COMMERCIAL CODE
COMMERCIAL CODE
With the participation of Louis VOGEL, Professor at the University of Paris II and, for the Book VI on Businesses in difficulty, of Françoise PEROCHON, Professor at the University of Montpellier I
BOOK I Commerce in general Articles L110-1 to
L146-4 TITLE I The commercial act Articles L110-1 to
L110-4
Article L110-1 The law provides that commercial instruments are: 1° All purchases of chattels in order to resell this, either in kind or after having worked and developed this; 2° All purchases of real property in order to resell this, unless the purchaser has acted in order to construct one or
more buildings and to sell these en bloc or site-by-site; 3° All intermediate operations for the purchase, subscription or sale of buildings, business or shares of property
companies; 4° All chattels rental undertakings; 5° All manufacturing, commission and land or water transport undertakings; 6° All supply, agency, business office, auction house and public entertainment undertakings; 7° All exchange, banking or brokerage operations; 8° All public banking operations; 9° All obligations between dealers, merchants and bankers; 10° Bills of exchange between all persons.
Article L110-2 The law also deems commercial instruments to be: 1° All construction undertakings and all purchases, sales and resales of ships for inland and foreign-going
navigation; 2° All sea shipments; 3° All purchases and sales of ship’s tackle, apparatus and foodstuffs; 4° All chartering or chartering and bottomry loans; 5° All insurances and other contracts relating to maritime trade; 6° All agreements and conventions on crew wages and rents; 7° All engagements of seamen for the service of commercial ships.
Article L110-3 With regard to traders, commercial instruments may be proven by any means unless the law specifies otherwise.
Article L110-4 I.- Obligations deriving from trade between traders or between traders and non-traders shall be prescribed after ten
years unless they are subject to special shorter periods of prescription. II.- All claims for payment shall be prescribed: 1° For food supplied to seamen on the captain’s orders, one year after delivery; 2° For the supply of materials and other items needed for the construction, equipment or supply of the ship, one
year after these foodstuffs are provided; 3° For built structures, one year after the acceptance of the structures. III.- Claims for payment of the wages of officers, seamen and other crewmembers shall be prescribed after five
years in accordance with Article 2277 of the Civil Code.
TITLE II Traders Articles L121-1 to
L128-6
CHAPTER I Definition and status Articles L121-1 to
L121-3
SECTION I
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COMMERCIAL CODE Capacity of trader Articles L121-1 to
L121-3
Article L121-1 Traders are those who carry out commercial instruments and who make this their usual profession.
Article L121-2 Minors, even when declared of full age and capacity, may not be traders.
Article L121-3 Spouses of traders shall be deemed to be traders only if they carry out a separate commercial activity from that of
their spouse.
SECTION II Spouses of craftspeople and traders working in the family-owned undertaking
CHAPTER II Foreign traders Articles L122-1 to
L122-4
Article L122-1 (Order No. 2004-279 of 25 March 2004 Art. 1 1 Official Journal of 27 March 2004)
A foreign national shall not be engaged in a commercial, industrial or handicraft occupation in France in a manner which requires his registration or inclusion in the register of companies or the trade register without the prior consent of the Prefect of the Department in which he envisages conducting his business initially.
Article L122-2 Any breach of the requirements of Article L.122-1 and of those in the implementing decree specified in Article
L.122-4 shall be punished by a prison sentence of six months and a fine of 25 000 F. In cases of recidivism, the penalties shall be doubled. The court may also order the closure of the establishment.
Article L122-3 (Order No. 2004-279 of 25 March 2004 Art. 1 2 Official Journal of 27 March 2004)
I. - The provisions of Articles L. 122-1 and L. 122-2 do not apply to the citizens of a European Community member state, a European Economic Area member state or a member state of the Organisation for Economic Cooperation and Development acting on their own behalf or on behalf of either another citizen of such a State or a company incorporated pursuant to the legislation of such a State and having its registered office, its principal administrative establishment or its principal place of business in such a State.
II. - However, when a foreign national or a company referred to in I creates an agency, a branch or a subsidiary on French soil or provides services there, the benefit of I shall be granted only if:
1. The foreign national is established in a European Community member state, a European Economic Area member state or a member state of the Organisation for Economic Cooperation and Development;
2. The company, if it has only its registered office in the European Community, a European Economic Area member state or a member state of the Organisation for Economic Cooperation and Development, conducts a business which has an effective and continuous link with the economy of such a State.
Article L122-4 A Conseil d'Etat decree shall fix the conditions for implementing this chapter.
CHAPTER III General obligations of traders Articles L123-1 to
L123-28
SECTION I Commercial and companies register Articles L123-1 to
L123-11
Subsection 1 Persons required to register Articles L123-1 to
L123-5-1
Article L123-1 I.- A commercial and companies register shall be kept in which the following shall be registered as a result of their
declaration: 1° Natural persons with the capacity of trader, even if they are required to register in the trades register; 2° Companies and economic interest groups which have their registered office in a French department and which
have a legal personality in accordance with Article 1842 of the Civil Code or with Article L.251-4; 3° Commercial companies whose registered office is situated outside a French department and which have an
establishment in one of these departments;
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COMMERCIAL CODE 4° French public establishments of an industrial or commercial nature; 5° Other legal persons whose registration is specified by the acts and regulations; 6° Commercial delegations or commercial agents of foreign States, authorities or public establishments established
in a French department. II.- The registrations and instruments or documents filed as specified by a Conseil d'Etat decree shall appear in the
register in order to be brought to the attention of the public.
Article L123-2 No-one may be registered in the register if they do not meet the conditions required in order to carry out their
activity. Legal persons must also have complied with the formalities specified by the legislation and regulations in force relating thereto.
Article L123-3 If a trader who is a natural person fails to request registration by the specified deadline, the judge hearing the case
shall, either automatically or at the request of the procureur de la République or any person proving that they have an interest in this, make an order requiring the trader to request registration.
In accordance with the same conditions, the judge may order any person registered in the commercial and companies register, who has not requested these by the specified deadlines, to make the additional entries or corrections which must be made in the register, to make the entries or corrections needed in the event of incorrect or incomplete declarations or to deregister.
The clerk of a court delivering a decision requiring a person to register must notify this decision to the clerk of the Tribunal de commerce whose jurisdiction covers the registered office or main establishment of the interested party. The clerk of the Tribunal de commerce receiving the decision shall refer this to the judge responsible for overseeing the register.
Article L123-4 (Law No 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
If any person ordered to request a registration, a supplementary or amending entry, or a striking-off in the trade register should fail to comply with that requirement without an excuse deemed to be valid within two weeks of the date on which the order made by the judge entrusted with supervision of the list directing him to complete one of those formalities becoming final, a fine of €3,750 euros shall be imposed on that person.
The court may, moreover, deprive the person concerned of the right to vote in, and to stand in, elections to the commercial courts, the chambers of commerce and industry and the industrial tribunals for a period of up to five years.
The court orders that the registration, the notations or the striking-off that must be recorded in the companies register be entered therein within a specified timeframe, at the request of the person concerned.
Article L123-5 The act of giving, in bad faith, incorrect or incomplete information with a view to registration, removal of the
registration or additional entries or corrections in the commercial and companies register shall be punished by a fine of 30 000 F and a prison sentence of six months.
The provisions of the second and third paragraphs of Article L.123-4 shall apply in the cases specified in this article.
Article L123-5-1 (inserted by Act No 420 of 15 May 2001, Article 123 II, Official Gazette of 16 May 2001)
At the request of any interested party or the procureur de la République, the president of the court, ruling in interlocutory proceedings, may enjoin, subject to a penalty, the manager of any legal person to file the documents and instruments with the commercial and companies register which this legal person is required to do by the acts or regulations.
The president may, in accordance with the same conditions and to this same end, appoint a representative responsible for fulfilling these formalities.
Subsection 2 Keeping of the register and effects attached to registration Articles L123-6 to
L123-9-1
Article L123-6 The commercial and companies register shall be kept by the clerk of each Tribunal de commerce. It shall be
overseen by the president of the court or a judge entrusted with this responsibility who shall be competent for all disputes between the person under obligation and the clerk.
Article L123-7 The registration of a natural person shall involve the presumption of the capacity of trader. However, this
presumption shall not be binding on third parties and administrations which provide proof to the contrary. Third parties and administrations shall not be permitted to rely on this presumption if they know that the liable person is not a trader.
Article L123-8 The person obliged to register who has not requested this by the expiration of a period of fifteen days from the start
of their activity may not rely on, until registration, the capacity of trader with regard to both third parties and public
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COMMERCIAL CODE administrations. However, this person may not invoke their failure to register in order to avoid the responsibilities and obligations inherent in this capacity.
Without prejudice to the application of Article L.144-7, registered traders who assign their business or hand over the operation of this, particularly in the form of real estate management, may not plead the cessation of their commercial activity in order to avoid claims for damages to which they shall be subject due to the obligations contracted by their successors in the operation of the business until the day when the corresponding additional entry or removal of the registration has been carried out.
Article L123-9 Persons obliged to register may not, in carrying out their activity, raise in respect of third parties or public
administrations, which may, however, rely on these, the acts and instruments subject to entry unless the latter have been published in the register.
In addition, persons obliged to file instruments or documents in the annex to the register may not raise these against third parties or administrations unless the corresponding formality has been carried out. However, third parties or administrations may rely on these instruments or documents.
The provisions of the above paragraphs shall apply to the acts or instruments subject to entry or filing even if they are covered by another legal publication. Third parties and administrations which personally knew about these acts or instruments may not, however, rely on these.
Article L123-9-1 (inserted by Law No. 2003-721 of 1 August 2003 Article 2 (I) Official Gazette of 5 August 2003)
The court registrar or the body referred to in the last paragraph of Article 2 of Law No. 94-126 of 11 February 1994 relating to individual initiative and enterprise shall deliver a receipt, free of charge, for the submission of an application to create a business to any person subject to registration, as soon as that person has submitted a duly completed application for registration. The said receipt allows the necessary formalities to be completed with the public bodies and the private bodies entrusted with rendering a public service, under the personal responsibility of the natural person having tradesman status or who is acting on behalf of the company being formed. It bears the legend:"Registration pending".
The implementing provisions for the present Article are defined in a Conseil d'Etat decree.
Subsection 3 Place of domicile of registered persons Articles L123-10 to
L123-11
Article L123-10 (inserted by Law No. 2003-721 of 1 August 2003 Article 6 (I) (1) Official Gazette of 5 August 2003)
Natural persons applying for registration in the companies register or the trade register must declare their business address and substantiate possession thereof.
Natural persons may declare the address of their place of residence and conduct their business there, barring any legislative provision or contractual stipulation to the contrary.
Natural persons who do not have business premises may declare their place of residence, solely for the purpose of providing a business address. Such a declaration does not give rise to any change of use or to application of the commercial lease regulations.
NB: Law No. 2003-721 of 1 August 2003 Article 6 II: These provisions apply to businesses listed in the companies register or the trade register on the date of promulgation of Law No. 2003-721 of 1 August 2003.
Article L123-11 (Law No 2003-721 of 1 August 2003 Article 6 (I) (2) Official Gazette of 5 August 2003)
Any legal entity applying for registration in the companies register must substantiate possession of the premises which will house its registered office, alone or with others, or, if the registered office is to be located abroad, the agency, branch or representation established on French soil.
A company is allowed to have its registered address in premises occupied by several businesses under the conditions determined in a Conseil d'Etat decree. That decree also stipulates the equipment or services that are required to justify the reality of the registered office of the company domiciled there.
NB: Law No. 2003-721 of 1 August 2003 Article 6 II: These provisions apply to businesses registered in the companies register or the trade register on the date of promulgation of Law No. 2003-721 of 1 August 2003.
SECTION II Accounts of traders Articles L123-12 to
L123-28
Subsection 1 Financial liabilities applicable to all traders Articles L123-12 to
L123-24
Article L123-12 All natural or legal persons with the capacity of trader shall enter in their accounts the movements affecting the
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COMMERCIAL CODE assets of their undertaking. These movements shall be recorded chronologically.
These persons must check, by means of a stocktake at least once every twelve months, the existence and value of the assets and liabilities of the undertaking.
They must prepare annual accounts at the end of the financial year in view of the entries made in the accounts and the stocktake. These annual accounts shall consist of the balance sheet, profit and loss account and an annex which shall form an inseparable whole.
Article L123-13 The balance sheet shall describe individually the assets and liabilities of the undertaking and shall clearly show the
equity capital. The profit and loss account shall summarise the income and expenditure for the financial year without taking into
account their date of receipt or payment. It shall show, according to the difference after deducting the depreciation and provisions, the profit or loss for the financial year. The income and expenditure, classed by category, shall be presented in the form of either tables or lists.
The amount of the undertaking’s commitments in terms of pensions, supplemental pensions, compensation and allowances due to retirement or similar advantages of its staff members or partners and its managing agents shall be indicated in the annex. In addition, undertakings may decide to enter in the balance sheet, in the form of a provision, the amount corresponding to all or part of these commitments.
The annex shall supplement and comment on the information given in the balance sheet and the profit and loss account.
Article L123-14 The annual accounts shall be honest and truthful and shall ensure a fair representation of the assets, financial
situation and results of the undertaking. When the application of an accounting requirement is not sufficient to ensure the fair representation indicated in this
article, additional information must be provided in the annex. If, in an exceptional case, the application of an accounting requirement proves to be unsuitable in order to ensure a
fair representation of the assets, financial situation or results, an exception must be made to this. This exception shall be indicated in the annex and duly reasoned, with an indication of its effect on the assets, financial situation and results of the undertaking.
Article L123-15 The balance sheet, profit and loss account and annex shall include as many headings and items as are needed to
ensure a fair representation of the assets, financial situation and results of the undertaking. Each item in the balance sheet and profit and loss account shall contain the figure relating to the corresponding item for the previous financial year.
The classification of the elements of the balance sheet and profit and loss account, the elements forming the equity capital and the texts to be included in the annex shall be fixed by decree.
Article L123-16 Traders, whether natural or legal persons, may, in accordance with the conditions fixed by a decree, adopt a
simplified presentation of their annual accounts when these do not exceed, at the end of the financial year, the figures fixed by decree for two of the following criteria: the total of their balance sheet, the net amount of their turnover or the average number of permanent employees during the financial year. They shall lose this option when this condition is not met for two successive financial years.
Article L123-17 Unless an exceptional change occurs in the trader’s situation, whether a natural or legal person, the presentation of
the annual accounts and the valuation methods used may not be altered from one financial year to the next. If alterations occur, these shall be described and justified in the annex.
Article L123-18 On its date of entry into the capital assets, property acquired for money consideration shall be recorded at its cost of
acquisition, property acquired free of charge shall be recorded at its market value and property produced shall be recorded at its cost of production.
For fixed assets, the values used in the stocktake shall, if applicable, take account of the depreciation plans. If the value of a fixed asset falls below its net book value, the latter shall be reduced to the stocktake value at the end of the financial year, whether or not the depreciation is final.
Wasting assets shall be valued either at its weighted average cost of acquisition or production or by considering that the first item out is the first item in.
The asset appreciation noted between the stocktake value of an item and its entry value shall not be entered in the accounts. If this results from a revaluation of all the tangible and capital assets, the revaluation difference between the current value and the net book value may not be used to offset losses. It shall be clearly entered on the liabilities side of the balance sheet.
Article L123-19 The assets and liabilities shall be valued separately. No offsetting may be applied between the assets and liabilities items of the balance sheet or between the income
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COMMERCIAL CODE and expenditure items of the profit and loss account.
The opening balance sheet for a financial year shall correspond to the closing balance sheet for the previous financial year.
Article L123-20 The annual accounts must respect the precautionary principle. In order for these accounts to be prepared, traders,
whether natural or legal persons, shall be presumed to be continuing their activities. Even in the absence or insufficiency of any profit, the necessary depreciation and provisions must be established. The risks and losses occurring during the financial year or during a previous financial year shall be taken into
account, even if they are identified between the end date of the financial year and that of the preparation of the accounts.
Article L123-21 Only the profits made by the end date of a financial year may be entered in the annual accounts. The profit made
on a partially executed transaction, accepted by the other contracting party, may be entered, after the stocktake, when its completion is certain and when it is possible, using the projected accounting documents, to value the overall profit of the transaction with sufficient safety.
Article L123-22 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The accounting documents are expressed in euros and drafted in the French language. The accounting documents and supporting documentation are kept for ten years. The accounting documents relating to the recording of transactions and the inventory are prepared and maintained
without blanks or alterations of any kind in conditions determined in a Conseil d'Etat decree.
Article L123-23 Duly kept accounts may be accepted in the courts in order to act as proof between traders in respect of commercial
instruments. If the accounts have not been duly kept, they may not be invoked by their author for the latter’s benefit. The communication of accounting documents may be ordered in the courts only in cases of succession, joint
ownership and partition of a company and in the event of administrative order or court-ordered winding-up.
Article L123-24 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
All traders are required to open a current account with a bank or the post office.
Subsection 2 Financial liabilities applicable to certain traders who are natural persons Articles L123-25 to
L123-28
Article L123-25 As an exception to the provisions of the first and third paragraphs of Article L.123-12, natural persons placed
voluntarily or ipso jure under the effective simplified taxation system may record claims and debts only at the end of the financial year and shall not have to prepare an annex.
Article L123-26 As an exception to the provisions of the second paragraph of Article L.123-13, natural persons placed voluntarily or
ipso jure under the effective simplified taxation system may record in their profit and loss account, according to its payment date, expenditure whose frequency does not exceed one year, excluding purchases.
Article L123-27 As an exception to the provisions of the third paragraph of Article L.123-18, natural persons placed voluntarily or
ipso jure under the effective simplified taxation system may carry out a simplified valuation of the stocks and work in process according to a method fixed by decree.
Article L123-28 As an exception to the provisions of Articles L.123-12 to L.123-23, natural persons subject to the taxation system for
micro-undertakings may not be required to prepare annual accounts. They must, in accordance with the conditions fixed by decree, record on a day-by-day basis the accounts received and the expenses paid and they must produce an end-of-year statement of the accounts received and expenses paid, the financial debts, the fixed assets and the stocks valued in a simplified manner.
However, when their annual turnover does not exceed an amount of 120 000 F, natural persons registered in the commercial and companies register may keep only one book chronologically recording the amount and origin of the income which they receive due to their professional activity. A decree shall fix the conditions in accordance with which this book shall be kept.
CHAPTER IV Cooperative associations of retailers Articles L124-1 to
L124-16
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COMMERCIAL CODE Article L124-1 (Act No. 2001-420 of 15 May 2001 Art. 64 I, II and III Official Journal of 16 May 2001) (Order No. 2004-274 of 25 March 2004 Art. 1 Official Journal of 27 March 2004)
Through the collective efforts of their members, retail cooperative societies seek to improve the conditions in which they conduct their business. To that end, they may, inter alia, directly or indirectly engage in the following activities on behalf of their members:
1. Supplying them with some or all of the goods, commodities, services, equipment and materials they need in order to conduct their business by, inter alia, establishing and maintaining stocks of all kinds of goods, by building, purchasing, or leasing and managing private shops and warehouses, and by carrying out in their own premises or those of their members any appropriate works, conversions or modernisation;
2. Bringing together on one site the businesses belonging to their members, creating and managing all services collectively needed to operate those businesses, building, purchasing or renting the buildings required for their activities or those of their members, and managing them, all as provided for in Chapter V of the present Part;
3. Within the framework of the legislative provisions relating to financial activities, to facilitate access by the members and their clients to the various financing and credit facilities available;
4. Carrying out activities which are complementary to those referred to above, and, inter alia, providing their members with assistance in relation to technical, financial and accounting management;
5. Purchasing businesses in respect of which, contrary to the provisions of Article L. 144-3, leasing-management rights are granted to a member within two months and which, under pain of the penalties laid down in the second and third paragraphs of Article L. 124-15, must be re-conveyed within a maximum period of seven years;
6. Drawing up and implementing a common commercial policy designed to ensure the development and permanence of its members by any means, including:
- the establishment of an appropriate legal framework; - the provision of trademarks or brand names which they own or have the use of; - the carrying out of commercial operations, of an advertising or other nature, which may include common pricing; - the development of common methods and models for purchasing, stocking and presenting products, and for the
architecture and organisation of the outlets; 7. Acquiring shareholdings, including majority interests, in directly or indirectly associated retail businesses.
Article L124-2 Cooperative associations of retailers may not allow non-member third parties to benefit from their services. However, cooperative associations of retail pharmacists may not refuse their services, in the event of an
emergency, to non-member retail pharmacists and to all the public or private establishments where patients are treated, when these establishments duly own a pharmacy.
Article L124-3 Cooperative associations of retailers shall be public limited companies with variable capital formed and operating in
accordance with the provisions of Book II, Title III, Chapter I. They shall be governed by the provisions of the present chapter and by those which are not contrary hereto in Book II, Titles I to IV and in Act No 1775 of 10 September 1947 defining the rules governing cooperation. The provisions of Book II, Titles I to IV on the formation of statutory reserves shall apply thereto.
Only associations and unions formed in order to carry out the operations referred to in Article L.124-1 and which comply, in respect of their formation and operation, with the requirements of this chapter may be regarded as cooperative associations of retailers or unions of these associations. Only these shall be authorised to take this title and to add it to their name.
Article L124-4 (Order No. 2004-274 of 25 March 2004 Art. 2 Official Journal of 27 March 2004)
Without prejudice to application of the provisions of Article 3 bis of Act No. 47-1775 of 10 September 1947 instituting cooperative status, any retail trading entity which is properly established in a Foreign State may become a member of cooperative retail societies. The same applies to the cooperative companies governed by the present Chapter, as well as companies which are registered in both the trade register and the register of companies. The cooperatives governed by the present Chapter may admit to membership natural persons or legal entities having relevant commercial activities and possessing the requisite competence.
Cooperative retail companies engaged in the activities referred to in 2 of Article L. 124-1 may, moreover, admit to membership any person referred to in Article L. 125-1.
Retailers whose cooperative is affiliated to another cooperative retail society may benefit directly from that society's services.
Article L124-5 The associations governed by this chapter may establish between them unions having the same aims as those
defined in Article L.124-1. These unions must comply, in respect of their formation and operation, with the same rules as said associations.
The second paragraph of Article 9 of the Act of 10 September 1947 defining the rules governing cooperation shall apply thereto.
Unions of cooperative associations of retailers may contain only cooperative associations of retailers or their members. Retailers whose cooperative is affiliated to a union may benefit directly from the services of this union.
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COMMERCIAL CODE Cooperative associations of retailers and their unions may form mixed unions with other cooperative associations
and their unions. As an exception to Article L.225-1, the number of members in a union governed by this article may be less than
seven.
Article L124-7 The articles of association may specify that cooperative associations of retailers shall be combined in accordance
with the conditions specified in Article 3a of the Act of 10 September 1947 defining the rules governing cooperation. In this case, these associations may not use the services of the cooperative association with which they are combined.
Article L124-8 The decisions of the general meeting shall only be valid when one-third of the members existing on the date of the
meeting are present or represented. However, the decisions of meetings convened in order to amend the articles of association shall only be valid if at
least half of the members existing on the date when the meeting is convened are present or represented. Members who have voted by post, where the articles of association authorise this, shall be taken into account for
determining the quorum. When the quorum is not reached, a new meeting shall be convened. Its decisions shall be valid whatever the
number of members present or represented.
Article L124-9 (Order No. 2004-274 of 25 March 2004 Art. 4 Official Journal of 27 March 2004)
The deliberations of the general meeting are taken on a majority of the votes held by the members present or represented. However, a majority of two thirds of the votes of the members present or represented is required for any change to the articles of association.
If the cooperative is engaged in the activities referred to in 2 of Article L. 124-1, this provision does not apply in the circumstances referred to in Article L. 125-10.
Article L124-10 The exclusion of a member may be ordered, as applicable, by the board of directors or the supervisory board, with
the interested party being duly heard. All members subject to an exclusion order shall be able to appeal against this decision before the general meeting
which shall rule on the appeal at the first routine meeting following the notification of exclusion. This exclusion shall enter into force on the date of notification of its acceptance by the general meeting.
However, the board of directors or the supervisory board, as applicable, may, in the interests of the association, suspend the exercise of the rights which the excluded member enjoys due to being a member of the cooperative until notification is sent to the latter of the general meeting’s decision. The duration of this suspension may not exceed one year.
If the decision to exclude a member is not justified by a serious and legitimate reason, the court, referred to within one month of the notification of refusal of the member’s appeal by the general meeting, may either reinstate the unduly excluded member or allocate damages thereto or order both of these measures.
When the cooperative carries out the activities specified in 2° of Article L.124-1, the provisions of this article shall not apply. Articles L.125-15 and L.125-16 shall apply.
Article L124-11 (Order No. 2004-274 of 25 March 2004 Art. 5 Official Journal of 27 March 2004)
If a cooperative is engaged in the activities referred to in 2 of Article L. 124-1, the redemption of the cooperative's shares held by a withdrawing or excluded member takes place, contrary to Article 18 of the act of 10 September 1947 instituting cooperative status, as provided for in Articles L. 125-17 and L. 125-18.
The said member nevertheless remains liable, towards both the cooperative and third parties, for a period of five years commencing on the day on which it definitively ceases to be a member, in respect of obligations which existed at the close of the financial year during which it left the cooperative. Pursuant to the previous paragraph, the board of directors or the supervisory board, as applicable, may retain some or all of the sums owed to the former member, for a maximum period of five years, limited to the amount required to guarantee the obligations for which it is liable pursuant to the present paragraph, unless the party concerned provides sufficient sureties.
Article L124-12 The routine shareholders’ meeting may, by ruling in accordance with the quorum and majority conditions of the
special shareholders’ meeting, convert into shares all or part of the refunds frozen in individual accounts and all or part of the refunds distributable to the cooperative members in the last financial year.
In the latter case, the rights of each cooperative member to the allotment of shares resulting from this increase in capital shall be identical to those which they would have to the distribution of the refunds.
Article 124-13 The central cooperative credit agency shall be authorised to carry out all financial transactions in favour of
associations formed in accordance with the provisions of this chapter. In particular it shall make available thereto the funds which are specifically allotted to the agency or which it may obtain in the form of loans or by rediscounting subscribed bills, it shall give its backing or act as guarantor in order to guarantee their loans and it shall receive and
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COMMERCIAL CODE manage their fund deposits.
Article L124-14 If a cooperative association or union governed by the provisions of this chapter is dissolved, and subject to the
provisions of the following paragraphs of this article, the net surplus of assets over the capital shall be passed either to other cooperative associations or unions of cooperatives or to works of general or professional interest.
However, a cooperative association or union may be authorised by an Order of the Minister for Economic and Financial Affairs, adopted following an opinion from the Cooperation Authority, to divide the net surplus of assets among its members. This division may not include the part of the net surplus of assets resulting from aid granted directly or indirectly to the association or union by the State or by a public authority. This part must be repaid in accordance with the conditions specified by the authorisation Order.
The division between the members of the net surplus of assets shall occur ipso jure when the cooperative association carries out the activities referred to in 2° of Article L.124-1.
Article L124-15 All groups of retailers established in order to carry out one or more of the activities referred to in 1°, 3° and 4° of
Article L.124-1 must, if they have not adopted the form of a cooperative association of retailers governed by the provisions of this chapter, be formed as a public limited company, limited liability company, economic interest group or European economic interest group.
If a group of retailers is formed in breach of the provisions of the previous paragraph, this shall be punished by a fine of 60 000 F.
The court may also order the cessation of the operations of the body in question and, if applicable, the confiscation of the commodities purchased and the closure of the premises used.
Article L124-16 Cooperative associations of retailers for joint purchasing and their unions formed in accordance with Act No 1070 of
2 August 1949 shall be regarded as meeting the provisions of this chapter without needing to amend their articles of association.
However, the associations benefiting from the provisions of the previous paragraph shall bring their articles of association into line when they amend these subsequently.
CHAPTER V Collective shops of independent traders Articles L125-1 to
L125-19
SECTION I Formation of the collective shop Articles L125-1 to
L125-9
Article L125-1 The provisions of this chapter shall apply to natural or legal persons gathered in the same place and under the
same name in order to operate, according to common rules, their business or their undertaking registered in the trades register without giving up ownership of this, thus creating a collective shop of independent traders.
Article L125-2 The persons referred to in Article L.125-1 shall form, in the form of an economic interest group, public limited
company with variable capital or a cooperative association of retailers, a legal person which shall own and use or solely use the buildings and annexed areas of the collective shop, define and implement the common policy and organise and manage the common services.
The economic interest group, company or association which owns all or part of the land, buildings and annexed areas of the collective shop may not return all or part of this property to its members during the existence of said shop.
Only economic interest groups, public limited companies with variable capital and cooperative associations of retailers which comply, in respect of their formation and operation, with the requirements of this chapter may be regarded as collective shops of independent traders. These alone shall be authorised to take this title and to add it to their name.
Article L125-3 The economic interest group, company or association which has recourse to leasing shall be regarded as a user
within the meaning of Article 5b of Order No 837 of 28 September 1967.
Article L125-4 Each member of the economic interest group, company or association shall hold inseparable shares in the use of a
space determined by the formation agreement or articles of association and shall benefit from common services. The formation agreement or articles of association may allot any holder another space for seasonal activities. The meeting of members or the general meeting, as applicable, shall alone be competent to amend, with the
agreement of the interested parties, the spaces thus allotted. The provisions of this chapter on partner’s shares shall apply to the shares referred to in the first paragraph above.
Article L125-5
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COMMERCIAL CODE When a business or an undertaking registered in the trades register is transferred to or created in the collective
shop, no contribution shall be made to the group, company or association for the shares allotted to its owner. The shares in the group, company or association shall not represent the value of the business or undertaking. Any contributions other than in cash are also prohibited.
Article L125-6 In the event of leasing-management of the business or the undertaking registered in the trades register, only the
lessor shall be a member of the group, company or association. The transfer within the collective shop of a pre-existing business or undertaking may occur only with the agreement
of the lessee-manager.
Article L125-7 The owner of a business subject to a preferential right or charge specified by Chapters I to III of Title IV of this book
must, prior to joining a collective shop and to transferring this business to said shop, comply with the publication formalities specified in Articles L.141-21 and L.141-22.
If the preferred creditor or charge has not notified any objection by filing this with the registry within ten days of the last in date of the publications specified in Articles L.141-12 and L.141-13, this creditor shall be deemed to have agreed to the membership of the owner of the business.
In the event of an objection, the lifting of this shall be ordered by the courts if the owner of the business proves that the securities which the creditor has are not reduced by membership of the collective shop or that guarantees which are at least equivalent are offered thereto. If the objection is not lifted, the trader may not become a member of the collective shop while remaining the owner of the business.
Article L125-8 The formation agreement or articles of association shall, in order to be valid, and under the joint liability of the
signatories, contain the express specification that no business shall be subject to the preferential right or a charge specified in Chapters I to III of Title IV of this book or, in the opposite case, that no objection has been formed prior to the membership of one of the members or that the lifting of the objection has been ordered by the courts.
Article L125-9 Collective shops of independent traders already created in the form of a legal person may, by their adaptation or
conversion, be placed under the system specified by this chapter. All members may, through interlocutory proceedings, request the appointment of a representative specially
entrusted with convening the meeting in order to rule on these adaptations or conversions. Notwithstanding any provision to the contrary, these decisions shall be taken by a majority in number of the
members forming the legal person. Those who did not take part in this may, however, withdraw by demanding the redemption of their shares in accordance with the conditions specified in Articles L.125-17 and L.125-18.
SECTION II Administration of the collective shop Articles L125-10 to
L125-11
Article L125-10 Internal regulations shall be annexed to the formation agreement or articles of association, as applicable. The formation agreement or articles of association, and the internal regulations, may be amended only by the
meeting, or the general meeting, as applicable, ruling by an absolute majority in number of the members of the group, company or association or, if the formation agreement or articles of association specify this, by a larger majority. The same shall apply to decisions on approval or exclusion.
Other decisions shall be taken in accordance with the conditions specific to each of the forms specified in Article L.152-2. However, notwithstanding the provisions of Book II, the articles of association of a public limited company with variable capital formed pursuant to this chapter may stipulate that each of the shareholders has one vote at the general meeting, whatever the number of shares held thereby.
Article L125-11 The internal regulations shall determine the rules for ensuring a common business policy. It shall fix the general
operating conditions and in particular: 1° The days and times of opening and, if applicable, the seasonal periods of closure or the annual holidays; 2° The organisation and management of the common services and the distribution of the charges corresponding to
these services; 3° Subject to the legislation in force in this respect, the development of competing activities and the determination of
the annexed activities which may be carried out by each member in competition with those of other members of the shop;
4° The choice of advertising and decor specific to each space and possibly their harmonisation; 5° The collective or individual actions to promote the shop, particularly those of a seasonal nature.
SECTION III Approval and exclusion Articles L125-12 to
L125-18
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COMMERCIAL CODE Article L125-12
The formation agreement or articles of association, as applicable, may subordinate any assignment of shares to the approval of the transferee by the meeting of the group or by the general meeting of the company or association, as applicable. The meeting or general meeting shall decide within one month of the date of the approval request.
The formation agreement or articles of association, as applicable, may also subject to this approval the legal successors of a deceased shareholder who did not participate in his activity in the collective shop.
Refusal of approval shall confer the right to compensation in accordance with the conditions specified in Articles L.125-17 and L.125-18.
Article L125-13 The approval clause shall not be binding in the event of a forced sale of shares, whether or not these have been
subject to a charge.
Article L125-14 The formation agreement or articles of association, as applicable, may subordinate the leasing-management of a
business or craft manufacturing company in the collective shop to the approval of the lessee-manager by the meeting. In the event of administrative order or winding-up proceedings of the owner, this clause may not be invoked if the
conclusion of a real estate management contract is authorised by the court in accordance with the provisions of Title II of Book VI.
Article L125-15 The administrative body of the collective shop may send a warning to any member who, personally or through the
persons to whom the latter has entrusted the operation of his business or undertaking, breaches the internal regulations. In the event of real estate management, this warning shall also be notified to the lessee-manager. If, in the following three months, this warning does not produce any effect and if the legitimate interests of the
collective shop or of certain of its members are compromised, the meeting of members, or the general meeting, as applicable, shall have the option of deciding, by the majority specified in Article L.125-10, on the exclusion of the interested party.
Until the exclusion decision becomes final, the person excluded shall be able to put forward one or more transferees in accordance with the conditions determined by the formation agreement or articles of association.
Article L125-16 Subject to the shares valuation procedure specified in the second paragraph of Article L.125-17, any member of a
collective shop may refer to the Tribunal de grande instance, within one month of its notification by registered letter with a request for acknowledgement of receipt, any decision taken pursuant to Articles L.125-12, L.125-14 and the third paragraph of Article L.125-15.
The court may declare void or alter the decision referred thereto or replace this with its own decision. Notwithstanding any clause to the contrary, recourse to the courts shall suspend the implementation of the referred
decision, except in the event of an exclusion decision motivated by the non-use of spaces or by the non-payment of charges.
Article L125-17 In the event of exclusion, departure or death accompanied by the refusal of approval of the transferee or
successors, the shareholder or, in the event of death, the latter’s legal successors, shall be able to transfer or dispose of the business or the undertaking registered in the trades register. The new allottee of the space or, failing this, the group, company or association, as applicable, shall reimburse thereto the value of their shares plus, where applicable, the asset appreciation which may have resulted from their developments to the space which they held.
This value shall be fixed by the meeting or general meeting, as applicable, at the same time as the exclusion decision or that refusing to approve the transferee or successors is taken. In the event of disagreement, this shall be determined on the date of these decisions by an expert appointed by an order of the president of the Tribunal de grande instance ruling in interlocutory proceedings. This order shall not be open to any appeal, notwithstanding any clause to the contrary. The expert report shall be subject to the approval of the president of the Tribunal de grande instance ruling in interlocutory proceedings.
Article L125-18 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
In the cases referred to in the first paragraph of Article L. 125-17, the group or the company can only proceed with the installation of a new beneficiary if it has paid the former holder of the shares or, if he is deceased, his assigns, the sums referred to in the said Article L. 125-17, or, failing that, a consideration determined by the presiding judge of the district court ruling on a summary basis.
However, such prior payment is not required when a guarantee has been provided for the value of those sums or of that provision by a lending institution or a financial institution duly authorised for that purpose, or when that amount has been placed in the hands of a representative, designated if necessary by an order made on a summary basis.
Moreover, if it is a cooperative, the board of directors or the executive board, as applicable, can invoke the provisions of the second line of Article L. 124-11.
SECTION IV Dissolution Article L125-19
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COMMERCIAL CODE Article L125-19
Unless a clause in the formation agreement or articles of association specifies otherwise, the administrative order or winding-up proceedings of one of the members shall not lead ipso jure to the dissolution of the economic interest group.
CHAPTER VI Mutual guarantee schemes Article L126-1
Article L126-1 The rules creating mutual guarantee schemes between traders, industrialists, manufacturers, craftspeople,
commercial companies, members of the professions and owners of property or property rights and also between the operators mentioned in Article L.524-1 shall be fixed by the Act of 13 March 1917.
CHAPTER VII The business-plan support contract for the creation or takeover of a business activity Articles L127-1 to
L127-7
Article L127-1 (inserted by Law No. 2003-721 of 1 August 2003 Article 20 Official Gazette of 5 August 2003)
The support provided for a business plan to create or take over a business activity is defined in a contract through which, using the means available to it, a legal entity undertakes to provide specific and continuous help to a natural person who is not in full-time employment and who undertakes to follow a preparatory programme covering the creation, takeover and management of a business activity. Such a contract can also be entered into by a legal entity and a manager who is the sole partner of another legal entity.
Article L127-2 (inserted by Law No. 2003-721 of 1 August 2003 Article 20 Official Gazette of 5 August 2003)
The business-plan support contract is entered into for a term which cannot exceed twelve months, renewable twice. The terms and conditions of the support and preparation programme and the respective commitments of the contracting parties are stipulated in the contract. It also determines the conditions under which the person benefiting therefrom can make commitments to third parties in relation to the planned business activity.
The contract is entered into in writing, otherwise it is null and void.
Article L127-3 (inserted by Law No. 2003-721 of 1 August 2003 Article 20 Official Gazette of 5 August 2003)
The fact that the legal entity providing support makes facilities available to the beneficiary to prepare him for the creation, or takeover and management, of the planned business activity does not, of itself, constitute any presumption of a relationship of subordination.
The provision of those means and any costs thereby incurred by the legal entity providing the support pursuant to the contract shall be posted to its balance sheet.
Article L127-4 (inserted by Law No. 2003-721 of 1 August 2003 Article 20 Official Gazette of 5 August 2003)
If a business activity begins while the contract is still in force, the beneficiary must register the business if the nature thereof makes this necessary.
Before any registration is effected, the commitments made to third parties by the beneficiary while the support and preparation programme was ongoing are, in regard to those third parties, assumed by the mentor. After registration, the supporting legal entity and the beneficiary are jointly and severally bound by the commitments made by the latter pursuant to the stipulations of the support contract, until it expires.
Article L127-5 (inserted by Law No. 2003-721 of 1 August 2003 Article 20 Official Gazette of 5 August 2003)
The business-plan support contract for the creation or takeover of a business activity cannot have as its object or its effect infringement of the provisions of Articles L. 125-1, L. 125-2, L. 324-9 or L. 324-10 of the Labour Code.
The act of creating or taking over a business must be clearly distinguished from the supervisory function.
Article L127-6 (inserted by Law No. 2003-721 of 1 August 2003 Article 20 Official Gazette of 5 August 2003)
The professional and social situation of the beneficiary of the business-plan support contract is determined by Articles L. 783-1 and L. 783-2 of the Labour Code.
The supporting legal entity is liable in regard to third parties for any damage caused by the beneficiary as a consequence of the support and preparation programme referred to in Articles L. 127-1 and L. 127-2 prior to the registration referred to in Article L. 127-4. After the registration, the supporting legal entity guarantees the liability assumed under the support contract, provided that the beneficiary complied with the terms and conditions of the contract through to its expiry.
Article L127-7 (inserted by Law No. 2003-721 of 1 August 2003 Article 20 Official Gazette of 5 August 2003)
The publication formalities for business-plan support contracts for the creation or takeover of a business activity and the present chapter's other implementing measures are determined in a Conseil d'Etat decree.
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COMMERCIAL CODE CHAPTER VIII Concerning Incapacity to Practice a Commercial or Industrial Profession Articles L128-1 to
L128-6
Article L128-1 (inserted by Order No. 2005-428 of 6 May 2005 Art. 1 Official Journal of 7 May 2005)
No person shall, either directly or indirectly, for his own account or on behalf of another, engage in a commercial or industrial occupation, direct, administer, manage or control a commercial or industrial venture or a commercial company, in whatever capacity, if he has been the subject of a final judgement within the previous ten years:
1 For a crime; or 2 Has been sentenced to at least three months' imprisonment without suspension for: a) An offence covered by Part I of Book III of the Penal Code or an offence covered by special laws punished with
the penalties imposed for fraud and breach of trust; b) Handling stolen goods or an offence treated as handling stolen goods or similar thereto referred to in section 2 of
Chapter I of Part II of Book III of the Penal Code; c) Money laundering; d) Bribery or accepting or soliciting bribes, influence peddling, misappropriation and fraudulent conversion of
property; e) Forgery, falsification of securities or other fiduciary instruments issued by the public authorities, falsification of
marks of authority; f) Participation in an association of criminals; g) Drug trafficking; h) Procuring or an offence covered by sections 2 and 2 bis of Chapter V of Part II of Book II of the Penal Code; i) An offence covered by Section 3 of Chapter V of Part II of Book II of the Penal Code; j) A violation of the commercial companies legislation covered by Part IV of Book II of the present code; k) Bankruptcy; l) Making loans at usurious rates of interest; m) An offence envisaged by the Act of 21 May 1836 prohibiting lotteries, or the Act of 15 June 1907 regulating
gaming in clubs and the casinos of seaside resorts, thermal spas and health resorts, or Act No. 83-628 of 12 July 1983 relating to games of chance;
n) An offence against the laws and regulations relating to foreign financial dealings; o) Tax fraud; p) An offence referred to in Articles L. 115-16 and L. 115-18, L. 115-24, L. 115-30, L. 121-6, L. 121-28, L. 122-8 to
L. 122-10, L. 213-1 to L. 213-5, L. 217-1 to L. 217-3, and L. 217-6 to L. 217-10 of the Consumer Code; q) An offence referred to in Articles L. 324-9, L. 324-10 and L. 362-3 of the Labour Code; 3 Dismissal from functions as a public official or law official.
Article L128-2 (inserted by Order No. 2005-428 of 6 May 2005 Art. 1 Official Journal of 7 May 2005)
Persons engaged in an activity referred to in Article L. 128-1 who are convicted of an offence covered by that same article must cease their activity within three months of the date on which the court's decision giving rise to incapacity to conduct that business became final.
Article L128-3 (inserted by Order No. 2005-428 of 6 May 2005 Art. 1 Official Journal of 7 May 2005)
In the event of a final judgement being pronounced by a foreign court for an offence which, under French law, constitutes a crime or an offence referred to in Article L. 128-1, the criminal court of the convicted person's domicile shall declare, at the request of the public prosecutor and after verifying the correctness and legality of the conviction and having duly heard the person concerned in closed session, that there are grounds for applying the incapacity referred to in Article L. 128-1.
The said incapacity also applies to any non-reinstated person who is the subject of a disqualification order issued by a foreign court which is enforceable in France. The application for an enforcement order may, in this specific case only, be entered by the public prosecutor before the Tribunal de grande instance of the convicted person's domicile.
Article L128-4 (inserted by Order No. 2005-428 of 6 May 2005 Art. 1 Official Journal of 7 May 2005)
The court which ordered the dismissal referred to in 3 of Article L. 128-1 may, at the request of the public official or law official dismissed, either lift the incapacity referred to in the aforementioned Article, or reduce its term.
Article L128-5 (inserted by Order No. 2005-428 of 6 May 2005 Art. 1 Official Journal of 7 May 2005)
Whoever contravenes the incapacities provided for in Articles L. 128-1, L. 128-2 and L. 128-3 shall incur the penalties laid down in Article 313-1 of the Penal Code.
Persons guilty of the offence referred to in the previous paragraph may also incur the additional penalty of confiscation of goods or assets as provided for in Article 131-21 of the Penal Code.
Article L128-6
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COMMERCIAL CODE (inserted by Order No. 2005-428 of 6 May 2005 Art. 1 Official Journal of 7 May 2005)
The provisions of the present chapter shall not impede application of the rules specific to the practising of certain professions.
They apply to persons who act as commercial representatives.
TITLE III Brokers, agents on commission, carriers and commercial agents Articles L131-1 to
L134-17
CHAPTER I Brokers Articles L131-1 to
L131-11
Article L131-1 There are commodities brokers, shipbrokers, and land and water transport brokers.
Article L131-3 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
Only land and water transport brokers constituted pursuant to the law are entitled, in the places in which they are established, to engage in land and water transport broking. They cannot combine their functions with those of the commodity brokers or shipping brokers designated in Article L. 131-1.
Article L131-5 Providers of investment services may, in conjunction with commodities brokers, negotiate and broker sales or
purchases of metals. They alone shall be entitled to fix the prices of these.
Article L131-11 If a broker is entrusted with a brokerage operation for a deal in which he has a personal interest and does not notify
this to the parties for whom he shall act as intermediary, this shall be punished by a fine of 25 000 F, without prejudice to the claim by the parties for damages. If he is registered in the list of brokers, drawn up in accordance with the regulations, he shall be removed from this and may not be registered in this again.
CHAPTER II Agents on commission Articles L132-1 to
L132-9
SECTION I Agents on commission in general Articles L132-1 to
L132-2
Article L132-1 Agents on commission are persons who act in their own name or under a company name on behalf of a principal. The duties and rights of agents on commission acting on behalf of a principal shall be determined by Title XIII of
Book III of the Civil Code.
Article L132-2 Agents on commission shall have a preferential right over the value of the commodities covered by their obligation
and over the documents relating thereto with regard to all commission claims against their principals, even those created during prior operations.
The preferential claim of the commission agent shall include, together with the principal amount, the interest, commission and additional expenses.
SECTION II Agents on commission for transport Articles L132-3 to
L132-9
Article L132-3 Agents on commission responsible for land or water transport shall be required to enter in their diary the declaration
of the nature and quantity of the commodities and, if this is required, their value.
Article L132-4 They shall act as guarantor for the arrival of the commodities and bills within the period specified by the bill of
lading, except in cases of legally recorded force majeure.
Article L132-5 They shall act as guarantor for the average or loss of commodities and bills unless there is a stipulation to the
contrary in the bill of lading or in a case of force majeure.
Article L132-6 They shall act as guarantor for the acts of the intermediate commission agent to whom they send the commodities.
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COMMERCIAL CODE Article L132-7
The commodities taken from the seller’s or consignor’s warehouse shall travel, unless otherwise agreed, at the risk of the person to whom they belong, except for the latter’s recourse against the commission agent and the carrier responsible for the transport.
Article L132-8 The bill of lading shall form a contract between the consignor, the carrier and the recipient or between the
consignor, the recipient, the commission agent and the carrier. Carriers shall therefore have a direct claim for payment of their services against the consignor and the recipient who shall act as guarantors for the payment of the transport cost. Any clause to the contrary shall be deemed to be unwritten.
Article L132-9 I.- The bill of lading must be dated. II.- It must specify: 1° The nature and weight or the capacity of the items to be transported; 2° The period within which the transport must be carried out. III.- It shall indicate: 1° The name and address of the commission agent through whom the transport is carried out, if there is one; 2° The name of the person to whom the commodities are being sent; 3° The name and domicile of the carrier. IV.- It shall set out: 1° The price of the carriage; 2° The compensation payable for late delivery. V.- It shall be signed by the consignor or the commission agent. VI.- It shall contain in the margin the makes and numbers of the items to be transported. VII.- The bill of lading shall immediately be copied by the commission agent into a numbered and initialled register
without any gaps.
CHAPTER III Carriers Articles L133-1 to
L133-7
Article L133-1 The carrier shall act as guarantor for the loss of the items to be transported, except in cases of force majeure. The carrier shall act as guarantor for the average other than that resulting from the inherent defect of the item or
from force majeure. Any clause to the contrary inserted in any bill of lading, price list or other document shall be invalid.
Article L133-2 If, due to the effect of the force majeure, the transport is not carried out within the agreed period, no compensation
may be claimed from the carrier for late delivery.
Article L133-3 The receipt of the transported items shall extinguish any claim against the carrier for average or partial loss if, within
three days of this receipt, not including public holidays, the recipient has not notified the carrier, by extra-judicial means or registered letter, of the reasoned protest.
If, within the period specified above, an expert report request is made pursuant to Article L.133-4, this request shall be valid as a protest without the notification specified in the first paragraph having to be carried out.
All stipulations to the contrary shall be null and void. This latter provision shall not apply to international transport.
Article L133-4 In the event of refusal of the items transported or presented in order to be transported, or of any dispute whatsoever
regarding the establishment or implementation of the shipping agreement or due to an incident occurring during and on the occasion of the transport, the state of the items transported or presented in order to be transported and, where necessary, their packaging, weight, nature, etc. shall be verified and recorded by one or more experts appointed by the president of the Tribunal de commerce or, failing this, by the president of the Tribunal de grande instance, through an Order made following a petition.
The petitioner shall be obliged, under their responsibility, to invite to this expert assessment, by an ordinary registered letter or by telegram, all parties liable to be involved in the case, in particular the consignor, recipient, carrier and commission agent. The experts must take an oath, without a hearing being required, before the judge who has appointed them or before the judge of the Tribunal de grande instance from which they originate. However, in urgent cases, the judge receiving the petition may dispense with fulfilling all or part of the formalities specified in this paragraph. This dispensation shall be specified in the Order.
The deposit or attachment of the items in dispute, and their subsequent transport to a public warehouse, may be ordered.
The sale of these items may be ordered up to the amount of the transport expenses or other expenses already incurred. The judge shall allot the product of the sale to those of the parties which advanced these expenses.
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COMMERCIAL CODE Article L133-5
The provisions contained in this chapter shall be common to both road and river carriers.
Article L133-6 Claims for average, loss or delay, to which the shipping agreement may give rise against the carrier, shall be
prescribed after one year, without prejudice to cases of fraud or inaccuracy. All other claims to which this agreement may give rise, against both the carrier or commission agent and the
consignor or recipient, and those which result from the provisions of Article 1269 of the New Code of Civil Procedure, shall be prescribed after one year.
The period of these prescriptions shall be calculated, in the event of total loss, from the day when the commodities should have been handed over and, in all other cases, from the day when the goods were handed over or offered to the recipient.
The period for bringing any action for a remedy shall be one month. This prescription shall run only from the day when the claim against the guarantor is made.
In the event of transport carried out on behalf of the State, the prescription shall start to run only from the day of notification of the ministerial decision specifying payment or final authorisation of payment.
Article L133-7 Carriers shall have a preferential right over the value of the commodities covered by their obligation and over the
documents relating thereto with regard to all transport claims, even those resulting from prior operations for which their principals, the consignors or the recipients remain in debt to them, insofar as the owner of the commodities over which the preferential right is exercised is involved in these operations.
The transport claims covered by the preferential right shall involve the transport expenses properly speaking, the supplementary remuneration payable for the additional services and tying-up of the vehicle during loading or unloading, the expenses incurred in the interest of the commodities, the customs duties, taxes, expenses and fines linked to a transport operation and the interest.
CHAPTER IV Commercial agents Articles L134-1 to
L134-17
Article L134-1 Commercial agents are agents who, as independent professionals not linked by contracts for services, shall be
permanently entrusted with negotiating and possibly concluding sale, purchase, rental or service provision contracts for and on behalf of producers, industrialists, traders or other commercial agents. Commercial agents may be natural or legal persons.
Agents whose representation tasks are carried out in the context of economic activities which are covered, with regard to these tasks, by special acts shall not come under the provisions of this chapter.
Article L134-2 Each party shall be entitled, at its request, to obtain from the other party a signed document indicating the contents
of the agency contract, including the contents of its riders.
Article L134-3 Commercial agents may agree, without needing authorisation, to represent new principals. However, they may not
agree to represent an undertaking competing with that of one of their principals without the latter’s agreement.
Article L134-4 The contracts concluded between commercial agents and their principals shall be in the common interest of the
parties. The relationships between commercial agents and principals shall be governed by an obligation of loyalty and a
reciprocal duty of information. Commercial agents must perform their mandate in a professional manner. Principals shall make sure that the
commercial agents are able to perform their mandate.
Article L134-5 Any element of the remuneration which varies according to the number or value of the deals concluded shall
constitute a commission within the meaning of this chapter. Articles L.134-6 to L.134-9 shall apply when the agents are remunerated in full or in part by the commission thus
defined. If the contract is silent on this, commercial agents shall be entitled to a remuneration in accordance with the usual
practice in the sector of activity covered by their mandate and in which they carry out their activity. In the absence of any usual practice, the commercial agent shall be entitled to a reasonable remuneration which takes account of all the elements involved in the operation.
Article L134-6 For any commercial transactions concluded during the term of the agency contract, commercial agents shall be
entitled to the commission defined in Article L.134-5 when these transactions have been concluded thanks to their intervention or when the transactions have been concluded with a third party whose custom they obtained previously for
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COMMERCIAL CODE transactions of the same kind.
When they are entrusted with a geographical sector or a specific group of persons, commercial agents shall also be entitled to the commission for any transaction concluded during the term of the agency contract with a person belonging to this sector or group.
Article L134-7 For any commercial transactions concluded after the agency contract ceases, commercial agents shall be entitled to
the commission when the transaction is mainly due to their activity during the agency contract and has been concluded within a reasonable period after the contract ceases or when, in accordance with the conditions specified in Article L.134-6, the order from the third party was received by the principal or by the commercial agent before the agency contract ceased.
Article L134-8 Commercial agents shall not be entitled to the commission specified in Article L.134-6 if this is due, pursuant to
Article L.134-7, to the previous commercial agent, unless the circumstances make it fair to share the commission between the commercial agents.
Article L134-9 The commission shall be acquired as soon as the principal has carried out the transaction or should have carried
this out under the agreement concluded with the third party or as soon as the third party has carried out the transaction. The commission shall be acquired at the latest when the third party has carried out its part of the transaction or
should have carried this out if the principal has carried out its own part. It shall be paid at the latest on the last day of the month following the quarter in which it was acquired.
Article L134-10 The right to the commission may be extinguished only if it is established that the contract between the third party
and the principal will not be performed and if this is not due to circumstances attributable to the principal. The commission which the commercial agent has already received shall be refunded if the right relating thereto is
extinguished.
Article L134-11 A term contract which continues to be performed by both parties after its term shall be deemed to have been
converted into an open contract. When the agency contract is an open contract, each party may end this by giving prior notice. The provisions of this
article shall apply to the term contract converted into an open contract. In this case, the calculation of the duration of the prior notice shall take account of the previous fixed term.
The period of prior notice shall be one month for the first year of the contract, two months for the second year started and three months for the third year started and for subsequent years. In the absence of agreement to the contrary, the end of the prior notice period shall coincide with the end of a calendar month.
The parties may not agree shorter periods of prior notice. If they agree longer periods, the prior notice period specified for the principal must not be shorter than that specified for the agent.
These provisions shall not apply when the contract ends due to serious negligence by one of the parties or the occurrence of a case of force majeure.
Article L134-12 If their relationship with their principal ceases, commercial agents shall be entitled to an indemnity for the loss
suffered. Commercial agents shall lose the right to this compensation if they have not notified the principal, within one year of
the cessation of the contract, that they intend to use their rights. The legal successors of commercial agents shall also benefit from the right to compensation when the cessation of
the contract is due to the death of the agent.
Article L134-13 The compensation specified in Article L.134-12 shall not be due in the following cases: 1° The cessation of the contract is caused by the serious negligence of the commercial agent. 2° The cessation of the contract is initiated by the agent unless this cessation is justified by circumstances
attributable to the principal or due to the age, infirmity or illness of the commercial agent, as a result of which the continuation of the latter’s activity can no longer be reasonably required;
3° In accordance with an agreement with the principal, the commercial agent cedes to a third party the rights and obligations held under the agency contract.
Article L134-14 The contract may contain a non-competition clause applying after its cessation. This clause must be established in writing and shall cover the geographical sector and, if applicable, the group of
persons entrusted to the commercial agent and the type of goods or services which the latter represents under the contract.
The non-competition clause shall be valid only for a maximum period of two years after a contract ceases.
Article L134-15
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COMMERCIAL CODE When the activity of commercial agent is carried out under a written contract, signed by the parties, which is
principally for another purpose, the parties may decide in writing that the provisions of this chapter do not apply to the part corresponding to the commercial agency activity.
This renunciation shall be invalid if the performance of the contract reveals that the commercial agency activity is actually being carried out as the principal or decisive element.
Article L134-16 Any clause or agreement contrary to the provisions of Articles L.134-2 and L.134-4, the third and fourth paragraphs
of Article L.134-11 and Article L.134-15 or establishing an exception, to the detriment of the commercial agent, to the provisions of the second paragraph of Article L.134-9, the first paragraph of Article L.134-10, Articles L.134-12 and L.134-13 and the third paragraph of Article L.134-14 shall be deemed to be unwritten.
Article L134-17 A Conseil d'Etat decree shall fix the conditions for applying this chapter.
TITLE IV The business Articles L141-1 to
L146-4
CHAPTER I Sale of the business Articles L141-1 to
L141-22
SECTION I Sale contract Articles L141-1 to
L141-4
Article L141-1 I.- In any instrument recording an assignment by private treaty of a business, agreed even in accordance with the
condition and in the form of another contract or a capital investment in a business, the seller shall be obliged to indicate: 1° The name of the previous seller, the date and nature of the instrument of acquisition from the latter and the price
of this acquisition for the fixed assets, goods and equipment; 2° The state of the preferential rights and charges affecting the business; 3° The turnover made by the seller during each of the last three years of operation or since the acquisition of the
business if the seller has operated this for less than three years; 4° The trading profits made during the same time; 5° The lease, its date and term and the name and address of the lessor and assignor, if applicable. II.- The omission of the information specified above may, at the request of the purchaser made within one year, lead
to the sale contract being declared void.
Article L141-3 The seller shall, notwithstanding any stipulation to the contrary, be bound by the guarantee relating to the
inaccuracy of the information provided thereby, in accordance with the conditions laid down by Articles 1644 and 1645 of the Civil Code.
Intermediaries, drafters of the contracts and their agents shall be jointly liable with the seller if they are aware of the inaccuracy of the information provided.
Article L141-4 The claim resulting from Article L.141-3 shall be brought by the purchaser within one year of the date when the
latter took possession of the business.
SECTION II Preferential right of the seller Articles L141-5 to
L141-22
Article L141-5 The preferential right of the seller of a business shall apply only if the sale has been recorded in a notarised
document or unattested document, which has been duly registered, and only if this has been entered in a public register held by the registry of the Tribunal de commerce in whose jurisdiction the business is operated.
This right shall cover only the elements of the business listed in the sale and in the entry in the register and, in the absence of precise specification, only the trade name and commercial name, the right to the lease, the customer base and the goodwill.
Separate prices shall be established for the fixed assets of the business, the equipment and the goods. The preferential right of the seller guaranteeing each of these prices, or those remaining due, shall be exercised
separately with regard to the respective prices of the resale for the goods, equipment and fixed assets of the business. Notwithstanding any agreement to the contrary, part payments other than down payments shall be allocated firstly
to the price of the goods and then to the price of the equipment. The resale price assigned shall be broken down if it applies to one or more elements not included in the initial sale.
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COMMERCIAL CODE Article L141-6
The entry in the register must be made, in order to be valid, within a fortnight of the date of the sale contract. It shall take preference over any entry in the register made in the same period by the purchaser. It shall be binding on the creditors of the purchaser subject to an administrative order or winding-up proceedings and on the latter’s estate accepted without liability to debts beyond the assets descended.
The action for rescission, established by Article 1654 of the Civil Code, shall, in order to be effective, be mentioned and expressly reserved in the entry in the register. This action may not be brought to the prejudice of third parties after the preferential right has lapsed. It shall be limited, like the preferential right, to solely the elements forming part of the sale.
Article L141-7 In the event of the court-ordered or amicable rescission of the sale, the seller shall be obliged to take back all the
elements of the business which formed part of the sale, even those for which the latter’s preferential right and the action for rescission have lapsed. The seller shall be responsible for the price of the goods and equipment existing at the time when the latter takes back possession, according to the estimate which shall be made of these by an expert in the presence of both parties, whether this is amicable or ordered by the court, subject to the deduction of what may still be due thereto, under the preferential right, with regard to the respective prices of the goods and equipment. The remainder, if any, shall be kept as the security for the registered creditors and, failing this, the unsecured creditors.
Article L141-8 The seller bringing the action for rescission shall notify this to the registered creditors of the business at the domicile
elected by them in their registrations. The judgment may be made only when a month has passed since this notification.
Article L141-9 The seller who has stipulated during the sale that, in the absence of payment within the agreed term, the sale shall
be rescinded ipso jure, or who has obtained an amicable rescission from the purchaser, must notify to the registered creditors, at the elected domiciles, the rescission incurred or granted which shall not become final until one month after this notification is made.
Article L141-10 When the sale of a business at public auction is applied for, either at the request of an court-appointed receiver or a
legal agent for the winding-up of undertakings or by court order at the request of any other legal successor, the applicant shall notify this to the previous sellers, at the domicile elected in their registrations, with a declaration that, if they fail to bring the action for rescission within one month of notification, they shall lose the right to bring this in favour of the successful bidder.
Article L141-11 (Act No. 2005-845 of 26 July 2005 Art. 1 I Official Journal of 27 July 2005 effective 1 January 2006)
Articles L. 624-11 to L. 624-18 do not apply to either the privilege or the action for rescission of the seller of a business.
Article L141-12 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
Without prejudice to the provisions relating to contributions of business assets provided for in Articles L. 141-21 and L. 141-22, details of any sale or transfer of business assets, even if subject to conditions or in the form of another contract, and likewise any transmission of business assets via partition or auction, must be published within two weeks of being effected, at the acquirer's behest, in a periodical authorised to carry official notices available in the district or department in which the business operates and, within two weeks of such publication, must appear in the Official Gazette of Civil and Commercial Announcements.
Article L141-13 The publication of the extract or notice carried out pursuant to the previous article shall, in order to be valid, be
preceded either by the registration of the contract containing the transfer or, in the absence of a contract, by the declaration specified by Articles 638 and 653 of the General Tax Code. This extract shall, subject to the same penalty, indicate the date, volume and number of the registration or, in the event of a simple declaration, the date and number of the receipt for this declaration and, in both cases, the indication of the office where these operations took place. It shall also set out the date of the contract, the surnames, forenames and domiciles of the former and new owners, the nature and headquarters of the business, the stipulated price, including the charges or the valuation used as the basis for paying the registration fees, the indication of the period below fixed for objections and an election of domicile in the jurisdiction of the court.
Article L141-14 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
Within ten days of the date of the second publication referred to in Article L. 141-12, any creditor of the previous owner, whether his debt is due or not, may lodge an appeal against the payment of the price at the elected domicile via a simple extrajudicial document. The appeal, if it is not to be declared null and void, must state the amount and cause of the debt and contain an election of domicile in the jurisdiction where the business is located. The lessor cannot lodge an appeal in respect of current rent or rent not yet due, notwithstanding any stipulations to the contrary. No amicable or judicial transfer in respect of the price or a portion of the price can be raised against creditors who have duly declared
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COMMERCIAL CODE their debts within the allotted timeframe.
Article L141-15 In the event of an objection to the payment of the price, the seller may, at any stage after the expiration of the
ten-day period, submit an urgent application to the president of the Tribunal de grande instance in order to obtain authorisation to receive the proceeds despite the objection, provided that the seller pays to the Consignments office, or to a third party appointed for this purpose, a sufficient sum, fixed by the judge ruling on the urgent application, in order to possibly meet the causes of the objection where the seller is recognised or judged to be in debt. The deposit thus ordered shall be specifically assigned, by the third-party holder, to guarantee the claims to secure which the objection has been made and to guarantee the exclusive preferential right which anyone else may have over this deposit without, however, a court-ordered transfer being able to result from this to the benefit of the objector or objectors in question with regard to other objecting creditors of the seller, if any. When the urgent order is enforced, the purchaser shall be discharged and the effects of the objection shall be assigned to the third-party holder.
The judge ruling on the urgent application shall grant the authorisation requested only if this is justified by a formal declaration from the purchaser involved in the case, made under the latter’s personal responsibility and formally noted thereby, that there are no objecting creditors other than those who have taken action against the purchaser. The purchaser, when the order is enforced, shall not be released from paying the price to other objecting creditors prior to said order, if any.
Article L141-16 If the objection has been made without title and cause or is invalid in its form and if there are no pending
proceedings at the outset, the seller may submit an urgent application to the president of the Tribunal de grande instance in order to obtain authorisation to receive the proceeds, despite the objection.
Article L141-17 The purchaser who pays the seller without having carried out the publications in the specified forms, or before the
expiration of the ten-day period, shall not be released with regard to third parties.
Article L141-18 If the sale or assignment of a business includes branches or establishments situated on French territory, the
registration and publication specified in Articles L.141-6 to L.141-17 shall also be carried out in a newspaper authorised to receive legal notices in the place of the registered office of these branches or establishments.
Article L141-19 (Act No. 2005-845 of 26 July 2005 Art. 161 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
During the twenty days following publication in the Official Bulletin of Civil and Commercial Notices referred to in Article L. 141-12, an authenticated copy or an original of the contract of sale shall be held at the elected domicile to facilitate easy consultation thereof by any objecting or registered creditor.
During that same period, any registered creditor or creditor who has lodged an objection within the ten-day period stipulated by Article L. 141-14 may inspect the contract of sale and the objections at the elected domicile and, if the price is not sufficient to pay off the registered creditors and those who have made themselves known through an objection, may, within ten days of the publication in the Official Bulletin of Civil and Commercial Notices referred to in Article L. 141-12, and pursuant to Articles L. 141-14 to L. 141-16, make a bid one sixth higher than the principal price asked for the business, excluding equipment and goods.
The one-sixth increase is not admissible after the court-ordered sale of a business or a sale effected at the request of a court-appointed receiver or court-appointed liquidator, or of joint co-owners of the fund, by way of public auction pursuant to Articles L. 143-6 and L. 143-7, or in accordance with Article L. 642-5.
The public officer instructed to proceed with the sale shall allow only those persons whose solvency is known to him, or who have deposited either with him or with the Caisse des dépôts et consignations, for specific allocation to payment of the price, a sum not lower than either half the total price of the first sale or the portion of the price of the said sale stipulated as being payable in cash, plus the amount of the higher bid.
The auction with the price increased by one sixth shall take place under the same conditions and within the same time limit as the sale in respect of which the higher bid was made.
If the buyer against whom the higher bid is made is dispossessed as a result thereof, he shall, under his own responsibility, deliver all the objections lodged to the successful bidder, against a receipt, within eight days of the sale, if he did not make them known earlier via a notation inserted in the articles and conditions. The effect of the said objections shall be applied to the sale price.
Article L141-20 When the sale price is finally fixed, whether or not there has been a higher bid, the purchaser, in the absence of an
agreement between the creditors for the amicable distribution of this price, shall be obliged, following formal notice from any creditor, and within the next fortnight, to deposit the due portion of the price, and the remainder where this may be due, to cover all the objections made thereto together with the registrations affecting the business and the assignments notified thereto.
Article L141-21 Except where this results from a merger or division operation subject to the provisions of the fourth paragraph of
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COMMERCIAL CODE Article L.236-2 and Articles L.236-7 to L.236-22, any contribution in the form of a business made to a company being formed or already in existence must be brought to the attention of the third parties in accordance with the conditions specified by Articles L.141-12 to L.141-18 by an advertisement in the legal notices newspapers and in the official gazette of civil and commercial notices.
However, if following the application of the acts and regulations in force on the publication of company documents, the information specified by these articles is already contained in the issue of the legal notices newspaper where the advertisements must be made, this may be carried out by simple reference to this publication.
In these advertisements, the election of domicile shall be replaced by the indication of the registry of the Tribunal de commerce where creditors of the contributor must declare their claims.
Article L141-22 Within ten days of the last in date of the publications specified in Articles L.141-12 and L.141-13, any unregistered
creditor of the contributing partner shall inform the registry of the Tribunal de commerce covering the business location of their capacity of creditor and the sum due thereto. The clerk shall issue thereto a receipt for this declaration.
If the partners or one of them fails to make, within the next fortnight, a request to cancel the company formation or contribution, or if the cancellation is not ordered, the company shall be obliged, jointly with the main debtor, to pay the liability declared and justified within the above period.
In the event of a contribution of a business by one company to another company, in particular following a merger or division, the provisions of the above paragraph shall not apply when Articles L.236-14, L.236-20 and L.236-21 should apply or when the option specified in Article L.236-22 is exercised.
CHAPTER II Charge on the business Articles L142-1 to
L142-5
Article L142-1 Charges may be taken on a business without conditions and formalities other than those specified by this chapter
and Chapter II below. Taking a charge on a business does not give a secured creditor the right to have the business arrogated in payment
up to the full amount due.
Article L142-2 The charge subject to the provisions of this chapter may cover the following items only as forming part of a
business: style and real estate management, leasing rights, clientele and custom, commercial furniture, equipment and tools used for the operation of the business, patents, licences, trademarks, industrial drawings and designs, and in general the intellectual property rights attached thereto.
A certificate of addition subsequent to the taking of a charge, which includes the patent to which it applies shall follow the fate of this patent and, as shall it, of the charge constituted.
Unless otherwise stated explicitly and precisely in the instrument creating it, the charge shall cover only the style and trademark, leasing rights, clientele and custom.
If the charge relates to a business and its branches, these must be designated by the precise indication of their registered address.
Article L142-3 The contract of charge shall be ascertained by a notarised document or by a duly registered unattested document. The preferential charge resulting from the contract of charge shall be constituted by the simple fact of entry in a
public register held at the registry of the Tribunal de commerce within the judicial area in which the business is operated. The same formality must be completed at the registry of the Tribunal de commerce within the judicial area in which
each of the branches of the business included in the charge is situated.
Article L142-4 (Act No. 2005-845 of 26 July 2005 Art. 1 I Official Journal of 27 July 2005 effective 1 January 2006)
Registration must take place, under pain of becoming null and void, within fifteen days of the date of the memorandum and articles of association.
In the event of court-ordered receivership or liquidation proceedings, Articles L632-1 to L632-4 shall apply to pledges of business assets.
Article L142-5 The ranking of secured creditors among themselves shall be determined by the date of their registrations. Creditors
registered on the same date shall rank equally.
CHAPTER III Provisions common to the sale and charge of the business Articles L143-1 to
L143-23
SECTION I Use of the security and redemption of registered claims Articles L143-1 to
L143-15
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COMMERCIAL CODE Article L143-1
In the event of assignment of the business, all registered charges shall become due ipso jure if the owner has failed to inform the secured creditors at least two weeks in advance of their intention to assign the business and the new registered office which they intend to give it.
Within two weeks of the notice given to them or within two weeks of the day on which they have learned of the assignment, all vendors and secured creditors must have the new headquarters of the business annotated in the margin of the existing entry in the register and, if the business has been transferred to another judicial area, have the original registration and its date carried over into the register of the court of this judicial area, indicating the new registered office.
If it causes a depreciation of the business, assignment of the business without the consent of the vendor or the secured creditors may render the debts owed to them due.
The registration of a charge may also cause earlier debts incurred for the purpose of operation of the business to become due.
Applications to the Tribunal de commerce for termination of the term made pursuant to the previous two subparagraphs shall be subject to the rules of procedure decreed in subparagraph four of Article L. 143-4.
Article L143-2 An owner seeking to cancel the lease on the building in which a business with charges registered against it
operates must notify previously registered creditors of its application at the domicile elected by them in their registry entries. The judgment may be given only after one month has passed since the notification.
An amicable termination of the lease may not become definitive until one month after the notification of it which has been given to secured creditors at the elected domiciles.
Article L143-3 Any creditor pursuing distraint proceedings and any debtor against whom or which they are brought may apply to
the Tribunal de commerce within the judicial area in which the business operates for the sale of the distrained business with its associated equipment and goods.
At the request of a plaintiff creditor, the Tribunal de commerce shall order that, in the absence of payment within the deadline allowed to the debtor, the sale of the business shall take place at the request of the said creditor after completion of the formalities specified in Article L. 143-6.
The same shall apply if, upon proceedings instigated by the debtor, the creditor applies to proceed with the sale of the business.
Should the creditor not request it, the Tribunal de commerce shall fix the deadline within which the sale of the business must take place at the request of the said creditor in accordance with the formalities specified in Article L. 143-6, and it shall order that, in the absence of the debtor having carried out the sale within the said deadline, the distraint proceedings shall be resumed and continued on the last steps.
Article L143-4 If required, the court shall appoint an interim manager of the business, fix the reserve prices, determine the primary
terms and conditions of the sale and appoint the public official who shall draw up the terms and conditions. When useful, special advertising shall be regulated by the judgment or, by default, by order of the presiding judge of
the Tribunal de commerce given on application. The latter may, by judgment given, authorise the plaintiff, if there is no other registered creditor or opposing party
and with the exception of preferential expenses for the benefit of the party or parties concerned, to receive the price directly and against a simple receipt either from the purchaser or from the public official mandated to conduct the sale as the case may be, in deduction from or up to the amount of their claim in principal, interest and expenses.
The Tribunal de commerce shall decree within two weeks of the first hearing by judgment not liable to stay of execution, enforceable at a moment’s notice. An appeal against the judgment shall be a stay. It shall be formed within two weeks of its service on the opposing party and judged by the court within one month. The order shall be enforceable at a moment’s notice.
Article L143-5 Vendors and secured creditors of the business may also, even by virtue of shares under an unattested document,
have an order given for the sale of the business constituting their charge one week after an official demand for payment made to the creditor and to a third-party holder, if applicable, has remained unprofitable.
The demand must be brought before the Tribunal de commerce within the judicial area of which the business is operated, which shall rule as stated in Article L. 143-4.
Article L143-6 The plaintiff shall serve notice on the owner and the creditors registered prior to the decision ordering the sale at the
domicile elected by them in their registrations at least two weeks before the sale to accept communication of the terms and conditions, to supply their statements and observations and to attend the sale by auction if they so desire.
The sale shall take place at least ten days after the affixing of notices indicating: the names, occupations and domiciles of the plaintiff and the owner of the business, the decision by virtue of which the proceedings are instigated, an election of domicile within the area in which the Tribunal de commerce within the judicial area of which the business is operated, the various element constituting the said business, the nature of its activities, its location, the reserve prices, the place, date and time of the sale by auction, the name and domicile of the public official mandated to conduct the sale and custodian of the terms and conditions.
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COMMERCIAL CODE These notices must mandatorily be affixed, at the instigation of the public official, to the main door of the building
and of the town hall of the municipality in which the business is located, the Tribunal de commerce within the judicial area of which the business is located and on the door of the office of the public official mandated to conduct the sale.
The notice shall be inserted ten days prior to the sale in a newspaper authorised to receive legal advertisements and in the administrative district or Department in which the business is located.
Publication shall be ascertained by a statement included in the record of forced sale.
Article L143-7 If required, the presiding judge of the Tribunal de grande instance within the judicial area of which the business is
operated shall rule on the grounds for nullity of the sale procedure prior to adjudication and on the expenses within the judicial area of which the business is operated. Objections to these grounds must be made at least one week prior to the sale in order to be valid. Subparagraph four of Article L. 143-4 shall apply to the order made by the presiding judge.
Article L143-8 If the Tribunal de commerce before which a petition is brought for payment of a debt attached to the operation of a
business gives judgment against the defendant and if the creditor so requests, it may order the sale of the business by the same judgement. It shall order within the terms of subparagraphs one and two of Article L. 143-4 and shall fix the deadline after which the sale may be proceeded with if payment is not made.
The provisions of subparagraph four of Article L. 143-4 and Articles L. 143-6 and L. L43-7 shall apply to the sale as ordered by the Tribunal de commerce.
Article L143-9 Should the purchaser fail to execute the clauses of the sale, the business shall be sold by auction without reserve in
accordance with the forms specified by Articles L. 143-6 and L. 143-7. The irresponsible bidder shall be liable to the creditors of the vendor and the vendor himself, herself or itself, for the
difference between their price and that of the resale by auction without reserve, although not being entitled to lay claim to any surplus that may arise.
Article L143-10 The separate sale of one or more components of a business with charges registered against it, whether by distress
or by virtue of the provisions of this chapter, may not be carried out until ten days at the earliest after notification of the proceedings to those creditors who or which have registered at least two weeks prior to the notification, at the domicile they elected in their registrations. During this period of ten days, any registered creditor, irrespective of whether their claim has fallen due, may serve a writ on the interested parties before the Tribunal de commerce within the judicial area of which the business is operated, applying for all the components of the business to be sold at the request of the plaintiff or their own request, within the terms and conditions and in accordance with the provisions of Articles L. 143-3 to L. 143-7.
The equipment and goods shall be sold at the same time as the business at separate reserve prices or subject to separate prices if the terms and conditions obliges the adjudicator to take them according to experts’ statements.
A price breakdown must be given for those components of the business against which no preferential charges are registered.
Article L143-11 No higher bid will be allowed when the sale has taken place in accordance with the terms and conditions specified
in Articles L. 141-19, L. 143-3 to L. 143-8, L. 143-10 and L. 143-13 to L. 143-15.
Article L143-12 The preferential rights of the vendor and a registered creditor shall follow the business in whichever hands it may
pass. If the sale of the business has not been carried out by public auctions in accordance with the Articles specified in
Article L. 143-11, a purchaser wishing to protect him, her or itself against proceedings by secured creditors must serve notifications to all the secured creditors, before the proceedings or within two weeks in order to be valid, in accordance with the terms and conditions specified by decree.
Article L143-13 Where Article L. 143-11 does not apply, any creditor with a registered charge on the business may demand its sale
by public auction by offering to bid up the principal price, exclusive of the equipment and goods, by one tenth, and to give a guarantee for the payment of the prices and expenses or to give proof of sufficient creditworthiness.
In order to be valid, this demand, signed by the creditor, must be served upon the purchaser and the prior owner debtor within two weeks of the notifications, with service before the Tribunal de commerce of the business location of a plea for an order, in the event of dispute, on the validity of the higher bid, on the admissibility of the guarantee or creditworthiness of the higher bidder, and for an order that the business, with its associated equipment and goods, should be sold by public auction, and that the outbid purchaser should be obliged to communicate their title and the lease document or lease assignment document to the public official mandated to conduct the sale. The aforementioned deadline of two weeks may not be extended because of the distance between the elected domicile and the real domicile of secured creditors.
Article L143-14 With effect from notification of the higher bid, a purchaser having taken possession of the business shall be no
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COMMERCIAL CODE longer be entitled to administer and may no longer undertake any acts of administration. However, at any time during the proceedings they may apply to the Tribunal de commerce or to a judge sitting in chambers, according to the case, for the appointment of another administrator. This application may also be made by any creditor.
The higher bidder may not prevent the sale by public auction by waiver, even by paying the amount of the tender, other than by consent of all the secured creditors.
The formalities of the procedure and of the sale shall be carried out at the instigation of the higher bidder and, in the absence thereof, any registered creditor or the purchaser, at the cost and risk of the higher bidder and their guarantee remaining committed, in accordance with the rules specified in Articles L. 143-4, L. 143-5 to L. 143-7 and in subparagraph three of Article L. 143-10.
In the absence of auction, the higher bidder creditor shall be declared the purchaser.
Article L143-15 The purchaser shall be obliged to take the equipment and goods existing at the time of taking possession at the
prices fixed by an amicable or court-ordered counter-appraisal between the outbid purchaser, their vendor and the purchaser.
In addition to their purchase price, they shall be obliged to reimburse to the dispossessed purchaser the expenses and genuine expenses of their contract, of notifications, of registration and of publication specified in Articles L. 141-6 to L. 141-18 and, to whom it may concern, of accomplishing the resale.
Article L. 143-9 shall apply to the sale and to the sale by higher bid. An outbid purchaser who becomes the purchaser by means of the resale by higher bid shall have recourse as
provided by law against the vendor for the reimbursement of the amount in excess of the price specified by their title and for interest on this excess amount with effect from the date of each payment.
SECTION II Registration and removal of the registration formalities Articles L143-16 to
L143-20
Article L143-16 The registration and removal of the registration of a vendor’s or creditor’s preferential rights are subject to
formalities whose terms and conditions are fixed by Conseil d'Etat decree.
Article L143-17 In addition to the registration formalities specified in Article L. 143-16, sales and assignments of businesses
including trademarks and trademarks, industrial drawings or designs, charges on businesses which include patents or licences, brands or drawings or designs, must be registered with the National Industrial Rights Institute, on production of the certificate of registration issued by the clerk of the Tribunal de commerce, within two weeks following this registration in order to be valid with respect to third parties, sales, assignments and charges as they apply to patents and licences, trademarks and trademarks, and industrial drawings and designs.
The assignment of patents included in the assignment of a business shall remain subject to the rules decreed in Articles L. 613-8 onwards of the intellectual property code.
Article L143-18 If the title resulting from the registered preferential right is negotiable, negotiation by endorsement shall imply the
assignment of the preferential right.
Article L143-19 Registration shall preserve the preferential right for ten years with effect from its date. It shall cease to have effect if
it has not been renewed before expiration of this period. It guarantees two years of interest at the same ranking as the principal amount.
Article L143-20 (Law No 2003-721 of 1 August 2003 Article 3 Official Gazette of 5 August 2003)
Registrations are deleted either with the consent of the duly entitled interested parties or by virtue of a res judicata judgment.
Without a judgment, total or partial deletion cannot be effected by the registrar unless a duly registered notarially recorded or private instrument is lodged with the court through which the debtor or his properly subrogated transferee consents to the deletion and substantiates his rights.
Total or partial deletion of the registration made at the National Industrial Property Institute is effected upon production of the certificate of deletion issued by the registrar of the commercial court.
SECTION III Intermediaries and distribution of the price Articles L143-21 to
L143-23
Article L143-21 Any third party holder of the purchase price for the business with whom domicile has been elected must transfer it
within three months of the date of the deed of sale. On expiration of this deadline, the first to act may appeal to a judge sitting in chambers at the competent court of the
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COMMERCIAL CODE place of election of domicile, which shall order either deposit with the Deposit and Consignment Office or the appointment of a trustee charged with the distribution of the proceeds of the sale of the business.
Article L143-22 If the confiscation of a business is ordered by a criminal jurisdiction in application of Articles 225-16, 225-19 and
225-22 of the penal code and 706-39 of the penal proceedings code, the State must offer the confiscated business for sale in accordance with the terms and conditions specified by this title within a deadline of one year in the absence of an exceptional extension of this deadline by order of the presiding judge of the Tribunal de grande instance. Liability with respect to the creditors shall be limited to the sale price of this business.
This offer for sale must be carried out in the form of a legal advertisement made at least forty-five days prior to the sale, whether this is to take place by auction or in the form of a private sale.
Guarantees registered after the date of the statement of instigation of proceedings for any of the offences referred to in subparagraph one shall ipso jure be null and void in the absence of a court order to the contrary.
The administrative authority may, at any time, demand the determination of the rent at a rate corresponding to the rental value of the premises.
If the owner of the confiscated business is simultaneously the owner of the premises in which the business is operated, a lease must be drawn up, the terms and conditions of which shall be determined, in the absence of amicable agreement, by the presiding judge of the Tribunal de grande instance, who will rule within the terms and conditions specified for leases of immovable properties or for premises used for commercial, industrial or craft purposes.
Article L143-23 A Conseil d'Etat decree shall determine the executory measures for Chapters I and II above and this chapter, in
particular the fees to be allocated to the clerks of tribunaux de commerce, the terms and conditions under which registrations, cancellations and the issuing of statements and negative certificates concerning sales, assignments and charges relating to the business which include patents and licences, trademarks and trademarks, industrial drawings and industrial designs are carried out at the National Industrial Rights Institute.
It shall also determine the duties to be collected by the Conservatoire des Arts et Métiers (Museum and college of higher technology for training students in the application of science to industry) for the service of the National Industrial Rights Institute on registrations and statements of priority, subrogation and cancellation, statements of registration and certificates that none exist.
CHAPTER IV Real estate management Articles L144-1 to
L144-13
Article L144-1 Notwithstanding any clause to the contrary, any contract or agreement under the terms of which the owner or
operator of a business or a craft establishment grants the lease thereof totally or partially to a manager who operates it at their own risk shall be regulated by the provisions of this chapter.
Article L144-2 The tenant manager shall be classified as a merchant. They shall be subject to all the obligations which arise
therefrom. If the business is a craft establishment, the tenant manager shall be registered in the craft directory and shall be
subject to all the obligations which arise therefrom..
Article L144-3 (Order No. 2004-274 of 25 March 2004 Art. 10 I Official Journal of 27 March 2004)
Natural persons or legal entities who/which grant leasing-management rights must have operated the business or handicraft establishment placed under leasing-management for at least two years.
Article L144-4 The period stated in Article L. 144-3 may be done away with or reduced by order of the presiding judge of the
Tribunal de grande instance given on ordinary application by the interested party, after having consulted the public ministry, in particular when the interested party can prove that they are unable to operate their business personally or through the intermediary of agents.
Article L144-5 (Order No. 2004-274 of 25 March 2004 Art. 10 II Official Journal of 27 March 2004)
Article L. 144-3 shall not apply to: 1. The State; 2. The territorial authorities; 3. Credit institutions; 4. Persons of full age subject to a legal protection measure or persons hospitalised on account of mental illness as
provided for in Articles L. 3211-2 and L. 3212-1 to L. 3212-12 of the Public Health Code, in relation to the business which they owned prior to the entry into force of the legal protection measure or the commencement of hospitalisation;
5. The heirs or legatees of a deceased trader or craftsperson, and likewise the beneficiaries of a division between relatives in direct ascending line, in connection with the business thus transmitted;
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COMMERCIAL CODE 6. The public institution created by Article L. 325-1 of the Planning Code; 7. A spouse who is the recipient of a business or a handicraft establishment following the dissolution of a marriage,
when the said spouse has participated in its exploitation for at least two years prior to the dissolution of the marriage contract or the division;
8. The lessor of a business, when the main object of the leasing-management is to achieve retail sales of the products made or distributed by the business under an exclusive contract;
9. The lessors of cinema, theatre and music hall businesses.
Article L144-6 At the date of the real estate management, the debts owed by the lessor of the business relating to the operation of
the business may be declared due immediately by the Tribunal de commerce where the business is located, if it considers that the real estate management endangers their recovery.
In order not to be out of time, the proceedings must be started within a deadline of three months from the date of publication of the management contract in a newspaper authorised to receive legal advertisements.
Article L144-7 Until publication of the real estate management contract and for a period of six months with effect from this
publication, the lessor of the business shall be jointly liable with the tenant manager for debts entered into by the latter during the operation of the business.
Article L144-8 The provisions of Articles L. 144-3, L. 144-4 and L. 144-7 shall not apply to real estate management contracts
entered into by court-appointed agents charged in any capacity whatsoever with the administration of a business, on condition that they have been authorised for the purposes of the said contracts by the authority having given them their mandate and that they have complied with the specified publication measures.
Article L144-9 Termination of the real estate management shall render immediately due all debts relating to the operation of the
business or the craft establishment entered into by the tenant manager during the period of management.
Article L144-10 Any real estate management contract and any other agreement containing similar clauses granted by the owner or
the operator of a business which does not comply with the conditions specified in the articles above shall be null and void. However, the contracting parties may not invoke this nullity against third parties.
The nullity specified in the preceding subparagraph shall lead to forfeiture of the contracting parties rights which they could potentially have held from the provisions of Chapter V of this title regulating relations between lessors and lessees with respect to the renewal of building leases or of premises used for commercial, industrial or craft purposes.
Article L444-11 If the real estate management contract includes an escalator clause, a rent revision may be requested,
notwithstanding any agreement to the contrary, whenever the rent calculated in accordance with this clause is increased or reduced by more than one quarter in comparison with the price previously determined contractually or by court order.
Should one of the factors used for the calculation of the escalator clause disappear, the revision may be requested and carried out only if the economic conditions are changed to the point of causing a variation of more than one quarter of the rental value of the business.
Article L 144-12 The party wishing to request the revision must notify the other party of this by registered letter with confirmation of
delivery or by extra-judicial means. In the absence of amicable agreement, proceedings shall be instigated and judged in accordance with the
provisions laid down for matters of the revision of prices of leases of immovable properties or for premises used for commercial or industrial purposes.
The judge must, while taking into consideration all the relevant factors, adjust the scope of the escalator clause to the fair rental value on the date of notification. The new price shall apply with effect from this same unless the parties have agreed upon an earlier or more recent date before or during the proceedings.
Article L144-13 The provisions of Articles L. 144-11 and L. 144-12 shall not apply to leasing transactions with regard to businesses
or craft establishments mentioned in 3. of Article one of Act No 66455 of 2 July 1966 relating to undertakings carrying out leasing.
The provisions of Article L. 144-9 shall not apply if the tenant manager having leased a business or a craft establishment by means of a leasing contract exercises the purchase option.
CHAPTER V Commercial lease Articles L145-1 to
L145-60
SECTION I
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COMMERCIAL CODE Scope Articles L145-1 to
L145-3
Article L145-1
I.- The provisions of this chapter shall apply to leases of immovable properties or for premises in which the business is operated irrespective of whether this business is owned by a merchant or a manufacturer registered in the commercial and companies register or to a head of an undertaking registered in the craft directory, whether trading or not, and also:
1. To leases for premises or immovable properties accessory to the operation of a business when their loss would be likely to compromise the operation of the business and they belong to the owner of the premises or the real property where the principal place of business is located. Should there be more than one owner, the associated premises must have been leased to the certain knowledge of the lessor with a view to shared use
2. To leases of undeveloped land on which buildings for commercial, industrial or craft use are erected, either before or after the lease, on condition that these buildings have been erected or operated with the explicit consent of the owner.
II. – If the business is operated under the form of a real estate management in application of Chapter IV of this title, the owners of the business shall nevertheless benefit from these provisions without having to prove registration in the commercial and companies register or in the craft directory.
Article L145-3 The provisions of this chapter shall not apply to long leases with the exception of matters relating to rent revision.
However, they shall apply in the cases specified in Articles L. 145-1 and L. 145-2 to leases entered into by long leaseholders, subject to the period of renewal granted to their subtenants not having the effect of extending occupation of the premises beyond the expiration date of the long lease.
SECTION II Term Articles L145-4 to
L145-7
Article L145-4 The term of the lease contract may not be less than nine years. However, in the absence of agreement to the contrary, the lessee shall have the option of giving notice on
expiration of a term of three years in the forms and deadline of Article L. 145-9. The lessor shall have the same option if they intend to invoke the provisions of Articles L. 145-18, L. 145-21 and L.
145-24 in order to build, rebuild, raise the height of the existing real property or to carry out the works prescribed or authorised within the framework of an real property restoration operation.
A lessee having made a request to take advantage of their rights to retirement from the social security system to which they subscribe or having been accepted as a beneficiary of an invalidity pension allocated within the framework of the social security system shall have the option of giving notice in the forms and deadline of Article L. 145-9.
The provisions of the preceding subparagraph shall apply to the sole member of a one-man limited liability company or a majority shareholder manager of at least two years’ tenure of a limited liability company when they are the leaseholder.
Article L145-5 When the lessee enters the premises, the parties may depart from the provisions of this chapter on condition that
the lease is agreed for a term of no more than two years. If the lessee remains and is allowed to remain in possession on expiration of this term, a new lease shall be formed,
the effect of which shall be regulated by the provisions of this chapter. The same shall apply in the event of explicit renewal of the lease or of agreement between the same parties of a
new lease for the same premises. The provisions of the two preceding subparagraphs shall not apply if the lease is of a seasonal nature.
Article L145-6 During the course of the original lease or a renewed lease, the lessor of premises used for commercial, industrial or
craft purposes may retake possession of the premises in whole or in part to carry out works requiring the evacuation of the premises included within a sector or perimeter specified in Articles L. 313-3 and L. 313-4 of the town planning code and authorised or prescribed within the conditions specified in the said articles, on condition of offering to transfer the lease to equivalent premises within the same real property or within another real property. This offer must specify the characteristics of the premises offered, which must enable continuation of the exercise of the tenant’s previous activity. The offer must be notified one year in advance.
Within a deadline of two months, the tenant must either communicate their acceptance or refer the reasons for their refusal to the competent court, in the absence of which they shall be deemed to have accepted the offer.
Article L145-7 A tenant whose lease is assigned shall be entitled to a dipossession compensation which includes compensation for
the prejudicial consequences of temporary loss of enjoyment taking into account, if applicable, of the provisional installation carried out at the lessor’s expense and reimbursement of their normal expenses of removal and
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COMMERCIAL CODE reinstallation.
Once the offer has been accepted or acknowledged as being valid by the competent court and after expiration of the deadline of one year with effect from confirmation of the offer, the tenant must leave the premises with effect from the premises offered being made effectively available and payment of provisional compensation of an amount determined within the forms specified in Article L. 145-19.
The price and accessory terms and conditions of the lease may be amended at the request of the first to act.
SECTION III Renewal Articles L145-8 to
L145-13
Article L145-8 The right to renewal of a lease may be invoked only by the owner of the business operated in the premises. In the absence of legitimate reasons, the converted business must, if appropriate, in the conditions specified in
section 8 of this chapter, have been operated effectively during the three years prior to the date of expiration of the lease or of its renewal as specified in Article L. 145-9, this latter date being either the date for which the notice has been given or, if a request for renewal has been made, the customary term following this request.
Article L145-9 Notwithstanding Articles 1736 and 1737 of the civil code, leases for premises subject to the provisions of this
chapter shall end only by virtue of a notice given in accordance with custom and practice in respect of premises and at least six months in advance.
In the absence of notice, a written lease shall continue by tacit renewal beyond the term stated in the contract, in conformity with Article 1738 of the civil code and subject to the reserves specified by the preceding subparagraph. Beyond the term of nine years, a lease with a period conditional upon an event, the occurrence of which will authorise the lessor to demand its cancellation shall terminate only by virtue of notice given six months in advance and for a customary term. This notice must state the occurrence of the event specified in the contract.
If the lease is for several terms and the lessor terminates the lease at the end of the first nine years or on expiration of one of the subsequent terms, the notice must be given within the deadline stated in subparagraph one above.
The notice must be given by extra-judicial means. In order to be valid, it must state the reasons for which it is given and state that a lessee wishing either to dispute the notice or demand payment of compensation for eviction must refer the matter to the court within a deadline of two years with effect from the date for which the notice has been given in order not to be out of time.
Article L145-10 In the absence of notice, a tenant wishing to renew their lease must request this either within the six months prior to
expiration of the lease or, if appropriate, at any time during its renewal. The request for renewal must be served on the lessor by extra-judicial means. In the absence of conditions or
notifications to the contrary on the part of this latter, it may be addressed equally validly ether to the lessor or to the manager, who shall be deemed to be authorised to receive it. Should there be more than one owner, a request addressed to one of them shall be valid in respect of them all in the absence of conditions or notifications to the contrary.
In order to be valid, it must reproduce the terms of the subparagraph below. Within three months of service of the request for renewal, the lessor must inform the lessee, within the same forms,
if they refuse the renewal, stating the reasons for this refusal. Should the lessor fail to communicate their intentions within this deadline, the lessor shall be deemed to have accepted the principle of renewal of the previous lease.
In order to be valid, the extra-judicial means giving notice of refusal to renew the lease must state that a lessee wishing either to dispute the refusal to renew the lease or demand payment of compensation for eviction must refer the matter to the court before expiration of a deadline of two years with effect from the date on which notice of the refusal to renew was served.
Article L145-11 A lessor wishing, while not being opposed to the principle of renewal, to obtain an amendment of the price of the
lease must give notice of the rent they propose within the period of notice specified in Article L. 145-9 or in the reply to the request for renewal specified in Article L. 145-10, in the absence of which the new price shall be due only with effect from a demand made subsequently in accordance with the terms and conditions defined by Conseil d'Etat decree.
Article L145-12 The term of the renewed lease shall be nine years in the absence of agreement between the parties on a longer
term. The provisions of subparagraphs two and three of Article L. 145-4 shall apply during the term of the renewed lease.
The new lease shall take effect from expiration of the preceding lease or, if appropriate, from its renewal, this latter date being either that for which the notice had been given or, if a request for renewal has been made, the customary term which follows this request.
However, if the lessor has communicated, either by giving a period of notice or by refusal of renewal, their intention not to renew the lease and if, subsequently, they decide to renew it, the new lease shall take effect from the date on which this acceptance has been communicated to the lessee by extra-judicial means.
Article L145-13
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COMMERCIAL CODE Subject to the provisions of the Act of 28 May 1943 relating to the application to foreigners of the laws on rental
leases and farm leases, the provisions of this section may be invoked by merchants, manufacturers and persons registered in the crafts directory of foreign nationality, acting directly or via an intermediary only if they have fought in the French or Allied armies during the 1914 and 1939 wars or if they have children holding French nationality.
The preceding subparagraph shall not apply to citizens of Member States of the European Community or of Member States of the European Economic Area.
SECTION IV Refusal of renewal Articles L145-14 to
L145-30
Article L145-14 A lessor may refuse the renewal of a lease. However, except in cases of the exceptions specified in Articles L.
145-17 onwards, the lessor must pay the evicted tenant compensation for eviction equal to the prejudice caused by the absence of renewal.
This compensation shall include in particular the market value of the business, determined in accordance with custom and practice of the profession, potentially increased by the normal expenses of removal and reinstallation, plus the expenses and duties of assignment of a business of the same value, except in the event of the owner providing proof that the prejudice is lower.
Article L145-15 Irrespective of their form, clauses, conditions and arrangements which have the effect of frustrating the right of
renewal laid down by this chapter or the provisions of Articles L. 145-4, L. 145-37 and L. 145-41, subparagraph one of Article L. 145-42 and Articles L. 14547 to L. 145-54 shall be null and void.
Article L145-16 Irrespective of their form, agreements whose object is to prohibit the tenant from assigning their lease or the rights
held by virtue of this chapter to a purchaser of their business or undertaking shall also be null and void, In the event of the merger of companies or the contribution of part of the assets of a company carried out within the
conditions specified in Article L. 236-22, the company resulting from the merger or the company receiving the contribution shall, notwithstanding any condition to the contrary, replace the party in whose favour the lease was granted in respect of all rights and obligations resulting from this lease.
If the guaranty obligation can no longer be maintained within the terms and conditions of the agreement in the event of assignment, merger or contribution, the court may substitute any guaranties it may deem sufficient.
Article L145-17 I. – A lessor may refuse the renewal of a lease without being obliged to pay any compensation if: 1. They can provide proof of a serious and legitimate reason against the tenant whose lease is ending. However,
should this involve either failure to perform an obligation or cessation of operation of a business ion the absence of genuine and legitimate reason, taking into account the provisions of Article L. 145-8, the breach committed by the lessee may be invoked only if has been continued or renewed more than one month after the lessor has given formal notice to cause it to cease. In order to be valid, this formal notice must be served by extra-judicial means, stating the reason invoked and reproducing the terms of this subparagraph;
2. If proof is provided that the building must be totally or partially demolished due to being acknowledged by the administrative authority as in an unfit condition for occupation or if proof is provided that the it may no longer be occupied without danger due to its condition.
II. - In the event of rebuilding of a new building containing commercial premises by the owner or their beneficiary, the tenant shall have a preferential right to enter into a lease in the rebuilt building, subject to the terms and conditions specified in Articles L. 145-19 and L. 145-20.
Article L145-18 A lessor shall be entitled to refuse the renewal of a lease in order to build or rebuild the existing building, subject to
payment to the ejected tenant of the compensation specified in Article L. 145-14. The same shall apply for the carrying out of works requiring the evacuation of the premises included within a sector
or perimeter specified in Articles L. 313-3 and L. 313-4 of the town planning code and authorised or prescribed within the conditions specified in the said articles.
However, the lessor may avoid payment of this compensation by offering the ejected tenant premises corresponding to their needs and means located in an equivalent site.
If applicable, the tenant shall receive compensation for their temporary loss of enjoyment and for the depreciation of their business. The tenant’s normal removal and installation expenses shall also be reimbursed.
Should a lessor invoke the benefit of this article, they must refer to the provisions of subparagraph 3 and specify the new terms and conditions of rental in the document refusing to renew the lease or the notice. Within a deadline of three months, The tenant must either communicate their acceptance by extra-judicial means or refer the matter to the competent court within the conditions specified in Article L. 145-58.
Should the parties disagree only in respect of the terms and conditions of the new lease, these shall be determined in accordance with the procedure specified in Article L. 145-56.
Article L145-19
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COMMERCIAL CODE In order to exercise the preferential right specified in Article L. 145-17, on leaving the premises or no later than three
months of so doing, a tenant must give notice to the owner of their desire so to do by extra-judicial means, informing the owner of their new domicile; in order to be valid, the tenant must also give notice of any subsequent change of domicile.
Prior to letting or occupying the new premises themselves, an owner having received such notice must advise the tenant in the same way that they are prepared to grant them a new lease. In the absence of agreement between the parties on the terms and conditions of this lease, these shall be determined in accordance with the procedure specified in Article L. 145-56.
The tenant shall have a deadline of three months in which to confirm their decision or to refer the matter to the competent court. In order to be valid, this deadline must be stated in the notice referred to in the preceding subparagraph. On expiration of this deadline, the owner may dispose of the premises.
An owner failing to comply with the provisions of the preceding subparagraphs shall be liable, on demand by their tenant, to pay damages to this latter.
Article L145-20 Should the building rebuilt within the conditions specified in Article L. 145-17 have a surface area greater than that
of the original building, the preferential right shall be limited to those premises with a surface area equivalent to that of the premises previously occupied or likely to satisfy the same commercial needs as these latters.
Should the rebuilt building not permit the reinstallation of all the occupants, preference shall be given to those tenants holding the oldest leases and having communicated their intention to occupy the premises.
Article L145-2l An owner may also defer renewal of the lease for a period of up to three years if they intend to raise the height of
the building and if this raising necessitates the temporary eviction of the tenant. In such an event, the tenant shall be entitled to compensation equal to the prejudice suffered up to a maximum of three years’ rent.
Article L145-22 An owner shall be entitled to refuse the renewal of a lease exclusively in respect of the part involving the living
accommodation associated with commercial premises in order to occupy them themselves or to enable their spouse, members of their family of ascending or descending order, or those of their spouse to occupy them, subject to the beneficiary of the takeover not having access to accommodation corresponding to their normal needs and those of the members of their family normally living or domiciled with them.
However, a takeover in the conditions stated above may not be exercised on premises used for hotel purposes or for furnished rentals, nor on premises used for hospital or teaching purposes.
Similarly, a takeover may not be exercised if the tenant provides proof that the loss of enjoyment of the living accommodation causes a serious difficulty to the operation of the business or if the commercial premises and the living accommodation form an indivisible whole.
Should the building have been bought for money consideration, the lessor may benefit from the provisions of this article only if their deed of purchase has a legal date more than six years prior to the refusal of renewal.
The beneficiary of the takeover right shall be liable to place the accommodation which may be left vacant by the exercise of this right, if any, at the disposal of the tenant whose premises they take over.
In the event of partial takeover as specified in this article, the rent for the renewed lease shall take into account the prejudice caused to the tenant or to their beneficiary in the exercise of their activity.
Unless prevented by a legitimate reason, the beneficiary of the takeover must occupy the premises personally within a deadline of six months with effect from the date of departure of the evicted tenant and for a term of no less than six years, in the absence of which the evicted tenant shall be entitled to compensation for eviction in proportion to the size of the premises taken over.
Article L145-23 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The provisions of Article L. 145-22 do not apply to lessors of foreign nationality, whether they act directly or through an intermediary, unless they fought in the French or allied forces during the wars of 1914 and 1939 or have children with French nationality.
The previous paragraph does not apply to citizens of a Member State of the European Community or of a State which is a party to the Agreement on the European Economic Area.
Article L145-24 The right to renewal shall not be demurrable against an owner having obtained a building permit for living
accommodation on all or part of one of the plots of land referred to in Article L. 145-1 (2). Irrespective of the circumstances, this right of takeover may be exercised only in respect of the part of the land
essential for the building. Should its effect be to cause the mandatory cessation of the commercial, industrial or craft operation, the provisions of Article L. 145-18 shall apply.
Article L145-25 An owner or principal tenant being simultaneously the lessor of the premises and the vendor of the business
operated there and having received total price may refuse the renewal only on condition of payment of the compensation for eviction specified in Article L. 145-14, unless able to provide proof of an acknowledged serious and legitimate reason against the lessee.
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COMMERCIAL CODE Article L145-26
The renewal of leases concerning immovable properties owned by the State, departments, municipalities and public establishments may not be refused without the joint ownership being obliged to pay the compensation for eviction specified Article L. 145-14, even if its refusal is justified for public purposes.
Article L145-27 Should it be proved that a lessor has exercised the rights conferred upon them by Articles L. 145-17 onwards purely
with a view to fraudulently frustrating the rights of a tenant, in particular through letting and resale transactions, irrespective of whether these transactions are of a civil or commercial nature, the tenant shall be entitled to compensation equal to the amount of the prejudice suffered.
Article L145-28 No tenant entitled to claim compensation for eviction may be forced to vacate the premises before having received
it. They shall be entitled to remain in the premises under the terms of the expired lease contract until payment of this compensation. However, the occupation compensation shall be determined in accordance with the provisions of sections 6 and 7, taking into consideration all the relevant factors.
By derogation from the preceding subparagraph, in the single case specified in subparagraph two of Article L. 145-18, the tenant shall be obliged to vacate the premises upon payment of provisional compensation determined by the presiding judge of the Tribunal de grande instance ruling in the light of an expert assessment previously ordered within the forms determined by Conseil d'Etat decree in application of Article L. 145-56.
Article L145-29 In the event of eviction, the premises must be handed back to the lessor in time for the first day of the term of
occupation following the expiration of the deadline of two weeks with effect from payment of the compensation into the hands of the tenant themselves or, potentially, of a receiver. In the absence of agreement between the parties, the receiver shall be appointed by the judgment ordering payment of the compensation or, by default, by ordinary order on application.
The receiver shall pay the compensation to the tenant against their sole receipt if there are no objections on the part of creditors and in exchange for the keys to the vacant premises upon proof of payment of taxes, rents and subject to tenant’s repairs.
Article L145-30 In the event of failure to hand over the keys on the date specified and after formal notice, the receiver shall withhold
1% per day of lateness of the amount of the compensation and shall return this amount withheld to the lessor against their sole receipt.
Should the deadline of two weeks specified in Article L. 145-58 have ended without the lessor having exercised their right of repentance, the compensation for eviction must be paid to the tenant or, potentially, to a receiver within a deadline of three months with effect from the date of a summons to pay by extra-judicial means which, in order to be valid, must reproduce this subparagraph.
SECTION V Sub-leasing Articles L145-31 to
L145-32
Article L145-31 Unless otherwise stated in the lease or with the lessor’s agreement, no sub-leasing, whether total or in part, shall be
allowed. In the event of authorised sub-leasing, the owner shall be called upon to be a party to the document. Should the sub-leasing rent be in excess of the primary lease price, the owner shall have the option of requiring a
corresponding increase in the rent for the primary lease, which increase, in the absence of agreement between the parties, shall be determined in accordance with a procedure laid down by Conseil d'Etat decree in application of the provisions of Article L. 145-56.
The tenant must notify the owner of their intention to sub-lease by extra-judicial means or by registered letter with confirmation of delivery. Within two weeks of receipt of this notice, the owner must give notice of whether they intend to be a party to the document. Should the lessor refuse or fail to reply despite the authorisation specified in subparagraph one, they shall be disregarded.
Article L145-32 A subtenant may request the renewal of their lease from the primary tenant within the measure of the rights held by
this latter with respect to the owner. The lessor shall be called upon to be a party to the document, as specified in Article L. 145-31.
On expiration of the primary lease, the owner shall be obliged to renew only if they have explicitly or tacitly authorised or agreed to the sub-leasing and if, in the event of partial sub-leasing, the premises comprising the object of the primary lease do not form an indivisible whole materially or in the joint intention of the parties.
SECTION VI Rent Articles L145-33 to
L145-40
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COMMERCIAL CODE Article L145-33 (Act No. 2001-1168 of 11 December 2001 Art. 33 V Official Journal of 12 December 2001)
The amount of the rent payable under the renewed or revised leases corresponds to their rental value. Failing agreement thereon, the said value shall be determined on the basis of: 1 The features of the premises concerned; 2 The use of the premises; 3 The respective obligations of the parties; 4 The local commerciality factors; 5 The prices commonly applied in the vicinity. A Conseil d'Etat Decree determines the relative weightings of these elements.
Article L145-34 (Act No. 2001-1168 of 11 December 2001 Art. 33 VI Official Journal of 12 December 2001)
Barring any substantial change in the elements indicated in 1 to 4 of Article L145-33, the rate of change applied to the rent payable upon entry into force of a renewed lease, if the term thereof does not exceed nine years, cannot exceed the variation in the quarterly national Construction Cost Index published by the Institut national de la statistique and des études économiques since the date on which the initial rent for the expired lease was determined. Failing any contractual clause specifying the reference quarter for the said index, the variation in the quarterly national Construction Cost Index calculated over the nine-year period preceding the most recently published index shall be used.
If renewal takes place subsequent to the date initially stipulated for expiry of the lease, the variation shall be calculated on the basis of the most recently published index for a term equal to the time elapsed between the initial date of the lease and the date of its effective renewal.
The provisions of the above paragraph do not apply when, through the effects of tacit renewal, the term of the lease exceeds twelve years.
Article L145-35 Disputes arising from the application of Article L. 145-34 shall be submitted to a departmental conciliation committee
composed of an equal number of lessors and tenants and of qualified persons. The committee shall endeavour to conciliate the parties and give an opinion.
Should the matter be referred to a court in parallel with the competent committee by one or other of the parties, it may not give a verdict until the committee has given its opinion.
The committee shall be disseized if it fails to give an opinion within a deadline of three months. The composition of the committee, the method of appointment of its members and its operating rules shall be
determined by decree.
Article L145-36 The factors to be used in determining the prices of leases of land, premises built with a view to single occupation
and premises exclusive for office use shall be laid down by Conseil d'Etat decree.
Article L145-37 The rents for leases of immovable properties and premises regulated by the provisions of this chapter, whether
renewed or not, may be revised at the request of one or other of the parties, subject to the reserves specified in Articles L. 145-38 and L. 145-39 and under the conditions laid down by Conseil d'Etat decree.
Article L145-38 (Act No. 2001-1168 of 11 December 2001 Art. 26 Official Journal of 12 December 2001)
Application for a review cannot be made until at least three years have elapsed since the date on which the lessee entered into possession or since the commencement of the renewed lease.
Further applications may be made every three years with effect from the date on which the new amount becomes applicable.
Notwithstanding the provisions of Article L145-33, and failing production of proof of a material change in the local commerciality factors which has of itself given rise to a variation of more than 10% of the rental value, the rent increase or decrease following a triennial review shall not exceed the variation in the quarterly Construction Cost Index since the previous amicable or judicial determination of the rent.
Under no circumstances shall any investment made by the lessee or any capital gains or losses resulting from its management during the term of the lease be taken into account for calculation of the rental value.
Article L145-39 Furthermore and by derogation from Article L. 145-38, should the lease include an escalator clause, a revision may
be requested whenever the rent calculated in accordance with this clause is increased or reduced by more than one quarter in comparison with the price previously determined contractually or by court order.
Article L145-40 Rents paid in advance, in whatever form and even as a guarantee, shall bear interest for the account of the tenant
at the rate charged by the Bank of France for advances against securities for amounts in excess of that corresponding to the price of the rent for more than two terms.
SECTION VII
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COMMERCIAL CODE Cancellation Articles L145-41 to
L145-46
Article L145-41 Any clause inserted in a lease providing for cancellation ipso jure shall not take effect until after a summons to pay
has remained unprofitable for one month. In order to be valid, the summons to pay must state this deadline. A court to which an application is made within the forms and conditions specified in Articles 1244-1 to 1244-3 of the
civil code may, by granting deadlines, suspend the execution and the effects of cancellation clauses if the cancellation is not determined or pronounced by a court order having acquired the status of judgment res judicata. The cancellation clause shall not take effect if the tenant discharges themselves in accordance with the conditions determined by the court.
Article L145-42 Ipso jure cancellation clauses for cessation of activity shall cease to take effect during the time necessary for the
execution of conversions carried out in application of the provisions of section 8. This period may not exceed six months from the date of agreement on non-specialisation or the court order
authorising it.
Article L145-43 Merchants and persons registered in the craft directory who are tenants of the premises in which their business is
located, who are allowed to follow a conversion training course or a promotional training course within the meaning of Article L. 900-2 (3. and 5.) of the labour code, the minimum duration of which is fixed by order and the maximum duration of which may not exceed one year unless it involves a so-called promotional training course benefiting from the authorisation specified in Article L. 961-3 of the said code shall be exempted from the obligation to operate during the term of their training course.
Article L145-44 Should the merchant or craftsperson, on conclusion of one of the training courses specified in Article L. 145-43,
vacate the premises of which they are the tenant to convert their activity by transferring it into other premises or to take up paid employment, the lease shall be cancelled ipso jure and without compensation on expiration of a deadline of three months with effect from the date that this is notified to the lessor.
Article L145-45 An administrative order and winding-up proceedings shall not cause the ipso jure termination of the lease on
immovable properties used for the debtor’s industry, trade or craft, including premises annexed to these properties and used as their living accommodation or that of their family. Any provision to the contrary shall be deemed to be null and void.
Article L145-46 If the lessor is simultaneously the owner of the leased real property and of the business operated therein and if the
lease relates to both simultaneously, the lessor must pay the tenant, on their departure, compensation corresponding to the profit that they may draw from the asset appreciation contributed either to the business or to the rental value of the real property by material improvements carried out by the tenant with the owner’s explicit agreement.
SECTION VIII Non-specialisation Articles L145-47 to
L145-55
Article L145-47 A tenant may add related and/or complementary activities to the activity specified in the lease. To this end, they must notify the owner of their intention by extra-judicial means, stating the activities they envisage
exercising. This formality shall be deemed to be equivalent to formal notice to the owner to give notice, within a deadline of two months in order to avoid forfeiture, of whether they dispute the related and/or complementary nature of these activities. In the event of objection, the Tribunal de grande instance to which the matter is referred by the first to act shall make an order in accordance in particular with the trend in commercial custom and practice.
At the time of the first three-year revision following the notification referred to in the preceding subparagraph, by derogation from the provisions of Article L. 145-38, the additional commercial activities may be taken into account in determining the rent if these have, in themselves, caused a change in the rental value of the rented premises.
Article L145-48 A tenant may, at their request, be authorised to exercise in the rented premises one or more different activities from
those specified in the lease, taking into account the economic climate and the necessities of rational organisation of delivery when these activities are compatible with the intended purpose, characteristics and location of the real property or group of properties.
However, the principal tenant of premises included in a whole constituting a commercial unit defined by a building programme may not exercise this option during a period of nine years with effect from the date on which they took possession.
Article L145-49
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COMMERCIAL CODE In order to be valid, the request made to the lessor must include a statement of the activities whose exercise is
envisaged. It shall be constituted by extra-judicial means and notice shall be given in the same form to secured creditors of the business. These latters may request that the change of activity should be subject to conditions of a nature that safeguards their interests.
Within one month of this request, the lessor must give notice, in the same form, to those of their tenants with respect to which they may be obliged not to let with a view to the exercise of similar activities to those referred to in the request. In order to avoid being out of time, these must give notice of their attitude within one month of this notification.
In the absence of the lessor having given notice of their refusal, acceptance or the conditions to which their agreement is subject within three months of the request, they shall be deemed to have acquiesced to the request. This acquiescence shall not constitute an obstacle to the exercise of the rights specified in Article L. 145-50.
Article L145-50 A change of activity may justify the payment by the tenant of compensation equal to the amount of the prejudice that
the lessor shall be able to prove. In exchange for the benefit procured, at the time of the conversion this latter may also request the amendment of
the price of the lease without the provisions of Articles L. 145-37 to L. 145-39 being applicable. The rights of secured creditors shall be exercised on the converted business in accordance with their previous
ranking.
Article L145-51 If a tenant who has applied to exercise their rights to retirement or who has been granted the benefit of an invalidity
pension allowed by the invalidity/life insurance scheme for the craft professions or the industrial and trade professions has given notice to their landlord and to secured creditors of the business of their intention to assign their lease, stating the nature of the activities whose exercise is envisaged and the proposed price, the lessor shall have a preferential right of repurchase within a deadline of two months subject to the terms and conditions stated in the notification. Should the lessor fail to exercise this right, their agreement shall be deemed to have been obtained if hey have not referred the matter to the Tribunal de grande instance within this same deadline of two months.
The nature of the activities whose exercise is envisaged must be compatible with the intended purpose, characteristics and location of the real property.
The provisions of this article shall apply to the sole member sole member of a one-man limited liability company or a majority shareholder manager since at least two years of a limited liability company when they are the leaseholder.
Article L145-52 The Tribunal de grande instance may authorise the total or partial conversion despite the refusal of the lessor if this
refusal is not justified by a serious and legitimate reason. Should the parties disagree only in respect of the price of the new lease, this shall be determined in accordance
with the procedure specified pour the fixing of the prices of revised leases. In other cases, the matter shall be referred to the court.
Article L145-53 Refusal of the conversion shall be sufficiently justified if the lessor proves that they intend to reoccupy the premises
on expiration of the current three-year term, either in application of Articles L. 145-18 to L. 145-24, or with a view to carrying out works prescribed or authorised within the framework of an urban renovation or real property restoration transaction.
A lessor who has fraudulently invoked one of the reasons specified in the preceding subparagraph or who has not satisfied the conditions given to justify the refusal of a tenant’s request may not object to a new request for a conversion of activity other than for serious and legitimate reasons unless they may be held responsible for failure of execution. They may also be ordered by a court to pay the tenant compensation equal to the prejudice suffered by this latter.
Article L145-54 The asset appreciation conferred upon the business by the conversion specified in Article L. 145-48 shall not be
taken into account if the real property in which the business is operated must be demolished or restored, or if the business must be expropriated within the framework of a property renovation or restoration transaction decided upon less than three years after the request specified in subparagraph 1 of the said article.
Article L145-55 A tenant who has made a request in accordance with Articles L. 145-47, L. 145-48 or L. 145-49 may withdraw it at
any time up to the expiration of a deadline of two weeks with effect from the date on which the decision has become a judgment res judicata by notifying the lessor by extra-judicial means and, in this event, shall bear all the expenses of the proceedings.
SECTION IX Procedure Articles L145-56 to
L145-60
Article L145-56 The rules of competence and procedure for dispute relating to a lease shall be laid down by Conseil d'Etat decree.
Article L145-57
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COMMERCIAL CODE The tenant shall be obliged to continue paying the rents due at the previous price or, if applicable, at the price which
may in all events be determined provisionally by the court to which the matter has been referred during the term of the proceedings relating to determination of the price of the revised or renewed lease, unless there is to be a reckoning between the lessor and the lessee after definitive determination of the price of the rent.
The parties shall draw up a new lease on the terms and conditions laid down by the court within a deadline of one month following service of notice of the definitive decision unless the tenant declines the renewal or the lessor refuses this, subject to the party demonstrating their disagreement being liable to bear all the expenses. Should the lessor fail to have sent the draft lease drawn up in accordance with the aforementioned decision to the lessee for signature within this deadline or, in the absence of agreement within one month of this sending, the order or judgment fixing the price or the terms and conditions of the new lease shall be deemed to constitute the lease.
Article L145-58 Until the expiration of a deadline of two weeks with effect from the date on which the decision has become a
judgment res judicata, the owner may decline to pay the compensation subject to being liable to bear the expenses of the proceedings and to agree to the renewal of the lease, the terms and conditions of which shall be determined, in the event of disagreement, in accordance with the regulatory provisions laid down to this effect. This right may be exercised only if the tenant is still occupying the premises and has not already rented or purchased another real property intended for their reinstallation.
Article L145-59 The owner’s decision to refuse renewal of the lease in application of the last subparagraph of Article L. 145-57 or to
decline to pay the compensation in accordance with the conditions specified in the last subparagraph of Article L. 145-58 shall be irrevocable.
Article L145-60 All proceedings exercised by virtue of this chapter shall be time-barred after two years have elapsed.
CHAPTER VI Nominee Managers Articles L146-1 to
L146-4
Article L146-1 (inserted by Act No. 2005-882 of 2 August 2005 Art. 19 Official Journal of 3 August 2005)
Natural persons or legal entities who manage a business in return for payment of a commission proportionate to the turnover are known as "nominee managers" when the contract entered into with the principal on behalf of whom they manage that business, sometimes within the framework of a network, who remains the owner thereof and bears the risks associated with its operation, confers a mission on them which gives them a free hand within the framework thus established to determine their working conditions, to take on staff and to arrange substitutes for themselves within the business at their own expense and under their own responsibility.
The nominee manager is registered in the trade and companies register and, if applicable, the trade register. The contract is referred to in the said registers and details thereof are published in a journal authorised to publish legal notices.
The provisions of the present chapter do not apply to professions governed by Chapter II of Part VIII of Book VII of the Labour Code.
Article L146-2 (inserted by Act No. 2005-882 of 2 August 2005 Art. 19 Official Journal of 3 August 2005)
The principal provides the nominee manager with all the information he needs for his work, as specified by decree, before the contract is signed, to enable him to commit himself in full knowledge of the facts.
Article L146-3 (inserted by Act No. 2005-882 of 2 August 2005 Art. 19 Official Journal of 3 August 2005)
A framework agreement entered into by the principal and the nominee managers to whom he is contractually bound, or their representatives, determines, inter alia, the amount of the guaranteed minimum commission payable under all nominee-management contracts entered into by the said principaL.The said minimum commission takes account of the size of the establishment and its operational facilities.
Failing agreement thereon, the Minister for Small and Medium-Sized Businesses determines the amount of the minimum commission.
Article L146-4 (inserted by Act No. 2005-882 of 2 August 2005 Art. 19 Official Journal of 3 August 2005)
The contract binding the principal and the nominee manager may be terminated at any time under terms determined by the parties. If the contract is terminated by the principal, however, with no serious fault being attributable the nominee manager, the principal shall, unless the parties have agreed more favourable terms, pay him compensation equal to the amount of the commissions, or the guaranteed minimum commission referred to in Article L146-3, earned during the six months preceding termination of the contract, or during the term of the contract if it is shorter than six months.
BOOK II
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COMMERCIAL CODE
Commercial companies and economic interest groups Articles L210-1 to L252-13
TITLE I Preliminary provisions Articles L210-1 to
L210-9
Article L210-1 The commercial nature of a company shall be determined by its form or by its objects. General partnerships, limited partnerships, limited liability companies and joint-stock companies are trading
companies by virtue of their form, irrespective of their objects.
Article L210-2 The form, duration, which may not exceed ninety-nine years, the business name, the registered office, the purpose
of the company and the amount of the registered capital shall be determined by the company’s memorandum and articles of association.
Article L210-3 Companies whose registered office is located on French territory shall be subject to French law. Third parties may avail themselves of the registered office, but this shall not be demurrable with respect to them by
the company if its real office is located in another place.
Article L210-4 The mandatory publication formalities at the time of formation of the company and in the event of subsequent deeds
and deliberations shall be laid down by Conseil d'Etat decree.
Article L210-5 The transactions of limited liability companies and joint-stock companies occurring prior to the sixteenth day of
publication in the Official Gazette of civil and commercial advertisements of deeds and indications subject to this publication shall not be demurrable in respect of third parties able to prove that it had been impossible for them to have become acquainted therewith
Should there be any discrepancy in the publication of deeds and indications relating to limited liability companies and joint-stock companies between the text filed with the commercial and companies register and the text published in the Official Gazette of civil and commercial advertisements, this latter shall not be demurrable with respect to third parties; however, they may avail themselves of it unless the company is able to prove that they have been acquainted with the text filed with the commercial and companies register.
Article L210-6 Trading companies shall have legal personality with effect from their registration in the commercial and companies
register. The conversion in due form of a company shall not give rise to the creation of a new legal personality. The same shall apply with respect to extension.
Persons who have acted in the name of a company in formation before it has acquired enjoyment of legal personality shall be held jointly and indefinitely liable for the acts thus accomplished unless the company, after having been formed and registered in due form, takes over its obligations thus entered into. These obligations shall then be deemed to have been entered into from the start by the company.
Article L210-7 A company shall be registered after the clerk of the competent court has verified the due form of its formation in
accordance with the conditions laid down by the legislative and regulatory provisions relating to the commercial and companies register.
If the memorandum and articles of association do not contain all the statements required by law and the regulations or if a formality laid down by these for the formation of the company has been omitted or not accomplished in due form, any interested party shall be entitled to apply to a court for an order to be made that the formation must be regularised or a fine imposed. The ministère public is competent to act in respect of the same ends.
The provisions of the preceding subparagraphs shall apply in the event of amendment of the memorandum and articles of association. The proceedings specified in subparagraph two shall be time-barred after three years have elapsed with effect from either registration of the company in the commercial and companies register or the amending entry in the said register and the filing in the annex of the said register of the documents amending the memorandum and articles of association.
Article L210-8 The founders of the company and the initial members of its management, administration, executive and monitoring
bodies shall be jointly liable for any prejudice caused by an error in any obligatory statement in the memorandum and articles of association as well as by any omission or failure to accomplish in due form any formality specified by law and the regulations for the formation of the company.
The provisions of the preceding subparagraph shall apply in the event of amendment of the memorandum and articles of association, and of the members of management, administration, executive, monitoring and audit bodies holding office at the time of the said amendment.
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COMMERCIAL CODE Proceedings shall be time-barred after ten years have elapsed with effect from the accomplishment of one or the
other, according to the case, of the formalities referred to in subparagraph four of Article L. 210-7.
Article L210-9 Neither the company nor third parties may, in order to avoid their obligations, avail themselves of an irregularity in
the appointment of persons charged with managing, administrating or directing the company if this appointment has been published in due form.
The company may not avail itself, with respect to third parties, of appointments and withdrawals from office of the persons referred to above while these have not been published in due form.
TITLE II Provisions specific to various commercial companies Articles L221-1 to
L229-15
CHAPTER I General partnerships Articles L221-1 to
L221-17
Article L221-1 The partners in a partnership shall all be deemed to be merchants and shall have unlimited joint liability for the
debts of the partnership. A partnership’s creditors may not pursue payment of the debts of the partnership against a partner until after having
fruitlessly given the partnership formal notice to pay by extra-judicial means.
Article L221-2 A general partnership shall be designated by its business name, in which may be incorporated the names of one or
more partners and which must be immediately preceded or followed by the words “société en nom collectif” (general partnership).
Article L221-3 All the partners shall be managers unless otherwise specified in the memorandum and articles of association, which
may appoint one or more managers, who may or may not be partners, or provide for such appointment by means of a subsequent deed.
Should a legal personality be a manager, its executives shall be subject to the same conditions and obligations and incur the same civil and penal liabilities as though they were managers in their own right, without prejudice to the joint liability of the legal personality which they manage.
Article L221-4 In dealings between partners and in the absence of limitation of their powers by the memorandum and articles of
association, the manager may perform all acts of management in the interests of the partnership. In the event of there being more than one manager, each shall hold separately the powers specified in the
preceding subparagraph, except that each shall have the right to object to any transaction prior to its conclusion.
Article L221-5 In dealings with third parties, the manager shall bind the partnership by acts within the purpose of the company. In the event of there being more than one manager, each shall hold separately the powers specified in the
preceding subparagraph. An objection formulated by one manager to the acts of another manager shall not be effective with respect to third parties unless it is proved that they were aware thereof.
Clauses of the memorandum and articles of association limiting the powers of the managers resulting from this article shall not be demurrable with respect to third parties.
Article L221-6 Decisions which exceed the powers accorded to the managers shall be taken by unanimous agreement of the
partners. However, the memorandum and articles of association may specify that certain decisions shall be taken by a specified majority.
The memorandum and articles of association may also specify that decisions shall be taken by means of consultation by exchange of letters if a general meeting is not requested by one of the partners.
Article L221-7 (Order No. 2004-1382 of 20 December 2004 Art. 6 Official Journal of 22 December 2004)
The management report, inventory and annual accounts drawn up by the chief executive are subject to approval by the meeting of members within six months of the close of the said financial year.
To that end, the documents referred to in the previous paragraph, the text of the proposed resolutions and, where applicable, the auditor's report, the consolidated accounts and the group's management report, are sent to the members in the manner and within the time limits determined in a Conseil d'Etat decree. Any deliberation which violates the provisions of the present paragraph and its implementing decree may be declared void.
Any clause contrary to the provisions of the present article and its implementing decree is deemed not to exist. The third to sixth paragraphs of Article L. 225-100 and Article L. 225-100-1 apply to the management report when all
the shares are held by persons having one of the following forms: public limited company, partnership limited by shares,
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COMMERCIAL CODE limited liability company.
NB: Order 2004-1382 2004-12-20 Art. 12: The provisions of the present order shall apply with effect from the first financial year commenced on or after 1 January 2005.
Article L221-8 Partners who are not managers shall have the right to obtain, twice per year, communication of the partnership’s
books and documents and to ask written questions on the company’s management, which written replies must be given.
Article L221-9 The partners may appoint one or more auditors within the terms specified in Article L. 221-6. At least those partnerships which exceed, at the end of the financial year, the figures laid down by Conseil d'Etat
decree for two of the following criteria shall be obliged to designate an auditor: their balance sheet total, the amount of their turnover excluding VAT or the average number of employees during the financial year.
Even if these thresholds are not reached, one partner may apply to the court for an auditor to be appointed.
Article L221-10 (Law No 2003-706 of 1 August 2003 Article 112 Official Gazette of 2 August 2003)
I. - The auditors, who must be chosen from the list referred to in Article L. 225-219, are appointed for a term of six financial years.
II. and III. - Paragraphs repealed. IV. - Resolutions passed when the auditors have not been ?properly appointed, or based on a report from auditors
who were appointed or retained contrary to the provisions of the present Article are null and void. The nullity is extinguished if the said resolutions are expressly confirmed by a general meeting on the basis of a report from properly appointed auditors.
Article L221-11 The provisions relating to the powers, the incompatibilities referred to in Article L. 225-222, the functions, the
obligations, the liability, the substitution, the challenging, the dismissal and the remuneration of auditors of public companies shall apply to general partnerships, subject to the specific rules applicable to these latters.
The auditor shall be advised of shareholders’ meetings and consultations no later than at the same time as its partners. They shall have access to shareholders’ meetings.
The documents referred to in subparagraph one of Article L. 221-7 shall be made available to the auditor subject to the conditions and deadlines laid down by Conseil d'Etat decree.
Article L221-12 If all the partners are managers or if one or more managers chosen among the partners are designated in the
memorandum and articles of association, the dismissal of one of them from their office may be decided only by unanimous agreement of the other partners. It shall cause the dissolution of the partnership unless its continuation is specified in the memorandum and articles of association or if the other partners decide upon it by unanimous agreement. The dismissed manager may then decide to withdraw from the partnership and demand the repayment of their shares, the value of which shall be determined in accordance with Article 1843-4 of the civil code. Any clause contrary to Article 1843-4 of the said code shall be deemed null and void.
If one or more of the partners are managers and are not designated in the memorandum and articles of association, each of them may be dismissed from their office subject to the conditions specified in the memorandum and articles of association or, in the absence thereof, by a decision taken by unanimous agreement of the other partners, whether managers or not.
A manager who is not a partner may be dismissed conditions subject to the conditions specified in the memorandum and articles of association or, in the absence thereof, by a decision taken by unanimous agreement of the partners.
Should the dismissal be decided without due cause, it may give rise to damages.
Article L221-13 The shares may not be represented by negotiable securities. They may be sold only with the consent of all the
partners. Any clause to the contrary shall be deemed null and void.
Article L221-14 The assignment of shares must be determined in writing. It shall be rendered demurrable with respect to third
parties under the terms specified in Article 1690 of the civil code. However, service of notice may be replaced by the deposit of an original of the deed of assignment at the registered office in exchange for a certificate of this deposit issued by the manager.
It shall not be demurrable with respect to third parties until after these formalities have been accomplished and, moreover, after publication in the commercial and companies register.
Article L221-15 The partnership shall terminate on the death of one of the partners, subject to the provisions of this article. Should it have been specified that, in the event of the death of one of the partners, the partnership should continue
with their heir or only with the surviving partners, these provisions shall be followed with the exception of specifying that the heir must be approved by the partnership in order to become a partner.
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COMMERCIAL CODE The same shall apply if it has been specified that the partnership should continue with the surviving spouse, or with
one or more of the heirs, or with any other person designated by the memorandum and articles of association or, if these so authorise, by the provisions of a will.
If the partnership continues with the surviving partners, the heir shall be simply a creditor of the partnership and shall be entitled only to the value of the deceased partner’s shares. The heir shall similarly be entitled to this value if it has been specified that they must be approved by the partnership in order to become a partner and if this approval has been refused.
If the partnership continues subject to the conditions specified in subparagraph three above, the beneficiaries of the specification shall be obliged to pay the estate the value of the shares allocated to them.
In all the situations specified in this article, the value of the shares shall be determined as of the date of death in accordance with Article 1843-4 of the civil code.
In the event of continuation and if one of or more of the partner’s heirs are unemancipated minors, these latters shall be liable for the debts of the partnership only up to the power of the deceased partner’s estate. Moreover, the partnership must be converted, within a deadline of one year from the death, into a limited partnership in which the minor becomes a partner. In the absence thereof, it shall be dissolved.
Article L221-16 (Act No. 2005-845 of 26 July 2005 Art. 162 I Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
When a winding-up order is made or a total assignment plan is imposed, or when a prohibition on involvement in a commercial business or an incapacity order becomes final in regard to a partner, the company is dissolved unless its continuation is stipulated in the memorandum and articles of association or unless the other partners unanimously so decide.
If the company continues, the value of the shares and voting rights to be repaid to the departing partner is determined pursuant to Article 1843-4 of the Civil Code. Any clause contrary to Article 1843-4 of the said code is deemed unwritten.
Article L221-17 By derogation from the provisions of Articles L. 221-2 and L. 222-3, general partnerships which were using the
name of one or more deceased founding partners in their business name on 1 April 1967 may be authorised to retain this name in their business name.
A Conseil d'Etat decree shall determine the conditions to which this authorisation shall be subject. This decree shall also define the conditions under which an objection may be referred by third parties to judicial
courts.
CHAPTER II Limited partnerships Articles L222-1 to
L222-12
Article L222-1 Managing partners shall have the statute of general partners. Limited partners shall be liable for the debts of the partnership only in respect of the amount of their contribution.
This may not be a contribution in the form of services.
Article L222-2 The provisions relating to general partnerships shall apply to limited partnerships, subject to the rules specified in
this chapter.
Article L222-3 A limited partnership shall be designated by its business name, in which may be incorporated the names of one or
more partners and which must be immediately preceded or followed by the words “société en commandite simple” (limited partnership).
Article L222-4 The memorandum and articles of association of the partnership must contain the following indications: 1. The amount or the value of the contributions of all the partners 2. The share in this amount or this value of each active partner and limited partner 3. The total share of the active partners and the share of each limited partner in the dividends and in the residual.
Article L222-5 Decisions shall be taken in accordance with the conditions specified in the memorandum and articles of association. However, a general meeting of all the partners shall be legally convened if requested by either one active partner or one quarter by number and by capital of the limited partners.
Article L222-6 A limited partner may not carry out any external act of management, even by virtue of a power of attorney. In the event of infringement of the prohibition specified in the preceding subparagraph, the limited partner shall be
held jointly liable with the active partners for any debts and obligations of the partnership which may result from the
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COMMERCIAL CODE prohibited acts. According to the number and size of these, they may be declared jointly liable for all obligations of the partnership or for some only.
Article L222-7 Limited partners shall have the right to obtain, twice per year, communication of the partnership’s books and
documents and to ask written questions on the company’s management, which written replies must be given.
Article L222-8 I. - Shares may be assigned only with the consent of all the partners. II. - However, the memorandum and articles of association may specify: 1. That the shares of limited partners may be freely assigned between partners 2. That the shares of limited partners may be freely assigned to third parties outside the partnership with the consent of all the active partners and the majority by number and by capital of the limited
partners. 3. That an active partner may assign some of their shares to a limited partner or to a third party outside the
partnership subject to the conditions specified in 2. above.
Article L222-9 The partners may not change the nationality of the partnership other than by unanimous agreement. All other
amendments of the memorandum and articles of association may be decided upon with the consent of all the active partners and the majority by number and by capital of the limited partners.
Clauses decreeing more onerous majority conditions shall be deemed null and void.
Article L222-10 The partnership shall continue despite the death of a limited partner. Should it be specified that, despite the death of an active partner, the partnership shall continue with their heirs,
these shall become limited partners if they are unemancipated minors. Should the deceased partner have been the sole active partner and if their heirs are all unemancipated minors, the deceased partner must be replaced by a new active partner or the partnership must be converted within a deadline of one year with effect from the death. In the absence thereof, the partnership shall be dissolved ipso jure on expiration of this deadline.
Article L222-11 If an order is made for the administrative order or winding-up proceedings in respect of one of the active partners, or
if an order prohibiting the exercise of a commercial profession or if an incapacity order is made in respect of one of the active partners, the partnership shall be dissolved unless it has one or more other active partners, its continuation is specified in its memorandum and articles of association or if the partners so decide by unanimous agreement. In this event, the provisions of subparagraph two of Article L-221-16 shall apply.
Article L222-12 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The provisions of Article L. 221-17 are applicable to limited partnerships.
CHAPTER III Limited liability companies Articles L223-2 to
L223-43
Article L223-2 (Order No 2000-916 of 19 September 2000 Article 4 and Annex II Official Gazette of 22 September 2000 in force on l January 2002) (Law No 2003-721 of 1 August 2003 Article 1 (I) Official Gazette of 5 August 2003)
The amount of the company's capital is determined by the memorandum and articles of association. It is divided into equal capital shares.
Article L223-3 (Order No. 2004-274 of 25 March 2004 Art. 11 Official Journal of 27 March 2004)
The number of members of a limited liability company shall not exceed one hundred. If such a company comes to have more than one hundred members, it shall be dissolved after a period of one year has elapsed unless the number of members has become equal to or lower than one hundred, or the company has been converted, during that period.
Article L223-4 Should all the shares in a limited liability company be gathered together in the ownership of one shareholder, the
provisions of Article 1844-5 of the civil code relating to court-ordered dissolution shall not apply.
Article L223-5 A limited liability company may not have another limited liability company comprising only one person as its sole
member. In the event of infringement of the provisions of the preceding subparagraph, any interested party may apply for the
dissolution of irregularly constituted companies. If the irregularity results from the gathering together in the ownership of one shareholder of all the shares in a limited liability having more than one member, the application for dissolution may not be made less than one year after the gathering together of the shares. Irrespective of the circumstances, a court
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COMMERCIAL CODE may grant a maximum deadline of six months to regularise the situation and may not order the dissolution if compliance has taken place on the date on which the court gives judgment on the merits of the case.
Article L223-6 All the members must be parties to the deed of formation of the company, either in person or via a proxy on
production of a special authorisation.
Article L223-7 (Act No 2001-420 of 15 May 2001 Article 1241 Official Gazette of 16 May 2001)
The total number of shares created must be subscribed by the members. They must be fully paid if they represent contributions in kind. At least one fifth of the face value of shares representing contributions in cash must be paid. The balance may be paid in one or more payments at the managing member’s discretion, within a deadline which may not exceed five years with effect from registration of the company in the commercial and companies register. However, the registered capital must be paid in full before any new shares may be subscribed in cash for the transaction to be valid.
If applicable, the memorandum and articles of association shall specify the terms and conditions under which shares may be subscribed in the form of services.
The ownership of the shares shall be stated in the memorandum and articles of association. Funds arising from the payment of shares must be deposited within the conditions and deadlines specified by
Conseil d'Etat decree.
Article L223-8 (Order No. 2004-274 of 25 March 2004 Art. 15 Official Journal of 27 March 2004)
The company's authorised representative shall not withdraw the funds resulting from the paying-up of the shares until the company is entered in the register of companies.
If the company is not incorporated within six months of the first deposit of funds, or if it is not entered in the register of companies within that same period, the contributors may individually institute legal proceedings seeking permission to withdraw the amount of their contributions. In the same circumstances, a representative of all the contributors may directly request withdrawal of the funds from the custodian.
If the contributors subsequently decide to form the company, new funds must be deposited.
Article L223-9 (Order No 2000-916 of 19 September 2000 Article 4 and Annex II Official Gazette of 22 September 2000 in force on l January 2002)
The memorandum and articles of association must contain a valuation of each contribution in kind. This shall be made in the light of a report annexed to the memorandum and articles of association and drawn up by and under the responsibility of an auditor of the formation proceedings appointed by unanimous decision of the future members or, in the absence thereof, by a court order applied for by the proceeding future partner.
However, the future members may decide by unanimous decision that the use of an auditor of the formation proceedings shall not be mandatory if no contribution in kind exceeds a value of 7 500 euros and if the total value of all the contributions in kind not subject to valuation by an auditor of the formation proceedings does not exceed half the capital.
If the company is formed by only one person, the auditor of the formation proceedings shall be appointed by the sole member. However, the use of an auditor of the formation proceedings shall not be mandatory if the conditions specified in the preceding subparagraph are complied with.
If there is no auditor of the formation proceedings or if the stated value is different from that suggested by the auditor of the formation proceedings, the members shall be jointly liable for five years with respect to third parties for the value attributed to contributions in kind at the time of formation of the company.
Article L223-10 Initial managers and members to whom nullity of the company is attributable shall be jointly liable with respect to the
other members and third parties for the prejudice resulting from cancellation. Proceedings shall be time-barred by the deadline specified in subparagraph one of Article L. 235-13.
Article L223-11 (Order No. 2004-274 of 25 March 2004 Art. 12 Official Journal of 27 March 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 XV Official Journal of 10 December 2004)
A limited liability company which is required by virtue of Article L. 223-35 to appoint an auditor and whose accounts for the last three twelve-month accounting periods have been duly approved by its members, may issue registered bonds without making a public offering.
The bond issue is decided by the meeting of the members pursuant to the provisions applicable to general meetings of shareholders. Such securities are subject to the provisions applicable to bonds issued by joint-stock companies, with the exception of those envisaged in Articles L. 228-39 to L. 228-43 and L. 228-51.
Upon each issue of bonds by a company which fulfils the conditions of the first paragraph, the company shall make a notice available to the subscribers concerning the conditions of issue and an information document as determined in a Conseil d'Etat decree.
Under pain of the guarantee being declared null and void, a limited liability company is prohibited from guaranteeing an issue of transferable securities unless the issue is made by a regional development company or is a bond issue which benefits from a subsidiary guarantee from the State.
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COMMERCIAL CODE Article L223-12
The shares may not be represented by negotiable securities.
Article L223-13 (Order No. 2004-274 of 25 March 2004 Art. 13 Official Journal of 27 March 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 XV Official Journal of 10 December 2004)
The shares are freely transferable through succession or in the event of liquidation of community of property between spouses and are freely assignable between spouses and between ascendants and descendants.
The articles of association may nevertheless stipulate that the spouse, an heir, an ascendant or a descendant may only become a member after having been approved as provided for in Article L. 223-14. The time limit set for the company to decide on an application for approval shall not exceed that determined in Article L. 223-14, and the majority required shall not be greater than that determined in the said article, failing which the stipulation shall be null and void. If approval is refused, the provisions of the third and fourth paragraphs of Article L. 223-14 apply. If none of the solutions envisaged in those paragraphs is arrived at within the time allowed, approval is deemed to have been granted.
The articles of association may stipulate that in the event of the death of a member, the company shall continue with his heir or with the surviving members only. If the company continues with the surviving members only, or if the heir is refused approval, the latter is entitled to the value of the shares and voting rights of his predecessor in title.
It may also be stipulated that the company shall continue with the surviving spouse, with one or more of the heirs, or with any other person designated in the articles of association or, if the said articles so permit, in the last will and testament.
In the cases envisaged in the present article, the value of the shares and voting rights is determined on the day of death pursuant to Article 1843-4 of the Civil Code.
Article L223-14 (Act No. 2003-721 of 1 August 2003 Art. 1 III Official Journal of 5 August 2003) (Order No. 2004-274 of 25 March 2004 Art. 14 Official Journal of 27 March 2004)
The shares may only be transferred to third parties outside the company with the consent of the majority of the members representing at least one half of the shares, unless the articles of association stipulate a greater majority.
If the company has more than one member, the transfer proposal is notified to the company and to each of the members. If the company has not made its decision known within three months of the date of the last notification given pursuant to the present paragraph, consent for the transfer is deemed to have been given.
If the company has refused to consent to the transfer, the members are required, within three months of such refusal, to purchase or arrange the purchase of the shares at a fixed price as provided for in Article 1843-4 of the Civil Code, unless the transferor waives his right to transfer his shares. The valuation fees are borne by the company. If the chief executive so requests, this time limit may be extended by a court decision, which extension shall not exceed six months.
With the transferring member's consent, the company may also decide, within the same time limit, to reduce its capital by the amount of the nominal value of that member's shares and buy up those shares at a price determined as provided for above. The company may be granted a time limit for payment of not more than two years by a court decision, if duly justified. The sums owed bear interest at the legal rate applicable to commercial transactions.
If, upon expiry of the time allowed, none of the solutions envisaged in the third and fourth paragraphs above has been arrived at, the member proceed with the transfer initially planned.
With the exception of succession, liquidation of community of property between spouses, or a donation in favour of a spouse, an ascendant or a descendant, the transferring member may only avail himself of the provisions of the third and fifth paragraphs above if he has held his shares for at least two years.
Any clause contrary to the provisions of the present article is deemed not to exist.
Article L223-15 Should the company have given its consent to a proposal to take a charge on shares subject to the conditions
specified in subparagraphs one and two of Article L. 223-14, this consent shall imply consent to the transferee in the event of the forced sale of the charged shares in accordance with the provisions of subparagraph one of Article 2078 of the civil code unless the company prefers to repurchase the shares after the assignment with a view to reducing its capital.
Article L223-16 Shares may be freely assigned between members. Should the memorandum and articles of association contain a clause limiting transferability, the provisions of Article
L. 223-14 shall apply. However, in this event the memorandum and articles of association may reduce the majority or shorten the deadline specified in the said article.
Article L223-17 The assignment of shares shall be subject to the provisions of Article L. 221-14.
Article L223- 19 The manager or the auditor if one is appointed shall submit to the shareholders' meeting or append to the
documents communicated to the members in the event of a consultation by exchange of letters a report on agreements entered into directly or via intermediaries by the company and any of its managers or members. The shareholders' meeting shall rule on this report. The managers or members concerned may not participate in the vote and their shares
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COMMERCIAL CODE shall not be taken into account for the calculation of the quorum and the majority.
However, should no auditor have been appointed, the agreements entered into by a manager who is not a member shall be subject to the prior approval of the shareholders' meeting.
By derogation from the provisions of subparagraph one, if a company enters into an agreement with its sole member, this shall simply be entered in the register of decisions.
Agreements not approved shall, nevertheless, remain effective subject to the contracting manager and, if applicable, member being jointly or severally liable, according to the case, for any consequences of the agreement prejudicial to the company.
The provisions of this article shall extend to agreements entered into with a company of which a member with unlimited liability, manager, director, general manager, member of the management or member of the supervisory board is simultaneously a manager or member of the limited liability company.
Article L223-20 The provisions of Article L. 223-19 shall not apply to agreements relating to ordinary transactions conducted under
normal conditions.
Article L223-21 Managers and members other than legal personality shall be prohibited from contracting loans from the company
irrespective of their form, from arranging for it to grant them a loan account or other borrowing whatsoever, or to arrange for the company to stand surety for them or act as their guarantor in respect of their obligations to third parties. Any such arrangement shall be null and void. This prohibition shall apply to the legal agents of members that are legal personalities.
The prohibition shall apply to the spouse and relatives in the ascending and descending line of the persons referred to in the preceding subparagraph, as well as to any intermediary.
However, if the company operates a financial establishment, this prohibition shall not apply to current commercial transactions entered into subject to normal terms and conditions.
Article L223-22 Managers shall be jointly or severally liable, according to the circumstances, to the company or to third parties for
breaches of the legislative or regulatory provisions applicable to limited liability companies, for breaches of the memorandum and articles of association, and for their errors of management.
Should more than one manager have cooperated in the same circumstances, the court shall determine the contributory share of each in the reparations.
In addition to proceedings for reparation of prejudice suffered personally, the members may instigate civil liability proceedings against the managers, either individually or as a group subject to the conditions laid down by Conseil d'Etat decree. The plaintiffs shall be authorised to pursue reparation for the entirety of the prejudice suffered by the company to which, if applicable, damages may be granted.
Any clause in the memorandum and articles of association having the effect of subordinating the exercise of civil proceedings to prior notice to or authorisation of the shareholders’ meeting, or which contains a waiver of the exercise of these proceedings shall be deemed null and void.
No decision by the shareholders’ meeting may have the effect of extinguishing civil liability proceedings against the managers for errors committed in the performance of their office.
Article L223-23 The liability proceedings specified in Articles L. 223-19 and L. 223-22 shall be time-barred after three years with
effect from the prejudicial act or, if it has been dissembled, from its disclosure. However, proceedings shall be time-barred after ten years if the act is classified as criminal.
Article L223-24 In the event of an administrative order or winding-up proceedings being instigated in application of the provisions of
book VI, title II, the persons referred to in these provisions may be rendered liable for the debts of the company and shall be subject to the prohibitions and forfeitures in accordance with the conditions specified by the said provisions.
Article L223-25 (Order No. 2004-274 of 25 March 2004 Art. 17 Official Journal of 27 March 2004)
The chief executive may be dismissed by a decision of the members as provided for in Article L. 223-29, unless the articles of association stipulate a larger majority. If dismissal is decided upon without good cause, it may give rise to damages.
The chief executive may also be dismissed by the courts on good grounds, at the request of any member. Contrary to the first paragraph, the chief executive of a limited liability company operating a press business within
the meaning of Article 2 of Act No. 86-897 of 1 August 1986, which reforms the law and jurisdiction applicable to the press, may be dismissed only by a decision of the members representing at least three quarters of the share capital.
Article L223-26 (Order No. 2004-1382 of 20 December 2004 Art. 5 Official Journal of 22 December 2004)
The management report, the inventory and the annual accounts established by the chief executive are subject to approval by the meeting of members within six months of the close of the financial year.
To that end, the documents referred to in the previous paragraph, the text of the proposed resolutions and, where
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COMMERCIAL CODE applicable, the auditor's report, the consolidated accounts and the group's management report, are sent to the members in the manner and within the time limits determined in a Conseil d'Etat decree. Any deliberation which violates the provisions of the present paragraph and its implementing decree may be declared void.
After dispatch of the communication referred to in the previous paragraph, any member is entitled to submit written questions which the chief executive must reply to at the meeting.
As provided for in a Conseil d'Etat decree, the members may at any time have sight of the company documents determined by the said decree pertaining to the previous three financial years.
Any clause contrary to the provisions of the present article and its implementing decree is deemed not to exist. The third to sixth paragraphs of Article L. 225-100 and Article L. 225-100-1 apply to the management report. Where
applicable, Article L. 225-100-2 applies to the consolidated management report. NB: Order 2004-1382 2004-12-20 Art. 12: The provisions of the present order shall apply with effect from the first
financial year commenced on or after 1 January 2005.
Article L223-27 (Act No. 2003-7 of 3 January 2003 Art. 50 II Official Journal of 4 January 2003) (Order No. 2004-274 of 25 March 2004 Art. 18 Official Journal of 27 March 2004)
The decisions are taken at a meeting. The articles of association may nevertheless stipulate that, with the exception of those referred to in the first paragraph of Article L. 223-26, all decisions or certain decisions may be taken via written consultation of the members or may result from the consent of all the members expressed in an act.
The members are invited to attend meetings in the manner and within the time limits determined in a Conseil d'Etat decree. The meeting is convened by the chief executive or, failing this, by the auditor, if there is one. The meeting shall not be held until the time limit for production of the documents referred to in Article L. 223-26 has expired.
One or more members holding one half of the shares or, if they represent at least one quarter of the members, holding one quarter of the shares, may request that a meeting be convened. Any clause to the contrary is deemed not to exist.
Any member may ask the court to appoint a representative to convene the meeting and determine its agenda. In the event of the death of the sole chief executive, the auditor or any member may convene a meeting of the
members for the sole purpose of replacing the chief executive. Such meetings are convened in the manner and within the time limits determined in a Conseil d'Etat decree.
Any irregularly convened meeting may be cancelled. An action for voidance is nevertheless inadmissible if all the members were present or represented.
Article L223-28 Each member shall be entitled to participate in the decisions and shall have a number of votes equal to that of the
company’s shares they hold. A member may mandate their spouse to represent them on condition that the company is not composed only of the
two spouses. If there are more than two members, a member may mandate another member to represent them. They may not mandate any person other than those permitted by the memorandum and articles of association. A member may not mandate another person to vote a proportion of their shares and vote the other proportion in
person. Any clause contrary to the provisions of subparagraphs one, two or four above shall be deemed null and void.
Article L223-29 In the shareholders’ meetings or on the occasion of consultation by exchange of letters, decisions shall be passed
by one or more members representing more than half the company’s shares. Should this majority not be obtained in the absence of specification to the contrary in the memorandum and articles
of association, the members shall be summoned to a second meeting or consulted a second time, according to the circumstances, and decisions shall be passed by a majority of the votes cast, irrespective of the number of parties voting.
Article L223-32 In the event of an increase in capital by the subscription of shares in cash, the provisions of the final subparagraph
of Article L. 223-7 shall apply. Funds arising from the subscription of shares may be withdrawn by the company’s proxy holder after the deposit
receipt has been issued. Should the increase in capital not be carried out within the deadline of six months with effect from the first deposit of
the funds, the provisions of subparagraph two of Article L. 223-8 may be applied.
Article L223-33 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
If the increase in capital is effected, either wholly or partly, by means of contributions in kind, the provisions of the first line of Article L. 223-9 are applicable. However, the valuer of contributions in kind is appointed by a decision of the court at the behest of a partner.
When a valuer of contributions in kind has not been consulted, or when the valuation used differs from that proposed by the valuer of contributions in kind, the company's managers and the persons who subscribed to the increase in capital are jointly and severally liable for five years, in regard to third parties, for the value assigned to the said contributions.
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COMMERCIAL CODE Article L223-34
A reduction of capital may be authorised by the shareholders’ meeting ruling in accordance with the conditions laid down for amendments to the memorandum and articles of association. Under no circumstances may it interfere with the equality of the members.
If auditors have been appointed, notice of the proposed reduction of capital shall be communicated to them within the deadline laid down by Conseil d'Etat decree. They shall make their opinion on the causes and conditions of the reduction known to the shareholders’ meeting.
Should the shareholders’ meeting approve a proposed reduction of capital not motivated by losses, creditors whose debt antedates the date on which the minutes of the deliberation are filed with the clerk may lodge an objection to the reduction within the deadline laid down by Conseil d'Etat decree. A court order shall reject the objection or order either the repayment of the debts or the formation of guarantees if the company offers them and if they are judged adequate. Reduction of capital transactions may not begin during the deadline for objections.
A company may not purchase its own shares. However, a shareholders’ meeting which has decided in favour of a reduction of capital not motivated by losses may authorise the manager to buy a specified number of shares in order to cancel them.
Article L223-35 The members may appoint one or more auditors in accordance with the conditions specified in Article L. 223-29. At least those limited liability companies which exceed, at the end of the financial year, the figures laid down by
Conseil d'Etat decree two of the following criteria shall be obliged to designate an auditor: their balance sheet total, the amount of their turnover excluding VAT or the average number of employees during the financial year.
Even if these thresholds are not reached, one or more members representing at least one tenth of the capital may apply to the court for an auditor to be appointed.
Article L223-36 Members who are not managers shall have the right, twice per financial year, to ask written communication of the
company’s books and documents and to ask the manager written questions concerning any matter which might compromise continuity of the operation. The manager’s reply shall be communicated to the auditor.
Article L223-37 One or more partners representing at least one tenth of the registered capital may, either individually or as a group
under any form whatsoever, apply to the court for one or more experts to be appointed and charged with presenting a report on one or more management transactions.
The ministère public and the works council are competent to act in respect of the same ends. Should the court accede to the application, the court order shall determine the scope of the mission and the powers
of the experts. It may rule that the fees shall be for the account of the company. The report shall be addressed to the applicant, to the ministère public, to the works council, to the auditor and to the
manager. This report must also be annexed to that drawn up by the auditor for the next general meeting and receive the same publicity.
Article L223-38 (Law No 2003-706 of 1 August 2003 Article 112 Official Gazette of 2 August 2003)
I. - The auditors, who must be chosen from the list referred to in Article L. 225-219, are appointed for a term of six financial years.
II. and III. - Paragraphs repealed. IV. - Resolutions passed when the auditors have not been ?properly appointed, or based on a report from auditors
who were appointed or retained contrary to the provisions of the present Article are null and void. The nullity is extinguished if the said resolutions are expressly confirmed by a general meeting on the basis of a report from properly appointed auditors.
Article L223-39 The provisions relating to the powers, the incompatibilities referred to in Article L. 225-222, the functions, the
obligations, the liability, the substitution, the challenging, the dismissal and the remuneration of auditors of public companies shall apply to limited liability companies, subject to the specific rules applicable to these latters.
The auditors shall be advised of shareholders’ meetings and consultations no later than at the same time as the members. They shall have access to shareholders’ meetings.
The documents referred to in subparagraph one of Article L. 223-26 shall be made available to the auditor subject to the conditions and deadlines laid down by Conseil d'Etat decree.
Article L223-40 The repayment of dividends not corresponding to profits made in reality may be imposed upon the members who
have received them. Proceedings for repayment shall be time-barred after three years with effect from the date on which the dividends
became payable.
Article L223-41 A limited liability company shall not be dissolved if a court order for the court-ordered winding-up, personal
bankruptcy, prohibition from management as specified by Article L. 625-8 or legal disability measure is made with
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COMMERCIAL CODE respect to one of the members.
It shall also not be dissolved by the death of a member unless otherwise specified in the memorandum and articles of association.
Article L223-42 (Law No 2003-721 of 1 August 2003 Article 1 (IV) Official Gazette of 5 August 2003)
If, on account of losses recorded in the accounting documents, the company's capital were to fall below half of the value of the share capital, the partners shall, within four months of approving the accounts that show that loss, decide whether there are grounds for early dissolution of the company.
If dissolution is not decided with the majority required by the memorandum and articles of association, the company is required, not later than the end of the second financial year following that in which the losses were recorded, to reduce its capital by an amount at least equal to that of the losses which could not be charged to reserves, if, during that period, the shareholders' equity has not been reconstituted to a level at least equal to one half of the share capital.
In either case, the resolution adopted by the partners is published in accordance with the terms prescribed in a Conseil d'Etat decree.
If the chief executive or the auditor should fail to secure a decision, or if the partners are unable to validly deliberate, any interested party may ask the court to dissolve the company. The same applies if the provisions of the second paragraph above have not been applied. In all such cases, the court may grant the company a maximum period of six months in which to put the situation in order, and cannot order its dissolution if the situation has already been put in order by the day on which it rules on the merits.
The provisions of the present Article do not apply to companies in receivership or subject to a recovery plan.
Article L223-43 (Order No 2000-916 of 19 September 2000 Article 4 and Annex II Official Gazette of 22 September 2000 in force on 1 January 2002)
The conversion of a limited liability company into a general partnership, a limited partnership or a limited partnership that issues shares shall require the unanimous agreement of all its members.
Conversion into a limited company must be decided by the majority required for amendments to the memorandum and articles of association. However, it may be decided upon by members representing the majority of the shares if the shareholders’ funds stated on the last balance sheet exceed 750 000 euros.
The decision must be preceded by a report by a registered auditor on the company’s situation. Any conversion carried out in breach of the rules in this article shall be null and void.
CHAPTER IV General provisions applicable to joint-stock companies Articles L224-1 to
L224-3
Article L224-1 A joint-stock company shall be designated by a business name, which must be immediately preceded or followed by
a statement of the duration of the company and the amount of the registered capital. The name of one or more members may be included in the business name. However, the names of limited partners
may not be included in the business name of a limited partnership that issues shares.
Article L224-2 (Order No 2000-916 of 19 September 2000 Article 4 and Annex II Official Gazette of 22 September 2000 in force on 1 January 2002)
The registered capital must be at least 225 000 euros if the company’s shares are offered to the public and at least 37000 euros in the contrary case.
A reduction of the registered capital to a lesser amount may be decided upon only subject to the suspensive condition of an increase in capital destined to raise this to an amount at least equal to the amount specified in the preceding subparagraph unless the company is converted into another form of company. In the event of failure to comply with the provisions of this subparagraph, any interested party may apply to the court for the dissolution of the company. This dissolution may not be ordered if the situation has been regularised on the date on which the court gives judgment on the merits of the case.
By derogation from subparagraph one, the capital of press journalist’s companies must be at least 300 euros if they are constituted in the form of a limited company
Article L224-3 (Law No 2001-420 of 15 May 2001 Article 100 Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 98 Official Gazette of 2 August 2003)
When a company, regardless of its form, which does not have an auditor is converted into a joint-stock company, one or more conversion auditors, responsible for estimating the value of the items that comprise the corporate assets and the special advantages, are appointed either by a unanimous decision of the partners or by a decision of the court at the request of the company's executives or one of their number. The conversion auditors may be tasked with drafting the report on the company's situation referred to in the third paragraph of Article L. 223-43. In which case, only one report is written. The conversion auditors are subject to the incompatibilities referred to in Article L. 225-224. The company's auditor can be appointed as a conversion auditor. The report is made available to the partners.
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COMMERCIAL CODE The partners adjudicate on the valuation of the assets and the awarding of the special advantages. They can only
reduce them unanimously. Failing the express approval of the partners duly recorded in the minutes, the conversion is null and void.
CHAPTER V Public limited companies Articles L225-2 to
L225-1
Article L225-1 A limited company is a company whose capital is divided into shares and which is formed among members who
shall bear any losses only up to the amount of their contributions. The number of members may not be less than seven.
SECTION I Formation of public limited companies Articles L225-2 to
L225-16
Subsection 1 Formation with a public offering Articles L225-2 to
L225-11
Article L225-2 The draft memorandum and articles of association shall be drawn up and signed by one or more founders, who
shall file one copy with the clerk of the Tribunal de commerce of the district in which the registered office is located. The founders shall publish a notice in accordance with the conditions laid down by Conseil d'Etat decree. No
subscription may be received if the formalities specified in subparagraphs one and two above have not been complied with.
Persons who have forfeited the right of directorship or management of a company or who are disqualified from holding these offices may not be founders.
Article L225-3 The capital must be fully subscribed. Shares subscribed in cash must be paid in respect of at least fifty percent paid of their face value. The balance may
be paid in one or more payments, at the discretion of the board of directors or the management according to the case, within a deadline which may not exceed five years with effect from registration of the company in the commercial and companies register.
Shares subscribed in kind must be paid in full at the time of their issue. Shares may not represent contributions in the form of services.
Article L225-4 The subscription of shares in cash shall be evidenced by a subscription form drawn up in accordance with the
conditions laid down by Conseil d'Etat decree.
Article L225-5 Funds arising from subscriptions in cash and the subscribers’ list, specifying the amounts paid by each subscriber,
shall be deposited in accordance with the conditions laid down by Conseil d'Etat decree, which shall also determine the conditions under which the right to communication of this list shall be opened.
With the exception of the deposits referred to by the decree specified in the preceding subparagraph, no party may hold the sums gathered on behalf of a company in formation for more than one week.
Article L225-6 Subscriptions and payments shall be evidenced by a receipt issued by the depository at the time of deposit of the
funds, on presentation of the subscription forms.
Article L225-7 Once the receipt of deposit has been issued, the founders shall summon the subscribers to a constitutive
shareholders’ meeting in accordance with the conditions and deadlines laid down by Conseil d'Etat decree. This meeting shall confirm that the capital has been fully subscribed and that the shares have been paid in respect of the amount due. It shall decide on the adoption of the memorandum and articles of association, which may be amended only by unanimous decision of all the subscribers, appoint the first directors or members of the supervisory board and designate one or more auditors. The minutes of the session of the meeting shall observe, if applicable, the acceptance of their office by the directors or members of the supervisory board and by the auditors.
Article L225-8 In the event of contributions in kind as in the event of the specification of special benefits for persons who may or
may not be members of the company, one or more auditors of the formation proceedings shall be designated by court order at the request of one or more of the founders. They shall be subject to the incompatibilities specified by Article L. 225-224.
The auditors of the formation proceedings shall appraise, subject to their own responsibility, the value of the contributions in kind and the special benefits. The report, filed with the clerk with the proposed memorandum and
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COMMERCIAL CODE articles of association, shall be held at the disposal of the subscribers in accordance with the conditions laid down by Conseil d'Etat decree.
The constitutive shareholders’ meeting shall rule on the valuation of the contributions in kind and the granting of special benefits. It may reduce them only by unanimous decision of all the subscribers.
In the absence of explicit approval by the contributors and the beneficiaries of special benefits stated in the minutes, the company shall not be formed.
Article L225-9 Subscribers of shares shall participate in the vote or mandate another person to represent them in accordance with
the conditions specified in Articles L. 225-106, L. 225-110 and L. 225-113. The constitutive shareholders’ meeting shall deliberate in accordance with the quorum and majority conditions
specified for special shareholders’ meetings.
Article L225-10 Should the general meeting deliberate on the approval of a contribution in kind or the granting of a special benefit,
the shares of the contributor or the beneficiary shall not be taken into account in the calculation of the majority. The contributor or the beneficiary shall not be entitled to participate in the deliberation either in person or as a proxy.
Article L225-11 Funds arising from subscriptions in cash may not be withdrawn by the company’s proxy holder before it is registered
in the commercial and companies register. Should the company not be formed within the deadline of six months with effect from the deposit of the proposed
memorandum and articles of association with the registry, any subscriber may apply to a court for the appointment of a proxy authorised to withdraw the funds and return them to the subscribers, subject to deduction of the expenses of distribution.
A new deposit of funds and the declaration specified in Articles L. 225-5 and L. 225-6 must be made if the contributors decide subsequently to form the company.
Subsection 2 Formation without a public offering Articles L225-12 to
L225-16
Article L225-12 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
When there is no public issue, the provisions of Subsection 1 apply, with the exception of Articles L. 225-2, L. 225-4, L. 225-7, the second, third and fourth paragraphs of Article L. 225-8, and Articles L. 225-9 and L. 225-10.
Article L225-13 Payments shall be evidenced by a certificate issued by the depository at the time of deposit of the funds, on
presentation of the list of shareholders, stating the amounts paid by each of them.
Article L225-14 The memorandum and articles of association must contain an evaluation of any contributions in kind. This shall be
carried out by an auditor of the formation proceedings, who shall draw up a report under their own responsibility to be annexed to the memorandum and articles of association.
The same procedure must be followed if special benefits are specified.
Article L225-15 The memorandum and articles of association must be signed by the shareholders either in person or via a proxy on
production of a special authorisation, after the issue of the deposit receipt and after the report specified in Article L. 225-14 has been placed at the disposal of the shareholders in accordance with the conditions and deadlines laid down by Conseil d'Etat decree.
Article L225-16 The first directors and the first members of the supervisory board and the first auditors shall be designated in the
memorandum and articles of association.
SECTION II Management and administration of public limited companies Articles L225- 17 to
L225-95-1
Subsection 1 Board of directors of the general management Articles L225- 17 to
L225-42-1
Article L225- 17 (Law No 2001-420 of 15 May 2001 Article 104 (I) and Article 105 Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 128 Official Gazette of 2 August 2003)
A limited company is administered by a board of directors composed of at least three members. The memorandum
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COMMERCIAL CODE and articles of association stipulate the maximum permissible number of board members, which shall not exceed eighteen.
In the event of the death, resignation or removal from office of the chairman of the board of directors, the board may, if it has been unable to replace him from among its members, and without prejudice to the provisions of Article L. 225-24, appoint an additional director to perform the chairman's functions.
Article L225-18 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The directors shall be appointed by the constitutive shareholders’ meeting or by the routine shareholders’ meeting. In the circumstances specified by Article L. 225-16, they shall be designated in the memorandum and articles of association. The term of their office shall be determined by the memorandum and articles of association but may not exceed six years in the event of appointment by general meetings or three years in the event of appointment in the memorandum and articles of association. However, in the event of merger or division, the appointment may be made by the special shareholders’ meeting.
The directors shall be eligible for re-election unless otherwise specified in the memorandum and articles of association. They may be dismissed at any time by the routine shareholders’ meeting.
Any appointment made in breach of the preceding provisions shall be null and void, with the exception of those which may be made in accordance with the conditions specified in Article L. 225-24.
Article L225-l9 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The memorandum and articles of association must specify an age limit for the exercise of the office of director either for all the directors or for a specific percentage of them.
In the absence of an explicit provision in the memorandum and articles of association, the number of directors over the age of seventy years may not be more than one third of the directors in office.
Any appointment made in breach of the provisions in the preceding subparagraph shall be null and void. In the absence of an explicit provision in the memorandum and articles of association specifying another procedure,
the oldest director shall be deemed to be retiring from office when the age limit for the directors specified in the memorandum and articles of association or by law is exceeded.
Article L225-20 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
A legal personality may be appointed as a director. On their appointment, they must designate a permanent representative, who shall be subject to the same conditions
and obligations and who shall incur the same civil and penal liabilities as if they were a director in their own name, without prejudice to the joint liability of the legal personality they represent.
Should the legal personality dismiss its representative, it must appoint their replacement at the same time.
Article L225-21 (Law No 2001-420 of 15 May 2001 Article 105 and Article 1001 (1) Official Gazette of 16 May 2001) (Law No 2002-1303 of 29 October 2002 Article 1 (I) Official Gazette of 30 0ct 2002)
No natural person shall concurrently hold more than five directorships of limited companies having their registered office on French soil.
Contrary to the provisions of the first paragraph, this shall not apply to directorships or supervisory board membership of companies which are controlled, within the meaning of Article L. 233-16, by the company of which that natural person is a director.
For the purposes of the present Article, directorships of companies whose shares are not quoted on a regulated stock market within the meaning of Article L. 233-16 and are held by a single company count as one directorship, subject to the number of such directorships held not exceeding five.
Any natural person who is in breach of the provisions of the present Article shall resign from one of his directorships within three months of being appointed, or from the directorship in question within three months of the occurrence of the event which resulted in a condition of the previous paragraph no longer being met. Upon expiry of that period, he shall be deemed to have resigned either from his new directorship or from the directorship which no longer meets the conditions laid down in the previous paragraph, whichever applies, and shall return the remuneration received. This shall not affect the validity of the deliberations in which he participated.
Article L225-22 (Act No. 2001-420 of 15 May 2001 Art. 105 Official Journal of 16 May 2001) (Act No. 2001-1168 of 11 December 2001 Art. 33 II Official Journal of 12 December 2001)
An employee of the company can only become a director if his contract of employment relates to actual employment. He shall not lose the benefit of that contract of employment. Any directorship conferred in breach of this paragraph is null and void. Such voidance shall not entail voidance of the deliberations that the illegally appointed director participated in.
The number of directors bound to a company by a contract of employment shall not exceed one third of the serving directors.
However, directors elected by the employees, directors representing the employee shareholders or the company's open-end investment company pursuant to Article L225-23, and, in public companies with worker participation, the
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COMMERCIAL CODE representatives of the workers' cooperative society, are not included in the number of directors bound to the company by a contract of employment referred to in the previous paragraph.
In the case of a merger or demerger, the contract of employment may have been entered into with one of the merged companies or with the demerged company.
Article L225-23 (Law No 2001-152 of 19 February 2001 Article 24 (1) and Article 25 (I) Official Gazette of 20 February 2001) (Law No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001) (Law No 2002-73 of 17 January 2002 Article 217 (1) and (2) Official Gazette of 18 January 2002)
If the report presented to the general meeting by the board of directors pursuant to Article L. 225-102 establishes that the shares held by the companies' staff and by the staff of affiliated companies within the meaning of Article L.225-180 represent more than 3% of the company's share capital, one or more directors shall be elected by the general meeting of shareholders on a proposal from the shareholders as provided for in Article L. 225-102 and as prescribed in the relevant decree. Those directors shall be elected from among the employee-shareholders or, if appropriate, from among the employee-shareholders who are members of the supervisory board of a company investment trust which holds shares in the company. Such directors are not counted when the minimum and maximum numbers of directors are determined pursuant to Article L. 225-17.
If an extraordinary general meeting is not held within eighteen months of the report being presented, any employee-shareholder may request the presiding judge, ruling on a summary basis, to direct the board of directors, under pain of a coercive fine, to convene an extraordinary general meeting and submit draft resolutions to it aimed at amending the memorandum and memorandum and articles of association as provided for in the preceding paragraph and in the final paragraph of the present Article.
If the request is upheld, the coercive fine and the legal costs shall be paid by the directors. Companies whose board of directors includes one or more directors designated by the members of the supervisory
boards of company investment trusts representing the members, or one or more employees elected pursuant to the provisions of Article L. 225-27, are exempted from the obligations referred to in the first paragraph.
If an extraordinary general meeting is convened pursuant to the first paragraph, it also rules on a draft resolution to provide for the election of one or more directors by the staff of the company and of the direct or indirect subsidiaries having their registered office in France. If appropriate, these representatives are designated as provided for in Article L. 225-27.
Article L225-24 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
In the event of vacancy due to the death or resignation of one or more directors, the board of directors may make appointments on a provisional basis between general meetings. Should the number of directors have fallen below the legal minimum, the remaining directors must immediately convene the routine shareholders’ meeting with a view to completing the board’s numbers.
Should the number of directors have fallen below the minimum number specified in the memorandum and articles of association without, however, being below the legal minimum, the board of directors must make appointments on a provisional basis with a view to completing its numbers within a deadline of three months with effect from the date on which the vacancy arises.
The appointments made by the board by virtue of subparagraphs one and two above shall be subject to confirmation by the very next routine shareholders’ meeting. In the absence of confirmation, the deliberations made and the acts carried out beforehand by the board shall remain no less valid.
Should the board fail to make the required appointments or to convene the meeting, any interested party may apply to the court for the designation of a proxy charged with convening the general meeting in order to make the appointments or to confirm the appointments specified in subparagraph three.
Article L225-25 (Act No 2001-420 of 15 May 2001 Article 105(3) Official Gazette of 16 May 2001)
Each director must own a number of the company’s shares determined by the memorandum and articles of association.
Should a director not own the required number of shares on the date of their appointment or should they cease to own them during the term of their office, they shall be deemed to have resigned from office if they have not regularised the situation within a deadline of three months.
The provisions of subparagraph one shall not apply to shareholder employees appointed as directors in application of Article L. 225-23.
Article L225-26 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The auditors shall ensure, under their own responsibility, compliance with the provisions specified in Article L. 225-25 and shall give notice of any breach in their report to the annual general meeting.
Article L225-27 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The memorandum and articles of association may specify that, in addition to the directors whose number and method of appointment are specified in Articles L. 225-17 and L. 225-18, the board of directors shall contain directors
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COMMERCIAL CODE elected either by the company’s employees or by the employees of the company and those of its direct or indirect subsidiaries which have their registered office located on French territory. The number of these directors may not exceed four, or five in companies whose shares are not listed on a regulated stock exchange, nor may they exceed one third of the number of the other directors. Should the number of directors elected by the employees be equal to or in excess of two, engineers, executives and similar shall have one less directorship.
The directors elected by the employees shall not be taken into account for the determination of the minimum number and the maximum number of directors specified in Article L. 225-17.
Article L225-28 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The directors elected by the employees must have an employment contract with the company or with one of its direct or indirect subsidiaries which have their registered office located on French territory antedating their appointment by at least two years and corresponding to a real employment. However, the condition of length of service shall not be required if the company has been formed for less than two years on the date of their appointment.
All the company’s employees and, if applicable, all the employees of its direct or indirect subsidiaries which have their registered office located on French territory, whose employment contract antedates the date of the date of the election shall be electors. The ballot shall be by secret vote.
Should at least one directorship be reserved for engineers, executives and similar, the employees shall be divided into two electing bodies voting separately. The first electing body shall comprise engineers, executives and similar, the second the other employees. The memorandum and articles of association shall determine the distribution of the directorships by electing body in accordance with the employee structure.
The candidates or lists of candidates may be proposed either by one or more representative trades union organisations within the meaning of Article L. 423-2 of the employment code or by one twentieth of the electors or, if their number is in excess of two thousand, by one hundred of them.
Should there be one directorship to fill for the whole of the electoral body, a majority vote with two ballots must be held. Should there be one directorship to fill in an electing body, the election must be held by majority vote with two ballots within this electing body. In addition to the name of the candidate, each candidature must include the name of their potential replacement. The candidate having obtained the absolute majority of the votes cast in the first ballot or the relative majority in the second ballot shall be declared elected.
In the other cases, the election shall be by proportional representation based on the list according to the highest vote and without vote splitting. The list must include a number of candidates double that of the directorships to be filled.
In the event of a tied vote, the candidates with the earliest-dated employment contracts shall be declared elected. The other terms and conditions of the vote shall be determined by the memorandum and articles of association. Disputes relating to the electorate, eligibility and the due form of the electoral operations shall be brought before the
trial judge, who shall give a final decision in accordance with the conditions specified by subparagraph one of Article L. 433-11 of the employment code.
Article L225-29 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The directors shall be eligible for re-election unless otherwise specified in the memorandum and articles of association.
Any appointment made in breach of Articles L. 225-27, L 225-28 and this article shall be null and void. This nullity shall not cause that of the deliberations in which the irregularly appointed director has participated.
Article L225-30 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The office of director elected by the employees shall be incompatible with any office of trades union representative, member of the works council, employee representative or member of the company’s health, safety and working conditions committee. A director who holds one or more of these offices at the time of their election must resign from it or them within one week. Should they fail to do so, they shall be deemed to have resigned their office of director.
Article L225-31 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
Directors elected by the employees shall not lose the benefit of their employment contract. Their remuneration as an employee may not be reduced by virtue of the exercise of their office.
Article L225-32 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
Breach of the employment contract shall terminate the office of director elected by the employees. Directors elected by the employees may not be dismissed other than for fault in the performance of their office by
order of the presiding judge of the Tribunal de grande instance, given in session in chambers at the request of the majority of the members of the board of directors. The order shall be immediately enforceable.
Article L225-33 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
Except in the event of termination at the employee’s initiative, the breach of the employment contract of a director elected by the employees may be pronounced only by the board of judgment of the conseil de prud'hommes ruling in the form of summary proceedings. The order shall be immediately enforceable.
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COMMERCIAL CODE Article L225-34 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
I. - In the event of the vacancy of an office of director elected by the employees due to death, resignation, dismissal, breach of employment contract or for any other reason whatsoever, the vacant office shall be filled in the following manner:
1. If the election has taken place by majority vote with two ballots, by the replacement 2. If the election has taken place by list, by the candidate appearing on the same list immediately after the last
candidate elected. II. The term of office of the director thus designated shall end on the arrival of the normal term of office of the other
directors elected by the employees.
Article L225-35 (Law No 2001-420 of 15 May 2001 Article 105 and Article 106 (1) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 129 Official Gazette of 2 August 2003)
The board of directors determines the broad lines of the company's business activities and ensures their implementation. Without prejudice to the powers expressly invested in meetings of the shareholders, and in so far as the memorandum and articles of association permit, it deals with all matters relating to the conduct of the company's business and decides all pertinent issues through its deliberations.
In its dealings with third parties, the company is bound even by acts of its board of directors which do not come within the purview of the company's corporate mission, unless it can prove that the third party knew that a specific action was extraneous to that mission or, given the circumstances, could not have been ignorant of that fact, and mere publication of the memorandum and articles of association does not suffice to constitute such proof.
The board of directors shall carry out the inspections and verifications which it considers appropriate. The company's chairman or general manager is required to send all the documents and information necessary to perform this task to each director.
Undertakings, avals and guarantees given by companies other than banks or other financial institutions must be authorised by the board of directors as prescribed in a Conseil d'Etat decree. That decree also determines the conditions under which any transaction which exceeds that authorisation can be raised against third parties.
Article L225-36 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The transfer of the registered office within the same department or within an adjacent department may be decided upon by the board of directors, subject to confirmation of this decision by the next routine shareholders’ meeting.
Article L225-36-l (inserted by Act No 2001-420 of 15 May 2001 Article 105 and 106(2) Official Gazette of 16 May 2001)
The company’s memorandum and articles of association shall determine the rules relating to the convening and deliberations of the board of directors.
Should it not have met for more than two months, at least one third of the members of the board of directors may call upon the chairman to convene it with a specified agenda.
The general manager may also call upon the chairman to convene the board of directors with a specified agenda. The chairman shall be bound by the requests addressed to them by virtue of the two preceding subparagraphs.
Article L225-37 (Act No. 2001-420 of 15 May 2001 Art. 105 and Art. 109 1 Official Journal of 16 May 2001) (Act No. 2003-706 of 1 August 2003 Art. 117 I 1, II Official Journal of 2 August 2003) (Act No. 2005-842 of 26 July 2005 Art. 5 I, Art. 7 I Official Journal of 27 July 2005)
The board of directors may validly deliberate only if at least half of its members are present. Any clause to the contrary is deemed unwritten.
Unless the memorandum and articles of association require a larger majority, the decisions are taken on a majority vote of the members present or represented.
Unless the board is convened to deal with matters referred to in Articles L232-1 and L233-16, and barring any contrary provision in the memorandum and articles of association, the internal regulations may provide for directors who participate in the meeting via videoconferencing or via a telecommunications medium which permits their identification and guarantees their effective participation to be deemed to be present for calculation of the quorum and the majority. The nature of, and implementing regulations for, such media are determined in a Conseil d'Etat decree. The memorandum and articles of association may limit the nature of the decisions which may be made at such meetings and provide for a right of objection for a given number of directors.
Barring any contrary provision in the memorandum and articles of association, the chairman of the meeting has a casting vote in the event of a split vote.
The directors, and any other persons invited to attend board meetings, are bound by secrecy in regard to any information of a confidential nature presented as such by the chairman of the board of directors.
In companies that make public offerings, the chairman of the board of directors describes the preparation and organisation of the board's work and the internal auditing procedures put in place by the company in a report attached to the report referred to in Articles L225-100, L225-102, L225-102-1 and L233-26. Without prejudice to the provisions of Article L225-56, the said report also indicates any limitations the board of directors places on the powers of the general manager.
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COMMERCIAL CODE Article L225-38 ( (Law No 2001-420 of 15 May 2001 Article 105 and Article 111 (1) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 123 (I) (6) Official Gazette of 2 August 2003)
Any agreement entered into, either directly or through an intermediary, between the company and its general manager, one of its assistant general managers, one of its directors, one of its shareholders holding a fraction of the voting rights greater than 10% or, in the case of a corporate shareholder, the company which controls it within the meaning of Article L. 233-3, must be subject to the prior consent of the board of directors.
The same applies to agreements in which a person referred to in the previous paragraph has an indirect interest. Agreements entered into between the company and another firm are also subject to prior consent if the company's
general manager, one of its assistant general managers or one of its directors is the owner, an indefinitely liable partner, a manager, a director or a member of that firm's supervisory board or, more generally, is in any way involved in its management.
Article L225-39 (Law No 2001-420 of 15 May 2001 Article 105 and Article 111 (5) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 123 (I) (1) Official Gazette of 2 August 2003)
The provisions of Article 225-38 are not applicable to agreements relating to current operations entered into under normal terms and conditions.
Such agreements are nevertheless made known to the chairman of the board of directors by the interested party unless they are of no significance to any party, given their objective or their financial implications. A list of such agreements and their objectives is sent to the members of the board of directors and to the auditors by the chairman.
Article L225-40 (Act No 2001-420 of 15 May 2001 Article 105 and Article 111(8) Official Gazette of 16 May 2001)
The interested party must inform the board immediately upon becoming aware of an agreement to which Article L. 225-38 applies. They may not participate in the vote on the requested prior approval of the Board. The chairman of the board of directors shall advise the auditors of all agreements authorised and shall submit them to the general meeting for approval.
The auditors shall present a special report on the agreements to the meting, which shall rule on this report. The interested party may not participate in the vote and their shares shall not be taken into account for the
calculation of the quorum and the majority.
Article L225-41 (Act No 2001-420 of 15 May 2001 Article 105 and Article 111(10) Official Gazette of 16 May 2001)
Agreements approved by the meeting shall produce their effects with respect to third parties, as shall those which it refuses, unless they are cancelled in the event of fraud.
Even in the absence of fraud, the prejudicial consequences to the company of refused agreements may be charged to the interested party and, potentially, to the other members of the board of directors.
Article L225-42 (Act No 2001-420 of 15 May 2001 Article 105 and Article 111(10) Official Gazette of 16 May 2001)
Without prejudice to the liability of the interested party, agreements referred to in Article L. 225-38 and entered into without the prior authorisation of the board of directors may be cancelled if they have prejudicial consequences for the company.
Nullity proceedings shall be time-barred after three years with effect from the date of the agreement. However, should the agreement have been dissembled, the starting point for the term of limitation shall be carried forward to the date on which it was revealed.
Nullity may be covered by a vote of the general meeting taken on the special report of the auditors setting out the circumstances by virtue of which the authorisation procedure has not been followed. The provisions of subparagraph four of Article L. 225-40 shall apply.
Article L225-43 (Act No 2001-420 of 15 May 2001 Article 105 and Article 111(11) Official Gazette of 16 May 2001)
In order for the contract to be valid, directors other than legal personalities shall be prohibited from contracting loans from the company irrespective of their form, from arranging for it to grant them a loan account or other borrowing whatsoever, or to arrange for the company to stand surety for them or act as their guarantor in respect of their obligations to third parties.
However, if the company operates a banking or financial establishment, this prohibition shall not apply to current commercial transactions entered into under normal conditions.
The same prohibition shall apply to the general manager, to assistant general managers and to permanent representatives of directors which are legal personalities. It shall also apply to the spouse and relatives in the ascending and descending line of the persons referred to in this article, as well as to any intermediary.
The prohibition shall not apply to loans granted to directors elected by the employees by the company in application of the provisions of Article L. 313-1 of the construction and dwelling place code.
Article L225-44 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
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COMMERCIAL CODE Subject to the provisions of Article L. 225-22 and Article L. 225-27, the directors may not receive any permanent or
other remuneration from the company other than those specified in Articles L. 225-45, L. 225-46, L. 225-47 and L. 225-53.
Any clause to the contrary in the memorandum and articles of association shall be deemed null and void and any decision to the contrary shall be deemed null and void.
Article L225-45 (Act No 2001-420 of 15 May 2001 Article 105 and Article 117(1) Official Gazette of 16 May 2001)
As remuneration for their activities and in the form of directors' fees, the general meeting may grant the directors an annual fixed amount which this meeting shall determine without being bound by the provisions of the memorandum and articles of association or previous decisions. The amount of these shall be charged to operating expenses. Their distribution among the directors shall be determined by the board of directors.
Article L225-46 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The board of directors may grant exceptional remunerations for missions or mandates conferred upon directors. In such cases, these remunerations shall be charged to operating expenses and subject to the provisions of Articles L. 225-38 to L. 225-42.
Article L225-47 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The board of directors shall elect a chairman from among its members who, in order for their appointment to be valid, must be a natural person. It shall determine their remuneration.
The chairman shall be appointed for a term which may not exceed their term of office as a director. They shall be eligible for re-election.
The board of directors may dismiss them at any time. Any provision to the contrary shall be deemed null and void.
Article L225-48 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
The memorandum and articles of association must specify an age limit for the performance of the office of chairman of the board of directors which, in the absence of an explicit provision, shall be fixed at sixty-five years.
Any appointment made in breach of the provisions specified in the preceding subparagraph shall be deemed null and void. A chairman of the board of directors shall be deemed to retire from office on reaching the age limit.
Article L225-50 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
In the event of the temporary incapacity or death of the chairman, the board of directors, may delegate a director to the office of the chairman.
In the event of temporary incapacity, this delegation shall be made or a limited term. It may be renewed. In the event of death, it shall be valid until the election of the new chairman.
Article L225-51 (Law No 2001-420 of 15 May 2001 Article 105 and Article 106 (3) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 117 (I) (3) Official Gazette of 2 August 2003)
The chairman of the board of directors organises and oversees its work and reports to the General Meeting thereon. He sees to it that the company's management structures function well and ensures, in particular, that the directors are able to accomplish their task.
Article L225-51-1 (Act No 2001-420 of 15 May 2001 Article 105 and 106(4) Official Gazette of 16 May 2001)
The general management of the company shall be assumed under their responsibility by either the chairman of the board of directors or by another natural person appointed by the board of directors and bearing the title of general manager.
In accordance with the conditions defined by its memorandum and articles of association, the board of directors shall choose between the two forms of performance of the general management referred to in subparagraph one. The shareholders and third parties shall be informed of this choice in accordance with the conditions laid down by Conseil d'Etat decree
If the general management of the company is assumed by the chairman of the board of directors, the provisions of this sub-section relating to the general manager shall apply to them.
Article L225-52 (Act No 2001-420 of 15 May 2001 Article 105 Official Gazette of 16 May 2001)
In the event of the instigation of an administrative order or winding-up proceedings in application of title II of book VI, the persons referred to by these provisions may be rendered liable for the debts of the company and shall be subject to the prohibitions and forfeitures in accordance with the conditions specified by these provisions.
Article L225-53 (Act No 2001-420 of 15 May 2001 Article 105 and Article 107(1) Official Gazette of 16 May 2001)
On the proposal of the general manager, the board of directors may appoint one or more natural persons charged
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COMMERCIAL CODE with assisting the general manager, with the title of assistant general manager.
The memorandum and articles of association shall determine the maximum number of assistant general managers, which may not exceed five. The board of directors shall determine the remuneration of the general manager and the assistant general managers.
Article L225-54 (Act No 2001-420 of 15 May 2001 Article 105 and Article 107(2) Official Gazette of 16 May 2001)
The memorandum and articles of association shall specify an age limit for the performance of the office of general manager and the assistant general manager which, in the absence of an explicit provision, shall be fixed at sixty-five years.
Any appointment made in breach of the provisions specified in the preceding subparagraph shall be deemed null and void.
A general manager or assistant general manager shall be deemed to retire from office on reaching the age limit.
Article L225-54-1 (Law No 2001-420 of 15 May 2001 Article 105 and Article 110 (3) Official Gazette of 16 May 2001) (Law No 2002-1303 of 29 October 2002 Article 1 (II) Official Gazette of 30 0ct 2002)
No natural person shall concurrently act as a general manager of more than one limited company having its registered office on French soil.
Contrary to the provisions of the first paragraph: - a natural person can concurrently act as a general manager, a director or the sole managing director of another
company which is controlled, within the meaning of Article L. 233-16, by the company of which that natural person is a general manager;
- a natural person who is a general manager of one company may also be a managing director, a director or the sole managing director of another company, provided that its shares are not quoted on a regulated stock market.
Any natural person who is in breach of the provisions of the present Article shall resign from one of his directorships within three months of being appointed, or from the directorship in question within three months of the occurrence of the event which resulted in a condition laid down in the previous paragraph no longer being met. Upon expiry of that period, he shall be deemed to have resigned either from his new directorship or from the directorship which no longer meets the conditions laid down in the previous paragraph, whichever applies, and shall return the remuneration received. This shall not affect the validity of the deliberations in which he participated.
Article L225-55 (Act No 2001-420 of 15 May 2001 Article 105 and Article 107(3) Official Gazette of 16 May 2001)
The general manager may be dismissed at any time by the board of directors. The same shall apply, on the proposal of the general manager, to the assistant general managers. Should the dismissal be decided without good cause, it may give rise to damages, except when the general manager assumes the office of chairman of the board of directors.
Should the general manager cease to or be unable to perform their office, the assistant general managers shall retain their office and remuneration, unless decided otherwise by the board, until the appointment of the new general manager.
Article L225-56 (Act No 2001-420 of 15 May 2001 Article 105 and Article 107(4) Official Gazette of 16 May 2001)
I. - The general manager shall be invested with the most extensive powers to act on behalf of the company in all circumstances. They shall exercise their powers subject to those that the Law allocates explicitly to shareholders’ meetings and to the board of directors.
They shall represent the company in its dealings with third parties. The company shall be bound even by those acts of the general manager not covered by the purpose of the company unless it is able to prove that the third party was aware that the act exceeded these objects or that could not have known it in view of the circumstances, the simple publication of the memorandum and articles of association being excluded from constituting this proof.
Provisions in the memorandum and articles of association and decisions of the board of directors limiting the powers of the managers resulting from this article shall not be demurrable with respect to third parties.
II. - In agreement with the general manager, the board of directors shall determine the scope and the term of the powers conferred upon the assistant general managers.
The assistant general managers shall have the same powers as the general manager with respect to third parties.
Article L225-22-1 (inserted by Act No. 2005-842 of 26 July 2005 Art. 8 I Official Journal of 27 July 2005)
In companies whose securities are admitted to trading on a regulated market, if a person bound by a contract of employment to the company or to any other controlled company or controlling company within the meaning of II and III of Article L233-16 is appointed as its general manager or chief executive officer, the said contract's provisions, if any, relating to elements of remuneration, compensation or benefits payable or likely to become payable on account of those functions being transferred or altered, or thereafter, shall be subject to the provisions of Articles L225-38 and L225-40 to L225-42.
NB: Act No. 2005-842 of 26 July 2005 Art. 8 II: the provisions of Article 8 I are applicable to agreements entered into with effect from 1 May 2005.
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COMMERCIAL CODE Article L225-42-1 (inserted by Act No. 2005-842 of 26 July 2005 Art. 8 I Official Journal of 27 July 2005)
In companies whose securities are admitted to trading on a regulated market, commitments made to their chairmen, general managers or chief executive officers, by the company itself or by any controlled or controlling company within the meaning of II and III of Article L233-16, relating to elements of remuneration, compensation or benefits payable or likely to become payable on account of their functions ceasing or changing, or thereafter, are subject to the provisions of Articles L225-38 and L225-40 to L225-42.
NB: Act No. 2005-842 of 26 July 2005 Art. 8 II: the provisions of Article 8 I are applicable to agreements entered into with effect from 1 May 2005.
Subsection 2 Management and supervisory board Articles L225-57 to
L225-90-1
Article L225-57 The memorandum and articles of association of any public limited company may stipulate that it shall be governed
by the provisions of this sub-section. If so, the company shall remain subject to all rules applicable to public limited companies, except those contained in Articles L. 225-17 to L.225-56.
It may be decided during the existence of the company that this stipulation shall be introduced into, or deleted from, its memorandum and articles of association.
Article L225-58 (Order No 2000-916 of 19 September 2000 Article 4 and Annex II, Official Gazette of 22 September 2000, in force on 1 January 2002)
A public limited company shall be managed by a management consisting of not more than five members. Where the company's shares are admitted for trading on a regulated market, the said number may be increased to seven by the memorandum and articles of association.
In public limited companies with a share capital of less than 150,000 euros, the functions conferred on the management may be exercised by a single person.
The management shall exercise its functions under the supervision of a supervisory board.
Article L225-59 The members of the management shall be appointed by the supervisory board, which shall appoint one of the said
members as chairman. Where a single person exercises the functions conferred on the management, that person shall take the title of"sole
managing director". Members of the management, or the sole managing director, must be natural persons, failing which their
appointment shall be void. They may be chosen from outside the shareholders.
Article L225-60 The memorandum and articles of association must lay down an age limit for the exercising of the functions of a
member of the management or of a sole managing director. In the absence of any express provision, the said age limit shall be sixty-five years.
Any nomination made in breach of the provisions of the preceding sub-paragraph shall be void. On attaining the said age, a member of the management or the sole managing director shall be deemed to resign
from office.
Article L225-61 (Law No 2001-420 of 15 May 2001 Article 108 Official Gazette of 16 May 2001)
The members of the management or the sole managing director may be dismissed by the general meeting, and also, if the memorandum and articles of association so provide, by the supervisory board. If the decision to dismiss them is unreasonable, they may be entitled to sue for damages.
If the interested party has entered into a contract of employment with the company, their dismissal from the post of director shall not have the effect of terminating the said contract.
Article L225-62 The memorandum and articles of association shall determine the term of office of the management within limits of
between two and six years. In the absence of any provision in the memorandum and articles of association, the term of office shall be four years. If any post becomes vacant during the said term, the replacement director shall be appointed for the remainder of the mandate of the current management.
Article L225-63 The deed of appointment shall fix the method and amount of the remuneration to be paid to each member of the
management.
Article L225-64 The management shall have the widest powers to act on the company's behalf in any circumstances. It shall
exercise its said powers within the limits of the purpose of the company and subject to the powers expressly attributed by the law to the supervisory board and shareholders' meetings.
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COMMERCIAL CODE In dealings with third parties, the company shall be bound even by acts of the management that do not relate to its
objects, unless it can prove that the third party was aware that the act in question was beyond the scope of the said objects or that in the circumstances it could not have been unaware of that fact. Mere publication of the memorandum and articles of association is considered not to be sufficient proof thereof.
Provisions of the memorandum and articles of association limiting the powers of the management shall not be binding on third parties.
The management shall consider and take its decisions in accordance with the conditions laid down by the memorandum and articles of association.
Article L225-65 The supervisory board may decide to move the company's registered office within the same department or to an
adjacent department, subject to the ratification of its said decision by the next routine shareholders’ meeting.
Article L225-66 The chairman of the management or the sole managing director, as the case may be, shall represent the company
in its dealings with third parties. Nevertheless, the memorandum and articles of association may empower the supervisory board to attribute the
same power of representation to one or more other members of the management, who will then be known as the managing director(s).
Provisions of the memorandum and articles of association limiting the powers of representation of the company shall not be binding on third parties.
Article L225-67 (Law No 2001-420 of 15 May 2001 Article 105 and Article 110 (4) Official Gazette of 16 May 2001) (Law No 2002-1303 of 29 October 2002 Article 1 (III) Official Gazette of 30 0ct 2002)
No natural person shall concurrently hold more than one directorship or sole managing directorship of companies having their registered office on French soil.
Contrary to the provisions of the first paragraph: - a natural person can concurrently act as a managing director or the sole managing director of another company
which is controlled, within the meaning of Article L. 233-16, by the company of which that natural person is a director or the sole managing director;
- a natural person who is a managing director of a company may also be a managing director or the sole managing director of another company, provided that its shares are not quoted on a regulated stock market.
Any natural person who is in breach of the provisions of the present Article shall resign from one of his directorships within three months of being appointed, or from the directorship in question within three months of the occurrence of the event which resulted in a condition laid down in the previous paragraph no longer being met. Upon expiry of that period, he shall be deemed to have resigned either from his new directorship or from the directorship which no longer meets the conditions laid down in the previous paragraph, whichever applies, and shall return the remuneration received. This shall not affect the validity of the deliberations in which he participated.
Article L225-68 (Act No. 2003-706 of 1 August 2003 Art. 117 I 2 Official Journal of 2 August 2003) (Act No. 2005-842 of 26 July 2005 Art. 7 II, Art. 11 II Official Journal of 27 July 2005)
The supervisory board permanently supervises the executive board's management of the company. The memorandum and articles of association may make execution of the latter's transactions subject to prior
approval from the supervisory board. However, the assignment of real property, the total or partial assignment of equity holdings, the provision of sureties, security, avals and guarantees shall require the supervisory board's approval as determined in a Conseil d'Etat decree unless the company is a banking or financial institution. The said decree also determines how any transaction lacking such approval may be raised against third parties.
Throughout the year, the supervisory board carries out the verifications and inspections it considers appropriate and may request sight of any document it considers necessary for the accomplishment of its mission.
The executive board presents a report to the supervisory board at least once each quarter. Following the close of each accounting period and within a time limit determined in a Conseil d'Etat decree, the
executive board also presents to it, for verification and inspection purposes, the documents referred to in the second paragraph of Article L225-100.
The supervisory board presents its observations on the executive board's report and the accounts for the period to the general meeting referred to in Article L225-100.
In companies that make public offerings, the chairman of the supervisory board describes the preparation and organisation of the board's work and the internal auditing procedures put in place by the company in a report attached to the report referred to in the previous paragraph and in Article L233-26
Article L225-69 (Law No 2001-420 of 15 May 2001 Article 104 (2) Official Gazette of 16 May 2001)
The Supervisory board shall consist of at least three members. The memorandum and articles of association shall fix the maximum number of members of the board, which shall be limited to eighteen.
Article L225-70 The memorandum and articles of association must stipulate an age limit for the exercise of the functions of a
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COMMERCIAL CODE member of the supervisory board, applicable either to all members of the supervisory board or to a specific percentage of them.
In the absence of any express provision in the memorandum and articles of association, the number of members of the supervisory board who have attained the age of seventy years must not exceed one third of the members of the supervisory board currently in office.
Any appointment made in breach of the provisions of the preceding sub-paragraph shall be void. In the absence of any express provisions in the memorandum and articles of association stipulating some other
procedure, where the limit fixed by the memorandum and articles of association or the law as to the age of members of the supervisory board is exceeded, the oldest member of the supervisory board shall be deemed to have resigned from their post.
Article L225-71 (Law No 2001-152 of 19 February 2001 Article 24 (3) and (4) and Article 25 (II) Official Gazette of 20 February 2001) (Law No 2001-1168 of 11 December 2001 Article 33 (III) Official Gazette of 12 December 2001) (Law No 2002-73 of 17 January 2002 Article 217 (3) and (4) Official Gazette of 18 January 2002)
If the report presented to the general meeting by the executive board pursuant to Article L. 225-102 establishes that the shares held by the company's staff and by the staff of affiliated companies within the meaning of Article L.225-180 represent more than 3% of the company's share capital, one or more members of the supervisory board shall be elected by the general meeting of shareholders on a proposal from the shareholders as provided for in Article L. 225-102 and as prescribed in the relevant decree. Those members shall be elected from among the employee-shareholders or, if appropriate, from among the employee-shareholders who are members of the supervisory board of a company investment trust which holds shares in the company. Such members are not counted when the minimum and maximum numbers of supervisory board members are determined pursuant to Article L. 225-69.
If an extraordinary general meeting is not held within eighteen months of the report being presented, any employee-shareholder may request the presiding judge, ruling on a summary basis, to direct the executive board, under pain of a coercive fine, to convene an extraordinary general meeting and submit draft resolutions to it aimed at amending the memorandum and memorandum and articles of association as provided for in the preceding paragraph and in the final paragraph of the present Article.
If the request is upheld, the coercive fine and the legal costs shall be paid by the board members. Companies whose supervisory board includes one or more members designated by the members of the supervisory
boards of company investment trusts representing the members, or one or more employees elected pursuant to the provisions of Article L. 225-79, are exempted from the obligations referred to in the first paragraph.
If an extraordinary general meeting is convened pursuant to the first paragraph, it also rules on a draft resolution to provide for the election of one or more members of the supervisory board by the staff of the company and of the direct or indirect subsidiaries having their registered office in France. If appropriate, these representatives are designated as provided for in Article 225-79.
Article L225-72 (Law No 2001-420 of 15 May 2001 Article 115 (4) Official Gazette of 16 May 2001)
Every member of the supervisory board must own such number of shares in the company as is determined by the memorandum and articles of association.
If, on the day of their appointment, a member of the supervisory board does not own the requisite number of shares or if, during their period of office, they shall cease to own the same, they shall be deemed to have resigned their post, unless they shall have remedied the said situation within a period of three months.
The provisions of the first sub-paragraph shall not apply to paid employees holding shares who are appointed as members of the supervisory board pursuant to Article L. 225-71.
Article L225-73 The auditors shall be responsible, on their own liability, for ensuring that the rules laid down in Article L225-72 are
duly observed and shall disclose any breach thereof in their report to the annual general meeting.
Article L225-74 No member of the supervisory board may be a member of the management.
Article L225-75 Members of the supervisory board shall be appointed by the inaugural general meeting or the routine shareholders’
meeting. In the circumstances specified in Article L225-16, they shall be designated in the memorandum and articles of association. Their terms of office shall be determined by the memorandum and articles of association, but may not exceed six years where they are appointed by the general meetings and three years where they are appointed in the memorandum and articles of association.
They shall be eligible for re-election unless otherwise stipulated by the memorandum and articles of association. They may be dismissed by the routine shareholders’ meeting at any time.
Any appointment made in breach of the foregoing rules shall be void except any that may be made in the circumstances specified in Article L. 225-78.
Article L225-76 A legal person may be appointed on to the supervisory board. On appointment, it must designate a permanent
representative who shall be subject to the same conditions and obligations and shall incur the same civil and criminal
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COMMERCIAL CODE liabilities as if they were a member of the Board in their own name, without prejudice to the joint and several liability of the legal person they represent.
If a legal person dismisses its representative, it must simultaneously replace them.
Article 225-77 (Law No 2001-420 of 15 May 2001 Article 110 (5) Official Gazette of 16 May 2001) (Law No 2002-1303 of 29 October 2002 Article 1 (IV) Official Gazette of 30 October 2002)
No natural person shall concurrently be a member of the supervisory board of more than five limited companies having their registered office on French soil.
Contrary to the provisions of the first paragraph, this shall not apply to supervisory board membership or directorships of companies which are controlled, within the meaning of Article L. 233-16, by the company on whose supervisory board that natural person sits.
For the purposes of the present Article, seats on the supervisory board of companies whose shares are not quoted on a regulated stock market, within the meaning of Article L. 233-16, that are occupied by a single company count as one directorship, subject to the number of such directorships held not exceeding five.
Any natural person who is in breach of the provisions of the present Article shall resign from one of his directorships within three months of being appointed, or from the directorship in question within three months of the occurrence of the event which resulted in a condition laid down in the previous paragraph no longer being met. Upon expiry of that period, he shall be deemed to have resigned either from his new directorship or from the directorship which no longer meets the conditions laid down in the previous paragraph, whichever applies, and shall return the remuneration received. This shall not affect the validity of the deliberations in which he participated.
Article L225-78 Should one or more vacancies on the supervisory board occur through death or resignation, the Board may make
temporary appointments between two general meetings. Where the number of members of the supervisory board shall have fallen below the legal minimum, the
management must immediately call an routine shareholders’ meeting to complete the membership of the supervisory board.
Where the number members of the supervisory board shall have fallen below the minimum required by the memorandum and articles of association, although not below the legal minimum, the supervisory board must make temporary appointments with the object of completing the membership of the Board within three months of the date on which the vacancy occurs.
Appointments made by the board pursuant to the first and third sub-paragraphs above shall be subject to ratification by the next routine shareholders’ meeting. If the appointments are not so ratified, any decisions previously taken and acts previously effected by the board shall nevertheless remain valid.
If the board shall neglect to make the requisite appointments or if the meeting shall not be called, any interested party may bring a legal action for the appointment of a representative to be responsible for calling a general meeting, with the object of making or ratifying the appointments referred to in the third sub-paragraph.
Article L225-79 It may be stipulated in the memorandum and articles of association that, apart from those members whose number
and method of appointment are specified in Articles L.225-69 and L.225-75, the supervisory board shall include members elected either by the company's personnel or by the personnel of the company and those of its direct or indirect subsidiaries whose registered offices are situated on French territory.
The number of members of the supervisory board elected by the employees may not exceed four, nor a third of the number of other members. Where the number of members elected by the employees is two or more, engineers, executives and employees of similar rank shall have at least one seat.
Members of the supervisory board elected by the employees shall not be taken into account when determining the minimum and maximum number of members stipulated in Article L.225-69.
Article L225-80 Conditions relating to eligibility, the electorate, the composition of electing bodies, voting methods, objections, terms
and conditions of office, dismissal, the protection of contracts of employment and the replacement of members of the supervisory board elected by the employees shall be fixed in accordance with the rules defined in Articles L.225-28 to L.225-34.
Article L225-81 The supervisory board shall elect from among its own members a chairman and a deputy chairman who shall be
responsible for calling meetings and conducting its discussions. It shall determine their remuneration if it sees fit. The chairman and deputy chairman of the supervisory board must be natural persons, failing which their
appointment shall be void. They shall hold office throughout the term of office of the supervisory board.
Article L225-82 (Act No. 2001-420 of 15 May 2001 Art. 109 2 Official Journal of 16 May 2001) (Act No. 2005-842 of 26 July 2005 Art. 5 II Official Journal of 27 July 2005)
The Supervisory Board may validly deliberate only if at least half of its members are present. Unless the memorandum and articles of association require a larger majority, the decisions are taken on a majority
vote of the members present or represented.
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COMMERCIAL CODE Unless the board is convened to deal with matters referred to in Articles L232-1 and L233-16, and barring any
contrary provision in the memorandum and articles of association, the internal regulations may provide for supervisory board members who participate in the meeting via videoconferencing or via a telecommunications medium which permits their identification and guarantees their effective participation to be deemed to be present for calculation of the quorum and the majority. The nature of, and implementing regulations for, such media are determined in a Conseil d'Etat decree. The memorandum and articles of association may limit the nature of the decisions which may be made at such meetings and provide for a right of objection for a given number of supervisory board members.
Barring any contrary provision in the memorandum and articles of association, the chairman of the meeting has a casting vote in the event of a split vote.
Article L225-83 (Law No 2001-420 of 15 May 2001, Article 117 II, Official Gazette of 16 May 2001)
The general meeting may allocate to members of the supervisory board, in remuneration for their work, by way of attendance fees, a fixed annual sum to be determined by the said meeting, which shall not be bound by the provisions of the memorandum and articles of association or previous decisions. The amount of the said sum shall be entered in the accounts as operating expenses. The distribution thereof among the members of the supervisory board shall be fixed by the latter.
Article L225-84 The supervisory board may allocate extraordinary payments in remuneration of duties or mandates entrusted to
members of the board. In any such case, the said payments, which shall be entered in the accounts as operating expenses, shall be subject to the provisions of Articles L.225-86 to L.225-90.
Article L225-85 Members of the supervisory board shall not receive any remuneration, whether permanent or otherwise, from the
company, other than that provided in Articles L.225-81, L.225-83 and L.3225-84, and, if appropriate, those payable under a contract of employment for a post actually held.
The number of members of the supervisory board bound to the company by a contract of employment must not exceed a third of the members in office at any given time. Nevertheless, members of the supervisory board elected in accordance with Articles L.225-79 and L.225-80 and those appointed
in accordance with the provisions of Article L.225-71 shall not be counted when determining the said number. Any clause to the contrary in the memorandum and articles of association shall be deemed non-existent and any
decision to the contrary shall be void.
Article L225-86 (Law No 2001-420 of 15 May 2001 111 (2) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 123 (I) (6) Official Gazette of 2 August 2003)
Any agreement entered into, either directly or through an intermediary, between the company and a member of the executive board or of the supervisory board, one of its shareholders holding a fraction of the voting rights greater than 10% or, in the case of a corporate shareholder, the company which controls it within the meaning of Article L. 233-3, must be subject to the prior consent of the supervisory board.
The same applies to agreements in which a person referred to in the previous paragraph has an indirect interest. Agreements entered into between the company and another firm are also subject to prior consent if a member of
the company's executive board or supervisory board is the owner, an indefinitely liable partner, a manager, a director or a member of that firm's supervisory board or, more generally, is in any way involved in its management.
Article L225-87 (Law No 2001-420 of 15 May 2001 Article 111 (7) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 123 (I) (2) Official Gazette of 2 August 2003)
The provisions of Article 225-86 are not applicable to agreements relating to current operations entered into under normal terms and conditions.
Such agreements are nevertheless made known to the chairman of the supervisory board by the interested party unless they are of no significance to any party, given their objective or their financial implications. A list of such agreements and their objectives is sent to the members of the supervisory board and to the auditors by the chairman.
Article L225-88 (Law No 2001-420 of 15 May 2001, Article 111(9), Official Gazette of 16 May 2001)
The interested party must inform the supervisory board as soon as they become aware of an agreement to which Article L.225-86 applies. If they sit as a member of the supervisory board, they may not take part in the vote on the consent requested.
The chairman of the supervisory board shall notify the auditors of all agreements approved and shall submit the same to the general meeting for approval.
The auditors shall present a special report on the said agreements to the meeting, which shall pass a resolution regarding the said report.
The interested party shall not be entitled to take part in the vote and their shares shall not be taken into account when calculating the quorum and the majority.
Article L225-89
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COMMERCIAL CODE (Law No 2001-420 of 15 May 2001, Article 111(12), Official Gazette of 16 May 2001)
Whether or not approved by the meeting, agreements shall have legal effect so far as third parties are concerned, unless the annulled for fraud.
Even where there is no fraud, the interested party, and other members of the management if appropriate, may be held liable for any consequences of unapproved agreements that are damaging to the company.
Article L225-90 Without prejudice to the liability of the interested party, any such agreements as are referred to in Article L.225-86, if
entered into without the prior consent of the supervisory board, may be annulled if they have had damaging effects on the company.
An action for annulment must be brought within three years of the date of the agreement. Nevertheless, if the agreement was concealed, time shall begin to run with effect from the date on which its existence became known.
The annulment of such an agreement may be covered by a vote of the general meeting acting on a special auditors' report stating the reasons why the consent procedure was not followed. The fourth sub-paragraph of Article L.225-88 shall apply.
Article L225-91 It shall be prohibited for members of the management and non-corporate members of the supervisory board to
obtain loans from the company in any form, or overdraft facilities, on a current account or otherwise, or to obtain any pledge of security or guarantee from the company for any obligations they may contract to third parties. Any agreement to do so shall be void.
This prohibition shall apply to permanent representatives of corporate members of the supervisory board. It shall likewise apply to the spouses, ascendants and descendants of persons referred to in this Article, or any intermediary.
Nevertheless, where the company operates a banking or financial institution, the prohibition shall not apply to ordinary transactions concluded on normal terms and conditions in the course of its business..
The prohibition shall not apply to loans granted by the company to members of the supervisory board elected by the employees, pursuant to Article 313-1 of the Building and Housing Code.
Article L225-92 Members of the management and the supervisory board, and likewise any person called to attend meetings of the
said boards, shall required to maintain the secrecy of any information of a confidential nature given as such by the chairman.
Article L225-93 Should proceedings be commenced for a Court order for financial reorganisation on insolvency or liquidation subject
to judicial supervision, pursuant to Title II of Book VI, the persons referred to in the said provisions may be held liable for the debts of the company and shall be subject to the relevant prohibitions and prohibition, as laid down by the said provisions.
Article L225-79-1 (inserted by Act No. 2005-842 of 26 July 2005 Art. 8 I Official Journal of 27 July 2005)
In companies whose securities are admitted to trading on a regulated market, if a person bound by a contract of employment to the company or to any other controlled company or controlling company within the meaning of II and III of Article L233-16 is appointed as a member of the executive board, the said contract's provisions, if any, relating to elements of remuneration, compensation or benefits payable or likely to become payable on account of those functions ceasing or changing, or thereafter, shall be subject to the provisions of Articles L225-86 and L225-88 to L225-90.
NB: Act No. 2005-842 of 26 July 2005 Art. 8 II: the provisions of Article 8 I are applicable to agreements entered into with effect from 1 May 2005.
Article L225-90-1 (inserted by Act No. 2005-842 of 26 July 2005 Art. 8 I Official Journal of 27 July 2005)
In companies whose securities are admitted to trading on a regulated market, commitments made to executive board members, by the company itself or by any controlled or controlling company within the meaning of II and III of Article L233-16, relating to elements of remuneration, compensation or benefits payable or likely to become payable on account of their functions ceasing or changing, or thereafter, are subject to the provisions of Articles L225-86 and L225-88 to L225-90.
NB: Act No. 2005-842 of 26 July 2005 Art. 8 II: the provisions of Article 8 I are applicable to agreements entered into with effect from 1 May 2005.
Subsection 3 Provisions common to managing agents of public limited companies Articles L225-94 to
L225-95-1
Article L225-94 (Law No 2001-420 of 15 May 2001 Article 110 (6) Official Gazette of 16 May 2001) (Law No 2002-1303 of 29 October 2002 Article 1 (V) Official Gazette of 30 October 2002)
The limitation of the number of seats on the board of directors or the supervisory board that any one natural person can occupy concurrently by virtue of Articles L. 225-212 L. 225-77 is applicable to the concurrent holding of seats on
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COMMERCIAL CODE both the board of directors and the supervisory board.
For the purposes of Articles L. 225-54-1 and L. 225-67, it is permissible for a natural person to hold the general managership of one company and that of another company which is controlled by that company within the meaning of Article L. 233-16.
Article L225-94-1 (Law No 2001-420 of 15 May 2001 Article 110 (7) Official Gazette of 16 May 2001) (Law No 2002-1303 of 29 October 2002 Article 1 (VI) Official Gazette of 30 October 2002) (Law No 2003-706 of 1 August 2003 Article 131 (1) Official Gazette of 2 August 2003)
Without prejudice to the provisions of Articles L. 225-21, L. 225-54-1, L. 225-67, L. 225-77 and L. 225-94, no natural person shall concurrently hold more than five posts as managing director, director, sole managing director or member of the supervisory board of limited companies having their registered office on French soil. For the purposes of these provisions, the assumption of general management duties by a director counts as a single post.
Contrary to the above provisions, this shall not apply to directorships, or supervisory board membership, of companies which are controlled, within the meaning of Article L. 233-16, by the company in which a post referred to in the first paragraph is occupied. (1)
Any natural person who is in breach of the provisions of the present Article shall resign from one of his directorships within three months of being appointed, or from the directorship in question within three months of the occurrence of the event which resulted in a condition laid down in the previous paragraph no longer being met. Upon expiry of that period, he shall be deemed to have resigned either from his new directorship or from the directorship which no longer meets the conditions laid down in the previous paragraph, whichever applies, and shall return the remuneration received. This shall not affect the validity of the deliberations in which he participated.
NB (1): These provisions enter into force on 16 November 2002.
Article L225-95 (Law No 2001-420 of 15 May 2000 Article 104 (3) Official Gazette of 16 May 2001)
In the event of a merger of public limited companies, the number of members of the board of directors or supervisory board, as the case may be, may exceed the total of eighteen specified in Articles L.225-17 and L.225-69, for a period of three years from the date of the merger, as laid down in Article L.236-4, but may not exceed twenty-four.
Article L225-95-1 (Act No. 2001-420 of 15 May 2001 Art. 110 8 Official Journal of 16 May 2001) (Act No. 2002-1303 of 29 October 2002 Art. 2 Official Journal of 30 October 2002) (Act No. 2003-706 of 1 August 2003 Art. 63 V Official Journal of 2 August 2003)
Notwithstanding the provisions of Articles L225-21, L225-77 and L225-94-1, a remit as a permanent representative of a venture capital company referred to in Article 1 of Act No. 85-695 of 11 July 1985 containing various provisions of an economic and financial nature, or of an innovation venture capital company referred to in III (B) of Article 4 of Act No. 72-650 of 11 July 1972 containing various provisions of an economic and financial nature, or of a management company authorised to manage open-end investment companies governed by paragraph 1 of Subsection 6 of Section 1 of Chapter IV of Part I of Book II and Articles L214-36 and L214-41 of the Monetary and Financial Code, are not taken into account.
If the conditions stipulated in the present article are no longer met, any natural person must resign from the functions which do not meet the requirements of Articles L225-21, L225-77 and L225-94-1 within three months. Upon expiry of that period, he shall be deemed to no longer represent the legal entity and must return the remuneration received. This shall not affect the validity of the deliberations he participated in.
Notwithstanding Articles L225-21, L225-54-1, L225-67 and L225-94-1, remits as chairman, general manager, sole general manager, executive board member or director of a local semipublic limited company performed by a representative of a territorial authority or of a group of territorial authorities are not taken into account for application of the rules relating to plurality of offices.
SECTION III Shareholders’ meetings Articles L225-96 to
L225-126
Article L225-96 (Act No. 2005-842 of 26 July 2005 Art. 6 I Official Journal of 27 July 2005)
Only an extraordinary General Meeting is authorised to amend any provision of the articles of association. Any clause to the contrary is deemed unwritten. It may nevertheless not increase the shareholders' commitments, without prejudice to transactions resulting from a properly executed share consolidation.
It may validly deliberate when first convened only if the shareholders present or represented hold at least one quarter of the voting shares and, if reconvened, one fifth of the voting shares. Failing this, the second meeting may be postponed to a date not later than two months after the date originally scheduled. In companies which do not make public offerings, the memorandum and articles of association may require higher quorums.
It rules on a majority of two thirds of the votes held by the shareholders present or represented.
Article L225-97 An special shareholders’ meeting may change the nationality of the company, provided that the new host country
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COMMERCIAL CODE shall have entered into a special agreement with France permitting the company to acquire its nationality and to transfer its registered office to the new host country's territory, while retaining its legal personality.
Article L225-98 (Act No. 2005-842 of 26 July 2005 Art. 6 II Official Journal of 27 July 2005)
The ordinary general meeting makes all decisions other than those referred to in Articles L225-96 and L225-97. It may validly deliberate when first convened only if the shareholders present or represented hold at least one fifth of
the voting shares. In companies which do not make public offerings, the memorandum and articles of association may require a higher quorum. If it is reconvened, no quorum is required.
It rules on a majority of the votes held by the shareholders present or represented.
Article L225-99 (Act No. 2005-842 of 26 July 2005 Art. 6 III Official Journal of 27 July 2005)
The holders of shares in a given category attend special meetings. A decision to vary the rights relating to a share category taken at a general meeting is not final until it has been
approved by that category's special meeting of shareholders. Special meetings may only validly deliberate when first convened if the shareholders present or represented hold at
least one third of the voting shares whose rights are to be varied and, if reconvened, one fifth of those shares. Failing this, the second meeting may be postponed to a date not later than two months after the date originally scheduled. In companies which do not make public offerings, the memorandum and articles of association may require higher quorums.
They rule as stipulated in the third paragraph of Article L225-96.
Article L225-100 (Act No. 2001-420 of 15 May 2001 Art. 118 Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 I Official Journal of 26 June 2004) (Order No. 2004-1382 of 20 December 2004 Art. 3 Official Journal of 22 December 2004)
An ordinary general meeting is held at least once each year within six months of the close of the financial year, without prejudice to any extension of that time limit by a court decision.
The board of directors or the executive board presents its report and the annual accounts to the meeting and also, where applicable, the consolidated accounts and the management report relating thereto.
The said report includes an objective and exhaustive analysis of the company's business development, results and financial position, and in particular its borrowings relative to the volume and complexity of the business. To the extent necessary for an understanding of the company's business development, results or position, and independently of the key performance indicators of a financial nature which must be included in the report by virtue of other provisions of the present code, the analysis includes, where appropriate, the key performance indicators of a non-financial nature which relate to the company's specific business, such as information pertaining to environmental issues and personnel matters.
The report also includes a description of the main risks and uncertainties the company faces. The analysis referred to in the third paragraph contains, where applicable, references to the figures shown in the
annual accounts and additional explanations relating thereto. The report also contains indications concerning the company's use of financial instruments, when this is relevant for
an evaluation of its assets, its liabilities, its financial position and its profits or losses. These indications relate to the company's objectives and policy in regard to financial risk management, including its policy on the hedging of each main transaction category envisaged for which hedge accounting is used. They also relate to the company's exposure to price, credit, liquidity and cash-flow risks.
A summary table of the powers granted to the board of directors or the executive board by the general meeting of shareholders in connection with capital increases pursuant to Articles L. 225-129-1 and L. 225-129-2 is attached to the said report. The table shows the use made of those powers during the financial year.
In their report, the auditors comment on the fulfilment of the task entrusted to them by Article L. 225-235. The meeting deliberates and rules on all matters relating to the annual accounts and, where applicable, the
consolidated accounts, for the previous financial year. It exercises the powers vested in it, inter alia, by Article L. 225-18, the fourth paragraph of Article L. 225-24, the third
paragraph of Article L. 225-40, the third paragraph of Article L. 225-42 and Article L. 225-45, or, where applicable, Article L. 225-75, the fourth paragraph of Article L. 225-78, Article L. 225-83, the third paragraph of Article L. 225-88 and the third paragraph of Article L. 225-90.
NB: Order 2004-1382 2004-12-20 Art. 12: The provisions of the present order shall apply with effect from the first financial year commenced on or after 1 January 2005.
Article L225-100-1 (inserted by Order No. 2004-1382 of 20 December 2004 Art. 4 Official Journal of 22 December 2004)
The third to sixth paragraphs of Article L. 225-100 do not apply to companies which, at the close of the financial year, do not exceed the figures determined by decree for two of the following criteria: the balance sheet total, the net amount of their turnover or the average number of permanent staff employed during the financial year. The present paragraph does not apply to companies whose financial instruments referred to in 1 or 2 of I of Article L. 211-1 of the Monetary and Financial Code are admitted to trading on a regulated market.
Companies which, at the close of the financial year, do not exceed the figures determined by decree for two of the
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COMMERCIAL CODE following criteria: the balance sheet total, the net amount of their turnover or the average number of permanent staff employed during the financial year, are not required to provide the information of a non-financial nature referred to in the last sentence of the third paragraph of Article L. 225-100. The present paragraph does not apply to companies whose financial instruments referred to in 1 or 2 of I of Article L. 211-1 of the Monetary and Financial Code are admitted to trading on a regulated market.
NB: Order 2004-1382 2004-12-20 Art. 12: The provisions of the present order shall apply with effect from the first financial year commenced on or after 1 January 2005.
Article L225-100-2 (inserted by Order No. 2004-1382 of 20 December 2004 Art. 4 Official Journal of 22 December 2004)
When the company draws up consolidated accounts pursuant to Article L. 233-16, the consolidated management report includes an objective and exhaustive analysis of the business trend, of the results and of the financial position of all the companies included in the consolidation, and in particular their borrowings relative to the volume and complexity of the business. To the extent necessary for an understanding of the companies' business development, results or situation, the analysis increases the key performance indicators of a nature financial and, where applicable, non-financial nature which relate to the companies' specific business, such as information pertaining to environmental issues and personnel matters.
The report also includes a description of the main risks and uncertainties faced by all the companies included in the consolidation.
The analysis referred to in the first paragraph contains, where applicable, references to the figures shown in the consolidated accounts and additional explanations relating thereto.
The report also contains indications concerning the company's use of financial instruments, when this is relevant for an evaluation of its assets, its liabilities, its financial position and its profits or losses. These indications relate to the company's objectives and policy in regard to financial risk management, including its policy on the hedging of each main transaction category envisaged for which hedge accounting is used. They also relate to the company's exposure to price, credit, liquidity and cash-flow risks.
NB: Order 2004-1382 2004-12-20 Art. 12: The provisions of the present order shall apply with effect from the first financial year commenced on or after 1 January 2005.
Article L225-101 Where, within two years of registration, a company acquires an asset belonging to a shareholder which is worth at
least one-tenth of its share capital, a valuer shall be appointed by a Court order to value the asset in question on his own liability, on an application by the chairman of the board of directors or the management, as the case may be. The appointment of the said valuer shall be subject to the incompatibility rules set out in Article L.225-224.
The valuer's report shall be made available to the shareholders. The routine shareholders’ meeting shall rule on the valuation of the asset, failing which the acquisition shall be void. The seller shall not have the right to vote either on its own behalf or as a representative.
The provisions of this Article shall not apply where the acquisition is effected on the Stock Exchange, under the supervision of a judicial authority or in connection with the company's ordinary business, concluded on normal terms and conditions.
Article L225-102 (Law No 2001-152 of 19 February 2001 Article 26 Official Gazette of 20 February 2001)
The report submitted to the routine meeting by the board of directors or the management, as the case may be, shall give an annual account of the number of shares of the company's capital held by employees at the last day of the financial year and shall establish the proportion of the share capital represented by shares held by company personnel and personnel of companies associated with it for the purposes of Article L.225-180 under a company savings scheme as provided for by Articles L.443-1 to L.443-9 of the Employment Code and by employees and former employees in connection with company investment trusts governed by Chapter III of Law No 88-1201 of 23 December 1988 relating to security investment trusts and creating debt investment trusts. Shares directly held by employees during the periods of inaccessibility specified in Articles L.225-194 and L.225-197, in Article 11 of Law No 86-912 of 6 August 1986 relating to terms and conditions of privatisation and Article 442-7 of the Employment Code shall also be taken into account.
Shares acquired by employees in connection with the buy-out of a company by its employees, as provided for by Law No 84-578 of 9 July 1984 on the development of economic initiatives, or by employees of a production workers' co-operative within the meaning of Law No 78-763 of 19 July 1978 laying down rules for production co-operatives shall not be taken into account when evaluating the proportion of capital as mentioned in the preceding sub-paragraph.
Where the Annual Report does not contain the information referred to in the first sub-paragraph, any interested party may make an interlocutory application to the Presiding Judge of the Court for an order to the effect that the board of directors or the management, as the case may be, must disclose the said information, subject to a daily penalty if it fails to do so.
Where the application is granted, any penalty and the expenses of the proceedings shall be payable by the directors or members of the management, as the case may be.
Article L225-102-1 (Act No. 2001-420 of 15 May 2001 Art. 116 I Official Journal of 16 May 2001) (Act No. 2003-706 of 1 August 2003 Art. 138 Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 51 II Official Journal of 26 June 2004)
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COMMERCIAL CODE (Act No. 2005-842 of 26 July 2005 Art. 9 I Official Journal of 27 July 2005)
The report referred to in Article L225-102 itemises the total remuneration and benefits of all kinds paid to each company officer during the accounting period including any allotments of capital securities, debt instruments or securities giving access to the capital or giving entitlement to an allotment of debt instruments of a company or companies referred to in Articles L228-13 and L228-93.
It also indicates the amount of the remuneration and benefits of all kinds which each company officer received from controlled companies within the meaning of Article L233-16 or from the company which controls the company in which the duties are performed within the meaning of that same article during the accounting period.
The said report also describes and distinguishes between the fixed, variable and exceptional elements that make up that remuneration and those benefits as well as the criteria used to calculate them or the circumstances giving rise to them. It likewise indicates the commitments of all kinds made by the company in favour of the company officers relating to elements of remuneration, compensation or benefits payable or likely to be payable on account of them taking up or ceasing their functions or of their functions changing, or subsequently thereto. The information provided in this regard must specify the method used to determine those commitments. Barring arrangements made in good faith, payments and commitments made in violation of the provisions of the present paragraph may be cancelled.
It also includes a list of all the remits and functions performed in each company by each company officer during the accounting period.
It also includes a list of information as laid down in a Conseil d'Etat decree concerning the manner in which the company deals with the social and environmental consequences of its business. The present paragraph does not apply to companies whose securities are not admitted to trading on a regulated market.
The provisions of the last two paragraphs of Article L225-102 apply to the information referred to in the present article.
The provisions of the first to third paragraphs do not apply to companies whose securities are not admitted to trading on a regulated market and which are not controlled within the meaning of Article L233-16 by a company whose securities are admitted to trading on a regulated market. Moreover, these provisions do not apply to company officers who do not hold any remit in a company whose securities are admitted to trading on a regulated market.
Article L225-102-2 (inserted by Law No. 2003-699 of 30 July 2003 Article 23 Official Gazette of 31 July 2003)
For companies which operate at least one installation of a type indicated on the list provided in IV of Article L. 515-8 of the Environmental Code, the report referred to in Article L. 225-102 of the present code shall:
- provide details of the technological accident risk-prevention policy the company applies; - explain how the company has covered its civil liability in regard to property and persons which the use of such
installations gives rise to; - specify the measures the company has put in place to ensure proper compensation of the victims in the event of it
incurring liability for a technological accident.
Article L225-103 (Law No 2001-420 of 15 May 2001 Article 114 (2) Official Gazette of 16 May 2001)
I.- The general meeting shall be convened by the board of directors or the management, as the case may be. II.- If not so convened, the general meeting may also be convened: 1. By the auditors; 2. By a representative appointed by the Court, on an application either by any interested party, in the event of
emergency, or by one or more shareholders who together hold more than 5% of the share capital, or by an association of shareholders in accordance with the conditions laid down in Article L.225-120;
3. By the liquidators; 4. By the majority shareholders in terms of capital or voting rights after a public take-over bid or exchange offer or
the transfer of a controlling block of shares. III.- In companies subject to Articles L.225-57 to L.225-93, the general meeting may be convened by the supervisory
board. IV.- The foregoing provisions shall be applicable to special meetings. Shareholders applying for the appointment of
a judicial representative must hold at least one tenth of the shares of the relevant class. V. Unless otherwise provided by the memorandum and articles of association, shareholders' meetings shall be held
at the registered office or anywhere else in the same department.
Article L225-104 Shareholders' meetings shall be convened in the manner and subject to time limits to be laid down by an Order
approved by the Conseil d'Etat. Any meeting may be cancelled if incorrectly convened. An application for cancellation shall not, however, be admissible where all the shareholders were present or represented.
Article L225-105 (Law No 2003-706 of 1 August 2003 Article 119 Official Gazette of 2 August 2003)
The agenda for general meetings is determined by the convener. However, one or more shareholders representing at least 5% of the capital, or a shareholders' association which
meets the conditions laid down in Article L. 225-120, are entitled to request the inclusion of draft resolutions on the agenda. Such draft resolutions are included on the agenda for the meeting and brought to the knowledge of the
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COMMERCIAL CODE shareholders in the manner determined in a Conseil d'Etat decree. The said decree may reduce the percentage imposed by the present paragraph if the share capital exceeds a level specified therein.
The meeting cannot deliberate on an item which is not on the agenda. It may nevertheless remove one or more directors or supervisory board members from office and replace them, in any circumstances.
The agenda for the meeting cannot be amended when a second notice to attend is sent out. When the meeting is called upon to deliberate on changes to the company's financial or legal organisation in
respect of which the works council has been consulted pursuant to Article L. 432-1 of the Labour Code, that body's opinion is conveyed to it.
Article L225-106 (Law No 2001-152 of 19 February 2001 Article 27 Official Gazette of 20 February 2001)
A shareholder may be represented by another shareholder or by his or her spouse. Any shareholder may receive powers issued by other shareholders to represent them at a meeting, without limits
other than those imposed by the law or the memorandum and articles of association fixing the maximum number of votes a single person may hold either on his own behalf or as a proxy.
Before every general shareholders' meeting,, the chairman of the board of directors or the management, as the case may be, may organise a consultation with the shareholders mentioned in Article L.225-102 to enable them to appoint one or more proxies to represent them at the meeting in accordance with the provisions of this Article.
Such a consultation shall be obligatory where, following the amendment of the memorandum and articles of association pursuant to Article L.225-23 or Article L.225-71, the routine shareholders’ meeting is required to appoint to the board of directors or the supervisory board, as the case may be, one or more shareholder employees or members of the supervisory board of the company investment trusts that holds the company's shares.
Such a consultation shall also be obligatory where an special shareholders’ meeting is required to take a decision on an amendment to the memorandum and articles of association pursuant to Article L.225-23 or Article L.225-71.
Any clauses that conflict with the provisions of the preceding sub-paragraphs shall be deemed non-existent. In the case of any power of representation given by a shareholder without naming a proxy, the chairman of the
general meeting shall issue a vote in favour of adopting an draft resolutions submitted or approved by the board of directors or the management, as the case may be, and a vote against adopting any other draft resolutions. To issue any other vote, the shareholder must appoint a proxy who agrees to vote in the manner indicated by his principal.
Article L225-107 (Law No 2001-420 of 15 May 2001 Article 115 (1) Official Gazette of 16 May 2001)
I. Any shareholder may vote by post, using a form the wording of which shall be fixed by an Order approved by the Conseil d'Etat. Any provisions to the contrary contained in the memorandum and articles of association shall be deemed non-existent.
When calculating the quorum, only forms received by the company before the meeting shall be taken into account, on conditions to be laid down by an Order approved by the Conseil d'Etat. Forms not indicating any vote or expressing an abstention shall be considered negative votes.
II. If the memorandum and articles of association so provide, shareholders participating in a meeting by video-conferencing or means of telecommunication that enable them to be identified, the nature and conditions of which shall be determined by an Order approved by the Conseil d'Etat, shall be deemed to be present at the said meeting for the purposes of calculating the quorum and majority.
Article L225-107-1 (Act No. 2001-420 of 15 May 2001 Art. 119 1 Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 III Official Journal of 26 June 2004)
The owners of securities referred to in the seventh paragraph of Article L. 228-1 may arrange to be represented by a registered intermediary as provided for in the said article.
Article L225-108 The board of directors or management, as the case may be, must send or make available to the shareholders the
necessary documents to enable them to make decisions based on a knowledge of the facts and arrive at an informed judgment on the management and progress of the company and its business.
The nature of the said documents and the conditions upon which they are sent or made available to shareholders shall be determined by an Order approved by the Conseil d'Etat.
From the date of the delivery of documents specified in the first sub-paragraph, any shareholder shall be entitled to submit written questions, to which the board of directors or the management, as the case may be, shall required to reply in the course of the meeting.
Article L225-109 The chairman, managing directors and directors of a company, and any natural persons or legal persons exercising
the functions of a director or member of the supervisory board, and also permanent representatives of legal persons exercising the said functions, shall be required, upon conditions to be determined by an Order approved by the Conseil d'Etat, to register or deposit any shares belonging to themselves or their non-emancipated minor children that have been issued by the company itself, by its subsidiaries or parent company or by other subsidiaries of its parent company, where the said shares are admitted to trading on a regulated market.
Spouses of the persons mentioned in the preceding sub-paragraph shall (unless judicially separated) be subject to
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COMMERCIAL CODE the same obligation.
Article L225-110 Where shares are subject to a life interest, voting rights attached thereto shall belong to the beneficiary thereof at
routine shareholders’ meetings and to the remainderman at special shareholders’ meetings. Joint owners of undivided shares shall be represented at routine shareholders’ meetings by one of them or by a
single proxy. In the event of disagreement, the proxy shall be appointed by the Court at the request of the joint owner taking the initiative.
Voting rights shall be exercised by the owner in the case of shares pledged by way of security. To that end, the pledgee shall, at the debtor's request, place the shares he holds as security on deposit, on conditions and within time limits to be fixed by an Order approved by the Conseil d'Etat.
The memorandum and articles of association may create exceptions to the rule contained in the first sub-paragraph hereof.
Article L225-111 The company shall not be entitled to voting rights attached to shares it shall itself have subscribed, acquired or
taken as a pledge. Such shares shall not be taken into account when calculating the quorum.
Article L225-113 Any shareholder may take part in special shareholders’ meetings and any shareholder holding shares of the type
referred to in Article L225-99 may take part in special meetings. Any clause to the contrary shall be deemed non-existent.
Article L225-114 An attendance sheet, the wording of which shall be determined by an Order approved by the Conseil d'Etat, shall be
kept at every meeting.
Article L225-115 (Act No. 2001-420 of 15 May 2001 Art. 111 6 Official Journal of 16 May 2001) (Act No. 2003-706 of 1 August 2003 Art. 123 I 3 Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 51 VI Official Journal of 26 June 2004)
Any shareholder is entitled, under the conditions and subject to the time limits determined in a Conseil d'Etat decree, to discovery of:
1. The inventory, the annual accounts and the list of directors or members of the executive board and the supervisory board, and, where applicable, the consolidated accounts;
2. The reports of the board of directors or the executive board and the supervisory board, as applicable, and the auditors, which shall be presented to the meeting;
3. Where applicable, the text of, and the objects and reasons for, the proposed resolutions, as well as information concerning candidates for the board of directors or the supervisory board, whichever applies;
4. The total amount, certified as accurate by the auditors, of the remuneration paid to the highest-paid persons, the number of such persons being ten or five depending on whether or not the workforce exceeds two hundred employees;
5. The total amount, certified as accurate by the auditors, of the payments made pursuant to 1 and 4 of Article 238 bis of the General Tax Code, as well as a list of the registered shares under sponsorship and the registered shares under patronage;
6. A list of the agreements relating to normal business entered into under normal terms and conditions, and their objects, drawn up pursuant to Articles L. 225-39 and L. 225-87.
Article L225-116 Before any general meeting is held, every shareholder shall be entitled, subject to conditions and time limits to be
determined by an Order approved by the Conseil d'Etat, to obtain the disclosure of a list of shareholders.
Article L225-117 Every shareholder shall be entitled at any time to obtain the disclosure of the documents referred to in Article
L.225-115 relating to the last three financial years, and the minutes and attendance sheets of meetings held during the said last three years.
Article L225-118 The right to disclosure of documents, provided in Articles L.225-115, L.225-116 and L.225- 117, shall be equally enjoyed by each joint owner in the case of undivided shares, and the remainderman and the
beneficiary in the case of shares subject to a life interest.
Article L225-120 (Order No 2000-916 of 19 September 2000 Article 4 and Annex II Official Gazette of 22 September 2000, in force on 1 January 2002)
I.- In companies whose shares are admitted to trading on a regulated stock market, shareholders whose shares have been registered for at least two years and who hold at least 5% of the voting rights may form associations to represent their interests within the company. In order to exercise the rights to which they are entitled under Articles L225-103, L225-105, L225-230, L225-231, L225-232, L225-233 and L225-252, such associations must have notified the company and the Commission des Operations de Bourse [Securities and Investments Board] of their legal status.
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COMMERCIAL CODE Where, however, the company's capital exceeds 5,000,000 F, the share of voting rights to be represented pursuant
to the preceding paragraph is reduced according to the number of the voting rights relating to the capital, as follows: 1. 4% over 750,000 euros and up to 4,500,000 euros; 2. 3% over 4,500,000 euros and up to 7,500,000 euros; 3. 2% over 7,500,000 euros and up to 15,000,000 euros; 4. 1% over 15,000,000 euros.
Article L225-121 Decisions taken by meetings in breach of Articles L.225-96, L.225-97, L.225-98, the third and fourth sub-paragraphs
of Article L.225-99, the second sub-paragraph of Article L.225-100 and Articles L.225-105 and L.225-114 shall be void. In the event of breach of the provisions of Articles L.225-115 and L.225-116 or their implementing order, the
meeting may be annulled.
Article L225-122 I.- Subject to the provisions of Articles L.225-10, L.225-123, L.225-124, L.225-125 and L.225-126, voting rights
attached to capital or dividend shares shall be in proportion to the share of the capital they represent and each share shall entitle the holder to at least one vote. Any clause to the contrary shall be considered non-existent.
II.- In limited partnerships with shares, whose capital is partly owned by the State, departments, municipalities or public institutions as a matter of public policy, and those whose object is to operate services under licence from the competent Government authorities, outside mainland France, voting rights shall be governed by the memorandum and articles of association in force at 1 April 1967.
Article L225-123 A voting right equivalent to twice that attributed to other shares may be attributed to fully paid shares which can be
proved to have been registered in the name of the same shareholder for at least two years, depending on the proportion of the share capital they represent, by the memorandum and articles of association or an special shareholders’ meeting.
Furthermore, in the event of an increase in capital by incorporation of reserve funds, profits or issue premiums, a double voting right may be conferred from the date of issue on registered
shares allocated to a shareholder free of charge in proportion to any former shares for which he has the benefit of that right.
The voting right provided in the first and second sub-paragraphs above may be reserved to French shareholders and those that are nationals of a Member State of the European Community or a Member State of the European Economic Area.
Article L225-124 Any share converted into a bearer share or changing hands shall lose the right to a double vote attributed pursuant
to Article L.225-123. Nevertheless, a transfer on succession, or on the partition of property jointly owned by spouses, or a gift inter vivos to a spouse or a relative entitled to succeed to the donor's estate shall not cause the right to be lost, nor interrupt the period of time referred to in the said Article.
The merger or division of a company shall have no effect on double voting rights capable of being exercised within the beneficiary company or companies, where the memorandum and articles of association of the latter created it.
Article L225-125 The memorandum and articles of association may limit the number of votes attributed to each shareholder at
meetings, provided that any such limitation shall be imposed on all shares irrespective of class, other than non-voting preferred stock.
Article L225-126 Subject to the provisions of Articles L.225-161 and L.225-174, the memorandum and articles of association may
provide for the creation of preference shares not carrying the right to vote at general shareholders' meetings. They shall be governed by Articles L.228-12 to L.228-20.
Only companies that shall have made a distributable profit as defined by the first sub-paragraph of Article L.232-11 during the last two financial years shall be entitled to create non-voting preferred stock.
SECTION IV Changes to share capital and the body of employee shareholders Articles L225-127 to
L225-217
Subsection 1 Capital increases Articles L225-127 to
L225-149-3
Article L225-127 (Order No. 2004-604 of 24 June 2004 Art. 2 Official Journal of 26 June 2004)
The share capital is increased either by an issue of ordinary shares or preference shares, or by increasing the nominal value of the existing capital securities.
It may also be increased by exercise of the rights attached to transferable securities giving access to the capital, as provided for in Articles L. 225-149 and L. 225-177.
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COMMERCIAL CODE Article L225-128 (Order No. 2004-604 of 24 June 2004 Art. 3 Official Journal of 26 June 2004)
The new capital securities are issued either for their nominal value, or for that value plus a share premium. They are paid up either by a cash contribution, including compensation against encashable and due receivables on
the company, or by a contribution in kind, or by incorporation of reserves, profits or share premiums, or as a result of a merger or demerger.
They may also be paid up following the exercise of a right attached to transferable securities giving access to the capital, including, where applicable, payment of the corresponding sums.
Article L225-129 (Act No. 2001-152 of 19 February 2001 Art. 29 1 Official Journal of 20 February 2001) (Act No. 2003-7 of 3 January 2003 Art. 50 II Official Journal of 4 January 2003) (Act No. 2003-706 of 1 August 2003 Art. 132 Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 4 Official Journal of 26 June 2004)
Only an extraordinary general meeting is competent to decide an immediate or eventual capital increase, on the basis of a report from the board of directors or the executive board. It may delegate this competence to the board of directors or the executive board in the manner indicated in Article L. 225-129-2.
Without prejudice to the provisions of Articles L. 225-129-2 and L. 225-138, the capital increase must be effected within five years of that decision or delegation being made. This time limit does not apply to capital increases made subsequent to the exercise of a right attached to a transferable security giving access to the capital or subsequent to the exercise of options as envisaged in Article L. 225-177.
Article L225-129-1 (inserted by Order No. 2004-604 of 24 June 2004 Art. 5 Official Journal of 26 June 2004)
When the extraordinary general meeting decides to effect a capital increase, it may delegate the power to determine the terms and conditions of the issue of securities to the board of directors or the executive board.
Article L225-129-2 (Order No. 2004-604 of 24 June 2004 Art. 5 Official Journal of 26 June 2004) (Finance Act 2005 No. 2004-1484 of 30 December 2004 Art. 83 I b Official Journal of 31 December 2004)
When the extraordinary general meeting delegates its competence to decide a capital increase to the board of directors or the executive board, it determines the period, which shall not exceed twenty-six months, during which that delegation may be used, and the overall ceiling for that increase.
Such delegation renders any prior delegation having the same object ineffective. The issues referred to in Articles L. 225-135 to L. 225-138-1 and L. 225-177 to L. 225-186, and L. 225-197-1 to L.
225-197-3, and likewise the issues of preference shares referred to in Articles L. 228-11 to L. 228-20, must be the subject of special resolutions.
Within the limits of the delegation given by the general meeting, the board of directors or the executive board has the powers required to determine the conditions of issue, to declare the completion of the resultant capital increases and to make the appropriate amendment to the articles of association.
Article L225-129-3 (inserted by Order No. 2004-604 of 24 June 2004 Art. 5 Official Journal of 26 June 2004)
Any delegation made by the general meeting is suspended while a takeover bid or exchange offer for the company's securities is in progress, unless it forms part of the company's normal business activities and its implementation is not liable to cause the offer to fail.
Article L225-129-4 (inserted by Order No. 2004-604 of 24 June 2004 Art. 5 Official Journal of 26 June 2004)
In limited companies whose securities are admitted to trading on a regulated market: a) The board of directors may, within limits which it has previously set, delegate to the general manager or, with his
agreement, to one or more delegated general managers, the power to decide to proceed with the issue, or to postpone it;
b) The executive board may delegate to its chairman or, with his agreement, to one of its members, the power to decide to proceed with the issue, or to postpone it.
The designated persons report to the board of directors or the executive board on the use made of that power in the manner stipulated by the latter.
Article L225-129-5 (inserted by Order No. 2004-604 of 24 June 2004 Art. 5 Official Journal of 26 June 2004)
When use is made of delegations as provided for in Articles L. 225-129-1 and L. 225-129-2, the board of directors or the executive board draws up a supplementary report for the next ordinary general meeting in the manner determined in a Conseil d'Etat decree.
NB: Order 2004-604 2004-06-24 Art. 64: The provisions of Article L. 225-129-5 of the Commercial Code apply to financial years commenced on or after 1 January 2004.
Article L225-129-6 (Order No. 2004-604 of 24 June 2004 Art. 5 Official Journal of 26 June 2004)
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COMMERCIAL CODE (Act No. 2004-1343 of 9 December 2004 Art. 78 XXVII Official Journal of 10 December 2004) (Act No. 2005-842 of 26 July 2005 Art. 42 Official Journal of 27 July 2005)
When any capital increase via a cash contribution takes place, unless it results from a prior issue of transferable securities giving access to the capital, an extraordinary general meeting shall rule on a draft resolution to increase the capital as provided for in Article L443-5 of the Labour Code. An extraordinary general meeting shall also rule on such a draft resolution when it delegates its power to increase the capital pursuant to Article L225-129-2.
Every three years, an extraordinary general meeting is convened to rule on a draft resolution to increase the capital as provided for in Article L443-5 of the Labour Code if, in view of the report presented to the general meeting by the board of directors or the executive board pursuant to Article L225-102, the securities held by the staff of the company and of any companies linked to it within the meaning of Article L225-180 represent less than 3% of the capital.
Article L225-130 (Order No. 2004-604 of 24 June 2004 Art. 6 Official Journal of 26 June 2004)
When a capital increase effected by issuing new capital securities or increasing the nominal value of the existing capital securities takes place through incorporation of reserves, profits or share premiums, the general meeting, contrary to the provisions of Article L. 225-96, decides this under the quorum and majority conditions laid down in Article L. 225-98. In which case, it may decide that the rights attached to fractional shares are neither tradable nor assignable and that the corresponding capital securities must be sold. The proceeds of the sale are allocated to the holders of rights within a time limit determined in a Conseil d'Etat decree.
With the exception of the cases envisaged in the previous paragraph, a capital increase effected by increasing the nominal value of the capital securities may only be decided with the unanimous consent of the shareholders.
Article L225-131 (Order No. 2004-604 of 24 June 2004 Art. 51 IV Official Journal of 26 June 2004)
The capital must be fully paid up before any issue of new shares to be paid up in cash takes place. Moreover, a capital increase by way of public offering effected less than two years after the formation of a company
pursuant to Articles L. 225-12 to L. 225-16 must be preceded, as provided for in Articles L. 225-8 to L. 225-10, by a verification of the assets and liabilities, and, where applicable, the specific benefits granted.
Article L225-132 (Order No. 2004-604 of 24 June 2004 Art. 7, Art. 51 V Official Journal of 26 June 2004)
The shares confer a preferential right to subscribe to capital increases. Proportionate to the value of their shares, shareholders have a preferential right to subscribe shares issued for cash
to increase the capital. Throughout the subscription period, that right is transferable when it is detached from shares which are themselves
transferable. When this is not the case, it is assignable in the same way as the shares themselves. Shareholders may individually waive their preferential rights. A decision to convert preference shares entails the waiving of the shareholders' preferential right to subscribe the
shares resulting from the conversion. A decision to issue transferable securities giving access to the capital also entails the waiving of the shareholders'
preferential right to subscribe the capital securities to which the transferable securities issued give entitlement.
Article L225-133 (Order No. 2004-604 of 24 June 2004 Art. 8 Official Journal of 26 June 2004)
If the general meeting or, in the event of delegation as provided for in Article L. 225-129, the board of directors or the executive board, expressly so decides, capital securities which are not irrevocably subscribed are allotted to the shareholders who have subscribed a number of securities greater than that which they could subscribe preferentially, in proportion to the subscription rights they hold and, in any event, within the limit of their requests.
Article L225-134 (Order No. 2004-604 of 24 June 2004 Art. 9 Official Journal of 26 June 2004)
I. - If the irrevocable subscriptions and, where applicable, the free subscriptions, have not absorbed the total capital increase:
1. The amount of the capital increase may be limited to the amount of the subscriptions unless the general meeting decides otherwise. Under no circumstances shall the amount of the capital increase be less than three quarters of the increase decided;
2. Unsubscribed shares may be freely allotted, in whole or in part, unless the meeting decides otherwise; 3. Unsubscribed shares may be offered to the public, in whole or in part, if the meeting has made express provision
for such an eventuality. II. - The board of directors or the executive board may use the rights provided for above, or certain of them, in
whatever order it determines. The capital increase is not effected if, after exercise of those rights, the amount of the subscriptions received does not amount to the total capital increase, or three quarters of that increase in the case envisaged in 1 of I.
III. - However, the board of directors or the executive board may, as a matter of course and in all instances, limit the capital increase to the amount received when the unsubscribed shares represent less than 3% of the capital increase. Any contrary decision is deemed not to have been taken.
Article L225-135
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COMMERCIAL CODE (Order No. 2004-604 of 24 June 2004 Art. 10 Official Journal of 26 June 2004)
A meeting which decides or authorises a capital increase may remove the preferential subscription right for the total capital increase or one or more tranches thereof. It decides this on the basis of a report from the board of directors or the executive board. When it decides to proceed with a capital increase, it also takes account of an auditor's report. In the case of issues made by the board of directors or the executive board pursuant to authorisation given by the general meeting, the auditor draws up a report for the board of directors or the executive board.
For companies whose capital securities are admitted to trading on a regulated market, the meeting may require that the capital increase it decides on or authorises have a subscription priority period in favour of the shareholders of a minimum duration determined in a Conseil d'Etat decree. It may also delegate to the board of directors or the executive board the task of determining whether such a priority period is warranted and, should this be the case, of establishing its duration on the same basis.
A Conseil d'Etat decree determines the particulars of the auditor's reports referred to in the present article.
Article L225-135-1 (inserted by Order No. 2004-604 of 24 June 2004 Art. 11 Official Journal of 26 June 2004)
When a capital increase is effected, with or without a preferential subscription right, the meeting may request that the number of securities be increased for a period determined in a Conseil d'Etat decree, proportionate to a fraction of the initial issue determined in that same decree, and at the same price as that initial issue. The limit provided for in 1 of I of Article L. 225-134 is then increased in the same proportion.
Article L225-136 (Order No. 2004-604 of 24 June 2004 Art. 12 Official Journal of 26 June 2004)
An issue of capital securities by way of public offering without a preferential subscription right is subject to the following conditions:
1. For companies whose capital securities are admitted to trading on a regulated market, if the transferable securities to be issued immediately or subsequently shall have equivalent status, the issue price must be determined as stipulated in a Conseil d'Etat decree issued following consultation with the Financial Markets Authority.
However, subject to a limit of 10% of the share capital per annum, the extraordinary general meeting may authorise the board of directors or the executive board to set the issue price on the basis of terms which it determines in the light of a report from the board of directors or the executive board, and a special report from the auditor. When such authorisation is used, the board of directors or the executive board draws up a supplementary report, certified by the auditor, which describes the definitive conditions of the operation and provides information which facilitates assessment of the effective impact on the shareholder's situation.
2. In other cases, the issue price or the conditions for determining that price are determined by the extraordinary general meeting on a report of the board of directors or the executive board and on special report from the auditor.
Article L225-137 Public issues without rights of subscription of new shares not conferring the same rights on their holders as those
conferred by the previous shares shall be subject to the following conditions: 1. The issue must take place within two years of the date of the meeting that authorised it; 2. The issue price or conditions on which the same is fixed shall be determined by an special shareholders’ meeting
on a report by the board of directors or management and a special auditor's report. II.- If the issue shall not have taken place by the date of the next annual general meeting following the decision, an
special shareholders’ meeting must decide, on the basis of the report by the board of directors or management and the special auditor's report, whether to maintain or adjust the issue price or the conditions in accordance with which it is determined. If it fails to do so, the decision of the earlier meeting shall lapse.
Article L225-138 (Act No. 2001-152 of 19 February 2001 Art. 10 III, Art. 17 VII, Art. 29 2 Official Journal of 20 February 2001) (Act No. 2003-706 of 1 August 2003 Art. 124 Official Journal of 2 August 2003) (Act No. 2003-775 of 21 August 2003 Art. 109 III 3 Official Journal of 22 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 13 Official Journal of 26 June 2004)
I. - A general meeting which decides on a capital increase may reserve it for one or more persons designated by name or for categories of persons who meet certain criteria. To that end, it may remove the preferential subscription right. The persons designated by name who benefit from that provision shall not participate in the vote. The quorum and majority required are calculated after deduction of the shares that they hold. The procedure provided for in Article L. 225-147 shall not apply.
When the extraordinary general meeting removes the preferential subscription right in favour of one or more categories of persons who meet the criteria it sets, it may delegate to the board of directors or the executive board the task of drawing up a list of the beneficiaries within that category, or those categories, and the number of securities to be allotted to each of them, subject to the ceilings specified in the first paragraph of Article L. 225-129-2. When such a delegation is used, the board of directors or the executive board draws up a supplementary report for the next ordinary general meeting, certified by the auditor, which sets out the definitive terms of the operation.
II. - The issue price or the formula for calculating it is determined by the extraordinary general meeting on a report of the board of directors or the executive board and a special report from the auditor.
III. - The issue must take place within eighteen months of the general meeting which decided it or which approved the delegation provided for in Article L. 225-129.
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COMMERCIAL CODE Article L225-138-1 (inserted by Order No. 2004-604 of 24 June 2004 Art. 13, Art. 14 Official Journal of 26 June 2004)
For application of the first paragraph of Article L. 443-5 of the Labour Code relating to capital increases reserved for members of a company savings plan, when the general meeting has removed the preferential subscription right in favour of employees of the company or of the companies affiliated to it within the meaning of Article L. 225-180, the provisions of I and II of Article L. 225-138 apply and:
1. The subscription price is still determined in the manner described in Article L. 443-5 of the Labour Code; 2. The capital increase is only effected in the amount of the capital securities subscribed by the employees
individually or through an open-end investment company or of the securities issued by unit trusts governed by Article L. 214-40-1 of the Monetary and Financial Code. It does not give rise to the formalities referred to in Articles L. 225-142, L. 225-144 and L. 225-146;
3. (deleted) 4. The time granted to subscribers for paying up their securities shall not exceed three years; 5. Capital securities or transferable securities giving access to the capital may be paid up, at the request of the
company or the subscriber, either by periodic payments, or by equal and regular deductions from the subscriber's salary; 6. The capital securities or transferable securities giving access to the capital thus subscribed which are delivered
prior to expiry of the five-year period referred to in Article L. 443-6 of the Labour Code are not transferable until they are fully paid up;
7. The capital securities or transferable securities giving access to the capital reserved for members of the savings plans referred to in Article L. 443-1 of the Labour Code may, contrary to the provisions of the first paragraph of Article L. 225-131 of the present code, be issued even when the share capital has not been fully paid up.
The fact of the securities referred to in the previous paragraph not having been fully paid up does not prevent the issue of capital securities from being paid up in cash.
Members of the company savings plan referred to in Article L. 443-1 of the Labour Code may cancel or reduce their commitment to subscribe or to hold capital securities or transferable securities giving access to the capital issued by the company in the circumstances and under the terms and conditions laid down in the Conseil d'Etat decrees referred to in Article L. 442-7 of that same code.
Article L225-139 (Order No. 2004-604 of 24 June 2004 Art. 15 Official Journal of 26 June 2004)
A Conseil d'Etat decree determines the elements which must appear in the reports referred to in Articles L. 225-129, L. 225-135, L. 225-136 and L. 225-138, and also in the reports provided for in the event of preference shares or transferable securities giving access to the capital being issued.
Article L225-140 (Order No. 2004-604 of 24 June 2004 Art. 16 Official Journal of 26 June 2004)
When capital securities are subject to a usufruct, the preferential subscription right attached to them shall belong to the bare owner. If the latter sells the subscription rights, the proceeds of the sale or the property he purchases therewith shall be subject to the usufruct. If the bare owner fails to exercise his right, the usufructuary may subscribe new shares or sell the rights in his place. In the latter case, the bare owner may demand re-use of the proceeds of sale. The property thus acquired is subject to the usufruct.
The new shares shall belong to the bare owner for the bare ownership and to the usufructuary for the usufruct. However, where funds are paid out by the bare owner or the usufructuary to pay for or complete a subscription, the new shares shall belong to the bare owner or the usufructuary only up to the value of the subscription rights. Any surplus on the new shares shall be the absolute property of he who paid out the funds.
A Conseil d'Etat decree determines the present article's implementing regulations, the provisions of which shall also apply in the event of securities being allotted at no cost.
The provisions of the present article shall apply in the absence of any agreement between the parties.
Article L225-141 (Order No. 2004-604 of 24 June 2004 Art. 17 Official Journal of 26 June 2004)
The period within which shareholders must exercise their subscription right shall not be less than five trading days after the opening date for subscriptions.
The said period shall in fact end as soon as all irrevocable subscription rights are exercised or as soon as the capital increase is fully subscribed following individual waivers of subscription rights by the non-subscribing shareholders.
Article L225-142 Before the opening date of subscription, the company shall deal with the publication formalities, details of which
shall be fixed by an Order approved by the Conseil d'Etat.
Article L225-143 (Order No. 2004-604 of 24 June 2004 Art. 18 Official Journal of 26 June 2004)
The subscription agreement for capital securities or transferable securities giving access to the capital is based on an application form drawn up as determined in a Conseil d'Etat decree.
An application form is not required, however, from credit institutions and investment service providers who subscribe on behalf of a client, provided that they can produce evidence of their instructions.
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COMMERCIAL CODE Article L225-144
Shares paid in cash must be paid as to at least a quarter of their nominal value and the whole of any issue premium on subscription. Payment of the balance must be made by one or more instalments within five years of the date on which the increase in share capital became unconditional.
The provisions of the first sub-paragraph of Article L.225-5 shall apply, except those relating to the subscribers’ list. A representative of the company may withdraw funds derived from subscriptions paid in cash when the deposit certificate has been issued.
If the increase in capital shall not have taken place within six months of the opening subscription date, the provisions of the second sub-paragraph of Article L.225-11 may be applied.
Article L225-145 (Act No. 2001-1168 of 11 December 2001 Art. 27 II Official Journal of 12 December 2001)
In companies which make public offerings to distribute their shares, an increase in capital is deemed to have taken place when one or more investment service providers authorised to provide the investment service referred to in 6 of Article L321-1 of the Monetary and Financial Code, or persons referred to in Article L532-18 of that code authorised to provide the same service in their country of origin, have irrevocably guaranteed its proper execution. Settlement of the paid-up fraction of the nominal value and the entirety of the issue premium must take place within thirty-five days of the close of the subscription period.
Article L225-146 Subscriptions and payments shall be recorded by a deposit certificate issued on the deposit of funds, on production
of a subscription report. Payment of shares by set-off against liquidated enforceable debts owed by the company shall be recorded by a
notarial or auditor's certificate. Such a certificate shall replace the deposit certificate.
Article L225-147 (Order No. 2004-604 of 24 June 2004 Art. 19 Official Journal of 26 June 2004)
When contributions in kind are made or special privileges are stipulated, one or more valuers of contributions in kind are appointed by a court decision. They are subject to the incompatibilities referred to in Article L. 822-11.
The said valuers shall assess the value of the contributions in kind and the special privileges under their own liability. A Conseil d'Etat decree determines the main headings of their report, the time limit for its submission, and the manner in which it is made available to the shareholders. The provisions of Article L. 225-10 apply to the extraordinary general meeting.
If the meeting approves the valuation of the contributions and the grant of special privileges, it shall declare the capital increase to have been effected.
If the meeting reduces the valuation of the contributions and the grant of special privileges, express approval of the changes is required from the contributors and the beneficiaries, or their duly authorised representatives. Failing this, the capital increase is not proceeded with.
The capital securities issued in respect of a contribution in kind are fully paid up at the time of issue. The extraordinary general meeting of a company whose securities are admitted to trading on a regulated market
may delegate to the board of directors or the executive board, for a maximum period of twenty-six months, the powers required to carry out a capital increase of not more than 10% of its share capital in order to compensate the contributions in kind made to the company in return for capital securities or transferable securities giving access to the capital, when the provisions of Article L. 225-148 are not applicable. The board of directors or the executive board decides on the report of the valuer(s) of contributions in kind referred to in the first and second paragraphs above pursuant to the third or fourth paragraphs above.
Article L225-148 (Order No. 2004-604 of 24 June 2004 Art. 51 VIII Official Journal of 26 June 2004)
The provisions of Article L. 225-147 are not applicable in the event of a company whose shares are admitted to trading on a regulated market effecting a capital increase for the purpose of paying for securities contributed through an exchange offer for the securities of a company whose shares are admitted to trading on a regulated market of a European Economic Area member state or a member state of the Organisation for Economic Cooperation and Development.
The capital increase takes place as provided for in Articles L. 225-129 to L. 225-129-6. However, the auditors may express an opinion on the conditions and consequences of the issue in the prospectus distributed at the time of its implementation and in their report to the first ordinary general meeting held subsequent to the issue.
Article L225-149 (Order No. 2004-604 of 24 June 2004 Art. 20 Official Journal of 26 June 2004)
A capital increase resulting from exercise of the rights attached to transferable securities giving access to the capital is not subject to the formalities referred to in Article L. 225-142, the second paragraph of Article L. 225-144 and Article L. 225-146. When the holder of a transferable security issued pursuant to Article L. 225-149-2 is not entitled to a whole number, a cash payment shall be made in respect of the fractional shares pursuant to a calculation method determined in a Conseil d'Etat decree.
The capital increase is definitively effected simply upon exercise of the rights and, where applicable, payment of the sums due.
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COMMERCIAL CODE At any time during the financial year then current, and at the first meeting held subsequent to its close, at the latest,
the board of directors or the executive board shall record the number and nominal value of the shares, if any, created for the benefit of the holders of rights during the previous financial year and make the necessary amendments to the articles of association relative to the amount of the share capital and the number of securities that represent it.
The chairman of the executive board or the general manager may, if duly empowered by the executive board or the board of directors, proceed with such transactions at any time during the financial year, and within the time limit set in a Conseil d'Etat decree at the latest.
Article L225-149-1 (Act No. 2003-706 of 1 August 2003 Art. 134 IV Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 21 Official Journal of 26 June 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 XXVII Official Journal of 10 December 2004)
In the event of new capital securities or new transferable securities giving access to the capital being issued, and likewise in the event of a merger or demerger of the company issuing such securities, the board of directors or the executive board may, during a maximum period determined in a Conseil d'Etat decree, suspend the option to obtain an allotment of capital securities through exercise of the right referred to in Article L. 225-149 and Article L. 225-178.
Except as otherwise provided in the issuance contract, the capital securities obtained after the suspension period through exercise of the rights attached to transferable securities give entitlement to the dividends paid in respect of the financial year during which they were issued.
Article L225-149-2 (inserted by Order No. 2004-604 of 24 June 2004 Art. 22 Official Journal of 26 June 2004)
The rights attached to shares giving access to the capital which have been used or acquired by the issuing company or by the company issuing the new capital securities are cancelled by the issuing company.
Article L225-149-3 (inserted by Order No. 2004-604 of 24 June 2004 Art. 22 Official Journal of 26 June 2004)
Decisions founded on the second paragraph of Article L. 225-129-6 or relating to the supplementary reports referred to in Article L. 225-129-5, the second paragraph of 1 of Article L. 225-136 and the second paragraph of I of Article L. 225-138 may give rise to an order pursuant to the terms and conditions set forth in Articles L. 238-1 and L. 238-6.
Decisions taken in violation of Articles L. 225-129-3 and L. 225-142 may be cancelled. Decisions taken in violation of the provisions of the present subsection other than those referred to in the present
article are null and void.
Subsection 2 Subscription and purchase of shares by employees Articles L225-150 to
L225-197-5
Article L225-150 On a report by the board of directors or the management, as the case may be, and a special auditors' report, an
special shareholders’ meeting may authorise the issue of bonds with one or more subscription warrants. The said warrants shall entitle the holder to subscribe shares to be issued by the company at one or more prices and according to the conditions and within the time limits fixed by the issue agreement. The time limit for the exercise of the right must not be more than three months later than the date of final repayment of the loan.
A company may issue bonds with warrants giving the holder the right to subscribe to shares to be issued by a company that directly or indirectly owns more than half its share capital. In any such case, the bond issue must be authorised by the routine shareholders’ meeting of the subsidiary company issuing the bonds, and the share issue by an special shareholders’ meeting of the company required to issue the shares.
The special shareholders’ meeting shall, in particular, decide the method of calculation of the price or prices at which the right of subscription shall be exercised and the maximum total number of shares that can be subscribed by warrant holders. The total price or prices at which the right of subscription shall be exercised must not be less than the nominal value of the shares subscribed on the presentation of warrants.
Unless otherwise stipulated in the issue agreement, warrants may be transferred or negotiated independently of the bonds.
Article L225-151 Shareholders of the company required to issue the shares shall have a preferential right of subscription of bonds
with warrants. The said preferential right of subscription shall be governed by Articles L.225-132 to L.225-141. The consent of an special shareholders’ meeting to the issue shall imply the waiver by the shareholders of their
preferential right of subscription of the shares to be subscribed on presentation of the said warrants in favour of the warrant holders.
Issues of bonds with warrants must take place within a maximum period of five years of the date of the decision of the special shareholders’ meeting. The said period shall be reduced to two years where the shareholders waive their preferential right of subscription of the bonds with warrants.
Article L225-152 In the event of an increase in capital, merger or division of the company required to issue the shares, the board of
directors or the management may suspend the exercise of the right of subscription for a period not exceeding three
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COMMERCIAL CODE months.
Shares subscribed by warrant holders shall entitle the holder to dividends paid in respect of the financial year during which the said shares were subscribed.
Article L225-153 With effect from the date of the vote by the special shareholders’ meeting of the company required to issue the
shares, and as long as there are valid warrants in existence, the company shall not be permitted to amortise its share capital or vary the distribution of its profits.
Nevertheless, the company may create non-voting preferred stock provided that the rights of the bond holders are preserved as stipulated by Article L.225-154.
In the event of a reduction in capital caused by losses and effected by reducing the nominal total value or number of shares, the rights of warrant holders shall be reduced accordingly, as if the said holders had been shareholders since the date of issue of the bonds with share warrants.
Article L225-154 With effect from the date of the vote by the special shareholders’ meeting of the company required to issue the
shares, and as long as there are valid warrants in existence, the issue of shares to be subscribed against cash payments reserved to shareholders, the incorporation of reserve funds, profits or issue premiums into the share capital, and the distribution of reserve funds in cash or portfolio securities shall be authorised only provided that the rights of any warrant holders exercising their right of subscription are preserved.
To that end, the company must, in accordance with conditions to be laid down by an Order approved by the Conseil d'Etat, allow warrant holders exercising their right of subscription either to subscribe whole shares or obtain new shares free of charge, or to receive cash or securities similar to those distributed in the same quantities or proportions and according to the same conditions, save as regards the enjoyment of possession thereof, as if they had been shareholders at the date of the said issue, incorporation or distribution.
In the event of an issue of bonds with warrants or further convertible or exchangeable bonds, the company shall give notice of the said issue to the holders or bearers of warrants by public notice, in accordance with conditions to be laid down by an Order approved by the Conseil d'Etat, to enable them to opt for conversion within the time limit specified in the said notice. If the period within which the right of subscription may be exercised has not yet commenced, the exercise price to be adopted shall be the first price shown in the issue agreement. The provisions of this sub-paragraph shall apply to any other operation involving a right of subscription reserved to shareholders.
Nevertheless, where the warrants entitle the holder to subscribe shares admitted to trading on a regulated market, the issue agreement may provide, instead of the measures specified in the preceding sub-paragraphs, for the adjustment of the conditions of subscription originally laid down, in order to allow for the effects of the issue, incorporation or distribution, in accordance with conditions and by methods of calculation to be laid down by an Order approved by the Conseil d'Etat, under the supervision of the Commission des Opérations de Bourse [Securities and Investments Board].
Article L225-155 Increases in capital resulting from the exercise of the right of subscription shall not require the formalities specified
in Article L.225-142, the second sub-paragraph of Article L.225-144 and Article L.225-146. They shall be unconditionally effected merely by virtue of the payment of the subscription price accompanied by the subscription report and, if appropriate, the sums rendered payable by the subscription of cash shares under the circumstances referred to in Article L.225-154.
At its first meeting after the end of each financial year, the board of directors or management of the company, as the case may be, shall, if necessary, record the number and total nominal value of the shares subscribed by warrant holders during the year just ended and make the necessary amendments to the memorandum and articles of association relating to the total share capital and the number of shares it comprises. The chairman may, on being delegated by the board of directors or the management to do so, effect these operations in the months immediately following the end of the financial year. The board of directors or the management, or the chairman if delegated, may also, at any time, record the same information for the current year and amend the memorandum and articles of association accordingly.
Where, as a result of one of the operations mentioned in Articles L.225-154 and L.225-156, a holder of warrants presenting their certificates of entitlement to a number of shares including a fractional share, the fraction in question must be paid in cash according to methods of calculation to be fixed by an Order approved by the Conseil d'Etat.
Where the company required to issue shares is absorbed by another company or merges with one or more other companies to form a new company, or de-merges, by transferring its shares to existing or new companies, warrant holders may subscribe shares in the absorbing company or new companies. The number of shares they shall be entitled to subscribe shall be determined by correcting the number of shares to which they were entitled in the company required to issue the shares by the ratio of exchange of the latter company's shares for shares in the absorbing company or the new company or companies, taking the provisions of Article L.225-154 into account if appropriate.
The general meeting of the absorbing company or the new company or companies shall decide, in accordance with the conditions specified in the first paragraph of Article L.225-150, whether to waive the preferential right of subscription mentioned in Article L.225-151.
The absorbing company or the new company or companies shall replace the company issuing the shares for the purposes of Articles L.225-153 to L.225-155.
Article L225-157
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COMMERCIAL CODE Decisions taken in breach of Articles L.225-150 to L.225-156 shall be void.
Article L225-158 Warrant holders may, in accordance with conditions to be laid down by an Order approved by the Conseil d'Etat,
obtain disclosure of the documents listed in paragraphs 1 and 2 of Article L.225-115 for the last three financial years of the company issuing the shares, except its inventory of assets.
Article L225-159 Share warrants purchased by the issuing company and warrants used for share subscriptions shall be cancelled.
Article L225-160 The provisions of Articles L.225-150 to L.225-159 shall apply to the issue of bonds with warrants allocated to
employees by way of a share of the profits derived from the expansion of companies.
Article L225-161 On a report by the board of directors or the management, as the case may be, and a special auditors' report relating
to the proposed conversion basis, an special shareholders’ meeting may authorise the issue of bonds convertible into shares, to which the provisions of Part 5 of Chapter VIII of this Title shall be applicable. Unless it is decided to make an exception in accordance with Article L.225-135, shareholders shall be entitled to subscribe convertible bonds in accordance with the same conditions as those laid down for the subscription of new shares.
The said authority must contain an express waiver by the shareholders, in favour of the bond holders, of their preferential right to subscribe shares issued on the conversion of bonds.
Conversion may take place only with the agreement of the bearers, and in accordance with the conditions and conversion bases laid down by the bond issue agreement. The said agreement shall indicate either that conversion shall take place during one or more specific option periods, or that conversion may take place at any time.
The issue price of bonds convertible into shares must not be less than the nominal value of the shares to be received by the bond holders if they opt for conversion.
With effect from the date of the vote by the meeting and as long as there are any bonds convertible into shares in existence, the company shall be prohibited from amortising its share capital or varying the distribution of dividends. Nevertheless, the company may create non-voting preferred stock provided that the rights of bond holders are preserved, as stipulated by Article L.225-162.
In the event of a capital reduction caused by losses, by reducing either the total nominal value or number of shares, the rights of bond holders opting for the conversion of their securities shall be reduced accordingly, as if the said bond holders had been shareholders with effect from the date of issue of the bonds.
Article L225-162 With effect from the date of the vote by the meeting referred to in Article L.225-161, and as long as there are any
bonds convertible into shares in existence, the incorporation of reserve funds, profits or issue premiums into the share capital, and the distribution of reserve funds in cash or portfolio securities shall be authorised only on condition that the rights of bond holders opting for conversion shall be preserved.
To that end, the company must, in accordance with conditions to be laid down by an Order approved by the Conseil d'Etat, allow bond holders opting for conversion either to subscribe whole shares or obtain new shares free of charge, or to receive cash or securities similar to those distributed in the same quantities or proportions and likewise in accordance with the same conditions, save as regards the enjoyment of possession thereof, as if they had been shareholders at the date of the said issue, incorporation or distribution.
In the event of an issue of bonds with warrants or new convertible or exchangeable bonds, the company shall give notice of the said issue to the holders or bearers of warrants by notice to be published in accordance with conditions to be laid down by an Order approved by the Conseil d'Etat, to enable them, if they wish to participate in the operation, to exercise their option within the time limit specified in the said notice. If the period within which the right of subscription may be exercised has not yet commenced, the exercise price to be adopted shall be the first price shown in the issue agreement. The provisions of this sub-paragraph shall apply to any other operation involving a right of subscription reserved to shareholders, except those arising from the application of the first sub-paragraph of Article L.225-177.
Nevertheless, provided that the company's shares are admitted to trading on a regulated market, the issue agreement may provide, instead of the measures specified in the preceding sub-paragraph for the adjustment of the conditions of subscription originally laid down, in order to allow for the effects of the issue, incorporation or distribution, in accordance with conditions and by methods of calculation to be laid down by an Order approved by the Conseil d'Etat, under the supervision of the Commission des Opérations de Bourse [Securities and Investments Board].
In the case of shares issued to subscribers for cash or new convertible or exchangeable bonds, where a general meeting has removed the preferential right of subscription, the decision must be approved by the routine shareholders’ meeting of bond holders affected thereby.
Article L225-163 In the case of an issue of bonds convertible into shares at any time, conversion may be applied for during a period
commencing no later than either the first repayment date or the fifth anniversary of the start of the issue, and expiring three months after the date on which the bond is required to be repaid. Nevertheless, in the event of an increase in capital or merger, the board of directors or management, as the case may be, may suspend the exercise of the right for a period not exceeding three months.
Shares delivered to bond holders shall entitle the holder to dividends distributed for the year in which conversion
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COMMERCIAL CODE was applied for.
Where, as a result of one or more of the operations referred to in Articles L.225-162 and L.225-164, a bond holder applying for conversion of their shares is entitled to a number of shares that includes a fraction of a share, the said fraction must be paid in cash in accordance with conditions to be laid down by an Order approved by the Conseil d'Etat.
Increases in capital rendered necessary by the conversion of bonds shall not require the formalities specified in Article L.225-142, the second sub-paragraph of Article L.225-144 and Article L.225-146. It shall be unconditionally effected merely by virtue of the application for conversion, except where the second sub-paragraph of Article L.225-143 applies, the subscription report and, if appropriate, the sums rendered payable by the subscription of cash shares in the circumstances referred to in Article L225-162.
At its first meeting after the end of each financial year, the board of directors or management of the company, as the case may be, shall if necessary record the number and total nominal value of the shares issued on conversion during the year just ended and make the necessary amendments to the memorandum and articles of association relating to the total share capital and the number of shares it comprises.
The Chairman may, on being delegated by the board of directors or the management, effect these operations within a month of the end of the financial year. The board of directors or the management, or the Chairman if delegated, may also, at any time, record the same information for the current year and amend the memorandum and articles of association accordingly.
Article L225-164 With effect from the date of issue of the bonds convertible into shares, and as long as such bonds exist, the
absorption of the issuing company by another company or the merger thereof with one or more other companies to form a new company shall be subject to the approval of an special shareholders’ meeting of the bond holders affected. If the meeting shall not have approved the absorption or merger, or if it shall not have been able to take a valid decision for lack of the requisite quorum, the provisions of Article L.228-73 shall apply.
Bonds convertible into shares may be converted into shares in the absorbing or new company, either during the option period or periods provided by the issue agreement, or at any time, as the case may be. The conversion basis shall be determined by correcting the ratio of exchange of shares in the issuing company against shares in the absorbing or new company as specified in the said agreement, taking the provisions of Article L.225-162 into account if appropriate.
On the contribution auditors' report, as provided in Article L.225-147, that of the board of directors or management, as the case may be, and the company auditors' report, as provided in Article L.225-161, the general meeting of the absorbing or new company shall decide whether to approve the merger and the waiver of the preferential right of subscription specified in the second sub-paragraph of Article L.225-161.
The absorbing or new company shall replace the issuing company for the purposes of the third and fifth sub-paragraphs of Article L.225-161, Article L.225-162 and, if applicable, Article L.225-163.
Article L225-165 Decisions taken in breach of Articles L.225-161 to L.225-164 shall be void.
Article L225-166 The provisions of Articles L.225-161 to L.225-165 shall apply to the issue of bonds convertible into shares allocated
to employees by way of a share of the profits derived from the expansion of companies.
Article L225-167 If proceedings for judicial reorganisation on insolvency are commenced in respect of a company issuing convertible
bonds, the time limit for the conversion of the said bonds into shares shall commence on the date on which judgment is given drawing up the rehabilitation plan and the conversion may take place, with the agreement of every bond holder, subject to the conditions laid down in the plan.
Article L225-168 Companies whose shares are admitted to trading on a regulated market may issue bonds exchangeable for shares
in accordance with the conditions laid down by Articles L.225-169 to L.225-176. The provisions of Articles L.228-38 to L.228-90 shall apply to such bonds.
Article L225-169 On a report by the board of directors or management, as the case may be, and a special auditors' report, an special
shareholders’ meeting may authorise the issue of bonds that may be exchanged for shares already issued and held by third parties or for shares created on a simultaneous increase in capital. In the latter case, the shares shall be subscribed either by one or more credit institutions, or by one or more persons who shall have obtained a pledge of security from credit institutions.
The said authority shall imply the waiver by the shareholders of their preferential right of subscription in relation to the increase in capital.
Unless they waive the same in accordance with the conditions specified in Article L.225-135, the shareholders shall have a preferential right of subscription in relation to the exchangeable bonds issued. The said right shall be governed by Articles L.225-132 to L.225-141.
Article L225-170 On the same reports as are mentioned in the first sub-paragraph of Article L.225-169, an special shareholders’
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COMMERCIAL CODE meeting must be called to approve any agreement between the company and persons who undertake to effect the exchange of the bonds after subscribing a corresponding number of shares. The auditors' special report must specifically state the remuneration stipulated for the said persons.
Article L225-171 The issue price of exchangeable bonds must not be less than the nominal value of the shares the bond holders will
receive in the event of exchange. The exchange may not take place without the bond holders' agreement. It shall be effected in accordance with the
conditions and basis laid down by the issue agreement and by the agreement referred to in Article L.225-170. It may be applied for at any time within a period of three months after the date on which the bond is repayable.
Article L225-172 Immediately upon the issue of the bonds, and until the expiration of the option exercise period, the persons who
have undertaken to effect the exchange must exercise all rights of subscription relating to whole numbers of shares and all rights of allocation attached to the shares subscribed. In the event of exchange the new shares so obtained must be offered to the bond holders, who must be responsible for repaying the total amount of the sums paid to subscribe and pay up the said shares or to purchase the necessary supplemental rights to complete the number of rights attached to the old shares, together with interest on the said sums if so stipulated by the agreement referred to in Article L.225-170. In the case of fractional shares, the bond holder shall be entitled to payment in cash of the value of the said fractional shares, as valued at the date of exchange.
Article L225-173 The requisite shares to effect the exchange of bonds must be registered, non-transferable and non-attachable. They
may be transferred only when the exchange can be proved to have taken place. They must also be pledged in favour of the bond holders as security for the due performance of the obligations
assumed by the persons who have undertaken to effect the exchange. The provisions of the two preceding sub-paragraphs shall be applicable to new shares obtained pursuant to Article
L.225-172.
Article L225-174 With effect from the date of the vote by the meeting referred to in Article L.225-169, it shall be prohibited for the
company to amortise its share capital or vary the distribution of dividends until all the bonds issued have been exchanged or become repayable. The company may, however, create non-voting preferred stock.
In the case of distribution by the company of reserves in the form of shares during the same period, shares earmarked for exchange shall be subject to the provisions of the first and second sub-paragraphs of Article L.225-172.
Shares to be delivered to bond holders in the event of exchange must correspond to the number of shares to which they are entitled. Any fractional shares must be paid for in cash, the price being calculated according to the value of the shares at the date of exchange. Dividends and interest becoming due between the date of distribution and the date of exchange shall be payable to the persons who have undertaken to effect the exchange.
In the event of distribution by the company of reserves in cash during the period referred to in the first sub-paragraph above, bond holders shall be entitled on the exchange of their shares to a sum equivalent to that which they would have received if they had been shareholders at the time of distribution.
Article L225-175 Between the issue of bonds exchangeable for shares and the date at which all bonds must have been exchanged or
repaid, the absorption of the issuing company by another company or the merger of the issuing company with one or more companies to form a new company shall be subject to the prior approval of an special shareholders’ meeting of the bond holders affected.
Bonds exchangeable for shares may in any such case be exchanged, within the period stipulated in the second sub-paragraph of Article L.225-171, for shares in the absorbing or new company that have been received by the persons who have undertaken to effect the exchange. The exchange bases shall be fixed by correcting the ratio of exchange fixed by the issue agreement according to the ratio of exchange between shares in the issuing company and shares in the absorbing or new company.
The absorbing or new company shall replace the issuing company for the purposes of Article L.225-174 and the agreement referred to in Article L.225-170.
Article L225-176 Any decisions taken in breach of the provisions of Articles L.225-169, L.225-170, L.225-171, L.225-174 and
L.225-175 shall be void.
Article L225-177 (Act No. 2001-420 of 15 May 2001 Art. 132 I Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
On the basis of a report from the board of directors or the executive board, as applicable, and the auditors' special report, the extraordinary general meeting may authorise the board of directors or the executive board to grant stock options to some or all of the company's staff. The extraordinary general meeting determines the period during which the said authorisation may be used by the board of directors or the executive board, which shall not exceed thirty-eight months. However, authorisations granted before the publication date of Act No. 2001-420 of 15 May 2001 relating to the
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COMMERCIAL CODE new financial regulations shall remain valid until they expire.
The board of directors or the executive board determines the conditions under which the options shall be granted. The said conditions may include a prohibition on the immediate reselling of some or all of the shares, but the period imposed for retaining the shares shall not exceed three years from the date on which the option is exercised.
Options may be granted or exercised even before the share capital has been fully paid up. The subscription price is determined by the board of directors or the executive board, on the day on which the
option is granted, in the manner stipulated by the extraordinary general meeting based on the auditors' report. If the company's shares are not admitted to trading on a regulated market, the subscription price is determined in accordance with the objective methods applicable to the valuation of shares which takes account of the company's net assets position, profitability and business prospects, applying a weighting specific to each case. The said criteria are assessed, if appropriate, on a consolidated basis or, failing that, by taking the financial elements of their significant subsidiaries into account. Failing this, the subscription price is determined by dividing the amount of the revalued net assets by the number of securities in existence calculated on the basis of the most recent balance sheet. A decree determines the method for calculating the subscription price. If the company's shares are admitted to trading on a regulated market, the subscription price cannot be lower than 80% of the average of the prices quoted at the twenty stock-exchange trading days preceding that day, and no option shall be granted less than twenty stock-exchange trading days after detachment from the shares of a coupon giving entitlement to a dividend or a capital increase.
In a company whose securities are admitted to trading on a regulated market, options shall not be granted: 1. During the ten stock-exchange trading days preceding and following the date on which the consolidated
accounts, or failing that the annual accounts, are published; 2. During the period between the date on which the company's management structures have knowledge of
information which, were it to be published, could have a significant impact on the price of the company's securities, and the date ten stock-exchange trading days after that on which the said information is published.
Options to subscribe to securities which are not admitted to trading on a regulated market may only be granted to employees of the company granting them or to those of the companies referred to in 1 of Article L. 225-180.
Article L225-178 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The authorisation given by the extraordinary general meeting entails an express waiver by the shareholders, in favour of the option holders, of their preferential right to subscribe the shares that are issued as and when the options are exercised.
The capital increase resulting from the exercise of those options does not give rise to the formalities referred to in Article L. 225-142, the second paragraph of Article L. 225-144 and Article L. 225-146. It is definitively effected merely upon submission of the option-exercise declaration together with the application form and payment of the appropriate sum in cash or through offsetting against monies owed by the company.
At its first meeting following the close of each financial year, the board of directors or the executive board, as applicable, duly records the number and value of the shares, if any, issued during the financial year as a result of options being exercised, and makes the necessary amendments to the articles of association to reflect the new amount of the share capital and the number of shares that represent it. If duly empowered by the board of directors or the executive board, the chairman may proceed with this during the month which follows the close of the financial year. The board of directors or the executive board, or the chairman if so empowered, may also record the same information, at any time, for the financial year in progress and make the relevant amendments to the articles of association.
Article L225-179 (Act No. 2001-420 of 15 May 2001 Art. 132 II Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The extraordinary general meeting may also authorise the board of directors or the executive board, as applicable, to grant some or all of the company's staff options to purchase shares deriving from a redemption effected by the company itself prior to the opening of the option in the manner described in Articles L. 225-208 or L. 225-209. The extraordinary general meeting determines the period during which that authorisation may be used by the board of directors or the executive board, which shall not exceed thirty-eight months. However, authorisations granted before the publication date of Act No. 2001-420 of 15 May 2001 relating to the new financial regulations shall remain valid until they expire.
In such cases, the provisions of the second and fourth to seventh paragraphs of Article L. 225-177 are applicable. Moreover, the share price on the day on which the option is granted cannot be lower than 80% of the average purchase price of the shares held by the company by virtue of Articles L. 225-208 and L. 225-209.
Options entitling the holder to purchase securities which are not admitted to trading on a regulated market may be granted only to employees of the company granting the option or those of the companies referred to in 1 of Article L. 225-180.
Article L225-180 (Act No. 2001-420 of 15 May 2001 Art. 32 Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
I. - Options may be granted, under the terms and conditions set forth in Articles L. 225-177 to L. 225-179 above: 1. To the employees of companies or economic interest groups having at least 10% of their shares or voting rights
directly or indirectly held by the company granting the options;
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COMMERCIAL CODE 2. Or the employees of companies or economic interest groups directly or indirectly holding at least 10% of the
capital or voting rights of the company granting the options; 3. Or the employees of companies or economic interest groups having at least 50% of their shares or voting rights
directly or indirectly held by a company which itself directly or indirectly holds at least 50% of the capital of the company granting the options.
II. - The ordinary general meeting of the company which has direct or indirect majority control of the company granting the options is informed as provided for in Article L. 225-184.
Options may also be granted under the terms and conditions set forth in Articles L. 225-177 to L. 225-179 by a company which is directly or indirectly and solely or jointly controlled by a central body or by credit institutions affiliated thereto within the meaning of Articles L. 511-30 to L. 511-32 of the Monetary and Financial Code, to employees of the said companies and those of entities having more than 50% of their shares held directly or indirectly and solely or jointly by that central body or its affiliated institutions.
Article L225-181 (Order No. 2004-604 of 24 June 2004 Art. 51 IX, X Official Journal of 26 June 2004)
The price established for the subscription or purchase of the shares may not be changed during the option period. However, when the company proceeds with a capital write-off or reduction, a change to the appropriation of profits,
a free allotment of shares, a capitalisation of reserves, profits or share premiums, a distribution of reserves or any issue of capital securities or securities giving entitlement to an allotment of capital securities conferring a subscription right reserved for shareholders, it must take the necessary measures to protect the interests of the option holders as provided for in Article L. 228-99.
Article L225-182 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The total number of options open and not yet exercised shall not constitute entitlement to subscribe a number of shares in excess of a fraction of the share capital determined in a Conseil d'Etat decree.
Options shall not be granted to employees and executives holding more than 10% of the share capital.
Article L225-183 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The extraordinary general meeting determines the period during which the options must be exercised. The rights deriving from the options granted are non-transferable until the option has been exercised. In the event of the option holder's death, his heirs shall have a period of six months starting on the date of his death
in which to exercise the option.
Article L225-184 (Act No. 2001-420 of 15 May 2001 Art. 132 III Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
A special report informs the ordinary general meeting each year of the transactions carried out by virtue of the provisions of Articles L. 225-177 to L. 225-186.
The said report also indicates: - the number, expiry dates and price of the options to subscribe or purchase shares which, during the year and
relative to the duties and functions performed in the company, have been granted to each of those executives by the company and the companies affiliated to it as provided for in Article L. 225-180;
- the number, expiry dates and price of the options to subscribe or purchase shares which have been granted during the year to each of those executives relative to the duties and functions they perform by controlled companies within the meaning of Article L. 233-16;
- the number and price of the shares subscribed or purchased by the company's executives during the financial year through exercise of one or more of the options held on the companies referred to in the previous two paragraphs.
The said report also indicates: - the number, price and expiry dates of the options to subscribe or purchase shares granted during the year by the
company and the companies or groups associated with it as provided for in Article L. 225-180 to each of the ten non-executive employees of the company who were granted the highest number of options;
- the number and price of the shares which have been subscribed or purchased during the year through the exercise of one or more options held on the companies referred to in the previous paragraph by each of the ten non-executive employees of the company who thus purchased or subscribed the highest number of shares.
Article L225-185 (Act No. 2001-420 of 15 May 2001 Art. 132 IV Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
Options giving entitlement to subscribe to shares may be granted for a period of two years, commencing on the date of the company's registration, to natural-person executives who participate with employees in the formation of a company.
Such options may also be granted, for a period of two years with effect from the purchase, to natural-person executives of a company who combine with employees to purchase the majority of the voting rights in order to ensure the company's continued existence.
In the event of options being granted within two years of a company's creation or of the purchase of the majority of a
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COMMERCIAL CODE company's shares by its employees or executives, the maximum indicated in the last paragraph of Article L. 225-182 is increased to one third of the capital.
The chairman of the board of directors, the general manager, the acting general managers, the members of the executive board or the chief executive of a joint-stock company may be granted options by that company which confer entitlement to subscribe or purchase shares as provided for in Articles L. 225-177 to L. 225-184.
They may also be granted options which give entitlement to subscribe or purchase shares of an associated company as provided for in Article L. 225-180, provided that the said company's shares are admitted to trading on a regulated market.
Article L225-186 (Act No. 2001-420 of 15 May 2001 Art. 31 Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
Articles L. 225-177 to L. 225-185 are applicable to investment certificates, cooperative investment certificates and members' investment certificates.
Article L225-187-1 (Act No. 2001-152 of 19 February 2001 Art. 29 5 Official Journal of 20 February 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The wording of Articles L. 225-192 to L. 225-194 and Article L. 225-197 which predates the publication of Act No. 2001-152 of 19 February 2001 relating to save-as-you-earn schemes shall remain applicable until a period of five years has elapsed since its publication.
Article L225-197-1 (inserted by Finance Act 2005 No. 2004-1484 of 30 December 2004 Art. 83 I a Official Journal of 31 December 2004)
I. - The extraordinary general meeting may, on the basis of a report from the board of directors or the executive board, as applicable, and the auditors' special report, authorise the board of directors or the executive board to make a free allotment of existing or new shares to the company's staff or to certain categories of staff.
The extraordinary general meeting determines the maximum percentage of the share capital which may be allotted as indicated above. The allotment of the shares to the beneficiaries becomes absolute upon expiry of an acquisition period of a minimum duration determined by the extraordinary general meeting which shall not be less than two years. The extraordinary general meeting also determines the minimum period during which the beneficiaries must hold the shares. The said period shall run from the date on which the allotment of shares becomes absolute, but shall never be less than two years.
In a company whose securities are admitted to trading on a regulated market, even when the compulsory holding period has expired, the shares may not be sold:
1. During the period of ten stock-exchange trading days that precede or follow the date on which the consolidated accounts, or failing that the annual accounts, are published;
2. During the period between the date on which the company's management structures have knowledge of information which, were it to be published, could have a significant impact on the price of the company's securities, and the date ten stock-exchange trading days after that on which the said information is published.
The board of directors or, where applicable, the executive board, determines the identity of the beneficiaries of the share allotments referred to in the first paragraph. It also lays down the conditions and, where applicable, the allotment criteria, applicable to the shares.
The extraordinary general meeting determines the period during which the board of directors or the executive board may use the said authorisation. Which period shall not exceed thirty-eight months.
The total number total of shares freely allotted shall not exceed 10% of the share capital. II. - The chairman of the board of directors, the general manager, the acting general managers, the members of the
executive board or the chief executive of a joint-stock company may be allotted shares in the company in the same way as other staff members.
They may also be allotted shares in an associated company as provided for in Article L. 225-197-2, provided that the said company's shares are admitted to trading on a regulated market.
Shares may not be allotted to employees and executives who individually hold more than 10% of the share capital. Moreover, a free allotment of shares shall not result in individual employees and executives holding more than 10% of the share capital.
Article L225-197-2 (inserted by Finance Act 2005 No. 2004-1484 of 30 December 2004 Art. 83 I a Official Journal of 31 December 2004)
I. - Shares may be allotted, in the same way as those referred to in Article L. 225-197-1: 1. To the employees of companies or economic interest groups having at least 10% of their shares or voting rights
directly or indirectly held by the company allotting the shares; 2. Or the employees of companies or economic interest groups directly or indirectly holding at least 10% of the
capital or voting rights of the company allotting the shares; 3. Or the employees of companies or economic interest groups having at least 50% of their shares or voting rights
directly or indirectly held by a company which itself directly or indirectly holds at least 50% of the capital of the company allotting the shares.
Shares which are not admitted to trading on a regulated market can only be allotted as provided for above to employees of the company making the allotment or to those referred to in 1.
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COMMERCIAL CODE II. - Shares may also be allotted under the terms and conditions set forth in Article L. 225-197-1 by a company
which is directly or indirectly and solely or jointly controlled by a central body or by credit institutions affiliated thereto within the meaning of and pursuant to Articles L. 511-30 to L. 511-32 of the Monetary and Financial Code, to employees of the said companies and those of entities having more than 50% of their shares held directly or indirectly and solely or jointly by that central body or those credit institutions.
Article L225-197-3 (inserted by Finance Act 2005 No. 2004-1484 of 30 December 2004 Art. 83 I a Official Journal of 31 December 2004)
The rights deriving from the free allotment of shares are non-transferable until the end of the acquisition period. In the event of the beneficiary's death, his heirs may request allotment of the shares within six months of the date of
his death.
Article L225-197-4 (inserted by Finance Act 2005 No. 2004-1484 of 30 December 2004 Art. 83 I a Official Journal of 31 December 2004)
A special report informs the ordinary general meeting each year of the transactions carried out by virtue of the provisions of Articles L. 225-197-1 to L. 225-197-3.
The said report also indicates: - the number and value of the shares which have been freely allotted to each of those executives by the company
and the companies affiliated to it, as provided for in Article L. 225-197-2, relative to the duties and functions performed in the company during the year;
- the number and value of the shares which have been freely allotted during the year to each of those executives by controlled companies within the meaning of Article L. 233-16 relative to the duties and functions they perform.
The said report also indicates the number and value of the shares which, during the year, have been freely allotted by the company and by the companies or groups associated with it, as provided for in Article L. 225-197-2, to each of the ten non-executive employees of the company who received the highest number of freely allotted shares.
Article L225-197-5 (inserted by Finance Act 2005 No. 2004-1484 of 30 December 2004 Art. 83 I a Official Journal of 31 December 2004)
The ordinary general meeting of the company which has direct or indirect majority control of the company making the free allotment of shares is informed as provided for in Article L. 225-197-4.
Subsection 3 Capital write-offs Articles L225-198 to
L225-203
Article L225-198 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
Capital write-offs are effected by virtue of a stipulation in the articles of association or a decision of the extraordinary general meeting by making use of distributable sums within the meaning of Article L. 232-11. Such write-offs may only be effected through equal redemption of every share within a given category and do not entail any capital reduction.
The fully redeemed shares are known as dividend shares.
Article L225-199 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The fully or partially redeemed shares lose entitlement, pro tanto, to the first dividend referred to in Article L. 232-19 and to repayment of the nominal value. They retain all their other rights.
Article L225-200 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
When the capital is divided either into capital shares and fully or partially redeemed shares or into unequally redeemed shares, the general meeting of shareholders may decide, applying the procedure used to amend the articles of association, to convert the fully or partially redeemed shares into capital shares.
To that end, it makes provision for a compulsory deduction to be made from the portion of the company's profits, for one or more financial years, that relates to those shares in respect of the redeemed amount of the shares to be converted, after payment of the first dividend or any cumulative preferred dividend to which the partially redeemed shares may give entitlement.
Article L225-201 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The shareholders may be authorised, in the same circumstances, to pay the company the redeemed amount of their shares and, where applicable, the first dividend or the cumulative preferred dividend for the elapsed portion of the then current financial year and, where appropriate, the previous financial year.
Article L225-202 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The decisions referred to in Articles L. 225-200 and L. 225-201 are subject to ratification by the special meetings of each shareholder category having the same rights.
Article L225-203
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COMMERCIAL CODE (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The board of directors or the executive board, as applicable, makes the necessary amendments to the articles of association, insofar as the said amendments correspond materially to the actual results of the transactions referred to in Articles L. 225-200 and L. 225-201.
Subsection 4 Capital reductions Articles L225-204 to
L225-205
Article L225-204 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
A capital reduction is authorised or decided by the extraordinary general meeting, which may delegate to the board of directors or the executive board, as applicable, all powers required to effect it. Under no circumstances shall it jeopardise equality among the shareholders.
An auditors' report on the planned transaction is sent to the company's shareholders within a time limit determined in a Conseil d'Etat decree. The meeting deliberates on the auditors' report which presents their assessment of the reasons and arrangements for the reduction.
When the board of directors or the executive board, as applicable, is duly empowered to proceed with the reduction by the general meeting, it draws up a report thereon which must be published and makes the appropriate amendment to the articles of association.
Article L225-205 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
When the meeting approves a capital reduction plan which is not motivated by losses, the representative of the general body of bondholders and creditors whose debt predates the date on which the minutes of the meeting were filed at the court registry, may raise an objection to the reduction within a time limit stipulated in a Conseil d'Etat decree.
A court decision may reject the objection or order either that the debts be repaid or that guarantees be provided if the company offers them and they are deemed to be sufficient.
The capital reduction procedure shall not commence during the time limit for raising an objection, nor, where applicable, before a decision on first hearing has been given on any objection raised.
If the judge of original jurisdiction grants the objection, the capital reduction procedure is immediately halted until sufficient guarantees are provided or until the debts are repaid. If he rejects it, the reduction procedure may recommence.
Subsection 5 Subscription, purchase or taking pledge of their own shares by companies Articles L225-206 to
L225-217
Article L225-206 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
I. - The company is prohibited from subscribing its own shares, either directly or through a person acting in their own name but on the company's behalf.
The founders, or, in the case of a capital increase, the members of the board of directors or the executive board, as applicable, are required, as provided for in Article L. 225-251 and the first paragraph of Article L. 225-256, to pay up any shares subscribed by the company in violation of the first paragraph.
When the shares have been subscribed by a person acting in their own name but on the company's behalf, that person is obliged to pay up the shares, jointly and severally with the founders or, as applicable, the members of the board of directors or the executive board. The said person is, moreover, deemed to have subscribed those shares for his own account.
II. - The purchase by a company of its own shares is authorised in the circumstances and pursuant to the terms indicated in Articles L. 225-207 to L. 225-217.
The purchasing of shares by a person acting on behalf of the company is prohibited unless the said person is an investment service provider or a member of a regulated market acting as provided for in I of Article 43 of Act No. 96-597 of 2 July 1996 on the modernisation of financial activities.
Article L225-207 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
A general meeting which has decided a capital reduction not motivated by losses may authorise the board of directors or the executive board, as applicable, to purchase a specified number of shares in order to cancel them.
Article L225-208 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004) (Finance Act 2005 No. 2004-1484 of 30 December 2004 Art. 83 I b Official Journal of 31 December 2004)
Companies which allot shares to their employees in the context of a profit-sharing scheme, those which allot their shares as provided for in Articles L. 225-197-1 to L. 225-197-3, and those which grant share options as provided for in Articles L. 225-177 et seq, may repurchase their own shares for such purposes. The shares must be allotted, or the options must be granted, within one year of the repurchase.
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COMMERCIAL CODE Article L225-209 (Act No. 2003-7 of 3 January 2003 Art. 50 II Official Journal of 4 January 2003) (Order No. 2004-604 of 24 June 2004 Art. 23, Art. 51 IX Official Journal of 26 June 2004) (Act No. 2004-1484 of 30 December 2004 Art. 83 I b Finance for 2005 Official Journal of 31 December 2004) (Act No. 2005-842 of 26 July 2005 Art. 27 Official Journal of 27 July 2005)
The general meeting of a company whose shares are admitted to trading on a regulated market may authorise the board of directors or the executive board, as applicable, to purchase a number of shares representing up to 10% of the company's capitaL.The general meeting defines the purposes and terms of the transaction, as well as its ceiling. Such authorisation may not be given for a period longer than eighteen months. The works council is informed of the resolution adopted by the general meeting.
A special annual report informs the general meeting of the execution of the share purchase transactions it has authorised and specifies, for each purpose, the number and price of the shares thus acquired, the volume of the shares used and any reallocations thereof to other purposes.
The board of directors may delegate to the general manager or, with his agreement, to one or more assistant general managers, the powers required to execute such transactions. The executive board may delegate to its chairman or, with his agreement, to one or more of its members, the powers required to execute such transactions. The persons thus designated report to board of directors or the executive board on the use made of that power as determined by the said boards.
The acquisition, assignment or transfer of the said shares may be effected by any means. Shares representing up to 10% of the company's capital may be cancelled every twenty-four months. The company reports to the Financial Markets Council each month on the purchases, assignments, transfers and cancellations thus effected. The Financial Markets Council brings this information to the attention of the public.
Companies which enable their employees to participate in the benefits of their expansion by allocating their own shares to them, those which allocate their shares as provided for in Articles L225-197-1 to L225-197-3 and those which plan to grant stock options to their employees may use for such purposes some or all of the shares acquired as provided for above. They may also offer their own shares to them as provided for in II of Article L225-196 and in Articles L443-1 et seq of the Labour Code.
The number of shares the company acquires and retains for possible subsequent use for payment or exchange purposes within the framework of a merger, demerger or contribution cannot exceed 5% of its capitaL.These provisions apply to redemption schedules submitted to general meetings for approval from 1 January 2006 onwards.
In the event of shares purchased being cancelled, the capital reduction is authorised or decided by an extraordinary general meeting, which may delegate full powers to effect such cancellation to the board of directors or the executive board, as applicable. A special report on the planned transaction, drawn up by the auditors, is sent to the company's shareholders within a time limit determined in a Conseil d'Etat decree.
Article L225-210 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The company shall not hold, either directly or through a person acting in their own name but on the company's behalf, more than 10% of the total of its own shares, or more than 10% of any given category. The said shares must be in registered form and be fully paid up when purchased. Failing this, the members of the board of directors or the executive board, as applicable, are required, as stipulated in Article L. 225-251 and the first paragraph of Article L. 225-256, to pay up the shares.
The acquisition of the company's shares shall not have the effect of reducing the share capital to an amount below that of the capital plus the non-distributable reserves.
The company must have reserves, in addition to the statutory reserve, of an amount at least equal to the value of all the shares it holds.
The shares held by the company do not give entitlement to dividends and are stripped of voting rights. In the event of the capital being increased by share subscriptions in cash, the company may not exercise the
preferential subscription right itself. The general meeting may decide not to take account of such shares when determining the preferential subscription rights attached to the other shares. Failing this, the rights attached to the shares held by the company must be either sold on the stock market or distributed among the shareholders in proportion to their individual rights before the close of the subscription period.
Article L225-211 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The company or person responsible for administration of its securities shall keep registers of the purchases and sales made pursuant to Articles L. 225-208 and L. 225-209, as stipulated in a Conseil d'Etat decree.
The board of directors or the executive board, as applicable, must indicate in the report referred to in Article L. 225-100 the number of shares bought and sold during the financial year pursuant to Articles L. 225-208 and L. 225-209, the average prices of the purchases and sales, the trading commission, the number of shares registered in the company's name at the close of the financial year, their value based on the buying price, their nominal value, the reasons for the purchases made and the fraction of the capital that they represent.
Article L225-212 (Act No. 2003-706 of 1 August 2003 Art. 46 I 1, V 1 Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
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COMMERCIAL CODE Companies shall declare the transactions that they envisage carrying out pursuant to the provisions of Article L.
225-209 to the Financial Markets Authority, and shall report their acquisitions to it as soon as they are made. The Financial Markets Authority may request them to provide any explanation or proof in this regard which it
considers necessary. If such requests are not complied with, or if it finds that the transactions breach the provisions of Article L. 225-209,
the Financial Markets Authority may take all necessary measures to prevent execution of orders transmitted directly or indirectly by such companies.
NB: Act No. 2003-706 of 1 August 2003 article 46 V 1 and 2: 1. All references to the Stock Exchange Commission and the Disciplinary Board for Financial Management are
replaced with a reference to the Financial Markets Authority; 2. All references to the Stock Exchange Commission's Rules and the General Regulations of the Financial Markets
Council are replaced with a reference to the General Regulations of the Financial Markets Authority.
Article L225-213 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The provisions of Articles L. 225-206 and L. 225-209 do not apply to fully paid-up shares acquired subsequent to a general transfer of assets or following a court decision.
The shares must nevertheless be sold within two years of the date of acquisition if the company holds more than 10% of its capital. Upon expiry of that period, they must be cancelled.
Article L225-214 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
Shares held in violation of Articles L. 225-206 to L. 225-210 must be sold within one year of their subscription or acquisition. Upon expiry of that period, they must be cancelled.
Article L225-215 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
The company is prohibited from taking pledge of its own shares, either directly or through a person acting in their own name but on the company's behalf.
Shares taken in pledge by the company must be returned to their owner within one year. They may be returned within two years if the transfer of the pledge to the company results from a general transfer of assets or a court decision. Failing this, the contract of pledge is automatically null and void.
The prohibition referred to in the present article shall not apply to the ordinary transactions of credit institutions.
Article L225-216 (Act No. 2001-152 of 19 February 2001 Art. 29 3 Official Journal of 20 February 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
A company shall not advance funds, grant loans or grant sureties to enable a third party to subscribe or purchase its own shares.
The provisions of the present article do not apply to the ordinary transactions of credit institutions or transactions carried out to enable employees to buy shares in the company, one of its subsidiaries or a company included in a group savings scheme as provided for in Article L. 444-3 of the Labour Code.
Article L225-217 (Order No. 2004-604 of 24 June 2004 Art. 51 IX Official Journal of 26 June 2004)
Articles L. 225-206 to L. 225-216 are applicable to investment certificates.
SECTION V Supervision of public limited companies Articles L225-218 to
L225-242
Article L225-218 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003) (Law No 2003-706 of 1 August 2003 Article 104 (I) Official Gazette of 2 August 2003)
In each company, the auditing function is performed by one or more auditors.
Article L225-219 I.- No person may act as an auditor unless they is enrolled in an official list to be prepared for that purpose. II.- An Order to be approved by the Conseil d'Etat shall fix the structure of the auditors' profession. It shall in
particular determine: 1. The method by which the list is prepared and revised, which shall be the prerogative of regional registration
boards, and, at appeal, a National Registration Board the composition of which is specified in Article L.225-220; 2. The conditions of registration in the list; 3. The disciplinary system, which shall be the prerogative of regional disciplinary boards, and, at appeal, a National
Disciplinary Authority, as mentioned in Article L.225-221; 4. The conditions upon which auditors shall be grouped into professional associations.
Article L225-220 I.- Every regional registration board must include:
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COMMERCIAL CODE 1. A judge of the Cour d'appel, as chairman; 2. A judge of a Tribunal de grande instance [Tribunal de grande instance] of the jurisdiction of the Cour d'appel, as
deputy chairman; 3. A judge of the Tribunal de grande instance of Local Government Auditors; 4. A member of the Tribunaux de commerce; 5. A professor of law, economics or management; 6. A person qualified in the field of business management; 7. A representative of the Minister of Economy and Finance; 8. A member of the Regional Society of Auditors. II.- Decisions of the Regional Registration Boards may be referred to a National Registration Board on appeal. The
National Board must include: 1. A judge of the Civil and Criminal jurisdiction system, as chairman; 2. A judge of the Court of Auditors; 3. A professor of law, economics or management; 4. A person qualified in the field of business management; 5. A representative of the Minister of Economy and Finance; 6. A member of the Tribunaux de commerce; 7. Two auditors. III.- If a vote is tied between members of the Regional or National Board, the chairman shall have the casting vote. IV.- Members of the Regional Boards and the National Board and their deputies, in equal numbers and chosen from
the same categories, shall be appointed in accordance with conditions to be laid down by an Order approved by the Conseil d'Etat. With regard to the auditors, they shall be appointed on the proposal of their regional societies or their national society respectively.
Article L225-221 The Regional Registration Board shall be given the status of a regional disciplinary board to rule in disciplinary
proceedings taken against an auditor who is a member of a regional society, wherever the acts of which they is accused may have been committed.
The National Registration Board shall be given the status of a regional disciplinary board to rule on appeals against decisions of the regional disciplinary boards.
A judge of the civil and criminal jurisdiction system belonging to the Parquet at local or national level shall act as Procureur de la République on each regional or national disciplinary board. The said judges shall be appointed by the Minister for Justice.
Article L225-222 The functions of an auditor shall be incompatible: 1. With any activity or act of such a nature as to affect their independence; 2. With any paid employment; nevertheless, an auditor may give instruction in the skills of their profession or occupy
a paid post in a firm or company of auditors or accountants; 3. With any commercial activity, whether exercised directly or through an intermediary.
Article L225-223 Within a month of being enrolled in the list referred to in Article L.225-219, every auditor must take an oath in the
Cour d'appel having jurisdiction over their locality, to discharge the duties of their profession honourably and with integrity and to observe the laws and cause them to be observed.
Article L225-224 The following may not be auditors of a public limited company: 1. Founders, contributors in kind, holders of special privileges, directors or members of the management or
supervisory board, as the case may be, of the company or its subsidiaries as defined in Article L.233-1; 2. Relatives of the persons referred to in sub-paragraph 1 by blood or marriage up to and including the fourth
degree of kinship; 3. Directors, members of the management or supervisory board, and, if applicable, spouses of directors or of
members of the management or supervisory board holding one tenth of the company's capital or a company of which the company owns one tenth of the capital;
4. Persons who, directly or indirectly or through an intermediary, receive from those mentioned in sub-paragraph 1 of this Article, or from the company or any company to which sub-paragraph 3 above applies, any salary, wages or remuneration whatsoever in respect of any activity other than that of an auditor; this provision shall not apply either to complementary professional activities carried on abroad or to specific review missions carried out by the auditor on behalf of the company in companies consolidated or intended to be consolidated therewith. Auditors may receive remuneration from the company for temporary missions with limited objectives, carried out in the course of their duties, provided that the said missions are assigned to them by the company at the request of a public authority;
5. Companies or firms of auditors where one of their partners, shareholders or directors is in one of the situations described in sub-paragraph 1, 2, 3 or 4;
6. Spouses of persons who receive any salary, wages or remuneration in respect of a permanent activity other than that of auditor either from the company or its directors or members of its management or supervisory board, or from companies owning one tenth of the company's capital or of which the company owns one tenth of the capital,;
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COMMERCIAL CODE 7. Firms or companies of auditors where the spouse of one of their directors, or of the partner or shareholder acting
as auditor on behalf of the company, is in one of the situations described in sub-paragraph 6.
Article L225-225 Auditors may not be appointed as directors, managing directors or members of the management of the companies
they audit within five years of relinquishing their functions. The same prohibition shall apply to partners, shareholders or directors of a firm or company of auditors.
They shall not exercise their functions within the same period in companies holding 10% of the capital of the company they audit or in a company of which the latter holds 10% of the capital at the date when they relinquish the functions of an auditor.
Article L225-226 Persons who have been directors, managing directors, members of the management, managers or paid employees
of a company may not be appointed as auditors of the said company within five years of relinquishing their posts. They may not be appointed within the same period as auditors in companies holding 10% of the capital of the
company in which they held their posts or in a company of which the latter held 10% of the capital at the date when they relinquish their posts.
The prohibitions referred to in this Article for the persons mentioned in the first sub-paragraph shall apply to firms or companies of auditors of which the said persons are partners, shareholders or directors.
Article L225-227 Decisions taken in the absence of a legally appointed auditor, or on a report by auditors appointed or remaining in
office in breach of the provisions of Articles L.225-219 and L.225-224 shall be void. An action to have such a decision declared void shall be extinguished if the said decisions are confirmed by a general meeting on a report by legally appointed auditors.
Article L225-228 (Law No 2003-706 of 1 August 2003 Article 105 Official Gazette of 2 August 2003)
The auditors are proposed for appointment by the general meeting in a draft resolution from the board of directors or the supervisory board or, in the circumstances defined in Section 3 of the present Chapter, the shareholders. If the company makes use of public issues, the board of directors chooses the auditors which it plans to propose, but the general manager and the assistant general manager do not participate in the voting if they are directors.
If the auditor has verified the contribution and merger operations of the companies which it controls within the meaning of subparagraph II of Article L. 233-16 for the two preceding financial years, the draft resolution referred to in the previous paragraph makes reference to that fact.
Save for the circumstances envisaged in Articles L. 225-7 and L. 225-16, the auditors are appointed by the ordinary general meeting.
One or more deputy auditors, whose task it is to replace the incumbent auditors in the event of refusal, unavailability, resignation or death, are appointed by the ordinary general meeting. The functions of a deputy auditor called upon to replace the incumbent cease upon expiry of the latter's term of office unless the unavailability is of a temporary nature. If this is the case, when the incumbent becomes available again he resumes his duties after the next general meeting called to approve the accounts has taken place.
Companies which are obliged to publish consolidated accounts pursuant to the provisions of the present Title are required to appoint at least two auditors.
The auditors carry out a joint examination of the accounting practices, in accordance with the instructions laid down in a code of professional standards established pursuant to the sixth paragraph of Article L. 821-1. A code of professional standards also determines the principles that govern the distribution of the tasks to be carried out by each auditor in the accomplishment of their mission.
Article L225-229 (Law No 2003-706 of 1 August 2003 Article 107 Official Gazette of 2 August 2003)
The auditors are appointed for six financial years. Their functions expire after the ordinary general meeting called to approve the accounts for the sixth financial year.
The auditor appointed by the meeting to replace another remains in office only until his predecessor's term of office has expired.
If the meeting should fail to elect an auditor, any shareholder may ask the court to appoint one after duly informing the chairman of the board of directors or the chairman of the executive board. The remit thus conferred ceases when one or more auditors have been appointed by the general meeting.
When an auditing firm is taken over by another auditing firm, the acquiring firm shall maintain the remit entrusted to the acquired firm until it expires.
Contrary to the provisions of the first paragraph, however, the controlled firm's first general meeting held subsequent to the acquisition may deliberate on the maintenance of the remit, after hearing the auditor.
Article L225-230 (Law No 2001-420 of 15 May 2001 Article 114 (1) Official Gazette of 16 May 2001)
One or more shareholders representing at least 5% of the share capital, the works council, the ministère public and, in companies issuing offers to the public, the Commission des opérations de bourse [Securities and Investments Board]
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COMMERCIAL CODE may, within time limits and in accordance with conditions to be fixed by an Order approved by the Conseil d'Etat, apply to the Court for an Order for the withdrawal, on reasonable grounds, of one or more auditors appointed by the general meeting.
Such an application may also be made by an association meeting the requirements laid down in Article L.225-120. Where such an application is granted, a new auditor shall be appointed by an order of the Court. they shall remain
in office until the auditor appointed by the general meeting shall take office.
Article L225-231 (Law No 2001-420 of 15 May 2001 Article 114 (3) Official Gazette of 16 May 2001)
An association meeting the requirements laid down in Article L.225-120, or one or more shareholders representing at least 5% of the share capital, either individually or as a group of any kind, may submit written questions to the chairman of the board of directors or the management on one or more of the company's management operations, and also, if appropriate, those of companies it controls for the purposes of Article L.223-3. In the latter case, the application must be evaluated in the light of the group's interests. The reply must be sent to the auditors.
If no reply shall have been received within a month, or if the information contained in the reply is unsatisfactory, the said shareholders may make an ex parte application to a Judge sitting in emergency interim proceedings for an Order appointing one or more experts to submit a report on one or more management transactions.
The ministère public, the works council, and, in companies issuing offers to the public, the Commission des opérations de bourse may likewise make an ex parte application to a Judge sitting in emergency interim proceedings for an Order appointing one or more experts to submit a report on one or more management transactions.
If the application is granted, the Court order shall determine the extent of the experts' instructions and powers. The company may be ordered to pay their fees.
The report shall be sent to the applicant, the ministère public, the works council, the auditors and the board of directors or management, as the case may be, and also, in companies issuing offers to the public, to the Commission des opérations de bourse. The said report must also be annexed to the auditors' report prepared for the next general meeting and must be similarly published.
Article L225-232 (Law No 2001-420 of 15 May 2001 Article 114 (1) Official Gazette of 16 May 2001)
One or more shareholders representing at least 5% of the share capital, or an association meeting the requirements laid down in Article L.225-120, may submit written questions to the chairman of the board of directors or the management twice a year on any matter of such a nature as to threaten the continued operation of the company. The reply must be sent to the auditors.
Article L225-233 (Law No 2001-420 of 15 May 2001 Article 114 (1) Official Gazette of 16 May 2001)
In case of default or inability to act, the auditors may, on an ex parte application by the board of directors, the management, the works council, one or more shareholders representing at least 5% of the share capital or the general meeting, be relieved of their duties by a Court order before the normal date of expiration of their term of office, in accordance with conditions to be laid down by an Order approved by the Conseil d'Etat.
Such an application may also be made by the ministère public, and, in companies issuing offers to the public, by the Commission des opérations de bourse. It may also be made by an association meeting the requirements laid down in Article L.225-120.
Article L225-234 (Law No 2003-706 of 1 August 2003 Article 106 Official Gazette of 2 August 2003)
When it is proposed to the meeting that an auditor's remit should not be renewed upon expiry, the auditor is entitled to address the general meeting if he so requests, without prejudice to the provisions of Article L. 822-14.
Article L225-235 (Act No. 2003-706 of 1 August 2003 Art. 112, Art. 120 Official Journal of 2 August 2003) (Act No. 2005-842 of 26 July 2005 Art. 9 II Official Journal of 27 July 2005) (Order No. 2005-1126 of 8 September 2005 Art. 20 III Official Journal of 9 September 2005)
In a report attached to the report referred to in the second paragraph of Article L225-100, the auditors present their observations on the report referred to in Article L225-37 or Article L225-68, as applicable, concerning the internal auditing procedures relating to the preparation and processing of accounting and financial information.
Article L225-236 The auditors must at all times of the year, together or separately, make all such checks and inspections as they may
consider appropriate and may demand the production in situ of all such documents as they shall consider of assistance in the performance of their duties, and in particular any contracts, agreements, books, accounting documents and minute books.
In order to carry out their inspections, the auditors may, under their own responsibility, obtain the assistance of such experts or assistants as they may choose. They must notify the company of the names of any such experts or assistants, who shall have the same rights of investigation as the auditors.
The said investigations may be carried out either at the company's premises or at those of parent or subsidiary companies as defined in Article L.233-1.
They may also be carried out pursuant to the second sub-paragraph of Article L.223-235 at the premises of all
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COMMERCIAL CODE companies included in the consolidation.
The auditors may also collect all such information as may be of assistance in the performance of their duties at the premises of third parties that have carried out operations on the company's behalf. This right of information shall not, however, extend to the disclosure of any papers, contracts and documents held by third parties, unless sanctioned by a Court order. The rule of professional secrecy may not be invoked against the auditors except by lawyers and other legal officials.
Article L225-237 The auditors must inform the board of directors or management, as the case may be, of: 1. The controls and inspections they have carried out and their various random checks; 2. Any items in the balance sheet and other accounting documents which they consider require amendment,
together with any relevant comments on the evaluation methods used to prepare the said documents; 3. Any irregularities or inaccuracies they may have discovered; 4. The conclusions to be drawn from their aforementioned comments and amendments as regards the results for
the financial year, as compared with those achieved the previous year.
Article L225-238 (Law No 2003-706 of 1 August 2003 Article 108 Official Gazette of 2 August 2003)
The auditors are invited to all meetings of the board of directors or the executive board which examine or close off the annual or interim accounts, and also to all shareholders' meetings.
Article L225-239 Auditors' fees shall be payable by the company. They shall be fixed by methods to be laid down by an Order
approved by the Conseil d'Etat. The Regional Disciplinary Board, and, on appeal, the National Disciplinary Board shall be competent to hear any
dispute relating to their remuneration.
Article L225-240 (Law No 2003-706 of 1 August 2003 Article 112 Official Gazette of 2 August 2003)
The auditors draw the attention of the next general meeting to any irregularities or inaccuracies they discover? while performing their remit.
Furthermore, they report any criminal acts which they become aware of to the Public Prosecutor and incur no liability in connection with such disclosures.
Article L225-241 Auditors shall be liable both to the company and to third parties for the damaging consequences of any negligent or
tortious acts they may commit in the performance of their duties. They shall not, however, be liable for any transmission or disclosure of information effected in the performance of their duties as defined in Articles L.234-1 and L.234-2.
They shall not be liable in civil law for any illegal acts committed by the directors or members of the management, unless, having been aware of the sad acts, they shall have failed to disclose the same in their report to the general meeting.
Article L225-242 Civil law actions against auditors shall be subject to the time limits specified in Article L.225-254.
SECTION VI Conversion of public limited companies Articles L225-243 to
L225-245-1
Article L225-243 Any public limited company may be converted to another legal form of legal person if, at the time of conversion, it
has been in existence for at least two years and if it has drawn up balance sheets for its first two financial years and had them approved by the shareholders.
Article L225-244 The decision to change the form of a public limited company shall be taken on a report by the company's auditors.
The report must certify that the equity capital is at least equal to the amount of the share capital. The conversion shall be subject, if necessary, to the approval of the meetings of bond holders and holders of
dividend or founders' rights. The decision to change the company's form must be published in such manner as shall be determined by an Order
approved by the Conseil d'Etat.
Article L225-245 Conversion into a general partnership shall require the agreement of all the partners. If such agreement is obtained,
the conditions laid down in Articles L.225-243 and the first sub-paragraph of Article L.225-244 shall not be required. Conversion into a limited partnership, with or without shares, shall be decided in accordance with the conditions laid
down for the amendment of the memorandum and articles of association and subject to the agreement of all the partners who agree to be active partners.
Conversion into a limited liability company shall be decided in accordance with the conditions laid down for the
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COMMERCIAL CODE amendment of the memorandum and articles of association for companies incorporated in that legal form.
Article L225-245-1 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 II Official Journal of 27 July 2005)
In the event of a public limited company being converted into a European company, the first paragraph of Article L225-244 is not applicable.
The company draws up a plan to convert the company into a European company. The said plan is filed at the clerk's office of the court having jurisdiction at the place where the company is registered and is published as provided for in a Conseil d'Etat decree.
One or more court-appointed conversion commissioners draw up a report to the converting company's shareholders, under their own responsibility, attesting that the shareholders' equity is at least equivalent to the authorised capitaL.They are subject to the incompatibilities referred to in Article L822-11.
Conversion into a European company is decided pursuant to the provisions of Articles L225-96 and L225-99.
SECTION VII Dissolution of public limited companies Articles L225-246 to
L225-248
Article L225-246 The premature dissolution of a company must be decided by a special shareholders’ meeting.
Article L225-247 The Tribunal de commerce may, on an application by any interested party, order the dissolution of a company, if it
has had less than seven shareholders for more than a year. It may allow a company a maximum period of six months to rectify the situation. It shall not make a dissolution order
if the said rectification takes place on the day judgment is given on the merits.
Article L225-248 If, as a result of losses duly recorded in the accounting documents, a company's equity capital falls below half of its
share capital, the board of directors or management, as the case may be, must call an special shareholders’ meeting within four months of the approval of the accounts revealing the said loss to decide whether the company should be prematurely dissolved.
If it is not decided to dissolve the company, the company must, by no later than the end of the second financial year after that in which the losses were recorded, and subject to the provisions of Article L.224-2, reduce its capital to a sum at least equal to that of any losses not imputed to reserves unless the equity capital shall have been restored to a figure at least equivalent to half the share capital within that time.
In either case, the decision of the general meeting shall be published in such manner as shall be determined by an Order approved by the Conseil d'Etat.
If no general meeting shall be held, or if the meeting shall not have been able to take a valid decision at the final time of asking, any interested party may make an ex parte application to the Court for an order that the company be dissolved. The same rule shall apply if the provisions of the second sub-paragraph above shall not have been observed. In any such case, the Court may grant the company a maximum period of six months to rectify the situation. It shall not make a dissolution order if the said rectification takes place on the day judgment is given on the merits.
The provisions of this Article shall not apply to companies undergoing judicial reorganisation or having the benefit of a recovery plan.
SECTION VIII Civil liability Articles L225-249 to
L225-257
Article L225-249 The founders of a company the incorporation of which is liable be held void, and its directors in office at the time the
said liability is incurred, may be held jointly and severally liable for any loss or damage to its shareholders or to third parties arising from the non-incorporation of the company.
Those of the shareholders whose contributions and privileges have not been examined and approved may similarly be held jointly and severally liable.
Article L225-250 Any action for liability based on the non-incorporation of the company must be brought within the time limits laid
down in Article 235-13.
Article L225-251 (Law No 2001-420 of 15 May 2001, Article 107 (6) and (7) Official Gazette of 16 May 2001)
The directors and managing director shall be individually or jointly and severally liable to the company or third parties either for infringements of the laws or regulations applicable to public limited companies, or for breaches of the memorandum and articles of association, or for tortious or negligent acts of management.
If more than one director, or more than one director and the managing director, have participated in the same acts, the Court shall determine the share to be contributed by each of them to the compensation awarded.
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COMMERCIAL CODE Article L225-252 (Law No 2001-420 of 15 May 2001, Article. 107 (8) Official Gazette of 16 May 2001)
Apart from actions for personal loss or damage, shareholders may either individually or in an association fulfilling the conditions laid down in Article L.225-120, or acting as a group in accordance with conditions to be laid down by an Order approved by the Conseil d'Etat, bring an action for liability on behalf of the company against its directors or managing director. The plaintiffs shall be authorised to sue for compensation for the full amount of the loss or damage suffered by the company, to which damages shall be awarded if necessary.
Article L225-253 (Law No 2001-420 of 15 May 2001, Article 107 (9) Official Gazette of 16 May 2001)
Any clause in the memorandum and articles of association the effect of which would be to make the exercise of any action subject to prior notice or to the consent of the general meeting, or to waive the right to any such action in advance, shall be deemed non-existent.
No decision of the general meeting shall have the effect of extinguishing an action for liability against the directors or managing director for a tortious or negligent act committed in the performance of their duties.
Article L225-254 (Law No 2001-420 of 15 May 2001, Article 107 (10) Official Gazette of 16 May 2001)
Any action for liability against the directors or managing director, either by an individual or individuals or by the company, must be brought within three years of the act or event causing the loss or damage, or, if the same was concealed, the discovery thereof. Nevertheless, where the act is defined as a criminal offence, the said period shall be extended to ten years.
Article L225-255 Where proceedings for judicial reorganisation or compulsory liquidation are brought pursuant to Title II of Book VI
relating to the judicial reorganisation and compulsory liquidation of companies, the persons referred to in the said provisions may be held liable for the debts of the company and shall be subject to prohibition and prohibition, in accordance with the conditions stipulated thereby.
Article L225-256 Where a company is subject to the provisions of Articles L.225-57 to L.225-93, the members of its management
shall be subject to the same liability as directors in the circumstances specified in Articles L.225-249 to L.225-255. Where proceedings for judicial reorganisation or compulsory liquidation are brought pursuant to Title II of Book VI
relating to the judicial reorganisation and compulsory liquidation of companies, the persons referred to in the said provisions may be held liable for the debts of the company and shall be subject to prohibition and prohibition, in accordance with the conditions stipulated thereby.
Article L225-257 Members of the supervisory board shall be liable for negligent or tortious acts committed by them in a personal
capacity in the performance of their duties. They shall incur no liability for acts of management or the result thereof. They may be held liable in civil law for criminal offences committed by members of the management if, having been aware thereof, they did not report the said offences to the general meeting.
The provisions of Articles L.225-253 and L.225-254 shall apply.
SECTION IX Public limited companies with worker participation Articles L225-258 to
L225-270
Article L225-258 It may be stipulated in the memorandum and articles of association of any public limited company that the company
has worker participation. Companies whose memorandum and articles of association do not contain such a stipulation may change their
legal form to that of companies partly owned by their employees, using the procedure laid down in Article L225-96. Companies partly owned by their employees shall be subject to the provisions of this section, irrespective of the
general rules applicable to public limited companies.
Article L225-259 Where the company exercises the power to issue employee shares, that fact must be stated in all deeds and
documents to be delivered to third parties by means of the words"à participation ouvrière"[with worker participation].
Article L225-260 The shares of the company shall consist: 1. Of capital shares or share coupons; 2. Of shares known as"employee shares".
Article L225-261 Employee shares shall be collectively owned by paid personnel (employees and workers), in the form of a workers'
commercial co-operative. The said co-operative must be exclusively formed by all paid employees who have been with the company for at least a year and are aged over eighteen. The loss of a paid job with the company shall result in the
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COMMERCIAL CODE loss by the employee of all their rights in the workers' co-operative, without compensation. The liquidated value of the rights in the company acquired during the previous financial year by the interested party before they left shall be calculated on the basis of the proportion of that period they spent in the company's service, and the provisions of Article 225-269.
Where a company is incorporated from the outset as a public limited company with worker participation, the memorandum and articles of association of the public limited company must provide for the setting aside of the shares allocated to collective ownership by employees until the end of the year. At the end of that period, the shares shall be delivered to the legally constituted co-operative.
Dividends allocated to workers and employees belonging to the workers' co-operative must be distributed between them according to the rules laid down by the memorandum and articles of association of the co-operative and the decisions of its general meetings. Nevertheless, the memorandum and articles of association of the public limited company must provide that, before any distribution of dividends, there shall be deducted from the profits, for the benefit of holders of capital shares, a sum corresponding to that which would be yielded, at such interest rate as they shall fix, by the capital paid.
In no circumstances shall employee shares be individually allocated to employees of the company who are members of the co-operative.
Article L225-262 Employee shares must be registered in the name of the workers' co-operative, and non-transferable throughout the
existence of the public limited company with worker participation.
Article L225-263 Members of the workers' co-operative shall be represented at general meetings of the public limited company by
representatives elected by the said members at a meeting of the co-operative. Representatives so elected must be chosen from among the members. The number of representatives shall be
fixed by the memorandum and articles of association of the public limited company. The number of votes held by the said representatives at each general meeting of the public limited company shall
be fixed according to the number of votes held by the other shareholders present or represented, depending on the proportion of employee shares to capital shares that results from the application of the company's memorandum and articles of association. It shall be determined at the start of each general meeting according to the details in the attendance sheet.
Representatives present shall likewise share the votes attributed to them equally between themselves. Any remainder shall be allocated to the most senior representatives.
The general meeting of the workers' co-operative shall meet every year within a period fixed by the memorandum and articles of association, or, if they contain no such provisions, within four months after the general meeting of the public limited company.
Article L225-264 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
Each participant at the labour cooperative's general meeting has one vote. The memorandum and articles of association may nevertheless allocate more than one vote to the participants,
commensurate with their pay, within the limit of a maximum number of votes based on the numerical correlation between an individual's annual pay, established on the basis of the accounts as of the close of the previous financial year, and the lowest annual remuneration paid by the company to employees aged above eighteen years.
The memorandum and articles of association may make provision for the participants to be divided into colleges, each specific to a personnel category, with each college electing its representative(s) and the agreement of each college, with majorities as specified in the memorandum and articles of association, being necessary for amendments to the cooperative's memorandum and articles of association and other decisions indicated in the memorandum and articles of association.
Article L225-265 The general meeting of the workers' co-operative shall take valid decisions only if, at the first time of asking, two
thirds of the members of the co-operative are present or represented at the meeting. The memorandum and articles of association shall fix the requisite quorum for a meeting held at the second time of asking. If the memorandum and articles of association contain no such provisions, the quorum shall not be less than half the members of the co-operative, present or represented.
The general meeting shall take decisions on a simple majority of votes cast. Where a secret ballot is held, blank votes shall not be included in the count.
Nevertheless, for amendments to the memorandum and articles of association and other decisions listed thereby, the quorum shall not be less than half the members of the co-operative. Furthermore, the same decisions shall be taken on a two-thirds majority of votes cast. Where a secret ballot is held, blank votes shall not be included in the count.
Article L225-266 In the event of a legal action, the representatives elected at the last general meeting shall appoint one or more from
among their number to represent the members. If no representatives have yet been elected, or if none of the representatives is a member of the workers' co-operative, an election of special representatives shall be held, in the manner and in accordance with the conditions laid down in the first sub-paragraph of Article L.225-263 and in Articles
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COMMERCIAL CODE L.225-264 and L.225-265.
Article L225-267 Nevertheless, general meetings of public limited companies with worker participation called to decide on
amendments to be made to the memorandum and articles of association or proposals that the company shall continue in existence beyond the term fixed for its duration, or that it be dissolved before the expiration of the said term, shall be validly constituted and able to take valid decisions only provided that they include a number of shareholders representing three quarters of the share capital. The memorandum and articles of association may decide otherwise.
Where a decision of the general meeting includes a change in the rights attached to employee shares, the said decision shall not be final until it has been ratified by a general meeting of the workers' co-operative.
Article L225-268 The board of directors of a public limited company with worker participation must include one or more
representatives of the workers' co-operative. The said representatives shall be elected by the general meeting of shareholders and chosen from among the representatives who represent the co-operative at the said general meeting. Their number shall be fixed according to the ratio of employee shares to capital shares. They shall be appointed for the same term as the other directors and shall similarly be eligible for re-election. Nevertheless, their term of office shall end if they cease to be paid employees of the company and, therefore, members of the co-operative. If the board of directors consists of only three members, it must include at least one member of the co-operative.
Article L225-269 In the event of dissolution, the company's share capital shall not be distributed among the shareholders until the
capital shares have been fully amortised. The proportion representing employee shares shall then be distributed, in accordance with decision taken by a
general meeting of the workers' co-operative called for that purpose, between members and former members with at least ten years' consecutive service with the company, or at least an uninterrupted period of service equivalent to half the duration of the company, who have left the company for one of the following reasons: voluntary retirement or official retirement with pension rights, sickness or disablement involving incapacitation for the post previously occupied, or redundancy caused by abolition of jobs or a reduction in personnel.
Nevertheless, former members who fulfil the conditions set out in the preceding sub-paragraph shall be included in the distribution only as to a share corresponding to their length of service reduced by a tenth of the total thereof for every year since they ceased to be employed by the company.
The dissolution of the public limited company shall entail the dissolution of the workers' co-operative.
Article L225-270 I.- Where a public limited company with worker participation finds itself in the situation referred to in Article
L.225-248, and it is not decided to dissolve it, an special shareholders’ meeting may decide, within the period fixed in the final sub-paragraph of the same Article, to amend the memorandum and articles of association to provide for the loss of the status of a public limited company with worker participation, and consequently the dissolution of the workers' co-operative, notwithstanding the provisions of the second sub-paragraph of Article L.227-267 and any provision to the contrary in the memorandum and articles of association.
Nevertheless, the implementation of any such decision shall be subject to the existence of a collective company agreement with one or more unions or associations, representative of employees for the purposes of Article L.132-2 of the Employment Code, providing for the dissolution of the workers' co-operative. Where there is an existing collective company agreement, covering the same subject-matter and entered into in accordance with the same conditions, dating from before the entry into force of Law No 94-679, of 8 August 1994, introducing miscellaneous economic and financial provisions, the stipulations contained in this sub-paragraph shall be considered to have been complied with.
II.- Where a workers' co-operative is dissolved pursuant to the provisions of sub-paragraph I above, compensation shall be paid to the members and former members mentioned in the second sub-paragraph of Article L.225-269.
The amount of the said compensation, the calculation of which must specifically take the nature and specific scope of the rights attached to employee shares into account, shall be fixed by an special shareholders’ meeting of shareholders of the public limited company after consulting the representatives of the workers' co-operative and in the light of a report to be provided by an independent expert appointed by methods to be laid down by an Order approved by the Conseil d'Etat.
III.- On the decision of an special shareholders’ meeting of shareholders of the public limited company, compensation may take the form of an exclusive allocation of shares to the members and former members mentioned in the second sub-paragraph of Article L.225-269.
The said shares may be created by deduction at source from available premiums and reserve funds. By way of exception to the provisions of Article L.225-206, a public limited company may also acquire its own shares in order to allocate them, within a period of a year from the date of acquisition, to the members and former members mentioned in the second sub-paragraph of Article L.225-269.
Shares so allocated may not be disposed of within a period of three years after the date of dissolution of the workers' co-operative.
Notwithstanding the provisions of the preceding sub-paragraph, an special shareholders’ meeting of shareholders of the public limited company may decide to assign the management of the shares in question to a company investment trust governed by the provisions of Article 21 of Law No 88-1201, of 23 December 1988, relating to collective security investment institutions and creating debt investment trusts, specifically and exclusively constituted for that purpose by no
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COMMERCIAL CODE later than the date of allocation of the shares. In any such case, the proportion of the funds that constitute its assets may not be disposed of within the period mentioned in the preceding sub-paragraph. The rules governing the said funds shall be approved by a collective employees' agreement.
IV.- For the purposes of the provisions of this Article, decisions taken by the general shareholders' meeting of the public limited company shall automatically be binding on every shareholder and every bearer or holder of bonds or other securities giving immediate or future access to its share capital.
V.- The compensation referred to in sub-paragraph II shall be distributed between those entitled thereto, taking into account the length of their service with the company, their length of membership of the workers' co-operative and their pay levels.
Following the dissolution of a workers' co-operative, and within six months of the decision of an extraordinary general shareholders' meeting of the public limited company fixing the amount and form of compensation, the said compensation shall be distributed in accordance with the decisions taken by the general meeting of the workers' co-operative on a proposal by its representatives. Should the said distribution not take place within six months, it shall be implemented by a liquidator appointed by the Presiding Judge of the Tribunal de commerce of the jurisdiction within which the company's registered office is situated.
The provisions of the third sub-paragraph of Article L.225-169 shall apply in the case referred to in the present sub-paragraph V.
VI.-The compensation referred to in sub-paragraph II or, if appropriate, the value of the shares allocated pursuant thereto shall not be counted as income for the purposes of the employment and social security legislation. The said items shall not be used when calculating the basis of calculation for any taxes, charges or deductions affecting wages, salaries or income, subject to the provisions of Article 94A of the General Tax Code.
CHAPTER VI Partnerships limited by shares Articles L226-1 to
L226-14
Article L226-1 Partnerships limited by shares, whose capital is divided into shares, shall be formed by one or more managing
partners, who shall have the capacity of traders and who shall be indefinitely and jointly liable for the partnership’s debts, and limited partners who shall have the capacity of shareholders and who shall support the losses only up to the amount of their contributions. The number of limited partners may not be less than three.
Where they are compatible with the special provisions specified by this chapter, the rules on limited partnerships and public limited companies, with the exception of Articles L.225-17 to L.225-93, shall apply to partnerships limited by shares.
Article L226-2 The initial manager or managers shall be appointed by the articles of association. They shall carry out the formation
formalities with which the founders of public limited companies are charged by Articles L.225-2 to L.225-16. During the existence of the partnership, unless otherwise specified in the articles of association, the manager or
managers shall be appointed by the routine shareholders’ meeting with the agreement of all the managing partners. The manager, whether or not a partner, shall be dismissed in accordance with the conditions specified by the
articles of association. In addition, the manager may be dismissed by the Tribunal de commerce for a legitimate reason, at the request of
any partner or the partnership. Any clause to the contrary shall be deemed to be unwritten.
Article L226-3 The articles of association shall specify, in order to carry out the duties of manager, an age limit which, failing an
express provision, shall be fixed at sixty-five years. Any appointment made in breach of the provisions specified in the above paragraph shall be invalid. When managers reach the age limit, they shall be deemed to automatically resign.
Article L226-4 The routine shareholders’ meeting shall appoint, in accordance with the conditions fixed by the articles of
association, a supervisory board composed of at least three shareholders. In order for its appointment to be valid, managing partners may not be members of the supervisory board.
Shareholders who have the capacity of managing partner may not participate in appointing the members of this board. Unless otherwise specified in the articles of association, the rules on the appointment and term of office of directors
of public limited companies shall apply.
Article L226-5 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The memorandum and articles of association must make provision, in regard to membership of the supervisory board, for an upper age limit which applies either to all the council's members or to a specific percentage among them.
Failing an express provision in the memorandum and articles of association, the number of members of the supervisory board having reached the age of seventy years cannot exceed one third of the members of the supervisory board in office.
Any appointment made in breach of the provisions of the previous paragraph is null and void.
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COMMERCIAL CODE Failing an express provision in the memorandum and articles of association which stipulates a different procedure,
when the age limit for supervisory board membership imposed by the Articles or by the law has been exceeded, the oldest member of the supervisory board is automatically deemed to have resigned.
Article L226-6 The routine shareholders’ meeting shall appoint one or more auditors.
Article L226-7 The manager shall be invested with the widest powers in order to act in all circumstances on behalf of the
partnership. In relations with third parties, the partnership shall be committed even by acts of the manager which do not fall
within the partnership’s object, unless the latter proves that the third party knew that the act exceeded this object or that the third party could not be unaware of this given the circumstances. It is excluded that the publication alone of the articles of association is sufficient to constitute this proof.
The clauses of the articles of association limiting the powers of the manager which result from this article shall not be binding on third parties.
In the event of multiple managers, these shall separately hold the powers specified in this article. The objection made by one manager to the acts of another manager shall be null and void with regard to third parties, unless it is established that they knew about this.
Subject to the provisions of this chapter, the manager shall have the same obligations as the board of directors of a public limited company.
Article L226-8 Any remuneration other than that specified in the articles of association may be allocated to the manager only by
the routine shareholders’ meeting. This may only occur with the agreement of the managing partners given unanimously, unless otherwise specified.
Article L226-9 The supervisory board shall carry out the permanent supervision of the partnership’s management. It shall have, to
this end, the same powers as the auditors. It shall submit to the annual routine shareholders’ meeting a report in which it shall indicate, in particular, the
irregularities and inaccuracies identified in the annual accounts and, where applicable, the consolidated financial statements for the financial year.
It shall receive, at the same time as the auditors, the documents made available to the latter. It may convene the general meeting of shareholders.
Article L226-10 (Law No 2001-420 of 15 May 2001 Article 111 (3) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 123 (I) (6) Official Gazette of 2 August 2003)
The provisions of Articles L. 225-38 to L. 225-43 are applicable to agreements entered into, either directly or through an intermediary, between the company and one of its executives, a member of its supervisory board, one of its shareholders holding a fraction of the voting rights greater than 10% or, in the case of a corporate shareholder, the company which controls it within the meaning of Article L. 233-3. These provisions are likewise applicable to agreements in which such a person is indirectly involved.
They are also applicable to agreements entered into between a company and a firm if one of the company's managers or a member of its supervisory board is the owner, an indefinitely liable partner, a manager, a director or a general manager of that firm or a member of its executive board or supervisory board.
The authorisation referred to in the first paragraph of Article L. 225-38 is given by the supervisory board.
Article L226-11 The amendment of the articles of association shall require, unless otherwise specified, the agreement of all the
managing partners. The amendment of the articles of association resulting from an increase in capital shall be noted by the managers.
Article L226-12 The provisions of Articles L.225-109 and L.225-249 shall apply to the managers and members of the supervisory
board. The provisions of Articles L.225-52, L.225-251 and L.225-255 shall apply to the managers, even where they are not
partners.
Article L226-13 The members of the supervisory board shall not incur any liability due to the acts of the management and the result
thereof. They may be declared civilly liable for the misdemeanours committed by the managers if they were aware of these
and did not reveal them to the general meeting. They shall be liable for personal faults committed in the performance of their mandate.
Article L226-14 The conversion of the limited partnership that issues shares into a public limited company or a limited liability
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COMMERCIAL CODE company shall be decided by the special shareholders’ meeting of shareholders, with the agreement of the majority of the managing partners.
CHAPTER VII Simplified joint-stock companies Articles L227-1 to
L227-20
Article L227-1 (Act No 420 of 15 May 2001, Article 101, Official Gazette of 16 May 2001)
A simplified joint-stock company may be established by one or more persons who shall support its losses only up to the amount of their contributions.
When this company consists of one person only, the latter shall be referred to as the sole proprietor. The sole proprietor shall exercise the powers conferred on the partners when this chapter specifies collective decision-making.
Where they are compatible with the special provisions specified by this chapter, the rules on public limited companies, with the exception of Articles L.225-17 to L.225-126 and L.225-243, shall apply to the simplified joint-stock company. In order to apply these rules, the powers of the board of directors or its chairman shall be exercised by the chairman of the simplified joint-stock company or by those of its directors which the articles of association specify for this purpose.
Article L227-2 The simplified joint-stock company may not make a public offering.
Article L227-3 The decision to convert into a simplified joint-stock company shall be taken unanimously by the partners.
Article L227-4 If one person holds all the shares in a simplified joint-stock company, the provisions of Article 1844-5 of the Civil
Code on winding-up proceedings shall not apply.
Article L227-5 The articles of association shall fix the conditions in accordance with which the company is managed.
Article L227-6 (Law No 2003-706 of 1 August 2003 Article 118 Official Gazette of 2 August 2003)
The company is represented in its dealings with third parties by a chairman appointed as prescribed in the memorandum and articles of association. The chairman is invested with the broadest powers to act on behalf of the company in all circumstances, within the purview of the corporate mission.
In its dealings with third parties, the company is bound even by acts of the chairman which do not come within the purview of the company's corporate mission, unless it can prove that the third party knew that a specific action was extraneous to that mission or, given the circumstances, could not have been ignorant of that fact, and mere publication of the memorandum and articles of association does not suffice to constitute such proof.
The memorandum and articles of association may stipulate the circumstances in which one or more persons other than the chairman, having the title of general manager or assistant general manager, may exercise the powers conferred on the chairman by the present Article.
Provisions in the memorandum and articles of association which limit the chairman's powers cannot be raised against third parties.
Article L227-7 When a legal person is appointed chairman or director of a simplified joint-stock company, the directors of said legal
person shall be subject to the same conditions and obligations and shall incur the same civil and criminal liabilities as if they were chairman or director in their own name, without prejudice to the joint liability of the legal person which they manage.
Article L227-8 The rules establishing the liability of members of the board of directors and management of public limited
companies shall apply to the chairman and directors of the simplified joint-stock company.
Article L227-9 (Act No 420 of 15 May 2001, Article 125, Official Gazette of 16 May 2001)
The articles of association shall determine the decisions which must be taken collectively by the partners in the forms and in accordance with the conditions which they specify.
However, the powers conferred on the extraordinary and routine shareholders’ meetings of public limited companies in terms of the increase, amortisation or reduction of capital, merger, division, dissolution, conversion into another form of company, appointment of auditors, annual accounts and profits shall, in accordance with the conditions specified by the articles of association, be exercised collectively by the partners.
In companies consisting of only one partner, the annual report, annual accounts and, where applicable, consolidated financial statements shall be made up by the chairman. The sole proprietor shall approve the accounts, following a report from the auditor, within six months of the end of the financial year. The sole proprietor may not delegate their powers. Their decisions shall be listed in a register.
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COMMERCIAL CODE Decisions taken in breach of the provisions of this article may be cancelled at the request of any interested party.
Article L227-10 (Law No 2001-420 of 15 May 2001 Article 111 (4) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 123 (I) (6) Official Gazette of 2 August 2003)
The auditor presents a report to the partners on any agreement entered into, either directly or through an intermediary, between the company and its chairman, one of its executives, one of its shareholders holding a fraction of the voting rights greater than 10% or, in the case of a corporate shareholder, the company which controls it within the meaning of Article L. 233-3.
The partners give a decision on that report. Agreements which are not approved nevertheless produce their effects, and the onus is on the person concerned
and, possibly, the chairman and the other members of the management, to bear any consequences which are prejudicial to the company.
Contrary to the provisions of the first paragraph, when the company has but a single partner, only agreements entered into either directly or through an intermediary between the company and its manager are recorded in the decisions register.
Article L227-11 (Law No 2001-420 of 15 May 2001 Article 111 (13) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 123 (I) (4) Official Gazette of 2 August 2003)
When agreements relating to current operations entered into under normal terms and conditions are of no significance to any party, given their objective or their financial implications, they are reported to the auditor. Any partner is entitled to have sight of them.
Article L227-12 The prohibitions specified in Article L.225-43 shall apply, in accordance with the conditions determined by this
article, to the chairman and directors of the company.
Article L227-13 The articles of association of the company may specify the inalienability of the shares for a period not exceeding ten
years.
Article L227-14 The articles of association may subject any assignment of shares to prior approval by the company.
Article L227-15 Any assignment carried out in breach of the clauses of the articles of association shall be invalid.
Article L227-16 In accordance with the conditions which they determine, the articles of association may specify that a partner may
be required to assign the shares held thereby. They may also specify the suspension of the non-financial rights of this partner until the latter has carried out this
assignment.
Article L227-17 The articles of association may specify that partner companies whose control is altered within the meaning of Article
L.233-3 must, on this alteration, inform the simplified joint-stock company of this. The latter may decide, in accordance with the conditions fixed by the articles of association, to suspend the exercise of the non-financial rights of these partners and to exclude the latter.
The provisions of the above paragraph may be applied, in accordance with the same conditions, to partners who have acquired this capacity following a merger, division or dissolution operation.
Article L227-18 If the articles of association do not specify the terms for deciding the share assignment price when the company
implements a clause introduced pursuant to Articles L.227-14, L.227-16 and L.227-17, this price shall be fixed by agreement between the parties or, failing this, in accordance with the conditions specified in Article 1843-4 of the Civil Code.
When the shares are repurchased by the company, the latter shall be obliged to assign them within six months or to cancel them.
Article L227-19 The clauses of the articles of association referred to in Articles L.227-13, L.227-14, L.227-16 and L.227-17 may be
adopted or amended only with the unanimous agreement of the partners.
Article L227-20 Articles L.227-13 to L.227-19 shall not apply to companies consisting of only one partner.
CHAPTER VIII Securities issued by joint-stock companies Articles L228-1 to
L228-106
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COMMERCIAL CODE SECTION I Transferable securities: common provisions Articles L228-1 to
L228-6-3
Article L228-1 (Act No. 2001-420 of 15 May 2001 Art. 119 2 Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 24 Official Journal of 26 June 2004)
Joint-stock companies issue all transferable securities as indicated in the present Book. The transferable securities issued by joint-stock companies are described in Article L. 211-2 of the Monetary and
Financial Code. The transferable securities issued by joint-stock companies take the form of bearer securities or registered
securities, with the exception of companies in respect of which the law or the articles of association impose the registered form only for some or all of the capital.
Notwithstanding any agreement to the contrary, any holder whose securities form part of an issue comprising both bearer securities and registered securities is entitled to convert his securities to the other form.
However, the conversion of registered securities is not possible in the case of companies in respect of which the law or the articles of association impose the registered form for some or all of the capital.
Such transferable securities, regardless of their form, must be registered in the name of their holder as provided for in II of Article 94 of the 1982 Finance Act (No. 81-1160 of 30 December 1981).
However, if the company's capital securities have been admitted to trading on a regulated market and their holder is not domiciled in France within the meaning of Article 102 of the Civil Code, any intermediary may be registered on behalf of that holder. Such registrations may be made in the form of a joint account or several individual accounts each corresponding to one holder.
When it opens its account with the issuing company or with the authorised account-keeping financial intermediary, the registered intermediary is required to declare its status, in the manner determined by decree, as an intermediary holding securities on behalf of others.
For assignment of transferable securities admitted to trading on a regulated market or transferable securities not admitted to trading on a regulated market but registered with an authorised intermediary participating in a settlement-delivery system referred to in Article L. 330-1 of the Monetary and Financial Code, the transfer of title takes place as provided for in Article L. 431-2 of the said code. In other cases, the transfer of title takes place when the transferable securities are registered in the buyer's account in the manner stipulated in a Conseil d'Etat decree.
Article L228-2 (Act No. 2001-420 of 15 May 2001 Art. 119 2 Official Journal of 16 May 2001) (Act No. 2003-706 of 1 August 2003 Art. 125 1 Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 25 Official Journal of 26 June 2004)
I. - For the purpose of identifying the holders of bearer securities, the issuing company's articles of association may authorise it to request the central custodian administering its securities, at any time in return for payment of a fee, to provide it with the name or trading name, nationality, year of birth or incorporation, and address of the holders of securities which, immediately or eventually, confer the right to vote at its own shareholders' meetings, the number of securities held by each of them and any restrictions applicable thereto.
The aforementioned central custodian gathers the said information from the book-keeping institutions affiliated to it, which are required to provide it within a time limit determined in a Conseil d'Etat decree. The central custodian then provides that information to the company within five working days of receiving it.
If the time limit determined by decree is not respected, or if the information provided by the book-keeping institution is incomplete or erroneous, the central custodian may apply to the presiding judge of the Tribunal de grande instance for a summary ruling for performance of the duty to provide information, under pain of a coercive fine.
II. - Having followed the procedure described in I, and in the light of the list provided by the aforementioned central custodian, the issuing company is entitled to request, either through the said central custodian or directly, in the manner and subject to the penalties stipulated in Article L. 228-3-2, that any persons included in the said list whom the company suspects of being registered on behalf of third parties provide the information relating to the holders of securities indicated in I.
When such persons have intermediary status, they are required to disclose the identity of the owners of the securities. The information is provided directly to the book-keeping authorised financial intermediary, who is responsible for communicating it to the issuing company or the aforementioned central custodian, as applicable.
III. - The company shall not pass on the information thus obtained, even free of charge. Any violation of this provision shall incur the penalties referred to in Article 226-13 of the Penal Code.
Article L228-3 (Act No. 2001-420 of 15 May 2001 Art. 119 2 Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 XI Official Journal of 26 June 2004)
In the case of securities in registered form giving immediate or eventual access to the capital, the registered intermediary referred to in Article L. 228-1 is required, within a time limit determined in a Conseil d'Etat decree, to disclose the identity of the owners of those securities and the number of securities held by each of them whenever so requested by the issuing company or its representative.
The special rights attached to registered shares, and specifically those referred to in Articles L. 225-123 and L.
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COMMERCIAL CODE 232-14, may only be exercised by a registered intermediary as provided for in Article L. 228-1 if the information provided by that intermediary facilitates verification of compliance with the conditions applicable to exercise of the said rights.
Article L228-3-1 (Act No. 2001-420 of 15 May 2001 Art. 119 2 Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 XI Official Journal of 26 June 2004)
I. - Whenever the issuing company considers that certain holders whose identity has been communicated to it are acting on behalf of third-party owners of the securities, it is entitled to ask the said holders to disclose the identity of the owners of those securities and the number of securities held by each of them, as provided for respectively in the first paragraph of II of Article L. 228-2 for bearer securities and in the first paragraph of Article L. 228-3 for registered securities.
II. - Having done so, and without prejudice to the obligation to report significant equity holdings imposed by Articles L. 233-7, L. 233-12 and L. 233-13, the issuing company may ask any legal entity holding shares in excess of one fortieth of its capital or voting rights to inform it of the identity of the persons who directly or indirectly hold more than one third of that legal entity's share capital or the voting rights exercised at its general meetings.
Article L228-3-2 (Act No. 2001-420 of 15 May 2001 Art. 119 2 Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 XII Official Journal of 26 June 2004)
An intermediary having fulfilled the obligations stipulated in the seventh and eighth paragraphs of Article L. 228-1 may, pursuant to a general securities management remit, transfer to a meeting a share owner's vote or power as defined in the third paragraph of that same article
Before transferring powers or votes to a general meeting, the registered intermediary referred to in Article L. 228-1 is required, at the request of the issuing company or its representative, to provide a list of any non-resident owners of the shares to which those voting rights are attached and the number of shares held by each of them. The said list is supplied as provided for in Articles L. 228-2 or L. 228-3.
The vote or the power issued by an intermediary who has either not been declared as such pursuant to the eighth paragraph of Article L. 228-1 or the second paragraph of the present article, or has not disclosed the identity of the owners of the securities pursuant to Articles L. 228-2 or L. 228-3, shall not be counted.
Article L228-3-3 (Act No. 2001-420 of 15 May 2001 Art. 119 2 Official Journal of 16 May 2001) (Order No. 2004-604 of 24 June 2004 Art. 51 XIII Official Journal of 26 June 2004)
If the person who is the subject of a request pursuant to Articles L. 228-2 to L. 228-3-1 has failed to provide the information within the time limits stipulated in those articles or has provided incomplete or erroneous information regarding his own status or the owners of the securities or the number of securities held by each of them, the shares or securities giving immediate or eventual access to the capital relative to which the said person is registered are stripped of voting rights for any meeting of shareholders held prior to the date on which the identification information is corrected, and payment of the corresponding dividend is deferred until that date.
Moreover, in the event of the registered person deliberately failing to apply the provisions of Articles L. 228-1 to L. 228-3-1, the court having jurisdiction at the place where the company has its registered office may, at the request of the company or of one or more shareholders holding at least 5% of the capital, order the total or partial suspension of the voting rights attached to the shares to which the order relates for a total period not exceeding five years, and deferral of the corresponding dividend payment for the same period.
Article L228-3-4 (Law No 2001-420 of 15 May 2001 Article 119 (2) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 46 (V) (1), Article 125 (2) Official Gazette of 2 August 2003)
Any person who participates in any capacity in the management or administration of the central custodian of financial instruments, and likewise any person employed by it, by the issuing company or by the registered intermediary, who, through his professional activities, has knowledge of the information referred to in Articles L. 228-1 to L. 228-3-2 is bound by professional secrecy under the terms and conditions and subject to the penalties provided for in Articles 226-13 and 226-14 of the Penal Code. Professional secrecy cannot be invoked against either the Financial Markets Authority or the judicial authorities.
NB: Law No. 2003-706 of 1 August 2003, Article 46 V 1 and 2: 1. The references to the Stock-Exchange Regulatory Body and the Financial Management Disciplinary Council have
been replaced with the references to the Financial Markets Authority; 2. The references to the regulations of the Stock-Exchange Regulatory Body and the general regulations of the
Derivatives Markets Regulatory Body are replaced by the reference to the general regulations of the Financial Markets Authority.
Article L228-4 (Order No. 2004-604 of 24 June 2004 Art. 26 Official Journal of 26 June 2004)
Under pain of being declared null and void, the issuing of participating shares or founder's shares is prohibited. However, participating shares or founder's shares issued before 1 April 1967 shall continue to be governed by the
laws applicable thereto.
Article L228-5
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COMMERCIAL CODE With regard to the company, the securities shall be indivisible, subject to the application of Articles L.225-110 and
L.225-118.
Article L228-6 Notwithstanding any stipulations to the contrary in the articles of association, companies which have carried out
either exchanges of securities following an operation to merge or divide, reduce the capital, consolidate or divide and compulsorily convert bearer securities into registered securities, or distributions of securities allocated to the reserves or linked to a capital reduction, or distributions or allotments of free shares may, following the decision of the board of directors, management or managers, sell, under the terms fixed by a Conseil d'Etat decree, the securities whose issue has not been requested by their legal successors, provided that they have carried out, at least two years in advance, the publication according to the terms fixed by said decree.
From the date of this sale, the former securities or the former rights to the distributions or allotments shall, as necessary, be cancelled and their holders may thereafter claim only for the distribution in cash of the net proceeds from the sale of the unclaimed securities.
Article L228-6-1 (inserted by Order No. 2004-604 of 24 June 2004 Art. 27 Official Journal of 26 June 2004)
In companies whose securities are admitted to trading on a regulated market, an extraordinary general meeting of shareholders which has authorised a merger or demerger may decide that, upon expiry of a period which shall not exceed a limit determined in a Conseil d'Etat decree, and consistent with the date of registration in their account of the whole number of shares allotted, a global sale of the unallotted shares corresponding to the rights attached to fractional shares shall take place under terms and conditions determined by the said decree, with a view to distributing the funds among the parties concerned.
Article L228-6-2 (inserted by Order No. 2004-604 of 24 June 2004 Art. 27 Official Journal of 26 June 2004)
The non-financial rights attached to transferable securities registered in a joint account are exercised by one or other of the joint holders pursuant to terms and conditions laid down in the agreement on opening of the account.
Article L228-6-3 (inserted by Order No. 2004-604 of 24 June 2004 Art. 27 Official Journal of 26 June 2004)
Securities whose holders, despite compliance with the formalities for convening general meetings, are either unknown to the book-keeper or have not responded to notices to attend for over ten years, may be sold pursuant to the procedure referred to in Article L. 228-6. Such sales shall take place upon expiry of a period determined in a Conseil d'Etat decree after fulfilment of the publication requirements stipulated in the said article, provided that the book-keeper has taken all necessary measures during that period to make contact with the holders or their assigns in the manner stipulated in that same decree.
SECTION II Shares Articles L228-7 to
L228-29-10
Article L228-7 (Order No. 2004-604 of 24 June 2004 Art. 28 Official Journal of 26 June 2004)
Shares paid in cash are those whose amount is paid up in cash or by offsetting, those which are issued following capitalisation of reserves, profits or share premiums and those whose payment derives partly from capitalisation of reserves, profits or share premiums and partly from cash payment. The last-mentioned must be fully paid up on subscription.
Without prejudice to the specific rules applicable to shares deriving from a merger or demerger, all other shares are shares issued for a consideration other than cash.
Article L228-8 The face value of shares or subdivided shares may be fixed by the articles of association. This option applies to all
share issues.
Article L228-9 The share paid in cash shall be registered until it is fully paid up.
Article L228-10 (Order No. 2004-604 of 24 June 2004 Art. 29 Official Journal of 26 June 2004)
Shares are not tradable until the company is entered in the register of companies. When a capital increase is effected, the shares are tradable with effect from its completion.
The trading of share promises is prohibited unless it relates to shares yet to be created in respect of which admission to trading on a regulated market has been applied for, or to an increase in the capital of a company whose existing shares are already admitted to trading on a regulated market. In the latter case, trading is valid only if it is carried out subject to the condition precedent of completion of the capital increase. Failing this express indication, the said condition shall be presumed.
Article L228-11
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COMMERCIAL CODE (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004)
Upon formation of the company or during its existence, preference shares may be created, with or without voting rights, which confer special rights of all kinds, either temporarily or permanently. Such rights are defined in the articles of association pursuant the provisions of Articles L. 225-10 and L. 225-122 to L. 225-125.
The voting rights may be amended for a determined or determinable period. They may also be suspended for a determined or determinable period, or may be removed.
Non-voting preference shares shall not represent more than one half of the share capital, and in companies whose shares are admitted to trading on a regulated market, not more than one quarter of the share capital.
Any issue having the effect of increasing the proportion beyond these limits may be cancelled.
Article L228-12 (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004)
A decision to issue, redeem or convert preference shares can only be taken by an extraordinary general meeting of shareholders on the basis of a special report from the auditors. It may delegate such power as provided for in Articles L. 225-129 to L. 225-129-6.
The terms and conditions of redemption or conversion of preference shares may also be determined in the articles of association.
At any time during the financial year then current, and at the first meeting held subsequent to its close, at the latest, the board of directors or the executive board shall record the number and nominal value of the shares, if any, issued from the conversion of preference shares during the previous financial year and make the necessary amendments to the articles of association relative to the amount of the share capital and the number of securities that represent it.
The chairman of the executive board or the general manager may, if duly empowered by the executive board or the board of directors, proceed with such transactions at any time during the financial year, and within the time limit set in a Conseil d'Etat decree at the latest.
Article L228-13 (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 XXVII Official Journal of 10 December 2004)
The special rights referred to in Article L. 228-11 may be exercised in the company which directly or indirectly holds more than one half of the capital of the issuing company or in a company in which the issuing company directly or indirectly holds more than one half of the capital.
The issue must then be authorised by the extraordinary general meeting of the company issuing the preference shares and by that of the company in which the rights are exercised.
The auditors of the companies concerned must draw up a special report. NB: These provisions are applicable in Mayotte, New Caledonia and the Wallis and Futuna Islands.
Article L228-14 (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004)
Preference shares may be converted into ordinary shares or preference shares of a different category. When preference shares are converted into shares which bring about a capital reduction not motivated by losses,
creditors whose debt predates the filing at the court registry of the minutes of the general meeting or, in the event of delegation, of the board meeting or executive board meeting, may raise an objection to the conversion within the time limit and under the terms stipulated in a Conseil d'Etat decree.
The capital conversion procedure shall not commence during the time limit for raising an objection, nor, where applicable, before a decision on first hearing has been given on any objection raised.
Article L228-15 (Act No. 2003-7 of 3 January 2003 Art. 50 II Official Journal of 4 January 2003) (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004)
The creation of such shares gives rise to application of Articles L. 225-8, L. 225-14, L. 225-147 and L. 225-148 relating to special privileges if the shares are issued in favour of one or more shareholders designated by name. In such cases, the valuer of contributions in kind referred to in the said articles is an auditor who has not carried out an assignment in the company within the past five years and is not then carrying out such an assignment.
The holders of shares which are to be converted into preference shares in the new category shall not, under pain of the meeting's deliberations being declared null and void, participate in the vote on the creation of that category, and the shares they hold shall not be taken into account for calculation of the quorum and the majority, unless all the shares are to be converted into preference shares.
Article L228-16 (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004)
In the event of a change to the capital or a capital write-off, the extraordinary general meeting shall determine the effects that those procedures shall have on the rights of the preference share holders.
The said effects may also be recorded in the articles of association.
Article L228-17 (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004)
In the event of a merger or demerger, the preference shares may be exchanged for shares in the companies benefiting from the transfer of assets which confer equivalent special rights, or in accordance with a specific exchange
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COMMERCIAL CODE parity which takes account of the special rights waived.
In the event of no exchange for shares conferring equivalent special rights taking place, the merger or demerger is subject to the approval of the special meeting referred to in Article L. 225-99.
Article L228-18 (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004)
The dividend paid, where applicable, to the holders of preference shares may be distributed in the form of capital securities under terms and conditions laid down by the extraordinary general meeting or in the articles of association.
Article L228-19 (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004)
The holders of preference shares, together at a special meeting, are empowered to instruct one of the company's auditors to draw up a special report on the company's compliance with the special rights attached to the preference shares. The said report is distributed to those shareholders at a special meeting.
Article L228-20 (Order No. 2004-604 of 24 June 2004 Art. 31 Official Journal of 26 June 2004)
When the preference shares are admitted to trading on a regulated market, they may be redeemed or repaid, at the initiative of the company or the holder, if the market lacks liquidity, as provided for in the articles of association.
Article L228-21 Shares may continue to be traded after the company is dissolved and until the end of the winding-up.
Article L228-22 The cancellation of the company or an issue of shares shall not lead to the nullity of the trading which occurred prior
to the cancellation decision, if the securities are regular in form. However, the purchaser may bring an action to reinforce a guarantee against the seller.
Article L228-23 (Order No. 2004-604 of 24 June 2004 Art. 32 Official Journal of 26 June 2004)
In a company whose capital securities are not admitted to trading on a regulated market, the assignment of capital securities or transferable securities giving access to the capital, whatever the reason therefor, may be made subject to the company's approval by a clause in the articles of association. The said clause is inapplicable in the event of succession, settlement under a marriage contract or assignment to a spouse, an ascendant or a descendant.
A consent clause may only be stipulated if the securities are registered by virtue of the law or the articles of association.
When the articles of association of a company which does not make public offerings reserve shares for the company's employees, a consent clause prohibited by the provisions of the first paragraph above may be stipulated, provided that the object of the said clause is to prevent the said shares from being devolved upon or assigned to persons who are not employees of the company.
Any assignment effected in violation of a consent clause in the articles of association is null and void.
Article L228-24 (Order No. 2004-604 of 24 June 2004 Art. 33 Official Journal of 26 June 2004)
If a consent clause is stipulated, the application for approval indicating the assignee's name, forenames and address and the number of shares or transferable securities giving access to the capital in respect of which assignment is envisaged, and the price offered, is sent to the company. Approval is given either in writing or through the absence of any reply within three months of the application being made.
If the company does not approve the proposed assignee, the board of directors, the executive board or the executives, as applicable, shall, within three months of refusal being notified, arrange for the shares or transferable securities giving access to the capital to be purchased either by a shareholder or a third party, or, with the assignor's consent, by the company in order to reduce the capital. Failing agreement between the parties, the price of the capital securities or transferable securities giving access to the capital is determined as provided for in Article 1843-4 of the Civil Code. The assignor may at any time relinquish assignment of his shares or transferable securities giving access to the capital. Any clause to the contrary in Article 1843-4 of the said code is deemed not to exist.
If, upon expiry of the time limit stipulated in the previous paragraph, the purchase has not been effected, approval is deemed to have been granted. The time limit may nevertheless be extended by a court decision at the company's request.
Article L228-25 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
If, notwithstanding the provisions of Article L. 228-24, trading takes place through the intermediary of an investment service provider, the company must exercise its right of approval provided for in the memorandum and articles of association within thirty trading days.
If the company does not approve the buyer, the board of directors, the executive board or the partners are required, within thirty trading days of the date of notification of the rejection, to arrange the sale of the shares, either to a shareholder or to a third party, or to the company itself to reduce the capital.
The price applied is that ?originally negotiated; however, the sum paid to the non-approved buyer cannot be lower than that which results from applying the quoted market price of the day on which approval was refused or, if there was
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COMMERCIAL CODE no quotation on that day, that of the most recent quotation prior to that rejection.
If the purchase is not completed when the time allotted in the second paragraph above has elapsed, approval is deemed to have been given.
Article L228-26 If the company has given its consent to a share pledge plan in accordance with the conditions specified in the first
paragraph of Article L.228-24, this consent shall include approval of the transferee in the event of the forced sale of the pledged shares according to the provisions of the first paragraph of Article 2078 of the Civil Code, unless the company prefers, after the assignment, to immediately repurchase the shares in order to reduce its capital.
Article L228-27 If the shareholder fails to pay up, at the times fixed by the board of directors, management or managers, as
applicable, the sums remaining to be paid on the amount of the shares subscribed thereby, the company shall send the shareholder formal notice.
At least one month after this formal notice has not produced any effect, the company shall bring legal proceedings, without needing any court authorisation, to sell these shares.
Quoted shares shall be sold on the stock market. Unquoted shares shall be sold at public auctions. The defaulting shareholder shall owe or receive the difference. The terms of application of this paragraph shall be determined by a Conseil d'Etat decree.
Article L228-28 The defaulting shareholder, the successive transferees and the subscribers shall be jointly liable for the unpaid-up
amount of the share. The company may bring an action against them, either before or after the sale, or at the same time, in order to obtain both the sum due and the reimbursement of the expenses incurred.
The person who pays off the company shall have recourse for the whole amount against the successive holders of the share. The final burden of the debt shall be incumbent on the last of these.
Two years after the transfer of a securities account to another account, any subscriber or shareholder who has assigned their title shall cease to be liable for payments not yet requested.
Article L228-29 On the expiration of the period fixed by a Conseil d'Etat decree, the shares for which payments due have not been
made shall cease to confer the right of admission to shareholders’ meetings and the right to vote at these and shall be deducted when calculating the quorum.
The right to dividends and the preferential right to subscribe to increases in capital attached to these shares shall be suspended.
After payment of the sums due, in principal and interest, the shareholder may request the payment of non-prescribed dividends. The shareholder may not bring an action on account of the preferential right to subscribe to an increase in capital after the expiration of the period fixed for exercising this right.
Article L228-29-1 (inserted by Order No. 2004-604 of 24 June 2004 Art. 34 Official Journal of 26 June 2004)
Shares having a nominal value lower than or equal to a value determined in a Conseil d'Etat decree which are not admitted to trading on a regulated market may be combined notwithstanding any contrary provision of the law or in the articles of association. Such combination are decided by general meetings of shareholders deliberating in the manner prescribed for amendments to the articles of association and pursuant to the provisions of Article L. 228-29-2.
Article L228-29-2 (inserted by Order No. 2004-604 of 24 June 2004 Art. 34 Official Journal of 26 June 2004)
The share combinations referred to in Article L. 228-29-1 entail the obligation for the shareholders to effect the purchases or assignments of shares necessary to complete them.
The nominal value of the combined shares shall not exceed a value determined in a Conseil d'Etat decree. To facilitate such transactions, the company must obtain a commitment from one or more shareholders, before the
general meeting makes a decision, to provide consideration for both the purchases and the sales pertaining to the fractional shares or for the applications intended to complete the number of securities belonging to each shareholder concerned for a period of two years, at the price set by the meeting.
Article L228-29-3 (inserted by Order No. 2004-604 of 24 June 2004 Art. 34 Official Journal of 26 June 2004)
Upon expiry of the time limit set by the decree referred to in Article L. 228-29-7, shares which have not been presented for combination lose their voting rights and their dividend entitlement is suspended.
The decree referred to in the first paragraph may grant a further time limit to the shareholders who made the commitment referred to in the third paragraph of Article L. 228-29-2.
Dividends in respect of which payment has been suspended pursuant to the first paragraph are, in the event of subsequent combination, paid to the owners of the old shares insofar as they are not subject to prescription.
Article L228-29-4 (inserted by Order No. 2004-604 of 24 June 2004 Art. 34 Official Journal of 26 June 2004)
When the owners of securities do not have free administration of their assets, the applications to exchange old securities and the purchases or assignments of fractional shares which are necessary to effect the combination are
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COMMERCIAL CODE treated as simple administrative acts unless the new securities are requested in bearer form in exchange for registered securities.
Article L228-29-5 (inserted by Order No. 2004-604 of 24 June 2004 Art. 34 Official Journal of 26 June 2004)
The new securities shall have the same characteristics and automatically confer the same rights in rem or liens as the old securities that they replace, without any formality being necessary.
The rights in rem and the pledges are automatically noted on the new securities allotted to replace the old securities thus encumbered.
Article L228-29-6 (inserted by Order No. 2004-604 of 24 June 2004 Art. 34 Official Journal of 26 June 2004)
If the company should fail to comply with Articles L. 228-29-1 or L. 228-29-2 or the rules relating to the taking of decisions by general meetings or the publication formalities determined by the decree referred to in Article L. 228-29-7, combination remains optional for the shareholders. The provisions of Article L. 228-29-3 cannot be applied to shareholders.
If the shareholder(s) who made the commitment referred to in Article L. 228-29-2 fail(s) to comply with it, the combinations may be cancelled. In such cases, the purchases and sales of fractional shares may be cancelled at the request of the shareholders who proceeded therewith or their assigns, with the exception of any defaulting shareholders, and without prejudice to any damages where appropriate.
Article L228-29-7 (inserted by Order No. 2004-604 of 24 June 2004 Art. 34 Official Journal of 26 June 2004)
A Conseil d'Etat decree determines the implementing provisions for Articles L. 228-29-1 to L. 228-29-6, including matters not addressed in Article L. 228-29-1 relating to the taking of decisions by general meetings of shareholders and the publication formalities associated with such decisions.
Subsection 1: General provisions
Article L228-29-8 (inserted by Order No. 2004-604 of 24 June 2004 Art. 35 Official Journal of 26 June 2004)
No new securities may be issued pursuant to the articles of the present section save for any which might be issued pursuant to decisions of general meetings taken prior to the entry into force of Order No. 2004-604 of 24 June 2004 reforming the legislation applicable to transferable securities issued by commercial companies and the extension to the Overseas Departments and Territories of provisions modifying the commercial legislation.
Article L228-29-9 (inserted by Order No. 2004-604 of 24 June 2004 Art. 35 Official Journal of 26 June 2004)
Failing application of Article L. 225-138, the holders of securities governed by the present section have a preferential subscription right on the preference shares referred to in Article L. 228-11 when they confer rights equivalent to those of the securities they hold.
Failing application of Article L. 225-138, the holders of securities governed by the present section have a preferential right to subscribe the transferable securities referred to in Article L. 228-91 when they give rise to an allotment of securities conferring rights equivalent to those of the securities they hold.
Article L228-29-10 (inserted by Order No. 2004-604 of 24 June 2004 Art. 35 Official Journal of 26 June 2004)
Non-voting preference shares and existing investment certificates are taken into account for calculation of the quotas referred to in Article L. 228-11.
Application of the provisions of the previous paragraph shall not impede maintenance of the rights of the holders of existing securities, however.
SECTION III Investment certificates Articles L228-30 to
L228-35-1
Article L228-30 (Order No. 2004-604 of 24 June 2004 Art. 35 I, Art. 36 I Official Journal of 26 June 2004)
The extraordinary general meeting of a joint-stock company or, in companies which do not have such meetings, the structure which performs the same function, may decide, on the basis of a report from the board of directors or the executive board, as applicable, and that of the auditors, to create, in a proportion which shall not exceed one quarter of the share capital, investment certificates and voting-rights certificates respectively representing the financial rights and other rights attached to the shares issued when a capital increase or a split of the existing shares takes place.
When a capital increase is effected, shareholders and holders of investment certificates, if any, benefit from a preferential right to subscribe to the investment certificates issued through the procedure applied to capital increases. The holders of investment certificates waive the preferential right at a special meeting convened and held pursuant to the rules of the extraordinary general meeting of shareholders. The voting-rights certificates are distributed among the shareholders and the holders of voting-rights certificates, if any, in proportion to their rights.
When a share split is effected, the offer to create investment certificates is made to all the shareholders at the same
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COMMERCIAL CODE time in proportion to their capital holdings. Upon expiry of a time limit set by the extraordinary general meeting, any unallotted creation capacity is distributed among the shareholders who have requested the benefit of such an additional distribution in proportion to their share of the capital and, in every case, consistent with their requests. Any balance remaining after the said distribution, is distributed by the board of directors or the executive board, as applicable.
The voting-rights certificate must be in registered form. The investment certificate is tradable. Its nominal value is equal to that of the shares. When the shares are divided,
the investment certificates are also divided. The voting-rights certificate may only be assigned if it is accompanied by an investment certificate. However, it may
also be assigned to the holder of the investment certificate. The assignment automatically entails reconstitution of the share in either case. The share is also automatically reconstituted when held by the holder of an investment certificate and a voting-rights certificate. The said holder must declare this to the company within fifteen days, failing which the share is stripped of its voting right until the situation is regularised and for one month thereafter.
A certificate shall not be issued for a fraction of a voting right. The general meeting determines the arrangements for issuing certificates for the rights attached to fractional shares.
In the event of a merger or demerger, the investment certificates and voting-rights certificates of a company which no longer exists may be exchanged for the shares of companies benefiting from the transfer of assets.
Article L228-31 (Order No. 2004-604 of 24 June 2004 Art. 35 I, Art. 36 I Official Journal of 26 June 2004)
The extraordinary general meeting of a company whose shares are admitted to trading on a regulated market and whose existing investment certificates represent 1% of the share capital at most may decide, on the basis of a report from the board of directors, to reconstitute the existing certificates as shares and those that confer special privileges as shares conferring the same advantages on their holders.
The extraordinary general meeting referred to in the previous paragraph deliberates in the manner prescribed for the approval of special privileges by Article L. 225-147 after a meeting of the holders of voting-rights certificates, convened and held pursuant to the rules for special meetings of shareholders, has approved the plan by a majority of 95% of the holders present or represented. The assignment is then made to the company, contrary to the sixth paragraph of Article L. 228-30, at the price set by the extraordinary general meeting referred to in the first paragraph of the present article.
The price referred to in the previous paragraph is determined pursuant to the terms and conditions set forth in 2 of Article 283-1-1 of Act No. 66-537 of 24 July 1966 relating to commercial companies.
The amount of compensation due to the unidentified holders is duly recorded. The reconstitution is effected through the assignment of the corresponding voting-rights certificates to the holders of
investment certificates, at no cost. To that end, the company may ask the holders of certificates to produce identification as indicated in Article L.
228-2, even if the articles of association make no express provision therefor.
Article L228-32 (Order No. 2004-604 of 24 June 2004 Art. 35 I, Art. 36 I Official Journal of 26 June 2004)
The holders of investment certificates may have sight of the company's documents in the same way as the shareholders.
Article L228-33 (Order No. 2004-604 of 24 June 2004 Art. 35 I, Art. 36 I, II Official Journal of 26 June 2004)
When a free distribution of shares takes place, new non-voting preference shares must be created with the same rights as the investment certificates and allotted to the owners of the old certificates free of charge in proportion to the number of new shares allotted for the old shares, unless some or all of the holders waive the benefit thereof.
Article L228-34 (Order No. 2004-604 of 24 June 2004 Art. 35 I, Art. 36 I, III Official Journal of 26 June 2004)
In the event of a capital increase in cash, with the exception of an increase reserved for the employees as provided for in Article L. 225-138-1, new non-voting preference shares shall be issued with the same rights as the investment certificates, the number thereof being calculated to ensure that the proportion of ordinary shares to investment certificates which existed prior to the increase is maintained after the increase, taking account of the said preference shares and assuming that the increase will be effected in full.
The owners of the investment certificates shall have a preferential irrevocable subscription right on the new preference shares proportionate to the number of securities that they own. At a special meeting convened and held pursuant to the rules for extraordinary general meetings of shareholders, the owners of the investment certificates may waive the said right. Unsubscribed preference shares are allotted by the board of directors or the executive board. The capital increase effected shall be founded on the fraction thereof which corresponds to the issue of shares. However, contrary to the provisions of the first paragraph above, when the owners of certificates have waived their preferential subscription right, new preference shares shall not be issued.
Article L228-35 (Order No. 2004-604 of 24 June 2004 Art. 35 I, Art. 36 I, IV Official Journal of 26 June 2004)
If convertible loan stock is issued, the holders of investment certificates shall have a preferential right to subscribe to them irrevocably proportionate to the number of securities that they hold. Their special meeting, convened and held
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COMMERCIAL CODE pursuant to the rules for extraordinary general meetings of shareholders, may waive that right.
The said stock may only be converted into non-voting preference shares having the same rights as the investment certificates.
Article L228-35-1 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 I, Art. 35 I, Art. 37 Official Journal of 26 June 2004)
Upon formation of the company or during its existence, preference shares may be created which confer advantages over all other shares, without prejudice to the provisions of Articles L. 225-122 to L. 225-125.
As an exception to Article L. 225-99, the articles of association or the issuance contract may state that a decision to convert preference shares into ordinary shares taken at an extraordinary general meeting shall not be binding on the holders of such shares.
SECTION IIIbis Non-voting preference shares Articles L228-35-2 to
L228-35-11
Article L228-35-2 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 II, Art. 35 I, Art. 38 Official Journal of 26 June 2004)
Non-voting preference shares may even be created as provided for in Articles L. 228-35-3 to L. 228-35-11 without prejudice to the provisions of Articles L. 225-122 to L. 225-126.
Article L228-35-3 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 III, Art. 35 I, Art. 38 Official Journal of 26 June 2004)
Non-voting preference shares may be created through a capital increase or through conversion of ordinary shares already issued. They may be converted into ordinary shares.
Non-voting preference shares shall not represent more than one quarter of the total share capital. Their nominal value is equal to that of the ordinary shares or, where applicable, the ordinary shares of one of the categories previously issued by the company.
The holders of non-voting preference shares benefit from the rights enjoyed by the other shareholders, with the exception of the right to participate in and vote at general meetings of the company's shareholders by reason of those shares.
If non-voting preference shares are created through conversion of ordinary shares already issued, or if non-voting preference shares are converted into ordinary shares, the extraordinary general meeting determines the maximum number of shares to be converted and the terms and conditions of conversion on the basis of a special auditors' report. Its decision is not final until it is approved at the special meetings referred to in Articles L. 228-35-6 and L. 228-103.
The conversion offer is made to all the shareholders at the same time in proportion to their shareholding, with the exception of the persons referred to in Article L. 228-35-8. The extraordinary general meeting determines the period during which the shareholders may accept the conversion offer.
As an exception to Article L. 225-99, the articles of association or the issuance contract may state that a decision to convert non-voting preference shares into ordinary shares taken at an extraordinary general meeting shall not be binding on the holders of such shares.
Article L228-35-4 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 III, Art. 35 I, Art. 38 Official Journal of 26 June 2004)
Non-voting preference shares confer entitlement to a preferred dividend deducted from the distributable profits for the financial year before any other allotment is made. If it appears that the preferred dividend cannot be fully paid on account of there being insufficient distributable profits, it shall be distributed pro tanto between the holders of non-voting preference shares. The right to payment of the preferred dividend which has not been fully paid on account of there being insufficient distributable profits is carried forward to the next financial year and, if necessary, the following two financial years or, if the articles of association so provide, subsequent financial years. The said right is exercised primarily in relation to payment of the preferred dividend due for the financial year.
The preferred dividend shall not be lower than either the first dividend referred to in Article L. 232-16 or an amount equal to 7.5% of the amount of the paid-up capital that the non-voting preference shares represent. Such shares shall not give entitlement to the first dividend.
After deduction of the preferred dividend and, if the articles of association so provide, the first dividend, or a dividend of 5% for the benefit of all ordinary shares calculated as provided for in Article L. 232-16, non-voting preference shares have the same rights as ordinary shares proportionate to their nominal value.
If the ordinary shares are divided into categories that give different entitlement to the first dividend, the amount of the first dividend referred to in the second paragraph of the present article applies to the highest first dividend.
Article L228-35-5 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 III, Art. 35, Art. 38 Official Journal of 26 June 2004)
When the preferred dividends due in respect of three financial years have not been fully paid, the holders of the corresponding shares acquire a voting right equal to that of the other shareholders in proportion to the portion of the capital that those shares represent.
The voting right referred to in the previous paragraph shall remain in force until the end of the financial year in which the preferred dividend is fully paid, including the dividend due in respect of previous financial years.
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COMMERCIAL CODE Article L228-35-6 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 III, Art. 35 I, Art. 38 Official Journal of 26 June 2004)
The holders of non-voting preference shares come together at special meetings as provided for in a Conseil d'Etat decree.
Any shareholder owning non-voting preference shares may participate in special meetings. Any clause to the contrary is deemed not to exist.
A special meeting of the holders of preferred dividend shares without voting rights may express an opinion before any decision is taken at the general meeting. It then rules on a majority of the votes cast by the shareholders present or represented. If a ballot is held, blank ballot papers are not counted. The result is communicated to the company. It is brought to the notice of the general meeting and entered in the minutes.
If the articles of association so provide, the special meeting may designate one or more representatives to represent the holders of preferred dividend shares without voting rights at general meetings of shareholders and, where appropriate, to express their opinion before any vote is taken. The said opinion is entered in the minutes of the general meeting.
Without prejudice to Article L. 228-35-7, any decision which affects the rights of the holders of non-voting preference shares does not become final until it is approved by the special meeting referred to in the first paragraph of the present article under the quorum and majority conditions referred to in Article L. 225-99.
If an objection is raised to the designation of representatives to represent the holders of preferred dividend shares without voting rights at general meetings of shareholders, the presiding judge, ruling on a summary basis, may designate a representative to act in that capacity at the request of any shareholder.
Article L228-35-7 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 III, Art. 35 I, Art. 38 Official Journal of 26 June 2004)
If a capital increase is effected through cash contributions, the holders of non-voting preference shares have the same preferential subscription right as the ordinary shareholders. Having obtained the opinion of the special meeting referred to in Article L. 228-35-6, however, the extraordinary general meeting may decide to endow them with a preferential right to subscribe, in the same way, to new non-voting preference shares having the same rights as the non-voting preferred dividend shares which shall be issued in the same proportion.
The free allotment of new shares following a capital increase through incorporation of reserves, profits or share premiums applies to the holders of non-voting preference shares. Having obtained the opinion of the special meeting referred to in Article L. 228-35-6, however, the extraordinary general meeting may decide that the holders of non-voting preference shares shall receive new non-voting preference shares having the same rights as the non-voting preferred dividend shares which shall be issued in the same proportion, instead of ordinary shares.
Any increase in the nominal value of the existing shares following a capital increase through incorporation of reserves, profits or share premiums applies to non-voting preference shares. The preferred dividend referred to in Article L. 228-35-4 is then calculated, with effect from completion of the capital increase, on the new nominal value plus the share premium, if any, paid on subscription of the old shares.
Article L228-35-8 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 III, Art. 35 I, Art. 38 Official Journal of 26 June 2004)
The chairman and the members of the board of directors, the general managers, the members of the executive board and of the supervisory board of a public limited company, or the executives of a partnership limited by shares and their spouse from whom they are not judicially separated and their children not declared of full age and capacity, shall not hold non-voting preference shares issued by that company in any form whatsoever.
Article L228-35-9 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 III, Art. 35, Art. 38 Official Journal of 26 June 2004)
A company which has issued non-voting preference shares is prohibited from writing off its capital. When a capital reduction not motivated by losses is carried out, non-voting preference shares are bought before the
ordinary shares, as provided for in the last two paragraphs of Article L. 228-35-10, and cancelled. However, these provisions do not apply to capital reductions effected as provided for in Article L. 225-209. In such
cases, the provisions of Article L. 225-99 are not applicable if the shares were bought on a regulated market. Non-voting preference shares have the same rights as other shares, proportionate to their nominal value, on the
reserves distributed during the life of the company.
Article L228-35-10 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 III, Art. 35 I, Art. 38 Official Journal of 26 June 2004)
The articles of association may give the company the right to demand the redemption of all of its own non-voting preference shares or certain categories thereof, with each category being determined by its date of issue. The redemption of a category of non-voting preference shares must comprise all the shares in that category. The redemption is decided by the general meeting in the manner indicated in Article L. 225-204. The provisions of Article L. 225-205 are applicable. The redeemed shares are cancelled pursuant to Article L. 225-207 and the capital is automatically reduced.
The redemption of non-voting preference shares may only be demanded by the company if a specific stipulation to that effect was inserted in the articles of association before the said shares were issued.
The value of non-voting preference shares is determined on the redemption date by mutual agreement between the company and a special meeting of the selling shareholders held under the quorum and majority conditions referred to in Article L. 225-99. In the event of disagreement, Article 1843-4 of the Civil Code is applied.
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COMMERCIAL CODE Redemption of non-voting preference shares can only take place if the preferred dividend due in respect of previous
financial years and the financial year then current has been fully paid.
Article L228-35-11 (inserted by Order No. 2004-604 of 24 June 2004 Art. 30 III, Art. 35 I, Art. 38 Official Journal of 26 June 2004)
Non-voting preference shares are not taken into account when the percentage referred to in Article L. 233-1 or Article L. 233-2 is determined.
SECTION IV Participating securities Articles L228-36 to
L228-37
Article L228-36 (Act No 624 of 17 July 2001, Article 36 VI, Official Gazette of 18 July 2001)
Joint-stock companies belonging to the public sector and cooperative associations established in the form of public limited companies or limited liability companies may issue participating securities. These securities shall be redeemable only in the event of the company’s winding-up or, on its initiative, on the expiration of a period which may not be less than seven years and in accordance with the conditions specified in the issue agreement.
Their remuneration shall involve a fixed part and a variable part calculated by reference to elements relating to the activity or results of the company and based on the face value of the security. A Conseil d'Etat decree shall fix the conditions in accordance with which the basis of the variable part of the remuneration shall be capped.
Participating securities may be traded. In order to apply Article 26 of Act No 741 of 13 July 1978 on the orientation of savings towards the financing of
undertakings, participating capital loans shall be repaid only after full payment of all the other preferential or unsecured creditors to the exclusion of owners of participating securities.
Article L228-37 The issue and redemption of participating securities shall be authorised in accordance with the conditions specified
by the fifth paragraph of Article L.225-100 and Articles L.228-40 to L.228-44. Holders of participating securities from the same issue shall be grouped ipso jure for the defence of their common
interests in a body which shall have a civil personality. They shall be subject to the provisions of Articles L.228-47 to L.228-71, L.228-73 and L.228-76 to L.228-90.
In addition, the body shall meet at least once a year to hear the report of the company directors on the situation and activity of the company during the last financial year and the report of the auditors on the accounts for the financial year and on the elements serving to determine the remuneration of the participating securities.
The representatives of the body shall attend the shareholders’ meetings. They shall be consulted on all issues put down on the agenda, except for those involving the appointment or dismissal of members of the company bodies. They may intervene at any time during the meeting.
Holders of participating securities may receive company documents in accordance with the same conditions as shareholders.
In public undertakings without a general meeting, the board of directors shall exercise the powers conferred on the routine shareholders’ meeting for the issue of participating securities. The fourth paragraph of this article shall not apply.
SECTION V Bonds Articles L228-38 to
L228-90
Article L228-38 As stated in Article 284 of Act No 357 of 24 July 1966 on commercial companies: “Art. 284.- Bonds are negotiable securities which, within the same issue, confer the same rights of claim for the
same face value.”
Article L228-39 (Act No 420 of 15 May 2001, Article 102, Official Gazette of 16 May 2001)
The issue of bonds by a joint-stock company which has not established two balance sheets duly approved by the shareholders must be preceded by a verification of the assets and liabilities in accordance with the conditions specified in Articles L.225-8 and L.225-10.
The issue of bonds shall be prohibited for companies whose capital is not fully paid up except where the unpaid-up shares have been reserved for employees, pursuant to Article L.225-187 or Article L.443-5 of the Labour Code, and except where this is carried out with a view to allocating to employees bonds issued in respect of the participation of the latter in the fruits of the company’s expansion.
Article L228-40 (Order No. 2004-604 of 24 June 2004 Art. 39 Official Journal of 26 June 2004)
The board of directors, the executive board and the chief executive(s) are empowered to decide or authorise the issue of bonds unless the articles of association reserve such power for the general meeting, and if the general meeting does not decide to exercise it itself.
The board of directors may delegate to one or more of its members, to the general manager or, with the latter's
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COMMERCIAL CODE agreement, to one or more acting general managers or, in credit institutions, to any person of its choice, the powers required to implement the issue of bonds within one year and to determine the particulars thereof.
The executive board may delegate to its chairman and, with his agreement, to one or more of its members or, in credit institutions, to any person of its choice, the powers required to implement the issue of bonds within that same time limit and to determine the particulars thereof.
The persons thus designated report to the board of directors or the executive board in the manner determined by those structures.
Article L228-41 The general meeting of shareholders may delegate to the board of directors, management or managers, as
applicable, the powers needed to issue bonds on one or more occasions, within a period of five years, and to determine the terms of this.
The board of directors or management, as applicable, may delegate to its chairman or to any person of its choice who is a member of the board of directors or management the powers which it has received pursuant to the above paragraph. The chairman or delegate shall report to the board of directors or management in accordance with the conditions specified by the latter.
Article L228-42 The provisions of Articles L.228-40 and L.228-41 shall not apply to companies whose main object is to issue bonds
needed to finance the loans which they grant.
Article L228-43 If an offer is made to the public, the company shall comply, before opening the subscription, with the formalities for
publishing the issue conditions according to the terms fixed by a Conseil d'Etat decree.
Article L228-44 The company may not use its own bonds as security.
Article L228-45 Where the issuing company has continued to pay the proceeds of bonds redeemable by drawings, it may not pay
these sums again when these bonds are presented for redemption. Any clause to the contrary shall be deemed to be unwritten.
Article L228-46 The holders of bonds from the same issue shall be grouped ipso jure for the defence of their common interests in a
body which shall have a civil personality. However, in the event of successive issues of bonds, the company may, when a clause in each issue agreement
specifies this, group bondholders with identical rights into a single body.
Article L228-47 The body shall be represented by one or more representatives elected by the general meeting of bondholders.
Their number may not under any circumstances exceed three. In the event of an issue through a public offering, the representatives may be appointed in the issue agreement.
Article L228-48 The mandate of representative of the body may be entrusted only to persons of French nationality or to nationals of
a Member State of the European Communities, domiciled in French territory, and to the associations and companies with their registered office therein.
Article L228-49 The following may not be chosen as representatives of the body: 1° The debtor company; 2° Companies holding at least one-tenth of the capital of the debtor company or in which the latter holds at least
one-tenth of the capital; 3° Companies acting as guarantor for all or part of the commitments of the debtor company; 4° Managers, directors, members of the management and supervisory board, managing directors, auditors or
employees of the companies referred to in 1° and 3°, and their ancestors, descendants and spouses; 5° Persons to whom the exercise of the profession of banker is prohibited or who are deprived of the right to run,
administer or manage any type of company.
Article L228-50 In an emergency, the representatives of the body may be appointed by a court decision at the request of any
interested party.
Article L228-51 When they are not appointed in the issue agreement, representatives of the body of bondholders with regard to a
loan for which the company has made a public offering shall be appointed within one year of the opening of the subscription and at the latest one month before the first specified debt payment.
This appointment shall be made by the general meeting or, failing this, by a court decision at the request of any interested party.
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COMMERCIAL CODE Article L228-52
The representatives of the body may be relieved of their duties by the general meeting of bondholders.
Article L228-53 The representatives of the body shall, except where restricted as decided by the general meeting of bondholders,
have the power to carry out on behalf of the body all the management acts for the defence of the common interests of the bondholders.
Article L228-54 The representatives of the body, duly authorised by the general meeting of bondholders, shall alone have the
capacity to bring, on behalf of the latter, actions for nullity of the company or acts and decisions subsequent to its formation and also all actions intended to defend the common interests of the bondholders, and particularly to request the measure specified in Article L.237-14.
Court actions directed against all the bondholders in the same body may be brought only against the representative of this body.
Any action brought contrary to the provisions of this article shall be declared automatically inadmissible.
Article L228-55 The representatives of the body may not be involved in the management of the company business. They shall have
access to the general meetings of shareholders, but without a right to vote. They shall be entitled to receive the documents provided to the shareholders in accordance with the same
conditions as the latter.
Article L228-56 (Law No 2003-706 of 1 August 2003 Article 134 (VI) Official Gazette of 2 August 2003)
The remuneration of the representatives of the general body as determined by the general meeting or by the issue agreement, is paid by the debtor company.
If this remuneration is not determined, or if the amount thereof is contested by the company, it is fixed by a decision of the court.
Without prejudice to any action for damages against the executives or the representative of the general body, any decision which grants remuneration to the latter in breach of the provisions of the present Article is null and void.
Article L228-57 The general meeting of bondholders in the same body may meet at any time.
Article L228-58 The general meeting of bondholders shall be convened by the board of directors, management or managers, by the
representatives of the body or by the liquidators during the winding-up period. One or more bondholders, together holding at least one-thirtieth of the securities of a body, may submit to the company and to the representative of the body a request for the meeting to be convened.
If the general meeting has not been convened within the period fixed by a Conseil d'Etat decree, the originators of the request may entrust one of them to bring legal proceedings for the appointment of a representative who shall convene the meeting.
Article L228-59 The general meetings of bondholders shall be convened in accordance with the same formal and deadline
conditions as the shareholders’ meetings. In addition, the notices of the meetings shall contain special information which shall be determined by a Conseil d'Etat decree.
Any meeting unduly convened may be cancelled. However, the action to cancel this shall not be admissible when all the bondholders in the body in question are present or represented.
Article L228-60 (Order No. 2004-604 of 24 June 2004 Art. 41 I Official Journal of 26 June 2004)
The agenda of a meeting is determined by the person convening it. However, one or more bondholders are entitled, as provided for in the second paragraph of Article L. 228-58, to
require that draft resolutions be placed on the agenda. Such resolutions are placed on the agenda and put to the vote by the chairman of the meeting.
The meeting shall not deliberate on an item which is not placed on the agenda. The agenda for the meeting may be amended on a second convening.
Article L228-60-1 (inserted by Order No. 2004-604 of 24 June 2004 Art. 41 II Official Journal of 26 June 2004)
An attendance sheet is kept for each meeting. The decisions taken at each meeting are recorded in minutes signed by the members of the committee which are
entered in a special register kept at the registered office. The elements that must be included in the attendance sheet and the minutes are determined in a Conseil d'Etat
decree.
Article L228-61 (Order No. 2004-604 of 24 June 2004 Art. 42 Official Journal of 26 June 2004)
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COMMERCIAL CODE If there are several bodies of bondholders, they shall not in any circumstances hold a joint meeting. All bondholders are entitled to participate in the meeting or to be represented at it by the representative of their
choice. Any bondholder may vote by correspondence using a form as prescribed in a Conseil d'Etat decree. Any contrary
provision in the articles of association is deemed not to exist. When the quorum is calculated, only voting forms received by the company before the date of the meeting in the
manner and within the time limits determined in a Conseil d'Etat decree are counted. Forms which do not indicate a voting intention or which express an abstention are treated as negative votes.
If the articles of association so provide, bondholders who participate in the meeting via videoconferencing or via a telecommunications medium which permits their identification are deemed to be present for calculation of the quorum and the majority. The nature of the acceptable technical media and the implementing regulations for this provision are determined in a Conseil d'Etat decree.
The holders of redeemed bonds which were not repaid on account of the failure of the debtor company or a dispute relating to the conditions of repayment may participate in the meeting.
A company which holds at least 10% of the debtor company's capital shall not vote with the bonds it holds at the meeting.
Article L228-62 Managers, directors, members of the management and supervisory board, managing directors, auditors or
employees of the debtor company or companies acting as guarantor for all or part of the commitments of said company, and their ancestors, descendants and spouses, may not represent bondholders at general meetings.
Article L228-63 The representation of a bondholder may not be entrusted to persons to whom the exercise of the profession of
banker is prohibited or who are deprived of the right to run, administer or manage any type of company.
Article L228-64 The meeting shall be chaired by a representative of the body. In the absence of these representatives or in the
event of disagreement between them, the meeting shall appoint a person to fulfil the duties of chairman. If the meeting is convened by a legal agent, the meeting shall be chaired by the latter.
In the absence of the body representatives appointed in accordance with the conditions specified in Articles L.228-50 and L.228-51, the first meeting shall be opened under the provisional chairmanship of the holder holding or the representative representing the highest number of bonds.
Article L228-65 (Order No. 2004-604 of 24 June 2004 Art. 43 Official Journal of 26 June 2004) (Act No. 2005-842 of 26 July 2005 Art. 11 II Official Journal of 27 July 2005)
I. - The general meeting deliberates on all measures intended to protect the bondholders and ensure execution of the loan agreement, and on any proposal seeking to amend the contract, including:
1 Any proposal relating to a change in the company's corporate purpose or status; 2 Any proposal for a settlement or a transaction concerning disputed rights or rights in respect of which court
decisions have been handed down; 3 Proposals to merge or demerge the company in the cases referred to in Articles L236-13 and L236-18; 4 Any proposal relating to the issuing of bonds conferring a preferential right in relation to the debt of the general
body of bondholders; 5 Any proposal relating to total or partial abandonment of the guarantees conferred on the bondholders,
rescheduling of the due date for payment of interest or changes to the terms governing redemption or the interest rate; 6 Any plan to relocate a European company's registered office to another Member State. II. - The general meeting deliberates under the quorum conditions indicated in the second paragraph of Article
L225-98. It rules on a majority of two thirds of the votes held by the bondholders present or represented.
Article L228-66 The voting right in general meetings of bondholders shall belong to the bare owner.
Article L228-67 The voting right attached to the bonds must be proportional to the portion of the loan amount which they represent.
Each bond shall confer the right to at least one vote.
Article L228-68 (Order No. 2004-604 of 24 June 2004 Art. 51 XIV Official Journal of 26 June 2004)
Meetings shall neither increase the bondholders' charges nor establish inequitable treatment of bondholders within a single body.
They cannot decide to convert bonds into shares, without prejudice to the provisions of Article L. 228-106. Any contrary provision is deemed not to exist.
Article L228-69 All bondholders shall be entitled to receive, in accordance with the conditions and deadlines determined by a
Conseil d'Etat decree, the text of resolutions to be proposed and of reports to be submitted to the general meeting. They shall at all times have the same right with regard to the minutes and attendance sheets of the general
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COMMERCIAL CODE meetings of the body to which they belong.
Article L228-70 Bondholders shall not be allowed individually to exercise control over the operations of the company or to request
notification of company documents.
Article L228-71 The debtor company shall support the expenses of convening and holding the general meetings and of publishing
their decisions, together with the expenses resulting from the procedure specified in Article L.288-50. The other management expenditure decided by the general meetings of the body may be deducted from the interest paid to the bondholders and its amount may be fixed by a court decision.
The deductions specified in the above paragraph may not exceed one-tenth of the annual interest.
Article L228-72 Failing approval by the general meeting of the proposals referred to in 1° and 4° of I of Article L.228-65, the board of
directors, management or managers of the debtor company may carry on regardless by offering to redeem the bonds within the period fixed by a Conseil d'Etat decree.
The decision of the board of directors, management or managers to carry on regardless shall be published in accordance with the conditions fixed by a Conseil d'Etat decree which shall also determine the period during which the redemption must be requested.
Article L228-73 (Act No. 2005-842 of 26 July 2005 Art. 11 II Official Journal of 27 July 2005)
If a general meeting of the bondholders of the company acquired or hived off has not approved a proposal referred to in 3 and 6 of I of Article L228-65 or was unable to validly deliberate on account of the required quorum not being achieved, the board of directors, the executive board or the executives of the debtor company may carry on regardless. The decision is published as provided for in a Conseil d'Etat decree.
The bondholders then retain their status in the acquiring company or the companies receiving the contributions resulting from the demerger, as applicable.
The general meeting of bondholders may nevertheless empower the representatives of the general body of bondholders to lodge an objection to the transaction under the terms, and with the effects, stipulated in Article L236-14.
Article L228-74 Bonds repurchased by the issuing company and bonds drawn and redeemed shall be cancelled and may not be put
back into circulation.
Article L228-75 In the absence of special provisions in the issue agreement, the company may not impose the early redemption of
bonds on bondholders.
Article L228-76 In the event of early dissolution of the company, not caused by a merger or division, the general meeting of
bondholders may request the redemption of the bonds and the company may impose this.
Article L228-77 In the event of an issue of bonds accompanied by special securities, the latter shall be established by the company
before the issue, on behalf of the body of bondholders. Acceptance shall result from the sole fact of the bonds being subscribed. It shall be retroactive to the date of registration for securities subject to registration and to the date of their establishment for other securities.
Article L228-78 The guarantees specified in Article L.228-77 shall be given by the chairman of the board of directors, the
representative of the management or the manager, following authorisation from the company body authorised to this end by the articles of association.
Article L228-79 The securities shall be established in a special instrument. The publication formalities for these securities shall be
completed before any subscription, on behalf of the body of bondholders being established. Within six months of the subscription being opened, the result of this shall be recorded in a notarised document by
the company’s representative. The terms of the registration and renewal of the registration of securities shall be determined by a Conseil d'Etat
decree. The representatives of the body shall monitor, under their responsibility, the observation of the provisions on the
renewal of the registration.
Article L228-80 The cancellation of registrations shall occur in accordance with the conditions determined by a Conseil d'Etat
decree.
Article L228-81 The guarantees established after the issue of the bonds shall be given by the chairman of the board of directors, the
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COMMERCIAL CODE representative of the management or the manager, following authorisation from the company body authorised to this end by the articles of association. They shall be accepted by the representative of the body.
Article L228-82 The issue of bonds whose redemption is guaranteed by a capitalisation company is prohibited.
Article L228-83 In the event of an administrative order or winding-up proceedings of the company, the representatives of the body of
bondholders shall be authorised to act on the latter’s behalf.
Article L228-84 (Order No. 2005-845 of 26 July 2005 Art. 165 III Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
On behalf of all the bondholders in the general body, the representatives of the general body declare the principal amount of the bonds remaining in circulation plus, for information, any matured but unpaid interest coupons, a detailed statement of which is drawn up by the court-appointed administrator, as liabilities in the company's court-ordered receivership or reorganisation proceedings. They are not required to present their principals' certificates in support of that declaration.
Article L228-85 (Order No. 2005-845 of 26 July 2005 Art. 165 III Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Failing such a declaration by the representatives of the general body, a court decision, made at the request of the court-appointed liquidator, appoints a representative to represent the general body in the court-ordered receivership or liquidation proceedings and to declare the debt.
Article L228-86 (Order No. 2005-845 of 26 July 2005 Art. 165 III Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The representatives of the general body are consulted by the court-appointed administrator concerning the terms of settlement for the bonds proposed pursuant to Article L621-59. They give their consent as stipulated by the ordinary general meeting of bondholders convened for that purpose.
Article L228-87 The expenses incurred in representing the bondholders during the procedure for the administrative order of the
company shall be incumbent on the latter and shall be regarded as legal administrative expenses.
Article L228-88 The administrative order or winding-up proceedings of the company shall not end the operation and role of the
general meeting of bondholders.
Article L228-89 In the event of closure due to insufficient assets, the representative of the body or the appointed legal agent shall
recover the exercise of the rights of the bondholders.
Article L228-90 Unless otherwise specified in the issue agreement, the provisions of Articles L.228-46 to L.228-69, L.228-71,
L.228-72, L.228-76 to L.228-81 and L.288-83 to L.228-89 shall not apply to companies whose loans are subject to special legal rules nor to loans guaranteed by the State, departments, municipalities or public establishments nor to loans issued abroad by French companies.
SECTION VI Other securities conferring the right to the allotment of shares representing a
portion of the capital Articles L228-91 to L228-106
Subsection 1 General provisions Articles L228-91 to
L228-97
Article L228-91 (Order No. 2004-604 of 24 June 2004 Art. 44, Art. 45 Official Journal of 26 June 2004)
Joint-stock companies may issue transferable securities giving access to the capital or giving entitlement to an allotment of debt instruments.
The shareholders of a company issuing transferable securities giving access to the capital have a preferential right to subscribe those transferable securities in proportion to the value of their shares.
The said right is governed by the provisions applicable to the preferential subscription right attached to capital securities pursuant to Articles L. 225-132 and L. 225-135 to L. 225-140.
The issuance contract may stipulate that such transferable securities and the capital securities or debt instruments to which they give entitlement shall not be assigned and traded together. In such cases, if the security originally issued is a capital security, it does not fall within a given category within the meaning of Article L. 225-99.
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COMMERCIAL CODE Capital securities shall not be converted or transformed into transferable securities representing debts. Any clause
to the contrary is deemed not to exist. Transferable securities issued pursuant to the present article shall not be deemed to constitute a promise of share
within the meaning of the second paragraph of Article L. 228-10.
Article L228-92 (Order No. 2004-604 of 24 June 2004 Art. 44, Art. 46 Official Journal of 26 June 2004)
Issues of transferable securities giving access to the capital or giving entitlement to an allotment of debt instruments governed by Article L. 228-91 are authorised by the extraordinary general meeting of shareholders pursuant to Articles L. 225-129 to L. 225-129-6. The said meeting rules on the basis of a report from the board of directors or the executive board and the auditor's special report.
Article L228-93 (Order No. 2004-604 of 24 June 2004 Art. 44, Art. 47 Official Journal of 26 June 2004)
A joint-stock company may issue transferable securities giving access to the capital of the company which directly or indirectly holds more than half of its capital or a company whose capital it directly or indirectly holds more than one half of.
Under pain of being declared null and void, the issue must be authorised by the company's extraordinary general meeting called to issue those transferable securities and by that of the company in which the rights are exercised, in the manner indicated in Article L. 228-92.
Article L228-95 (Act No. 2003-706 of 1 August 2003 Art. 134 VII Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 44, Art. 48 Official Journal of 26 June 2004)
Decisions taken in violation of the second and third paragraphs of Article L. 228-91 are null and void.
Article L228-97 (Act No. 2003-706 of 1 August 2003 Art. 61 Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 44 Official Journal of 26 June 2004)
When transferable securities representing debts on the issuing company are issued, including those giving entitlement to subscribe or purchase a transferable security, it may be stipulated that such transferable securities shall not be repaid until the other creditors have been paid off, excluding or including holders of equity loans and participating securities, notwithstanding the provisions of Article L. 228-36 of the present code and those of Articles L. 313-13 et seq of the Monetary and Financial Code.
An order of priority for payments may also be stipulated for such categories of transferable securities.
Subsection 2 Provisions relating to transferable securities giving access to the capital Articles L228-98 to
L228-106
Article L228-98 (inserted by Order No. 2004-604 of 24 June 2004 Art. 49 Official Journal of 26 June 2004)
With effect from the date of issue of transferable securities giving access to the capital, the company which is to allot the securities shall not change its legal form or its object unless it is authorised to do so by the issuance contract or as provided for in Article L. 228-103.
Moreover, it may neither change the rules for allocating its profits nor write off its capital unless it is authorised to do so by the issuance contract or as provided for in Article L. 228-103, and subject to its taking the necessary steps to maintain the rights of the holders of the transferable securities giving access to the capital in the manner described in Article L. 228-99.
Subject to those same restrictions, however, it may create preference shares. In the event of its capital being reduced, on account of losses, through a reduction in the nominal value or the
number of the securities comprising the capital, the rights of the holders of the transferable securities giving access to the capital are consequently reduced, as if they had exercised them before the date on which the reduction of capital became definitive.
Article L228-99 (inserted by Order No. 2004-604 of 24 June 2004 Art. 49 Official Journal of 26 June 2004)
The company which is to allot the capital securities or the transferable securities giving access to the capital must take the necessary steps to protect the interests of the holders of the rights created if it decides to proceed, regardless of their form, with the issue of new capital securities with a preferential subscription right reserved for its shareholders, to distribute reserves, in cash or in kind, and share premiums, or to change the allocation of its profits through the creation of preference shares.
To that end, it shall: 1. Permit the holders of those rights to exercise them, if the period stipulated for the issuance contract has not yet
commenced, to enable them to participate immediately in the operations referred to in the first paragraph or to benefit therefrom;
2. Or take provisions which will allow them, should they exercise their rights subsequently, to irrevocably subscribe the new transferable securities issued, or to obtain a free allotment thereof, or to receive cash or goods similar to those
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COMMERCIAL CODE which would have been distributed to them, in the same quantities or proportions and under the same conditions, save for possession, had they been shareholders when those operations took place;
3. Or change the conditions of subscription, the bases of conversion, or the terms and conditions of exchange or allotment initially laid down, in order to take account of the impact of the operations referred to in the first paragraph.
Unless otherwise stipulated in the issuance contract, the company may simultaneously take the measures indicated 1 and 2. It may, in all instances, replace them with the change authorised in 3. The said change is stipulated in the issuance contract when the capital securities are not admitted to trading on a regulated market.
The present article's implementing regulations are determined in a Conseil d'Etat decree.
Article L228-100 (inserted by Order No. 2004-604 of 24 June 2004 Art. 49 Official Journal of 26 June 2004)
The provisions of Articles L. 228-98 and L. 228-99 are applicable for as long as rights attached to any transferable securities element referred to in these articles remain in existence.
Article L228-101 (inserted by Order No. 2004-604 of 24 June 2004 Art. 49 Official Journal of 26 June 2004)
If the company which issued the capital securities is taken over by another company or merges with one or more other companies to form a new company, or effects a demerger, the holders of transferable securities giving access to the capital shall exercise their rights in the company, or companies, benefiting from the contributions. Article L. 228-65 shall not apply, unless otherwise stipulated in the issuance contract.
The number of capital securities they may claim in the acquiring companies or new companies is determined by adjusting the number of securities which the issuance contract proposes to issue or allot in proportion to the number of shares to be created by the company, or companies, benefiting from the contributions. The valuer of contributions in kind gives an opinion on the number of securities thus determined.
Approval of the merger or demerger plan by the shareholders of the company, or companies, benefiting from the contributions or the new company, or companies, entails relinquishment by the shareholders and, where applicable, by the holders of those companies' investment certificates, of the preferential subscription right referred to in Article L. 228-35 or the second paragraph of Article L. 228-91, for the benefit of the holders of transferable securities giving deferred access to the capital.
The company, or companies, benefiting from the contributions or the new company, or companies, are automatically substituted for the issuing company in its obligations towards the holders of the said transferable securities.
Article L228-102 (inserted by Order No. 2004-604 of 24 June 2004 Art. 49 Official Journal of 26 June 2004)
In the absence of special stipulations in the issuance contract, and save for early dissolution which is not the result of a merger or demerger, the company shall not impose redemption or repayment on the holders of transferable securities giving access to its capital.
Article L228-103 (Order No. 2004-604 of 24 June 2004 Art. 49 Official Journal of 26 June 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 XXVII Official Journal of 10 December 2004)
The holders of transferable securities giving deferred access to the capital after detachment, where applicable, of the rights to the original security pursuant to the present section are automatically grouped together, to protect their common interests, within a body which has legal personality and is subject to provisions identical to those of Articles L. 228-47 to L. 228-64, L. 228-66 and L. 228-90 applicable to bonds. Where applicable, a separate body is formed for each category of securities conferring the same rights.
The general meetings of the holders of such transferable securities are called upon to authorise any amendment to the issuance contract and to decide on any matter relating to the subscription or allotment conditions of capital securities determined at the time of issue.
Each transferable security giving access to the capital gives entitlement to a vote. The quorum and majority conditions are as determined in the second and third paragraphs of Article L. 225-96.
The costs of meetings and, more generally, all costs associated with the functioning of the different bodies are borne by the company called upon to issue or allot new transferable securities representing its share capital.
When the transferable securities issued pursuant to the present section are bonds intended to be converted into or repaid with capital securities or exchanged for capital securities, the provisions of the second, third and fourth paragraphs of the present article are applicable to the body created pursuant to Article L. 228-46.
NB: These provisions are applicable in Mayotte, New Caledonia and the Wallis and Futuna Islands.
Article L228-104 (inserted by Order No. 2004-604 of 24 June 2004 Art. 49 Official Journal of 26 June 2004)
Deliberations entered into, or stipulations made, in violation of Articles L. 228-98 to L. 228-101 and L. 228-103 are null and void.
Article L228-105 (inserted by Order No. 2004-604 of 24 June 2004 Art. 49 Official Journal of 26 June 2004)
As determined in a Conseil d'Etat decree, the holders of transferable securities giving access to the capital have, in relation to the company issuing the securities they are entitled to receive, a right to discovery of the documents that that
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COMMERCIAL CODE company sends, or makes available to, its shareholders or holders of investment certificates.
When the right to an allotment of a portion of the share capital is incorporated in or attached to bonds, the right of discovery is exercised by the representatives of the body of bondholders, pursuant to Article L. 228-55.
After detachment of the rights to the original security, the right of discovery is exercised by the representatives of the body constituted pursuant to Article L. 228-103.
In all cases, the representatives of the different bodies have access to the general meeting of shareholders, but without entitlement to speak and vote. They may not interfere, in any way, in the management of the company's business.
Article L228-106 (inserted by Order No. 2004-604 of 24 June 2004 Art. 49 Official Journal of 26 June 2004)
When judicial receivership proceedings are initiated against a company which has issued transferable securities giving access to its capital as provided for in Article L. 228-91, the time limit stipulated for exercising the right to an allotment of a portion of the share capital runs from the judgement sanctioning the reorganisation plan, at each holder's discretion, and as indicated in that plan.
CHAPTER IX European Companies Articles L229-1 to
L229-15
Article L229-1 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
European companies registered in the trade and companies register in France have legal personality with effect from their registration.
A European company is governed by the provisions of (EC) Council Regulation No. 2157/2001 of 8 October 2001 relating to the status of a European company, those of the present chapter and those applicable to public companies which are not contrary thereto.
A European company is subject to the provisions of Article L210-3. The registered office location indicated in a European company's memorandum and articles of association cannot be dissociated from its principal administrative establishment.
Article L229-2 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
Any European company properly registered in the trade and companies register may transfer its registered office to another Member State. It draws up a transfer plan. The said plan is filed at the clerk's office of the court having jurisdiction at the place where the company is registered and is published as provided for in a Conseil d'Etat decree.
Transfer of the registered office is decided by an extraordinary general meeting as provided for in Article L225-96 and is subject to ratification by the special meetings of shareholders referred to in Articles L225-99 and L228-35-6.
In the event of a transaction being objected to, the shareholders may request redemption of their shares as provided for in a Conseil d'Etat decree.
The plan to transfer the registered office is submitted to the special meetings of investment-certificate holders ruling on the basis of the rules for general meetings of shareholders unless the company acquires those securities through a simple request and such acquisition has been agreed by their special meeting. The acquisition offer is subject to publicity as determined in a Conseil d'Etat decree. Any investment-certificate holder who has not assigned his securities within a time limit determined in a Conseil d'Etat decree retains that status without prejudice to those investment certificates and voting rights being exchanged for shares.
The transfer plan is submitted to a meeting of the company's bondholders unless redemption of the securities upon request is offered to the said bondholders. The offer of redemption is subject to publicity as determined in a Conseil d'Etat decree. Any bondholder who has not requested redemption within a time limit determined in a Conseil d'Etat decree retains his status in the company under the terms laid down in the transfer plan.
Non-bondholder creditors of a company transferring its registered office whose debt predates the transfer of the registered office may object to the transfer within a time limit determined in a Conseil d'Etat decree. A court decision rejects the objection or orders either the repayment of the debts or the provision of guarantees if the company transferring its registered office offers any and if they are judged to be sufficient. Failing such settlement of the debts or provision of the guarantees ordered, the transfer of the registered office is ineffective against those creditors. An objection lodged by a creditor does not have the effect of halting the transfers in progress. The provisions of the present paragraph shall not impede application of the agreements authorising the creditor to demand immediate repayment of his debt in the event of the registered office being transferred.
A notary issues a certificate conclusively attesting to compliance with the formalities which must be completed prior to the transfer.
Article L229-3 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
I. - Verification of the legality of the merger is carried out, for the part of the procedure relating to each company being merged, by the registrar of the court having jurisdiction at the place where the company is registered pursuant to Article L236-6.
Verification of the legality of the merger is carried out, for the part of the procedure relating to the completion of the
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COMMERCIAL CODE merger and the formation of a European company, by a notary.
To this end, each company being merged presents to the notary the certificate referred to in Article 25 of the aforementioned (EC) Council Regulation No. 2157/2001 of 8 October 2001 within six months of its issuance, along with a copy of the merger plan approved by the company.
The notary verifies in particular that the companies which are merging have approved a merger plan under the same terms and that the terms and conditions relating to the workers' involvement were determined pursuant to Articles L439-25 to L439-45 of the Labour Code.
The notary also verifies that the formation of a European company through a merger meets the conditions imposed by French law.
II. - Voidance of the proceedings of a meeting which decided a merger operation pursuant to the law applicable to a public limited company, or failure to verify legality, constitute grounds for dissolution of a European company.
When it is possible to remedy an irregularity likely to entail dissolution, the tribunal before which an action for dissolution of a European company created by merger is brought grants time to permit regularisation of the situation.
Actions for dissolution of a European company lapse six months after the date of the last entry in the trade and companies register made necessary by the operation.
When the dissolution of a European company is pronounced, it is liquidated pursuant to the provisions of its memorandum and articles of association and Chapter VII of Part III of the present Book.
When a court ruling ordering the dissolution of a European company on grounds envisaged in the sixth paragraph of the present article has become definitive, the said ruling is published as determined in a Conseil d'Etat decree.
Article L229-4 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
The authority empowered to lodge an objection against the transfer of the registered office of a European company registered in France pursuant to the provisions of 14 of Article 8 and Article 19 of the aforementioned (EC) Council Regulation No. 2157/2001 of 8 October 2001 which would result in a change of applicable law, and likewise the formation of a European company through a merger involving a company governed by French law, is the public prosecutor.
Article L229-5 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
The companies promoting the creation of a European holding company draw up a common plan to create a European company.
The said plan is filed at the clerk's office of the court having jurisdiction at the place where the said companies are registered and is published as provided for in a Conseil d'Etat decree.
One or more court-appointed European holding company formation commissioners draw up a report to the shareholders of each company, under their own responsibility, the content of which is stipulated in a Conseil d'Etat decree.
By agreement between the companies promoting the operation, the commissioner(s) may draw up a written report for the shareholders of all the companies.
The provisions of the third and fourth paragraphs of Article L236-9 and Articles L236-13 and L236-14 are applicable if a European holding company is formed.
Article L229-6 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
As an exception to the second sentence of Article L225-1, a European company may form a European company in which it is the sole shareholder. It is subject to the provisions applicable to a European company and those relating to a limited liability company held by a sole proprietor set forth in Articles L223-5 and L223-31.
In such cases, the sole shareholder exercises the powers vested in the general meeting. In the case of a European company under sole proprietorship, Articles L225-25, L225-26, L225-72 and L225-73 do
not apply to that company's directors or the members of its supervisory board.
Article L229-7 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
The management and administration of a European company are governed by the provisions of Section 2 of Chapter V of the present Part, with the exception of the first paragraph of Articles L225-37 and L225-82 and the fourth paragraph of Article L225-64.
As an exception to Article L225-62, however, if a seat becomes vacant on the executive board, the supervisory board may appoint one of its members to exercise the functions of an executive board member for a maximum period determined in a Conseil d'Etat decree. During the said period, that member's functions on the supervisory board are suspended.
The provisions of the first paragraph of Article L225-17, the second paragraph of Article L225-22, Article L225-69 and the second paragraph of Article L225-79 shall not impede participation of the workers as defined in Article L439-25 of the Labour Code.
Each member of the supervisory board may request from the chairman of the executive board the documents which he considers necessary for the accomplishment of his mission.
A European company is managed by an executive board composed of seven members at most. The memorandum and articles of association must contain rules similar to those set forth in Articles L225-38 to
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COMMERCIAL CODE L225-42 and L225-86 to L225-90. In the case of a company referred to in Article L229-6, however, an entry in the record of proceedings constitutes approval of the agreement.
Article L229-8 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
The general meetings of a European company are subject to the rules laid down in section 3 of Chapter V of the present Part insofar as they are compatible with the aforementioned (EC) Council Regulation No. 2157/2001 of 8 October 2001.
Article L229-9 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
If the principal administrative establishment of a European company is no longer in France, any interested party may ask the court to regularise the situation by transferring the registered office or re-establishing the principal administrative establishment at the site of the registered office in France, under pain of a coercive fine if necessary.
The court shall impose a time limit for such regularisation. Failing regularisation upon expiry of the time limit, the court shall pronounce the liquidation of the company as
provided for in Articles L237-1 to L237-31. Such decisions are sent to the public prosecutor by the court registry. The judge's decision indicates that the
judgement emanated from the court registry. In the event of it being noted that the principal administrative establishment of a European company registered in
another Member State has been transferred to France in contravention of Article 7 of the aforementioned (EC) Council Regulation No. 2157/2001 of 8 October 2001, the public prosecutor of the Tribunal de grande instance having jurisdiction at the place where the principal administrative establishment is located shall immediately inform the Member State in which its registered office is located.
In the event of it being noted that the principal administrative establishment of a European company registered in France has been transferred to another Member State in contravention of Article 7 of the aforementioned (EC) Council Regulation No. 2157/2001 of 8 October 2001, the authorities of that Member State shall immediately inform the public prosecutor of the Tribunal de grande instance having jurisdiction at the place where the company is registered.
Article L229-10 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
Any European company may convert itself into a limited company if it has been registered for more than two years at the time of such conversion and its balance sheet for the first two accounting periods has been approved.
The company draws up a plan to convert itself into a limited company. The said plan is filed at the clerk's office of the court having jurisdiction at the place where the company's registered office is located and is published as provided for in a Conseil d'Etat decree.
One or more court-appointed conversion commissioners draw up a report to the converting company's shareholders under their own responsibility attesting that the shareholders' equity is at least equivalent to the authorised capitaL.They are subject to the incompatibilities referred to in Article L822-11.
Conversion into a limited company is decided as provided for in Articles L225-96 and L225-99.
Article L229-11 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
The memorandum and articles of association of a European company which does not make public offerings may make any transfer of shares subject to restrictions on free negotiability but such restrictions shall not have the effect of rendering the shares inalienable for more than ten years.
Any assignment made in violation of such conditions in the memorandum and articles of association is null and void. Such voidance is binding on the assignee or his assigns. It may be regularised by a unanimous decision of the shareholders who are not parties to the contract or to the share-transfer transaction.
Article L229-12 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
Under the terms and conditions of the memorandum and articles of association of a European company which does not make public offerings, a shareholder may be required to assign his shares. Likewise, that same shareholder's non-pecuniary rights may be suspended until such time as he effects the said assignment.
Article L229-13 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
The memorandum and articles of association of a European company which does not make public offerings may require a corporate shareholder whose control within the meaning of Article L233-16 changes to inform the European company thereof as soon as the change takes place. The latter may decide, under the terms of the memorandum and articles of association, to suspend exercise of that shareholder's non-pecuniary rights and exclude it.
The provisions of the first paragraph may apply in the same way to a legal entity which becomes a shareholder following a merger, demerger or dissolution.
Article L229-14 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
If the memorandum and articles of association do not specify a method for evaluating the transfer price of the
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COMMERCIAL CODE shares when a European company implements a clause adopted pursuant to Articles L229-11 to L229-13, the price is determined by agreement between the parties or, failing this, is determined as provided for in Article 1843-4 of the Civil Code.
When the shares are bought by a European company, it is required to transfer them within six months or cancel them.
Article L229-15 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
Clauses stipulated pursuant to Articles L229-11 to L229-14 may be adopted or amended only by a unanimous vote of the shareholders.
TITLE III Provisions common to various commercial companies Articles L231-1 to
L238-3-1
CHAPTER I Variable capital Articles L231-1 to
L231-8
Article L231-1 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The memorandum and articles of association of companies other than public limited companies, and of any cooperative, may stipulate that the share capital may be increased through successive payments made by the partners or the admission of new partners, and may be reduced by the total or partial withdrawal of the contributions made.
Companies whose memorandum and articles of association contain the above stipulation are subject to the provisions of the present Chapter regardless of the general rules specific to their status.
Article L231-2 If the company has used the option granted by Article L.231-1, this circumstance shall be indicated, in all the
instruments and documents originating from the company and intended for third parties, by the addition of the words “à capital variable” (with variable capital).
Article L231-3 Instruments recording increases or reductions of the share capital made under the terms of Article L.231-1 or
withdrawals of members, other than managers or directors, which have taken place in accordance with Article L.231-6 shall not be subject to the filing and publication formalities.
Article L231-4 The shares or share coupons shall be registered, even after they are fully paid up. They may be traded only after the definitive formation of the company. Trading may take place only by means of transfer to the company registers and the articles of association may
confer, either on the board of directors or on the general meeting, the right to object to the transfer.
Article L231-5 (Act No 420 of 15 May 2001, Article 124 II, Official Gazette of 16 May 2001)
The articles of association shall determine a sum below which the capital may not be reduced by the acquisitions of contributions authorised by Article L.231-1.
This sum may not be less than one-tenth of the share capital stipulated in the articles of association or, for companies other than cooperatives, less than the minimum amount of capital required for the form of the company in question by the acts governing this.
Cooperative associations shall be definitively formed after the payment of this amount of one-tenth.
Article L231-6 Each member may withdraw from the company when this seems appropriate thereto unless agreements stipulate to
the contrary and except where the first paragraph of Article L.231-5 applies. It may be stipulated that the general meeting is entitled to decide, by the majority fixed for amending the articles of
association, that one or more of the members shall cease to belong to the company. The member who ceases to belong to the company, either due to their own choice or following a decision by the
general meeting, shall remain bound, for five years, towards the members and third parties, by all the obligations existing at the time of their withdrawal.
Article L231-7 The company, whatever its form, shall be validly represented in court by its directors.
Article L231-8 The company shall not be dissolved by the death or withdrawal of a member, by a winding-up judgment, by a
measure prohibiting the exercise of a commercial profession, by a prohibition measure ordered with regard to one of the members or by the insolvency of a member. It shall continue ipso jure between the other members.
CHAPTER II
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COMMERCIAL CODE Financial statements Articles L232-1 to
L232-23
SECTION I Accounting documents Articles L232-1 to
L232-6
Article L232-1 I.- At the end of each financial year, the board of directors, management or managers shall prepare the inventory
and annual accounts in accordance with the provisions of Section 2 of Chapter III of Title II of Book I and shall prepare a written annual report. They shall attach to the balance sheet:
1° A list of the sureties and guarantees given by the company. This provision shall not apply to companies operating a credit institution or an insurance company;
2° A list of the securities granted thereby. II.- The annual report shall set out the situation of the company during the previous financial year, its forecast
development, the important events which have occurred between the end date of the financial year and the date when this report is prepared and its activities in terms of research and development.
III.- The documents indicated in this article shall, if applicable, be provided to the auditors in accordance with the conditions determined by a Conseil d'Etat decree.
Article L232-2 In commercial companies meeting one of the criteria defined by a Conseil d'Etat decree and drawn from the number
of employees or the turnover, possibly taking into account the nature of the activity, the board of directors, management or managers shall be required to prepare a statement of the liquid and current assets, excluding operating assets, and the current liabilities, a projected profit and loss account and a financing table at the same time as the annual balance sheet and a projected financing plan.
The Conseil d'Etat decree indicated above shall specify the frequency, deadlines and terms of preparation of these documents.
In order to determine the number of employees, those employees of companies, whatever their form, in which the company directly or indirectly holds over half of the capital shall be regarded as employees of the company.
Article L232-3 In public limited companies, the documents referred to in Article L.232-2 shall be analysed in written reports on the
development of the company, prepared by the board of directors or management. The documents and reports shall be notified simultaneously to the supervisory board, auditor and works council.
If the provisions of Article L.232-2 and the above paragraph are not observed, or if the information given in the reports referred to in the above paragraph requires observations therefrom, the auditor shall indicate these in a report to the board of directors or management, as applicable. The auditor’s report shall be notified simultaneously to the works council. This report shall be brought to the attention of the next general meeting.
Article L232-4 In companies other than public limited companies, the reports specified in Article L.232-3 shall be prepared by the
managers who shall submit them to the auditor, works council and, if applicable, supervisory board when this is established in these companies.
If the provisions of Article L.232-2 and the above paragraph are not observed, or if the information given in the reports referred to in the above paragraph requires observations therefrom, the auditor shall indicate these in a report to the manager or in the annual report. The auditor may request that the report is sent to the members or that it is brought to the attention of the meeting of members. This report shall be notified to the works council.
Article L232-5 Companies which prepare consolidated financial statements in accordance with Articles L.233-18 to L.233-26 may,
in accordance with the conditions specified in Article L.123-17 and as an exception to Article L.123-18, enter the shares of the companies which they exclusively control, within the meaning of Article L.233-16, into the assets side of the balance sheet according to the portion of equity capital, determined in line with the consolidation rules, which these shares represent. This valuation method, if chosen, shall apply to all the shares meeting the above conditions. This choice shall be indicated in the annex.
The contra of the annual variation in the total portion of equity capital representing these shares shall not constitute an item in the results. It shall be entered separately as an equity capital item. It shall not be distributable and may not be used to offset losses. However, if the total difference becomes negative, it shall be entered in the profit and loss account.
If a company uses the method specified in the above paragraphs, the companies which it controls shall apply the same method when they themselves control other companies in accordance with the same conditions.
A Conseil d'Etat decree shall fix the terms for applying this article.
Article L232-6 When, in accordance with the conditions defined in Article L.123-17, amendments are made to the presentation of
the annual accounts and the valuation methods used, these shall also be indicated in the annual report and, if
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COMMERCIAL CODE applicable, in the auditors’ report.
SECTION II Documents specific to companies making a public offering Articles L232-7 to
L232-8
Article L232-7 Companies whose shares are accepted for trading in a regulated market shall be required to annex to their annual
accounts an inventory of the securities held in the portfolio at the end of the financial year. They shall also annex a table relating to the distribution and allocation of the distributable sums which shall be
proposed to the general meeting. These companies, with the exception of investment companies with variable capital, shall also be required to
establish and publish, at the latest within four months of the first half of the financial year, a report commenting on the information in figures relating to the turnover and results of the company during the last half-year and describing its activity during this period, its projected development during the financial year and the important events which occurred during the first half-year. The text which must be included in the half-year report and the terms of its publication shall be fixed by a Conseil d'Etat decree. The auditors shall verify the truthfulness of the information contained in the half-year report.
Article L232-8 (Order No 916 of 19 September 2000, Article 4 and Annex II, Official Gazette of 22 September 2000 in force on 1 January 2002)
When half of their capital belongs to one or more companies whose shares are accepted for trading in a regulated market, the companies whose shares are not accepted for this and those which do not have the form of joint-stock companies shall be required, if their balance sheet exceeds 3 000 000 euro or if the inventory value or the stock-market value of their portfolio exceeds 300 000 euro, to annex to their annual accounts an inventory of the securities held in the portfolio at the end of the financial year.
SECTION III Depreciation and provisions Article L232-9
Article L232-9 Subject to the provisions of the second paragraph of Article L.232-15, the expenses of forming the company shall
be depreciated before any distribution of profits and, at the latest, within five years. The expenses of increasing the capital shall be depreciated at the latest by the end of the fifth financial year
following that in which these expenses were incurred. These expenses may be charged to the amount of the premiums relating to this increase.
However, companies whose exclusive object is construction and the management of rented buildings mainly for residential use or property leasing and property companies for trade and industry may depreciate the expenses of forming the company and the expenses of increasing the capital in accordance with the same conditions as their property. Companies approved for financing telecommunications may depreciate the formation expenses and increase in capital expenses in accordance with the same conditions as their property and equipment.
SECTION IV Profits Articles L232-10 to
L232-20
Article L232-10 With any decision to the contrary being invalid, in limited liability companies and joint-stock companies a deduction
of at least one-twentieth, allocated to the formation of a reserve fund referred to as the “legal reserve”, shall be made from the profits for the financial year less, if applicable, the previous losses.
This deduction shall cease to be compulsory when the reserve reaches one-tenth of the share capital.
Article L232-11 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The distributable profit consists of the profit for the period, less the losses brought forward, plus the sums carried forward pursuant to the law or the memorandum and articles of association, plus the profit brought forward.
The general meeting may, moreover, decide to distribute sums taken from the reserves available to it. In which case, the decision expressly indicates the reserve headings from which they are taken. The dividends are nevertheless taken primarily from the distributable profit for the period.
Unless a capital reduction is taking place, no distribution can be made to the shareholders when the share capital is, or would thereby become, lower than the amount of the capital plus the reserves which the law or the memorandum and articles of association require in order for distribution to take place.
The revaluation differential is not distributable. It may be wholly or partly incorporated into the capital.
Article L232-12 After the annual accounts are approved and the existence of distributable sums is recorded, the general meeting
shall determine the part allocated to the members in the form of dividends.
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COMMERCIAL CODE However, when a balance sheet established during or at the end of the financial year and certified by an auditor
shows that the company, since the end of the previous financial year, after allowing for the necessary depreciation and reserves, having deducted, if applicable, the previous losses and the sums to be entered in reserve pursuant to the law or articles of association and taking into account the profits carried forward, has made a profit, interim dividends may be distributed before the approval of the accounts for the financial year. The amount of these interim dividends may not exceed the amount of the profit defined in this paragraph. They shall be distributed in accordance with the conditions and terms fixed by a Conseil d'Etat decree.
Any dividend distributed in breach of the rules indicated above shall be a sham dividend.
Article L232-13 The terms for paying the dividends voted by the general meeting shall be fixed thereby or, failing this, by the board
of directors, management or managers, as applicable. However, the payment of dividends must occur within a maximum period of nine months after the end of the
financial year. The extension of this period may be agreed by a court decision.
Article L232-14 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The memorandum and articles of association may allot an increase in dividends, with a ceiling of 10%, to any shareholder who can show a registered contribution of at least two years' duration at the year-end which was still current on the date of payment of the dividends. The rate thereof is determined by the extraordinary general meeting. In companies whose shares are quoted on a regulated stock market, the number of shares eligible for this increase in dividends for a single shareholder cannot exceed 0.5% of the company's capital. The same increase may be allotted, under the same terms and conditions, in the event of free shares being distributed.
This increase cannot be allotted before the close of the second financial year following the amendment to the memorandum and articles of association.
Article L232-15 It is prohibited to stipulate fixed or interim interest to the benefit of members. Any clause to the contrary shall be
deemed to be unwritten. The provisions of the above paragraph shall not apply when the State has granted the guarantee of a minimum
dividend to the shares.
Article L232-16 The articles of association may specify the allocation, by way of an initial dividend, of interest calculated on the
paid-up and non-redeemed amount of the shares. Unless otherwise specified in the articles of association, the reserves shall not be taken into account when calculating the initial dividend.
Article L232-17 The company may not request from shareholders any repayment of dividends, except when the following two
conditions are met: 1° If the distribution has been carried out in breach of the provisions of Articles L.232-11, L.232-12 and L.232-15; 2° If the company establishes that the recipients knew about the irregular nature of this distribution at the time of this
or could not have been unaware of this given the circumstances.
Article L232-18 In joint-stock companies, the articles of association may specify that the meeting ruling on the accounts for the
financial year shall have the option of granting to each shareholder, for all or part of the dividend distributed or the interim dividends, a choice between the payment of the dividend or interim dividends in cash or in shares.
When there are different categories of shares, the general meeting ruling on the accounts for the financial year shall have the option of deciding that the subscribed shares shall be of the same category as the shares having conferred the right to the dividend or interim dividends.
The offer to pay the dividend or interim dividends in shares must be made simultaneously to all shareholders.
Article L232-19 The issue price of shares issued in accordance with the conditions specified in Article L.232-18 may not be less
than the face value. In companies in which the shares are accepted for trading in a regulated market, the issue price may not be less
than 90% of the average price quoted in the twenty trading sessions prior to the day of the distribution decision, less the net amount of the dividend or interim dividends.
In other companies, the issue price shall be fixed, at the choice of the company, either by dividing the amount of the net assets calculated according to the most recent balance sheet by the number of existing shares or according to the opinion of an expert appointed by the courts at the request of the board of directors or management, as applicable. The application of the rules determining the issue price shall be verified by the auditor who shall submit a special report to the general meeting referred to in Article L.232-18.
When the amount of the dividends or interim dividends to which the shareholder is entitled does not correspond to a round number of shares, the latter may receive the number of shares immediately below plus a balancing cash adjustment or, if the general meeting has requested this, the number of shares immediately above by paying the difference in cash.
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COMMERCIAL CODE Article L232-20
The request for payment of the dividend in shares, accompanied, if applicable, by the payment specified in the second paragraph of Article L.232-19, must be made within a period fixed by the general meeting but which may not be more than three months from the date of said general meeting. The increase in capital shall be carried out due solely to this request and, if applicable, to this payment and shall not give rise to the formalities specified in Article L.225-142, in the second paragraph of Article L.255-144 and in Article L.255-146.
However, in the event of an increase in capital, the board of directors or the management, as applicable, may suspend the exercise of the right to obtain the payment of the dividend in shares for a period which may not exceed three months.
During its first meeting following the expiration of the period fixed by the general meeting pursuant to the first paragraph of this article, the board of directors or, as applicable, the management shall record the number of shares issued pursuant to this article and shall make the necessary amendments to the clauses of the articles of association relating to the amount of the share capital and the number of shares representing this. The chairman may, with authority from the board of directors or management, carry out these operations in the month following the expiration of the period fixed by the general meeting.
SECTION V Publication of accounts Articles L232-21 to
L232-23
Article L232-21 I.- General partnerships in which all the indefinitely liable partners are limited liability companies or joint-stock
companies shall be required to file, in duplicate, with the court registry, in order to be annexed to the commercial and companies register, in the month following approval of the annual accounts by the routine meeting of partners:
1° The annual accounts, annual report and, if applicable, consolidated financial statements, group annual report and auditors’ reports on the annual accounts and consolidated financial statements, possibly supplemented by the latter’s observations on the amendments made by the meeting which have been submitted thereto;
2° The result allocation proposal submitted to the meeting and the allocation resolution voted on or the allocation decision made.
II.- In the event of refusal of approval or acceptance, a copy of the deliberations of the meeting shall be filed within the same period.
III.- The obligations defined above shall also be imposed on general partnerships in which all the indefinitely liable partners are general partnerships or limited partnerships in which all the indefinitely liable partners are limited liability companies or joint-stock companies.
IV.- In order to apply this article, companies governed by foreign law with a comparable legal form shall be regarded as limited liability companies or joint-stock companies.
Article L232-22 I.- All limited liability companies shall be required to file, in duplicate, with the court registry, in order to be annexed
to the commercial and companies register, in the month following approval of the annual accounts by the routine meeting of partners or by the sole proprietor:
1° The annual accounts, annual report and, if applicable, consolidated financial statements, group annual report and auditors’ reports on the annual accounts and consolidated financial statements, possibly supplemented by the latter’s observations on the amendments made by the meeting or sole proprietor to the annual accounts which have been submitted thereto;
2° The result allocation proposal submitted to the meeting or to the sole proprietor and the allocation resolution voted on or the allocation decision made.
II.- In the event of refusal of approval or acceptance, a copy of the deliberations of the meeting or of the decision of the sole proprietor shall be filed within the same period.
Article L232-23 I.- All joint-stock companies shall be required to file, in duplicate, with the court registry, in order to be annexed to
the commercial and companies register, in the month following approval of the annual accounts by the general meeting of shareholders:
1° The annual accounts, annual report and auditors’ report on the annual accounts, possibly supplemented by the latter’s observations on the amendments made by the meeting to the annual accounts which have been submitted thereto and, if applicable, the consolidated financial statements, group annual report, auditors’ report on the consolidated financial statements and report of the supervisory board;
2° The result allocation proposal submitted to the meeting and the allocation resolution voted on. II.- In the event of refusal of approval of the annual accounts, a copy of the deliberations of the meeting shall be filed
within the same period.
CHAPTER III Subsidiaries, shares and controlled companies Articles L233-1 to
L233-31
SECTION I
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COMMERCIAL CODE Definitions Articles L233-1 to
L233-5
Article L233-1 When a company owns more than half of the capital of another company, the second company shall be regarded, in
order to apply this chapter, as a subsidiary of the first company.
Article L233-2 When a company owns, in another company, a percentage of the capital of between 10 and 50%, the first company
shall be regarded, in order to apply this chapter, as having a holding in the second company.
Article L233-3 (Act No. 2001-420 of 15 May 2001 Art. 120 I Official Journal of 16 May 2001) (Act No. 2001-1168 of 11 December 2001 Art. 28 I Official Journal of 12 December 2001) (Act No. 2005-842 of 26 July 2005 Art. 33 I Official Journal of 27 July 2005)
I. - For the purposes of sections 2 and 4 of the present chapter, a company is deemed to control another company: 1 When it directly or indirectly holds a fraction of the capital that gives it a majority of the voting rights at that
company's general meetings; 2 When it alone holds a majority of the voting rights in that company by virtue of an agreement entered into with
other partners or shareholders and this is not contrary to the company's interests; 3 When it effectively determines the decisions taken at that company's general meetings through the voting rights it
holds; 4 When it is a partner in, or shareholder of, that company and has the power to appoint or dismiss the majority of
the members of that company's administrative, management or supervisory structures. II. - It is presumed to exercise such control when it directly or indirectly holds a fraction of the voting rights above
40% and no other partner or shareholder directly or indirectly holds a fraction larger than its own. III. - For the purposes of the same sections of the present chapter, two or more companies acting jointly are
deemed to jointly control another company when they effectively determine the decisions taken at its general meetings.
Article L233-4 Any capital held, even where this is less than 10%, by a controlled company shall be regarded as being indirectly
held by the company controlling the latter.
Article L233-5 The procureur de la République and the Stock Exchange Committee for companies making a public offering shall
be authorised to bring legal proceedings in order to ensure that the existence of control over one or more companies is recorded.
SECTION II Notifications and information Articles L233-6 to
L233-15
Article L233-6 When a company has acquired, during a financial year, a holding in a company whose registered office is in the
territory of the French Republic, representing over one-twentieth, one-tenth, one-fifth, one-third or half of the capital of this company, or has obtained control of such a company, this shall be indicated in the report presented to the members on the operations for the financial year and, if applicable, in the auditors’ report.
The board of directors, management or manager of a company shall record, in their report, the activity and results of the whole company, the subsidiaries of the company and the companies which it controls by sector of activity. When this company prepares and publishes consolidated financial statements, the report indicated above may be included in the group annual report indicated in Article L.233-26.
Article L233-7 (Act No. 2001-420 of 15 May 2001 Art. 119 3 Official Journal of 16 May 2001) (Act No. 2003-706 of 1 August 2003 Art. 46 I 2, Art. 125 3 Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 51 XV Official Journal of 26 June 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 XXVII Official Journal of 10 December 2004) (Act No. 2005-842 of 26 July 2005 Art. 33 II Official Journal of 27 July 2005)
I. - When the shares of a company having its registered office in France are admitted to trading on a regulated market or a financial instruments market which permits trading in shares which may be entered in the books of an authorised intermediary as provided for in Article L211-4 of the Monetary and Financial Code, any natural person or legal entity, acting alone or jointly, who comes into possession of a number of shares representing more than one twentieth, one tenth, three twentieths, one fifth, one quarter, one third, one half, two thirds, eighteen twentieths or nineteen twentieths of the capital or voting rights shall inform the company of the total number of shares or voting rights it holds within a time limit determined in a Conseil d'Etat decree commencing on the day on which the equity participation threshold was exceeded.
The information specified in the previous paragraph is also reported, within the same time limit, if the equity participation or voting rights fall below the thresholds indicated in that paragraph.
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COMMERCIAL CODE Persons required to provide the information indicated in the first paragraph shall indicate the number of securities
they hold which give deferred access to the capital, as well as the voting rights attached thereto. II. - Persons required to provide the information indicated in I shall also inform the Financial Markets Authority,
within a time limit and under terms and conditions determined in its general regulations, as soon as the participation threshold is exceeded, when the company's shares are admitted to trading on a regulated market or a financial instruments market other than a regulated market, at the request of the person managing that financial instruments market. This information is published as determined in the General Regulations of the Financial Markets Authority.
The general regulations also specify the method for calculating participation thresholds. III. - The company's memorandum and articles of association may impose an additional reporting obligation relating
to the holding of fractions of the capital or voting rights below the one twentieth referred to in I. The obligation relates to the holding of each such fraction, which cannot be below 0.5% of the capital or voting rights.
IV. - The reporting obligations stipulated in I, II and III do not apply to: 1 Shares acquired solely for the purposes of clearing, settling or delivering financial instruments within the
framework of the regular short-term settlement cycle described in the General Regulations of the Financial Markets Authority;
2 Shares held by book-keeping custodians in connection with their book-keeping and custodial activities; 3 Shares held in the trading portfolio of an investment service provider within the meaning of (EC) Council Directive
93/6, of 15 March 1993 concerning the adequacy of the funds of credit investment companies, provided that such shares do not represent a percentage of the capital or voting rights of their issuer above a threshold set in the General Regulations of the Financial Markets Authority and that the voting rights attached to those securities are not exercised or otherwise used to participate in the issuer's management;
4 Shares lodged with members of the European System of Central Banks or lodged by them in the performance of their duties as monetary authorities, as determined in the General Regulations of the Financial Markets Authority.
V. - The reporting obligations stipulated in I, II and III do not apply: 1 To a market maker when the threshold of one twentieth of the capital or voting rights is exceeded in connection
with market making, provided that he does not participate in the issuer's management within the meaning of the General Regulations of the Financial Markets Authority;
2 When the person referred to in I is controlled, within the meaning of Article L233-3, by an entity subject to the obligation laid down in I to III for the securities held by that person or if that entity is itself controlled, within the meaning of Article L233-3, by an entity subject to the obligation laid down in I to III for those same shares.
VI. - In the event of the reporting obligation referred to in III not being complied with, the company's memorandum and articles of association may provide for the provisions of the first two paragraphs of Article L233-14 to apply only if requested by one or more shareholders holding a fraction of the issuing company's capital or voting rights at least equal to the smallest capital holding which must be declared, and subject to this being duly recorded in the minutes of the general meeting. This fraction shall nevertheless not exceed 5%.
VII. - When the company's shares are admitted to trading on a regulated market, the person required to provide the information indicated in I shall also declare the objectives to be pursued during the next twelve months whenever the thresholds of one tenth or one fifth of the capital or voting rights are exceeded. The said declaration shall indicate whether the buyer is acting alone or jointly, whether it envisages making further acquisitions, whether it is seeking to acquire a controlling interest in the company, directorships for itself or for one or more other persons, or seats on the executive board or the Supervisory Board. It is sent to the company whose shares have been acquired and to the Financial Markets Authority within ten trading days. The said information is published as determined in the General Regulations of the Financial Markets Authority. If the stated objectives change, and this can occur only in the event of major changes in the environment, situation or shareholder base of the persons concerned, a new declaration, published in the same way, shall be made and sent to the company and the Financial Markets Authority.
Article L233-8 (Act No. 2003-706 of 1 August 2003 Art. 46 I Official Journal of 2 August 2003) (Act No. 2005-842 of 26 July 2005 Art. 33 III Official Journal of 27 July 2005)
I. - Within fifteen days at most of an ordinary general meeting, all joint-stock companies must inform their shareholders of the total number of voting rights existing on that date. If, between two ordinary General Meetings, the number of voting rights varies by a percentage determined by order of the Minister for the Economy in relation to the number previously declared, the company must inform its shareholders on becoming aware thereof.
II. - Under terms and conditions determined in the General Regulations of the Financial Markets Authority, companies having shares which are admitted to trading on a regulated market publish the total number of voting rights and the number of shares that make up the company's capital each month if they have varied in relation to those previously published. Such companies are deemed to have fulfilled the obligation referred to in I.
Article L233-9 (Act No. 2005-842 of 26 July 2005 Art. 33 IV Official Journal of 27 July 2005)
I. - The following are treated as shares or voting rights owned by the person required to provide the information referred to in I of Article L233-7:
1 Shares or voting rights owned by other persons on behalf of that person; 2 Shares or voting rights owned by companies which control that person within the meaning of Article L233-3; 3 Shares or voting rights owned by a third party with whom that person acts jointly; 4 Shares or voting rights which that person or a person referred to in 1 to 3 above is entitled to acquire on its own
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COMMERCIAL CODE initiative by virtue of an agreement;
5 Shares in respect of which that person is the usufructuary; 6 Shares or voting rights owned by a third party with whom that person has entered into a temporary transfer
agreement covering those shares or voting rights; 7 Shares lodged with that person, provided that it may exercise the voting rights attached to them as it chooses in
the absence of specific instructions from the shareholders; 8 Voting rights which that person may freely exercise by virtue of a power of attorney in the absence of specific
instructions from the shareholders concerned. II. The following are not treated as shares or voting rights owned by the person required to provide the information
referred to in I of Article L233-7: 1 Securities held by undertakings for collective investment in transferable securities managed by a portfolio
management company controlled by that person within the meaning of Article L233-3, barring any exception provided for in the General Regulations of the Financial Markets Authority;
2 Securities held in a portfolio managed by an investment service provider controlled by that person within the meaning of Article L233-3, in the context of a portfolio management service provided to third parties as envisaged in the General Regulations of the Financial Markets Authority, barring any exception provided for in those same general regulations.
Article L233-10 (Law No 2001-420 of 15 May 2001 Article 121 Official Gazette of 16 May 2001) (Law No 2001-1168 of 11 December 2001 Article 28 (II) Official Gazette of 12 December 2001) (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
I. - Persons who have entered into an agreement with a view to buying or selling voting rights or with a view to exercising voting rights to implement a policy in relation to a company are deemed to be acting in concert.
II. - Such an agreement is presumed to exist: 1. Between a company, the chairman of its board of directors and its general managers or the members of its
executive board or its partners; 2. Between a company and the companies it controls within the meaning of Article L. 233-3; 3. Between companies controlled by the same person or persons; 4. Between the partners in a simplified joint-stock company in relation to the companies it controls. III. - Persons acting in concert are jointly and severally bound by the obligations imposed on them by the laws and
regulations.
Article L233-11 (Law No 2001-420 of 15 May 2001 Article 1 Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 46 (I) (4) Official Gazette of 2 August 2003)
Any clause in an agreement which allows preferential terms and conditions to be applied to the sale and purchase of shares which are quoted on a regulated stock market and which amount to at least 0.5% of the capital or voting rights of the company which issued those shares must be submitted within five trading days of the signing of the agreement or of the addendum containing the clause concerned to the company and to the Financial Markets Authority. Failing such submission, the effects of that clause are suspended, and the parties are released from their undertakings while any public offer of sale is in progress.
The company and the Financial Markets Authority must also be informed of the date on which the clause lapses. Clauses in agreements entered into before the date of publication of Law No. 2001-420 of 15 May 2001 relating to
the new financial regulations which had not been sent to the Financial Markets Authority by that date must be sent to it in the same way, within six months, and subject to the effects indicated in the first paragraph.
The information referred to in the preceding paragraphs is published as prescribed in the general regulations of the Financial Markets Authority.
Article L233-12 When a company is directly or indirectly controlled by a joint-stock company, it shall notify the latter and each of the
companies participating in this control of the amount of the shares which it has directly or indirectly in their respective capital and the variations in this amount.
The notifications shall be made within one month of either the date when the assumption of control became apparent to the company with regard to the shares which it held before this date or the date of the transaction for the subsequent acquisitions or disposals.
Article L233-13 (Act No. 2005-842 of 26 July 2005 Art. 33 VI Official Journal of 27 July 2005)
Based on the information received pursuant to Articles L233-7 and L233-12, the report presented to the shareholders on the business during the accounting period indicates the identity of any natural person or legal entity directly or indirectly holding more than one twentieth, one tenth, three twentieths, one fifth, one quarter, one third, one half, two thirds or nineteen twentieths of the authorised capital or voting rights at General Meetings. It also indicates any changes during the accounting period, as well as the names of the controlled companies and the portion of the company's capital held by them. Where applicable, this information is noted in the auditors' report.
Article L233-14
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COMMERCIAL CODE (Act No. 2003-7 of 3 January 2003 Art. 50 II Official Journal of 4 January 2003) (Act No. 2003-706 of 1 August 2003 Art. 46 I 5, V 1, 2 Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 51 XV bis Official Journal of 26 June 2004) (Act No. 2005-842 of 26 July 2005 Art. 33 VII Official Journal of 27 July 2005)
If they have not been properly declared as stipulated in I and II of Article L233-7, shares in excess of the fraction which should have been declared, when they are admitted to trading on a regulated market or a financial instruments market which permits trading in shares which may be entered in the books of an authorised intermediary as provided for in Article L211-4 of the Monetary and Financial Code, are stripped of the voting right for any shareholders' meeting held within two years of the date of effective notification.
In the same circumstances, the voting rights attached to those shares which have not been properly declared cannot be exercised or delegated by the defaulting shareholder.
A shareholder who has not made the declaration referred to in VII of Article L233-7 is stripped of the voting rights attached to the securities exceeding the fraction of one tenth or one fifth referred to in that same paragraph for any shareholders' meeting held within two years of the date of effective notification.
The commercial court having jurisdiction at the place where the company has its registered office may, having sought the opinion of the public prosecutor, and at the request of the company's chairman, a shareholder or the Financial Markets Authority, order a total or partial suspension of voting rights, for a period not exceeding five years, against any shareholder who has not made the declarations referred to in Article L233-7 or who failed to respect the content of the declaration referred to in VII of that same article during the twelve-month period following its publication as stipulated in the General Regulations of the Financial Markets Authority.
Article L233-15 The board of directors, management or manager of any company with subsidiaries or shares shall annex to the
company’s balance sheet a table showing the situation of these subsidiaries or shares.
SECTION III Consolidated financial statements Articles L233-16 to
L233-28
Article L233-16 (Law No 2003-706 of 1 August 2003 Article 133 Official Gazette of 2 August 2003)
I. - Each year, the board of directors, the executive board or the chief executive(s) of commercial companies, as applicable, draw up and publish consolidated accounts and a group management report in respect of any companies which they control, either solely or jointly, or over which they exert a significant influence as defined hereunder.
II. - Sole control of a company exists: 1. When a majority of its voting rights are held by another company; 2. When a majority of the members of its administrative structures are designated by another company for two
successive financial years. The consolidating company is deemed to have effected such designations if, during that financial year, it held a fraction of the voting rights greater than 40%, and if no other partner or shareholder directly or indirectly held a fraction greater than its own;
3. When a dominant interest is exerted over the company by virtue of a contract or the terms and conditions of its memorandum and articles of association, when the applicable law allows this (1).
III. - Joint control exists when control of a company operated jointly by a limited number of partners or shareholders is shared and decisions are made on the basis of agreement between them.
IV. - Significant influence over a company's management and its financial policy is deemed to exist when another company directly or indirectly holds a fraction of its voting rights equal to at least one fifth.
NB (1): Law 2003-721 Article 133 II: The provisions of this paragraph apply with effect from the first financial year commencing after publication of Law No. 2003-76 of 1 August 2003 in the Official Gazette.
Article L233-17 As an exception to the provisions of Article L.233-16, the companies indicated in said article, with the exception of
those issuing securities accepted for trading in a regulated market or negotiable debt securities, shall be exempt, in accordance with the conditions fixed by a Conseil d'Etat decree, from the obligation to prepare and publish consolidated financial statements and a group annual report:
1° When they are themselves under the control of an undertaking which includes them in its consolidated and published accounts. In this case, however, the exemption shall be subject to the condition that one or more shareholders or members of the controlled undertaking representing at least one-tenth of its share capital do not object to this;
2° Or when the whole formed by a company and the undertakings which it controls does not exceed, for two successive financial years, based on the last made-up annual accounts, a size determined by reference to two of the three criteria indicated in Article L.123-16.
Article L233-18 (Order No. 2004-1382 of 20 December 2004 Art. 2 Official Journal of 22 December 2004)
The accounts of companies subject to the exclusive control of the consolidating company are consolidated via global integration.
The accounts of companies controlled by the consolidating company jointly with other shareholders or members are
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COMMERCIAL CODE consolidated via proportional integration.
The accounts of companies over which the consolidating company exercises considerable influence are consolidated via equity accounting.
NB: Order 2004-1382 2004-12-20 Art. 12: The provisions of the present order shall apply with effect from the first financial year commenced on or after 1 January 2005.
Article L233-19 I.- Subject to this being justified in the annex prepared by the consolidating company, a subsidiary or holding shall
be left out of the consolidation when severe and lasting restrictions significantly call into question the control or influence exercised by the consolidating company over the subsidiary or holding or the possibilities for funds transfers by the subsidiary or holding.
II.- Subject to the same condition, a subsidiary or holding may be left out of the consolidation when: 1° The shares of this subsidiary or holding are held only with a view to their subsequent assignment; 2° The subsidiary or holding represents, alone or with others, only a negligible interest in relation to the aim defined
in Article L.233-21; 3° The information needed to prepare the consolidated financial statements cannot be obtained without excessive
cost or within the periods compatible with those fixed pursuant to the provisions of Article L.233-27.
Article L233-20 The consolidated financial statements shall include the consolidated balance sheet and profit and loss account and
an annex: they shall form an inseparable whole. To this end, undertakings included in the consolidation shall be required to provide the consolidating company with
the information needed to prepare the consolidated financial statements. The consolidated financial statements shall be prepared and published according to the terms fixed by a Conseil
d'Etat decree adopted following an opinion from the National Accounting Board. This decree shall determine in particular the classification of the elements of the balance sheet and profit and loss account and the information to be included in the annex.
Article L233-21 The consolidated financial statements must be honest and truthful and ensure a faire representation of the assets,
financial situation and results of the whole formed of the undertakings included in the consolidation. If applicable, the provisions specified in the first and second paragraphs of Article L.123-14 shall apply.
Article L233-22 Subject to the provisions of Article L.233-23, consolidated financial statements shall be prepared according to the
accounting principles and valuation rules of this code, taking into account the essential adjustments resulting from the characteristics specific to consolidated financial statements in relation to annual accounts.
The assets and liabilities elements and the expenditure and income elements included in the consolidated financial statements shall be valued according to similar methods, except where the necessary reworkings would lead to disproportionately high expenses and would have a negligible effect on the consolidated assets, financial situation and results.
Article L233-23 Subject to this being justified in the annex, the consolidating company may use, in accordance with the conditions
specified in Article L.123-17, valuation rules fixed by a regulation of the Committee on Accounting Rules, and intended: 1° To take account of price variations or replacement values; 2° To value the wasting assets by taking into account that the first item out is the last item in; 3° To allow rules not complying with those fixed by Articles L.123-18 to L.123-21 to be taken into account.
Article L233-24 (Order No. 2004-1382 of 20 December 2004 Art. 1 Official Journal of 22 December 2004)
When they apply the international accounting standards adopted by a regulation of the European Commission, commercial companies which draw up and publish consolidated accounts within the meaning of Article L. 233-16 are exempted from complying with the accounting rules laid down in Articles L. 233-18 to L. 233-23 when drawing up and publishing their consolidated accounts.
NB: Order 2004-1382 2004-12-20 Art. 12: The provisions of the present order shall apply with effect from the first financial year commenced on or after 1 January 2005.
Article L233-25 Subject to this being justified in the annex, consolidated financial statements may be prepared at a different date
from that of the annual accounts of the consolidating company. If the end date of the financial year of an undertaking included within the consolidation is more than three months
before the end date of the consolidation financial year, the consolidated financial statements shall be prepared on the basis of interim accounts checked by an auditor or, if there is no auditor, by a professional responsible for supervising the accounts.
Article L233-26 The group annual report shall set out the situation of the whole formed by the undertakings included within the
consolidation, its anticipated development, the important events which occurred between the end date of the
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COMMERCIAL CODE consolidation financial year and the date when the consolidated financial statements were prepared and its research and development activities. This report may be included in the annual report indicated in Article L.232-1.
Article L233-27 A Conseil d'Etat decree shall fix the conditions in accordance with which the consolidated financial statements and
the group annual report shall be provided to the auditors.
Article L233-28 Legal persons having the capacity of trader and which publish consolidated financial statements, although not being
required to do so due to their legal form or the size of the whole group, shall comply with the provisions of Articles L.233-16 and L.233-18 to L.233-27. In this case, when their annual accounts are certified in accordance with the conditions specified in the first paragraph of Article L.225-235, their consolidated financial statements shall be certified in accordance with the conditions of the second paragraph of this article.
SECTION IV Reciprocal shares Articles L233-29 to
L233-31
Article L233-29 A joint-stock company may not own shares in another company if the latter holds a percentage of its capital higher
than 10%. Failing agreement between the companies involved in order to regularise the situation, the company holding the
smallest percentage of the capital of the other company shall dispose of its investment. If the reciprocal investments are the same size, each company shall reduce its investment so that this does not exceed 10% of the capital of the other.
When a company is required to dispose of shares in another company, the disposal shall be carried out within the period fixed by a Conseil d'Etat decree. The company may not exercise the voting rights attached to these shares.
Article L233-30 If a company other than a joint-stock company has among its members a joint-stock company holding a percentage
of its capital higher than 10%, it may not hold shares issued by the latter. If it comes into possession of these, it must dispose of these within the period fixed by a Conseil d'Etat decree and it
may not, as a result of these, exercise the voting rights. If a company other than a joint-stock company has among its members a joint-stock company holding a percentage
of its capital equal to or less than 10%, it may hold only a percentage equal to or less than 10% of the shares issued by the latter.
If it comes into possession of a higher percentage, it must dispose of the excess within the period fixed by a Conseil d'Etat decree and it may not, as a result of this excess, exercise the voting rights.
Article L233-31 When shares or voting rights in a company are owned by one or more companies in which it directly or indirectly
holds control, the voting rights attached to these shares or these voting rights may not be exercised at the company’s general meeting. They shall not be taken into account when calculating the quorum.
CHAPTER IV Warning procedure Articles L234-1 to
L234-4
Article L234-1 (Act No. 2005-845 of 26 July 2005 Art. 162 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
If, in the performance of his duties, the auditor of a public limited company notes costs likely to compromise the continuity of the business, he shall inform the chairman of the board of directors or the executive board chairman thereof as prescribed in a Conseil d'Etat decree.
If no reply is received within fifteen days or if the reply received does not provide complete assurance of such continuity, the auditor shall request the chairman of the board of directors or the executive board chairman, in a letter copied to the presiding judge of the commercial court, to have the board of directors or the supervisory board deliberate the facts noted. The auditor shall be invited to that meeting. The minutes of the board of directors' meeting or supervisory board meeting shall be sent to the presiding judge of the commercial court and to the works council or, failing this, to the workers' representatives.
If these provisions are not complied with or if the auditor finds that, despite the decisions taken, the continuity of the business remains compromised, a general meeting shall be convened under conditions, and within a time limit, determined in a Conseil d'Etat decree. The auditor shall draw up a special report which is presented to that meeting. The said report is sent to the works council or, failing this, to the workers' representatives.
If, after the general meeting, the auditor finds that the decisions taken do not ensure the continuity of the business, he shall inform the presiding judge of the commercial court of his actions and send him his results.
Article L234-2 (Act No. 2005-845 of 26 July 2005 Art. 162 III Official Journal of 27 July 2005 effective 1 January 2006 without prejudice
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COMMERCIAL CODE to Art. 190)
In companies other than limited companies, the auditor asks the manager, in the manner prescribed in a Conseil d'Etat decree, to explain the facts referred to in the first paragraph of Article L234-1. The manager is required to reply to him within fifteen days. The reply is sent to the works council or, failing this, to the workers' representatives and, if there is one, to the supervisory board. The auditor informs the presiding judge of the commercial court thereof.
If these provisions are not complied with or if the auditor finds that, despite the decisions taken, the continuity of the business remains compromised, he shall draw up a special report and request the manager, in a letter copied to the presiding judge of the commercial court, to have a general meeting convened subject to the conditions and time limit determined in a Conseil d'Etat decree to deliberate the relevant facts.
If, after the general meeting, the auditor finds that the decisions taken do not ensure the continuity of the business, he shall inform the presiding judge of the commercial court of his actions and send him his results.
Article L234-3 The works council or, failing this, the workers' representatives, exercise the remits described in Articles L422-4 and
L432-5 of the Labour Code in commercial companies. The chairman of the board of directors, the executive board chairman or the executives, as applicable, send(s) the
auditors the questions formulated by the works council or the workers' representatives, the reports sent to the board of directors or the supervisory board, as applicable, and the replies from those structures, pursuant to Articles L422-4 and L432-5 of the Labour Code.
Article L234-4 (inserted by Act No. 2005-845 of 26 July 2005 Art. 162 IV Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The provisions of the present chapter do not apply when a conciliation or continuity procedure has been initiated by the executives pursuant to the provisions of Parts I and II of Book VI.
CHAPTER V Nullities Articles L235-1 to
L235-14
Article L235-1 The nullity of a company or an instrument amending the articles of association may result only from an express
provision in this book or from the acts governing the nullity of contracts. With regard to limited liability companies and joint-stock companies, the nullity of the company may not result either from a defect in consent or from prohibition, unless this affects all the founding partners. The nullity of the company may also not result from clauses prohibited by Article 1844-1 of the Civil Code.
The nullity of acts or deliberations other than those specified in the above paragraph may result only from the breach of a mandatory provision in this book or in the acts governing contracts.
Article L235-2 In general and limited partnerships, the fulfilment of the publication formalities shall be required in order for the
partnership, act or deliberations, as applicable, to be valid. However, the partners and the partnership may not rely on, with regard to third parties, this reason for nullity. Nevertheless, the court shall have the option of not pronouncing the nullity incurred if no fraud is identified.
Article L235-2-1 (inserted by Law No. 2003-706 of 1 August 2003 Article 134 (III) Official Gazette of 2 August 2003)
Decisions made in breach of the provisions that govern the voting rights attached to the shares are null and void.
Article L235-3 The action for nullity shall be extinguished when the reason for the nullity ceases to exist on the day when the court
rules on the merits at first instance, except where this nullity is based on the unlawfulness of the purpose of the company.
Article L235-4 The Tribunal de commerce hearing an action for nullity may, even automatically, fix a period for allowing the nullities
to be cured. The court may not pronounce the nullity less than two months after the date of the writ of summons. If, in order to cure a nullity, a meeting must be convened or the members must be consulted, and if the normal
convening of this meeting or the sending to the members of the text of the draft decisions accompanied by the documents which must be notified thereto is justified, the court shall grant, in a judgment, the time needed for the members to take a decision.
Article L235-5 If, on the expiration of the period specified in Article L.235-4, no decision has been taken, the court shall rule at the
request of the first to act.
Article L235-6 In the event of the nullity of a company or of acts and deliberations subsequent to its formation, based on a defect in
consent or the prohibition of a member, and when the situation may be regularised, any person having an interest in this
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COMMERCIAL CODE may send formal notice to the person able to carry this out either to regularise the situation or to bring an action for nullity within six months, otherwise this will be out of time. This formal notice shall be reported to the company.
The company or a member may submit to the court hearing the case, within the period specified in the above paragraph, any measure likely to rule out the interest of the plaintiff, particularly by repurchasing the latter’s rights in the company. In this case, the court may either pronounce the nullity or make the proposed measures compulsory, if these have been previously adopted by the company in accordance with the conditions specified for amendments to the articles of association. The vote of the member whose rights it is being requested to repurchase shall have no effect on the company’s decision.
In the event of a dispute, the value of the rights in the company to be reimbursed to the partner shall be determined in accordance with the provisions of Article 1843-4 of the Civil Code. Any clause to the contrary shall be deemed to be unwritten.
Article L235-7 When the nullity of acts and deliberations subsequent to the formation of the company is based on the breach of the
publication rules, any person having an interest in regularising the act may send the company formal notice to do so, within the period fixed by a Conseil d'Etat decree. Failing regularisation of the act within this period, any interested party may request the appointment, by a court decision, of a representative entrusted with fulfilling this formality.
Article L235-8 The nullity of a merger or division operation may result only from the nullity of the deliberations of one of the
meetings which decided on the operation or from the failure to file the conformity declaration referred to in the third paragraph of Article L.236-6.
When it is possible to remedy the irregularity likely to lead to nullity, the court hearing the action for nullity of a merger or division shall grant the interested companies a period to regularise the situation.
Article L235-9 (Order No. 2004-604 of 24 June 2004 Art. 51 XVI Official Journal of 26 June 2004)
Actions for nullity of the company or acts and deliberations subsequent to its formation shall lapse three years after the date on which the nullity is incurred, without prejudice to the debarment referred to in Article L. 235-6.
However, action for nullity of a merger or demerger of companies lapses six months after the date of the last entry in the register of companies made necessary by the operation.
An action for nullity founded on Article L. 225-149-3 lapses three months after the date of the general meeting following the decision to increase the capital.
Article L235-10 When the nullity of the company is pronounced, it shall be wound up in accordance with the provisions of the
articles of association and Chapter VII of this title.
Article L235-11 When a court decision pronouncing the nullity of a merger or division becomes final, this decision shall be published
in accordance with the terms fixed by a Conseil d'Etat decree. This decision shall have no effect on the obligations arising to the benefit or detriment of the companies to which the
assets are transferred between the date when the merger or division takes effect and that of the publication of the decision pronouncing the nullity.
In the event of a merger, the companies having participated in the operation shall be jointly and severally liable for complying with the obligations indicated in the above paragraph which are incumbent on the acquiring company. The same shall apply, in the event of a division, to the divided company in respect of the obligations of the companies to which the assets are transferred. Each of the companies to which the assets are transferred shall be responsible for the obligations incumbent thereon and arising between the date when the division takes effect and that of the publication of the decision pronouncing the nullity.
Article L235-12 Neither the company nor the members may rely on a nullity with regard to third parties acting in good faith.
However, the nullity resulting from prohibition or a defect in consent shall be binding even on third parties in respect of the person disqualified and their legal agents or the member whose consent has not been obtained due to error, fraud or duress.
Article L235-13 The action for damages based on the cancellation of the company or acts and deliberations subsequent to its
formation shall be prescribed three years after the date when the cancellation decision becomes final. The disappearance of the reason for the nullity shall not prevent the action for damages being brought which is
intended to compensate for the loss caused by the defect with which the company, act or deliberation was vitiated. This action shall be prescribed three years after the date when the nullity was cured.
Article L235-14 (inserted by Order No. 2004-274 of 25 March 2004 Art. 20 II Official Journal of 27 March 2004)
The fact of the chairman of the management and administration structures or the presiding chairman of those structures failing to record the deliberations of those structures in minutes shall cause the deliberations of the said structures to be declared null and void.
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COMMERCIAL CODE An action may be brought by any director, member of the executive board or member of the supervisory board. The action for nullity may be exercised until such time as the minutes of the second meeting of the board of
directors, the executive board or the supervisory board following the meeting whose deliberations are likely to be cancelled are approved.
It is subject to Articles L. 235-4 and L. 235-5.
CHAPTER VI Merger and division Articles L236-1 to
L236-24
SECTION I General provisions Articles L236-1 to
L236-7
Article L236-1 One or more companies may, by means of a merger, transfer their assets to an existing company or to a new
company which they shall form. One company may also, by means of a division, transfer its assets to several existing companies or to several new
companies. These options shall be open to companies being wound up provided that the distribution of their assets among the
members has not been started. The members of companies transferring their assets in the context of the operations indicated in the above three
paragraphs shall receive shares in the receiving company or companies and, possibly, a balancing cash adjustment whose amount may not exceed 10% of the face value of the shares allotted.
Article L236-2 The operations referred to in Article L.236-1 may be carried out between companies of different forms. They shall be decided, by each of the companies involved, in accordance with the conditions required for amending
their articles of association. If the operation involves the creation of new companies, each of these shall be formed according to the rules
specific to the form of company adopted. When the operations involve the participation of public limited companies and limited liability companies, the
provisions of Articles L.236-10, L.236-11, L.236-14, L.236-20 and L.236-21 shall apply.
Article L236-3 I.- The merger or division shall lead to the dissolution without winding-up of the companies which are disappearing
and the universal transfer of their assets to the receiving companies, in their current state on the date when the operation is finally carried out. It shall at the same time lead to the acquisition, by the members of the disappearing companies, of the capacity of members in the receiving companies, in accordance with the conditions determined by the merger or division agreement.
II.- However, shares in the receiving company shall not be exchanged for shares in the disappearing companies when these shares are held:
1° Either by the receiving company or by a person acting in their own name but on behalf of this company; 2° Or by the disappearing company or by a person acting in their own name but on behalf of this company.
Article L236-4 The merger or division shall take effect: 1° If one or more new companies are created, on the date of registration, in the commercial and companies register,
of the new company or the last of these; 2° In other cases, on the date of the last general meeting having approved the operation except where the
agreement specifies that the operation shall take effect on another date, which must not be after the end date of the current financial year of the receiving company or companies nor before the end date of the last closed financial year of the company or companies transferring their assets.
Article L236-5 As an exception to the provisions of the second paragraph of Article L.236-2, if the planned operation has the effect
of increasing the commitments of members or shareholders in one or more companies in question, it may be decided only unanimously by these members or shareholders.
Article L236-6 All the companies participating in one of the operations indicated in Article L.236-1 shall prepare a merger or
division plan. This plan shall be filed with the registry of the Tribunal de commerce in whose jurisdiction the registered offices of
these companies are situated and shall be published in accordance with the terms fixed by a Conseil d'Etat decree. In order for the operation to be valid, the companies participating in one of the operations indicated in the first and
second paragraphs of Article L.236-1 shall be required to file with the registry a declaration in which they shall record all the acts carried out in order to proceed with this operation and by which they shall confirm that the operation has been carried out in accordance with the acts and regulations. The clerk, under his responsibility, shall ensure the conformity
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COMMERCIAL CODE of the declaration with the provisions of this article.
Article L236-7 The provisions of this chapter on bondholders shall apply to holders of participating securities.
SECTION II Provisions specific to public limited companies Articles L236-8 to
L236-22
Article L236-8 The operations referred to in Article L.236-1 and carried out solely between public limited companies shall be
subject to the provisions of this section.
Article L236-9 Mergers shall be decided by the special shareholders’ meeting of each of the companies participating in the
operation. Mergers shall be subject, if applicable, in each of the companies participating in the operation, to ratification by the
special shareholders’ meetings indicated in Articles L.225-99 and L.228-15. The merger plan shall be submitted to the special meetings of holders of investment certificates ruling according to
the rules of the general meeting of shareholders, unless the acquiring company purchases these securities, at the request of these holders, in accordance with the publication conditions whose terms shall be fixed by a Conseil d'Etat decree and unless this purchase has been accepted by their special meeting. Any holders of investment certificates who have not assigned their securities within the period fixed by a Conseil d'Etat decree shall remain a holder in the acquiring company in accordance with the conditions fixed by the merger agreement, subject to the provisions of the last paragraph of Article L.228-30.
The board of directors or management of each of the companies participating in the operation shall prepare a written report which shall be provided to the shareholders.
Article L236-10 I.- One or more auditors of the merger, appointed by a court decision, shall prepare under their responsibility a
written report on the terms of the merger. They may obtain all relevant documents from each company and shall make all the necessary checks. They shall be subject, with regard to the participating companies, to the incompatibilities specified in Article L.225-224.
II.- The auditors of the merger shall check that the relative values assigned to the shares of the companies participating in the operation are relevant and that the exchange ratio is fair.
III.- The report or reports of the auditors of the merger shall be provided to the shareholders. They must: 1° Indicate the method or methods followed for determining the exchange ratio proposed; 2° Indicate whether this or these methods are appropriate in the case in question and indicate the values to which
each of these methods leads. An opinion shall be given on the relative importance given to these methods in determining the value used;
3° Indicate in addition the particular valuation difficulties, if any. IV.- In addition, the auditors of the merger shall assess, under their responsibility, the value of the contributions in
kind and the special advantages and shall prepare, for this purpose, the report specified in Article L.225.147.
Article L236-11 When, following the filing with the registry of the Tribunal de commerce of the merger plan and until the operation is
carried out, the acquiring company permanently holds all the shares representing the whole capital of the acquired companies, the merger shall not have to be approved by the special shareholders’ meeting of the acquired companies and the reports indicated in the last paragraph of Article L.236-9 and in Article L.236-10 shall not have to be prepared. The special shareholders’ meeting of the acquiring company shall rule, with regard to the report of an auditor on the contributions, in accordance with the provisions of Article L.225-147.
Article L236-12 When the merger is carried out by creating a new company, this may be formed without any contributions other than
those from the companies which are merging. In all cases, the draft articles of association of the new company shall be approved by the special shareholders’
meeting of each of the disappearing companies. The operation shall not have to be approved by the general meeting of the new company.
Article L236-13 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The merger plan is submitted to the bondholders' meetings of the companies taken over, unless the said bondholders are offered on-demand redemption of their securities. The offer of redemption is subject to publication, the arrangements for which are determined in a Conseil d'Etat decree.
When on-demand redemption is offered, the acquiring company becomes the debtor in respect of the acquired company's bondholders.
Any bondholder who has requested redemption within the time limit set in a Conseil d'Etat decree shall retain his status in the acquiring company under the terms set out in the merger agreement.
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COMMERCIAL CODE Article L236-14
The acquiring company shall be indebted to the non-bondholder creditors of the acquired company in place of the latter, without this replacement leading to novation in their respect.
The non-bondholder creditors of the companies participating in the merger operation and whose claim is prior to the publication of the merger plan may object to this within the period fixed by a Conseil d'Etat decree. A court decision shall reject the objection or order either the repayment of the claims or the formation of guarantees if the acquiring company offers this and if these are deemed sufficient.
Failing repayment of the claims or formation of the guarantees ordered, the merger shall not be binding on this creditor.
The objection made by a creditor shall not have the effect of preventing the merger operations from continuing. The provisions of this article shall not prevent the application of the agreements authorising the creditor to demand
the immediate repayment of their claim in the event of the merger of the debtor company with another company.
Article L236-15 (Order No. 2004-604 of 24 June 2004 Art. 51 XVII Official Journal of 26 June 2004)
A merger plan is not submitted to the acquiring company's bondholders' meetings. However, the general meeting of bondholders may empower the body's representatives to raise an objection to the merger in the circumstances and with the effects indicated in the second paragraph et seq of Article L. 236-14.
Article L236-16 Articles L.236-9 and L.236-10 shall apply to divisions.
Article L236-17 When the division must be carried out by making contributions to new public limited companies, each of the new
companies may be formed without any contribution other than that from the divided company. In this case, and if the shares of each of the new companies are allotted to the shareholders of the divided company
in proportion to their rights to the capital of this company, the report indicated in Article L.236-10 shall not have to be prepared.
In all cases, the draft articles of association of the new companies shall be approved by the special shareholders’ meeting of the divided company. The operation shall not have to be approved by the general meeting of each of the new companies.
Article L236-18 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The demerger plan is submitted to the demerged company's bondholders' meetings pursuant to the provisions of 3 of Article L. 228-65, unless the bondholders are offered on-demand redemption of their bonds. The offer of redemption is subject to publication, the arrangements for which are determined in a Conseil d'Etat decree.
When on-demand redemption is offered, the companies benefiting from the contributions become the jointly and severally liable debtors of the bondholders who request redemption.
Article L236-19 The division plan shall not be submitted to the meetings of bondholders of the companies to which the assets are
transferred. However, the routine meeting of bondholders may authorise the representatives of the body to object to the division, in accordance with the conditions and with the effects specified in the second and subsequent paragraphs of Article L.236-14.
Article L236-20 The companies receiving the contributions resulting from the division shall become jointly indebted to the
bondholders and the non-bondholder creditors of the divided company in place of the latter, without this replacement leading to novation in their respect.
Article L236-21 As an exception to the provisions of Article L.236-20, it may be stipulated that the receiving companies as a result of
the division shall be bound only with regard to the part of the liabilities of the divided company subject to the respective charge and without any joint and several liability between them.
In this case, the non-bondholder creditors of the participating companies may object to the division in accordance with the conditions and with the effects specified in the second and subsequent paragraphs of Article L.236-14.
Article L236-22 The company contributing part of its assets to another company and the company receiving this contribution may
decide, by mutual agreement, to submit the operation to the provisions of Articles L.236-16 to L.236-21.
SECTION III Provisions specific to limited liability companies Articles L236-23 to
L236-24
Article L236-23 The provisions of Articles L.236-10, L.236-11, L.236-14, L.236-20 and L.236-21 shall apply to mergers or divisions
of limited liability companies to the benefit of companies of the same form.
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COMMERCIAL CODE When mergers are carried out by making contributions to a new limited liability company, this may be formed
without any contributions other than those from the merging companies. When divisions are carried out by making contributions to new limited liability companies, these may be formed
without any contribution other than that of the divided company. In this case, and if the shares in each of the new companies are allotted to the members of the divided company in proportion to their rights to the capital of this company, the report indicated in Article L.236-10 shall not have to be prepared.
In the cases specified in the above two paragraphs, the members of the disappearing companies may act ipso jure in the capacity of founders of the new companies and in accordance with the provisions governing limited liability companies.
Article L236-24 The company contributing part of its assets to another company and the company receiving this contribution may
decide, by mutual agreement, to submit the operation to the provisions applicable in the event of division by making contributions to existing limited liability companies.
CHAPTER VII Winding-up Articles L237-1 to
L237-30
SECTION I General provisions Articles L237-1 to
L237-13
Article L237-1 Subject to the provisions of this chapter, the winding-up of companies shall be governed by the provisions contained
in their articles of association.
Article L237-2 The company shall start being wound up from the moment of its dissolution for any reason whatsoever, except in
the case specified in the third paragraph of Article 1844-5 of the Civil Code. Its business name shall be followed by the words “société en liquidation” (company being wound up).
The legal personality of the company shall continue, for the purposes of the winding-up, until the company is closed. The dissolution of a company shall produce its effects with regard to third parties only from the date when this is
published in the commercial and companies register.
Article L237-3 The instrument appointing the liquidator shall be published by the latter, in accordance with the conditions and
within the periods fixed by a Conseil d'Etat decree which shall also determine the documents to be filed in the annex to the commercial and companies register.
Article L237-4 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
Persons who have been prohibited from acting as a managing director, director, general manager, member of the executive board or member of the supervisory board of a company, or who have been deprived of the right to perform such functions cannot be appointed as liquidators.
Article L237-5 The dissolution of the company shall not lead ipso jure to the termination of the leases for the buildings used for its
company activity, including the dwelling places attached to these buildings. If the lease is assigned and the guarantee obligation can no longer be ensured under the terms of this lease, any
guarantee offered by the transferee or a third party, which is deemed sufficient, may replace this by a court decision.
Article L237-6 Without the unanimous consent of the members, the assignment of all or part of the assets of the company being
wound up to a person having had, in this company, the capacity of general or limited partner, manager, director, managing director, member of the supervisory board, member of the management, auditor or comptroller may not occur without the authorisation of the Tribunal de commerce, with the liquidator and, if any, the auditor or comptroller having been duly heard.
Article L237-7 The assignment of all or part of the assets of the company being wound up to the liquidator or its employees or their
spouses, ancestors or descendants shall be prohibited.
Article L237-8 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
A total transfer of the company's assets or the contribution of the assets to another company, by way of a merger, is authorised:
1. In general partnerships, with the unanimous approval of the partners; 2. In limited partnerships, with the unanimous approval of the financing partners and with the majority approval of
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COMMERCIAL CODE the sleeping partners in terms of both number and capital;
3. In public limited companies, with the majority required to amend the memorandum and articles of association; 4. In joint-stock companies, on the basis of the quorum and majority conditions laid down for extraordinary general
meetings, and, likewise, in public limited partnerships, with the unanimous approval of the financing partners.
Article L237-9 The members, including the holders of non-voting preferred stock, shall be convened at the end of the winding-up in
order to rule on the final accounts, the discharge of the liquidator’s management and the release of the latter from his mandate and to record the end of the winding-up.
Failing this, any member may bring legal proceedings to appoint a representative entrusted with convening this meeting.
Article L237-10 If the meeting specified in Article L.237-9 cannot deliberate or refuses to approve the liquidator’s accounts, these
shall be ruled on, by a court decision, at the request of the liquidator or any interested party.
Article L237-11 The end of winding-up notice shall be published according to the terms fixed by a Conseil d'Etat decree.
Article L237-12 The liquidator shall be responsible, with regard to both the company and third parties, for the harmful consequences
of the errors committed thereby in fulfilling his duties. The action for damages against the liquidators shall be prescribed in accordance with the conditions specified in
Article L.225-254.
Article L237-13 All actions against the members not in favour of the winding-up or their surviving spouses, heirs or successors shall
be prescribed after five years from the publication of the company’s dissolution in the commercial and companies register.
SECTION II Provisions applicable following a court decision Articles L237-14 to
L237-30
Article L237-14 (Act No 2001-420 of 15 May 2001, Article 114(2), Official Gazette of 16 May 2001)
I.- Unless otherwise specified in the articles of association or expressly agreed between the parties, the dissolved company shall be wound up in accordance with the provisions of this section, without prejudice to the application of the first section of this chapter.
II.- In addition, it may be ordered by a court decision that this winding-up shall be carried out in accordance with the same conditions at the request of:
1° The majority of the partners, in general partnerships; 2° Partners or members representing at least 5% of the capital in limited partnerships, limited liability companies
and joint-stock companies; 3° Creditors of the company. III.- In this case, the provisions of the articles of association which are contrary to those of this chapter shall be
deemed to be unwritten.
Article L237-15 The powers of the board of directors, management or managers shall end on the date of the court decision adopted
pursuant to Article L.237-14 or the dissolution of the company if this is later.
Article L237-16 The dissolution of the company shall not end the duties of the supervisory board and auditors.
Article L237-17 In the absence of auditors, and even in companies which are not required to appoint these, one or more
comptrollers may be appointed by the members in accordance with the conditions specified in I of Article L.237-27. Failing this, they may be appointed, by a court decision, at the request of the liquidator or any interested party.
The instrument appointing the comptrollers shall fix their powers, obligations and remuneration and also the term of their duties. They shall be subject to the same liability as the auditors.
Article L237-18 I.- One or more liquidators shall be appointed by the members if the dissolution results from the company’s term
being reached according to the articles of association or if this is decided by the members. II.- The liquidator shall be appointed: 1° In general partnerships, unanimously by the partners; 2° In limited partnerships, unanimously by the managing partners and by the majority in capital of the limited
partners; 3° In limited liability companies, by the majority in capital of the members;
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COMMERCIAL CODE 4° In public limited companies, in accordance with the quorum and majority conditions specified for routine
shareholders’ meetings; 5° In partnerships limited by shares, in accordance with the quorum and majority conditions specified for routine
shareholders’ meetings, with this majority having to include all the managing partners; 6° In simplified joint-stock companies, unanimously by the members, unless otherwise specified.
Article L237-19 If the members could not appoint a liquidator, the latter shall be appointed by a court decision at the request of any
interested party, in accordance with the conditions determined by a Conseil d'Etat decree.
Article L237-20 If the dissolution of the company is ordered by a court decision, this decision shall appoint one or more liquidators.
Article L237-21 The duration of the liquidator’s mandate may not exceed three years. However, this mandate may be renewed by
the members or the president of the Tribunal de commerce, according to whether the liquidator was appointed by the members or by a court decision.
If the meeting of members cannot be validly held, the mandate shall be renewed by a court decision, at the request of the liquidator.
When requesting the renewal of his mandate, the liquidator shall indicate the reasons why the winding-up could not be ended, the measures he plans to take and the periods required to complete the winding-up.
Article L237-22 Liquidators shall be dismissed and replaced according to the forms specified for their appointment.
Article L237-23 Within six months of their appointment, liquidators shall convene the meeting of members to which they shall report
on the situation of the company’s assets and liabilities, the progress of the winding-up operations and the period needed to complete these. The period within which the liquidators shall make their reports may be increased to twelve months, at their request, by a court decision.
Failing this, the meeting shall be convened either by the controlling body, if any, or by a representative appointed, by a court decision, at the request of any interested party.
If the meeting cannot be held or if no decision can be taken, the liquidator shall bring legal proceedings in order to obtain the authorisations needed to end the winding-up.
Article L237-24 Liquidators shall represent the company. They shall be invested with the widest powers in order to sell the assets,
even by private agreement. The restrictions on these powers, resulting from the articles of association or the appointment instrument, shall not be binding on third parties.
Liquidators shall be authorised to pay the creditors and distribute the available balance. They may continue current business or take on new business for the purposes of the winding-up only if this has
been authorised either by the members or by a court decision if they were appointed by the same means.
Article L237-25 Within three months of the end of each financial year, liquidators shall prepare the annual accounts, with regard to
the inventory which they have made of the various elements of the assets and liabilities existing on this date, and a written report in which they shall record the winding-up operations during the last financial year.
Unless an exemption is granted by a court decision, liquidators shall convene, according to the terms specified by the articles of association, at least once a year and within six months of the end of the financial year, the meeting of members which shall rule on the annual accounts, give the necessary authorisations and possibly renew the mandate of the comptrollers, auditors or members of the supervisory board.
If the meeting has not been held, the report specified in the first paragraph above shall be filed with the registry of the Tribunal de commerce and notified to any interested party.
Article L237-26 During the winding-up period, the members may obtain company documents in accordance with the same
conditions as before.
Article L237-27 I.- The decisions specified in the second paragraph of Article L.237-25 shall be taken: 1° By the majority of partners or members in capital in general partnerships, limited partnerships and limited liability
companies; 2° In accordance with the quorum and majority conditions of routine meetings in joint-stock companies; 3° Unless otherwise specified, unanimously by the members in simplified joint-stock companies. II.- If the required majority cannot be achieved, these decisions shall be ruled on, by a court decision, at the request
of the liquidator or any interested party. III.- When the deliberations lead to amendments to the articles of association, these shall occur in accordance with
the conditions specified for this purpose for each form of company. IV.- The members in favour of the winding-up may take part in the vote.
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COMMERCIAL CODE Article L237-28
If the company continues to be operated, the liquidator shall be required to convene the meeting of members, in accordance with the conditions specified in Article L.237-25. Failing this, any interested party may request the convening of the meeting either by the auditors, supervisory board or controlling body or by a representative appointed by a court decision.
Article L237-29 Unless otherwise specified in the articles of association, equity capital remaining after the redemption of the face
value of the company’s shares shall be shared between the members in the same proportions to their participation in the share capital.
Article L237-31 Subject to the rights of creditors, the liquidator shall decide whether the funds which have become available during
the winding-up should be distributed. After sending formal notice to the liquidator without receiving any response, any interested party may bring legal
proceedings to obtain a ruling on the appropriateness of a distribution during the winding-up. The decision to distribute the funds shall be published according to the terms fixed by a Conseil d'Etat decree.
Article L237-30 Non-voting preferred stock shall be redeemed before ordinary shares. The same shall apply for preference dividends which have not been fully paid. Non-voting preferred stock shall, in proportion to their face value, have the same rights as the other shares to the
winding-up profit. Any clause contrary to the provisions of this article shall be deemed to be unwritten.
CHAPTER VIII Orders to perform Articles L238-1 to
L238-3-1
Article L238-1 (Act No. 2001-420 of 15 May 2001 Art. 122 1 Official Journal of 16 May 2001) (Order No. 2004-274 of 25 March 2004 Art. 21 II Official Journal of 27 March 2004) (Order No. 2004-604 of 24 June 2004 Art. 51 XVIII Official Journal of 26 June 2004)
When interested parties cannot obtain production, discovery or transmission of the documents referred to in Articles L. 221-7, L. 223-26, L. 225-115, L. 225-116, L. 225-117, L. 225-118, L. 225-129, L. 225-129-5, L. 225-129-6, L. 225-135, L. 225-136, L. 225-138, L. 225-177, L. 225-184, L. 228-69, L. 237-3 and L. 237-26, they may ask the presiding judge, ruling on a summary basis, to either order the liquidator or the directors, executives and executives to produce them, under pain of a coercive fine, or to designate a representative responsible for producing them.
The same action is available to any interested party unable to obtain from the liquidator, the directors, the management or the executives a form of proxy compliant with the directives of a Conseil d'Etat decree or the information pertaining to the holding of meetings stipulated in the said decree.
If the request is upheld, the coercive fine and the procedural costs are borne by the directors, managers, executives or liquidator in question.
Article L238-2 (inserted by Law No. 2003-706 of 1 August 2003 Article 134 (V) Official Gazette of 2 August 2003)
Any interested party may ask the presiding judge, ruling on a summary basis, to direct the liquidator, under pain of a coercive fine, to meet the obligations referred to in Articles L. 237-21 and L. 237-25.
Article L238-3 (Act No. 2003-721 of 1 August 2003 Art. 9 3 Official Journal of 5 August 2003) (Act No. 2005-842 of 26 July 2005 Art. 11 II Official Journal of 27 July 2005)
The public prosecutor and any interested party may ask the presiding judge, ruling on a summary basis, to order the legal representative of a limited liability company, a public limited company, a simplified joint-stock company, a European company or a partnership limited by shares, under pain of a coercive fine, to show on all deeds and other documents emanating from the company the registered company name, immediately preceded or followed by the words "limited liability company" or the initials "SARL", "public limited company" or the initials "SA", "simplified joint-stock company" or the initials "SAS", "European company" or the initials "SE", or "partnership limited by shares", legibly written, and the authorised capital.
Article L238-4 (inserted by Order No. 2004-274 of 25 March 2004 Art. 20 III Official Journal of 27 March 2004)
Any interested party may ask the presiding judge, ruling on a summary basis, to order the chairman of the management and administration structures, under pain of a coercive fine, to transcribe the minutes of the said meetings in a special register kept at the registered office.
Article L238-5 (inserted by Order No. 2004-274 of 25 March 2004 Art. 22 III Official Journal of 27 March 2004)
Any interested party may ask the presiding judge, ruling on a summary basis, to order the chairman of the general
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COMMERCIAL CODE meeting of shareholders or bondholders, under pain of a coercive fine, to transcribe the minutes of the said meetings in a special register kept at the registered office.
Article L238-6 (inserted by Order No. 2004-604 of 24 June 2004 Art. 50 I Official Journal of 26 June 2004)
If the special meeting of preferred dividend shareholders is not consulted as provided for in Articles L. 228-35-6, L. 228-35-7 and L. 228-35-10, the presiding judge, ruling on a summary basis, may, at the request of any shareholder, order the management or the chairman of the board of directors or the executive board, under pain of a coercive fine, to convene such a meeting or designate a representative responsible for convening such a meeting.
The same action is available to any shareholder or any holder of transferable securities giving access to the capital when the general meeting or special meeting to which he belongs is not consulted as provided for in Article L. 225-99, the second paragraph of Article L. 225-129-6 and Article L. 228-16 or L. 228-103.
Article L238-3-1 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 II Official Journal of 27 July 2005)
Any interested party may ask the presiding judge, ruling on a summary basis, to order companies using the acronym "SE" in their registered company name in violation of the provisions of Article 11 of (EC) Council Regulation No. 2157/2001 of 8 October 2001, relating to the status of a European company (SE), to amend that registered company name, under pain of a coercive fine.
TITLE IV Penal provisions Articles L241-1 to
L248-1
CHAPTER I Offences involving limited liability companies Articles L241-1 to
L241-9
Article L241-1 (Order No. 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-721 of 1 August 2003 Article 9 (1) Official Gazette of 5 August 2003)
The omission from the memorandum and articles of association of a public limited company of the declaration relating to the distribution of the capital shares among all the partners, the paid-up status of the shares or the depositing of the funds carries a penalty of two years' imprisonment and a fine of 9,000 euros.
The provisions of the present Article are applicable in the event of the capital being increased.
Article L241-2 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Order No. 2004-274 of 25 March 2004 Art. 19 Official Journal of 27 March 2004)
The fact of managers issuing transferable securities of any kind, directly or through an intermediary, on behalf of the company, with the exception of bonds issued as determined by Article L. 223-11, shall be punished by a fine of 9,000 euros.
Article L241-3 The following shall be punished by a prison sentence of five years and a fine of 375,000 euros: 1° If any person fraudulently assigns to a contribution in kind a valuation higher than its real value; 2° If managers distribute sham dividends between the members in the absence of an inventory or using fraudulent
inventories; 3° If managers present to the members, even in the absence of any distribution of dividends, annual accounts not
providing, for each financial year, a fair representation of the results of the operations for the financial year, financial situation and assets on the expiration of this period, in order to hide the company’s true situation;
4° If managers use the company’s property or credit, in bad faith, in a way which they know is contrary to the interests of the company, for personal purposes or to encourage another company or undertaking in which they are directly or indirectly involved;
5° If managers use the powers which they possess or the votes which they have in this capacity, in bad faith, in a way which they know is contrary to the interests of the company, for personal purposes or to encourage another company or undertaking in which they are directly or indirectly involved.
Article L241-4 (Act No 2001-420 of 15 May 2001, Article 122(2), Official Gazette of 16 May 2001)
The following shall be punished by a fine of 9,000 euros: 1° If managers do not, for each financial year, prepare the inventory, annual accounts and an annual report; 2° and 3° (deleted).
Article L241-5 If managers do not hold the meeting of members within six months of the end of the financial year or, in the event of
an extension, within the period fixed by a court decision or do not submit for approval by said meeting or the sole proprietor the documents specified in 1° of Article L.241-4, this shall be punished by a prison sentence of six months and
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COMMERCIAL CODE a fine of 9,000 euros.
Article L241-6 If managers, when the equity capital of the company, due to losses identified in the accounting documents,
becomes less than half the share capital: 1° Do not, in the four months following approval of the accounts having revealed these losses, consult the members
in order to decide whether the company should be dissolved early; 2° Do not file with the Tribunal de commerce registry, enter in the commercial and companies register and publish in
a legal notices newspaper the decision adopted by the members, this shall be punished by a prison sentence of six months and a fine of 4,500 euros.
Article L241-9 (Law No 2003-721 of 1 August 2003 Article 9 (5) Official Gazette of 5 August 2003)
The provisions of Articles L. 241-2 to L. 241-6 are applicable to any person who, either directly or indirectly, has in reality managed a public limited company on behalf of, or in the place of, its legal manager.
CHAPTER II Offences involving public limited companies Articles L242-1 to
L242-31
SECTION I Offences relating to formation Articles L242-1 to
L242-5
Article L242-1 If the founders, chairman, directors or managing directors of a public limited company issue shares or subdivided
shares either before the registration of said company in the commercial and companies register or at any time if the registration has been obtained fraudulently or also when the formalities for the formation of this company have not been duly fulfilled, this shall be punished by a fine of 9,000 euros.
A prison sentence of one year may also be ordered if the shares or subdivided shares are issued without the shares paid in cash having been paid up, on their subscription, by at least one-quarter or without the initial shares having been fully paid up prior to the registration of the company in the commercial and companies register.
If the persons referred to in the first paragraph do not maintain the shares paid in cash in the registered form until they are fully paid up, this shall be punished by the penalties specified in the above paragraph.
The penalties specified in this article may be doubled when this involves public limited companies making a public offering.
Article L242-2 (Act No 2001-420 of 15 May 2001, Article 122(2), Official Gazette of 16 May 2001)
The following shall be punished by a prison sentence of five years and a fine of 9,000 euros: 1°, 2° and 3° (deleted); 4° If any person fraudulently assigns to a contribution in kind a valuation higher than its real value.
Article L242-3 (Act No 2001-420 of 15 May 2001, Article 122(2), Official Gazette of 16 May 2001)
If the founders, chairman of the board of directors, directors or managing directors of a public limited company, and the holders of shares, trade:
1° Shares paid in cash which did not remain in the registered form until they were fully paid up; 2° Shares paid in cash for which the payment of one-quarter has not been made; 3° (deleted), this shall be punished by a prison sentence of one year and a fine of 9,000 euros.
Article L242-4 (Order No. 2004-604 of 24 June 2004 Art. 50 II Official Journal of 26 June 2004)
The penalties imposed by Article L. 242-3 also apply to whoever has established or published the value of the shares or promises of shares referred to in the said article.
Article L242-5 The acceptance or continuation of the duties of an auditor of contributions, notwithstanding the legal prohibitions
and incompatibilities, shall be punished by a prison sentence of six months and a fine of 9,000 euros.
SECTION II Offences relating to management and administration Articles L242-6 to
L242-8
Article L242-6 The following shall be punished by a prison sentence of five years and a fine of 375,000 euros: 1° If the chairman, directors or managing directors of a public limited company distribute sham dividends between
the shareholders in the absence of an inventory or using fraudulent inventories;
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COMMERCIAL CODE 2° If the chairman, directors or managing directors of a public limited company publish or present to the
shareholders, even in the absence of any distribution of dividends, annual accounts not providing, for each financial year, a fair representation of the results of the operations for the financial year, financial situation and assets on the expiration of this period, in order to hide the company’s true situation;
3° If the chairman, directors or managing directors of a public limited company use the company’s property or credit, in bad faith, in a way which they know is contrary to the interests of the company, for personal purposes or to encourage another company or undertaking in which they are directly or indirectly involved;
4° If the chairman, directors or managing directors of a public limited company use the powers which they possess or the votes which they have in this capacity, in bad faith, in a way which they know is contrary to the interests of the company, for personal purposes or to encourage another company or undertaking in which they are directly or indirectly involved.
Article L242-8 If the chairman, directors or managing directors of a public limited company do not, for each financial year, prepare
the inventory, annual accounts and an annual report, this shall be punished by a fine of 9,000 euros.
SECTION III Offences relating to shareholders’ meetings Articles L242-9 to
L242-16
Article L242-9 (Order No. 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003) (Law No 2003-706 of 1 August 2003 Article 134 (I) Official Gazette of 2 August 2003)
The following offences carry a penalty of two years' imprisonment and a fine of 9,000 euros: 1. The fact of preventing a shareholder from participating in a shareholders' meeting; 2. Subparagraph cancelled; 3. The fact of securing agreement, a guarantee or a promise of advantages for voting in a certain way or for not
voting, and also the acts of agreeing, guaranteeing or promising such advantages.
Article L242-10 If the chairman or directors of a public limited company do not hold the routine shareholders’ meeting within six
months of the end of the financial year or, in the event of an extension, within the period fixed by a court decision or do not submit for approval by said meeting the annual accounts and annual report specified in Article L.232-1, this shall be punished by a prison sentence of six months and a fine of 9,000 euros.
Article L242-15 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Act No. 2003-706 of 1 August 2003 Art. 134 I Official Journal of 2 August 2003) (Order No. 2004-274 of 25 March 2004 Art. 22 I Official Journal of 27 March 2004)
The fact of the chairman or the directors of a public limited company committing the following offences shall incur a fine of 3,750 euros:
1. Paragraph abrogated. 2. Failure to append to the attendance sheet the proxies given to each representative; 3. Failure to record the decisions of any meeting of shareholders in minutes signed by the members of the
committee which indicate the date and venue of the meeting, the means used to convene it, the agenda, the composition of the committee, the number of shares represented in the voting and the quorum achieved, the documents and reports submitted to the meeting, a summary of the proceedings, the text of the resolutions put to the vote and the results of the voting.
Article L242-16 If the chairman of the meeting and the members of the meeting’s committee do not comply, during shareholders’
meetings, with the provisions governing the voting rights attached to shares, this shall be punished by the penalties specified in Article L.242-15.
SECTION IV Offences relating to changes in the share capital Articles L242-17 to
L242-24
Subsection 1 Increase in capital Articles L242-17 to
L242-21
Article L242-17 I.- If the chairman, directors or managing directors of a public limited company issue, during an increase in capital,
shares or subdivided shares: 1° Either before the depositary’s certificate has been prepared or the guarantee agreement specified in Article
L.225-145 has been signed;
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COMMERCIAL CODE 2° Or also when the formalities prior to the increase in capital have not been duly fulfilled, this shall be punished by a fine of 9,000 euros. II.- A prison sentence of one year may also be ordered if the shares or subdivided shares are issued without the
previously subscribed capital of the company having been fully paid up or without the new initial shares having been fully paid up prior to the amending entry in the commercial and companies register or also without the new shares paid in cash having been paid up, on their subscription, by at least one-quarter of their face value and, if applicable, the whole of the premium.
III.- If the same persons do not maintain the shares paid in cash in the registered form until they are fully paid up, this shall be punished by the fines and prison sentences specified in I and III.
IV.- The penalties specified in this article may be doubled when this involves public limited companies making a public offering.
V.- The provisions of this article shall not apply to shares which have been duly issued by converting bonds convertible at any time or by using subscription warrants nor to shares issued in accordance with the conditions specified in Articles L.232-18 to L.232-20.
Article L242-20 If the chairman, directors or auditors of a public limited company give or confirm incorrect information in the reports
presented to the general meeting called to decide on the withdrawal of the preferential subscription right of shareholders, this shall be punished by a prison sentence of two years and a fine of 18,000 euros.
Article L242-21 The provisions of Articles L.242-2 to L.242-5 on the formation of public limited companies shall apply in the event of
an increase in capital.
Subsection 2 Reduction of capital Articles L242-23 to
L242-24
Article L242-23 If the chairman or directors of a public limited company reduce the share capital: 1° Without respecting the equality of shareholders; 2° Without ensuring the publication of the capital reduction decision in the commercial and companies register and
in a newspaper authorised to receive legal notices, this shall be punished by a fine of 9,000 euros.
Article L242-24 If the chairman, directors or managing directors of a public limited company subscribe, purchase, use as security,
keep or sell, in the name of the company, shares issued by the latter in breach of the provisions of Articles L.225-206 to L.225-215, this shall be punished by the penalty specified in Article L.242-23.
If the chairman, directors or managing directors use shares bought by the company, pursuant to Article L.225-208, for purposes other than those specified in said article, this shall be punished by the same penalty.
If the chairman, directors or managing directors of a public limited company carry out, in the name of the company, the operations prohibited by the first paragraph of Article L.225-216, this shall be punished by the same penalty.
SECTION VI Offences relating to dissolution Article L242-29
Article L242-29 (Order No. 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-706 of 1 August 2003 Article 134 (I) Official Gazette of 2 August 2003)
A fine of 3,750 euros is imposed on the chairman or the directors of a public limited company if they fail to: 1. Subparagraph cancelled; 2. Append to the attendance sheet details of the powers given to each representative; 3. Consign the decisions of any meeting of shareholders in minutes signed by the members of the panel which are
kept in a special book at the registered office and which indicate the time and place of the meeting, the manner in which it was convened, the agenda, the composition of the panel, the number of shares in respect of which votes were cast and the quorum achieved, the documents and reports submitted to the meeting, a summary of the proceedings, the texts of the resolutions put to the vote and the results of the voting.
SECTION VII Offences relating to public limited companies with a management and a
supervisory board Article L242-30
Article L242-30 (Law No 2003-721 of 1 August 2003 Article 9 (6) Official Gazette of 5 August 2003)
The penalties provided for in Articles L. 242-6 to L. 242-29 for the chairmen, general managers and directors of limited companies are applicable, in keeping with their respective remits, to members of the executive board and members of the supervisory board of the limited companies governed by the provisions of Articles L. 255-57 to L.
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COMMERCIAL CODE 225-93.
The provisions of Article L. 246-2 are also applicable to limited companies governed by Articles L. 255-57 to L. 225-93.
SECTION VIII Offences relating to public limited companies with worker participation Article L242-31
Article L242-31 If the chairman, directors or managing directors of a public limited company with worker participation, using the
option to issue employee’s shares, do not mention this circumstance by the addition of the words “à participation ouvrière” (with worker participation) to all instruments or documents originating from the company and intended for third parties, this shall be punished by a fine of 3,750 euros.
CHAPTER III Offences involving partnerships limited by shares Article L243-1
Article L243-1 Articles L.242-1 to L.242-29 shall apply to partnerships limited by shares. The penalties specified with regard to the chairmen, directors or managing directors of public limited companies
shall apply, in respect of their powers, to the managers of partnerships limited by shares.
CHAPTER IV Offences involving simplified joint-stock companies Articles L244-1 to
L244-4
Article L244-1 Articles L.242-1 to L.242-6, L.242-8 and L.242-17 to L.242-29 shall apply to simplified joint-stock companies. The penalties specified with regard to the chairmen, directors or managing directors of public limited companies
shall apply to the chairmen and directors of simplified joint-stock companies. Articles L.242-20, L.242-26 and L.242-27 shall apply to the auditors of simplified joint-stock companies.
Article L244-2 (Law No 2001-420 of 15 May 2001 Article 128 Official Gazette of 16 May 2001) (Order No. 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-721 of 1 August 2003 Article 9 (4) Official Gazette of 5 August 2003)
Failure, on the part of an executive of a simplified joint-stock company, to consult the partners in the manner prescribed in the memorandum and articles of association in the event of an increase, write-off or reduction of capital, a merger, a demerger, a dissolution or a conversion to a different corporate status carries a penalty of six months' imprisonment and a fine of 7,500 euros.
Article L244-3 If the directors of a simplified joint-stock company make a public offering, this shall be punished by a fine of 18,000
euros.
Article L244-4 The provisions of Articles L.244-1, L.244-2 and L.244-3 shall apply to any person who, directly or through an
intermediary, has actually managed a simplified joint-stock company under the guise or in place of the chairman and directors of this company.
CHAPTER IV bis Offences relating to European companies Article L244-5
Article L244-5 (inserted by Act No. 2005-842 of 26 July 2005 Art. 11 I Official Journal of 27 July 2005)
Articles L242-1 to L242-30 apply to European companies. The penalties imposed on the chairman, the directors, the general managers, the executive board members or the
supervisory board members of limited companies are applicable to the chairman, directors, general managers, executive board members or supervisory board members of European companies.
Article L242-20 applies to the auditors of European companies.
CHAPTER V Offences relating to securities issued by joint-stock companies Articles L245-3 to
L245-17
SECTION I Offences relating to shares Articles L245-3 to
L245-5
Article L245-3 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002)
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COMMERCIAL CODE (Order No. 2004-604 of 24 June 2004 Art. 50 III Official Journal of 26 June 2004)
The chairman and the directors, the managers, and the members of the executive board and the supervisory board of a public limited company, and the executives of a partnership limited by shares, shall incur a term of six months' imprisonment and a fine of 6,000 euros in the following circumstances:
1. If the company writes off its capital when all of the non-voting preference shares have not been fully redeemed and cancelled;
2. If the company, in the event of a capital reduction not motivated by losses being carried out pursuant to the terms and conditions indicated in Article L. 225-207, does not redeem the non-voting preference shares before the ordinary shares in order to cancel them.
Article L245-4 If the chairman and directors, managing directors and members of the management and supervisory board of a
public limited company or the managers of a limited partnership that issues shares hold, directly or indirectly in accordance with the conditions specified in Article L.228-17, non-voting preferred stock in the company or partnership which they manage, this shall be punished by the penalties specified in Article L.245-3.
Article L245-5 If the liquidator of a company or partnership does not comply with the provisions of Article L.237-30, this shall be
punished by a prison sentence of six months and a fine of 6,000 euros.
SECTION III Offences relating to bonds Articles L245-9 to
L310-1
Article L245-9 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Order No. 2004-274 of 25 March 2004 Art. 23 Official Journal of 27 March 2004)
The fact of the chairman, the directors, the general managers or the executives of a joint-stock company issuing tradable bonds on behalf of that company which, within a single issue, do not confer the same creditor's rights for the same par value, shall incur a fine of 9,000 euros.
Article L245-10 If the chairman, directors, managing directors or managers of a joint-stock company issue, on behalf of this
company, premium bonds without authorisation, this shall be punished by a prison sentence of six months and a fine of 6,000 euros.
Article L245-11 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Order No. 2004-604 of 24 June 2004 Art. 50 IV Official Journal of 26 June 2004)
Whoever commits the following offences shall be punished by two years' imprisonment and a fine of 9,000 euros: 1. Preventing a bondholder from participating in a general meeting of bondholders; 2. Being given, guaranteed or promised special privileges for voting in a certain way or for not participating in the
vote, and likewise the fact of granting, guaranteeing or promising such special privileges.
Article L245-12 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Order No. 2004-604 of 24 June 2004 Art. 50 V Official Journal of 26 June 2004)
Commission of the following offences shall incur a fine of 6,000 euros: 1. On the part of the chairman, the directors, the general managers, the executives, the auditors, the members of
the supervisory board or the employees of the debtor company or of the company guaranteeing some or all of the debtor company's commitments, or of their ascendants, descendants or spouses: representing bondholders at their general meeting or agreeing to act as the representatives of the body of bondholders;
2. On the part of the chairman, the directors, the general managers or the executives of companies holding at least 10% of the capital of the debtor companies: taking part in the general meeting of bondholders by reason of the bonds held by those companies.
Article L245-13 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Order No. 2004-274 of 25 March 2004 Art. 22 II Official Journal of 27 March 2004)
The fact, on the part of the chairman of the general meeting of bondholders, of failing to record the decisions of any general meeting of bondholders in minutes which indicate the date and venue of the meeting, the means used to convene it, the agenda, the composition of the committee, the number of bondholders participating in the voting and the quorum achieved, the documents and reports submitted to the meeting, a summary of the proceedings, the text of the resolutions put to the vote and the results of the voting shall incur a fine of 4,500 euros.
Article L245-14 If: 1° The chairman, directors or managers of a joint-stock company offer or pay to representatives of the body of
bondholders a remuneration higher than that which has been allocated thereto by the meeting or by a court decision;
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COMMERCIAL CODE 2° Any representative of the body of bondholders accepts a remuneration higher than that which has been allocated
thereto by the meeting or by a court decision, without prejudice to the company being refunded the sum paid, this shall be punished by a fine of 18,000 euros.
Article L245-15 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Act No. 2003-706 of 1 August 2003 Art. 134 IX Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 50 VI Official Journal of 26 June 2004)
The offences referred to in Articles L. 245-9, and Articles L. 245-12 and L. 245-13 are punished by five years' imprisonment and a fine of 18,000 euros when they are committed fraudulently in order to deprive some or all of the bondholders of certain rights attached to their debt instrument.
Article L310-1 (Order No. 2004-274 of 25 March 2004 Art. 26, Art. 29 Official Journal of 27 March 2004)
Sales accompanied or preceded by advertising and presented as being intended, through price reductions, to achieve rapid disposal of some or all of the goods held by a commercial establishment following a decision, regardless of the reason therefor, to cease, seasonally suspend, or change its business activity, or to substantially alter its mode of exploitation, are deemed to be clearance sales.
Clearance sales must be declared in advance to the relevant administrative authority having jurisdiction over the location of the clearance sale. The declaration thus made shall state the reason for and duration of the clearance sale, which shall not exceed two months. It shall be accompanied by an inventory of the goods to be disposed of. If the event giving rise to the clearance sale has not taken place within six months, at the latest, of the declaration being made, the declarant is required to inform the relevant administrative authority thereof.
The offering for sale of goods other than those indicated in the inventory in respect of which the prior declaration was made is prohibited for the duration of the clearance sale.
SECTION IV Common provisions Articles L245-16 to
L245-17
Article L245-16 The provisions of this chapter referring to the chairmen, directors, managing directors and managers of joint-stock
companies shall apply to anyone who, directly or through an intermediary, has run, administered or managed these companies under the guise or in place of their legal agents.
Article L245-17 The penalties specified by Articles L.245-1 to L.245-15 in respect of the chairmen, managing directors and directors
of public limited companies shall apply, according to their respective powers, to the members of the management and to the members of the supervisory board of the public limited companies governed by the provisions of Articles L.225-57 to L.225-93.
The provisions of Article L.245-16 shall also apply to the public limited companies governed by Articles L.225-57 to L.225-93.
SECTION V Offences relating to public limited companies with a management and a
supervisory board
CHAPTER VI Offences common to various forms of joint-stock company Article L246-2
Article L246-2 (Act No. 2003-721 of 1 August 2003 Art. 9 7 Official Journal of 5 August 2003) (Act No. 2005-842 of 26 July 2005 Art. 11 II Official Journal of 27 July 2005)
The provisions of Articles L242-1 to L242-29, L243-1 and L244-5 applicable to the chairman, the directors or the general managers of limited companies or European companies and the managers of partnerships limited by shares are also applicable to any person who, directly or through an intermediary, has effectively managed, administered or run such a company through or on behalf of its legal representatives.
CHAPTER VII Offences common to various forms of commercial company Articles L247-1 to
L247-10
SECTION I Offences relating to subsidiaries, shares and controlled companies Articles L247-1 to
L247-3
Article L247-1 I.- If the chairman, directors, managing directors or managers of any company:
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COMMERCIAL CODE 1° Do not indicate, in the annual report presented to the members on the operations for the financial year, the
acquisition of a holding in a company whose registered office is in the territory of the French Republic, representing over one-twentieth, one-tenth, one-fifth, one-third, half or two-thirds of the capital or voting rights at the general meetings of this company, or the acquisition of control of such a company;
2° Do not, in the same report, record the activity and results of the whole company, the subsidiaries of the company and the companies which it controls by sector of activity;
3° Do not annex, to the company’s balance sheet, the table specified in Article L.233-15, including the information intended to reveal the situation of said subsidiaries and shares,
this shall be punished by a prison sentence of two years and a fine of 9,000 euros. II.- If the members of the management or board of directors or the managers of the companies referred to in Article
L.233-16, subject to the exceptions specified in Article L.233-17, do not prepare and present the consolidated financial statements to the shareholders or members, within the periods specified by law, this shall be punished by a fine of 9,000 euros. The court may also order the publication of the judgment, at the expense of the offender, in one or more newspapers.
III.- If the auditor does not indicate in his report the information referred to in 1° of I of this article, this shall be punished by the penalties indicated in I.
Article L247-2 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Act No. 2003-7 of 3 January 2003 Art. 50 II Official Journal of 4 January 2003) (Act No. 2003-706 of 1 August 2003 Art. 46 V Official Journal of 2 August 2003)
I. - A chairman, director, executive board member, executive or general manager of a legal entity, or any natural person, who fails to comply with the reporting obligations for which the company is responsible pursuant to Article L233-7 on account of the equity interests it holds, shall incur a fine of 18,000 euros.
II. - The same penalty shall apply to a chairman, director, executive board member, executive or general manager of a company who fails to give the notifications which that company is required to give pursuant to Article L233-12 on account of the equity interests it holds in the joint-stock company which controls it.
III. - The same penalty shall apply to a chairman, director, executive board member, executive or general manager of a company who, in the report presented to the shareholders on the business during the accounting period, fails to indicate the identity of persons who hold significant equity interests in the company or any changes during the accounting period, as well as the names of the controlled companies and the portion of the company's capital held by them, as determined in Article L233-13.
IV. - The fact of the auditor failing to include in his report the references referred to in III shall incur the same penalty.
V. - For companies which make public offerings, proceedings are instituted after the opinion of the Financial Markets Authority has been sought.
Article L247-3 If the chairmen, directors, members of the management, managing directors or managers of companies contravene
the provisions of Articles L.233-29 to L.233-31, this shall be punished by a fine of 18,000 euros. For companies making a public offering, proceedings for breach of the provisions of Article L.233-31 shall be
brought after the opinion of the Stock Exchange Committee has been requested.
SECTION II Offences relating to publication Article L247-4
Article L247-4 If any person does not fulfil the obligations resulting from Article L.225-109 within the period and according to the
terms fixed by a Conseil d'Etat decree, this shall be punished by a fine of 9,000 euros.
SECTION III Offences relating to winding-up Articles L247-5 to
L247-8
Article L247-5 If anyone contravenes the prohibition on fulfilling the duties of liquidator, this shall be punished by a prison sentence
of two years and fine of 9,000 euros. Anyone sentenced pursuant to the above paragraph may no longer be employed, in any respect, by the company in
which they fulfilled the prohibited duties. In the event of a breach of this prohibition, the sentenced person and their employer, if the latter knew of this, shall be punished by the penalties specified in said paragraph.
Article L247-6 If the liquidator of a company: 1° Does not publish, within one month of his appointment, in a legal notices newspaper in the department where the
registered office is situated, the instrument appointing the latter as liquidator and does not file with the commercial and companies register the decisions ordering the dissolution;
2° Does not convene the members, at the end of the winding-up, to rule on the final accounts, the discharge of his management and the release of the latter from his mandate, and to record the end of the winding-up, or does not, in the
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COMMERCIAL CODE case specified in Article L.237-10, file the accounts with the court registry or request the approval of these by the courts,
this shall be punished by a prison sentence of six months and a fine of 9,000 euros.
Article L247-7 (Law No 2001-420 of 15 May 2001 Article 122 (2) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 134 (I) Official Gazette of 2 August 2003)
The following omissions on the part of a liquidator called upon to liquidate a company pursuant to the provisions of Articles L. 237-14 to L. 237-31 give rise to application of the penalties provided for in Article L. 247-6:
1. Failure to submit a report, within six months of being appointed, on the assets and liabilities situation and the ongoing liquidation operations, and failure to apply for the authorisations required to complete them;
2. Failure to draw up annual accounts for inventorying purposes and likewise a written report giving details of the liquidation operations carried out in the previous financial year within three months of the close of each financial year;
3. (deleted); 4. and 5. Paragraphs cancelled; 6. Failure to deposit the sums allocated for distribution among the partners and the creditors in an account opened
with a lending institution in the name of the company in liquidation within fifteen days of the decision to effect a distribution, or failure to deposit with the Caisse des dépots et consignations any sums allocated to creditors or to partners which they have not claimed.
Article L247-8 If a liquidator, in bad faith: 1° Uses the property or credit of the company being wound up in a way which he knows is contrary to the interests
of this company, for personal purposes or to encourage another company or undertaking in which he is directly or indirectly involved;
2° Assigns all or part of the assets of the company being wound up contrary to the provisions of Articles L.237-6 and L.237-7,
this shall be punished by a prison sentence of five years and a fine of 9,000 euros.
SECTION IV Offences relating to public limited companies with a management and a
supervisory board Article L247-9
Article L247-9 The penalties specified by Articles L.247-1 to L.247-4 in respect of the chairmen, managing directors and directors
of public limited companies shall apply, according to their respective powers, to the members of the management and to the members of the supervisory board of the public limited companies governed by the provisions of Articles L.225-57 to L.225-93.
SECTION V Offences relating to companies with variable capital Article L247-10
Article L247-10 If the chairman, manager or, in general, the director of a company using the option specified in Article L.231-1 does
not mention this circumstance by adding the words “à capital variable “ (with variable capital) to all instruments and documents originating from the company and intended for third parties, this shall be punished by a fine of 3,750 euros.
CHAPTER VIII Provisions relating to the deputy managing directors of public limited companies Article L248-1
Article L248-1 (Act No. 2001-420 of 15 May 2001 Art. 107 5 Official Journal of 16 May 2001) (Act No. 2005-842 of 26 July 2005 Art. 11 II Official Journal of 27 July 2005)
The provisions of the present Part applicable to the general managers of limited companies or European companies are applicable, commensurate with their remits, to chief executive officers.
TITLE V Economic interest groupings Articles L251-1 to
L252-13
CHAPTER I Economic interest grouping governed by French law Articles L251-1 to
L251-23
Article L251-1 Two or more natural or legal persons may between them form an economic interest grouping for a fixed term. The aim of the grouping shall be to facilitate or develop the economic activity of its members and to improve or
increase the results of this activity. The aim is not to make profits for the grouping. The activity of the grouping must be linked to the economic activity of its members and may not be additional to this.
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COMMERCIAL CODE Article L251-2
Persons practising a profession subject to rules established by acts or regulations or whose title is protected may form an economic interest grouping or participate in this.
Article L251-3 The economic interest grouping may be formed without any capital. The rights of its members may not be represented by negotiable securities. Any clause to the contrary shall be
deemed to be unwritten.
Article L251-4 The economic interest grouping shall enjoy legal personality and full capacity from the date of its registration in the
commercial and companies register, without this registration leading to a presumption of commerciality of the grouping. The economic interest grouping whose aim is commercial may usually and principally carry out all commercial instruments on its own behalf. It may hold a commercial lease.
Persons who have acted in the name of an economic interest grouping being formed, before it has begun to enjoy legal personality, shall be bound, jointly, severally and indefinitely, by the acts thus carried out, unless the grouping, after having been duly formed and registered, assumes the commitments made. These commitments shall then be deemed to have been made from the start by the grouping.
Article L251-5 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The nullity of the economic interest group and of its actions and deliberations can only result from a violation of the imperative provisions of the present Chapter, or from one of the causes of nullity of contracts in general.
An action for voidance of contract lapses if the cause of nullity has ceased to exist on the day on which the court rules on the merits in the first instance, unless that nullity is founded on the unlawfulness of the group's object.
Articles 1844-12 to 1844-17 of the Civil Code are applicable to economic interest groups.
Article L251-6 Members of the grouping shall be liable for the debts of the latter in respect of their own assets. However, a new
member may, if the agreement allows this, be exonerated from the debts arising prior to their entry into the grouping. The exoneration decision must be published. Members shall be jointly and severally liable, unless otherwise agreed with the third party to the agreement.
Creditors of the grouping may bring proceedings against a member for the payment of debts only after having sent formal notice to the grouping by extra-judicial means without this producing any effect.
Article L251-7 The economic interest grouping may issue bonds, in accordance with the general conditions of issue of these
securities by companies, if it is itself composed exclusively of companies meeting the conditions specified by this book for the issue of bonds.
The economic interest grouping may also issue bonds, in accordance with the general conditions of issue of these securities specified by Act No 698 of 11 July 1985 authorising the issue of securities by certain associations, if it is itself composed exclusively of associations meeting the conditions specified by this Act for the issue of bonds.
Article L251-8 I.- The economic interest grouping agreement shall determine the organisation of the grouping, subject to the
provisions of this chapter. It shall be prepared in writing and published according to the terms fixed by a Conseil d'Etat decree.
II.- The agreement shall contain the following information in particular: 1° The name of the grouping; 2° The surnames, company names or business names, legal form, address of the domicile or registered office and,
if applicable, identification number of each of the members of the grouping, and, where applicable, the town where the registry is situated with which it is registered or the town where the chamber of trade is situated with which it is registered;
3° The term for which the grouping is formed; 4° The object of the grouping; 5° The address of the grouping’s registered office. III.- All amendments to the agreement shall be prepared and published in accordance with the same conditions as
the agreement itself. These shall be binding on third parties only from the date of this publication.
Article L251-9 The grouping, during its existence, may accept new members in accordance with the conditions fixed by the
formation agreement. Any member of the grouping may withdraw in accordance with the conditions specified by the agreement, provided
that they have fulfilled their obligations.
Article L251-10 The meeting of members of the grouping shall be authorised to take all decisions, including on early dissolution or
extension, in accordance with the conditions determined by the agreement. This agreement may specify that all decisions, or some of these, shall be taken in accordance with the quorum and majority conditions which it establishes.
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COMMERCIAL CODE If the agreement is silent on this, decisions shall be taken unanimously.
The agreement may also assign to each member a number of votes different from that assigned to the other members. Failing this, each member shall have one vote.
The meeting must meet at the request of at least one-quarter of the members of the grouping.
Article L251-11 The grouping shall be administered by one or more persons. A legal person may be appointed as administrator of
the grouping provided that this person appoints a permanent representative who shall be subject to the same civil and criminal liabilities as if they were administrator in their own name. The administrator or administrators of the grouping, and the permanent representative of the legal person appointed as administrator, shall be individually or jointly and severally liable, as applicable, towards the grouping or third parties, for breaches of the acts and regulations applying to groupings, for the violation of the grouping rules and for their management errors. If several administrators have cooperated in the same acts, the court shall determine the contribution of each one to the compensation for the damage. Subject to this reservation, the grouping agreement or, failing this, the meeting of members shall freely organise the
administration of the grouping and shall appoint the administrators whose competence, powers and conditions of dismissal it shall determine.
In relations with third parties, an administrator shall commit the grouping by any act falling within its object. Any limitation of powers shall not be binding on third parties.
Article L251-12 The supervision of the management, which must be entrusted to natural persons, and the supervision of the
accounts shall occur in accordance with the conditions specified by the grouping’s formation agreement. However, when a grouping issues bonds in accordance with the conditions specified by Article L.251-7, the
supervision of the management shall be carried out by one or more natural persons appointed by the meeting. The term of their duties and their powers shall be determined in the agreement.
The supervision of the accounts in the groupings referred to in the above paragraph and in groupings which have one hundred employees or more at the end of a financial year must be carried out by one or more auditors chosen from the list referred to in Article L.225-219 and appointed by the meeting for a term of six financial years. The provisions of this code on the incompatibilities, powers, duties, obligations, liability, withdrawal, dismissal and remuneration of the auditor of public limited companies and the penalties specified by Article L.242-27 shall apply to the auditors of economic interest groupings, subject to the rules specific thereto.
In the cases specified by the above two paragraphs, the provisions of Articles L.242-25, L.242-26, L.242-28 and L.245-8 to L.245-17 shall apply to the managers of the grouping and to the natural persons managing member companies or who are permanent representatives of the legal persons managing these companies.
Article L251-13 In groupings meeting one of the criteria defined in Article L.232-2, the administrators shall be required to prepare a
statement of the liquid and current assets, excluding operating assets, and of the current liabilities, a projected profit and loss account and a financing table at the same time as the annual balance sheet and a projected financing plan.
A Conseil d'Etat decree shall specify the frequency, deadlines and terms for preparing these documents.
Article L251-14 The documents referred to in Article L.251-13 shall be analysed in written reports on the development of the
grouping prepared by the administrators. The documents and reports shall be notified to the auditor and to the works council.
If the provisions of Article L.251-13 and the above paragraph are not observed, or if the information given in the reports referred to in the above paragraph requires observations therefrom, the auditor shall indicate this in a report to the administrators or in the annual report. The auditor may request that this report is sent to the members of the grouping or that it is brought to the attention of the meeting of members. This report shall be notified to the works council.
Article L251-15 When the auditors identify, while carrying out their work, facts likely to compromise the continued operation of the
grouping, they shall inform the administrators of these, in accordance with the conditions fixed by a Conseil d'Etat decree. The administrators shall be required to reply to the auditors within fifteen days. The reply shall be notified to the works council. The auditors shall inform the president of the court of this.
If these provisions are not observed, or if it is noted that, despite the decisions taken, the continued operation of the grouping remains compromised, the auditors shall prepare a special report and shall ask the administrators, in writing, to ensure that the next general meeting deliberates the facts identified. This report shall be notified to the works council.
If, at the end of the general meeting, the auditors note that the decisions taken do not allow the continued operation of the grouping to be ensured, they shall inform the president of the court of the steps taken and the results of these.
Article L251-16 The works council or, failing this, the employees’ representatives shall exercise, in economic interest groupings, the
powers specified by Articles L.422-4 and L.432-5 of the Labour Code. The administrators shall inform the auditor of requests for explanations made by the works council or the
employees’ representatives, the reports sent thereto and the replies made pursuant to Articles L.422-4 and L.432-5 of the Labour Code.
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COMMERCIAL CODE Article L251-17
The instruments and documents originating from the grouping and intended for third parties, particularly letters, invoices, notices and various publications, must legibly indicate the name of the grouping followed by the words: “groupement d’intérêt économique” (economic interest grouping) or the abbreviation: “GIE”.
Any breach of the provisions of the above paragraph shall be punished by a fine of 3,750 euros.
Article L251-18 Any company or association whose object corresponds to the definition of the economic interest grouping may be
converted into such a grouping without giving rise to the dissolution or creation of a new legal person. An economic interest grouping may be converted into a general partnership without giving rise to the dissolution or
creation of a new legal person.
Article L251-19 The economic interest grouping shall be dissolved: 1° When the term is reached; 2° When its object is achieved or terminated; 3° When its members decide this in accordance with the conditions specified by Article L.251-10; 4° By a court decision, for due reasons; 5° By the death of a natural person or by the dissolution of a legal person, where these are members of the
grouping, unless otherwise stipulated in the agreement.
Article L251-20 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
If one of the members is disqualified by law, declared bankrupt or prohibited from running, managing, administering or controlling a commercial business, regardless of its type, or a non-commercial private-law corporation, the group is dissolved, unless its continuation is provided for in the contract or the other members so decide unanimously.
Article L251-21 The dissolution of the economic interest grouping shall lead to its winding-up. The personality of the grouping shall
continue for the purposes of the winding-up.
Article L251-22 The winding-up shall occur in accordance with the provisions of the agreement. Failing this, a liquidator shall be
appointed by the meeting of members of the grouping or, if the meeting could not make this appointment, by a court decision.
After paying the debts, the surplus of assets shall be distributed between the members in accordance with the conditions specified by the agreement. Failing this, the distribution shall be made in equal parts.
Article L251-23 (Order No. 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The designation"economic interest group"and the acronym"EIG"can only be used by groups which are subject to the provisions of the present Chapter. The illicit use of that designation or that acronym or any expression likely to cause confusion in relation thereto carries a penalty of two years' imprisonment and a fine of 6,000 euros.
The court may also order publication of the judgment, at the convicted person's expense, in a maximum of three periodicals, and posting thereof under the conditions laid down in Article L. 131-35 of the Penal Code.
CHAPTER II European economic interest grouping Articles L252-1 to
L252-13
Article L252-1 European economic interest groupings registered in France in the commercial and companies register shall enjoy
legal personality from their registration.
Article L252-2 European economic interest groupings shall be civil or commercial in nature, depending on their object.
Registration shall not lead to a presumption of commerciality of a grouping.
Article L252-3 The rights of members of the grouping may not be represented by negotiable securities.
Article L252-4 The collegial decisions of the European economic interest grouping shall be taken by the meeting of members of
the grouping. However, the rules may stipulate that these decisions, or some of them, may be taken in the form of a consultation by exchange of letters.
Article L252-5 The manager or managers of a European economic interest grouping shall be individually or jointly and severally
liable, as applicable, towards the grouping or third parties for breaches of the acts or regulations applying to the
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COMMERCIAL CODE grouping, for the violation of the grouping rules and for their management errors. If several managers have cooperated in the same acts, the court shall determine the contribution of each one to the compensation for the damage.
Article L252-6 A legal person may be appointed as manager of a European economic interest grouping. On its appointment, it
shall be required to appoint a permanent representative who shall be subject to the same civil and criminal liabilities as if they were manager in their own name, without prejudice to the joint and several liability of the legal person which they represent.
Article L252-7 The provisions of the previous chapter applying to economic interest groupings governed by French law on financial
liabilities, supervision of the accounts and winding-up shall apply to European economic interest groupings.
Article L252-8 Any company or association and any economic interest grouping may be converted into a European economic
interest grouping without giving rise to the dissolution or creation of a new legal person. A European economic interest grouping may be converted into an economic interest grouping governed by French
law or a general partnership without giving rise to the dissolution or creation of a new legal person.
Article L252-9 The nullity of the European economic interest grouping and of the acts or deliberations of this may result only from
the breach of the essential provisions of Council Regulation (EEC) No 2137/85 of 25 July 1985 or the provisions of this chapter or from one of the reasons for nullity of agreements in general.
The action for nullity shall be extinguished when the reason for the nullity ceases to exist on the day when the court rules on the merits at first instance, except where this nullity is based on the illegality of the object of the grouping.
Articles 1844-12 and 1844-17 of the Civil Code shall apply.
Article L252-10 European economic interest groupings may not make a public offering. If this occurs, the agreements made or
securities issued shall be declared invalid. If the manager or managers of a European economic interest grouping or the permanent representative of a legal
person managing a European economic interest grouping make a public offering, this shall be punished by a prison sentence of two years and a fine of 300,000 euros.
Article L252-11 The use in relations with third parties of any instruments, letters, notes and similar documents not containing the
text specified by Article 25 of Council Regulation (EEC) No 2137/85 of 25 July 1985 shall be punished by the penalties specified by Article L.251-17.
Article L252-12 The name “groupement européen d’intérêt économique” (European economic interest grouping) and the
abbreviation “GEIE” may be used only by groupings subject to the provisions of Council Regulation (EEC) No 2137/85 of 25 July 1985. The illegal use of this name, this abbreviation or any expression likely to lead to confusion with these shall be punished by the penalties specified by Article L.251-23.
Article L252-13 Articles L.242-26 and L.242-27 shall apply to the auditors of European economic interest groupings. Articles
L.242-25 and L.242-28 shall apply to the directors of the grouping and to the natural persons running member companies or who are permanent representatives of the legal persons running these companies.
BOOK III Certain types of sale and exclusivity clauses Articles L310-1 to
L330-3 TITLE I Closing-down sales, warehouse sales, clearance sales and sales in factory shops Articles L310-1 to
L310-7
Article L310-1 Closing-down sales are defined as sales accompanied or preceded by publicity and advertised as being aimed at,
through price reductions, the accelerated disposal of all or part of the goods in a commercial establishment following a decision, whatever the reason for this, of cessation, seasonal suspension or change of activity, or substantial alteration of the operating conditions.
Closing-down sales shall be subject to authorisation on the basis of a detailed inventory of the goods to be cleared produced by the applicant who may be required to prove the origin of the goods by means of invoices. Authorisation shall be granted by the prefect in whose jurisdiction the location of the closing-down sale is situated, for a period which may not exceed two months and subject to the recipient of the authorisation proving, within six months of this, that the event giving rise to the application for authorisation has actually occurred.
For the period of the closing-down sale, it shall be prohibited to offer for sale goods other than those appearing in
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COMMERCIAL CODE the inventory on the basis of which the authorisation was granted.
Article L310-3 (Order No. 2004-274 of 25 March 2004 Art. 29 Official Journal of 27 March 2004)
I. - General sales involve the selling of goods accompanied or preceded by advertising and are presented as being intended, through price reductions, to achieve rapid disposal of goods held in stock.
Such sales can only take place during two periods in each calendar year for a maximum duration of six weeks, the dates of which are determined in each Department by the relevant administrative authority pursuant to conditions laid down in the decree referred to in Article L. 310-7, and may only involve goods offered for sale and paid for at least one month prior to the commencement date of the sale period in question.
II. - In any advertising, company name, corporate name or trade name, use of the word"sale(s)"or derivatives thereof is prohibited for designation of any activity, corporate name, trade name, company name or feature which does not relate to a general sale as defined in I above.
Article L310-4 A factory warehouse or shop name may be used only by producers selling, directly to the public, part of their
production not disposed of through mass channels or which has been returned. These direct sales shall involve solely the production from the previous marketing season, thus justifying its sale at a reduced price.
Article L310-5 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Order No. 2004-274 of 25 March 2004 Art. 28 Official Journal of 27 March 2004)
Those who commit the following offences shall incur a fine of 15,000 euros: 1. The fact of holding a clearance sale without the prior declaration referred to in Article L. 310-1 or in violation of
the conditions laid down in that article; 2. The fact of holding a sale on temporary premises without the authorisation stipulated in Article L. 310-2 or in
violation of that authorisation; 3. The fact of holding sales outside the periods indicated in I of Article L. 310-3 or involving goods held for less than
one month on the commencement date of the sale period in question; 4. The fact of using the word"sale(s)"or derivatives thereof if such use does not relate to a sale as defined in I of
Article L. 310-3; 5. The fact of using the designation"factory shop"or"factory depot"in violation of the provisions of Article L. 310-4; 6. The fact of organising a commercial event without making the declaration referred to in Article L. 740-2 or failing
to comply with the conditions applicable to the event declared. Natural persons shall also incur the additional penalty of posting on the court notice-board, or publication, of the
decision pronounced, as provided for in Article 131-35 of the Penal Code.
Article L310-6 Legal persons may be declared criminally liable, in accordance with the conditions specified by Article 121-2 of the
Penal Code, for the offences defined in Article L.310-5. The penalties incurred by legal persons shall be: 1° The fine according to the terms specified by Article 131-38 of the Penal Code; 2° The posting on a notice-board or circulation of the decision ordered in accordance with the conditions specified
by 9° of Article 131-39 of the Penal Code.
Article L310-7 The terms for applying the provisions of this title shall be fixed by a Conseil d'Etat decree, particularly the sectors in
which price reduction advertisements intended for consumers, whatever the medium of these, cannot be expressed as a percentage or by indicating the price previously applied, and the duration or conditions of this ban.
TITLE II Sales by public auction Articles L321-4 to
L320-2
Article L320-1 No-one may use public auctions as the normal method for carrying out their trade.
Article L320-2 Sales established by the law or carried out by the courts and sales following death, winding-up proceedings or
cessation of trading, or in all other necessary cases which shall be assessed by the Tribunal de commerce, shall be exempt from the ban specified by Article L.320-1.
Sales by public auction of edible goods and low-value objects known in the trade as small dry goods shall also be exempt.
CHAPTER I Voluntary sales of chattels by public auction Articles L321-4 to
L321-38
SECTION I
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COMMERCIAL CODE General provisions Articles L321-4 to
L321-3
Article L321-1 Voluntary sales of chattels by public auction may involve only second-hand goods or new goods originating directly
from the seller’s production if the latter is neither a trader nor a craftsperson. These goods shall be sold separately or in lots.
This chapter defines chattels as property which is movable by nature. Goods which, at any stage of their production or distribution, have entered the possession of a person for their own
use, through any act for money consideration or free of charge, shall be regarded as second-hand.
Article L321-2 Voluntary sales of chattels by public auction shall, except in the cases specified by Article L.321-36, be organised
and conducted by the commercial companies governed by Book II and whose activity is regulated by the provisions of this chapter.
These sales may also be organised and conducted, by way of a secondary activity, by notaries and court huissiers. This activity shall be carried out in the context of their office and according to the rules applying thereto. They may be appointed as agent only by the owner of the goods.
Article L321-3 The act of offering an item of property, by acting as the owner’s agent, in public computerised auctions in order to
sell this to the highest bidder shall constitute a sale by public auction within the meaning of this chapter. Brokerage operations in computerised auctions, characterised by the absence of a sale by auction and intervention
by a third party in the conclusion of the sale of an item of property between the parties, shall not constitute a sale by public auction.
Brokerage operations in computerised auctions involving cultural property shall also be subject to the provisions of this chapter, except for Articles L.321-7 and L.321-16.
Subsection 1 Companies involved in voluntary sales of chattels by public auction Articles L321-4 to
L321-17
Article L321-4 The object of companies involved in voluntary sales of chattels by public auction shall be limited to the valuation of
chattels and to the organisation and conducting of voluntary sales of chattels by public auction in accordance with the conditions fixed by this chapter.
Companies involved in voluntary sales of chattels by public auction shall act as agents for the owner of the property. They shall not be authorised to purchase or sell, directly or indirectly and on their own behalf, chattels offered for sale
by public auction. This ban shall also apply to the directors, members and employees of the company. Exceptionally, the latter may, however, sell, through the company, property belonging thereto provided that this is specified by the publicity.
Article L321-5 Companies involved in voluntary sales of chattels by public auction may carry out their activity only after having
obtained the approval of the Authority for Voluntary Sales of Chattels by Public Auction established by Article L.321-18. They must present sufficient guarantees with regard to their organisation, their technical and financial resources, the
honourability and experience of their directors and the arrangements for ensuring the security of transactions with regard to their clients.
Article L321-6 Companies involved in voluntary sales of chattels by public auction must, whatever their form, appoint an auditor
and a deputy auditor. They must provide proof of: 1° The existence, at a credit institution, of an account intended exclusively to receive the funds held on behalf of
others; 2° An insurance covering their professional liability; 3° An insurance or surety guaranteeing the representation of the funds mentioned in 1°.
Article L321-7 Companies involved in voluntary sales of chattels by public auction shall give the Authority for Voluntary Sales of
Chattels by Public Auction any necessary clarification on the premises where the chattels offered for sale will normally be exhibited and where the operations for sales by public auction will usually take place. When the exhibition or sale takes place in another location, or by computer, the company shall inform the Authority of this in advance.
Article L321-8 Companies involved in voluntary sales of chattels by public auction shall contain, among their directors, members or
employees, at least one person with the qualification required to conduct a sale or holding a certificate, diploma or authorisation recognised as equivalent in this respect, in accordance with the conditions defined by a Conseil d'Etat
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Article L321-9 The persons referred to in Article L.321-8 shall alone be authorised to conduct the sale, designate the highest
bidder as the successful bidder or declare the item not sold and prepare the official record of this sale. The official record shall be completed at the latest one clear day after the end of the sale. It shall indicate the name
and address of the new owner declared by the successful bidder, the identity of the seller, the description of the item and its publicly recorded price.
Within fifteen days of the sale, the seller may, through the company, sell by private treaty the items declared as not sold at the end of the auction. This transaction shall not be preceded by any exhibition or publicity. It may not occur at a price lower than the last bid made before the item was withdrawn from sale or, in the absence of bids, at a price lower than the reserve price. The highest bidder, if known, shall be previously informed of this. This transaction shall be recorded in an instrument annexed to the official record of the sale.
Article L321-10 Companies involved in voluntary sales of chattels by public auction shall keep a register on a day-to-day basis,
pursuant to Articles 321-7 and 321-8 of the Penal Code, and also an index in which they shall enter their official records.
Article L321-11 Each voluntary sale of chattels by public auction shall give rise to publicity in any appropriate form. The reserve price is the minimum price agreed with the seller below which the item may not be sold. If the item has
been valued, this price may not be fixed at an amount higher than the lowest valuation appearing in the publicity or announced publicly by the person conducting the sale and indicated in the official record.
Article L321-12 Companies involved in voluntary sales of chattels by public auction may guarantee to the seller a minimum sale
price for the item offered for sale, which shall be paid if the item is sold. If the item has been valued, this price may not be fixed at an amount higher than the valuation indicated in Article L.321-11.
This option shall be open only to companies which have concluded, with an insurance company or credit institution, a contract under the terms of which this company or institution undertakes, in the event of the company’s failure, to refund the difference between the guaranteed amount and the sale price if the amount of the guaranteed price is not achieved during the sale by auction.
Article L321-13 Companies involved in voluntary sales of chattels by public auction may give the seller an advance on the sale price
of the item offered for sale.
Article L321-14 Companies involved in voluntary sales of chattels by public auction shall be liable, with regard to the seller and
purchaser, for the representation of the price and the delivery of the items which they have sold. Any clause which aims to avoid or limit their liability shall be deemed to be unwritten.
The item sold may be delivered to the purchaser only when the company has received the price for this or when any guarantee has been given thereto with regard to the payment of the price by the purchaser.
If the successful bidder fails to pay, after being sent formal notice without this producing any response, the item shall be resold at the seller’s request due to the sham bid of the defaulting bidder. If the seller does not request this within one month of the sale by auction, the sale shall be cancelled ipso jure, without prejudice to the damages due by the defaulting bidder.
The funds held on behalf of the seller shall be paid thereto at the latest two months after the sale.
Article L321-15 I.- Where one or more voluntary sales of chattels by public auction are conducted: 1° If the company organising the sale does not have the approval specified by Article L.321-5 either because it does
not hold this or because its approval has been suspended or temporarily or permanently withdrawn; 2° Or if the national of a Member State of the European Communities or of a Member State of the European
Economic Area organising the sale has not made the declaration specified by Article L.321-34; 3° Or if the person conducting the sale does not meet the conditions specified by Article L.321-8 or is subject to a
temporary or permanent ban on conducting these sales, this shall be punished by a prison sentence of two years and a fine of 375,000 euros. II.- Natural persons guilty of one of the offences against the provisions specified by this article shall also incur the
following additional penalties: 1° A ban, for a maximum period of five years, on carrying out a public office or the professional or social activity in
the exercise or on the occasion of the exercise of which the offence was committed; 2° The posting on a notice-board or circulation of the sentence ordered in accordance with the conditions specified
by Article 131-35 of the Penal Code; 3° The confiscation of the sums or items unduly received by the offender, with the exception of items which may be
returned. III.- Legal persons may be declared criminally liable, in accordance with the conditions specified by Article 121-2 of
the Penal Code, for the offences defined in this article. The penalties incurred by legal persons shall be:
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COMMERCIAL CODE 1° The fine according to the terms specified by Article 131-38 of the Penal Code; 2° For a maximum period of five years, the penalties indicated in 1°, 2°, 3°, 4°, 8° and 9° of Article 131-39 of the
Penal Code. The ban indicated in 2° of the same article shall involve the activity in the exercise or on the occasion of the exercise of which the offence was committed.
Article L321-16 The provisions of Article L.720-5 shall not apply to the premises used by the companies indicated in Article L.321-2.
Article L321-17 (Act No. 2004-130 of 11 February 2004 Art. 57 Official Journal of 12 February 2004)
Companies conducting voluntary sales of movables by public auction, and public or ministerial officials authorised to conduct judicial and voluntary sales, and likewise experts who carry out valuations of assets, assume liability when movables are sold by public auction, pursuant to the rules applicable to such sales.
Clauses which seek to avoid or limit their liability are prohibited and deemed not to exist. Vicarious liability actions initiated in relation to valuations and voluntary and judicial sales of movables by public
auction lapse ten years after the date of the adjudication or valuation.
Subsection 2 Authority for Voluntary Sales of Chattels by Public Auction Articles L321-18 to
L321-23
Article L321-18 An Authority for Voluntary Sales of Chattels by Public Auction shall be established which shall enjoy legal
personality. The Authority for Voluntary Sales of Chattels by Public Auction shall be responsible: 1° For approving the companies involved in voluntary sales of chattels by public auction and the experts referred to
in Section 3; 2° For registering the declarations of nationals of the States referred to in Section 2; 3° For penalising, in accordance with the conditions specified by Article L.321-22, breaches of the acts, regulations
and professional obligations applying to companies involved in voluntary sales of chattels by public auction, to approved experts and to nationals of a Member State of the European Communities or a Member State of the European Economic Area occasionally carrying out the activity of voluntary sales of chattels by public auction in France.
The decision of the Authority for Voluntary Sales of Chattels by Public Auction refusing or withdrawing the approval of a company or expert or the registration of the declaration of a national of a State referred to in Section 2 must be reasoned.
Article L321-19 The Authority for Voluntary Sales of Chattels by Public Auction and the National Board of Court Valuers and
Auctioneers of Chattels shall jointly organise the professional training with a view to obtaining the qualification required to conduct sales.
Article L321-20 The Authority for Voluntary Sales of Chattels by Public Auction shall inform the National Board, the boards of court
valuers and auctioneers of chattels and the departmental boards of court huissiers and notaries of the acts committed in their jurisdiction which have been brought to its attention and which may infringe the regulations on voluntary sales of chattels by public auction.
The departmental boards of court huissiers and notaries, the National Board and the boards of court valuers and auctioneers of chattels shall provide the same information to the Authority for Voluntary Sales of Chattels by Public Auction.
Article L321-21 The Authority for Voluntary Sales of Chattels by Public Auction shall consist of eleven members appointed for four
years by the Minister for Justice, as follows: 1° Six qualified persons; 2° Five representatives of the professionals, including one expert. Members of the Authority may only be reappointed once. The chairman shall be elected by the members of the Authority from amongst them. Deputies shall be appointed in equal number and in the same forms. A member of the Attorney-General’s department shall be appointed to carry out the duties of government
commissioner to the Authority for Voluntary Sales of Chattels by Public Auction. The Authority shall be financed by the payment of professional contributions by the companies involved in voluntary
sales of chattels by public auction and by the approved experts. The amount of these contributions shall be fixed by the Authority according to the activity of those required to pay.
Article L321-22 Any breach of the acts, regulations or professional obligations applying to companies involved in voluntary sales of
chattels by public auction, to approved experts and to persons authorised to conduct sales pursuant to the first paragraph of Article L.321-9 may give rise to a disciplinary penalty. The period of prescription shall be three years from
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COMMERCIAL CODE the breach.
The Authority shall rule by reasoned decisions. No penalty may be ordered without the complaints having been notified to the legal agent of the company, to the expert or to the person authorised to conduct sales, without the latter having been able to inspect the file and without the latter having been duly heard or called.
The penalties applicable to companies involved in voluntary sales of chattels by public auction, to approved experts and to persons authorised to conduct sales, taking into account the gravity of the alleged acts, shall be: caution, reprimand, ban on temporarily carrying out all or part of the activity for a period which may not exceed three years and withdrawal of the company’s or expert’s approval or a permanent ban on conducting sales.
In an emergency and as a precautionary measure, the chairman of the Authority may order the temporary suspension of the exercise of all or part of the activity of a company involved in voluntary sales of chattels by public auction, of an approved expert or of a person authorised to conduct sales, for a period which may not exceed one month, unless an extension is granted by the Authority for a period which may not exceed three months. The chairman shall immediately inform the Authority of this.
Article L321-23 The decisions of the Authority for Voluntary Sales of Chattels by Public Auction and its chairman shall be open to
appeal before the Paris Cour d'appel. The appeal may be brought before the first president of said court ruling on urgent applications.
SECTION II Free provision of services in the activity of voluntary sales of chattels by public
auction by nationals of the Member States of the European Communities and of the Member States of the European Econo
Articles L321-24 to L321-28
Article L321-24 Nationals of a Member State of the European Communities or of a Member State of the European Economic Area
who permanently carry out the activity of voluntary sales of chattels by public auction in one of these States other than France may occasionally carry out this professional activity in France. This activity may be carried out only after a declaration has been made to the Authority for Voluntary Sales of Chattels by Public Auction. The declaration shall be made at least three months before the date of the first sale held in France. The Authority shall be informed of subsequent sales at least one month before they are held. It may object, in a reasoned decision, to the holding of one of these sales.
Article L321-25 Persons permanently carrying out the activity of voluntary sales of chattels by public auction in their country of origin
may use, in France, their qualification expressed in the or one of the languages of the State in which they are established, accompanied by a translation into French and, if appropriate, the name of the professional organisation to which they belong.
Article L321-26 In order to be able to occasionally carry out the activity of voluntary sales of chattels by public auction, the national
of another Member State of the European Communities or of a Member State of the European Economic Area must prove, to the Authority for Voluntary Sales of Chattels by Public Auction, that they hold one of the diplomas, certificates or authorisations specified by Article L.321-8 or, in the event of a legal person, that this has, among its directors, members or employees, a person meeting this condition.
They must also provide proof to the Authority of the existence of an establishment in their country of origin and of professional and personal character guarantees.
Article L321-27 Nationals of a Member State of the European Communities or of a Member State of the European Economic Area
shall be required to respect the rules governing the activity of voluntary sales of chattels by public auction specified by this chapter without prejudice to the obligations not contrary thereto which are incumbent on them in the State in which they are established.
Article L321-28 In the event of a breach of the provisions of this chapter, nationals of the Member States of the European
Communities and of the Member States of the European Economic Area shall be subject to the provisions of Article L.321-22. However, the penalties of the temporary ban on carrying out the activity and of the withdrawal of approval shall be replaced by the penalties of the temporary or permanent ban on carrying out in France the activity of voluntary sales of chattels by public auction.
In the event of penalties, the Authority for Voluntary Sales of Chattels by Public Auction shall inform the competent authority in the State of origin of these.
SECTION III Experts approved by the Authority for Voluntary Sales of Chattels by Public
Auction Articles L321-29 to L321-35-1
Article L321-29
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COMMERCIAL CODE The experts who may be used by the companies involved in voluntary sales of chattels by public auction, court
huissiers, notaries and court valuers and auctioneers of chattels may be approved by the Authority for Voluntary Sales of Chattels by Public Auction.
The Authority shall establish a list of the approved experts in each speciality.
Article L321-30 All approved experts must be entered in one of the specialities whose nomenclature is established by the Authority
for Voluntary Sales of Chattels by Public Auction. No-one may be entered in more than two specialities, unless these involve specialities connected to previous
specialities which may not number more than two.
Article L321-31 (Act No. 2004-130 of 11 February 2004 Art. 58 1 Official Journal of 12 February 2004)
Any expert, registered or otherwise, is required to take out an insurance policy to cover his professional liability. He is jointly and severally liable with the organiser of the sale in respect of his own activities.
Article L321-32 Persons entered in the list specified by Article L.321-29 may indicate their capacity only using the term “expert
approved by the Authority for Voluntary Sales of Chattels by Public Auction”. This term must be accompanied by the indication of their speciality or specialities.
Article L321-33 If any person not appearing in the list specified by Article L.321-39 uses the term indicated in this article, or a term
which is similar in nature and likely to cause an error on the part of the public, this shall be punished by the penalties specified by Article 433-17 of the Penal Code.
Article L321-34 The Authority for Voluntary Sales of Chattels by Public Auction may order the withdrawal of approval of an expert in
the event of court-ordered prohibition, serious professional misconduct or sentencing for acts contrary to honour, probity or good morals.
Article L321-35 (Act No. 2004-130 of 11 February 2004 Art. 58 2 and 3 Official Journal of 12 February 2004)
An expert, registered or otherwise, shall not value or offer for sale an item belonging to him, nor directly or indirectly acquire an item for his own account, in the sales by public auction in which he is involved.
By way of exception, however, an expert may sell an item belonging to him through a person referred to in Article L. 321-2, subject to that fact being stated in the publicity.
Article L321-35-1 (inserted by Act No. 2004-130 of 11 February 2004 Art. 58 4 Official Journal of 12 February 2004)
When he deals with an unregistered expert, the organiser of the sale shall ensure that the said expert complies with the obligations stipulated in the first paragraph of Article L. 321-31 and Article L. 321-35.
SECTION IV Sundry provisions Articles L321-36 to
L321-38
Article L321-36 Sales by public auction of chattels belonging to the State and defined in Article L.68 of the State Property Code and
all sales of chattels carried out in the State property form in accordance with the conditions specified by Article L.69 of the same code shall continue to be carried out according to the terms specified by these articles. However, as an exception to the provisions of Articles L.68, L.69 and L.70 of the same code, these sales may be carried out with publicity and competition, on behalf of the State, by companies involved in voluntary sales of chattels by public auction in accordance with the conditions specified by this chapter.
Sales of chattels by public auction coming under the Customs Code shall be carried out according to the terms specified by the same code. However, as an exception to the provisions of the Customs Code, these sales may also be carried out with publicity and competition, on behalf of the State, by companies involved in voluntary sales of chattels by public auction in accordance with the conditions specified by this chapter.
Article L321-37 The civil courts alone shall be competent to hear legal proceedings relating to sale activities in which a company
involved in voluntary sales of chattels by public auction, established in accordance with this chapter, is a party. Any clause to the contrary shall be deemed to be unwritten. However, members may agree, in the articles of association, to submit to arbitrators disputes which may occur between them or between companies involved in voluntary sales due to their activity.
Article L321-38 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
A Conseil d'Etat decree determines the conditions of implementation of the present Chapter, which include the guarantee scheme provided for in Article L. 321-6, the arrangements for informing the council for voluntary sales of
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COMMERCIAL CODE movables at public auctions when the exhibition or the sale does not take place in the premises referred to in the first sentence of Article L. 321-7, the indications that must appear in the publication referred to in Article L. 321-11, the terms and conditions applicable to the organisation and operations of the council for sales at public auctions and the council's conditions for the approval of experts.
CHAPTER II Other sales by auction Articles L322-1 to
L322-16
Article L322-1 Public and retail sales of goods which take place following a death or by court order shall be conducted according to
the specified forms and by the professional officers employed for the forced sale of chattels in accordance with Article 53 of Act No 650 of 9 July 1991 on the reform of civil execution procedures and with Article 945 of the Code of Civil Procedure.
Article L322-2 Sales of goods following a winding-up proceedings shall be conducted in accordance with Article L.622-18 et seq. The debtor’s chattels may be sold at auction only by court valuers and auctioneers of chattels, notaries or huissiers,
in accordance with the acts and regulations determining the powers of these various officers.
Article L322-3 Public sales and sales by auction following a cessation of trading, or in the other cases of necessity specified by
Article L.320-2, may take place only where they have been previously authorised by the Tribunal de commerce, at the request of the trading owner to which a detailed list of the goods shall be attached.
The court shall record, in its judgment, the act giving rise to the sale. It shall indicate the location in the district where the sale shall be conducted. It may even order that the sale shall occur only in lots whose size it shall fix.
It shall decide who, from among the brokers, court valuers and auctioneers of chattels or other public officers, shall be responsible for receiving the bids.
The authorisation due to a reason of necessity may be granted only to the sedentary trader who has had their actual domicile in the district where the sale must be conducted for at least one year.
Notices affixed to the door of the place where the sale is to be conducted shall set out the judgment authorising this.
Article L322-4 Public sales by auction of wholesale goods shall be conducted by sworn commodities brokers in the cases, in
accordance with the conditions and according to the forms fixed by a Conseil d'Etat decree.
Article L322-5 Any breach of the provisions of Articles L.320-1, L.320-2 and L.322-1 to L.322-7 shall be punished by the
confiscation of the goods placed on sale and also a fine of 3,750 euros which shall be ordered jointly and severally against both the seller and the public officer assisting the latter, without prejudice to damages, if any.
Any person whose agent is intended to evade the ban specified by Article L.320-1 shall be regarded as an accomplice and shall be subject to the same penalties.
Article L322-6 If sellers or public officers include in sales held by court order, following attachment, death, court-ordered
winding-up, cessation of trading or in the other cases of necessity specified by Article L.320-2, new goods not forming part of the business or chattels placed on sale, this shall be punished by the penalties specified by Article L.322-5.
Article L322-7 In places where there are no commercial brokers, the court valuers and auctioneers of chattels, notaries and
huissiers shall conduct the above sales, according to the rights which are respectively assigned thereto by the acts and regulations.
They shall, for these sales, be subject to the forms, conditions and tariffs imposed on brokers.
Article L322-8 (Order No. 2004-279 of 25 March 2004 Art. 3 I Official Journal of 27 March 2004)
Sworn brokers may conduct voluntary wholesale auctions of goods without the commercial court's permission. Permission is nevertheless required for goods such as motor vehicles, arms, munitions and their accessories, objets d'art, collector's items, antiques and other second-hand goods, a list of which is drawn up by order of the Minister of Justice and the Trade Minister.
NB: Order 2004-279 of 25 March 2004 Arts. 8 and 9: The provisions of Article L322-8 of the Commercial Code are applicable in New Caledonia and the Wallis and Futuna Islands.
Article L322-9 Brokers established in a town where a Tribunal de commerce is situated shall be authorised to conduct the sales
governed by this chapter in all localities falling within the jurisdiction of this court in which there are no brokers. They shall comply with the provisions specified by Articles 871 and 873 of the General Tax Code.
Article L322-10 The brokerage fee for sales covered by Articles L.322-8 to L.322-13 shall be fixed, for each locality, by the Minister
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COMMERCIAL CODE for Agriculture, Trade or Public Works, following an opinion from the chamber of trade and industry and the Tribunal de commerce. Under no circumstances may this exceed the fee established for sales by private treaty for the same sorts of goods.
Article L322-11 Disputes relating to sales conducted pursuant to Article L.322-8 shall be brought before the Tribunal de commerce.
Article L322-12 The sales specified by Article L.322-8 shall be held in premises specially authorised for this purpose, following an
opinion from the chamber of trade and industry and the Tribunal de commerce.
Article L322-13 A Conseil d'Etat decree shall determine the measures needed to apply Articles L.322-11 and L.322-12, in particular
the forms and conditions of the authorisations specified by Article L.322-12.
Article L322-14 The tribunaux de commerce may, following a death or cessation of trading, and in all other cases of necessity
whose assessment is submitted thereto, authorise the sale by wholesale auction of goods of any kind and any origin. The authorisation shall be given on request. A detailed list of the goods to be sold shall be attached to the request. The court shall record, in its judgment, the act giving rise to the sale.
Article L322-15 Sales authorised pursuant to the above article, and all those which are authorised or ordered by the consular court
in the various cases specified by this code, shall be carried out by brokers. However, the court, or the judge authorising or ordering the sale, shall remain responsible for appointing, in order to
proceed with this, another type of public officer. In this case, the public officer, whoever this is, shall be subject to the provisions governing brokers with regard to forms, tariffs and liability.
Article L322-16 The provisions of Articles L.322-11 to L.322-13 shall apply to the sales referred to in Articles L.322-14 and L.322-15.
TITLE III Exclusivity clauses Articles L330-1 to
L330-3
Article L330-1 The period of validity of any exclusivity clause by which the purchaser, transferee or lessee of chattels undertakes
with regard to the seller, assignor or lessor not to use similar or additional items originating from another supplier shall be limited to a maximum of ten years.
Article L330-2 When the contract containing the exclusivity clause indicated in Article L.330-1 is followed subsequently, between
the same parties, by other similar undertakings involving the same type of goods, the exclusivity clauses contained in these new agreements shall end on the same date as that appearing in the initial contract.
Article L330-3 Any person who provides to another person a corporate name, trademark or trade name, by requiring therefrom an
exclusivity or quasi-exclusivity undertaking in order to carry out their activity, shall be required, prior to the signature of any contract concluded in the common interest of both parties, to provide the other party with a document giving truthful information allowing the latter to commit to this contract with full knowledge of the facts.
This document, whose content shall be fixed by decree, shall specify in particular the age and experience of the undertaking, the state and prospects for development of the market concerned, the size of the network of operators, the term and conditions of renewal, cancellation and assignment of the contract and the scope of the exclusive rights.
When the payment of a sum is required prior to the signature of the contract indicated above, particularly to obtain the reservation of an area, the benefits provided in return for this sum shall be specified in writing together with the reciprocal obligations of the parties in the event of renunciation.
The document specified by the first paragraph and the draft contract shall be notified at least twenty days before the signature of the contract or, where applicable, before the payment of the sum indicated in the above paragraph.
BOOK IV Pricing freedom and competition Articles L410-1 to
L470-8 TITLE I General provisions Articles L410-1 to
L410-2
Article L410-1 The rules defined in this book shall apply to all production, distribution and service activities, including those which
are carried out by public persons, in particular in the context of public service delegation agreements.
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COMMERCIAL CODE Article L410-2
Except in cases where the law specifies otherwise, the prices of goods, products and services falling, prior to 1 January 1987, under Order No 1483 of 30 June 1945 shall be determined by the free play of competition.
However, in sectors or areas where price competition is limited by either monopoly situations or long-lasting supply problems, or by acts or regulations, a Conseil d'Etat decree may regulate the prices after the Council on Competition has been consulted.
The provisions of the first two paragraphs shall not prevent the government from ordering against excessive price increases or reductions, through a Conseil d'Etat decree, temporary measures motivated by a crisis situation, exceptional circumstances, a public disaster or a clearly abnormal situation in the market in a given sector. The decree shall be adopted following consultation of the National Consumer Council. It shall specify its period of validity which may not exceed six months.
TITLE II Anti-competitive practices Articles L420-1 to
L420-7
Article L420-1 (Act No 2001-420 of 15 May 2001, Article 52, Official Gazette of 16 May 2001)
Common actions, agreements, express or tacit undertakings or coalitions, particularly when they are intended to: 1° Limit access to the market or the free exercise of competition by other undertakings; 2° Prevent price fixing by the free play of the market, by artificially encouraging the increase or reduction of prices; 3° Limit or control production, opportunities, investments or technical progress; 4° Share out the markets or sources of supply, shall be prohibited, even through the direct or indirect intermediation of a company in the group established outside
France, when they have the aim or may have the effect of preventing, restricting or distorting the free play of competition in a market.
Article L420-3 Any undertaking, agreement or contractual clause referring to a practice prohibited by Articles L.420-1 and L.420-2
shall be invalid.
Article L420-4 (Act No 2001-420 of 15 May 2001, Article 48, Official Gazette of 16 May 2001)
The following practices are not subject to the provisions of Articles L.420-1 and L.420-2: 1° Those which result from the implementation of an act or regulation adopted in application thereof; 2° Those whose perpetrators can prove that they have the effect of ensuring economic progress, including by
creating or maintaining jobs, and that they reserve for users a fair share in the resulting profit, without giving the undertakings involved the opportunity to eliminate competition for a substantial part of the products in question. Those practices which may consist of organising, for agricultural products or products of agricultural origin, under the same brand or trade name, the production volumes and quality and the commercial policy, including by agreeing a common transfer price, may impose restrictions on competition only insofar as these are essential to achieve this aim of progress.
II.- Certain categories of agreement or certain agreements, in particular when they are intended to improve the management of small or medium-sized undertakings, may be recognised as meeting these conditions by a decree adopted following a favourable opinion from the Council on Competition.
Article L420-6 (Act No 2001-420 of 15 May 2001, Article 67, Official Gazette of 16 May 2001)
If any natural person fraudulently takes a personal and decisive part in the conception, organisation or implementation of the practices referred to in Articles L.420-1 and L.420-2, this shall be punished by a prison sentence of four years and a fine of 75,000 euros.
The court may order that its decision is published in full or in summary in the newspapers which it designates, at the expense of the offender.
Acts interrupting the period of prescription before the Council on Competition pursuant to Article L.462-7 shall also interrupt the period of prescription of the public action.
Article L420-7 (Act No. 2001-420 of 15 May 2001 Art. 82 Official Journal of 16 May 2001) (Order No. 2004-1173 of 4 November 2004 Art. 1 Official Journal of 5 November 2004)
Without prejudice to Articles L. 420-6, L. 462-8, L. 463-1 to L. 463-4, L. 463-6, L. 463-7 and L. 464-1 to L. 464-8, disputes relating to application of the rules laid down in Articles L. 420-1 to L. 420-5 and Articles 81 and 82 of the Founding Treaty of the European Community, and those in which the said provisions are invoked, are referred, as applicable, and without prejudice to the rules relating to division of jurisdiction between the different types of court, to the tribunaux de grande instance or the commercial courts, whose province and scope of jurisdiction are determined in a Conseil d'Etat decree. The said decree also determines the province and scope of jurisdiction of the court(s) of appeal which are competent to take cognisance of decisions pronounced by those jurisdictions.
TITLE III
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COMMERCIAL CODE Economic concentration Articles L430-1 to
L430-10
Article L430-1 (Act No 2001-420 of 15 May 2001, Article 86, Official Gazette of 16 May 2001)
I.- A concentration shall be deemed to arise where: 1° two or more previously independent undertakings merge; 2° one or more persons already holding control of at least one undertaking or when one or more undertakings
acquire control of all or part of one or more other undertakings, directly or indirectly, whether by the acquisition of a holding in the capital or by purchasing assets, a contract or any other means.
II.- The creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity shall constitute a concentration within the meaning of this article.
III.- For the purposes of applying this title, control shall be constituted by rights, contracts or any other means which, either or separately or in combination and having regard to the considerations of fact or law involved, confer all the possibility of exercising decisive influence on an undertaking, in particular by:
- ownership or the right to use all or part of the assets of an undertaking; - rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an
undertaking.
Article L430-2 (Act No 2001-420 of 15 May 2001 Article 87 Official Gazette of 16 May 2001) (Act No 2003-660 of 21 July 2003 Article 59 Official Gazette of 22 July 2003) (Ordinance No 2004-274 of 25 March 2004 Article 25 Official Gazette of 27 March 2004)
Any merger operation within the meaning of Article L 430-1 is subject to the provisions of Articles L. 430-3 et seq. of the present Title when the following three conditions are met:
- the combined aggregate worldwide turnover exclusive of tax of all of the companies or of all of the natural persons or legal entities involved in the merger is greater than 150 million euros;
- the combined aggregate turnover exclusive of tax achieved in France by at least two of the companies or groups of natural persons or legal entities concerned is greater than 50 million euros;
- the operation does not come within the scope of Council Regulation No. 4064/89 (EEC) of 21 December 1989 relating to control of concentrations between undertakings.
However, a concentration which comes within the scope of the aforementioned regulation and which has been referred, totally or partially, to the national legislation, is subject, within the limits of that referral, to the provisions of the present Article.
In the overseas departments, when a concentration within the meaning of Article 430-1 has the effect of taking either the selling space, as defined in Article L. 720-4, above the threshold set in that same Article, or the market share, expressed as turnover, of the companies subject to the provisions of that same Article, above 25%, the minister may, within three months of the operation being effectively concluded, make it subject to the procedure provided for in Articles L. 430-3 et seq. The provisions of Article L. 430-4 are not applicable to such operations, however.
Article L430-3 (Act No 2001-420 of 15 May 2001, Article 88, Official Gazette of 16 May 2001) (Act No 2004-1343 of 9 December 2004, Article 83, Official Gazette of 10 December 2004)
The concentrationshall be notified must be notified to the minister of the Economy prior to its completion. This notification shall be made when the party(ies) concerned can demonstrate a good faith intention to conclude an agreement, and particularly when they have signed an intended agreement, a letter of intent or, in the case of a public bid, when they have publicly announced an intention to make such a bid. Referral by the Commission of the European Communities shall be valid as notification.
The notification shall be submitted by the natural or legal persons acquiring control of all or part of an undertaking or, in the event of a merger or creation of a common undertaking, byall the parties concerned which must therefore make the notification jointly. The contents of the notification file shall be determined by decree.
Upon receipt of the notification of an operation or upon a global or partial referral of a Community-wideoperation, a communiqué shall be published by the Minister of the Economy in accordance with the procedures determined by decree.
On receipt of the notification file, the minister shall send a copy of this to the Council on Competition.
Article L430-4 (Act No 2001-420 of 15 May 2001, Article 89, Official Gazette of 16 May 2001)
A concentration operation cannot be carried through until after the agreement of the Minister of the Economy and, where applicable, of the minister responsible for the economic sector concerned.
In the event of a duly justified special need, the notifying parties may ask the Minister of the Economy for an derogation allowing them to carry through all or part of the concentration without waiting for the decision referred to in the first paragraph and without prejudice to that decision.
Article L430-5 (Act No 2001-420 of 15 May 2001, Article 90, Official Gazette of 16 May 2001)
I.- The Minister of the Economy shall decide on the concentration within five weeks from the date of reception of the
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II.- The parties to the concentration may commit themselves to taking measures aimed in particular at remedying, if applicable, the anti-competitive effects of the concentration either on the occasion of the notification or at any time before the expiration of the five-week period from the date of receipt of the complete notification, as long as the decision set forth by I has not beendelivered.
If the Minister receive commitments more than two weeks after the complete notification of the concentration, the period indicated in I shall expire three weeks after the date of receipt of these undertakings by the Minister of the Economy.
III.- The Minister of the Economy may: - either find, in a reasoned decision, that the concentration notified thereto does not fall within the scope defined by
Articles L.430-1 and L.430-2; - or authorise the concentration, possibly by subordinating this authorisation, in a reasoned decision, to the actual
implementation of the commitments made by the parties. However, if the Minister considers that the concentration is likely to adversely affect competition and that the
commitments made are not sufficient to remedy this, he shall refer the matter to the Council on Competition for an opinion.
IV.- If the Minister does not take any of the three decisions specified by III within the period indicated in I, possibly extended pursuant to II, the concentration shall be deemed to have been authorised.
Article L430-7 (Act No 2001-420 of 15 May 2001, Article 92, Official Gazette of 16 May 2001)
I.- When the Council on Competition has been referred to, the concentration shall be decided on within four weeks from the submission of the Council's opinion to the Minister of the Economy.
II.- After having read the Council on Competition's opinion, the parties may propose undertakings likely to remedy the anti-competitive effects of the concentration before the end of a four-week period from the date of submission of the opinion to the minister, unless the concentration has already been decided on as specified by I.
If the undertakings are sent to the minister more than one week after the date of submission of the opinion to the minister, the period referred to in I shall expire three weeks after the date of receipt of these undertakings by the minister.
III.- The Minister of the Economy and, if applicable, the minister responsible for the economic sector concerned may, in a reasoned decision:
- either prohibit the concentration and order the parties, if applicable, to adopt any measures likely to re-establish sufficient competition;
- or authorise the concentration by ordering the parties to adopt any measures likely to ensure sufficient competition or obliging them to observe requirements likely to ensure a sufficient contribution to economic and social progress to compensate for the adverse effects on competition.
The orders and requirements specified by the above two paragraphs shall be imposed whatever the contractual clauses which may be concluded by the parties.
The draft decision shall be sent to the interested parties which shall have a period for presenting their observations. IV.- If the Minister of the Economy and the minister responsible for the economic sector concerned do not intend to
take either of the two decisions specified by III, the Minister of the Economy shall authorise the concentration in a reasoned decision. The authorisation may be subordinated to the actual implementation of the undertakings made by the notifying parties.
V.- If none of the three decisions specified by III and IV has been taken within the period indicated in I, possibly extended pursuant to II, the concentration shall be deemed to have been authorised.
Article L430-8 (Act No 2001-420 of 15 May 2001, Article 92, Official Gazette of 16 May 2001)
I.- If a concentration has been carried out without being notified, the Minister of the Economy may impose, on the persons on whom the responsibility for notification is incumbent, a financial penalty whose maximum amount shall be, for legal persons, 5% of their pre-tax turnover made in France during the last closed financial year, plus, if applicable, the turnover which the acquired party made in France during the same period, and, for natural persons, 1.5 million euro.
In addition, the Minister shall enjoin the parties, subject to a penalty, to notify the concentration, otherwise the situation must restored as it prevailed prior to the concentration. The Minister may also refer to the Council on Competition without waiting for the notification. The procedure specified by Articles L.430-5 to L.430-7 shall then apply.
II.- If a notified concentration not benefiting from the exemption specified by the second paragraph of Article L.430-4 has been carried out before the decision specified by the first paragraph of the same article has been given, the Minister of the Economy may impose on the notifying persons a financial penalty which may not exceed the amount defined in I.
III.- In the event of an omission or incorrect declaration in a notification, the Minister of the Economy may impose on the notifying persons a financial penalty which may not exceed the amount defined in I.
This penalty may be accompanied by the withdrawal of the decision authorising the concentration. Unless the situation is returned to the state prevailing prior to the concentration, the parties shall then be required to notify the concentration again, within one month from the withdrawal of the decision, otherwise they will incur the penalties specified by I.
IV.- If it is considered that the parties have not fulfilled an order, requirement or commitment within the fixed periods, the Minister of the Economy may refer to the Council on Competition for an opinion.
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COMMERCIAL CODE If the Council on Competition's opinion indicates non-fulfilment, the Minister of the Economy and, if applicable, the
minister responsible for the economic sector concerned may: 1° Withdraw the decision authorising the concentration. Unless the situation is returned to the state prevailing prior
to the concentration, the parties shall be required to notify the concentration again, within one month from the withdrawal of the decision, otherwise they will incur the penalties specified by I;
2° Enjoin the parties on whom the unfulfilled obligation was incumbent, subject to a penalty, to fulfil, within a period which they shall fix, the orders, requirements or commitments.
In addition, the Minister of the Economy may impose on the persons on whom the unfulfilled obligation was incumbent a financial penalty which may not exceed the amount defined in I.
Article L430-9 (Act No 2001-420 of 15 May 2001, Article 91, Official Gazette of 16 May 2001)
The Council on Competition may, in the event of the abuse of a dominant position or a state of economic dependence, ask the Minister of the Economy toenjoin, by a reasoned order, jointly with the minister responsible for the sector, the undertaking or group of undertakings in question to amend, supplement or cancel, within a specified period, all agreements and all acts by which the concentration of economic power allowing the abuse has been carried out, even if these acts have been subject to the procedure specified by this title.
Article L430-10 (Act No 2001-420 of 15 May 2001, Article 93, Official Gazette of 16 May 2001)
I.- The decisions adopted pursuant to Articles L.430-5 to L.430-8 shall be made public, if applicable accompanied by the Council on Competition's opinion, according to the terms defined by decree.
II.- When the Minister of the Economy questions third parties on the subject of the concentration, its effects and the commitments proposed by the parties and makes public his decision in accordance with the conditions specified by I, he shall take account of the legitimate interest of the notifying parties or the persons cited that their business secrets are not disclosed.
TITLE IV Transparency, restrictive competitive practices and other prohibited practices Articles L441-1 to
L443-1
PRELIMINARY CHAPTER General provisions
CHAPTER I Transparency Articles L441-1 to
L441-5
Article L441-1 (Act No. 2001-1168 of 11 December 2001 Art. 13 IV 1 Official Journal of 12 December 2001)
The rules relating to the conditions of sale to the consumer are determined in Article L113-3 of the Consumer Code reproduced hereunder:
"Art. L113-3. - Any seller of products or any service provider shall, by means of marking, labelling, posters or any other suitable means, inform the consumer of the prices, limitations, if any, contractual liability and special conditions of sale pursuant to the conditions laid down in orders of the Finance Minister issued after consultation with the National Consumer Council.
This provision applies to all the activities referred to in the last paragraph of Article L113-2. The rules relating to the obligation for credit institutions and the organisations referred to in Article L518-1 of the
Monetary and Financial Code to provide information are determined in I and II of Article L312-1-1 of that same code."
Article L441-2 (Act No. 2001-420 of 15 May 2001 Art. 49 Official Journal of 16 May 2001) (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Act No. 2005-157 of 23 February 2005 Art. 32 Official Journal of 24 February 2005)
Any advertising meant for the consumer displayed on any medium or visible from outside the place of sale which mentions a price reduction or a promotional price on perishable foodstuffs must indicate the nature and origin of the product(s) offered and the period during which the advertiser's offer shall remain valid. The reference to the origin shall be written in characters of the size used to indicate the price.
When such promotional campaigns are likely, on account of their scale or their frequency, to disrupt the markets, an interdepartmental order or, failing this, a prefectorial order, shall determine their frequency and duration for the products concerned.
The price of a fresh fruit or vegetable covered by a transfer price agreement between the supplier and its customer may be advertised away from the place of sale for a maximum period of seventy-two hours immediately preceding the day on which it is first applied and for a period not exceeding five days thereafter.
In all other cases, any price of a fresh fruit or vegetable advertised away from the place of sale, regardless of its origin, must be covered by an interdepartmental order for a renewable term of one year entered into under the provisions of Article L632-1 of the Rural Code. The said agreement shall specify the periods during which such
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The said agreement may be extended under the provisions of Articles L632-3 and L632-4 of that same code. The provisions of the three preceding paragraphs do not apply to fresh fruits and vegetables of species not
produced in Metropolitan France. Any violation of the provisions of the above paragraphs incurs a fine of 15,000 euros. Cessation of advertising which does not comply with the provisions of the present article may be ordered as
provided for in Article L121-3 of the Consumer Code.
Article L441-2-1 (Act No. 2005-157 of 23 February 2005 Art. 33 Official Journal of 24 February 2005) (Act No. 2006-11 of 5 January 2006 Art. 53 III Official Journal of 6 January 2006)
For agricultural produce which is perishable or derived from short production cycles, live animals, carcasses and fishing and fish farming products indicated on a list compiled by decree, a distributor or service provider may only have the benefit of discounts, reductions and rebates or be remunerated for commercial cooperation services if these are provided for in a written contract relating to the sale of such products by the supplier.
The said contract shall contain clauses relating to commitments regarding volumes, the method of price calculation based on volumes and the quality of the products and services concerned, and price setting.
When a standard contract for the activities referred to in the first paragraph is included in an interdepartmental order adopted by the recognised inter-branch organisation for the product concerned and extended pursuant to the provisions of Articles L632-3 and L632-4 of the Rural Code, the contract referred to in the first paragraph must conform to that standard contract. The said standard contract shall, inter alia, include standard clauses relating to the commitments, the method of price calculation referred to in the second paragraph, the delivery schedules, the term of the contract and the floor price principle, the content of the said standard clauses is decided through commercial negotiations between the contracting parties.
Any violation of the provisions of the present article incurs a fine of 15,000 euros.
Article L441-3 (Act No 2001-420 of 15 May 2001, Article 53 I, Official Gazette of 16 May 2001)
All purchases of products or all provisions of services for a professional activity must be covered by an invoice. The seller shall be required to raise the invoice when the sale is made or when the service is provided. The
purchaser must demand this. The invoice must be prepared in duplicate. The seller and purchaser shall each keep one original.
The invoice must indicate the names of the parties and their addresses, the date of the sale or service provision, the quantity, precise description and the unit price excluding VAT of the products sold and services provided and also any price reduction applying on the date of the sale or provision of services and directly linked to this sale or service provision, excluding discounts not specified on the invoice.
The invoice shall also indicate the date when payment must be made. It shall specify the discount conditions applying in the event of payment on a date prior to that resulting from the application of the general conditions of sale and the rate of the penalties due from the day after the payment date entered on the invoice. Payment shall be deemed to be made on the date when the funds are made available, by the client, to the beneficiary or the latter’s subrogate.
Article L441-4 Any breach of the provisions of Article L.441-3 shall be punished by a fine of 75,000 euros. The fine may be increased to 50% of the amount invoiced or that which should have been invoiced.
Article L441-5 Legal persons may be declared criminally liable in accordance with the conditions specified by Article 121-2 of the
Penal Code for the breach specified by Article L.441-4. The penalties incurred by legal persons shall be: 1° The fine according to the terms specified by Article 131-38 of the Penal Code; 2° The penalty of exclusion from the public markets for a maximum period of five years, pursuant to 5° of Article
131-39 of the same code.
CHAPTER II Competitive restrictive practices Articles L442-1 to
L442-10
Article L442-1 (Law No 2001-1168 of 11 December 2001 Article 13 IV (2) Official Gazette of 12 December 2001) (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The rules relating to sales or services with premiums, refusals to sell a product or to provide a service, and supplies effected in batches or imposed quantities are set out in Articles L. 121-35 and L. 122-1 of the Consumer Code reproduced below:
"Article L. 121-35. - Any sale or proposed sale of products or goods and any provision or proposed provision of a service made to consumers which gives entitlement, free of charge, immediately or eventually, to a premium consisting of products, goods or services, is prohibited unless they are identical to those provided.
This provision does not apply to petty items or services of low value or to samples. For the lending institutions and other institutions referred to in Article L. 518-1 of the Monetary and Financial Code,
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COMMERCIAL CODE the rules relating to sales with premiums are set out in subparagraph 2 (I) of Article L. 312-1-2 of that same code."
"Article L. 122-1. - Refusing to sell a product or to provide a service to a consumer without a valid reason, or making the sale of a product conditional upon the purchase of an imposed quantity or the concomitant purchase of another product or a service, or making the provision of a service conditional upon the provision of another service or the purchase of a product is prohibited.
For the lending institutions and other institutions referred to in Article L. 518-1 of the Monetary and Financial Code, the rules relating to conditional sales are set out in subparagraph 1 (I) of Article L. 312-1-2 of that same code."
Article L442-3 Legal persons may be declared criminally liable, in accordance with the conditions specified by Article 121-2 of the
Penal Code, for the offence specified by Article L.442-2. The penalties incurred by legal persons shall be: 1° The fine according to the terms specified by Article 131-38 of the Penal Code; 2° The penalty referred to in 9° of Article 131-39 of the same code. The cessation of the advertising may be ordered in accordance with the conditions specified by Article L.121-3 of
the Consumer Code.
Article L442-4 I.- The provisions of Article L.442-2 shall not apply: 1° To voluntary or forced sales caused by the cessation or change of commercial activity: a) To products whose sale has a marked seasonal nature, during the final period of the sale season and in the
interval between two sale seasons; b) To products which no longer respond to the general demand due to the development of fashion or the
emergence of technical improvements; c) To products, with identical characteristics, whose restocking has occurred at a lower price, with the actual
purchase price then being replaced by the price resulting from the new purchase invoice; d) To food products marketed in a shop with a sale area of less than 300 square metres and to non-food products
marketed in a shop with a sale area of less than 1 000 square metres, whose resale price is aligned with the price legally applied to the same products by another trader in the same area of activity;
2° Provided that the reduced price offer is not advertised in any way outside the place of sale, to perishable products from the moment when they are threatened by rapid deterioration.
II.- The exceptions specified by I shall not prevent the application of 2 of Article L.625-5 and 1 of Article L.626-2.
Article L442-5 If any person imposes, directly or indirectly, a minimum on the resale price of a product or good, on the price of a
service provision or on a trading margin, this shall be punished by a fine of 15,000 euros.
Article L442-7 No associations or cooperatives of undertakings or administrations may normally offer products for sale, sell these
or provide services if these activities are not specified by their articles of association.
Article L442-8 It is prohibited for any person to offer products for sale or to propose services by using, in accordance with irregular
conditions, the public property of the State, local authorities and their public establishments. Breaches of the ban specified by the above paragraph shall be investigated and recorded in accordance with the
conditions defined by Articles L.450-1 to L.450-3 and L.450-8. Agents may deposit, in the places which they determine and for a period which may not exceed one month, the
products offered for sale and the goods having allowed the sale of the products or the offer of services. The deposit shall give rise to the immediate establishment of an official record. This shall include an inventory of
the goods and commodities deposited and an indication of their value. It shall be notified within five days of its completion to the procureur de la République and to the interested party.
The court may order the confiscation of the products offered for sale and the goods having allowed the sale of the products or the offer of services. The court may order the perpetrator to pay to the Treasury a sum corresponding to the value of the products deposited, in cases where an attachment has not been carried out.
Article L442-9 (inserted by Act No. 2005-157 of 23 February 2005 Art. 34 I Official Journal of 24 February 2005)
The fact of any producer, trader, manufacturer or person recorded in the trade register applying or causing application of excessively low initial prices for products included in a list referred to in Article L441-2-1 of the present code during an economic crisis as defined in Article L611-4 of the Rural Code shall render the person responsible liable and compel him to make good the damage thus caused.
III and IV of Article L442-6 are applicable to the action covered by the present article.
Article L442-10 (inserted by Act No. 2005-882 of 2 August 2005 Art. 51 Official Journal of 3 August 2005)
I. - A contract through which a supplier makes a price commitment to a producer, trader, manufacturer or person recorded in the trade register via an on-line reverse auction is void if any of the following rules have not been respected:
1 Prior to the auction, the buyer or the person organising the auction on behalf of the buyer shall, in a transparent
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COMMERCIAL CODE and non-discriminatory fashion, inform all the approved prospective bidders of the determining factors of the products or services it wishes to acquire, its terms and conditions of purchase, its detailed selection criteria and the rules under which the auction shall take place;
2 Upon expiry of the auction period, the identity of the successful bidder shall be revealed to any other bidder who so requests. In the event of the presenter of the successful bid failing to perform, no party shall be required to take over the contract at the lowest price or the lowest bid.
II. - The buyer or the person organising the auction on behalf of the buyer shall create a record of the tendering process and retain it for one year. It shall be produced if any inquiry is conducted pursuant to Part V of the present Book.
III. - On-line reverse auctions organised by the buyer or its representative are prohibited for the agricultural products referred to in the first paragraph of Article L441-2-1 and for current consumption food products derived from the primary processing of such products.
IV. - Failure to respect the provisions of I to III shall render the person responsible liable and compel him to make good the damage thus caused. The provisions of III and IV of Article L442-6 are applicable to the transactions referred to in I to III of the present article.
CHAPTER III Other prohibited practices Article L443-1
Article L443-1 Subject to a fine of 75,000 euros, the payment time fixed by any producer, retailer or service provider may not
exceed: 1° Thirty days after the end of the ten-day period from delivery for purchases of perishable food products and frozen
or deep-frozen meat, deep-frozen fish, convenience foods and preserves made from perishable food products, with the exception of purchases of seasonal products made in the context of the “cultivation contracts” referred to in Articles L.326-1 to L.326-3 of the Rural Code;
2° Twenty days after the day of delivery for purchases of live cattle intended for consumption and fresh meat by-products;
3° Thirty days after the end of the month of delivery for purchases of alcoholic drinks subject to the consumer tax specified by Article 403 of the General Tax Code;
4° Failing multi-industry agreements concluded pursuant to Book VI of the Rural Code and made compulsory by regulation for all operators throughout mainland France with regard to payment times, seventy-five days after the day of delivery for purchases of alcoholic drinks subject to the transportation duties specified by Article 438 of the same code.
TITLE V Investigative powers Articles L450-1 to
L450-8
Article L450-1 (Act No. 2001-420 of 15 May 2001 Art. 81 I Official Journal of 16 May 2001) (Order No. 2004-1173 of 4 November 2004 Art. 2 Official Journal of 5 November 2004)
Officials duly authorised by the Minister for Economic Affairs may carry out the necessary inquiries pursuant to the provisions of the present Book.
The Competition Council's rapporteurs have the same powers in regard to cases referred to that Council. When investigations are carried out for or on behalf of a competition authority of another member state pursuant to
1 of Article 22 of Council Regulation No. 1/2003 relating to the implementation of the competition rules laid down in articles 81 and 82 of the Founding Treaty of the European Community, the Minister for Economic Affairs may authorise agents of that competition authority to assist the authorised officials referred to in the first paragraph or the rapporteurs referred to in the second paragraph with their investigations. The particulars of such assistance are determined in a Conseil d'Etat decree.
Category A officials of the Ministry of Economic Affairs who are specially authorised for such purposes by the Minister of Justice on a recommendation from the Minister for Economic Affairs may receive letters rogatory from investigating judges.
The authorised officials referred to in the present article may exercise the investigative powers conferred on them by the present article and the following articles throughout the national territory.
Article L450-2 The inquiries shall give rise to the establishment of official records and, if applicable, reports. The official records shall be sent to the competent authority. A duplicate of these shall be left with the interested
parties. These shall be authentic unless otherwise proven.
Article L450-3 (Act No 2001-420 of 15 May 2001, Article 76, Official Gazette of 16 May 2001)
The inquirers may access all premises, land or means of transport for professional use, request the notification of books, invoices and all other professional documents and obtain or take copies of these by any means and on all media and collect information and proof by means of summons or in situ.
They may ask the authority to which they are answerable to appoint an expert to conduct any necessary expert assessment involving all the parties.
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COMMERCIAL CODE Article L450-4 (Act No. 2001-420 of 15 May 2001 Art. 77 Official Journal of 16 May 2001) (Order No. 2004-1173 of 4 November 2004 Art. 3 Official Journal of 5 November 2004)
The investigating officials may conduct inspections at any premises and seize documents and any information medium only in the context of investigations requested by the European Commission, the Minister for Economic Affairs or the Competition Council's general rapporteur on the basis of a proposal from the rapporteur or judicial authorisation given by the freedoms and custody judge of the Tribunal de grande instance in whose jurisdiction the premises to be inspected are situated. They may also, in the same circumstances, place any commercial premises, documents and information media under seal for the duration of the inspection of those premises. When such premises come within the jurisdiction of several courts and simultaneous action must be taken in each of them, a single order may be issued by the presiding judge of one (1) of the courts.
The judge shall verify that the application for authorisation submitted to him is well-founded; the said application must contain all the elements of information held by the applicant which would justify an inspection. When the inspection is intended to enable the commission of violations of the provisions of Book IV of the present code to be established, the application for authorisation may contain only the evidence which gives grounds for suspecting the existence of the practices in respect of which proof is sought in that specific instance.
The inspection and seizure take place under the authority and control of the judge who authorised them. He shall designate one or more law enforcement officers to be present to provide assistance when such measures are enforced by effecting any necessary requisitions and to keep him informed of their progress. If they take place outside the jurisdiction of his own Tribunal de grande instance, he shall issue letters rogatory delegating such control to the presiding judge (1) of the Tribunal de grande instance in whose jurisdiction the inspection is carried out.
The judge may visit the premises during the inspection, and may decide to suspend or terminate it at any time. The order is served verbally and in situ at the time of the inspection on the occupant of the premises or his
representative, who is handed a true copy thereof against acknowledgement of receipt or a signature in the margin of the official record. In the absence of the occupant of the premises or his representative, the order is served by recorded-delivery registered mail after the inspection. Service is deemed to have been effected on the date shown on the confirmation of receipt.
The order referred to in the first paragraph of the present article shall be open to appeal on points of law only under the rules laid down by the Code of Criminal Procedure. Such appeals do not have suspensive effect.
The inspection, which shall not commence before 6.00 a.m. or after 9.00 p.m., is carried out in the presence of the occupant of the premises or his representative. If this proves impossible, the law enforcement officer shall enlist the services of two witnesses who are not under his authority, or that of the administration of the Directorate General for Competition, Consumer Affairs and the Prevention of Fraud, or that of the Competition Council.
Only the investigating officials, the occupant of the premises or his representative, as well as the law enforcement officer and, where applicable, the agents and other persons appointed by the European Commission, may take judicial notice of the documents and other items before their seizure.
The taking of inventories and placing of seals are carried out pursuant to Article 56 of the Code of Criminal Procedure.
The originals of the official record and the inventory are sent to the judge who ordered the inspection. The documents and other items seized are returned to the occupant of the premises within six months of the date
on which the Competition Council's decision becomes definitive. The occupant of the premises is given formal notice, by recorded-delivery registered mail, to come and collect them within two months. Upon expiry of that period, and failing any steps on his part, the documents and other items are returned to him at his own expense.
The inspection or seizure procedures may be the subject of an appeal to the judge who authorised them, lodged within two months of service of the relevant order for the persons occupying the premises where the said procedures took place, and, for other persons brought into the proceedings subsequently on account of items seized during those procedures, of the date on which they became aware of the existence of the said procedures and not later than the date of notification of the claims referred to in Article L. 463-2. The judge rules on such appeals through an order which shall be open to appeal on points of law only under the rules laid down by the Code of Criminal Procedure. Such appeals do not have suspensive effect.
(1) NB: Article 49 X 1 and 2 of Act No. 2000-516 of 15 June 2000, effective from 16 June 2002, amended Article 48 of Order No. 86-1243 of 1 December 1986 by substituting the words"freedoms and custody judge"for the words"presiding judge". The said Article 48 was repealed and codified by Order No. 2000-912 of 18 September 2000, thus becoming Article L. 450-4 of the Commercial Code.
Article L450-5 (Act No 2001-420 of 15 May 2001, Article 78, Official Gazette of 16 May 2001)
The general rapporteur of the Council on Competition shall be immediately informed of the start and end of the investigations referred to in Article L.450-4 when these have been carried out on the initiative of the Minister for Economic Affairs and when they relate to acts likely to come under Articles L.420-1 and L.420-2.
The general rapporteur may propose to the Council that it assumes jurisdiction of its own motion.
Article L450-6 (Act No 2001-420 of 15 May 2001, Article 80, Official Gazette of 16 May 2001)
The general rapporteur shall appoint, for the examination of each matter, one or more rapporteurs. At the general rapporteur’s request, the authority to which the agents referred to in Article L.450-1 are answerable shall appoint the
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COMMERCIAL CODE inquirers and have any inquiry which the rapporteur considers appropriate conducted immediately. The latter shall define the directions of the inquiry and shall be kept informed of its progress.
A decree shall specify the conditions in accordance with which, at the reasoned request of the chairman of the Council on Competition, the authority to which the agents referred to in Article L.450-1 are answerable shall provide, for a specified period, to the general rapporteur of the Council on Competition, the inquirers to conduct certain inquiries, in accordance with the directions defined by the rapporteurs.
Article L450-7 The inquirers may, without professional secrecy being raised against them, access any document or information
held by the services and establishments of the State and other public authorities.
Article L450-8 If anyone objects, in any way whatsoever, to the fulfilment of the duties with which the agents appointed by Article
L.450-1 and the rapporteurs of the Council on Competition are entrusted pursuant to this book, this shall be punished by a prison sentence of six months and fine of 7,500 euros.
TITLE VI Council on Competition Articles L461-1 to
L464-8
CHAPTER I Organisation Articles L461-1 to
L461-3
Article L461-1 I.- The Council on Competition shall consist of seventeen members appointed for a term of six years by a decree
adopted following the report of the Minister for Economic Affairs. II.- It shall be composed of: 1° Eight members or former members of the Conseil d'Etat, Cour de Cassation, Auditor-General’s department or
other administrative or ordinary courts; 2° Four persons chosen due to their competence in economic affairs or in competition and consumer affairs; 3° Five persons carrying out or having carried out their activities in the sectors of production, distribution, craftwork,
services or the professions. III.- The chairman and three vice-chairmen shall be appointed, with regard to three of them, from among the
members or former members of the Conseil d'Etat, Cour de Cassation or Auditor-General’s department, and with regard to one of them, from the categories of persons indicated in 2° and 3° of II.
IV.- The four persons specified by 2° of II shall be chosen from a list of eight names submitted by the eight members specified by 1° of II.
V.- Members of the Council on Competition may be reappointed.
Article L461-2 The chairman and vice-chairmen shall fulfil their duties on a full-time basis. They shall be subject to the
incompatibility rules specified for public positions. Any member of the Council who has not participated, without a valid reason, in three consecutive sessions or who
has not fulfilled the obligations specified by the two paragraphs below shall be declared by the minister to have automatically resigned. All members of the Council must inform the chairman of the interests which they hold or have just acquired and of the duties which they fulfil in an economic activity.
No Council member may participate in a matter in which they have an interest or in which they represent or have represented one of the interested parties.
The government commissioner to the Council shall be appointed by the Minister for Economic Affairs.
Article L461-3 (Act No. 2001-420 of 15 May 2001 Art. 65 Official Journal of 16 May 2001) (Amending Finance Act for 2001 No. 2001-1276 of 28 December 2001 Art. 85 Official Journal of 29 December 2001)
The council may meet in a plenary session, in sections, or as a permanent commission. The permanent commission is composed of the chairman and the three vice-chairmen.
In the event of a tied vote, the chairman of the meeting shall have a casting vote. The general rapporteur, the assistant general rapporteur(s) and the permanent rapporteurs are appointed by order
of the Finance Minister on a proposal from the chairman. The other rapporteurs are appointed by the chairman. The general rapporteur may delegate some or all of the duties conferred on him by Book IV of the present code to
one or more assistant general rapporteurs. The operating credits allocated to the Competition Council are charged to the budget of the Finance Minister. The
provisions of the Act of 10 August 1922 relating to the organisation of expenditure control do not apply to management thereof.
The chairman is the certifying officer for the council's income and expenditure.
CHAPTER II
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COMMERCIAL CODE Powers Articles L462-1 to
L462-9
Article L462-1 The Council on Competition may be consulted by the parliamentary committees with regard to bills and any issues
relating to competition. It shall give its opinion on any competition issue at the request of the government. It may also give its opinion on
the same issues at the request of the territorial authorities, professional associations and trade unions, approved consumer organisations, chambers of agriculture, chambers of trade or chambers of trade and industry, with regard to the interests for which these are responsible.
Article L462-2 The Council must be consulted by the government on any draft regulation establishing a new system having the
direct effect of: 1° Subjecting the practice of a profession or the access to a market to quantitative restrictions; 2° Establishing exclusive rights in certain areas; 3° Imposing uniform practices in terms of prices or conditions of sale.
Article L462-3 (Order No. 2004-1173 of 4 November 2004 Art. 4 Official Journal of 5 November 2004)
The courts may consult the council regarding the anti-competitive practices described in Articles L. 420-1, L. 420-2 and L. 420-5 hereof and Articles 81 and 82 of the Founding Treaty of the European Community when they are raised in the cases referred to them. It may issue an opinion only after a procedure in which all parties were heard is concluded. If it already has information gathered during an earlier procedure, however, it may issue its opinion without implementing the procedure envisaged in the present text.
The prescription period is suspended, where applicable, when the council is consulted. The council's opinion may be published after the dismissal or judgement.
Article L462-4 The Council may be consulted by the Minister for Economic Affairs on any concentration project or any
concentration likely to adversely affect competition in accordance with the conditions specified by Title III above.
Article L462-5 The Council on Competition may be referred to by the Minister for Economic Affairs on any practice mentioned in
Articles L.420-1, L.420-2 and L.420-5. It may assume jurisdiction of its own motion or be referred to by undertakings or, for any matter relating to the interests for which they are responsible, by the bodies indicated in the second paragraph of Article L.462-1.
Article L462-6 (Order No. 2004-1173 of 4 November 2004 Art. 5 Official Journal of 5 November 2004)
The Competition Council considers whether the practices referred to it come within the scope of Articles L. 420-1, L. 420-2 or L. 420-5 or may be justified by virtue of Article L. 420-4. It imposes sanctions and orders where appropriate.
When it considers that the facts warrant application of Article L. 420-6, it refers the case to the public prosecutor. Such referrals suspend the prescription of criminal prosecutions.
The prescription is also suspended when the facts raised in the referral are the subject of an action seeking their investigation, establishment or punishment instituted by the European Commission or by a competition authority of another European Community member state.
Article L462-7 (Order No. 2004-1173 of 4 November 2004 Art. 6 Official Journal of 5 November 2004)
Facts dating back more than five years may not be referred to the council if no attempt has been made to investigate, establish or punish them.
Article L462-8 (Act No. 2001-420 of 15 May 2001 Art. 74 Official Journal of 16 May 2001) (Order No. 2004-1173 of 4 November 2004 Art. 7 Official Journal of 5 November 2004)
In a reasoned decision, the Competition Council may declare the referral inadmissible for want of a legal interest or quality to act on the part of the referrer, or if the facts are prescribed within the meaning of Article L. 462-7, or if it considers that the facts invoked are beyond its scope.
It may also reject the referral via a reasoned decision when it considers that the facts invoked are not supported by sufficiently probative elements.
It may also reject the referral by the same means if it is informed that another national competition authority of a European Community member state or the European Commission has dealt with the same facts under the provisions laid down in articles 81 and 82 of the Founding Treaty of the European Community.
It may also reject the referral by the same means or suspend the procedure if it is informed that another national competition authority of a European Community member state is dealing with the same facts under the provisions laid down in articles 81 and 82 of the Founding Treaty of the European Community. When such information is received by the rapporteur at the preparatory stage, the general rapporteur may suspend the referral.
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COMMERCIAL CODE In the same circumstances, the Competition Council may also decide to close a case it had routinely taken up. Withdrawals by the parties or removals from the courts at the behest of the European Commission are duly
recorded in a decision of the chairman of the Competition Council or a vice-chairman designated by him.
Article L462-9 (Act No. 2001-420 of 15 May 2001 Art. 83 Official Journal of 16 May 2001) (Order No. 2004-1173 of 4 November 2004 Art. 8 Official Journal of 5 November 2004)
I. - The Competition Council may, with regard to matters within its jurisdiction, and after giving the Minister for Economic Affairs prior notice thereof, send information or documents it holds, or which it gathers at their request, to the Commission of the European Communities or to the authorities of other States which exercise similar powers, subject to reciprocity, and provided that the competent foreign authority is subject to professional secrecy as rigorous as that required in France.
The Competition Council may, applying the conditions, procedures and sanctions specified for the performance of its duties, conduct, or ask the Minister for Economic Affairs to conduct, investigations at the request of foreign authorities which exercise similar powers, subject to reciprocity.
The professional secrecy obligation shall not impede communication by the competition authorities of the information or documents they hold, or which they gather at their request, to the Commission of the European Communities and the authorities of other States which exercise similar powers and are bound by the same professional secrecy obligations.
Assistance requested by a foreign authority exercising similar powers which involves investigations or the transmission of information held or gathered by the Competition Council is refused if acceding to the request would be likely to jeopardise French sovereignty, security or public order, or if criminal proceedings have already been instituted in France on the basis of the same facts and against the same persons, or if those persons have already been penalised by a final decision for the same facts.
The competition authorities, with regard to matters within their respective jurisdictions, may use information or documents sent to them under the same conditions by the Commission of the European Communities or the authorities of other member states which exercise similar powers.
For implementation of the present article, the council may enter into agreements which organise its relations with foreign authorities exercising similar powers. The said agreements are approved by the council as determined in Article L. 463-7. They are published in the Official Journal.
II. - In implementing the competition rules laid down in articles 81 and 82 of the Founding Treaty of the European Community, the competition authorities apply the provisions of Council Regulation No. 1/2003 relating to the implementation of the competition rules laid down in articles 81 and 82 of the Founding Treaty of the European Community, with the exception of the provisions of the first five paragraphs of I of the present article.
To implement the provisions of 4 of Article 11 of the said regulation, the Competition Council shall send the European Commission a summary of the case and a document setting out the solution envisaged, which may be a notification of claims or the report referred to in Article L. 463-2. It may make those same documents available to the competition authorities of the European Community member states.
CHAPTER III Procedure Articles L463-1 to
L463-8
Article L463-1 (Order No. 2004-1173 of 4 November 2004 Art. 9 I Official Journal of 5 November 2004)
All the parties are fully heard at the preparatory stage and in the proceedings before the Competition Council, without prejudice to the provisions of Article L. 463-4.
Article L463-2 (Act No. 2001-420 of 15 May 2001 Art. 68 I and II Official Journal of 16 May 2001) (Order No. 2004-1173 of 4 November 2004 Art. 9 II Official Journal of 5 November 2004)
Without prejudice to the measures referred to in Article L. 464-1, the general rapporteur sends the claims to the parties concerned and to the government representative, who may consult the file, without prejudice to the provisions of Article L. 463-4, and present their observations within two months.
The report is then sent to the parties, to the government representative and to the ministers concerned. It is accompanied by the documents which the rapporteur is relying on and the observations, if any, made by the parties concerned.
The parties have a period of two months in which to submit their observations in reply, which may be consulted by the persons referred to in the previous paragraph during the fifteen days preceding the sitting.
When exceptional circumstances so warrant, the chairman of the council may, through an unappealable decision, grant the parties a further period of one month to prepare their case and submit their observations.
Article L463-3 (Act No 2001-420 of 15 May 2001, Article 69, Official Gazette of 16 May 2001)
The chairman of the Council on Competition or a vice-chairman delegated thereby may, after notification of the complaints to the interested parties, decide that the matter shall be decided by the Council without the prior preparation of a report. This decision shall be notified to the parties.
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COMMERCIAL CODE Article L463-4 (Act No. 2001-420 of 15 May 2001 Art. 70 Official Journal of 16 May 2001) (Order No. 2004-1173 of 4 November 2004 Art. 9 III Official Journal of 5 November 2004)
Save for cases in which discovery or consultation of such documents is necessary for the proceedings or for exercise of the rights of the party or parties involved, the chairman of the Competition Council, or a vice-chairman delegated by him, may refuse discovery or consultation of documents or certain elements contained in them which affect business secrecy. Either the documents concerned are removed from the file, or certain references therein are struck out.
In cases in which discovery or consultation of such documents, despite business secrecy being affected, is necessary for the proceedings or for exercise of the rights of one or more of the parties, they are placed in a confidential appendix to the file and disclosed only to the government representative and to the party or parties involved who need the documents or elements in order to exercise their rights.
A Conseil d'Etat decree lays down the present article's implementing regulations, as necessary.
Article L463-5 The courts investigating and hearing the case may notify to the Council on Competition, at its request, the inquiry
reports or official records having a direct link with the facts referred to the Council.
Article L463-6 The disclosure by one of the parties of information regarding another party or a third party, which it could only have
known as a result of the notifications or consultations which have occurred, shall be punished by the penalties specified by Article 226-13 of the Penal Code.
Article L463-7 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The meetings of the Council for Competition are not public. Only the parties and the Government Commissioner can attend them. The parties may ask to be heard by the Council and can arrange to be represented or assisted.
The Council for Competition may hear any person whose evidence it considers to be material to its enquiry. The general reporter, or the assistant general reporter(s) and the Government Commissioner may present their
observations. The general reporter, or the assistant general reporter(s) and the reporter attend the private sitting, but are entitled
to speak and vote only when the council is ruling on practices referred to it pursuant to Article L. 462-5.
Article L463-8 (inserted by Act No 2001-420 of 15 May 2001, Article 71, Official Gazette of 16 May 2001)
The general rapporteur may decide to call experts in the event of a request made at any time in the preparatory stages by the rapporteur or a party. This decision shall not be open to any appeal.
The tasks and time given to the expert shall be specified by the decision appointing the latter. The expert assessment operations shall involve all the parties.
The financing of the expert assessment shall be the responsibility of the party requesting this or the Council where this is ordered at the request of the rapporteur. However, the Council may, in its decision on the merits, allocate the final charge to the party or parties penalised, in the proportions which it determines.
CHAPTER IV Decisions and appeals Articles L464-1 to
L464-8
Article L464-1 (Act No 2001-420 of 15 May 2001, Article 72, Official Gazette of 16 May 2001)
The Council on Competition may, at the request of the Minister for Economic Affairs, the persons indicated in the last paragraph of Article L.462-1 or the undertakings, and after having heard the parties in question and the government commissioner, adopt the precautionary measures which are requested thereof or which seem necessary thereto.
These measures may be applied only if the reported practice seriously and immediately undermines the general economy, the economy of the sector concerned, the interest of consumers or the complainant undertaking.
They may include the suspension of the practice concerned and an order to the parties to return the situation to the prior state. They must be strictly linked to what is necessary to tackle the emergency.
The precautionary measures shall be published in the Official Gazette on Competition, Consumer Affairs and the Prevention of Fraud.
Article L464-2 (Act No. 2001-420 of 15 May 2001 Art. 73 Official Journal of 16 May 2001) (Order No. 2004-1173 of 4 November 2004 Art. 10 Official Journal of 5 November 2004)
I. - The Competition Council may order the companies or bodies concerned to cease their non-competitive practices within a specified period or may impose special conditions. It may also accept commitments from them to discontinue the non-competitive practices.
It may impose a financial penalty applicable either immediately or in the event of non-compliance with the conditions imposed or the commitments accepted.
The financial penalties are proportionate to the seriousness of the charges brought, to the scale of the damage
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COMMERCIAL CODE caused to the economy, to the financial situation of the body or company penalised or to the group to which the latter belongs, and to the likelihood of any repetition of practices prohibited by the present Part. They are individually determined for each company or body penalised, with reasons given for each penalty.
If the offender is not a company, the maximum amount of the penalty is 3 million euros. The maximum amount of the penalty for a company is 10% of the highest worldwide turnover, net of tax, achieved in one of the financial years ended after the financial year preceding that in which the practices were implemented. If the accounts of the company concerned have been consolidated or combined by virtue of the texts applicable to its legal form, the turnover taken into account is that shown in the consolidated or combined accounts of the consolidating or combining company.
The Competition Council may order that its decision, or an abstract thereof, be posted on the court notice-board in the manner which it stipulates. It may also order that the decision, or the abstract thereof, be inserted in the report on the activities for the financial year drawn up by the company's executives, board of directors or executive board. The costs are borne by the party concerned.
II. - The Competition Council may impose coercive fines on the parties concerned of not more than 5% of the average daily turnover, per day of delay, with effect from the date it determines, to compel them to:
a) Comply with a decision which enjoined them to cease the non-competitive practices or imposed special conditions, or to implement a decision making a commitment compulsory by virtue of I;
b) Implement the measures imposed pursuant to Article L. 464-1. The turnover taken into account is calculated on the basis of the company's accounts for the last financial year
ended as of the date of the decision. The amount of the coercive fine is definitively set by the Competition Council. III. - When a body or a company does not contest the truth of the allegations made against it and undertakes to alter
its conduct in the future, the general rapporteur may recommend that the Competition Council, which hears the parties and the government representative without a report being drawn up in advance, impose the financial penalty referred to in I and take into account the fact that no challenge was raised. In such cases, the maximum amount of the penalty incurred is reduced by half.
IV. - A total or partial exemption from financial penalties may be granted to a company or a body which, along with others, has implemented a practice prohibited by the provisions of Article L. 420-1, if it has helped to establish the existence of the prohibited practice and to identify its perpetrators by providing information which the council or the administration did not have access to beforehand. To that end, subsequent to the initiative taken by that company or body, the Competition Council, at the request of the general rapporteur or the Minister for Economic Affairs, adopts a plea for leniency which stipulates the conditions the envisaged exemption is subject to after the government representative and the company or body concerned have submitted their observations; the decision is conveyed to the company or the body and the minister, and is not published. When a decision is taken pursuant to I of the present article, the council may, if the conditions stipulated in the plea for leniency have been complied with, grant an exemption from the financial penalties proportionate to the contribution made to proving the existence of the offence.
Article L464-3 (Order No. 2004-1173 of 4 November 2004 Art. 11 Official Journal of 5 November 2004)
If the measures, orders or commitments referred to in Articles L. 464-1 and L. 464-2 are not complied with, the council may impose a financial penalty within the limits set in Article L. 464-2.
Article L464-4 (Order No. 2004-1173 of 4 November 2004 Art. 12 Official Journal of 5 November 2004)
The financial penalties and coercive fines are recovered as State debts separate from taxes and state property.
Article L464-5 (Act No 2001-420 of 15 May 2001, Article 69, Official Gazette of 16 May 2001)
The Council, when it rules according to the simplified procedure specified by Article L.463-3, may order the measures specified by I of Article L.464-2. However, the financial penalty may not exceed 750 000 euro for each of the perpetrators of prohibited practices.
Article L464-6 (Act No. 2001-420 of 15 May 2001 Art. 75 Official Journal of 16 May 2001) (Order No. 2004-274 of 25 March 2004 Art. 24 I Official Journal of 27 March 2004)
When no practice likely to jeopardise competition on the market is established, the Competition Council may, after the initiator of the referral and the government representative have been given access to the file and have made their observations, decide that there are no grounds for continuing the proceedings. Such decisions are explained.
Article L464-6-1 (inserted by Order No. 2004-274 of 25 March 2004 Art. 24 II Official Journal of 27 March 2004)
The Competition Council may also decide, as provided for in Article L. 464-6, that there are no grounds for continuing the proceedings when the practices referred to in Article L. 420-1 do not relate to contracts entered into pursuant to the Public Procurement Code and the cumulative market share of the companies or bodies which are parties to the challenged agreement or practice does not exceed either:
a) 10% of one of the markets affected by the agreement or practice when it relates to an agreement or practice between companies or bodies which are existing or potential competitors on one of the markets concerned;
b) or 15% of one of the markets affected by the agreement or practice when it relates to an agreement or practice between companies or bodies which are not existing or potential competitors on one of the markets concerned.
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COMMERCIAL CODE Article L464-6-2 (inserted by Order No. 2004-274 of 25 March 2004 Art. 24 II Official Journal of 27 March 2004)
However, the provisions of Article L. 464-6-1 do not apply to agreements and practices which contain any of the following blatant anti-competitive restrictions:
a) Restrictions which, directly or indirectly, individually or together with other factors over which the parties may have influence, are intended to fix selling prices, limit production or sales, or divide up markets or customers;
b) Restrictions on unsolicited sales to end users made by a distributor outside its contractual territory; c) Restrictions on sales by the members of a selective distribution network operating as retailers on the market,
regardless of the possibility of forbidding a member of the distribution network from working from an unauthorised place of business;
d) Restrictions applied to cross-deliveries between distributors within a selective distribution network, including those between distributors operating at different commercial phases.
Article L464-7 The Council’s decision adopted pursuant to Article L.464-1 may be open to an application to set this aside or alter
this by the parties in question and the government commissioner before the Paris Cour d'appel at most ten days after its notification. The Court shall rule within one month of the appeal.
The appeal shall not be suspensive. However, the first president of the Paris Cour d'appel may order that the enforcement of the precautionary measures be deferred if these are likely to lead to manifestly excessive consequences or if new facts of exceptional gravity have emerged subsequent to their notification.
Article L464-8 (Act No. 2001-1168 of 11 December 2001 Art. 33 IV Official Journal of 12 December 2001) (Order No. 2004-274 of 25 March 2004 Art. 24 III Official Journal of 27 March 2004) (Order No. 2004-1173 of 4 November 2004 Art. 13 Official Journal of 5 November 2004) (Act No. 2004-1343 of 9 December 2004 Art. 83 II Official Journal of 10 December 2004)
The decisions of the Competition Council referred to in Articles L. 462-8, L. 464-2, L. 464-3, L. 464-5, L. 464-6 and L. 464-6-1 are notified to the parties involved and to the Minister for Economic Affairs, who then have a period of one month in which to make an application for cancellation or reversal to the Paris Court of Appeal.
The decisions are published in the Official Gazette for Competition, Consumer Affairs and the Prevention of Fraud. The Minister for Economic Affairs oversees their implementation. The decisions may provide for limited publication to take account of the parties' legitimate interest in not having their business secrets divulged.
The appeal does not have suspensive effect. However, the presiding judge of the Paris Court of Appeal may order that enforcement of the decision be deferred if it is likely to have manifestly excessive consequences or if exceptionally serious new facts have emerged since its notification.
Any appeal on points of law lodged against the court order must be brought within one month of the said notification.
The Minister for Economic Affairs may, in all cases, enter an appeal on points of law against an order of the Paris Court of Appeal.
TITLE VII Sundry provisions Articles L470-1 to
L470-8
Article L470-1 The court may order legal persons jointly and severally to pay the fines ordered against their directors pursuant to
the provisions of this book and the texts adopted in application thereof.
Article L470-2 In the event of sentencing under Articles L.441-3, L.441-4, L.441-5, L.442-2, L.442-3, L.442-5 and L.443-1, the court
may order that its decision be posted on a notice-board or circulated in accordance with the conditions specified by Article 131-10 of the Penal Code.
Article L470-3 When a person having been sentenced less than two years previously for one of the offences defined by Articles
L.441-2, L.441-3, L.441-4, L.441-5, L.441-6, L.442-2, L.442-3, L.442-4, L.442-5 and L.443-1 commits the same offence, the maximum fine incurred shall be doubled.
Article L470-4 When a legal person having been sentenced less than two years previously for one of the offences defined by
Articles L.441-3, L.441-4, L.441-5, L.441-6, L.442-2, L.442-3 and L.442-4 commits the same offence, the maximum rate of the fine incurred shall be equal to ten times that applicable to natural persons for this offence.
Article L470-5 In order to apply the provisions of this book, the Minister for Economic Affairs or his representative may, before the
civil or criminal jurisdictions, file pleadings and develop these orally in the hearing. The minister may also produce the inquiry reports and official records.
Article L470-6
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COMMERCIAL CODE (Act No. 2001-420 of 15 May 2001 Art. 84 Official Journal of 16 May 2001) (Order No. 2004-1173 of 4 November 2004 Art. 14 Official Journal of 5 November 2004) (Act No. 2004-1343 of 9 December 2004 Art. 83 II Official Journal of 10 December 2004)
For application of Articles 81 to 83 of the Founding Treaty of the European Community, the Minister for Economic Affairs and the officials he has designated or empowered pursuant to the provisions of the present Book, on the one hand, and the Competition Council, on the other, have the powers conferred on them respectively by the articles of the present Book and by EC Council Regulation No. 139/2004, of 20 January 2004, relating to the control of mergers between companies, and EC Council Regulation No. 1/2003, of 16 December 2002, relating to implementation of the competition rules laid down in articles 81 and 82 of the Founding Treaty of the European Community. The rules of procedure referred to in those texts are applicable thereto.
For application of Articles 87 and 88 of the Founding Treaty of the European Community, the Minister for Economic Affairs and the officials he has designated or empowered pursuant to the provisions of Article L. 450-1 have the powers conferred on them by Part V of Book IV.
Article L470-7 Professional associations may bring actions before the civil or Tribunal de commerce with regard to facts directly or
indirectly harming the collective interest of the profession or sector which they represent or fair competition.
Article L470-8 A Conseil d'Etat decree shall determine the terms for applying this book.
BOOK V Commercial paper and guarantees Articles L511-1 to
L526-4 TITLE I Commercial paper Articles L511-1 to
L512-8
CHAPTER I Bill of exchange Articles L511-1 to
L511-81
SECTION I Creation and form of the bill of exchange Articles L511-1 to
L511-6
Article L511-1 I.- The bill of exchange shall contain: 1° The term “bill of exchange” inserted in the actual text of the bill and expressed in the language used for wording
this bill; 2° The unconditional order to pay a certain sum; 3° The name of the person who must pay, referred to as the drawee; 4° The indication of its expiration; 5° The indication of the place where payment must be made; 6° The name of the person to whom or to the order of whom payment must be made; 7° The indication of the date when and the place where the bill was created; 8° The signature of the person issuing the bill, referred to as the drawer. This signature shall be added either by
hand or using any non-written method. II.- Bills from which one of the items indicated in I is missing shall not be valid as bills of exchange, except in the
cases specified by III to V of this article. III.- Bills of exchange whose expiration is not indicated shall be regarded as payable on sight. IV.- Unless specifically indicated, the place stated beside the name of the drawee shall be deemed to be the place
of payment and, at the same time, the place of domicile of the drawee. V.- Bills of exchange not indicating the place of their creation shall be regarded as having been signed in the place
indicated beside the drawer’s name.
Article L511-2 Bills of exchange may be made out to the order of the drawer. They may be drawn on the drawer. They may be drawn on behalf of a third party. They may be payable at the domicile of a third party, either in the locality where the drawee has its domicile or in
another locality.
Article L511-3 In a bill of exchange payable on sight or after sight, it may be stipulated by the drawer that the sum shall produce
interest. In any other bill of exchange, this stipulation shall be deemed to be unwritten.
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COMMERCIAL CODE The interest rate must be indicated in the bill. If this is not indicated, the clause shall be deemed to be unwritten. The interest shall run from the date of the bill of exchange unless another date is indicated.
Article L511-4 The bill of exchange whose amount is written in both words and figures shall be valid, in the event of a difference
between these, for the sum written in words. The bill of exchange whose amount is written several times, either in words or in figures, shall be valid, in the event
of a difference between these, only for the lowest sum.
Article L511-5 Bills of exchange signed by minors shall be invalid in their respect, except for the respective rights of the parties, in
accordance with Article 1312 of the Civil Code. If the bill of exchange bears the signatures of persons who are not capable of binding themselves by a bill of
exchange, false signatures or signatures of imaginary persons or signatures which, for any other reason, cannot be binding on the persons who have signed the bill of exchange, or in whose name this has been signed, the obligations of the other signatories shall not be any less valid.
Anyone putting their signature to a bill of exchange as the representative of a person for whom they do not have the power to act shall be bound themselves with regard to the bill and, if they have paid, to the same rights which the alleged principal would have had. The same shall apply to representatives who have exceeded their powers.
Article L511-6 The drawer shall act as guarantor for the acceptance and payment. The drawer may be exonerated from the acceptance guarantee. Any clause by which the drawer is exonerated
from the payment guarantee shall be deemed to be unwritten.
SECTION II Consideration Article L511-7
Article L511-7 Consideration must be provided by the drawer or by the person on whose behalf the bill of exchange shall be
drawn, without the drawer on behalf of another person ceasing to be personally bound towards the endorsers and the bearer only.
Consideration exists if, on the expiration of the bill of exchange, that for which this is supplied is payable to the drawer, or to the person on whose behalf the bill is drawn, in a sum at least equal to the amount of the bill of exchange.
Ownership of the consideration shall be automatically transferred to the successive holders of the bill of exchange. Acceptance shall presume consideration. It shall provide proof of this with regard to endorsers. Whether or not there is acceptance, the drawer alone shall be required to prove, in the event of refusal, that those
on whom the bill was drawn had consideration on the expiration. Otherwise, the drawer shall be required to guarantee this, even if the protest has been made after the fixed periods.
SECTION III Endorsement Articles L511-8 to
L511-14
Article L511-8 Any bill of exchange, even where not expressly drawn to order, shall be transferable by means of endorsement. When the drawer has inserted in the bill of exchange the words “not to order” or an equivalent expression, the bill
shall be transferable only in the form and with the effects of an ordinary assignment. The endorsement may be carried out to the benefit of the drawee, whether or not this is the acceptor, the drawer or
any other obligor. These persons may endorse the bill again. The endorsement must be unconditional. Any condition to which it is subject shall be deemed to be unwritten. Partial endorsement shall be invalid. Endorsement “to the bearer” shall be valid as a blank endorsement. The endorsement must be entered on the bill of exchange or on a sheet attached thereto and referred to as an
extension. It must be signed by the endorser. The signature of the latter shall be added either by hand or using any other non-written method.
The endorsement does not have to name the beneficiary and may consist of a blank endorsement formed of the simple signature of the endorser. In the latter case, the endorsement, in order to be valid, shall be entered on the back of the bill of exchange or on the extension.
Article L511-9 I.- The endorsement shall transfer all the rights resulting from the bill of exchange. II.- If the endorsement is blank, the bearer may: 1° Fill in the blank, either with his name or the name of another person; 2° Endorse the bill again either blank or to another person; 3° Hand over the bill to a third party without filling in the blank and without endorsing it.
Article L511-10
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COMMERCIAL CODE The endorser shall, unless otherwise specified, act as guarantor for the acceptance and payment. The endorser may prohibit another endorsement. In this case, the endorser shall not be bound by the guarantee
towards the persons to whom the bill is subsequently endorsed.
Article L511-11 The holder of a bill of exchange shall be regarded as the legitimate bearer if they can prove their right by an
uninterrupted series of endorsements, even if the last endorsement is blank. Deleted endorsements shall be deemed to be unwritten in this respect. When a blank endorsement is followed by another endorsement, the signatory of the latter shall be deemed to have acquired the bill by the blank endorsement.
If a person has been dispossessed of a bill of exchange by any event whatsoever, the bearer proving their right in the manner indicated in the above paragraph shall be required to relinquish the bill only if they have acquired this in bad faith or if, in acquiring this, they have committed a serious offence.
Article L511-12 Persons against whom actions are brought with regard to bills of exchange may not raise against the bearer the
exceptions based on their personal relationships with the drawer or with the previous bearers, unless the bearer, in acquiring the bill, has acted knowingly to the detriment of the debtor.
Article L511-13 When the endorsement contains the words “bill for collection” or “for collection” or any other text implying a simple
order, the bearer may exercise all the rights deriving from the bill of exchange, but may endorse this only for collection. The obligors may, in this case, invoke against the bearer only the exceptions which would be binding on the
endorser. The order contained in an endorsement “for collection” shall not end with the death of the principal or the
occurrence of their incapacity. When an endorsement contains the words “pledged security” or any other text implying a charge, the bearer may
exercise all the rights deriving from the bill of exchange, but an endorsement made thereby shall be valid only as an endorsement “for collection”.
The obligors may not invoke against the bearer the exceptions based on their personal relationships with the endorser unless the bearer, on receiving the bill, has acted knowingly to the detriment of the debtor.
Article L511-14 Endorsement after the expiration shall produce the same effects as an endorsement before the expiration.
However, endorsement subsequent to the protest for lack of payment, or made after the expiration of the period fixed for making the protest, shall produce only the effects of an ordinary assignment.
Unless otherwise proven, the undated endorsement shall be deemed to have been made before the expiration of the period fixed for making the protest.
It is forbidden to backdate orders. If this occurs, these will be regarded as forgeries.
SECTION IV Acceptance Articles L511-15 to
L511-20
Article L511-15 Bills of exchange may, until their expiration, be presented for acceptance by the drawee, at the place of their
domicile, by the bearer or even by a simple holder. In any bill of exchange, the drawer may stipulate that this must be presented for acceptance, with or without fixing a
deadline for this. The drawer may prohibit presentation for acceptance in the bill unless this involves a bill of exchange payable at a
third party’s domicile or a bill payable in a locality other than that of the domicile of the drawee or a bill drawn after sight. The drawer may also stipulate that presentation for acceptance may not occur before an indicated date. Any endorser may stipulate that the bill must be presented for acceptance, with or without fixing a deadline for this,
unless it has been declared not acceptable by the drawer. After sight bills of exchange must be presented for acceptance within one year of their term. The drawer may reduce the latter period or stipulate a longer period. These periods may be reduced by the endorsers. When the bill of exchange is created pursuant to an agreement for supplies of goods, concluded between traders,
and when the drawer has fulfilled its obligations resulting from the contract, the drawee may not refuse to give their acceptance on the expiration of a period complying with normal commercial practice in terms of recognition of goods.
The refusal of acceptance shall lead ipso jure to the expiration of the term at the expense of the drawee.
Article L511-16 The drawee may request that a second presentation is made thereto on the day after the first. The interested
parties shall not be allowed to claim that this request is only permitted if it is indicated in the protest. The bearer shall not be required to relinquish, to the drawee, the bill presented for acceptance.
Article L511-17 The acceptance shall be written on the bill of exchange. It shall be expressed by the word “accepted” or any other
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COMMERCIAL CODE equivalent word and shall be signed by the drawee. The simple signature of the drawee added to the reverse of the bill shall be valid for acceptance.
When the bill is payable after sight or when it must be presented for acceptance within a specified period pursuant to a special stipulation, the acceptance must be dated on the day when this was given, unless the bearer requires only that it is dated on the day of presentation. In the absence of this date, the bearer, in order to protect its rights of recourse against the endorsers and drawer, shall have this omission noted by a protest made in due time.
The acceptance shall be unconditional, but the drawee may restrict this to part of the sum. Any other change made by the acceptance to the indications of the bill of exchange shall be equivalent to a refusal
of acceptance. However, the acceptor shall be bound under the terms of its acceptance.
Article L511-18 When the drawer has indicated in the bill of exchange a place of payment other than that of the domicile of the
drawee, without designating a third party at whose domicile the payment must be made, the drawee may indicate this on acceptance. Failing this indication, the acceptor shall be deemed to be obliged to pay itself at the place of payment.
If the bill is payable at the domicile of the drawee, the latter may, in the acceptance, indicate an address in the same place where the payment must be made.
Article L511-19 As a result of the acceptance, the drawee is obliged to pay the bill of exchange on expiration. Failing payment, the bearer, even if this is the drawer, shall have against the acceptor a direct action resulting from
the bill of exchange for anything which may be demanded pursuant to Articles L.511-45 and L.511-46.
Article L511-20 If the drawee, having marked the bill of exchange with its acceptance, deletes this before the return of the bill, the
acceptance shall be deemed to have been refused. Unless otherwise proven, the deletion shall be deemed to have been made before the return of the bill.
However, if the drawee indicated its acceptance in writing to the bearer or to any signatory, the former shall be bound towards these within the terms of its acceptance.
SECTION V Guarantee Article L511-21
Article L511-21 Payment of a bill of exchange may be secured as to all or part of the amount thereof by a guarantee. The said guarantee shall be provided by a third party or by the signatory to the bill. The guarantee shall be provided either on the bill of exchange or attached to it, or by a separate act indicating the
place at which the guarantee is given. It shall be expressed by the words"valid as guarantee"or any equivalent formula, and must be signed by the
guarantor. It shall be deemed to have come into existence simply on signature by the guarantor on the reverse side of the bill
of exchange, except where the signature is that of the drawee or the drawer. The guarantee must indicate the person on whose behalf it is given. In the absence of any such indication, it shall
be deemed to be for the benefit of the drawer. The guarantor shall be bound according to the terms of the guarantee given. The guarantee shall be valid even though the obligation guaranteed may be void for any reason other than a formal
defect. On paying the bill of exchange, the guarantor shall acquire the rights against the beneficiary of the guarantee arising
from the bill of exchange and any persons bound by obligations to the said beneficiary by virtue of the bill of exchange.
SECTION VI Expiration Articles L511-22 to
L511-25
Article L511-22 I. A bill of exchange may be drawn: 1. At sight; 2. A certain length of time after presentation; 3. A certain length of time after its date; 4. On a fixed date. II.- Bills of exchange with other expiration dates or successive expiration dates shall be void.
Article L511-23 Bills of exchange shall be payable on presentation. They must be presented for payment within a year of the date
thereof. The drawer may reduce the said period or stipulate a longer one. The said periods may be reduced by endorsers.
The drawer may stipulate that a bill of exchange payable at sight must not be presented for payment before the end of a specified period. In any such case, the period during which the bill may be presented shall begin on the expiration of the said period.
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COMMERCIAL CODE Article L511-24
The expiration date of a bill of exchange payable a certain length of time after presentation shall be determined either by the date of acceptance or by the date of protest.
In the absence of any protest, an undated acceptance shall be deemed for the acceptor's purposes to have been given on the final day of the period specified for presentation for acceptance.
A bill of exchange drawn one or more months after the date of the bill or of presentation shall mature on the corresponding day of the month on which payment is due. In the absence of a corresponding date, such a bill shall mature on the last day of the said month.
Where a bill of exchange is drawn one or more months and a half after the date of the bill or of presentation, the full months shall be counted first.
If the expiration date is fixed at the beginning, in the middle or at the end of the month, the said terms shall be understood to mean the 1st, 15th or last day of the month.
The expressions"eight days"or"fifteen days"shall mean eight or fifteen actual days rather than one or two weeks. The expression"half a month"shall indicate a period of fifteen days.
Article L511-25 Where a bill of exchange is payable on a fixed date at a place where the calendar is different from that of the place
of issue, the expiration date shall be considered fixed according to the calendar of the place of payment. Where a bill of exchange drawn between two places with different calendars is payable a certain length of time after
the date thereof, the date of issue shall be put back to the corresponding date in the calendar of the place of payment and its expiration date shall be fixed accordingly.
Periods for the presentation of bills of exchange shall be calculated according to the rules indicated in the preceding sub-paragraph.
These rules shall not apply where a clause in a bill of exchange, or simply the wording of the document, indicates that the parties intended to adopt different rules.
SECTION VII Payment Articles L511-26 to
L511-37
Article L511-26 The bearer of a bill of exchange payable on a fixed date or a certain length of time after presentation or the date
thereof must present the bill either on the day on which it is payable, or on one of the next two working days thereafter. Presentation of a bill of exchange to a clearing house shall be equivalent to presentation for payment.
Article L511-27 On paying a bill of exchange, the drawee may demand that it be delivered endorsed with an acknowledgement of
receipt by the bearer. The bearer may not refuse a part payment. In the event of part payment, the drawee may demand that a note of the part payment be endorsed on the bill and
that an acknowledgement of receipt thereof be given. Acknowledgements of receipt of payments on account of a bill of exchange shall be given by the drawer and the
endorser. The bearer must protest the bill of exchange for the balance outstanding.
Article L511-28 The bearer of a bill of exchange shall not be obliged to receive payment before the expiration date. Drawers who pay before the expiration date shall do so at their own risk. Drawers who pay on the expiration date shall be validly discharged, unless there is any dishonesty or serious fraud
on their part. They must satisfy themselves that the successive endorsements are legally valid, but need not check the endorsers' signatures.
Article L511-29 Where a bill of exchange is stipulated to be payable in a currency not valid in the place of payment, the amount due
may be paid in the currency of the country, according to its value on the expiration date. If the debtor is late in making payment, the bearer may opt to demand payment of the amount due under the bill of exchange in the currency of the country according to the rate of exchange either on the expiration date or on the date of payment.
The value of a foreign currency shall be determined according to the usual practice in the place of payment. The drawer may, however, stipulate that the sum payable be calculated according to a rate specified in the bill.
The rules herein specified shall not apply where the drawer shall have stipulated that payment must be made in a certain currency indicated by a clause specifying cash payment in a foreign currency.
Where the amount payable under the bill of exchange is indicated in a currency of the same denomination, but a different value, in the country if issue and the country of payment, it shall be presumed to refer to the country of payment.
Article L511-30 If a bill of exchange is not presented for payment on its expiration date, or on one of the next two working days
thereafter, any debtor shall be entitled to deposit the amount of the bill with the Consignments office at the risk and cost
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COMMERCIAL CODE of the bearer.
Article 511-31 No objection to payment shall be admissible save in the event of loss of the bill of exchange or of an administrative
order or liquidation of the bearer.
Article 511-32 In case of loss of an unaccepted bill of exchange, the owner may pursue payment on any subsequent bill.
Article L511-33 If the lost bill of exchange has an acceptance endorsed on it, payment may be pursued on any subsequent bill only
by virtue of a court order and subject to the provision of security.
Article L511-34 If a person who loses a bill of exchange, whether or not accepted, is unable to re-present any subsequent bill,
payment of the lost bill may be demanded and obtained by means of a court order, subject to the production of accounting evidence of ownership and the provision of security.
Article L511-35 In the event of refusal to pay on a demand submitted in accordance with the two preceding Articles, the owner of
the lost bill of exchange shall retain all the relevant rights by means of a deed of protestation. The said deed must be executed on the day after the expiration date of the lost bill of exchange. The notices required under Article L.511-42 must be given to the drawer and endorsers within the time limits fixed by the said Article.
Article L511-36 In order to obtain the subsequent bill, the owner of the bill of exchange must apply to the immediate endorser, who
must act as the owner's agent vis-à-vis the next endorser back, and so on from each endorser to the one before, back to the drawer of the bill. The owner of the lost bill of exchange must bear the expenses.
Article L511-37 The pledge of security referred to in Articles L511-33 and L511-34 shall be extinguished after three years unless
any claims shall have been made or legal proceedings commenced within that period.
SECTION VIII Recourse due to non-acceptance and non-payment Articles L511-38 to
L511-51
Article L511-38 I.- Bearers may exercise the remedies to which they are entitled against the endorsers, the drawer and other parties
under obligation: 1. On the expiration date of the bill, if payment shall not have taken place; 2. Even before the expiration date: a) In the event of total or partial refusal of acceptance; b) In the event of an administrative order of the drawee, whether or not the bill is accepted, or of insolvency of the
drawee even if not recognised by a Court decision, or of an unsuccessful attempt to attach the drawee's assets; c) In the event of an administrative order of the drawer of a non-acceptable bill. II. - Nevertheless, sureties against whom a right of action is exercised in the circumstances described in paragraph
1 b) and c) may within three days of the date of commencing the said action apply to the Presiding Judge of the Tribunal de commerce of the district in which they are resident for time to pay. If the said application is held to be justified, the Judge shall make an order fixing the time when the sureties shall be required to pay the commercial paper in question, but any periods so granted shall not extend beyond the date fixed for payment. No objection or appeal may be made against such an order.
Article L511-39 Refusal to accept or pay must be recorded by a deed known as a non-acceptance protest or a non-payment protest. A non-acceptance protest must be issued within the time limits fixed for presentation for acceptance. Where,
however, in the circumstances described in Article L.511-16 (1), the bill is presented for the first time on the final day of the said period, the protest may be issued on the following day.
A non-payment protest relating to a bill of exchange payable on a fixed date or a certain length of time after the date or presentation thereof must be registered on one of the two working days following the date on which the bill of exchange is payable. In the case of bills of exchange payable at sight, the protest must be drawn in accordance with the conditions indicated in the preceding sub-paragraph relating to non-acceptance protests.
A non-acceptance protest shall dispense with the need for presentation for payment or a non-payment protest. Should the drawee, whether or not accepting the bill, have suspended payments, or in the event of an unsuccessful
attempt to attach the drawee's assets, the bearer shall be entitled to exercise the relevant rights only after presentation of the bill to the drawee for payment and the registration of a protest.
In the event of an administrative order or liquidation of the drawee, whether or not accepting the bill, and likewise in the event of an administrative order or liquidation of the drawer of a non-acceptable bill, the production of a declaratory judgment shall suffice to enable the bearer to exercise the appropriate remedies.
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COMMERCIAL CODE Article L511-40
Where a bearer agrees to accept payment by ordinary cheque, by a payment order drawn on the Bank of France, or by Giro cheque, the cheque or order must indicate the number and expiration dates of the instruments so paid. The said indication shall not, however, be required for cheques or payment orders created for inter-bank payments of balances of transactions between bankers, effected through a clearing house.
Where settlement is effected by ordinary cheque and the cheque is not paid, notice of the non-payment protest relating to the said cheque must be served on the bank at which payment of the bill should take place within the period provided in Article 41 of the Decree-Law of 30 October 1935 unifying the law relating to cheques and payment cards. The protest of non-payment of the
cheque and the notice must be served under cover of the same writ, save where, for reasons of territorial jurisdiction, two separate huissiers are required.
Where settlement is effected by payment order and the order is rejected by the Bank of France, or by Giro cheque and the order is rejected by the Giro bank where the account to be debited is held, the non-payment thereof shall be recorded in a form of notice served at the address for service of the issuer of the said order within eight days of the date of issue.
The said notice must be drawn up by a huissier or a notary.
Article L511-41 Where the final day of the period allowed for service of notice of non-payment of a payment order or Giro cheque is
a legal public holiday, the said period shall be extended until the first working day following the expiration thereof. Intervening public holidays shall be included when calculating the said period. Those days on which the current law states that no payment may be demanded and no protest may be made shall be treated as equivalent to public holidays.
Unless they pay the bill of exchange and the expenses of the notice and, if appropriate, the cheque protest, drawees of bills of exchange who receive such a notice must return the bill of exchange to the huissier who serves the notice. The huissier shall immediately draw up a non-payment protest in relation to the bill of exchange.
If the drawee shall not return the bill of exchange, a deed of protest must immediately be registered, recording the failure to return the bill. A third party bearer shall in these circumstances be exempted from compliance with the provisions of Articles L.511-33 and L.511-34.
Failure to return a bill of exchange shall constitute a criminal offence rendering the perpetrator liable to the penalties laid down in Articles 314-1 and 314-10 of the Penal Code.
Article L511-42 The bearer must give notice of non-acceptance or non-payment to the endorser within four working days of the date
of the protest or of presentation where there is a free return clause. Where the instrument indicates the name and address of the drawer of a bill of exchange, notaries and huissiers
shall be required to notify the latter of the reasons for the non-payment thereof within forty-eight hours of registration thereof by post and registered letter, failing which they may be liable for damages. The said letter shall entitle the notary or huissier to a fee the amount of which shall be fixed by statute, in addition to the expenses of postage and registration of the letter.
Every endorser must, within two working days of the date on which the notice is received, notify the next endorser back, indicating the names and addresses of the persons who served the previous notices, and so on back to the drawer.
The above-mentioned periods shall begin to run on receipt of the previous notice. Where, in accordance with the preceding sub-paragraph, notice is served on the signatory of a bill of exchange, the
same notice must be given to the said signatory's guarantor within the same time limit. Where an endorser has not indicated an address or has done so illegibly, it shall be sufficient that notice has been
served on the previous endorser. Any person having a notice to serve may do so in any form, even by simply returning the bill of exchange. It must be proved that notice was served within the relevant time limit. The said time limit shall be considered to have been observed if a letter giving notice was posted within the said
period. Persons who fail to serve notice within the time limit indicated above shall not be liable to forfeiture of rights; they
shall be liable, if applicable, for any loss or damage caused by their negligence, but the amount of damages awarded shall not exceed the amount of the bill of exchange.
Article 511-43 The drawer or an endorser or guarantor may exempt the bearer from the requirement that a non-acceptance or
non-payment protest must be issued to enable the bearer to exercise the appropriate remedies, by endorsing a"free return"or"no protest required"clause or any other equivalent clause on the instrument and signing the said endorsement.
Such a clause shall not exempt the bearer from presenting the bill of exchange within the legal time limits nor from serving notice.
The burden of proving failure to observe the time limits shall fall to the person pleading the said failure against the bearer.
Where the clause is endorsed by the drawer, it shall bind all signatories; where endorsed by an endorser or guarantor, it shall bind only the latter. A bearer who issues a protest notwithstanding the clause endorsed by the drawer shall be responsible for the expenses thereof.
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COMMERCIAL CODE Where the clause emanates from an endorser, or a guarantor, the expenses of the protest, if one is issued, may be
recovered against all signatories.
Article 511-44 All persons who shall have drawn, accepted, endorsed or guaranteed a bill of exchange shall be jointly and
severally liable to the bearer. The bearer shall be entitled to bring an action against all the said persons, individually or collectively, without being
constrained to observe the order in which they assumed their obligations. Any signatory of a bill of exchange who shall have repaid the same shall be entitled to the same rights. An action against one of the obligees shall not prevent an action from being brought against any of the others, even
if their obligations were assumed later in time than those of the defendant to the original action.
Article L511-45 I. - Bearers may claim the following sums from parties against whom they exercise their remedies: 1. The amount of the non-accepted or unpaid bill of exchange, together with interest, if stipulated; 2. Interest at the legal rate from the expiration date; 3. The expenses of the protest and notices served, and any other expenses. II.- Where the remedy is exercised before the expiration date, a discount shall be deducted from the amount of the
bill. The said discount shall be calculated according to the official discount rate fixed by the Bank of France as it exists at the date of the exercise of the remedy at the bearer's address.
Article L511-46 Persons who shall have repaid a bill of exchange may claim the following sums from their sureties: 1. The full amount of the sum paid; 2. Interest on the said sum, calculated at the legal rate, from the date on which repayment was made; 3. Any expenses incurred.
Article L511-47 Any obligee against whom a remedy shall be exercised or who shall be exposed to the exercise of a remedy may
demand the return of the bill of exchange against payment, with the protest and an acknowledgement of due discharge. Endorsers who shall have repaid a bill of exchange may delete their endorsement and those of any subsequent
endorsers.
Article L511-48 Should a remedy be exercised following partial acceptance, the person repaying the sum for which the bill was not
accepted may demand that a note of the said repayment be endorsed on the letter and that an acknowledgement of receipt be given. The bearer must further deliver a certified copy of the bill and the protest so that any subsequent remedies may be exercised.
Article L511-49 I.- On the expiration of the periods fixed: 1. For the presentation of a bill of exchange at sight or a certain length of time after sight; 2. For the issue of a non-acceptance or a non-payment protest; 3. For presentation for payment where the bill contains a free return clause, the bearer's rights against endorsers,
the drawer and any other obligees except the acceptor shall lapse. II.- Nevertheless, rights against the drawer shall not lapse unless the latter proves having made provision for lapse.
In any such case, the bearer shall retain a right of action only against the person against whom the bill of exchange was drawn.
III. - Bearers who fail to present the bill for acceptance within the time limit stipulated by the drawer shall forfeit their right of action for default on payment or default on acceptance, unless it is apparent from the terms of the stipulation that the drawer was intended to be exonerated only from the acceptance guarantee.
IV. - Where a time limit for presentation is stipulated in an endorsement, only the endorser may rely on it in law.
Article L511-50 Where the presentation of a bill of exchange or the issue of a protest within the legal time limits is prevented by an
insurmountable obstacle such as the legal rules of any State or any other case of force majeure, the said periods shall be extended.
The bearer must immediately give the immediate endorser notice of a case of force majeure and endorse a note of the said notice, signed and dated, on the bill of exchange or a rider thereto. The provisions of Article 511-42 shall apply in all other respects.
As soon as the case of force majeure shall disappear, the bearer must present the bill for acceptance or payment, and register a protest if necessary.
Where a case of force majeure persists for more than thirty days from the expiration date, remedies may be exercised without the need for either presentation or the registration of a protest, unless the said remedies are suspended for a longer period, pursuant to Article L.511-61.
For bills of exchange payable at sight or a certain length of time after sight, the thirty-day period shall begin on the date on which the bearer gave notice of a case of force majeure to his endorser, even if this was done before the end of the period allowed for presentation. For bills of exchange payable a certain length of time after sight, the period after
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COMMERCIAL CODE sight indicated in the bill of exchange shall be added to the thirty-day period.
Events that are purely personal to the bearer, or to any person instructed by the bearer to present the bill or issue the protest, shall in no circumstances be considered cases of force majeure.
Article L511-51 Irrespective of the formalities required for an action to enforce a guarantee, a bearer of a bill of exchange who has
issued a non-payment protest may apply for a Court order for the preventive attachment of movable assets belonging to the drawers, acceptors and endorsers.
SECTION IX Protests Articles L511-52 to
L511-61
Subsection 1 Forms Articles L511-52 to
L511-55
Article L511-52 Non-acceptance or non-payment protests must be drawn by a notary or a huissier. The protest must consist of a single writ served: 1. At the address for service or last known address of the person on whom the bill of exchange was payable; 2. At the address for service of the persons indicated by the bill of exchange for payment in case of necessity; 3. At the address for service of the third party who intervened to accept the bill. In the event of a false address being given, the protest must be preceded by a search.
Article L511-53 The deed of protest must contain a literal transcription of the bill of exchange, the acceptance, the endorsements
and the recommendations indicated therein, and the formal notice to pay the bill of exchange. It must state whether the person required to pay was present or absent, the reasons for the refusal to pay and the inability or refusal to sign.
Article L511-54 No deed executed by the bearer of the bill of exchange may replace a deed of protest, save as provided by Articles
L.511-32 to L.511-37 and Articles L.511-40 and L.511-41.
Article L511-55 Notaries and huissiers must deposit exact copies of protests, failing which they shall be liable to dismissal and
payment of expenses and damages to the parties. Subject to the same sanctions, they must also deliver to the Clerk of the Tribunal de commerce or Tribunal de grande instance having jurisdiction in commercial matters for the area in which the debtor's address for service is located, or send true copies of protests of non-payment of accepted bills of exchange and promissory notes to the said Clerk by registered letter with recorded delivery. This formality must be completed within two weeks of the date of the deed.
Subsection 2 Publication Articles L511-56 to
L511-60
Article L511-56 The Clerk of the Tribunal de commerce shall keep a duly updated register, by name and debtor, of protests of
non-payment of accepted bills of exchange, promissory notes and cheques, according to the formal complaints lodged with him by notaries and huissiers, and also certificates of non-payment of Giro cheques issued by Giro banks. The said register shall consist of statements a list of which shall be fixed by decree.
Article L511-57 On the expiration of a month from the date of the protest or certificate of non-payment of a Giro cheque and for a
period of a year from the same date, any applicant may obtain from the Clerks of the aforementioned Courts an extract from the list of names referred to in Article L.511-56, at his own expense.
Article L511-58 On the deposit by the debtor of the instrument and the protest of non-payment of a postal order, or a receipt for
payment of the order, against an acknowledgement for receipt, the Clerk of the Tribunal de commerce shall at the debtor's expense delete the notice of protest or certificate of non-payment from the list drawn up pursuant to Article L.511-56.
Documents lodged may be withdrawn during the year that follows the end of the period of a year referred to in Article L.511-57, after which the Clerk of the Court shall be discharged from responsibility for the same.
Article L511-59 Any publication, in whatever form, of the lists drawn up pursuant to the provisions of this sub-section is prohibited,
subject to liability for damages.
Article L511-60
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COMMERCIAL CODE A decree approved by the Conseil d'Etat shall determine the methods of application of the provisions of this
sub-section. It shall in particular fix the amount of the remuneration payable to huissiers and Clerks of the Tribunaux de commerce for the various formalities for which they are responsible.
Subsection 3 Extension of deadlines Article L511-61
Article L511-61 In the event of mobilisation of the armed forces, national calamity or public disaster, or interruption of services
operated by the Government or under Government control, the deadlines by which protests and other deeds intended to protect legal remedies in respect of all negotiable instruments must be issued may be extended for all or part of French territory by an Order of the Council of Ministers.
The expiration dates of negotiable instruments may be extended in similar circumstances and subject to the same conditions.
SECTION X Replacement Articles L511-62 to
L511-64
Article L511-62 Any person entitled to exercise a remedy may, unless otherwise stipulated, obtain reimbursement by means of a
replacement bill known as a retraite drawn at sight on one of its guarantors and payable to the latter's account. In addition to the sums specified in Articles L.511-45 and L.511-46, replacement bills shall include a broker's fee
and the stamp duty payable on the replacement. Where a replacement bill is drawn by the bearer, the amount thereof shall be fixed according to the rate for a sight
bill drawn at the place where the original bill was payable on the guarantor's place of residence. Where a replacement bill is drawn by the endorser, the amount thereof shall be fixed according to the rate for a sight bill drawn at the place of residence of the drawer of the replacement bill on the guarantor's place of residence.
Article L511-63 The following fees shall be charged for replacement bills issued in mainland France: 0.25% on chefs-lieux [cities or
towns comprising seats of local government] of departments, 0.50% on chefs-lieux of districts and 0.75% anywhere else.
No replacement shall on any account take place in the same department.
Article L511-64 Replacement bills may not be accumulated. No endorser or drawer shall be required to bear more than one replacement bill.
SECTION XI Honour Articles L511-66 to
L511-65
Article L511-65 The drawer, an endorser or a guarantor may appoint a person to accept or pay a bill should the need arise. Bills of exchange may be accepted or paid, in accordance with the conditions hereinafter determined, by a person
intervening for any debtor against whom a remedy may be exercised. The intervenor may be a third party or even the drawee, or a person already under obligation by virtue of the letter
of exchange, other than the acceptor. Intervenors shall be required to give notice of their intervention to the party on whose behalf they have intervened
within two working days. Should this time limit not be observed, they shall be liable for any loss or damage that may be caused by their negligence, but any damages awarded shall not exceed the amount of the bill of exchange.
Subsection 1 Acceptance for honour Article L511-66
Article L511-66 Acceptance for honour may take place in all cases in which remedies are open to the bearer of an acceptable bill of
exchange before the expiration date. Where a bill of exchange indicates a person to accept or pay it in case of need in lieu of payment, bearers shall not
exercise their rights of action against the person who endorsed the said indication on the bill or any subsequent signatories before the expiration date, unless they shall have presented the bill of exchange to the person so designated and the said person shall have refused acceptance, and the refusal shall not have been recorded by means of a protest.
In other cases of honour, bearers may refuse acceptance for honour. Nevertheless, if they agree to such acceptance, they shall forfeit their rights of action before the expiration date
against the person on whose behalf the acceptance was given and subsequent signatories. A note of acceptance by intervention must be endorsed on the bill of exchange; it must be signed by the intervenor.
It must name the person on whose behalf it takes place; in the absence of any such indication, acceptance shall be
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COMMERCIAL CODE deemed to have been given on behalf of the drawer.
Acceptors by honour shall be obliged to the bearer and endorsers subsequent to the person on whose behalf they shall have intervened, in the same way as the latter.
Notwithstanding the fact of acceptance for honour, the person on whose behalf it took place and that person's sureties may demand that the bearer deliver the latter of exchange, the protest and a discharge of account, if appropriate, against payment of the sum specified in Article L.511-45.
Subsection 2 Payment on behalf of a third party Articles L511-67 to
L511-71
Article L511-67 Payment on behalf of a third party may take place in all cases where rights of action are open to the bearer, whether
on or before the expiration date. Payment must comprise the whole sum which the person on whose behalf intervention takes place would have had
to pay. It must be effected by no later than the last day allowed for the issue of a non-payment protest.
Article L511-68 Where a bill of exchange has been accepted by intervenors whose place of residence is in the place of payment or
where persons whose place of residence is in the same place have been indicated to pay should the need arise, the bearer must present the bill to all the said persons and, if necessary, issue a non-payment protest by no later than the day following the final date allowed for a protest to be issued.
If no protest is issued within the said period, the person who indicated the need, or on whose behalf the bill was accepted, and any subsequent endorsers shall cease to be under obligation.
Article L511-69 Bearers who refuse payment on behalf of a third party shall forfeit their rights of action against those persons who
would thereby have been discharged.
Article L511-70 Payment on behalf of a third party must be recorded by a formal discharge endorsed on the bill of exchange, with
an indication of the person on whose behalf it is made. In the absence of any such indication, payment shall be deemed to have been made on the drawer's behalf.
The bill of exchange and protest, if any, must be delivered to the person paying on behalf of a third party.
Article L511-71 Person paying by intervention shall acquire the rights arising from the bill of exchange against the person on whose
behalf they paid it and those obliged to the latter by virtue of the bill of exchange. They may not, however, further endorse the bill of exchange.
Endorsers subsequent to the signatory on whose behalf payment took place shall be discharged. In the event of simultaneous honour by more than one person, the intervenor discharging the largest sum shall take
priority. Intervenors who knowingly contravene this rule shall forfeit their rights of action against the persons discharged thereby.
SECTION XII Multiple originals and copies Articles L511-72 to
L511-76
Subsection 1 Multiple originals Articles L511-72 to
L511-74
Article L511-72 Bills of exchange may be drawn in a number of identical originals. The said originals must be numbered in the wording of the heading itself, failing which each of them shall be
considered as a separate bill of exchange. Bearers of bills of exchange that do not indicate that only one original thereof has been drawn may request the
issue of more than one copy at their own expense. To that end, they must approach their immediate endorser, who shall be required to assist them by acting against their own endorser, and so on back to the drawer. Endorsers must reproduce their endorsements on all further originals.
Article L511-73 Payment made on one of the said original shall have the effect of a discharge, even where it is not stipulated that
such payment shall cancel the effect of the other originals. Nevertheless, the drawee shall be bound on the basis of each copy accepted and not returned.
An endorser who shall have transferred the originals to more than one person, and any subsequent endorsers, shall be proportionately bound by all originals bearing their signatures and not returned.
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COMMERCIAL CODE Article L511-74
Any person who shall have sent one of the originals for acceptance must indicate the name of the person holding the original in question on the other originals. The said holder must deliver it to the legitimate bearer of another original. If the holder refuses, the bearer may exercise the appropriate remedies only after recording by means of a protest:
1. That the original sent for acceptance was not delivered on demand; 2. That it has not been possible to obtain payment on another original.
Subsection 2 Copies Articles L511-75 to
L511-76
Article L511-75 Every bearer of a bill of exchange shall be entitled to make copies thereof. Copies must be exact reproductions of the original with any endorsements and other notes that appear on it. They
must indicate where they stop. They may be endorsed and guaranteed in the same way and with the same effects as the original.
Article L511-76 Copies must indicate the holder of the original instrument. The latter must deliver the original to the legitimate
bearer of the copy. If the latter refuses, the bearer shall be entitled to exercise the appropriate rights of action against the persons who
have endorsed or guaranteed the copy only after recording by means of a non-payment protest that the original has not been delivered on demand.
Where, after the last endorsement made before the copy was taken, the original instrument bears the clause"from this point on, endorsements are valid only on the copy"or any other equivalent wording, any endorsement on the original signed subsequently shall be void.
SECTION XIII Alterations Article L511-77
Article L511-77 In the event of any alteration of the wording of a bill of exchange, signatories subsequent to the said alteration shall
be bound by the wording as amended; prior signatories shall be bound by the original wording.
SECTION XIV Prescription Article L511-78
Article L511-78 Any actions against an acceptor arising from a bill of exchange must be brought within three years of its expiration
date. Actions by the bearer against endorsers and the drawer must be brought within a year of the date of a protest
issued within the legal time limit or the expiration date, in the case of a bill with a free return clause. Actions by endorsers against one another and against the drawer must be brought within six months of the date on
which the endorser repaid the bill or was sued. The time within which a legal action must be brought shall begin to run only on the date of the last legal action. The
limits shall not apply where sentence has been passed, or where the debt has been acknowledged by a separate deed. The interruption of the running of time shall take effect only against the person in respect of whom the act having
the effect of interruption was interposed. Nevertheless, all alleged debtors must, if required to do so, swear an affidavit that they owe no further monies under
the bill, and their surviving spouses, heirs or successors must swear that they sincerely believe that no sums remain outstanding.
SECTION XV General provisions Articles L511-79 to
L511-81
Article L511-79 Payment of a bill of exchange the expiration date of which falls on a public holiday shall not be enforceable until the
first working day thereafter. Similarly, any other acts in the law relating to a bill of exchange, particularly presentation for acceptance and protests, may be effected only on a working day.
Where any such act must be effected within a certain period of time the last day of which is a public holiday, the said period shall be extended until the first working day thereafter. Intervening public holidays shall be included when calculating the period of limitation.
Article L511-80 Days on which no payment may be enforced nor any protest issued according to the current laws shall be treated
as equivalent to public holidays.
Article L511-81
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COMMERCIAL CODE Statutory or agreed limitation periods shall not include the day on which they begin to run. No legal or judicial days of grace shall be permitted save in the cases referred to in Articles L.511-38 and L.511-50.
CHAPTER II Promissory note Articles L512-1 to
L512-8
Article L512-1 I.- Promissory notes must contain: 1. The order clause or name of the instrument inserted in the actual text and expressed in the language used for the
wording of the instrument; 2. A pure and simple promise to pay a specific sum of money; 3. An indication of the payment date; 4. An indication of the place of payment; 5. The name of the person to whom or to whose order payment is to be made; 6. An indication of the date and place where the note is subscribed; 7. The signature of the person issuing the instrument, known as the subscriber. II.- Promissory notes in which the payment date is not indicated shall be deemed to be payable at sight. III.- In the absence of any specific indication, the place of creation of the instrument shall be deemed to be the place
payment and, at the same time, the subscriber's place of residence. IV.- Promissory notes in which the place of creation is not indicated shall be deemed to be subscribed at the place
indicated next to the name of the subscriber.
Article L512-2 Any instrument lacking one of the items listed in Article 512-1-I shall not be valid as a promissory note, save in the
cases specified in Article 512-1-II to IV.
Article L512-3 The provisions of Articles L.511-2 to L.511-5, L.511-8 to L.511-14, L.511-18, L.511-22 to L.511-47, L.511-49 to
L.511-55, L.511-62 to L.511-65, L.511-67 to L.511-71 and L.511-75 to L.511-81, relating to bills of exchange, shall apply to promissory notes in so far as they are not incompatible with the nature of the said type of instrument.
Article L512-4 The provisions of Article L.511-21 relating to guarantees shall also apply to promissory notes. In the circumstances
referred to in the sixth sub-paragraph of the said Article, where the guarantee does not indicate on whose behalf it has been given, it shall be deemed to have been given on behalf of the subscriber of the promissory note.
Article L512-5 The provisions of Articles L.511-56 to L.511-61 relating to publication and the extension of the periods within which
protests may be issued shall apply to protests of non-payment of a promissory note.
Article L512-6 The subscriber of a promissory note shall be under a similar obligation to that assumed by the acceptor of a bill of
exchange.
Article L512-7 Promissory notes payable a certain length of time after presentation must be presented for approval by the
subscriber within the time limits laid down in Article 511-15. The period for presentation shall run from the date on which the subscriber's approval is endorsed on the note and signed. If the subscriber refuses to endorse it with such approval and date it a protest must be registered, the date of which shall serve as that on which the period from presentation shall begin to run.
Article L512-8 A debtor shall not be permitted to settle a bill by means of a promissory note unless an express provision to that
effect has been made by the parties and endorsed on the invoice. Even then, if the promissory note shall not have reached the creditor within thirty days after the delivery of the invoice, the creditor may issue a bill of exchange which the debtor shall be required to accept according to the conditions stipulated in the penultimate and final sub-paragraphs of Article L.511-15. Any stipulation to the contrary shall be deemed non-existent.
TITLE II Guarantees Articles L521-1 to
L526-4
CHAPTER I General provisions on the commercial security Articles L521-1 to
L521-3
Article L521-1 Security constituted either by a trader, or by a non-trading individual, for a commercial act, must be recorded in
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COMMERCIAL CODE accordance with the provisions of Article L.110-3, for the purposes of the contracting parties and those of notice to third parties.
Negotiable instruments may also be charged by way of security by means of an endorsement in the appropriate form, indicating that the instruments have been charged by way of security.
With regard to company and partnership shares and registered bonds issued by financial, industrial or commercial companies or civil-law partnerships, transferable by transfer registered in the company or partnership's records, and also to nominative entries in the Public Debt Register, security may also be constituted by a transfer by way of guarantee registered in the said records.
There shall be no exemption from the provisions of Article 2075 of the Civil Code regarding rights to receive movable assets, where third parties are able to exercise a right of attachment against the transferee only by notice of assignment served on the debtor.
Commercial instruments charged as security shall be recoverable by the secured creditor.
Article L521-2 All rights of priority shall in all cases be extinguished in respect of security where the same shall have been placed
and shall remain in the possession of the creditor, or of a third party by agreement between the parties. Creditors shall be deemed to have the goods in their possession where the same are at their disposal in their stores
or vessels, in a Customs warehouse or public depository, or where they are put in possession before the arrival thereof by means of a bill of lading or a waybill.
Article L521-3 If payment is not made in the due date, the creditor may, eight days after simple notice served on the debtor and
any third party holding a landlord's lien for rent, may sell the articles held as security at public auction. Sales other than those conducted by suppliers of investment services must be effected by brokers. Nevertheless,
the Presiding Judge of the Tribunal de commerce may at the parties' request appoint another type of public government official to conduct the sale.
The provisions of Articles L.322-9 to L.322-13 on public auctions shall apply to sales such as are referred to in the preceding paragraph.
Any clause purporting to authorise the creditor to appropriate or dispose of the security without observing the aforementioned formalities shall be void.
CHAPTER II Deposits in bonded warehouses Articles L522-1 to
L522-40
SECTION I Approval, assignment and cessation of operation Articles L522-1 to
L522-13
Article L522-1 Operators of warehouses in which manufacturers, traders, farmers or craftsmen store raw materials, merchandise,
foodstuffs or manufactured products must not issue negotiable security instruments or describe their establishments as general warehouses without having first obtained the appropriate authorisation from a prefect.
Article L522-2 A prefectorial order deciding the application for approval shall be made after consultations with the professional and
inter-professional bodies to be specified by the Order approved by the Conseil d'Etat issued for the implementation of this Chapter. The reasons for the decision must be stated.
Article L522-3 The assignment of a general warehouse shall be subject to authorisation by the prefect, granted in the same way..
Article L522-4 Any cessation of operation not followed by an assignment shall be subject to six months' prior notice, to be given by
the operator to the prefect. On the expiration of the said period, if general commercial interests so require, a temporary receiver may be appointed by the Presiding Judge of the Tribunal de grande instance, by an order made in emergency interim proceedings, on an application by the Procureur de la République.
Article L522-5 It shall be prohibited for operators of general warehouses to carry on, either directly or indirectly, either on their own
behalf or on that of another person, as agents on commission or in any other capacity, any business or speculation relating to merchandise for which they are authorised to issue warehouse warrants.
Article L522-6 Companies operating general warehouses shall be deemed to be subject to the rule contained in Article 522-5
where one of their shareholders, owning more than 10% of the share capital, carries on a form of business incompatible with the provisions of the said Article.
Article L522-7
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COMMERCIAL CODE Any operating company which, as a result of a change in the distribution of its share capital between shareholders,
no longer fulfils the conditions laid down in Article 522-6 must, within a month of the said change, apply for the renewal of its authorisation.
The said authorisation shall remain valid until the prefect shall have made an order deciding the application. The prefect may either order that the authorisation remain in force according to the conditions laid down in Article
522-11, or order the withdrawal thereof in accordance with the provisions of Article 522-39.
Article L522-8 Where the opening of an establishment is subject to a ministerial order or decree, the authorisation of the said
establishment as a general warehouse shall be granted by the said decree or order, after consultation with the bodies referred to in Article L.522-2.
Article L522-9 Operators of authorised establishments need not apply for the licence referred to in the rules governing the creation,
extension or transfer of establishments.
Article L522-10 Decrees or orders authorising establishments as general warehouses may include a licence for the operator to open
a public wholesale trading room.
Article L522-11 I. - Companies that fail to comply with the conditions laid down in Articles L.522-5 and L.522-6 may nevertheless
apply for authorisation for the warehouses they operate or propose to operate as general warehouses and obtain the said authorisation, by way of exception to the general rule, where it is recognised that commercial interests so require.
II - In any such case: 1. Notice of the application for authorisation must be publicly displayed at the prefecture and in the municipality of
the locality in question, in accordance with the regulations; 2. The authorisation order shall fix, in addition to the security specified in Article L.522-12, a special security at least
as regards the latter. The special security must be provided either in cash or by means of a bank guarantee authorised by the Tribunal de commerce in whose jurisdiction the establishment is situated.
Article L522-12 The prefectorial order authorising the opening of a general warehouse shall require the operator to provide security. The establishments referred to in Article L.522-8 shall be subject to the same obligation. The amount of the said security, which shall be proportionate to the surface area used for storage, shall be between
two limits to be fixed by an Order approved by the Conseil d'Etat.
Article L522-13 Operating conditions for the said establishments shall be fixed by one or more standard regulations in the context of
this Chapter and the Order approved by the Conseil d'Etat made to implement the said Chapter.
SECTION II Obligations, responsibilities and guarantees Articles L522-14 to
L522-19
Article L522-14 Any person depositing merchandise in a general warehouse must declare its nature and value to the operator.
Article L522-15 Operators of general warehouses shall be responsible, within the limits of the value declared, for the custody and
safe keeping of merchandise deposited with them. They shall not be liable for any natural damage or deterioration resulting from the nature and packaging of the
merchandise from cases of force majeure. The standard and specific regulations laid down in Articles L.522-13 and L.522-17 shall specify the obligations of
operators as regards the safe keeping of articles deposited.
Article L522-16 Merchandise capable of carrying a warranty must be insured against fire under the warehouse's general insurance
policy. Nevertheless, for operators of general warehouses situated at seaports, the said obligation shall be suspended as
regards deposits of merchandise covered by marine insurance for as long as the said insurance covers the relevant risks.
If a claim shall arise during the said period, the operator of the warehouse shall not be liable to depositors, insurance companies or warrant-holders.
On the expiration of the said period, the aforementioned merchandise shall must be insured under the warehouse's general policies.
Article L522-17 Every establishment must have its own specific regulations in addition to the general provisions of the standard
regulations, specifying conditions of operation in the light of the nature and situation of the warehouse.
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COMMERCIAL CODE Article L522-18
The regulations referred to in Article L.522-17 shall be accompanied by a general scale and, if appropriate, special scales of charges for storage, in accordance with the terms of this Chapter, and for services rendered to depositors. The appropriate fees shall be paid without distinction or favour.
Article L522-19 Scales of charges must be notified to the prefect at least a month before the opening of a general warehouse. Any change in the existing charges must be notified to the prefect and to the bodies referred to in Article L.522-2,
and shall not be enforceable until a month after the said notification. This period shall not, however, apply to operators whose charges are subject to Government licence.
SECTION III Operation and supervision Articles L522-20 to
L522-23
Article L522-20 Operators of general warehouses may lend on the security of a charge on merchandise deposited with them, or
trade in warrants representing the said merchandise.
Article L522-21 Chairmen, managers, directors and personnel of general warehouse undertakings shall be required to observe the
rules of professional secrecy in all matters relating to merchandise deposited with them, subject to the penalties laid down in Article 226-13 of the Penal Code.
Article L522-22 General warehouses shall be placed under Government control, according to conditions to be fixed by an Order
approved by the Conseil d'Etat.
Article L522-23 The provisions of this chapter, the order implementing the said provisions, the scales of charges and the regulations
must be displayed in the area of the warehouse offices to which the public has access.
SECTION IV Receipts and warrants Articles L522-24 to
L522-37
Article L522-24 One or more receipts shall be issued to each depositor. The said receipts shall state the name, occupation and
address of the depositor and the nature of the merchandise deposited and the appropriate indications identifying it and determining its value.
Fungible merchandise deposited in general warehouses against a receipt and a warrant may be replaced by merchandise of the same nature, type and quality. The possibility of such replacement must be mentioned on both the receipt and the warrant.
The rights and privileges of the bearer of the receipt shall be transferred to the merchandise substituted. A receipt and a warrant may be issued on a consignment of fungible merchandise to be taken in a larger
consignment.
Article L522-25 Each receipt must have attached to it a security instrument, known as a warrant, containing the same wording as
the receipt. Receipts for merchandise and warrants annexed thereto shall be taken from a counterfoil register.
Article L522-26 Receipts and warrants may be transferred by endorsement, together or separately.
Article L522-27 Transferees of a receipt or warrant may demand that the endorsement in their favour be transcribed on the
counterfoil registers from which they are extracted, with a note of their address.
Article L522-28 The endorsement of a warrant that has been separated from its receipt shall be treated as a charge on the
merchandise in favour of the transferee of the warrant. The endorsement of the receipt shall transfer the right to dispose of the merchandise to the transferee, who shall
thereby be rendered liable, where the warrant is not transferred with the receipt, for payment of the debt secured by the warrant or to allow the amount thereof to be paid out of the proceeds of sale of the merchandise.
Article L522-29 The endorsement of a warrant and receipt, whether transferred together or separately, must be dated. The endorsement of a warrant that has been separated from its receipt must also state the full amount, as to capital
and interest, of the debt secured, the payment date and the name, occupation and address of the creditor. The first
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COMMERCIAL CODE transferee of the warrant must immediately have the endorsement transcribed in the warehouse's record books, with its accompanying statements. A note of the said transcription must be endorsed on the warrant.
Article L522-30 The bearer of a receipt that has been separated from its warrant may, even before the expiration date, pay the debt
secured by the warrant. Where the bearer of the warrant is unknown or, if known, is not in agreement with the debtor as to the conditions of
early payment, the sum due, including interest up to the expiration date, shall be placed on deposit with the management of the general warehouse, which shall be responsible for it. The said deposit shall discharge the merchandise.
Article L522-31 If the debt shall not be paid on the due date, the bearer of a warrant that has been separated from its receipt may,
eight days after the issue of a protest, and without any legal formalities, have the merchandise secured sold wholesale at auction by public Government officials, in accordance with the provisions of Book III relating to the public wholesale auction of merchandise.
Where the original subscriber of the warrant has repaid the bearer, the latter may sell the merchandise, as mentioned in the preceding sub-paragraph, as against the bearer of the receipt, without notice eight days after the payment date.
Article L522-32 I. - Creditors shall have their debts repaid out of the price, directly and without any legal formality, by privilege and
preference over all creditors, without any deduction other than: 1. Indirect taxes and Customs duty payable on the merchandise; 2. Expenses of sale and storage and other expenses of safekeeping of the goods. II. - If the bearer of the receipt is not present at the time of the sale of the merchandise, any sum exceeding that due
to the bearer of the warrant shall be placed on deposit with the management of the general warehouse, as indicated in Article L.522-30.
Article L522-33 Bearers of warrants shall have no right of action against the borrower and the endorsers until they shall have
exercised his rights over the merchandise, and then only if the sum so realised is insufficient. The period fixed by Article L.511-42 for the exercise of the right of action against endorsers shall not begin to run
until the date on which the sale of the merchandise takes place. Bearers of warrants shall in any event forfeit their right of action against the endorsers if they fail to sell the
merchandise within a month of the date of the protest.
Article L522-34 The bearer of a receipt and a warrant shall have the same rights over any insurance monies payable in the event of
a claim as over the insured merchandise.
Article L522-35 Public credit institutions may receive warrants as commercial paper, one of the signatures required by their
Memorandum and Articles of Association being dispensed with.
Article L522-36 Any person losing a warrant or receipt may apply for a Court order for the issue of a duplicate, in the case of a
receipt, or for payment of the debt secured, in the case of a warrant, on producing documentary evidence of ownership and providing security.
If in any such case the subscriber of the warrant shall not have made payment on the due date, a third party bearer whose endorsement shall have been transcribed in the record books of the general warehouse may be authorised by a Court order to have the merchandise secured sold in accordance with the conditions laid down in Article L.522-31, subject to the provision of security.
The protest referred to in the said Article must provide copies of the relevant entries in the register of the general warehouse.
Article L522-37 In the event of a lost receipt, the security referred to in the preceding Article shall be discharged on the expiration of
a period of five years, where the merchandise charged shall not have been claimed by a third party against the general warehouse.
In the event of a warrant being lost, the security shall be discharged on the expiration of a period of three years from the date of transcription of the endorsement.
SECTION V Sanctions Articles L522-38 to
L522-40
Article L522-38 It shall prohibited to open or operate an establishment receiving merchandise on deposit for which negotiable
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COMMERCIAL CODE security instruments are issued to depositors, under the description of warrants or any other name, without the licence specified in Article L.522-1.
Any breach of this prohibition shall be render the perpetrator liable to a fine of 40,000 F and a year's imprisonment. The Court may order that the sentence be published in full or as to extracts thereof in such newspapers as it shall
appoint and displayed in such places as it shall indicate, particularly on the doors of the registered office and warehouses of the convicted party, at the latter's expense, but so that the expenses of such publication shall not exceed the amount of the fine incurred.
Article L522-39 In the event of a breach by the operator of a general warehouse of the provisions of this Chapter, or of Orders
approved by the Conseil d'Etat, the prefect may, having interviewed the operator and consulted the professional and inter-professional bodies referred to in Article L.522-2, make a temporary or permanent order for the withdrawal of that operator's authorisation.
In any such case, the Presiding Judge of the Court, sitting in emergency interim proceedings, shall, on an application by the Procureur de la République, appoint an interim manager and determine the said administrator's powers to operate the undertaking.
In the event of permanent withdrawal of the said authorisation, where the interests of local trade require that the general warehouse be kept open, the powers of the interim manager may include that of selling the business and goodwill thereof and the materials and equipment required to operate the warehouse at public auction.
An order may also be made for the permanent withdrawal of authorisation, after consultation with the professional and inter-professional bodies, from undertakings that have ceased to operate as general warehouses or depositories for at least two years.
Article L522-40 The conditions of application of the provisions of this Chapter shall be fixed by an Order approved by the Conseil
d'Etat.
CHAPTER III Pledge of hotel equipment and furniture Articles L523-1 to
L523-15
Article L523-1 Any hotel operator may borrow on the security of commercial fixtures and fittings, tools and equipment used for the
purposes of its operation, while retaining custody of the same on the hotel premises. Objects charged as security for the debt shall remain as security for the lender and the lender's successors in title
until the sums advanced shall have been repaid. Borrowers shall be responsible for the said objects which shall remain in their custody, and shall not be entitled to
plead any right of indemnity against the lender and the lender's successors in title.
Article L523-2 Hotel operators who are not owners or life tenants of the building in which they carry on their business must, before
taking any loan, give extra-judicial notice to the owner or life tenant of the business and goodwill they rent, or their legal agent, of the nature and value of the objects charged, and the amount to be borrowed. The said notice must be repeated by letter, through the Clerk of the Tribunal d'instance within whose jurisdiction the place of operation of the furnished hotel is located. The letter of notice must be delivered to the Clerk of the Court, who must approve and register it and send it on by registered business letter with recorded delivery.
The owner or life tenant or their legal agent, may, within fifteen clear days of the date of notice of the said act, object to the loan by extra-judicial notice to the Clerk of the Court, where the borrower has not paid any outstanding rent in arrears, six months' current rent and six months' rent to become due.
The borrower may have the objection removed by paying the said rent. If no reply by the owner or life tenant or their legal agent shall be received within the period fixed above it shall be
considered that they have no objection to the loan. The landlord's lien over the objects charged as security shall be reduced up to the amount of the sum advanced. It
shall subsist in law if the loan is granted notwithstanding the landlord's objection. The landlord may at any time waive either the objection or the payment of the aforementioned rent, by signing the
register referred to in Article L.523-3. In the event of any conflict between the right of priority of the bearer of a pledge of hotel equipment and furniture
and that of a mortgagee, their rank shall be determined by the respective dates of transcription of the first endorsement of the warrant and the registration of the mortgages.
Article L523-3 A counterfoil register, which must be duly compared and initialled, shall be kept in every Court Registry. Each
detachable sheet and counterfoil must contain wording, a list of which shall be fixed by decree, based on the borrower's statements.
The detachable sheet containing the said wording shall constitute a pledge of hotel equipment and furniture.
Article L523-4 Pledges of hotel equipment and furniture shall be issued by the Clerk of the Tribunal de commerce of the jurisdiction
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COMMERCIAL CODE within which the hotel is operated. A borrower who receives a pledge of hotel equipment and furniture shall give an acknowledgement of receipt for delivery of the certificate, by public credit institutions may receive pledges of hotel equipment and furniture as commercial paper, one of the signatures required according to their Memorandum and Articles of Association being dispensed with.
Article L523-10 Bearers of warrants shall have the same rights over the proceeds of insurance policies, in the event of a claim, as
over the insured property.
Article L523-11 Bearers of warrants must claim payment of their debts from the borrower when the same become due, and, in the
event of default on payment, may reiterate their claims against the debtor by registered letter with recorded delivery. If the warrant is not paid when due the said bearers shall have the rights to enforce their security as though they
were privileged or secured creditors under the terms of Articles L.143-5 to L.143-15. Nevertheless, the landlord's prior right may be exercised at any time in respect of up to six months rent in arrears,
six months' current rent and six months' rent to become due. Bearers who sell the property shall no longer be entitled to exercise their remedies against the endorsers or even
against the borrower until they shall have claimed their rights against the proceeds of sale of the articles covered by the warrant. Should the price be insufficient to repay the debt due to them, they shall have a period of three months from the date of sale to exercise their remedies against the endorsers.
Article L523-12 A debt owed to the bearer of a warrant shall be repaid directly out of the proceeds of sale, as a right of priority over
all other creditors, with no deductions other than direct taxes and sale expenses and with no formality other than an Order made by the Presiding Judge of the Tribunal de commerce.
Article L523-13 A false declaration or any attempt by a borrower to create a warrant over objects not owned by the said borrower, or
already charged as security, or any act of embezzlement, dissipation or deliberate damage to security charged to a creditor, to the detriment of the latter, shall be punishable by the penalties prescribed for embezzlement or abuse of trust, in Articles 313-1, 313-7, 313-8 or 314-1 and 314-10 of the Penal Code.
Article L523-14 The fees payable to the Clerk of the Court shall be fixed by Order approved by the Conseil d'Etat. The notices stipulated by the provisions of this Chapter must be sent in the form of a registered business letter, at
the appropriate rate.
Article L523-15 Any agreements that run contrary to the provisions of this Chapter, and particularly any stipulations that would
adversely affect the right of tenants to create pledges of hotel equipment and furniture, shall be considered null and void.
CHAPTER IV Oil warrant Articles L524-1 to
L524-21
Article L524-1 Operators and holders of stocks of crude oil or petroleum products may issue stock warrants as security for their
borrowing, while retaining custody thereof at their plants or depots. Products subject to warrants shall remain security for the holder of the warrant until repayment of the sums
advanced. Warrants must be expressed to cover a certain quantity of merchandise of a specific quality, but products subject to
warrants need not be physically separated from other similar products held by the borrower. Borrowers shall be liable for the merchandise in their care and custody and shall not be entitled to plead any right of
indemnity against the benefit of the warrant.
Article L524-2 To create the document known as an"oil warrant", the Clerk of the Tribunal de commerce of the district where the
products to be comprised in the warrant are located shall register, according to the borrower's declarations, the nature, quality, value and location of the products to be charged as security for the loan, the total sums borrowed, and the particular clauses and conditions relating to the oil warrant, as agreed between the parties.
The warrant must be signed by the borrower. It shall be valid for a maximum of three years, but may be renewed.
Article L524-3 The warrant must indicate whether or not the product to which it relates is insured, and, if so, the name and address
of the insurer. Lenders shall be empowered to maintain the said insurance until the warrant is paid. Bearers of warrants shall have the same rights and privileges over the insurance monies in the event of a claim as
they have over the insured products.
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COMMERCIAL CODE Article L524-4
The Clerk of the Tribunal de commerce shall issue to any applicant a list of warrants registered for more than five years in the name of the borrower or a certificate confirming that there are no entries in the register.
Article L524-5 Registrations of warrants shall be cancelled on production of evidence either of repayment of the debt secured by
the warrant, or of a legal release. Borrowers who have repaid their warrants must have the said repayment recorded by the Clerk of the Tribunal de
commerce. A note of the repayment or release shall be entered in the register referred to in Article 524-3. A certificate of cancellation of the entry shall be issued to them.
Entries shall be automatically cancelled after five years, unless renewed before the end of the said period. If an entry is re-registered after automatic cancellation, it shall be valid as against third parties only from the new date.
Article L524-6 The borrower shall retain the right to sell the products to which the warrant relates by amicable agreement before
payment of the debt, even without the lender's participation in the sale. Nevertheless, the products may not be delivered to the purchaser until the creditor has been paid.
Even before the payment date, the borrower may repay the debt secured by the oil warrant. If the bearer of the warrant shall refuse the debtor's offers, the debtor may obtain discharge by placing the sum offered on deposit in accordance with the conditions laid down in Articles 1426 to 1429 of the New Code of Civil Procedure. Offers must be made to the last known successor in title by notice to the Registry at the Tribunal de commerce, in accordance with Article L.524-8. On production of a sufficient legal receipt for the said deposit the Presiding Judge of the competent Tribunal de commerce for the district where the warrant is registered shall make an order under the terms of which the security shall be transferred to the sum placed on deposit.
In the event of early repayment of an oil warrant, the borrower shall have the benefit of the interest still to accrue up to the expiration date of the warrant, less ten days.
Article L524-7 Public credit institutions may receive warrants as commercial paper, one of the signatures required by their
Memoranda and Articles of Association being dispensed with.
Article L524-8 Oil warrants shall be transferable by endorsement. Endorsements must be dated and signed and must state the
names, occupations and addresses of the parties. All those who shall have signed or endorsed a warrant shall be jointly and severally liable to the bearer. A discounter or re-discounter of an oil warrant must give notice to the Registry of the Tribunal de commerce within
eight days, by registered letter with recorded delivery, or verbally against an acknowledgement of receipt of the notice. The borrower may, by a special note endorsed on the warrant, exempt the discounter or re-discounter from giving
the said notice, in which case, however, the provisions of the final sub-paragraph of Article L.524-6 shall not be applicable.
Article L524-9 Bearers of oil warrants must claim payment of their debts by the borrower on the due date, and, in the event of
default, must record and restate their claims against the debtor by registered letter with recorded delivery. If they shall not receive payment within five days of the despatch of the said letter, bearers of oil warrants must
lodge a formal complaint of default on payment, fifteen clear days after the payment date, by notice to each of the endorsers, sent to the Registry of the Tribunal de commerce, which shall give the bearer an acknowledgement of receipt for the said notice; failure to do shall result in forfeiture of the bearer's rights against the endorsers. The Registry of the Tribunal de commerce shall notify the endorsers of the said notice within a week thereafter, by registered letter with recorded delivery.
Article L524-10 In the event of a refusal to pay, the bearer of the oil warrant may, fifteen days after the date of the registered letter
to the borrower, as mentioned above, have the merchandise to which the warrant relates sold by a civil servant or public Government official at public auction. Power to do so shall be conferred on the bearer by an order made by the Presiding Judge of the Tribunal de commerce of the district where the said merchandise is located, on an ex parte application, fixing the date, place and time of the sale. The said details shall be announced at least eight days in advance by notices displayed in the places indicated by the Presiding Judge of the Tribunal de commerce, who may in all cases authorise the publication thereof in the newspapers. Publication shall be recorded by means of a note inserted in the minutes of the sale.
Article L524-11 The public Government official responsible for the sale shall notify the debtor and the endorsers of the date, place
and time of the sale eight days in advance thereof. The borrower may nevertheless agree, by means of a special note endorsed on the oil warrant, that there need not
be a sale by public auction, and that the sale may be arranged by amicable agreement. In such a situation, the sale must always be authorised by an Order of the Presiding Judge of the Tribunal de commerce of the district where the merchandise to which the warrant relates is located, made on an ex parte application.
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COMMERCIAL CODE Article L524-12
The provisions of Article 53 of Law no. 91-650 of 9 July 1991 amending the civil-law enforcement procedures shall apply to sales effected pursuant to the provisions of this Chapter.
Article L524-13 Debts due to bearers of warrants shall be paid directly out of the sale proceeds, by right of priority and preference
over all creditors, after deduction of the sale expenses, and with no formalities other than an Order of the Presiding Judge of the Tribunal de commerce.
Article L524-14 Bearers of oil warrants who sell the merchandise to which the warrant relates, in accordance with Articles L.524-9 to
L.524-11, shall no longer be entitled to exercise their remedies against the endorser or even against the borrower, until they shall have claimed their rights against the sale proceeds of the said products. Should the said proceeds be insufficient to repay the debt due to them, they shall have a period of a month from the date of sale of the merchandise to exercise their right of action against the endorsers.
Article L524-15 Should there be any discrepancy between the existing merchandise and the quantity or quality of that to which the
warrant relates, the lenders may immediately give the holder of the oil warrant notice, by registered letter with recorded delivery, either to reconstitute the security within forty-eight hours of receipt of the registered letter, or to repay some or all of the sums secured by the oil warrant within the same period of time. If not satisfied, the lenders shall be entitled to demand full repayment of the debt, which they shall consider as having become due and payable.
In any such case, the borrower shall forfeit the benefit of the provisions of the final sub-paragraph of Article L.524-6, relating to the repayment of interest.
Article L524-16 In the event of a fall of 10% or more in the value of the stock to which the warrant relates, the lenders may give the
borrowers notice, by registered letter with recorded delivery, either to increase the security or to repay a proportion of the sums advanced. In the latter case, the provisions of the final sub-paragraph of Article 524-6 shall apply.
If the said demand shall not be satisfied within eight clear days, the lenders shall be entitled to demand full repayment of the debt, which they shall consider as having become due and payable.
Article L524-17 Any borrower who shall have made a false declaration, or shall have constituted an oil warrant on products already
charged under a warrant, without first notifying the new lender, or any borrower or depository who shall have embezzled, dissipated or deliberately damaged the creditor's security to the latter's detriment, shall be subject to the penalties laid down in Articles 313-1, 313-7 and 313-8 or 314-1 and 314-10 of the Penal Code.
Article L524-18 Where it is necessary to make an application to a Judge sitting in emergency interim proceedings in order to
enforce the provisions of this Chapter, the said proceedings shall be held before the Presiding Judge of the Tribunal de commerce of the district where the merchandise to which the warrant relates is located.
Article L524-19 The total fees payable to the Clerk of the Tribunal de commerce in respect of oil warrants shall be as fixed by the
Decree governing oil warrants. The said sum may nevertheless be revised by a specific Decree relating to oil warrants. The notices stipulated by the provisions of this Chapter must be sent in the form of recommended business letters
at the appropriate rate.
Article L524-20 The provisions of this Chapter shall be applicable subject to the obligations imposed by Law no. 92-1443 of 31
December 1992, amending the petroleum regulations, particularly as regards the constitution and apportionment of stock and without prejudice to the possible liability of operators in case of infringement.
Article L524-21 This Chapter shall be applicable in the departments of Haut-Rhin, Bas-Rhin and Moselle, subject to the special
provisions of the Law of 1 June 1924 introducing French commercial law in the said three departments. The Registries with competence to constitute oil warrants shall be those indicated in Article 35 of the said Law for
the constitution of oil warrants.
CHAPTER V Charge on tooling and equipment Articles L525-1 to
L525-20
Article L525-1 Payment of the purchase price of professional tooling and equipment may be secured either by the seller, or by a
lender who advances the necessary funds to pay the seller, by a restricted charge on the tooling or equipment so purchased.
Where the purchaser is a trader, the said charge shall be governed, subject to the provisions hereinafter contained, by the rules laid down by Chapters II and III of Title IV of Book I. It shall not be necessary to include the essential
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COMMERCIAL CODE elements of the business and goodwill in the charge.
Where the purchaser is not a trader, the charge shall be governed by the provisions of Article L.525-16.
Article L525-2 The charge shall be created by deed or unattested document, registered at the fixed fee. Where it is given to the seller, it shall be recorded in the sale document. Where it is given to a lender who advances the necessary funds to pay the seller, the charge shall be recorded in
the loan document. The said document must state that the monies advanced by the lender must be used to pay the price of the assets
purchased, failing which it shall be void. The assets purchased must be listed in the body of the deed and each asset must be precisely described in order to
identify it in relation to other assets of the same type belonging to the business. The deed must also indicate the place where the assets are permanently installed or, if they are not so installed, must indicate that they may be moved from place to place.
Guarantors acting as sureties or endorsers in the grant of loans for equipment shall be regarded as equivalent to lenders of funds. Such persons shall automatically be subrogated to the creditors' rights. The same rule shall apply to persons who endorse, discount, guarantee or accept bills created in representation of the said loans.
Article L525-3 Charges must be completed by no later than two months after the date of delivery of the equipment at the premises
where it is to be installed, failing which they shall be void. Similarly, charges shall be void if not registered within fifteen days of the execution of the deed of charge in
accordance with the conditions laid down in Articles L.142-3 and L.142-4. Where the equipment is delivered after the contractual date, if delivery shall not take place at the site originally
agreed, registered debts shall become automatically enforceable unless the debtor shall have notified the secured creditor of the date or place of delivery within fifteen days thereafter.
A charge shall not be binding on third parties if, within fifteen days of receiving notice or of becoming aware of the date or place of delivery, the secured creditor shall not have requested the Clerk of the Court where the charge is registered to note the said date or place in the margin against the relevant entry in the register.
Article L525-4 Assets charged pursuant to this Chapter may, furthermore, at the secured creditor's request, be clearly marked on
an essential part with a permanently fixed notice indicating the place, date and registration number of the preferential charge to which they are subject.
The debtor must not impede the apposition of the said mark, subject to the penalties laid down in Article L.525-19, nor may marks so affixed be destroyed, removed or covered before the preferential charge in favour of the secured creditor shall have been extinguished or cancelled.
Article L525-5 Any agreed subrogation to the benefit of the charge must be noted in the margin against the relevant entry in the
register within fifteen days of the date of the deed or unattested document recording the same, on delivery to the Clerk of the Court of an original or office copy of the said deed.
Any conflicts that may arise between owners of successively registered charges shall be settled in accordance with Article 1252 of the Civil Code.
Article L525-6 The benefit of the charge shall be automatically transferred to the successive bearers of the bills thereby
guaranteed, in accordance with Article 1692 of the Civil Code, whether the said bills shall have been subscribed or accepted to the order of the seller or a lender who has provided all or part of the price, or whether they more generally represent the mobilisation of a validly secured debt pursuant to the provisions of this Chapter.
Where more than one bill is created to represent the debt, the right of priority attached thereto shall be exercised by the first party to sue on it, on behalf of all and for the full amount.
Article L525-7 Subject to the penalties laid down in Article L.525-19, a debtor who, before payment or repayment of the sums
secured in accordance with this Chapter, seeks to sell by amicable agreement all or part of the assets charged must obtain the prior consent of the secured creditor, or, failing that, an Order made by a Judge of the Tribunal de commerce, sitting in emergency interim proceedings, and ruling at final instance.
Where the requirements as to publication laid down by this Chapter have been satisfied and the assets charged have been marked with a notice in accordance with Article L.525-4, the secured creditor or those subrogated to his rights shall have the benefit if the right to follow the assets in order to exercise the preferential rights conferred by the charge, as provided by Article L.143-12.
Article L525-8 The prior rights of a secured creditor holding a charge created pursuant to the provisions of this Chapter shall
subsist if the asset secured becomes a fixed asset. Article 2133 of the Civil Code shall not apply to assets so charged.
Article 2133 of the Civil Code shall not apply to assets so charged.
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COMMERCIAL CODE
Article L525-9 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
I. - The lien of a secured creditor under the provisions of the present Chapter applies to encumbered property in preference to all other liens, with the exception of:
1. The lien in respect of court fees; 2. The lien in respect of the fees for safe custody of the property; 3. The lien granted to employees by Article L. 143-10 of the Labour Code. II. - It is exercised, specifically, against any mortgagee and in preference to the lien of the Trésor public, to the lien
referred to in Article L. 243-4 of the Social Security Code, to the lien of the vendor of a business which makes use of the encumbered property, and also to the lien of the secured creditor over the entirety of the said business.
III. - However, in order for his lien to be binding on the mortgagee, on the vendor of the business, and on the secured creditor in respect of the entirety of the said business, relative to their prior registrations, the beneficiary of the pledge entered into pursuant to the present Chapter must deliver to the said creditors via an extrajudicial process a copy of the instrument which formally recorded the pledge. In order to be valid, such delivery must take place within two months of the pledge being given.
Article L525-10 Subject to the exceptions specified in this Chapter, the rights of chargees shall be governed by the provisions of
Book I, Title IV, Chapter III as regards registration formalities, creditors' rights in the event of relocation of a business, the rights of the landlord of the building, the cancellation of the said rights of priority and the release formalities.
Article L525-11 Registration shall maintain the right of priority for five years from the date of completion of the charge. It shall simultaneously secure two years' interest in addition to the principal sum. It shall cease to have effect unless
it is renewed before the aforementioned period expires; it may be renewed twice.
Article L525-12 A certificate of existing entries in the register, issued pursuant to Article 32 of the Law of 17 March 1909 relating to
sales and charges of a business and goodwill, must include entries registered pursuant to the provisions of this chapter. Applicants may also receive on request a certificate attesting to the existence or non-existence of entries relating to the relevant assets registered pursuant either to the provisions of Chapters I and II of Title IV of Book I, or to those of this Chapter.
Article L525-13 Notice of legal proceedings to obtain the enforced liquidation of certain assets of the business and goodwill to which
assets subject to the prior rights of a seller or secured creditor pursuant to the provisions of this Chapter belong, given in accordance with Article L.143-10, shall render the debts secured by the said rights of priority enforceable.
Article L525-14 In the event of non-payment on the due date, a creditor having the benefit of the rights of priority established by this
Chapter may sue for the realisation of the asset charged therewith, in accordance with the conditions laid down in Article L.521-3. The public Government official responsible for the sale shall be appointed, at the said creditor's request, by the Presiding Judge of the Tribunal de commerce. The creditor must comply with the provisions of Article L.143-10 before the sale takes place.
Such a secured creditor shall be entitled to exercise the rights relating to the ten per cent overbid referred to in Article L.143-13.
Article L525-15 Assets charged pursuant to this Chapter, where an action is brought for the sale thereof together with other items
comprised in the business and goodwill, shall be subject to a separate reserve or sale price where the schedule of conditions requires the party to whom they are awarded to submit them to expert opinion.
In all such cases, sums realised on the sale of the said assets shall, before any distribution takes place, be allocated to holders of registered charges, up to the amount of the principal, interest and expenses thereby secured.
Acknowledgements of receipt by privileged creditors shall be subject to the fixed fee only.
Article L525-16 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
If the buyer is not a registered trader, the pledge is subject to the provisions of Articles L. 525-1 to Article L. 525-9, L. 525-11 and L. 525-12 and of the present Article. The registration provided for in Article L. 525-3 is then effected at the clerk's office of the commercial court ??having jurisdiction at the place where the buyer of the encumbered property is domiciled.
If payment is not effected when due, the creditor holding the lien established by the present Chapter may arrange for the encumbered property to be sold at public auction pursuant to the provisions of Article L. 521-3.
Registrations are struck out either with the consent of the interested parties, or by virtue of a judgment with force of res judicata.
In the absence of a judgment, the registrar cannot effect a total or partial striking off unless a notarially recorded instrument containing the creditor's consent thereto is duly filed.
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COMMERCIAL CODE When a striking off to which the creditor has not consented is sought via a main action, that action is brought before
the commercial court having jurisdiction at the place where the registration was effected. Striking off is effected by means of a notation placed in the margin of the registration by the registrar. Certification thereof is issued to the parties who so request.
Article L525-17 For the purposes of the provisions of this Chapter, Clerks shall be subject to the formalities and responsibilities fixed
by regulation for the maintenance of the register of charges and the issue of statements and certificates on request. Their fees shall be fixed as provided by the current regulations.
Article L525-18 The provisions of this Chapter shall not apply: 1. To motor vehicles as mentioned in Decree no. 53-968 of 30 September 1953; 2. To sea-going vessels and river boats as mentioned in Articles 78 et seq. of the Code of Public Waterways and
Inland Navigation; 3. To aircraft as mentioned in Articles L.110-1 et seq. of the Code of Civil Aviation.
Article L525-19 Any purchaser or holder of assets charged pursuant to this Chapter who shall destroy or attempt to destroy,
embezzle or attempt to embezzle, or damage or attempt to interfere in any way with the said assets with the object of frustrating the creditor's rights, shall be liable to the penalties laid down for fraudulent conversion in Articles 314-1 and 314-10 of the Penal Code.
Any fraudulent manoeuvres designed to frustrate a creditor's prior rights over the assets charged, or to reduce the extent of the said rights, shall be subject to the same penalties.
Article L525-20 The conditions of implementation of the provisions of this Chapter shall be determined by an Order approved by the
Conseil d'Etat.
CHAPTER VI Protection of the Individual Businessman and his Spouse Articles L526-1 to
L526-4
Article L526-1 (inserted by Law No. 2003-721 of 1 August 2003 Article 8 Official Gazette of 5 August 2003)
Contrary to Articles 2092 and 2093 of the Civil Code, a natural person whose name appears in an occupational legal publications register or who is engaged in an agricultural or independent business may declare his rights over the real property which constitutes his principal place of residence to be exempt from seizure. The said declaration, which is published in the Mortgage Registry or, in the departments of Bas-Rhin, Haut-Rhin and Moselle, in the Land Registry, is effective only against creditors whose rights issue from the declarant's business activities subsequent to publication.
If the property houses the business premises as well as the living accommodation, the portion thereof used as the principal place of residence can be declared only if it is designated as such in a description of the division of the property.
Article L526-2 (inserted by Law No. 2003-721 of 1 August 2003 Article 8 Official Gazette of 5 August 2003)
The declaration, executed in the presence of a notary if it is not to be declared null and void, contains a detailed description of the property and an indication as to whether ownership thereof is separate, joint or undivided. The document is published in the local Mortgage Registry or, in the departments of Bas-Rhin, Haut-Rhin and Moselle, in the Land Registry.
If the person's name appears in an occupational legal publications register, the declaration must be referenced therein.
If the person is not required to be registered in a legal publications register, an abstract of the declaration must be published in a periodical available in the department in which the business activity is conducted which carries official notices if that person is to avail himself of the benefit of the first paragraph of Article L. 526-1.
The drafting of the declaration referred to in the first paragraph and completion of the formalities give rise to the payment to notaries of fees for which the ceiling is determined by decree.
Article L526-3 (inserted by Law No. 2003-721 of 1 August 2003 Article 8 Official Gazette of 5 August 2003)
In the event of the real property rights indicated in the initial declaration being sold, the sum received therefor shall remain exempt from seizure in regard to creditors whose debts issue from the declarant's business activities subsequent to publication of that declaration, on condition that the declarant reuses it within one year to acquire real property in which his principal place of residence is located.
If the title deed contains a reuse of funds declaration, the rights to the newly acquired principle place of residence remain exempt from seizure by the creditors referred to in the first paragraph in proportion to the sum reused.
The reuse of funds declaration is subject to the conditions of validity and enforceability provided for in Articles L. 526-1 and L. 526-2.
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COMMERCIAL CODE The declaration may, at any time, be the subject of a relinquishment subject to the same conditions of validity and
enforceability. The declaration remains effective after dissolution of the marriage settlement if the declarant is the recipient of the
property. The decease of the declarant entails revocation of the declaration.
Article L526-4 (inserted by Law No. 2003-721 of 1 August 2003 Article 8 Official Gazette of 5 August 2003)
When a natural person married under a legal or contractual marriage settlement applies for registration in an occupational legal publications register, he must prove that his spouse has been duly informed of the consequences that the debts contracted through his business activities could have on the marital property.
A Conseil d'Etat decree stipulates the present Article's implementing provisions, inasmuch as this is required.
BOOK VI Businesses in difficulty Articles L611-1 to
L610-1 Article L610-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 2, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
A Conseil d'Etat decree shall determine in each département (subdivision of France) the court or courts shall have jurisdiction to rule upon the proceedings provided for in this Book and the territorial jurisdiction in which these courts will exercise the powers attributed to them.
TITLE I Prevention of businesses' difficulties Articles L611-1 to
L612-5
CHAPTER I Prevention of businesses' difficulties, special commission (mandat ad hoc) and
composition procedure Articles L611-1 to L611-15
Article L611-1 (Act No 2003-721 of 1 August 2003, Article 10, Official Journal of 5 August 2003) (Act No 2005-845 of 26 July 2005, Article 1, Article 3, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Any person registered with the Register of Commerce and Companies or the craftsmen's register as well as private law entities may join a prevention group accredited by an order of the State representative in the region.
This group shall provide its members with a confidential analysis based on the economic, accounting and financial data that they must send it regularly.
Where the prevention group identifies signs of difficulty, it will inform the head of the business and may suggest that an expert provides assistance.
On motion of the State's representative, the competent public authorities shall give assistance to the accredited prevention groups. The Banque de France may also, as stipulated in an agreement, be invited to give its opinion on the financial situation of member businesses. Accredited prevention groups may also receive grants from local authorities.
Accredited prevention groups may enter into agreements with credit institutions and insurance companies in favour of their members.
Article L611-2 (Act No 2005-845 of 26 July 2005, Article 1, Article 4, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I. - Where any deed, document or proceedings shows that a commercial company, an economic interest grouping or a sole ownership, running a trading or a craftsman's business, encounters difficulties that may undermine the continuation of its business operations, its managers may be summoned by the president of the Tribunal de commerce (Commercial court) to determine the appropriate steps necessary to remedy the situation.
At the end of this meeting or if the managers have not come to the meeting, the president of the court may, notwithstanding any statutory or regulatory provision to the contrary, obtain information enabling him to know the debtor's accurate economic and financial situation from statutory auditors, members and representatives of the personnel, public authorities, social security bodies and provident institutions and the bodies responsible for the centralisation of information on banking risks and payment incidents.
II - Where the managers of a commercial company do not file annual accounts within the time limits provided for by the applicable legal provisions, the president of the court may summon them to do so promptly, by means of an injunction accompanied by a periodic pecuniary penalty.
If this injunction is not complied with within the time limit provided for by a Conseil d'Etat decree, the president of the court may also enforce the provisions of the second paragraph of (I) above against the managers.
Article L611-3 (Act No 2005-845 of 26 July 2005, Article 1, Article 5, Official Journal of 27 July 2005, in force on 1 January 2006
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COMMERCIAL CODE subject to Article 190)
The president of the Tribunal de commerce (Commercial court) or of the Tribunal de grande instance (High court) may, at the request of the business's representative, appoint a special commissioner (mandataire ad hoc) whose duties he shall set out.
Article L611-4 (Act No 2005-845 of 26 July 2005, Article 1, Article 5, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
A composition procedure is instituted before the Tribunal de commerce (Commercial court) for the persons who carry out a commercial or craftsman's activity, who encounter an actual, or a foreseeable legal, economic or financial difficulty, and who have not been in a state of cessation of payments for more than forty-five days.
Article L611-5 (Act No 2005-845 of 26 July 2005, Article 1, Article 5, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The composition procedure shall be applicable, under the same conditions, to private law entities and to natural persons running an independent professional activity, including independent professional persons with a statutory or regulated status or whose designation is protected. For the implementation of this article, the Tribunal de grande instance (High court) shall have jurisdiction and its president shall have the same powers as those attributed to the president of the Tribunal de commerce (Commercial court).
The composition procedure shall not apply to farmers as they are subject to the procedure provided for in Articles L351-1 to L351-7 of the Rural Code (règlement amiable).
Article L611-6 (Act No 2005-845 of 26 July 2005, Article 1, Article 5, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The debtor shall file its case with the president of the court, stating therein its economic, employment and financial situation, financing needs and, if necessary, the means to tackle them.
In addition to the powers attributed to him by the second paragraph of Article L611-2 (I), the president of the court may appoint an expert of his choice to draw up a report on the debtor's economic, employment and financial situation and, notwithstanding any statutory or regulatory provision to the contrary, obtain all information enabling him to know the debtor's accurate economic and financial situation from banking and financial institutions.
The composition proceedings shall be commenced by the president of the court who shall appoint a conciliator for a period not exceeding four months but that he may, through a reasoned ruling, extend by one month at the most when so requested by the conciliator. The debtor may propose a conciliator to be appointed by the president of the court. At the end of this period, the conciliator's duties and the proceedings shall come automatically to an end.
The order commencing the composition proceedings shall not be subject to appeaLIt shall be notified to the Public prosecutor. Where the debtor runs an independent professional activity with a statutory or regulated status or whose designation is protected, the order will also be notified to the relevant supervisory body or authority, if any.
The debtor may object to the conciliator under the conditions and in the time limits to be fixed by a Conseil d'Etat decree.
Article L611-7 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 6, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The conciliator's duty is to promote the conclusion of an amicable agreement between the debtor and its main creditors as well as, if applicable, its usual contracting partners, which is intended to put an end to the business's difficulties. He may also make any proposals for the safeguarding of the business, the continuation of the economic activity and the maintenance of employment.
For this purpose, the conciliator may obtain all useful information from the debtor. The president of the court shall transmit to the conciliator all information in his possession and, if applicable, the results of the investigation referred to under the second paragraph of Article L611-6.
Financial authorities, social security bodies, institutions managing the unemployment insurance system provided for by Articles L 351-3 and following of the Labour Code and institutions governed by Book IX of the Social Security Code may consent to a cancellation of debt under the conditions provided for by Article L626-6 of this Code.
The conciliator shall inform the president of the court of the progress of his duties and state all relevant comments on the debtor's performance.
If, during the proceedings, the debtor is sued by a creditor, the judge who has commenced the proceedings may, at the debtor's request and after having been informed regarding the situation by the conciliator, apply Articles 1244-1 to 1244-3 of the Civil Code.
Where it is impossible to reach an agreement, the conciliator will promptly present a report to the president of the court, who shall terminate the conciliator's duties and the composition proceedings. The president's decision shall be notified to the debtor.
Article L611-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 7, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
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COMMERCIAL CODE I - Upon the joint petition of the parties, the president of the court shall record their agreement and make it
enforceable. He shall rule upon the case based on the debtor's certified statement attesting that he was not in a state of cessation of payments at the time the agreement was entered into or that the agreement has put an end to the state of cessation of payments. The decision recording the agreement shall not be subject to publication formalities and shall not be appealed against. The agreement shall terminate the composition proceedings.
II - However, at the debtor's request, the court shall approve the agreement obtained if the following conditions are met:
1°. the debtor is not in a state of cessation of payments or the agreement puts an end to it; 2°. the terms of the agreement should normally ensure the continuity of the business's activity; 3°. the agreement does not harm the interests of non-signatory creditors, without prejudice to the application of
Articles 1244-1 to 1244-3 of the Civil Code.
Article L611-9 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 7, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court shall rule upon the approval of the agreement after having heard or duly summoned to the judge's chambers, the debtor, the creditors who are party to the agreement, the representatives of the works council or, in the absence of a works council, the employee delegates, the conciliator and the Public prosecutor. The supervisory body or, if any, relevant authority of a debtor who runs an independent profession with a statutory or regulated status or whose designation is protected, shall be heard or summoned under the same conditions.
The court may hear any other person whose hearing that it deems usefuL
Article L611-10 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 7, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The approval of the agreement shall terminate the composition proceedings. Where the debtor is subject to a statutory audit of its accounts, the approved agreement will be transmitted to the
statutory auditor. The approval decision shall be filed with the clerk's office, where any interested party may consult it, and be published. The approval decision shall be subject to third-party proceedings within ten days from its publication. A decision to refuse to approve the agreement shall not be published. It shall be subject to appeaL
The approved agreement shall stay, during its performance period, all suits and actions filed by creditors individually relating to movable property as well as immovable property of the debtor for the payment of claims referred to in the agreement. It shall interrupt, for the same period, the time limits given to creditors that are parties to the agreement, under the penalty of loss or termination of rights attached to the claims stipulated in the agreement. Co-obligors and persons who are bound by a surety bond or an independent guarantee may avail themselves of the provisions of the approved agreement.
The approved agreement shall lead to the automatic removal of any prohibition from issuing cheques, imposed in compliance with Article L131-73 of the Monetary and Financial Code after rejection of a cheque issued prior to the commencement of the composition proceedings.
Upon a petition by one of the parties to the approved agreement, the court, if it observes non-performance of the obligations emanating from the agreement, shall pronounce the rescission of the latter as well as the loss of any grace period granted.
Article L611-11 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 8, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If safeguard proceedings, reorganization proceedings or liquidation proceedings as a result are commenced, those persons who, under the approved agreement referred to under Article L611-8 (II), have made a contribution of fresh funds to the debtor in order to ensure the continuation and long-term future of the business's activity will be paid, up to the amount of this sum, according to their preferential lien before all other claims prior to the commencement of the composition proceedings, according to the rank fixed under Article L622-17(II) and Article L641-13(II). Under the same conditions, those persons who, in the approved agreement, supply new assets or services in order to ensure the continuation and long-term future of the business will be paid, for the amount of the price of the assets or services, according to their preferential lien before all claims born prior to the commencement of the composition proceedings.
This provision shall not apply to contributions made by shareholders or partners in the form of a capital increase. Creditors that are signatories to the agreement may not benefit directly or indirectly from this provision in respect of
their contributions prior to the commencement of the composition proceedings.
Article L611-12 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 9, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The commencement of safeguard, reorganization or liquidation proceedings shall automatically terminate the agreement recognised or approved in compliance with Article L611-8. In this case, the creditors will recover all their claims and guarantees, after deduction of sums received, without prejudice to the provisions of Article L611-11.
Article L611-13 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 10, Official Journal of 27 July 2005, in force on 1 January
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COMMERCIAL CODE 2006 subject to Article 190)
The duties of a special commissioner (mandataire ad hoc) or those of the conciliator may not be carried out by any person who has received during the last twenty-four months remuneration or payment from the debtor, from any of the debtor's creditors or from a person who controls or is controlled by the debtor within the meaning of Article L233-16 (of the present Code), for whatever reason, directly or indirectly, other than remuneration or payment for a special commission (mandat ad hoc) or duties in connection with an amicable settlement or a composition carried out in favour of the same debtor or the same creditor. The person thus appointed must attest on his honour, at the moment of acceptance of his duties, that he complies with these prohibitions.
The duties of the special commissioner or those of the conciliator may not be entrusted to any Tribunal de commerce (Commercial court) judge who is either in office or who has left office within the previous five years.
Article L611-14 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 10, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Having obtained the debtor's approval, the president of the court shall determine the conditions of remuneration of the special commissioner, the conciliator and, if necessary, the expert, at the time of their appointment, on the basis of the work entailed in performing their duties. Their remuneration shall be fixed by order of the president of the court on completion of their duties.
Appeals against these decisions shall be filed with the First president of the court of appeal within a time limit to be fixed by a Conseil d'Etat decree.
Article L611-15 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 10, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Any person who has taken part in the composition proceedings or in a special commission (mandat ad hoc) or who, by virtue of his duties, knows about these shall be bound by a duty of confidentiality.
CHAPTER II Provisions applicable to not-for-profit private law entities engaged in economic
activities Articles L612-1 to L612-5
Article L612-1 (Act No 2003-706 of 1 August 2003, Article 116, Official Journal of 2 August 2003) (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 11 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Not-for-profit private law entities engaged in economic activities whose number of employees, sales turnover net of tax or current revenues and total balance sheet assets or liabilities exceed(s), in respect of two of these criteria, the thresholds fixed by a Conseil d'Etat decree, must draw up an annual balance sheet, income statement and notes. The methods and conditions for establishing these documents shall be fixed by a decree.
These legal entities must appoint at least one statutory auditor and one deputy statutory auditor. For agricultural co-operatives and common-interest agricultural companies not organised under commercial law,
where they do not call on registered statutory auditors, this requirement may be met by using the services of an institution accredited under the provisions of Article L527-1 of the Rural Code. The conditions for the application of this provision shall be specified in a Conseil d'Etat decree.
The penalties provided for in Article L242-8 shall apply to the managers of the legal entities provided for in the first paragraph of this article who do not draw up an annual balance sheet, income statement and notes.
Even if the thresholds provided for in the first paragraph have not been reached, not-for-profit private law entities engaged in economic activities may appoint at least one statutory auditor and one deputy under the same conditions as in the second paragraph. In this case, the statutory auditor and his deputy shall be subject to the same obligations, face the same civil and criminal liabilities and have the same powers as if they were appointed in accordance with the first paragraph.
Article L612-2 (Act No 2005-845 of 26 July 2005, Article 1, Article 11 II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Not-for-profit private law entities engaged in economic activities whose either the number of employees or the sales turnover net of tax or total balance sheet assets or liabilities exceed(s) the thresholds fixed by a Conseil d'Etat decree must draw up a statement of the quick assets, excluding inventories, and a statement of current liabilities, a forecast income statement, a cash flow statement and a financing plan.
The frequency, time limits and conditions for drawing up these documents shall be specified by a decree. These documents shall be analysed in the reports to be drawn up by the management body on the future of the
legal entity. These documents and reports shall simultaneously be sent to the statutory auditors, to the works council or, in the absence of a works council, to the employee delegates, and to the supervisory body, where one exists.
Where the provisions of the preceding paragraphs are not complied with or where the information given in the reports referred to under the preceding paragraph requires his comment, the statutory auditor will signal it in a written report, which he shall submit to the body responsible for administration or management. This report shall be sent to the works council or, in the absence of a works council, to the employee delegates. This report shall also be presented to
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COMMERCIAL CODE the next meeting of the governing body.
Article L612-3 (Act No 2005-845 of 26 July 2005, Article 1, Article 11 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the statutory auditor of a legal entity referred to under Articles L612-1 and L612-4 discovers, in the course of his duties, facts that may undermine the continuation of the entity's activity, he will inform the managers of the legal entity under the conditions fixed in a Conseil d'Etat decree.
In the absence of a response within the time set in a Conseil d'Etat decree, or if the response does not guarantee the continuation of activity, the statutory auditor will direct the managers in writing, with a copy to the president of the Tribunal de grande instance (High court), to request the collegiate board of the legal entity to deliberate upon these facts. The statutory auditor shall be invited to this meeting. The decisions of the collegiate board shall be notified to the works council or, in the absence of a works council, to the employee delegates and to the president of the Tribunal de grande instance (High court).
Where these provisions are not complied with, or where the statutory auditor observes that despite the decisions taken the continuation of the business's activity remains endangered, a members' general meeting will be summoned under the conditions and within the time limits fixed by a Conseil d'Etat decree. The statutory auditor shall draw up a special report, which shall be presented to this meeting. The report shall be sent to the works council or, in the absence of a works council, to the employee delegates.
If, at the end of this general meeting, the statutory auditor observes that the decisions taken do not ensure the continuation of business's activity, he will inform the president of the court of the steps he has taken and submit the results to him.
The provisions of this article shall not apply where composition or safeguard proceedings have been initiated by managers pursuant to Articles L611-6 and L620-1.
Article L612-4 (Act No 2003-706 of 1 August 2003, Article 116, Article 121, Official Journal of 2 August 2003) (Act No 2005-845 of 26 July 2005, Article 1, Article 11 IV, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Order No 2005-856 of 28 July 2005, Article 5, Official Journal of 29 July 2005, in force on 1 January 2006)
Any association that has received one or more annual grants from public authorities, within the meaning of Article 1 of the Act of 12 April 2000, or from public bodies of an industrial or commercial nature, of which the total amount exceeds a threshold fixed by a decree must prepare an annual financial statement including a balance sheet, an income statement and notes; the manner of preparing these documents shall be defined by a decree. These associations must publish their annual financial statements and the statutory auditor's report, under conditions defined by a Conseil d'Etat decree.
These same associations shall be required to appoint at least one statutory auditor and one deputy. N.B. Order 2005-856 2005-07-28, Article 9: Article 5 of this order shall apply to the financial years of associations
and foundations commencing on or after 1 January 2006.
Article L612-5 (Act No 2001-420 of 15 May 2001, Article 112, Official Journal of 16 May 2001) (Act No 2003-706 of 1 August 2003, Article 123 I 5°, Official Journal of 2 August 2003) (Act No 2005-845 of 26 July 2005, Article 1, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The legal representative or the statutory auditor, if any, of a not-for-profit private-law entity engaged in economic activities or of an association referred to under Article L612-4 shall present a report regarding the agreements entered into directly or through anybody standing between the legal entity and one of its directors or one of the persons acting as an officer, to the governing body or, in the absence of a governing body, attaches such report to the documents sent to the members.
The same will apply to agreements entered into between this legal entity and a company of which a partner with unlimited liability, manager, director general manager, deputy general manager, member of Board of Directors or Supervisory Board, or shareholder who holds more than 10% of the voting rights, is simultaneously a director or acts as a legal representative of the aforementioned legal entity.
The governing body shall rule upon the report. A Conseil d'Etat decree shall define the conditions according to which the report is drawn up. However, agreements that are not approved shall nevertheless take effect. The harmful effects on the legal entity
resulting from such an agreement may be borne, individually or jointly and severally as the case may be, by the director or the person acting as a legal representative.
The provisions of this article shall not apply to ordinary contracts entered into under normal terms and conditions which, due to their object or their financial implications, are of no great importance for any of the parties.
TITLE II The safeguard procedure Articles L621-1 to
L620-2
Article L620-1
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COMMERCIAL CODE (Act No 2005-845 of 26 July 2005, Article 1, Article 12, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
This article institutes a safeguard procedure to be commenced on the petition of the debtor who is mentioned in Article L620-2 that shows difficulties that it is unable to overcome on its own and that would lead to a cessation of payments. This purpose of this procedure is to facilitate the reorganization of the business in order to allow the continuation of the economic activity, the maintenance of employment and the settlement of liabilities.
The safeguard proceedings shall give rise to a plan to be confirmed by a court order at the end of an observation period and, where appropriate, to the formation of two committees of creditors, in compliance with the provisions of Articles L626-29 and L626-30.
Article L620-2 (Act No 2005-845 of 26 July 2005, Article 1, Article 13, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The safeguard procedure shall apply to traders, persons registered with the craftsmen's register, farmers, other persons running an independent professional activity, including an independent professional person with a statutory or regulated status or whose designation is protected, as well as private-law entities.
New safeguard proceedings may not be commenced with respect to any person already subject to such proceedings or to reorganization or liquidation proceedings if the operations of the plan that it has given rise to have not been terminated or if the liquidation proceedings have not been closed.
CHAPTER I Commencement of the safeguard proceedings Articles L621-1 to
L621-12
Article L621-1 (Act No 2005-845 of 26 July 2005, Article 1, Article 14, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The Court shall issue an order on the commencement of the proceedings after having heard in or duly summoned to the judge's chambers, the debtor, representatives of the works council or, in the absence of a works council, the employee delegates. The Court may hear any other person whose testimony it deems usefuL
In addition, where the debtor is an independent professional with a statutory or regulated status or whose designation is protected, the Court will decide, if necessary, after hearing or giving notice to the supervisory body or relevant authority, under the same conditions.
The Court may, before making a ruling, appoint a judge who will gather information regarding the business's financial, economic and employment situation. This judge may apply the provisions of Article L623-2. He may be advised by any expert of his choice.
The hearing for the commencement of safeguard proceedings with respect to a debtor who benefits or has benefited from a special commission (mandat ad hoc) or from composition proceedings during the preceding eighteen months must be held in the presence of the Public prosecutor.
In this case, the Court may, of its own motion or on motion of the Public prosecutor, obtain all documents and deeds relating to the special commission (mandat ad hoc) or the composition proceedings, notwithstanding the provisions of Article L611-15.
Article L621-2 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 15, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The competent court will be the Tribunal de commerce (Commercial court) if the debtor is a trader or he is registered with the craftsmen's register. The Tribunal de grande instance (High court) shall be competent in other cases.
The commenced proceedings may be extended to one or more other persons where their assets are intermingled with those of the debtor or where the legal entity is a sham. The court that has commenced the initial proceedings shall remain competent for this purpose.
Article L621-3 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 16, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The order shall commence an observation period not exceeding six months, which may be renewed once by a reasoned ruling on motion of the administrator, the debtor or the Public prosecutor. It may also be extended exceptionally, on motion of the Public prosecutor, by a reasoned ruling of the Court for a period to be fixed by a Conseil d'Etat decree.
Where an agricultural business is involved, the Court may extend the observation period taking account of the current agricultural year and the practices specific to the farm's products.
Article L621-4 (Act No 2005-845 of 26 July 2005, Article 1, Article 17, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the commencement order, the Court shall appoint the supervisory judge whose functions are specified in Article L621-9. It may, if need be, appoint several supervisory judges.
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COMMERCIAL CODE It shall invite the works council or, in the absence of a works council, the employee delegates to appoint a
representative from among the employees of the business. In the absence of a works council or employee delegates, the employees will elect a representative, who shall perform the functions attributed to these institutions by the provisions of this Title. The terms and conditions for the appointment or election of the employees' representative shall be specified in a Conseil d'Etat decree. Where no employees' representative can be appointed or elected, a record of the default shall be drawn up by the head of the business.
In the same order, without prejudice to the possibility of appointing one or more experts for duties that it shall determine, the Court shall appoint two court nominees, that is, a court nominee and an administrator, whose duties are specified in Article L622-20 and Article L622-1 respectively. It may, on motion of the Public prosecutor, appoint several court nominees or administrators. In the situation provided for in the fourth paragraph of Article L621-1, the Public prosecutor may object to the appointment of a person who had previously been appointed as a commissioner (mandataire ad hoc) or conciliator with regard to a special commission (mandat ad hoc) or composition proceedings with regard to the same debtor.
However, the Court will not be bound to appoint an administrator where the proceedings relate to a debtor whose number of employees and turnover net of tax are below the thresholds provided for by a Conseil d'Etat decree. In this case, the provisions of Chapter VII of this Title shall apply. Until the issuance of the confirmation order of the plan, the Court may, on motion of the debtor, the court nominee or the Public prosecutor, decide to appoint an administrator.
For the purposes of taking inventory and the valuation required by Article L622-6, the Court shall appoint an auctioneer, a bailiff, a notary or an accredited commodity broker.
Article L621-5 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 17, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
No relatives or affines, up to the fourth degree included, of the head of the business or the managers, if the debtor is a legal entity, may be appointed to any one of the positions provided for in Article L621-4 except where this provision prohibits the appointment of an employees' representative.
Article L621-6 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 18, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The employees' representative and employees who take part in the appointment process must not have been convicted to one of the sentences provided for in Article L6 of the Electoral Code. The employees' representative must be at least eighteen years old.
The Tribunal d'instance (Magistrates' Court) that rules in final instance shall have jurisdiction on the objections raised against the appointment of the employees' representative.
Article L621-7 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 19, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The Court may, of its own motion or on the initiative of the supervisory judge or on motion of the Public prosecutor, replace the administrator, the expert or the court nominee.
The Court may appoint, under the same conditions, one or more administrators or court nominees in addition to those already appointed. The administrator, the court nominee or the creditor appointed as controller may ask the supervisory judge to apply to the Court for that purpose.
Where the debtor is an independent professional person with a statutory or regulated status or whose designation is protected, the supervisory body or relevant authority, as the case may be, may apply to the Public prosecutor for the same purpose.
The debtor may ask the supervisory judge to apply to the Court for the replacement of the administrator or the expert. Under the same conditions, the creditors may request the replacement of the court nominee.
Only the works council or, in the absence of a works council, the employee delegates or, if there is none, only the business's employees may replace the employees' representative.
Article L621-8 (Act No 2002-73 of 17 January 2002, Article 122, Official Journal of 18 January 2002) (Act No 2003-7 January 2003, Article 40, Official Journal of 4 January 2003) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 20, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The administrator and the court nominee shall inform the supervisory judge and the Public prosecutor of the progress of the proceedings on regular basis. The supervisory judge and the Public prosecutor may request the disclosure of all deeds and documents relating to the proceedings at any time.
The Public prosecutor shall give to the supervisory judge, on the latter's request or of his own motion, notwithstanding any legal provision to the contrary, any information he holds and which may be useful for the proceedings.
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COMMERCIAL CODE Article L621-9 Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 21, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The supervisory judge shall supervise the speedy progress of the proceedings and the protection of the parties' interests.
Where the appointment of an expert is necessary, this may only be made by the supervisory judge, for the duties he shall determine, without affecting the powers of the Court provided for in Article L621-4 to appoint one or more experts. The terms for the remuneration of the expert shall be fixed by a Conseil d'Etat decree.
Article L621-10 (Act No 2003-7 of 3 January 2003, Article 41, Official Journal of 4 January 2003) Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1, Article 22, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The supervisory judge shall appoint up to five controllers from among those creditors requesting to be appointed. Where he appoints several controllers, he must ensure that at least one of them is chosen from among the secured creditors and one from among the unsecured creditors.
No relatives or affines, up to the fourth degree included, of the manager or the directors of a legal entity, nor any person holding directly or indirectly all or part of the capital of the debtor or whose capital is held, in part or in all, by that same person, may be appointed as controller or as representative of a legal entity appointed as controller.
Where the debtor is an independent professional person with a statutory or regulated status or whose designation is protected, the supervisory body or relevant authority, if any, will act as controller as of right.
In this case, the supervisory judge may not appoint more than four controllers. The controller shall be held liable only in case of gross negligence. He may be represented by one of his employees
or by an advocate. Any creditor appointed as controller may be removed by the Court on motion of the Public prosecutor.
Article L621-11 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1, Article 22, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The controllers shall assist the court nominee in his functions and the supervisory judge in his duty of supervising the management of the business. They may consult all documents sent to the administrator and to the court nominee. They shall observe confidentiality. Controllers shall not be paid for their duties.
Article L621-12 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1, Article 22, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If it appears, after the commencement of the proceedings, that the debtor was already in a state of cessation of payments at the time of issuance of the commencement order, the Court will record this and fix the date of the cessation of payments under the conditions provided for under the second paragraph of Article L631-8. It shall convert the safeguard proceedings into reorganization proceedings. If necessary, it may modify the length of the remaining observation period.
The administrator, the court nominee or the Public prosecutor may apply to the Court which may also initiate a case of its own motion. It shall rule upon the case after having heard or duly summoned the debtor.
CHAPTER II The business during the observation period Articles L622-1 to
L622-33
Article L622-1 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 23, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I -The management of the business shall be carried out by its manager. II -Where the Court, in accordance with the provisions of Article L621-4, appoints one or more administrators, it will
assign them to jointly or individually supervise the debtor's management operations or to assist the debtor in all or some of the management.
III -In performing his duties, the administrator must comply with the legal and contractual obligations incumbent on the head of the business.
IV - At any time, the Court may alter the administrator's duties on his motion or on motion of the court nominee or that of the Public prosecutor.
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COMMERCIAL CODE V - The administrator may operate, with his signature, the debtor's bank and Post Office accounts if the debtor is
prohibited from so doing under Article 65-2 and the third paragraph of Article 68 of the Decree of 30 October 1935 on the unification of the law governing cheques.
Article L622-2 (Act No 2003-7 of 3 January 2003, Article 45, Official Journal of 4 January 2003) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The debtor's statutory auditor may not avail himself of professional confidentiality rules in order not to meet the requests of the administrator's statutory auditor for information or documents concerning the operation, from the moment the administrator is appointed, of bank or Post Office accounts opened in the debtor's name.
Article L622-3 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The debtor shall continue to carry out acts of disposal and management over his personal estate as well as to exercise rights and actions not included within the administrator's duties.
In addition, subject to the provisions of Articles L622-3 and L622-13, the daily management operations that the debtor performs alone shall be deemed valid with respect to third parties acting in good faith.
Article L622-4 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
As from the time of his entry into office, the administrator must either require the head of the business to carry out all acts necessary for the preservation of the business's interests against its debtors and to maintain the production capacity or do this himself as the case may be.
The administrator shall be entitled to take out, on behalf of the business, any mortgage, security, pledge or lien that the head of the business may have neglected to secure or renew.
Article L622-5 (Act No 2003-7 of 3 January 2003, Article 46, Official Journal of 4 January 2003) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Act No 2005-845 of 26 July 2005, Article 1 I, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
As of the issuance of the commencement order, all third party holders must hand over to the administrator or, in the absence of an administrator, to the court nominee, at the latter's request, all documents and books of account for examination.
Article L622-6 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1, Article 24, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
From the commencement of the proceedings, an inventory and a valuation of the debtor's estate and the guarantees encumbering it shall be made. The debtor shall add to the inventory to be given to the administrator and the court nominee a statement with respect to assets he holds that may be claimed by a third party.
The debtor shall give the administrator and the court nominee a list of its creditors, the amount of its debts and the main executory contracts. The debtor shall inform them of any pending proceedings to which it is a party.
The administrator or, if none has been appointed, the court nominee may, notwithstanding any statutory or regulatory rule to the contrary, receive information enabling him to know the exact position of the debtor's estate from public authorities and bodies, provident institutions and social security, credit institutions and bodies responsible for the centralisation of information on banking risks and payment incidents.
Where the debtor is an independent professional person with a statutory or regulated status or whose designation is protected, the inventory will be drawn up in the presence of a representative of the debtor's supervisory body or relevant authority, if any. The inventory may not infringe the debtor's duty of professional confidentiality under any circumstances.
The absence of an inventory shall not preclude actions for recovery or restitution. A Conseil d'Etat decree shall define the conditions under which this article shall apply.
Article L622-7 (Act No 2005-845 of 26 July 2005, Article 1, Article 25, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Order No 2006-346 of 23 March 2006, Article 47, Official Journal of 24 March 2006)
The order commencing the proceedings shall automatically prohibit payment of claims arising prior to the issuance of the commencement order, except set-off payments of connected claims. It shall also automatically prohibit payment of claims arising after the issuance of the commencement order that are not referred to under Article L622-17, other than those claims related to the debtor's daily necessities of life and alimony claims. It shall at last forbid the conclusion and performance of a commisoria lex.
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COMMERCIAL CODE The supervisory judge may allow the head of the business or the administrator to carry out acts of disposition not
included in the ordinary management of the business, to grant mortgages or collateral or to compromise or settle. The supervisory judge may also allow them to pay debts arising prior to the issuance of the order, to withdraw a
pledge or possession of a thing held lawfully, where this withdrawal is justified by the continuation of business operations.
All acts or payments carried out in violation of the provisions of this article shall be nullified on motion of any interested party or of the Public prosecutor to be submitted within a three-year period beginning with the performance of the act or the payment of the debt. Where the act has to be published, this period will run from the date of publication.
Article L622-8 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 26, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
When an asset encumbered with a special lien, a security or a mortgage is sold, the portion of the price corresponding to the claims secured by these guarantees will be placed on a deposit account with the Caisse des dépôts et consignations. After the confirmation of the plan, creditors whose claims are secured by these guarantees or by a general lien shall be paid out of the proceeds according to their priority and in compliance with Article L626-22 where they are subject to the time limits provided for in the plan.
The supervisory judge may order interim payment of the whole or part of the creditors' claims of the secured on the asset. Save where the supervisory judge has issued a specially reasoned ruling or where the payment is in favour of the Treasury, benefits institutions or similar organisations, the interim payment will be subject to the presentation by its beneficiary of a guarantee provided by a credit institution.
The debtor or the administrator may offer to creditors to substitute guarantees equivalent to those existing. In the absence of agreement, the supervisory judge may order this substitution. An appeal against this order may be filed with the Court of AppeaL
Article L622-9 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 27, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The business's activity shall be continued during the observation period, subject to the provisions of Articles L622-10 to L622-16.
Article L622-10 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 28, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The Court may order the partial cessation of the business's operations at any time during the observation period, on motion of the debtor, administrator, court nominee, one of the controllers, the Public prosecutor or, of its own motion.
Under the same conditions, it will convert the safeguard proceedings into reorganization proceedings if the conditions in Article L631-1 are satisfied or will order liquidation proceedings if the conditions of Article L640-1 are satisfied.
It shall rule upon the case after having heard or duly summoned the debtor, the administrator, the court nominee, the controllers, the works council, or, in the absence of a works council, the employee delegates and after having received the Public prosecutor's opinion.
When it converts the safeguard proceedings into reorganization proceedings, the Court may, if necessary, alter the length of the remaining observation period.
Article L622-11 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 28, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the Court pronounces the judicial liquidation it will terminate the observation period and the administrator's duties, subject to the provisions of Article L641-10.
Article L622-12 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 28, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the difficulties that were the grounds for the commencement of the proceedings disappear, the Court will terminate the proceedings at the debtor's request. It shall rule upon the case as provided by the third paragraph of Article L622-10.
Article L622-13 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 29, Article 165 III, Official Journal of 27 July 2005, in force on 1
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COMMERCIAL CODE January 2006 subject to Article 190)
Only the administrator has the right to require the debtor's contracting party to perform executory contracts in exchange for the performance of the debtor's obligations. The contract shall automatically be terminated once a formal notice has been sent to the administrator that has remained unanswered within a month. Before this time limit expires, the supervisory judge may grant the administrator a shorter time limit or an extension, which may not exceed two months, to take a position.
Where the performance concerns the payment of a sum of money, it must be paid promptly, except where the administrator is given a moratorium by the other party. Based on the forecast documents in his possession, the administrator must ensure at the time he requires the performance of the contract that he will have the necessary funds at his disposaLWhere the contract is to be performed over time and paid in instalments, the administrator will terminate it if he believes that he will not have the necessary funds to satisfy the obligations of the next term.
In the absence of payment under the conditions set out in the preceding paragraph or if the other party does not agree to continue the contractual relationship, the contract will automatically be cancelled and the Public prosecutor, the administrator, the court nominee or a controller may apply to the Court to terminate the observation period.
The other party must perform its obligations despite the non-performance by the debtor of the obligations entered into prior to the issuance of the commencement order. The non-performance of these obligations shall only give creditors a right to submission of claims.
If the administrator does not make use of his right to continue the contract or he terminates it as provided for by the second paragraph, the non-performance may give rise to damages that must be claimed as liabilities due to the other party. The other party may however postpone the reimbursement of sums paid in excess by the debtor in performance of the contract until the question of damages is settled.
Notwithstanding any legal rule or contractual term to the contrary, the indivisibility, termination or rescission of the contract may not result from the commencement of safeguard proceedings alone.
The provisions of this article shall not apply to employment contracts.
Article L622-14 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 30, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The termination of the debtor's lease rights over immovable property used in the business's operations will be recorded or ordered:
1. if the administrator decides not to continue the lease and applies for its termination. In this case, the termination shall take effect on the day of the application.
2. if the lessor requests the termination or has termination of the lease recorded due to non-payment of the rent or tenant's expenses in connection with the occupancy after the issuance of the commencement order, as the lessor may take action only at the end of a three month period from the date of issuance of the order.
If the sums are paid before this period has elapsed, there is no cause for termination. Notwithstanding any contractual term to the contrary, the absence of activity during the observation period in one or
more of the properties leased by the business shall not cause the termination of the lease.
Article L622-15 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 31, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the lease is assigned, any clause imposing a solidary liability with the assignee on the assignor shall be deemed void.
Article L622-16 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 32, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the event of safeguard proceedings, the lessor shall have a preferential lien only on the rent of the last two years preceding the issuance of the commencement order.
If the lease is terminated, the lessor will have, in addition, a preferential lien in respect of performance of the lease in the current year and damages that may be awarded by court.
If the lease is not terminated, the lessor may not demand payment of the rent yet to fall due where the guarantees given to him at the time of the contract are maintained or where those that have been given after the issuance of the commencement order are regarded as sufficient.
The supervisory judge may allow the debtor or the administrator, as the case may be, to sell movable assets furnishing the leased premises that are susceptible to deteriorate or depreciate rapidly, that are expensive to preserve or whose sale does not undermine the existence of the business or the maintenance of sufficient guarantees for the lessor.
Article L622-17 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 33, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Claims arising in a proper manner after the issuance of the commencement order for the needs of the proceedings or the observation period or as consideration for goods and services provided to the debtor with respect to its professional or activity during this period, shall be paid as they fall due.
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COMMERCIAL CODE II - Where they are not paid as they fall due, these claims will be paid according to their preferential lien before all
the other claims, whether these are secured or not by preferential liens or guarantees, except for those claims secured by a lien provided for in Articles L143-10, L143-11, L742-6 and L751-15 of the Labour Code, those claims secured by a lien for legal fees and those claims secured by the lien created by Article L611-11 of this Code.
III - Their payment shall be made in the following order: 1. claims of wages and salaries for which funds have not been advanced in compliance with Articles L143-11-1 to
L143-11-3 of the Labour Code; 2. legal fees; 3. loans and claims arising from the performance of continued contracts according to the provisions of Article
L622-13 and where the other party accepts deferred payments. These loans and the moratorium shall be allowed by the supervisory judge within the limits necessary for the continuation of business operations during the observation period and shall be published. In the event of termination of a contract that had been continued in a proper manner, compensation and penalties will be excluded from this article.
4. sums that have been advanced in application of Article L143-11-1 (3°) of the Labour Code; 5. other claims, according to their priority. IV - Unpaid claims will lose the lien provided for by this article if they have not been notified to the court nominee
and the administrator, where one has been appointed or, where these persons have ceased their functions, to the plan performance supervisor or the liquidator within a year from the end of the observation period.
Article L622-18 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Any sum received by the administrator or court nominee, that has not been deposited on the debtor's bank or Post Office accounts in order to continue business operations, must immediately be deposited on a deposit account with the Caisse des dépôts et consignations.
If deposits are delayed, the administrator or the court nominee must pay interest on the unpaid amounts at the legal rate of interest plus five percent.
Article L622-19 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Any sum received by the association referred to under Article L143-11-4 of the Labour Code in compliance with Articles L143-11-1 to L143-11-3 of the same Code shall be declared to the tax authority.
Article L622-20 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 34, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Only the court nominee appointed by the Court may act on behalf and in the general interest of the creditors. However, if the court nominee fails to act, any creditor appointed as controller may act in the general interest of the creditors under the conditions provided for in a Conseil d'Etat decree.
The court nominee shall transmit all comments that he receives from the controllers in the course of the proceedings to the supervisory judge and to the Public prosecutor.
Sums recovered following actions initiated by the court nominee or, if the court nominee fails to act, by the creditor(s) appointed as controllers, become part of the debtor's estate and shall be used to pay the debtor's liabilities according to the terms provided for paying liabilities if the continuation of the business is decided.
Article L622-21 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 35, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - The issuance of the commencement order shall stay or prohibit legal actions of all creditors whose claims are not referred to under Article L622-17 (I) aimed at obtaining:
1. an order against the debtor to pay a sum of money. 2. the rescission of a contract on the grounds of non-payment of a sum of money. II - In addition, the order shall stay or prohibit all proceedings for enforcement filed by the creditors in respect of
movable and immovable properties. III - Hence, all time limits, to be observed under the penalty of loss or rescission of rights, shall be stayed.
Article L622-22 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to
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COMMERCIAL CODE Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 36, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Save the provisions of Article L625-3, any pending proceedings shall be stayed until the creditor who initiated it has filed its submission of claim. Then, they shall be resumed ipso jure for the sole purpose of verifying the claims and determining their amount after having duly summoned the court nominee and, as the case may be, the administrator or the plan performance supervisor appointed in compliance with Article L626-25.
Article L622-23 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Legal actions and proceedings for enforcement against the debtor other than those referred to under Article L622-21 shall be continued during the observation period after the administrator and the court nominee have been summoned or after the action is resumed at their own initiative.
Article L622-24 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 37, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
From the date of publication of the order, all creditors other than employees whose claims arose prior to the issuance of the commencement order shall submit their claims with the court nominee. Creditors who hold a published security or who are bound to the debtor by a published contract shall be informed personally or, where appropriate, at their elected domicile. The time limit for submitting claims with respect to these creditors shall run from notice of this information.
The claims may be submitted by the creditor or by any employee or proxy of his choice. The claims must be submitted even if they are not proven by a document. Those claims whose amount is not yet
definitively determined shall be submitted based on an assessment. The claims of the Public Treasury, provident institutions and social security as well as claims of the institutions provided for in Article L351-21 of the Labour Code for which no order for enforcement has been issued at the time of submitting shall be admitted on a provisional basis for the amount submitted. Whatever the case, the submissions of claims by the Public Treasury and social security shall always be made subject to any taxes and other claims not proven at the date of the filing of the submission of claims. Subject to pending court and administrative proceedings, final proof must be brought within the time limit provided for in Article L624-1, under the penalty of debarment.
Those institutions referred to under Article L143-11-4 of the Labour Code shall be subject to the provisions of this article for the sums paid by them as an advance and that shall be reimbursed to them under the conditions provided for claims arising prior to the issuance of the order commencing the proceedings.
Claims properly arising after the issuance of the commencement order, other than those referred to under Article L622-17(I) and alimony claims, shall be subject to the provisions of this article. The time limits shall run as of the maturity date of the claim. However, creditors whose claims arise from a successive performance contract shall file the total amount of their claim under the conditions provided for by a Conseil d'Etat decree.
The time limits for submitting claims of a civil party arising from a criminal offence shall run as of a final judgment determining the amount.
Article L622-25 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The submission of claim shall state the amount of the claim due on the date of issuance of the commencement order and the sums yet to fall due and their dates of maturity. It shall state the nature of the lien or security that secures the claim, if any.
Where the claim is expressed in a foreign currency, the conversion to euros shall be made at the exchange rate prevailing on the date of the issuance of the commencement order.
Unless it results from an order for enforcement, the submitted claim shall be certified genuine by the creditor. The supervisory judge may request that the statutory auditor's stamp or, failing this, the stamp of a public accountant, be affixed to the submission of claims. Any refusal to affix the stamp must be explained.
Article L622-26 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 38, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If they fail to submit their claims within the time limits provided for in a Conseil dEtat decree, the creditors will not participate in the allocation of funds and distribution of dividends unless the supervisory judge sets aside the debarment
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COMMERCIAL CODE of their claims if they prove that they are not liable for the absence of submission of claims or that the debtor has deliberately omitted to mention their claim on the list provided for under the second paragraph of Article L622-6. They may then participate only in the distributions of dividends made after their request.
A motion to set aside a debarment may be filed only within a six-month period. This period shall run from the date of publication of the commencement order or, for those institutions referred to under Article L143-11-4 of the Labour Code, from the end of the period during which the claims arising from an employment contract are secured by these institutions. With respect to creditors secured by a published security or bound to the debtor by a published contract, the period shall run from the receipt of the notice delivered to them. As an exception, the period shall be extended to one year with regard to creditors who were unable to know the existence of their claim before the end of the six months period referred to above.
Article L622-27 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, II, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the event of a dispute over the whole or part of a claim other than those referred to under Article L625-1, the court nominee will inform the creditor concerned, by requesting him to give its explanations. A failure to reply within thirty days shall bar any later dispute over the court nominee's proposals.
Article L622-28 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 39, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The issuance of the commencement order shall stay the legal and contractual interest, as well as any interest due to late payment and surcharges, unless it concerns interest arising from loan contracts for a period of at least one year or contracts with payments deferred for at least one year. Individuals who are sureties, co-obligors or who are bound by an independent guarantee may benefit from the provisions of this paragraph.
The issuance of the commencement order shall stay any action against individuals who are sureties, co-obligors or who are bound by an independent guarantee, until the order confirming the plan or pronouncing the liquidation. The Court may subsequently grant them a moratorium or a deferred payment period for a maximum of two years.
Creditors secured by these guarantees may take protective measures.
Article L622-29 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 40, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The issuance of the commencement order shall not render unmatured claims mature on the day of the issuance of the order. Any clause to the contrary shall be deemed not to have been written.
Article L622-30 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 41, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
No mortgage, pledge or lien may be registered after the issuance of the commencement order. The same shall apply to deeds and court decisions transferring or creating rights in rem except where these deeds have obtained a legal date or the decisions have become enforceable prior to the issuance of the commencement order.
However, the Public Treasury shall not lose its lien for claims that it was not required to register on the date of the issuance of the commencement order and for claims to be collected after this date if these claims have been submitted under the conditions provided for in Article L622-24.
The seller of a business, by way of exception to the provisions of the first paragraph, may register his lien.
Article L622-31 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 42, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
A creditor bearing obligations entered into, endorsed or guaranteed jointly and severally by two or more co-obligors subject to safeguard proceedings, may submit its claim for the par value of its claim in all cases of proceedings.
Article L622-32 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 42 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Co-obligors subject to safeguard proceedings may not bring an action against each other regarding payments carried out except where the total of sums paid out in each case exceeds the total amount of the claim including the principal and other sums. In this case, the excess shall be payable, according to the order of the obligations to the co-obligors who are secured by the others.
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COMMERCIAL CODE Article L622-33 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 42 II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If a creditor, bearing obligations entered into solidarily by a debtor subject to safeguard proceedings, has received an advance payment on his claim from other co-obligors prior to the issuance of the commencement order, the creditor may submit its claim only after deducting the advance payment and shall retain, for the remaining sum due to it, its rights against the co-obligors or the surety.
A co-obligor or surety who has made a partial payment may submit its claim up to the amount paid to discharge the debtor.
CHAPTER III Drafting an economic, employment and environmental plan Articles L623-1 to
L623-3
Article L623-1 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 43, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The administrator, in cooperation with the debtor and possibly assisted by one or more experts, shall be required to draw up a report on the business's economic and employment situation.
The report on the economic and employment situation shall state the origin, extent and nature of the business's difficulties.
Where the business operates one or more classified plants within the meaning of Title I of Book V of the Environmental Code, the report on the economic and employment situation will be supplemented by a report on the environmental situation that the administrator shall have drawn up under the conditions provided for by a Conseil d'Etat decree.
Based on this report, the administrator shall propose a safeguard plan, without excluding the application of the provisions of Article L622-10.
Article L623-2 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 44, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The supervisory judge may, notwithstanding any statutory or regulatory rule to the contrary, obtain information enabling him to know the debtor's exact economic, financial, employment and net asset situation from statutory auditors, public accountants, employees or employees' representatives, public authorities and bodies, social security and provident institutions, credit institutions as well as from bodies responsible for the centralisation of information on banking risks and payment incidents.
Article L623-3 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 45, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The administrator shall obtain from the supervisory judge all information and documents useful for the implementation of his duties and those of any experts.
Where the proceedings are commenced with respect to a business that benefits from an approved amicable agreement provided for in Article L611-8 of this code or in Article L351-6 of the Rural Code, the administrator will receive the expert's report provided for in Article L611-6 or, as the case may be, the expert's report and the report provided for in Articles L351-3 and L351-6 of the Rural Code.
The administrator shall consult court nominee and hear any person capable of informing him about the business's position and the possibilities for its recovery, the conditions for settling its debts and the employment conditions under which the activity may be continued. He shall inform the debtor of this and consider the debtor's views and proposals.
He shall inform the court nominee as well as the works council or, in the absence of a works council, the employee delegates, of the progress of his duties. He shall consult them and the debtor about the measures he will propose based on the information and the offers received.
Where the debtor is an independent professional person with a statutory or regulated status or whose designation is protected, the administrator will consult the debtor's supervisory body or relevant authority, if any.
CHAPTER IV Determination of the debtor's estate Articles L624-1 to
L624-18
SECTION I
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COMMERCIAL CODE Verification and admission of claims Articles L624-1 to
L624-4
Article L624-1 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 46, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Within the time limit fixed by the Court, and after having received the debtor's views, the court nominee shall draw up the list of the submitted claims with his proposals for their admission, rejection or referral to the competent court. He shall transmit this list to the supervisory judge.
The court nominee may not be paid in respect of the submitted claims not appearing on the list drawn up within the time limit provided above, except for the claims submitted after this time limit in compliance with the last two paragraphs of Article L622-4.
Article L624-2 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Based on the proposals submitted by the court nominee, the supervisory judge shall decide on the admission or rejection of the claims or mention the existence of a pending legal action or his lack of jurisdiction in respect of the dispute.
Article L624-3 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 47 I, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
An appeal against the decisions of the supervisory judge to be filed according to this Section shall be available to the creditor, the debtor or to the court nominee.
However, a creditor whose claim is contested in whole or in part and who has not replied to the court nominee within the time limit provided for in Article L622-27 may not appeal against the decision of the supervisory judge where the decision approves the proposal of the court nominee.
The terms and forms of the appeal provided for in the first paragraph shall be specified by a Conseil d'Etat decree.
Article L624-4 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 47 II, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The supervisory judge's decision will not be subject to appeal in the cases provided for in this Section where the value of the principal amount of the claim does not exceed the jurisdiction of final judgement of the court that commenced the proceedings.
SECTION II Rights of spouses Articles L624-5 to
L624-8
Article L624-5 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 48, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The spouse of a debtor subject to safeguard proceedings shall specify the content of his/her personal property in compliance with the rules of the matrimonial regime under the conditions provided for in Article L624-9.
Article L624-6 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court nominee or the administrator may, if he proves by all means that the assets acquired by the debtor's spouse have been paid by money provided by the debtor, request the inclusion of these acquisitions in the debtor's assets.
Article L624-7 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Recovery of assets made in compliance with Article L624-5 may not be exercised except subject to debts and mortgages that lawfully encumber these assets.
Article L624-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 49, Official Journal of 27 July 2005, in force on 1
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COMMERCIAL CODE January 2006 subject to Article 190)
The spouse of the debtor who was, at the time of the marriage, or who became, within one year of the marriage or within the following year, a trader, a person registered with the craftsmen register, a farmer or an independent professional person may not file within the safeguard proceedings any action based on benefits granted by one spouse to the other in the marriage contract or during the marriage. On the other hand, creditors may not exploit the granting of benefits by one of the spouses to the other.
SECTION III Rights of sellers of movable property, recovery claim (revendication) and
restitution Articles L624-9 to L624-18
Article L624-9 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 50, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
A recovery claim against movable property may be filed only within a three-month period from the date of publication of the order commencing the proceedings.
For assets governed by an executory contract at the commencement of the proceedings, this period shall run as of the termination or expiry of the contract.
Article L624-10 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 51, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The owner of a property does not need to provide proof of ownership where the contract related to it has been published. He may claim the restitution of his property under the conditions provided for by a Conseil d'Etat decree.
Article L624-11 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 52, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The lien and right of recovery created by Article 2102 (4) of the Civil Code in favour of the seller of chattels as well as the action for rescission of a contract may be exercised only within the limits of the provisions of Articles L624-12 to L62418 of this Code.
Article L624-12 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 53, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Goods may be claimed when the sale contract was rescinded prior to the issuance of the commencement order, either pursuant to a court decision or pursuant to a condition subsequent, and if they still exist in kind, wholly or partially.
The recovery claim must also be admitted even if the rescission of the sale had been ordered or referred to by a court decision after the issuance of the commencement order where the action for recovery or for rescission of a contract was initiated by the seller, for a reason other than non-payment of the sales price, prior to the issuance of the commencement order.
Article L624-13 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Goods sent to the debtor may be reclaimed for such time as they have not been delivered to the debtor's premises or to the agent charged with selling them on the debtor's behalf.
However, the recovery claim will not be allowable if the goods have been resold, other than fraudulently, before their arrival, on the basis of correctly established invoices or transport documents.
Article L624-14 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The seller may retain goods that have not been delivered or dispatched to the debtor or to a third party acting on the debtor's behalf.
Article L624-15 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Bills of exchange and any other unpaid securities given by their owner to be collected or to be specially allocated to specific payments may be reclaimed if they remain in the debtor's portfolio.
Article L624-16 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 54, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Order No2006-346 of 23 March 2006, Article 48 I, Official Journal of 24 March 2006)
Goods held by the debtor on consignment or for sale on behalf of the owner may be claimed if they still exist in kind. Assets sold with retention of title clause may be claimed if they still exist in kind at the time of the issuance of the
commencement order. This clause must have been agreed upon in writing at the latest at the time of delivery. It may
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COMMERCIAL CODE appear in a document governing a number of commercial operations entered into by the parties.
The recovery claim in kind may be brought under the same conditions with respect to movable assets incorporated in another asset where they may be removed without damaging them. A recovery claim in kind may also be made in relation to fungible items where the debtor or any person keeping them on his behalf has in his possession assets of a similar type and the same quality. In every instance, the asset may not be recovered, if, by decision of the supervisory judge, the price is paid immediately. The supervisory judge may also, with the consent of the petitioning creditor, grant a moratorium. The payment of the price shall thus be considered equivalent to the payment of debts referred to under Article L622-17(I).
Article L624-17 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 55 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Order No2006-346 of 23 March 2006, Article 48 II, Official Journal of 24 March 2006)
The administrator with the consent of the debtor or, in the absence of an administrator, the debtor with the consent of the court nominee may approve the recovery claim or restitution claim of assets dealt with under this Section. In absence of consent or in the event of dispute, the request will be filed with the supervisory judge who will rule upon the fate of the contract based on the views of the creditor, the debtor and the court nominee.
Article L624-18 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 55 II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Order No2006-346 of 23 March 2006, Article 48 III, Official Journal of 24 March 2006)
The price or portion of the price of the assets referred to under Article L624-16, which was not paid or settled in negotiable instruments or set off in the form of credit on a current account between the debtor and the purchaser on the issuance of the order commencing the proceedings, may be claimed. Insurance payouts for lost property subrogated to the property may be claimed under the same conditions.
CHAPTER V Payment of claims resulting from employment contracts Articles L625-1 to
L625-8
SECTION I Verification of claims Articles L625-1 to
L625-6
Article L625-1 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005 in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 56, Article 165 III, Official Journal of 27 July 2005 in force on 1 January 2006 subject to Article 190)
After verification, the court representative shall draw up, within the time limits provided for in Article L143-11-7 of the Labour Code, statements of claims resulting from an employment contract, after having heard or duly summoned the debtor. The statements of claims shall be handed over to the employees' representative under the conditions provided for in Article L625-2. They must be signed by the supervisory judge, filed with the clerk of the court and shall be submitted to the publication formalities provided for by a Conseil d'Etat decree.
An employee whose claim does not appear in whole or in part on the statements of claims may, under the penalty of debarment, bring an action before the Labour Court within two months following the date of completion of the publication formalities provided for in the preceding paragraph. He may ask the employees' representative to assist him or to represent him before the Labour Court.
The debtor or the administrator, if he assumes management duties, shall be summoned.
Article L625-2 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005 in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 57, Article 165 III, Official Journal of 27 July 2005 in force on 1 January 2006 subject to Article 190)
The statements of claims resulting from an employment contract shall be handed over, for verification, to the employees' representative provided for in Article L621-4 by the court nominee. The court nominee must transmit all useful documents and information to him. Where problems are encountered, the employees' representative may turn to the administrator and, where appropriate, apply to the supervisory judge. He has a duty of discretion provided for in Article L432-7 of the Labour Code. The time spent in carrying out his duties as provided for by the supervisory judge shall automatically be regarded as working time and shall be paid by the employer, the administrator or the liquidator, as the case may be, at the normal due date.
Article L625-3 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
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COMMERCIAL CODE (Act No 2005-845 of 26 July 2005, Article 1 I, Article 58 I, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Any pending proceedings before the Labour Court on the date of the order commencing the safeguard proceedings shall be continued in the presence of the court nominee or after he has been duly summoned.
The court nominee shall inform the court hearing the case and the employees party to it of the commencement of the safeguard proceedings within ten days.
Article L625-4 (Act No 2005-845 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005 Article 1 I, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the institutions referred to under Article L143-11-4 of the Labour Code refuse on whatsoever ground to pay a claim mentioned on the statements of claims resulting from an employment contract, they will inform the court representative of their refusal and the court representative shall immediately inform the employees' representative and the employee concerned.
The employee concerned may bring his case before the Labour Court. The court representative, the head of the business or the administrator, when he is in charge of management duties, shall be summoned.
The employee may ask the employees' representative to assist him or to represent him before the Labour Court.
Article L625-5 (Act No 2005-845 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Litigation brought before the Labour Court in pursuant to Articles L625-1 and L625-4 shall be brought directly before the Labour Court judges.
Article L625-6 (Act No 2005-845 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005 Article 1 I, II Official Journal of 27 July 2005 in force on 1 January 2006 subject to Article 190)
Statements of claims resulting from an employment contract, signed by the Receiver Judge, as well as the decisions of the Labour Court shall be mentioned on the list of claims handed over to the clerk's office. Any interested person, other than those referred to in Articles L625-1, L625-3 and L625-4, may bring an action or third party proceedings under the conditions provided for in a Conseil d'Etat decree.
SECTION II Employees' lien Articles L625-7 to
L625-8
Article L625-7 (Act No 2005-845 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 58 II, Official Journal of 27 July 2005 in force, on 1 January 2006 subject to Article 190) (Order nº 2006-346 of 23 March 2006, Article 54, Official Journal of 24 March 2006)
Claims resulting from an employment contract shall be secured in the event of commencement of safeguard proceedings:
1. by the lien provided for by Articles L143-10, L143-11, L742-6 and L751-15 of the Labour Code, for the reasons and amounts defined in these articles;
2. by the lien provided for by Article 2331 (4) and Article 2375 (2) of the Civil Code.
Article L625-8 (Act No 2005-845 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 58 II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Notwithstanding the existence of any other claim, claims secured by the lien provided for by Articles L143-10, L143-11, L742-6 and L751-15 of the Labour Code must be paid by the administrator upon the order of the supervisory judge, within ten days from the date of issuance of the order commencing the safeguard proceedings, if the administrator has the necessary funds.
However, before determining the amount of these claims, the administrator must immediately, with the permission of the supervisory judge and depending upon the funds available, pay to the employees, on a provisional basis, a sum equal to one month's unpaid wages, on the basis of the latest pay slip, but without exceeding the ceiling referred to in Article L143-10 of the Labour Code.
If there are insufficient funds available, the sums due under the terms of the two preceding paragraphs must be paid from the first funds received.
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COMMERCIAL CODE CHAPTER VI The safeguard plan Articles L626-2 to
L626-1
Article L626-1 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 59, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where there is a serious likelihood of saving the business, the Court will draw up a plan, terminating the observation period in so doing.
The safeguard plan shall include, if necessary, the cessation, the addition or the assignment of one or more activities. Assignments made in compliance with this Article shall be subject to the provisions of Section I of Chapter II of Title IV. The court nominee shall carry out the duties entrusted to the liquidator under these provisions.
SECTION I Drawing-up a draft plan Articles L626-2 to
L626-8
Article L626-2 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 60, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The draft plan shall state the prospects for turning the business around on the basis of the operational possibilities and methods, market conditions and the means of finance available.
It shall define the terms and conditions for settlement of the liabilities and any performance guarantees that the head of the business must provide.
The draft shall state and explain the level of and prospects for employment as well as the employment conditions for continuation of the business's operations.
Where the draft provides for dismissals for economic reasons, it will review steps already taken and define the actions to be carried out to facilitate the re-employment and the compensation of employees whose jobs are under threat. The draft shall take into consideration any work documented in the environmental report.
It shall document, attach and analyse the purchase offers from third parties with regard to one or more activities. It shall state the activity or activities to be closed or added.
Article L626-3 (Order No 2000-916 of 19 September 2000, Article 3, Official Journal of 22 September 2000, in force on 1 January 2002) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 61, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the draft plan provides for a modification of share capital, a shareholders' extraordinary general meeting or a partners' meeting as well as, where their approval is necessary, the special meetings provided for in Articles L225-99 and L228-35-6 or the general meetings of the general body provided for in Article L228-103 will be called under the conditions provided for by a Conseil d'Etat decree.
If owners' equity is less than half of the legal capital, due to the losses recognised in the accounts, the meeting will first be called upon to reconstitute owners' equity up to the amount suggested by the administrator, which may not be less than half of the legal capitaLIt may also be called upon to decide on a reduction or increase of capital, to which one or more persons who have promised to implement the plan may subscribe.
Obligations entered into by shareholders or partners or by new subscribers shall be subject to the approval of the plan by the Court for their implementation.
Clauses providing for the approval of new shareholders or partners shall be deemed not to have been written.
Article L626-4 (Order No 2000-916 of 19 September 2000, Article 3, Official Journal of 22 September 2000, in force on 1 January 2002) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 62, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the safeguard of the business so requires, the court, on motion of the Public prosecutor, may subject the confirmation of the plan to the replacement of one or more managers, except where the debtor is an independent professional person with a statutory or regulated status.
To achieve this and under the same conditions, the court may order that the shares in the company, equity
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COMMERCIAL CODE instruments or securities giving rights to the capital, held by one or more de jure or de facto managers, may not be transferred and decide that any attached voting rights shall be exercised, for a period that it will determine, by a court nominee appointed for this purpose. Likewise, it may order the assignment of the shares in the company, equity instruments or securities giving rights to the capital, held by the same persons; the price of the assignment shall be determined by an expert.
For the application of this article, the managers and representatives of the works council works council, the employee delegates shall be heard or duly summoned.
Article L626-5 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 63, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The administrator shall send the proposals for the settlement of debts, as they are being drafted and under the supervision of the supervisory judge, to the court nominee, the controllers as well as to the works council or, in the absence of a works council, to the employee delegates.
The court nominee must obtain the individual collective assent of the creditors who have submitted claim in compliance with Article L622-24 to the moratoriums and reductions proposed to them. In the event of consultation in writing, failure to reply within thirty days from receipt of the court nominee's letter shall amount to acceptance. These provisions shall apply to the institutions provided for in Article L143-11-4 of the Labour Code with respect to the amounts provided for in the fourth paragraph of Article L622-24, even if their claims have not yet been submitted.
Article L626-6 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 63, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Financial authorities, social security bodies, institutions managing the unemployment insurance system provided for in Articles L 351-3 and following of the Labour Code as well as the institutions governed by Book IX of the Social Security Code may consent, simultaneously with the efforts agreed to by other creditors, to cancel all or part of the debtor's debts on similar terms to those that would have been granted to the debtor, under normal market conditions, by any private economic agent placed in the same situation.
In this context, the financial authorities may cancel the full amount of direct taxes raised for the benefit of the State and local authorities as well as any other statutory revenue amounts payable by the debtor. With respect to indirect taxes raised on behalf of central and local government authorities, only late payment penalties, surcharges, penalties or fines may be cancelled.
The conditions for cancellation of debts shall be determined by a Conseil d'Etat decree. Creditors referred to under the first paragraph may also decide to transfer the priority of their lien or mortgage or to
abandon these guarantees.
Article L626-7 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1, Article 63, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court nominee shall record the creditors' replies. This statement shall be sent to the debtor and to the administrator to enable him to prepare his report, as well as to the controllers.
Article L626-8 (Order No 2000-916 of 19 September 2000, Article 3, Official Journal of 22 September 2000, in force on 1 January 2002) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 64, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The debtor, the works council or, in the absence of a works council, the employee delegates, the controller (s) and the court nominee shall be informed of and consulted on the report presenting the economic and employment situation and the draft plan sent to them by the administrator.
This report shall be sent at the same time to the competent employment authorities. The report of the meeting of which the agenda shows the consultation of the employee delegates shall be sent to the court as well as to the authority referred to above.
The Public prosecutor shall receive a copy of the report.
SECTION II Order confirming the plan and implementation of the plan Articles L626-9 to
L626-28
Article L626-9 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to
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COMMERCIAL CODE Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 65, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
After having heard or duly summoned the debtor, the administrator, the court nominee, the controllers as well as the representatives of the works council or, in the absence of a works council, the employee delegates, the court shall make its decision based on the administrator's report, after having received the opinion of the Public prosecutor. If the proceedings are commenced with respect to a debtor whose the number of employees or sales turnover excluding tax exceeds the thresholds fixed by a Conseil d'Etat decree, the hearing must be held in the presence of the Public prosecutor.
Article L626-10 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 66, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The plan shall state the persons bound to implement it and all of their commitments necessary for the safeguard of the business. These commitments shall relate to the future of the business's activity, the terms and conditions for maintaining and financing the business, the settlement of liabilities arising prior to the issuance of the commencement order as well as any guarantees given to ensure implementation of the plan.
The plan shall state and explain the level of and prospects for employment as well as the employment conditions for continuation of the business's operations.
The persons who will implement the plan, even as shareholders/ partners, shall not be bound to bear obligations other than the commitments they have accepted during its preparation, subject to the provisions of Articles L626-3 and L626-16.
Article L626-11 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 67, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The order confirming the plan shall make its provisions binding on anyone. Except for legal entities, co-obligors and persons who are bound by a surety bond or an independent guarantee
may avail themselves of the provisions of the plan.
Article L626-12 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 68, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Without prejudice to the application of the provisions of Article L626-18, the duration of the plan shall be fixed by the court. It may not exceed ten years. Where the debtor is a farmer, this period may not exceed fifteen years.
Article L626-13 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 69, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The confirmation of the plan by the court shall lead to the automatic lifting of the prohibition to issue cheques, ordered on rejection of a cheque issued prior to the issuance of the commencement order, in compliance with Article L131-73 of the Monetary and Financial Code.
Article L626-14 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 70, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the order confirming or modifying the plan, the court may decide that assets that it deems indispensable for the continuation of the business may not be alienated, for a period fixed by it, without its permission. The period of inalienability may not exceed that of the plan.
The formalities for publication of the temporary inalienability shall be carried out under the conditions provided for by a Conseil d'Etat decree.
Any act entered into in breach of the provisions of the first paragraph may be declared void on motion of any interested party or of the Public prosecutor filed within three years from the date of the conclusion of the contract. Where the act is subject to publication formalities, the time limit shall run from the date of publication.
Article L626-15 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
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COMMERCIAL CODE (Act No 2005-845 of 26 July 2005, Article 1 I, Article 71, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The plan shall state the modification of the articles of association necessary for the reorganization of the company.
Article L626-16 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 72, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where necessary, the order confirming the plan shall give a power of attorney to the administrator to convene, under the conditions provided for by a Conseil d'Etat decree, the competent meeting to put into effect the modifications provided for in the plan.
Article L626-17 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The partners or shareholders must pay the capital contribution they have subscribed to within the time limit determined by the court. In the event of immediate payment, they may benefit from set off up to the amount of their admitted claims and within the limit of the debt reduction included the plan in the form of debt cancellation or moratoriums.
Article L626-18 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 73, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court shall take cognizance of the moratoriums and cancellations accepted by the creditors in the manner provided for in the second paragraph of Article L626-5 and Article L626-6. These moratoriums and cancellations may, if necessary, be reduced by the court. For other creditors, the court shall impose uniform payment terms, subject to, regarding claims for future settlement, longer payment terms than those stipulated by the parties prior to the commencement of the proceedings, which may exceed the period of the plan.
The first payment may not be scheduled more than one year hence. After the second year, the amount of each annuity stipulated by the plan may not, except in the case of an
agricultural activity, be less than 5% of the admitted liabilities. For finance lease contracts, these payment terms will come to an end if, before their expiry, the finance lessee
exercises its purchase option. This may not be exercised if, subject to the deduction of accepted cancellation, all sums contractually due have not been paid.
Article L626-19 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 74, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The plan may grant creditors an option, consisting in a payment to be made within shorter uniform payment terms but with a proportionate reduction of the amount of the claim.
The reduction of the claim shall be definitely gained only after payment of the last instalment provided for by the plan.
Article L626-20 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I -By way of exception to the rules provided for in Articles L626-18 and L626-19, debt cancellations and moratoriums shall not apply to:
1. claims secured by the lien provided for in Articles L143-10, L143-11, L742-6 and L751-15 of the Labour Code; 2. claims resulting from a contract of employment secured by the lien provided for in Article 2331, 4° and Article
2375, 2° of the Civil Code where the amount of the claims has not been advanced by the institutions referred to under Article L143-11-4 of the Labour Code or has not been submitted to a subrogation.
II -Within a limit of 5% of the estimated liabilities, the smallest claims taken in an ascending order of their amounts, and provided that each claim does not exceed the amount provided for by a decree, shall be reimbursed without any cancellation or moratorium. This provision will not apply where the amount of the claims held by one and the same person exceeds one tenth of the percentage fixed above or where a subrogation has been agreed to or a payment has been made on behalf of another.
Article L626-21 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 75, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
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COMMERCIAL CODE Inclusion of a claim in the plan and the granting of cancellations or moratoriums by the creditor shall not affect the
definitive admission of the claim in the liabilities. Sums to be distributed corresponding to the disputed claims shall be paid only as of the definitive admission of
these claims in the liabilities. However, the court before which the case has been brought may order that the creditor will participate on a provisional basis, either totally or partially, in the distributions made before the definitive admission of the claim.
Unless the law provides otherwise, payments provided for in the plan shall be payable at the address of the payee. The court shall determine the terms and conditions for the payment of dividends provided for in the plan. The
dividends shall be paid to the plan performance supervisor who will distribute the amount received.
Article L626-22 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 76, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the event of a sale of an asset encumbered with a special lien, a security or a mortgage, the portion of the proceeds corresponding to the claims secured by these guarantees will be placed on a deposit account with the Caisse des dépôts et consignations and the creditors secured by these guarantees or general lien shall be paid out of the proceeds after payment of those claims secured by the lien provided for in Articles L143-10, L143-11, L742-6 and L751-15 of the Labour Code.
They shall receive dividends to fall due pursuant to the plan, reduced according to the advance payment, following their order of priority.
If an asset is encumbered with a special lien, a security or a mortgage, another guarantee may be substituted for this, where necessary, if it grants equivalent benefits. In the absence of agreement, the court may order this substitution.
Article L626-23 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 77, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the event of a partial assignment of assets, the proceeds shall be paid to the debtor except where Article L626-22 applies.
Article L626-24 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 78, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court may charge the administrator with carrying out acts necessary to implement the plan to be determined by him:
The court nominee shall remain in office during the time necessary for the verification and drawing up of the definitive list of claims.
Article L626-25 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 79, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court shall appoint the administrator or the court nominee as plan performance supervisor for the period provided for in Article L626-12. The court may appoint several supervisors, if necessary.
Litigations initiated prior to the issuance of the order confirming the plan and to which the administrator or the court nominee is a party shall be pursued by the plan performance supervisor or, if he is no longer in office, by a court nominee specially appointed for this purpose by the court.
The plan performance supervisor may also initiate action in the collective interest of creditors. The plan performance supervisor may obtain all documents and information useful for his duties. He shall inform the president of the court and the Public prosecutor of any failure in the implementation of the plan.
He shall also inform the works council or, in the absence of a works council, the employee delegates. Any sum received by the plan performance supervisor must be immediately placed on a deposit account with the
Caisse des dépôts et consignations. If deposits are delayed, the plan performance supervisor must pay interest on the unpaid sums at the legal rate of interest plus five percent.
The plan performance supervisor may be replaced by the court of its own motion or on motion of the Public prosecutor.
Article L626-26 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 80, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Substantial modifications of the goals or means of the plan may be made only by the court, on motion of the debtor and based on the report of the plan performance supervisor.
The court shall rule upon the case after having received the opinion of the Public prosecutor and after hearing or duly summoning the debtor, the plan performance supervisor, the controllers and representatives of the works council or, in the absence of a works council, the employee delegates and any interested party.
Article L626-27 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 81, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - The court that confirmed the plan may, after the Public prosecutor has given his opinion, order the rescission of
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COMMERCIAL CODE the plan if the debtor does not fulfil its commitments within the time limits provided for in the plan. Where the non-performance results from a failure by the debtor to pay dividends and the court have not ordered the rescission of the plan, the plan performance supervisor shall recover these dividends in accordance with the provisions of the plan.
Where the debtor's cessation of payments is established during the performance of the plan, the court which has confirmed the plan shall, after the Public prosecutor has given his opinion, order its rescission and pronounce the judicial liquidation.
The order pronouncing the rescission of the plan shall stay its implementation and lapse all moratoriums granted. II - In the cases provided for under (I), a creditor, the plan performance supervisor or the Public prosecutor may file
an action for rescission with the court. The court may also initiate an action of its own motion. III - After the rescission of the plan and the commencement or pronouncement of the new proceedings, creditors
who are subject to the plan shall be relieved from the need to submit their claims and guarantees. Claims included in the plan shall be automatically admitted less any sums already received.
Article L626-28 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 82, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where it is established that the commitments stated in the plan or ordered by the court have been performed, the court, on motion of the plan performance supervisor, the debtor or any interested party, will record that the plan has been implemented.
SECTION III Committees of creditors Articles L626-29 to
L626-35
Article L626-29 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 83, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Debtors whose accounts are certified by a statutory auditor or prepared by a public accountant and whose number of employees or sales turnover excluding tax exceeds the thresholds fixed by a Conseil d'Etat decree shall be governed by the provisions of this Section.
On motion of the debtor or the administrator, the supervisory judge may allow the application of this Section where this threshold is not reached.
Article L626-30 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 83, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Credit institutions and main suppliers of goods or services shall be grouped into two committees of creditors by the administrator within thirty days from the commencement order. Each supplier of goods or services shall be a member ipso jure of the committee of the main suppliers where its claims account for more than 5% of the total claims of suppliers. The other suppliers may be members of this committee on invitation by the administrator.
The debtor shall present its proposals for the drawing up of the draft plan provided for in Article L626-2 to the committees of creditors within two months from the date on which the committees are formed, which may be extended once for two more months by the supervisory judge on motion of the debtor or the administrator.
After discussion with the debtor and the administrator, the committees will vote on the draft plan, modified if necessary, at the latest within thirty days after the proposals have been sent by the debtor. The decision shall be made by each committee by a majority vote of its members, representing at least two-thirds of the total amount of the claims of all the members of the committee of creditors as indicated by the debtor and certified by its statutory auditor(s) or, where none has been appointed, prepared by its public accountant.
The draft plan adopted by the committees of creditors shall be subject neither to the provisions of Article L626-12 nor to those in the second and third paragraphs of Article L626-18. Local authorities and their public bodies may not be members of the committee of main suppliers.
Article L626-31 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 83, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the draft plan has been adopted by the committee of creditors according to the provisions of Article L626-30, the court will ensure that the interests of all of the creditors are sufficiently protected. In this case, the court shall confirm the plan with respect to the adopted draft and in the manner provided for under Section 2 of this Chapter. Its decision shall make binding the proposals accepted by each committee to all their members. Notwithstanding the provisions of Article L626-26, substantial modifications in the goals or means of the plan confirmed by the court in accordance with the first paragraph may occur only in the manner provided for under this Section.
Article L626-32 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 83, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where there are bondholders, the administrator shall summon representatives of the body of bondholders, if any, within fifteen days from the date the draft plan is sent to the committees in order to outline it to them.
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COMMERCIAL CODE Representatives of the bondholders shall thereafter convene a general meeting of bondholders within fifteen days in
order to decide on the draft. However, the failure to act or the absence of any representative of the bondholders is properly recorded by the supervisory judge, the administrator will convene the general meeting of bondholders.
The decision may relate to the total or partial abandonment of the bondholders' claims.
Article L626-33 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 83, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Creditors who are not members of the committees of creditors formed in compliance with Article L626-30 shall be consulted in the manner provided for under Articles L626-5 to L626-7. The administrator shall perform to this end the duties entrusted to the court nominee by these provisions.
The provisions of the plan regarding the creditors who are not members of the committees of creditors formed in compliance with Article L626-30 shall be confirmed in the manner provided for under Articles L626-12 and L626-18 to L626-20.
Article L626-34 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 83, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where one or other of the committees of creditors has not ruled upon the draft plan within the set time limits, where a committee of creditors has rejected the proposals presented to it by the debtor or where the court has not adopted the plan in compliance with Article L626-31, the proceedings will be resumed to prepare a plan in the manner provided for in Articles L626-5 to L626-7 in order to adopt it in the manner provided for under Articles L626-12 and L626-18 to L626-20. The proceedings will be resumed in the same manner where the debtor has not presented any proposals for a plan to the committees of creditors within the set time limits.
Article L626-35 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 83, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
A Conseil d'Etat decree shall determine the conditions for the application of this Section.
CHAPTER VII Special provisions in the absence of an administrator Articles L627-1 to
L627-4
Article L627-1 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 84, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of this Chapter will apply where no administrator has been appointed by court according to the penultimate paragraph of Article L621-4. The other provisions of this Title shall apply to the extent that they do not conflict with the provisions of this Chapter.
Article L627-2 (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 85, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The debtor shall, with the consent of the court nominee, exercise the power given to the administrator to assume executory contracts in compliance with Article L622-13. In the event of disagreement, the supervisory judge will hear the petition of any interested party.
Article L627-3 (Act No 2001-1275 of 28 December 2001, Article 152, 2002 Finance Act, Official Journal of 29 December 2001) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 86, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
During the observation period, the debtor, who may be assisted by an expert appointed by the court, shall prepare a draft plan.
The debtor shall send his proposals for the payment of the liabilities provided for in Article L626-5 to the court nominee and the supervisory judge and carry out the information and consultation formalities as provided for under Articles L623-3 and L626-8.
For the implementation of Article L626-3, a shareholders' extraordinary general meeting or a partners' meeting as well as, where their approval is necessary, the special meetings referred to under Articles L225-99 and L228-35-6 or the general meetings of the bodies referred to under Article L228-103, shall be convened in the manner provided for by a Conseil d'Etat decree. The supervisory judge shall determine the amount of the capital increase to be proposed to the meeting to reconstitute shareholders' equity.
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COMMERCIAL CODE Article L627-4 (Order No 200-916 of September 2000, Article 3, Official Journal of 22 September 2000, in force on 1 January 2002) (Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2005-845 of 26 July 2005, Article 1 I, Article 87, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
After the filing of the draft plan by the debtor with the clerk's office, the court shall make its rulings based on the report of the supervisory judge.
CHAPTER VIII Provisions applicable to the departments of Haut-Rhin, Bas-Rhin and Moselle Articles L628-1 to
L628-8
Article L628-1 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003) (Law No 2003-710 of 1 August 2003 Article 37 Official Gazette of 2 August 2003)
The provisions of the present Title apply to natural persons domiciled in the Departments of Haut-Rhin, Bas-Rhin and Moselle, and to their successors, who are neither shopkeepers nor persons listed in the trade register, and are not farmers, if they have acted in good faith but are manifestly insolvent.
Before a decision to initiate proceedings is taken, the court shall, if it considers it appropriate, appoint a competent person whose name appears on the list of approved professionals to gather full information regarding the debtor's financial and social position.
The forfeitures and prohibitions which result from personal bankruptcy do not apply to such persons. The present Article's terms of implementation are determined by decree.
Article L628-2 (Law No 2003-710 of 1 August 2003 Article 39 Official Gazette of 2 August 2003) (Law No 2003-710 of 1 August 2003 Article 39 Official Gazette of 2 August 2003)
Unless the insolvency judge grants an exemption, an inventory shall be made of the property of the persons referred to in Article L. 628-1.
Article L628-3 (Law No 2003-710 of 1 August 2003 Article 38 (I) Official Gazette of 2 August 2003) (Law No 2003-710 of 1 August 2003 Article 39 Official Gazette of 2 August 2003)
Contrary to Article L. 621-102, no verification of debts is carried out in connection with compulsory liquidation if it appears that the proceeds from realisation of the assets would be entirely consumed by the legal costs, unless the insolvency judge decides otherwise
Article L628-4 (Law No 2003-710 of 1 August 2003 Article 40 Official Gazette of 2 August 2003)
When the compulsory liquidation operations have been completed, the court may, in exceptional cases, compel the debtor to make a regular contribution towards settlement of the liabilities in the amount that it determines. In such judgments, the court appoints a commissioner to oversee execution of that obligation.
In determining the level of the contribution, the court takes the debtor's ability to pay into account in the light of his resources and his fixed expenses. The court shall reduce the level of the contribution if the debtor's resources decrease or his expenses increase.
Payment thereof must be completed within two years. The present Article's terms of implementation are determined by decree.
Article L628-5 (Law No 2003-710 of 1 August 2003 Article 41 Official Gazette of 2 August 2003)
In addition to the cases referred to in Article L. 622-32, the creditors also recover their right to bring an individual action against the debtor when the court, at its own initiative or at the behest of the insolvency judge, pronounces non-fulfilment of the obligation referred to in Article L. 628.4.
Article L628-6 (Law No 2003-710 of 1 August 2003 Article 42 Official Gazette of 2 August 2003)
Details of the judgment ordering compulsory liquidation remain in the file referred to in Article L. 333-4 of the Consumer Code for a period of eight years and are no longer entered in the debtor's police record.
Article L628-7 (Law No 2003-710 of 1 August 2003 Article 38 (I) Official Gazette of 2 August 2003)
The basis of assessment and the payment arrangements for the tax on legal expenses in cases of insolvency or compulsory liquidation are provisionally determined pursuant to the provisions of the local laws.
Article L628-8 (Law No 2003-710 of 1 August 2003 Article 38 (I) Official Gazette of 2 August 2003)
The provisions of Article 1 of Law No. 75-1256 of 27 December 1975 relating to certain real-property sales in the Departments of Haut-Rhin, Bas-Rhin and Moselle cease to be applicable to the forced sale of real property included in
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COMMERCIAL CODE the assets of a debtor who has been the subject of administration proceedings brought subsequent to 1 January 1986.
TITLE III The reorganization procedure Articles L631-1 to
L631-22
CHAPTER I Commencement and conduct of the reorganization procedure Articles L631-1 to
L631-22
Article L631-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 88, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
This article institutes a reorganization procedure available to any debtor referred to under Articles L631-2 or L631-3 which, being unable to pay its accrued liabilities with its quick assets, is in a state of cessation of payments.
The purpose of the reorganization procedure is to allow the continuation of the business's operations, the maintenance of employment and the settlement of its liabilities. It shall give rise to a plan to be confirmed by a court ruling at the end of an observation period and, as the case may be, to the formation of two committees of creditors according to the provisions of Articles L626-29 and L626-30.
Article L631-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 88, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The reorganization procedure shall apply to traders, persons registered with the craftsmen's register, farmers, other natural persons running an independent professional activity, including an independent professional person with a statutory or regulated status or whose designation is protected, as well as private-law entities.
No new reorganization proceedings may be commenced with respect to any person already subject to such proceedings or liquidation proceedings, for as long as the operations of the plan resulting from it have not been terminated or the liquidation proceedings have not been closed.
Article L631-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 88, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Likewise, the reorganization procedure will apply to those persons referred to under the first paragraph of Article L631-2 after the end of their professional activity if all or part of their liabilities arises from it.
Where any trader, any person registered with the craftsmen's register, any farmer, any other natural person running an independent professional activity, including an independent professional person with a statutory or regulated status or whose designation is protected, dies while in a state of cessation of payments, a case may be filed with the court within one year from the date of death, upon the writ of summons of a creditor, whatever the nature of the creditor's claim, or upon the petition of the Public prosecutor. The court may also initiate a case of its own motion within the same time limit and any heir of the debtor may bring an action before it with no time limit.
Article L631-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 89, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The commencement of these proceedings must be requested by the debtor at the latest within the forty-five days following the cessation of payments if the debtor has not, within this time limit, requested the commencement of conciliation proceedings.
If the conciliation proceedings fail, the court will initiate a case of its own motion in order to rule upon the commencement of reorganization proceedings if it appears from the conciliator's report that the debtor is in a state of cessation of payments.
Article L631-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 89, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where there are no conciliation proceedings pending, the court may also initiate a case of its own motion or on motion of the Public prosecutor for the purpose of commencing reorganization proceedings.
Under the same condition, the proceedings may also be commenced upon a writ of summons of a creditor, whatever the nature of its claim. However, where the debtor has ceased its professional activity, the writ of summons must be filed within one year from:
1. the striking out from the Register of Commerce and Companies. Where a legal entity is concerned, the time limit will run from the date of the striking out subsequent to the publication of the closing of the liquidation operations;
2. the cessation of activity where a person registered with the craftsmen's register, a farmer, a person running an independent professional activity, including an independent professional person with a statutory or regulated status or whose designation is protected, is concerned;
3. the publication on the completion of liquidation operations, where a legal entity not subject to registration is concerned.
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COMMERCIAL CODE In addition, the proceedings may be commenced with respect to a debtor running an agricultural activity that is not
incorporated in the form of a commercial company only if a case has been filed with the president of the Tribunal de grande instance (High court), prior to the writ of summons, for the appointment of a conciliator in compliance with the provisions of Article L351-2 of the Rural Code.
Article L631-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 89, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The works council or, in the absence of a works council, the employee delegates may inform the president of the court or the Public prosecutor of any fact showing the debtor is in a state of cessation of payments.
Article L631-7 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 89, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Articles L621-1, L621-2 and L621-3 shall apply to reorganization proceedings.
Article L631-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 89, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court shall determine the date of the cessation of payments. If a date is not being determined, the date of the cessation of payments shall be deemed to be that of the issuance of the order recognizing it.
The date of the cessation of payments may be moved once or more times, without however going back more than eighteen months before the date of issuance of the order recognizing the cessation of payments. Except in cases of fraud, it may not be moved to a date prior to the final decision endorsing an amicable agreement in compliance with Article L611-8 (II).
An action may be filed with the court by the administrator, the court nominee or the Public prosecutor to that effect. The court shall judge the case after hearing or duly summoning the debtor.
The petition for modifying this date must be filed with the court within a year following the issuance of the commencement order.
Article L631-9 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 89, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Articles L621-4 to L621-11 shall apply to the reorganization proceedings. The court may initiate an action of its own motion for the purposes referred to under the third and fourth paragraphs of Article L621-4.
Article L631-10 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 90, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
As of the date of the commencement order, the de jure or de facto managers, whether remunerated or not, may transfer shares in the company, equity instruments or securities giving rights to the capital representing their corporate rights in the entity to which the commencement order applies only in the manner provided for by the court, under the penalty of nullity.
Equity instruments or securities giving rights to the capital shall be transferred to a special blocked account, opened by the administrator in the name of the holder and held by the company or a financial intermediary as the case may be. No transactions may be made on the account without the permission of the supervisory judge.
The administrator shall mention, if necessary, the prohibition to transfer the shares of the managers in the legal entity's registers.
Article L631-11 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 91, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The supervisory judge will determine the remuneration for the duties performed by the debtor if the debtor is a natural person or by the managers of a legal entity.
In the absence of remuneration, the persons referred to in the preceding paragraph may obtain subsidies to be fixed by the supervisory judge for themselves or their families, out of the assets.
Article L631-12 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In addition to the powers which are conferred upon them by this Title, the duties of the administrator(s) shall be set by the court.
The court may require them jointly or separately to assist the debtor in all or certain management operations, or to carry out the entire management of the business, or part of it, alone. Where the administrator (s) is (are) required to carry out the entire management of the business alone and all the thresholds fixed by the fourth paragraph of Article L621-4 have been reached, the court will appoint one or more experts to assist them in carrying out their management tasks. In other cases, the court may appoint them. The president of the court shall determine the remuneration of the experts, which shall be covered by the insolvency estate.
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COMMERCIAL CODE In performing his duties, the administrator must comply with the legal and contractual obligations incumbent upon
the debtor. The court may alter the duties of the administrator at any time, on his motion or on motion of the court nominee or
that of the Public prosecutor or of its own motion. The administrator will operate, under his signature, any bank or Post Office accounts of the debtor where the debtor
is prohibited from so doing under Articles L131-72 or L163-6 of the Monetary and Financial Code.
Article L631-13 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
From the date on which the proceedings are commenced, third parties shall be allowed to submit offers to the administrator in relation to the maintenance of the activity of the business through a partial or complete assignment of the business's assets according to the provisions of Section I of Chapter II of Title IV.
Article L631-14 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Articles L622-2 to L622-9 and L622-13 to L622-33 shall apply to reorganization proceedings. II - However, natural persons that are co-obligors and those who have consented to a joint or an independent
guarantee may not avail themselves of the provisions provided for in the first paragraph of Article L622-28.
Article L631-15 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - At the latest within two months from the date of issuance of the commencement order, the court shall order the observation period to be continued if it appears to the court that the business will have sufficient financial resources. However, where the debtor runs an agricultural activity, this time limit may be modified in accordance with the agricultural year in progress as well as the specific practices with respect to the farm's products.
The court shall rule upon the case based on a report filed by the administrator or, where one has not been appointed, by the debtor.
II - At any time during the observation period, the court, on motion of the debtor, the administrator, the court nominee, one of the controllers, the Public prosecutor or of its own motion may order the partial cessation of the activity or will pronounce its liquidation, if the conditions of Article L640-1 are fulfilled.
It shall rule upon the case after hearing or duly summoning the debtor, administrator, court nominee, controllers, and works council or, in the absence of a works council, the employee delegates and after having received the opinion of the Public prosecutor.
Where the court pronounces the liquidation of the debtor, it will terminate the observation period and the duties of the administrator subject to the provisions of Article L641-10.
Article L631-16 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If it appears, during the observation period, that the debtor has enough money to pay off the creditors and the fees and related costs of the proceedings, the court may terminate the proceedings.
It shall rule upon the case on motion of the debtor in the manner provided for by the second paragraph of Article L631-15 (II).
Article L631-17 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where dismissals for economic reasons are urgent, inevitable and indispensable during the observation period, the administrator may be allowed by the supervisory judge to implement these dismissals.
Before applying to the supervisory judge, the administrator shall consult the works council or, in the absence of a works council, the employee delegates in the manner provided for by Article L321-9 of the Labour Code and shall inform the competent public authority referred to under Article L321-8 of the same Code. He shall attach, in support of the motion transmitted to the supervisory judge, the opinion received and supporting documents of the steps he has taken to facilitate the compensation and re-employment of the dismissed employees.
Article L631-18 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - The provisions of Chapters III, IV and V of Title II of this Book shall apply to reorganization proceedings. II - However, the appeal provided for in the first paragraph of Article L624-3 will also be available to the
administrator where he is assigned to manage the business. For the application of Article L625-1, the court nominee who is summoned to appear before the Labour or,
otherwise, the claimant shall summon the institutions referred to under Article L143-11-4 of the Labour Code to appear before the Labour Court.
In addition, for the application of Article L625-3 of this Code, the institutions referred to under Article L143-11-4 of
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COMMERCIAL CODE the Labour Code shall be summoned by the court nominee or, otherwise, by the petitioning employees, within ten days from the issuance of the commencement order of the reorganization proceedings or from the issuance of the order converting safeguard proceedings into reorganization proceedings. Likewise, pending cases before the Labour court on the date of issuance of the commencement order will be continued in the presence of the administrator where he is assigned to manage the business, or after having duly summoned the administrator.
Article L631-19 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - The provisions of Chapter VI of Title II shall apply to the reorganization plan. II - Where the plan provides for dismissals on economic grounds, the plan may be confirmed by the court only after
having consulted the works council or, in the absence of a works council, the employee delegates in the manner provided for in Article L321-9 of the Labour Code and only after the competent public authority referred to under Article L321-8 of the same Code has been informed.
The plan shall state in particular the dismissals that must be made within one month following the date of issuance of the order. Within this time limit, these dismissals shall be made by an ordinary notification by the administrator, subject to the rights related to notice of termination provided for by law or collective bargaining agreements.
Article L631-20 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
By way of exception to the provisions of Article L626-11, co-obligors and those who have consented to a joint or independent guarantee may not avail themselves of the provisions of the plan.
Article L631-21 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of Chapter VII of Title II shall apply to the reorganization plan. During the observation period, the business operations shall be carried on by the debtor, which exercises the
powers granted to the administrator by Article L631-17 and carries out the notifications provided for in the second paragraph of II of Article L631-19.
The court nominee shall perform the powers granted to the administrator by the second and third paragraphs of Article L631-10.
Article L631-22 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 92, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Based on the report of the administrator, the court may order the assignment of all or part of the business as a going concern if the debtor is unable to reorganize the business on its own. Except for Article L642-2 (I), the provisions of Section I of Chapter II of Title IV shall apply to this assignment. The court nominee shall perform the duties entrusted to the liquidator.
The administrator shall remain in office in order to carry out all acts necessary to implement the assignment.
TITLE IV The liquidation procedure Articles L640-1 to
L644-6
PRELIMINARY CHAPTER Commencement and conduct of liquidation proceedings Articles L640-1 to
L640-6
Article L640-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 97, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
This article institutes a liquidation procedure available to any debtor mentioned in Article L640-2 that is in a state of cessation of payments and whose reorganization is manifestly impossible.
The purpose of the liquidation procedure is to end the business activity or to sell the debtor's assets through a general or separate sale of its interests and property.
Article L640-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 97, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The liquidation procedure shall apply to all traders, persons registered with the craftsmen's register, farmers, other natural persons running an independent professional activity, including an independent professional person with a statutory or regulated status or whose designation is protected, as well as private law entities.
No other liquidation proceedings may be commenced with respect to a person already subject to proceedings that have not yet been closed.
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COMMERCIAL CODE Article L640-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 97, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The liquidation procedure will also be available to those persons referred to under the first paragraph of Article L640-2 once they have ceased their professional activity if all or part of their liabilities arises from it.
Where a trader, a person registered with the craftsmen's register, a farmer or any other person running an independent professional activity, including an independent professional person with a statutory or regulated status or whose designation is protected, dies in a state of cessation of payments a case may be filed with the court, within one year from the date of death, upon the writ of summons of a creditor, whatever the nature of the creditor's claim, or upon the petition of the Public prosecutor. The court may also initiate a case of its own motion within the same time limit. Any heir of the debtor may bring an action before the court, with no time limit.
Article L640-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 97, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The commencement of these proceedings must be requested by the debtor at the latest within forty-five days following the cessation of payments if the debtor has not requested the commencement of conciliation proceedings within this time limit.
In the event of failure of the conciliation proceedings, if the court notes, while ruling according to the second paragraph of Article L631-4, that the conditions referred to under Article L640-1 are satisfied, it will commence liquidation proceedings.
Article L640-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 97, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where there are no conciliation proceedings pending, the court may also initiate a case of its own motion or on motion of the Public prosecutor for the purpose of commencing liquidation proceedings.
Under the same condition, the proceedings may also be commenced upon a writ of summons of a creditor, whatever the nature of its claim. However, where the debtor has ceased its professional activity, the writ of summons must be filed within one year from:
1. the striking out from the Register of Commerce and Companies. Where a legal entity is concerned, the time limit will run from the date of the striking out subsequent to the publication of the closing of the liquidation operations;
2. the cessation of activity where a person registered with the craftsmen's register, a farmer, a person running an independent professional activity, including an independent professional person with a statutory or regulated status or whose designation is protected, is concerned;
3. the publication on the completion of liquidation operations where a legal entity not subject to registration is concerned.
In addition, the proceedings may be commenced with respect to a debtor running an agricultural activity that is not incorporated in the form of a commercial company only if a case has been filed with the president of the Tribunal de grande instance (High court), prior to the writ of summons, for the appointment of a conciliator in compliance with the provisions of Article L351-2 of the Rural Code.
Article L640-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 97, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The works council or, in the absence of a works council, the employee delegates may inform the president of the court or the Public prosecutor of any fact showing the debtor is in a state of cessation of payments.
CHAPTER I Liquidation order Articles L641-1 to
L641-15
Article L641-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 98, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Articles L621-1 and L621-2 shall apply to liquidation proceedings. II - In the order commencing the liquidation proceedings, the court shall appoint the supervisory judge and, as
liquidator, a registered court nominee or a person chosen according to the first paragraph of Article 812-2 (II). The court may, at the initiative of the supervisory judge, on motion of the Public prosecutor or of its own motion, replace the liquidator, or appoint one or more assistant liquidators. The debtor or the creditor may ask the supervisory judge to apply to the court to this end.
Where the debtor runs an independent professional activity with a statutory or regulated status or a person whose designation is protected, the supervisory body or authority, if any, may apply to the Public prosecutor for the purposes referred to under the first paragraph.
An employees' representative shall be appointed in the manner provided for by the second paragraph of Article L621-4. He shall be replaced in the manner provided for by the fifth paragraph of Article L621-7. He shall perform the duties provided for in Article L625-2.
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COMMERCIAL CODE The controllers shall be appointed and carry out their functions in the same manner as those provided for in Title II. III - Where the liquidation is pronounced during the observation period of safeguard or reorganization proceedings,
the court will appoint the court nominee as liquidator. However, the court may, through a reasoned order, on motion of the administrator, a creditor, the debtor or the Public prosecutor, appoint another person as liquidator under the conditions provided for by Article L812-2.
The court may replace the liquidator or appoint one or more assistant liquidators in accordance with the rules provided for in (II) of this article.
Where the debtor runs an independent professional activity with a statutory or regulated status or a person whose designation is protected, the supervisory body or authority, if any, may apply to the Public prosecutor for the purposes referred to under the first two paragraphs of III.
IV - The date of the cessation of payments shall be fixed in the manner provided for in Article L631-8.
Article L641-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 99, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The liquidator will draw up a report on the debtor's situation within a month of his appointment except where the court pronounces the liquidation during the observation period. The provisions of the second paragraph of Article L621-9 shall apply.
The simplified liquidation procedure provided for under Chapter IV of this Title will be applicable if it appears that the debtor's assets include no immovable property, that the number of its employees during the six months prior to the commencement of the proceedings and its sales turnover excluding tax are equal to or less than the thresholds fixed by a Conseil d'Etat decree.
Article L641-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 100, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The order commencing the liquidation proceedings shall have the same effect as those provided for safeguard proceedings in the first and fourth paragraphs of Article L622-7 and in Articles L622-21, L622-22, L622-28 and L622-30.
The creditors shall submit their claims to the liquidator in the manner provided for in Articles L622-24 to L622-27 and L622-31 to L622-33.
Article L641-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 101, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The liquidator shall carry out liquidation operations at the same time as the verification of the claims. He may initiate or pursue actions that are within the competence of the court nominee.
The verification of unsecured claims need not be made if it appears that the proceeds of the asset sales will be totally absorbed by legal fees and secured claims, unless, in the case of a legal entity, there is a reason for holding the de jure or de facto managers liable for all or part of the liabilities pursuant to Articles L651-2 and L652-1.
The liquidator shall carry out the duties entrusted to the administrator and the court nominee under Articles L622-6, L622-20, L622-22, L622-23, L624-17, L625- 3, L625-4 and L625-8.
For the purpose of drawing up the inventory referred to under Article L622-6, the court shall appoint an auctioneer, a bailiff, a notary or an accredited commodity broker.
An estimate of the debtor's assets shall be made by the persons referred to under the fourth paragraph. The dismissals made by the liquidator pursuant to the decision pronouncing the liquidation shall be subject to the
provisions of Articles L321-8 and L321-9 of the Labour Code.
Article L641-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 102, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the liquidation is pronounced during the observation period of safeguard proceedings or of reorganization proceedings, the liquidator will carry out the liquidation operations at the same time as, where appropriate, he completes the verification of claims and determines the priority order of the creditors. He shall continue the legal actions initiated prior to the issuance of the liquidation order by the administrator or by the court nominee and may initiate new legal actions that are within the competence of the court nominee.
Article L641-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
No relatives or affines, up to the fourth degree included, of the head of the business or of the managers if the debtor is a legal entity, may be appointed as liquidator.
Article L641-7 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 103, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The liquidator shall inform the supervisory judge, the debtor and the Public prosecutor of the progress of the proceedings, at least every three months.
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COMMERCIAL CODE Article L641-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Any sum received by the liquidator in the performance of his duties must immediately be placed on a deposit account with the Caisse des dépôts et consignations. If deposits are delayed, the liquidator must pay interest on the unpaid sums at the legal rate of interest plus five percent.
Article L641-9 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 104, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - The order commencing or pronouncing the liquidation shall also give rise, from its date of issuance, to the divestment of the debtor from the management and the right to dispose of its assets, including even those acquired by any means, until the closing of the liquidation proceedings. The debtor's rights and rights of action over its estate shall be exercised by the liquidator during the liquidation proceedings.
However, the debtor may initiate or join the case as a civil party with the aim of holding the perpetrator of a crime or a misdemeanour of which the debtor has been a victim liable.
The debtor shall also perform any acts, and exercise rights and rights of action that are not included within the duties of the liquidator or of the administrator, where one is appointed.
II - Where the debtor is a legal entity, the managers in office on the date of issuance of the liquidation order shall remain in office, unless the articles of association or a resolution passed by a shareholders' or partners' general meeting provide otherwise. In case of need, a representative may be appointed in their place by order of the president of the court on motion of any interested party, the liquidator or the Public prosecutor.
The registered office shall be deemed to be fixed at the domicile of the legal representative of the entity or of the appointed representative.
III - Where the debtor is a natural person, he may not carry out any of the activities provided for in the first paragraph of Article L640-2, during the liquidation proceedings.
Article L641-10 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 105, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If the assignment, in whole or in part, of the business as a going concern can be considered or if the public interest or that of the creditors demands it, the maintenance of the activities may be allowed by the court for the maximum period to be determined by a Conseil d'Etat decree. It may be extended on motion of the Public prosecutor for a period to be determined in the same way. Where an agricultural activity is involved, the period will be determined by the court by reference to the current agricultural year as well as to the practices specific to the farm's products. The provisions of Article L641-13 shall apply to claims arising during this period.
The liquidator shall manage the business. He may require the performance of executory contracts and exercise the powers conferred on the administrator by Article L622-13.
He may dismiss employees under the conditions provided for in Article L631-17. Where appropriate, he shall prepare an assignment plan, carry out the acts necessary to implement the plan,
receive and distribute the price of the assignment However, where the number of persons employed by the business or the sales turnover exceeds thresholds to be
fixed by a Conseil d'Etat decree or, where necessary, the court will appoint an administrator to manage the business. In this case, by way of exception to the preceding paragraphs, the administrator shall be subjected to the provisions of Article L622-13. He shall prepare the assignment plan, carry out the acts necessary to implement the plan and, under the conditions provided for in Article L631-17, he may dismiss employees.
Where the administrator does not have the necessary cash to continue the business's activities, he may require the liquidator to provide it with the permission of the supervisory judge.
The liquidator or the administrator, where one has been appointed, shall perform the functions entrusted to the administrator or court nominee, as the case may be, by Articles L622-4 and L624-6.
Article L641-11 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 106, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The supervisory judge shall perform the duties entrusted to him by Articles L621-9, L623-2 and L631-11, the first paragraph of Article L622-13 and the fourth paragraph of Article L622-16.
Information held by the Public prosecutor shall be transmitted to him according to the rules provided for in the second paragraph of Article L621-8.
The liquidator and the administrator, where one has been appointed, shall receive all information useful for carrying out their duties from the supervisory judge.
Article L641-12 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 107, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Judicial liquidation shall not automatically lead to the termination of leases of immovable properties used for the business operations.
The liquidator or the administrator may continue the lease or assign it under the conditions stipulated in the
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COMMERCIAL CODE agreement entered into with the lessor with all the rights and obligations attached therein. In the event of assignment of lease, the provisions of Article L622-15 shall apply.
If the liquidator or the administrator decides not to continue the lease, it will be terminated upon request. The termination shall take effect on the date of the request.
The lessor may request the termination of the lease by court order or have its automatic termination recorded for reasons existing prior to the issuance of the order commencing the liquidation proceedings or, where the latter has been pronounced following safeguard or reorganization proceedings, for reasons existing prior to the issuance of the order commencing the previous proceedings. The lessor must, if it has not done so already, file this request within three months as of the publication of the order commencing the liquidation proceedings.
The lessor may also request the termination of the lease by court order or have its automatic termination recorded because of a default in the payment of the rent or tenant's expenses related to the occupancy after the issuance of the commencement order of the liquidation proceedings, under the conditions provided for in the third, fourth and fifth paragraphs of Article L622-14.
The lessor's lien shall be determined according to the first three paragraphs of Article L622-16.
Article L641-13 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 108, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Claims arising regularly after the issuance of the order commencing or pronouncing the judicial liquidation or, in the latter case, after the issuance of the commencement order of the safeguard or reorganization proceedings prior to the judicial liquidation, for the needs of the proceedings or for the needs, as the case may be, of the former observation period, or because of goods or services provided to the debtor with respect to its professional activity subsequent to one of these orders, shall be paid as they fall due.
II - If they are not paid as they fall due, they will be paid according to their preferential lien before all other claims, except for the claims secured by the lien provided for in Articles L143-10, L143-11, L742-6 and L751-15 of the Labour Code, those that are secured by the lien for legal fees, those that are secured by the lien provided for in Article L611-11 of this Code as well as those that are secured by a security over immovable assets or those secured by a special security over movable assets to which a right of retention is attached or those formed in compliance with Chapter V of Title II of Book V.
III - Their payment shall be made in the following order: 1°. claims of wages and salaries for which funds have not been advanced in compliance with Articles L143-11-1 to
L143-11-3 of the Labour Code; 2°. legal fees; 3°. loans and claims arising from the performance of continued contracts according to the provisions of Article
L622-13 and where the other party accepts deferred payments. These loans and the moratorium shall be allowed by the supervisory judge within the limits necessary for the continuation of business operations and shall be published. In the event of termination of a contract that had been continued in a proper manner, compensation and penalties will be excluded from the application of this article.
4°. sums that have been advanced in application of Article L143-11-1 (3°) of the Labour Code; 5°. other claims according to their priority order. IV - Unpaid claims will lose the lien provided for by this article if they have not been notified to the court nominee or
the administrator, where one has been appointed, or the liquidator, within six months from the publication of the order commencing or pronouncing the liquidation proceedings or, failing this, within one year from the publication of the order confirming the assignment plan.
Article L641-14 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 109, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of Chapters IV and V of Title II of this Book on the determination of the debtor's assets and the payment of claims resulting from an employment contract as well as the provisions of Chapter II of Title III of his Book on the nullity of certain acts shall apply to liquidation proceedings.
However, for the application of Article L625-1, the liquidator summoned before the Labour court or, the petitioner shall summon the institutions referred to under Article L143-11-4 of the Labour Code before the Labour court.
To implement Article L625-3 of this Code, the institutions referred to under Article L143-11-4 of the Labour Code shall be summoned by the liquidator or by the petitioning employees, within ten days from the issuance of the commencement order of the liquidation proceedings or of the order pronouncing the same. Likewise, the proceedings pending before the Labour court on the day of issuance of the commencement order shall be carried on in the presence of the administrator, where one has been appointed, or after he has been duly summoned.
Article L641-15 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 110, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the course of the liquidation proceedings, the supervisory judge may order that the liquidator or the administrator, where one has been appointed, receive all correspondence sent to the debtor.
The debtor, having been informed, may be present when the correspondence is being opened. However, any summons before a court, any notice of orders or any other correspondence of personal nature must immediately be
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COMMERCIAL CODE given or returned to the debtor.
The supervisory judge may allow the liquidator to have access to the electronic mail received by the debtor under the conditions to be determined by a Conseil d'Etat decree.
Where the debtor is engaged in an activity subject to professional confidentiality rules, the provisions of this article will not apply.
CHAPTER II Realisation of assets Articles L642-1 to
L642-25
SECTION I Assignment of the Business as a going concern Articles L642-1 to
L642-17
Article L642-1 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Act No 2006-11 of 5 January 2006, Article 14 V, Official Journal of 6 January 2006)
The assignment of the business is aimed at maintaining the activities capable of being operated autonomously, maintaining all or part of the related employment contracts and settling the liabilities.
The assignment may relate to all or some of the assets. In the latter case, it shall concern a group of means of production that form one or more complete and autonomous branch or branches of activity.
Where such a group consists mainly of a right to a farm lease, the court may, subject to rights of indemnity for the outgoing lessee and notwithstanding any other provisions governing the agricultural tenancy agreement, either allow the lessor, his spouse or one of his descendants to take back the business in order to operate it or assign the farm lease to another lessee proposed by the lessor or, if none, to any potential lessee whose offer has been received under the conditions provided for by Articles L642-2, L642-4 and L642-5. Provisions relating to the exercise of control over agricultural businesses (contrôle des structures des exploitations agricoles) shall not apply. However, if several offers have been received, the court will take into account the provisions of Article L331-3 (1°) to (4°) and (6°) to (9°) of the Rural Code.
Where a debtor, who is a natural person is an independent professional person with a statutory or regulated status or whose designation is protected, the assignment may only relate to tangible assets. However, where a public or law official is concerned, the liquidator may perform the debtor's right to present a successor to the Keeper of the Seals, the Minister of Justice.
Article L642-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Where the court deems that the total or partial assignment of the business as a going concern may be considered, it will allow the continuation of operations and set the time limit during which purchase offers must be sent to the liquidator and to the administrator, where one has been appointed.
However, if offers received in compliance with Article L631-13 meet the requirements provided for under (II) of this article and if they are satisfactory, the court may decide not to apply the preceding paragraph.
II - All offers must be in writing and state: 1°. the precise identification of the assets, rights and contracts included in the offer; 2°. the forecasts for activity levels and financing; 3°. the price offered, payment conditions, the status of the contributors of capital and, where appropriate, the status
of their guarantors. If the offer includes a recourse to borrowing, it must state the conditions, in particular the duration; 4°. the date of the assignment; 5°. the level and prospects for employment needed for the activity considered; 6°. the performance guarantees given; 7°. the forecasts for the sale of assets during the two years following the assignment; 8°. the duration of each of the commitments made by the offeror. III - Where the debtor is an independent professional person with a statutory or regulated status or whose
designation is protected, the offer must also state the assignee's professional status. IV - The liquidator or the administrator, where one is appointed, shall inform the debtor, the employees'
representative and the controllers of the content of the offers received. He shall file them with the court clerk's office where any interested party may consult them.
They shall be notified, where appropriate, to the debtor's supervisory body or relevant authority. V - The offer may neither be modified, except in a manner more favourable to the aims referred to under the first
paragraph of Article L642-1, nor withdrawn. It shall be binding on the offeror until the issuance of the court order confirming the plan.
Where an appeal against the order confirming the plan is filed, only the assignee will remain bound by his offer.
Article L642-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1
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COMMERCIAL CODE January 2006 subject to Article 190)
The debtor, the de jure or de facto manager of the legal entity subject to liquidation proceedings, the relatives or affines up to the second degree included of the managers or the debtor if he is a natural person, persons who are or were controllers during the proceedings shall not be allowed, directly or through an agent, to present an offer. Likewise, these persons are prohibited from buying, directly or indirectly, within the five years following the assignment, all or part of the assets in the liquidation proceedings, as well as from buying stock or shares in the capital of any company or partnership having, directly or indirectly, as part of its assets, all or part of these assets, as well as securities giving a right to the capital of this company or partnership within the same period.
However, where an agricultural activity is involved, the court may make an exception to these prohibitions and allow the assignment to one of the persons referred to under the first paragraph, excluding the controllers. In the other cases, the court, on motion of the Public prosecutor, may allow the assignment to one of the persons referred to under the first paragraph, excluding the controllers, by a specially reasoned ruling, after having sought the opinion of the controllers.
Any act entered into in violation of the provisions of this article shall be declared void on motion of any interested party or of the Public prosecutor, filed within three years from the date of the conclusion of the act. Where the act is subject to publication formalities, the time limit will run from the date of publication.
Article L642-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The liquidator or the administrator, where one is appointed, shall provide the court with all the material that will help it to examine the seriousness of the offer as well as whether the offeror is a third party within the meaning of the provisions of Article L642-3.
He shall also provide the court with all the material that will help to assess the terms under which liabilities will be settled, in particular with respect to the price offered, the assets remaining to be recovered or sold, the debts arising in the period of continuation of business operations and, where appropriate, the other debts for which the debtor remains still liable.
Article L642-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
After having received the opinion of the Public prosecutor and after having heard or duly summoned the debtor, the liquidator, the administrator where one is appointed, the representatives of the works council or, in the absence of a works council, the employee delegates and the controllers, the court will accept the offer which allow the most prolonged maintenance of employments attached to the assets assigned and the payment of the creditors, under the best conditions and which presents the best guarantees for its implementation.
The court shall confirm one or more assignment plans. The hearing must be held in the presence of the Public prosecutor where the proceedings relate to a natural person
or a legal entity whose number of employees, sales turnover excluding tax or assets exceed(s) the thresholds fixed by a Conseil d'Etat decree.
The order confirming the plan shall make its provisions binding on anyone. Where the plan provides for dismissals on economic grounds, it may be confirmed by the court only after having
consulted the works council or, in the absence of a works council, the employee delegates under the conditions provided for in Article L321-9 of the Labour Code and having informed the competent public authority referred to under Article L321-8 of the same Code. The plan shall state in particular the dismissals that must be made within one month starting from the date of issuance of the order. Within this time limit, these dismissals shall be made by way of an ordinary notification by the liquidator, or by the administrator, where one has been appointed, subject to the rights related to notice of termination of employment contracts provided for by law or collective bargaining agreements or contracts.
Article L642-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Substantial modifications in the aims or means of the plan may be made only by the court, on motion of the assignee.
The court shall rule upon the case after having heard or duly summoned the liquidator, the administrator where one is appointed, the controllers, the representatives of the works council or, in the absence of a works council, the employee delegates and any interested person and after having received the opinion of the Public prosecutor.
However, the amount of the price of the assignment as determined in the order confirming the plan may not be modified.
Article L642-7 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190 Correction JORF 22 October 2005)
The court will determine the finance leases, rental contracts or contracts for the supply of goods or services necessary for the maintenance of activity based on the views of the debtor's contracting parties transmitted to the liquidator or the administrator, where one is appointed.
The order confirming the plan shall result in the assignment of these contracts, even if the assignment is preceded by a trading lease arrangement [location-gérance] provided for in Article L642-13.
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COMMERCIAL CODE These contracts must be performed in the conditions in force on the day of the commencement of the proceedings,
not withstanding any clause to the contrary. In the event of the assignment of a finance lease contract, the lessee may exercise the option to purchase only after
payment of the sums remaining due within the limit of the value of the assets determined by the common agreement of the parties or, failing this, by the court at the date of the assignment.
Article L642-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
For the implementation of the plan confirmed by the court, the liquidator or the administrator, where one is appointed, shall perform all acts necessary for the completion of the assignment. While these acts are being carried out and on proof that the price of the assignment has been deposited or an equivalent guarantee has been given, the court may entrust the assignee, on the assignee's motion and under its responsibility, with the management of the business assigned.
Where the assignment includes the goodwill, no increase in price (surenchère) will be allowed.
Article L642-9 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
As long as the price of the assignment has not been fully paid, the assignee may not alienate or give in a trading lease arrangement the tangible or intangible assets acquired, other than inventories.
However, partial or complete alienation, use as security, leasing or inclusion in a trading leasing arrangement may be allowed by the court upon a report by the liquidator who must first consult the works council or, in the absence of a works council, the employee delegates. The court must take into consideration the guarantees offered by the assignee.
Any substitution of the assignee must be allowed by the court in the order confirming the plan, without prejudice to the implementation of the provisions of Article L642-6. The person whose offer has been accepted by the court shall be a solidary guarantor for the performance of commitments subscribed by him.
Any act entered into in violation of the provisions of the previous paragraphs shall be declared void on motion of any interested party or of the Public prosecutor, filed within three years from the date of the conclusion of the act. Where the act is subject to publication formalities, the time limit will run from the date of publication.
Article L642-10 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court may attach a clause to the assignment plan providing that all or part of the assets assigned may not be alienated, for a time fixed by the court.
The publication of this clause shall be carried out under the conditions provided for in a Conseil d'Etat decree. Any act entered into in violation of the provisions of the first paragraph shall be declared void on motion of any
interested party or of the Public prosecutor, filed within three years from the date of the conclusion of the act. Where the act is subject to publication formalities, the time limit will run from the date of publication.
Article L642-11 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The assignee shall report to the liquidator on the implementation of the provisions provided for in the assignment plan.
If the assignee does not fulfil its commitments, the court may, on motion either of the Public prosecutor, or of the liquidator, of a creditor, of any interested party or of its own motion, after having received the opinion of the Public prosecutor, pronounce the rescission of the plan, without prejudice to any damages to be claimed.
The court may order the rescission or cancellation of any acts entered into for the implementation of the rescinded plan. Repayment of the price paid by the assignee may not be sought.
Article L642-12 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the assignment includes assets encumbered with a special lien, security or a mortgage, a portion of the price will be set aside by the court for each asset for the distribution of the price and the exercise of preferential rights.
The payment of the price of the assignment shall bar the exercise against the assignee of the creditors' rights attached to the assets.
Until full payment of the price entailing the removal of the rights registered over the assets included in the assignment, creditors holding a right to sue the asset-holder (droit de suite) may exercise it only where the asset assigned is alienated by the assignee.
However, liability for special securities over immovables and movables guaranteeing the repayment of a loan granted to the business for the financing of the incumbered asset shall be conveyed to the assignee. The latter shall be required to pay to the creditor the instalments agreed with the creditor and that remain due as of the transfer of property or, in the event of a trading lease agreement, as of taking possession of the encumbered asset. An exception to the provisions of this paragraph may be made by agreement between the assignee and the creditors holding the securities.
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COMMERCIAL CODE Article L642-13 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the order confirming the assignment plan, the court may allow the conclusion of a trading lease agreement, even in the presence of any clause to the contrary, notably in the lease of the immovable property, in favour of the person who has presented the acquisition offer which will allow the most prolonged maintenance of employments attached to the assets assigned and the payment of the creditors, under the best conditions.
The court shall rule upon the case after having heard or duly summoned the debtor, the liquidator, the administrator where one is appointed, the controllers, the representatives of the works council or, in the absence of a works council, the employee delegates and any interested person and after having received the opinion of the Public prosecutor.
Article L642-14 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of Articles L144-3, L144-4 and L144-7 on trading lease agreements shall not apply.
Article L642-15 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the event of a trading lease agreement, the business must be effectively assigned within the two years following the date of issuance of the order confirming the plan.
Article L642-16 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The liquidator may require the lessee-manager [locataire-gérant] to hand all documents and information over to him that are necessary to perform its duties. He shall report to the court on any damage to the assets included in the trading lease agreement and on any breach of obligations incumbent on the lessee manager.
The court, of its own motion or on motion of the liquidator or of the Public prosecutor, may order the termination of the trading lease agreement and the rescission of the plan.
Article L642-17 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 111, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If the lessee-manager does not fulfil his obligation to acquire the business under the terms and within the time limits fixed in the plan, the court, of its own motion or on motion of the liquidator or the Public prosecutor, shall order the termination of the trading lease agreement and the rescission of the plan, without prejudice to damages to be claimed.
However, where the lessee-manager proves that he cannot acquire the business under the terms initially stipulated for a reason for which he is not responsible, he may ask the court to modify the terms, except with respect to the price and the time limit provided for in Article L642-15. The court shall rule upon the case before the expiry of the leasing contract, after having received the opinion of the Public prosecutor and after having heard or duly summoned the debtor, the liquidator, the administrator where one is appointed, the controllers, the representatives of the works council or, in the absence of a works council, the employee delegates and any interested person.
SECTION II Assignment of the debtor's assets Articles L642-18 to
L642-21
Article L642-18 (Act No 2005-845 of 26 July 2005, Article 1 I, Article 112, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190) (Order No 2006-461 of 21 April 2006, Article 14, Official Journal of 22 April 2006, in force at the latest on 1 January 2007)
The sale of immovable property shall be carried out under the conditions provided for seizure of immovable property. However, the supervisory judge shall, after having received the remarks of the controllers, and after having heard or duly summoned the debtor and the liquidator, determine the upset price, the main terms of the sale and the terms and conditions of publication.
Where an action to seize immovable property initiated prior to the commencement of safeguard, reorganization or liquidation proceedings is suspended due to the proceedings, the liquidator may be subrogated in the rights of the seizing creditor for the acts performed by the creditor, which are deemed to have been performed on behalf of the liquidator who sells the immovable property. The seizure of the immovable property may resume at the stage it had reached when the commencement order suspended it.
Under the same conditions, the supervisory judge may, if the nature of the assets, their location or the offers received are such as to allow an amicable sale on the best conditions, order a sale by voluntary public auction at the upset price he shall determine or allow a private sale at a price and on the terms that he shall determine. In the case of a voluntary public auction, higher bids (surenchère) may always be made.
Auctions carried out pursuant to the preceding paragraphs shall entail the discharge of mortgages.
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COMMERCIAL CODE The liquidator shall distribute the proceeds of the sale and settle the priority among the creditors, subject to any
disputes that may be filed with the enforcement judge ("juge de l'exécution"). In the event of liquidation proceedings involving a farmer, the court may, by taking into account the debtor's
personal and family situation, set and grant him a grace period to leave his main residence. The terms and conditions for applying this article shall be determined by a Conseil d'Etat decree. N.B. Order 2006-461 2006-04-21 Article 23: This order shall enter into force at the entry into force of the Conseil
d'Etat decree referred to under Article 23 and, at the latest on 1 January 2007.
Article L642-19 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 113, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
After having received the opinion of the controllers, the supervisory judge shall order the sale at public auction or allow a private sale of the debtor's other assets, the latter having been heard or duly summoned. Where the sale takes place at public auction, it will be carried out as provided for, as the case may be, by the second paragraph of Article L322-2 or by Articles L322-4 or L322-7.
The supervisory judge may require that the draft for an amicable sale be submitted to him to ascertain whether the terms he has provided for have been complied with.
Article L642-20 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 114, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of Article L642-3 shall apply to the assignment of assets implemented in compliance with Articles L642-18 and L642-19. In this case, the powers of the court shall be performed by the supervisory judge.
Article L642-21 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 114, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the provisions of Article L631-22 have been applied and the debtor may not obtain court the confirmation of a reorganization plan in court, the provisions of this Title shall apply. Assets not included in the assignment plan shall be disposed of under the conditions provided for under this Section.
SECTION III Common Provisions Articles L642-22 to
L642-25
Article L642-22 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 115, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Any assignment of the business as a going concern and any sale of assets must be preceded by publication under the conditions to be determined in a Conseil d'Etat decree according to the size of the business and the nature of the assets to be sold.
Article L642-23 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 116, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Before any sale or destruction of the debtor's archives, the liquidator will inform the competent public authority for the conservation of archives. The authority has a pre-emptive right.
The liquidator, with the consent of the debtor's supervisory body or authority, shall determine the future use of archives of a debtor bound by professional confidentiality rules.
Article L642-24 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 115, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The liquidator may, with the permission of the supervisory judge and after having heard or duly summoned the debtor, compromise or settle any disputes of interest to the creditors collectively, even those relating to rights and litigation over immovable property.
If the value of the object of the compromise or settlement is not specified or exceeds the jurisdiction of final judgement of the court, the compromise or the settlement must be approved by court order.
Article L642-25 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 117, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
On payment of the debt, the liquidator so authorised by the supervisory judge may take back assets given as pledge by the debtor or as a retained assets.
If the liquidator does not do this, he must, within six months of the date of issuance of the order of the liquidation proceedings, request the supervisory judge for permission to sell this asset. The liquidator shall give the creditor notice of the permission fifteen days before the sale.
The pledgee, even if its claim has not yet been admitted, may request the supervisory judge, before the sale, that
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COMMERCIAL CODE the pledged asset be assigned to it by order of court (attribution judiciaire). If the claim is rejected, in whole or in part, the asset or its value will be returned, except for the admitted amount of the claim.
In the event of sale by the liquidator, the right of retention will automatically be transferred to the proceeds. Any registration to safeguard the pledge shall be removed upon the request of the liquidator.
CHAPTER III Settlement of liabilities Articles L643-1 to
L643-8
SECTION I Paying creditors Articles L643-1 to
L643-8
Article L643-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 118, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The order commencing or pronouncing the liquidation proceedings shall render all unmatured claims due. However, where the court allows business operations to continue because a total or partial assignment of the business as a going concern is considered, claims not yet fallen due will become due on the date of issuance of the order of assignment.
Where these claims are expressed in a currency other than that of the country where the liquidation is pronounced, they will be converted into the currency of this country at the exchange rate on the date of issuance of the order.
Article L643-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 119, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Creditors holding a special lien, a pledge or a mortgage and the Public Treasury with respect to its secured claims may, once they have submitted their claims even if these have not yet been admitted, exercise their right to bring separate action if the liquidator has not begun to sell the encumbered property within three months from the date of issuance of the order commencing or pronouncing the liquidation proceedings.
Where the court has fixed a time limit in compliance with Article L642-2, these creditors may exercise their right to bring separate action at the end of this time limit, if no offer including this asset has been presented.
In the event of sale of immovable property, the provisions of the first, third and fifth paragraphs of Article L642-18 will apply. Where an action for seizure of immovable property has been initiated prior to the date of issuance of the commencement order, the creditor holding a mortgage will be relieved, upon resumption of separate actions, from any acts and formalities carried out before the issuance of the order.
Article L643-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 120, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The supervisory judge may, of his own motion or on motion of the liquidator or of a creditor, order the payment, on a provisional basis, of a portion of a claim that has definitively been admitted.
The interim payment may be subject to the presentation by its beneficiary of a guarantee provided by a credit institution.
Where the request for an interim payment relates to a claim secured by a lien held by tax services, social security bodies, institutions managing the unemployment insurance system provided for in Articles L 351-3 and following of the Labour Code and institutions governed by Book IX of the Social Security Code, the guarantee provided for in the second paragraph will not be required.
Article L643-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If one or more distributions of sums occur prior to the distribution of the proceeds upon sale of immovable property, admitted lien creditors and mortgagees may participate in the distribution proportionately to their total claims.
After the sale of immovable property and the final settlement of the ranking among the mortgagees and secured creditors, those who rank well enough to be paid out of the proceeds of immovable property for the whole of their claim shall receive the amount fixed according to their rank only after deducting the sums they have already received.
The sums deducted shall be distributed to unsecured creditors.
Article L643-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The rights of mortgagees that rank partially in the distribution of the proceeds of immovable property shall be paid according to the amount owed to them after the settlement of the ranking of mortgages. The excess amount that they have received in previous distributions with respect to the dividend calculated after the settlement of the ranking shall be retained from the amount fixed within the framework of the order of priority of mortgages and shall be included in those sums to be distributed to unsecured creditors.
Article L643-6
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COMMERCIAL CODE (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Lien creditors or mortgagees, who are not fully paid out of the proceeds of immovable property, shall stand alongside unsecured creditors for the remaining amounts due to them.
Article L643-7 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, II Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of Articles L643-4 to L643-6 shall apply to creditors secured by a special security over a movable property, subject to the third paragraph of Article L642-25.
Article L643-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The proceeds of the assets will be divided among all creditors in proportion to their admitted claims once have been deducted the court fees and expenses incurred in the course of the liquidation proceedings, the subsidies granted to the head of the business or managers and their families and sums paid to lien creditors.
The portion corresponding to claims with respect to which the court has not yet given a final admission order and, in particular, the remuneration of managers for as long as no ruling made on their case, will be kept in reserve.
SECTION II Closing of judicial liquidation operations
CHAPTER IV Simplified liquidation procedure Articles L644-1 to
L644-6
Article L644-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 125, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The simplified liquidation procedure shall be governed by the rules applicable to normal liquidation proceedings, subject to the provisions of this chapter.
Article L644-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 124, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
By way of exception to the provisions of Article L642-19, where the court decides to apply this chapter, it will determine those assets of the debtor that may be sold in a private sale. The liquidator shall implement this within three months following the date of issuance of the order.
At the end of this period, the remaining assets will be sold at public auction.
Article L644-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 125, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
By way of exception to the provisions of Article L641-4, the verification shall be limited to those claims of which the ranking could enable payment in the distribution and to claims resulting from a contract of employment.
Article L644-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 125, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
After having carried out the verification and admission of claims and sold the assets, the liquidator shall draw up a draft distribution plan, which he files with the court clerk's office for consultation by any interested party and for publication.
Any interested party may dispute the draft distribution plan before the supervisory judge within a time limit to be determined by a Conseil d'Etat decree.
The supervisory judge shall rule upon the disputes through a ruling, which shall be published and notified to interested creditors. An appeal may be filed within a time limit to be determined by a Conseil d'Etat decree.
The liquidator shall carry out the distribution according to the draft or the order given.
Article L644-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 125, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
One year at the latest after the commencement of the procedure, the court shall pronounce the closing of the liquidation proceedings after having heard or duly summoned the debtor.
It may decide to continue the proceedings for a period not exceeding three months by way of a specially reasoned ruling.
Article L644-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 125, Official Journal of 27 July 2005, in force on 1
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COMMERCIAL CODE January 2006 subject to Article 190)
At any time, the court may decide, by way of a specially reasoned ruling, to cease applying the exceptions of this chapter.
TITLE V Liabilities and sanctions Articles L651-1 to
L650-1
Article L643-9 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 121, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the order commencing or pronouncing the liquidation proceedings, the court shall determine the time limit at the end of which the closing of the case will be examined. If the closing cannot be pronounced at the end of this time limit, the court may extend the term by a reasoned ruling.
Where there are no due liabilities anymore, or where the liquidator has sufficient sums at his disposal to satisfy the creditors or where the pursuit of the liquidation operations has become impossible due to the excess of liabilities over assets, the court will order the closing of the judicial liquidation, after having heard or duly summoned the debtor.
The liquidator, the debtor or the Public prosecutor may apply to the court at any time. The court may initiate a case of its own motion. At the expiry of a two-year period from the date of issuance of the order commencing the liquidation proceedings, any creditor may also file a case with the court seeking the closing of the proceedings.
In the event of an assignment plan, the court will pronounce the closing of the case only after having established that the assignee has performed his obligations.
Article L643-10 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The liquidator shall submit his accounts. He will answer for documents given to him in the course of the proceedings for five years beginning with the submission of his accounts.
Article L643-11 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 122, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I -The final decree closing the judicial liquidation due to an excess of liabilities over assets shall not allow creditors to recover their separate right of action against the debtor except where their claim results from:
1°. a criminal conviction of the debtor; 2°. rights attached to the person of the creditor. II -However, a guarantor or a co-obligor who has made a payment in place of the debtor may sue the latter. III - Creditors will recover their individual rights of action in the following cases: 1°. the personal disqualification of the debtor has been ordered; 2°. the debtor has been found guilty of criminal bankruptcy; 3°. the debtor or a legal entity of which he was a manager has been submitted to previous liquidation proceedings
closed due to an excess of liabilities over assets less than five years before the commencement of the one to which he is currently submitted;
4°. the proceedings have been commenced as territorial proceedings within the meaning of Article 3 (2) of Council Regulation (EC) No. 1346/2000 relative to insolvency proceedings.
IV -In addition, in the event of fraud affecting one or more creditors, the court shall allow the resumption of individual right of action by creditors against the debtor. The court shall decide at the time of the closing of the proceedings after having heard or duly summoned the debtor, the liquidator and the controllers. It may take its decision after the closing of the proceedings, on motion of any interested party, under the same conditions.
V -Creditors who recover their individual rights of action under this article may, if their claims have been admitted, obtain an enforcement order by a ruling of the president of the court or, if the claims have not been verified, ask for enforcement under the terms of general law.
Article L643-12 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 123, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The closing of the liquidation proceedings shall stay the effects of the prohibition to issue cheques, imposed on the debtor in compliance with Article L65-3 of the decree of 30 October 1935 unifying the law governing cheques and relating to payment cards, imposed on rejection of a cheque issued prior to the issuance of the commencement order.
If the creditors recover their individual rights of action, this prohibition will resume its effect beginning with the issuance of the enforcement order provided for in Article L643-11.
Article L643-13 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 124, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If the closing of the liquidation proceedings is pronounced due to an excess of liabilities over assets and it appears that assets have not been sold or that litigation in the interest of creditors has not been initiated during the proceedings,
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COMMERCIAL CODE the latter may be resumed.
The liquidator previously appointed, the Public prosecutor or any interested creditor may apply to the court. The court may also initiate a case of its own motion. If the action is filed by a creditor, he must show that he has deposited the funds necessary for the procedural expenses with the court clerk's office. This amount deposited for legal fees will be reimbursed as a priority claim out of sums recovered following the resumption of the proceedings.
If the assets of the debtor are composed of sum of money, the proceedings provided for in Chapter IV of this Title shall automatically apply.
Article L650-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 126, Article 163, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Creditors may not be held liable for harm in relation to credits granted, except in cases of fraud, indisputable interference in the management of the debtor or if the guarantees obtained for the loans or credits are disproportionate.
If the liability of a creditor is established, the guarantees obtained for the loans will be declared void.
CHAPTER I Liability for excess of liabilities over assets Articles L651-1 to
L651-4
Article L651-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 127, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of this chapter and those of Chapter II of this Title shall apply to the managers of private law entities submitted to insolvency proceedings as well as to individuals who serve as permanent representatives of managing legal entities.
N.B. It has not been possible to make the amendments provided in Article 163 of the Act No 2005-845 of 26 July 2005, the expression "of reorganization" not being present in Article L651-1.
Article L651-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 128, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the rescission of a safeguard or of a reorganization plan or the liquidation of a legal entity reveals an excess of liabilities over assets, the court may, in instances where management fault has contributed to the excess of liabilities over assets, decide that the debts of the legal entity will be borne, in whole or in part, by all or some of the de jure or de facto managers, who have contributed to the management fault. If there are several managers, the court may, by way of a reasoned ruling, declare them jointly and severally liable.
The right of action shall be barred after three years from the date of issuance of the order pronouncing the liquidation proceedings or the rescission of the plan.
Sums paid by the managers in compliance with the first paragraph shall form part of the debtor's assets. These sums shall be distributed to all creditors on a pro rata basis.
Article L651-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 129, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court nominee, the liquidator or the Public prosecutor may apply to the court in the case provided for in Article L651-2.
Where the court nominee entitled to bring them has not applied for the actions provided for in that article and has not answered to default notice delivered to him within the time limit and under conditions to be determined by a Conseil d'Etat decree, a majority of creditors appointed as controllers may also apply to the court in the collective interest of creditors.
The supervisory judge may not sit in judgement nor participate in consideration of the case provided for in the first paragraph.
Legal fees that the managers are ordered to pay shall be paid in priority out of the sums that are paid to make up for liabilities.
Article L651-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 130, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
For applying the provisions of Article L651-2, of his own motion or on motion of one of the persons referred to under Article L651-3, the president of the court may charge the supervisory judge or, failing this, one of the members of the court, to obtain, notwithstanding any statutory rule to the contrary, any document or information on the estate of the managers and the individuals who serve as permanent representatives of the managing legal entities provided for in Article L651-1, from the public authorities and bodies, provident institutions, social security bodies and credit institutions.
The president of the court may, under the same conditions, order any useful protective measure in relation to the assets of the managers or their representatives referred to under the preceding paragraph.
The provisions of this article shall also apply to members of or partners in the legal entity submitted to the safeguard, reorganization or liquidation proceedings, where they are jointly and severally liable for its debts.
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COMMERCIAL CODE CHAPTER II Liability for the debts of the company Articles L652-1 to
L652-5
Article L652-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 131, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the course of the liquidation proceedings, the court may decide that one of the de jure or de facto managers of the legal entity shall bear all or part of the latter's debts if it is proven against this manager that one of the faults referred below has contributed to the cessation of payments :
1°. selling property belonging to the legal entity as his own; 2°. carrying out company transactions to further his personal interests, using the legal entity as a cover for his
schemes; 3°. using property or credit of the legal entity, against that entity's interests, for personal purposes or in favour of
another legal entity or business in which he had a direct or indirect interest; 4°. abusively, for his personal interest, an unprofitable business activity that would necessarily lead to the legal
entity's insolvency; 5°. embezzling or concealing all or part of the assets of the legal entity or fraudulently increasing its debts. In the cases provided for in this article, the provisions of Article L651-2 shall not apply.
Article L652-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 131, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the presence of several liable managers, the court will take into account the fault of each manager in order to determine the portion of the debts of the company to be borne by each. It may declare them jointly and severally liable by a reasoned ruling.
Article L652-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 131, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Sums recovered shall be used to pay off creditors according to the order of their secured claims.
Article L652-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 131, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The right of action shall be barred after three years from the issuance of the order pronouncing the liquidation proceedings.
Article L652-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 131, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of Articles L651-3 and L651-4 shall apply to the right of action provided for in this chapter.
CHAPTER III Personal disqualification and other prohibitions Articles L653-1 to
L653-11
Article L653-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 132, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Where reorganization or liquidation proceedings are commenced, the provisions of this chapter shall apply to: 1°. natural persons who are traders, farmers, persons registered with the craftsmen's register, and to any other
natural person running an independent professional activity, including an independent professional person with a statutory or regulated status or whose designation is protected;
2°. natural persons who are de facto or de jure managers of legal entities; 3°. natural persons, who serve as permanent representatives of legal entities, managers of legal entities defined
under (2). These same provisions shall not apply to natural persons or managers of a legal entity running an independent
professional activity and, for that reason, subject to disciplinary rules. II -The rights of action provided for in this chapter shall be barred after three years from the issuance of the order
pronouncing the commencement of the proceedings provided for under (I).
Article L653-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 133, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Personal disqualification shall entail a prohibition from running, managing, administering or controlling, directly or indirectly, any commercial or craftsman's business, any agricultural activity or any business operating any other independent activity and any legal entity.
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COMMERCIAL CODE Article L653-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 134, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court may pronounce the personal disqualification of any person referred to under Article L653-1 (I) (1), subject to the exceptions provided for in the last paragraph of the same article, against whom any of the following facts has been proved:
1°. abusively operating an unprofitable business activity that would necessarily lead to cessation of payments; 2°. [abrogated]; 3°. embezzling or concealing all or part of his assets or fraudulently increasing his liabilities.
Article L653-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 135, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court may pronounce the personal disqualification of any de jure or de facto manager of a legal entity who has committed one of the faults referred to under Article L652-1.
Article L653-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 136, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
A court may pronounce the personal disqualification of any person provided for in Article L653-1 against whom any of the following facts has been proved:
1°. running a commercial, craftsman's or agricultural activity or holding a management or administrative position in a legal entity in violation of a prohibition provided for by law;
2°. purchasing goods for services for resale at below market prices or using ruinous means to procure funds, with the intention of avoiding or delaying the commencement of reorganization or liquidation proceedings.
3°. entering into, on behalf of another, without consideration, commitments deemed to be disproportionate when they were entered into, given the situation of the business or the legal entity;
4°. paying or causing someone else to pay a creditor, after cessation of payments and while being aware of this, to the prejudice of other creditors;
5°. hampering the good progress of the insolvency proceedings by voluntarily abstaining from co-operating with the persons (authorities) in charge of the proceedings;
6°. destroying accounting documents, not keeping accounts where applicable texts made this an obligation or keeping accounts that are fictitious, manifestly incomplete or irregular with respect to the applicable provisions.
Article L653-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court may pronounce the personal disqualification of the manager of a legal entity who has not paid the latter's debts put at his expense.
Article L653-7 The court nominee, the liquidator or the Public prosecutor may apply to the court in the cases provided for in
Articles L653-3 to L653-6 and L653-8. Where the court nominee entitled to bring them has not applied for the actions provided for in these articles and has
not answered to default notice delivered to him within the time limit and under conditions to be determined by a Conseil d'Etat decree, a majority of creditors appointed as controllers may also apply to the court in the collective interest of creditors at any time during the proceedings.
The supervisory judge may not sit in judgement nor participate in consideration of the same cases provided for in the first paragraph.
Article L653-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 138, Article 165, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the cases provided for under Articles L653-3 to L653-6, a court may pronounce, instead of personal disqualification, a prohibition from managing, running, administrating or controlling, directly or indirectly, any commercial or craftsman's business, any agricultural activity or any legal entity or one or more of these.
The prohibition provided for in the first paragraph may also be pronounced against any person provided for in Article L653-1 who, in bad faith, has not given to the court nominee, the administrator or the liquidator, information he is bound to disclose to them in compliance with Article L622-6 within the month following the date of issuance of the commencement order.
The same prohibition may also be pronounced against any person provided for in Article L653-1 who has omitted to file, within the time limit of forty-five days, a statement of cessation of payments, without having otherwise filed for the commencement of conciliation proceedings.
Article L653-9 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 165 II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The voting rights of managers under personal disqualification or under a prohibition provided for in Article L653-8
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COMMERCIAL CODE shall be exercised in the meetings of legal entities submitted to safeguard, reorganization or liquidation proceedings by a court nominee appointed by the court for this purpose on motion of the administrator, the liquidator or the plan performance supervisor.
The court may order these managers or some of them to sell shares or share capital in the capital of legal entities or order a forced sale through a court nominee, if necessary after an expert's report. The proceeds of the sale shall be used to pay the debts of the entity borne by the managers.
Article L653-10 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 139, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The court that pronounces the personal disqualification may pronounce the ineligibility to occupy a public office. The ineligibility shall last the period of the personal disqualification, without exceeding a five-year period. Where the decision becomes definitive, the Public prosecutor will inform the interested party of his ineligibility, which shall take effect on the date of notice.
Article L653-11 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 140, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where a court pronounces the personal disqualification or the prohibition provided for in Article L653-8, it will fix the duration for the prohibition, which may not exceed fifteen years. It may order the provisional enforcement of its decision. The loss of rights, prohibitions and ineligibility to occupy a public office shall automatically cease at the end of the fixed term, without any need for a court decision.
The final decree closing the proceedings on the grounds of extinguishment of liabilities shall, even after enforcement of the liability for the debts of the entity imposed on him by court, return all rights to the head of the business or managers of the legal entity. It shall exempt or relieve them from any loss of rights, prohibition and ineligibility to occupy a public office.
The head of the business or manager concerned may request the court to relieve him from, in whole or in part, any loss of rights, prohibition and ineligibility to occupy a public office if he has made a sufficient contribution to the payment of liabilities.
Where he is subject to the prohibition provided for in Article L653-8, he may be relieved of it if he presents guarantees showing his capacity to manage or control one or more businesses or legal entities provided for in that article.
Where a complete relief from any loss of rights, prohibition and ineligibility is pronounced, the court's decision will entail rehabilitation.
CHAPTER IV Criminal bankruptcy and other offences Articles L654-1 to
L654-20
SECTION I Criminal Bankruptcy Articles L654-1 to
L654-7
Article L654-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 141, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of this section shall apply to: 1°. traders, farmers, natural persons registered with the craftsmen's register and natural persons running an
independent professional activity, including an independent professional person with a statutory or regulated status or whose designation is protected;
2°. persons who, directly or indirectly, de jure or de facto, have managed or liquidated a private law entity; 3°. natural persons, who serve as permanent representatives of the managing legal entities referred to under (2)
above.
Article L654-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 142, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where reorganization or liquidation proceedings are commenced, any person referred to under Article L654-1 shall be guilty of criminal bankruptcy where any of the following offences is proved against them:
1°. purchasing for resale at below market prices or using ruinous means to obtain funds with the intention of avoiding or delaying the commencement of the reorganization proceedings;
2°. embezzling or concealing all or part of the debtor's assets; 3°. fraudulently increasing the debtor's liabilities; 4°. keeping fictitious accounts or destroying accounting documents belonging to the business or legal entity or
failing to keep any accounts where the applicable texts impose an obligation so to do; 5°. keeping accounts that are manifestly incomplete or irregular with regard to legal provisions.
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COMMERCIAL CODE Article L654-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 142 II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Criminal bankruptcy shall be punishable by five years' imprisonment and a fine of €75,000. The same penalties shall be incurred by the accomplices of the criminal bankrupt, even if they are not traders, farmers or craftsmen and do not manage a private law entity, directly or indirectly, de jure or de facto.
Article L654-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the culprit of or accomplice to criminal bankruptcy is a manager of a business that provides investment services, the penalties will be increased to seven years' imprisonment and a fine of €100, 000.
Article L654-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 142 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Natural persons found guilty of those offences provided for in Articles L654-3 and L654-4 shall also incur the following additional penalties:
1°. prohibition from exercising civic, civil and family rights, according to the terms and conditions set by Article 131-26 of the Penal Code;
2°. prohibition, for a maximum period of five years, from occupying a public office, from running the professional or corporate activity in the exercise of which, or while being exercised, the offence was committed unless a Civil or High court has already imposed such a sanction by a decision that has become final;
3°. ineligibility for public procurement contracts for a maximum period of five years; 4°. prohibition, for a maximum period of five years, from issuing cheques other than those allowing for the
withdrawal of funds by the drawer from the issuing bank or from issuing certified cheques; 5°. display or publication of the court order under the conditions provided for in Article 131-35 of the Penal Code.
Article L654-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 143, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The Criminal court that finds one of the persons referred to under Article L654-1 guilty of criminal bankruptcy may, in addition, pronounce the latter's personal disqualification or the prohibition provided for in Article L653-8 unless a Civil or High court has already imposed such a sanction by a decision that has become finaL
Article L654-7 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Legal entities may be declared guilty, according to the conditions provided for in Article 121-2 of the Penal Code, for those offences provided for in Articles L654-3 and L654-4.
II - The penalties to be incurred by legal entities shall be: 1°. a fine, under the terms and conditions provided for in Article 131-38 of the Penal Code; 2°. the penalties provided for in Article 131-39 of the Penal Code. III - The prohibition provided for in Article 131-39 (2) of the Penal Code shall relate to the activity in the exercise of
which or while being exercised the offence was committed.
SECTION II Other offences Articles L654-8 to
L654-15
Article L654-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 144, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Two years' imprisonment and a fine of €30, 000 shall apply to: 1°. any person referred to under Article L654-1 who, during the observation period, grants a mortgage or a pledge
or carries out an act of disposition without the permission provided for in the second paragraph of Article L622-7 or who pays, in whole or in part, a debt in breach of the prohibition referred to under the first paragraph of that article;
2°. any person referred to under Article L654-1 who makes a payment in breach of the terms and conditions for the payment of liabilities provided for in the safeguard plan or reorganization plan, who carries out an act of disposition without the permission provided for in the second paragraph of Article L626-14 or who sells an asset excluded from sale under the terms of an assignment plan, in compliance with Article L642-10.
3°. any person who, during the observation period or while the safeguard plan or reorganization plan is being implemented, while being aware of the debtor's situation, concludes with the latter one of the acts referred to at (1°) and (2°) or receives from him an irregular payment.
Article L654-9 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 145, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
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COMMERCIAL CODE The penalties provided for in Articles L654-3 to L654-5 shall apply to any person who: 1°. in the interest of the persons referred to under Article L654-1, removes, illegally holds or conceals all or part of
the movable and immovable property belonging to these persons, without prejudice to the application of Article 121-7 of the Penal Code;
2°. fraudulently submits alleged claims in safeguard, reorganization or liquidation proceedings, either in his name or by using an agent;
3°. while running a commercial, craftsman's or agricultural activity or any other independent activity, under someone else's name or using a false name, is convicted of one of the offences provided for in Article L654-14.
Article L654-10 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 146 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
A spouse, descendant, ancestor or collateral relatives or affines of the persons referred to under Article L654-1 who embezzles, conceals or illegally holds assets included in the insolvency estate of a debtor subject to safeguard or reorganization proceedings, shall incur the penalties provided for in Article 314-1 of the Penal Code.
Article L654-11 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 146 II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In those cases provided for in the preceding articles, the court hearing the case shall rule upon, even where the offender is acquitted:
1°. of its own motion, the return into the debtor's assets of all the property, rights and claims that have been fraudulently removed;
2°. the compensation which would be claimed.
Article L654-12 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 146 III, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - The penalties provided for under Article 314-2 of the Penal Code shall apply to any administrator, court nominee, liquidator or plan performance supervisor who:
1°. voluntarily harms the creditors' or the debtor's interests by either using the payments received while carrying out his duties for his own profit or by causing others to grant him benefits that he is aware that they are not due;
2°. makes use, in his own interest, of his powers for a purpose he knows to be contrary to the creditors' or the debtor's interests.
II - The same penalties shall apply to any administrator, court nominee, liquidator, plan performance supervisor or any other person, except the employees' representatives, who has taken part in the proceedings in any capacity whatsoever, who, directly or indirectly, acquires the debtor's assets for his own account or uses them for his own profit. The court hearing the case shall declare void the acquisition and rule upon the compensation that would be claimed.
Article L654-13 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 163, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
A creditor, who, after the issuance of the order commencing the safeguard, reorganization or liquidation proceedings, enters into an agreement giving rise to a special advantage to be borne by the debtor, shall be punishable by the penalties provided for in Article 314-1 of the Penal Code.
The court hearing the case shall declare void the agreement.
Article L654-14 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, II Article 163, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The penalties provided for in Articles L654-3 to L654-5 shall apply to those persons referred to under Article L654-1 (2°) and (3°) who, in bad faith and in order to remove all or part of their assets from being subject to actions initiated by the legal entity to which the commencement order of the safeguard, reorganization or liquidation proceedings applies, or from those actions initiated by the partners/shareholders or creditors of the legal entity, who embezzle or conceal, or attempt to embezzle or conceal, all or part of their assets, or who fraudulently cause others to regard them as debtors for sums of money that they do not owe.
Article L654-15 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, II Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Any one who runs a professional activity or holds a position in violation of any prohibition, loss of rights or incapacity provided for in Articles L653-2 and L653-8, shall be punished by two years' imprisonment and a fine of €375 000.
SECTION III Procedural Rules Articles L654-16 to
L654-20
Article L654-16
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COMMERCIAL CODE (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 146 IV, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
For the application of the provisions of Sections I and II of this chapter, the limitation period applicable to penal actions shall run from the date of issuance of the commencement order of safeguard, reorganization or liquidation proceedings where the incriminating facts have arisen before this date.
Article L654-17 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 146 V, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The case shall be filed with the Criminal court either by the action of the Public prosecutor or by an action for damages as a civil party initiated by the administrator, the court nominee, the employees' representative, the plan performance supervisor, the liquidator or a majority of creditors appointed as controllers acting in the collective interest of the creditors where the court nominee entitled to bring action has not done so after notice delivered to him within a time limit and under the conditions to be determined by a Conseil d'Etat decree.
Article L654-18 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The Public prosecutor may require the administrator or the liquidator to hand over all contracts and documents held by them.
Article L654-19 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The legal fees of the cases filed by the administrator, the court nominee, the employees' representative, the plan performance supervisor or the liquidator shall be borne by the Public Treasury in the event of acquittaL
In the event of conviction, the Public Treasury may bring an action for repayment against the debtor only after the closing of the liquidation proceedings.
Article L654-20 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Rulings and sentences of a first degree court and court of appeal judgments of conviction pronounced in compliance with this chapter shall be published at the expense of the convicted person.
TITLE VI General procedural provisions Articles L661-1 to
L663-4
CHAPTER I Means of redress Articles L661-1 to
L661-11
Article L661-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 147, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Appeal or appeal in cassation may be filed against: 1° decisions ruling upon the commencement of safeguard, reorganization and liquidation proceedings by the debtor,
the petitioning creditor as well as the Public prosecutor even if he did not act as the principal party; 2° - decisions ruling upon the liquidation proceedings, confirming or rejecting the safeguard plan or the
reorganization plan by the debtor, the administrator, the court nominee, the works council or, in the absence of a works council, the employee delegates as well as by the Public prosecutor even if he did not act as the principal party;
3- decisions modifying the safeguard plan or the reorganization plan by the debtor, the plan performance supervisor, the works council or, in the absence of a works council, by the employee delegates as well as the Public Persecutor even if he did not act as the principal party.
II - The appeal by the Public prosecutor has a suspensive effect, except with respect to decisions ruling upon the commencement of safeguard or reorganization proceedings.
III - In the absence of a works council or of an employee delegate, the employees' representative shall exercise the means of redress given to these institutions by this article.
Article L661-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 148 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The decisions ruling upon the commencement of proceedings shall be subject to third-party proceedings. The judgement ruling upon third-party proceedings shall be subject to appeal and appeal in cassation by the third party.
Article L661-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 148 II, Official Journal of 27 July 2005, in force on 1
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COMMERCIAL CODE January 2006 subject to Article 190)
The decisions confirming or modifying the safeguard plan or the reorganization plan shall be subject to third-party proceedings.
The judgement ruling upon third-party proceedings shall be subject to appeal and appeal in cassation by the third party.
Article L661-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 149, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The orders relating to the appointment or the replacement of the supervisory judge shall not be subject to any redress.
Article L661-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 150, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Only the Public prosecutor may bring an appeal and appeal in cassation against judgements ruling upon petitions for redress of orders of the supervisory judge given in compliance with Articles L642-18 and L642-19.
Article L661-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 151, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Only the Public prosecutor may appeal even if he did not act as the principal party against: 1°- orders relating to the appointment or the replacement of the administrator, the court nominee, the liquidator, the
controllers, or the expert(s); 2° - orders upon the duration of the observation period, the continuation or cessation of activity. II - Only the debtor, the Public prosecutor even if he did not act as the principal party, the assignee or the
contracting party referred to under Article L642-7 may appeal against orders which confirm or reject the assignment plan of the business. The assignee may appeal against the order confirming the assignment plan only if it imposes obligations on him other than the commitments that he has accepted during the preparation of the plan. The contracting party referred to under Article L642-7 may appeal only against the section of the order which relates to the assignment of the contract.
III - Only the Public prosecutor even if he did not act as the principal party or the assignee within the limits referred to under the preceding paragraph, may appeal against orders modifying the assignment plan.
IV - The appeal by the Public prosecutor shall have a suspensive effect.
Article L661-7 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Third-party proceedings or appeal to the court of cassation may not be initiated against court of appeal judgements delivered in compliance with Article L661-6 (I).
Only the Public prosecutor may file an appeal in cassation against court of appeal judgements delivered in compliance with Article L661-6 (II) and (III).
Article L661-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 163, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Where the Public prosecutor must be kept informed about safeguard, reorganization or liquidation proceedings and the grounds for the corporate managers' liability, the appeal in cassation for absence of information shall be available to him only.
Article L661-9 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 152, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the event of invalidation of the ruling that gives rise to the transfer of the case to the first-degree court, the court of appeal may begin a new observation period. This period shall not exceed three months.
In the event of an appeal against the order ruling on judicial liquidation during the observation period or confirming or rejecting the safeguard or reorganization plan and when the provisional enforcement is halted, the observation period will be prolonged until the court of appeal judgement.
Article L661-10 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
For the application of this Title, the members of the works council or the employee delegates shall appoint the person entitled to exercise the means of redress on their behalf from amongst their number.
Article L661-11 (inserted by Act No 2005-845 of 26 July 2005, Article 1, Article 153, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The decisions delivered in compliance with Chapters I, II and III of Title V shall be subject to appeal by the Public
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COMMERCIAL CODE prosecutor, even if he did not act as the principal party.
The appeal of the Public prosecutor shall have a suspensive effect.
CHAPTER II Other provisions Articles L662-1 to
L662-6
Article L662-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
No opposition or proceedings for enforcement of any nature concerning the sums paid into the Caisse des dépôts et consignations shall be admissible.
Article L662-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 154, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
When the interests involved justify it, the court of appeal may decide to refer the case to another court of comparable degree that has jurisdiction within the territorial jurisdiction of the court of appeal, to hear safeguard, reorganization or liquidation proceedings, under the conditions to be fixed by a decree. The court of Cassation, to which the case is referred in the same manner, may refer the case to a court within the territorial jurisdiction of another court of appeaL
Article L662-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 156, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Hearings before the Tribunal de commerce (High court) and the Tribunal de grande instance (High court) shall take place in the judge's chambers. However, the hearings will ipso jure be public after the commencement of the proceedings if the debtor, the court nominee, the administrator, the liquidator, the employees' representative or the Public prosecutor requests it. The president of the Court may decide that they will take place or will continue in the judge's chambers if disturbances occur that undermine the peaceful progress of the hearing.
Notwithstanding the provisions of the first paragraph, the hearings relating to the steps taken in compliance with Chapters I, II and III of Title V shall take place in public. The president of the court may decide that they will take place in the judge's chambers if the debtor requests it before the commencement of the hearing.
Article L662-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 157, Article 165 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
Any dismissal of the employees' representative referred to under Articles L621-4 and L641-1, planned by the administrator, the employer or the liquidator, as the case may be, shall obligatorily be presented to the works council, which shall give its opinion on the planned dismissaL
The dismissal may occur only after the permission of the Inspector of Labour who supervises the establishment. When there is no works council in the establishment, the case will be referred directly to the Inspector of Labour.
However, in the event of serious misconduct, the administrator, the employer or the liquidator, as the case may be, may pronounce the immediate suspension of the interested party while awaiting the final decision. If the dismissal is refused, the suspension will be cancelled and its effects will automatically be removed.
The protection instituted in favour of the employees' representative for the exercise of his duties defined by Article L625-2 will cease when all sums paid to the court nominee by the institutions referred to under Article L143-11-4 of the Labour Code, in compliance with the tenth paragraph of Article L143-11-7 of the aforesaid code, are transferred by the court nominee to the employees.
Where the employees' representative discharges his duties in the stead of a works council or, as the case may be, of employee delegates, the protection will cease at the end of the last hearing or consultation planned by the reorganization proceedings.
Article L662-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The funds held by the "syndics" (administrator/liquidator) in a settlement or liquidation of assets governed by Act No 67-563 of 13 July 1967 on settlement or liquidation of assets proceedings, personal disqualification and criminal bankruptcies shall immediately be placed on a deposit account with the Caisse des dépôts et consignations. If the deposits are delayed, the "syndic" (administrator) must pay interest on the unpaid sums at the legal rate of interest plus five percent.
Article L662-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 159, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The clerk's office of the Tribunal de commerce (Commercial court) and that of the Tribunal de grande instance (High court) shall draw up at the end of every six-month period the list of court-appointed administrators and court nominees appointed by the court and the other people to whom a commission related to the proceedings governed by this Book is
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COMMERCIAL CODE given by the aforementioned court, for this period. They shall state, with respect to each interested party, all the cases allotted to him and information relating to the debtors in question provided for by a Conseil d'Etat decree. They shall state in an annexe the amount of its sales turnover, during the previous six-month period, resulting from the exercise of the commissions entrusted to him by the court.
This information shall be disclosed to the Keeper of the Seals, Minister of Justice, to the Public prosecutor of the territorial jurisdiction concerned and to the authorities responsible for the control and the inspection of the administrator and the court nominees, according to the terms and conditions determined by a Conseil d'Etat decree.
CHAPTER III Legal fees of proceedings Articles L663-1 to
L663-4
Article L663-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 158 I, Article 163 Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
I - Where the debtor's available funds are not immediately sufficient, the Public Treasury, upon a reasoned ruling of the supervisory judge or that of the president of the Court, will advance funds to pay fees, taxes, royalties or emoluments due to by the court clerk, fixed disbursements and emoluments due to the solicitors before appeal courts (avoués) and remunerations of attorney-at-law insofar as they are regulated, expenses incurred for serving notice and publication formalities and payment of the experts appointed by the court, after the agreement of the Public prosecutor, related to:
1. the decisions pronounced in the course of safeguard, reorganization or liquidation proceedings delivered in the collective interest of the creditors or that of the debtor;
2. the exercise of actions intended to preserve or reconstitute the debtor's estate or exercised in the collective interest of the creditors; and
3. the exercise of actions provided for in Articles L653-3 to L653-6. The agreement of the Public prosecutor shall not be necessary for the advance payment of the remuneration of the
public officials appointed by the court in compliance with Article L621-4, to carry out the inventory provided for under Article L622-6 and the valuation provided for under Article L641-4.
II - The Public Treasury shall also, upon a reasoned order of the president of the Court, advance funds to pay the same expenses connected with an action for rescission and modification of the plan.
III - These provisions shall apply to appeals and appeals in cassation procedures against all the decisions referred to above.
IV - For the refunding of its advances, the Public Treasury shall be secured by the lien applicable to legal fees.
Article L663-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 158 II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
A Conseil d'Etat decree shall specify the conditions of remuneration of administrators, court nominees, plan performance supervisors and liquidators. This remuneration shall preclude any other remuneration or reimbursement of legal fees for the same proceedings or for subsequent duties that would be a continuation of the same proceedings.
Article L663-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 158 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
If the proceeds of the sale of the business's assets do not allow the liquidator or the court nominee to obtain, as remuneration due to him pursuant to the provisions of Article L663-2, a sum at least equal to a threshold fixed by a Conseil d'Etat decree, the case will be declared impecunious by court order, on proposal of the supervisory judge and based on the supporting documents presented by the liquidator or the court nominee.
The same decision shall determine the sum corresponding to the difference between the remuneration actually received by the liquidator or the court nominee and the threshold specified in the first paragraph.
The sum paid to the court nominee or to the liquidator shall be deducted from a portion of the interest paid by the Caisse des dépôts et consignations on the funds deposited pursuant to Articles L622-18, L626-25 and L641-8. This portion shall be specially assigned to a fund managed by the Caisse des dépôts et consignations under the control of an administration committee. The conditions for application of this paragraph shall be fixed by a Conseil d'Etat decree.
Article L663-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The supervisory judge shall have his travelling expenses reimbursed from the debtor's assets.
TITLE VII Provisions specific to the departments of Moselle, Bas-Rhin and Haut-Rhin Articles L670-1 to
L670-8
Article L670-1 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 160 I, Official Journal of 27 July 2005, in force on 1
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COMMERCIAL CODE January 2006 subject to Article 190)
The provisions of this Title are applicable to natural persons, domiciled in the départements of Moselle, Bas-Rhin and Haut-Rhin, and to their estate on death, who are neither traders, nor persons registered with the craftsmen's register, nor farmers, nor persons running any other independent profession, including independent professional persons with a statutory or regulated status, if they are in good faith and in a state of evident and known insolvency. The provisions of Titles II to VI of this Book shall apply insofar as they are not contrary to the provisions of this Title.
Prior to issuing the order on the commencement of proceedings, the court shall appoint, if it considers it useful, a qualified person selected from the list of the approved organizations, to collect all information on the debtor's economic and employment situation.
The losses of rights and prohibitions resulting from personal disqualification shall not be applicable to these persons.
The conditions for the application of this article shall be specified by a decree.
Article L670-2 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 160 II, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The supervisory judge may order exemption from carrying out an inventory of the assets of the persons referred to under Article L670-1.
Article L670-3 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 160 III, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In the event of liquidation proceedings, the verification of claims shall not be carried out if it appears that the proceeds of the sale of the assets will entirely be absorbed by the legal fees, unless otherwise decided by the supervisory judge.
Article L670-4 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
On issuance of the final decree closing operations of the liquidation proceedings, the Court may, exceptionally, require the debtor to contribute to settlement of the liabilities in the proportions that it shall determine. The court shall appoint in this order a statutory auditor to supervise the performance of the contribution.
To fix the proportions of the contribution, the court will take into account the debtor's means, to be determined by taking into consideration the debtor's irreducible revenue and obligations. The court shall reduce the amount of the contribution in the event of a decrease of the revenue or increase of the obligations of the contributor.
His payment must be made within a time limit of two years. The conditions for the application of this Article shall be specified by a decree.
Article L670-5 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Article 160 IV, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
In addition to the cases provided for in Article L643-11, the creditors will also recover their right to initiate individual proceedings against the debtor where the court ascertains, of its own motion or on motion by the supervisor, the non-performance of the contribution provided for in Article L670-4.
Article L670-6 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The order pronouncing the liquidation proceedings shall be recorded for a period of eight years in the records provided for in Article L333-4 of the Consumer Code and shall no longer be mentioned in the interested party's criminal record.
Article L670-7 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The tax base and assessment of the tax on legal fees for reorganization or liquidation proceedings shall temporarily be settled in accordance with the provisions of local laws.
Article L670-8 (inserted by Act No 2005-845 of 26 July 2005, Article 1 I, Official Journal of 27 July 2005, in force on 1 January 2006 subject to Article 190)
The provisions of Article 1 of Act No 75-1256 of 27 December 1975 on certain sales of immovable property in the départements of Haut-Rhin, Bas-Rhin and Moselle shall cease to be applicable to forced sales of immovable properties which are included in the estate of a debtor submitted to reorganization proceedings commenced after 1 January 1986.
BOOK VII Organisation of commerce Articles L711-1 to
L740-3
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COMMERCIAL CODE TITLE I Chambers of commerce and industry Articles L711-1 to
L713-18
CHAPTER I Organisation and powers Articles L711-1 to
L711-10
Article L711-1 Chambers of commerce and industry are agencies which work closely with the public authorities to serve
commercial and industrial interests in their district. They are public economic establishments.
Article L711-2 Chambers of commerce and industry are responsible for: 1. Giving the government the opinions and information requested from them on industrial and commercial matters. 2. Presenting their views on how to increase the prosperity of industry and commerce. 3. Ensuring, subject to the authorisation for which provision is made in Articles L. 711-6 and L. 711-8, that the
works and the administration of the services necessary to the interests for which they are responsible are carried out.
Article L711-3 The opinion of chambers of commerce shall be requested on: 1. Regulations relating to commercial practice. 2. The creation of new chambers of commerce and industry, marine brokers, tribunaux de commerce, conseils de
prud'hommes, bonded warehouses and auction rooms for new and wholesale merchandise in their district 3. Taxes to remunerate transport services franchised by the public authorities in their district. 4. Any matters regulated by law or special regulations, especially the advisability of public works to be carried out in
their district and the taxes and tolls to be levied in order to meet the cost of such works. 5. Labour tariffs for work in prisons.
Article L711-4 In addition to opinions which the government is always entitled to ask of them, chambers of commerce and industry
may issue opinions at their own initiative on: 1. Planned changes to commercial, customs and economic legislation. 2. Customs tariffs. 3. Tariffs and regulations for transport services franchised by the public authorities outside their jurisdiction but
affecting their district. 4. Tariffs and regulations for commercial establishments opened in their district under an administrative permit.
Article L711-5 Articles L. 121-4 to L. 121-6 of the Town Planning Code reproduced below define the powers of chambers of
commerce and industry to establish master plans for locating commercial and artisan installations. "Article L. 121-4. – Once professional bodies have been consulted, chambers of commerce and industry and the
trade chambers shall be involved, if they so request, in establishing master plans. The reports attached to master plans shall stipulate the projected size of and location for preferred zones for
locating various commercial and artisan installations. Article L. 121-5. – The economic studies needed in order to prepare documents on the planned commercial and
artisan infrastructure may be carried out at the initiative of chambers of commerce and industry and trade chambers. "Article L. 121-6. – Chambers of commerce and industry and trade chambers shall be involved, if they so request, in
drawing up land use plans for commercial and artisan installations and shall be responsible for links with the professional associations affected."
Article L711-6 Chambers of commerce and industry may be authorised to found and administer establishments for commercial use
such as bonded warehouses, auction rooms, depots, weapon testing grounds, packaging and titration offices, permanent exhibitions and commercial museums, business schools, vocational schools and courses in commercial and industrial subjects.
The administration of such establishments founded by private initiative may be handed over to chambers of commerce and industry at the request of the subscribers or donors.
The administration of similar establishments created by the state, the department or the municipality may be delegated to them for similar establishments created by the state, the department or the municipality.
The authorisation referred to in this Article shall be granted to chambers of commerce and industry by decision of the minister in charge of their administrative supervision unless the nature of the establishment is such that a decree or law is needed.
Regulations and maximum tariffs shall be approved by the minister subject to the same reservation. The actual taxes and prices payable shall be approved by the prefect, unless the deed of institution requires a ministerial decision.
Chambers of commerce and industry may acquire or construct buildings for their own premises or premises for
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COMMERCIAL CODE commercial establishments subject to ministerial authorisation.
Article L711-7 Chambers of commerce and industry and trade chambers may create training funds for traders and artisans as
defined in and for the purposes of Article L. 961-10 of the Employment Code, in liaison with professional associations.
Article L711-8 Chambers of commerce and industry may be appointed as franchisees of public works or to take charge of public
services.
Article L711-9 Chambers of commerce and industry or trade chambers may act as town planning project managers in agreement
with the local authority or the project agency in order to install any form of new commercial and artisan installation in the economic and social interest, for the benefit of traders and artisans and to help them set up, convert or relocate their business.
More importantly, they may help traders and artisans acquire ownership [illegible] premises without any initial capital contribution.
They may also be delegated a pre-emptive town planning right or hold or be delegated the pre-emptive right established in deferred planning zones in order to set up any form of commercial and artisan installation.
Loans contracted by chambers of commerce and industry and trade chambers in order to carry out the operations referred to above may be guaranteed by the local authority. Chambers of commerce and industry, trade chambers and their permanent assemblies may contract loans from the Consignments office and the local authority facility aid fund.
Article L711-10 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The chambers of commerce and industry are reorganised as regional chambers of commerce and industry. Without prejudice to the right, which the chambers of commerce and industry retain, to form groups in order to defend special interests which some of them have in common, the regional chambers of commerce and industry constitute the consultative bodies for the regional interests of commerce and industry in their dealings with the public authorities.
The regional chambers of commerce and industry are public institutions with legal personality. The regrouping of the chambers of commerce and industry into regional chambers of commerce and industry, and
the remits, organisation and administrative and financial workings of those regional chambers of commerce and industry are determined in a Conseil d'Etat decree.
CHAPTER II Financial administration Articles L712-1 to
L712-3
Article L712-1 The ordinary expenses of chambers of commerce and industry shall be covered by a tax in addition to the business
tax.
Article L712-2 Chambers of commerce and industry may allocate all or some of their surplus revenue from the management of
their ordinary services to a reserve fund for emergency or contingent expenses. The amount contained in this fund, which must be reported in the services accounts and budget, shall not under any circumstances exceed half the total annual resources of the said budget.
Article L712-3 The chambers of commerce and industry referred to in Article L. 711-1, the regional chambers of commerce and
industry, cross-trade groups and the assembly of the French chambers of commerce and industry shall appoint at least one auditor and one deputy from the list referred to in Article L. 225-219, who shall perform their duties in accordance with the terms of Book II, subject to the regulations applicable to them.
The provisions of Article L. 242-27 shall apply to them. The sanctions for which provision is made in Article L. 242-8 shall apply to directors who fail to draw up a balance
sheet, income statement and notes to the accounts every year. The provisions of Articles L. 242-25 and L. 242-28 shall likewise apply to them.
CHAPTER III Election of members of the chambers of commerce and industry and trade
representatives Articles L713-1 to L713-18
Article L713-1 (Order No. 2003-1067 of 12 November 2003 Art. 1 Official Journal of 13 November 2003 effective 1 January 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 I Official Journal of 17 April 2004)
I. - The members of the chambers of commerce and industry are elected for five years. A member of a chamber of commerce and industry or of a regional chamber of commerce and industry shall not
serve as chairman of that chamber for more than three terms of office, regardless of their effective duration; (1) II. - The following participate in the election of members of the chambers of commerce and industry:
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COMMERCIAL CODE 1. Personally: a) Traders entered in the register of companies in the constituency of the chamber of commerce and industry,
without prejudice, for members who are partners in a partnership or a partnerships limited by shares, to the provisions of III of Article L. 713-2;
b) Company directors registered in the trade register and the register of companies in the constituency; c) The spouses of the persons indicated in a) or b) above who have declared, in the register of companies, that they
are actively engaged in their spouse's business and have no other gainful employment; 2. Through a representative: a) Companies of a commercial nature within the meaning of Article L. 210-1, and public institutions of an industrial
and commercial nature whose registered office is situated in the constituency; b) (by virtue of an establishment which is the subject of an additional entry or a secondary registration in the
constituency, unless exempted therefrom by the applicable laws and regulations) The natural persons referred to in a) and b) of 1 and the legal entities referred to in a) of the present 2, regardless of the constituency in which those persons exercise their own voting rights;
c) Companies of a commercial nature whose registered office is situated outside France and which have an establishment in the constituency which is entered in the register of companies.
NB (1): These provisions shall apply only to terms of office commencing after the elections organised in 2004.
Article L713-2 (Order No. 2003-1067 of 12 November 2003 Art. 2 Official Journal of 13 November 2003 effective 1 January 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 I Official Journal of 17 April 2004)
I. - By virtue of their registered office and all their establishments situated in the constituency of the chamber of commerce and industry, the natural persons or legal entities referred to in 1 and 2 of II of Article L. 713-1 have:
1. One additional representative, when they employ between ten and forty-nine employees in the constituency of the chamber of commerce and industry;
2. Two additional representatives, when they employ between fifty and one hundred and ninety-nine employees in the constituency;
3. Three additional representatives, when they employ between two hundred and four hundred and ninety-nine employees in the constituency;
4. Four additional representatives, when they employ between five hundred and one thousand nine hundred and ninety-nine employees in the constituency;
5. Five additional representatives, when they employ two thousand or more employees in the constituency. II. - However, natural persons indicated in a) and b) of 1 of II of Article L. 713-1 whose spouse benefits from the
provisions of c) of 1 of II of that same article shall not designate any additional representative if they employ fewer than fifty employees in the constituency of the chamber of commerce and industry.
III. - Partnerships and partnerships limited by shares designate a single representative for the members and the company by express deliberation, pursuant to the provisions of their articles of association, without prejudice to the possibility of designating additional representatives pursuant to I above.
Article L713-3 (Order No. 2003-1067 of 12 November 2003 Art. 3 Official Journal of 13 November 2003 effective 1 January 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 I, Art. 15 Official Journal of 17 April 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 IV Official Journal of 10 December 2004)
I. - The representatives referred to in Articles L. 713-1 and L. 713-2 must perform the functions of chairman and managing director, chairman or member of the board of directors, chief executive, chairman or member of the executive board, chairman of the supervisory board, chief executive, chairman or member of the board of directors, or director of a public institution of an industrial and commercial nature, or, failing this, and in order to represent them as their proxy, functions which involve commercial, technical or administrative management responsibilities in the company or institution.
II. - Those voting personally referred to in 1 of II of Article L. 713-1 and the representatives of the natural persons or legal entities referred to in 2 of II of that same article must be citizens of a European Community member state or a European Economic Area member state.
They must, moreover, in order to vote: 1. Meet the conditions stipulated in Article L. 2 of the electoral laws, with the exception of nationality; 2. Not come under the prohibition referred to in Article L. 6 of the electoral laws; 2. bis Not have been declared personally bankrupt or made subject to a prohibition or forfeiture order as provided
for in Chapter V of Part II of Book VI of the present code, Part VI of Act No. 85-98 of 25 January 1985 relating to the judicial receivership or liquidation of companies or, under the scheme which preceded that law, Part II of Act No. 67-563 of 13 July 1967 relating to judicial settlement, judicial liquidation, personal bankruptcy and other forms of bankruptcy, a prohibition order described in Article L. 625-8 of the present code or a prohibition on conducting commercial business;
3. Not have had sentences, forfeitures or sanctions imposed on them under legislations in force in European Community member states or European Economic Area member states equivalent to those referred to in 2 and 2 bis.
Article L713-4 (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 I II Official Journal of 17 April 2004)
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COMMERCIAL CODE (Act No. 2004-1343 of 9 December 2004 Art. 78 IV Official Journal of 10 December 2004)
I. - The following may become members of a chamber of commerce and industry, subject to being aged over eighteen years and meeting the conditions stipulated in II of Article L. 713-3:
1. The personal electors referred to in 1 of II of Article L. 713-1 who are entered in the electoral register of the relevant constituency and able to show that they have had an entry in the register of companies for at least two years;
2. The electors registered as representatives, referred to in 2 of II of Article L. 713-1 and Article L. 713-2, who are entered in the electoral register of the constituency and can show that the company that they represent has been conducting its business for at least two years.
II. - Any member of a chamber of commerce and industry who no longer meets the conditions of eligibility laid down in I above shall tender his resignation to the Prefect. Failing this, the Prefect shall automatically declare that member's resignation.
A break in trading of less than six months' duration does not entail resignation, however, save for the cases referred to in 2, 2 bis and 3 of II of Article L. 713-3.
Article L713-5 (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 I II Official Journal of 17 April 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 IV Official Journal of 10 December 2004)
I. - In the event of a chamber of commerce and industry being dissolved, it shall be renewed within six months. If such dissolution is pronounced less than one year before a general renewal, however, no renewal shall take
place. II. - When the number of members of a chamber of commerce and industry falls below one half of the initial number,
the Prefect records that fact in a decree and organises new elections for all the seats within six months. If that situation is recorded less than one year before a general renewal, however, no such renewal takes place. III. - The members elected pursuant to the present article shall remain in post for the unexpired portion of the initial
holder's term of office.
Article L713-6 (Order No. 2003-1067 of 12 November 2003 Art. 4 Official Journal of 13 November 2003 effective 1 January 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II III, Art. 3 Official Journal of 17 April 2004)
Consular delegates are elected for five years in the constituency of each chamber of commerce and industry. No consular delegate is elected, however, in a constituency or part of a constituency situated within the jurisdiction
of a court competent to hear commercial cases which does not have any elected judges.
Article L713-7 (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II III, Art. 3 Official Journal of 17 April 2004)
The following participate in the election of consular delegates: 1. Personally: a) Traders entered in the register of companies in the constituency of the chamber of commerce and industry,
without prejudice, for members who are partners in a partnership or a partnerships limited by shares, to the provisions of III of Article L. 713-2;
b) Company directors registered in the trade register and the register of companies in the constituency; c) The spouses of the persons indicated in a) or b) above who have declared, in the register of companies, that they
are actively engaged in their spouse's business and have no other gainful employment; d) Master mariners or merchant marine captains in command of a vessel registered in France whose port of registry
is situated in the constituency, inshore pilots working in a port situated in the constituency, aviation pilots domiciled in the district who command an aircraft registered in France;
e) Sitting members of the commercial courts, and former members of such courts having requested an entry in the electoral register;
2. Through a representative: a) Companies of a commercial nature within the meaning of Article L. 210-1, and public institutions of an industrial
and commercial nature whose registered office is situated in the constituency; b) (by virtue of an establishment which is the subject of an additional entry or a secondary registration in the
constituency, unless exempted therefrom by the applicable laws and regulations) The natural persons referred to in a) and b) of 1 and the legal entities referred to in a) of the present 2, regardless of the constituency in which those persons exercise their own voting rights;
c) Companies of a commercial nature whose registered office is situated outside France and which have an establishment in the constituency which is entered in the register of companies.
3. Executives who, being employed in the constituency by electors referred to in 1 or 2, perform functions which involve commercial, technical or administrative management responsibilities in the company or institution.
Article L713-8 (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II III, Art. 4 Official Journal of 17 April 2004)
The representatives referred to in 2 of Article L. 713-7 must perform the functions of chairman and managing
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COMMERCIAL CODE director, chairman or member of the board of directors, chief executive, chairman or member of the executive board, or chairman of the supervisory board of a company, or chief executive, chairman or member of the board of directors, or administrator of a public institution of an industrial and commercial nature, or, failing this, and in order to represent them as their proxy, functions which involve commercial, technical or administrative management responsibilities in the company or institution.
Article L713-9 (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II, III, Art. 4 Official Journal of 17 April 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 XIX Official Journal of 10 December 2004)
Those voting personally and the executives referred to in 1 and 3 of Article L. 713-7 and the representatives of the natural persons or legal entities referred to in 2 of that same article must be citizens of a European Community member state or a European Economic Area member state.
They must, moreover: 1. Meet the conditions stipulated in Article L. 2 of the electoral laws without prejudice to the provisions of the first
paragraph above; 2. Not have been the perpetrator of facts having given rise to a criminal conviction for dishonourable conduct, lack
of integrity or an offence against public decency; 2. bis Not have been declared personally bankrupt or made subject to one of the prohibition or forfeiture measures
provided for in Chapter V of Part II of Book VI of the present code, Part VI of Act No. 85-98 of 25 January 1985 relating to judicial receivership and liquidation of companies or, under the scheme which preceded that law, Part II of Act No. 67-563 of 13 July 1967 relating to judicial settlement, judicial liquidation, personal bankruptcy and other forms of bankruptcy, a prohibition order described in Article L. 625-8 of the present code or a prohibition on conducting commercial business;
3. Not have had sentences, forfeitures or sanctions imposed on them under legislations in force in European Community member states or European Economic Area member states equivalent to those referred to in 2 and 2 bis.
Article L713-10 (Order No. 2003-1067 of 12 November 2003 Art. 5 Official Journal of 13 November 2003 effective 1 January 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II III, Art. 5 Official Journal of 17 April 2004)
Persons belonging to the college of electors as defined in Article L. 713-7 are eligible for the functions of consular delegate.
Article L713-11 (Order No. 2003-1067 of 12 November 2003 Art. 6 Official Journal of 13 November 2003 effective 1 January 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II IV Official Journal of 17 April 2004)
The electors of consular delegates and of members of the chambers of commerce and industry are distributed in each administrative constituency between three professional categories corresponding respectively to the commercial, industrial and service sectors.
Within those three categories, the electors may be distributed into professional sub-categories defined on the basis of either the size of the company or its specific activities.
Article L713-12 (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II IV Official Journal of 17 April 2004)
The number of consular-delegate seats, which shall not be below sixty or above six hundred, is determined in relation to the size of the constituency's consular electoral body, the number of elected members of the chamber of commerce and industry and the number of commercial courts in that chamber's constituency.
The number of seats of a chamber of commerce and industry is twenty-four to fifty for chambers of commerce and industry having a constituency of fewer than 30,000 electors, thirty-eight to seventy for those having a constituency of 30,000 to 100,000 electors and sixty-four to one hundred for those having a constituency of more than 100,000 electors.
Article L713-13 (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II IV Official Journal of 17 April 2004)
The distribution of the seats between professional categories and sub-categories is made in proportion to the tax bases of the companies, the number of companies and the number of staff they employ.
No professional category may have representation above half the number of seats.
Article L713-14 (Order No. 2003-1067 of 12 November 2003 Art. 7 Official Journal of 13 November 2003 effective 1 January 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II IV Official Journal of 17 April 2004)
The electoral lists for the commercial court's jurisdictional area are drawn up by a committee chaired by the judge responsible for supervision of the register of companies and are subject to the conditions of the first paragraph of Article L. 25 and Articles L. 27, L. 34 and L. 35 of the electoral laws.
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COMMERCIAL CODE Article L713-15 (Order No. 2003-1067 of 12 November 2003 Art. 8 Official Journal of 13 November 2003 effective 1 January 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II Official Journal of 17 April 2004) (Order No. 2004-328 of 15 April 2004 Art. 2 II IV, Art. 6 Official Journal of 17 April 2004)
In elections of members of the chambers of commerce and industry, each elector has as many votes as he has elector entitlements pursuant to Article L. 713-1.
In elections of consular delegates, each elector has only one vote. The right to vote in elections of members of the chambers of commerce and industry and elections of consular
delegates is exercised by correspondence or by e-voting. In the event of an elector using both voting methods for the same entitlement, only the e-vote shall be deemed to be valid.
Article L713-16 (inserted by Order No. 2004-328 of 15 April 2004 Art. 2 II IV Official Journal of 17 April 2004)
Consular delegates and members of the chambers of commerce and industry are elected via a single-ballot uninominal election. If several candidates obtain the same number of votes, the oldest is declared the winner.
Article L713-17 (inserted by Order No. 2004-328 of 15 April 2004 Art. 2 II IV, Art. 7 Official Journal of 17 April 2004)
The procedures for electing consular delegates and members of the chambers of commerce and industry are organised on the same day by the administrative authority and, under its supervision, by the chambers of commerce and industry. They are subject to the provisions of Articles L. 49, L. 50 and L. 58 to L. 67 of the electoral laws. Violation of the said provisions shall incur the penalties referred to in Articles L. 86 to L. 117-1 of that same code.
A committee chaired by the Prefect or his representative is responsible for ensuring the lawfulness of the ballot and for announcing the results.
Appeals against elections for consular delegates and members of the chambers of commerce and industry are brought before the administrative court in the same way as for municipal elections.
Article L713-18 (inserted by Order No. 2004-328 of 15 April 2004 Art. 2 II IV Official Journal of 17 April 2004)
A Conseil d'Etat decree determines the implementing provisions for Articles L. 713-1 to L. 713-14. Inter alia, the said decree determines how the seats of consular delegates and members of a chamber of commerce and industry are distributed between the professional categories and sub-categories.
TITLE II Commercial amenities Articles L720-1 to
L720-11
Article L720-1 (Act No. 2004-804 of 9 August 2004 Art. 18 I Official Journal of 11 August 2004)
New business ventures, expansion, relocation of existing businesses and business sector changes by commercial and handicraft companies must be compatible with the requirements of regional development and environmental protection, as well as town planning matters. In particular, they must help to sustain business in rural and mountainous zones and restore the balance in built-up areas by developing trade in town centres and in urban regeneration zones.
They must also contribute to the modernisation of the commercial amenities, the adaptation and development of consumption patterns and marketing techniques, the enhancement of the consumer's buying experience and an improvement in the employees' working conditions.
The national programme for development and modernisation of commercial and handicraft activities referred to in Article 1 of Act No. 73-1193 of 27 December 1973 on commerce and the craft industries sets out the guiding principles for the commercial amenities required to implement the objectives defined above.
Article L720-2 The authorities shall facilitate groupings of commercial and artisan undertakings and new common services which
allow them to enhance their productivity and competitiveness and, possibly, to provide their customers with additional services.
Article L720-3 (Act No. 2000-1208 of 13 December 2000 Art. 97 Official Journal of 14 December 2000) (Act No. 2004-804 of 9 August 2004 Art. 18 II Official Journal of 11 August 2004)
I. - A Departmental Commercial Amenities Committee shall decide on the applications for authorisation submitted to it by virtue of the provisions of Articles L. 720-5 and L. 720-6.
II. - Applying the principles defined in Articles L. 720-1 and L. 720-2, the committee decides on the basis of the following issues:
1. The overall supply and demand for each business sector in the trading area concerned; - The overall impact of the project on private-car and delivery-vehicle flows; - The quality of the public transport services or potential alternative means; - The accommodation capacities for goods loading and unloading; 2. The density of supermarket and hypermarket outlets in that area; 3. The project's potential impact on the commercial and handicraft structures in that area and in the local towns, and
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COMMERCIAL CODE on the balance sought between the different types of traders. When the project involves the creation or extension of a shopping complex composed mainly of shops specialising in the selling of discounted branded goods, the said project's potential impact is also evaluated independently of the specificity of that type of outlet's commercial policy;
4. The project's likely impact in terms of salaried and unsalaried employment; 5. How competition operates within the commercial and handicraft trades; 6. The readiness of applicants wishing to open retail outlets selling mainly food items to open outlets of the same
type in urban regeneration zones, or rural territories designated for priority development, having a sales area under 300 square metres and occupying at least 10% of the space applied for.
III. - The decisions of the Departmental Committee make reference to the activities of the Departmental Commercial Amenities Monitoring Centre.
IV. - The Departmental Commercial Amenities Monitoring Centre collates the elements required for preparation of the commercial development plans pursuant to the guidelines set out in Article L. 720-1. It takes into consideration, where applicable, the guidelines of the territorial development directives referred to in Article L. 111-1-1 of the Planning Code and the regional planning and territorial development plans referred to in Article 34 of Act No. 83-8 of 7 January 1983 relating to the division of responsibilities between the communes, the Departments, the regions and the State.
V. - The commercial development plans are drawn up and published as determined in a Conseil d'Etat decree. VI. - Moreover, when the project envisaged concerns an urban area in which the procedures referred to in Article L.
303-1 of the Building and Housing Code and Article L. 123-11 of the Planning Code are implemented, the committee takes account of actions intended to ensure the maintenance or establishment of local outlets, tradesmen or handicraft activities.
VII. - Only plans which are accompanied by an indication of the trade name of the future operator(s) of the establishments and whose sales area is equal to or greater than a threshold determined by decree shall be examined by the committee.
VIII. - Applications relating to the creation of a retail outlet or a shopping complex as described in Article L. 720-6 having a sales area greater than 6,000 square metres are accompanied by the conclusions of a public inquiry which addresses the economic, social and regional development aspects of the proposed project in the manner determined in a Conseil d'Etat decree. The said inquiry is conducted in conjunction with the public inquiry carried out pursuant to Article 1 of Act No. 83-630 of 12 July 1983 relating to the democratisation of public inquiries and environmental protection when this is relevant to the examination of the planning application.
Article L720-4 (Law No 2003-660 of 21 July 2003 Article 56 Official Gazette of 22 July 2003)
In the overseas departments, unless a founded derogation from the Departmental Equipment Commission stipulates otherwise, the authorisation requested cannot be granted when it appears that it would have the effect of taking the total selling space of primarily food retailing outlets with a selling space greater than 300 square metres beyond a threshold of 25% for ?the department as a whole, or of increasing it if it is already above that threshold, whether this involves the plan as a whole or only a part thereof, when that space:
1. Belongs to a single trading group; 2. Belongs a single company, or to one of its subsidiaries, or to a company in which that company has an equity
participation of between 10% and 15%, or a company controlled by that single company within the meaning of Article L. 233-3;
3. Is controlled directly or indirectly by at least one partner which exerts an influence on it within the meaning of Article L. 233-16, or has a common manager in law or in fact.
Article L720-5 (Act No. 2005-157 of 23 February 2005 Art. 40, Art. 49 Official Journal of 24 February 2005) (Act No. 2006-10 of 5 January 2006 Art. 37 Official Journal of 6 January 2006)
I. - Plans for the following projects shall require a trader's licence: 1 The creation of a retail outlet having a sales area of more than 300 square metres in a new building or through the
conversion of an existing building; 2 The extension of the sales area of a retail outlet having already reached the threshold of 300 square metres or
which would exceed it through implementation of the plan. The additional use of any space, covered or otherwise, fixed or mobile, which does not come within the purview of Article L310-2 is deemed to constitute an extension;
3 The creation or extension of a shopping complex, as defined in Article L720-6, having a total sales area of more than 300 square metres or which would exceed that threshold through implementation of the plan;
4 The creation or extension of any retail fuel distribution installation, regardless of its sales area, attached to a retail outlet referred to in 1 above or a shopping complex referred to in 3 above which is not located in the public realm of motorways and expressways.
The provisions relating to fuel distribution installations are specified by decree; 5 The reuse for retail selling purposes of a sales area of more than 300 square metres released via an authorisation
to create a shop through the transfer of an existing business, regardless of the date on which the said transfer was authorised;
6 The reopening to the public, on the same site, of a retail outlet having a sales area of more than 300 square metres in premises which have not been exploited for two years, which period, in the event of judicial settlement proceedings having being brought against the operator, shall run from the day on which the owner recovered full vacant possession of the premises;
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COMMERCIAL CODE 7 New buildings, or extensions or conversions of existing buildings, entailing the creation of hotels having a capacity
of more than thirty rooms outside the Ile-de-France region and more than fifty within it. When ruling on such applications, the Departmental Commission for Commercial Equipment seeks the prior opinion
of the Departmental Commission for Touristic Development through the Regional Tourism Delegate, who attends the meeting. In addition to the criteria specified in Article L720-3, it takes the density of hotel provision in the zone concerned into consideration;
8 Any change in the business sector of an outlet having a sales area of more than 2,000 square metres is also subject to the trader's licence provided for in the present article. This threshold is reduced to 300 square metres if the outlet's new business relates mainly to foodstuffs.
For nurserymen and horticulturists, the sales area referred to 1 is the area devoted to the retail selling of products other than their own produce, as determined by decree.
II. - The combining of the sales areas of neighbouring outlets, without creation of additional sales areas, up to 1,000 square metres, or 300 square metres if the new business relates mainly to foodstuffs, does not require a trader's licence.
III. - Pharmacies do not require a trader's licence and do not come within the scope of 3 of I above. IV. - Retail markets, covered or otherwise, established on public land whose creation is decided by the municipal
council, outlets located in airports restricted to ticket-bearing travellers, and public land allocated to railway stations covering a maximum area of 1,000 square metres do not require a trader's licence.
V. - The creation or extension of garages or motor vehicle distributorships having a maintenance and repairs workshop and a total area of less than 1,000 square metres does not require a trader's licence.
VI. - When required, the trader's licence must be issued prior to the granting of a building permit, or before implementation of the plan if a building permit is not required.
Licences are granted per square metre of sales area or per unit. A new application is required if substantial changes are made to the nature of the outlet or the sales areas during
preparation or implementation of the plan. The same shall apply in the event of any change to the signage specified by the applicant.
The prior approval required for the creation of retail outlets is not transferable. VII. - The provisions of 7 of II do not apply to the overseas departments.
Article L720-6 I. – Outlets on the same site: 1. which were designed during the same development project, irrespective of whether it was completed in one or
more stages; 2. which have arrangements allowing the same customers to access various establishments; 3. certain operating elements of which are jointly managed, mainly by creating collective services or using joint
standard practices or advertising; 4. which are linked by a common legal structure directly [illegible] controlled by at least one partner exercising an
influence on it as defined in Article L. 233-16 or with a joint de jure or de facto director, shall be deemed to form part of the same shopping centre, irrespective of whether or not they are housed in
separate buildings or owned or operated by the same person. II. – However, the provisions of this Article shall not apply to joint development areas created in a town centre under
Article L. 311-1 of the Town Planning Code.
Article L720-7 Subject to specific provisions applicable to territorial authorities and local mixed economy companies, all contracts
concluded by public or private persons for the purpose of a project authorised under Articles L. 720-5 and L. 720-6 shall be notified by each contracting party to the prefect and the Tribunal de grande instance of auditors, as stipulated by decree.
This obligation shall also apply to contracts which predate the licence, governing the control or development of the land on which the licensed establishments are located. It shall apply to all types of contract, including contracts making provision for assignments free of charge, services in kind and intangible considerations.
The said notification shall be effected within two months of signature of the contract or, if the contract predates the licence, within two months of the licence.
Any person who infringes the provisions of this Article shall be liable to a fine of 15,000 euros.
Article L720-8 I. – The departmental commercial facilities committee shall be chaired by the prefect who, without taking part in the
vote, shall report to the committee on the content of the national programme for which provision is made in Article 720-1 and on the commercial development plans referred to in Article L. 720-3.
II. – In departments other than Paris it shall consist of: 1. The following three elected persons: a) the mayor of the municipality in which the site is located; b) the chairman of the public inter-municipal cooperation establishment responsible for space planning and
development to which the municipality in which the site is located belongs or, where there is none, the general councillor of the canton in which the site is located;
c) the mayor of the most densely populated municipality in the district other than the municipality in which the site is located; with the exception of the departments of Hauts-de-Seine, Seine-Saint-Denis, Val-de-Marne and the
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COMMERCIAL CODE municipalities of Essonne, Val-d'Oise, Yvelines and Seine-et-Marne, which belong to Greater Paris, if the municipality in which the site is located belongs to a town comprising at least five municipalities, the mayor of the most densely populated municipality shall be chosen from the mayors of the municipalities of the said town.
2. The following three persons: a) the chairman of the chamber of commerce and industry whose district includes the municipality in which the site
is located, or his deputy; b) the chairman of the chamber of trades whose district includes the municipality in which the site is located, or his
deputy; c) a representative of the consumer association in the department. Where the mayor of the municipality in which the site is located or the mayor of the most densely populated
municipality referred to above is also the general councillor of the canton, the prefect shall appoint the mayor of one of the municipalities in the town or district in question to replace him.
III. – In Paris it shall consist of: 1. The following three elected persons: a) the mayor of Paris; b) the mayor of the district in which the site is located; c) a district councillor appointed by the Paris council. 2. The following three persons: a) the chairman of the Paris chamber of commerce and industry or his deputy; b) the chairman of the Paris chamber of trades or his deputy; c) a representative of the consumer associations in the department. IV. – Every member of the departmental commercial facilities committee shall notify the prefect of their financial
interests and business functions. Members of the committee may not vote on projects in which they have a direct personal interest or if they
represent or have represented one of the interested parties. V. - The heads of decentralised government departments in charge of installations, competition, consumer affairs
and employment shall attend committee meetings. VI. - In the region of Ile-de-France, the representative of the prefect of the region shall also attend committee
meetings. Applications for licences shall be processed by the decentralised government departments. VII. - Applications for licences shall be filed as stipulated by decree of the Conseil d'Etat. Applications resulting in
sales surfaces of no more than 1,000 square metres shall be subject to a simplified procedure. VIII. - Members of the committee shall be appointed and shall serve in office as stipulated by decree of the Conseil
d'Etat.
Article L720-9 The departmental commercial facilities committee shall authorise projects for which four members have voted in
favour using the procedure set by decree. The minutes shall record how each member voted.
Article L720-10 The departmental commercial facilities committee shall rule on the applications for licences referred to in Article L.
720-5 within four months of the date on which the application was filed and its decisions shall be reasoned mainly with reference to the provisions of Articles L. 720-1 and L. 720-3. The licence shall be deemed to have been granted on expiration of this deadline. Members of the committee shall be given at least one month's notice of applications before ruling on them.
The decision of the departmental committee may be referred for appeal to the national commercial facilities committee for which provision is made in Article L. 720-11 within two months of notification, at the initiative of the prefect, two members of the committee, one of whom shall be elected, or the applicant. The national commercial facilities committee shall rule on the appeal within four months.
The committees shall authorise or reject projects in their entirety. Planning permission shall not be granted, building work shall not commence and no new application shall be filed
for the same property with the departmental commercial facilities committee before the deadline for appeal expires or, in the event of an appeal, before the decision at appeal is returned by the national committee.
If the application for a licence is rejected on substantive grounds by the aforementioned national committee, no new application may be filed by the same applicant, for the same project or for the same land for a period of one year from the date of the ruling by the national committee.
Article L720-11 I. - The national commercial facilities committee shall consist of eight members appointed by decree for single term
of office of six years at the proposal of the minister for trade. Half the committee may be reappointed every three years. II. - The committee shall consist of: 1. A member of the Conseil d'Etat appointed by the vice-president of the Conseil d'Etat, who shall act as chairman. 2. A member of the court of auditors appointed by the first president of the court of auditors. 3. A member of the tax inspectorate appointed by the chief tax inspector. 4. A general inspector appointed by the vice chairman of the general council of bridges and roads. 5. Four persons appointed for their knowledge of distribution, consumer affairs, town and country planning or
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COMMERCIAL CODE employment, to be appointed (one each) by the president of the national assembly, the president of the Senate, the minister for trade and the minister for employment.
II. - In the event of a tied vote, the chairman of the committee shall have the casting vote. III. - The members of the committee shall notify the chairman of their financial interests and business functions. IV. - Members of the committee may not vote on projects in which they have a direct personal interest or if they
represent or have represented one of the interested parties. V. - The mayor of the municipality in which the site is located and who sits on the departmental committee against
whose decision an appeal has been filed shall be heard by the national committee if he so requests. VI. - A government commissioner appointed by the minister for trade shall attend committee meetings and be given
a copy of the files. VII. - The members and chairman of the committee shall be appointed and shall serve as stipulated by decree of the
Conseil d'Etat.
TITLE III National interest markets Articles L730-1 to
L730-17
Article L730-1 (Order No. 2004-274 of 25 March 2004 Art. 34 Official Journal of 27 March 2004)
National-interest markets are public market management facilities. Access to them is restricted to producers and traders who contribute to the organisation and productivity of the distribution channels for agricultural products and foodstuffs, the promotion of competition in those economic sectors and public food safety.
The classification of an agricultural products and foodstuffs market as a national-interest market, or the creation of such a market, is pronounced by decree on a proposal from the regional council.
Such markets may be established in the public domain, or in the private domain of one or more public-law corporations, or on real property belonging to private bodies.
The declassification of a national-interest market may be pronounced by decree of the Minister of Trade and the Minister of Agriculture on a proposal from the regional council if the market's activities no longer permit performance of the missions specified in the first paragraph or a general organisation pursuant to the provisions of Article L. 730-15.
Article L730-2 (Order No. 2004-274 of 25 March 2004 Art. 35 Official Journal of 27 March 2004)
The list of the national-interest markets which the State intends to develop and manage is determined by decree. Other national-interest markets are developed and managed on behalf of the State by the communes of the territory
in which they are established, or by groups of interested communes, or through the designation of a public or private legal entity. In the latter case, the legal entity is designated after opening to competition in the manner determined in Article L. 1411-1 of the General Territorial Authorities Code.
The said communes, or groups of communes, may nevertheless confer the power to designate on the region or, in Corsica, on the territorial authority of Corsica.
Article L730-3 (Order No. 2004-274 of 25 March 2004 Art. 36 I, II Official Journal of 27 March 2004)
The licence fees collected from permit holders and any other contributions to its operating costs made by its users are established by the market manager and approved by the Prefect.
The market manager shall submit an interim profit-and-loss statement showing how all the market's established or foreseeable social, financial and public-health (1) obligations are to be met.
If the market's financial statements show or point to a serious discrepancy, the ministers in charge may, having informed the manager and, where applicable, the public bodies which guaranteed its borrowings, automatically increase the existing licence fees, generate new income, reduce expenditure and, in general, take any measure conducive to restoring the balance.
(1) NB - These provisions shall apply with effect from the first financial year commenced after publication of the present order (see III of Article 45 of order 2004-274).
Article L730-4 (Order No. 2004-274 of 25 March 2004 Art. 37 Official Journal of 27 March 2004)
A protective perimeter may be placed around a national-interest market under a Conseil d'Etat decree. The protective perimeter enforces the prohibitions referred to in Article L. 730-5. The prohibitions implemented apply to sales of and services pertaining to products which, in each case, are listed
by order of the ministers in charge. The decree referred to in the first paragraph determines the establishment of the national-interest market. Early removal of some or all of the perimeter, extension of the market's facilities or its transfer within the perimeter
may be determined by a decision of the relevant administrative authority.
Article L730-5 (Order No. 2004-274 of 25 March 2004 Art. 38 Official Journal of 27 March 2004)
The decree instituting the protective perimeter prohibits therein the extension, relocation or creation of any establishment in which a natural person or legal entity makes sales, other than retail sales, of products listed by
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COMMERCIAL CODE interministerial order as provided for in Article L. 730-4, or provides services pertaining to such sales.
This prohibition does not apply to producers and groups of producers in respect of products deriving from business operations located within the protective perimeter.
A change of ownership of an establishment is not treated as a new business venture. "Extension of an establishment"shall be understood to mean either the creation of new activities or an extension of
the commercial premises. The implementing regulations for the provisions of the present article are determined in a Conseil d'Etat decree.
Article L730-6 The decree establishing the protective perimeter may prohibit activities by any natural person or legal person
involving non-retail sales of or ancillary transactions pertaining to products listed by joint ministerial decree in accordance with Article L. 730-4 in all or one or more parts of the territory which it encompasses.
This ban shall enter into force on the date stipulated by the decree referred to in the preceding sub-paragraph, irrespective of the state of progress reached in compensation proceedings on the said date.
This ban shall not apply to producers or groups of producers for products from shares located within the zone(s) affected by the aforementioned ban.
The terms of application of this Article shall be stipulated by decree of the Conseil d'Etat.
Article L730-7 (Order No. 2004-274 of 25 March 2004 Art. 39 Official Journal of 27 March 2004)
Where a port zone is included within a national-interest market's protective perimeter, non-retail sales of listed products within the meaning of Article L. 730-4 made in that zone shall be subject to the following provisions.
The prohibitions referred to in Article L. 730-5 shall not apply to products shipped directly to or from that port by sea which are sold in batches above the size limits set by joint order of the ministers in charge of the national-interest markets and the minister for ports.
The decree instituting the protective perimeter may either prohibit sales of products not transported there by sea or authorise them only in batches above certain limits and subject to conditions which it determines.
Article L730-8 (Order No. 2004-274 of 25 March 2004 Art. 40 Official Journal of 27 March 2004)
By way of exception, the relevant administrative authority may grant derogations from the prohibitions referred to in Articles L. 730-5 and L. 730-7, as determined in a Conseil d'Etat decree.
Article L730-9 Where necessary, retail sales be defined by decree of the ministers in charge for the purpose of Articles L. 730-5, L.
730-6 and L. 730-7.
Article L730-10 (Order No. 2000-916 of 19 September 2000 Art. 3 Official Journal of 22 September 2000 effective 1 January 2002) (Order No. 2004-274 of 25 March 2004 Art. 41 Official Journal of 27 March 2004)
Offences against the prohibitions of Articles L. 730-5 and L. 730-7 and the provisions introduced pursuant to those articles are established and prosecuted as provided for in the first paragraph of Article L. 450-1 and Articles L. 450-2 and L. 450-3 and shall incur a fine of 15,000 euros. Articles L. 470-1 and L. 470-4 shall apply.
Article L730-11 I. – Compensation payable in reparation for losses incurred as a result of the application of the bans for which
provision is made in Article L. 730-6 shall comply with the system of compensation for compulsory purchases. II. – Compensation shall be awarded by: 1. Allocating each trader affected by the aforementioned ban an equivalent pitch to the pitch abolished within the
precinct of the market of national interest. The pitch offered shall be deemed to be equivalent if it is such that a similar business of a similar size to the
average business on the old pitch over the last three years can be conducted. If it is acknowledged that the first offer is unsatisfactory, the promoter offering the compensation shall notify the applicant of a new offer. If the judge again finds this new offer to be unsatisfactory, he shall set the balance to be paid by the promoter.
Where a trader's acknowledged right to be allocated a pitch is larger or smaller than one or more full pitches in the market of national interest, the promoter offering the compensation shall meet his obligations by offering to allocate the interested party the unit(s) which represent the pitch which is the nearest in size to the pitch to which he is entitled, whereby:
a) if the full pitch unit(s) allocated exceed the trader's rights, the trader shall pay a balance equal to the sum of the right of first accession to the part of the pitch which exceeds the part allocated as equivalent. However, the trader may ask to be allocated a pitch which is one size smaller than his rights and, if his request is satisfied, he shall receive a balance equal to the amount of the right of first accession to the part of the pitch renounced;
b) if the pitch offered and actually allocated to the interested party pursuant to the foregoing provisions is one size smaller than his rights, he shall again receive a balance calculated as described above.
2. Reimbursing the amount of the right of first accession owed by the trader for the pitch allocated, less the value of the tangible and intangible assets assigned or retained by him, up to the right of first accession.
3. Compensating for the loss of non-transferable assets and relocation expenses. III. – However, compensation may be paid in specie in lieu of the offer of pitches for which provision is made in II (1)
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COMMERCIAL CODE where traders prove that they are unable, for personal reasons or because of the particular nature of their trade, to set up elsewhere within the market precinct.
Compensation in specie shall only be paid to beneficiaries who sign a commitment limiting the activities which they may exercise in time and space.
IV. – The terms of application of the provisions of this Article shall be laid down by decree of the Conseil d'Etat.
Article L730-12 (Order No. 2004-274 of 25 March 2004 Art. 42 Official Journal of 27 March 2004)
The right to occupy a private plot held by a trader established in a national-interest market is likely to be included in any pledge of that trader's assets.
Article L730-13 Tenants of premises housing a business affected by the ban for which provision is made in Article L. 730-6 may
exercise a business for which no provision is made in the lease or transfer the lease so that a third party may exercise such business on the demised premises, any agreement to the contrary notwithstanding, including agreements concluded previously.
Tenants or persons to whom the lease is transferred shall notify the owner of the business which they intend to exercise by extrajudicial deed.
The owner may object to the exercise of the said business within one month of service of the said deed if it will cause greater inconvenience to the building, its inhabitants or the neighbourhood than the business abolished.
Disagreements shall be referred to the Tribunal de grande instance which may uphold the tenant's request and amend the rent, by way of exception from the provisions of Articles L. 145-37 to L. 145-39.
Article L730-14 Business tenants who cease trading pursuant to a decision imposing a ban in accordance with the provisions of this
chapter may terminate the lease without paying compensation to the owner, provided that they give the owner at least three months' notice by extrajudicial deed.
Article L730-15 (Order No. 2004-274 of 25 March 2004 Art. 43 Official Journal of 27 March 2004)
The laws and regulations relating to the organisation and functioning of markets for agricultural products and foodstuffs do not apply to national-interest markets.
The general organisation of the national-interest markets is determined in a Conseil d'Etat decree. Boundary changes to, and relocation of, national-interest markets without a protective perimeter are unrestricted.
Article L730-16 (Order No. 2004-274 of 25 March 2004 Art. 44 Official Journal of 27 March 2004)
The Prefect exercises policing powers within the boundaries of a national-interest market. Within the protective perimeter, he ensures that the laws and regulations governing the market are applied and reports any breaches thereof to the public prosecutor. When a market with a protective perimeter is spread across several Departments, the aforementioned powers are exercised by the Prefect designated by the Minister of the Interior.
Article L730-17 A government commissioner shall be designated and seconded to the market manager. The method of designation
and the powers granted to the commissioner shall be defined by decree of the Conseil d'Etat.
TITLE IV Commercial exhibition Articles L740-1 to
L740-3
Article L740-1 (inserted by Order No. 2004-274 of 25 March 2004 Art. 30 Official Journal of 27 March 2004)
An exhibition centre is a permanent, enclosed and independent real-property complex with appropriate installations and equipment which hosts temporary commercial or other events for all or part of the year. It does not require the licence referred to in Article L. 720-5.
Exhibition centres are registered with the relevant administrative authority. The programme of commercial events which it hosts each year are the subject of a prior declaration made to the relevant administrative authority.
Article L740-2 (inserted by Order No. 2004-274 of 25 March 2004 Art. 30 Official Journal of 27 March 2004)
A trade show is a commercial event devoted to the promotion of a series of commercial activities to invited visitors only. The only goods offered for sale on site are intended for the buyer's personal use and their value cannot exceed a ceiling determined by decree.
All trade shows are the subject of a prior declaration made to the relevant administrative authority.
Article L740-3 (inserted by Order No. 2004-274 of 25 March 2004 Art. 30 Official Journal of 27 March 2004)
The implementing regulations of the present Part are determined in a Conseil d'Etat decree.
BOOK VIII
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COMMERCIAL CODE
Certain regulated professions Articles L811-1 to L822-16
TITLE I Court-appointed receivers, legal agents in the winding-up of undertakings and
corporate analysis experts Articles L811-1 to L814-11
CHAPTER I Court-appointed receivers Articles L811-1 to
L811-16
SECTION I Tasks, conditions of access and performance and incompatibilities Articles L811-1 to
L811-10
Subsection 1 Tasks Article L811-1
Article L811-1 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 1 and Art. 13 Official Journal of 4 January 2003) (Act No. 2005-845 of 26 July 2005 Art. 158 V, Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Court-appointed receivers are natural persons or legal entities appointed by a court to administer the property of others or to perform auxiliary or supervisory functions in regard to the management of such property.
They are personally responsible for the tasks entrusted to them. When the proper course of the proceedings so requires, however, and when expressly authorised by the presiding judge, they may entrust some of those tasks to third parties, while retaining responsibility therefor.
When court-appointed receivers entrust to third parties tasks forming part of the assignment entrusted to them by the court, they shall compensate them from the remuneration they receive pursuant to the decree provided for in Article L663-2.
Subsection 2 Conditions of access to the profession Articles L811-2 to
L811-5
Article L811-2 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 2 and Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Only those whose name appears in a register drawn up by a national committee created for that purpose may be appointed by a court to perform such functions, without prejudice to the provisions specific to certain matters, including those relating to minors and protected adults, or the occasional missions which may be entrusted to members of the judicial and legal professions in civil proceedings.
By way of exception, however, the court may, via an expressly reasoned decision and after seeking the advice of the public prosecutor, appoint as receiver a natural person who can furnish proof of experience or qualifications particularly relevant to the nature of the case and who meets the conditions laid down in 1 to 4 of Article L811-5.
The persons referred to in the previous paragraph must not, during the previous five years, for whatever reason, either directly or indirectly, have received any reward or payment from the natural person or legal entity against whom an administration, assistance or supervisory measure is sought, from a person who controls that legal entity or a company controlled by it within the meaning of II and III of Article L233-16, or have acted as an advisor to the natural person or legal entity concerned or have been in any way dependent on it. They must, moreover, have no interest in the assignment entrusted to them and must not be a former director or court-appointed administrator whose name has been removed from the registers pursuant to Articles L811-6, L811-12 and L812-4. They are required to perform the duties entrusted to them in accordance with the professional obligations imposed on duly registered court-appointed receivers. They shall not perform receivership functions on a regular basis.
Upon assuming their functions, persons appointed pursuant to the second paragraph must give a sworn statement to the effect that they meet the conditions determined in 1 to 4 of Article L811-5, that they fulfil the obligations enumerated in the previous paragraph and that they are not under any prohibition so to act pursuant to the penultimate paragraph of Article L814-10.
When the court appoints a legal entity, it designates one or more natural persons within it to represent it in regard to performance of the assignment entrusted to it.
Article L811-3 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001)
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COMMERCIAL CODE (Act No. 2003-7 of 3 January 2003 Art. 3 and Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The national register is divided into sections corresponding to the jurisdiction of each court of appeal.
Article L811-4 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 4 and Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The composition of the national committee referred to in Article L811-2 is as follows: - a judge of the Court of Cassation, acting as chairman, appointed by the presiding judge of the Court of Cassation; - an officer of the National Audit Office appointed by the chairman of the National Audit Office; - a member of the Inspectorate of Public Finances appointed by the Finance Minister; - an appeal court judge appointed by the presiding judge of the Court of Cassation; - a higher commercial court judge appointed by the presiding judge of the Court of Cassation; - a professor of law, economics or management appointed by the Minister for the Universities; - a representative of the Conseil d'Etat, appointed by the vice-president of the Conseil d'Etat; - two persons qualified in an economic or social discipline appointed by the Minister of Justice; - three registered court-appointed receivers elected by their peers as determined in a Conseil d'Etat decree. In the event of a tied vote, the chairman has a casting vote. The chairman and the members of the committee, and their deputies (equal in number and chosen from the same
categories), are appointed for a three-year term of office, renewable once. A judge from the public prosecutor's office and his deputy are appointed to act as the Government's representative
on the national committee and to examine, inter alia, the applications for admission. The committee's operating costs are met by the State.
Article L811-5 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 5, Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
All persons registered by the committee must: 1 Be French nationals or citizens of a European Community member state or a European Economic Area member
state; 2 Not have been the perpetrator of facts giving rise to a criminal conviction for dishonourable conduct or lack of
integrity; 3 Not have been the perpetrator of facts of the same kind giving rise to a disciplinary or administrative sanction,
dismissal, striking off, removal from office, withdrawal of approval or withdrawal of authorisation; 4 Not have been declared personally bankrupt or made subject to one of the prohibition or forfeiture measures
provided for in Chapter V of Part II of Book VI of the present code, Part VI of Act No. 85-98 of 25 January 1985 relating to judicial receivership and liquidation of companies or, under the scheme which preceded that law, Part II of Act No. 67-563 of 13 July 1967 relating to judicial settlement, judicial liquidation, personal bankruptcy and other forms of bankruptcy;
5 Have passed the entrance examination for the vocational development programme, completed that programme and passed the receivership aptitude examination.
Only persons who hold diplomas or other qualifications determined by decree may take the entrance examination for the vocational development programme.
Notwithstanding the foregoing, persons who meet the competence and professional experience conditions laid down in a Conseil d'Etat decree are exempted from the entrance examination for the vocational development programme. The committee may, moreover, exempt such persons, as provided for in a Conseil d'Etat decree, from part of the vocational development programme and from all or part of the receivership aptitude examination.
Registered legal entities may only exercise administration functions through a member who is himself registered. Persons who can show that they have acquired a qualification which enables them to act as a court-appointed
administrator in a European Community member state other than France or a European Economic Area member state are exempted from the diploma, training course and professional examination conditions laid down in the sixth and seventh paragraphs, without prejudice to them having taken an examination to verify their knowledge as provided for in a Conseil d'Etat decree. A list of the candidates eligible to take the examination is drawn up by the committee.
Subsection 3 Conditions of performance Articles L811-6 to
L811-10
Article L811-6 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 6 and Art. 13 Official Journal of 4 January 2003)
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COMMERCIAL CODE (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The national committee, on its own initiative or at the request of the Minister of Justice, the chairman of the National Council of Court-Appointed Administrators and Court-Appointed Receivers, the government representative or the public prosecutor in whose jurisdiction the receiver is established, may, through a reasoned decision and after instructing the party concerned to present its observations, delete from the list referred to in Article L811-2 a receiver who, on account of his physical or mental state, is unable to perform his functions in the normal way, or a receiver who has shown himself to be incapable of performing his functions in the normal way.
Deregistration shall not prevent disciplinary proceedings from being brought against the receiver if the offences were committed in the performance of his duties.
Article L811-7 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Court-appointed administrators may create civil-law professional partnerships governed by Act No. 66-879 of 29 November 1966 relating to civil-law professional partnerships in order to practice their profession collectively. They may also practice their profession through independent professional firms as provided for in Act No. 90-1258 of 31 December 1990 relating to independent professional practices having a specific legislative or regulatory status or a protected designation. They may also be members of an economic interest group or a European economic interest group or partners in an undisclosed partnership governed by Part II of Act No. 90-1258 of 31 December 1990 relating to professional practices having a specific legislative or regulatory status or a protected designation.
Article L811-8 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 7, Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Cases being dealt with by a court-appointed administrator who relinquishes his functions, whatever the reason, are distributed among the other administrators by the court within three months of him ceasing his functions.
In the interest of the proper administration of justice, however, the court may authorise the former administrator to continue to deal with one or more pending cases unless he was forced to abandon his functions on account of deregistration. Such a receiver remains bound by the provisions of Articles L811-10 to L811-16, L814-1 and L814-5.
Article L811-9 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Registered persons are free to practice their profession throughout France.
Article L811-10 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 8 and Art. 13 Official Journal of 4 January 2003) (Act No. 2005-845 of 26 July 2005 Art. 164 II, Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Registered court-appointed receiver status is incompatible with the practising of any other profession, save for that of avocat.
It is also incompatible with: 1 All commercial activities, whether carried out directly or through an intermediary; 2 The status of partner in a general partnership, financing partner in a limited partnership or a partnership limited by
shares, managing director of a limited liability company, chairman of the board of directors, executive board member, general manager or chief executive of a public limited company, chairman or chief executive of a simplified joint-stock company, supervisory board member or director of a commercial company, managing partner of a civil partnership, unless those entities are engaged in administration activities or the acquisition of premises for that purpose. An administrator may also be the managing partner of a civil partnership having as its sole objective the management of family interests.
Registered court-appointed administrator status does not impede engagement in consultancy activities in matters pertaining to qualification of the person concerned or performance of the duties of ad hoc representative or mediator provided for in Articles L611-3 and L611-6 of the present code and Article L351-4 of the Rural Code, commissioner for execution of the plan, amicable administrator or liquidator, legal expert and amicable or court-appointed receiver. These activities and duties, save for those of ad hoc representative, mediator and commissioner for execution of the plan, may only be undertaken subsidiarily.
With the exception of the fourth paragraph, the conditions of the present article apply to registered legal entities.
Subsection 4
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COMMERCIAL CODE Incompatibilities Article L811-10
Article L811-10 (Law No 2001-420 of 15 May 2001 Article 113 (I) (1) Official Gazette of 16 May 2001) (Law No 2003-7 of 3 January 2003 Article 8 and Article 13 Official Gazette of 4 January 2003)
The status of listed court-appointed receiver is incompatible with the practising of any other profession, save that of legal counsel.
It is, moreover, incompatible with: 1. Any business of a commercial nature, whether conducted directly or through an intermediary. 2. The status of partner in a general partnership, of financing partner in a limited partnership or a partnership limited
by shares, of manager of a limited company, of chairman of the board of directors, of member of the executive board, of general manager or assistant general manager of a public limited company, of chairman or chief executive of a simplified joint-stock company, of member of the supervisory board or board of directors of a commercial company, and of manager of a non-commercial partnership, unless the corporate mission of those companies is the practising of the profession of court-appointed receiver or the acquisition of premises for that purpose. Moreover, a receiver may perform management duties within a non-commercial partnership whose sole purpose is the administration of family interests.
The status of listed court-appointed receiver does not preclude consultancy activities in disciplines in which the individual in question is qualified, nor the conducting of the ad hoc administration and conciliation missions provided for in Article L. 611-3 of the present Code and in Article 351-4 of the Rural Code, or those of commissioner for execution of the plan, of amicable administrator or liquidator, of court-appointed expert or of amicable or court-appointed receiver. Such activities and such missions, with the exception of ad hoc administrator, arbitrator and commissioner for execution of the plan, shall only be conducted subsidiarily.
With the exception of the fourth paragraph, the conditions of the present Article are applicable to listed legal entities.
SECTION II Monitoring, inspection and discipline Articles L811-11 to
L811-16
Subsection 1 Monitoring and inspection Articles L811-11 to
L811-11-2
Article L811-11 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 9 and Art. 13 Official Journal of 4 January 2003) (Act No. 2005-845 of 26 July 2005 Art. 155, Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Court-appointed receivers are placed under the supervision of the public prosecutor. Their professional activities are subject to inspections by the public authority during which they are required to provide all relevant information and documents without being able to object on the grounds of professional secrecy.
The organisation and terms of such inspections are determined in a Conseil d'Etat decree. In connection with the supervision entrusted to the National Council referred to in Article L814-2, court-appointed
receivers are required, without being able to object on the grounds of professional secrecy, to comply with any request for pertinent information or documents made by the inspectors.
The auditor of a receiver undergoing an inspection is required, without being able to object on the grounds of professional secrecy, to comply with the inspectors' requests for any information gathered or any document drawn up in the performance of his duties.
The Caisse des dépôts et consignations is required, without being able to object on the grounds of professional secrecy, to comply with the inspectors' requests and those of the National Council referred to in Article L814-2, concerning the supervision for which it is responsible, for any information or document relating to the movements of funds in the accounts opened in its books in the name of each receiver and the sums deposited therein by virtue of the assignments to which the inspection relates.
NB: Act 2005-845 2005-07-26 Art. 190: The last paragraph of Article L811-11 of the Commercial Code shall become effective upon publication of the act, i.e. 27 July 2005.
Article L811-11-1 (Order No. 2005-1126 of 8 September 2005 Art. 2 Official Journal of 9 September 2005) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Court-appointed receivers are required to designate an auditor to verify their special accounts and thus provide permanent auditing of all funds, bills, securities and other items belonging to others of which the court-appointed receivers are sole holders by virtue of powers received in performance of their functions.
Such auditing also covers bank accounts or post office accounts opened by an administrator in the names of debtors against whom proceedings are brought under Part II of Book VI and which operate under the sole signature of the administrator or his duly empowered representatives.
For auditing purposes, the auditors may also have access to the general accounts of the practice and the cases
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COMMERCIAL CODE entrusted to the administrator and, notwithstanding any contrary provision, request from the latter or from any third-party holders of funds any information relevant to their auditing assignment.
Article L811-11-2 (inserted by Order No. 2005-1126 of 8 September 2005 Art. 2 Official Journal of 9 September 2005)
As stipulated in a Conseil d'Etat decree, the auditors inform the authorities entrusted with supervision of the inspections and audits of court-appointed receivers and their findings and call attention to any anomalies or irregularities which have come to their notice in the performance of their assignment.
Subsection 2 Discipline Articles L811-12 A to
L811-16
Article L811-12 A (Act No. 2003-7 of 3 January 2003 Art. 10 and Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Any breach of the laws and regulations, any violation of professional ethics, and any failure of integrity or honour, even relating to facts unconnected with professional practice, results in disciplinary proceedings being brought against the receiver responsible.
Article L811-12 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 11 and Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The disciplinary action is brought by the Minister of Justice, the Public Prosecutor of the court of appeal in whose jurisdiction the facts were committed, the government representative or the chairman of the National Council of Court-Appointed Administrators and Court-Appointed Receivers. Acceptance of a registered court-appointed administrator's resignation shall not impede the disciplinary proceedings if the facts alleged were committed while he was in practice.
I. - The national registration committee sits as a disciplinary committee. The government representative performs the public prosecutor's duties thereon. It may impose the following disciplinary penalties:
1 A warning; 2 A reprimand; 3 A prohibition on practising for a period not exceeding three years; 4 Removal from the court-appointed receivers' register. II. - A warning or reprimand may be accompanied, for a period of one year, by supervisory measures determined by
the committee which impose special obligations on the receiver. Such obligations may also be imposed by the committee when a temporarily barred receiver resumes his duties.
III. - When it imposes a disciplinary penalty, the committee may decide, in view of the seriousness of the facts committed, to require the receiver to pay some or all of the costs incurred through having an auditor or an expert present at the audits or inspections which enabled those facts to be determined.
Article L811-13 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 Official Journal of 4 January 2003) (Act No. 2004-130 of 11 February 2004 Art. 69 3 Official Journal of 12 February 2004) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Any receiver against whom criminal or disciplinary proceedings are brought may be temporarily suspended from practising by the Tribunal de grande instance having jurisdiction at the place where he is established.
In urgent cases, temporary suspension may be imposed even before criminal or disciplinary proceedings commence if inspections or verifications have revealed that the sums received by the receiver in his professional capacity are at risk.
The court may end a temporary suspension at any time if so requested by the government representative or the receiver.
The suspension ceases automatically in the event of the criminal or disciplinary proceedings lapsing. It also ceases automatically, in the case envisaged in the second paragraph, if no criminal or disciplinary proceedings are brought within one month of its being imposed.
Article L811-14 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Disciplinary action lapses after ten years.
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COMMERCIAL CODE Article L811-15 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
A barred, deregistered or suspended receiver shall cease all professional acts. Any act carried out regardless of this prohibition may be declared null and void by the court sitting in chambers at
the request of any interested party or the public prosecutor. The decision is binding on all parties. Any violation of the foregoing provisions shall incur the penalties imposed for usurpation of functions by Article
433-17 of the Penal Code.
Article L811-16 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 12, Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
No person may claim court-appointed administrator status beyond the assignment entrusted to him by virtue of the second paragraph of Article L811-2 or the second paragraph of Article L811-8 unless his name appears in a register of court-appointed administrators.
Any violation of this provision shall incur the penalties imposed for usurpation of functions by Article 433-17 of the Penal Code.
The same penalties shall apply to anyone who uses a designation similar to that of "court-appointed administrator" which could create a misunderstanding in the public perception.
CHAPTER II Legal agents in the winding-up of undertakings Articles L812-1 to
L812-10
SECTION I Tasks, conditions of access and performance and incompatibilities Articles L812-1 to
L812-8
Subsection 1 Tasks Article L812-1
Article L812-1 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 14 Official Journal of 4 January 2003) (Act No. 2004-130 of 11 February 2004 Art. 69 1 Official Journal of 12 February 2004) (Act No. 2005-845 of 26 July 2005 Art. 158 V, Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Court-appointed receivers are natural persons or legal entities appointed by a court decision to represent the creditors and liquidate a business as provided for in Part II of Book VI.
They are personally responsible for the tasks entrusted to them. When the proper course of the proceedings so requires, however, and when expressly authorised by the presiding judge, they may entrust some of those tasks to third parties, while retaining responsibility therefor.
When court-appointed receivers entrust to third parties tasks forming part of the assignment entrusted to them by the court, they shall compensate them from the remuneration they receive pursuant to the decree referred to in Article L663-2.
Subsection 2 Conditions of access to the profession Articles L812-2 to
L812-3
Article L812-2 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 15 Official Journal of 4 January 2003) (Act No. 2004-130 of 11 February 2004 Art. 69 2 Official Journal of 12 February 2004) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
I. - Only those whose name appears in a register drawn up by a national committee created for that purpose may be appointed by a court to perform the functions of a court-appointed administrator.
II. - By way of exception, however, the court may, via an expressly reasoned decision and after seeking the advice of the public prosecutor, appoint as a court-appointed administrator a natural person who can furnish proof of experience or qualifications particularly relevant to the nature of the case and who meets the conditions laid down in 1 to 4 of Article L812-3.
The persons referred to in the previous paragraph must not, during the previous five years, for whatever reason,
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COMMERCIAL CODE either directly or indirectly, have received any reward or payment from a natural person or legal entity who is the subject of court-ordered receivership or liquidation proceedings, from a person who controls such a legal entity or a company controlled by it within the meaning of II and III of Article L233-16, or have acted as an advisor to the natural person or legal entity concerned or have been in any way dependent on it. They must, moreover, have no interest in the assignment entrusted to them and must not be a former director or court-appointed administrator whose name has been removed from the registers pursuant to Articles L811-6, L811-12, L812-4 and L812-9. They are required to perform the duties entrusted to them in accordance with the professional obligations imposed on duly registered court-appointed administrators. They shall not act as court-appointed administrators on a regular basis.
Upon assuming their functions, persons appointed pursuant to the first paragraph of the present indent II must give a sworn statement to the effect that they meet the conditions determined in 1 to 4 of Article L812-3, that they fulfil the obligations enumerated in the previous paragraph and that they are not under any prohibition so to act pursuant to the penultimate paragraph of Article L814-10.
III. - When the court appoints a legal entity, it designates one or more natural persons within it to represent it in regard to performance of the assignment entrusted to it.
Article L812-2-1 (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 16 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The register referred to in Article L812-2 is divided into sections corresponding to the jurisdiction of each court of appeal.
Article L812-2-2 (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 16 Official Journal of 4 January 2003) (Act No. 2004-130 of 11 February 2004 Art. 53 II 1 Official Journal of 12 February 2004) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The composition of the national committee referred to in Article L812-2 is as follows: - a judge of the Court of Cassation, acting as chairman, appointed by the presiding judge of the Court of Cassation; - an officer of the National Audit Office appointed by the chairman of the National Audit Office; - a member of the Inspectorate of Public Finances appointed by the Finance Minister; - an appeal court judge appointed by the presiding judge of the Court of Cassation; - a higher commercial court judge appointed by the presiding judge of the Court of Cassation; - a professor of law, economics or management appointed by the Minister for the Universities; - a representative of the Conseil d'Etat, appointed by the vice-president of the Conseil d'Etat; - two persons qualified in an economic or social discipline appointed by the Minister of Justice; - three registered court-appointed receivers elected by their peers as determined in a Conseil d'Etat decree. One of
them is replaced by a person chosen from a register of organisational diagnostics experts when, pursuant to the provisions of the last paragraph of Article L813-1, the committee gives an opinion on the inclusion in the register of an expert in this specialism, or his deregistration or withdrawal.
In the event of a tied vote, the chairman has a casting vote. The chairman and the members of the committee, and their deputies (equal in number and chosen from the same
categories), are appointed for a three-year term of office, renewable once A judge from the public prosecutor's office and his deputy are appointed to act as the Government's representative
on the national committee and to examine, inter alia, the applications for admission. The committee's operating costs are met by the State.
Article L812-3 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 17 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
All persons registered by the committee must: 1 Be French nationals or citizens of a Member State of the European Community or the European Economic Area; 2 Not have been the perpetrator of facts giving rise to a criminal conviction for dishonourable conduct or lack of
integrity; 3 Not have been the perpetrator of facts of the same kind giving rise to a disciplinary or administrative sanction,
dismissal, striking off, removal from office, withdrawal of approval or withdrawal of authorisation; 4 Not have been declared personally bankrupt or made subject to one of the prohibition or forfeiture measures
provided for in Chapter V of Part II of Book VI of the present code, Part VI of the aforementioned Act No. 85-98 of 25 January 1985 or, under the scheme which preceded that law, Part II of the aforementioned Act No. 67-563 of 13 July 1967;
5 Have passed the entrance examination for the vocational development programme, completed that programme and passed the receivership aptitude examination.
Only persons who hold diplomas or other qualifications determined by decree may take the entrance examination for the vocational development programme.
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COMMERCIAL CODE Notwithstanding the foregoing, persons who meet the competence and professional experience conditions laid
down in a Conseil d'Etat decree are exempted from the entrance examination for the vocational development programme. The committee may, moreover, exempt such persons, as provided for in a Conseil d'Etat decree, from part of the vocational development programme and from all or part of the receivership aptitude examination.
Registered legal entities may only exercise receivership functions through a member who is himself registered. Persons who can show that they have acquired a qualification which enables them to act as a court-appointed
liquidator in a European Community member state other than France or a European Economic Area member state are exempted from the diploma, training course and professional examination conditions laid down in the sixth and seventh paragraphs, without prejudice to them having taken an examination to verify their knowledge as provided for in a Conseil d'Etat decree. A list of the candidates eligible to take the examination is drawn up by the committee.
Subsection 3 Conditions of performance Articles L812-4 to
L812-7
Article L812-4 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 18 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The national committee, on its own initiative or at the request of the Minister of Justice, the chairman of the National Council of Court-Appointed Administrators and Court-Appointed Receivers, the government representative or the public prosecutor in whose jurisdiction the receiver is established, may, through a reasoned decision and after instructing the party concerned to present its observations, delete from the list referred to in Article L812-2 a receiver who, on account of his physical or mental state, is unable to perform his functions in the normal way, or a court-appointed administrator who has shown himself to be incapable of performing his functions in the normal way.
Deregistration shall not prevent disciplinary proceedings from being brought against the court-appointed liquidator if the offences were committed in the performance of his duties.
Article L812-5 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Court-appointed receivers may create civil-law professional partnerships governed by Act No. 66-879 of 29 November 1966 relating to civil-law professional partnerships in order to practice their profession collectively. They may also practice their profession through independent professional firms as provided for in Act No. 90-1258 of 31 December 1990 relating to independent professional practices having a specific legislative or regulatory status or a protected designation. They may also be members of an economic interest group or a European economic interest group or partners in an undisclosed partnership governed by Part II of Act No. 90-1258 of 31 December 1990 relating to professional practices having a specific legislative or regulatory status or a protected designation.
Article L812-6 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 19 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Cases being dealt with by a court-appointed receiver who relinquishes his functions, whatever the reason, are distributed among the other receivers by the court within three months of him ceasing his functions.
In the interest of the proper administration of justice, however, the court may authorise the former receiver to continue to deal with one or more pending cases unless he was forced to abandon his functions on account of deregistration. Such a receiver remains bound by the provisions of Articles L812-8 to L812-10, L814-1 and L814-5.
Article L812-7 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 20 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Registered persons are free to practice their profession throughout France.
Subsection 4 Incompatibilities Article L812-8
Article L812-8 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 21 Official Journal of 4 January 2003) (Act No. 2005-845 of 26 July 2005 Art. 164 II, Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
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COMMERCIAL CODE Registered court-appointed administrative receiver status is incompatible with the practising of any other profession. It is also incompatible with: 1 All commercial activities, whether carried out directly or through an intermediary; 2 The status of partner in a general partnership, financing partner in a limited partnership or a partnership limited by
shares, managing director of a limited liability company, chairman of the board of directors, executive board member, general manager or chief executive of a public limited company, chairman or chief executive of a simplified joint-stock company, supervisory board member or director of a commercial company, and managing partner of a civil partnership, unless those entities are engaged in administrative receivership activities or the acquisition of premises for that purpose. A receiver may also be the managing partner of a civil partnership having as its sole objective the management of family interests.
Registered court-appointed receiver status does not impede engagement in consultancy activities in matters pertaining to qualification of the person concerned or performance of the duties of ad hoc representative or mediator provided for in Articles L611-3 and L611-6 of the present code and Article L351-4 of the Rural Code, commissioner for execution of the plan, amicable administrator or liquidator, legal expert and amicable or court-appointed receiver. These activities and duties, save for those of ad hoc representative, mediator and commissioner for execution of the plan, may only be undertaken subsidiarily.
With the exception of the fourth paragraph, the conditions of the present article apply to registered legal entities.
SECTION II Monitoring, inspection and discipline Articles L812-9 to
L812-10
Article L812-9 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 22 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The provisions relating to the supervision, inspection and discipline of court-appointed administrators set forth in Articles L811-11 to L811-15 apply to court-appointed receivers.
The national registration committee sits as a disciplinary committee. The government representative performs the public prosecutor's duties thereon.
Article L812-10 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 23 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
No person may claim court-appointed receiver status beyond the assignment entrusted to him by virtue of the first paragraph of II of Article L812-2 and the second paragraph of Article L812-6 unless his name appears in a register of court-appointed receivers.
Any violation of this provision shall incur the penalties imposed for usurpation of functions by Article 433-17 of the Penal Code.
The same penalties shall apply to anyone who uses a designation similar to that of "court-appointed receiver" which could create a misunderstanding in the public perception.
CHAPTER III Corporate analysis experts Article L813-1
Article L813-1 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 24 Official Journal of 4 January 2003) (Act No. 2004-130 of 11 February 2004 Art. 53 I 1 and 2 Official Journal of 12 February 2004) (Order No. 2005-845 of 26 July 2005 Art. 165 I Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Organisational diagnostics experts are appointed by the courts to draw up a report on the economic and financial situation of a company in the context of conciliation proceedings or protection proceedings or judicial reorganisation proceedings, or to assist the drawing up of such a report pertaining to protection proceedings or judicial reorganisation proceedings.
Such experts must not, during the previous five years, for whatever reason, either directly or indirectly, have received any reward or payment from the natural person or legal entity against whom an administration, assistance or supervisory measure is sought or from a person who controls that legal entity, nor must they have been in any way dependent on it. They must, moreover, have no interest in the assignment entrusted to them.
Upon assuming their functions, the experts thus designated must give a sworn statement to the effect that they fulfil the obligations enumerated in the previous paragraph.
Such experts may be chosen from those in this specialism listed in the registers compiled for the information of judges pursuant to Article 2 of Act No. 71-498 of 29 June 1971 concerning court-appointed experts.
Each court of appeal shall register experts in this specialism pursuant to the provisions of Article 2 of Act No. 71-498
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COMMERCIAL CODE of 29 June 1971 relating to court-appointed experts. They are listed in a national register of court-appointed experts once the national committee created in Article L812-2 has deliberated thereon.
CHAPTER IV Common provisions Articles L814-1 to
L814-11
SECTION I Appeals against decisions of registration committees and representation before
the public authorities Articles L814-1 to L814-2
Subsection 1 Appeals against decisions of registration committees Article L814-1
Article L814-1 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 26 Official Journal of 4 January 2003) (Act No. 2004-130 of 11 February 2004 Art. 69 4 Official Journal of 12 February 2004) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Appeals against the decisions made in regard to registration, withdrawal and discipline by the national committees are brought before the Paris Court of Appeal.
Such appeals have suspensive effect.
Subsection 2 Representation of the professions before the public authorities Article L814-2
Article L814-2 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 26 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The professions of court-appointed administrator and court-appointed receiver are represented in dealings with the public authorities by a National Council of Court-Appointed Administrators and Court-Appointed Receivers, a public interest institution with legal personality which is responsible for protecting the collective interests of those professions. The National Council is also responsible for ensuring that the members of those professions meet their obligations, for organising their professional training, for ensuring that they meet their obligation to maintain and improve their knowledge, for overseeing their studies and for drawing up an annual report thereon for the Minister of Justice.
The electoral and operational formalities of the National Council, which has two electoral colleges of equal numbers representing the court-appointed administrators and the court-appointed receivers respectively, are determined in a Conseil d'Etat decree.
SECTION II Guarantee of the representation of businesses, professional civil liability and
remuneration Articles L814-3 to L814-11
Subsection 1 Guarantee of the representation of businesses and professional civil
liability Articles L814-3 to L814-5
Article L814-3 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13, Art. 27 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
A fund having legal personality and managed by its contributors is established to guarantee repayment of the funds, bills or securities received or managed by each registered court-appointed administrator and each registered court-appointed receiver relative to the transactions they carry out as a result of their remit. Two public prosecutors are designated to perform the government representative's functions in relation to the fund, one as the incumbent and the other as his deputy.
Membership of this fund is compulsory for each registered court-appointed administrator and each registered court-appointed receiver.
The fund's resources consist of the proceeds of a special annual subscription paid by each registered court-appointed administrator and each registered court-appointed receiver.
The subscriptions paid by the court-appointed administrators and the court-appointed receivers are applied to guaranteeing registered court-appointed administrators and court-appointed receivers only.
In the event of the fund's resources proving insufficient to meet its obligations, it shall issue a supplementary call for
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COMMERCIAL CODE funds to the registered professionals.
The fund's guarantee applies without the benefit of discussion provided for in Article 2021 of the Civil Code being invoked against the creditors and upon simple proof of the due and payable nature of the debt and non-representation of the funds by the registered court-appointed administrator or court-appointed receiver.
The fund is required to take out insurance against the risks it incurs through application of the present code. Appeals against the fund's decisions are brought before the Tribunal de grande instance of Paris.
Article L814-4 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13 and Art. 28 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Each registered court-appointed administrator and each registered court-appointed receiver must be able to show that he has taken out insurance through the guarantee fund. This insurance covers the financial consequences of the civil liability incurred by court-appointed administrators and court-appointed receivers through acts of negligence or misconduct committed by them or their employees in the performance of their duties.
Article L814-5 (Act No. 2001-420 of 15 May 2001 Art. 113 I 1 Official Journal of 16 May 2001) (Act No. 2003-7 of 3 January 2003 Art. 13, Art. 29 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
An unregistered court-appointed administrator, designated as provided for in the second paragraph of Article L811-2, and an unregistered court-appointed receiver, designated as provided for in the first paragraph of II of Article L812-2, must prove, upon accepting his assignment, that he has a guarantee covering reimbursement of the funds, bills or securities, and also, when necessary, an insurance contract underwritten by the guarantee fund. This insurance covers the financial consequences of the civil liability incurred by that court-appointed administrator or court-appointed receiver through acts of negligence or misconduct committed by him or his employees in the performance of their duties.
Subsection 2 Remuneration Articles L814-6 to
L814-11
Article L814-6 (Law No 2001-420 of 15 May 2001 Article 113 I (1) Official Gazette of 16 May 2001)
The Conseil d'Etat shall issue a decree stipulating the terms of remuneration of court-appointed receivers, irrespective of whether or not they are registered on the national list, and of legal agents for winding up companies, together with the rules for paying remuneration to persons called, at their request, to carry out certain technical tasks for the benefit of the company not included in their brief.
Article L814-7 (inserted by Law No. 2003-7 of 3 January 2003 Article 13 and Article 34 (I) Official Gazette of 4 January 2003)
When the proceeds from realisation of the company's assets are insufficient to enable the liquidator or the creditors' representative to receive, by way of the remuneration due to him pursuant to the provisions of Article L. 814-6, a sum at least equal to the threshold set in a Conseil d'Etat decree, a decision of the court declares that case to be impecunious on the basis of a proposal from the insolvency judge and in the light of the elements of proof produced by the liquidator or the creditors' representative.
That same decision determines the sum corresponding to the difference between the remuneration actually received by the liquidator or the creditors' representative and the threshold referred to in the previous paragraph.
The sum paid to the creditors' representative or the liquidator is deducted from a portion of the interest paid by the Caisse des dépôts et consignations on the funds deposited with it pursuant to Articles L. 621-33, L. 621-64 and L. 622.8. That portion is allocated to a special fund managed by the Caisse des dépôts et consignations under the control of an administration committee. The present paragraph's terms of application are determined in a Conseil d'Etat decree.
Article L814-8 (Act No. 2003-7 of 3 January 2003 Art. 13, Art. 30, Art. 31 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
When a registered court-appointed administrator or court-appointed receiver instructed by a court to carry out the tasks referred to in Book VI in regard to a company has already acted as a consultant to that company or carried out the tasks referred to in the antepenultimate paragraphs of Articles L811-10 and L812-8 therein, he shall inform the court of the nature and scale of such involvement during the previous five years.
Failure to comply with the provisions of the previous paragraph shall result in disciplinary proceedings.
Article L814-9 (Act No. 2003-7 of 3 January 2003 Art. 13, Art. 30, Art. 32 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
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COMMERCIAL CODE Registered court-appointed administrators and court-appointed receivers are required to undergo continuous
training which enables them to maintain and improve their knowledge. This training is organised by the National Council referred to in Article L814-2.
Article L814-10 (Act No. 2003-7 of 3 January 2003 Art. 13, Art. 30 and Art. 35 Official Journal of 4 January 2003) (Act No. 2005-845 of 26 July 2005 Art. 164 III, Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Unregistered court-appointed administrators and court-appointed receivers instructed as provided for in the second paragraph of Article L811-2 or the first paragraph of II of Article L812-2 are placed under the supervision of the public prosecutor and their professional activities are subject to inspections by the public authority during which they are required to provide all relevant information and documents without being able to object on the grounds of professional secrecy.
The auditors of unregistered court-appointed administrators or receivers undergoing an inspection are required, without being able to object on the grounds of professional secrecy, to comply with the inspectors' requests for any information gathered or document drawn up in the performance of their duties.
In the event of such court-appointed professionals being accused of an act constituting an offence, violation or infraction referred to in Article L811-12 A, the public prosecutor may ask the Tribunal de grande instance to ban them from acting as court-appointed administrators or receivers.
Prohibition measures imposed pursuant to the previous paragraph are notified to the Minister of Justice for onward transmission to the chief public prosecutors.
Article L814-11 (Act No. 2003-7 of 3 January 2003 Art. 13, Art. 30 and Art. 36 Official Journal of 4 January 2003) (Order No. 2005-845 of 26 July 2005 Art. 165 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Any sum held by a court-appointed administrator or a court-appointed receiver by virtue of an amicable remit is paid in to a deposit account with the Caisse des dépôts et consignations upon receipt, barring any express decision of the principal to designate another financial institution. In the event of a delay, the court-appointed administrator or court-appointed receiver shall pay interest at the legal rate plus five points on any sum he has failed to deposit.
TITLE II Auditors Articles L820-1 to
L822-16
PRELIMINARY CHAPTER General provisions Articles L820-1 to
L820-7
Article L820-1 (Law No 2001-420 of 15 May 2001 Article 113 (I) (2) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 99, Article 110 (1) Official Gazette of 2 August 2003)
Notwithstanding any provision to the contrary, Articles L. 225-227 to L. 225-242, as well as the provisions of the present Title, are applicable to auditors appointed in all legal entities regardless of the scope of their remit. They are also applicable to those persons, without prejudice to the specific rules which apply to them, regardless of their legal status.
The obligations imposed on chairmen of boards of directors, managing directors, directors, members of the executive board and managers of commercial companies are applicable to the management of legal entities which are required to have an auditor.
Article L820-2 ( (Law No 2001-420 of 15 May 2001 Article 113 (I) (2) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 99, Article 110 (2) Official Gazette of 2 August 2003)
No person who fails to meet the conditions laid down in Articles L. 225-227 to L. 225-242 and the provisions of the present Title may claim to be an auditor.
Article L820-3 (Law No 2001-420 of 15 May 2001 Article 113 (I) (2) Official Gazette of 16 May 2001) (Law No 2003-706 of 1 August 2003 Article 99, Article 109 Official Gazette of 2 August 2003)
Prior to his appointment, the auditor shall write to the entity whose accounts he proposes to audit to tell it that he is a member of a national or international network which is not solely devoted to the legal auditing of accounts and whose members have a common financial interest. If applicable, he shall also inform it of the total amount of fees received by that network for services unconnected with auditing which were provided by that network to an entity controlled by or which controls, within the meaning of subparagraphs I and II of Article L. 233-3, the entity whose accounts the said auditor is proposing to audit. This information is included in the documents made available to shareholders pursuant to Article L. 225-108. After annual updating by the auditor, that information is made available to the partners and shareholders and, in the case of associations, to the members and donors, at the registered office of the entity whose
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COMMERCIAL CODE accounts he audits.
The information regarding the amount of the fees paid to each auditor is available to the partners and shareholders and, in the case of associations, to the members and donors, at the controlled entity's registered office.
Article L820-4 (Law No 2001-420 of 15 May 2001 Article 113 (I) (2) Official Gazette of 16 May 2001) (Law No 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-706 of 1 August 2003 Article 99 Official Gazette of 2 August 2003)
Notwithstanding any provision to the contrary: 1. A penalty of two years' imprisonment and a fine of 30,000 euros (criminal penalties) are imposed on any
executive of a legal entity required to have an auditor who fails to organise such an appointment or who fails to invite the auditor to any general meeting;
2. A penalty of five years' imprisonment and a fine of 75,000 euros are imposed on the executives of a legal entity or any person in the service of a legal entity required to have an auditor who obstructs the auditing or verification of the accounts by the auditors or other experts appointed pursuant to Articles L. 223-37 and L. 225-231, or who refuses to provide them, there and then, with all the items relevant to their mission and, in particular, any contracts, books, accounting documents and minute books.
Article L820-5 (Law No 2001-420 of 15 May 2001 Article 113 (I) (2) Official Gazette of 16 May 2001) (Law No 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-706 of 1 August 2003 Article 99 Official Gazette of 2 August 2003)
A penalty of one years' imprisonment and a fine of 15,000 euros (criminal penalties) are imposed on any person who:
1. Uses the designation"auditor", or any similar designation which might be confused with it, who is not duly registered as prescribed in subparagraph I of Article L. 225-219, and has not taken an oath in the manner stipulated in Article L. 225-223;
2. Illegally practises as an auditor in breach of the provisions of subparagraph I of Article L. 225-219 and Article L. 225-223 or those of any temporary ban or suspension.
Articles 226-3 and 226-14 of the Penal Code, relating to professional secrecy, are applicable to auditors.
Article L820-6 (Law No 2001-420 of 15 May 2001 Article 113 (I) (2) Official Gazette of 16 May 2001) (Law No 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-706 of 1 August 2003 Article 99 Official Gazette of 2 August 2003)
A penalty of six months' imprisonment and a fine of 7,500 euros (criminal penalties) are imposed on any person who, either on his own account, or as a partner in an auditing firm, accepts, performs or retains the functions of an auditor notwithstanding legal incompatibilities.
Article L820-7 (Law No 2001-420 of 15 May 2001 Article 113 (I) (2) Official Gazette of 16 May 2001) (Law No 2000-916 of 19 September 2000 Article 3 Official Gazette of 22 September 2000 effective 1 January 2002) (Law No 2003-706 of 1 August 2003 Article 99 Official Gazette of 2 August 2003)
A penalty of five years' imprisonment and a fine of 75,000 euros (criminal penalties) are imposed on any person who, either on his own account, or as a partner in an auditing firm, gives or confirms false information regarding a legal entity's position or who fails to disclose any criminal facts he is aware of to the Public Prosecutor.
CHAPTER I Organisation and Monitoring of the Profession Articles L821-1 to
L821-12
Article L821-1 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
A High Council for Auditorship has been created by the Minister of Justice, with the following mission: - to provide supervision for the profession with the support of the National Company of Auditors instituted by Article
L. 821-6; - to ensure respect for professional ethics and the independence of auditors. Consistent with this mission, the High Council for Auditorship performs the following tasks, among others: - to identify and promote good professional practices; - to give an opinion on the rules of professional practice drafted by the National Company of Auditors prior to their
approval via an order of the Minister of Justice; - in its capacity as an appeals authority for decisions of the regional commissions referred to in Article L. 822-2, to
effect registration of auditors; - to determine the content of and framework for the periodic inspections provided for in Article L. 821-7 and to
supervise their implementation and monitoring pursuant to Article L. 821-9; - in its capacity as an appeals authority for decisions of the regional chambers referred to in Article L. 822-6, to deal
with disciplinary issues relating to auditors.
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COMMERCIAL CODE Article L821-2 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
The opinion referred to in subparagraph six of Article 281-1 is accepted by the Minister of Justice after consultation with the Financial Markets Authority, the Banking Commission and the Supervisory Commission for general insurance companies, mutual insurance companies and provident societies whenever it pertains to their specific areas of responsibility.
Article L821-3 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
The composition of the High Council for Auditorship is as follows: 1. Three law officers, one of whom is a judge at the Court of Cassation, as chairman, a senior official of the Cour
des Comptes, and a second Judge; 2. The chairman of the Financial Markets Authority or his representative, a representative of the Minister for the
Economy and a university professor specialising in law, economics or finance; 3. Three persons qualified in economics and finance; two of whom are chosen for their expertise in the field of
corporate public issues; the third is chosen for his expertise in the field of small and medium-sized enterprises, commercial private-law corporations or associations;
4. Three auditors, two of whom have experience of auditing the accounts of entities which launch public issues or appeals for public generosity.
The decisions are taken on a majority of the votes cast. In the event of a tied vote, the chairman has a casting vote. The chairman and the members of the High Council for Auditorship are appointed by decree for renewable periods
of six years. The composition of the High Council for Auditorship is renewed by half every three years. The High Council for Auditorship forms specialised advisory committees from among its members to prepare its
decisions and recommendations. Those committees may co-opt experts if necessary.
Article L821-4 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
The Minister of Justice appoints a government representative to the High Council for Auditorship. He sits on the Council with a right of discussion only. The government representative does not attend deliberations relating to disciplinary matters. In regard to other matters, he may request a second deliberation under terms and conditions determined in a Conseil d'Etat decree.
Article L821-5 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
The funds required to operate the High Council are charged to the budget of the Ministry of Justice.
Article L821-6 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
A National Company of Auditors, a public corporation with legal personality instituted under the aegis of the Minister of Justice and directed to the public benefit, is tasked with representing the auditing profession in its dealings with the public authorities.
It contributes to the promotion of proper practises in the profession, supervision thereof and the protection of the honour and independence of its members.
A Regional Company of Auditors having legal personality is instituted within the territorial jurisdiction of each court of appeal. The Minister of Justice may nevertheless constitute groupings based on a proposal from the National Company after the latter has consulted the Regional Companies concerned.
The resources of the National Company and the Regional Companies are provided mainly by an annual subscription collected from the auditors.
Article L821-7 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
While practising their profession, auditors are subject to: a) The inspections referred to in Article L. 821-8; b) Periodic checks organised on the basis of parameters defined by the High Council; c) Occasional checks decided on by the national company or the regional companies.
Article L821-8 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
The Minister of Justice may launch immediate inspections and request the assistance of the Financial Markets Authority, the National Company of Auditors, the Banking Commission or the Commission for general insurance companies, mutual insurance companies and provident societies in connection therewith.
The Financial Markets Authority may immediately launch any inspection of an auditor of an entity which makes public issues or of a collective investment undertaking and request the assistance of the National Company of Auditors in connection therewith, and also, if appropriate, that of the authorities enumerated in subparagraph 2 of Article L. 621-9-2 of the Monetary and Financial Code. Neither the chairman of the Financial Markets Authority nor his representative shall sit on the High Council while any disciplinary proceedings resulting from such an inspection are in progress.
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COMMERCIAL CODE Article L821-9 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
The checks referred to in subparagraphs b) and c) of Article L. 821-7 are carried out by the national company or the regional companies.
When such checks relate to the auditors of entities that make public issues or of collective investment undertakings, they are carried out by the National Company with the assistance of the Financial markets Authority.
Article L821-10 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
When particularly serious facts come to light which would justify criminal or disciplinary penalties, the Minister of Justice may, from the inception of proceedings, when the urgent nature and the public interest warrant it, and when the person concerned has had an opportunity to present his observations, pronounce the temporary suspension of an auditor (natural person). The chairman of the Financial Markets Authority and the chairman of the National Company of Auditors may refer the matter to him.
The Minister of Justice may end the temporary suspension at his own discretion at any time at the request of the person concerned or of the authorities referred to in the first paragraph.
The temporary suspension ceases automatically and immediately upon closure of the criminal and disciplinary procedures.
Article L821-11 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
The implementing provisions for Articles L. 821-3 and L. 821-6 to L. 821-10 are determined in a Conseil d'Etat decree.
Article L821-12 (inserted by Law No. 2003-706 of 1 August 2003 Article 100 Official Gazette of 2 August 2003)
Auditors are requested to provide all the information and documents requested of them when inspections and checks are carried out, without being able to invoke professional secrecy.
CHAPTER II Auditors'status Articles L822-1 to
L822-16
SECTION I Registration and discipline Articles L822-1 to
L822-8
Subsection 1 Registration Articles L822-1 to
L822-5
Article L822-1 (inserted by Law No. 2003-706 of 1 August 2003 Article 101, Article 102, Article 103, Official Gazette of 2 August 2003)
No person shall practice as an auditor without prior registration on a list established for that purpose.
Article L822-2 (inserted by Law No. 2003-706 of 1 August 2003 Article 101, Article 102, Article 103, Official Gazette of 2 August 2003)
A Regional Registration Commission is established at the main facility of each court of appeal. It compiles and revises the list referred to in Article L. 822-1.
Each Regional Registration Commission is composed of: 1. A judge acting as chairman; 2. A senior official of the Chambre Régionale des Comptes; 3. A university professor specialising in law, economics or finance; 4. Two persons qualified in law, economics or finance; 5. A representative of the Minister for the Economy; 6. A member of the Regional Company of Auditors. The chairman and members of the Regional Registration Commission, and their deputies, are appointed by a
decree of the Minister of Justice for a renewable period of three years. The decisions are taken on a majority of the votes cast. In the event of a tied vote, the chairman has a casting vote. Appeals against the decisions of the Regional Registration Commissions are brought before the High Council for
Auditorship.
Article L822-3 (inserted by Law No. 2003-706 of 1 August 2003 Article 101, Article 102, Article 103, Official Gazette of 2 August 2003)
Every auditor must go before the court of appeal within whose jurisdiction he practices to swear to fulfil the duties of his profession with honour, probity and independence, and to respect, and impose respect for, the laws.
Article L822-4
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COMMERCIAL CODE (inserted by Law No. 2003-706 of 1 August 2003 Article 101, Article 102, Article 103, Official Gazette of 2 August 2003)
Any person registered pursuant to Article L. 822-1 who has not practised as an auditor for three years is required to take a special part-time training course before accepting an auditing mission.
Article L822-5 (inserted by Law No. 2003-706 of 1 August 2003 Article 101, Article 102, Article 103, Official Gazette of 2 August 2003)
The implementing provisions of the present subsection are determined in a Conseil d'Etat decree.
Subsection 2 Discipline Articles L822-6 to
L822-8
Article L822-6 (inserted by Law No. 2003-706 of 1 August 2003 Article 101, Article 102, Article 103, Official Gazette of 2 August 2003)
The Regional Registration Commission, sitting as a Regional Disciplinary Chamber, is competent to judge a disciplinary action brought against an auditor who is a member of a regional company, regardless of the place in which the misconduct with which he is charged is alleged to have taken place.
Article L822-7 (inserted by Law No. 2003-706 of 1 August 2003 Article 101, Article 102, Article 103, Official Gazette of 2 August 2003)
Cases may be referred to the Regional Disciplinary Chamber by the Minister of Justice, the Public Prosecutor, the Chairman of the National Company of Auditors or the chairman of the Regional Company.
In addition to the persons determined in a Conseil d'Etat decree, the chairman of the Financial Markets Authority may refer cases pertaining to disciplinary action to the Principal State Prosecutor. When he has exercised that right, he is not entitled to sit on the disciplinary bench of the High Council hearing the same proceedings.
The decisions of the Regional Disciplinary Chamber are appealable before the High Council for Auditorship at the initiative of the authorities referred to in the present Article and the professional concerned.
A judge, appointed by the Minister of Justice, attached to the Principal State Prosecutor's Office or the Public Prosecutor's Office, exercises the Public Prosecutor's functions for each Regional Chamber and the High Council in regard to disciplinary matters.
The present Article's implementing provisions are determined in a Conseil d'Etat decree.
Article L822-8 (inserted by Law No. 2003-706 of 1 August 2003 Article 101, Article 102, Article 103, Official Gazette of 2 August 2003)
- The disciplinary penalties are: 1. A warning; 2. A reprimand; 3. A temporary ban of up to five years; 4. Removal from the list. Honorary titles may also be withdrawn. A warning, a reprimand or a temporary ban may be accompanied by the additional penalty of ineligibility for
membership of professional bodies for a maximum of ten years. A temporary ban may be pronounced with suspended effect. The suspension of the penalty does not extend to any
additional penalty imposed pursuant to the previous paragraph. If the auditor commits a breach or an offence which results in the application of a further disciplinary penalty within five years of the penalty being pronounced, this shall, barring a reasoned decision to the contrary, give rise to execution of the first penalty without any prospect of concurrency with the second.
When they pronounce a disciplinary penalty, the High Council and the Regional Chambers may decide to make the auditor liable for payment of some or all of the costs incurred through carrying out the inspections or verifications which enabled the penalised misconduct to be established.
SECTION II Ethics and Independence of Auditors Articles L822-9 to
L822-16
Article L822-9 (inserted by Law No. 2003-706 of 1 August 2003 Article 104 (I) Official Gazette of 2 August 2003)
The auditing profession is practised by natural persons or by firms created by such persons in whatever form. Three quarters of an auditing firm's capital shares must be held by auditors. When an auditing firm has an equity
interest in another auditing firm, shareholders or partners who are not auditors cannot hold more than 25% of the total of the two firms' capital shares. The posts of chief executive, chairman of the board of directors or of the executive board, chairman of the supervisory board and general manager must be held by auditors. At least three quarters of the members of the management, administrative and supervisory structures and at least three quarters of the shareholders or partners must be auditors. The permanent representatives of auditing firms, whether partners or shareholders, must be auditors.
In registered auditing firms, the auditing functions are performed, on behalf of the firm, by natural-person auditors who are partners, shareholders or executives of that firm. Those persons can only perform auditing functions for one
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COMMERCIAL CODE auditing firm. The members of the board of directors or of the supervisory board can be employees of the company without limitation in terms of number or conditions of seniority being applied to employee status.
In the event of the decease of an auditor who is a shareholder or a partner, his beneficiaries have two years in which to sell their shares to an auditor.
The admission of any new shareholder is subject to prior approval which, under the terms and conditions of the memorandum and articles of association, can be given either by a general meeting of shareholders or partners, or by the board of directors or the supervisory board or the management, as applicable.
Notwithstanding these provisions, these functions may be performed concurrently within one auditing firm and a second auditing firm in which the first firm holds more than half of the share capital or if at least half of the partners of the two firms are common to both.
Article L822-10 (inserted by Law No. 2003-706 of 1 August 2003 Article 104 (I) Official Gazette of 2 August 2003)
The functions of an auditor are incompatible with: 1. Any activity or any act likely to jeopardise his independence; 2. Any paid employment; an auditor may nevertheless provide training associated with the practising of his
profession or occupy a remunerated post in an auditing firm or an accounting firm; 3. Any commercial activity, whether conducted directly or through an intermediary.
Article L822-11 (inserted by Law No. 2003-706 of 1 August 2003 Article 104 (II) Official Gazette of 2 August 2003)
I - An auditor shall not directly or indirectly take, receive or retain an interest in an entity whose accounts he audits, or in an entity which controls that entity or is controlled by it within the meaning of subparagraphs I and II of Article L. 233-3.
Without prejudice to the provisions of the present Book or those of Book II, the code of ethics referred to in Article L. 822-16 defines the concomitant or prior personal, financial and professional connections which are incompatible with the auditor's mission. It specifies, among other things, the situations in which the auditor's independence is affected when he belongs to a national or international multidisciplinary network whose members have a common economic interest through the provision of services to an entity which is controlled by or which controls, within the meaning of subparagraphs I and II of Article L. 233-3, the entity whose accounts are audited by the said auditor. The code of ethics also specifies the limitations that must be applied to the holding of financial interests by the auditor's employees and associates in the companies whose accounts he audits.
II. - Auditors are prohibited from providing any advice or other service to the person who entrusts them with the auditing of their accounts, or to the persons who control that person within the meaning of subparagraphs I and II of that same Article, which is unrelated to the formalities having direct relevance to their auditing task as defined in the standards of professional practice referred to in the sixth paragraph of Article L. 821-1.
When an auditor is affiliated to a national or international network whose members have a common economic interest and which is not exclusively involved in the legal auditing of accounts, he cannot audit the accounts of an entity which, by virtue of a contract entered into with that network or with a member of that network, benefits from a provision of services which are not directly linked to the auditor's mission according to the assessment made by the High Council for Auditorship pursuant to the third paragraph of Article 821-1.
Article L822-12 (inserted by Law No. 2003-706 of 1 August 2003 Article 104 (II) Official Gazette of 2 August 2003)
Individual auditors and signing members of an auditing firm cannot be appointed as directors or employees of a company they have audited until five years have elapsed since they last audited that company.
During that same period, they cannot perform those functions in a legal entity which controls or is controlled, within the meaning of subparagraphs I and II of Article L. 233-3, by the company whose accounts they audited.
Article L822-13 (inserted by Law No. 2003-706 of 1 August 2003 Article 104 (II) Official Gazette of 2 August 2003)
Persons who have been directors or employees of a legal entity cannot be appointed as auditors of that legal entity until five years have elapsed since they were employed by that company.
During that same period, they cannot be appointed as auditors of legal entities which hold at least 10% of the capital of the legal entity in which they performed their functions, or which held at least 10% of the capital when those functions ceased.
The prohibitions provided for in the present Article for the persons referred to in the first paragraph are applicable to auditing firms in which the said persons are partners, shareholders or executives.
Article L822-14 (inserted by Law No. 2003-706 of 1 August 2003 Article 104 (II) Official Gazette of 2 August 2003)
Individual auditors and signing members of auditing firms are prohibited from auditing the accounts of legal entities which make public issues for more than six consecutive financial years.
This provision also applies to the legal entities referred to in Article 612-1 and the associations referred to in Article L. 612-4, when such legal entities make appeals for public generosity.
Article L822-15 (Act No. 2003-706 of 1 August 2003 Art. 104 II Official Journal of 2 August 2003)
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COMMERCIAL CODE (Act No. 2005-845 of 26 July 2005 Art. 162 V Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Without prejudice to the provisions of Article L225-240 and the specific legislative provisions, the auditors and their employees and experts are bound by professional secrecy in respect of all facts, actions and information of which they have knowledge on account of their functions. They are nevertheless released from professional secrecy in regard to the presiding judge of the commercial court or the Tribunal de grande instance when they apply the provisions of Chapter IV of Part III of Book II or Chapter II of Part I of Book VI.
When a legal entity draws up consolidated accounts, the consolidating legal entity's auditors and the auditors of the consolidated entities are, each in respect of the others, released from professional secrecy. These provisions also apply when an entity draws up combined accounts.
Article L822-16 (inserted by Law No. 2003-706 of 1 August 2003 Article 104 (II) Official Gazette of 2 August 2003)
A Conseil d'Etat decree approves a code of ethics for the profession after seeking the advice of the High Council for Auditorship and, for the provisions which apply to auditors who act for entities that make public issues, the Financial Markets Authority.
BOOK IX Provisions relating to overseas Articles L911-1 to
L950-7 TITLE I Provisions specific to Saint-Pierre-et-Miquelon Articles L911-1 to
L910-5
Article L910-1 (Order No. 2004-328 of 15 April 2004 Art. 8 Official Journal of 17 April 2004) (Act No. 2004-1343 of 9 December 2004 Art. 78 XIX Official Journal of 10 December 2004) (Act No. 2005-842 of 26 July 2005 Art. 11 III Official Journal of 27 July 2005)
The following articles do not apply in Saint Pierre and Miquelon: 1 L125-3, L126-1; 2 L225-245-1, L229-1 to L229-15, L238-6, L244-5 and L252-1 to L252-13; 3 L470-6; 4 L522-1 to L522-40 and L524-20; 5 L711-5, L711-9, L713-6 to L713-10, L713-11 to L713-17 insofar as they relate to consular delegates; L720-1 to
L730-17.
Article L910-2 The terms set out below shall be replaced as follows for the purpose of the application of this Code to
Saint-Pierre-et-Miquelon: 1. "Tribunal de grande instance"or"Tribunal d'instance"by"court of first instance". 2. "Tribunal de commerce"or"lay commercial judge"by"court of first instance ruling on commercial matters". 3. "Department"or"district"by"territorial authority". 4. "Official Gazette of Civil and Commercial Announcements"by"Records of administrative deeds of the territorial
authority".
Article L910-3 References in the provisions of this Code applicable to Saint-Pierre-et-Miquelon to other Articles of this Code shall
only refer to the Articles made applicable to the authority with the changes for which provision is made in the following chapters.
Article L910-4 Where no changes are made, references in the provisions of this Code applicable to Saint-Pierre-et-Miquelon to
provisions which do not apply to it shall be replaced by references to local provisions which serve the same purpose.
Article L910-5 Articles which refer to the European Community shall apply in accordance with the association decision for which
provision is made in Article 136 of the Treaty establishing the European Community. References to the agreement on the European Economic Area shall not apply.
CHAPTER I Provisions Amending Book I Articles L911-1 to
L911-14
Article L911-1 (Order No. 2004-279 of 25 March 2004 Art. 6 Official Journal of 27 March 2004)
In Article L. 122-1, the words"by the Prefect of the Department in which he envisages conducting his business initially"are replaced by the words"by the prefect of the territory if the foreign national is to conduct his business there
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COMMERCIAL CODE initially".
Article L911-2 The exemptions for which provision is made in Articles L. 123-25 to L. 123-27 shall apply to natural persons subject
to a simplified taxation system under regulations in force in Saint-Pierre-et-Miquelon.
Article L911-3 In Article L. 133-7, the words"customs duty, tax, expenses and fines connected with a transport operation"shall be
deleted.
Article L911-4 Registration with the registry of the court of first instance ruling on commercial matters shall exempt deeds and
declarations submitted to it in application of Article L. 141-5 from the need to be formally recorded.
Article L911-5 For the purpose of Articles L. 141-15, L. 143-7 and L. 145-28, a magistrate of the court of first instance may be
delegated by the president.
Article L911-6 In Article L. 141-13, the words"by Articles 638 and 653 of the General Tax Code"shall be replaced by the words"by
the provisions of local tax laws".
Article L911-7 In Article L. 144-5, the words"Articles L. 3211-2 and L. 3212-1 to L. 3212-12 of the Public Health Code"shall be
replaced by the words"the Articles of the public health Code applicable locally to hospitalisation or confinement with or without the consent of the interested party".
Article L911-8 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
Article L. 145-2 is modified as follows: I. - In 4, the words:"to the State, to the departments, to the communes, to the public institutions"are replaced with
the words"to the State, to the territorial authorities and to the public institutions"; II. - In 6, the words"to the social security fund of the Maison des Artistes et reconnus auteurs d'œuvres graphiques
et plastiques, as defined in Article 71 of Annex III of the General Tax Code"are replaced with the words"to the local social security fund for the creators of graphic and plastic arts, as defined in the tax code applicable in the territory".
Article L911-9 For the purpose of Article L. 145-6, the words"evacuation of the premises included in a sector or perimeter for which
provision is made in Articles L. 313-3 and L. 313-4 of the Town Planning Code"shall be replaced by the words"evacuation of the premises for which provision is made in Article L. 145-18".
Article L911-10 In Article L. 145-13, the words"subject to the provisions of the law of 28 May 1943 on the application to foreigners of
legislation governing residential leases and farming leases"shall be deleted.
Article L911-11 The second sub-paragraph of Article L. 145-18 shall be worded as follows: "The same shall apply for the purpose of restoring buildings involving repair, conservation, modernisation or
demolition work which changes the living conditions of a set of buildings so that the premises have to be evacuated. Such work may be decided and carried out in accordance with local regulations either by the public authorities with local jurisdiction or at the initiative of one or more owners who may but need not have form a freeholders' association, in which case the owner or owners shall be specially authorised to do so on terms laid down by the state representative, who shall stipulate the commitments which owners must make as to the type and extent of the work.
Buildings acquired by developers shall only be assigned by mutual agreement, once they have been restored, in accordance with the type specifications approved by the state representative."
Article L911-12 In Article L. 145-26, the words"and the territorial authority"shall be inserted after the words"to the state, the
departments, the municipalities".
Article L911-13 The first sub-paragraph of Article L. 145-34 shall be worded as follows: "Unless the factors which determine the rental value change significantly, the variation in the rent applicable when
the lease for renewal takes effect, provided that it is for no longer than nine years, shall not exceed the variation in a local quarterly construction cost index since the rent for the expired lease was originally set. This index shall be calculated in accordance with the terms of an order issued by the state representative. If there is no clause in the contract stipulating the reference quarter for the index, the variation in the local quarterly construction index set for the purpose by the aforementioned order shall be used."
Article L911-14 Article L. 145-35 shall be amended as follows:
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COMMERCIAL CODE I. – In the first sub-paragraph, the word"departmental"shall be deleted. II. – The final sub-paragraph shall be worded as follows: "The composition of the committee and the method of appointing the members and the rules of procedure thereof
shall be decided by order of the state representative."
CHAPTER II Provisions Amending Book II Articles L912-1 to
L912-6
Article L912-1 (Order No. 2004-274 of 25 March 2004 Art. 46 II Official Journal of 27 March 2004)
In Articles L. 223-18, L. 225-36 and L. 225-65, the words"in the same Department or an adjacent department"are replaced by the words"in the territory".
Article L912-2 The final sub-paragraph of Article L. 225-43 and of Article L. 225-91 shall be deleted.
Article L912-3 In the second sub-paragraph of Article L. 225-102, the words"and by the salaried employees of a workers'
cooperative as defined in Law No 78-763 of 19 July 1978 on the status of workers' cooperatives"shall be deleted.
Article L912-4 (Order No. 2004-604 of 24 June 2004 Art. 59 Official Journal of 26 June 2004)
In Article L. 225-115 (5), the words"payments made pursuant to 1 and 4 of Article 238 bis of the General Tax Code"are replaced by the words"tax deductions under the provisions of the local Tax Code applicable to the total deductions from the taxable profits of companies which make payments for the benefit of works by public-interest bodies or approved societies or which make donations of works of art to the State".
Article L912-5 In Article L. 225-196 IV, the words"calculating national insurance contributions"shall be replaced by the
words"calculating national insurance contributions payable under the local social security system".
Article L912-6 In Article L. 225-270 VI, the words"the provisions of Article 94 A of the General Tax Code"shall be replaced by the
words"the provisions of the local tax Code applicable to net capital gains from disposals for money consideration of securities and corporate rights".
CHAPTER III Provisions Amending Book III Article L913-1
Article L913-1 The second sub-paragraph of Article L. 322-9 shall be worded as follows: "They shall comply with the provisions of the local tax Code applicable to public sales and auctions."
CHAPTER IV Provisions Amending Book IV Articles L914-1 to
L914-2
Article L914-1 In the second sub-paragraph of Article L. 442-2 the word"any"shall be inserted before the words"turnover taxes".
Article L914-2 Article L. 443-1 shall be amended as follows: I. – In no. 3, the words"Article 403 of the General Tax Code"shall be replaced by the words"by the provisions of the
local tax Code". II. – No. 4 shall be worded as follows: "4. "Seventy-five days from delivery for purchases of alcoholic beverages liable for the circulation taxes for which
provision is made in the local tax Code".
CHAPTER V Provisions Amending Book V Articles L915-1 to
L915-5
Article L915-1 The second sub-paragraph of Article L. 511-62 shall read as follows: "The withdrawal shall include the sums referred to in Articles L. 511-45 and L. 511-46, in addition to any brokerage
fees or stamp duty for which provision is made in the local tax Code."
Article L915-2 The first sub-paragraph of Article L. 524-19 shall be worded as follows: "The duty to be collected by the clerk of the court of first instance ruling on commercial matters shall be set by
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COMMERCIAL CODE decree."
Article L915-3 In the first sub-paragraph of Article L. 525-2, the words"according to local regulations"shall be inserted after the
words"the fixed duty".
Article L915-4 In Article L. 525-9 II, the words"the preferential right referred to in Article L. 243-4 of the Social Security Code"shall
be replaced by the words"the preferential right organised for the benefit of the social welfare fund of the territorial authority".
Article L915-5 Article L. 525-18 shall be amended as follows: I. – In no. 1, the reference to decree no. 53-968 of 30 September 1953 shall be replaced by a reference to decree
no. 55-639 of 20 May 1955. II. – No. 2 shall be worded as follows: "Ocean-going ships."
CHAPTER VI Provisions Amending Book VI Article L916-1
Article L916-1 (inserted by Act No. 2005-845 of 26 July 2005 Art. 193 I Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
4 of III of Article L643-11 is not applicable in Saint Pierre and Miquelon.
CHAPTER VI Provisions Amending Book VI Articles L917-1 to
L917-4
Article L917-1 In Articles L. 711-2 and 711-4, the word"government"shall be replaced by the words"state representative to the
authority".
Article L917-2 In the third sub-paragraph of Article L. 711-6, the words"or the municipality"shall be replaced by the words"the
municipality or authority".
Article L917-3 In Article L. 711-7, the words"as defined in and for the purpose of Article L. 961-10 of the Employment Code"shall
be deleted.
Article L917-4 In Article L. 712-1, the words"by means of a tax in addition to the business tax"shall be replaced by the words"as set
out in the local tax Code".
TITLE II Provisions applicable to Mayotte Articles L921-1 to
L920-7
Article L920-1 (Act No. 2003-710 of 1 August 2003 Art. 38 II Official Journal of 2 August 2003) (Order No. 2005-43 of 20 January 2005 Art. 3 I Official Journal of 22 January 2005 effective 1 February 2005) (Act No. 2005-842 of 26 July 2005 Art. 11 III Official Journal of 27 July 2005)
Without prejudice to the amendments made in the following chapters, the following provisions of the present code are applicable in Mayotte:
1 Book I, with the exception of Articles L125-3 and L126-1; 2 Book II, with the exception of Articles L225-245-1, L229-1 to L229-15, L238-6, L244-5 and L252-1 to L252-13; 3 Book III, with the exception of Articles L321-1 to L321-38; 4 Book IV, with the exception of Articles L441-1, L442-1 and L470-6; 5 Book V, with the exception of Articles L522-1 to L522-40, L524-12, L524-20 and L524-21; 6 Book VI, excluding Articles L622-19, L625-9 and L670-1 to L670-8; 7 Part I of Book VII, with the exception of Articles L711-5 and L712-1 and the provisions relating to consular
delegates; 8 Book VIII.
Article L920-2 The terms set out below shall be replaced as follows for the purpose of the application of this Code to the authority: 1. "Tribunal de grande instance"or"Tribunal d'instance" by "court of first instance". 2. "Tribunal de commerce"or"lay commercial judge"by"court of first instance ruling on commercial matters".
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COMMERCIAL CODE 3. "Conseil de prud'hommes"by"employment tribunal". 4. "Department"or"district"by"territorial authority". 4. "Official Gazette of Civil and Commercial Announcements"by"Records of administrative deeds of the territorial
authority".
Article L920-3 References in the provisions of this Code applicable to Mayotte to other Articles of this Code shall only refer to the
Articles made applicable to the authority with the changes for which provision is made in the following chapters.
Article L920-4 Where no changes are made, references in the provisions of this Code applicable to Mayotte to provisions which do
not apply to it shall be replaced by references to local provisions which serve the same purpose.
Article L920-5 References in the provisions of this Code applicable to Mayotte to provisions of the Employment Code shall only
apply there if there is a provision applicable locally which serves the same purpose.
Article L920-6 References to registration in the trades register shall be replaced by references to registration in accordance with
regulations applicable to Mayotte.
Article L920-7 Articles which refer to the European Community shall apply in accordance with the association decision for which
provision is made in Article 136 of the Treaty establishing the European Community. References to the agreement on the European Economic Area shall not apply.
CHAPTER I Provisions Amending Book I Articles L921-1 to
L921-14
Article L921-1 (Order No. 2004-279 of 25 March 2004 Art. 7 I Official Journal of 27 March 2004)
In Article L. 122-1, the words"by the Prefect of the Department in which he envisages conducting his business initially"are replaced by the words"by the Prefect of Mayotte if the foreign national is to conduct his business there initially".
Article L921-2 The exemptions for which provision is made in Articles L. 123-25 to L. 123-27 shall apply to natural persons subject
to a simplified taxation system under regulations in force in Mayotte.
Article L921-3 In Article L. 133-6, the words"those which derive from the provisions of Article 1269 of the New Code of Civil
Procedure"shall be replaced by the words"claims for accounts to be revised and proceeds to be settled which are presented with a view to adjustment in the event of error, omission or inaccurate presentation".
Article L921-4 In Article L. 133-7, the words"customs duty, tax, expenses and fines connected with a transport operation"shall be
deleted.
Article L921-5 For the purpose of Articles L. 141-15, L. 143-7, L. 144-1 to L. 144-13 and L. 145-28, a magistrate of the court of first
instance may be delegated by the president.
Article L921-6 In Article L. 141-13, the words"of the return prescribed by Articles 638 and 653 of the General Tax Code"shall be
replaced by the words"of the return prescribed by the provisions of local tax laws".
Article L921-7 In Article L. 144-5, the words"Articles L. 3211-2 and L. 3212-1 to L. 3212-12 of the Public Health Code"shall be
replaced by the words"the Articles of the public health Code applicable in the authority to hospitalisation or confinement with or without the consent of the interested party".
Article L921-8 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
Article L. 145-2 is modified as follows: I. - In 4, the words:"to the State, to the departments, to the communes, to the public institutions"are replaced with
the words"to the State, to the territorial authorities and to the public institutions"; II. - In 6, the words"to the social security fund of the Maison des Artistes et reconnus auteurs d'œuvres graphiques
et plastiques, as defined in Article 71 of Annex III of the General Tax Code"are replaced with the words"to the local social security fund for the creators of graphic and plastic arts, as defined in the tax code applicable in the territory".
Article L921-9
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COMMERCIAL CODE For the purpose of Article L. 145-6, the words"evacuation of the premises included in a sector or perimeter for which
provision is made in Articles L. 313-3 and L. 313-4 of the Town Planning Code"shall be replaced by the words"evacuation of the premises for which provision is made in Article L. 145-18".
Article L921-10 In Article L. 145-13, the words"subject to the provisions of the law of 28 May 1943 on the application to foreigners of
legislation governing residential leases and farming leases"shall be deleted.
Article L921-11 The second sub-paragraph of Article L. 145-18 shall be worded as follows: "The same shall apply for the purpose of restoring buildings involving repair, conservation, modernisation or
demolition work which changes the living conditions of a set of buildings so that the premises have to be evacuated. Such work may be decided and carried out in accordance with local regulations either by the public authorities with local jurisdiction or at the initiative of one or more owners who may but need not have form a freeholders' association, in which case the owner or owners shall be specially authorised to do so on terms laid down by the state representative, who shall stipulate the commitments which owners must make as to the type and extent of the work.
Buildings acquired by developers shall only be assigned by mutual agreement, once they have been restored, in accordance with the type specifications approved by the state representative."
Article L921-12 In Article L. 145-26, the words"and the territorial authority"shall be inserted after the words"to the state, the
departments, the municipalities".
Article L921-13 The first sub-paragraph of Article L. 145-34 shall be worded as follows: "Unless the factors which determine the rental value change significantly, the variation in the rent applicable when
the lease for renewal takes effect, provided that it is for no longer than nine years, shall not exceed the variation in a local quarterly construction cost index since the rent for the expired lease was originally set. This index shall be calculated in accordance with the terms of an order issued by the state representative. If there is no clause in the contract stipulating the reference quarter for the index, the variation in the local quarterly construction index set for the purpose by the aforementioned order shall be used."
Article L921-14 Article L. 145-35 shall be amended as follows: I. – In the first sub-paragraph, the word"departmental"shall be deleted. II. – The final sub-paragraph shall be worded as follows: "The composition of the committee and the method of appointing the members and the rules of procedure thereof
shall be decided by order of the state representative."
CHAPTER II Provisions Amending Book II Articles L922-1 to
L922-10
Article L922-1 (Order No. 2004-604 of 24 June 2004 Art. 56 II Official Journal of 26 June 2004)
In Articles L. 225-177, L. 225-179 and L. 233-11, the words"the publication date of Act No. 2001-420 of 15 May 2001"are replaced by the words"the publication date of Order No. 2004-604 of 24 June 2004 reforming the rules governing transferable securities issued by commercial companies and the extension overseas of the provisions which amended the commercial legislation".
Article L922-2 (Order No. 2004-274 of 25 March 2004 Art. 47 III Official Journal of 27 March 2004)
In Articles L. 223-18, L. 225-36 and L. 225-65, the words"in the same Department or an adjacent Department"are replaced by the words"in the territory".
Article L922-3 The final sub-paragraph of Article L. 225-43 and of Article L. 225-91 shall be deleted.
Article L922-4 (Order No. 2004-604 of 24 June 2004 Art. 60 II Official Journal of 26 June 2004)
In 5 of Article L. 225-115, the words"payments made pursuant to 1 and 4 of Article 238 bis of the General Tax Code"are replaced by the words"tax deductions under the provisions of the local tax law applicable to the total deductions from the taxable profits of companies which make payments for the benefit of works by public-interest bodies or approved societies or which make donations of works of art to the State".
Article L922-5 (Order No. 2004-604 of 24 June 2004 Art. 56 II Official Journal of 26 June 2004)
In Articles L. 225-105, L. 225-230 and L. 225-231, the words"the works council"are replaced by the words"the staff delegates".
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COMMERCIAL CODE Article L922-6
In Articles L. 225-231, L. 232-3, L. 232-4, L. 234-1 and L. 234-2, the words"works council"shall be replaced by the words"staff delegates".
Article L922-7 In Article L. 225-270 VI, the words"the provisions of Article 94 A of the General Tax Code"shall be replaced by the
words"the provisions of the local tax Code applicable to net capital gains from disposals for money consideration of securities and corporate rights".
Article L922-8 The final sub-paragraph of Article L. 228-36 shall be deleted.
Article L922-9 In Article L. 233-24, the words"or of Article 97 VII"shall be deleted.
Article L922-10 The second sub-paragraph of Article L. 251-7 shall be deleted.
CHAPTER III Provisions Amending Book III Articles L923-1 to
L923-2
Article L923-1 In Article L. 322-1, the words"Article 53 of Law No 91-650 of 9 July 1991 on the reform of enforcement procedures
and Article 945 of the Code of Civil Procedure"shall be replaced by the words"the provisions of civil procedure applicable in the territory to the sale of inherited chattels".
Article L923-2 The second sub-paragraph of Article L. 322-9 shall be worded as follows: "They shall comply with the provisions of the tax Code applicable in the authority to public sales and auctions."
CHAPTER IV Provisions Amending Book IV Articles L924-1 to
L924-6
Article L924-1 (Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004) (Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004)
In the first paragraph of Article L. 430-2, the word"three"is replaced by the word"two". The fourth and fifth paragraphs of the said article are deleted.
Article L924-2 (Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004) (Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004)
In Article L. 430-3, the last sentence of the first paragraph is deleted. In the third paragraph of that same article, the words", or the total or partial referral of an operation of community-wide dimensions,"are deleted.
Article L924-3 (Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004) (Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004)
The last paragraph of Article L. 441-2 is replaced by four paragraphs worded as follows: "The cessation of advertising which does not comply with the provisions of paragraph 1 may be ordered by the
investigating judge or by the court to which the proceedings are referred, or at the request of the public prosecutor or as a matter of course. The measure thus taken shall be enforceable notwithstanding any appeal.
The measure may be lifted by the court which ordered it or to which the case is referred. It shall become ineffective if a judgment of nonsuit or acquittal is returned.
Rulings on applications for the lifting of orders may be appealed against before the appellate court of next instance, depending on whether they were made by an investigating judge or the court to which the proceedings were referred.
The appellate court of next instance shall rule within ten days of receiving the evidence."
Article L924-4 (Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004) (Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004)
In the second paragraph of Article L. 442-2, the word"any"is inserted before the words"turnover tax".
Article L924-5 (inserted by Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004)
The last paragraph of Article L. 442-3 is replaced by four paragraphs worded as follows: "The cessation of advertising may be ordered by the investigating judge or by the court to which the proceedings
are referred, or at the request of the public prosecutor or as a matter of course. The measure thus taken shall be
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COMMERCIAL CODE enforceable notwithstanding any appeal.
The measure may be lifted by the court which ordered it or to which the case is referred. It shall become ineffective if a judgment of nonsuit or acquittal is returned.
Rulings on applications for the lifting of orders may be appealed against before the appellate court of next instance. The appellate court of next instance shall rule within ten days of receiving the evidence."
Article L924-6 (inserted by Order No. 2004-823 of 19 August 2004 Art. 3 II 1 Official Journal of 21 August 2004)
Article L. 443-1 is amended as follows: I. - In 1, the words"referred to in Articles L. 326-1 to L. 326-3 of the Rural Code"are replaced by the words"pursuant
to the provisions of the Rural Code applicable in the territory"; II. - In 3, the words"in Article 403 of the General Tax Code"are replaced by the words"by the provisions of the Tax
Code applicable in the territory"; III. - 4 is worded as follows: "4. Seventy-five days after the date of delivery for purchases of alcoholic beverages subject to consumption duty
under the Tax Code applicable in the territory."
CHAPTER V Provisions Amending Book V Articles L925-1 to
L925-6
Article L925-1 The second sub-paragraph of Article L. 511-62 shall read as follows: "The withdrawal shall include the sums referred to in Articles L. 511-45 and L. 511-46, in addition to any brokerage
fees or stamp duty for which provision is made in the local tax Code."
Article L925-2 In Articles L. 523-8 and L. 524-6, the words"Articles 1426 to 1429 of the New Code of Civil Procedure"shall be
replaced by the words"provisions of civil procedure applicable locally to offers of payment and consignations".
Article L925-3 The first sub-paragraph of Article L. 524-19 shall be worded as follows: "The duty to be collected by the clerk of the court of first instance ruling on commercial matters shall be set by
decree."
Article L925-4 In the first sub-paragraph of Article L. 525-2, the words"according to local regulations"shall be inserted after the
words"the fixed duty".
Article L925-5 In Article L. 525-9 II, the words"the preferential right referred to in Article L. 243-4 of the Social Security Code"shall
be replaced by the words"the preferential right organised for the benefit of the social welfare fund of the territorial authority".
Article L925-6 Article L. 525-18 shall be amended as follows: I. – In no. 1, the reference to decree no. 53-968 of 30 September 1953 shall be replaced by a reference to decree
no. 55-639 of 20 May 1955. II. – No. 2 shall be worded as follows: "Ocean-going ships and inland waterway boats."
CHAPTER VI Provisions Amending Book VI Articles L926-1 to
L926-7
Article L926-1 (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L625-2, the words "referred to in Article L432-7 of the Labour Code" are replaced by the words "in regard to information of a confidential nature provided as such".
Article L926-2 (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
For application of Article L622-24, the bodies referred to in Article L351-21 of the Labour Code are the local bodies
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COMMERCIAL CODE responsible for allocating unemployment benefit and collecting contributions.
Article L926-3 (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
For application of Articles L622-24, L622-26, L626-5 to L626-7, L626-20, L625-3, L625-4 and L662-4, the institutions referred to in Article L143-11-4 of the Labour Code are the local institutions responsible for implementing the insurance scheme covering the risk of non-payment of wages and salaries in the event of court-ordered receivership or liquidation proceedings.
Article L926-4 (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
For application of Articles L626-5 to L626-7, the institutions governed by Book IX of the Social Security Code are the local occupational, supplemental or occupational benefits pensions institutions which are linked to the national insurance and welfare schemes and are covered by the provisions applicable in the municipality.
Article L926-5 (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L626-14, the reference to Article 28 of decree No. 55-22 of 4 January 1955 reforming real-property advertising is replaced by the reference to the provisions applicable in the municipality relating to the advertising of real-property rights other than liens and mortgages.
Article L926-6 (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L642-1, the obligation placed on the court to take account of the provisions of 1, 2, 3 and 4 of Article L331-3 of the Rural Code entails the following:
"Observance of the order of priority established between settlement of young farmers and enlargement of farms, bearing in mind the economic and social interest of maintaining the autonomy of the farm to which the application relates;
When farms are enlarged or combined, to take account of the prospects of settlement on a viable farm, the location of the land concerned in relation to the applicant's or applicants' principal place(s) of business, the area of the property covered by the application and the areas already developed by the applicant(s), and by the sitting tenant;
To take into consideration the personal situation of the applicant(s): age, family and business situation and, if applicable, those of the sitting tenant, as well as the number and nature of the jobs involved;
To take account of the registered plan of the farms concerned, either in relation to the principal place of business or with a view to preventing changes of ownership from compromising developments made with the aid of public funds."
Article L926-7 (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 194 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
4 of III of Article L643-11 is not applicable.
CHAPTER VII Provisions Amending Book VII Article L927-1
Article L927-1 (inserted by Order No. 2005-43 of 20 January 2005 Art. 3 III Official Journal of 22 January 2005 effective 1 February 2005)
For application of Article L711-6 in Mayotte, the government representative in Mayotte is empowered to grant the authorisation provided for in this article to the chamber of commerce and industry of Mayotte through a permanent delegation from the minister in charge of the chambers of commerce and industry.
TITLE III Provisions applicable in New Caledonia Articles L931-1 to
L930-7
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COMMERCIAL CODE Article L930-1 (Act No. 2003-706 of 1 August 2003 Art. 116 Official Journal of 2 August 2003) (Act No. 2003-710 of 1 August 2003 Art. 38 II Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 57 III Official Journal of 26 June 2004) (Act No. 2005-842 of 26 July 2005 Art. 11 III Official Journal of 27 July 2005) (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Without prejudice to the amendments made in the following chapters, the following provisions of the present code are applicable in New Caledonia:
1 Book I, with the exception of Articles L124-1 to L126-1, L131-1 to L131-6, L131-9, L134-1 to L134-17, L145-34 to L145-36, L145-38 and L145-39;
2 Book II, with the exception of Articles L225-245-1, L229-1 to L229-15, L238-6, L244-5 and L252-1 to L252-13; 3 Book III, with the exception of Articles L310-4, L321-1 to L321-38, L322-7 and L322-10; 4 Book V, with the exception of Articles L522-1 to L522-40, L524-12, L524-20 and L524-21; 5 Book VI, with the exception of Articles L622-19, L625-9 and L670-1 to L670-8; 6 Part II of Book VIII.
Article L930-2 The terms set out below shall be replaced as follows for the purpose of the application of this Code in the territory: 1. "Tribunal de grande instance"or"Tribunal d'instance"by"court of first instance". 2. "Tribunal de commerce"or"lay commercial judge"by"joint Tribunal de commerce". 3. "Conseil de prud'hommes"by"employment tribunal". 4. "Official Gazette of Civil and Commercial Announcements"by"Official Gazette of New Caledonia". 5. "Department"or"district"by"New Caledonia"or"province". 6. "Prefect"or"sub-prefect"by"state representative in New Caledonia".
Article L930-3 References in the provisions of this Code applicable to New Caledonia to other Articles of this Code shall only refer
to the Articles made applicable to New Caledonia with the changes for which provision is made in the following chapters.
Article L930-4 Where no changes are made, references in the provisions of this Code applicable to New Caledonia to provisions
which do not apply to it shall be replaced by references to local provisions which serve the same purpose.
Article L930-5 References in the provisions of this Code applicable to New Caledonia to provisions of the Employment Code shall
only apply there if there is a provision applicable locally which serves the same purpose.
Article L930-6 References to registration in the trades register shall be replaced by references to registration in accordance with
regulations applicable in New Caledonia.
Article L930-7 Articles which refer to the European Community shall apply in accordance with the association decision for which
provision is made in Article 136 of the Treaty establishing the European Community. References to the agreement on the European Economic Area shall not apply.
CHAPTER I Provisions Amending Book I Articles L931-1 to
L931-19
Article L931-1 In Article L. 122-1, the words"by the prefect of the department in which the foreigner is to conduct his business"shall
be replaced by the words"by the New Caledonian authority with jurisdiction".
Article L931-2 The exemptions for which provision is made in Articles L. 123-25 to L. 123-27 shall apply to natural persons subject
to a simplified taxation system under regulations in force in New Caledonia.
Article L931-3 In Article L. 131-11, the words"If registered, he shall be struck off from and may not be reinstated on the list of
brokers drawn up in accordance with regulations"shall be deleted.
Article L931-4 For the purpose of Article L. 133-6: 1. The words"those which derive from the provisions of Article 1269 of the New Code of Civil Procedure"shall be
replaced by the words"claims for accounts to be revised and proceeds to be settled which are presented with a view to adjustment in the event of error, omission or inaccurate presentation".
2. The provisions of the final sub-paragraph shall apply in the event of transportation effected on behalf of New Caledonia.
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COMMERCIAL CODE Article L931-5
In Article L. 133-7, the words"customs duty, tax, expenses and fines connected with a transport operation"shall be deleted.
Article L931-6 For the purpose of Articles L. 141-15, L. 143-7, L. 144-1 to L. 144-13 and L. 145-28, a magistrate of the court of first
instance may be delegated by the president.
Article L931-7 In Article L. 141-13, the words"by Articles 638 and 653 of the General Tax Code"shall be replaced by the words"by
the provisions of the tax Code applicable in New Caledonia on verbal declarations of changes".
Article L931-8 In Article L. 144-5, the words"Articles L. 3211-2 and L. 3212-1 to L. 3212-12 of the Public Health Code"shall be
replaced by the words"the Articles of the public health Code applicable in New Caledonia to hospitalisation or confinement with or without the consent of the interested party".
Article L931-9 Article L. 144-11 shall be worded as follows: "Article L. 144-11. – If, under local regulations, the real estate management contract contains a sliding scale clause,
a rent review may be demanded in accordance with the terms of a decision by the local authority with jurisdiction, any agreement to the contrary notwithstanding if, when the said clause is applied, the rent rises or falls by more than one quarter in relation to the previous price set in the contract or by law."
Article L931-10 Article L. 144-12 shall be worded as follows: "Article L. 144-12 – If the parties are unable to reach an amicable agreement on the rent review, proceedings shall
be instituted and heard in accordance with the provisions governing price reviews for residential leases on buildings or commercial or industrial leases on premises.
The judge shall take account of all the factors to be assessed and shall adjust the range of the sliding scale to the fair rental value on the day of notification. The new price shall apply as of the said date, unless the parties agree on an earlier or later date before or during the proceedings."
Article L931-11 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
Article L. 145-2 is modified as follows: I. - In 4, the words:"to the State, to the departments, to the communes, to the public institutions"are replaced with
the words"to the State, to the territorial authorities and to the public institutions"; II. - In 6, the words"to the social security fund of the Maison des Artistes et reconnus auteurs d'œuvres graphiques
et plastiques, as defined in Article 71 of Annex III of the General Tax Code"are replaced with the words"to the local social security fund for the creators of graphic and plastic arts, as defined in the tax code applicable in the territory".
Article L931-12 For the purpose of Article L. 145-6, the words"evacuation of the premises included in a sector or perimeter for which
provision is made in Articles L. 313-3 and L. 313-4 of the Town Planning Code"shall be replaced by the words"evacuation of the premises for which provision is made in Article L. 145-18".
Article L931-13 In Article L. 145-13, the words"subject to the provisions of the law of 28 May 1943 on the application to foreigners of
legislation governing residential leases and farming leases"shall be deleted.
Article L931-14 The second sub-paragraph of Article L. 145-18 shall be worded as follows: "The same shall apply for the purpose of restoring buildings involving repair, conservation, modernisation or
demolition work which changes the living conditions of a set of buildings so that the premises have to be evacuated. Such work may be decided and carried out in accordance with local regulations either by the public authorities with local jurisdiction or at the initiative of one or more owners who may but need not have form a freeholders' association, in which case the owner or owners shall be specially authorised to do so on terms laid down by the local authorities with jurisdiction, which shall stipulate the commitments which owners must make as to the type and extent of the work. Buildings acquired by developers shall only be assigned by mutual agreement, once they have been restored, in accordance with the type specifications approved by the said authorities."
Article L931-15 In Article L. 145-26, the words"the departments"have been replaced by the words"New Caledonia, the provinces".
Article L931-16 Article L. 145-37 shall be worded as follows: "Article L. 145-37. – The rent for leases on buildings or premises governed by this chapter may be revised at the
request of either party, irrespective of whether or not the lease has been renewed, on the terms for which provision is made in decisions by the authority of New Caledonia with jurisdiction."
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COMMERCIAL CODE Article L931-17
Article L. 145-43 shall be worded as follows: "Article L. 145-43 – Traders or artisans who are tenants of premises on which their business is located and who
have been accepted on a diversification or promotion traineeship in accordance with the provisions of the Employment Code applicable in New Caledonia shall be released from the obligation to run the business during the said traineeship."
Article L931-18 The third sub-paragraph of Article L. 145-47 shall be deleted.
Article L931-19 In Article L. 145-56, the words"and procedural"shall be deleted.
CHAPTER II Provisions Amending Book II Articles L932-6 to
L932-17
Article L932-6 (Order No. 2004-604 of 24 June 2004 Art. 57 III Official Journal of 26 June 2004)
In Articles L. 225-177, L. 225-179 and L. 233-11, the words"the publication date of Act No. 2001-420 of 15 May 2001 relating to the new economic regulations"are replaced by the words"the publication date of Order No. 2004-604 of 24 June 2004 reforming the rules governing transferable securities issued by commercial companies and the extension overseas of the provisions which amended the commercial legislation".
Article L932-7 (Order No. 2004-274 of 25 March 2004 Art. 48 V Official Journal of 27 March 2004)
In Articles L. 223-18, L. 225-36 and L. 225-65, the words"in the same Department or an adjacent Department"are replaced by the words"in New-Caledonia".
Article L932-8 The final sub-paragraph of Article L. 225-43 and of Article L. 225-91 shall be deleted.
Article L932-9 Article 225-67 IV (4) and Article L. 225-77 III (4) shall be deleted.
Article L932-10 Article L. 225-115 (5) shall be worded as follows: "5. Total deductions, as certified by the auditors, from the taxable profit of companies which make payments to
works by bodies of general interest or authorised companies or donations of works of art to the state or to New Caledonia in accordance with the provisions of tax legislation applicable in New Caledonia and the list of registered sponsoring and patronage shares."
Article L932-11 (Order No. 2004-604 of 24 June 2004 Art. 57 III Official Journal of 26 June 2004)
In Articles L. 225-105, L. 225-230 and L. 225-231, the words"or failing this the staff delegates"are inserted after the words"the works council".
Article L932-12 In Articles L. 225-231, L. 232-3, L. 232-4, L. 234-1 and L. 234-2, the words"or, where there is none, the staff
delegates"shall be inserted after the words"works council".
Article L932-13 Article L. 225-239 shall be worded as follows: "Article L. 225-239 – The auditors' fees shall be borne by the company and shall be set as determined by decision
of congress."
Article L932-14 In Article L. 225-270 VI, the words"the provisions of Article 94 A of the General Tax Code"shall be replaced by the
words"the provisions of the tax Code applicable in New Caledonia to net capital gains from disposals for money consideration of securities and corporate rights".
Article L932-15 The final sub-paragraph of Article L. 228-36 shall be deleted.
Article L932-16 In Article L. 233-24, the words"or of Article 97 VII"shall be deleted.
Article L932-17 The second sub-paragraph of Article L. 251-7 shall be deleted.
CHAPTER III Provisions Amending Book III Articles L933-1 to
L933-8
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COMMERCIAL CODE Article L933-1
The second and third sub-paragraphs of Article L. 310-1 shall be deleted.
Article L933-2 The second and third sub-paragraphs of Article L. 310-2 I and II shall be deleted.
Article L933-3 The second sub-paragraph of Article L. 310-3 I shall be deleted.
Article L933-4 Article L. 310-5 (1), (2) and (3) shall be deleted.
Article L933-5 In Article L. 322-1, the words"Article 53 of Law No 91-650 of 9 July 1991 on the reform of enforcement procedures
and Article 945 of the Code of Civil Procedure"shall be replaced by the words"the provisions of civil procedure applicable in New Caledonia to the sale of inherited chattels".
Article L933-6 Article L. 322-11 shall be worded as follows: "Article L. 322-11 – Disputes relating to sales effected in application of local decisions governing voluntary sales,
auctions and wholesale sales of goods by sworn brokers shall be brought before the joint Tribunal de commerce."
Article L933-7 Article L. 322-15 shall be worded as follows: "Article L. 322-15 – Where necessary, it shall be incumbent upon the court or the judge authorising or ordering the
sale pursuant to the preceding Article to appoint a class of public officer other than a sworn broker to proceed therewith."
Article L933-8 Article L. 322-16 shall be worded as follows: "Article L. 322-16 – The provisions of Article L. 322-11 shall apply to the sales referred to in Articles L. 322-14 and
L. 322-15."
CHAPTER V Provisions Amending Book V Articles L935-1 to
L935-9
Article L935-1 In Article L. 511-55, the word"destitution"shall be deleted.
Article L935-2 Article L. 511-60 shall be worded as follows: "Article L. 511-60 – The method of application of the provisions of this sub-section, with the exception of the amount
owed in remuneration to notaries public or sheriff's officers who have filed protests for the various formalities for which they are responsible, shall be determined by decree of the Conseil d'Etat."
Article L935-3 In Article L. 511-61, the words"or the territorial authorities"shall be replaced by the words"the municipalities, the
provinces or New Caledonia".
Article L935-4 The second sub-paragraph of Article L. 511-62 shall read as follows: "The withdrawal shall include the sums referred to in Articles L. 511-45 and L. 511-46, in addition to any brokerage
fees or stamp duty for which provision is made in the tax Code applicable to New Caledonia."
Article L935-5 In Articles L. 523-8 and L. 524-6, the words"Articles 1426 to 1429 of the New Code of Civil Procedure"shall be
replaced by the words"provisions of civil procedure applicable locally to offers of payment and consignations".
Article L935-6 The first sub-paragraph of Article L. 524-19 shall be worded as follows: "The duty to be collected by the clerk of the joint Tribunal de commerce shall be set by decree."
Article L935-7 In the first sub-paragraph of Article L. 525-2, the words"according to regulations in force in New Caledonia"shall be
inserted after the words"the fixed duty".
Article L935-8 In Article L. 525-9 II, the words"the preferential right referred to in Article L. 243-4 of the Social Security Code"shall
be replaced by the words"the preferential right organised for the benefit of the social welfare fund of the territory".
Article L935-9 Article L. 525-18 shall be amended as follows: I. – In no. 1, the reference to decree no. 53-968 of 30 September 1953 shall be replaced by a reference to decree
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COMMERCIAL CODE no. 55-639 of 20 May 1955.
II. – No. 2 shall be worded as follows: "Ocean-going ships and inland waterway boats."
CHAPTER VI Provisions Amending Book VI Articles L936-1 to
L936-13
Article L936-1 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The implementing measures provided for in Articles L621-4, L625-1, L626-3, L626-6, L626-14 and L626-16 are determined by the proper authority in New Caledonia.
Article L936-2 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In the first paragraph of Article L611-1, "the order of the government representative in the region" is replaced by "a decision of the government of New Caledonia".
Article L936-3 For application of Article L612-1, the auditors and their deputies are appointed under, and are subject to, the locally
applicable regulations.
Article L936-4 The third paragraph of Article L612-1 is deleted.
Article L936-5 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L621-2, the words "in each department", are replaced by the words "in New Caledonia".
Article L936-6 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L625-2, the words "referred to in Article L432-7 of the Labour Code" are replaced by the words "in regard to information of a confidential nature provided as such".
Article L936-7 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
For application of Article L622-24, the bodies referred to in Article L351-21 of the Labour Code are the New Caledonian bodies responsible for allocating unemployment benefit and collecting contributions.
Article L936-8 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
For application of Articles L622-24, L622-26, L625-3, L625-4, L626-5 to L626-7, L626-20 and L662-4, the institutions referred to in Article L143-11-4 of the Labour Code are the New Caledonian institutions responsible for implementing the insurance scheme covering the risk of non-payment of wages and salaries in the event of court-ordered receivership or liquidation proceedings.
Article L936-9 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
For application of Articles L626-5 to L626-7, the institutions governed by Book IX of the Social Security Code are the occupational, supplemental or occupational benefits pensions institutions which are linked to the national insurance and welfare schemes and are covered by the provisions applicable in New Caledonia.
Article L936-10
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COMMERCIAL CODE (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L621-72, the reference to Article 28 of decree No. 55-22 of 4 January 1955 reforming real-property advertising is replaced by the reference to the locally applicable provisions relating to the advertising of real-property rights other than liens and mortgages.
Article L936-11 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L642-1, the obligation placed on the court to take account of the provisions of 1, 2, 3 and 4 of Article L331-3 of the Rural Code entails the following:
"Observance of the order of priority established between settlement of young farmers and enlargement of farms, bearing in mind the economic and social interest of maintaining the autonomy of the farm to which the application relates;
When farms are enlarged or combined, to take account of the prospects of settlement on a viable farm, the location of the land concerned in relation to the applicant's or applicants' principal place(s) of business, the area of the property covered by the application and the areas already developed by the applicant(s), and by the sitting tenant;
To take into consideration the personal situation of the applicant(s): age, family and business situation and, if applicable, those of the sitting tenant, as well as the number and nature of the jobs involved;
To take account of the registered plan of the farms concerned, either in relation to the principal place of business or with a view to preventing changes of ownership from compromising developments made with the aid of public funds."
Article L936-12 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
4 of III of Article L643-11 is not applicable.
Article L936-13 (Law No 2003-7 of 3 January 2003 Article 49 (I) Official Gazette of 4 January 2003)
The first paragraph of Article L. 622-2 is supplemented by a sentence worded as follows: "One or more liquidators may be appointed in the same way to assist him."
CHAPTER VIII Provisions Amending Book VIII Article L938-1
Article L938-1 (inserted by Order No. 2004-604 of 24 June 2004 Art. 57 III Official Journal of 26 June 2004)
For application of Articles L. 822-2 to L. 822-7 in New-Caledonia, the terms enumerated below are replaced as follows:
1."regional registration committee"by"territorial registration committee"; 2."regional court of accounts"by"territorial court of accounts"; 3."regional disciplinary committee"by"territorial disciplinary committee".
TITLE IV Provisions applicable in French Polynesia Articles L941-1 to
L940-8
Article L940-1 (Act No. 2003-706 of 1 August 2003 Art. 116 Official Journal of 2 August 2003) (Act No. 2003-710 of 1 August 2003 Art. 38 II Official Journal of 2 August 2003) (Order No. 2004-604 of 24 June 2004 Art. 66 Official Journal of 26 June 2004)
Without prejudice to the adaptations referred to in the following Chapters, the following provisions of the present code are applicable in the territory of French Polynesia:
1. Book I, with the exception of Articles L. 124-1 to L. 126-1, L. 145-34 to L. 145-36, L. 145-38 and L. 145-39; 2. Book II, with the exception of Articles L. 822-1 to L. 822-10, L. 252-1 to L. 252-13; 3. Book III, with the exception of Articles L. 310-4, L. 321-1 to L. 321-38, L. 322-7 and L. 322-10; 4. Book V, with the exception of Articles L. 522-1 to L. 522-40, L. 524-12, L. 524-20 and L. 524-21; 5. Book VI, with the exception of Articles L. 621-38, L. 621-132 and L. 628-1 to L. 628-8. The foregoing provisions are those in force on the publication date of incorporating act No. 2004-192 of 27 February
2004 granting autonomous status to French Polynesia. They may be amended only as provided for in Article 11 of the said incorporating act.
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COMMERCIAL CODE Article L940-2
The terms set out below shall be replaced as follows for the purpose of the application of this Code in French Polynesia:
1. "Tribunal de grande instance"or"Tribunal d'instance"by"court of first instance". 2. "Tribunal de commerce"or"lay commercial judge"by"joint Tribunal de commerce". 3. "Conseil de prud'hommes"by"employment tribunal". 4. "Official Gazette of Civil and Commercial Announcements"by"Official Gazette of French Polynesia". 5. "Department"or"district"by"territory of French Polynesia". 6. "Prefect"or"sub-prefect"by"state representative in the territory".
Article L940-3 References in the provisions of this Code applicable to French Polynesia to other Articles of this Code shall only
refer to the Articles made applicable to French Polynesia with the changes for which provision is made in the following chapters.
Article L940-4 Where no changes are made, references in the provisions of this Code applicable to French Polynesia to provisions
which do not apply to it shall be replaced by references to local provisions which serve the same purpose.
Article L940-5 References in the provisions of this Code applicable to French Polynesia to provisions of the Employment Code
shall only apply there if there is a provision applicable locally which serves the same purpose.
Article L940-6 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
The referrals to provisions of a regulatory nature made by the provisions of the present code which are applicable in French Polynesia are replaced by referrals to deliberations of the competent authority in French Polynesia, without prejudice to the provisions of the following Chapters.
Article L940-7 References to registration in the trades register shall be replaced by references to registration in accordance with
regulations applicable in French Polynesia.
Article L940-8 Articles which refer to the European Community shall apply in accordance with the association decision for which
provision is made in Article 136 of the Treaty establishing the European Community. References to the agreement on the European Economic Area shall not apply.
CHAPTER I Provisions Amending Book I Articles L941-1 to
L941-19
Article L941-1 By way of exception from Article L. 940-6, the reference to provisions of a regulatory nature referred to in Article L.
143-23 shall be maintained with regard to the National Intellectual Property Institute.
Article L941-2 In Article L. 122-1, the words"by the prefect of the department in which the foreigner is to conduct his business"shall
be replaced by the words"by council of ministers of French Polynesia".
Article L941-3 The exemptions for which provision is made in Articles L. 123-25 to L. 123-27 shall apply to natural persons subject
to a simplified taxation system under regulations in force in French Polynesia.
Article L941-4 For the purpose of Article L. 133-6: 1. The words"those which derive from the provisions of Article 1269 of the New Code of Civil Procedure"shall be
replaced by the words"claims for accounts to be revised and proceeds to be settled which are presented with a view to adjustment in the event of error, omission or inaccurate presentation".
2. The provisions of the final sub-paragraph shall apply in the event of transportation effected on behalf of French Polynesia.
Article L941-5 In Article L. 133-7, the words"customs duty, tax, expenses and fines connected with a transport operation"shall be
deleted.
Article L941-6 For the purpose of Articles L. 141-15, L. 143-7, L. 144-1 to L. 144-13 and L. 145-28, a magistrate of the court of first
instance may be delegated by the president.
Article L941-7
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COMMERCIAL CODE In Article L. 141-13, the words"by Articles 638 and 653 of the General Tax Code"shall be replaced by the words"by
the provisions of the tax Code applicable in French Polynesia".
Article L941-8 In Article L. 144-5, the words"Articles L. 3211-2 and L. 3212-1 to L. 3212-12 of the Public Health Code"shall be
replaced by the words"the Articles of the public health Code applicable in the territory to hospitalisation or confinement with or without the consent of the interested party".
Article L941-9 Article L. 144-11 shall be worded as follows: "Article L. 144-11. – If, under local regulations, the real estate management contract contains a sliding scale clause,
a rent review may be demanded in accordance with the terms of a decision of the assembly of French Polynesia, any agreement to the contrary notwithstanding if, when the said clause is applied, the rent rises or falls by more than one quarter in relation to the previous price set in the contract or by law."
Article L941-10 Article L. 144-12 shall be worded as follows: "Article L. 144-12 – If the parties are unable to reach an amicable agreement on the rent review, proceedings shall
be instituted and heard in accordance with the provisions governing price reviews for residential leases on buildings or commercial or industrial leases on premises.
The judge shall take account of all the factors to be assessed and shall adjust the range of the sliding scale to the fair rental value on the day of notification. The new price shall apply as of the said date, unless the parties agree on an earlier or later date before or during the proceedings."
Article L941-11 Article L. 145-2 shall be amended as follows: 1. In no. 4, the words"to the state, departments, municipalities and public establishments"shall be replaced by the
words"to the state, territorial authorities and public establishments". II. In no. 6, the words"to the social security fund of the centre of artists and recognised authors of graphic and
plastic works as defined in Article 71 of Annex II to the General Tax Code"shall be replaced by the words"to the local national insurance fund and recognised authors of graphic and plastic works as defined in the tax Code applicable in the territory".
Article L941-12 For the purpose of Article L. 145-6, the words"evacuation of the premises included in a sector or perimeter for which
provision is made in Articles L. 313-3 and L. 313-4 of the Town Planning Code"shall be replaced by the words"evacuation of the premises for which provision is made in Article L. 145-18".
Article L941-13 In Article L. 145-13, the words"subject to the provisions of the law of 28 May 1943 on the application to foreigners of
legislation governing residential leases and farming leases"shall be deleted.
Article L941-14 The second sub-paragraph of Article L. 145-18 shall be worded as follows: "The same shall apply for the purpose of restoring buildings involving repair, conservation, modernisation or
demolition work which changes the living conditions of a set of buildings so that the premises have to be evacuated. Such work may be decided and carried out in accordance with local regulations either by the public authorities with local jurisdiction or at the initiative of one or more owners who may but need not have form a freeholders' association, in which case the owner or owners shall be specially authorised to do so on terms laid down by the local authorities with jurisdiction, which shall stipulate the commitments which owners must make as to the type and extent of the work. Buildings acquired by developers shall only be assigned by mutual agreement, once they have been restored, in accordance with the type specifications approved by the said authorities."
Article L941-15 In Article L. 145-26, the words"the departments"have been replaced by the words"French Polynesia, the provinces".
Article L941-16 Article L. 145-37 shall be worded as follows: "Article L. 145-37. – The rent for leases on buildings or premises governed by this chapter may be revised at the
request of either party, irrespective of whether or not the lease has been renewed, on the terms for which provision is made in decisions of the assembly of French Polynesia."
Article L941-17 Article L. 145-43 shall be worded as follows: "Article L. 145-43 – Traders or artisans who are tenants of premises on which their business is located and who
have been accepted on a diversification or promotion traineeship in accordance with the provisions of the Employment Code applicable in French Polynesia shall be released from the obligation to run the business during the said traineeship."
Article L941-18
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COMMERCIAL CODE The third sub-paragraph of Article L. 145-47 shall be deleted.
Article L941-19 In Article L. 145-56, the words"and procedural"shall be deleted.
CHAPTER II Provisions Amending Book II Articles L942-1 to
L942-15
Article L942-1 By way of exception from Article L. 940-6, the references to decrees referred to in Articles L. 225-35 and L. 225-68
shall be maintained.
Article L942-2 For the purpose of Book II, auditors and their deputies shall be selected and shall perform their duties in accordance
with regulations in force in French Polynesia.
Article L942-3 Article L. 225-21 III (4) and (5) shall be deleted:
Article L942-4 In Articles L. 225-25 and L. 225-72, the reference to Articles 20 and 21 of Law No 88-1201 of 23 December 1988 on
undertakings for collective investment in transferable securities creating joint private debt funds shall be deleted.
Article L942-5 In Articles L. 225-36 and L. 225-65, the words"in the same department or a neighbouring department"shall be
replaced by the words"in French Polynesia".
Article L942-6 The final sub-paragraph of Article L. 225-43 and of Article L. 225-91 shall be deleted.
Article L942-7 Article 225-67 IV (4) and Article L. 225-77 III (4) shall be deleted.
Article L942-8 Article L. 225-115 (5) shall be worded as follows: "5. Total deductions, as certified by the auditors, from the taxable profit of companies which make payments to
works by bodies of general interest or authorised companies or donations of works of art to the state or to French Polynesia in accordance with the provisions of tax legislation applicable in French Polynesia and the list of registered sponsoring and patronage shares."
Article L942-9 In Article L. 225-230, the words"or, where there is none, the staff delegates"shall be inserted after the words"works
council".
Article L942-10 In Articles L. 225-231, L. 232-3, L. 232-4, L. 234-1 and L. 234-2, the words"or, where there is none, the staff
delegates"shall be inserted after the words"works council".
Article L942-11 The second sub-paragraph of Article L. 225-239 shall be deleted.
Article L942-12 In Article L. 225-270 VI, the words"the provisions of Article 94 A of the General Tax Code"shall be replaced by the
words"the provisions of the tax Code applicable in the territory to net capital gains from disposals for money consideration of securities and corporate rights".
Article L942-13 The final sub-paragraph of Article L. 228-36 shall be deleted.
Article L942-14 In Article L. 233-24, the words"or of Article 97 VII"shall be deleted.
Article L942-15 The second sub-paragraph of Article L. 251-7 shall be deleted.
CHAPTER III Provisions Amending Book III Articles L943-1 to
L943-8
Article L943-1 The second and third sub-paragraphs of Article L. 310-1 shall be deleted.
Article L943-2
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COMMERCIAL CODE The second and third sub-paragraphs of Article L. 310-2 I and II shall be deleted.
Article L943-3 The second sub-paragraph of Article L. 310-3 I shall be deleted.
Article L943-4 Article L. 310-5 (1), (2) and (3) shall be deleted.
Article L943-5 In Article L. 322-1, the words"Article 53 of Law No 91-650 of 9 July 1991 on the reform of enforcement procedures
and Article 945 of the Code of Civil Procedure"shall be replaced by the words"the provisions of civil procedure applicable locally to the sale of inherited chattels".
Article L943-6 Article L. 322-11 shall be worded as follows: "Article L. 322-11 – Disputes relating to sales effected in application of local decisions governing voluntary sales,
auctions and wholesale sales of goods by sworn brokers shall be brought before the joint Tribunal de commerce."
Article L943-7 Article L. 322-15 shall be worded as follows: "Article L. 322-15 – Where necessary, it shall be incumbent upon the court or the judge authorising or ordering the
sale pursuant to the preceding Article to appoint a class of public officer other than a sworn broker to proceed therewith."
Article L943-8 Article L. 322-16 shall be worded as follows: "Article L. 322-16 – The provisions of Article L. 322-11 shall apply to the sales referred to in Articles L. 322-14 and
L. 322-15."
CHAPTER IV Provisions Amending Book IV Articles L945-1 to
L945-9
Article L945-1 By way of exception from Article L. 940-6, the references to provisions of a regulatory nature referred to in Articles
L. 523-14 and L. 524-19 shall be maintained.
Article L945-2 In Article L. 511-55, the work"destitution"shall be deleted
Article L945-3 Article L. 511-60 shall be worded as follows: "Article L. 511-60 – The method of application of the provisions of this sub-section shall be determined by decree of
the territorial authority with jurisdiction."
Article L945-4 In Article L. 511-61, the words"or the territorial authorities"shall be replaced by the words"or the municipalities or
French Polynesia".
Article L945-5 The second sub-paragraph of Article L. 511-62 shall read as follows: "The withdrawal shall include the sums referred to in Articles L. 511-45 and L. 511-46, in addition to any brokerage
fees or stamp duty for which provision is made in the legislation applicable in French Polynesia."
Article L945-6 In Articles L. 523-8 and L. 524-6, the words"Articles 1426 to 1429 of the New Code of Civil Procedure"shall be
replaced by the words"provisions of civil procedure applicable locally to offers of payment and consignations".
Article L945-7 In the first sub-paragraph of Article L. 525-2, the words"according to regulations in force in French Polynesia"shall
be inserted after the words"the fixed duty".
Article L945-8 In Article L. 525-9 II, the words"the preferential right referred to in Article L. 243-4 of the Social Security Code"shall
be replaced by the words"the preferential right organised for the benefit of the social welfare fund of the territory".
Article L945-9 Article L. 525-18 shall be amended as follows: I. – In no. 1, the reference to decree no. 53-968 of 30 September 1953 shall be replaced by a reference to decree
no. 55-639 of 20 May 1955. II. – No. 2 shall be worded as follows: "Ocean-going ships and inland waterway boats."
CHAPTER V
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COMMERCIAL CODE Provisions Amending Book V Articles L946-1 to
L946-13
Article L946-1 By way of exception from Article L. 940-6, the reference to provisions of a regulatory nature referred to in Article L.
621-5 shall be maintained.
Article L946-2 Article L. 611-1 shall be amended as follows: "I – In the first sub-paragraph, the order of the state representative in the region shall be replaced by a decision by
the government of French Polynesia. II – In the fourth sub-paragraph, the words"mainly in application of Articles 5, 48 and 66 of Law No 82-213 of 2
March 1982 (amended) on the rights and liberties of municipalities, departments and regions"shall be deleted.
Article L946-3 For the purpose of Article L. 621-1, auditors and their deputies shall be selected and shall perform their duties in
accordance with local regulations.
Article L946-4 The third sub-paragraph of Article L. 612-1 shall be deleted.
Article L946-5 In Article L. 612-2, the words"or, where there is none, the staff delegates"shall be inserted after the words"the works
council".
Article L946-6 In Article L. 621-5, the words"in each department"shall be replaced by the words"in French Polynesia".
Article L946-7 In Article L. 621-36, the words"referred to in Article L. 432-7 of the Employment Code"shall be replaced by the
words"with respect to information of a confidential nature and data per se".
Article L946-8 For the purpose of Article L. 621-43, the agencies referred to in Article L. 351-21 of the Employment Code shall be
local agencies in charge of the service responsible for paying unemployment benefit and recovering contributions.
Article L946-9 For the purpose of Articles L. 621-43, L. 621-46, L. 621-60, L. 621-78, L. 621-126, L. 621-127 and L. 627-5, the
institutions referred to in Article L. 143-11-4 of the Employment Code shall be local institutions in charge of implementing the insurance system against the risk of non-payment of salaries in the event of an administrative order or court-ordered winding-up.
Article L946-10 For the purpose of Article L. 621-60, the institutions governed by Book IX of the Social Security Code shall be the
local additional or supplementary pension or welfare funds for which provision is made in legislation relating to social security and protection systems in the territory.
Article L946-11 In Article L. 621-72, the reference to Article 28 of decree no. 55-22 of 4 January 1955 reforming real estate publicity
shall be replaced by a reference to local provisions governing the publicity of property rights other than preferential rights and mortgages.
Article L946-12 In Article L. 621-84, the obligation imposed upon the court to take account of the provisions of Article L. 331-7 (1),
(2), (3) and (4) of the Rural Code shall be extended to include the following requirements: "To observe the order of priority established between installing young farmers and extending shares, taking account
of the economic and social benefits of maintaining the independence of the holding to which the application refers. To take account, where shares are extended or merged, of the possibility of installing on a viable holding, the
location of the land in question in relation to the seat of the applicant's or applicants' holding, the surface area of the property to which the application refers and the surface areas already developed by the applicant(s) and by the tenant.
To take account of the applicant's or applicants' personal status (age, marital and professional status) and, where applicable, the personal status of the tenant and the number and type of salaried jobs affected.
To take account of the division of land into plots on the shares in question, either in relation to the seat of the holding or to prevent changes of tenure from affecting improvements obtained with the help of public funds."
Article L946-13 (Law No 2003-7 of 3 January 2003 Article 49 (I) Official Gazette of 4 January 2003)
The first paragraph of Article L. 622-2 is supplemented by a sentence worded as follows: "One or more liquidators may be appointed in the same way to assist him."
TITLE V
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COMMERCIAL CODE Provisions applicable in the islands of Wallis and Futuna Articles L951-1 to
L950-7
Article L950-1 (Act No. 2003-710 of 1 August 2003 Art. 38 II Official Journal of 2 August 2003) (Act No. 2004-130 of 11 February 2004 Art. 53 II 2 Official Journal of 12 February 2004) (Order No. 2004-274 of 25 March 2004 Art. 49 V Official Journal of 27 March 2004) (Act No. 2005-842 of 26 July 2005 Art. 11 III Official Journal of 27 July 2005) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
Without prejudice to the amendments made in the following chapters, the following provisions of the present code are applicable in the Wallis and Futuna Islands:
1 Book I, with the exception of Articles L124-1 to L126-1; 2 Book II, with the exception of Articles L225-245-1, L229-1 to L229-15, L238-6, L244-5 and L252-1 to L252-13; 3 Book III, with the exception of Articles L321-1 to L321-38; 4 Book IV, with the exception of Articles L441-1, L442-1 and L470-6; 5 Book V, with the exception of Articles L522-1 to L522-40, L524-12, L524-20 and L524-21; 6 Book VI, with the exception of Articles L622-19, L625-9, L653-10 and L670-1 to L670-8; 7 Book VII, with the exception of Articles L711-5, L711-9 and L720-1 to L740-3. 8 Book VIII, with the exception of Articles L812-1 to L813-1.
Article L950-2 (Order No. 2004-274 of 25 March 2004 Art. 49 VI Official Journal of 27 March 2004)
For application of the present code in the Wallis and Futuna Islands, the terms enumerated below are replaced as follows:
1."Tribunal de grande instance"or"Tribunal d'instance"by"court of first instance"; 2."Commercial Court"or"justice consulaire"by"court of first instance ruling on commercial matters"; 3."conseil de prud'hommes"by"industrial tribunal"; 4."Bulletin officiel des annonces civiles et commerciales"by"Official Journal of the Territory"; 5."Department"or"arrondissement"by"territory"; 6."prefect"or"sub- prefect"by"government representative in the territory"; 7."mayor"by"constituency leader".
Article L950-3 References in the provisions of this Code applicable to the Wallis and Futuna Islands to other Articles of this Code
shall only refer to the Articles made applicable to the Wallis and Futuna Islands with the changes for which provision is made in the following chapters.
Article L950-4 Where no changes are made, references in the provisions of this Code applicable to the Wallis and Futuna Islands
to provisions which do not apply to it shall be replaced by references to local provisions which serve the same purpose.
Article L950-5 References in the provisions of this Code applicable to the Wallis and Futuna Islands to provisions of the
Employment Code shall only apply there if there is a provision applicable locally which serves the same purpose
Article L950-6 References to registration in the trades register shall be replaced by references to registration in accordance with
regulations applicable in the Wallis and Futuna Islands.
Article L950-7 Articles which refer to the European Community shall apply in accordance with the association decision for which
provision is made in Article 136 of the Treaty establishing the European Community. References to the agreement on the European Economic Area shall not apply.
CHAPTER I Provisions Amending Book I Articles L951-1 to
L951-14
Article L951-1 In Article L. 122-1, the words"by the prefect of the department in which the foreigner is to conduct his business"shall
be replaced by the words"by the state representative in the territory if the foreigner is to conduct his business there".
Article L951-2 The exemptions for which provision is made in Articles L. 123-25 to L. 123-27 shall apply to natural persons subject
to a simplified taxation system under local regulations.
Article L951-3 In Article L. 133-6, the words"those which derive from the provisions of Article 1269 of the New Code of Civil
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COMMERCIAL CODE Procedure"shall be replaced by the words"claims for accounts to be revised and proceeds to be settled which are presented with a view to adjustment in the event of error, omission or inaccurate presentation".
Article L951-4 For the purpose of Articles L. 141-15, L. 143-7, L. 144-1 to L. 144-13 and L. 145-28, a magistrate of the court of first
instance may be delegated by the president.
Article L951-5 In Article L. 141-13, the words"by Articles 638 and 653 of the General Tax Code"shall be replaced by the words"by
the provisions of the tax Code applicable in the territory".
Article L951-6 In Article L. 144-5, the words"Articles L. 3211-2 and L. 3212-1 to L. 3212-12 of the Public Health Code"shall be
replaced by the words"the Articles of the public health Code applicable in the territory to hospitalisation or confinement with or without the consent of the interested party".
Article L951-7 (Law No 2003-7 of 3 January 2003 Article 50 (II) Official Gazette of 4 January 2003)
Article L. 145-2 is modified as follows: I. - In 4, the words:"to the State, to the departments, to the communes, to the public institutions"are replaced with
the words"to the State, to the territorial authorities and to the public institutions"; II. - In 6, the words"to the social security fund of the Maison des Artistes et reconnus auteurs d'œuvres graphiques
et plastiques, as defined in Article 71 of Annex III of the General Tax Code"are replaced with the words"to the local social security fund for the creators of graphic and plastic arts, as defined in the tax code applicable in the territory".
Article L951-8 For the purpose of Article L. 145-6, the words"evacuation of the premises included in a sector or perimeter for which
provision is made in Articles L. 313-3 and L. 313-4 of the Town Planning Code"shall be replaced by the words"evacuation of the premises for which provision is made in Article L. 145-18".
Article L951-9 In Article L. 145-13, the words"subject to the provisions of the law of 28 May 1943 on the application to foreigners of
legislation governing residential leases and farming leases"shall be deleted.
Article L951-10 The second sub-paragraph of Article L. 145-18 shall be worded as follows: "The same shall apply for the purpose of restoring buildings involving repair, conservation, modernisation or
demolition work which changes the living conditions of a set of buildings so that the premises have to be evacuated. Such work may be decided and carried out in accordance with local regulations either by the public authorities with local jurisdiction or at the initiative of one or more owners who may but need not have form a freeholders' association, in which case the owner or owners shall be specially authorised to do so on terms laid down by the state representative, who shall stipulate the commitments which owners must make as to the type and extent of the work. Buildings acquired by developers shall only be assigned by mutual agreement, once they have been restored, in accordance with the type specifications approved by the state representative."
Article L951-11 In Article L. 145-26, the words"the territory"shall be inserted after the words"the state, the departments, the
municipalities".
Article L951-12 (Order No. 2004-604 of 24 June 2004 Art. 58 III Official Journal of 26 June 2004)
The first paragraph of Article L. 145-34 is worded as follows: "Unless the factors referred to in 1 to 4 of Article L. 145-33 change significantly, the variation in the rent applicable
upon renewal of the lease, provided its term does not exceed nine years, shall not exceed the variation in a local quarterly construction cost index for the period since the initial rent for the expired lease was determined. The said index is calculated as determined in an order issued by the government representative. If there is no clause in the contract which stipulates the index's reference quarter, the variation in the local quarterly construction cost index indicated for that purpose in the aforementioned order shall be applied."
Article L951-13 Article L. 145-35 shall be amended as follows: I. – In the first sub-paragraph, the word"departmental"shall be deleted. II. – The final sub-paragraph shall be worded as follows: "The composition of the committee and the method of appointing the members and the rules of procedure thereof
shall be decided by order of the state representative."
Article L951-14 Article L. 145-43 shall be worded as follows: "Article L. 145-43 – Traders or artisans who are tenants of premises on which their business is located and who
have been accepted on a diversification or promotion traineeship in accordance with the provisions of the Employment
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COMMERCIAL CODE Code applicable in the territory shall be released from the obligation to run the business during the said traineeship."
CHAPTER II Provisions Amending Book II Articles L952-1 to
L952-10
Article L952-1 (Order No. 2004-604 of 24 June 2004 Art. 58 III Official Journal of 26 June 2004)
In Articles L. 225-177, L. 225-179 and L. 233-11, the words"the publication date of Act No. 2001-420 of 15 May 2001 relating to the new economic regulations"are replaced by the words"the publication date of Order No. 2004-604 of 24 June 2004 reforming the rules governing transferable securities issued by commercial companies and the extension overseas of the provisions which amended the commercial legislation".
Article L952-2 (Order No. 2004-274 of 25 March 2004 Art. 49 VII Official Journal of 27 March 2004)
In Articles L. 223-18, L. 225-36 and L. 225-65, the words"in the same Department or an adjacent Department"are replaced by the words"in the territory".
Article L952-3 The final sub-paragraph of Article L. 225-43 and of Article L. 225-91 shall be deleted.
Article L952-4 (Order No. 2004-604 of 24 June 2004 Art. 62 II Official Journal of 26 June 2004)
In 5 of Article L. 225-115, the words"payments made pursuant to 1 and 4 of Article 238 bis of the General Tax Code"are replaced by the words"tax deductions under the provisions of the tax code applicable in the territory relative to the total deductions from the taxable profits of companies which make payments for the benefit of works by public-interest bodies or approved societies or which make donations of works of art to the State".
Article L952-5 (Order No. 2004-604 of 24 June 2004 Art. 58 III Official Journal of 26 June 2004)
In Articles L. 225-105, L. 225-230 and L. 225-231, the words"the works council"are replaced by the words"the staff delegates".
Article L952-6 In Articles L. 225-231, L. 232-3, L. 232-4, L. 234-1 and L. 234-2, the words"works council"shall be replaced by the
words"staff delegates".
Article L952-7 In Article L. 225-270 VI, the words"the provisions of Article 94 A of the General Tax Code"shall be replaced by the
words"the provisions of the tax Code applicable in the territory to net capital gains from disposals for money consideration of securities and corporate rights".
Article L952-8 The final sub-paragraph of Article L. 228-36 shall be deleted.
Article L952-9 In Article L. 233-24, the words"or of Article 97 VII"shall be deleted.
Article L952-10 The second sub-paragraph of Article L. 251-7 shall be deleted.
CHAPTER III Provisions Amending Book III Articles L953-1 to
L953-3
Article L953-1 (Order No. 2004-274 of 25 March 2004 Art. 49 VIII Official Journal of 27 March 2004) (Order No. 2004-274 of 25 March 2004 Art. 49 VIII Official Journal of 27 March 2004)
III of Article L. 310-2 and 6 of Article L. 310-5 are deleted.
Article L953-2 (Order No. 2004-274 of 25 March 2004 Art. 49 VIII Official Journal of 27 March 2004) (Order No. 2004-274 of 25 March 2004 Art. 49 VIII Official Journal of 27 March 2004)
In Article L. 322-1, the words"to Article 53 of Act No. 91-650 of 9 July 1991 relating to the reform of the enforcement procedures and Article 945 of the Code of Civil Procedure"are replaced by the words"to the civil provisions applicable in the territory to the sale of personal property deriving from an inheritance".
Article L953-3 (inserted by Order No. 2004-274 of 25 March 2004 Art. 49 VIII Official Journal of 27 March 2004)
The second paragraph of Article L. 322-9 is worded as follows: "They shall comply with the provisions of the tax Code applicable in the territory to public sales and auctions."
Updated 03/20/2006 - Page 303/307
COMMERCIAL CODE CHAPTER IV Provisions Amending Book IV Articles L954-1 to
L954-7
Article L954-1 (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004) (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004)
In the first paragraph of Article L. 430-2, the word"three"is replaced by the word"two". The fourth and fifth paragraphs of the said article are deleted.
Article L954-2 (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004) (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004)
In Article L. 430-3, the last sentence of the first paragraph is deleted. In the third paragraph of that same article, the words", or the total or partial referral of an operation of community-wide dimensions,"are deleted.
Article L954-3 (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004) (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004)
The last paragraph of Article L. 441-2 is replaced by four paragraphs worded as follows: "The cessation of advertising which does not comply with the provisions of paragraph 1 may be ordered by the
investigating judge or by the court to which the proceedings are referred, or at the request of the public prosecutor or as a matter of course. The measure thus taken shall be enforceable notwithstanding any appeal.
The measure may be lifted by the court which ordered it or to which the case is referred. It shall become ineffective if a judgment of nonsuit or acquittal is returned.
Rulings on applications for the lifting of orders may be appealed against before the appeal court. The appeal court shall rule within ten days of receiving the evidence."
Article L954-4 (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004) (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004)
In the second paragraph of Article L. 442-2, the word"any"is inserted before the words"turnover tax".
Article L954-5 (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004) (Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004)
The last paragraph of Article L. 442-3 is replaced by four paragraphs worded as follows: "The cessation of advertising may be ordered by the investigating judge or by the court to which the proceedings
are referred, or at the request of the public prosecutor or as a matter of course. The measure thus taken shall be enforceable notwithstanding any appeal.
The measure may be lifted by the court which ordered it or to which the case is referred. It shall become ineffective if a judgment of nonsuit or acquittal is returned.
Rulings on applications for the lifting of orders may be appealed against before the appeal court. The appeal court shall rule within ten days of receiving the evidence."
Article L954-6 (inserted by Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004)
In Article L. 442-7, the words"or in-house purchasing facility for the benefit of staff"are deleted.
Article L954-7 (inserted by Order No. 2004-823 of 19 August 2004 Art. 3 II 2 Official Journal of 21 August 2004)
Article L. 443-1 is amended as follows: I. - In 1, the words"referred to in Articles L. 326-1 to L. 326-3 of the Rural Code"are replaced by the words"as
provided for in the rural law applicable in the territory"; II. - In 3, the words"in Article 403 of the General Tax Code"are replaced by the words"by the provisions of the Tax
Code applicable in the territory." III. - 4. is worded as follows: "4. Seventy-five days after the date of delivery for purchases of alcoholic beverages subject to consumption duty
under the Tax Code applicable in the territory".
CHAPTER V Provisions Amending Book V Articles L955-1 to
L955-7
Article L955-1 In Article L. 511-61, the words"or the territorial authorities"shall be replaced by the words"or the Wallis and Futuna
Islands".
Article L955-2
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COMMERCIAL CODE The second sub-paragraph of Article L. 511-62 shall read as follows: "The withdrawal shall include the sums referred to in Articles L. 511-45 and L. 511-46, in addition to any brokerage
fees or stamp duty for which provision is made in the legislation applicable in the Wallis and Futuna Islands."
Article L955-3 In Articles L. 523-8 and L. 524-6, the words"Articles 1426 to 1429 of the New Code of Civil Procedure"shall be
replaced by the words"provisions of civil procedure applicable locally to offers of payment and consignations".
Article L955-4 The first sub-paragraph of Article L. 524-19 shall be worded as follows: "The sum in duty to be collected by the clerk of the court of first instance ruling on commercial matters shall be set
by decree."
Article L955-5 In the first sub-paragraph of Article L. 525-2, the words"according to regulations in force in the Wallis and Futuna
Islands"shall be inserted after the words"the fixed duty".
Article L955-6 In Article L. 525-9 II, the words"the preferential right referred to in Article L. 243-4 of the Social Security Code"shall
be replaced by the words"the preferential right organised for the benefit of the social welfare fund of the territory".
Article L955-7 Article L. 525-18 shall be amended as follows: I. – In no. 1, the reference to decree no. 53-968 of 30 September 1953 shall be replaced by a reference to decree
no. 55-639 of 20 May 1955. II. – No. 2 shall be worded as follows: "Ocean-going ships and inland waterway boats."
CHAPTER VI Provisions Amending Book VI Articles L956-1 to
L956-9
Article L956-1 (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The implementing measures provided for in Articles L625-1, L626-3, L626-5 to L626-7, L626-14 and L626-16 are determined by the territorial assembly.
Article L956-2 (Act No. 2005-845 of 26 July 2005 Art. 195 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L625-2, the words "referred to in Article L432-7 of the Labour Code" are replaced by the words "in regard to information of a confidential nature provided as such".
Article L956-3 (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
For application of Article L622-24, the bodies referred to in Article L351-21 of the Labour Code are the local bodies responsible for allocating unemployment benefit and collection of contributions.
Article L956-4 (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
For application of Articles L622-24, L622-26, L625-3, L625-4, L626-5 to L626-7, L626-20 and L662-4, the institutions referred to in Article L143-11-4 of the Labour Code are the local institutions responsible for implementing the insurance scheme covering the risk of non-payment of wages and salaries in the event of court-ordered receivership or liquidation proceedings.
Article L956-5 (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
For application of Articles L626-5 to L626-7, the institutions governed by Book IX of the Social Security Code are
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COMMERCIAL CODE the local occupational, supplemental or occupational benefits pensions institutions which are linked to the national insurance and welfare schemes and are covered by the provisions applicable in the Wallis and Futuna Islands.
Article L956-6 (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L626-14, the reference to Article 28 of decree No. 55-22 of 4 January 1955 reforming real-property advertising is replaced by the reference to the provisions applicable in the territory relating to the advertising of real-property rights other than liens and mortgages.
Article L956-7 (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
In Article L642-2, the obligation placed on the court to take account of the provisions of 1, 2, 3 and 4 of Article L331-3 of the Rural Code entails the following:
"Observance of the order of priority established between settlement of young farmers and enlargement of farms, bearing in mind the economic and social interest of maintaining the autonomy of the farm to which the application relates;
When farms are enlarged or combined, to take account of the prospects of settlement on a viable farm, the location of the land concerned in relation to the applicant's or applicants' principal place(s) of business, the area of the property covered by the application and the areas already developed by the applicant(s), and by the sitting tenant;
To take into consideration the personal situation of the applicant(s): age, family and business situation and, if applicable, those of the sitting tenant, as well as the number and nature of the jobs involved;
To take account of the registered plan of the farms concerned, either in relation to the principal place of business or with a view to preventing changes of ownership from compromising developments made with the aid of public funds."
Article L956-8 (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
The following sentence is inserted after the first sentence of the first paragraph of II of Article L641-1: "He may likewise be assisted by one or more liquidators."
Article L956-9 (Act No. 2003-7 of 3 January 2003 Art. 49 III Official Journal of 4 January 2003) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190) (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
4 of III of Article L643-11 is not applicable.
CHAPTER VII Provisions Amending Book VII Articles L957-1 to
L957-3
Article L957-1 In Articles L. 711-2 and 711-4, the word"government"shall be replaced by the words"state representative in the
territory".
Article L957-2 In the third sub-paragraph of Article L. 711-6, the words"or the municipality"shall be replaced by the words"or the
territory".
Article L957-3 In Article L. 712-1, the words"by means of a tax in addition to the business tax"shall be replaced by the words"as set
out in the tax Code applicable in the Wallis and Futuna Islands".
CHAPTER VIII Provisions Amending Book VIII Articles L958-1 to
L958-2
Article L958-1 (Act No. 2005-845 of 26 July 2005 Art. 196 II Official Journal of 27 July 2005 effective 1 January 2006 without prejudice to Art. 190)
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COMMERCIAL CODE Articles L814-1 to L814-5 are applicable insofar as they concern court-appointed administrators.
Article L958-2 (inserted by Order No. 2004-604 of 24 June 2004 Art. 58 III Official Journal of 26 June 2004)
For application of Articles L. 822-2 to L. 822-7 in the Wallis and Futuna Islands, the terms enumerated below are replaced as follows:
1."regional registration committee"by"territorial registration committee"; 2."regional court of accounts"by"territorial court of accounts of New-Caledonia"; 3."regional disciplinary committee"by"territorial disciplinary committee".
Updated 03/20/2006 - Page 307/307
CÓDIGO DE COMERCIO
CÓDIGO DE COMERCIO
Con el concurso de las personas siguientes: Prof. Michel MENJUCQ, Catedrático de la Universidad de París I ; Clara Fernández Carron. Profesor Ayudante de Derecho Procesal en la Facultad de Derecho de la Universidad Complutense de Madrid
LIBRO I DEL COMERCIO EN GENERAL Artículos L110-1 a
L146-4 TITULO I DEL ACTO DE COMERCIO Artículos L110-1 a
L110-4
Artículo L110-1 La Ley considerará actos de comercio: 1° Toda compra de bienes muebles para la reventa, bien en su estado original, bien tras haberlos modificado y
adaptado por medio de un trabajo realizado sobre ellos; 2° Toda compra de bienes inmuebles para revenderlos, a menos que el comprador haya actuado con la intención
de edificar uno o varios edificios y venderlos en conjunto o por locales; 3° Toda operación de intermediación para la compra, la suscripción o la venta de inmuebles, de fondos de
comercio, de acciones o partes de acciones o participaciones de sociedades inmobiliarias; 4° Toda empresa de alquiler de bienes muebles; 5° Toda empresa de manufacturas, de comisión, de transporte por tierra o por agua; 6° Toda empresa de suministros, de representaciones, oficinas de negocios, establecimientos de venta por
subasta, de espectáculos públicos; 7° Toda operación cambiaria, bancaria, de corretaje; 8° Todas las operaciones de establecimientos bancarios públicos; 9° Todas las obligaciones entre tratantes, comerciantes y banqueros; 10° Toda negociación sobre letras de cambio.
Artículo L110-2 La ley considerará igualmente actos de comercio: 1° Toda empresa de construcción, de compraventa y de reventa de embarcaciones para la navegación interior y
exterior; 2° Todas las expediciones marítimas; 3° Toda compra o venta de aparejos, accesorios y avituallamiento para una embarcación; 4° Todo contrato de transporte marítimo y fletamento de una nave, suscripción o concesión de un préstamo a la
gruesa; 5° Todo tipo de pólizas de seguros y otros contratos relativos al comercio marítimo; 6° Todo acuerdo y convenio en cuanto a la contratación y a la retribución de las tripulaciones; 7° Todo contrato de enrolamiento para el servicio de los buques mercantes.
Artículo L110-3 Con respecto a los comerciantes, los actos de comercio podrán probarse por cualquier medio a menos que la Ley
disponga de otro modo.
Artículo L110-4 I. - Las obligaciones contraídas con ocasión del acto de comercio entre comerciantes, o entre comerciantes y no
comerciantes, prescribirán a los diez años si no están sometidas a prescripciones especiales de menor duración. II. - Toda acción de pago prescribirá: 1° Si se trata de provisión de alimentos para los marineros hecha por orden del capitán, un año después de su
entrega; 2° Si es para aprovisionamiento de materiales y otros productos necesarios para la construcción, el equipamiento y
el avituallamiento del barco, un año después de realizado el suministro; 3° Si se trata de obras realizadas, un año después de la recepción de éstas. III. - Las acciones iniciadas para obtener el pago de los salarios de los oficiales, marineros y otros miembros de la
tripulación prescribirán a los cinco años según lo dispuesto en el artículo 2277 del Código Civil.
TITULO II DE LOS COMERCIANTES Artículos L121-1 a
L128-6
CAPITULO I
Fecha de actualización 20/03/2006 - Page 1/317
CÓDIGO DE COMERCIO De la definición y del estatuto Artículos L121-1 a
L121-3
Sección I De la condición de comerciante Artículos L121-1 a
L121-3
Artículo L121-1 Serán considerados comerciantes aquellos que ejerzan actos de comercio y que hagan de ellos su profesión
habitual.
Artículo L121-2 El menor de edad, aunque estuviera emancipado, no podrá ser comerciante.
Artículo L121-3 El cónyuge de un comerciante no podrá ser considerado en sí mismo comerciante si no ejerce una actividad
comercial separada de la de su cónyuge.
Sección II De los cónyuges de artesanos y comerciantes que trabajan en la empresa
familiar
CAPITULO II De los comerciantes extranjeros Artículos L122-1 a
L122-4
Artículo L122-1 (Disposición nº 2004-279 de 25 de marzo de 2004 Artículo 1 1º Diario Oficial de 27 de marzo de 2004)
Ningún extranjero podrá ejercer en el territorio francés una profesión comercial, industrial o artesanal en condiciones que exijan su inscripción o su anotación en el Registro de Comercio y de Sociedades o en el Registro central de artesanos sin haber sido previamente autorizado por el Prefecto del departamento en el pretende ejercer por primera vez su actividad.
Artículo L122-2 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Toda infracción a las prescripciones del artículo L. 122-1 y a las del decreto de aplicación previsto en el artículo L. 122-4 será castigada con una pena de prisión de seis meses y una multa de 3750 euros. En caso de reincidencia las penas serán aumentadas al doble. El Tribunal podrá ordenar además el cierre del establecimiento
Artículo L122-3 (Disposición nº 2004-279 de 25 de marzo de 2004 Artículo 1 1º Diario Oficial de 27 de marzo de 2004)
I. - Las disposiciones de los artículos L. 122-1 y L. 122-2 no serán aplicables a los ciudadanos de un Estado miembro de la Comunidad Europea, de un Estado parte en el Acuerdo sobre el Espacio Económico Europeo o de un Estado miembro de la Organización de Cooperación y de Desarrollo Económicos, que ejerza por cuenta propia o por cuenta de otro ciudadano de uno de estos Estados, o bien de una sociedad constituida de conformidad con la legislación de uno de estos Estados y que tenga su sede estatutaria, su administración central o su principal establecimiento en uno de estos Estados.
II. - Sin embargo, cuando un extranjero o una sociedad de los mencionados en el punto I crea una agencia, una sucursal o una filial en el territorio de la República Francesa o presta sus servicios en ella, no se otorgará el beneficio del I salvo que:
1° El extranjero esté establecido en el territorio de un Estado miembro de la Comunidad Europea, de un Estado parte en el Acuerdo sobre el Espacio Económico Europeo o de un Estado miembro de la Organización de Cooperación y de Desarrollo Económicos;
2° La sociedad que solamente tenga su sede estatutaria en el interior de la Comunidad Europea o de un Estado parte en el Acuerdo sobre el Espacio Económico Europeo o de un Estado miembro de la Organización de Cooperación y de Desarrollo Económicos, y que ejerza una actividad que presente un vínculo efectivo y continuo con la economía de uno de estos Estados.
Artículo L122-4 Las condiciones de aplicación del presente capítulo serán determinadas por un decreto adoptado en Conseil d'Etat.
CAPITULO III De las obligaciones generales de los comerciantes Artículos L123-1 a
L123-28
Sección I
Fecha de actualización 20/03/2006 - Page 2/317
CÓDIGO DE COMERCIO Del Registro de Comercio y de Sociedades Artículos L123-1 a
L123-11
Subsección 1 De las personas obligadas a inscribirse Artículos L123-1 a
L123-5-1
Artículo L123-1 I. - Existe un Registro de Comercio y de Sociedades en el que se inscribirán, de acuerdo a su declaración: 1° Las personas físicas consideradas como comerciantes, aunque estén obligadas también a su inscripción en el
Registro central de artesanos; 2° Las sociedades y agrupaciones de interés económico cuya sede se encuentre en un departamento francés y
que gocen de personalidad jurídica en conformidad con el artículo 1842 del Código Civil o con el artículo L. 251-4; 3° Las sociedades mercantiles cuya sede principal se encuentre fuera de cualquier departamento francés pero
tengan un establecimiento en uno de ellos; 4° Los establecimientos públicos franceses de carácter industrial o comercial; 5° Las demás personas jurídicas cuya inscripción esté prevista por las disposiciones legislativas o reglamentarias; 6° Las representaciones o agencias comerciales de los Estados, entidades o establecimientos públicos extranjeros
establecidos en un departamento francés. II. - En el Registro figurarán, para su conocimiento público, las inscripciones, actas o documentaciones
depositadas, previstas por decreto adoptado en Conseil d'Etat.
Artículo L123-2 Nadie podrá inscribirse en el Registro si no cumple las condiciones necesarias para el ejercicio de su actividad. Las
personas jurídicas deberán además haber cumplido los requisitos formales correspondientes exigidos por la legislación y la reglamentación vigentes.
Artículo L123-3 Si una persona física no solicitara su inscripción en el plazo prescrito, el Juez competente dictará resolución de
requerimiento para que solicite dicha inscripción, de oficio, o bien a petición del Fiscal de la República o de cualquier otra persona que justifique su interés en ello.
En las mismas condiciones, el Juez competente podrá requerir a toda persona inscrita en el Registro de Comercio y de Sociedades para que realice las anotaciones complementarias o las rectificaciones que debiera haber hecho en los plazos prescritos, para que efectúe las anotaciones o rectificaciones necesarias en caso de declaraciones inexactas o incompletas, o para que se dé de baja en el Registro.
El Secretario de una jurisdicción que ordenara la obligatoriedad de la inscripción de una persona deberá notificar esta decisión a la secretaría del Tribunal de commerce en cuya circunscripción el interesado tenga la sede de su empresa o su establecimiento principal. El secretario del Tribunal de commerce destinatario de la decisión lo someterá al Juez encargado de la supervisión del Registro.
Artículo L123-4 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Toda persona obligada a solicitar su inscripción, una anotación complementaria o de rectificación, o su baja en el Registro de Comercio y de Sociedades, y que no se someta, sin una excusa considerada válida al requerimiento de cumplir uno de estos requisitos formales, en los quince días siguientes a la fecha en la que la resolución del Juez adscrito a la supervisión del Registro sea definitiva, será sancionada con una multa de 3.750 euros.
El Tribunal podrá además privar al interesado, durante un tiempo que no excederá de los cinco años, del derecho de voto y de elegibilidad en las elecciones de los Tribunaux de commerce, de las Cámaras de Comercio e Industria y de la Cour des comptes.
El Tribunal ordenará que se realicen en un determinado plazo la inscripción, las anotaciones o la baja que deban figurar en el Registro, a petición del interesado.
Artículo L123-5 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con seis meses de prisión y 4.500 euros de multa el que, de mala fe, proporcionara indicaciones inexactas o incompletas en una inscripción, una baja o una anotación complementaria o de rectificación al Registro de Comercio y de Sociedades.
Las disposiciones del segundo y tercer apartado del artículo L. 123-4 serán también aplicables en los casos previstos en el presente artículo.
Artículo L123-5-1 (Introducido por la Ley nº 2001-420 de 1 de agosto de 2001 Artículo 123 II Diario Oficial de 16 de mayo de 2001)
A petición de cualquier interesado o del Ministerio Público, el presidente del Tribunal, por resolución en forma sumaria, podrá requerir al dirigente de cualquier entidad con personalidad jurídica, bajo pena de multa, para que
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CÓDIGO DE COMERCIO proceda al depósito de los documentos y actas en el Registro de Comercio y de Sociedades en el que esté obligado a hacerlo por las disposiciones legislativas o reglamentarias.
El presidente podrá, en las mismas condiciones y con la misma finalidad, designar un mandatario para que efectúe dichas formalidades.
Subsección 2 Teneduría de los libros del Registro y los efectos vinculados a la
inscripción Artículos L123-6 a L123-9-1
Artículo L123-6 El Registro de Comercio y de Sociedades será llevado por el Secretario de cada Tribunal de commerce, bajo la
supervisión del presidente o de un Juez encargado de esta cuestión, los cuales serán competentes para resolver cualquier litigio que pudiera surgir entre el sujeto obligado y la Secretaría.
Artículo L123-7 La inscripción de una persona física conllevará la presunción de su condición de comerciante. Sin embargo, esta
presunción no será oponible frente a terceros y administraciones públicas que aporten la prueba en contrario. Los terceros y administraciones públicas no podrán prevalerse en dicha presunción si ya tenían conocimiento de que la persona inscrita no era comerciante.
Artículo L123-8 La persona obligada a realizar la inscripción que no la haya solicitado tras la expiración del plazo de quince días a
contar desde el inicio de su actividad, no podrá prevalerse, hasta efectuarla, de la condición de comerciante, tanto frente a terceros como frente a las administraciones públicas. Sin embargo no podrá invocar el no estar inscrito en el Registro para sustraerse a las responsabilidades y a las obligaciones inherentes a esta inscripción.
Sin perjuicio de la aplicación del artículo 144-7, el comerciante inscrito que traspase su fondo de comercio o que ceda su explotación, en particular bajo la forma de arrendamiento de negocio, no podrá hacer valer el cese de su actividad comercial, para sustraerse a las acciones de responsabilidad civil de las que sea objeto, por el hecho de las obligaciones contraídas por su sucesor en la explotación del fondo de comercio, hasta el día en que haya realizado la tramitación de su baja en la actividad o la anotación correspondiente.
Artículo L123-9 La persona obligada realizar la inscripción, no podrá oponer en el ejercicio de su actividad, frente a terceros o
administraciones públicas, los hechos y actos cuya anotación sea obligatoria hasta que éstos hayan sido publicados en el Registro, sin embargo sí podrán alegarlos los terceros o las administraciones públicas en cuestión.
Además, la persona obligada al depósito de actas o documentos en anexo en el Registro, sólo podrá oponerlos frente a terceros o administraciones públicas cuando esta formalidad haya sido efectuada. Sin embargo, los terceros o las administraciones públicas sí podrán prevalerse de dichas actas, de dichos documentos.
Las disposiciones de los párrafos anteriores serán aplicables a los hechos o actos cuya anotación o depósito sea obligatoria, aun cuando hayan sido objeto de cualquier otra publicidad legal. Sin embargo no podrán ser alegados por terceros y administraciones que tuvieran conocimiento de estos hechos o actos.
Artículo L123-9-1 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2001 Artículo 2 II Diario Oficial de 5 de agosto de 2003)
El secretario del Tribunal o del organismo mencionado en el último párrafo del artículo 2 de la Ley n° 126 de 11 de febrero de 1994 relativa a la iniciativa y a la empresa individual entregará un recibo de presentación de solicitud de creación de empresa a toda persona que esté sujeta a la inscripción en el registro, tan pronto como esta última haya presentado una solicitud de inscripción completa. Dicho recibo permitirá que se realicen, bajo la responsabilidad personal de la persona física que tenga la condición de comerciante o actúe en nombre de la sociedad en fase de constitución, las gestiones necesarias ante los organismos públicos y los organismos privados encargados de una misión de servicio público. Dicho recibo incluirá la mención: "Pendiente de inscripción en el Registro".
Las condiciones de aplicación del presente artículo serán definidas por decreto adoptado en Conseil d'Etat.
Subsección 3 Domiciliación de las personas inscritas Artículos L123-10 a
L123-11
Artículo L123-10 (Ley nº 2003-721 de 1 de agosto de 2003 Artículo 6 I 1°Diario Oficial de 5 de agosto de 2003)
Las personas físicas que soliciten su inscripción en el Registro de Comercio y de Sociedades o en el Registro Central de Artesanos deberán declarar la dirección de su empresa y acreditar su uso y disfrute.
Las personas físicas podrán declarar la dirección de su vivienda y ejercer en ésta su actividad, salvo disposición legislativa o estipulación contractual en contrario.
Cuando no dispusieran de un establecimiento, las personas físicas podrán declarar a título exclusivo de dirección de empresa la dirección de su local de vivienda. De esta declaración no podrán derivarse ni el cambio de de destino del inmueble, ni la aplicación del estatuto de arrendamientos comerciales.
Nota: Ley n° 2003-721 de 1 de agosto de 2003 art. 6 II: Estas disposiciones serán aplicables a las empresas inscritas en el Registro de Comercio y de Sociedades o en el Registro Central de Artesanos en la fecha de
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CÓDIGO DE COMERCIO promulgación de la Ley nº 2003-721 de 1 de agosto de 2003.
Artículo L123-11 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2001 Artículo 6 I 2° Diario Oficial de 5 de agosto de 2003)
Toda persona jurídica que solicite su inscripción en el Registro de Comercio y de Sociedades deberá presentar el justificante del disfrute del o de los locales en que instala, sola o con otros, la sede de la empresa, o, cuando ésta se encuentre en el extranjero, de la agencia, de la sucursal o de la representación establecida en territorio francés.
Se autorizará la domiciliación de una empresa en locales ocupados en común por varias empresas en las condiciones determinadas por decreto adoptado en Conseil d'Etat. Este decreto precisará, además, los equipamientos o servicios requeridos para acreditar la realidad de la sede de la empresa domiciliada.
Nota: Ley n° 2003-721 de 1 de agosto de 2003 art. 6 II: Estas disposiciones serán aplicables a las empresas inscritas en el Registro de Comercio y de Sociedades o en el Registro Central de Artesanos en la fecha de promulgación de la Ley nº 2003-721 de 1 de agosto de 2003.
Sección II De la contabilidad de los comerciantes Artículos L123-12 a
L123-28
Subsección 1 De las obligaciones contables aplicables a todos los comerciantes Artículos L123-12 a
L123-24
Artículo L123-12 Toda persona física o jurídica que posea la calidad de comerciante deberá proceder al registro contable de los
movimientos correspondientes al patrimonio de su empresa. Estos movimientos serán registrados en su orden cronológico.
Deberá controlar por medio de un inventario, al menos una vez cada doce meses, la existencia y el valor de los elementos activos y pasivos del patrimonio de su empresa.
Tendrá que realizar las cuentas anuales al cierre del ejercicio según sus registros contables y el inventario. Estas cuentas anuales incluirán el balance, la cuenta de resultados y un anexo explicativo, formando todos ellos un todo indisociable.
Artículo L123-13 El balance presentará separadamente los elementos activos y pasivos de la empresa, y distinguirá de manera
diferenciada los fondos propios. La cuenta de resultados recapitulará los ingresos y los gastos del ejercicio, sin tener en cuenta su fecha de cobro o
de pago. Presentará el beneficio o la pérdida obtenido en el ejercicio tras la deducción de las amortizaciones y de las provisiones. Los ingresos y los gastos, clasificados por categorías, deberán presentarse bien en forma de cuadro, bien en forma de lista.
El importe de los compromisos asumidos por la empresa en materia de cargas sociales como pensiones, complementos de jubilación, indemnizaciones y ayudas por jubilación o ventajas similares de los miembros o socios de su personal y de sus mandatarios sociales se indicará en el anexo explicativo. Por otra parte, las empresas podrán decidir la inclusión en el balance, en el apartado de provisiones, de la totalidad o de una parte de estas cargas.
El anexo explicativo completará y comentará la información dada por el balance y la cuenta de resultados.
Artículo L123-14 Las cuentas anuales serán regulares, verdaderas y darán una imagen fidedigna del patrimonio, de la situación
financiera y de los resultados de la empresa. Cuando la aplicación de un asiento contable no baste para dar la imagen fidedigna a la que se refiere este artículo,
deberán suministrarse informaciones complementarias en el anexo explicativo. Si, excepcionalmente, la aplicación de un asiento contable no resultara adecuado para dar una imagen fidedigna
del patrimonio, de la situación financiera o del resultado, deberá ser eliminado. Esta eliminación tendrá que ser mencionada en el anexo explicativo y ser debidamente justificada, con las indicaciones correspondientes sobre su influencia en el patrimonio, la situación financiera y los resultados de la empresa.
Artículo L123-15 El balance, la cuenta de resultados y el anexo explicativo deberán incluir tantas rúbricas y partidas como sean
necesarias para dar una imagen fidedigna del patrimonio, de la situación financiera y de los resultados de la empresa. Cada una de las partidas del balance y de la cuenta de resultados incluirá la indicación de la cifra relativa a la partida correspondiente del ejercicio anterior.
Se determinará por decreto la clasificación de los elementos del balance y de la cuenta de resultados, los elementos que componen los fondos propios, así como las anotaciones que se deberán incluir en el anexo explicativo.
Artículo L123-16 Los comerciantes, personas físicas o jurídicas, podrán, en condiciones determinadas por decreto, elegir una
presentación simplificada de sus cuentas anuales cuando al cierre del ejercicio no sobrepasen las cifras definidas por el decreto en dos de los criterios siguientes: el total de su balance, el importe neto de su volumen de negocios o el número medio de personas empleadas permanentemente a lo largo del ejercicio. Perderán esta facultad cuando no se
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CÓDIGO DE COMERCIO cumpla esta condición durante dos ejercicios sucesivos.
Artículo L123-17 A menos que se produzca un cambio excepcional en la situación del comerciante, persona física o jurídica, la
presentación de cuentas anuales como método de evaluación seleccionado no podrá ser modificado de un ejercicio a otro. Si se produjeran modificaciones, deberán ser descritas y justificadas en el anexo explicativo.
Artículo L123-18 Los bienes adquiridos a título oneroso se registrarán en su fecha de entrada en el patrimonio de la empresa, por su
precio de adquisición, los bienes adquiridos gratuitamente, por su valor venal y los bienes producidos, por su coste de producción.
En cuanto a la declaración del activo inmovilizado en el registro de los elementos, deberán tenerse en cuenta, si procede, los planes de amortización. Si el valor de un elemento del activo llegara a ser inferior a su valor neto contable, este último será modificado para que tenga el valor de inventario de la fecha de cierre del ejercicio, tanto si la depreciación fuera definitiva o no.
Los bienes fungibles serán valorados bien por su coste medio ponderado de adquisición o de producción, bien considerando que el primer bien salido es el primer bien entrado.
La plusvalía constatada entre el valor de inventario de un bien y su valor de entrada no será contabilizada. Si se procediera a una revaloración del conjunto de las inmovilizaciones corporales y financieras, la diferencia de revaloración entre el valor actual y el valor neto contable no podrá utilizarse para compensar las pérdidas sino que deberá inscribirse de modo diferenciado en el pasivo del balance.
Artículo L123-19 Los elementos del activo y del pasivo deberán ser valorados por separado. No se podrá efectuar ninguna compensación entre las partidas del activo y del pasivo del balance o entre las
partidas de ingresos y gastos de la cuenta de resultados. El balance de apertura de un ejercicio deberá corresponderse con el balance de cierre del ejercicio anterior.
Artículo L123-20 Las cuentas anuales deberán respetar el principio de prudencia valorativa. Para su fondo de comercio, el
comerciante, persona física o jurídica, presupondrá que la empresa proseguirá sus actividades. Incluso en caso de ausencia o insuficiencia de beneficios, se deberá proceder a las amortizaciones y provisiones
necesarias. Se tendrán que tener en cuenta los riesgos y pérdidas producidos en el curso del ejercicio o de un ejercicio
anterior, incluso aunque sean conocidos entre la fecha de cierre del ejercicio y la de la realización de las cuentas.
Artículo L123-21 Sólo se podrán incluir en las cuentas anuales los beneficios realizados en la fecha de cierre de un ejercicio. Podrá
ser incluido, tras el inventario, el beneficio realizado en una operación parcialmente ejecutada y aceptada por el cocontratante siempre y cuando su realización sea segura y sea posible evaluar con seguridad suficiente el beneficio global de la operación por medio de documentos contables de previsión.
Artículo L123-22 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Los documentos contables deberán establecerse en euros y estar redactados en lengua francesa. Los documentos contables y los documentos justificantes deberán conservarse durante diez años. Los documentos contables relativos al registro de las operaciones y al inventario deberán realizarse y mantenerse
sin espacios en blanco ni alteraciones de ningún tipo, en las condiciones determinadas por decreto adoptado en Conseil d'Etat.
Artículo L123-23 La contabilidad llevada debidamente podrá ser admitida como prueba en juicio entre comerciantes para hechos de
comercio. Si ésta ha sido llevada de modo irregular, su autor no podrá invocarla en su propio beneficio. No se podrá ordenar judicialmente la presentación de los documentos contables salvo en los casos de sucesión,
comunidad de bienes, división de sociedad y en los casos de procedimientos de suspensión de pagos o de liquidación judiciales.
Artículo L123-24 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Todo comerciante estará obligado a abrirse una cuenta en un establecimiento de crédito o en una Oficina de cheques postales.
Subsección 2 De las obligaciones contables aplicables a algunos comerciantes,
personas físicas Artículos L123-25 a L123-28
Artículo L123-25 Por excepción a lo dispuesto en los apartados primero y tercero del artículo L. 123-12, las personas físicas que se
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CÓDIGO DE COMERCIO acogieran, por elección o por pleno derecho, al régimen impositivo real simplificado, no están obligadas a registrar los créditos y las deudas hasta el cierre del ejercicio ni a presentar el anexo explicativo.
Artículo L123-26 Por excepción a lo dispuesto en el segundo párrafo del artículo L. 123-13, las personas físicas acogidas al régimen
impositivo real simplificado, por propia elección o de pleno derecho, podrán inscribir en la cuenta de resultados, en función de su fecha de pago, los gastos cuya periodicidad no exceda de un año, con exclusión de las compras.
Artículo L123-27 Por excepción a lo dispuesto en el tercer párrafo del artículo L. 123-18, las personas físicas acogidas al régimen
impositivo real simplificado, por propia elección o de pleno derecho, podrán proceder a una valoración simplificada de los stocks y de las producciones en curso, según un método determinado por decreto.
Artículo L123-28 Por excepción a lo dispuesto en los artículos L. 123-12 a L. 123-23, las personas físicas sometidas al régimen
impositivo de las micro-empresas no están obligadas a realizar cuentas anuales. Deberán registrar día a día las facturas cobradas y los gastos pagados, realizar un extracto al final del ejercicio de las facturas cobradas y de los gastos pagados, de las deudas financieras, de los inmovilizados y de los stocks, valorados de manera simplificada, en las condiciones determinadas por decreto.
Sin embargo, cuando el volumen de negocios anual no exceda de un importe de 18.293,88 euros, las personas físicas inscritas en el Registro de Comercio y de Sociedades, podrán llevar únicamente un libro en el que anotarán cronológicamente el importe y el origen de las facturas que perciben en concepto del ejercicio de su actividad profesional. Las condiciones en las que debe llevarse este libro serán determinadas por un decreto.
CAPITULO IV De las sociedades cooperativas de comerciantes minoristas Artículos L124-1 a
L124-16
Artículo L124-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 64 I, II y III Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 1 Diario Oficial de 27 de marzo de 2004)
Las sociedades cooperativas de comerciantes minoristas tendrán la finalidad de mejorar por medio del esfuerzo común de sus socios las condiciones en las que éstos ejercieran su actividad comercial. En especial, podrán ejercer a este efecto, directa o indirectamente por cuenta de sus socios, las actividades siguientes:
1° Suministrar en todo o en parte a sus socios el género, las mercancías o los servicios, el equipamiento y el material necesarios para el ejercicio de su comercio, en particular por medio de la constitución y el mantenimiento de todo stock de mercancías, la construcción, la adquisición o el alquiler, así como la gestión de los depósitos y almacenes particulares, la realización en sus establecimientos o en los de sus socios, de todas las operaciones, transformaciones y modernizaciones útiles;
2° Reagrupar en un mismo recinto los comercios que pertenezcan a sus socios, crear y gestionar todos los servicios comunes a la explotación de estos comercios, construir, comprar o alquilar los inmuebles necesarios para su actividad o para la de sus socios, asegurar la gestión de los mismos, todo ello en las condiciones previstas por el capítulo V del presente título;
3° Facilitar el acceso de los socios y de su clientela a los diferentes medios de financiación y crédito, en el marco de las disposiciones legislativas correspondientes a las actividades financieras;
4° Ejercer las actividades complementarias a las enunciadas anteriormente, y especialmente proporcionar asistencia a sus socios en materia de gestión técnica, financiera y contable;
5° Comprar fondos de comercio y conceder su arrendamiento y gerencia en el plazo de dos meses a un socio, por excepción a lo dispuesto en el artículo L. 144-3, el cuál deberá restituirlo en el plazo máximo de siete años, bajo pena de las sanciones previstas en el segundo y tercer apartado del artículo L. 124-15;
6° Definir y poner en marcha una política comercial común que asegure el desarrollo y la actividad de sus socios, y especialmente:
- mediante la creación de una organización jurídica adecuada; - mediante la puesta a su disposición de rótulos o marcas que la cooperativa posea o tenga en usufructo; - mediante la realización de operaciones comerciales, publicitarias o no, que puedan conllevar precios comunes; - mediante la elaboración de métodos y modelos comunes de compra, de surtido y de presentación de productos,
de arquitectura y de organización de los establecimientos. 7° Suscribir participaciones incluso mayoritarias en sociedades directa o indirectamente asociadas que exploten
fondos de comercio.
Artículo L124-2 Las sociedades cooperativas de comerciantes minoristas no podrán admitir a terceros que no sean socios para que
se beneficien de sus servicios. Sin embargo, las sociedades cooperativas de farmacéuticos que regenten una farmacia, no podrán negar sus
servicios en caso de urgencia a los farmacéuticos no asociados ni a aquellas instituciones, públicas o privadas, en las que se atienda a enfermos, cuando éstas sean propietarias legales de una farmacia.
Artículo L124-3
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CÓDIGO DE COMERCIO Las sociedades cooperativas de comerciantes minoristas son sociedades anónimas de capital variable que se han
constituido y que funcionan en conformidad con lo establecido en las disposiciones del libro II, título III, capítulo 1º. Se regirán por las disposiciones del presente capítulo y por las que no sean contradictorias del libro II, títulos del I al IV y de la Ley no 47-1775 de 10 de septiembre de 1947 que contiene el Estatuto de la Cooperación. Se les aplicarán las disposiciones del libro II, títulos del I al IV, referidas a la constitución de las reservas legales.
Únicamente podrán ser consideradas como sociedades cooperativas de comerciantes minoristas, por sí solas o en unión de varias de estas sociedades, y sólo estarán autorizadas a usar esta denominación y añadirla a la suya propia, las sociedades y uniones de sociedades constituidas con el fin de efectuar las operaciones citadas en el artículo L. 124-1 y que, por su constitución y su funcionamiento, se plieguen a las prescripciones establecidas en el presente capítulo.
Artículo L124-4 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 2 Diario Oficial de 27 de marzo de 2004)
Sin perjuicio de la aplicación de las disposiciones del artículo 3 bis de la Ley no 47-1775 de 10 de septiembre de 1947 que contiene el Estatuto de la Cooperación, todo comerciante que ejerza el comercio minorista y esté legalmente establecido en el territorio de un Estado extranjero podrá ser miembro de cooperativas de comerciantes. Lo dispuesto en el párrafo anterior se aplicará a las sociedades cooperativas regidas por el presente capítulo, así como a las empresas registradas en el Registro central de artesanos y en el Registro de Comercio y de Sociedades a la vez. Las cooperativas regidas por el presente capítulo podrán admitir en calidad de socios a personas físicas o jurídicas interesadas en su actividad y competentes para conocerla.
Las sociedades cooperativas de comerciantes minoristas que ejerzan las actividades citadas en el apartado 2° del artículo L. 124-1 podrán además, admitir en calidad de socio a todas las personas a las que se refiere el artículo 125-1.
Los comerciantes minoristas cuya cooperativa esté afiliada a otra cooperativa de comerciantes minoristas podrán beneficiarse directamente de los servicios de ésta.
Artículo L124-5 Las sociedades regidas por el presente capítulo podrán constituir entre ellas agrupaciones que tengan los mismos
objetivos que los definidos en el artículo L. 124-1. Estas agrupaciones deberán cumplir, para su constitución y su funcionamiento, las mismas reglas que dichas
sociedades. Se les aplicará el segundo apartado del artículo 9 de la Ley de 10 de septiembre de 1947 que incluye el Estatuto de la Cooperación.
Las agrupaciones de sociedades cooperativas de comerciantes minoristas sólo podrán incluir a sociedades cooperativas de minoristas o a sus socios. Los comerciantes minoristas cuya cooperativa esté afiliada a una agrupación podrán beneficiarse directamente de los servicios de ésta.
Las sociedades cooperativas de comerciantes minoristas y sus agrupaciones podrán constituir uniones mixtas con otras sociedades cooperativas y sus agrupaciones.
Por excepción a lo dispuesto en el artículo L. 225-1, el número de socios de una agrupación regida por el presente artículo podrá ser inferior a siete.
Artículo L124-7 Los estatutos podrán prever que sociedades cooperativas de comerciantes minoristas se asocien en las
condiciones establecidas en el artículo 3 bis de la Ley de 10 de septiembre de 1947 que incluye el Estatuto de la Cooperación. En ese caso, éstas no podrán recurrir a los servicios de la sociedad cooperativa a la que se hayan asociado.
Artículo L124-8 La junta general deliberará válidamente cuando estuvieran presentes o representados un tercio de los socios
existentes en la fecha del convenio. Sin embargo, las juntas convocadas para modificar los estatutos no deliberarán válidamente si no están presentes
o representados al menos la mitad de los socios existentes en la fecha de la convocatoria. Los socios que hayan emitido su voto por correspondencia contarán para determinar el quórum, si los estatutos lo
autorizaran,. Cuando no se alcance el quórum requerido, se convocará una nueva junta. Deliberará válidamente cualquiera que
sea el número de socios presentes o representados.
Artículo L124-9 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 4 Diario Oficial de 27 de marzo de 2004)
Los acuerdos de la junta general se tomarán por mayoría de los votos de que dispongan los socios presentes o representados. Sin embargo, se requerirá una mayoría de dos tercios de los socios presentes o representados para cualquier modificación de los estatutos.
Si la cooperativa ejerciera las actividades previstas en el apartado 2° del artículo L.124-1, dejará de aplicarse esta disposición en las condiciones previstas por el artículo L. 125-10.
Artículo L124-10 El Consejo de Administración o el Consejo de Supervisión, según los casos, podrán decidir la exclusión de un
socio, tras haber escuchado debidamente las declaraciones del interesado. Todo socio afectado por una medida de exclusión tendrá la posibilidad de apelar tal decisión ante la junta general
que decidirá sobre su recurso en la primera reunión ordinaria que siga a la notificación de la exclusión, la cual será
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CÓDIGO DE COMERCIO efectiva el día de la notificación de su aceptación por parte de la junta general.
Sin embargo, cuando el interés de la sociedad lo requiera, el consejo de administración o el consejo de supervisión, según los casos, podrán suspender del ejercicio de los derechos que el asociado excluido posea en su calidad de miembro de la cooperativa hasta la notificación a éste de la decisión de la junta general, sin que la duración de esta suspensión pueda exceder de un año.
Si la decisión favorable a la exclusión de un socio no estuviera justificada por un motivo serio y legítimo, el Tribunal al que se recurra en el plazo de un mes a partir de la notificación de la desestimación del recurso del socio por parte de la junta general, podrá reintegrar al socio indebidamente excluido, o bien indemnizarlo por daños y perjuicios, o bien ambas medidas al mismo tiempo.
Si la cooperativa ejerciera las actividades previstas en el apartado 2° del artículo L.124-1, dejarán de aplicarse las disposiciones del presente artículo. Se aplicarán los artículos L. 125-15 y L. 125-16.
Artículo L124-11 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 5 Diario Oficial de 27 de marzo de 2004)
Si se tratase de una cooperativa que ejerciera las actividades previstas en el apartado 2° del artículo L. 124-1, se efectuaría el reembolso de las participaciones sociales del socio que se retirara o que hubiera sido excluido, por excepción a lo dispuesto en el artículo 18 de la Ley de 10 de septiembre de 1947 relativa al Estatuto de la Cooperación, en las condiciones previstas por los artículos L. 125-17 y L. 125-18.
Sin embargo, durante cinco años a partir del día en que haya perdido definitivamente su calidad de socio, tanto con respecto a la cooperativa como frente a terceros quedará sujeto a todas las obligaciones que existieran al cierre del ejercicio en el curso del cual haya abandonado la cooperativa. El consejo de administración o el consejo de supervisión, según los casos, podrá conservar durante cinco años como máximo la totalidad o una parte de las sumas debidas al antiguo socio, en aplicación del apartado anterior, hasta el límite del importe necesario para cubrir la garantía de las obligaciones a las que está sujeto en aplicación del presente párrafo, a menos que el interesado proporcione garantías suficientes.
Artículo L124-12 La junta general ordinaria podrá, resolviendo en las mismas condiciones de quórum y de mayoría que la junta
general extraordinaria, transformar en participaciones sociales todo o parte de los retornos cooperativos bloqueados en cuentas individuales así como todo o parte de los retornos distribuibles entre los miembros de la cooperativa en razón del ejercicio transcurrido.
En este último caso, los derechos de cada miembro en la atribución de las participaciones resultantes de esta ampliación de capital, serán idénticos a los que habría tenido en el reparto de los retornos cooperativos.
Artículo L124-13 La Caja Central de Crédito Cooperativo estará autorizada a efectuar todas las operaciones financieras en beneficio
de las sociedades constituidas en conformidad con las disposiciones del presente capítulo, sobre todo a poner a su disposición los fondos que le sean especialmente atribuidos o que pueda procurarse por sí misma bajo la forma de préstamos o por el redescuento de los efectos suscritos, a dar su aval o ser fiador para avalar sus préstamos, a recibir y a gestionar sus depósitos de fondos.
Artículo L124-14 En caso de disolución de una sociedad cooperativa o de una agrupación regida por las disposiciones del presente
capítulo y ateniéndose a las disposiciones de los párrafos siguientes del presente artículo, el excedente neto del activo sobre el capital se asignará a otras sociedades cooperativas o a agrupaciones de cooperativas, o bien a obras de interés general o profesional.
Sin embargo, una sociedad cooperativa o una agrupación de sociedades cooperativas podrá ser autorizada por orden del Ministro de Economía y de Hacienda, previa autorización del Consejo Superior de la Cooperación, a repartir el excedente neto del activo entre sus socios. Este reparto no podrá incluir la parte del excedente neto del activo producto de la ayuda concedida directa o indirectamente a la sociedad o a la agrupación de sociedades por el Estado o por una entidad pública. Esta parte tendrá que ser reembolsada en las condiciones previstas por el decreto de autorización.
Este reparto entre los socios del excedente neto del activo será de pleno derecho cuando la sociedad cooperativa ejerza las actividades citadas en el 2° del artículo L. 124-1.
Artículo L124-15 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Toda agrupación de comerciantes minoristas creada con el objeto de ejercer una o varias actividades citadas en los 1°, 3° y 4° del artículo L. 124-1, si no ha adoptado la forma de sociedad cooperativa de comerciantes minoristas regida por las disposiciones del presente capítulo, deberá constituirse bajo la forma de sociedad anónima, de sociedad de responsabilidad limitada, de agrupación de interés económico o de agrupación europea de interés económico.
Será sancionado con multa de 9.000 euros el que formara una agrupación de comerciantes minoristas infringiendo las disposiciones del apartado anterior.
El Tribunal podrá además ordenar el cese de las operaciones del organismo encausado y, si hubiere lugar a ello, la confiscación de las mercancías adquiridas y el cierre de los locales utilizados.
Artículo L124-16
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CÓDIGO DE COMERCIO Se considerará que las sociedades cooperativas para la compra en común de comerciantes minoristas y sus
uniones, constituidas al amparo de la Ley no 49-1070 de 2 de agosto de 1949 satisfacen las disposiciones del presente capítulo sin que sea necesaria la modificación de sus estatutos.
No obstante, las sociedades beneficiarias de las disposiciones del párrafo anterior tendrán que renovar y adaptar sus estatutos en el momento en que introduzcan en ellos alguna modificación ulterior.
CAPITULO V De las áreas comerciales colectivas de comerciantes independientes Artículos L125-1 a
L125-19
Sección I De la constitución del área comercial colectiva Artículos L125-1 a
L125-9
Artículo L125-1 Las disposiciones del presente capítulo serán aplicables a las personas físicas y jurídicas reunidas en un mismo
recinto, bajo una misma denominación, para explotar, bajo las mismas normas, su fondo de comercio o su empresa inscrita en el Registro central de artesanos sin ceder su propiedad, creando de este modo un área comercial colectiva de comerciantes independientes.
Artículo L125-2 Las personas citadas en el artículo L. 125-1 se unirán, bajo la forma de agrupación de interés económico o de
sociedad anónima de capital variable o de sociedad cooperativa de comerciantes minoristas y constituirán una persona jurídica que ostentará la propiedad y el goce de los edificios y áreas anexas del área comercial colectiva, definirá y aplicará la política común, organizará y gestionará los servicios comunes.
La agrupación de interés económico o la sociedad propietaria de todo o parte de los solares, edificios y áreas anexas del área comercial colectiva, no podrá restituir todo o parte de estos bienes inmobiliarios a sus miembros durante la existencia de dicho centro comercial.
Únicamente podrán ser consideradas como áreas comerciales colectivas de comerciantes independientes, y sólo podrán llevar esta denominación, uniéndola a su propio nombre, las agrupaciones de interés económico, las sociedades anónimas de capital variable y las sociedades cooperativas de comerciantes minoristas que cumplan, para su constitución y su funcionamiento, las prescripciones del presente capítulo.
Artículo L125-3 La agrupación de interés económico o la sociedad que utilizase el leasing será considerada como usuaria de
acuerdo con el artículo 5 b de la Disposición no 67-837 del 28 de septiembre de 1967.
Artículo L125-4 Cada miembro de la agrupación de interés económico o de la sociedad será titular de participaciones o de acciones
no disociables de la utilización de un emplazamiento determinado por el contrato de constitución o por los estatutos, y se beneficiará de los servicios comunes.
El contrato de constitución o los estatutos podrán asignar a cada titular otro emplazamiento en función de las actividades de temporada.
La junta de miembros o la junta general, según los casos, será la única competente para modificar la asignación de los emplazamientos, con el acuerdo previo de los interesados.
Las disposiciones del presente capítulo relativas a las participaciones sociales serán aplicables a las acciones citadas en el primer párrafo del presente artículo.
Artículo L125-5 Cuando se cree o traslade un fondo de comercio o una empresa inscrita en el Registro central de artesanos al área
comercial colectiva, las participaciones asignadas a su propietario, a la agrupación o a la sociedad no se corresponderán con la aportación efectuada. No se hará aportación a la agrupación o a la sociedad en representación de las participaciones atribuidas a su propietario. Quedarán igualmente prohibidas las aportaciones que no sean dinerarias.
Artículo L125-6 En caso de arrendamiento de negocio o de empresa inscrita en el Registro central de artesanos, sólo será
considerado miembro de la agrupación o de la sociedad el arrendador. No podrá trasladarse al área comercial colectiva un fondo de comercio o una empresa que existiera anteriormente,
sin el acuerdo previo del arrendatario-gerente.
Artículo L125-7 El propietario de un fondo de comercio gravado con un privilegio o una pignoración previstos por los capítulos I, II y
III del título IV del presente libro, deberá cumplir con los requisitos formales de publicidad previstos en los artículos L. 141-21 y L. 141-22, antes de su adhesión a un área comercial colectiva y al traslado de este fondo de comercio a dicho centro.
Si el acreedor titular del privilegio o de la pignoración no notificara su oposición por vía de inscripción en la secretaría en los diez días siguientes a la fecha de la última de las publicaciones previstas en los artículos L. 141-12 y
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CÓDIGO DE COMERCIO L. 141-13, se considerará que ha dado su consentimiento a la adhesión del propietario del fondo de comercio.
En caso de oposición, se ordenará judicialmente el levantamiento de ésta, si el propietario del fondo de comercio justifica que las garantías del socio no se verán disminuidas por el hecho de la adhesión al área comercial colectiva o que, al menos, serán equivalentes. Si no hubiera levantamiento de la oposición, el comerciante no podrá adherirse al área comercial colectiva en tanto sea propietario del fondo de comercio.
Artículo L125-8 El contrato de constitución o los estatutos, según el caso, deberán contener la mención expresa, bajo pena de
nulidad y bajo la responsabilidad solidaria de los firmantes de que ningún fondo de comercio está sujeto a un privilegio o a una pignoración, como prevén los capítulos I al III del título IV del presente libro, o bien, en caso contrario, de que no ha habido oposición previa a la adhesión de uno de sus miembros, o que ha sido ordenado judicialmente el levantamiento de ésta.
Artículo L125-9 Las áreas comerciales colectivas de comerciantes independientes ya creadas por intermediación de una persona
jurídica podrán, por medio de adaptación o transformación, acogerse al régimen previsto en el presente capítulo. Todo miembro, podrá solicitar por procedimiento sumario la designación de un mandatario especialmente
encargado de convocar la junta para decidir sobre estas adaptaciones o transformaciones. Salvo disposición contraria, estas decisiones tendrán que ser tomadas por mayoría en número de los miembros
que compongan la persona jurídica. Sin embargo, aquéllos que no hayan aceptado, podrán retirarse solicitando el reembolso de sus títulos, acciones o participaciones, en las condiciones previstas en los artículos L. 125-17 y L. 125-18.
Sección II De la administración del área comercial colectiva Artículos L125-10 a
L125-11
Artículo L125-10 Se adjuntará al contrato de constitución o a los estatutos, según los casos, un reglamento de régimen interno. El contrato de constitución o los estatutos, así como el reglamento de régimen interno, sólo podrán ser modificados
por la junta, o la junta general, según los casos, que resolverá por mayoría absoluta del número de miembros de la agrupación o de la sociedad, o, por una mayoría más amplia, si el contrato de constitución o los estatutos lo determinaran así. Lo mismo para las decisiones relativas a la admisión o la exclusión.
Las demás decisiones se tomarán en las condiciones propias para cada una de las formas de constitución previstas en el artículo L. 125-2. No obstante las disposiciones del libro II, los estatutos de una sociedad anónima de capital variable, constituida por la aplicación del presente capítulo, podrán estipular que cada uno de los accionistas disponga de un voto en junta general, sea cual fuere el número de acciones que posea.
Artículo L125-11 El reglamento de régimen interno determinará las normas propias que aseguren una política comercial común.
Definirá las condiciones generales de explotación y, en particular: 1° Los días y horas de apertura así como, llegado el caso, los períodos de cierre estacionales o por vacaciones
anuales; 2° La organización y la gestión de los servicios comunes y el reparto de los gastos correspondientes a estos
servicios; 3° No obstante lo dispuesto por la legislación vigente sobre la materia, la ordenación de las actividades en
competencia, así como la determinación de las actividades complementarias que podrán ser llevadas a cabo por cada miembro en competencia con las de los otros miembros del área comercial;
4° La elección de las inscripciones publicitarias y las decoraciones propias de cada local, y, eventualmente de su armonización;
5° Las acciones colectivas o individuales de animación del área comercial, en particular las de carácter estacional.
Sección III De la admisión y de la exclusión Artículos L125-12 a
L125-18
Artículo L125-12 El contrato de constitución o los estatutos, según el caso, podrán subordinar toda cesión de participaciones a la
admisión del cesionario por parte de la junta de la agrupación o de la junta general de la sociedad, según los casos. La junta o la junta general se pronunciará en el plazo de un mes a partir de la fecha de la solicitud de admisión.
El contrato de constitución o los estatutos, según el caso, podrán igualmente someter a esta admisión a los derechohabientes de un titular de participaciones fallecido que no participasen en su actividad en el área comercial colectiva.
La denegación de esta admisión dará lugar a indemnización en las condiciones previstas en los artículos L. 125-17 y L. 125-18.
Artículo L125-13 La cláusula de autorización no será oponible en caso de venta forzosa de las participaciones, incluso si éstas
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CÓDIGO DE COMERCIO hubieran sido o no objeto de una pignoración.
Artículo L125-14 El contrato de constitución o los estatutos, según los casos, podrán subordinar el arrendamiento de un fondo de
comercio o de una empresa artesanal del área comercial a la admisión del arrendatario gerente por parte de la junta. En caso de suspensión de pagos o liquidación judicial del propietario, esta cláusula no podrá ser invocada si el
Tribunal autoriza la firma de un contrato de arrendamiento de negocio, de conformidad con las disposiciones del título II del libro VI.
Artículo L125-15 El órgano de administración del área comercial colectiva podrá dirigir un apercibimiento a cualquier miembro que,
por sí mismo o por medio de las personas a las que ha confiado la explotación de su establecimiento o empresa, cometiese una infracción al régimen interno.
En caso de arrendamiento de negocio, este apercibimiento será notificado también al arrendatario-gerente. Si en los tres meses siguientes, este apercibimiento no surtiese efecto y si los intereses legítimos del área
comercial colectiva o de algunos de sus miembros se viesen comprometidos, la junta de miembros, o la junta general, según los casos, tendrá la facultad de decidir, por la mayoría prevista en el artículo L. 125-10, la exclusión del interesado.
El excluido tiene la facultad, hasta que esta decisión de exclusión sea definitiva, de presentar uno o varios cesionarios, en las condiciones fijadas por el contrato de constitución o por los estatutos.
Artículo L125-16 Sin perjuicio de lo dispuesto por el procedimiento de valoración de las participaciones, previsto en el segundo
apartado del artículo L. 125-17, todo miembro de un área comercial colectiva podrá someter a un Tribunal de grande instance cualquier decisión tomada en aplicación de los artículos L. 125-12, L. 125-14 y del tercer apartado del artículo L. 125-15, en el plazo de un mes a partir de su notificación por carta certificada con acuse de recibo.
El Tribunal podrá anular o reformar la decisión que le haya sido presentada o sustituirla por su propia decisión. Salvo cláusula en contrario, el recurso judicial tendrá efecto suspensivo de la ejecución de la resolución recurrida
en apelación, excepto en el caso de una decisión de exclusión motivada por la no utilización de los locales o por la falta de pago de los gastos.
Artículo L125-17 En caso de exclusión, de marcha o de fallecimiento acompañados de denegación de la admisión del cesionario o
de los sucesores, el titular de las participaciones, o, en caso de fallecimiento, sus derechohabientes, tendrán la facultad de transferir o enajenar su fondo de comercio o su empresa inscrita en el Registro central de artesanos. El nuevo adjudicatario del local o, en su defecto, la agrupación o la sociedad, según el caso, les reembolsará el importe del valor de sus participaciones, incrementado, si procede, por la plusvalía que sus obras de acondicionamiento hayan podido conferir al local del que eran titulares.
Este valor será determinado por la junta o la junta general, según el caso, al mismo tiempo que se tomará la decisión de exclusión o de denegación de la admisión del cesionario o de sus sucesores. En caso de desacuerdo, será determinado, en la fecha de estas decisiones, por un perito designado por resolución del presidente del Tribunal de grande instance que resolverá en forma sumaria. Esta Disposición no será susceptible de ninguna vía de recurso, salvo cláusula en contrario. El informe pericial será sometido a la homologación del presidente del Tribunal de grande instance que resolverá en forma sumaria.
Artículo L125-18 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
En los casos previstos en el primer apartado del artículo L. 125-17, la agrupación o la sociedad no podrán proceder a la instalación de un nuevo adjudicatario hasta que no hayan pagado al antiguo titular de las participaciones, o en caso de fallecimiento, a sus derechohabientes, las sumas previstas en dicho artículo L. 125-17, o en su defecto, una provisión determinada por el presidente del Tribunal de grande instance que resolverá en forma sumaria.
Sin embargo, no se exigirá este pago previo cuando haya sido ofrecida una fianza por el importe de estas sumas o de esta provisión por parte de un establecimiento de crédito o de una entidad financiera especialmente habilitada a este efecto o cuando esta suma haya sido consignada en manos de un mandatario designado para ello por resolución judicial recaída en forma sumaria.
Además, si se trata de una cooperativa, el Consejo de Administración o el Directorio, según el caso, podrá invocar las disposiciones del segundo párrafo del artículo L.124-11.
Sección IV De la disolución Artículo L125-19
Artículo L125-19 Salvo cláusula en contrario del contrato de constitución o de los estatutos, la suspensión de pagos o la liquidación
judicial de uno de sus miembros no conllevará de pleno derecho la disolución de la agrupación de interés económico.
CAPITULO VI De las sociedades de garantía recíproca Artículo L126-1
Artículo L126-1
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CÓDIGO DE COMERCIO Las normas de creación de sociedades de garantía recíproca entre comerciantes, empresarios, fabricantes,
artesanos, sociedades mercantiles, miembros de profesiones liberales, propietarios de inmuebles o de derechos inmobiliarios, así como entre los operadores comerciales mencionados en el artículo L. 524-1, serán determinadas por la Ley de 13 de marzo de 1917.
CAPITULO VII Del contrato de apoyo al proyecto de empresa para la creación o la continuación de
una actividad económica Artículos L127-1 a L127-7
Artículo L127-1 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2001 Artículo 20 II Diario Oficial de 5 de agosto de 2003)
El apoyo al proyecto de empresa para la creación o la continuación de una actividad económica consistirá en un contrato mediante el cual una persona jurídica se compromete a proporcionar, con los medios de que dispone, una ayuda específica y continua a una persona física que no sea asalariada a tiempo completo, la cual a su vez se compromete a seguir un programa de preparación a la creación o continuación y a la gestión de una actividad económica. Este contrato también podrá concertarse entre una persona jurídica y el dirigente socio único de una persona jurídica.
Artículo L127-2 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2001 Artículo 20 II Diario Oficial de 5 de agosto de 2003)
El contrato de apoyo al proyecto de empresa se firmará por una duración que no podrá exceder de doce meses renovables dos veces. Las condiciones de aplicación del programa de apoyo y preparación y así como las condiciones de compromiso respectivo de las partes contratantes estarán precisadas por el contrato. Se determinarán así las condiciones en las que la persona beneficiaria podrá comprometerse, con respecto a terceros, en relación con la actividad económica proyectada.
El contrato se realizará por escrito, bajo pena de nulidad.
Artículo L127-3 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2001 Artículo 20 II Diario Oficial de 5 de agosto de 2003)
El hecho de poner a disposición del beneficiario los medios necesarios para su preparación a la creación o la continuación y para la gestión de la actividad económica proyectada, no conllevará en sí mismo, para la persona jurídica responsable de dicho apoyo, la presunción de una relación de subordinación.
La puesta a disposición de estos medios y la contrapartida eventual de gastos realizados por la persona jurídica responsable del apoyo en aplicación del contrato, figurarán en su balance.
Artículo L127-4 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2001 Artículo 20 II Diario Oficial de 5 de agosto de 2003)
Cuando se inicie una actividad económica en el transcurso del contrato, el beneficiario deberá proceder a la inscripción de la empresa, siempre que esta inscripción sea requerida por la naturaleza de dicha actividad.
Antes de cualquier inscripción, las obligaciones a las que se hubiera comprometido el beneficiario en relación a terceros en el marco del programa de apoyo y preparación serán asumidas por el acompañante. Tras la inscripción, la persona jurídica responsable del apoyo y el beneficiario quedarán obligados de manera solidaria al cumplimiento de los compromisos de este último, de conformidad con las estipulaciones del contrato de apoyo hasta la finalización del mismo.
Artículo L127-5 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2001 Artículo 20 II Diario Oficial de 5 de agosto de 2003)
El contrato de apoyo al proyecto de empresa para la creación o la continuación de una actividad económica no podrá tener como objeto o efecto la infracción a las disposiciones de los artículos L. 125-1, L. 125-3, L. 324-9 o L. 324-10 del Código de Trabajo.
El acto de creación o de continuación de empresa deberá diferenciarse claramente de la función de acompañamiento.
Artículo L127-6 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2001 Artículo 20 II Diario Oficial de 5 de agosto de 2003)
La situación profesional y social del beneficiario del contrato de apoyo al proyecto de empresa será determinada por los artículos L. 783-1 y L.783-2 del Código de Trabajo.
La persona jurídica responsable del apoyo será responsable frente a terceros de los perjuicios causados por el beneficiario en el marco del programa de apoyo y preparación mencionado en los artículos L. 127-1 y L. 127-2 antes de la inscripción mencionada en el artículo L. 127-4. Después de la inscripción, la persona jurídica responsable del apoyo garantizará la responsabilidad en el marco del contrato de apoyo, siempre que el beneficiario haya respetado las cláusulas del contrato hasta la finalización del mismo.
Artículo L127-7 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2001 Artículo 20 II Diario Oficial de 5 de agosto de 2003)
Las modalidades de publicidad de los contratos de apoyo al proyecto de empresa para la creación o la continuación de una actividad económica así como las demás medidas de aplicación del presente capítulo serán determinadas por decreto adoptado en Conseil d'Etat.
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CÓDIGO DE COMERCIO CAPITULO VIII De las incapacidades para el ejercicio de una profesión comercial o industrial Artículos L128-1 a
L128-6
Artículo L.128-1 (Introducido por la Disposición nº 2005-428 de 6 de mayo de 2005 art. 1 Diario Oficial de 7 de mayo de 2005)
Nadie podrá, ni directa ni indirectamente, por su propia cuenta o por cuenta ajena, ejercer una profesión comercial o industrial, dirigir, administrar, gestionar o controlar, en cualquier concepto, una empresa comercial o industrial o una sociedad comercial si hubiera sido objeto, en un plazo inferior a diez años, de una condena definitiva:
1° Por crimen; 2° A una pena de al menos tres meses de prisión sin suspensión por: a) Una de las infracciones previstas en el título I del libro III del Código Penal, así como por los delitos
contemplados en leyes especiales y sancionados por las penas previstas para la estafa o el abuso de confianza; b) Ocultación o una de las infracciones equiparables a la ocultación o semejante a esta previstas en la sección 2
del capítulo I del título II del libro III del Código Penal; c) Blanqueo; d) Corrupción activa o pasiva, tráfico de influencias, sustracción y desvío de bienes; e) Falsedad documental, falsificación de títulos o de otros valores fiduciarios emitidos por la autoridad pública,
falsificación de las marcas de autoridad; f) Pertenencia a una asociación para delinquir; g) Tráfico de estupefacientes; h) Proxenetismo o una de las infracciones contempladas en las secciones 2 y 2 bis del capítulo V del título II del
libro II del Código Penal; i) Una de las infracciones previstas en la sección 3 del capítulo V del título II del libro II del Código Penal; j) Una de las infracciones a la legislación sobre las sociedades comerciales previstas en el título IV del libro II del
presente Código; k) Bancarrota; l) Práctica de préstamo usurario; m) Una de las infracciones contempladas por la Ley de 21 de marzo de 1836 relativa a la prohibición de loterías,
por la Ley de 15 de junio de 1907 que regula el juego en los círculos y casinos de los centros turísticos en la costa y de las estaciones termales y por la Ley nº 83-628 de 12 de julio de 1983 relativa a los juegos de azar;
n) Infracciones contra la legislación y la normativa sobre las relaciones financieras con el extranjero; o) Fraude fiscal; p) Una de las infracciones previstas en los artículos L.115-16 y L.115-18, L.115-24, L.115-30, L.121-6, L.121-28,
L.122-8 a L.122-10, L.213-1 a L.213-5, L.217-1 a L.217-3, L.217-6 a L.217-10 del Código de Consumo; q) Una de las infracciones previstas en los artículos L.324-9, L.324-10 y L.362-3 del Código de Trabajo; 3º A la destitución de las funciones de oficial o fedatario público.
Artículo L.128-2 (Introducido por la Disposición nº 2005-428 de 6 de mayo de 2005 art. 1 Diario Oficial de 7 de mayo de 2005)
Las personas que ejercieran una función, una actividad o una profesión de las mencionadas en el artículo L.128-1, y que fueran objeto de una de las condenas previstas en el mencionado artículo deberán cesar en su actividad en un plazo de un mes a contar desde la fecha en que la resolución fuera definitiva.
Artículo L.128-3 (Introducido por la Disposición nº 2005-428 de 6 de mayo de 2005 art. 1 Diario Oficial de 7 de mayo de 2005)
En caso de condena dictada por una jurisdicción extranjera con fuerza de cosa juzgada por una infracción que constituyera para la ley francesa un crimen o uno de los delitos mencionados en el artículo L.128-1, el Tribual de Grande Instance del domicilio del condenado competente en materia penal, declarará, a instancias del Ministerio Fiscal, tras constatación de la regularidad y la legalidad de la condena y tras haber convocado y tomado declaración al interesado en sesión celebrada a puerta cerrada, que procede la aplicación de la incapacidad contemplada en el artículo L.128-1.
Esta incapacidad se aplicará también a cualquier persona no rehabilitada que hubiera sido objeto de quiebra personal declarada por una jurisdicción extranjera cuando la providencia declarativa haya adquirido fuerza ejecutiva en Francia. La solicitud de exequátur podrá ser formulada, únicamente con este fin, por la Fiscalía ante el Tribunal de Grande Instance del domicilio del condenado.
Artículo L.128-4 (Introducido por la Disposición nº 2005-428 de 6 de mayo de 2005 art. 1 Diario Oficial de 7 de mayo de 2005)
El órgano jurisdiccional que hubiera dictado la destitución mencionada en el apartado 3° del artículo L.128-1 podrá decidir, a petición del oficial o fedatario público destituido, la suspensión de la incapacidad prevista en el artículo arriba mencionado o la reducción del periodo de aplicación de la misma.
Artículo L.128-5 (Introducido por la Disposición nº 2005-428 de 6 de mayo de 2005 art. 1 Diario Oficial de 7 de mayo de 2005)
Será castigado con las penas previstas en el artículo 313-1 del Código Penal el que infringiera las incapacidades previstas en los artículos L.128-1, L.128-2 y L.128-3.
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CÓDIGO DE COMERCIO Las personas culpables de la infracción citada en el párrafo anterior podrán ser sancionadas asimismo, como pena
accesoria, a la confiscación de las mercancías o del fondo de comercio, conforme a las modalidades definidas en el artículo 131-21 del Código Penal.
Artículo L.128-6 (Introducido por la Disposición nº 2005-428 de 6 de mayo de 2005 art. 1 Diario Oficial de 7 de mayo de 2005)
Las disposiciones del presente capítulo no obstarán a la aplicación de las normas de ejercicio de determinadas profesiones.
Las mismas se aplicarán asimismo a quienes se dedicaran profesionalmente a la representación comercial.
TITULO III DE LOS CORREDORES, DE LOS COMISIONISTAS, DE LOS TRANSPORTISTAS Y
DE LOS AGENTES MEDIADORES DE COMERCIO Artículos L131-1 a L134-17
CAPITULO I De los corredores Artículos L131-1 a
L131-11
Artículo L131-1 Existen varios tipos de corredores: corredores de mercancías, corredores intérpretes conductores de buques,
corredores de transporte por tierra y agua.
Artículo L131-3 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Los corredores de transporte por tierra y por agua, constituidos según la Ley, tendrán en exclusiva, en los lugares en que se hayan establecido, el derecho a realizar el corretaje de los transportes por tierra y por agua. No podrán acumular sus funciones con las de corredores de mercancías o con las de corredores intérpretes de buques, designados en los artículos L. 131-1.
Artículo L131-5 Los proveedores de servicios de inversión podrán hacer, en competencia con los corredores de mercancías, las
negociaciones y el corretaje de las ventas o las compras de materiales metálicos. Sólo ellos tendrán derecho a comprobar su cotización.
Artículo L131-11 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será sancionado con multa de 3750 euros, sin perjuicio de la acción de las partes por daños y perjuicios, el corredor que se encargara de una operación de corretaje en un asunto en el que tuviera un interés personal, sin advertirlo a las partes a las que sirviera de intermediario,. Si estuviera inscrito en la lista de corredores, elaborada de acuerdo a las disposiciones reglamentarias vigentes al respecto, será eliminado de ella y no podrá ser inscrito de nuevo.
CAPITULO II De los comisionistas Artículos L132-1 a
L132-9
Sección I De los comisionistas en general Artículos L132-1 a
L132-2
Artículo L132-1 El comisionista será aquel que actúe en su propio nombre o bajo un nombre social por cuenta de un comitente. Los derechos y deberes del comisionista que actúa en nombre de un comitente están especificados en el titulo XIII
del libro III del Código Civil.
Artículo L132-2 El comisionista tendrá un crédito preferencial sobre el valor de las mercancías que sean objeto de su obligación y
sobre los documentos referidos a ellas para todas sus créditos de comisión sobre su comitente, incluso los nacidos en operaciones anteriores.
En el crédito privilegiado del comisionista se incluirán, además del capital, los intereses, comisiones y gastos accesorios.
Sección II De los comisionistas de transportes Artículos L132-3 a
L132-9
Artículo L132-3 El comisionista que se encargue de un transporte por tierra o por agua estará obligado a inscribir en su libro diario
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CÓDIGO DE COMERCIO la declaración de la naturaleza y de la cantidad de las mercancías, y, si se le solicitara, de su valor.
Artículo L132-4 El comisionista será responsable de la llegada de las mercancías y de los efectos en el plazo determinado por la
carta de porte, salvo en los casos de fuerza mayor legalmente constatados.
Artículo L132-5 El comisionista será responsable de las averías y pérdidas de las mercancías y efectos, si no hubiera estipulación
en contrario en la carta de porte, o fuerza mayor.
Artículo L132-6 El comisionista será responsable de los hechos realizados por el comisionista intermediario al que dirigiera las
mercancías.
Artículo L132-7 La mercancía salida del almacén del vendedor o del remitente, viajará, si no hay un acuerdo que determine lo
contrario, por cuenta y riesgo del propietario, salvo que éste actúe contra el comisionista y el transportista encargados del transporte.
Artículo L132-8 La carta de porte tendrá el valor de un contrato entre el remitente, el transportista y el destinatario o entre el
remitente, el destinatario, el comisionista y el transportista. De este modo el transportista posee una acción directa para requerir el pago por sus prestaciones frente al remitente y al destinatario, los cuales son garantes del pago del precio del transporte. Cualquier cláusula en contrario se tendrá por no puesta.
Artículo L132-9 I. - La carta de porte deberá estar fechada. II. - Deberá especificar: 1° La naturaleza y el peso o la capacidad de los objetos a transportar; 2° El plazo en el que el transporte deberá ser efectuado. III. - Deberá indicar: 1° El nombre y el domicilio del comisionista, si lo hay, por cuya intermediación se efectúa el transporte; 2° El nombre de aquél a quien se dirige la mercancía; 3° El nombre y el domicilio del transportista. IV. - Declarará también: 1° El precio del transporte; 2° La indemnización que se pagará en caso de retraso. V. - Estará firmada por el remitente o el comisionista. VI. - Anotará en su margen las marcas y su números de los objetos a transportar. VII. - La carta de porte será copiada por el comisionista en un registro numerado y rubricado, sin intervalos y sin
espacios en blanco.
CAPITULO III De los transportistas Artículos L133-1 a
L133-7
Artículo L133-1 El transportista será garante de la pérdida de los objetos que transportara, salvo en los casos de fuerza mayor. Será también responsable de cualquier daño que no provenga del vicio propio de la cosa o de la fuerza mayor. Cualquier cláusula en contrario, incluida en cualquier carta de porte, tarifa o cualquier otro documento, será
considerada nula.
Artículo L133-2 Si, por efecto de fuerza mayor, el transporte no se efectuara en el plazo convenido, no habrá lugar a
indemnización contra el transportista por causa de este retraso.
Artículo L133-3 La recepción de los objetos transportados extinguirá cualquier acción contra el transportista por causa del daño o
pérdida parcial si en los tres días siguientes a esta recepción, sin incluir los días festivos, el destinatario no hubiera notificado al transportista, por medio de documento extrajudicial o por carta certificada, su reclamación justificada.
Si durante este plazo se formulase una petición de dictamen pericial en aplicación del artículo L. 133-4, esta solicitud valdrá como reclamación sin que sea necesario proceder de la forma citada en el primer párrafo.
Cualquier otra estipulación en contrario será nula de pleno derecho. Esta última disposición no será aplicable a los transportes internacionales.
Artículo L133-4 En caso de rechazo de los objetos transportados o presentados para ser transportados, o de conflicto, cualquiera
que sea su naturaleza, sobre la realización o la ejecución del contrato de transporte, o por causa de un incidente ocurrido en el transcurso mismo y en ocasión del transporte, uno o varios peritos designados por el presidente del Tribunal de commerce o, en su defecto, el presidente del Tribunal de Instancia y por resolución dada por
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CÓDIGO DE COMERCIO requerimiento, comprobarán y verificarán el estado de los objetos transportados o presentados para ser transportados, y, si es necesario, su embalaje, su peso, su naturaleza, etc.
El requirente estará obligado, bajo su responsabilidad, a citar para este informe pericial, incluso por simple carta certificada o por telegrama, a todas las partes susceptibles de ser acusadas, especialmente al remitente, al destinatario, al transportista y al comisionista, y los peritos tendrán que prestar juramento, sin formalidades de audiencia, ante el Juez que los haya nombrado o ante el Juez del Tribunal de Instancia del lugar de dónde procedan. Sin embargo en caso de urgencia, el Juez competente podrá dispensar del cumplimiento de todas o de parte de estos requisitos formales previstos en el presente párrafo. Esta dispensa deberá anotarse en la resolución.
Podrá ordenarse el depósito o consignación de los objetos en litigio y posteriormente su traslado a un depósito público.
Podrá ordenarse su venta para proceder al pago de los gastos de transporte u otros ya realizados. El Juez asignará el producto de la venta a la parte que haya adelantado la suma de dichos gastos.
Artículo L133-5 Las disposiciones contenidas en este capítulo son comunes para los transportistas por carretera y los
transportistas fluviales.
Artículo L133-6 Las acciones contra el transportista por daños, pérdidas o retrasos, a las que pueda dar lugar el contrato de
transporte, prescribirán en el plazo de un año, sin perjuicio de los casos de fraude o incumplimiento. Cualquier otra acción a la que este contrato pueda dar lugar, tanto contra el transportista o el comisionista como
contra el remitente o destinatario, así como las que tienen su origen en las disposiciones del artículo 1269 del Nuevo Código de Proceso Civil, prescribirán en el plazo de un año.
El plazo de estas prescripciones en el caso de pérdida total, comenzará a partir del día en que la entrega de las mercancías tendría que haberse producido, y, en todos los demás casos, desde el día en el que la mercancía haya sido entregada u ofrecida al destinatario.
El plazo para emprender cualquier tipo de recurso será de un mes. Esta prescripción sólo empezará a contar desde el día del ejercicio de la acción contra el garantizado
En el caso de transportes realizados por cuenta del Estado, la prescripción empezará a contar desde el día de la notificación de la decisión ministerial que implique la liquidación o el libramiento definitivo.
Artículo L133-7 El transportista tendrá crédito privilegiado sobre el valor de las mercancías que sean objeto de su obligación y de
los documentos referidos a ellas para todas las deudas de transporte, incluso aunque provengan de operaciones anteriores, en las que el ordenante, remitente o destinatario haya quedado como su deudor, en la medida en que el propietario de las mercancías sobre las que se ejerce el privilegio esté implicado en dichas operaciones.
Los créditos de transporte cubiertos por el privilegio serán los precios del transporte propiamente dicho, los complementos de remuneración adeudados incluidos en el concepto de prestaciones complementarias y de inmovilización del vehículo en la carga o la descarga, los gastos realizados en interés de la mercancía, los derechos, tasas, gastos y posibles sanciones de aduana vinculadas a una operación de transporte y los intereses correspondientes.
CAPITULO IV De los agentes mediadores de comercio Artículos L134-1 a
L134-17
Artículo L134-1 El agente es un mandatario que, como profesional independiente, sin estar vinculado por un contrato de
arrendamiento de servicios, estará encargado, de modo permanente, de negociar y, eventualmente, de ultimar contratos de venta, de compra, de alquiler o de prestación de servicios en nombre y por cuenta de productores, de empresarios, de comerciantes o de otros agentes comerciales. Puede ser una persona física o jurídica.
Las disposiciones del presente capítulo no afectarán a los agentes cuya misión de representación se ejerza en el marco de actividades económicas que sean objeto, en lo que concierne a dicha misión, de disposiciones legislativas particulares.
Artículo L134-2 Cada parte tendrá el derecho, si lo solicitara, de obtener de la otra parte un escrito firmado en el que se mencione
el contenido del contrato de agencia, incluido el de sus cláusulas adicionales.
Artículo L134-3 El agente comercial podrá aceptar sin autorización la representación de nuevos mandantes. Sin embargo, no podrá
aceptar la representación de una empresa competidora de la de uno de sus mandantes sin el acuerdo de éste.
Artículo L134-4 Los contratos concertados entre los agentes comerciales y sus mandantes serán firmados en el interés común de
ambas partes. Las relaciones entre el agente comercial y el mandante se regirán por una obligación de lealtad y un deber
recíproco de información.
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CÓDIGO DE COMERCIO El agente comercial tendrá que ejecutar su mandato como buen profesional; el mandante tendrá que poner los
medios para que el agente comercial ejecute su mandato.
Artículo L134-5 Todo elemento de la remuneración que varíe con el número o el valor de las operaciones constituirá una comisión
a efectos del presente capítulo. Los artículos L. 134-6 a L. 134-9 serán aplicables cuando el agente sea remunerado en todo o en parte con la
comisión así definida. A falta de especificación en el contrato el agente comercial tendrá derecho a una remuneración que se
corresponda con las prácticas usuales en el sector de actividad cubierto por su mandato, allí dónde ejerza su actividad. Si estas prácticas usuales no existiesen, el agente comercial tendrá derecho a una remuneración razonable que tenga en cuenta todos los elementos relacionados con la operación.
Artículo L134-6 El agente comercial tendrá derecho, en toda operación comercial realizada durante el período de duración del
contrato de agencia, a percibir la comisión definida en el artículo L. 134-5 cuando haya sido concertada gracias a su intervención o cuando la operación se haya cerrado con un tercero, que haya sido conseguido anteriormente por él como cliente para operaciones del mismo tipo.
Cuando esté encargado de un sector geográfico o de un grupo de personas determinado, el agente comercial tendrá igualmente derecho a percibir la comisión por toda operación concertada durante la vigencia del contrato de agencia con una persona que pertenezca a ese sector o ese grupo.
Artículo L134-7 En toda operación comercial concluida tras la cancelación del contrato de agencia, el agente comercial tendrá
derecho a la comisión cuando la operación se deba principalmente a su actividad en el curso del contrato de agencia y haya sido concluida aún dentro de un plazo razonable tras la cancelación del contrato, o bien cuando la orden del tercero haya sido recibida por el mandante o por el agente comercial antes de la cancelación de dicho contrato de agencia, en las condiciones previstas por el artículo L. 134-6.
Artículo L134-8 El agente comercial no tendrá derecho a la comisión prevista en el artículo L. 134-6 si ésta se debiera, en virtud del
artículo L.134-7 al agente comercial anterior, a menos que las circunstancias justifiquen un reparto equitativo de la comisión entre ambos.
Artículo L134-9 Se devengará la comisión en cuanto el mandante haya efectuado la operación o debiera haberla ejecutado en
virtud del acuerdo concertado con el tercero o bien en cuanto el tercero haya ejecutado la operación. La comisión será devengada, como máximo, cuando el tercero haya ejecutado su parte de la operación o debiera
haberla ejecutado si el mandante hubiera ejecutado la suya propia. Será pagada a más tardar el último día del mes siguiente al trimestre en que haya sido devengada.
Artículo L134-10 El derecho a la comisión no podrá extinguirse hasta que se haya probado que el contrato entre el tercero y el
mandante no será ejecutado y siempre que esa falta de ejecución no sea debida a circunstancias imputables al mandante.
Los comisiones que el agente comercial ya haya percibido serán reembolsadas si el derecho correspondiente a ella se hubiera extinguido.
Artículo L134-11 Se considerará que un contrato de duración determinada que continúe siendo ejecutado por ambas partes tras su
finalización, se habrá transformado en un contrato por tiempo indefinido. Cuando el contrato de agencia fuera por tiempo indefinido, cada una de las partes podrá ponerle fin mediante
preaviso. Las disposiciones del presente artículo serán aplicables al contrato de duración determinada transformado en contrato por tiempo indefinido. En ese caso, el cálculo del plazo del preaviso tendrá en cuenta el período de duración determinada anterior.
El plazo del preaviso será de un mes para el primer año de contrato, de dos meses para el segundo año comenzado, de tres meses para el tercer año comenzado y los años siguientes. Salvo acuerdo en contrario, el fin del plazo del preaviso coincidirá con el fin de un mes civil.
Las partes no podrán concertar plazos de preaviso más cortos. Si deciden plazos más largos, el plazo de preaviso previsto para el mandante no podrá ser más corto que el previsto para el agente comercial.
Estas disposiciones no serán aplicables cuando el contrato finalice por causa de una falta grave de una de las partes o porque se produzca un caso de fuerza mayor.
Artículo L134-12 En caso de denuncia del contrato por el mandante, el agente comercial tendrá derecho a una indemnización
compensatoria para reparar el perjuicio sufrido. El agente comercial perderá el derecho a esta reparación si no hubiera notificado al mandante, en un plazo de un
año a contar desde la finalización del contrato que pretende hacer valer sus derechos. Los derechohabientes del agente comercial se beneficiarán igualmente del derecho a la reparación cuando la
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CÓDIGO DE COMERCIO extinción del contrato se deba al fallecimiento de éste.
Artículo L134-13 No se tendrá derecho a la reparación prevista por el artículo L. 134-12: 1° Cuando la denuncia del contrato haya sido provocada por una falta grave del agente comercial; 2° Cuando la denuncia del contrato provenga de la iniciativa del agente comercial a menos que esta denuncia esté
justificada por circunstancias imputables al mandante o debidas a la edad, la invalidez o la enfermedad del agente comercial, a consecuencia de las cuales no se le pueda razonablemente exigir la continuación de su actividad;
3° Cuando según un acuerdo con el mandante, el agente comercial ceda a un tercero los derechos de que es titular y las obligaciones que posea en virtud del contrato de agencia.
Artículo L134-14 El contrato podrá incluir una cláusula de no competencia tras la extinción del mismo. Esta cláusula deberá ser consignada por escrito y referirse al sector geográfico y, llegado el caso, al grupo de
personas confiadas al agente comercial, así como al tipo de bienes o servicios para los que ejercerá la representación en los términos del contrato.
La cláusula de no competencia sólo será válida por un periodo máximo de dos años tras la extinción del contrato.
Artículo L134-15 Cuando la actividad de agente comercial sea ejercida en virtud de un contrato escrito concertado entre las partes
con otro objeto a título principal, éstas podrán decidir por escrito que las disposiciones del presente capítulo no sean aplicables a la parte correspondiente a la actividad de agencia comercial.
Esta renuncia será considerada nula si la ejecución del contrato muestra que la actividad de agencia es ejercida en realidad a título principal o determinante.
Artículo L134-16 Se tendrá por no puesta cualquier cláusula o acuerdo contrario a las disposiciones de los artículos L. 134-2 y L.
134-4, del párrafo tercero y cuarto del artículo L. 134-11, y del artículo L. 134-15 o que no tenga en cuenta la aplicación, en detrimento del agente comercial, de las disposiciones del segundo apartado del artículo L.134-9, del primer párrafo del artículo L. 134-10, de los artículos L. 134-12 y L. 134-13 y del párrafo tercero del artículo L. 134-14.
Artículo L134-17 Las condiciones de aplicación del presente capítulo serán determinadas por un decreto adoptado en Conseil d'Etat.
TITULO IV DEL ESTABLECIMIENTO DEDICADO A LA ACTIVIDAD COMERCIAL Artículos L141-1 a
L146-4
CAPITULO I De la venta del fondo de comercio Artículos L141-1 a
L141-22
Sección I Del acta de venta Artículos L141-1 a
L141-4
Artículo L141-1 I. - En todo documento que consigne una cesión amistosa de un fondo de comercio, suscrito incluso bajo la
condición y la forma de otro tipo de contrato o la aportación en sociedad de un fondo comercial, el vendedor estará obligado a declarar:
1° El nombre del vendedor anterior, la fecha y la clase de su documento de compra y el precio de compra en lo que se refiera a los elementos incorporales, a las mercancías y al material;
2° El estado de los privilegios y pignoraciones que pesaran sobre el fondo; 3° El volumen de negocio que haya realizado en el curso de los tres últimos años de explotación, o desde su
compra si lo explotaba desde hace menos de tres años; 4° Los beneficios obtenidos durante ese tiempo; 5° El contrato de arrendamiento, su fecha, su duración, el nombre y la dirección del arrendador y del cedente si
procediera. II. - La omisión de alguna de estas declaraciones anteriormente citadas, podrá conllevar la nulidad del documento
de venta, si el comprador lo solicitara antes de un año.
Artículo L141-3 El vendedor responderá, salvo estipulación en contrario, con la fianza depositada por razón de la inexactitud de sus
declaraciones en las condiciones promulgadas por los artículos 1644 y 1645 del Código Civil. Los intermediarios, redactores de los documentos y sus encargados, responderán solidariamente con él si
conocieran la inexactitud de las declaraciones realizadas.
Artículo L141-4 La acción resultante de la aplicación del artículo L. 141-3 tendrá que ser presentada por el comprador en el plazo
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CÓDIGO DE COMERCIO de un año, a contar desde la fecha de su toma de posesión.
Sección II Del privilegio del vendedor Artículos L141-5 a
L141-22
Artículo L141-5 El crédito privilegiado del vendedor de un fondo de comercio sólo existirá si se hubiera consignado la venta en
escritura pública o en un documento privado, debidamente registrado, y hubiera sido inscrita en un registro público situado en la secretaría del Tribunal de commerce en cuya circunscripción se explotara dicho fondo de comercio.
Sólo afectará a los elementos del fondo enumerados en la venta y en la inscripción, y si no existiera designación precisa, al rótulo y nombre comercial, al contrato de arrendamiento, a la clientela y al buen nombre del fondo de comercio.
Se determinarán separadamente los precios de los elementos incorporales del fondo de comercio, el material y las mercancías.
El crédito privilegiado del vendedor garantizado por cada uno de estos precios, o por el resto del precio debido por los demás elementos, se ejercerá separadamente sobre los respectivos precios de la reventa correspondientes a las mercancías, al material y a los elementos incorporales del fondo.
Salvo acuerdo en contrario, los pagos parciales que no sean al contado se imputarán primero al precio de las mercancías, después al precio del material.
Se procederá a determinar la tasación con relación al precio global del precio de reventa si se aplica a uno o a varios elementos no incluidos en la primera venta.
Artículo L141-6 La inscripción deberá realizarse, bajo pena de nulidad, dentro de los quince días siguientes a la fecha del
documento de compraventa. Primará sobre cualquier inscripción hecha en el mismo plazo por derecho del comprador; será oponible a los acreedores del comprador en situación de suspensión de pagos o en liquidación judicial, así como a sus causahabientes.
La acción resolutoria descrita en el artículo 1654 del Código Civil deberá ser anotada y reservada expresamente en la inscripción para producir su efecto. No podrá ejercerse en perjuicio de terceros tras la extinción del privilegio. Se limitará, como el privilegio, a los elementos que hayan formado parte de la venta.
Artículo L141-7 En caso de resolución judicial o amistosa de la venta, el vendedor estará obligado a retomar todos los elementos
del fondo de comercio que hayan formado parte de la venta, incluso aquéllos cuyo privilegio y acción resolutoria correspondiente hayan caducado. Contabilizará el precio de las mercancías y del material existente en el momento en que vuelva a tomar posesión del fondo de comercio, según la tasación que haga el informe pericial contradictorio, amistoso o por orden judicial, descontando lo que se le deba por privilegio en los precios respectivos de las mercancías y del material; el excedente, si lo hubiera, deberá quedar como garantía para los acreedores inscritos y, si no los hubiera, para los acreedores no privilegiados.
Artículo L141-8 El vendedor que ejerza la acción resolutoria deberá notificarla a los acreedores inscritos en el fondo de comercio,
en el domicilio elegido por ellos en sus inscripciones. La decisión judicial no podrá producirse hasta después de transcurrido un mes de dicha notificación.
Artículo L141-9 El vendedor que haya estipulado en el momento de la venta que, si no se efectuase el pago en el plazo convenido,
ésta quedaría anulada de pleno derecho, o el vendedor que haya obtenido del comprador una rescisión de modo amistoso, deberá notificar a los acreedores inscritos en los domicilios elegidos, la rescisión acordada o consentida, que no será definitiva hasta un mes después de realizada la debida notificación.
Artículo L141-10 Cuando la venta de un fondo de comercio se realice por medio de subasta pública por requerimiento de un
administrador judicial o de un mandatario judicial para la liquidación de las empresas, o bien judicialmente por requerimiento de cualquier otro derechohabiente, el demandante deberá notificarla a los vendedores anteriores, en el domicilio elegido en sus inscripciones, con la declaración de que al no haber iniciado ellos la acción resolutoria en el mes siguiente a la notificación han incurrido en caducidad en el derecho de ejercerla, con relación al adjudicatario.
Artículo L.141-11 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006)
Los artículos L.624-11 a L.624-18 no serán aplicables al privilegio ni a la acción resolutoria del vendedor de un fondo de comercio.
Artículo L.141-12 (Ley nº 2003-7 de 3 de enero de 2003 art. 50 II Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 161 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
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CÓDIGO DE COMERCIO No obstante las disposiciones relativas a la aportación en sociedad de los fondos de comercio recogidas en los
artículos L.141-21 y L.141-22, cualquier venta o cesión de fondo de comercio, acordada incluso bajo la condición o la forma de otro contrato, así como cualquier adjudicación de un fondo de comercio por reparto o subasta, deberá ser publicada, excepto si se realizara en aplicación del artículo L.642-5, en los quince primeros días siguientes a su fecha de celebración, a instancia del comprador, en forma de extracto o aviso en un periódico autorizado para recoger anuncios legales en la circunscripción o el departamento en el que se explote dicho fondo y, en los quince días a partir de esta publicación, en el Boletín oficial de anuncios civiles y comerciales. En cuanto a los negocios de venta ambulante, el lugar de explotación será aquel en cuyo Registro de Comercio y de Sociedades esté inscrito el vendedor.
Artículo L141-13 La publicación del extracto o del aviso, realizada por ejecución del artículo anterior, deberá ser precedida de la
inscripción en el Registro del acta que contenga el cambio de titular, o bien, a falta de acta, de la declaración prescrita en los artículos 638 y 653 del Código General de Impuestos, bajo pena de nulidad. Este extracto deberá, bajo pena de la misma sanción, señalar la fecha, el importe y el número de la percepción o, en caso de simple declaración, la fecha y el número del recibo de dicha declaración y, en ambos casos, la indicación de la oficina en la que han tenido lugar estas operaciones. Contendrá, además, la fecha del acta, los apellidos, los nombres y domicilios del antiguo y del nuevo propietario, la naturaleza y el lugar del fondo de comercio, el precio estipulado, incluidos los impuestos o la valoración que hayan servido de base para la percepción de los derechos de registro, la indicación del plazo fijado posteriormente para las posibles impugnaciones y la elección de un domicilio en la circunscripción del Tribunal.
Artículo L141-14 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
En los diez días siguientes a la última de las publicaciones citadas en el artículo L. 141-12, todo acreedor del propietario anterior, tanto si su crédito fuera o no exigible, podrá presentar su oposición al pago del precio, en el domicilio elegido y por simple documento extrajudicial. La oposición, bajo pena de nulidad, contendrá el importe y el origen del crédito y especificará una elección de domicilio en la circunscripción del emplazamiento del fondo de comercio. El arrendador no podrá presentar su oposición en relación a alquileres en curso o por vencer, salvo estipulación en contrario. No será oponible frente a los acreedores que se hayan dado a conocer en este plazo ninguna cesión amistosa o judicial del precio o de parte del precio.
Artículo L141-15 En caso de oposición al pago del precio, el vendedor podrá, en cualquier caso, recurrir a través de un
procedimiento sumario ante el presidente del Tribunal de grande instance , tras la expiración del plazo de diez días, con el fin de obtener la autorización para cobrar su precio, a pesar de la oposición, con la condición de depositar en la Caja de Depósitos y Consignaciones, o en manos de terceros designados a este efecto, una suma suficiente, determinada por el Juez de procedimientos sumarios, para responder eventualmente de las causas de oposición en el caso de se reconociera o fuera juzgado como deudor. El depósito así ordenado será destinado especialmente, en manos del tercero detentador, a garantizar las deudas objeto de la oposición y se les atribuirá sobre dicho depósito privilegio exclusivo sobre cualquier otra, sin que, sin embargo, pueda resultar de ello una cesión judicial en provecho del oponente o de los oponentes encausados con relación a otros acreedores oponentes del vendedor, si los hubiera. A partir de la ejecución de la resolución sumaria, el comprador quedará liberado y los efectos de la oposición serán transferidos al tercer detentador.
El Juez de procedimientos sumarios no concederá la autorización solicitada si no fuera justificada por una declaración formal del comprador encausado de que no existen más acreedores oponentes que aquéllos contra los que se ha procedido, realizada bajo su responsabilidad personal y de la que se levantará acta. El comprador, al ejecutar la
resolución, no estará liberado de su precio con relación a otros acreedores oponentes anteriores a dicha resolución, si los hubiera.
Artículo L141-16 Si la oposición hubiera sido formulada sin título y sin causa o fuera nula en su forma, y si no hubiera iniciada
instancia por cuestión principal, el vendedor podrá recurrir en procedimiento sumario ante el presidente del Tribunal de grande instance, para obtener la autorización de cobrar su precio, a pesar de la oposición.
Artículo L141-17 El comprador que pagara a su vendedor, sin haber efectuado las publicaciones en las formas prescritas, o antes de
la expiración del plazo de diez días, no estará liberado con respecto a terceros.
Artículo L141-18 Si la venta o transmisión de un fondo de comercio incluyera sucursales o establecimientos en el territorio francés,
la inscripción y la publicación prescritas en los artículos L. 141-6 a L. 141-17 deberán realizarse igualmente en un periódico autorizado para recibir anuncios legales en el lugar de la sede de estas sucursales o establecimientos.
Artículo L.141-19 (Ley nº 2005-845 de 26 de julio de 2005 art. 161 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Durante los veinte días siguientes a la publicación en el Boletín oficial de anuncios civiles y comerciales, tal como se prevé en el artículo L.141-12, se tendrá que dejar una copia legalizada o uno de los originales del documento de compraventa en el domicilio elegido, a la disposición de cualquier acreedor oponente o inscrito, para que este pueda
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CÓDIGO DE COMERCIO consultar dichos documentos sin necesidad de desplazarse.
Durante este mismo plazo, cualquier acreedor inscrito o que haya formulado oposición en el plazo de diez días fijado por el artículo L.141-14 podrá acceder al documento de venta y a las oposiciones formuladas en el domicilio elegido. Si el precio no bastase para resarcir a los acreedores inscritos y a los que se hayan revelado en las oposiciones, el acreedor podrá formular además una sobrepuja de la sexta parte del precio principal del fondo de comercio, sin incluir el material y las mercancías, con arreglo a lo dispuesto en los artículos L.141-14 a L.141-16.
No se admitirá la sobrepuja de la sexta parte tras la venta judicial de un fondo de comercio o la venta que hubiera sido realizada por requerimiento de un administrador judicial o de un mandatario judicial para la liquidación de empresas, o de copropietarios indivisos del fondo de comercio, y que hubiera sido realizada en subasta pública y según lo dispuesto por los artículos L.143-6 y L.143-7 o el artículo L.642-5.
El oficial público designado para proceder a la venta sólo deberá admitir en la puja a personas de reconocida solvencia, o que hayan depositado una suma, bien en sus manos, bien en la Caja de Depósitos y Consignaciones, con el destino específico del pago del precio, que no podrá ser inferior a la mitad del importe total de la primera venta, ni inferior a la porción del precio de dicha venta estipulada como pagadera al contado, aumentada por la puja.
La adjudicación por sobrepuja de la sexta parte tendrá lugar en las mismas condiciones y plazos que la venta que se haya hecho por subasta.
Si el comprador sobrepujado fuera desposeído a causa de la sobrepuja, deberá, bajo su responsabilidad, poner en manos del adjudicatario las oposiciones formuladas, a cambio de recibo, en los ocho días siguientes a la adjudicación, si no las hubiera dado a conocer anteriormente por medio de una anotación incluida en el pliego de condiciones. El efecto de esas oposiciones será sumado al precio de la adjudicación.
Artículo L141-20 Cuando el precio de la venta esté definitivamente fijado, haya habido o no sobrepuja, si no hubiera acuerdo entre
los acreedores para el reparto amistoso de su precio, el comprador estará obligado a consignar la porción exigible del precio, a petición de cualquier acreedor y en los quince días siguientes, y el excedente, a medida que pueda ser exigible, se destinará al pago de todas las oposiciones depositadas en sus manos, a las inscripciones que gravan el fondo y a las cesiones que se le hubieran notificado.
Artículo L141-21 Salvo si se tratara de una operación de fusión o de escisión, sujeta a las disposiciones del párrafo cuarto del
artículo L. 236-2 y de los artículos L. 236-7 a L. 236-22, toda aportación de un fondo comercial realizada a una sociedad en fase de constitución o ya existente deberá ser dada a conocer a terceros en las condiciones previstas en los artículos L. 141-12 a L. 141-18, por medio de la inserción en los periódicos de anuncios legales y en el Boletín oficial de anuncios civiles y comerciales.
No obstante, si a consecuencia de la aplicación de las disposiciones legislativas y reglamentarias vigentes relativas a la publicación de los actos de las sociedades, las indicaciones previstas por estos artículos figuraran ya en el número del periódico de anuncios legales en el que deberían efectuarse la inserciones, se podrá proceder por simple referencia a dicha publicación.
En estas inserciones, la elección de domicilio será sustituida por la indicación de la Secretaría del Tribunal de commerce en el que los acreedores del aportante deberán hacer la declaración de sus créditos.
Artículo L141-22 En los diez días siguientes a la fecha de la última de las publicaciones previstas en los artículos L. 141-12 y L.
141-13, todo acreedor del socio aportador no inscrito dará a conocer en la secretaría del Tribunal de commerce el emplazamiento del fondo, su condición de acreedor y la suma que se le debiera. El Secretario le entregará un recibo de su declaración.
Si los socios, o uno de ellos, no presentaran una solicitud de anulación de la sociedad o de la aportación, en los quince días siguientes, o si dicha anulación no se hubiera pronunciado, la sociedad estará obligada, solidariamente con el deudor principal, al pago del pasivo declarado en el plazo anteriormente citado y debidamente justificado.
En caso de aportación de un fondo comercial por parte de una sociedad a otra, especialmente a consecuencia de una fusión o de una escisión, las disposiciones del apartado anterior no serán aplicables cuando proceda aplicar los artículos L. 236-14, L. 236-20 y L. 236-21 o cuando se ejerza la facultad prevista en el artículo L. 236-22.
CAPITULO II De la pignoración del fondo de comercio Artículos L142-1 a
L142-5
Artículo L142-1 Los fondos de comercio podrán ser objeto de pignoraciones sin otra condición ni requisito formal que los prescritos
por el presente capítulo y por el capítulo III posterior. La pignoración de un fondo de comercio no dará derecho al acreedor pignoraticio a hacerse adjudicar el fondo de
comercio en pago hasta el tope del importe de lo que se le debe.
Artículo L142-2 Sólo son susceptibles de ser incluidos en la pignoración sujeta a las disposiciones del presente capítulo, como
formando parte de un fondo comercial: el rótulo y el nombre comercial, el derecho al contrato de arrendamiento, la clientela y el buen nombre, el mobiliario comercial, el material o el utillaje que sirva para la explotación del fondo de
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CÓDIGO DE COMERCIO comercio, las patentes de inventos, las licencias, las marcas, los dibujos y modelos industriales, y generalmente los derechos de propiedad intelectual vinculados a ellos.
El certificado de adición posterior a la pignoración que incluya la patente a la que se aplique seguirá la misma suerte de esta patente y forma parte, como ella, de la garantía constituida.
Si no hubiera un desglose expreso y preciso en el acta que la constituye, la pignoración sólo incluirá el rótulo, el nombre comercial, el derecho al arrendamiento, la clientela y el buen nombre.
Si la pignoración se hiciera sobre un fondo de comercio y sus sucursales, éstas deberán ser designadas con las indicaciones precisas de su emplazamiento.
Artículo L142-3 El contrato de prenda deberá ser consignado por escritura pública o por un documento privado debidamente
registrado. El privilegio resultante del contrato de pignoración quedará establecido simplemente con su inscripción en un
registro público depositado en la secretaría del Tribunal de commerce en cuya circunscripción sea explotado dicho fondo.
Se deberá cumplir el mismo requisito formal en la secretaría del Tribunal de commerce en cuya circunscripción se sitúen cada una de las sucursales del fondo de comercio incluidas en la pignoración.
Artículo L.142-4 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006)
La inscripción deberá ser efectuada, bajo pena de nulidad de la pignoración, en los quince días siguientes a la fecha del acto de constitución.
En caso de saneamiento judicial o liquidación judicial, serán aplicables a las pignoraciones de los fondos de comercio los artículos L.632-1 a L.632-4.
Artículo L142-5 El orden de prelación de los acreedores pignoraticios será determinado por la fecha de sus inscripciones. Los
acreedores inscritos en el mismo día estarán en concurrencia.
CAPITULO III Disposiciones comunes para la venta y la pignoración de los fondos de comercio Artículos L143-1 a
L143-23
Sección I De la ejecución de la prenda y del pago de las deudas inscritas Artículos L143-1 a
L143-15
Artículo L143-1 En caso de traslado del fondo de comercio, los créditos inscritos se harán exigibles de pleno derecho si el
propietario del fondo de comercio no hubiera dado a conocer a los acreedores inscritos su intención de trasladar el comercio y la nueva dirección en la que piense instalarlo, al menos quince días antes.
Dentro de los quince días posteriores a la notificación que se les hubiera remitido o dentro de los quince días siguientes al día en que ellos hayan tenido conocimiento del traslado, el vendedor o el acreedor pignoraticio deberá anotar, al margen de la inscripción existente, el nuevo local, y si el fondo de comercio ha sido trasladado a una nueva circunscripción, cambiar la fecha de la inscripción primitiva con la indicación de la nueva dirección, en el Registro del Tribunal de esta circunscripción.
El traslado del fondo de comercio sin el consentimiento del vendedor o de los acreedores pignoraticios podrá hacer exigibles las cantidades adeudadas anteriormente, si hubiera una depreciación del fondo de comercio.
La inscripción de una pignoración podrá igualmente hacer exigibles las cantidades adeudadas que tuvieran su origen en la explotación del fondo de comercio.
Las demandas presentadas ante el Tribunal de commerce en virtud de los dos apartados anteriores que hubieran incurrido en caducidad, serán sometidas a las reglas de procedimiento señaladas por el párrafo cuarto del artículo L. 143-4.
Artículo L143-2 El propietario que pretenda la rescisión del contrato de arrendamiento del inmueble en el que se explota un fondo
de comercio gravado por inscripciones registrales deberá notificar su demanda a los acreedores anteriormente inscritos, en el domicilio elegido por ellos en sus inscripciones. La decisión judicial no podrá producirse hasta después de transcurrido un mes de dicha notificación.
La rescisión amistosa del contrato de arrendamiento no será definitiva hasta un mes después de la notificación que se haya hecho a los acreedores inscritos en los domicilios elegidos.
Artículo L143-3 Todo acreedor que ejerza las acciones ejecutivas de embargo y el deudor contra el que se ejerzan podrán solicitar,
ante el Tribunal de commerce en cuya circunscripción se explotase el fondo de comercio, la venta del fondo de comercio del embargado con el material y las mercancías que dependan de él.
A petición del acreedor demandante, el Tribunal de commerce ordenará que se realice la venta del fondo de
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CÓDIGO DE COMERCIO comercio por falta de pago en el plazo concedido al deudor, tras el cumplimiento de los requisitos formales prescritos en el artículo L. 143-6.
Lo mismo ocurrirá si, por procedimiento iniciado por el deudor, el acreedor solicitara la venta del fondo de comercio.
Si no lo solicitara, el Tribunal de commerce fijará el plazo en el que deberá producirse la venta del fondo de comercio por requerimiento del deudor, siguiendo los requisitos formales promulgados por el artículo L. 143-6, y ordenará que, al no haber procedido el deudor a la venta en dicho plazo, se retomen y se continúen las diligencias de ejecución de embargo en el punto en que se hubieran suspendido.
Artículo L143-4 El Tribunal nombrará, si procede, a un administrador provisional del fondo de comercio, fijará su precio,
determinará las condiciones principales de la venta, designará a un oficial público que realice el pliego de condiciones para proceder a dicha venta.
La publicidad extraordinaria, cuando se considere útil, será regulada por decisión judicial, o, en su defecto, por resolución del presidente del Tribunal de commerce emitida en respuesta a una demanda.
Por esta resolución, este último podrá autorizar al demandante, si no hubiera otro acreedor inscrito u oponente, y previo descuento de los gastos privilegiados en beneficio de quien tenga derecho a ellos, a cobrar el precio directamente contra un simple recibo del adjudicatario, o del oficial público vendedor, según los casos, previa deducción o hasta el importe total de su deuda en capital, intereses y gastos.
El Tribunal de commerce resolverá, dentro de los quince días siguientes a la primera audiencia, en sentencia judicial no susceptible de oposición, directamente ejecutable. La apelación de la resolución será suspensiva. Se formulará dentro de los quince días siguientes a la comunicación a la parte y será juzgada por el Tribunal en el plazo de un mes. La sentencia será directamente ejecutable.
Artículo L143-5 El vendedor y el acreedor pignoraticio inscritos sobre un fondo de comercio podrán igualmente, incluso en virtud de
títulos en documentos privados, obligar a la venta del establecimiento que constituya su prenda, ocho días después del requerimiento de pago sin respuesta dirigido al deudor y al tercero detentador si lo hubiera.
La demanda será llevada ante el Tribunal de commerce en cuya circunscripción se explotase dicho fondo de comercio, el cual resolverá de acuerdo con lo dispuesto en el artículo L. 143-4.
Artículo L143-6 El demandante instará al propietario del fondo de comercio y a los acreedores inscritos antes de la resolución que
haya ordenado la venta, en el domicilio elegido por ellos en las inscripciones, y al menos quince días antes de la venta, a conocer el contenido del pliego de condiciones, a aportar sus declaraciones y observaciones y a asistir si así lo desean a la adjudicación.
La venta tendrá lugar al menos diez días después de la colocación de carteles en los que se indicará: los apellidos, profesiones, domicilios del demandante y del propietario del fondo de comercio, la decisión en virtud de la cual se actúa, una elección de domicilio en el lugar en el que se encuentra el Tribunal de commerce en cuya circunscripción se explote el fondo de comercio, los diversos elementos constitutivos de dicho fondo, la naturaleza de sus operaciones, su situación, los precios fijados, el lugar, el día y la hora de la adjudicación, los apellidos y el domicilio del oficial público adscrito y que será el depositario del pliego de condiciones.
Estos carteles serán obligatoriamente colocados, a instancia del oficial público, en la puerta principal del inmueble y del ayuntamiento en el que esté situado el fondo de comercio, del Tribunal de commerce en cuya circunscripición se explote el fondo, y en la puerta del despacho del oficial público encargado.
Este aviso será también publicado diez días antes de la venta en un periódico autorizado para publicar anuncios legales en la circunscripción o el departamento en el que se sitúe el fondo de comercio.
Se hará constar la publicidad por una anotación realizada en el documento de la venta.
Artículo L143-7 El presidente del Tribunal de grande instance en cuya circunscripción se explote el fondo de comercio resolverá, si
procede, sobre las causas de nulidad del procedimiento de venta anterior a la adjudicación y sobre los gastos. Estas causas tendrán que ser presentadas, bajo pena de caducidad, al menos ocho días antes de la adjudicación. Se aplicará el párrafo cuarto del artículo L. 143-4 a la resolución dada por el presidente.
Artículo L143-8 El Tribunal de commerce al que se ha sometido la demanda de pago de una deuda vinculada a la explotación de
un fondo de comercio, podrá ordenar en la misma resolución judicial, si decide condenar y si el acreedor lo requiere, la venta del fondo de comercio. Resolverá en los términos del párrafo primero y segundo del artículo L. 143-4 y determinará el plazo tras el cual se podrá diligenciar la venta si no se hubiera producido el pago,.
Las disposiciones del párrafo cuarto del artículo L. 143-4 y de los artículos L. 143-6 y L. 143-7 serán aplicables a la venta ordenada así por el Tribunal de commerce.
Artículo L143-9 Si el adjudicatario no ejecutara las cláusulas de adjudicación, el fondo de comercio será vendido en segunda
subasta, según las formas prescritas en los artículos L. L. 143-6 y L. 143-7. El mejor postor estará obligado, con respecto a los acreedores del vendedor y con respecto al propio vendedor,
por el importe de la diferencia entre su precio y el de la reventa en segunda subasta, sin poder reclamar el excedente,
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CÓDIGO DE COMERCIO si lo hubiera.
Artículo L143-10 No se procederá a la venta separada de uno o varios elementos de un fondo de comercio gravado con
inscripciones, demandada judicialmente o bien por embargo ejecutivo, o bien en virtud de las disposiciones del presente capítulo, hasta al menos diez días después de la notificación de la acción judicial a los acreedores que se hayan inscrito al menos quince días antes de dicha notificación, en el domicilio elegido por ellos en sus inscripciones. Durante este plazo de diez días, todo acreedor inscrito, haya o no vencido su deuda, podrá emplazar a los interesados ante el Tribunal de commerce en cuya circunscripción se explote el fondo de comercio, para solicitar que se proceda a la venta de todos los elementos del fondo de comercio, por requerimiento del demandante o por su propio requerimiento, en los términos y en conformidad de las disposiciones de los artículos L. 143-3 à L. 143-7.
El material y las mercancías serán vendidas al mismo tiempo que el establecimiento por tasaciones separadas, o por precios independientes si el pliego de condiciones obligara al adjudicatario a evaluarlos por medio de un peritaje.
Se procederá al desglose de los precios de coste para los elementos del fondo de comercio no gravados por privilegios inscritos.
Artículo L143-11 No será admitida ninguna puja cuando la venta haya tenido lugar en las formas prescritas por los artículos L.
141-19, L. 143-3 a L. 143-8, L. 143-10 y L. 143-13 a L. 143-15.
Artículo L143-12 Los privilegios del vendedor y del acreedor pignoraticio continuarán vinculados al establecimiento aunque pase a
manos de otras personas. Cuando la venta del fondo de comercio no se haya hecho por subasta pública de acuerdo con los artículos
mencionados en el artículo L.143-11, el comprador que quiera evitar las acciones judiciales de los acreedores inscritos, estará obligado, bajo pena de caducidad, antes de las diligencias o en los quince días siguientes al requerimiento de pago que se le haga, a notificarlo a todos los acreedores inscritos en las condiciones definidas por decreto.
Artículo L143-13 Todo acreedor inscrito como tal de un fondo de comercio podrá, cuando no sea aplicable el artículo L.143-11,
requerir su salida a subasta pública, ofreciendo abonar el precio principal, sin incluir el material y las mercancías, incrementado en una décima parte y proponiendo constituirse garante del pago de los precios y de las cargas o justificar su solvencia para ello.
Este requerimiento firmado por el acreedor, deberá, bajo pena de caducidad, comunicarse al comprador y al deudor anterior propietario, en los quince días siguientes a las notificaciones, con emplazamiento ante el Tribunal de commerce del lugar del establecimiento, para estar presente en el acto de resolución, en caso de recurso, sobre la validez de la subasta, la admisibilidad de la fianza o la solvencia del mejor postor, y asistir a la decisión judicial de salida a subasta pública del fondo de comercio con el material y las mercancías dependientes de él, y de requerimiento al comprador sobrepujado para que muestre su título y el acta de arrendamiento o cesión del arrendamiento al oficial público designado. El plazo de quince días anteriormente citado no será susceptible de prolongación en razón de la distancia entre el domicilio elegido y el domicilio real de los acreedores inscritos.
Artículo L143-14 A partir de la comunicación de la subasta, el comprador, si ya estuviera en posesión del fondo de comercio, será
administrador depositario por derecho y sólo podrá realizar actos de administración. Sin embargo, podrá solicitar al Tribunal de commerce o Juez competente en procedimientos sumarios, según el caso, en todo momento durante el procedimiento, la designación de otro administrador. Esta petición podrá ser hecha igualmente por cualquier acreedor.
El mejor postor no podrá, incluso pagando el importe de la oferta, impedir por desistimiento la adjudicación pública, si no es con el consentimiento de todos los acreedores inscritos.
Los actos formales del procedimiento y de la venta serán realizados a instancia del mejor postor y, en su defecto, de todo acreedor inscrito o del comprador, por cuenta y riesgo del mejor postor, quedando comprometida su fianza, según las reglas prescritas por los artículos L. 143-4, L. 143-5 a L. 143-7 y por el tercer apartado del artículo L. 143-10.
Si no hubiera subasta, el acreedor mejor postor será declarado adjudicatario.
Artículo L143-15 El adjudicatario estará obligado a hacerse cargo del material y de las mercancías que existan en el momento de la
toma de posesión, a los precios fijados por un peritaje amistoso o judicial, contradictoriamente entre el comprador sobrepujado, su vendedor y el adjudicatario.
Estará obligado también ante el comprador desposeído y a quien corresponda, al pago del precio de la adjudicación, a reembolsar por las costas y los gastos de escritura de su contrato, los de notificaciones, los de inscripción y publicidad previstos por los artículos L. 141-6 a L. 141-18, y por los gastos realizados para lograr la reventa.
El artículo L. 143-9 será aplicable a la venta y a la adjudicación por subasta. El comprador sobrepujado, que se haga adjudicatario a consecuencia de la reventa por subasta podrá recurrir por
derecho contra el vendedor, para cobrar el reembolso de la cantidad que sobrepase del precio estipulado por su título y del interés devengado desde el día de cada pago por este excedente.
Sección II
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CÓDIGO DE COMERCIO De los requisitos formales para la inscripción y la baja en el Registro Artículos L143-16 a
L143-20
Artículo L143-16 La inscripción y la cancelación registral del privilegio del vendedor o del acreedor pignoraticio estarán sujetas a
requisitos formales cuyas condiciones serán determinadas por decreto adoptado en Conseil d'Etat.
Artículo L143-17 Además de los requisitos formales para la inscripción mencionados en el artículo L. 143-16, las ventas o cesiones
de fondos de comercio que tengan marcas de fábrica y de comercio, diseños o modelos industriales, así como las pignoraciones de fondos de comercio que incluyan patentes de inventos o licencias, marcas o dibujos y modelos deberán inscribirse en el Instituto Nacional de la Propiedad Industrial, con la presentación del certificado de inscripción expedido por la secretaría del Tribunal de commerce, en los quince días siguientes a esta inscripción, bajo pena de nulidad con relación a terceros, de las ventas, cesiones, pignoraciones relativas a las patentes de invento y a las licencias, a las marcas de fábrica y de comercio, a los dibujos y modelos industriales.
Las patentes de inventos incluidas en la cesión de un fondo de comercio serán sometidas para su transmisión a las reglas promulgadas en los artículos L. 613-8 y siguientes del Código de la Propiedad Intelectual.
Artículo L143-18 Si el título del que resultara el privilegio inscrito estuviera a la orden, la negociación por vía de endoso conllevará la
transferencia del privilegio.
Artículo L143-19 La inscripción conservará el privilegio durante diez años a partir del día de su fecha. Su efecto terminará si no
hubiera sido renovada antes de la expiración de dicho plazo. La inscripción garantizará dos años de interés a la misma tasa que el principal.
Artículo L143-20 (Ley nº 2003-721 de 1 de agosto de 2003 Artículo 3 Diario Oficial de 5 de agosto de 2003)
Las inscripciones serán suprimidas, o bien por consentimiento de las partes interesadas y que tuvieran capacidad para ello, o bien en virtud de la sentencia con valor de cosa juzgada.
Si no hubiera sentencia, la baja total o parcial no podrá ser realizada por el secretario si no se hubiera depositado una escritura pública, o un documento privado debidamente registrado, de consentimiento de baja otorgada por el acreedor o su cesionario debidamente subrogado y que justificara sus derechos.
La baja total o parcial de la inscripción realizada en el Instituto Nacional de la Propiedad Industrial será efectuada por la presentación del certificado de baja expedido por el Secretario del Tribunal de commerce.
Sección III De los intermediarios y del reparto del precio Artículos L143-21 a
L143-23
Artículo L143-21 Todo tercero, que detente el precio de la adquisición de un fondo de comercio por haber sido domiciliatario, deberá
hacer el reparto del mismo en los tres meses posteriores a la fecha del acto de compraventa. Cuando este plazo expire, la parte más diligente podrá recurrir a través de un procedimiento sumario ante la
jurisdicción competente del lugar de la elección del domicilio, la cual decidirá el depósito del precio en la Caja de depósitos y consignación, o bien el nombramiento de un depositario repartidor.
Artículo L143-22 Cuando se decida la confiscación de un fondo de comercio por una jurisdicción penal, en aplicación de los artículos
225-16, 225-19 y 225-22 del Código Penal y 706-39 del Código de Proceso Penal, el Estado deberá proceder a la puesta en venta del establecimiento confiscado según las formas previstas por el presente título en un plazo de un año, salvo prórroga excepcional de dicho plazo por resolución del presidente del Tribunal de grande instance. Sólo estará obligado con relación a los acreedores hasta el importe del precio de venta de este fondo de comercio.
Esta puesta en venta deberá ser realizada en forma de un anuncio legal hecho al menos cuarenta y cinco días antes de la venta, tanto si ésta tuviera lugar por adjudicación como en forma amistosa.
Las garantías inscritas tras la fecha de la anotación de la apertura del sumario por una de las infracciones citadas en el primer apartado serán nulas de pleno derecho salvo decisión en contrario del Tribunal.
La autoridad administrativa podrá, en todo momento, solicitar que se determine el precio del alquiler con relación al índice correspondiente al valor de arrendamiento de los locales.
Cuando el propietario del fondo de comercio confiscado fuera al mismo tiempo propietario de los locales en los que se explotara el fondo, se deberá establecer un contrato de arrendamiento cuyas condiciones serán fijadas, si no hubiera acuerdo amistoso, por el presidente del Tribunal de grande instance, quien resolverá en las formas previstas para los arrendamientos de inmuebles o locales de uso comercial, industrial o artesanal.
Artículo L143-23 Un decreto adoptado en Conseil d'Etat determinará las medidas de ejecución de los capítulos I y II anteriores y del
presente capítulo, especialmente los emolumentos que serán asignados a los secretarios de los Tribunaux de
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CÓDIGO DE COMERCIO commerce, las condiciones en las que se efectuarán las inscripciones, bajas y expediciones de actas o certificados negativos que afecten a las ventas, cesiones o pignoraciones de los fondos de comercio que incluyan patentes de inventos o licencias, marcas de fábrica o comerciales, dibujos y modelos industriales, en el Instituto Nacional de la Propiedad Industrial.
Determinará, además, los derechos que percibirá el Conservatorio de artes y oficios, para el servicio del Instituto Nacional de la Propiedad Industrial, sobre las inscripciones y menciones de anterioridad, de subrogación y de baja, los estados de inscripción o certificados de que no existe ninguna de ellas.
CAPITULO IV Del arrendamiento de negocio Artículos L144-1 a
L144-13
Artículo L144-1 Salvo cláusula en contrario, todo contrato o acuerdo por el que el propietario o el que explota un fondo comercial o
un establecimiento artesanal, concediera total o parcialmente el arrendamiento a un gerente que lo explote por su cuenta y riesgo, deberá regirse por las disposiciones del presente capítulo.
Artículo L144-2 El arrendatario-gerente ostentará la condición de comerciante. Tendrá que someterse a las obligaciones que
deriven de ello. Cuando el fondo de comercio fuera un establecimiento artesanal, el arrendatario-gerente deberá estar inscrito en el
Registro central de artesanos y someterse a las obligaciones que deriven de ello.
Artículo L144-3 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 10 Diario Oficial de 27 de marzo de 2004)
Las personas físicas o jurídicas que concedan un arrendamiento de negocio deberán haber explotado durante al menos dos años el fondo de comercio o el establecimiento artesanal cedido en gerencia.
Artículo L144-4 El plazo previsto por el artículo L. 144-3 podrá ser suprimido o reducido por resolución del presidente del Tribunal
de grande instance dictada por simple requerimiento del interesado, previo dictamen del Ministerio Público, especialmente cuando éste justifique que se ve en la imposibilidad de explotar su fondo de comercio personalmente o por medio de encargados.
Artículo L144-5 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 10 Diario Oficial de 27 de marzo de 2004)
No será aplicable el artículo L. 144-3: 1º Al Estado; 2º A las entidades territoriales; 3° A los establecimientos de crédito; 4° A los mayores de edad que fueran objeto de una medida de protección legal o a las personas hospitalizadas por
causa de problemas mentales en las condiciones fijadas por los artículos L. 3211-2 y L. 3212-1 a L. 3212-12 del Código de la Salud Pública, en lo que se refiera al fondo de comercio del que fueran propietarios antes de la medida de protección legal o antes de producirse la hospitalización;
5° A los herederos o los legatarios de un comerciante o de un artesano fallecido, así como a derechohabientes de un ascendiente, en lo que se refiere al fondo de comercio;
6° A la entidad pública creada por el artículo L. 325-1 del Código de Urbanismo; 7º Al cónyuge adjudicatario del fondo de comercio o del fondo artesanal, tras la disolución del régimen matrimonial,
cuando dicho cónyuge hubiera participado en su explotación durante al menos dos años antes de la disolución del régimen matrimonial o de su partición; ;
8° Al arrendador del fondo de comercio, cuando el arrendamiento tenga como finalidad principal garantizar, por contrato de exclusividad, la comercialización al detalle de los productos fabricados o distribuidos por él mismo;
9° A los arrendadores de establecimientos dedicados a cine, teatro y espectáculos musicales.
Artículo L144-6 En el momento del arrendamiento de negocio, las deudas del arrendador del comercio correspondientes a la
explotación del comercio podrán ser declaradas inmediatamente exigibles por el Tribunal de commerce de la circunscripción del fondo de comercio, si estimase que el arrendamiento de negocio pondría en peligro su cobro.
La acción deberá ser iniciada, bajo pena de preclusión, en el plazo de tres meses desde la fecha de la publicación del contrato de gerencia en un periódico autorizado para publicar anuncios legales.
Artículo L144-7 Hasta la publicación del contrato de arrendamiento de negocio y durante un plazo de seis meses a contar desde la
fecha de dicha publicación, el arrendador del fondo de comercio será solidariamente responsable con el arrendatario gerente de las deudas contraídas por éste durante la explotación del fondo.
Artículo L144-8 Las disposiciones de los artículos L. 144-3, L. 144-4 y L. 144-7 no se aplicarán a los contratos de arrendamiento de
negocio realizados por administradores judiciales, encargados, a cualquier título, de la administración de un comercio, a
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CÓDIGO DE COMERCIO condición de que hayan sido autorizados a los fines de dichos contratos por la autoridad a la que representan y que hayan cumplido las medidas de publicidad previstas.
Artículo L144-9 La finalización del arrendamiento del fondo de comercio hará exigibles inmediatamente las deudas derivadas de la
explotación del fondo de comercio o del establecimiento artesanal, contraídas por el arrendatario gerente durante la etapa de su gerencia.
Artículo L144-10 Todo contrato de arrendamiento de negocio o cualquier otro acuerdo que conlleve cláusulas análogas, concedido
por el propietario o el que explote el fondo comercial que no cumpla las condiciones previstas por los artículos anteriores, será declarado nulo. Sin embargo los cocontratantes no podrán alegar esta nulidad frente a terceros.
La nulidad prevista en el apartado anterior conllevará, con relación a los cocontratantes, la caducidad de los derechos que eventualmente pudieran poseer en virtud de las disposiciones del capítulo V del presente título que regula las relaciones entre arrendadores y arrendatarios en lo referente a la renovación de los contratos de arrendamientos de inmuebles o de locales de uso comercial, industrial o artesanal.
Artículo L144-11 Si el contrato de arrendamiento constara de una cláusula de revisión-actualización, la revisión del contrato de
arrendamiento podrá, no obstante cualquier acuerdo en contrario, ser solicitada cada vez que, por ejecución de esta cláusula, este contrato de arrendamiento se vea aumentado o disminuido en más de una cuarta parte con relación al precio anteriormente fijado contractualmente o por decisión judicial.
Si uno de los elementos considerados para el cálculo de la cláusula de revisión-actualización desapareciera, la revisión sólo podrá ser solicitada y reclamada en justicia si las condiciones económicas se vieran modificadas hasta tal punto que conllevasen una variación de más de un cuarto del valor del arrendamiento del fondo de comercio.
Artículo L144-12 La parte que desee solicitar la revisión deberá notificarlo a la otra parte por carta certificada con acuse de recibo o
por documento extrajudicial. En ausencia de acuerdo amistoso, la instancia será presentada y juzgada en conformidad con las disposiciones
previstas en materia de revisión de precios de alquiler de inmuebles o de locales de uso comercial o industrial. El juez deberá adaptar el juego de la cláusula de revisión actualización al valor del alquiler del día de la notificación,
teniendo en cuenta todos los elementos de apreciación. El nuevo precio será aplicable a partir de esta misma fecha, a menos que las partes se hayan puesto de acuerdo antes o durante la instancia en una fecha anterior o más reciente.
Artículo L144-13 Las disposiciones de los artículos L. 144-11 y L. 144-12 no serán aplicables a las operaciones de leasing en
materia de fondos de comercio o establecimientos artesanales mencionados en el apartado 3 del artículo 1º de la Ley nº 66-455 de 2 de julio de 1966 relativa a las empresas que emplean el leasing.
Las disposiciones del artículo L. 144-9 no serán aplicables cuando el arrendatario del comercio que haya suscrito un contrato de arrendamiento por leasing de un fondo de comercio o de un establecimiento artesanal renunciara a la opción de compra.
CAPITULO V Del contrato de arrendamiento del local comercial Artículos L145-1 a
L145-60
Sección I Del ámbito de aplicación Artículos L145-1 a
L145-3
Artículo L145-1 I. - Las disposiciones del presente capítulo se aplicarán a los arrendamientos de inmuebles o locales en los que se
explota un fondo comercial, en los casos en que este negocio pertenezca a un comerciante, a un industrial inscrito en el Registro de Comercio y de Sociedades, o a un directivo de una empresa inscrito en el Registro central de artesanos, los cuales pudieran realizar o no actos de comercio, y además:
1º A los arrendamientos de locales o inmuebles accesorios a la explotación de un fondo de comercio cuando la privación de los mismos comprometiera la explotación del comercio y pertenezca al propietario del local o del inmueble en el que esté situado el establecimiento principal. En caso de pluralidad de propietarios, los locales accesorios deberán haber sido alquilados con conocimiento del arrendador para su utilización conjunta;
2º En los arrendamientos de los solares en los que se hayan edificado - antes o después del arrendamiento - construcciones para uso comercial, industrial o artesanal, a condición de que esas construcciones hayan sido realizadas o explotadas con el consentimiento expreso del propietario.
II. - Si el fondo de comercio fuera explotado bajo la forma de arrendamiento de negocio en aplicación del capítulo IV del presente título, el propietario del fondo de comercio se beneficiará sin embargo de las presentes disposiciones sin tener que justificar su inscripción en el Registro de Comercio y de Sociedades o en el Registro central de artesanos.
Artículo L145-3
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CÓDIGO DE COMERCIO Las disposiciones del presente capítulo no serán aplicables a los arrendamientos enfitéuticos, salvo en lo que
concierne a la revisión del precio del alquiler. Sin embargo serán aplicables en los casos previstos en los artículos L. 145-1 y L. 145-2, a los arrendamientos realizados por enfiteutas, con la salvedad de que la duración de la renovación concedida a sus subarrendatarios no tenga por efecto prolongar la ocupación de los locales más allá de la fecha de expiración del arrendamiento enfitéutico.
Sección II De la duración Artículos L145-4 a
L145-7
Artículo L145-4 La duración del contrato de arrendamiento no podrá ser inferior a nueve años. Sin embargo, si no se acuerda lo contrario, el arrendatario tendrá la facultad de cesar en el alquiler al expirar un
período trienal, en las formas y plazo del artículo L.145-9. El arrendador tendrá la misma facultad si pretendiese alegar las disposiciones de los artículos L. 145-18, L. 145-21
y L. 145-24 para construir, reconstruir, aumentar la altura del inmueble existente o efectuar obras requeridas o autorizadas en el marco de una operación de restauración inmobiliaria.
El arrendatario que haya solicitado el beneficio de sus derechos de jubilación del régimen social al que estaba afiliado o que haya sido autorizado a beneficiarse de una pensión de invalidez atribuida en el marco de este régimen social, tendrá la facultad de cesar en el arrendamiento en las formas y plazos del artículo L. 145-9.
Las disposiciones del párrafo anterior serán aplicables al socio único de una empresa unipersonal de responsabilidad limitada, o al gerente mayoritario desde un período al menos igual a dos años de una sociedad de responsabilidad limitada, cuando ésta sea la titular del arrendamiento.
Artículo L145-5 Las partes, en el momento de la entrada en el local del arrendatario, podrán no aplicar excepcionalmente las
disposiciones del presente capítulo a condición de que el contrato de arrendamiento sea firmado por una duración máxima de dos años.
Si al expirar este plazo, el arrendatario se quedase y se mantuviese en su posesión, se realizará un nuevo contrato de arrendamiento cuyo efecto será regulado por las disposiciones del presente capítulo.
Lo mismo sucederá en caso de renovación expresa del contrato de arrendamiento o de firma, entre las mismas partes, de un nuevo contrato de arrendamiento para el mismo local.
Las disposiciones de los dos apartados anteriores no serán aplicables si se tratara de un alquiler de carácter estacional.
Artículo L145-6 El arrendador de un local de uso comercial, industrial o artesanal podrá, en el transcurso de la duración del
contrato originario o de un contrato renovado, retomar la posesión de los lugares, en todo o en parte, para ejecutar obras que precisen la evacuación del local incluido en un sector o perímetro previsto en los artículos L. 313-3 y L. 313-4 del Código de Urbanismo y autorizadas o prescritas en las condiciones previstas en dichos artículos, si ofreciera trasladar el contrato de arrendamiento a un local equivalente en el mismo inmueble o en otro. Esta oferta deberá precisar las características del local ofrecido, que permitirá la continuidad del ejercicio de la actividad anterior del arrendatario. Esta oferta tendrá que ser notificada un año por adelantado.
El arrendatario deberá, en un plazo de dos meses, o bien dar a conocer su aceptación, o bien interponer ante la jurisdicción competente los motivos de su rechazo, si no lo hiciera se considerará que ha aceptado el ofrecimiento.
Artículo L145-7 El arrendatario cuyo contrato de arrendamiento sea trasladado a otro local tendrá derecho a una indemnización por
desposesión que incluirá la compensación por los perjuicios ocasionados por la privación temporal del uso del local, considerando, si procede, la instalación provisional realizada a cuenta del arrendador y el reembolso de los gastos normales de mudanza y reinstalación.
Cuando la oferta haya sido aceptada o reconocida como válida por la jurisdicción competente, y, tras la expiración del plazo de un año, a contar desde la ratificación de la oferta, el arrendatario deberá abandonar el lugar, en cuanto tenga a su disposición efectiva el local ofrecido y el pago de una indemnización provisional cuyo importe será determinado en las formas previstas en el artículo L. 145-19.
El importe y las condiciones accesorias del arrendamiento podrán ser modificadas a petición de la parte más diligente.
Sección III De la renovación Artículos L145-8 a
L145-13
Artículo L145-8 El derecho a la renovación del contrato de arrendamiento sólo podrá ser invocado por el propietario del fondo de
comercio que se explote en esos locales. El comercio transformado, llegado el caso, en las condiciones previstas en la sección 8 del presente capítulo,
deberá, salvo motivos legítimos, haber sido objeto de una explotación efectiva en el transcurso de los tres años
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CÓDIGO DE COMERCIO anteriores a la fecha de la expiración del contrato de arrendamiento o de su reconducción, tal y como está previsto en el artículo L.145-9, siendo esta última fecha la de denuncia, o si se hubiera hecho una solicitud de renovación, el plazo habitual que siga a esta solicitud.
Artículo L145-9 Por excepción a lo dispuesto en los artículos 1736 y 1737 del Código Civil, los arrendamientos de los locales sujeto
a las disposiciones del presente capítulo sólo cesarán por efecto de una rescisión formulada de acuerdo a los usos y costumbres locales y al menos seis meses por adelantado.
A falta de denuncia, el contrato de arrendamiento realizado por escrito continuará por tácita reconducción más allá del término fijado por el contrato, en conformidad con el artículo 1738 del Código Civil y no obstante lo previsto en el apartado anterior.
El contrato de arrendamiento que esté subordinado a un acontecimiento cuya realización autorice al arrendador a solicitar la rescisión no expirará, más allá de la duración de nueve años, salvo por efecto de una notificación hecha seis meses antes y para un cese de uso. Esta notificación deberá mencionar que se ha producido el acontecimiento previsto en el contrato.
En el caso de un arrendamiento que incluya varios períodos, si el arrendador denunciara el arrendamiento al final de los nueve primeros años o en el momento de la expiración de uno de los períodos siguientes, se rescindirá dicho arrendamiento en los plazos previstos en el párrafo primero.
La denuncia deberá ser notificada por documento extrajudicial. Deberá, bajo pena de nulidad, precisar los motivos por los que se produce e indicar que el arrendatario que pretenda, o bien recurrir dicha rescisión o solicitar el pago de una indemnización por evicción, deberá, bajo pena de preclusión, recurrir al Tribunal antes del plazo de dos años a partir de la fecha en la que se haya determinado dicha denuncia.
Artículo L145-10 A falta de denuncia, el arrendatario que quiera obtener la renovación de su contrato de arrendamiento deberá
solicitarlo en los seis meses que precedan a la expiración del contrato de arrendamiento, o, llegado el caso, en todo momento en el transcurso de su reconducción.
La solicitud de renovación deberá ser comunicada al arrendador por documento extrajudicial. Salvo estipulaciones o notificaciones en contrario por parte de éste, podrá ser válidamente dirigida, del mismo modo que a él, a la persona gerente a quien se considere con capacidad legal para recibirla. Si hay varios propietarios, la demanda dirigida a uno de ellos, será válida, con respecto a todos, salvo estipulaciones o notificaciones en contrario.
Deberá, bajo pena de nulidad, reproducir los términos del apartado siguiente. En los tres meses siguientes a la demanda de renovación, el arrendador, deberá, en las mismas formas, dar a
conocer al demandante si rechaza la renovación, precisando los motivos de su rechazo. Si no hubiera dado a conocer sus intenciones en ese plazo, se considerará que el arrendador ha aceptado el principio de renovación del contrato de arrendamiento anterior.
El documento extrajudicial que notifique la denegación de la renovación deberá, bajo pena de nulidad, indicar que el arrendatario que pretenda recurrir esta denegación de renovación, o bien solicitar el pago de una indemnización de evicción, deberá, bajo pena de preclusión, acudir al Tribunal antes de la expiración de un plazo de dos años, contados a partir de la fecha en la que le haya sido notificada la denegación de la renovación.
Artículo L145-11 El arrendador que, sin oponerse al principio de renovación, desee obtener una modificación del precio del
arrendamiento, deberá, en la notificación de denuncia prevista en el artículo L. 145-9 o en la respuesta a la solicitud de renovación prevista en el artículo L.145-10, dar a conocer el nuevo precio del arrendamiento que propone; si no lo hiciera, el nuevo precio no será efectivo hasta la solicitud que se haga ulteriormente, según las condiciones determinadas por decreto adoptado en Conseil d'Etat.
Artículo L145-12 La duración del contrato de arrendamiento renovado será de nueve años salvo que haya acuerdo de las partes
para una mayor duración. Las disposiciones del párrafo segundo y tercero del artículo L.145-4 serán aplicables en el transcurso del contrato
de arrendamiento renovado. El nuevo contrato de arrendamiento será efectivo a partir de la expiración del contrato anterior, o, llegado el caso,
de su reconducción. Esta última fecha será la de la notificación del desalojo, o bien - en el caso de haberse solicitado la renovación - el último día del plazo usual dicha solicitud.
Sin embargo, cuando el arrendador haya notificado, por medio de una denuncia o por una denegación de renovación, su intención de no renovar el contrato de arrendamiento, y si, posteriormente, decide la renovación, el nuevo contrato empezará a tener efecto el día en que esta aceptación haya sido notificada al arrendatario por documento extrajudicial.
Artículo L145-13 No obstante lo dispuesto por la Ley de 28 de mayo de 1943, relativa a la aplicación a los extranjeros de las leyes
en materia de contratos de arrendamientos urbanos y rústicos, las disposiciones de la presente sección no podrán ser alegadas por comerciantes, industriales o personas inscritas en el Registro central de artesanos, de nacionalidad extranjera, actuando directamente o por persona interpuesta, a menos que, durante las guerras de 1914 y de 1939, hayan combatido en el ejército francés o en el bando aliado, o que tengan hijos ciudadanos franceses.
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CÓDIGO DE COMERCIO El apartado anterior no será aplicable a los ciudadanos de un Estado miembro de la Comunidad Europea o de un
Estado parte en el Acuerdo sobre el Espacio Económico Europeo.
Sección IV De la denegación de la renovación Artículos L145-14 a
L145-30
Artículo L145-14 El arrendador podrá denegar la renovación del contrato de arrendamiento. Sin embargo, el arrendador deberá,
salvo las excepciones previstas en los artículos L. 145-17 y siguientes, pagar al arrendatario desalojado la llamada indemnización por evicción equivalente al perjuicio causado por la denegación de renovación.
Esta indemnización incluirá en particular el valor de mercado del fondo de comercio, determinado de acuerdo a la práctica profesional, aumentado eventualmente por los gastos normales de mudanza y de reinstalación, así como los gastos y derechos de traslado a un local del mismo valor, salvo en el caso en el que el propietario aporte pruebas de que el perjuicio es menor.
Artículo L145-15 Serán nulas de pleno derecho, cualquiera que sea su forma, las cláusulas, estipulaciones y arreglos que tengan
por efecto imposibilitar el ejercicio del derecho de renovación instituido por el presente capítulo o las disposiciones de los artículos L. 145-4, L. 145-37 a L. 145-41, del primer apartado del artículo L. 145-42 y de los artículos L. 145-47 a L. 145-54.
Artículo L145-16 Serán igualmente nulos de pleno derecho, cualquiera que sea su forma, los acuerdos susceptibles de prohibir al
arrendatario la cesión de su contrato de arrendamiento o de los derechos derivados del presente capítulo al comprador de su fondo comercial o de su empresa.
En caso de fusión de sociedades o de aportación de una parte del activo de una sociedad realizada en las condiciones previstas en el artículo L. 236-22, la sociedad nacida de la fusión o la sociedad beneficiaria de la aportación sustituirá, salvo estipulación en contrario, a aquélla en provecho de la cual se concedió el contrato de arrendamiento con todos los derechos y obligaciones que se derivaban de él.
En caso de cesión, de fusión o de aportación, si la obligación de garantía no pudiera ser asegurada en los términos del acuerdo, el Tribunal podrá sustituirlas por las que juzgue suficientes.
Artículo L145-17 I. - El arrendador podrá rechazar la renovación del contrato de arrendamiento sin estar obligado al pago de ninguna
indemnización. 1º Si justificara un motivo grave y legítimo en contra del arrendatario que debe abandonar el fondo. Sin embargo, si
se trata o bien de la no ejecución de una obligación, o bien del cese, sin razón seria y legítima de la explotación del fondo de comercio, considerando las disposiciones del artículo L. 145-8, la infracción cometida por el arrendatario sólo podrá ser alegada si es continuada y renovada más de un mes después de habérsele requerido por parte del arrendador a cesar en ella. Este requerimiento deberá, bajo pena de nulidad, ser efectuado por documento extrajudicial, precisar el motivo alegado y reproducir les términos del presente apartado;
2º Si se decidiera que el inmueble debe ser total o parcialmente demolido por estar en estado de insalubridad reconocido por la autoridad administrativa o se considerase que ya no puede ser ocupado sin riesgo a causa de su estado.
II. - En caso de reconstrucción por parte del propietario o de su derechohabiente de un nuevo inmueble que incluya locales comerciales, el arrendatario tendrá derecho de prioridad para su ocupación, en el inmueble reconstruido, en las condiciones previstas por los artículos L. 145-19 y L. 145-20.
Artículo L145-18 El arrendador tendrá derecho a rechazar la renovación del contrato cuando quiera construir o reconstruir el
inmueble existente, encargándose de pagar al arrendatario desalojado, la indemnización por evicción prevista en el artículo L. 145-14.
Asimismo, tendrá dicho derecho cuando quiera efectuar obras que necesiten la evacuación de los locales incluidos en un sector o perímetro previsto en los artículos L. 313-3 y L. 313-4 del Código de Urbanismo y autorizadas o prescritas en las condiciones previstas en dichos artículos.
Sin embargo el arrendador podrá sustraerse al pago de esta indemnización ofreciendo al arrendatario desalojado un local que corresponda a sus necesidades y posibilidades, situado en un emplazamiento equivalente.
Llegado el caso, el arrendatario percibirá una indemnización que compense la privación temporal del uso y la depreciación de su fondo de comercio. Será así mismo reembolsado por sus gastos normales de mudanza y reinstalación.
Cuando el arrendador invoque el beneficio del presente artículo, deberá, en el acta de denegación de la renovación o en la notificación de rescisión, citar las disposiciones del apartado 3 y precisar las nuevas condiciones de arrendamiento. El arrendatario deberá, en un plazo de tres meses, o bien, dar a conocer por documento extrajudicial su aceptación, o bien acudir a la jurisdicción competente en las condiciones previstas en el artículo L. 145-58.
Si las partes estuvieran solamente en desacuerdo sobre las condiciones del nuevo contrato de arrendamiento, éstas serán fijadas de acuerdo al procedimiento previsto en el artículo L. 145-56.
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CÓDIGO DE COMERCIO Artículo L145-19
Para beneficiarse del derecho de prioridad previsto en el artículo L. 145-17, el arrendatario deberá, al abandonar el local o, como máximo, en los tres meses siguientes, notificar su voluntad de hacer uso de él al propietario, por documento extrajudicial, dándole a conocer su nuevo domicilio. Deberá notificar del mismo modo, bajo pena de caducidad, todo nuevo cambio de domicilio.
El propietario que haya recibido tal notificación deberá, antes de arrendar u ocupar él mismo un nuevo local, notificar del mismo modo al arrendatario que está dispuesto a concluir un nuevo contrato de arrendamiento. A falta de acuerdo entre las partes sobre las condiciones de este contrato de arrendamiento, éstas serán determinadas según el procedimiento previsto en el artículo L. 145-56.
El arrendatario tendrá un plazo de tres meses para pronunciarse o recurrir a la jurisdicción competente. Este plazo deberá ser indicado, bajo pena de nulidad, en la notificación citada en el apartado anterior. Pasado este plazo, el propietario podrá disponer del local.
El propietario que no se plegara a las disposiciones de los apartados anteriores estará sujeto, por demanda de su arrendatario, al pago de la indemnización por daños y perjuicios en beneficio de este último.
Artículo L145-20 Cuando el inmueble reconstruido, en las condiciones previstas en el artículo L. 145-17, posea una superficie
superior a la del inmueble primitivo, el derecho de prioridad se limitará a locales que posean una superficie equivalente a la de los locales ocupados anteriormente o susceptibles de satisfacer las mismas necesidades comerciales que éstos últimos.
Cuando el inmueble reconstruido no permita la reinstalación de todos los ocupantes, la preferencia será concedida a los arrendatarios titulares de los arrendamientos más antiguos que hayan dado a conocer su intención de ocupar los locales.
Artículo L145-21 El propietario podrá igualmente diferir durante una duración máxima de tres años la renovación del contrato de
arrendamiento, si se propusiera aumentar la altura del inmueble y si esta obra hiciera necesaria la evicción temporal del arrendatario. Éste tendrá derecho en este caso a una indemnización igual al perjuicio causado sin poder exceder de los tres años de alquiler.
Artículo L145-22 El arrendador podrá denegar la renovación del contrato de alquiler exclusivamente sobre la parte que afecte a los
locales de vivienda accesorios a los locales comerciales para vivir él mismo o para que los habiten su cónyuge, sus ascendientes, sus descendientes, o los de su cónyuge, a condición de que el beneficiario de la recuperación del local no disponga de una vivienda que se adapte a sus necesidades normales y a las de los miembros de su familia que vivan habitualmente o estén domiciliados con él.
Sin embargo, la recuperación en las condiciones anteriormente indicadas no podrá ser ejercida en locales que se dediquen al uso de hotel o de alquiler de apartamentos amueblados, ni en locales de uso hospitalario o de enseñanza.
Del mismo modo, la recuperación no podrá ser ejercida cuando el arrendatario aporte la prueba de que la privación del uso de los locales de vivienda perturbaría gravemente la explotación del fondo o cuando los locales comerciales y los locales de vivienda formaran un todo indivisible.
Cuando el inmueble haya sido adquirido a título oneroso, el arrendador sólo podrá beneficiarse de las disposiciones del presente artículo si la fecha cierta de su acta de adquisición fuera anterior en al menos seis años a la denegación de la renovación.
El beneficiario del derecho de recuperación estará obligado a poner a disposición del arrendatario del cuál retoma el local, la vivienda que, llegado el caso, podría haber quedado vacía por el ejercicio de este derecho.
En el caso de recuperación parcial previsto en el presente artículo, el precio del contrato de arrendamiento renovado tendrá en cuenta el perjuicio causado al arrendatario o a su derechohabiente en el ejercicio de su actividad.
Salvo si existiera un motivo legítimo, el beneficiario de la recuperación deberá ocupar personalmente los locales en un plazo de seis meses a partir de la marcha del arrendatario desalojado y durante una duración mínima de seis años; de no ser así, el arrendatario desalojado tendrá derecho a una indemnización por evicción en relación a la importancia de los locales recuperados.
Artículo L145-23 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Las disposiciones del artículo L. 145-22 no serán aplicables a los arrendadores de nacionalidad extranjera, que actúen directamente o por persona interpuesta, a menos que hayan combatido en el ejército francés o en el del bando aliado durante las guerras de 1914 o 1939, o que tengan hijos ciudadanos Franceses.
El apartado anterior no será aplicable a los ciudadanos de un Estado miembro de la Comunidad Europea o de un Estado parte en el Acuerdo sobre el Espacio Económico Europeo.
Artículo L145-24 El derecho de renovación no será oponible al propietario que haya obtenido su permiso para construir un local de
vivienda sobre todo o parte de uno de los terrenos citados en el 2º del artículo L. 145-1. El derecho de recuperación sólo podrá ejercerse, de todos modos, sobre la parte del terreno indispensable para la
construcción. Si tuviera por efecto el cese obligatorio de la explotación comercial, industrial o artesanal, serán aplicables las disposiciones del artículo L.145-18.
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CÓDIGO DE COMERCIO Artículo L145-25
El propietario o el arrendatario principal que sea, al mismo tiempo, arrendador de los locales, y vendedor del fondo de comercio explotado en ellos y que haya recibido el precio íntegro por él, sólo podrá rechazar la renovación si accediera pagar la indemnización de evicción prevista en el artículo L. 145-14, salvo que presentara pruebas de un motivo reconocido como grave y legítimo en contra del arrendatario.
Artículo L145-26 La renovación de los contratos de arrendamiento que afecten a los inmuebles que pertenezcan al Estado, a los
departamentos, a los municipios y a las entidades públicas no podrá ser denegada sin que la entidad propietaria se vea obligada al pago de la indemnización por evicción prevista en el artículo L. 145-14, aunque su denegación tenga una justificación por una razón de utilidad pública.
Artículo L145-27 En el caso en que se demostrase que el arrendador sólo ha ejercido los derechos que le son conferidos en los
artículos L. 145-17 y siguientes para perjudicar fraudulentamente los derechos del arrendatario, en particular por operaciones de alquiler y reventa, tanto si estas operaciones tuvieran un carácter civil o comercial, el arrendatario tendrá derecho a una indemnización equivalente al importe del perjuicio sufrido.
Artículo L145-28 Ningún arrendatario que pueda aspirar a obtener una indemnización por evicción, podrá ser obligado a dejar los
locales hasta haberla recibido. Hasta el pago de la indemnización, tendrá derecho a mantenerse en el local en las mismas condiciones y cláusulas del contrato de arrendamiento expirado. Sin embargo, la indemnización de ocupación será determinada de acuerdo a las disposiciones de las secciones 6 y 7, teniéndose en cuenta todos los elementos de apreciación.
Por excepción al párrafo anterior en el único caso previsto en el segundo párrafo del artículo L. 145-18, el arrendatario deberá abandonar el local en cuanto reciba el pago de una indemnización provisional fijada por el presidente del Tribunal de grande instance, el cual resolverá a la vista de un peritaje previo ordenado en las formas fijadas por decreto adoptado en Conseil d'Etat, en aplicación del artículo L. 145-56.
Artículo L145-29 En caso de evicción, los locales deberán ser entregados al arrendador el primer día del plazo habitual de disfrute
que siga a la expiración del plazo de quince días a contar desde el pago de la indemnización al arrendatario mismo, en propias manos, o, eventualmente, a un depositario. Si no existiera acuerdo entre las partes, el depositario será nombrado por la resolución judicial que haya decidido la condena al pago de la indemnización o, en su defecto, por simple providencia ante requerimiento.
La indemnización será pagada por el depositario al arrendatario contra un simple recibo, si no hay oposición de los acreedores y contra la entrega de las llaves del local vacío, con el documento justificativo de haber pagado los impuestos, los pagos de los alquileres y a la espera de realizar las posibles reparaciones ordinarias a cargo del arrendatario.
Artículo L145-30 En caso de que no se entregaran las llaves en la fecha fijada y tras su requerimiento, el depositario retendrá un 1%
por cada día de retraso sobre el importe de la indemnización y devolverá esta retención al arrendador contra un simple recibo.
Cuando el plazo de quince días previsto en el artículo L. 145-58 haya finalizado sin que el arrendador haya hecho uso de su derecho al arrepentimiento, la indemnización de evicción deberá ser pagada al arrendatario o, eventualmente, a un depositario, en un plazo de tres meses a contar desde la fecha de una orden emitida por documento extrajudicial que deberá reproducir el presente párrafo, bajo pena de nulidad.
Sección V Del subarriendo Artículos L145-31 a
L145-32
Artículo L145-31 Salvo estipulación en contrario en el contrato de arrendamiento o salvo acuerdo del arrendador, estará prohibido
todo subarriendo, total o parcial,. En caso de subarriendo autorizado, el propietario será citado a acudir a la firma del contrato. Cuando el precio del subarriendo sea superior al precio del alquiler principal, el propietario tendrá la facultad de
exigir un aumento proporcional sobre el precio del alquiler principal, aumento que, si no hubiera acuerdo entre las partes, se determinará según un procedimiento fijado por decreto adoptado en Conseil d'Etat, en aplicación de las disposiciones del artículo L. 145-56.
El arrendatario deberá dar a conocer al propietario su intención de subarrendar por documento extrajudicial o por carta certificada con acuse de recibo. Dentro de los quince días siguientes a la recepción de este aviso o notificación, el propietario deberá dar a conocer si prevé acudir a la firma del contrato. Si, a pesar de la autorización prevista en el primer apartado, el arrendador se negara o si no respondiera, se hará caso omiso de él.
Artículo L145-32 El subarrendatario podrá solicitar la renovación de su contrato de arrendamiento al arrendatario principal en la
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CÓDIGO DE COMERCIO medida de los derechos que este último posea con relación al propietario. El arrendador será citado a acudir a la firma del contrato, como se prevé en el artículo L. 145-31.
En el momento de expiración del contrato del arrendamiento principal, el propietario sólo estará obligado a la renovación si hubiera autorizado o aceptado, expresa o tácitamente, el subarriendo y si, en caso de subarriendo parcial, los locales que sean objeto del arrendamiento principal no forman un todo materialmente indivisible o por acuerdo entre las partes.
Sección VI Del importe del alquiler Artículos L145-33 a
L145-40
Artículo L.145-33 (Ley nº 2001-1168 de 11 de diciembre de 2001 art. 33 V Diario Oficial de 12 de diciembre de 2001)
El importe de los alquileres de los contratos de arrendamiento renovados o actualizados deberá corresponder al valor real del arrendamiento.
En ausencia de acuerdo, este valor será determinado por: 1 Las características del local considerado; 2 El destino de los lugares; 3 Las obligaciones respectivas de las partes; 4 Los factores locales de comercialidad; 5 Los precios habituales propuestos en la zona; Un decreto adoptado en Conseil d'Etat precisará la magnitud de estos elementos.
Artículo L.145-34 (Ley nº 2001-1168 de 11 de diciembre de 2001 art. 33 VI Diario Oficial de 12 de diciembre de 2001)
Salvo que hubiera una modificación notable de los elementos mencionados en los apartados 1° a 4° del artículo L.145-33, el índice de variación del alquiler aplicable en el momento de renovar el contrato, siempre que su duración no fuera superior a nueve años, no podrá exceder de la variación sufrida por el índice nacional trimestral del coste de la construcción publicado por el Instituto Nacional de Estadística y de Estudios Económicos desde la determinación inicial del importe del alquiler en el contrato de arrendamiento expirado. Si no existiese cláusula contractual que fijara el trimestre de referencia de este índice, se tomará como referencia la variación del índice nacional trimestral del coste de la construcción, la cual se calculará por el periodo de nueve años anteriores al último índice publicado.
En caso de renovación posterior a la fecha inicialmente prevista para la expiración del contrato, esta variación será calculada a partir del último índice publicado, por un periodo de igual duración a la que hubiera transcurrido entre la fecha inicial del arrendamiento y la fecha de su renovación efectiva.
Las disposiciones del apartado anterior ya no serán aplicables cuando, por efecto de una tácita reconducción, la duración del arrendamiento sobrepase los doce años.
Artículo L145-35 Los litigios surgidos por la aplicación del artículo L. 145-34 serán sometidos a una comisión departamental de
conciliación, compuesta en igual número de arrendadores y arrendatarios y de personas cualificadas. La comisión se esforzará por conciliar a las partes y emitirá su dictamen.
Si el Juez entrara a conocer paralelamente a la comisión competente por una u otra de las partes, no podrá decidir hasta que la comisión no haya dado su opinión.
La comisión será declarada incompetente cuando no haya dado su opinión en un plazo de tres meses. La composición de la comisión, el modo de nombramiento de sus miembros y sus normas de funcionamiento serán
fijados por decreto.
Artículo L145-36 Los elementos que permitirán determinar el precio de los arrendamientos de terrenos, locales construidos para una
determinada utilización y locales de uso exclusivo de oficinas serán fijados por decreto adoptado en Conseil d'Etat.
Artículo L145-37 Los precios de los alquileres de inmuebles o locales regidos por las disposiciones del presente capítulo, renovados
o no, podrán ser actualizados por demanda de una u otra de las partes, no obstante lo previsto en los artículos L. 145-38 y L. 145-39 y en las condiciones fijadas por decreto adoptado en Conseil d'Etat.
Artículo L.145-38 (Ley nº 2001-1168 de 11 de diciembre de 2001 art. 26 Diario Oficial de 12 de diciembre de 2001)
La demanda de revisión sólo podrá presentarse después de transcurridos tres años desde el comienzo del disfrute del arrendatario o desde la fecha de entrada en vigor del contrato renovado.
Se podrán formular nuevas demandas cada tres años a contar desde el día en que el nuevo precio sea aplicable. Por excepción a lo dispuesto en el artículo L.145-3 y a menos que sea aportada la prueba de una modificación
material de los factores locales de comercialidad que haya conllevado por sí misma una variación de más del 10% del valor del alquiler, el aumento o la disminución del precio del alquiler consecutivos a una revisión trienal no podrá exceder de la variación del índice trimestral del coste de la construcción sufrida desde la última determinación amistosa o judicial del importe del alquiler.
En ningún caso se tendrán en cuenta, para el cálculo del valor del alquiler, inversiones del arrendatario ni
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CÓDIGO DE COMERCIO plusvalías o depreciaciones derivadas de su gestión durante el contrato de arrendamiento en curso.
Artículo L145-39 Además, no obstante lo dispuesto en el artículo L. 145-38, si el contrato de alquiler incluyera una cláusula de
revisión-actualización, la revisión podrá ser solicitada cada vez que, por el efecto de esta cláusula, el importe del alquiler se vea aumentado o disminuido en más de una cuarta parte con relación al precio fijado anteriormente de modo contractual o por decisión judicial.
Artículo L145-40 Los alquileres pagados por adelantado, sea cual fuere su forma, e incluso a título de garantía, devengarán
intereses a favor del arrendatario, al tipo aplicado por el Banco de Francia para los prestamos con garantía bursátil, en las sumas que sobrepasen a la correspondiente al precio del alquiler de más de dos mensualidades.
Sección VII De la rescisión Artículos L145-41 a
L145-46
Artículo L145-41 Toda cláusula incluida en el contrato de arrendamiento que prevea la rescisión de pleno derecho, no producirá
efecto hasta un mes después de todo tipo de requerimiento que haya quedado sin respuesta. La orden deberá, bajo pena de nulidad, mencionar este plazo.
Los jueces competentes en una demanda presentada en las formas y condiciones previstas en los artículos 1244-1 al 1244-3 del Código Civil podrán, concediendo plazos, suspender la realización y los efectos de las cláusulas de rescisión, cuando la rescisión no haya sido constatada u ordenada por una decisión judicial que haya adquirido el valor de cosa juzgada. La cláusula resolutoria no tendrá efecto si el arrendatario se liberase en las condiciones fijadas por el Juez competente.
Artículo L145-42 Las cláusulas de rescisión de pleno derecho por cese de la actividad, dejarán de tener efecto durante el tiempo
necesario para la realización de las transformaciones hechas en aplicación de las disposiciones de la sección 8. Este plazo no podrá sobrepasar los seis meses a contar desde el acuerdo sobre el cambio de la actividad
comercial o de la decisión judicial que lo autorice.
Artículo L145-43 Estarán dispensados de la obligación de explotar comercialmente, durante la duración de su curso formativo, los
comerciantes y personas inscritas en el Registro central de artesanos, arrendatarios del local en el que está situado su fondo de comercio, que sean admitidos a realizar un curso de readaptación profesional o un curso de cualificación de acuerdo con el artículo L. 900-2 (3º y 5º) del Código de Trabajo, cuya duración mínima será fijada por resolución y cuya duración máxima no podrá exceder de un año, salvo si se tratara de un curso llamado de "promoción" que se beneficie de la autorización prevista en el artículo L. 961-3 de dicho Código.
Artículo L145-44 En el caso de que, al finalizar uno de los cursos previstos en el artículo L. 145-43, el comerciante o el artesano
dejara el local que arrienda para reconvertir su actividad, transfiriéndola a otro local o para iniciar una actividad asalariada, la rescisión del contrato se producirá de pleno derecho, sin indemnización, al expirar un plazo de tres meses a partir del día en que haya sido comunicada al arrendador.
Artículo L145-45 La suspensión de pagos o la liquidación judicial no conllevarán de pleno derecho la rescisión del contrato de
arrendamiento de los inmuebles correspondientes a la industria, al comercio o al la empresa de artesanía del deudor, incluidos los locales que dependan de estos inmuebles y sirvan de vivienda para él o su familia. Toda estipulación en contrario se tendrá por no puesta.
Artículo L145-46 Cuando el arrendador sea a la vez propietario del local y del fondo de comercio que se explote en él y el contrato
de arrendamiento se refiera a ambos, deberá pagar al arrendatario, cuando éste abandone la explotación del local, una indemnización que sea proporcional al beneficio que el propietario pueda obtener gracias a la plusvalía aportada por el arrendatario, ya sea al fondo de comercio, ya sea al valor de alquiler del inmueble en razón de las mejoras materiales efectuadas por el arrendatario con el acuerdo expreso del propietario.
Sección VIII Del cambio de actividad en el local comercial Artículos L145-47 a
L145-55
Artículo L145-47 El arrendatario podrá añadir a la actividad prevista en el contrato de arrendamiento actividades afines o
complementarias. Para ello, deberá dar a conocer su intención al propietario por medio de documento extrajudicial, indicando las
actividades que prevea ejercer. Este acto formal tiene el valor de requerimiento al propietario para que dé a conocer en
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CÓDIGO DE COMERCIO un plazo de dos meses, bajo pena de caducidad, si recurre el carácter conexo o complementario de estas actividades. En caso de recurso, el Tribunal de grande instance que conozca a instancia de la parte más diligente se pronunciará, fundamentalmente, en función de la evolución de los usos y costumbres comerciales.
En la primera revisión trienal después de la notificación citada en el apartado anterior, se podrá, no obstante lo dispuesto en el artículo L. 145-38, tener en cuenta para la fijación del importe del alquiler, las actividades comerciales añadidas, si éstas hubieran conllevado por sí mismas una modificación del valor de arrendamiento de los locales alquilados.
Artículo L145-48 El arrendatario podrá a petición propia, ser autorizado a ejercer en los locales alquilados una o varias actividades
diferentes a las previstas en el contrato de arrendamiento, considerando la coyuntura económica y las necesidades de la organización racional de la distribución, cuando sus actividades sean compatibles con el destino, las características y la situación del inmueble o del conjunto inmobiliario.
Sin embargo, el primer arrendatario de un local incluido en un conjunto que constituya una unidad comercial definida por un programa de construcción no podrá prevalerse en esta facultad durante un plazo de nueve años a contar desde la fecha del comienzo de su uso y disfrute.
Artículo L145-49 La petición al arrendador deberá, bajo pena de nulidad, incluir la indicación de las actividades que prevea ejercer.
Tendrá la forma de documento extrajudicial y será comunicada, en la misma forma a los acreedores inscritos sobre el fondo de comercio. Estos últimos podrán solicitar que el cambio de actividad se subordine a condiciones susceptibles de salvaguardar sus intereses.
El arrendador deberá, dentro del mes siguiente a esta demanda, comunicarla en la misma forma, a aquéllos de sus arrendatarios con los que estuviera comprometido a no alquilar para el ejercicio de actividades similares a las citadas en la demanda. Éstos deberán, bajo pena de preclusión, dar a conocer su postura dentro del mes siguiente a la notificación.
Si el arrendador, en los tres meses siguientes a la demanda, no hubiera comunicado su denegación, su aceptación o incluso las condiciones a las que subordina su acuerdo, se considerará que ha aceptado la demanda. Esta aceptación no será obstáculo para el ejercicio de los derechos previstos en el artículo L. 145-50.
Artículo L145-50 El cambio de actividad podrá motivar el pago, a cargo del arrendatario, de una indemnización igual al importe del
perjuicio cuya existencia determine el arrendador. Éste último podrá, además, como contrapartida de la ventaja obtenida, solicitar en el momento de la transformación
la modificación del precio del alquiler sin que haya que aplicar las disposiciones de los artículos L. 145-37 a L. 145-39. Los derechos de los acreedores inscritos sobre el fondo de comercio transformado se ejercerán con el orden de
prelación anterior,
Artículo L145-51 Cuando el arrendatario que hubiera solicitado beneficiarse de sus derechos de jubilación o que hubiera sido
autorizado a beneficiarse de una pensión de invalidez atribuida por el régimen de seguros de invalidez-fallecimiento de los profesionales de la artesanía o de los profesionales industriales y comerciales, comunique a su propietario y a los acreedores inscritos sobre el fondo comercial su intención de ceder su contrato de arrendamiento, precisando la naturaleza de las actividades proyectadas, así como el precio propuesto, el arrendador, en un plazo de dos meses, tendrá derecho de tanteo en las condiciones determinadas en la comunicación. Si el arrendador no hiciera uso de este derecho, su acuerdo se considerará admitido si, en el mismo plazo de dos meses, no recurriera al Tribunal de grande instance.
La naturaleza de las actividades cuyo ejercicio se prevea tendrá que ser compatible con el destino, las características y la situación del inmueble.
Las disposiciones del presente artículo serán aplicables al socio único de una empresa unipersonal de responsabilidad limitada, o al gerente mayoritario desde al menos dos años antes de una sociedad de responsabilidad limitada, cuando ésta sea titular del contrato de arrendamiento.
Artículo L145-52 El Tribunal de grande instance podrá autorizar la transformación total o parcial, a pesar de la denegación del
arrendador, si esta denegación no estuviera justificada por un motivo grave y legítimo. Si el desacuerdo se centrara solamente en el precio del alquiler, éste será fijado en conformidad con las
disposiciones reglamentarias previstas para la determinación del precio de los alquileres revisados. En los demás casos, el asunto se llevará ante el Tribunal.
Artículo L145-53 La denegación de la transformación estará suficientemente motivada si el arrendador justificara que prevé retomar
el local cuando expire el período trienal en curso, bien en aplicación de los artículos L. 145-18 a L. 145-24, bien con vistas a ejecutar obras prescritas o autorizadas en el marco de una operación de renovación urbana o de restauración inmobiliaria.
El arrendador que haya alegado falsamente uno de los motivos previstos en el apartado anterior o que no haya cumplido las condiciones por las que el arrendatario ha rechazado la demanda, no podrá oponerse a una nueva demanda de transformación de actividad, salvo por motivos graves y legítimos, a menos que la no ejecución no le sea
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CÓDIGO DE COMERCIO imputable. Podrá, además, ser condenado a pagar al arrendatario una indemnización en razón del perjuicio sufrido por este último.
Artículo L145-54 No se tendrá en cuenta la plusvalía conferida al fondo de comercio por la transformación prevista en el artículo L.
145-48, cuando el inmueble en el que se explote el fondo de comercio deba ser demolido o restaurado, o cuando el fondo deba ser expropiado en el marco de una operación de renovación o de restauración inmobiliaria decidida menos de tres años después de la demanda prevista en el apartado 1 de dicho artículo.
Artículo L145-55 En cualquier momento y hasta la expiración de un plazo de quince días a contar desde la fecha en la que la
decisión judicial haya tomado valor de cosa juzgada, el arrendatario que haya formulado una demanda de conformidad con los artículos L. 145-47, L. 145-48 o L. 145-49 podrá renunciar a ello previa notificación al arrendador por documento extrajudicial y, en tal caso pagará las costas de la instancia.
Sección IX Del procedimiento Artículos L145-56 a
L145-60
Artículo L145-56 Las reglas de competencia y de procedimiento de los conflictos relativos al arrendamiento serán determinados por
decreto adoptado en Conseil d'Etat.
Artículo L145-57 Durante el transcurso de la instancia relativa a la determinación del precio del alquiler actualizado o renovado, el
arrendatario estará obligado a continuar pagando las mensualidades vencidas al precio antiguo o, llegado el caso, al precio que, en cualquier caso, podrá fijar a título provisional la jurisdicción que conozca, salvo acuerdo sobre las cuentas entre el arrendador y el arrendatario, tras la fijación definitiva del precio del alquiler.
En el plazo de un mes tras la comunicación de la decisión definitiva, las partes firmarán un nuevo contrato en las condiciones fijadas judicialmente, a menos que el arrendatario renuncie a la renovación o que el arrendador la rechace, soportando las costas la parte que haya mostrado el desacuerdo. Si el arrendador no hubiera enviado en este plazo dado para la firma del arrendatario el proyecto del contrato conforme a la decisión anteriormente citada o, si no hubiera acuerdo en el mes siguiente a este envío, la resolución que fija el precio o las condiciones del nuevo contrato tendrá la validez de contrato.
Artículo L145-58 El propietario, hasta la expiración de un plazo de quince días contados a partir de la fecha en la que la decisión
adquiriese el valor de cosa juzgada, podrá sustraerse al pago de la indemnización, si soporta los gastos de la instancia y concede la renovación del contrato cuyas condiciones, en caso de desacuerdo, serán fijadas de conformidad con las disposiciones reglamentarias tomadas a este efecto. Este derecho sólo podrá ser ejercido si el arrendatario está aún en el local y no ha alquilado o comprado ya otro inmueble destinado a su reinstalación.
Artículo L145-59 La decisión del propietario de rechazar la renovación del contrato del alquiler, en aplicación del último apartado del
artículo L. 145-57, o de sustraerse al pago de la indemnización, en las condiciones previstas en el último apartado del artículo L. 145-58, será irrevocable
Artículo L145-60 Todas las acciones ejercidas en virtud del presente capítulo prescribirán a los dos años.
CAPITULO VI De los gerentes-mandatarios Artículos L146-1 a
L146-4
Artículo L.146-1 (introducido por la Ley nº 2005-882 de 2 de agosto de 2005 art. 19 Diario Oficial de 3 de agosto de 2005)
Las personas físicas o jurídicas que gestionen un fondo de comercio o un fondo artesanal, a cambio del pago de una comisión proporcional a la cifra de negocios del fondo, recibirán la denominación de "gerentes-mandatarios" cuando suscriban un contrato con el mandante por cuenta del cual estas gestionen el fondo, eventualmente a través de una agrupación, y cuando en virtud de dicho contrato, en el que el mandante sigue siendo el propietario del fondo y soporta los riesgos derivados de su explotación, se les atribuya la misión -dentro de los límites previamente establecidos- de determinar libremente sus propias condiciones laborales, contratar personal y encontrarse sustitutos para reemplazarlos en el ejercicio de sus funciones con cargo a ellos mismos y bajo su entera responsabilidad.
El gerente-mandatario estará inscrito en el Registro de Comercio y de Sociedades y, en su caso, en el Registro Central de Artesanos. El contrato será mencionado en el Registro correspondiente y será publicado en un periódico autorizado para publicar anuncios legales.
Lo dispuesto en el presente capítulo no será de aplicación a las profesiones reguladas por el capítulo II del título VIII del libro VII del Código de Trabajo.
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CÓDIGO DE COMERCIO Artículo L.146-2 (introducido por la Ley nº 2005-882 de 2 de agosto de 2005 art. 19 Diario Oficial de 3 de agosto de 2005)
Antes de la firma del contrato, el mandante entregará al gerente-mandatario toda la información necesaria para el desempeño de su misión, de conformidad con lo establecido por decreto, permitiendo de esta forma que el mismo pueda comprometerse con conocimiento de causa.
Artículo L.146-3 (introducido por la Ley nº 2005-882 de 2 de agosto de 2005 art. 19 Diario Oficial de 3 de agosto de 2005)
Mediante convenio marco suscrito entre el mandante y sus gerentes-mandatarios, o los representantes de los mismos, se fijará el importe de la comisión mínima garantizada en todos los contratos de gerencia-mandato suscritos por dicho mandante. Esta comisión mínima tendrá en cuenta la magnitud del establecimiento en cuestión y las modalidades de explotación del mismo.
En ausencia de convenio marco, el Ministro competente en materia de pequeñas y medianas empresas fijará dicha comisión mínima.
Artículo L.146-4 (introducido por la Ley nº 2005-882 de 2 de agosto de 2005 art. 19 Diario Oficial de 3 de agosto de 2005)
El contrato entre el mandante y el gerente-mandatario podrá rescindirse en cualquier momento con arreglo a las condiciones establecidas por las partes. No obstante, en caso de rescisión del contrato por parte del mandante, salvo que el gerente-mandatario hubiera cometido una falta grave, el mandante deberá abonarle una indemnización que, en ausencia de condiciones más favorables establecidas por las partes, será igual al importe de las comisiones cobradas, o a la comisión mínima garantizada mencionada en el artículo L.146-3, durante los seis meses anteriores a la rescisión del contrato, o durante el periodo de ejecución del contrato si este fuera inferior a seis meses.
LIBRO II DE LAS SOCIEDADES MERCANTILES Y DE LAS AGRUPACIONES DE INTERÉS ECONÓMICO
Artículos L210-1 a L252-13
TITULO I DISPOSICIONES PRELIMINARES Artículos L210-1 a
L210-9
Artículo L210-1 El carácter mercantil de una sociedad viene dado por su forma o por su objeto. Serán mercantiles en razón de su forma y sea cual fuere su finalidad, las sociedades colectivas, las sociedades
comanditarias simples, las sociedades de responsabilidad limitada y las sociedades por acciones.
Artículo L210-2 La forma, la duración que no podrá exceder de noventa y nueve años, la denominación social, la sede social, el
objeto social y el importe del capital social se fijarán en los estatutos de la sociedad.
Artículo L210-3 Las sociedades cuya sede social esté situada en territorio francés se someterán a la Ley francesa. Los terceros podrán hacer valer la sede estatutaria, pero la sociedad no podrá alegarla frente a terceros, si su sede
real está situada en otro lugar.
Artículo L210-4 Las requisitos formales de publicidad exigidos en la constitución de la sociedad o para los actos y deliberaciones
posteriores, se fijarán por decreto adoptado en Conseil d'Etat.
Artículo L210-5 En lo que se refiera a las operaciones de las sociedades de responsabilidad limitada y de las sociedades por
acciones realizadas antes del décimo sexto día de la publicación en el Boletín Oficial de anuncios civiles y comerciales, cuyas actas e indicaciones deban someterse a esta publicidad, no podrán ser alegadas frente a terceros que prueben que les ha sido imposible tener conocimiento de ellas.
Si en la publicidad de las actas e indicaciones que se refieran a las sociedades de responsabilidad limitada y a las sociedades por acciones, se produjera discordancia entre el texto depositado en el Registro de Comercio y de Sociedades y el texto publicado en el Boletín oficial de anuncios civiles y comerciales, éste último no podrá oponerse frente a terceros; éstos, sin embargo sí podrán ampararse en él, a no ser que la sociedad pruebe que tuvieron conocimiento del texto depositado en el Registro de Comercio y de Sociedades.
Artículo L210-6 Las sociedades mercantiles gozarán de personalidad jurídica desde la fecha de su inscripción en el Registro de
Comercio y de Sociedades. La transformación legal de una sociedad no conllevará la creación de una nueva persona jurídica. Lo mismo sucederá en caso de prórroga de la misma.
Las personas que hayan actuado en nombre de una sociedad en fase de constitución antes de que haya adquirido personalidad jurídica, estarán personal y solidariamente obligadas por los actos realizados, a menos que la sociedad asuma los compromisos suscritos tras haber sido válidamente constituida e inscrita. Se considerará entonces que estos compromisos han sido suscritos desde el inicio por la sociedad.
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CÓDIGO DE COMERCIO Artículo L210-7
Se procederá a la inscripción de la sociedad tras la comprobación de la validez de su constitución en las condiciones previstas por las disposiciones legislativas y reglamentarias relativas al Registro de Comercio y de Sociedades, por parte del Secretario del Tribunal competente.
Si los estatutos no contuvieran todas las declaraciones exigidas por la Ley y los reglamentos, o si una formalidad prescrita por éstos para la constitución de la sociedad hubiera sido omitida o irregularmente realizada, todo interesado podrá demandar judicialmente que se ordene la regularización de su constitución, bajo pena de multa. El Ministerio Público también estará legitimado para actuar con este fin.
Se aplicarán las disposiciones de los apartados anteriores en el supuesto de modificación de los estatutos. La acción prevista en el segundo apartado prescribirá a los tres años a partir de la fecha de su inscripción en el
Registro de Comercio y de Sociedades, o de la de la inscripción modificativa en dicho registro y de su depósito, en anexo de dicho registro, de los actos que modifiquen los estatutos.
Artículo L210-8 Los fundadores de la sociedad, así como los primeros miembros de los órganos de gestión, de administración, de
dirección y de supervisión, serán solidariamente responsables del perjuicio causado por la falta de alguna anotación obligatoria en los estatutos, así como por la omisión o cumplimiento irregular de algún acto formal prescrito por la Ley y los reglamentos para la constitución de la sociedad.
Las disposiciones del párrafo anterior serán aplicables, en caso de modificación de los estatutos, a los miembros de los órganos de gestión, de administración, de dirección, de supervisión y de control, que estén en activo en el momento de dicha modificación.
La acción prescribirá a los diez años a partir de la realización de uno u otro, según el caso, de las requisitos formales citadas en el párrafo cuarto del artículo L. 210-7.
Artículo L210-9 Ni la sociedad ni los terceros podrán ampararse, para sustraerse a sus obligaciones, en una irregularidad en la
designación de las personas encargadas de gestionar, administrar o dirigir la sociedad, cuando esta designación haya sido publicada debidamente.
La sociedad no podrá alegar frente a terceros, las designaciones o les ceses en sus funciones de las personas citadas anteriormente, en tanto que no hayan sido publicados válidamente.
TITULO II DISPOSICIONES PARTICULARES RELATIVAS A LAS DIVERSAS SOCIEDADES
MERCANTILES Artículos L221-1 a L229-15
CAPITULO I De las sociedades colectivas Artículos L221-1 a
L221-17
Artículo L221-1 Todos los socios colectivos tendrán la condición de comerciantes y responderán personal y solidariamente de las
deudas sociales con todos sus bienes. Los acreedores de la sociedad únicamente podrán reclamar judicialmente el pago de las deudas sociales a un
socio después de haber requerido de pago sin resultado a la sociedad por documento extrajudicial.
Artículo L221-2 La sociedad colectiva será identificada por una denominación social, a la que se podrá incorporar el nombre de uno
o varios socios y deberá ser inmediatamente precedida o seguida de la designación "sociedad colectiva".
Artículo L221-3 Todos los socios serán gerentes, salvo estipulación contraria en los estatutos, los cuales podrán designar uno o
varios gerentes, socios o no, o prever su designación en un acto ulterior. Si el gerente fuera una persona jurídica, sus dirigentes estarán sometidos a las mismas condiciones y obligaciones
e incurrirán en las mismas responsabilidades civil y penal que si fueran gerentes como persona física, sin perjuicio de la responsabilidad solidaria de la persona jurídica que dirijan.
Artículo L221-4 En las relaciones entre socios, y si sus poderes no estuvieran delimitados por los estatutos, el gerente podrá
realizar cualquier acto de gestión en beneficio de la sociedad. En caso de pluralidad de gerentes, éstos ostentarán por separado los poderes previstos en el párrafo anterior, con
la excepción del derecho de cada uno a oponerse a cualquier operación antes de que sea concluida.
Artículo L221-5 En las relaciones con terceros, el gerente comprometerá a la sociedad en aquellos actos que formen parte de su
objeto social. En caso de pluralidad de gerentes, éstos detentarán por separado los poderes previstos en el párrafo anterior. La
oposición presentada por un gerente frente a los actos de otro gerente no tendrán efecto frente a terceros, a menos que se demuestre que éstos tuvieron conocimiento de ella.
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CÓDIGO DE COMERCIO Las cláusulas estatutarias que limiten los poderes de los gerentes derivadas del presente artículo no serán
oponibles frente a terceros.
Artículo L221-6 Los acuerdos que sobrepasen las atribuciones otorgadas a los gerentes serán tomadas por unanimidad de los
socios. Sin embargo, los estatutos podrán prever que algunos acuerdos puedan ser tomados por una mayoría que dichos estatutos determinen.
Los estatutos podrán así mismo prever que las decisiones sean tomadas por medio de consulta escrita, si ningún socio hubiera solicitado la reunión de la junta.
Artículo L221-7 (Disposición nº 2004-1382 de 20 de diciembre de 2004 Artículo 6 Diario Oficial de 22 de diciembre de 2004)
El informe de gestión, el inventario y las cuentas anuales realizadas por los gerentes serán sometidos a la aprobación de la junta de socios en el plazo de seis meses a partir del cierre de dicho ejercicio.
Para ello, los documentos citados en el párrafo anterior, el texto de las resoluciones propuestas así como, en su caso, el informe de los Auditores de cuentas, las cuentas consolidadas y el informe sobre la gestión del grupo serán presentados a los socios en las condiciones y en los plazos fijados por decreto adoptado en Conseil d'Etat . Todo acuerdo que infrinja las disposiciones del presente párrafo y del decreto en el que se basa para su aplicación, podrá ser anulado.
Toda cláusula en contrario a las disposiciones del presente artículo y al decreto adoptado para su aplicación se tendrá por no puesta.
Los apartados tercero a sexto del artículo L. 225-100 y el artículo L. 225-100-1 se aplicarán al informe de gestión cuando el conjunto de las participaciones sean poseídas por personas que dispongan de las siguientes formas jurídicas: sociedad anónima, sociedad comanditaria por acciones sociedad de responsabilidad limitada.
Nota: Resolución 2004-1382 2004-12-20 art. 12: Lo dispuesto en la presente resolución será de aplicación a partir del primer ejercicio abierto después de 1 de enero de 2005.
Artículo L221-8 Los socios no gerentes tendrán derecho a que les sean mostrados los libros y los documentos de la sociedad y a
plantear por escrito preguntas sobre la gestión social, de las que deberán recibir respuesta igualmente por escrito dos veces al año.
Artículo L221-9 Los socios podrán nombrar a uno o varios auditores de cuentas en las formas previstas por el artículo L. 221-6. Las sociedades que sobrepasen, al cierre del ejercicio social, las cifras fijadas por decreto adoptado en Conseil
d'Etat para dos de los siguientes criterios: el total de su balance, la suma total, sin incluir impuestos, de su volumen de negocio o el número medio de empleados en el transcurso de un ejercicio.
Aunque no se alcancen estos niveles, cualquier socio podrá solicitar judicialmente el nombramiento de un auditor de cuentas.
Artículo L221-10 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 112, Artículo 116 Diario Oficial de 2 de agosto de 2003)
I. - Los auditores de cuentas, que deberán ser escogidos de entre la lista citada en el artículo L.822-1, serán nombrados para un período de seis ejercicios.
II. y III. - Párrafos derogados. IV. - Serán nulos los acuerdos tomados sin que haya habido designación regular de auditores de cuentas o
basados en informes de auditores de cuentas nombrados o requeridos para la función infringiendo las disposiciones del presente artículo. La acción de nulidad se extinguirá si dichos acuerdos fueran expresamente confirmados en una junta, sobre la base de un informe de auditores designados válidamente.
Artículo L221-11 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 116 Diario Oficial de 2 de agosto de 2003)
Las disposiciones correspondientes a las facultades, las incompatibilidades citadas en el artículo L. 822-3, las funciones, las obligaciones, la responsabilidad, la substitución, la recusación, la revocación, la remuneración de los Auditores de cuentas de las sociedades anónimas serán aplicables a las sociedades colectivas, sin perjuicio de lo dispuesto por sus propias normas.
Las juntas o las consultas se le notificarán al auditor de cuentas al mismo tiempo, como mínimo, que a los socios. Éste tendrá acceso a las juntas.
Los documentos citados en el primer apartado del artículo L.221-7 serán puestos a disposición del auditor de cuentas en las condiciones y en los plazos determinados por decreto adoptado en Conseil d'Etat .
Artículo L221-12 Si todos los socios fueran gerentes o si en los estatutos fueran nombrados uno o varios gerentes elegidos entre los
socios, la revocación en sus funciones de uno de ellos sólo podrá ser decidida por unanimidad de los demás socios. Dicha revocación conllevaría la disolución de la sociedad, a menos que su continuidad estuviera prevista en los estatutos o que los demás socios la decidieran por unanimidad. El gerente revocado podrá entonces decidir retirarse de la sociedad, solicitando el reembolso de sus derechos sociales, cuyo valor será determinado en conformidad con el artículo 1843-4 del Código Civil. Cualquier cláusula en contrario al artículo 1843-4 de dicho código se tendrá por no
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CÓDIGO DE COMERCIO puesta.
Si uno o varios socios fueran gerentes y no fueran designados por los estatutos, cada uno de ellos podrá ser relevado de sus funciones, en las condiciones previstas por los estatutos o, en su defecto, por la decisión unánime de todos los demás socios, gerentes o no.
El gerente no socio podrá ser revocado en las condiciones previstas por los estatutos o, en su defecto por una decisión de los socios tomada por mayoría.
Si la revocación se decidiera sin motivo justificado, podrá dar lugar a indemnización por daños y perjuicios.
Artículo L221-13 Las participaciones sociales no podrán ser representadas por títulos negociables. No podrán ser cedidas si no es
con el consentimiento de todos los socios. Cualquier cláusula en contrario se tendrá por no puesta.
Artículo L221-14 Se tendrá que dar constancia por escrito de la cesión de participaciones sociales. De este modo será oponible
frente a la sociedad, en las formas previstas en el artículo 1690 del Código Civil. Sin embargo, la notificación podrá ser sustituida por el depósito de un original del acta de cesión en la sede social con entrega, por parte del gerente, de un certificado de tal depósito.
Sólo será oponible frente a terceros tras el cumplimiento de estos requisitos formales además de su publicidad en el Registro de Comercio y de Sociedades.
Artículo L221-15 La sociedad quedará disuelta por el fallecimiento de uno de los socios, no obstante lo dispuesto en el presente
artículo. Si se ha estipulado que, en caso de fallecimiento de uno de sus socios, la sociedad continuaría con su heredero o
solamente con los socios supervivientes, se seguirán estas disposiciones, salvo si se previera que para ser socio, el heredero necesitara contar con la aceptación de la sociedad.
Lo mismo sucederá si se ha estipulado que la sociedad continuara, o bien con el cónyuge superviviente, o bien con uno o varios de los herederos, o bien con cualquier otra persona designada por los estatutos o, si éstos lo permitieran, por disposiciones testamentarias.
Cuando la sociedad continúe con los socios supervivientes, el heredero solamente será acreedor de la sociedad y únicamente tendrá derecho al valor de los derechos sociales de su causante. El heredero tendrá igualmente derecho a este valor si, habiéndose estipulado que para ser socio necesita la autorización de la sociedad, ésta le hubiera sido denegada.
Cuando la sociedad continuara en las condiciones previstas en el párrafo tercero anterior, los beneficiarios de la estipulación al tenor de esta cláusula adeudarán a los sucesores el valor de los derechos sociales que les hayan sido atribuidos.
En todos los casos previstos en el presente artículo, el valor de los derechos sociales será el correspondiente al día del fallecimiento en conformidad con el artículo 1843-4 del Código Civil.
En caso de continuidad y si uno o varios de los herederos del socio fueran menores no emancipados, éstos sólo responderán de las deudas sociales hasta el valor del activo de la herencia de su causante. Además, la sociedad deberá ser transformada, en el plazo de un año, a partir del día del fallecimiento, en sociedad comanditaria en la que el menor se convertirá en comanditario. Si esto no se cumpliera, la sociedad quedaría disuelta.
Artículo L.221-16 (Ley nº 2005-845 de 26 de julio de 2005 art. 162 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando se dictara una resolución judicial firme por la que se estableciera una liquidación judicial, o un plan de cesión total, o se dispusiera una medida de inhabilitación para ejercer una profesión comercial o una medida de incapacidad con relación a uno de los socios, la sociedad quedará disuelta, a menos que se previera su mantenimiento en los estatutos o que los demás socios lo decidieran por unanimidad.
En el caso de mantenimiento, el valor de los derechos sociales que se debiera reembolsar al socio que perdiera dicha condición será determinado de conformidad con lo dispuesto en el artículo 1843-4 del Código CiviL.Cualquier cláusula en contrario al artículo 1843-4 de dicho Código se tendrá por no puesta.
Artículo L221-17 Las sociedades colectivas que, a día 1 de abril de 1967, utilizaran en su razón social el nombre de uno o varios
socios fundadores fallecidos, podrán ser autorizadas, como excepción a lo establecido en las disposiciones de los artículos L.221-2 y L. 222-3, a conservar ese nombre en su denominación social.
Un decreto adoptado en Conseil d'Etat determinará las condiciones a las que se subordinará esta autorización. Este decreto fijará además las condiciones en las que terceros podrán formular su oposición ante las jurisdicciones
competentes.
CAPITULO II De las sociedades en comandita simple Artículos L222-1 a
L222-12
Artículo L222-1
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CÓDIGO DE COMERCIO Los socios colectivos tendrán el estatuto de socios en nombre colectivo. Los socios comanditarios responderán de las deudas sociales solamente hasta el importe de su aportación. Ésta
no podrá ser industrial.
Artículo L222-2 Las disposiciones relativas a las sociedades colectivas serán aplicables a las sociedades comanditarias simples,
no obstante lo dispuesto por las normas previstas en el presente capítulo.
Artículo L222-3 La sociedad comanditaria simple será designada por una denominación social a la que puede ser incorporado el
nombre de uno o varios socios y que deberá ir inmediatamente precedida o seguida de las palabras: "sociedad comanditaria simple".
Artículo L222-4 Los estatutos de la sociedad deberán contener las siguientes menciones: 1º El importe o el valor de las aportaciones de todos sus socios; 2º La parte en ese importe o ese valor de cada socio colectivo o comanditario; 3° La parte global de los socios colectivos y la parte de cada socio comanditario en el reparto de los beneficios y en
el superávit fruto de la liquidación.
Artículo L222-5 Las decisiones serán tomadas en las condiciones establecidas por los estatutos. Sin embargo, se convocará por
derecho una junta de todos los socios, si se fuera solicitada por parte de un colectivo, o por un cuarto en número y en capital de los comanditarios.
Artículo L222-6 El socio comanditario no podrá realizar ningún acto de gestión externa, ni siquiera actuando como apoderado. En caso de infracción a la prohibición prevista por el párrafo anterior, el socio comanditario será considerado
solidariamente responsable con los socios colectivos de las obligaciones contraídas por la sociedad resultantes de estas operaciones prohibidas. Según el número o la importancia de éstas, podría ser declarado solidariamente responsable de todas las obligaciones de la sociedad o sólo de algunas.
Artículo L222-7 Los socios comanditarios, dos veces al año, tendrán derecho a que les sean mostrados los libros y los documentos
sociales y a formular por escrito preguntas sobre la gestión social, a las cuales deberán recibir igualmente contestación por escrito.
Artículo L222-8 I. - Las participaciones de un socio no podrán ser cedidas si no es con el consentimiento de los demás socios. II. - Sin embargo, los estatutos podrán estipular: 1º Que las participaciones de los socios comanditarios sean libremente cedibles entre socios; 2º Que las participaciones de los socios comanditarios puedan ser cedidas a personas ajenas a la sociedad con el
consentimiento de todos los socios colectivos y de la mayoría en número y en capital de los comanditarios; 3º Que un socio colectivo pueda ceder un porcentaje de sus participaciones a un comanditario o a un tercero, ajeno
a la sociedad, en las condiciones previstas en el párrafo 2º de este artículo.
Artículo L222-9 Los socios no podrán, si no es por unanimidad, cambiar la nacionalidad de la sociedad. Cualquier otra modificación de los estatutos podrá ser decidida con el consentimiento de todos los socios colectivos
y de la mayoría en número y en capital de los comanditarios. Las cláusulas que estipulen condiciones de mayoría más estrictas se tendrán por no puestas.
Artículo L222-10 La sociedad continuará a pesar del fallecimiento de un comanditario. Si estuviera estipulado que a pesar del fallecimiento de uno de los socios colectivos, la sociedad continuase con
sus herederos, éstos se convertirían en comanditarios cuando fueran menores no emancipados. Si el socio difunto fuera el único socio colectivo y si sus herederos fueran todos menores no emancipados, se procedería a su sustitución por un nuevo socio colectivo o a la transformación de la sociedad, en el plazo de un año a partir de este fallecimiento. Si no se hiciera, la sociedad quedaría disuelta de pleno derecho al finalizar dicho plazo.
Artículo L222-11 En caso de declaraciones judiciales de suspensión de pagos o de liquidación de uno de los socios colectivos, de
inhabilitación para ejercer una profesión comercial o de incapacidad, que afecte a uno de los socios colectivos, la sociedad será disuelta, a menos que, si hubiera uno o varios socios colectivos más, los estatutos prevean la continuidad de la sociedad o que los socios lo decidieran por unanimidad. En ese caso, se aplicarán las disposiciones del párrafo segundo del artículo L.221-16.
Artículo L222-12 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Se aplicarán las disposiciones del artículo L. 221-17 a las sociedades comanditarias simples.
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CÓDIGO DE COMERCIO CAPITULO III De las sociedades de responsabilidad limitada Artículos L223-2 a
L223-43
Artículo L223-2 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 4 y anexo II Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-721 de 1 de agosto de 2003 Artículo 1 I Diario Oficial de 5 de agosto de 2003)
El importe del capital social estará fijado por los estatutos. Se dividirá en participaciones sociales iguales.
Artículo L223-3 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 11 Diario Oficial de 27 de marzo de 2004)
El número de socios de una sociedad de responsabilidad limitada no podrá ser superior a cien. Si la sociedad llegara a tener más de cien socios, quedaría disuelta al término de un plazo de un año, a menos que durante dicho plazo el número de socios hubiera disminuido hasta una cifra igual o inferior a cien o que la sociedad hubiera sido objeto de una transformación.
Artículo L223-4 En caso de reunión en una sola persona de todas las participaciones de una sociedad de responsabilidad limitada,
no serán de aplicación las disposiciones del artículo 1844-5 del Código Civil relativas a la disolución judicial.
Artículo L223-5 Una sociedad de responsabilidad limitada no podrá tener como socio único a otra sociedad de responsabilidad
limitada compuesta de una única persona. En caso de infracción de las disposiciones del párrafo anterior, cualquier interesado podrá instar judicialmente la
disolución de las sociedades irregularmente constituidas. Cuando la irregularidad proviene de la concentración en una sola mano de todas las participaciones de una sociedad que tenga más de una socio, la solicitud de disolución no podrá realizarse antes de un año tras la reunión de las aportaciones. En cualquier caso, el Tribunal podrá conceder un plazo máximo de seis meses para regularizar la situación y no podrá decidir su disolución si se produjera su regularización con anterioridad al día en que resolviera sobre el fondo.
Artículo L223-6 Todos los socios deberán intervenir en el acto constitutivo de la sociedad, en persona o representados por un
mandatario provisto de un poder especial.
Artículo L223-7 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 124 I Diario Oficial de 16 de mayo de 2001)
Las participaciones sociales deberán ser suscritas por los socios en su totalidad. Estas participaciones deberán estar totalmente desembolsadas cuando representen aportaciones en especie. Las participaciones que representen aportaciones en metálico tendrán que ser desembolsadas al menos en una quinta parte de su importe total. El desembolso del excedente se producirá en una o varias veces, según decida el gerente, en un plazo que no podrá exceder de cinco años a partir de la inscripción de la sociedad en el Registro de Comercio y de Sociedades. Sin embargo, el capital social deberá ser íntegramente desembolsado antes de toda suscripción de nuevas participaciones sociales que hubiera que desembolsar en metálico, bajo pena de nulidad de la operación.
En su caso, los estatutos definirán las condiciones según las cuales podrán ser suscritas las participaciones sociales industriales.
Los estatutos deberán mencionar la distribución de las participaciones sociales. Los fondos que provengan del desembolso de las participaciones sociales serán depositados en las condiciones y
plazos definidos por decreto adoptado en Conseil d'Etat.
Artículo L223-8 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 15 Diario Oficial de 27 de marzo de 2004)
El mandatario de la sociedad no podrá efectuar la retirada de los capitales que provengan del desembolso de las participaciones sociales antes de la inscripción de ésta en el Registro de Comercio y de Sociedades.
Si la sociedad no estuviera constituida en el plazo de seis meses a contar desde el primer depósito de fondos, o si no estuviera inscrita en el Registro de Comercio y de Sociedades en el mismo plazo, los partícipes podrán de manera individual solicitar judicialmente la autorización para retirar el importe de sus aportaciones. En los mismos casos, cualquier mandatario que represente a todos los partícipes podrá solicitar al depositario la retirada de los fondos.
Si los partícipes decidieran posteriormente constituir la sociedad, tendrán que proceder a un nuevo depósito de fondos.
Artículo L223-9 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 4 y anexo II Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Los estatutos deberán incluir la valoración de cada aportación en especie. Para ello se elaborará un informe anexo a los estatutos y realizado bajo su responsabilidad, por un auditor de aportaciones, designado por unanimidad por los futuros socios o, en su defecto, por una decisión judicial a petición del futuro socio más diligente.
Sin embargo, los futuros socios podrán decidir por unanimidad que no sea necesario acudir a un auditor de
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CÓDIGO DE COMERCIO aportaciones, cuando el valor de ninguna aportación en especie excediera de los 7.500 euros y si el valor total del conjunto de las aportaciones en especie no sometidas a la valoración de un auditor no superara la mitad del capital.
Cuando la sociedad esté constituida por una sola persona, el auditor de aportaciones será designado por el socio único. Sin embargo, el recurso a un auditor de cuentas no será obligatorio si se cumplen las condiciones previstas en el párrafo anterior.
Cuando no hubiera habido auditor de aportaciones o cuando el valor de tasación hubiera sido diferente del propuesto por el auditor de aportaciones, los socios serán solidariamente responsables durante cinco años, frente a terceros, del valor atribuido a las aportaciones en especie en el momento de la constitución de la sociedad.
Artículo L223-10 Los primeros gerentes y los socios a los que se pueda imputar la nulidad de la sociedad, serán solidariamente
responsables, frente a los demás socios y frente a terceros del perjuicio resultante de la anulación. La acción prescribirá en el plazo previsto en el párrafo primero del artículo L. 235-13.
Artículo L223-11 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 12 Diario Oficial de 27 de marzo de 2004) (Disposición nº 2004-1343 de 9 de diciembre de 2004 Artículo 78 XV Diario Oficial de 10 de diciembre de 2004)
La sociedad de responsabilidad limitada que, con arreglo al artículo L. 223-35, esté sujeta a la obligación de designar a un auditor de cuentas y cuyas cuentas de los últimos tres ejercicios de doce meses hayan sido válidamente aprobadas por los socios podrá, emitir obligaciones nominativas, sin necesidad de hacer un llamamiento público al ahorro.
La emisión de obligaciones será decidida por la junta de socios de conformidad con las disposiciones aplicables a las juntas generales de socios. Estos títulos estarán sujetos a las disposiciones aplicables a las obligaciones emitidas por las sociedades por acciones, con exclusión de las previstas por los artículos L. 228-39 a L. 228-43 y L. 228-51.
En cada emisión de obligaciones por una sociedad que cumpla las condiciones del apartado primero, la sociedad deberá poner a disposición de los suscriptores una reseña relativa a las condiciones de la emisión y un documento informativo con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Estará igualmente prohibido para una sociedad de responsabilidad limitada garantizar una emisión de valores mobiliarios, bajo pena de nulidad de la garantía, salvo si la emisión la realizara una sociedad de desarrollo regional o si se tratara de una emisión de obligaciones que se beneficiara de la garantía subsidiaria del Estado.
Artículo L223-12 Las participaciones sociales no podrán ser representadas por títulos negociables.
Artículo L223-13 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 13 Diario Oficial de 27 de marzo de 2004) (Disposición nº 2004-1343 de 9 de diciembre de 2004 Artículo 78 XV Diario Oficial de 10 de diciembre de 2004)
Las participaciones sociales serán libremente transmisibles por vía de sucesión o en caso de liquidación de la comunidad de bienes entre esposos y libremente cedibles entre cónyuges y entre ascendientes y descendientes.
No obstante, los estatutos podrán estipular que el cónyuge, un heredero, un ascendiente o un descendiente sólo puede ser socio tras haber obtenido la autorización en las condiciones previstas en el artículo L. 223-14. Bajo pena de nulidad de la cláusula, los plazos concedidos a la sociedad para decidir la aceptación no podrán ser más largos que los previstos en el artículo L.223-14, y la mayoría exigida no podrá ser superior a la prevista en dicho artículo. En caso de denegación de la autorización, se aplicarán las disposiciones de los párrafos tercero y cuarto del artículo L 223-14. Si, en los plazos concedidos, no se diera ninguna de las soluciones previstas en estos párrafos se considerará efectuada la aceptación.
Los estatutos podrán estipular que en caso de fallecimiento de uno de los socios, la sociedad continuará con su heredero o solamente con los socios supervivientes. Cuando la sociedad continúe con los socios supervivientes solamente, o cuando se le hubiera denegado la autorización al heredero, éste tendrá derecho al valor de los derechos sociales de su causante.
Podrá igualmente estipularse que la sociedad continuará, o bien con el cónyuge superviviente, o bien con uno o varios de los herederos, o bien con cualquier otra persona designada por los estatutos o, si éstos lo permitieran, por disposiciones testamentarias.
En los casos previstos en el presente artículo, el valor de los derechos sociales será el correspondiente al día del fallecimiento de conformidad con el artículo 1843-4 del Código Civil.
Artículo L223-14 (Ley nº 2003-721 de 1 de agosto de 2003 Artículo 1 III Diario Oficial de 5 de agosto de 2003) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 14 Diario Oficial de 27 de marzo de 2004)
Las participaciones sociales no podrán ser transmitidas a terceros ajenos a la sociedad sin el consentimiento de una mayoría de los socios que representen al menos la mitad del capital social, salvo que los estatutos prevean una mayoría más amplia.
Cuando la sociedad tuviese más de un socio, el proyecto de cesión será notificado a la sociedad y a cada uno de los socios. Si la sociedad no diese a conocer su decisión en el plazo de tres meses, a partir de la última de las notificaciones previstas en el presente párrafo, se considerará que la cesión ha sido consentida.
Si la sociedad rechazase la cesión, los socios estarán obligados, en el plazo de tres meses a partir de esta denegación, a adquirir o a hacer adquirir las participaciones a un precio determinado en las condiciones previstas en el
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CÓDIGO DE COMERCIO artículo 1843-4 del Código Civil, a menos que el cedente renuncie a la cesión de sus participaciones. Los gastos relativos al dictamen pericial correrán a cargo de la sociedad. A petición del gerente, este plazo podrá ser prorrogado por resolución judicial sin que esta prórroga pueda sobrepasar los seis meses.
La sociedad también podrá decidir, con el consentimiento del socio cedente, en el mismo plazo, reducir su capital por el importe del valor nominal de las participaciones de este socio y comprárselas por el precio fijado en las condiciones previstas anteriormente. Una resolución judicial podrá conceder a la sociedad, cuando exista motivo justificado, un plazo de pago que no podrá exceder de los dos años. Las cantidades adeudadas devengarán los intereses legales en materia comercial.
Si, tras la expiración del plazo concedido, no se hubiera dado ninguno de los casos previstos en el tercer y cuarto párrafo anteriores, el socio podrá realizar la cesión inicialmente prevista.
Salvo en los casos de sucesión, de liquidación de la comunidad de bienes entre esposos, o de donación en beneficio del cónyuge, de un ascendiente o descendiente, el socio cedente no podrá ampararse en las disposiciones de los párrafos tercero y quinto anteriores si no poseyera sus participaciones desde al menos dos años antes.
Cualquier cláusula en contrario a los dispuesto en el presente artículo se tendrá por no puesta.
Artículo L223-15 Si la sociedad hubiese dado su consentimiento a un proyecto de pignoración de participaciones sociales según las
condiciones previstas en el primer y segundo párrafo del artículo L.223-14, este consentimiento conllevará la autorización del cesionario en caso de realización forzosa de las participaciones sociales pignoradas, según las disposiciones del primer párrafo del artículo 2078 del Código Civil, a menos que la sociedad prefiriera, tras la cesión, comprar de nuevo y de forma inmediata las participaciones con el fin de reducir su capital.
Artículo L223-16 Las participaciones serán libremente cedibles entre los socios. Si los estatutos contuvieran una cláusula que limitara la transmisibilidad, se aplicarán las disposiciones del artículo
L. 223-14. No obstante, los estatutos podrán reducir en tal caso la mayoría necesaria o reducir los plazos previstos en dicho artículo.
Artículo L223-17 La cesión de las participaciones sociales estará sujeta a las disposiciones del artículo L. 221-14.
Artículo L223-19 El gerente o, si lo hubiera, el auditor de cuentas, presentará a la junta o añadirá a los documentos mostrados a los
socios, en caso de consulta escrita, un informe sobre los contratos concluidos, directamente o por personas interpuestas, entre la sociedad y uno de sus gerentes o socios. La junta decidirá en base a este informe. El gerente o el socio interesado no podrá tomar parte en la votación y sus participaciones no serán tenidas en cuenta para el cálculo del quórum y de la mayoría.
Sin embargo, a falta de auditor de cuentas, los contratos concluidos por un gerente no socio tendrán que ser sometidos a la aprobación previa de la junta.
Por excepción a lo establecido en las disposiciones del primer párrafo, cuando la sociedad sólo poseyera un socio y el contrato se hubiera concertado con éste, sólo se hará mención de ello en el registro de acuerdos.
Aunque no se hayan aprobado los contratos, éstos producirán sus efectos a cargo del gerente y, si procede, del socio contratante, que deberán soportar individual o solidariamente, según los casos, las consecuencias perjudiciales del contrato para la sociedad.
Las disposiciones del presente artículo se aplicarán también a los contratos realizados con una sociedad en la que un socio responsable ilimitadamente, gerente, administrador, director general, miembro del directorio o miembro del consejo de supervisión, fuera simultáneamente gerente o socio de la sociedad de responsabilidad limitada.
Artículo L223-20 Las disposiciones del artículo L. 223-19 no serán aplicables a los contratos que consistan en operaciones
corrientes y concertadas en condiciones normales.
Artículo L223-21 Bajo pena de nulidad del contrato, se prohibirá a los gerentes o socios que no sean personas jurídicas, que pidan
créditos a la sociedad, en la forma que sea, que ésta les cubra un descubierto en cuenta corriente o de otro modo, así como que garantice o avale sus obligaciones frente a terceros. Esta prohibición se aplicará a los representantes legales de las personas jurídicas socias.
Esta prohibición se aplicará igualmente al cónyuge, a los ascendientes o descendientes de las personas citadas en el párrafo anterior así como a toda persona interpuesta.
Sin embargo, si la sociedad explotara un establecimiento financiero, esta prohibición no se aplicará a las operaciones corrientes de este tipo de establecimiento realizadas en condiciones normales.
Artículo L223-22 Los gerentes serán responsables, individual o solidariamente, según los casos, frente a la sociedad o a terceros,
de las infracciones a las disposiciones legislativas o reglamentarias aplicables a las sociedades de responsabilidad limitada, de las violaciones a los estatutos, y de los fallos cometidos en su gestión.
Si varios gerentes hubieran cooperado en los mismos hechos, el Tribunal determinará la parte que corresponda a cada uno en la reparación del daño.
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CÓDIGO DE COMERCIO Además del procedimiento iniciado para compensación del perjuicio sufrido personalmente, los socios podrán
ejercer la acción social de resarcimiento por responsabilidad civil contra los gerentes, individualmente o en grupo, en las condiciones fijadas por decreto adoptado en Conseil d'Etat . Los demandantes estarán habilitados para reclamar la reparación íntegra del daño causado a la sociedad, a la cual se le abonará, en su caso, una indemnización por daños y perjuicios.
Se tendrá por no puesta toda cláusula de los estatutos que tuviera por efecto subordinar el ejercicio de la acción social al previo dictamen o autorización de la junta, o que conllevara por adelantado la renuncia a ejercer esta acción,.
Ninguna decisión de la junta podrá tener por efecto extinguir un procedimiento de resarcimiento por responsabilidad civil contra los gerentes por falta cometida en el cumplimiento de su mandato.
Artículo L223-23 Las acciones de responsabilidad civil previstas en los artículos L. 223-19 y L. 223-22 prescribirán a los tres años a
partir del hecho perjudicial o, si éste ha sido ocultado, de su descubrimiento. Sin embargo, cuando el hecho hubiera sido calificado como delito la acción prescribirá a los diez años.
Artículo L223-24 En caso de apertura de un procedimiento de suspensión de pagos o de liquidación judicial en aplicación de las
disposiciones del libro VI, título II, las personas citadas en estas disposiciones podrán ser consideradas responsables del pasivo social y ser sometidas a las privaciones de derechos e inhabilitaciones en las condiciones previstas por dichas disposiciones.
Artículo L223-25 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 17 Diario Oficial de 27 de marzo de 2004)
El gerente podrá ser revocado por decisión de los socios en las condiciones del artículo L. 223-29, salvo que los estatutos previeran una mayoría más amplia. Si la revocación se decidiera sin motivo justificado, podrá dar lugar a indemnización por daños y perjuicios.
Además, el gerente podrá ser revocado por los Tribunales a petición de cualquiera de los socios si mediase causa legítima.
Como excepción a lo establecido en el primer párrafo, el gerente de una sociedad de responsabilidad limitada que explote una empresa de prensa en el sentido del artículo 2 de la Ley no 86-897 de 1 de agosto de 1986 relativo a la reforma del régimen jurídico de la prensa, sólo será revocable por una decisión de los socios que representen, al menos, tres cuartas partes del capital social.
Artículo L223-26 (Disposición nº 2004-1382 de 20 de diciembre de 2004 Artículo 5 Diario Oficial de 22 de diciembre de 2004)
El informe de gestión, el inventario y las cuentas anuales presentadas por los gerentes se someterán a la aprobación de los socios reunidos en junta en el plazo de seis meses a partir del cierre del ejercicio.
Con este fin, los documentos citados en el párrafo anterior, el texto de las resoluciones propuestas así como, en su caso, el informe de los auditores de cuentas, las cuentas consolidadas y el informe sobre la gestión del grupo serán presentados a los socios en las condiciones y plazos determinados por decreto adoptado en Conseil d'Etat . Todo acuerdo que infrinja las disposiciones del presente párrafo y del decreto en el que se basa para su aplicación, podrá ser anulado.
A partir de la presentación de documentos prevista en el párrafo anterior, todo socio podrá formular por escrito preguntas, a las que el gerente estará obligado a responder en el transcurso de la junta.
El socio podrá, además y en todo momento, tener acceso, en las condiciones fijadas por decreto adoptado en Conseil d'Etat , a los documentos sociales determinados por dicho decreto y relativos a los tres últimos ejercicios.
Cualquier cláusula en contrario a las disposiciones del presente artículo y del decreto en el que se basa para su aplicación, se tendrá por no puesta.
Los apartados tercero a sexto del artículo L. 225-100 y el artículo L. 225-100-1 se aplicarán al informe de gestión. En su caso, el artículo L. 225-100-2 se aplicará al informe consolidado de gestión.
Nota: Resolución 2004-1382 2004-12-20 art. 12: Lo dispuesto en la presente resolución será de aplicación a partir del primer ejercicio abierto después de 1 de enero de 2005.
Artículo L223-27 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 18 Diario Oficial de 27 de marzo de 2004)
Los acuerdos serán tomados en la junta. Sin embargo, los estatutos podrán estipular que, exceptuando los previstos en el primer párrafo del artículo L.223-26, todos los acuerdos o algunos de ellos podrán ser tomados por consulta escrita de los socios o podrán derivar del consentimiento de todos los socios expresado en un acta.
Los socios serán convocados a las juntas en las formas y plazos previstos por decreto adoptado en Conseil d'Etat . La convocatoria será realizada por el gerente, o en su defecto, por el auditor de cuentas, si lo hubiese. La junta no podrá celebrarse antes de la expiración del plazo de comunicación de los documentos mencionados en el artículo L. 223-26.
Uno o varios socios que ostenten la mitad de las participaciones sociales o que posean un cuarto de las participaciones sociales, siempre y cuando representen al menos una cuarta parte de los socios, podrán solicitar la convocatoria de una junta. Cualquier cláusula en contrario se tendrá por no puesta.
Cualquier socio podrá solicitar judicialmente la designación de un mandatario encargado de convocar la junta y de
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CÓDIGO DE COMERCIO fijar el orden del día.
En caso de fallecimiento del gerente único, el auditor de cuentas o cualquier socio convocará a la junta de socios con el único objetivo de proceder a la sustitución del gerente. Dicha convocatoria se hará en las formas y plazos previstos por decreto adoptado en Conseil d'Etat .
Podrá ser anulada toda junta irregularmente convocada. Sin embargo, la acción de nulidad correspondiente no será admisible cuando todos los socios hayan estado presentes o representados.
Artículo L223-28 Cada socio tendrá derecho a participar en la toma de acuerdos y dispondrá de un número de votos igual al de las
participaciones sociales que posea. Un socio podrá ser representado por su cónyuge a menos que la sociedad esté formada sólo por los dos esposos.
Un socio podrá ser representado por otro socio, salvo en el caso de que los socios sean sólo dos. Un socio podrá hacerse representar por otra persona siempre que los estatutos lo permitan. No podrá nombrar a un mandatario para votar utilizando el poder conferido por una porción de sus participaciones
y votar personalmente utilizando el de la otra porción. Cualquier cláusula en contrario a las disposiciones de los párrafos 1º, 2º y 4º anteriores se tendrá por no puesta.
Artículo L223-29 En las juntas o en las consultas escritas, los acuerdos se tomarán por uno o varios socios que representen más de
la mitad de las participaciones sociales. Si no se obtuviera la mayoría y salvo estipulación contraria de los estatutos, los socios serán convocados o
consultados por segunda vez según los casos, y las decisiones serán tomadas por mayoría de votos emitidos, sea cual fuere el número de votantes.
Artículo L223-32 En caso de ampliación de capital por suscripción de participaciones sociales en metálico, serán aplicables las
disposiciones del último párrafo del artículo L.223-7. La retirada de fondos procedentes de suscripciones podrá ser efectuada por un mandatario de la sociedad tras la
comprobación del certificado del depositario. Si no se realizara la ampliación de capital en el plazo de seis meses a partir del primer depósito de fondos, se
podrán aplicar las disposiciones del segundo párrafo del artículo L. 223-8.
Artículo L223-33 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Si se realizara la ampliación de capital con aportaciones en especie, en su totalidad o en parte, se aplicarán las disposiciones del primer párrafo del artículo L. 223-9. Sin embargo, se nombrará por resolución judicial a un auditor encargado de las aportaciones si un gerente lo solicitase.
Cuando no hubiese intervenido un auditor de aportaciones o cuando el valor declarado fuera diferente del propuesto por el auditor de aportaciones, los gerentes de la sociedad y las personas que hayan suscrito la ampliación de capital serán solidariamente responsables durante cinco años, frente a terceros, del valor atribuido a dichas aportaciones.
Artículo L223-34 La reducción del capital será autorizada por la junta de socios que decidirá dentro de las condiciones exigidas para
la modificación de los estatutos. En ningún caso, podrá vulnerarse la igualdad de los socios. Si intervinieren auditores de cuentas, el proyecto de reducción de capital les será comunicado en el plazo fijado por
decreto adoptado en Conseil d'Etat. Ellos darán a conocer a la junta su apreciación sobre las causas y condiciones de la reducción.
Cuando la junta apruebe un proyecto de reducción de capital no motivado por pérdidas, los acreedores cuyo crédito sea anterior a la fecha del depósito en Secretaría del acta de deliberación podrán oponerse a la reducción en el plazo fijado por decreto adoptado en Conseil d'Etat. Una resolución judicial desestimará esta oposición o bien ordenará el reembolso de los créditos o la constitución de garantías, si la sociedad las ofreciese y fueran juzgadas suficientes. Las operaciones de reducción del capital no podrán empezar durante el plazo dado para formular oposición.
Está prohibida la compra por parte de una sociedad de sus propias participaciones. Sin embargo, la junta que haya decidido una reducción del capital no motivada por pérdidas podrá autorizar al gerente a comprar un número determinado de participaciones sociales para anularlas.
Artículo L223-35 Los socios podrán nombrar a uno o a varios auditores de cuentas en las condiciones previstas en el artículo L.
223-29. Estarán obligadas a nombrar al menos un auditor de cuentas las sociedades de responsabilidad limitada que
sobrepasen, al cierre de un ejercicio social, las cifras fijadas por decreto adoptado en Conseil d'Etat en cuanto a dos de los siguientes criterios: el total de su balance, la suma total, sin incluir impuestos, de su volumen de negocio o el número medio de empleados en el transcurso de un ejercicio.
Aún cuando no se alcanzaran estos límites, uno o varios socios que representen al menos una décima parte del capital podrán presentar demanda judicial para que se designe un auditor de cuentas.
Artículo L223-36
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CÓDIGO DE COMERCIO Todo socio que no sea gerente podrá, dos veces por cada ejercicio, plantear por escrito preguntas al gerente sobre
cualquier hecho que pueda comprometer la continuidad de la explotación. La respuesta del gerente será notificada al auditor de cuentas.
Artículo L223-37 Uno o varios socios que representen al menos una décima parte del capital social podrán, o bien individualmente, o
bien agrupándose bajo cualquier forma, presentar una demanda judicial para el nombramiento de uno o varios contables encargados de presentar un informe sobre una o varias operaciones de gestión.
El Ministerio Público y el comité de empresa estarán habilitados para actuar con estos mismos fines. Si se admite la solicitud, la resolución judicial determinará la extensión de la tarea y de los poderes de los expertos.
Podrá fijar los honorarios a cargo de la sociedad. El informe será dirigido al demandante, al Ministerio Público, al comité de empresa, al auditor de cuentas así como
al gerente. Este informe deberá, además, ir en anexo al realizado por el elaborado por el auditor de cuentas para ser presentado en la siguiente junta general y recibir la misma publicidad.
Artículo L223-38 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 112 Diario Oficial de 2 de agosto de 2003)
I. - Los auditores de cuentas, que deberán ser elegidos de entre los miembros de la lista mencionada en el artículo L. 822-1, serán nombrados por los socios por un período de seis ejercicios.
II. y III. - Párrafos derogados. IV. - Serán nulos los acuerdos tomados sin que se haya producido un nombramiento regular de auditores de
cuentas o basados en un informe de auditores de cuentas nombrados o que hayan permanecido en sus funciones infringiendo las disposiciones del presente artículo. Se pondrá fin a la acción de nulidad si estos acuerdos fueran expresamente confirmados por una junta, basándose en el informe de los auditores de cuentas válidamente designados.
Artículo L223-39 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 116 Diario Oficial de 2 de agosto de 2003)
Las disposiciones correspondientes a los poderes, las incompatibilidades citadas en el artículo L.822-3, las funciones, las obligaciones, la responsabilidad, la suplencia, la recusación, la revocación y la remuneración de los auditores de cuentas de las sociedades anónimas serán aplicables a las sociedades de responsabilidad limitada, siempre que se atengan a las normas propias de éstas.
Los auditores de cuentas recibirán notificación como mínimo al mismo tiempo que los socios, de las celebración de las juntas o de las consultas. Tendrán derecho a participar en las juntas.
Los documentos citados en el primer párrafo del artículo L.223-26 serán puestos a disposición de los Auditores de cuentas en las condiciones fijadas por decreto adoptado en Conseil d'Etat.
Artículo L223-40 Se podrá exigir la restitución de los dividendos a los socios que los hayan percibido siempre que no correspondan
a beneficios realmente obtenidos. La acción restitutoria prescribirá en el plazo de tres años a partir del inicio del reparto de los dividendos.
Artículo L223-41 La sociedad de responsabilidad limitada no será disuelta cuando se haya dictado una resolución judicial de
liquidación, quiebra, inhabilitación para la gestión prevista por el artículo L.625-8 o una medida de incapacitación con relación a uno de los socios.
Tampoco será disuelta por fallecimiento de uno de los socios, salvo que así se prevea en los estatutos.
Artículo L223-42 (Ley nº 2003-721 de 1 de agosto de 2003 Artículo 1 IV Diario Oficial de 5 de agosto de 2003)
Si a causa de la constatación de pérdidas en los documentos contables, los fondos propios de la sociedad se hicieran inferiores a la mitad del capital social, los socios decidirán, en los cuatro meses siguientes a la aprobación de las cuentas en las que se haya detectado esta pérdida, si procederá la disolución anticipada de la sociedad.
Si no se decidiera la disolución por la mayoría exigida para la modificación de los estatutos, la sociedad estará obligada, al cierre del segundo ejercicio siguiente al de la constatación de las pérdidas, a reducir su capital a una suma al menos igual a la de las pérdidas que no puedan ser imputadas a las reservas, si, en este plazo, los fondos propios no hubieran sido restituidos hasta por lo menos el valor de la mitad del capital social.
En ambos casos, la resolución adoptada por los socios será publicada con los requisitos formales previstos en decreto adoptado en Conseil d'Etat.
Si el gerente o el auditor de cuentas no hubiese tomado una decisión o si los socios no hubiesen podido decidir de manera válida, todo interesado podrá presentar una demanda judicial para la disolución de la sociedad. Lo mismo ocurrirá si las disposiciones del párrafo segundo anterior no hubieran sido aplicadas. En cualquier caso, el Tribunal podrá conceder a la sociedad un plazo máximo de seis meses para regularizar su situación. No podrá decretar la disolución si se produjera dicha regularización antes de la fecha en la que el tribunal resuelva sobre el fondo.
Las disposiciones del presente artículo no serán aplicables a las sociedades que se encuentren en situación de suspensión de pagos ordenada judicialmente, o que se beneficien de un plan de continuidad.
Artículo L223-43
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CÓDIGO DE COMERCIO (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 4 y anexo II Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
La transformación de una sociedad de responsabilidad limitada en sociedad colectiva, en comandita simple o en comandita por acciones, exigirá el acuerdo unánime de los socios.
La transformación en sociedad anónima será decidida por la mayoría requerida para la modificación de los estatutos. Sin embargo, podrá ser decidida por socios que representen la mayoría de las cuotas sociales si los fondos propios que figuran en el último balance sobrepasaran los 750.000 Euros.
La decisión estará precedida de un informe del auditor de cuentas, sobre la situación de la sociedad. Toda transformación efectuada contraviniendo las normas del presente artículo será nula.
CAPITULO IV Disposiciones generales aplicables a las sociedades por acciones Artículos L224-1 a
L224-3
Artículo L224-1 La sociedad por acciones será identificada por una denominación social, que tendrá que estar precedida o seguida
de la fórmula que indique la forma de la sociedad y el importe del capital social. Los nombres de uno o varios socios podrán ser incluidos en la denominación social. Sin embargo, en la sociedad
en comandita por acciones, el nombre de los socios comanditarios no podrá figurar en ella.
Artículo L224-2 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 4 y anexo II Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
El capital social tendrá que ser al menos de 225.000 euros si la sociedad hiciera un llamamiento público al ahorro y de 37.500 euros al menos en caso contrario.
La reducción del capital social a una cantidad inferior sólo podrá ser decidida con la condición suspensiva de una ampliación de capital destinado a reconducir éste a un importe al menos igual al previsto en el párrafo anterior, a menos que la sociedad tome otra forma. En caso de incumplimiento de las disposiciones del presente párrafo, todo interesado podrá presentar una demanda judicial de disolución de la sociedad. Esta disolución no podrá ser acordada si, con anterioridad al día en que el Tribunal resolviera sobre el fondo, se produjera la regularización.
Por excepción a lo establecido en el primer párrafo, el capital de las sociedades de redactores de prensa será de 300 euros al menos cuando dichas sociedades se hubieran constituido bajo la forma de sociedad anónima.
Artículo L224-3 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 100 Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 98 Diario Oficial de 2 de agosto de 2003)
Cuando una sociedad que no tenga auditor encargado de la transformación, cualquiera que sea su forma, se transforme en una sociedad por acciones, se nombrará - salvo que haya acuerdo unánime de los socios sobre este punto, por resolución judicial dictada ante la demanda de los dirigentes sociales o de uno de ellos - uno o varios auditores parar la transformación, encargados de evaluar, bajo su responsabilidad, el valor de los bienes que compusieran el activo social y los beneficios especiales. Los auditores encargados de las transformaciones podrán ser encargados de la elaboración del informe sobre la situación de la sociedad mencionado en párrafo 3º del artículo L. 223-43. En ese caso se redactará un solo informe. Esos auditores estarán sometidos a las incompatibilidades previstas en el artículo L.225-224. El auditor de cuentas de la sociedad podrá ser nombrado auditor para la transformación. El informe tendrá que mantenerse a disposición de los socios.
Los socios decidirán sobre la valoración de los bienes y la concesión de beneficios especiales. Sólo por unanimidad podrán ser reducidos.
En ausencia de aprobación expresa de los socios, mencionada en el acta, la transformación se considerará nula.
CAPITULO V De las sociedades anónimas Artículos L225-2 a
L225-1
Artículo L225-1 La sociedad anónima es la sociedad cuyo capital está dividido en acciones y que está constituida por socios que
únicamente responderán de las deudas hasta el importe de sus aportaciones. El número de socios no podrá ser inferior a siete.
Sección I De la constitución de las sociedades anónimas Artículos L225-2 a
L225-16
Subsección 1 De la constitución con oferta pública de acciones al ahorro Artículos L225-2 a
L225-11
Artículo L225-2
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CÓDIGO DE COMERCIO Se elaborará el proyecto de los estatutos sociales y será firmado por uno o varios de los fundadores, que
depositarán un ejemplar en la Secretaría del Tribunal de commerce del lugar de su sede social. Los fundadores publicarán una nota de la inscripción en las condiciones determinadas por decreto adoptado en
Conseil d'Etat. No podrá ser admitida ninguna suscripción si no se observaran las requisitos formales previstos en el primer y
segundo párrafo anteriores. Las personas inhabilitadas para administrar o gestionar una sociedad o las que estén privadas del derecho de
ejercer estas funciones, no podrán ser fundadoras.
Artículo L225-3 El capital social tendrá que estar íntegramente suscrito. Las acciones por suscripción dineraria deberán estar desembolsadas por la mitad al menos de su valor nominal en
el momento de la suscripción. El desembolso del excedente se producirá en una o varias veces por decisión del consejo de administración o del directorio según los casos, en un plazo que no podrá sobrepasar los cinco años a partir de la inscripción de la sociedad en el Registro de Comercio y de Sociedades.
Las acciones suscritas por aportaciones no dinerarias serán íntegramente desembolsadas en el momento de su emisión.
Las acciones no podrán representar aportaciones industriales.
Artículo L225-4 Un resguardo emitido en las condiciones establecidas por decreto adoptado en Conseil d'Etat dará constancia de
las suscripciones de acciones dinerarias.
Artículo L225-5 Los fondos que provengan de aportaciones dinerarias y la lista de suscriptores con la indicación de las cantidades
pagadas por cada uno de ellos serán objeto de un depósito hecho en las condiciones determinadas por decreto adoptado en Conseil d'Etat, éste fijará también las condiciones en las que se tendrá derecho a la notificación de esta lista.
A excepción de los depositarios citados en el decreto previsto en el párrafo anterior, nadie podrá retener más de ocho días las sumas recogidas a cuenta de una sociedad en formación.
Artículo L225-6 Las suscripciones y los pagos deberán hacerse constar por un certificado del depositario tras la presentación de los
boletines de suscripción, extendido en el momento del depósito de los fondos.
Artículo L225-7 Tras la entrega del certificado del depositario, los fundadores convocarán a los suscriptores a una junta general
constituyente en las formas y plazos previstos por decreto adoptado en Conseil d'Etat. Esta junta dará constancia de que el capital está íntegramente suscrito y que las acciones están desembolsadas
por la cantidad exigible. Se pronunciará sobre la adopción de los estatutos que no podrán modificarse si no es por unanimidad de todos los suscriptores, nombrará a los primeros administradores o miembros del consejo de supervisión, designará uno o varios auditores de cuentas. El acta de la sesión de la junta dará constancia, si procede, de la aceptación de sus funciones por parte de los administradores o miembros del consejo de supervisión y de los auditores de cuentas.
Artículo L225-8 En caso de aportaciones en especie, como en el caso de asignación de beneficios especiales a favor de personas
socias o no, uno o varios auditores de aportaciones serán designados por decisión judicial, por demanda de los fundadores o de uno de ellos. Serán sometidos a las incompatibilidades previstas en el artículo L. 225-224.
Los auditores estimarán, bajo su responsabilidad, el valor de las aportaciones en especie y de los beneficios especiales. El informe depositado en la Secretaría, con el proyecto de los estatutos, será mantenido a disposición de los suscriptores en las condiciones determinadas por decreto adoptado en Conseil d'Etat.
La junta general constitutiva se pronunciará sobre la valoración de las aportaciones en especie y la concesión de beneficios especiales. Sólo podrá reducirlas por unanimidad de todos los suscriptores.
Si los aportantes y beneficiarios de derechos especiales no dieran su aprobación expresa, y ésta no constara en el acta, la sociedad se considerará no constituida.
Artículo L225-9 Los suscriptores de acciones tomarán parte en la votación o serán representados en las condiciones previstas en
los artículos L. 225-106, L. 225-110 y L. 225-113. La junta constitutiva deliberará en las condiciones de quórum y mayoría previstas para las juntas extraordinarias.
Artículo L225-10 Cuando la junta delibere sobre la aprobación de una aportación en especie o la concesión de un beneficio especial,
las acciones del aportante o del beneficiario no serán tenidas en cuenta para el cálculo de la mayoría. El aportante o el beneficiario no tendrá derecho al voto ni para sí mismo ni como mandatario.
Artículo L225-11 El mandatario de la sociedad no podrá efectuar la retirada de fondos procedentes de suscripciones en metálico
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CÓDIGO DE COMERCIO antes de la inscripción de ésta en el Registro de Comercio y de Sociedades.
Si la sociedad no estuviera constituida en el plazo de seis meses a partir del depósito del proyecto de estatutos en la Secretaría, todo suscriptor podrá solicitar judicialmente el nombramiento de un mandatario encargado de retirar los fondos para restituirlos a los suscriptores, con la deducción correspondiente a los gastos de reparto.
Si el o los fundadores decidieran posteriormente constituir la sociedad, habrá que proceder nuevamente al depósito de fondos y a la declaración previstos en los artículos L.225-5 y L.225-6.
Subsección 2 De la constitución sin oferta pública de acciones al ahorro Artículos L225-12 a
L225-16
Artículo L225-12 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Cuando no haya una oferta pública de suscripción de acciones al ahorro, serán aplicables las disposiciones de la subsección 1, exceptuando los artículos L. 225-2, L. 225-4, L. 225-7, los párrafos 2º, 3º y 4º del artículo L. 225-8 y los artículos L. 225-9 y L. 225-10.
Artículo L225-13 Se dará constancia de los pagos por un certificado del depositario expedido, en el momento del depósito de
fondos, previa presentación de la lista de accionistas en la que se especifique las sumas pagadas por cada uno de ellos.
Artículo L225-14 Los estatutos contendrán la valoración de las aportaciones en especie. Se procederá a ello a la vista del informe
anexo a los estatutos y elaborado por un auditor de aportaciones, bajo su responsabilidad. Si se hubieran estipulado beneficios especiales, se seguirá el mismo procedimiento.
Artículo L225-15 Los estatutos estarán firmados por los accionistas, bien en persona, bien por medio de un mandatario que presente
un justificante representativo de un poder especial, tras la expedición del certificado del depositario y tras la puesta a disposición de los accionistas del informe previsto en el artículo L. 225-14, en las condiciones y plazos determinados por decreto adoptado en Conseil d'Etat.
Artículo L225-16 Los primeros administradores o los primeros miembros del consejo de supervisión y los primeros Auditores de
cuentas serán designados en los estatutos.
Sección II De la dirección y de la administración de las sociedades anónimas Artículos L225-17 a
L225-95-1
Subsección 1 Del consejo de administración y de la dirección general Artículos L225-17 a
L225-42-1
Artículo L225-17 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 104 1° y Artículo 105 Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 128 Diario Oficial de 2 de agosto de 2003)
La sociedad anónima será administrada por un consejo de administración compuesto de al menos tres miembros. Los estatutos determinarán el número máximo de miembros del consejo, que no podrá sobrepasar los dieciocho.
Sin embargo, en caso de fallecimiento, dimisión o revocación del presidente del consejo de administración y si el consejo no hubiera podido sustituirlo por uno de sus miembros, podrá designar, no obstante las disposiciones del artículo L.225-24, a un administrador suplente que ejercerá las funciones de presidente.
Artículo L225-18 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
Los administradores serán nombrados por la junta general constituyente o por la junta general ordinaria. En el caso previsto en el artículo L.225-16, serán designados por los estatutos. La duración de sus funciones será determinada por los estatutos sin que pueda exceder de seis años en caso de designación por las juntas generales y de tres años en caso de designación en los estatutos. Sin embargo, en caso de fusión o de escisión, el nombramiento podrá efectuarse por la junta general ordinaria.
Los administradores podrán ser reelegidos, salvo estipulación contraria de los estatutos. Podrán ser revocados en todo momento por la junta general ordinaria.
Cualquier nombramiento que se produzca contraviniendo las disposiciones anteriores será nulo, exceptuando aquéllos a los que se proceda en las condiciones previstas en el artículo L. 225-24.
Artículo L225-19 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
Los estatutos deberán prever, para el ejercicio de las funciones de administrador, un límite de edad que se aplicará
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CÓDIGO DE COMERCIO bien al conjunto de los administradores, o bien a un porcentaje determinado de ellos.
Si no existiera ninguna disposición expresa en los estatutos, el número de administradores que haya sobrepasado la edad de setenta años no podrá ser superior al tercio de los administradores en funciones.
Cualquier nombramiento realizado contraviniendo las disposiciones del párrafo anterior será nulo. Si no existiese una disposición expresa en los estatutos que prevea otro procedimiento, cuando el límite estatutario
o legal determinado para la edad de los administradores se haya sobrepasado, el administrador de más edad será considerado dimisionario de oficio.
Artículo L225-20 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
Podrá ser nombrada administradora una persona jurídica. En el momento de su nombramiento, estará obligada a designar a un representante permanente que se someterá a las mismas condiciones y obligaciones y que será igualmente responsable civil y penal que si fuera administrador en nombre propio, sin perjuicio de la responsabilidad solidaria de la persona jurídica a la que representa.
Cuando la personalidad jurídica revoque a su representante, estará obligada a nombrar al mismo tiempo un sustituto.
Artículo L225-21 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 1001 1° Diario Oficial de 16 de mayo de 2001) (Ley nº 2002-1303 de 29 de octubre de 2002 Artículo 1 I Diario Oficial de 30 de octubre de 2002)
Una persona física no podrá ejercer simultáneamente más de cinco mandatos de administrador de sociedades anónimas que tengan su sede en el territorio francés.
Por excepción a lo establecido por las disposiciones del párrafo primero, no serán tenidos en cuenta los mandatos de administrador o de miembro del consejo de supervisión ejercidos por esta persona en las sociedades que estén controladas, en el sentido del artículo L.233-16, por la sociedad de la que la misma sea el administrador.
Para la aplicación de las disposiciones del presente artículo, los mandatos de administrador de las sociedades cuyos títulos estén admitidos a negociación en un mercado regulado y de las sociedades que estén controladas en el sentido del artículo L. 233-16 por una misma sociedad, equivaldrán a un solo mandato, siempre que el número de mandatos acumulados no exceda de cinco.
Cualquier persona física que infrinja las disposiciones del presente artículo deberá dimitir de uno de sus mandatos dentro de los tres meses siguientes a su nombramiento o del mandato en cuestión en los tres meses posteriores al hecho que haya conllevado la desaparición de una de las condiciones determinadas en el párrafo anterior. Tras la expiración de este plazo, será considerada destituida, según el caso, o bien de su nuevo mandato, o bien del mandato que ya no responda a las condiciones fijadas en el párrafo anterior, y deberá restituir las remuneraciones percibidas, sin que sea, por ello, cuestionada la validez de los acuerdos en los que haya tomado parte.
Artículo L.225-22 (Ley nº 2001-420 de 15 de mayo de 2001 art. 105 Diario Oficial de 16 de mayo de 2001) (Ley nº 2001-1168 de 11 de diciembre de 2001 art. 33 II Diario Oficial de 12 de diciembre de 2001)
Un asalariado de la sociedad solamente podrá ser nombrado administrador cuando su contrato laboral corresponda a un empleo efectivo. No perderá por ello el beneficio de dicho contrato laboraL.Cualquier nombramiento realizado contraviniendo las disposiciones del presente párrafo será nulo. Esta nulidad no conllevará la de los acuerdos tomados por el administrador nombrado irregularmente.
El número de administradores vinculados a la sociedad por un contrato laboral no podrá sobrepasar el tercio de los administradores en funciones.
Sin embargo, no se tendrán en cuenta para el cómputo del número de administradores vinculados a la sociedad por el contrato laboral mencionado en el párrafo anterior, a los administradores elegidos por los trabajadores, a los administradores que representen a los trabajadores accionistas o al fondo de inversión colectiva de la empresa en aplicación del artículo L.225-23 y, en las sociedades anónimas laborales, a los representantes de la sociedad cooperativa de mano de obra.
En caso de fusión o escisión, el contrato laboral podrá ser el firmado con una de las sociedades fusionadas o con la sociedad escindida.
Artículo L225-23 (Ley nº 2001-152 de 19 de febrero de 2001 Artículo 24 1° y Artículo 25 I Diario Oficial de 20 de febrero de 2001) (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001) (Ley nº 2002-73 de 17 de enero de 2002 Artículo 217 1° y 2º Diario Oficial de 18 de enero de 2002)
Cuando el informe presentado por el consejo de administración con ocasión de la junta general en aplicación del artículo L. 225-102 estableciese que las acciones detentadas por el personal de la sociedad así como por el personal de las sociedades que están vinculadas a ella en el sentido del artículo L. 225-180, representen más del 3% del capital social de la sociedad, uno o varios administradores deben ser nombrados por la junta general de accionistas a propuesta de los accionistas citados en el artículo L. 225-102, en las condiciones determinadas por decreto. Estos administradores deberán ser designados entre los trabajadores accionistas o, llegado el caso, entre los asalariados miembros del consejo de supervisión de un fondo de inversión colectiva de la empresa que posea acciones de la sociedad. Estos administradores no serán tenidos en cuenta para la determinación del número mínimo y del número máximo de administradores previstos en el artículo L.225-17.
Si la junta general extraordinaria no se hubiera reunido en el plazo de dieciocho meses a partir de la presentación
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CÓDIGO DE COMERCIO del informe, todo asalariado accionista podrá solicitar al presidente del Tribunal que resuelva en juicio sumario para que requiera, bajo pena de multa, al consejo de administración que convoque una junta general extraordinaria y que someta a ésta los proyectos de resoluciones que pretendan modificar los estatutos en el sentido del párrafo anterior y en el último párrafo del presente artículo.
Cuando se admita a trámite la demanda, la sanción y los gastos de procedimiento correrán a cargo de los administradores.
No estarán comprometidas a las obligaciones previstas en el primer párrafo las sociedades cuyo consejo de administración incluya a uno o a varios administradores nombrados entre los miembros del consejo de supervisión de los fondos de inversión colectiva de la empresa que representen a los trabajadores, o a uno o a varios empleados elegidos en aplicación de las disposiciones del artículo L225-27.
Cuando se convoque la junta general extraordinaria en aplicación del primer párrafo, se pronunciará igualmente sobre un proyecto de resolución que prevea la elección de uno o varios administradores por parte del personal de la sociedad y de las filiales directas o indirectas cuya sede social esté fijada en Francia. Llegado el caso, estos representantes serán designados en las condiciones previstas en el artículo L.225-27.
Artículo L225-24 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
En caso de vacante por fallecimiento o por dimisión de uno o varios puestos de administrador, el consejo de administración podrá, entre dos juntas generales proceder a nombramientos a título provisional.
Cuando el número de administradores sea inferior al mínimo legal, los administradores restantes deberán convocar inmediatamente la junta general ordinaria para completar el efectivo del consejo.
Cuando el número de administradores llegara a ser inferior al mínimo estatutario, sin ser inferior, sin embargo, al mínimo legal, el consejo de administración deberá proceder a nombramientos a título provisional para completar su efectivo en el plazo de tres meses a partir del día en que se haya producido la vacante.
Los nombramientos efectuados por el consejo en virtud del primero y tercero de los párrafos anteriores serán sometidos a ratificación en la siguiente junta general ordinaria. A falta de ratificación, no por ello perderán validez los acuerdos y los actos realizados anteriormente por el consejo.
Cuando el consejo no proceda a realizar los nombramientos requeridos o no convoque la junta, todo interesado podrá demandar judicialmente la designación de un mandatario encargado de convocar la junta general para proceder a los nombramientos o para ratificar los nombramientos previstos en el tercer párrafo.
Artículo L225-25 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 115 3° Diario Oficial de 16 de mayo de 2001)
Cada administrador deberá ser propietario de un número de acciones de la sociedad fijado en los estatutos. Si, en el día de su nombramiento, un administrador no fuera propietario del número de acciones requerido o si, en
el curso del mandato, dejara de ser propietario de ellas, se considerará dimisionario de oficio si no regularizara su situación en el plazo de tres meses.
Las disposiciones del párrafo 1º no se aplicarán a los accionistas asalariados nombrados administradores en aplicación del artículo L.225-23.
Artículo L225-26 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
Los auditores de cuentas velarán, bajo su responsabilidad, por la observancia del cumplimiento de las disposiciones previstas en el artículo L.225-25 y denunciarán cualquier infracción de ellas en su informe a la junta general anual.
Artículo L225-27 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
Podrá ser estipulado en los estatutos que el consejo de administración incluya, además de los administradores cuyo número y modo de designación estén previstos en los artículos L.225-17 y L. 225-18, administradores elegidos o bien por el personal de la sociedad, o bien por el personal de la sociedad y el de sus filiales directas o indirectas cuya sede social esté en territorio francés. El número de estos administradores no podrá ser superior a cuatro o, en las sociedades cuyas acciones estén admitidas a negociación en un mercado regulado, a cinco, ni exceder del tercio del número de los demás administradores. Cuando el número de los administradores elegidos por los asalariados sea igual o superior a dos, los ingenieros, directivos y asimilados tendrán al menos un puesto.
Los administradores elegidos por los empleados no serán tenidos en cuenta para la determinación del número mínimo y del número máximo de administradores previstos en el artículo L. 225-17.
Artículo L225-28 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
Los administradores elegidos por los trabajadores deberán ser titulares de un contrato laboral con la sociedad o con una de sus filiales directas o indirectas cuya sede social esté en el territorio francés, establecido al menos dos años antes de su nombramiento y correspondiente a un empleo efectivo. Sin embargo, la condición de antigüedad no será requerida cuando el día del nombramiento la sociedad haya sido constituida menos de dos años antes.
Todos los empleados de la sociedad y eventualmente de sus filiales directas o indirectas con sede social en territorio francés cuyo contrato de trabajo supere los tres meses en la fecha de la elección serán electores. El voto será secreto.
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CÓDIGO DE COMERCIO Cuando al menos un puesto esté reservado a los ingenieros, directivos o asimilados, los trabajadores serán
divididos en dos colegios que votarán por separado. El primer colegio incluirá a los ingenieros, directivos y asimilados, el segundo a los demás empleados. Los estatutos determinarán la distribución de puestos por colegio en función de la estructura del personal.
Los candidatos o listas de candidatos podrán presentarse o bien por una o por varias organizaciones sindicales representativas en el sentido del artículo L.423-2 del Código de Trabajo, o bien por la veinteava parte de los electores o, si el número de éstos es superior a dos mil, por cien de ellos.
Cuando haya un solo puesto para cubrir para el conjunto del cuerpo electoral, la elección tendrá lugar por votación mayoritaria en dos vueltas. Cuando haya un solo puesto para cubrir en un colegio electoral, la elección se realizará por votación mayoritaria en dos vueltas en ese colegio. Cada candidatura deberá incluir, además del nombre del candidato, el de su substituto eventual. Saldrá elegido el candidato que haya obtenido en la primera vuelta la mayoría absoluta de los votos emitidos, en la segunda vuelta, la mayoría simple.
En los demás casos, la elección será realizada entre listas cerradas, por representación proporcional, sumando el resto obtenido a la de mayor cociente electoral. Cada lista tendrá que incluir el doble de candidatos que el número de puestos que se deban cubrir.
En caso de igualdad de votos, los candidatos cuyo contrato de trabajo sea el más antiguo, se considerarán electos. Las demás modalidades de votación deberán ser determinadas por los estatutos. Los conflictos relativos al electorado, a la elegibilidad y a la regularidad de las operaciones electorales serán
presentados ante el juez competente que decidirá al respecto en última instancia según las condiciones previstas por el primer párrafo del artículo L.433-11 del Código de Trabajo.
Artículo L225-29 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
La duración del mandato de administrador elegido por los empleados será determinado por los estatutos, sin que pueda exceder de seis años. El mandato será renovable, salvo estipulación contraria de los estatutos.
Cualquier nombramiento realizado infringiendo los artículos L.225-27, L.225-28 y el presente artículo será nulo. Esta nulidad no conllevará la de los acuerdos tomados por el administrador nombrado irregularmente.
Artículo L225-30 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
El mandato de administrador elegido por los trabajadores será incompatible con cualquier mandato de delegado sindical, de miembro del comité de empresa, de delegado del personal o de miembro del comité de higiene, de seguridad y de las condiciones laborales de la sociedad. El administrador que, en el momento de su elección, fuera titular de uno o varios de estos mandatos deberá dimitir de ellos en ocho días. Si no lo hace, se considerará que renuncia a su mandato de administrador.
Artículo L225-31 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
Los administradores elegidos por los empleados no perderán las prestaciones correspondientes a su contrato laboral. Su remuneración, en tanto que empleado, no podrá ser reducida por el hecho del ejercicio de su mandato.
Artículo L225-32 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
La ruptura del contrato de trabajo pondrá fin al mandato de administrador elegido por los empleados. Los administradores elegidos por los empleados sólo podrán ser revocados por una falta cometida en el ejercicio
de su mandato, por resolución en forma sumaria del presidente del Tribunal de grande instance otorgada en respuesta a la demanda presentada por la mayoría de los miembros del consejo de administración. Esta resolución conllevará ejecución provisional.
Artículo L225-33 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
Salvo en el caso de rescisión por iniciativa del trabajador, la ruptura del contrato laboral de un administrador elegido por los asalariados sólo podrá ser efectuada por la Sala de decisión del Conseil des prud'hommes que resolverá en forma sumaria. Esta resolución conllevará ejecución provisional.
Artículo L225-34 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
I. - En caso de vacante, por fallecimiento, dimisión, revocación, ruptura de contrato laboral o por cualquier otra causa, de un puesto de administrador elegido por los empleados, el puesto vacante será cubierto del siguiente modo:
1º Por su sustituto cuando la elección se haya efectuado por votación por mayoría en dos vueltas; 2º Por el candidato que figure inmediatamente detrás del último candidato elegido en una lista, cuando la elección
se haya realizado por votación a dicha lista. II. - El mandato de administrador así designado finalizará al concluir la candidatura normal de los otros
administradores elegidos por los empleados.
Artículo L225-35 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 106 1° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 129 Diario Oficial de 2 de agosto de 2003)
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CÓDIGO DE COMERCIO El consejo de administración determinará las orientaciones de la actividad de la sociedad y velará por que se lleve
a cabo su implantación. No obstante los poderes expresamente atribuidos en las juntas de accionistas y limitándose al objeto social. Se hará cargo de cualquier cuestión relacionada con la buena marcha de la sociedad y regulará, mediante sus acuerdos, los asuntos que le afecten.
En las relaciones con terceros, la sociedad contraerá obligaciones incluso por aquellos actos del consejo de administración no relacionados con el objeto social, a menos que pueda probar que el tercero sabía que el acto sobrepasaba este objeto o que no podía ignorarlo teniendo en cuenta las circunstancias, excluyendo que la simple publicación de los estatutos baste para probarlo.
El consejo de administración procederá a los controles y verificaciones que juzgue oportunos. El presidente o el director general de la sociedad estará obligado a remitir a cada administrador todos los documentos necesarios para el cumplimiento de su misión.
Las fianzas, avales y garantías dadas por sociedades que no sean establecimientos bancarios o financieros serán objeto de una autorización del consejo en las condiciones determinadas por decreto adoptado en Conseil d'Etat . Este decreto determinará igualmente las condiciones en las que en caso de excederse de esta autorización se pueda oponer frente a terceros.
Artículo L225-36 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
El consejo de administración podrá decidir el traslado de la sede social dentro del mismo departamento o a un departamento limítrofe, no obstante la ratificación de este acuerdo en la siguiente junta general ordinaria.
Artículo L225-36-1 (Introducido por la Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y 106 2° Diario Oficial de 16 de mayo de 2001)
Los estatutos de la sociedad determinarán las normas relativas a la convocatoria y a la toma de acuerdos por parte del consejo de administración.
Cuando no se haya reunido desde hace más de dos meses, un tercio, como mínimo, de los miembros del consejo de administración podrá solicitar al presidente que lo convoque con un orden del día determinado.
El director general podrá igualmente solicitar al presidente que convoque el consejo de administración para un orden del día determinado.
El presidente estará obligado a atender las solicitudes que le sean dirigidas en virtud de los párrafos anteriores.
Artículo L.225-37 (Ley nº 2001-420 de 15 de mayo de 2001 art. 105 y art. 109 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 art. 117 1 1º, II Diario Oficial de 2 de agosto de 2003) (Ley nº 2005-842 de 26 de julio de 2005 art. 5 I, art. 7 I Diario Oficial de 27 de julio de 2005)
El consejo de administración sólo deliberará de forma válida cuando estén presentes al menos la mitad de sus miembros. Cualquier cláusula en contrario se tendrá por no puesta.
Salvo que los estatutos previeran un mayoría más amplia, los acuerdos serán tomados por mayoría simple de los miembros que estén presentes o representados.
Salvo que el consejo se reuniera para proceder a las operaciones citadas en los artículos L.232-1 y L.233-16, y salvo disposición en contrario de los estatutos, el reglamento interno podrá prever que sean considerados presentes, para el cálculo del quórum y de la mayoría, los administradores que participen en la reunión del consejo utilizando medios de videoconferencia o telecomunicación que permitan su identificación y garanticen su participación efectiva, y cuya naturaleza y condiciones de aplicación serán determinadas por decreto adoptado en Conseil d'Etat. Los estatutos podrán limitar la naturaleza de los acuerdos tomados en tales reuniones y contemplar un derecho de impugnación de dichos acuerdos en beneficio de un determinado número de administradores.
Salvo disposición en contrario de los estatutos, en caso de empate en la votación, el presidente tendrá voto de calidad.
Los administradores, así como toda persona convocada para asistir a las reuniones del consejo de administración, estarán obligados a mantener discreción con relación a las informaciones que presenten un carácter confidencial y sean consideradas como tales por el presidente del consejo de administración.
En las sociedades que realicen llamamiento público al ahorro, el presidente del consejo de administración rendirá cuentas, en un informe que añadirá al informe mencionado en los artículos L.225-100, L.225-102, L.225-102-1 y L.233-26, sobre las condiciones de preparación y la organización de los trabajos del consejo, así como sobre los procedimientos de control interno previstos por la sociedad. Sin perjuicio de las disposiciones del artículo L.225-56, el informe indicará igualmente las limitaciones eventuales que el consejo de administración imponga a las facultades del director general.
Artículo L225-38 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 111 1° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 123 I 6° Diario Oficial de 2 de agosto de 2003)
Cualquier contrato concluido directamente o por persona interpuesta entre la sociedad y su director general, uno de sus directores generales delegados, uno de sus administradores, uno de sus accionistas que disponga de una fracción de derechos de voto superior al 10 % o, si se trata de una sociedad accionista, la sociedad que la controle en el sentido del artículo L.233-3, deberá ser sometido a la autorización previa del consejo de administración.
Lo mismo ocurrirá con los contratos en los que una de las personas citadas en el párrafo anterior esté indirectamente interesada.
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CÓDIGO DE COMERCIO Estarán igualmente sometidos a autorización previa los contratos concluidos entre una sociedad y una empresa, si
el director general, uno de los directores generales delegados o uno de los administradores de la sociedad fuera propietario, socio ilimitadamente responsable, gerente, administrador, miembro del consejo de supervisión o, de modo general, dirigente de dicha empresa.
Artículo L225-39 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 111 5° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 123 I 1° Diario Oficial de 2 de agosto de 2003)
Las disposiciones del artículo L. 225-38 no serán aplicables a los contratos que consistan en operaciones corrientes y concertadas en condiciones normales.
No obstante, dichos contratos deberán ser comunicados por el interesado al presidente del consejo de administración, salvo si debido a su objeto o a sus implicaciones financieras, éstos no fueran significativos para ninguna de las partes. La lista y el objeto de dichos contratos serán comunicados por el presidente a los miembros del consejo de administración y a los auditores de cuentas.
Artículo L225-40 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 111 8° Diario Oficial de 16 de mayo de 2001)
El interesado estará obligado a informar al consejo, en cuanto tenga conocimiento de un acuerdo en el que sea aplicable el artículo L.225-38. No podrá tomar parte en la votación tras solicitar la autorización.
El presidente del consejo de administración presentará a los auditores de cuentas todos los contratos autorizados y los someterá a la aprobación de la junta general.
Los auditores de cuentas presentarán sobre estos contratos un informe especial a la junta, la cual decidirá basándose en él.
El interesado no podrá tomar parte en la votación y sus acciones no serán tenidas en cuenta para el cálculo del quórum y de la mayoría.
Artículo L225-41 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 111 10° Diario Oficial de 16 de mayo de 2001)
Los contratos aprobados por la junta, así como los que ésta rechace, producirán sus efectos con relación a terceros, salvo cuando resulten anulados en caso de fraude.
Incluso en ausencia de fraude, las consecuencias perjudiciales para la sociedad de los contratos no aprobados podrán ser consideradas responsabilidad del administrador o del director general interesado y, eventualmente, de los otros miembros del consejo de administración.
Artículo L225-42 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 111 10° Diario Oficial de 16 de mayo de 2001)
Sin perjuicio de la responsabilidad del interesado, los contratos citados en el artículo L.225-38 y concluidos sin autorización previa del consejo de administración podrán ser anulados si hubiesen tenido consecuencias perjudiciales para la sociedad.
La acción de nulidad prescribirá a los tres años, contados a partir de la fecha del contrato. Sin embargo, si el contrato hubiera sido ocultado, el plazo de la prescripción empezará a contar desde el día en que se haya tenido conocimiento de éste.
La nulidad podrá ser convalidada por un voto de la junta general en base al informe especial de los auditores de cuentas en que se expongan las circunstancias por las cuales no se ha seguido el procedimiento de autorización. Serán de aplicación las disposiciones del párrafo 4º del artículo L. 225-40.
Artículo L225-43 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 111 11° Diario Oficial de 16 de mayo de 2001)
Bajo pena de nulidad del contrato, se prohibirá a los administradores que no sean personas jurídicas suscribir préstamos de la sociedad, sea cual fuere su forma, ni hacerse cubrir por ella un descubierto, en cuenta corriente o en otra forma, así como hacerla garantizar o avalar sus obligaciones frente a terceros.
Sin embargo, si la sociedad explotara una entidad bancaria o financiera, esta prohibición no afectará a las operaciones corrientes de este tipo de comercio concertadas en condiciones normales.
La misma prohibición se aplicará al director general, a los directores generales delegados y a los representantes permanentes de las entidades con personalidad jurídica que ejerzan de administradoras. Ésta se aplicará igualmente a los cónyuges, ascendientes y descendientes de las personas citadas en el presente artículo así como a toda persona interpuesta.
Esta prohibición no se aplicará a los préstamos que fueran concedidos por la sociedad en aplicación de las disposiciones del artículo L.313-1 del Código de la Construcción y la Vivienda a los administradores elegidos por los trabajadores.
Artículo L225-44 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
No obstante lo dispuesto en el artículo L 225-22 y en el artículo L. 225-27, los administradores no podrán percibir de la sociedad remuneración alguna, permanente o no, exceptuando lo previsto en los artículos L. 225-45, L. 225-46, L. 225-47 y L. 225-53.
Toda cláusula estatutaria contraria se tendrá por no puesta y todo acuerdo contrario será nulo.
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CÓDIGO DE COMERCIO Artículo L225-45 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 117 I Diario Oficial de 16 de mayo de 2001)
La junta general podrá pagar a sus administradores como remuneración por su actividad, a título de dietas de asistencia, una suma fija anual que esta junta determinará sin estar vinculada por disposiciones estatutarias o por decisiones anteriores. Esta suma será con cargo a los gastos de explotación. Su distribución entre los administradores será determinada por el consejo de administración.
Artículo L225-46 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
El consejo de administración podrá conceder remuneraciones excepcionales, para las misiones o mandatos confiados a administradores. En ese caso, estas remuneraciones, con cargo a los gastos de explotación estarán sujetas a las disposiciones de los L. 225-38 à L. 225-42.
Artículo L225-47 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
El consejo de administración elegirá de entre sus miembros a un presidente que deberá ser una persona física, bajo pena de nulidad del nombramiento. El mismo consejo determinará su remuneración.
El presidente será designado por un período que no podrá ser superior al de su mandato de administrador. Podrá ser reelegido.
El consejo de administración podrá revocarlo en todo momento. Cualquier disposición contraria se tendrá por no puesta.
Artículo L225-48 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
Los estatutos deberán prever para el ejercicio de las funciones del presidente del consejo de administración un límite de edad, que a falta de disposición expresa, se fijará en setenta y cinco años.
Todo nombramiento que vulnere las disposiciones previstas en el párrafo anterior será nulo. Cuando un presidente de un consejo de administración alcance este límite de edad, será considerado dimisionario
de oficio.
Artículo L225-50 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
En caso de incapacidad temporal o de fallecimiento del presidente, el consejo de administración podrá delegar las funciones de presidente en un administrador.
En caso de incapacidad temporal, esta delegación será otorgada por un plazo limitado. Podrá ser renovada. En caso de fallecimiento, tendrá validez hasta la elección del nuevo presidente.
Artículo L225-51 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 106 3° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 117 I 3° Diario Oficial de 2 de agosto de 2003)
El presidente del consejo de administración organizará y dirigirá las labores de éste, de las que dará cuenta a la junta general. Velará por el buen funcionamiento de los órganos de la sociedad y se asegurará, en concreto, de que los administradores sean capaces de cumplir con su misión.
Artículo L225-51-1 (Introducido por la Ley nº 2001-420 de 1 de agosto de 2001 Artículo 105 y Artículo 106 4° Diario Oficial de 16 de mayo de 2001)
La dirección general de la sociedad será asumida, bajo su responsabilidad, bien por el presidente del consejo de administración, bien por otra persona física nombrada por el consejo de administración, la cual ostentará el título de director general.
En las condiciones definidas por los estatutos, el consejo de administración escogerá entre las dos modalidades de ejercicio de la dirección general citadas en el párrafo 1º. Los accionistas y terceros serán informados de esta elección en las condiciones definidas por decreto adoptado en Conseil d'Etat .
Cuando la dirección general de la sociedad sea asumida por el presidente del consejo de administración, serán aplicables las disposiciones de la presente subsección relativas al director general.
Artículo L225-52 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 Diario Oficial de 16 de mayo de 2001)
En caso de apertura de un procedimiento de suspensión de pagos o de liquidación judicial en aplicación del título II del libro VI, las personas mencionadas por estas disposiciones podrán ser consideradas responsables del pasivo social y serán sometidas a inhabilitaciones y privaciones de derechos en las condiciones previstas por dichas disposiciones.
Artículo L225-53 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 107 1° Diario Oficial de 16 de mayo de 2001)
Previa proposición del director general, el consejo de administración podrá nombrar a una o varias personas físicas encargadas de asistir al director general, con el título de director general delegado.
Los estatutos fijarán el número máximo de directores generales delegados, que no podrá pasar de cinco. El consejo de administración determinará la remuneración del director general y de los directores generales
delegados.
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CÓDIGO DE COMERCIO Artículo L225-54 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 107 2° Diario Oficial de 16 de mayo de 2001)
Los estatutos deberán prever para el ejercicio de las funciones de director general o de director general delegado un límite de edad que, a falta de disposición expresa, será fijado en sesenta y cinco años.
Todo nombramiento que vulnere las disposiciones previstas en el párrafo anterior será nulo. Cuando un director general o un director general delegado alcance el límite de edad, será considerado dimisionario
de oficio.
Artículo L225-54-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 110 3° Diario Oficial de 16 de mayo de 2001) (Ley nº 2002-1303 de 29 de octubre de 2002 Artículo 1 II Diario Oficial de 30 de octubre de 2002)
Una persona física no podrá ejercer simultáneamente más de un mandato de director general de sociedades anónimas que tengan su sede en territorio francés.
Por excepción a lo establecido por las disposiciones del párrafo primero: - una persona física podrá ejercer un segundo mandato de director general o un mandato de miembro del
directorio o de director general único en una sociedad controlada en el sentido del artículo L.233-16 por la sociedad de la que es director general;
- una persona física que ejerza un mandato de director general en una sociedad también podrá ejercer un mandato de director general, de miembro del directorio o de director general único en una sociedad, siempre que los títulos de éstas no estén admitidos a negociación en un mercado regulado.
Cualquier persona física que infrinja las disposiciones del presente artículo deberá dimitir de uno de sus mandatos dentro de los tres meses siguientes a su nombramiento o del mandato en cuestión en los tres meses posteriores al hecho que haya conllevado la desaparición de una de las condiciones determinadas en el párrafo anterior. Tras la expiración de este plazo, será considerada destituida, según el caso, o bien de su nuevo mandato, o bien del mandato que ya no responda a las condiciones fijadas en el párrafo anterior, y deberá restituir las remuneraciones percibidas, sin que sea, por ello, cuestionada la validez de los acuerdos en los que haya tomado parte.
Artículo L225-55 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 107 3° Diario Oficial de 16 de mayo de 2001)
El cargo de director general será revocable en todo momento por el consejo de administración. Lo mismo sucederá, por proposición del director general, de los directores generales delegados. Si se decidiera la revocación sin un motivo justificado, ésta podrá dar lugar a responsabilidad por daños y perjuicios, salvo cuando el director general asuma las funciones de presidente del consejo de administración.
Cuando el director general cese en sus funciones o sea incapaz de ejercerlas, los directores generales delegados conservarán sus funciones y sus atribuciones, salvo decisión contraria del consejo, hasta que sea nombrado el nuevo director general.
Artículo L225-56 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 105 y Artículo 107 4° Diario Oficial de 16 de mayo de 2001)
I. - El director general tendrá los más amplios poderes para actuar en toda circunstancia en nombre de la sociedad. Ejercerá estos poderes con el límite del objeto social y ateniéndose a los que la Ley atribuye expresamente a las juntas de accionistas y al consejo de administración.
Representará a la sociedad en sus relaciones con terceros. La sociedad será responsable incluso de los actos del director general que no correspondan al objeto social, a no ser que pruebe que el tercero sabía que el acto lo sobrepasaba o que no podía ignorarlo dadas las circunstancias, sin que la mera publicación baste como prueba.
Las disposiciones de los estatutos o las decisiones del consejo de administración que limiten los poderes del director general no serán oponibles frente a terceros.
II. - De acuerdo con el director general, el consejo de administración determinará la amplitud y la duración de los poderes otorgados a los directores generales delegados.
Los directores generales delegados dispondrán, con relación a terceros, de los mismos poderes que el director general.
Artículo L.225-22-1 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 8 I Diario Oficial de 27 de julio de 2005)
En las sociedades cuyos títulos estén admitidos a negociación en un mercado regulado, en caso de nombramiento en las funciones de presidente, director general o director general delegado de una persona vinculada por contrato laboral a la sociedad o a cualquier sociedad controlada o que la controle en el sentido de los puntos II y III del artículo L.223-16, estarán sujetas a lo dispuesto en los artículos L.225-38 y L.225-40 a L.225-42 las cláusulas de dicho contrato relativas a la remuneración, las indemnizaciones o las ventajas que fueran adeudadas en razón del cese o cambio en las funciones.
NOTA: Ley n° 2005-842 de 26 de julio de 2005 art. 8 II: lo dispuesto en el artículo 8 I será de aplicación a los convenios suscritos a partir de 1 de mayo de 2005.
Artículo L.225-42-1 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 8 I Diario Oficial de 27 de julio de 2005)
En las sociedades cuyos títulos estén admitidos a negociación en un mercado regulado, estarán sujetos a lo dispuesto en los artículos L.225-38 y L.225-40 a L.225-42 los compromisos que hubieran sido adoptados en beneficio
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CÓDIGO DE COMERCIO de sus presidentes, directores generales o directores generales delegados por la propia sociedad o por cualquier sociedad controlada o que la controle en el sentido de los puntos II y III del artículo L.223-16, y fueran relativos a la remuneración, las indemnizaciones o las ventajas que les fueran adeudadas en razón del cese o cambio en las funciones, o posteriormente a las mismas.
NOTA: Ley n° 2005-842 de 26 de julio de 2005 art. 8 II: lo dispuesto en el artículo 8 I será de aplicación a los convenios suscritos a partir de 1 de mayo de 2005.
Subsección 2 Del directorio y del consejo de supervisión Artículos L225-57 a
L225-90-1
Artículo L225-57 Los estatutos de cualquier sociedad anónima podrán estipular que ésta se rija por las disposiciones de la presente
subsección. En este caso, la sociedad quedará sometida al conjunto de las reglas aplicables a las sociedades anónimas, con exclusión de las previstas en los artículos L.225-17 a L.225-56.
La introducción en los estatutos de esta cláusula, o su supresión, podrá ser decidida en el transcurso de la existencia de la sociedad.
Artículo L225-58 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 4 y anexo II Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
La sociedad anónima será dirigida por un directorio compuesto por un máximo de cinco miembros. Cuando las acciones de la sociedad estén admitidas a negociación en un mercado regulado, ese número podrá ser ampliado por los estatutos a siete.
En las sociedades anónimas cuyo capital sea inferior a 150.000 euros, las funciones reservadas al directorio podrán ser ejercidas por una sola persona.
El directorio ejercerá sus funciones bajo el control de un consejo de supervisión.
Artículo L225-59 Los miembros del directorio serán nombrados por el consejo de supervisión que otorgará a uno de ellos la
condición de presidente. Cuando una sola persona ejerza las funciones destinadas al directorio, adoptará el título de director general único. Los miembros del directorio o el director general único serán personas físicas, bajo pena de nulidad del
nombramiento. Podrán ser escogidos para tales cargos personas no accionistas.
Artículo L225-60 Los estatutos deberán prever para el ejercicio de las funciones de miembro del directorio o de director general
único un límite de edad que, a falta de disposición expresa, se fijará en los sesenta y cinco años. Todo nombramiento que vulnere las disposiciones previstas en el párrafo anterior será nulo. Cuando un miembro del directorio o el director general único alcance el límite de edad, será considerado
dimisionario de oficio.
Artículo L225-61 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 108 Diario Oficial de 16 de mayo de 2001)
Los miembros del directorio o el director general único podrán ser revocados por la junta general y, si los estatutos lo previeran, por el consejo de supervsión. Si la revocación se decidiera sin motivo justificado, podrá dar lugar a indemnización por daños y perjuicios.
En el caso en que el interesado hubiera concertado con la sociedad un contrato laboral, la revocación de sus funciones de miembro del directorio no tendrá por efecto la rescisión de dicho contrato.
Artículo L225-62 Los estatutos determinarán la duración del mandato del directorio entre los límites comprendidos entre dos y seis
años. Si no se precisase en los estatutos, la duración del mandato será de cuatro años. En caso de vacante, el substituto será nombrado por el tiempo que falte para la renovación del directorio.
Artículo L225-63 El acta de nombramiento fijará el modo y el importe de la remuneración de cada uno de los miembros del
directorio.
Artículo L225-64 El directorio estará investido de los poderes más amplios para actuar en cualquier circunstancia en nombre de la
sociedad. Los ejercerá en el límite del objeto social y ateniéndose a los expresamente atribuidos por la Ley al consejo de supervisión y a las juntas de accionistas.
En las relaciones con terceros, la sociedad será responsable incluso por los actos del directorio que no se refieran al objeto social, a menos que pruebe que el tercero sabía que el acto sobrepasaba este objeto o que no podía ignorarlo teniendo en cuenta las circunstancias, quedando excluido que la simple publicación de los estatutos baste para probarlo.
Las disposiciones de los estatutos que limiten los poderes del directorio no podrán oponerse frente a terceros. El directorio deliberará y tomará sus decisiones en las condiciones determinadas por los estatutos.
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CÓDIGO DE COMERCIO Artículo L225-65
El consejo de supervisión podrá decidir el traslado de la sede social en el mismo departamento o a un departamento limítrofe, condicionado a la ratificación de esta decisión por la siguiente junta general ordinaria.
Artículo L225-66 El presidente del directorio o, en su caso, el director general único representará a la sociedad en sus relaciones
frente a terceros. Sin embargo, los estatutos podrán habilitar al consejo de supervisión para atribuir el mismo poder de
representación a uno o a varios de los demás miembros del directorio, que llevarán entonces el título de director general.
Las disposiciones de los estatutos que limiten el poder de representación de la sociedad no serán oponibles frente a terceros.
Artículo L225-67 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 110 4° Diario Oficial de 16 de mayo de 2001) (Ley nº 2002-1303 de 29 de octubre de 2002 Artículo 1 III Diario Oficial de 30 de octubre de 2003)
Una persona física no podrá ejercer más de un mandato de miembro del directorio o de director general único de sociedades anónimas que tengan su sede social en territorio francés.
Por excepción a lo establecido por las disposiciones del párrafo primero: - una persona física puede ejercer un segundo mandato de director general o un mandato de miembro del
directorio o de director general único en una sociedad controlada en el sentido del artículo L.233-16 por la sociedad de la que es director general;
- una persona física que ejerza un mandato de director general en una sociedad también puede ejercer un mandato de director general, de miembro del directorio o de director general único en una sociedad, siempre que los títulos de éstas no estén admitidos a negociación en un mercado regulado.
Cualquier persona física que infrinja las disposiciones del presente artículo deberá dimitir de uno de sus mandatos dentro de los tres meses siguientes a su nombramiento o del mandato en cuestión en los tres meses posteriores al hecho que haya conllevado la desaparición de una de las condiciones determinadas en el párrafo anterior. Tras la expiración de este plazo, será considerada destituida, según el caso, o bien de su nuevo mandato, o bien del mandato que ya no responda a las condiciones fijadas en el párrafo anterior, y deberá restituir las remuneraciones percibidas, sin que sea, por ello, cuestionada la validez de los acuerdos en los que haya tomado parte.
Artículo L.225-68 (Ley nº 2003-706 de 1 de agosto de 2003 art. 117 I 2º Diario Oficial de 2 de agosto de 2003) (Ley nº 2005-842 de 26 de julio de 2005 art. 7 II, art. 11 II Diario Oficial de 27 de julio de 2005)
El consejo de supervisión ejercerá el control permanente de la gestión de la sociedad que realice el directorio. Los estatutos podrán subordinar a la autorización previa del consejo de supervisión la conclusión de las
operaciones que enumeren. Sin embargo, la cesión de bienes inmuebles por naturaleza, la cesión total o parcial de participaciones, la constitución de garantías, fianzas y avales, salvo en las sociedades que gestionen una entidad bancaria o financiera, serán objeto de una autorización del consejo de supervisión en las condiciones determinadas por decreto adoptado en Conseil d'Etat. Dicho decreto determinará igualmente las condiciones en las que, en caso de excederse esta autorización, sea posible la oponibilidad frente a terceros.
El consejo de supervisión podrá realizar en cualquier momento las verificaciones y controles que juzgue oportunos y podrá solicitar que le sean mostrados los documentos que estime necesarios para el cumplimiento de su misión.
El directorio presentará un informe al consejo de supervisión al menos una vez por trimestre. Tras el cierre de cada ejercicio y en el plazo fijado por decreto adoptado en Conseil d'Etat, el directorio le
presentará, a efectos de verificación y control, los documentos citados en el segundo párrafo del artículo L.225-100. El consejo de supervisión presentará a la junta general prevista en el artículo L.225-100 sus observaciones sobre el
informe del directorio y las cuentas del ejercicio. En las sociedades que realicen llamamiento público al ahorro, el presidente del consejo de supervisión rendirá
cuentas a la junta general, en un informe que añadirá al informe mencionado en el párrafo anterior y en el artículo L.233-26, sobre las condiciones de preparación y organización de los trabajos del consejo, así como sobre los procedimientos de control interno previstos por la sociedad.
Artículo L225-69 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 104 2° Diario Oficial de 16 de mayo de 2001)
El consejo de supervisión estará compuesto de al menos tres miembros. Los estatutos determinarán el número máximo de los miembros del consejo, que está limitado a dieciocho.
Artículo L225-70 Los estatutos deberán prever para el ejercicio de las funciones de miembro del consejo de supervisión un límite de
edad que se aplicará, bien al conjunto de los miembros del consejo de supervisión, o bien a un porcentaje determinado de ellos.
Si no hubiera disposición expresa en los estatutos, el número de miembros del consejo de supervisión que hayan alcanzado la edad de setenta años no podrá ser superior a un tercio de los miembros del consejo de supervisión en funciones.
Todo nombramiento que vulnere las disposiciones previstas en el párrafo anterior será nulo.
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CÓDIGO DE COMERCIO Si no existiese una disposición expresa en los estatutos que prevea otro procedimiento, cuando el límite estatutario
o legal determinado para la edad de los administradores se haya sobrepasado, el administrador de más edad será considerado dimisionario de oficio.
Artículo L225-71 (Ley nº 2001-152 de 19 de febrero de 2001 Artículo 24 3° y 4° y Artículo 25 II Diario Oficial de 20 de febrero de 2001) (Ley nº 2001-1168 de 11 de diciembre de 2001 Artículo 33 III Diario Oficial de 12 de diciembre de 2003) (Ley nº 2002-73 de 17 de enero de 2002 Artículo 217 3° y 4º Diario Oficial de 18 de enero de 2002)
Cuando el informe presentado por el consejo de administración con ocasión de la junta general en aplicación del artículo L. 225-102 estableciese que las acciones detentadas por el personal de la sociedad así como por el personal de las sociedades que están vinculadas a ella en el sentido del artículo L. 225-180, representen más del 3% del capital social de la sociedad, uno o varios miembros del consejo de supervisión deberán ser nombrados por la junta general de accionistas a propuesta de los accionistas citados en el artículo L. 225-102, en las condiciones determinadas por decreto. Estos miembros deberán ser designados entre los trabajadores accionistas o, llegado el caso, entre los asalariados miembros del consejo de supervisión de un fondo de inversión colectiva de la empresa que posea acciones de la sociedad. Estos miembros serán tomados en cuenta para la determinación del número mínimo y del número máximo de miembros del consejo de supervisión previstos en el artículo L.225-69.
Si la junta general extraordinaria no se hubiera reunido en un plazo de dieciocho meses contando desde la presentación del informe, todo trabajador accionista podrá solicitar al presidente del Tribunal que resuelva en procedimiento de urgencia, para que requiera, bajo pena de multa, al directorio la convocatoria de una junta general extraordinaria y someta a ésta los proyectos de resoluciones que busquen la modificación de los estatutos en el sentido previsto en el párrafo anterior y en el último párrafo del presente artículo.
Cuando se haya admitido a trámite la demanda, la sanción y los gastos de procedimiento correrán a cargo de los miembros del directorio.
Las sociedades cuyo consejo de supervisión incluya uno o varios miembros nombrados entre los miembros del consejo de supervisión de los fondos colectivos de inversión de valores de empresa que representen a los trabajadores, o uno o varios empleados elegidos en aplicación de las disposiciones del artículo L. 225-79, no estarán sujetas a las obligaciones previstas en el primer párrafo.
Cuando la junta general extraordinaria sea convocada en aplicación del primer párrafo, se pronunciará igualmente sobre un proyecto de resolución que prevea la elección de uno o varios miembros del consejo de supervisión por el personal de la sociedad y de las filiales directas o indirectas cuyas sedes sociales estén en Francia. Llegado el caso, estos representantes serán designados en las condiciones previstas en el artículo L.225-79.
Artículo L225-72 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 115 4° Diario Oficial de 16 de mayo de 2001)
Cada miembro del consejo de supervisión deberá ser propietario de un número de acciones de la sociedad determinado por los estatutos.
Si, el día de su nombramiento, un miembro del consejo de supervisión no fuera propietario del número de acciones necesario o si, en el transcurso del mandato, deja de ser propietario de ellas, será considerado dimisionario de oficio si no hubiera regularizado su situación en el plazo de tres meses.
Las disposiciones del primer párrafo no se aplicarán a los accionistas trabajadores nombrados miembros del consejo de supervisión en aplicación del artículo L.225-71.
Artículo L225-73 Los auditores de cuentas velarán, bajo su responsabilidad, por la observancia del cumplimiento de las
disposiciones previstas en el artículo L.225-72 y denunciarán cualquier infracción de ellas en su informe a la junta general anual.
Artículo L225-74 Ningún miembro del consejo de supervisión podrá formar parte del directorio.
Artículo L225-75 Los miembros del consejo de supervisión serán nombrados por la junta general constitutiva o por la junta general
ordinaria. En el caso previsto en el artículo L.225-16, serán designados por los estatutos. La duración de sus funciones será determinada por los estatutos, sin que pueda exceder de los seis años en caso de nombramiento por las juntas generales y de tres años en caso de nombramiento en los estatutos. Sin embargo, en caso de fusión o de escisión, el nombramiento podrá efectuarse por la junta general ordinaria.
Podrán volver a ser elegibles, salvo estipulación contraria de los estatutos. Podrán ser revocados en todo momento por la junta general ordinaria.
Cualquier nombramiento producido realizado en contra de las disposiciones anteriores será nulo con excepción de aquéllos a los que se pueda proceder en las condiciones previstas en el artículo L.225-78.
Artículo L225-76 Una persona jurídica podrá ser designada para formar parte del consejo de supervisión. En el momento de su
nombramiento estará obligada a designar un representante permanente que estará sometido a las mismas condiciones y obligaciones y que incurrirá en las mismas responsabilidades civil y penal que si fuese miembro del consejo en su propio nombre, sin perjuicio de la responsabilidad solidaria de la personalidad jurídica a la que representa.
Cuando la personalidad jurídica revoque a su representante, estará obligada a nombrar al mismo tiempo un
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CÓDIGO DE COMERCIO sustituto.
Artículo L225-77 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 110 5° Diario Oficial de 16 de mayo de 2001) (Ley nº 2002-1303 de 29 de octubre de 2002 Artículo 1 IV Diario Oficial de 30 de octubre de 2002)
Una persona física no podrá ejercer simultáneamente más de cinco mandatos de miembro del consejo de supervisión de sociedades anónimas que tengan su sede social en el territorio francés.
Por excepción a lo establecido por las disposiciones del párrafo primero, no serán tenidos en cuenta los mandatos miembro del consejo de supervisión o de administrador ejercidos por esta persona en las sociedades que estén controladas, en el sentido del artículo L.233-16, por la sociedad de cuyo consejo de supervisión ya sea miembro.
Para la aplicación de las disposiciones del presente artículo, los mandatos de miembro del consejo de supervisión de las sociedades cuyos títulos no estén admitidos a negociación en un mercado regulado y de las sociedades que estén controladas en el sentido del artículo L. 233-16 por una misma sociedad, equivaldrán a un solo un mandato, siempre que el número de mandatos acumulados no exceda de cinco.
Cualquier persona física que infrinja las disposiciones del presente artículo deberá dimitir de uno de sus mandatos dentro de los tres meses siguientes a su nombramiento o del mandato en cuestión en los tres meses posteriores al hecho que haya conllevado la desaparición de una de las condiciones determinadas en el párrafo anterior. Tras la expiración de este plazo, será considerada destituida, según el caso, o bien de su nuevo mandato, o bien del mandato que ya no responda a las condiciones fijadas en el párrafo anterior, y deberá restituir las remuneraciones percibidas, sin que sea, por ello, cuestionada la validez de los acuerdos en los que haya tomado parte.
Artículo L225-78 En caso de vacante por fallecimiento o por dimisión de uno o varios miembros del consejo de supervisión, este
consejo podrá proceder a nombramientos de forma provisional en el período que media entre dos juntas generales. Cuando el número de miembros del consejo de supervisión llegue a ser inferior al mínimo legal, el directorio deberá
convocar inmediatamente la junta general ordinaria para cubrir todas las vacantes del consejo de supervisión. Cuando el número de miembros del consejo de supervisión llega a ser inferior al mínimo estatutario, sin ser no
obstante inferior al mínimo legal, el consejo de supervisión deberá proceder a nombramientos a título provisional para completar la totalidad de miembros en el plazo de tres meses a partir del día en que se produzca la vacante.
Los nombramientos efectuados por el consejo, en virtud de los párrafos 1º y 3º anteriores, serán sometidos a la ratificación de la siguiente junta general ordinaria. A falta de ratificación, no por ello perderán validez los acuerdos y los actos realizados anteriormente por el consejo.
Cuando el consejo no procediese a efectuar los nombramientos requeridos o si la junta no fuese convocada, cualquier interesado podrá demandar judicialmente la designación de un mandatario encargado de convocar la junta general, para proceder a los nombramientos o ratificar los nombramientos previstos en el párrafo 3º.
Artículo L225-79 Podrá establecerse en los estatutos que el consejo de supervisión, además de los miembros cuyo número y modo
de designación estén previstos en los artículos L.225-69 y L.225-75, incluya miembros elegidos o bien por el personal de la sociedad, o bien por el personal de la sociedad y el de sus filiales directas o indirectas cuya sede social esté en territorio francés.
El número de miembros del consejo de supervisión elegidos por los trabajadores no podrá ser superior a cuatro ni exceder de un tercio del número de los demás miembros. Cuando el número de los miembros elegidos por los empleados fuera igual o superior a dos, los ingenieros, directivos y asimilados tendrán al menos un puesto.
Los miembros del consejo de supervisión elegidos por los empleados no serán tenidos en cuenta para la determinación del número mínimo y del número máximo de los miembros previstos en el artículo L. 225-69.
Artículo L225-80 Las condiciones relativas a la elegibilidad, al electorado, a la composición de los colegios, a las modalidades de la
votación, a las impugnaciones, a la duración y a las condiciones del ejercicio del mandato, a la revocación, a la protección del contrato laboral y a la sustitución de los miembros del consejo de supervisión elegidos por los empleados serán determinadas por las normas de los artículos L. 225-28 a L. 225-34.
Artículo L225-81 El consejo de supervisión elegirá en su seno a un presidente y a un vicepresidente que estarán encargados de
convocar el consejo y de dirigir sus debates. Determinará, si lo considerase oportuno, su remuneración. Bajo pena de la nulidad de su nombramiento, el presidente y el vicepresidente del consejo de supervisión serán
personas físicas. Ejercerán sus funciones mientras dure el mandato del consejo de supervisión.
Artículo L.225-82 (Ley nº 2001-420 de 15 de mayo de 2001 art. 109 2º Diario Oficial de 16 de mayo de 2001) (Ley nº 2005-842 de 26 de julio de 2005 art. 5 II Diario Oficial de 27 de julio de 2005)
El consejo de supervisión sólo deliberará de forma válida cuando estén presentes al menos la mitad de sus miembros.
Salvo que los estatutos previeran un mayoría más amplia, los acuerdos serán tomados por mayoría simple de los miembros que estén presentes o representados.
Salvo que el consejo se reuniera para proceder a las operaciones citadas en el párrafo quinto del artículo L.225-68, y salvo disposición en contrario de los estatutos, el reglamento interno podrá prever que sean considerados presentes,
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CÓDIGO DE COMERCIO para el cálculo del quórum y de la mayoría, los miembros del consejo de supervisión que participen en la reunión utilizando medios de videoconferencia o telecomunicación que permitan su identificación y garanticen su participación efectiva, y cuya naturaleza y condiciones de aplicación serán determinadas por decreto adoptado en Conseil d'Etat. Los estatutos podrán limitar la naturaleza de los acuerdos tomados en tales reuniones y contemplar un derecho de impugnación de dichos acuerdos en beneficio de un determinado número de miembros del consejo de supervisión.
Salvo disposición en contrario de los estatutos, en caso de empate en la votación, el presidente tendrá voto de calidad.
Artículo L225-83 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 117 II Diario Oficial de 16 de mayo de 2001)
La junta general podrá abonar a los miembros del consejo de supervisión, como remuneración por su actividad, en concepto de dietas de asistencia, una suma fija anual que esta junta determinará sin estar vinculada a las disposiciones estatutarias o decisiones anteriores. Esta suma será con cargo a los gastos de explotación. Su distribución entre los miembros del consejo de supervisión será determinada por él mismo.
Artículo L225-84 El consejo de supervisión podrá conceder excepcionalmente remuneraciones para las misiones o mandatos
confiados a miembros de este consejo. En ese caso, estas remuneraciones que se incluirán en los gastos de explotación, estarán sujetas a las disposiciones de los artículos L.225-86 a L.225-90.
Artículo L225-85 Los miembros del consejo de supervisión no podrán recibir de la sociedad remuneraciones, permanentes o no, que
no sean las previstas en los artículos L.225-81, L. 225-83 y L. 225-84 y, en su caso, las debidas en concepto del contrato laboral correspondiente a un empleo efectivo.
El número de miembros del consejo de supervisión vinculados a la sociedad por una relación laboral no podrá exceder de un tercio de los miembros en funciones. Sin embargo, los miembros del consejo de supervisión elegidos en conformidad a los artículos L. 225-79 y L. 225-80 y los nombrados de conformidad con el artículo L.225-71 no serán tenidos en cuenta para el cómputo de este número.
Toda cláusula estatutaria contraria se tendrá por no puesta y todo acuerdo contrario será nulo.
Artículo L225-86 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 111 2° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 123 I 6° Diario Oficial de 2 de agosto de 2003)
Todo contrato realizado directamente o por persona interpuesta entre la sociedad y uno de los miembros del directorio o del consejo de supervisión, un accionista que disponga de una fracción de los derechos de voto superior al 10 % o, si se tratase de una sociedad accionista, la sociedad que la controla en el sentido del artículo L.233-3, deberá ser sometido a la autorización previa del consejo de supervisión.
Lo mismo ocurrirá con los contratos en los que una de las personas citadas en el párrafo anterior esté indirectamente interesada.
Serán igualmente sometidas a la autorización previa los contratos realizados entre la sociedad y una empresa, si uno de los miembros del directorio, o del consejo de supervisión de la sociedad fuera propietario, socio ilimitadamente responsable, gerente, administrador, miembro del consejo de supervisión o, de modo general, dirigente de esta empresa.
Artículo L225-87 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 111 7° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 123 I 2° Diario Oficial de 2 de agosto de 2003)
Las disposiciones del artículo L. 225-86 no serán aplicables a los contratos que consistan en operaciones corrientes y concertadas en condiciones normales.
No obstante, dichos contratos deberán ser comunicados por el interesado al presidente del consejo de supervisión, salvo si debido a su objeto o a sus implicaciones financieras, éstos no fueran significativos para ninguna de las partes. La lista y el objeto serán comunicados por el presidente a los miembros del consejo de supervisión y a los auditores de cuentas.
Artículo L225-88 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 111 9° Diario Oficial de 16 de mayo de 2001)
El interesado estará obligado a informar al consejo de supervisión, en cuanto tenga conocimiento de un acuerdo en el que sea aplicable el artículo L. 225-86. Si forma parte del consejo de supervisión, no podrá tomar parte en la votación tras solicitar la autorización.
El presidente del consejo de supervisión presentará a los auditores de cuentas todos los contratos autorizados y someterá éstos a la aprobación de la junta general.
Los auditores de cuentas presentarán sobre estos contratos un informe especial a la junta, la cual decidirá basándose en él.
El interesado no podrá tomar parte en la votación y sus acciones no serán tenidas en cuenta para el cálculo del quórum y de la mayoría.
Artículo L225-89 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 111 12° Diario Oficial de 16 de mayo de 2001)
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CÓDIGO DE COMERCIO Los contratos aprobados por la junta, así como los que ésta rechace, producirán sus efectos con relación a
terceros, salvo cuando resulten anulados en caso de fraude. Incluso en ausencia de fraude, las consecuencias perjudiciales para la sociedad de los contratos no aprobados
podrán ser consideradas responsabilidad del interesado y, eventualmente, de los demás miembros del directorio.
Artículo L225-90 Sin perjuicio de la responsabilidad en que incurra el interesado, los contratos citados en el artículo L.225-86 y
concluidos sin la previa autorización del consejo de supervisión podrán anularse si hubieran tenido consecuencias perjudiciales para la sociedad.
La acción de nulidad prescribirá a los tres años contando desde la fecha del contrato. Sin embargo, si el contrato hubiera sido ocultado, el plazo de prescripción empezaría a contar desde el día en que éste haya sido conocido.
La nulidad podrá ser convalidada por un voto de la junta general en base al informe especial de los auditores de cuentas en que se expongan las circunstancias por las cuales no se ha seguido el procedimiento de autorización. Será aplicable el párrafo cuarto del artículo L.225-88.
Artículo L225-91 Bajo pena de nulidad del contrato, quedará prohibido a los miembros del directorio y a los miembros del consejo de
supervisión que no sean personas jurídicas, suscribir, en la forma que sea, préstamos a la sociedad, hacerse cubrir por ella un descubierto, en cuenta corriente o de cualquier otra forma, así como hacerle garantizar o avalar sus obligaciones frente a terceros.
La prohibición se aplicará a los representantes permanentes de las personas jurídicas miembros del consejo de supervisión. Se aplicará igualmente al cónyuge, a los ascendientes y descendientes de las personas citadas en el presente artículo, así como a toda persona interpuesta.
Sin embargo, si la sociedad explotase un establecimiento bancario o financiero, la prohibición no se aplicará a las operaciones corrientes de este tipo de comercio concertadas en las condiciones normales.
La prohibición no se aplicará a los préstamos que sean concedidos por la sociedad en aplicación de las disposiciones del artículo L.313-1 del Código de la Construcción y de la Vivienda a los miembros del consejo de supervisión elegidos por los trabajadores.
Artículo L225-92 Los miembros del directorio y del consejo de supervisión, así como toda persona llamada a asistir a las reuniones
de estos órganos, estarán obligadas a guardar discreción con relación a las informaciones que tengan un carácter confidencial y consideradas como tales por el presidente.
Artículo L225-93 En caso de apertura de un procedimiento de suspensión de pagos o de liquidación judicial en aplicación del título II
del libro VI, las personas mencionadas por estas disposiciones podrán ser consideradas responsables del pasivo social y serán sometidas a inhabilitaciones y privaciones de derechos en las condiciones previstas por dichas disposiciones.
Artículo L.225-79-1 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 8 I Diario Oficial de 27 de julio de 2005)
En las sociedades cuyos títulos estén admitidos a negociación en un mercado regulado, en caso de nombramiento en las funciones de miembro del directorio de una persona vinculada por contrato laboral a la sociedad o a cualquier sociedad controlada o que la controle en el sentido de los puntos II y III del artículo L.225-16, estarán sujetas a lo dispuesto en los artículos L.225-86 y L.225-40 a L.225-90 las cláusulas de dicho contrato relativas a la remuneración, las indemnizaciones o las ventajas que fueran adeudadas en razón del cese o cambio en las funciones, o posteriormente a las mismas.
NOTA: Ley n° 2005-842 de 26 de julio de 2005 art. 8 II: lo dispuesto en el artículo 8 I será de aplicación a los convenios suscritos a partir de 1 de mayo de 2005.
Artículo L.225-90-1 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 8 I Diario Oficial de 27 de julio de 2005)
En las sociedades cuyos títulos estén admitidos a negociación en un mercado regulado, estarán sujetos a lo dispuesto en los artículos L.225-86 y L.225-40 a L.225-90 los compromisos que hubieran sido adoptados en beneficio de un miembro del directorio por la propia sociedad o por cualquier sociedad controlada o que la controle en el sentido de los puntos II y III del artículo L.223-16, y fueran relativos a la remuneración, las indemnizaciones o las ventajas que le fueran adeudadas en razón del cese o cambio en las funciones, o posteriormente a las mismas.
NOTA: Ley n° 2005-842 de 26 de julio de 2005 art. 8 II: lo dispuesto en el artículo 8 I será de aplicación a los convenios suscritos a partir de 1 de mayo de 2005.
Subsección 3 Disposiciones comunes a los mandatarios sociales de las sociedades
anónimas Artículos L225-94 a L225-95-1
Artículo L225-94 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 110 6° Diario Oficial de 16 de mayo de 2001) (Ley nº 2002-1303 de 29 de octubre de 2002 Artículo 1 V Diario Oficial de 30 de octubre de 2002)
El número máximo de puestos de administrador o de miembro del consejo de supervisión que podrán ser ocupados
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CÓDIGO DE COMERCIO simultáneamente por una misma persona física, en virtud de los artículos L.225-21 y L. 225-77, será aplicable a la acumulación de puestos de administrador y de miembro del consejo de supervisión.
Para la aplicación de los artículos L. 225-54-1 y L. 225-67, se autorizará que una persona física ejerza simultáneamente el mandato de director general en una sociedad y en otra sociedad que la misma controle en el sentido del artículo L. 233-16.
Artículo L225-94-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 110 7° Diario Oficial de 16 de mayo de 2001) (Ley nº 2002-1303 de 29 de octubre de 2002 Artículo 1 VI Diario Oficial de 30 de octubre de 2002) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 131 1° Diario Oficial de 2 de agosto de 2003)
Sin perjuicio de las disposiciones de los artículos L.225-21, L. 225-54-1, L.225-67, L.225-77 y L. 225-94, una persona física no podrá ejercer simultáneamente más de cinco mandatos de director general, de miembro del directorio, de director general único, de administrador o de miembro del consejo de supervisión de sociedades anónimas que tengan su sede en territorio francés. Para la aplicación de estas disposiciones, el ejercicio de la dirección general por parte de un administrador contará como un solo mandato.
Por excepción a lo establecido anteriormente, no se serán tenidos en cuenta los mandatos de administrador o de miembro del consejo de supervisión en las sociedades que estén controladas, en el sentido del artículo L. 223-16, por la sociedad en la que se ejerza un mandato en concepto del primer párrafo. (1)
Cualquier persona física que infrinja las disposiciones del presente artículo deberá dimitir de uno de sus mandatos dentro de los tres meses siguientes a su nombramiento o del mandato en cuestión en los tres meses posteriores al hecho que haya conllevado la desaparición de una de las condiciones determinadas en el párrafo anterior. Tras la expiración de este plazo, será considerada destituida, según el caso, o bien de su nuevo mandato, o bien del mandato que ya no responda a las condiciones fijadas en el párrafo anterior, y deberá restituir las remuneraciones percibidas, sin que sea, por ello, cuestionada la validez de los acuerdos en los que haya tomado parte.
Nota (1): Estas disposiciones entrarán en vigor el 16 de noviembre de 2002.
Artículo L225-95 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 104 3° Diario Oficial de 16 de mayo de 2001)
En caso de fusión de sociedades anónimas, el número de miembros del consejo de administración o del consejo de supervisión, según el caso, podrá sobrepasar el número de dieciocho previsto en los artículos L.225-17 y L.225-69, durante un plazo de tres años desde la fecha de la fusión fijada en el artículo L.236-4, sin que pueda llegar a ser superior a veinticuatro.
Artículo L.225-95-1 (Ley nº 2001-420 de 15 de mayo de 2001 art. 110 8º Diario Oficial de 16 de mayo de 2001) (Ley nº 2002-1303 de 29 de octubre de 2002 art. 2 Diario Oficial de 30 de octubre de 2002) (Ley nº 2003-706 de 1 de agosto de 2003 art. 63 V Diario Oficial de 2 de agosto de 2003)
Por excepción a lo dispuesto en los artículos L.225-21, L.225-77 y L.225-94-1 no serán tomados en cuenta los mandatos de representante permanente de una sociedad de capital riesgo mencionada en el artículo primero de la Ley nº 85-695 de 11 de julio de 1985 que incluye diferentes disposiciones de orden económico y financiero, de una sociedad financiera de innovación mencionada en el punto III (B) del artículo 4 de la Ley nº 72-650 de 11 de julio de 1972 que incluye diversas disposiciones de orden económico y financiero o de una sociedad de gestión habilitada para gestionar los fondos de inversión colectiva regidos por el párrafo 1 de la subsección 6 de la sección 1 del capítulo IV del título I del libro II y los artículos L.214-36 y L.214-41 del Código Monetario y Financiero.
Desde el momento en que las condiciones previstas en el presente artículo no se cumplan, cualquier persona física deberá dimitir de los mandatos que no respondan a las disposiciones de los artículos L.225-21, L.225-77 y L.225-94-1 en un plazo de tres meses. Tras la expiración de este plazo, no será considerada como representante de la persona jurídica, y deberá restituir las remuneraciones percibidas, sin que sea por ello cuestionada la validez de los acuerdos en los que haya tomado parte.
Por excepción a lo dispuesto en los artículos L.225-21, L.225-77 y L.225-94-1 no serán tomados en cuenta para la aplicación de las normas relativas a la acumulación de mandatos sociales, los mandatos de presidente, de director general, de director general único, de miembro del directorio o de administrador de una sociedad de economía mixta local cuando estos estén ejercidos por un representante de una entidad territorial o de una agrupación de entidades territoriales.
Sección III De las juntas de accionistas Artículos L225-96 a
L228-37
Artículo L.225-96 (Ley nº 2005-842 de 26 de julio de 2005 art. 6 I Diario Oficial de 27 de julio de 2005)
La junta general extraordinaria será la única habilitada para modificar los estatutos en cualquiera de sus disposiciones. Cualquier cláusula en contrario se tendrá por no puesta. No obstante, no podrá aumentar los compromisos de los accionistas, excepto en las operaciones que sean el resultado de una reagrupación de acciones efectuada de forma regular.
La junta sólo deliberará de forma válida cuando los accionistas presentes o representados posean al menos, en la primera convocatoria, un cuarta parte de las acciones y, en la segunda convocatoria, una quinta parte de las acciones
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CÓDIGO DE COMERCIO con derecho a voto. En su defecto, la segunda junta podrá ser aplazada a una fecha posterior, como máximo dos meses después de la fecha en que hubiera sido convocada. En las sociedades que no realicen llamamiento público al ahorro, los estatutos podrán prever quórums más elevados.
Las decisiones de la junta se tomarán por mayoría de dos tercios de los votos de los que dispongan los accionistas que estén presentes o representados.
Artículo L225-97 La junta general extraordinaria podrá cambiar la nacionalidad de la sociedad, a condición de que el país de acogida
haya firmado con Francia un contrato especial que permita la adquisición de su nacionalidad y el traslado de la sede social a su territorio, manteniendo la sociedad su personalidad jurídica.
Artículo L.225-98 (Ley nº 2005-842 de 26 de julio de 2005 art. 6 II Diario Oficial de 27 de julio de 2005)
La junta general ordinaria estará facultada para tomar todo tipo de acuerdos, con excepción de los citados en los artículos L.225-96 y L.225-97.
Sólo deliberará de forma válida en la primera convocatoria cuando los accionistas presentes o representados posean al menos la quinta parte de las acciones con derecho a voto. En las sociedades que no realicen llamamiento público al ahorro, los estatutos podrán prever un quórum más elevado. En la segunda convocatoria, no se requerirá ningún quórum.
Las decisiones de la junta se tomarán por mayoría de votos de los accionistas presentes o representados.
Artículo L.225-99 (Ley nº 2005-842 de 26 de julio de 2005 art. 6 III Diario Oficial de 27 de julio de 2005)
Las juntas especiales reunirán a una determinada categoría de titulares acciones. La decisión de una junta general de modificar los derechos relativos a una categoría de acciones no será definitiva
hasta la aprobación por la junta especial de los accionistas de dicha categoría. Las juntas especiales sólo deliberarán de forma válida cuando los accionistas presentes o representados posean al
menos, en la primera convocatoria, la tercera parte de las acciones con derecho a voto y, en la segunda convocatoria, la quinta parte de las acciones con derecho a voto y cuyos derechos se prevea modificar. En su defecto, la segunda junta podrá ser aplazada a una fecha posterior, como máximo dos meses después de la fecha en que hubiera sido convocada. En las sociedades que no realicen llamamiento público al ahorro, los estatutos podrán prever quórums más elevados.
Las decisiones de las juntas especiales se tomarán con arreglo a las condiciones previstas el párrafo tercero del artículo L.225-96.
Artículo L225-100 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 118 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 Diario Oficial de 26 de junio de 2004) (Disposición nº 2004-1382 de 20 de diciembre de 2004 Artículo 3 Diario Oficial de 22 de diciembre de 2004)
La junta general ordinaria se reunirá al menos una vez por año, en los seis meses siguientes al cierre del ejercicio, sin perjuicio de la prórroga a este plazo que pueda conceder una resolución judicial.
El consejo de administración o el directorio presentará a la junta su informe así como las cuentas anuales y, eventualmente, las cuentas consolidadas con el informe de gestión correspondiente.
Dicho informe incluirá un análisis objetivo y exhaustivo de la evolución de los negocios, de los resultados y de la situación financiera de la sociedad, especialmente de su nivel de endeudamiento en relación con el volumen y la complejidad de sus negocios. Siempre que sea necesario para la comprensión de la evolución de los negocios, de los resultados o de la situación de la sociedad e independientemente de los indicadores clave de rendimiento financiero que deban figurar en el informe en virtud de otras disposiciones del presente Código, el análisis incluirá en su caso los indicadores clave de rendimiento no financiero relacionados con la actividad específica de la sociedad, y en especial informaciones relativas a los temas de medio ambiente y de personal.
El informe incluirá igualmente una descripción de los principales riesgos e incertidumbres a los que se enfrenta la sociedad.
El análisis mencionado en el párrafo tercero podrá remitir, en caso de necesidad, a las cantidades indicadas en las cuentas anuales así como a las explicaciones suplementarias correspondientes.
Dicho informe indicará además los instrumentos financieros utilizados por la empresa, cuando esta información sea necesaria para evaluar su activo y su pasivo, su situación financiera y sus pérdidas y ganancias. Esta información se referirá a los objetivos y políticas de gestión del riesgo financiero de la sociedad, incluida la política aplicada para cubrir cada tipo significativo de transacción prevista para la que se utilice la contabilidad de cobertura. Se referirá igualmente a la exposición de la sociedad al riesgo de precio, riesgo de crédito, riesgo de liquidez y riesgo de flujo de caja.
Se adjuntará a dicho informe un cuadro completo que detalle las delegaciones en periodo de validez concedidas por la junta general de socios al consejo de administración o al directorio en lo referente a las ampliaciones de capital en virtud de los artículos L. 225-129-1 y L. 225-129-2. El cuadro mencionará la utilización de dichas delegaciones en el transcurso del ejercicio.
Los Auditores de cuentas referirán en su informe, el cumplimiento de la misión que les corresponde en virtud del artículo L.225-235.
La junta deliberará y decidirá sobre todas las cuestiones relativas a las cuentas anuales, y, llegado el caso, a las cuentas consolidadas del ejercicio transcurrido.
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CÓDIGO DE COMERCIO Ejercerá los poderes que le hayan sido otorgados en particular por el artículo L.225-18, el cuarto párrafo del
artículo L.225-24, el tercer párrafo del artículo L.225-40, el tercer párrafo del artículo L.225-42 y por el artículo L.225-45, o, eventualmente por el artículo L.225-75, el cuarto párrafo del artículo L.225-78, el artículo 225-83, el tercer párrafo del artículo L.225-88 y el tercer párrafo del artículo L.225-90.
Nota: Resolución 2004-1382 2004-12-20 art. 12: Lo dispuesto en la presente resolución será de aplicación a partir del primer ejercicio abierto después de 1 de enero de 2005.
Artículo L225-100-1 (Introducido por la Disposición nº 2004-1382 de 20 de diciembre de 2004 Artículo 4 Diario Oficial de 22 de diciembre de 2004)
Los apartados tercero a sexto del artículo L. 225-100 no se aplicarán a las sociedades que al cierre del ejercicio no sobrepasen las cifras fijadas por decreto en los dos criterios siguientes: el total de su balance, el importe neto de su volumen de negocios o el número medio de personas empleadas permanentemente a lo largo del ejercicio. El presente párrafo no se aplicará a las sociedades cuyos instrumentos financieros mencionados en el párrafo 1 o 2 del punto I del artículo L. 221-1 del Código Monetario y Financiero estén admitidos a negociación en un mercado regulado.
No estarán obligadas a proporcionar las informaciones de tipo no financiero mencionadas en la última frase del artículo L.225-1000 las sociedades que al cierre del ejercicio no sobrepasen las cifras fijadas por decreto en los dos criterios siguientes: el total de su balance, el importe neto de su volumen de negocios o el número medio de personas empleadas permanentemente a lo largo del ejercicio. El presente párrafo no se aplicará a las sociedades cuyos instrumentos financieros mencionados en el párrafo 1 o 2 del punto I del artículo L. 221-1 del Código Monetario y Financiero estén admitidos a negociación en un mercado regulado.
Nota: Resolución 2004-1382 2004-12-20 art. 12: Lo dispuesto en la presente resolución será de aplicación a partir del primer ejercicio abierto después de 1 de enero de 2005.
Artículo L225-100-2 (Introducido por la Disposición nº 2004-1382 de 20 de diciembre de 2004 Artículo 4 Diario Oficial de 22 de diciembre de 2004)
Cuando la sociedad presente las cuentas consolidadas en aplicación del artículo L. 233-16, el informe consolidado de gestión incluirá un análisis objetivo y exhaustivo de la evolución de los negocios, de los resultados y de la situación financiera del conjunto de las empresas incluidas en la consolidación, y especialmente de su nivel de endeudamiento en relación con el volumen y la complejidad de sus negocios. Siempre que sea necesario para la comprensión de la evolución de los negocios, de los resultados o de la situación de las empresas, el análisis incluirá los indicadores clave de rendimiento financiero y, en su caso, no financiero, relacionados con la actividad específica de las empresas, y en especial informaciones relativas a los temas de medio ambiente y de personal.
El informe incluirá igualmente una descripción de los principales riesgos e incertidumbres a los que se enfrenta el conjunto de las empresas incluidas en la consolidación.
El análisis mencionado en el párrafo primero podrá remitir, en caso de necesidad, a las cantidades indicadas en las cuentas consolidadas así como a las explicaciones suplementarias correspondientes.
Dicho informe indicará además los instrumentos financieros utilizados por la empresa, cuando esta información sea necesaria para evaluar su activo y su pasivo, su situación financiera y sus pérdidas y ganancias. Esta información se referirá a los objetivos y políticas de gestión del riesgo financiero de la sociedad, incluida la política aplicada para cubrir cada tipo significativo de transacción prevista para la que se utilice la contabilidad de cobertura. Se referirá igualmente a la exposición de la sociedad al riesgo de precio, riesgo de crédito, riesgo de liquidez y riesgo de flujo de caja.
Nota: Resolución 2004-1382 2004-12-20 art. 12: Lo dispuesto en la presente resolución será de aplicación a partir del primer ejercicio abierto después de 1 de enero de 2005.
Artículo L225-101 Cuando la sociedad, en los dos años siguientes a su inscripción, adquiera un bien que pertenezca a un accionista y
cuyo valor sea al menos igual a una décima parte del capital social, se designará a un auditor encargado de evaluar, bajo su responsabilidad, el valor de este bien, por decisión judicial a petición del presidente del consejo de administración o del directorio, según el caso. Este auditor estará sometido a las incompatibilidades previstas en el artículo L.225-224.
El informe del auditor se pondrá a disposición de los accionistas. La junta general ordinaria decidirá sobre la valoración del bien, bajo pena de nulidad de la adquisición. El vendedor no tendrá ni voz ni voto, ni por sí mismo, ni como mandatario.
Las disposiciones del presente artículo no serán aplicables cuando la adquisición sea realizada en bolsa, bajo el control de una autoridad judicial o en el marco de las operaciones corrientes de la sociedad y concertada en condiciones normales.
Artículo L225-102 (Ley nº 2001-152 de 19 de febrero de 2001 Artículo 26 Diario Oficial de 20 de febrero de 2001)
El informe presentado por el consejo de administración o el directorio, según el caso, en la junta general, dará cuenta anualmente del estado de la participación de los empleados en el capital social al último día del ejercicio y determinará la proporción del capital que representen la acciones detentadas por el personal de la sociedad y por el personal de las sociedades que estén vinculadas a ella en el sentido del artículo L.225-180, en el marco del plan de ahorro empresarial previsto por los artículos L. 443-1 a L.443-9 del Código de Trabajo, y por los empleados y antiguos empleados, en el marco de los fondos de inversión colectiva de la empresa regidos por el capítulo III de la Ley nº
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CÓDIGO DE COMERCIO 88-1201 de 23 de diciembre de 1988 relativa a los organismos de inversión colectiva en valores mobiliarios y que incluye la creación de fondos de inversión colectiva en créditos. Serán igualmente tomadas en consideración las acciones detentadas directamente por los trabajadores durante los períodos de intransferibilidad previstos en los artículos L.225-194 y L.225-197, en el artículo 11 de la Ley nº 86-912 de 6 de agosto de 1986 relativa a las modalidades de privatizaciones y en el artículo L.442-7 del Código de Trabajo.
Los títulos adquiridos por los trabajadores, en el marco de una operación de rescate de la empresa por sus empleados prevista por la Ley nº 84-578 de 9 de julio de 1984 sobre el desarrollo de la iniciativa económica, así como por asalariados de una sociedad cooperativa de trabajadores de producción en el sentido de la Ley nº 78-763 de 19 de julio de 1978 sobre el Estatuto de Sociedades Cooperativas Obreras de Producción, no serán tenidos en cuenta para la evaluación de la proporción del capital prevista en el párrafo anterior.
Cuando el informe anual no incluya las anotaciones previstas en el primer párrafo, cualquier persona interesada podrá solicitar al presidente del Tribunal que resuelva en procedimiento sumario para que haga un requerimiento, bajo pena de multa, al consejo de administración o al directorio, según el caso, con el fin de que facilite estas informaciones.
Cuando se admita la demanda, la sanción y los gastos de procedimiento correrán a cargo de las administradores o de los miembros del directorio, según el caso.
Artículo L.225-102-1 (Ley nº 2001-420 de 15 de mayo de 2001 art. 116 I Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 art. 138 Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 art. 51 II Diario Oficial de 26 de junio de 2004) (Ley nº 2005-842 de 26 de julio de 2005 art. 9 I Diario Oficial de 27 de julio de 2005)
El informe mencionado en el artículo L.225-102 dará cuenta de la remuneración total y de las ventajas de todo tipo pagadas durante el ejercicio a cada mandatario social, incluso en forma de adjudicación de títulos de capital, de títulos de créditos que dan acceso al capital o a la adjudicación de títulos de créditos de la sociedad o las sociedades mencionadas en los artículos L.228-13 y L.228-93.
Indicará igualmente el importe de las remuneraciones y de las ventajas de todo tipo que cada uno de estos mandatarios hubiera recibido durante el ejercicio por parte de las sociedades controladas en el sentido del artículo L.233-16 o de la sociedad que controla, en el sentido del mismo artículo, la sociedad en la que el mandato fuera ejercido.
Dicho informe presentará separadamente los elementos fijos, variables y excepcionales que componen estas remuneraciones y ventajas, así como los criterios con arreglo a los cuales las mismas han sido calculadas o las circunstancias en las que han sido establecidas. Indicará asimismo los compromisos de cualquier tipo que hubieran sido adoptados por la sociedad en beneficio de sus mandatarios sociales, relativos a la remuneración, las indemnizaciones o las ventajas que les fueran adeudadas en razón de la participación, cese, o cambio en las funciones, o posteriormente a las mismas. La información proporcionada deberá precisar las modalidades de determinación de dichos compromisos. Excepto en los casos de buena fe, los pagos realizados y los compromisos adoptados infringiendo lo dispuesto en el presente párrafo podrán ser anulados.
El informa incluirá también la lista del conjunto de mandatos y funciones ejercidas en cualquier otra sociedad por cada uno de estos mandatarios durante el ejercicio.
Incluirá asimismo documentos de información, cuya lista será determinada por decreto adoptado en Conseil d'Etat, sobre la manera en que la sociedad tiene en cuenta las consecuencias sociales y medioambientales de su actividad. El presente párrafo no se aplicará a las sociedades cuyos títulos no estén admitidos a negociación en un mercado regulado.
Lo dispuesto en los dos últimos párrafos del artículo L.225-102 será de aplicación a la información citada en el presente artículo.
Lo dispuesto en los párrafos primero a tercero no serán de aplicación a las sociedades cuyos títulos no estén admitidos a negociación en un mercado regulado y a las sociedades que no estén controladas, en el sentido del artículo L.233-16 por una sociedad cuyos títulos estén admitidos a negociación en un mercado regulado. Dichas disposiciones tampoco serán de aplicación a los mandatarios sociales que no posean ningún mandato en una sociedad cuyos títulos estén admitidos a negociación en un mercado regulado.
Artículo L225-102-2 (Introducido por la Ley nº 2003-699 de 30 de julio de 2003 Artículo 23 Diario Oficial de 31 de julio de 2003)
Para las sociedades que exploten como mínimo una instalación que figure en la lista prevista en el punto IV del artículo L. 515-8 del Código de Medio Ambiente, el informe mencionado en el artículo L. 225-102 del presente Código:
- informará sobre la política de prevención de la sociedad contra el peligro de accidente tecnológico; - certificará la capacidad de la sociedad para cubrir su responsabilidad civil en relación con los bienes y las
personas en el marco de la explotación de dichas instalaciones; - precisará los medios previstos por la sociedad para garantizar la gestión de la indemnización de las víctimas si se
produjera un accidente tecnológico en el que se estableciera su responsabilidad.
Artículo L225-103 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 114 2° Diario Oficial de 16 de mayo de 2001)
I.- La junta general será convocada por el consejo de administración o el directorio, según el caso. II. - En su defecto, la junta general también podrá ser convocada: 1º Por los auditores de cuentas;
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CÓDIGO DE COMERCIO 2º Por un mandatario, designado judicialmente, a petición, ya sea de cualquier interesado en caso de urgencia, o
bien por uno o varios accionistas que reúnan al menos un 5% del capital social, o bien de una asociación de accionistas que respondan a las condiciones determinadas por el artículo L. 225-120;
3º Por los liquidadores; 4ºPor los accionistas mayoritarios en capital o en derechos de voto tras una oferta pública de compra o de
intercambio o tras una cesión de un bloque de control. III. - En las sociedades sujetas a los artículos L.225-57 a L.225-93, la junta general podrá ser convocada por el
consejo de supervisión. IV. - Las disposiciones que preceden serán aplicables a las juntas especiales. Los accionistas que actúen para que
sea nombrado judicialmente un mandatario deberán reunir al menos una décima parte de las acciones de la categoría interesada.
V.- Salvo cláusula en contrario de los estatutos, las juntas de accionistas se reunirán en la sede social o en cualquier otro lugar del mismo departamento.
Artículo L225-104 La convocatoria de las juntas de accionistas será realizada en las formas y plazos fijados por decreto adoptado en
Conseil d'Etat. Podrá ser anulada toda junta irregularmente convocada. Sin embargo, la acción de nulidad no será admisible
cuando todos los accionistas hubiesen estado presentes o representados.
Artículo L225-105 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 119 Diario Oficial de 2 de agosto de 2003)
El orden del día de las juntas será fijado por el autor de la convocatoria. Sin embargo, uno o varios accionistas que representen al menos un 5% del capital o una agrupación de accionistas
que responda a las condiciones determinadas en el artículo L.225-120 tendrán la facultad de requerir la inclusión de proyectos de resolución en el orden del día. Estos proyectos de resolución serán incluidos en el orden del día de la junta y se pondrán a conocimiento de los accionistas en las condiciones determinadas por decreto adoptado en Conseil d'Etat. Éste podrá reducir el porcentaje exigido por el presente párrafo cuando el capital social exceda una suma determinada por ese mismo decreto.
La junta no podrá deliberar sobre una cuestión que no esté incluida en el orden del día. Sin embargo, podrá, en cualquier circunstancia, revocar a uno a o varios administradores o miembros del consejo de supervisión y proceder a su sustitución.
El orden del día de la junta no podrá ser modificado en segunda convocatoria. Cuando la junta sea citada para deliberar sobre modificaciones de la organización económica o jurídica de la
empresa a propósito de las cuales el comité de empresa haya sido consultado en aplicación del artículo L. 432-1 del Código de Trabajo, se le comunicará la opinión de dicho comité.
Artículo L225-106 (Ley nº 2001-152 de 19 de febrero de 2001 Artículo 27 Diario Oficial de 20 de febrero de 2001)
Un accionista podrá ser representado por otro accionista o su cónyuge. Todo accionista podrá recibir los poderes dados por otros accionistas para ser representados en una junta, sin
otras limitaciones que las que resulten de las disposiciones legales o estatutarias que determinen el número máximo de votos de los que podrá disponer una misma persona, tanto en su propio nombre como actuando de mandatario.
Antes de cada reunión de la junta general de accionistas, el presidente del consejo de administración o el directorio, según el caso, podrá organizar la consulta de los accionistas mencionados en el artículo L.225-102 con el fin de permitirles que designen uno o varios mandatarios para que los representen en la junta general de conformidad con las disposiciones del presente artículo.
Esta consulta será obligatoria cuando, habiendo sido modificados los estatutos en aplicación del artículo L.225-23 o del artículo L.225-71, la junta general ordinaria deba nombrar en el consejo de administración o en el consejo de supervisión, según el caso, uno o varios trabajadores accionistas o miembros de los consejos de supervisión de los fondos de inversión colectiva de la empresa que posean acciones de la sociedad.
Esta consulta será igualmente obligatoria cuando la junta general extraordinaria deba pronunciarse sobre una modificación de los estatutos en aplicación del artículo L.225-23 o del artículo L.225-71.
Las cláusulas contrarias a las disposiciones de los párrafos anteriores se tendrán por no puestas. Para todo poder de un accionista sin indicación de mandatario, el presidente de la junta general emitirá un voto
favorable en la adopción de los proyectos de resolución presentados o autorizados por el consejo de administración o el directorio, según el caso, y un voto desfavorable en la adopción de todos los demás proyectos de resolución. Para emitir cualquier otro voto, el accionista deberá haber elegido un mandatario que acepte votar en el sentido indicado por el mandante.
Artículo L225-107 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 115 1° Diario Oficial de 16 de mayo de 2001)
I.- Todo accionista podrá votar por correspondencia, por medio de un formulario cuyo contenido será definido por decreto adoptado en Conseil d'Etat . Las disposiciones contrarias de los estatutos se tendrán por no puestas.
Para el cálculo del quórum, sólo se tendrán en cuenta los formularios que hayan sido recibidos por la sociedad con antelación a la celebración de la junta, en las condiciones de plazo definidas por decreto adoptado en Conseil d'Etat. Los formularios que no indiquen un sentido determinado para el voto o que expresen una abstención serán
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CÓDIGO DE COMERCIO considerados como votos negativos.
II. Si los estatutos lo previeran, serán considerados presentes para el cálculo del quórum y de la mayoría los accionistas que participen en la junta por medio de videoconferencia o por medios de telecomunicación que permitan su identificación y cuya naturaleza y condiciones de aplicación sean determinados por decreto adoptado en Conseil d'Etat.
Artículo L225-107-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 119 1° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 III Diario Oficial de 26 de junio de 2004)
Los propietarios de los títulos mencionados en el séptimo párrafo del artículo L.228-1 podrán ser representados en las condiciones previstas en dicho artículo por un intermediario inscrito.
Artículo L225-108 El consejo de administración o el directorio, según los casos, deberá dirigir o poner a disposición de los accionistas
los documentos necesarios para permitir a éstos pronunciarse con conocimiento de causa y emitir un juicio razonado sobre la gestión y la marcha de los asuntos de la sociedad.
La naturaleza de estos documentos y las condiciones de su envío o de su disponibilidad para los accionistas se determinarán por decreto adoptado en Conseil d'Etat.
A partir de la comunicación prevista en el primer párrafo, todo accionista tendrá la facultad de plantear por escrito preguntas a las que, tanto el consejo de administración como el directorio, según los casos, estarán obligados a responder en el transcurso de la junta.
Artículo L225-109 El presidente, los directores generales, los miembros del directorio de una sociedad, las personas físicas o jurídicas
que ejerzan en esta sociedad las funciones de administrador o de miembro del consejo de supervisión así como los representantes permanentes de las personas jurídicas que ejerzan estas funciones estarán obligados, en las condiciones determinadas por el Conseil d'Etat , a inscribir en forma nominativa o a declarar las acciones que les pertenezcan a ellos mismos o a sus hijos menores no emancipados y que hayan sido emitidas por la sociedad por sí misma, por sus filiales, por la sociedad de la que ésta es filial o por las otras filiales de esta última sociedad, cuando estas acciones estén admitidas a negociación en un mercado regulado.
La misma obligación afectará a los cónyuges no separados legalmente de las personas mencionadas en el párrafo anterior.
Artículo L225-110 El derecho de voto vinculado a la acción pertenecerá al usufructuario en las juntas generales ordinarias y al nudo
propietario en las juntas generales extraordinarias. Los copropietarios de acciones indivisas serán representados en las juntas generales por uno de ellos o por un
mandatario único. En caso de desacuerdo, el mandatario será designado judicialmente a petición del copropietario más diligente.
El derecho de voto será ejercido por el propietario de los títulos pignorados. Para ello, el acreedor pignoraticio declarará, a petición de su deudor, las acciones que detentase en garantía, en las condiciones y plazos fijados por decreto adoptado en Conseil d'Etat.
Los estatutos podrán permitir la no aplicación de las disposiciones del primer párrafo.
Artículo L225-111 La sociedad no podrá votar válidamente con acciones suscritas por ella, compradas o tomadas en garantía. No se
tendrán en cuenta estas acciones para el cálculo del quórum.
Artículo L225-113 Cualquier accionista podrá participar en la juntas generales extraordinarias y cualquier accionista que posea
acciones de las mencionadas en el artículo L. 225-99 podrá participar en las juntas especiales. Cualquier cláusula en contrario se tendrá por no puesta.
Artículo L225-114 En cada junta, se confeccionará una lista de asistentes cuyo contenido será determinado por decreto adoptado en
Conseil d'Etat.
Artículo L225-115 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 111 6° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 123 I 3° Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 VI Diario Oficial de 26 de junio de 2004)
Todo accionista tendrá derecho, en las condiciones y plazos determinados por decreto adoptado en Conseil d'Etat, a obtener información sobre:
1º El inventario, las cuentas anuales y la lista de los administradores o de los miembros del directorio y del consejo de supervisión y, cuando proceda, las cuentas consolidadas;
2º Los informes del consejo de administración, o del directorio y del consejo de supervisión, según el caso, y de los auditores de cuentas que se sometan a la junta;
3º Si procediera, el texto y la exposición de motivos de las resoluciones propuestas, así como informaciones concernientes a los candidatos al consejo de administración o al consejo de supervisión, según el caso;
4º La suma global, certificada como exacta por los auditores de cuentas, de las remuneraciones abonadas a las
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CÓDIGO DE COMERCIO personas mejor pagadas, siendo el número de estas personas de diez o de cinco según sea la plantilla superior o inferior a doscientos empleados;
5º La suma global, certificada como exacta por los auditores de cuentas de los pagos realizados según lo dispuesto en los apartados 1 y 4 del artículo 238 bis del Código General de Impuestos así como la lista de las acciones nominativas de padrinazgo, de mecenazgo;
6º La lista y el objeto de los contratos correspondientes a operaciones corrientes realizadas en condiciones normales, establecidos de conformidad con los artículos L. 225-39 y L. 225-87.
Artículo L225-116 Antes de la reunión de cualquier junta general, todo accionista tendrá derecho a obtener una relación de
accionistas, en las condiciones y los plazos que se fije por decreto adoptado en Conseil d'Etat.
Artículo L225-117 Todo accionista tendrá derecho, en todo momento, a obtener información de los documentos citados en el artículo
L.225-115 y concernientes a los tres últimos ejercicios, así como de las actas y relaciones de asistentes de las juntas celebradas en el transcurso de los tres últimos ejercicios.
Artículo L225-118 El derecho a la información sobre los documentos previsto en los artículos L.225-115, L.225-116 y L.225-117, lo
poseerán también cada uno de los copropietarios de acciones indivisas, el nudo propietario y el usufructuario de acciones.
Artículo L225-120 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 4 y 19 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
I.- En las sociedades cuyas acciones estén admitidas a negociación en un mercado regulado, los accionistas que presenten una inscripción nominativa desde al menos dos años antes y que posean en conjunto al menos un 5% de los derechos de voto podrán reagruparse en asociaciones destinadas a representar sus intereses en el seno de la sociedad. Para ejercer los derechos que se les reconocen en los artículos L.225-103, L.225-105, L.225-230, L225-231, L225-232 , L.25-233 y L.225-252, estas asociaciones deberán haber presentado su estatuto a la sociedad y a la Comisión de Operaciones Bursátiles.
II. - Sin embargo, cuando el capital de la sociedad sea superior a 750.000 euros, la parte de los derechos de voto que deberá ser representado, en aplicación del párrafo anterior, será reducida, según la importancia de los derechos de votos correspondientes al capital, del modo siguiente:
1º 4% entre 750.000 euros y hasta 4.500.000 euros; 2º 3% entre 4.500.000 euros y 7.500.000 euros; 3º 3% entre 7.500.000 euros y 15.000.000 euros; 4º 1% por encima de 15.000.000 euros. Nota: Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 V 1º y 2º: 1º Las referencias a la Comisión de Operaciones Bursátiles, al Consejo de Mercados Financieros y al Consejo de
disciplina de la gestión financiera serán sustituidas por la referencia a la Autoridad de Mercados Financieros; 2° Las referencias a los reglamentos de la Comisión de Operaciones Bursátiles y al reglamento general del
Consejo de Mercados Financieros de disciplina de la gestión financiera serán sustituidas por la referencia al reglamento general de la Autoridad de Mercados Financieros.
Artículo L225-121 Los acuerdos tomados por las juntas infringiendo los artículos L.225-96, L.225-97, L. 225-98, el párrafo tercero y
cuarto del artículo L. 225-99, el párrafo segundo del artículo L.225-100 y de los artículos L.225-105 y L.225-114 serán nulos.
En caso de infracción de las disposiciones de los artículos L.225-115 y L.225-116 o del decreto que regula su aplicación, la junta podrá ser anulada.
Artículo L225-122 I. - No obstante las disposiciones de los artículos L. 225-10, L.225-123, L. 225-124 y L.225-125 y L.225-126, el
derecho de voto vinculado a las acciones de capital o bonos de disfrute será proporcional a la porción de capital que representen y cada acción dará derecho al menos a un voto. Cualquier cláusula en contrario se tendrá por no puesta.
II. - En las sociedades por acciones cuyo capital sea, por un motivo de interés general, en parte propiedad del Estado, de los departamentos, de los municipios o de entidades públicas, y en las que tengan por objeto explotaciones concedidas por las autoridades administrativas competentes fuera de Francia metropolitana, el derecho de voto será regulado por los estatutos vigentes al 1 de abril de 1967.
Artículo L225-123 Podrá atribuirse un derecho de voto doble al conferido a las demás acciones, considerando la proporción del
capital social que representen, por medio de los estatutos o una junta general extraordinaria ulterior, a todas las acciones totalmente desembolsadas para las que se presente una inscripción nominativa de al menos dos años de antigüedad a nombre del mismo accionista.
Además, en caso de ampliación de capital por incorporación de reservas, beneficios o primas de emisión, el derecho de voto doble podrá ser conferido, desde su emisión, a las acciones nominativas adjudicadas gratuitamente a
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CÓDIGO DE COMERCIO un accionista en razón a acciones antiguas que se beneficiaran de este derecho.
El derecho de voto previsto en los párrafos primero y segundo anteriores podrá ser reservado a los accionistas de nacionalidad francesa, a los naturales de un Estado miembro de la Comunidad europea, o de un Estado parte en el Acuerdo sobre el Espacio económico europeo.
Artículo L225-124 Toda acción convertida en título al portador o transferida en propiedad perderá el derecho de voto doble otorgado
en aplicación del artículo L.225-123. No obstante la transferencia a consecuencia de una sucesión, de una liquidación de una comunidad de bienes matrimoniales, o de donación "inter vivos" a favor de un cónyuge o de un pariente en grado de sucesión, no dará lugar a la pérdida del derecho adquirido y no interrumpirá los plazos previstos en dicho artículo.
La fusión o la escisión de la sociedad quedará sin efecto sobre el derecho de voto doble que podrá ser ejercido en el seno de la o de las sociedades beneficiarias, si los estatutos así lo previeran.
Artículo L225-125 Los estatutos podrán limitar el número de votos de los que disponga cada accionista en las juntas, a condición de
que esta limitación sea impuesta a todas las acciones sin distinción de categoría, con excepción de las acciones con dividendo preferente sin derecho de voto.
Artículo L228-36 (Ley nº 2001-624 de 17 de julio de 2001 Artículo 36 VI Diario Oficial de 18 de julio de 2001)
Las sociedades por acciones que pertenezcan al sector público y las sociedades cooperativas constituidas bajo la forma de sociedad anónima o de sociedad de responsabilidad limitada podrán emitir títulos participativos. Estos títulos no podrán ser reembolsables si no es en caso de liquidación de la sociedad o, por su iniciativa, tras la expiración de un plazo que no podrá ser inferior a siete años y en las condiciones previstas en el contrato de emisión.
Su remuneración se compondrá de una parte fija y una parte variable calculada por referencia a elementos relativos a la actividad o a los resultados de la sociedad y basada en el nominal del título. Un decreto adoptado en Conseil d'Etat determinará las condiciones en las que se limitará la base de la parte variable de la remuneración.
Los títulos participativos serán negociables. Para la aplicación del artículo 26 de la nº 78-741 de 13 de julio de 1978 relativa a la orientación del ahorro hacia la
financiación de empresas, los préstamos participativos sólo serán reembolsados después del resarcimiento completo de todos los demás acreedores privilegiados o no privilegiados con exclusión de los propietarios de títulos participativos.
Artículo L228-37 La emisión y el reembolso de los títulos participativos deberán ser autorizados en las condiciones previstas por el
párrafo quinto del artículo L.225-100 y los artículos L.228-40 a L.228-44. Los tenedores de títulos participativos de una misma emisión se asociarán de pleno derecho para la defensa de
sus intereses comunes en una entidad que gozará de personalidad civil. Se someterán a las disposiciones de los artículos L.228-47 a L.228-71, L.228-73 y L.228-76 a L.228-90.
Además, el sindicato se reunirá al menos una vez al año para examinar el informe de los dirigentes sociales sobre la situación y la actividad de la sociedad en el curso del ejercicio transcurrido y el informe de los auditores de cuentas sobre las cuentas del ejercicio y sobre los elementos que le sirvan para la determinación de la remuneración de los títulos participativos.
Los representantes del sindicato asistirán a las juntas de accionistas o poseedores de participaciones. Serán consultados sobre todas las cuestiones incluidas en el orden del día, con excepción de las relativas a la designación o la revocación de los miembros de los órganos sociales. Podrán intervenir en cualquier momento en el transcurso de la junta.
Los tenedores de títulos participativos podrán tener acceso a los documentos sociales en las mismas condiciones que los accionistas.
En las empresas públicas que no se reúnan en junta general, el consejo de administración ejercerá las competencias reservadas a la junta general ordinaria en cuanto a la emisión de los títulos participativos. El párrafo cuarto del presente artículo no será aplicable.
Sección IV De las modificaciones del capital social y del accionariado de los trabajadores Artículos L225-127 a
L225-217
Subsección 1 Del aumento de capital Artículos L225-127 a
L225-149-3
Artículo L225-127 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 2 Diario Oficial de 26 de junio de 2004)
La ampliación del capital social podrá realizarse, bien por la emisión de acciones ordinarias o de acciones preferentes, bien por incremento del valor nominal de los títulos de capital ya existentes.
Dicha ampliación también podrá realizarse por el ejercicio de los derechos vinculados a valores mobiliarios que dan
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CÓDIGO DE COMERCIO acceso al capital, en las condiciones previstas en los artículos L. 225-149 y L. 225-177.
Artículo L225-128 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 3 Diario Oficial de 26 de junio de 2004)
Los nuevos títulos de capital serán emitidos, bien por su valor nominal, bien por dicho valor aumentado por una prima de emisión.
Serán desembolsados, bien por aportaciones dinerarias, incluyendo la compensación con créditos líquidos y exigibles a la sociedad, bien por aportación en especie, bien por incorporación de reservas, beneficios o primas de emisión, bien como consecuencia de una fusión o de una escisión.
Podrán asimismo ser desembolsados como consecuencia del ejercicio de un derecho vinculado a valores mobiliarios que dan acceso al capital comprendiendo, en su caso, el pago de las cantidades correspondientes.
Artículo L225-129 (Ley nº 2001-152 de 19 de febrero de 2001 Artículo 29 1° Diario Oficial de 20 de febrero de 2001) (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 132 Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 4 Diario Oficial de 26 de junio de 2004)
La junta general extraordinaria será la única competente para decidir una ampliación de capital inmediata o diferida, tras examinar el informe del consejo de administración o del directorio. Podrá delegar esta competencia en el consejo de administración o en el directorio, en las condiciones establecidas en el artículo L. 225-129-2.
La ampliación de capital deberá realizarse en el plazo de cinco años a partir de esta decisión o de esta delegación, sin perjuicio de lo dispuesto en los artículos L. 225-129-2 y L. 225-138. Este plazo no se aplicará a las ampliaciones de capital realizadas tras el ejercicio de un derecho vinculado a un valor mobiliario que dé acceso al capital o tras las contrataciones de opciones contempladas en el artículo L. 225-177.
Artículo L225-129-1 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 5 Diario Oficial de 26 de junio de 2004)
Cuando la junta general extraordinaria decida la ampliación de capital, podrá delegar en el consejo de administración o en el directorio la facultad de fijar las modalidades de emisión de los títulos.
Artículo L225-129-2 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 5 Diario Oficial de 26 de junio de 2004) (Ley nº 2004-1484 de 30 de diciembre de 2004 Artículo 83 I b Ley de finanzas para 2005 Diario Oficial de 31 de diciembre de 2004)
Cuando la junta general extraordinaria delegue en el consejo de administración o en el directorio su competencia para decidir sobre la ampliación de capital, fijará el plazo, que no podrá exceder de veintiséis meses, durante el cual esta delegación podrá ser utilizada, así como el límite global de dicha ampliación.
Esta delegación dejará sin efecto cualquier delegación anterior que tenga el mismo objeto. Las emisiones mencionadas en los artículos L. 225-135 a L. 225-138-1 y L. 225-177 a L. 225-186, L. 225-197-1 a
L. 225-197-3, así como las emisiones de acciones preferentes mencionadas en los artículos L. 228-11 a L. 228-20 deberán ser objeto de resoluciones específicas.
Dentro de los límites de la delegación conferida por la junta general, el consejo de administración o el directorio dispondrá de las competencias necesarias para establecer las condiciones de emisión, comprobar la realización de las ampliaciones de capital que derivan de ellas y proceder a la modificación correlativa de los estatutos.
Artículo L225-129-3 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 5 Diario Oficial de 26 de junio de 2004)
Cualquier delegación de la junta general será suspendida durante el periodo de oferta pública de compra o de canje de los títulos de la sociedad, salvo que la misma se inscribiera en el curso normal de la actividad de la sociedad y su aplicación no fuera susceptible de hacer fracasar la oferta.
Artículo L225-129-4 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 5 Diario Oficial de 26 de junio de 2004)
En las sociedades anónimas cuyos títulos estén admitidos a negociación en un mercado regulado: a) El consejo de administración, dentro de los límites que fije previamente, podrá delegar en el director general o,
de común acuerdo con este último, en uno o varios directores generales delegados, las competencias necesarias para decidir la realización de la emisión, o para suspenderla;
b) El directorio podrá delegar en su presidente o, de común acuerdo con éste, en uno de sus miembros, las competencias para decidir la realización de la emisión, o para suspenderla.
Las personas designadas deberán rendir cuentas ante el consejo de administración o el directorio de la utilización que hayan hecho de estas competencias en las condiciones previstas por ellos.
Artículo L225-129-5 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 5 Diario Oficial de 26 de junio de 2004)
Cuando se haga uso de las delegaciones previstas en los artículos L. 225-129-1 y L. 225-129-2, el consejo de administración o el directorio hará un informe complementario en la junta general ordinaria siguiente, en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
NOTA: Resolución 2004-604 24 de junio de 2004 art. 64: Las disposiciones del artículo L. 225-129-5 del Código de
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CÓDIGO DE COMERCIO Comercio entrarán en vigor para los ejercicios que comiencen a partir de 1 de enero de 2004.
Artículo L.225-129-6 (Disposición nº 2004-604 de 24 de junio de 2004 art. 5 Diario Oficial de 26 de junio de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 art. 78 XXVII Diario Oficial de 10 de diciembre de 2004) (Ley nº 2005-842 de 26 de julio de 2005 art. 42 Diario Oficial de 27 de julio de 2005)
En toda decisión de ampliación de capital por aportación dineraria, salvo que esta fuera el resultado de une emisión anterior de valores mobiliarios que dan acceso al capital, la junta general extraordinaria deberá pronunciarse sobre un proyecto de resolución dirigido a realizar una ampliación de capital efectuada en las condiciones previstas en el artículo L.443-5 del Código de Trabajo. No obstante, la junta general extraordinaria se pronunciará sobre este proyecto de resolución cuando delegue su competencia para realizar la ampliación de capital de conformidad con el artículo L.225-129-2.
Cada tres años se convocará una junta general extraordinaria para que se pronuncie sobre un proyecto de resolución dirigido a realizar una ampliación de capital en las condiciones previstas en el artículo L.443-5 del Código de Trabajo si, tras el análisis del informe presentado a la junta general por el consejo de administración o el directorio en aplicación del artículo L.225-102, las acciones detentadas por el personal de la sociedad y de las sociedades vinculadas a ella en los términos del artículo L.225-180 representan menos del 3% del capital.
Artículo L225-130 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 6 Diario Oficial de 26 de junio de 2004)
Cuando la ampliación de capital, bien por emisión de títulos de capital nuevos, bien por incremento del importe nominal de los títulos de capital ya existentes, se realizara por incorporación de reservas, beneficios o primas de emisión, la junta general, por excepción a lo dispuesto en el artículo L.225-96, decidirá en las condiciones de quórum y de mayoría previstas en el artículo L. 225-98. En este caso, la junta general podrá decidir, en las mismas condiciones de quórum y de mayoría, que los derechos sobrantes del cociente exacto entre antiguos y nuevos títulos, no sean negociables ni cedibles y que por tanto los títulos de capital correspondientes puedan ser vendidos. Las cantidades que provengan de esta venta serán abonadas a los titulares de los derechos en de un plazo fijado por decreto adoptado en Conseil d'Etat.
La ampliación de capital por incremento del importe nominal de los títulos de capital, fuera de los casos previstos en el párrafo anterior, sólo podrá ser decidida con el consentimiento unánime de los accionistas.
Artículo L225-131 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IV Diario Oficial de 26 de junio de 2004)
El capital deberá estar íntegramente desembolsado antes de cualquier emisión de nuevas acciones para desembolsar por aportación dineraria.
Además, la ampliación de capital por llamamiento público al ahorro, realizada antes de los dos años posteriores a la constitución de una sociedad según los artículos L.225-12 a L.225-16, deberá ser precedida, en las condiciones establecidas en los artículos L.225-8 a L.225-10, de una comprobación del activo y del pasivo así como, eventualmente, de los beneficios especiales concedidos.
Artículo L225-132 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 7, Artículo 51 V Diario Oficial de 26 de junio de 2004)
Las acciones conllevarán un derecho de suscripción preferente en las ampliaciones de capital. Los accionistas tendrán, en proporción al importe de sus acciones, un derecho preferente en la suscripción de
acciones por aportación dineraria, emitidas para realizar una ampliación de capital. Durante el período de la suscripción, este derecho será negociable cuando sea independiente de las propias
acciones, negociables en sí mismas. En el caso contrario, será transmisible en las mismas condiciones que la propia acción.
Los accionistas podrán renunciar individualmente a su derecho preferente. La decisión relativa a la conversión de las acciones preferentes conllevará la renuncia de los accionistas al derecho
de suscripción preferente en las acciones derivadas de la conversión. La decisión de emisión de valores mobiliarios que dan acceso al capital conllevará igualmente la renuncia de los
accionistas a su derecho de suscripción preferente en los títulos de capital a los que den derecho los valores mobiliarios emitidos.
Artículo L225-133 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 8 Diario Oficial de 26 de junio de 2004)
Si la junta general o, en el caso de la delegación contemplada en el artículo L. 225-129, el consejo de administración o el directorio, lo hubiera decidido expresamente, los títulos de capital no suscritos con carácter preferente serán atribuidos a los accionistas que hayan suscrito un número de acciones superior al que podían suscribir por su derecho preferente, proporcionalmente a los derechos de suscripción de los que dispongan y, en cualquier caso, hasta el límite de sus peticiones.
Artículo L225-134 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 9 Diario Oficial de 26 de junio de 2004)
I. - Si las suscripciones con carácter preferente y, en su caso, en suscripción libre, no hubieran absorbido la totalidad de la ampliación de capital:
1º El importe de la ampliación de capital podrá limitarse al importe de las suscripciones, salvo decisión en contrario
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CÓDIGO DE COMERCIO de la junta general. En ningún caso, el importe de la ampliación de capital podrá ser inferior a las tres cuartas partes de la ampliación decidida;
2º Las acciones no suscritas podrán ser libremente distribuidas, total o parcialmente, salvo que la junta haya decidido de otro modo;
3º Las acciones no suscritas podrán ser ofrecidas al público, total o parcialmente, cuando la junta haya autorizado expresamente esta posibilidad.
II. - El consejo de administración o el directorio podrá utilizar, en el orden que determine, las facultades previstas anteriormente o solamente algunas de ellas. La ampliación de capital no se realizará cuando, tras el ejercicio de estas facultades, el importe de las suscripciones recibidas no alcance la totalidad de la ampliación de capital o las tres cuartas partes de esta ampliación en el caso previsto en el párrafo 1º del punto I.
III. - Sin embargo, el consejo de administración o el directorio podrá, de oficio y en cualquier caso, limitar la ampliación de capital al importe alcanzado cuando las acciones no suscritas representen menos del 3% de el aumento del capital. Cualquier acuerdo en contrario será considerado como no escrito.
Artículo L225-135 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 10 Diario Oficial de 26 de junio de 2004)
La junta que decida o autorice una ampliación de capital podrá suprimir el derecho de suscripción preferente para la totalidad o para una parte de dicha ampliación. Resolverá tras examinar el informe del consejo de administración o del directorio. Cuando decida la ampliación del capital, resolverá igualmente en base al informe de los auditores de cuentas. Cuando el consejo de administración o el directorio proceda a emisiones en aplicación de una autorización por parte de la junta general, el auditor de cuentas remitirá un informe al consejo de administración o en el directorio.
En las sociedades cuyos títulos de capital estén admitidos a negociación en un mercado regulado, la junta podrá prever que la ampliación de capital que decida o autorice incluya un plazo de prioridad de suscripción en favor de los accionistas, cuya duración máxima será fijada por decreto adoptado en Conseil d'Etat. Podrá igualmente delegar en el consejo de administración o en el directorio la facultad de valorar si procede prever tal plazo y de fijar eventualmente dicho plazo en las mismas condiciones.
Un decreto adoptado en Conseil d'Etat precisará las condiciones en las que se realizarán los informes de los auditores de cuentas previstos en el presente artículo.
Artículo L225-135-1 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 11 Diario Oficial de 26 de junio de 2004)
En caso de ampliación de capital con o sin derecho de suscripción preferente, la junta podrá prever que el número de títulos pueda ser aumentado durante un plazo fijado por decreto adoptado en Conseil d'Etat, hasta el límite de una fracción de la emisión inicial determinada por el mismo decreto y al mismo precio que el decidido para la emisión inicial. El límite previsto en el párrafo 1º del punto I del artículo L. 225-134 se aumentará en tal caso en las misma proporciones.
Artículo L225-136 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 12 Diario Oficial de 26 de junio de 2004)
La emisión por llamamiento público al ahorro, sin derecho preferente de suscripción, de títulos de capital estará sujeta a las siguientes condiciones:
1º Para las sociedades cuyos títulos de capital estén admitidos a negociación en un mercado regulado y en la medida en que los valores mobiliarios a emitir de manera inmediata o diferida les sean asimilables, el precio de emisión deberá fijarse según las modalidades establecidas por decreto adoptado en Conseil d'Etat previa consulta con la Autoridad de Mercados Financieros.
No obstante, hasta el límite de 10 del capital social por año, la junta general extraordinaria podrá autorizar al consejo de administración o al directorio para que fije el precio de emisión según las modalidades que determine y tras considerar un informe del consejo de administración o del directorio y un informe especial del auditor de cuentas. Cuando se haga uso de esta autorización, el consejo de administración o el directorio elaborará un informe, certificado por el auditor de cuentas, en el que se describan las condiciones definitivas de la operación y se presenten los elementos de apreciación de la incidencia efectiva de dicha operación sobre la situación del accionista.
2° En los demás casos, el precio de emisión o las condiciones de determinación de este precio serán fijados por la junta general extraordinaria tras considerar el informe del consejo de administración o del directorio y el informe especial del auditor de cuentas.
Artículo L225-138 (Ley nº 2001-152 de 19 de febrero de 2001 Artículo 1° III, Artículo 17 VII, Artículo 29 2° Diario Oficial de 20 de febrero de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 124 Diario Oficial de 2 de agosto de 2003) (Ley nº 2003-775 de 21 de agosto de 2003 Artículo 109 III 3 Diario Oficial de 22 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 13 Diario Oficial de 26 de junio de 2004)
I. - La junta general que decida la ampliación de capital podrá reservarla a una o varias personas designadas nominalmente o a categorías de personas que cumplan determinados criterios. Con este fin, podrá suprimir el derecho de suscripción preferente. Las personas designadas nominalmente como beneficiarias de esta disposición no podrán tomar parte en la votación. El quórum y la mayoría necesarios serán calculados tras la deducción de las acciones que éstas posean. No será de aplicación el procedimiento previsto en el artículo L. 225-147.
Cuando la junta general extraordinaria suprima el derecho de suscripción preferente en favor de una o varias
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CÓDIGO DE COMERCIO categorías de personas que cumpla los criterios determinados por ella, podrá delegar en el consejo de administración o en el directorio la tarea de elaborar la lista de beneficiarios dentro de esta o estas categorías y el número de títulos a adjudicar a cada uno de ellos, dentro de los límites máximos previstos en el primer párrafo del artículo L. 225-129-2. Cuando se haga uso de esta delegación, el consejo de administración o el directorio presentará un informe complementario en la próxima junta general ordinaria, certificado por el auditor de cuentas, en el que se describan las condiciones definitivas de la operación.
II. - El precio de emisión o las condiciones de determinación de este precio serán fijados por la junta general extraordinaria tras considerar el informe del consejo de administración o del directorio y el informe especial del auditor de cuentas.
III. - La emisión deberá efectuarse en un plazo de dieciocho meses desde la junta general que la haya decidido o que haya votado la delegación contemplada en el artículo L. 225-129.
Artículo L225-138-1 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 13, Artículo 14 Diario Oficial de 26 de junio de 2004)
Para la aplicación del párrafo primero del artículo L.443-5 del Código de Trabajo relativo a las ampliaciones de capital reservadas a las personas que se hayan adherido a un plan de ahorro empresarial, cuando la junta general haya suprimido el derecho de suscripción preferente en favor de los trabajadores de la sociedad o de las sociedades vinculadas a ella en virtud del artículo L.225-180, será de aplicación lo dispuesto en los puntos I y II del artículo L. 225-38 y:
1º El precio de suscripción seguirá determinado en las condiciones definidas en el artículo L.443-5 del Código de Trabajo;
2º La ampliación de capital sólo será realizada hasta el importe de los títulos de capital suscritos por los trabajadores individualmente o por mediación de un fondo de inversión colectivo o de los títulos emitidos por sociedades de inversión de capital variable reguladas por el artículo L.214-40-1 del Código Monetario y Financiero . No serán necesarios los requisitos formales previstos en los artículos L.225-142, L.225-144 y L.225-146;
3º (suprimido) 4º El plazo que se podrá conceder a los suscriptores para el desembolso de sus títulos no podrá ser superior a tres
años; 5º Los títulos de capital o valores mobiliarios que dan acceso al capital podrán ser desembolsados, a petición de la
sociedad o del suscriptor por pagos periódicos o por deducciones idénticas y periódicas en el salario del suscriptor; 6º Los títulos de capital o valores mobiliarios que den acceso al capital suscrito de esta forma y que hayan sido
expedidos antes de la expiración del plazo de cinco años previsto en el artículo L. 443-6 del Código de Trabajo solamente serán negociables después de su desembolso íntegro;
7º Los títulos de capital o valores mobiliarios que den acceso al capital y estén reservados a las personas que se hayan adherido a los planes de ahorro mencionados en el artículo L.443-1 del Código de Trabajo podrán, como excepción a lo establecido en las disposiciones del párrafo primero del artículo L.225-131, ser emitidas aunque el capital social no haya sido íntegramente desembolsado.
El hecho de que los títulos mencionados en el párrafo anterior no hayan sido íntegramente desembolsados no impedirá la emisión de títulos de capital para desembolsar por aportación dineraria.
Los participantes en el plan de ahorro empresarial previsto en el artículo L.443-1 del Código de Trabajo podrán obtener la rescisión o la reducción de sus compromisos de suscripción o de posesión de títulos de capital o de valores mobiliarios que den acceso al capital y hayan sido emitidos por la empresa en el caso y las condiciones fijados por los decretos adoptados en Conseil d'Etat previstos en el artículo L.442-7 de dicho Código.
Artículo L225-139 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 15 Diario Oficial de 26 de junio de 2004)
Un decreto adoptado en Conseil d'Etat determinará las menciones que deberán figurar en los informes previstos en los artículos L. 225-129, L. 225-135, L. 225-136 y L. 225-138, así como en los informes previstos en caso de emisión de acciones preferentes o valores mobiliarios que dan acceso al capital.
Artículo L225-140 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 16 Diario Oficial de 26 de junio de 2004)
Cuando los títulos de capital estén gravados con un usufructo, el derecho de suscripción preferente vinculado a ellos pertenecerá al nudo propietario. Si éste vendiera los derechos de suscripción, las cantidades que provengan de esa cesión o los bienes que adquiera por medio de esas cantidades estarán sometidos al usufructo. Si el nudo propietario por negligencia no ejerciese su derecho, el usufructuario podrá sustituirlo para suscribir nuevos títulos o para vender los derechos. En este último caso, el nudo propietario podrá exigir el reembolso de las cantidades que provengan de tal cesión. Los bienes así adquiridos estarán sometidos al usufructo.
Los nuevos títulos pertenecerán al nudo propietario para la nuda propiedad y al usufructuario para el usufructo. Sin embargo, en caso de pago de fondos efectuado por el nudo propietario o el usufructuario para realizar o completar una suscripción, las acciones nuevas sólo pertenecerán al nudo propietario y al usufructuario hasta el límite del valor de los derechos de suscripción. El excedente de las nuevas acciones pertenecerá en plena propiedad al que haya aportado los fondos.
Un decreto adoptado en Conseil d'Etat fijará las condiciones de aplicación del presente artículo cuyas disposiciones serán igualmente aplicables en caso de adjudicación de títulos gratuitos.
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CÓDIGO DE COMERCIO Las disposiciones del presente artículo se aplicarán en caso de silencio de las partes.
Artículo L225-141 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 17 Diario Oficial de 26 de junio de 2004)
El plazo concedido a los accionistas para el ejercicio del derecho de suscripción no podrá ser inferior a cinco días bursátiles a contar desde la apertura de la suscripción.
Este plazo se cerrará anticipadamente en cuanto todos los derechos de suscripción con carácter preferente hayan sido ejercidos o en cuanto la ampliación de capital haya sido íntegramente suscrita tras la renuncia individual a sus derechos de suscripción de los accionistas que no hayan suscrito.
Artículo L225-142 La sociedad realizará, antes de la apertura de la suscripción, los requisitos formales de publicidad cuyas
condiciones serán determinadas por un decreto adoptado en Conseil d'Etat.
Artículo L225-143 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 18 Diario Oficial de 26 de junio de 2004)
Se hará constar el contrato de suscripción a títulos de capital o a valores mobiliarios que dan acceso al capital, por medio de un boletín de suscripción, extendido en las condiciones determinadas por decreto adoptado en Conseil d'Etat.
Sin embargo, el resguardo de suscripción no será exigido por los establecimientos de crédito ni por los proveedores de servicios de inversión que reciban la orden de efectuar una suscripción quedando a cargo de estos mandatarios la presentación del justificante de su mandato.
Artículo L225-144 Las acciones suscritas por aportación dineraria tendrán que estar desembolsadas obligatoriamente en el momento
de la suscripción por, al menos, un cuarto de su valor nominal y, eventualmente, por la totalidad de la prima de emisión. El desembolso del resto deberá producirse, en una o varias veces, en el plazo de cinco años contados a partir del día en que la ampliación de capital sea definitiva.
Se aplicarán las disposiciones del párrafo primero del artículo L.225-5, con excepción de las relativas a la lista de suscriptores. La retirada de los fondos que provengan de las suscripciones por aportación dineraria podrá ser efectuada por un mandatario de la sociedad tras la expedición del certificado por parte del depositario.
Si la ampliación de capital no se realizara en el plazo de seis meses desde la apertura de la suscripción, podrán ser aplicadas las disposiciones del párrafo segundo del artículo L.225-11.
Artículo L.225-145 (Ley nº 2001-1168 de 11 de diciembre de 2001 art. 27 II Diario Oficial de 12 de diciembre de 2001)
En las sociedades que hagan, para la venta de sus acciones, oferta pública de ahorro, se considerará realizado la ampliación de capital cuando uno o varios proveedores de servicios de inversión autorizados para proporcionar el servicio de inversión mencionado en el apartado 6° del artículo L.321-1 del Código Monetario y Financiero, o personas mencionadas en el artículo L.532-18 de dicho Código y autorizadas a suministrar el mismo servicio en el territorio de su Estado de origen, hayan garantizado de manera irrevocable su buen fin. El pago de la fracción liberada del valor nominal y de la totalidad de la prima de emisión deberá realizarse el día trigésimo quinto, como máximo, a partir del cierre del plazo de suscripción.
Artículo L225-146 Las suscripciones y los pagos deberán hacerse constar por un certificado del depositario tras la presentación de los
boletines de suscripción, extendido en el momento del depósito de los fondos. Los desembolsos de acciones por compensación de créditos líquidos y exigibles contra la sociedad serán
constatados por un certificado del notario o del auditor de cuentas. Este certificado equivaldrá al certificado del depositario.
Artículo L225-147 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 19 Diario Oficial de 26 de junio de 2004)
En caso de aportaciones en especie o de estipulación de beneficios especiales, uno o varios auditores de aportaciones serán designados judicialmente. Serán sometidos a las incompatibilidades previstas en el artículo L. 822-11.
Estos auditores evaluarán, bajo su responsabilidad, el valor de las aportaciones en especie y los beneficios especiales. Un decreto adoptado en Conseil d'Etat establecerá las menciones especiales de su informe, el plazo en que éste deba remitirse y las condiciones en las que deba ponerse a disposición de los accionistas. Las disposiciones de los artículos L.225-10 serán aplicables a la junta general extraordinaria.
Si la junta aprobara la valoración de las aportaciones y la concesión de beneficios especiales, hará constar la realización de la ampliación de capital.
Si la junta redujera la valoración de las aportaciones y la concesión de los beneficios especiales, se requerirá la aprobación expresa de las modificaciones por parte de los aportantes, los beneficiarios o sus mandatarios debidamente autorizados a este efecto. En su defecto, no se producirá la ampliación de capital.
Los títulos de capital emitidos como remuneración de una aportación en especie serán íntegramente desembolsados en el momento de su emisión.
La junta general extraordinaria de una sociedad cuyos títulos estén admitidos a negociación en un mercado regulado podrá delegar en el consejo de administración o en el directorio y por un plazo máximo de veintiséis meses,
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CÓDIGO DE COMERCIO las competencias necesarias para proceder a una ampliación de capital, hasta el límite del 10% de su capital social, con vistas a remunerar las aportaciones en especie efectuadas a la sociedad y constituidas por títulos de capital o valores mobiliarios que dan acceso al capital, siempre que no sean aplicables las disposiciones del artículo L. 225-148. El consejo de administración o el directorio resolverá de conformidad con los párrafos tercero o cuarto del presente artículo, tras examinar el informe del o de los auditores de cuentas mencionados en los párrafos primero y segundo del presente artículo.
Artículo L225-148 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 VIII Diario Oficial de 26 de junio de 2004)
Las disposiciones del artículo L.225-147 no serán aplicables en el caso de que una sociedad cuyas acciones estén admitidas a negociación en un mercado regulado proceda a una ampliación de capital para remunerar títulos aportados a una oferta pública de canje por títulos de una sociedad cuyas acciones estén admitidas a negociación en un mercado regulado de un Estado parte en el Acuerdo sobre el Espacio Económico Europeo o sea miembro de la Organización de Cooperación y de Desarrollo Económico.
La ampliación de capital se producirá en las condiciones previstas en el artículo L.225-129. Sin embargo, los auditores de cuentas deberán dar su opinión sobre las condiciones y las consecuencias de la emisión en el programa difundido en el momento de su realización y en su informe en la primera junta general ordinaria reunida tras la emisión.
Artículo L225-149 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 20 Diario Oficial de 26 de junio de 2004)
La ampliación de capital que se derive del ejercicio de los derechos vinculados a los valores mobiliarios que dan acceso al capital no estará sujeta a los requisitos formales previstos en el artículo L. 225-142, en el párrafo segundo del artículo L. 225-144 y en el artículo L. 225-146. Cuando el titular de un valor mobiliario emitido en aplicación del artículo L. 225-149-2 no pueda optar a un número entero, la fracción excedente del cociente exacto del reparto será objeto de un abono en metálico según las modalidades de cálculo determinadas por decreto adoptado en Conseil d'Etat.
La ampliación de capital se considerará definitivamente realizada por el simple hecho del ejercicio de los derechos y, en su caso, de los pagos correspondientes.
En todo momento durante el ejercicio en curso y a más tardar en la primera reunión siguiente al cierre de éste, el consejo de administración o el directorio de la sociedad hará constar, si procede, el número y el importe nominal de las acciones creadas en beneficio de los titulares de los derechos del ejercicio transcurrido y realizará las modificaciones necesarias a las cláusulas de los estatutos relativas al importe del capital social y al número de títulos que lo componen.
El presidente del directorio o el director general, por delegación del directorio o del consejo de administración, podrá proceder a estas operaciones en cualquier momentos durante el ejercicio y a más tardar en una fecha límite fijada por decreto adoptado en Conseil d'Etat.
Artículo L225-149-1 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 134 IV Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 21 Diario Oficial de 26 de junio de 2004) (Disposición nº 2004-1343 de 9 de diciembre de 2004 Artículo 78 XXVII Diario Oficial de 10 de diciembre de 2004)
En caso de emisión de nuevos títulos de capital o de nuevos valores mobiliarios que dan acceso al capital, así como en caso de fusión o de escisión de la sociedad que fuera a emitir dichos títulos, el consejo de administración o el directorio podrá suspender, durante un plazo cuya duración máxima será determinada por decreto adoptado en Conseil d'Etat, la posibilidad de obtener la adjudicación de títulos de capital mediante el ejercicio del derecho mencionado en el artículo L. 225-149 o en el artículo L. 225-178.
Salvo disposición en contrario del contrato de emisión, los títulos de capital obtenidos, tras finalizar el periodo de suspensión, mediante el ejercicio de los derechos vinculados a los valores mobiliarios darán derecho a los dividendos pagados en concepto del ejercicio durante el cual hubieran sido emitidos.
Artículo L225-149-2 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 22 Diario Oficial de 26 de junio de 2004)
Los derechos vinculados a los títulos que den acceso al capital y que hubieran sido adquiridos por la sociedad emisora o por la sociedad que fuera a emitir nuevos títulos de capital serán anulados por la sociedad emisora.
Artículo L225-149-3 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 22 Diario Oficial de 26 de junio de 2004)
Las decisiones tomadas en virtud del párrafo segundo del artículo L. 225-129-6 o relativas a los informes complementarios contemplados en el artículo L. 225-129-5, en el párrafo segundo del apartado 1° del artículo L. 225-136 y en el párrafo segundo del punto I del artículo L. 225-138 podrán dar lugar a una intimación para su cumplimiento según las modalidades definidas en los artículos L. 238-1 y L. 238-6.
Podrán anularse los acuerdos tomados infringiendo los artículos L.225-129 y L.225-142. Serán nulos los acuerdos tomados infringiendo las disposiciones de la presente subsección distintas a las
mencionadas en el presente artículo.
Subsección 2 De las obligaciones con bonos de suscripción de acciones
Subsección 3
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CÓDIGO DE COMERCIO De las obligaciones convertibles en acciones
Subsección 4 De las obligaciones canjeables por acciones
Subsección 5 De la suscripción y de la compra de acciones por parte de los empleados Artículos L225-177 a
L225-197-5
Artículo L225-177 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 132 I Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
La junta general extraordinaria, tras el examen del informe del consejo de administración o del directorio, según el caso, y tras el examen del informe de los auditores de cuentas, podrá autorizar al consejo de administración o al directorio a que conceda, en beneficio de los trabajadores de la sociedad o de algunos de ellos, opciones que les den derecho a la suscripción de acciones. La junta general extraordinaria determinará el plazo durante el cual esta autorización podrá ser utilizada por el consejo de administración o el directorio, el cual no podrá ser superior a treinta y ocho meses. Sin embargo, las autorizaciones anteriores a la fecha de publicación de la Ley nº 2001-420 de 15 de mayo de 2001 relativa a las nuevas regulaciones económicas serán válidas hasta el fin de su mandato.
El consejo de administración o el directorio determinará las condiciones en las que serán otorgadas dichas opciones. Estas condiciones podrán incluir cláusulas de prohibición de reventa inmediata de todo o parte de las acciones sin que el plazo impuesto para la conservación de los títulos pueda exceder de tres años a partir de la contratación del derecho de opción.
Las opciones podrán ser otorgadas o contratadas aunque el capital social no haya sido íntegramente desembolsado.
El precio de suscripción será establecido el día en que la opción haya sido otorgada por el consejo de administración o el directorio según las modalidades determinadas por la junta general extraordinaria, tras el examen del informe de los auditores de cuentas. Si las acciones de la sociedad no son admitidas a negociación en un mercado regulado, el precio de suscripción será determinado por métodos objetivos establecidos para la evaluación de acciones teniendo en cuenta, según una ponderación apropiada para cada caso, la situación neta contable, la rentabilidad y las perspectivas de actividad de la empresa. Estos criterios serán apreciados eventualmente sobre una base consolidada o, en su defecto, teniendo en cuenta los elementos financieros provenientes de las filiales significativas. En su defecto, el precio de suscripción será determinado por medio de la división del importe del activo neto reevaluado, calculado según el balance más reciente, entre el número de títulos existentes. Un decreto establecerá las condiciones de cálculo del precio de suscripción. Si las acciones de la sociedad fueran admitidas a negociación en un mercado regulado, el precio de suscripción no podrá ser inferior al 80% de la media de las cotizaciones en las veinte sesiones bursátiles anteriores a ese día, ninguna opción podrá ser concedida hasta que no hayan transcurrido veinte sesiones bursátiles desde el corte de las acciones de un cupón que da derecho a un dividendo o a una ampliación de capital.
En una sociedad cuyos títulos estén admitidos a negociación en un mercado regulado, las opciones no podrán ser concedidas:
1º En el plazo de diez sesiones de bolsa inmediatamente anteriores o posteriores a la fecha en la que las cuentas consolidadas, o, en su defecto, las cuentas anuales, hayan sido presentadas públicamente;
2º En el plazo comprendido entre la fecha en la que los órganos sociales de la sociedad hayan tenido conocimiento de una información que, si se hubiese hecho pública, habría podido tener una incidencia significativa en la cotización de los títulos de la sociedad, y diez sesiones bursátiles después del día en que esta información se haya hecho pública.
Las opciones que den derecho a la suscripción de títulos que no estén admitidos a negociación en un mercado regulado sólo podrán ser concedidas a los trabajadores de la sociedad que adjudicará estas opciones o los de las sociedades mencionadas en el párrafo 1º del artículo L. 225-180.
Artículo L225-178 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
La autorización dada por la junta general extraordinaria conllevará, a favor de los beneficiarios, la renuncia expresa de los accionistas a su derecho de suscripción preferente de las acciones que sean emitidas a medida que se vayan contratando opciones.
La ampliación de capital que resulte de estas contrataciones de opciones no exigirá los requisitos formales previstos en el artículo L.225-142, en el párrafo segundo del artículo L. 225-144 y en el artículo L.225-146. Será definitivamente realizada con el simple hecho de la declaración del ejercicio del derecho de opción, acompañada del boletín de suscripción y del pago en efectivo o por compensación con créditos, de la cantidad correspondiente.
En la primera reunión que siga al cierre de cada ejercicio, el consejo de administración o el directorio, según el caso, hará constar, si procede, el número y el importe de las acciones emitidas durante el período del ejercicio como consecuencia del contrato de los derechos de opciones y aportará las modificaciones necesarias a las cláusulas de los estatutos relativas al importe del capital social y al número de acciones que lo representan. El presidente podrá proceder a estas operaciones, por delegación del consejo de administración o del directorio, en el mes siguiente al cierre del ejercicio. El consejo de administración o el directorio, o el presidente en caso de delegación, podrán proceder igualmente en todo momento a esta constatación para el ejercicio en curso y añadir a los estatutos las modificaciones correspondientes.
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CÓDIGO DE COMERCIO Artículo L225-179 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 132 II Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
La junta general extraordinaria podrá autorizar también al consejo de administración o al directorio, según el caso, a conceder, en beneficio de los miembros del personal trabajador de la sociedad o a algunos de ellos, opciones que den derecho a compra de acciones que provengan de un rescate efectuado, previamente a la apertura de la opción, por la propia sociedad en las condiciones definidas en los artículos L.225-208 o L.225-209. La junta general extraordinaria fijará el plazo durante el cual esta autorización podrá ser utilizada por el consejo de administración o por el directorio, no pudiendo ser superior a treinta y ocho meses. Sin embargo, las autorizaciones anteriores a la fecha de publicación de la Ley nº 2001-420 de 15 de mayo de 2001 relativa a las nuevas regulaciones económicas serán válidas hasta el fin de su mandato.
En ese caso, se aplicarán las disposiciones del párrafos segundo y cuarto del artículo L.225-177. Además, el precio de la acción, en el día en que la opción sea concedida, no podrá ser inferior al 80% de la cotización media de compra de las acciones poseídas por la sociedad en concepto de los artículos L.225-208 y L.225-209.
Las opciones que den derecho a la compra de títulos que no estén admitidos a negociación en un mercado regulado sólo podrán ser concedidas a los trabajadores de la sociedad que adjudique estas opciones o los de las sociedades mencionadas en el párrafo 1º del artículo L. 225-180.
Artículo L225-180 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 32 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
I. - Las opciones podrán ser concedidas, en las mismas condiciones que en los artículos L.225-177 a L. 225-179 anteriores:
1º Bien, en beneficio de los miembros del personal asalariado de las sociedades o de las agrupaciones de interés económico en las que al menos del 10% del capital o de los derechos de voto sean detentados, directa o indirectamente por la sociedad que concede las opciones;
2º Bien, en beneficio de los miembros del personal asalariado de las sociedades o agrupaciones de interés económico que detenten, directa o indirectamente, al menos un 10% del capital o de los derechos de voto de la sociedad que conceda las opciones;
3º Bien, en beneficio de los miembros del personal asalariado de las sociedades o agrupaciones de interés económico en las que al menos un 50% del capital o de los derechos de voto sean detentados, directa o indirectamente, por un sociedad que posea por si misma, directa o indirectamente, al menos un 50% del capital de la sociedad que concede las opciones.
II. - La junta general ordinaria de la sociedad que controle mayoritariamente, directa o indirectamente, a la que concede las opciones, será informada en las condiciones previstas en el artículo L.225-184.
Podrán igualmente ser concedidas opciones en las mismas condiciones que en los artículos L.225-177 a L.225-179 por una empresa controlada, directa o indirectamente, exclusiva o conjuntamente, por un órgano central o los establecimientos de crédito afiliados a ella en el sentido de los artículos L.511-30 a L.511-32 del Código Monetario y Financiero a los empleados de dichas sociedades así como a los de las entidades cuyo capital sea detentado en más del 50%, por dicho órgano central o por establecimientos afiliados, directa o indirectamente, exclusiva o conjuntamente.
Artículo L225-181 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX, X Diario Oficial de 26 de junio de 2004)
El precio establecido para la suscripción o la compra de las acciones no podrá ser modificado durante el período de validez de la opción.
No obstante, cuando la sociedad realice una amortización o una reducción del capital, una modificación del reparto de los beneficios, una adjudicación gratuita de acciones, una incorporación al capital de reservas, beneficios o primas de emisión, una adjudicación de reservas o cualquier emisión de títulos de capital o de títulos que den derecho a la adjudicación de títulos de capital que incluya un derecho de suscripción reservado a los accionistas, deberá adoptar las medidas necesarias para proteger los intereses de los beneficiarios de las opciones en las condiciones previstas en el artículo L. 228-99.
Artículo L225-182 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
El número total de las opciones abiertas y aún no contratadas no podrá dar derecho a suscribir un número de acciones que exceda de una fracción del capital social que será determinada por un decreto adoptado en Conseil d'Etat.
No podrán ser concedidas opciones a los empleados y a los mandatarios sociales que posean más del 10% del capital social.
Artículo L225-183 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
La junta general extraordinaria fijará el plazo durante el cual deberán ser ejercidos los derechos de opciones. Los derechos que resulten de las opciones concedidas no serán transmisibles hasta que la opción haya sido
ejercida. En caso de fallecimiento del beneficiario, sus herederos podrán ejercer la opción en un plazo de seis meses
contados a partir de la fecha del fallecimiento.
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CÓDIGO DE COMERCIO Artículo L225-184 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 132 III Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Un informe especial comunicará cada año a la junta general ordinaria las operaciones realizadas en virtud de las disposiciones previstas en los artículos L.225-177 al 225-186.
Este informe también dará cuenta: - Del número, de las fechas de vencimiento y del precio de las opciones de suscripción o de adquisición de
acciones que, durante el año y en razón de los mandatos y funciones ejercidos en la sociedad, hayan sido concedidas a cada uno de estos mandatarios por la sociedad y por aquéllas que estén vinculadas a ella en las condiciones previstas en el artículo L.225-180;
- Del número, de las fechas de vencimiento y del precio de las opciones de suscripción o de compra de acciones que hayan sido concedidas durante el año a cada uno de estos mandatarios, en razón de los mandatos y funciones que ejercieran en ellas en representación de las sociedades controladas en el sentido del artículo L. 233-16
- Del número y del precio de las acciones suscritas o compradas durante el ejercicio por los mandatarios sociales de la sociedad al ejercer el derecho sobre una o varias de las opciones detentadas en las sociedades citadas en los dos párrafos anteriores.
Este informe indicará igualmente: - El número, el precio y las fechas de vencimiento de las opciones de suscripción o de compra de acciones
concedidas durante el año por la sociedad y por las sociedades o agrupaciones vinculadas a ella en las condiciones previstas en el artículo L.225-180, a cada uno de los diez empleados de las sociedad que no fueran mandatarios sociales cuyo número de opciones concedidas de este modo sea mayor,
- El número y el precio de las acciones que, durante el año, hayan sido suscritas o compradas por cada uno de los diez empleados de la sociedad, que no siendo mandatarios sociales, al ejercer el derecho sobre una o varias de las opciones detentadas sobre las sociedades citadas en el párrafo anterior, hayan suscrito o adquirido el número más elevado de acciones.
Artículo L225-185 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 132 IV Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Podrán ser concedidas opciones con derecho a suscripción de acciones, durante un período de dos años a partir de la inscripción de la sociedad, a los mandatarios sociales personas físicas que participen con los empleados en la constitución de una sociedad.
Dichas opciones podrán igualmente ser concedidas, durante un período de dos años a partir del rescate, a los mandatarios sociales personas físicas de una sociedad que adquieran junto a los empleados la mayoría de los derechos de voto para asegurar la continuidad de la sociedad.
En caso de adjudicación de opciones, en un plazo de dos años tras la creación de una sociedad o el rescate de la mayoría del capital de una sociedad por sus empleados o sus mandatarios sociales, el máximo previsto en el último párrafo del artículo L.225-182 será modificado hasta llegar a un tercio del capital.
El presidente del consejo de administración, el director general, los directores generales delegados, los miembros del directorio o el gerente de una sociedad por acciones podrán recibir, por parte de la sociedad, opciones que den lugar a la suscripción o a la compra de acciones en las condiciones previstas en los artículos L.225-177 a L.225-184.
Podrán igualmente recibir opciones que den derecho a la suscripción o a la compra de acciones de una sociedad que esté vinculada en las condiciones previstas en le artículo L. 225-180, siempre y cuando las acciones de ésta última estén admitidas a negociación en un mercado regulado.
Artículo L225-186 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 31 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Los artículos L.225-177 a L.225-185 serán aplicables a los certificados de inversión, a los certificados de cooperativas de inversión y a los certificados de cooperativas de socios.
Artículo L225-187-1 (Ley nº 2001-152 de 19 de febrero de 2001 Artículo 29 5° Diario Oficial de 20 de febrero de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Los artículos L. 225-192 a L.225-194 y el artículo L.225-197 continuarán siendo aplicables con su redacción anterior a la publicación de la Ley nº 2001-152 de 19 de febrero de 2001 sobre el ahorro salarial hasta que finalice un plazo de cinco años contados a partir de esta publicación.
Artículo L225-197-1 (Introducido por la Ley nº 2004-1484 de 30 de diciembre de 2004 Artículo 83 I a, Ley de finanzas para 2005 Diario Oficial de 31 de diciembre de 2004)
I. - La junta general extraordinaria, tras el examen del informe del consejo de administración o del directorio, según el caso, y tras el examen del informe de los auditores de cuentas, podrá autorizar al consejo de administración o al directorio a que proceda, en beneficio de los trabajadores de la sociedad o de algunas categorías de ellos, a una adjudicación gratuita de acciones existentes o a emitir.
La junta general extraordinaria fijará el porcentaje máximo del capital social que pueda ser adjudicado en las condiciones establecidas en el párrafo anterior. La adjudicación de las acciones a sus beneficiarios será definitiva al
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CÓDIGO DE COMERCIO finalizar un periodo de adquisición cuya duración máxima será determinada por la junta general extraordinaria y cuya duración mínima no podrá ser inferior a dos años. La junta general extraordinaria fijará asimismo la duración mínima de la obligación de conservación de las acciones por los beneficiarios. Este plazo empezará a contar a partir de la adjudicación definitiva de las acciones y no podrá ser inferior a dos años.
En una sociedad cuyos títulos estén admitidos a negociación en un mercado regulado, al finalizar el periodo de obligación de conservación, las opciones no podrán ser concedidas:
1º En el plazo de diez sesiones de Bolsa inmediatamente anteriores o posteriores a la fecha en la que las cuentas consolidadas, o, en su defecto, las cuentas anuales, hayan sido presentadas públicamente;
2º En el plazo comprendido entre la fecha en la que los órganos sociales de la sociedad hayan tenido conocimiento de una información que, si se hubiese hecho pública, habría podido tener una incidencia significativa en la cotización de los títulos de la sociedad, y diez sesiones bursátiles después del día en que esta información se haya hecho pública.
El consejo de administración o, en su caso, el directorio determinará la identidad de los beneficiarios de las adjudicaciones de acciones mencionadas en el primer párrafo. Establecerá las condiciones y, en su caso, los criterios de adjudicación de las acciones.
La junta general extraordinaria determinará el plazo durante el cual esta autorización podrá ser utilizada por el consejo de administración o el directorio. Dicho plazo no podrá ser superior a treinta y ocho meses.
El número total de acciones adjudicadas gratuitamente no podrá exceder del 10% del capital social. II. - El presidente del consejo de administración, el director general, los directores generales delegados, los
miembros del directorio o el gerente de una sociedad por acciones podrán recibir acciones de la sociedad en las mismas condiciones que los trabajadores de la sociedad.
Podrán igualmente recibir acciones de una sociedad que esté vinculada en las condiciones previstas en le artículo L. 225-197, siempre y cuando las acciones de ésta última estén admitidas a negociación en un mercado regulado.
No podrán ser adjudicadas acciones a los empleados y a los mandatarios sociales que posean más del 10% del capital social. Una adjudicación gratuita de acciones tampoco podrá tener como resultado que los empleados y los mandatarios sociales posean más del 10% del capital social cada uno.
Artículo L225-197-2 (Introducido por la Ley nº 2004-1484 de 30 de diciembre de 2004 Artículo 83 I a, Ley de finanzas para 2005 Diario Oficial de 31 de diciembre de 2004)
I. - Las acciones podrán ser adjudicadas, en las mismas condiciones que las mencionadas en el artículo L.225-197-1:
1º En beneficio de los miembros del personal asalariado de las sociedades o de las agrupaciones de interés económico en las que al menos del 10% del capital o de los derechos de voto sean detentados, directa o indirectamente por la sociedad que adjudica las acciones;
2º En beneficio de los miembros del personal asalariado de las sociedades o grupos de interés económico que detenten, directa o indirectamente, al menos un 10% del capital o de los derechos de voto de la sociedad que adjudica las acciones;
3º O en beneficio de los miembros del personal asalariado de las sociedades o agrupaciones de interés económico en las que al menos un 50% del capital o de los derechos de voto sean detentados, directa o indirectamente, por un sociedad que posea por si misma, directa o indirectamente, al menos un 50% del capital de la sociedad que adjudica las acciones.
Las acciones no admitidas a negociación en un mercado regulado sólo podrán adjudicarse en las condiciones anteriormente indicadas a los empleados de la sociedad que procedan a esta adjudicación o a los mencionados en el apartado 1°.
II. - Podrán igualmente ser adjudicadas acciones en las mismas condiciones que las previstas en el artículo L.225-197-1 por una empresa controlada, directa o indirectamente, exclusiva o conjuntamente, por un órgano central o los establecimientos de crédito afiliados a ella en virtud y para la aplicación de los artículos L.511-30 a L.511-32 del Código Monetario y Financiero a los empleados de dichas sociedades así como a los de las entidades cuyo capital sea detentado en más del 50%, directa o indirectamente y exclusiva o conjuntamente, por dicho órgano central o por establecimientos de crédito.
Artículo L225-197-3 (Introducido por la Ley nº 2004-1484 de 30 de diciembre de 2004 Artículo 83 I a, Ley de finanzas para 2005 Diario Oficial de 31 de diciembre de 2004)
Los derechos que se deriven de la adjudicación gratuita de acciones no serán transmisibles hasta finalizar el periodo de adquisición.
En caso de fallecimiento del beneficiario, sus herederos podrán solicitar la adjudicación de las acciones en un plazo de seis meses a partir de la fecha del fallecimiento.
Artículo L225-197-4 (Introducido por la Ley nº 2004-1484 de 30 de diciembre de 2004 Artículo 83 I a, Ley de finanzas para 2005 Diario Oficial de 31 de diciembre de 2004)
Un informe especial comunicará cada año a la junta general ordinaria las operaciones realizadas en virtud de las disposiciones previstas en los artículos L.225-197-1 al 225-197-3.
Este informe también dará cuenta: - Del número y del valor de las acciones que, durante el año y en razón de los mandatos y funciones ejercidos en la
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CÓDIGO DE COMERCIO sociedad, hayan sido adjudicadas gratuitamente a cada uno de estos mandatarios por la sociedad y por aquéllas que estén vinculadas a ella en las condiciones previstas en el artículo L.225-197-2;
- Del número y del valor de las acciones que hayan sido adjudicadas gratuitamente durante el año a cada uno de estos mandatarios, en razón de los mandatos y funciones que ejercieran en ellas, por las sociedades controladas en el sentido del artículo L. 233-16
Dicho informe indicará igualmente el número y el valor de las acciones que, durante el año, hayan sido adjudicadas gratuitamente por la sociedad y por las sociedades o agrupaciones vinculadas a ella en las condiciones previstas en el artículo L. 225-197-2, a cada uno de los diez empleados de las sociedad que no fueran mandatarios sociales y cuyo número de acciones adjudicadas gratuitamente sea mayor.
Artículo L225-197-5 (Introducido por la Ley nº 2004-1484 de 30 de diciembre de 2004 Artículo 83 I a, Ley de finanzas para 2005 Diario Oficial de 31 de diciembre de 2004)
La junta general ordinaria de la sociedad que controle mayoritariamente, directa o indirectamente, a la que adjudica gratuitamente las acciones, será informada en las condiciones previstas en el artículo L.225-197-4.
Subsección 6 De la amortización del capital Artículos L225-198 a
L225-203
Artículo L225-198 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
La amortización del capital se efectuará en virtud de una estipulación estatutaria o de un acuerdo de la junta general extraordinaria y por medio de las cantidades distribuibles según el artículo L. 232-11. Esta amortización sólo se podrá realizar por vía de reembolso, igual para cada acción de una misma categoría y no conllevará reducción de capital.
Las acciones íntegramente amortizadas se denominarán bonos de disfrute.
Artículo L225-199 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Las acciones íntegra o parcialmente amortizadas perderán, hasta el importe debido, el derecho al primer dividendo previsto en el artículo L.232-19 y al reembolso del valor nominal. Conservará todos los demás derechos.
Artículo L225-200 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Cuando el capital esté dividido, bien en acciones de capital y en acciones total o parcialmente amortizadas, bien en acciones desigualmente amortizadas, la junta general de accionistas podrá decidir, en las condiciones requeridas para la modificación de los estatutos, la conversión de las acciones total o parcialmente amortizadas en acciones de capital.
Para ello, deberá prever que se efectúe una deducción obligatoria, hasta el importe amortizado de las acciones que se pretenda convertir, de la parte de los beneficios sociales de uno o varios ejercicios que repercutan sobre estas acciones, tras el pago, para las acciones parcialmente amortizadas, del primer dividendo o del interés estatutario que proceda.
Artículo L225-201 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Los accionistas podrán ser autorizados, en las mismas condiciones, a pagar a la sociedad el importe amortizado de sus acciones, aumentado, eventualmente, por el primer dividendo o por el interés estatutario producido en el período transcurrido del ejercicio en curso y, en su caso, durante el ejercicio anterior.
Artículo L225-202 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Las decisiones previstas en los artículos L. 225-200 y L. 225-201 serán sometidas a la ratificación de las juntas especiales de cada una de las categorías de accionistas que tengan los mismos derechos.
Artículo L225-203 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
El consejo de administración o el directorio, según el caso, aportará las modificaciones necesarias en las cláusulas de los estatutos, en la medida en que estas modificaciones correspondan materialmente a los resultados efectivos de las operaciones previstas en los artículos L. 225-200 y L.225-201.
Subsección 7 De la reducción de capital Artículos L225-204 a
L225-205
Artículo L225-204 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
La reducción de capital será autorizada o decidida por la junta general extraordinaria, que podrá delegar en el consejo de administración o en el directorio, según el caso, todas las competencias para realizarla. En ningún caso, podrá vulnerar la igualdad entre los accionistas.
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CÓDIGO DE COMERCIO Un informe realizado por los auditores de cuentas sobre la operación prevista será presentado a los accionistas de
la sociedad en un plazo determinado por decreto adoptado en Conseil d'Etat. La junta decidirá tras el examen del informe de los auditores que darán a conocer su opinión sobre las causas y condiciones de la reducción a efectuar.
Cuando el consejo de administración o el directorio, según el caso, realice la operación, por delegación de la junta general, levantará un acta, publicada posteriormente, y procederá a la modificación correspondiente en los estatutos.
Artículo L225-205 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Cuando la junta apruebe un proyecto de reducción del capital no motivada por pérdidas, el representante del sindicato de los obligacionistas y los acreedores cuyo crédito sea anterior a la fecha del depósito del acta de deliberación en la secretaría, podrán impugnar la reducción, en el plazo fijado por decreto adoptado en Conseil d'Etat.
Una resolución judicial rechazará esta impugnación o, por el contrario, ordenará, o bien el reembolso de los créditos, o bien la constitución de garantías si la sociedad las ofrece y si son consideradas como suficientes.
Las operaciones de reducción de capital no podrán iniciarse durante el período de impugnación ni, en su caso, antes de que se haya resuelto en primera instancia sobre dicha impugnación.
Si el juez de primera instancia admitiese la impugnación, se interrumpirá inmediatamente el procedimiento de reducción de capital hasta la constitución de garantías suficientes o hasta el reembolso de los créditos. Si no la admitiese a trámite, podrán iniciarse las operaciones de reducción.
Subsección 8 De la suscripción, de la compra o de la aceptación en prenda por parte de
las sociedades de sus propias acciones Artículos L225-206 a L225-217
Artículo L225-206 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
I. - Estará prohibida la suscripción por parte de la sociedad de sus propias acciones, ya sea directamente o por medio de una persona que actúe en su propio nombre pero a cuenta de la sociedad.
Los fundadores, o en el caso de una ampliación de capital, los miembros del consejo de administración o del directorio, según corresponda, estarán obligados, en las condiciones previstas en el artículo L.225-251 y en el párrafo primero del artículo L.225-256, a desembolsar las acciones suscritas por la sociedad que infrinjan lo dispuesto en el párrafo primero.
Cuando las acciones hayan sido suscritas por una persona que actúe en su propio nombre pero a cuenta de la sociedad, esta persona estará obligada a desembolsar las acciones solidariamente con los fundadores o, según el caso, los miembros del consejo de administración o del directorio. Además, se considerará que esta persona habrá suscrito estas acciones por su propia cuenta.
II. - La compra por parte de una sociedad de sus propias acciones estará autorizada en las condiciones y de acuerdo a las modalidades previstas en los artículos L.225-207 a L.225-217.
Las adquisiciones de acciones por una persona que actúe por cuenta de la sociedad estarán prohibidas salvo si se trata de un proveedor de servicios de inversión o de un miembro del mercado regulado que actúe en las condiciones del punto I del artículo 43 de la Ley nº 96-597 de 2 de julio de 1996 de modernización de las actividades financieras.
Artículo L225-207 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
La junta general que haya decidido una reducción del capital no motivado por pérdidas podrá autorizar al consejo de administración o al directorio, según el caso, a comprar un número determinado de acciones para anularlas.
Artículo L225-208 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004) (Ley nº 2004-1484 de 30 de diciembre de 2004 Artículo 83 I b Ley de finanzas para 2005 Diario Oficial de 31 de diciembre de 2004)
Las sociedades que permitan a sus trabajadores participar en sus resultados por adjudicación de sus acciones, las que adjudiquen sus acciones en las condiciones previstas en los artículos L.225-197-1 a L. 225-197-3 y las que concedan opciones de compra de sus acciones en las condiciones previstas en los artículos L.225-177 y siguientes, podrán, con esta finalidad, rescatar sus propias acciones. Las acciones deberán ser adjudicadas o las opciones deberán ser concedidas en el plazo de un año a partir de su adquisición.
Artículo L.225-209 (Ley nº 2003-7 de 3 de enero de 2003 art. 50 II Diario Oficial de 4 de enero de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 art. 23, art. 51 IX Diario Oficial de 26 de junio de 2004) (Ley nº 2004-1484 de 30 de diciembre de 2004 art. 83 I b Ley de finanzas para 2005 Diario Oficial de 31 de diciembre de 2004) (Ley nº 2005-842 de 26 de julio de 2005 art. 27 Diario Oficial de 27 de julio de 2005)
La junta general de una sociedad cuyas acciones estén admitidas a negociación en un mercado regulado podrá autorizar al consejo de administración o al directorio, según corresponda, la compra de un número de acciones que representen hasta un 10% del capital de la sociedad. La junta general definirá los fines y las condiciones de la operación, así como su límite máximo. Esta autorización no podrá ser concedida para un periodo superior a los dieciocho meses. Se informará al comité de empresa sobre la resolución adoptada por la junta general.
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CÓDIGO DE COMERCIO Un informe especial informará anualmente a la junta general sobre la realización de operaciones de compra de
acciones que hubiera autorizado y precisará, para cada uno de los fines mencionados, el número y precio de las acciones adquiridas, el volumen de acciones destinadas a dichos fines y las eventuales reasignaciones a otros fines del que hubieran sido objeto.
El consejo de administración podrá delegar en el director general o, de común acuerdo con este último, en uno o varios directores generales delegados, las competencias necesarias para realizar esta operación. El directorio podrá delegar en su presidente o, de común acuerdo con este último, en uno o varios de sus miembros, las competencias necesarias para realizarla. Las personas designadas deberán rendir cuentas ante el consejo de administración o el directorio sobre la utilización que hayan hecho de estas competencias, con arreglo a las condiciones establecidas por los mismos.
La adquisición, la cesión o la transmisión de estas acciones podrá efectuarse por todos los medios. Estas acciones podrán ser anuladas hasta un límite del 10% del capital de la sociedad en periodos de veinticuatro meses. La sociedad informará cada mes al Consejo de mercados financieros, de las compras, cesiones, transmisiones y anulaciones así realizadas. El Consejo de mercados financieros dará a conocer públicamente esta información.
Las sociedades que permitan a sus trabajadores participar en los resultados de la empresa mediante la adjudicación de sus propias acciones, las que adjudiquen sus acciones en las condiciones previstas en los artículos L.225-197-1 a L.225-197-3 así como las que deseen conceder opciones de compra de acciones a sus trabajadores podrán utilizar con este fin todo o parte de las acciones adquiridas en las condiciones previstas anteriormente. Podrán igualmente proponer la adquisición de sus propias acciones en las condiciones previstas por el punto II del artículo L.225-196 y por los artículos L.443-1 y siguientes del Código de Trabajo.
El número de acciones adquiridas por la sociedad para su conservación y su ulterior pago o canje en el marco de una operación de fusión, de escisión o de aportación no podrá exceder del 5% de su capitaL.Estas disposiciones serán de aplicación a los programas de rescate sometidos a la aprobación de las juntas generales que se celebren a partir del 1 de enero de 2006.
En caso de anulación de las acciones adquiridas, se autorizará o decidirá la reducción de capital por la junta general extraordinaria quien podrá delegar en el consejo de administración o el directorio, según el caso, todas las competencias necesarias para realizarla. Se presentará a los accionistas de la sociedad un informe especial realizado por los auditores de cuentas sobre la operación prevista, en un plazo fijado por decreto adoptado en Conseil d'Etat.
Artículo L225-210 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
La sociedad no podrá poseer, de forma directa o por mediación de una persona que actúe en su propio nombre pero por cuenta de la sociedad, más del 10% del total de sus propias acciones, ni más del 10% de una categoría determinada. Estas acciones deberán tener forma nominativa y estar totalmente desembolsadas en el momento de su adquisición. Si no lo estuvieran, los miembros del consejo de administración o del directorio, según el caso, estarán obligados a desembolsar las acciones, en las condiciones previstas en el artículo L.225-251 y en el párrafo primero del artículo L.225-256.
La adquisición de acciones de la sociedad no podrá tener por efecto la reducción de los fondos propios hasta un importe inferior al del capital aumentado con las reservas no distribuibles.
La sociedad deberá disponer de reservas, además de la reserva legal, por un importe al menos igual al valor del conjunto de las acciones que posea.
Las acciones poseídas por la sociedad no darán lugar a dividendos y estarán privadas del derecho de voto. En caso de ampliación de capital de acciones por suscripción dineraria, la sociedad no podrá ejercer por sí misma
el derecho de suscripción preferente. La junta general podrá decidir no tener en cuenta estas acciones para la determinación de los derechos de suscripción preferentes vinculados a las otras acciones. Si no existen tales derechos vinculados a las acciones poseídas por la sociedad deberán ser, antes del cierre del plazo de suscripción, o bien vendidas en bolsa, o bien distribuidas entre los accionistas proporcionalmente a los derechos que tenga cada uno.
Artículo L225-211 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
La sociedad o la persona encargada del servicio de los títulos deberá llevar registros de las compras y de las ventas efectuadas, en aplicación de los artículos L.225-208 y L225-209, en las condiciones determinadas por decreto adoptado en Conseil d'Etat.
El consejo de administración o el directorio, según el caso, deberá indicar, en el informe previsto en el artículo L.225-100, el número de las acciones compradas y vendidas en el transcurso del ejercicio en aplicación de los artículos 225-208 y L.225-209, la cotización media de las compras y de las ventas, el importe de los gastos de negociación, el número de acciones inscritas a nombre de la sociedad al cierre del ejercicio y su valor de compra estimado, así como su valor nominal, las causas de las adquisiciones efectuadas y la fracción del capital que representan.
Artículo L225-212 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 I 1°, V 1° Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Las sociedades deberán declarar a la Autoridad de Mercados Financieros las operaciones que prevean efectuar en aplicación de las disposiciones del artículo L.225-209. Darán cuenta a la Autoridad de Mercados Financieros de las adquisiciones que hayan efectuado.
La Autoridad de Mercados Financieros podrá solicitarles todas las explicaciones que considere necesarias al
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CÓDIGO DE COMERCIO respecto.
Si no se cumplieran estas demandas o si constatara que estas transacciones infringen las disposiciones del artículo L.225-209, la Autoridad de Mercados Financieros podrá tomar todas las medidas necesarias para impedir la ejecución de las órdenes que estas sociedades transmitan directa o indirectamente.
Nota: Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 V 1º y 2º: 1º Las referencias a la Comisión de Operaciones Bursátiles y al Consejo de disciplina de la gestión financiera serán
sustituidas por la referencia a la Autoridad de Mercados Financieros; 2° Las referencias a los reglamentos de la Comisión de Operaciones Bursátiles y al reglamento general del
Consejo de Mercados Financieros de disciplina de la gestión financiera serán sustituidas por la referencia al reglamento general de la Autoridad de Mercados Financieros.
Artículo L225-213 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Las disposiciones de los artículos L.225-206 y L.225-209 no serán aplicables a las acciones íntegramente desembolsadas, adquiridas como consecuencia de una transmisión de patrimonio a título universal o por causa de una resolución judicial.
Sin embargo, las acciones deberán ser cedidas en un plazo de dos años contados desde la fecha de adquisición cuando la sociedad posea más del 10% de su capital. Tras la finalización de este plazo, deberán ser anuladas.
Artículo L225-214 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Las acciones que se posean contraviniendo los artículos L.225-206 a L.225-210 deberán ser cedidas en un plazo de un año a contar desde la fecha de su suscripción o de su adquisición. Tras la finalización de este plazo, deberán ser anuladas.
Artículo L225-215 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Estará prohibida la aceptación en garantía por parte de la sociedad de sus propias acciones, bien directamente o bien por mediación de una persona que actúe en su propio nombre, pero a cuenta de la sociedad.
Las acciones aceptadas en prenda por la sociedad deberán ser restituidas a su propietario en el plazo de un año. La restitución podrá realizarse en un plazo de dos años si la transmisión de la garantía a la sociedad proviene de una transmisión de patrimonio a título universal o de una resolución judicial. En su defecto, el contrato de la constitución de garantía será nulo de pleno derecho.
La prohibición prevista en el presente artículo no se aplicará a las operaciones corrientes que realicen los establecimientos de crédito.
Artículo L225-216 (Ley nº 2001-152 de 19 de febrero de 2001 Artículo 29 3° Diario Oficial de 20 de febrero de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Una sociedad no podrá adelantar sus fondos, conceder préstamos o conceder garantías a cambio de la suscripción o la compra de sus propias acciones por parte de un tercero.
Las disposiciones del presente artículo no se aplicarán ni a las operaciones corrientes de los establecimientos de crédito ni a las operaciones efectuadas para la adquisición por parte de los empleados de acciones de la sociedad, de una de sus filiales o de una sociedad incluida en el marco de un plan de ahorro de grupo previsto en el artículo L. 444-3 del Código de Trabajo.
Artículo L225-217 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 IX Diario Oficial de 26 de junio de 2004)
Los artículos L. 225-206 a L. 225-216 serán aplicables a los certificados de inversión.
Sección V Del control de las sociedades anónimas Artículos L225-218 a
L225-242
Artículo L225-218 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 104 I Diario Oficial de 2 de agosto de 2003) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 104 I Diario Oficial de 2 de agosto de 2003)
El control será ejercido en cada sociedad por uno o varios auditores de cuentas.
Artículo L225-227 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 116 Diario Oficial de 2 de agosto de 2003)
Serán nulos los acuerdos tomados sin que se haya producido una designación válida de auditores de cuentas o tras el e examen del informe de un auditor de cuentas nombrado o mantenido en sus funciones contraviniendo las disposiciones de los artículos L.225-1 y L.225-224. El procedimiento de nulidad no surtirá efecto si estos acuerdos fueran confirmados expresamente por una junta general tras examinar un informe elaborado por auditores designados válidamente.
Artículo L225-228
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CÓDIGO DE COMERCIO (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 105 Diario Oficial de 2 de agosto de 2003)
Los auditores de cuentas serán propuestos para ser nombrados por la junta general mediante un proyecto de resolución que emane del consejo de administración, del consejo de supervisión o, en las condiciones definidas por la Sección 3 del presente capítulo, de los accionistas. Cuando la sociedad haga un llamamiento público al ahorro, el consejo de administración escogerá a los auditores de cuentas que prevea proponer, sin que tomen parte en la votación el director general ni el director general delegado.
Cuando el auditor de cuentas haya verificado, en el transcurso de los dos últimos ejercicios, las operaciones de aportación o de fusión de la sociedad o de las sociedades que ésta controla en el sentido de los puntos I y II del artículo L. 233-16, esta verificación deberá ser mencionada en el proyecto de resolución mencionado en el párrafo anterior.
Fuera de los casos previstos en los artículos L.225-7 y L.225-16, los auditores de cuentas serán designados por la junta general ordinaria.
La junta general ordinaria designará a uno o varios auditores de cuentas suplentes, convocados para sustituir a los titulares en caso de negarse éstos, o por impedimento, dimisión o fallecimiento. Las funciones del auditor de cuentas suplente designado para sustituir al titular finalizarán con la expiración del mandato confiado a éste último, a no ser que el impedimento sólo revista un carácter temporal. En este último caso, cuando cese el impedimento, el titular retomará sus funciones tras la siguiente junta general que apruebe las cuentas.
Las sociedades obligadas a publicar las cuentas consolidadas en aplicación de las disposiciones del presente libro estarán obligadas a designar al menos dos auditores de cuentas.
Los auditores de cuentas procederán en conjunto a un examen contradictorio de las condiciones y procedimientos de elaboración de las cuentas, según las prescripciones enunciadas por una norma de ejercicio profesional establecida de conformidad con el apartado sexto del artículo L. 821-1. Los principios de repartición de las diligencias que deberán ser aplicados por los auditores de cuentas también serán determinados por una norma de ejercicio profesional.
Artículo L225-229 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 107 Diario Oficial de 2 de agosto de 2003)
Los auditores de cuentas serán nombrados por un periodo de seis ejercicios. Pondrán término a sus funciones tras la reunión de la junta general ordinaria que decida sobre las cuentas del sexto ejercicio.
El auditor de cuentas nombrado por la junta para sustituir a otro sólo permanecerá en funciones hasta la expiración del mandato de su predecesor.
Si la junta omitiese realizar la elección de un auditor, todo accionista podrá solicitar judicialmente la designación de un auditor de cuentas, citando debidamente al presidente del consejo de administración o del directorio. El mandato así conferido finalizará cuando se haya procedido por parte de la junta general al nombramiento del o de los auditores.
Cuando una sociedad de auditores de cuentas fuera absorbida por otra sociedad de auditores de cuentas, la sociedad absorbente deberá hacerse cargo del mandato confiado a la sociedad absorbida hasta la fecha de su expiración.
No obstante, por excepción a lo establecido en el primer párrafo, la junta general de la sociedad controlada, en la primera reunión que siga a la absorción, podrá decidir sobre el mantenimiento del mandato, tras haber oído al auditor de cuentas.
Artículo L225-230 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 114 1° Diario Oficial de 16 de mayo de 2001)
Uno o varios accionistas que representen al menos un 5% del capital social, el comité de empresa, el ministerio público y, en las sociedades que hagan llamamiento público al ahorro, la Comisión de Operaciones Bursátiles, podrán, en el plazo y en las condiciones determinadas por decreto adoptado en Conseil d'Etat, solicitar judicialmente la destitución por motivo justificado de uno o varios auditores de cuentas designados por la junta general.
Esta petición podrá ser igualmente formulada por una asociación que reúna las condiciones fijadas en el artículo L.225-120.
Si se admite la petición, el juez designará a un nuevo auditor de cuentas. Se mantendrá en su puesto hasta la entrada en funciones del auditor de cuentas designado por la junta general.
Nota: Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 V 1º y 2º: 1º Las referencias a la Comisión de Operaciones Bursátiles, al Consejo de Mercados Financieros y al Consejo de
disciplina de la gestión financiera serán sustituidas por la referencia a la Autoridad de Mercados Financieros; 2° Las referencias a los reglamentos de la Comisión de Operaciones Bursátiles y al reglamento general del
Consejo de Mercados Financieros de disciplina de la gestión financiera serán sustituidas por la referencia al reglamento general de la Autoridad de Mercados Financieros.
Artículo L225-231 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 114 3° Diario Oficial de 16 de mayo de 2001)
Una asociación que reúna las condiciones fijadas en el artículo L.225-120, así como uno o varios accionistas que representen al menos un 5% del capital social, sea individualmente, sea asociándose en la forma que sea, podrán formular por escrito al presidente del consejo de administración o al directorio preguntas sobre una o varias operaciones de gestión de la sociedad, así como, llegado el caso, de las sociedades que ésta controle conforme al artículo L.233-3. En este último caso, la solicitud será evaluada bajo la óptica del interés del grupo. La respuesta tendrá que ser presentada a los auditores de cuentas.
A falta de respuesta en el plazo de un mes o si la respuesta presentada no fuese satisfactoria, estos accionistas podrán solicitar en procedimiento sumario la designación de uno o varios peritos encargados de presentar un informe
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CÓDIGO DE COMERCIO sobre una o varias operaciones de gestión.
El Ministerio Público, el comité de empresa y, en las empresas que hagan llamamiento público al ahorro, la Comisión de Operaciones Bursátiles también podrá solicitar en procedimiento sumario la designación de uno o varios peritos encargados de presentar un informe sobre una o varias operaciones de gestión.
Si se admite la solicitud, la resolución judicial determinará la extensión de la tarea y de las competencias de los expertos. Podrá fijar los honorarios a cargo de la sociedad.
El informe será dirigido al demandante, al ministerio público, al comité de empresa, al auditor de cuentas y, según el caso, al consejo de administración o al directorio y al consejo de supervisión así como, en las sociedades que hacen llamamiento público al ahorro, a la Comisión de Operaciones Bursátiles. Así mismo, el informe deberá ir anexo al emitido por los auditores de cuentas para ser presentado en la siguiente junta general y recibir la misma publicidad.
Nota: Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 V 1º y 2º: 1º Las referencias a la Comisión de Operaciones Bursátiles, al Consejo de Mercados Financieros y al Consejo de
disciplina de la gestión financiera serán sustituidas por la referencia a la Autoridad de Mercados Financieros; 2° Las referencias a los reglamentos de la Comisión de Operaciones Bursátiles y al reglamento general del
Consejo de Mercados Financieros de disciplina de la gestión financiera serán sustituidas por la referencia al reglamento general de la Autoridad de Mercados Financieros.
Artículo L225-232 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 114 1° Diario Oficial de 16 de mayo de 2001)
Uno o varios accionistas que representen al menos una décima parte del capital social o una asociación que reúna las condiciones definidas en el artículo L.225-120 podrán, dos veces en cada ejercicio, formular por escrito preguntas al presidente del consejo de administración o al directorio sobre cualquier hecho que pueda comprometer la continuidad de la actividad económica. La respuesta será presentada a los auditores de cuentas.
Artículo L225-233 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 114 1° Diario Oficial de 16 de mayo de 2001)
En caso de ausencia o de impedimento, los auditores de cuentas podrán ser relevados en sus funciones antes de la expiración normal de éstas, a petición del consejo de administración, del directorio, del comité de empresa, de uno o varios accionistas que representen al menos un 5% del capital social o de la junta general, por resolución judicial, en las condiciones definidas por decreto adoptado en Conseil d'Etat.
Esta solicitud podrá igualmente ser presentada por el ministerio público y, en las sociedades que hacen llamamiento público al ahorro, por la Comisión de operaciones bursátiles. Podrá también ser formulada por una asociación que responda a las condiciones establecidas en el artículo L.225-120.
Nota: Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 V 1º y 2º: 1º Las referencias a la Comisión de Operaciones Bursátiles, al Consejo de Mercados Financieros y al Consejo de
disciplina de la gestión financiera serán sustituidas por la referencia a la Autoridad de Mercados Financieros; 2° Las referencias a los reglamentos de la Comisión de Operaciones Bursátiles y al reglamento general del
Consejo de Mercados Financieros de disciplina de la gestión financiera serán sustituidas por la referencia al reglamento general de la Autoridad de Mercados Financieros.
Artículo L225-234 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 106 Diario Oficial de 2 de agosto de 2003)
Cuando, tras la expiración de las funciones de un auditor de cuentas, se propusiera a la junta que se le renueve en su puesto, el auditor de cuentas - si lo solicita - deberá ser oído por la junta general, sin perjuicio de las disposiciones del artículo L. 822-14.
Artículo L.225-235 (Ley nº 2003-706 de 1 de agosto de 2003 art. 112, art. 120 Diario Oficial de 2 de agosto de 2003) (Ley nº 2005-842 de 26 de julio de 2005 art. 9 II Diario Oficial de 27 de julio de 2005) (Disposición nº 2005-1126 de 8 de septiembre de 2005 art. 20 III Diario Oficial de 9 de septiembre de 2005)
Los auditores de cuentas presentarán, en un informe que añadirán al informe mencionado en el segundo párrafo del artículo L.225-100, sus observaciones sobre el informe mencionado, según el caso, en el artículo L.225-37 o en el artículo L.225-68, para los procedimientos de control interno que sean relativos a la elaboración y al tratamiento de la información contable y financiera.
Artículo L225-236 En cualquier momento del ejercicio, los auditores de cuentas, en conjunto o separadamente, realizarán las
comprobaciones y todos los controles que juzguen oportunos y podrán exigir que se les proporcionen de inmediato todos los documentos que consideren útiles para el ejercicio de su función y, en particular, todos los contratos, libros, documentos contables y registros de actas.
Para realizar estos controles, los auditores de cuentas podrán, bajo su responsabilidad, solicitar la ayuda o la representación de expertos o colaboradores de su elección, cuyos nombres deberán ser indicados a la sociedad. Estos tendrán los mismos derechos en la investigación que los auditores.
Las investigaciones previstas en el presente artículo podrán ser realizadas tanto en la sociedad como en las sociedades matrices o filiales en el sentido del artículo L. 233-1.
Estas investigaciones podrán ser realizadas también en aplicación del párrafo segundo del artículo L.225-235 en el conjunto de empresas incluidas en la consolidación.
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CÓDIGO DE COMERCIO Los auditores de cuentas podrán igualmente recabar informaciones útiles en el ejercicio de su función entre
terceros que hayan concertado operaciones por cuenta de la sociedad. Sin embargo, este derecho de información no podrá extenderse al acceso a documentos, contratos ni comprobantes de cualquier tipo en posesión de terceros, a menos que tengan una autorización judicial para ello. El secreto profesional no podrá ser utilizado frente a los auditores de cuentas, salvo por el personal no juzgador de la administración de justicia.
Artículo L225-237 Los auditores de cuentas presentarán al consejo de administración o al directorio y al consejo de supervisión,
según el caso: 1º Los controles y comprobaciones que hayan efectuado así como las diferentes indagaciones realizadas; 2º Las partidas del balance y otros documentos contables en los que consideren que es necesario aportar algunas
modificaciones, haciendo cualquier tipo de observación útil sobre los métodos de evaluación utilizados para la realización de dichos documentos;
3º Las irregularidades e inexactitudes que hayan descubierto; 4º Las conclusiones a las que hayan llegado tras las observaciones y rectificaciones anteriores sobre los resultados
del ejercicio comparados con los del ejercicio anterior
Artículo L225-238 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 108 Diario Oficial de 2 de agosto de 2003)
Los auditores de cuentas serán convocados a todas las reuniones del consejo de administración o del directorio y del consejo de supervisión en que se examinen o presenten las cuentas del ejercicio transcurrido, así como a todas las juntas de accionistas.
Artículo L225-239 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 115 Diario Oficial de 2 de agosto de 2003)
Los honorarios de los auditores de cuentas correrán a cargo de la sociedad. Serán fijados de acuerdo con las modalidades establecidas por decreto adoptado en Conseil d'Etat.
La cámara regional de disciplina y, en segunda instancia o apelación, la cámara nacional de disciplina serán competentes para conocer de cualquier litigio surgido en relación con su remuneración.
Nota: Ley n° 2003-706 de 1 de agosto de 2003 Artículo 115: En todas las disposiciones legislativas y reglamentarias, las referencias a la Comisión Nacional de Inscripción de los auditores de cuentas y a la Cámara Nacional de Disciplina serán sustituidas por la referencia al Alto Consejo de Auditoría de Cuentas.
Artículo L225-240 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 112 Diario Oficial de 2 de agosto de 2003)
Los auditores de cuentas señalarán, en la siguiente junta general, las irregularidades e inexactitudes que hayan detectado a lo largo del cumplimiento de su labor.
Además, pondrán de manifiesto al Fiscal de la República los hechos delictivos de los que hayan tenido conocimiento, sin que su responsabilidad pueda verse comprometida por esta declaración.
Artículo L225-241 Los auditores de cuentas serán responsables, tanto frente a la sociedad como frente a terceros, de las
consecuencias perjudiciales, de las faltas o negligencias que hayan cometido en el ejercicio de sus funciones. Sin embargo, su responsabilidad no podrá verse comprometida por proceder a informaciones o divulgaciones de hechos en ejercicio de su misión, definida en los artículos L.234-1 y L.234-2.
No serán civilmente responsables de las infracciones cometidas por los administradores o los miembros del directorio, según el caso, salvo si, habiendo tenido conocimiento de ellas, no las hubieran puesto de manifiesto en su informe a la junta general.
Artículo L225-242 Las acciones de responsabilidad civil contra los auditores de cuentas prescribirán en las condiciones previstas en
el artículo L.225-254.
Sección VI De la transformación de las sociedades anónimas Artículos L225-243 a
L222-245-1
Artículo L225-243 Toda sociedad anónima podrá transformarse en sociedad de cualquier otro tipo si, en el momento de la
transformación, tuviera al menos dos años de existencia y si hubiera realizado y obtenido la aprobación por parte de los accionistas del balance de sus dos primeros ejercicios.
Artículo L225-244 La decisión de transformación será tomada tras el informe de los auditores de cuentas de la sociedad. El informe
certificará que los fondos propios son al menos iguales al capital social. La transformación será sometida, cuando proceda, a la aprobación de las juntas de obligacionistas y la junta de
poseedores de participaciones beneficiarias o de fundador. La decisión de transformación deberá ser sometida a publicidad, cuyas modalidades serán definidas por decreto
adoptado en Conseil d'Etat.
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CÓDIGO DE COMERCIO Artículo L225-245
Su transformación en sociedad colectiva precisará del acuerdo de todos los socios. En ese caso, no se exigirán los requisitos previstos en el artículo L.225-243 y en el párrafo primero del artículo L.225-244.
La transformación en sociedad comanditaria simple o por acciones será decidida en las condiciones previstas para la modificación de los estatutos y con el acuerdo de todos los socios que acepten ser socios colectivos.
La transformación en sociedad de responsabilidad limitada se decidirá en las condiciones previstas para la modificación de los estatutos de este tipo de sociedades.
Artículo L.222-245-1 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 II Diario Oficial de 27 de julio de 2005)
En caso de transformación de una sociedad anónima en sociedad europea, no será de aplicación el párrafo primero del artículo L.225-244.
La sociedad elaborará un proyecto de transformación de la sociedad en sociedad europea. Este proyecto será depositado en la secretaría del Tribunal en cuya circunscripción esté registrada la sociedad y será objeto de publicidad en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Uno o varios auditores para la transformación, nombrados por resolución judicial, elaborarán bajo su responsabilidad un informe destinado a los accionistas de la sociedad en transformación, en el que certifican que los fondos propios son al menos iguales al capital sociaL.Los mismos serán sometidos a las incompatibilidades previstas en el artículo L.822-11.
La transformación en sociedad europea se decidirá con arreglo a lo dispuesto en los artículos L.225-96 y L.225-99.
Sección VII De la disolución de las sociedades anónimas Artículos L225-246 a
L225-248
Artículo L225-246 La disolución anticipada de la sociedad será decidida por la junta general extraordinaria.
Artículo L225-247 El Tribunal de commerce podrá, a petición de cualquier interesado, acordar la disolución de la sociedad, si el
número de accionistas es menor de siete durante más de un año. Podrá conceder a la sociedad un plazo máximo de seis meses para regularizar su situación. No podrá acordar la
disolución si antes de que resolviera sobre el fondo se produjera esta regularización.
Artículo L225-248 Si a causa de las pérdidas constatadas en los documentos contables, los fondos propios de la sociedad llegaran a
ser inferiores a la mitad del capital social, el consejo de administración o el directorio, según el caso, estará obligado en los cuatro meses siguientes a la aprobación de las cuentas en que se hayan detectado estas pérdidas, a convocar la junta general extraordinaria para decidir si procederá la disolución anticipada de la sociedad.
Si se decidiera no disolver la sociedad, ésta estará obligada, como máximo en el momento del cierre del segundo ejercicio que siga a aquél en el que se hayan constatado las pérdidas y ateniéndose a las disposiciones del artículo L.224-2, a reducir su capital por un importe al menos igual al de las pérdidas que no hayan podido ser imputadas a las reservas, si, en ese plazo, los fondos propios no han sido reconstituidos hasta el valor al menos igual a la mitad del capital social.
En los dos casos, la resolución adoptada por la junta general será publicada según las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Si no hubiera reunión de la junta general, o en el caso de que esta junta no hubiera podido deliberar de modo válido en última convocatoria, todo interesado podrá solicitar judicialmente la disolución de la sociedad. Lo mismo ocurrirá si las disposiciones del párrafo segundo anterior no hubieran sido aplicadas. En estos casos, el tribunal podrá conceder a la sociedad un plazo máximo de seis meses para regularizar su situación. No podrá decretar la disolución si se produjera dicha regularización antes de la fecha en la que el tribunal resuelva sobre el fondo.
Las disposiciones del presente artículo no serán aplicables a las sociedades que se encuentren en situación de suspensión de pagos ordenada judicialmente, o que se beneficien de un plan de continuidad.
Sección VIII De la responsabilidad civil Artículos L225-249 a
L225-257
Artículo L225-249 Los fundadores de la sociedad a los que fuera imputable la nulidad y los administradores en funciones en el
momento en que ésta se produjera podrán ser declarados solidariamente responsables del perjuicio derivado de la anulación de la sociedad que afectara a los accionistas o a terceros.
Se podrá declarar solidariamente responsables a aquellos accionistas cuyas aportaciones o beneficios no hayan sido verificados y aprobados.
Artículo L225-250 La acción de resarcimiento por responsabilidad civil basada en la anulación de la sociedad prescribirá en las
condiciones previstas en el párrafo primero del artículo L.235-13.
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CÓDIGO DE COMERCIO Artículo L225-251 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 107 6° y 7º Diario Oficial de 16 de mayo de 2001)
Los administradores y el director general serán responsables individual o solidariamente según el caso, frente a la sociedad o frente a terceros, de las infracciones a las disposiciones legislativas o reglamentarias aplicables a las sociedades anónimas, de las contravenciones a los estatutos, o de las faltas cometidas en su gestión.
Si varios administradores o varios administradores y el director general hubieran colaborado en los mismos hechos, el tribunal determinará la parte contributiva de cada uno en la reparación del daño.
Artículo L225-252 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 107 8° Diario Oficial de 16 de mayo de 2001)
Además de la acción de reparación del perjuicio sufrido personalmente, los accionistas podrán, bien individualmente, bien por medio de una asociación que responda a las condiciones establecidas en el artículo L.225-120 bien agrupándose con las condiciones determinadas por decreto adoptado en Conseil d'Etat, entablar una acción social de resarcimiento por responsabilidad civil contra los administradores o el director general. Los demandantes estarán habilitados para reclamar la reparación íntegra del daño causado a la sociedad, a la cual se le abonará, en su caso, una indemnización por daños y perjuicios.
Artículo L225-253 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 107 9° Diario Oficial de 16 de mayo de 2001)
Se tendrá por no puesta cualquier cláusula de los estatutos que tenga por efecto subordinar el ejercicio de la acción social al acuerdo o a la autorización previa de la junta general, o que comporte la renuncia por adelantado al ejercicio de tal acción.
Ninguna decisión de la junta general podrá tener como efecto extinguir una acción de resarcimiento por responsabilidad civil contra los administradores o contra el director general por una falta cometida en el cumplimiento de su mandato.
Artículo L225-254 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 107 10° Diario Oficial de 16 de mayo de 2001)
La acción de resarcimiento contra los administradores o el director general, tanto social como individual, prescribirá a los tres años, a contar desde la fecha en que tuviera lugar el daño, o, si hubiese sido ocultado, a partir de su descubrimiento. Sin embargo, cuando el hecho hubiera sido calificado como delito la acción prescribirá a los diez años.
Artículo L225-255 En caso de apertura de un procedimiento de suspensión de pagos o de liquidación judicial en aplicación de las
disposiciones del título II del libro VI relativas a la suspensión de pagos y a la liquidación judicial de las empresas, las personas citadas por estas disposiciones podrán ser consideradas responsables del estado del pasivo social y ser sometidas a las privaciones de derechos e inhabilitaciones, en las condiciones previstas por éstas.
Artículo L225-256 Cuando la sociedad esté sujeta a las disposiciones de los artículos L.225-57 a L.225-93, los miembros del
directorio serán sometidos a la misma responsabilidad que los administradores en las condiciones previstas en los artículos L.225-249 a L.225-255.
En caso de apertura de un procedimiento de suspensión de pagos o de liquidación judicial en aplicación de las disposiciones del título II del libro VI relativas a la suspensión de pagos y a la liquidación judicial de las empresas, las personas citadas por estas disposiciones podrán ser consideradas responsables del estado del pasivo social y ser sometidas a las privaciones de derechos e inhabilitaciones, en las condiciones previstas por éstas.
Artículo L225-257 Los miembros del consejo de supervisión serán responsables de las faltas personales cometidas en la ejecución de
su mandato. No serán considerados responsables, en razón de los actos de gestión ni de su resultado. Podrán ser declarados civilmente responsables de los delitos cometidos por los miembros del directorio, si, habiendo tenido conocimiento de ellos, no los hubieran dado a conocer a la junta general.
Serán aplicables las disposiciones de los artículos L.225-253 y L.225-254.
Sección IX De las sociedades anónimas laborales Artículos L225-258 a
L225-270
Artículo L225-258 Podrá ser establecido por los estatutos de cualquier sociedad anónima que la sociedad sea "laboral". Las sociedades cuyos estatutos no contengan esta estipulación podrán transformarse en sociedades con
participación laboral, procediendo conforme lo establecido en el artículo L.225-96. Las sociedades laborales estarán sometidas, independientemente de las reglas generales aplicables a las
sociedades anónimas, a las disposiciones de la presente sección.
Artículo L225-259 Si la sociedad hace uso de su facultad para emitir acciones laborales, esta circunstancia deberá ser mencionada
en todas sus actas y documentos destinados a terceros añadiendo las palabras "laboral".
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CÓDIGO DE COMERCIO Artículo L225-260
Las acciones de la sociedad se compondrán: 1º De acciones o partes de acciones de capital; 2º De acciones denominadas "acciones de trabajo"
Artículo L225-261 Las acciones de trabajo serán propiedad colectiva del personal asalariado (operarios y empleados) constituido en
sociedad mercantil cooperativa de mano de obra. Esta sociedad de mano de obra incluirá obligatoria y exclusivamente a todos los empleados vinculados a la empresa desde al menos un año antes y que sean mayores de dieciocho años. La pérdida de la condición de trabajador asalariado privará al participante, sin derecho a indemnización, de todos sus derechos en la cooperativa de mano de obra. La liquidación de los derechos que hubieran sido adquiridos en la empresa por el interesado antes de su marcha, en el transcurso del último ejercicio se hará teniendo en cuenta el período transcurrido en dicho ejercicio y las disposiciones del artículo L.225-269.
Cuando una sociedad se constituya, desde su inicio, bajo la forma de sociedad anónima laboral, los estatutos de la sociedad anónima deberán prever la dotación en reserva, hasta el final de año, de las acciones de trabajo adjudicadas al colectivo de trabajadores. Al finalizar este plazo, las acciones serán devueltas a la cooperativa de mano de obra legalmente constituida.
Los dividendos atribuidos a los operarios y empleados que forman parte de la cooperativa obrera serán repartidos entre ellos siguiendo las reglas establecidas por los estatutos de la sociedad laboral y de acuerdo con las decisiones de sus juntas generales. Sin embargo, los estatutos de la sociedad anónima deberán disponer que, con anterioridad a cualquier distribución de dividendos, se deduzca de los beneficios, en favor de los tenedores de acciones de capital, una cantidad que corresponda a la que produzca el capital abonado, según el interés fijado.
En ningún caso las acciones de trabajo podrán ser adjudicadas individualmente a los trabajadores de la sociedad, miembros de la cooperativa de mano de obra.
Artículo L225-262 Las acciones de trabajo serán nominativas, inscritas a nombre de la sociedad cooperativa de mano de obra,
intransferibles mientras exista la sociedad laboral.
Artículo L225-263 Los participantes en la sociedad cooperativa de mano de obra estarán representados en las juntas generales de la
sociedad anónima por mandatarios elegidos por estos participantes, reunidos en junta general de la cooperativa. Los mandatarios elegidos deberán ser escogidos entre los participantes. Los estatutos de la sociedad anónima
determinarán su número. El número de votos de los que dispongan estos mandatarios en cada junta general de la sociedad anónima, se
establecerá en función del número de votos de que dispongan los demás accionistas asistentes o representados, respetando la proporción entre las acciones de trabajo y las acciones de capital resultante de la aplicación de los estatutos de la sociedad. Se fijará al inicio de cada junta según las indicaciones de la lista de asistencia.
Los mandatarios asistentes compartirán igualmente entre ellos los votos que les sean atribuidos, los de más edad se beneficiarán de los votos restantes.
La junta general de la cooperativa de mano de obra se reunirá cada año en un plazo determinado por los estatutos y, en ausencia de disposiciones estatutarias a este respecto, en un plazo de cuatro meses tras la celebración de la junta general de la sociedad anónima.
Artículo L225-264 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Cada participante dispondrá, en la junta general de la cooperativa de mano de obra, de un voto. No obstante, los estatutos podrán atribuir varios votos a los participantes, en función de la cuantía de su salario,
estableciéndose como límite máximo un número de votos igual al número de veces que el salario anual del interesado - tal y como figura en las cuentas anuales aprobadas del ejercicio anterior - incluya la cifra del salario más bajo atribuido por la sociedad a los empleados de más de dieciocho años.
Los estatutos podrán prever que los participantes se distribuyan en colegios que agrupen cada uno de ellos una categoría del personal, eligiendo cada colegio a su o sus mandatarios y que el acuerdo de cada colegio, según las mayorías que determinen los estatutos, sea necesario para la modificación de los estatutos de la cooperativa y de otras decisiones enumeradas en éstos.
Artículo L225-265 Los acuerdos de la junta general de la cooperativa de mano de obra sólo serán válidos si, en primera convocatoria,
los dos tercios al menos de los participantes de la cooperativa estuvieran presentes o representados. Los estatutos establecerán el quórum requerido para la junta que se reúna en segunda convocatoria. A falta de disposiciones estatutarias, este quórum será de la mitad de los participantes de la cooperativa, asistentes o representados.
La junta general decidirá por mayoría de votos emitidos. En el caso en que se proceda a una votación, no se tendrán en cuenta los votos en blanco.
Sin embargo, para la modificación de los estatutos de la cooperativa y para otras decisiones enumeradas por los estatutos, el quórum no podrá ser inferior a la mitad de los participantes de la cooperativa. Además, estas mismas decisiones serán tomadas por mayoría de dos tercios de los votos emitidos. En el caso en que se proceda a una votación, no se tendrán en cuenta los votos en blanco.
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CÓDIGO DE COMERCIO Artículo L225-266
En caso de procedimiento judicial, los mandatarios elegidos en la última junta general designarán a uno o a varios de ellos para representar a los participantes. Si no se hubiera efectuado aún ninguna elección, o si ninguno de los mandatarios elegidos formara parte de la cooperativa de mano de obra, se procederá a la elección de mandatarios especiales en las formas y condiciones previstas en el párrafo primero del artículo L.225-263 y en los artículos L.225-264 y L.225-265.
Artículo L225-267 Sin embargo, las juntas generales de las sociedades anónimas laborales que deliberen sobre las modificaciones a
efectuar en los estatutos o sobre las propuestas de continuidad de la sociedad más allá del plazo fijado para su duración o de disolución antes de cumplirse este plazo no se constituirán válidamente y no podrán tomar acuerdos válidos en tanto no incluyan un número de accionistas que representen las tres cuartas partes del capital. Los estatutos podrán prever que esto se efectúe de otro modo.
En el caso en que una decisión de la junta general conllevara una modificación en los derechos vinculados a las acciones de trabajo, esta decisión no será definitiva en tanto que no haya sido ratificada por una junta general de la cooperativa de mano de obra.
Artículo L225-268 El consejo de administración de la sociedad anónima laboral incluye a uno o varios representantes de la sociedad
cooperativa de mano de obra. Estos representantes serán elegidos por la junta general de accionistas y escogidos entre los mandatarios que representen a la cooperativa en esa junta general. Su número será determinado por la relación que exista entre las acciones de trabajo y las acciones de capital. Serán nombrados por el mismo período que los otros administradores y serán al igual que ellos reelegibles. Sin embargo, su mandato finalizará si dejan de ser asalariados de la sociedad y, por consiguiente, miembros de la misma. Si el consejo de administración sólo estuviese compuesto por tres miembros, deberá incluir al menos un representante de dicha sociedad cooperativa.
Artículo L225-269 En caso de disolución, el activo social no será repartido entre los accionistas hasta la total amortización de las
acciones de capital. La parte representativa de las acciones de trabajo, según las decisiones tomadas por la junta general de la
cooperativa obrera convocada con este objeto, se repartirá entonces entre los participantes y antiguos participantes que cuenten al menos con diez años consecutivos de servicios en los distintos emplazamientos de la sociedad, o por lo menos un período de servicios ininterrumpidos igual a la mitad de la duración de la sociedad, y que la hayan dejado por una de las razones siguientes: jubilación voluntaria o de oficio con derecho a pensión, enfermedad o invalidez que conlleve la incapacidad para el empleo ocupado con anterioridad, despido motivado por la supresión del empleo o una reducción de plantilla.
Sin embargo, los antiguos participantes que reúnan las condiciones previstas en el párrafo anterior sólo figurarán en el reparto por una parte correspondiente a la duración de sus servicios reducida en una décima parte de su importe total por cada año transcurrido desde el cese de sus servicios.
La disolución de la sociedad anónima conllevará la disolución de la cooperativa de mano de obra.
Artículo L225-270 I. - Cuando una sociedad anónima laboral se encuentre en la situación citada en el artículo L.225-248, y no se
haya acordado su disolución, la junta general extraordinaria podrá decidir, en el plazo determinado en el párrafo segundo del citado artículo, una modificación de los estatutos de la sociedad que conllevará la pérdida de la forma de sociedad anónima laboral y, con ello, la disolución de la sociedad cooperativa de mano de obra, a pesar de las disposiciones del párrafo segundo del artículo L.225-267 y de cualquier disposición estatutaria en contra.
Sin embargo, la aplicación de esta decisión estará subordinada a la existencia de un convenio colectivo de empresa firmado con una o varias organizaciones sindicales de empleados representativos en el sentido del artículo L.132-2 del Código de Trabajo y que prevea la disolución de la sociedad cooperativa de mano de obra. La existencia de un convenio colectivo empresarial, que persiga el mismo fin y firmado en las mismas condiciones, con anterioridad a la entrada en vigor de la Ley nº 94-679 de 8 de agosto de 1994 que prevé diversas disposiciones de orden económica y financiera, responderá a las disposiciones del presente párrafo.
II. - Si la sociedad cooperativa de mano de obra fuera disuelta en aplicación de las disposiciones del punto I anterior, se concederá una indemnización a los participantes y antiguos participantes mencionados en el párrafo segundo del artículo L.225-269.
El importe de esta indemnización, determinado sobre todo en función de la naturaleza y el alcance particular de los derechos vinculados a las acciones de trabajo, será establecido por la junta general extraordinaria de los accionistas de la sociedad anónima, tras la consulta con los mandatarios de la sociedad cooperativa de mano de obra y en consideración del informe pericial de un experto independiente que será nombrado en las condiciones previstas por decreto adoptado en Conseil d'Etat.
III. - Por decisión de la junta general extraordinaria de los accionistas de la sociedad anónima, la indemnización podrá tener la forma de una adjudicación de acciones en beneficio exclusivo de los participantes y antiguos participantes mencionados en el párrafo segundo del artículo L.225-269.
Estas acciones podrán ser creadas por deducción de las primas y reservas disponibles. Por excepción a lo dispuesto en el artículo L.225-206, la sociedad anónima podrá igualmente adquirir sus propias acciones para adjudicarlas, en el plazo de un año a partir de su adquisición, a los participantes y antiguos participantes mencionados
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CÓDIGO DE COMERCIO en el párrafo segundo del artículo L.225-269.
Las acciones así adjudicadas no podrán ser cedidas hasta que transcurran tres años a contar desde la fecha de la disolución de la sociedad cooperativa de mano de obra.
A pesar de las disposiciones del párrafo anterior, la junta general extraordinaria de accionistas de la sociedad anónima podrá decidir confiar la gestión de estas acciones a un fondo de inversión colectiva de la empresa, regulado por las disposiciones del artículo 21 de la Ley nº 88-1201 de 23 de diciembre de 1988 relativa a los organismos de inversión colectiva en valores mobiliarios y que incluyan la creación de fondos comunes de créditos, que sea constituido especial y exclusivamente con este fin como plazo máximo el día de la atribución de las acciones. En ese caso, las partes del fondo y las acciones que constituyan su activo no podrán ser cedidas hasta que finalice el plazo mencionado en el párrafo anterior. El reglamento de este fondo será aprobado por medio de un convenio colectivo de trabajo.
IV. - Para la aplicación de las disposiciones previstas por el presente artículo, las decisiones tomadas por la junta general de accionistas de la sociedad anónima se impondrán de pleno derecho a todo accionista y a todo poseedor o titular de títulos obligacionistas o que den, inmediatamente o al término del plazo, acceso al capital.
V. - La indemnización prevista en el punto II será repartida entre sus derechohabientes, teniendo en cuenta la duración de sus servicios en la sociedad, la antigüedad adquirida en la cooperativa de mano de obra y su nivel de remuneración.
Tras la disolución de la sociedad cooperativa de mano de obra, y en un plazo de seis meses tras el acuerdo de la junta general extraordinaria de los accionistas de la sociedad anónima que determine el importe y la forma de la indemnización, este reparto será efectuado en conformidad con las decisiones tomadas por la junta general de la sociedad cooperativa a propuesta de sus mandatarios. Si no se produjese el reparto en ese plazo de seis meses, éste se efectuará por un mandatario liquidador designado por el presidente del Tribunal de commerce de la circunscripción del domicilio social de la sociedad.
Las disposiciones del párrafo tercero del artículo L.225-269 serán aplicables en el caso citado en el presente punto V. VI.
- La indemnización prevista en el punto II o, en su caso, el valor de las acciones adjudicadas por este concepto no tendrán el carácter de salario para la aplicación de la legislación laboral y de seguridad social. No serán retenidas para el cálculo de la base para determinar los impuestos, tasas y deducciones basados en los salarios o en las rentas, no obstante las disposiciones del artículo 94A del Código General de Impuestos.
CAPITULO VI De las sociedades comanditarias por acciones Artículos L226-1 a
L226-14
Artículo L226-1 La sociedad comanditaria por acciones, cuyo capital esté dividido en acciones, estará constituida por uno o varios
socios colectivos que posean la condición de comerciantes y que responderán indefinida y solidariamente de las deudas sociales, y por comanditarios, que tendrán la condición de accionistas y sólo soportarán las pérdidas hasta el importe de sus aportaciones. El número de socios comanditarios no podrá ser inferior a tres.
En la medida en que éstas sean compatibles con las disposiciones particulares previstas por el presente capítulo, las normas concernientes a las sociedades comanditarias simples y a las sociedades anónimas, exceptuando los artículos L.225-17 a L.225-93, serán de aplicación a las sociedades comanditarias por acciones.
Artículo L226-2 El o los primeros gerentes serán designados en los estatutos. Cumplirán con los requisitos formales de constitución
de los que se encargarán los fundadores en las sociedades anónimas en función de los artículos L.225-2 a L.225-16. A lo largo de la existencia de la sociedad, salvo cláusula en contrario en los estatutos, el o los gerentes serán
designados por la junta general ordinaria con el acuerdo de todos los socios colectivos. El gerente, socio o no, será revocado en las condiciones previstas por los estatutos. Además, el gerente será revocable por el Tribunal de commerce por causa legítima, a petición de cualquier socio o
de la sociedad. Cualquier cláusula en contrario se tendrá por no puesta.
Artículo L226-3 Los estatutos deberán prever para el ejercicio de las funciones de gerente un límite de edad que, a falta de
disposición expresa, será fijada en sesenta y cinco años. Todo nombramiento que vulnere las disposiciones previstas en el párrafo anterior será nulo. Cuando un gerente alcance el límite de edad, será considerado dimisionario de oficio.
Artículo L226-4 La junta general ordinaria designará, en las condiciones fijadas por los estatutos, un consejo de supervisión,
compuesto por al menos tres accionistas. Bajo pena de nulidad de su nombramiento, un socio colectivo no podrá ser miembro del consejo de supervisión.
Los accionistas que tengan la condición de socios colectivos no podrán participar en la designación de los miembros de este consejo.
A falta de disposición estatutaria sobre ello, serán aplicables las normas que regulen la designación y la duración del mandato de los administradores de sociedades anónimas.
Artículo L226-5
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CÓDIGO DE COMERCIO (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Los estatutos deberán prever para el ejercicio de las funciones de miembro del consejo de supervisión un límite de edad que se aplicará, bien al conjunto de los miembros del consejo de supervisión, o bien a un porcentaje determinado de ellos.
Si no hubiera disposición expresa en los estatutos, el número de miembros del consejo de supervisión que hayan alcanzado la edad de setenta años no podrá ser superior a un tercio de los miembros del consejo de supervisión en funciones.
Todo nombramiento que vulnere las disposiciones previstas en el párrafo anterior será nulo. Si no existiese una disposición expresa en los estatutos que prevea otro procedimiento, cuando el límite estatutario
o legal determinado para la edad de los administradores se haya sobrepasado, el administrador de más edad será considerado dimisionario de oficio.
Artículo L226-6 La junta general ordinaria designará a uno o a varios auditores de cuentas.
Artículo L226-7 El gerente será investido de las más amplias facultades para actuar en cualquier circunstancia en nombre de la
sociedad. En las relaciones con terceros, la sociedad será responsable incluso por los actos del gerente que no estén
relacionados con el objeto social, a menos que pruebe que el tercero sabía que el acto sobrepasaba este objeto o que no podía ignorarlo dadas las circunstancias, sin que la simple publicación de los estatutos baste para constituir dicha prueba.
Las cláusulas estatutarias que limiten las competencias del gerente derivadas del presente artículo no serán oponibles frente a terceros.
En caso de pluralidad de gerentes, éstos detentarán por separado las competencias previstas en el presente artículo. La oposición presentada por un gerente frente a los actos de otro gerente no tendrán efecto frente a terceros, a menos que se demuestre que éstos tuvieron conocimiento de ella.
Sin perjuicio de las disposiciones del presente capítulo, el gerente tendrá las mismas obligaciones que el consejo de administración de una sociedad anónima.
Artículo L226-8 Sólo la junta general ordinaria podrá abonar al gerente otra remuneración distinta a la prevista por los estatutos.
Salvo cláusula en contrario, esto sólo será posible si los socios colectivos otorgasen su aprobación por unanimidad.
Artículo L226-9 El consejo de supervisión asumirá el control permanente de la gestión de la sociedad. Dispondrá, para ello, de las
mismas facultades que los otorgados a los auditores de cuentas. Presentará en la junta general ordinaria anual un informe en el que señalará, en particular, las irregularidades e
inexactitudes detectadas en las cuentas anuales y, eventualmente, las cuentas consolidadas del ejercicio. Tendrá acceso al mismo tiempo que los auditores de cuentas a los documentos puestos a disposición de éstos. Podrá convocar la junta general de accionistas.
Artículo L226-10 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 111 3° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 123 I 6° Diario Oficial de 2 de agosto de 2003)
Las disposiciones previstas en los artículos L.225-38 a L.225-43 serán aplicables a los contratos concertados directamente o por persona interpuesta entre una sociedad y uno de sus gerentes, uno de los miembros de su consejo de supervisión, uno de sus accionistas que posea un porcentaje de derechos de voto superior al 10 %, si se tratara de una sociedad accionista, la sociedad que la controlara en el sentido del artículo L.233-3. Igualmente, estas disposiciones serán aplicables a los contratos en los que una de estas personas esté indirectamente interesada.
Serán igualmente aplicables a los contratos concluidos entre una sociedad y una empresa si uno de los gerentes o uno de los miembros del consejo de supervisión de la sociedad fuera propietario, socio responsable ilimitadamente, gerente, administrador, director general, miembro del directorio o miembro del consejo de supervisión de la empresa.
La autorización prevista en el párrafo primero del artículo L.225-38 será concedida por el consejo de supervisión.
Artículo L226-11 La modificación de los estatutos exigirá, salvo cláusula en contrario, el acuerdo de todos los socios colectivos. La modificación de los estatutos resultante de una ampliación de capital será certificada por los gerentes.
Artículo L226-12 Serán de aplicación las disposiciones de los artículos L.225-109 y L.225-249 a los gerentes y miembros del consejo
de supervisión. Serán de aplicación las disposiciones de los artículos L. 225-52, L. 225-251 y L. 225-255 a los gerentes, incluso
aunque no sean socios.
Artículo L226-13 Los miembros del consejo de supervisión no tendrán que responder de los actos de su gestión ni de sus
resultados. Podrán ser declarados civilmente responsables de los delitos cometidos por los gerentes si, habiendo tenido
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CÓDIGO DE COMERCIO conocimiento de ellos, no los hubieran manifestado a la junta general. Serán responsables de las faltas personales cometidas en el ejercicio de su mandato.
Artículo L226-14 La transformación de la sociedad comanditaria por acciones en sociedad anónima o en sociedad de
responsabilidad limitada será decidida por la junta general extraordinaria de los accionistas, con el acuerdo favorable de la mayoría de los socios colectivos.
CAPITULO VII De las sociedades por acciones simples Artículos L227-1 a
L227-20
Artículo L227-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 101 Diario Oficial de 16 de mayo de 2001)
Una sociedad por acciones simple podrá ser constituida por una o varias personas que sólo responderán de las pérdidas hasta el importe de su aportación.
Cuando esta sociedad sólo esté formada por una persona, ésta será denominada socio único. El socio único ejercerá las competencias reservadas a los socios cuando el presente capítulo prevea una toma de decisión colectiva.
En la medida en que éstas sean compatibles con las disposiciones particulares previstas en el presente capítulo, las normas que regulen las sociedades anónimas, exceptuando los artículos L. 225-17 a L. 225-126 y L. 225-243, serán aplicables a la sociedad por acciones simples. Para la aplicación de estas normas, las atribuciones del consejo de administración o de su presidente serán ejercidas por el presidente de la sociedad por acciones simples o aquél o aquéllos de sus dirigentes a los que los estatutos hayan designado para ello.
Artículo L227-2 La sociedad por acciones simple no podrá hacer llamamiento público al ahorro.
Artículo L227-3 La decisión de transformación en sociedad por acciones simple tendrá que ser tomada por unanimidad de los
socios.
Artículo L227-4 En caso de reunión en una sola persona de todas las acciones de una sociedad por acciones simple, no serán de
aplicación las disposiciones del artículo 1844-5 del Código Civil relativas a la disolución judicial.
Artículo L227-5 Los estatutos determinarán las condiciones en las que la sociedad será dirigida.
Artículo L227-6 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 118 Diario Oficial de 2 de agosto de 2003)
La sociedad estará representada frente a terceros por un presidente designado en las condiciones previstas por los estatutos. El presidente será investido con los más amplios poderes para actuar en cualquier circunstancia en nombre de la sociedad hasta el límite que marque el propio objeto social.
En sus relaciones con terceros, la sociedad será responsable incluso de los actos del presidente que no tengan relación con el objeto social, a menos que pruebe que el tercero sabía que el acto sobrepasaba este objeto o que no podía ignorarlo considerando las circunstancias, sin que la mera publicación de los estatutos baste como prueba para ello.
Los estatutos podrán prever las condiciones en las que una o varias personas, que no sean el presidente y que lleven el título de director general o de director general delegado, puedan ejercer los poderes otorgados a este último por el presente artículo.
Las disposiciones estatutarias que limiten las facultades del presidente no serán oponibles frente a terceros.
Artículo L227-7 Cuando una persona jurídica sea nombrada presidente o dirigente de una sociedad por acciones simples, los
dirigentes de dicha persona jurídica estarán sometidos a las mismas condiciones y obligaciones e incurrirán en las mismas responsabilidades civiles y penales que si fuesen presidente o dirigente en su propio nombre, sin perjuicio de la responsabilidad solidaria de la persona jurídica que dirijan.
Artículo L227-8 Las normas que determinan la responsabilidad de los miembros del consejo de administración y del directorio de
las sociedades anónimas se aplicarán al presidente y a los dirigentes de la sociedad por acciones simple.
Artículo L227-9 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 125 Diario Oficial de 16 de mayo de 2001)
Los estatutos determinarán las decisiones que deberán ser tomadas colectivamente por los socios en las formas y condiciones que prevean.
Sin embargo, las atribuciones reservadas a las juntas generales extraordinarias y ordinarias de las sociedades anónimas, en materia de ampliación, de amortización o de reducción de capital, de fusión, de escisión, de disolución, de transformación en sociedad de otra forma, de nombramiento de auditores de cuentas, de cuentas anuales y de beneficios serán ejercidas colectivamente por los socios, en las condiciones previstas por los estatutos.
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CÓDIGO DE COMERCIO En las sociedades que tengan un único socio, el informe de gestión, las cuentas anuales y eventualmente las
cuentas consolidadas serán establecidas por el presidente. El socio único aprobará las cuentas, tras el informe del auditor de cuentas, en el plazo de seis meses contados a partir del cierre del ejercicio. El socio único no podrá delegar sus competencias. Sus decisiones serán inscritas en un registro.
Las decisiones tomadas infringiendo las disposiciones previstas en el presente artículo podrán ser anuladas a petición de cualquier interesado.
Artículo L227-10 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 111 4° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 123 I 6° Diario Oficial de 2 de agosto de 2003)
El auditor de cuentas presentará a los socios un informe sobre los contratos concertados directamente o por persona interpuesta entre la sociedad y su presidente o uno de sus dirigentes, uno de sus accionistas poseedores de una porción de derechos de voto superior al 10 % o, si se trata de una sociedad accionista, la sociedad que la controle en el sentido del artículo L.233-3.
Los socios resolverán de acuerdo a este informe. Los contratos no aprobados, producirán sin embargo sus efectos, siendo responsable de las consecuencias
perjudiciales para la sociedad la persona interesada y eventualmente el presidente y los demás dirigentes. Por excepción a lo establecido por las disposiciones del párrafo primero, cuando la sociedad sólo tenga un socio,
se hará solamente mención en el registro de las decisiones de los contratos realizados directamente o por personas interpuestas entre la sociedad y su dirigente.
Artículo L227-11 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 111 13° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 123 I 4° Diario Oficial de 2 de agosto de 2003)
Los contratos que consistan en operaciones corrientes y concertadas en condiciones normales, deberán ser comunicados al auditor de cuentas, salvo si debido a su objeto o a sus implicaciones financieras éstos no fueran significativos para ninguna de las partes. Todo socio tendrá derecho a obtener información sobre ellas.
Artículo L227-12 Las prohibiciones previstas en el artículo L.225-43 se aplicarán, en las condiciones determinadas por este artículo,
al presidente y a los dirigentes de la sociedad.
Artículo L227-13 Los estatutos de la sociedad podrán prever la intransferibilidad de las acciones por un período que no excederá de
los diez años.
Artículo L227-14 Los estatutos podrán someter cualquier transmisión de acciones a la autorización previa por parte de la sociedad.
Artículo L227-15 Cualquier transmisión efectuada infringiendo las cláusulas estatutarias será nula.
Artículo L227-16 En las condiciones determinadas por los estatutos éstos podrán prever que un socio pueda verse obligado a ceder
sus acciones. Podrán así mismo prever la suspensión de los derechos no dinerarios de este socio en tanto que éste no haya
procedido a esta transmisión.
Artículo L227-17 Los estatutos podrán prever que la sociedad asociada cuyo control sea modificado de conformidad con el artículo
L.233-3 deba, a partir de esta modificación, informar de ello a la sociedad por acciones simples. Ésta podrá decidir, en las condiciones establecidas por los estatutos, suspender el ejercicio de los derechos no dinerarios de este socio y excluirlo.
Las disposiciones del párrafo anterior podrán aplicarse, en las mismas condiciones, al socio que haya adquirido esta condición tras una operación de fusión, de escisión o de disolución.
Artículo L227-18 Si los estatutos no determinaran las modalidades del precio de transmisión de las acciones cuando la sociedad
instaure una cláusula introducida en aplicación de los artículos L.227-14, L.227-16 y L.227-17, este precio será determinado por acuerdo entre las partes o, en su defecto, determinado en las condiciones previstas en el artículo 1843-4 del Código Civil.
Cuando las acciones sean rescatadas por la sociedad, ésta estará obligada a enajenarlas en un plazo de seis meses o a anularlas.
Artículo L227-19 Las cláusulas estatutarias citadas en los artículos L.227-13, L.227-14, L.227-16 y L.227-17 sólo podrán ser
adoptadas o modificadas por unanimidad de los socios.
Artículo L227-20 Los artículos L 227-13 a L. 227-19 no serán de aplicación a las sociedades que sólo incluyan un socio.
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CÓDIGO DE COMERCIO CAPITULO VIII De los valores mobiliarios emitidos por las sociedades por acciones Artículos L228-1 a
L228-106
Sección I Disposiciones comunes a los valores mobiliarios Artículos L228-1 a
L228-6-3
Artículo L228-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 119 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 24 Diario Oficial de 26 de junio de 2004)
Las sociedades por acciones emitirán todo tipo de valores mobiliarios en las condiciones del presente libro. Los valores mobiliarios emitidos por las sociedades por acciones serán definidos en el artículo L. 211-2 del Código
Monetario y Financiero. Los valores mobiliarios emitidos por las sociedades por acciones revestirán la forma de títulos al portador o de
títulos nominativos, salvo en el caso de las sociedades para las que la Ley o los estatutos imponen exclusivamente la forma nominativa para la totalidad o parte del capital.
Salvo acuerdo en contrario, cualquier propietario cuyos títulos formen parte de una emisión que incluya simultáneamente títulos al portador y títulos nominativos tendrá la facultad de convertir sus títulos en la otra forma.
Sin embargo, la conversión de los títulos nominativos no será posible en el caso de las sociedades para las que a ley o los estatutos imponen la forma nominativa para la totalidad o parte del capital.
Estos valores mobiliarios, cualquiera que sea su forma, deberán ser inscritos en una cuenta a nombre de su propietario, en las condiciones previstas por el punto II del artículo 94 de la Ley de finanzas para 1982 (nº 81-1160 de 30 de diciembre de 1981).
Sin embargo, cuando los títulos de capital de la sociedad hayan cotizado en un mercado regulado y su propietario no tenga su domicilio en territorio francés, en el sentido del artículo 102 del Código Civil, cualquier intermediario podrá ser inscrito por cuenta de este propietario. Esta inscripción podrá ser realizada bajo la forma de una cuenta colectiva o de varias cuentas individuales correspondiendo, cada una, a un propietario.
El intermediario inscrito estará obligado, en el momento de la apertura de su cuenta ante, o bien la sociedad emisora, o bien el intermediario financiero habilitado para ser el depositario de la cuenta, a declarar, en las condiciones determinadas por decreto, su condición de intermediario depositario de títulos por cuenta ajena.
En caso de cesión de valores mobiliarios admitidos a negociación en un mercado regulado o de valores mobiliarios no admitidos a negociación en un mercado regulado pero contabilizados en la cuenta de un intermediario habilitado partícipe en un sistema de pagos y entrega mencionado en el artículo L. 330-1 del Código Monetario y Financiero, la transmisión de la propiedad se realizará en las condiciones previstas en el artículo L. 431-2 de dicho Código. En los demás casos, la transmisión de propiedad será el resultado de la anotación de los valores mobiliarios en la cuenta del comprador, en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Artículo L228-2 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 119 2° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 125 1° Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 25 Diario Oficial de 26 de junio de 2004)
I. - Para identificar a los tenedores de los títulos al portador, los estatutos podrán prever que la sociedad emisora tenga derecho a solicitar en cualquier momento, a cambio de una remuneración a su cargo, a la central depositaria encargada de llevar la cuenta de emisión de sus títulos, según el caso, el nombre o la denominación, la nacionalidad, el año de nacimiento o el año de constitución y la dirección de los tenedores de los títulos que confieren inmediatamente o de manera diferida el derecho de voto en sus propias juntas de accionistas, así como la cantidad de títulos detentada por cada uno de ellos y, en su caso, las restricciones que puedan afectar a dichos títulos.
Estas informaciones serán recabadas por la central depositaria antes mencionada en los establecimientos depositarios de las cuentas que estén afiliados a él, los cuales se las comunicarán en un plazo fijado por decreto adoptado en Conseil d'Etat. Esta central depositaria presentará estas informaciones a la sociedad en los cinco días laborables siguientes a la recepción.
Cuando el plazo fijado por decreto no haya sido respetado, o cuando las informaciones dadas por el establecimiento depositario de las cuentas sean incompletas o erróneas, la central depositaria podrá requerir la obligación de comunicación, bajo pena de multa, al presidente del Tribunal de grande instance para que resuelva en procedimiento sumario.
II. - La sociedad emisora, tras haber seguido el procedimiento previsto en el punto I y considerando la lista presentada por la central depositaria anteriormente citada, tendrá la facultad de solicitar, a través de esta central depositaria o bien directamente, en las mismas condiciones y bajo las sanciones previstas en el artículo L.228-3-2, a las personas que figuren en esta lista y de las cuales la sociedad estime que podrían estar inscritas por cuenta de terceros, las informaciones relativas a los propietarios de los títulos previstas en el punto I.
Estas personas estarán obligadas, cuando tengan la condición de intermediario, a dar a conocer la identidad de los propietarios de esos títulos. La información será directamente presentada al intermediario financiero habilitado para ser depositario de la cuenta, que estará encargado de comunicarla, según el caso, a la sociedad emisora o a la central depositaria anteriormente mencionada.
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CÓDIGO DE COMERCIO III. - Las informaciones obtenidas por la sociedad no podrán ser cedidas por ésta, ni siquiera a título gratuito.
Cualquier infracción de esta disposición será castigada con las penas previstas en el artículo 226-13 del Código Penal.
Artículo L228-3 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 119 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 XI Diario Oficial de 26 de junio de 2004)
Si se trata de títulos en forma nominativa, que den acceso al capital de forma inmediata o diferida, el intermediario inscrito en las condiciones previstas en el artículo L.228-1 estará obligado, en un plazo fijado por decreto adoptado en Conseil d'Etat, a dar a conocer la identidad de los propietarios de estos títulos así como la cantidad de títulos poseídos a petición de la sociedad emisora o de su mandatario, la cual podrá ser presentada en cualquier momento.
Los derechos especiales vinculados a las acciones nominativas, en particular los previstos en los artículos L.225-123 y L.232-14, sólo podrán ser ejercidos por un intermediario inscrito en las condiciones previstas en el artículo L. 228-1 si las informaciones que diera permitieran el control de las condiciones requeridas para el ejercicio de estos derechos.
Artículo L228-3-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 119 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 XI Diario Oficial de 26 de junio de 2004)
I.- Cuando la sociedad emisora estime que algunos tenedores cuya identidad le haya sido comunicada lo son por cuenta de terceros propietarios de los títulos, tendrá derecho a solicitar a estos tenedores que den a conocer la identidad de los propietarios de esos títulos así como la cantidad de títulos poseídos por cada uno de ellos, en las condiciones previstas respectivamente en el párrafo primero del punto II del artículo L.228-2 para los títulos al portador y en el párrafo primero del artículo L.228-3 para los títulos nominativos.
II. - Tras estas operaciones, y sin perjuicio de las obligaciones de declaración de participaciones significativas impuestas por los artículos L.233-7, L.233-12 y L.233-13, la sociedad emisora podrá solicitar a cualquier persona jurídica propietaria de sus acciones y que posea participaciones que excedan de la cuarentava parte del capital o de los derechos de voto que dé a conocer la identidad de las personas que detenten directa o indirectamente más de un tercio del capital social de esta persona jurídica o de los derechos de voto que sean ejercidos en las juntas generales de ésta.
Artículo L228-3-2 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 119 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 XII Diario Oficial de 26 de junio de 2004)
El intermediario que haya cumplido con las obligaciones previstas en los párrafos séptimo y octavo del artículo L.228-1 podrá, en virtud de un mandato general de gestión de los títulos, transmitir en una junta el voto o el poder de un propietario de acciones tal y como ha sido determinado en el párrafo tercero del mismo artículo.
Antes de transmitir poderes o votos en junta general, el intermediario inscrito de acuerdo al artículo L.228-1 estará obligado, a petición de la sociedad emisora o de su mandatario, a presentar la lista de propietarios, no residentes, de las acciones a las que esos derechos de voto estén vinculados así como la cantidad de acciones poseídas por cada uno de ellos. Esta lista será presentada en las condiciones previstas, según el caso, en los artículos L.228-2 o L.228-3.
El voto o el poder emitido por un intermediario que no se haya declarado como tal en virtud del párrafo octavo del artículo L.228-1 o del párrafo segundo del presente artículo, o no haya dado a conocer la identidad de los propietarios de los títulos en virtud de los artículos L.228-2 o L.228-3, no podrá ser tenido en cuenta.
Artículo L228-3-3 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 119 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 XIII Diario Oficial de 26 de junio de 2004)
Cuando la persona que sea objeto de una petición en virtud de los artículos L.228-2 a L.228-3 no haya transmitido las informaciones en los plazos previstos en estos artículos o las haya transmitido de forma incompleta o errónea en relación con su condición, o con la de los propietarios de los títulos, o con la cantidad de títulos poseídos por cada uno de ellos, o con las acciones o los títulos que den acceso de forma inmediata o diferida al capital y para los que esta persona haya sido anotada en cuenta, estarán privados de los derechos de voto en toda junta de accionistas que se celebre hasta la fecha de regularización de la identificación, y el pago del dividendo correspondiente será diferido hasta esa fecha.
Además, en el caso de que la persona inscrita hiciese caso omiso de las disposiciones previstas en los artículos L.228-1 a L. 228-3-1, el tribunal en cuya circunscripción la sociedad tenga la sede social podrá, a instancia de la sociedad o de uno o varios accionistas que detenten al menos un 5% del capital, decretar por un período total que no exceda de cinco años la privación total o parcial de los derechos de voto vinculados a las acciones que hayan sido objeto de las pesquisas y, eventualmente y durante el mismo período, del dividendo correspondiente.
Artículo L228-3-4 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 119 2° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 V 1°, art. 152 2° Diario Oficial de 2 de agosto de 2003)
Toda persona que participe en cualquier concepto en la dirección o en la gestión del depositario central de instrumentos financieros así como toda persona empleada por éste, por la sociedad emisora o por el intermediario inscrito, y que tenga conocimiento en el marco de su actividad profesional de las informaciones mencionadas en los artículos L.228-1 a L.228-3-2 estará obligada a guardar secreto profesional en las condiciones y bajo pena de las sanciones previstas en los artículos 226-13 y 226-14 del Código Penal. El secreto profesional no podrá ser alegado ni
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CÓDIGO DE COMERCIO ante la Autoridad de mercados financieros ni ante la autoridad judicial.
Nota: Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 V 1º y 2º: 1º Las referencias a la Comisión de Operaciones Bursátiles y al Consejo de disciplina de la gestión financiera serán
sustituidas por la referencia a la Autoridad de Mercados Financieros; 2° Las referencias a los reglamentos de la Comisión de Operaciones Bursátiles y al reglamento general del
Consejo de Mercados Financieros de disciplina de la gestión financiera serán sustituidas por la referencia al reglamento general de la Autoridad de Mercados Financieros.
Artículo L228-4 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 26 Diario Oficial de 26 de junio de 2004)
Estará prohibida, bajo pena de nulidad, la emisión de las partes beneficiarias o de fundador. Sin embargo, las partes beneficiarias o partes de fundador emitidas antes de 1 de abril de 1967 continuarán
reguladas por los textos relativos a ellas.
Artículo L228-5 Con relación a la sociedad, los títulos serán indivisibles, no obstante la aplicación de los artículos L.225-110 y
L.225-118.
Artículo L228-6 A pesar de las cláusulas estatutarias en contrario, las sociedades que hayan efectuado o bien canjes de títulos
consecutivos a una operación de fusión o de escisión, de reducción de capital, de reagrupación o de división y de conversión obligatoria de títulos al portador en títulos nominativos, o bien de repartos de títulos imputados a las reservas o vinculados a una reducción de capital, o bien de repartos o atribuciones de acciones gratuitas podrán, por simple decisión del consejo de administración, del directorio o de los gerentes, vender, según las modalidades determinadas por decreto adoptado en Conseil d'Etat los títulos de los que los derechohabientes no hayan solicitado la entrega, a condición de que hayan procedido, con una anterioridad de al menos dos años, a darles publicidad según las modalidades fijadas por dicho decreto.
A partir de esta venta, los antiguos títulos o los antiguos derechos a los repartos o atribuciones serán, en tanto sea necesario, anulados y sus titulares sólo podrán pedir el reparto en efectivo del producto neto de la venta de los títulos no reclamados.
Artículo L228-6-1 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 27 Diario Oficial de 26 de junio de 2004)
En las sociedades cuyos títulos estén admitidos a negociación en un mercado regulado, la junta general extraordinaria de accionistas que haya autorizado una fusión o una escisión podrá decidir que al finalizar un periodo que no podrá ser superior a un límite fijado por decreto adoptado en Conseil d'Etat, a partir de la fecha de anotación en su cuenta del número entero de acciones adjudicadas, tendrá lugar una venta global de acciones no adjudicadas correspondientes a la fracción excedente del cociente exacto de la adjudicación, según las modalidades de cálculo determinadas por decreto adoptado en Conseil d'Etat, con vistas al reparto de los fondos entre los interesados.
Artículo L228-6-2 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 27 Diario Oficial de 26 de junio de 2004)
Los derechos no dinerarios vinculados a los valores mobiliarios anotados en una cuenta en participación serán ejercidos por uno u otro de los cotitulares en las condiciones determinadas por el acuerdo de apertura de la cuenta.
Artículo L228-6-3 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 27 Diario Oficial de 26 de junio de 2004)
Los títulos cuyos titulares, pese a que se respeten los requisitos formales de convocatoria a las juntas generales, no fueran conocidos por el depositario de la cuenta o no hubieran reaccionado a las convocatorias por un periodo de por lo menos diez años, podrán ser vendidos con arreglo al procedimiento previsto en el artículo L. 228-6. Esta venta se realizará tras la expiración de un plazo fijado por decreto adoptado en Conseil d'Etat, a partir de la publicidad prevista en dicho artículo, siempre y cuando el depositario de la cuenta haya realizado todas las gestiones necesarias durante dicho periodo, en las condiciones establecidas por el mismo decreto, para contactar con los titulares o sus derechohabientes.
Sección II De las acciones Artículos L228-7 a
L228-29-7
Artículo L228-7 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 28 Diario Oficial de 26 de junio de 2004)
Las acciones suscritas por aportaciones dinerarias serán aquéllas cuyo importe sea desembolsado en efectivo o por compensación, las que sean emitidas a consecuencia de una incorporación al capital de reservas, de beneficios o de primas de emisión, y aquéllas cuyo importe provenga, por una parte de una incorporación de reservas, de beneficios o de primas de emisión y por otra parte de un desembolso en efectivo. Estas últimas deberán ser íntegramente desembolsadas en el momento de su suscripción.
Sin perjuicio de las normas específicas aplicables a las acciones resultantes de una fusión o de una escisión, todas las demás acciones serán acciones por aportaciones no dinerarias.
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CÓDIGO DE COMERCIO Artículo L228-8
El importe nominal de las acciones o partes de acciones podrá ser determinado por los estatutos. Esta opción se aplicará entonces a todas las emisiones de acciones.
Artículo L228-9 La acción por aportación dineraria será nominativa hasta su total desembolso.
Artículo L228-10 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 29 Diario Oficial de 26 de junio de 2004)
Las acciones no serán negociables hasta que no se haya producido la inscripción de la sociedad en el Registro de Comercio y de Sociedades. En caso de ampliación de capital, las acciones serán negociables a partir de la realización de ésta.
Estará prohibida la negociación con promesas de acciones, a menos que se trate de acciones para las que se haya solicitado la admisión a un mercado regulado, o que se trate de acciones que se creen por una ampliación de capital de una sociedad cuyas antiguas acciones ya están admitidas en un mercado regulado. En ese caso, la negociación sólo será válida si se efectúa bajo condición suspensiva de la realización de la ampliación de capital. A falta de indicación expresa, esta condición se presumirá.
Artículo L228-11 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004)
En el momento de la constitución de la sociedad o durante su existencia se podrán crear acciones preferentes, con o sin derecho de voto, provistas de derechos particulares de todo tipo, a título temporal o permanente. Estos derechos estarán definidos por los estatutos en cumplimiento de lo dispuesto en los artículos L. 225-10 y L. 225-122 a L. 225-125.
El derecho de voto podrá ponderarse por un plazo determinado o determinable. Podrá ser suspendido por un plazo determinado o determinable, o podrá ser suprimido.
Las acciones preferentes sin derecho de voto no podrán representar más de la mitad del capital social, y en las sociedades cuyas acciones estén admitidas a negociación en un mercado regulado, no podrán representar más de la cuarta parte del capital social.
Cualquier emisión que tuviera por efecto aumentar dicha proporción más allá de este límite podrá ser anulada.
Artículo L228-12 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004)
La junta general extraordinaria de accionistas será la única competente para decidir la emisión, el rescate y la conversión de las acciones preferentes tras el examen de un informe especial de los auditores de cuentas. Podrá delegar estos poderes en las condiciones determinadas por los artículos L. 225-129 a L. 225-129-6.
Las modalidades de rescate o de conversión de las acciones preferentes también podrán estar reguladas en los estatutos
En todo momento durante el ejercicio en curso y a más tardar en la primera reunión siguiente al cierre de éste, el consejo de administración o el directorio de la sociedad hará constar, si procede, el número y el importe nominal de las acciones derivadas de la conversión de las acciones preferentes en el ejercicio transcurrido y realizará las modificaciones necesarias a las cláusulas de los estatutos relativas al importe del capital social y al número de títulos que lo componen.
El presidente del directorio o el director general, por delegación del directorio o del consejo de administración, podrá proceder a estas operaciones en cualquier momentos durante el ejercicio y a más tardar en el plazo fijado por decreto adoptado en Conseil d'Etat.
Artículo L228-13 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004) (Disposición nº 2004-1343 de 9 de diciembre de 2004 Artículo 78 XXVII Diario Oficial de 10 de diciembre de 2004)
Los derechos particulares mencionados en el artículo L. 228-11 podrán ser ejercidos en la sociedad que posea directa o indirectamente más de la mitad del capital de la emisora o en la sociedad cuya emisora posea directa o indirectamente más de la mitad del capital.
La emisión deberá en tal caso ser autorizada por la junta general extraordinaria de la sociedad que vaya a emitir acciones preferentes y por la junta general extraordinaria de la sociedad en el seno de la cual se ejercen los derechos.
Los auditores de cuentas de las sociedades interesadas deberán elaborar un informe especial. NOTA: Estas disposiciones serán de aplicación en Mayotte, en Nueva Caledonia y en las islas Wallis y Futuna.
Artículo L228-14 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004)
Las acciones preferentes podrán ser convertidas en acciones ordinarias o preferentes de otra categoría. En caso de conversión de acciones preferentes en acciones que lleven a una reducción de capital no motivada por
pérdidas, los acreedores cuyo crédito sea anterior a la fecha del depósito en Secretaría del acta de deliberación de la junta general, o del consejo de administración o del directorio en caso de delegación, podrán oponerse a la conversión en el plazo y con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Las operaciones de conversión no podrán iniciarse durante el período de impugnación ni, en su caso, antes de que se haya resuelto en primera instancia sobre dicha impugnación.
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CÓDIGO DE COMERCIO Artículo L228-15 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004)
La creación de dichas acciones dará lugar a la aplicación de los artículos L. 225-8, L. 225-14, L. 225-147 y L. 225-148 relativos a los beneficios especiales cuando las acciones sean emitidas en beneficio de uno o varios accionistas designados nominalmente. En tal caso, el auditor de aportaciones previsto en estos artículos será un auditor de cuentas que no haya desempeñado en los últimos cinco años y ni esté desempeñando en ese momento ninguna función dentro de la sociedad.
Los titulares de acciones que deban ser convertidas en acciones preferentes de la categoría a crear no podrán tomar parte en la votación, bajo pena de nulidad, sobre la creación de dicha categoría, y las acciones que posean no serán tenidas en cuenta para calcular el quórum y la mayoría, a menos que el conjunto de las acciones sea objeto de una conversión en acciones preferentes.
Artículo L228-16 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004)
En caso de modificación o de amortización de capital, la junta general extraordinaria determinará las consecuencias de dichas operaciones sobre los derechos de los tenedores de acciones preferentes.
Estas consecuencias también podrán estar contempladas en los estatutos.
Artículo L228-17 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004)
En caso de fusión o de escisión, las acciones preferentes podrán ser canjeadas por acciones de las sociedades beneficiarias de la transferencia de patrimonio con derechos particulares equivalentes, o según una paridad de cambio específica que tenga en cuenta los derechos particulares abandonados.
Si no hubiera ningún canje por acciones que confirieran derechos particulares equivalentes, la fusión o la escisión estarán sometidas a la aprobación de la junta general especial prevista en el artículo L. 225-99.
Artículo L228-18 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004)
El dividendo que se distribuya, en su caso, a los titulares de acciones preferentes, podrá serlo en la forma de títulos de capital, según las modalidades establecidas por la junta general extraordinaria o por los estatutos.
Artículo L228-19 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004)
Los tenedores de acciones preferentes, reunidos en junta especial, podrán encomendar a un de los auditor de cuentas de la sociedad la misión de elaborar un informe especial que examine el cumplimiento, por parte de la sociedad, de los derechos particulares vinculados a las acciones preferentes. Dicho informe se remitirá a los tenedores en una junta especial.
Artículo L228-20 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 31 Diario Oficial de 26 de junio de 2004)
Cuando las acciones preferentes estén admitidas a negociación en un mercado regulado, podrán ser rescatadas o reembolsadas, por iniciativa de la sociedad o del tenedor, en caso de que el mercado no fuera líquido, en las condiciones previstas por los estatutos.
Artículo L228-21 Las acciones seguirán siendo negociables tras la disolución de la sociedad y hasta el cierre de la liquidación.
Artículo L228-22 La anulación de la sociedad o de una emisión de acciones no conllevará la nulidad de las negociaciones realizadas
con anterioridad a la decisión de anulación, siempre que los títulos sean formalmente válidos. Sin embargo, el comprador podrá ejercer una acción de garantía contra su vendedor.
Artículo L228-23 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 32 Diario Oficial de 26 de junio de 2004)
En una sociedad cuyos títulos de capital no estuvieran admitidos a negociación en un mercado regulado, la cesión de títulos de capital o de valores mobiliarios que den acceso al capital, por cualquier concepto que fuere, podrá estar sometida a la autorización de la sociedad por medio de una cláusula en los estatutos. Esta cláusula será descartada en caso de sucesión, de liquidación del régimen matrimonial o de cesión en beneficio de un cónyuge, de un ascendiente o de un descendiente.
Se podrá estipular una cláusula de autorización solamente si los títulos son nominativos en virtud de la Ley o de los estatutos.
Cuando los estatutos de una sociedad que no haga llamamiento público al ahorro reserven acciones a los empleados de la sociedad, podrá establecerse una cláusula de autorización contraria a las disposiciones del párrafo primero anterior, siempre que esta cláusula tenga por objeto evitar que dichas acciones sean destinadas o transmitidas personas que no tengan la condición de empleado de la sociedad.
Toda transmisión efectuada infringiendo una cláusula de autorización que figure en los estatutos será nula.
Artículo L228-24
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CÓDIGO DE COMERCIO (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 33 Diario Oficial de 26 de junio de 2004)
En caso de estipularse una cláusula de autorización, será notificada a la sociedad la solicitud de autorización con indicación de los apellidos, nombres y dirección del cesionario, del número de títulos de capital o valores mobiliarios que den acceso al capital cuya cesión se prevé y cuyo precio se ofrece. La autorización se obtendrá, o por una notificación, o por falta de respuesta en un plazo de tres meses contados a partir de la solicitud.
Si la sociedad no autorizara al cesionario propuesto, el consejo de administración, el directorio o los gerentes, según el caso y en el plazo de tres meses a partir de la notificación de la denegación, tendrán que obligar bien a que un accionista o un tercero adquieran los títulos de capital o los valores mobiliarios que den acceso al capital, bien a que con el consentimiento del cedente, la sociedad las adquiera con vistas a una reducción del capital. A falta de acuerdo entre las partes, el precio de los títulos de capital o valores mobiliarios que dan acceso al capital será determinado en las condiciones previstas por el artículo 1843-4 del Código Civil. El cedente podrá renunciar en cualquier momento a la cesión de sus títulos de capital o valores mobiliarios que dan acceso al capital. Cualquier cláusula en contrario al artículo 1843-4 de dicho código se tendrá por no puesta.
Si, tras la expiración del plazo previsto en el párrafo anterior, la compra no se hubiera realizado, se considerará concedida la autorización. Sin embargo, este plazo se podrá prolongar por resolución judicial si la sociedad lo solicitase.
Artículo L228-26 Si la sociedad hubiera dado su consentimiento a un proyecto de pignoración en las condiciones previstas en el
párrafo primero del artículo L.228-24, ese consentimiento conllevará la autorización del cesionario en caso de venta forzosa de las acciones pignoradas según las disposiciones del párrafo primero del artículo 2078 del Código Civil, a menos que la sociedad prefiera tras la cesión rescatar sin plazo las acciones, con el fin de reducir su capital.
Artículo L228-27 Si no se produjera por parte del accionista el desembolso en las fechas fijadas por el consejo de administración, el
directorio o los gerentes, según el caso, de las cantidades que queden por pagar sobre el importe total de las acciones suscritas por él, la sociedad le dirigirá un requerimiento de pago.
Transcurrido un mes desde el requerimiento sin respuesta, la sociedad procederá, sin necesidad de autorización judicial, a la venta de dichas acciones.
La venta de las acciones cotizables se efectuará en bolsa. La venta de las acciones no cotizables se realizará en subasta pública. El accionista que se encuentre en mora quedará como deudor o se beneficiará de la diferencia. Las condiciones de aplicación del presente párrafo serán determinadas por decreto adoptado en Conseil d'Etat.
Artículo L228-28 El accionista que se hallase en mora, los vendedores sucesivos y los suscriptores estarán obligados solidariamente
por el importe no desembolsado de la acción. La sociedad podrá actuar contra ellos, ya sea antes o después de la venta, o al mismo tiempo para obtener tanto la cantidad adeudada como el reembolso de los gastos realizados.
El que haya pagado a la sociedad dispondrá de una acción por el importe total contra los titulares sucesivos de la acción. La carga definitiva de la deuda corresponderá al último de ellos.
Dos años después de la transferencia de una cuenta de valores mobiliarios a otra cuenta, todo suscriptor o accionista que haya cedido su título dejará de estar obligado a los pagos aún no solicitados.
Artículo L228-29 Tras la expiración del plazo fijado por decreto adoptado en Conseil d'Etat, las acciones sobre cuyo importe no
hayan sido efectuados los pagos exigibles, dejarán de dar derecho a la admisión y a los votos en las juntas de accionistas y serán deducidas para el cálculo del quórum.
Serán suspendidos el derecho a los dividendos y el derecho de suscripción preferente en las ampliaciones de capital vinculados a estas acciones.
Tras el pago de las cantidades adeudadas, en capital y en intereses, el accionista podrá solicitar el pago de los dividendos no prescritos. Tras la expiración del plazo fijado para el ejercicio de este derecho no podrá ejercer una acción en razón del derecho de suscripción preferente en una ampliación de capital.
Artículo L228-29-1 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 34 Diario Oficial de 26 de junio de 2004)
Las acciones que tengan un valor nominal inferior o igual a un importe fijado por decreto adoptado en Conseil d'Etat y no admitidas a negociación en un mercado regulado podrán ser reagrupadas, salvo disposición legal o estatutaria en contrario. Las reagrupaciones serán decididas por las juntas generales de accionistas que resolverán en las condiciones previstas para la modificación de estatutos y de conformidad con lo dispuesto en el artículo L. 228-29-2.
Artículo L228-29-2 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 34 Diario Oficial de 26 de junio de 2004)
Las reagrupaciones de acciones previstas en el artículo L. 228-29-1 incluirán la obligación, para los accionistas, de proceder a las compras o cesiones de acciones necesarias para realizar la reagrupación.
El valor nominal de las acciones reagrupadas no podrá ser superior a un importe fijado por decreto adoptado en Conseil d'Etat.
Para facilitar estas operaciones y antes de la decisión de la junta general, la sociedad deberá obtener de uno o varios accionistas su compromiso para proponer durante un plazo de dos años y al precio fijado por la junta, tanto para la compra como para la venta, la contrapartida de las ofertas relativas a las fracciones que excedan del cociente exacto surgido del reparto o de las peticiones para completar el número de títulos pertenecientes a cada uno de los accionistas
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CÓDIGO DE COMERCIO interesados.
Artículo L228-29-3 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 34 Diario Oficial de 26 de junio de 2004)
Tras la expiración del plazo fijado por el decreto previsto en el artículo L. 228-29-7, las acciones que no hayan sido presentadas para su reagrupación perderán su derecho de voto y se suspenderá su derecho a dividendo.
El decreto mencionado en el primer párrafo podrá conceder un plazo suplementario a los accionistas que se hayan comprometido de conformidad con lo dispuesto en el párrafo tercero del artículo L. 228-29-2.
Los dividendos cuyo pago hubiera sido suspendido en cumplimiento del párrafo primero serán abonados, en caso de reagrupación ulterior, a los propietarios de las antiguas acciones siempre y cuando no se les aplique la prescripción.
Artículo L228-29-4 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 34 Diario Oficial de 26 de junio de 2004)
Cuando los propietarios de los títulos no dispongan de la libre administración de sus bienes, la solicitud de canje de los antiguos títulos y las compras o cesiones de las fracciones que excedan del cociente exacto del reparto y sean necesarios para realizar la reagrupación se asimilarán a actos de simple administración, salvo que los nuevos títulos se pidan al tenedor a cambio de títulos nominativos.
Artículo L228-29-5 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 34 Diario Oficial de 26 de junio de 2004)
Los nuevos títulos tendrán las mismas características y conferirá de pleno derecho y sin necesidad de ningún requisito formal los mismos derechos reales o derechos de crédito que los títulos que sustituyen.
Los derechos reales y las pignoraciones serán trasladados de pleno derecho a los nuevos títulos adjudicados para sustituir los antiguos títulos que los tuvieran.
Artículo L228-29-6 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 34 Diario Oficial de 26 de junio de 2004)
En caso de incumplimiento, por parte de la sociedad, del artículo L. 228-29-1 o L. 228-29-2, o de las condiciones en que deben tomarse las decisiones de las juntas generales así como de los requisitos formales de publicidad establecidos por el decreto previsto en el artículo L. 228-29-7, la reagrupación seguirá siendo facultativa para los accionistas. Lo dispuesto en el artículo L. 228-29-3 no podrá aplicarse a los accionistas.
Si el o los accionistas que se hubieran comprometido de conformidad con el artículo L. 228-29-2 no cumplieran su compromiso, las operaciones de reagrupación podrán ser anuladas. En tal caso, las compras y las ventas de las fracciones excedentes del cociente exacto del reparto podrán ser anuladas previa petición de los accionistas que las hubieran realizado o de sus causahabientes, a excepción de los accionistas que se encuentren en mora.
Artículo L228-29-7 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 34 Diario Oficial de 26 de junio de 2004)
Un decreto adoptado en Conseil d'Etat establecerá las modalidades de aplicación de los artículos L. 228-29-1 a L. 228-29-6, y en particular las condiciones no previstas en el artículo L. 228-29-1 en las que deban tomarse las decisiones de las juntas generales de accionistas y deban cumplirse los requisitos formales de publicidad de dichas decisiones.
Sección III Disposiciones aplicables a las categorías de títulos en vías de extinción Artículos L228-29-8 a
L228-35-11
Subsección 1 Disposiciones generales Artículos L228-29-8 a
L228-29-10
Artículo L228-29-8 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 35 Diario Oficial de 26 de junio de 2004)
Ningún título nuevo podrá emitirse según lo dispuesto en los artículos de la presente sección, con excepción de aquéllos que fueran emitidos en aplicación de las decisiones de las juntas generales anteriores a la entrada en vigor de la Disposición n° 2004-604 de 24 de junio de 2004 relativa a la reforma del régimen de valores mobiliarios emitidos por las sociedades comerciales y a la aplicación en los territorios de Ultramar de las disposiciones de modificación de la legislación comercial.
Artículo L228-29-9 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 35 Diario Oficial de 26 de junio de 2004)
Los tenedores de títulos regulados por la presente sección dispondrán, salvo en caso de aplicación del artículo L. 225-138, de un derecho de suscripción preferente de las acciones preferentes mencionadas en el artículo L. 228-11 cuando éstas confieran derechos equivalentes a los de los títulos que poseen.
Los tenedores de títulos regulados por la presente sección dispondrán, salvo en caso de aplicación del artículo L. 225-138, de un derecho de suscripción preferente de los valores mobiliarios mencionados en el artículo L. 228-91 cuando éstos confieran derechos equivalentes a los de los títulos que poseen.
Artículo L228-29-10
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CÓDIGO DE COMERCIO (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 35 Diario Oficial de 26 de junio de 2004)
Para el cálculo de las fracciones previstas en el artículo L. 228-11, se tendrán en cuenta las acciones con dividendo preferente sin derecho de voto y los certificados de inversión existentes.
No obstante, la aplicación de lo dispuesto en el párrafo anterior no impedirá el mantenimiento de los derechos de los propietarios de títulos existentes.
Subsección 2 De los certificados de inversión Artículos L228-30 a
L228-35
Artículo L228-30 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 35 I, Artículo 36 I Diario Oficial de 26 de junio de 2004)
La junta general extraordinaria de una sociedad por acciones, o en las sociedades que no estén dotadas de ella, el órgano que la sustituya, podrá decidir, tras el examen del informe del consejo de administración o del directorio, según el caso, y tras el de los auditores de cuentas, la creación, en una proporción que no podrá ser superior a un cuarto del capital social, de los certificados de inversión representativos del derecho de percepción de dividendos y de certificados de derecho de voto representativos de los otros derechos vinculados a las acciones emitidas con ocasión de una ampliación de capital o de un fraccionamiento de las acciones existentes.
En caso de ampliación de capital, los tenedores de acciones y, si existiesen, los tenedores de certificados de inversión, se beneficiarán de un derecho de suscripción preferencial en los certificados de inversión emitidos y el procedimiento a seguir será el de las ampliaciones de capital. Los tenedores de certificados de inversión renunciarán al derecho preferencial en junta especial convocada y decidirán según las normas de la junta general extraordinaria de accionistas. Los certificados de derecho de voto serán repartidos entre los tenedores de acciones y los tenedores de certificados de derecho de voto, si existiesen, a prorrata de sus derechos.
En caso de fraccionamiento, la oferta de creación de los certificados de inversión se efectuará al mismo tiempo y en proporción a su parte del capital a todos los tenedores de acciones. Al final de un plazo establecido por la junta general extraordinaria, el resto de las posibilidades de creación no atribuidas será repartido entre los tenedores de acciones que hayan solicitado beneficiarse de este reparto suplementario proporcionalmente a su parte del capital y, en cualquier caso, hasta el límite de sus solicitudes. Tras este reparto, el resto, si queda, será repartido por el consejo de administración o el directorio, según el caso.
El certificado de derecho de voto deberá revestir la forma nominativa. El certificado de inversión será negociable. Su valor nominal será igual al de las acciones. Cuando las acciones
estén divididas, los certificados de inversión también lo estarán. El certificado del derecho de voto no podrá ser vendido si no es acompañado de un certificado de inversión. Sin
embargo, podrá ser igualmente cedido al portador del certificado de inversión. La cesión conllevará de pleno derecho la reconstitución de la acción en ambos casos. La acción será igualmente reconstituida de pleno derecho en manos del tenedor de un certificado de inversión y de un certificado del derecho de voto. Éste lo declarará a la sociedad en los quince días siguientes. A falta de declaración, la acción se verá privada del derecho de voto hasta que no se proceda a su regularización y durante un plazo de un mes después de dicha regularización.
No podrá ser adjudicado ningún certificado que represente menos de un voto. La junta general determinará las modalidades de adjudicación de los certificados para los derechos que excedan de la cifra exacta en el cociente de la adjudicación.
En caso de fusión o de escisión, los certificados de inversión y los certificados de derecho de voto de una sociedad que desapareciera podrán ser canjeados por acciones de sociedades beneficiarias de la transferencia de patrimonio.
Artículo L228-31 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 35 I, Artículo 36 I Diario Oficial de 26 de junio de 2004)
La junta general extraordinaria de una sociedad cuyas acciones estén admitidas a negociación en un mercado regulado y cuyos certificados de inversión existentes representen un 1% como máximo del capital social podrá decidir, tras examinar el informe del consejo de administración, la reconstitución de los certificados existentes en acciones, y la de los certificados existentes provistos de beneficios especiales en acciones que confieran a sus titulares los mismos beneficios.
La junta general extraordinaria prevista en el párrafo anterior resolverá en las condiciones previstas por el artículo L.225-147 para la aprobación de los beneficios especiales, después de que una junta de titulares de certificados de derechos de voto, convocada y decidiendo según las normas de las juntas especiales de accionistas haya aprobado el proyecto por una mayoría de un 95% de los titulares asistentes o representados. La venta se operará entonces en la sociedad, por la no aplicación excepcional del párrafo sexto del artículo L.228-30, en el precio definido por la junta general extraordinaria mencionada en el párrafo primero del presente artículo.
El precio mencionado en el párrafo anterior será determinado según las modalidades enunciadas en el apartado segundo del artículo 283-1-1 de la Ley nº 66-537 de 24 de julio de 1966 sobre sociedades mercantiles.
Se consignará el importe de la indemnización que provenga de los tenedores no identificados. La reconstitución se operará por la cesión gratuita a los tenedores de certificados de inversión, de los certificados
de derecho de voto correspondientes. Para ello, la sociedad podrá solicitar la identificación de los tenedores de certificados, incluso en ausencia de
disposición estatutaria expresa, según las modalidades previstas por el artículo L.228-2.
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CÓDIGO DE COMERCIO Artículo L228-32 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 35 I, Artículo 36 I Diario Oficial de 26 de junio de 2004)
Los tenedores de certificados de inversión podrán hacer que les sean presentados los documentos sociales en las mismas condiciones que a los accionistas.
Artículo L228-33 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 35 I, Artículo 36 I, II Diario Oficial de 26 de junio de 2004)
En caso de distribución gratuita de acciones, se deberán crear nuevas acciones preferentes sin derecho de voto y provistas de los mismos derechos que los certificados de inversión, y se deberán entregar gratuitamente a los propietarios de antiguos certificados, en proporción al número de acciones nuevas adjudicadas a las acciones antiguas, salvo renuncia por su parte en beneficio del conjunto de los tenedores o de algunos de ellos.
Artículo L228-34 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 35 I, Artículo 36 I, III Diario Oficial de 26 de junio de 2004)
En caso de ampliación de capital en efectivo, con excepción de la ampliación reservada a los trabajadores de una sociedad según lo dispuesto en el artículo L. 225-138-1, se emitirán nuevas acciones preferentes sin derecho de voto y provistas de los mismos derechos que los certificados de inversión, de tal manera que se mantenga la antigua proporción entre acciones ordinarias y certificados de inversión, teniendo en cuenta estas acciones preferentes, tras la ampliación de capital y considerando que ésta se realizará por completo.
Los propietarios de los certificados de inversión tendrán, en proporción al número de títulos que posean, un derecho de preferencia en la suscripción con carácter preferente de las nuevas acciones preferentes. En el transcurso de una junta especial, convocada y decidiendo según las reglas de la junta general extraordinaria de los accionistas, los propietarios de los certificados de inversión podrán renunciar a ese derecho. Las acciones preferentes no suscritas serán repartidas por el consejo de administración o el directorio. La realización de la ampliación de capital se apreciará en la fracción correspondiente a la emisión de acciones. Sin embargo, por excepción a lo establecido en las disposiciones del párrafo primero anterior, cuando los propietarios de los certificados hayan renunciado a su derecho preferencial de suscripción, no se procederá a la emisión de nuevas acciones preferentes.
Artículo L228-35 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 35 I, Artículo 36 I, IV Diario Oficial de 26 de junio de 2004)
En caso de emisión de obligaciones convertibles en acciones, los tenedores de certificados de inversión tendrán, proporcionalmente al número de títulos que posean, un derecho de suscripción preferente. Su junta especial, convocada y resolviendo según las normas de la junta general extraordinaria de accionistas, podrá renunciar a ello.
Estas obligaciones sólo podrán ser convertidas en acciones preferentes sin derecho de voto y deberán disponer de los mismos derechos que los certificados de inversión.
Subsección 3 Las acciones privilegiadas Artículo L228-35-1
Artículo L228-35-1 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 I, Artículo 35 I, Artículo 37 Diario Oficial de 26 de junio de 2004)
En el momento de la constitución de la sociedad o a lo largo de su existencia, podrán crearse acciones privilegiadas que gocen de ventajas con relación a todas las demás, no obstante lo establecido en las disposiciones de los artículos L.225-122 a L.225-125.
Por excepción a lo dispuesto en el artículo L. 225-99, los estatutos o el contrato de emisión podrán prever que la decisión de conversión de las acciones privilegiadas en acciones ordinarias por la junta general extraordinaria no se imponga a los tenedores de dichas acciones.
Subsección 4 Las acciones con dividendo preferente sin derecho de voto Artículos L228-35-2 a
L228-35-11
Artículo L228-35-2 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 II, Artículo 35 I, Artículo 38 Diario Oficial de 26 de junio de 2004)
Se podrán así mismo crear acciones con dividendo preferente sin derecho de voto en las condiciones previstas en los artículos L.228-35-3 a L.228-35-sin perjuicio de las disposiciones de los artículos L.225-122 a L.225-126.
Artículo L228-35-3 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 III, Artículo 35 I, Artículo 38 Diario Oficial de 26 de junio de 2004)
Las acciones con dividendo preferente sin derecho de voto podrán ser creadas por ampliación de capital o por conversión de acciones ordinarias ya emitidas. Podrán ser convertidas en acciones ordinarias.
Las acciones con dividendo preferente sin derecho de voto no podrán representar más de un cuarto del importe total del capital social. Su valor nominal será igual al de las acciones ordinarias, o, eventualmente, de las acciones ordinarias de una de las categorías emitidas anteriormente por la sociedad.
Los titulares de acciones con dividendo preferente sin derecho de voto se beneficiarán de los derechos
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CÓDIGO DE COMERCIO reconocidos a los demás accionistas, salvo el derecho a participar y a votar basado en estas acciones, en las juntas generales de accionistas de la sociedad.
En caso de creación de acciones con dividendo preferente sin derecho de voto por conversión de acciones ordinarias ya emitidas o en caso de conversión de acciones de dividendo preferente sin derecho de voto en acciones ordinarias, la junta general extraordinaria determinará el importe máximo de acciones que se puedan convertir y determinará las condiciones de conversión tras examinar el informe especial del auditor de cuentas. Su decisión sólo será definitiva tras la aprobación por las juntas especiales previstas en los artículos L. 228-35-6 y L. 228-103.
La oferta de conversión será realizada al mismo tiempo y proporcionalmente a su parte en el capital social para todos los accionistas, con excepción de las personas mencionadas en el artículo L.228-35-8. La junta general extraordinaria determinará el plazo durante el cual los accionistas podrán aceptar la oferta de conversión.
Por excepción a lo dispuesto en el artículo L. 225-99, los estatutos o el contrato de emisión podrán prever que la decisión de conversión de las acciones con dividendo preferente sin derecho de voto en acciones ordinarias por la junta general extraordinaria no se imponga para los tenedores de dichas acciones.
Artículo L228-35-4 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 III, Artículo 35 I, Artículo 38 Diario Oficial de 26 de junio de 2004)
Las acciones con dividendo preferente sin derecho de voto darán derecho a un dividendo prioritario deducido del beneficio distribuible del ejercicio antes de cualquier otra asignación. Si el dividendo preferente no pudiese ser íntegramente abonado a causa de una insuficiencia del beneficio distribuible, éste deberá ser repartido hasta el importe debido entre los titulares de acciones con dividendo preferente sin derecho de voto. El derecho al pago del dividendo preferente que no haya sido íntegramente abonado por causa de insuficiencia de beneficios distribuibles será aplazado al ejercicio siguiente y, si procede, a los dos ejercicios posteriores o, si se estableciese en los estatutos, a los ejercicios ulteriores. Este derecho se ejercerá con prioridad al pago del dividendo preferente debido por el presente ejercicio.
El dividendo preferente no podrá ser inferior al primer dividendo citado en el artículo L.232-16 ni al 7,5% del importe desembolsado del capital representado por las acciones con dividendo preferente sin derecho de voto. Estas acciones no podrán dar derecho al primer dividendo.
Tras la deducción del dividendo preferente así como del primer dividendo, si los estatutos lo previeran, o de un dividendo del 5% en beneficio de todas las acciones ordinarias calculado en las condiciones previstas en el artículo L.232-16, las acciones con dividendo preferente sin derecho de voto tendrán proporcionalmente a su importe nominal los mismos derechos que las acciones ordinarias.
En el caso de que las acciones ordinarias sean divididas en categorías que den derechos desiguales al primer dividendo, se entenderá que el importe del primer dividendo previsto en el párrafo segundo del presente artículo es el primer dividendo mayor.
Artículo L228-35-5 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 III, Artículo 35, Artículo 38 Diario Oficial de 26 de junio de 2004)
Cuando los dividendos preferentes que se deban en concepto de tres ejercicios no hayan sido íntegramente abonados, los titulares de las acciones correspondientes adquirirán, proporcionalmente a la fracción del capital representado por esas acciones, un derecho de voto igual al de los otros accionistas.
El derecho de voto previsto en el párrafo anterior subsistirá hasta la finalización del ejercicio en el transcurso del cual el dividendo preferente haya sido íntegramente pagado, incluido el dividendo debido por ejercicios anteriores.
Artículo L228-35-6 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 III, Artículo 35 I, Artículo 38 Diario Oficial de 26 de junio de 2004)
Los titulares de acciones con dividendo preferente sin derecho de voto se reunirán en una junta especial en las condiciones determinadas por decreto adoptado en Conseil d'Etat.
Todo accionista que posea acciones con dividendo preferente sin derecho de voto podrá participar en la junta especial. Cualquier cláusula en contrario se tendrá por no puesta.
La junta especial de accionistas con dividendo preferente sin derecho de voto podrá emitir su opinión antes de cualquier decisión de la junta general. Ésta resolverá entonces por mayoría de votos emitidos por los accionistas asistentes o representados. En el caso en que se proceda a una votación, no se tendrán en cuenta los votos en blanco. El dictamen será remitido a la sociedad. Se dará a conocer a la junta general y será consignado en acta.
La junta especial podrá designar a uno o, si los estatutos lo previeran, a varios mandatarios encargados de representar a los accionistas con dividendo preferente sin derecho de voto en la junta general de los accionistas y eventualmente de exponer allí su opinión antes de proceder a cualquier votación de esta última. Esta opinión será consignada en el acta de la junta general.
Sin perjuicio de lo dispuesto en el artículo L.228-35, toda decisión que modifique los derechos de los titulares de acciones con dividendo preferente sin derecho de voto no será definitiva hasta la aprobación por la junta especial citada en el párrafo primero del presente artículo, que resolverá según las condiciones de quórum y de mayoría previstas en el artículo L.225-99.
Si se obstaculizara la designación de los mandatarios encargados de representar a los accionistas con dividendo preferente sin derecho de voto en la junta general de accionistas, el presidente del Tribunal, resolviendo en procedimiento sumario, podrá designar a un mandatario encargado de esta función previa petición de cualquier
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CÓDIGO DE COMERCIO accionista.
Artículo L228-35-7 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 III, Artículo 35 I, Artículo 38 Diario Oficial de 26 de junio de 2004)
En caso de ampliación de capital por aportaciones dinerarias, los titulares de acciones con dividendo preferente sin derecho de voto se beneficiarán, en las mismas condiciones que los accionistas ordinarios, de un derecho de suscripción preferente. Sin embargo, la junta general extraordinaria podrá decidir, tras el dictamen de la junta especial prevista en el artículo L.228-35-6, que tendrán derecho preferencial a suscribir en las mismas condiciones nuevas acciones con dividendo preferente sin derecho de voto y provistas de los mismos derechos que las acciones con dividendo preferente sin derecho de voto que sean emitidas en la misma proporción.
La adjudicación gratuita de nuevas acciones, tras una ampliación de capital por incorporación de reservas, de beneficios o de primas de emisión, se aplicará a los titulares de acciones con dividendo preferente sin derecho de voto. Sin embargo, la junta general extraordinaria podrá decidir, tras el dictamen de la junta especial prevista en el artículo L. 228-35, que los titulares de acciones con dividendo preferente sin derecho de voto reciban, en lugar de acciones ordinarias, acciones preferentes sin derecho de voto y provistas de los mismos derechos que las acciones con dividendo preferente sin derecho de voto que sean emitidas en la misma proporción.
Cualquier incremento del importe nominal de las acciones existentes tras una ampliación de capital por incorporación de reservas, de beneficios o de primas de emisión, se aplicará a las acciones con dividendo preferente sin derecho de voto. El dividendo preferente previsto en el artículo L.228-35 será entonces calculado, a partir de la realización de la ampliación de capital, por el nuevo importe nominal al que se le añadirá, si procede, la prima de emisión abonada por la suscripción de antiguas acciones.
Artículo L228-35-8 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 III, Artículo 35 I, Artículo 38 Diario Oficial de 26 de junio de 2004)
El presidente y los miembros del consejo de administración, los directores generales, los miembros del directorio y del consejo de supervisión de una sociedad anónima, los gerentes de una sociedad comanditaria por acciones y sus cónyuges no separados legalmente, así como sus hijos menores no emancipados no podrán detentar, sea cual fuere la forma, acciones con dividendo preferente sin derecho de voto emitidas por esta sociedad.
Artículo L228-35-9 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 III, Artículo 35, Artículo 38 Diario Oficial de 26 de junio de 2004)
Se prohibirá amortizar su capital a la sociedad que haya emitido acciones con dividendo preferente sin derecho de voto.
En caso de reducción de capital no motivada por pérdidas, las acciones con dividendo preferente sin derecho de voto serán compradas, antes de las acciones ordinarias, en las condiciones previstas en los últimos párrafos del artículo L.228-35-10 y serán anuladas.
Sin embargo, estas disposiciones no serán aplicables a las reducciones de capital realizadas en aplicación del artículo L.225-209. En ese caso, las disposiciones del artículo L.225-99 no serán aplicables en el caso de que las acciones hayan sido adquiridas en un mercado regulado.
Las acciones con dividendo preferente sin derecho de voto tendrán, en proporción a su importe nominal, los mismos derechos que las otras acciones sobre las reservas distribuidas en el transcurso de la existencia de la sociedad.
Artículo L228-35-10 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 III, Artículo 35 I, Artículo 38 Diario Oficial de 26 de junio de 2004)
Los estatutos podrán otorgar a la sociedad la facultad de exigir el rescate, bien de la totalidad de sus propias acciones con dividendo preferente sin derecho de voto, bien de algunas categorías de ellas, siendo cada categoría determinada por la fecha de su emisión. El rescate de una categoría de acciones con dividendo preferente sin derecho de voto deberá afectar a la totalidad de las acciones de esta categoría. El rescate será decidido por la junta general, quien resolverá en las condiciones establecidas en el artículo L. 225-204. Será de aplicación lo dispuesto en el artículo L. 225-205. Las acciones rescatadas serán anuladas de conformidad con el artículo L. 225-207 y el capital será reducido de pleno derecho.
El rescate de acciones con dividendo preferente sin derecho de voto sólo podrá ser exigido por la sociedad cuando se haya incluido una estipulación especial para ello en los estatutos antes de producirse la emisión de estas acciones.
El valor de las acciones con dividendo preferente sin derecho de voto será determinado en el día del rescate de común acuerdo entre la sociedad y una junta especial de accionistas vendedores, resolviendo según las condiciones de quórum y de mayoría previstas en el artículo L.225-99. En caso de desacuerdo, se aplicará el artículo 1843-4 del Código Civil.
El rescate de acciones con dividendo preferente sin derecho de voto sólo podrá producirse si el dividendo preferente debido a los ejercicios anteriores y al ejercicio en curso hubiera sido abonado íntegramente.
Artículo L228-35-11
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CÓDIGO DE COMERCIO (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 30 III, Artículo 35 I, Artículo 38 Diario Oficial de 26 de junio de 2004)
No se tendrán en cuenta las acciones con dividendo preferente sin derecho de voto para la determinación del porcentaje previsto en el artículo L.233-1 o en el artículo L.232-2.
Sección IV De los títulos participativos
Sección V De las obligaciones Artículos L228-38 a
L228-90
Artículo L228-38 (Disposición nº 2000-1223 de 14 de diciembre de 2000 Artículo 3 Diario Oficial de 16 de diciembre de 2000, con entrada en vigor el 1 de enero de 2002)
Como se establece en el artículo L. 213-5 del Código Monetario Y Financiero: "Artículo L213-5 - Las obligaciones son títulos negociables que, en una misma emisión, conferirán los mismos
derechos de crédito para un mismo valor nominal."
Artículo L228-39 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 102 Diario Oficial de 16 de mayo de 2001)
La emisión de obligaciones por parte de una sociedad por acciones que no haya realizado dos balances válidamente aprobados por los accionistas deberá ser precedida de una comprobación del activo y del pasivo en las condiciones previstas en los artículos L.225-8 y L.225-10.
Se prohibirá la emisión de obligaciones a las sociedades cuyo capital no esté íntegramente desembolsado salvo si las acciones no desembolsadas hubieran sido reservadas a los empleados en aplicación del artículo L.225-187 o del artículo L. 443-5 del Código de Trabajo, y salvo que esté hecha con el fin de adjudicar a los trabajadores las obligaciones emitidas en concepto de participación de éstos en los beneficios de la expansión de la empresa.
Artículo L228-40 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 39 Diario Oficial de 26 de junio de 2004)
El consejo de administración, el directorio, o el o los gerentes tendrán la facultad de decidir o autorizar la emisión de obligaciones, salvo que los estatutos reservaran dicha facultad a la junta general o que ésta decidiera ejercerla.
El consejo de administración podrá delegar en uno o varios de sus miembros, en el director general o, de común acuerdo con este último, en uno o varios directores generales delegados, y en el caso de los establecimientos de crédito en cualquier persona de su elección, las competencias necesarias para realizar en un plazo de un año la emisión de obligaciones y para determinar las modalidades de dicha emisión.
El directorio podrá delegar en su presidente o, de común acuerdo con este último, en uno o varios de sus miembros, y en el caso de los establecimientos de crédito en cualquier persona de su elección, las competencias necesarias para realizar en el mismo plazo la emisión de obligaciones y para determinar las modalidades de dicha emisión.
Las personas designadas rendirán cuentas ante el consejo de administración o ante el directorio en las condiciones previstas por éste último.
Artículo L228-43 Si se hace un llamamiento público al ahorro, la sociedad realizará, antes de la apertura de la suscripción, los
requisitos formales de publicidad sobre las condiciones de emisión según las modalidades determinadas por decreto adoptado en Conseil d'Etat.
Artículo L228-44 La sociedad no podrá constituir ningún tipo de garantía sobre sus propias obligaciones.
Artículo L228-45 En el caso de que la sociedad emisora haya continuado pagando los intereses de obligaciones reembolsables a
consecuencia de un sorteo, estas cantidades no podrán ser objeto de repetición cuando estas obligaciones sean presentadas para su reembolso.
Cualquier cláusula en contrario se tendrá por no puesta.
Artículo L228-46 Los tenedores de obligaciones de una misma emisión serán reagrupados de pleno derecho para la defensa de sus
intereses comunes, en un sindicato que gozará de personalidad civil. Sin embargo, en caso de emisiones sucesivas de obligaciones, la sociedad podrá, cuando una cláusula de cada
contrato de emisión lo prevea, agrupar en un único sindicato a los tenedores de obligaciones que tengan idénticos derechos.
Artículo L228-47 El sindicato estará representado por uno o varios mandatarios elegidos por la junta general de los obligacionistas.
Su número no podrá ser superior a tres. En caso de emisión por llamamiento público al ahorro, los representantes podrán ser designados en el contrato de emisión.
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CÓDIGO DE COMERCIO Artículo L228-48
El mandato de representación del sindicato sólo podrá ser confiado a personas de nacionalidad francesa o ciudadanos de un Estado miembro de la Unión Europea, domiciliadas en territorio francés, y a las sociedades y asociaciones que tengan aquí su sede.
Artículo L228-49 No podrán ser escogidas como representantes del sindicato: 1º La sociedad deudora; 2º Las sociedades que posean al menos la décima parte del capital de la sociedad deudora o de las cuales ésta
posea al menos una décima parte del capital; 3º Las sociedades garantes de todo o de parte de los compromisos de la sociedad deudora; 4º Los gerentes, administradores, miembros del directorio, del consejo de supervisión, directores generales,
auditores de cuentas o empleados de las sociedades citadas en los apartados 1º y 3º, así como sus cónyuges, ascendientes y descendientes;
5º Las personas a las que se les haya prohibido el ejercicio de la profesión de banquero o que hayan sido privadas del derecho de dirigir, administrar o gestionar una sociedad en cualquier concepto.
Artículo L228-50 En caso de urgencia, los representantes del sindicato podrán ser designados por resolución judicial a petición de
cualquier interesado.
Artículo L228-51 Cuando no hayan sido designados en el contrato de emisión, los representantes del sindicato de los tenedores de
obligaciones de un préstamo para el que la sociedad haya hecho llamamiento público al ahorro serán nombrados en el plazo de un año a partir de la apertura de la suscripción y como máximo un mes antes de la primera amortización prevista.
Será la junta general quien haga este nombramiento o, en su defecto, por una resolución judicial a petición de cualquier interesado.
Artículo L228-52 Los representantes del sindicato podrán ser relevados de sus funciones por la junta general de los obligacionistas.
Artículo L228-53 Los representantes del sindicato tendrán, salvo restricción decidida por la junta general de los obligacionistas, el
poder de realizar en nombre del sindicato todos los actos de gestión encaminados a la defensa de los intereses comunes de los obligacionistas.
Artículo L228-54 Los representantes del sindicato, debidamente autorizados por la junta general de obligacionistas, serán los únicos
competentes para ejercer, en nombre de éstos, las acciones de nulidad sobre la constitución de la sociedad o de los actos y acuerdos posteriores a su constitución, así como cualquier acción que tenga por objeto la defensa de los intereses comunes de los obligacionistas, y en especial requerir que se cumpla la medida prevista en el artículo L.237-14.
Los procedimientos judiciales dirigidos contra el conjunto de los obligacionistas de un mismo sindicato sólo podrán ser ejercidos contra el representante de este sindicato.
Cualquier procedimiento emprendido contrariamente a las disposiciones del presente artículo deberá ser declarado no admisible de oficio.
Artículo L228-55 Los representantes del sindicato no podrán inmiscuirse en la gestión de los asuntos sociales. Tendrán acceso a las
juntas generales de los accionistas, pero sin voz ni voto. Tendrán derecho a acceder a los documentos puestos a disposición de los accionistas en las mismas condiciones
que éstos.
Artículo L228-56 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 134 VI Diario Oficial de 2 de agosto de 2003)
La remuneración de los representantes del sindicato tal como haya sido determinada por la junta general o por el contrato de emisión correrá a cargo de la sociedad deudora.
Si no se hubiera fijado dicha remuneración, o si su importe hubiera sido impugnado por la sociedad, se decidirá por resolución judicial.
Sin perjuicio del procedimiento de resarcimiento por responsabilidad civil contra los mandatarios sociales o el representante del sindicato, cualquier decisión que conceda a este último una remuneración contraviniendo las disposiciones del presente artículo será nula.
Artículo L228-57 La junta general de los obligacionistas de un mismo sindicato podrá reunirse en cualquier momento.
Artículo L228-58 La junta general de obligacionistas será convocada por el consejo de administración, el directorio o los gerentes,
por los representantes del sindicato o por los liquidadores durante el período de liquidación.
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CÓDIGO DE COMERCIO Uno o varios obligacionistas, que reúnan al menos una treintava parte de los títulos de un sindicato, podrán dirigir
a la sociedad y al representante del sindicato una petición solicitando la convocatoria de la junta. Si la junta general no hubiese sido convocada en el plazo fijado por decreto adoptado en Conseil d'Etat, los que la
hayan solicitado podrán designar a uno de entre ellos para que inste judicialmente la designación de un mandatario que convoque la junta.
Artículo L228-59 La convocatoria de las juntas generales de obligacionistas será realizada en las mismas condiciones de forma y
plazo que la de las juntas de accionistas. Además, los avisos de convocatoria contendrán menciones especiales que serán determinadas por decreto adoptado en Conseil d'Etat.
Podrá ser anulada toda junta irregularmente convocada. Sin embargo, el procedimiento de nulidad no será admitido cuando todos los obligacionistas del sindicato interesado hayan asistido o hayan sido representados.
Artículo L228-60 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 41 Diario Oficial de 26 de junio de 2004)
El orden del día de las juntas será fijado por el autor de la convocatoria. Sin embargo, uno o varios obligacionistas tendrán la facultad, en las condiciones previstas en el párrafo segundo
del artículo L.228-58, de requerir que se incluya en el orden del día proyectos de resolución. Éstos serán incluidos en el orden del día y sometidos por el presidente de la sesión a votación de la junta.
La junta no podrá deliberar sobre una cuestión que no esté incluida en el orden del día. En segunda convocatoria, el orden del día de la junta no podrá ser modificado.
Artículo L228-60-1 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 4II Diario Oficial de 26 de junio de 2004)
Para cada junta será necesaria una lista de asistencia. Las decisiones que se adopten en cada junta deberán ser consignadas en acta, la cual será firmada por los
miembros y será conservada en el domicilio social, en un registro especial. Las menciones que deberán figurar en la lista de asistencia y en el acta serán determinadas por decreto adoptado
en Conseil d'Etat.
Artículo L228-61 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 42 Diario Oficial de 26 de junio de 2004)
Si existieran varios sindicatos de obligacionistas, no podrán en ningún caso deliberar en el seno de una junta común.
Todo obligacionista tendrá derecho a participar en la junta o a ser representado en ella por un mandatario de su elección.
Todo accionista podrá votar por correspondencia, por medio de un formulario cuyo contenido será definido por decreto adoptado en Conseil d'Etat . Las disposiciones contrarias de los estatutos se tendrán por no puestas.
Para el cálculo del quórum, sólo se tendrán en cuenta los formularios que hayan sido recibidos por la sociedad con antelación a la celebración de la junta, en las condiciones de plazo definidas por decreto adoptado en Conseil d'Etat. Los formularios que no indiquen un sentido determinado para el voto o que expresen una abstención serán considerados como votos negativos.
Si los estatutos lo previeran, serán considerados presentes para el cálculo del quórum y de la mayoría, los obligacionistas que participen en la junta por videoconferencia o por medios de comunicación que permitan su identificación. La naturaleza de los medios técnicos autorizados y las condiciones de aplicación de esta disposición serán determinadas por decreto adoptado en Conseil d'Etat.
Los tenedores de obligaciones amortizadas y no reembolsadas a causa de mora de la sociedad deudora o en razón de un litigio basado en las condiciones de reembolso, podrán participar en la junta.
La sociedad que detente al menos un 10% del capital de la sociedad deudora no podrá votar en la junta con las obligaciones que posee.
Artículo L228-62 No podrán representar a los obligacionistas en las juntas generales, los gerentes, administradores, miembros del
directorio y del consejo de supervisión, directores generales, auditores de cuentas o empleados de la sociedad deudora o de las sociedades garantes de todo o de parte de los compromisos de dicha sociedad, así como su cónyuge, ascendientes o descendientes.
Artículo L228-63 La representación de un obligacionista no podrá ser conferida a las personas a las que se haya prohibido el
ejercicio de la profesión bancaria o que hayan sido privadas del derecho de dirigir, de administrar o de gestionar una sociedad en el concepto que sea.
Artículo L228-64 La junta será presidida por un representante del sindicato. En caso de ausencia de los representantes o en caso de
desacuerdo entre ellos, la junta designará a una persona para ejercer las funciones de presidente. En caso de convocatoria hecha por un mandatario judicial, la junta será presidida por este último.
Si no hubiera representantes del sindicato designados en las condiciones previstas en los artículos L. 228-50 y L.228-51, la primera junta se abrirá bajo la presidencia provisional del tenedor que detente o del mandatario que
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CÓDIGO DE COMERCIO represente el mayor número de obligaciones.
Artículo L.228-65 (Disposición nº 2004-604 de 24 de junio de 2004 art. 43 Diario Oficial de 26 de junio de 2004) (Ley nº 2005-842 de 26 de julio de 2005 art. 11 II Diario Oficial de 27 de julio de 2005)
I. - La junta general deliberará sobre cualquier medida que tenga por objeto asegurar la defensa de los obligacionistas y la ejecución del contrato de préstamo así como sobre cualquier propuesta que tienda a la modificación del contrato y en especial:
1º Sobre cualquier propuesta relativa a la modificación del objeto o de la forma de la sociedad; 2º Sobre cualquier propuesta, bien de compromiso, bien de transacción sobre derechos en litigio o que hayan sido
objeto de resoluciones judiciales; 3º Sobre las propuestas de fusión o de escisión de la sociedad en los casos previstos en los artículos L.236-14 y
L.236-18; 4º Sobre cualquier propuesta relativa a la emisión de obligaciones que conlleven derechos preferentes a la deuda
de los obligacionistas que componen el sindicato; 5º Sobre cualquier propuesta relativa al abandono total o parcial de las garantías conferidas a los obligacionistas, al
aplazamiento del vencimiento de pago de los intereses y a la modificación de las condiciones de amortización o de los tipos de interés;
6° Sobre cualquier proyecto de traslado del domicilio social de una sociedad europea a otro Estado miembro. II. - La junta general deliberará en las condiciones de quórum y de mayoría previstas en los apartados segundo y
tercero del artículo L.225-98. Decidirá por mayoría de dos tercios de los votos de los que dispongan los tenedores que estén presentes o representados.
Artículo L228-66 El derecho de voto en las juntas generales de obligacionistas pertenecerá al nudo propietario.
Artículo L228-67 El derecho de voto vinculado a las obligaciones deberá ser proporcional a la fracción del importe del préstamo que
éstas representen. Cada obligación dará derecho por lo menos a un voto.
Artículo L228-68 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 XIV Diario Oficial de 26 de junio de 2004)
Las juntas no podrán incrementar las cargas de los obligacionistas ni establecer un tratamiento desigual entre los obligacionistas de un mismo sindicato.
No podrán decidir la conversión de las obligaciones en acciones, en base a las disposiciones del artículo L.228-106.
Cualquier disposición contraria se tendrá por no puesta.
Artículo L228-69 Cualquier obligacionista tendrá derecho, en las condiciones y plazos determinados por decreto adoptado en
Conseil d'Etat, a acceder al texto de las resoluciones que sean propuestas y a los informes que se presenten en la junta general.
Tendrá, en todo momento, el mismo derecho en lo referente a las actas y listados de presencia en las juntas generales del sindicato al que pertenece
Artículo L228-70 Los obligacionistas no serán admitidos individualmente a ejercer un control sobre las operaciones de la sociedad o
a solicitar información sobre los documentos sociales.
Artículo L228-71 La sociedad deudora soportará los gastos de convocatoria, de reunión de las juntas generales, de publicidad de
sus decisiones así como los gastos que se deriven del procedimiento previsto en el artículo L.228-50. Los demás gastos de gestión decididos en la junta general del sindicato podrán ser deducidos de los intereses pagados a los obligacionistas y su importe podrá ser determinado por resolución judicial.
Las retenciones citadas en el párrafo anterior no podrán sobrepasar la décima parte del interés anual.
Artículo L228-72 Si no se aprobase por parte de la junta general las propuestas citadas en los apartados 1° y 4° del punto I del
artículo L.228-65, el consejo de administración, el directorio o los gerentes de la sociedad deudora podrán no tenerlas en cuenta, ofreciendo reembolsar las obligaciones en el plazo determinado por decreto adoptado en Conseil d'Etat.
La decisión del consejo de administración, del directorio o de los gerentes de no tener en cuenta las decisiones de la junta de obligacionistas será publicada en las condiciones fijadas por decreto adoptado en Conseil d'Etat, que determinará igualmente el plazo durante el cual se deberá solicitar el reembolso.
Artículo L.228-73 (Ley nº 2005-842 de 26 de julio de 2005 art. 11 II Diario Oficial de 27 de julio de 2005)
Si la junta general de obligacionistas de la sociedad absorbida no hubiera aprobado una de las propuestas citadas en los apartados 3º y 6° del punto I del artículo L.228-65 o si no hubiera podido deliberar válidamente por falta del quórum requerido, el consejo de administración, el directorio o los gerentes de la sociedad deudora podrán no tenerla
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CÓDIGO DE COMERCIO en cuenta. La decisión será publicada en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Los obligacionistas conservarán entonces su condición en la sociedad absorbente o en las sociedades beneficiarias de las aportaciones que resulten de la escisión, según el caso.
Sin embargo, la junta general de obligacionistas podrá dar orden a los representantes del sindicato de impugnar la operación en las condiciones y con los efectos previstos en el artículo L.236-14.
Artículo L228-74 Las obligaciones rescatadas por la sociedad emisora, así como las obligaciones que hayan sido designadas por
sorteo y reembolsadas, serán anuladas y no podrán ser puestas de nuevo en circulación.
Artículo L228-75 En ausencia de disposiciones especiales del contrato de emisión, la sociedad no podrá imponer a los
obligacionistas el reembolso anticipado de las obligaciones.
Artículo L228-76 En caso de disolución anticipada de la sociedad, no provocada por una fusión o por una escisión, la junta general
de obligacionistas podrá exigir el reembolso de las obligaciones y la sociedad podrá imponerlo a los mismos obligacionistas.
Artículo L228-77 En caso de emisión de obligaciones provistas de garantías particulares, éstas serán constituidas por la sociedad
antes de la emisión, por cuenta del sindicato de obligacionistas. La aceptación se sobreentenderá por el simple hecho de la suscripción. La aceptación tendrá efectos retroactivos desde la fecha de la inscripción para las garantías sometidas a inscripción, y a la fecha de su constitución para las demás garantías.
Artículo L228-78 El presidente del consejo de administración, el representante del directorio o el gerente, tras la autorización del
órgano social habilitado para ello por los estatutos conferirá las garantías previstas en el artículo L.228-77.
Artículo L228-79 Las garantías serán constituidas en un acta especial. Los requisitos formales de publicidad de dichas garantías
deberán ser cumplidos antes de cualquier suscripción, por cuenta del sindicato en formación de obligacionistas. En el plazo de seis meses a contar desde la apertura de la suscripción, el resultado de ésta será constatado en una
escritura pública por el representante de la sociedad. Las modalidades de la inscripción y de la renovación de la inscripción de las garantías serán determinadas por
decreto adoptado en Conseil d'Etat. Los representantes del sindicato velarán, bajo su responsabilidad, para que se observen las disposiciones relativas
a la renovación de la inscripción.
Artículo L228-80 La cancelación de las inscripciones se producirá en las condiciones determinadas por decreto adoptado en Conseil
d'Etat.
Artículo L228-81 El presidente del consejo de administración, el representante del directorio o el gerente, tras la autorización del
órgano social habilitado para ello por los estatutos conferirán las garantías constituidas con posterioridad a la emisión de las obligaciones. Éstas serán aceptadas por el representante del sindicato.
Artículo L228-82 Se prohibirá la emisión de obligaciones cuyo reembolso esté garantizado por una sociedad de capitalización.
Artículo L228-83 En caso de suspensión de pagos o de liquidación judicial de la sociedad, los representantes del sindicato de
obligacionistas estarán habilitados para actuar en nombre de ésta.
Artículo L.228-84 (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los representantes del sindicato de obligacionistas declararán en los procedimientos de saneamiento judicial o de liquidación judicial sobre el pasivo de la sociedad, para todos los obligacionistas de este sindicato, sobre el importe en capital de las obligaciones que quedan en circulación, para informar sobre el incremento por los cupones de los intereses vencidos y no pagados, cuyo desglose detallado será establecido por el mandatario judiciaL.No estarán obligados a presentar los títulos de sus mandatos en apoyo de esta declaración
Artículo L.228-85 (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En ausencia de declaración por parte de los representantes del sindicato, una resolución judicial designará a instancia del mandatario judicial, a un mandatario encargado de asegurar la representación del sindicato en las operaciones de saneamiento judicial o de liquidación judicial y de declarar la deuda.
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CÓDIGO DE COMERCIO Artículo L.228-86 (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los representantes del sindicato serán consultados por el mandatario judicial sobre las modalidades de pago de las obligaciones propuestas en aplicación del artículo L.621-59. Darán su acuerdo en el sentido definido por la junta general ordinaria de obligacionistas, convocada a tal fin.
Artículo L228-87 Los gastos derivados de la representación de los obligacionistas en el transcurso del procedimiento judicial de
suspensión de pagos de la sociedad corresponderán a ésta y serán considerados como gastos de administración judicial.
Artículo L228-88 La suspensión de pagos o la liquidación judicial de la sociedad no pondrá fin al funcionamiento ni al papel que
desempeña la junta general de obligacionistas.
Artículo L228-89 En caso de cierre por insuficiencia de activo, el representante del sindicato o el mandatario judicial designado,
retomará el ejercicio de los derechos de los obligacionistas.
Artículo L228-90 Salvo cláusula en contrario en el contrato de emisión, las disposiciones de los artículos L.228-46 a L.228-69,
L.228-71, L.228-72, L.228-76 a L.228-81 y L.228-83 a L.228-89 no serán aplicables a las sociedades cuyos préstamos estén sometidos a un régimen legal especial, ni a los préstamos garantizados por el Estado, por los departamentos, por los municipios o por las entidades públicas ni a los préstamos emitidos en el extranjero por sociedades francesas.
Sección VI De los otros valores mobiliarios que dan derecho a la adjudicación de títulos
representativos de una porción del capital Artículos L228-91 a L228-106
Subsección 1 Disposiciones generales Artículos L228-91 a
L228-97
Artículo L228-91 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 44, Artículo 45 Diario Oficial de 26 de junio de 2004)
Las sociedades por acciones podrán emitir valores mobiliarios que den acceso al capital o que den derecho a la adjudicación de títulos de crédito.
Los accionistas de una sociedad que emitan valores mobiliarios que dan acceso al capital tendrán un derecho preferente en la suscripción de dichos valores mobiliarios proporcional al importe de sus valores mobiliarios.
Este derecho estará regulado por las disposiciones aplicables al derecho preferente de suscripción vinculado a los títulos de capital de conformidad con los artículos L. 225-132 y L. 225-135 a L. 225-140.
El contrato de emisión podrá prever que estos valores y los títulos de capital o de créditos a los que den derecho estos valores mobiliarios, sólo puedan ser cedidos y negociados conjuntamente. En dicho caso, si el título emitido originariamente fuera un título de capital, no será considerado como perteneciente a la categoría prevista en el artículo L. 225-99.
Los títulos de capital no podrán ser convertidos o transformados en valores mobiliarios representativos de créditos. Cualquier cláusula en contrario se tendrá por no puesta.
Los valores mobiliarios emitidos en aplicación del presente artículo no constituirán una promesa de acción para la aplicación del apartado segundo del artículo L. 228-10.
Artículo L228-92 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 44, Artículo 46 Diario Oficial de 26 de junio de 2004)
Las emisiones de valores mobiliarios que den acceso al capital o den acceso a la adjudicación de títulos de créditos, reguladas por el artículo L.228-91, serán autorizadas por la junta general extraordinaria de accionistas con arreglo a los artículos L. 225-129 a L. 225-129-6. Ésta se pronunciará tras examinar del informe del consejo de administración o del directorio y el informe especial del auditor de cuentas.
Artículo L228-93 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 44, Artículo 47 Diario Oficial de 26 de junio de 2004)
Una sociedad por acciones podrá emitir valores mobiliarios que den acceso al capital de la sociedad que posea directa o indirectamente más de la mitad de su capital o de la sociedad de la que posea directa o indirectamente más de la mitad del capital.
Bajo pena de nulidad, la emisión deberá ser autorizada por la junta general extraordinaria de la sociedad que vaya a emitir dichos valores mobiliarios y por la junta general extraordinaria de la sociedad en el seno de la cual se ejercen los derechos, en las condiciones previstas por el artículo L. 228-92.
Artículo L228-95 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 134 VII Diario Oficial de 2 de agosto de 2003)
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CÓDIGO DE COMERCIO (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 44, Artículo 48 Diario Oficial de 26 de junio de 2004)
Serán nulos los acuerdos tomados infringiendo los apartados segundo y tercero del artículo L. 228-91.
Artículo L228-97 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 61 Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 44 Diario Oficial de 26 de junio de 2004)
En el momento de la emisión de valores mobiliarios representativos de créditos de la sociedad emisora, incluyendo aquellos que den derecho a suscribir o a adquirir un valor mobiliario, podrá estipularse que estos valores mobiliarios no sean reembolsados hasta haber desinteresado a los otros acreedores, excluyendo o incluyendo a los titulares de préstamos participativos y de títulos participativos, sin perjuicio de lo dispuesto en el artículo L. 228-36 del presente código en los artículos L. 313-13 y siguientes del Código Monetario y Financiero.
También podrá estipularse un orden de prioridad en los pagos dentro de estas categorías de valores mobiliarios.
Subsección 2 Disposiciones relativas a los valores mobiliarios que dan acceso al capital Artículos L228-98 a
L228-106
Artículo L228-98 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 49 Diario Oficial de 26 de junio de 2004)
A partir de la emisión de valores mobiliarios que dan acceso al capital, la sociedad que vaya a adjudicar estos títulos no podrá modificar su forma o su objeto, a menos que esté autorizada a ello por el contrato de emisión o en las condiciones previstas en el artículo L. 228-103.
Tampoco podrá modificar las reglas de reparto de sus beneficios, ni amortizar su capital, a menos que esté autorizada a ello por el contrato de emisión o en las condiciones previstas en el artículo L. 228-103 y siempre y cuando tome las disposiciones necesarias para mantener los derechos de los titulares de los valores mobiliarios que dan acceso al capital en las condiciones definidas en el artículo L. 228-99.
Sin embargo, siempre y cuando tome las disposiciones mencionadas en el párrafo anterior, podrá crear acciones preferentes.
En caso de reducción de capital motivada por pérdidas y realizada por la disminución del importe nominal de los títulos o del número de títulos que integran el capital, los derechos de los titulares de valores mobiliarios que dan acceso al capital serán reducidos como consecuencia de esto, como si dichos titulares hubiesen ejercido dichos derechos antes de la fecha en que la reducción de capital se hubiera hecho definitiva.
Artículo L228-99 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 49 Diario Oficial de 26 de junio de 2004)
La sociedad que vaya a adjudicar los títulos de capital o los valores mobiliarios que dan acceso al capital, deberá adoptar las medidas necesarias para proteger los intereses de los titulares si decidiera proceder a la emisión, bajo cualquier forma, de nuevos títulos de capital con derecho de suscripción preferente reservado a sus accionistas, o si decidiera distribuir reservas, en efectivo o en especie, y primas de emisión o modificar el reparto de sus beneficios mediante la creación de acciones preferentes.
En tal caso, deberá: 1º Bien, crear las condiciones para que los titulares de estos derechos puedan ejercerlos, si el periodo previsto
para el contrato de emisión aún no hubiera empezado, de tal manera que dichos titulares puedan participar inmediatamente en las operaciones mencionadas en el apartado primero o beneficiarse de estos derechos;
2º Bien, tomar las disposiciones que, en caso de que los titulares ejercieran sus derechos ulteriormente, les permitieran suscribir con carácter preferente los nuevos valores mobiliarios emitidos, u obtener la adjudicación gratuita de éstos, o recibir dinero en efectivo o bienes semejantes a los que se hubieran distribuido, en las mismas cantidades o proporciones y en las mismas condiciones, salvo en materia de disfrute, que si hubieran sido accionistas en dichas operaciones;
3º Bien, proceder a un reajuste de las condiciones de suscripción, de las bases de conversión, de las modalidades de canje o adjudicación inicialmente previstas para tener en cuenta la incidencia de las operaciones mencionadas en el apartado primero.
Salvo estipulación diferente del contrato de emisión, la sociedad podrá adoptar de manera simultánea las medidas previstas en los párrafos 1º y 2º. En todos los casos, podrá sustituirlas por el reajuste autorizado en el párrafo 3º. Este reajuste estará organizado por el contrato de emisión cuando los títulos de capital no estén admitidos a negociación en un mercado regulado.
Las condiciones de aplicación del presente artículo serán establecidas por decreto adoptado en Conseil d'Etat.
Artículo L228-100 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 49 Diario Oficial de 26 de junio de 2004)
Lo dispuesto en los artículos L. 228-98 y L. 228-99 será aplicable mientras existan derechos vinculados a cada uno de los elementos de los valores mobiliarios mencionados en estos artículos.
Artículo L228-101 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 49 Diario Oficial de 26 de junio de 2004)
Si la sociedad que vaya a emitir los títulos de capital fuera absorbida por otra sociedad o fusionara con una o varias sociedades para constituir una nueva sociedad, o procediera a una escisión, los titulares de los valores mobiliarios que
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CÓDIGO DE COMERCIO dan acceso al capital ejercerán sus derechos en la o las sociedades beneficiarias de las aportaciones. No será aplicable el artículo L. 228-65, salvo estipulación en contrario del contrato de emisión.
El número de títulos de capital de la o las sociedades absorbentes o nuevas a los que pueden aspirar estos titulares será determinado modificando el número de títulos que se prevé emitir o atribuir al contrato de emisión en función del número de acciones a crear por la o las sociedades beneficiarias de las aportaciones. El auditor de aportaciones emitirá un dictamen sobre el número de títulos determinado con arreglo a este procedimiento.
La aprobación del proyecto de fusión o de escisión por los accionistas de la o las sociedades beneficiarias de las aportaciones o de la o las sociedades nuevas conllevará la renuncia por parte de los accionistas y, en su caso, por parte de los titulares de los certificados de inversión de dichas sociedades, al derecho de suscripción preferente mencionado en el artículo L. 228-35 o, en el apartado segundo del artículo L. 228-91, en beneficio de los titulares de valores mobiliarios que dan acceso al capital de manera diferida.
La o las sociedades beneficiarias de las aportaciones o la o las sociedades nuevas sustituirán de pleno derecho a la sociedad emisora en sus obligaciones hacia los titulares de dichos valores mobiliarios.
Artículo L228-102 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 49 Diario Oficial de 26 de junio de 2004)
Salvo estipulación especial del contrato de emisión y fuera del caso de disolución anticipada que no sea el resultado de una fusión o de una escisión, la sociedad no podrá imponer a los titulares de valores mobiliarios que dan acceso al capital el rescate o el reembolso de sus derechos.
Artículo L228-103 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 49 Diario Oficial de 26 de junio de 2004) (Disposición nº 2004-1343 de 9 de diciembre de 2004 Artículo 78 XXVII Diario Oficial de 10 de diciembre de 2004)
Los titulares de valores mobiliarios que dan acceso al capital de manera diferida tras la separación, en su caso, de los derechos del título originario en aplicación de la presente sección, serán reagrupados de pleno derecho para la defensa de sus intereses comunes en un sindicato que gozará de personalidad civil y estará sujeto a disposiciones idénticas a las previstas para las obligaciones en los artículos L. 228-47 a L. 228-64, L. 228-66 y L. 228-90. Se constituirá, si procede, un sindicato distinto para cada naturaleza de títulos que confieran los mismos derechos.
Las juntas generales de los titulares de dichos valores mobiliarios estarán encargadas de autorizar cualquier modificación al contrato de emisión y de resolver sobre cualquier asunto relativo a las condiciones de suscripción o de adjudicación de títulos de capital determinadas en el momento de la emisión.
Cada valor mobiliario que da acceso al capital dará derecho a un voto. Las condiciones de quórum y de mayoría serán las determinadas en los apartados segundo y tercero del artículo L.225-96.
Los gastos derivados del funcionamiento de la junta y, de manera general, todos los gastos inherentes al funcionamiento de los diferentes sindicatos correrán a cargo de la sociedad que vaya a emitir o a adjudicar nuevos valores mobiliarios representativos de su capital social.
Cuando los valores mobiliarios emitidos según lo dispuesto en la presente sección sean obligaciones destinadas a ser convertidas o reembolsadas en títulos de capital o canjeadas por títulos de capital, los dispuesto en los apartados segundo, tercero y cuarto del presente artículo será de aplicación al sindicato creado en aplicación del artículo L. 228-46.
NOTA: Estas disposiciones serán de aplicación en Mayotte, en Nueva Caledonia y en las islas Wallis y Futuna.
Artículo L228-104 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 49 Diario Oficial de 26 de junio de 2004)
Serán nulos los acuerdos o estipulaciones que infrinjan los artículos L.228-98 a L.228-101 y L. 228-103.
Artículo L228-105 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 49 Diario Oficial de 26 de junio de 2004)
Los titulares de valores mobiliarios que dan acceso al capital dispondrán, ante la sociedad emisora de títulos que reciban y en las condiciones establecidas por decreto adoptado en Conseil d'Etat, del derecho de comunicación de los documentos sociales que la sociedad remite o pone a disposición de los accionistas o titulares de certificados de inversión.
Cuando los derechos de adjudicación de una parte proporcional del capital social se incorporen o vinculen a obligaciones, el derecho de comunicación será ejercido por los representantes del sindicato de obligacionistas, de conformidad con lo dispuesto en el artículo L. 228-55.
Tras la separación de estos derechos del título originario, el derecho de comunicación será ejercido por los representantes del sindicato creado de conformidad con lo dispuesto en el artículo L. 228-103.
En todos los casos, los representantes de los diferentes sindicatos podrán participar en la junta general, pero sin derecho a voto. No podrán inmiscuirse, en ningún caso, en la gestión de los asuntos sociales.
Artículo L228-106 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 49 Diario Oficial de 26 de junio de 2004)
Cuando se abra un procedimiento de suspensión de pagos a una sociedad emisora de valores mobiliarios que dan acceso al capital en las condiciones del artículo L. 228-91, el plazo previsto para ejercer el derecho a la adjudicación de una parte proporcional del capital social quedará abierto a partir de la resolución judicial que disponga el plan de continuación, en función de cada titular y en las condiciones previstas por dicho plan.
CAPITULO IX
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CÓDIGO DE COMERCIO De la sociedad europea Artículos L229-1 a
L229-15
Artículo L.229-1 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Las sociedades europeas inscritas en Francia en el Registro de Comercio y de Sociedades tendrán personalidad jurídica desde su inscripción.
La sociedad europea se regirá por las disposiciones del Reglamento (CE) N° 2157/2001 del Consejo de 8 de octubre de 2001, por el que se aprueba el estatuto de la Sociedad Anónima Europea, por las disposiciones del presente capítulo y por las disposiciones aplicables a las sociedades anónimas no contrarias a estas.
La sociedad europea estará sujeta a lo dispuesto en el artículo L.210-3. La sede social estatutaria y la administración central de la sociedad europea no podrán disociarse.
Artículo L.229-2 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Cualquier sociedad europea legalmente inscrita en el Registro de Comercio y de Sociedades podrá trasladar su domicilio social a otro Estado miembro. Deberá para ello presentar un proyecto de traslado. Dicho proyecto será depositado en la secretaría del Tribunal en cuya circunscripción esté registrada la sociedad y será objeto de publicidad en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
El traslado de domicilio social será decidido por la junta general extraordinaria con arreglo a las condiciones establecidas en el artículo L.225-96 y estará sujeto a la ratificación de las juntas especiales de accionistas mencionadas en los artículos L.225-99 y L.228-35.
En caso de oposición a dicha operación, los accionistas podrán obtener el recate de sus acciones con arreglo las condiciones establecidas por decreto adoptado en Conseil d'Etat.
El proyecto de traslado de domicilio social será sometido a las juntas especiales de tenedores de certificados de inversión que decidirán conforme a las normas de la junta general de accionistas, a menos que la sociedad adquiera esos títulos, previa solicitud de su parte, y que esta adquisición haya sido aceptada por su junta especiaL.La oferta de adquisición será objeto de publicidad en las condiciones establecidas por decreto adoptado en Conseil d'Etat. Cualquier poseedor de certificados de inversión que no haya cedido sus títulos dentro del plazo fijado por decreto adoptado en Conseil d'Etat seguirá siendo su poseedor siempre que proceda al canje de sus certificados de inversión y de derecho de voto por acciones.
El proyecto de traslado se someterá a la aprobación de las juntas de obligacionistas de la sociedad, a menos que se ofrezca a dichos obligacionistas, previa solicitud de su parte, el reembolso de los títulos. La oferta de reembolso será objeto de publicidad en las condiciones establecidas por decreto adoptado en Conseil d'Etat. Cualquier obligacionista que no haya solicitado el reembolso dentro el plazo fijado por decreto adoptado en Conseil d'Etat conservará su condición en la sociedad con arreglo a las condiciones establecidas en el proyecto de traslado.
Los acreedores no obligacionistas de la sociedad que traslade su domicilio social y cuyo crédito sea anterior al traslado de la sede podrán impugnar el mismo dentro del plazo fijado por decreto adoptado en Conseil d'Etat. Una resolución judicial desestimará esta oposición u ordenará, bien el reembolso de los créditos, bien la constitución de garantías, si así lo ofreciera la sociedad que trasladara su domicilio y si se juzgara que dichas garantías son suficientes. En ausencia de reembolso de los créditos o de constitución de las garantías exigidas, el traslado de domicilio social no será oponible frente a dichos acreedores. La impugnación formulada por un acreedor no tendrá por efecto prohibir la continuación de las operaciones de traslado del domicilio sociaL.Las disposiciones del presente párrafo no serán un obstáculo para la aplicación de los convenios que autoricen al acreedor exigir el reembolso inmediato de su crédito en caso de traslado del domicilio social.
Un notario expedirá un certificado en el que se dé fe del buen cumplimiento de los actos y formalidades previos al traslado de domicilio social.
Artículo L.229-3 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
I. - El control de la legalidad de la fusión será efectuado, en cuanto al procedimiento relativo a cada una de las sociedades que fusionen, por el Secretario del Tribunal en cuya circunscripción esté registrada la sociedad, de conformidad con lo dispuesto en el artículo L.236-6.
El control de la legalidad de la fusión será efectuado, en cuanto al procedimiento relativo a la realización de la fusión y a la constitución de la sociedad europea, por un notario.
Con este fin, cada sociedad que fusione deberá remitir al notario el certificado mencionado en el artículo 25 del Reglamento (CE) N° 2157/2001 del Consejo de 8 de octubre de 2001 arriba mencionado, dentro de un plazo de seis meses a contar desde la fecha de su expedición, así como una copia del proyecto de fusión aprobado por la sociedad.
El notario comprobará en especial que la sociedades que fusionen hayan aprobado un proyecto de fusión en los mismos términos y que las modalidades relativas a la implicación de los trabajadores han sido establecidas de conformidad con lo dispuesto en los artículos L.439-25 a L.439-45 del Código de Trabajo.
El notario comprobará asimismo que la constitución de la sociedad europea creada por fusión cumpla las condiciones establecidas por las disposiciones legales francesas.
II. - Las causas de nulidad de los acuerdos tomados por alguna de las juntas que hubieran decidido la operación de fusión, con arreglo al derecho aplicable a la sociedad anónima, o los incumplimientos en materia de control de legalidad serán causas de disolución de la sociedad europea.
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CÓDIGO DE COMERCIO Cuando sea posible subsanar la irregularidad susceptible de provocar la disolución, el Tribunal que conozca de la
acción de disolución de una sociedad europea creada por fusión concederá a la sociedad en cuestión un plazo para regularizar su situación.
Las acciones de disolución de la sociedad europea prescribirán a los seis meses a partir de la fecha de la última inscripción en el Registro de Comercio y de Sociedades que hubiera hecho necesaria la operación.
Cuando se declare la disolución de la sociedad europea, se procederá a su liquidación de conformidad con lo dispuesto en los estatutos y en el capítulo VII del título III del presente libro.
Cuando una resolución judicial que declare la disolución de una sociedad europea por una de las causas previstas en el párrafo sexto del presente artículo tenga carácter definitivo, dicha resolución será objeto de publicidad en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Artículo L.229-4 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
El Fiscal de la República será la autoridad competente para oponerse, de conformidad con lo dispuesto en el apartado 14 del artículo 8 y en el artículo 19 del Reglamento (CE) n° 2157/2001 del Consejo de 8 de octubre de 2001 arriba mencionado, al traslado de domicilio social de una sociedad europea registrada en Francia que conllevara un cambio del derecho aplicable, así como a la constitución de una sociedad europea por fusión que implicara a una sociedad regida por el derecho francés.
Artículo L.229-5 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Las sociedades que impulsen la operación de constitución de una sociedad europea holding deberán elaborar un proyecto común de constitución de sociedad europea.
Dicho proyecto será depositado en la secretaría del Tribunal en cuya circunscripción estén registradas las sociedades y será objeto de publicidad en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Uno o varios auditores para la constitución de una sociedad europea holding, nombrados por resolución judicial, elaborarán bajo su responsabilidad un informe destinado a los accionistas de cada sociedad, cuyo modelo y características serán definidos por decreto adoptado en Conseil d'Etat.
Previo acuerdo entre las sociedades que impulsen la operación, el o los auditores podrán elaborar un informe escrito destinado a los accionistas del conjunto de las sociedades implicadas en la misma.
Lo dispuesto en los párrafos tercero y cuarto del artículo L.236-9 y en los artículos L.236-13 y L.236-14 será de aplicación a la constitución de una sociedad europea holding.
Artículo L.229-6 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Por excepción a la segunda frase del artículo L.225-1, una sociedad europea podrá constituir una sociedad europea de la que sea la única accionista. Estará sujeta a las disposiciones aplicables a la sociedad europea y a las relativas a la sociedad de responsabilidad limitada con un único socio de los artículos L.223-5 y L.223-31.
En esta hipótesis, el accionista único ejercerá los poderes conferidos a la junta general. En el caso de una sociedad europea unipersonal, no se aplicará lo dispuesto en los artículos L.225-25, L.225-26,
L.225-72 y L.225-73 a los administradores o miembros del consejo de supervisión de la misma.
Artículo L.229-7 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
La dirección y la administración de la sociedad europea se regirán por lo dispuesto en la sección 2 del capítulo V del presente título, con excepción del párrafo primero de los artículos L.225-37 y L.225-82 y del párrafo cuarto del artículo L.225-64.
No obstante, por excepción al artículo L.225-62, en caso de vacante en un cargo del directorio, el consejo de supervisión podrá nombrar a uno de sus miembros para ejercer las funciones de miembro del directorio por un periodo máximo fijado por decreto adoptado en Conseil d'Etat. Durante dicho periodo, se suspenderá en sus funciones al miembro del directorio en cuestión.
Lo dispuesto en el párrafo primero del artículo L.225-17, en el párrafo segundo del artículo L.225-22, en el artículo L.225-69 y en el párrafo segundo del artículo L.225-79 no obstarán al ejercicio de participación de los trabajadores definido en el artículo L.439-25 del Código de Trabajo.
Cada miembro del consejo de supervisión podrá hacerse remitir por el presidente del directorio los documentos que estime necesarios para el cumplimiento de su misión.
La sociedad europea será dirigida por un directorio compuesto por un máximo de siete miembros. Los estatutos deberán prever normas similares a las recogidas en los artículos L.225-38 a L.225-42 y L.225-86 a
L.225-90. Sin embargo, cuando se trate de una sociedad de las citadas en el artículo L.229-6, la mención en el registro de deliberaciones equivaldrá a la aprobación del convenio.
Artículo L.229-8 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Las juntas generales de la sociedad europea estarán sujetas a las normas establecidas en la sección 3 del capítulo V del presente título, siempre que estas sean compatibles con el Reglamento (CE) N° 2157/2001 del Consejo, de 8 de octubre de 2001, arriba mencionado.
Artículo L.229-9
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CÓDIGO DE COMERCIO (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Si la sociedad europea ya no tuviera su administración central en Francia, cualquier persona interesada podrá solicitar al Tribunal la regularización de la situación mediante el traslado del domicilio social o el restablecimiento de la administración social en el domicilio social en Francia, bajo multa coercitiva si fuera necesario.
El Tribunal fijará un plazo máximo dentro del cual se deba llevar a cabo la regularización. En ausencia de regularización a la expiración de dicho plazo, el Tribunal podrá ordenar la liquidación de la
sociedad con arreglo a las condiciones establecidas en los artículos L.237-1 a L.237-31. El secretario del Tribunal remitirá la resolución judicial al Fiscal de la República. El juez indicará en la sentencia
que la resolución ha sido remitida por el secretario del TribunaL. En caso de constatarse un traslado a Francia de la administración central de una sociedad europea registrada en
otro Estado miembro, infringiendo el artículo 7 del Reglamento (CE) n° 2157/2001 del Consejo, de 8 de octubre de 2001 arriba mencionado, el Fiscal de la República del Tribunal de Grande Instance en cuya circunscripción se hallara la administración central, deberá informar inmediatamente de ello al Estado miembro la sede social estatutaria.
En caso de constatarse un traslado a otro Estado miembro de la administración central de una sociedad europea registrada en Francia, infringiendo el artículo 7 del Reglamento (CE) n° 2157/2001 del Consejo, de 8 de octubre de 2001 arriba mencionado, las autoridades de dicho Estado deberán informar inmediatamente de ello al Fiscal de la República del Tribunal de Grande Instance en cuya circunscripción estuviera registrada a sociedad.
Artículo L.229-10 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Cualquier sociedad europea podrá transformarse en sociedad anónima si, en el momento de la transformación, tuviera dos años de existencia legal y hubiera obtenido la aprobación del balance de sus dos primeros ejercicios.
La sociedad elaborará un proyecto de transformación de la sociedad en sociedad anónima. El proyecto será depositado en la secretaría del Tribunal en cuya circunscripción tuviera el domicilio social dicha sociedad y será objeto de publicidad en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Uno o varios auditores para la transformación, nombrados por resolución judicial, elaborarán bajo su responsabilidad un informe destinado a los accionistas de la sociedad en transformación, en el que certifican que los fondos propios son al menos iguales al capital sociaL.Los mismos serán sometidos a las incompatibilidades previstas en el artículo L.822-11.
La transformación en sociedad anónima se decidirá con arreglo a lo dispuesto en los artículos L.225-96 y L.225-99.
Artículo L.229-11 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Los estatutos de una sociedad europea que no realice llamamiento público al ahorro podrán imponer restricciones a la libre transferibilidad de las acciones, sin que dichas restricciones tengan por efecto una inalienabilidad de las acciones superior a diez años.
Cualquier cesión efectuada infringiendo las cláusulas estatutarias será nula. Esta nulidad será oponible al cesionario o a sus derechohabientes. La misma podrá ser regularizada mediante decisión tomada por unanimidad de los accionistas que no son parte del contrato o de la operación de transferencia de las acciones.
Artículo L.229-12 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Los estatutos de una sociedad europea que no realice llamamiento público al ahorro, con arreglo a las condiciones que ellos mismos determinen, podrán prever que un accionista pueda verse obligado a ceder sus acciones. Podrán así mismo prever la suspensión de los derechos no dinerarios de este accionista en tanto que el mismo no haya procedido a la cesión en cuestión.
Artículo L.229-13 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Los estatutos de una sociedad europea que no realice llamamiento público al ahorro podrán prever que la sociedad accionista cuyo control se modifique de conformidad con el artículo L.233-16 deba, a partir de esta modificación, informar de ello a la sociedad europea. Esta podrá decidir, en las condiciones establecidas por los estatutos, suspender el ejercicio de los derechos no dinerarios de este accionista y excluirlo.
Lo dispuesto en el párrafo primero podrá aplicarse, en las mismas condiciones, al accionista que haya adquirido esta condición tras una operación de fusión, escisión o disolución.
Artículo L.229-14 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Si los estatutos no determinaran las modalidades de evaluación del precio de cesión de las acciones cuando la sociedad europea aplique una cláusula introducida según lo dispuesto por los artículos L.229-11 a L.229-13, este precio será determinado por acuerdo entre las partes o, en su defecto, con arreglo a las condiciones establecidas en el artículo 1843-4 del Código Civil.
Cuando las acciones sean rescatadas por la sociedad europea, esta estará obligada a cederlas en un plazo de seis meses o a anularlas.
Artículo L.229-15 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Las cláusulas estipuladas en aplicación de los artículos L.229-11 a L.229-14 sólo podrán ser adoptadas o
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CÓDIGO DE COMERCIO modificadas por unanimidad de los accionistas.
TITULO III DISPOSICIONES COMUNES A LAS DIFERENTES SOCIEDADES MERCANTILES Artículos L231-1 a
L238-3-1
CAPITULO I Del capital variable Artículos L231-1 a
L231-8
Artículo L231-1 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Podrá estipularse en los estatutos de aquellas sociedades que no tengan la forma de sociedad anónima, así como en toda sociedad cooperativa, que el capital social sea susceptible de ampliación, por medio de pagos sucesivos de los socios o por admisión de nuevos socios, y de reducción, por medio de la recuperación total o parcial de las aportaciones.
Las sociedades cuyos estatutos contengan la estipulación anterior se atendrán a las disposiciones del presente capítulo, independientemente de las normas generales correspondientes a su forma específica.
Artículo L231-2 Si la sociedad hubiera hecho uso de la facultad otorgada por el artículo L.231-1 se mencionará esta circunstancia
en todas las actas y documentos emitidos por la sociedad y que sean destinados a terceros, añadiendo las palabras: "de capital variable".
Artículo L231-3 No estarán sujetas a los requisitos formales de depósito y publicación las actas que certifiquen ampliaciones o
reducciones de capital social, realizadas en los términos del artículo L.231-1, o las exclusiones de socios realizadas no obstante lo dispuesto en el artículo L.231-6, si cuando no se trate de los gerentes o los administradores.
Artículo L231-4 Las acciones o cupones de acciones serán nominativos, incluso después de haber sido totalmente desembolsados. Sólo serán negociables tras la constitución definitiva de la sociedad. La negociación sólo podrá producirse por vía de transferencia a los registros de la sociedad y los estatutos podrán
conceder el derecho a la impugnación de la transmisión en el seno del consejo de administración o de la junta general.
Artículo L231-5 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 124 II Diario Oficial de 16 de mayo de 2001)
Los estatutos determinarán una cantidad por debajo de la cual el capital no podrá ser reducido a causa de las recuperaciones de las aportaciones autorizadas por el artículo L.231-1.
Esta cantidad no podrá ser inferior ni a la décima parte del capital social estipulado en los estatutos ni, siempre y cuando no sean sociedades cooperativas, a la cantidad mínima exigida por las disposiciones legislativas reguladoras de cada forma de sociedad.
Las sociedades cooperativas estarán definitivamente constituidas cuando se produzca el pago de la décima parte del capital.
Artículo L231-6 Todo socio podrá retirarse de la sociedad cuando lo juzgue conveniente salvo que haya acuerdos en contrario o
cuando se aplique el primer párrafo del artículo L.231-5. Podrá estipularse que la junta general tenga derecho a decidir, con la mayoría establecida para la modificación de
los estatutos, que uno o varios de los socios dejen de formar parte de la sociedad. El socio que deje de formar parte de la sociedad, ya sea por propia voluntad, o a consecuencia de una decisión de
la junta general, responderá durante cinco años de todas las obligaciones existentes en el momento de su exclusión, tanto frente a los socios como frente a terceros.
Artículo L231-7 La sociedad, sea cual fuere su forma, estará representada ante la justicia por sus administradores.
Artículo L231-8 La sociedad no quedará disuelta ni por la muerte o la exclusión de un socio, ni por una resolución judicial de
liquidación, o por una medida de privación del derecho a ejercer la profesión comercial o por una medida de incapacitación que afecte a alguno de sus socios o por la insolvencia de alguno de ellos. Continuará de pleno derecho con el resto de los socios.
CAPITULO II De las cuentas sociales Artículos L232-1 a
L232-23
Sección I
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CÓDIGO DE COMERCIO De los documentos contables Artículos L232-1 a
L232-6
Artículo L232-1 I. - Al cierre de cada ejercicio, el consejo de administración, el directorio o los gerentes elaborarán el inventario, las
cuentas anuales, según lo establecido en las disposiciones de la sección 2 del capítulo III del título II del libro I y realizarán un informe de gestión. Deberán adjuntar al balance:
1º Un extracto de las fianzas, avales y garantías dados por la sociedad. Esta disposición no se aplicará a las sociedades que exploten un establecimiento de crédito o una compañía de seguros;
2º Un extracto de las garantías concedidas por ella. II. - El informe de gestión expondrá la situación de la sociedad durante el ejercicio transcurrido, su evolución
previsible, los hechos importantes acaecidos entre la fecha del cierre del ejercicio y la fecha en la que dicho informe se haya realizado, sus actividades en materia de investigación y desarrollo.
III. - Los documentos mencionados en el presente artículo serán, en su caso, puestos a disposición de los auditores de cuentas en las condiciones fijadas por decreto adoptado en Conseil d'Etat.
Artículo L232-2 En las sociedades mercantiles que respondan a uno de los criterios definidos por decreto adoptado en Conseil
d'Etat, seleccionadas por su número de empleados o por su facturación, considerando eventualmente la naturaleza de su actividad, el consejo de administración, el directorio o los gerentes estarán obligados a establecer una valoración de la situación del activo realizable y disponible, excluyendo los valores de explotación y del pasivo exigible, una cuenta de pérdidas y ganancias, un cuadro de financiación conjuntamente con el balance anual y un plan de financiación previsible.
El decreto adoptado en Conseil d'Etat mencionado anteriormente precisará la periodicidad, los plazos y las condiciones requeridas para la elaboración de estos documentos.
En cuanto a la determinación del número de empleados, tendrán la condición de trabajadores de la sociedad, los de las sociedades de las que ésta posea directa o indirectamente más de la mitad del capital, cualquiera que sea la forma de éstas.
Artículo L232-3 En las sociedades anónimas, los documentos citados en el artículo L.232-2 serán analizados en los informes
escritos elaborados por el consejo de administración o el directorio sobre la evolución de la sociedad. Los documentos e informes serán presentados simultáneamente al consejo de supervisión, al auditor de cuentas y al comité de empresa.
En caso de inobservancia de las disposiciones del artículo L.232-2 y del párrafo anterior, o si las informaciones dadas en los informes citados en el párrafo anterior suscitaran observaciones por parte del auditor de cuentas, éste tendrá que señalarlo en un informe dirigido al consejo de administración o al directorio, según el caso. El informe del auditor de cuentas será remitido simultáneamente al Comité de empresa. En la siguiente reunión de la junta general se dará a conocer dicho informe.
Artículo L232-4 En todas las sociedades que no revistan la forma de sociedades anónimas, los informes previstos en el artículo
L.232-3 serán elaborados por los gerentes, que los presentarán al auditor de cuentas, al comité de empresa y, en su caso, al consejo de supervisión, cuando éste exista en estas sociedades.
En caso de inobservancia de las disposiciones del artículo L.232-2 y del párrafo anterior o si las informaciones dadas en los informes citados en el párrafo anterior suscitaran observaciones por parte del auditor de cuentas, éste lo señalará en un informe dirigido al gerente o en el informe anual. Podrá solicitar que su informe sea notificado a los socios o que se dé a conocer en la junta de éstos. Este informe será presentado al comité de empresa.
Artículo L232-5 Las sociedades que elaboren cuentan consolidadas de conformidad con lo dispuesto en los artículos L.233-18 al
233-26, en las condiciones previstas en el artículo L.123-17 y no obstante lo dispuesto por el artículo L.123-18, podrán inscribir en el activo del balance los títulos de las sociedades controladas por aquéllas de manera exclusiva, en el sentido del artículo L.233-16, en función de la parte proporcional de los fondos propios establecida por las normas de consolidación que estos títulos representen. Si se eligiera este método de evaluación, se aplicará al conjunto de los títulos que respondan a las condiciones anteriores. En el anexo se deberá hacer mención de la opción elegida.
La contrapartida de la variación anual de la parte proporcional global de los fondos propios representativa de estos títulos no constituye un elemento de resultado; será inscrita separadamente en una partida de fondos propios. No será distribuible y no podrá ser utilizada para compensar las pérdidas. Sin embargo, si la diferencia global llegara a ser negativa, deberá ser inscrita en la cuenta de resultados.
Si una sociedad utiliza el método previsto en los párrafos anteriores, las sociedades que controle aplicarán ese mismo método cuando controlen por si mismas otras sociedades en las mismas condiciones.
Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente artículo.
Artículo L232-6 Cuando, en las condiciones definidas en el artículo L.123-17, se produzcan modificaciones en las presentación de
las cuentas anuales así como en los métodos de evaluación utilizados, deberán ser señalados en el informe de gestión
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CÓDIGO DE COMERCIO y, eventualmente, en el informe de los auditores de cuentas.
Sección II De los documentos propios de las sociedades que realicen oferta pública de
acciones al ahorro Artículos L232-7 a L232-8
Artículo L232-7 Las sociedades cuyas acciones estén admitidas a negociación en un mercado regulado estarán obligadas a
adjuntar a sus cuentas anuales un inventario de los valores mobiliarios poseídos en cartera al cierre del ejercicio. Adjuntarán también un cuadro relativo al reparto y asignación de las cantidades distribuibles que serán propuestas
a la junta general. Estas sociedades, exceptuando las sociedades de inversión de capital variable, estarán también obligadas a
elaborar y publicar, como máximo en los cuatro meses siguientes al primer semestre del ejercicio, un informe en el que se comenten los datos numéricos relativos a la cifra de negocios y a los resultados de la sociedad en el transcurso del semestre finalizado y que describa su actividad a lo largo de este período así como su evolución previsible en el transcurso del ejercicio y los hechos más relevantes acaecidos en el transcurso del semestre anterior. Las menciones que deberán figurar obligatoriamente en el informe semestral y las condiciones de su publicación serán determinadas por decreto adoptado en Conseil d'Etat. Los auditores de cuentas comprobarán la exactitud y veracidad de las informaciones contenidas en el informe semestral.
Artículo L232-8 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 4 y anexo II Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Cuando la mitad de su capital pertenezca a una o a varias sociedades cuyas acciones estén admitidas a negociación en un mercado regulado, las sociedades cuyas acciones no sean admitidas en él y aquéllas que no revistan la forma de sociedades por acciones, estarán obligadas a adjuntar a sus cuentas un inventario de los valores mobiliarios poseídos en cartera al cierre del ejercicio, si su balance sobrepasara los 300 de euros o si el valor del inventario o el valor bursátil de su cartera sobrepasara los 300000 euros.
Sección III De las amortizaciones y de las provisiones Artículo L232-9
Artículo L232-9 Sin perjuicio de las disposiciones del segundo párrafo del artículo L.232-15, los gastos de constitución de la
sociedad serán amortizados antes de realizar cualquier reparto de beneficios, y, como máximo, en un plazo de cinco años.
Los gastos de la ampliación de capital serán amortizados como máximo a la expiración del quinto ejercicio siguiente a aquél en el curso del cual se hubieran realizado. Estos gastos podrán ser imputados al importe de las primas de emisión correspondientes a esta ampliación.
Sin embargo, las sociedades cuyo objeto exclusivo sea la construcción y la gestión de inmuebles de alquiler para uso principal como vivienda o leasing inmobiliario, así como las sociedades inmobiliarias para el comercio y la industria, podrán amortizar los gastos de constitución de la sociedad y los gastos de ampliación de capital en las mismas condiciones que sus inmuebles. Las sociedades autorizadas para la financiación de las telecomunicaciones podrán amortizar los gastos de constitución y los gastos de ampliación de capital en las mismas condiciones que sus inmuebles y sus equipamientos.
Sección IV De los beneficios Artículos L232-10 a
L232-20
Artículo L232-10 Bajo pena de nulidad de todo acuerdo en contrario, en las sociedades de responsabilidad limitada y las sociedades
por acciones, se deducirá al menos una veinteava parte correspondiente a la formación de un fondo de reserva llamado "reserva legal", sobre el beneficio del ejercicio, al que se le restará, en su caso, las pérdidas anteriores.
Esta deducción dejará de ser obligatoria, cuando la reserva alcance la décima parte del capital social.
Artículo L232-11 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
El beneficio distribuible estará constituido por el beneficio del ejercicio, tras la deducción de las pérdidas anteriores y de las cantidades que deberán mantenerse en reserva, por aplicación de la Ley o de los estatutos, que se sumará al saldo anterior positivo.
Además, la junta general podrá decidir el reparto de las cantidades deducidas de las reservas de las que pueda disponer. En ese caso, la decisión indicará expresamente las partidas de las reservas sobre las que se efectuarán estas deducciones. Sin embargo, los dividendos serán deducidos preferiblemente del beneficio distribuible del ejercicio.
Aparte del caso de reducción de capital, no se podrá realizar ningún otro reparto a los accionistas cuando los fondos propios pudieran llegar a ser, a consecuencia de tal reparto, inferiores al importe del capital y las reservas que la Ley o los estatutos no permiten repartir.
La diferencia de la reevaluación no será distribuible. Podrá ser incorporada en todo o en parte al capital.
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CÓDIGO DE COMERCIO Artículo L232-12
Tras la aprobación de las cuentas anuales y la constatación de la existencia de cantidades distribuibles, la junta general determinará la parte que corresponda adjudicar a los socios en forma de dividendos.
Sin embargo, cuando un balance, elaborado en el transcurso o al final del ejercicio y certificado por un auditor de cuentas, constatara que la sociedad, desde el cierre del ejercicio anterior, ha obtenido un beneficio, tras la constitución de las amortizaciones y provisiones necesarias y tras la deducción, si procede, de las pérdidas anteriores y de las cantidades a dejar en reserva por aplicación de la Ley o de los estatutos y considerando el remanente de beneficios, tal beneficio podrá ser repartido por medio de anticipos sobre los dividendos con anterioridad a la aprobación de las cuentas del ejercicio. El importe de estos anticipos no podrá exceder del importe del beneficio definido en el presente párrafo. Serán repartidos en las condiciones y con los trámites establecidos por decreto adoptado en Conseil d'Etat.
Todo dividendo distribuido infringiendo las normas anteriormente enunciadas será considerado como dividendo ficticio.
Artículo L232-13 Las condiciones en las que se efectuará el pago de los dividendos votados por la junta general serán determinadas
por ésta o, en su defecto, por el consejo de administración, el directorio o los gerentes, según el caso. Sin embargo, el pago de los dividendos deberá producirse en un plazo máximo de nueve meses contados a partir
del cierre del ejercicio. Una resolución judicial podrá otorgar una prórroga de dicho plazo.
Artículo L232-14 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Podrá ser adjudicado por los estatutos un incremento de dividendos hasta un límite del 10% a todo accionista que presente justificación, al cierre del ejercicio, de una inscripción nominativa de al menos dos años de antigüedad y del mantenimiento de ésta hasta la fecha de pago del dividendo. Su porcentaje será determinado por la junta general extraordinaria. En las sociedades admitidas a negociación en un mercado regulado, el número de títulos con derecho a este incremento de dividendos no podrá exceder, para un mismo accionista, del 0,5% del capital de la sociedad. El mismo incremento podrá ser atribuido, en las mismas condiciones, en caso de reparto de acciones gratuitas.
Este incremento no podrá ser adjudicado antes del cierre del segundo ejercicio siguiente a la modificación de los estatutos.
Artículo L232-15 Estará prohibido estipular un interés fijo o suplementario en beneficio de los socios. Cualquier cláusula en contrario
se tendrá por no puesta. Las disposiciones del párrafo anterior no serán aplicables cuando el Estado haya otorgado a las acciones la
garantía de un dividendo mínimo.
Artículo L232-16 Los estatutos podrán prever la atribución, en concepto de primer dividendo, de un interés calculado sobre el
importe liberado y no reembolsado de las acciones. Salvo disposición en contrario de los estatutos, no se tendrán en cuenta las reservas para el cálculo del primer dividendo.
Artículo L232-17 La sociedad no podrá exigir de los accionistas o poseedores de participaciones ninguna restitución de dividendos,
salvo cuando concurran las dos condiciones siguientes: 1º Cuando el reparto se haya efectuado infringiendo las disposiciones de los artículos L. 232-11, L.232-12 y
L.232-15. 2º Cuando la sociedad determine que los beneficiarios conocían el carácter irregular de este reparto en el momento
en que se efectuó o que, dadas las circunstancias, no podían ignorarlo.
Artículo L232-18 En las sociedades por acciones, los estatutos podrán prever que la junta que resuelve sobre las cuentas del
ejercicio tenga la facultad de otorgar a cada accionista, para todo o parte del dividendo a repartir o de los anticipos sobre el dividendo, una opción entre el pago del dividendo o anticipos sobre el dividendo en metálico o en acciones.
Cuando existan diferentes categorías de acciones, la junta general que resuelva sobre las cuentas del ejercicio tendrá la facultad de decidir que las acciones suscritas sean de la misma categoría que las acciones que hayan dado derecho al dividendo o a los anticipos sobre el dividendo.
La oferta de pago del dividendo o de los anticipos sobre el dividendo en acciones tendrá que ser realizada simultáneamente a todos los accionistas.
Artículo L232-19 El precio de emisión de las acciones que hayan sido emitidas en las condiciones previstas en el artículo L.232-18
no podrá ser inferior al nominal. En las sociedades cuyas acciones estén admitidas a negociación en un mercado regulado, el precio de emisión no
podrá ser inferior al 90% de la media de las cotizaciones en las veinte últimas sesiones bursátiles anteriores al día de la decisión de inicio del reparto, reducido por el importe neto del dividendo o de los anticipos sobre el dividendo.
En las demás sociedades, el precio de emisión será determinado, a elección de la sociedad, o bien dividiendo el importe del activo neto calculado según el balance más reciente por el número de títulos existentes, o bien guiándose por el informe del perito designado judicialmente a petición del consejo de administración o del directorio, según el
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CÓDIGO DE COMERCIO caso. El auditor de cuentas comprobará la aplicación de las reglas de determinación del precio de emisión y presentará un informe especial a la junta general citada en el artículo L.232-18.
Cuando el importe de los dividendos o de los anticipos sobre el dividendo anual al que tenga derecho no corresponda a un número entero de acciones, el accionista podrá recibir el número de acciones inmediatamente inferior completado con una compensación en metálico o, si la junta general lo solicitase, el número de acciones inmediatamente superior, pagando el accionista la diferencia en metálico.
Artículo L232-20 La solicitud de pago del dividendo en acciones, acompañada, en su caso, del pago previsto en el segundo párrafo
del artículo L.232-19, deberá producirse en un plazo determinado por la junta general, sin que pueda ser superior a tres meses contados a partir de la fecha de dicha junta. La ampliación de capital será realizada por el simple hecho de esta solicitud, y, en su caso, por este pago y no se requerirá el cumplimiento de los requisitos formales previstos en el artículo L.225-142, en el párrafo segundo del artículo L.225-144, y en el artículo L.225-146.
Sin embargo, en caso de ampliación de capital, el consejo de administración o el directorio, según el caso, podrá suspender el ejercicio del derecho a obtener el pago del dividendo en acciones durante un plazo que no podrá exceder de tres meses.
En la primera reunión que tenga lugar tras la expiración del plazo establecido por la junta general en aplicación del primer párrafo del presente artículo, el consejo de administración o, según el caso, el directorio, comprobará el número de acciones emitidas en aplicación del presente artículo y aportará las modificaciones necesarias a las cláusulas de los estatutos relativas al importe del capital social y al número de acciones que lo representan. El presidente podrá, por delegación del consejo de administración o del directorio, proceder a estas operaciones en el mes siguiente a la expiración del plazo determinado por la junta general.
Sección V De la publicidad de las cuentas Artículos L232-21 a
L232-23
Artículo L232-21 I. - Las sociedades colectivas en la que todos los socios indefinidamente responsables sean sociedades de
responsabilidad limitada o sociedades por acciones, en el mes siguiente a la aprobación de las cuentas anuales por la junta general ordinaria de los socios, estarán obligadas a depositar, por duplicado, en la secretaría del Tribunal, para ser remitidas al Registro de Comercio y de Sociedades:
1º Las cuentas anuales, el informe de gestión y, en su caso, las cuentas consolidadas, el informe sobre la gestión del grupo, los informes de los auditores de cuentas sobre las cuentas anuales y las cuentas consolidadas, eventualmente complementadas con sus observaciones sobre las modificaciones realizadas por la junta en las cuentas anuales presentadas a ésta para su aprobación;
2º La propuesta de asignación del resultado presentado a la junta y la resolución de asignación votada o la decisión de asignación ya tomada.
II. II.- En caso de denegación o de admisión, se presentará en el mismo plazo una copia del acuerdo de la junta. III. - Las obligaciones definidas anteriormente se impondrán igualmente a las sociedades colectivas cuyos socios
indefinidamente responsables sean sociedades colectivas o a las comanditarias simples cuyos socios indefinidamente responsables sean sociedades de responsabilidad limitada o por acciones.
IV. - Para la aplicación del presente artículo, se considerarán como sociedades de responsabilidad limitada o por acciones, las sociedades creadas bajo un sistema jurídico extranjero que tengan una forma jurídica similar.
Artículo L232-22 I. - Toda sociedad de responsabilidad limitada estará obligada a presentar, por duplicado, en la secretaría del
Tribunal, para ser remitidas al Registro de Comercio y de Sociedades, en el mes siguiente a la aprobación de las cuentas anuales por parte de la junta ordinaria de socios o por el socio único:
1º Las cuentas anuales, el informe de gestión y, en su caso, las cuentas consolidadas, el informe sobre la gestión del grupo, los informes de los auditores de cuentas sobre las cuentas anuales y las cuentas consolidadas, eventualmente completadas por sus observaciones en relación a las modificaciones aportadas por la junta o el socio único a las cuentas anuales presentadas a éstos para su aprobación;
2º La propuesta de asignación del resultado presentada a la junta o al socio único y el acuerdo de asignación votado o la decisión de asignación tomada.
II. - En caso de denegación o de admisión, se presentará en el mismo plazo una copia del acuerdo tomado por la junta o de la decisión del socio único.
Artículo L232-23 I. - Toda sociedad por acciones estará obligada a presentar, por duplicado, en la secretaría del Tribunal en el mes
siguientes a la aprobación de las cuentas anuales por parte de la junta general de accionistas, para ser remitidas al Registro de Comercio y de Sociedades:
1º Las cuentas anuales, el informe de gestión, el informe de los auditores de cuentas sobre las cuentas anuales, eventualmente completado por sus observaciones sobre las modificaciones aportadas por la junta a las cuentas anuales que le fueron presentadas para su aprobación, así como, eventualmente, las cuentas consolidadas, el informe sobre la gestión del grupo, el informe de los auditores de cuentas sobre las cuentas consolidadas y el informe del consejo de supervisión;
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CÓDIGO DE COMERCIO 2º La propuesta de asignación del resultado sometida a la junta y la resolución de asignación votada. II. - En caso de no aprobarse las cuentas anuales, se presentará en el mismo plazo una copia del acuerdo de la
junta.
CAPITULO III De las filiales, de las participaciones y de las sociedades controladas Artículos L233-1 a
L233-31
Sección I Definiciones Artículos L233-1 a
L233-5
Artículo L233-1 Cuando una sociedad posea más de la mitad del capital de otra sociedad, la segunda será considerada como filial
de la primera, para la aplicación del presente capítulo.
Artículo L233-2 Cuando una sociedad posea en otra sociedad una fracción del capital comprendida entre el 10 y el 50%, la primera
será considerada como poseedora de una participación en la segunda, para la aplicación del presente capítulo.
Artículo L.233-3 (Ley nº 2001-420 de 15 de mayo de 2001 art. 120 I Diario Oficial de 16 de mayo de 2001) (Ley nº 2001-1168 de 11 de diciembre de 2001 art. 28 I Diario Oficial de 12 de diciembre de 2001) (Ley nº 2005-842 de 26 de julio de 2005 art. 33 I Diario Oficial de 27 de julio de 2005)
I. - Se considerará que una sociedad controla a otra, para la aplicación de las secciones 2 y 4 del presente capítulo: 1º Cuando posea directa o indirectamente una fracción del capital que le confiera la mayoría de los derechos de
voto en las juntas generales de esta sociedad; 2º Cuando disponga por sí misma de la mayoría de los derechos de voto en esta sociedad en virtud de un acuerdo
firmado con otras sociedades o accionistas que no sea contrario al interés de la sociedad; 3º Cuando tenga el control de hecho sobre las decisiones en las juntas generales de esta sociedad, debido a los
derechos de voto de los que disponga. 4° Cuando esté asociada o sea accionista de dicha sociedad, y disponga de la facultad de nombrar o revocar a la
mayoría de los miembros de los órganos de administración, dirección o supervisión de la misma. II. - Se presumirá que ejerce este control cuando disponga directa o indirectamente de un porcentaje de derechos
de voto superior al 40%, y siempre que ningún otro socio o accionista posea directa o indirectamente un porcentaje superior al suyo.
III. - Para la aplicación de las mismas secciones del presente capítulo, se considerará que dos o varias sociedades que actúen de modo concertado controlarán conjuntamente a otra cuando tengan el control de hecho de las decisiones tomadas en las juntas generales.
Artículo L233-4 Cualquier participación en el capital inferior incluso al 10% poseída por una sociedad controlada será considerada
como poseída indirectamente por la sociedad que controle a esta sociedad.
Artículo L233-5 El Ministerio Público y la Comisión de operaciones bursátiles para las sociedades que hagan llamamiento público al
ahorro estarán habilitados para entablar una acción judicial para que se constate la existencia de un control sobre una o varias sociedades.
Nota: Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 V 1º y 2º: 1º Las referencias a la Comisión de Operaciones Bursátiles, al Consejo de Mercados Financieros y al Consejo de
disciplina de la gestión financiera serán sustituidas por la referencia a la Autoridad de Mercados Financieros; 2° Las referencias a los reglamentos de la Comisión de Operaciones Bursátiles y al reglamento general del
Consejo de Mercados Financieros de disciplina de la gestión financiera serán sustituidas por la referencia al reglamento general de la Autoridad de Mercados Financieros.
Sección II De las notificaciones y de las informaciones Artículos L233-6 a
L233-15
Artículo L233-6 Cuando una sociedad haya tomado, en el transcurso de un ejercicio, una participación en una sociedad con
domicilio social en territorio de la República Francesa y esta participación represente más de la veinteava, de la décima, de la quinta, de la tercera parte o de la mitad del capital de esta sociedad, o cuando la primera se haya asegurado el control de dicha sociedad, se hará mención de ello en el informe sobre las operaciones del ejercicio presentado a los socios y, en su caso, en el informe de los auditores de cuentas.
El consejo de administración, el directorio o el gerente de una sociedad dará cuenta en su informe de la actividad y de los resultados del conjunto de la sociedad, de las filiales de la sociedad y de las sociedades que controle por sector de actividad. Cuando esta sociedad realice y publique las cuentas consolidadas, el informe anteriormente mencionado
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CÓDIGO DE COMERCIO podrá ser incluido en el informe de gestión del grupo citado en el artículo L.233-26.
Artículo L.233-7 (Ley nº 2001-420 de 15 de mayo de 2001 art. 119 3° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 art. 46 I 2°, art. 125 3° Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 art. 51 XV Diario Oficial de 26 de junio de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 art. 78 XXVII Diario Oficial de 10 de diciembre de 2004) (Ley nº 2005-842 de 26 de julio de 2005 art. 33 II Diario Oficial de 27 de julio de 2005)
I. - Cuando las acciones de una sociedad con sede en el territorio de la República estén admitidas a negociación en un mercado regulado en un mercado de instrumentos financieros que admitan a negociación acciones susceptibles de ser anotadas en la cuenta de un intermediario habilitado en las condiciones previstas por el artículo L.211-4 del Código Monetario y Financiero, cualquier persona física o jurídica que actúe sola o en grupo y que posea un número de acciones que representen más de la veinteava, de la décima, de las tres veinteavas, de la quinta, de la cuarta, de la tercera, de la mitad, de las dos terceras, de las dieciocho veinteavas o de las diecinueve veinteavas partes del capital o de los derechos de voto, informará a la sociedad del número total de acciones que posea de la misma en un plazo establecido por decreto adoptado en Conseil d'Etat, en cual comenzará a computarse a partir del día en que haya sobrepasado ese umbral de participación.
La información mencionada en el párrafo anterior deberá asimismo proporcionarse en el mismo plazo cuando la participación en capital o en derechos de voto sea inferior a los umbrales previstos en este párrafo.
La persona obligada a dar la información prevista en el primer párrafo tendrá que precisar el número de títulos poseídos que en un determinado plazo den acceso al capital, así como los derechos de voto que estén vinculados a ellos.
II. - La persona obligada a dar la información prevista en el punto I informará igualmente a la Autoridad de Mercados Financieros, en el plazo y las condiciones establecidas por su reglamento general, a partir de la fecha en que haya sobrepasado el umbral de participación, cuando las acciones de la sociedad estén admitidas a negociación en un mercado regulado, o en un mercado de instrumentos financieros que no sea un mercado regulado previa solicitud de la persona que gestiona dicho mercado de instrumentos financieros Dicha información se hará pública en las condiciones establecidas por el reglamento general de la Autoridad de Mercados Financieros.
El reglamento general precisará igualmente las modalidades de cálculo de los umbrales de participación. III. - Los estatutos de la sociedad podrán prever una obligación suplementaria de información relacionada con la
posesión de porciones del capital o de los derechos de voto inferiores a la veinteava parte mencionada en el punto I. La obligación recaerá sobre la posesión de cada una de dichas porciones, que no podrán ser inferiores al 0,5% del capital o de los derechos de voto.
IV. - Las obligaciones de información previstas en los puntos I, II y III no se aplicarán a las acciones: 1° Adquiridas exclusivamente con un objetivo de compensación, liquidación o entrega de instrumentos financieros,
en el marco habitual del ciclo de pago a corto plazo definido por el reglamento general de la Autoridad de Mercados Financieros;
2° Detentadas por los administradores de cuentas de custodia en el marco de su actividad de teneduría de cuentas y custodia.
3° Detentadas por un proveedor de servicios de inversión en su cartera de negociación, en el sentido de la Directiva 93/6.CE del Consejo, de 15 de marzo de 1993, sobre la adecuación del capital de las empresas de inversión y las entidades de crédito, siempre que dichas acciones no representen una porción del capital o de los derechos de voto de la sociedad emisora de dichos títulos que fuera superior al umbral fijado por el reglamento general de la Autoridad de Mercados Financieros y siempre que los derechos de voto vinculados a estos títulos no sean ejercidos ni utilizados para intervenir en la gestión de la sociedad emisora.
4° Entregadas a los miembros del Sistema Europeo de Bancos Centrales o entregadas por estos últimos en el ejercicio de sus funciones de autoridad monetaria, en las condiciones establecidas por el reglamento general de la Autoridad de Mercados Financieros.
V. - Las obligaciones de información previstas en los puntos I, II y III no se aplicarán: 1°) Al creador de mercado, cuando este sobrepase el umbral de la veinteava parte del capital o de los derechos de
voto en el marco de la gestión del mercado, a condición que no intervenga en la gestión de la sociedad emisora en las condiciones establecidas por el reglamento general de la Autoridad de Mercados Financieros;
2°) Cuando la persona mencionada en el punto I esté controlada, en el sentido del artículo L.233-3, por una entidad sujeta a la obligación prevista en los puntos I a III para las acciones detentadas por dicha persona, o cuando esta entidad esté a su vez controlada, en el sentido del artículo L.233-3, por una entidad sujeta a la obligación prevista en los puntos I a III para las mismas acciones.
VI. En caso de no cumplir con la obligación de información citada en el punto III, los estatutos de la sociedad podrán prever que sólo se apliquen las disposiciones de los dos primeros párrafos del artículo L.233-14 si hubiera una solicitud, consignada en el acta de la junta general, de uno o varios accionistas poseedores de una fracción del capital o de derechos de voto de la sociedad emisora al menos igual a la fracción menor de capital cuya posesión deba ser declarada. Sin embargo, esta fracción no podrá ser superior al 5%.
VII. - Cuando las acciones de la sociedad estén admitidas a negociación en un mercado regulado, la persona obligada a dar la información prevista en el punto I deberá declarar, en el momento en que sobrepasara el nivel de la décima o la quinta parte del capital o de los derechos de voto, los objetivos que tuviera la intención de alcanzar en los doce meses siguientes . Esta declaración precisará si el comprador actúa solo o en grupo, si prevé paralizar sus
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CÓDIGO DE COMERCIO compras o continuarlas, conseguir o no el control de la sociedad, solicitar su nombramiento o el de una o varias personas como administrador, miembro del directorio o del consejo de supervisión. Será dirigida a la sociedad cuyas acciones hayan sido adquiridas y a la Autoridad de Mercados Financieros en un plazo de diez días bursátiles. Dicha información se hará pública en las condiciones establecidas por el reglamento general de la Autoridad de Mercados Financieros. En caso de cambiar de intención, lo que sólo podrá ser provocado por modificaciones importantes en el entorno, la situación o el accionariado de las personas implicadas, se deberá realizar una nueva declaración, que deberá comunicarse a la sociedad y a la Autoridad de Mercados Financieros y se pondrá a disposición pública en las mismas condiciones.
Artículo L.233-8 (Ley nº 2003-706 de 1 de agosto de 2003 art. 46 I Diario Oficial de 2 de agosto de 2003) (Ley nº 2005-842 de 26 de julio de 2005 art. 33 III Diario Oficial de 27 de julio de 2005)
I. - En los quince días posteriores a la junta general ordinaria, como máximo, toda sociedad por acciones informará a sus accionistas del número total de derechos de voto existentes en tal fecha. Entre dos juntas generales ordinarias, si el número de derechos de voto variara con relación al número declarado anteriormente en una proporción determinada por orden del Ministro de Economía, la sociedad informará a sus accionistas de dicho cambio tan pronto como tenga conocimiento de ello.
II. - Las sociedades cuyas acciones estén admitidas a negociación en un mercado regulado publicarán cada mes el número total de derechos de voto y el número de acciones que integran el capital de la sociedad, cuando dichos números hayan variado desde su última publicación, en las condiciones y con arreglo a los procedimientos establecidos por el reglamento general de la Autoridad de Mercados Financieros. Se considerará que dichas sociedades satisfacen la obligación prevista en el punto I.
Artículo L.233-9 (Ley nº 2005-842 de 26 de julio de 2005 art. 33 IV Diario Oficial de 27 de julio de 2005)
I. - Se asimilarán a las acciones o a los derechos de voto poseídos por la persona obligada a la información prevista en el punto I del artículo L.233-7:
1º Las acciones o los derechos de voto poseídos por otras personas por cuenta de dicha persona; 2º Las acciones o los derechos de voto poseídos por las sociedades que controle dicha persona en el sentido del
artículo L.233-3; 3º Las acciones o los derechos de voto poseídos por un tercero con quien esta persona se haya unido para actuar
conjuntamente; 4º Las acciones o los derechos de voto que esta persona o una de las personas mencionadas en los apartados 1º
al 3º anteriores tenga derecho a adquirir por su propia iniciativa o en virtud de un acuerdo; 5° Las acciones que dicha persona posea en usufructo; 6° Las acciones o los derechos de voto poseídos por un tercero con el cual dicha persona haya suscrito un acuerdo
de cesión temporal relativo a dichas acciones o derechos de voto; 7° Las acciones depositadas ante dicha persona, a condición de que esta pueda ejercer a voluntad los derechos de
votos vinculados a ellas en ausencia de instrucciones específicas de los poseedores; 8° Los derechos de voto que dicha persona pueda ejercer libremente en virtud de un poder conferido por los
poseedores de las acciones, en ausencia de instrucciones específicas de los mismos. II. - No se asimilarán a las acciones o a los derechos de voto poseídos por la persona obligada a la información
prevista en el punto I del artículo L.233-7: 1° Las acciones detentadas por los organismos de inversión colectiva en valores mobiliarios gestionados por una
sociedad de gestión de activos controlada por dicha persona en el sentido del artículo L.233-3, salvo las excepciones previstas por el reglamento general de la Autoridad de Mercados Financieros;
2° Las acciones detentadas en una cartera gestionada por un proveedor de servicios de inversión controlado por dicha persona en el sentido del artículo L.233-3, en el marco del servicio de gestión de cartera por cuenta de terceros en las condiciones establecidas por el reglamento general de la Autoridad de Mercados Financieros, salvo las excepciones previstas por dicho reglamento general;
Artículo L233-10 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 121 Diario Oficial de 16 de mayo de 2001) (Ley nº 2001-1168 de 11 de diciembre de 2001 Artículo 28 II Diario Oficial de 12 de diciembre de 2001) (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
I. - Se considerará que actúan conjuntamente las personas que hayan firmado un acuerdo para adquirir o vender derechos de voto o con vistas a ejercer los derechos de voto, con el fin de poner en práctica una política con relación a la sociedad.
II. - Se presume existente tal acuerdo: 1° Entre una sociedad, el presidente de su consejo de administración y sus directores generales o los miembros
de su directorio o sus gerentes; 2° Entre une sociedad y las sociedades que controle en el sentido del artículo 233-3; 3° Entre sociedades controladas por la misma o las mismas personas; 4° Entre los socios de una sociedad por acciones simple con relación a sociedades que ésta controle. III. - Las personas que actúen conjuntamente estarán obligadas de forma solidaria al cumplimiento de lo que
dispongan las leyes y reglamentos.
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CÓDIGO DE COMERCIO Artículo L233-11 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 1 Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 I 4° Diario Oficial de 2 de agosto de 2003)
Toda cláusula de un contrato que prevea condiciones preferenciales de cesión o de adquisición de acciones admitidas a negociación en un mercado regulado y que corresponda al menos a un 0,5% del capital o de los derechos de voto de la sociedad que haya emitido estas acciones deberá ser comunicada a la Autoridad de mercados financieros en un plazo de cinco días bursátiles contados desde la fecha del pacto o del contrato del apéndice que introduzca la cláusula en cuestión. Si no se realizara dicha comunicación, los efectos de esta cláusula quedarán en suspenso y las partes desvinculadas de sus compromisos, en período de oferta pública.
La sociedad y la Autoridad de mercados financieros deberán igualmente ser informados de la fecha de expiración de dicha cláusula.
Las cláusulas de los contratos firmados con anterioridad a la fecha de publicación de la Ley nº 2001-420 de 15 de mayo de 2001, relativa a las nuevas regulaciones económicas, que no hayan sido transmitidas al Consejo de Mercados Financieros en esa fecha, deberán serle comunicadas en un plazo de seis meses, con las mismas condiciones y con los mismos efectos que los mencionados en el párrafo primero.
Las informaciones mencionadas en los párrafos anteriores se pondrán a conocimiento del público en las condiciones fijadas por el reglamento general de la Autoridad de mercados financieros.
Artículo L233-12 Cuando una sociedad esté controlada directa o indirectamente por una sociedad por acciones, aquélla notificará a
esta última y a cada una de las sociedades que participen en este control el importe de las participaciones que posea directa o indirectamente en su capital respectivo así como las variaciones de este importe.
Las notificaciones se harán en el plazo de un mes a contar, o bien desde el día en que la sociedad haya conocido la toma de control para los títulos que poseía antes de esa fecha, o bien desde el día de la operación para las adquisiciones o enajenaciones posteriores.
Artículo L.233-13 (Ley nº 2005-842 de 26 de julio de 2005 art. 33 VI Diario Oficial de 27 de julio de 2005)
En función de las informaciones recibidas en aplicación de los artículos L.233-7 y L.233-12, el informe presentado a los accionistas sobre las operaciones del ejercicio mencionará la identidad de las personas físicas o jurídicas que posean directa o indirectamente más de la veinteava, de la décima, de las tres veinteavas, de la quinta, de la cuarta, de la tercera parte, de la mitad o de las dos terceras partes del capital social o de los derechos de voto en las juntas generales. Hará constar igualmente las modificaciones producidas en el transcurso del ejercicio. Indicará el nombre de las sociedades controladas y la parte del capital de la sociedad que posean. Se hará mención de ello, en su caso, en el informe de los auditores de cuentas.
Artículo L.233-14 (Ley nº 2003-7 de 3 de enero de 2003 art. 50 II Diario Oficial de 4 de enero de 2003) (Ley nº 2003-706 de 1 de agosto de 2003 art. 46 I 5°, V 1°, 2° Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 art. 51 XV bis Diario Oficial de 26 de junio de 2004) (Ley nº 2005-842 de 26 de julio de 2005 art. 33 VII Diario Oficial de 27 de julio de 2005)
Si no hubieran sido regularmente declaradas en las condiciones previstas en los puntos I y II del artículo L.233-7, las acciones que sobrepasen la fracción que tendría que haber sido declarada, cuando estén admitidas a negociación en un mercado regulado o en un mercado de instrumentos financieros que admitan a negociación acciones susceptibles de ser anotadas en la cuenta de un intermediario habilitado en las condiciones previstas en el artículo L.211-4 del Código Monetario y Financiero, serán privadas del derecho de voto para cualquier junta de accionistas que se celebrara hasta la expiración de un plazo de dos años posteriores a la fecha de regularización de la notificación.
En las mismas condiciones, los derechos de voto vinculados a estas acciones y que no hayan sido regularmente declarados no podrán ser ejercidos o delegados por el accionista que se encuentre en mora.
El accionista que no hubiera procedido a la declaración prevista en el punto VII del artículo L.233-7 será privado de los derechos de voto vinculados a los títulos que excedan de la fracción de la décima o la quinta parte mencionada en el mismo punto para toda junta de accionistas que se celebrara hasta la expiración de un plazo de dos años posteriores a la fecha de regularización de la notificación.
El Tribunal de commerce en cuya circunscripción la sociedad tenga su sede social, a petición del presidente de la sociedad, de un accionista o de la Autoridad de Mercados Financieros, podrá decidir, por un periodo que no podrá exceder de los cinco años, previo dictamen del Ministerio Fiscal, la suspensión total o parcial de sus derechos de voto para todo aquel accionista que no hubiera procedido a las declaraciones previstas en el artículo L.233-7, o que no hubiera respetado el contenido de la declaración prevista en el punto VII de este artículo durante el periodo de doce meses posteriores a su publicación en las condiciones establecidas por el reglamento general de la Autoridad de Mercados Financieros.
Artículo L233-15 El consejo de administración, el directorio o el gerente de cualquier sociedad que tenga filiales o participaciones,
adjuntará un cuadro al balance de la sociedad en el que mostrará la situación de dichas filiales y participaciones.
Sección III
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CÓDIGO DE COMERCIO De las cuentas consolidadas Artículos L233-16 a
L233-28
Artículo L233-16 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 133 Diario Oficial de 2 de agosto de 2003)
I. - Las sociedades mercantiles elaborarán y publicarán cada año a instancia del consejo de administración, del directorio o de los gerentes, según el caso, cuentas consolidadas así como un informe sobre la gestión del grupo, desde el momento en que controlen de manera exclusiva o conjunta una o varias empresas diferentes o que ejerzan una influencia notable sobre éstas, en las condiciones que se definen seguidamente.
II. - El control exclusivo por parte de una sociedad será el resultado: 1º De la posesión directa o indirecta de la mayoría de los derechos de voto en otra empresa; 2° O del nombramiento, durante dos ejercicios consecutivos, de la mayoría de los miembros de los órganos de
administración, de dirección o de supervisión de otra empresa. Se presumirá que la sociedad consolidante ha efectuado este nombramiento cuando haya dispuesto en el transcurso de este período, directa o indirectamente, de una fracción superior al 40% de los derechos de voto, y que ningún socio o accionista poseyera, directa o indirectamente, una fracción superior a la suya;
3º O bien del derecho a ejercer una influencia dominante en una empresa en virtud de un contrato o de cláusulas estatutarias, cuando el derecho aplicable lo permita. (1)
III. - El control conjunto consistirá en compartir el control de una empresa explotada en común por un número limitado de socios o accionistas, de manera que las decisiones se produzcan de común acuerdo.
IV. - Se presumirá que existe influencia notable sobre la gestión y la política financiera de una empresa cuando una empresa disponga, directa o indirectamente, de una fracción al menos igual a la quinta parte de los derechos de voto de esa empresa.
Nota (1): Ley 2003-721 Artículo 133 II: Las disposiciones de este apartado se aplicarán a partir del primer ejercicio abierto tras la publicación de la Ley N° 2003-706 de 1 de agosto de 2003 en el Diario Oficial.
Artículo L233-17 Por excepción a lo establecido por las disposiciones del artículo L.233-16, las sociedades mencionadas en dicho
artículo, exceptuando las que emitan valores mobiliarios admitidos a negociación en un mercado regulado o títulos de crédito negociables, quedarán exentas, en las condiciones determinadas por decreto adoptado en Conseil d'Etat, de la obligación de elaborar y publicar cuentas consolidadas y un informe sobre la gestión del grupo:
1º Cuando ellas mismas estén bajo el control de una empresa que las incluya en sus cuentas consolidadas y publicadas. En ese caso, sin embargo, la exención estará subordinada a la condición de que uno o varios accionistas o socios de la empresa controlada que representen al menos la décima parte de su capital social no se opongan a ello;
2º O cuando sobre la base de las últimas cuentas anuales presentadas durante dos ejercicios consecutivos, el conjunto constituido por una sociedad y las empresas que controla no sobrepase un determinado tamaño con referencia a dos de los tres criterios mencionados en el artículo L.123-16.
Artículo L233-18 (Disposición nº 2004-1382 de 20 de diciembre de 2004 Artículo 2 Diario Oficial de 22 de diciembre de 2004)
Las cuentas de las empresas situadas bajo el control exclusivo de la sociedad consolidante serán consolidadas por integración global.
Las cuentas de las empresas controladas conjuntamente con otros accionistas o socios por la sociedad consolidante serán consolidadas por integración proporcional.
Las cuentas de las empresas sobre las que la sociedad consolidante ejerza una influencia notable serán consolidadas por equiparación.
Nota: Resolución 2004-1382 2004-12-20 art. 12: Lo dispuesto en la presente resolución será de aplicación a partir del primer ejercicio abierto después de 1 de enero de 2005.
Artículo L233-19 I. - No obstante la justificación en el anexo explicativo elaborado por la sociedad consolidante, una filial o una
participación quedará excluida de la consolidación cuando por restricciones severas y duraderas sea cuestionado sustancialmente su control o la influencia ejercida por parte de la sociedad consolidante sobre la filial o la participación o las posibilidades de transferencia de fondos por la filial o la participación.
II. - Con la misma condición, una filial o una participación podrá ser excluida de la consolidación: 1º Cuando posean las acciones o participaciones de esta filial o participación sólo con el fin de una cesión ulterior; 2º Cuando la filial o la participación sólo represente, sola o con otras, un interés insignificante con relación al
objetivo definido en el artículo L.233-21; 3º Cuando las informaciones necesarias para la elaboración de las cuentas consolidadas sólo puedan ser
obtenidas mediante gastos excesivos o en plazos incompatibles con los establecidos en aplicación de las disposiciones del artículo L.233-27.
Artículo L233-20 Las cuentas consolidadas incluirán el balance y la cuenta de resultados consolidados así como un anexo
explicativo: formarán un todo indisociable. Para ello, las empresas incluidas en la consolidación estarán obligadas a hacer llegar a la sociedad consolidante
las informaciones necesarias para la elaboración de las cuentas consolidadas.
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CÓDIGO DE COMERCIO Las cuentas consolidadas serán elaboradas y publicadas según las condiciones determinadas por decreto
adoptado en Conseil d'Etat previo dictamen del Consejo Nacional de Contabilidad. Este decreto determinará sobre todo la clasificación de los elementos del balance y de la cuenta de resultados así como las anotaciones a incluir en el anexo explicativo.
Artículo L233-21 Las cuentas consolidadas deberán ser regulares y exactas y dar una imagen fidedigna del patrimonio, de la
situación financiera así como del resultado del conjunto constituido por las empresas incluidas en la consolidación. Se aplicarán, en su caso, las disposiciones previstas en los párrafos primero y segundo del artículo L.123-14.
Artículo L233-22 Sin perjuicio de lo dispuesto en el artículo L.233-23, las cuentas consolidadas se elaborarán según los principios
contables y las normas de valoración contenidas en el presente Código realizando las adaptaciones indispensables derivadas de las características propias de las cuentas consolidadas con respecto a las cuentas anuales.
Los elementos del activo y del pasivo, los elementos de gastos y beneficios incluidos en las cuentas consolidadas serán valorados según métodos homogéneos, salvo que los procesos necesarios tengan un coste desproporcionado y una incidencia insignificante sobre el patrimonio, la situación financiera y el resultado consolidados.
Artículo L233-23 Sin perjuicio de la obligación de justificarlo en el anexo explicativo, la sociedad consolidante podrá hacer uso, en
las condiciones previstas en el artículo L.123-17, de las normas de valoración determinadas por el reglamento del Comité de Reglamentación Contable, y destinadas a:
1º Tener en cuenta las variaciones de precio o de los valores de sustitución; 2º Evaluar los bienes fungibles considerando que el primer bien saliente es el último bien entrante; 3º Permitir tener en cuenta las normas que no estén en conformidad con las fijadas por los artículos L.123-18 a
L.123-21.
Artículo L233-24 (Disposición nº 2004-1382 de 20 de diciembre de 2004 Artículo 1 Diario Oficial de 22 de diciembre de 2004)
Cuando utilicen las normas contables internacionales adoptadas por reglamento de la Comisión Europea, las sociedades mercantiles que elaboran y publican cuentas consolidadas en el sentido del artículo L. 233-16 estarán eximidas del cumplimiento de las normas contables contempladas en los artículos L. 233-18 a L. 233-23 para elaborar y publicar sus cuentas consolidadas.
Nota: Resolución 2004-1382 2004-12-20 art. 12: Lo dispuesto en la presente resolución será de aplicación a partir del primer ejercicio abierto después de 1 de enero de 2005.
Artículo L233-25 Sin perjuicio de que se justifique en el anexo explicativo, las cuentas consolidadas podrán ser elaboradas en un
fecha diferente a las de las cuentas anuales de la sociedad consolidante. Si la fecha de cierre del ejercicio de una empresa incluida en la consolidación es anterior en más de tres meses a
la fecha de cierre del ejercicio de consolidación, las cuentas consolidadas serán elaboradas basándose en las cuentas provisionales controladas por un auditor de cuentas o, si no lo hubiera, por un profesional encargado del control de cuentas.
Artículo L233-26 El informe sobre la gestión del grupo expondrá la situación del conjunto constituido por las empresas incluidas en la
consolidación, su evolución previsible, los hechos importantes acaecidos entre la fecha de cierre del ejercicio de consolidación y la fecha en la que las cuentas consolidadas hayan sido elaboradas así como sus actividades en materia de investigación y desarrollo. Este informe podrá ser incluido en el informe de gestión mencionado en el artículo L.232-1.
Artículo L233-27 Un decreto adoptado en Conseil d'Etat determinará las condiciones en las que las cuentas consolidadas y el
informe de gestión del grupo serán puestos a disposición de los auditores de cuentas.
Artículo L233-28 Las personas jurídicas que tengan la condición de comerciante que, sin estar obligadas a ello en razón de su forma
jurídica o del tamaño del conjunto del grupo, publiquen cuentas consolidadas, tendrán que ajustarse a las disposiciones de los artículos L.233-16 y L.233-18 a L.233-27. En ese caso, cuando sus cuentas anuales sean certificadas en las condiciones previstas en el párrafo primero del artículo L.225-235, sus cuentas consolidadas lo serán en las condiciones previstas en el párrafo segundo de dicho artículo.
Sección IV De las participaciones recíprocas Artículos L233-29 a
L233-31
Artículo L233-29 Una sociedad por acciones no podrá poseer acciones de otra sociedad, si ésta poseyera una fracción de su capital
superior al 10%.
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CÓDIGO DE COMERCIO A falta de acuerdo entre las sociedades interesadas para regularizar la situación, la que posea la menor fracción de
capital de la otra deberá transferir su inversión. Si las inversiones recíprocas son de igual importancia, cada una de las sociedades deberá reducir la suya, de tal modo que no exceda del 10% del capital de la otra.
Cuando una sociedad esté obligada a transferir las acciones de otra sociedad, la transferencia deberá efectuarse en el plazo determinado por decreto adoptado en Conseil d'Etat. La sociedad no podrá ejercer los derechos de voto vinculados a esas acciones.
Artículo L233-30 Si una sociedad que no fuera sociedad por acciones contara entre sus socios a una sociedad por acciones que
poseyera una fracción de su capital superior al 10%, la primera no podrá poseer acciones emitidas por esta última. Si ésta llegase a poseerlas, deberá transferirlas en el plazo determinado por decreto adoptado en Conseil d'Etat y
no podrá ejercer el derecho de voto vinculado a ellas. Si una sociedad que no sea sociedad por acciones cuenta entre sus socios a una sociedad por acciones que
posea una fracción de su capital igual o inferior al 10%, sólo podrá poseer una fracción igual o inferior al 10% de las acciones emitidas por ésta última.
Si llegase a poseer una fracción mayor, deberá ceder el excedente en el plazo determinado por decreto de Estado y no podrá, en razón de este excedente, ejercer el derecho de voto.
Artículo L233-31 Cuando existan acciones o derechos de voto de una sociedad que sean poseídos por una o varias sociedades de
las que la primera posea directa o indirectamente el control, los derechos de voto vinculados a estas acciones o estos derechos de voto no podrán ser ejercidos en la junta general de la sociedad. No serán tenidos en cuenta para el cálculo del quórum.
CAPITULO IV Del procedimiento de alerta Artículos L234-1 a
L234-4
Artículo L.234-1 (Ley nº 2005-845 de 26 de julio de 2005 art. 162 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando el auditor de cuentas de una sociedad anónima detecte, en el ejercicio de su misión, hechos que puedan comprometer la continuidad de la explotación, informará de ello al presidente del consejo de administración o del directorio en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
A falta de respuesta en los quince días siguientes o si esta no permitiese garantizar la continuidad de la explotación, el auditor de cuentas solicitará en un escrito, cuya copia será remitida al presidente del consejo de administración o del directorio, que el consejo de administración o el consejo de supervisión incluya estos hechos en sus deliberaciones. El auditor de cuentas será convocado a esta sesión. Los acuerdos tomados por el consejo de administración o el consejo de supervisión serán comunicados al presidente del Tribunal de Commerce y al comité de empresa o, en su defecto, a los delegados del personal.
En caso de incumplimiento de estas disposiciones, o si el auditor de cuentas comprobara que a pesar de los acuerdos tomados la continuidad de la explotación sigue en peligro, se convocará una junta general en las condiciones y plazos fijados por decreto adoptado en Conseil d'Etat. El auditor de cuentas elaborará un informe especial que será presentado en la siguiente junta generaL.Dicho informe será remitido al comité de empresa o, en su defecto, a los delegados del personal.
Si tras la reunión de la junta general, el auditor de cuentas comprobase que los acuerdos tomados no permiten asegurar la continuidad de la explotación, informará de sus gestiones al presidente del Tribunal de commerce y le comunicará los resultados de las mismas.
Artículo L.234-2 (Ley nº 2005-845 de 26 de julio de 2005 art. 162 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En las sociedades que no sean sociedades anónimas, el auditor de cuentas solicitará al dirigente, en las condiciones determinadas por decreto adoptado en Conseil d'Etat, explicaciones sobre los acontecimientos citados en el párrafo primero del artículo L.234-1. El dirigente estará obligado a responderle en un plazo de quince días contados a partir de la petición de explicaciones. La respuesta será comunicada al comité de empresa o, en su defecto, a los delegados del personal y, si lo hubiese, al consejo de supervisión. El auditor de cuentas informará de todo ello al presidente del Tribunal de commerce.
En caso de incumplimiento de estas disposiciones, o si se comprobara que a pesar de los acuerdos tomados la continuidad de la explotación sigue en peligro, el auditor de cuentas realizará un informe especial y solicitará al dirigente, en un escrito cuya copia será remitida al presidente del Tribunal de Commerce, que convoque une junta general en las condiciones y plazos fijados por decreto adoptado en Conseil d'Etat para que esta delibere sobre los hechos en cuestión.
Si tras la reunión de la junta general, el auditor de cuentas comprobase que los acuerdos tomados no permiten asegurar la continuidad de la explotación, informará de sus gestiones al presidente del Tribunal de commerce y le comunicará los resultados de las mismas.
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CÓDIGO DE COMERCIO Artículo L.234-3
El comité de empresa o, en su defecto, los delegados del personal ejercerán en las sociedades mercantiles las atribuciones previstas en los artículos L.422-4 y L.432-5 del Código de Trabajo.
El presidente del consejo de administración, el directorio o los gerentes, según el caso, comunicarán a los auditores de cuentas las peticiones de explicación formuladas por el comité de empresa o por los delegados del personal, los informes dirigidos al consejo de administración o al consejo de supervisión, según el caso, así como las respuestas dadas por estos órganos, en aplicación de los artículos L.422-4 y L.432-5 del Código de Trabajo.
Artículo L.234-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 162 IV Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Lo dispuesto en el presente capítulo no será de aplicación en el caso de un procedimiento de conciliación o de salvaguarda incoado por los dirigentes con arreglo a lo dispuesto en los títulos I y II del libro VI.
CAPITULO V De las nulidades Artículos L235-1 a
L235-5
Artículo L235-1 La nulidad de una sociedad o de un acta que modifique los estatutos sólo podrá provenir de una disposición
expresa del presente libro o de las leyes que regulen la nulidad de los contratos. En lo referente a las sociedades de responsabilidad limitada y a las sociedades por acciones, la nulidad de la sociedad no podrá ser por causa ni de un vicio de consentimiento ni de la incapacidad, a menos que ésta afecte a todos los socios fundadores. La nulidad de la sociedad tampoco podrá tener su causa en las cláusulas prohibidas por el artículo 1844-1 del Código Civil.
La nulidad de actas o acuerdos que no sean los previstos en el párrafo anterior sólo podrá ser motivada por infracción de una norma imperativa del presente libro o de las leyes que regulen los contratos.
Artículo L235-2 En las sociedades colectivas y comanditarias simples, será obligatorio el cumplimiento de los requisitos formales
de publicidad bajo pena de nulidad de la sociedad, del acta o del acuerdo, según los casos, sin que los socios ni la sociedad puedan alegar esta causa de nulidad frente a terceros. Sin embargo, si no hubiese constancia de fraude, el Tribunal tendrá la facultad de no declarar dicha nulidad.
Artículo L235-2-1 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 134 III Diario Oficial de 2 de agosto de 2003)
Serán nulos los acuerdos tomados infringiendo las disposiciones que regulan los derechos de voto vinculados a las acciones.
Artículo L235-3 La acción de nulidad se extinguirá cuando la causa de nulidad haya dejado de existir en el día en que el Tribunal
resuelva en primera instancia sobre el fondo de la cuestión, salvo si esta nulidad se fundase en la ilicitud del objeto social.
Artículo L235-4 El Tribunal de commerce, requerido para una acción de nulidad, podrá, incluso de oficio, determinar un plazo para
permitir subsanar las causas de nulidad. No podrá declarar la nulidad antes de que transcurran dos meses desde la fecha de interposición de la demanda.
Si para subsanar una causa de nulidad se debiera convocar una junta o efectuarse una consulta a los socios, y si estuviera justificada una convocatoria regular de una junta o un envío a los socios del texto de los proyectos de decisión acompañado de los documentos que deben serles presentados, el Tribunal decidirá por resolución el plazo necesario para que los socios puedan tomar un acuerdo.
Artículo L235-5 Si, finalizado el plazo previsto en el artículo L.235-4, no se hubiera tomado ningún acuerdo, el Tribunal resolverá la
demanda de la parte más diligente.
CAPITULO VI De la fusión y de la escisión Artículos L235-6 a
L236-24
Sección I Disposiciones generales Artículos L235-6 a
L236-7
Artículo L235-6 En caso de nulidad de una sociedad o de actas y acuerdos posteriores a su constitución, motivada por un vicio del
consentimiento o por la incapacidad de un socio, y cuando sea posible su regularización, cualquier persona que tenga interés en ello podrá requerir a aquél que pueda efectuarla, que proceda a regularizarla o que inicie un procedimiento de nulidad en un plazo de seis meses so pena de preclusión. Este requerimiento será comunicado a la sociedad.
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CÓDIGO DE COMERCIO La sociedad o un socio podrá presentar, al Tribunal ante el que se interpuso la demanda, en el plazo previsto en el
párrafo anterior, cualquier medida susceptible de suprimir el interés del demandante, sobre todo por rescate de sus derechos sociales. En este caso, el Tribunal podrá, o bien declarar la nulidad, o bien declarar obligatorias las medidas propuestas, siempre y cuando éstas hayan sido previamente adoptadas por la sociedad en las condiciones previstas para las modificaciones estatutarias. El voto del socio que solicite el rescate de sus derechos no influirá en el acuerdo que adopte la sociedad.
En caso de impugnación, el valor de los derechos sociales que se le deban reembolsar al socio será determinado de acuerdo a las disposiciones del artículo 1843-4 del Código Civil. Cualquier cláusula en contrario se tendrá por no puesta.
Artículo L235-7 Cuando la nulidad de actas y acuerdos posteriores a la constitución de la sociedad esté fundada en la infracción de
las normas de publicidad, toda persona que tenga interés en la regularización del acta podrá requerir a la sociedad que proceda a realizarla, en el plazo determinado por decreto adoptado en Conseil d'Etat. Si la regularización no se produjera en este plazo, todo interesado podrá solicitar el nombramiento, por resolución judicial, de un mandatario encargado de cumplir este requisito formal.
Artículo L235-8 La nulidad de una operación de fusión o de escisión sólo podrá producirse a causa de la nulidad del acuerdo de
una de las juntas que hayan decidido la operación o de la falta de depósito de la declaración de conformidad mencionada en el tercer párrafo del artículo L.236-6.
Cuando sea posible remediar la irregularidad susceptible de provocar la nulidad, el Tribunal requerido para resolver la acción de nulidad de una fusión o de una escisión concederá a las sociedades interesadas un plazo para regularizar su situación.
Artículo L235-9 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 XVI Diario Oficial de 26 de junio de 2004)
Las acciones de nulidad de la sociedad o de actas o acuerdos posteriores a su constitución prescribirán a los tres años contados desde el día en que haya sobrevenido la nulidad, sin perjuicio de la preclusión prevista en el artículo L.235-6.
Sin embargo, la acción de nulidad de una fusión o de una escisión de sociedades prescribirá a los seis meses a partir de la fecha de la última inscripción en el Registro de Comercio y de Sociedades necesaria para la operación.
La acción de nulidad basada en el artículo L. 225-149-3 prescribirá en el plazo de tres meses a partir de la fecha de celebración de la junta general siguiente a la decisión de ampliación de capital.
Artículo L235-10 Cuando se declare la nulidad de la sociedad se procederá a su liquidación de conformidad con las disposiciones de
los estatutos del capítulo VII del presente título.
Artículo L235-11 Cuando una resolución judicial que declare la nulidad de una fusión o de una escisión sea definitiva, esta
resolución será objeto de publicidad con las condiciones que se determinarán por un decreto adoptado en Conseil d'Etat.
No tendrá efecto sobre las obligaciones a cargo o en beneficio de las sociedades a las que el o los patrimonios sean transferidos entre la fecha en la que tiene efecto la fusión o la escisión y la de la publicación de la resolución que declare su nulidad.
En el caso de la fusión, las sociedades que hayan participado en la operación serán solidariamente responsables de la ejecución de las obligaciones a cargo de la sociedad absorbente mencionadas en el párrafo anterior. Lo mismo ocurrirá, en el caso de escisión, con respecto a la sociedad escindida para las obligaciones de las sociedades a las que el patrimonio sea transferido. Cada una de las sociedades a las que se transfiere el patrimonio responderá de las obligaciones a su cargo surgidas entre la fecha en que tiene efecto la escisión y la de la publicación de la resolución que declare la nulidad.
Artículo L235-12 Ni la sociedad ni los socios podrán hacer valer una nulidad frente a terceros de buena fe. Sin embargo, la nulidad
que provenga de la incapacidad o de un vicio de consentimiento será oponible incluso frente a terceros, por el incapacitado y sus representantes legales, o por el socio cuyo consentimiento haya sido obtenido por engaño, dolo o violencia.
Artículo L235-13 La acción de resarcimiento por responsabilidad civil fundada en la anulación de la sociedad o de las actas o
acuerdos posteriores a su constitución prescribirá a los tres años, contados a partir del día en que la resolución de anulación pase a tener fuerza de cosa juzgada.
La desaparición de la causa de nulidad no será obstáculo para el ejercicio de la acción por daños y perjuicios causados por el vicio del que se acusa a la sociedad, al acta o al acuerdo. Esta acción prescribirá a los tres años a partir del día en que la nulidad haya sido subsanada.
Artículo L235-14 (Introducido por la Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 20 II Diario Oficial de 27 de marzo de
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CÓDIGO DE COMERCIO 2004)
El presidente de los órganos de dirección y de administración o el presidente de sesión de dichos órganos que no hiciera constar en actas las deliberaciones de dichos órganos, será sancionado con la nulidad de los acuerdos adoptados por dichos órganos.
Se ejercitará la acción de nulidad contra todo miembro del directorio o miembro del consejo de supervisión. Esta acción podrá ser ejercitada hasta la aprobación del acta de la segunda reunión del consejo de administración,
del directorio o del consejo de supervisión que siga a las deliberaciones susceptibles de ser anuladas. La misma estará sujeta a lo dispuesto en los artículos L. 235-4 y L. 235-5.
Artículo L236-1 Una o varias sociedades podrán, por vía de fusión, transferir su patrimonio a una sociedad existente o a una nueva
sociedad que constituyan. Una sociedad podrá también, por vía de escisión, transferir su patrimonio a varias sociedades existentes o a varias
sociedades nuevas. Estas posibilidades estarán abiertas a las sociedades en liquidación a condición de que el reparto de sus activos
entre los socios no haya sido objeto de un principio de ejecución. Los socios de las sociedades que transfieran su patrimonio en virtud de las operaciones mencionadas en los tres
párrafos anteriores recibirán participaciones o acciones de la o de las sociedades beneficiarias y, eventualmente, una compensación en efectivo cuyo importe no podrá exceder del 10% del valor nominal de las participaciones o de las acciones adjudicadas.
Artículo L236-2 Las operaciones citadas en el artículo L.236-1 podrán ser realizadas entre sociedades que tengan diferente forma
jurídica. Serán decididas, por cada una de las sociedades interesadas, en las condiciones previstas para la modificación de
sus estatutos. Si la operación acarrease la creación de nuevas sociedades, cada una de éstas se constituirá según las normas
propias de la forma jurídica que adoptase la sociedad. Cuando las operaciones comporten la participación de sociedades anónimas y de sociedades de responsabilidad
limitada, se aplicarán las disposiciones de los artículos L.236-10, L.236-11, L-236-14, L.236-20 y L.236-21.
Artículo L236-3 I. - La fusión o la escisión conllevará la disolución sin liquidación de las sociedades que desaparecen y la
transmisión universal de su patrimonio a las sociedades beneficiarias, en el estado en que se encuentre en la fecha de la realización definitiva de la operación. Ésta conllevará simultáneamente la adquisición por parte de los socios de las sociedades que desaparecen de la condición de socios de las sociedades beneficiarias, en las condiciones determinadas por el contrato de fusión o de escisión.
II. - Sin embargo, no se procederá al canje de participaciones o de acciones de la sociedad beneficiaria por participaciones o acciones de las sociedades que desaparecen cuando esas participaciones o acciones sean poseídas:
1º Por la sociedad beneficiaria o por una persona que actúe en su propio nombre pero por cuenta de esta sociedad;
2º O bien por la sociedad que desaparece o por una persona que actúe en su propio nombre pero por cuenta de esta sociedad.
Artículo L236-4 La fusión o la escisión será efectiva: 1º En caso de creación de una o varias sociedades nuevas, en la fecha de inscripción en el Registro de Comercio y
de Sociedades, de la nueva sociedad o de la última de ellas; 2º En los demás casos, en la fecha de la última junta general que haya aprobado la operación salvo que el contrato
prevea que la operación surtirá efecto en otra fecha, la cual no deberá ser ni posterior a la fecha de cierre del ejercicio en curso de la o de las sociedades beneficiarias ni anterior a la fecha de cierre del último ejercicio cerrado de la o de las sociedades que transmiten su patrimonio.
Artículo L236-5 Por excepción a lo establecido en las disposiciones del párrafo segundo del artículo, L. 236-2 si la operación
proyectada tuviera por efecto aumentar las obligaciones de los socios o accionistas de una o varias de las sociedades en cuestión, tal operación sólo podrá ser aprobada por unanimidad entre dichos socios o accionistas.
Artículo L236-6 Todas las sociedades que participen en una de las operaciones mencionadas en el artículo L.236-1 realizarán un
proyecto de fusión o de escisión. Este proyecto será depositado en la secretaría del Tribunal de commerce correspondiente al domicilio social de
dichas sociedades y será objeto de publicidad cuyas condiciones se fijarán por decreto adoptado en Conseil d'Etat. Bajo pena de nulidad, las sociedades que participen en una de las operaciones mencionadas en los párrafos
primero y segundo del artículo L.236-1 estarán obligadas a depositar en la secretaría una declaración en la que especificarán todos los trámites efectuados para proceder a ellas y en la que afirmarán que la operación ha sido realizada ateniéndose a las leyes y reglamentos. El secretario comprobará, bajo su responsabilidad, que esta declaración se ajusta a las disposiciones del presente artículo.
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CÓDIGO DE COMERCIO Artículo L236-7
Las disposiciones del presente capítulo relativas a los obligacionistas serán aplicables a los titulares de títulos participativos.
Sección II Disposiciones particulares para las sociedades anónimas Artículos L236-8 a
L236-22
Artículo L236-8 Las operaciones citadas en el artículo L.236-1 y realizadas únicamente entre sociedades anónimas estarán sujetas
a las disposiciones de la presente sección.
Artículo L236-9 La fusión será decidida por la junta general extraordinaria de cada una de las sociedades que participan en la
operación. La fusión estará sujeta a la ratificación de las juntas especiales de accionistas mencionadas en los artículos
L.225-99 y L.228-15 de cada una de las sociedades que participen en la operación. El proyecto de fusión será sometido a las juntas especiales de tenedores de certificados de inversión que decidirán
conforme a las normas de la junta general de accionistas, a menos que la sociedad absorbente adquiera esos títulos por simple demanda de su parte, en las condiciones de publicidad cuyas modalidades serán determinadas por decreto adoptado en Conseil d'Etat, y que esta adquisición haya sido aceptada por su junta especial. Todo poseedor de certificados de inversión que no haya cedido sus títulos en el plazo determinado por el decreto adoptado en Conseil d'Etat continuará en la sociedad absorbente en las condiciones determinadas por el contrato de fusión, sin perjuicio de las disposiciones del último párrafo del artículo L.228-30.
El consejo de administración o el directorio de cada una de las sociedades que participen en la operación realizará un informe escrito que será puesto a disposición de los accionistas.
Artículo L236-10 I. - Uno o varios auditores de la fusión, nombrados por resolución judicial, elaborarán bajo su responsabilidad un
informe escrito sobre las condiciones de la fusión. Podrán obtener de cada sociedad la presentación de todos los documentos útiles y proceder a realizar todas las comprobaciones necesarias. Estarán sujetos a las incompatibilidades previstas en el artículo L.225-224 con relación a las sociedades participantes.
II. - Los auditores de la fusión comprobarán que los valores relativos adjudicados a las acciones de las sociedades que participen en la operación sean pertinentes y que la relación de canje sea equitativa.
III. - El o los informes de los auditores de la fusión serán puestos a disposición de los accionistas. Tales informes deberán:
1º Indicar el o los métodos seguidos para la determinación de la relación de canje propuesta; 2º Indicar si este o estos métodos son los adecuados para el caso y mencionar los valores a los que cada uno de
esos métodos conduce, previo dictamen sobre la importancia dada a estos métodos en la determinación del valor establecido;
3º Indicar además las dificultades particulares de valoración, si las hubiera. IV. - Además, los auditores de la fusión evaluarán bajo su responsabilidad el valor de las aportaciones en especie y
los beneficios especiales y establecerán para ello el informe previsto en el artículo L.225-147.
Artículo L236-11 Cuando, desde el momento del depósito en la secretaría del Tribunal de commerce del proyecto de fusión y hasta
el momento de realizar la operación, la sociedad absorbente posea permanentemente la totalidad de las acciones que representen la totalidad del capital de las sociedades absorbidas, no se procederá ni a la aprobación de la fusión por la junta general extraordinaria ni a la realización de los informes mencionados en el último párrafo del artículo L.236-9, y en el artículo L.236-10. La junta general extraordinaria de la sociedad absorbente tomará una decisión a la vista del informe de un auditor de aportaciones, de conformidad con las disposiciones del artículo L.225-147.
Artículo L236-12 Cuando la fusión se realice por creación de una nueva sociedad, ésta podrá constituirse sin otras aportaciones que
las de las sociedades que se fusionen. En todos los casos, el proyecto de estatutos de la nueva sociedad será aprobado por la junta general extraordinaria
de cada una de las sociedades que desaparecen. No será procedente la aprobación por parte de la junta general de la nueva sociedad.
Artículo L236-13 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
El proyecto de fusión se someterá a la aprobación de las juntas de obligacionistas de las sociedades absorbidas, a menos que se ofrezca a dichos obligacionistas, a simple petición de éstos, el reembolso de los títulos. La oferta de reembolso estará sujeta a las condiciones de publicidad determinadas por decreto adoptado en Conseil d'Etat.
Cuando sea procedente el reembolso por simple petición, la sociedad absorbente se convertirá en deudora de los obligacionistas de la sociedad absorbida.
Todo obligacionista que no haya solicitado el reembolso en el plazo determinado por decreto adoptado en Conseil d'Etat conservará su condición en la sociedad absorbente en las condiciones determinadas por el contrato de fusión.
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CÓDIGO DE COMERCIO Artículo L236-14
La sociedad absorbente será deudora de los acreedores no obligacionistas de la sociedad absorbida en sustitución de ésta, sin que esta sustitución conlleve novación con respecto a ellos.
Los acreedores no obligacionistas de las sociedades que participen en la operación de fusión y cuyo crédito sea anterior a la publicidad dada al proyecto de fusión podrán impugnar éste en el plazo determinado por decreto adoptado en Conseil d'Etat. Una resolución judicial denegará esta impugnación u ordenará o bien el reembolso de los créditos, o bien la constitución de garantías si la sociedad absorbente las ofreciese y fuesen consideradas como suficientes.
A falta de reembolso de los créditos o de constitución de las garantías exigidas, no será oponible la fusión a este acreedor.
La impugnación formulada por un acreedor no tendrá por efecto prohibir la continuación de las operaciones de fusión.
Las disposiciones del presente artículo no serán un obstáculo para la aplicación de los convenios que autoricen al acreedor exigir el reembolso inmediato de su crédito en caso de fusión de la sociedad deudora con otra sociedad.
Artículo L236-15 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 XVII Diario Oficial de 26 de junio de 2004)
El proyecto de fusión no será sometido a la aprobación de las juntas de obligacionistas de la sociedad absorbente. Sin embargo, la junta general de los obligacionistas podrá encargar a los representantes del sindicato de obligacionistas que se opongan a la fusión en las condiciones y bajo los efectos previstos en los párrafos segundo y siguientes del artículo L.236-14.
Artículo L236-16 Los artículos L.236-9 y L.236-10 serán aplicables a la escisión.
Artículo L236-17 Cuando la escisión deba ser realizada por aportaciones a nuevas sociedades anónimas, cada una de las nuevas
sociedades podrá ser constituida sin otra aportación que la de la sociedad escindida. En ese caso, y, si las acciones de cada una de las nuevas sociedades son atribuidas a los accionistas de la
sociedad escindida proporcionalmente a sus derechos en el capital de esta sociedad, no será necesario elaborar el informe mencionado en el artículo L.236-10.
En todos los casos, los proyectos de estatutos de las nuevas sociedades serán aprobados por la junta general extraordinaria de la sociedad escindida. No se requerirá que la junta general de cada una de las nuevas sociedades apruebe la operación.
Artículo L236-18 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
El proyecto de escisión será sometido a la aprobación de las juntas de obligacionistas de la sociedad escindida, de acuerdo a las disposiciones del apartado 3º del punto I del artículo L.228-65, a menos que se ofrezca a dichos obligacionistas, por simple petición, el reembolso de los títulos. La oferta de reembolso estará sujeta a las condiciones de publicidad determinadas por decreto adoptado en Conseil d'Etat.
Cuando proceda el reembolso por simple petición, las sociedades beneficiarias de las aportaciones que resulten de la escisión serán deudoras solidarias de los obligacionistas que soliciten el reembolso.
Artículo L236-19 El proyecto de escisión no será sometido a la aprobación de las juntas de obligacionistas de las sociedades a las
que se haya transferido el patrimonio. Sin embargo, la junta ordinaria de los obligacionistas podrá encargar a los representantes del sindicato que formulen una impugnación a la escisión, en las condiciones y con los efectos previstos en los párrafos segundo y siguientes del artículo L.236-14.
Artículo L236-20 Las sociedades beneficiarias de las aportaciones derivadas de la escisión serán deudoras solidarias de los
obligacionistas y de los acreedores no obligacionistas de la sociedad escindida, en sustitución de ésta sin que esta sustitución conlleve novación con respecto a ellos.
Artículo L236-21 Como excepción al régimen general establecido en las disposiciones del artículo L.236-20, se podrá estipular que
las sociedades beneficiarias de la escisión responderán únicamente de la parte del pasivo de la sociedad escindida que respectivamente les corresponda y sin que tengan que responder de forma solidaridad.
En este caso, los acreedores no obligacionistas de las sociedades participantes podrán impugnar la escisión en las condiciones y bajo los efectos previstos en los párrafos segundo y siguientes del artículo L.236-14.
Artículo L236-22 La sociedad que aporte parte de su activo a otra sociedad y la sociedad que se beneficie de esta aportación podrán
decidir de común acuerdo someter la operación a las disposiciones de los artículos L.236-16 al 236-21.
Sección III Disposiciones particulares para las sociedades de responsabilidad limitada Artículos L236-23 a
L236-24
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CÓDIGO DE COMERCIO Artículo L236-23
Las disposiciones de los artículos L.236-10, L.236-11, L.236-14, L.236-20 y L.236-21 serán aplicables a las fusiones o a las escisiones de las sociedades de responsabilidad limitada en beneficio de sociedades con la misma forma jurídica.
Cuando la fusión se realice por aportaciones a una nueva sociedad de responsabilidad limitada, ésta podrá constituirse sin más aportaciones que las de las sociedades que se fusionan.
Cuando la escisión se realice por aportaciones a nuevas sociedades de responsabilidad limitada, éstas podrán ser constituidas sin más aportación que la de la sociedad escindida. En este caso, y si las partes de cada una de las sociedades nuevas son atribuidas a los socios de la sociedad escindida proporcionalmente a sus derechos en el capital de esta sociedad, no será necesario elaborar el informe mencionado en el artículo L.236-10.
En los casos previstos en los dos párrafos anteriores, los socios de las sociedades que desaparecen podrán actuar de pleno derecho en calidad de fundadores de las nuevas sociedades y se procederá de acuerdo a las disposiciones que regulan las sociedades de responsabilidad limitada.
Artículo L236-24 La sociedad que aporte parte de su activo a otra sociedad y la sociedad que se beneficie de esta aportación podrán
decidir de común acuerdo someter la operación a las disposiciones aplicables en caso de escisión por aportaciones a sociedades de responsabilidad limitada existentes.
CAPITULO VII De la liquidación Artículos L237-1 a
L237-31
Sección I Disposiciones generales Artículos L237-1 a
L237-13
Artículo L237-1 Sin perjuicio de lo dispuesto en las disposiciones del presente capítulo, la liquidación de las sociedades estará
regulada por las disposiciones previstas en los estatutos.
Artículo L237-2 La sociedad se encontrará en estado de liquidación desde el momento de su disolución, sea cual fuere la causa,
salvo en el caso previsto en el párrafo tercero del artículo 1844-5 del Código Civil. Su denominación social irá seguida de la mención: "sociedad en liquidación".
La personalidad jurídica de la sociedad subsistirá para las necesidades de liquidación, hasta el cierre de ésta. La disolución de una sociedad sólo producirá efectos frente a terceros desde la fecha en que ésta se publique en el
Registro de Comercio y de Sociedades.
Artículo L237-3 El acta de designación del liquidador será publicada por éste, en las condiciones y en los plazos fijados por decreto
adoptado en Conseil d'Etat, que determinará igualmente los documentos adjuntos que será necesario depositar en el Registro de Comercio y de Sociedades.
Artículo L237-4 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
No podrán ser designados liquidadores las personas a las que se les haya prohibido o privado del derecho a ejercer las funciones de director general, de administrador, de gerente de la sociedad, de miembro del directorio o del consejo de supervisión.
Artículo L237-5 La disolución de la sociedad no conllevará de pleno derecho la rescisión de los contratos de alquileres de los
inmuebles utilizados para su actividad social, incluidas las viviendas que dependan de estos inmuebles. En caso de cesión del contrato de alquiler, si no se puede asegurar la obligación de garantía en los términos de
éste, por resolución judicial, se podrá sustituir por cualquier garantía ofrecida por el cesionario o un tercero, y que sea considerada suficiente.
Artículo L237-6 Salvo consentimiento unánime de los socios, la cesión de todo o de parte del activo de la sociedad en liquidación a
una persona que haya tenido en esta sociedad la condición de socio de una sociedad colectiva, de socio colectivo de una sociedad comanditaria, de gerente, de administrador, de director general, de miembro del consejo de supervisión, de miembro del directorio, de auditor de cuentas o de supervisor, sólo podrá producirse con autorización del Tribunal de commerce, previo dictamen del liquidador y, si lo hubiera, del auditor de cuentas o del supervisor.
Artículo L237-7 Se prohibe la cesión de todo o parte del activo de la sociedad en liquidación al liquidador o a sus empleados o a
sus cónyuges, ascendientes o descendientes.
Artículo L237-8
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CÓDIGO DE COMERCIO (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
La cesión global del activo de la sociedad o la aportación del activo a otra sociedad, particularmente por fusión quedará autorizada:
1º En las sociedades colectivas, por unanimidad de los socios; 2º En las sociedades comanditarias simples, por unanimidad de los socios colectivos y por mayoría en número y en
capital de los comanditarios; 3º En las sociedades de responsabilidad limitada, por la mayoría exigida para la modificación de los estatutos; 4º En las sociedades por acciones, en las condiciones de quórum y de mayoría previstas para las juntas
extraordinarias y, además, en las sociedades comanditarias por acciones, con el acuerdo unánime de los socios colectivos.
Artículo L237-9 Los socios, incluidos los titulares de acciones con dividendo preferente sin derecho de voto, serán convocados al
final de la liquidación para decidir sobre la cuenta definitiva, sobre el finiquito de la gestión del liquidador y la finalización de su mandato y para certificar el cierre de la liquidación.
En su defecto, cualquier socio podrá solicitar judicialmente el nombramiento de un mandatario encargado de realizar dicha convocatoria.
Artículo L237-10 Si la junta para el cierre prevista en el artículo L.237-9 no pudiese llegar a un acuerdo o si se negase a aprobar las
cuentas del liquidador, deberá resolverse judicialmente a petición de éste o de cualquier interesado.
Artículo L237-11 La autorización de cierre de la liquidación será publicada según las condiciones determinadas por decreto
adoptado en Conseil d'Etat.
Artículo L237-12 El liquidador será responsable, tanto con relación a la sociedad como a terceros, de las consecuencias
perjudiciales por las faltas que haya cometido en el ejercicio de sus funciones. La acción de resarcimiento por responsabilidad civil contra los liquidadores prescribirá en las condiciones previstas
en el artículo L.225-254.
Artículo L237-13 Toda acción contra los socios no liquidadores o sus cónyuges supérstites, herederos o causahabientes, prescribirá
en el plazo de cinco años contados a partir de la publicación de la disolución de la sociedad en el Registro de Comercio y de Sociedades.
Sección II Disposiciones aplicables por resolución judicial Artículos L237-14 a
L237-31
Artículo L237-14 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 114 2° Diario Oficial de 16 de mayo de 2001)
I. - En defecto de cláusulas estatutarias o contrato expreso entre las partes, la liquidación de la sociedad disuelta se efectuará según las normas de la presente sección, sin perjuicio de la aplicación de la primera sección del presente capítulo.
II. - Además, una resolución judicial podrá decidir que esta liquidación sea efectuada en las mismas condiciones, a petición:
1º De la mayoría de los socios, en las sociedades colectivas; 2º De socios que representen al menos un 5% del capital, en las sociedades comanditarias simples, las sociedades
de responsabilidad limitada y las sociedades por acciones; 3º De los acreedores sociales. III. - En este caso, las disposiciones de los estatutos contrarias a las del presente capítulo, se tendrán por no
puestas.
Artículo L237-15 Las competencias del consejo de administración, del directorio o de los gerentes finalizarán a partir de la resolución
judicial emitida en aplicación del artículo L. 237-14 o de la disolución de la sociedad si ésta fuese posterior.
Artículo L237-16 La disolución de la sociedad no supondrá el fin de las funciones del consejo de supervisión ni de las de los
auditores de cuentas.
Artículo L237-17 En ausencia de auditores de cuentas, e incluso en las sociedades que no estén obligadas a designarlos, los socios
podrán nombrar a uno o varios supervisores en las condiciones previstas en el punto I del artículo L.237-27. En su defecto, podrán ser nombrados, por resolución judicial, a petición del liquidador o de cualquier interesado.
El acta de nombramiento de los supervisores determinará sus poderes, obligaciones y remuneraciones así como la duración de sus funciones. Incurrirán en la misma responsabilidad que los auditores de cuentas.
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CÓDIGO DE COMERCIO Artículo L237-18
I. - Los socios nombrarán a uno o varios liquidadores, tanto si la disolución fuera resultado del término que fijan los estatutos como si lo fuera por decisión de los socios.
II. - El liquidador será nombrado: 1º En las sociedades colectivas, por unanimidad de los socios; 2º En las sociedades comanditarias simples, por unanimidad de los socios colectivos y por mayoría del capital
entre los comanditarios; 3º En las sociedades de responsabilidad limitada, por la mayoría del capital entre los socios; 4º En las sociedades anónimas, en las condiciones de quórum y de mayoría previstas para las juntas generales
ordinarias; 5º En las sociedades comanditarias por acciones, en las condiciones de quórum y de mayoría previstas para las
juntas generales ordinarias, mayoría que deberá incluir a la unanimidad de los socios colectivos; 6º En las sociedades por acciones simples, por unanimidad de los socios salvo cláusula en contrario.
Artículo L237-19 Si los socios no hubieran podido nombrar a un liquidador, éste será designado por resolución judicial a petición de
cualquier interesado, en las condiciones determinadas por un decreto adoptado en Consejo en Estado.
Artículo L237-20 Si la disolución de la sociedad fuera decidida por resolución judicial, esta resolución designará a uno o a varios
liquidadores.
Artículo L237-21 La duración del mandato del liquidador no podrá exceder de los tres años. Sin embargo, este mandato podrá ser
renovado por los socios o el presidente del Tribunal de commerce, dependiendo de si hubiera sido nombrado por los socios o por resolución judicial.
Si la junta de socios no hubiera podido reunirse válidamente, el mandato será renovado por resolución judicial a petición del liquidador.
Al solicitar la renovación de su mandato, el liquidador indicará las razones por las que no ha podido terminar la liquidación, las medidas que prevé tomar y los plazos necesarios para finalizar la liquidación.
Artículo L237-22 El liquidador será revocado y sustituido según las formas previstas para su nombramiento.
Artículo L237-23 Dentro de los seis primeros meses siguientes a su nombramiento, el liquidador convocará a la junta de socios en la
que informará sobre la situación del activo y del pasivo de la sociedad, sobre la continuidad de las operaciones de liquidación y el plazo necesario para terminarlas. El plazo dado al liquidador para que emita su informe podrá ser ampliado, a petición suya, por resolución judicial hasta doce meses.
En su defecto, se procederá a la convocatoria de la junta o bien por el órgano de control, si lo hubiera, o bien por un mandatario designado por resolución judicial a petición de cualquier interesado.
Si la reunión de la junta fuera imposible o si no se tomara en ella ningún acuerdo, el liquidador solicitará judicialmente las autorizaciones necesarias que conduzcan a la liquidación.
Artículo L237-24 El liquidador representará a la sociedad. Estará investido de las más amplios facultades para realizar el activo,
incluso de forma amistosa. Las restricciones a estos poderes, que se deriven de los estatutos o del acta de nombramiento, no serán oponibles frente a terceros.
Estará habilitado para pagar a los acreedores y repartir el saldo restante. No podrá continuar los negocios en curso o iniciar nuevos por necesidades de la liquidación salvo que haya sido
autorizado para ello, o bien por los socios, o bien por resolución judicial si hubiese sido designado de esta forma.
Artículo L237-25 El liquidador, dentro de los tres meses siguientes al cierre de cada ejercicio, hará constar las cuentas anuales a la
vista del inventario que hubiera elaborado a partir de los diferentes elementos del activo y del pasivo existentes en esta fecha y emitirá un informe escrito por el cual dará cuenta de las operaciones de liquidación efectuadas a lo largo del ejercicio transcurrido.
Salvo dispensa otorgada por resolución judicial, el liquidador, al menos una vez al año y en los seis meses siguientes al cierre del ejercicio, convocará según las condiciones previstas por los estatutos a la junta de socios quien decidirá sobre las cuentas anuales, dará las autorizaciones necesarias y eventualmente renovará el mandato de los supervisores, auditores de cuentas o miembros del consejo de supervisión.
Si la junta no se reuniese, el informe previsto en el párrafo primero será depositado en la secretaría del Tribunal de commerce y presentado a toda persona interesada.
Artículo L237-26 En período de liquidación, los socios podrán tener acceso a los documentos sociales, en las mismas condiciones
que anteriormente.
Artículo L237-27
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CÓDIGO DE COMERCIO I. - Las decisiones previstas en el párrafo segundo del artículo L.237-25 serán tomadas: 1º Por mayoría de los socios en capital, en las sociedades colectivas, en las comanditarias simples y en las de
responsabilidad limitada; 2º En las condiciones de quórum y de mayoría de las juntas ordinarias, en las sociedades por acciones; 3º Salvo cláusula en contrario, por unanimidad de los socios, en las sociedades por acciones simples. II. - Si no se hubiese podido alcanzar la mayoría requerida, se decidirá por resolución judicial a petición del
liquidador o de cualquier persona interesada. III. - Cuando el acuerdo conlleve la modificación de los estatutos, será tomado en las condiciones previstas a tal
efecto para cada forma de sociedad. IV. - Los socios liquidadores podrán tomar parte en la votación.
Artículo L237-28 En caso de continuidad de la explotación social, el liquidador estará obligado a convocar la junta de socios, en las
condiciones previstas en el artículo L.237-25. En su defecto, cualquier persona interesada podrá solicitar la convocatoria, ya sea por los auditores de cuentas, el consejo de supervisión o el órgano de control, o ya sea por un mandatario nombrado por resolución judicial.
Artículo L237-29 Salvo cláusula en contrario de los estatutos, el reparto de los fondos propios que queden tras el reembolso del
nominal de las acciones o de participaciones sociales se efectuará entre los socios en las mismas proporciones que su participación en el capital social.
Artículo L237-30 El reembolso de las acciones con dividendo preferente sin derecho de voto deberá efectuarse antes que el de las
acciones ordinarias. Lo mismo sucederá con el dividendo preferencial que no haya sido íntegramente abonado. Las acciones con dividendo preferente sin derecho de voto tendrán, proporcionalmente a su importe, los mismos
derechos que las otras acciones sobre el superávit de liquidación. Cualquier cláusula en contrario a los dispuesto en el presente artículo se tendrá por no puesta.
Artículo L237-31 Sin perjuicio de los derechos de los acreedores, el liquidador decidirá si será conveniente distribuir los fondos que
hubieran quedado disponibles en el transcurso de la liquidación. Tras el requerimiento infructuoso al liquidador, cualquier interesado podrá solicitar judicialmente que se decida
sobre la conveniencia de un reparto en el proceso de liquidación. La decisión de distribuir los fondos será publicada según las condiciones determinadas por decreto adoptado en
Conseil d'Etat.
CAPITULO VIII De los apercibimientos Artículos L238-1 a
L238-3-1
Artículo L238-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 122 1° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 21 Diario Oficial de 27 de marzo de 2004) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 51 XVIII Diario Oficial de 26 de junio de 2004)
Cuando las personas interesadas no pudieran obtener que se les entregue, remita o permita el acceso a los documentos citados en los artículos L. 221-7, L. 223-26, L. 225-115, L. 225-116, L. 225-117, L. 225-118, L. 225-129, L. 225-129-5, L. 225-129-6, L. 225-135, L. 225-136, L. 225-138, L. 225-177, L. 225-184, L. 228-69, L. 237-3 y L. 237-26, podrán solicitar al presidente del Tribunal que resuelva en procedimiento sumario, para que exija mediante requerimiento al liquidador o a los administradores, gerentes y dirigentes, bajo pena de multa, que dichos documentos sean puestos a disposición o para que nombre a un mandatario encargado de poner dichos documentos a disposición de los interesados.
Podrá ejercitar esta acción cualquier persona interesada que no pudiera obtener del liquidador, de los administradores, gerentes o dirigentes, la entrega de un modelo de poder conforme a las normas establecidas por decreto adoptado en Conseil d'Etat, o la información exigida por dicho decreto en lo concerniente a la celebración de las juntas.
Cuando la demanda sea admitida, la sanción y los gastos de procedimiento correrán a cargo de los administradores, de los gerentes, de los dirigentes o del liquidador encausado.
Artículo L238-2 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 134 V Diario Oficial de 2 de agosto de 2003)
Cualquier interesado podrá solicitar al presidente del Tribunal que resuelva en procedimiento de urgencia para que requiera bajo pena de multa al liquidador el cumplimiento de las obligaciones previstas en los artículos L. 237-21 y L. 237-25.
Artículo L.238-3 (Ley nº 2003-721 de 1 de agosto de 2003 art. 9 3° Diario Oficial de 5 de agosto de 2003)
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CÓDIGO DE COMERCIO (Ley nº 2005-842 de 26 de julio de 2005 art. 11 II Diario Oficial de 27 de julio de 2005)
El Ministerio Fiscal así como cualquier persona interesada podrán solicitar al presidente del Tribunal que resuelva en procedimiento sumario para que intime bajo pena de multa al representante legal de una sociedad de responsabilidad limitada, de una sociedad anónima, de una sociedad por acciones simple, de una sociedad europea, de una sociedad comanditaria por acciones, a incluir la mención en todas las actas o en todos los documentos de la sociedad, de su denominación social, precedida o seguida inmediatamente y de manera legible de las palabras "société de responsabilité limitée" o de las iniciales "SARL" , "société anonyme" o de las iniciales "SA", "société par actions simplifiée" o de las iniciales "SAS", "société européenne" o de las iniciales "SE" o "société en commandite par actions", así como la declaración del capital social.
Artículo L238-4 (Introducido por la Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 20 III Diario Oficial de 27 de marzo de 2004)
Cualquier interesado podrá solicitar al presidente del Tribunal que resuelva en procedimiento sumario, para que exija mediante requerimiento al presidente de dichos órganos de dirección y de administración, bajo pena de multa, que transcriba las actas de dichas reuniones en un registro especial que será conservado en el domicilio social.
Artículo L238-5 (Introducido por la Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 22 III Diario Oficial de 27 de marzo de 2004)
Cualquier interesado podrá solicitar al presidente del Tribunal que resuelva en procedimiento sumario, para que exija mediante requerimiento al presidente de la junta general de accionistas o de obligacionistas, bajo pena de multa, que transcriba las actas de dichas juntas en un registro especial que será conservado en el domicilio social.
Artículo L238-6 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 50 I Diario Oficial de 26 de junio de 2004)
Si la junta especial de accionistas con dividendo preferente no hubiera sido consultada con arreglo a las condiciones previstas en los artículos L. 228 -35-6, L. 228-35-7 y L. 228-35-10, el presidente del Tribunal, resolviendo en procedimiento sumario y previa petición de cualquier accionista, podrá requerir bajo pena de multa a los gerentes o al presidente del consejo de administración o del directorio, para que convoquen dicha junta o designen a un mandatario encargado de proceder a esta convocatoria.
Podrá ejercitar la misma acción cualquier persona o titular de valores mobiliarios que dan acceso al capital, cuando la junta general o especial a la que pertenezca no haya sido consultada en las condiciones previstas en el artículo L. 225-99, en el segundo apartado del artículo L. 225-129-6 y en los artículos L. 228-16 o L. 228-103.
Artículo L.238-3-1 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 II Diario Oficial de 27 de julio de 2005)
Cualquier persona interesada podrá solicitar al presidente del Tribunal que resuelva en procedimiento sumario para que dirija un requerimiento a las sociedades que utilicen las iniciales "SE" en su denominación social contraviniendo lo dispuesto en el artículo 11 del Reglamento (CE) N° 2157/2001 del Consejo, de 8 de octubre de 2001, por el que se aprueba el estatuto de la Sociedad Anónima Europea (SE), instándoles bajo pena de multa a cumplir los dispuesto en dicho artículo.
TITULO IV DISPOSICIONES PENALES Artículos L241-1 a
L248-1
CAPITULO I De las infracciones que afectan a las sociedades de responsabilidad limitada Artículos L241-1 a
L241-9
Artículo L241-1 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-721 de 1 de agosto de 2003 Artículo 9 1° Diario Oficial de 5 de agosto de 2003)
Serán castigados con seis meses de prisión y 9.000 euros de multa los socios de una sociedad de responsabilidad limitada que omitieran en el acta de la sociedad la declaración relativa al reparto de las participaciones sociales entre todos los socios, al desembolso de las participaciones o al depósito de los fondos.
Las disposiciones del presente artículo serán aplicables en caso de ampliación de capital.
Artículo L241-2 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 19 Diario Oficial de 27 de marzo de 2004)
Serán castigados con seis meses de prisión y 9.000 euros de multa los gerentes que omitieran, directamente o por persona interpuesta, cualquier tipo de valores mobiliarios por cuenta de la sociedad, con excepción de las obligaciones emitidas en las condiciones determinadas por el artículo L. 223-11.
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CÓDIGO DE COMERCIO Artículo L241-3 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con dos años de prisión y 375.000 euros de multa: 1º El que atribuya fraudulentamente a una aportación en especie una valoración superior a su valor real; 2º Los gerentes que efectúen entre los socios el reparto de dividendos ficticios, en ausencia de inventario o por
medio de inventarios fraudulentos; 3º Los gerentes que hubieran presentado a los socios, incluso en ausencia de todo reparto de dividendos, cuentas
anuales que no den una imagen fiel del resultado de las operaciones del ejercicio, de la situación financiera y tras la expiración de este período, del patrimonio, con el fin de ocultar la verdadera situación de la sociedad;
4º Los gerentes que hubieran hecho un uso de los bienes o del crédito de la sociedad de mala fe, con pleno conocimiento de que es contrario al interés de ésta, con fines personales o para favorecer a otra sociedad en la que estuvieran interesados directa o indirectamente;
5º Los gerentes que hubieran hecho mal uso, de mala fe, de los poderes que poseen o de los votos de los que disponen con pleno conocimiento de que es contrario a los intereses de la sociedad, para fines personales o para favorecer a otra sociedad o a otra empresa en la que estuvieran directa o indirectamente interesados.
Artículo L241-4 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 122 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán sancionados con multa de 9.000 euros: 1º Los gerentes que no realicen el inventario, elaboren las cuentas anuales ni un informe de gestión en cada
ejercicio; 2 y 3º (suprimidos)
Artículo L241-5 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán castigados con seis meses de prisión 9.000 euros de multa los gerentes que no convocaran la reunión de la junta de los socios dentro de los seis meses siguientes al cierre del ejercicio o, en caso de prórroga, en el plazo determinado por resolución judicial, o que no sometieran a la aprobación de dicha junta o del socio único los documentos previstos en el apartado 1º del artículo L.241-4.
Artículo L241-6 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán castigados con seis meses de prisión y 4.500 euros de multa, cuando los fondos propios de la sociedad llegaran a ser inferiores a la mitad del capital social a causa de las pérdidas constatadas en los documentos contables, los gerentes que:
1º No consultasen a los socios en los cuatro meses posteriores a la aprobación de las cuentas en que se hubieran detectado estas pérdidas, con el fin de decidir si procedería la disolución anticipada de la sociedad;
2º No depositasen en la secretaría del Tribunal de commerce, ni inscribiesen en el Registro de Comercio y de Sociedades, ni publicasen en un periódico de anuncios legales, la decisión adoptada por los socios.
Artículo L241-9 (Ley nº 2003-721 de 1 de agosto de 2003 Artículo 9 5° Diario Oficial de 5 de agosto de 2003)
Las disposiciones de los artículos L. 241-2 a L. 241-6 serán aplicables a toda persona que, directamente o por persona interpuesta, haya ejercido de hecho la gestión de una sociedad de responsabilidad limitada al amparo o en sustitución de su gerente legal.
CAPITULO II De las infracciones que afectan a las sociedades anónimas Artículos L242-1 a
L242-31
Sección I De las infracciones relativas a la constitución Artículos L242-1 a
L242-5
Artículo L242-1 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán sancionados con multa de 9.000 euros los fundadores, el presidente, los administradores o los directores generales de una sociedad anónima que emitieran acciones o partes de acciones o bien antes de la inscripción de dicha sociedad en el Registro de Comercio y de Sociedades, o bien en cualquier momento si la inscripción hubiera sido realizada por fraude, o bien sin haber cumplido con los requisitos formales de constitución.
Se podrá imponer, además, una pena de un año de prisión en el caso de que las acciones o las partes de acciones
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CÓDIGO DE COMERCIO se hubieran emitido sin que las acciones por suscripción dineraria hubieran sido desembolsadas al menos en una cuarta parte o sin que las acciones por aportaciones no dinerarias hubieran sido íntegramente desembolsadas antes de la inscripción de la sociedad en el Registro de Comercio y de Sociedades.
Se aplicarán las penas previstas en el párrafo anterior a las personas citadas en el primer párrafo, por no mantener las acciones dinerarias en la forma nominativa hasta su completa liberación.
Las penas previstas en el presente artículo podrán ser aumentadas al doble, cuando se trate de sociedades anónimas que hagan llamamiento público al ahorro.
Artículo L242-2 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 122 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con cinco años de prisión y 9.000 euros de multa, el que: 1º, 2º y 3º (suprimidos); 4º Hubiese atribuido fraudulentamente a una aportación en especie una valoración muy superior a su valor real.
Artículo L242-3 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 122 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán castigados con un año de prisión y 9.000 euros de multa los fundadores, el presidente del consejo de administración, los administradores o los directores generales de una sociedad anónima, así como los titulares o tenedores de acciones que negociaran:
1º Acciones dinerarias que no se hubieran mantenido en forma nominativa hasta su entera liberación. 2º Acciones dinerarias para las cuales no se hubiera efectuado el pago de la cuarta parte; 3º (suprimido).
Artículo L242-4 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 50 Diario Oficial de 26 de junio de 2004)
Será castigado con las penas previstas en el artículo L. 242-3 el que hubiese realizado o publicado la valoración de las acciones o promesas de acciones citadas en dicho artículo.
Artículo L242-5 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con seis meses de prisión y 9.000 euros de multa el que aceptara o conservara las funciones de auditor de cuentas a pesar de las incompatibilidades o de las prohibiciones legales.
Sección II De las infracciones relativas a la dirección y a la administración Artículos L242-6 a
L242-8
Artículo L242-6 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con cinco años de prisión y 375.000 euros de multa: 1º El presidente, los administradores o los directores generales de una sociedad anónima que efectuaran entre los
accionistas el reparto de dividendos ficticios en ausencia de inventario o por medio de inventarios fraudulentos; 2º El presidente, los administradores o los directores generales de una sociedad anónima que publicaran o
presentaran a los accionistas, incluso en ausencia de reparto de dividendos, cuentas anuales que no diesen, para cada ejercicio, una imagen fidedigna del resultado de las operaciones del ejercicio, de la situación financiera y del patrimonio, tras la expiración de este período, con vistas a ocultar la verdadera situación de la sociedad;
3º El presidente, los administradores o los directores generales de una sociedad anónima que hicieran de los bienes o del crédito de la sociedad, de mala fe, un uso contrario al interés de ésta, con pleno conocimiento de ello, para fines personales o para favorecer a otra sociedad o empresa en la que estén interesados directa o indirectamente;
4º El presidente, los administradores o los directores generales de una sociedad anónima que hicieran de mala fe un uso contrario a los intereses de la sociedad de los poderes que poseen o de los votos de los que disponen por su condición, con pleno conocimiento de ello, para fines personales o para favorecer a otra sociedad o empresa en la que ellos estuvieran interesados, directa o indirectamente.
Artículo L242-8 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán sancionados con multa de 9.000 euros el presidente, los administradores o los directores generales de una sociedad anónima, que no hagan inventario ni elaboren las cuentas anuales ni un informe de gestión para cada ejercicio.
Sección III
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CÓDIGO DE COMERCIO De las infracciones relativas a las juntas de accionistas Artículos L242-9 a
L242-15
Artículo L242-9 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 134 I Diario Oficial de 2 de agosto de 2003)
Se castigará con dos años de prisión y 9.000 euros de multa: 1º El que impidiera a un accionista participar en una junta de accionistas; 2° Apartado derogado 3º El que se hiciera conceder, garantizar o prometer beneficios por el hecho de votar en un determinado sentido o
por no participar en la votación, así como el que concediera, garantizara o prometiera dichos beneficios.
Artículo L242-10 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán castigados con seis meses de prisión y 9.000 euros de multa el presidente o los administradores de una sociedad anónima, que no convocasen la reunión de la junta general ordinaria en los seis meses posteriores al cierre del ejercicio o, en caso de prórroga, en el plazo concedido por resolución judicial o que no sometieran a la aprobación de dicha junta las cuentas anuales ni el informe de gestión previstos en el artículo L. 232-1.
Artículo L242-15 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 134 I Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 22 Diario Oficial de 27 de marzo de 2004)
Serán sancionados con multa de 3.750 euros el presidente o los administradores de una sociedad anónima: 1º Párrafo derogado. 2º Que no adjunten a la lista de asistencia los poderes dados a cada mandatario; 3º Que no procedan a la certificación de las decisiones de las junta de accionista por un acta firmada por los
miembros de la mesa que mencione: la fecha y el lugar de la reunión, el modo de convocatoria, el orden del día, la composición de la mesa, el número de acciones que participaron en la votación y el quórum alcanzado, los documentos e informes sometidos a la junta, un resumen de los debates, el texto de las resoluciones sometidas a votación y los resultados de las mismas.
Sección IV De las infracciones relativas a las modificaciones del capital social Artículos L242-17 a
L242-24
Subsección 1 De la ampliación de capital Artículos L242-17 a
L242-21
Artículo L242-17 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
I. - Serán sancionados con multa de 9.000 euros el presidente, los administradores o los directores generales de una sociedad anónima, que emitan, en una ampliación de capital, acciones o partes de acciones:
1º O bien antes de que el depositario expida el certificado, o de que el contrato de garantía previsto en el artículo L.225-145 esté firmado;
2º O bien sin que se hubiesen cumplido regularmente los requisitos formales previos a la ampliación de capital. II. - Podrá ser condenado, además, a un año de prisión, si las acciones o las partes de acciones fueran emitidas sin
que el capital de la sociedad anteriormente suscrito hubiera sido íntegramente desembolsado, o sin que las nuevas acciones por aportaciones no dinerarias hubieran sido íntegramente desembolsadas antes de la inscripción modificativa en el Registro de Comercio y de Sociedades, o incluso, sin que las acciones dinerarias nuevas hubieran sido desembolsadas, en el momento de la suscripción, en al menos un cuarto de su valor nominal y, en su caso, de la totalidad de la prima de emisión.
III. - Se impondrán las penas de multa y de prisión previstas en los puntos I y II a las mismas personas, cuando no mantuvieran las acciones dinerarias en la forma nominativa hasta su completa liberación.
IV. - Las penas previstas en el presente artículo podrán ser aumentadas al doble, cuando se trate de sociedades que hagan llamamiento público al ahorro.
V.- Las disposiciones del presente artículo no serán aplicables ni a las acciones que hubieran sido regularmente emitidas por conversión de obligaciones convertibles permanentemente, o por utilización de los bonos de suscripción, ni a las acciones emitidas en las condiciones previstas en los artículos L.232-18 al 232-20.
Artículo L242-20
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CÓDIGO DE COMERCIO (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigados con dos años de prisión y 18.000 euros de multa el presidente, los administradores o los auditores de cuentas de una sociedad anónima, que dieran o confirmaran indicaciones inexactas en los informes presentados a la junta general convocada para decidir la supresión del derecho preferencial de suscripción de los accionistas.
Artículo L242-21 Las disposiciones de los artículos L.242-2 a L.242-5 relativas a la constitución de sociedades anónimas serán
aplicables en caso de ampliación de capital.
Subsección 2 De la reducción de capital Artículos L242-23 a
L242-24
Artículo L242-23 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán sancionados con multa de 9.000 euros el presidente o los administradores de una sociedad anónima que procedan a una reducción de capital social:
1º Sin respetar la igualdad de los accionistas; 2º Sin proporcionar publicidad a la decisión de reducción de capital en el Registro de Comercio y de Sociedades y
en un periódico habilitado para recibir los anuncios legales.
Artículo L242-24 Serán sancionados con la pena prevista en el artículo L.242-23, el presidente, los administradores o los directores
generales de una sociedad anónima, que no suscribieran, adquirieran, tomaran en prenda, conservaran o vendieran, en nombre de la sociedad, acciones emitidas por ésta infringiendo las disposiciones de los artículos L.225-206 a L.225-215.
Estarán sujetos a la misma pena el presidente, los administradores o los directores generales, que utilizaran acciones compradas por la sociedad, en aplicación del artículo L.225-208, con fines distintos a los previstos en dicho artículo.
Estarán sujetos a la misma pena el presidente, los administradores o los directores generales de una sociedad anónima, que efectuaran, en nombre de ésta, las operaciones prohibidas por el párrafo primero del artículo L.225-216.
Sección VI De las infracciones relativas a la disolución Artículo L242-29
Artículo L242-29 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán castigados con seis meses de prisión y 4.500 euros de multa el presidente o los administradores de una sociedad anónima, cuando los fondos propios de la sociedad llegaran a ser inferiores a la mitad del capital social por causa de pérdidas constatadas en los documentos contables, siempre y cuando:
1º No convocaran la junta general extraordinaria, en los cuatro meses siguientes a la aprobación de las cuentas que hubieran detectado las pérdidas, con el fin de decidir si procedería la disolución anticipada de la sociedad;
2º No depositaran en la secretaría del Tribunal de commerce, ni inscribieran en el Registro de Comercio y de Sociedades ni publicaran en un periódico de anuncios legales el acuerdo adoptado por la junta general.
Sección VII De las infracciones relativas a las sociedades anónimas dotadas de directorio y
de consejo de supervisión Artículo L242-30
Artículo L242-30 (Ley nº 2003-721 de 1 de agosto de 2003 Artículo 9 6° Diario Oficial de 5 de agosto de 2003)
Serán aplicables las sanciones previstas por los artículos L.242-6 a L.242-29 y L.246-1 a los presidentes, los directores generales y los administradores de las sociedades anónimas, según sus respectivas atribuciones, a los miembros del directorio y a los miembros del consejo de supervisión de las sociedades anónimas reguladas por las disposiciones de los artículos L.225-57 a L.225-93.
Las disposiciones del artículo L.246-2 serán aplicables además a las sociedades anónimas reguladas por los artículos L.225-57 a L.225-93.
Sección VIII De las infracciones relativas a las sociedades anónimas laborales Artículo L242-31
Artículo L242-31 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán sancionados con multa de 3.750 euros el presidente, los administradores o los directores generales de una
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CÓDIGO DE COMERCIO sociedad anónima laboral que en uso de su facultad para emitir acciones laborales, no mencionaran esta circunstancia por la adición de las palabras "laboral" en todas las actas o en todos los documentos emitidos por la sociedad y destinados a terceros.
CAPITULO III De las infracciones que afectan a las sociedades comanditarias por acciones Artículo L243-1
Artículo L243-1 Los artículos L. 242-1 a L. 242-29 se aplicarán a las sociedades comanditarias por acciones. Las penas previstas para los presidentes, los administradores o los directores generales de las sociedades
anónimas se aplicarán, en lo que concierne a sus atribuciones, a los gerentes de las sociedades comanditarias por acciones.
CAPITULO IV De las infracciones que afectan a las sociedades por acciones simples Artículos L244-1 a
L244-4
Artículo L244-1 Los artículos L. 242-1 a L. 242-6, L. 242-8, L. 242-17 a L. 242-29 se aplicarán a las sociedades por acciones
simples. Las penas previstas para el presidente, los administradores o los directores generales de las sociedades anónimas
serán aplicables al presidente y a los dirigentes de las sociedades por acciones simples. Los artículos L.242-20, L.242-26 y L.242-27 se aplicarán a los auditores de cuentas de las sociedades por acciones
simples.
Artículo L244-2 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 128 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-721 de 1 de agosto de 2003 Artículo 9 4° Diario Oficial de 5 de agosto de 2003)
Será castigado con 6 meses de prisión y 7.500 euros de multa el presidente o dirigente de una sociedad por acciones simple que no consultara a los socios en las condiciones previstas en los estatutos, en caso de ampliación, amortización o reducción de capital, de fusión, de escisión, de disolución o de transformación en una sociedad con otra forma jurídica.
Artículo L244-3 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán sancionados con multa de 18.000 euros los dirigentes de una sociedad por acciones simple que hicieran llamamiento público al ahorro.
Artículo L244-4 Las disposiciones de los artículos L. 244-1, L. 244-2 y L. 244-3 serán aplicables a toda persona que, directamente
o por persona interpuesta, haya ejercido de hecho la dirección de una sociedad por acciones simple bajo el amparo o en sustitución del presidente y de los dirigentes de esta sociedad.
CAPITULO IV bis De las infracciones que afectan a las sociedades europeas Artículo L244-5
Artículo L.244-5 (Introducido por la Ley nº 2005-842 de 26 de julio de 2005 art. 11 I Diario Oficial de 27 de julio de 2005)
Los artículos L.242-1 a L.242-30 se aplicarán a las sociedades europeas. Las penas previstas para el presidente, los administradores, los directores generales, los miembros del directorio o
los miembros del consejo de supervisión de las sociedades anónimas serán aplicables al presidente, los administradores, los directores generales, los miembros del directorio o los miembros del consejo de supervisión de las sociedades europeas.
El artículo L.242-20 se aplicará a los auditores de cuentas de las sociedades europeas.
CAPITULO V De las infracciones relativas a los valores mobiliarios emitidos por las sociedades
por acciones Artículos L245-3 a L245-17
Sección I De las infracciones relativas a las acciones Artículos L245-3 a
L245-5
Artículo L245-3 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
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CÓDIGO DE COMERCIO (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 50 III Diario Oficial de 26 de junio de 2004)
Serán castigados con seis meses de prisión y 6.000 euros de multa el presidente y los administradores, los directores generales, los miembros del directorio y del consejo de supervisión de una sociedad anónima, los gerentes de una sociedad comanditaria por acciones:
1º Cuya sociedad procediera a la amortización del capital cuando la totalidad de acciones con dividendo preferente sin derecho de voto no hubieran sido íntegramente rescatadas o anuladas;
2º Cuya sociedad, en caso de reducción del capital no motivada por pérdidas y realizada según las condiciones previstas en el artículo L.225-207, no rescatase para su anulación las acciones con dividendo preferente sin derecho de voto antes de las acciones ordinarias.
Artículo L245-4 Serán castigados con las penas previstas en el artículo L.245-3, el presidente y los administradores, los directores
generales, los miembros del directorio y del consejo de supervisión de una sociedad anónima, los gerentes de las sociedades comanditarias por acciones, que posean, directa o indirectamente, en las condiciones previstas por el artículo L.228-17, acciones con dividendo preferente sin derecho de voto de la sociedad que dirigen.
Artículo L245-5 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con seis meses de prisión y 6.000 euros de multa el liquidador de una sociedad que no respetara las disposiciones del artículo L.237-30.
Sección III De las infracciones relativas a las obligaciones Artículos L245-9 a
L245-15
Artículo L245-9 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 23 Diario Oficial de 27 de marzo de 2004)
Serán sancionados con multa de 9.000 euros el presidente, los administradores, los directores generales o los gerentes de una sociedad por acciones, que emitieran por cuenta de esta sociedad, obligaciones negociables que, en una misma emisión, no confirieran los mismos derechos de crédito para un mismo valor nominal.
Artículo L245-11 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 50 IV Diario Oficial de 26 de junio de 2004)
Será castigado con dos años de prisión y 9.000 euros de multa el que 1º Impidiera a un obligacionista participar en una junta general de obligacionistas; 2º Se hiciera otorgar, garantizar o prometer beneficios especiales por el hecho de votar en un cierto sentido o por
no participar en la votación, así como el que otorgara, garantizara o prometiera estos beneficios especiales.
Artículo L245-12 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 50 V Diario Oficial de 26 de junio de 2004)
Serán sancionados con multa de 6.000 euros: 1º El presidente, los administradores, los directores generales, los gerentes, los auditores de cuentas, los miembros
del consejo de supervisión o los empleados de la sociedad deudora o de la sociedad garante de todo o de parte de las obligaciones de la sociedad deudora así como sus ascendientes, descendientes o cónyuges, que representaran obligacionistas en su junta general, o aceptaran ser los representantes del sindicato de obligacionistas;
2º El presidente, los administradores, los directores generales o los gerentes de sociedades poseedores de al menos un 10% del capital de las sociedades deudoras, que tomaran parte en la junta general de los obligacionistas en razón de las obligaciones poseídas por estas sociedades.
Artículo L245-13 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 22 Diario Oficial de 27 de marzo de 2004)
Será sancionado con multa de 4.500 euros el presidente de la junta general de obligacionistas que no hiciera constar los acuerdos de cualquier junta general de obligacionistas en un acta que mencione la fecha y el lugar de la reunión, la forma de convocatoria, el orden del día, la composición de la mesa, el número de obligacionistas participantes en la votación y el quórum alcanzado, los documentos e informes sometidos a la junta, un resumen de los debates, el texto de las resoluciones sometidas a votación y el resultado de las mismas.
Artículo L245-15 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con
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CÓDIGO DE COMERCIO entrada en vigor el 1 de enero de 2002) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 134 IX Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 50 VI Diario Oficial de 26 de junio de 2004)
Las infracciones previstas en los artículos L.245-9 y en los artículos L.245-12 y L.245-13 serán castigadas con la pena de cinco años de prisión y con multa de 18.000 euros cuando hubieran sido cometidas fraudulentamente con vistas a privar a los obligacionistas o a algunos de ellos de una parte de los derechos vinculados a su título de crédito.
Sección IV Disposiciones comunes Artículo L245-16
Artículo L245-16 Las disposiciones del presente capítulo referidas al presidente, los administradores, los directores generales y los
gerentes de sociedades por acciones serán aplicables a toda persona que, directamente o por persona interpuesta, haya ejercido, de hecho, la dirección, la administración o la gestión de dichas sociedades bajo el amparo o en sustitución de sus representantes legales.
Sección V De las infracciones relativas a las sociedades anónimas dotadas de directorio y
de consejo de supervisión Artículo L245-17
Artículo L245-17 Serán aplicables las sanciones previstas por los artículos L.245-1 a L.245-15 a los presidentes, los directores
generales y los administradores de las sociedades anónimas, según sus respectivas atribuciones, a los miembros del directorio y a los miembros del consejo de supervisión de las sociedades anónimas reguladas por las disposiciones de los artículos L.225-57 a L.225-93.
Las disposiciones del artículo L.245-16 serán aplicables además a las sociedades anónimas reguladas por los artículos L.225-57 a L.225-93.
CAPITULO VI De las infracciones comunes a las diversas formas de sociedades por acciones Artículo L246-2
Artículo L.246-2 (Ley nº 2003-721 de 1 de agosto de 2003 art. 9 7º Diario Oficial de 5 de agosto de 2003) (Ley nº 2005-842 de 26 de julio de 2005 art. 11 II Diario Oficial de 27 de julio de 2005)
Las disposiciones de los artículos L.242-1 a L.242-29, L.243-1 y L.244-5, referidas al presidente, los administradores o los directores generales de las sociedades anónimas o de las sociedades europeas y a los gerentes de las sociedades comanditarias por acciones, se aplicarán a toda persona que, directamente o por persona interpuesta, haya ejercido de hecho la dirección, la administración o la gestión de dichas sociedades al amparo o en sustitución de sus representantes legales.
CAPITULO VII De las infracciones comunes a las diferentes formas de sociedades mercantiles Artículos L247-1 a
L247-10
Sección I De las infracciones relativas a las filiales, a las participaciones y a las
sociedades controladas Artículos L247-1 a L247-3
Artículo L247-1 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
I. - Serán castigados con dos años de prisión y 9.000 euros de multa los presidentes, los administradores, los directores generales o los gerentes de toda sociedad que:
1º No hicieran mención en el informe anual, presentado a los socios sobre las operaciones del ejercicio, de una adquisición de participación en una sociedad con sede en el territorio de la República francesa que represente más de la veinteava, de la décima, de la quinta, de la tercera parte, de la mitad o de los dos tercios de capital o de los derechos de voto en las juntas generales de esta sociedad o de la toma de control de dicha sociedad;
2º No dieran cuenta, en el mismo informe, de la actividad y de los resultados del conjunto de la sociedad, de las filiales de la sociedad y de las sociedades que controle por sector de actividad;
3º No adjuntaran al balance de la sociedad el cuadro previsto en el artículo L.233-15, que aporta las informaciones que muestran la situación de dichas filiales y participaciones.
II. - Serán sancionados con multa de 9.000 euros los miembros del directorio, del consejo de administración o los gerentes de las sociedades citadas en el artículo L.233-16, sin perjuicio de las excepciones en su aplicación previstas en el artículo L.233-17, que no elaboraran y enviaran las cuentas consolidadas a los accionistas o socios en los plazos previstos por la Ley. El Tribunal podrá además ordenar la inserción de la sentencia, por cuenta del sancionado, en uno o varios periódicos.
III. - Será castigado con las penas mencionadas en el punto I el auditor de cuentas que no incluyera en su informe
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CÓDIGO DE COMERCIO las menciones citadas en el apartado 1º del punto I del presente artículo.
Artículo L.247-2 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-7 de 3 de enero de 2003 art. 50 II Diario Oficial de 4 de enero de 2003) (Ley nº 2003-706 de 1 de agosto de 2003 art. 46 V Diario Oficial de 2 de agosto de 2003)
I.- Serán castigados con multa de 18.000 euros los presidentes, los administradores, los miembros del directorio, los gerentes o los directores de las personas jurídicas, así como toda persona física, que no cumplieran con las obligaciones relativas a las informaciones a las que estas personas están obligadas en aplicación del artículo L.233-7, en razón de las participaciones que posean.
II.- Serán castigados con la misma pena los presidentes, los administradores, los miembros del directorio, los gerentes o los directores generales de una sociedad, por no efectuar las notificaciones a las que esta sociedad esté obligada en aplicación del artículo L233-12, en razón de las participaciones que posea en la sociedad por acciones que la controla.
III.- Serán castigados con la misma pena los presidentes, los administradores, los miembros del directorio, los gerentes o los directores generales de una sociedad, por el hecho de omitir, en el informe presentado a los accionistas sobre las operaciones del ejercicio, la mención de la identidad de las personas que poseen participaciones significativas en esta sociedad, de las modificaciones producidas en el curso del ejercicio, del nombre de las sociedades controladas y de la parte del capital de la sociedad que estas sociedades posean, en las condiciones previstas por el artículo L.233-13.
IV. - Será castigado con la misma pena al auditor de cuentas por el hecho de omitir, en su informe, las menciones previstas en el apartado III.
V.- Para las sociedades que realicen un llamamiento público al ahorro, se ejercitarán las acciones judiciales tras haber solicitado el dictamen de la Autoridad de Mercados Financieros.
Artículo L247-3 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Serán sancionados con multa de 18.000 euros los presidentes, los administradores, los miembros del directorio, los directores generales o los gerentes de sociedades que hayan infringido las disposiciones de los artículos L.233-29 a L.233-31.
Para las sociedades que hagan llamamiento público al ahorro, las acciones judiciales por infracción de las disposiciones del artículo L.233-31 se ejercitarán tras haber solicitado el dictamen de la Comisión de operaciones bursátiles.
Nota: Ley nº 2003-706 de 1 de agosto de 2003 Artículo 46 V 1º y 2º: 1º Las referencias a la Comisión de Operaciones Bursátiles, al Consejo de Mercados Financieros y al Consejo de
disciplina de la gestión financiera serán sustituidas por la referencia a la Autoridad de Mercados Financieros; 2° Las referencias a los reglamentos de la Comisión de Operaciones Bursátiles y al reglamento general del
Consejo de Mercados Financieros de disciplina de la gestión financiera serán sustituidas por la referencia al reglamento general de la Autoridad de Mercados Financieros.
Sección II De las infracciones relativas a la publicidad Artículo L247-4
Artículo L247-4 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será sancionado con multa de 9.000 euros el que no cumpliese con las obligaciones que se derivan del artículo L.225-109 en el plazo y de acuerdo a las condiciones determinadas por decreto adoptado en Conseil d'Etat.
Sección III De las infracciones relativas a la liquidación Artículos L247-5 a
L247-8
Artículo L247-5 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con dos años de prisión y 9.000 euros de multa el que infringiera la prohibición de ejercer las funciones de liquidador.
Toda persona castigada por la aplicación del párrafo anterior no podrá ser empleada, sea en el concepto que fuere, por la sociedad en la que haya ejercido las funciones prohibidas. En caso de infracción a esta prohibición, la persona condenada y su empresario, si este último hubiese tenido conocimiento de ello, serán castigados con las penas previstas en dicho párrafo.
Artículo L247-6 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
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CÓDIGO DE COMERCIO Será castigado con seis meses de prisión y 9.000 euros de multa el liquidador de una sociedad que: 1º No publicase en el plazo de un mes a partir de su nombramiento, el acta que lo hubiera nombrado liquidador en
un periódico de anuncios legales en el departamento del domicilio social, ni presentara en el Registro de Comercio y de Sociedades las resoluciones que hubieran dictado la disolución;
2º No convocara a los socios al final de la liquidación, para decidir sobre la cuenta definitiva, sobre el finiquito de su gestión, el fin de su mandato ni hiciera constar el cierre de la liquidación y no depositara, en el caso previsto en el artículo L.237-10, sus cuentas en la secretaría del Tribunal ni solicitara judicialmente la aprobación de las mismas.
Artículo L247-7 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 122 2° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 134 I Diario Oficial de 2 de agosto de 2003)
Será castigado con las penas previstas en el artículo L.247-6, en el caso de que la liquidación de una sociedad se produjera de acuerdo a las disposiciones de los artículos L.237-14 a L.237-31 el liquidador que:
1º No presentara dentro de los seis meses siguientes a su nombramiento, un informe sobre la situación activa y pasiva, sobre la continuación de las operaciones de liquidación, ni solicitara las autorizaciones necesarias para concluirlas;
2º No realizara las cuentas anuales a la vista del inventario y un informe escrito en el que diera cuenta de las operaciones de liquidación a lo largo del ejercicio transcurrido, dentro de los tres meses siguientes al cierre de cada ejercicio;
3º (suprimido); 4° y 5°: Párrafos derogados. 6º No depositara en una cuenta abierta en un establecimiento de crédito a nombre de la sociedad en liquidación, en
el plazo de quince días contados a partir de la decisión del reparto, las cantidades correspondientes a los repartos entre los socios y los acreedores, o no depositara en la Caja de Depósitos y Consignaciones, en el plazo de un año contado a partir del cierre de la liquidación, las cantidades adjudicadas a los acreedores o a los socios que no hubieran sido reclamadas por ellos.
Artículo L247-8 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con cinco años de prisión y 9.000 euros de multa el liquidador de mala fe que: 1º Hiciera un uso de los bienes o del crédito de la sociedad en liquidación, a sabiendas del perjuicio que causa a
los intereses de ésta, con fines personales o para favorecer a otra sociedad o empresa en la que él estuviera directa o indirectamente interesado;
2º Cediera todo o parte del activo de la sociedad en liquidación infringiendo las disposiciones de los artículos L.237-6 y L.237-7.
Sección IV De las infracciones relativas a las sociedades anónimas dotadas de directorio y
de consejo de supervisión Artículo L247-9
Artículo L247-9 Las sanciones previstas por los artículos L.247-1 a L.247-4 para los presidentes, los directores generales y los
administradores de sociedades anónimas, serán aplicables, según sus respectivas atribuciones, a los miembros del directorio y a los miembros del consejo de supervisión de las sociedades anónimas reguladas por las disposiciones de los artículos L.225-57 a L.225-93.
Sección V De las infracciones relativas a las sociedades de capital variables Artículo L247-10
Artículo L247-10 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será sancionado con multa de 3.750 euros el presidente, el gerente o, de modo general, el dirigente de una sociedad que hiciera uso de la facultad prevista en el artículo L.231-1 y que no mencionara esta circunstancia añadiendo las palabras "de capital variable" en todas las actas y documentos emitidos por la sociedad y destinados a terceros.
CAPITULO VIII Disposiciones que afectan a los directores generales delegados de las sociedades
anónimas Artículo L248-1
Artículo L.248-1 (Ley nº 2001-420 de 15 de mayo de 2001 art. 107 5° Diario Oficial de 16 de mayo de 2001) (Ley nº 2005-842 de 26 de julio de 2005 art. 11 II Diario Oficial de 27 de julio de 2005)
Las disposiciones del presente título referidas a los directores generales de las sociedades anónimas o de las sociedades europeas se aplicarán, según sus respectivas atribuciones, a los directores generales delegados.
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CÓDIGO DE COMERCIO TITULO V DE LAS AGRUPACIONES DE INTERÉS ECONÓMICO Artículos L251-1 a
L252-13
CAPITULO I De la agrupación de interés económico del derecho francés Artículos L251-1 a
L251-23
Artículo L251-1 Dos o varias personas físicas o jurídicas podrán constituir entre ellas una agrupación de interés económico con una
duración determinada. La finalidad de la agrupación será facilitar o desarrollar la actividad económica de sus miembros y mejorar o
incrementar los resultados de esta actividad. No será la consecución de beneficios en sí misma. Su actividad deberá estar ligada a la actividad económica de sus miembros y sólo podrá tener un carácter auxiliar
con relación a ésta.
Artículo L251-2 Las personas que ejerzan una profesión liberal sometida a un estatuto legislativo o reglamentario o cuyo título esté
protegido podrán constituir una agrupación de interés económico o participar en ella.
Artículo L251-3 La agrupación de interés económico podrá constituirse sin capital. Los derechos de sus miembros no podrán ser representados por títulos negociables. Cualquier cláusula en
contrario se tendrá por no puesta.
Artículo L251-4 La agrupación de interés económico gozará de personalidad jurídica y de plena capacidad a partir de la fecha de
su inscripción en el Registro de Comercio y de Sociedades, sin que esta inscripción conlleve la presunción del carácter mercantil de la agrupación. La agrupación de interés económico cuyo objeto sea mercantil podrá hacer de manera habitual y como actividad principal todo tipo de actos de comercio por cuenta propia. Podrá ser titular de un contrato de arrendamiento comercial.
Las personas que hayan actuado en nombre de una agrupación de interés económico en fase de formación, antes de que haya adquirido personalidad jurídica, serán responsables, solidaria e indefinidamente, de los actos así realizados, a menos que el grupo, tras haber sido válidamente constituido e inscrito, retome los compromisos suscritos. Se considerará entonces que estos compromisos han sido suscritos desde el inicio por la agrupación.
Artículo L251-5 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
La nulidad de la agrupación de interés económico así como de los actos o acuerdos de ésta sólo podrá producirse por infracción a las disposiciones imperativas del presente capítulo, o de una de las causas generales de nulidad de los contratos.
La acción de nulidad se extinguirá cuando la causa de nulidad haya dejado de existir al día en que el Tribunal resuelva sobre el fondo de la cuestión en primera instancia, salvo que esta nulidad esté fundada en la ilicitud del objeto de la agrupación.
Los artículos 1844-12 a 1844-17 del Código Civil serán aplicables a las agrupaciones de interés económico.
Artículo L251-6 Los miembros de la agrupación económica responderán de las deudas de ésta con su propio patrimonio. Sin
embargo, un nuevo miembro podrá, si el contrato lo permitiese, ser exonerado de las deudas contraídas con anterioridad a su entrada en la agrupación. Deberá publicarse la resolución de exoneración. Serán solidarios, salvo pacto en contrario, con el tercero cocontratante.
Los acreedores de la agrupación no podrán demandar judicialmente el pago de las deudas de un miembro si no lo hubiesen requerido antes infructuosamente a la agrupación por medio de un documento extrajudicial.
Artículo L251-7 La agrupación de interés económico podrá emitir obligaciones, en las condiciones generales de emisión de esos
títulos por las sociedades, si ella misma estuviera exclusivamente compuesta de sociedades que cumplen las condiciones previstas por el presente libro en cuanto a la emisión de obligaciones.
La agrupación de interés económico podrá igualmente emitir obligaciones en las condiciones generales de emisión de estos títulos previstas por la Ley Nº 85-698 de 11 de julio de 1985, que autoriza la emisión de valores mobiliarios por algunas asociaciones, siempre que la propia agrupación esté compuesta exclusivamente de asociaciones que satisfagan las condiciones previstas por esta ley para la emisión de obligaciones.
Artículo L251-8 I. - El contrato de agrupación de interés económico fijará la organización de la agrupación no obstante las
disposiciones del presente capítulo. Se plasmará por escrito y se publicará según las condiciones determinadas por decreto adoptado en Conseil d'Etat.
II. - El contrato contendrá, en todo caso, las siguientes indicaciones:
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CÓDIGO DE COMERCIO 1º La denominación de la agrupación; 2º Los apellidos, razón social o denominación social, la forma jurídica, la dirección del domicilio o de la sede social
y, si procede, el número de identificación de cada uno de los miembros de la agrupación, así como, según el caso, la ciudad en la que se sitúa la secretaría en la que está inscrita o la ciudad en la que se encuentra el Registro Central de Artesanos en el que está inscrito;
3º La duración prevista para la agrupación; 4º El objeto de la agrupación; 5º La dirección de la sede de la agrupación. III. - Cualquier modificación del contrato será realizada y publicada en las mismas condiciones que las fijadas para
el propio contrato. No podrán oponerse frente a terceros hasta que no se hayan publicado.
Artículo L251-9 La agrupación, a lo largo de su existencia, podrá aceptar nuevos miembros en las condiciones determinadas por el
contrato de constitución. Cualquier miembro de la agrupación podrá retirarse en las condiciones previstas en el contrato, siempre y cuando
haya cumplido con sus obligaciones.
Artículo L251-10 La junta de miembros de la agrupación estará habilitada para tomar cualquier decisión, incluida la disolución
anticipada o la prórroga, en las condiciones determinadas en el contrato. Éste podrá prever que todos los acuerdos o algunos de ellos sean tomados en las condiciones de quórum y de mayoría que él mismo determine. En caso de que no se especifique nada en el contrato, las decisiones se tomarán por unanimidad.
El contrato también podrá adjudicar a cada miembro un número de votos diferente al adjudicado a otros. A falta de mención expresa, cada miembro dispondrá de un voto.
La junta se reunirá obligatoriamente a petición de una cuarta parte al menos de los miembros de la agrupación.
Artículo L251-11 La agrupación será administrada por una o varias personas. Se podrá nombrar administrador de la agrupación a
una persona jurídica salvo que ella designe un representante permanente, que incurrirá en las mismas responsabilidades civil y penal que si fuese administrador en su propio nombre. El o los administradores del grupo, y el representante permanente de la persona jurídica nombrada administrador serán responsables, individual o solidariamente según el caso, con respecto a la agrupación o a terceros, de las infracciones a las disposiciones legislativas y reglamentarias aplicables a las agrupaciones, de la contravención de los estatutos de la agrupación, así como de sus propias faltas cometidas en el ejercicio de la gestión. Si varios administradores hubiesen cooperado en los mismos hechos, el Tribunal determinará la parte contributiva de cada uno en la reparación del daño. Salvo esta condición, el contrato de agrupación, o, en su defecto, la junta de miembros organizará libremente la administración de la agrupación y nombrará a los administradores determinando sus atribuciones, sus poderes y las condiciones de revocación.
En sus relaciones con terceros, un administrador comprometerá a la agrupación por todo acto que realice dentro del objeto de ésta. No será oponible frente a terceros toda limitación de poderes otorgados
Artículo L251-12 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 116 Diario Oficial de 2 de agosto de 2003)
El control de la gestión, que deberá ser confiado a personas físicas, y el control de las cuentas serán ejercidos en las condiciones previstas por el contrato de constitución de la agrupación.
Sin embargo, cuando una agrupación emita obligaciones en las condiciones previstas en el artículo L.251-7, el control de la gestión deberá ser ejercido por una o varias personas físicas designadas por la junta. La duración de sus funciones y sus competencias se fijarán por contrato.
El control de las cuentas en las agrupaciones citadas en el párrafo anterior y en las agrupaciones que cuenten con cien empleados o más al cierre de un ejercicio deberá ser ejercido por uno o varios auditores de cuentas elegidos de entre la lista citada en el artículo L.822-1 y nombrados por la junta para un período de seis ejercicios. Las disposiciones del presente Código relativas a las incompatibilidades, las competencias, las funciones, las obligaciones, la responsabilidad, la recusación, la revocación, la remuneración del auditor de cuentas de las sociedades anónimas así como las sanciones previstas por el artículo L.242-27 serán aplicables a los auditores de las agrupaciones de interés económico, sin perjuicio del cumplimiento de sus normas propias.
En los casos previstos en los dos párrafos anteriores, las disposiciones de los artículos L.242-25, L.242-26 y L.242-28, L.245-8 a L.245-17 serán aplicables a los dirigentes de la agrupación, a las personas físicas dirigentes de las sociedades miembros o representantes permanentes de las personas jurídicas dirigentes de estas sociedades.
Artículo L251-13 En las agrupaciones que respondan a uno de los criterios definidos en el artículo L.232-2, los administradores
estarán obligados a elaborar una valoración de la situación del activo realizable y disponible, sin contar los valores de explotación, y del pasivo exigible, una cuenta de pérdidas y ganancias, un cuadro de financiación al mismo tiempo que el balance anual y un plan de financiación previsible.
Un decreto adoptado en Conseil d'Etat determinará la periodicidad, los plazos y las condiciones de la elaboración de estos documentos.
Artículo L251-14
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CÓDIGO DE COMERCIO Los documentos citados en el artículo L.251-13 serán analizados en los informes escritos sobre la evolución de la
agrupación realizados por los administradores. Los documentos e informes serán presentados al auditor de cuentas y al comité de empresa.
En caso de inobservancia de las disposiciones del artículo L.251-13 y del párrafo anterior, o si las informaciones dadas en los informes citados en el párrafo anterior suscitasen observaciones por su parte, el auditor de cuentas deberá señalarlo en un informe a los administradores o en el informe anual. Podrá solicitar que su informe sea dirigido a los miembros de la agrupación o que se dé a conocer en la junta de éstos. Este informe será comunicado al comité de empresa.
Artículo L251-15 Cuando el auditor de cuentas detecte, en el ejercicio de su misión, hechos que puedan comprometer la continuidad
de la explotación de la agrupación, informará de ello a los administradores, en las condiciones determinadas por un decreto adoptado en Conseil d'Etat. Éstos estarán obligados a responderle en el plazo de quince días. La respuesta será comunicada al comité de empresa. El auditor de cuentas informará de todo ello al presidente del Tribunal.
En caso de inobservancia de estas disposiciones, o si se comprobara que a pesar de los acuerdos tomados la continuidad de la explotación sigue en peligro, el auditor de cuentas realizará un informe especial e solicitará por escrito a los administradores el incluir la deliberación sobre los hechos detectados en la siguiente junta general. Este informe será presentado al comité de empresa.
Si tras la reunión de la junta general, el auditor de cuentas constatara que las decisiones tomadas no permitirán asegurar la continuidad de la explotación, informará de sus gestiones al presidente del Tribunal y le presentará los resultados de las mismas.
Artículo L251-16 El comité de empresa o, en su defecto, los delegados del personal ejercerán en las agrupaciones de interés
económico, las atribuciones previstas en los artículos L.422-4 y L.432-5 del Código de Trabajo. Los administradores comunicarán al auditor de cuentas las peticiones de explicaciones formuladas por el comité de
empresa o los delegados del personal, los informes que les sean dirigidos y las respuestas dadas en aplicación de los artículos L.422-4 y L.432-5 del Código de Trabajo.
Artículo L251-17 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Las actas y documentos emitidos por la agrupación y destinados a terceros, especialmente las cartas, facturas, anuncios y publicaciones diversas, deberán indicar legiblemente la denominación de la agrupación seguida de las palabras: "Agrupación de interés económico" o de las siglas correspondientes: "GIE".
Toda infracción a las disposiciones del párrafo anterior se sancionará con multa de 3.750 euros.
Artículo L251-18 Cualquier sociedad o asociación cuyo objeto corresponda a la definición de la agrupación de interés económico
podrá ser transformada en tal agrupación sin dar lugar a la disolución ni a la creación de una nueva persona jurídica. Una agrupación de interés económico podrá ser transformada en sociedad colectiva sin dar lugar a la disolución ni
a la creación de una nueva persona jurídica.
Artículo L251-19 La agrupación de interés económico será disuelta: 1º Al llegar a su término; 2º Por realización o extinción de su objeto; 3º Por decisión de sus miembros en las condiciones previstas en el artículo L.251-10 4º Por decisión judicial, basada en motivos justificados; 5º Por fallecimiento de una persona física o por disolución de una persona jurídica, miembro de la agrupación,
salvo estipulación en contrario del contrato.
Artículo L251-20 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Si uno de los miembros se viera afectado por una incapacidad, una situación de quiebra personal o una prohibición de dirigir, gestionar, administrar o controlar una empresa comercial, cualquiera que fuere su forma, o una persona jurídica de derecho privado no comerciante, la agrupación será disuelta, a menos que el contrato previera su continuidad o que los demás miembros la decidieran por unanimidad.
Artículo L251-21 La disolución de la agrupación de interés económico conllevará su liquidación. La personalidad de la agrupación
subsistirá para las necesidades de la liquidación.
Artículo L251-22 La liquidación se llevará a cabo de acuerdo con las disposiciones del contrato. En su defecto, la junta de miembros
de la agrupación nombrará a un liquidador o, si la junta no hubiese podido proceder a esta designación, se hará por resolución judicial.
Tras el pago de las deudas, el excedente del activo será repartido entre los miembros en las condiciones previstas por el contrato. En su defecto, el reparto se hará a partes iguales.
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CÓDIGO DE COMERCIO Artículo L251-23 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
El apelativo de "agrupación de interés económico" y las siglas "GIE" sólo serán utilizados por las agrupaciones sujetas a las disposiciones del presente capítulo. El empleo ilícito de este apelativo, de estas siglas o de cualquier expresión que pueda prestarse a confusión con ellos, se castigará con pena de un año de prisión y una multa de 6.000 euros.
El Tribunal podrá ordenar, además, la publicación de la resolución, por cuenta del condenado, en tres periódicos como máximo y su publicación mediante edictos, en las condiciones previstas en el artículo 131-35 del Código Penal.
CAPITULO II De la agrupación europea de interés económico Artículos L252-1 a
L252-13
Artículo L252-1 Las agrupaciones europeas de interés económico inscritas en Francia en el Registro de Comercio y de Sociedades
tendrán personalidad jurídica desde su inscripción.
Artículo L252-2 Las agrupaciones europeas de interés económico tendrán un carácter civil o mercantil según su objeto. La
inscripción no conllevará la presunción de que la agrupación sea mercantil.
Artículo L252-3 Los derechos de los miembros de la agrupación no podrán ser representados por títulos negociables.
Artículo L252-4 Las decisiones colegiadas de la agrupación europea de interés económico serán tomadas por la junta de los
miembros de la agrupación. Sin embargo, los estatutos podrán estipular que estas decisiones, o algunas de ellas, puedan ser tomadas en forma de consulta escrita.
Artículo L252-5 El o los gerentes de una agrupación europea de interés económico serán responsables, individual o solidariamente
según el caso, con respecto a la agrupación o frente a terceros, de las infracciones a las disposiciones legislativas o reglamentarias aplicables a la agrupación, de la inobservancia de los estatutos, o bien de sus faltas en la gestión. Si varios gerentes hubieran cooperado en los mismos hechos, el Tribunal determinará la parte que corresponda a cada uno en la reparación del daño.
Artículo L252-6 Una persona jurídica podrá ser designada gerente de una agrupación europea de interés económico. Desde el
momento de su nombramiento, estará obligada a designar un representante permanente que incurrirá en las mismas responsabilidades civil y penal que si fuese gerente en su propio nombre, sin perjuicio de la responsabilidad solidaria de la persona jurídica a la que representa.
Artículo L252-7 Las disposiciones del capítulo anterior aplicables a las agrupaciones de interés económico del derecho francés
relativas a las obligaciones contables, al control de las cuentas y a la liquidación, serán aplicables a las agrupaciones europeas de interés económico.
Artículo L252-8 Cualquier sociedad o asociación, cualquier agrupación de interés económico podrá ser transformada en una
agrupación europea de interés económico sin dar lugar a la disolución ni a la creación de una nueva persona jurídica. Una agrupación europea de interés económico podrá ser transformada en una agrupación de interés económico de
derecho francés o una sociedad colectiva, sin dar lugar a la disolución ni a la creación de una nueva persona jurídica.
Artículo L252-9 La nulidad de la agrupación europea de interés económico así como la de los actos o acuerdos de ésta sólo podrá
provenir de la infracción a las disposiciones imperativas contenidas en el reglamento nº 2137-85 de 25 de julio de 1985 del Consejo de las Comunidades Europeas o a las disposiciones del presente capítulo o de una de las causas generales de nulidad de los contratos.
La acción de nulidad se extinguirá cuando la causa de nulidad haya dejado de existir al día en que el Tribunal resuelva sobre el fondo de la cuestión en primera instancia, salvo que esta nulidad esté fundada en la ilicitud del objeto de la agrupación.
Se aplicarán los artículos 1844-12 al 1844-17 del Código Civil.
Artículo L252-10 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Las agrupaciones europeas de interés económico no podrán, bajo pena de nulidad de los contratos firmados o de los títulos emitidos, hacer llamamiento público al ahorro.
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CÓDIGO DE COMERCIO Será castigado con dos años de prisión y 300.000 euros de multa el gerente de una agrupación europea de interés
económico o el representante permanente de una persona jurídica gerente de una agrupación europea de interés económico que hiciera llamamiento público al ahorro.
Artículo L252-11 La utilización en las relaciones con terceros de cualquier acta, carta, nota y documento similar que no lleve las
menciones prescritas por el artículo 25 del reglamento nº 2137-85 de 25 de julio de 1985 del Consejo de las Comunidades Europeas será sancionada con las penas previstas en el artículo L.251-17.
Artículo L252-12 El apelativo "agrupación europea de interés económico" y las siglas "GEIE" sólo podrán ser utilizados por las
agrupaciones sujetas a las disposiciones del reglamento nº 2137-85 de 25 de julio de 1985 del Consejo de las Comunidades Europeas. El empleo ilícito de este apelativo o de estas siglas o de cualquier expresión que pueda prestarse a confusión con ellas, será castigado con las penas previstas en el artículo L.251-23.
Artículo L252-13 Los artículos L.242-26 y L.242-27 serán aplicables a los auditores de cuentas de las agrupaciones europeas de
interés económico. Los artículos L.242-25 y L.242-28 serán aplicables a los dirigentes de la agrupación y a las personas físicas que dirijan sociedades miembros de ella o que sean representantes permanentes de las personas jurídicas que dirijan estas sociedades.
LIBRO III DE ALGUNAS FORMAS DE VENTAS Y DE LAS CLÁUSULAS DE EXCLUSIVIDAD
Artículos L310-1 a L330-3
TITULO I DE LAS LIQUIDACIONES, DE LAS VENTAS AMBULANTES, DE LAS REBAJAS Y DE
LAS VENTAS EN FÁBRICA Artículos L310-1 a L310-7
Artículo L310-1 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 26, Artículo 29 Diario Oficial de 27 de marzo de 2004)
Serán consideradas ventas en liquidación las ventas acompañadas o precedidas de publicidad y anunciadas como orientadas a la venta acelerada de la totalidad o de una parte de las mercancías de un establecimiento comercial mediante una reducción del precio, como consecuencia de una decisión, sea cual fuera la causa, de cese, suspensión estacional o cambio de actividad, o de modificación sustancial de las condiciones de explotación.
Las liquidaciones estarán sometidas a previa declaración ante la autoridad administrativa competente del lugar de la liquidación. Dicha declaración incluirá la causa y duración de liquidación, no pudiendo esta última exceder de dos meses. La misma irá acompañada de un inventario de las mercancías a liquidar. Cuando el acontecimiento que hubiera motivado la liquidación no se produzca dentro del plazo máximo de seis meses siguiente a la declaración, el declarante deberá informar de ello a la autoridad administrativa competente.
Durante el período de liquidación, estará prohibido poner a la venta mercancías diferentes a las que aparecen en el inventario que sirviera de base a la presentación de la declaración previa.
Artículo L310-3 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 29 Diario Oficial de 27 de marzo de 2004)
I.- Serán consideradas ventas en rebaja las ventas acompañadas o precedidas de publicidad y anunciadas como orientadas a la venta acelerada de mercancías en stock mediante una reducción de precio.
Estas ventas sólo podrán ser realizadas a lo largo de dos períodos por cada año civil con una duración máxima de seis semanas cuyas fechas serán determinadas en cada departamento por la autoridad administrativa competente, en las condiciones definidas por el decreto previsto en el artículo L.310-7 y sólo podrán incluir mercancías ofrecidas a la venta y pagadas al menos un mes antes de la fecha prevista para el inicio del período de rebajas.
II. - En cualquier publicidad, rótulo, denominación social o nombre comercial, el empleo de la palabra: Rebajas o de sus derivados estará prohibido para designar cualquier actividad, denominación social o nombre comercial, rótulo o calidad, que no se corresponda con una operación de rebajas tal y como se define en el punto I anterior.
Artículo L310-4 La denominación de tienda o almacén de fábrica sólo podrá ser utilizada por los productores que vendan
directamente al público la parte de su producción no comercializada en el circuito de distribución o que sean objeto de retorno. Estas ventas directas se refieren exclusivamente a las producciones de la temporada anterior de comercialización, justificando así una venta a precio reducido.
Artículo L310-5 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 28 Diario Oficial de 27 de marzo de 2004)
Será sancionado con multa de 15.000 euros el que: 1º Procediera a una liquidación sin la declaración previa mencionada en el artículo L.310-1 o infringiendo las
condiciones contempladas en dicho artículo;
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CÓDIGO DE COMERCIO 2º Procediera a una venta ambulante sin la autorización prevista por el artículo L.310-2 o infringiendo dicha
autorización; 3º Realizara rebajas fuera de los períodos previstos en el punto I del artículo L.310-3 o con mercancías poseídas
desde menos de un mes antes de la fecha considerada como inicio de rebajas; 4º Utilizara la palabra: rebajas o sus derivados en los casos en los que esta utilización no se refiera a una
operación de rebajas definida en el punto I del artículo L.310-3; 5º Utilizara la denominación tienda o almacén de fábrica por inobservancia de las disposiciones del artículo
L.310-4. 6º Organizara un evento comercial sin la declaración prevista en el artículo L. 740-2 o no respetara las condiciones
de realización del evento declarado. Las personas físicas se expondrán también, como pena accesoria, a la publicación de la resolución judicial
mediante edictos o difusión de la misma en las condiciones previstas en el apartado 9º del artículo 131-35 del Código Penal.
Artículo L310-6 Las personas jurídicas podrán ser declaradas penalmente responsables, en las condiciones previstas en el artículo
121-2 del Código Penal, de las infracciones definidas en el artículo L.310-5. Las penas a las que se expondrá son: 1º La multa en las condiciones previstas por el artículo 131-38 del Código Penal; 2º La publicación mediante edictos o la difusión de la resolución judicial en las condiciones previstas en el apartado
9º del artículo 131-39 del Código Penal.
Artículo L310-7 Las condiciones de aplicación de las disposiciones del presente título serán determinadas por decreto adoptado en
Conseil d'Etat, y en particular los sectores en los que los anuncios de reducción de precios para los consumidores, sea cual fuera su soporte, no puedan expresarse en porcentaje o por la mención de los precios anteriores, y la duración o las condiciones de esta prohibición.
TITULO II DE LAS VENTAS EN SUBASTA PÚBLICA Artículos L321-4 a
L320-2
Artículo L320-1 Nadie podrá hacer de la subasta pública un procedimiento habitual en el ejercicio de su actividad comercial.
Artículo L320-2 Serán excepciones a la prohibición prevista en el artículo L.320-1 las ventas prescritas por la Ley o realizadas por
autoridades judiciales, así como las ventas tras fallecimiento, liquidación judicial o cese de actividad de un comercio o en cualquier otro caso de necesidad cuya apreciación será sometida al Tribunal de commerce.
Se exceptuarán igualmente las ventas por pregón público de comestibles y objetos de poco valor, conocidos en el comercio francés con el nombre "menue mercerie".
CAPITULO I De las ventas voluntarias de bienes muebles en subasta pública Artículos L321-4 a
L321-38
Sección I Disposiciones generales Artículos L321-4 a
L321-3
Artículo L321-1 Las ventas voluntarias de bienes muebles en subasta pública sólo podrán realizarse con artículos de ocasión o con
bienes nuevos que procedan directamente de la fabricación del vendedor si éste no es ni comerciante ni artesano. Estos bienes serán vendidos al por menor o por lotes.
Serán considerados como muebles por el presente capítulo los bienes muebles susceptibles de desplazamiento. Serán considerados como artículos de ocasión los bienes que, en cualquier estado de su producción o de su
distribución, hayan entrado en posesión de una persona para su uso personal, a consecuencia de cualquier acto a título oneroso o gratuito.
Artículo L321-2 Las ventas voluntarias de bienes muebles en subasta pública serán, salvo los casos previstos en el artículo
L.321-36, organizadas y realizadas por sociedades mercantiles reguladas por el libro II, y cuya actividad estará regida por las disposiciones del presente capítulo.
Estas ventas podrán igualmente ser organizadas y realizadas con carácter accesorio por los notarios y los agentes judiciales. Esta actividad será ejercida en el marco de su profesión y siguiendo las normas que les sean aplicables. Sólo podrán recibir el mandato por el propietario de los bienes.
Artículo L321-3
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CÓDIGO DE COMERCIO El hecho de ofrecer, actuando como mandatario del propietario, un bien en subasta pública a distancia por vía
electrónica para adjudicarlo al mejor postor de los que pujen constituirá una venta en subasta pública a efectos del presente capítulo.
Las operaciones de corretaje en subasta realizadas a distancia por vía electrónica, que se caracteriza por la ausencia de adjudicación y de intervención de un tercero en la realización de la venta de un bien entre las partes, no constituyen una venta en subasta pública.
Se someterán igualmente a las disposiciones del presente capítulo, con exclusión de los artículos L.321-7 y L.321-16, las operaciones de corretaje en subasta correspondientes a bienes culturales realizadas a distancia por vía electrónica.
Subsección 1 Las sociedades de ventas voluntarias de bienes muebles en subasta
pública Artículos L321-4 a L321-17
Artículo L321-4 El objeto de las sociedades de ventas voluntarias de bienes muebles en subasta pública se limitará a la valoración
de los bienes muebles, a la organización y a la realización de las ventas voluntarias de bienes muebles en subasta pública en las condiciones determinadas por el presente capítulo.
Las sociedades de ventas voluntarias de bienes muebles en subasta pública actuarán como mandatarios del propietario del bien. No estarán habilitados para comprar o vender directa o indirectamente por su cuenta bienes muebles propuestos para la venta en subasta pública. Esta prohibición se aplicará también a los dirigentes, socios y empleados de la sociedad. Sin embargo, éstos podrán vender de forma excepcional, con la mediación de la sociedad, bienes que les pertenezcan a condición de que se haga mención de ello en la publicidad.
Artículo L321-5 Las sociedades de ventas voluntarias de bienes muebles en subasta pública sólo podrán ejercer su actividad tras
haber obtenido la autorización del Consejo de ventas voluntarias de bienes muebles en subasta pública establecidas en el artículo L. 321-18.
Deberán presentar garantías suficientes en lo referente a su organización, a sus medios técnicos y financieros, a la honorabilidad y la experiencia de sus dirigentes así como las disposiciones propias para asegurar a sus clientes la seguridad de las operaciones.
Artículo L321-6 Las sociedades de ventas voluntarias de bienes muebles en subasta pública deberán, sea cual fuere su forma,
nombrar a un auditor de cuentas y a un auditor de cuentas suplente. Éstas deberán presentar justificante de: 1º La existencia en un establecimiento de crédito de una cuenta destinada exclusivamente a recibir los fondos
poseídos por cuenta ajena; 2º Un seguro que cubra su responsabilidad profesional; 3º Un seguro o un aval que garantice la representación de los fondos mencionados en el apartado 1º.
Artículo L321-7 Las sociedades de ventas voluntarias de bienes muebles en subasta pública darán al Consejo de ventas
voluntarias de bienes muebles en subasta pública todo tipo de precisiones útiles sobre los locales en donde se efectuarán de manera habitual las exposiciones de los bienes muebles propuestos para la venta así como sobre las operaciones de ventas en subasta pública. Cuando la exposición o la venta se realice en otro local, o a distancia por vía electrónica, la sociedad avisará de ello previamente al Consejo.
Artículo L321-8 Las sociedades de ventas voluntarias de bienes muebles en subasta pública deberán incluir entre sus dirigentes,
sus socios o sus empleados al menos a una persona que tenga la cualificación requerida para dirigir una venta o ser titular de un título, de un diploma o de una habilitación reconocidos como equivalentes en la materia, en las condiciones definidas por decreto en el Conseil d'Etat.
Artículo L321-9 Las personas mencionadas en el artículo L.321-8 serán las únicas habilitadas para dirigir la venta, para designar al
último postor como adjudicatario o para declarar el bien no adjudicado y para levantar acta de esta venta. El acta se realizará un día más tarde, como máximo, del día posterior a la venta. Mencionará los apellidos y la
dirección del nuevo propietario declarados por el adjudicatario, la identidad del vendedor, la designación del objeto así como su precio constatado públicamente.
En el plazo de quince días contados a partir de la venta, el vendedor podrá, por mediación de la sociedad, vender de mutuo acuerdo los bienes declarados no adjudicados al finalizar la subasta. Esta transacción no será precedida de ninguna exposición ni publicidad. No podrá ser hecha a un precio inferior a la última puja realizada antes de retirar el bien de la venta o, en ausencia de pujas, del importe del precio de salida. El último postor será previamente informado si fuera conocido. Será objeto de un acta adjunta al acta de la venta.
Artículo L321-10 Las sociedades de ventas voluntarias de bienes muebles en subasta pública llevarán un registro diario, en
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CÓDIGO DE COMERCIO aplicación de los artículos 321-7 y 321-8 del Código Penal así como un registro en el que inscribirán sus actas.
Artículo L321-11 Cada venta voluntaria de bienes muebles en subasta pública deberá ser precedida de publicidad en la forma
adecuada. El precio de reserva será el precio mínimo acordado con el vendedor, por debajo del cual el bien no podrá ser
vendido. Si el bien hubiera sido valorado, ese precio no podrá ser fijado por un importe superior a la valoración más baja que figure en la publicidad, o anunciada públicamente por la persona que proceda a la venta y consignada en acta.
Artículo L321-12 Una sociedad de ventas voluntarias de bienes muebles en subasta pública podrá garantizar al vendedor un precio
de adjudicación mínimo del bien ofrecido para la venta, que será abonado, en caso de adjudicación del bien. Si el bien ha sido valorado, este precio no podrá ser fijado en un importe superior a la valoración mencionada en el artículo L.321-11.
Esta facultad solamente será ofrecida a la sociedad que haya realizado con una compañía de seguros o un establecimiento de crédito un contrato en cuyos términos se especifique que esta compañía o este establecimiento se comprometerá, en caso de imposibilidad de la sociedad, a reembolsar la diferencia entre el importe garantizado y el precio de adjudicación si el importe garantizado no hubiera sido alcanzado en la venta por subasta.
Artículo L321-13 Una sociedad de ventas voluntarias de bienes muebles en subasta pública podrá conceder al vendedor un
adelanto sobre el precio de adjudicación del bien propuesto para la venta.
Artículo L321-14 Las sociedades de ventas voluntarias de bienes muebles en subasta pública serán responsables con respecto al
vendedor y al comprador del pago del precio y de la entrega de los bienes cuya venta hayan efectuado. Cualquier cláusula que prevea descartar o limitar su responsabilidad se tendrá por no puesta.
El bien adjudicado sólo podrá ser entregado al comprador cuando la sociedad haya percibido el importe del precio o cuando se le hayan dado garantías sobre el pago del precio por parte del comprador.
Si el adjudicatario no efectuase al pago, tras habérsele requerido infructuosamente, el bien será puesto de nuevo a la venta, a petición del vendedor, en segunda subasta por incumplimiento del adjudicatario anterior; si el vendedor no formulase esta petición en el plazo de un mes contado a partir de la fecha de adjudicación, la venta se considerará realizada de pleno derecho, sin perjuicio del pago de la indemnización por los daños y perjuicios ocasionados por el adjudicatario que se halla en mora.
Los fondos poseídos por cuenta del vendedor deberán serle abonados a éste como máximo en los dos meses siguientes a la fecha de la venta.
Artículo L321-15 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con dos años de prisión y 375.000 euros de multa el que procediera o hiciera proceder a una o varias subastas voluntarias de bienes muebles en subasta pública;
1º Si la sociedad que organizase la venta no dispusiese de la autorización prevista en el artículo L.321-5 o bien porque no fuese titular de ésta, o porque su autorización hubiese sido suspendida o revocada de modo temporal o definitivo;
2º Si el ciudadano de un Estado miembro de la Comunidad europea o de un Estado parte en el Acuerdo sobre el Espacio económico europeo que organiza la venta no hubiese procedido a la declaración prevista en el artículo L.321-24;
3º O si la persona que dirige la venta no cumpliese las condiciones previstas en el artículo L.321-8 o estuviese afectada por una prohibición a título temporal o definitivo para dirigir tales ventas.
II. - Las personas físicas culpables de infringir una de las disposiciones previstas en el presente artículo se expondrán igualmente a las siguientes penas complementarias:
1º La prohibición, por un período de cinco años como máximo, de ejercer una función pública o de ejercer la actividad profesional o social en el ejercicio o en ocasión del ejercicio de la cual se haya cometido la infracción;
2º La publicación mediante edictos o la difusión de la resolución judicial en las condiciones previstas por el artículo 131-35 del Código Penal;
3º La confiscación de las cantidades u objetos irregularmente recibidos por el autor de la infracción, exceptuando los objetos susceptibles de restitución.
III. - Las personas jurídicas podrán ser declaradas responsables penalmente, en las condiciones previstas por el artículo 121-2 del Código Penal, de las infracciones determinadas en el presente artículo. Las penas a las que se expondrá son:
1º La multa en las condiciones previstas por el artículo 131-38 del Código Penal; 2º Por un período de cinco años como máximo, las penas mencionadas en los apartados 1º, 2º, 3º, 4º, 8º y 9º del
artículo 131-39 del Código Penal. La prohibición mencionada en el apartado 2º del mismo artículo se refiere a la actividad en el ejercicio o en ocasión del ejercicio de la cual se hubiera cometido la infracción.
Artículo L321-16 Las disposiciones del artículo L.720-5 no serán aplicables a los locales utilizados por las sociedades mencionadas
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CÓDIGO DE COMERCIO en el artículo L.321-2.
Artículo L321-17 (Ley nº 2004-130 de 11 de febrero de 2004 Artículo 57 Diario Oficial de 12 de febrero de 2004)
Las sociedades de ventas voluntarias de bienes muebles en subasta pública y los oficiales públicos o ministeriales competentes para proceder a las ventas judiciales y voluntarias, así como los peritos encargados de la tasación de los bienes, serán los responsables en el transcurso y con ocasión de las ventas de bienes muebles en subasta pública según las normas aplicables a estas ventas.
Quedan prohibidas y se tendrán por no puestas las cláusulas que pretendan descartar o limitar su responsabilidad. Las acciones de resarcimiento por responsabilidad civil emprendidas con ocasión de las tasaciones y de las ventas
voluntarias y judiciales de bienes muebles en subasta pública prescribirán a los diez años, contados a partir de dicha adjudicación o de dicha tasación.
Subsección 2 El Consejo de ventas voluntarias de bienes muebles en subasta pública
Sección II Libre prestación de servicios de la actividad de ventas voluntarias de bienes
muebles en subasta pública por los ciudadanos de los Estados miembros de la Comunidad Europea y de los Estados que forman
Artículos L321-24 a L321-28
Artículo L321-24 Los ciudadanos de un Estado miembro de la Comunidad europea o de un Estado parte en el Acuerdo sobre el
Espacio Económico Europeo que ejerzan de forma permanente la actividad de ventas voluntarias de bienes muebles en subasta pública en uno de estos Estados que no sea Francia podrán realizar, en Francia, esta actividad profesional de modo ocasional. Esta actividad sólo podrá ser practicada después de haber realizado la declaración en el Consejo de ventas de bienes muebles en subasta pública. La declaración será realizada al menos tres meses antes de la fecha de la primera venta realizada en Francia. El Consejo será informado de las siguientes ventas al menos un mes antes de su realización. Podrá oponerse, por motivo justificado, a la celebración de alguna de esas ventas.
Artículo L321-25 Las personas que ejerzan la actividad de ventas voluntarias de bienes muebles en subasta pública de forma
permanente en su país de origen harán uso, en Francia, de su condición, expresada en una de las lenguas del Estado en el que estén establecidas, acompañada de una traducción al francés, así como, si procede, del nombre del organismo profesional del que dependen.
Artículo L321-26 Para poder ejercer la actividad de ventas voluntarias de bienes muebles en subasta pública de modo ocasional, el
ciudadano de un Estado miembro de la Comunidad Europea o de un Estado parte en el Acuerdo sobre el Espacio Económico Europeo deberá presentar la justificación ante el Consejo de ventas voluntarias de bienes muebles en subasta pública de que es titular de uno de los diplomas, títulos o habilitaciones previstas en el artículo L.321-8 o, si se trata de una persona jurídica, la prueba de que incluye entre sus dirigentes, sus socios o sus empleados a una persona que cumple esta condición.
Deberá igualmente aportar la prueba al Consejo de la existencia de un establecimiento en su país de origen y de garantías de moralidad profesional y personal.
Artículo L321-27 Los ciudadanos de un Estado miembro de la Comunidad Europea o de un Estado parte en el Acuerdo sobre el
Espacio Económico Europeo estarán obligados a respetar las normas que regulen la actividad de ventas voluntarias de bienes muebles en subasta pública previstas en el presente capítulo sin perjuicio del cumplimiento de las obligaciones impuestas por el Estado en el que estén establecidos siempre que ambas normas no sean contradictorias.
Artículo L321-28 En caso de incumplimiento de las disposiciones del presente capítulo, los ciudadanos de los Estados miembros de
la Comunidad Europea y de los Estados partes en el Acuerdo sobre el Espacio Económico Europeo estarán sujeto a las disposiciones del artículo L.321-22. Sin embargo, las sanciones de prohibición temporal del ejercicio de la actividad o de revocación de la autorización serán sustituidas por las sanciones de prohibición temporal o definitiva para ejercer en Francia la actividad de ventas voluntarias de bienes muebles en subasta pública.
En caso de sanción, el Consejo de ventas voluntarias de bienes muebles en subasta pública comunicará dicha sanción a la autoridad competente del Estado de origen.
Sección III De los peritos autorizados por el Consejo de ventas voluntarias de bienes
muebles en subasta pública Artículos L321-18 a L321-35-1
Artículo L321-18 Se creará un Consejo de ventas voluntarias de bienes muebles en subasta pública, dotado de personalidad
jurídica.
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CÓDIGO DE COMERCIO El Consejo de ventas voluntarias de bienes muebles en subasta pública, se encargará: 1º De autorizar a las sociedades de ventas voluntarias de bienes muebles en subasta pública así como a los
peritos citados en la sección 3; 2º De registrar las declaraciones de los ciudadanos de los Estados mencionados en la sección 2; 3º De sancionar, en las condiciones previstas en el artículo L.321-22 el incumplimiento de las leyes, los pagos y las
obligaciones profesionales aplicables a las sociedades de ventas voluntarias de bienes muebles en subasta pública, a los peritos autorizados y a los ciudadanos de un Estado miembro de la Comunidad europea o de un Estado parte en el Acuerdo sobre el Espacio Económico Europeo que ejerza de modo ocasional la actividad de ventas voluntarias de bienes muebles en subasta pública en Francia.
La decisión del Consejo de ventas voluntarias de bienes muebles en subasta pública que deniegue o retire la autorización a una sociedad o a un perito o el registro de la declaración de un ciudadano de un Estado mencionado en la sección 2 deberá estar debidamente motivada.
Artículo L321-19 El Consejo de ventas voluntarias de bienes muebles en subasta pública y la Cámara Nacional de peritos tasadores
judiciales asegurarán conjuntamente la organización de la formación profesional para la obtención de la cualificación requerida para poder dirigir tales ventas.
Artículo L321-20 El Consejo de ventas voluntarias de bienes muebles en subasta pública informará a la Cámara Nacional y a las
cámaras de peritos tasadores judiciales, así como a las cámaras departamentales de agentes judiciales y notarios, de los hechos cometidos en la circunscripción de éstas que hayan llegado a su conocimiento y que contravendrían la reglamentación de las ventas voluntarias de bienes muebles en subasta pública.
Las Cámaras Departamentales de agentes judiciales y de notarios, la Cámara Nacional y las Cámaras de peritos tasadores judiciales procederán a dar la misma información con respecto al Consejo de ventas voluntarias de bienes muebles en subasta pública.
Artículo L321-21 El Consejo de ventas voluntarias de bienes muebles en subasta pública se compondrá de once miembros
designados por el Ministro de Justicia por un período de cuatro años: 1º Seis serán personas cualificadas; 2º Cinco serán representantes de los profesionales, de los cuales uno de ellos será un perito. El mandato de los miembros del Consejo sólo será renovable por una sola vez. El presidente será elegido por los miembros en el seno del consejo. Se nombrará el mismo número de suplentes y en las mismas formas. Un magistrado de la fiscalía será designado para ejercer las funciones de Comisario del Gobierno ante el Consejo
de ventas voluntarias de bienes muebles en subasta pública. La financiación del consejo quedará asegurada por el pago de las cotizaciones profesionales abonadas por las
sociedades de ventas voluntarias de bienes muebles en subasta pública y por los peritos autorizados. El importe de estas cotizaciones será determinado por el Consejo en función de la actividad de los obligados a este pago.
Artículo L321-22 Todo incumplimiento de las leyes, reglamentos u obligaciones profesionales aplicables a las sociedades de ventas
voluntarias de bienes muebles en subasta pública, a los peritos autorizados y a las personas habilitadas para dirigir las ventas en virtud del párrafo primero del artículo L.321-9 podrá dar lugar a sanción disciplinaria. La prescripción será de tres años contados a partir de la fecha de la infracción.
El Consejo decidirá por decisión debidamente justificada. No se procederá a ninguna sanción sin que los motivos hayan sido comunicados al representante legal de la sociedad, al perito o a la persona habilitada para dirigir las ventas, cuando éste haya estado en condiciones de tener conocimiento del informe y haya sido escuchado o debidamente citado para ello.
Las sanciones aplicables a las sociedades de ventas voluntarias de bienes muebles en subasta pública, a los peritos autorizados y a las personas habilitadas para dirigir las ventas, considerando la gravedad de los hechos imputados, serán: el apercibimiento, la reprensión, la prohibición del ejercicio de todo o parte de la actividad de modo temporal por una duración que no podrá exceder de tres años y la revocación de la autorización de la sociedad o del perito o la prohibición definitiva de dirigir las ventas.
En caso de urgencia y como medida cautelar, el presidente del Consejo podrá acordar la suspensión provisional del ejercicio de todo o parte de la actividad de una sociedad de ventas voluntarias de bienes muebles en subasta pública, de un perito autorizado o de una persona habilitada para dirigir las ventas, por un período que no podrá exceder de un mes, salvo prórroga decidida por el Consejo que no podrá exceder de tres meses. El Consejo será informado de tal suspensión inmediatamente.
Artículo L321-23 Las decisiones del Consejo de ventas voluntarias de bienes muebles en subasta pública y de su presidente podrán
ser objeto de un recurso ante la Cour d'appel de París. El recurso podrá ser llevado ante el primer presidente de dicha cour, quien resolverá en procedimiento sumario.
Artículo L321-29 Los peritos a los que podrán acudir las sociedades de ventas voluntarias de bienes muebles en subasta pública,
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CÓDIGO DE COMERCIO los agentes judiciales, los notarios y los peritos tasadores judiciales podrán ser autorizados por el Consejo de ventas voluntarias de bienes muebles en subasta pública.
El Consejo elaborará una lista de peritos autorizados en cada especialidad.
Artículo L321-30 Todo perito autorizado deberá estar inscrito en una de las especialidades cuya nomenclatura será determinada por
el Consejo de ventas voluntarias de bienes muebles en subasta pública. Nadie podrá estar en más de dos especialidades, a menos que se trate de especialidades afines a las anteriores
cuyo número no podrá ser superior a dos.
Artículo L321-31 (Ley nº 2004-130 de 11 de febrero de 2004 Artículo 58 1° Diario Oficial de 12 de febrero de 2004)
Todo perito, esté o no autorizado, estará obligado a contratar un seguro que garantice su responsabilidad profesional.
Será solidariamente responsable con el organizador de la venta en lo que se refiera a su actividad.
Artículo L321-32 Toda persona inscrita en la lista prevista en el artículo L.321-29 sólo podrá hacer constar su condición bajo la
denominación de perito autorizado por el Consejo de ventas voluntarias de bienes muebles en subasta pública. Esta denominación deberá ir acompañada de la indicación de su o de sus especialidades.
Artículo L321-33 El que, no figurando en la lista prevista en el artículo L.321-29, utilizase la denominación mencionada en este
artículo, o una denominación similar susceptible de provocar confusión en el público, será castigado con las penas previstas en el artículo 433-17 del Código Penal.
Artículo L321-34 El Consejo de ventas voluntarias de bienes muebles en subasta pública podrá decidir la revocación de la
autorización a un perito en caso de incapacidad legal, de falta profesional grave, de condena por hechos contrarios al honor, a la moral o a las buenas costumbres.
Artículo L321-35 (Ley nº 2004-130 de 11 de febrero de 2004 Artículo 58 2° y 3º Diario Oficial de 12 de febrero de 2004)
Un perito, esté autorizado o no, no podrá valorar ni poner en venta un bien que le pertenezca ni adquirir por su cuenta un bien, directa o indirectamente, en las ventas por subasta pública en las que él participe profesionalmente.
Sin embargo, el experto podrá vender de forma excepcional, con la mediación de una persona mencionada en el artículo L. 321-2, un bien que le pertenezca a condición de que se haga mención de ello en la publicidad.
Artículo L321-35-1 (Introducido por la Ley nº 2004-130 de 11 de febrero de 2004 Artículo 58 4° Diario Oficial de 12 de febrero de 2004)
Cuando recurra a un perito no autorizado, el organizador de la venta velará por que dicho perito cumpla las obligaciones previstas en el apartado primero del artículo L. 321-31 y en el artículo L. 321-35.
Sección IV Disposiciones diversas Artículos L321-36 a
L321-38
Artículo L321-36 Las ventas en subasta pública de bienes muebles pertenecientes al Estado que se definen en el artículo L.68 del
Código del Patrimonio del Estado, así como todas las ventas de bienes muebles efectuadas de forma demanial en las condiciones previstas en el artículo L.69 del citado Código, se harán igualmente según las condiciones previstas en estos artículos. Sin embargo, como excepción a lo dispuesto en los artículos L.68, L.69 y L.70 de dicho Código, estas ventas podrán ser realizadas con publicidad y competencia, por cuenta del Estado, por las sociedades de ventas voluntarias de bienes muebles en subasta pública en las condiciones previstas por el presente capítulo.
Las ventas de bienes muebles en subasta pública que deban someterse al Código de Aduanas serán realizadas según las condiciones previstas en el mismo Código. Sin embargo, como excepción a las disposiciones del Código de Aduanas, estas ventas podrán igualmente ser efectuadas con publicidad y competencia, por cuenta del Estado, por las sociedades de ventas voluntarias de bienes muebles en subasta pública, en las condiciones previstas en el presente capítulo.
Artículo L321-37 Los Tribunales civiles serán los únicos competentes para conocer de acciones judiciales relativas a las actividades
de venta en las que tome parte una sociedad de ventas voluntarias de bienes muebles en subasta pública constituidas en conformidad al presente capítulo. Cualquier cláusula en contrario se tendrá por no puesta. Sin embargo, los socios podrán acordar, en los estatutos, someter a arbitraje los litigios surgidos entre ellos o entre sociedades de ventas voluntarias en razón de su actividad.
Artículo L321-38 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Un decreto adoptado en Conseil d'Etat fijará las condiciones de aplicación del presente capítulo y, en particular, el
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CÓDIGO DE COMERCIO régimen de garantías previsto en el artículo L.321-6, las condiciones de información del Consejo de ventas voluntarias de bienes muebles en subasta pública cuando la exposición o la venta no se desarrollara en los locales previstos en la primera frase del artículo L.321-7, debiendo figurar en la publicidad prevista en el artículo L.321-11 las condiciones de organización y de funcionamiento del Consejo de ventas en subasta pública y las condiciones de autorización de los peritos por parte del Consejo.
CAPITULO II De las otras ventas en subasta pública Artículos L322-1 a
L322-16
Artículo L322-1 Las ventas públicas y al por menor de mercancías que se efectúan tras un fallecimiento o por autoridad judicial
serán realizadas de acuerdo a las formas prescritas y por los oficiales ministeriales encargados de la venta forzosa del mobiliario en conformidad con los artículos 53 de la Ley nº 91-650 de 9 de julio de 1991 relativa a la reforma de los procedimientos civiles de ejecución y el 945 del Código de Proceso Civil.
Artículo L322-2 Las ventas de mercancías tras la liquidación judicial serán realizadas según los artículos L.622-18 y siguientes. El mobiliario del deudor sólo podrá ser vendido en subasta con la intervención de los peritos tasadores judiciales,
notarios o agentes judiciales, en conformidad con las leyes y reglamentos que determinarán las atribuciones de estos funcionarios.
Artículo L322-3 Las ventas públicas y en subasta tras el cese de actividad de un comercio, o en los otros casos de necesidad
previstos por el artículo L.320-2 no podrán realizarse en tanto no hayan sido previamente autorizados por el Tribunal de commerce, a instancia del comerciante propietario a la que adjuntará una relación detallada de las mercancías.
El Tribunal hará constar, en su resolución, el hecho que haya dado lugar a la venta; indicará el lugar del distrito en el que se realizará la venta; podrá incluso ordenar que las adjudicaciones sólo se realicen por lotes de los que él determinará la cuantía.
Decidirá quien de los corredores o los peritos tasadores judiciales o cualquier otro funcionario público estará encargado de la recepción de las pujas.
Sólo se podrá conceder la autorización por causa de necesidad a un comerciante sedentario, que tenga desde hace más de un año su domicilio real en el distrito en el que haya de realizarse la venta.
Se colocarán carteles en la puerta del local en el que se realice la venta en donde se detallará la sentencia que la ha autorizado.
Artículo L322-4 Las ventas públicas en subasta de mercancías al por mayor serán efectuadas por corredores de mercancías
jurados en los casos, en las condiciones y siguiendo las formalidades determinadas por decreto adoptado en Conseil d'Etat.
Artículo L322-5 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Cualquier infracción a las disposiciones de los artículos L.320-1 y L.320-2 y L.322-1 a L.322-7 será castigada con la confiscación de las mercancías ofrecidas a la venta y con una multa de 3.750 euros que será impuesta solidariamente tanto contra el vendedor como contra el funcionario público que le haya ayudado, sin perjuicio de la indemnización por daños y perjuicios a que hubiere lugar.
Será considerada como cómplice y sujeta a las mismas penas aquella persona cuya intervención tenga como finalidad eludir la prohibición formulada en el artículo L.320-1.
Artículo L322-6 Se castigará con las penas previstas en el artículo L.322-5 a los vendedores y funcionarios públicos que incluyan,
en las ventas hechas por una autoridad judicial, por causa de embargo, de fallecimiento, de liquidación judicial, de cese de actividad de un comercio o en otros casos de necesidad previstos en el artículo L.320-2, mercancías nuevas que no formasen parte del fondo de comercio o mobiliario puesto en venta.
Artículo L322-7 En los lugares en los que no haya corredores de comercios, los peritos tasadores judiciales, los notarios y agentes
judiciales realizarán las ventas anteriormente citadas, según las atribuciones respectivas que le son otorgadas por las leyes y los reglamentos.
Estarán sometidos, para dichas ventas, a las formas, condiciones y tarifas impuestas a los corredores.
Artículo L322-8 (Disposición nº 2004-279 de 25 de marzo de 2004 Artículo 3 Diario Oficial de 27 de marzo de 2004)
Los corredores jurados podrán proceder, sin la autorización del Tribunal de Comercio, a la venta en subasta voluntaria, al por mayor, de mercancías. No obstante, se requerirá una autorización para mercancías tales como el material de transporte, las armas, municiones y sus accesorios, los objetos de arte, de colección o antigüedades así como los demás bienes de ocasión, cuya lista será establecida por orden del Ministro de Justicia y del Ministro de
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CÓDIGO DE COMERCIO Comercio.
NOTA: Resolución 2004-279 de 25 de marzo de 2004 art. 8 y 9: Lo dispuesto en el artículo L322-8 del Código de Comercio será de aplicación en Nueva Caledonia y en las islas Wallis y Futuna.
Artículo L322-9 Los corredores establecidos en una ciudad en donde tenga su sede un Tribunal de commerce estarán capacitados
para proceder a las ventas reguladas por el presente capítulo en cualquier localidad que dependa de la jurisdicción de este Tribunal en la que no existan corredores.
Se sujetarán a las disposiciones previstas por los artículos 871 y 873 del Código General de Impuestos.
Artículo L322-10 El derecho de corretaje para las ventas que sean objeto de los artículos L.322-8 al 322-13 será fijado, para cada
localidad, por el Ministro de Agricultura, el Ministro competente en materia de Comercio o el Ministro de Obras Públicas, previo dictamen de la Cámara de Comercio y de Industria y del Tribunal de commerce. En ningún caso podrá exceder de la cantidad establecida para las ventas de mutuo acuerdo para el mismo tipo de mercancías.
Artículo L322-11 Los litigios relativos a las ventas realizadas en aplicación del artículo L.322-8 serán sometidos al Tribunal de
commerce.
Artículo L322-12 Se procederá a las ventas previstas en el artículo L.322-8 en locales especialmente autorizados para ello, previo
dictamen de la Cámara de Comercio e Industria y del Tribunal de commerce.
Artículo L322-13 Un decreto adoptado en Conseil d'Etat determinará las medidas necesarias para la ejecución de los artículos
L.322-11 y L.322-12, y en particular los requisitos formales y las condiciones de las autorizaciones previstas por el artículo L.322-12.
Artículo L322-14 Los Tribunaux de commerce podrán autorizar la venta en subasta, al por mayor, tras un fallecimiento o el cese de
actividad del comercio y en cualquier otro caso de necesidad que le sea sometido para su evaluación, de las mercancías de todo tipo y procedencia.
La autorización será concedida previa solicitud. Se adjuntará a ésta una relación detallada de las mercancías propuestas para la venta.
El Tribunal hará constar en su resolución el hecho que hubiera provocado la venta.
Artículo L322-15 Las ventas autorizadas en virtud del artículo anterior, así como todas las que sean autorizadas u ordenadas por la
justicia consular en los diversos casos previstos por el presente Código serán realizadas con intervención de los corredores.
Sin embargo, seguirá siendo competencia del Tribunal, o del Juez que autoriza u ordena la venta, el nombramiento de otro tipo de funcionario público para proceder a ésta. En ese caso, el funcionario, sea cual fuere, estará sujeto a las disposiciones que regulan los actos realizados por los corredores, en lo que se refiere a los requisitos formales, a los precios y a su responsabilidad.
Artículo L322-16 Las disposiciones de los artículos L.322-11 a L.322-13 serán aplicables a las ventas citadas en los artículos
L.322-14 y L.322-15.
TITULO III DE LAS CLÁUSULAS DE EXCLUSIVIDAD Artículos L330-1 a
L330-3
Artículo L330-1 El período de validez de cualquier cláusula de exclusividad estará limitado a un máximo de diez años. Por ésta el
comprador, cesionario o arrendatario de bienes muebles se comprometerá con respecto a su vendedor, cedente o arrendador, a no hacer uso de objetos similares o complementarios que provengan de otro proveedor.
Artículo L330-2 Cuando el contrato que contenga la cláusula de exclusividad mencionada en el artículo L.330-1 esté seguido de
nuevos compromisos análogos, entre las mismas partes, relacionados con el mismo tipo de bienes, las cláusulas de exclusividad contenidas en estos nuevos acuerdos finalizarán en la misma fecha que figure en el primer contrato.
Artículo L330-3 Toda persona que ponga a disposición de otra un nombre comercial, una marca o una firma comercial, exigiendo
un compromiso de exclusividad o de casi exclusividad para el ejercicio de su actividad, estará obligada, antes de firmar cualquier contrato suscrito en interés común de ambas partes, a suministrar a la otra parte un documento que dé informaciones exactas y fidedignas que le permitan comprometerse con conocimiento de causa.
Este documento, cuyo contenido será establecido por decreto, precisará la antigüedad y la experiencia de la
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CÓDIGO DE COMERCIO empresa, el estado y las perspectivas de desarrollo del mercado en cuestión, la importancia de la red de explotadores, la duración, las condiciones de renovación, de rescisión y de cesión del contrato así como el campo de las exclusividades.
Cuando se exija el pago de una cantidad antes de la firma del contrato mencionado anteriormente, en especial para obtener la reserva de una zona, las prestaciones aseguradas en contrapartida de esta cantidad deberán ser precisadas por escrito, así como las obligaciones recíprocas de las partes en caso de retracto.
El documento previsto en primer párrafo, así como el proyecto de contrato serán comunicados como mínimo veinte días antes de la firma del contrato o, en su caso, antes del pago de la cantidad mencionada en el párrafo anterior.
LIBRO IV DE LA LIBERTA DE PRECIOS Y DE LA COMPETENCIA Artículos L410-1 a
L470-8 TITULO I DISPOSICIONES GENERALES Artículos L410-1 a
L410-2
Artículo L410-1 Las normas previstas en el presente libro se aplicarán a cualquier actividad de producción, de distribución y de
servicios, incluidas las que sean competencia del sector público, en particular en el marco de los contratos de delegación de servicio público.
Artículo L410-2 Salvo en los casos en los que la Ley disponga otra cosa, los precios de los bienes, productos y servicios regulados
con anterioridad al 1 de enero de 1987 por la Disposición nº 45-1483 de 30 de junio de 1945 serán libremente fijados por el juego de la libre competencia.
Sin embargo, un decreto adoptado en Conseil d'Etat podrá regular los precios tras haber consultado al Consejo de la Competencia en los sectores o las zonas en los que la competencia de precios esté limitada por situaciones de monopolio o dificultades perdurables de suministro, o bien en razón de disposiciones legislativas o reglamentarias.
Las disposiciones de los dos primeros párrafos no serán obstáculo para lo que disponga el Gobierno por decreto adoptado en Conseil d'Etat contra las subidas y bajadas excesivas de precios, medidas temporales motivadas por una situación de crisis, circunstancias excepcionales, calamidad pública o una situación manifiestamente anormal del mercado en un determinado sector. El decreto será promulgado tras consultar al Consejo Nacional de Consumo. Éste determinará su período de vigencia que no podrá exceder de seis meses.
TITULO II DE LAS PRÁCTICAS CONTRARIAS A LA LIBRE COMPETENCIA Artículos L420-1 a
L420-7
Artículo L420-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 52 Diario Oficial de 16 de mayo de 2001)
Se prohibirán las acciones concertadas, los convenios, acuerdos expresos o tácitos, o coaliciones que tengan por finalidad o puedan tener por efecto impedir, restringir o falsear el juego de la libre competencia, aunque sea por mediación directa o indirecta de una sociedad del grupo implantada fuera de Francia, en particular cuando estén orientados a:
1º Limitar el acceso al mercado o el libre ejercicio de la competencia por parte de otras empresas; 2º Obstaculizar la determinación de precios por el libre mercado, favoreciendo artificialmente su subida o su
bajada; 3º Limitar o controlar la producción, las salidas a mercado, las inversiones o el progreso técnico; 4º Repartir los mercados o las fuentes de suministro.
Artículo L420-3 Será nulo todo compromiso, contrato o cláusula contractual que incluya alguna de las prácticas prohibidas por los
artículos L.420-1 y L.420-2.
Artículo L420-4 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 48 Diario Oficial de 16 de mayo de 2001)
I.- No se someterán a las disposiciones de los artículos L.420-1 y L.420-2 las prácticas: 1º Que resulten de la aplicación de un texto legislativo o de un texto reglamentario tomado para su aplicación; 2º Aquellas cuyos autores puedan probar que tienen por efecto asegurar un progreso económico, incluida la
creación o mantenimiento de puestos de trabajo y que reservan a los usuarios una parte ponderada del beneficio que resulte de ellas, sin dar a las empresas interesadas la posibilidad de eliminar la competencia para una parte sustancial de los productos en cuestión. Estas prácticas, que pueden consistir en organizar bajo una misma marca o firma, los volúmenes, la calidad de producción y la política comercial, en la que se puede incluir el acuerdo de un precio de venta común para los productos agrícolas o de origen agrícola, sólo deberán imponer restricciones a la libre competencia en la medida en que sean indispensables para alcanzar este objetivo de progreso.
II. - Algunas clases de acuerdos o algunos acuerdos, sobre todo cuando tienen por objeto mejorar la gestión de las
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CÓDIGO DE COMERCIO pequeñas y medianas empresas, podrán ser considerados como conformes a estas condiciones por decreto adoptado previo dictamen del Consejo de la Competencia.
Artículo L420-6 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 67 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigada con cuatro años de prisión y 75.000 euros toda persona física que tomase parte fraudulentamente, de forma personal y determinante, en la concepción, organización o realización de las prácticas citadas en los artículos L.420-1 y L.420-2.
El Tribunal podrá ordenar que su resolución sea publicada, íntegramente o por extractos, en los periódicos que él designe, por cuenta de la persona sancionada.
Los actos que interrumpan la prescripción ante el Consejo de la Competencia en aplicación del artículo L. 462-7 interrumpirán también la prescripción de la acción pública.
Artículo L420-7 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 82 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 1 Diario Oficial de 5 de noviembre de 2004)
Sin perjuicio de los artículos L. 420-6, L. 462-8, L. 463-1 à L. 463-4, L. 463-6, L. 463-7 y L. 464-1 a L. 464-8, los litigios relativos a la aplicación de las normas previstas en los artículos L. 420-1 a L. 420-5, en los artículos 81 y 82 del Tratado Constitutivo de la Comunidad Europea y en aquéllos en las que dichas disposiciones están contempladas, serán competencia, según el caso y sin perjuicio de las normas de atribución de competencias entre los diferentes órdenes jurisdiccionales, de los tribunaux de grande instance o de los tribunaux de commerce cuya sede y circunscripción serán determinadas por decreto adoptado en Conseil d'Etat. Dicho decreto determinará igualmente la sede y la circunscripción de las Cours d'appel que serán competentes para conocer de las resoluciones dictadas por dichos órganos jurisdiccionales.
TITULO III DE LA CONCENTRACIÓN ECONÓMICA Artículos L430-1 a
L430-10
Artículo L430-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 86 Diario Oficial de 16 de mayo de 2001)
I.- Se realizará una operación de concentración: 1º Cuando se fusionen dos o más empresas anteriormente independientes; 2º Cuando una o varias personas, que posean ya el control de al menos una empresa o cuando una o varias
empresas adquieran el control del conjunto o de parte de una o varias empresas distintas, directa o indirectamente, por la adquisición de participación en el capital o por la compra de elementos activos, por contrato o por cualquier otro medio.
II. - La creación de una empresa común que cumpla de modo estable todas las funciones de una entidad económica autónoma constituirá una concentración a efectos del presente artículo.
III. - Con la finalidad de la aplicación del presente título, el control derivará de los derechos, contratos u otros medios que confieran la posibilidad de ejercer una influencia determinante en la actividad de una empresa, por sí solos o conjuntamente y considerando las circunstancias de hecho o de derecho y en especial:
- de los derechos de propiedad o de goce en todo o parte de los bienes de una empresa; - de los derechos o de los contratos que confieran una influencia determinante en la composición, los acuerdos o
las decisiones de los órganos de una empresa
Artículo L430-2 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 87 Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-660 de 21 de julio de 2003 Artículo 59 Diario Oficial de 22 de julio de 2003) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 25 Diario Oficial de 27 de marzo de 2004)
Estará sujeta a las disposiciones de los artículos L.430-3 y siguientes del presente título toda operación de concentración, en el sentido del artículo L.430-1, cuando se cumplan los tres requisitos siguientes:
- La cifra de negocios total mundial, sin incluir impuestos, del conjunto de empresas o grupos de las personas físicas y jurídicas que forman parte de la concentración es superior a 150 millones de euros;
- La cifra de negocios total, sin incluir impuestos, realizada en Francia para al menos dos de las empresas o grupos de personas físicas o jurídicas implicadas, es superior a 50 millones de euros;
- La operación no entra en el ámbito de aplicación del Reglamento comunitario nº 4064/89 del Consejo de 21 de diciembre de 1989 relativo al control de las operaciones de concentración entre empresas.
Sin embargo, una operación de concentración que entre en el marco del reglamento anteriormente citado y que haya sido objeto de una remisión total o parcial a la autoridad nacional estará sujeta a las disposiciones del presente título dentro de los límites de esta remisión.
En los departamentos de Ultramar, cuando una operación de concentración en el sentido del artículo L. 430-1 tenga por efecto, bien aumentar la superficie de venta definida en el artículo L. 720-4 más allá del límite fijado por dicho artículo, bien aumentar la cuota de mercado, expresada en cifra de negocios, de las empresas sujetas a los dispuesto en el mismo artículo, en más del 25 %, el Ministro podrá someterla al procedimiento previsto en los artículos L. 430-3 y
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CÓDIGO DE COMERCIO siguientes dentro de un plazo de tres meses. No obstante, no se aplicará a dichas operaciones lo dispuesto en el artículo L. 430-4.
Artículo L430-3 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 88 Diario Oficial de 16 de mayo de 2001) (Ley nº 2004-1343 de 9 de diciembre de 2004 Artículo 83 II Diario Oficial de 10 de diciembre de 2004)
La operación de concentración deberá ser notificada al Ministro de Economía antes de su realización. La notificación podrá tener lugar cuando la o las partes afectadas estén en condiciones de presentar un proyecto lo suficientemente acabado como para permitir la instrucción del expediente, y especialmente cuando éstas hayan llegado a un acuerdo de principio, firmado una carta de intención, o a partir del momento del anuncio de la oferta pública. La remisión ante el Ministro de Economía de la totalidad o parte de un caso de concentración notificado a la Comisión Europea tendrá el valor de notificación a efectos del presente artículo.
La obligación de notificación afectará a las personas físicas o jurídicas que adquieran el control de todo o parte de una empresa o a todas las partes afectadas en el caso de una fusión o de la creación de una empresa común, las cuales deberán entonces realizar conjuntamente la notificación. El contenido del informe de notificación será establecido por decreto.
La recepción de la notificación de una operación, o la remisión total o parcial de una operación de dimensión comunitaria será objeto de un comunicado publicado por el Ministro de Economía según condiciones establecidas por decreto.
En el momento de la recepción del informe de notificación, el Ministro enviará un ejemplar del mismo al Consejo de la Competencia.
Artículo L430-4 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 89 Diario Oficial de 16 de mayo de 2001)
La realización de una operación de concentración sólo podrá hacerse efectiva tras el acuerdo del Ministro de Economía y, en su caso, del Ministro encargado del sector económico correspondiente.
En caso de necesidad específica debidamente motivada, las partes que hubieran realizado la notificación podrán solicitar al Ministro de Economía una autorización especial que les permita proceder a la concentración efectiva de la totalidad o parte de la concentración sin esperar la decisión mencionada en el primer párrafo y sin perjuicio de ésta.
Artículo L430-5 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 90 Diario Oficial de 16 de mayo de 2001)
I.- El Ministro de Economía se pronunciará sobre la operación de concentración en un plazo de cinco semanas contadas a partir de la fecha de recepción de la notificación completa.
II. II.- Las partes implicadas en la operación podrán comprometerse a tomar medidas orientadas sobre todo a remediar eventualmente los efectos contrarios a la libre competencia de la operación en el momento de la notificación de esta operación, o en cualquier momento antes de la expiración del plazo de cinco semanas contadas a partir de la fecha de recepción de la notificación completa, mientras la decisión prevista en el punto I no se haya producido.
Si los compromisos fueran recibidos por el Ministro dos semanas después de la notificación completa de la operación, el plazo mencionado en el punto I expirará tres semanas después de la fecha de recepción de dichos compromisos por parte del Ministro de Economía.
III. - El Ministro de Economía podrá: - Hacer constar, por motivo justificado, que la operación que le ha sido notificada no entra en el ámbito definido por
los artículos L.430-1 y L.430-2; - O autorizar la operación, subordinando esta autorización, eventualmente y por motivo justificado, al cumplimiento
efectivo de los compromisos de ambas partes. Sin embargo, si estima que la operación pudiera perjudicar a la libre competencia y que dichos compromisos no
bastarán para remediarlo, instará al Consejo de la Competencia para que emita su dictamen. IV. - Si el Ministro no tomara ninguna de las tres decisiones previstas en el punto III en el plazo mencionado en el
punto I, eventualmente prolongado en aplicación del punto II, se considerará que la operación ha sido objeto de una decisión de autorización.
Artículo L430-7 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 92 Diario Oficial de 16 de mayo de 2001)
I.- Cuando se haya sometido al Consejo de la Competencia, la operación de concentración será objeto de una resolución en un plazo de cuatro semanas contadas a partir del envío del dictamen del Consejo al Ministro de Economía.
II. - Tras haber conocido dicho dictamen del Consejo de la Competencia, las partes podrán proponer ciertos compromisos para paliar los efectos contrarios a la libre competencia de la operación antes de que finalice el plazo de cuatro semanas contadas a partir de la fecha del envío del dictamen al Ministro, salvo si la operación ya hubiera sido objeto de la resolución prevista en el punto I.
Si los compromisos fueran transmitidos al Ministro transcurrida una semana desde la fecha de remisión del dictamen al propio Ministro, el plazo mencionado en el punto I expirará tres semanas después de la fecha en que éste reciba dichos compromisos.
III. - El Ministro de Economía y, en su caso, el Ministro encargado del sector económico correspondiente podrán, por medio de una orden motivada:
- Prohibir la operación de concentración y requerir eventualmente de las partes que tomen medidas orientadas a
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CÓDIGO DE COMERCIO restablecer una competencia suficiente;
- Autorizar la operación requiriendo de las partes que tomen medidas que aseguren una competencia suficiente u obligándoles a observar ciertas prescripciones orientadas a aportar una contribución suficiente al progreso económico y social para paliar los perjuicios producidos a la libre competencia.
Estos requerimientos y prescripciones mencionados en los dos párrafos anteriores se impondrán sean cuales fueren las cláusulas contractuales eventualmente firmadas por las partes.
El proyecto de resolución será transmitido a las partes interesadas a las que se les dará un plazo para presentar sus observaciones.
IV. - Si el Ministro de Economía y el Ministro encargado del sector económico correspondiente no previeran tomar ninguna de las decisiones previstas en el punto III, el Ministro de Economía autorizará la operación por medio de una resolución justificada. La autorización podrá ser subordinada a la realización efectiva de los compromisos previstos por las partes que hayan procedido a la notificación.
V.- Si no se hubiesen tomado ninguna de las tres decisiones previstas en los puntos III y IV en el plazo mencionado en el punto I, eventualmente prorrogado en aplicación del punto II, se considerará que la operación ha sido objeto de una resolución de autorización.
Artículo L430-8 (Introducido por la Ley nº 2001-420 de 15 de mayo de 2001 Artículo 92 Diario Oficial de 16 de mayo de 2001)
I.- Si una operación de concentración hubiese sido realizada sin ser notificada, el Ministro de Economía podrá penalizar a las personas encargadas de la notificación con una sanción pecuniaria cuyo importe máximo se elevará al 5 % del volumen de negocio realizado en Francia en el último ejercicio cerrado sin impuestos, incrementado eventualmente por el realizado en Francia durante el mismo período por la parte adquirida, para las personas jurídicas y, para las personas físicas, a 1,5 millones de euros.
Además el Ministro requerirá de las partes, bajo pena de multa, que notifiquen la operación, a menos que vuelvan al estado anterior a la concentración. Podrá igualmente someter el asunto al Consejo de la Competencia sin esperar a la notificación. Se aplicará entonces el procedimiento previsto en los artículos L.430-5 al 430-7.
II. - Si una operación de concentración notificada y no beneficiada por la excepción a la aplicación prevista en el párrafo segundo del artículo L.430-4, hubiera sido realizada antes de producirse la resolución prevista en el párrafo primero del mismo artículo, el Ministro de Economía podrá imponer una sanción pecuniaria a las personas que hayan procedido a la notificación, que no podrá sobrepasar el importe establecido en el punto I.
III. - En caso de omisión o de declaración inexacta en una notificación, el Ministro de Economía podrá penalizar a las personas que hayan procedido a dicha notificación con una sanción pecuniaria que no podrá exceder del importe establecido en el punto I.
Esta sanción podrá ir acompañada de la revocación de la autorización de la operación. A menos que vuelvan al estado anterior a la concentración, las partes estarán entonces obligadas a notificar de nuevo la operación en un plazo de un mes contado a partir de la revocación de la autorización, en su defecto, se expondrían a las mismas sanciones previstas en el punto I;
IV. - Si el Ministro de Economía considerara que las partes no hubieran ejecutado una orden, una prescripción o un compromiso en los plazos fijados, podrá acudir al Consejo de la Competencia para que emita su dictamen.
Si el dictamen del Consejo de la Competencia constatara la falta de ejecución, el Ministro de Economía y, llegado el caso, el Ministro encargado del sector económico correspondiente podrán:
1º Retirar la decisión que hubiera autorizado la realización de la operación. A menos que vuelvan a su estado anterior a la concentración, las partes estarán obligadas a notificar de nuevo la operación en un plazo de un mes contado a partir de la revocación de la autorización; si no lo hicieran, se expondrán a las mismas sanciones previstas en el punto I;
2º Requerir a las partes a las que incumba la obligación no cumplida para que ejecuten los requerimientos, prescripciones o compromisos en un plazo determinado, bajo pena de multa.
Además, el Ministro de Economía podrá penalizar a las personas a las que incumbiera dicha obligación no ejecutada con una sanción pecuniaria que no podrá exceder del importe definido en el punto I.
Artículo L430-9 (Introducido por la Ley nº 2001-420 de 15 de mayo de 2001 Artículo 91 Diario Oficial de 16 de mayo de 2001)
El Consejo de la Competencia podrá, en caso de explotación abusiva de una posición dominante o de un estado de dependencia económica, solicitar al Ministro de Economía para que junto con el Ministro encargado del sector económico correspondiente, requiera por medio de una orden motivada, a la empresa o al grupo de empresas infractoras, la modificación, el complemento o la rescisión en un plazo determinado de todos los acuerdos y de todos los actos por los que se hubiera realizado la concentración de la potencia económica que ha permitido los abusos, aunque estos actos hubieran sido objeto del procedimiento previsto en el presente título.
Artículo L430-10 (Introducido por la Ley nº 2001-420 de 15 de mayo de 2001 Artículo 93 Diario Oficial de 16 de mayo de 2001)
I.- Las decisiones tomadas en aplicación de los artículos L.430-5 a L.430-8 serán publicadas, eventualmente acompañadas del dictamen del Consejo de la Competencia, según las condiciones determinadas por decreto.
II. - Cuando el Ministro de Economía interrogue a terceros sobre la operación, sus efectos y los compromisos propuestos por las partes y haga pública su decisión en las condiciones previstas en el punto I, tendrá en cuenta el interés legítimo de las partes que proceden a la notificación o de las partes citadas de que no se divulguen las
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CÓDIGO DE COMERCIO informaciones confidenciales que afecten a sus negocios.
TITULO IV DE LA TRANSPARENCIA, DE LAS PRÁCTICAS RESTRICTIVAS DE LA
COMPETENCIA Y DE OTRAS PRÁCTICAS PROHIBIDAS Artículos L441-1 a L443-3
CAPITULO PRELIMINAR Disposiciones generales
CAPITULO I De la transparencia Artículos L441-1 a
L441-5
Artículo L.441-1 (Ley nº 2001-1168 de 11 de diciembre de 2001 art. 13 IV 1° Diario Oficial de 12 de diciembre de 2001)
Las normas relativas a las condiciones de venta al consumidor serán determinadas por el artículo L.113-3 del Código de Consumo, que se transcribe a continuación:
"Art.113-3.- Todo vendedor de productos o prestatario de servicios estará obligado, mediante etiquetado, marcación, fijación de avisos o a través de cualquier otro procedimiento idóneo, a comunicar a los consumidores los precios, las eventuales limitaciones de la responsabilidad contractual y las condiciones particulares de venta, según las modalidades fijadas mediante decisión del ministro de Economía, previa consulta con el Consejo Nacional del Consumo".
La presente disposición será de aplicación a todas las actividades contempladas en el último párrafo del artículo L.113-2.
Las normas relativas a la obligación de suministrar información por parte de las entidades de crédito y los organismos mencionados en el artículo L.518-1 del Código Monetario y Financiero serán determinadas por los puntos I y II del artículo L.312-1-1 del mismo Código.
Artículo L.441-2 (Ley nº 2001-420 de 15 de mayo de 2001 art. 49 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2005-157 de 23 de febrero de 2005 art. 32 Diario Oficial de 24 de febrero de 2005)
Toda publicidad con relación al consumidor, difundida por cualquier medio o visible desde el exterior del lugar de venta, que mencionase una reducción de precio o un precio de promoción en productos alimenticios perecederos, deberá precisar la naturaleza y el origen del o de los productos ofertados así como el periodo durante el cual se mantendrá la oferta propuesta por el anunciante. La mención relativa al origen estará inscrita en caracteres de igual tamaño que los relativos al precio.
Cuando tales operaciones promocionales fueran susceptibles de desorganizar los mercados, por su amplitud o su frecuencia, una orden ministerial o, en su defecto, prefectoral determinará, la periodicidad y la duración de tales operaciones para los productos en cuestión.
En el caso de fruta o verdura fresca que haya sido objeto entre el proveedor y su cliente de un acuerdo sobre el precio de cesión, el anuncio del precio fuera del lugar de venta estará autorizado en un plazo máximo de setenta y dos horas anteriores al primer día de aplicación del precio anunciado, por una duración que no podrá exceder de cinco días a partir de dicha fecha.
En los demás casos, cualquier anuncio de precio fuera del lugar de venta, relativo a fruta o verdura fresca, cualquiera que fuere su origen, deberá ser objeto de un acuerdo interprofesional de un año renovable que deberá suscribirse de conformidad con lo dispuesto en el artículo L.632-1 del Código RuraL. Dicho acuerdo precisará los periodos durante los cuales estará autorizado este anuncio, así como sus modalidades.
El mismo podrá ampliarse según lo dispuesto en los artículos L.632-3 y L.632-4 de dicho Código. Lo dispuesto en los tres párrafos anteriores no será de aplicación a la fruta y verdura fresca perteneciente a
especies no producidas en Francia metropolitana. Cualquier infracción a las disposiciones de los párrafos anteriores será sancionada con multa de 15.000 euros. Se podrá ordenar, en las condiciones previstas en el artículo L.121-3 del Código de Consumo, el cese de la
publicidad realizada incumpliendo las disposiciones del presente artículo.
Artículo L.441-2-1 (Ley nº 2005-157 de 23 de febrero de 2005 art. 33 Diario Oficial de 24 de febrero de 2005) (Ley nº 2006-11 de 1 de enero de 2006 art. 53 III Diario Oficial de 6 de enero de 2006)
En el caso de los productos agrícolas perecederos o procedentes de ciclos cortos de producción, de animales vivos, canales de animales, así como en el de los productos de la pesca y acuicultura que figuren en un listado establecido por decreto, el distribuidor o el proveedor de servicios sólo podrá beneficiarse de descuentos, rebajas y reintegros, o prever la remuneración de servicios de cooperación comercial cuando estos estén previstos en un contrato escrito relativo a la venta de dichos productos por el proveedor.
Dicho contrato deberá incluir en especial cláusulas relativas a los compromisos sobre los volúmenes, a las modalidades de determinación del precio en función del volumen y calidad de los productos y servicios en cuestión así como a la fijación de un precio determinado.
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CÓDIGO DE COMERCIO Cuando un contrato tipo relativo a las actividades mencionadas en el párrafo primero esté incluido en un acuerdo
interprofesional adoptado por la organización interprofesional reconocida para dicho producto y se haga extensivo en aplicación de los artículos L.623-3 y L.632-4 del Código Rural, el contrato mencionado en el párrafo primero deberá ser acorde con dicho contrato tipo. El contrato tipo podrá incluir cláusulas tipo relativas a los compromisos y a las modalidades de determinación de precios mencionados en el párrafo segundo, a los calendarios de entrega, a la duración del contrato y al principio de precio mínimo, elaborándose el contenido de dichas cláusulas en el marco de la negociación comercial entre los cocontratantes.
Cualquier infracción a lo dispuesto en el presente artículo será sancionada con multa de 15.000 euros.
Artículo L441-3 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 53 I Diario Oficial de 16 de mayo de 2001)
Cualquier compra de productos o cualquier prestación de servicios por medio de una actividad profesional deberá ser objeto de una factura.
El vendedor estará obligado a entregar la factura en el momento de la realización de la venta o la prestación del servicio. El comprador deberá reclamarla. La factura será redactada obligatoriamente por duplicado. Debiendo conservar un ejemplar cada uno, el comprador y el vendedor.
La factura deberá mencionar el nombre de las partes, así como su dirección, la fecha de la venta o de la prestación del servicio, la cantidad, la denominación precisa, y el precio unitario sin T.V.A. (Taxe valeur ajoutée: Impuesto sobre el valor añadido) de los productos vendidos y de los servicios prestados así como toda reducción de precio aplicada en la fecha de la venta o de la prestación de los servicios y directamente ligada a esta operación de venta o de prestación de servicios, con exclusión de los descuentos no previstos en la factura.
La factura mencionará también la fecha en la que se deberá producir el pago. Precisará las condiciones de descuento aplicables en caso de pago en una fecha anterior a la resultante de la aplicación de las condiciones generales de venta así como el porcentaje de penalización exigible al día siguiente de la fecha de pago inscrita en la factura. Se considerará efectuado el pago en la fecha en que el cliente ponga los fondos a disposición del beneficiario o de su subrogado.
Artículo L441-4 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Toda infracción a las disposiciones del artículo L. 441-3 se sancionará con multa de 75.000 euros. La multa podrá ser aumentada hasta un 50% de la cantidad facturada o de la que hubiera debido ser facturada.
Artículo L441-5 Las personas jurídicas podrán ser declaradas responsables penalmente de la infracción citada en el artículo
L.441-4. en las condiciones previstas en el artículo 121-2 del Código Penal. Las penas a las que se expondrán las personas jurídicas serán:
1º La multa en las condiciones previstas por el artículo 131-38 del Código Penal; 2º Pena de exclusión de los contratos con la administración por un período máximo de cinco años, en aplicación
del apartado 5º del artículo 131-39 de dicho Código.
CAPITULO II De las prácticas restrictivas de la competencia Artículos L442-1 a
L442-10
Artículo L442-1 (Ley nº 2001-1168 de 11 de diciembre de 2001 Artículo 13 IV 2° Diario Oficial de 12 de diciembre de 2003) (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Las normas relativas a las ventas o prestaciones con primas, denegaciones de ventas y servicios, prestaciones por lotes o por cantidades impuestas serán determinadas en los artículos L.121-35 y L.122-1 del Código de Consumo, que reproducimos seguidamente:
"Art. L. 121-35.- Estará prohibida toda venta u oferta de venta de productos o bienes o de toda prestación u oferta de prestación de servicios, hecha a los consumidores y que den derecho a una prima a título gratuito, inmediatamente o en un determinado plazo, consistente en productos, bienes o servicios, salvo si son idénticos a los que son objeto de la venta o de la prestación.
Esta disposición no se aplicará a los pequeños objetos o servicios de escaso valor ni a las muestras. Esta disposición se aplicará a todas las actividades mencionadas en el último párrafo del artículo les L. 113-2. Para los establecimientos de crédito y los organismos mencionados en el artículo L. 518-1 del Código Monetario y
Financiero, las normas relativas a las ventas con primas serán fijadas por el apartado 2° del punto I del artículo L. 312-1-2 del mismo Código."
"Art. L.122-1.- Estará prohibido denegar a un consumidor la venta de un producto o la prestación de un servicio, salvo motivo legítimo y subordinar la venta de un producto a la compra de una cantidad impuesta o a la compra vinculada a otro producto o de otro servicio así como subordinar la prestación de un servicio a la de otro servicio o a la compra de un producto."
Esta disposición se aplicará a todas las actividades mencionadas en el último párrafo del artículo les L. 113-2. Para los establecimientos de crédito y los organismos mencionados en el artículo L. 518-1 del Código Monetario y
Financiero, las normas relativas a las ventas subordinadas serán fijadas por el apartado 2° del punto I del artículo L.
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CÓDIGO DE COMERCIO 312-1-2 del mismo Código."
Artículo L442-2 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
El comerciante que revendiera o anunciara la reventa de un producto en su estado inicial por un importe, inferior a su precio de compra efectivo será sancionado con multa de 75.000 euros. Esta multa podrá corresponder a la mitad de los gastos de publicidad en el caso de que un anuncio publicitario, sea cual fuere su soporte, anunciase un precio inferior al precio de compra efectivo.
El precio de compra efectivo será el precio unitario que figure en la factura incrementada por los impuestos sobre el volumen de negocios, por los impuestos específicos vinculados a esta reventa y por el coste del transporte.
Artículo L442-3 Las personas jurídicas podrán ser declaradas responsables penalmente, en las condiciones previstas por el
artículo 121-2 del Código Penal, de la infracción prevista en el artículo L.442-2. Las penas a las que se expondrá son: 1º La multa en las condiciones previstas por el artículo 131-38 del Código Penal; 2º La pena mencionada en el apartado 9º del artículo 131-39 de citado Código. Se podrá ordenar el cese del anuncio publicitario en las condiciones previstas en el artículo L.121-3 del Código de
Consumo.
Artículo L.442-4 (Ley nº 2005-845 de 26 de julio de 2005 art. 164 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I.- Lo dispuesto en el artículo L.442-2 no será de aplicación: 1º A las ventas voluntarias o forzosas motivadas por el cese o el cambio de una actividad comercial: a) A los productos cuya venta presente un marcado carácter estacional, durante el periodo final de la temporada de
ventas y en el intervalo comprendido entre dos temporadas de venta; b) A los productos que ya no respondan a la demanda general a causa de la evolución de la moda o de la aparición
de perfeccionamientos técnicos; c) A los productos de características idénticas, cuyo reaprovisionamiento se haya efectuado a la baja en su precio,
sustituyéndose entonces el precio efectivo de compra por el precio resultante de la nueva factura de compra; d) A los productos alimenticios comercializados en una tienda cuya superficie de venta sea menor de 300 metros
cuadrados y a los productos no alimenticios comercializados en una tienda cuya superficie de venta sea menor de 1.000 metros cuadrados, cuyo precio de reventa se ajuste al precio legalmente aplicado por otro comerciante para los mismos productos en la misma zona de actividad;
2º A los productos perecederos a partir del momento en que estén amenazados de rápida alteración, siempre que la oferta de precio reducido no sea objeto de cualquier publicidad o anuncio en el exterior del punto de venta.
II.- Las excepciones previstas en el apartado I no obstarán a la aplicación del apartado 2° del artículo L.653-5 y del apartado1° del artículo L.654-2.
Artículo L442-5 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será sancionada con multa de 15.000 euros toda persona que imponga, directa o indirectamente, un mínimo al precio de reventa de un producto o de un bien, al precio de una prestación de servicio o a un margen comercial.
Artículo L442-7 Ninguna asociación o cooperativa de empresa o de administración podrá, de modo habitual, ofrecer productos a la
venta, venderlos o realizar servicios si estas actividades no estuvieran previstas en sus estatutos.
Artículo L442-8 Se prohibe a cualquier persona ofrecer a la venta productos o proponer servicios utilizando, en condiciones
irregulares, el patrimonio del Estado, de las administraciones locales y sus establecimientos públicos. Las infracciones a la prohibición mencionada en el párrafo anterior se investigarán y constatarán según lo
dispuesto en los artículos L.450-1 a L.450-3 y en el L.450-8. Los agentes podrán depositar, en aquellos locales que determinen y durante un período que no podrá ser superior
a un mes, los productos ofrecidos a la venta y los bienes que hayan permitido la venta o la oferta de servicios. Este depósito dará lugar al levantamiento inmediato de un atestado. Éste incluirá un inventario de los bienes y de
las mercancías consignados así como la mención de su valor. Será presentada al Fiscal de la República y al interesado, en los cinco días siguientes a su cierre.
El órgano jurisdiccional podrá ordenar la confiscación de los productos ofrecidos a la venta y los bienes que hayan permitido la venta de los productos o la oferta de servicios. El órgano jurisdiccional podrá condenar al autor de la infracción a pagar al Tesoro Público una cantidad que corresponda al valor de los productos consignados, en el caso en que no se haya ordenado el decomiso.
Artículo L.442-9 (Introducido por la Ley nº 2005-157 de 23 de febrero de 2005 art. 34 I Diario Oficial de 24 de febrero de 2005)
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CÓDIGO DE COMERCIO Comprometerá su responsabilidad y le obligará a reparar el daño causado, cualquier productor, comerciante,
industrial o persona inscrita en el Registro Central de Artesanos, aplicara o hiciera aplicar, en una situación de crisis coyuntural tal como está definida en el artículo L.611-4 del Código Rural, precios de primera cesión abusivamente bajos para los productos que figuren el listado previsto en el artículo L.441-2-1 del presente Código.
Lo dispuesto en los puntos III y IV del artículo L.442-6 será aplicable a la acción prevista por el presente artículo.
Artículo L.442-10 (introducido por la Ley nº 2005-882 de 2 de agosto de 2005 art. 51 Diario Oficial de 3 de agosto de 2005)
I. - Será considerado nulo el contrato en virtud del cual un proveedor se comprometa con cualquier productor, comerciante o persona inscrita en el Registro Central de Artesanos, en relación con una oferta de precio consiguiente a una subasta inversa realizada a distancia, organizada especialmente por vía electrónica, cuando no satisfaga al menos a una de las siguientes reglas:
1° Previamente a la subasta, el comprador o la persona que la organice por cuenta de este comunicará de forma transparente y no discriminatoria al conjunto de candidatos admitidos a presentar una oferta, los elementos determinantes de los productos o prestaciones de servicios que el mismo desee adquirir, las condiciones y modalidades de compra, los criterios de selección detallados así como las reglas que se seguirán en la subasta;
2° Tras la fase de pujas, se revelará la identidad del candidato retenido a cualquier otro candidato que haya participado en la subasta y así lo solicite. Si el autor de la oferta seleccionada se hallara en mora, nadie estará obligado a retomar la subasta a partir del último precio o de la última puja.
II. - El comprador o la persona que organice la subasta por cuenta de este realizará una grabación del desarrollo de la subasta, que deberá conservar durante un año. Dicha grabación podrá ser utilizada en el marco de una investigación, con arreglo a las condiciones previstas en el título V del presente libro.
III.- Se prohibirán las subastas inversas organizadas a distancia por el comprador o su representante en el caso de los productos agrícolas mencionados en el párrafo primero del artículo L.441-2-1, así como en el de los productos alimenticios de consumo corriente procedente de la primera transformación de los primeros.
IV. - El hecho de incumplir lo dispuesto en los puntos I a III comprometerá la responsabilidad de su autor y le obligará a reparar el daño causado. Lo dispuesto en los puntos III y IV del artículo L.442-6 será de aplicación a las operaciones mencionadas en los puntos I a III del presente artículo.
CAPITULO III Otras prácticas prohibidas Artículos L443-1 a
L443-3
Artículo L443-1 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
El plazo de pago, a todo productor, revendedor o proveedor de servicios, bajo pena de multa de 75.000 euros, no podrá ser superior:
1º A los treinta días siguientes a la finalización de los diez días de entrega para las compras de productos de alimentación perecederos y de carnes congeladas o ultracongeladas, de pescados ultracongelados, de platos precocinados y de conservas fabricadas a partir de productos de alimentación perecederos, exceptuando las compras de productos de temporada en el marco de contratos llamados de cultivo, citados en los artículos L.326-1 a L.326-3 del Código Rural;
2º A los veinte días siguientes al día de la entrega para las compras de ganado vivo destinado al consumo y carnes frescas derivadas;
3º A los treinta días siguientes después de finalizar el mes de entrega para las compras de bebidas alcohólicas sujetas a los derechos de consumo previstos en el artículo 403 del Código General de Impuestos;
4º A falta de acuerdos interprofesionales concluidos en aplicación del libro VI del Código Rural y siendo obligatorios por vía reglamentaria para todos los operadores en el conjunto del territorio metropolitano en lo referente a los plazos de pago, a los setenta y cinco días siguientes al día de entrega para las compras de bebidas alcohólicas sujetas a derechos de circulación previstos en el artículo 438 del mismo Código.
Artículo L443-3 I. - Las personas jurídicas podrán ser declaradas responsables penalmente de las infracciones contempladas en
los puntos I y II del artículo L.433-2, en las condiciones previstas por el artículo 121-2 del Código Penal. II. - Las penas a las que se someterán las personas jurídicas serán: 1º La multa en las condiciones previstas por el artículo 131-38 del Código Penal; 2º Las mencionadas en los apartados 2º, 3º, 4º, 5º, 6º y 9º del artículo 131-39 de dicho Código. III. - La prohibición mencionada en el apartado 2º del artículo 131-39 del Código Penal se aplicará a la actividad en
el ejercicio o en ocasión de cuyo ejercicio se ha cometido la infracción.
TITULO V DE LOS PODERES DE INVESTIGACIÓN Artículos L450-1 a
L450-8
Artículo L450-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 81 I Diario Oficial de 16 de mayo de 2001)
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CÓDIGO DE COMERCIO (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 2 Diario Oficial de 5 de noviembre de 2004)
Los funcionarios habilitados para ello por el Ministro de Economía podrán proceder a realizar las investigaciones necesarias para la aplicación de las disposiciones del presente libro.
Los ponentes del Consejo de la Competencia dispondrán de los mismos poderes en los asuntos para los que dicho Consejo fuera competente.
En el caso de que las investigaciones se realizaran en nombre y por cuenta de una autoridad de la competencia de otro Estado miembro de acuerdo con lo dispuesto en el apartado 1 del artículo 22 del Reglamento nº 1/2003 del Consejo, relativo a la aplicación de las normas sobre competencia previstas en los artículos 81 y 82 del Tratado Constitutivo de la Comunidad Europea, el Ministro de Economía podrá autorizar que agentes de esta autoridad en materia de competencia ayuden en sus investigaciones a los funcionarios habilitados mencionados en el apartado primero o a los ponentes mencionados en el apartado segundo. Las modalidades de esta ayuda serán establecidas por decreto adoptado en Conseil d'Etat.
Los funcionarios de la categoría A del Ministerio de Economía, especialmente habilitados para ello por el Ministro de Justicia, previa propuesta del Ministro de Economía, podrán recibir de los jueces de instrucción comisiones rogatorias.
Los funcionarios habilitados mencionados en el presente artículo podrán ejercer los poderes de investigación que posean en virtud del presente artículo y de los artículos siguientes, en el conjunto del territorio nacional.
Artículo L450-2 Las investigaciones darán lugar al levantamiento de actas y, en su caso, de informes. Dichas actas serán transmitidas a la autoridad competente. Se dejará un duplicado a las partes interesadas. Se
presumirán ciertos, salvo prueba en contrario.
Artículo L450-3 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 76 Diario Oficial de 16 de mayo de 2001)
Los investigadores podrán acceder a cualquier local, propiedad o medio de transporte de uso profesional, solicitar el acceso a los libros, facturas o cualquier otro documento profesional y obtener o realizar copias por cualquier medio y en cualquier soporte técnico, obtener sus informaciones y comprobantes solicitándolos por medio de una citación o in situ.
Podrán solicitar a la autoridad de la que dependan que nombre a un perito para proceder a cualquier peritaje contradictorio que fuera necesaria.
Artículo L450-4 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 77 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 3 Diario Oficial de 5 de noviembre de 2004)
Los investigadores solamente podrán realizar las inspecciones necesarias y proceder a la incautación de documentos o cualquier soporte de información, en el caso de que dichas investigaciones sean solicitadas por la Comunidad Europea o por el ponente general del Consejo de la Competencia, previa propuesta del ponente y tras autorización judicial concedida por resolución del juge des libertés et de la détention del Tribunal de grande instance en cuya circunscripción estén situados los lugares que haya que inspeccionar. Podrán asimismo, en las mismas condiciones, proceder al precintado de locales comerciales, documentos y soportes de información mientras duren las inspecciones en dichos locales. Cuando estos lugares estén situados en la circunscripción de varias jurisdicciones y haya que llevar a cabo una acción simultánea en cada uno de ellos, uno de los presidentes (1) competentes podrá emitir una única resolución.
El Juez deberá comprobar que la solicitud de autorización que le hubieran remitido esté motivada; esta demanda deberá incluir todos los elementos de información en posesión del solicitante que pudieran justificar la inspección. Cuando la inspección esté orientada a permitir la constatación de infracciones a las disposiciones del Libro IV del presente Código que se estén cometiendo, la solicitud de autorización podrá contener solamente los indicios que permitan presuponer, en este caso, la existencia de prácticas de las que se busca la prueba.
La inspección y la incautación se efectuarán bajo la autoridad y el control del juez que las haya autorizado. Éste designará a uno o varios oficiales de la policía judicial encargados de asistir a estas operaciones, de prestar su apoyo procediendo, en su caso, a las requisas necesarias y de mantenerle informado de su desarrollo. Cuando tengan lugar fuera de la jurisdicción de su Tribunal de grande instance, entregará una comisión rogatoria para ejercer este control al presidente (1) del Tribunal de grande instance en cuya circunscripción se efectúe la inspección.
El Juez podrá desplazarse a los locales durante la intervención. En cualquier momento podrá decidir la suspensión o el cese de la inspección.
La resolución será notificada verbalmente y en el lugar y momento de la inspección al ocupante de los locales o a su representante quien recibirá copia íntegra contra recibo o anotación en el acta. En ausencia del ocupante de los locales o de su representante, la resolución será notificada tras la inspección, por carta certificada con acuse de recibo. La notificación se considerará realizada en la fecha de recepción que figure en el aviso.
La resolución mencionada en el párrafo primero del presente artículo sólo será susceptible de un recurso de casación según las normas previstas por el Código de Proceso Penal. Este recurso no tendrá efecto suspensivo.
La inspección, que no podrá empezar antes de las seis horas ni después de las veintiuna horas, será efectuada en presencia del ocupante de los locales o de su representante. En caso de imposibilidad, el oficial de policía judicial requerirá la presencia de dos testigos que no sean personas dependientes de su autoridad, de la de la administración de la Dirección General de la Competencia, de Consumo ni de la Represión del Fraude o de la del Consejo de la
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CÓDIGO DE COMERCIO Competencia.
Sólo los investigadores, el ocupante de los locales o su representante así como el oficial de policía judicial y, en su caso, los agentes y demás personas habilitadas por la Comisión Europea podrán tener conocimiento de los objetos y documentos antes de su incautación.
Los inventarios y los precintos judiciales se realizarán según el artículo 56 del Código de Proceso Penal. Los originales del atestado y del inventario serán transmitidos al juez que haya ordenado la inspección. Los objetos y documentos incautados serán restituidos al ocupante de los locales, en un plazo máximo de seis
meses a partir de la fecha en la que la resolución del Consejo de la Competencia sea definitiva. El ocupante del local será requerido, por carta certificada con acuse de recibo, para venir a buscarlos, dentro de un plazo de dos meses. Tras la expiración de este plazo y si no hubiese emprendido diligencias por su parte, los objetos y documentos le serán restituidos con los gastos a su costa.
El desarrollo de las operaciones de inspección o incautación podrá ser objeto de un recurso ante el Juez que lo haya autorizado en un plazo de dos meses que empezará a contar, para las personas que ocupen los locales donde se hayan desarrollado estas operaciones, desde la notificación de la resolución que las haya autorizado y, desde que hayan tenido conocimiento de la existencia de estas operaciones y, como máximo, desde la notificación de los motivos prevista en el artículo L.463-2 para las demás personas que entren ulteriormente a ser parte en la causa debido a piezas embargadas en el curso de estas operaciones. El Juez se pronunciará sobre este recurso por vía de resolución, que sólo será susceptible de un recurso de casación según las normas previstas en el Código de Proceso Penal. Este recurso no tendrá efecto suspensivo.
(1) Nota: El artículo 49 X 1º y 2º de la Ley nº 2000-516 de 15 de junio de 2000, con entrada en vigor el 16 de junio de 2002, modificó el artículo 48 de la disposición nº 86-1243 de 1 de diciembre de 1986, sustituyendo la palabra "presidente", por las palabras "juge des libertés et de la détention". Este artículo 48 fue derogado y codificado por la disposición nº 2000-912 de 18 de septiembre de 2000, y se convirtió en el artículo L. 450-4 del Código de Comercio.
Artículo L450-5 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 78 Diario Oficial de 16 de mayo de 2001)
El ponente general del Consejo de la Competencia será informado inmediatamente del inicio y del resultado de las investigaciones mencionadas en el artículo L.450-4 cuando hayan sido diligenciadas por iniciativa del Ministro de Economía y se refieran a hechos que puedan corresponder a lo dispuesto por los artículos L.420-1 y L.4202.
Podrá proponer al Consejo que intervenga de oficio.
Artículo L450-6 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 80 Diario Oficial de 16 de mayo de 2001)
El ponente general designará, para el examen de cada asunto, a uno o varios ponentes. A petición de éste, la autoridad de la que dependen los agentes citados en el artículo L.450-1 designará a los investigadores y ordenará proceder inmediatamente a toda investigación que el instructor considere útil. Éste último definirá la orientación de la investigación y será mantenido informado de su desarrollo.
Un decreto precisará las condiciones en las que, a petición justificada del presidente del Consejo de la Competencia, la autoridad de la que dependen los agentes citados en el artículo L.450-1 pondrá a disposición del ponente general del Consejo de la Competencia, por un período determinado, investigadores para proceder a ciertas indagaciones, según las orientaciones definidas por los ponentes
Artículo L450-7 Los investigadores podrán acceder a cualquier documento o elemento de información en posesión de los servicios
y establecimientos del Estado y de otras entidades públicas, sin que se les oponga el secreto profesional.
Artículo L450-8 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Será castigado con seis meses de prisión y 7.500 euros de multa el que se opusiere, de cualquier modo, al ejercicio de las funciones de los agentes designados en el artículo L.450-1 y los ponentes del Consejo de la Competencia en aplicación del presente libro.
TITULO VI DEL CONSEJO DE LA COMPETENCIA Artículos L461-1 a
L464-8
CAPITULO I De la organización Artículos L461-1 a
L461-3
Artículo L461-1 I.- El Consejo de la Competencia estará compuesto de diecisiete miembros nombrados por un período de seis años
por decreto adoptado tras el informe del Ministro de Economía. II. - Se compondrá de: 1º Ocho miembros o antiguos miembros del Conseil d'Etat, de la Cour de Cassation, de la Cour des comptes o de
las otras jurisdicciones administrativas o judiciales;
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CÓDIGO DE COMERCIO 2º Cuatro personalidades elegidas en razón de su capacidad en materia económica o en materia de competencia y
consumo; 3º Cinco personalidades que ejerzan o hayan ejercido sus actividades en los sectores de la producción, de la
distribución, de la artesanía, de los servicios o profesiones liberales. III. - El presidente y los tres vicepresidentes serán nombrados, tres de ellos, entre los miembros y antiguos
miembros del Conseil d'Etat, de la Cour de Cassation o de la Cour des comptes y el restante, de entre las categorías de las personalidades mencionadas en los apartados 2º y 3º del punto II.
IV. - Las cuatro personalidades previstas en el apartado 2º del punto II serán elegidas de entre una lista de ocho nombres presentada por los ocho miembros previstos en el apartado 1º del punto II.
V.- El mandato de los miembros del Consejo de la Competencia será renovable.
Artículo L461-2 El presidente y los vicepresidentes ejercerán sus funciones con dedicación exclusiva. Estarán sometidos a las
normas de incompatibilidad previstas para los empleos públicos. Será declarado dimisionario de oficio por el Ministro cualquier miembro del Consejo que no haya participado sin un
motivo justificado en tres sesiones consecutivas o que no cumpliera las obligaciones previstas en los dos párrafos que siguen. Todo miembro del Consejo tendrá que informar al presidente de los intereses que posea o que acabe de adquirir y de las funciones que ejerza en una actividad económica.
Ningún miembro del Consejo podrá deliberar en un asunto en el que tenga interés o si representara o hubiera representado a una de las partes interesadas.
El Comisario del Gobierno ante el Consejo será nombrado por el Ministro de Economía.
Artículo L.461-3 (Ley nº 2001-420 de 15 de mayo de 2001 art. 65 Diario Oficial de 16 de mayo de 2001) (Ley nº 2001-1276 de 28 de diciembre de 2001 art. 85 Ley de finanzas para 2001 Diario Oficial de 29 de diciembre de 2001)
El Consejo podrá celebrar sesión en forma plenaria, por secciones, o en comisión permanente. La comisión permanente estará compuesta del presidente y de tres vicepresidentes.
En caso de empate en la votación, el presidente tendrá voto de calidad. El ponente general, el o los ponentes generales adjuntos y los ponentes permanentes serán nombrados a
propuesta del presidente por orden del Ministro de Economía. Los otros ponentes serán nombrados por el presidente. El ponente general podrá delegar en uno o varios ponentes generales adjuntos toda o una parte de las atribuciones
que ostente en virtud del Libro IV del presente Código. Los fondos atribuidos al Consejo de la Competencia para su funcionamiento quedarán inscritos en el presupuesto
del Ministerio de Economía. No serán aplicables a su gestión las disposiciones de la Ley de 10 de agosto de 1922 relativa a la organización del control de los gastos efectuados.
El presidente será el que ordene los ingresos y los gastos del Consejo.
CAPITULO II De las atribuciones Artículos L462-1 a
L462-9
Artículo L462-1 El Consejo de la Competencia podrá ser consultado por las comisiones parlamentarias sobre las proposiciones de
ley así como sobre toda cuestión que afecte a la competencia. Emitirá su dictamen sobre cualquier cuestión de competencia a petición del Gobierno. Podrá igualmente emitir su
dictamen sobre las mismas cuestiones a petición de las entidades territoriales, de las organizaciones profesionales y sindicales, de las organizaciones de consumidores autorizadas, de las Cámaras de agricultura, de las Cámaras profesionales de Artesanía o Cámaras de comercio e industria, en lo referente a los intereses de los que éstas se encarguen.
Artículo L462-2 El Consejo será obligatoriamente consultado por el Gobierno sobre todo proyecto de texto reglamentario que
instituya un régimen nuevo que tenga directamente como efecto: 1º Someter el ejercicio de una profesión o el acceso a un mercado a restricciones cuantitativas; 2º Establecer derechos exclusivos en determinadas zonas; 3º Imponer prácticas uniformes en materia de precios o de condiciones de venta.
Artículo L462-3 (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 4 Diario Oficial de 5 de noviembre de 2004)
El Consejo podrá ser consultado por los órganos judiciales sobre las prácticas contrarias a la libre competencia definidas en los artículos L.420-1, L.420-2 y L.420-5, así como en los artículos 81 y 82 del Tratado Constitutivo de la Comunidad Europea y detectadas en los asuntos sobre los que hayan entrado a conocer. Sólo podrá emitir un dictamen tras un procedimiento contradictorio. Sin embargo, si hubiese obtenido informaciones a lo largo de un procedimiento anterior, podrá emitir su dictamen sin tener que iniciar el procedimiento previsto en el presente texto.
La prescripción quedará en suspenso, en su caso, por la consulta con el Consejo. El dictamen del Consejo podrá ser publicado tras el sobreseimiento o la resolución.
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CÓDIGO DE COMERCIO Artículo L462-4
El Consejo podrá ser consultado por el Ministro de Economía sobre todo proyecto de concentración o toda concentración que pudiera perjudicar la libre competencia en las condiciones previstas en el título III anterior.
Artículo L462-5 El Consejo de la competencia podrá conocer a instancia del Ministro de Economía por motivo de cualquier práctica
mencionada en los artículos L.420-1, L.420-2 y L.420-5. Podrá ser competente de oficio o a instancia de las empresas u organismos citados en el párrafo segundo del artículo L.462-1, para cualquier asunto relacionado con los intereses de los que se encargue.
Artículo L462-6 (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 5 Diario Oficial de 5 de noviembre de 2004)
El Consejo de la Competencia examinará si las prácticas en las que hubiera entrado a conocer se encuentran dentro del ámbito de los artículos L.420-1, L.420-2 o L.420-5 o pudieran encontrarse motivados por aplicación del artículo L.420-4. El citado Consejo dictará, llegado el caso, sanciones y requerimientos.
Cuando los hechos le parezcan adecuados para motivar la aplicación del artículo L.420-6, remitirá el informe al Fiscal de la República. Esta transmisión interrumpirá la prescripción de la acción pública.
La prescripción se interrumpirá igualmente cuando los hechos mencionados en la presentación de la demanda sean objeto de un acto orientado a su investigación, su constatación o su sanción por la Comisión Europea o por una autoridad en materia de competencia de otro Estado miembro de la Comunidad Europea.
Artículo L462-7 (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 6 Diario Oficial de 5 de noviembre de 2004)
El Consejo no podrá entrar a conocer por hechos anteriores a los cinco años si no se hubiese realizado ningún acto orientado a su investigación, su constatación o su sanción.
Artículo L462-8 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 74 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 7 Diario Oficial de 5 de noviembre de 2004)
El Consejo de la Competencia podrá declarar inadmisible la demanda, a través de resolución motivada, por falta de interés o de cualificación para actuar del autor de ésta, o si los hechos estuvieran prescritos en el sentido del artículo L.462-7, o si estimase que los hechos invocados no entran en el ámbito de su competencia.
Podrá también rechazar la demanda por resolución motivada cuando estime que los hechos invocados no están suficientemente probados.
Podrá también rechazar la demanda, en las mismas condiciones, cuando tenga información de que otra autoridad nacional en materia de competencia de un Estado miembro de la Comunidad Europea o la Comisión Europea ya trató los mismos hechos regidos por las disposiciones 81 y 82 del Tratado Constitutivo de la Comunidad Europea.
Podrá también rechazar la demanda, en las mismas condiciones, o suspender el procedimiento, cuando tenga información de que otra autoridad nacional en materia de competencia de un Estado miembro de la Comunidad Europea o la Comisión Europea está tratando los mismos hechos regidos por las disposiciones 81 y 82 del Tratado Constitutivo de la Comunidad Europea. Cuando esta información llegue a conocimiento del ponente en la fase de la instrucción, el ponente general podrá suspender su desarrollo.
El Consejo de la Competencia podrá decidir igualmente, en las mismas condiciones, archivar un asunto del que hubiera conocido de oficio.
Se levantará acta de los desistimientos de las partes o de la declinaciones de competencia efectuadas por la Comisión Europea, por decisión del presidente del Consejo de la Competencia o de un vicepresidente delegado por él.
Artículo L462-9 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 83 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 8 Diario Oficial de 5 de noviembre de 2004)
I. - El Consejo de la Competencia podrá, en lo que afecte a sus competencias y tras previa información del Ministro de Economía, comunicar las informaciones o los documentos que posea o haya reunido, a la Comisión de las Comunidades Europeas o a las autoridades de los otros Estados que ejerzan competencias análogas, si lo solicitaren, siempre que haya reciprocidad y a condición de que la autoridad extranjera competente esté sujeta al secreto profesional con las mismas garantías que en Francia.
El Consejo de la Competencia podrá, en las mismas condiciones, con los mismos procedimientos y bajo las mismas sanciones que las previstas para el cumplimiento de sus funciones, dirigir o pedir al Ministro de Economía que dirija investigaciones, a petición de autoridades extranjeras que ejerzan competencias análogas, sin perjuicio de que haya reciprocidad.
La obligación del secreto profesional no será obstáculo para la presentación por parte de las autoridades en materia de competencia de las informaciones o documentos que posean o hayan obtenido, ante la Comisión de las Comunidades Europeas y a las autoridades de los otros Estados que ejerzan competencias análogas, por petición de éstos, y sujetas a las mismas obligaciones de secreto profesional.
La ayuda solicitada por una autoridad extranjera que ejerza competencias análogas en la forma de llevar a cabo las investigaciones o la transmisión de informaciones poseídas o reunidas por el Consejo de la Competencia será denegada por éste cuando la ejecución de la demanda pudiera vulnerar la soberanía, la seguridad, los intereses económicos esenciales o el orden público francés o cuando ya se hubiera iniciado un procedimiento penal en Francia
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CÓDIGO DE COMERCIO basado en los mismos hechos y contra las mismas personas, o cuando éstas hubieran sido ya sancionadas con una resolución definitiva por los mismos hechos.
Las autoridades en materia de competencia, en lo que se refiere a sus atribuciones respectivas, podrán utilizar informaciones o documentos que les hayan sido transmitidos en las mismas condiciones por la Comisión de las Comunidades Europeas o por las autoridades de los otros Estados miembros que ejerzan competencias análogas.
El Consejo, para la aplicación del presente artículo, podrá concluir acuerdos que determinen sus relaciones con las autoridades de los otros Estados que ejerzan competencias análogas. Estos acuerdos serán aprobados por el Consejo en las condiciones previstas en el artículo L.463-7. Serán publicadas en el Diario Oficial.
II. - En la aplicación de las normas sobre competencia previstas en los artículos 81 y 82 del Tratado Constitutivo de la Comunidad Europea, las autoridades en materia de competencia aplicarán las disposiciones del Reglamento n° 1/2003 del Consejo relativo a la aplicación de las normas sobre competencia previstas en los artículos 81 y 82 del Tratado Constitutivo de la Comunidad Europea, con excepción de lo dispuesto en los cinco primeros apartados del punto I del presente artículo.
Para la aplicación de lo dispuesto en el apartado 4 del artículo 11 de este Reglamento, el Consejo de la Competencia remitirá a la Comisión Europea un resumen del asunto, así como un documento que exponga la orientación prevista, que puede ser la notificación de los motivos o el informe mencionados en el artículo L. 463-2. Podrá poner estos mismos documentos a disposición de las demás autoridades en materia de competencia de los Estados miembros de la Comunidad Europea.
CAPITULO III Del procedimiento Artículos L463-1 a
L463-8
Artículo L463-1 (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 9 Diario Oficial de 5 de noviembre de 2004)
La instrucción y el procedimiento ante el Consejo de la Competencia se realizarán de forma totalmente contradictoria, sin perjuicio de las disposiciones previstas en el artículo L. 463-4.
Artículo L463-2 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 68 I y II Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 9 Diario Oficial de 5 de noviembre de 2004)
Sin perjuicio de las medidas previstas en el artículo L.464-1 el ponente general notificará los motivos a los interesados así como al Comisario del Gobierno, que podrán consultar el expediente sin perjuicio de lo dispuesto en el artículo L. 463 y presentar sus observaciones en un plazo de dos meses.
El informe será entonces notificado a las partes, al Comisario del Gobierno y a los ministros interesados. Será acompañado de los documentos sobre los que se basará el ponente y eventualmente de las observaciones hechas por los interesados.
Las partes tendrán un plazo de dos meses para presentar en respuesta una memoria que podrá ser consultada por las personas citadas en el párrafo anterior durante los quince días anteriores a la sesión.
Cuando circunstancias excepcionales lo justifiquen, el presidente del Consejo podrá, por Disposición no susceptible de recurso, conceder un plazo suplementario de un mes para la consulta del expediente y la presentación de las observaciones de las partes.
Artículo L463-3 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 69 Diario Oficial de 16 de mayo de 2001)
El presidente del Consejo de la Competencia o un vicepresidente delegado por él podrá, tras la notificación de los motivos a las partes interesadas, decidir que el asunto sea juzgado por el Consejo sin previa realización de un informe. Esta decisión será notificada a las partes.
Artículo L463-4 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 70 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 9 III Diario Oficial de 5 de noviembre de 2004)
Salvo en el caso en que la entrega o consulta de dichos documentos fuera necesaria para el procedimiento o para el ejercicio de los derechos de la o las partes encausadas, el presidente del Consejo de la Competencia, o un vicepresidente delegado por éste, podrá rechazar la entrega o la consulta de los documentos o de determinados elementos de éstos que revelen algún secreto de los negocios. Se retirarán del expediente los documentos en cuestión o se ocultarán algunas de sus anotaciones.
En el caso en que la entrega o consulta de dichos documentos sea necesarias para el procedimiento o el ejercicio de los derechos de alguna de las partes, a pesar de que revelen algún secreto de los negocios, se adjuntarán al expediente como anexo confidencial y sólo se remitirán al Comisario del Gobierno y a la o las partes encausadas que los necesiten para el ejercicio de sus derechos.
Las condiciones de aplicación del presente artículo serán determinadas, en caso de necesidad, por un decreto adoptado en Conseil d'Etat.
Artículo L463-5 Las instancias de instrucción y de decisión podrán presentar al Consejo de la Competencia, a petición de éste, los
sumarios o informes de la investigación que hayan tenido relación directa con los hechos por los que haya entrado a
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CÓDIGO DE COMERCIO conocer el Consejo.
Artículo L463-6 Se castigará con las penas previstas en el artículo 226-13 del Código Penal, la divulgación por una de las partes de
las informaciones relativas a la otra parte o a un tercero, de las que no podría tener conocimiento si no hubiera sido por las presentaciones o consultas a las que se ha procedido.
Artículo L463-7 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Las sesiones del Consejo de la Competencia no serán públicas. Únicamente las partes y el Comisario del Gobierno podrán asistir a ellas. Las partes podrán solicitar ser oídas por el Consejo y asistir o hacerse representar.
El Consejo de la Competencia podrá oír a toda persona cuyas declaraciones le parezcan susceptibles de contribuir a su información.
El ponente general, el o los ponentes generales adjuntos y el Comisario del Gobierno podrán presentar observaciones.
El ponente general, el o los ponentes generales adjuntos y el ponente asistirán a la deliberación sin derecho a voto, salvo cuando el Consejo decida sobre prácticas que le hayan sido sometidas en aplicación del artículo L.462-5.
Artículo L463-8 (Introducido por la Ley nº 2001-420 de 15 de mayo de 2001 Artículo 71 Diario Oficial de 16 de mayo de 2001)
El ponente general podrá decidir la actuación de peritos, en caso de petición formulada en cualquier momento de la instrucción por el ponente o por una parte. No se admitirá ningún recurso contra esta resolución.
La misión y el plazo dado al perito serán precisados en la resolución que lo nombre. El desarrollo de las operaciones de peritaje se hará de modo contradictorio.
El pago del peritaje correrá a cargo de la parte que la haya solicitado o del Consejo en el caso de que fuera ordenada a petición del ponente. Sin embargo, el Consejo podrá, en su resolución sobre el fondo, imputar el pago del gasto definitivo a la o a las partes sancionadas en las proporciones que éste determine.
CAPITULO IV De las resoluciones y de los recursos Artículos L464-1 a
L464-8
Artículo L464-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 72 Diario Oficial de 16 de mayo de 2001)
El Consejo de la Competencia podrá, tras haber oído a las partes encausadas y al Comisario del Gobierno, tomar las medidas cautelares que le fueran solicitadas por el Ministro de Economía, por las personas mencionadas en el párrafo segundo del artículo L.462-1 o por las empresas.
Estas medidas sólo podrán tomarse si la práctica denunciada vulnerase gravemente y de forma inmediata a la economía general, a la del sector interesado, al interés de los consumidores o a la empresa denunciante.
Podrán conllevar la suspensión de la práctica concernida así como un requerimiento a las partes para volver al estado anterior. Deberán limitarse a lo estrictamente necesario para hacer frente a la situación de urgencia.
Las medidas cautelares serán publicadas en el Boletín Oficial de la Competencia, del Consumo y de la Represión de Fraudes.
Artículo L464-2 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 73 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 10 Diario Oficial de 5 de noviembre de 2004)
I.- El Consejo de la Competencia podrá exigir a los interesados que pongan fin a las prácticas contrarias a la libre competencia en un determinado plazo o imponer condiciones particulares. También podrá aceptar compromisos propuestos por las empresas u organismos para poner fin a las prácticas contrarias a la libre competencia.
Podrá imponer una sanción pecuniaria aplicable inmediatamente, o ulteriormente en el caso de que no ejecutase los requerimientos, o en caso de incumplimiento de los compromisos contraídos.
Las sanciones pecuniarias serán proporcionales a la gravedad de los hechos imputados, a la importancia del daño causado a la economía y a la situación del organismo o de la empresa sancionada o del grupo al que la empresa pertenezca y a la eventual reiteración de prácticas prohibidas por el presente título. Serán determinadas individualmente para cada empresa u organismo sancionado y de un modo justificado para cada sanción.
Si el autor de la infracción no fuese una empresa, el importe máximo de la sanción será de 3 millones de euros. El importe máximo de la sanción para una empresa será el 10% del importe de la facturación mundial más elevada sin impuestos, realizada en el transcurso de uno de los ejercicios cerrados desde el ejercicio anterior a aquél en el transcurso del cuál se hayan producido las prácticas en cuestión. Si las cuentas de la empresa concernida hubieran sido consolidadas o combinadas según los textos aplicables a su forma social, la facturación tenida en cuenta será la que figure en las cuentas consolidadas o combinadas de la empresa consolidante o combinante.
El Consejo de la Competencia podrá ordenar la publicación, la difusión o la publicación mediante edictos de su resolución o de un extracto de ésta según los requisitos formales especificados por él. Podrá igualmente ordenar la inserción de la resolución o del extracto de ésta en el informe sobre las operaciones del ejercicio, realizado por los gerentes, el consejo de administración o el directorio de la empresa. Los gastos correrán por cuenta de la persona interesada.
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CÓDIGO DE COMERCIO II. - El Consejo de la Competencia podrá imponer multas coercitivas a los interesados, hasta el límite del 5% de la
cifra de negocios diaria media, por día de retraso a partir de la fecha fijada para obligarles a: a) Ejecutar una decisión con objeto de poner fin a las prácticas contrarias a la libre competencia, ejecutar una
decisión que imponga condiciones particulares o cumplir una decisión que conlleve un compromiso obligatorio en virtud del punto I;
b) Observar las medidas dictadas de acuerdo con lo dispuesto en el artículo L. 464-1. La cifra de negocios tenida en cuenta será calculada basándose en las cuentas de la empresa relativas al último
ejercicio cerrado en el momento de la fecha de la decisión. La multa coercitiva será liquidada por el Consejo, quien deberá fijar su importe definitivo.
III. - Cuando un organismo o una empresa no impugne los motivos que le hubieran sido notificados y se comprometa a modificar su actitud en el futuro, el ponente general podrá proponer al Consejo de la Competencia, que tras escuchar a las partes y al Comisario del Gobierno sin realizar previamente un informe, que dicte la sanción pecuniaria prevista en el punto I teniendo en cuenta la ausencia de impugnación. En ese caso, el importe máximo de la sanción se reducirá a la mitad.
IV. - Se podrá otorgar una exoneración total o parcial de las sanciones pecuniarias a una empresa o a un organismo que, junto con otros, haya realizado la práctica prohibida por las disposiciones del artículo L.420-1, si hubiese contribuido a descubrir la práctica prohibida y a identificar a sus autores, aportando elementos de información que ni el Consejo ni la Administración tuvieran anteriormente. A consecuencia de esta gestión de la empresa o del organismo, el Consejo de la Competencia, a petición del ponente general o del Ministro de Economía, emitirá un dictamen de clemencia, que precisará las condiciones a las que se subordinará dicha exoneración, después de que el Comisario del Gobierno y la empresa o el organismo en cuestión hayan presentado sus alegaciones. Este dictamen será transmitido a la empresa o al organismo y al Ministro, y no será publicado. En el momento de la resolución dictada en aplicación del punto I del presente artículo, el Consejo podrá, si las condiciones definidas en el dictamen de clemencia hubieran sido respetadas, conceder una exoneración de las sanciones pecuniarias proporcional a la contribución aportada para la determinación de la infracción.
Artículo L464-3 (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 11 Diario Oficial de 5 de noviembre de 2004)
Si las medidas, requerimientos o compromisos previstos en los artículos L.464-1 y L.464-2 no fueran respetados, el Consejo podrá imponer una sanción pecuniaria en los límites fijados en el artículo L.464-2.
Artículo L464-4 (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 12 Diario Oficial de 5 de noviembre de 2004)
Las sanciones pecuniarias y multas coercitivas serán cobradas como los créditos del Estado que no sean relativos al impuesto y al patrimonio.
Artículo L464-5 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 69 Diario Oficial de 16 de mayo de 2001)
El Consejo, cuando resuelva según el procedimiento simplificado previsto en el artículo L.463-3 podrá decidir las medidas previstas en el punto I del artículo L.464-2. Sin embargo la sanción pecuniaria no podrá exceder de 750.000 Euros para cada uno de los autores de las prácticas prohibidas.
Artículo L464-6 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 75 Diario Oficial de 16 de mayo de 2001) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 24 Diario Oficial de 27 de marzo de 2004)
Cuando no se detecte ninguna práctica que vulnere la libre competencia en el mercado, el Consejo de la Competencia podrá decidir, después de que el autor de la demanda y el Comisario del Gobierno hayan consultado el expediente y presentado sus observaciones, que no ha lugar a proseguir el procedimiento. Dicha decisión deberá ser motivada.
Artículo L464-6-1 (Introducido por la Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 24 II Diario Oficial de 27 de marzo de 2004)
El Consejo de la Competencia podrá decidir igualmente, en las condiciones previstas en el artículo L. 464-6, que no procede continuar el procedimiento cuando las prácticas mencionadas en el artículo L. 420-1 no son relativas a contratos celebrados en aplicación del Código de Contratos Públicos y cuando la cuota de mercado total poseída por las empresas u organismos partes en el acuerdo o en la práctica en cuestión no sobrepase:
a) bien, el 10 % en uno de los mercados afectados por el acuerdo o la práctica, cuando se trate de un acuerdo o una práctica entre empresas u organismos que son competidores, existentes o potenciales en uno de los mercados en cuestión;
a) bien, el 15 % en uno de los mercados afectados por el acuerdo o la práctica, cuando se trate de un acuerdo o una práctica entre empresas u organismos que son competidores, existentes o potenciales en uno de los mercados en cuestión;
Artículo L464-6-2 (Introducido por la Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 24 II Diario Oficial de 27 de marzo de 2004)
No obstante, lo dispuesto en el artículo L. 464-6-1 no se aplicará a los acuerdos y prácticas que incluyan una de las
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CÓDIGO DE COMERCIO restricciones de competencia siguientes:
a) Las restricciones que, directa o indirectamente, aislada o conjuntamente con otros factores sobre los cuales pueden influir las partes, tengan por objeto la determinación de un precio de venta, la limitación de la producción o de las ventas, el reparto de los mercados o de los clientes;
b) Las restricciones a las ventas no solicitadas y realizadas por un distribuidor fuera de su territorio contractual en beneficio de usuarios finales;
c) Las restricciones a las ventas realizadas por los miembros de una red de distribución selectiva que operan como minoristas en el mercado, independientemente de la posibilidad de prohibirle a un miembro del sistema de distribución que opere a partir de un lugar de establecimiento no autorizado;
d) Las restricciones a los suministros cruzados entre distribuidores pertenecientes a un sistema de distribución selectiva, incluso entre distribuidores que operen en distintos niveles comerciales.
Artículo L464-7 La decisión del consejo, basada en el artículo L.464-1, podrá ser objeto de un recurso de nulidad o de revocación
parcial interpuesto por las partes encausadas y el Comisario del Gobierno ante la Cour d'appel de París, como máximo en los diez días siguientes a su notificación. El Tribunal deberá decidir en un mes sobre este recurso.
El recurso no tendrá efecto suspensivo. Sin embargo, el primer presidente de la Cour d'appel de París podrá decretar el aplazamiento de la ejecución de las medidas cautelares si éstas fueran susceptibles de producir consecuencias manifiestamente excesivas o si se hubiesen producido hechos nuevos de una excepcional gravedad con posterioridad a su notificación.
Artículo L464-8 (Ley nº 2001-1168 de 11 de diciembre de 2001 Artículo 33 IV Diario Oficial de 12 de diciembre de 2001) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 24 III Diario Oficial de 27 de marzo de 2004) (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 13 Diario Oficial de 5 de noviembre de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 Artículo 83 II Diario Oficial de 10 de diciembre de 2004)
Las resoluciones del Consejo de la Competencia mencionadas en los artículos L.462-8, L.464-1, L.464-2, L.464-3, L.464-5 y L.464-6 serán notificadas a las partes encausadas y al Ministro de Economía, que podrán, en el plazo de un mes, interponer un recurso de nulidad o de revocación parcial ante la Cour d'appel de París.
Las resoluciones serán publicadas en el Boletín Oficial de la Competencia, del Consumo y de la Represión del Fraude. El Ministro de Economía velará por su ejecución. Las decisiones podrán prever una publicación limitada ara tener en cuenta el interés legítimo de las partes de que sus secretos no sean divulgados.
El recurso no tendrá efecto suspensivo. Sin embargo, el primer presidente de la Cour d'appel de París podrá ordenar que se aplace la ejecución de la resolución si ésta fuera susceptible de producir consecuencias manifiestamente excesivas o si se hubieran producido hechos nuevos de excepcional gravedad con posterioridad a su notificación.
El recurso de casación planteado, en su caso, contra la sentencia del Tribunal se interpondrá en el mes siguiente a su notificación.
El Ministro de Economía podrá en todos los casos interponer un recurso de casación contra la sentencia de la Cour d'appel de París.
TITULO VII DISPOSICIONES DIVERSAS Artículos L470-1 a
L470-8
Artículo L470-1 El órgano jurisdiccional podrá condenar solidariamente a las personas jurídicas al pago de las multas impuestas a
sus dirigentes en virtud de las disposiciones del presente libro y de los textos que se hubieran tomado para su aplicación.
Artículo L470-3 Cuando una persona que hubiera sido condenada, en los dos años anteriores, por una de las infracciones previstas
en los artículos L. 441-2, L. 441-3, L. 441-4, L. 441-5, L. 441-6, L. 442-2, L. 442-3, L. 442-4, L. 442-5 y L. 443-1, cometiera la misma infracción, la sanción podría ser aumentada, como máximo, al doble de lo previsto.
Artículo L470-4 Cuando una persona jurídica que hubiera sido condenada en los dos años anteriores, por una de las infracciones
definidas por los artículos L. 441-3, L. 441-4, L. 441-5, L. 441-6 L. 442-2, L. 442-3 y L. 442-4, cometiera la misma infracción, la sanción máxima que se podría aplicar sería igual a diez veces la prevista para las personas físicas por esta misma infracción.
Artículo L470-5 Para la aplicación de las disposiciones del presente libro, el Ministro de Economía o su representante podrán
presentar sus conclusiones antes las jurisdicciones civiles o penales y exponerlas oralmente en la audiencia. Podrá así mismo presentar los sumarios y los informes de la investigación.
Artículo L470-6 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 84 Diario Oficial de 16 de mayo de 2001)
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CÓDIGO DE COMERCIO (Disposición nº 2004-1173 de 4 de noviembre de 2004 Artículo 14 Diario Oficial de 5 de noviembre de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 Artículo 83 II Diario Oficial de 10 de diciembre de 2004)
Para la aplicación de los artículos 81 al 83 del Tratado Constitutivo de la Comunidad Europea, el Ministro de Economía, y los funcionarios que haya designado o habilitado de acuerdo a las disposiciones del presente libro, por un lado y el Consejo de la Competencia, por el otro, dispondrán de los respectivos poderes que les son reconocidos por los artículos del presente libro y del Reglamento (CE) N° 139/2004 del Consejo, de 20 de enero de 2004, sobre el control de las concentraciones entre empresas y por el Reglamento (CE) n° 1/2003 del Consejo, de 16 de diciembre de 2002 relativo a la aplicación de las normas sobre competencia previstas en los artículos 81 y 82 del Tratado Constitutivo de la Comunidad Europea. Les serán aplicables las normas de procedimiento previstas por estos textos.
Para la aplicación de los artículos 87 y 88 del Tratado Constitutivo de la Comunidad Europea, el Ministro de Economía y los funcionarios que haya designado o habilitado de acuerdo con las disposiciones del artículo L.450-1 dispondrán de los poderes que les son reconocidos por el título V del libro IV.
Artículo L470-7 Las organizaciones profesionales podrán interponer la acción ante la jurisdicción civil o mercantil para los hechos
que perjudiquen directa o indirectamente al interés colectivo de la profesión o del sector que representen, o a la lealtad de la competencia.
Artículo L470-8 Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación del presente libro.
LIBRO V DE LOS EFECTOS DE COMERCIO Y DE LAS GARANTÍAS Artículos L511-1 a
L526-4 TITULO I DE LOS EFECTOS DE COMERCIO Artículos L511-1 a
L512-8
CAPITULO I De la letra de cambio Artículos L511-1 a
L511-81
Sección I De la emisión y de la forma de la letra de cambio Artículos L511-1 a
L511-6
Artículo L511-1 I. - La letra de cambio deberá incluir: 1º La denominación de letra de cambio inserta en el texto mismo del título expresada en el idioma empleado para
su redacción; 2º El mandato puro y simple de pagar una cantidad determinada; 3º El nombre de la persona que deba pagar, denominada librado; 4º La indicación del vencimiento; 5º El lugar en el que se deba efectuar el pago; 6º El nombre de la persona a quien se deba hacer el pago o a cuya orden se deba efectuar; 7º La indicación de la fecha y el lugar en que la letra deba ser librada; 8º La firma de la persona que emite la letra, denominada librador. Se ha de firmar a mano o por cualquier otro
procedimiento no manuscrito. II. - El documento que carezca de alguno de los requisitos que se indican en el punto I no será válido como letra de
cambio, salvo en los casos mencionados en los puntos III al V del presente artículo. III. - La letra de cambio en la que no aparezca indicada la fecha de su vencimiento se considerará pagadera a la
vista. IV. - A falta de indicación especial, el lugar designado junto al nombre del librado se considerará como el lugar de
pago, y, a la vez, como lugar de domicilio del librado. V.- La letra de cambio que no indique el lugar de su emisión se considerará suscrita en el lugar designado junto al
nombre del librador.
Artículo L511-2 La letra de cambio podrá girarse a la orden del propio librador. Podrá ser girada contra el propio librador. Podrá ser girada por cuenta de un tercero. Podrá ser pagadera en el domicilio de un tercero, ya sea en la localidad en que el librado tenga su domicilio o bien
en cualquier otra localidad.
Artículo L511-3 En una letra de cambio pagadera a la vista o a un plazo desde la vista, el librador podrá disponer que la cantidad
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CÓDIGO DE COMERCIO devengue intereses. En cualquier otro tipo de letra de cambio, esta cláusula se tendrá por no puesta.
El tipo de interés fijado deberá indicarse en la letra; en caso contrario, la cláusula correspondiente se tendrá por no puesta.
Los intereses correrán a partir de la fecha indicada en la letra de cambio salvo que se indique alguna fecha.
Artículo L511-4 En la letra de cambio cuyo importe esté escrito a la vez en letras y en números, en caso de que haya contradicción
entre ambos, se considerará válida la cantidad escrita en letras. En la letra de cambio cuyo importe esté escrito varias veces, tanto en letras como en números, si hay diferencias
en el importe indicado en ellas, se considerará como válido el importe de menor valor.
Artículo L511-5 Las letras de cambio libradas por menores serán nulas con respecto a éstos, salvo los derechos respectivos de las
partes, según el artículo 1312 del Código Civil. Si una letra de cambio llevase firmas de personas incapaces de obligarse por letra de cambio, firmas falsas o
firmas de personas imaginarias o firmas que, por cualquier otra razón, no pudieran obligar a las personas que la hayan firmado, o aquellas con cuyo nombre aparezca firmada, las obligaciones de los demás firmantes no dejarán por ello de ser válidas.
Cualquiera que firme en una letra de cambio en representación de una persona de la que no tuviera el poder para actuar, quedará obligado por sí mismo en virtud de la letra y, si hubiese pagado, tendrá los mismos derechos que corresponderían al supuesto representado. Sucederá lo mismo en el caso de que un representante hubiera sobrepasado los poderes que le hubieran sido otorgados.
Artículo L511-6 El librador garantiza la aceptación y el pago. Podrá eximirse de la garantía de la aceptación, pero toda cláusula por la cual se exonere de la garantía del pago se
tendrá por no puesta.
Sección II De la provisión Artículo L511-7
Artículo L511-7 La provisión habrá de efectuarse por el librador o por cuenta de quien se librará la letra de cambio, sin que por ello
el librador por cuenta de otro deje de estar personalmente obligado frente a los endosantes y al tenedor. Habrá provisión si, en la fecha de vencimiento de la letra de cambio, aquél a quien la letra ha sido remitida recibe la
orden de pagar al librador o a aquél a cuya cuenta deba librarse la letra, de una cantidad al menos igual al importe de la letra de cambio.
La propiedad de la provisión será transmitida por derecho a los tenedores sucesivos de la letra de cambio. La aceptación supone la provisión. Establecerá la prueba de ésta con relación a los endosantes. Tanto si hay aceptación como si no, sólo el librador estará obligado a probar, en caso de denegación, que aquellos
a cuenta de quienes la letra ha sido librada tenían provisión en la fecha de vencimiento; en caso contrario, quedará obligado a garantizarla, aunque el protesto haya sido hecho tras los plazos establecidos.
Sección III Del endoso Artículos L511-8 a
L511-14
Artículo L511-8 Toda letra de cambio, aunque no esté expresamente librada a la orden, será transmisible por endoso. Cuando el librador haya incluido en la letra de cambio las palabras "no a la orden", o una expresión equivalente, el
título sólo será transmisible en la forma y con los efectos de una cesión ordinaria. El endoso podrá hacerse incluso en favor del librado, haya aceptado o no, del librador o de cualquier otra persona
obligada. Estas personas podrán endosar de nuevo la letra. El endoso deberá ser puro y simple. Cualquier condición a la que aparezca subordinado se tendrá por no puesta. El endoso parcial será nulo. El endoso "al portador" equivaldrá a un endoso en blanco. El endoso deberá quedar inscrito en la letra de cambio o en una hoja anexa que se llamará suplemento. El endoso
deberá ser firmado por el endosante. Deberá ser firmado por el endosante, bien a mano, o bien por cualquier procedimiento no manuscrito.
El endoso podrá no designar al beneficiario o consistir en un endoso en blanco constituido por la simple firma del endosante. En este último caso, el endoso, para ser válido, deberá ser inscrito en el dorso de la letra de cambio o en el suplemento.
Artículo L511-9 I. - El endoso transmite todos los derechos resultantes de la letra de cambio. II. - Si el endoso está en blanco, el tenedor podrá: 1º Completar el endoso en blanco, sea con su nombre o con el de cualquier otra persona;
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CÓDIGO DE COMERCIO 2º Endosar de nuevo la letra en blanco o designar a otra persona; 3º Entregar la letra a un tercero sin completar el endoso en blanco ni endosarla.
Artículo L511-10 El endosante, salvo cláusula en contrario, garantizará la aceptación y el pago. El endosante podrá prohibir un nuevo endoso. En este caso, no estará obligado a responder frente a las personas
a las que se endosara la letra posteriormente.
Artículo L511-11 El poseedor de una letra de cambio se considerará tenedor legítimo de la misma si justifica su derecho por una
serie ininterrumpida de endosos, aún cuando el último endoso esté en blanco. Los endosos tachados se considerarán a este respecto como no escritos. Cuando un endoso en blanco vaya seguido de otro endoso, el firmante de éste se entenderá que adquirió la letra por el endoso en blanco.
Cuando una persona haya sido desposeída de una letra de cambio por cualquier causa, el tenedor que justifique su derecho del modo indicado en el párrafo anterior no estará obligado a devolver la letra salvo que la haya adquirido de mala fe o si, al adquirirla, hubiese cometido una falta grave.
Artículo L511-12 Las personas que hayan sido demandadas judicialmente en virtud de la letra de cambio no podrán oponer frente al
tenedor las excepciones fundadas en sus relaciones personales con el librador o con los tenedores anteriores, a no ser que el tenedor, al adquirir la letra, haya actuado conscientemente en perjuicio del deudor.
Artículo L511-13 Cuando el endoso contenga la mención "valeur en recouvrement", "pour encaissement", par procuration" ("valor al
cobro", "para cobranza", "por poder") o cualquier otra mención que implique un simple mandato, el tenedor podrá ejercer todos los derechos derivados de la letra de cambio, pero sólo podrá endosar ésta en concepto del apoderamiento.
En ese caso, las personas obligadas no podrán invocar contra el tenedor las excepciones que pudieran alegarse contra el endosante.
La autorización incluida en un endoso de apoderamiento no finalizará por la muerte del mandante ni en caso de que le sobreviniera una incapacidad.
Cuando un endoso contenga la mención "valeur en garantie" ("valor en garantía"), "valeur en gage" ("valor en prenda"), o cualquier otra mención que implique una pignoración, el tenedor podrá ejercer todos los derechos derivados de la letra de cambio, pero un endoso hecho por él sólo vale como un endoso en concepto de apoderamiento.
Las personas obligadas no podrán invocar contra el tenedor las excepciones basadas en sus relaciones personales con el endosante, a no ser que el tenedor, al recibir la letra, haya actuado conscientemente en perjuicio del deudor.
Artículo L511-14 El endoso posterior al vencimiento produce los mismos efectos que un endoso anterior. Sin embargo, el endoso
posterior al protesto por falta de pago, o realizado tras el vencimiento del plazo fijado para levantar el protesto sólo producirá los efectos de una cesión ordinaria.
Salvo prueba en contrario, el endoso sin fecha se considerará que ha sido efectuado antes del vencimiento del plazo fijado para levantar el protesto.
Estará prohibido antedatar las órdenes bajo pena de falsedad documental.
Sección IV De la aceptación Artículos L511-15 a
L511-20
Artículo L511-15 El tenedor o incluso un simple poseedor de una letra de cambio podrá presentarla hasta su vencimiento para la
aceptación del librado en el lugar de su domicilio. En toda letra de cambio, el librador podrá determinar que ésta deba ser presentada para su aceptación, fijando o
no un plazo para ello. Podrá prohibir en la letra la presentación para su aceptación, a no ser que se trate de una letra de cambio
pagadera en el domicilio de un tercero, o en una localidad distinta de la del domicilio del librado o de una carta girada a un cierto plazo desde la vista.
Podrá así mismo determinar que la presentación para la aceptación no pueda realizarse antes de un plazo determinado.
Todo endosante podrá establecer que la letra deba ser presentada para su aceptación, con o sin plazo determinado, a no ser que el librador la haya declarado no aceptable.
Las letras de cambio a un cierto plazo desde la vista deberán presentarse a la aceptación en el plazo de un año a partir de su fecha.
El librador podrá reducir este último plazo o estipular uno mayor. Estos plazos podrán ser reducidos por los endosantes. Cuando la letra de cambio haya sido emitida por ejecución de un contrato relativo a suministros de mercancías y
firmado entre comerciantes y el librador haya cumplido las obligaciones a las que le comprometiera el contrato, el librado no podrá negarse a dar su aceptación tras un plazo determinado por los usos y costumbres del comercio en
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CÓDIGO DE COMERCIO materia de reconocimiento de mercancías.
La falta de aceptación conllevará de pleno derecho el vencimiento del plazo con los gastos a cuenta del librado.
Artículo L511-16 El librado podrá solicitar la presentación por segunda vez al día siguiente de la primera. Los interesados no podrán
alegar que tal petición no ha sido cumplida salvo si ésta hubiera sido mencionada en el protesto. El tenedor no estará obligado a desprenderse de la letra presentada para su aceptación en manos del librado.
Artículo L511-17 La aceptación debe escribirse sobre la letra de cambio. Se expresará mediante la palabra "aceptado" o cualquier
otra palabra equivalente y será firmada por el librado. La simple firma del librado en el anverso de la letra valdrá como aceptación.
Cuando la letra sea pagadera a un cierto plazo desde la vista o cuando deba ser presentada para su aceptación en un plazo determinado en virtud de una cláusula especial, la aceptación deberá fecharse el día en que haya sido dada, a no ser que el tenedor exija que sea fechada el día de la presentación. A falta de fecha, el tenedor hará constar esa omisión por un protesto levantado en tiempo hábil, para poder conservar sus derechos de recurso contra los endosantes y contra el librador.
La aceptación será pura y simple, pero el librado podrá limitarla a una parte del importe. Cualquier otra modificación introducida por la aceptación en el texto de la letra de cambio equivaldrá a denegar su
aceptación. Sin embargo, el aceptante quedará obligado en los términos de su aceptación.
Artículo L511-18 Cuando el librador haya indicado en la letra de cambio un lugar de pago diferente al del domicilio del librado, sin
designar a un tercero en cuyo domicilio deba reclamarse el pago, el librado podrá indicarlo en el momento de la aceptación. A falta de tal indicación, se presumirá que el aceptante queda obligado a pagar él mismo en el lugar de pago.
Si la letra fuera pagadera en el domicilio del librado, éste podrá indicar en la aceptación otra dirección, de la misma localidad, dónde deberá realizarse dicho pago.
Artículo L511-19 Por medio de la aceptación, el librado se obliga a pagar la letra de cambio a su vencimiento. A falta de pago, el tenedor, incluso si fuese el librador, tiene contra el aceptante una acción directa derivada de la
letra de cambio para todo lo que pueda ser exigido en virtud de los artículos L.511-45 y L.511-46.
Artículo L511-20 Si el librado, que ha inscrito en la letra de cambio su aceptación, la tacha antes de su restitución, se considerará
que la aceptación ha sido denegada. Salvo prueba en contrario, la tachadura se considerará que ha sido hecha antes de la devolución del título.
Sin embargo, si el librado ha dado a conocer su aceptación por escrito al tenedor o a cualquier firmante, estará obligado frente a éstos en los términos de su aceptación.
Sección V Del aval Artículo L511-21
Artículo L511-21 El pago de una letra de cambio podrá garantizarse por el total o por una parte de su importe mediante un aval. Esta garantía podrá prestarla un tercero o incluso uno de los firmantes de la letra. Se anotará el aval en la letra de cambio o en un suplemento o en un acta separada que indique el lugar en el que
se ha producido. Se expresará con las palabras "bueno para aval" o por cualquier otra fórmula equivalente; será firmado por el
avalista. Se considerará válido por la única firma del avalista en el anverso de la letra de cambio, salvo cuando se trate de la
firma del librado o de la del librador. El aval deberá indicar a cuenta de quien se ha otorgado. A falta de tal indicación, se considerará que es al librador. El avalista responderá en las mismas condiciones que el avalado. Su compromiso será válido incluso cuando la obligación que avale fuera nula por cualquier causa que no sea un
vicio de forma. Cuando él pague la letra de cambio, el avalista adquirirá los derechos derivados de la letra de cambio contra el
avalado y contra todos aquéllos que hayan quedado obligados en virtud de esta letra de cambio.
Sección VI Del vencimiento Artículos L511-22 a
L511-25
Artículo L511-22 I. - Una letra de cambio podrá librarse: 1º A la vista; 2º A un plazo contado desde la vista; 3º A un cierto plazo contado desde la fecha;
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CÓDIGO DE COMERCIO 4º A fecha fija. II. - Serán nulas las letras de cambio que indiquen otros vencimientos o vencimientos sucesivos.
Artículo L511-23 La letra de cambio a la vista será pagadera a su presentación. Deberá presentarse al pago dentro del plazo de un
año contado a partir de su fecha. El librador podrá reducir este plazo o establecer uno más largo. Estos plazos podrán ser reducidos por los endosantes.
El librador podrá indicar que una letra de cambio pagadera a la vista no deberá presentarse al pago antes de un plazo determinado. En ese caso, el plazo para la presentación contará a partir de dicha fecha.
Artículo L511-24 El vencimiento de una letra de cambio a un cierto plazo desde la vista se determinará o bien por la fecha de la
aceptación o bien por la de su protesto. A falta de protesto, la aceptación que no sea fechada se considerará, con relación al aceptante, que ha sido dada
el último día del plazo previsto para la presentación a la aceptación. El vencimiento de una letra de cambio librada a uno o varios meses desde la fecha o desde la vista tendrá lugar en
la fecha correspondiente del mes en el que deba efectuarse el pago. Si no hubiese fecha correspondiente se considerará que el vencimiento tendrá lugar el último día de ese mes.
Cuando una letra de cambio sea librada a uno o a varios meses y medio desde la fecha o desde la vista, se contarán primero los meses enteros.
Si el plazo fuera determinado al inicio, a mediados o a fin de mes, se entenderá por estos términos el 1, el 15 o el último día del mes.
Las expresiones "ocho días" o "quince días" se considerarán, no de una o dos semanas, sino de un plazo de ocho o quince días efectivos.
La expresión "medio mes" indicará un plazo de quince días.
Artículo L511-25 Cuando una letra de cambio sea pagadera a fecha fija en un lugar donde el calendario sea diferente al del lugar de
la emisión, se considerará que la fecha del vencimiento se ha establecido según el calendario del lugar de pago. Cuando una letra librada entre dos lugares que tengan calendarios diferentes sea pagadera a un cierto plazo desde
la fecha, el día de la emisión se remitirá al día correspondiente del calendario del lugar de pago y el vencimiento se determinará en consecuencia.
Los plazos de presentación de las letras de cambio se calcularán de acuerdo con las normas del párrafo anterior. Estas normas no serán aplicables si una cláusula de la letra de cambio, o incluso las simples menciones del
documento indicaran que existe la intención de adoptar otras normas diferentes.
Sección VII Del pago Artículos L511-26 a
L511-37
Artículo L511-26 El tenedor de una letra de cambio pagadera a fecha fija o a un cierto plazo desde la fecha o desde la vista deberá
presentar la letra de cambio al pago o bien el día en que ésta sea pagadera, o bien uno de los dos días hábiles siguientes.
La presentación de una letra de cambio en una cámara de compensación equivaldrá a una presentación al pago.
Artículo L511-27 El librado podrá exigir, al pagar la letra de cambio, que le sea devuelta con el "recibí" del tenedor. El tenedor no podrá rechazar un pago parcial. En caso de pago parcial, el librado podrá exigir que se haga mención de este pago en la letra y que le sea dado un
recibo del mismo. Los pagos efectuados a cuenta del importe de una letra de cambio se deducirán al librador y al endosante. El tenedor estará obligado a hacer protestar la letra de cambio por el excedente.
Artículo L511-28 El tenedor de una letra de cambio no podrá ser obligado a recibir el pago de ésta antes del vencimiento. El librado que paga antes del vencimiento lo hará por su cuenta y riesgo. El que paga al vencimiento quedará liberado válidamente, a no ser que haya cometido un fraude o una falte grave.
Estará obligado a comprobar la regularidad de la serie de endosos, pero no la autenticidad de la firma de los endosantes.
Artículo L511-29 Cuando una letra de cambio haya sido estipulada pagadera en una moneda que no sea de curso legal en el lugar
de pago, el importe de la misma podrá ser pagado en la moneda del país, según su valor de cambio en el día del vencimiento. Si el deudor se retrasara, el tenedor, podrá, según su voluntad, solicitar que el importe de la letra le sea pagado en la moneda del país según el curso del cambio el día del vencimiento o el día del pago.
Los usos y costumbres del lugar de pago servirán para determinar el valor de la moneda extranjera. Sin embargo, el librador podrá determinar que el importe a pagar sea calculado según un curso de cambio especificado en la letra.
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CÓDIGO DE COMERCIO Las normas anteriormente citadas no se aplicarán al caso en el que el librador haya dispuesto que el pago deberá
realizarse en una determinada moneda indicada en una cláusula de pago efectivo en una moneda extranjera. Si el importe de la letra de cambio estuviera indicado en una moneda que tenga la misma denominación pero un
valor diferente, en el país de emisión y en el de pago, se presumirá que se trata del valor correspondiente de la moneda en el lugar de pago.
Artículo L511-30 A falta de presentación de la letra de cambio al pago en el día de su vencimiento o uno de los dos días hábiles
inmediatamente posteriores, todo deudor tendrá la facultad de consignar su importe en depósito en la Caja de Depósitos y Consignaciones, por cuenta y riesgo del tenedor.
Artículo L511-31 No se admitirá la oposición al pago salvo en el caso de pérdida de la letra de cambio o de suspensión de pagos o
liquidación judicial del tenedor.
Artículo L511-32 En caso de extravío de una letra de cambio no aceptada, aquél a quien le pertenece podrá reclamar el pago con la
presentación de otra posterior.
Artículo L511-33 Si la letra de cambio perdida hubiese sido aceptada, sólo se podrá exigir el pago ante la presentación de otra
posterior en caso de resolución judicial y mediante el depósito en fianza de su importe.
Artículo L511-34 Si el que ha extraviado la letra de cambio, hubiera sido o no aceptada, no puede volver a presentar cualquier otro
ejemplar, podrá solicitar el pago de la letra de cambio extraviada y obtenerlo por resolución judicial si justifica su propiedad por medio de sus libros y depositando en fianza su importe.
Artículo L511-35 En caso de denegación del pago, sobre la demanda formulada en virtud de los dos artículos anteriores, el
propietario de la letra de cambio perdida conservará todos sus derechos por medio de un acta de protesto. Esta acta tendrá que ser realizada al día siguiente del vencimiento de la letra de cambio perdida. Las autorizaciones prescritas por el artículo L.511-42 tendrán que ser entregadas al librador y a los endosantes en los plazos establecidos por dicho artículo.
Artículo L511-36 El propietario de la letra de cambio extraviada deberá, para procurarse la siguiente, dirigirse a su endosante
inmediato que estará obligado a prestarle su interés y su nombre para actuar hacia su propio endosante, y así remitirse de endosante en endosante hasta el librador de la letra. El propietario de la letra de cambio perdida pagará los gastos ocasionados por estos trámites.
Artículo L511-37 El compromiso adquirido por la garantía mencionada en los artículos L.511-33 y L.511-34 quedará extinguido a los
tres años si, durante ese tiempo, no se hubiesen entablado ni demandas ni acciones judiciales.
Sección VIII Del recurso por falta de aceptación y por falta de pago Artículos L511-38 a
L511-51
Artículo L511-38 I. - El tenedor podrá ejercer su recurso contra los endosantes, el librador y los demás obligados: 1º En la fecha del vencimiento, si el pago no se hubiera efectuado; 2º Incluso antes del vencimiento: a) Cuando se hubiera denegado total o parcialmente la aceptación; b) En los casos en el que el librado, aceptante o no, se encuentre en situación de cese de pagos o de liquidación
judicial, de quiebra aunque no haya sido constatada por una resolución judicial, o de embargo de sus bienes con resultado infructuoso;
c) En los casos de procedimiento de suspensión de pagos o de liquidación judicial del librador de una letra no aceptable.
II. - Sin embargo, los avalistas contra los cuales se ejerza una acción en los casos previstos por las letras b y c del punto I podrán dirigir un requerimiento para solicitar plazos, al presidente del Tribunal de commerce correspondiente a su domicilio, en los tres días siguientes al ejercicio de esta acción. Si la demanda fuera admitida, la resolución fijará el momento en el que los avalistas estarán obligados a pagar los efectos de comercio de los que se trate, sin que los plazos así otorgados puedan sobrepasar la fecha fijada para el vencimiento. Esta Disposición no será susceptible ni de impugnación ni de apelación.
Artículo L511-39 La falta de aceptación o de pago deberá hacerse constar por escritura pública denominada protesto por falta de
aceptación o por falta de pago. El protesto por falta de aceptación deberá realizarse en los plazos fijados para la presentación a la aceptación. En
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CÓDIGO DE COMERCIO el caso previsto en el párrafo primero del artículo L.511-16, si la primera presentación hubiese tenido lugar el último día del plazo, el protesto podrá aún ser levantado al día siguiente.
El protesto por falta de pago de una letra de cambio pagadera a fecha fija o a un cierto plazo desde la fecha o desde la vista deberá realizarse en uno de los dos días hábiles siguientes al día en que la letra de cambio sea pagadera. Si se tratase de una letra de cambio a la vista, el protesto será levantado en las condiciones indicadas en el párrafo anterior para levantar el protesto por falta de aceptación.
El protesto por falta de aceptación dispensará de la presentación al pago y del protesto por falta de pago. En caso de cese de pagos del librado, aceptante o no, o en caso de embargo infructuoso de sus bienes, el tenedor
sólo podrá ejercer sus acciones tras la presentación al librado de la letra para su pago y tras la elaboración de un protesto.
En caso de suspensión de pagos o de liquidación judicial del librado aceptante o no, así como en caso de suspensión de pagos o de liquidación judicial del librador de una letra no sujeta a la aceptación, la presentación de la providencia declarativa bastará para permitir al tenedor ejercer sus acciones de regreso.
Artículo L511-40 Cuando el tenedor consienta en recibir en pago o bien un cheque ordinario, o bien una orden de transferencia al
Banco de Francia, o bien un cheque postal, el cheque o la orden de transferencia deberán indicar el número y el vencimiento de los efectos pagados con ellos. No se impondrá sin embargo esta mención a los cheques u órdenes de transferencias realizados entre personas pertenecientes al medio bancario para el pago del saldo de las operaciones efectuadas entre ellos por intermediación de una Cámara de compensación.
Si se efectuara el pago por medio de un cheque ordinario y si éste no fuera pagado, se realizará una notificación de protesto por falta de pago de dicho cheque en el domicilio de pago de la letra de cambio en el plazo previsto en el artículo 41 del decreto ley de 30 de octubre de 1935 que unificaba la legislación en materia de cheques y la relativa a las cartas de pago. El protesto por falta de pago del cheque y la notificación serán efectuados en un único acto, salvo en el caso en que por razones de competencia territorial fuese necesaria la intervención de dos Oficiales Ministeriales.
Si el pago se efectuara por medio de una orden de transferencia y si ésta fuera rechazada por el Banco de Francia, o por medio de un cheque postal y si éste fuese rechazado por el centro de cheques postales donde se encuentra la cuenta deudora, la no ejecución será objeto de un acta de notificación en el domicilio del emisor de dicha transferencia o de dicho cheque postal en los ocho días siguientes a la fecha de emisión. Un agente judicial o un notario será el encargado de levantar acta.
Artículo L511-41 Cuando el último día del plazo concedido para levantar acta de notificación de la no ejecución de la transferencia o
del cheque postal fuese un día festivo legal, este plazo quedará prorrogado hasta el primer día hábil que siga a la expiración. Los días festivos intermedios estarán incluidos en el cómputo del plazo. Tendrán la misma consideración que los días festivos legales los días en que, según las leyes vigentes, no se pueda exigir ningún pago ni levantar ningún protesto.
El librado de la letra de cambio que reciba la notificación tendrá que devolver la letra de cambio al Oficial Ministerial si no paga la letra de cambio así como los gastos de notificación y, si procede del protesto del cheque. Este Oficial Ministerial levantará inmediatamente el protesto por falta de pago de la letra de cambio.
Si el librado no devuelve la letra de cambio, se levantará inmediatamente un acta de protesto. Se constatará la falta de devolución. El tercero que sea tenedor estará, en este caso, dispensado de sujetarse a lo previsto en los artículos L.511-33 y L.511-34.
La no devolución de la letra de cambio constituye un delito castigado con las penas previstas por los artículos 341-1 y 314-10 del Código Penal.
Artículo L511-42 El tenedor deberá avisar de la falta de aceptación o de pago a su endosante en los cuatro días hábiles siguientes al
día del protesto o del de la presentación en caso de cláusula de devolución sin gastos. Los notarios y los agentes judiciales estarán obligados, cuando el efecto indique el nombre y el domicilio del
librador de la letra de cambio, a comunicar a éste en las cuarenta y ocho horas posteriores al registro, bajo pena del pago de indemnización por daños y perjuicios, por correo y por carta certificada, los motivos de la denegación del pago. Esta carta dará lugar, en beneficio del notario o del agente judicial, a unos honorarios cuyo importe será establecido por vía reglamentaria además de los gastos de franqueo y de certificación.
Cada endosante deberá dar a conocer a su vez a su endosante la comunicación recibida, en los dos días hábiles siguientes al día en que la haya recibido, indicando los nombres y las direcciones de los que dieron los avisos anteriores, y así sucesivamente, hasta llegar al librador.
Los plazos antes mencionados empezarán a correr desde el día en que se reciba la comunicación anterior. Cuando se realice una comunicación a un firmante de la letra de cambio, en conformidad con lo establecido en el
párrafo anterior, deberá realizar la misma en el mismo plazo a su avalista. En el caso en que un endosante no hubiera indicado su dirección o lo hubiera hecho de un modo ilegible, bastará
con que el aviso sea dado al endosante que le preceda. La persona que deba efectuar una comunicación podrá hacerlo de cualquier modo, incluso por la simple devolución
de la letra de cambio. Deberá probar que ha efectuado la comunicación en el plazo señalado. Se considerará que se ha observado este plazo cuando la carta en la que se haga la comunicación conste que ha
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CÓDIGO DE COMERCIO sido puesta en el correo en dicho plazo.
El que no hiciera la comunicación en el plazo antes indicado no incurrirá en caducidad; responderá, si procede, del perjuicio causado por su negligencia, sin que el importe de la indemnización por daños y perjuicios pueda sobrepasar el de la letra de cambio.
Artículo L511-43 Por medio de la cláusula "retour sans frais", "sans protêt" ( "devolución sin gastos", "sin protesto") o cualquier otra
cláusula equivalente inscrita sobre el documento y firmada, el librador, un endosante o avalista podrán dispensar al tenedor de hacer levantar un protesto por falta de aceptación o por falta de pago para poder ejercer sus acciones de regreso.
Esta cláusula no dispensará al tenedor de la presentación de la letra de cambio en los plazos prescritos ni de efectuar las comunicaciones que sean necesarias.
La prueba de la inobservancia de los plazos incumbirá a quien la alegue en contra del tenedor. Si la cláusula hubiera sido escrita por el librador, producirá sus efectos con relación a todos los firmantes; si
hubiera sido introducida por un endosante o un avalista, sólo producirá sus efectos con relación a éstos. Cuando a pesar de la cláusula introducida por el librador, el tenedor hiciera levantar el protesto, los gastos originados correrán de su cuenta. Cuando la cláusula emane de un endosante, o de un avalista, los gastos del protesto, en caso de que se levante, podrán ser reclamados a todos los firmantes.
Artículo L511-44 Todos los que hubieran librado, aceptado, endosado o avalado una letra de cambio responderán solidariamente
frente al tenedor. El tenedor tendrá el derecho de actuar contra todas estas personas, individual o colectivamente, sin estar obligado
a observar el orden en el que éstas se hayan obligado. El mismo derecho corresponderá a cualquier firmante de una letra de cambio que la haya pagado. La acción emprendida contra cualquiera de los obligados no impedirá que se proceda contra los otros, aunque
sean posteriores en orden a aquél contra el se haya procedido en primer lugar.
Artículo L511-45 I. - El tenedor podrá reclamar a aquél contra el que ejercite su acción: 1º El importe de la letra de cambio no aceptada o no pagada con sus correspondientes intereses, si se hubiese
estipulado de este modo; 2º Los intereses, al tipo de interés legal, a partir de la fecha de vencimiento; 3º Los gastos del protesto, los de las comunicaciones efectuadas y todos los demás gastos. II. - Si la acción se ejercitara antes de la fecha de vencimiento, se hará la deducción de la cantidad correspondiente
sobre el importe total de la letra. Este descuento se calculará de acuerdo al tipo de descuento oficial establecido por el Banco de Francia a la fecha de la acción en el lugar del domicilio del tenedor.
Artículo L511-46 La persona que haya pagado la letra de cambio podrá reclamar a sus avalistas: 1º La cantidad íntegra que haya pagado; 2º Los intereses de dicha cantidad, calculados al tipo de interés legal, a partir del día en que la haya pagado; 3º Los gastos que haya soportado.
Artículo L511-47 Toda persona obligada contra la que se ejercite una acción de regreso o que esté expuesta a una acción podrá
exigir, por el pago, la entrega de la letra de cambio con el protesto y una cuenta de resaca con el recibí. Todo endosante que haya pagado una letra de cambio podrá tachar su endoso y los de los endosantes
subsiguientes.
Artículo L511-48 En caso de ejercitarse una acción de regreso tras una aceptación parcial, el que paga la cantidad por la que la letra
no hubiera sido aceptada, podrá exigir que se mencione este pago en la letra y que se le dé el correspondiente recibo. El tenedor deberá además entregarle una copia autenticada de la letra y el protesto para permitir ejercitar acciones de regreso posteriores.
Artículo L511-49 I. - Tras la expiración de los plazos establecidos: 1º Para la presentación de una letra de cambio a la vista o a un cierto plazo desde la vista; 2º Para el levantamiento del protesto por falta de aceptación o por falta de pago; 3º Para la presentación al pago en caso de cláusula de devolución sin gastos, el tenedor, por incurrir en caducidad, será privado de sus derechos frente a los endosantes, al librador o a los
demás obligados, a excepción del aceptante. II. - Sin embargo, la privación de derechos por incurrir en caducidad no tendrá lugar con respecto al librador si
justifica que hizo provisión en la fecha de vencimiento. El tenedor, en este caso, sólo podrá ejercitar acción contra aquél sobre el que se hubiera librado la letra de cambio.
III. - En caso de que el tenedor no presentara la letra para la aceptación en el plazo establecido por el librador, aquél será privado de sus derechos de acción de regreso, tanto por falta de pago como por falta de aceptación, a no
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CÓDIGO DE COMERCIO ser que de los términos de la estipulación resulte que al librador le hubiera parecido oportuno exonerarse solamente de la garantía de la existencia de aceptación.
IV. - Si un endoso contuviera la estipulación de un plazo para la presentación, sólo podrá alegarla el endosante que la incluyó.
Artículo L511-50 Cuando la presentación de la letra de cambio o el levantamiento del protesto en los plazos prescritos fuese
imposible por causa de un obstáculo insuperable como es la prescripción legal de un Estado cualquiera o cualquier otro caso de fuerza mayor, se prorrogarán estos plazos.
El tenedor estará obligado, inmediatamente, a comunicar el caso de fuerza mayor a su endosante y a mencionar este aviso, fechado y firmado por él, en la letra de cambio o en un suplemento. Para los demás casos, se aplicarán las disposiciones del artículo L.511-42.
Cuando haya cesado la causa de fuerza mayor, el tenedor deberá, sin demora, presentar la letra a la aceptación o al pago y, si procede, deberá levantar el protesto.
Si la fuerza mayor persistiera más de treinta días a partir de la fecha de vencimiento, las acciones de regreso podrán ser ejercitadas, sin que sean necesarios ni la presentación ni el levantamiento de un protesto, a menos que estas acciones de regreso se encuentren suspendidas por un período más largo, por aplicación del artículo L.511-61.
Para las letras de cambio a la vista o a un cierto plazo desde la vista, el plazo de treinta días empezará a correr a partir de la fecha en la que el tenedor haya notificado la fuerza mayor a su endosante, antes incluso de la expiración de los plazos de presentación. Para las letras de cambio a un cierto plazo desde la vista, el plazo de treinta días se añadirá al plazo desde la vista indicado en la letra de cambio.
No serán considerados como causas de fuerza mayor los motivos meramente personales del tenedor o de aquél al que se le ha encargado la presentación de la letra o el levantamiento del protesto.
Artículo L511-51 Con independencia de los requisitos formales prescritos para el ejercicio de la acción en garantía, el tenedor de
una letra de cambio protestada por falta de pago podrá solicitar al Juez el embargo provisional de los efectos mobiliarios de los libradores, aceptantes o endosantes.
Sección IX De los protestos Artículos L511-52 a
L511-61
Subsección 1 De las formas Artículos L511-52 a
L511-55
Artículo L511-52 Los protestos por falta de aceptación o de pago serán levantados por un notario o un agente judicial. El protesto será levantado en un único y mismo acto: 1º En el domicilio de aquél sobre el que la letra de cambio fuera pagadera, o en su último domicilio conocido; 2º En el domicilio de las personas indicadas por la letra de cambio para el pago en caso de necesidad. 3º En el domicilio de un tercero que haya aceptado por intervención. En caso de indicación de un domicilio falso, el protesto será precedido de una acto de investigación.
Artículo L511-53 El acta de protesto incluirá la transcripción literal de la letra de cambio, de la aceptación, de los endosos y de las
anotaciones que se indiquen en ella, el requerimiento del pago del importe de la letra de cambio. Declarará la presencia o la ausencia de aquél que deberá pagar, los motivos de la denegación y la negación o la imposibilidad de firmar.
Artículo L511-54 No podrá suplirse el acta de protesto con ningún acto por parte del tenedor, salvo en los casos previstos por los
artículos L. 511-32 a L. 511-37 y por los artículos L. 511-40 y L. 511-41.
Artículo L511-55 Los notarios y los agentes judiciales estarán obligados a dejar copia exacta de los protestos, bajo pena de
destitución, de condena a costas, de pago de indemnización por daños y perjuicios a las partes. Estarán obligados también, bajo las mismas penas, a entregar a cambio de un recibo una copia exacta de los protestos por falta de pago, de las letras de cambio aceptadas y de los pagarés, o bien de enviárselas por carta certificada con acuse de recibo al secretario del Tribunal de commerce o del Tribunal de grande instance competente en asuntos mercantiles, correspondiente al domicilio del deudor. Este requisito formal deberá ser realizado dentro de los quince días siguientes al levantamiento del acta.
Subsección 2 De la publicidad Artículos L511-56 a
L511-60
Artículo L511-56
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CÓDIGO DE COMERCIO El secretario del Tribunal mantendrá al día un estado nominativo por cada deudor de los protestos por falta de pago
de las letras de cambio aceptadas, de los pagarés y de los cheques, de acuerdo a las denuncias presentadas por los notarios y agentes judiciales, así como de las certificaciones de impagados de cheques postales que los centros de cheques postales hayan denunciado. Este estado incluirá las declaraciones establecidas por decreto.
Artículo L511-57 Tras la expiración del plazo de un mes contado desde el día del protesto o de la expedición del certificado de
impago del cheque postal y durante un año contado desde la misma fecha, cualquier persona podrá solicitar que los secretarios de los Tribunales anteriormente citados le expidan a su costa un extracto del estado nominativo previsto en el artículo L.511-56.
Artículo L511-58 Por medio del depósito contra recibo del efecto y del protesto del cheque postal y del certificado de impago o de un
recibo que pruebe el pago del cheque por parte del deudor, el secretario del Tribunal eliminará del estado nominativo realizado en aplicación del artículo L.511-56 la indicación del protesto o de la certificación de falta de pago.
Los documentos depositados podrán ser retirados durante el año siguiente a la expiración del plazo de un año citado en el artículo L.511-57, tras lo cual el secretario dejará de ser responsable de ellos.
Artículo L511-59 Queda prohibida cualquier publicación, cualquiera que sea su forma, de los estados nominativos efectuados en
virtud de las disposiciones de la presente subsección, bajo pena de indemnización por daños y perjuicios.
Artículo L511-60 Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación de las disposiciones de la
presente subsección. Establecerá sobre todo el importe de las remuneraciones que corresponden a los notarios o agentes judiciales que hayan levantado los protestos y a los Secretarios de los Tribunaux de commerce por las diferentes formalidades de las que se encargan.
Subsección 3 De la prórroga de los plazos Artículo L511-61
Artículo L511-61 En los casos de movilización del ejército, de catástrofe o calamidad pública, de interrupción de los servicios
públicos gestionados o sometidos al control del Estado o de las entidades territoriales, ciertos decretos del Consejo de Ministros podrán prorrogar, en una parte o en todo el territorio, los plazos en los que deberían ser levantados los protestos y las demás actas destinadas a conservar las acciones de regreso de todos los valores negociables.
Las fechas de vencimiento de los valores negociables podrán ser prorrogadas en las mismas circunstancias y bajo las mismas condiciones.
Sección X De la letra de resaca Artículos L511-62 a
L511-64
Artículo L511-62 Toda persona que tenga derecho a ejercer la acción de regreso podrá reembolsarse, salvo estipulación en
contrario, mediante una nueva letra girada a la vista sobre cualquiera de los obligados en la letra y pagadera en el domicilio de éste.
La letra de resaca incluirá, además de las cantidades indicadas en los artículos L.511-45 y L.511-46, un derecho de comisión y el importe del timbre de la letra.
Si es el tenedor quien emite la letra, el importe de ésta se fijará con arreglo al cambio correspondiente a una letra de cambio girada a la vista, desde el lugar en que la letra inicial fuera pagadera sobre el lugar del domicilio del garante. Si la letra fuese emitida por un endosante, su importe se fijará según el cambio correspondiente a una letra a la vista librada desde el lugar en la que el librador de la letra de resaca tiene su domicilio sobre la localidad del domicilio del responsable de esta letra.
Artículo L511-63 El precio de negociación de la letra de resaca quedará fijado, para Francia continental, uniformemente del siguiente
modo: un 0,25% en las capitales de los departamentos, un 0,50% en la cabeza de las circunscripciones, un 0,75% en cualquier otro lugar.
En ningún caso se producirá negociación de precio de la letra de resaca dentro del mismo departamento.
Artículo L511-64 Las letras de resaca no podrán acumularse. Cada endosante sólo soportará una, así como el librador.
Sección XI De la intervención Artículos L511-66 a
L511-65
Artículo L511-65
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CÓDIGO DE COMERCIO El librador, un endosante o un avalista podrán indicar en la letra a una persona que la acepte o pague en caso de
necesidad. La letra de cambio podrá ser aceptada o pagada, en las condiciones especificadas posteriormente, por una
persona que intervenga por cuenta de cualquier deudor obligado en vía de regreso. La intervención podrá ser realizada por un tercero, incluso el librado, o una persona ya obligada por la letra de
cambio, salvo el aceptante. El interviniente estará obligado a comunicar su intervención a la persona por la cual la ha realizado en el plazo de
dos días hábiles siguientes. En caso de inobservancia de este plazo, será responsable, si procede, del perjuicio causado por su negligencia, sin que la indemnización por daños y perjuicios pueda sobrepasar el importe de la letra de cambio.
Subsección 1 De la aceptación por intervención Artículo L511-66
Artículo L511-66 La aceptación por intervención podrá producirse en todos los casos en que la acción de regreso esté iniciada antes
del vencimiento contra el tenedor de una letra de cambio susceptible de aceptación. Cuando sobre la letra de cambio se haya indicado una persona para aceptarla o pagarla en caso de necesidad en
el lugar del pago, el tenedor no podrá ejercer antes del vencimiento sus derechos de acciones de regreso contra el que haya inscrito la indicación ni contra los firmantes subsiguientes a menos que haya presentado la letra de cambio a la persona designada y éste se haya negado a la aceptación y se haya hecho constar todo esto en un protesto.
En los demás casos de intervención el tenedor podrá rechazar la aceptación por intervención. Sin embargo, si la admitiese, perderá las acciones que le hubieran correspondido antes del vencimiento contra
aquel en cuyo nombre se haya dado la aceptación y contra los firmantes subsiguientes. La aceptación por intervención será mencionada en la letra de cambio; estará firmada por el interviniente. Indicará
por cuenta de quién se ha intervenido; a falta de indicación, la aceptación se considerará que ha sido dada por cuenta del librador.
El aceptante por intervención responderá, del mismo modo que la persona por cuya cuenta interviene, frente al tenedor y frente a los endosantes posteriores.
A pesar de la aceptación por intervención aquél por cuenta de quien se haya hecho y sus avalistas podrán exigir al tenedor, contra el pago de la cantidad indicada en el artículo L.511-45, la entrega de la letra de cambio, del protesto y de un recibo, si procede.
Subsección 2 Del pago por intervención Artículos L511-67 a
L511-71
Artículo L511-67 El pago por intervención podrá producirse siempre que haya abiertas acciones de regreso por parte del tenedor, ya
sea antes o después del vencimiento. El pago comprenderá la cantidad total que deba pagar aquél por quien se interviene. Deberá efectuarse, como máximo, al día siguiente del último día permitido para el levantamiento del protesto por
falta de pago.
Artículo L511-68 Si la letra de cambio hubiese sido aceptada por intervinientes que tengan su domicilio en el lugar de pago o si
hubieran sido indicadas para el pago en caso necesario personas que tengan su domicilio en ese mismo lugar, el tenedor deberá presentar la letra a todas ellas y hacer levantar si procede protesto por falta de pago, como máximo al día siguiente del último día permitido para el levantamiento del protesto.
A falta de protesto en ese plazo, aquél que hubiese indicado la necesidad o por cuenta de quien fuese aceptada la letra y los endosantes posteriores quedarán liberados de su obligación.
Artículo L511-69 El tenedor que rechaza el pago por intervención perderá sus acciones de regreso contra todos los obligados
cambiarios que habrían resultado liberados si el pago hubiera sido aceptado.
Artículo L511-70 El pago por intervención deberá constar en la letra por medio de un recibí, con indicación de la persona a cuyo
favor se hubiese efectuado. A falta de indicación, se considerará que el pago ha sido efectuado a favor del librador. La letra de cambio y el protesto, si éste hubiese sido levantado, deberán ser entregados a la persona que haya
pagado por intervención.
Artículo L511-71 La persona que paga por intervención adquiere los derechos resultantes de la letra de cambio en contra de aquél
por el que haya intervenido y contra todos los obligados con respecto a este último en virtud de la letra de cambio. Sin embargo, no podrá endosar de nuevo la letra.
Los endosantes posteriores al firmante a favor del cual se haya efectuado el pago por intervención quedarán liberados.
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CÓDIGO DE COMERCIO En caso de que haya varios ofrecimientos para el pago por intervención, se preferirá a aquél que opere una mayor
liberación. Quien pagara por intervención sabiendo conscientemente que está actuando en contra de esta regla perderá sus acciones de regreso contra todos los que hubieran podido quedar liberados.
Sección XII De la pluralidad de ejemplares y de copias Artículos L511-72 a
L511-76
Subsección 1 De la pluralidad de ejemplares Artículos L511-72 a
L511-74
Artículo L511-72 La letra de cambio podrá ser girada en varios ejemplares idénticos. Estos ejemplares deberán estar numerados en el mismo texto del documento; si no lo estuvieran, cada uno será
considerado como una letra de cambio distinta. Todo tenedor de una letra de cambio que no indique que ha sido girada en un ejemplar único podrá exigir a su
costa la emisión de varios ejemplares. Para ello, deberá dirigirse a su inmediato endosante que estará obligado a colaborar con él para actuar contra su propio endosante y así sucesivamente hasta llegar al librador. Los endosantes estarán obligados a reproducir los endosos en los nuevos ejemplares.
Artículo L511-73 El pago realizado sobre uno de los ejemplares es liberatorio, aunque no se haya estipulado que ese pago anule los
efectos de los otros ejemplares. Sin embargo, el librado quedará obligado en virtud de todo ejemplar aceptado que no le haya sido devuelto.
El endosante que hubiera transferido los ejemplares a diferentes personas, así como los endosantes subsiguientes, quedarán obligados en razón de todos los ejemplares que lleven sus firmas y que no hayan sido devueltos.
Artículo L511-74 Aquél que haya enviado uno de los ejemplares a la aceptación deberá indicar en los restantes el nombre de la
persona en cuyo poder se encuentre ese ejemplar. Ésta estará obligada a devolverlo al legítimo tenedor de otro ejemplar. Si se negara, el tenedor sólo podrá ejercer acciones de regreso tras haber constatado por medio de un protesto:
1º Que el ejemplar enviado a la aceptación no le ha sido devuelto a pesar de haberlo solicitarlo; 2º Que no se ha podido obtener la aceptación o el pago sobre otro ejemplar.
Subsección 2 De las copias Artículos L511-75 a
L511-76
Artículo L511-75 Todo tenedor de una letra de cambio tendrá derecho a hacer copias de ésta. La copia deberá reproducir exactamente el original con los endosos y todas las demás menciones que figuren en
él. También deberá indicar dónde termina la copia. La copia podrá ser endosada y avalada del mismo modo y con los mismos efectos que el original.
Artículo L511-76 La copia deberá indicar quién es el poseedor del documento original. Éste estará obligado a entregar dicho título al
tenedor legítimo de la copia. Si se negara a hacerlo, el tenedor sólo podrá ejercitar su acción contra las personas que hayan endosado o
avalado la copia tras haber hecho constar por medio de un protesto que el original no le fue entregado tras haberlo solicitado.
Si el título original, tras el último endoso puesto, antes de que se haya hecho la copia, incluyera la cláusula: "A partir d'ici, l'endossement ne vaut que sur la copie" ("A partir de aquí el endoso sólo será válido sobre la copia") o cualquier otra fórmula equivalente, cualquier endoso firmado sobre el original se considerará nulo.
Sección XIII De las alteraciones Artículo L511-77
Artículo L511-77 En caso de alteración del texto de una letra de cambio, los firmantes posteriores a este cambio estarán obligados
en los términos del texto alterado; los firmantes anteriores lo serán en los términos del texto original.
Sección XIV De la prescripción Artículo L511-78
Artículo L511-78 Toda acción resultante de la letra de cambio contra el aceptante prescribirá a los tres años contados a partir de la
fecha de vencimiento.
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CÓDIGO DE COMERCIO Las acciones del tenedor contra los endosantes y contra el librador prescribirán al año contado desde la fecha de
protesto levantado en tiempo hábil o desde la fecha del vencimiento, en caso de cláusula de devolución sin gastos. Las acciones de unos endosantes contra otros y contra el librador prescribirán a los seis meses contados a partir
del día en que el endosante hubiera pagado la letra o del día en que hubiera sido él mismo demandado. Las prescripciones, en caso de acción judicial, no empezarán a contar hasta el día de la última demanda
interpuesta. No se aplicarán si hubo condena o si se hubiese reconocido la deuda por un acta separada. La interrupción de la prescripción sólo surtirá efecto contra aquél respecto del cual se hubiera efectuado el acto que
la interrumpa. Sin embargo, los supuestos deudores estarán obligados, si se les solicita, a declarar bajo juramento que ya no
deben nada, y su cónyuge supérstite, sus herederos o causahabientes, que ellos consideran de buena fe que ya no se debe nada.
Sección XV Disposiciones generales Artículos L511-79 a
L511-81
Artículo L511-79 El pago de una letra de cambio cuyo vencimiento sea en día legalmente considerado como festivo, será exigible el
primer día hábil siguiente. Asimismo, todos los demás actos relativos a las letras de cambio, sobre todo la presentación a la aceptación y el protesto, sólo podrán ser realizados en día laborable.
Cuando alguno de estos actos deba ser realizado en un determinado plazo cuyo último día coincida con un día festivo legalmente establecido, este plazo será prorrogado hasta el primer día laborable siguiente a la expiración. Los días festivos intermedios estarán incluidos en el cómputo del plazo.
Artículo L511-80 A los días festivos legales se asimilarán los días en los que, según los términos de las leyes vigentes, no se pueda
exigir ningún pago, ni elevar ningún protesto.
Artículo L511-81 Los plazos legales o convencionales no incluirán el día que sirva de punto de partida para los plazos. No se admitirán días de gracia, ni legales ni judiciales, salvo en los casos previstos por los artículos L. 511-38 y L.
511-50.
CAPITULO II Del pagaré a la orden Artículos L512-1 a
L512-8
Artículo L512-1 I.- El pagaré deberá contener: 1º La cláusula a la orden o la denominación del documento inscrito en el mismo texto y expresada en la lengua
empleada para la redacción del documento; 2º La promesa pura y simple de pagar una cantidad determinada; 3º La indicación del vencimiento; 4º El lugar en el que se deba efectuar el pago; 5º El nombre de la persona a quien se deba hacer el pago o a cuya orden se deba efectuar; 6º La indicación de la fecha y del lugar en el que se haya emitido el pagaré; 7º La firma de la persona que emite el documento, denominado firmante. II. - El pagaré cuyo vencimiento no esté indicado se considerará como pagadero a la vista. III. - A falta de indicación especial el lugar de emisión del título se considerará como el lugar del pago y, al mismo
tiempo, como lugar del domicilio del firmante. IV. - El pagaré que no indique el lugar de su emisión se considerará firmado en el lugar que figure junto al nombre
del firmante.
Artículo L512-2 El documento en el que falten alguna de las menciones indicadas en el punto I del artículo L.512-1 no será válido
como pagaré, salvo en los casos determinados en los puntos II al IV del artículo L.512-1.
Artículo L512-3 Serán aplicables al pagaré, mientras no sea incompatible con la naturaleza de este documento, las disposiciones
de los artículos L.511-2 a L. 511-5 L. 511-8 a L. 511-14, L. 511-18, L. 511-22 a L. 511-47, L. 511-49 a L. 511-55, L. 511-62 a L. 511-65, L. 511-67 a L. 511-71, L. 511-75 a L. 511-81, relativas a la letra de cambio.
Artículo L512-4 Serán igualmente aplicables al pagaré las disposiciones del artículo L.511-21 relativas al aval. En el caso previsto
en el párrafo sexto de este artículo, si el aval no indicase por cuenta de quién se ha dado, se presumirá que lo ha sido por cuenta del firmante del pagaré.
Artículo L512-5 Las disposiciones de los artículos L. 511-56 a L. 511-61 relativas a la publicidad y a la prórroga de los plazos de los
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CÓDIGO DE COMERCIO protestos serán aplicables al protesto levantado por falta de pago de un pagaré.
Artículo L512-6 El firmante de un pagaré quedará obligado del mismo modo que un aceptante de una letra de cambio.
Artículo L512-7 Los pagarés que deban hacerse efectivos a cierto plazo desde la vista deberán presentarse al firmante para su
aprobación en los plazos fijados en el artículo L.511-15. El plazo a contar desde la vista empezará a contar desde la fecha del VºBº del firmante en el pagaré. La negación del firmante a dar su VºBº fechado se hará constar en un protesto cuya fecha servirá de punto de partida para el plazo desde la vista.
Artículo L512-8 No se permitirá el pago por pagaré al deudor salvo que haya sido expresamente previsto por las partes y
mencionado en la factura. Incluso en ese caso, si el pagaré no llegase al acreedor en el plazo de los treinta días siguientes al envío de la factura, el acreedor podrá emitir una letra de cambio que el deudor estará obligado a aceptar en las condiciones previstas en los párrafos antepenúltimo y último del artículo L.511-15. Cualquier estipulación en contrario se tendrá por no puesta.
TITULO II DE LAS GARANTÍAS Artículos L521-1 a
L526-4
CAPITULO I Disposiciones generales sobre la prenda mercantil Artículos L521-1 a
L521-3
Artículo L521-1 La prenda constituida, por un comerciante o por un individuo no comerciante, por un acto de comercio se hará
constar con relación tanto a terceros como a las partes contratantes según las disposiciones del artículo L.110-3. La prenda, con relación a los valores negociables, podrá ser también constituida mediante un endoso regular
indicando los valores que hubieran sido entregados en garantía. Con relación a las acciones, a las participaciones en los intereses y en las obligaciones nominativas de las
sociedades financieras, industriales, mercantiles o civiles, cuya transmisión se opere por medio de una trasferencia en los registros de la sociedad, así como con relación a las inscripciones nominativas sobre el registro de la deuda pública, la prenda podrá ser igualmente constituida por medio de una transferencia, en concepto de garantía, inscrita en dichos registros.
No quedan derogadas las disposiciones del artículo 2075 del Código Civil en lo que se refiere a los créditos mobiliarios, cuyo cesionario sólo podrá ser objeto de embargo por terceros mediante la comunicación realizada al deudor del traslado de la prenda
El acreedor pignoraticio podrá recuperar los efectos de comercio ofrecidos en prenda.
Artículo L521-2 En cualquier caso, el privilegio sólo subsistirá en esta prenda en tanto que ésta haya sido puesta y mantenida en
posesión del acreedor o de un tercero elegido entre las partes. Se presumirá que el acreedor tiene las mercancías en su posesión cuando estén a su disposición en sus
almacenes o buques, en la aduana o en un depósito público si, antes de que hubieran llegado, hubiera tomado posesión de ellas por medio de un conocimiento o por una carta de porte.
Artículo L521-3 Si no se produjera el pago en la fecha de vencimiento, el acreedor podrá, ocho días después de un simple aviso al
deudor y al tercero que actúa como depositario de la prenda, si lo hubiera, proceder a la venta pública de los objetos entregados en prenda.
Cualquier venta que no fueran aquéllas de las que se encargan los proveedores de servicios de inversión las realizarán los corredores de comercio. Sin embargo, el presidente del Tribunal de commerce podrá designar para efectuarlas, a petición de las partes, a otra clase de funcionarios públicos.
A las ventas previstas en el párrafo anterior se aplicarán las disposiciones de los artículos L. 322-9 a L. 322-13. Se considerará nula cualquier cláusula que autorizase al acreedor a apropiarse de la prenda o a disponer de ella
sin los requisitos formales prescritos anteriormente.
CAPITULO II De los depósitos en almacenes generales Artículos L522-1 a
L522-40
Sección I De la autorización, de la cesión y del cese de la explotación Artículo L522-1
Artículo L522-1 El empresario que dirige un establecimiento que se usa como depósito en el que los industriales, comerciantes,
agricultores o artesanos depositan materias primas, mercancías, géneros o productos fabricados, únicamente podrá
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CÓDIGO DE COMERCIO emitir resguardos de la prenda negociables y calificar su establecimiento de almacén general si hubiese obtenido la autorización correspondiente del Prefecto.
Sección II De las obligaciones, de las responsabilidades y de las garantías Artículos L522-2 a
L522-19
Artículo L522-2 Se dará la orden Prefectoral que resuelve sobre la solicitud de autorización tras el dictamen de los organismos
profesionales e interprofesionales previstos por el decreto adoptado en Conseil d'Etat emitido para la aplicación del presente capítulo II. Tal orden deberá ser motivada.
Artículo L522-3 La cesión de un almacén general estará subordinada a la autorización del Prefecto, dada en las mismas formas.
Artículo L522-4 Cualquier cese de explotación no seguida de cesión estará subordinada a un aviso previo de seis meses, dirigido al
Prefecto por el empresario que lo explota. Tras la expiración de tal plazo y si los intereses generales del comercio lo exigen, el presidente del Tribunal de grande instance podrá nombrar en procedimiento sumario a un administrador provisional, a petición del Ministerio Público.
Artículo L522-5 Los empresarios que dirijan almacenes generales no podrán dedicarse a ningún tipo de comercio o especulación
que tenga por objeto las mercancías para las que están autorizados a entregar recibos-warrants, tanto directa como indirectamente, por su cuenta o por cuenta ajena, a título de comisionista o de cualquier otro modo.
Artículo L522-6 Se considerarán incluidos en el caso del artículo L. 522-5 las sociedades que exploten almacenes generales en las
que uno de sus socios con una participación mayor al 10% del capital social, ejerza una actividad incompatible con las disposiciones de dicho artículo.
Artículo L522-7 Cualquier sociedad que dirija uno de estos depósitos que, a consecuencia de una modificación producida en el
reparto del capital entre los socios ya no se encuentre en las condiciones determinadas por el artículo L.522-6 deberá, en el mes siguiente a esta modificación, solicitar que se le mantenga la autorización de la que fuera beneficiaria.
La autorización seguirá siendo válida hasta que el Prefecto haya emitido una orden. El Prefecto podrá, o bien decidir prolongar la autorización en las condiciones previstas por el artículo L.522-11, o
bien retirársela según las disposiciones del artículo L.522-39.
Artículo L522-8 Cuando la apertura de un establecimiento esté subordinado a la emisión de un decreto o una orden ministerial, la
autorización de este establecimiento como almacén general será concedida por ese decreto o esa orden, tras consultar a los organismos citados en el artículo L.522-2.
Artículo L522-9 Los empresarios de los establecimientos autorizados no tendrán que solicitar la autorización prevista por los textos
que regulan las construcciones, ampliaciones o traslados de establecimientos.
Artículo L522-10 Los decretos u órdenes que autorizan el uso de los establecimientos como almacenes generales podrán incluir una
autorización, para su empresario, de apertura de una sala de ventas públicas de mercancías al por mayor.
Artículo L522-11 I. - Las empresas que no respondan a las condiciones establecidas en los artículos L.522-5 y L.522-6 podrán, sin
embargo, solicitar la autorización como almacenes generales de los depósitos que dirigen o proyecten dirigir y obtener excepcionalmente esta autorización si se reconoce que lo exigen los intereses del comercio.
II. - En ese caso: 1º La solicitud de autorización será objeto de las medidas de publicidad previstas por vía reglamentaria en la
Prefectura y el Ayuntamiento del lugar de tal establecimiento. 2º La orden que le concede la autorización establecerá, además de la fianza prevista en el artículo L.522-12, una
fianza especial al menos igual a ésta. La garantía especial deberá aportarse o bien en metálico, o bien por un aval bancario autorizado por el Tribunal de commerce en cuya circunscripción esté situado el establecimiento.
Artículo L522-12 La orden Prefectoral que autorice la apertura del almacén general obligará al empresario que lo dirige a aportar
una fianza. También estarán sometidos a la misma obligación los establecimientos citados en el artículo L.522-8. El importe de esta fianza, proporcional a la superficie dedicada a almacenamiento, estará comprendido entre dos
límites fijados por un decreto adoptado en Conseil d'Etat.
Artículo L522-13
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CÓDIGO DE COMERCIO Uno o varios reglamentos tipo establecerán las condiciones de funcionamiento de los establecimientos, en el marco
de las disposiciones del presente capítulo y del decreto adoptado en Conseil d'Etat tomado para su aplicación.
Artículo L522-14 Toda persona que deje una mercancía en depósito en un almacén general estará obligada a declarar la naturaleza
de la misma y su valor al empresario que dirige el establecimiento.
Artículo L522-15 Los empresarios que dirijan almacenes generales serán responsables, en los límites del valor declarado, de la
guardia, custodia y conservación de los depósitos que le sean confiados. No serán responsables de los daños y mermas naturales que se deriven de la propia naturaleza y del embalaje de
las mercancías o por causas de fuerza mayor. Los reglamentos tipo y los reglamentos especiales previstos en los artículos L.522-13 y L.522-17 precisarán las
obligaciones de los empresarios en lo que se refiere a la conservación de los depósitos.
Artículo L522-16 Las mercancías susceptibles de ser cubiertas por un warrant serán obligatoriamente aseguradas contra incendio
por las pólizas generales del almacén. Sin embargo, los empresarios que exploten almacenes generales establecidos en los puertos marítimos, no
tendrán esta obligación con relación a las mercancías almacenadas cubiertas por un seguro marítimo siempre que ese seguro cubra esos riesgos.
Si durante este período se produjera un siniestro, el empresario que dirige el almacén general no será responsable ante los depositantes, las compañías de seguros y los poseedores de warrants.
Tras la expiración de dicho período, las mercancías antes mencionadas deberán ser aseguradas por las pólizas generales del almacén.
Artículo L522-17 Cada establecimiento estará dotado de un reglamento particular que completará las disposiciones generales de los
reglamentos tipo y que determinen las condiciones de explotación considerando la naturaleza y la situación del almacén.
Artículo L522-18 Deberá adjuntarse al reglamento previsto en el artículo L.522-17 una lista de precios general y, eventualmente,
tarifas especiales para la retribución del almacenamiento en los términos del presente capítulo, y de los servicios prestados en tal ocasión a los depositantes. La percepción de las tasas correspondientes se producirá indistintamente y sin ningún trato de favor.
Artículo L522-19 Las lista de precios deberán ser comunicadas al Prefecto al menos un mes antes de la apertura del almacén
general. Cualquier modificación en dichas tarifas deberá serle notificada, así como a los organismos citados en el artículo
L.522-2, y no serán aplicables hasta un mes después de esta notificación. Sin embargo, este plazo no se aplicará a los empresarios cuyos precios estén sometidos a una autorización administrativa.
Sección III Del funcionamiento y del control Artículos L522-20 a
L522-23
Artículo L522-20 Los empresarios de los almacenes generales podrán prestar dinero sobre pignoraciones de las mercancías que
reciban en depósito o negociar los warrants que las representen.
Artículo L522-21 Los presidentes, gerentes, directores y el personal de las explotaciones de los almacenes generales estarán
obligados a guardar secreto profesional en todo lo relacionado con las mercancías depositadas, bajo las penas previstas en el artículo 226-13 del Código Penal.
Artículo L522-22 Los almacenes generales serán controlados por la administración, en las condiciones establecidas por decreto
adoptado en Conseil d'Etat.
Artículo L522-23 Las disposiciones del presente capítulo, el decreto adoptado para la aplicación de dichas disposiciones, la lista de
precios y los reglamentos, se expondrán en tablones de anuncios en la parte de las oficinas del almacén a donde el público tenga acceso.
Sección IV De los resguardos y de los warrants Artículos L522-24 a
L522-37
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CÓDIGO DE COMERCIO Artículo L522-24
Se entregará a cada depositante uno o varios resguardos. Estos resguardos mencionarán el nombre, profesión y domicilio del depositante así como la naturaleza de la mercancía depositada y las indicaciones correspondientes para establecer su identidad y para determinar su valor.
Las mercancías fungibles depositadas en un almacén general y a cambio de las que se entregue un resguardo y un warrant podrán ser sustituidas por mercancías de la misma naturaleza, de la misma especie y de la misma calidad. La posibilidad de esta substitución deberá ser mencionada a la vez en el resguardo y en el warrant.
Los derechos y privilegios del tenedor del resguardo y del tenedor del warrant serán trasladados a las mercancías sustituidas.
Se podrá entregar un resguardo y un warrant por un lote de mercancías fungibles tomadas de un lote más importante.
Artículo L522-25 A cada resguardo de mercancía se le adjuntará, con la denominación de warrant, un título de prenda que contenga
las mismas menciones que el resguardo. Los resguardos de las mercancías y los warrants anexos a ellos serán extraídos de un libro matriz.
Artículo L522-26 Los resguardos y los warrants podrán ser transferidos por vía de endoso, juntos o por separado.
Artículo L522-27 Cualquier cesionario del resguardo o del warrant podrá exigir la transcripción del endoso realizado en su beneficio
en las matrices de las que sean separados, con la indicación de su domicilio.
Artículo L522-28 El endoso del warrant separado del resguardo vale por la pignoración de la mercancía en beneficio del cesionario
del warrant. El endoso del resguardo transmite al cesionario el derecho a disponer de la mercancía, siendo a su costa el pago
de la deuda garantizada por el warrant o bien abonando el importe de la misma sobre el precio de la venta de la mercancía, cuando el warrant no hubiese sido ya transferido con el resguardo.
Artículo L522-29 El endoso del resguardo y del warrant, transferidos conjuntamente o por separado, deberán llevar inscrita la fecha. El endoso del warrant separado del resguardo deberá además declarar el importe íntegro, en capital e intereses,
de la deuda garantizada, la fecha de su vencimiento y el nombre, profesión y domicilio del acreedor. El primer cesionario del warrant deberá hacer transcribir inmediatamente el endoso en los libros del almacén, con
las menciones que lo acompañan. Se hará mención de esta transcripción en el warrant.
Artículo L522-30 El tenedor del resguardo separado del warrant podrá, incluso antes de la fecha de vencimiento, pagar la deuda
garantizada por el warrant. Si el tenedor del warrant no fuera conocido o si siendo conocido no está de acuerdo con el deudor sobre las
condiciones en las que tendría lugar el anticipo del pago, la cantidad adeudada, incluidos los intereses hasta la fecha del vencimiento, quedará consignado en la administración del almacén general que será el responsable de ella. Esta consignación liberará la mercancía.
Artículo L522-31 A falta de pago en la fecha de vencimiento, el tenedor del warrant separado del resguardo, podrá iniciar los
trámites para que los funcionarios correspondientes procedan a la venta pública en subasta y al por mayor de la mercancía en prenda, ocho días después del protesto y sin ningún requisito formal, según las disposiciones del libro III relativas a las ventas públicas de mercancías al por mayor.
En el caso de que el firmante primitivo del warrant lo hubiera pagado, podrá iniciar la venta de la mercancía, como se ha dicho en el párrafo anterior, contra el tenedor del resguardo, ocho días después del vencimiento de pago y sin necesidad de ningún requerimiento de pago.
Artículo L522-32 I. - El acreedor recibirá el pago de lo adeudado sobre el precio por privilegio y preferentemente a los demás
acreedores, directamente y sin ningún requisito formal, sin más reducción que las correspondientes a: 1º Las contribuciones indirectas, y derechos de aduana debidos por la mercancía; 2º Los gastos derivados de la venta, el almacenaje y demás gastos correspondientes al mantenimiento de la cosa. II. - Si el tenedor del resguardo no se presentara en el momento de la venta de la mercancía, la cantidad que
exceda de la que se adeuda al tenedor del warrant será consignada en la administración del almacén general como se establece en el artículo L.522-30.
Artículo L522-33 El tenedor no podrá ejercer acción de regreso contra el prestatario y los endosantes hasta haber ejercido sus
derechos sobre la mercancía y si ésta hubiese sido insuficiente. El plazo fijado por el artículo L.511-42 para el ejercicio de la acción de regreso contra los endosantes no empezaría
a contar hasta el día en que se efectúe la venta de la mercancía.
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CÓDIGO DE COMERCIO El tenedor del warrant perderá, en cualquier caso, su acción contra los endosantes si no inicia el proceso de la
venta en el mes siguiente a la fecha del protesto.
Artículo L522-34 El tenedor del resguardo y del warrant tendrá los mismos derechos y privilegios sobre las indemnizaciones de
seguro debidas en caso de siniestro que sobre la mercancía asegurada.
Artículo L522-35 Los establecimientos públicos de crédito podrán recibir los warrants como efectos de comercio, con la dispensa de
una de las firmas exigidas por sus estatutos.
Artículo L522-36 El que haya perdido un resguardo o un warrant podrá solicitar y obtener por medio de una resolución judicial,
justificando su propiedad y dando una garantía, un duplicado si se trata del resguardo, o el pago de la deuda si se trata del warrant.
Si en ese caso el firmante del warrant no se hubiera liberado el día del vencimiento, el tercero tenedor cuyo endoso hubiera sido transcrito en los libros matrices del almacén general podrá ser autorizado por resolución judicial, a iniciar los trámites de venta de la mercancía comprometida aportando un aval en las condiciones determinadas en el artículo L.522-31.
El protesto previsto en dicho artículo deberá dar copia de las menciones tal y como figuran en el libro matriz del almacén general.
Artículo L522-37 En caso de pérdida del resguardo, la garantía prevista en el artículo anterior será liberada a la expiración de un
plazo de cinco años, cuando las mercancías de las que se trate no hayan sido reivindicadas por un tercero en el almacén general.
En caso de pérdida del warrant la garantía será liberada a la expiración de un plazo de tres años, contados desde la transcripción del endoso.
Sección V De las sanciones Artículos L522-38 a
L522-40
Artículo L522-38 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
Estará prohibido abrir y explotar sin la autorización prescrita en el artículo L.522-1 un establecimiento que reciba en depósito mercancías por las que se entreguen títulos de prenda negociables con el nombre de warrants o con cualquier otro nombre.
Toda infracción a esta prohibición se castigará con multa de 6.000 euros y pena de un año de prisión. El Tribunal podrá ordenar que la sentencia condenatoria sea publicada íntegramente o por extractos en los
periódicos que él designe y mediante edictos en los lugares que indique, sobre todo en las puertas del domicilio y de los almacenes del condenado, todo ello por cuenta de éste, sin que tales gastos puedan, sin embargo, sobrepasar el máximo de la multa prevista.
Artículo L522-39 En caso de infracción cometida, por el empresario que explota un almacén general, a las disposiciones del
presente capítulo o de los decretos adoptados en Conseil d'Etat tomado para la aplicación de dichas disposiciones, el Prefecto podrá acordar por medio de una orden la revocación de la autorización, a título temporal o definitivo, tras haber emplazado al afectado y haber consultado a los organismos profesionales e interprofesionales citados en el artículo L.522-2.
En ese caso, el presidente del Tribunal que resolverá como en procedimiento sumario, designará a un administrador provisional, a petición del Ministerio Público, y determinará los poderes de los que dispone para la explotación del establecimiento.
En caso de revocación de la autorización a título definitivo y cuando el interés del comercio local exija el mantenimiento del almacén general, los poderes del administrador provisional podrán conllevar la subasta pública del fondo de comercio y del material necesario para su explotación.
La revocación de la autorización a título definitivo podrá igualmente ser acordada, tras consultar a los organismos profesionales e interprofesionales para los establecimientos que hubieran dejado de funcionar como almacenes generales o como depósitos durante al menos dos años.
Artículo L522-40 Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación de las disposiciones del presente
capítulo.
CAPITULO III Del warrant hotelero Artículos L523-1 a
L523-15
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CÓDIGO DE COMERCIO Artículo L523-1
Todo empresario que explote un hotel podrá solicitar un préstamo sobre el mobiliario comercial, el material y el utillaje que sirva para su explotación, aunque hubieran sido convertidos en inmuebles por su destino, conservando la custodia en sus locales del hotel.
Los objetos que sirvan de garantía al crédito serán, hasta el reembolso de las cantidades prestadas, la prenda del prestamista y de sus derechohabientes.
El que solicitase el préstamo será el responsable de dichos objetos que le sean confiados a sus cuidados, sin ninguna indemnización oponible al prestamista ni a sus derechohabientes.
Artículo L523-2 El empresario que explota el hotel, que no sea propietario ni usufructuario del inmueble en el que ejerce su
industria, deberá comunicar, antes de solicitar cualquier préstamo, por notificación extrajudicial al propietario o usufructuario del fondo arrendado o a su mandatario legal, la clase, la cantidad y el valor de los objetos constituidos en prenda, así como las cantidades que vaya a solicitar como préstamo. Esta misma comunicación deberá ser reiterada por carta, por intermediación del secretario del Tribunal de grande instance competente en el lugar de la explotación del hotel amueblado. La carta de aviso será entregada al Secretario que deberá darle su VºBº, registrarla y enviarla en cédula certificada con acuse de recibo.
El propietario, el usufructuario o su mandatario legal, en un plazo de quince días (sin contar el de inicio ni el de final del plazo) a partir de la notificación del acta antes citada, podrán presentar su oposición a tal préstamo por documento extrajudicial dirigida al secretario, cuando el que solicita el préstamo no hubiera pagado los alquileres devengados, seis meses de alquileres en curso y seis meses por adelantado.
El solicitante del préstamo podrá obtener el levantamiento de la oposición si efectúa el pago de los alquileres anteriormente citados.
Si no hay respuesta por parte del propietario, del usufructuario o de su mandatario legal, en el plazo fijado anteriormente, se considerará que no ha habido oposición al préstamo.
El privilegio del arrendador hasta el total de la cantidad prestada se reducirá a los objetos que sirven de prenda para dicho préstamo. Sin embargo, el privilegio subsistirá por derecho en caso de que se hubiera hecho a pesar de la oposición del arrendador.
El arrendador siempre podrá renunciar a su oposición o al pago de los alquileres citados anteriormente, firmando en el registro previsto en el artículo L.523-3.
En caso de conflicto entre el privilegio del tenedor del warrant hotelero y de los acreedores hipotecarios, su prelación será determinada por las fechas respectivas de la transcripción del primer endoso del warrant y de las inscripciones de hipotecas.
Artículo L523-3 Se llevará en cada secretaría del Tribunal de commerce un libro matriz, numerado y rubricado, cuyo talón y matriz
llevarán la lista de menciones fijada por decreto, según las declaraciones del solicitante del préstamo. El talón que contiene tales menciones constituye el warrant hotelero.
Artículo L523-4 El warrant hotelero será expedido por el secretario del Tribunal de commerce en cuya circunscripción se explote el
hotel. El solicitante del préstamo que lo recibe firmará el recibí de la entrega del título, firmando con la fecha en el registro matriz. No se podrá expedir más de un warrant por los mismos objetos. El warrant será transferido por el solicitante del préstamo al prestamista por vía de endoso firmado y fechado.
El prestamista deberá hacer transcribir en el registro el primer endoso en un plazo de cinco días. Se hará mención también de esta transcripción en el warrant.
Artículo L523-5 El warrant será transferible por vía de endoso realizado siguiendo las prescripciones del artículo L.523-4, pero no
sometido al requisito formal de la transcripción como el primer endoso. Todos los que hayan firmado o endosado un warrant estarán obligados a la garantía solidaria con el tenedor. El primero y los sucesivos poseedores de un warrant estarán obligados a comunicar en los ocho días siguientes, al
secretario del Tribunal de commerce, en sobre de documento judicial certificado con acuse de recibo o verbalmente contra recibo de la comunicación.
El solicitante del préstamo podrá por una mención especial inscrita en el warrant, dispensar al primer y sucesivos tenedores del warrant de dar este aviso. En ese caso, no procederá la aplicación de las disposiciones de los dos últimos párrafos del artículo L.523-8.
Artículo L523-6 El secretario estará obligado a expedir a todo prestamista que lo requiera un estado de los warrants o un certificado
que muestre que no existen inscripciones. Estará obligado a realizar la misma expedición a cualquier hotelero perteneciente circunscripción de su secretaría que lo solicite, pero solamente en lo que se refiera al fondo explotado por él.
Este estado no irá más allá de los cinco últimos años.
Artículo L523-7 La cancelación de la inscripción se realizará mediante una acreditación del reembolso del crédito garantizado por el
warrant o por un levantamiento regular.
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CÓDIGO DE COMERCIO El solicitante del préstamo que haya reembolsado su warrant hará constar el reembolso en la secretaría del
Tribunal de commerce y hará mención del reembolso o del levantamiento sobre el libro matriz llevado por el secretario que le expedirá un certificado de la baja de la inscripción.
La inscripción será borrada de oficio, tras cinco años, si no hubiese sido renovada antes de la expiración de este plazo. Si se inscribe de nuevo tras la baja de oficio, únicamente valdrá frente a terceros desde el día de la fecha.
Artículo L523-8 El solicitante del préstamo conservará el derecho a vender los objetos del warrant de modo amistoso y antes del
pago del crédito, incluso sin la aceptación del prestamista, pero su entrega al comprador no podrá ser efectuada hasta el reembolso al acreedor.
El solicitante del préstamo, incluso antes del plazo, podrá reembolsar el crédito garantizado por el warrant; si el tenedor de éste rechaza las ofertas del deudor, éste podrá, para liberarse, consignar la cantidad ofrecida, observando los requisitos formales prescritos por los artículos 1426 al 1429 del Nuevo Código de Proceso Civil. Las ofertas se harán al último derechohabiente conocido por las comunicaciones llegadas al secretario según el artículo L.523-5. Ante un recibo de consignación regular y suficiente, el presidente del Tribunal de commerce en cuya circunscripción esté inscrito el warrant emitirá una resolución en cuyos términos se ceda la garantía por la cantidad consignada.
En caso de reembolso anticipado de un warrant, el solicitante del préstamo se beneficiará de los intereses que quedaban por adeudar hasta el vencimiento del warrant, tras la deducción de un plazo de diez días.
Artículo L523-9 Los establecimientos públicos de crédito podrán recibir los warrants hoteleros como efectos de comercio, con la
dispensa de una de las firmas exigidas por sus estatutos.
Artículo L523-10 Los tenedores de warrants tendrán, sobre las indemnizaciones de seguros en caso de siniestro, los mismos
derechos y privilegios que sobre los objetos asegurados.
Artículo L523-11 El tenedor de warrants deberá reclamar al solicitante del préstamo el pago de su crédito devengado y, si no se
realizara éste, reiterar su reclamación al deudor por carta certificada con acuse de recibo. A falta de pago del warrant en la fecha de vencimiento, el tenedor tendrá los derechos para la realización de la
prenda que las disposiciones de los artículos L.143-5 y L.143-15 confieren a los acreedores privilegiados o garantizados por una pignoración.
Sin embargo, el arrendador siempre podrá ejercer su privilegio hasta el importe de seis meses de alquileres devengados, seis meses de alquileres en curso y seis meses por adelantado.
Si el tenedor iniciase el trámite de la venta, no podrá ejercer ya su acción de regreso contra los endosantes ni siquiera contra el solicitante del préstamo hasta haber hecho valer sus derechos sobre el valor de los objetos cubiertos por el warrant. En caso de insuficiencia del precio para la compensación, se le concederá un plazo de tres meses contados a partir del día en el que se ha efectuado la venta para que ejercite su acción de regreso contra los endosantes.
Artículo L523-12 El tenedor del warrant recibirá directamente lo que se le adeudaba sobre el precio de venta, por privilegio y antes
que todos los demás acreedores, y sin otra deducción que la de las contribuciones directas y los gastos ocasionados por la venta, sin más requisitos formales que una resolución del presidente del Tribunal de commerce.
Artículo L523-13 Será castigado, según los casos, con las penas previstas para la estafa o el abuso de confianza en los artículos
313-1, 313-7, 313-8 o 314-1 y 314-10 del Código Penal, el solicitante de préstamo que realizara declaraciones falsas o constituyera un warrant sobre objetos que no fueran de su propiedad o que ya hubieran sido dados en prenda o en pignoración y que desviara, malgastara o deteriorara voluntariamente la prenda del acreedor, en su perjuicio.
Artículo L523-14 El importe de los derechos a percibir por el secretario será determinado por decreto adoptado en Conseil d'Etat. Las comunicaciones prescritas por las disposiciones del presente capítulo serán enviadas en la forma y con la tasa
correspondiente a la documentación de negocios certificada.
Artículo L523-15 Todos los acuerdos contrarios a las disposiciones del presente capítulo serán considerados nulos y no existentes, y
en particular todas aquellas estipulaciones que tengan por efecto vulnerar el derecho de los arrendatarios a instituir el warrant hotelero.
CAPITULO IV Del warrant petrolero Artículos L524-1 a
L524-21
Artículo L524-1 Los operadores, poseedores de stocks de petróleo bruto o de productos petroleros podrán cubrir con warrants los
stocks en garantía de sus préstamos, conservando sin embargo la guardia y custodia en sus fábricas o depósitos.
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CÓDIGO DE COMERCIO Los productos cubiertos por los warrants constituirán la prenda del tenedor del warrant, hasta el pago de las
cantidades adelantadas. El warrant será realizado sobre cierta cantidad de mercancías de una calidad específica, sin que sea necesario
separar materialmente los productos cubiertos por el warrant de los demás productos similares poseídos por el solicitante del préstamo.
El solicitante del préstamo será responsable de la mercancía que quede confiada a su guardia y custodia, y todo ello sin ninguna indemnización oponible en beneficio del warrant.
Artículo L524-2 Para elaborar el documento que se denomina "warrant petrolero", el secretario del Tribunal de commerce del lugar
donde se encuentren los productos cubiertos por el warrant inscribirá la clase, la calidad, la cantidad, el valor, el lugar de situación de los productos que deberán servir como prenda para el préstamo, el importe del préstamo, así como las cláusulas y condiciones particulares relativas al warrant petrolero establecidas por las partes, todo ello según las declaraciones del solicitante del préstamo.
El warrant será firmado por el prestatario. Sólo será válido por tres años como máximo, pero podrá ser renovado.
Artículo L524-3 El warrant deberá indicar si el producto cubierto por él está asegurado o no, y, en caso de tener un seguro, el
nombre y la dirección del asegurador. La continuación de dicho seguro hasta la realización del warrant será facultativa para los prestamistas. Los tenedores de warrants tendrán los mismos derechos y privilegios sobre las indemnizaciones de seguros
debidas en caso de siniestro que sobre los productos asegurados.
Artículo L524-4 El Secretario del Tribunal de commerce expedirá, a todo el que lo solicite, un desglose de los warrants inscritos en
los cinco últimos años a nombre del solicitante del préstamo o un certificado de que no existe ninguna inscripción.
Artículo L524-5 La cancelación de la inscripción se realizará mediante una acreditación del reembolso del crédito garantizado por el
warrant o por un levantamiento regular. El solicitante del préstamo que haya reembolsado el warrant solicitará del secretario del Tribunal de commerce que
dé constancia de dicho reembolso. Se hará mención del pago o del levantamiento en el libro matriz previsto en el artículo L.524-2. Se le expedirá un certificado de baja de dicha inscripción.
La inscripción será suprimida de oficio después de cinco años si no ha sido renovada antes de la expiración del plazo. Si se vuelve a inscribir tras la baja de oficio, sólo valdrá frente a terceros desde el día de la nueva fecha.
Artículo L524-6 El solicitante del préstamo conservará el derecho a vender los productos cubiertos por el warrant de modo
amistoso y antes del pago del crédito, incluso sin la autorización del prestamista. Sin embargo, la entrega de los productos al comprador no podrá ser realizada hasta haber desinteresado al acreedor.
El solicitante del préstamo podrá, incluso antes de la fecha de vencimiento, reembolsar el crédito garantizado por el warrant. Si el tenedor del warrant rechaza las ofertas del deudor, éste podrá consignar la cantidad ofrecida para liberarse en las condiciones previstas en los artículos 1426 al 1429 del Nuevo Código de Proceso Civil. Las ofertas se harán al último derechohabiente conocido por las comunicaciones llegadas a la secretaría del tribunal de commerce según el artículo L.523-8. Ante un recibo de consignación regular y suficiente, el presidente del Tribunal de commerce en cuya circunscripción esté inscrito el warrant emitirá una resolución en cuyos términos se ceda la garantía por la cantidad consignada.
En caso de reembolso anticipado de un warrant petrolero, el solicitante del préstamo se beneficiará de los intereses que quedaban por devengar hasta el vencimiento del warrant salvo una deducción de un plazo de diez días.
Artículo L524-7 Los establecimientos públicos de crédito podrán recibir los warrants como efectos de comercio, con la dispensa de
una de las firmas exigidas por sus estatutos.
Artículo L524-8 El warrant petrolero será transferible por vía de endoso. Éste será fechado y firmado, mencionará los nombres, las
profesiones y los domicilios de las partes. Todos los que hayan firmado o endosado un warrant estarán obligados a la garantía solidaria con el tenedor. El poseedor y sucesivos poseedores de un warrant estarán obligados a avisar de ello al secretario del Tribunal de
commerce en los ocho días siguientes por carta certificada con acuse de recibo o verbalmente a cambio de recibo de dicha comunicación.
El solicitante del préstamo podrá, por una mención especial inscrita en el warrant, dispensar al poseedor o sucesivos poseedores de dar esta comunicación, en ese caso no se podrán aplicar las disposiciones del último párrafo del artículo L.524-6.
Artículo L524-9 El tenedor del warrant petrolero deberá reclamar al solicitante del préstamo el pago de su crédito devengado y si
no se produce dicho pago, constatar y reiterar su reclamación al deudor por carta certificada con acuse de recibo.
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CÓDIGO DE COMERCIO Si no estuviese pagado a los cinco días del envío de esta carta, el tenedor del warrant petrolero estará obligado a
denunciar la falta de pago, bajo pena de perder sus derechos contra los endosantes, dentro de los quince días naturales siguientes al vencimiento, sin contar el de inicio ni el de final de plazo, por un apercibimiento dirigido a cada uno de los endosantes y remitido a la secretaría del Tribunal de commerce quien le dará un recibo. La secretaría del Tribunal de commerce dará a conocer este apercibimiento, en los ocho días siguientes, a los endosantes por carta certificada con acuse de recibo.
Artículo L524-10 En caso de negarse al pago, el tenedor del warrant petrolero, transcurridos los quince días desde el envío de la
carta certificada dirigida al solicitante del préstamo, como se ha dicho anteriormente, podrá iniciar el trámite de venta pública de la mercancía empeñada por medio de un Oficial Ministerial. Se procederá en virtud de una resolución emitida por requerimiento del presidente del Tribunal del Comercio de la situación de las mercancías cubiertas por el warrant, fijando el día y la hora de la venta. Se anunciará al menos ocho días antes mediante edictos que se colocarán en los lugares indicados por el presidente del Tribunal de commerce. El presidente del Tribunal podrá, en cualquier caso, autorizar el anuncio de la venta en los periódicos. Se deberá hacer constar la publicidad hecha por una mención inscrita en el documento de venta.
Artículo L524-11 El fedatario público encargado informará, por carta certificada, al deudor y a los endosantes, con ocho días de
antelación, del lugar, fecha y hora en que se procederá a la venta. El solicitante del préstamo podrá sin embargo, por una mención especial inscrita en el warrant petrolero, aceptar
que no haya obligatoriamente venta pública, y que la venta pueda ser realizada de modo amistoso. En tal caso, para proceder a la venta se solicitará al presidente del Tribunal de commerce de la zona donde se encuentren las mercancías que emita una resolución.
Artículo L524-12 Las disposiciones del artículo 53 de la Ley nº 91-650 de 9 de julio de 1991 que reforma los procedimientos civiles
de ejecución serán aplicables a las ventas previstas por las disposiciones del presente capítulo.
Artículo L524-13 El tenedor del warrant recibirá el pago de lo que se le adeuda directamente sobre el precio de venta, por privilegio y
con preferencia a los demás acreedores con la deducción de los gastos de venta, y sin otro requisito formal que una resolución del presidente del Tribunal de commerce.
Artículo L524-14 Si el tenedor del warrant petrolero procediera a efectuar la venta, según lo dispuesto en los artículos L.523-9 a L.
524-11, no podrá ejercer su acción de regreso contra los endosantes ni siquiera contra el solicitante del préstamo, hasta haber hecho valer sus derechos sobre el precio de los productos cubiertos por el warrant. En caso de insuficiencia de la cantidad para su compensación, se le concederá un plazo de un mes, a partir del día en que se ha realizado la venta de la mercancía, para ejercer su acción de regreso contra los endosantes.
Artículo L524-15 En caso de no conformidad, constatada entre las existencias y las cantidades o calidades cubiertas por el warrant,
los prestamistas podrán inmediatamente requerir al titular del warrant petrolero por medio de una carta certificada con acuse de recibo para que restablezca la prenda en las cuarenta y ocho horas siguientes a la recepción de la carta certificada, o bien para que reembolse, en el mismo plazo todo o parte de las cantidades prestadas sobre el warrant petrolero. Si no les fuera dada satisfacción, los prestamistas tendrán derecho a exigir el reembolso total del crédito considerándolo como devengado.
En tal caso, el solicitante del préstamo perderá el beneficio previsto en las disposiciones del último párrafo del artículo L. 524-6 concernientes al reembolso de los intereses.
Artículo L524-16 En caso de un descenso del valor de los stocks cubiertos por el warrant, que sobrepase o iguale al 10%, los
prestamistas podrán requerir de los solicitantes del préstamo que aumenten la mercancía en prenda, o bien que les devuelvan una parte proporcional de las cantidades prestadas, por carta certificada con acuse de recibo. En este último caso, serán aplicables las disposiciones del último párrafo del artículo L.524-6.
Si no se satisface tal demanda en un plazo de ocho días naturales, sin contar el primero ni el último de ellos, los prestamistas tendrán la facultad de exigir el reembolso total de su crédito considerándolo como devengado.
Artículo L524-17 Se castigará con las penas previstas en los artículos 313-1, 313-7 y 313-8 o 314-1 y 314-10 del Código Penal al
solicitante de préstamo o depositario que hiciera una declaración falsa, o constituyera un warrant petrolero sobre productos ya cubiertos por otro warrant, sin aviso previo al nuevo prestamista o desviara, malgastara o deteriorara voluntariamente la prenda de éste, en perjuicio de su acreedor.
Artículo L524-18 Cuando por ejecución de las disposiciones del presente capítulo, hubiera lugar a un procedimiento sumario, este
procedimiento será llevado ante el presidente del Tribunal de commerce de la zona en que se encuentren las mercancías cubiertas por el warrant.
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CÓDIGO DE COMERCIO Artículo L524-19
El importe de los derechos que deberá percibir el secretario del Tribunal de commerce en concepto de los warrants petroleros será el fijado por el decreto regulador los warrants agrícolas. Este importe podrá sin embargo ser revisado por un decreto especial para los warrants petroleros.
Las comunicaciones prescritas por las disposiciones del presente capítulo serán enviadas en la forma y con la tasa correspondiente a la documentación de negocios certificada.
Artículo L524-20 Las disposiciones del presente capítulo serán aplicables no obstante las obligaciones impuestas por la Ley nº
92-1443 de 31 de diciembre de 1992 que reforma el régimen petrolero, en particular en lo que afecta a la constitución y el reparto de los stocks y sin perjuicio del ejercicio eventual de la responsabilidad de los operadores en caso de infringir estas obligaciones.
Artículo L524-21 El presente capítulo será aplicable en los departamentos de Haut-Rhin, Bas-Rhin y Moselle, sin perjuicio de las
disposiciones especiales de la Ley de 1 de junio de 1924 relativa a la aplicación de las leyes comerciales francesas en esos tres departamentos.
Las secretarías competentes para el establecimiento de los warrants petroleros serán las previstas en el artículo 35 de dicha ley para el establecimiento de los warrants hoteleros.
CAPITULO V De la pignoración del utillaje y del material de equipamiento Artículos L525-1 a
L525-20
Artículo L525-1 El pago del precio de adquisición del utillaje y del material de equipamiento profesional podrá ser garantizado, con
relación al vendedor o al prestamista que adelanta los fondos necesarios para pagar al vendedor, por medio de una pignoración limitada al utillaje o al material adquirido de este modo.
Si el comprador tuviera la condición de comerciante esta pignoración estará sometida, no obstante las disposiciones que siguen, a las reglas dictadas por los capítulos II y III del título IV del Libro I, sin que sea necesario incluir en esta pignoración los elementos esenciales del fondo.
Si el comprador no tuviese la condición de comerciante, la pignoración se someterá a las disposiciones del artículo L.525-16.
Artículo L525-2 Se concederá la pignoración por medio de una escritura pública o documento privado registrado por el pago de una
tasa fija. Cuando se conceda al vendedor, será dada en el documento de venta. Cuando se conceda al prestamista que adelanta los fondos necesarios para el pago al vendedor, se dará la
pignoración en el acta del préstamo. Este acta deberá mencionar, bajo pena de nulidad, que los fondos pagados por el prestamista tienen por objeto
asegurar el pago del importe de los bienes adquiridos. Los bienes adquiridos deberán ser enumerados en el cuerpo del acta y cada uno de ellos deberá ser descrito de
modo preciso, con el fin de individualizarlo con respecto a los demás bienes del mismo tipo que pertenezcan a la empresa. El acta indicará igualmente el lugar fijo en el que están ubicados o mencionará, en caso contrario, que son susceptibles de ser desplazados.
Estarán equiparados a los prestamistas de fondos los garantes que intervengan en calidad de fiadores, avalistas o endosantes en la concesión de los créditos para equipamientos. Estas personas estarán subrogadas de pleno derecho a los acreedores. Lo mismo sucederá con las personas que endosan, descuentan, avalan o aceptan los efectos creados en representación de dichos créditos.
Artículo L525-3 La pignoración deberá ser concluida, bajo pena de nulidad, como máximo en el plazo de dos meses contados a
partir del día de la entrega del material de equipamiento en el lugar en el que vaya a ser instalado. También bajo pena de nulidad, la pignoración deberá ser inscrita en las condiciones requeridas por los artículos
L.142-3 y L.142-4, y en un plazo de quince días a contar desde la fecha del acta constitutiva de pignoración. Cuando la entrega del material se produzca después de la fecha prevista en el contrato o si no se hace en el lugar
inicialmente determinado, las deudas inscritas se harán exigibles de pleno derecho si el deudor no hubiera dado a conocer al acreedor pignoraticio la fecha o el lugar en el que se ha producido en el plazo de los quince días siguientes a dicha entrega.
La pignoración no podrá ser opuesta a terceros si, en los quince días siguientes a la recepción del aviso o en los quince días contados a partir del día en que ha tenido conocimiento de la fecha o del lugar de la entrega, el acreedor pignoraticio no hubiera requerido del secretario del Tribunal en dónde ha sido hecha la inscripción de la pignoración que se haga mención de esta fecha o de este lugar en el margen de dicha inscripción.
Artículo L525-4 Los bienes dados en pignoración por aplicación del presente capítulo podrán, además, por requerimiento del
beneficiario de la pignoración ser provistos de una placa sobre una pieza esencial y de un modo visible y fijo en dónde
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CÓDIGO DE COMERCIO se indique el lugar, la fecha y el número de inscripción del privilegio con el que han sido gravados.
Bajo pena de las sanciones previstas en el artículo L.525-19, el deudor no podrá obstaculizar la colocación de estas marcas ni podrá destruirlas, retirarlas o recubrirlas antes del fin o la cancelación del privilegio del acreedor pignoraticio.
Artículo L525-5 Cualquier subrogación convencional en beneficio de la pignoración deberá ser mencionada al margen de la
inscripción en los quince días siguientes a la fecha de la escritura pública o del documento privado que la constata, entregando al secretario una copia o un original de dicha acta.
Los conflictos que puedan surgir entre los titulares de inscripciones sucesivas serán regulados de conformidad con el artículo 1252 del Código Civil.
Artículo L525-6 El beneficio de la pignoración será transferido de pleno derecho según el artículo 1692 del Código Civil a los
tenedores sucesivos de los efectos garantizados, tanto si estos efectos han sido suscritos o aceptados a la orden del vendedor o del prestamista que hubieran suministrado todo o parte del importe, como si, más frecuentemente, representan la movilización de un crédito válidamente pignorado según las disposiciones del presente capítulo.
Si se hubieran creado varios efectos para representar el crédito, el privilegio vinculado a éste será ejercido por el primer demandante para la cuenta común y por la totalidad.
Artículo L525-7 Bajo pena de las sanciones previstas en el artículo L.525-19, el deudor que, antes del pago o del reembolso de las
cantidades garantizadas en conformidad con el presente capítulo, quisiera vender de modo amistoso todo o parte de los bienes gravados, deberá solicitar el consentimiento previo del acreedor pignoraticio y, si no lo tuviera, la autorización del juez de procedimientos sumarios del Tribunal de commerce que resuelve en última instancia.
Cuando haya cumplido las exigencias de publicidad requeridas por el presente capítulo y los bienes gravados hayan sido provistos de una placa según lo determinado por el artículo L.525-4, el acreedor pignoraticio o sus subrogados dispondrán del derecho de reclamación a terceros previsto en el artículo L.143-12 para el ejercicio del privilegio resultante de la pignoración.
Artículo L525-8 El privilegio del acreedor pignoraticio subsiste en aplicación de las disposiciones del presente capítulo si el bien
que ha sido gravado se convierte en inmueble por su destino. El artículo 2133 del Código Civil no será aplicable a los bienes pignorados.
Artículo L525-9 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
I. - En aplicación de las disposiciones del presente capítulo, el privilegio del acreedor pignoraticio se ejercerá sobre los bienes gravados con preferencia a todos los demás privilegios excepto:
1º Del privilegio de los gastos judiciales; 2º Del privilegio de los gastos realizados para la conservación de la cosa; 3º Del privilegio concedido a los trabajadores por el artículo L.143-10 del Código de Trabajo. II. - Se ejercerá, sobre todo, en contra de todo acreedor hipotecario y preferentemente al privilegio del Tesoro, al
privilegio citado en el artículo L.243-4 del Código de la Seguridad Social, al privilegio del vendedor del fondo de comercio a la explotación a la que corresponde el bien gravado, así como al privilegio del acreedor pignoraticio sobre el conjunto de dicho fondo.
III. - Sin embargo, para que su privilegio sea oponible al acreedor hipotecario, al vendedor del fondo de comercio y al acreedor pignoraticio sobre el conjunto de dicho fondo, previamente inscritos, el beneficiario de la pignoración firmada en aplicación del presente capítulo deberá enviar a dichos acreedores, por documento extrajudicial, una copia del acta que constate la pignoración. Esta comunicación deberá ser hecha, bajo pena de nulidad, en los dos meses siguientes a la firma de la pignoración.
Artículo L525-10 Sin perjuicio de las excepciones de aplicación previstas por el presente capítulo, el privilegio del acreedor
pignoraticio estará regulado por las disposiciones del libro I, título IV, capítulo III en las que se refiere a los requisitos formales de inscripción, los derechos de los acreedores en caso de traslado del fondo, los derechos del arrendador del inmueble, el levantamiento de dichos privilegios y los requisitos formales para su cancelación.
Artículo L525-11 La inscripción conservará el privilegio durante cinco años contados a partir de su regularización definitiva. Garantizará, al mismo tiempo que el capital, dos años de intereses. Dejará de tener efecto si no hubiera sido
renovada antes de la expiración del plazo anterior; podrá ser renovada dos veces.
Artículo L525-12 El estado de las inscripciones existentes, expedido en aplicación del artículo 32 de la Ley de 17 de marzo de 1909
relativa a la venta y a la pignoración de los fondos de comercio, deberá incluir las inscripciones realizadas en virtud de las disposiciones del presente capítulo. Podrá igualmente serle expedido al demandante, si lo requiere, una certificación de la existencia o ausencia de inscripciones en los bienes designados, hechas en virtud de las disposiciones de los capítulos I y II del título IV del libro I o en virtud de las disposiciones del presente capítulo.
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CÓDIGO DE COMERCIO Artículo L525-13
La notificación de las diligencias emprendidas, en conformidad con el artículo L.143-10 para llegar a la realización forzosa de ciertos elementos del fondo al que pertenecen los bienes gravados del privilegio del vendedor o del privilegio de la pignoración en virtud de las disposiciones del presente capítulo, hará exigibles los créditos garantizados por estos privilegios.
Artículo L525-14 Si no se hubiera efectuado el pago en la fecha de vencimiento, el acreedor beneficiario del privilegio establecido
por el presente capítulo podrá proseguir el trámite para la venta pública del bien gravado según las disposiciones del artículo L.521-3. El fedatario público encargado de la venta será designado, a su petición, por el presidente del Tribunal de commerce. El acreedor deberá ajustarse a las disposiciones del artículo L.143-10 previamente a la venta.
El acreedor pignoraticio tendrá la facultad de ejercer la sobrepuja de la décima parte prevista en el artículo L.143-13.
Artículo L525-15 Los bienes gravados en virtud del presente capítulo, cuya venta fuera solicitada junto a otros elementos del fondo,
serán objeto de una valoración a parte, o a un precio distinto si el pliego de condiciones obligara al adjudicatario a tomarlos por una peritación.
En todos los casos, las cantidades procedentes de la venta de estos bienes serán, antes de toda distribución adjudicadas a los beneficiarios de las inscripciones, hasta el total del importe de sus créditos en capital, gastos e intereses conservados por dichas inscripciones.
El recibo entregado por el acreedor beneficiario del privilegio sólo estará sujeto al pago de una tasa fija.
Artículo L525-16 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Si el comprador no tuviera la condición de comerciante, la pignoración estará sujeta a las disposiciones de los artículos L.525-1 a L.525-9, L.525-11 y L.525-12 y del presente artículo. La inscripción prevista en el artículo L.525-3 será realizada en la secretaría del Tribunal de commerce en cuya circunscripción esté domiciliado el comprador del bien gravado, o, si se trata de una persona inscrita en el Registro Central de Artesanos, en la circunscripción en la que se sitúe su fondo artesanal.
Si no se ha efectuado el pago en la fecha de vencimiento, el acreedor beneficiario del privilegio establecido por el presente capítulo podrá iniciar el trámite para la venta pública del bien gravado según las disposiciones del artículo L.521-3.
Las inscripciones se suprimirán por consentimiento de las partes interesadas o en virtud de una sentencia con valor de cosa juzgada.
A falta de sentencia, la cancelación total o parcial sólo podrá ser efectuada por el secretario y sólo por medio del depósito de un acta auténtica de consentimiento dado por el acreedor.
Cuando la baja no concedida por el acreedor se solicitara por medio de una acción principal, esta acción será llevada ante el Tribunal de commerce del lugar en el que se realizó la inscripción.
La cancelación se efectuará por medio de una mención realizada al margen de la inscripción por el secretario. Se entregará un certificado de ella a las partes que lo solicitasen.
Artículo L525-17 Para la aplicación de las disposiciones del presente capítulo, los secretarios estarán sujetos a las diligencias y
responsabilidades determinadas por vía reglamentaria en cuanto al contenido del registro de las inscripciones y la expedición de las notas descriptivas o certificados requeridos.
Sus emolumentos se determinarán según lo previsto en los textos reglamentarios vigentes.
Artículo L525-18 No se someterán a la aplicación de las disposiciones del presente capítulo: 1º Los vehículos automóviles citados en el decreto nº 53-968 de 30 de septiembre de 1953; 2º Los buques, así como los barcos de navegación fluvial citados por los artículos 78 y siguientes del Código del
Dominio Público Fluvial y de la Navegación Interior; 3º Las aeronaves citadas en los artículos L.110-1 y siguientes del Código de la Aviación Civil.
Artículo L525-19 Será castigado con las penas previstas para el abuso de confianza por los artículos 314-1 y 314-10 del Código
Penal el comprador o poseedor de bienes pignorados en aplicación del presente capítulo, que destruyera o intentara destruir, desviara o intentara desviar, o alterara o intentara alterar dichos bienes de cualquier manera con la finalidad de hacer fracasar los derechos del acreedor.
Se castigará con las mismas penas cualquier maniobra fraudulenta destinada a privar al acreedor de su privilegio sobre los bienes pignorados o disminuirlo.
Artículo L525-20 Las condiciones de aplicación de las disposiciones del presente capítulo se determinarán por decretos adoptados
en Conseil d'Etat.
CAPITULO VI
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CÓDIGO DE COMERCIO De la protección del empresario individual y de su cónyuge acciones Artículos L526-1 a
L526-4
Artículo L526-1 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2003 Artículo 8 Diario Oficial de 5 de agosto de 2003)
Por excepción a lo dispuesto en los artículos 2092 y 2093 del Código Civil, una persona física inscrita en un registro de publicidad legal de carácter profesional o una persona que ejerza una actividad profesional agrícola o autónoma podrá declarar inembargables sus derechos sobre el inmueble donde se encuentra su residencia principal. Esta declaración, publicada en la Oficina de Hipotecas o, en los departamentos de Bas-Rhin, Haut-Rhin y Moselle, en el Registro de la Propiedad, sólo tendrá efecto frente a los acreedores cuyos derechos sean posteriores a dicha publicación y hayan surgido con motivo de la actividad profesional del declarante.
Cuando el inmueble sea a la vez de uso profesional y de uso residencial, la parte reservada a la residencia principal sólo podrá ser objeto de dicha declaración en la medida en que haya sido señalada en una descripción de división del inmueble.
Artículo L526-2 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2003 Artículo 8 Diario Oficial de 5 de agosto de 2003)
La declaración, realizada ante notario bajo pena de nulidad, incluirá la descripción detallada del inmueble y la indicación de su carácter propio, común o indiviso. El acta se publicará en la Oficina de Hipotecas o, en los departamentos de Bas-Rhin, Haut-Rhin y Moselle, en el Registro de la Propiedad.
Cuando la persona esté inscrita en un registro de publicidad legal de carácter profesional, la declaración deberá mencionarse en dicho registro.
Cuando la persona no esté obligada a inscribirse en un registro de publicidad legal, se deberá publicar un extracto de la declaración en un periódico de anuncios legales del departamento en el que ejerza la actividad profesional para que esta persona pueda acogerse al beneficio mencionado en el apartado primero del artículo L. 526-1.
El establecimiento del acta y el cumplimiento de los requisitos darán lugar al pago a los notarios de una remuneración fija en el marco de un límite máximo determinado por decreto.
Artículo L526-3 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2003 Artículo 8 Diario Oficial de 5 de agosto de 2003)
En caso de cesión de derechos inmobiliarios indicados en la declaración inicial, el precio obtenido será inembargable frente a acreedores cuyos derechos sean posteriores a la publicación de esta declaración y hayan surgido con motivo de la actividad profesional del declarante, bajo la condición de que se reutilicen las cantidades en un plazo de un año para la adquisición por parte del declarante de un inmueble donde se encuentre su residencia principal.
Los derechos sobre la residencia principal nuevamente adquirida serán inembargables, hasta el límite de las cantidades reinvertidas, frente a los acreedores mencionados en el apartado primero siempre que el acta de adquisición incluya una declaración de reinversión de fondos.
La declaración de reinversión de fondos estará sujeta a las condiciones de validez y de oponibilidad previstas en los artículos L. 526-1 y L. 526-2.
En cualquier momento, la declaración podrá ser objeto de una renuncia sujeta a las mismas condiciones de validez y oponibilidad.
Los efectos de la declaración subsistirán tras la disolución del régimen matrimonial cuando el declarante sea el nuevo atributario del bien. El fallecimiento del declarante conllevará la revocación de la declaración.
Artículo L526-4 (Introducido por la Ley nº 2003-721 de 1 de agosto de 2003 Artículo 8 Diario Oficial de 5 de agosto de 2003)
En el momento de solicitar su inscripción en un registro de publicidad legal de carácter profesional, la persona física casada bajo un régimen de comunidad legal o un régimen de comunidad pactado entre cónyuges, deberá acreditar que su cónyuge ha sido informado de las consecuencias de las deudas contraídas en el marco del ejercicio de su profesión sobre los bienes comunes.
Un decreto adoptado en Conseil d'Etat precisará, por cuanto sea necesario, las condiciones de aplicación del presente artículo.
LIBRO VI DE LAS DIFICULTADES DE LAS EMPRESAS Artículos L611-1 a
L610-1 Artículo L.610-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. , art. 2 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Por decreto adoptado en Conseil d'Etat se determinará, en cada departamento, el Tribunal o los Tribunales encargados de conocer en los procedimientos previstos por el presente Libro, así como la circunscripción en la que estos Tribunales ejercerán las atribuciones que les hubieran sido asignadas.
TITULO I DE LA PREVENCIÓN Y DEL ARREGLO AMISTOSO DE LAS DIFICULTADES DE LAS
EMPRESAS Artículos L611-1 a L612-5
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CÓDIGO DE COMERCIO CAPITULO I De la prevención de las dificultades de las empresas, del mandato ad hoc y del
procedimiento de conciliación Artículos L611-1 a L611-15
Artículo L.611-1 (Ley nº 2003-721 de 1 de agosto de 2003 art. 10 Diario Oficial de 5 de agosto de 2003) ( Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 3 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cualquier persona inscrita en el Registro de Comercio y de Sociedades o en el Registro Central de Artesanos, así como cualquier persona jurídica de derecho privado, podrá unirse a una agrupación de prevención autorizada por orden del representante del Estado en la región.
Esta agrupación tendrá como misión proporcionar a sus afiliados, de modo confidencial, un análisis de las informaciones económicas, contables y financieras que estos se comprometan a remitirle con regularidad.
Cuando la agrupación detecte indicios de dificultades, informará de ello al empresario y podrá proponerle la intervención de un perito.
A instancia del representante del Estado, las administraciones competentes prestarán su apoyo a las agrupaciones de prevención autorizadas. También se podrá solicitar los servicios del Banco de Francia para emitir dictámenes sobre la situación financiera de las empresas afiliadas, según las condiciones previstas por convenio. Las agrupaciones de prevención autorizadas podrán beneficiarse asimismo de ayudas otorgadas por las entidades territoriales.
Las agrupaciones de prevención autorizadas estarán habilitadas para firmar contratos en beneficio de sus afiliados, en particular con las entidades de crédito y las empresas de seguros.
Artículo L.611-2 ( Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 4 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Cuando de un acto, documento o procedimiento se desprendiera que una sociedad mercantil, una agrupación de interés económico o una empresa individual, comercial o artesanal, está atravesando dificultades susceptibles de comprometer la continuidad de la explotación, el presidente del Tribunal de commerce podrá convocar a sus dirigentes para que se tomen las medidas oportunas para subsanar la situación.
Tras la entrevista consiguiente a la convocatoria, o en el caso de que los dirigentes no hubieran acudido a la convocatoria, el presidente del Tribunal, no obstante cualquier disposición legal o reglamentaria en contrario, podrá obtener de los auditores de cuentas, los miembros y representantes del personal, las administraciones públicas, los organismos de seguridad y previsión sociales así como los servicios encargados de la centralización de los riesgos bancarios y de los incidentes de pago, toda la información necesaria que le permita tener una imagen exacta de la situación económica y financiera del deudor.
II. - Cuando los dirigentes de una sociedad comercial no procedan a la presentación de las cuentas anuales dentro de los plazos previstos por los textos aplicables, el presidente del Tribunal podrá dirigir a los mismos un requerimiento, bajo pena de multa coercitiva, para que lo hagan.
En caso de incumplimiento de lo ordenado en este requerimiento dentro de un plazo fijado por decreto adoptado en Conseil d'Etat, el presidente del Tribunal podrá aplicar a los mismos lo dispuesto en el párrafo segundo del punto I.
Artículo L.611-3 ( Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 5 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El presidente del Tribunal de Commerce o del Tribunal de Grande Instance podrá nombrar, a petición del representante de la empresa, a un mandatario ad hoc, fijándole su misión.
Artículo L.611-4 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 5 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se establecerá un procedimiento de concertación, ante el Tribunal de Commerce, al que podrán acogerse las personas que ejerzan una actividad comercial o artesanal que atraviesen una dificultad jurídica, económica o financiera, conocida o previsible, siempre que no se encuentren en estado de insolvencia por un periodo superior a cuarenta y cinco días.
Artículo L.611-5 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 5 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El procedimiento de conciliación será aplicable, en las mismas condiciones, a las personas jurídicas de derecho privado y a las personas físicas que ejerzan una actividad profesional autónoma, incluyendo una profesión liberal, sujeta a un estatuto legal o reglamentario o cuyo título esté protegido. El Tribunal de Grande Instance será competente a efectos del presente artículo y su presidente ejercerá las mismas facultades que las atribuidas al presidente del Tribunal de Commerce.
El procedimiento de conciliación no será de aplicación a los agricultores que se beneficien del procedimiento previsto en los artículos L.351-1 a L.351-7 del Código Rural.
Artículo L.611-6
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CÓDIGO DE COMERCIO (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 5 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El presidente del Tribunal de commerce conocerá a instancia del deudor, que expondrá su situación financiera, económica y social, sus necesidades de financiación así como, en su caso, los medios de los que dispone para hacerles frente.
Además de las facultades que le son atribuidas por el párrafo segundo del punto I del artículo L.611-2, el presidente del Tribunal podrá encargar la elaboración de un informe sobre la situación económica, social y financiera del deudor a un perito elegido por él y, no obstante cualquier disposición legal o reglamentaria en contrario, obtener de las entidades bancarias o financieras cualquier información que pueda proporcionarle una imagen exacta de la situación económica y financiera del deudor.
El presidente del Tribunal incoará el procedimiento de conciliación y designará a un conciliador por un periodo que no excederá de los tres meses pero que podrá prorrogarse, mediante resolución motivada, por un mes o más a petición de este último. El deudor podrá proponer que el presidente del Tribunal nombre a un conciliador. Al expirar dicho periodo, se pondrá fin de pleno derecho a la misión del conciliador y al procedimiento.
La decisión por la que se incoa el procedimiento de conciliación no será susceptible de recurso. La misma será comunicada al Ministerio FiscaL.Cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, la decisión será igualmente comunicada al colegio profesional o a la autoridad competente de la que eventualmente dependa.
El deudor podrá recusar al conciliador en las condiciones y plazos establecidos por decreto adoptado en Conseil d'Etat.
Artículo L.611-7 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 6 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El conciliador tendrá por misión favorecer la conclusión de un acuerdo amistoso entre el deudor y sus principales acreedores así como, en su caso, sus cocontratantes habituales, con el fin de superar las dificultades de la empresa. Podrá igualmente presentar cualquier propuesta relativa a la salvaguarda de la empresa, a la continuidad de la actividad económica y al mantenimiento del empleo.
Podrá con este fin solicitarle deudor toda la información que estime necesaria. El presidente del Tribunal remitirá al conciliador los datos de que disponga, y, en su caso, los resultados del peritaje citado en el párrafo segundo del artículo L.611-6.
Las administraciones financieras, los organismos de seguridad social, las instituciones que gestionen el régimen de seguro de desempleo previsto por los artículos L.351-3 y siguientes del Código de Trabajo y las instituciones regidas por el libro IX del Código de la Seguridad Social podrá conceder condonaciones de deudas con arreglo a las condiciones establecidas en el artículo L.626-6 del presente Código.
El conciliador informará al presidente del Tribunal del estado de avance de su misión y emitirá las observaciones que estime necesarias sobre las diligencias del deudor.
Si en el transcurso del procedimiento un acreedor reclamara judicialmente al deudor el pago de sus deudas, el juez que haya incoado el procedimiento podrá aplicar, previa petición del deudor y previa consulta con el conciliador, lo dispuesto en los artículos 1244-1 a 1244-3 del Código Civil.
Si resultara imposible alcanzar un acuerdo, el conciliador presentará sin demora un informe al presidente del Tribunal Este pondrá fin a su misión así como al procedimiento de conciliación, notificándose esta decisión al deudor.
Artículo L.611-8 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 7 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - El presidente del tribunal, a petición conjunta de las partes, hará constar el acuerdo y conferirá al mismo fuerza ejecutiva. El mismo se pronunciará a la vista de una declaración certificada del deudor, indicando que no se encontraba en estado de insolvencia en la fecha de conclusión del acuerdo, o que este último ha puesto fin a la misma. La decisión que recoja el acuerdo no estará sujeta a publicación y no será susceptible de recurso. La misma pondrá fin al procedimiento de conciliación.
II. - No obstante, a petición del deudor, el Tribunal homologará el acuerdo alcanzado, siempre que se cumplan los siguientes requisitos:
1° El deudor no se encuentra en estado de insolvencia o el acuerdo alcanzado pone fin a las misma. 2° Los términos del acuerdo son susceptibles de garantizar la continuidad de la actividad de la empresa. 3° El acuerdo no perjudica los intereses de los acreedores no firmantes del mismo, sin perjuicio de la posible
aplicación de los artículos 1244-1 a 1244-3 del Código Civil.
Artículo L.611-9 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 7 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal resolverá sobre la homologación tras haber oído o citado en debida forma para tomarles declaración a puerta cerrada al deudor, a los acreedores partes en el acuerdo, a los representantes del comité de empresa o, en su defecto, a los delegados del personal, al conciliador y al Ministerio FiscaL.Cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, se convocará u oirá en las mismas condiciones al colegio profesional o a la autoridad competente de la que eventualmente dependa.
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CÓDIGO DE COMERCIO El Tribunal podrá asimismo oír a cualquier persona cuyas declaraciones estime útiles.
Artículo L.611-10 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 7 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La homologación del acuerdo pondrá fin al procedimiento de conciliación. Cuando el deudor esté sujeto al control legal de sus cuentas, el acuerdo homologado se remitirá a su auditor de
cuentas. La sentencia de homologación se depositará en la secretaría del Tribunal, donde cualquier persona interesada podrá tener acceso a ella, y será objeto de publicidad. Será susceptible de impugnación por parte de terceros dentro del plazo de diez días a contar desde la fecha en que se haga pública. La sentencia de denegación de la homologación no será objeto de publicación y podrá ser recurrida.
El acuerdo homologado suspenderá, durante el periodo de su ejecución cualquier acción judicial, cualquier diligencia individual tanto sobre los bienes muebles como sobre los inmuebles del deudor, con el fin de obtener el pago de los créditos que fueran objeto de ellos. Suspenderá por el mismo periodo los plazos concedidos a los acreedores partes en el acuerdo, bajo pena de caducidad o de rescisión de los derechos correspondientes a estos acreedores. Los codeudores y las personas que hayan concedido una fianza o una garantía autónoma podrán prevalerse de lo dispuesto en el acuerdo homologado.
El acuerdo homologado conllevará la suspensión de la inhabilitación para emitir cheques, de conformidad con el artículo L.131-73 del Código Monetario y Financiero, cuando esta hubiera sido provocada por el rechazo de pago de un cheque emitido antes de la incoación del procedimiento de conciliación.
En caso de incumplimiento de las obligaciones derivadas del acuerdo homologado, el Tribunal que conociera a instancia de una de las partes en el acuerdo homologado, declarará la rescisión de este así como la caducidad de todo plazo de pago que hubiera sido concedido.
Artículo L.611-11 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 8 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de incoación de un procedimiento de salvaguarda, de saneamiento judicial o de liquidación judicial subsiguiente, las personas que en virtud del acuerdo homologado mencionado en el punto II del artículo L.611-8 hubieran concedido al deudor una nueva aportación de tesorería con el fin de permitir la continuidad de la actividad de la empresa y su mantenimiento serán reembolsadas, respecto del importe de dicha aportación, prioritariamente sobre los demás créditos contraídos antes de la incoación del procedimiento de conciliación, según el orden de prelación establecido en el punto II del artículo L.622-17 y en el punto II del artículo L.641-13. En las mismas condiciones, las personas que aporten en virtud del acuerdo homologado un nuevo bien o servicio con el fin de garantizar la continuidad de la actividad de la empresa y su mantenimiento serán reembolsadas, respecto de dicho bien o servicio, prioritariamente sobre todos los demás créditos contraídos antes de la incoación del procedimiento de conciliación.
Esta disposición no será de aplicación a las aportaciones concedidas por los accionistas y socios del deudor con motivo de un aumento de capital.
Los acreedores firmantes del acuerdo no podrán beneficiarse directa ni indirectamente de esta disposición por aquellas aportaciones que fueran anteriores a la incoación del procedimiento de conciliación.
Artículo L.611-12 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 9 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La incoación de un procedimiento de salvaguarda, de saneamiento judicial o de liquidación judicial pondrá fin de pleno derecho al acuerdo constatado u homologado en aplicación del artículo L.611-8. En este caso, los acreedores recuperarán la totalidad de sus créditos y garantías, tras el descuento de las cantidades percibidas, sin perjuicio de las disposiciones previstas en el artículo L.611-11.
Artículo L.611-13 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 10 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las misiones de mandatario ad hoc o de conciliador no podrán ser ejercidas por una persona que, en el transcurso de los veinticuatro meses anteriores, hubiera percibido por cualquier concepto, directa o indirectamente, una remuneración o un pago por parte del deudor interesado, de cualquier acreedor del deudor o de una persona que el mismo controle o esté controlada por él en el sentido del artículo L.233-16, salvo que se trate de una remuneración percibida en concepto de un mandato ad hoc o de una misión de arreglo amistoso o de conciliación realizada por el mismo deudor o el mismo acreedor. La persona así designada deberá declarar bajo honor, al aceptar su mandato, que satisface a dichas obligaciones.
Las misiones de mandatario ad hoc o de conciliador no podrán ser confiadas a un juez adscrito a un Tribunal de Commerce en funciones o que hubiera abandonado el ejercicio de sus funciones en un periodo inferior a cinco años.
Artículo L.611-14 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 10 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Tras haber obtenido el acuerdo del deudor, el presidente del Tribunal determinará, en el momento de su nombramiento, las condiciones de remuneración del mandatario ad hoc, del conciliador y, en su caso, del perito,
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CÓDIGO DE COMERCIO teniendo en cuenta las diligencias necesarias para el cumplimiento de su misión. Su remuneración será fijada por auto del presidente del Tribunal al finalizar la misión del mismo.
Los recursos contra estas decisiones se someterán al primer presidente de la Cour d'Appel en el plazo establecido por decreto adoptado en Conseil d'Etat.
Artículo L.611-15 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 10 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cualquier persona que fuera solicitada para un procedimiento de conciliación o un mandato ad hoc o que, por sus funciones, tuviera conocimiento del mismo, estará obligada a guardar confidencialidad respecto de la información recibida.
CAPITULO II De las disposiciones aplicables a las personas jurídicas de derecho privado no
comerciantes que ejercen una actividad económica de derecho privado no comerciantes que tengan una actividad económica
Artículos L612-1 a L612-5
Artículo L.612-1 (Ley nº 2003-706 de 1 de agosto de 2003 art. 116 Diario Oficial de 2 de agosto de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 11 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las personas jurídicas de derecho privado no comerciantes que tengan una actividad económica cuyo número de empleados, cifra de negocios sin impuestos o cuyos recursos y total del balance sobrepasen, para dos de estos criterios, los límites fijados por decreto adoptado en Conseil d'Etat, deberán elaborar cada año un balance, una cuenta de resultados y un anexo explicativo. Las condiciones de elaboración de estos documentos se precisarán por decreto.
Estas personas jurídicas estarán obligadas a nombrar al menos a un auditor de cuentas y a un suplente. Para las cooperativas agrícolas y las sociedades de interés colectivo agrícola que no tengan forma mercantil,
cuando no acudan a auditores de cuentas inscritos, podrán cumplir esta obligación recurriendo a los servicios de un organismo autorizado según las disposiciones del artículo L.527-1 del Código RuraL.Las condiciones de aplicación de esta disposición serán precisadas por decreto adoptado en Conseil d'Etat.
Las penas previstas por el artículo L.242-8 serán aplicables a los dirigentes de las personas jurídicas mencionadas en el párrafo primero del presente artículo que no hubieran realizado cada año un balance, una cuenta de resultados y un anexo explicativo.
Incluso cuando no se hubieran alcanzado los límites citados en el párrafo primero, las personas jurídicas de derecho privado no comerciantes que tengan una actividad económica podrán nombrar a un auditor de cuentas y a un suplente en las mismas condiciones que las previstas en el párrafo segundo. En tal caso, el auditor de cuentas y su suplente estarán sujetos a las mismas obligaciones, tendrán las mismas responsabilidades civil y penal y ejercerán las mismas facultades que si hubiesen sido designados en aplicación del párrafo primero.
Artículo L.612-2 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 11 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las personas jurídicas de derecho privado no comerciantes que tengan una actividad económica, que sobrepasen un límite establecido por decreto adoptado en Conseil d'Etat en cuanto al número de trabajadores, al importe de su facturación o a los recursos estarán obligadas a elaborar un estado de situación del activo realizable y disponible, excluyendo los valores de explotación, y del pasivo exigible, una cuenta de pérdidas y ganancias, un cuadro de financiación y un plan de financiación.
La periodicidad, los plazos y las condiciones para la elaboración de estos documentos serán determinados por decreto.
Dichos documentos serán analizados en los informes escritos sobre la evolución de la persona jurídica realizados por el organismo encargado de la administración. Los documentos e informes serán presentados simultáneamente al auditor de cuentas, al comité de empresa o, en su defecto, a los delegados del personal, y al órgano encargado de la supervisión, cuando este exista.
En caso de inobservancia de las disposiciones previstas en los párrafos anteriores o si las informaciones proporcionadas en los informes citados en el párrafo anterior suscitaran observaciones del auditor de cuentas, este deberá señalarlas en un informe escrito que presentará al órgano encargado de la administración o de la dirección. Dicho informe será remitido al comité de empresa o, en su defecto, a los delegados del personaL.En la siguiente reunión del órgano deliberante se dará a conocer dicho informe.
Artículo L.612-3 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 11 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando el auditor de cuentas de una persona jurídica citada en los artículos L.612-1 y L.612-4 detectara, durante el ejercicio de su función, hechos susceptibles de comprometer la continuidad de la explotación de esta persona jurídica, informará de ello a los dirigentes de la persona jurídica en cuestión, en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
A falta de respuesta dentro de un plazo establecido por decreto adoptado en Conseil d'Etat, o si esta no permitiese
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CÓDIGO DE COMERCIO garantizar la continuidad de la explotación, el auditor de cuentas solicitará por escrito a los dirigentes que hagan deliberar al órgano colegiado de la persona jurídica sobre los hechos detectados. El auditor de cuentas será convocado a esta sesión. El resultado de la deliberación del órgano colegiado será comunicado al comité de empresa o, en su defecto, a los delegados del personal, y al presidente del Tribunal de Grande Instance.
En caso de incumplimiento de estas disposiciones, o si el auditor de cuentas comprobara que a pesar de los acuerdos tomados la continuidad de la explotación sigue en peligro, se convocará una junta general en las condiciones y plazos fijados por decreto adoptado en Conseil d'Etat. El auditor de cuentas elaborará un informe especial que será presentado en la siguiente junta generaL.Dicho informe será remitido al comité de empresa o, en su defecto, a los delegados del personal.
Si tras la reunión de la junta general, el auditor de cuentas constatara que las decisiones tomadas no permiten asegurar la continuidad de la explotación, informará de sus gestiones al presidente del Tribunal y le presentará los resultados de las mismas.
Lo dispuesto en el presente artículo no será de aplicación en el caso de un procedimiento de conciliación o de salvaguarda incoado por los dirigentes en aplicación de los artículos L.611-6 y L.620-1.
Artículo L.612-4 (Ley nº 2003-706 de 1 de agosto de 2003 art. 116, art. 121 Diario Oficial de 2 de agosto de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 11 IV Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Disposición nº 2005-856 de 28 de julio de 2005 art. 5 Diario Oficial de 29 de julio de 2005, con entrada en vigor el 1 de enero de 2006)
Cualquier asociación que haya recibido anualmente de las autoridades administrativas, en el sentido del artículo 1° de la Ley de 12 de abril de 2000, o de sus organismos públicos de carácter industrial y comercial, una o varias subvenciones cuyo importe global exceda de una cantidad fijada por decreto, deberá elaborar las cuentas anuales incluyendo un balance, una cuenta de resultados y un anexo cuyas condiciones de elaboración serán precisadas por decreto. Dichas asociaciones deberán hacer públicas sus cuentas anuales así como el informe del auditor de cuentas, con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Estas asociaciones estarán obligadas a nombrar al menos a un auditor de cuentas y a un suplente. NOTA: Disposición 2005-856 2005-07-28 art. 9: El artículo 5 de la presente disposición será de aplicación a los
ejercicios contables de las asociaciones y fundaciones abiertos a partir del 1 de enero de 2006.
Artículo L.612-5 (Ley nº 2001-420 de 15 de mayo de 2001 art. 112 Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 art. 123 I 5º Diario Oficial de 2 de agosto de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El representante legal o el auditor de cuentas de una persona jurídica de derecho privado no comerciante que tenga una actividad económica o de una asociación citada en el artículo L.612-4 si lo hubiera, presentará al órgano deliberante o, si no lo hubiera, a los afiliados junto a los demás documentos comunicados, un informe sobre los contratos realizados directamente o por persona interpuesta entre la persona jurídica y uno de sus administradores o una de las personas que desempeñan un papel de mandatario social.
Se hará lo mismo con los contratos firmados entre esta persona jurídica y una sociedad cuyo socio indefinidamente responsable, un gerente, un administrador, el director general, un director general delegado, un miembro del directorio o del consejo de supervisión, un accionista que disponga de una fracción de los derechos de voto superior al 10%, fuera simultáneamente administrador o desempeñara un papel de mandatario social de dicha persona jurídica.
El órgano deliberante decidirá en relación a este informe. Un decreto adoptado en Conseil d'Etat precisará las condiciones de elaboración de dicho informe. Un convenio no aprobado producirá sin embargo sus efectos. Las consecuencias perjudiciales para la persona
jurídica derivadas de tal convenio podrán ser consideradas responsabilidad individual o solidaria, según el caso; del administrador o de la persona que ejerza la función de mandatario social.
Las disposiciones del presente artículo no serán de aplicación a los contratos relativos a las operaciones corrientes realizadas en condiciones normales y que, en razón de su objeto o de sus implicaciones financieras, no sean significativas para ninguna de las partes.
TITULO II DE LA SALVAGUARDA Artículos L621-1 a
L620-2
Artículo L.620-1 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 12 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se establecerá un procedimiento de salvaguarda, el cual será incoado a instancia del deudor mencionado en el artículo L.620-2, cuando este tuviera dificultades que no pudiera superar y que fueran susceptibles de conducirlo al estado de insolvencia. Este procedimiento estará destinado a facilitar la reorganización de la empresa con objeto de permitir la continuidad de la actividad económica, el mantenimiento del empleo y la liquidación del pasivo.
El procedimiento de salvaguarda dará lugar a un plan aprobado por resolución judicial tras un periodo de
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CÓDIGO DE COMERCIO observación y, en su caso, a la constitución de dos comités de acreedores, de conformidad con lo dispuesto en los artículos L.626-29 y L.626-30.
Artículo L.620-2 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 13 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El procedimiento de salvaguarda será aplicable a cualquier comerciante, a cualquier persona inscrita en el Registro Central de Artesanos, a cualquier agricultor, a cualquier persona física que ejerza una actividad profesional autónoma, incluyendo una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, así como a cualquier persona jurídica de derecho privado.
No podrá incoarse un nuevo procedimiento de salvaguarda respecto de una persona que ya estuviera incursa en un procedimiento de este tipo, o en un procedimiento de saneamiento judicial o de liquidación judicial, en tanto no se haya puesto fin a las operaciones del plan que se derive del mismo o en tanto el procedimiento de liquidación no haya finalizado.
CAPITULO I De la apertura del procedimiento Artículos L621-1 a
L621-12
Artículo L.622-1 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 14 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal decidirá sobre la apertura del procedimiento, tras haber oído o citado en debida forma para tomarles declaración a puerta cerrada al deudor y a los representantes del comité de empresa o, en su defecto, a los delegados del personaL.Podrá también convocar a cualquier persona cuyas declaraciones considere útiles.
Además, cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, el Tribunal resolverá tras haber oído o citado en debida forma, en las mismas condiciones, al colegio profesional o a la autoridad competente de la que eventualmente dependa el deudor.
Antes de resolver, el Tribunal podrá nombrar a un juez para recabar informaciones sobre la situación financiera, económica y social de la empresa. Dicho juez podrá aplicar las disposiciones recogidas en el artículo L.623-2 y podrá solicitar el asesoramiento de un perito de su elección.
La apertura de un procedimiento de salvaguarda respecto de un deudor que se beneficie o se haya beneficiado de un mandato ad hoc o de un procedimiento de conciliación en los dieciocho meses anteriores a la misma, deberá ser examinada en presencia del Ministerio Fiscal.
En dicho caso el Tribunal, de oficio o a instancia del Ministerio Fiscal, podrá tener acceso a los documentos y actas relativos al mandato ad hoc o a la conciliación, no obstante lo dispuesto en el artículo L.611-15.
Artículo L.621-2 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 15 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal competente será el Tribunal de commerce si el deudor fuera comerciante o estuviera inscrito en el Registro Central de Artesanos. El Tribunal de Grande Instance será competente en los demás casos.
El procedimiento incoado podrá extenderse a una o varias personas en caso de existir confusión patrimonial entre estas y el deudor, o en caso de que la persona jurídica sea ficticia. El Tribunal que hubiera abierto el procedimiento inicial será competente a estos efectos.
Artículo L.621-3 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 16 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La resolución judicial dará comienzo a un periodo de observación que tendrá una duración máxima de seis meses y que podrá renovarse una vez a petición del administrador, del deudor o del Ministerio FiscaL.Podrá además prolongarse excepcionalmente por una duración fijada por decreto adoptado en Conseil d'Etat, a petición del Fiscal de la República, por resolución motivada del Tribunal.
Cuando se trate de una explotación agrícola, el Tribunal podrá prorrogar la duración del periodo de observación en función del año agrícola en curso de los usos y costumbres específicos en las producciones de la explotación.
Artículo L.621-4 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 17 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En la resolución judicial de apertura, el Tribunal nombrará a un Juez Comisario, cuyas funciones están definidas en el artículo L.612-9. En caso de necesidad, podrá nombrar a varios Jueces Comisarios.
Solicitará al comité de empresa o, en su defecto, a los delegados del personal o, para que designen a un representante entre los trabajadores de la empresa. En ausencia de comité de empresa o de delegado del personal, los trabajadores elegirán a un representante que ejercerá las funciones atribuidas a estas instituciones por las disposiciones del presente título. Las modalidades de nombramiento o elección del representante de los trabajadores serán precisadas por decreto adoptado en Conseil d'Etat. Cuando no se pueda nombrar o elegir ningún representante de los trabajadores, el empresario solicitará la declaración de insolvencia.
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CÓDIGO DE COMERCIO En las misma resolución judicial, sin perjuicio de la posibilidad de nombrar a uno o varios peritos para una misión
que el mismo determine, el Tribunal nombrará a dos mandatarios judiciales cuyas funciones están definidas en los artículos 622-20 y 622-1. A instancia del Ministerio Fiscal, podrá nombrar a varios mandatarios judiciales y varios administradores judiciales. En el caso previsto en el párrafo cuarto del artículo L.621-1, el Ministerio Fiscal podrá oponerse al nombramiento de la persona nombrada anteriormente como mandatario ad hoc o conciliador en el marco de un mandato o de un procedimiento relativo al mismo deudor.
No obstante, el Tribunal sólo estará obligado a nombrar a un administrador judicial cuando el procedimiento se haya incoado en beneficio de una persona cuyos número de trabajadores y cifra de negocios antes de impuestos sean inferiores a los umbrales fijados por decreto adoptado en Conseil d'Etat. En tal caso, será de aplicación lo dispuesto en el capítulo VII del presente título. Hasta la resolución de aprobación del plan y a instancia del deudor, del mandatario judicial o del Ministerio Fiscal, el Tribunal podrá decidir nombrar a un administrador judicial.
Para realizar el inventario y la tasación previstos en el artículo L.622-6, el Tribunal nombrará a un perito tasador judicial, a un agente judicial, a un notario o a un corredor de mercancías jurado.
Artículo L.621-5 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 17 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Ningún pariente, ni consanguíneo ni por afinidad, hasta el cuarto grado inclusive del empresario o de los dirigentes, si se tratara de una persona jurídica, podrá ser designado para una de las funciones previstas en el artículo L.621-4, salvo en los casos en que esta disposición impidiera el nombramiento de un representante de los trabajadores.
Artículo L.621-6 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 18 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Ni el representante de los trabajadores, ni los trabajadores que participen en su nombramiento, podrán haber incurrido en las condenas previstas por el artículo L.6 del Código ElectoraL.El representante de los trabajadores deberá tener dieciocho años cumplidos.
Las impugnaciones relativas a la designación del representante de los trabajadores serán competencia del Tribunal d'Instance que resuelva en última instancia.
Artículo L.621-7 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 19 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal, de oficio o a propuesta del Juez Comisario, o a instancia del Ministerio Fiscal, podrá proceder a la sustitución del administrador, del perito o del mandatario judicial.
En las mismas condiciones el Tribunal podrá nombrar a uno o varios administradores o mandatarios judiciales como adjuntos para que asistan a los que ya hubiese nombrado. El administrador, el mandatario judicial o un acreedor nombrado interventor podrá solicitar al Juez Comisario que recurra al Tribunal con esta finalidad.
Cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, el colegio profesional o la autoridad competente de la que eventualmente dependa, podrá recurrir al Ministerio Fiscal con la misma finalidad.
El deudor podrá solicitar al Juez Comisario que recurra al Tribunal para que se sustituya al administrador o al perito. En las mismas condiciones, los acreedores podrán solicitar la sustitución del mandatario judicial.
El comité de empresa o, en su defecto, los delegados del personal o, en su defecto, los trabajadores de la empresa podrán por sí solos proceder a la sustitución del representante de los trabajadores.
Artículo L.621-8 (Ley nº 2002-73 de 17 de enero de 2002 art. 122 Diario Oficial de 18 de enero de 2002) (Ley nº 2003-7 de 3 de enero de 2003 art. 40 Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 20, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El administrador y el mandatario judicial mantendrán informados al Juez Comisario y al Ministerio Fiscal del desarrollo del procedimiento. Estos podrán en cualquier momento solicitar la presentación de todas las actas o documentos relativos al procedimiento.
El Ministerio Fiscal presentará al Juez Comisario a petición de este o de oficio, no obstante cualquier disposición legal en contrario, todas las informaciones que posea y puedan ser útiles para el procedimiento.
Artículo L.621-9 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 21 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario estará encargado de velar por el rápido desarrollo del procedimiento y por la protección de los
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CÓDIGO DE COMERCIO intereses enfrentados.
Si la presencia de un técnico resultara necesaria para el procedimiento, el Juez Comisario será el único habilitado para nombrarlo y confiarle una misión que el mismo determine, sin perjuicio de la facultad del Tribunal para designar a uno a varios peritos de conformidad con el artículo L.621-4 Las condiciones de remuneración de dicho técnico serán establecidas por decreto adoptado en Conseil d'Etat.
Artículo L.621-10 (Ley nº 2003-7 de 3 de enero de 2003 art. 41 Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 22 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario designará a uno o a cinco interventores de entre los acreedores que lo solicitaran. Cuando designe a varios interventores, deberá controlar que al menos uno de ellos sea elegido de entre los acreedores titulares de garantías y que otro sea elegido de entre los acreedores no privilegiados.
No podrá ser nombrado interventor o representante de una persona jurídica ningún pariente por consanguinidad o por afinidad hasta el cuarto grado inclusive del empresario o de los dirigentes de la persona jurídica, ni ninguna persona que posea directa o indirectamente la totalidad o parte del capital de la persona jurídica deudora o cuyo capital esté detentado en su totalidad o en parte por dicha persona.
Cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, el colegio profesional o la autoridad competente de la que eventualmente dependa, será considerado interventor de oficio. En tal caso, el Juez Comisario no podrá nombrar a más de cuatro interventores.
La responsabilidad del interventor sólo se verá comprometida en caso de falta grave. El mismo podrá hacerse representar por uno de sus encargados o por un abogado. Cualquier acreedor nombrado como interventor podrá ser revocado por el Tribunal a instancia del Ministerio Fiscal.
Artículo L.621-11 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 22 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los interventores asistirán al mandatario judicial en sus funciones y al Juez Comisario en su misión de supervisión de la administración de la empresa. Podrán tener conocimiento de todos los documentos remitidos al administrador y al mandatario judiciaL.Estarán obligados a guardar confidencialidad respecto de la información recibida. Las funciones de interventor serán gratuitas.
Artículo L.621-12 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 22 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si tras la apertura del procedimiento, se comprobara que el deudor ya se encontraba en estado de insolvencia en el momento de dictarse la sentencia, el Tribunal constatará dicha situación y fijará la fecha de la misma en las condiciones previstas en el párrafo segundo del artículo L.631-8, convirtiendo el procedimiento de salvaguarda en un procedimiento de saneamiento judiciaL.Si fuera necesario, podrá modificar la duración del periodo de observación restante.
El tribunal conocerá del asunto a instancia del administrador, del mandatario o del Ministerio FiscaL.Podrá igualmente conocer de oficio. Se pronunciará tras haber oído o citado en debida forma al deudor.
CAPITULO II De la empresa durante el periodo de observación Artículos L622-1 a
L622-33
Artículo L.622-1 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 23 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - La administración de la empresa competerá a su dirigente. II. - Cuando en aplicación de lo dispuesto en el artículo L.621-4, el Tribunal nombre a uno o varios administradores;
les encargará que, juntos o por separado, supervisen al deudor o le ayuden en todos o algunos de los actos de gestión. III.- En su misión, el administrador estará obligado a respetar las obligaciones legales y convencionales que
incumben al empresario. IV.- El Tribunal podrá en todo momento modificar la misión del administrador a petición de este, del mandatario
judicial o del Ministerio Fiscal. V.- El administrador podrá gestionar con su firma las cuentas bancarias o postales de las que fuera titular el deudor
si este último hubiera sido objeto de las inhabilitaciones previstas en los artículos 65-2 y 68, párrafo tercero, del decreto de 30 de octubre de 1935 que unifica la legislación en materia de cheques.
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CÓDIGO DE COMERCIO Artículo L.622-2 (Ley nº 2003-7 de 3 de enero de 2003 art. 45 Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El auditor de cuentas del deudor no podrá objetar el secreto profesional ante los requerimientos del auditor de cuentas del administrador judicial para comunicarle todas las informaciones o documentos relativos al funcionamiento de las cuentas bancarias o postales abiertas a nombre del deudor desde la fecha de nombramiento del administrador.
Artículo L.622-3 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El deudor continuará ejerciendo sobre su patrimonio los actos de disposición y de administración, así como los derechos y acciones que no estuvieran incluidos en la misión del administrador.
Además, no obstante las disposiciones de los artículos L.622-3 y L.621-13, los actos de gestión corriente que el deudor realice por sí solo, se considerarán válidos con relación a terceros de buena fe.
Artículo L.622-4 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Desde el comienzo de sus funciones, el administrador estará obligado a requerir del empresario o a hacer él mismo, según los casos, todos los actos necesarios para conservar los derechos de la empresa contra los deudores de la misma, así como para preservar las capacidades de producción.
El administrador estará facultado para suscribir en nombre de la empresa todas las hipotecas, pignoraciones o privilegios que el empresario debiera haber realizado o renovado.
Artículo L.622-5 (Ley nº 2003-7 de 3 de enero de 2003 art. 46 Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Desde el momento de la resolución de apertura, el tercero que posea documentos y libros contables estará obligado a entregarlos para su examen al administrador, o en su defecto al mandatario judicial, cuando este los solicite.
Artículo L.622-6 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 24 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el momento de la apertura del procedimiento, se realizará un inventario del patrimonio del deudor y se procederá a una tasación del mismo así como de las garantías que lo gravan. Dicho inventario, que será remitido al administrador y al mandatario judicial, deberá ser completado por el deudor con la lista de bienes en su posesión susceptibles de ser reivindicados por un tercero.
El deudor remitirá al administrador y al mandatario judicial la lista de sus acreedores, del importe de sus deudas y de los principales contratos en curso. Deberá informarles asimismo de los procedimientos judiciales en curso en los que estuviera implicado
El administrador o, si este no hubiera sido nombrado, el mandatario judicial, no obstante cualquier disposición legal o reglamentaria en contrario, podrá solicitar a las administraciones y organismos públicos, los organismos de prevención y de seguridad social, las entidades de crédito y los servicios encargados de centralizar los riesgos bancarios y los incidentes de pago cualquier información que le permita tener una imagen exacta de la situación patrimonial del deudor.
Cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, el inventario se realizará en presencia de un representante del colegio profesional o de la autoridad competente de la que eventualmente dependa. Dicho inventario no podrá en ningún caso quebrantar el secreto profesional al que el deudor estuviera obligado.
La ausencia de inventario no obstará al ejercicio de las acciones de reclamación y de restitución. Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación del presente artículo.
Artículo L.622-7 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 25 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La resolución judicial que dé comienzo al procedimiento conllevará, de pleno derecho, la prohibición de pagar cualquier deuda contraída antes de la sentencia, con excepción del pago por compensación de deudas conexas. Conllevará asimismo, de pleno derecho, la prohibición de pagar cualquier deuda contraída después de dicha sentencia que no sea mencionada en el punto I del artículo L.622-17, con excepción de las deudas relacionadas con las necesidades de la vida cotidiana del deudor en calidad de persona física y de las deudas alimentarias.
El Juez Comisario podrá autorizar al empresario o al administrador a hacer un acto de disposición ajeno a la
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CÓDIGO DE COMERCIO gestión corriente de la empresa, a conceder una hipoteca o una pignoración o a obligarse o transigir.
El Juez Comisario podrá autorizarles a pagar deudas anteriores a la resolución, para recuperar la prenda o una cosa legítimamente retenida, cuando esta recuperación estuviera justificada para continuar la actividad.
Cualquier acto o pago realizado infringiendo las disposiciones del presente artículo será anulado a petición de cualquier interesado o del Ministerio Fiscal si dicha solicitud se presentase en un plazo de tres años a partir de la conclusión del acto o del pago de la deuda. Cuando el acto haya sido objeto de publicidad, el plazo empezará a contar a partir de la misma.
Artículo L.622-8 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 26 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de venta de un bien sujeto a privilegio especial, por una pignoración o por una hipoteca, la parte proporcional del precio correspondiente a los créditos garantizados por estas garantías será pagada en la cuenta de depósito de la Caja de Depósitos y Consignaciones. Tras la adopción del plan, los acreedores beneficiarios de estas garantías o titulares de un privilegio general serán pagados sobre el precio siguiendo el orden de prelación existente entre ellos y según lo dispuesto en el artículo L.621-22 cuando estuvieran sometidos a los plazos del plan.
El Juez Comisario podrá ordenar el pago provisional de la totalidad o parte de su crédito a los acreedores titulares de garantías sobre el bien. Salvo resolución especialmente motivada del Juez Comisario o cuando se produjera en beneficio del Tesoro o de los organismos sociales u organismos afines, este pago provisional estará subordinado a la presentación por parte de su beneficiario de una garantía procedente de una entidad de crédito.
El deudor o el administrador podrá proponer a los acreedores la sustitución de las garantías que posean por garantías equivalentes. Si no se llegara a un acuerdo, el Juez Comisario podrá ordenar dicha sustitución. El recurso contra esta resolución se presentará ante la Cour d'Appel.
Artículo L.622-9 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 27 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La actividad de la empresa continuará durante el periodo de observación, sin perjuicio de lo dispuesto en los artículos L.622-10 a L.622-16.
Artículo L.622-10 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 28 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En cualquier momento del periodo de observación, el Tribunal podrá ordenar, bien a instancia del administrador, del mandatario judicial, de un interventor, del Ministerio Fiscal, o bien de oficio, el cese parcial de la actividad.
En las mismas condiciones, convertirá dicho procedimiento en un procedimiento de saneamiento judicial si estuvieran reunidas las condiciones del artículo L.631-1, o dictará la liquidación judicial si estuvieran reunidas las condiciones del artículo L.640-1.
El Tribunal resolverá tras haber oído o citado en debida forma al deudor, al administrador, al mandatario judicial, a los interventores y a los representantes del comité de empresa o, en su defecto, a los delegados del personal, y tras haber recabado el dictamen del Ministerio Fiscal.
Cuando convierta el procedimiento de salvaguarda en un procedimiento de saneamiento judicial, el Tribunal podrá modificar, si lo considera necesario, el periodo de observación restante.
Artículo L.622-11 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 28 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando el Tribunal dicte la liquidación, pondrá fin al periodo de observación y, sin perjuicio de lo dispuesto en el artículo L.641-10, a la misión del administrador.
Artículo L.622-12 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 28 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando desaparecieran las dificultades que hubieran justificado la apertura del procedimiento, el Tribunal pondrá fin al mismo, a instancia del deudor. Dicho Tribunal resolverá en las condiciones previstas en el párrafo tercero del artículo L.622-10.
Artículo L.622-13 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 29, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
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CÓDIGO DE COMERCIO El administrador será el único con facultad para exigir la ejecución de los contratos en curso aportando la
prestación prometida al cocontratante del deudor. El contrato será rescindido de pleno derecho si tras un requerimiento dirigido al administrador este hubiera quedado más de un mes sin efecto. Antes de la expiración de este plazo, el Juez Comisario podrá imponer al administrador un plazo más corto o concederle una prórroga que no podrá exceder de dos meses.
Cuando la prestación consistiera en el pago de una cantidad de dinero, esta deberá ser al contado, salvo si el administrador consiguiera que el cocontratante del deudor admitiera el pago a plazos. Considerando los documentos de previsión de los que disponga, el administrador se asegurará de que dispondrá de los fondos necesarios a estos efectos en el momento en el que pida la ejecución. Si se tratara de un contrato de ejecución o pago escalonados en el tiempo, el administrador pondrá fin al mismo si considerara que no fuese a disponer de los fondos necesarios para cumplir con las obligaciones del plazo siguiente.
A falta de pago en las condiciones definidas en el párrafo anterior y si no hubiera acuerdo con el cocontratante para continuar las relaciones contractuales, el contrato quedará rescindido de pleno derecho y la Fiscalía, el administrador, el mandatario judicial o un interventor podrá recurrir al Tribunal para poner fin al periodo de observación.
El cocontratante deberá cumplir sus obligaciones a pesar de la falta de ejecución por parte del deudor de los compromisos anteriores a la resolución de apertura. El incumplimiento de estos compromisos sólo dará derecho en beneficio de los acreedores a su declaración en el pasivo.
Si el administrador no hiciera uso de la facultad de continuar el contrato, o pusiera fin al mismo en las condiciones del párrafo segundo, el incumplimiento podrá dar lugar a una indemnización por daños y perjuicios cuyo importe será declarado en el pasivo en beneficio de la otra parte. Esta podrá, sin embargo, aplazar la restitución de las cantidades pagadas en exceso por el deudor en ejecución del contrato hasta que se resuelva sobre la indemnización de daños y perjuicios.
No obstante cualquier disposición legal o cualquier cláusula contractual, no podrá derivarse del simple hecho de la apertura de un procedimiento de salvaguarda ninguna indivisibilidad, cancelación o rescisión del contrato.
Lo dispuesto en el presente artículo no será de aplicación a los contratos laborales.
Artículo L.622-14 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 30 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La rescisión del contrato de arrendamiento de los inmuebles arrendados al deudor y destinados a la actividad de la empresa se constatará o se acordará en los siguientes casos:
1° Cuando el administrador decida no continuar el contrato de arrendamiento y pida la rescisión del mismo. En tal caso, la rescisión será efectiva el día de dicha petición.
2° Cuando el arrendador pida la rescisión o haga constatar la rescisión del contrato de arrendamiento por falta de pago de los alquileres y de las cargas derivadas de una ocupación posterior a la resolución de apertura. En tal caso, el arrendador sólo podrá actuar al término del plazo de tres meses contados a partir de dicha resolución.
Si el pago de las cantidades adeudadas tuviera lugar antes de la expiración de dicho plazo, no habrá lugar a la rescisión.
No obstante cualquier cláusula en contrario, la falta de explotación durante el periodo de observación en uno o varios inmuebles alquilados por la empresa no conllevará la rescisión del contrato de arrendamiento.
Artículo L.622-15 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 31 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de cesión del contrato de arrendamiento, cualquier cláusula que imponga al cedente disposiciones solidarias con el cesionario se tendrá por no puesta.
Artículo L.622-16 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 32 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de procedimiento de salvaguarda, el arrendador solamente tendrá privilegio por los dos últimos años de alquileres antes de la resolución de apertura del procedimiento.
Si se rescindiera el contrato de alquiler, el arrendador tendrá además privilegio por el año en curso, por todo lo que concerniera a la ejecución del contrato y por la indemnización de daños y perjuicios que los Tribunales pudieran concederle.
Si no se rescindiera el contrato, el arrendador no podrá exigir el pago de los alquileres por vencer cuando las garantías que le hubieran sido dadas en el contrato fueran mantenidas o cuando las que hubieran sido proporcionadas desde la resolución de apertura fueran consideradas suficientes.
El Juez Comisario podrá autorizar al deudor o al administrador, según el caso, a vender muebles que formaran parte del mobiliario de los locales alquilados amenazados de próximo deterioro, de depreciación inminente o cuya conservación constituyera un dispendio, o cuya venta no pusiera en peligro la existencia del fondo ni el mantenimiento de las garantías suficientes para el arrendador.
Artículo L.622-17 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 33 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de
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CÓDIGO DE COMERCIO enero de 2006, bajo reserva art. 190)
I. - Los créditos contraídos válidamente con posterioridad a la resolución de apertura para satisfacer las necesidades del desarrollo del procedimiento o del periodo de observación, o como contrapartida de una prestación al deudor por su actividad profesional durante este periodo, se pagarán en su fecha de vencimiento.
II. - Cuando no se paguen en su fecha de vencimiento, estos créditos serán pagados prioritariamente sobre los demás créditos contraídos, independientemente de que estos últimos estén provistos o no de privilegios o garantías, con excepción de los créditos garantizados por el privilegio establecido en los artículos L.143-10, L.143-11, L.742-6 y L.751-15 del Código de Trabajo, de los garantizados por el privilegio de las costas judiciales y de los garantizados por el privilegio establecido por el artículo L.611-11 del presente Código.
III. - Su pago se hará según el siguiente orden: 1º Los créditos sobre los salarios cuyo importe no hubiera sido adelantado en aplicación de los artículos L.143-11-1
a L.143-11-3 del Código de Trabajo; 2º Las costas judiciales; 3º Los préstamos concedidos así como las créditos resultantes de la continuación de la ejecución de contratos en
curso de conformidad con lo dispuesto en el artículo L.621-13 y cuyo cocontratante aceptara recibir un pago aplazado. El Juez Comisario autorizará estos préstamos y plazos de pago hasta el límite necesario para la continuidad de la actividad durante el periodo de observación, siendo los mismos objeto de publicidad. En caso de rescisión de un contrato válidamente concluido, las indemnizaciones y penalizaciones estarán excluidas del beneficio del presente artículo;
4º Las cantidades cuyo importe hubiera sido adelantado en aplicación del apartado 3º del artículo L.143-11-1 del Código de Trabajo;
5º Los otros créditos, según su orden de prelación. IV. - Los créditos impagados perderán el privilegio que les confiere el presente artículo si no hubieran sido puestos
en conocimiento del mandatario judicial y del administrador, cuando este hubiera sido nombrado o, cuando estos órganos hubieran cesado en sus funciones, del auditor para la ejecución del plan o del liquidador, dentro del plazo de un año a contar desde el final del periodo de observación.
Artículo L.622-18 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Toda cantidad percibida por el administrador o el mandatario judicial que no fuera ingresada en las cuentas bancarias o postales del deudor para las necesidades de la continuidad de la actividad deberá ser ingresada inmediatamente en la cuenta de depósitos de la Caja de Depósitos y Consignaciones.
En caso de retraso, el administrador o el mandatario judicial deberá pagar el interés legal aumentado en cinco puntos por aquellas cantidades que no hubiera ingresado.
Artículo L.622-19 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cualquier cantidad pagada por la asociación mencionada en el artículo L.143-11-4 del Código de Trabajo en aplicación de los artículos L.143-11-1 a L.143-11-3 del mismo Código, deberá declararse a la administración fiscal.
Artículo L.622-20 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 34, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El mandatario judicial designado por el Tribunal será el único habilitado para actuar en nombre y en defensa de los intereses colectivos de los acreedores. No obstante, en caso de carencia del mandatario judicial, cualquier acreedor que fuera nombrado interventor podrá actuar en defensa de dichos intereses, con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
El mandatario judicial remitirá al Juez Comisario y al Ministerio Fiscal las observaciones que los interventores le presenten en cualquier momento del procedimiento.
Las cantidades percibidas tras las acciones ejercitadas por el mandatario judicial o, en su defecto, por el o los acreedores nombrados interventores entrarán a formar parte del patrimonio del deudor y serán destinadas, según las modalidades previstas, para la liquidación del pasivo, en caso de mantenimiento de la empresa.
Artículo L.622-21 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 35 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - La resolución de apertura de procedimiento suspenderá o prohibirá cualquier acción judicial por parte de los
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CÓDIGO DE COMERCIO acreedores cuyo crédito no estuviera mencionado en el punto I del artículo L.622-17 cuyo fin fuera:
1º Condenar el deudor al pago de una cantidad de dinero; 2º Resolver un contrato por falta de pago de una cantidad de dinero. II.- La resolución de apertura suspenderá o prohibirá asimismo cualquier vía de ejecución por parte de los
acreedores, tanto sobre los bienes muebles como sobre los inmuebles. III.- Como consecuencia de ello, se suspenderán los plazos concedidos bajo pena de caducidad o anulación de los
derechos.
Artículo L.622-22 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 36, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No obstante lo dispuesto en el artículo L.625-3, se suspenderán las acciones judiciales en curso hasta que el acreedor demandante proceda a la declaración de su crédito. Tras la declaración de los créditos del acreedor, se reanudarán de pleno derecho las acciones judiciales, tras citar en debida forma al mandatario judicial y, en su caso, al administrador o al auditor para la ejecución del plan, pero dichas acciones reclamarán solamente la constatación de los créditos y la determinación de su importe.
Artículo L.622-23 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las acciones judiciales y las vías de ejecución que no fueran las citadas en el artículo L.622-21 continuarán en contra del deudor durante el periodo de observación, tras la demanda del administrador y del mandatario judicial o tras una reanudación del procedimiento judicial por iniciativa de estos.
Artículo L.622-24 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 37, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
A partir de la publicación de la resolución judicial, todos los acreedores cuyo crédito haya sido contraído con anterioridad a la resolución de apertura, con excepción de los empleados del deudor, dirigirán la declaración de sus créditos al mandatario judiciaL.Los acreedores titulares de una garantía publicada o vinculados al deudor mediante un contrato publicado, serán advertidos personalmente o, si procede, en el domicilio elegido. El plazo de declaración comenzará a contar a partir de dicha notificación.
La declaración de los créditos podrá ser realizada por el acreedor o por el encargado o mandatario de su elección. La declaración de dichos créditos deberá ser realizada aún cuando estos no hubieran sido establecidos mediante
un título. Aquellos créditos cuyo importe no haya sido establecido de forma definitiva se declararán basándose en una valoración estimativa. Los créditos del Tesoro público y de los organismos de previsión y de seguridad social así como los créditos percibidos por los organismos citados en el artículo L.351-21 del Código de Trabajo que no fueran objeto de un título ejecutivo en el momento de su declaración serán admitidos provisionalmente por el importe declarado. En cualquier caso, las declaraciones del Tesoro y de la Seguridad Social serán siempre hechas ateniéndose a los impuestos y otros créditos no establecidos en la fecha de la declaración. No obstante los procedimientos judiciales o administrativos en curso, su determinación definitiva deberá efectuarse dentro del plazo previsto en el artículo L.624-1, bajo pena de caducidad.
Las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo estarán sujetas a las disposiciones del presente artículo para las cantidades que hubieran adelantado y que se les hubiera reembolsado en las condiciones previstas para los créditos suscritos antes de la resolución de apertura del procedimiento.
Estarán sujetos a lo dispuesto en el presente artículo los créditos contraídos válidamente con posterioridad a la resolución de apertura, que no fueran los mencionados en el punto I del artículo L.622-17, así como los créditos alimentarios Los plazos comenzarán a contar a partir de fecha de exigibilidad del crédito. No obstante, los acreedores cuyos créditos procedan de un contrato de ejecución sucesiva declararán la totalidad de las cantidades que les fueran adeudadas, con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
El plazo de declaración, por la parte civil, de los créditos procedentes de una infracción final, comenzará a contar a partir de la fecha en que se fije definitivamente el importe de los mismos.
Artículo L.622-25 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La declaración incluirá el importe del crédito al día de la resolución de apertura con indicación de las cantidades por vencer y de la fecha de su vencimiento. Determinará el tipo de privilegio o de garantía de la que eventualmente estuviera provisto dicho crédito.
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CÓDIGO DE COMERCIO Cuando se tratara de créditos en moneda extranjera, la conversión en euros tendrá lugar de acuerdo al cambio
legal en la fecha de la resolución de apertura. El acreedor certificará como cierto el crédito declarado, salvo si se derivara de un título ejecutivo. El Juez
Comisario podrá solicitar el visto bueno del auditor de cuentas o, en su defecto, del perito contable sobre la declaración del crédito. El rechazo del visto bueno tendrá que ser motivado.
Artículo L.622-26 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 38 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
A falta de declaración en los plazos fijados por decreto adoptado en Conseil d'Etat, los acreedores no serán admitidos en los repartos y dividendos, a menos que el Juez Comisario los eximiese de su preclusión al probarse que la falta de dicha declaración no es de su responsabilidad o que se debe a una omisión voluntaria del deudor en el listado previsto en el párrafo segundo del artículo L.622-6. En ese caso, sólo podrá participar en las distribuciones posteriores a su demanda.
La acción de revocación de la preclusión sólo podrá ser ejercida en el plazo de seis meses. Dicho plazo comenzará a contar a partir de la resolución de apertura o, para las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo, de la expiración del plazo durante el cual los créditos derivados del contrato laboral fueran garantizados por las mismas. Para los acreedores titulares de una garantía publicada o vinculados al deudor mediante un contrato publicado, el plazo empezará a contar a partir de la fecha en que reciban la notificación. Por excepción a lo dispuesto anteriormente, dicho plazo será de un año para los acreedores que se hallaran en la imposibilidad de conocer la existencia de su crédito antes de la expiración del plazo de seis meses arriba mencionado.
Artículo L.622-27 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, II, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si surgiera un conflicto sobre la totalidad o parte de un crédito que no fuera de los mencionados en el artículo L.621-1, el mandatario judicial informará de ello al acreedor interesado solicitándole que presente sus alegaciones. Si no diese respuesta dentro del plazo de treinta días quedará prohibida cualquier impugnación ulterior de la propuesta del mandatario judicial.
Artículo L.622-28 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 39 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La resolución de apertura interrumpirá el curso de los intereses legales y convencionales, así como de todos los intereses por retraso y recargos, a menos que se tratara de intereses derivados de contratos de préstamo concluidos por un periodo igual o superior a un año o de contratos que incluyeran un pago aplazado a un año o más. Las personas físicas fiadoras, tanto si fueran codeudoras como si hubieran concedido una garantía autónoma, podrán prevalerse de lo dispuesto en el presente párrafo.
La resolución de apertura suspenderá hasta la resolución judicial que apruebe el plan o dicte la liquidación, cualquier acción contra las personas físicas codeudoras o que hubieran concedido una fianza o una garantía autónoma. Posteriormente, el Tribunal podrá concederles plazos o un aplazamiento de pago dentro de un límite de dos años.
Los acreedores beneficiarios de estas garantías podrán adoptar medidas cautelares.
Artículo L.622-29 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 40 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La resolución de apertura no hará exigibles los créditos no vencidos en la fecha de su adopción. Cualquier cláusula en contrario se tendrá por no puesta.
Artículo L.622-30 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 41 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las hipotecas, pignoraciones y privilegios no podrán ser inscritos después de la resolución de apertura del procedimiento. Lo mismo ocurrirá con los actos y resoluciones judiciales traslativas o constitutivas de derechos reales, a menos que dichos actos hayan adquirido fecha cierta o que dichas decisiones hayan adquirido fuerza ejecutiva antes de la resolución de apertura.
Sin embargo, el Tesoro Público conservará su privilegio sobre los créditos que no estuviera obligado a inscribir en la fecha de la resolución de apertura y sobre los créditos no puestos al cobro después de dicha fecha si estos créditos hubieran sido declarados en las condiciones previstas en el artículo L.622-24.
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CÓDIGO DE COMERCIO Por excepción a lo dispuesto en el párrafo primero, el vendedor del fondo de comercio podrá inscribir su privilegio.
Artículo L.622-31 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 42 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El acreedor, tenedor de obligaciones suscritas, endosadas o garantizadas solidariamente por dos o varios codeudores sometidos a un procedimiento de salvaguarda, podrá declarar su crédito por el valor nominal de su título, en cada procedimiento.
Artículo L.622-32 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 42 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En cuanto a los pagos efectuados a los codeudores sometidos a un procedimiento de salvaguarda, estos no dispondrán de ninguna acción de regreso los unos contra otros, salvo que el total de las cantidades pagadas en virtud de cada procedimiento superase el total del crédito, capital y accesorio. En este caso, el excedente será devuelto a aquellos de los codeudores que tuvieran a los otros por garantes siguiendo la prelación de sus obligaciones.
Artículo L.622-33 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 42 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si el acreedor tenedor de obligaciones solidariamente suscritas por el deudor sometido a un procedimiento de salvaguarda y por otros codeudores hubiese recibido un adelanto sobre su crédito antes de la resolución de apertura, sólo podrá declarar su crédito con la deducción de este adelanto y conservará sus derechos contra el codeudor o el fiador sobre lo que le quedara de deuda.
El codeudor o el fiador que hubiera efectuado el pago parcial podrá declarar su crédito por todo lo que hubiera pagado en descargo del deudor.
CAPITULO III De la elaboración del balance económico, social y medioambiental Artículos L623-1 a
L623-3
Artículo L.623-1 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 43 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El administrador, con el concurso del deudor y la asistencia eventual de uno o varios peritos, quedará encargado de la elaboración de un informe sobre el balance económico y social de la empresa.
El balance económico y social precisará el origen, la importancia y la naturaleza de las dificultades de la empresa. En el caso en que la empresa explotara una o varias instalaciones clasificadas en el sentido del Título 1 del libro V
del Código de Medio Ambiente, se añadirá al balance económico y social un balance medioambiental que el administrador mandará realizar en las condiciones previstas por decreto adoptado en Conseil d'Etat.
A la vista de dicho balance, el administrador propondrá un plan de salvaguarda, sin perjuicio de la aplicación de las disposiciones del artículo L.622-10.
Artículo L.623-2 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 44 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario, no obstante cualquier disposición legal o reglamentaria en contrario, podrá solicitar a los auditores de cuentas, los expertos contables, los miembros y representantes del personal, las administraciones y organismos públicos, los organismos de prevención y de seguridad social, las entidades de crédito así como a los servicios encargados de centralizar los riesgos bancarios y los incidentes de pago, cualquier información que le permita tener una imagen exacta de la situación económica, financiera, social y patrimonial del deudor.
Artículo L.623-3 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 45, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El administrador recibirá del Juez Comisario todas las informaciones y documentos útiles para el cumplimiento de su misión y la de los peritos.
Cuando el procedimiento se abriera respecto de una empresa que se beneficiara del acuerdo amistoso homologado previsto en el artículo L.611-8 del presente Código o en el artículo L.351-6 del Código Rural, deberá remitirse al administrador el informe pericial mencionado en el artículo L.611-3 o, en su caso, el informe pericial y el
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CÓDIGO DE COMERCIO acta mencionados en los artículos L.351-3 y L.351-6 del Código Rural.
El administrador consultará al deudor y al mandatario judicial y oirá las declaraciones de cualquier persona que pudiera darle información sobre las perspectivas de saneamiento de la empresa, las condiciones de pago del pasivo y las condiciones sociales del mantenimiento de la actividad. Informará al deudor de ello y le solicitará igualmente sus observaciones y propuestas.
Informará del avance de sus gestiones al deudor, al mandatario judicial así como al comité de empresa, o, en su defecto, a los delegados del personaL.Consultará con estos y con deudor sobre las medidas que prevé proponer basándose en las informaciones y ofertas recibidas.
Cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, el administrador consultará con el colegio profesional o la autoridad competente de la que eventualmente dependa el deudor.
CAPITULO IV De la determinación del patrimonio del deudor Artículos L624-1 a
L624-18
Sección I De la comprobación y de la admisión de los créditos Artículos L624-1 a
L624-4
Artículo L.624-1 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 46, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el plazo determinado por el Tribunal, el mandatario judicial elaborará la lista de los créditos declarados con sus propuestas de admisión, denegación o remisión al órgano jurisdiccional competente, tras haber solicitado al deudor que presente sus observaciones. Remitirá dicha lista al Juez Comisario.
El mandatario judicial no podrá ser remunerado por aquellos créditos declarados que no figuraran en la lista elaborada en el plazo mencionado anteriormente, con excepción de los créditos declarados tras la finalización de dicho plazo, en aplicación de los dos últimos párrafos del artículo L.622-24.
Artículo L.624-2 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario decidirá, ante las propuestas del mandatario judicial, admitir o denegar los créditos o bien constatará que hay un procedimiento judicial en curso, o que la impugnación no es de su competencia.
Artículo L.624-3 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 47 I, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El acreedor, el deudor o el mandatario judicial tendrán la posibilidad de interponer un recurso contra las resoluciones que Juez Comisario tome en aplicación de la presente subsección.
Sin embargo, el acreedor cuyo crédito fuera discutido en totalidad o en parte y que no hubiera respondido al mandatario judicial dentro del plazo mencionado en el artículo L.621-27 no podrá ejercer su recurso contra la resolución del Juez Comisario cuando esta confirme la propuesta del mandatario judicial.
Por decreto adoptado en Conseil d'Etat se establecerán las condiciones y formas del recurso previsto en el párrafo primero.
Artículo L.624-4 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 47 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario resolverá en última instancia en los casos previstos en la presente sección cuando el valor del crédito en capital no sobrepase el límite de competencia en última instancia del Tribunal que hubiera abierto el procedimiento.
Sección II De los derechos del cónyuge Artículos L624-5 a
L624-8
Artículo L.624-5 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 48 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El cónyuge del deudor sometido a un procedimiento de salvaguarda determinará la consistencia de sus bienes personales según las normas de los regímenes matrimoniales y con arreglo a las condiciones previstas en el artículo
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CÓDIGO DE COMERCIO L.624-9
Artículo L.624-6 (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 165 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El mandatario judicial o el administrador, si demuestra por cualquier medio que los bienes adquiridos por el cónyuge del deudor lo han sido con valores suministrados por el mismo, podrá solicitar que las adquisiciones realizadas de esta forma sean devueltas al activo.
Artículo L.624-7 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las recuperaciones de bienes realizadas en aplicación del artículo L.621-111 sólo se ejercerán a cargo de los créditos e hipotecas con los que esos bienes estén legalmente gravados.
Artículo L.624-8 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 49 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El cónyuge del deudor que fuera comerciante, estuviera inscrito en el Registro Central de Artesanos o fuera agricultor en el momento de su matrimonio, en el año del mismo o en el siguiente, no podrá ejercitar ninguna acción en el procedimiento de salvaguarda en razón de las ventajas otorgadas por uno de los esposos al otro, en el contrato matrimonial o durante el matrimonio. Los acreedores, por su parte, no podrán prevalerse de los beneficios otorgados por uno de los esposos al otro.
Sección III De los derechos del vendedor de bienes muebles, de las reclamaciones y de
las restituciones Artículos L624-9 a L624-18
Artículo L.624-9 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 50 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La reclamación de los bienes muebles no podrá ser interpuesta hasta tres meses después de la publicación de la resolución de apertura del procedimiento.
Para los bienes que sean objeto de un contrato en curso el día de la apertura del procedimiento, el plazo empezará a contar a partir de la rescisión o del término del contrato,
Artículo L.624-10 (Introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I, art. 51 Diario Oficial de 27 de julio de 2005)
El propietario de un bien quedará dispensado de hacer reconocer su derecho de propiedad cuando el contrato relativo a dicho bien hubiera sido objeto de publicidad. Podrá reclamar la restitución de su bien con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Artículo L.624-11 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 52 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El privilegio y el derecho de reclamación establecidos por el apartado 4º del artículo 2102 del Código Civil en beneficio del vendedor de bienes muebles, así como la acción resolutoria, sólo se podrán ejercer hasta el límite de lo dispuesto en los artículos L.624-118 a L.624-18 del presente Código.
Artículo L.624-12 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 53 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Podrán ser reclamadas en totalidad o en parte, por resolución judicial o por efecto de una condición resolutoria adquirida, las mercancías cuya venta hubiera sido decidida antes de la resolución de apertura del procedimiento, si se encontraran en especie.
La reclamación deberá igualmente ser admitida aunque la resolución de la venta hubiera sido acordada o constatada por decisión judicial posterior a la resolución de apertura del procedimiento cuando la acción de reclamación o de resolución hubiera sido iniciada antes de la decisión judicial de apertura por parte del vendedor por una causa que no fuera la falta de pago del precio.
Artículo L.624-13 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Podrán reclamarse las mercancías expedidas al deudor mientras no se hubiera efectuado la entrega en sus almacenes o en los del comisionista encargado de venderlas por cuenta del deudor.
Sin embargo, dicha reclamación no será admisible, si, antes de su llegada, las mercancías hubiesen sido revendidas sin fraude, con facturas o títulos de transporte regulares.
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CÓDIGO DE COMERCIO Artículo L.624-14 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El vendedor podrá retener las mercancías que no hubieran sido entregadas o expedidas al deudor o a un tercero que actuara por cuenta del mismo.
Artículo L.624-15 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se podrán reclamar los efectos de comercio u otros títulos impagados remitidos por su propietario para ser cobrados o para ser especialmente asignados a determinados pagos, si se encontraran aún en manos del deudor.
Artículo L.624-16 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 54 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se podrán reclamar, siempre que se encuentren en especie, las mercancías consignadas a nombre del deudor, para ser vendidas por cuenta del propietario, o bien dejarlas en concepto de depósito.
Podrán igualmente ser reclamados los bienes vendidos con una cláusula de reserva de propiedad que subordine la transmisión de propiedad al pago íntegro del precio, si se encontraran en especie en el momento de la apertura del procedimiento. Esta cláusula, que podrá figurar en un escrito que regule un conjunto de operaciones comerciales concertadas entre las partes, tendrá que haberse concertado entre las partes en un escrito elaborado como máximo en el momento de la entrega. No obstante cualquier cláusula en contrario, la cláusula de reserva de propiedad será oponible al comprador y a los demás acreedores, salvo que las partes hubieran acordado por escrito descartarla o modificarla.
La reclamación en especie podrá ejercerse en las mismas condiciones sobre los bienes mobiliarios incorporados a otro bien mobiliario cuando su recuperación pueda efectuarse sin dañar dichos bienes ni el bien al que se hubieran incorporado. La reclamación en especie podrá ejercerse también sobre bienes fungibles cuando se encuentren en manos del comprador bienes de la misma especie y de la misma calidad.
En todos los casos, no habrá lugar a reclamación si, por decisión del Juez Comisario se pagara su precio inmediatamente. El Juez Comisario podrá asimismo conceder un plazo para el pago, previo consentimiento del acreedor demandante. El pago del precio se asimilará entonces al de los créditos mencionados en el punto I del artículo L.622-17.
Artículo L.624-17 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 55 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El administrador, o en su defecto el deudor previo acuerdo del mandatario judicial, podrá dar su consentimiento a la acción de reclamación o de restitución de un bien citado en la presente sección, con el acuerdo del deudor. A falta de acuerdo o en caso de litigio, la petición será trasladada al Juez Comisario que resolverá sobre el destino del contrato tras considerar las observaciones del acreedor, del deudor y del mandatario judicial al que se le hubiera encargado el asunto.
Artículo L.624-18 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 55 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Podrá reclamarse el precio o la parte del precio de los bienes citados en el artículo L 624-16 que no hubiera sido ni pagado, ni abonado por su valor, ni compensado en cuenta corriente entre el deudor y el comprador en la fecha de la resolución de apertura del procedimiento.
CAPITULO VI Del plan de salvaguarda Artículos L626-2 a
L626-1
Artículo L.626-1 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 59 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando exista una posibilidad seria de salvaguardar la empresa, el Tribunal establecerá a estos efectos un plan que pondrá fin al periodo de observación.
Este plan de salvaguarda podrá prever, si procede, la inclusión o la cesión de varias actividades. Las cesiones realizadas en aplicación del presente artículo estarán sujetas a lo dispuesto en la sección 1 del capítulo II del título IV. El mandatario judicial ejercerá las misiones confiadas al liquidador en virtud de estas disposiciones.
Sección I De la elaboración del proyecto de plan Artículos L626-2 a
L626-8
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CÓDIGO DE COMERCIO Artículo L.626-2 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 60 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El proyecto de plan determinará las perspectivas de saneamiento en función de las posibilidades y de las condiciones de ejercicio de las actividades, de la situación del mercado y de los medios de financiación disponibles.
Definirá las condiciones del pago del pasivo y las garantías eventuales que el empresario deba suscribir para asegurar su ejecución.
El proyecto expondrá y justificará el nivel y las perspectivas de empleo así como las condiciones sociales previstas para el mantenimiento de la actividad. Cuando el proyecto previera despidos por motivo económico, recordará las medidas ya tomadas y definirá las acciones que se deban emprender con el fin de facilitar la recolocación y la indemnización de aquellos trabajadores cuyo puesto de trabajo se viera amenazado. El proyecto tendrá en cuenta los trabajos preconizados por el balance medioambiental.
En el mismo se recogerán, se adjuntarán como anexo y se analizarán las ofertas de adquisición realizadas por terceros, relativas a una o varias actividades, y se indicarán las actividades que se propone incluir o detener.
Artículo L.626-3 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 61 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando el proyecto de plan prevea una modificación de capital, la junta general extraordinaria o la junta de socios y, si su aprobación fuera necesaria, las juntas especiales mencionadas en los artículos L.225-99 y L.228-35-6 o las juntas generales de sindicatos citadas en el artículo L.228-103 serán convocadas con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Si debido a las pérdidas constatadas en los documentos contables, los fondos propios llegaran a ser inferiores a la mitad del capital social, primero se instará a la junta a que restituya este capital hasta el importe propuesto por el administrador, el cual no podrá ser inferior a la mitad del capital sociaL.Se le instará igualmente a que decida la reducción y el aumento de capital en beneficio de una o varias personas que se comprometan a ejecutar el plan.
Las obligaciones a las que se comprometan los accionistas o socios o los nuevos suscriptores quedarán subordinadas, en su ejecución, a la aceptación del plan por parte del Tribunal.
Las cláusulas de autorización se tendrán por no puestas.
Artículo L.626-5 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 63 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las propuestas para el pago de los créditos serán comunicadas por el administrador al mandatario judicial, a los interventores, así como al comité de empresa o, en su defecto, a los delegados del personal, a medida que se vayan elaborando y bajo la supervisión del Juez Comisario.
El mandatario judicial recibirá individual o colectivamente el acuerdo de cada acreedor que haya declarado su crédito en conformidad con el artículo L.622-24, en los plazos y entregas que le sean propuestas. En caso de consultas por escrito, la falta de respuesta en el plazo de treinta días a partir de la recepción de la carta del mandatario judicial tendrá carácter de aceptación. Estas disposiciones serán aplicables a las instituciones citadas en el artículo L.143-11-4 del Código de Trabajo para las cantidades mencionadas en el párrafo cuarto del artículo L.621-24, incluso si sus créditos no hubieran sido aún declarados.
Artículo L.626-6 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 63 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las administraciones financieras, los organismos de seguridad social, las instituciones que gestionen el régimen de seguro de desempleo previsto por los artículos L.351-3 y siguientes del Código de Trabajo y las instituciones regidas por el libro IX del Código de Seguridad Social podrán conceder al deudor, paralelamente al esfuerzo realizado por otros acreedores, condonaciones de la totalidad o parte de sus deudas, en condiciones similares a las que en circunstancias normales del mercado le propondría un operador económico privado que se hallara en la misma situación.
En este supuesto, las administraciones financieras podrán conceder una condonación de los impuestos directos recaudados en beneficio del Estado y de las entidades territoriales, así como de diferentes gravámenes parafiscales del presupuesto del Estado adeudados por el deudor. En lo que refiere a los impuestos indirectos recaudados en beneficio del Estado y de las entidades territoriales, sólo podrán beneficiarse de una condonación los intereses por retraso, los recargos, las penalizaciones y las multas.
Las condiciones de condonación de la deuda serán establecidas por decreto adoptado en Conseil d'Etat. Los acreedores citados en el párrafo primero podrán asimismo decidir cesiones en el orden de prelación del
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CÓDIGO DE COMERCIO privilegio o de la hipoteca o del abandono de dichas garantías.
Artículo L.626-7 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 63 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El mandatario judicial elaborará un desglose de las respuestas dadas por los acreedores. Dicho desglose será enviado al administrador para que realice su informe y a los interventores.
Artículo L.624-4 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 62 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando la salvaguarda de la empresa lo requiera, el Tribunal, a instancia del Ministerio Fiscal, podrá subordinar la adopción del plan a la sustitución de uno o varios dirigentes de la empresa, salvo cuando el deudor ejerciera una profesión liberal sujeta a un estatuto legal o reglamentario.
Para ello y en las mismas condiciones, el Tribunal podrá acordar la intransferibilidad de las participaciones sociales, títulos de capital o valores mobiliarios que den acceso al capital, poseídos por uno o varios dirigentes de hecho o de derecho, y decidir que el derecho de voto vinculado a los mismos sea ejercido por un mandatario judicial designado a estos efectos por un periodo que determine dicho TribunaL.Podrá asimismo ordenar la cesión de estas participaciones sociales, títulos de capital o valores mobiliarios que den acceso al capital, poseídos por las mismas personas, fijándose el precio de cesión mediante tasación judicial.
Para la aplicación del presente artículo, se oirá o citará en debida forma a los dirigentes y a los representantes del comité de empresa o, en su defecto, a los delegados del personal.
Artículo L.626-8 (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 64, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se informará y consultará al deudor, al comité de empresa o, en su defecto, a los delegados del personal, al o a los interventores y al mandatario judicial sobre el informe que reciban del administrador y que presente el balance económico y social y el proyecto del plan.
Dicho informe se enviará simultáneamente a la autoridad administrativa competente en materia de derecho laboraL.Se enviará al Tribunal y a la autoridad administrativa mencionada anteriormente el acta de la reunión en cuyo orden del día estuviera inscrita la consulta de los representantes del personal.
El informe se remitirá asimismo al Ministerio Publico.
Sección II De la resolución judicial de aprobación del plan y de la ejecución del mismo Artículos L626-9 a
L626-28
Artículo L.626-9 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 65 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Tras haber oído o citado en debida forma al deudor, al administrador, al mandatario judicial, a los interventores y a los representantes del comité de empresa o, en su defecto, a los delegados del personal, el Tribunal resolverá tras estudiar el informe del administrador y tras recabar el dictamen del Ministerio FiscaL.Cuando el procedimiento se haya abierto en beneficio de un deudor que tenga un número de trabajadores o una cifra de negocios superiores a los umbrales fijados por decreto adoptado en Conseil d'Etat, los debates deberán celebrarse en presencia del Ministerio Fiscal.
Artículo L.626-10 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 66 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El plan nombrará a las personas comprometidas en su ejecución y mencionará el conjunto de obligaciones que hubieran suscrito y que fueran necesarias para la salvaguarda de la empresa. Estas obligaciones se referirán al
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CÓDIGO DE COMERCIO porvenir de la actividad, a las condiciones del mantenimiento y de la financiación de la empresa, del pago del pasivo anterior a la resolución de apertura así como, si procediera, a las garantías aportadas para asegurar su ejecución.
El plan expondrá y justificará el nivel y las perspectivas de empleo y las condiciones sociales previstas para el mantenimiento de la actividad.
Las personas que ejecuten el plan, incluso como socios, no podrán ser obligadas a asumir más cargas que las obligaciones que hubieran suscrito a lo largo de su preparación, sin perjuicio de lo dispuesto en los artículos L.626-3 y L.626-16.
Artículo L.626-11 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 67 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La resolución de aprobación del plan convertirá sus disposiciones en oponibles frente a todos. A excepción de las personas jurídicas, los codeudores y las personas que hayan concedido una fianza o una
garantía autónoma podrán prevalerse de las mismas.
Artículo L.626-12 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 68 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Sin perjuicio de la aplicación de las disposiciones del artículo L.628-18, el Tribunal fijará la duración del plan. Dicha duración no podrá exceder de diez años. Cuando el deudor sea un agricultor, no podrá exceder de quince años.
Artículo L.626-13 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 69 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La aprobación del plan por el Tribunal conllevará la suspensión de pleno derecho de la inhabilitación para emitir cheques, de conformidad con lo dispuesto en el artículo L.131-73 del Código Monetario y Financiero, cuando esta hubiera sido provocada por el rechazo de pago de un cheque emitido antes de la resolución de apertura del procedimiento.
Artículo L.626-14 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 70 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En la resolución que apruebe o modifique el plan, el Tribunal podrá decidir que los bienes que considere indispensables para el mantenimiento de la empresa no puedan cederse sin su autorización durante un período fijado por éL.El plazo durante el cual dichos bienes no podrán cederse no podrá exceder del de la duración del plan.
Dicha intransferibilidad temporal será objeto de publicidad en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Cualquier acto realizado infringiendo las disposiciones del primer párrafo será anulado a petición de cualquier interesado o del Ministerio Fiscal, debiéndose presentar el recurso de anulación dentro del plazo de tres años contados a partir de la conclusión del acto. Cuando el acto haya sido objeto de publicidad, el plazo empezará a contar a partir de la misma.
Artículo L.626-15 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 71 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El plan precisará las modificaciones que fuera necesario efectuar en los estatutos para la reorganización de la empresa.
Artículo L.626-16 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 72 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si fuera necesario, la resolución de aprobación del plan encargará al administrador que convoque, con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat, a la junta competente para que aplique las modificaciones previstas por el plan.
Artículo L.626-17
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CÓDIGO DE COMERCIO (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los socios o accionistas estarán obligados a desembolsar el capital que suscriban en un plazo fijado por el TribunaL.En caso de desembolso inmediato podrán beneficiarse de la compensación en forma de deducciones o plazos hasta el importe de los créditos admitidos y con el límite de la reducción de la que sean objeto en el plan.
Artículo L.626-18 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 73 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal levantará acta de los plazos y condonaciones aceptados por los acreedores en las condiciones previstas en el párrafo segundo del artículo L.626-5 y en el artículo L.626-6. Estos plazos y condonaciones podrán, en su caso, ser reducidos por el TribunaL.Para los demás acreedores, el Tribunal impondrá plazos de pago uniformes, sin perjuicio, en lo que se refiere a los créditos a plazo fijo, de los plazos superiores estipulados por las partes antes de la apertura del procedimiento, los cuales podrán exceder del periodo de duración del plan.
El primer pago no podrá producirse después de cumplido el plazo de un año. Después del segundo año, el importe de cada una de las anualidades previstas por el plan no podrá ser inferior al
5% del pasivo admitido, salvo en el caso de una explotación agrícola. En el caso de los contratos de leasing, estos plazos se darán por finalizados si antes de su expiración, el
beneficiario de dicho contrato ejerciera la opción de compra. Esta no podrá ejercerse si, con la deducción de los descuentos aceptados, no se pagara la totalidad de las cantidades debidas en virtud del contrato.
Artículo L.626-19 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 74 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El plan podrá prever una opción para los acreedores que consista en pagos en plazos uniformes más breves pero con una reducción proporcional del importe del crédito.
La reducción del crédito no será definitivamente adquirida hasta el pago, en el plazo fijado, del último pago previsto en el plan.
Artículo L.626-20 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Por excepción a lo dispuesto en los artículos L.626-18 y L.626-19, no podrán ser objeto de reducciones o de concesión de plazos:
1º Los créditos garantizados por el privilegio determinado en los artículos L.143-10, L.143-11, L.742-6 y L.751-15 del Código de Trabajo;
2º Los créditos derivados de una relación laboral garantizados por los privilegios previstos en el apartado 4º del artículo 2101 y en el apartado 2º del artículo 2104 del Código Civil cuando el importe de estos no hubiera sido adelantado por las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo o no hubiera sido objeto de una subrogación.
II. - Hasta el límite del 5% del pasivo estimado, se reembolsarán sin reducciones ni concesión de plazos los créditos menores siguiendo el orden creciente de su importe siempre y cuando ninguno supere un determinado importe fijado por decreto. Esta disposición no se aplicará cuando el importe de los créditos pertenecientes a una misma persona exceda de la décima parte del porcentaje antes fijado o cuando se hubiera concedido una subrogación o se hubiera efectuado un pago para otra persona.
Artículo L.626-21 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 75 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La inscripción de un crédito en el plan y la concesión de plazos o reducciones por parte del acreedor no presupondrá la admisión definitiva del crédito en el pasivo.
Las cantidades a repartir que correspondan a los créditos en litigio no serán pagadas hasta obtener la admisión definitiva de estos créditos en el pasivo. Sin embargo, la instancia judicial competente para resolver dicho litigio podrá decidir que el acreedor participe provisionalmente, en totalidad o en parte, en las distribuciones realizadas antes de la admisión definitiva.
Salvo disposición legal en contrario, los pagos previstos por el plan serán realizados en el domicilio del acreedor. El Tribunal establecerá las modalidades para el pago de los dividendos decididos por el plan. Los dividendos serán
pagados al auditor para la ejecución del plan, quien procederá a su reparto.
Artículo L.626-22 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 76 Diario Oficial de 27 de julio de 2005, con
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CÓDIGO DE COMERCIO entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de venta de un bien sujeto a privilegio especial, de una pignoración o de una hipoteca, la parte proporcional del precio correspondiente a los créditos garantizados por estas garantías será ingresada en la cuenta de la Caja de Depósitos y Consignaciones y los acreedores beneficiarios de estas garantías o titulares de un privilegio general serán pagados sobre el precio tras el abono de los créditos garantizados por el privilegio establecido en los artículos L.143-10, L.143-11, L.742-6 y L.751-15 del Código de Trabajo.
Recibirán los dividendos por vencer según el plan, reducidos en función del pago anticipado según el orden de prelación existente entre ellos.
Si un bien estuviera sujeto a un privilegio, una pignoración o una hipoteca, podrán ser sustituidos por cualquier otra garantía en caso de necesidad, siempre que esta presentara ventajas equivalentes. Si no se llegara a un acuerdo, el Tribunal podrá ordenar dicha sustitución.
Artículo L.626-23 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 77 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de cesión parcial de activos, el precio será abonado al deudor sin perjuicio del artículo L.626-22.
Artículo L.626-24 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 78, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal podrá confiarle al administrador las misiones que considere necesarias para la aplicación del plan. El mandatario judicial seguirá ejerciendo su función durante el tiempo necesario para la comprobación y la
determinación definitiva de la masa pasiva.
Artículo L.626-25 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 79 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal nombrará al administrador o al mandatario judicial para que ejerza las funciones de auditor encargado de velar por la ejecución del plan, por el periodo establecido en el artículo L.626-12. Si fuera necesario, el Tribunal podrá nombrar a varios auditores.
Las acciones judiciales que se hubieran iniciado antes de la resolución de aprobación del plan y en las que interviniera el administrador o el mandatario judicial serán continuadas por el auditor para la ejecución del plan o, si este ya no estuviera en funciones, por un mandatario judicial nombrado a estos efectos por el Tribunal.
El auditor para la ejecución del plan estará igualmente facultado para ejercitar acciones en favor del interés colectivo de los acreedores.
El auditor para la ejecución del plan podrá acceder a todos los documentos e informaciones útiles para realizar su misión.
Este responderá ante el presidente del Tribunal y ante el Ministerio Publico del incumplimiento del plan. Informará de ello al comité de empresa o, en su defecto, a los delegados del personal.
Toda cantidad que perciba el auditor para la ejecución del plan será inmediatamente ingresada en la cuenta de depósito de la Caja de Depósitos y Consignaciones. En caso de retraso, el auditor para la ejecución del plan deberá pagar el interés legal aumentado en cinco puntos por aquellas cantidades que no hubiera ingresado.
El auditor para la ejecución del plan podrá ser sustituido por el Tribunal, de oficio o a instancia del Ministerio Fiscal.
Artículo L.626-26 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 80 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Sólo el Tribunal podrá decidir una modificación sustancial de los objetivos o los medios del plan, a petición del deudor y tras estudiar el informe del auditor para la ejecución del plan.
El Tribunal resolverá tras haber recabado el dictamen del Ministerio Fiscal, y tras haber oído o citado en debida forma al deudor, al auditor para la ejecución del plan, a los interventores, a los representantes del comité de empresa o, en su defecto, a los delegados del personal, así como a cualquier persona interesada.
Artículo L.626-27 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 81 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - El Tribunal que apruebe el plan, previo dictamen del Ministerio Publico, podrá poner fin a dicho plan si el deudor no cumpliera sus compromisos dentro de los plazos fijados en el mismo. Cuando el incumplimiento se derivara del impago de los dividendos por parte del deudor y el Tribunal no pusiera fin al plan, el auditor para la ejecución del plan procederá al pago de dichos dividendos, de conformidad con lo establecido en el plan.
Si se constatara el estado de insolvencia del deudor durante la ejecución del plan, el Tribunal que hubiera aprobado dicho plan, previo dictamen del Ministerio Fiscal, pondrá fin al mismo y dictará la resolución judiciaL.
La resolución que ponga fin al plan dará por finalizadas las operaciones y declarará la caducidad de cualquier plazo de pago que hubiera sido concedido.
II. - En los casos mencionados en el punto I, el Tribunal conocerá a instancia de un acreedor, del auditor para la ejecución del plan o del Ministerio FiscaL.Podrá igualmente conocer de oficio.
III. - Tras la rescisión del plan y la incoación o apertura del nuevo procedimiento, los acreedores sometidos a dicho
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CÓDIGO DE COMERCIO plan quedarán dispensados de la obligación de declarar sus créditos y garantías. Los créditos inscritos en dicho plan será admitidos de pleno derecho, tras el descuento de las cantidades percibidas.
Artículo L.626-28 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 82 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando quede establecido que los compromisos establecidos en el plan u ordenados por el Tribunal se han cumplido, este podrá constatar la finalización de la ejecución del plan a petición del deudor o de cualquier persona interesada.
Sección III De los comités de acreedores Artículos L626-29 a
L626-35
Artículo L.626-29 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 83 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los deudores cuyas cuentas hubieran sido certificadas por un auditor de cuentas o verificadas por un experto contable y cuyo número de empleados o cifra de negocios fueran superior a los umbrales fijados por decreto adoptado en Conseil d'Etat, estarán sujetos a lo dispuesto en la presente sección.
El Juez Comisario podrá autorizar, a petición del deudor o del administrador, que lo dispuesto en la presente sección también se aplique cuando el número de empleados o la cifra de negocios esté por debajo de los umbrales en cuestión.
Artículo L.626-30 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 83 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El administrador judicial reunirá a las entidades de crédito y a los principales proveedores de bienes o servicios en dos comités de acreedores, dentro del plazo de treinta días a contar desde la resolución de apertura del procedimiento. Cada proveedor de bienes o servicios será miembro de pleno derecho del comité constituido por los principales acreedores cuando sus créditos representen más del 5% del total de los créditos de los proveedores. Los demás proveedores que fueran solicitados por el administrador también podrán ser miembros de dichos comités.
El deudor presentará a estos propuestas para elaborar el proyecto de plan mencionado en el artículo L.626-2, dentro del plazo de dos meses a contar desde su constitución, pudiendo el Juez Comisario renovar dicho plazo una vez a petición del deudor o del administrador.
Tras discusión con el deudor y el administrador judicial, los comités se pronunciarán sobre dicho proyecto, modificado en su caso para tener en cuenta dichas discusiones, como máximo en el plazo de treinta días a partir de la fecha de transmisión de las propuestas del deudor. Las decisiones de los comités se tomarán por mayoría de sus miembros, que deberá representar al menos los dos tercios del importe de los créditos del conjunto de los miembros del comité, calculándose dicho porcentaje a partir de las cuentas proporcionadas por el deudor y certificadas por los auditores de cuentas o, cuando no se hubieran nombrado auditores de cuentas, verificadas por un experto contable.
El proyecto de plan adoptado por los comités no estará sujeto a lo dispuesto en el artículo L.626-12 ni a lo dispuesto en los párrafos segundo y tercero del artículo L.626-18. Las entidades territoriales y sus organismos públicos no podrán ser miembros del comité constituido por los principales proveedores.
Artículo L.626-31 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 83 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando el proyecto de plan hubiera sido adoptado por los comités de conformidad a lo dispuesto en el artículo L.626-30, el Tribunal se asegurará de que se respeten los intereses del conjunto de los acreedores. En dicho caso, el Tribunal aprobará el plan de conformidad con el proyecto adoptado y conforme a las modalidades definidas en la sección 2 del presente capítulo. Su resolución dará lugar a la aplicación por parte de todos los miembros de las propuestas aceptadas por cada uno de los comités.
Por excepción a lo dispuesto en el artículo L.626-26, sólo se podrá proceder a una modificación sustancial de los objetivos o los medios del plan aprobado por el Tribunal en virtud del párrafo primero, siguiendo las modalidades definidas en la presente sección.
Artículo L.626-32 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 83 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de haber obligacionistas, el administrador judicial convocará a los representantes del sindicato, si este existiese, dentro del plazo de quince días a contar desde la fecha de transmisión del proyecto de plan a los comités, con objeto de exponerles dicho proyecto de plan.
Los representantes del sindicato de obligacionistas convocarán posteriormente una junta general de obligacionistas, dentro del plazo de quince días, para deliberar sobre dicho proyecto. No obstante, en caso de carencia o ausencia de los representantes del sindicato constatada por el Juez Comisario, el administrador convocará la junta general de obligacionistas.
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CÓDIGO DE COMERCIO La deliberación podrá acordar el abandono total o parcial de los créditos de los obligacionistas.
Artículo L.626-33 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 83 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los acreedores que no fueran miembros de los comités creados en aplicación del artículo L.626-30 serán consultados según lo dispuesto en los artículos L.626-5 a L.626-7. El administrador judicial ejercerá a estos efectos la misión confiada al mandatario judicial por dichas disposiciones.
Las disposiciones del plan relativas a los acreedores que no fueran miembros de los comités creados en aplicación del artículo L.626-30 estarán sujetas a lo dispuesto en los artículos L.626-12 y L.626-18 a L.626-20.
Artículo L.626-34 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 83 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando uno de los comités no se hubiera pronunciado sobre un proyecto de plan dentro de los plazos previstos, o hubiera rechazado las propuestas realizadas por el deudor, o cuando el Tribunal no hubiera aprobado el plan en aplicación de lo dispuesto en el artículo L.626-31, se reanudará el procedimiento para preparar un plan en las condiciones previstas en los artículos L.626-5 a L.626-7, al objeto de que se apruebe dicho plan de conformidad con lo dispuesto en los artículos L.626-12 y L.626-18 a L.626-20. El procedimiento se reanudará con arreglo a las mismas modalidades cuando el deudor no hubiera presentado sus propuestas de plan a los comités dentro de los plazos previstos.
Artículo L.626-35 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 83 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Por decreto adoptado en Conseil d'Etat se establecerán las condiciones de aplicación de la presente sección.
CAPITULO VII Disposiciones especiales aplicables en caso de no designación de administrador
judicial Artículos L627-1 a L627-6
Artículo L.627-1 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 84 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Lo dispuesto en el presente capítulo será de aplicación en caso de no designación de administrador judicial en aplicación de lo dispuesto en el penúltimo párrafo del artículo L.621-4. Las demás disposiciones del presente título serán aplicables siempre y cuando no sean contrarias a las del presente capítulo.
Artículo L.627-2 (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 85 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Tras el visto bueno del mandatario judicial, el deudor ejercerá la facultad que tiene el administrador para continuar contratos en curso en aplicación de lo dispuesto en el artículo L.622-13. En caso de desacuerdo, el Juez Comisario conocerá a instancia de cualquier persona interesada.
Artículo L.627-3 (Ley nº 2001-1275 de 28 de diciembre de 2001 art. 152 Ley de finanzas para 2002 Diario Oficial de 29 de diciembre de 2001) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 86 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Durante el periodo de observación, el deudor elaborará un proyecto de plan con la eventual ayuda de un perito nombrado por el Tribunal.
El deudor comunicará al mandatario judicial y al Juez Comisario las propuestas de pago del pasivo previstas en el artículo L.626-5 y procederá a proporcionar las informaciones y a realizar las consultas previstas en el párrafo tercero del artículo L.623-3 y L.626-8.
Para la aplicación del artículo L.626-3, la junta general extraordinaria o la junta de socios y, si su aprobación fuera necesaria, las juntas especiales mencionadas en los artículos L.225-99 y L.228-35-6 o las juntas generales de sindicatos citadas en el artículo L.228-103 serán convocadas con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat. El Juez Comisario fijará el importe del aumento de capital propuesto a la junta para reconstituir los fondos propios.
Artículo L.627-4
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CÓDIGO DE COMERCIO (Disposición nº 2000-916 de 19 de septiembre de 2000 art. 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 87 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Una vez depositado en la Secretaría del Tribunal el proyecto de plan por el deudor, el Tribunal resolverá tras estudiar el informe del Juez Comisario.
Artículo L627-5 Cualquier despido previsto por el administrador, el empresario o el liquidador, según el caso, del representante de
los empleados mencionados en los artículos L. 621-8, L. 621-135 y L. 622-2 será obligatoriamente sometido al comité de empresa, que emitirá su dictamen sobre dicho proyecto de despido.
El despido sólo podrá producirse con la autorización del inspector de trabajo del que dependa el establecimiento. Cuando no exista comité de empresa en el establecimiento, se instará directamente al inspector de trabajo.
Sin embargo, en caso de falta grave, el administrador, el empresario o el liquidador, según el caso, tendrá la facultad de acordar la suspensión temporal inmediata del interesado esperando la resolución definitiva. En caso de denegación del despido se anulará la suspensión temporal y sus efectos quedarán suprimidos de pleno derecho.
La protección instituida a favor del representante de los trabajadores para el ejercicio de su misión fijada en el artículo L.621-36 finalizará cuando todas las cantidades pagadas al representante de los acreedores por las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo, en aplicación del párrafo décimo del artículo L.143-11-7 de dicho Código, hayan sido devueltas por éste último a los trabajadores.
Cuando el representante de los trabajadores ejerza las funciones del comité de empresa o, en su defecto, de los delegados del personal, en aplicación del artículo L. 621-135, la protección terminará al final de la última audición o consulta prevista por el procedimiento de suspensión de pagos.
Artículo L627-6 (Introducido por la Ley nº 2003-7 de 3 de enero de 2003 Artículo 47 Diario Oficial de 4 de enero de 2003)
Los fondos detentados por las comunidades de propietarios en concepto de los procedimientos de suspensión de pagos o de liquidación de bienes regulados por la Ley n° 67-563 de 13 de julio de 1967 sobre el procedimiento de suspensión de pagos, la liquidación de bienes, la quiebra personal y las bancarrotas serán inmediatamente ingresados en la cuenta de depósito de la Caja de Depósitos y Consignaciones. En caso de retraso, el liquidador deberá pagar un interés por las cantidades que no haya ingresado, aplicando una tasa igual al interés legal incrementado en cinco puntos.
TITULO III DEL SANEAMIENTO JUDICIAL (REDRESSEMENT JUDICIAIRE) Artículos L631-1 a
L631-22
CAPITULO I De la apertura y del desarrollo del procedimiento de saneamiento judicial
(redressement judiciaire) Artículos L631-1 a L631-22
Artículo L.631-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 88 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se abrirá un procedimiento de saneamiento judicial a todo deudor, mencionado en los artículos L.631-2 y L.631-3 que, ante la imposibilidad de hacer frente al pasivo exigible con el activo del que dispone, se encontrase en estado de insolvencia.
El procedimiento de saneamiento judicial está destinado a permitir la continuidad de la actividad de la empresa, el mantenimiento del empleo y la liquidación del pasivo. El mismo dará lugar a un plan aprobado por resolución judicial tras un periodo de observación y, en su caso, a la constitución de dos comités de acreedores, de conformidad con lo dispuesto en los artículos L.626-29 y L.626-30.
Artículo L.631-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 88 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El procedimiento de saneamiento judicial será aplicable a cualquier comerciante, a cualquier persona inscrita en el Registro Central de Artesanos, a cualquier agricultor, a cualquier persona física que ejerza una actividad profesional autónoma, incluyendo una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, así como a cualquier persona jurídica de derecho privado.
No podrá incoarse un nuevo procedimiento de saneamiento judicial respecto de una persona que ya estuviera incursa en un procedimiento de este tipo, o en un procedimiento de de liquidación judicial, en tanto no se haya puesto fin a las operaciones del plan que se derive del mismo o en tanto el procedimiento de liquidación no haya finalizado.
Artículo L.631-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 88 Diario Oficial de 27 de julio de 2005, con entrada
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CÓDIGO DE COMERCIO en vigor el 1 de enero de 2006, bajo reserva art. 190)
El procedimiento de saneamiento judicial se abrirá asimismo a las personas mencionadas en el párrafo primero del artículo L.631-2 tras el cese de su actividad profesional cuando la totalidad o parte de su pasivo se derivara de la misma.
En caso de fallecimiento de un comerciante, una persona inscrita en el Registro Central de Artesanos, un agricultor o cualquier otra persona física que ejerza una actividad profesional autónoma, incluyendo una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, que se hubiera encontrado en estado de insolvencia, el Tribunal conocerá en el plazo de un año a partir de la fecha del fallecimiento, bien a instancia de un acreedor, sea cual fuere la naturaleza de su crédito, bien a instancia del Ministerio FiscaL.El Tribunal podrá igualmente conocer de oficio en el mismo plazo y a instancia de cualquier heredero del deudor sin ninguna condición de plazo.
Artículo L.631-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 89 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El deudor deberá solicitar la apertura de este procedimiento como máximo en los cuarenta y cinco días siguientes a la declaración de insolvencia, si en el transcurso de dicho plazo no hubiera solicitado la apertura de un procedimiento de conciliación.
En caso de fracasar el procedimiento de conciliación y cuando el informe del conciliador ponga en evidencia el estado de insolvencia del deudor, el Tribunal podrá declarar de oficio la apertura de un procedimiento de saneamiento judiciaL.
Artículo L.631-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 89 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal, de oficio o a instancia del Ministerio Fiscal, podrá declarar la apertura de un procedimiento de saneamiento judicial aún cuando no hubiera ningún procedimiento de conciliación en curso.
Sin perjuicio de esto último, el procedimiento podrá asimismo ser incoado a requerimiento de un acreedor, sea cual fuere la naturaleza de su crédito. No obstante, cuando el deudor haya cesado su actividad profesional, este requerimiento deberá realizarse dentro del plazo de un año a contar desde:
1° La baja en el Registro de Comercio y de Sociedades Si se tratara de una persona jurídica, el plazo empezará a contar desde la baja consiguiente a la publicación del cierre de las operaciones de liquidación;
2° El cese de la actividad, si se tratara de una persona inscrita en el Registro Central de Artesanos, de un agricultor o de una persona física que ejerza una actividad profesional autónoma, incluyendo una profesión liberal, sujeta a un estatuto legal o reglamentario o cuyo título esté protegido;
3º Si se tratara de una persona jurídica no sujeta a inscripción, la publicación del cierre de la liquidación, Además, el procedimiento sólo podrá abrirse contra un deudor que ejerza una actividad agrícola no constituida en
forma de sociedad mercantil cuando, previamente al requerimiento de apertura del procedimiento por parte de un acreedor, se presentara ante el presidente del Tribunal de Grande Instance una solicitud de nombramiento de un conciliador en aplicación del artículo L.351-2 del Código Rural.
Artículo L.631-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 89 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El comité de empresa o, en su defecto, los delegados del personal podrán comunicar al presidente del Tribunal o al Ministerio Fiscal cualquier hecho que revele el estado de insolvencia del deudor.
Artículo L.631-7 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 89 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los artículos L.621-51 a L.621-2, L.621-3 se aplicarán al procedimiento de saneamiento judicial.
Artículo L.631-8 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 89 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal determinará la fecha de declaración de insolvencia. A falta de mención correspondiente, la insolvencia se considerará declarada en la fecha de la resolución que la constate.
Podrá ser aplazado una o varias veces, sin poder ser anterior en más de dieciocho meses a la fecha de la resolución que constate el estado de insolvencia. Salvo en caso de fraude, no podrá aplazarse a una fecha anterior a la decisión definitiva de homologación del acuerdo amistoso en aplicación del punto II del artículo L.611-8.
El Tribunal conocerá del asunto a instancia del administrador, del mandatario judicial o del Ministerio FiscaL.Se pronunciará tras haber oído o citado en debida forma al deudor.
Cualquier solicitud de modificación de fecha deberá ser presentada al Tribunal dentro del plazo de un año a contar desde la fecha de la resolución de apertura del procedimiento.
Artículo L.631-9 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 89 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los artículos L.621-4 a L.621-11 se aplicarán al procedimiento de saneamiento judiciaL.El Tribunal podrá actuar de
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CÓDIGO DE COMERCIO oficio en los casos mencionados en los párrafos tercero y cuarto del artículo L.621-4.
Artículo L.631-10 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 90 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
A partir de la resolución de apertura, los dirigentes de hecho o de derecho, remunerados o no, sólo podrán ceder sus participaciones sociales, títulos de capital o valores mobiliarios que den acceso al capital, los cuales representen sus derechos sociales en la sociedad que haya sido objeto de la resolución de apertura, en las condiciones establecidas por el Tribunal, bajo pena de nulidad.
Los títulos de capital o valores mobiliarios que den acceso al capital serán transferidos a una cuenta especial bloqueada, abierta por el administrador a nombre del titular y administrada por la sociedad o el intermediario financiero, según el caso. No se podrá efectuar ningún movimiento en esta cuenta sin la autorización del Juez Comisario.
El administrador hará mencionar, en su caso, en los registros de la persona jurídica la intransferibilidad de las participaciones de los dirigentes.
Artículo L.631-11 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 91 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario determinará el importe de la remuneración correspondiente a las funciones ejercidas por el deudor, si se trata de una persona física, o por los dirigentes de la persona jurídica.
En ausencia de remuneración, las personas mencionadas en el párrafo anterior podrán obtener, sobre el activo, subsidios para ellos y sus familias determinados por el Juez Comisario.
Artículo L.631-12 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Además de las facultades que les fueran atribuidas por el presente título, la misión de los administradores será determinada por el Tribunal.
Este último les encargará que, juntos o por separado, ayuden al deudor en todos los actos de gestión, o que se encarguen por sí solos, íntegramente o en parte, de la administración de la empresa. Cuando el o los administradores tengan por misión la administración íntegra de la empresa y se alcancen todos los umbrales mencionados en el párrafo cuarto del artículo L.621-4, el Tribunal nombrará a uno o varios peritos para que estos les ayuden en sus funciones de gestión. En los demás casos, el o los administradores tendrán la facultad de nombrar a los mismos. El presidente del Tribunal determinará el importe de la remuneración de los peritos, con cargo al procedimiento.
En su misión, el administrador estará obligado a respetar las obligaciones legales y convencionales correspondientes al deudor.
El Tribunal podrá en todo momento modificar la misión del administrador, bien a petición de este, del mandatario judicial, del Ministerio Fiscal, bien de oficio.
El administrador gestionará con su firma las cuentas bancarias o postales de las que fuera titular el deudor cuando este último haya sido objeto de las inhabilitaciones previstas en los artículos L.131-72 o L.163-6 del Código Monetario y Financiero.
Artículo L.631-13 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Desde la apertura del procedimiento, se admitirá que los terceros propongan al administrador ofertas que persigan el mantenimiento de la actividad de la empresa, mediante una cesión total o parcial de la misma, según lo dispuesto en la sección 1 del capítulo II del título IV.
Artículo L.631-14 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Lo dispuesto en los artículos L.622-2 a L.622-9 y L.622-13 a L.622-33 se aplicará al procedimiento de saneamiento judicial.
II. - No obstante, las personas físicas codeudoras o las que hayan concedido una fianza o una garantía autónoma no podrán prevalerse de lo dispuesto en el párrafo primero del artículo L.622-28.
Artículo L.631-15 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Como máximo tras finalizar el plazo de dos meses a contar desde la fecha de resolución de apertura, el Tribunal podrá ordenar la continuación del periodo de observación, si considerara que la empresa dispone a estos efectos de una capacidad de financiación suficiente. No obstante, cuando el deudor ejerza una actividad agrícola, dicho plazo podrá modificarse en función del año agrícola en curso y de los usos y costumbres específicos de las producciones de dicha explotación.
El Tribunal se pronunciará tras estudiar el informe elaborado por el administrador o, cuando este último no hubiera sido nombrado, por el deudor.
II. - En cualquier momento del periodo de observación, el Tribunal podrá ordenar, bien a instancia del
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CÓDIGO DE COMERCIO administrador, del mandatario judicial, de un interventor, del Ministerio Fiscal, o bien de oficio, el cese parcial de la actividad, o dictar la liquidación judicial si se cumplieran las condiciones previstas en el artículo L.640-1.
El Tribunal resolverá tras haber oído o citado en debida forma al deudor, al administrador, al mandatario judicial, a los interventores y a los representantes del comité de empresa o, en su defecto, a los delegados del personal, y tras haber recabado el dictamen del Ministerio Fiscal.
Cuando el Tribunal dicte la liquidación, pondrá fin al período de observación y, sin perjuicio de lo dispuesto en el artículo L.641-10, a la misión del administrador.
Artículo L.631-16 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si durante este periodo de observación se considerara que el deudor dispone de las cantidades suficientes para resarcir a los acreedores y pagar los gastos y las deudas derivados del procedimiento, el Tribunal podrá poner fin al mismo.
Dicho Tribunal conocerá a instancia del deudor, con arreglo a las condiciones previstas en el punto II del artículo L.631-15.
Artículo L.631-17 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando por motivos económicos se produzcan despidos que presenten un carácter urgente, inevitable e indispensable durante el período de observación, el administrador tendrá la autorización del Juez Comisario para proceder a efectuarlos.
Antes de someter el asunto al Juez Comisario, el administrador consultará con el comité de empresa o, en su defecto, con los delegados del personal en las condiciones previstas en el artículo L.321-9 del Código de Trabajo e informará a la autoridad administrativa competente mencionada en el artículo L.321-8 del mismo Código.
En apoyo de su solicitud al Juez Comisario, adjuntará como anexo el dictamen obtenido y los comprobantes de sus gestiones para facilitar la indemnización y la recolocación de los empleados.
Artículo L.631-18 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Lo dispuesto en los capítulos III, IV y V del título II del presente libro será aplicable al procedimiento de saneamiento judicial.
II. - No obstante, el recurso previsto en el párrafo primero del artículo L.624-3 también podrá ser interpuesto por el administrador cuando este quede encargado de la administración de la empresa.
Para la aplicación del artículo L.625-1, el mandatario judicial citado ante el Conseil de Prud'hommes o, en su defecto, el demandante convocará ante este órgano jurisdiccional a las instituciones citadas en el artículo L.143-11-4 del Código de Trabajo.
Del mismo modo, para la aplicación del artículo L.625-3 del presente Código, las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo serán convocadas por el mandatario judicial o, en su defecto, por los empleados demandantes, en los diez días siguientes a la resolución de apertura del procedimiento de saneamiento judicial o de la resolución que convierta un procedimiento de salvaguarda en un procedimiento de saneamiento judiciaL. Se proseguirán las instancias en curso ante la jurisdicción laboral en la fecha de la resolución de apertura, en presencia del administrador, cuando este tuviera por misión asegurar la administración de la empresa, o bien cuando hubiera sido citado en debida forma.
Artículo L.631-19 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Lo dispuesto en el capítulo VI del título II será aplicable al plan de saneamiento judicial. II. - Cuando el plan previera despidos por motivos económicos, el Tribunal no podrá resolver hasta que haya sido
consultado el comité de empresa o, en su defecto, los delegados del personal, en las condiciones previstas en el artículo L.321-9 del Código de Trabajo y hasta que haya sido informada la autoridad administrativa competente mencionada en el artículo L.321-8 del mismo Código.
El plan precisará sobre todo los despidos que deban producirse en el plazo de un mes desde la resolución. En ese plazo, dichos despidos se producirán por simple notificación del administrador, sin perjuicio de los plazos previstos por la Ley para la comunicación previa y en los convenios o acuerdos laborales colectivos.
Artículo L.631-20 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Por excepción a lo dispuesto en el artículo L.626-11, los codeudores y las personas que hayan concedido una fianza o una garantía autónoma no podrán prevalerse de lo dispuesto en el plan.
Artículo L.631-21 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
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CÓDIGO DE COMERCIO Lo dispuesto en el capítulo VII del título II será aplicable al plan de saneamiento judicial. Durante el periodo de observación, el deudor que ejerza las prerrogativas atribuidas al administrador por el artículo
L.631-17 proseguirá la actividad y procederá a las notificaciones previstas en el párrafo segundo del punto II del artículo L.631-19.
El mandatario judicial ejercerá las funciones atribuidas al administrador por los párrafos segundo y tercero del artículo L.631-10.
Artículo L.631-22 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 92 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Tras examinar el informe del administrador, el Tribunal podrá ordenar la cesión total o parcial de la empresa siempre que el deudor se encontrara ante la imposibilidad de subsanar la situación. A excepción de lo dispuesto en el punto I del artículo L.642-2, lo dispuesto en la sección 1 del capítulo II del título IV será aplicable a dicha cesión. El mandatario judicial ejercerá las misiones atribuidas al liquidador.
El administrador se mantendrá en funciones para llevar a cabo todos los actos necesarios para realizar la cesión
TITULO IV DE LA LIQUIDACION JUDICIAL Artículos L640-1 a
L644-6
CAPITULO PRELIMINAR De la apertura y del desarrollo del procedimiento de liquidación judicia Artículos L640-1 a
L640-6
Artículo L.640-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 97 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se abrirá un procedimiento de liquidación judicial a todo deudor mencionado en el artículo L.640-2 en estado de insolvencia cuando el saneamiento de la empresa fuera manifiestamente imposible.
El procedimiento de liquidación judicial está destinado a poner fin a la actividad de la empresa o a ejecutar el patrimonio del deudor mediante una cesión global o por separado de sus derechos y de sus bienes.
Artículo L.640-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 97 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El procedimiento de liquidación judicial será aplicable a cualquier comerciante, a cualquier persona inscrita en el Registro Central de Artesanos, a cualquier agricultor, a cualquier persona física que ejerza una actividad profesional autónoma, incluyendo una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, así como a cualquier persona jurídica de derecho privado.
No podrá incoarse un nuevo procedimiento de liquidación judicial respecto de una persona que ya estuviera incursa en un procedimiento de este tipo en tanto el mismo no haya finalizado.
Artículo L.640-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 97 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El procedimiento de liquidación judicial se abrirá asimismo a las personas mencionadas en el párrafo primero del artículo L.640-2 tras el cese de su actividad profesional cuando la totalidad o parte de su pasivo se derivara de la misma.
En caso de fallecimiento de un comerciante, una persona inscrita en el Registro Central de Artesanos, un agricultor o cualquier otra persona física que ejerza una actividad profesional autónoma, incluyendo una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté protegido, que se hubiera encontrado en estado de insolvencia, el Tribunal conocerá en el plazo de un año a partir de la fecha del fallecimiento, bien a instancia de un acreedor, sea cual fuere la naturaleza de su crédito, bien a instancia del Ministerio FiscaL.El Tribunal podrá igualmente conocer de oficio en el mismo plazo y a instancia de cualquier heredero del deudor sin condición de plazo.
Artículo L.640-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 97 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El deudor deberá solicitar la apertura de este procedimiento como máximo en los cuarenta y cinco días siguientes a la declaración de insolvencia, si en el transcurso de dicho plazo no hubiera solicitado la apertura de un procedimiento de conciliación.
En caso de fracasar el procedimiento de conciliación, cuando el tribunal, en aplicación del párrafo segundo del artículo L.631-4, constatara que se cumplen las condiciones mencionadas en el artículo L.640-1, abrirá un procedimiento de liquidación judicial.
Artículo L.640-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 97 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
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CÓDIGO DE COMERCIO El Tribunal, de oficio o a instancia del Ministerio Fiscal, podrá pronunciarse sobre la apertura de un procedimiento
de liquidación judicial aún cuando no hubiera ningún procedimiento de conciliación en curso. Sin perjuicio de esto último, el procedimiento podrá asimismo ser incoado a solicitud de un acreedor, sea cual fuere
la naturaleza de su crédito. No obstante, cuando el deudor haya cesado su actividad profesional, esta solicitud deberá presentarse dentro del plazo de un año a contar desde:
1° La baja en el Registro de Comercio y de Sociedades Si se tratara de una persona jurídica, el plazo empezará a contar desde la baja consiguiente a la publicación del cierre de las operaciones de liquidación;
2° El cese de la actividad, si se tratara de una persona inscrita en el Registro Central de Artesanos, de un agricultor o de una persona física que ejerza una actividad profesional autónoma, incluyendo una profesión liberal, sujeta a un estatuto legal o reglamentario o cuyo título esté protegido;
3º Si se tratara de una persona jurídica no sujeta a inscripción, la publicación del cierre de la liquidación, Además, el procedimiento sólo podrá abrirse contra un deudor que ejerza una actividad agrícola no constituida en
forma de sociedad mercantil cuando, previamente al requerimiento de apertura del procedimiento por parte de un acreedor, se presentara ante el presidente del Tribunal de Grande Instance una solicitud de nombramiento de un conciliador en aplicación del artículo L.351-2 del Código Rural.
Artículo L.640-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 97 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El comité de empresa o, en su defecto, los delegados del personal podrán comunicar al presidente del Tribunal o al Ministerio Fiscal cualquier hecho que revele el estado de insolvencia del deudor.
CAPITULO I De la resolución de liquidación judicial Artículos L641-1 a
L641-15
Artículo L.641-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 98 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Los artículos L.621-4 a L.621-2 se aplicarán al procedimiento de liquidación judicial. II. - En la resolución de apertura de la liquidación judicial, el Tribunal designará al Juez Comisario y, en calidad de
liquidador, a un mandatario judicial inscrito en el registro o a una persona escogida en base a los criterios establecidos en el párrafo primero del punto II del artículo L.812-2. El Tribunal, bien a propuesta del Juez Comisario o a instancia del Ministerio Fiscal, o bien de oficio, podrá proceder a la sustitución del liquidador o nombrarle como adjuntos, para que le asistan, uno o varios liquidadores. El deudor o un acreedor podrán solicitar al Juez Comisario que someta todo ello al Tribunal.
Cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título estuviera protegido, el colegio profesional o la autoridad competente de la que eventualmente dependa, podrá recurrir al Ministerio Fiscal para los fines mencionados en el párrafo primero.
Se nombrará a un representante de los trabajadores en las condiciones previstas en el segundo párrafo del artículo L.621-4. El mismo será sustituido con arreglo a las condiciones previstas en el párrafo quinto del artículo L.621-7 y ejercerá la misión prevista en el artículo L.625-2.
Los interventores serán designados y ejercerán sus atribuciones en las mismas condiciones que las previstas en el título II.
III. - Cuando se dicte la liquidación judicial durante el periodo de observación de un procedimiento de salvaguarda o de saneamiento judicial, el Tribunal nombrará al mandatario judicial en calidad de liquidador. No obstante, mediante resolución motivada y a petición del administrador, de un acreedor, del deudor o del Ministerio Fiscal, el Tribunal podrá nombrar como liquidador a otra persona en las condiciones previstas en el artículo L.812-2.
El Tribunal podrá proceder a la sustitución del liquidador o nombrarle como adjuntos, para que le asistan, uno o varios liquidadores con arreglo a las normas previstas en el punto II del presente artículo.
Cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título estuviera protegido, el colegio profesional o la autoridad competente de la que eventualmente dependa, podrá recurrir al Ministerio Fiscal para los fines mencionados en los párrafos primero y segundo del presente punto III.
IV. - La fecha de declaración de insolvencia será fijada en las condiciones previstas en el artículo L.631-8.
Artículo L.641-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 99 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Dentro del mes siguiente a su nombramiento, el liquidador elaborará un informe sobre la situación del deudor, salvo que el Tribunal dictara la liquidación judicial durante el periodo de observación. Será de aplicación lo dispuesto en el párrafo segundo del artículo L.621-9.
Será de aplicación el procedimiento de liquidación judicial simplificada prevista en el capítulo IV del presente título cuando el activo del deudor no incluyera bienes inmobiliarios y cuando el número de sus empleados en los seis meses anteriores a la apertura del procedimiento y su cifra de negocios antes de impuestos fueran inferiores a los umbrales fijados por decreto adoptado en Conseil d'Etat.
Artículo L.641-3
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CÓDIGO DE COMERCIO (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 100 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La resolución que abra la liquidación judicial tendrá los mismos efectos que los previstos en caso de salvaguarda por los párrafos primero y cuarto del artículo L.622-7 y por los artículos L.622-21, L.622-22 L.622-28 y L.622-30.
Los acreedores declararán sus créditos al liquidador conforme a las modalidades previstas en los artículos L.622-24 a L.622-27 y L.622-31 a L.622-33.
Artículo L.641-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 101 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El liquidador procederá a las operaciones de liquidación al mismo tiempo que comprobará los créditos. Podrá iniciar o proseguir las actuaciones que sean competencia del mandatario judicial.
No se procederá a la comprobación de los créditos no privilegiados, si el producto de la realización del activo fuera íntegramente absorbido por las costas judiciales y los créditos privilegiados, a menos que, tratándose de una persona jurídica, se debiera cargar a cuenta de los dirigentes sociales de hecho o de derecho la totalidad o parte del pasivo de conformidad con lo dispuesto en los artículos L.51-2 y L.652-1.
El liquidador ejercerá las misiones atribuidas al administrador y al mandatario judicial por los artículos L.622-6, L.622-20, L.622-22, L.622-23, L.624-17, L.625-3, L.625-4 y L.625-8.
Al objeto de realizar el inventario previsto en el artículo L.622-6, el Tribunal nombrará a un perito tasador judicial, a un agente judicial, a un notario o a un corredor de mercancías jurado.
Estas personas realizarán una tasación de los activos del deudor. Los despidos a los que proceda el liquidador en aplicación de la resolución que dicte la liquidación estarán sujetos
a las disposiciones de los artículos L.321-8 y 321-9 del Código de Trabajo.
Artículo L.641-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 102 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando se dicte la liquidación judicial durante el periodo de observación de un procedimiento de salvaguarda o de saneamiento judicial, el liquidador procederá a las operaciones de liquidación al mismo tiempo que finalizará, si procede, la comprobación de los créditos y determinará el orden de prelación de los acreedores. Continuará las acciones entabladas antes de la resolución de liquidación por el administrador o por el mandatario judicial, y podrá entablar las acciones que sean de la competencia del mandatario judicial.
Artículo L.641-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No podrá ser nombrado liquidador ningún pariente del empresario o de los dirigentes si se trata de una persona jurídica, ni consanguíneo ni por afinidad, hasta el cuarto grado inclusive.
Artículo L.641-7 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 103 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El liquidador informará al Juez Comisario, al deudor y al Ministerio Fiscal del desarrollo de las operaciones como mínimo cada tres meses.
Artículo L.641-8 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Toda cantidad que perciba el liquidador en el ejercicio de sus funciones será inmediatamente ingresada en una cuenta de depósito de la Caja de Depósitos y Consignaciones. En caso de retraso, el liquidador deberá pagar un interés por las cantidades que no haya ingresado, aplicando una tasa igual al interés legal incrementado en cinco puntos.
Artículo L.641-9 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 104 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - La resolución que abra o dicte la liquidación judicial conllevará de pleno derecho para el deudor, a partir de su fecha, la privación de la administración y de la disposición de sus bienes incluso de aquellos que hubiera adquirido en cualquier concepto, hasta que el procedimiento de liquidación judicial no haya finalizado. El liquidador ejercerá los derechos y las acciones correspondientes al patrimonio del deudor mientras dure la liquidación judicial.
Sin embargo, el deudor podrá constituirse en parte civil con el fin de determinar la culpabilidad del autor de un crimen o de un delito del que hubiera sido víctima.
El deudor ejercerá los actos de disposición y administración de sus bienes así como los derechos y acciones que no estén incluidos en la misión del administrador cuando este haya sido nombrado.
II. - Cuando el deudor sea una persona jurídica, los dirigentes sociales que estén en funciones en el momento de dictarse la resolución de apertura de procedimiento de liquidación judicial conservarán sus cargos, salvo disposición de los estatutos o decisión de la junta general en contrario. En caso de necesidad y a petición de cualquier persona interesada, del liquidador o del Ministerio Fiscal, se podrá nombrar en su lugar a un mandatario por auto del presidente
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CÓDIGO DE COMERCIO del Tribunal.
Se considerará en dicho caso que el domicilio social de la empresa será el domicilio de su representante legal o el del mandatario designado.
III. - Cuando el deudor sea una persona física, no podrá ejercer durante la liquidación judicial ninguna de las actividades mencionadas en el párrafo primero del artículo L.640-2.
Artículo L.641-10 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 105 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si existiera la posibilidad de una cesión total o parcial de la empresa, o si el interés público o el de los acreedores lo exigiese, el Tribunal podrá autorizar el mantenimiento de la actividad por un periodo máximo fijado por decreto adoptado en Conseil d'Etat. Dicho periodo podrá ser prolongado a instancia del Ministerio Fiscal por un período fijado por la misma vía. Cuando se trate de una explotación agrícola, el Tribunal determinará este plazo en función del año agrícola en curso y de los usos y costumbres específicos de las producciones afectadas. Lo dispuesto en el artículo L.641-13 será de aplicación a los créditos contraídos durante dicho periodo.
El liquidador administrará la empresa. Tendrá la facultad de exigir la ejecución de los contratos en curso y ejercerá las prerrogativas atribuidas al administrador judicial por el artículo L.622-13.
Podrá proceder a los despidos, con arreglo a las condiciones previstas en el artículo L.631-17. Si procediera, preparará un plan de cesión, celebrará los actos necesarios para su realización y recibirá y
distribuirá el precio de la misma. No obstante, cuando el número de empleados o la cifra de negocios fuera superior a los umbrales fijados por
decreto adoptado en Conseil d'Etat, o cuando resultara necesario, el Tribunal nombrará a un administrador judicial para administrar la empresa. En tal caso, por excepción a lo dispuesto en los dos párrafos anteriores, el administrador estará sujeto a los dispuesto en el artículo L.622-13. Preparará el plan de cesión, celebrará los actos necesarios para su realización y, en las condiciones previstas en el artículo L.631-17, podrá proceder a los despidos.
Cuando el administrador no dispusiese de las cantidades necesarias para la continuidad de la actividad, podrá hacer que estas le sean entregadas por el liquidador previa autorización del Juez Comisario.
El liquidador o el administrador, cuando este haya sido nombrado, ejercerá las funciones atribuidas, según el caso, al administrador o al mandatario judicial por los artículos L.622-4 y L.624-6.
Artículo L.641-11 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 106 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario ejercerá las competencias que le son atribuidas por los artículos L.621-9, L.623-2, L.631-11, por el párrafo primero del artículo L.621-13 y el párrafo cuarto del artículo L.621-16.
El Ministerio Fiscal le comunicará las informaciones que obren en su poder con arreglo a las normas previstas por el párrafo segundo del artículo L.621-8.
El liquidador y el administrador, cuando este haya sido nombrado, recibirán del Juez Comisario todas las informaciones y documentos útiles para el cumplimiento de su misión.
Artículo L.641-12 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 107 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La liquidación judicial no conllevará de pleno derecho la rescisión del contrato de arrendamiento de los inmuebles destinados a la actividad de la empresa.
El liquidador o el administrador podrán dar continuidad al contrato de arrendamiento o cederlo en las condiciones previstas en el contrato concluido con el arrendador con todos los derechos y obligaciones vinculados a éL.En caso de cesión, será de aplicación lo dispuesto en el párrafo segundo del artículo L.221-15.
Si el liquidador o el administrador decidiera no continuar dicho contrato de arrendamiento, el mismo será rescindido previa solicitud. La rescisión será efectiva el día de la solicitud.
El arrendador podrá solicitar la rescisión judicial o hacer constatar la rescisión de pleno derecho del contrato de arrendamiento por causas anteriores a la resolución de liquidación judicial o, cuando esta haya sido dictada tras un procedimiento de salvaguarda o de saneamiento judicial, a la resolución de apertura del procedimiento que lo hubiera precedido. Deberá, si no lo hubiese hecho, presentar su solicitud en los tres meses siguientes a la publicación de la resolución de liquidación judicial.
El arrendador podrá solicitar igualmente la rescisión judicial o hacer constatar la rescisión de pleno derecho del contrato de arrendamiento por falta de pago de los alquileres y de las cargas derivadas de una ocupación posterior a la resolución de apertura, en las condiciones previstas en los párrafos tercero a quinto del artículo L.622-14.
El privilegio del arrendador será determinado con arreglo a los dispuesto en los tres primeros párrafos del artículo L.621-31.
Artículo L.641-13 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 108 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Los créditos contraídos válidamente con posterioridad a la resolución que abra o dicte la liquidación judicial o, en este último caso, tras la resolución de apertura del procedimiento de salvaguarda o de saneamiento judicial, para satisfacer las necesidades del desarrollo del procedimiento o, en su caso, las necesidades del periodo de observación,
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CÓDIGO DE COMERCIO o como contrapartida de una prestación al deudor, por su actividad profesional posterior a una de estas resoluciones, se pagarán en su fecha de vencimiento.
II. - Cuando no se paguen en su fecha de vencimiento, estos créditos serán pagados prioritariamente sobre los demás créditos contraídos, a excepción de los créditos garantizados por el privilegio establecido en los artículos L.143-10, L.143-11, L.742-6 y L.751-15 del Código de Trabajo, de los garantizados por el privilegio de las costas judiciales, de los garantizados por el privilegio establecido por el artículo L.611-11 del presente Código y de los que están asegurados por garantías inmobiliarias o mobiliarias especiales provistas de un derecho de retención o constituidas en aplicación del capítulo V del título II del libro V.
III. - Su pago se hará según el siguiente orden: 1º Los créditos sobre los salarios cuyo importe no hubiera sido adelantado en aplicación de los artículos L.143-11-1
a L.143-11-3 del Código de Trabajo; 2º Las costas judiciales; 3º Los préstamos concedidos así como las créditos resultantes de la continuación de la ejecución de contratos en
curso de conformidad con lo dispuesto en el artículo L.621-13 del presente Código y cuyo cocontratante aceptara recibir un pago aplazado. El Juez Comisario autorizará estos préstamos y plazos de pago hasta el límite necesario para la continuidad de la actividad, siendo los mismos objeto de publicidad. En caso de rescisión de un contrato válidamente concluido, las indemnizaciones y penalizaciones estarán excluidas del beneficio del presente artículo;
4º Las cantidades cuyo importe hubiera sido adelantado en aplicación del apartado 3º del artículo L.143-11-1 del Código de Trabajo;
5º Los otros créditos, según su orden de prelación. IV. - Los créditos impagados perderán el privilegio que les confiere el presente artículo si no hubieran sido puestos
en conocimiento del mandatario judicial, del administrador cuando este hubiera sido nombrado o del liquidador, del plazo de seis meses a contar desde la publicación de la resolución que abra o dicte la liquidación o, en su defecto, dentro del plazo de un año a contar desde la publicación de la resolución que apruebe el plan de cesión.
Artículo L.641-14 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 109 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las disposiciones de los capítulos IV y V del título II del presente libro relativas a la determinación del patrimonio del deudor y al pago de los créditos derivados de un contrato laboral, así como las disposiciones del capítulo II del título III del presente libro relativas la nulidad de determinados actos, se aplicarán al procedimiento de liquidación judiciaL.
No obstante, para la aplicación del artículo L.625-1, el liquidador citado ante el Conseil de Prud'hommes o, en su defecto, el demandante convocará ante la jurisdicción laboral a las instituciones citadas en el artículo L.143-11-4 del Código de Trabajo.
Para la aplicación del artículo L.625-3 del presente Código, las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo serán convocadas por el liquidador o, en su defecto, por los empleados demandantes, en los diez días siguientes a la resolución de apertura del procedimiento de liquidación judicial o de la resolución que la dicte. Del mismo modo, se proseguirán las instancias en curso ante la jurisdicción laboral en la fecha de la resolución de apertura, en presencia del administrador, cuando este haya sido nombrado o citado en debida forma.
Artículo L.641-15 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 110 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Durante el procedimiento de liquidación judicial, el Juez Comisario podrá ordenar que el liquidador o el administrador, cuando este haya sido nombrado, sea el destinatario del correo dirigido al deudor.
El deudor, previamente informado de ello, podrá asistir a la apertura de dicho correo. No obstante, cualquier convocatoria ante un órgano jurisdiccional, cualquier notificación de decisiones o cualquier correo de carácter personal deberán ser restituidos inmediatamente al deudor.
El Juez Comisario podrá autorizarle al liquidador el acceso al correo electrónico recibido por el deudor con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat.
No será de aplicación lo dispuesto en el presente artículo en el caso en que el deudor ejerciera una actividad para la cual estuviera obligado a guardar secreto profesional.
CAPITULO II De la realización del activo Artículos L642-1 a
L642-25
Sección I De la cesión de la empresa Artículos L642-1 a
L642-17
Artículo L.642-1 (Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2006-11 de 1 de enero de 2006 art. 14 V Diario Oficial de 6 de enero de 2006)
La cesión de la empresa tendrá por finalidad el mantenimiento de actividades susceptibles de explotación
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CÓDIGO DE COMERCIO autónoma, el mantenimiento de la totalidad o parte de los empleos vinculados a ella y el pago del pasivo.
La cesión podrá ser total o parciaL.En este último caso, se referirá a un conjunto de elementos de explotación que formen uno o varios sectores completos y autónomos de actividades.
Cuando un conjunto esté esencialmente constituido por el derecho a un arrendamiento rústico, el Tribunal podrá autorizar al arrendador, a su cónyuge o a uno de sus descendientes, a que vuelvan a hacerse cargo del negocio para explotarlo, respetando los derechos de indemnización del arrendatario saliente y las demás disposiciones del estatuto de arrendamiento rústico, o atribuir el contrato de arrendamiento rústico a otro arrendatario propuesto por el arrendador o, en su defecto a cualquier arrendatario cuya oferta hubiera sido admitida en las condiciones fijadas en los artículos L.621-2, L.621-4 y L.621-5. No serán de aplicación las disposiciones relativas al control de las estructuras de las explotaciones agrícolas. No obstante, cuando se hubieran recibido varias ofertas, el Tribunal tendrá en cuenta lo dispuesto en los apartados 1° a 4° y 6° a 9° del artículo L.331-3 del Código RuraL.
Cuando el deudor fuera una persona física que ejerciera una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título estuviera protegido, la cesión deberá limitarse a los activos materiales. No obstante, cuando se tratara de un oficial o fedatario público, el liquidador podrá ejercer el derecho del deudor a presentar su sucesor al Ministro de Justicia.
Artículo L.642-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Cuando el Tribunal considere posible prever la cesión total o parcial de la empresa, autorizará la continuidad de la actividad y fijará el plazo dentro del cual deberán remitirse las ofertas de compra al liquidador y al administrador, cuando este haya sido nombrado.
No obstante, si las ofertas recibidas en aplicación del artículo L.631-13 cumplieran las condiciones previstas en el punto II del presente artículo y fueran satisfactorias, el Tribunal podrá decidir no aplicar lo dispuesto en el párrafo anterior.
II. - Toda oferta deberá hacerse por escrito y deberá incluir la siguiente información: 1° La designación precisa de los bienes, derechos y contratos incluidos en la oferta; 2º Las previsiones de actividad y de financiación; 3° El precio ofertado, las modalidades de pago, la calidad de los aportantes de capitales y, eventualmente, de sus
garantes. Si la oferta propusiera recurrir al préstamo, deberá revisar las condiciones del mismo y en especial su duración;
4º La fecha de la realización de la cesión; 5º El nivel y las perspectivas de empleo justificadas por la actividad considerada; 6º Las garantías suscritas para asegurar la ejecución de la oferta; 7º Las previsiones de cesión de activos durante los dos años posteriores a la cesión; 8° La duración de cada uno de los compromisos suscritos por el autor de la oferta. III. - Cuando el deudor ejerza una profesión liberal sujeta a un estatuto legal o reglamentario o cuyo título esté
protegido, la oferta deberá asimismo mencionar la calificación profesional del cesionario. IV. - El liquidador o el administrador, cuando este haya sido nombrado, informará al deudor, al representante de los
trabajadores y a los interventores acerca del contenido de las ofertas recibidas. Depositará dichas ofertas en la secretaría del Tribunal donde cualquier persona interesada podrá tener acceso a ellas.
Las ofertas serán notificadas al colegio profesional o a la autoridad competente de la que dependiera el deudor. V. - La oferta no podrá ser modificada, a no ser que lo sea en un sentido más favorable a los objetivos
mencionados en el párrafo primero del artículo L.642-1, ni retirada. Su autor quedará vinculado por ella hasta la resolución de aprobación del plan.
En caso recurrirse la resolución de aprobación del plan, sólo el cesionario quedará vinculado por la oferta.
Artículo L.642-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No serán admitidos a presentar una oferta, ni directamente ni por persona interpuesta, ningún deudor, ni ningún dirigente de hecho o de derecho de la persona jurídica en liquidación judicial, ni ningún pariente por consanguinidad o por afinidad hasta el segundo grado inclusive de los dirigentes o del deudor, ni ninguna persona que ejerza o haya ejercido las funciones de interventor durante el procedimiento. Del mismo modo, en el plazo de cinco años a contar desde la fecha de la cesión, dichas personas tendrán prohibida la compra, directa o indirecta, de la totalidad o parte de los bienes resultantes de la liquidación, así como la compra de participaciones o títulos de capital de cualquier sociedad que tenga en su patrimonio, directa o indirectamente, la totalidad o parte de dichos bienes, y de valores mobiliarios que den acceso, dentro del mismo plazo, al capital de esta sociedad.
No obstante, cuando se trate de una explotación agrícola, el Tribunal podrá establecer una excepción a estas prohibiciones y autorizar la cesión de la misma a una de las personas citadas en el párrafo primero, a excepción de los interventores. En los demás casos y a instancia del Ministerio Fiscal, el Tribunal podrá autorizar mediante resolución motivada la cesión a una de las personas citadas en el párrafo primero, a excepción de los interventores.
Cualquier acto realizado infringiendo lo dispuesto en el presente artículo será anulado a petición de cualquier interesado o del Ministerio Fiscal, debiéndose presentar el recurso de anulación dentro del plazo de tres años contados a partir la conclusión del acto. Cuando el acto haya sido objeto de publicidad, el plazo empezará a contar a partir de la misma.
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CÓDIGO DE COMERCIO Artículo L.642-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El liquidador o el administrador, cuando este haya sido nombrado entregará al Tribunal cualquier elemento que permita verificar el carácter serio de la oferta así como la condición de tercero de su autor en el sentido de lo dispuesto en el artículo L.642-3.
Remitirá asimismo al Tribunal toda la información que permita valorar las condiciones de liquidación del pasivo, teniendo especialmente en cuenta el precio ofertado, los activos residuales a cobrar o realizar, las deudas del periodo de continuidad de la actividad y, en su caso, las otras deudas que siguiera teniendo el deudor.
Artículo L.642-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Tras recabar el dictamen del Ministerio Fiscal y oír o citar en debida forma al deudor, al liquidador, al administrador cuando haya sido nombrado, a los representantes del comité de empresa o, en su defecto, a los delegados del personal y a los interventores, el Tribunal seleccionará la oferta que garantice las mejores condiciones para el mantenimiento del empleo vinculado a la actividad cedida y para el pago de los acreedores, y que presente las mejores garantías de ejecución. El Tribunal aprobará uno o varios planes de cesión.
Los debates deberán celebrarse en presencia del Ministerio Fiscal cuando el procedimiento se haya abierto en beneficio de personas físicas o jurídicas cuyo número de empleados o cifra de negocios fuera superior a los umbrales fijados por decreto adoptado en Conseil d'Etat.
Lo dispuesto en la resolución de aprobación será de obligado cumplimiento. Cuando el plan previera despidos por motivos económicos, el Tribunal no podrá resolver hasta que haya sido
consultado el comité de empresa o, en su defecto, los delegados del personal, en las condiciones previstas en el artículo L.321-9 del Código de Trabajo y hasta que haya sido informada la autoridad administrativa competente en las condiciones previstas en el artículo L.321-8 del mismo Código. El plan precisará sobre todo los despidos que deban producirse en el plazo de un mes desde la resolución. En ese plazo, dichos despidos se producirán por simple notificación del liquidador o del administrador, cuando este haya sido nombrado, sin perjuicio de los derechos de preaviso previstos por la Ley, los convenios o los acuerdos laborales colectivos.
Artículo L.642-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Sólo el Tribunal podrá decidir una modificación sustancial de los objetivos y los medios del plan, a petición del cesionario.
El Tribunal resolverá tras recabar el dictamen del Ministerio Fiscal, y tras oír o citar en debida forma al liquidador, al administrador judicial cuando este haya sido nombrado, a los interventores, a los representantes del comité de empresa o, en su defecto, a los delegados del personal, así como a cualquier persona interesada.
Sin embargo, no se podrá modificar el importe del precio de cesión fijado en la resolución de aprobación del plan.
Artículo L.642-7 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190, modificado por el Diario Oficial de la República Francesa de 22 de octubre de 2005)
El Tribunal establecerá los contratos de leasing, arrendamiento o suministro de bienes o servicios necesarios para el mantenimiento de la actividad tras considerar las observaciones de los cocontratantes del deudor transmitidas al liquidador o al administrador, cuando este haya sido nombrado.
La resolución de aprobación del plan llevará aparejada la cesión de estos contratos, incluso cuando esta estuviera precedida del arrendamiento de negocio previsto en el artículo L.642-13.
Dichos contratos deberán ser ejecutados en las condiciones vigentes el día de apertura del procedimiento, no obstante cualquier cláusula en contrario.
En caso de cesión de un contrato de leasing, el beneficiario sólo podrá ejercer su opción de compra en caso de abono de las cantidades que aún se adeudaran hasta el límite del valor del bien fijado de común acuerdo entre las partes o, si no se llegara a dicho acuerdo, por el Tribunal en la fecha de la cesión.
Artículo L.642-8 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En ejecución del plan determinado por el Tribunal, el liquidador, o el administrador cuando este haya sido nombrado, llevará a cabo todos los actos necesarios para la realización de la cesión. En espera de la realización de estos actos, y previa justificación de la consignación del importe del precio de cesión o de una garantía equivalente, el Tribunal podrá confiar al cesionario, a su solicitud y bajo su responsabilidad, la gestión de la empresa cedida.
Cuando la cesión incluya un fondo de comercio, no se admitirá ninguna sobrepuja.
Artículo L.642-9 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
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CÓDIGO DE COMERCIO En tanto el precio de la cesión no haya sido íntegramente pagado, el cesionario no podrá ceder o arrendar bajo la
forma de un arrendamiento de negocio los bienes materiales o inmateriales que haya adquirido, con excepción de las existencias.
No obstante, el Tribunal podrá autorizar su cesión total o parcial, su asignación en concepto de garantía, su alquiler o su arrendamiento bajo la forma de un arrendamiento de negocio, tras el examen del informe del liquidador, quien deberá consultar previamente con el comité de empresa o, en su defecto, con los delegados del personaL.El Tribunal deberá tener en cuenta las garantías ofrecidas por el cesionario.
Toda sustitución de cesionario deberá ser autorizada por el Tribunal en la resolución de aprobación del plan de cesión, sin perjuicio de la aplicación de las disposiciones del artículo L.642-6. El autor de la oferta seleccionada por el Tribunal será el garante solidario de la ejecución de los compromisos suscritos.
Cualquier acto realizado infringiendo las disposiciones párrafos anteriores será anulado a petición de cualquier persona interesada o del Ministerio Fiscal, debiéndose presentar el recurso de anulación dentro del plazo de tres años contados a partir de la conclusión del acto. Cuando el acto haya sido objeto de publicidad, el plazo empezará a contar a partir de la misma.
Artículo L.642-10 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal podrá incluir en el plan de cesión de una cláusula que haga intransferibles todo o parte de los bienes cedidos por el periodo que él determine.
Se asegurará la publicidad de esta cláusula en las condiciones fijadas por decreto adoptado en Conseil d'Etat. Cualquier acto realizado infringiendo las disposiciones del primer párrafo será anulado a petición de cualquier
persona interesada o del Ministerio Fiscal, debiéndose presentar el recurso de anulación dentro del plazo de tres años contados a partir de la conclusión del acto. Cuando el acto haya sido objeto de publicidad, el plazo empezará a contar a partir de la misma.
Artículo L.642-11 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El cesionario responderá ante el liquidador de la aplicación de las disposiciones previstas en el plan de cesión. Si el cesionario no cumpliera sus compromisos, el Tribunal, a instancia del Ministerio Fiscal de una parte, del
liquidador, de un acreedor, de cualquier persona interesada, o de oficio, de la otra, podrá poner fin al plan, sin perjuicio de la indemnización por daños y perjuicios a la que hubiere lugar.
El tribunal podrá acordar la resolución o rescisión de los actos realizados en ejecución del plan al que se haya puesto fin. El cesionario no podrá recuperar el importe pagado.
Artículo L.642-12 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando la cesión se realice sobre bienes sujetos a privilegio especial, a una pignoración o a una hipoteca, el Tribunal asignará una parte proporcional del precio a cada uno de estos bienes para la distribución del precio y el ejercicio del derecho de preferencia.
El pago del precio de cesión obstaculizará el ejercicio de los derechos de los acreedores inscritos sobre estos bienes en contra del cesionario.
Hasta que no se efectúe el pago completo de la cantidad que comporte el levantamiento de las inscripciones que gravan los bienes incluidos en la cesión, los acreedores que se beneficien de un derecho de reclamación sobre los bienes sólo podrán ejercerlo en caso de transferencia del bien cedido por el cesionario.
Sin embargo, se transmitirá al cesionario la carga de las garantías inmobiliarias y mobiliarias especiales que garanticen el reembolso de un crédito concedido a la empresa para permitirle la financiación de un bien sobre el que recaigan estas garantías. Este estará entonces obligado a pagar al acreedor los plazos concertados con él y pendientes de pago a partir de la transferencia de la propiedad o, en caso de arrendamiento de negocio, del goce del bien sobre el que recaiga la garantía. Excepcionalmente podrán no ser aplicadas las disposiciones del presente párrafo por acuerdo entre el cesionario y los acreedores titulares de las garantías.
Artículo L.642-13 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En la resolución de aprobación del plan de cesión, el Tribunal podrá autorizar la conclusión de un contrato de arrendamiento de negocio, aún cuando exista cualquier cláusula en contrario, especialmente en el contrato de arrendamiento del inmueble, en beneficio de la persona que hubiera presentado la oferta de adquisición que garantizara las mejores condiciones para mantener el empleo por más tiempo y para el pago de los acreedores.
El Tribunal resolverá tras recabar el dictamen del Ministerio Fiscal, y tras oír o citar en debida forma al liquidador, al administrador judicial cuando este haya sido nombrado, a los interventores, a los representantes del comité de empresa o, en su defecto, a los delegados del personal, así como a cualquier persona interesada.
Artículo L.642-14 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con
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CÓDIGO DE COMERCIO entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No serán de aplicación las disposiciones de los artículos L.144-3, L.144-4 y L.144-7 relativas al arrendamiento de negocio.
Artículo L.642-15 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de arrendamiento de negocio, la empresa deberá ser cedida de modo efectivo en los dos años siguientes a la resolución de aprobación del plan.
Artículo L.642-16 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El liquidador podrá hacerse remitir por el arrendatario gerente todos los documentos e informaciones útiles para el cumplimiento de su misión. Dará cuenta al Tribunal de cualquier perjuicio que afecte a los elementos arrendados así como del incumplimiento de las obligaciones por parte del arrendatario gerente.
El Tribunal podrá ordenar la rescisión del contrato de arrendamiento de negocio y la cancelación del plan, de oficio o a instancia del liquidador o del Ministerio Fiscal.
Artículo L.642-17 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 111 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si el arrendatario gerente no cumpliera con su obligación de adquisición en las condiciones y plazos fijados por el plan, el Tribunal, de oficio o a instancia del liquidador o del Ministerio Fiscal, ordenará que se rescinda el contrato de arrendamiento de negocio y se ponga fin al plan, sin perjuicio de la indemnización por daños y perjuicios a la que hubiere lugar.
No obstante, cuando el arrendatario gerente justifique que no puede proceder a la adquisición en las condiciones inicialmente previstas por una causa que no pudiera imputársele, podrá solicitar al Tribunal que modifique dichas condiciones, salvo en lo relativo al importe del precio y al plazo previsto en el artículo L.642-15. El Tribunal resolverá antes de la expiración del contrato de arrendamiento y tras recabar el dictamen del Ministerio Fiscal y oír o citar en debida forma al liquidador, al administrador cuando este haya sido nombrado, a los interventores, a los representantes del comité de empresa o, en su defecto, a los delegados del personal, así como a cualquier persona interesada.
Sección II De la cesión de los activos del deudor Artículos L642-18 a
L642-21
Artículo L.642-18 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 112 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las ventas de inmuebles tendrán lugar siguiendo las formas prescritas en materia de embargo de inmuebles. Sin embargo, el Juez Comisario fijará la valoración, las condiciones esenciales de la venta y las condiciones previstas de publicidad, tras considerar las observaciones de los interventores, las declaraciones del deudor y del liquidador o tras citarlos en debida forma.
Cuando un procedimiento de embargo inmobiliario iniciado antes de la apertura del procedimiento de salvaguarda, de saneamiento judicial o de la liquidación judicial, hubiera sido suspendido por efecto de este último, el liquidador podrá subrogarse en los derechos del acreedor embargante para los actos que este hubiera efectuado, los cuales podrán considerarse efectuados por cuenta del liquidador, quien procederá a la venta de los inmuebles. El embargo inmobiliario podrá entonces retomar su curso en el trámite en que la resolución de apertura lo hubiera suspendido.
En las mismas condiciones, si la consistencia de los bienes, su emplazamiento o las ofertas recibidas fueran adecuadas para permitir una cesión amistosa en las mejores condiciones, el Juez Comisario podrá autorizar la venta por adjudicación voluntaria a partir de un precio fijado por él, o autorizar la venta de común acuerdo, con arreglo a los precios y condiciones que él determine. En caso de subasta voluntaria, siempre podrá realizarse una sobrepuja.
Las adjudicaciones realizadas en aplicación de los párrafos anteriores conllevarán el saneamiento de las hipotecas. El liquidador distribuirá el producto de las ventas y pagará a los acreedores según el orden de prelación, sin
perjuicio de las impugnaciones que hubieran sido presentadas ante el Tribunal de Grande Instance. En caso de liquidación judicial de un agricultor, el Tribunal, en consideración a la situación personal y familiar del
deudor, podrá fijar plazos de gracia para que este deje su vivienda principal. Las condiciones de aplicación del presente artículo serán establecidas por decreto adoptado en Conseil d'Etat.
Artículo L.642-19 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 113 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Tras considerar las observaciones de los interventores, el Juez Comisario ordenará la venta en subasta pública o autorizará la venta de común acuerdo de los demás bienes del deudor, al que oirá o citará en debida forma. Cuando la venta se realice en subasta pública, esta se celebrará con arreglo a las condiciones previstas en el párrafo segundo del artículo L.322-2 o en los artículos L.3224 o L.322-7, según el caso.
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CÓDIGO DE COMERCIO El Juez Comisario podrá solicitar que se le presente el proyecto de venta amistosa para comprobar si se cumplen
las condiciones que él hubiera establecido.
Artículo L.642-20 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 114 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Lo dispuesto en el artículo L.642-3 será de aplicación a las cesiones de activos realizadas en aplicación de los artículos L.642-18 y L.642-19. En este caso, el Juez Comisario ejercerá las facultades atribuidas al Tribunal.
Artículo L.642-21 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 114 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando se hubiera aplicado lo dispuesto en el artículo L.631-22 y el deudor no pudiera obtener del Tribunal la aprobación de un plan de saneamiento judicial, será de aplicación lo dispuesto en el presente título. Los bienes que no estuvieran incluidos en el plan de cesión será cedidos con arreglo a las condiciones establecidas en la presente sección.
Sección III Disposiciones comunes Artículos L642-22 a
L642-25
Artículo L.642-22 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 115 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cualquier cesión de empresa y cualquier realización de activos deberá ser precedida de una publicidad cuyas modalidades serán establecidas por decreto adoptado en Conseil d'Etat en función de la dimensión de la empresa y de la naturaleza de los activos a vender.
Artículo L.642-23 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 116 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Antes de cualquier venta o de cualquier destrucción de archivos del deudor, el liquidador informará de ello a la autoridad administrativa competente en materia de conservación de archivos. Esta autoridad dispondrá de un derecho de tanteo.
El destino de los archivos del deudor que estuviera obligado a guardar el secreto profesional será determinado por el liquidador de común acuerdo con el colegio profesional o la autoridad competente de la que dependa.
Artículo L.642-24 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El liquidador podrá obligar y transigir en todas las impugnaciones que interesen colectivamente a los acreedores, incluso aquellas que sean relativas a derechos y acciones inmobiliarias, previa autorización del Juez Comisario y tras oír las declaraciones del deudor o citarlo en debida forma.
Si el objeto del compromiso o de la transacción fuera de un valor indeterminado o superase la competencia en última instancia del Tribunal, dicho compromiso o dicha transacción quedará condicionada a la homologación del Tribunal.
Artículo L.642-25 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 117 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El liquidador autorizado por el Juez Comisario podrá retirar los bienes constituidos en prenda por el deudor o la cosa retenida, pagando la deuda.
Si no hubiera dicha retirada, el liquidador, dentro de los seis meses siguientes a la resolución de liquidación judicial, deberá solicitar al Juez Comisario la autorización para proceder a su venta. El liquidador notificará la autorización al acreedor quince días antes de la realización.
El acreedor pignoraticio, aunque no hubiera sido aún admitido, podrá solicitar al Juez Comisario la adjudicación judicial antes de la realización. Si el crédito fuera rechazado en su totalidad o en parte, devolverá al liquidador el bien o su valor, ateniéndose al importe admitido de su crédito.
En caso de venta por parte del liquidador, el derecho de retención se trasladará al precio. La inscripción eventualmente formalizada para la conservación de la prenda será cancelada a instancia del liquidador.
CAPITULO III De la liquidación del pasivo Artículos L643-1 a
L643-13
Sección I Del pago a los acreedores Artículos L643-1 a
L643-8
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CÓDIGO DE COMERCIO Artículo L.643-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 118 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La resolución que abra o dicte la liquidación judicial hará exigibles los créditos no devengados. No obstante, cuando el Tribunal autorice la continuidad de la actividad debido a que existe una posibilidad de cesión total o parcial de la empresa, los créditos no vencidos serán exigibles en la fecha de la resolución que apruebe la cesión.
Cuando estos créditos estén expresados en una moneda que no fuera la del lugar donde se hubiera dictado la liquidación judicial, se convertirá a la moneda de dicho lugar, según el cambio oficial el día de la fecha de la resolución.
Artículo L.643-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 119 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los acreedores titulares de un privilegio especial, de una pignoración o de una hipoteca y el Tesoro Público, para sus créditos privilegiados, podrán ejercer individualmente sus acciones contra el deudor, tras la declaración de sus créditos y aunque no hayan sido aún admitidos a ello, si el liquidador no hubiera iniciado la liquidación de los bienes gravados en el plazo de tres meses contados a partir de la resolución que abre o dicta la liquidación judicial.
Cuando el Tribunal haya fijado un plazo en aplicación del artículo L.642-2, los acreedores podrán ejercer individualmente sus acciones contra el deudor tras la expiración de dicho plazo, si no se hubiera presentado ninguna oferta incluyendo ese bien.
En caso de venta de inmuebles, se aplicarán las disposiciones de los párrafos primero, tercero y quinto del artículo L.621-16. Cuando se haya iniciado un procedimiento de embargo inmobiliario antes de la resolución de apertura, el acreedor titular de una hipoteca será dispensado, en el momento del inicio de las reclamaciones individuales, de los actos y requisitos formales efectuados antes de esta resolución.
Artículo L.643-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 120 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario podrá, de oficio o a instancia del liquidador o de un acreedor, ordenar el pago con carácter provisional de una parte proporcional de un crédito admitido definitivamente.
Este pago provisional se podrá subordinar al depósito de una garantía procedente de una entidad de crédito, por parte de su beneficiario.
Cuando la solicitud de provisión sea relativa a un crédito privilegiado de las administraciones financieras, de los organismos de seguridad social, de las instituciones que gestionen el régimen de seguro de desempleo previsto por los artículos L.351-3 y siguientes del Código de Trabajo y de las instituciones regidas por el libro IX del Código de la Seguridad Social, no se deberá la garantía prevista en el párrafo segundo.
Artículo L.643-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si el reparto del precio de los inmuebles fuese precedido de uno o varios repartos de cantidades, los acreedores privilegiados e hipotecarios admitidos concurrirán a dichos repartos en la proporción de sus créditos totales.
Tras la venta de los inmuebles y el pago definitivo en el debido orden de prelación a los acreedores hipotecarios y privilegiados, aquellos que se encuentren en posición adecuada para percibir el valor de los inmuebles por la totalidad de su crédito, sólo cobrarán el importe de su crédito hipotecario inscrito en la clasificación de créditos tras haber deducido las cantidades que ya hubieran recibido.
Estas cantidades deducidas beneficiarán a los acreedores no privilegiados.
Artículo L.643-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los derechos de los acreedores hipotecarios que hubieran sido parcialmente pagados con el reparto del precio de venta de los inmuebles, serán abonados en relación al importe que aún se les adeude tras el pago de la clasificación inmobiliaria. El excedente de los dividendos que hubieran percibido en repartos anteriores con relación al dividendo calculado tras la clasificación será retenido del importe de su clasificación hipotecaria y será incluido en las cantidades que se repartan entre los acreedores no privilegiados.
Artículo L.643-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los acreedores privilegiados o hipotecarios que no hubieran recibido el pago íntegro de sus créditos con el reparto del valor de los inmuebles, concurrirán con los acreedores no privilegiados para percibir lo que aún se les adeudara.
Artículo L.643-7 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I, II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No obstante lo establecido en el párrafo tercero del artículo L.624-25, lo dispuesto en los artículos L.643-4 a L.643-6 se aplicará a los acreedores beneficiarios de una garantía mobiliaria especial.
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CÓDIGO DE COMERCIO Artículo L.643-8 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El importe del activo se deducirá entre todos los acreedores al prorrateo del importe de sus créditos admitidos, una vez deducidos los gastos y costas de la liquidación judicial, los subsidios concedidos al empresario o a los directivos o a sus familias y las cantidades pagadas a los acreedores privilegiados.
La parte correspondiente a los créditos cuya admisión no fuera aún definitiva y, sobre todo las remuneraciones de los dirigentes sociales serán destinadas a la dotación en reserva en tanto que no se adopte una decisión al respecto.
Sección II Del cierre de las operaciones de liquidación judicial Artículos L643-9 a
L643-13
Artículo L.643-9 (Introducido por la Ley nº 2005-845 de 26 de julio de 2005 art 1, art. 121 Diario Oficial de 27 de julio de 2005)
En la resolución que abra o dicte la liquidación judicial, el Tribunal establecerá el plazo al término del cual se deba examinar el cierre del procedimiento. Si no se pudiera acordar el cierre tras la expiración de dicho plazo, el Tribunal podrá prorrogarlo mediante resolución motivada.
Cuando ya no hubiera pasivo exigible o el liquidador dispusiera de las cantidades suficientes para resarcir a los acreedores, o cuando resultara imposible continuar las operaciones de liquidación judicial debido a la insuficiencia del activo, el Tribunal ordenará el cierre del procedimiento de liquidación judicial, tras oír o citar en la debida forma al deudor.
El Tribunal conocerá del asunto a instancia del liquidador, del deudor o del Ministerio FiscaL.Podrá igualmente conocer de oficio. Tras la expiración del plazo de dos años a contar desde la resolución de liquidación judicial, cualquier acreedor tendrá la posibilidad de recurrir al Tribunal para solicitar el cierre del procedimiento.
En caso de haber un plan de cesión, el Tribunal sólo acordará el cierre del procedimiento previa comprobación del respeto de las obligaciones del cesionario.
Artículo L.643-10 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El liquidador deberá proceder a la rendición de cuentas. Será responsable de los documentos que le hayan sido entregados en el transcurso del procedimiento durante cinco años contados a partir de dicha rendición de cuentas.
Artículo L.643-11 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 122 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - La resolución de cierre de la liquidación judicial por insuficiencia de activo no hará recuperar a los acreedores el ejercicio individual de sus acciones contra el deudor, salvo si el crédito se derivara de:
1° Una condena penal del deudor; 2º Derechos vinculados a la persona del acreedor. II.- Sin embargo, el fiador o el codeudor que haya pagado en lugar del deudor podrá ejercitar acciones judiciales
contra este último. III. - Los acreedores recuperarán su derecho a reclamar el pago de su crédito a título individual en los siguientes
casos: 1° El deudor ha sido declarado en quiebra personal; 2° El deudor ha sido reconocido culpable de bancarrota; 3° El deudor o una persona jurídica de la que haya sido dirigente ha sido sometido a un procedimiento de
liquidación judicial concluido por insuficiencia de activos en los cinco años anteriores al procedimiento en el que esté incurso;
4° El procedimiento ha sido abierto como un procedimiento territorial, en el sentido del párrafo 2 del artículo 3 del Reglamento (CE) n° 1346/2000 del Consejo de 29 de mayo sobre procedimientos de insolvencia.
IV. - Además, en caso de fraude a uno o varios acreedores, el Tribunal autorizará el ejercicio de acciones judiciales contra el deudor por parte del acreedor. El Tribunal se pronunciará durante el cierre del procedimiento, tras oír o citar en debida forma al deudor, al liquidador y a los interventores. Podrá pronunciarse asimismo posteriormente al mismo, a petición de cualquier persona interesada, con arreglo a las mismas condiciones.
V. - Los acreedores que recuperen el ejercicio individual de sus acciones en aplicación del presente artículo podrán, si sus créditos hubieran sido admitidos, obtener un título ejecutivo por auto del presidente del Tribunal o, si sus créditos no hubieran sido verificados, obtenerlo en con arreglo a las condiciones de Derecho común.
Artículo L.632-12 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 123 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El cierre de la liquidación judicial suspenderá los efectos de la medida de prohibición de emitir cheques de la que el deudor fuera objeto en aplicación del artículo 65-3 del Decreto de 30 de octubre de 1935 que unifica el derecho en materia de cheques y relativo a las tarjetas de pago, medida aplicada en ocasión del rechazo de un cheque emitido antes de la resolución de apertura del procedimiento.
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CÓDIGO DE COMERCIO Si los acreedores recuperaran el ejercicio individual de sus acciones contra el deudor, la medida de prohibición
volverá a tener efecto a partir de la expedición del título ejecutivo citado en el último párrafo del artículo L.643-11.
Artículo L.643-13 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 124 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si el cierre de la liquidación judicial fuese acordado por insuficiencia de activo y se comprobara que los activos no se han realizado, o que no se han entablado acciones en interés de los acreedores durante el procedimiento, este podrá ser reabierto.
El Tribunal conocerá del asunto a instancia del liquidador designado anteriormente, del Ministerio Fiscal o de cualquier acreedor interesado. Podrá igualmente conocer de oficio. Si conociera a instancia de un acreedor, este deberá justificar que ha consignado los fondos necesarios a los gastos de las operaciones en la secretaría del TribunaL.El importe de los gastos consignados le será reembolsado prioritariamente sobre las cantidades recuperadas tras la reapertura del procedimiento.
Cuando los activos del deudor consistieran en una cantidad de dinero, el procedimiento previsto en el capítulo IV del presente título será aplicable de pleno derecho.
CAPITULO IV De la liquidación judicial simplificada Artículos L644-1 a
L644-6
Artículo L.644-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 125 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El procedimiento de liquidación judicial simplificada estará sujeto a las normas de la liquidación judicial, sin perjuicio de lo dispuesto en el presente capítulo.
Artículo L.644-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 125 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Por excepción a lo dispuesto en el artículo L.642-19, cuando el Tribunal decida aplicar lo dispuesto en el presente capítulo, deberá determinar los bienes del deudor susceptibles de ser objeto de una venta de común acuerdo. El liquidador procederá a la misma dentro de los tres meses siguientes a la publicación de la resolución.
Al finalizar este periodo, se procederá a la subasta pública de los bienes restantes.
Artículo L.644-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 125 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Por excepción a lo dispuesto en el artículo L.641-4, se procederá a la verificación de los créditos que se encuentren en posición adecuada en los repartos, así como de los créditos derivados de un contrato laboral.
Artículo L.644-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 125 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Tras la finalización del procedimiento de verificación y admisión de dichos créditos y tras la realización de los bienes, el liquidador elaborará un proyecto de reparto que depositará en la secretaría del Tribunal para consulta pública y que será objeto de una medida de publicidad.
Cualquier persona interesada podrá impugnar el proyecto de reparto ante el Juez Comisario dentro de un plazo fijado por decreto adoptado en Conseil d'Etat.
El Juez Comisario se pronunciará sobre dichas impugnaciones mediante una resolución que será objeto de una medida de publicidad y de una notificación dirigida a los acreedores interesados. Se podrá interponer un recurso dentro del plazo fijado por decreto adoptado en Conseil d'Etat.
El liquidador procederá al reparto de conformidad con el proyecto o la resolución dictada.
Artículo L.644-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 125 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Como máximo un año después de la apertura del procedimiento, el Tribunal acordará el cierre de la liquidación judicial, tras oír o citar en debida forma al deudor.
Mediante resolución motivada, podrá prorrogar el procedimiento por un periodo que no podrá exceder de tres meses.
Artículo L.644-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 125 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En cualquier momento el Tribunal, mediante resolución especialmente motivada, podrá decidir que se dejen de aplicar las excepciones previstas en el presente capítulo.
TITULO V
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CÓDIGO DE COMERCIO DE LAS RESPONSABILIDADES Y DE LAS SANCIONES Artículos L651-1 a
L650-1
Artículo L.650-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 126 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los acreedores no podrá ser considerados responsables de los perjuicios que se deriven de las ayudas otorgadas, salvo en caso de fraude, intromisión en la gestión del deudor, o si las garantías suscritas como contrapartida de estas ayudas fueran desproporcionados con relación a estos.
En caso de que fuera reconocida la responsabilidad de un acreedor, las garantías suscritas como contrapartida de estas ayudas serán nulas.
CAPITULO I De la responsabilidad por insuficiencia de activo Artículos L651-1 a
L651-4
Artículo L.651-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 127, art. 163 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Lo dispuesto en el presente capítulo y en el capítulo II del presente título será de aplicación a los dirigentes de una persona jurídica de derecho privado que estuviera sometida a un procedimiento colectivo, así como a las personas físicas representantes permanentes de estos dirigentes personas jurídicas.
NOTA: No se han podido efectuar las modificaciones contempladas en el artículo 163 de la Ley n° 2005-845 de 26 de julio de 2005, debido a que la expresión "saneamiento judicial" no figuraba en el artículo L.651-1.
Artículo L.651-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 128 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando al finalizar un plan de salvaguarda o de saneamiento judicial, o un procedimiento de liquidación judicial de una persona jurídica, se pusiera de manifiesto una insuficiencia de activo, el Tribunal podrá decidir, en caso de que una falta de gestión haya contribuido a generar esta insuficiencia de activo, que los créditos de la persona jurídica sean sufragados, en su totalidad o en parte, por todos o algunos de los dirigentes de hecho o de derecho responsables directa o indirectamente de dicha falta. Si hubiera varios dirigentes, el Tribunal podrá declararlos solidariamente responsables, mediante resolución motivada.
La acción prescribirá a los tres años contados a partir de la resolución de aprobación del plan de saneamiento judicial o, en su defecto, de la resolución que dicte la liquidación judicial o ponga fin al plan.
Las cantidades pagadas por los dirigentes en aplicación del párrafo primero entrarán en el patrimonio del deudor. Estas cantidades serán distribuidas entre todos los acreedores al prorrateo.
Artículo L.651-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 129 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el caso previsto en el artículo L.651-2, el Tribunal conocerá a instancia del mandatario judicial, el liquidador o el Ministerio Fiscal.
En favor del interés colectivo de los acreedores, el Tribunal podrá igualmente conocer del asunto a instancia de la mayoría de los acreedores nombrados interventores cuando el mandatario judicial debidamente facultado para ello no hubiera ejercitado las acciones previstas en el mismo artículo, tras un requerimiento que no hubiera surtido efecto en el plazo y las condiciones establecidas por decreto adoptado en Conseil d'Etat.
En el caso previsto en el párrafo primero, el Juez Comisario no podrá formar parte del órgano de resolución ni participar en la deliberación.
Las costas judiciales a cuyo pago hubiera sido condenado el dirigente deberán pagarse con prioridad sobre aquellas que fueran destinadas a liquidar el pasivo.
Artículo L.651-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 130 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación de las disposiciones del artículo L.651-2, de oficio o a instancia de una de las personas mencionadas en el artículo L.651-2 el presidente del Tribunal podrá solicitar al Juez Comisario o, en su defecto, a un miembro del órgano jurisdiccional que él mismo designe, no obstante cualquier disposición legal en contrario, que obtenga las administraciones y organismos públicos, de los organismos de previsión y de seguridad social y de las entidades de crédito, todo tipo de documentación o de información sobre la situación patrimonial de los dirigentes y de los representantes permanentes de los dirigentes personas jurídicas mencionados en el artículo L.651-1 .
El presidente del Tribunal podrá ordenar asimismo, con arreglo a las mismas condiciones, cualquier medida cautelar que considere necesaria respecto de los bienes de los dirigentes o sus representantes citados en el párrafo anterior.
Lo dispuesto en el presente artículo será igualmente de aplicación a los miembros o socios de la persona jurídica en procedimiento de salvaguarda, de saneamiento judicial o de liquidación judicial, cuando los mismos sean
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CÓDIGO DE COMERCIO responsables indefinida y solidariamente de sus deudas.
CAPITULO II De la obligación de pago de las deudas sociales Artículos L652-1 a
L652-5
Artículo L.652-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 131 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Durante un procedimiento de liquidación judicial, el Tribunal podrá decidir cargar a cuenta de uno de los dirigentes de hecho o de derecho de una persona jurídica, la totalidad o parte de las deudas de esta última cuando quede establecido que dicho dirigente ha contribuido al estado de insolvencia cometiendo una de las siguientes faltas:
1º Haber dispuesto de bienes de la persona jurídica como si fueran propios; 2º Bajo la cobertura de la persona jurídica que encubra sus actuaciones, haber realizado actos mercantiles en su
propio interés; 3º Haber hecho de los bienes o del crédito de la persona jurídica un uso contrario al interés de esta con fines
personales o para favorecer a otra persona jurídica o empresa en la que estuviera directa o indirectamente interesado; 4º Haber continuado injustificadamente una explotación deficitaria, con un interés personal, que sólo pudiera
conducir al estado de insolvencia de la persona jurídica; 6º Haber desviado u ocultado la totalidad o parte del activo, o haber aumentado fraudulentamente el pasivo de la
persona jurídica; En los casos contemplados en el presente artículo, no podrá aplicarse lo dispuesto en el artículo L.651-2.
Artículo L.652-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 131 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Si hubiera varios dirigentes responsables, el Tribunal deberá tener en cuenta la falta de cada uno de ellos para determinar la parte de las deudas que le corresponda pagar. Mediante resolución motivada, podrá declararlos solidariamente responsables.
Artículo L.652-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 131 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las cantidades recaudadas serán destinadas al resarcimiento de los acreedores, según el orden de prelación de sus garantías.
Artículo L.652-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 131 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La acción prescribirá a los tres años contados a partir de la resolución de aprobación de la liquidación judicial.
Artículo L.652-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 131 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Lo dispuesto en los artículos L.651-3 y L.651-4 será igualmente de aplicación a la acción prevista en el presente capítulo.
CAPITULO III De la quiebra personal y de otras medidas de inhabilitación Artículos L653-1 a
L653-11
Artículo L.653-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 132 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Cuando se abra un procedimiento de saneamiento judicial o de liquidación judicial, se aplicará las disposiciones del presente capítulo:
1° A las personas físicas que ejerzan la profesión de comerciante, de agricultor o que estén inscritas en el Registro Central de Artesanos, así como a cualquier persona física que ejerza una actividad profesional autónoma, incluyendo una profesión liberal, sujeta a un estatuto legal o reglamentario o cuyo título esté protegido;
2º A las personas físicas, dirigentes de hecho o de derecho de personas jurídicas; 3º A las personas físicas, representantes permanentes de personas jurídicas, dirigentes de las personas jurídicas
definidas en el apartado 2º. Dichas disposiciones no serán de aplicación a las personas físicas o dirigentes de personas jurídicas que ejerzan
una actividad profesional autónoma y estén, en dicho concepto, sujetas a determinadas normas de disciplina. II. - Las acciones previstas por el presente capítulo prescribirán a los tres años contados a partir de la resolución de
apertura del procedimiento mencionado en el punto I.
Artículo L.653-2
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CÓDIGO DE COMERCIO (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 133 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La quiebra personal conllevará la prohibición de dirigir, gestionar, administrar o controlar, directa o indirectamente cualquier empresa comercial o artesanal, cualquier explotación agrícola o cualquier empresa que tenga otra actividad económica independiente, así como cualquier persona jurídica.
Artículo L.653-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 134 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal podrá acordar la quiebra personal de cualquier persona de las mencionadas en el apartado 1° del punto I del artículo L.653-1, sin perjuicio de las excepciones previstas en el último párrafo del punto I del mismo artículo, que haya cometido alguno de los siguientes actos:
1º Haber continuado injustificadamente una explotación deficitaria que sólo podía conducir a la insolvencia; 2º Derogado. 3º Haber desviado u ocultado la totalidad o parte del activo, o haber aumentado fraudulentamente su pasivo.
Artículo L.653-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 135 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal podrá acordar la quiebra personal de cualquier dirigente, de hecho o de derecho, de una persona jurídica, que haya cometido una de las faltas mencionadas en el artículo L.652-1.
Artículo L.653-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 136 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal podrá acordar la quiebra personal de cualquier persona de las mencionadas en el artículo L.653-1, que haya cometido uno de los siguientes actos:
1º Haber ejercido una actividad comercial, artesanal o agrícola o una función de dirección o de administración de una persona jurídica, infringiendo una prohibición prevista por la Ley;
2º Haber realizado compras para una reventa por debajo de su precio o empleando métodos ruinosos para procurarse fondos con la intención de evitar o retardar la apertura del procedimiento de saneamiento judicial o de liquidación judicial;
3º Haber suscrito, por cuenta ajena, sin contrapartida, obligaciones consideradas demasiado importantes en el momento de su conclusión en atención a la situación de la empresa o de la persona jurídica;
4º Haber pagado o mandado pagar, tras la declaración de insolvencia y con conocimiento de causa de esta, a un acreedor en perjuicio de los demás acreedores;
5° Haber obstaculizado su buen desarrollo absteniéndose voluntariamente de cooperar con los órganos del procedimiento;
6° Haber hecho desaparecer documentos contables, no haber llevado ninguna contabilidad infringiendo los textos aplicables, o haber llevado una contabilidad ficticia manifiestamente incompleta o irregular con respecto a las disposiciones legales.
Artículo L.653-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal podrá acordar la quiebra personal del dirigente de la persona jurídica que no haya saldado los créditos de esta que estuvieran a su cargo.
Artículo L.653-7 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 137 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En los casos previstos en el artículo L.653-3 a L.653-6 y L.653-8, el Tribunal conocerá del asunto a instancia del mandatario judicial, del liquidador o del Ministerio Fiscal.
En favor del interés colectivo de los acreedores, el Tribunal podrá igualmente conocer del asunto, en cualquier momento del procedimiento, a instancia de la mayoría de los acreedores nombrados interventores cuando el mandatario judicial debidamente facultado para ello no hubiera ejercitado las acciones previstas en el mismo artículo, tras un requerimiento que no hubiera surtido efecto en el plazo y las condiciones establecidas por decreto adoptado en Conseil d'Etat.
En los mismos casos previstos en el párrafo primero, el Juez Comisario no podrá formar parte del órgano de resolución ni participar en la deliberación.
Artículo L.653-8 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 138, art. 165 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En los casos previstos en los artículos L.653-3 a L.653-6, el Tribunal podrá acordar, en lugar de la quiebra personal, la prohibición de dirigir, gestionar, administrar o controlar, directa o indirectamente, cualquier empresa mercantil o artesanal, cualquier explotación agrícola o cualquier persona jurídica.
La prohibición mencionada en el primer párrafo podrá ser dictada igualmente contra cualquier persona mencionada
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CÓDIGO DE COMERCIO en el artículo L.625-1 que, de mala fe, no hubiera remitido al mandatario judicial, al administrador o al liquidador la información que la misma debiera remitirle dentro del plazo de un mes a partir de la resolución de apertura, en aplicación del artículo L.622-6.
Dicha prohibición podrá ser dictada asimismo contra cualquier persona de las mencionadas en el artículo L.653-1 que hubiera omitido realizar la declaración de insolvencia en el plazo de cuarenta y cinco días y que además no hubiera solicitado la apertura de un procedimiento de conciliación.
Artículo L.653-9 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 165 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El derecho de voto de los dirigentes afectados por la quiebra personal o por la prohibición prevista en el artículo L.653-8 será ejercido en las juntas de personas jurídicas sometidas a un procedimiento de saneamiento judicial o de liquidación judicial por un mandatario designado por el Tribunal a este efecto, a petición del administrador, del liquidador o del auditor para la ejecución del plan.
El Tribunal podrá requerir a sus dirigentes o a algunos de ellos, que cedan sus acciones o sus participaciones sociales a la persona jurídica o bien ordenar su cesión forzosa por diligencia de un mandatario judicial, previo informe pericial, si fuera necesario. El producto de la venta será destinado al pago de la parte de los créditos sociales en el caso de que dichos dirigentes hubieran sido declarados responsables de estos créditos.
Artículo L.653-10 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 139 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Tribunal que acuerde la quiebra personal podrá decretar la prohibición de ejercer una función pública electiva La incapacidad se declarará por un plazo igual al de la quiebra personal y no podrá exceder de cinco años. Cuando la decisión haya adquirido firmeza, el Ministerio Fiscal notificará al interesado la incapacidad, que surtirá efecto a partir de la fecha de dicha notificación.
Artículo L.653-11 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 140 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando el Tribunal acuerde la quiebra personal o decrete la prohibición prevista en el artículo L.653-8, determinará la duración de la medida, que no podrá ser superior a quince años. Podrá ordenar la ejecución provisional de su resolución. Las inhabilitaciones, las prohibiciones y la incapacidad de ejercer una función pública electiva terminarán de pleno derecho en la fecha fijada, sin necesidad de resolución judicial.
La resolución de cierre por extinción del pasivo, incluso tras la ejecución de la obligación de pago de las deudas sociales por parte del empresario, restablecerá a este o a los dirigentes de la persona jurídica en todos sus derechos. Los dispensará o de todas las inhabilitaciones, prohibiciones e incapacidad de ejercer una función pública electiva.
El interesado podrá solicitar al Tribunal que lo releve, en su totalidad o en parte, de las inhabilitaciones, prohibiciones e incapacidad de ejercer una función pública electiva si hubiera aportado una contribución suficiente para el pago del pasivo.
Cuando se le hubiera impuesto la prohibición prevista en el artículo L.653-8, el interesado podrá ser relevado de la misma si demostrara mediante garantías su capacidad para dirigir o controlar una o varias empresas o personas de las citadas en el mismo artículo.
Cuando haya un levantamiento total de las inhabilitaciones, prohibiciones e incapacidad, la resolución del Tribunal tendrá valor de rehabilitación.
CAPITULO IV De la bancarrota y de otras infracciones Artículos L654-1 a
L654-20
Sección I De la bancarrota Artículos L654-1 a
L654-7
Artículo L.654-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 141 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Lo dispuesto en la presente sección será aplicable: 1° A cualquier comerciante, agricultor, a cualquier persona inscrita en el Registro Central de Artesanos y a
cualquier persona física que ejerza una actividad profesional autónoma, incluyendo una profesión liberal, sujeta a un estatuto legal o reglamentario o cuyo título esté protegido;
2º A cualquier persona que, directa o indirectamente, de hecho o de derecho, haya dirigido o liquidado una persona jurídica de derecho privado;
3º A las personas físicas, representantes permanentes de personas jurídicas, dirigentes de las personas jurídicas definidas en el apartado 2º anterior.
Artículo L.654-2
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CÓDIGO DE COMERCIO (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 142 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de apertura de un procedimiento de saneamiento judicial o de liquidación judicial, serán consideradas culpables de bancarrota las personas mencionadas en el artículo L.654-1, que hayan cometido uno de los siguientes actos:
1º Haber realizado compras para una reventa por debajo de su precio, o haber empleado métodos ruinosos para procurarse fondos, con la intención de evitar o retrasar la apertura del procedimiento de saneamiento judicial;
2º Haber desviado u ocultado la totalidad o parte del activo del deudor; 3º Haber aumentado fraudulentamente el pasivo del deudor; 4º Haber llevado una contabilidad ficticia o hecho desaparecer documentos contables de la empresa o de la
persona jurídica, o haberse abstenido de llevar cualquier tipo de contabilidad cuando los textos aplicables obligasen a ello;
5º Haber llevado una contabilidad manifiestamente incompleta o irregular con respecto a las disposiciones legales.
Artículo L.654-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 142 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se castigará con cinco años de prisión y 75.000 euros de multa al culpable del delito de bancarrota. Estarán sujetos a la misma pena los cómplices de bancarrota, aunque no tengan la condición de comerciante,
agricultor o artesano y aunque no dirijan, directa o indirectamente, de hecho o de derecho, una persona jurídica de derecho privado.
Artículo L.654-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando el autor o el cómplice de la bancarrota sea un dirigente de una empresa de servicios de inversión, las penas serán aumentadas a siete años de prisión y 100.000 euros de multa.
Artículo L.654-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 142 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las personas físicas que contravinieran lo dispuesto en los artículos L.654-3 y L.654-4 estarán asimismo sujetas a las penas complementarias siguientes:
1º La prohibición de ejercer sus derechos cívicos, civiles y familiares, con arreglo a las modalidades previstas por el artículo 131-26 del Código Penal;
2º La prohibición, por un período de cinco años como máximo, de ejercer una función pública o de ejercer la actividad profesional o social en cuyo ejercicio o con ocasión de cuyo ejercicio se hubiera cometido la infracción, a menos que una jurisdicción civil o comercial ya hubiera dictado una medida semejante mediante resolución definitiva;
3º La exclusión de los contratos públicos por un período de cinco años como máximo; 4º La prohibición, por un período de cinco años como máximo, de emitir cheques salvo los que permitan la retirada
de fondos por parte del librador ante el librado o aquellos que estén certificados; 5º La publicación mediante edictos o la difusión de la resolución judicial en las condiciones previstas por el artículo
131-35 del Código Penal;
Artículo L.654-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 143 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La jurisdicción penal que declarara culpable de bancarrota a una de las personas mencionadas en el artículo L.654-1, podrá acordar además la quiebra personal de esta, o la prohibición prevista en el artículo L.654-8, a menos que una jurisdicción civil o comercial ya hubiera dictado una medida semejante mediante resolución definitiva.
Artículo L.654-7 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I, II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Las personas jurídicas podrán ser declaradas responsables penalmente de las infracciones previstas por los artículos L.654-3 y L.654-4, con arreglo a las condiciones previstas en el artículo 121-2 del Código Penal.
II. - Las penas que se podrán imponer a las personas jurídicas son: 1º La multa en las condiciones previstas por el artículo 131-38 del Código Penal; 2º Las penas mencionadas en el artículo 131-39 del Código Penal. III. - La prohibición mencionada en el apartado 2º del artículo 131-39 del Código Penal se aplicará a la actividad en
cuyo ejercicio o con ocasión de cuyo ejercicio se hubiera cometido la infracción.
Sección II De otras infracciones Artículos L654-8 a
L654-15
Artículo L.654-8 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 144 Diario Oficial de 27 de julio de 2005, con
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CÓDIGO DE COMERCIO entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se castigará con pena de dos años de prisión y multa de 30.000 euros: 1° A cualquier persona física de las mencionadas en el artículo L.654-1, por el hecho de suscribir una hipoteca o
una pignoración o de realizar un acto de disposición sin la autorización prevista en el artículo L.622-7 o de pagar, en su totalidad o en parte, una deuda infringiendo la prohibición mencionada en el párrafo primero del presente artículo, todo ello durante el período de observación.
2° A cualquier persona de las mencionadas en el artículo L.654-1, por el hecho de efectuar un pago infringiendo las condiciones de pago del pasivo previstas en el plan de salvaguarda o en el plan de saneamiento judicial, de realizar un acto de disposición sin la autorización prevista en el artículo L.626-14, o de proceder a la cesión de un bien intransferible en virtud de un plan de cesión, en aplicación del artículo L.642-10;
3º A cualquier persona, durante el período de observación o de ejecución del plan de salvaguarda o del plan de saneamiento judicial, que conociendo la situación del deudor, concertase con este alguno de los actos mencionados en los apartados 1º y 2º o recibiese del mismo un pago irregular.
Artículo L.654-9 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 145 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Será castigado con las penas previstas por los artículos L.626-3 a L.626-5 el que: 1º Sustrajera, ocultara o disimulara en interés de las personas mencionadas en el artículo L.626-1, todo o parte de
los bienes, muebles o inmuebles de estas, todo ello sin perjuicio de la aplicación del artículo 121-7 del Código Penal; 2º Declarara fraudulentamente créditos supuestos, en el procedimiento de salvaguarda, de saneamiento judicial o
de liquidación judicial, tanto en su nombre como por persona interpuesta; 3º Ejerciera una actividad comercial, artesanal, agrícola o cualquier otra actividad autónoma bajo nombre ajeno o
nombre supuesto, y fuera culpable de una de las infracciones previstas en el artículo L.654-14.
Artículo L.654-10 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 146 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Serán castigados con las penas previstas por el artículo 341-1 del Código Penal el cónyuge, los descendientes o los ascendientes o los colaterales o parientes por afinidad de las personas mencionadas en el artículo L.626-1, que desviaran, apartaran, ocultaran efectos que dependieran del activo del deudor sometido a un procedimiento de salvaguarda o de saneamiento judicial.
Artículo L.654-11 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 146 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En los casos previstos por los artículos anteriores, el órgano jurisdiccional que conociere del asunto resolverá, aunque hubiera sobreseimiento:
1º De oficio, sobre la reintegración en el patrimonio del deudor de todos los bienes, derechos o acciones que hubieran sido fraudulentamente sustraídos;
2º Sobre las indemnizaciones por daños y perjuicios que fueran reclamadas.
Artículo L.654-12 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 146 III, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Será castigado con las penas previstas por el artículo 314-2 del Código Penal el administrador, el mandatario judicial, el liquidador o el auditor para la ejecución del plan que:
1º Perjudicara voluntariamente los intereses de los acreedores o del deudor utilizando en su propio beneficio cantidades percibidas en ocasión del cumplimiento de su misión, o haciéndose atribuir ventas sabiendo que no le correspondían;
2º Hiciera uso de los poderes de los que dispusiera, para su propio interés, a sabiendas de que actúa en contra de los intereses de los acreedores o del deudor.
II. - Será castigado con las mismas penas cualquier administrador, mandatario judicial, liquidador, auditor para la ejecución del plan o cualquier otra persona, exceptuando los representantes de los trabajadores, que adquiriera por su cuenta, directa o indirectamente, bienes del deudor o los utilizara para su propio beneficio, tras haber participado de alguna manera en el procedimiento. El órgano jurisdiccional competente declarará la nulidad de la compra y resolverá sobre la indemnización por daños y perjuicios que fuera reclamada.
Artículo L.654-13 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 163 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Será castigado con las penas previstas por el artículo 314-1 del Código Penal el acreedor que concluya un contrato que conlleve una ventaja particular con relación al deudor tras la resolución de apertura del procedimiento de salvaguarda, de saneamiento judicial o de liquidación judicial.
El órgano jurisdiccional competente declarará la nulidad de dicho contrato.
Artículo L.654-14 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I, II, art. 163 Diario Oficial de 27 de julio de 2005, con
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CÓDIGO DE COMERCIO entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Serán castigadas con las penas previstas en los artículos L.654-3 a L.654-5 las personas mencionadas en los apartados 2º y 3º del artículo L.654-1, que desviaran u ocultaran o intentaran desviar u ocultar todo o parte de sus bienes, o se hicieran reconocer de modo fraudulento deudoras de cantidades que no debían con la intención de sustraer todo o parte de su patrimonio a las reclamaciones de la persona jurídica que hubiera sido objeto de una resolución de apertura de un procedimiento de salvaguarda, de saneamiento judicial o de liquidación judicial o a las reclamaciones de los socios o acreedores de la persona jurídica.
Artículo L.654-15 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I, II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Será castigado con dos años de prisión y 375.000 euros de multa el que ejerciera una actividad profesional o funciones infringiendo las prohibiciones, inhabilitaciones o incapacitación previstas por los artículos L.653-2 y L.653-8.
Sección III De las normas de los procedimientos Artículos L654-16 a
L654-20
Artículo L.654-16 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 146 IV Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación de las disposiciones de las secciones 1 y 2 del presente capítulo, la prescripción de la acción pública no será efectiva hasta el día de la resolución de apertura del procedimiento de salvaguarda, de saneamiento judicial o de liquidación judicial cuando los hechos de los que se le acusa se hubieran producido antes de dicha fecha.
Artículo L.654-17 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 146 V, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La jurisdicción penal será competente, bien a instancia del Ministerio Fiscal, bien por constitución de parte civil del administrador, del mandatario judicial, del representante de los trabajadores, del auditor para la ejecución del plan, del liquidador o de la mayoría de los acreedores nombrados interventores cuando el mandatario judicial debidamente facultado para ello no hubiera ejercitado las acciones previstas, tras un requerimiento que no hubiera surtido efecto en el plazo y las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Artículo L.654-18 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Ministerio Fiscal podrá requerir del administrador o del liquidador la entrega de todas las actas y documentos detentados por estos últimos.
Artículo L.654-19 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las costas de la acción ejercitada por el administrador, el mandatario judicial, el representante de los trabajadores, el auditor para la ejecución del plan o el liquidador serán por cuenta del Tesoro Público en caso de sobreseimiento.
En caso de condena, el Tesoro Público sólo podrá ejercer su recurso contra el deudor tras el cierre de las operaciones de liquidación judicial.
Artículo L.654-20 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las resoluciones y sentencias condenatorias dictadas en aplicación del presente capítulo serán publicadas a cargo del condenado.
TITULO VI DE LAS DISPOSICIONES GENERALES DE PROCEDIMIENTO Artículos L661-1 a
L663-4
CAPITULO I De las vías de recurso Artículos L661-1 a
L661-11
Artículo L.661-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 147, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Serán susceptibles de recurso de apelación o de recurso de casación: 1º Las resoluciones relativas a la apertura de los procedimientos de salvaguarda, de saneamiento judicial y de
liquidación judicial por parte del deudor, del acreedor demandante así como del Ministerio Fiscal, aunque este no haya
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CÓDIGO DE COMERCIO actuado como parte principal;
2º Las resoluciones relativas a la liquidación judicial, o las resoluciones de aprobación o denegación del plan de salvaguarda o el plan de saneamiento judicial por parte del deudor, del administrador, del mandatario judicial, del comité de empresa o, en su defecto, de los delegados del personal, así como del Ministerio Fiscal, aunque este no haya actuado como parte principal;
3º Las resoluciones relativas a la modificación del plan de salvaguarda o del plan de saneamiento judicial por parte del deudor, del auditor para la ejecución del plan, del comité de empresa o, en su defecto de los delegados del personal, así como del Ministerio Fiscal, aunque este no haya actuado como parte principal.
II. - La apelación del Ministerio Fiscal será suspensiva, excepto la relativa a las resoluciones relativas a la apertura del procedimiento de salvaguarda o de saneamiento judicial.
III. - En ausencia del comité de empresa o del delegado de personal, el representante de los trabajadores ejercerá las vías de recurso abiertas a estas instituciones por las disposiciones del presente artículo.
Artículo L.661-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 148 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las resoluciones relativas a la apertura del procedimiento serán susceptibles de impugnación por parte de terceros. La resolución relativa a la tercería será susceptible de apelación y de un recurso de casación por parte del tercero oponente.
Artículo L.661-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 148 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las resoluciones relativas a la aprobación o modificación del plan de salvaguarda o del plan de saneamiento judicial serán susceptibles de impugnación por parte de terceros.
La resolución relativa a la tercería será susceptible de apelación y de recurso de casación por parte del tercero oponente.
Artículo L.661-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 149 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las resoluciones relativas al nombramiento o a la sustitución del Juez Comisario no será susceptibles de recurso.
Artículo L.661-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 150 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Sólo serán susceptibles de recurso de apelación y de recurso de casación por parte del Ministerio Fiscal, las resoluciones relativas a los recursos interpuestos contra los autos del Juez Comisario dictados en aplicación de los artículos L.642-18 y L.642-19.
Artículo L.661-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1 I, art. 151, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Sólo serán susceptibles de recurso de apelación por parte del Ministerio Fiscal, aunque este no hubiera actuado como parte principal:
1º Las resoluciones relativas al nombramiento o la sustitución del administrador, del mandatario judicial, del liquidador, de los interventores y de los peritos;
2° Las resoluciones relativas a la duración del periodo de observación, a la continuidad o al cese de la actividad. II. - Sólo serán susceptibles de apelación, por parte del deudor o del Ministerio Fiscal, aunque este no haya
actuado como parte principal, o del cesionario o del cocontratante mencionado en el artículo L.642-7, las resoluciones de aprobación o denegación del plan de cesión de la empresa. El cesionario no podrá interponer apelación contra la resolución de aprobación del plan de cesión salvo que este le imponga otras cargas que no fueran las obligaciones suscritas durante la preparación del plan. El cocontratante mencionado en el artículo L.642-7 sólo podrá interponer una apelación contra la parte de la resolución que conlleve la cesión del contrato.
III. - Sólo serán susceptibles de apelación las resoluciones que modifiquen el plan de cesión, bien por parte del Ministerio Fiscal, aunque este no haya actuado como parte principal, o bien por parte del cesionario, dentro de los límites mencionados en el párrafo anterior.
IV. - La apelación del Ministerio Fiscal será suspensiva.
Artículo L.661-7 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I, II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No podrá ejercerse ni impugnación por parte de terceros, ni recurso de casación, contra las sentencias dictadas en aplicación del punto I del artículo L.661-6.
El recurso de casación sólo estará abierto al Ministerio Fiscal, contra las sentencias dictadas en aplicación de los puntos II y III del artículo L.623-6.
Artículo L.661-8
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CÓDIGO DE COMERCIO (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 163 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando el Ministerio Fiscal deba tener comunicación de los procedimientos de salvaguarda, de saneamiento judicial o de liquidación judicial, así como de las causas relativas a la responsabilidad de los dirigentes sociales, el Ministerio Fiscal será el único legitimado a interponer un recurso de casación por defecto de comunicación.
Artículo L.661-9 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 152 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de invalidación del fallo que ordenara remitir el asunto ante el Tribunal, la Cour d'Appel podrá abrir un nuevo período de observación. Este periodo durará como máximo tres años.
En caso de apelación de la resolución relativa a la liquidación judicial durante el periodo de observación o de la resolución de aprobación o denegación de un plan de salvaguarda o de un plan de saneamiento judicial, y cuando se interrumpa la ejecución provisional, se prolongará el periodo de observación hasta la sentencia de la Cour d'Appel.
Artículo L.661-10 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación del presente título, los miembros del comité de empresa o los delegados del personal designarán de entre sus miembros la persona habilitada para ejercer en su nombre las vías de recurso.
Artículo L.661-11 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 153 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las resoluciones dictadas en aplicación de los capítulos I, II y III del título V será susceptibles de recurso de apelación por parte del Ministerio Fiscal, aunque este no hubiera actuado como parte principal.
La apelación del Ministerio Fiscal será suspensiva.
CAPITULO II Otras disposiciones Artículos L662-1 a
L662-6
Artículo L.662-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No será admisible ninguna impugnación o procedimiento de ejecución, de cualquier tipo que fuere, sobre las cantidades pagadas a la Caja de Depósitos y Consignaciones.
Artículo L.662-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 154 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando lo justifiquen los intereses en juego, la Cour d'Appel podrá decidir remitir el asunto ante una jurisdicción del mismo tipo, competente en la demarcación de dicha Cour d'Appel, para conocer de los procedimientos de salvaguarda, de saneamiento judicial o de liquidación judicial, con arreglo a las condiciones establecidas por decreto. La Cour de Cassation, actuando con arreglo a las mismas condiciones, podrá remitir el asunto ante un órgano jurisdiccional situado en la demarcación de otra Cour d'Appel.
Artículo L.662-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 156 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los debates ante el Tribunal de Commerce y el Tribunal de Grande Instance se celebrarán a puerta cerrada. No obstante, será conforme a derecho la publicidad de los debates tras la apertura del procedimiento, siempre que el deudor, el mandatario judicial, el administrador, el liquidador, el representante de los trabajadores o el Ministerio Fiscal así lo soliciten. El presidente del Tribunal podrá decidir que los debates se celebren o se prosigan a puerta cerrada, si se produjeran incidentes susceptibles de obstaculizar el correcto funcionamiento de la Justicia.
Por excepción a lo dispuesto en el párrafo primero, los debates relativos a las medidas adoptadas en aplicación de los capítulos I, II y III del título V se celebrarán en audiencia pública. El presidente del Tribunal podrá decidir que se celebren a puerta cerrada siempre que el deudor lo solicite antes de su apertura.
Artículo L.662-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1 I, II, art. 157, art. 165 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cualquier despido previsto por el administrador, el empresario o el liquidador, según el caso, del representante de los empleados mencionados en los artículos L.621-4 y L.641-1 será obligatoriamente sometido al comité de empresa, que emitirá su dictamen sobre el proyecto de despido.
El despido sólo podrá producirse con la autorización del inspector de trabajo del que dependa el establecimiento. Cuando no exista comité de empresa en el establecimiento, se recurrirá directamente al inspector de trabajo.
Sin embargo, en caso de falta grave, el administrador, el empresario o el liquidador, según el caso, tendrá la
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CÓDIGO DE COMERCIO facultad de acordar la suspensión temporal inmediata del interesado hasta que se dicte la resolución definitiva. En caso de denegación del despido, se anulará la suspensión temporal y sus efectos quedarán suprimidos de pleno derecho.
La protección instituida a favor del representante de los trabajadores para el ejercicio de su misión fijada en el artículo L.625-2 cesará cuando todas las cantidades pagadas al representante de los acreedores por las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo, en aplicación del párrafo décimo del artículo L.143-11-7 de dicho Código, hayan sido devueltas por este último a los trabajadores.
Cuando el representante de los trabajadores ejerza las funciones del comité de empresa o, en su defecto, de los delegados del personal, la protección cesará al final de la última audiencia o consulta prevista por el procedimiento de saneamiento judicial.
Artículo L.662-5 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los fondos detentados por las comunidades de propietarios en concepto de los procedimientos de saneamiento judicial o de liquidación de bienes regulados por la Ley n° 67-563 de 13 de julio de 1967 sobre el procedimiento de saneamiento judicial, la liquidación de bienes, la quiebra personal y las bancarrotas serán inmediatamente ingresados en la cuenta de depósito de la Caja de Depósitos y Consignaciones. En caso de retraso, el liquidador deberá pagar un interés por las cantidades que no haya ingresado, aplicando una tasa igual al interés legal incrementado en cinco puntos.
Artículo L.662-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 159 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El secretario del Tribunal de Commerce y el del Tribunal de Grande Instance elaborarán al final de cada semestre el registro de administradores judiciales y mandatarios judiciales designados por el órgano jurisdiccional, así como el listado de las demás personas a las que dicho órgano jurisdiccional hubiera otorgado durante el mismo periodo un mandato vinculado a los procedimientos regulados por el presente libro. Deberán indicar, para cada uno de los interesados, los diferentes asuntos que les hubieran sido confiados y las informaciones relativas a los deudores, siendo esta últimas precisadas por decreto adoptado en Conseil d'Etat. Adjuntarán como anexo el importe de la cifra de negocios realizada por el mismo en concepto de los mandatos que le hubieran sido confiados por el órgano jurisdiccional durante el semestre transcurrido.
Estas informaciones se remitirán al Ministro de Justicia, al Ministerio Fiscal, al órgano jurisdiccional correspondiente y a las autoridades encargadas del control y de la inspección de los administradores y mandatarios judiciales, conforme a las modalidades establecidas por decreto adoptado en Conseil d'Etat.
CAPITULO III De las costas del procedimiento Artículos L663-1 a
L663-4
Artículo L.663-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1 I, II, art. 158 I, art. 163 Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Cuando los fondos del deudor no bastasen inmediatamente para ello, el Tesoro Público, por resolución motivada del Juez Comisario o del presidente del Tribunal, adelantará los derechos, gravámenes, cánones o emolumentos percibidos por los secretarios de los órganos jurisdiccionales, las retribuciones y emolumentos de los procuradores y las remuneraciones des los abogados, en la medida en que estas estén reguladas, así como los gastos de comunicación y publicidad y la remuneración de los técnicos nombrados por el órgano jurisdiccional previo acuerdo del Ministerio Fiscal, siempre que sean relativos a:
1º Las decisiones que se produzcan en el transcurso del procedimiento de salvaguarda, de saneamiento judicial o de liquidación judicial, adoptadas en favor del interés colectivo de los acreedores o del deudor;
2º El ejercicio de las acciones emprendidas para conservar o para reconstituir el patrimonio del deudor, o ejercidas en favor del interés colectivo de los acreedores;
3º Y el ejercicio de las acciones citadas en los artículos L.653-3 a 653-6. No se requerirá el acuerdo del Ministerio Fiscal para abonar el adelanto de las remuneración de los oficiales
públicos designados por el Tribunal en aplicación del artículo L.621-4, para realizar el inventario previsto en el artículo L.622-6, ni para proceder a la tasación contemplada en el artículo L.641-4.
II. - El Tesoro Público, mediante auto motivado del presidente del Tribunal, adelantará también los gastos correspondientes al ejercicio de la acción de resolución y de modificación del plan.
III. - Estas disposiciones serán aplicables a los procedimientos de apelación o de casación de todas las resoluciones mencionadas anteriormente.
IV.- Para el reembolso de esos adelantos, el Tesoro Público tendrá la garantía del privilegio de las costas procesales.
Artículo L.663-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 158 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Por decreto adoptado en Conseil d'Etat se establecerán las modalidades de remuneración de los administradores
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CÓDIGO DE COMERCIO judiciales, de los mandatarios judiciales, de los auditores para la ejecución del plan y de los liquidadores. Dicha remuneración excluirá cualquier otra remuneración o reembolso de gastos por el mismo procedimiento o por una misión derivada del mismo.
Artículo L.663-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, art. 158 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando el producto de la realización de los activos de la empresa no permita que el liquidador o el mandatario judicial obtengan, en concepto de la remuneración que se les debe en aplicación del artículo L.663-2, una cantidad por lo menos igual al umbral fijado por decreto adoptado en Conseil d'Etat, el Tribunal declarará el expediente escaso de recursos, a propuesta del Juez Comisario, basándose en los documentos justificantes presentados por el liquidador o el mandatario judicial.
La misma resolución fijará la cantidad correspondiente a la diferencia entre la remuneración efectivamente percibida por el liquidador o el mandatario judicial y el umbral mencionado en el párrafo anterior.
La cantidad abonada al mandatario judicial o al liquidador será retenida sobre una parte proporcional de los intereses pagados por la Caja de Depósitos y Consignaciones en concepto de los fondos depositados en aplicación de los artículos L.622-18, L.626-25 y L.641-8. Esta parte proporcional se destinará en especial a un fondo gestionado por la Caja de Depósitos y Consignaciones bajo el control de un comité de administración. Las condiciones de aplicación del presente párrafo serán establecidas por decreto adoptado en Conseil d'Etat.
Artículo L.663-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario tendrá derecho al reembolso de sus gastos de desplazamiento sobre el activo del deudor.
TITULO VII DISPOSICIONES ESPECIALES APLICABLES A LOS DEPARTAMENTOS DE
MOSELLE, BAJO-RIN Y ALTO-RIN Artículos L670-1 a L670-8
Artículo L.670-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 160 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Lo dispuesto en el presente título será de aplicación a las personas físicas, domiciliadas en los departamentos de Moselle, Bajo-Rin y Alto-Rin, y a sus sucesores, que no fueran comerciantes, ni personas inscritas en el Registro Central de Artesanos, ni agricultores, ni personas que ejercieran cualquier otra actividad profesional autónoma, incluyendo una profesión liberal sujeta a un estatuto legal o reglamentario, cuando fueran de buena fe y estuvieran en situación de insolvencia notoria. Las disposiciones de los títulos II a IV del presente libro serán de aplicación siempre y cuando no sean contrarias a las del presente título.
Antes de que se resuelva sobre la apertura del procedimiento, el Tribunal, si lo considera útil, podrá nombrar a una persona competente elegida de entre la lista de organismos autorizados, para recabar informaciones sobre la situación económica y social del deudor.
Las inhabilitaciones y prohibiciones derivadas de la quiebra personal no serán aplicables a estas personas. Las condiciones de aplicación del presente artículo serán fijadas por decreto.
Artículo L.670-2 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 160 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El Juez Comisario podrá dispensar de la obligación de inventario a las personas citadas en el artículo L.670-1.
Artículo L.670-3 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art.1, I, art. 160 III Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En caso de liquidación judicial, no se procederá a la comprobación de los créditos si el producto de la realización fuera íntegramente absorbido por las costas judiciales, salvo decisión en contrario del Juez Comisario.
Artículo L.670-4 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Durante el cierre de las operaciones de liquidación judicial, el Tribunal podrá imponer al deudor, de manera excepcional, una contribución destinada a la liquidación del pasivo en las proporciones que determine. En su resolución el Tribunal nombrará a un auditor encargado de velar por la ejecución de la contribución.
Para fijar las proporciones de la contribución, el Tribunal tendrá en cuenta las posibilidades de contribución del deudor, las cuales serán determinadas en función de sus recursos y gastos incompresibles. El tribunal reducirá el importe de la contribución en caso de disminución de los recursos o de aumento de los gastos del deudor.
El deudor deberá abonar su contribución dentro del plazo de dos años. Las condiciones de aplicación del presente artículo serán establecidas por decreto.
Artículo L.670-5
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CÓDIGO DE COMERCIO (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I, II, art. 160 IV Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Además de los casos previstos en el artículo L.643-11, los acreedores recuperarán su derecho de reclamación individual en contra del deudor cuando el Tribunal constatara, de oficio o a petición del comisario, la no ejecución de la contribución mencionada en el artículo L.670-4.
Artículo L.670-6 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Se hará mención de la resolución de liquidación judicial en el archivo previsto en el artículo L.333-4 del Código de Consumo durante un periodo de ocho años, dejándose de hacer mención de la misma en el certificado de penales del interesado.
Artículo L.670-7 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La base y la liquidación de la tasa sobre las costas judiciales en materia de saneamiento judicial o de liquidación judicial se pagarán provisionalmente según las disposiciones de las leyes locales.
Artículo L.670-8 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 1 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Lo dispuesto en el artículo 1 de la Ley nº 75-1256 de 27 de diciembre de 1975 relativa a determinadas ventas de bienes inmuebles en los Departamentos de Alto-Rin, Bajo-Rin y Moselle dejarán de ser aplicables a las ventas forzosas de inmuebles incluidos en el patrimonio de un deudor que sea objeto de un procedimiento de saneamiento judicial iniciado con posterioridad al 1 de enero de 1986.
LIBRO VII DE LA ORGANIZACIÓN DEL COMERCIO Artículos L711-1 a
L740-3 TITULO I DE LAS CÁMARAS DE COMERCIO E INDUSTRIA Artículos L711-1 a
L713-18
CAPITULO I De la organización y de las atribuciones Artículos L711-1 a
L711-10
Artículo L711-1 Las Cámaras de Comercio e Industria son los órganos representativos de los intereses comerciales e industriales
de su circunscripción ante los poderes públicos. Son establecimientos públicos económicos.
Artículo L711-2 Las Cámaras de Comercio e Industria tendrán como atribuciones: 1º Dar al Gobierno los dictámenes e informaciones que les fueran solicitados sobre cuestiones industriales y
comerciales; 2º Presentar sus puntos de vista sobre los medios para aumentar la prosperidad de la industria y el comercio; 3º Asegurar, ateniéndose a las autorizaciones previstas en los artículos L.711-6 y L.711-8, la ejecución de los
trabajos y la prestación de los servicios necesarios para los intereses que éstas defienden.
Artículo L711-3 Se deberá solicitar la opinión de las cámaras para: 1º Los reglamentos relativos a los usos comerciales; 2º La creación, en su circunscripción, de nuevas Cámaras de Comercio e Industria, de corredores de buques, de
Tribunaux de commerce, de Cours des comptes, de establecimientos comerciales generales y salas públicas de venta en subasta y al por mayor de mercancías nuevas.
3º Las tasas destinadas a remunerar los servicios de transporte concedidos por la autoridad pública en su circunscripción;
4º Sobre cualquier asunto determinado por leyes o reglamentos especiales, en particular sobre la utilidad de ejecución de obras públicas en su circunscripción y sobre las tasas o peajes que deberá cobrar para hacer frente a los gastos que originaran estas obras;
5º Sobre las tarifas de mano de obra para el trabajo en las prisiones.
Artículo L711-4 Independientemente de los dictámenes que el Gobierno tendrá siempre derecho a solicitarles, las Cámaras de
Comercio e Industria podrán emitirlos por su propia iniciativa:
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CÓDIGO DE COMERCIO 1º Sobre los cambios proyectados en la legislación comercial, aduanera y económica; 2º Sobre los aranceles de aduana; 3º Sobre las tarifas y los pagos de los servicios de transportes concedidos por la autoridad pública fuera de su
circunscripción, pero que afecten a la suya. 4º Sobre las tarifas y reglamentos de los establecimientos de uso comercial abiertos en su circunscripción, en virtud
de autorizaciones administrativas.
Artículo L711-5 Los artículos L.121-4 a L.121-6 del Código de Urbanismo, seguidamente reproducidos, definen las competencias
de las Cámaras de Comercio e Industria para el establecimiento de los esquemas de base y la implantación de los equipamientos comerciales y artesanales:
"Art. L. 121-4.- Tras consultar a los organismos profesionales, las Cámaras de Comercio e Industria y las Cámaras de Profesionales de Artesanía se han asociado a petición propia, para el establecimiento de esquemas de base.
Los informes adjuntos de los esquemas de base fijarán, provisionalmente, la importancia y la localización de las zonas preferenciales de implantación de los diferentes equipamientos comerciales y artesanales.
"Art. L. 121-5.- Los estudios económicos necesarios para la preparación de los documentos provisionales de organización comercial y artesanal podrán ser realizados por iniciativa de las Cámaras de Comercio e Industria y de las Cámaras Profesionales de Artesanía.
"Art. L. 121-6.- Las Cámaras de Comercio e Industria y las Cámaras Profesionales de Artesanía se han asociado por petición propia para la elaboración de los planes de ocupación de suelos en lo que se refiere a la implantación de los equipamientos comerciales y artesanos. Éstas asegurarán los vínculos con las organizaciones profesionales interesadas." "
Artículo L711-6 Las Cámaras de Comercio e Industria podrán ser autorizadas a fundar y administrar establecimientos para uso
comercial, como por ejemplo los almacenes generales, salas de venta públicas, bancos de pruebas para las armas, oficinas de embalaje y etiquetado, exposiciones permanentes y museos comerciales, escuelas de comercio, escuelas profesionales, clases para la divulgación de los conocimientos comerciales e industriales.
La administración de aquellos establecimientos que hayan sido fundados por iniciativa privada podrá ser remitida a las Cámaras de Comercio e Industria según el deseo de los suscriptores o donantes.
Se podrá delegar en ellas la administración de los establecimientos del mismo tipo creados por el Estado, el departamento o el Ayuntamiento.
Las autorizaciones citadas en el presente artículo se concederán a tal efecto a las Cámaras de Comercio e Industria por decisión del Ministro encargado de su tutela administrativa, a no ser que debido a la naturaleza del establecimiento fuese necesario un decreto o una ley.
Así mismo, salvo por la misma consideración, el Ministro aprobará los pagos y tarifas máximas. El Prefecto homologará las tasas y precios efectivos a percibir a no ser que el acta de institución exija una Orden Ministerial.
Las Cámaras de Comercio e Industria podrán adquirir o construir, con la autorización ministerial, edificios para su propia instalación o la de establecimientos de uso comercial.
Artículo L711-7 Las Cámaras de Comercio e Industria y las Cámaras Profesionales de Artesanía, en unión de las organizaciones
profesionales, podrán crear fondos para asegurar la formación de comerciantes y artesanos con arreglo a la aplicación del artículo L.961-10 del Código de Trabajo.
Artículo L711-8 Las Cámaras de Comercio e Industria podrán ser declaradas concesionarias de obras públicas o encargadas de
servicios públicos.
Artículo L711-9 En el marco de operaciones de urbanismo, las Cámaras de Comercio e Industria o las Cámaras Profesionales de
Artesanía, en colaboración con la Entidad local o el organismo constructor, podrán realizar cualquier tipo de equipamiento comercial y artesanal en concepto de entidad adjudicadora, con el fin de instalar o reconvertir su actividad o su traslado.
Podrán en todo caso facilitar el acceso de los comerciantes y artesanos a la propiedad del fondo y, eventualmente, de los locales, sin aportación inicial de capital.
Para la realización de equipamientos comerciales o artesanales, se les podrá igualmente delegar el derecho de tanteo urbano y podrán ser titulares o podrá delegárseles el derecho de tanteo establecido en las zonas de ordenación urbanística diferida.
Los préstamos suscritos por las Cámaras de Comercio e Industria y las Cámaras Profesionales de Artesanía para la realización de las operaciones citadas anteriormente podrán ser avalados por las Entidades locales. Las Cámaras de Comercio e Industria, las Circunscripciones y sus asambleas permanentes podrán suscribir préstamos en la Caja de Depósitos y Consignaciones y en la Caja de Ayuda para el Equipamiento de las Entidades locales.
Artículo L711-10 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Las Cámaras de Comercio e Industria estarán agrupadas en Cámaras Regionales de Comercio e Industria. Además del derecho que conservan las Cámaras de Comercio e Industria a formar agrupaciones para la defensa de
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CÓDIGO DE COMERCIO intereses especiales y comunes a algunas de ellas, las Cámaras Regionales de Comercio e Industria representarán, ante los poderes públicos, los órganos consultivos sobre los intereses regionales del comercio y de la industria.
Las Cámaras Regionales de Comercio e Industria constituyen establecimientos públicos dotados de personalidad civil.
El reparto de las Cámaras de Comercio en Cámaras Regionales de Comercio e Industria, sus atribuciones, la organización y el funcionamiento administrativo y financiero de estas Cámaras Regionales serán definidos por decreto adoptado en Conseil d'Etat.
CAPITULO II De la administración financiera Artículos L712-1 a
L712-3
Artículo L712-1 Los gastos ordinarios de las Cámaras de Comercio e Industria se cubrirán por medio de una tasa adicional a la
tasa profesional.
Artículo L712-2 Las Cámaras de Comercio podrán asignar todo o parte de los excedentes de los ingresos, procedentes de la
gestión de su servicio ordinario, a la constitución de un fondo de reserva para hacer frente a los gastos urgentes e imprevistos. El importe de este fondo de reserva, que deberá ser mencionado en las cuentas y presupuestos de este servicio en un artículo especial, no podrá, en ningún caso, ser superior a la mitad de la totalidad de los recursos anuales de dicho presupuesto.
Artículo L712-3 Las Cámaras de Comercio e Industria citadas en el artículo L.711-1, las Cámaras Regionales de Comercio e
Industria, las agrupaciones interprofesionales, la Asamblea de Cámaras francesas de Comercio e Industria estarán obligadas a nombrar al menos a un auditor de cuentas y a un suplente elegidos de la lista mencionada en el artículo L.225-219, que ejercerán sus funciones en las condiciones previstas por las disposiciones del libro II, sin perjuicio de las normas que les sean propias.
Les serán aplicables las disposiciones del artículo L.242-27. Las penas previstas por el artículo L.242-8 serán aplicables a los dirigentes que no hubieran realizado cada año un
balance, una cuenta de resultados y un anexo explicativo. Se les aplicarán igualmente las disposiciones de los artículos L. 242-25 y L. 242-28.
CAPITULO III De la elección de los miembros de las cámaras de comercio y de industria y de los
delegados consulares Artículos L713-1 a L713-18
Artículo L713-1 (Disposición nº 2003-1067 de 12 de noviembre de 2003 Artículo 1 Diario Oficial de 13 de noviembre de 2003, con entrada en vigor el 1 de enero de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004)
I. - Los miembros de las Cámaras de Comercio e Industria serán elegidos por un período de cinco años. Un miembro de una Cámara de Comercio e Industria o de una Cámara Regional de Comercio e Industria no podrá
ejercer más de tres mandatos de presidente de esta cámara, cualquiera que sea la duración efectiva de dichos mandatos; (1)
II. - Serán electores en las elecciones de los miembros de las Cámaras de Comercio e Industria: 1º A título personal: a) Los comerciantes inscritos en el Registro de Comercio y de Sociedades en la circunscripción de la Cámara de
Comercio e Industria, sin perjuicio, para los socios de sociedades colectivas y los socios de sociedades comanditarias, de lo dispuesto en el punto III del artículo L. 713-2 ;
b) Los empresarios inscritos en el Registro Central de Artesanos e inscritos en el Registro de Comercio y de Sociedades de la circunscripción;
c) Los cónyuges de las personas enumeradas en las letras a o b anteriores que hubieran declarado en el Registro de Comercio y de Sociedades que colaboran en la actividad de sus cónyuges sin tener otra actividad profesional;
2º Por medio de un representante: a) Las sociedades mercantiles en el sentido del apartado segundo del artículo L. 210-1 del presente Código y los
establecimientos públicos de carácter industrial y comercial cuyo domicilio social esté situado en la circunscripción; b) En el caso de un establecimiento que sea objeto en la circunscripción de una inscripción complementaria o de
una matriculación secundaria, a no ser que hubieran sido dispensados de ello por las leyes y reglamentos en vigor, las personas físicas mencionadas en las letras a y b del apartado 1° y las personas físicas mencionadas en la letra a del presente apartado 2°, cualquiera que sea la circunscripción en las que esta personas ejerzan su propio derecho de voto;
c) Las sociedades de carácter mercantil cuyo domicilio social esté situado fuera del territorio nacional, que dispongan en la circunscripción de un establecimiento inscrito en el Registro de Comercio y de Sociedades.
Nota (1): Estas disposiciones se aplicarán solamente a los mandatos obtenidos a partir de las elecciones organizadas en 2004.
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CÓDIGO DE COMERCIO Artículo L713-2 (Disposición nº 2003-1067 de 12 de noviembre de 2003 Artículo 2 Diario Oficial de 13 de noviembre de 2003, con entrada en vigor el 1 de enero de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004)
I.- En razón de su domicilio social y del conjunto de sus establecimientos situados en la circunscripción de la Cámara de Comercio e Industria, las personas físicas o jurídicas mencionadas en los apartados 1º y 2º del punto II del artículo L.713-1 dispondrán:
1º De un representante suplementario, cuando empleen de diez a cuarenta y nueve trabajadores en la circunscripción de la Cámara de Comercio e Industria;
2º De dos representantes suplementarios, cuando empleen de cincuenta a ciento noventa y nueve trabajadores en la circunscripción;
3º De tres representantes suplementarios, cuando empleen de doscientos a cuatrocientos noventa y nueve trabajadores en la circunscripción;
4º De cuatro representantes suplementarios, cuando empleen de quinientos a mil novecientos noventa y nueve trabajadores en la circunscripción;
5º De cinco representantes suplementarios, cuando empleen dos mil trabajadores o más en la circunscripción. II. II.- Sin embargo, las personas físicas enumeradas en las letras a y b del apartado 1º del punto II del artículo
L.713-1 cuyo cónyuge se beneficie de las disposiciones de la letra c del apartado 1º del punto II del citado artículo no designarán ningún representante suplementario si emplean a menos de cincuenta asalariados en la circunscripción de la Cámara de Comercio e Industria.
III. - Las sociedades colectivas y las sociedades comanditarias designarán por deliberación expresa, de conformidad con las disposiciones estatutarias, a un representante único para representar a los socios y a la sociedad, sin perjuicio de la posibilidad de designar a representantes complementarios en aplicación del punto I anterior.
Artículo L713-3 (Disposición nº 2003-1067 de 12 de noviembre de 2003 Artículo 3 Diario Oficial de 13 de noviembre de 2003, con entrada en vigor el 1 de enero de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 I, Artículo 15 Diario Oficial de 17 de abril de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 Artículo 78 IV Diario Oficial de 10 de diciembre de 2004)
I. - Los representantes mencionados en los artículos L.713-1 y L.713-2 deberán ejercer en la empresa las funciones de presidente director general, de presidente o de miembro del consejo de administración, de director general, de presidente o de miembro del directorio, de presidente del consejo de supervisión, de gerente, de presidente o de miembro del consejo de administración o de director de un establecimiento público de carácter industrial y comercial, o bien, en su defecto y para representarlos en concepto de mandatario, funciones que impliquen responsabilidades de dirección comercial, técnica o administrativa de la empresa o del establecimiento.
II. - Los electores a título personal mencionados en el apartado 1° del punto II del artículo L. 713-1 y los representantes de las personas físicas o jurídicas mencionadas en el apartado 2° del punto II del mismo artículo deberán ser nacionales de un Estado miembro de la Comunidad Europea o de un Estado parte en el Acuerdo sobre el Espacio Económico Europeo.
Para tomar parte en la votación, deberán: 1º Reunir los requisitos establecidos en el artículo L. 2 del Código Electoral, con excepción de la nacionalidad; 2º No haber sido objeto de la inhabilitación prevista en el artículo L. 6 del Código Electoral; 2º bis No haber sido afectado por la quiebra personal o por una de las medidas de inhabilitación o de caducidad
previstas en el capítulo V del título II del libro VI del presente Código, en el título VI de la Ley nº 85-98 de 25 de enero 1985 relativa al procedimiento de suspensión de pagos y la liquidación judicial de las empresas o, en el régimen anterior de esta Ley, en el título II de la Ley nº 67-563 de 13 de julio 1967 sobre la suspensión de pagos, la liquidación de bienes, la quiebra personal y las bancarrotas, de una medida de prohibición definida en el artículo L. 625-8 del presente Código o de una medida de prohibición de ejercer una actividad comercial;
3º No haber sido condenado a penas, inhabilitaciones o sanciones dictadas en aplicación de legislaciones en vigor en los Estados miembros de la Comunidad Europea o en los Estados partes en el acuerdo sobre el Espacio Económico Europeo y que sean equivalentes a las mencionadas en los apartados 2° y 2° bis.
Artículo L713-4 (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 I, II Diario Oficial de 17 de abril de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 Artículo 78 IV Diario Oficial de 10 de diciembre de 2004)
I. - Podrán ser candidatos a las funciones de miembro de una Cámara de Comercio e Industria, las personas mayores de dieciocho años que cumplan las condiciones determinadas en el punto II del artículo 713-3:
1º Los electores a título personal mencionados en el apartado 1° del punto II del artículo L. 713-1 inscritos en la lista electoral de la circunscripción correspondiente y que prueben que están inscritos desde hace dos años como mínimo en el Registro de Comercio y de Sociedades;
2º Los electores inscritos en calidad de representantes, mencionados en el apartado 2º del punto II del artículo L. 713-1 y en el artículo L. 713-2, inscritos en la lista electoral de la circunscripción y que prueben que la empresa que representan ejerce su actividad desde hace dos años como mínimo.
II. - El miembro de una Cámara de Comercio e Industria que deje de cumplir las condiciones de elegibilidad determinadas en el punto I anterior presentará su dimisión al Prefecto. En su defecto, el Prefecto lo declarará
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CÓDIGO DE COMERCIO dimisionario de oficio.
No obstante, un cese de actividad inferior a seis meses no conllevará la dimisión, salvo en los casos mencionados en los apartados 2º, 2º bis y 3º del punto II del artículo L. 713-3.
Artículo L713-5 (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 I, II Diario Oficial de 17 de abril de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 Artículo 78 IV Diario Oficial de 10 de diciembre de 2004)
I. - En caso de disolución de una Cámara de Comercio e Industria, se procederá a su renovación en un plazo de seis meses.
No obstante, si esta disolución fuera dictada menos de un año antes de una renovación general, no se procederá a la renovación.
II. - Cuando el número de miembros de una Cámara de Comercio e Industria se reduzca a menos de la mitad del número inicial, el prefecto constará esta situación mediante una orden y organizará nuevas elecciones para cubrir la totalidad de los puestos dentro de un plazo de seis meses.
No obstante, si esta situación fuera constatada menos de un año antes de una renovación general, no se procederá a la renovación.
III. - Los miembros elegidos en aplicación del presente artículo seguirán en funciones durante el periodo restante del mandato del titular inicial.
Artículo L713-6 (Disposición nº 2003-1067 de 12 de noviembre de 2003 Artículo 4 Diario Oficial de 13 de noviembre de 2003, con entrada en vigor el 1 de enero de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, III Diario Oficial de 17 de abril de 2004)
Los delegados de las Cámaras de Comercio e Industria serán elegidos por cinco años en la circunscripción de cada Cámara de Comercio e Industria.
No obstante, ningún delegado de una cámara profesional podrá ser elegido en una circunscripción o parte de una circunscripción que esté bajo la jurisdicción de un tribunal competente en materia comercial que no tenga en su seno ningún juez elegido.
Artículo L713-7 (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, III Diario Oficial de 17 de abril de 2004)
Serán electores en las elecciones de los delegados de las Cámaras de Comercio e Industria: 1º A título personal: a) Los comerciantes inscritos en el Registro de Comercio y de Sociedades en la circunscripción de la Cámara de
Comercio e Industria, sin perjuicio, para los socios de sociedades colectivas y los socios de sociedades comanditarias, de lo dispuesto en el punto III del artículo L. 713-2 ;
b) Los empresarios inscritos en el Registro Central de Artesanos e inscritos en el Registro de Comercio y de Sociedades de la circunscripción;
c) Los cónyuges de las personas enumeradas en las letras a o b anteriores que hubieran declarado en el Registro de Comercio y de Sociedades que colaboran en la actividad de sus cónyuges sin tener otra actividad profesional;
d) Los capitanes de navegación de altura o capitanes de la marina mercante que ejerzan el mando de un buque matriculado en Francia cuyo puerto de amarre esté situado en la circunscripción, los pilotos marítimos que ejerzan sus funciones en un puerto situado en la circunscripción, los pilotos de aviación civil domiciliados en la circunscripción y que ejerzan el mando de una aeronave matriculada en Francia;
e) Los miembros en ejercicio de los tribunaux de commerce, así como las antiguos miembros de dichos tribunales que hayan solicitado su inscripción en la lista electoral;
2º Por medio de un representante: a) Las sociedades de carácter mercantil en el sentido del artículo L. 210-1 y los establecimientos públicos de
carácter industrial y comercial cuyo domicilio social esté situado en la circunscripción; b) En el caso de un establecimiento que sea objeto en la circunscripción de una inscripción complementaria o de
una matriculación secundaria, a no ser que hubieran sido dispensados de ello por las leyes y reglamentos en vigor, las personas físicas mencionadas en las letras a y b del apartado 1° y las personas físicas mencionadas en la letra a del presente apartado 2°, cualquiera que sea la circunscripción en las que esta personas ejerzan su propio derecho de voto;
c) Las sociedades de carácter mercantil cuyo domicilio social esté situado fuera del territorio nacional, que dispongan en la circunscripción de un establecimiento inscrito en el Registro de Comercio y de Sociedades;
3º Los directivos empleados en la circunscripción por los electores mencionados en los apartados 1° y 2°, que desempeñan funciones que impliquen responsabilidades de dirección comercial, técnica o administrativa de la empresa o del establecimiento.
Artículo L713-8 (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, III Diario Oficial de 17 de abril de 2004)
- Los representantes mencionados en el apartado 2° del artículo L.713-7 deberán ejercer en la empresa las
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CÓDIGO DE COMERCIO funciones de presidente director general, de presidente o de miembro del consejo de administración, de director general, de presidente o de miembro del directorio, de presidente del consejo de supervisión, de gerente, de presidente o de miembro del consejo de administración o de director de un establecimiento público de carácter industrial y comercial, o bien, en su defecto y para representarlos en concepto de mandatario, funciones que impliquen responsabilidades de dirección comercial, técnica o administrativa de la empresa o del establecimiento.
Artículo L713-9 (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, III, Artículo 4 Diario Oficial de 17 de abril de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 Artículo 78 XIX Diario Oficial de 10 de diciembre de 2004)
Los electores a título personal y los directivos mencionados en los apartados 1° y 3° del artículo L. 713-7 y los representantes de las personas físicas o jurídicas mencionadas en el apartado 2° del punto II del mismo artículo deberán ser nacionales de un Estado miembro de la Comunidad Europea o de un Estado parte en acuerdo sobre el Espacio Económico Europeo.
Deberán asimismo: 1º Reunir los requisitos establecidos en el artículo L. 2 del Código Electoral, sin perjuicio de lo dispuesto en primer
párrafo del presente artículo; 2º No haber sido el autor de hechos que hayan dado lugar a una condena penal por hechos contrarios al honor, a
la moral y a las buenas costumbres; 2º bis No haber sido afectado por la quiebra personal o por una de las medidas de inhabilitación o de caducidad
previstas en el capítulo V del título II del libro VI del presente Código, en el título VI de la Ley nº 85-98 de 25 de enero 1985 relativa al procedimiento de suspensión de pagos y la liquidación judicial de las empresas o, en el régimen anterior de esta Ley, en el título II de la Ley nº 67-563 de 13 de julio 1967 sobre la suspensión de pagos, la liquidación de bienes, la quiebra personal y las bancarrotas, de una medida de prohibición definida en el artículo L. 625-8 del presente Código o de una medida de prohibición de ejercer una actividad comercial;
3º No haber sido condenado a penas, inhabilitaciones o sanciones dictadas en aplicación de legislaciones en vigor en los Estados miembros de la Comunidad Europea o en los Estados partes en el acuerdo sobre el Espacio Económico Europeo y que sean equivalentes a las mencionadas en los apartados 2° y 2° bis.
Artículo L713-10 (Disposición nº 2003-1067 de 12 de noviembre de 2003 Artículo 5 Diario Oficial de 13 de noviembre de 2003, con entrada en vigor el 1 de enero de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, III, Artículo 5 Diario Oficial de 17 de abril de 2004)
Podrán ser candidatos a las funciones de delegado de la Cámara de Comercio e Industria las personas que pertenezcan al colegio electoral tal y como se define en el artículo L.713-7.
Artículo L713-11 (Disposición nº 2003-1067 de 12 de noviembre de 2003 Artículo 6 Diario Oficial de 13 de noviembre de 2003, con entrada en vigor el 1 de enero de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, IV Diario Oficial de 17 de abril de 2004)
Los electores de los delegados de las Cámaras de Comercio e Industria y de los miembros de las Cámaras de Comercio e Industria serán repartidos en cada circunscripción administrativa en tres categorías profesionales correspondientes respectivamente a las actividades comerciales, industriales o de servicios.
En el seno de estas tres categorías, los electores podrán eventualmente ser repartidos en subcategorías profesionales definidas en función de la envergadura de la empresa o bien de sus actividades específicas.
Artículo L713-12 (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, IV Diario Oficial de 17 de abril de 2004)
El número de puestos de delegados de las Cámaras de Comercio e Industria, que no podrá ser inferior a sesenta ni superior a seiscientos, será determinado teniendo en cuenta la importancia del cuerpo electoral de las cámaras profesionales de la circunscripción, del número de miembros elegidos por la Cámara de Comercio e Industria y del número de Tribunaux de commerce incluidos en la circunscripción de esta Cámara.
El número de puestos de una Cámara de Comercio e Industria será de veinticuatro a cincuenta para las Cámaras de Comercio e Industria cuya circunscripción cuente con menos de 30.000 electores, de treinta y ocho a setenta para aquéllas cuya circunscripción cuente entre 30.000 y 100.000 y de sesenta y cuatro a cien para aquéllas cuya circunscripción cuente con más de 100.000 electores.
Artículo L713-13 (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, IV Diario Oficial de 17 de abril de 2004)
La distribución de los puestos por categorías y subcategorías profesionales será realizada teniendo en cuenta las bases imponibles de los profesionales pertenecientes a su circunscripción, el número de éstos y el número de trabajadores que empleen.
Ninguna de las categorías profesionales podrá disponer de una representación superior a la mitad del número de
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CÓDIGO DE COMERCIO puestos.
Artículo L713-14 (Disposición nº 2003-1067 de 12 de noviembre de 2003 Artículo 7 Diario Oficial de 13 de noviembre de 2003, con entrada en vigor el 1 de enero de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, IV Diario Oficial de 17 de abril de 2004)
Las listas electorales se establecerán en la circunscripción del Tribunal de commerce por una comisión presidida por el juez adscrito a la supervisión del Registro de Comercio y de Sociedades y estarán sujetas a las prescripciones del párrafo primero del artículo L.25 y de los artículos L.27, L.34 y L.35 del Código Electoral.
Artículo L713-15 (Disposición nº 2003-1067 de 12 de noviembre de 2003 Artículo 8 Diario Oficial de 13 de noviembre de 2003, con entrada en vigor el 1 de enero de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 Diario Oficial de 17 de abril de 2004) (Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, IV, Artículo 6 Diario Oficial de 17 de abril de 2004)
Para la elección de los miembros de las Cámaras de Comercio e Industria, cada elector dispondrá de tantos votos como condiciones para ser elector en aplicación del artículo L.713-1.
Para la elección de los delegados de las Cámaras de Comercio e Industria, cada elector dispondrá de un solo voto. El derecho de voto en las elecciones de los miembros de Cámaras de Comercio e Industria y de los delegados de
las Cámaras de Comercio e Industria podrá ser ejercido por correspondencia o por vía electrónica. En caso de que un mismo elector utilice, en una misma calidad, dos vías de votación, solamente la vía electrónica será considerada válida.
Artículo L713-16 (introducido por la Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, IV, Artículo 6-1 Diario Oficial de 17 de abril de 2004)
Los delegados de las Cámaras de Comercio e Industria y los miembros de las Cámaras de Comercio e Industria serán elegidos por votación mayoritaria plurinominal a una sola vuelta. Si varios candidatos obtuvieran el mismo número de votos, se proclamará elegido el de mayor edad.
NOTA: El artículo 6-1 de la disposición 2004-328 está introducido por el artículo 78 XIX de la Ley 2004-1343 de 9 de diciembre de 2004 DORF de 10 de diciembre de 2004.
Artículo L713-17 (introducido por la Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, IV, Artículo 7 Diario Oficial de 17 de abril de 2004)
Las operaciones relativas a la elección de los delegados de las Cámaras de Comercio e Industria y a la elección de los miembros de las Cámaras de Comercio e Industria serán organizadas en la misma fecha, por la autoridad administrativa y, bajo control de ésta, por las Cámaras de Comercio e Industria. Dichas operaciones estarán sujetas a lo dispuesto en los artículos L. 49, L. 50, L. 58 a L. 67 del Código Electoral. El que incumpliera estas disposiciones será castigado con las penas previstas en los artículos L. 86 a L. 117 del mismo Código.
Una comisión presidida por el Prefecto o su representante se encargará de velar por la regularidad de la votación y de la proclamación de los resultados.
Los recursos contra las elecciones de delegados de las Cámaras de Comercio e Industria y miembros de las Cámaras de Comercio e Industria se someterán al Tribunal Administrativo como en las elecciones municipales.
Artículo L713-18 (introducido por la Disposición nº 2004-328 de 15 de abril de 2004 Artículo 2 II, IV Diario Oficial de 17 de abril de 2004)
Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación de los artículos L.713-1 al 713-14. Este decreto determinará en particular las condiciones en las que se repartirán los puestos de delegados de cámaras profesionales y de miembros de una Cámara de Comercio e Industria entre las diferentes categorías profesionales.
TITULO II DEL EQUIPAMIENTO COMERCIAL Artículos L720-1 a
L720-11
Artículo L720-1 (Ley nº 2004-804 de 9 de agosto de 2004 Artículo 18 I Diario Oficial de 11 de agosto de 2004)
Las implantaciones, ampliaciones, traslados de actividades existentes y cambios de sector de actividad de empresas comerciales y artesanales deberán responder a las exigencias de ordenación territorial, de protección medioambiental y de calidad del urbanismo. Deberán contribuir en particular al mantenimiento de las actividades en las zonas rurales y de montaña, así como al reequilibrio de las aglomeraciones por medio del desarrollo de actividades en el centro de las ciudades y en las zonas de dinamización urbana.
Deberán igualmente contribuir a la modernización de los equipamientos comerciales, a su adaptación a la evolución de las modas de consumo y de las técnicas de comercialización, a la comodidad del consumidor en sus compras y a la mejora de las condiciones laborales de los trabajadores.
El programa nacional de desarrollo y de modernización de las actividades comerciales y artesanales mencionado en el Artículo 1 de la Ley N° 73-1193 de 27 de diciembre de 1973 de orientación del comercio y de la artesanía
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CÓDIGO DE COMERCIO establecerá las orientaciones del equipamiento comercial para la consecución de los objetivos definidos en el presente artículo.
Artículo L720-2 Los poderes públicos facilitarán la reagrupación de empresas comerciales y artesanales y la creación de servicios
comunes que permitan mejorar su productividad y su competitividad y eventualmente beneficiar a su clientela con servicios complementarios.
Artículo L720-3 (Ley nº 2000-1208 de 13 de diciembre de 2000 Artículo 97 Diario Oficial de 14 de diciembre de 2000) (Ley nº 2004-804 de 9 de agosto de 2004 Artículo 18 II Diario Oficial de 11 de agosto de 2004)
I.- La comisión departamental de equipamiento comercial decidirá sobre las solicitudes de autorización que le sean presentadas en virtud de las disposiciones de los artículos L.720-5 y L.720-6.
II. II.- En el marco de los principios definidos en los artículos L.720-1 y L.720-2, la comisión decidirá teniendo en cuenta:
1º La oferta y la demanda globales para cada sector de actividad en el área de mercado en cuestión; - El impacto global del proyecto sobre los flujos de coches particulares y de vehículos de reparto; - La calidad del servicio de transporte público u otros medios de transporte alternativos; - Las capacidades de admisión de carga y descarga de mercancías; 2º La densidad de equipamiento en medianas y grandes superficies de esa zona; 3º El efecto potencial del proyecto sobre el sistema comercial y artesanal de la zona y de las aglomeraciones
urbanas afectadas, y sobre el equilibrio deseable entre las diferentes formas de comercio. Cuando el proyecto sea relativo a la creación o la extensión de un conjunto comercial, mayoritariamente compuesto de tiendas especializadas en la comercialización de artículos de marca a precio reducido, la repercusión potencial de dicho proyecto se apreciará independientemente de la especificidad de la política comercial de este tipo de tiendas;
4º El impacto eventual del proyecto en términos de empleos directos e indirectos; 5º Las condiciones de ejercicio de la libre competencia en el seno del sector del comercio y de la artesanía; 6º Los compromisos de los que demandan la creación de establecimientos minoristas predominantemente de
alimentación de creación de establecimientos del mismo tipo en las zonas de dinamización urbana o los territorios rurales de desarrollo prioritario, con una superficie de venta inferior a 300 metros cuadrados, para al menos un 10% de las superficies solicitadas.
III. - Las decisiones de la comisión departamental serán fruto de la labor realizada por el observatorio departamental de equipamiento comercial.
IV. - El observatorio departamental de equipamiento comercial recopilará los datos necesarios para la elaboración de los planes de desarrollo comercial respetando las orientaciones definidas en el artículo L.720-1. Tendrá en cuenta, si procede, las orientaciones de las normas urbanísticas mencionadas en el artículo L.111-1-1 del Código de Urbanismo y los esquemas regionales de ordenación urbanística y de desarrollo del territorio previstos en el artículo 34 de la Ley nº 83-8 de 7 de enero de 1983 relativa al reparto de competencias entre los Ayuntamientos, los departamentos, las Regiones y el Estado.
V.- El plan de desarrollo comercial será elaborado y hecho público en las condiciones establecidas por un decreto adoptado en Conseil d'Etat.
VI.- Además, cuando la operación prevista afectara a una aglomeración en la que se hayan implantado los procedimientos previstos en los artículos L.303.1 del Código de la Construcción y de la Vivienda y el L. 123-11 del Código de Urbanismo, la comisión tendrá en cuenta las acciones destinadas a asegurar la permanencia o la implantación de comercios de proximidad, de artesanos o actividades artesanales.
VII. - Los proyectos sólo se someterán al examen de la comisión si van acompañados de la indicación de la firma comercial del o de los futuros explotadores de los establecimientos cuya superficie sea igual o superior a un umbral fijado por decreto.
VIII. - Las solicitudes referidas a la creación de un establecimiento de comercio minorista o de un complejo comercial tal y como se define en el artículo L.720-6 de una superficie de venta superior a 6.000 metros cuadrados irán acompañadas de las conclusiones de una consulta pública en relación con los aspectos económicos, sociales y de ordenación urbanística del proyecto, prescrita en las condiciones determinadas por un decreto adoptado en Conseil d'Etat. Esta consulta se realizará conjuntamente con la consulta pública prevista en aplicación del artículo 1º de la Ley nº 83-630 de 12 de julio de 1983 relativa a la democratización de las consultas públicas y a la protección del medio ambiente cuando ésta se impone en el marco de la tramitación de la licencia de obra.
Artículo L720-4 (Ley nº 2003-660 de 21 de julio de 2003 Artículo 56 Diario Oficial de 22 de julio de 2003)
En los departamentos de Ultramar, salvo la excepción justificada por parte de la comisión departamental de equipamiento comercial, la autorización solicitada no podrá ser otorgada cuando se considere que tendría como consecuencia sobrepasar el umbral del 25% en el conjunto del departamento, o aumentar la superficie de venta total de los comercios minoristas predominantemente de alimentación con más de 300 metros cuadrados de superficie de venta, si ésta ya fuera superior a este umbral, tanto si ésta afectara al conjunto del proyecto o sólo a una parte, y cuando dicha superficie pertenezca:
1ºA una misma marca; 2° O a una misma sociedad o una de sus filiales, o una sociedad en la que esta sociedad posea una fracción del
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CÓDIGO DE COMERCIO capital comprendida entre un 10% y un 50%, o una sociedad controlada por esta misma sociedad en el sentido del artículo L.233-3;
3°O controlada directa o indirectamente por un socio por lo menos que ejerza sobre ella una influencia en el sentido del artículo L.233-16, o que tenga un dirigente común de hecho o de derecho.
Artículo L.720-5 (Ley nº 2005-157 de 23 de febrero de 2005 art. 40, art. 49 Diario Oficial de 24 de febrero de 2005) (Ley nº 2006-10 de 5 de enero de 2006 art. 37 Diario Oficial de 6 de enero de 2006)
I.- Estarán sujetos a una autorización de explotación comercial los proyectos que tengan por objeto: 1º La creación de un establecimiento comercial minorista de una superficie de venta superior a 300 metros
cuadrados, instalado en una nueva construcción, o bien en un inmueble ya existente reformado; 2º La ampliación de la superficie de venta de un establecimiento comercial minorista que hubiera alcanzado el
umbral de los 300 metros cuadrados o que lo fuera a sobrepasar al realizar el proyecto. Será considerada como ampliación la utilización suplementaria de cualquier espacio, cubierto o no, fijo o móvil, que no entrara en el ámbito de aplicación del artículo L.310-2;
3º La creación o la ampliación de un complejo comercial tal como ha sido definido en el artículo L.720-6 de una superficie de venta total superior a 300 metros cuadrados o que fuera a sobrepasar este umbral al realizar el proyecto;
4º La creación o la ampliación de cualquier instalación de distribución minorista de combustibles y de carburantes, sea cual fuere su superficie de venta, anexa a un establecimiento comercial minorista de los mencionados en el apartado 1º anterior o a un complejo comercial de los mencionados en el apartado 3º anterior y situado fuera del dominio público de autopistas o vías rápidas;
Las disposiciones relativas a las instalaciones de distribución de combustibles serán establecidas por decreto; 5º La reutilización para uso comercial minorista de una superficie de venta superior a 300 metros cuadrados
liberada como consecuencia de una autorización para la creación de un establecimiento comercial mediante traslado de las actividades existentes, sea cual fuere la fecha en que hubiera sido autorizado ese traslado;
6º La reapertura al público, en el mismo lugar, de un establecimiento comercial minorista de una superficie de venta superior a 300 metros cuadrados cuyos locales hubieran dejado de ser explotados durante dos años, teniendo en cuenta que en el caso de un procedimiento de saneamiento judicial del empresario que lo explotara, este plazo sólo empieza a contar a partir del día en que el propietario haya recuperado la plena y entera disposición de los locales;
7º Las construcciones nuevas, las ampliaciones o las reformas de inmuebles existentes orientadas a la creación de establecimientos hoteleros de una capacidad superior a treinta habitaciones fuera de la región de Ile-de-France, y de cincuenta habitaciones en esta última.
Cuando se trate de decidir sobre estas solicitudes, la comisión departamental de infraestructuras comerciales tendrá en cuenta el dictamen previo de la comisión departamental de acción turística, presentado por el delegado regional de turismo que asista a la sesión. Además de los criterios contemplados en el artículo L.720-3, la comisión resolverá considerando la densidad de establecimientos hoteleros de la zona en cuestión.
8º Cualquier cambio de sector de actividad de un comercio de una superficie de venta superior a 2.000 metros cuadrados estará igualmente supeditado a la autorización de explotación comercial prevista en el presente artículo. Este umbral será rebajado a 300 metros cuadrados cuando la nueva actividad del establecimiento sea predominantemente del sector de la alimentación.
En el caso de los viveristas y los horticultores, la superficie de venta mencionada en el apartado 1° será la que estos dediquen a la venta al por menor de productos no procedentes de su explotación, con arreglo a las condiciones establecidas por decreto.
II. - Las reagrupaciones de superficies de venta de establecimientos vecinos, sin creación de superficies suplementarias, que no excedan de 1.000 metros cuadrados, o 300 metros cuadrados cuando la nueva actividad sea predominantemente del sector de la alimentación, no estarán obligadas a solicitar una autorización de explotación comercial.
III. - Las farmacias no estarán obligadas a la obtención de una autorización de explotación comercial, ni serán tenidas en cuenta para la aplicación del apartado 3º del punto I anterior.
IV. - Tampoco necesitarán una autorización de explotación especial las plazas de abastos y mercados de abastecimiento de minoristas, cubiertos o no, establecidos en terreno público y cuya creación fuera decidida por el Consejo Municipal, los establecimientos accesibles únicamente a los viajeros provistos de billetes, situados en las instalaciones de los aeropuertos, así como las partes del dominio público ferroviario de una superficie máxima de 1.000 metros cuadrados.
V.- La creación o la ampliación de garajes o comercios de vehículos automóviles que dispongan de taller de mantenimiento y reparación no estará obligada a solicitar una autorización de explotación comercial, cuando no esté previsto superar la superficie total de 1.000 metros cuadrados.
VI.- La autorización de explotación comercial deberá ser expedida previamente a la concesión de la licencia de obra, si procede, o antes de la realización del proyecto si no fuera necesaria la licencia de obra.
La autorización se concederá por metro cuadrado de superficie de venta o por habitación. Será necesaria una nueva solicitud cuando el proyecto, durante su tramitación o su realización, sufra
modificaciones sustanciales en la naturaleza del comercio o de las superficies de venta. Lo mismo ocurrirá en caso de modificación de la o de las marcas designadas por el solicitante.
La autorización previa requerida para la creación de establecimientos comerciales minoristas no será transmisible ni transferible.
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CÓDIGO DE COMERCIO VII.- Lo dispuesto en el apartado 7º del punto II no será de aplicación a los Departamentos de Ultramar.
Artículo L720-6 I.- Se considerará que forman parte de un mismo complejo comercial los establecimientos reunidos en un mismo
emplazamiento, estén o no situados en edificios diferentes y sean una o varias personas los propietarios o titulares de la explotación y que:
1º Hayan sido concebidos en el marco de una misma operación de ordenación urbanística realizada en una o varias etapas;
2º O se beneficien de planificaciones concebidas para permitir el acceso a los diferentes establecimientos a una misma clientela;
3º O realicen una gestión común de algunos elementos de su explotación, sobre todo la creación de servicios colectivos o la utilización habitual de publicidad y de prácticas comerciales comunes;
4º O estén reunidos bajo una estructura jurídica común, controlada directa o indirectamente por al menos un socio, que ejerza sobre ella una influencia en el sentido del artículo L.233-16 o que tengan un dirigente común, de hecho o de derecho.
II. - Sin embargo, las disposiciones del presente artículo no serán aplicables a las zonas de ordenación urbanística concertada, creadas en un centro urbano en virtud del artículo L.311-1 del Código de Urbanismo.
Artículo L720-7 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002)
No obstante las disposiciones particulares aplicables a las Entidades locales y a las sociedades de economía mixta locales, todos los contratos realizados por personas públicas o privadas, para la realización de un proyecto autorizado en virtud de los artículos L.720-5 y L.720-6, serán comunicados por cada parte contratante al Prefecto y a la Cámara Regional de Cuentas, según las condiciones determinadas por decreto.
Esta obligación se extenderá igualmente a los contratos anteriores a la autorización y que se refieran al acondicionamiento y urbanización de los terrenos en los que se ha realizado la implantación de los establecimientos que se hubieran beneficiado de la autorización. Afectará a todo tipo de contratos, incluidos los que prevean cesiones gratuitas, prestaciones en especie y contrapartidas no materiales.
Esta comunicación se producirá en los dos meses siguientes a la conclusión de los contratos o, si se trata de contratos anteriores a la autorización, en un plazo de dos meses contados a partir de la autorización.
Toda infracción a lo dispuesto en el presente artículo será sancionada con multa de 15.000 euros.
Artículo L720-8 I.- El Prefecto presidirá la comisión departamental de equipamiento comercial y sin tomar parte en la votación,
informará a la comisión sobre el contenido del programa nacional previsto en el artículo L.720-1 y sobre el plan de desarrollo comercial mencionado en el artículo L.720-3.
II. - En los departamentos, excluido París, ésta estará compuesta: 1º De los tres representantes políticos siguientes: a) El alcalde del ayuntamiento de implantación; b) El presidente de la entidad pública de cooperación mancomunal competente en materia de acondicionamiento
del espacio y de desarrollo, de la que forme parte el ayuntamiento de implantación o, en su defecto, el Consejero General del Cantón de implantación;
c) El alcalde del ayuntamiento más poblado de la circunscripción, aparte del ayuntamiento de implantación; excluidos los departamentos de Hauts-de-Seine, de Seine-Saint-Denis, de Val-de-Marne y de los ayuntamientos de Essonne, de Val-d'Oise, de Yvelines y de Seine-et-Marne que pertenecen al núcleo parisino, en el caso de que el ayuntamiento de implantación pertenezca a una mancomunidad que incluya al menos cinco ayuntamientos, el alcalde del ayuntamiento más poblado será escogido entre los alcaldes de los ayuntamientos de dicha mancomunidad;
2º De las tres personalidades siguientes: a) El presidente de la cámara de comercio y de industria cuya circunscripción territorial incluya al ayuntamiento de
implantación, o su representante; b) El presidente de la Cámara Profesional de Artesanía cuya circunscripción territorial incluya al ayuntamiento de
implantación, o su representante; c) Un representante de las asociaciones de consumidores del departamento. Cuando el alcalde del ayuntamiento de implantación o el alcalde del ayuntamiento más poblado citado
anteriormente fuera también Consejero General del Cantón, el Prefecto nombrará para sustituir a este último, a un alcalde de un ayuntamiento situado en la mancomunidad o en la circunscripción afectadas.
III. - En París se compondrá: 1º De los tres representantes políticos siguientes: a) El alcalde de París; b) El alcalde de la circunscripción del lugar de implantación; c) Un consejero de la circunscripción designado por el consejo de París; 2º De las tres personalidades siguientes: a) El presidente de la Cámara de Comercio e Industria de París o su representante; b) El Presidente de la Cámara Profesional de Artesanía de París o su representante; c) Un representante de las asociaciones de consumidores del departamento.
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CÓDIGO DE COMERCIO IV. - Cualquier miembro de la comisión departamental de equipamiento comercial deberá informar al Prefecto de
los intereses que posea y de la función que ejerza en una actividad económica. Ningún miembro de la comisión podrá deliberar en un asunto en que posea un interés personal y directo o si
representa o ha representado a una de las partes interesadas. V.- Asistirán a las sesiones los responsables de los servicios descentralizados del Estado encargados del
equipamiento, de la competencia y del consumo así como del empleo. VI.- En la región de Ile-de-France, asistirá también a las sesiones un representante del Prefecto de región. La tramitación de las solicitudes de autorización será realizada por los servicios descentralizados del Estado. VII. - Las solicitudes de autorización serán presentadas en las condiciones determinadas por decreto adoptado en
Conseil d'Etat ; las solicitudes no destinadas a superficies de venta superiores a los 1.000 metros cuadrados se beneficiarán de un procedimiento simplificado.
VIII. - Las condiciones de designación de los miembros de la comisión y las modalidades de su funcionamiento serán determinadas por decreto adoptado en Conseil d'Etat.
Artículo L720-9 La comisión departamental de equipamiento comercial, siguiendo un procedimiento establecido por decreto,
autorizará los proyectos por una votación favorable de cuatro de sus miembros. El acta indicará el sentido del voto emitido por cada uno de los miembros.
Artículo L720-10 La comisión departamental de equipamiento comercial deberá decidir sobre las solicitudes de autorización citadas
en el artículo L.720-5 en un plazo de cuatro meses, contados desde el momento de la presentación de cada solicitud, y sus decisiones deberán ser motivadas sobre todo en razón a las disposiciones de los artículos L.720-1 y L.720-3. Pasado este plazo, se considerará que la autorización ha sido concedida. Los miembros de la comisión tendrán conocimiento de las solicitudes presentadas al menos un mes antes de tener que tomar la decisión.
Por iniciativa del Prefecto, de los dos miembros de la comisión, de los que uno será una autoridad, o del solicitante, la decisión de la comisión departamental podrá ser objeto de un recurso ante la comisión nacional de equipamiento comercial prevista en el artículo L.720-11, en un plazo de dos meses contados a partir de su notificación o de su intervención implícita y se resolverá en un plazo de cuatro meses.
Las comisiones autorizarán o denegarán los proyectos en su totalidad. Antes de la expiración del plazo de recurso o, en caso de recurso, antes de la resolución en apelación de la
comisión nacional, no podrá concederse la licencia de obra ni iniciarse su realización y no podrán ser presentadas nuevas solicitudes para el mismo terreno de asentamiento ante la comisión departamental de equipamiento comercial.
En caso de denegación por un motivo de fondo de la solicitud de autorización por la comisión nacional antes mencionada, el mismo solicitante no podrá presentar nueva solicitud para un mismo proyecto, en el mismo terreno, durante un período de un año contado a partir de la fecha de la resolución de la comisión nacional.
Artículo L720-11 I.- La comisión nacional de equipamiento comercial constará de ocho miembros nombrados, por un período de seis
años no renovables, por decreto adoptado tras el informe del Ministro de Comercio. La comisión será renovada en su mitad cada tres años.
II. - Se compondrá de: 1º Un miembro del Conseil d'Etat nombrado por el vicepresidente del Conseil d'Etat, como presidente; 2º Un miembro de la Cour des comptes nombrado por el primer presidente de la Cour des comptes; 3º Un miembro de la Inspección General de Hacienda nombrado por el jefe de dicho servicio; 4º Un miembro del cuerpo de inspectores generales del equipamiento nombrado por el vicepresidente del Consejo
General de Caminos y Puentes; 5º Cuatro personalidades designadas por su competencia en materia de distribución, de consumo, de ordenación
del territorio o de empleo, en razón de una por el presidente de la Asamblea Nacional, una por el presidente del Senado, una por el Ministro de Comercio y una por el Ministro competente en materia de empleo.
II. - El presidente de la comisión dispondrá de voto determinante en caso de empate de votos. III. - Todo miembro de la Comisión deberá informar al presidente de los intereses que posea o de la función que
ejerza en una actividad económica. IV. - Ningún miembro de la comisión podrá deliberar en un asunto en que posea un interés personal y directo o si
representa o ha representado a una de las partes interesadas. V.- El alcalde del ayuntamiento de implantación miembro de la comisión departamental cuya decisión fuera objeto
de un recurso será escuchado por la Comisión Nacional a petición propia. VI.- El Comisario del Gobierno designado por el Ministro de Comercio asistirá a las sesiones de la Comisión. Será
el encargado de informar sobre los expedientes. VII. - Las condiciones de nombramiento de los miembros de la comisión y del presidente de ésta, así como sus
normas de funcionamiento se determinarán por decreto adoptado en Conseil d'Etat.
TITULO III DE LOS MERCADOS CENTRALES DE ABASTECIMIENTO Artículos L730-1 a
L730-16
Artículo L730-1
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CÓDIGO DE COMERCIO (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 34 Diario Oficial de 27 de marzo de 2004)
Los "Mercados de Interés Nacional" son servicios públicos de gestión de mercados, cuyo acceso está reservado a los productores y comerciantes, que participan en la organización y productividad de los circuitos de distribución de productos agrícolas y alimentarios, en la promoción de la competencia en estos sectores económicos y en la seguridad alimentaria de la población.
La clasificación de los mercados de productos agrícolas y alimentarios dentro de los "Mercados de Interés Nacional" o la creación de dichos mercados se acordará por decreto, previa propuesta de los Consejos Regionales.
Estos mercados podrán establecerse en el dominio público o en el dominio privado de una o varias personas jurídicas de derecho público o en inmuebles pertenecientes a personas privadas.
La desclasificación de la condición de Mercado de Interés Nacional podrá ser acordada por orden del Ministro de Comercio y del Ministro de Agricultura, previa propuesta del Consejo Regional si la actividad del mercado ya no permitiera responder a las misiones definidas en el primer párrafo o en la organización general determinada en las condiciones establecidas en el artículo L. 730-15.
Artículo L730-2 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 35 Diario Oficial de 27 de marzo de 2004)
La lista de "Mercados de Interés Nacional" que el Estado prevé planificar y gestionar serán establecida por decreto.
Para los demás "Mercados de Interés Nacional", los municipios de los territorios donde éstos estén implantados, o las agrupaciones de municipios interesadas, se encargarán de su planificación y gestión, en régimen de gestión administrativa, o a través de la designación de una persona jurídica pública o privada. En este último caso, esta persona jurídica será designada tras una convocatoria de ofertas en las condiciones establecidas por el artículo L. 1411-1 del Código General de Entidades Territoriales.
Estos municipios, o estas agrupaciones de municipios, podrán no obstante delegar esta competencia de designación en la región, o en el caso de Córcega, en la entidad territorial de Córcega.
Artículo L730-3 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 36 I, II Diario Oficial de 27 de marzo de 2004)
La tarifa de las rentas pagadas por los titulares de autorización de ocupación o de otras formas de contribución de los usuarios del Mercado para su funcionamiento será fijada por el gestor y aprobada por el Prefecto.
El gestor del Mercado deberá presentar una cuenta de pérdidas y ganancias que le permita hacer frente al conjunto de sus obligaciones sociales, financieras y sanitarias establecidas o previsibles (1).
Si la explotación financiera de un mercado presentase o dejase prever un desequilibrio grave, los Ministros encargados de su tutela, tras haber aconsejado al gestor y, en su caso, a las entidades públicas que hubieran avalado los préstamos, podrán aumentar de oficio los cánones existentes, crear nuevas fuentes de ingresos, reducir los gastos y, de un modo general, tomar todas las disposiciones adecuadas para restablecer el equilibrio.
(1) NOTA - Estas disposiciones sólo serán aplicables a partir del primer ejercicio abierto tras la publicación de la primera disposición (véase el punto III del artículo 45 de la disposición n° 2004-274).
Artículo L730-4 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 37 Diario Oficial de 27 de marzo de 2004)
Se podrá crear un perímetro de referencia en torno al Mercado de Interés Nacional por decreto adoptado en Conseil d'Etat.
El perímetro de referencia implicará la aplicación de las prohibiciones previstas en el artículo L. 730-5. Las prohibiciones previstas se aplicarán a las ventas y a las operaciones accesorias a la venta de aquéllos
productos que se encuentren en las listas determinadas en cada caso por orden de los Ministros encargados. El decreto mencionado en el primer párrafo determinará la implantación del Mercado de Interés Nacional. La supresión anticipada de la totalidad o parte del perímetro, la extensión o la implantación del Mercado o su
traslado dentro del perímetro podrán ser determinados por decisión de la autoridad administrativa competente.
Artículo L730-5 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 38 Diario Oficial de 27 de marzo de 2004)
El decreto por el que se establece el perímetro de referencia prohibirá, en el interior de éste, la ampliación, el traslado o la creación de cualquier establecimiento en el que una persona física o jurídica practique ventas relativas a los productos o a operaciones accesorias a esas ventas, de otra forma que no sea al por menor, cuyas listas serán establecidas por orden interministerial como se prevé en el artículo L.730-4.
Esta prohibición no se aplicará a los productores y agrupaciones de productores para los productos que procedan de explotaciones situadas en el interior del perímetro de referencia.
No se considerará como una creación de establecimiento el cambio de titular del fondo de comercio. La extensión del establecimiento podrá referirse a la creación de nuevas actividades, o bien a la ampliación de los
locales comerciales. Las condiciones de aplicación de las disposiciones del presente artículo serán determinadas por decreto adoptado
en Conseil d'Etat.
Artículo L730-7 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 39 Diario Oficial de 27 de marzo de 2004)
Cuando el perímetro de referencia de un Mercado de Interés Nacional englobe el recinto de un puerto, las ventas
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CÓDIGO DE COMERCIO que no sean al detalle correspondientes a productos inscritos en las listas mencionadas en el artículo L.730-4 se regirán, en este recinto, por las disposiciones siguientes.
No se aplicarán las prohibiciones previstas en el artículo L.730-5 a las ventas relativas a productos dirigidos directamente por vía marítima a este puerto o a partir de este puerto y que correspondan a lotes cuya importancia sobrepase los límites establecidos por una orden conjunta de los Ministros encargados de la tutela de los "Mercados de Interés Nacional" y del Ministro competente en materia de puertos.
El decreto por el que se establece el perímetro de referencia podrá prohibir en el recinto del puerto las ventas de productos de importación dirigidos por otra vía que no sea la marítima, o autorizarlas solamente por lotes de una importancia que exceda de ciertos límites y en las condiciones que él establezca.
Artículo L730-8 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 40 Diario Oficial de 27 de marzo de 2004)
Excepcionalmente, la autoridad administrativa competente podrá conceder excepciones a la aplicación de las prohibiciones previstas en los artículos L.730-5 a L.730-7, en las condiciones establecidas por decreto adoptado en Conseil d'Etat.
Artículo L730-10 (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 41 Diario Oficial de 27 de marzo de 2004)
Las infracciones a las prohibiciones de los artículos L. 730-5 y L.730-7 así como a las disposiciones tomadas en aplicación de estos artículos deberán ser comprobadas y perseguidas en las condiciones determinadas por el párrafo primero del artículo L.450-1 y los artículos L.450-2 y L.450-3 y sancionadas con multa de 15.000 euros. Serán aplicables los artículos L.470-1 y L.470-4.
Artículo L730-12 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 42 Diario Oficial de 27 de marzo de 2004)
El derecho de ocupación privativa del emplazamiento del que disponga un comerciante establecido en el recinto de un Mercado de Interés Nacional será susceptible de ser incluido en la pignoración de su fondo de comercio.
Artículo L730-15 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 43 Diario Oficial de 27 de marzo de 2004)
Las disposiciones legislativas y reglamentarias relativas a la gestión y a la explotación de los mercados de productos agrícolas y de alimentación no serán aplicables a los "Mercados de Interés Nacional".
La organización general de los "Mercados de Interés Nacional" será determinada por decreto adoptado en Conseil d'Etat.
La modificación del recinto de los "Mercados de Interés Nacional" desprovistos de perímetro de referencia, así como su traslado, se realizarán libremente.
Artículo L730-16 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 44 Diario Oficial de 27 de marzo de 2004)
El Prefecto ejercerá las competencias de policía en el recinto del Mercado de Interés Nacional. En todo el perímetro de referencia, velará por la aplicación de las leyes y reglamentos que afecten al mercado y denunciará a este efecto al Fiscal de la República las infracciones cometidas. Cuando el mercado con su perímetro de referencia se extienda a varios departamentos, las competencias mencionadas pertenecerán al Prefecto nombrado por el Ministro de Interior.
TITULO IV DE LOS EVENTOS COMERCIALES Artículos L740-1 a
L740-3
Artículo L740-1 (Introducido por la Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 30 Diario Oficial de 27 de marzo de 2004)
Un recinto ferial es un conjunto inmobiliario cerrado e independiente dotado de infraestructuras y equipamientos adecuados, con carácter permanente y no sujeto a la declaración prevista en el artículo L. 720-5, y que alberga durante todo o parte del año diferentes eventos comerciales o de otra índole, con carácter temporal.
El recinto ferial deberá ser objeto de una inscripción ante la autoridad administrativa competente. El programa de los eventos comerciales que albergue deberá ser objeto, una vez por año, de una declaración previa a la autoridad administrativa competente.
Artículo L740-2 (Introducido por la Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 30 Diario Oficial de 27 de marzo de 2004)
Una feria profesional es un evento comercial destinado a promover un conjunto de actividades profesionales y reservado a visitantes provistos de un pase. Durante la feria profesional, sólo se podrán ofrecer en venta aquéllas mercancías que estén destinadas a un uso personal y cuyo valor no sobrepase un valor límite fijado por decreto.
La feria profesional deberá ser objeto de una declaración previa a la autoridad administrativa competente.
Artículo L740-3 (Introducido por la Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 30 Diario Oficial de 27 de marzo de 2004)
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CÓDIGO DE COMERCIO Las condiciones de aplicación del presente título serán establecidas por decreto adoptado en Conseil d'Etat.
LIBRO VIII DE ALGUNAS PROFESIONES SOMETIDAS A REGLAMENTACIÓN Artículos L811-1 a
L822-16 TITULO I DE LOS ADMINISTRADORES JUDICIALES, DE LOS MANDATARIOS JUDICIALES
PARA LA LIQUIDACIÓN DE EMPRESAS Y DE LOS PERITOS EN DIAGNÓSTICO EMPRESARIAL
Artículos L811-1 a L814-11
CAPITULO I De los administradores judiciales Artículos L811-1 a
L811-16
Sección I De la misión, de las condiciones para acceder al cargo y del ejercicio y de las
incompatibilidades Artículos L811-1 a L811-10
Subsección 1 De las misiones Artículo L811-1
Artículo L.811-1 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 1 y 13 Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art.158 VI, art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los administradores judiciales son los mandatarios, personas físicas o jurídicas, encargados en razón de una resolución judicial, de administrar los bienes ajenos o de ejercer funciones de asistencia o de supervisión en la gestión de estos bienes.
Son personalmente responsables de las tareas inherentes a la ejecución de su mandato. No obstante, cuando el buen desarrollo del procedimiento lo requiera y siempre que dispongan de una autorización motivada del presidente del Tribunal, podrán confiar a terceros, bajo su responsabilidad, una parte de dichas tareas.
Cuando los administradores judiciales encomienden a terceros tareas que forman parte de la misión que les ha encomendado el Tribunal, retribuirán a estos últimos sobre la remuneración que perciben en aplicación del decreto previsto en el artículo L.663-2.
Subsección 2 De las condiciones para acceder a la profesión Artículos L811-2 a
L811-5
Artículo L.811-2 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 2 y 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Sin perjuicio de lo dispuesto en determinados ámbitos específicos del Derecho, especialmente en lo concerniente a los menores y mayores de edad que precisen protección, y sin perjuicio de las misiones ocasionales que pudieran ser confiadas a los profesionales de la Justicia en materia civil, nadie podrá ser designado judicialmente para ejercer las funciones de administrador judicial, si no estuviera inscrito en el registro elaborado por una comisión nacional creada a estos efectos.
No obstante, de manera excepcional, mediante una resolución especialmente motivada y previa autorización del Fiscal de la República, el Tribunal podrá nombrar como administrador judicial a una persona física que atestigüe una experiencia o una competencia particular en relación con el asunto y que reúna las condiciones definidas en los apartados 1° a 4° del artículo L.811-5.
Las personas citadas en el párrafo anterior no deberán haber recibido en los últimos cinco años, directa o indirectamente, una remuneración o un pago de cualquier tipo de la persona física o jurídica que fuera objeto de una medida de administración, de asistencia o de supervisión, de una persona que posea el control de esta persona jurídica o de una de las sociedades controladas por ella en el sentido de los puntos II y III del artículo L.233-16, ni deberán haberse encontrado en la situación de asesores o de subordinados de dicha persona física o jurídica. Además, no deberán tener ningún interés personal en el mandato que se les confíe, ni haber sido administradores o mandatarios judiciales objeto de una decisión de exclusión o de baja de los registros en aplicación de los artículos L.811-6, L.811-12 y L.812-4. Estarán obligadas a ejecutar los mandatos que se les confíe y deberán ajustarse a las mismas obligaciones correspondientes a las actividades profesionales de los administradores judiciales inscritos en el registro nacionaL.No podrán desempeñar las funciones de administrador judicial de manera habitual.
Las personas nombradas en aplicación del segundo párrafo, al aceptar su mandato deberán declarar bajo honor
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CÓDIGO DE COMERCIO que reúnen las condiciones determinadas en los apartados 1° a 4° del artículo L.811-5, que se ajustan a las obligaciones mencionadas en el párrafo anterior y que no se encuentran bajo el peso de una prohibición del ejercicio en aplicación del apartado penúltimo del artículo L.814-10.
Cuando el Tribunal nombre a una persona jurídica, designará en su seno a una o varias personas físicas para representarla en el cumplimiento del mandato que se le haya confiado.
Artículo L.811-3 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 3 y 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El registro nacional se dividirá en secciones correspondientes a la circunscripción de cada Cour d'Appel .
Artículo L.811-4 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 4 y 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La comisión nacional mencionada en el artículo L.811-2 estará compuesta del siguiente modo: - Un consejero de la Cour de Cassation, como presidente, nombrado por el primer presidente de la Cour de
Cassation; - un magistrado de la Cour des comptes, nombrado por el primer presidente de la Cour des comptes; - un miembro de la Inspección General de Hacienda, nombrado por el Ministro de Economía y de Hacienda; - un magistrado de una Cour d'Appel, nombrado por el primer presidente de la Cour de Cassation; - un miembro de una jurisdicción mercantil de primer grado, nombrado por el primer presidente de la Cour de
Cassation; - un profesor de Derecho, de Ciencias Económicas o de Gestión, nombrado por el Ministro competente en materia
de Universidades; - un representante del Conseil d'Etat, nombrado por el vicepresidente del Conseil d'Etat; - dos personas cualificadas en materia económica o social, nombradas por el Ministro de Justicia; - tres administradores judiciales, inscritos en el registro nacional, elegidos por sus colegas en condiciones
determinadas por decreto adoptado en Conseil d'Etat. En caso de empate en la votación, el presidente tendrá voto de calidad. Se nombrará por tres años al presidente y a los miembros de la comisión, así como a sus suplentes, en igual
número y elegidos de entre las mismas categorías profesionales. El mandato será renovable una vez. Se nombrará a un magistrado de la Fiscalía y a su suplente para ejercer las funciones de Comisario del Gobierno
ante la comisión nacional y garantizar en especial la tramitación de las solicitudes de inscripción. El Estado cubrirá los gastos de funcionamiento de esta comisión.
Artículo L.811-5 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 5, art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Nadie podrá ser inscrito en el registro por la comisión si no reúne las siguientes condiciones: 1° Ser de nacionalidad francesa o ciudadano de un Estado miembro de la Comunidad Europea o de un Estado
parte del acuerdo sobre el Espacio Económico Europeo; 2° No haber sido el autor de hechos contrarios al honor o a la moral que hayan dado lugar a una condena penal; 3° No haber sido el autor de hechos de la misma índole que hayan dado lugar a una sanción disciplinaria o
administrativa de destitución, exclusión, revocación, retirada de habilitación o retirada de autorización; 4° No haber sido objeto de una resolución de quiebra personal o de una de las medidas de prohibición del ejercicio
o de privación de derechos previstas en el Capítulo V del Título II del Libro VI del presente Código, en el Título VI de la Ley n° 85-95 de 25 de enero de 1985 relativa al procedimiento de saneamiento judicial y a la liquidación judicial de las empresas o, en el régimen anterior de esta Ley, en el Título II de la Ley n° 67-563 de 13 de julio de 1967 sobre el procedimiento de saneamiento judicial, la liquidación de bienes, la quiebra personal y las bancarrotas;
5° Haber superado el examen de acceso al curso formativo profesional, haber realizado dicho curso formativo profesional y haber superado el examen de aptitud para las funciones de administrador judicial.
Sólo se admitirá a presentarse al examen de acceso al curso formativo profesional a las personas en posesión de los títulos o los diplomas determinados por decreto.
Por excepción a lo dispuesto anteriormente, las personas que reúnan las condiciones de competencia y de experiencia profesional fijadas por decreto adoptado en Conseil d'Etat quedarán dispensadas del examen de acceso al curso formativo profesionaL.La comisión podrá además dispensar a estas personas, en las condiciones fijadas por decreto adoptado en Conseil d'Etat, de una parte del curso formativo profesional y de la totalidad o parte del examen de aptitud para las funciones de administrador judicial.
Las personas jurídicas inscritas en el registro sólo podrán desempeñar las funciones de administrador judicial por medio de uno se sus miembros que esté a su vez inscrito en el registro.
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CÓDIGO DE COMERCIO Quedarán exentas de los requisitos del diploma, del curso y del examen profesional previstos en los apartados
sexto y séptimo las personas que justifiquen haber adquirido una calificación suficiente para el ejercicio de la profesión de administrador judicial en un Estado miembro de las Comunidades europeas que no sea Francia o un Estado parte en el Acuerdo sobre el Espacio Económico europeo, con la condición de realizar un examen de control de conocimientos cuyas condiciones serán determinadas igualmente por decreto adoptado en Conseil d'Etat. La lista de candidatos admitidos a presentarse al examen será establecida por la comisión.
Subsección 3 De las condiciones del ejercicio de la profesión Artículos L811-6 a
L811-9
Artículo L.811-6 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 6 y 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La comisión nacional, por su propia iniciativa o por requerimiento del Ministro de Justicia, del presidente del Consejo Nacional de administradores judiciales y de mandatarios judiciales, del comisario del Gobierno o del Fiscal de la República en cuya circunscripción esté establecido el administrador judicial, podrá, mediante decisión motivada y tras haber emplazado al interesado para que presente sus observaciones, retirar del registro mencionado en el artículo L.811-2 al administrador judicial que, en razón de su estado físico o mental, no pudiera asegurar el ejercicio normal de sus funciones.
Causar baja en el registro no impedirá el ejercicio de las diligencias disciplinarias en contra del administrador judicial si los hechos imputados se hubieran cometido durante el ejercicio de sus funciones.
Artículo L.811-7 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los administradores judiciales podrán constituir entre ellos sociedades civiles profesionales reguladas por la Ley nº 66-879 de 29 de noviembre de 1966 relativa a las sociedades civiles profesionales, para el ejercicio en común de su profesión. Podrán asimismo ejercer su profesión al amparo de sociedades de profesiones liberales reguladas por la Ley n° 90-1258 de 31 de diciembre de 1990 relativa el ejercicio en forma de sociedades de profesiones liberales sujetas a un estatuto legal o reglamentario o cuyo título esté protegido. Podrán también ser miembros de una agrupación de interés económico o de una agrupación europea de interés económico o socios de una sociedad participativa regulada por el Título II de la Ley nº 90-1258 de 31 de diciembre de 1990 relativa al ejercicio en forma de sociedades de profesiones liberales sujetas a un estatuto legal o reglamentario o cuyo título esté protegido.
Artículo L.811-8 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 7, art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los expedientes tramitados por el administrador judicial que abandone el ejercicio sus funciones, sea por el motivo que fuere, serán distribuidos por el órgano jurisdiccional entre los demás administradores en un plazo de tres meses contados desde el cese en sus funciones.
Sin embargo, para asegurar la eficacia en la administración de la Justicia, el órgano jurisdiccional podrá autorizar al antiguo administrador judicial a que prosiga la tramitación de uno o varios expedientes abiertos, salvo si la causa del abandono de sus funciones fuera su exclusión del registro. Este administrador judicial continuará sujeto a las disposiciones de los artículos L.811-10 à L.811-16, L.814-1 y L.814-5.
Artículo L.811-9 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las personas inscritas en el registro estarán habilitadas para ejercer sus funciones en todo el territorio nacional.
Subsección 4 De las incompatibilidades Artículo L811-10
Artículo L.811-10 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 8 y art. 13 Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art.164 II, art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La condición de administrador judicial inscrito en el registro será incompatible con el ejercicio de cualquier otra
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CÓDIGO DE COMERCIO profesión, salvo la de abogado.
Además, será incompatible con: 1° Todas las actividades de carácter mercantil, tanto si fueran ejercidas directamente como por persona
interpuesta; 2° La calidad de socio en una sociedad colectiva, de socio comanditario en una sociedad comanditaria simple o por
acciones, de gerente de una sociedad de responsabilidad limitada, de presidente del consejo de administración, miembro del directorio, director general o director general delegado de una sociedad anónima, de presidente o de dirigente de una sociedad por acciones simple, de miembro del consejo de supervisión o de administrador de una sociedad mercantil, de gerente de una sociedad civil, salvo si estas sociedad tuvieran como finalidad el ejercicio de la profesión de administrador judicial o la adquisición de locales para dicho ejercicio. Un administrador judicial podrá asimismo ejercer las funciones de gerente de una sociedad civil cuya finalidad exclusiva sea la gestión de intereses de carácter familiar.
La condición de administrador judicial inscrito en el registro no impedirá el ejercicio de una actividad de consulta para otras materias correspondientes a la calificación del interesado ni el cumplimiento de los mandatos de mandatario ad hoc y de conciliador previstos en los artículos L.611-3 y L.611-6 del presente Código y en el artículo L.351-4 del Código Rural, de auditor para la ejecución de un plan, de administrador o de liquidador en la forma amistosa, de perito judicial y de depositario por arreglo amistoso o por orden judiciaL.Esta actividad y estos mandatos, con excepción de los mandatos de mandatario ad hoc, de conciliador y de auditor de la ejecución del plan, sólo podrán ejercerse con carácter accesorio.
Las condiciones del presente artículo, a excepción de las del párrafo cuarto, serán aplicables a las personas jurídicas inscritas en el registro.
Sección II De la supervisión, de la inspección y de la disciplina Artículos L811-11 a
L811-16
Subsección 1 De la supervisión y de la inspección Artículos L811-11 a
L811-11-2
Artículo L.811-11 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 9 y art. 13 Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 155, art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los administradores judiciales estarán sometidos a la supervisión del Ministerio FiscaL.En su actividad profesional, habrán de someterse a inspecciones confiadas a la autoridad pública y en cuyo proceso estarán obligados a suministrar todas las informaciones o documentos útiles sin poder objetar el secreto profesional.
La organización y las condiciones de tales inspecciones serán determinadas por decreto adoptado en Conseil d'Etat.
En el marco del control ejercido por el consejo nacional mencionado en el artículo L.814-2, los administradores judiciales estarán obligados, sin poder objetar el secreto profesional, a someterse a los requerimientos de las personas encargadas del control para acceder a todas las informaciones o documentos útiles.
El auditor de cuentas del administrador judicial sometido a un control o a una inspección estará obligado, sin poder objetar el secreto profesional, a someterse a los requerimientos de las personas encargadas del control o de la inspección, y a comunicarles toda la información recabada o a todo documento realizado en el marco de su misión.
La Caja de Depósitos y Consignaciones estará obligada, sin poder objetar el secreto profesional, a someterse a los requerimientos de las personas encargadas de la inspección y del consejo nacional mencionado en el artículo L.814-2 en lo concerniente al ejercicio de sus funciones, debiendo comunicarles cualquier información y documento que estos considerasen necesarios para conocer los movimientos de fondos de las cuentas abiertas a nombre de cada administrador judicial y las cantidades que en ellas hubieran sido depositadas en concepto de los mandatos objeto de la inspección o control.
NOTA: Ley 2005-845 2005-07-26 art. 190: El último párrafo del artículo L.811-11-1 del Código de Comercio entrará en vigor a partir de la publicación de la Ley, es decir el 27 de julio de 2005.
Artículo L.811-11-1 (Disposición nº 2005-1126 de 8 de septiembre de 2005 art. 2 Diario Oficial de 9 de septiembre de 2005) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los administradores judiciales estarán obligados a nombrar a un auditor de cuentas encargado de realizar el control de su contabilidad especial y de ejercer, en dicho concepto, una misión permanente de control del conjunto de fondos, efectos, títulos y demás valores pertenecientes a terceros, de los que los administradores judiciales sean los únicos tenedores en virtud de un mandato conferido en el ejercicio de sus funciones.
Dicho control se ejercerá igualmente sobre las cuentas bancarias o postales que hayan sido abiertas para las necesidades de la actividad a nombre de los deudores incursos en uno de los procedimientos previstos en el título II del libro IV y que funcionen bajo el control exclusivo del administrador o de sus delegados debidamente autorizados.
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CÓDIGO DE COMERCIO Los auditores de cuentas, a efectos de control, podrán igualmente acceder a la contabilidad general del estudio, a
los procedimientos confiados al administrador y a cualquier información útil para el cumplimiento de su misión que pudiera proporcionarle el administrador o los terceros tenedores de los fondos, no obstante cualquier disposición en contrario.
Artículo L.811-11-2 (Introducido por la Disposición nº 2005-1126 de 8 de septiembre de 2005 art. 2 Diario Oficial de 9 de septiembre de 2005)
Con arreglo a las condiciones establecidas por decreto adoptado en Conseil d'Etat, los auditores de cuentas informarán a las autoridades encargadas de la supervisión, inspección y control de los administradores judiciales, sobre los resultados de su trabajo y señalarán las anomalías o irregularidades que hubieran detectado en el ejercicio de sus funciones
Subsección 2 De la disciplina Artículos L811-12 A a
L811-16
Artículo L.811-12 A (Ley nº 2003-7 de 3 de enero de 2003 art. 10 y art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cualquier infracción a las leyes y a los reglamentos, cualquier incumplimiento de las reglas profesionales, del honor y de la moral, incluso si estos fueran relativos a hechos cometidos fuera del ejercicio profesional, expondrán al mandatario judicial autor de dichos hechos a diligencias disciplinarias.
Artículo L.811-12 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 11 y art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La acción disciplinaria será interpuesta por el Ministro de Justicia, el Fiscal General de la Cour d'Appel en cuya circunscripción se hayan cometido los actos, el Comisario del Gobierno o el presidente del Consejo Nacional de administradores judiciales y mandatarios judiciales. La admisión de la dimisión de una persona inscrita en el registro de administradores judiciales no impedirá el ejercicio de las diligencias disciplinarias si los hechos imputados se hubieran cometido durante el ejercicio de sus funciones.
I. - La comisión nacional de inscripción actuará como cámara disciplinaria. El Comisario del Gobierno ejercerá en ella las funciones del Ministerio FiscaL.Podrá dictar las sanciones disciplinarias siguientes:
1º El apercibimiento; 2º La reprensión; 3º La inhabilitación profesional temporal por una plazo que no podrá exceder de los tres años; 4º La exclusión del registro de administradores judiciales. II. - El apercibimiento y la reprensión podrán ir acompañados, durante un año, de medidas de control que sometan
al administrador judicial a determinadas obligaciones especiales determinadas por la comisión. También podrá ser sometido a estas obligaciones el administrador judicial inhabilitado temporalmente cuando reemprenda el ejercicio de sus funciones.
III. - Cuando dicte una medida disciplinaria, la comisión podrá decidir, en función de la gravedad de los hechos cometidos, cargar a cuenta del administrador judicial la totalidad o parte de los gastos ocasionados por la presencia de un auditor de cuentas o de un perito durante los controles o inspecciones que hayan permitido constatar dichos hechos.
Artículo L.811-13 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 Diario Oficial de 4 de enero de 2003) (Ley nº 2004-130 de 11 de febrero de 2004 art. 69 3° Diario Oficial de 12 de febrero de 2004) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cualquier administrador judicial que hubiera sido objeto de diligencias penales o disciplinares podrá ser suspendido cautelarmente en el ejercicio de sus funciones por el Tribunal de Grande Instance de lugar en que esté establecido.
En caso de urgencia, si las inspecciones o verificaciones hubieran detectado riesgos para las sumas percibidas por el administrador judicial en razón de sus funciones, se podrá decidir la suspensión cautelar incluso antes de emprender las diligencias penales o disciplinares.
El tribunal podrá declarar en todo momento el fin de la suspensión cautelar, si el Comisario del Gobierno, o el administrador judicial así lo requiriesen.
La suspensión quedará sin efecto de pleno derecho cuando las acciones penales o disciplinares se hayan extinguido. Quedarán igualmente sin efecto de pleno derecho, en el caso previsto en el segundo párrafo, si no se hubiera iniciado ninguna diligencia penal o disciplinar al cabo de un mes de haber sido acordada la suspensión.
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CÓDIGO DE COMERCIO Artículo L.811-14 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La acción disciplinaria prescribirá a los diez años.
Artículo L.811-15 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El administrador judicial inhabilitado, excluido del registro o suspendido deberá abstenerse de realizar cualquier acto profesional.
Los actos realizados infringiendo esta inhabilitación podrán ser declarados nulos por el Tribunal, que resolverá a puerta cerrada a petición de cualquier interesado o del Ministerio FiscaL.La resolución tendrá fuerza ejecutiva frente a todos.
Cualquier infracción a las disposiciones anteriores será castigada con las penas establecidas en caso de delito de usurpación de título previsto en el artículo 433-17 del Código Penal.
Artículo L.811-16 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 12, art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Nadie que no esté inscrito en el registro de administradores judiciales podrá hacer uso de dicho título para otra cosa que no sea la misión que se le hubiera encomendado en virtud del segundo párrafo del artículo L.811-2 o del segundo párrafo del artículo L.811-8.
Cualquier infracción a esta disposición será castigada con las penas establecidas en caso de delito de usurpación de título previsto por el artículo 433-17 del Código Penal.
Se aplicarán las mismas penas al que utilice una denominación que presente un parecido con el título de administrador judicial susceptible de crear confusión entre los ciudadanos.
CAPITULO II De los mandatarios judiciales para la liquidación de empresas Artículos L812-1 a
L812-10
Sección I De las misiones, de las condiciones para acceder a esta profesión y a su
ejercicio y de las incompatibilidades Artículos L812-1 a L812-8
Subsección 1 De las misiones Artículo L812-1
Artículo L.812-1 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 14 Diario Oficial de 4 de enero de 2003) (Ley nº 2004-130 de 11 de febrero de 2004 art. 69 1° Diario Oficial de 12 de febrero de 2004) (Ley nº 2005-845 de 26 de julio de 2005 art.158 V, art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los mandatarios judiciales son los mandatarios, personas físicas o jurídicas, encargados por resolución judicial de representar a los acreedores y proceder a la liquidación de una empresa en las condiciones definidas por el título II del libro VI.
Son personalmente responsables de las tareas inherentes a la ejecución de su mandato. No obstante, cuando el buen desarrollo del procedimiento lo requiera y siempre que dispongan de una autorización motivada del presidente del Tribunal, podrán confiar a terceros, bajo su responsabilidad, una parte de dichas tareas.
Cuando los mandatarios judiciales encomienden a terceros tareas que forman parte de la misión que les haya confiado el Tribunal, retribuirán a estos últimos sobre la remuneración que perciban en aplicación del decreto previsto en el artículo L.663-2.
Subsección 2 De las condiciones para acceder a la profesión Artículos L812-2 a
L812-3
Artículo L.812-2 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 15 Diario Oficial de 4 de enero de 2003)
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CÓDIGO DE COMERCIO (Ley nº 2004-130 de 11 de febrero de 2004 art. 69 2º Diario Oficial de 12 de febrero de 2004) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
I. - Nadie podrá ser designado para ejercer las funciones de mandatario judicial si no estuviera inscrito en el registro elaborado a estos efectos por una comisión nacional.
II. - No obstante, de manera excepcional, mediante resolución especialmente motivada y previa autorización del Fiscal de la República, el Tribunal podrá nombrar como mandatario judicial a una persona física que atestigüe una experiencia o una competencia particular en relación con el asunto y que reúna las condiciones definidas en los apartados 1° a 4° del artículo L.812-3.
Las personas citadas en el párrafo anterior no deberán haber recibido en los últimos cinco años, directa o indirectamente, una remuneración o un pago de cualquier tipo de la persona física o jurídica incursa en un procedimiento de saneamiento judicial o de liquidación judicial, de una persona que posea el control de esta persona jurídica o de una de las sociedades controladas por ella en el sentido de los puntos II y III del artículo L.233-16, ni deberán haberse encontrado en la situación de asesores o subordinados de dicha persona física o jurídica. Además, no deberán tener ningún interés personal en el mandato que se les confíe, ni haber sido administradores o mandatarios judiciales objeto de una decisión de exclusión o baja de los registros en aplicación de los artículos L.811-6, L.811-12, L.812-4 y L.812-9. Estarán obligadas a ejecutar los mandatos que se les confíe y deberán ajustarse a las mismas obligaciones correspondientes a las actividades profesionales de los mandatarios judiciales inscritos en el registro nacionaL.No podrán desempeñar las funciones de mandatario judicial de manera habitual.
Las personas nombradas en aplicación del primer párrafo del presente punto II, al aceptar su mandato deberán declarar bajo honor que reúnen las condiciones determinadas en los epígrafes 1 a 4 del artículo L.812-3, que se ajustan a las obligaciones mencionadas en el párrafo anterior y que no están bajo el peso de una prohibición del ejercicio según lo dispuesto en el apartado penúltimo del artículo L.814-10.
III. - Cuando el Tribunal nombre a una persona jurídica, designará en su seno a una o varias personas físicas para representarla en el cumplimiento del mandato que se le haya confiado.
Artículo L.812-2-1 (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 16 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
El registro mencionado en el artículo L.812-2 se dividirá en secciones correspondientes a la circunscripción de cada Cour d'Appel .
Artículo L.812-2-2 (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 16 Diario Oficial de 4 de enero de 2003) (Ley nº 2004-130 de 11 de febrero de 2004 art. 53 II 1° Diario Oficial de 12 de febrero de 2004) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La comisión nacional mencionada en el artículo L.812-2 estará compuesta del siguiente modo: - Un consejero de la Cour de Cassation, como presidente, nombrado por el primer presidente de la Cour de
Cassation; - un magistrado de la Cour des Comptes, nombrado por el primer presidente de la Cour des Comptes; - un miembro de la Inspección General de Hacienda, nombrado por el Ministro de Economía y de Hacienda; - un magistrado de una Cour d'Appel, nombrado por el primer presidente de la Cour de Cassation; - un miembro de una jurisdicción mercantil de primer grado, nombrado por el primer presidente de la Cour de
Cassation; - un profesor de Derecho, de Ciencias Económicas o de Gestión, nombrado por el Ministro competente en materia
de Universidades; - un representante del Conseil d'Etat, nombrado por el vicepresidente del Conseil d'Etat; - dos personas cualificadas en materia económica o social, nombradas por el Ministro de Justicia; - tres mandatarios judiciales, inscritos en el registro nacional, elegidos por sus colegas en condiciones
determinadas por decreto adoptado en Conseil d'Etat. Uno de ellos podrá ser reemplazado por una persona inscrita en el registro de analistas de empresa cuando la comisión, en aplicación de lo dispuesto en el último párrafo del artículo L.813-1 L.813-2, emita un dictamen sobre la inscripción de un experto en esta especialidad, sobre su exclusión o su baja del registro.
En caso de empate en la votación, el presidente tendrá voto de calidad. Se nombrará por tres años al presidente y a los miembros de la comisión, así como a sus suplentes, en igual
número y elegidos de entre las mismas categorías profesionales. El mandato será renovable una vez. Se nombrará a un magistrado de la Fiscalía y a su suplente para ejercer las funciones de Comisario del Gobierno
ante la comisión nacional y garantizar en especial la tramitación de las solicitudes de inscripción. El Estado cubrirá los gastos de funcionamiento de esta comisión.
Artículo L.812-3 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 17 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el
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CÓDIGO DE COMERCIO 1 de enero de 2006, bajo reserva art. 190)
Nadie podrá ser inscrito en el registro por la comisión si no reuniera las siguientes condiciones: 1° Ser de nacionalidad francesa o ciudadano de un Estado miembro de la Comunidad Europea o de un Estado
parte del acuerdo sobre el Espacio Económico Europeo; 2° No haber sido el autor de hechos contrarios al honor o a la moral que hayan dado lugar a una condena penal; 3° No haber sido el autor de hechos de la misma índole que hayan dado lugar a una sanción disciplinaria o
administrativa de destitución, exclusión, revocación, retirada de habilitación o retirada de autorización; 4° No haber sido objeto de una resolución de quiebra personal o de una de las medidas de prohibición del ejercicio
o de privación de derechos previstas en el Capítulo V del Título II del Libro VI del presente Código, en el Título VI de la Ley n° 85-95 de 25 de enero de 1985 anteriormente citada, o en el régimen anterior de esta Ley, en el Título II de la Ley n° 67-563 de 13 de julio de 1967 anteriormente citada;
5° Haber superado el examen de acceso al curso formativo profesional, haber realizado dicho curso formativo profesional y haber superado el examen de aptitud para las funciones de mandatario judicial.
Sólo se admitirá a presentarse al examen de acceso al curso formativo profesional a las personas en posesión de los títulos o los diplomas determinados por decreto.
Por excepción a lo dispuesto anteriormente, las personas que reúnan las condiciones de competencia y de experiencia profesional fijadas por decreto adoptado en Conseil d'Etat quedarán dispensadas del examen de acceso al curso formativo profesionaL.La comisión podrá además dispensar a estas personas, en las condiciones establecidas por decreto adoptado en Conseil d'Etat, de una parte del curso formativo profesional y de la totalidad o parte del examen de aptitud para las funciones de mandatario judicial.
Las personas jurídicas inscritas en el registro sólo podrán desempeñar las funciones de mandatario judicial por medio de uno se sus miembros que esté a su vez inscrito en el registro.
Quedarán también exentos de los requisitos del diploma, del curso formativo y del examen profesional previstos en los apartados segundo y tercero las personas que demuestren haber adquirido una calificación suficiente para el ejercicio de la profesión de mandatario judicial para la liquidación de empresas, en un Estado miembro de las Comunidades Europeas que no sea Francia u otro Estado parte en el Acuerdo sobre el Espacio económico europeo, a condición de superar un examen de control de conocimientos. La lista de candidatos admitidos a presentarse al examen será establecida por la comisión.
Subsección 3 De las condiciones para ejercer la profesión Artículos L812-4 a
L812-7
Artículo L.812-4 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 18 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La comisión nacional, por su propia iniciativa o por requerimiento del Ministro de Justicia, del presidente del Consejo Nacional de administradores judiciales y de mandatarios judiciales, del comisario del Gobierno o del Fiscal de la República en cuya circunscripción esté establecido el mandatario judicial, mediante decisión motivada y tras haber emplazado al interesado para que presente sus observaciones, podrá acordar la baja en el registro mencionado en el artículo L.812-2 del mandatario judicial que, en razón de su estado físico o mental, no pudiera asegurar el ejercicio normal de sus funciones o del mandatario judicial que hubiera dado muestras de inaptitud en el ejercicio normal de sus funciones.
El hecho de causar baja en el registro no impedirá que se tramiten las diligencias disciplinarias contra el mandatario judicial para la saneamiento judicial y la liquidación de empresas si los hechos que se le imputan hubieran sido cometidos durante el ejercicio de sus funciones.
Artículo L.812-5 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los mandatarios judiciales podrán constituir entre ellos sociedades civiles profesionales reguladas por la Ley nº 66-879 de 29 de noviembre de 1966 anteriormente citada, para el ejercicio en común de su profesión. Podrán asimismo ejercer su profesión al amparo de sociedades de profesiones liberales reguladas por la Ley n° 90-1258 de 31 de diciembre de 1990 relativa el ejercicio en forma de sociedades de profesiones liberales sujetas a un estatuto legal o reglamentario o cuyo título esté protegido. Podrán también ser miembros de una agrupación de interés económico o de una agrupación europea de interés económico o socios de una sociedad participativa regulada por el Título II de la Ley nº 90-1258 de 31 de diciembre de 1990 relativa al ejercicio en forma de sociedades de profesiones liberales sujetas a un estatuto legal o reglamentario o cuyo título esté protegido.
Artículo L.812-6 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 19 Diario Oficial de 4 de enero de 2003)
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CÓDIGO DE COMERCIO (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los expedientes tramitados por el mandatario judicial que abandone el ejercicio sus funciones, sea por el motivo que fuere, serán distribuidos por el órgano jurisdiccional entre los demás mandatarios en un plazo de tres meses contados desde el cese en sus funciones.
No obstante, para asegurar la eficacia en la administración de la Justicia, el órgano jurisdiccional podrá autorizar al antiguo mandatario a que prosiga la tramitación de uno o varios expedientes abiertos, salvo si la causa del abandono de sus funciones fuera su exclusión del registro. Este mandatario continuará sujeto a las disposiciones de los artículos L.812-8 à L.812-10, L.814-1 y L.814-5.
Artículo L.812-7 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 20 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las personas inscritas en el registro estarán autorizadas a ejercer sus funciones en todo el territorio nacional.
Subsección 4 De las incompatibilidades Artículo L812-8
Artículo L.812-8 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 21 Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art.164 II, art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
La condición de mandatario judicial inscrito en el registro será incompatible con el ejercicio de cualquier otra profesión.
Además, será incompatible con: 1° Todas las actividades de carácter mercantil, tanto si fueran ejercidas directamente como por persona
interpuesta; 2° La calidad de socio en una sociedad colectiva, de socio comanditario en una sociedad comanditaria simple o por
acciones, de gerente de una sociedad de responsabilidad limitada, de presidente del consejo de administración, miembro del directorio, director general o director general delegado de una sociedad anónima, de presidente o de dirigente de una sociedad por acciones simple, de miembro del consejo de supervisión o de administrador de una sociedad mercantil, de gerente de una sociedad civil, salvo si estas sociedades tuvieran como finalidad el ejercicio de la profesión de mandatario judicial para la saneamiento judicial y la liquidación de empresas o la adquisición de locales para dicho ejercicio. Un mandatario podrá asimismo ejercer las funciones de gerente de una sociedad civil cuya finalidad exclusiva sea la gestión de intereses de carácter familiar.
La condición de mandatario judicial inscrito en el registro no impedirá el ejercicio de una actividad de consulta en los temas relativos a la calificación del interesado, ni el desempeño de mandatos de mandatario ad hoc y de conciliador previstos por el artículo L.611-3 del presente Código y por el artículo L.351-4 del Código Rural, de auditor para la ejecución del plan o de liquidador de bienes de una persona física o jurídica en forma amistosa, de perito judicial y de depositario judiciaL.Esta actividad y estos mandatos, con excepción de los mandatos de mandatario ad hoc, de conciliador y de auditor de la ejecución del plan, sólo podrán ejercerse con carácter accesorio. La misma persona no podrá ejercer sucesivamente las funciones de conciliador y mandatario judicial en la misma empresa hasta transcurrido el plazo de un año entre ambas funciones.
Las condiciones del presente artículo, a excepción de las del párrafo cuarto, serán aplicables a las personas jurídicas inscritas en el registro.
Sección II De la supervisión, de la inspección y de la disciplina Artículos L812-9 a
L812-10
Artículo L.812-9 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 22 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las disposiciones relativas a la supervisión, a la inspección y a la disciplina de los administradores judiciales previstas por los artículos L.811-11 a L.811-15 serán aplicables a los mandatarios judiciales.
La comisión nacional de inscripción actuará como cámara disciplinaria. El Comisario del Gobierno ejercerá en ella las funciones del Ministerio Fiscal.
Artículo L.812-10 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 23 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el
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CÓDIGO DE COMERCIO 1 de enero de 2006, bajo reserva art. 190)
Nadie que no esté inscrito en el registro de mandatarios judiciales podrá hacer uso de dicho título para otra cosa que no sea la misión que se le hubiera encomendado en virtud del párrafo primero del punto II del artículo L.812-2 o del párrafo segundo del artículo L.812-6.
Cualquier infracción a esta disposición será castigada con las penas establecidas en caso de delito de usurpación de título previsto por el artículo 433-17 del Código Penal.
Será castigado con las mismas penas el que hiciera uso de una denominación que presentara un parecido con el título previsto en el primer párrafo susceptible de crear confusión entre los ciudadanos.
CAPITULO III De los peritos en diagnóstico empresarial Artículo L813-1
Artículo L.813-1 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 24 Diario Oficial de 4 de enero de 2003) (Ley nº 2004-130 de 11 de febrero de 2004 art. 53 1 1° y 2°, II Diario Oficial de 12 de febrero de 2004) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los analistas de empresa serán nombrados judicialmente para realizar un informe sobre la situación económica y financiera de una empresa en caso de procedimiento de conciliación o de procedimiento de salvaguarda o de saneamiento judicial, o para participar en la elaboración de dicho informe en caso de procedimiento de salvaguarda o de saneamiento judicial.
Estos analistas no deberán haber recibido en los últimos cinco años, directa o indirectamente, una remuneración o un pago de cualquier tipo de la persona física o jurídica objeto de una medida de administración, asistencia o supervisión, de una persona que posea el control de esta persona jurídica o de una de las sociedades controladas por ella en el sentido de los puntos II y III del artículo L.233-16, ni deberán haberse encontrado en la situación de asesores o de subordinados de dicha persona física o jurídica. Además, no deberán tener ningún interés personal en el mandato que se les confíe.
Los analistas de empresa así designados deberán declarar bajo honor, al aceptar su mandato, que se ajustan a las obligaciones enumeradas en el párrafo anterior.
Estos analistas podrán ser elegidos entre los analistas de esta especialidad inscritos en los registros elaborados para la información de los jueces, en aplicación del artículo 2 de la Ley nº 71-498 de 29 de junio de 1971 relativa a los peritos judiciales.
Cada Cour d'Appel procederá a la inscripción de los peritos de esta especialidad según lo dispuesto en el artículo 2 de la Ley n° 71-498 de 29 de junio de 1971 relativa a los peritos judiciales. Su inscripción en el registro nacional de peritos judiciales se hará previo dictamen de la comisión nacional creada en el artículo L.812-2.
CAPITULO IV Disposiciones comunes Artículos L814-1 a
L814-11
Sección I De los recursos contra las decisiones de las comisiones de inscripción y de la
representación ante los poderes públicos Artículos L814-1 a L814-2
Subsección 1 De los recursos contra las resoluciones de las comisiones de inscripción Artículo L814-1
Artículo L.814-1 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 26 Diario Oficial de 4 de enero de 2003) (Ley nº 2004-130 de 11 de febrero de 2004 art. 69 4º Diario Oficial de 12 de febrero de 2004) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los recursos contra las decisiones tomadas por las comisiones nacionales, tanto en materia de inscripción o de baja como en materia de disciplina, serán llevados ante la Cour d'Appel de París.
Estos recursos tendrán carácter suspensivo.
Subsección 2 De la representación de las profesiones ante los poderes públicos Artículo L814-2
Artículo L.814-2 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 26 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las profesiones de administrador judicial y de mandatario judicial estarán representadas ante los poderes públicos
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CÓDIGO DE COMERCIO por un Consejo Nacional de administradores judiciales y de mandatarios judiciales, entidad de utilidad pública dotada de personalidad jurídica que estará encargada de velar por la defensa de los intereses colectivos de estas profesiones. Además, el Consejo Nacional tendrá la responsabilidad de velar por el cumplimiento de las obligaciones profesionales de sus miembros, de organizar su formación profesional, de asegurarse de que cumplen con su obligación de actualización y de perfeccionamiento de sus conocimientos, de controlar sus estudios y de hacer un informe anual sobre el cumplimiento de su misión, el cual remitirá al Ministro de Justicia.
Las modalidades de elección y funcionamiento del Consejo Nacional, compuesto en igual número por representantes de los administradores judiciales y por representantes de los mandatarios judiciales, serán establecidas por decreto adoptado en Conseil d'Etat.
Sección II De la garantía de la representación de los fondos, de la responsabilidad civil
profesional y de la remuneración Artículos L814-3 a L814-11
Subsección 1 De la garantía de la representación de los fondos y de la responsabilidad
civil profesional Artículos L814-3 a L814-7
Artículo L.814-3 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13, art. 27 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Existirá una caja dotada de personalidad civil y gestionada por los cotizantes que tendrá por finalidad garantizar el reembolso de los fondos, efectos o valores recibidos o gestionados por cada administrador judicial y cada mandatario judicial inscrito en los registros, durante las operaciones llevadas a cabo en el marco de sus funciones. Serán nombrados dos magistrados de la Fiscalía, uno en calidad de titular y el otro en calidad de suplente, para ejercer las funciones de Comisario del Gobierno ante la caja.
Los administradores judiciales y los mandatarios judiciales inscritos en los registros nacionales estarán obligados a adherirse a esta caja.
Los recursos de la caja estarán constituidos por el importe de una cotización especial anual pagada por los administradores judiciales y los mandatarios judiciales inscritos en los registros.
Las cotizaciones pagadas por los administradores judiciales y los mandatarios judiciales serán asignadas a la garantía exclusiva de los administradores judiciales y mandatarios judiciales inscritos en los registros.
Si los recursos de la caja resultaran insuficientes para cumplir con sus obligaciones, la caja procederá a una recaudación de fondos complementaria entre los profesionales inscritos en los registros.
La garantía de la caja actuará sin que pueda oponerse a los acreedores el beneficio de excusión previsto en el artículo 2021 del Código Civil y con la única razón de la exigibilidad de la deuda y de la no representación de los fondos por parte del administrador judicial o mandatario judicial inscrito en los registros.
La caja estará obligada a contratar un seguro frente a los riesgos que derivaran para ella de la aplicación del presente Código.
Los recursos contra las decisiones de la caja serán llevados ante el Tribunal de Grande Instance de París.
Artículo L.814-4 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13 y art. 28 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los administradores judiciales y los mandatarios judiciales inscritos en los registros deberán demostrar que poseen un seguro suscrito por medio de la caja de garantía. Este seguro cubrirá las consecuencias financieras de la responsabilidad civil en la que incurran los administradores judiciales mandatarios judiciales en caso de negligencias y faltas cometidas durante el ejercicio de sus funciones.
Artículo L.814-5 (Ley nº 2001-420 de 15 de mayo de 2001 art. 113 1 1º Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 art. 13, art. 29 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Al aceptar su misión, el administrador judicial no inscrito en el registro nacional que fuera nombrado en las condiciones previstas en el párrafo segundo del artículo L.811-2, o el mandatario no inscrito en el registro nacional que fuera nombrado en las condiciones previstas en el párrafo primero del punto II del artículo L.812-2, deberán probar que han suscrito una garantía para el reembolso de fondos, efectos o valores así como, en su caso, un seguro ante la caja de garantía. Este seguro cubrirá las consecuencias financieras de la responsabilidad civil en la que incurran dicho administrador judicial o dicho mandatario judicial, en caso de negligencias y faltas cometidas durante el ejercicio de sus funciones.
Artículo L814-6
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CÓDIGO DE COMERCIO (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 113 I 1° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-7 de 3 de enero de 2003 Artículo 13, Artículo 33 Diario Oficial de 2 de agosto de 2003)
Las condiciones de remuneración de los administradores judiciales y de los síndicos para la suspensión de pagos y la liquidación de empresas, tanto si están o no inscritos en los registros nacionales, así como las normas de subvención de la remuneración de las personas llamadas, a petición de aquéllos, para efectuar en beneficio de la empresa determinadas tareas técnicas no incluidas en las misiones que les sean encomendadas, serán determinadas por un decreto adoptado en Conseil d'Etat.
Artículo L814-7 (Introducido por la Ley nº 2003-7 de 3 de enero de 2001 Artículo 13 y Artículo 34 I Diario Oficial de 4 de enero de 2003)
Cuando el producto de la realización de los activos de la empresa no permiten que el liquidador o el representante de los acreedores obtengan, en concepto de la remuneración que se les debe en aplicación del artículo L. 814-6, una cantidad por lo menos igual al umbral fijado por decreto adoptado en Conseil d'Etat, el Tribunal declarará el expediente escaso de recursos, a propuesta del Juez Comisario y en base a los documentos justificantes presentados por el liquidador o el representante de los acreedores.
La misma resolución fijará la cantidad, que corresponderá a la diferencia entre la remuneración efectivamente percibida por el liquidador o el representante de los acreedores y el umbral mencionado en el párrafo anterior.
La cantidad abonada al representante de los acreedores o al liquidador será retenida sobre una parte proporcional de los intereses pagados por la Caja de Depósitos y Consignaciones en concepto de los fondos depositados en aplicación de los artículos L. 621-33, L. 621-68 y L. 622-8. Esta parte proporcional se destina en especial a un fondo gestionado por la Caja de Depósitos y Consignaciones bajo el control de un comité de administración. Las condiciones de aplicación del presente párrafo serán determinadas por decreto adoptado en Conseil d'Etat.
Subsección 2 De la remuneración Artículos L814-8 a
L814-11
Artículo L.814-8 (Ley nº 2003-7 de 3 de enero de 2003 art. 13, art. 30, art. 31 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cuando un administrador judicial o un mandatario judicial inscrito en los registros y nombrado por un órgano jurisdiccional para desempeñar en una empresa las misiones previstas en las disposiciones del Libro IV, ya hubiera actuado por cuenta de esta en calidad de asesor o en concepto de las misiones previstas en el párrafo penúltimo del artículo L.811-10 y en el párrafo penúltimo del artículo L.812-8, informará a dicho órgano jurisdiccional de la naturaleza y la importancia de las actividades realizadas en los últimos cinco años.
El incumplimiento de lo dispuesto en el párrafo anterior dará lugar a las diligencias disciplinarias correspondientes.
Artículo L.814-9 (Ley nº 2003-7 de 3 de enero de 2003 art. 13, art. 30, art. 32 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los administradores judiciales y los mandatarios judiciales inscritos en los registros tendrán la obligación de seguir una formación continuada que les permita actualizar y perfeccionar sus conocimientos. Esta formación estará organizada por el Consejo Nacional mencionado en el artículo L.814-2.
Artículo L.814-10 (Ley nº 2003-7 de 3 de enero de 2003 art. 13, art. 30 y art. 35 Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art.164 III, art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los administradores judiciales y los mandatarios judiciales no inscritos en los registros nacionales, nombrados en las condiciones previstas en el párrafo segundo del artículo L.811-2 o en el párrafo primero del punto II del artículo L.812-2, estarán sometidos a la supervisión del Ministerio Fiscal y estarán sujetos, en su actividad profesional, a inspecciones de la autoridad pública para las cuales deberán proporcionar todas las informaciones o documentos útiles sin poder objetar el secreto profesional.
Los auditores de cuentas de los administradores judiciales o de los mandatarios judiciales no inscritos que estén sometidos a un control o a una inspección, estarán obligados, sin poder objetar el secreto profesional, a someterse a los requerimientos de las personas encargadas del control o de la inspección y a comunicarles toda la información recabada o todo documento elaborado en el marco de su misión.
En el caso de que dichos administradores judiciales o mandatarios judiciales fueran culpables algún acto constitutivo de las infracciones o del incumplimiento mencionados en el artículo L.811-12 A, el Fiscal de la República podrá solicitar al Tribunal de Grande Instance que les prohíba el ejercicio de las funciones de administrador judicial o de mandatario judicial.
Las medidas de prohibición tomadas en aplicación del párrafo anterior serán comunicadas al Ministro de Justicia, para ser difundidas a los Fiscales Generales.
Artículo L.814-11
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CÓDIGO DE COMERCIO (Ley nº 2003-7 de 3 de enero de 2003 art. 13, art. 30 y art. 36 Diario Oficial de 4 de enero de 2003) (Disposición nº 2005-845 de 26 de julio de 2005 art. 165 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Cualquier cantidad detentada por un administrador judicial o un mandatario judicial en concepto de un mandato amistoso será ingresada en la cuenta de depósito de la Caja de Depósitos y Consignaciones, salvo si el mandante decidiera de manera expresa optar por otra entidad financiera. En caso de retraso, el administrador judicial o el mandatario judicial deberá pagar el interés legal aumentado en cinco puntos por aquellas cantidades que no hubiera ingresado.
TITULO II DE LOS AUDITORES DE CUENTAS Artículos L820-1 a
L822-16
CAPITULO PRELIMINAR Disposiciones generales Artículos L820-1 a
L820-7
Artículo L820-1 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 113 I 2° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 99, Artículo 110 1° Diario Oficial de 2 de agosto de 2003)
No obstante cualquier disposición en contrario, los artículos L.225-227 a L.225-242, así como las disposiciones del presente título, serán aplicables a los auditores de cuentas nombrados en todas las personas jurídicas sea cual fuere la clase de certificación prevista en su misión. También serán aplicables a estas personas sea cual fuere su estatuto jurídico, siempre ateniéndose a las normas que les sean propias.
Las obligaciones de los presidentes del consejo de administración, directores generales, administradores, miembros del directorio, gerentes de las sociedades comerciales, reguladas por los artículos citados en el párrafo anterior, serán aplicables también a los dirigentes de las personas jurídicas obligadas a tener un auditor de cuentas.
Artículo L820-2 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 113 I 2° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 99, Artículo 110 2° Diario Oficial de 2 de agosto de 2003)
Nadie podrá prevalerse en el título de auditor de cuentas si no cumple las condiciones citadas en los artículos L.225-227 a L.225-242 y en las disposiciones del presente título.
Artículo L820-3 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 113 I 2° Diario Oficial de 16 de mayo de 2001) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 99, Artículo 109 Diario Oficial de 2 de agosto de 2003)
Con miras a su designación, el auditor de cuentas informará por escrito a la persona cuyas cuentas se propone certificar acerca de su afiliación a una red, nacional o internacional, que no tenga como actividad exclusiva el control legal de cuentas y cuyos miembros tengan algún interés económico en común. Llegado el caso, dará a conocer a la persona cuyas cuentas se propone certificar el importe global de honorarios percibidos por esta red en concepto de servicios que no estén directamente ligados a su misión de auditor de cuentas y que hayan sido prestados por la red a una persona controlada o que controle, en el sentido de los puntos I y II del artículo L. 233-3. Estas informaciones se incorporarán a los documentos puestos a disposición de los accionistas en aplicación del artículo L. 225-108. Actualizadas cada año por el auditor de cuentas, estas informaciones se pondrán a disposición de los socios y accionistas y, en el caso de las asociaciones, de los adherentes y donantes, en la sede de la persona cuyas cuentas certifique.
La información relativa al importe de los honorarios abonados a los auditores de cuentas se pondrán a disposición de los socios y accionistas y, en el caso de las asociaciones, de los adherentes y donantes, en la sede de la persona controlada.
Artículo L820-4 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 113 I 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 99 Diario Oficial de 2 de agosto de 2003)
No obstante cualquier disposición en contrario: 1º Será castigado con dos años de prisión y 30.000 euros de multa el dirigente de una persona jurídica obligada a
tener un auditor de cuentas, que no promoviera el nombramiento de éste o no lo convocara a alguna junta general (sanciones penales);
2º Serán castigados con cinco años de prisión y 75.000 euros los dirigentes de una persona jurídica o de toda persona al servicio de una persona jurídica obligada a tener un auditor de cuentas, que obstaculizaran las comprobaciones o controles de los auditores de cuentas o de los peritos nombrados en ejecución de los artículos L.223-37 y L.225-231, o les denagaran la presentación inmediata de todos los documentos útiles para el ejercicio de su misión y, en particular, de todos los contratos, libros, documentos contables y registros de actas.
Artículo L820-5
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CÓDIGO DE COMERCIO (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 113 I 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 99, Artículo 116 Diario Oficial de 2 de agosto de 2003)
Será castigado con un año de prisión y 15.000 euros de multa el que (sanciones penales: 1º Hiciera uso de la denominación de auditor de cuentas o de una denominación que presentara un parecido
susceptible de provocar confusión en el público, sin estar regularmente inscrito en el registro mencionado en el punto I del artículo L. 822-1 ni haber prestado juramento en las condiciones previstas en el artículo L. 822-10;
2º Ejerciera ilegalmente la profesión de auditor de cuentas, infringiendo las disposiciones del punto I del artículo L.822-1 y del artículo L.822-10 o una medida de inhabilitación o de suspensión temporal;
Se aplicarán a los auditores de cuentas los artículos 226-13 y 226-14 del Código Penal relativos al secreto profesional.
Artículo L820-6 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 113 I 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 99 Diario Oficial de 2 de agosto de 2003)
Será castigado con seis meses de prisión y 7.500 euros de multa (sanciones penales), el que aceptara, ejerciera o conservara las funciones de auditores de cuentas, a pesar de las incompatibilidades legales, tanto en su nombre personal como en calidad de socio en una sociedad de auditores de cuentas.
Artículo L820-7 (Ley nº 2001-420 de 15 de mayo de 2001 Artículo 113 I 2° Diario Oficial de 16 de mayo de 2001) (Disposición nº 2000-916 de 19 de septiembre de 2000 Artículo 3 Diario Oficial de 22 de septiembre de 2000, con entrada en vigor el 1 de enero de 2002) (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 99 Diario Oficial de 2 de agosto de 2003)
Será castigado con cinco años de prisión y de 75.000 euros de multa (sanciones penales) el que diera o confirmara, tanto en su propio nombre como en calidad de socio de una sociedad de auditores de cuentas, informaciones falsas sobre la situación de la persona jurídica o de no revelar al Fiscal de la República los hechos delictivos de los que hubiera tenido conocimiento.
CAPITULO I De la organización y del control de la profesión Artículos L821-1 a
L821-12
Artículo L821-1 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
Se creará un Alto Consejo de auditoría de cuentas que estará bajo la autoridad del Ministro de Justicia y cuya misión consistirá en:
- supervisar la profesión, con la ayuda del Colegio Nacional de auditores de cuentas instituido por el artículo L. 821-6;
- velar por el respeto de la deontología y de la independencia de los auditores de cuentas. Para el cumplimiento de su misión, el Alto Consejo de auditoría de cuentas estará en particular encargado de: - identificar y promover las buenas prácticas profesionales; - dar su opinión sobre las normas del ejercicio de la profesión elaboradas por el Colegio Nacional de auditores de
cuentas antes de su homologación por orden del Ministro de Justicia; - proceder a la inscripción de los auditores de cuentas en su calidad de instancia de apelación de las decisiones de
las comisiones regionales mencionadas en el artículo L.822-2; - definir las orientaciones y el marco de los controles periódicos previstos en el artículo L. 821-7 y supervisar su
aplicación y su seguimiento en las condiciones definidas por el artículo L. 821-9; - hacer aplicar la disciplina por parte de los auditores de cuentas en su calidad de instancia de apelación de las
decisiones tomadas por las cámaras regionales mencionadas en el artículo L. 822-6.
Artículo L821-2 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
La opinión mencionada en el apartado seis del artículo L. 821-1 será recabada por el Ministro de Justicia, previa consulta de la Autoridad de Mercados financieros, de la Comisión bancaria y de la Comisión de control de seguros, mutuas y organismos de previsión, a partir del momento en que dicha opinión se refiera a sus competencias respectivas.
Artículo L821-3 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
El Alto Consejo de auditoría de cuentas constará de: 1º Tres magistrados, entre los cuales un miembro de la Cour de Cassation, como presidente, un magistrado de la
Cour des comptes y un magistrado de la Orden Judicial; 2º El presidente de la Autoridad de Mercados Financieros o su representante, un representante del Ministro de
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CÓDIGO DE COMERCIO Economía y un profesor de Universidad especializado en materia jurídica, económica o financiera;
3º Tres personas cualificadas en materia económica o financiera; dos de las cuales escogidas por sus competencias en materia de empresas que hacen un llamamiento público al ahorro y la tercera por sus competencias en el ámbito de las pequeñas y medianas empresas, en el de las personas jurídicas de derecho privado que tienen una actividad económica y en el de las asociaciones;
4º Tres auditores de cuentas, dos de los cuales experimentados en auditoría de cuentas de las personas que hacen un llamamiento público al ahorro o a la generosidad pública.
Las decisiones serán tomadas por mayoría de votos. En caso de empate de votos, el del presidente será determinante.
El presidente y los miembros del Alto Consejo de auditoría de cuentas serán nombrados por decreto por un periodo de seis años renovables. El Alto Consejo de auditoría de cuentas será renovado en su mitad cada tres años.
El Alto Consejo constituirá comisiones consultivas especializadas para la preparación de sus decisiones y dictámenes. Estas comisiones, llegado el caso, podrán recurrir a expertos.
Artículo L821-4 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
El Ministro de Justicia nombrará a un Comisario del Gobierno ante el Alto Consejo de auditoría de cuentas. Éste no tendrá derecho al voto. El Comisario del Gobierno no tomará parte en las deliberaciones de carácter disciplinar. Salvo en materia disciplinaria, podrá solicitar una segunda deliberación en las condiciones fijadas por decreto adoptado en Conseil d'Etat.
Artículo L821-5 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
Los fondos necesarios para el funcionamiento del Alto Consejo quedarán inscritos en el presupuesto del Ministerio de Justicia.
Artículo L821-6 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
Se creará ante el Ministro de Justicia un Colegio Nacional de auditores de cuentas, entidad de utilidad pública dotada de una personalidad jurídica, encargada de representar a la profesión de auditor de cuentas ante los poderes públicos.
Velará por el buen ejercicio de la profesión, su supervisión y la defensa del honor y de la independencia de sus miembros.
Se creará un Colegio Regional de auditores de cuentas, dotado de una personalidad jurídica, en cada circunscripción de Cour d'appel. No obstante, el Ministro de Justicia podrá proceder a reagrupaciones, a propuesta del Colegio Nacional y previa consulta, a través de este último, de los Colegios Regionales interesados.
Los recursos del Colegio Nacional y de los Colegios Regionales estarán constituidos en su mayor parte por el producto de una cotización anual pagada por los auditores de cuentas.
Artículo L821-7 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
En el marco de su actividad profesional, los auditores de cuentas estarán sujetos a los siguientes controles: a) Las inspecciones mencionadas en el artículo L. 821-8; b) Los controles periódicos organizados en las condiciones definidas por el Alto Consejo; c) Los controles ocasionales decididos por el Colegio Nacional o los Colegios Regionales.
Artículo L821-8 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
El Ministro de Justicia podrá diligenciar inspecciones y solicitar, con este fin, la colaboración de la Autoridad de mercados financieros, del Colegio Nacional de auditores de cuentas, de la Comisión bancaria o de la Comisión de control de seguros, mutuas e instituciones de previsión.
La Autoridad de mercados financieros podrá diligenciar cualquier inspección de un auditor de cuentas de una persona que haga un llamamiento público al ahorro o de un organismo de inversión colectiva y solicitar, con este fin, la colaboración del Colegio Nacional de auditores de cuenta y, llegado el caso, de las personas y autoridades enumeradas en el apartado segundo del artículo L. 621-9-2 del Código Monetario y Financiero. El presidente de la Autoridad de mercados financieros o su representante no tomará parte en las deliberaciones de carácter disciplinar del Alto Consejo que, llegado el caso, tuvieran lugar a raíz de dicha inspección.
Artículo L821-9 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
Los controles previstos en las letras b y c del artículo L. 821-7 serán efectuados por el Colegio Nacional o los Colegios Regionales.
Cuando estos controles sean relativos a auditores de cuentas de personas que hagan un llamamiento público al ahorro o de organismos de inversión colectiva, serán efectuados por el Colegio Nacional con la colaboración de la Autoridad de mercados financieros.
Artículo L821-10 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
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CÓDIGO DE COMERCIO En el caso de hechos de particular gravedad que justifiquen sanciones penales o disciplinarias, y cuando la
urgencia y el interés público lo justifiquen, el Ministro de Justicia podrá decidir la suspensión cautelar de un auditor de cuentas, persona física, desde el momento de la apertura del sumario y previa presentación de observaciones por parte del auditor de cuentas. El presidente de la Autoridad de mercados financieros y el presidente del Colegio Nacional de auditores de cuentas podrán recurrir al Ministro de Justicia para que tome esta decisión.
En cualquier momento, el Ministro de Justicia podrá poner fin a la suspensión cautelar por iniciativa propia o a solicitud del interesado o de las autoridades mencionadas en el apartado primero.
La suspensión cautelar finalizará de pleno derecho cuando las acciones penales o disciplinarias se hayan extinguido.
Artículo L821-11 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
Las condiciones de aplicación de los artículos L. 821-3 y L. 821-6 a L.821-10 serán determinadas por decreto adoptado en Conseil d'Etat.
Artículo L821-12 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 100 Diario Oficial de 2 de agosto de 2003)
Los auditores de cuentas estarán obligados a proporcionar toda la información y los documentos que les sean solicitados con motivo de las inspecciones y controles, sin poder objetar el secreto profesional.
CAPITULO II Estatuto de los auditores de cuentas Artículos L822-1 a
L822-16
Sección I De la inscripción y de la disciplina Artículos L822-1 a
L822-8
Subsección 1 De la inscripción Artículos L822-1 a
L822-5
Artículo L822-1 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 101, Artículo 102 y Artículo 103 Diario Oficial de 2 de agosto de 2003)
Nadie podrá ejercer las funciones de auditor de cuentas, si no ha sido previamente inscrito en un lista elaborada con este fin.
Artículo L822-2 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 101, Artículo 102 y Artículo 103 Diario Oficial de 2 de agosto de 2003)
Se creará una comisión regional de inscripción en la circunscripción de cada Cour d'appel. Estará encargada de elaborar y actualizar la lista mencionada en el artículo L. 822-1.
Cada comisión regional de inscripción estará compuesta de: 1º Un magistrado de la Orden Judicial, como presidente; 2º Un magistrado de la Cámara Regional de Cuentas; 3º Un profesor de Universidad especializado en materia jurídica, económica o financiera; 4º Dos personas cualificadas en materia jurídica, económica o financiera; 5º Un representante del Ministro de Economía; 6º Un miembro del Colegio Regional de auditores de cuentas. El presidente y los miembros de la comisión regional de inscripción, así como sus suplentes, estarán nombrados
por una Orden del Ministro de Justicia, por un periodo de tres años renovables. Las decisiones serán tomadas por mayoría de votos. En caso de empate de votos, el del presidente será
determinante. Los recursos contra las decisiones de las comisiones regionales de inscripción serán presentados ante el Alto
Consejo de auditoría de cuentas.
Artículo L822-3 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 101, Artículo 102 y Artículo 103 Diario Oficial de 2 de agosto de 2003)
Todo auditor de cuentas deberá prestar juramento, ante la Cour d'appel competente, de que cumplirá con los deberes propios de su profesión con honor y lealtad y respetará y hará cumplir las leyes.
Artículo L822-4 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 101, Artículo 102 y Artículo 103 Diario Oficial de 2 de agosto de 2003)
Toda persona inscrita en la lista mencionada en el artículo L. 822-1 que no hubiera ejercido las funciones de auditor de cuantas durante un periodo de tres años, estará obligada a seguir una formación continuada particular antes
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CÓDIGO DE COMERCIO de aceptar una misión de certificación.
Artículo L822-5 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 101, Artículo 102 y Artículo 103 Diario Oficial de 2 de agosto de 2003)
Las condiciones de aplicación de la presente subsección serán precisadas por decreto adoptado en Conseil d'Etat.
Subsección 2 De la disciplina Artículos L822-6 a
L822-8
Artículo L822-6 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 101, Artículo 102 y Artículo 103 Diario Oficial de 2 de agosto de 2003)
La Comisión Regional de Inscripción se constituirá en cámara regional de disciplina y será competente en materia de acción disciplinaria interpuesta contra un auditor de cuentas miembro de un colegio regional, cualquiera que sea el lugar en el que se hayan cometido los hechos reprochados.
Artículo L822-7 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 101, Artículo 102 y Artículo 103 Diario Oficial de 2 de agosto de 2003)
La Cámara Regional de disciplina podrá conocer a instancia del Ministro de Justicia, del Fiscal de la República, del presidente del Colegio Nacional de auditores de cuentas o del presidente del Colegio Regional.
Además de las personas determinadas por decreto adoptado en Conseil d'Etat, el presidente de la Autoridad de mercados financieros podrá recurrir al Fiscal General para el ejercicio de la acción disciplinaria. Cuando ejerza esta facultad, no podrá tomar parte en las deliberaciones de la instancia disciplinaria del Alto Consejo al que se recurra para el mismo procedimiento.
Las decisiones de la Cámara Regional de disciplina serán susceptibles de recurso ante el Alto Consejo de auditoría de cuentas, a instancia de las autoridades mencionadas en el presente artículo y del profesional interesado.
Un magistrado del Orden Judicial, designado por el Ministro de Justicia, que pertenezca a la fiscalía o a la fiscalía general, ejercerá las funciones del Ministerio Público ante cada cámara regional y ante el Alto Consejo competente en materia disciplinaria.
Las condiciones de aplicación del presente artículo serán determinadas por decreto adoptado en Conseil d'Etat.
Artículo L822-8 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2003 Artículo 101, Artículo 102 y Artículo 103 Diario Oficial de 2 de agosto de 2003)
Las sanciones disciplinarias serán las siguientes: 1º El apercibimiento; 2º La reprensión; 3º La prohibición temporal del ejercicio durante un plazo que no podrá exceder de cinco años; 4º La exclusión de la lista de auditores de cuentas. También se podrá proceder a la retirada del título honorario. El apercibimiento, la reprensión y la prohibición temporal del ejercicio profesional podrán acompañarse de una
sanción complementaria de ineligibilidad a los organismos profesionales por un periodo de diez años o más. El auditor de cuentas que haya sido sancionado con una prohibición temporal del ejercicio profesional podrá
beneficiarse de una medida de suspensión de la sanción. La suspensión de la pena no se extenderá a las sanciones complementarias que se tomen en aplicación del apartado anterior. Si, en un plazo de cinco años contados desde que se hubiera dictado la sanción, el auditor de cuentas cometiera una infracción o una falta que diera lugar a una nueva sanción disciplinaria, ésta tendría como consecuencia la ejecución de la primera sanción sin confusión posible con la segunda.
Cuando dicten una sanción disciplinaria, el Alto Consejo y las Cámaras Regionales podrán decidir cargar a cuenta del auditor de cuentas la totalidad o parte de los gastos ocasionados por las inspecciones o controles que hubieran permitido constatar los hechos sancionados.
Sección II De la deontología y de la independencia de los auditores de cuentas Artículos L822-9 a
L822-16
Artículo L822-9 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2001 Artículo 104 II Diario Oficial de 2 de agosto de 2003)
Las funciones de auditor de cuentas serán ejercidas por personas físicas o sociedades constituidas entre ellas bajo cualquier forma.
Las tres cuartas partes del capital de las sociedades de auditores serán detentadas por auditores de cuentas. Cuando una sociedad de auditores de cuentas tenga una participación en el capital de otra sociedad de auditores de cuentas, los accionistas o socios no auditores de cuentas no podrán detentar más del 25% del conjunto del capital de las dos sociedades. Las funciones de gerente, de presidente del consejo de administración o del directorio, de
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CÓDIGO DE COMERCIO presidente del consejo de supervisión y del director general serán asumidas por auditores de cuentas. Las tres cuartas partes al menos de los miembros de los órganos de gestión, de administración, de dirección o de supervisión y las tres cuartas partes al menos de los accionistas o socios deberán ser auditores de cuentas. Los representantes permanentes de las sociedades de auditores de cuentas, socios o accionistas, deberán ser auditores de cuentas.
En las sociedades de auditores de cuentas inscritas, las funciones de auditores de cuentas serán ejercidas, en nombre de la sociedad, por auditores de cuentas personas físicas que sean socios, accionistas o dirigentes de esta sociedad. Estas personas sólo podrán ejercer las funciones de auditor de cuentas en el seno de una única sociedad de auditores de cuentas. Los miembros del consejo de administración o del consejo de supervisión podrán ser empleados de la sociedad sin limitación de número ni condición de antigüedad en su calidad de trabajador.
En caso de fallecimiento de un accionista o socio auditor de cuentas, sus derechohabientes dispondrán de un plazo de dos años para ceder sus acciones en todo o en parte a un auditor de cuentas.
La admisión de cualquier nuevo accionista o socio estará subordinada a una autorización previa que, en las condiciones previstas por los estatutos, podrá ser otorgada o bien por la junta de accionistas o de los poseedores de participaciones, o bien por el consejo de administración, el consejo de supervisión o los gerentes, según corresponda.
Por excepción a lo dispuesto anteriormente, el ejercicio de estas funciones es simultáneamente posible en una sociedad de auditores de cuentas y de otra sociedad de auditores de cuentas en la que la primera posea más de la mitad del capital social o en el caso en que las dos sociedades tengan como mínimo la mitad de los socios en común.
Artículo L822-10 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2001 Artículo 104 II Diario Oficial de 2 de agosto de 2003)
Las funciones de auditor de cuentas serán incompatibles: 1º Con cualquier actividad o cualquier acto que pueda afectar su independencia; 2º Con cualquier empleo remunerado; sin embargo, un auditor de cuentas podrá impartir docencia en relación con
el ejercicio de su profesión o bien ocupar un empleo remunerado a cuenta de un auditor de cuentas o de un censor de cuentas;
3º Con cualquier actividad comercial, tanto si es ejercida directamente como por persona interpuesta.
Artículo L822-11 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2001 Artículo 104 II Diario Oficial de 2 de agosto de 2003)
I. - El auditor de cuentas no podrá tener, recibir o conservar, directa o indirectamente, ningún interés en relación con la persona cuyas cuentas vaya a certificar, o en relación con una persona que la controle o que esté controlada por ella, en el sentido de los puntos I y II del artículo L. 233-3..
Sin perjuicio de lo dispuesto en el presente Libro o en el Libro II, el Código deontológico mencionado en el artículo L. 822-16 definirá las relaciones personales, financieras y profesionales, concomitantes o anteriores a la misión del auditor de cuentas, que son incompatibles con el ejercicio de la profesión. Precisará, en particular, las situaciones en las que la independencia del auditor de cuentas se ve afectada, cuando pertenece a una red pluridisciplinar, nacional o internacional, cuyos miembros tienen un interés económico en común, debido a la prestación de servicios a una persona controlada o que controla, en el sentido de los puntos I y II del artículo L. 233-3, la persona cuyas cuentas están certificadas por el auditor de cuentas en cuestión. El Código deontológico precisará igualmente las restricciones que se deberá aplicar a la posesión de intereses financieros por parte de los empleados y los colaboradores del auditor de cuentas en las sociedades cuyas cuentas certifica.
II. - Estará prohibido para un auditor de cuentas el hecho de prestar una asesoría o cualquier otro servicio que no forme parte de las funciones directamente ligadas a su misión de auditor de cuentas tal y como está definida por las normas de ejercicio profesional mencionadas en el apartado sexto del artículo L. 821-1,a toda persona que le haya encomendado la certificación de sus cuentas o a las personas que la controlan o que están controladas por ésta en el sentido de los puntos I y II del artículo L. 233-3.
Cuando un auditor de cuentas esté afiliado a una red nacional o internacional cuyos miembros tengan un interés económico en común y cuya actividad no sea exclusivamente la auditoría legal de cuentas, no podrá certificar las cuentas de una persona que, en virtud de un contrato suscrito con esta red o un miembro de esta red, se beneficie de una prestación de servicios que no esté directamente ligada a la misión de auditor de cuentas según la apreciación dada por el Alto Consejo de auditoría de cuentas en aplicación del apartado tercero del artículo L. 821-1.
Artículo L822-12 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2001 Artículo 104 II Diario Oficial de 2 de agosto de 2003)
Los auditores de cuentas y los miembros firmantes de una sociedad de auditores de cuentas no podrán ser nombrados dirigentes o empleados asalariados de las personas jurídicas que controlan hasta pasados cinco años tras el cese en sus funciones.
Durante este plazo, no podrán ejercer las mismas funciones en una persona jurídica controlada o que controla en el sentido de los puntos I y II del artículo L. 233-3 la persona jurídica cuyas cuentas hayan certificado.
Artículo L822-13 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2001 Artículo 104 II Diario Oficial de 2 de agosto de 2003)
Las personas que hayan sido dirigentes o empleados de una persona jurídica no podrán ser nombradas auditores de cuentas de esta persona hasta que transcurran cinco años desde el cese en sus funciones.
Durante el mismo plazo, no podrán ser nombradas auditores de cuentas en las personas jurídicas que posean un 10% del capital de la persona jurídica en la que ejercían sus funciones o de las que ésta poseía al menos un 10% del capital en el momento del cese en sus funciones.
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CÓDIGO DE COMERCIO Las prohibiciones previstas en el presente artículo para las personas mencionadas en el párrafo primero serán
aplicables a las sociedades de auditores de cuentas de las que dichas personas fueran socias, accionistas o dirigentes.
Artículo L822-14 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2001 Artículo 104 II Diario Oficial de 2 de agosto de 2003)
Estará prohibido para un auditor de cuentas, persona física, así como para un miembro firmante de una sociedad de auditores de cuentas, el hecho de certificar durante más de seis ejercicios consecutivos las cuentas de personas jurídicas que hagan un llamamiento público al ahorro.
Esta disposición también será de aplicación a las personas jurídicas mencionadas en el artículo L. 612-1 y a las asociaciones mencionadas en el artículo L. 612-4 a partir del momento en que hacen llamamiento a la generosidad pública.
Artículo L.822-15 (Ley nº 2003-706 de 1 de agosto de 2003 art. 104 II Diario Oficial de 2 de agosto de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 162 V Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No obstante las disposiciones del artículo L.225-40 y las disposiciones legales particulares, los auditores de cuentas, así como sus colaboradores y peritos, estarán obligados a guardar secreto profesional sobre los hechos, actos e informaciones de los que hubieran tenido conocimiento en razón al ejercicio de sus funciones. No obstante, quedarán liberados de la obligación de guardar secreto profesional cuando declaren ante el presidente del Tribunal de Commerce o del Tribunal de Grande Instance en aplicación del capítulo IV del título III del libro II o del capítulo II del título I del libro VI.
Cuando una persona jurídica presente las cuentas consolidadas, los auditores de cuentas de la persona jurídica consolidante y los auditores de cuentas de las personas consolidadas serán liberados de su obligación de guardar secreto profesional unos con relación a los otros. Estas disposiciones serán también de aplicación cuando una persona presente cuentas combinadas.
Artículo L822-16 (Introducido por la Ley nº 2003-706 de 1 de agosto de 2001 Artículo 104 II Diario Oficial de 2 de agosto de 2003)
Un decreto adoptado en Conseil d'Etat aprobará un Código deontológico para la profesión, previo dictamen del Alto Consejo de auditoría de cuentas y, para las disposiciones que se aplican a los auditores de cuentas que intervienen en las personas que hacen un llamamiento público al ahorro, de la Autoridad de mercados financieros.
LIBRO IX DISPOSICIONES RELATIVAS A LOS DEPARTAMENTOS DE ULTRAMAR Artículos L911-1 a
L950-7 TITULO I DISPOSICIONES ESPECÍFICAS PARA SAINT-PIERRE-ET-MIQUELON Artículos L911-1 a
L910-5
Artículo L.910-1 (Disposición nº 2004-328 de 15 de abril de 2004 art. 8 Diario Oficial de 17 de abril de 2004) (Ley nº 2004-1343 de 9 de diciembre de 2004 art. 78 XIX Diario Oficial de 10 de diciembre de 2004) (Ley nº 2005-842 de 26 de julio de 2005 art. 11 III Diario Oficial de 27 de julio de 2005)
Los siguientes artículos no serán de aplicación en Saint-Pierre-et-Miquelon: 1º L.125-3, L.126-1; 2º L.225-245-1, L.229-1 a L.229-15, L.238-6, L.244-5 y L.252-1 a L.252-13; 3º L.470-6; 2º L.522-1 a L.522-40 y L.524-20; 5º L.711-5, L.711-9, L.713-6 a L.713-10, L.713-11 a L.713-17 en lo concerniente a los delegados de las cámaras
profesionales; L.720-1 a L.730-17.
Artículo L910-2 Para la aplicación del presente Código en Saint-Pierre-et-Miquelon, los términos enumerados a continuación
deberán ser sustituidos del siguiente modo: 1º"Tribunal de grande instance " o "Tribunal d'instance" por "Tribunal de première instance"; 2º "Tribunal de commerce" o "Justicia consular" por "Tribunal de première instance competente en materia
mercantil"; 3º "departamento" o "circunscripción" por "Entidad territorial" 4º "Boletín oficial de anuncios civiles y comerciales" por "Recopilatorio de actas administrativas de la Entidad
territorial".
Artículo L910-3 Las referencias hechas por disposiciones del presente Código aplicables a Saint-Pierre-et-Miquelon a otros
artículos del presente Código sólo afectarán a los artículos aplicables a dicha Entidad territorial con las adaptaciones previstas en los capítulos siguientes.
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CÓDIGO DE COMERCIO Artículo L910-4
A falta de adaptación, las referencias hechas por disposiciones del presente Código aplicables a Saint-Pierre-et-Miquelon a disposiciones que no sean aplicables allí, serán sustituidas por las referencias a las disposiciones que tengan el mismo objeto y sean de aplicación local.
Artículo L910-5 Los artículos que hagan referencia a la Comunidad Europea serán aplicables respetando la decisión de asociación
prevista en el artículo 136 del Tratado Constitutivo de la Comunidad Europea. No serán aplicables las referencias al acuerdo sobre el Espacio Económico Europeo.
CAPITULO I Disposiciones de adaptación del libro I Artículos L911-1 a
L911-14
Artículo L911-1 (Disposición nº 2004-279 de 25 de marzo de 2004 Artículo 6 Diario Oficial de 27 de marzo de 2004)
En el artículo L. 122-1, las palabras: "por el Prefecto del departamento en el que prevé ejercer su actividad por primera vez" serán sustituidas por las palabras: "por el Prefecto de la Entidad territorial en el caso de que el extranjero deba ejercer allí por primera vez su actividad".
Artículo L911-2 Las excepciones previstas por los artículos L. 123-25 a L. 123-27 se aplicarán a las personas físicas sujetas a un
régimen impositivo simplificado por la normativa vigente en Saint-Pierre-et-Miquelon.
Artículo L911-3 En el artículo L. 133-7, las palabras: "los derechos, tasas, gastos y multas de aduana vinculados a una operación
de transporte".
Artículo L911-4 La inscripción en la secretaría del Tribuna de Primera Instancia competente en materia mercantil dispensará del
requisito formal del registro de las actas y declaraciones que estaban sujetas a ello en aplicación del artículo L. 141-5.
Artículo L911-5 Para la aplicación de los artículos L. 141-15, L. 143-7 y L. 145-28, el presidente podrá delegar en un magistrado del
Tribuna de Primera Instancia.
Artículo L911-6 En el artículo L. 141-13, las palabras: "por los artículos 638 y 653 del Código General de Impuestos" serán
sustituidas por las palabras: "por las disposiciones del derecho fiscal localmente aplicables".
Artículo L911-7 En el artículo L. 144-5, las palabras: "los artículos L. 3211-2 y L. 3212-1 a L. 3212-12 del Código de la Salud
Pública" serán sustituidas por las palabras: "los artículos del Código de la Salud Pública localmente aplicable relativos a la hospitalización e internamiento con o sin consentimiento del interesado".
Artículo L911-8 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
El artículo L. 145-2 quedará redactado del modo siguiente: I. - En el apartado 4º, las palabras: "al Estado, a los departamentos, a los Ayuntamientos, a las entidades públicas"
serán sustituidas por las palabras: "al Estado, a las Entidades Territoriales y a las entidades públicas"; II. - En el apartado 6º, las palabras: "en la Caja de Seguridad Social de la Casa de los artistas y autores
reconocidos de obras gráficas y plásticas, tal y como son definidos por el artículo 71 del anexo III del Código General de Impuestos" serán sustituidas por las palabras: "en la Caja Local de Seguridad Social y reconocidos autores de obras gráficas y plásticas en el sentido del Código de impuestos aplicable localmente".
Artículo L911-9 Para la aplicación del artículo L. 145-6, las palabras: "la evacuación de los locales incluidos en un sector o
perímetro previsto en los artículos L. 313-3 y L. 313-4 del Código de Urbanismo" serán sustituidas por las palabras: "la evacuación de los locales prevista en el artículo L. 145-
Artículo L911-10 En el artículo L. 145-13, las palabras: "no obstante las disposiciones de la Ley de 28 de mayo de 1943 relativa a la
aplicación a los extranjeros de las leyes en materia de arrendamientos de inmuebles y arrendamientos rústicos".
Artículo L911-11 El párrafo segundo del artículo L. 145-18 quedará redactado del modo siguiente: "Lo mismo ocurrirá para efectuar operaciones de restauración inmobiliarias que conlleven obras de rehabilitación,
de conservación, de modernización o de demolición que tengan como consecuencia la transformación de las condiciones de habitabilidad de un conjunto de inmuebles que necesiten la evacuación de los locales. Estas operaciones podrán ser decididas y ejecutadas respetando la normativa vigente, por las autoridades públicas localmente competentes o por iniciativa de uno o varios propietarios, unidos o no en asociación sindical. En este último
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CÓDIGO DE COMERCIO caso, el o los propietarios estarán especialmente autorizados para ello en las condiciones determinadas por el representante del Estado, que determinará sobre todo los compromisos exigidos a los propietarios en cuanto a la naturaleza y a la importancia de las obras. Los inmuebles adquiridos por un organismo de renovación sólo podrán ser cedidos según lo libremente acordado ateniéndose a un pliego de condiciones tipo aprobado por el representante del Estado. "
Artículo L911-12 En el artículo L. 145-26, tras las palabras: "al Estado, a los departamentos, a los Ayuntamientos", se añadirán las
palabras: "a la Entidad territorial".
Artículo L911-13 El primer párrafo del artículo L. 145-34 quedará redactado del modo siguiente: "Salvo que haya una modificación notable de los elementos que afecten al valor de arrendamiento del local, el
índice de variación del alquiler aplicable en el momento de renovar el contrato no podrá exceder de la variación sufrida por el índice nacional trimestral que mide el coste de la construcción desde la determinación inicial del contrato de arrendamiento expirado, si su duración no fuese superior a nueve años. Este índice se calculará en las condiciones establecidas por una orden del representante del Estado. A falta de dicha cláusula contractual que fije el trimestre de referencia de este índice, se tendrá en cuenta una variación del índice local trimestral que mide el coste de la construcción determinado a este efecto por la orden antes citada. "
Artículo L911-14 El artículo L. 145-35 quedará redactado del modo siguiente: I. - En el primer párrafo, las palabras: "departamental" queda suprimida; II. - El último párrafo quedará redactado del modo siguiente: "La composición de la comisión, el modo de nombramiento de sus miembros y sus normas de funcionamiento
serán determinadas por una orden del representante del Estado". "
CAPITULO II Disposiciones de adaptación del libro II Artículos L912-1 a
L912-6
Artículo L912-1 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 46 Diario Oficial de 27 de marzo de 2004)
En los artículos L. 223-18 y L. 225-36 y L. 225-65, las palabras: "en el mismo departamento o en un departamento limítrofe" serán sustituidas por las palabras: "en la Entidad territorial".
Artículo L912-2 Se suprimirán el último párrafo del artículo L. 225-43 y el del artículo L. 225-91.
Artículo L912-3 En el párrafo segundo del artículo L. 225-102, se suprimirán las palabras: "así como por los trabajadores de una
sociedad cooperativa obrera de producción en el sentido de la Ley nº 78-763 de 19 de julio de 1978 relativa al estatuto de sociedades cooperativas obreras de producción".
Artículo L912-4 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 59 Diario Oficial de 26 de junio de 2004)
En el apartado 5º del artículo L. 225-115, las palabras: "pagos realizados en aplicación de los apartados 1 y 4 del artículo 238 bis del Código General de Impuestos" serán sustituidas por las palabras: "deducciones fiscales previstas por las disposiciones del Código de Impuestos localmente aplicables relativas al total de deducciones del importe de los beneficios imponibles de las sociedades que realicen pagos en beneficio de obras de organismos de interés general, o de sociedades autorizadas o donaciones de obras de arte al Estado".
Artículo L912-6 En el punto VI del artículo L. 225-270, las palabras: "las disposiciones del artículo 94 A del Código General de
Impuestos" serán sustituidas por las palabras: "las disposiciones del Código de los Impuestos localmente aplicable relativas a los beneficios netos en capital realizados por la cesión a título oneroso de valores mobiliarios y de derechos sociales".
CAPITULO III Disposiciones de adaptación del libro III Artículo L913-1
Artículo L913-1 El párrafo segundo del artículo L. 322-9 quedará redactado del modo siguiente: "Se someterán a las disposiciones prescritas por el Código de Impuestos localmente aplicable relativas a las ventas
públicas y en subasta". "
CAPITULO IV Disposiciones de adaptación del libro IV Artículos L914-1 a
L914-2
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CÓDIGO DE COMERCIO Artículo L914-1
En el párrafo segundo del artículo L. 442-2, antes de las palabras: "tasas sobre el volumen de negocio", se añadirá la palabra: "eventuales".
Artículo L914-2 El artículo L. 443-1 quedará redactado del modo siguiente: I. - En el apartado 3º, las palabras: "en el artículo 403 del Código General de Impuestos" serán sustituidas por las
palabras: "por las disposiciones del Código de Impuestos localmente aplicable". II. - El apartado 4º quedará redactado del modo siguiente: "4º A setenta y cinco días tras el día de la entrega para las compras de las bebidas alcohólicas sujetas a derechos
de circulación previstos por el Código de Impuestos localmente aplicable". "
CAPITULO V Disposiciones de adaptación del libro V Artículos L915-1 a
L915-5
Artículo L915-1 El párrafo segundo del artículo L. 511-62 quedará redactado del modo siguiente: "La letra de resaca incluirá las cantidades indicadas en los artículos L. 511-45 y L. 511-46, además de los derechos
de corretaje y de timbre eventualmente previstos por las disposiciones del Código de Impuestos localmente aplicable". "
Artículo L915-2 El primer párrafo del artículo L. 524-19 quedará redactado del modo siguiente: "El importe de los derechos a percibir por el secretario del Tribunal de Primera Instancia competente en materia
mercantil será fijada por decreto". "
Artículo L915-3 En el primer párrafo del artículo L. 525-2, tras las palabras "por el impuesto mínimo alzado", se añadirán las
palabras: "según las condiciones vigentes localmente".
Artículo L915-4 En el punto II del artículo L. 525-9, las palabras: "al privilegio citados en el artículo L. 243-4 del Código de la
Seguridad Social" serán sustituidas por las palabras: "al privilegio organizado en beneficio de la caja de previsión social de la Entidad territorial".
Artículo L915-5 El artículo L. 525-18 quedará redactado del modo siguiente: I. - En el apartado 1º, la referencia al decreto nº 53-968 de 30 de septiembre de 1953 será sustituida por la
referencia nº 55-639 del 20 de mayo de 1955. II. - El apartado 2º quedará redactado del modo siguiente: "2º Los buques de mar". "
CAPITULO VI Disposiciones de adaptación del libro VI Artículo L916-1
Artículo L.916-1 (introducido por la Ley nº 2005-845 de 26 de julio de 2005 art. 193 I Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No será de aplicación en Saint-Pierre-et-Miquelon el apartado 4° del punto III del artículo L.643-11.
CAPITULO VII Disposiciones de aplicación del libro VII Artículos L917-1 a
L917-4
Artículo L917-1 En los artículos L. 711-2 y L. 711-4, la palabra: "Gobierno" será sustituida por las palabras: "representante del
Estado en la Entidad territorial".
Artículo L917-2 En el párrafo tercero del artículo L. 711-6, las palabras: "o el Ayuntamiento" serán sustituidas por las palabras: "el
Ayuntamiento o la Entidad territorial".
Artículo L917-3 En el artículo L. 711-7, las palabras: "en el sentido y para la aplicación del artículo L. 961-10 del Código de
Trabajo".
Artículo L917-4 En el artículo L. 712-1, las palabras: "por medio de una tasa adicional a la tasa profesional" serán sustituidas por
las palabras: "como se establece en las disposiciones del Código de Impuestos aplicable en la Entidad territorial".
TITULO II
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CÓDIGO DE COMERCIO DISPOSICIONES APLICABLES A MAYOTTE Artículos L921-1 a
L920-7
Artículo L.920-1 (Ley nº 2003-710 de 1 de agosto de 2003 art. 38 II Diario Oficial de 2 de agosto de 2003) (Disposición nº 2005-43 de 20 de enero de 2005 art. 3 I Diario Oficial de 22 de enero de 2005, con entrada en vigor el 1 de enero de 2002) (Ley nº 2005-842 de 26 de julio de 2005 art. 11 III Diario Oficial de 27 de julio de 2005)
No obstante las adaptaciones previstas en los capítulos posteriores, las disposiciones siguientes del presente Código serán aplicables en Mayotte:
1º El libro I, salvo los artículos L.125-3, L.126-1; 2º El libro II, salvo los artículos L.225-245-1, L.229-1 a L.229-15, L.238-6, L.244-5 y L.252-1 a L.252-13; 3º El libro III, salvo los artículos L.321-1 a L.321-38; 4º El libro IV, salvo los artículos L.441-1, L.442-1 y L.470-6; 5º El libro V, salvo los artículos L.522-1 a L.522-40, L.524-12, L.524-20 y L.524-21; 6º El libro VI, excluyendo los artículos L.622-19, L.625-9 y L.670-1 a L.670-8; 7º El título I del libro VII, salvo los artículos L.711-5 y L.712-1 y las disposiciones relativas a los delegados de las
cámaras profesionales; 8º El libro VIII.
Artículo L920-2 Para la aplicación del presente Código en la Entidad territorial de Mayotte, los términos enumerados a continuación
serán sustituidos de la siguiente manera: 1º"Tribunal de grande instance " o "Tribunal d'instance" por "Tribunal de première instance"; 2º "Tribunal de commerce" o "Justicia consular" por "Tribunal de grande instance competente en materia mercantil"; 3º "Conseil des prud'hommes" por "Tribunal du travail" 3º "departamento" o "circunscripción" por "Entidad territorial" 4º "Boletín oficial de anuncios civiles y comerciales" por "Recopilatorio de actas administrativas de la Entidad
territorial".
Artículo L920-3 Las referencias hechas a otros artículos del presente Código, por disposiciones del presente Código aplicables en
Mayotte, sólo afectarán a los artículos aplicables en la Entidad territorial con las adaptaciones previstas en los capítulos siguientes.
Artículo L920-4 A falta de adaptación, las referencias hechas por disposiciones del presente Código aplicables en Mayotte, a
disposiciones que no sean aplicables se sustituirán por referencias a las disposiciones que tengan el mismo objeto aplicables localmente.
Artículo L920-5 Las referencias hechas por disposiciones del presente Código aplicables en Mayotte a disposiciones del Código de
Trabajo sólo serán aplicables allí si existiese una disposición localmente aplicable con el mismo fin.
Artículo L920-7 Los artículos que hagan referencia a la Comunidad Europea serán aplicables respetando la decisión de asociación
prevista en el artículo 136 del Tratado Constitutivo de la Comunidad Europea. No serán aplicables las referencias al acuerdo sobre el Espacio Económico Europeo.
CAPITULO I Disposiciones de adaptación del libro I Artículos L921-1 a
L921-14
Artículo L921-1 (Disposición nº 2004-279 de 25 de marzo de 2004 Artículo 7 Diario Oficial de 27 de marzo de 2004)
En el artículo L. 122-1, las palabras: "por el Prefecto del departamento en el que prevé ejercer su actividad por primera vez" serán sustituidas por las palabras: "por el Prefecto de Mayotte en el caso de que el extranjero deba ejercer allí por primera vez su actividad".
Artículo L921-2 Las excepciones a las disposiciones de los artículos L. 123-25 a L. 123-27 serán aplicables a las personas físicas
sujetas a un régimen impositivo simplificado según la normativa vigente en Mayotte.
Artículo L921-3 En el artículo L. 133-6, las palabras: "las que tienen su origen en las disposiciones del artículo 1269 del nuevo
Código de Proceso Civil" serán sustituidas por las palabras: "las solicitudes de revisión de cuenta y de liquidación de los resultados presentadas para subsanar un error, una omisión o una presentación inexacta".
Artículo L921-4
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CÓDIGO DE COMERCIO En el artículo L. 133-7, las palabras: "los derechos, tasas, gastos y multas de aduana vinculados a una operación
de transporte".
Artículo L921-5 Para la aplicación de los artículos L. 141-15, L. 143-7, L. 144-1 a L. 144-13 y L. 145-28, el presidente podrá delegar
en un magistrado del Tribunal de Primera Instancia.
Artículo L921-6 En el artículo L. 141-13, las palabras: "de la declaración prescrita por los artículos 638 y 653 del Código General de
Impuestos" serán sustituidas por las palabras: "de la declaración prescrita en las condiciones establecidas por las disposiciones del Código de Impuestos aplicable en la Entidad territorial".
Artículo L921-7 En el artículo L. 144-5, las palabras: "los artículos L. 3211-2 y L. 3212-1 a L. 3212-12 del Código de la Salud
Pública" serán sustituidas por las palabras: "los artículos del Código de la Salud Pública aplicable en la Entidad territorial relativos a la hospitalización y al internamiento con o sin consentimiento del interesado".
Artículo L921-8 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
El artículo L. 145-2 quedará redactado del modo siguiente: I. - En el apartado 4º, las palabras: "al Estado, a los departamentos, a los Ayuntamientos, a las entidades públicas"
serán sustituidas por las palabras: "al Estado, a las Entidades Territoriales y a los establecimientos públicos". II. - En el apartado 6º, las palabras: "en la Caja de Seguridad Social de la Casa de los artistas y autores
reconocidos de obras gráficas y plásticas, tal y como son definidos por el artículo 71 del anexo III del Código General de Impuestos" serán sustituidas por las palabras: "en la Caja Local de Seguridad Social y reconocidos autores de obras gráficas y plásticas en el sentido del Código de impuestos aplicable en la Entidad territorial".
Artículo L921-9 Para la aplicación del artículo L. 145-6, las palabras: "la evacuación de los locales incluidos en un sector o
perímetro previsto en los artículos L. 313-3 y L. 313-4 del Código de Urbanismo" serán sustituidas por las palabras: "la evacuación de los locales prevista en el artículo L. 145-
Artículo L921-10 En el artículo L. 145-13, las palabras: "no obstante las disposiciones de la Ley de 28 de mayo de 1943 relativa a la
aplicación a los extranjeros de las leyes en materia de arrendamientos de inmuebles y arrendamientos rústicos".
Artículo L921-11 El párrafo segundo del artículo L. 145-18 quedará redactado del modo siguiente: "Lo mismo ocurrirá para efectuar operaciones de restauración inmobiliarias que conlleven obras de rehabilitación,
de conservación, de modernización o de demolición que tengan como consecuencia la transformación de las condiciones de habitabilidad de un conjunto de inmuebles que necesiten la evacuación de los locales. Estas operaciones podrán ser decididas y ejecutadas respetando la normativa vigente, por las autoridades públicas localmente competentes o por iniciativa de uno o varios propietarios, unidos o no en asociación sindical. En este último caso, el o los propietarios estarán especialmente autorizados para ello en las condiciones determinadas por el representante del Estado, que determinará sobre todo los compromisos exigidos a los propietarios en cuanto a la naturaleza y a la importancia de las obras. Los inmuebles adquiridos por un organismo de renovación sólo podrán ser cedidos según lo libremente acordado ateniéndose a un pliego de condiciones tipo aprobado por el representante del Estado. "
Artículo L921-12 En el artículo L. 145-26, tras las palabras: "al Estado, a los departamentos, a los Ayuntamientos", se añadirán las
palabras: "a la Entidad territorial".
Artículo L921-13 El primer párrafo del artículo L. 145-34 quedará redactado del modo siguiente: "Salvo que haya una modificación notable de los elementos que afecten al valor de arrendamiento del local, el
índice de variación del alquiler aplicable en el momento de renovar el contrato no podrá exceder de la variación sufrida por el índice nacional trimestral que mide el coste de la construcción desde la determinación inicial del contrato de arrendamiento expirado, si su duración no fuese superior a nueve años. Este índice se calculará en las condiciones establecidas por una orden del representante del Estado. A falta de dicha cláusula contractual que fije el trimestre de referencia de este índice, se tendrá en cuenta una variación del índice local trimestral que mide el coste de la construcción determinado a este efecto por la orden antes citada. "
Artículo L921-14 El artículo L. 145-35 quedará redactado del modo siguiente: I. - En el primer párrafo, las palabras: "departamental" queda suprimida; II. - El último párrafo quedará redactado del modo siguiente: "La composición de la comisión, el modo de nombramiento de sus miembros y sus normas de funcionamiento
serán determinadas por una orden del representante del Estado". "
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CÓDIGO DE COMERCIO CAPITULO II Disposiciones de adaptación del libro II Artículos L922-1 a
L922-10
Artículo L922-1 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 56 Diario Oficial de 26 de junio de 2004)
En los artículos L. 225-177 y L. 225-179 y L. 233-11, las palabras: "la fecha de publicación de la Ley nº 2001-420 de 15 de mayo de 2001" serán sustituidas por las palabras: "la fecha de publicación de la disposición nº 2004-604 de 24 de junio de 2004 relativa a la reforma del régimen de valores mobiliarios emitidos por las sociedades comerciales y la aplicación a los territorios de Ultramar de las disposiciones de modificación de la legislación comercial".
Artículo L922-2 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 47 III Diario Oficial de 27 de marzo de 2004)
En los artículos L. 223-18 y L. 225-36 y L. 225-65, las palabras: "en el mismo departamento o en un departamento limítrofe" serán sustituidas por las palabras: "en la Entidad territorial".
Artículo L922-3 Se suprimirán el último párrafo del artículo L. 225-43 y el del artículo L. 225-91.
Artículo L922-4 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 60 Diario Oficial de 26 de junio de 2004)
En el apartado 5º del artículo L. 225-115, las palabras: "pagos realizados en aplicación de los apartados 1 y 4 del artículo 238 bis del Código General de Impuestos" serán sustituidas por las palabras: "deducciones fiscales previstas por las disposiciones de derecho fiscal aplicables en la Entidad territorial y relativas al total de las deducciones del importe de los beneficios imponibles de las sociedades que desembolsen cantidades en beneficio de obras de organismos de interés general o de sociedades autorizadas o donaciones de obras de arte al Estado".
Artículo L922-5 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 56 Diario Oficial de 26 de junio de 2004)
En los artículos L. 225-105 y L. 225-230 y L. 225-231, las palabras: "el comité de empresa" serán sustituidas por las palabras: "los delegados del personal".
Artículo L922-6 En los artículos L. 225-231, L. 232-3, L. 232-4, L. 234-1 y L. 234-2, las palabras: "al comité de empresa" serán
sustituidas por las palabras: "a los delegados del personal".
Artículo L922-7 En el punto VI del artículo L. 225-270, las palabras: "las disposiciones del artículo 94 A del Código General de
Impuestos" serán sustituidas por las palabras: "las disposiciones del Código de Impuestos aplicables en la Entidad territorial relativas a los beneficios netos en capital realizados por la cesión a título oneroso de valores mobiliarios y de derechos sociales".
Artículo L922-8 Quedará suprimido el último párrafo del artículo L. 228-36.
Artículo L922-9 En el artículo L. 233-24, las palabras: "o del punto VII del artículo 97" quedarán suprimidas.
Artículo L922-10 Quedará suprimido el párrafo segundo del artículo L. 251-7.
CAPITULO III Disposiciones de adaptación del libro III Artículos L923-1 a
L923-2
Artículo L923-1 En el artículo L. 322-1, las palabras: "en los artículos 53 de la Ley nº 91-650 de 9 de julio de 1991 relativa a la
reforma del procedimiento de ejecución y 945 del Código de Proceso Civil" serán sustituidas por las palabras: "en las disposiciones de procedimiento civil vigentes aplicables en la Entidad territorial relativas a la venta de bienes muebles procedentes de una herencia".
Artículo L923-2 El párrafo segundo del artículo L. 322-9 quedará redactado del modo siguiente: "Se sujetarán a las disposiciones prescritas por el Código de Impuestos aplicable en la Entidad territorial relativas a
las ventas públicas y en subasta". "
CAPITULO IV Disposiciones de adaptación del libro IV Artículos L924-1 a
L924-6
Artículo L924-1
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CÓDIGO DE COMERCIO (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004) (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004)
En el primer párrafo del artículo L. 430-2, la palabra: "tres" será sustituida por la palabra: "dos". Se suprimirán los apartados cuarto y quinto de este artículo.
Artículo L924-2 (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004) (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004)
En el artículo L. 430-3, se suprimirá la última frase del primer párrafo. En el tercer párrafo del mismo artículo, las palabras: ", o la remisión total o parcial de una operación de dimensión comunitaria" serán suprimidos.
Artículo L924-3 (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004) (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004)
El último párrafo del artículo L. 441-2 será sustituido por cuatro párrafos redactados del siguiente modo: "El juez de instrucción o el Tribunal incoado para estas diligencias podrá ordenar que cese la publicidad, realizada
en condiciones no conformes a las disposiciones del párrafo 1, por requerimiento del Ministerio Público o de oficio. La medida tomada de este modo será ejecutoria pese a que puedan interponerse recursos.
La jurisdicción que haya ordenado el embargo o que haya sido encargada del asunto podrá ordenar su levantamiento. La medida dejará de tener efecto en caso de sobreseimiento o de absolución.
Las resoluciones que resuelvan las solicitudes de embargo podrán ser objeto de un recurso ante el Tribunal Superior de Apelación si hubieran sido acordadas por un juez de instrucción o por el Tribunal incoado para las diligencias.
El Tribunal Superior de Apelación resolverá en un plazo de diez días contados a partir de la fecha de recepción de los documentos."
Artículo L924-4 (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004) (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004)
En el párrafo segundo del artículo L. 442-2, antes de las palabras: "tasas sobre el volumen de negocio", se añadirá la palabra: "tasas sobre la facturación";
Artículo L924-5 (introducido por la Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004)
El último párrafo del artículo L. 442-3 será sustituido por cuatro párrafos redactados del siguiente modo: "El juez de instrucción o el Tribunal encargado de las diligencias podrá ordenar la interrupción del anuncio
publicitario, o bien por requerimiento del Ministerio Público o de oficio. La medida tomada de este modo será ejecutoria pese a que puedan interponerse recursos.
La jurisdicción que haya ordenado el embargo o que haya sido encargada del asunto podrá ordenar su levantamiento. La medida dejará de tener efecto en caso de sobreseimiento o de absolución.
Las resoluciones que resuelvan sobre las solicitudes de embargo podrán ser objeto de un recurso ante el Tribunal Superior de Apelación.
El Tribunal Superior de Apelación resolverá en un plazo de diez días contados a partir de la fecha de recepción de los documentos." "
Artículo L924-6 (introducido por la Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 Diario Oficial de 21 de agosto de 2004)
El artículo L. 443-1 quedará redactado del modo siguiente: I. - En el apartado 1º, las palabras: "citados en los artículos L. 326-1 a L. 326-3 del Código Rural" serán sustituidas
por las palabras: "previstos por las disposiciones del Código Rural aplicable en la Entidad territorial"; II. - En el apartado 3º, las palabras: "en el artículo 403 del Código General de Impuestos" serán sustituidas por las
palabras: "por las disposiciones del Código de Impuestos aplicable en la Entidad territorial"; III. - El apartado 4º quedará redactado del modo siguiente: "4º A setenta y cinco días después del día de la entrega para las compras de bebidas alcohólicas sujetas a
derechos de circulación previstos por el Código de Impuestos aplicable en la Entidad territorial." "
CAPITULO V Disposiciones de adaptación del libro V Artículos L925-1 a
L925-6
Artículo L925-1 El párrafo segundo del artículo L. 511-62 quedará redactado del modo siguiente: "La letra de resaca incluirá las cantidades indicadas en los artículos L. 511-45 y L. 511-46, además de los derechos
de corretaje y de timbre eventualmente previstos por las disposiciones aplicables en la Entidad territorial". "
Artículo L925-2 En los artículos L. 523-8 y L. 524-6, las palabras: "Artículos 1426 al 1429 del nuevo Código de Proceso Civil" serán
sustituidas por las palabras: "disposiciones de procedimiento civil aplicables localmente relativas a las ofertas de pago y
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CÓDIGO DE COMERCIO a la consignación".
Artículo L925-3 El primer párrafo del artículo L. 524-19 quedará redactado del modo siguiente: "El importe de los derechos a percibir por el secretario del Tribunal de Primera Instancia competente en materia
mercantil será fijada por decreto". "
Artículo L925-4 En el primer párrafo del artículo L. 525-2, tras las palabras: "al impuesto mínimo alzado" se añadirán las palabras:
"según las modalidades vigentes en la Entidad territorial".
Artículo L925-5 En el punto II del artículo L. 525-9, las palabras: "al privilegio citado en el artículo L. 243-4 del Código de la
Seguridad Social" serán sustituidas por las palabras: "al privilegio organizado en beneficio de la caja de previsión social de la Entidad territorial".
Artículo L925-6 El artículo L. 525-18 quedará redactado del modo siguiente: I. - En el apartado 1º, la referencia al decreto nº 53-968 de 30 de septiembre de 1953 será sustituida por la
referencia nº 55-639 del 20 de mayo de 1955. II. - El apartado 2º quedará redactado del modo siguiente: "2º Los buques de mar así como las embarcaciones de navegación fluvial". "
CAPITULO VI Disposiciones de adaptación del libro VI Artículos L926-1 a
L927-1
Artículo L.926-1 (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el artículo L.625-2 las palabras: "mencionada en el artículo L.432-7 del Código de Trabajo" serán sustituidas por las palabras: "con relación a las informaciones que tuvieran un carácter confidencial y hayan sido presentadas como tales".
Artículo L.926-2 (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación del artículo L.622-24, les organismos citados en el artículo L.351-21 del Código de Trabajo serán los organismos locales que se encarguen del servicio de la prestación del seguro de desempleo y del cobro de las contribuciones.
Artículo L.926-3 (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación de los artículos L.622-24, L.622-26, L.626-5, L.626-7, L.626-20, L.625-3, L.625-4 y L.662-4, las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo serán las instituciones locales encargadas de la aplicación del régimen de seguros contra el riesgo de impago de los salarios, en caso de procedimiento de saneamiento judicial o de liquidación judicial.
Artículo L.926-4 (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación del artículo L.626-5 a L.626-7, las instituciones reguladas por el libro IX del Código de la Seguridad Social serán las instituciones locales de jubilación complementaria o suplementaria o de previsión previstas por las disposiciones aplicables en la entidad territorial y relativas a los regímenes de seguridad y protección sociales.
Artículo L.926-5 (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
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CÓDIGO DE COMERCIO En el artículo L.626-14, la referencia al artículo 28 del Decreto nº 55-22 de 4 de enero de 1955 relativo a la reforma
de la publicidad inmobiliaria será sustituida por la referencia a las disposiciones aplicables en la entidad territorial y relativas a la publicidad de los derechos sobre los inmuebles que no sean ni privilegios ni hipotecas.
Artículo L.926-6 (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el artículo L.642-1, la obligación para el Tribunal de tener en cuenta las disposiciones contenidas en los apartados 1º, 2º, 3º y 4º del artículo L.331-3 del Código Rural se referirá a los siguientes requisitos:
"Observar el orden de prioridades establecido entre la instalación de los jóvenes agricultores y la ampliación de las explotaciones, teniendo en cuenta el interés económico y social del mantenimiento de la autonomía de la explotación objeto de la solicitud;
En caso de ampliación o de reunión de explotaciones, tener en cuenta las posibilidades de instalación en una explotación viable, la situación de las tierras en cuestión con relación a la sede de la explotación del o de los solicitantes, la superficie de los bienes que sean objeto de la solicitud y de las superficies ya aprovechadas por el o los solicitantes, así como por el arrendatario actual;
Considerar la situación personal del o de los solicitantes: edad, situación familiar y profesional y, en su caso, la del arrendatario actual, así como el número y la naturaleza de los puestos de trabajo asalariados en juego;
Tener en cuenta la estructura parcelaria de las explotaciones en cuestión, tanto con relación a la sede de la explotación, como para evitar que determinados cambios en la posesión puedan cuestionar los acondicionamientos obtenidos con ayuda de fondos públicos".
Artículo L.926-7 (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 194 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No será de aplicación el apartado 4° del punto III del artículo L.643-11.
Artículo L.927-1 (introducido por la Disposición nº 2005-43 de 20 de enero de 2005 art. 3III Diario Oficial de 22 de enero de 2005, con entrada en vigor el 1 de febrero de 2005)
Para la aplicación en Mayotte del artículo L.711-6, el representante del Estado en Mayotte estará habilitado a conceder a la Cámara de Comercio e Industria de Mayotte la autorización prevista en este artículo, por delegación permanente del Ministro encargado de la tutela de las Cámaras de Comercio e Industria.
TITULO III DISPOSICIONES APLICABLES EN NUEVA CALEDONIA Artículos L931-1 a
L930-7
Artículo L.930-1 (Ley nº 2003-706 de 1 de agosto de 2003 art. 116 Diario Oficial de 2 de agosto de 2003) (Ley nº 2003-710 de 1 de agosto de 2003 art. 38 II Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 art. 57 III Diario Oficial de 26 de junio de 2004) (Ley nº 2005-842 de 26 de julio de 2005 art. 11 III Diario Oficial de 27 de julio de 2005) (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Sin perjuicio de las adaptaciones previstas en los siguientes capítulos, las disposiciones enumeradas a continuación serán aplicables en Nueva Caledonia:
1º El libro I, salvo los artículos L.124-1 a L.126-1, L.131-1 a L.131-6, L.131-9, L.134-1 a L.134-17, L.145-34 a L.145-36, L.145-38 y L.145-39;
2º El libro II, salvo los artículos L.225-245-1, L.229-1 a L.229-15, L.238-6, L.244-5 y L.252-1 a L.252-13; 3º El libro III, salvo los artículos L.310-4, L.321-1 a L.321-38, L.322-7 y L.322-10; 4º El libro V, salvo los artículos L.522-1 a L.522-40, L.524-12, L.524-20 y L.524-21; 5º El libro VI, salvo los artículos L.622-19, L.625-9 y L.670-1 a L.670-8; 6º El título II del libro VIII.
Artículo L930-2 Para la aplicación del presente código en el territorio, los términos enumerados a continuación serán sustituidos del
modo siguiente: 1º"Tribunal de grande instance " o "Tribunal d'instance" por "Tribunal de première instance"; 2º "Tribunal de commerce" o "Justicia consular" por "Tribunal mixto de comercio"; 3º "Conseil de prud'hommes" por "Tribunal du travail" 4º "Boletín oficial de anuncios civiles y comerciales" por "Diario Oficial de Nueva Caledonia"; 5º "departamento" o "circunscripción" por "Nueva Caledonia" o por "provincia";
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CÓDIGO DE COMERCIO 6º "Prefecto" o "Subprefecto" por "representante del Estado en Nueva Caledonia".
Artículo L930-3 Las referencias hechas por disposiciones del presente Código aplicables en Nueva Caledonia a otros artículos del
presente Código, sólo afectarán a los artículos convertidos en aplicables en Nueva Caledonia debido a las adaptaciones previstas en los capítulos siguientes.
Artículo L930-4 A falta de adaptación, las referencias hechas por disposiciones del presente Código aplicables en Nueva
Caledonia, a disposiciones que no puedan ser aplicables allí, serán sustituidas por las referencias a las disposiciones que tengan el mismo objeto y que sean localmente aplicables.
Artículo L930-5 Las referencias hechas por disposiciones del presente Código aplicables en Nueva Caledonia a disposiciones del
Código de Trabajo sólo serán aplicables allí si existe una disposición aplicable localmente que tenga el mismo objeto.
Artículo L930-6 Las referencias a la inscripción en el Registro Central de Artesanos serán sustituidas por las referencias a la
inscripción realizada en conformidad a la normativa aplicable en Nueva Caledonia.
Artículo L930-7 Los artículos que hagan referencia a la Comunidad Europea serán aplicables respetando la decisión de asociación
prevista en el artículo 136 del Tratado Constitutivo de la Comunidad Europea. No serán aplicables las referencias al acuerdo sobre el Espacio Económico Europeo.
CAPITULO I Disposiciones de adaptación del libro I Artículos L931-1 a
L931-19
Artículo L931-1 En el artículo L. 122-1, las palabras: "El Prefecto del departamento en el que el extranjero deberá ejercer su
actividad" serán sustituidas por las palabras: "la autoridad competente de Nueva Caledonia".
Artículo L931-2 Las excepciones previstas por los artículos L. 123-25 a L. 123-27 se aplicarán a las personas físicas sujetas a un
régimen impositivo simplificado por la normativa vigente en Nueva Caledonia.
Artículo L931-3 En el artículo L. 131-11, las palabras: "Si estuviera inscrito en la lista de los corredores, elaborada de acuerdo a las
disposiciones reglamentarias vigentes al respecto, será eliminado de ella y no podrá ser inscrito de nuevo".
Artículo L931-4 Para la aplicación del artículo L. 133-6: 1º Las palabras: "las que tienen su origen en las disposiciones del artículo 1269 del nuevo Código de Proceso Civil"
serán sustituidas por las palabras: "las acciones presentadas de revisión de cuenta y de liquidación de los productos para subsanar un error, una omisión o una presentación inexacta";
2º Las disposiciones del último párrafo se aplicarán en el caso de transporte realizado por cuenta de Nueva Caledonia.
Artículo L931-5 En el artículo L. 133-7, las palabras: "los derechos, tasas, gastos y multas de aduana vinculados a una operación
de transporte".
Artículo L931-6 Para la aplicación de los artículos L. 141-15, L. 143-7, L. 144-1 a L. 144-13 y L. 145-28, el presidente podrá delegar
en un magistrado del Tribunal de Primera Instancia.
Artículo L931-7 En el artículo L. 141-13, las palabras: "por los artículos 638 y 653 del Código General de Impuestos" serán
sustituidas por las palabras: "por las disposiciones del Código de Impuestos aplicable en Nueva Caledonia relativas a las declaraciones verbales de cambio de titular".
Artículo L931-8 En el artículo L. 144-5, las palabras: "los artículos L. 3211-2 y L. 3212-1 a L. 3212-12 del Código de la Salud
Pública" serán sustituidas por las palabras: "los artículos del Código de la Salud Pública aplicable en Nueva Caledonia relativos a la hospitalización o internamiento con o sin el consentimiento del interesado".
Artículo L931-9 El artículo L. 144-11 quedará redactado del modo siguiente: "Art. L. 144-11. - Si, de acuerdo a la normativa local, el contrato de arrendamiento de negocio incluyera una
cláusula de revisión - actualización, se podrá solicitar la revisión del importe del alquiler en las condiciones fijadas por un acuerdo de la autoridad local, no obstante cualquier contrato en contrario, si por el juego de dicha cláusula, este
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CÓDIGO DE COMERCIO contrato de alquiler se viera aumentado o disminuido en más de un cuarto con relación al precio anteriormente fijado contractual o judicialmente". "
Artículo L931-10 El artículo L. 144-12 quedará redactado del modo siguiente: "Art. L. 144-12. - Si no hay acuerdo amistoso entre las partes sobre la revisión del precio del alquiler, la acción será
emprendida y juzgada según las disposiciones previstas en materia de revisión del precio de los arrendamientos de inmuebles o de locales comerciales o industriales.
El juez deberá adaptar el juego de la cláusula de revisión actualización al valor del alquiler del día de la notificación, teniendo en cuenta todos los elementos de apreciación. El nuevo precio será aplicable a partir de esta misma fecha, a menos que las partes se hayan puesto de acuerdo antes o durante la instancia en una fecha anterior o más reciente. "
Artículo L931-11 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
El artículo L. 145-2 quedará redactado del modo siguiente: I. - En el apartado 4º, las palabras: "al Estado, a los departamentos, a los Ayuntamientos, a las entidades públicas"
serán sustituidas por las palabras: "al Estado, a las Entidades Territoriales y a las entidades públicas"; II. - En el apartado 6º, las palabras: "en la Caja de Seguridad Social de la Casa de los artistas y autores
reconocidos de obras gráficas y plásticas, tal y como son definidos por el artículo 71 del anexo III del Código General de Impuestos" serán sustituidas por las palabras: "en la caja local de Seguridad Social y reconocidos autores de obras gráficas o plásticas en el sentido del Código de Impuestos aplicable en Nueva Caledonia".
Artículo L931-12 Para la aplicación del artículo L. 145-6, las palabras: "la evacuación de los locales incluidos en un sector o
perímetro previsto en los artículos L. 313-3 y L. 313-4 del Código de Urbanismo" serán sustituidas por las palabras: "la evacuación de los locales prevista en el artículo L. 145-
Artículo L931-13 En el artículo L. 145-13, las palabras: "no obstante las disposiciones de la Ley de 28 de mayo de 1943 relativa a la
aplicación a los extranjeros de las leyes en materia de arrendamientos de inmuebles y arrendamientos rústicos".
Artículo L931-14 El párrafo segundo del artículo L. 145-18 quedará redactado del modo siguiente: "Lo mismo ocurrirá para efectuar operaciones de restauración inmobiliarias que conlleven obras de rehabilitación,
de conservación, de modernización o de demolición que tengan como consecuencia la transformación de las condiciones de habitabilidad de un conjunto de inmuebles que necesiten la evacuación de los locales. Estas operaciones podrán ser decididas y ejecutadas respetando la normativa vigente, por las autoridades públicas localmente competentes o por iniciativa de uno o varios propietarios, unidos o no en asociación sindical. En este último caso, el o los propietarios serán autorizados especialmente para ello en las condiciones determinadas por las autoridades locales competentes que precisarán sobre todo las obligaciones exigidas a los propietarios en cuanto a la naturaleza e importancia de las obras. Los inmuebles adquiridos por un organismo de renovación sólo podrán ser cedidos, tras la restauración, según lo libremente acordado ateniéndose a un pliego de condiciones tipo aprobado por dichas autoridades". "
Artículo L931-15 En el artículo L. 145-26, las palabras: "a los departamentos" serán sustituidas por las palabras: "a Nueva
Caledonia, a las provincias".
Artículo L931-16 El artículo L. 145-37 quedará redactado del modo siguiente: "Art. L. 145-37. - Los contratos de los alquileres de inmuebles o de locales regulados por el presente capítulo,
renovados o no, podrán ser revisados a petición de una u otra de las partes, en las condiciones previstas por los acuerdos de la autoridad competente en Nueva Caledonia" "
Artículo L931-17 El artículo L. 145-43 quedará redactado del modo siguiente: "Art. L. 145-43. - Quedarán dispensados de la obligación de explotar durante el período del curso formativo, los
comerciantes y artesanos, arrendatarios del local en el que esté situado su fondo de comercio, que sean admitidos a realizar un curso de readaptación profesional o un curso de cualificación según las disposiciones del Código de trabajo aplicable en la Nueva Caledonia". "
Artículo L931-18 Se suprimirá el párrafo tercero del artículo L. 145-47.
Artículo L931-19 En el artículo L. 145-56, las palabras: "y de procedimiento" serán suprimidas.
CAPITULO II Disposiciones de adaptación del libro II Artículos L932-6 a
L932-17
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CÓDIGO DE COMERCIO Artículo L932-6 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 57 III Diario Oficial de 26 de junio de 2004)
En los artículos L. 225-177 y L. 225-179 y L. 233-11, las palabras: "la fecha de publicación de la Ley nº 2001-420 de 15 de mayo de 2001 relativa a las nuevas regulaciones económicas" serán sustituidas por las palabras: "la fecha de publicación de la disposición nº 2004-604 de 24 de junio de 2004 relativa a la reforma del régimen de valores mobiliarios emitidos por las sociedades comerciales y la aplicación a los territorios de Ultramar de las disposiciones de modificación de la legislación comercial".
Artículo L932-7 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 48 V Diario Oficial de 27 de marzo de 2004)
En los artículos L. 223-18 y L. 225-36 y L. 225-65, las palabras: "en el mismo departamento o en un departamento limítrofe" serán sustituidas por las palabras: "en Nueva Caledonia".
Artículo L932-8 Se suprimirán el último párrafo del artículo L. 225-43 y el del artículo L. 225-91.
Artículo L932-10 El apartado 5º del artículo L. 225-115 quedará redactado del modo siguiente: "5º Del importe global, certificada por los auditores de cuentas, las deducciones del importe de los beneficios
imponibles de sociedades que realicen pagos a obras de organismos de interés general o de sociedades autorizadas o donaciones de obras de arte al Estado o a Nueva Caledonia, tal y como está previsto por las disposiciones del derecho fiscal aplicables en Nueva Caledonia, así como la lista de las acciones nominativas de padrinazgo, de mecenazgo". "
Artículo L932-11 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 57 III Diario Oficial de 26 de junio de 2004)
En los artículos L. 225-105 y L. 225-230 y L. 225-231, las palabras: "el comité de empresa" se añadirán las palabras: "o en su defecto los delegados del personal".
Artículo L932-12 En los artículos L. 225-231, L. 232-3, L. 232-4, L. 234-1 y L. 234-2, a las palabras: "al comité de empresa" se
añadirán las palabras: "o en su defecto a los delegados del personal".
Artículo L932-14 En el punto VI del artículo L. 225-270, las palabras: "las disposiciones del artículo 94 A del Código General de
Impuestos" serán sustituidas por las palabras: "las disposiciones del Código de Impuestos aplicable en Nueva Caledonia relativas a los beneficios netos en capital obtenidos por la cesión a título oneroso de valores mobiliarios o derechos sociales".
Artículo L932-15 Quedará suprimido el último párrafo del artículo L. 228-36.
Artículo L932-16 En el artículo L. 233-24 se suprimen las palabras "o del punto VII del artículo 97".
Artículo L932-17 Quedará suprimido el párrafo segundo del artículo L. 251-7.
CAPITULO III Disposiciones de adaptación del libro III Artículos L933-1 a
L933-8
Artículo L933-1 Quedarán suprimidos los párrafos segundo y tercero del artículo L. 310-1.
Artículo L933-2 Quedarán suprimidos los párrafos segundo y tercero del punto I y II del artículo L. 310-2.
Artículo L933-3 Se suprimirá el párrafo segundo del punto I del artículo L. 310-3.
Artículo L933-4 Se suprimirán los apartados 1º, 2º y 3º del artículo L. 310-5.
Artículo L933-5 En el artículo L. 322-1, las palabras: "en los artículos 53 de la Ley nº 91-650 de 9 de julio de 1991 relativa a la
reforma del procedimiento de ejecución y 945 del Código de Proceso Civil" serán sustituidas por las palabras: "a las disposiciones de procedimiento civil aplicables en Nueva Caledonia y relativas a la venta de bienes muebles procedentes de una herencia".
Artículo L933-6 El artículo L. 322-11 quedará redactado del modo siguiente: "Art L. 322-11. - Las impugnaciones relativas a las ventas realizadas en aplicación de los acuerdos localmente
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CÓDIGO DE COMERCIO vigentes relativas a la venta voluntaria, en subasta, al por mayor, de mercancías por parte de los corredores jurados serán presentadas ante el Tribunal mixto del comercio". "
Artículo L933-7 El artículo L. 322-15 quedará redactado del modo siguiente: "Art. L. 322-15.- Sigue siendo competencia del Tribunal o del Juez que autoriza la venta en virtud del artículo
anterior, el nombrar eventualmente a otra clase de funcionarios públicos diferentes a los corredores jurados para proceder a dicha venta". "
Artículo L933-8 El artículo L. 322-16 quedará redactado del modo siguiente: "Art. L. 322-16. - Las disposiciones del artículo L. 322-11 serán aplicables a las ventas citadas en los artículos L.
322-14 y L. 322-15".
CAPITULO V Disposiciones de adaptación del libro V Artículos L935-1 a
L935-9
Artículo L935-1 Se suprimirá la palabra "destitución" en el artículo L. 511-55.
Artículo L935-2 El artículo L. 511-60 quedará redactado del modo siguiente: "Art. L. 511-60. - Un decreto adoptado en Conseil d'Etat determinará las condiciones de aplicación de las
disposiciones de la presente subsección, salvo el importe de las remuneraciones que correspondan a los notarios o huissiers que hayan levantado los protestos en todos aquellos supuestos de los que se hayan encargado". "
Artículo L935-3 En el artículo L. 511-61, las palabras: "o de las Entidades Territoriales serán sustituidas por las palabras: "de los
Ayuntamientos, de las provincias o de Nueva Caledonia".
Artículo L935-4 El párrafo segundo del artículo L. 511-62 quedará redactado del modo siguiente: "La letra de resaca incluirá las cantidades indicadas en los artículos L. 511-45 y L. 511-46, además de los derechos
de corretaje y de timbre eventualmente previstos por las disposiciones del Código de Impuestos aplicable en Nueva Caledonia". "
Artículo L935-5 En los artículos L. 523-8 y L. 524-6, las palabras: "Artículos 1426 al 1429 del nuevo Código de Proceso Civil" serán
sustituidas por las palabras: "disposiciones de procedimiento civil aplicables localmente relativas a las ofertas de pago y a la consignación".
Artículo L935-6 El primer párrafo del artículo L. 524-19 quedará redactado del modo siguiente: "El importe de los derechos que el secretario del Tribunal mixto de comercio deberá percibir será determinado por
decreto". "
Artículo L935-7 En el primer párrafo del artículo L. 525-2, tras las palabras: "al impuesto mínimo alzado" se añadirán las palabras:
"según las disposiciones vigentes en Nueva Caledonia".
Artículo L935-8 En el punto II del artículo L. 525-9, las palabras: "al privilegio citado en el artículo L. 243-4 del Código de la
Seguridad Social" serán sustituidas por las palabras: "al privilegio organizado en beneficio de la Caja de Previsión Social del territorio".
Artículo L935-9 El artículo L. 525-18 quedará redactado del modo siguiente: "I. - En el apartado 1º, la referencia al decreto nº 53-968 de 30 de septiembre de 1953 será sustituida por la
referencia nº 55-639 del 20 de mayo de 1955. II. - El apartado 2º quedará redactado del modo siguiente: "2º Los buques de mar así como las embarcaciones de navegación fluvial". "
CAPITULO VI Disposiciones de adaptación del libro VI Artículos L936-1 a
L936-13
Artículo L.936-1 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las medidas de aplicación previstas en los artículos L.621-4, L.625-1, L.626-3, L.626-6, L.626-14 y L.626-16 serán
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CÓDIGO DE COMERCIO determinadas por la autoridad competente en Nueva Caledonia.
Artículo L.936-2 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el primer párrafo del artículo L.611-1, la orden del representante del Estado en la región será sustituida por una resolución del gobierno de Nueva Caledonia.
Artículo L.936-3 Para la aplicación del artículo L.612-1, los auditores de cuentas y sus suplentes serán elegidos y ejercerán sus
funciones según la normativa vigente localmente.
Artículo L.936-4 Queda suprimido el párrafo tercero del artículo L.612-1.
Artículo L.936-5 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el artículo L.621-2, las palabras: "en cada departamento", serán sustituidas por las palabras: "en Nueva Caledonia".
Artículo L.936-6 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el artículo L.625-2, las palabras: "mencionada en el artículo L.432-7 del Código de Trabajo" serán sustituidas por las palabras: "respecto de las informaciones que tuvieran un carácter confidencial y hubieran sido presentadas como tales".
Artículo L.936-7 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación del artículo L.622-24, los organismos citados en el artículo L.351-21 del Código de Trabajo serán los organismos de Nueva Caledonia que se encarguen del servicio de la prestación del seguro de desempleo y del cobro de las contribuciones.
Artículo L.936-8 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación de los artículos L.622-24, L.622-26, L.625-3, L.625-4, L.626-5 a L.626-7, L.626-20 y L.662-4, las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo serán las instituciones de Nueva Caledonia encargadas de la aplicación del régimen de seguros contra el riesgo de impago de los salarios, en caso de procedimiento de saneamiento judicial o de liquidación judicial.
Artículo L.936-9 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación del artículo L.626-5 a L.626-7, las instituciones reguladas por el libro IX del Código de la Seguridad Social serán las instituciones de jubilación complementaria o suplementaria o de previsión previstas por las disposiciones aplicables en Nueva Caledonia y relativas a los regímenes de seguridad y protección sociales.
Artículo L.936-10 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el artículo L.621-72, la referencia al artículo 28 del decreto nº 55-22 del 4 de enero de 1955 relativo a la reforma de la publicidad inmobiliaria será sustituida por la referencia a las disposiciones aplicables localmente y relativas a la publicidad de los derechos sobre los inmuebles que no sean ni privilegios ni hipotecas.
Artículo L.936-11
Fecha de actualización 20/03/2006 - Page 304/317
CÓDIGO DE COMERCIO (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el artículo L.642-1, la obligación para el Tribunal de tener en cuenta las disposiciones contenidas en los apartados 1º, 2º, 3º y 4º del artículo L.331-3 del Código Rural se referirá a los siguientes requisitos:
"Observar el orden de prioridades establecido entre la instalación de los jóvenes agricultores y la ampliación de las explotaciones, teniendo en cuenta el interés económico y social del mantenimiento de la autonomía de la explotación objeto de la solicitud;
En caso de ampliación o de reunión de explotaciones, tener en cuenta las posibilidades de instalación en una explotación viable, la situación de las tierras en cuestión con relación a la sede de la explotación del o de los solicitantes, la superficie de los bienes que sean objeto de la solicitud y de las superficies ya aprovechadas por el o los solicitantes, así como por el arrendatario actual;
Considerar la situación personal del o de los solicitantes: edad, situación familiar y profesional y, en su caso, la del arrendatario actual, así como el número y la naturaleza de los puestos de trabajo asalariados en juego;
Tener en cuenta la estructura parcelaria de las explotaciones en cuestión, tanto con relación a la sede de la explotación, como para evitar que determinados cambios en la posesión puedan cuestionar los acondicionamientos obtenidos con ayuda de fondos públicos".
Artículo L.936-12 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No será de aplicación el apartado 4° del punto III del artículo L.643-11.
Artículo L936-13 (Introducido por la Ley nº 2003-7 de 3 de enero de 2003 Artículo 49 I Diario Oficial de 4 de enero de 2003)
El primer párrafo del artículo L. 622-2 será sustituido por una frase redactada del siguiente modo: "En las mismas condiciones se le podrá añadir uno o varios liquidadores." "
CAPITULO VIII Disposiciones de adaptación del libro VIII Artículo L938-1
Artículo L938-1 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 57 III Diario Oficial de 26 de junio de 2004)
Para la aplicación en Nueva Caledonia de los artículos L. 822-2 a L. 822-7, los términos enumerados a continuación serán sustituidos del modo siguiente:
1º "comisión regional de inscripción" por "comisión territorial de inscripción"; 1º "Cámara Regional de Cuentas" por "Cámara Territorial de Cuentas"; 3º "Cámara Regional de Disciplina" por "Cámara Territorial de Disciplina".
TITULO IV DISPOSICIONES APLICALBLES EN LA POLINESIA FRANCESA Artículos L941-1 a
L940-8
Artículo L940-1 (Ley nº 2003-706 de 1 de agosto de 2003 Artículo 116 Diario Oficial de 2 de agosto de 2003) (Ley nº 2003-710 de 1 de agosto de 2003 Artículo 38 II Diario Oficial de 2 de agosto de 2003) (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 66 Diario Oficial de 26 de junio de 2004)
Las disposiciones siguientes del presente Código serán aplicables en el territorio de Polinesia Francesa , no obstante las adaptaciones previstas en los siguientes capítulos:
1º El libro I, salvo los artículos L. 124-1 a L. 126-1, L. 145-34 a L. 145-36, L. 145-38 y L. 145-39; 2º El libro II, salvo los artículos L. 822-1 a L. 822-10, L. 252-1 a L. 252-13; 3º El libro III, salvo los artículos L. 310-4, L. 321-1 a L. 321-38, L. 322-7 y L. 322-10; 4º El libro V, salvo los artículos L. 522-1 a L. 522-40, L. 524-12, L. 524-20 y L. 524-21; 5º El libro VI, salvo los artículos L. 621-38, L. 621-132 y L. 628-1 a L. 628-8. Las anteriores disposiciones entrarán en vigor en la fecha de publicación de la Ley orgánica nº 2004-192 de 27 de
febrero 2004 relativa al estatuto de autonomía de la Polinesia Francesa. Sólo podrán ser modificadas en las condiciones previstas en el artículo 11 de esta ley orgánica.
Artículo L940-2 Para la aplicación del presente Código en la Polinesia Francesa, los términos enumerados a continuación serán
sustituidos del siguiente modo: 1º"Tribunal de grande instance " o "Tribunal d'instance" por "Tribunal de première instance"; 2º "Tribunal de commerce" o "Justicia consular" por "Tribunal mixto de comercio"; 3º "Conseil de prud'hommes" por "Tribunal du travail" 4º "Boletín oficial de anuncios civiles y comerciales" por "Diario Oficial de Polinesia Francesa";
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CÓDIGO DE COMERCIO 5º "departamento" o "circunscripción" por "territorio de Polinesia Francesa"; 6º "Prefecto" o "Subprefecto" por "representante del Estado en el territorio".
Artículo L940-3 Las referencias realizadas por disposiciones del presente Código aplicables en la Polinesia Francesa, a otros
artículos del presente Código, sólo afectarán a los artículos convertidos en aplicables en Polinesia Francesa por las adaptaciones previstas en los capítulos siguientes.
Artículo L940-4 A falta de adaptación, las referencias hechas por disposiciones del presente Código aplicables en la Polinesia
Francesa, a disposiciones que no sean aplicables allí, se sustituirán por las referencias a las disposiciones localmente aplicables que tengan el mismo objeto.
Artículo L940-5 Las referencias hechas por disposiciones del presente Código aplicables en la Polinesia Francesa, a disposiciones
del Código de Trabajo sólo serán aplicables allí si existiese una disposición localmente aplicable que tenga el mismo objeto.
Artículo L940-6 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
Las referencias hechas, por disposiciones del presente Código aplicables en la Polinesia Francesa, a disposiciones de naturaleza reglamentaria se sustituirán por referencias a acuerdos tomados por la autoridad competente en la Polinesia Francesa, sin perjuicio de las disposiciones previstas en los capítulos siguientes.
Artículo L940-7 Las referencias a la inscripción en el Registro Central de Artesanos serán sustituidas por las referencias a la
inscripción hecha según la normativa vigente en la Polinesia Francesa.
Artículo L940-8 Los artículos que hagan referencia a la Comunidad Europea serán aplicables respetando la decisión de asociación
prevista en el artículo 136 del Tratado Constitutivo de la Comunidad Europea. No serán aplicables las referencias al acuerdo sobre el Espacio Económico Europeo.
CAPITULO I Disposiciones de adaptación del libro I Artículos L941-1 a
L941-19
Artículo L941-1 Como excepción a lo establecido en el artículo L. 940-6, se mantendrá la referencia a disposiciones de naturaleza
reglamentaria mencionada en el artículo L.143-23 en lo que se refiere al Instituto Nacional de la Propiedad Industrial.
Artículo L941-2 En el artículo L. 122-1, las palabras: "El Prefecto del departamento en el que el extranjero deberá ejercer su
actividad" serán sustituidas por las palabras: "El Consejo de Ministros de Polinesia Francesa".
Artículo L941-3 Las excepciones previstas por los artículos L. 123-25 a L. 123-27 serán aplicables a las personas físicas sujetas a
un régimen impositivo simplificado por la normativa vigente en la Polinesia Francesa.
Artículo L941-4 Para la aplicación del artículo L. 133-6: I. - Las palabras: "las que tienen su origen en las disposiciones del artículo 1269 del nuevo Código de Proceso
Civil" serán sustituidas por las palabras: "las solicitudes de revisión de cuenta y de liquidación de los resultados presentadas para subsanar un error, una omisión o una presentación inexacta".
II. - Las disposiciones del último párrafo serán aplicables en el caso de que el transporte fuera realizado por cuenta de Polinesia Francesa.
Artículo L941-5 En el artículo L. 133-7, las palabras: "los derechos, tasas, gastos y multas de aduana vinculados a una operación
de transporte".
Artículo L941-6 Para la aplicación de los artículos L. 141-15, L. 143-7, L. 144-1 a L. 144-13 y L. 145-28, el presidente podrá delegar
en un magistrado del Tribunal de Primera Instancia.
Artículo L941-7 En el artículo L. 141-13, las palabras: "por los artículos 638 y 653 del Código General de Impuestos" serán
sustituidas por las palabras: "por las disposiciones del Código de Impuestos aplicable en la Polinesia Francesa".
Artículo L941-8 En el artículo L. 144-5, las palabras: "los artículos L. 3211-2 y L. 3212-1 a L. 3212-12 del Código de la Salud
Pública" serán sustituidas por las palabras: "los artículos del Código de la Salud Pública aplicable en el territorio
Fecha de actualización 20/03/2006 - Page 306/317
CÓDIGO DE COMERCIO relativos a la hospitalización o al internamiento con o sin consentimiento del interesado".
Artículo L941-9 El artículo L. 144-11 quedará redactado del modo siguiente: "Art. L. 144-11. - Si, de acuerdo con la normativa territorial, el contrato de arrendamiento de negocio incluye una
cláusula de revisión - actualización, la revisión del precio del alquiler podrá ser solicitada, no obstante cualquier acuerdo en contrario, según las condiciones determinadas por un acuerdo de la asamblea de Polinesia Francesa cuando, por el juego de esa cláusula, dicho precio se vea aumentado o disminuido en más de un cuarto con relación a la cantidad fijada con anterioridad de forma contractual o judicial". "
Artículo L941-10 El artículo L. 144-12 quedará redactado del modo siguiente: "Art. L. 144-12. - Si no hay acuerdo amistoso entre las partes sobre la revisión del precio del alquiler, la acción será
emprendida y juzgada según las disposiciones previstas en materia de revisión del precio de los arrendamientos de inmuebles o de locales comerciales o industriales.
El juez deberá adaptar el juego de la cláusula de revisión actualización al valor del alquiler del día de la notificación, teniendo en cuenta todos los elementos de apreciación. El nuevo precio será aplicable a partir de esta misma fecha, a menos que las partes se hayan puesto de acuerdo antes o durante la instancia en una fecha anterior o más reciente. "
Artículo L941-11 El artículo L. 145-2 quedará redactado del modo siguiente: I. - En el apartado 4º, las palabras: "al Estado, a los departamentos, a los Ayuntamientos, a las entidades públicas"
serán sustituidas por las palabras: "al Estado, a las Entidades Territoriales y a las entidades públicas"; II. - En el apartado 6º, las palabras: "en la Caja de Seguridad Social de la Casa de los artistas y autores
reconocidos de obras gráficas y plásticas, tal y como son definidos por el artículo 71 del anexo III del Código General de Impuestos" serán sustituidas por las palabras: "En la Caja local de Seguro Social y reconocidos autores de obras gráficas y plásticas en el sentido del Código de Impuestos aplicable en el territorio".
Artículo L941-12 Para la aplicación del artículo L. 145-6, las palabras: "la evacuación de los locales incluidos en un sector o
perímetro previsto en los artículos L. 313-3 y L. 313-4 del Código de Urbanismo" serán sustituidas por las palabras: "la evacuación de los locales prevista en el artículo L. 145-
Artículo L941-13 En el artículo L. 145-13, las palabras: "no obstante las disposiciones de la Ley de 28 de mayo de 1943 relativa a la
aplicación a los extranjeros de las leyes en materia de arrendamientos de inmuebles y arrendamientos rústicos".
Artículo L941-14 El párrafo segundo del artículo L. 145-18 quedará redactado del modo siguiente: "Lo mismo ocurrirá para efectuar operaciones de restauración inmobiliarias que conlleven obras de rehabilitación,
de conservación, de modernización o de demolición que tengan como consecuencia la transformación de las condiciones de habitabilidad de un conjunto de inmuebles que necesiten la evacuación de los locales. Estas operaciones podrán ser decididas y ejecutadas respetando la normativa vigente, por las autoridades públicas localmente competentes o por iniciativa de uno o varios propietarios, unidos o no en asociación sindical. En este último caso, el o los propietarios serán especialmente autorizados para ellos, en las condiciones fijadas por las . las autoridades territoriales competentes, que determinarán sobre todo los compromisos exigidos a los propietarios en cuanto a la naturaleza y a la importancia de las obras. Los inmuebles adquiridos por un organismo de renovación sólo podrán ser cedidos, tras la restauración, según lo libremente acordado ateniéndose a un pliego de condiciones tipo aprobado por dichas autoridades". "
Artículo L941-15 En el artículo L. 145-26, las palabras: "a los departamentos" serán sustituidas por las palabras: "a la Polinesia
Francesa".
Artículo L941-16 El artículo L. 145-37 quedará redactado del modo siguiente: "Art. L. 145-37. - Los precios de los arrendamientos de inmuebles o de locales regulados por el presente capítulo,
renovados o no, podrán ser revisados a petición de una u otra de las partes, en las condiciones previstas por decisión de la Asamblea de la Polinesia Francesa". "
Artículo L941-17 El artículo L. 145-43 quedará redactado del modo siguiente: "Art. L. 145-43. - Quedarán dispensados de la obligación de explotar durante el período del curso formativo, los
comerciantes y artesanos, arrendatarios del local en el que esté situado su fondo de comercio, que sean admitidos a realizar un curso de readaptación profesional o un curso de cualificación según las disposiciones del Código de trabajo aplicable en la Nueva Caledonia". "
Artículo L941-18 Se suprimirá el párrafo tercero del artículo L. 145-47.
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CÓDIGO DE COMERCIO Artículo L941-19
En el artículo L. 145-56, las palabras: "y de procedimiento" serán suprimidas.
CAPITULO II Disposiciones de adaptación del libro II Artículos L942-1 a
L942-15
Artículo L942-1 Como excepción al artículo L. 940-6, se mantendrán las referencias a los decretos mencionados en los artículos L.
225-35 y L. 225-68.
Artículo L942-2 Para la aplicación del libro II, los auditores de cuentas y sus suplentes serán elegidos y ejercerán allí sus funciones
de acuerdo a la normativa vigente en la Polinesia Francesa.
Artículo L942-3 Se suprimirán los apartados 4º y 5º del punto III del artículo L. 225-21.
Artículo L942-4 En los artículos L. 225-25 y L. 225-72, se suprimirá la referencia a los artículos 20 y 21 de la Ley nº 88-1201 de 23
de diciembre de 1988 relativa a los organismos de inversión colectiva en valores mobiliarios que conlleven la creación de fondos comunes de créditos.
Artículo L942-5 En los artículos L. 225-36 y L. 225-65, las palabras: "en el mismo departamento o en un departamento limítrofe"
serán sustituidas por las palabras: "en la Polinesia Francesa".
Artículo L942-6 Se suprimirán el último párrafo del artículo L. 225-43 y el del artículo L. 225-91.
Artículo L942-7 Se suprimirán el apartado 4º del punto IV del artículo L. 225-67 y el apartado 4º del punto III del artículo L. 225-77.
Artículo L942-8 El apartado 5º del artículo L. 225-115 quedará redactado del modo siguiente: "5º Del importe global, certificada por los auditores de cuentas, las deducciones del importe de los beneficios
imponibles de sociedades que realicen pagos a obras de organismos de interés general o de sociedades autorizadas o donaciones de obras de arte al Estado o a la Polinesia Francesa, tal y como está previsto por las disposiciones del derecho fiscal aplicables en Nueva Caledonia, así como la lista de las acciones nominativas de padrinazgo, de mecenazgo". "
Artículo L942-9 En el artículo L. 225-230, tras las palabras: "el comité de empresa", se añadirán las palabras: " ou à défaut les
délégués du personnel ".
Artículo L942-10 En los artículos L. 225-231, L. 232-3, L. 232-4, L. 234-1 y L. 234-2, a las palabras: "al comité de empresa", se
añadirán las palabras: "o en su defecto a los delegados del personal".
Artículo L942-11 Quedará suprimido el párrafo segundo del artículo L. 225-239.
Artículo L942-12 En el punto VI del artículo L. 225-270, las palabras: "las disposiciones del artículo 94 A del Código General de
Impuestos" serán sustituidas por las palabras: "las disposiciones del Código de Impuestos aplicables en el territorio y relativas a los beneficios netos en capital realizados por la cesión a título oneroso de valores mobiliarios y de derechos sociales".
Artículo L942-13 Quedará suprimido el último párrafo del artículo L. 228-36.
Artículo L942-14 En el artículo L. 233-24, las palabras: "o del punto VII del artículo 97" quedarán suprimidas.
Artículo L942-15 Quedará suprimido el párrafo segundo del artículo L. 251-7.
CAPITULO III Disposiciones de adaptación del libro III Artículos L943-1 a
L943-8
Artículo L943-1 Quedarán suprimidos los párrafos segundo y tercero del artículo L. 310-1.
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CÓDIGO DE COMERCIO Artículo L943-2
Quedarán suprimidos los párrafos segundo y tercero del punto I y II del artículo L. 310-2.
Artículo L943-3 Se suprimirá el párrafo segundo del punto I del artículo L. 310-3.
Artículo L943-4 Se suprimirán los apartados 1º, 2º y 3º del artículo L. 310-5.
Artículo L943-5 En el artículo L. 322-1, las palabras: "en los artículos 53 de la Ley nº 91-650 de 9 de julio de 1991 relativa a la
reforma del procedimiento de ejecución y 945 del Código de Proceso Civil" serán sustituidas por las palabras: "en las disposiciones de procedimiento civil localmente aplicables y relativas a la venta de bienes muebles procedentes de una herencia".
Artículo L943-6 El artículo L. 322-11 quedará redactado del modo siguiente: "Art L. 322-11. - Las impugnaciones relativas a las ventas realizadas en aplicación de los acuerdos localmente
vigentes relativas a la venta voluntaria, en subasta, al por mayor, de mercancías por parte de los corredores jurados serán presentadas ante el Tribunal mixto del comercio". "
Artículo L943-7 El artículo L. 322-15 quedará redactado del modo siguiente: "Art. L. 322-15.- Sigue siendo competencia del Tribunal o del Juez que autoriza la venta en virtud del artículo
anterior, el nombrar eventualmente a otra clase de funcionarios públicos diferentes a los corredores jurados para proceder a dicha venta". "
Artículo L943-8 El artículo L. 322-16 quedará redactado del modo siguiente: "Art. L. 322-16. - Las disposiciones del artículo L. 322-11 serán aplicables a las ventas citadas en los artículos L.
322-14 y L. 322-15".
CAPITULO V Disposiciones de adaptación del libro V Artículos L945-1 a
L945-9
Artículo L945-1 Como excepción al artículo L. 940-6, se mantendrán las referencias a disposiciones de naturaleza reglamentaria
mencionados en los artículos L. 523-14 y L. 524-19.
Artículo L945-2 Se suprimirá la palabra "destitución" en el artículo L. 511-55.
Artículo L945-3 El artículo L. 511-60 quedará redactado del modo siguiente: "Art. L. 511-60. - Las condiciones de aplicación de las disposiciones de la presente subsección serán establecidas
por acuerdo de la autoridad territorial competente". "
Artículo L945-4 En el artículo L. 511-61, las palabras: "o de las Entidades Territoriales serán sustituidas por las palabras: "o de los
Ayuntamientos o de Polinesia Francesa".
Artículo L945-5 El párrafo segundo del artículo L. 511-62 quedará redactado del modo siguiente: "La letra de resaca incluirá las cantidades indicadas en los artículos L. 511-45 y L. 511-46, además de los derechos
de corretaje y de timbre eventualmente previstos por las disposiciones aplicables en la Polinesia Francesa". "
Artículo L945-6 En los artículos L. 523-8 y L. 524-6, las palabras: "Artículos 1426 al 1429 del nuevo Código de Proceso Civil" serán
sustituidas por las palabras: "disposiciones de procedimiento civil aplicables localmente relativas a las ofertas de pago y a la consignación".
Artículo L945-7 En el primer párrafo del artículo L. 525-2, tras las palabras: "al impuesto mínimo alzado" se añadirán las palabras:
"según las condiciones vigentes en la Polinesia Francesa".
Artículo L945-8 En el punto II del artículo L. 525-9, las palabras: "al privilegio citado en el artículo L. 243-4 del Código de la
Seguridad Social" serán sustituidas por las palabras: "al privilegio organizado en beneficio de la Caja de Previsión Social del Territorio".
Artículo L945-9
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CÓDIGO DE COMERCIO El artículo L. 525-18 quedará redactado del modo siguiente: I. - En el apartado 1º, la referencia al decreto nº 53-968 de 30 de septiembre de 1953 será sustituida por la
referencia nº 55-639 del 20 de mayo de 1955; II. - El apartado 2º quedará redactado del modo siguiente: "2º Los buques de mar así como las embarcaciones de navegación fluvial". "
CAPITULO VI Disposiciones de adaptación del libro VI Artículos L946-1 a
L946-13
Artículo L946-1 Como excepción al artículo L. 940-6, se mantiene la remisión a disposiciones de naturaleza reglamentaria
mencionada en el artículo L. 621-5.
Artículo L946-2 El artículo L. 611-1 quedará redactado del modo siguiente: I. - En el primer párrafo, la orden del representante del Estado en la región será reemplazada por una resolución
del gobierno de Polinesia Francesa. "II. - En el párrafo cuarto, se suprimirán las palabras: "sobre todo en aplicación de los artículos 5, 48 y 66 de la Ley
nº 82-213 de 2 de marzo de 1982 modificada, relativa a los derechos y libertades de los Ayuntamientos, de los departamentos y de las regiones".
Artículo L946-3 Para la aplicación del artículo L. 612-1, los auditores de cuentas y sus suplentes serán elegidos y ejercerán sus
funciones según la normativa localmente vigente.
Artículo L946-4 Se suprimirá el párrafo tercero del artículo L. 612-1.
Artículo L946-5 En el artículo L. 612-2, tras las palabras: "al comité de empresa" se añadirán las palabras: "o, en su defecto, a los
delegados de personal".
Artículo L946-6 En el artículo L. 621-5, las palabras: "en cada departamento" serán sustituidas por las palabras: "en la Polinesia
Francesa".
Artículo L946-7 En el artículo L. 621-36, las palabras: "mencionada en el artículo L. 432-7 del Código de Trabajo" serán sustituidas
por las palabras: "con relación a las informaciones que tuvieran un carácter confidencial y hayan sido presentadas como tales".
Artículo L946-8 Para la aplicación del artículo L. 621-43, los organismos citados en el artículo L. 351-21 del Código de Trabajo
serán los organismos territoriales que se encarguen del servicio de prestación del seguro de desempleo y del cobro de las contribuciones.
Artículo L946-9 Para la aplicación de los artículos L. 621-43, L. 621-46, L. 621-60, L. 621-78, L. 621-126, L. 621-127 y L. 627-5, las
instituciones mencionadas en el artículo L. 143-11-4 del Código de Trabajo serán las instituciones territoriales encargadas de la aplicación del régimen de seguros contra el riesgo de impago de los salarios, en caso de procedimiento de suspensión de pagos o de liquidación judicial.
Artículo L946-10 Para la aplicación del artículo L. 621-60, las instituciones reguladas por el libro IX del Código de la Seguridad
Social serán las instituciones territoriales de jubilación complementaria o suplementaria o de previsión, previstas por las disposiciones aplicables en la Entidad territorial y relativas a los regímenes de seguridad y de protección sociales.
Artículo L946-11 En el artículo L. 621-72, la referencia al artículo 28 del decreto nº 55-22 del 4 de enero de 1955 relativo a la
reforma de la publicidad inmobiliaria será sustituida por la referencia a las disposiciones aplicables en el territorio y relativas a la publicidad de los derechos sobre los inmuebles que no sean ni privilegios ni hipotecas.
Artículo L946-12 En el artículo L. 621-84, el compromiso ante el Tribunal de tener en cuenta las disposiciones contenidas en los
apartados 1º, 2º, 3º y 4º del artículo L. 331-7 del Código Rural se presumirá así mismo de las prescripciones siguientes: "Observar el orden de prioridades establecido entre la instalación de los jóvenes agricultores y la ampliación de las
explotaciones, teniendo en cuenta el interés económico y social del mantenimiento de la autonomía de la explotación objeto de la solicitud;
En caso de ampliación o de reunión de explotaciones tener en cuenta las posibilidades de instalación en una explotación viable, la situación de las tierras afectadas con relación a la sede de la explotación del o de los solicitantes,
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CÓDIGO DE COMERCIO la superficie de los bienes que sean objeto de la solicitud y de las superficies ya aprovechadas por el o los solicitantes, así como por el arrendatario actual;
Considerar la situación personal del o de los solicitantes: edad, situación familiar y profesional y, en su caso, la del arrendatario actual, así como el número y la naturaleza de los puestos de trabajo asalariados en juego;
Tener en cuenta la estructura parcelaria de las explotaciones afectadas, tanto con relación a la sede de la explotación, como para evitar que cambios en la posesión puedan poner en peligro los acondicionamientos ya realizados con ayuda de fondos públicos". "
Artículo L946-13 (Introducido por la Ley nº 2003-7 de 1 de enero de 2003 Artículo 49 II Diario Oficial de 4 de enero de 2003)
El primer párrafo del artículo L. 622-2 será sustituido por una frase redactada del siguiente modo: "En las mismas condiciones se le podrá añadir uno o varios liquidadores." "
TITULO V DISPOSICIONES APLICABLES EN LAS ISLAS DE WALLIS Y FUTUNA Artículos L951-1 a
L950-7
Artículo L.950-1 (Ley nº 2003-710 de 1 de agosto de 2003 art. 38 II Diario Oficial de 2 de agosto de 2003) (Ley nº 2004-130 del 11 de febrero de 2004 art. 53 II 2° Diario Oficial de 12 de febrero de 2004) (Disposición nº 2004-274 de 25 de marzo de 2004 art. 49 V Diario Oficial de 27 de marzo de 2004 ) (Ley nº 2005-842 de 26 de julio de 2005 art. 11 III Diario Oficial de 27 de julio de 2005) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Sin perjuicio de las adaptaciones previstas en los siguientes capítulos, las disposiciones enumeradas a continuación serán aplicables en las islas Wallis y Futuna:
1º El libro I, salvo los artículos L.124-1 a L.126-1; 2º El libro II, salvo los artículos L.225-245-1, L.229-1 a L.229-15, L.238-6, L.244-5 y L.252-1 a L.252-13; 3º El libro III, salvo los artículos L.321-1 a L.321-38; 4º El libro IV, salvo los artículos L.441-1, L.442-1 y L.470-6; 5º El libro V, salvo los artículos L.522-1 a L.522-40, L.524-12, L.524-20 y L.524-21; 6º El libro VI, salvo los artículos L.622-19, L.625-9, L.653-10 y L.670-1 a L.670-8; 7º El libro VII, salvo los artículos L.711-5, L.711-9, L.720-1 a L.740-3. 8º El libro VIII, salvo los artículos L.812-1 a L.813-1.
Artículo L950-2 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 49 VI Diario Oficial de 27 de marzo de 2004)
Para la aplicación del presente Código en las islas Wallis y Futuna, los términos enumerados a continuación serán sustituidos del siguiente modo:
1º "Tribunal de grande instance " o "Tribunal d'instance" por Tribunal de première instance"; 2º "Tribunal de commerce" o "justicia consular" por "Tribunal de première instance" competente en materia
comercial"; 3º "Conseil de prud'hommes" por "Tribunal du travail"; 4º "Boletín oficial de anuncios civiles y comerciales" por "Diario Oficial del territorio" 5º "departamento" o "circunscripción" por "territorio"; 6º "Prefecto" o "Subprefecto" por "representante del Estado en el territorio". 7º "alcalde" por "jefe de circunscripción".
Artículo L950-3 Las referencias hechas por disposiciones del presente Código aplicables en las islas Wallis y Futuna, a otros
artículos del presente Código, sólo afectarán a los artículos aplicables en las islas Wallis y Futuna con las adaptaciones previstas en los capítulos posteriores.
Artículo L950-4 A falta de adaptación, las referencias hechas por las disposiciones del presente Código aplicables en las islas
Wallis y Futuna, a disposiciones que no sean aplicables allí, serán sustituidas por las referencias a las disposiciones que tengan el mismo objeto y que sean localmente aplicables.
Artículo L950-5 Las referencias hechas por las disposiciones del presente Código aplicables en las islas Wallis y Futuna, a
disposiciones del Código de Trabajo sólo serán allí aplicables si existe una disposición localmente aplicable que tenga el mismo objeto.
Artículo L950-6 Las referencias a la inscripción en el Registro Central de Artesanos serán sustituidas por las referencias a la
inscripción realizada según la normativa aplicable en las islas Wallis y Futuna.
Artículo L950-7 Los artículos que hagan referencia a la Comunidad Europea serán aplicables respetando la decisión de asociación
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CÓDIGO DE COMERCIO prevista en el artículo 136 del Tratado Constitutivo de la Comunidad Europea. No serán aplicables las referencias al acuerdo sobre el Espacio Económico Europeo.
CAPITULO I Disposiciones de adaptación del libro I Artículos L951-1 a
L951-14
Artículo L951-1 En el artículo L. 122-1, las palabras: "por el Prefecto del departamento en el que el extranjero deba ejercer su
actividad" serán sustituidas por las palabras: "por el representante del Estado en el territorio en el caso de que el extranjero tenga que ejercer allí su actividad".
Artículo L951-2 Las excepciones previstas en los artículos L. 123-25 a L. 123-27 serán aplicables a las personas físicas sujetas a
un régimen impositivo simplificado por la normativa localmente vigente.
Artículo L951-3 En el artículo L. 133-6, las palabras: "las que tienen su origen en las disposiciones del artículo 1269 del nuevo
Código de Proceso Civil" serán sustituidas por las palabras: "las solicitudes de revisión de cuenta y de liquidación de los resultados presentadas para subsanar un error, una omisión o una presentación inexacta".
Artículo L951-4 Para la aplicación de los artículos L. 141-15, L. 143-7, L. 144-1 a L. 144-13 y L. 145-28, el presidente podrá delegar
en un magistrado del Tribunal de Primera Instancia.
Artículo L951-5 En el artículo L. 141-13, las palabras: "por los artículos 638 y 653 del Código General de Impuestos" serán
sustituidas por las palabras: "por las disposiciones del Código de Impuestos aplicable en el territorio".
Artículo L951-6 En el artículo L. 144-5, las palabras: "los artículos L. 3211-2 y L. 3212-1 a L. 3212-12 del Código de la Salud
Pública" serán sustituidas por las palabras: "los artículos del Código de la Salud Pública aplicable en el territorio relativos a la hospitalización y al internamiento con o sin consentimiento del interesado".
Artículo L951-7 (Ley nº 2003-7 de 3 de enero de 2003 Artículo 50 II Diario Oficial de 4 de enero de 2003)
El artículo L. 145-2 quedará redactado del modo siguiente: I. - En el apartado 4º, las palabras: "al Estado, a los departamentos, a los Ayuntamientos, a las entidades públicas"
serán sustituidas por las palabras: "al Estado, a las Entidades Territoriales y a las entidades públicas"; II. - En el apartado 6º, las palabras: "en la Caja de Seguridad Social de la Casa de los artistas y autores
reconocidos de obras gráficas y plásticas, tal y como son definidos por el artículo 71 del anexo III del Código General de Impuestos" serán sustituidas por las palabras: "En la Caja local de Seguro Social y reconocidos autores de obras gráficas y plásticas en el sentido del Código de Impuestos aplicable en el territorio".
Artículo L951-8 Para la aplicación del artículo L. 145-6, las palabras: "la evacuación de los locales incluidos en un sector o
perímetro previsto en los artículos L. 313-3 y L. 313-4 del Código de Urbanismo" serán sustituidas por las palabras "la evacuación de los locales prevista en el artículo L. 145-18".
Artículo L951-9 En el artículo L. 145-13, se suprimirán las palabras "no obstante las disposiciones de la Ley de 28 de mayo de
1943 relativa a la aplicación a los extranjeros de los arrendamientos de inmuebles y arrendamientos rústicos".
Artículo L951-10 El párrafo segundo del artículo L. 145-18 quedará redactado del modo siguiente: "Lo mismo ocurrirá para efectuar operaciones de restauración inmobiliarias que conlleven obras de rehabilitación,
de conservación, de modernización o de demolición que tengan como consecuencia la transformación de las condiciones de habitabilidad de un conjunto de inmuebles que necesiten la evacuación de los locales. Estas operaciones podrán ser decididas y ejecutadas respetando la normativa vigente, por las autoridades públicas localmente competentes o por iniciativa de uno o varios propietarios, unidos o no en asociación sindical. En este último caso, el o los propietarios estarán especialmente autorizados para ello en las condiciones determinadas por el representante del Estado, que determinará sobre todo los compromisos exigidos a los propietarios en cuanto a la naturaleza y a la importancia de las obras. Los inmuebles adquiridos por un organismo de renovación sólo podrán ser cedidos según lo libremente acordado ateniéndose a un pliego de condiciones tipo aprobado por el representante del Estado. "
Artículo L951-11 En el artículo L. 145-26, tras las palabras: "al Estado, a los departamentos, a los Ayuntamientos", se añadirán las
palabras: "en el territorio".
Artículo L951-12
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CÓDIGO DE COMERCIO (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 58 III Diario Oficial de 26 de junio de 2004)
El primer párrafo del artículo L. 145-34 quedará redactado del modo siguiente: "Salvo que haya una modificación notable de los elementos mencionados en los apartados 1° a 4° del artículo L.
145-33, el índice de variación del alquiler aplicable en el momento de renovar el contrato no podrá exceder de la variación sufrida por el índice nacional trimestral que mide el coste de la construcción desde la determinación inicial del contrato de arrendamiento expirado, si su duración no fuese superior a nueve años. Este índice se calculará en las condiciones establecidas por una orden del representante del Estado. A falta de dicha cláusula contractual que fije el trimestre de referencia de este índice, se tendrá en cuenta una variación del índice local trimestral que mide el coste de la construcción determinado a este efecto por la orden antes citada. "
Artículo L951-13 El artículo L. 145-35 quedará redactado del modo siguiente: I. - En el primer párrafo, las palabras: "departamental" queda suprimida; II. - El último párrafo quedará redactado del modo siguiente: "La composición de la comisión, el modo de nombramiento de sus miembros y sus normas de funcionamiento
serán determinadas por una orden del representante del Estado". "
Artículo L951-14 El artículo L. 145-43 quedará redactado del modo siguiente: "Art. L. 145-43. - Quedarán dispensados de la obligación de explotar durante el período del curso formativo, los
comerciantes y artesanos, arrendatarios del local en el que esté situado su fondo de comercio, que sean admitidos a realizar un curso de readaptación profesional o un curso de cualificación según las disposiciones del Código de trabajo aplicable en la Nueva Caledonia". "
CAPITULO II Disposiciones de adaptación del libro II Artículos L952-1 a
L952-10
Artículo L952-1 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 58 III Diario Oficial de 26 de junio de 2004)
En los artículos L. 225-177 y L. 225-179 y L. 233-11, las palabras: "la fecha de publicación de la Ley nº 2001-420 de 15 de mayo de 2001 relativa a las nuevas regulaciones económicas" serán sustituidas por las palabras: "la fecha de publicación de la disposición nº 2004-604 de 24 de junio de 2004 relativa a la reforma del régimen de valores mobiliarios emitidos por las sociedades comerciales y la aplicación a los territorios de Ultramar de las disposiciones de modificación de la legislación comercial".
Artículo L952-2 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 49 VII Diario Oficial de 27 de marzo de 2004)
En los artículos L. 223-18 y L. 225-36 y L. 225-65, las palabras: "en el mismo departamento o en un departamento limítrofe" serán sustituidas por las palabras: "en el territorio".
Artículo L952-3 Se suprimirán el último párrafo del artículo L. 225-43 y el del artículo L. 225-91.
Artículo L952-4 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 62 Diario Oficial de 26 de junio de 2004)
En el apartado 5º del artículo L. 225-115, las palabras: "pagos realizados en aplicación de los apartados 1 y 4 del artículo 238 bis del Código General de Impuestos" serán sustituidas por las palabras: "deducciones fiscales previstas por las disposiciones de derecho fiscal aplicables en el territorio y relativas al total de las deducciones del importe de los beneficios imponibles de las sociedades que desembolsen cantidades en beneficio de obras de organismos de interés general o de sociedades autorizadas o donaciones de obras de arte al Estado".
Artículo L952-5 (Disposición nº 2004-604 de 24 de junio de 2004 Artículo 58 III Diario Oficial de 26 de junio de 2004)
En los artículos L. 225-105 y L. 225-230 y L. 225-231, las palabras: "el comité de empresa" serán sustituidas por las palabras: "los delegados del personal".
Artículo L952-6 En los artículos L. 225-231, L. 232-3, L. 232-4, L. 234-1 y L. 234-2, las palabras: "al comité de empresa" serán
sustituidas por las palabras: "a los delegados del personal".
Artículo L952-7 En el punto VI del artículo L. 225-270, las palabras: "las disposiciones del artículo 94 A del Código General de
Impuestos" serán sustituidas por las palabras: "las disposiciones del Código de Impuestos aplicables en el territorio y relativas a los beneficios netos en capital realizados por la cesión a título oneroso de valores mobiliarios y de derechos sociales".
Artículo L952-8 Quedará suprimido el último párrafo del artículo L. 228-36.
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CÓDIGO DE COMERCIO Artículo L952-9
En el artículo L. 233-24, las palabras: "o del punto VII del artículo 97" quedarán suprimidas.
Artículo L952-10 Quedará suprimido el párrafo segundo del artículo L. 251-7.
CAPITULO III Disposiciones de adaptación del libro III Artículos L953-1 a
L953-3
Artículo L953-1 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 49 VIII Diario Oficial de 27 de marzo de 2004) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 49 VIII Diario Oficial de 27 de marzo de 2004)
Se suprimirán el punto III del artículo L. 310-2 y el apartado 6° del artículo L. 310-5.
Artículo L953-2 (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 49 VIII Diario Oficial de 27 de marzo de 2004) (Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 49 VIII Diario Oficial de 27 de marzo de 2004)
En el artículo L. 322-1, las palabras: "en los artículos 53 de la Ley nº 91-650 de 9 de julio de 1991 relativa a la reforma del procedimiento de ejecución y 945 del Código de Proceso Civil" serán sustituidas por las palabras: "en las disposiciones de procedimiento civil aplicables en el territorio relativas a la venta de bienes muebles procedentes de una herencia".
Artículo L953-3 (Introducido por la Disposición nº 2004-274 de 25 de marzo de 2004 Artículo 49 VIII Diario Oficial de 27 de marzo de 2004)
El párrafo segundo del artículo L. 322-9 quedará redactado del modo siguiente: "Se sujetarán a las disposiciones prescritas por el Código de Impuestos aplicable en el territorio relativas a las
ventas públicas y en subasta".
CAPITULO IV Disposiciones de adaptación del libro IV Artículos L954-1 a
L954-7
Artículo L954-1 (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004) (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004)
En el primer párrafo del artículo L. 430-2, la palabra: "tres" será sustituida por la palabra: "dos". Se suprimirán los apartados cuarto y quinto de este artículo.
Artículo L954-2 (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004) (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004)
En el artículo L. 430-3, se suprimirá la última frase del primer párrafo. En el tercer párrafo del mismo artículo, las palabras: ", o la remisión total o parcial de una operación de dimensión comunitaria" serán suprimidos.
Artículo L954-3 (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004) (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004)
El último párrafo del artículo L. 441-2 será sustituido por cuatro párrafos redactados del siguiente modo: "El juez de instrucción o el Tribunal incoado para estas diligencias podrá ordenar que cese la publicidad, realizada
en condiciones no conformes a las disposiciones del párrafo 1, por requerimiento del Ministerio Público o de oficio. La medida tomada de este modo será ejecutoria pese a que puedan interponerse recursos.
La jurisdicción que haya ordenado el embargo o que haya sido encargada del asunto podrá ordenar su levantamiento. La medida dejará de tener efecto en caso de sobreseimiento o de absolución.
Las resoluciones que resuelvan sobre las demandas de embargo podrán ser objeto de un recurso ante la Cour d'appel La Cour d'appel resolverá en un plazo de diez días contados a partir de la recepción de la documentación. "
Artículo L954-4 (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004) (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004)
En el párrafo segundo del artículo L. 442-2, antes de las palabras: "tasas sobre el volumen de negocio", se añadirá la palabra: "eventuales".
Artículo L954-5 (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004) (Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004)
El último párrafo del artículo L. 442-3 será sustituido por cuatro párrafos redactados del siguiente modo: "El juez de instrucción o el Tribunal encargado de las diligencias podrá ordenar la interrupción del anuncio
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CÓDIGO DE COMERCIO publicitario, o bien por requerimiento del Ministerio Público o de oficio. La medida tomada de este modo será ejecutoria pese a que puedan interponerse recursos.
La jurisdicción que haya ordenado el embargo o que haya sido encargada del asunto podrá ordenar su levantamiento. La medida dejará de tener efecto en caso de sobreseimiento o de absolución.
Las resoluciones que resuelvan sobre las demandas de embargo podrán ser objeto de un recurso ante la Cour d'appel.
La Cour d'appel resolverá en un plazo de diez días contados a partir de la recepción de la documentación. "
Artículo L954-6 (introducido por la Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004)
En el artículo L. 442-7, las palabras: "o cooperativa de empresa o de administración" serán suprimidas.
Artículo L954-7 (introducido por la Disposición nº 2004-823 de 19 de agosto de 2004 Artículo 3 II 2° Diario Oficial de 21 de agosto de 2004)
El artículo L. 443-1 quedará redactado del modo siguiente: I. - En el apartado 1º, las palabras: "citados en los artículos L. 326-1 a L. 326-3 del Código Rural" serán sustituidas
por las palabras: "previstos por las disposiciones de derecho rural aplicables en el territorio"; II. - En el apartado 3º, las palabras: "en el artículo 403 del Código General de Impuestos" serán sustituidas por las
palabras: "por las disposiciones del Código de Impuestos aplicable en el territorio". " III. - El apartado 4º quedará redactado del modo siguiente: "4º A setenta y cinco días tras el día de la entrega para las compras de bebidas alcohólicas sujetas a derechos de
circulación previstos por el Código de Impuestos aplicable en el territorio".
CAPITULO V Disposiciones de adaptación del libro V Artículos L955-1 a
L955-7
Artículo L955-1 En el artículo L. 511-61, las palabras: "o de las Entidades Territoriales serán sustituidas por las palabras: "o de las
islas Wallis y Futuna".
Artículo L955-2 El párrafo segundo del artículo L. 511-62 quedará redactado del modo siguiente: "La letra de resaca incluirá las cantidades indicadas en los artículos L. 511-45 y L. 511-46, además de los derechos
de corretaje y de timbre eventualmente previstos por las disposiciones del Código de Impuestos aplicable en las islas Wallis y Futuna".
Artículo L955-3 En los artículos L. 523-8 y L. 524-6, las palabras: "Artículos 1426 al 1429 del nuevo Código de Proceso Civil" serán
sustituidas por las palabras: "disposiciones de procedimiento civil aplicables localmente relativas a las ofertas de pago y a la consignación".
Artículo L955-4 El primer párrafo del artículo L. 524-19 quedará redactado del modo siguiente: "El importe de los derechos a percibir por el secretario del Tribunal de Primera Instancia competente en materia
mercantil será fijada por decreto". "
Artículo L955-5 En el primer párrafo del artículo L. 525-2, tras las palabras: "al impuesto mínimo alzado" se añadirán las palabras:
"según las condiciones vigentes en las islas Wallis y Futuna".
Artículo L955-6 En el punto II del artículo L. 525-9, las palabras: "al privilegio citado en el artículo L. 243-4 del Código de la
Seguridad Social" serán sustituidas por las palabras: "al privilegio organizado en beneficio de la Caja de Previsión Social del territorio".
Artículo L955-7 El artículo L. 525-18 quedará redactado del modo siguiente: I. - En el apartado 1º, la referencia al decreto nº 53-968 de 30 de septiembre de 1953 será sustituida por la
referencia nº 55-639 del 20 de mayo de 1955; II. - El apartado 2º quedará redactado del modo siguiente: "2º Los buques de mar así como las embarcaciones de navegación fluvial". "
CAPITULO VI Disposiciones de adaptación del libro VI Artículos L956-1 a
L956-9
Artículo L.956-1
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CÓDIGO DE COMERCIO (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Las medidas de aplicación previstas en los artículos L.625-1, L.626-3, L.626-5 a L.626-7, L.626-14 y L.626-16 serán determinadas por la asamblea territorial.
Artículo L.956-2 (Ley nº 2005-845 de 26 de julio de 2005 art. 195 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el artículo L.625-2, las palabras: "mencionada en el artículo L.432-7 del Código de Trabajo" serán sustituidas por las palabras: "respecto de las informaciones que tuvieran un carácter confidencial y hubieran sido presentadas como tales".
Artículo L.956-3 (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación del artículo L.622-24, les organismos citados en el artículo L.351-21 del Código de Trabajo serán los organismos locales que se encarguen del servicio de la prestación del seguro de desempleo y del cobro de las contribuciones.
Artículo L.956-4 (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación de los artículos L.622-24, L.622-26, L.625-3, L.625-4, L.626-5 a L.626-7, L.626-20 y L.662-4, las instituciones mencionadas en el artículo L.143-11-4 del Código de Trabajo serán las instituciones locales encargadas de la aplicación del régimen de seguros contra el riesgo de impago de los salarios, en caso de procedimiento de saneamiento judicial o de liquidación judicial.
Artículo L.956-5 (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Para la aplicación del artículo L.626-5 a L.626-7, las instituciones reguladas por el libro IX del Código de la Seguridad Social serán las instituciones locales de jubilación complementaria o suplementaria o de previsión previstas por las disposiciones aplicables en las islas Wallis y Futuna y relativas a los regímenes de seguridad y protección sociales.
Artículo L.956-6 (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el artículo L.626-14, la referencia al artículo 28 del Decreto nº 55-22 de 4 de enero de 1955 relativo a la reforma de la publicidad inmobiliaria será sustituida por la referencia a las disposiciones aplicables en el territorio y relativas a la publicidad de los derechos sobre los inmuebles que no sean ni privilegios ni hipotecas.
Artículo L.956-7 (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
En el artículo L.642-2, la obligación para el Tribunal de tener en cuenta las disposiciones contenidas en los apartados 1º, 2º, 3º y 4º del artículo L.331-3 del Código Rural se referirá a los siguientes requisitos:
"Observar el orden de prioridades establecido entre la instalación de los jóvenes agricultores y la ampliación de las explotaciones, teniendo en cuenta el interés económico y social del mantenimiento de la autonomía de la explotación objeto de la solicitud;
En caso de ampliación o de reunión de explotaciones, tener en cuenta las posibilidades de instalación en una explotación viable, la situación de las tierras en cuestión con relación a la sede de la explotación del o de los solicitantes, la superficie de los bienes que sean objeto de la solicitud y de las superficies ya aprovechadas por el o los solicitantes, así como por el arrendatario actual;
Considerar la situación personal del o de los solicitantes: edad, situación familiar y profesional y, en su caso, la del arrendatario actual, así como el número y la naturaleza de los puestos de trabajo asalariados en juego;
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CÓDIGO DE COMERCIO Tener en cuenta la estructura parcelaria de las explotaciones afectadas, tanto con relación a la sede de la
explotación, como para evitar que cambios en la posesión puedan poner en peligro los acondicionamientos ya realizados con ayuda de fondos públicos".
Artículo L.956-8 (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Tras la primera frase del párrafo primero del punto II del artículo L.641-1, se añadirá la siguiente frase: "En las mismas condiciones se le podrá nombrar como adjuntos, para que le asistan, uno o varios liquidadores."
Artículo L.956-9 (Ley nº 2003-7 de 3 de enero de 2003 art. 49 III Diario Oficial de 4 de enero de 2003) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190) (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
No será de aplicación el apartado 4° del punto III del artículo L.643-11.
CAPITULO VII Disposiciones de adaptación del libro VII Artículos L957-1 a
L957-3
Artículo L957-1 En los artículos L. 711-2 y L. 711-4, la palabra: "Gobierno" será sustituida por las palabras: "representante del
Estado en el territorio".
Artículo L957-2 En el párrafo tercero del artículo L. 711-6, las palabras: "o el Ayuntamiento" serán sustituidas por las palabras: "o el
territorio".
Artículo L957-3 En el artículo L. 712-1, las palabras: "por medio de una tasa adicional a la tasa profesional" serán sustituidas por
las palabras: "como se determina en las disposiciones del Código de Impuestos aplicable en las islas Wallis y Futuna".
CAPITULO VIII Disposiciones de adaptación del libro VIII Artículos L958-1 a
L958-2
Artículo L.958-1 (Ley nº 2005-845 de 26 de julio de 2005 art. 196 II Diario Oficial de 27 de julio de 2005, con entrada en vigor el 1 de enero de 2006, bajo reserva art. 190)
Los artículos L.814-1 a L.814-5 serán aplicables en lo que afecten a los administradores judiciales.
Artículo L958-2 (Introducido por la Disposición nº 2004-604 de 24 de junio de 2004 Artículo 58 III Diario Oficial de 26 de junio de 2004)
Para la aplicación en las islas Wallis y Futuna de los artículos L. 822-2 a L. 822-7, los términos enumerados a continuación serán sustituidos del modo siguiente:
1º "comisión regional de inscripción" por "comisión territorial de inscripción"; 2º "Cámara Regional de Cuentas" por "Cámara Territorial de Cuentas de Nueva Caledonia"; 3º "Cámara Regional de Disciplina" por "Cámara Territorial de Disciplina".
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Code de commerce
Partie législative
LIVRE Ier : Du commerce en général.
TITRE Ier : De l'acte de commerce.
Article L110-1
La loi répute actes de commerce :
1° Tout achat de biens meubles pour les revendre, soit en nature, soit après les avoir travaillés et mis en oeuvre ;
2° Tout achat de biens immeubles aux fins de les revendre, à moins que l'acquéreur n'ait agi en vue d'édifier un ou plusieurs bâtiments et de les vendre en bloc ou par locaux ;
3° Toutes opérations d'intermédiaire pour l'achat, la souscription ou la vente d'immeubles, de fonds de commerce, d'actions ou parts de sociétés immobilières ;
4° Toute entreprise de location de meubles ;
5° Toute entreprise de manufactures, de commission, de transport par terre ou par eau ;
6° Toute entreprise de fournitures, d'agence, bureaux d'affaires, établissements de ventes à l'encan, de spectacles publics ;
7° Toute opération de change, banque, courtage et tout service de paiement ;
8° Toutes les opérations de banques publiques ;
9° Toutes obligations entre négociants, marchands et banquiers ;
10° Entre toutes personnes, les lettres de change.
Article L110-2
La loi répute pareillement actes de commerce :
1° Toute entreprise de construction, et tous achats, ventes et reventes de bâtiments pour la navigation intérieure et extérieure ;
2° Toutes expéditions maritimes ;
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3° Tout achat et vente d'agrès, apparaux et avitaillements ;
4° Tout affrètement ou nolissement, emprunt ou prêt à la grosse ;
5° Toutes assurances et autres contrats concernant le commerce de mer ;
6° Tous accords et conventions pour salaires et loyers d'équipages ;
7° Tous engagements de gens de mer pour le service de bâtiments de commerce.
Article L110-3
A l'égard des commerçants, les actes de commerce peuvent se prouver par tous moyens à moins qu'il n'en soit autrement disposé par la loi.
Article L110-4
I.-Les obligations nées à l'occasion de leur commerce entre commerçants ou entre commerçants et non-commerçants se prescrivent par cinq ans si elles ne sont pas soumises à des prescriptions spéciales plus courtes.
II.-Sont prescrites toutes actions en paiement :
1° Pour nourriture fournie aux matelots par l'ordre du capitaine, un an après la livraison ;
2° Pour fourniture de matériaux et autres choses nécessaires aux constructions, équipements et avitaillements du navire, un an après ces fournitures faites ;
3° Pour ouvrages faits, un an après la réception des ouvrages.
III.-Les actions en paiement des salaires des officiers, matelots et autres membres de l'équipage se prescrivent par cinq ans .
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Partie législative
LIVRE Ier : Du commerce en général.
TITRE II : Des commerçants.
Chapitre Ier : De la définition et du statut.
Section 1 : De la qualité de commerçant.
Article L121-1
Sont commerçants ceux qui exercent des actes de commerce et en font leur profession habituelle.
Article L121-2
Le mineur, même émancipé, ne peut être commerçant.
Article L121-3
Le conjoint d'un commerçant n'est réputé lui-même commerçant que s'il exerce une activité commerciale séparée de celle de son époux.
Section 2 : Du conjoint du chef d'entreprise ou du partenaire lié au chef d'entreprise par un pacte civil de solidarité, travaillant dans l'entreprise familiale
Article L121-4
I. - Le conjoint du chef d'une entreprise artisanale, commerciale ou libérale qui y exerce de manière
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régulière une activité professionnelle opte pour l'un des statuts suivants :
1° Conjoint collaborateur ;
2° Conjoint salarié ;
3° Conjoint associé.
II. - En ce qui concerne les sociétés, le statut de conjoint collaborateur n'est autorisé qu'au conjoint du gérant associé unique ou du gérant associé majoritaire d'une société à responsabilité limitée ou d'une société d'exercice libéral à responsabilité limitée répondant à des conditions de seuils fixées par décret en Conseil d'Etat.
Le choix effectué par le conjoint du gérant associé majoritaire de bénéficier du statut de conjoint collaborateur est porté à la connaissance des associés lors de la première assemblée générale suivant la mention de ce statut auprès des organismes mentionnés au IV.
III. - Les droits et obligations professionnels et sociaux du conjoint résultent du statut pour lequel il a opté.
IV. - Le chef d'entreprise déclare le statut choisi par son conjoint auprès des organismes habilités à enregistrer l'immatriculation de l'entreprise. Seul le conjoint collaborateur fait l'objet d'une mention dans les registres de publicité légale à caractère professionnel.
V. - La définition du conjoint collaborateur, les modalités selon lesquelles le choix de son statut est mentionné auprès des organismes visés au IV et les autres conditions d'application du présent article sont fixées par décret en Conseil d'Etat.
Article L121-5
Une personne immatriculée au répertoire des métiers ou un commerçant ne peut, sans le consentement exprès de son conjoint, lorsque celui-ci participe à son activité professionnelle en qualité de conjoint travaillant dans l'entreprise, aliéner ou grever de droits réels les éléments du fonds de commerce ou de l'entreprise artisanale dépendant de la communauté, qui, par leur importance ou par leur nature, sont nécessaires à l'exploitation de l'entreprise, ni donner à bail ce fonds de commerce ou cette entreprise artisanale. Il ne peut, sans ce consentement exprès, percevoir les capitaux provenant de telles opérations.
Le conjoint qui n'a pas donné son consentement exprès à l'acte peut en demander l'annulation. L'action en nullité lui est ouverte pendant deux années à compter du jour où il a eu connaissance de l'acte, sans pouvoir jamais être intentée plus de deux ans après la dissolution de la communauté.
Article L121-6
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Le conjoint collaborateur, lorsqu'il est mentionné au registre du commerce et des sociétés, au répertoire des métiers ou au registre des entreprises tenu par les chambres de métiers d'Alsace et de Moselle est réputé avoir reçu du chef d'entreprise le mandat d'accomplir au nom de ce dernier les actes d'administration concernant les besoins de l'entreprise.
Par déclaration faite devant notaire, à peine de nullité, chaque époux a la faculté de mettre fin à la présomption de mandat, son conjoint présent ou dûment appelé. La déclaration notariée a effet, à l'égard des tiers, trois mois après que mention en aura été portée au registre du commerce et des sociétés, au répertoire des métiers ou au registre des entreprises tenu par les chambres de métiers d'Alsace et de Moselle. En l'absence de cette mention, elle n'est opposable aux tiers que s'il est établi que ceux-ci en ont eu connaissance.
La présomption de mandat cesse également de plein droit en cas d'absence présumée de l'un des époux, de séparation de corps ou de séparation de biens judiciaire, de même que lorsque les conditions prévues au premier alinéa ci-dessus ne sont plus remplies.
Article L121-7
Dans les rapports avec les tiers, les actes de gestion et d'administration accomplis pour les besoins de l'entreprise par le conjoint collaborateur sont réputés l'être pour le compte du chef d'entreprise et n'entraînent à la charge du conjoint collaborateur aucune obligation personnelle.
Article L121-8
La présente section est également applicable aux personnes qui sont liées au chef d'entreprise par un pacte civil de solidarité.
Chapitre II : Des commerçants étrangers.
Article L122-1
Un étranger qui exerce sur le territoire français, sans y résider, une profession commerciale, industrielle ou artisanale, dans des conditions rendant nécessaire son inscription ou sa mention au registre du commerce et des sociétés ou au répertoire des métiers, doit en faire la déclaration au préfet du département dans lequel il envisage d'exercer pour la première fois son activité dans des conditions définies par décret.
Les ressortissants des Etats membres de l'Union européenne, des autres Etats parties à l'accord sur l'Espace économique européen ou de la Confédération suisse sont dispensés de l'obligation de déclaration prévue au premier alinéa.
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Article L122-2
Toute infraction aux prescriptions de l'article L. 122-1 et à celles du décret d'application qu'il prévoit est punie d'un emprisonnement de six mois et d'une amende de 3 750 euros. Le tribunal peut, en outre, ordonner la fermeture de l'établissement.
Chapitre III : Des obligations générales des commerçants.
Section 1 : Du registre du commerce et des sociétés
Sous-section 1 : Des personnes tenues à l'immatriculation.
Article L123-1
I.-Il est tenu un registre du commerce et des sociétés auquel sont immatriculés, sur leur déclaration :
1° Les personnes physiques ayant la qualité de commerçant, même si elles sont tenues à immatriculation au répertoire des métiers ;
2° Les sociétés et groupements d'intérêt économique ayant leur siège dans un département français et jouissant de la personnalité morale conformément à l'article 1842 du code civil ou à l'article L. 251-4 ;
3° Les sociétés commerciales dont le siège est situé hors d'un département français et qui ont un établissement dans l'un de ces départements ;
4° Les établissements publics français à caractère industriel ou commercial ;
5° Les autres personnes morales dont l'immatriculation est prévue par les dispositions législatives ou réglementaires ;
6° Les représentations commerciales ou agences commerciales des Etats, collectivités ou établissements publics étrangers établis dans un département français.
II.-Figurent au registre, pour être portés à la connaissance du public, les inscriptions et actes ou pièces déposés prévus par décret en Conseil d'Etat.
Article L123-1-1
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Par dérogation à l'article L. 123-1, les personnes physiques exerçant une activité commerciale à titre principal ou complémentaire sont dispensées de l'obligation de s'immatriculer au registre du commerce et des sociétés tant qu'elles bénéficient du régime prévu à l'article L. 133-6-8 du code de la sécurité sociale.
Un décret en Conseil d'Etat précise les conditions d'application du présent article et, notamment, les modalités de déclaration d'activité, en dispense d'immatriculation, auprès du centre de formalités des entreprises compétent, les conditions de l'information des tiers sur l'absence d'immatriculation, ainsi que les modalités de déclaration d'activité consécutives au dépassement de seuil.
Les personnes mentionnées au premier alinéa dont l'activité principale est salariée ne peuvent exercer à titre complémentaire auprès des clients de leur employeur, sans l'accord de celui-ci, l'activité professionnelle prévue par leur contrat de travail.
Article L123-2
Nul ne peut être immatriculé au registre s'il ne remplit les conditions nécessaires à l'exercice de son activité. Les personnes morales doivent, en outre, avoir accompli les formalités prescrites par la législation et la réglementation en vigueur les concernant.
Article L123-3
Faute par un commerçant personne physique de requérir son immatriculation dans le délai prescrit, le juge commis soit d'office, soit à la requête du procureur de la République ou de toute personne justifiant y avoir intérêt, rend une ordonnance lui enjoignant de demander son immatriculation.
Dans les mêmes conditions, le juge peut enjoindre à toute personne immatriculée au registre du commerce et des sociétés qui ne les aurait pas requises dans les délais prescrits, de faire procéder soit aux mentions complémentaires ou rectifications qu'elle doit y faire porter, soit aux mentions ou rectifications nécessaires en cas de déclarations inexactes ou incomplètes, soit à la radiation.
Le greffier d'une juridiction qui rend une décision impliquant l'obligation pour une personne de s'immatriculer doit notifier cette décision au greffier du tribunal de commerce dans le ressort duquel l'intéressé a son siège ou son établissement principal. Le greffier du tribunal de commerce destinataire de la décision saisit le juge commis à la surveillance du registre.
Article L123-4
Le fait pour toute personne tenue de requérir une immatriculation, une mention complémentaire ou rectificative, ou une radiation au registre du commerce et des sociétés, de ne pas, sans excuse jugée valable, dans les quinze jours de la date à laquelle est devenue définitive l'ordonnance rendue par le juge commis à la surveillance du registre lui enjoignant de requérir l'une de ces formalités, déférer à cette injonction, est puni d'une amende de 3750 euros.
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Le tribunal peut, en outre, priver l'intéressé, pendant un temps qui n'excédera pas cinq ans, du droit de vote et d'éligibilité aux élections des tribunaux de commerce, chambres de commerce et d'industrie et conseils de prud'hommes.
Le tribunal ordonne que l'immatriculation, les mentions ou la radiation devant figurer au registre du commerce et des sociétés y seront portées dans un délai déterminé, à la requête de l'intéressé.
Article L123-5
Le fait de donner, de mauvaise foi, des indications inexactes ou incomplètes en vue d'une immatriculation, d'une radiation ou d'une mention complémentaire ou rectificative au registre du commerce et des sociétés est puni d'une amende de 4500 euros et d'un emprisonnement de six mois.
Les dispositions des deuxième et troisième alinéas de l'article L. 123-4 sont applicables dans les cas prévus au présent article.
Article L123-5-1
A la demande de tout intéressé ou du ministère public, le président du tribunal, statuant en référé, peut enjoindre sous astreinte au dirigeant de toute personne morale de procéder au dépôt des pièces et actes au registre du commerce et des sociétés auquel celle-ci est tenue par des dispositions législatives ou réglementaires.
Le président peut, dans les mêmes conditions et à cette même fin, désigner un mandataire chargé d'effectuer ces formalités.
Sous-section 2 : Tenue du registre et effets attachés à l'immatriculation.
Article L123-6
Le registre du commerce et des sociétés est tenu par le greffier de chaque tribunal de commerce, sous la surveillance du président ou d'un juge commis à cet effet, qui sont compétents pour toutes contestations entre l'assujetti et le greffier.
Article L123-7
L'immatriculation d'une personne physique emporte présomption de la qualité de commerçant.
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Toutefois, cette présomption n'est pas opposable aux tiers et administrations qui apportent la preuve contraire. Les tiers et administrations ne sont pas admis à se prévaloir de la présomption s'ils savaient que la personne immatriculée n'était pas commerçante.
Article L123-8
La personne assujettie à immatriculation qui n'a pas requis cette dernière à l'expiration d'un délai de quinze jours à compter du commencement de son activité, ne peut se prévaloir, jusqu'à immatriculation, de la qualité de commerçant tant à l'égard des tiers que des administrations publiques. Toutefois, elle ne peut invoquer son défaut d'inscription au registre pour se soustraire aux responsabilités et aux obligations inhérentes à cette qualité.
Sans préjudice de l'application de l'article L. 144-7, le commerçant inscrit qui cède son fonds ou qui en concède l'exploitation notamment sous forme de location-gérance ne peut opposer la cessation de son activité commerciale, pour se soustraire aux actions en responsabilité dont il est l'objet du fait des obligations contractées par son successeur dans l'exploitation du fonds, qu'à partir du jour où a été opérée la radiation ou la mention correspondante.
Article L123-9
La personne assujettie à immatriculation ne peut, dans l'exercice de son activité, opposer ni aux tiers ni aux administrations publiques, qui peuvent toutefois s'en prévaloir, les faits et actes sujets à mention que si ces derniers ont été publiés au registre.
En outre, la personne assujettie à un dépôt d'actes ou de pièces en annexe au registre ne peut les opposer aux tiers ou aux administrations, que si la formalité correspondante a été effectuée. Toutefois, les tiers ou les administrations peuvent se prévaloir de ces actes ou pièces.
Les dispositions des alinéas précédents sont applicables aux faits ou actes sujets à mention ou à dépôt même s'ils ont fait l'objet d'une autre publicité légale. Ne peuvent toutefois s'en prévaloir les tiers et administrations qui avaient personnellement connaissance de ces faits et actes.
Article L123-9-1
Le greffier du tribunal ou l'organisme mentionné au dernier alinéa de l'article 2 de la loi n° 94-126 du 11 février 1994 relative à l'initiative et à l'entreprise individuelle délivre gratuitement un récépissé de dépôt de dossier de création d'entreprise à toute personne assujettie à l'immatriculation au registre, dès que celle-ci a déposé un dossier de demande d'immatriculation complet. Ce récépissé permet d'accomplir, sous la responsabilité personnelle de la personne physique ayant la qualité de commerçant ou qui agit au nom de la société en formation, les démarches nécessaires auprès des organismes publics et des organismes privés chargés d'une mission de service public. Il comporte la mention : " En attente d'immatriculation ".
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Les conditions d'application du présent article sont définies par décret en Conseil d'Etat.
Sous-section 3 : Domiciliation des personnes immatriculées.
Paragraphe 1 : Dispositions applicables aux personnes physiques
Article L123-10
Les personnes physiques demandant leur immatriculation au registre du commerce et des sociétés ou au répertoire des métiers doivent déclarer l'adresse de leur entreprise et en justifier la jouissance. Elles peuvent notamment domicilier leur entreprise dans des locaux occupés en commun par plusieurs entreprises dans des conditions fixées par décret en Conseil d'Etat. Ce décret précise, en outre, les équipements ou services requis pour justifier la réalité de l'installation de l'entreprise domiciliée.
Les personnes physiques peuvent déclarer l'adresse de leur local d'habitation et y exercer une activité, dès lors qu'aucune disposition législative ou stipulation contractuelle ne s'y oppose.
Lorsqu'elles ne disposent pas d'un établissement, les personnes physiques peuvent, à titre exclusif d'adresse de l'entreprise, déclarer celle de leur local d'habitation. Cette déclaration n'entraîne ni changement d'affectation des locaux, ni application du statut des baux commerciaux.
Paragraphe 2 : Dispositions applicables aux personnes morales
Article L123-11
Toute personne morale demandant son immatriculation au registre du commerce et des sociétés doit justifier de la jouissance du ou des locaux où elle installe, seule ou avec d'autres, le siège de l'entreprise, ou, lorsque celui-ci est situé à l'étranger, l'agence, la succursale ou la représentation établie sur le territoire français.
La domiciliation d'une personne morale dans des locaux occupés en commun par plusieurs entreprises est autorisée dans des conditions fixées par décret en Conseil d'Etat. Ce décret précise, en outre, les équipements ou services requis pour justifier la réalité du siège de la personne morale domiciliée.
Article L123-11-1
Toute personne morale est autorisée à installer son siège au domicile de son représentant légal et y exercer une activité, sauf dispositions législatives ou stipulations contractuelles contraires.
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Lorsque la personne morale est soumise à des dispositions législatives ou stipulations contractuelles mentionnées à l'alinéa précédent, son représentant légal peut en installer le siège à son domicile, pour une durée ne pouvant ni excéder cinq ans à compter de la création de celle-ci, ni dépasser le terme légal, contractuel ou judiciaire de l'occupation des locaux.
Dans ce cas, elle doit, préalablement au dépôt de sa demande d'immatriculation ou de modification d'immatriculation, notifier par écrit au bailleur, au syndicat de la copropriété ou au représentant de l'ensemble immobilier son intention d'user de la faculté ainsi prévue.
Avant l'expiration de la période mentionnée au deuxième alinéa, la personne doit, sous peine de radiation d'office, communiquer au greffe du tribunal les éléments justifiant son changement de situation, selon les modalités fixées par décret en Conseil d'Etat.
Il ne peut résulter des dispositions du présent article ni le changement de destination de l'immeuble, ni l'application du statut des baux commerciaux.
Paragraphe 3 : Dispositions communes.
Article L123-11-2
L'activité de domiciliation ne peut être exercée dans un local à usage d'habitation principale ou à usage mixte professionnel.
Article L123-11-3
I. # Nul ne peut exercer l'activité de domiciliation s'il n'est préalablement agréé par l'autorité administrative, avant son immatriculation au registre du commerce et des sociétés.
II. # L'agrément n'est délivré qu'aux personnes qui satisfont aux conditions suivantes :
1° Justifier la mise à disposition des personnes domiciliées de locaux dotés d'une pièce propre à assurer la confidentialité nécessaire et à permettre une réunion régulière des organes chargés de la direction, de l'administration ou de la surveillance de l'entreprise ainsi que la tenue, la conservation et la consultation des livres, registres et documents prescrits par les lois et règlements ;
2° Justifier être propriétaire des locaux mis à la disposition de la personne domiciliée ou titulaire d'un bail commercial de ces locaux ;
3° N'avoir pas fait l'objet d'une condamnation définitive :
a) Pour crime ;
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b) A une peine d'au moins trois mois d'emprisonnement sans sursis pour :
# l'une des infractions prévues au titre Ier du livre III du code pénal et pour les délits prévus par des lois spéciales et punis des peines prévues pour l'escroquerie et l'abus de confiance ;
# recel ou l'une des infractions assimilées au recel ou voisines de celui-ci, prévues à la section 2 du chapitre Ier du titre II du livre III du code pénal ;
# blanchiment ;
# corruption active ou passive, trafic d'influence, soustraction et détournement de biens ;
# faux, falsification de titres ou autres valeurs fiduciaires émises par l'autorité publique, falsification des marques de l'autorité ;
# participation à une association de malfaiteurs ;
# trafic de stupéfiants ;
# proxénétisme ou l'une des infractions prévues par les sections 2 et 2 bis du chapitre V du titre II du livre II du code pénal ;
# l'une des infractions prévues à la section 3 du chapitre V du titre II du livre II du code pénal ;
# l'une des infractions à la législation sur les sociétés commerciales prévues au titre IV du livre II du présent code ;
# banqueroute ;
# pratique de prêt usuraire ;
# l'une des infractions prévues par la loi du 21 mai 1836 portant prohibition des loteries, par la loi du 15 juin 1907 relative aux casinos et par la loi n° 83-628 du 12 juillet 1983 relative aux jeux de hasard ;
# infraction à la législation et à la réglementation des relations financières avec l'étranger ;
# fraude fiscale ;
# l'une des infractions prévues aux articles L. 115-16 et L. 115-18, L. 115-24, L. 115-30, L. 121-6, L. 121-28, L. 122-8 à L. 122-10, L. 213-1 à L. 213-5, L. 217-1 à L. 217-3, L. 217-6 à L. 217-10 du
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code de la consommation ;
# l'une des infractions prévues aux articles L. 8221-1 et L. 8221-3 du code du travail ;
4° N'avoir pas été l'auteur de faits ayant donné lieu, depuis moins de cinq ans, à une sanction disciplinaire ou administrative de retrait de l'agrément de l'activité de domiciliation ;
5° N'avoir pas été frappé de faillite personnelle ou de l'une des mesures d'interdiction ou de déchéance prévues au livre VI du présent code.
Article L123-11-4
L'agrément n'est délivré aux personnes morales que si les actionnaires ou associés détenant au moins 25 % des voix, des parts ou des droits de vote et les dirigeants satisfont aux conditions posées aux 3°, 4° et 5° de l'article L. 123-11-3.
Lorsqu'une personne exploite un ou plusieurs établissements secondaires, elle justifie que les conditions posées au 1° et 2° de l'article L. 123-11-3 sont réalisées pour chacun des établissements exploités.
Tout changement important dans l'activité, l'installation, l'organisation ou la direction de la personne soumise à agrément doit être porté à la connaissance de l'autorité administrative.
Article L123-11-5
Les personnes exerçant l'activité de domiciliation mettent en œuvre les obligations relatives à la lutte contre le blanchiment des capitaux et le financement du terrorisme définies au chapitre Ier du titre VI du livre V du code monétaire et financier.
Article L123-11-6
Sont qualifiés pour procéder, dans le cadre de leurs compétences respectives, à la recherche et à la constatation des infractions aux dispositions des articles de la présente sous-section et des règlements pris pour leur application :
1° Les agents mentionnés à l'article L. 243-7 du code de la sécurité sociale ;
2° Les inspecteurs du travail et les contrôleurs du travail et fonctionnaires de contrôle assimilés au sens de l'article L. 8113-7 du code du travail ;
3° Les agents des caisses de mutualité sociale agricole mentionnés à l'article L. 724-7 du code rural.
A cet effet, ils agissent, chacun pour ce qui le concerne, conformément aux règles de recherche et de constatation des infractions déterminées par les dispositions du code rural, du code de la sécurité sociale et du code du travail qui leur sont applicables.
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Les infractions sont constatées par des procès-verbaux faisant foi jusqu'à preuve du contraire et transmis directement au parquet.
Article L123-11-7
Les conditions d'application du présent paragraphe sont déterminées par décret en Conseil d'Etat.
Article L123-11-8
Est puni d'un emprisonnement de six mois et d'une amende de 7 500 € le fait, pour toute personne, d'exercer l'activité de domiciliation mentionnée à l'article L. 123-11-2 sans avoir préalablement obtenu l'agrément prévu à l'article L. 123-11-3 ou après le retrait ou la suspension de cet agrément.
Section 2 : De la comptabilité des commerçants
Sous-section 1 : Des obligations comptables applicables à tous les commerçants.
Article L123-12
Toute personne physique ou morale ayant la qualité de commerçant doit procéder à l'enregistrement comptable des mouvements affectant le patrimoine de son entreprise. Ces mouvements sont enregistrés chronologiquement.
Elle doit contrôler par inventaire, au moins une fois tous les douze mois, l'existence et la valeur des éléments actifs et passifs du patrimoine de l'entreprise.
Elle doit établir des comptes annuels à la clôture de l'exercice au vu des enregistrements comptables et de l'inventaire. Ces comptes annuels comprennent le bilan, le compte de résultat et une annexe, qui forment un tout indissociable.
Article L123-13
Le bilan décrit séparément les éléments actifs et passifs de l'entreprise, et fait apparaître, de façon distincte, les capitaux propres.
Le compte de résultat récapitule les produits et les charges de l'exercice, sans qu'il soit tenu compte de leur date d'encaissement ou de paiement. Il fait apparaître, par différence après déduction des amortissements et des provisions, le bénéfice ou la perte de l'exercice. Les produits et les charges, classés par catégorie, doivent être présentés soit sous forme de tableaux, soit sous forme de liste.
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Le montant des engagements de l'entreprise en matière de pension, de compléments de retraite, d'indemnités et d'allocations en raison du départ à la retraite ou avantages similaires des membres ou associés de son personnel et de ses mandataires sociaux est indiqué dans l'annexe. Par ailleurs, les entreprises peuvent décider d'inscrire au bilan, sous forme de provision, le montant correspondant à tout ou partie de ces engagements.
L'annexe complète et commente l'information donnée par le bilan et le compte de résultat.
Article L123-14
Les comptes annuels doivent être réguliers, sincères et donner une image fidèle du patrimoine, de la situation financière et du résultat de l'entreprise.
Lorsque l'application d'une prescription comptable ne suffit pas pour donner l'image fidèle mentionnée au présent article, des informations complémentaires doivent être fournies dans l'annexe.
Si, dans un cas exceptionnel, l'application d'une prescription comptable se révèle impropre à donner une image fidèle du patrimoine, de la situation financière ou du résultat, il doit y être dérogé. Cette dérogation est mentionnée à l'annexe et dûment motivée, avec l'indication de son influence sur le patrimoine, la situation financière et le résultat de l'entreprise.
Article L123-15
Le bilan, le compte de résultat et l'annexe doivent comprendre autant de rubriques et de postes qu'il est nécessaire pour donner une image fidèle du patrimoine, de la situation financière et du résultat de l'entreprise. Chacun des postes du bilan et du compte de résultat comporte l'indication du chiffre relatif au poste correspondant de l'exercice précédent.
Les éléments composant les capitaux propres sont fixés par décret. Le classement des éléments du bilan et du compte de résultat ainsi que les mentions à inclure dans l'annexe sont fixés par un règlement de l'Autorité des normes comptables.
Article L123-16
Les commerçants, personnes physiques ou morales, peuvent, dans des conditions fixées par un règlement de l'Autorité des normes comptables, adopter une présentation simplifiée de leurs comptes annuels lorsqu'ils ne dépassent pas à la clôture de l'exercice des chiffres fixés par décret pour deux des critères suivants : le total de leur bilan, le montant net de leur chiffre d'affaires ou le nombre moyen de salariés permanents employés au cours de l'exercice. Ils perdent cette faculté lorsque cette condition n'est pas remplie pendant deux exercices successifs.
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Article L123-17
A moins qu'un changement exceptionnel n'intervienne dans la situation du commerçant, personne physique ou morale, la présentation des comptes annuels comme des méthodes d'évaluation retenues ne peuvent être modifiées d'un exercice à l'autre. Si des modifications interviennent, elles sont décrites et justifiées dans l'annexe.
Article L123-18
A leur date d'entrée dans le patrimoine de l'entreprise, les biens acquis à titre onéreux sont enregistrés à leur coût d'acquisition, les biens acquis à titre gratuit à leur valeur vénale et les biens produits à leur coût de production.
Pour les éléments d'actif immobilisés, les valeurs retenues dans l'inventaire doivent, s'il y a lieu, tenir compte des plans d'amortissement. Si la valeur d'un élément de l'actif devient inférieure à sa valeur nette comptable, cette dernière est ramenée à la valeur d'inventaire à la clôture de l'exercice, que la dépréciation soit définitive ou non.
Les biens fongibles sont évalués soit à leur coût moyen pondéré d'acquisition ou de production, soit en considérant que le premier bien sorti est le premier bien entré.
La plus-value constatée entre la valeur d'inventaire d'un bien et sa valeur d'entrée n'est pas comptabilisée. S'il est procédé à une réévaluation de l'ensemble des immobilisations corporelles et financières, l'écart de réévaluation entre la valeur actuelle et la valeur nette comptable ne peut être utilisé à compenser les pertes ; il est inscrit distinctement au passif du bilan.
Article L123-19
Les éléments d'actif et de passif doivent être évalués séparément.
Aucune compensation ne peut être opérée entre les postes d'actif et de passif du bilan ou entre les postes de charges et de produits du compte de résultat.
Le bilan d'ouverture d'un exercice doit correspondre au bilan de clôture de l'exercice précédent.
Article L123-20
Les comptes annuels doivent respecter le principe de prudence. Pour leur établissement, le commerçant, personne physique ou morale, est présumé poursuivre ses activités.
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Même en cas d'absence ou d'insuffisance du bénéfice, il doit être procédé aux amortissements et provisions nécessaires.
Il doit être tenu compte des risques et des pertes intervenus au cours de l'exercice ou d'un exercice antérieur, même s'ils sont connus entre la date de la clôture de l'exercice et celle de l'établissement des comptes.
Article L123-21
Seuls les bénéfices réalisés à la date de clôture d'un exercice peuvent être inscrits dans les comptes annuels. Peut être inscrit, après inventaire, le bénéfice réalisé sur une opération partiellement exécutée et acceptée par le cocontractant lorsque sa réalisation est certaine et qu'il est possible, au moyen de documents comptables prévisionnels, d'évaluer avec une sécurité suffisante le bénéfice global de l'opération.
Article L123-22
Les documents comptables sont établis en euros et en langue française.
Les documents comptables et les pièces justificatives sont conservés pendant dix ans.
Les documents comptables relatifs à l'enregistrement des opérations et à l'inventaire sont établis et tenus sans blanc ni altération d'aucune sorte, dans des conditions fixées par décret en Conseil d'Etat.
Article L123-23
La comptabilité régulièrement tenue peut être admise en justice pour faire preuve entre commerçants pour faits de commerce.
Si elle a été irrégulièrement tenue, elle ne peut être invoquée par son auteur à son profit.
La communication des documents comptables ne peut être ordonnée en justice que dans les affaires de succession, communauté, partage de société et en cas de redressement ou de liquidation judiciaires.
Article L123-24
Tout commerçant est tenu de se faire ouvrir un compte dans un établissement de crédit ou dans un bureau de chèques postaux.
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Sous-section 2 : Des obligations comptables applicables à certains commerçants, personnes physiques.
Article L123-25
Par dérogation aux dispositions des premier et troisième alinéas de l'article L. 123-12, les personnes physiques placées sur option ou de plein droit sous le régime réel simplifié d'imposition peuvent n'enregistrer les créances et les dettes qu'à la clôture de l'exercice et ne pas établir d'annexe.
Article L123-26
Par dérogation aux dispositions du deuxième alinéa de l'article L. 123-13, les personnes physiques placées sur option ou de plein droit sous le régime réel simplifié d'imposition peuvent inscrire au compte de résultat, en fonction de leur date de paiement, les charges dont la périodicité n'excède pas un an, à l'exclusion des achats.
Article L123-27
Par dérogation aux dispositions du troisième alinéa de l'article L. 123-18, les personnes physiques placées sur option ou de plein droit sous le régime réel simplifié d'imposition peuvent procéder à une évaluation simplifiée des stocks et des productions en cours, selon une méthode fixée par règlement de l'Autorité des normes comptables.
Article L123-28
Par dérogation aux dispositions des articles L. 123-12 à L. 123-23, les personnes physiques bénéficiant du régime défini à l'article 50-0 du code général des impôts peuvent ne pas établir de comptes annuels. Elles tiennent un livre mentionnant chronologiquement le montant et l'origine des recettes qu'elles perçoivent au titre de leur activité professionnelle. Elles tiennent également, lorsque leur commerce principal est de vendre des marchandises, objets, fournitures et denrées à emporter ou à consommer sur place, ou de fournir le logement, un registre récapitulé par année, présentant le détail de leurs achats. Un décret fixe les conditions dans lesquelles ce livre et ce registre sont tenus.
Section 3 : Des activités commerciales et artisanales ambulantes
Article L123-29
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Toute personne physique ou morale doit, pour exercer ou faire exercer par son conjoint ou ses préposés une activité commerciale ou artisanale ambulante hors du territoire de la commune où est situé son habitation ou son principal établissement, en faire la déclaration préalable auprès de l'autorité compétente pour délivrer la carte mentionnée au quatrième alinéa.
Il en va de même pour toute personne n'ayant ni domicile ni résidence fixes de plus de six mois, au sens de l'article 2 de la loi n° 69-3 du 3 janvier 1969 relative à l'exercice des activités ambulantes et au régime applicable aux personnes circulant en France sans domicile ni résidence fixe, entendant exercer ou faire exercer par son conjoint ou ses préposés une activité commerciale ou artisanale ambulante.
La déclaration mentionnée au premier alinéa est renouvelable périodiquement.
Cette déclaration donne lieu à délivrance d'une carte permettant l'exercice d'une activité ambulante.
Article L123-30
Outre les officiers et agents de police judiciaire, ont compétence pour constater par procès-verbal les contraventions prévues par le décret mentionné à l'article L. 123-31 :
1° Les agents de police judiciaire adjoints mentionnés au 2° de l'article 21 du code de procédure pénale ;
2° Les fonctionnaires chargés du contrôle des marchés et des halles situés sur le territoire de la commune sur laquelle le commerçant ou l'artisan ambulant exerce son activité commerciale ou artisanale, habilités à cette fin.
Article L123-31
Les modalités d'application de la présente section sont fixées par décret en Conseil d'Etat, notamment les conditions d'habilitation des agents mentionnés au 2° de l'article L. 123-30 et les modalités d'exercice de leur compétence.
Chapitre IV : Des sociétés coopératives de commerçants détaillants.
Article L124-1
Les sociétés coopératives de commerçants détaillants ont pour objet d'améliorer par l'effort commun de leurs associés les conditions dans lesquelles ceux-ci exercent leur activité commerciale. A cet effet, elles peuvent notamment exercer directement ou indirectement pour le compte de leurs associés les activités suivantes :
1° Fournir en totalité ou en partie à leurs associés les marchandises, denrées ou services, l'équipement et le matériel nécessaires à l'exercice de leur commerce, notamment par la constitution et l'entretien de tout stock de marchandises, la construction, l'acquisition ou la location ainsi que la gestion de magasins et entrepôts particuliers, l'accomplissement dans leurs établissements ou dans
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ceux de leurs associés de toutes opérations, transformations et modernisation utiles ;
2° Regrouper dans une même enceinte les commerces appartenant à leurs associés, créer et gérer tous services communs à l'exploitation de ces commerces, construire, acquérir ou louer les immeubles nécessaires à leur activité ou à celle des associés, et en assurer la gestion, le tout dans les conditions prévues par le chapitre V du présent titre ;
3° Dans le cadre des dispositions législatives concernant les activités financières, faciliter l'accès des associés et de leur clientèle aux divers moyens de financement et de crédit ;
4° Exercer les activités complémentaires à celles énoncées ci-dessus, et notamment fournir à leurs associés une assistance en matière de gestion technique, financière et comptable ;
5° Acheter des fonds de commerce dont, par dérogation aux dispositions de l'article L. 144-3, la location-gérance est concédée dans un délai de deux mois à un associé et qui, sous les sanctions prévues aux deuxième et troisième alinéas de l'article L. 124-15, doivent être rétrocédés dans un délai maximum de sept ans ;
6° Définir et mettre en oeuvre par tous moyens une politique commerciale commune propre à assurer le développement et l'activité de ses associés, notamment :
-par la mise en place d'une organisation juridique appropriée ;
-par la mise à disposition d'enseignes ou de marques dont elles ont la propriété ou la jouissance ;
-par la réalisation d'opérations commerciales publicitaires ou non pouvant comporter des prix communs ;
-par l'élaboration de méthodes et de modèles communs d'achat, d'assortiment et de présentation de produits, d'architecture et d'organisation des commerces ;
7° Prendre des participations même majoritaires dans des sociétés directement ou indirectement associées exploitant des fonds de commerce.
Article L124-2
Les sociétés coopératives de commerçants de détail ne peuvent admettre de tiers non associés à bénéficier de leurs services.
Toutefois, les sociétés coopératives de pharmaciens d'officine ne peuvent refuser leurs services en cas d'urgence, aux pharmaciens d'officine non associés et à tous les établissements publics ou privés où sont traités les malades, lorsque ces établissements sont régulièrement propriétaires d'une officine.
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Article L124-3
Les sociétés coopératives de commerçants de détail sont des sociétés anonymes à capital variable constituées et fonctionnant conformément aux dispositions du livre II, titre III, chapitre Ier. Elles sont régies par les dispositions du présent chapitre et par celles non contraires du livre II, titres Ier à IV et de la loi n° 47-1775 du 10 septembre 1947 portant statut de la coopération. Les dispositions du livre II, titres Ier à IV concernant la constitution des réserves légales leur sont applicables.
Peuvent être seules considérées comme sociétés coopératives de commerçants de détail ou unions de ces sociétés, et sont seules autorisées à prendre ce titre et à l'adjoindre à leur dénomination, les sociétés et unions constituées dans le but d'effectuer les opérations visées à l'article L. 124-1 et qui se conforment, pour leur constitution et leur fonctionnement, aux prescriptions du présent chapitre.
Article L124-4
Sans préjudice de l'application des dispositions de l'article 3 bis de la loi n° 47-1775 du 10 septembre 1947 portant statut de la coopération, tout commerçant, exerçant le commerce de détail, régulièrement établi sur le territoire d'un Etat étranger, peut être membre de coopératives de commerçants. Il en est de même des sociétés coopératives régies par le présent chapitre, ainsi que des entreprises immatriculées à la fois au répertoire des métiers et au registre du commerce et des sociétés. Les coopératives régies par le présent chapitre peuvent admettre en qualité d'associés des personnes physiques ou morales intéressées par leur activité et compétentes pour en connaître.
Les sociétés coopératives de commerçants de détail qui exercent les activités visées au 2° de l'article L. 124-1 peuvent, en outre, admettre en qualité d'associé toute personne visée à l'article L. 125-1.
Les commerçants de détail dont la coopérative est affiliée à une autre coopérative de commerçants de détail peuvent bénéficier directement des services de cette dernière.
Article L124-5
Les sociétés régies par le présent chapitre peuvent constituer entre elles des unions ayant les mêmes objets que ceux définis à l'article L. 124-1.
Ces unions doivent se conformer, pour leur constitution et leur fonctionnement, aux mêmes règles que lesdites sociétés. Le deuxième alinéa de l'article 9 de la loi du 10 septembre 1947 portant statut de la coopération leur est applicable.
Les unions de sociétés coopératives de commerçants de détail ne peuvent comprendre que des sociétés coopératives de détail ou leurs associés. Les commerçants détaillants dont la coopérative est affiliée à une union peuvent bénéficier directement des services de cette union.
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Les sociétés coopératives de commerçants de détail et leurs unions peuvent constituer des unions mixtes avec d'autres sociétés coopératives et leurs unions.
Par dérogation à l'article L. 225-1, le nombre des associés d'une union régie par le présent article peut être inférieur à sept.
Article L124-6
Les administrateurs ou les membres du directoire et du conseil de surveillance sont des personnes physiques ayant soit la qualité d'associé, à titre personnel, soit la qualité de président du conseil d'administration, de directeur général, de membre du directoire ou de gérant d'une société ayant elle-même la qualité d'associé.
Les fonctions des membres du conseil d'administration ou des membres du conseil de surveillance sont gratuites et n'ouvrent droit qu'au remboursement, sur justification, des frais, ainsi que, le cas échéant, au paiement d'une indemnité compensatrice du temps et du travail consacrés à l'administration de la coopérative.
Le président du conseil d'administration ou les membres du directoire ainsi que le président du conseil de surveillance peuvent recevoir une rémunération. Toutefois, ils ne peuvent être rémunérés au prorata des opérations faites ou des excédents réalisés que si ce mode de rémunération est prévu par les statuts. Ceux-ci précisent l'instance habilitée à fixer pour une durée n'excédant pas cinq années le maximum de rétributions annuelles.
Les décisions prises pour l'exécution de l'alinéa précédent sont ratifiées par l'assemblée générale annuelle qui suit la date à laquelle elles sont intervenues.
Article L124-7
Les statuts peuvent prévoir que des sociétés coopératives de commerçants détaillants sont associées dans les conditions prévues à l'article 3 bis de la loi du 10 septembre 1947 portant statut de la coopération. Dans ce cas, elles ne peuvent recourir aux services de la société coopérative dont elles sont associées.
Article L124-8
L'assemblée générale délibère valablement lorsque le tiers des associés existants à la date de la convention sont présents ou représentés.
Toutefois, les assemblées convoquées en vue de modifier les statuts ne délibèrent valablement que si la moitié au moins des associés existants à la date de la convocation sont présents ou représentés.
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Les associés qui ont exprimé leur suffrage par correspondance, quand les statuts les y autorisent, comptent pour la détermination du quorum.
Lorsque le quorum n'est pas atteint, une nouvelle assemblée est convoquée. Elle délibère valablement quel que soit le nombre des associés présents ou représentés.
Article L124-9
Les délibérations de l'assemblée générale sont prises à la majorité des voix dont disposent les associés présents ou représentés. Toutefois, une majorité des deux tiers des voix des associés présents ou représentés est requise pour toute modification des statuts.
Si la coopérative exerce les activités prévues au 2° de l'article L. 124-1, il est dérogé à cette disposition dans les conditions prévues par l'article L. 125-10.
Article L124-10
L'exclusion d'un associé peut être prononcée, selon le cas, par le conseil d'administration ou par le conseil de surveillance, l'intéressé étant dûment entendu.
Tout associé frappé d'une mesure d'exclusion a la possibilité de faire appel de cette décision devant l'assemblée générale qui statue sur son recours lors de la première réunion ordinaire qui suit la notification de l'exclusion. Celle-ci prend effet au jour de la notification de son acceptation par l'assemblée générale.
Toutefois, le conseil d'administration ou le conseil de surveillance, selon le cas, peut, lorsque l'intérêt de la société l'exige, suspendre l'exercice des droits que l'associé exclu tient de sa qualité de coopérateur jusqu'à notification à ce dernier de la décision de l'assemblée générale, sans que la durée de cette suspension puisse excéder une année.
Si la décision tendant à exclure un associé n'est pas justifiée par un motif sérieux et légitime, le tribunal, saisi dans le délai d'un mois à compter de la notification du rejet du recours de l'associé par l'assemblée générale, peut, soit réintégrer l'associé indûment exclu, soit lui allouer des dommages et intérêts, soit prononcer l'une et l'autre de ces mesures.
Lorsque la coopérative exerce les activités prévues au 2° de l'article L. 124-1, les dispositions du présent article ne sont pas applicables. Il est fait application des articles L. 125-15 et L. 125-16.
Article L124-11
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S'il s'agit d'une coopérative exerçant les activités prévues au 2° de l'article L. 124-1, le remboursement des parts sociales de l'associé qui se retire ou qui est exclu s'effectue, par dérogation à l'article 18 de la loi du 10 septembre 1947 portant statut de la coopération, dans les conditions prévues par les articles L. 125-17 et L. 125-18.
Il reste cependant tenu pendant cinq années à compter du jour où il a définitivement perdu la qualité d'associé, tant envers la coopérative qu'à l'égard des tiers, de toutes les obligations existant à la clôture de l'exercice au cours duquel il a quitté la coopérative. Le conseil d'administration ou le conseil de surveillance, selon le cas, peut, pendant cinq ans au plus, conserver tout ou partie des sommes dues à l'ancien associé, en application de l'alinéa précédent, dans la limite du montant nécessaire à la garantie des obligations dont il est tenu en application du présent alinéa, et à moins que l'intéressé ne fournisse des sûretés suffisantes.
Article L124-12
L'assemblée générale ordinaire peut, en statuant aux conditions de quorum et de majorité de l'assemblée générale extraordinaire, transformer en parts sociales tout ou partie des ristournes bloquées en comptes individualisés ainsi que tout ou partie des ristournes distribuables aux coopérateurs au titre de l'exercice écoulé.
Dans ce dernier cas, les droits de chaque coopérateur dans l'attribution des parts résultant de cette augmentation de capital sont identiques à ceux qu'il aurait eus dans la distribution des ristournes.
Article L124-13
La caisse centrale de crédit coopératif est autorisée à effectuer toutes opérations financières en faveur des sociétés constituées conformément aux dispositions du présent chapitre, notamment à mettre à leur disposition les fonds qui lui sont spécialement attribués ou qu'elle peut se procurer sous forme d'emprunts ou par le réescompte des effets souscrits, à donner son aval ou à se porter caution pour garantir leurs emprunts, à recevoir et à gérer leurs dépôts de fonds.
Article L124-14
En cas de dissolution d'une société coopérative ou d'une union régie par les dispositions du présent chapitre et sous réserve des dispositions des alinéas suivants du présent article, l'excédent net de l'actif sur le capital est dévolu soit à d'autres sociétés coopératives ou unions de coopératives, soit à des oeuvres d'intérêt général ou professionnel.
Toutefois, une société coopérative ou une union peut être autorisée par arrêté du ministre chargé de l'économie et des finances, pris après avis du Conseil supérieur de la coopération, à répartir l'excédent net de l'actif à ses associés. Cette répartition ne peut comprendre la part de l'excédent net d'actif qui résulte de l'aide accordée directement ou indirectement à la société ou à l'union par l'Etat ou par une collectivité publique. Cette part doit être reversée dans les conditions prévues par l'arrêté
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d'autorisation.
La répartition entre les associés de l'excédent net d'actif est de plein droit lorsque la société coopérative exerce les activités visées au 2° de l'article L. 124-1.
Article L124-15
Tout groupement de commerçants détaillants établi en vu de l'exercice d'une ou plusieurs activités visées aux 1°,3° et 4° de l'article L. 124-1 doit, s'il n'a pas adopté la forme de société coopérative de commerçants détaillants régie par les dispositions du présent chapitre, être constitué sous la forme de société anonyme, de société à responsabilité limitée, de groupement d'intérêt économique ou de groupement européen d'intérêt économique.
Est puni d'une amende de 9000 euros le fait de constituer un groupement de commerçants détaillants en infraction aux dispositions de l'alinéa précédent.
Le tribunal peut en outre ordonner la cessation des opérations de l'organisme en cause et, s'il y a lieu, la confiscation des marchandises achetées et la fermeture des locaux utilisés.
Article L124-16
Les sociétés coopératives d'achat en commun de commerçants détaillants et leurs unions constituées sous l'empire de la loi n° 49-1070 du 2 août 1949 sont considérées comme satisfaisant aux dispositions du présent chapitre sans qu'il soit nécessaire qu'elles modifient leurs statuts.
Toutefois, les sociétés bénéficiaires des dispositions de l'alinéa précédent doivent procéder à la mise en conformité de leurs statuts à l'occasion de toute modification ultérieure desdits statuts.
Chapitre V : Des magasins collectifs de commerçants indépendants
Section 1 : De la constitution du magasin collectif
Article L125-1
Les dispositions du présent chapitre s'appliquent aux personnes physiques ou morales réunies dans une même enceinte, sous une même dénomination, pour exploiter, selon des règles communes, leur fond de commerce ou leur entreprise immatriculée au répertoire des métiers sans en aliéner la propriété, créant ainsi un magasin collectif de commerçants indépendants.
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Article L125-2
Les personnes visées à l'article L. 125-1 constituent, sous forme de groupement d'intérêt économique ou de société anonyme à capital variable ou de société coopérative de commerçants détaillants, une personne morale qui a la propriété et la jouissance ou seulement la jouissance des bâtiments et aires annexes du magasin collectif, définit et met en oeuvre la politique commune, organise et gère les services communs.
Le groupement d'intérêt économique ou la société, propriétaire de tout ou partie des sols, bâtiments et aires annexes du magasin collectif, ne peut rétrocéder tout ou partie de ces biens immobiliers à ses membres pendant l'existence dudit magasin.
Peuvent seuls être considérés comme magasins collectifs de commerçants indépendants, et sont seuls autorisés à prendre ce titre et à l'adjoindre à leur dénomination, les groupements d'intérêt économique, les sociétés anonymes à capital variable et les sociétés coopératives de commerçants détaillants qui se conforment, pour leur constitution et leur fonctionnement, aux prescriptions du présent chapitre.
Article L125-3
Le groupement d'intérêt économique ou la société qui a recours au crédit-bail est considéré comme utilisateur au sens de l'article 5 b de l'ordonnance n° 67-837 du 28 septembre 1967.
Article L125-4
Chaque membre du groupement d'intérêt économique ou de la société est titulaire de parts ou d'actions non dissociables de l'utilisation d'un emplacement déterminé par le contrat constitutif ou les statuts, et bénéficie de services communs.
Le contrat constitutif ou les statuts peuvent attribuer à tout titulaire un autre emplacement en fonction d'activités saisonnières.
L'assemblée des membres ou l'assemblée générale, selon le cas, est seule compétente pour modifier, avec l'accord des intéressés, les emplacements ainsi attribués.
Les dispositions du présent chapitre relatives aux parts sociales sont applicables aux actions visées au premier alinéa ci-dessus.
Article L125-5
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Lorsqu'un fonds de commerce ou une entreprise immatriculée au répertoire des métiers sont transférés ou créés dans le magasin collectif, il n'en est pas fait apport au groupement ou à la société en représentation des parts attribuées à leur propriétaire. Les parts du groupement ou de la société ne représentent pas la valeur du fonds ou de l'entreprise. Sont également prohibés tous apports autres qu'en espèces.
Article L125-6
En cas de location-gérance du fonds de commerce ou de l'entreprise immatriculée au répertoire des métiers, le bailleur est seul membre du groupement ou de la société.
Le transfert dans le magasin collectif d'un fonds ou d'une entreprise préexistante ne peut être effectué qu'avec l'accord du locataire gérant.
Article L125-7
Le propriétaire d'un fonds de commerce grevé du privilège ou d'un nantissement prévu par les chapitres Ier à III du titre IV du présent livre doit, préalablement à son adhésion à un magasin collectif et au transfert de ce fonds dans ledit magasin, accomplir les formalités de publicité prévues aux articles L. 141-21 et L. 141-22.
Si le créancier titulaire du privilège ou du nantissement n'a pas notifié d'opposition par voie d'inscription au greffe dans les dix jours de la dernière en date des publications prévues aux articles L. 141-12 et L. 141-13, il est réputé avoir donné son accord à l'adhésion du propriétaire du fonds.
En cas d'opposition, la mainlevée de celle-ci est ordonnée en justice, si le propriétaire du fonds justifie que les sûretés dont dispose le créancier ne sont pas diminuées par le fait de l'adhésion au magasin collectif ou que des garanties au moins équivalentes lui sont offertes. A défaut de mainlevée de l'opposition, le commerçant ne peut adhérer au magasin collectif tant qu'il demeure propriétaire du fonds.
Article L125-8
Le contrat constitutif ou les statuts, selon le cas, doivent, à peine de nullité, et sous la responsabilité solidaire des signataires, contenir la mention expresse, soit qu'aucun fonds n'est grevé du privilège ou d'un nantissement prévu aux chapitres Ier à III du titre IV du présent livre, soit, dans le cas contraire, qu'il n'a pas été formé d'opposition préalablement à l'adhésion d'un des membres ou que mainlevée en a été ordonnée par justice.
Article L125-9
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Les magasins collectifs de commerçants indépendants déjà créés par l'intermédiaire d'une personne morale peuvent, par voie d'adaptation ou de transformation, se placer sous le régime prévu par le présent chapitre.
Tout membre peut, par voie de référé, demander la désignation d'un mandataire spécialement chargé de convoquer l'assemblée aux fins de statuer sur ces adaptations ou transformations.
Nonobstant toute disposition contraire, ces décisions sont prises à la majorité en nombre des membres composant la personne morale. Ceux qui n'y ont pas concouru peuvent, toutefois, se retirer en demandant le remboursement de leurs titres, actions ou parts, dans les conditions prévues aux articles L. 125-17 et L. 125-18.
Section 2 : De l'administration du magasin collectif
Article L125-10
Un règlement intérieur est annexé au contrat constitutif ou aux statuts, selon le cas.
Le contrat constitutif ou les statuts, ainsi que le règlement intérieur, ne peuvent être modifiés que par l'assemblée, ou l'assemblée générale, selon le cas, statuant à la majorité absolue en nombre des membres du groupement ou de la société, ou, si le contrat constitutif ou les statuts le prévoient, à une majorité plus importante. Il en est de même des décisions portant agrément ou exclusion.
Les autres décisions sont prises dans les conditions propres à chacune des formes prévues à l'article L. 125-2. Toutefois, nonobstant les dispositions du livre II, les statuts d'une société anonyme à capital variable constituée en application du présent chapitre peuvent stipuler que chacun des actionnaires dispose d'une voix en assemblée générale, quel que soit le nombre d'actions qu'il détient.
Article L125-11
Le règlement intérieur détermine les règles propres à assurer une politique commerciale commune. Il fixe les conditions générales d'exploitation, et, notamment :
1° Les jours et heures d'ouverture ainsi que, le cas échéant, les périodes de fermeture saisonnières ou pour congés annuels ;
2° L'organisation et la gestion des services communs et la répartition des charges correspondant à ces services ;
3° Sous réserve de la législation en vigueur en la matière, l'aménagement des activités concurrentes,
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ainsi que la détermination des activités annexes qui peuvent être exercées par chaque membre en concurrence avec celles d'autres membres du magasin ;
4° Le choix des inscriptions publicitaires et décors propres à chaque emplacement et éventuellement leur harmonisation ;
5° Les actions collectives ou individuelles d'animation du magasin, notamment celles à caractère saisonnier.
Section 3 : De l'agrément et de l'exclusion.
Article L125-12
Le contrat constitutif ou les statuts, selon le cas, peuvent subordonner toute cession de parts à l'agrément du cessionnaire par l'assemblée du groupement ou par l'assemblée générale de la société, selon le cas. L'assemblée ou l'assemblée générale se prononce dans le délai d'un mois à compter de la date de la demande d'agrément.
Le contrat constitutif ou les statuts, selon le cas, peuvent également soumettre à cet agrément les ayants droit d'un titulaire de parts décédé qui ne participaient pas à son activité dans le magasin collectif.
Le refus d'agrément donne droit à indemnité dans les conditions prévues aux articles L. 125-17 et L. 125-18.
Article L125-13
La clause d'agrément n'est pas opposable en cas de vente forcée des parts, que celles-ci aient ou non fait l'objet d'un nantissement.
Article L125-14
Le contrat constitutif ou les statuts, selon le cas, peuvent subordonner la mise en location-gérance d'un fonds de commerce ou d'une entreprise artisanale du magasin collectif à l'agrément du locataire gérant par l'assemblée.
En cas de redressement ou de liquidation judiciaires du propriétaire, cette clause ne peut être invoquée si la conclusion d'un contrat de location-gérance est autorisée par le tribunal conformément aux dispositions du titre II du livre VI.
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Article L125-15
L'organe d'administration du magasin collectif peut adresser un avertissement à tout membre qui, par son fait ou celui des personnes à qui il a confié l'exploitation de son fonds ou de son entreprise, commet une infraction au règlement intérieur.
En cas de location-gérance, cet avertissement est également notifié au locataire-gérant.
Si dans les trois mois qui suivent, cet avertissement est demeuré sans effet et si les intérêts légitimes du magasin collectif ou de certains de ses membres sont compromis, l'assemblée des membres, ou l'assemblée générale, selon le cas, a la faculté de prononcer, à la majorité prévue à l'article L. 125-10, l'exclusion de l'intéressé.
Jusqu'à ce que la décision d'exclusion soit devenue définitive, l'exclu a la faculté de présenter un ou plusieurs cessionnaires dans les conditions déterminées par le contrat constitutif ou les statuts.
Article L125-16
Sous réserve de la procédure d'évaluation des parts prévue au second alinéa de l'article L. 125-17, tout membre d'un magasin collectif peut déférer au tribunal de grande instance, dans le délai d'un mois de sa notification par lettre recommandée avec demande d'avis de réception, toute décision prise en application des articles L. 125-12, L. 125-14 et du troisième alinéa de l'article L. 125-15.
Le tribunal peut annuler ou réformer la décision qui lui est déférée ou y substituer sa propre décision.
Nonobstant toute clause contraire, le recours en justice est suspensif de l'exécution de la décision déférée, sauf dans le cas d'une décision d'exclusion motivée par la non-utilisation des emplacements ou par le non-paiement des charges.
Article L125-17
En cas d'exclusion, de départ ou de décès accompagnés du refus d'agrément du cessionnaire ou des successeurs, le titulaire des parts, ou, en cas de décès, ses ayants droit, ont la faculté de transférer ou d'aliéner leur fonds de commerce ou leur entreprise immatriculée au répertoire des métiers. Le nouvel attributaire de l'emplacement ou, à défaut, le groupement ou la société, selon le cas, leur rembourse la valeur de leurs parts, augmentée, s'il y a lieu, de la plus-value que leurs aménagements ont pu conférer à l'emplacement dont ils étaient titulaires.
Cette valeur est fixée par l'assemblée ou l'assemblée générale, selon le cas, en même temps qu'est prise la décision d'exclusion ou celle refusant l'agrément du cessionnaire ou des successeurs. En cas de désaccord, elle est déterminée à la date de ces décisions par un expert désigné par ordonnance du
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président du tribunal de grande instance statuant en la forme des référés. Cette ordonnance n'est susceptible d'aucune voie de recours nonobstant toute clause contraire. Le rapport d'expertise est soumis à l'homologation du président du tribunal de grande instance statuant en la forme des référés.
Article L125-18
Dans les cas prévus au premier alinéa de l'article L. 125-17, le groupement ou la société ne peuvent procéder à l'installation d'un nouvel attributaire que si ont été versées à l'ancien titulaire des parts ou, en cas de décès, à ses ayants droit, les sommes prévues audit article L. 125-17, ou à défaut, une provision fixée par le président du tribunal de grande instance statuant en la forme des référés.
Toutefois, ce versement préalable n'est pas exigé lorsqu'une caution a été donnée pour le montant de ces sommes ou de cette provision par un établissement de crédit ou un établissement financier spécialement habilité à cet effet, ou lorsque ce montant a été consigné entre les mains d'un mandataire désigné au besoin par ordonnance rendue en la forme des référés.
En outre, s'il s'agit d'une coopérative, le conseil d'administration ou le directoire, selon le cas, peut invoquer les dispositions du second alinéa de l'article L. 124-11.
Section 4 : De la dissolution.
Article L125-19
Sauf clause contraire du contrat constitutif ou des statuts, le redressement ou la liquidation judiciaires de l'un des membres n'entraîne pas de plein droit la dissolution du groupement d'intérêt économique.
Chapitre VI : Des sociétés de caution mutuelle.
Article L126-1
Les règles de création de sociétés de caution mutuelle entre commerçants, industriels, fabricants, artisans, sociétés commerciales, membres des professions libérales, propriétaires d'immeubles ou de droits immobiliers, ainsi qu'entre les opérateurs mentionnés à l'article L. 524-1, sont fixées par la loi du 13 mars 1917.
Chapitre VII : Du contrat d'appui au projet d'entreprise pour la
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création ou la reprise d'une activité économique.
Article L127-1
L'appui au projet d'entreprise pour la création ou la reprise d'une activité économique est défini par un contrat par lequel une personne morale s'oblige à fournir, par les moyens dont elle dispose, une aide particulière et continue à une personne physique, non salariée à temps complet, qui s'engage à suivre un programme de préparation à la création ou à la reprise et à la gestion d'une activité économique. Ce contrat peut aussi être conclu entre une personne morale et le dirigeant associé unique d'une personne morale.
Article L127-2
Le contrat d'appui au projet d'entreprise est conclu pour une durée qui ne peut excéder douze mois, renouvelable deux fois. Les modalités du programme d'appui et de préparation et de l'engagement respectif des parties contractantes sont précisées par le contrat. Sont ainsi déterminées les conditions dans lesquelles la personne bénéficiaire peut prendre à l'égard des tiers des engagements en relation avec l'activité économique projetée.
Le contrat est, sous peine de nullité, conclu par écrit.
Article L127-3
Le fait pour la personne morale responsable de l'appui de mettre à disposition du bénéficiaire les moyens nécessaires à sa préparation à la création ou la reprise et à la gestion de l'activité économique projetée n'emporte pas, par lui-même, présomption d'un lien de subordination.
La mise à disposition de ces moyens et la contrepartie éventuelle des frais engagés par la personne morale responsable de l'appui en exécution du contrat figurent à son bilan.
Article L127-4
Lorsqu'en cours de contrat débute une activité économique, le bénéficiaire doit procéder à l'immatriculation de l'entreprise, si cette immatriculation est requise par la nature de cette activité.
Avant toute immatriculation, les engagements pris par le bénéficiaire à l'égard des tiers à l'occasion du programme d'appui et de préparation sont, au regard de ces tiers, assumés par l'accompagnateur. La personne morale responsable de l'appui et le bénéficiaire sont, après l'immatriculation, tenus solidairement des engagements pris par ce dernier conformément aux stipulations du contrat
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d'appui, jusqu'à la fin de celui-ci.
Article L127-5
Le contrat d'appui au projet d'entreprise pour la création ou la reprise d'une activité économique ne peut avoir pour objet ou pour effet d'enfreindre les dispositions des articles L. 125-1, L. 125-3, L. 324-9 ou L. 324-10 du code du travail.
L'acte de création ou de reprise d'entreprise doit être clairement distingué de la fonction d'accompagnement.
Article L127-6
La situation professionnelle et sociale du bénéficiaire du contrat d'appui au projet d'entreprise est déterminée par les articles L. 783-1 et L. 783-2 du code du travail.
La personne morale responsable de l'appui est responsable à l'égard des tiers des dommages causés par le bénéficiaire à l'occasion du programme d'appui et de préparation mentionné aux articles L. 127-1 et L. 127-2 avant l'immatriculation visée à l'article L. 127-4. Après l'immatriculation, la personne morale responsable de l'appui garantit la responsabilité à l'occasion du contrat d'appui, si le bénéficiaire a bien respecté les clauses du contrat jusqu'à la fin de ce dernier.
Article L127-7
Les modalités de publicité des contrats d'appui au projet d'entreprise pour la création ou la reprise d'une activité économique et les autres mesures d'application du présent chapitre sont fixées par décret en Conseil d'Etat.
Chapitre IX : Du tutorat rémunéré en entreprise.
Article L129-1
Le cédant d'une entreprise commerciale, artisanale, libérale ou de services peut, après cette cession, conclure avec le cessionnaire de cette entreprise une convention aux termes de laquelle il s'engage, contre rémunération, à réaliser une prestation temporaire de tutotat. Cette prestation vise à assurer la transmission au cessionnaire de l'expérience professionnelle acquise par le cédant en tant que chef de l'entreprise cédée. Le tuteur reste affilié aux régimes de sécurité sociale dont il relevait antérieurement à la cession.
Les conditions d'application des dispositions du présent article sont fixées par décret en Conseil
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d'Etat.
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Partie législative
LIVRE Ier : Du commerce en général.
TITRE III : Des courtiers, des commissionnaires, des transporteurs , des agents commerciaux et des vendeurs à domicile indépendants.
Chapitre Ier : Des courtiers.
Article L131-1
Il y a des courtiers de marchandises, des courtiers interprètes et conducteurs de navires, des courtiers de transport par terre et par eau.
Article L131-3
Les courtiers de transport par terre et par eau constitués selon la loi ont seuls, dans les lieux où ils sont établis, le droit de faire le courtage des transports par terre et par eau. Ils ne peuvent cumuler leurs fonctions avec celles de courtiers de marchandises ou de courtiers conducteurs de navires, désignés à l'article L. 131-1.
Article L131-5
Les prestataires de services d'investissement peuvent faire, concurremment avec les courtiers de marchandises, les négociations et le courtage des ventes ou achats des matières métalliques. Ils ont seuls le droit d'en constater le cours.
Article L131-11
Le fait pour un courtier d'être chargé d'une opération de courtage pour une affaire où il avait un intérêt personnel, sans en prévenir les parties auxquelles il aura servi d'intermédiaire, est puni d'une amende de 3 750 euros sans préjudice de l'action des parties en dommages-intérêts. S'il est inscrit sur la liste des courtiers, dressée conformément aux dispositions réglementaires, il en est rayé et ne peut plus y être inscrit de nouveau.
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Chapitre II : Des commissionnaires.
Section 1 : Des commissionnaires en général.
Article L132-1
Le commissionnaire est celui qui agit en son propre nom ou sous un nom social pour le compte d'un commettant.
Les devoirs et les droits du commissionnaire qui agit au nom d'un commettant sont déterminés par le titre XIII du livre III du code civil.
Article L132-2
Le commissionnaire a privilège sur la valeur des marchandises faisant l'objet de son obligation et sur les documents qui s'y rapportent pour toutes ses créances de commission sur son commettant, même nées à l'occasion d'opérations antérieures.
Dans la créance privilégiée du commissionnaire sont compris, avec le principal, les intérêts, commissions et frais accessoires.
Section 2 : Des commissionnaires pour les transports.
Article L132-3
Le commissionnaire qui se charge d'un transport par terre ou par eau est tenu d'inscrire sur son livre-journal la déclaration de la nature et de la quantité des marchandises, et, s'il en est requis, de leur valeur.
Article L132-4
Il est garant de l'arrivée des marchandises et effets dans le délai déterminé par la lettre de voiture, hors les cas de la force majeure légalement constatée.
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Article L132-5
Il est garant des avaries ou pertes de marchandises et effets, s'il n'y a stipulation contraire dans la lettre de voiture, ou force majeure.
Article L132-6
Il est garant des faits du commissionnaire intermédiaire auquel il adresse les marchandises.
Article L132-7
La marchandise sortie du magasin du vendeur ou de l'expéditeur voyage, s'il n'y a convention contraire, aux risques et périls de celui à qui elle appartient, sauf son recours contre le commissionnaire et le voiturier chargés du transport.
Article L132-8
La lettre de voiture forme un contrat entre l'expéditeur, le voiturier et le destinataire ou entre l'expéditeur, le destinataire, le commissionnaire et le voiturier. Le voiturier a ainsi une action directe en paiement de ses prestations à l'encontre de l'expéditeur et du destinataire, lesquels sont garants du paiement du prix du transport. Toute clause contraire est réputée non écrite.
Article L132-9
I. - La lettre de voiture doit être datée.
II. - Elle doit exprimer :
1° La nature et le poids ou la contenance des objets à transporter ;
2° Le délai dans lequel le transport doit être effectué.
III. - Elle indique :
1° Le nom et le domicile du commissionnaire par l'entremise duquel le transport s'opère, s'il y en a
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un ;
2° Le nom de celui à qui la marchandise est adressée ;
3° Le nom et le domicile du transporteur.
IV. - Elle énonce :
1° Le prix de la voiture ;
2° L'indemnité due pour cause de retard.
V. - Elle est signée par l'expéditeur ou le commissionnaire.
VI. - Elle présente en marge les marques et numéros des objets à transporter.
VII. - La lettre de voiture est copiée par le commissionnaire sur un registre coté et paraphé, sans intervalle et de suite.
Chapitre III : Des transporteurs.
Article L133-1
Le voiturier est garant de la perte des objets à transporter, hors les cas de la force majeure.
Il est garant des avaries autres que celles qui proviennent du vice propre de la chose ou de la force majeure.
Toute clause contraire insérée dans toute lettre de voiture, tarif ou autre pièce quelconque, est nulle.
Article L133-2
Si, par l'effet de la force majeure, le transport n'est pas effectué dans le délai convenu, il n'y a pas lieu à indemnité contre le voiturier pour cause de retard.
Article L133-3
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La réception des objets transportés éteint toute action contre le voiturier pour avarie ou perte partielle si dans les trois jours, non compris les jours fériés, qui suivent celui de cette réception, le destinataire n'a pas notifié au voiturier, par acte extrajudiciaire ou par lettre recommandée, sa protestation motivée.
Si dans le délai ci-dessus prévu il est formé une demande d'expertise en application de l'article L. 133-4, cette demande vaut protestation sans qu'il soit nécessaire de procéder comme il est dit au premier alinéa.
Toutes stipulations contraires sont nulles et de nul effet. Cette dernière disposition n'est pas applicable aux transports internationaux.
Article L133-4
En cas de refus des objets transportés ou présentés pour être transportés, ou de contestation de quelque nature qu'elle soit, sur la formation ou l'exécution du contrat de transport, ou à raison d'un incident survenu au cours même et à l'occasion du transport, l'état des objets transportés ou présentés pour être transportés et, en tant que de besoin, leur conditionnement, leur poids, leur nature, etc., sont vérifiés et constatés par un ou plusieurs experts nommés par le président du tribunal de commerce ou, à défaut, par le président du tribunal d'instance et par ordonnance rendue sur requête.
Le requérant est tenu, sous sa responsabilité, d'appeler à cette expertise, même par simple lettre recommandée ou par télégramme, toutes parties susceptibles d'être mises en cause, notamment l'expéditeur, le destinataire, le voiturier et le commissionnaire, et les experts doivent prêter serment, sans formalité d'audience, devant le juge qui les a commis ou devant le juge du tribunal d'instance où ils procèdent. Toutefois, en cas d'urgence, le juge saisi de la requête peut dispenser de l'accomplissement de tout ou partie des formalités prévues au présent alinéa. Mention est faite de cette dispense dans l'ordonnance.
Le dépôt ou séquestre des objets en litige, et ensuite leur transport dans un dépôt public, peut être ordonné.
La vente peut en être ordonnée jusqu'à concurrence des frais de voiture ou autres déjà faits. Le juge attribue le produit de la vente à celle des parties qui a fait l'avance desdits frais.
Article L133-5
Les dispositions contenues dans le présent chapitre sont communes aux transporteurs routiers et aux transporteurs fluviaux.
Article L133-6
Les actions pour avaries, pertes ou retards, auxquelles peut donner lieu contre le voiturier le contrat
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de transport, sont prescrites dans le délai d'un an, sans préjudice des cas de fraude ou d'infidélité.
Toutes les autres actions auxquelles ce contrat peut donner lieu, tant contre le voiturier ou le commissionnaire que contre l'expéditeur ou le destinataire, aussi bien que celles qui naissent des dispositions de l'article 1269 du code de procédure civile, sont prescrites dans le délai d'un an.
Le délai de ces prescriptions est compté, dans le cas de perte totale, du jour où la remise de la marchandise aurait dû être effectuée, et, dans tous les autres cas, du jour où la marchandise aura été remise ou offerte au destinataire.
Le délai pour intenter chaque action récursoire est d'un mois. Cette prescription ne court que du jour de l'exercice de l'action contre le garanti.
Dans le cas de transports faits pour le compte de l'Etat, la prescription ne commence à courir que du jour de la notification de la décision ministérielle emportant liquidation ou ordonnancement définitif.
Article L133-7
Le voiturier a privilège sur la valeur des marchandises faisant l'objet de son obligation et sur les documents qui s'y rapportent pour toutes créances de transport, même nées à l'occasion d'opérations antérieures, dont son donneur d'ordre, l'expéditeur ou le destinataire restent débiteurs envers lui, dans la mesure où le propriétaire des marchandises sur lesquelles s'exerce le privilège est impliqué dans lesdites opérations.
Les créances de transport couvertes par le privilège sont les prix de transport proprement dits, les compléments de rémunération dus au titre de prestations annexes et d'immobilisation du véhicule au chargement ou au déchargement, les frais engagés dans l'intérêt de la marchandise, les droits, taxes, frais et amendes de douane liés à une opération de transport et les intérêts.
Article L133-8
Seule est équipollente au dol la faute inexcusable du voiturier ou du commissionnaire de transport. Est inexcusable la faute délibérée qui implique la conscience de la probabilité du dommage et son acceptation téméraire sans raison valable. Toute clause contraire est réputée non écrite.
Article L133-9
Sans préjudice des articles L. 121-95 et L. 121-96 du code de la consommation, les dispositions des articles L. 133-1 à L. 133-8 relatives au voiturier s'appliquent aux entreprises de transport de déménagement dès lors que la prestation objet du contrat de déménagement comprend pour partie une prestation de transport.
Chapitre IV : Des agents commerciaux.
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Article L134-1
L'agent commercial est un mandataire qui, à titre de profession indépendante, sans être lié par un contrat de louage de services, est chargé, de façon permanente, de négocier et, éventuellement, de conclure des contrats de vente, d'achat, de location ou de prestation de services, au nom et pour le compte de producteurs, d'industriels, de commerçants ou d'autres agents commerciaux. Il peut être une personne physique ou une personne morale.
Ne relèvent pas des dispositions du présent chapitre les agents dont la mission de représentation s'exerce dans le cadre d'activités économiques qui font l'objet, en ce qui concerne cette mission, de dispositions législatives particulières.
Article L134-2
Chaque partie a le droit, sur sa demande, d'obtenir de l'autre partie un écrit signé mentionnant le contenu du contrat d'agence, y compris celui de ses avenants.
Article L134-3
L'agent commercial peut accepter sans autorisation la représentation de nouveaux mandants. Toutefois, il ne peut accepter la représentation d'une entreprise concurrente de celle de l'un de ses mandants sans accord de ce dernier.
Article L134-4
Les contrats intervenus entre les agents commerciaux et leurs mandants sont conclus dans l'intérêt commun des parties.
Les rapports entre l'agent commercial et le mandant sont régis par une obligation de loyauté et un devoir réciproque d'information.
L'agent commercial doit exécuter son mandat en bon professionnel ; le mandant doit mettre l'agent commercial en mesure d'exécuter son mandat.
Article L134-5
Tout élément de la rémunération variant avec le nombre ou la valeur des affaires constitue une commission au sens du présent chapitre.
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Les articles L. 134-6 à L. 134-9 s'appliquent lorsque l'agent est rémunéré en tout ou partie à la commission ainsi définie.
Dans le silence du contrat, l'agent commercial a droit à une rémunération conforme aux usages pratiqués, dans le secteur d'activité couvert par son mandat, là où il exerce son activité. En l'absence d'usages, l'agent commercial a droit à une rémunération raisonnable qui tient compte de tous les éléments qui ont trait à l'opération.
Article L134-6
Pour toute opération commerciale conclue pendant la durée du contrat d'agence, l'agent commercial a droit à la commission définie à l'article L. 134-5 lorsqu'elle a été conclue grâce à son intervention ou lorsque l'opération a été conclue avec un tiers dont il a obtenu antérieurement la clientèle pour des opérations du même genre.
Lorsqu'il est chargé d'un secteur géographique ou d'un groupe de personnes déterminé, l'agent commercial a également droit à la commission pour toute opération conclue pendant la durée du contrat d'agence avec une personne appartenant à ce secteur ou à ce groupe.
Article L134-7
Pour toute opération commerciale conclue après la cessation du contrat d'agence, l'agent commercial a droit à la commission, soit lorsque l'opération est principalement due à son activité au cours du contrat d'agence et a été conclue dans un délai raisonnable à compter de la cessation du contrat, soit lorsque, dans les conditions prévues à l'article L. 134-6, l'ordre du tiers a été reçu par le mandant ou par l'agent commercial avant la cessation du contrat d'agence.
Article L134-8
L'agent commercial n'a pas droit à la commission prévue à l'article L. 134-6 si celle-ci est due, en vertu de l'article L. 134-7, à l'agent commercial précédent, à moins que les circonstances rendent équitable de partager la commission entre les agents commerciaux.
Article L134-9
La commission est acquise dès que le mandant a exécuté l'opération ou devrait l'avoir exécutée en vertu de l'accord conclu avec le tiers ou bien encore dès que le tiers a exécuté l'opération.
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La commission est acquise au plus tard lorsque le tiers a exécuté sa part de l'opération ou devrait l'avoir exécutée si le mandant avait exécuté sa propre part. Elle est payée au plus tard le dernier jour du mois qui suit le trimestre au cours duquel elle était acquise.
Article L134-10
Le droit à la commission ne peut s'éteindre que s'il est établi que le contrat entre le tiers et le mandant ne sera pas exécuté et si l'inexécution n'est pas due à des circonstances imputables au mandant.
Les commissions que l'agent commercial a déjà perçues sont remboursées si le droit y afférent est éteint.
Article L134-11
Un contrat à durée déterminée qui continue à être exécuté par les deux parties après son terme est réputé transformé en un contrat à durée indéterminée.
Lorsque le contrat d'agence est à durée indéterminée, chacune des parties peut y mettre fin moyennant un préavis. Les dispositions du présent article sont applicables au contrat à durée déterminée transformé en contrat à durée indéterminée. Dans ce cas, le calcul de la durée du préavis tient compte de la période à durée déterminée qui précède.
La durée du préavis est d'un mois pour la première année du contrat, de deux mois pour la deuxième année commencée, de trois mois pour la troisième année commencée et les années suivantes. En l'absence de convention contraire, la fin du délai de préavis coïncide avec la fin d'un mois civil.
Les parties ne peuvent convenir de délais de préavis plus courts. Si elles conviennent de délais plus longs, le délai de préavis prévu pour le mandant ne doit pas être plus court que celui qui est prévu pour l'agent.
Ces dispositions ne s'appliquent pas lorsque le contrat prend fin en raison d'une faute grave de l'une des parties ou de la survenance d'un cas de force majeure.
Article L134-12
En cas de cessation de ses relations avec le mandant, l'agent commercial a droit à une indemnité compensatrice en réparation du préjudice subi.
L'agent commercial perd le droit à réparation s'il n'a pas notifié au mandant, dans un délai d'un an à compter de la cessation du contrat, qu'il entend faire valoir ses droits.
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Les ayants droit de l'agent commercial bénéficient également du droit à réparation lorsque la cessation du contrat est due au décès de l'agent.
Article L134-13
La réparation prévue à l'article L. 134-12 n'est pas due dans les cas suivants :
1° La cessation du contrat est provoquée par la faute grave de l'agent commercial ;
2° La cessation du contrat résulte de l'initiative de l'agent à moins que cette cessation ne soit justifiée par des circonstances imputables au mandant ou dues à l'âge, l'infirmité ou la maladie de l'agent commercial, par suite desquels la poursuite de son activité ne peut plus être raisonnablement exigée ;
3° Selon un accord avec le mandant, l'agent commercial cède à un tiers les droits et obligations qu'il détient en vertu du contrat d'agence.
Article L134-14
Le contrat peut contenir une clause de non-concurrence après la cessation du contrat.
Cette clause doit être établie par écrit et concerner le secteur géographique et, le cas échéant, le groupe de personnes confiés à l'agent commercial ainsi que le type de biens ou de services pour lesquels il exerce la représentation aux termes du contrat.
La clause de non-concurrence n'est valable que pour une période maximale de deux ans après la cessation d'un contrat.
Article L134-15
Lorsque l'activité d'agent commercial est exercée en exécution d'un contrat écrit passé entre les parties à titre principal pour un autre objet, celles-ci peuvent décider par écrit que les dispositions du présent chapitre ne sont pas applicables à la partie correspondant à l'activité d'agence commerciale.
Cette renonciation est nulle si l'exécution du contrat fait apparaître que l'activité d'agence commerciale est exercée, en réalité, à titre principal ou déterminant.
Article L134-16
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Est réputée non écrite toute clause ou convention contraire aux dispositions des articles L. 134-2 et L. 134-4, des troisième et quatrième alinéas de l'article L. 134-11, et de l'article L. 134-15 ou dérogeant, au détriment de l'agent commercial, aux dispositions du deuxième alinéa de l'article L. 134-9, du premier alinéa de l'article L. 134-10, des articles L. 134-12 et L. 134-13 et du troisième alinéa de l'article L. 134-14.
Article L134-17
Un décret en Conseil d'Etat fixe les conditions d'application du présent chapitre.
Chapitre V : Des vendeurs à domicile indépendants.
Article L135-1
Le vendeur à domicile indépendant est celui qui effectue la vente de produits ou de services dans les conditions prévues par la section 3 du chapitre Ier du titre II du livre Ier du code de la consommation, à l'exclusion du démarchage par téléphone ou par tout moyen technique assimilable, dans le cadre d'une convention écrite de mandataire, de commissionnaire, de revendeur ou de courtier, le liant à l'entreprise qui lui confie la vente de ses produits ou services.
Article L135-2
Le contrat peut prévoir que le vendeur assure des prestations de service visant au développement et à l'animation du réseau de vendeurs à domicile indépendants, si celles-ci sont de nature à favoriser la vente de produits ou de services de l'entreprise, réalisée dans les conditions mentionnées à l'article L. 135-1. Le contrat précise la nature de ces prestations, en définit les conditions d'exercice et les modalités de rémunération.
Pour l'exercice de ces prestations, le vendeur ne peut en aucun cas exercer une activité d'employeur, ni être en relation contractuelle avec les vendeurs à domicile indépendants qu'il anime.
Aucune rémunération, à quelque titre que ce soit, ne peut être versée par un vendeur à domicile indépendant à un autre vendeur à domicile indépendant, et aucun achat ne peut être effectué par un vendeur à domicile indépendant auprès d'un autre vendeur à domicile indépendant.
Article L135-3
Les vendeurs à domicile indépendants dont les revenus d'activité ont atteint un montant fixé par arrêté au cours d'une période définie par le même arrêté sont tenus de s'inscrire au registre du commerce et des sociétés ou au registre spécial des agents commerciaux à compter du 1er janvier qui suit cette période.
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Partie législative
LIVRE Ier : Du commerce en général.
TITRE IV : Du fonds de commerce.
Chapitre Ier : De la vente du fonds de commerce.
Section 1 : De l'acte de vente.
Article L141-1
I. - Dans tout acte constatant une cession amiable de fonds de commerce, consentie même sous condition et sous la forme d'un autre contrat ou l'apport en société d'un fonds de commerce, le vendeur est tenu d'énoncer :
1° Le nom du précédent vendeur, la date et la nature de son acte d'acquisition et le prix de cette acquisition pour les éléments incorporels, les marchandises et le matériel ;
2° L'état des privilèges et nantissements grevant le fonds ;
3° Le chiffre d'affaires qu'il a réalisé durant les trois exercices comptables précédant celui de la vente, ce nombre étant réduit à la durée de la possession du fonds si elle a été inférieure à trois ans ;
4° Les bénéfices commerciaux réalisés pendant le même temps ;
5° Le bail, sa date, sa durée, le nom et l'adresse du bailleur et du cédant, s'il y a lieu.
II. - L'omission des énonciations ci-dessus prescrites peut, sur la demande de l'acquéreur formée dans l'année, entraîner la nullité de l'acte de vente.
Article L141-2
Au jour de la cession, le vendeur et l'acheteur visent tous les livres de comptabilité qui ont été tenus par le vendeur durant les trois exercices comptables précédant celui de la vente, ce nombre étant réduit à la durée de possession du fonds si elle a été inférieure à trois ans, ainsi qu'un document
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présentant les chiffres d'affaires mensuels réalisés entre la clôture du dernier exercice et le mois précédant celui de la vente.
Ces livres font l'objet d'un inventaire signé par les parties et dont un exemplaire est remis à chacune d'elles. Le cédant doit mettre ces livres à la disposition de l'acquéreur pendant trois ans, à partir de son entrée en jouissance du fonds.
Toute clause contraire est réputée non écrite.
Article L141-3
Le vendeur est, nonobstant toute stipulation contraire, tenu de la garantie à raison de l'inexactitude de ses énonciations dans les conditions édictées par les articles 1644 et 1645 du code civil.
Les intermédiaires, rédacteurs des actes et leurs préposés, sont tenus solidairement avec lui s'ils connaissent l'inexactitude des énonciations faites.
Article L141-4
L'action résultant de l'article L. 141-3 doit être intentée par l'acquéreur dans le délai d'une année, à compter de la date de sa prise de possession.
Section 2 : Du privilège du vendeur.
Article L141-5
Le privilège du vendeur d'un fonds de commerce n'a lieu que si la vente a été constatée par un acte authentique ou sous seing privé, dûment enregistré, et que s'il a été inscrit sur un registre public tenu au greffe du tribunal de commerce dans le ressort duquel le fonds est exploité.
Il ne porte que sur les éléments du fonds énumérés dans la vente et dans l'inscription, et à défaut de désignation précise, que sur l'enseigne et le nom commercial, le droit au bail, la clientèle et l'achalandage.
Des prix distincts sont établis pour les éléments incorporels du fonds, le matériel et les marchandises.
Le privilège du vendeur qui garantit chacun de ces prix, ou ce qui en reste dû, s'exerce distinctement sur les prix respectifs de la revente afférents aux marchandises, au matériel et aux éléments
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incorporels du fonds.
Nonobstant toute convention contraire, les paiements partiels autres que les paiements comptants s'imputent d'abord sur le prix des marchandises, ensuite sur le prix du matériel.
Il y a lieu à ventilation du prix de revente mis en distribution, s'il s'applique à un ou plusieurs éléments non compris dans la première vente.
Article L141-6
L'inscription doit être prise, à peine de nullité, dans la quinzaine de la date de l'acte de vente. Elle prime toute inscription prise dans le même délai du chef de l'acquéreur ; elle est opposable aux créanciers de l'acquéreur en redressement ou en liquidation judiciaire, ainsi qu'à sa succession bénéficiaire.
L'action résolutoire, établie par l'article 1654 du code civil, doit, pour produire effet, être mentionnée et réservée expressément dans l'inscription. Elle ne peut être exercée au préjudice des tiers après l'extinction du privilège. Elle est limitée, comme le privilège, aux seuls éléments qui ont fait partie de la vente.
Article L141-7
En cas de résolution judiciaire ou amiable de la vente, le vendeur est tenu de reprendre tous les éléments du fonds qui ont fait partie de la vente, même ceux pour lesquels son privilège et l'action résolutoire sont éteints. Il est comptable du prix des marchandises et du matériel existant au moment de sa reprise de possession d'après l'estimation qui en est faite par expertise contradictoire, amiable ou judiciaire, sous la déduction de ce qui peut lui rester dû par privilège sur les prix respectifs des marchandises et du matériel, le surplus, s'il y en a, devant rester le gage des créanciers inscrits et, à défaut, des créanciers chirographaires.
Article L141-8
Le vendeur qui exerce l'action résolutoire doit la notifier aux créanciers inscrits sur le fonds au domicile par eux élu dans leurs inscriptions. Le jugement ne peut intervenir qu'après un mois écoulé depuis la notification.
Article L141-9
Le vendeur qui a stipulé lors de la vente que, faute de paiement dans le terme convenu, la vente serait résolue de plein droit, ou qui en a obtenu de l'acquéreur la résolution à l'amiable, doit notifier
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aux créanciers inscrits, aux domiciles élus, la résolution encourue ou consentie, qui ne deviendra définitive qu'un mois après la notification ainsi faite.
Article L141-10
Lorsque la vente d'un fonds est poursuivie aux enchères publiques, soit à la requête d'un administrateur judiciaire ou d'un mandataire judiciaire, soit judiciairement à la requête de tout autre ayant droit, le poursuivant doit la notifier aux précédents vendeurs, au domicile élu dans leurs inscriptions, avec déclaration que, faute par eux d'intenter l'action résolutoire dans le mois de la notification, ils sont déchus, à l'égard de l'adjudicataire, du droit de l'exercer.
Article L141-11
Les articles L. 624-11 à L. 624-18 ne sont applicables ni au privilège ni à l'action résolutoire du vendeur d'un fonds de commerce.
Article L141-12
Sous réserve des dispositions relatives à l'apport en société des fonds de commerce prévues aux articles L. 141-21 et L. 141-22, toute vente ou cession de fonds de commerce, consentie même sous condition ou sous la forme d'un autre contrat, ainsi que toute attribution de fonds de commerce par partage ou licitation, est, sauf si elle intervient en application de l'article L. 642-5, dans la quinzaine de sa date, publiée à la diligence de l'acquéreur sous forme d'extrait ou d'avis dans un journal habilité à recevoir les annonces légales dans l'arrondissement ou le département dans lequel le fonds est exploité et, dans la quinzaine de cette publication, au Bulletin officiel des annonces civiles et commerciales. En ce qui concerne les fonds forains, le lieu d'exploitation est celui où le vendeur est inscrit au registre du commerce et des sociétés.
Article L141-13
La publication de l'extrait ou de l'avis faite en exécution de l'article précédent doit être, à peine de nullité, précédée soit de l'enregistrement de l'acte contenant mutation, soit, à défaut d'acte, de la déclaration prescrite par les articles 638 et 653 du code général des impôts. Cet extrait doit, sous la même sanction, rapporter les date, volume et numéro de la perception, ou, en cas de simple déclaration, la date et le numéro du récépissé de cette déclaration et, dans les deux cas, l'indication du bureau où ont eu lieu ces opérations. Il énonce, en outre, la date de l'acte, les noms, prénoms et domiciles de l'ancien et du nouveau propriétaire, la nature et le siège du fonds, le prix stipulé, y compris les charges ou l'évaluation ayant servi de base à la perception des droits d'enregistrement, l'indication du délai ci-après fixé pour les oppositions et une élection de domicile dans le ressort du tribunal.
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Article L141-14
Dans les dix jours suivant la dernière en date des publications visées à l'article L. 141-12, tout créancier du précédent propriétaire, que sa créance soit ou non exigible, peut former au domicile élu, par simple acte extrajudiciaire, opposition au paiement du prix. L'opposition, à peine de nullité, énonce le chiffre et les causes de la créance et contient une élection de domicile dans le ressort de la situation du fonds. Le bailleur ne peut former opposition pour loyers en cours ou à échoir, et ce, nonobstant toutes stipulations contraires. Aucun transport amiable ou judiciaire du prix ou de partie du prix n'est opposable aux créanciers qui se sont ainsi fait connaître dans ce délai.
Article L141-15
Au cas d'opposition au paiement du prix, le vendeur peut, en tout état de cause, après l'expiration du délai de dix jours, se pourvoir en référé devant le président du tribunal de grande instance afin d'obtenir l'autorisation de toucher son prix malgré l'opposition, à la condition de verser à la Caisse des dépôts et consignations, ou aux mains d'un tiers commis à cet effet, une somme suffisante, fixée par le juge des référés, pour répondre éventuellement des causes de l'opposition dans le cas où il se reconnaîtrait ou serait jugé débiteur. Le dépôt ainsi ordonné est affecté spécialement, aux mains du tiers détenteur, à la garantie des créances pour sûreté desquelles l'opposition aura été faite et privilège exclusif de tout autre leur est attribué sur ledit dépôt, sans que, toutefois, il puisse en résulter transport judiciaire au profit de l'opposant ou des opposants en cause à l'égard des autres créanciers opposants du vendeur, s'il en existe. A partir de l'exécution de l'ordonnance de référé, l'acquéreur est déchargé et les effets de l'opposition sont transportés sur le tiers détenteur.
Le juge des référés n'accorde l'autorisation demandée que s'il lui est justifié par une déclaration formelle de l'acquéreur mis en cause, faite sous sa responsabilité personnelle et dont il est pris acte, qu'il n'existe pas d'autres créanciers opposants que ceux contre lesquels il est procédé. L'acquéreur, en exécutant l'ordonnance, n'est pas libéré de son prix à l'égard des autres créanciers opposants antérieurs à ladite ordonnance s'il en existe.
Article L141-16
Si l'opposition a été faite sans titre et sans cause ou est nulle en la forme et s'il n'y a pas instance engagée au principal, le vendeur peut se pourvoir en référé devant le président du tribunal de grande instance, à l'effet d'obtenir l'autorisation de toucher son prix, malgré l'opposition.
Article L141-17
L'acquéreur qui paie son vendeur sans avoir fait les publications dans les formes prescrites, ou avant l'expiration du délai de dix jours, n'est pas libéré à l'égard des tiers.
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Article L141-18
Si la vente ou cession d'un fonds de commerce comprend des succursales ou établissements situés sur le territoire français, l'inscription et la publication prescrites aux articles L. 141-6 à L. 141-17 doivent être faites également dans un journal habilité pour recevoir les annonces légales au lieu du siège de ces succursales ou établissements.
Article L141-19
Pendant les vingt jours qui suivent la publication au Bulletin officiel des annonces civiles et commerciales prévue à l'article L. 141-12, une copie authentique ou l'un des originaux de l'acte de vente est tenu, au domicile élu, à la disposition de tout créancier opposant ou inscrit pour être consulté sans déplacement.
Pendant le même délai, tout créancier inscrit ou qui a formé opposition dans le délai de dix jours fixé par l'article L. 141-14 peut prendre, au domicile élu, communication de l'acte de vente et des oppositions et, si le prix ne suffit pas à désintéresser les créanciers inscrits et ceux qui se sont révélés par des oppositions, au plus tard dans les dix jours qui suivent la publication au Bulletin officiel des annonces civiles et commerciales prévue à l'article L. 141-12, former, en se conformant aux prescriptions des articles L. 141-14 à L. 141-16 une surenchère du sixième du prix principal du fonds de commerce, non compris le matériel et les marchandises.
La surenchère du sixième n'est pas admise après la vente judiciaire d'un fonds de commerce ou la vente poursuivie à la requête d'un administrateur judiciaire ou d'un mandataire judiciaire, ou de copropriétaires indivis du fonds, faite aux enchères publiques et conformément aux articles L. 143-6 et L. 143-7, ou selon les dispositions de l'article L. 642-5.
L'officier public commis pour procéder à la vente doit n'admettre à enchérir que des personnes dont la solvabilité lui est connue, ou qui ont déposé soit entre ses mains, soit à la Caisse des dépôts et consignations, avec affectation spéciale au paiement du prix, une somme qui ne peut être inférieure à la moitié du prix total de la première vente, ni à la portion du prix de ladite vente stipulée payable comptant, augmentée de la surenchère.
L'adjudication sur surenchère du sixième a lieu aux mêmes conditions et délais que la vente sur laquelle la surenchère est intervenue.
Si l'acquéreur surenchéri est dépossédé par suite de la surenchère, il doit, sous sa responsabilité, remettre les oppositions formées entre ses mains à l'adjudicataire, sur récépissé, dans la huitaine de l'adjudication, s'il ne les a pas fait connaître antérieurement par mention insérée au cahier des charges. L'effet de ces oppositions est reporté sur le prix de l'adjudication.
Article L141-20
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Lorsque le prix de la vente est définitivement fixé, qu'il y ait eu ou non surenchère, l'acquéreur, à défaut d'entente entre les créanciers pour la distribution amiable de son prix, est tenu, sur la sommation de tout créancier, et dans la quinzaine suivante, de consigner la portion exigible du prix, et le surplus au fur et à mesure de l'exigibilité, à la charge de toutes les oppositions faites entre ses mains ainsi que des inscriptions grevant le fonds et des cessions qui lui ont été notifiées.
Article L141-21
Sauf s'il résulte d'une opération de fusion ou de scission soumise aux dispositions du quatrième alinéa de l'article L. 236-2 et des articles L. 236-7 à L. 236-22, tout apport de fonds de commerce fait à une société en constitution ou déjà existante doit être porté à la connaissance des tiers dans les conditions prévues par les articles L. 141-12 à L. 141-18 par voie d'insertion dans les journaux d'annonces légales et au Bulletin officiel des annonces civiles et commerciales.
Toutefois, si par suite de l'application des dispositions législatives et réglementaires en vigueur relatives à la publication des actes de société, les indications prévues par ces articles figurent déjà dans le numéro du journal d'annonces légales où les insertions doivent être effectuées, il peut être procédé par simple référence à cette publication.
Dans ces insertions, l'élection de domicile est remplacée par l'indication du greffe du tribunal de commerce où les créanciers de l'apporteur doivent faire la déclaration de leurs créances.
Article L141-22
Dans les dix jours de la dernière en date des publications prévues aux articles L. 141-12 et L. 141-13, tout créancier non inscrit de l'associé apporteur fait connaître au greffe du tribunal de commerce de la situation du fonds, sa qualité de créancier et la somme qui lui est due. Le greffier lui délivre un récépissé de sa déclaration.
A défaut par les associés ou l'un d'eux de former dans la quinzaine suivante une demande en annulation de la société ou de l'apport, ou si l'annulation n'est pas prononcée, la société est tenue, solidairement avec le débiteur principal, au paiement du passif déclaré dans le délai ci-dessus et justifié.
En cas d'apport d'un fonds de commerce par une société à une autre société, notamment par suite d'une fusion ou d'une scission, les dispositions de l'alinéa précédent ne sont pas applicables lorsqu'il y a lieu à application des articles L. 236-14, L. 236-20 et L. 236-21 ou lorsque est exercée la faculté prévue à l'article L. 236-22.
Chapitre II : Du nantissement du fonds de commerce.
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Article L142-1
Les fonds de commerce peuvent faire l'objet de nantissements, sans autres conditions et formalités que celles prescrites par le présent chapitre et le chapitre III ci-après.
Le nantissement d'un fonds de commerce ne donne pas au créancier gagiste le droit de se faire attribuer le fonds en paiement et jusqu'à due concurrence.
Article L142-2
Sont seuls susceptibles d'être compris dans le nantissement soumis aux dispositions du présent chapitre comme faisant partie d'un fonds de commerce : l'enseigne et le nom commercial, le droit au bail, la clientèle et l'achalandage, le mobilier commercial, le matériel ou l'outillage servant à l'exploitation du fonds, les brevets d'invention, les licences, les marques, les dessins et modèles industriels, et généralement les droits de propriété intellectuelle qui y sont attachés.
Le certificat d'addition postérieur au nantissement qui comprend le brevet auquel il s'applique suit le sort de ce brevet et fait partie, comme lui, du gage constitué.
A défaut de désignation expresse et précise dans l'acte qui le constitue, le nantissement ne comprend que l'enseigne et le nom commercial, le droit au bail, la clientèle et l'achalandage.
Si le nantissement porte sur un fonds de commerce et ses succursales, celles-ci doivent être désignées par l'indication précise de leur siège.
Article L142-3
Le contrat de nantissement est constaté par un acte authentique ou par un acte sous seing privé, dûment enregistré.
Le privilège résultant du contrat de nantissement s'établit par le seul fait de l'inscription sur un registre public tenu au greffe du tribunal de commerce dans le ressort duquel le fonds est exploité.
La même formalité doit être remplie au greffe du tribunal de commerce dans le ressort duquel est située chacune des succursales du fonds comprise dans le nantissement.
Article L142-4
L'inscription doit être prise, à peine de nullité du nantissement, dans la quinzaine de la date de l'acte constitutif.
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En cas de redressement ou de liquidation judiciaires, les articles L. 632-1 à L. 632-4 sont applicables aux nantissements de fonds de commerce.
Article L142-5
Le rang des créanciers gagistes entre eux est déterminé par la date de leurs inscriptions. Les créanciers inscrits le même jour viennent en concurrence.
Chapitre III : Dispositions communes à la vente et au nantissement du fonds de commerce.
Section 1 : De la réalisation du gage et de la purge des créances inscrites.
Article L143-1
En cas de déplacement du fonds de commerce, les créances inscrites deviennent de plein droit exigibles si le propriétaire du fonds n'a pas fait connaître aux créanciers inscrits, quinze jours au moins d'avance, son intention de déplacer le fonds et le nouveau siège qu'il entend lui donner.
Dans la quinzaine de l'avis à eux notifié ou dans la quinzaine du jour où ils ont eu connaissance du déplacement, le vendeur ou le créancier gagiste doivent faire mentionner, en marge de l'inscription existante, le nouveau siège du fonds, et si le fonds a été transféré dans un autre ressort, faire reporter à sa date l'inscription primitive avec l'indication du nouveau siège, sur le registre du tribunal de ce ressort.
Le déplacement du fonds de commerce, sans le consentement du vendeur ou des créanciers gagistes, peut, s'il en résulte une dépréciation du fonds, rendre leurs créances exigibles.
L'inscription d'un nantissement peut également rendre exigibles les créances antérieures ayant pour cause l'exploitation du fonds.
Les demandes en déchéance du terme formées en vertu des deux alinéas précédents devant le tribunal de commerce sont soumises aux règles de procédure édictées par le quatrième alinéa de l'article L. 143-4.
Article L143-2
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Le propriétaire qui poursuit la résiliation du bail de l'immeuble dans lequel s'exploite un fonds de commerce grevé d'inscriptions doit notifier sa demande aux créanciers antérieurement inscrits, au domicile élu par eux dans leurs inscriptions. Le jugement ne peut intervenir qu'après un mois écoulé depuis la notification.
La résiliation amiable du bail ne devient définitive qu'un mois après la notification qui en a été faite aux créanciers inscrits, aux domiciles élus.
Article L143-3
Tout créancier qui exerce des poursuites de saisie-exécution et le débiteur contre lequel elles sont exercées peuvent demander, devant le tribunal de commerce dans le ressort duquel s'exploite le fonds, la vente du fonds de commerce du saisi avec le matériel et les marchandises qui en dépendent.
Sur la demande du créancier poursuivant, le tribunal de commerce ordonne qu'à défaut de paiement dans le délai imparti au débiteur, la vente du fonds a lieu à la requête dudit créancier, après l'accomplissement des formalités prescrites par l'article L. 143-6.
Il en est de même si, sur l'instance introduite par le débiteur, le créancier demande à poursuivre la vente du fonds.
S'il ne le demande pas, le tribunal de commerce fixe le délai dans lequel la vente du fonds doit avoir lieu à la requête du débiteur, suivant les formalités édictées par l'article L. 143-6, et il ordonne que, faute par le débiteur d'avoir fait procéder à la vente dans ledit délai, les poursuites de saisie-exécution sont reprises et continuées sur les derniers errements.
Article L143-4
Le tribunal nomme, s'il y a lieu, un administrateur provisoire du fonds, fixe les mises à prix, détermine les conditions principales de la vente, commet pour y procéder l'officier public qui dresse le cahier des charges.
La publicité extraordinaire, lorsqu'elle est utile, est réglée par le jugement ou, à défaut, par ordonnance du président du tribunal de commerce rendue sur requête.
Ce dernier peut, par la décision rendue, autoriser le poursuivant, s'il n'y a pas d'autre créancier inscrit ou opposant, et sauf prélèvement des frais privilégiés au profit de qui de droit, à toucher le prix directement et sur sa simple quittance, soit de l'adjudicataire, soit de l'officier public vendeur, selon les cas, en déduction ou jusqu'à concurrence de sa créance en principal, intérêts et frais.
Le tribunal de commerce statue, dans la quinzaine de la première audience, par jugement non susceptible d'opposition, exécutoire sur minute. L'appel du jugement est suspensif. Il est formé dans
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la quinzaine de sa signification à partie et jugé par la cour dans le mois. L'arrêt est exécutoire sur minute.
Article L143-5
Le vendeur et le créancier gagiste inscrits sur un fonds de commerce peuvent également, même en vertu de titres sous seing privé, faire ordonner la vente du fonds qui constitue leur gage, huit jours après sommation de payer faite au débiteur et au tiers détenteur, s'il y a lieu, demeurée infructueuse.
La demande est portée devant le tribunal de commerce dans le ressort duquel s'exploite ledit fonds, lequel statue comme il est dit à l'article L. 143-4.
Article L143-6
Le poursuivant fait sommation au propriétaire du fonds et aux créanciers inscrits antérieurement à la décision qui a ordonné la vente, au domicile élu par eux dans leurs inscriptions, quinze jours au moins avant la vente, de prendre communication du cahier des charges, de fournir leurs dires et observations et d'assister à l'adjudication, si bon leur semble.
La vente a lieu dix jours au moins après l'apposition d'affiches indiquant : les noms, professions, domiciles du poursuivant et du propriétaire du fonds, la décision en vertu de laquelle on agit, une élection de domicile dans le lieu où siège le tribunal de commerce dans le ressort duquel s'exploite le fonds, les divers éléments constitutifs dudit fonds, la nature de ses opérations, sa situation, les mises à prix, les lieu, jour et heure de l'adjudication, les nom et domicile de l'officier public commis et dépositaire du cahier des charges.
Ces affiches sont obligatoirement apposées, à la diligence de l'officier public, à la porte principale de l'immeuble et de la mairie de la commune où le fonds est situé, du tribunal de commerce dans le ressort duquel se trouve le fonds, et à la porte de l'étude de l'officier public commis.
L'affiche est insérée dix jours avant la vente dans un journal habilité à recevoir les annonces légales dans l'arrondissement ou le département dans lequel le fonds est situé.
La publicité est constatée par une mention faite dans le procès-verbal de vente.
Article L143-7
Il est statué, s'il y a lieu, sur les moyens de nullité de la procédure de vente antérieure à l'adjudication, et sur les dépens, par le président du tribunal de grande instance de l'arrondissement où s'exploite le fonds. Ces moyens doivent être opposés, à peine de déchéance, huit jours au moins avant l'adjudication. Le quatrième alinéa de l'article L. 143-4 est applicable à l'ordonnance rendue par le président.
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Article L143-8
Le tribunal de commerce, saisi de la demande en paiement d'une créance se rattachant à l'exploitation d'un fonds de commerce, peut, s'il prononce une condamnation et si le créancier le requiert, ordonner par le même jugement la vente du fonds. Il statue dans les termes des premier et deuxième alinéas de l'article L. 143-4 et fixe le délai après lequel, à défaut de paiement, la vente pourra être poursuivie.
Les dispositions du quatrième alinéa de l'article L. 143-4 et des articles L. 143-6 et L. 143-7 sont applicables à la vente ainsi ordonnée par le tribunal de commerce.
Article L143-9
Faute par l'adjudicataire d'exécuter les clauses de l'adjudication, le fonds est vendu à la folle enchère, selon les formes prescrites par les articles L. 143-6 et L. 143-7.
Le fol enchérisseur est tenu, envers les créanciers du vendeur et le vendeur lui-même, de la différence entre son prix et celui de la revente sur folle enchère, sans pouvoir réclamer l'excédent s'il y en a.
Article L143-10
Il n'est procédé à la vente séparée d'un ou plusieurs éléments d'un fonds de commerce grevé d'inscriptions, poursuivie soit sur saisie-exécution, soit en vertu des dispositions du présent chapitre, que dix jours au plus tôt après la notification de la poursuite aux créanciers qui se sont inscrits quinze jours au moins avant ladite notification, au domicile élu par eux dans leurs inscriptions. Pendant ce délai de dix jours, tout créancier inscrit, que sa créance soit ou non échue, peut assigner les intéressés devant le tribunal de commerce dans le ressort duquel s'exploite le fonds, pour demander qu'il soit procédé à la vente de tous les éléments du fonds, à la requête du poursuivant ou à sa propre requête, dans les termes et conformément aux dispositions des articles L. 143-3 à L. 143-7.
Le matériel et les marchandises sont vendus en même temps que le fonds sur des mises à prix distinctes, ou moyennant des prix distincts si le cahier des charges oblige l'adjudicataire à les prendre à dire d'experts.
Il y a lieu à ventilation du prix pour les éléments du fonds non grevés des privilèges inscrits.
Article L143-11
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Aucune surenchère n'est admise lorsque la vente a eu lieu dans les formes prescrites par les articles L. 141-19, L. 143-3 à L. 143-8, L. 143-10 et L. 143-13 à L. 143-15.
Article L143-12
Les privilèges du vendeur et du créancier gagiste suivent le fonds en quelques mains qu'il passe.
Lorsque la vente du fonds n'a pas eu lieu aux enchères publiques conformément aux articles mentionnés à l'article L. 143-11 l'acquéreur qui veut se garantir des poursuites des créanciers inscrits est tenu, à peine de déchéance, avant la poursuite ou dans la quinzaine de la sommation de payer à lui faite, d'effectuer des notifications à tous les créanciers inscrits, dans des conditions définies par décret.
Article L143-13
Tout créancier inscrit sur un fonds de commerce peut, lorsque l'article L. 143-11 n'est pas applicable, requérir sa mise aux enchères publiques, en offrant de porter le prix principal, non compris le matériel et les marchandises, à un dixième en sus et de donner caution pour le paiement des prix et charges ou de justifier de solvabilité suffisante.
Cette réquisition, signée du créancier, doit être, à peine de déchéance, signifiée à l'acquéreur et au débiteur précédent propriétaire dans la quinzaine des notifications, avec assignation devant le tribunal de commerce de la situation du fonds, pour voir statuer, en cas de contestation, sur la validité de la surenchère, sur l'admissibilité de la caution ou la solvabilité du surenchérisseur, et voir ordonner qu'il sera procédé à la mise aux enchères publiques du fonds avec le matériel et les marchandises qui en dépendent, et que l'acquéreur surenchéri sera tenu de communiquer son titre et l'acte de bail ou de cession de bail à l'officier public commis. Le délai de quinzaine ci-dessus n'est pas susceptible d'augmentation à raison de la distance entre le domicile élu et le domicile réel des créanciers inscrits.
Article L143-14
A partir de la signification de la surenchère, l'acquéreur, s'il est rentré en possession du fonds, en est de droit administrateur séquestre et ne peut plus accomplir que des actes d'administration. Toutefois, il peut demander au tribunal de commerce ou au juge des référés, suivant les cas, à tout moment de la procédure, la nomination d'un autre administrateur. Cette demande peut également être formée par tout créancier.
Le surenchérisseur ne peut, même en payant le montant de la soumission, empêcher par un désistement l'adjudication publique, si ce n'est du consentement de tous les créanciers inscrits.
Les formalités de la procédure et de la vente sont accomplies à la diligence du surenchérisseur et, à
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son défaut, de tout créancier inscrit ou de l'acquéreur, aux frais, risques et périls du surenchérisseur et sa caution restant engagée, selon les règles prescrites par les articles L. 143-4, L. 143-5 à L. 143-7 et par le troisième alinéa de l'article L. 143-10.
A défaut d'enchère, le créancier surenchérisseur est déclaré adjudicataire.
Article L143-15
L'adjudicataire est tenu de prendre le matériel et les marchandises existant au moment de la prise de possession, aux prix fixés par une expertise amiable ou judiciaire, contradictoirement entre l'acquéreur surenchéri, son vendeur et l'adjudicataire.
Il est tenu, au-delà de son prix d'adjudication, de rembourser à l'acquéreur dépossédé les frais et loyaux coûts de son contrat, ceux des notifications, ceux d'inscription et de publicité prévus par les articles L. 141-6 à L. 141-18, et, à qui de droit, ceux faits pour parvenir à la revente.
L'article L. 143-9 est applicable à la vente et à l'adjudication sur surenchère.
L'acquéreur surenchéri, qui se rend adjudicataire par suite de la revente sur surenchère, a son recours tel que de droit contre le vendeur pour le remboursement de ce qui excède le prix stipulé par son titre et pour l'intérêt de cet excédent à compter du jour de chaque paiement.
Section 2 : Des formalités d'inscription et de radiation.
Article L143-16
L'inscription et la radiation du privilège du vendeur ou du créancier gagiste sont soumises à des formalités dont les modalités sont fixées par décret en Conseil d'Etat.
Article L143-17
Outre les formalités d'inscription mentionnées à l'article L. 143-16, les ventes ou cessions de fonds de commerce comprenant des marques de fabrique et de commerce, des dessins ou modèles industriels, ainsi que les nantissements de fonds qui comprennent des brevets d'invention ou licences, des marques ou des dessins et modèles, doivent être inscrits à l'Institut national de la propriété industrielle, sur la production du certificat d'inscription délivré par le greffier du tribunal de commerce, dans la quinzaine qui suivra cette inscription, à peine de nullité à l'égard des tiers, des ventes, cessions ou nantissements en ce qu'ils s'appliquent aux brevets d'invention et aux licences, aux marques de fabrique et de commerce, aux dessins et modèles industriels.
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Les brevets d'invention compris dans la cession d'un fonds de commerce restent soumis pour leur transmission aux règles édictées aux articles L. 613-8 et suivants du code de la propriété intellectuelle.
Article L143-18
Si le titre d'où résulte le privilège inscrit est à ordre, la négociation par voie d'endossement emporte la translation du privilège.
Article L143-19
L'inscription conserve le privilège pendant dix années à compter du jour de sa date. Son effet cesse si elle n'a pas été renouvelée avant l'expiration de ce délai.
Elle garantit au même rang que le principal deux années d'intérêt.
Article L143-20
Les inscriptions sont rayées, soit du consentement des parties intéressées et ayant capacité à cet effet, soit en vertu d'un jugement passé en force de chose jugée.
A défaut de jugement, la radiation totale ou partielle ne peut être opérée par le greffier que sur le dépôt d'un acte authentique ou sous seing privé dûment enregistré de consentement à la radiation donné par le créancier ou son cessionnaire régulièrement subrogé et justifiant de ses droits.
La radiation totale ou partielle de l'inscription prise à l'Institut national de la propriété industrielle est opérée sur la production du certificat de radiation délivré par le greffier du tribunal de commerce.
Section 3 : Des intermédiaires et de la répartition du prix.
Article L143-21
Tout tiers détenteur du prix d'acquisition d'un fonds de commerce chez lequel domicile a été élu doit en faire la répartition dans les trois mois de la date de l'acte de vente.
A l'expiration de ce délai, la partie la plus diligente peut se pourvoir en référé devant la juridiction compétente du lieu de l'élection du domicile, qui ordonne soit le dépôt à la Caisse des dépôts et consignations, soit la nomination d'un séquestre répartiteur.
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Article L143-22
Lorsque la confiscation d'un fonds de commerce est prononcée par une juridiction répressive en application des articles 225-16, 225-19 et 225-22 du code pénal et 706-39 du code de procédure pénale, l'Etat doit procéder à la mise en vente du fonds confisqué selon les formes prévues par le présent titre dans un délai d'un an, sauf prorogation exceptionnelle de ce délai par ordonnance du président du tribunal de grande instance. Il n'est tenu à l'égard des créanciers qu'à concurrence du prix de vente de ce fonds.
Cette mise en vente doit être réalisée sous forme d'une annonce légale faite quarante-cinq jours au moins avant la vente, que celle-ci ait lieu par adjudication ou sous forme amiable.
Les sûretés inscrites après la date de la mention de l'engagement des poursuites pour l'une des infractions visées au premier alinéa sont nulles de plein droit sauf décision contraire du tribunal.
L'autorité administrative peut, à tout moment, demander la fixation du loyer à un taux correspondant à la valeur locative des locaux.
Lorsque le propriétaire du fonds confisqué est en même temps propriétaire des locaux dans lesquels le fonds est exploité, il doit être établi un bail dont les conditions sont fixées, à défaut d'accord amiable, par le président du tribunal de grande instance, qui statue dans les formes prévues pour les baux d'immeubles ou de locaux à usage commercial, industriel ou artisanal.
Article L143-23
Un décret en Conseil d'Etat détermine les mesures d'exécution des chapitres Ier et II ci-dessus et du présent chapitre, notamment les émoluments à allouer aux greffiers des tribunaux de commerce, les conditions dans lesquelles sont effectuées, à l'Institut national de la propriété industrielle, les inscriptions, radiations et délivrances d'états ou certificats négatifs concernant les ventes, cessions ou nantissements des fonds de commerce qui comprennent des brevets d'invention ou licences, des marques de fabrique et de commerce, des dessins et modèles industriels.
Il détermine, en outre, les droits à percevoir par le Conservatoire des arts et métiers, pour le service de l'Institut national de la propriété industrielle, sur les inscriptions et mentions d'antériorité, de subrogation et de radiation, les états d'inscriptions ou certificats qu'il n'en existe aucune.
Chapitre IV : De la location-gérance.
Article L144-1
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Nonobstant toute clause contraire, tout contrat ou convention par lequel le propriétaire ou l'exploitant d'un fonds de commerce ou d'un établissement artisanal en concède totalement ou partiellement la location à un gérant qui l'exploite à ses risques et périls est régi par les dispositions du présent chapitre.
Article L144-2
Le locataire-gérant a la qualité de commerçant. Il est soumis à toutes les obligations qui en découlent.
Lorsque le fonds est un établissement artisanal, le locataire-gérant est immatriculé au répertoire des métiers et est soumis à toutes les obligations qui en découlent.
Article L144-3
Les personnes physiques ou morales qui concèdent une location-gérance doivent avoir exploité pendant deux années au moins le fonds ou l'établissement artisanal mis en gérance.
Article L144-4
Le délai prévu par l'article L. 144-3 peut être supprimé ou réduit par ordonnance du président du tribunal de grande instance rendue sur simple requête de l'intéressé, le ministère public entendu, notamment lorsque celui-ci justifie qu'il est dans l'impossibilité d'exploiter son fonds personnellement ou par l'intermédiaire de préposés.
Article L144-5
L'article L. 144-3 n'est pas applicable :
1° A l'Etat ;
2° Aux collectivités territoriales ;
3° Aux établissements de crédit ;
4° Aux majeurs faisant l'objet d'une mesure de protection légale ou aux personnes hospitalisées en raison de troubles mentaux dans les conditions fixées par les articles L. 3211-2 et L. 3212-1 à L. 3212-12 du code de la santé publique, en ce qui concerne le fonds dont ils étaient propriétaires
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avant la mesure de protection légale ou avant la survenance de l'hospitalisation ;
5° Aux héritiers ou légataires d'un commerçant ou d'un artisan décédé, ainsi qu'aux bénéficiaires d'un partage d'ascendant, en ce qui concerne le fonds recueilli ;
6° A l'établissement public créé par l'article L. 325-1 du code de l'urbanisme ;
7° Au conjoint attributaire du fonds de commerce ou du fonds artisanal à la suite de la dissolution du régime matrimonial, lorsque ce conjoint a participé à son exploitation pendant au moins deux ans avant la dissolution du régime matrimonial ou son partage. ;
8° Au loueur de fonds de commerce, lorsque la location-gérance a pour objet principal d'assurer, sous contrat d'exclusivité, l'écoulement au détail des produits fabriqués ou distribués par lui-même ;
9° Aux loueurs de fonds de commerce de cinéma, théâtres et music-halls.
Article L144-6
Au moment de la location-gérance, les dettes du loueur du fonds afférentes à l'exploitation du fonds peuvent être déclarées immédiatement exigibles par le tribunal de commerce de la situation du fonds, s'il estime que la location-gérance met en péril leur recouvrement.
L'action doit être introduite, à peine de forclusion, dans le délai de trois mois à dater de la publication du contrat de gérance dans un journal habilité à recevoir les annonces légales.
Article L144-7
Jusqu'à la publication du contrat de location-gérance et pendant un délai de six mois à compter de cette publication, le loueur du fonds est solidairement responsable avec le locataire-gérant des dettes contractées par celui-ci à l'occasion de l'exploitation du fonds.
Article L144-8
Les dispositions des articles L. 144-3, L. 144-4 et L. 144-7 ne s'appliquent pas aux contrats de location-gérance passés par des mandataires de justice, chargés, à quelque titre que ce soit, de l'administration d'un fonds de commerce, à condition qu'ils aient été autorisés aux fins desdits contrats par l'autorité de laquelle ils tiennent leur mandat et qu'ils aient satisfait aux mesures de publicité prévues.
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Article L144-9
La fin de la location-gérance rend immédiatement exigibles les dettes afférentes à l'exploitation du fonds ou de l'établissement artisanal, contractées par le locataire-gérant pendant la durée de la gérance.
Article L144-10
Tout contrat de location-gérance ou toute autre convention comportant des clauses analogues, consenti par le propriétaire ou l'exploitant d'un fonds de commerce ne remplissant pas les conditions prévues aux articles ci-dessus, est nul. Toutefois, les contractants ne peuvent invoquer cette nullité à l'encontre des tiers.
La nullité prévue à l'alinéa précédent entraîne à l'égard des contractants la déchéance des droits qu'ils pourraient éventuellement tenir des dispositions du chapitre V du présent titre réglant les rapports entre bailleurs et locataires en ce qui concerne le renouvellement des baux à loyer d'immeubles ou de locaux à usage commercial, industriel ou artisanal.
Article L144-11
Si le contrat de location-gérance est assorti d'une clause d'échelle mobile, la révision du loyer peut, nonobstant toute convention contraire, être demandée chaque fois que, par le jeu de cette clause, ce loyer se trouve augmenté ou diminué de plus du quart par rapport au prix précédemment fixé contractuellement ou par décision judiciaire.
Si l'un des éléments retenus pour le calcul de la clause d'échelle mobile vient à disparaître, la révision ne peut être demandée et poursuivie que si les conditions économiques se sont modifiées au point d'entraîner une variation de plus du quart de la valeur locative du fonds.
Article L144-12
La partie qui veut demander la révision doit en faire la notification à l'autre partie par lettre recommandée avec demande d'avis de réception ou par acte extrajudiciaire.
A défaut d'accord amiable, l'instance est introduite et jugée conformément aux dispositions prévues en matière de révision du prix des baux à loyer d'immeubles ou de locaux à usage commercial ou industriel.
Le juge doit, en tenant compte de tous les éléments d'appréciation, adapter le jeu de l'échelle mobile à la valeur locative équitable au jour de la notification. Le nouveau prix est applicable à partir de
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cette même date, à moins que les parties ne se soient mises d'accord avant ou pendant l'instance sur une date plus ancienne ou plus récente.
Article L144-13
Les dispositions des articles L. 144-11 et L. 144-12 ne sont pas applicables aux opérations de crédit-bail en matière de fonds de commerce ou d'établissement artisanal mentionnées au 3° de l'article 1er de la loi n° 66-455 du 2 juillet 1966 relative aux entreprises pratiquant le crédit-bail.
Les dispositions de l'article L. 144-9 ne sont pas applicables lorsque le locataire-gérant qui a pris en location par un contrat de crédit-bail un fonds de commerce ou un établissement artisanal lève l'option d'achat.
Chapitre V : Du bail commercial.
Section 1 : Du champ d'application.
Article L145-1
I. - Les dispositions du présent chapitre s'appliquent aux baux des immeubles ou locaux dans lesquels un fonds est exploité, que ce fonds appartienne, soit à un commerçant ou à un industriel immatriculé au registre du commerce et des sociétés, soit à un chef d'une entreprise immatriculée au répertoire des métiers, accomplissant ou non des actes de commerce, et en outre :
1° Aux baux de locaux ou d'immeubles accessoires à l'exploitation d'un fonds de commerce quand leur privation est de nature à compromettre l'exploitation du fonds et qu'ils appartiennent au propriétaire du local ou de l'immeuble où est situé l'établissement principal. En cas de pluralité de propriétaires, les locaux accessoires doivent avoir été loués au vu et au su du bailleur en vue de l'utilisation jointe ;
2° Aux baux des terrains nus sur lesquels ont été édifiées - soit avant, soit après le bail - des constructions à usage commercial, industriel ou artisanal, à condition que ces constructions aient été élevées ou exploitées avec le consentement exprès du propriétaire.
II. - Si le fonds est exploité sous forme de location-gérance en application du chapitre IV du présent titre, le propriétaire du fonds bénéficie néanmoins des présentes dispositions sans avoir à justifier de l'immatriculation au registre du commerce et des sociétés ou au répertoire des métiers.
III. - Si le bail est consenti à plusieurs preneurs ou indivisaires, l'exploitant du fonds de commerce ou du fonds artisanal bénéficie des dispositions du présent chapitre, même en l'absence d'immatriculation au registre du commerce et des sociétés ou au répertoire des métiers de ses copreneurs ou coindivisaires non exploitants du fonds. En cas de décès du titulaire du bail, ces
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mêmes dispositions s'appliquent à ses héritiers ou ayants droit qui, bien que n'exploitant pas de fonds de commerce ou de fonds artisanal, demandent le maintien de l'immatriculation de leur ayant cause pour les besoins de sa succession.
Article L145-2
I.-Les dispositions du présent chapitre s'appliquent également :
1° Aux baux des locaux ou immeubles abritant des établissements d'enseignement ;
2° Aux baux consentis aux communes pour des immeubles ou des locaux affectés, soit au moment de la location, soit ultérieurement et avec le consentement exprès ou tacite du propriétaire, à des services exploités en régie ;
3° Aux baux d'immeubles ou de locaux principaux ou accessoires, nécessaires à la poursuite de l'activité des entreprises publiques et établissements publics à caractère industriel ou commercial, dans les limites définies par les lois et règlements qui les régissent et à condition que ces baux ne comportent aucune emprise sur le domaine public ;
4° Sous réserve des dispositions de l'article L. 145-26 aux baux des locaux ou immeubles appartenant à l'Etat, aux collectivités territoriales et aux établissements publics, dans le cas où ces locaux ou immeubles satisfont aux dispositions de l'article L. 145-1 ou aux 1° et 2° ci-dessus ;
5° Aux baux d'immeubles abritant soit des sociétés coopératives ayant la forme commerciale ou un objet commercial, soit des sociétés coopératives de crédit, soit des caisses d'épargne et de prévoyance ;
6° Aux baux des locaux consentis à des artistes admis à cotiser à la caisse de sécurité sociale de la maison des artistes et reconnus auteurs d'oeuvres graphiques et plastiques, tels que définis par l'article 98 A de l'annexe III du code général des impôts ;
7° Par dérogation à l'article 57 A de la loi n° 86-1290 du 23 décembre 1986 tendant à favoriser l'investissement locatif, l'accession à la propriété de logements sociaux et le développement de l'offre foncière, aux baux d'un local affecté à un usage exclusivement professionnel si les parties ont conventionnellement adopté ce régime.
II.-Toutefois, les dispositions du présent chapitre ne sont pas applicables aux autorisations d'occupation précaire accordées par l'administration sur un immeuble acquis par elle à la suite d'une déclaration d'utilité publique. Elles ne sont également pas applicables, pendant la période d'un an mentionnée au premier alinéa de l'article L. 214-2 du code de l'urbanisme, aux fonds artisanaux, aux fonds de commerce ou aux baux commerciaux préemptés en application de l'article L. 214-1 du même code.
Article L145-3
Les dispositions du présent chapitre ne sont pas applicables aux baux emphytéotiques, sauf en ce qui concerne la révision du loyer. Toutefois, elles s'appliquent, dans les cas prévus aux articles L. 145-1 et L. 145-2, aux baux passés par les emphytéotes, sous réserve que la durée du renouvellement consenti à leurs sous-locataires n'ait pas pour effet de prolonger l'occupation des lieux au-delà de la date d'expiration du bail emphytéotique.
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Section 2 : De la durée.
Article L145-4
La durée du contrat de location ne peut être inférieure à neuf ans.
Toutefois, à défaut de convention contraire, le preneur a la faculté de donner congé à l'expiration d'une période triennale, dans les formes et délai de l'article L. 145-9.
Le bailleur a la même faculté s'il entend invoquer les dispositions des articles L. 145-18, L. 145-21, L. 145-23-1 et L. 145-24 afin de construire, de reconstruire ou de surélever l'immeuble existant, de réaffecter le local d'habitation accessoire à cet usage ou d'exécuter des travaux prescrits ou autorisés dans le cadre d'une opération de restauration immobilière et en cas de démolition de l'immeuble dans le cadre d'un projet de renouvellement urbain.
Le preneur ayant demandé à bénéficier de ses droits à la retraite du régime social auquel il est affilié ou ayant été admis au bénéfice d'une pension d'invalidité attribuée dans le cadre de ce régime social a la faculté de donner congé dans les formes et délais de l'article L. 145-9.
Les dispositions de l'alinéa précédent sont applicables à l'associé unique d'une entreprise unipersonnelle à responsabilité limitée, ou au gérant majoritaire depuis au moins deux ans d'une société à responsabilité limitée, lorsque celle-ci est titulaire du bail.
Article L145-5
Les parties peuvent, lors de l'entrée dans les lieux du preneur, déroger aux dispositions du présent chapitre à la condition que la durée totale du bail ou des baux successifs ne soit pas supérieure à deux ans.
Si, à l'expiration de cette durée, le preneur reste et est laissé en possession, il s'opère un nouveau bail dont l'effet est réglé par les dispositions du présent chapitre.
Il en est de même , à l'expiration de cette durée, en cas de renouvellement exprès du bail ou de conclusion, entre les mêmes parties, d'un nouveau bail pour le même local.
Les dispositions des deux alinéas précédents ne sont pas applicables s'il s'agit d'une location à caractère saisonnier.
Article L145-6
Le bailleur d'un local à usage commercial, industriel ou artisanal peut, au cours du bail originaire ou d'un bail renouvelé, reprendre les lieux en tout ou partie pour exécuter des travaux nécessitant
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l'évacuation des lieux compris dans un secteur ou périmètre prévu aux articles L. 313-4 et L. 313-4-2 du code de l'urbanisme et autorisés ou prescrits dans les conditions prévues auxdits articles, s'il offre de reporter le bail sur un local équivalent dans le même immeuble ou dans un autre immeuble. Cette offre précise les caractéristiques du local offert, lequel doit permettre la continuation de l'exercice de l'activité antérieure du locataire. L'offre doit être notifiée un an à l'avance.
Le locataire doit, dans un délai de deux mois, soit faire connaître son acceptation, soit saisir des motifs de son refus la juridiction compétente, faute de quoi il est réputé avoir accepté l'offre.
Article L145-7
Le locataire dont le bail est reporté a droit à une indemnité de dépossession qui comprend l'indemnisation des conséquences dommageables de la privation temporaire de jouissance, compte tenu, s'il y a lieu, de l'installation provisoire réalisée aux frais du bailleur et du remboursement de ses frais normaux de déménagement et de réinstallation.
Lorsque l'offre a été acceptée ou reconnue valable par la juridiction compétente, et après l'expiration du délai d'un an à compter de la ratification de l'offre, le locataire doit quitter les lieux dès la mise à la disposition effective du local offert et le versement d'une indemnité provisionnelle dont le montant est fixé dans les formes prévues à l'article L. 145-19.
Les prix et les conditions accessoires du bail peuvent être modifiés à la demande de la partie la plus diligente.
Article L145-7-1
Les baux commerciaux signés entre les propriétaires et les exploitants de résidences de tourisme mentionnées à l'article L. 321-1 du code du tourisme sont d'une durée de neuf ans minimum, sans possibilité de résiliation à l'expiration d'une période triennale.
Section 3 : Du renouvellement.
Article L145-8
Le droit au renouvellement du bail ne peut être invoqué que par le propriétaire du fonds qui est exploité dans les lieux.
Le fonds transformé, le cas échéant, dans les conditions prévues à la section 8 du présent chapitre, doit, sauf motifs légitimes, avoir fait l'objet d'une exploitation effective au cours des trois années qui ont précédé la date d'expiration du bail ou de sa reconduction telle qu'elle est prévue à l'article L. 145-9, cette dernière date étant soit la date pour laquelle le congé a été donné, soit, si une demande de renouvellement a été faite, le premier jour du trimestre civil qui suit cette demande.
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Article L145-9
Par dérogation aux articles 1736 et 1737 du code civil, les baux de locaux soumis aux dispositions du présent chapitre ne cessent que par l'effet d'un congé donné pour le dernier jour du trimestre civil et au moins six mois à l'avance.
A défaut de congé ou de demande de renouvellement, le bail fait par écrit se poursuit par tacite reconduction au-delà du terme fixé par le contrat, conformément à l'article 1738 du code civil et sous les réserves prévues à l'alinéa précédent.
Le bail dont la durée est subordonnée à un événement dont la réalisation autorise le bailleur à demander la résiliation ne cesse, au-delà de la durée de neuf ans, que par l'effet d'une notification faite six mois à l'avance et pour le dernier jour du trimestre civil. Cette notification doit mentionner la réalisation de l'événement prévu au contrat.
S'agissant d'un bail comportant plusieurs périodes, si le bailleur dénonce le bail à la fin des neuf premières années ou à l'expiration de l'une des périodes suivantes, le congé doit être donné dans les délais prévus à l'alinéa premier ci-dessus.
Le congé doit être donné par acte extrajudiciaire. Il doit, à peine de nullité, préciser les motifs pour lesquels il est donné et indiquer que le locataire qui entend, soit contester le congé, soit demander le paiement d'une indemnité d'éviction, doit saisir le tribunal avant l'expiration d'un délai de deux ans à compter de la date pour laquelle le congé a été donné.
Article L145-10
A défaut de congé, le locataire qui veut obtenir le renouvellement de son bail doit en faire la demande soit dans les six mois qui précèdent l'expiration du bail, soit, le cas échéant, à tout moment au cours de sa reconduction.
La demande en renouvellement doit être signifiée au bailleur par acte extrajudiciaire. Sauf stipulations ou notifications contraires de la part de celui-ci, elle peut, aussi bien qu'à lui-même, lui être valablement adressée en la personne du gérant, lequel est réputé avoir qualité pour la recevoir. S'il y a plusieurs propriétaires, la demande adressée à l'un d'eux vaut, sauf stipulations ou notifications contraires, à l'égard de tous.
Elle doit, à peine de nullité, reproduire les termes de l'alinéa ci-dessous.
Dans les trois mois de la signification de la demande en renouvellement, le bailleur doit, dans les mêmes formes, faire connaître au demandeur s'il refuse le renouvellement en précisant les motifs de ce refus. A défaut d'avoir fait connaître ses intentions dans ce délai, le bailleur est réputé avoir accepté le principe du renouvellement du bail précédent.
L'acte extrajudiciaire notifiant le refus de renouvellement doit, à peine de nullité, indiquer que le locataire qui entend, soit contester le refus de renouvellement, soit demander le paiement d'une indemnité d'éviction, doit saisir le tribunal avant l'expiration d'un délai de deux ans à compter de la
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date à laquelle est signifié le refus de renouvellement.
Article L145-11
Le bailleur qui, sans être opposé au principe du renouvellement, désire obtenir une modification du prix du bail doit, dans le congé prévu à l'article L. 145-9 ou dans la réponse à la demande de renouvellement prévue à l'article L. 145-10, faire connaître le loyer qu'il propose, faute de quoi le nouveau prix n'est dû qu'à compter de la demande qui en est faite ultérieurement suivant des modalités définies par décret en Conseil d'Etat.
Article L145-12
La durée du bail renouvelé est de neuf ans sauf accord des parties pour une durée plus longue.
Les dispositions des deuxième et troisième alinéas de l'article L. 145-4 sont applicables au cours du bail renouvelé.
Le nouveau bail prend effet à compter de l'expiration du bail précédent, ou, le cas échéant, de sa reconduction, cette dernière date étant soit celle pour laquelle le congé a été donné, soit, si une demande de renouvellement a été faite, le premier jour du trimestre civil qui suit cette demande.
Toutefois, lorsque le bailleur a notifié, soit par un congé, soit par un refus de renouvellement, son intention de ne pas renouveler le bail, et si, par la suite, il décide de le renouveler, le nouveau bail prend effet à partir du jour où cette acceptation a été notifiée au locataire par acte extrajudiciaire.
Article L145-13
Sous réserve des dispositions de la loi du 28 mai 1943 relative à l'application aux étrangers des lois en matière de baux à loyer et de baux à ferme, les dispositions de la présente section ne peuvent être invoquées par des commerçants, industriels ou personnes immatriculées au répertoire des métiers de nationalité étrangère, agissant directement ou par personne interposée, à moins que, pendant les guerres de 1914 et de 1939, ils n'aient combattu dans les armées françaises ou alliées, ou qu'ils n'aient des enfants ayant la qualité de Français.
L'alinéa précédent n'est pas applicable aux ressortissants d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen.
Section 4 : Du refus de renouvellement.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Article L145-14
Le bailleur peut refuser le renouvellement du bail. Toutefois, le bailleur doit, sauf exceptions prévues aux articles L. 145-17 et suivants, payer au locataire évincé une indemnité dite d'éviction égale au préjudice causé par le défaut de renouvellement.
Cette indemnité comprend notamment la valeur marchande du fonds de commerce, déterminée suivant les usages de la profession, augmentée éventuellement des frais normaux de déménagement et de réinstallation, ainsi que des frais et droits de mutation à payer pour un fonds de même valeur, sauf dans le cas où le propriétaire fait la preuve que le préjudice est moindre.
Article L145-15
Sont nuls et de nul effet, quelle qu'en soit la forme, les clauses, stipulations et arrangements qui ont pour effet de faire échec au droit de renouvellement institué par le présent chapitre ou aux dispositions des articles L. 145-4, L. 145-37 à L. 145-41, du premier alinéa de l'article L. 145-42 et des articles L. 145-47 à L. 145-54.
Article L145-16
Sont également nulles, quelle qu'en soit la forme, les conventions tendant à interdire au locataire de céder son bail ou les droits qu'il tient du présent chapitre à l'acquéreur de son fonds de commerce ou de son entreprise.
En cas de fusion de sociétés ou d'apport d'une partie de l'actif d'une société réalisé dans les conditions prévues à l'article L. 236-22 la société issue de la fusion ou la société bénéficiaire de l'apport est, nonobstant toute stipulation contraire, substituée à celle au profit de laquelle le bail était consenti dans tous les droits et obligations découlant de ce bail.
En cas de cession, de fusion ou d'apport, si l'obligation de garantie ne peut plus être assurée dans les termes de la convention, le tribunal peut y substituer toutes garanties qu'il juge suffisantes.
Article L145-17
I. - Le bailleur peut refuser le renouvellement du bail sans être tenu au paiement d'aucune indemnité :
1° S'il justifie d'un motif grave et légitime à l'encontre du locataire sortant. Toutefois, s'il s'agit soit de l'inexécution d'une obligation, soit de la cessation sans raison sérieuse et légitime de l'exploitation du fonds, compte tenu des dispositions de l'article L. 145-8, l'infraction commise par
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le preneur ne peut être invoquée que si elle s'est poursuivie ou renouvelée plus d'un mois après mise en demeure du bailleur d'avoir à la faire cesser. Cette mise en demeure doit, à peine de nullité, être effectuée par acte extrajudiciaire, préciser le motif invoqué et reproduire les termes du présent alinéa ;
2° S'il est établi que l'immeuble doit être totalement ou partiellement démoli comme étant en état d'insalubrité reconnue par l'autorité administrative ou s'il est établi qu'il ne peut plus être occupé sans danger en raison de son état.
II. - En cas de reconstruction par le propriétaire ou son ayant droit d'un nouvel immeuble comprenant des locaux commerciaux, le locataire a droit de priorité pour louer dans l'immeuble reconstruit, sous les conditions prévues par les articles L. 145-19 et L. 145-20.
Article L145-18
Le bailleur a le droit de refuser le renouvellement du bail pour construire ou reconstruire l'immeuble existant, à charge de payer au locataire évincé l'indemnité d'éviction prévue à l'article L. 145-14.
Il en est de même pour effectuer des travaux nécessitant l'évacuation des lieux compris dans un secteur ou périmètre prévu aux articles L. 313-4 et L. 313-4-2 du code de l'urbanisme et autorisés ou prescrits dans les conditions prévues audits articles.
Toutefois, le bailleur peut se soustraire au paiement de cette indemnité en offrant au locataire évincé un local correspondant à ses besoins et possibilités, situé à un emplacement équivalent.
Le cas échéant, le locataire perçoit une indemnité compensatrice de sa privation temporaire de jouissance et de la moins-value de son fonds. Il est en outre remboursé de ses frais normaux de déménagement et d'emménagement.
Lorsque le bailleur invoque le bénéfice du présent article, il doit, dans l'acte de refus de renouvellement ou dans le congé, viser les dispositions de l'alinéa 3 et préciser les nouvelles conditions de location. Le locataire doit, dans un délai de trois mois, soit faire connaître par acte extrajudiciaire son acceptation, soit saisir la juridiction compétente dans les conditions prévues à l'article L. 145-58.
Si les parties sont seulement en désaccord sur les conditions du nouveau bail, celles-ci sont fixées selon la procédure prévue à l'article L. 145-56.
Article L145-19
Pour bénéficier du droit de priorité prévu à l'article L. 145-17, le locataire doit, en quittant les lieux ou, au plus tard dans les trois mois qui suivent, notifier sa volonté d'en user au propriétaire, par acte extrajudiciaire, en lui faisant connaître son nouveau domicile ; il doit notifier de même, sous peine de déchéance, tout nouveau changement de domicile.
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Le propriétaire qui a reçu une telle notification doit, avant de louer ou d'occuper lui-même un nouveau local, aviser de la même manière le locataire qu'il est prêt à lui consentir un nouveau bail. A défaut d'accord entre les parties sur les conditions de ce bail, celles-ci sont déterminées selon la procédure prévue à l'article L. 145-56.
Le locataire a un délai de trois mois pour se prononcer ou saisir la juridiction compétente. Ce délai doit, à peine de nullité, être indiqué dans la notification visée à l'alinéa précédent. Passé ce délai, le propriétaire peut disposer du local.
Le propriétaire qui ne se conformerait pas aux dispositions des alinéas précédents est passible, sur demande de son locataire, du paiement à ce dernier de dommages-intérêts.
Article L145-20
Lorsque l'immeuble reconstruit, dans les conditions prévues à l'article L. 145-17, possède une superficie supérieure à celle de l'immeuble primitif, le droit de priorité est limité à des locaux possédant une superficie équivalente à celle des locaux précédemment occupés ou susceptibles de satisfaire aux mêmes besoins commerciaux que ces derniers.
Lorsque l'immeuble reconstruit ne permet pas la réinstallation de tous les occupants, la préférence est accordée aux locataires titulaires des baux les plus anciens qui ont fait connaître leur intention d'occuper les lieux.
Article L145-21
Le propriétaire peut également différer pendant une durée maximum de trois ans le renouvellement du bail, s'il se propose de surélever l'immeuble et si cette surélévation rend nécessaire l'éviction temporaire du locataire. Celui-ci a droit, dans ce cas, à une indemnité égale au préjudice subi sans pouvoir excéder trois ans de loyer.
Article L145-22
Le bailleur peut refuser le renouvellement du bail exclusivement sur la partie concernant les locaux d'habitation accessoires des locaux commerciaux pour habiter lui-même ceux-ci ou les faire habiter par son conjoint, ses ascendants, ses descendants ou ceux de son conjoint, à condition que le bénéficiaire de la reprise ne dispose pas d'une habitation correspondant à ses besoins normaux et à ceux des membres de sa famille vivant habituellement ou domiciliés avec lui.
Toutefois, la reprise dans les conditions ci-dessus indiquées ne peut être exercée sur des locaux affectés à usage d'hôtel ou de location en meublé, ni sur des locaux à usage hospitalier ou d'enseignement.
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De même, la reprise ne peut être exercée lorsque le locataire établit que la privation de jouissance des locaux d'habitation apporte un trouble grave à l'exploitation du fonds ou lorsque les locaux commerciaux et les locaux d'habitation forment un tout indivisible.
Lorsque l'immeuble a été acquis à titre onéreux, le bailleur ne peut bénéficier des dispositions du présent article que si son acte d'acquisition a date certaine plus de six ans avant le refus de renouvellement.
Le bénéficiaire du droit de reprise est tenu de mettre à la disposition du locataire dont il reprend le local, le logement qui, le cas échéant, pourrait être rendu vacant par l'exercice de ce droit.
Dans le cas de reprise partielle prévu au présent article, le loyer du bail renouvelé tient compte du préjudice causé au locataire ou à son ayant droit dans l'exercice de son activité.
Sauf motif légitime, le bénéficiaire de la reprise doit occuper personnellement les lieux dans un délai de six mois à dater du départ du locataire évincé et pendant une durée minimum de six ans, faute de quoi le locataire évincé a droit à une indemnité d'éviction en rapport avec l'importance des locaux repris.
Article L145-23
Les dispositions de l'article L. 145-22 ne sont pas applicables aux bailleurs de nationalité étrangère, agissant directement ou par personne interposée, à moins que, pendant les guerres de 1914 et de 1939, ils n'aient combattu dans les armées françaises ou alliées, ou qu'ils n'aient des enfants ayant la qualité de Français.
L'alinéa précédent n'est pas applicable aux ressortissants d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen.
Article L145-23-1
Le bailleur peut, à l'expiration d'une période triennale, dans les formes prévues par l'article L. 145-9 et au moins six mois à l'avance, reprendre les locaux d'habitation loués accessoirement aux locaux commerciaux s'ils ne sont pas affectés à cet usage d'habitation. La reprise ne peut être exercée que si, après un délai de six mois suivant le congé délivré à cet effet, les locaux ne sont pas utilisés à usage d'habitation.
Toutefois, la reprise dans les conditions indiquées au premier alinéa ne peut être exercée sur des locaux affectés à usage d'hôtel ou de location en meublé, ni sur des locaux à usage hospitalier ou d'enseignement.
De même, la reprise ne peut être exercée lorsque le locataire établit que la privation de jouissance
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des locaux d'habitation apporte un trouble grave à l'exploitation du fonds ou lorsque les locaux commerciaux et les locaux d'habitation forment un tout indivisible.
Dans le cas de reprise partielle prévu au présent article, le loyer du bail est diminué pour tenir compte des surfaces retranchées sans que cette reprise puisse en elle-même constituer une modification notable des éléments de la valeur locative mentionnée à l'article L. 145-33.
Article L145-24
Le droit au renouvellement n'est pas opposable au propriétaire qui a obtenu un permis de construire un local d'habitation sur tout ou partie d'un des terrains visés au 2° de l'article L. 145-1.
Ce droit de reprise ne peut, en tout état de cause, être exercé que sur la partie du terrain indispensable à la construction. S'il a pour effet d'entraîner obligatoirement la cessation de l'exploitation commerciale, industrielle ou artisanale, les dispositions de l'article L. 145-18 sont applicables.
Article L145-25
Le propriétaire ou le principal locataire qui, en même temps qu'il est bailleur des lieux, est le vendeur du fonds de commerce qui y est exploité et qui a reçu le prix intégral ne peut refuser le renouvellement qu'à la charge de payer l'indemnité d'éviction prévue à l'article L. 145-14, sauf s'il justifie d'un motif reconnu grave et légitime à l'encontre du preneur.
Article L145-26
Le renouvellement des baux concernant des immeubles appartenant à l'Etat, aux collectivités territoriales et aux établissements publics ne peut être refusé sans que la collectivité propriétaire soit tenue au paiement de l'indemnité d'éviction prévue à l'article L. 145-14, même si son refus est justifié par une raison d'utilité publique.
Article L145-27
Au cas où il viendrait à être établi à la charge du bailleur qu'il n'a exercé les droits qui lui sont conférés aux articles L. 145-17 et suivants qu'en vue de faire échec frauduleusement aux droits du locataire, notamment par des opérations de location et de revente, que ces opérations aient un caractère civil ou commercial, le locataire a droit à une indemnité égale au montant du préjudice subi.
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Article L145-28
Aucun locataire pouvant prétendre à une indemnité d'éviction ne peut être obligé de quitter les lieux avant de l'avoir reçue. Jusqu'au paiement de cette indemnité, il a droit au maintien dans les lieux aux conditions et clauses du contrat de bail expiré. Toutefois, l'indemnité d'occupation est déterminée conformément aux dispositions des sections 6 et 7, compte tenu de tous éléments d'appréciation.
Par dérogation au précédent alinéa, dans le seul cas prévu au deuxième alinéa de l'article L. 145-18, le locataire doit quitter les lieux dès le versement d'une indemnité provisionnelle fixée par le président du tribunal de grande instance statuant au vu d'une expertise préalablement ordonnée dans les formes fixées par décret en Conseil d'Etat, en application de l'article L. 145-56.
Article L145-29
En cas d'éviction, les lieux doivent être remis au bailleur à l'expiration d'un délai de trois mois suivant la date du versement de l'indemnité d'éviction au locataire lui-même ou de la notification à celui-ci du versement de l'indemnité à un séquestre. A défaut d'accord entre les parties, le séquestre est nommé par le jugement prononçant condamnation au paiement de l'indemnité ou à défaut par simple ordonnance sur requête.
L'indemnité est versée par le séquestre au locataire sur sa seule quittance, s'il n'y a pas d'opposition des créanciers et contre remise des clés du local vide, sur justification du paiement des impôts, des loyers et sous réserve des réparations locatives.
Article L145-30
En cas de non-remise des clés à la date fixée et après mise en demeure, le séquestre retient 1 % par jour de retard sur le montant de l'indemnité et restitue cette retenue au bailleur sur sa seule quittance.
Lorsque le délai de quinzaine prévu à l'article L. 145-58 a pris fin sans que le bailleur ait usé de son droit de repentir, l'indemnité d'éviction doit être versée au locataire ou, éventuellement, à un séquestre, dans un délai de trois mois à compter de la date d'un commandement fait par acte extrajudiciaire qui doit, à peine de nullité, reproduire le présent alinéa.
Section 5 : De la sous-location.
Article L145-31
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Sauf stipulation contraire au bail ou accord du bailleur, toute sous-location totale ou partielle est interdite.
En cas de sous-location autorisée, le propriétaire est appelé à concourir à l'acte.
Lorsque le loyer de la sous-location est supérieur au prix de la location principale, le propriétaire a la faculté d'exiger une augmentation correspondante du loyer de la location principale, augmentation qui, à défaut d'accord entre les parties, est déterminée selon une procédure fixée par décret en Conseil d'Etat, en application des dispositions de l'article L. 145-56.
Le locataire doit faire connaître au propriétaire son intention de sous-louer par acte extrajudiciaire ou par lettre recommandée avec demande d'avis de réception. Dans les quinze jours de la réception de cet avis, le propriétaire doit faire connaître s'il entend concourir à l'acte. Si, malgré l'autorisation prévue au premier alinéa, le bailleur refuse ou s'il omet de répondre, il est passé outre.
Article L145-32
Le sous-locataire peut demander le renouvellement de son bail au locataire principal dans la mesure des droits que ce dernier tient lui-même du propriétaire. Le bailleur est appelé à concourir à l'acte, comme il est prévu à l'article L. 145-31.
A l'expiration du bail principal, le propriétaire n'est tenu au renouvellement que s'il a, expressément ou tacitement, autorisé ou agréé la sous-location et si, en cas de sous-location partielle, les lieux faisant l'objet du bail principal ne forment pas un tout indivisible matériellement ou dans la commune intention des parties.
Section 6 : Du loyer.
Article L145-33
Le montant des loyers des baux renouvelés ou révisés doit correspondre à la valeur locative.
A défaut d'accord, cette valeur est déterminée d'après :
1 Les caractéristiques du local considéré ;
2 La destination des lieux ;
3 Les obligations respectives des parties ;
4 Les facteurs locaux de commercialité ;
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5 Les prix couramment pratiqués dans le voisinage ;
Un décret en Conseil d'Etat précise la consistance de ces éléments.
Article L145-34
A moins d'une modification notable des éléments mentionnés aux 1° à 4° de l'article L. 145-33, le taux de variation du loyer applicable lors de la prise d'effet du bail à renouveler, si sa durée n'est pas supérieure à neuf ans, ne peut excéder la variation, intervenue depuis la fixation initiale du loyer du bail expiré, de l'indice national trimestriel mesurant le coût de la construction ou, s'il est applicable, de l'indice trimestriel des loyers commerciaux mentionné au premier alinéa de l'article L. 112-2 du code monétaire et financier, publiés par l'Institut national de la statistique et des études économiques.A défaut de clause contractuelle fixant le trimestre de référence de cet indice, il y a lieu de prendre en compte la variation de l'indice national trimestriel mesurant le coût de la construction ou, s'il est applicable, de l'indice trimestriel des loyers commerciaux, calculée sur la période de neuf ans antérieure au dernier indice publié.
En cas de renouvellement postérieur à la date initialement prévue d'expiration du bail, cette variation est calculée à partir du dernier indice publié, pour une période d'une durée égale à celle qui s'est écoulée entre la date initiale du bail et la date de son renouvellement effectif.
Les dispositions de l'alinéa ci-dessus ne sont plus applicables lorsque, par l'effet d'une tacite reconduction, la durée du bail excède douze ans.
Article L145-35
Les litiges nés de l'application de l'article L. 145-34 sont soumis à une commission départementale de conciliation composée de bailleurs et de locataires en nombre égal et de personnes qualifiées. La commission s'efforce de concilier les parties et rend un avis.
Si le juge est saisi parallèlement à la commission compétente par l'une ou l'autre des parties, il ne peut statuer tant que l'avis de la commission n'est pas rendu.
La commission est dessaisie si elle n'a pas statué dans un délai de trois mois.
La composition de la commission, le mode de désignation de ses membres et ses règles de fonctionnement sont fixés par décret.
Article L145-36
Les éléments permettant de déterminer le prix des baux des terrains, des locaux construits en vue d'une seule utilisation et des locaux à usage exclusif de bureaux sont fixés par décret en Conseil d'Etat.
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Article L145-37
Les loyers des baux d'immeubles ou de locaux régis par les dispositions du présent chapitre, renouvelés ou non, peuvent être révisés à la demande de l'une ou de l'autre des parties sous les réserves prévues aux articles L. 145-38 et L. 145-39 et dans des conditions fixées par décret en Conseil d'Etat.
Article L145-38
La demande en révision ne peut être formée que trois ans au moins après la date d'entrée en jouissance du locataire ou après le point de départ du bail renouvelé.
De nouvelles demandes peuvent être formées tous les trois ans à compter du jour où le nouveau prix sera applicable.
Par dérogation aux dispositions de l'article L. 145-33, et à moins que ne soit rapportée la preuve d'une modification matérielle des facteurs locaux de commercialité ayant entraîné par elle-même une variation de plus de 10 % de la valeur locative, la majoration ou la diminution de loyer consécutive à une révision triennale ne peut excéder la variation de l'indice trimestriel du coût de la construction ou, s'il est applicable, de l'indice trimestriel des loyers commerciaux mentionné au premier alinéa de l'article L. 112-2 du code monétaire et financier, intervenue depuis la dernière fixation amiable ou judiciaire du loyer.
En aucun cas il n'est tenu compte, pour le calcul de la valeur locative, des investissements du preneur ni des plus ou moins-values résultant de sa gestion pendant la durée du bail en cours.
Article L145-39
En outre, et par dérogation à l'article L. 145-38, si le bail est assorti d'une clause d'échelle mobile, la révision peut être demandée chaque fois que, par le jeu de cette clause, le loyer se trouve augmenté ou diminué de plus d'un quart par rapport au prix précédemment fixé contractuellement ou par décision judiciaire.
Article L145-40
Les loyers payés d'avance, sous quelque forme que ce soit, et même à titre de garantie, portent intérêt au profit du locataire, au taux pratiqué par la Banque de France pour les avances sur titres, pour les sommes excédant celle qui correspond au prix du loyer de plus de deux termes.
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Section 7 : De la résiliation
Article L145-41
Toute clause insérée dans le bail prévoyant la résiliation de plein droit ne produit effet qu'un mois après un commandement demeuré infructueux. Le commandement doit, à peine de nullité, mentionner ce délai.
Les juges saisis d'une demande présentée dans les formes et conditions prévues aux articles 1244-1 à 1244-3 du code civil peuvent, en accordant des délais, suspendre la réalisation et les effets des clauses de résiliation, lorsque la résiliation n'est pas constatée ou prononcée par une décision de justice ayant acquis l'autorité de la chose jugée. La clause résolutoire ne joue pas, si le locataire se libère dans les conditions fixées par le juge.
Article L145-42
Les clauses de résiliation de plein droit pour cessation d'activité cessent de produire effet pendant le temps nécessaire à la réalisation des transformations faites en application des dispositions de la section 8.
Ce délai ne saurait excéder six mois à dater de l'accord sur la déspécialisation ou de la décision judiciaire l'autorisant.
Article L145-43
Sont dispensés de l'obligation d'exploiter pendant la durée de leur stage les commerçants et personnes immatriculées au répertoire des métiers, locataires du local dans lequel est situé leur fonds, qui sont admis à suivre un stage de conversion ou un stage de promotion au sens de l'article L. 900-2 (3° et 5°) du code du travail, dont la durée minimum est fixée par arrêté et dont la durée maximum ne peut excéder un an sauf s'il s'agit d'un stage dit de promotion bénéficiant de l'agrément prévu à l'article L. 961-3 dudit code.
Article L145-44
Dans le cas où, à l'issue d'un des stages prévus à l'article L. 145-43, le commerçant ou l'artisan quitte le local dont il est locataire pour convertir son activité en la transférant dans un autre local ou pour prendre une activité salariée, la résiliation du bail intervient de plein droit et sans indemnité à l'expiration d'un délai de trois mois à partir du jour où elle est signifiée au bailleur.
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Article L145-45
Le redressement et la liquidation judiciaires n'entraînent pas, de plein droit, la résiliation du bail des immeubles affectés à l'industrie, au commerce ou à l'artisanat du débiteur, y compris les locaux dépendant de ces immeubles et servant à son habitation ou à celle de sa famille. Toute stipulation contraire est réputée non écrite.
Article L145-46
Lorsqu'il est à la fois propriétaire de l'immeuble loué et du fonds de commerce qui y est exploité et que le bail porte en même temps sur les deux, le bailleur doit verser au locataire, à son départ, une indemnité correspondant au profit qu'il peut retirer de la plus-value apportée soit au fonds, soit à la valeur locative de l'immeuble par les améliorations matérielles effectuées par le locataire avec l'accord exprès du propriétaire.
Section 8 : De la déspécialisation.
Article L145-47
Le locataire peut adjoindre à l'activité prévue au bail des activités connexes ou complémentaires.
A cette fin, il doit faire connaître son intention au propriétaire par acte extrajudiciaire, en indiquant les activités dont l'exercice est envisagé. Cette formalité vaut mise en demeure du propriétaire de faire connaître dans un délai de deux mois, à peine de déchéance, s'il conteste le caractère connexe ou complémentaire de ces activités. En cas de contestation, le tribunal de grande instance, saisi par la partie la plus diligente, se prononce en fonction notamment de l'évolution des usages commerciaux.
Lors de la première révision triennale suivant la notification visée à l'alinéa précédent, il peut, par dérogation aux dispositions de l'article L. 145-38, être tenu compte, pour la fixation du loyer, des activités commerciales adjointes, si celles-ci ont entraîné par elles-mêmes une modification de la valeur locative des lieux loués.
Article L145-48
Le locataire peut, sur sa demande, être autorisé à exercer dans les lieux loués une ou plusieurs activités différentes de celles prévues au bail, eu égard à la conjoncture économique et aux nécessités de l'organisation rationnelle de la distribution, lorsque ces activités sont compatibles avec la destination, les caractères et la situation de l'immeuble ou de l'ensemble immobilier.
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Toutefois, le premier locataire d'un local compris dans un ensemble constituant une unité commerciale définie par un programme de construction ne peut se prévaloir de cette faculté pendant un délai de neuf ans à compter de la date de son entrée en jouissance.
Article L145-49
La demande faite au bailleur doit, à peine de nullité, comporter l'indication des activités dont l'exercice est envisagé. Elle est formée par acte extrajudiciaire et dénoncée, en la même forme, aux créanciers inscrits sur le fonds de commerce. Ces derniers peuvent demander que le changement d'activité soit subordonné aux conditions de nature à sauvegarder leurs intérêts.
Le bailleur doit, dans le mois de cette demande, en aviser, dans la même forme, ceux de ses locataires envers lesquels il se serait obligé à ne pas louer en vue de l'exercice d'activités similaires à celles visées dans la demande. Ceux-ci doivent, à peine de forclusion, faire connaître leur attitude dans le mois de cette notification.
A défaut par le bailleur d'avoir, dans les trois mois de la demande, signifié son refus, son acceptation ou encore les conditions auxquelles il subordonne son accord, il est réputé avoir acquiescé à la demande. Cet acquiescement ne fait pas obstacle à l'exercice des droits prévus à l'article L. 145-50.
Article L145-50
Le changement d'activité peut motiver le paiement, à la charge du locataire, d'une indemnité égale au montant du préjudice dont le bailleur établirait l'existence.
Ce dernier peut en outre, en contrepartie de l'avantage procuré, demander au moment de la transformation, la modification du prix du bail sans qu'il y ait lieu d'appliquer les dispositions des articles L. 145-37 à L. 145-39.
Les droits des créanciers inscrits s'exercent avec leur rang antérieur, sur le fonds transformé.
Article L145-51
Lorsque le locataire ayant demandé à bénéficier de ses droits à la retraite ou ayant été admis au bénéfice d'une pension d'invalidité attribuée par le régime d'assurance invalidité-décès des professions artisanales ou des professions industrielles et commerciales, a signifié à son propriétaire et aux créanciers inscrits sur le fonds de commerce son intention de céder son bail en précisant la nature des activités dont l'exercice est envisagé ainsi que le prix proposé, le bailleur a, dans un délai de deux mois, une priorité de rachat aux conditions fixées dans la signification. A défaut d'usage de ce droit par le bailleur, son accord est réputé acquis si, dans le même délai de deux mois, il n'a pas saisi le tribunal de grande instance.
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La nature des activités dont l'exercice est envisagé doit être compatible avec la destination, les caractères et la situation de l'immeuble.
Les dispositions du présent article sont applicables à l'associé unique d'une entreprise unipersonnelle à responsabilité limitée, ou au gérant majoritaire depuis au moins deux ans d'une société à responsabilité limitée, lorsque celle-ci est titulaire du bail.
Article L145-52
Le tribunal de grande instance peut autoriser la transformation totale ou partielle malgré le refus du bailleur, si ce refus n'est point justifié par un motif grave et légitime.
Si le différend porte seulement sur le prix du bail, celui-ci est fixé conformément aux dispositions réglementaires prévues pour la fixation du prix des baux révisés. Dans les autres cas, l'affaire est portée devant le tribunal.
Article L145-53
Le refus de transformation est suffisamment motivé si le bailleur justifie qu'il entend reprendre les lieux à l'expiration de la période triennale en cours, soit en application des articles L. 145-18 à L. 145-24, soit en vue d'exécuter des travaux prescrits ou autorisés dans le cadre d'une opération de rénovation urbaine ou de restauration immobilière.
Le bailleur qui a faussement invoqué l'un des motifs prévus à l'alinéa qui précède ou qui n'a pas satisfait aux conditions ayant motivé le rejet de la demande du locataire ne peut s'opposer à une nouvelle demande de transformation d'activité, sauf pour motifs graves et légitimes, à moins que le défaut d'exécution ne lui soit pas imputable. Il peut, en outre, être condamné à verser au locataire une indemnité à raison du préjudice subi par ce dernier.
Article L145-54
Il n'est pas tenu compte de la plus-value conférée au fonds par la transformation prévue à l'article L. 145-48, lorsque l'immeuble dans lequel est exploité le fonds doit être démoli ou restauré, ou lorsque le fonds doit être exproprié dans le cadre d'une opération de rénovation ou de restauration immobilière décidée moins de trois ans après la demande prévue à l'alinéa 1er dudit article.
Article L145-55
A tout moment et jusqu'à l'expiration d'un délai de quinze jours à compter de la date à laquelle la
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décision est passée en force de chose jugée, le locataire qui a formé une demande conformément aux articles L. 145-47, L. 145-48 ou L. 145-49 peut y renoncer en le notifiant au bailleur par acte extrajudiciaire et, dans ce cas, il supporte tous les frais de l'instance.
Section 9 : De la procédure.
Article L145-56
Les règles de compétence et de procédure des contestations relatives au bail sont fixées par décret en Conseil d'Etat.
Article L145-57
Pendant la durée de l'instance relative à la fixation du prix du bail révisé ou renouvelé, le locataire est tenu de continuer à payer les loyers échus au prix ancien ou, le cas échéant, au prix qui peut, en tout état de cause, être fixé à titre provisionnel par la juridiction saisie, sauf compte à faire entre le bailleur et le preneur, après fixation définitive du prix du loyer.
Dans le délai d'un mois qui suit la signification de la décision définitive, les parties dressent un nouveau bail dans les conditions fixées judiciairement, à moins que le locataire renonce au renouvellement ou que le bailleur refuse celui-ci, à charge de celle des parties qui a manifesté son désaccord de supporter tous les frais. Faute par le bailleur d'avoir envoyé dans ce délai à la signature du preneur le projet de bail conforme à la décision susvisée ou, faute d'accord dans le mois de cet envoi, l'ordonnance ou l'arrêt fixant le prix ou les conditions du nouveau bail vaut bail.
Article L145-58
Le propriétaire peut, jusqu'à l'expiration d'un délai de quinze jours à compter de la date à laquelle la décision est passée en force de chose jugée, se soustraire au paiement de l'indemnité, à charge par lui de supporter les frais de l'instance et de consentir au renouvellement du bail dont les conditions, en cas de désaccord, sont fixées conformément aux dispositions réglementaires prises à cet effet. Ce droit ne peut être exercé qu'autant que le locataire est encore dans les lieux et n'a pas déjà loué ou acheté un autre immeuble destiné à sa réinstallation.
Article L145-59
La décision du propriétaire de refuser le renouvellement du bail, en application du dernier alinéa de l'article L. 145-57, ou de se soustraire au paiement de l'indemnité, dans les conditions prévues au dernier alinéa de l'article L. 145-58, est irrévocable.
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Article L145-60
Toutes les actions exercées en vertu du présent chapitre se prescrivent par deux ans.
Chapitre VI : Des gérants-mandataires.
Article L146-1
Les personnes physiques ou morales qui gèrent un fonds de commerce ou un fonds artisanal, moyennant le versement d'une commission proportionnelle au chiffre d'affaires, sont qualifiées de "gérants-mandataires" lorsque le contrat conclu avec le mandant, pour le compte duquel, le cas échéant dans le cadre d'un réseau, elles gèrent ce fonds, qui en reste propriétaire et supporte les risques liés à son exploitation, leur fixe une mission, en leur laissant toute latitude, dans le cadre ainsi tracé, de déterminer leurs conditions de travail, d'embaucher du personnel et de se substituer des remplaçants dans leur activité à leurs frais et sous leur entière responsabilité.
Le gérant-mandataire est immatriculé au registre du commerce et des sociétés et, le cas échéant, au répertoire des métiers. Le contrat est mentionné à ce registre ou à ce répertoire et fait l'objet d'une publication dans un journal habilité à recevoir des annonces légales.
Les dispositions du présent chapitre ne sont pas applicables aux professions régies par le chapitre II du titre VIII du livre VII du code du travail.
Article L146-2
Le mandant fournit au gérant-mandataire, avant la signature du contrat, toutes informations nécessaires à sa mission, telles que définies par décret, afin de lui permettre de s'engager en connaissance de cause.
Article L146-3
Un accord-cadre conclu entre le mandant et les gérants-mandataires auxquels il est lié par un contrat, ou leurs représentants, fixe notamment le montant de la commission minimale garantie dans tous les contrats de gérance-mandat conclus par ledit mandant. Cette commission minimale tient compte de l'importance de l'établissement et des modalités de son exploitation.
A défaut d'accord, le ministre chargé des petites et moyennes entreprises fixe cette commission
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minimale.
Article L146-4
Le contrat liant le mandant et le gérant-mandataire peut prendre fin à tout moment dans les conditions fixées par les parties. Toutefois, en cas de résiliation du contrat par le mandant, sauf faute grave de la part du gérant-mandataire, le mandant lui verse une indemnité égale, sauf conditions plus favorables fixées par les parties, au montant des commissions acquises, ou à la commission minimale garantie mentionnée à l'article L. 146-3, pendant les six mois précédant la résiliation du contrat, ou pendant la durée d'exécution du contrat si celle-ci a été inférieure à six mois.
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Partie législative
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique
TITRE Ier : Dispositions préliminaires.
Article L210-1
Le caractère commercial d'une société est déterminé par sa forme ou par son objet.
Sont commerciales à raison de leur forme et quel que soit leur objet, les sociétés en nom collectif, les sociétés en commandite simple, les sociétés à responsabilité limitée et les sociétés par actions.
Article L210-2
La forme, la durée qui ne peut excéder quatre-vingt-dix-neuf ans, la dénomination sociale, le siège social, l'objet social et le montant du capital social sont déterminés par les statuts de la société.
Article L210-3
Les sociétés dont le siège social est situé en territoire français sont soumises à la loi française.
Les tiers peuvent se prévaloir du siège statutaire, mais celui-ci ne leur est pas opposable par la société si son siège réel est situé en un autre lieu.
Article L210-4
Les formalités de publicité exigées lors de la constitution de la société ou en cas d'actes et délibérations postérieurs sont déterminées par décret en Conseil d'Etat.
Article L210-5
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En ce qui concerne les opérations des sociétés à responsabilité limitée et des sociétés par actions intervenues avant le seizième jour de la publication au Bulletin officiel des annonces civiles et commerciales des actes et indications soumis à cette publicité, ceux-ci ne sont pas opposables aux tiers qui prouvent qu'ils ont été dans l'impossibilité d'en avoir connaissance.
Le délai prévu au premier alinéa court à compter de la date de l'inscription des actes et indications au registre du commerce et des sociétés pour les sociétés à responsabilité limitée et les sociétés par actions simplifiées dont l'associé unique, personne physique, assume personnellement la gérance ou la présidence de la société. (1)
Si, dans la publicité des actes et indications concernant les sociétés à responsabilité limitée et les sociétés par actions, il y a discordance entre le texte déposé au registre du commerce et des sociétés et le texte publié au Bulletin officiel des annonces civiles et commerciales, ce dernier ne peut être opposé aux tiers ; ceux-ci peuvent toutefois s'en prévaloir, à moins que la société ne prouve qu'ils ont eu connaissance du texte déposé au registre du commerce et des sociétés.
Article L210-6
Les sociétés commerciales jouissent de la personnalité morale à dater de leur immatriculation au registre du commerce et des sociétés. La transformation régulière d'une société n'entraîne pas la création d'une personne morale nouvelle. Il en est de même de la prorogation.
Les personnes qui ont agi au nom d'une société en formation avant qu'elle ait acquis la jouissance de la personnalité morale sont tenues solidairement et indéfiniment responsables des actes ainsi accomplis, à moins que la société, après avoir été régulièrement constituée et immatriculée, ne reprenne les engagements souscrits. Ces engagements sont alors réputés avoir été souscrits dès l'origine par la société.
Article L210-7
Il est procédé à l'immatriculation de la société après vérification par le greffier du tribunal compétent de la régularité de sa constitution dans les conditions prévues par les dispositions législatives et réglementaires relatives au registre du commerce et des sociétés.
Si les statuts ne contiennent pas toutes les énonciations exigées par la loi et les règlements ou si une formalité prescrite par ceux-ci pour la constitution de la société a été omise ou irrégulièrement accomplie, tout intéressé est recevable à demander en justice que soit ordonnée, sous astreinte, la régularisation de la constitution. Le ministère public est habile à agir aux mêmes fins.
Les dispositions des alinéas qui précèdent sont applicables en cas de modification des statuts.
L'action prévue au deuxième alinéa se prescrit par trois ans à compter, soit de l'immatriculation de la société au registre du commerce et des sociétés, soit de l'inscription modificative audit registre et du dépôt, en annexe dudit registre, des actes modifiant les statuts.
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Article L210-8
Les fondateurs de la société, ainsi que les premiers membres des organes de gestion, d'administration, de direction et de surveillance sont solidairement responsables du préjudice causé par le défaut d'une mention obligatoire dans les statuts ainsi que par l'omission ou l'accomplissement irrégulier d'une formalité prescrite par la loi et les règlements pour la constitution de la société.
Les dispositions de l'alinéa précédent sont applicables en cas de modification des statuts, aux membres des organes de gestion, d'administration, de direction, de surveillance et de contrôle, en fonction lors de ladite modification.
L'action se prescrit par dix ans à compter de l'accomplissement de l'une ou l'autre, selon le cas, des formalités visées au quatrième alinéa de l'article L. 210-7.
Article L210-9
Ni la société ni les tiers ne peuvent, pour se soustraire à leurs engagements, se prévaloir d'une irrégularité dans la nomination des personnes chargées de gérer, d'administrer ou de diriger la société, lorsque cette nomination a été régulièrement publiée.
La société ne peut se prévaloir, à l'égard des tiers, des nominations et cessations de fonction des personnes visées ci-dessus, tant qu'elles n'ont pas été régulièrement publiées.
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Partie législative
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique
TITRE II : Dispositions particulières aux diverses sociétés commerciales.
Chapitre Ier : Des sociétés en nom collectif.
Article L221-1
Les associés en nom collectif ont tous la qualité de commerçant et répondent indéfiniment et solidairement des dettes sociales.
Les créanciers de la société ne peuvent poursuivre le paiement des dettes sociales contre un associé, qu'après avoir vainement mis en demeure la société par acte extrajudiciaire.
Article L221-2
La société en nom collectif est désignée par une dénomination sociale, à laquelle peut être incorporé le nom d'un ou plusieurs associés et qui doit être précédée ou suivie immédiatement des mots " société en nom collectif ".
Article L221-3
Tous les associés sont gérants, sauf stipulation contraire des statuts qui peuvent désigner un ou plusieurs gérants, associés ou non, ou en prévoir la désignation par un acte ultérieur.
Si une personne morale est gérant, ses dirigeants sont soumis aux mêmes conditions et obligations et encourent les mêmes responsabilités civile et pénale que s'ils étaient gérants en leur nom propre, sans préjudice de la responsabilité solidaire de la personne morale qu'ils dirigent.
Article L221-4
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Dans les rapports entre associés, et en l'absence de la détermination de ses pouvoirs par les statuts, le gérant peut faire tous actes de gestion dans l'intérêt de la société.
En cas de pluralité de gérants, ceux-ci détiennent séparément les pouvoirs prévus à l'alinéa précédent, sauf le droit pour chacun de s'opposer à toute opération avant qu'elle soit conclue.
Article L221-5
Dans les rapports avec les tiers, le gérant engage la société par les actes entrant dans l'objet social.
En cas de pluralité de gérants, ceux-ci détiennent séparément les pouvoirs prévus à l'alinéa précédent. L'opposition formée par un gérant aux actes d'un autre gérant est sans effet à l'égard des tiers, à moins qu'il ne soit établi qu'ils en ont eu connaissance.
Les clauses statutaires limitant les pouvoirs des gérants qui résultent du présent article sont inopposables aux tiers.
Article L221-6
Les décisions qui excèdent les pouvoirs reconnus aux gérants sont prises à l'unanimité des associés. Toutefois les statuts peuvent prévoir que certaines décisions sont prises à une majorité qu'ils fixent.
Les statuts peuvent également prévoir que les décisions sont prises par voie de consultation écrite, si la réunion d'une assemblée n'est pas demandée par l'un des associés.
Article L221-7
Le rapport de gestion, l'inventaire et les comptes annuels établis par les gérants sont soumis à l'approbation de l'assemblée des associés, dans le délai de six mois à compter de la clôture dudit exercice.
A cette fin, les documents visés à l'alinéa précédent, le texte des résolutions proposées ainsi que, le cas échéant, le rapport des commissaires aux comptes, les comptes consolidés et le rapport sur la gestion du groupe sont communiqués aux associés dans les conditions et délais déterminés par décret en Conseil d'Etat. Toute délibération, prise en violation des dispositions du présent alinéa et du décret pris pour son application, peut être annulée.
Toute clause contraire aux dispositions du présent article et du décret pris pour son application est réputée non écrite.
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Les troisième à sixième alinéas de l'article L. 225-100 et l'article L. 225-100-1 s'appliquent au rapport de gestion lorsque l'ensemble des parts sont détenues par des personnes ayant l'une des formes suivantes : société anonyme, société en commandite par actions ou société à responsabilité limitée.
Article L221-8
Les associés non gérants ont le droit, deux fois par an, d'obtenir communication des livres et documents sociaux et de poser par écrit des questions sur la gestion sociale, auxquelles il doit être répondu également par écrit.
Article L221-9
Les associés peuvent nommer un ou plusieurs commissaires aux comptes dans les formes prévues à l'article L. 221-6.
Sont tenues de désigner un commissaire aux comptes au moins les sociétés qui dépassent, à la clôture de l'exercice social, des chiffres fixés par décret en Conseil d'Etat pour deux des critères suivants : le total de leur bilan, le montant hors taxes de leur chiffre d'affaires ou le nombre moyen de leurs salariés au cours d'un exercice.
Même si ces seuils ne sont pas atteints, la nomination d'un commissaire aux comptes peut être demandée en justice par un associé.
Article L221-11
Les documents visés au premier alinéa de l'article L. 221-7 sont mis à la disposition du commissaire aux comptes dans les conditions et délais fixés par décret en Conseil d'Etat.
Article L221-12
Si tous les associés sont gérants ou si un ou plusieurs gérants choisis parmi les associés sont désignés dans les statuts, la révocation de l'un d'eux de ses fonctions ne peut être décidée qu'à l'unanimité des autres associés. Elle entraîne la dissolution de la société, à moins que sa continuation ne soit prévue par les statuts ou que les autres associés ne la décident à l'unanimité. Le gérant révoqué peut alors décider de se retirer de la société en demandant le remboursement de ses droits sociaux, dont la valeur est déterminée conformément à l'article 1843-4 du code civil. Toute clause contraire à l'article 1843-4 dudit code est réputée non écrite.
Si un ou plusieurs associés sont gérants et ne sont pas désignés par les statuts, chacun d'eux peut
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être révoqué de ses fonctions, dans les conditions prévues par les statuts ou, à défaut, par une décision des autres associés, gérants ou non, prise à l'unanimité.
Le gérant non associé peut être révoqué dans les conditions prévues par les statuts ou, à défaut, par une décision des associés prise à la majorité.
Si la révocation est décidée sans juste motif, elle peut donner lieu à dommages-intérêts.
Article L221-13
Les parts sociales ne peuvent être représentées par des titres négociables. Elles ne peuvent être cédées qu'avec le consentement de tous les associés.
Toute clause contraire est réputée non écrite.
Article L221-14
La cession des parts sociales doit être constatée par écrit. Elle est rendue opposable à la société, dans les formes prévues à l'article 1690 du code civil. Toutefois, la signification peut être remplacée par le dépôt d'un original de l'acte de cession au siège social contre remise par le gérant d'une attestation de ce dépôt.
Elle n'est opposable aux tiers qu'après accomplissement de ces formalités et, en outre, après publicité au registre du commerce et des sociétés.
Article L221-15
La société prend fin par le décès de l'un des associés, sous réserve des dispositions du présent article.
S'il a été stipulé qu'en cas de mort de l'un des associés, la société continuerait avec son héritier ou seulement avec les associés survivants, ces dispositions sont suivies, sauf à prévoir que pour devenir associé, l'héritier devra être agréé par la société.
Il en est de même s'il a été stipulé que la société continuerait, soit avec le conjoint survivant, soit avec un ou plusieurs des héritiers, soit avec toute autre personne désignée par les statuts ou, si ceux-ci l'autorisent, par dispositions testamentaires.
Lorsque la société continue avec les associés survivants, l'héritier est seulement créancier de la société et n'a droit qu'à la valeur des droits sociaux de son auteur. L'héritier a pareillement droit à cette valeur s'il a été stipulé que, pour devenir associé il devrait être agréé par la société et si cet
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agrément lui a été refusé.
Lorsque la société continue dans les conditions prévues au troisième alinéa ci-dessus, les bénéficiaires de la stipulation sont redevables à la succession de la valeur des droits sociaux qui leur sont attribués.
Dans tous les cas prévus au présent article, la valeur des droits sociaux est déterminée au jour du décès conformément à l'article 1843-4 du code civil.
En cas de continuation et si l'un ou plusieurs des héritiers de l'associé sont mineurs non émancipés, ceux-ci ne répondent des dettes sociales qu'à concurrence des forces de la succession de leur auteur. En outre, la société doit être transformée, dans le délai d'un an, à compter du décès, en société en commandite dont le mineur devient commanditaire. A défaut, elle est dissoute.
Article L221-16
Lorsqu'un jugement de liquidation judiciaire ou arrêtant un plan de cession totale, une mesure d'interdiction d'exercer une profession commerciale ou une mesure d'incapacité est devenu définitif à l'égard de l'un des associés, la société est dissoute, à moins que sa continuation ne soit prévue par les statuts ou que les autres associés ne la décident à l'unanimité.
Dans le cas de continuation, la valeur des droits sociaux à rembourser à l'associé qui perd cette qualité est déterminée conformément aux dispositions de l'article 1843-4 du code civil. Toute clause contraire à l'article 1843-4 dudit code est réputée non écrite.
Article L221-17
Les sociétés en nom collectif qui, à la date du 1er avril 1967, utilisaient dans leur raison sociale le nom d'un ou plusieurs associés fondateurs décédés peuvent, par dérogation aux dispositions des articles L. 221-2 et L. 222-3, être autorisées à conserver ce nom dans leur dénomination sociale.
Un décret en Conseil d'Etat détermine les conditions auxquelles est subordonnée cette autorisation.
Ce décret fixe en outre les conditions dans lesquelles une opposition peut être formée par les tiers devant les juridictions de l'ordre judiciaire.
Chapitre II : Des sociétés en commandite simple.
Article L222-1
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Les associés commandités ont le statut des associés en nom collectif.
Les associés commanditaires répondent des dettes sociales seulement à concurrence du montant de leur apport. Celui-ci ne peut être un apport en industrie.
Article L222-2
Les dispositions relatives aux sociétés en nom collectif sont applicables aux sociétés en commandite simple, sous réserve des règles prévues au présent chapitre.
Article L222-3
La société en commandite simple est désignée par une dénomination sociale à laquelle peut être incorporé le nom d'un ou plusieurs associés et qui doit être précédée ou suivie immédiatement des mots : " société en commandite simple ".
Article L222-4
Les statuts de la société doivent contenir les indications suivantes :
1° Le montant ou la valeur des apports de tous les associés ;
2° La part dans ce montant ou cette valeur de chaque associé commandité ou commanditaire ;
3° La part globale des associés commandités et la part de chaque associé commanditaire dans la répartition des bénéfices et dans le boni de liquidation.
Article L222-5
Les décisions sont prises dans les conditions fixées par les statuts. Toutefois, la réunion d'une assemblée de tous les associés est de droit, si elle est demandée soit par un commandité, soit par le quart en nombre et en capital des commanditaires.
Article L222-6
L'associé commanditaire ne peut faire aucun acte de gestion externe, même en vertu d'une
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procuration.
En cas de contravention à la prohibition prévue par l'alinéa précédent, l'associé commanditaire est tenu solidairement avec les associés commandités, des dettes et engagements de la société qui résultent des actes prohibés. Suivant le nombre ou l'importance de ceux-ci, il peut être déclaré solidairement obligé pour tous les engagements de la société ou pour quelques-uns seulement.
Article L222-7
Les associés commanditaires ont le droit, deux fois par an, d'obtenir communication des livres et documents sociaux et de poser par écrit des questions sur la gestion sociale, auxquelles il doit être répondu également par écrit.
Article L222-8
I. - Les parts sociales ne peuvent être cédées qu'avec le consentement de tous les associés.
II. - Toutefois, les statuts peuvent stipuler :
1° Que les parts des associés commanditaires sont librement cessibles entre associés ;
2° Que les parts des associés commanditaires peuvent être cédées à des tiers étrangers à la société avec le consentement de tous les commandités et de la majorité en nombre et en capital des commanditaires ;
3° Qu'un associé commandité peut céder une partie de ses parts à un commanditaire ou à un tiers étranger à la société dans les conditions prévues au 2° ci-dessus.
Article L222-9
Les associés ne peuvent, si ce n'est à l'unanimité, changer la nationalité de la société.
Toutes autres modifications des statuts peuvent être décidées avec le consentement de tous les commandités et de la majorité en nombre et en capital des commanditaires.
Les clauses édictant des conditions plus strictes de majorité sont réputées non écrites.
Article L222-10
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La société continue malgré le décès d'un commanditaire.
S'il est stipulé que malgré le décès de l'un des commandités, la société continue avec ses héritiers, ceux-ci deviennent commanditaires lorsqu'ils sont mineurs non émancipés. Si l'associé décédé était le seul commandité et si ses héritiers sont tous mineurs non émancipés, il doit être procédé à son remplacement par un nouvel associé commandité ou à la transformation de la société, dans le délai d'un an à compter du décès. A défaut, la société est dissoute de plein droit à l'expiration de ce délai.
Article L222-11
En cas de redressement ou de liquidation judiciaires d'un des associés commandités, d'interdiction d'exercer une profession commerciale ou d'incapacité frappant l'un des associés commandités, la société est dissoute, à moins que, s'il existe un ou plusieurs autres associés commandités, la continuation de la société ne soit prévue par les statuts ou que les associés ne la décident à l'unanimité. Dans ce cas, les dispositions du deuxième alinéa de l'article L. 221-16 sont applicables.
Article L222-12
Les dispositions de l'article L. 221-17 sont applicables aux sociétés en commandite simple.
Chapitre III : Des sociétés à responsabilité limitée.
Article L223-1
La société à responsabilité limitée est instituée par une ou plusieurs personnes qui ne supportent les pertes qu'à concurrence de leurs apports.
Lorsque la société ne comporte qu'une seule personne, celle-ci est dénommée "associé unique". L'associé unique exerce les pouvoirs dévolus à l'assemblée des associés par les dispositions du présent chapitre. Un décret fixe un modèle de statuts types de société à responsabilité limitée dont l'associé unique, personne physique, assume personnellement la gérance et les conditions dans lesquelles ces statuts sont portés à la connaissance de l'intéressé. Ces statuts types s'appliquent à moins que l'intéressé ne produise des statuts différents lors de sa demande d'immatriculation de la société.
La société à responsabilité limitée dont l'associé unique, personne physique, assume personnellement la gérance est soumise à des formalités de publicité allégées déterminées par décret en Conseil d'Etat. Ce décret prévoit les conditions de dispense d'insertion au Bulletin officiel des annonces civiles et commerciales. (1)
La société est désignée par une dénomination sociale, à laquelle peut être incorporé le nom d'un ou
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plusieurs associés, et qui doit être précédée ou suivie immédiatement des mots "société à responsabilité limitée" ou des initiales "SARL" et de l'énonciation du capital social.
Les sociétés d'assurance, de capitalisation et d'épargne ne peuvent adopter la forme de société à responsabilité limitée.
Article L223-2
Le montant du capital de la société est fixé par les statuts. Il est divisé en parts sociales égales.
Article L223-3
Le nombre des associés d'une société à responsabilité limitée ne peut être supérieur à cent. Si la société vient à comprendre plus de cent associés, elle est dissoute au terme d'un délai d'un an à moins que, pendant ce délai, le nombre des associés soit devenu égal ou inférieur à cent ou que la société ait fait l'objet d'une transformation.
Article L223-4
En cas de réunion en une seule main de toutes les parts d'une société à responsabilité limitée, les dispositions de l'article 1844-5 du code civil relatives à la dissolution judiciaire ne sont pas applicables.
Article L223-5
Une société à responsabilité limitée ne peut avoir pour associé unique une autre société à responsabilité limitée composée d'une seule personne.
En cas de violation des dispositions de l'alinéa précédent, tout intéressé peut demander la dissolution des sociétés irrégulièrement constituées. Lorsque l'irrégularité résulte de la réunion en une seule main de toutes les parts d'une société ayant plus d'un associé, la demande de dissolution ne peut être faite moins d'un an après la réunion des parts. Dans tous les cas, le tribunal peut accorder un délai maximal de six mois pour régulariser la situation et ne peut prononcer la dissolution si, au jour où il statue sur le fond, la régularisation a eu lieu.
Article L223-6
Tous les associés doivent intervenir à l'acte constitutif de la société, en personne ou par mandataire justifiant d'un pouvoir spécial.
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Article L223-7
Les parts sociales doivent être souscrites en totalité par les associés. Elles doivent être intégralement libérées lorsqu'elles représentent des apports en nature. Les parts représentant des apports en numéraire doivent être libérées d'au moins un cinquième de leur montant. La libération du surplus intervient en une ou plusieurs fois sur décision du gérant, dans un délai qui ne peut excéder cinq ans à compter de l'immatriculation de la société au registre du commerce et des sociétés. Toutefois, le capital social doit être intégralement libéré avant toute souscription de nouvelles parts sociales à libérer en numéraire, à peine de nullité de l'opération.
Le cas échéant, les statuts déterminent les modalités selon lesquelles peuvent être souscrites des parts sociales en industrie.
La répartition des parts sociales est mentionnée dans les statuts.
Les fonds provenant de la libération des parts sociales sont déposés dans les conditions et délais déterminés par décret en Conseil d'Etat.
Article L223-8
Le retrait des fonds provenant de la libération des parts sociales ne peut être effectué par le mandataire de la société, avant l'immatriculation de celle-ci au registre du commerce et des sociétés.
Si la société n'est pas constituée dans le délai de six mois à compter du premier dépôt de fonds, ou si elle n'est pas immatriculée au registre du commerce et des sociétés dans le même délai, les apporteurs peuvent individuellement demander en justice l'autorisation de retirer le montant de leurs apports. Dans les mêmes cas, un mandataire, dès lors qu'il représente tous les apporteurs, peut demander directement au dépositaire le retrait des fonds.
Si les apporteurs décident ultérieurement de constituer la société, il doit être procédé à nouveau au dépôt des fonds.
Article L223-9
Les statuts doivent contenir l'évaluation de chaque apport en nature. Il y est procédé au vu d'un rapport annexé aux statuts et établi sous sa responsabilité par un commissaire aux apports désigné à l'unanimité des futurs associés ou à défaut par une décision de justice à la demande du futur associé le plus diligent.
Toutefois, les futurs associés peuvent décider à l'unanimité que le recours à un commissaire aux apports ne sera pas obligatoire, lorsque la valeur d'aucun apport en nature n'excède 7 500 euros et si
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la valeur totale de l'ensemble des apports en nature non soumis à l'évaluation d'un commissaire aux apports n'excède pas la moitié du capital.
Lorsque la société est constituée par une seule personne, le commissaire aux apports est désigné par l'associé unique. Toutefois le recours à un commissaire aux apports n'est pas obligatoire si les conditions prévues à l'alinéa précédent sont réunies.
Lorsqu'il n'y a pas eu de commissaire aux apports ou lorsque la valeur retenue est différente de celle proposée par le commissaire aux apports, les associés sont solidairement responsables pendant cinq ans, à l'égard des tiers, de la valeur attribuée aux apports en nature lors de la constitution de la société.
Article L223-10
Les premiers gérants et les associés auxquels la nullité de la société est imputable sont solidairement responsables, envers les autres associés et les tiers, du dommage résultant de l'annulation. L'action se prescrit par le délai prévu au premier alinéa de l'article L. 235-13.
Article L223-11
Une société à responsabilité limitée, tenue en vertu de l'article L. 223-35 de désigner un commissaire aux comptes et dont les comptes des trois derniers exercices de douze mois ont été régulièrement approuvés par les associés, peut émettre des obligations nominatives à condition qu'elle ne procède pas à une offre au public de ces obligations.
L'émission d'obligations est décidée par l'assemblée des associés conformément aux dispositions applicables aux assemblées générales d'actionnaires. Ces titres sont soumis aux dispositions applicables aux obligations émises par les sociétés par actions, à l'exclusion de celles prévues par les articles L. 228-39 à L. 228-43 et L. 228-51.
Lors de chaque émission d'obligations par une société remplissant les conditions de l'alinéa 1er, la société doit mettre à la disposition des souscripteurs une notice relative aux conditions de l'émission et un document d'information selon les modalités fixées par décret en Conseil d'Etat.
A peine de nullité de la garantie, il est interdit à une société à responsabilité limitée de garantir une émission de valeurs mobilières, sauf si l'émission est faite par une société de développement régional ou s'il s'agit d'une émission d'obligations bénéficiant de la garantie subsidiaire de l'Etat.
Article L223-12
Les parts sociales ne peuvent être représentées par des titres négociables.
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Article L223-13
Les parts sociales sont librement transmissibles par voie de succession ou en cas de liquidation de communauté de biens entre époux et librement cessibles entre conjoints et entre ascendants et descendants.
Toutefois, les statuts peuvent stipuler que le conjoint, un héritier, un ascendant ou un descendant ne peut devenir associé qu'après avoir été agréé dans les conditions prévues à l'article L. 223-14. A peine de nullité de la clause, les délais accordés à la société pour statuer sur l'agrément ne peuvent être plus longs que ceux prévus à l'article L. 223-14, et la majorité exigée ne peut être plus forte que celle prévue audit article. En cas de refus d'agrément, il est fait application des dispositions des troisième et quatrième alinéas de l'article L. 223-14. Si aucune des solutions prévues à ces alinéas n'intervient dans les délais impartis, l'agrément est réputé acquis.
Les statuts peuvent stipuler qu'en cas de décès de l'un des associés la société continuera avec son héritier ou seulement avec les associés survivants. Lorsque la société continue avec les seuls associés survivants, ou lorsque l'agrément a été refusé à l'héritier, celui-ci a droit à la valeur des droits sociaux de son auteur.
Il peut aussi être stipulé que la société continuera, soit avec le conjoint survivant, soit avec un ou plusieurs des héritiers, soit avec toute autre personne désignée par les statuts ou, si ceux-ci l'autorisent, par dispositions testamentaires.
Dans les cas prévus au présent article, la valeur des droits sociaux est déterminée au jour du décès conformément à l'article 1843-4 du code civil.
Article L223-14
Les parts sociales ne peuvent être cédées à des tiers étrangers à la société qu'avec le consentement de la majorité des associés représentant au moins la moitié des parts sociales, à moins que les statuts prévoient une majorité plus forte.
Lorsque la société comporte plus d'un associé, le projet de cession est notifié à la société et à chacun des associés. Si la société n'a pas fait connaître sa décision dans le délai de trois mois à compter de la dernière des notifications prévues au présent alinéa, le consentement à la cession est réputé acquis.
Si la société a refusé de consentir à la cession, les associés sont tenus, dans le délai de trois mois à compter de ce refus, d'acquérir ou de faire acquérir les parts à un prix fixé dans les conditions prévues à l'article 1843-4 du code civil, sauf si le cédant renonce à la cession de ses parts. Les frais d'expertise sont à la charge de la société. A la demande du gérant, ce délai peut être prolongé par décision de justice, sans que cette prolongation puisse excéder six mois.
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La société peut également, avec le consentement de l'associé cédant, décider, dans le même délai, de réduire son capital du montant de la valeur nominale des parts de cet associé et de racheter ces parts au prix déterminé dans les conditions prévues ci-dessus. Un délai de paiement qui ne saurait excéder deux ans peut, sur justification, être accordé à la société par décision de justice. Les sommes dues portent intérêt au taux légal en matière commerciale.
Si, à l'expiration du délai imparti, aucune des solutions prévues aux troisième et quatrième alinéas ci-dessus n'est intervenue, l'associé peut réaliser la cession initialement prévue.
Sauf en cas de succession, de liquidation de communauté de biens entre époux, ou de donation au profit d'un conjoint, ascendant ou descendant, l'associé cédant ne peut se prévaloir des dispositions des troisième et cinquième alinéas ci-dessus s'il ne détient ses parts depuis au moins deux ans.
Toute clause contraire aux dispositions du présent article est réputée non écrite.
Article L223-15
Si la société a donné son consentement à un projet de nantissement de parts sociales dans les conditions prévues aux premier et deuxième alinéas de l'article L. 223-14, ce consentement emportera agrément du cessionnaire en cas de réalisation forcée des parts sociales nanties selon les dispositions du premier alinéa de l'article 2078 du code civil, à moins que la société ne préfère, après la cession, racheter sans délai les parts, en vue de réduire son capital.
Article L223-16
Les parts sont librement cessibles entre les associés.
Si les statuts contiennent une clause limitant la cessibilité, les dispositions de l'article L. 223-14 sont applicables. Toutefois, les statuts peuvent, dans ce cas, réduire la majorité ou abréger les délais prévus audit article.
Article L223-17
La cession des parts sociales est soumise aux dispositions de l'article L. 221-14.
Article L223-18
La société à responsabilité limitée est gérée par une ou plusieurs personnes physiques.
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Les gérants peuvent être choisis en dehors des associés. Ils sont nommés par les associés, dans les statuts ou par un acte postérieur, dans les conditions prévues à l'article L. 223-29. Dans les mêmes conditions, la mention du nom d'un gérant dans les statuts peut, en cas de cessation des fonctions de ce gérant pour quelque cause que ce soit, être supprimée par décision des associés.
En l'absence de dispositions statutaires, ils sont nommés pour la durée de la société.
Dans les rapports entre associés, les pouvoirs des gérants sont déterminés par les statuts, et dans le silence de ceux-ci, par l'article L. 221-4.
Dans les rapports avec les tiers, le gérant est investi des pouvoirs les plus étendus pour agir en toute circonstance au nom de la société, sous réserve des pouvoirs que la loi attribue expressément aux associés. La société est engagée même par les actes du gérant qui ne relèvent pas de l'objet social, à moins qu'elle ne prouve que le tiers savait que l'acte dépassait cet objet ou qu'il ne pouvait l'ignorer compte tenu des circonstances, étant exclu que la seule publication des statuts suffise à constituer cette preuve.
Les clauses statutaires limitant les pouvoirs des gérants qui résultent du présent article sont inopposables aux tiers.
En cas de pluralité de gérants, ceux-ci détiennent séparément les pouvoirs prévus au présent article. L'opposition formée par un gérant aux actes d'un autre gérant est sans effet à l'égard des tiers, à moins qu'il ne soit établi qu'ils en ont eu connaissance.
Le déplacement du siège social dans le même département ou dans un département limitrophe peut être décidé par le ou les gérants, sous réserve de ratification de cette décision par les associés dans les conditions prévues au deuxième alinéa de l'article L. 223-30.
Dans les mêmes conditions, le gérant peut mettre les statuts en harmonie avec les dispositions impératives de la loi et des règlements.
Lorsque des parts sociales ont fait l'objet d'un contrat de bail en application de l'article L. 239-1, le gérant peut inscrire dans les statuts la mention du bail et du nom du locataire à côté du nom de l'associé concerné, sous réserve de la ratification de cette décision par les associés dans les conditions prévues à l'article L. 223-29. Il peut, dans les mêmes conditions, supprimer cette mention en cas de non-renouvellement ou de résiliation du bail.
Article L223-19
Le gérant ou, s'il en existe un, le commissaire aux comptes, présente à l'assemblée ou joint aux documents communiqués aux associés en cas de consultation écrite, un rapport sur les conventions intervenues directement ou par personnes interposées entre la société et l'un de ses gérants ou associés. L'assemblée statue sur ce rapport. Le gérant ou l'associé intéressé ne peut prendre part au vote et ses parts ne sont pas prises en compte pour le calcul du quorum et de la majorité.
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Toutefois, s'il n'existe pas de commissaire aux comptes, les conventions conclues par un gérant non associé sont soumises à l'approbation préalable de l'assemblée.
Par dérogation aux dispositions du premier alinéa, lorsque la société ne comprend qu'un seul associé et que la convention est conclue avec celui-ci, il en est seulement fait mention au registre des décisions.
Les conventions non approuvées produisent néanmoins leurs effets, à charge pour le gérant, et, s'il y a lieu, pour l'associé contractant, de supporter individuellement ou solidairement, selon les cas, les conséquences du contrat préjudiciables à la société.
Les dispositions du présent article s'étendent aux conventions passées avec une société dont un associé indéfiniment responsable, gérant, administrateur, directeur général, membre du directoire ou membre du conseil de surveillance, est simultanément gérant ou associé de la société à responsabilité limitée.
Article L223-20
Les dispositions de l'article L. 223-19 ne sont pas applicables aux conventions portant sur des opérations courantes et conclues à des conditions normales.
Article L223-21
A peine de nullité du contrat, il est interdit aux gérants ou associés autres que les personnes morales de contracter, sous quelque forme que ce soit, des emprunts auprès de la société, de se faire consentir par elle un découvert, en compte courant ou autrement, ainsi que de faire cautionner ou avaliser par elle leurs engagements envers les tiers. Cette interdiction s'applique aux représentants légaux des personnes morales associées.
L'interdiction s'applique également aux conjoint, ascendants et descendants des personnes visées à l'alinéa précédent ainsi qu'à toute personne interposée.
Toutefois, si la société exploite un établissement financier, cette interdiction ne s'applique pas aux opérations courantes de ce commerce conclues à des conditions normales.
Article L223-22
Les gérants sont responsables, individuellement ou solidairement, selon le cas, envers la société ou envers les tiers, soit des infractions aux dispositions législatives ou réglementaires applicables aux sociétés à responsabilité limitée, soit des violations des statuts, soit des fautes commises dans leur
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gestion.
Si plusieurs gérants ont coopéré aux mêmes faits, le tribunal détermine la part contributive de chacun dans la réparation du dommage.
Outre l'action en réparation du préjudice subi personnellement, les associés peuvent, soit individuellement, soit en se groupant dans les conditions fixées par décret en Conseil d'Etat, intenter l'action sociale en responsabilité contre les gérants. Les demandeurs sont habilités à poursuivre la réparation de l'entier préjudice subi par la société à laquelle, le cas échéant, les dommages-intérêts sont alloués.
Est réputée non écrite toute clause des statuts ayant pour effet de subordonner l'exercice de l'action sociale à l'avis préalable ou à l'autorisation de l'assemblée, ou qui comporterait par avance renonciation à l'exercice de cette action.
Aucune décision de l'assemblée ne peut avoir pour effet d'éteindre une action en responsabilité contre les gérants pour faute commise dans l'accomplissement de leur mandat.
Article L223-23
Les actions en responsabilité prévues aux articles L. 223-19 et L. 223-22 se prescrivent par trois ans à compter du fait dommageable ou, s'il a été dissimulé, de sa révélation. Toutefois, lorsque le fait est qualifié crime, l'action se prescrit par dix ans.
Article L223-24
En cas d'ouverture d'une procédure de redressement ou de liquidation judiciaire en application des dispositions du livre VI, titre II, les personnes visées par ces dispositions peuvent être rendues responsables du passif social et sont soumises aux interdictions et déchéances, dans les conditions prévues par lesdites dispositions.
Article L223-25
Le gérant peut être révoqué par décision des associés dans les conditions de l'article L. 223-29, à moins que les statuts prévoient une majorité plus forte. Si la révocation est décidée sans juste motif, elle peut donner lieu à des dommages et intérêts.
En outre, le gérant est révocable par les tribunaux pour cause légitime, à la demande de tout associé.
Par dérogation au premier alinéa, le gérant d'une société à responsabilité limitée exploitant une
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entreprise de presse au sens de l'article 2 de la loi n° 86-897 du 1er août 1986 portant réforme du régime juridique de la presse n'est révocable que par une décision des associés représentant au moins les trois quarts du capital social.
Article L223-26
Le rapport de gestion, l'inventaire et les comptes annuels établis par les gérants, sont soumis à l'approbation des associés réunis en assemblée, dans le délai de six mois à compter de la clôture de l'exercice.
A cette fin, les documents visés à l'alinéa précédent, le texte des résolutions proposées ainsi que le cas échéant, le rapport des commissaires aux comptes, les comptes consolidés et le rapport sur la gestion du groupe sont communiqués aux associés dans les conditions et délais déterminés par décret en Conseil d'Etat. Toute délibération, prise en violation des dispositions du présent alinéa et du décret pris pour son application, peut être annulée.
A compter de la communication prévue à l'alinéa précédent, tout associé a la faculté de poser par écrit des questions auxquelles le gérant est tenu de répondre au cours de l'assemblée.
L'associé peut, en outre, et à toute époque, obtenir communication, dans les conditions fixées par décret en Conseil d'Etat, des documents sociaux déterminés par ledit décret et concernant les trois derniers exercices.
Toute clause contraire aux dispositions du présent article et du décret pris pour son application, est réputée non écrite.
Les troisième à sixième alinéas de l'article L. 225-100 et l'article L. 225-100-1 s'appliquent au rapport de gestion. Le cas échéant, l'article L. 225-100-2 s'applique au rapport consolidé de gestion.
Article L223-27
Les décisions sont prises en assemblée. Toutefois, les statuts peuvent stipuler qu'à l'exception de celles prévues au premier alinéa de l'article L. 223-26 toutes les décisions ou certaines d'entre elles peuvent être prises par consultation écrite des associés ou pourront résulter du consentement de tous les associés exprimé dans un acte.
Les associés sont convoqués aux assemblées dans les formes et délais prévus par décret en Conseil d'Etat. La convocation est faite par le gérant ou, à défaut, par le commissaire aux comptes, s'il en existe un.L'assemblée ne peut se tenir avant l'expiration du délai de communication des documents mentionnés à l'article L. 223-26.
Hors les cas où l'assemblée délibère sur les opérations mentionnées aux articles L. 232-1 et L. 233-16 et lorsque les statuts le prévoient, sont réputés présents pour le calcul du quorum et de la majorité les associés qui participent à l'assemblée par visioconférence ou par des moyens de
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télécommunication permettant leur identification et dont la nature et les conditions d'application sont déterminées par décret en Conseil d'Etat. Les statuts peuvent prévoir un droit d'opposition à l'utilisation de ces moyens au profit d'un nombre déterminé d'associés et pour une délibération déterminée.
Un ou plusieurs associés détenant la moitié des parts sociales ou détenant, s'ils représentent au moins le quart des associés, le quart des parts sociales, peuvent demander la réunion d'une assemblée. Toute clause contraire est réputée non écrite.
Tout associé peut demander en justice la désignation d'un mandataire chargé de convoquer l'assemblée et de fixer son ordre du jour.
En cas de décès du gérant unique, le commissaire aux comptes ou tout associé convoque l'assemblée des associés à seule fin de procéder au remplacement du gérant. Cette convocation a lieu dans les formes et délais prévus par décret en Conseil d'Etat.
Toute assemblée irrégulièrement convoquée peut être annulée. Toutefois, l'action en nullité n'est pas recevable lorsque tous les associés étaient présents ou représentés.
Article L223-28
Chaque associé a droit de participer aux décisions et dispose d'un nombre de voix égal à celui des parts sociales qu'il possède.
Un associé peut se faire représenter par son conjoint à moins que la société ne comprenne que les deux époux. Sauf si les associés sont au nombre de deux, un associé peut se faire représenter par un autre associé.
Il ne peut se faire représenter par une autre personne que si les statuts le permettent.
Un associé ne peut constituer un mandataire pour voter du chef d'une partie de ses parts et voter en personne du chef de l'autre partie.
Toute clause contraire aux dispositions des premier, deuxième et quatrième alinéas ci-dessus est réputée non écrite.
Article L223-29
Dans les assemblées ou lors des consultations écrites, les décisions sont adoptées par un ou plusieurs associés représentant plus de la moitié des parts sociales.
Si cette majorité n'est pas obtenue et sauf stipulation contraire des statuts, les associés sont, selon les cas, convoqués ou consultés une seconde fois, et les décisions sont prises à la majorité des votes
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émis, quel que soit le nombre des votants.
Article L223-30
Les associés ne peuvent, si ce n'est à l'unanimité, changer la nationalité de la société.
Toutes autres modifications des statuts sont décidées par les associés représentant au moins les trois quarts des parts sociales. Toute clause exigeant une majorité plus élevée est réputée non écrite.
Toutefois, pour les modifications statutaires des sociétés à responsabilité limitée constituées après la publication de la loi n° 2005-882 du 2 août 2005 en faveur des petites et moyennes entreprises, l'assemblée ne délibère valablement que si les associés présents ou représentés possèdent au moins, sur première convocation, le quart des parts et, sur deuxième convocation, le cinquième de celles-ci. A défaut de ce quorum, la deuxième assemblée peut être prorogée à une date postérieure de deux mois au plus à celle à laquelle elle avait été convoquée. Dans l'un ou l'autre de ces deux cas, les modifications sont décidées à la majorité des deux tiers des parts détenues par les associés présents ou représentés. Les statuts peuvent prévoir des quorums ou une majorité plus élevés, sans pouvoir, pour cette dernière, exiger l'unanimité des associés.
Les sociétés constituées antérieurement à la publication de la loi n° 2005-882 du 2 août 2005 précitée peuvent, sur décision prise à l'unanimité des associés, être régies par les dispositions du troisième alinéa.
La majorité ne peut en aucun cas obliger un associé à augmenter son engagement social.
Par dérogation aux dispositions des deuxième et troisième alinéas, la décision d'augmenter le capital par incorporation de bénéfices ou de réserves est prise par les associés représentant au moins la moitié des parts sociales.
Article L223-31
Les trois premiers alinéas de l'article L. 223-26 et les articles L. 223-27 à L. 223-30 ne sont pas applicables aux sociétés ne comprenant qu'un seul associé.
Dans ce cas, le rapport de gestion, l'inventaire et les comptes annuels sont établis par le gérant.L'associé unique approuve les comptes, le cas échéant après rapport des commissaires aux comptes, dans le délai de six mois à compter de la clôture de l'exercice. Lorsque l'associé unique est seul gérant de la société, le dépôt au registre du commerce et des sociétés, dans le même délai, de l'inventaire et des comptes annuels, dûment signés, vaut approbation des comptes sans que l'associé unique ait à porter au registre prévu à l'alinéa suivant le récépissé délivré par le greffe du tribunal de commerce.
L'associé unique ne peut déléguer ses pouvoirs. Ses décisions, prises au lieu et place de l'assemblée, sont répertoriées dans un registre.
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Les décisions prises en violation des dispositions du présent article peuvent être annulées à la demande de tout intéressé.
Article L223-32
En cas d'augmentation de capital par souscription de parts sociales en numéraire, les dispositions du dernier alinéa de l'article L. 223-7 sont applicables.
Le retrait des fonds provenant de souscriptions peut être effectué par un mandataire de la société après l'établissement du certificat du dépositaire.
Si l'augmentation du capital n'est pas réalisée dans le délai de six mois à compter du premier dépôt de fonds, il peut être fait application des dispositions du deuxième alinéa de l'article L. 223-8.
Article L223-33
Si l'augmentation du capital est réalisée, soit en totalité, soit en partie par des apports en nature, les dispositions du premier alinéa de l'article L. 223-9 sont applicables. Toutefois, le commissaire aux apports est nommé par décision de justice à la demande d'un gérant.
Lorsqu'il n'y a pas eu de commissaire aux apports ou lorsque la valeur retenue est différente de celle proposée par le commissaire aux apports, les gérants de la société et les personnes ayant souscrit à l'augmentation du capital sont solidairement responsables pendant cinq ans, à l'égard des tiers, de la valeur attribuée auxdits apports.
Article L223-34
La réduction du capital est autorisée par l'assemblée des associés statuant dans les conditions exigées pour la modification des statuts. En aucun cas, elle ne peut porter atteinte à l'égalité des associés.
S'il existe des commissaires aux comptes, le projet de réduction du capital leur est communiqué dans le délai fixé par décret en Conseil d'Etat. Ils font connaître à l'assemblée leur appréciation sur les causes et conditions de la réduction.
Lorsque l'assemblée approuve un projet de réduction du capital non motivée par des pertes, les créanciers dont la créance est antérieure à la date de dépôt au greffe du procès-verbal de délibération peuvent former opposition à la réduction dans le délai fixé par décret en Conseil d'Etat. Une décision de justice rejette l'opposition ou ordonne, soit le remboursement des créances, soit la constitution de garanties, si la société en offre et si elles sont jugées suffisantes. Les opérations de réduction du capital ne peuvent commencer pendant le délai d'opposition.
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L'achat de ses propres parts par une société est interdit. Toutefois, l'assemblée qui a décidé une réduction du capital non motivée par des pertes peut autoriser le gérant à acheter un nombre déterminé de parts sociales pour les annuler.
Article L223-35
Les associés peuvent nommer un ou plusieurs commissaires aux comptes dans les conditions prévues à l'article L. 223-29.
Sont tenues de désigner un commissaire aux comptes au moins les sociétés à responsabilité limitée qui dépassent à la clôture d'un exercice social des chiffres fixés par décret en Conseil d'Etat pour deux des critères suivants : le total de leur bilan, le montant hors taxes de leur chiffre d'affaires ou le nombre moyen de leurs salariés au cours d'un exercice.
Même si ces seuils ne sont pas atteints, la nomination d'un commissaire aux comptes peut être demandée en justice par un ou plusieurs associés représentant au moins le dixième du capital.
Article L223-36
Tout associé non gérant peut, deux fois par exercice, poser par écrit des questions au gérant sur tout fait de nature à compromettre la continuité de l'exploitation. La réponse du gérant est communiquée au commissaire aux comptes.
Article L223-37
Un ou plusieurs associés représentant au moins le dixième du capital social peuvent, soit individuellement, soit en se groupant sous quelque forme que ce soit, demander en justice la désignation d'un ou plusieurs experts chargés de présenter un rapport sur une ou plusieurs opérations de gestion.
Le ministère public et le comité d'entreprise sont habilités à agir aux mêmes fins.
S'il est fait droit à la demande, la décision de justice détermine l'étendue de la mission et des pouvoirs des experts. Elle peut mettre les honoraires à la charge de la société.
Le rapport est adressé au demandeur, au ministère public, au comité d'entreprise, au commissaire aux comptes ainsi qu'au gérant. Ce rapport doit, en outre, être annexé à celui établi par le commissaire aux comptes en vue de la prochaine assemblée générale et recevoir la même publicité.
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Article L223-39
Les commissaires aux comptes sont avisés, au plus tard en même temps que les associés, des assemblées ou consultations. Ils ont accès aux assemblées.
Les documents visés au premier alinéa de l'article L. 223-26 sont mis à la disposition des commissaires aux comptes dans les conditions déterminées par décret en Conseil d'Etat.
Article L223-40
La répétition des dividendes ne correspondant pas à des bénéfices réellement acquis peut être exigée des associés qui les ont reçus.
L'action en répétition se prescrit par le délai de trois ans à compter de la mise en distribution des dividendes.
Article L223-41
La société à responsabilité limitée n'est pas dissoute lorsqu'un jugement de liquidation judiciaire, la faillite personnelle, l'interdiction de gérer prévue par l'article L. 625-8 ou une mesure d'incapacité est prononcé à l'égard de l'un des associés.
Elle n'est pas non plus dissoute par le décès d'un associé, sauf stipulation contraire des statuts.
Article L223-42
Si, du fait de pertes constatées dans les documents comptables, les capitaux propres de la société deviennent inférieurs à la moitié du capital social, les associés décident, dans les quatre mois qui suivent l'approbation des comptes ayant fait apparaître cette perte s'il y a lieu à dissolution anticipée de la société.
Si la dissolution n'est pas prononcée à la majorité exigée pour la modification des statuts, la société est tenue, au plus tard à la clôture du deuxième exercice suivant celui au cours duquel la constatation des pertes est intervenue, de réduire son capital d'un montant au moins égal à celui des pertes qui n'ont pu être imputées sur les réserves, si, dans ce délai, les capitaux propres n'ont pas été reconstitués à concurrence d'une valeur au moins égale à la moitié du capital social.
Dans les deux cas, la résolution adoptée par les associés est publiée selon les modalités fixées par décret en Conseil d'Etat.
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A défaut par le gérant ou le commissaire aux comptes de provoquer une décision ou si les associés n'ont pu délibérer valablement, tout intéressé peut demander en justice la dissolution de la société. Il en est de même si les dispositions du deuxième alinéa ci-dessus n'ont pas été appliquées. Dans tous les cas, le tribunal peut accorder à la société un délai maximal de six mois pour régulariser sa situation. Il ne peut prononcer la dissolution, si, au jour où il statue sur le fond, cette régularisation a eu lieu.
Les dispositions du présent article ne sont pas applicables aux sociétés en procédure de sauvegarde ou de redressement judiciaire ou qui bénéficient d'un plan de sauvegarde ou de redressement judiciaire.
Article L223-43
La transformation d'une société à responsabilité limitée en société en nom collectif, en commandite simple ou en commandite par actions, exige l'accord unanime des associés.
La transformation en société anonyme est décidée à la majorité requise pour la modification des statuts. Toutefois, elle peut être décidée par des associés représentant la majorité des parts sociales si les capitaux propres figurant au dernier bilan excèdent 750 000 euros.
La décision est précédée du rapport d'un commissaire aux comptes inscrit, sur la situation de la société.
Toute transformation, effectuée en violation des règles du présent article, est nulle.
Chapitre IV : Dispositions générales applicables aux sociétés par actions.
Article L224-1
La société par actions est désignée par une dénomination sociale, qui doit être précédée ou suivie de la mention de la forme de la société et du montant du capital social.
Le nom d'un ou plusieurs associés peut être inclus dans la dénomination sociale. Toutefois, dans la société en commandite par actions, le nom des associés commanditaires ne peut y figurer.
Article L224-2
Le capital social doit être de 37 000 € au moins.
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La réduction du capital social à un montant inférieur ne peut être décidée que sous la condition suspensive d'une augmentation de capital destinée à amener celui-ci à un montant au moins égal au montant prévu à l'alinéa précédent, à moins que la société ne se transforme en société d'une autre forme. En cas d'inobservation des dispositions du présent alinéa, tout intéressé peut demander en justice la dissolution de la société. Cette dissolution ne peut être prononcée si, au jour où le tribunal statue sur le fond, la régularisation a eu lieu.
Par dérogation au premier alinéa, le capital des sociétés de rédacteurs de presse est de 300 euros au moins lorsqu'elles sont constituées sous la forme de société anonyme.
Article L224-3
Lorsqu'une société de quelque forme que ce soit qui n'a pas de commissaire aux comptes se transforme en société par actions, un ou plusieurs commissaires à la transformation, chargés d'apprécier sous leur responsabilité la valeur des biens composant l'actif social et les avantages particuliers, sont désignés, sauf accord unanime des associés par décision de justice à la demande des dirigeants sociaux ou de l'un d'eux. Les commissaires à la transformation peuvent être chargés de l'établissement du rapport sur la situation de la société mentionné au troisième alinéa de l'article L. 223-43. Dans ce cas, il n'est rédigé qu'un seul rapport. Ces commissaires sont soumis aux incompatibilités prévues à l'article L. 225-224. Le commissaire aux comptes de la société peut être nommé commissaire à la transformation. Le rapport est tenu à la disposition des associés.
Les associés statuent sur l'évaluation des biens et l'octroi des avantages particuliers. Ils ne peuvent les réduire qu'à l'unanimité.
A défaut d'approbation expresse des associés, mentionnée au procès-verbal, la transformation est nulle.
Chapitre V : Des sociétés anonymes.
Article L225-1
La société anonyme est la société dont le capital est divisé en actions et qui est constituée entre des associés qui ne supportent les pertes qu'à concurrence de leurs apports. Le nombre des associés ne peut être inférieur à sept.
Section 1 : De la constitution des sociétés anonymes.
Sous-section 1 : De la constitution avec offre au public.
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Article L225-2
Le projet de statuts est établi et signé par un ou plusieurs fondateurs, qui déposent un exemplaire au greffe du tribunal de commerce du lieu du siège social.
Les fondateurs publient une notice dans les conditions déterminées par décret en Conseil d'Etat.
Aucune souscription ne peut être reçue si les formalités prévues aux premier et deuxième alinéas ci-dessus n'ont pas été observées.
Les personnes déchues du droit d'administrer ou de gérer une société ou auxquelles l'exercice de ces fonctions est interdit ne peuvent être fondateurs.
Article L225-3
Le capital doit être intégralement souscrit.
Les actions de numéraire sont libérées, lors de la souscription, de la moitié au moins de leur valeur nominale. La libération du surplus intervient en une ou plusieurs fois sur décision du conseil d'administration ou du directoire selon le cas, dans un délai qui ne peut excéder cinq ans à compter de l'immatriculation de la société au registre du commerce et des sociétés.
Les actions d'apport sont intégralement libérées dès leur émission.
Les actions ne peuvent représenter des apports en industrie.
Article L225-4
La souscription des actions de numéraire est constatée par un bulletin établi dans les conditions déterminées par décret en Conseil d'Etat.
Article L225-5
Les fonds provenant des souscriptions en numéraire et la liste des souscripteurs avec l'indication des sommes versées par chacun d'eux font l'objet d'un dépôt dans les conditions déterminées par décret en Conseil d'Etat, celui-ci fixe également les conditions dans lesquelles est ouvert le droit à communication de cette liste.
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A l'exception des dépositaires visés par le décret prévu à l'alinéa précédent, nul ne peut détenir plus de huit jours les sommes recueillies pour le compte d'une société en formation.
Article L225-6
Les souscriptions et les versements sont constatés par un certificat du dépositaire établi, au moment du dépôt des fonds, sur présentation des bulletins de souscription.
Article L225-7
Après la délivrance du certificat du dépositaire, les fondateurs convoquent les souscripteurs en assemblée générale constitutive dans les formes et délais prévus par décret en Conseil d'Etat.
Cette assemblée constate que le capital est entièrement souscrit et que les actions sont libérées du montant exigible. Elle se prononce sur l'adoption des statuts qui ne peuvent être modifiés qu'à l'unanimité de tous les souscripteurs, nomme les premiers administrateurs ou membres du conseil de surveillance, désigne un ou plusieurs commissaires aux comptes. Le procès-verbal de la séance de l'assemblée constate, s'il y a lieu, l'acceptation de leurs fonctions par les administrateurs ou membres du conseil de surveillance et par les commissaires aux comptes.
Article L225-8
En cas d'apports en nature comme au cas de stipulation d'avantages particuliers au profit de personnes associées ou non, un ou plusieurs commissaires aux apports sont désignés par décision de justice, à la demande des fondateurs ou de l'un d'entre eux. Ils sont soumis aux incompatibilités prévues à l'article L. 822-11.
Les commissaires apprécient, sous leur responsabilité, la valeur des apports en nature et les avantages particuliers. Le rapport déposé au greffe, avec le projet de statuts, est tenu à la disposition des souscripteurs, dans les conditions déterminées par décret en Conseil d'Etat.
L'assemblée générale constitutive statue sur l'évaluation des apports en nature et l'octroi d'avantages particuliers. Elle ne peut les réduire qu'à l'unanimité de tous les souscripteurs.
A défaut d'approbation expresse des apporteurs et des bénéficiaires d'avantages particuliers, mentionnée au procès-verbal, la société n'est pas constituée.
Article L225-9
Les souscripteurs d'actions prennent part au vote ou se font représenter dans les conditions prévues aux articles L. 225-106, L. 225-110 et L. 225-113.
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L'assemblée constitutive délibère aux conditions de quorum et de majorité prévues pour les assemblées extraordinaires.
Article L225-10
Lorsque l'assemblée délibère sur l'approbation d'un apport en nature ou l'octroi d'un avantage particulier, les actions de l'apporteur ou du bénéficiaire ne sont pas prises en compte pour le calcul de la majorité.
L'apporteur ou le bénéficiaire n'a voix délibérative ni pour lui-même ni comme mandataire.
Article L225-11
Le retrait des fonds provenant des souscriptions en numéraire ne peut être effectué par le mandataire de la société avant l'immatriculation de celle-ci au registre du commerce et des sociétés.
Si la société n'est pas constituée dans le délai de six mois à compter du dépôt du projet de statuts au greffe, tout souscripteur peut demander en justice la nomination d'un mandataire chargé de retirer les fonds pour les restituer aux souscripteurs, sous déduction des frais de répartition.
Si le ou les fondateurs décident ultérieurement de constituer la société, il doit être procédé à nouveau au dépôt des fonds et à la déclaration prévus aux articles L. 225-5 et L. 225-6.
Sous-section 2 : De la constitution sans offre au public.
Article L225-12
Lorsqu'il n'est pas procédé à une offre au public, les dispositions de la sous-section 1 sont applicables, à l'exception des articles L. 225-2, L. 225-4, L. 225-7, des deuxième, troisième et quatrième alinéas de l'article L. 225-8 et des articles L. 225-9 et L. 225-10.
Article L225-13
Les versements sont constatés par un certificat du dépositaire établi, au moment du dépôt des fonds, sur présentation de la liste des actionnaires mentionnant les sommes versées par chacun d'eux.
Article L225-14
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Les statuts contiennent l'évaluation des apports en nature. Il y est procédé au vu d'un rapport annexé aux statuts et établi, sous sa responsabilité, par un commissaire aux apports.
Si des avantages particuliers sont stipulés, la même procédure est suivie.
Article L225-15
Les statuts sont signés par les actionnaires, soit en personne, soit par mandataire justifiant d'un pouvoir spécial, après l'établissement du certificat du dépositaire et après mise à disposition des actionnaires, dans les conditions et délais déterminés par décret en Conseil d'Etat, du rapport prévu à l'article L. 225-14.
Article L225-16
Les premiers administrateurs ou les premiers membres du conseil de surveillance et les premiers commissaires aux comptes sont désignés dans les statuts.
Section 2 : De la direction et de l'administration des sociétés anonymes.
Sous-section 1 : Du conseil d'administration de la direction générale.
Article L225-17
La société anonyme est administrée par un conseil d'administration composé de trois membres au moins. Les statuts fixent le nombre maximum des membres du conseil, qui ne peut dépasser dix-huit.
Toutefois, en cas de décès, de démission ou de révocation du président du conseil d'administration et si le conseil n'a pu le remplacer par un de ses membres, il peut nommer, sous réserve des dispositions de l'article L. 225-24, un administrateur supplémentaire qui est appelé aux fonctions de président.
Article L225-18
Les administrateurs sont nommés par l'assemblée générale constitutive ou par l'assemblée générale
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ordinaire. Dans le cas prévu à l'article L. 225-16, ils sont désignés dans les statuts. La durée de leurs fonctions est déterminée par les statuts sans pouvoir excéder six ans en cas de nomination par les assemblées générales et trois ans en cas de nomination dans les statuts. Toutefois, en cas de fusion ou de scission, la nomination peut être faite par l'assemblée générale extraordinaire.
Les administrateurs sont rééligibles, sauf stipulation contraire des statuts. Ils peuvent être révoqués à tout moment par l'assemblée générale ordinaire.
Toute nomination intervenue en violation des dispositions précédentes est nulle, à l'exception de celles auxquelles il peut être procédé dans les conditions prévues à l'article L. 225-24.
Article L225-19
Les statuts doivent prévoir, pour l'exercice des fonctions d'administrateur, une limite d'âge s'appliquant soit à l'ensemble des administrateurs, soit à un pourcentage déterminé d'entre eux.
A défaut de disposition expresse dans les statuts, le nombre des administrateurs ayant dépassé l'âge de soixante-dix ans ne peut être supérieur au tiers des administrateurs en fonctions.
Toute nomination intervenue en violation des dispositions de l'alinéa précédent est nulle.
A défaut de disposition expresse dans les statuts prévoyant une autre procédure, lorsque la limitation statutaire ou légale fixée pour l'âge des administrateurs est dépassée, l'administrateur le plus âgé est réputé démissionnaire d'office.
Article L225-20
Une personne morale peut être nommée administrateur. Lors de sa nomination, elle est tenue de désigner un représentant permanent qui est soumis aux mêmes conditions et obligations et qui encourt les mêmes responsabilités civile et pénale que s'il était administrateur en son nom propre, sans préjudice de la responsabilité solidaire de la personne morale qu'il représente.
Lorsque la personne morale révoque son représentant, elle est tenue de pourvoir en même temps à son remplacement.
Article L225-21
Une personne physique ne peut exercer simultanément plus de cinq mandats d'administrateur de sociétés anonymes ayant leur siège sur le territoire français.
Par dérogation aux dispositions du premier alinéa, ne sont pas pris en compte les mandats
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d'administrateur ou de membre du conseil de surveillance exercés par cette personne dans les sociétés contrôlées au sens de l'article L. 233-16 par la société dont elle est administrateur.
Pour l'application des dispositions du présent article, les mandats d'administrateur des sociétés dont les titres ne sont pas admis aux négociations sur un marché réglementé et contrôlées au sens de l'article L. 233-16 par une même société ne comptent que pour un seul mandat, sous réserve que le nombre de mandats détenus à ce titre n'excède pas cinq.
Toute personne physique qui se trouve en infraction avec les dispositions du présent article doit se démettre de l'un de ses mandats dans les trois mois de sa nomination, ou du mandat en cause dans les trois mois de l'événement ayant entraîné la disparition de l'une des conditions fixées à l'alinéa précédent. A l'expiration de ce délai, elle est réputée s'être démise, selon le cas, soit de son nouveau mandat, soit du mandat ne répondant plus aux conditions fixées à l'alinéa précédent, et doit restituer les rémunérations perçues, sans que soit, de ce fait, remise en cause la validité des délibérations auxquelles elle a pris part.
Article L225-22
Un salarié de la société ne peut être nommé administrateur que si son contrat de travail correspond à un emploi effectif. Il ne perd pas le bénéfice de ce contrat de travail. Toute nomination intervenue en violation des dispositions du présent alinéa est nulle. Cette nullité n'entraîne pas celle des délibérations auxquelles a pris part l'administrateur irrégulièrement nommé.
Le nombre des administrateurs liés à la société par un contrat de travail ne peut dépasser le tiers des administrateurs en fonction.
Toutefois, les administrateurs élus par les salariés, les administrateurs représentant les salariés actionnaires ou le fonds commun de placement d'entreprise en application de l'article L. 225-23 et, dans les sociétés anonymes à participation ouvrière, les représentants de la société coopérative de main-d'oeuvre ne sont pas comptés pour la détermination du nombre des administrateurs liés à la société par un contrat de travail mentionné à l'alinéa précédent.
En cas de fusion ou de scission, le contrat de travail peut avoir été conclu avec l'une des sociétés fusionnées ou avec la société scindée.
Article L225-22-1
Dans les sociétés dont les titres sont admis aux négociations sur un marché réglementé, en cas de nomination aux fonctions de président, de directeur général ou de directeur général délégué d'une personne liée par un contrat de travail à la société ou à toute société contrôlée ou qui la contrôle au sens des II et III de l'article L. 233-16, les dispositions dudit contrat correspondant, le cas échéant, à des éléments de rémunération, des indemnités ou des avantages dus ou susceptibles d'être dus à raison de la cessation ou du changement de ces fonctions, ou postérieurement à celles-ci, sont soumises au régime prévu par l'article L. 225-42-1.
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Article L225-23
Dans les sociétés dont les titres sont admis aux négociations sur un marché réglementé, lorsque le rapport présenté par le conseil d'administration lors de l'assemblée générale en application de l'article L. 225-102 établit que les actions détenues par le personnel de la société ainsi que par le personnel de sociétés qui lui sont liées au sens de l'article L. 225-180 représentent plus de 3 % du capital social de la société, un ou plusieurs administrateurs sont élus par l'assemblée générale des actionnaires sur proposition des actionnaires visés à l'article L. 225-102. Ceux-ci se prononcent par un vote dans des conditions fixées par les statuts. Ces administrateurs sont élus parmi les salariés actionnaires ou, le cas échéant, parmi les salariés membres du conseil de surveillance d'un fonds commun de placement d'entreprise détenant des actions de la société. Ces administrateurs ne sont pas pris en compte pour la détermination du nombre minimal et du nombre maximal d'administrateurs prévus à l'article L. 225-17. La durée de leur mandat est déterminée par application de l'article L. 225-18. Toutefois, leur mandat prend fin par l'arrivée du terme ou la rupture, pour quelque cause que ce soit, de leur contrat de travail.
Si l'assemblée générale extraordinaire ne s'est pas réunie dans un délai de dix-huit mois à compter de la présentation du rapport, tout salarié actionnaire peut demander au président du tribunal statuant en référé d'enjoindre sous astreinte au conseil d'administration de convoquer une assemblée générale extraordinaire et de soumettre à celle-ci les projets de résolutions tendant à modifier les statuts dans le sens prévu à l'alinéa précédent et au dernier alinéa du présent article.
Lorsqu'il est fait droit à la demande, l'astreinte et les frais de procédure sont à la charge des administrateurs.
Les sociétés dont le conseil d'administration comprend un ou plusieurs administrateurs nommés parmi les membres du conseil de surveillance des fonds communs de placement d'entreprise représentant les salariés, ou un ou plusieurs salariés élus en application des dispositions de l'article L. 225-27, ne sont pas tenues aux obligations prévues au premier alinéa.
Lorsque l'assemblée générale extraordinaire est convoquée en application du premier alinéa, elle se prononce également sur un projet de résolution prévoyant l'élection d'un ou plusieurs administrateurs par le personnel de la société et des filiales directes ou indirectes dont le siège social est fixé en France. Le cas échéant, ces représentants sont désignés dans les conditions prévues à l'article L. 225-27.
Article L225-24
En cas de vacance par décès ou par démission d'un ou plusieurs sièges d'administrateur, le conseil d'administration peut, entre deux assemblées générales, procéder à des nominations à titre provisoire.
Lorsque le nombre des administrateurs est devenu inférieur au minimum légal, les administrateurs restants doivent convoquer immédiatement l'assemblée générale ordinaire en vue de compléter
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l'effectif du conseil.
Lorsque le nombre des administrateurs est devenu inférieur au minimum statutaire, sans toutefois être inférieur au minimum légal, le conseil d'administration doit procéder à des nominations à titre provisoire en vue de compléter son effectif dans le délai de trois mois à compter du jour où se produit la vacance.
Les nominations effectuées par le conseil en vertu des premier et troisième alinéas ci-dessus sont soumises à ratification de la plus prochaine assemblée générale ordinaire. A défaut de ratification, les délibérations prises et les actes accomplis antérieurement par le conseil n'en demeurent pas moins valables.
Lorsque le conseil néglige de procéder aux nominations requises ou de convoquer l'assemblée, tout intéressé peut demander en justice, la désignation d'un mandataire chargé de convoquer l'assemblée générale, à l'effet de procéder aux nominations ou de ratifier les nominations prévues au troisième alinéa.
Article L225-25
Les statuts peuvent imposer que chaque administrateur soit propriétaire d'un nombre d'actions de la société, qu'ils déterminent.
Si, au jour de sa nomination, un administrateur n'est pas propriétaire du nombre d'actions requis ou si, en cours de mandat, il cesse d'en être propriétaire, il est réputé démissionnaire d'office, s'il n'a pas régularisé sa situation dans le délai de six mois.
Les dispositions du premier alinéa ne s'appliquent pas aux actionnaires salariés nommés administrateurs en application de l'article L. 225-23.
Article L225-26
Les commissaires aux comptes veillent, sous leur responsabilité, à l'observation des dispositions prévues à l'article L. 225-25 et en dénoncent toute violation dans leur rapport à l'assemblée générale annuelle.
Article L225-27
Il peut être stipulé dans les statuts que le conseil d'administration comprend, outre les administrateurs dont le nombre et le mode de désignation sont prévus aux articles L. 225-17 et L. 225-18, des administrateurs élus soit par le personnel de la société, soit par le personnel de la société et celui de ses filiales directes ou indirectes dont le siège social est fixé sur le territoire français. Le nombre de ces administrateurs ne peut être supérieur à quatre ou, dans les sociétés dont
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les actions sont admises aux négociations sur un marché réglementé, cinq, ni excéder le tiers du nombre des autres administrateurs. Lorsque le nombre des administrateurs élus par les salariés est égal ou supérieur à deux, les ingénieurs, cadres et assimilés ont un siège au moins.
Les administrateurs élus par les salariés ne sont pas pris en compte pour la détermination du nombre minimal et du nombre maximal d'administrateurs prévus à l'article L. 225-17.
Article L225-28
Les administrateurs élus par les salariés doivent être titulaires d'un contrat de travail avec la société ou l'une de ses filiales directes ou indirectes dont le siège social est fixé sur le territoire français antérieur de deux années au moins à leur nomination et correspondant à un emploi effectif. Toutefois, la condition d'ancienneté n'est pas requise lorsque au jour de la nomination la société est constituée depuis moins de deux ans.
Tous les salariés de la société et le cas échéant de ses filiales directes ou indirectes, dont le siège social est fixé sur le territoire français dont le contrat de travail est antérieur de trois mois à la date de l'élection sont électeurs. Le vote est secret.
Lorsqu'un siège au moins est réservé aux ingénieurs, cadres et assimilés, les salariés sont divisés en deux collèges votant séparément. Le premier collège comprend les ingénieurs, cadres et assimilés, le second les autres salariés. Les statuts fixent la répartition des sièges par collège en fonction de la structure du personnel.
Les candidats ou listes de candidats peuvent être présentés soit par une ou plusieurs organisations syndicales représentatives au sens de l'article L. 423-2 du code du travail, soit par le vingtième des électeurs ou, si le nombre de ceux-ci est supérieur à deux mille, par cent d'entre eux.
Lorsqu'il y a un seul siège à pourvoir pour l'ensemble du corps électoral, l'élection a lieu au scrutin majoritaire à deux tours. Lorsqu'il y a un seul siège à pourvoir dans un collège électoral, l'élection a lieu au scrutin majoritaire à deux tours dans ce collège. Chaque candidature doit comporter, outre le nom du candidat, celui de son remplaçant éventuel. Est déclaré élu le candidat ayant obtenu au premier tour la majorité absolue des suffrages exprimés, au second tour la majorité relative.
Dans les autres cas, l'élection a lieu au scrutin de liste à la représentation proportionnelle au plus fort reste et sans panachage. Chaque liste doit comporter un nombre de candidats double de celui des sièges à pourvoir.
En cas d'égalité des voix, les candidats dont le contrat de travail est le plus ancien sont déclarés élus.
Les autres modalités du scrutin sont fixées par les statuts.
Les contestations relatives à l'électorat, à l'éligibilité et à la régularité des opérations électorales sont portées devant le juge d'instance qui statue en dernier ressort dans les conditions prévues par le
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premier alinéa de l'article L. 433-11 du code du travail.
Article L225-29
La durée du mandat d'administrateur élu par les salariés est déterminée par les statuts, sans pouvoir excéder six ans. Le mandat est renouvelable, sauf stipulation contraire des statuts.
Toute nomination intervenue en violation des articles L. 225-27, L. 225-28 et du présent article est nulle. Cette nullité n'entraîne pas celle des délibérations auxquelles a pris part l'administrateur irrégulièrement nommé.
Article L225-30
Le mandat d'administrateur élu par les salariés est incompatible avec tout mandat de délégué syndical, de membre du comité d'entreprise, de délégué du personnel ou de membre du comité d'hygiène, de sécurité et des conditions de travail de la société. L'administrateur qui, lors de son élection, est titulaire d'un ou de plusieurs de ces mandats doit s'en démettre dans les huit jours. A défaut, il est réputé démissionnaire de son mandat d'administrateur.
Article L225-31
Les administrateurs élus par les salariés ne perdent pas le bénéfice de leur contrat de travail. Leur rémunération en tant que salariés ne peut être réduite du fait de l'exercice de leur mandat.
Article L225-32
La rupture du contrat de travail met fin au mandat de l'administrateur élu par les salariés.
Les administrateurs élus par les salariés ne peuvent être révoqués que pour faute dans l'exercice de leur mandat, par décision du président du tribunal de grande instance, rendue en la forme des référés, à la demande de la majorité des membres du conseil d'administration. La décision est exécutoire par provision.
Article L225-33
Sauf en cas de résiliation à l'initiative du salarié, la rupture du contrat de travail d'un administrateur élu par les salariés ne peut être prononcée que par le bureau de jugement du conseil des prud'hommes statuant en la forme des référés. La décision est exécutoire par provision.
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Article L225-34
I. - En cas de vacance, par décès, démission, révocation, rupture du contrat de travail ou pour toute autre cause que ce soit, d'un siège d'administrateur élu par les salariés, le siège vacant est pourvu de la manière suivante :
1° Lorsque l'élection a eu lieu au scrutin majoritaire à deux tours, par le remplaçant ;
2° Lorsque l'élection a eu lieu au scrutin de liste, par le candidat figurant sur la même liste immédiatement après le dernier candidat élu.
II. - Le mandat de l'administrateur ainsi désigné prend fin à l'arrivée du terme normal du mandat des autres administrateurs élus par les salariés.
Article L225-35
Le conseil d'administration détermine les orientations de l'activité de la société et veille à leur mise en oeuvre. Sous réserve des pouvoirs expressément attribués aux assemblées d'actionnaires et dans la limite de l'objet social, il se saisit de toute question intéressant la bonne marche de la société et règle par ses délibérations les affaires qui la concernent.
Dans les rapports avec les tiers, la société est engagée même par les actes du conseil d'administration qui ne relèvent pas de l'objet social, à moins qu'elle ne prouve que le tiers savait que l'acte dépassait cet objet ou qu'il ne pouvait l'ignorer compte tenu des circonstances, étant exclu que la seule publication des statuts suffise à constituer cette preuve.
Le conseil d'administration procède aux contrôles et vérifications qu'il juge opportuns. Le président ou le directeur général de la société est tenu de communiquer à chaque administrateur tous les documents et informations nécessaires à l'accomplissement de sa mission.
Les cautions, avals et garanties donnés par des sociétés autres que celles exploitant des établissements bancaires ou financiers font l'objet d'une autorisation du conseil dans les conditions déterminées par décret en Conseil d'Etat. Ce décret détermine également les conditions dans lesquelles le dépassement de cette autorisation peut être opposé aux tiers.
Article L225-36
Le déplacement du siège social dans le même département ou dans un département limitrophe peut être décidé par le conseil d'administration, sous réserve de ratification de cette décision par la prochaine assemblée générale ordinaire.
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Article L225-36-1
Les statuts de la société déterminent les règles relatives à la convocation et aux délibérations du conseil d'administration.
Lorsqu'il ne s'est pas réuni depuis plus de deux mois, le tiers au moins des membres du conseil d'administration peut demander au président de convoquer celui-ci sur un ordre du jour déterminé.
Le directeur général peut également demander au président de convoquer le conseil d'administration sur un ordre du jour déterminé.
Le président est lié par les demandes qui lui sont adressées en vertu des deux alinéas précédents.
Article L225-37
Le conseil d'administration ne délibère valablement que si la moitié au moins de ses membres sont présents. Toute clause contraire est réputée non écrite.
A moins que les statuts ne prévoient une majorité plus forte, les décisions sont prises à la majorité des membres présents ou représentés.
Sauf lorsque le conseil est réuni pour procéder aux opérations visées aux articles L. 232-1 et L. 233-16 et sauf disposition contraire des statuts, le règlement intérieur peut prévoir que sont réputés présents, pour le calcul du quorum et de la majorité, les administrateurs qui participent à la réunion par des moyens de visioconférence ou de télécommunication permettant leur identification et garantissant leur participation effective, dont la nature et les conditions d'application sont déterminées par décret en Conseil d'Etat. Les statuts peuvent limiter la nature des décisions pouvant être prises lors d'une réunion tenue dans ces conditions et prévoir un droit d'opposition au profit d'un nombre déterminé d'administrateurs.
Sauf disposition contraire des statuts, la voix du président de séance est prépondérante en cas de partage.
Les administrateurs, ainsi que toute personne appelée à assister aux réunions du conseil d'administration, sont tenus à la discrétion à l'égard des informations présentant un caractère confidentiel et données comme telles par le président du conseil d'administration.
Dans les sociétés dont les titres financiers sont admis aux négociations sur un marché réglementé , le président du conseil d'administration rend compte, dans un rapport joint au rapport mentionné
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aux articles L. 225-100, L. 225-102, L. 225-102-1 et L. 233-26, de la composition, des conditions de préparation et d'organisation des travaux du conseil, ainsi que des procédures de contrôle interne et de gestion des risques mises en place par la société, en détaillant notamment celles de ces procédures qui sont relatives à l'élaboration et au traitement de l'information comptable et financière pour les comptes sociaux et, le cas échéant, pour les comptes consolidés. Sans préjudice des dispositions de l'article L. 225-56, ce rapport indique en outre les éventuelles limitations que le conseil d'administration apporte aux pouvoirs du directeur général.
Lorsqu'une société se réfère volontairement à un code de gouvernement d'entreprise élaboré par les organisations représentatives des entreprises, le rapport prévu au présent article précise également les dispositions qui ont été écartées et les raisons pour lesquelles elles l'ont été. Se trouve de surcroît précisé le lieu où ce code peut être consulté. Si une société ne se réfère pas à un tel code de gouvernement d'entreprise, ce rapport indique les règles retenues en complément des exigences requises par la loi et explique les raisons pour lesquelles la société a décidé de n'appliquer aucune disposition de ce code de gouvernement d'entreprise.
Le rapport prévu au présent article précise aussi les modalités particulières relatives à la participation des actionnaires à l'assemblée générale ou renvoie aux dispositions des statuts qui prévoient ces modalités.
Ce rapport présente en outre les principes et les règles arrêtés par le conseil d'administration pour déterminer les rémunérations et avantages de toute nature accordés aux mandataires sociaux et il mentionne la publication des informations prévues par l'article L. 225-100-3.
Le rapport prévu au présent article est approuvé par le conseil d'administration et est rendu public.
Article L225-38
Toute convention intervenant directement ou par personne interposée entre la société et son directeur général, l'un de ses directeurs généraux délégués, l'un de ses administrateurs, l'un de ses actionnaires disposant d'une fraction des droits de vote supérieure à 10 % ou, s'il s'agit d'une société actionnaire, la société la contrôlant au sens de l'article L. 233-3, doit être soumise à l'autorisation préalable du conseil d'administration.
Il en est de même des conventions auxquelles une des personnes visées à l'alinéa précédent est indirectement intéressée.
Sont également soumises à autorisation préalable les conventions intervenant entre la société et une entreprise, si le directeur général, l'un des directeurs généraux délégués ou l'un des administrateurs de la société est propriétaire, associé indéfiniment responsable, gérant, administrateur, membre du conseil de surveillance ou, de façon générale, dirigeant de cette entreprise.
Article L225-39
Les dispositions de l'article L. 225-38 ne sont pas applicables aux conventions portant sur des opérations courantes et conclues à des conditions normales.
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Cependant, ces conventions, sauf lorsqu'en raison de leur objet ou de leurs implications financières, elles ne sont significatives pour aucune des parties, sont communiquées par l'intéressé au président du conseil d'administration. La liste et l'objet desdites conventions sont communiqués par le président aux membres du conseil d'administration et aux commissaires aux comptes.
Article L225-40
L'intéressé est tenu d'informer le conseil, dès qu'il a connaissance d'une convention à laquelle l'article L. 225-38 est applicable. Il ne peut prendre part au vote sur l'autorisation sollicitée.
Le président du conseil d'administration donne avis aux commissaires aux comptes de toutes les conventions autorisées et soumet celles-ci à l'approbation de l'assemblée générale.
Les commissaires aux comptes présentent, sur ces conventions, un rapport spécial à l'assemblée, qui statue sur ce rapport.
L'intéressé ne peut pas prendre part au vote et ses actions ne sont pas prises en compte pour le calcul du quorum et de la majorité.
Article L225-41
Les conventions approuvées par l'assemblée, comme celles qu'elle désapprouve, produisent leurs effets à l'égard des tiers, sauf lorsqu'elles sont annulées dans le cas de fraude.
Même en l'absence de fraude, les conséquences, préjudiciables à la société, des conventions désapprouvées peuvent être mises à la charge de l'intéressé et, éventuellement, des autres membres du conseil d'administration.
Article L225-42
Sans préjudice de la responsabilité de l'intéressé, les conventions visées à l'article L. 225-38 et conclues sans autorisation préalable du conseil d'administration peuvent être annulées si elles ont eu des conséquences dommageables pour la société.
L'action en nullité se prescrit par trois ans, à compter de la date de la convention. Toutefois, si la convention a été dissimulée, le point de départ du délai de la prescription est reporté au jour où elle a été révélée.
La nullité peut être couverte par un vote de l'assemblée générale intervenant sur rapport spécial des commissaires aux comptes exposant les circonstances en raison desquelles la procédure d'autorisation n'a pas été suivie. Les dispositions du quatrième alinéa de l'article L. 225-40 sont applicables.
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Article L225-42-1
Dans les sociétés dont les titres sont admis aux négociations sur un marché réglementé, les engagements pris au bénéfice de leurs présidents, directeurs généraux ou directeurs généraux délégués, par la société elle-même ou par toute société contrôlée ou qui la contrôle au sens des II et III de l'article L. 233-16, et correspondant à des éléments de rémunération, des indemnités ou des avantages dus ou susceptibles d'être dus à raison de la cessation ou du changement de ces fonctions, ou postérieurement à celles-ci, sont soumis aux dispositions des articles L. 225-38 et L. 225-40 à L. 225-42.
Sont interdits les éléments de rémunération, indemnités et avantages dont le bénéfice n'est pas subordonné au respect de conditions liées aux performances du bénéficiaire, appréciées au regard de celles de la société dont il préside le conseil d'administration ou exerce la direction générale ou la direction générale déléguée.
L'autorisation donnée par le conseil d'administration en application de l'article L. 225-38 est rendue publique selon des modalités et dans des délais fixés par décret en Conseil d'Etat.
La soumission à l'approbation de l'assemblée générale en application de l'article L. 225-40 fait l'objet d'une résolution spécifique pour chaque bénéficiaire. Cette approbation est requise à chaque renouvellement du mandat exercé par les personnes mentionnées au premier alinéa.
Aucun versement, de quelque nature que ce soit, ne peut intervenir avant que le conseil d'administration ne constate, lors ou après la cessation ou le changement effectif des fonctions, le respect des conditions prévues. Cette décision est rendue publique selon des modalités et dans des délais fixés par décret en Conseil d'Etat. Tout versement effectué en méconnaissance des dispositions du présent alinéa est nul de plein droit.
Les engagements correspondant à des indemnités en contrepartie d'une clause interdisant au bénéficiaire, après la cessation de ses fonctions dans la société, l'exercice d'une activité professionnelle concurrente portant atteinte aux intérêts de la société ne sont soumis qu'aux dispositions du premier alinéa. Il en va de même des engagements de retraite à prestations définies répondant aux caractéristiques des régimes mentionnés à l'article L. 137-11 du code de la sécurité sociale, ainsi que des engagements répondant aux caractéristiques des régimes collectifs et obligatoires de retraite et de prévoyance visés à l'article L. 242-1 du même code.
Article L225-43
A peine de nullité du contrat, il est interdit aux administrateurs autres que les personnes morales de contracter, sous quelque forme que ce soit, des emprunts auprès de la société, de se faire consentir par elle un découvert, en compte courant ou autrement, ainsi que de faire cautionner ou avaliser par elle leurs engagements envers les tiers.
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Toutefois, si la société exploite un établissement bancaire ou financier, cette interdiction ne s'applique pas aux opérations courantes de ce commerce conclues à des conditions normales.
La même interdiction s'applique au directeur général, aux directeurs généraux délégués et aux représentants permanents des personnes morales administrateurs. Elle s'applique également aux conjoint, ascendants et descendants des personnes visées au présent article ainsi qu'à toute personne interposée.
Article L225-44
Sous réserve des dispositions de l'article L. 225-22 et de l'article L. 225-27, les administrateurs ne peuvent recevoir de la société aucune rémunération, permanente ou non, autre que celles prévues aux articles L. 225-45, L. 225-46, L. 225-47 et L. 225-53.
Toute clause statutaire contraire est réputée non écrite et toute décision contraire est nulle.
Article L225-45
L'assemblée générale peut allouer aux administrateurs en rémunération de leur activité, à titre de jetons de présence, une somme fixe annuelle que cette assemblée détermine sans être liée par des dispositions statutaires ou des décisions antérieures. Le montant de celle-ci est porté aux charges d'exploitation. Sa répartition entre les administrateurs est déterminée par le conseil d'administration.
Article L225-46
Il peut être alloué, par le conseil d'administration, des rémunérations exceptionnelles pour les missions ou mandats confiés à des administrateurs. Dans ce cas, ces rémunérations, portées aux charges d'exploitation sont soumises aux dispositions des articles L. 225-38 à L. 225-42.
Article L225-47
Le conseil d'administration élit parmi ses membres un président qui est, à peine de nullité de la nomination, une personne physique. Il détermine sa rémunération.
Le président est nommé pour une durée qui ne peut excéder celle de son mandat d'administrateur. Il est rééligible.
Le conseil d'administration peut le révoquer à tout moment. Toute disposition contraire est réputée non écrite.
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Article L225-48
Les statuts doivent prévoir pour l'exercice des fonctions de président du conseil d'administration une limite d'âge qui, à défaut d'une disposition expresse, est fixée à soixante-cinq ans.
Toute nomination intervenue en violation des dispositions prévues à l'alinéa précédent est nulle.
Lorsqu'un président de conseil d'administration atteint la limite d'âge, il est réputé démissionnaire d'office.
Article L225-50
En cas d'empêchement temporaire ou de décès du président, le conseil d'administration peut déléguer un administrateur dans les fonctions de président.
En cas d'empêchement temporaire, cette délégation est donnée pour une durée limitée. Elle est renouvelable. En cas de décès, elle vaut jusqu'à l'élection du nouveau président.
Article L225-51
Le président du conseil d'administration organise et dirige les travaux de celui-ci, dont il rend compte à l'assemblée générale. Il veille au bon fonctionnement des organes de la société et s'assure, en particulier, que les administrateurs sont en mesure de remplir leur mission.
Article L225-51-1
La direction générale de la société est assumée, sous sa responsabilité, soit par le président du conseil d'administration, soit par une autre personne physique nommée par le conseil d'administration et portant le titre de directeur général.
Dans les conditions définies par les statuts, le conseil d'administration choisit entre les deux modalités d'exercice de la direction générale visées au premier alinéa. Les actionnaires et les tiers sont informés de ce choix dans des conditions définies par décret en Conseil d'Etat.
Lorsque la direction générale de la société est assumée par le président du conseil d'administration, les dispositions de la présente sous-section relatives au directeur général lui sont applicables.
Article L225-52
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En cas d'ouverture d'une procédure de redressement ou de liquidation judiciaire en application du titre II du livre VI, les personnes visées par ces dispositions peuvent être rendues responsables du passif social et sont soumises aux interdictions et déchéances, dans les conditions prévues par lesdites dispositions.
Article L225-53
Sur proposition du directeur général, le conseil d'administration peut nommer une ou plusieurs personnes physiques chargées d'assister le directeur général, avec le titre de directeur général délégué.
Les statuts fixent le nombre maximum des directeurs généraux délégués, qui ne peut dépasser cinq.
Le conseil d'administration détermine la rémunération du directeur général et des directeurs généraux délégués.
Article L225-54
Les statuts doivent prévoir pour l'exercice des fonctions de directeur général ou de directeur général délégué une limite d'âge qui, à défaut d'une disposition expresse, est fixée à soixante-cinq ans.
Toute nomination intervenue en violation des dispositions prévues à l'alinéa précédent est nulle.
Lorsqu'un directeur général ou un directeur général délégué atteint la limite d'âge, il est réputé démissionnaire d'office.
Article L225-54-1
Une personne physique ne peut exercer simultanément plus d'un mandat de directeur général de sociétés anonymes ayant leur siège sur le territoire français.
Par dérogation aux dispositions du premier alinéa :
- un deuxième mandat de directeur général ou un mandat de membre du directoire ou de directeur général unique peut être exercé dans une société contrôlée au sens de l'article L. 233-16 par la société dont il est directeur général ;
- une personne physique exerçant un mandat de directeur général dans une société peut également exercer un mandat de directeur général, de membre du directoire ou de directeur général unique dans une société, dès lors que les titres de celles-ci ne sont pas admis aux négociations sur un
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marché réglementé.
Toute personne physique qui se trouve en infraction avec les dispositions du présent article doit se démettre de l'un de ses mandats dans les trois mois de sa nomination, ou du mandat en cause dans les trois mois de l'évènement ayant entraîné la disparition de l'une des conditions fixées à l'alinéa précédent. A l'expiration de ce délai, elle est réputée s'être démise, selon le cas, soit de son nouveau mandat, soit du mandat ne répondant plus aux conditions fixées à l'alinéa précédent, et doit restituer les rémunérations perçues, sans que soit, de ce fait, remise en cause la validité des délibérations auxquelles elle a pris part.
Article L225-55
Le directeur général est révocable à tout moment par le conseil d'administration. Il en est de même, sur proposition du directeur général, des directeurs généraux délégués. Si la révocation est décidée sans juste motif, elle peut donner lieu à dommages-intérêts, sauf lorsque le directeur général assume les fonctions de président du conseil d'administration.
Lorsque le directeur général cesse ou est empêché d'exercer ses fonctions, les directeurs généraux délégués conservent, sauf décision contraire du conseil, leurs fonctions et leurs attributions jusqu'à la nomination du nouveau directeur général.
Article L225-56
I. - Le directeur général est investi des pouvoirs les plus étendus pour agir en toute circonstance au nom de la société. Il exerce ces pouvoirs dans la limite de l'objet social et sous réserve de ceux que la loi attribue expressément aux assemblées d'actionnaires et au conseil d'administration.
Il représente la société dans ses rapports avec les tiers. La société est engagée même par les actes du directeur général qui ne relèvent pas de l'objet social, à moins qu'elle ne prouve que le tiers savait que l'acte dépassait cet objet ou qu'il ne pouvait l'ignorer compte tenu des circonstances, étant exclu que la seule publication des statuts suffise à constituer cette preuve.
Les dispositions des statuts ou les décisions du conseil d'administration limitant les pouvoirs du directeur général sont inopposables aux tiers.
II. - En accord avec le directeur général, le conseil d'administration détermine l'étendue et la durée des pouvoirs conférés aux directeurs généraux délégués.
Les directeurs généraux délégués disposent, à l'égard des tiers, des mêmes pouvoirs que le directeur général.
Sous-section 2 : Du directoire et du conseil de surveillance.
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Article L225-57
Il peut être stipulé par les statuts de toute société anonyme que celle-ci est régie par les dispositions de la présente sous-section. Dans ce cas, la société reste soumise à l'ensemble des règles applicables aux sociétés anonymes, à l'exclusion de celles prévues aux articles L. 225-17 à L. 225-56.
L'introduction dans les statuts de cette stipulation, ou sa suppression, peut être décidée au cours de l'existence de la société.
Article L225-58
La société anonyme est dirigée par un directoire composé de cinq membres au plus. Lorsque les actions de la société sont admises aux négociations sur un marché réglementé, ce nombre peut être porté par les statuts à sept.
Dans les sociétés anonymes dont le capital est inférieur à 150 000 euros, les fonctions dévolues au directoire peuvent être exercées par une seule personne.
Le directoire exerce ses fonctions sous le contrôle d'un conseil de surveillance.
Article L225-59
Les membres du directoire sont nommés par le conseil de surveillance qui confère à l'un d'eux la qualité de président.
Lorsqu'une seule personne exerce les fonctions dévolues au directoire, elle prend le titre de directeur général unique.
A peine de nullité de la nomination, les membres du directoire ou le directeur général unique sont des personnes physiques. Ils peuvent être choisis en dehors des actionnaires.
Article L225-60
Les statuts doivent prévoir pour l'exercice des fonctions de membre du directoire ou de directeur général unique une limite d'âge qui, à défaut d'une disposition expresse, est fixée à soixante-cinq ans.
Toute nomination intervenue en violation des dispositions prévues à l'alinéa précédent est nulle.
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Lorsqu'un membre du directoire ou le directeur général unique atteint la limite d'âge, il est réputé démissionnaire d'office.
Article L225-61
Les membres du directoire ou le directeur général unique peuvent être révoqués par l'assemblée générale, ainsi que, si les statuts le prévoient, par le conseil de surveillance. Si la révocation est décidée sans juste motif, elle peut donner lieu à dommages-intérêts.
Au cas où l'intéressé aurait conclu avec la société un contrat de travail, la révocation de ses fonctions de membre du directoire n'a pas pour effet de résilier ce contrat.
Article L225-62
Les statuts déterminent la durée du mandat du directoire dans des limites comprises entre deux et six ans. A défaut de disposition statutaire, la durée du mandat est de quatre ans. En cas de vacance, le remplaçant est nommé pour le temps qui reste à courir jusqu'au renouvellement du directoire.
Article L225-63
L'acte de nomination fixe le mode et le montant de la rémunération de chacun des membres du directoire.
Article L225-64
Le directoire est investi des pouvoirs les plus étendus pour agir en toute circonstance au nom de la société. Il les exerce dans la limite de l'objet social et sous réserve de ceux expressément attribués par la loi au conseil de surveillance et aux assemblées d'actionnaires.
Dans les rapports avec les tiers, la société est engagée même par les actes du directoire qui ne relèvent pas de l'objet social, à moins qu'elle ne prouve que le tiers savait que l'acte dépassait cet objet ou qu'il ne pouvait l'ignorer compte tenu des circonstances, étant exclu que la seule publication des statuts suffise à constituer cette preuve.
Les dispositions des statuts limitant les pouvoirs du directoire sont inopposables aux tiers.
Le directoire délibère et prend ses décisions dans les conditions fixées par les statuts.
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Article L225-65
Le déplacement du siège social dans le même département ou dans un département limitrophe peut être décidé par le conseil de surveillance, sous réserve de ratification de cette décision par la prochaine assemblée générale ordinaire.
Article L225-66
Le président du directoire ou, le cas échéant, le directeur général unique représente la société dans ses rapports avec les tiers.
Toutefois, les statuts peuvent habiliter le conseil de surveillance à attribuer le même pouvoir de représentation à un ou plusieurs autres membres du directoire, qui portent alors le titre de directeur général.
Les dispositions des statuts limitant le pouvoir de représentation de la société sont inopposables aux tiers.
Article L225-67
Une personne physique ne peut exercer plus d'un mandat de membre du directoire ou de directeur général unique de sociétés anonymes ayant leur siège social sur le territoire français.
Par dérogation aux dispositions du premier alinéa :
- un deuxième mandat de membre du directoire ou de directeur général unique ou un mandat de directeur général peut être exercé dans une société contrôlée au sens de l'article L. 233-16 par la société dont cette personne est membre du directoire ou directeur général unique ;
- une personne physique exerçant un mandat de membre du directoire ou de directeur général unique dans une société peut également exercer un mandat de directeur général, de membre du directoire ou de directeur général unique dans une société, dès lors que les titres de celles-ci ne sont pas admis aux négociations sur un marché réglementé.
Toute personne physique qui se trouve en infraction avec les dispositions du présent article doit se démettre de l'un de ses mandats dans les trois mois de sa nomination, ou du mandat en cause dans les trois mois de l'événement ayant entraîné la disparition de l'une des conditions fixées à l'alinéa précédent. A l'expiration de ce délai, elle est réputée s'être démise, selon le cas, soit de son nouveau mandat, soit du mandat ne répondant plus aux conditions fixées à l'alinéa précédent, et doit restituer les rémunérations perçues, sans que soit, de ce fait, remise en cause la validité des délibérations auxquelles elle a pris part.
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Article L225-68
Le conseil de surveillance exerce le contrôle permanent de la gestion de la société par le directoire.
Les statuts peuvent subordonner à l'autorisation préalable du conseil de surveillance la conclusion des opérations qu'ils énumèrent. Toutefois, la cession d'immeubles par nature, la cession totale ou partielle de participations, la constitution de sûretés, ainsi que les cautions, avals et garanties, sauf dans les sociétés exploitant un établissement bancaire ou financier, font l'objet d'une autorisation du conseil de surveillance dans des conditions déterminées par décret en Conseil d'Etat. Ce décret détermine également les conditions dans lesquelles le dépassement de cette autorisation peut être opposé aux tiers.
A toute époque de l'année, le conseil de surveillance opère les vérifications et les contrôles qu'il juge opportuns et peut se faire communiquer les documents qu'il estime nécessaires à l'accomplissement de sa mission.
Une fois par trimestre au moins le directoire présente un rapport au conseil de surveillance.
Après la clôture de chaque exercice et dans le délai fixé par décret en Conseil d'Etat, le directoire lui présente, aux fins de vérification et de contrôle, les documents visés au deuxième alinéa de l'article L. 225-100.
Le conseil de surveillance présente à l'assemblée générale prévue à l'article L. 225-100 ses observations sur le rapport du directoire ainsi que sur les comptes de l'exercice.
Dans les sociétés dont les titres financiers sont admis aux négociations sur un marché réglementé, le président du conseil de surveillance rend compte, dans un rapport joint au rapport mentionné à l'alinéa précédent et aux articles L. 225-102, L. 225-102-1 et L. 233-26, de la composition, des conditions de préparation et d'organisation des travaux du conseil, ainsi que des procédures de contrôle interne et de gestion des risques mises en place par la société, en détaillant notamment celles de ces procédures qui sont relatives à l'élaboration et au traitement de l'information comptable et financière pour les comptes sociaux et, le cas échéant, pour les comptes consolidés. Lorsqu'une société se réfère volontairement à un code de gouvernement d'entreprise élaboré par les organisations représentatives des entreprises, le rapport prévu au septième alinéa du présent article précise également les dispositions qui ont été écartées et les raisons pour lesquelles elles l'ont été. Se trouve de surcroît précisé le lieu où ce code peut être consulté. Si une société ne se réfère pas à un tel code de gouvernement d'entreprise, ce rapport indique les règles retenues en complément des exigences requises par la loi et explique les raisons pour lesquelles la société a décidé de n'appliquer aucune disposition de ce code de gouvernement d'entreprise. Le rapport prévu au septième alinéa précise aussi les modalités particulières relatives à la participation des actionnaires à l'assemblée générale ou renvoie aux dispositions des statuts qui prévoient ces modalités. Ce rapport présente en outre les principes et les règles arrêtés par le conseil de surveillance pour déterminer les rémunérations et avantages de toute nature accordés aux mandataires sociaux et il mentionne la publication des informations prévues par l'article L. 225-100-3. Le rapport prévu au septième alinéa du présent article est approuvé par le conseil de surveillance et est rendu public.
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Article L225-69
Le conseil de surveillance est composé de trois membres au moins. Les statuts fixent le nombre maximum des membres du conseil, qui est limité à dix-huit.
Article L225-70
Les statuts doivent prévoir pour l'exercice des fonctions de membre du conseil de surveillance une limite d'âge s'appliquant soit à l'ensemble des membres du conseil de surveillance, soit à un pourcentage déterminé d'entre eux.
A défaut de disposition expresse dans les statuts, le nombre des membres du conseil de surveillance ayant atteint l'âge de soixante-dix ans ne peut être supérieur au tiers des membres du conseil de surveillance en fonctions.
Toute nomination intervenue en violation des dispositions prévues à l'alinéa précédent est nulle.
A défaut de disposition expresse dans les statuts prévoyant une autre procédure, lorsque la limitation statutaire ou légale fixée pour l'âge des membres du conseil de surveillance est dépassée, le membre du conseil de surveillance le plus âgé est réputé démissionnaire d'office.
Article L225-71
Dans les sociétés dont les titres sont admis aux négociations sur un marché réglementé, lorsque le rapport présenté par le directoire lors de l'assemblée générale en application de l'article L. 225-102 établit que les actions détenues par le personnel de la société ainsi que par le personnel de sociétés qui lui sont liées au sens de l'article L. 225-180 représentent plus de 3 % du capital social de la société, un ou plusieurs membres du conseil de surveillance sont élus par l'assemblée générale des actionnaires sur proposition des actionnaires visés à l'article L. 225-102. Ceux-ci se prononcent par un vote dans des conditions fixées par les statuts. Ces membres sont élus parmi les salariés actionnaires ou, le cas échéant, parmi les salariés membres du conseil de surveillance d'un fonds commun de placement d'entreprise détenant des actions de la société. Ces membres ne sont pas pris en compte pour la détermination du nombre minimal et du nombre maximal de membres du conseil de surveillance prévus à l'article L. 225-69. La durée de leur mandat est déterminée par application de l'article L. 225-18. Toutefois, leur mandat prend fin par l'arrivée du terme ou la rupture, pour quelque cause que ce soit, de leur contrat de travail.
Si l'assemblée générale extraordinaire ne s'est pas réunie dans un délai de dix-huit mois à compter de la présentation du rapport, tout salarié actionnaire peut demander au président du tribunal statuant en référé d'enjoindre sous astreinte au directoire de convoquer une assemblée générale extraordinaire et de soumettre à celle-ci les projets de résolutions tendant à modifier les statuts dans le sens prévu à l'alinéa précédent et au dernier alinéa du présent article.
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Lorsqu'il est fait droit à la demande, l'astreinte et les frais de procédure sont à la charge des membres du directoire.
Les sociétés dont le conseil de surveillance comprend un ou plusieurs membres nommés parmi les membres des conseils de surveillance des fonds communs de placement d'entreprise représentant les salariés, ou un ou plusieurs salariés élus en application des dispositions de l'article L. 225-79, ne sont pas tenues aux obligations prévues au premier alinéa.
Lorsque l'assemblée générale extraordinaire est convoquée en application du premier alinéa, elle se prononce également sur un projet de résolution prévoyant l'élection d'un ou plusieurs membres du conseil de surveillance par le personnel de la société et des filiales directes ou indirectes dont le siège social est fixé en France. Le cas échéant, ces représentants sont désignés dans les conditions prévues à l'article L. 225-79.
Article L225-72
Les statuts peuvent imposer que chaque membre du conseil de surveillance soit propriétaire d'un nombre d'actions de la société, qu'ils déterminent.
Si, au jour de sa nomination, un membre du conseil de surveillance n'est pas propriétaire du nombre d'actions requis ou si, en cours de mandat, il cesse d'en être propriétaire, il est réputé démissionnaire d'office, s'il n'a pas régularisé sa situation dans le délai de six mois.
Les dispositions du premier alinéa ne s'appliquent pas aux actionnaires salariés nommés membres du conseil de surveillance en application de l'article L. 225-71.
Article L225-73
Les commissaires aux comptes veillent, sous leur responsabilité, à l'observation des dispositions prévues à l'article L. 225-72 et en dénoncent toute violation dans leur rapport à l'assemblée générale annuelle.
Article L225-74
Aucun membre du conseil de surveillance ne peut faire partie du directoire.
Article L225-75
Les membres du conseil de surveillance sont nommés par l'assemblée générale constitutive ou par
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l'assemblée générale ordinaire. Dans le cas prévu à l'article L. 225-16, ils sont désignés dans les statuts. La durée de leurs fonctions est déterminée par les statuts, sans pouvoir excéder six ans en cas de nomination par les assemblées générales et trois ans en cas de nomination dans les statuts. Toutefois, en cas de fusion ou de scission, la nomination peut être faite par l'assemblée générale extraordinaire.
Ils sont rééligibles, sauf stipulation contraire des statuts. Ils peuvent être révoqués à tout moment par l'assemblée générale ordinaire.
Toute nomination intervenue en violation des dispositions précédentes est nulle à l'exception de celles auxquelles il peut être procédé dans les conditions prévues à l'article L. 225-78.
Article L225-76
Une personne morale peut être nommée au conseil de surveillance. Lors de sa nomination, elle est tenue de désigner un représentant permanent qui est soumis aux mêmes conditions et obligations et qui encourt les mêmes responsabilités civile et pénale que s'il était membre du conseil en son nom propre, sans préjudice de la responsabilité solidaire de la personne morale qu'il représente.
Lorsque la personne morale révoque son représentant, elle est tenue de pourvoir en même temps à son remplacement.
Article L225-77
Une personne physique ne peut exercer simultanément plus de cinq mandats de membre de conseil de surveillance de sociétés anonymes ayant leur siège social sur le territoire français.
Par dérogation aux dispositions du premier alinéa, ne sont pas pris en compte les mandats de membre du conseil de surveillance ou d'administrateur exercés par cette personne dans les sociétés contrôlées au sens de l'article L. 233-16 par la société dont elle est déjà membre du conseil de surveillance.
Pour l'application des dispositions du présent article, les mandats de membre du conseil de surveillance des sociétés dont les titres ne sont pas admis aux négociations sur un marché réglementé et contrôlées au sens de l'article L. 233-16 par une même société ne comptent que pour un seul mandat, sous réserve que le nombre de mandats détenus à ce titre n'excède pas cinq.
Toute personne physique qui se trouve en infraction avec les dispositions du présent article doit se démettre de l'un de ses mandats dans les trois mois de sa nomination, ou du mandat en cause dans les trois mois de l'événement ayant entraîné la disparition de l'une des conditions fixées à l'alinéa précédent. A l'expiration de ce délai, elle est réputée s'être démise, selon le cas, soit de son nouveau mandat, soit du mandat ne répondant plus aux conditions fixées à l'alinéa précédent, et doit restituer les rémunérations perçues, sans que soit, de ce fait, remise en cause la validité des délibérations auxquelles elle a pris part.
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Article L225-78
En cas de vacance par décès ou par démission d'un ou plusieurs sièges de membre du conseil de surveillance, ce conseil peut, entre deux assemblées générales, procéder à des nominations à titre provisoire.
Lorsque le nombre des membres du conseil de surveillance est devenu inférieur au minimum légal, le directoire doit convoquer immédiatement l'assemblée générale ordinaire en vue de compléter l'effectif du conseil de surveillance.
Lorsque le nombre des membres du conseil de surveillance est devenu inférieur au minimum statutaire sans toutefois être inférieur au minimum légal, le conseil de surveillance doit procéder à des nominations à titre provisoire en vue de compléter son effectif dans le délai de trois mois à compter du jour où se produit la vacance.
Les nominations effectuées par le conseil, en vertu des premier et troisième alinéas ci-dessus, sont soumises à ratification de la prochaine assemblée générale ordinaire. A défaut de ratification, les délibérations prises et les actes accomplis antérieurement par le conseil n'en demeurent pas moins valables.
Lorsque le conseil néglige de procéder aux nominations requises ou si l'assemblée n'est pas convoquée, tout intéressé peut demander en justice la désignation d'un mandataire chargé de convoquer l'assemblée générale, à l'effet de procéder aux nominations ou de ratifier les nominations prévues au troisième alinéa.
Article L225-79
Il peut être stipulé dans les statuts que le conseil de surveillance comprend, outre les membres dont le nombre et le mode de désignation sont prévus aux articles L. 225-69 et L. 225-75, des membres élus soit par le personnel de la société, soit par le personnel de la société et celui de ses filiales directes ou indirectes dont le siège social est fixé sur le territoire français.
Le nombre des membres du conseil de surveillance élus par les salariés ne peut être supérieur à quatre ni excéder le tiers du nombre des autres membres. Lorsque le nombre des membres élus par les salariés est égal ou supérieur à deux, les ingénieurs, cadres et assimilés ont un siège au moins.
Les membres du conseil de surveillance élus par les salariés ne sont pas pris en compte pour la détermination du nombre minimal et du nombre maximal de membres prévus à l'article L. 225-69.
Article L225-79-1
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Dans les sociétés dont les titres sont admis aux négociations sur un marché réglementé, en cas de nomination aux fonctions de membre du directoire d'une personne liée par un contrat de travail à la société ou à toute société contrôlée ou qui la contrôle au sens des II et III de l'article L. 233-16, les dispositions dudit contrat correspondant, le cas échéant, à des éléments de rémunération, des indemnités ou des avantages dus ou susceptibles d'être dus à raison de la cessation ou du changement de ces fonctions, ou postérieurement à celles-ci, sont soumises au régime prévu par l'article L. 225-90-1.
Article L225-80
Les conditions relatives à l'éligibilité, à l'électorat, à la composition des collèges, aux modalités du scrutin, aux contestations, à la durée et aux conditions d'exercice du mandat, à la révocation, à la protection du contrat de travail et au remplacement des membres du conseil de surveillance élus par les salariés sont fixées selon les règles définies aux articles L. 225-28 à L. 225-34.
Article L225-81
Le conseil de surveillance élit en son sein un président et un vice-président qui sont chargés de convoquer le conseil et d'en diriger les débats. Il détermine, s'il l'entend, leur rémunération.
A peine de nullité de leur nomination, le président et le vice-président du conseil de surveillance sont des personnes physiques. Ils exercent leurs fonctions pendant la durée du mandat du conseil de surveillance.
Article L225-82
Le conseil de surveillance ne délibère valablement que si la moitié au moins de ses membres sont présents.
A moins que les statuts ne prévoient une majorité plus forte, les décisions sont prises à la majorité des membres présents ou représentés.
Sauf lorsque le conseil est réuni pour procéder aux opérations visées au cinquième alinéa de l'article L. 225-68 et sauf disposition contraire des statuts, le règlement intérieur peut prévoir que sont réputés présents, pour le calcul du quorum et de la majorité, des membres du conseil de surveillance qui participent à la réunion par des moyens de visioconférence ou de télécommunication permettant leur identification et garantissant leur participation effective, dont la nature et les conditions d'application sont déterminées par décret en Conseil d'Etat. Les statuts peuvent limiter la nature des décisions pouvant être prises lors d'une réunion tenue dans ces conditions et prévoir un droit d'opposition au profit d'un nombre déterminé de membres du conseil de surveillance.
Sauf disposition contraire des statuts, la voix du président de séance est prépondérante en cas de
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partage.
Article L225-83
L'assemblée générale peut allouer aux membres du conseil de surveillance, en rémunération de leur activité, à titre de jetons de présence, une somme fixe annuelle que cette assemblée détermine sans être liée par des dispositions statutaires ou des décisions antérieures. Le montant de celle-ci est porté aux charges d'exploitation. Sa répartition entre les membres du conseil de surveillance est déterminée par ce dernier.
Article L225-84
Il peut être alloué, par le conseil de surveillance, des rémunérations exceptionnelles pour les missions ou mandats confiés à des membres de ce conseil. Dans ce cas, ces rémunérations, portées aux charges d'exploitation, sont soumises aux dispositions des articles L. 225-86 à L. 225-90.
Article L225-85
Les membres du conseil de surveillance ne peuvent recevoir de la société aucune rémunération, permanente ou non, autre que celles qui sont prévues aux articles L. 225-81, L. 225-83 et L. 225-84 et, le cas échéant, celles dues au titre d'un contrat de travail correspondant à un emploi effectif.
Le nombre des membres du conseil de surveillance liés à la société par un contrat de travail ne peut dépasser le tiers des membres en fonctions. Toutefois, les membres du conseil de surveillance élus conformément aux articles L. 225-79 et L. 225-80 et ceux nommés conformément aux dispositions de l'article L. 225-71 ne sont pas comptés pour la détermination de ce nombre.
Toute clause statutaire contraire est réputée non écrite et toute décision contraire est nulle.
Article L225-86
Toute convention intervenant directement ou par personne interposée entre la société et l'un des membres du directoire ou du conseil de surveillance, un actionnaire disposant d'une fraction des droits de vote supérieure à 10 % ou, s'il s'agit d'une société actionnaire, la société la contrôlant au sens de l'article L. 233-3 doit être soumise à l'autorisation préalable du conseil de surveillance.
Il en est de même des conventions auxquelles une des personnes visées à l'alinéa précédent est indirectement intéressée.
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Sont également soumises à autorisation préalable les conventions intervenant entre la société et une entreprise, si l'un des membres du directoire ou du conseil de surveillance de la société est propriétaire, associé indéfiniment responsable, gérant, administrateur, membre du conseil de surveillance ou, de façon générale, dirigeant de cette entreprise.
Article L225-87
Les dispositions de l'article L. 225-86 ne sont pas applicables aux conventions portant sur des opérations courantes et conclues à des conditions normales.
Toutefois, ces conventions, sauf lorsqu'en raison de leur objet ou de leurs implications financières, elles ne sont significatives pour aucune des parties, sont communiquées par l'intéressé au président du conseil de surveillance. La liste et l'objet en sont communiqués par le président aux membres du conseil de surveillance et aux commissaires aux comptes.
Article L225-88
L'intéressé est tenu d'informer le conseil de surveillance dès qu'il a connaissance d'une convention à laquelle l'article L. 225-86 est applicable. S'il siège au conseil de surveillance, il ne peut prendre part au vote sur l'autorisation sollicitée.
Le président du conseil de surveillance donne avis aux commissaires aux comptes de toutes les conventions autorisées et soumet celles-ci à l'approbation de l'assemblée générale.
Les commissaires aux comptes présentent, sur ces conventions, un rapport spécial à l'assemblée, qui statue sur ce rapport.
L'intéressé ne peut pas prendre part au vote et ses actions ne sont pas prises en compte pour le calcul du quorum et de la majorité.
Article L225-89
Les conventions approuvées par l'assemblée, comme celles qu'elle désapprouve, produisent leurs effets à l'égard des tiers, sauf lorsqu'elles sont annulées dans le cas de fraude.
Même en l'absence de fraude, les conséquences, préjudiciables à la société, des conventions désapprouvées peuvent être mises à la charge de l'interessé et, éventuellement, des autres membres du directoire.
Article L225-90
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Sans préjudice de la responsabilité de l'intéressé, les conventions visées à l'article L. 225-86 et conclues sans autorisation préalable du conseil de surveillance peuvent être annulées si elles ont eu des conséquences dommageables pour la société.
L'action en nullité se prescrit par trois ans à compter de la date de la convention. Toutefois, si la convention a été dissimulée, le point de départ du délai de prescription est reporté au jour où elle a été révélée.
La nullité peut être couverte par un vote de l'assemblée générale intervenant sur rapport spécial des commissaires aux comptes exposant les circonstances en raison desquelles la procédure d'autorisation n'a pas été suivie. Le quatrième alinéa de l'article L. 225-88 est applicable.
Article L225-90-1
Dans les sociétés dont les titres sont admis aux négociations sur un marché réglementé, les engagements pris au bénéfice d'un membre du directoire, par la société elle-même ou par toute société contrôlée ou qui la contrôle au sens des II et III de l'article L. 233-16, et correspondant à des éléments de rémunération, des indemnités ou des avantages dus ou susceptibles d'être dus à raison de la cessation ou du changement de ces fonctions, ou postérieurement à celles-ci, sont soumis aux dispositions des articles L. 225-86 et L. 225-88 à L. 225-90.
Sont interdits les éléments de rémunération, indemnités et avantages dont le bénéfice n'est pas subordonné au respect de conditions liées aux performances du bénéficiaire, appréciées au regard de celles de la société dont il est membre du directoire.
L'autorisation donnée par le conseil de surveillance en application de l'article L. 225-86 est rendue publique selon des modalités et dans des délais fixés par décret en Conseil d'Etat.
La soumission à l'approbation de l'assemblée générale en application de l'article L. 225-88 fait l'objet d'une résolution spécifique pour chaque bénéficiaire. Cette approbation est requise à chaque renouvellement du mandat exercé par les personnes mentionnées au premier alinéa.
Aucun versement, de quelque nature que ce soit, ne peut intervenir avant que le conseil de surveillance ne constate, lors ou après la cessation ou le changement effectif des fonctions, le respect des conditions prévues. Cette décision est rendue publique selon des modalités et dans des délais fixés par décret en Conseil d'Etat. Tout versement effectué en méconnaissance des dispositions du présent alinéa est nul de plein droit.
Les engagements correspondant à des indemnités en contrepartie d'une clause interdisant au bénéficiaire, après la cessation de ses fonctions dans la société, l'exercice d'une activité professionnelle concurrente portant atteinte aux intérêts de la société ne sont soumis qu'aux dispositions du premier alinéa. Il en va de même des engagements de retraite à prestations définies répondant aux caractéristiques des régimes mentionnés à l'article L. 137-11 du code de la sécurité sociale, ainsi que des engagements répondant aux caractéristiques des régimes collectifs et obligatoires de retraite et de prévoyance visés à l'article L. 242-1 du même code.
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Article L225-91
A peine de nullité du contrat, il est interdit aux membres du directoire et aux membres du conseil de surveillance autres que les personnes morales, de contracter, sous quelque forme que ce soit, des emprunts auprès de la société, de se faire consentir par elle un découvert, en compte courant ou autrement, ainsi que de faire cautionner ou avaliser par elle leurs engagements envers les tiers.
L'interdiction s'applique aux représentants permanents des personnes morales membres du conseil de surveillance. Elle s'applique également aux conjoint, ascendants et descendants des personnes visées au présent article, ainsi qu'à toute personne interposée.
Toutefois, si la société exploite un établissement bancaire ou financier, l'interdiction ne s'applique pas aux opérations courantes de ce commerce conclues à des conditions normales.
Article L225-92
Les membres du directoire et du conseil de surveillance, ainsi que toute personne appelée à assister aux réunions de ces organes, sont tenus à la discrétion à l'égard des informations présentant un caractère confidentiel et données comme telles par le président.
Article L225-93
En cas d'ouverture d'une procédure de redressement ou de liquidation judiciaire, en application du titre II du livre VI, les personnes visées par ces dispositions peuvent être rendues responsables du passif social et sont soumises aux interdictions et déchéances, dans les conditions prévues par lesdites dispositions.
Sous-section 3 : Dispositions communes aux mandataires sociaux des sociétés anonymes.
Article L225-94
La limitation du nombre de sièges d'administrateur ou de membre du conseil de surveillance qui peuvent être occupés simultanément par une même personne physique, en vertu des articles L. 225-21 et L. 225-77, est applicable au cumul de sièges d'administrateur et de membre du conseil de surveillance.
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Pour l'application des articles L. 225-54-1 et L. 225-67, est autorisé l'exercice simultané de la direction générale par une personne physique dans une société et dans une autre société qu'elle contrôle au sens de l'article L. 233-16.
Article L225-94-1
Sans préjudice des dispositions des articles L. 225-21, L. 225-54-1, L. 225-67, L. 225-77 et L. 225-94, une personne physique ne peut exercer simultanément plus de cinq mandats de directeur général, de membre du directoire, de directeur général unique, d'administrateur ou de membre du conseil de surveillance de sociétés anonymes ayant leur siège sur le territoire français. Pour l'application de ces dispositions, l'exercice de la direction générale par un administrateur est décompté pour un seul mandat.
Par dérogation aux dispositions ci-dessus, ne sont pas pris en compte les mandats d'administrateur ou de membre de conseil de surveillance dans les sociétés qui sont contrôlées, au sens de l'article L. 233-16, par la société dans laquelle est exercé un mandat au titre du premier alinéa. (1)
Toute personne physique qui se trouve en infraction avec les dispositions du présent article doit se démettre de l'un de ses mandats dans les trois mois de sa nomination, ou du mandat en cause dans les trois mois de l'événement ayant entraîné la disparition de l'une des conditions fixées à l'alinéa précédent. A l'expiration de ce délai, elle est réputée s'être démise, selon le cas, soit de son nouveau mandat, soit du mandat ne répondant plus aux conditions fixées à l'alinéa précédent, et doit restituer les rémunérations perçues, sans que soit, de ce fait, remise en cause la validité des délibérations auxquelles elle a pris part.
Article L225-95
En cas de fusion de sociétés anonymes, le nombre de membres du conseil d'administration ou du conseil de surveillance, selon le cas, peut dépasser le nombre de dix-huit, prévu aux articles L. 225-17 et L. 225-69, pendant un délai de trois ans à compter de la date de la fusion fixée à l'article L. 236-4, sans pouvoir être supérieur à vingt-quatre.
Article L225-95-1
Par dérogation aux dispositions des articles L. 225-21, L. 225-77 et L. 225-94-1, ne sont pas pris en compte les mandats de représentant permanent d'une société de capital-risque mentionnée à l'article 1er de la loi n° 85-695 du 11 juillet 1985 portant diverses dispositions d'ordre économique et financier, d'une société financière d'innovation mentionnée au III (B) de l'article 4 de la loi n° 72-650 du 11 juillet 1972 portant diverses dispositions d'ordre économique et financier ou d'une société de gestion habilitée à gérer les fonds communs de placement régis par les articles L. 214-36 et L. 214-41 du code monétaire et financier.
Dès lors que les conditions prévues au présent article ne sont plus remplies, toute personne
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physique doit se démettre des mandats ne répondant pas aux dispositions des articles L. 225-21, L. 225-77 et L. 225-94-1 dans un délai de trois mois. A l'expiration de ce délai, elle est réputée ne plus représenter la personne morale, et doit restituer les rémunérations perçues, sans que soit, de ce fait, remise en cause la validité des délibérations auxquelles elle a pris part.
Par dérogation aux articles L. 225-21, L. 225-54-1, L. 225-67 et L. 225-94-1, les mandats de président, de directeur général, de directeur général unique, de membre du directoire ou d'administrateur d'une société d'économie mixte locale, exercés par un représentant d'une collectivité territoriale ou d'un groupement de collectivités territoriales ne sont pas pris en compte pour l'application des règles relatives au cumul des mandats sociaux.
Section 3 : Des assemblées d'actionnaires.
Article L225-96
L'assemblée générale extraordinaire est seule habilitée à modifier les statuts dans toutes leurs dispositions. Toute clause contraire est réputée non écrite. Elle ne peut, toutefois, augmenter les engagements des actionnaires, sous réserve des opérations résultant d'un regroupement d'actions régulièrement effectué.
Elle ne délibère valablement que si les actionnaires présents ou représentés possèdent au moins, sur première convocation, le quart et, sur deuxième convocation, le cinquième des actions ayant le droit de vote. A défaut, la deuxième assemblée peut être prorogée à une date postérieure de deux mois au plus à celle à laquelle elle avait été convoquée. Dans les sociétés dont les actions ne sont pas admises aux négociations sur un marché réglementé, les statuts peuvent prévoir des quorums plus élevés.
Elle statue à la majorité des deux tiers des voix dont disposent les actionnaires présents ou représentés.
Article L225-97
L'assemblée générale extraordinaire peut changer la nationalité de la société, à condition que le pays d'accueil ait conclu avec la France une convention spéciale permettant d'acquérir sa nationalité et de transférer le siège social sur son territoire, et conservant à la société sa personnalité juridique.
Article L225-98
L'assemblée générale ordinaire prend toutes les décisions autres que celles visées aux articles L. 225-96 et L. 225-97.
Elle ne délibère valablement sur première convocation que si les actionnaires présents ou représentés possèdent au moins le cinquième des actions ayant le droit de vote. Dans les sociétés
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dont les actions ne sont pas admises aux négociations sur un marché réglementé, les statuts peuvent prévoir un quorum plus élevé. Sur deuxième convocation, aucun quorum n'est requis.
Elle statue à la majorité des voix dont disposent les actionnaires présents ou représentés.
Article L225-99
Les assemblées spéciales réunissent les titulaires d'actions d'une catégorie déterminée.
La décision d'une assemblée générale de modifier les droits relatifs à une catégorie d'actions n'est définitive qu'après approbation par l'assemblée spéciale des actionnaires de cette catégorie.
Les assemblées spéciales ne délibèrent valablement que si les actionnaires présents ou représentés possèdent au moins, sur première convocation, le tiers et, sur deuxième convocation, le cinquième des actions ayant le droit de vote et dont il est envisagé de modifier les droits.A défaut, la deuxième assemblée peut être prorogée à une date postérieure de deux mois au plus à celle à laquelle elle avait été convoquée. Dans les sociétés dont les actions ne sont pas admises aux négociations sur un marché réglementé, les statuts peuvent prévoir des quorums plus élevés.
Elles statuent dans les conditions prévues au troisième alinéa de l'article L. 225-96.
Article L225-100
L'assemblée générale ordinaire est réunie au moins une fois par an, dans les six mois de la clôture de l'exercice, sous réserve de prolongation de ce délai par décision de justice.
Le conseil d'administration ou le directoire présente à l'assemblée son rapport ainsi que les comptes annuels et, le cas échéant, les comptes consolidés accompagnés du rapport de gestion y afférent.
Ce rapport comprend une analyse objective et exhaustive de l'évolution des affaires, des résultats et de la situation financière de la société, notamment de sa situation d'endettement, au regard du volume et de la complexité des affaires. Dans la mesure nécessaire à la compréhension de l'évolution des affaires, des résultats ou de la situation de la société et indépendamment des indicateurs clés de performance de nature financière devant être insérés dans le rapport en vertu d'autres dispositions du présent code, l'analyse comporte le cas échéant des indicateurs clés de performance de nature non financière ayant trait à l'activité spécifique de la société, notamment des informations relatives aux questions d'environnement et de personnel.
Le rapport comporte également une description des principaux risques et incertitudes auxquels la société est confrontée.
L'analyse mentionnée au troisième alinéa contient, le cas échéant, des renvois aux montants indiqués dans les comptes annuels et des explications supplémentaires y afférentes.
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Le rapport comporte en outre des indications sur l'utilisation des instruments financiers par l'entreprise, lorsque cela est pertinent pour l'évaluation de son actif, de son passif, de sa situation financière et de ses pertes ou profits. Ces indications portent sur les objectifs et la politique de la société en matière de gestion des risques financiers, y compris sa politique concernant la couverture de chaque catégorie principale de transactions prévues pour lesquelles il est fait usage de la comptabilité de couverture. Elles portent également sur l'exposition de la société aux risques de prix, de crédit, de liquidité et de trésorerie.
Est joint à ce rapport un tableau récapitulatif des délégations en cours de validité accordées par l'assemblée générale des actionnaires au conseil d'administration ou au directoire dans le domaine des augmentations de capital, par application des articles L. 225-129-1 et L. 225-129-2. Le tableau fait apparaître l'utilisation faite de ces délégations au cours de l'exercice.
Les commissaires aux comptes relatent, dans leur rapport, l'accomplissement de la mission qui leur est dévolue par les articles L. 823-9, L. 823-10 et L. 823-11.
L'assemblée délibère et statue sur toutes les questions relatives aux comptes annuels et, le cas échéant, aux comptes consolidés de l'exercice écoulé.
Elle exerce les pouvoirs qui lui sont attribués notamment par l'article L. 225-18, le quatrième alinéa de l'article L. 225-24, le troisième alinéa de l'article L. 225-40, le troisième alinéa de l'article L. 225-42 et par l'article L. 225-45 ou, le cas échéant, par l'article L. 225-75, le quatrième alinéa de l'article L. 225-78, l'article L. 225-83, le troisième alinéa de l'article L. 225-88 et le troisième alinéa de l'article L. 225-90.
Article L225-100-1
Les troisième à sixième alinéas de l'article L. 225-100 ne s'appliquent pas aux sociétés qui ne dépassent pas à la clôture de l'exercice des chiffres fixés par décret pour deux des critères suivants : le total de leur bilan, le montant net de leur chiffre d'affaires ou le nombre moyen de salariés permanents employés au cours de l'exercice. Le présent alinéa ne s'applique pas aux sociétés dont des instruments financiers mentionnés au 1 ou au 2 du II de l'article L. 211-1 du code monétaire et financier sont admis à la négociation sur un marché réglementé.
Ne sont pas tenues de fournir les informations de nature non financière mentionnées à la dernière phrase du troisième alinéa de l'article L. 225-100 les sociétés qui ne dépassent pas à la clôture de l'exercice des chiffres fixés par décret pour deux des critères suivants : le total de leur bilan, le montant net de leur chiffre d'affaires ou le nombre moyen de salariés permanents employés au cours de l'exercice. Le présent alinéa ne s'applique pas aux sociétés dont des instruments financiers mentionnés au 1 ou au 2 du II de l'article L. 211-1 du code monétaire et financier sont admis à la négociation sur un marché réglementé.
Article L225-100-2
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Lorsque la société établit des comptes consolidés en application de l'article L. 233-16, le rapport consolidé de gestion comprend une analyse objective et exhaustive de l'évolution des affaires, des résultats et de la situation financière de l'ensemble des entreprises comprises dans la consolidation, notamment de leur situation d'endettement, au regard du volume et de la complexité des affaires. Dans la mesure nécessaire à la compréhension de l'évolution des affaires, des résultats ou de la situation des entreprises, l'analyse comporte des indicateurs clés de performance de nature tant financière que, le cas échéant, non financière ayant trait à l'activité spécifique des entreprises, notamment des informations relatives aux questions d'environnement et de personnel.
Le rapport comporte également une description des principaux risques et incertitudes auxquels l'ensemble des entreprises comprises dans la consolidation est confronté.
L'analyse mentionnée au premier alinéa contient, le cas échéant, des renvois aux montants indiqués dans les comptes consolidés et des explications supplémentaires y afférentes.
Le rapport comporte en outre des indications sur l'utilisation des instruments financiers par l'entreprise, lorsque cela est pertinent pour l'évaluation de son actif, de son passif, de sa situation financière et de ses pertes ou profits. Ces indications portent sur les objectifs et la politique de la société en matière de gestion des risques financiers, y compris sa politique concernant la couverture de chaque catégorie principale de transactions prévues pour lesquelles il est fait usage de la comptabilité de couverture. Elles portent également sur l'exposition de la société aux risques de prix, de crédit, de liquidité et de trésorerie.
Article L225-100-3
Pour les sociétés dont des titres sont admis aux négociations sur un marché réglementé, le rapport visé à l'article L. 225-100 expose et, le cas échéant, explique les éléments suivants lorsqu'ils sont susceptibles d'avoir une incidence en cas d'offre publique :
1° La structure du capital de la société ;
2° Les restrictions statutaires à l'exercice des droits de vote et aux transferts d'actions ou les clauses des conventions portées à la connaissance de la société en application de l'article L. 233-11 ;
3° Les participations directes ou indirectes dans le capital de la société dont elle a connaissance en vertu des articles L. 233-7 et L. 233-12 ;
4° La liste des détenteurs de tout titre comportant des droits de contrôle spéciaux et la description de ceux-ci ;
5° Les mécanismes de contrôle prévus dans un éventuel système d'actionnariat du personnel, quand les droits de contrôle ne sont pas exercés par ce dernier ;
6° Les accords entre actionnaires dont la société a connaissance et qui peuvent entraîner des
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restrictions au transfert d'actions et à l'exercice des droits de vote ;
7° Les règles applicables à la nomination et au remplacement des membres du conseil d'administration ou du directoire ainsi qu'à la modification des statuts de la société ;
8° Les pouvoirs du conseil d'administration ou du directoire, en particulier l'émission ou le rachat d'actions ;
9° Les accords conclus par la société qui sont modifiés ou prennent fin en cas de changement de contrôle de la société, sauf si cette divulgation, hors les cas d'obligation légale de divulgation, porterait gravement atteinte à ses intérêts ;
10° Les accords prévoyant des indemnités pour les membres du conseil d'administration ou du directoire ou les salariés, s'ils démissionnent ou sont licenciés sans cause réelle et sérieuse ou si leur emploi prend fin en raison d'une offre publique.
Article L225-101
Lorsque la société, dans les deux ans suivant son immatriculation, acquiert un bien appartenant à un actionnaire et dont la valeur est au moins égale à un dixième du capital social, un commissaire, chargé d'apprécier, sous sa responsabilité, la valeur de ce bien, est désigné par décision de justice, à la demande du président du conseil d'administration ou du directoire, selon le cas. Ce commissaire est soumis aux incompatibilités prévues à l'article L. 225-224.
Le rapport du commissaire est mis à la disposition des actionnaires. L'assemblée générale ordinaire statue sur l'évaluation du bien, à peine de nullité de l'acquisition. Le vendeur n'a voix délibérative ni pour lui-même ni comme mandataire.
Les dispositions du présent article ne sont pas applicables lorsque l'acquisition est faite en bourse, sous le contrôle d'une autorité judiciaire ou dans le cadre des opérations courantes de la société et conclues à des conditions normales.
Article L225-102
Le rapport présenté par le conseil d'administration ou le directoire, selon le cas, à l'assemblée générale rend compte annuellement de l'état de la participation des salariés au capital social au dernier jour de l'exercice et établit la proportion du capital que représentent les actions détenues par le personnel de la société et par le personnel des sociétés qui lui sont liées au sens de l'article L. 225-180 dans le cadre du plan d'épargne d'entreprise prévu par les articles L. 443-1 à L. 443-9 du code du travail et par les salariés et anciens salariés dans le cadre des fonds communs de placement d'entreprise régis par le chapitre III de la loi n° 88-1201 du 23 décembre 1988 relative aux organismes de placement collectif en valeurs mobilières et portant création des fonds communs de créances. Sont également prises en compte les actions détenues directement par les salariés durant les périodes d'incessibilité prévues aux articles L. 225-194 et L. 225-197, à l'article 11 de la loi n°
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86-912 du 6 août 1986 relative aux modalités des privatisations et à l'article L. 442-7 du code du travail.
Les titres acquis par les salariés dans le cadre d'une opération de rachat d'une entreprise par ses salariés prévue par la loi n° 84-578 du 9 juillet 1984 sur le développement de l'initiative économique ainsi que par les salariés d'une société coopérative ouvrière de production au sens de la loi n° 78-763 du 19 juillet 1978 portant statut de sociétés coopératives ouvrières de production ne sont pas pris en compte pour l'évaluation de la proportion du capital prévue à l'alinéa précédent.
Lorsque le rapport annuel ne comprend pas les mentions prévues au premier alinéa, toute personne intéressée peut demander au président du tribunal statuant en référé d'enjoindre sous astreinte au conseil d'administration ou au directoire, selon le cas, de communiquer ces informations.
Lorsqu'il est fait droit à la demande, l'astreinte et les frais de procédure sont à la charge des administrateurs ou des membres du directoire, selon le cas.
Article L225-102-1
Le rapport visé à l'article L. 225-102 rend compte de la rémunération totale et des avantages de toute nature versés, durant l'exercice, à chaque mandataire social, y compris sous forme d'attribution de titres de capital, de titres de créances ou de titres donnant accès au capital ou donnant droit à l'attribution de titres de créances de la société ou des sociétés mentionnées aux articles L. 228-13 et L. 228-93.
Il indique également le montant des rémunérations et des avantages de toute nature que chacun de ces mandataires a reçu durant l'exercice de la part des sociétés contrôlées au sens de l'article L. 233-16 ou de la société qui contrôle, au sens du même article, la société dans laquelle le mandat est exercé.
Ce rapport décrit en les distinguant les éléments fixes, variables et exceptionnels composant ces rémunérations et avantages ainsi que les critères en application desquels ils ont été calculés ou les circonstances en vertu desquelles ils ont été établis. Il indique également les engagements de toutes natures, pris par la société au bénéfice de ses mandataires sociaux, correspondant à des éléments de rémunération, des indemnités ou des avantages dus ou susceptibles d'être dus à raison de la prise, de la cessation ou du changement de ces fonctions ou postérieurement à celles-ci. L'information donnée à ce titre doit préciser les modalités de détermination de ces engagements. Hormis les cas de bonne foi, les versements effectués et les engagements pris en méconnaissance des dispositions du présent alinéa peuvent être annulés.
Il comprend également la liste de l'ensemble des mandats et fonctions exercés dans toute société par chacun de ces mandataires durant l'exercice.
Il comprend également des informations, dont la liste est fixée par décret en Conseil d'Etat, sur la manière dont la société prend en compte les conséquences sociales et environnementales de son activité. Le présent alinéa ne s'applique pas aux sociétés dont les titres ne sont pas admis aux négociations sur un marché réglementé.
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Les dispositions des deux derniers alinéas de l'article L. 225-102 sont applicables aux informations visées au présent article.
Les dispositions des premier à troisième alinéas ne sont pas applicables aux sociétés dont les titres ne sont pas admis aux négociations sur un marché réglementé et qui ne sont pas contrôlées au sens de l'article L. 233-16 par une société dont les titres sont admis aux négociations sur un marché réglementé. Ces dispositions ne sont, en outre, pas applicables aux mandataires sociaux ne détenant aucun mandat dans une société dont les titres sont admis aux négociations sur un marché réglementé.
Article L225-102-2
Pour les sociétés exploitant au moins une installation figurant sur la liste prévue au IV de l'article L. 515-8 du code de l'environnement, le rapport mentionné à l'article L. 225-102 du présent code :
- informe de la politique de prévention du risque d'accident technologique menée par la société ;
- rend compte de la capacité de la société à couvrir sa responsabilité civile vis-à-vis des biens et des personnes du fait de l'exploitation de telles installations ;
- précise les moyens prévus par la société pour assurer la gestion de l'indemnisation des victimes en cas d'accident technologique engageant sa responsabilité.
Article L225-103
I. - L'assemblée générale est convoquée par le conseil d'administration ou le directoire, selon le cas.
II. - A défaut, l'assemblée générale peut être également convoquée :
1° Par les commissaires aux comptes ;
2° Par un mandataire, désigné en justice, à la demande, soit de tout intéressé en cas d'urgence, soit d'un ou plusieurs actionnaires réunissant au moins 5 % du capital social, soit d'une association d'actionnaires répondant aux conditions fixées à l'article L. 225-120 ;
3° Par les liquidateurs ;
4° Par les actionnaires majoritaires en capital ou en droits de vote après une offre publique d'achat ou d'échange ou après une cession d'un bloc de contrôle.
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III. - Dans les sociétés soumises aux articles L. 225-57 à L. 225-93, l'assemblée générale peut être convoquée par le conseil de surveillance.
IV. - Les dispositions qui précédent sont applicables aux assemblées spéciales. Les actionnaires agissant en désignation d'un mandataire de justice doivent réunir au moins le dixième des actions de la catégorie intéressée.
V. - Sauf clause contraire des statuts, les assemblées d'actionnaires sont réunies au siège social ou en tout autre lieu du même département.
Article L225-104
La convocation des assemblées d'actionnaires est faite dans les formes et délais fixés par décret en Conseil d'Etat.
Toute assemblée irrégulièrement convoquée peut être annulée. Toutefois, l'action en nullité n'est pas recevable lorsque tous les actionnaires étaient présents ou représentés.
Article L225-105
L'ordre du jour des assemblées est arrêté par l'auteur de la convocation.
Toutefois, un ou plusieurs actionnaires représentant au moins 5 % du capital ou une association d'actionnaires répondant aux conditions fixées à l'article L. 225-120 ont la faculté de requérir l'inscription à l'ordre du jour de projets de résolution. Ces projets de résolution sont inscrits à l'ordre du jour de l'assemblée et portés à la connaissance des actionnaires dans les conditions déterminées par décret en Conseil d'Etat. Celui-ci peut réduire le pourcentage exigé par le présent alinéa, lorsque le capital social excède un montant fixé par ledit décret.
L'assemblée ne peut délibérer sur une question qui n'est pas inscrite à l'ordre du jour. Néanmoins, elle peut, en toutes circonstances, révoquer un ou plusieurs administrateurs ou membres du conseil de surveillance et procéder à leur remplacement.
L'ordre du jour de l'assemblée ne peut être modifié sur deuxième convocation.
Lorsque l'assemblée est appelée à délibérer sur des modifications de l'organisation économique ou juridique de l'entreprise sur lesquelles le comité d'entreprise a été consulté en application de l'article L. 432-1 du code du travail, l'avis de celui-ci lui est communiqué.
Article L225-106
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Un actionnaire peut se faire représenter par un autre actionnaire ou par son conjoint.
Tout actionnaire peut recevoir les pouvoirs émis par d'autres actionnaires en vue d'être représentés à une assemblée, sans autres limites que celles résultant des dispositions légales ou statutaires fixant le nombre maximal des voix dont peut disposer une même personne, tant en son nom personnel que comme mandataire.
Avant chaque réunion de l'assemblée générale des actionnaires, le président du conseil d'administration ou le directoire, selon le cas, peut organiser la consultation des actionnaires mentionnés à l'article L. 225-102 afin de leur permettre de désigner un ou plusieurs mandataires pour les représenter à l'assemblée générale conformément aux dispositions du présent article.
Cette consultation est obligatoire lorsque, les statuts ayant été modifiés en application de l'article L. 225-23 ou de l'article L. 225-71, l'assemblée générale ordinaire doit nommer au conseil d'administration ou au conseil de surveillance, selon le cas, un ou des salariés actionnaires ou membres des conseils de surveillance des fonds communs de placement d'entreprise détenant des actions de la société.
Cette consultation est également obligatoire lorsque l'assemblée générale extraordinaire doit se prononcer sur une modification des statuts en application de l'article L. 225-23 ou de l'article L. 225-71.
Les clauses contraires aux dispositions des alinéas précédents sont réputées non écrites.
Pour toute procuration d'un actionnaire sans indication de mandataire, le président de l'assemblée générale émet un vote favorable à l'adoption des projets de résolution présentés ou agréés par le conseil d'administration ou le directoire, selon le cas, et un vote défavorable à l'adoption de tous les autres projets de résolution. Pour émettre tout autre vote, l'actionnaire doit faire choix d'un mandataire qui accepte de voter dans le sens indiqué par le mandant.
Article L225-107
I. Tout actionnaire peut voter par correspondance, au moyen d'un formulaire dont les mentions sont fixées par décret en Conseil d'Etat. Les dispositions contraires des statuts sont réputées non écrites.
Pour le calcul du quorum, il n'est tenu compte que des formulaires qui ont été reçus par la société avant la réunion de l'assemblée, dans les conditions de délais fixées par décret en Conseil d'Etat. Les formulaires ne donnant aucun sens de vote ou exprimant une abstention sont considérés comme des votes négatifs.
II. Si les statuts le prévoient, sont réputés présents pour le calcul du quorum et de la majorité les actionnaires qui participent à l'assemblée par visioconférence ou par des moyens de télécommunication permettant leur identification et dont la nature et les conditions d'application sont déterminées par décret en Conseil d'Etat.
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Article L225-107-1
Les propriétaires de titres mentionnés au septième alinéa de l'article L. 228-1 peuvent se faire représenter dans les conditions prévues audit article par un intermédiaire inscrit.
Article L225-108
Le conseil d'administration ou le directoire, selon le cas, doit adresser ou mettre à la disposition des actionnaires les documents nécessaires pour permettre à ceux-ci de se prononcer en connaissance de cause et de porter un jugement informé sur la gestion et la marche des affaires de la société.
La nature de ces documents et les conditions de leur envoi ou de leur mise à la disposition des actionnaires sont déterminées par décret en Conseil d'Etat.
A compter de la communication prévue au premier alinéa, tout actionnaire a la faculté de poser par écrit des questions auxquelles le conseil d'administration ou le directoire, selon le cas, est tenu de répondre au cours de l'assemblée.
Article L225-109
Le président, les directeurs généraux, les membres du directoire d'une société, les personnes physiques ou morales exerçant dans cette société les fonctions d'administrateur ou de membre du conseil de surveillance ainsi que les représentants permanents des personnes morales qui exercent ces fonctions sont tenus, dans les conditions déterminées par décret en Conseil d'Etat, de faire mettre sous la forme nominative ou de déposer les actions qui appartiennent à eux-mêmes ou à leurs enfants mineurs non émancipés et qui sont émises par la société elle-même, par ses filiales, par la société dont elle est la filiale ou par les autres filiales de cette dernière société, lorsque ces actions sont admises aux négociations sur un marché réglementé.
La même obligation incombe aux conjoints non séparés de corps des personnes mentionnées à l'alinéa précédent.
Article L225-110
Le droit de vote attaché à l'action appartient à l'usufruitier dans les assemblées générales ordinaires et au nu-propriétaire dans les assemblées générales extraordinaires.
Les copropriétaires d'actions indivises sont représentés aux assemblées générales par l'un d'eux ou par un mandataire unique. En cas de désaccord, le mandataire est désigné en justice à la demande du copropriétaire le plus diligent.
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Le droit de vote est exercé par le propriétaire des titres remis en gage. A cet effet, le créancier gagiste dépose, à la demande de son débiteur, les actions qu'il détient en gage, dans les conditions et délais fixés par décret en Conseil d'Etat.
Les statuts peuvent déroger aux dispositions du premier alinéa.
Article L225-111
La société ne peut valablement voter avec des actions par elle souscrites, acquises ou prises en gage. Il n'est pas tenu compte de ces actions pour le calcul du quorum.
Article L225-113
Tout actionnaire peut participer aux assemblées générales extraordinaires et tout actionnaire possédant des actions visées à l'article L. 225-99 peut participer aux assemblées spéciales. Toute clause contraire est réputée non écrite.
Article L225-114
A chaque assemblée, est tenue une feuille de présence dont les mentions sont déterminées par décret en Conseil d'Etat.
Article L225-115
Tout actionnaire a droit, dans les conditions et délais déterminés par décret en Conseil d'Etat, d'obtenir communication :
1° De l'inventaire, des comptes annuels et de la liste des administrateurs ou des membres du directoire et du conseil de surveillance, et, le cas échéant, des comptes consolidés ;
2° Des rapports du conseil d'administration ou du directoire et du conseil de surveillance, selon le cas, et des commissaires aux comptes, qui seront soumis à l'assemblée ;
3° Le cas échéant, du texte et de l'exposé des motifs des résolutions proposées, ainsi que des renseignements concernant les candidats au conseil d'administration ou au conseil de surveillance, selon le cas ;
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4° Du montant global, certifié exact par les commissaires aux comptes, des rémunérations versées aux personnes les mieux rémunérées, le nombre de ces personnes étant de dix ou de cinq selon que l'effectif du personnel excède ou non deux cents salariés ;
5° Du montant global, certifié par les commissaires aux comptes des versements effectués en application des 1 et 4 de l'article 238 bis du code général des impôts ainsi que de la liste des actions nominatives de parrainage, de mécénat ;
6° De la liste et de l'objet des conventions portant sur des opérations courantes conclues à des conditions normales, établis conformément aux articles L. 225-39 et L. 225-87.
Article L225-116
Avant la réunion de toute assemblée générale, tout actionnaire a le droit d'obtenir, dans les conditions et les délais déterminés par décret en Conseil d'Etat, communication de la liste des actionnaires.
Article L225-117
Tout actionnaire a le droit, à toute époque, d'obtenir communication des documents visés à l'article L. 225-115 et concernant les trois derniers exercices, ainsi que des procès-verbaux et feuilles de présence des assemblées tenues au cours de ces trois derniers exercices.
Article L225-118
Le droit à communication des documents, prévu aux articles L. 225-115, L. 225-116 et L. 225-117, appartient également à chacun des copropriétaires d'actions indivises, au nu-propriétaire et à l'usufruitier d'actions.
Article L225-120
I. - Dans les sociétés dont les actions sont admises aux négociations sur un marché réglementé, les actionnaires justifiant d'une inscription nominative depuis au moins deux ans et détenant ensemble au moins 5 % des droits de vote peuvent se regrouper en associations destinées à représenter leurs intérêts au sein de la société. Pour exercer les droits qui leur sont reconnus aux articles L. 225-103, L. 225-105, L. 823-6, L. 225-231, L. 225-232, L. 823-7 et L. 225-252, ces associations doivent avoir communiqué leur statut à la société et à l'Autorité des marchés financiers.
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II. - Toutefois, lorsque le capital de la société est supérieur à 750 000 euros, la part des droits de vote à représenter en application de l'alinéa précédent, est, selon l'importance des droits de vote afférent au capital, réduite ainsi qu'il suit :
1° 4 % entre 750 000 euros et jusqu'à 4 500 000 euros ;
2° 3 % entre 4 500 000 euros et 7 500 000 euros ;
3° 2 % entre 7 500 000 euros et 15 000 000 euros ;
4° 1 % au-delà de 15 000 000 euros.
Article L225-121
Les délibérations prises par les assemblées en violation des articles L. 225-96, L. 225-97, L. 225-98, des troisième et quatrième alinéas de l'article L. 225-99, du deuxième alinéa de l'article L. 225-100 et des articles L. 225-105 et L. 225-114 sont nulles.
En cas de violation des dispositions des articles L. 225-115 et L. 225-116 ou du décret pris pour leur application, l'assemblée peut être annulée.
Article L225-122
I. - Sous réserve des dispositions des articles L. 225-10, L. 225-123, L. 225-124, L. 225-125 et L. 225-126, le droit de vote attaché aux actions de capital ou de jouissance est proportionnel à la quotité de capital qu'elles représentent et chaque action donne droit à une voix au moins. Toute clause contraire est réputée non écrite.
II. - Dans les sociétés par actions dont le capital est, pour un motif d'intérêt général, en partie propriété de l'Etat, de départements, de communes ou d'établissements publics, et dans celles ayant pour objet des exploitations concédées par les autorités administratives compétentes, hors de la France métropolitaine, le droit de vote est réglé par les statuts en vigueur le 1er avril 1967.
Article L225-123
Un droit de vote double de celui conféré aux autres actions, eu égard à la quotité de capital social qu'elles représentent, peut être attribué, par les statuts ou une assemblée générale extraordinaire ultérieure, à toutes les actions entièrement libérées pour lesquelles il sera justifié d'une inscription nominative, depuis deux ans au moins, au nom du même actionnaire.
En outre, en cas d'augmentation du capital par incorporation de réserves, bénéfices ou primes
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d'émission, le droit de vote double peut être conféré, dès leur émission, aux actions nominatives attribuées gratuitement à un actionnaire à raison d'actions anciennes pour lesquelles il bénéficie de ce droit.
Le droit de vote prévu aux premier et deuxième alinéas ci-dessus peut être réservé aux actionnaires de nationalité française et à ceux ressortissant d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen.
Article L225-124
Toute action convertie au porteur ou transférée en propriété perd le droit de vote double attribué en application de l'article L. 225-123. Néanmoins, le transfert par suite de succession, de liquidation de communauté de biens entre époux ou de donation entre vifs au profit d'un conjoint ou d'un parent au degré successible ne fait pas perdre le droit acquis et n'interrompt pas le délai mentionné au premier alinéa de l'article L. 225-123. Il en est de même, sauf stipulation contraire des statuts de la société ayant attribué le droit de vote double, en cas de transfert par suite d'une fusion ou d'une scission d'une société actionnaire.
La fusion ou la scission de la société est sans effet sur le droit de vote double qui peut être exercé au sein de la ou des sociétés bénéficiaires, si les statuts de celles-ci l'ont institué.
Article L225-125
Les statuts peuvent limiter le nombre de voix dont chaque actionnaire dispose dans les assemblées, sous la condition que cette limitation soit imposée à toutes les actions sans distinction de catégorie, autres que les actions à dividende prioritaire sans droit de vote.
Les effets de la limitation mentionnée à l'alinéa précédent, prévue dans les statuts d'une société qui fait l'objet d'une offre publique et dont des actions sont admises à la négociation sur un marché réglementé, sont suspendus lors de la première assemblée générale qui suit la clôture de l'offre lorsque l'auteur de l'offre, agissant seul ou de concert, vient à détenir une fraction du capital ou des droits de vote de la société visée par l'offre supérieure à une quotité fixée par le règlement général de l'Autorité des marchés financiers, au moins égale à celle requise pour modifier les statuts, et dans la limite des trois quarts.
Section 4 : Des modifications du capital social et de l'actionnariat des salariés.
Sous-section 1 : De l'augmentation du capital.
Article L225-127
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Le capital social est augmenté soit par émission d'actions ordinaires ou d'actions de préférence, soit par majoration du montant nominal des titres de capital existants.
Il peut également être augmenté par l'exercice de droits attachés à des valeurs mobilières donnant accès au capital, dans les conditions prévues aux articles L. 225-149 et L. 225-177.
Article L225-128
Les titres de capital nouveaux sont émis soit à leur montant nominal, soit à ce montant majoré d'une prime d'émission.
Ils sont libérés soit par apport en numéraire y compris par compensation avec des créances liquides et exigibles sur la société, soit par apport en nature, soit par incorporation de réserves, bénéfices ou primes d'émission, soit en conséquence d'une fusion ou d'une scission.
Ils peuvent aussi être libérés consécutivement à l'exercice d'un droit attaché à des valeurs mobilières donnant accès au capital comprenant, le cas échéant, le versement des sommes correspondantes.
Article L225-129
L'assemblée générale extraordinaire est seule compétente pour décider, sur le rapport du conseil d'administration ou du directoire, une augmentation de capital immédiate ou à terme. Elle peut déléguer cette compétence au conseil d'administration ou au directoire dans les conditions fixées à l'article L. 225-129-2.
L'augmentation de capital doit, sous réserve des dispositions prévues aux articles L. 225-129-2 et L. 225-138, être réalisée dans le délai de cinq ans à compter de cette décision ou de cette délégation. Ce délai ne s'applique pas aux augmentations de capital à réaliser à la suite de l'exercice d'un droit attaché à une valeur mobilière donnant accès au capital ou à la suite des levées d'options prévues à l'article L. 225-177 ou du fait de l'attribution définitive d'actions gratuites prévue à l'article L. 225-197-1.
Article L225-129-1
Lorsque l'assemblée générale extraordinaire décide l'augmentation de capital, elle peut déléguer au conseil d'administration ou au directoire le pouvoir de fixer les modalités de l'émission des titres.
Article L225-129-2
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Lorsque l'assemblée générale extraordinaire délègue au conseil d'administration ou au directoire sa compétence pour décider de l'augmentation de capital, elle fixe la durée, qui ne peut excéder vingt-six mois, durant laquelle cette délégation peut être utilisée et le plafond global de cette augmentation.
Cette délégation prive d'effet toute délégation antérieure ayant le même objet.
Les émissions mentionnées aux articles L. 225-135 à L. 225-138-1 et L. 225-177 à L. 225-186, L. 225-197-1 à L. 225-197-3 ainsi que les émissions d'actions de préférence mentionnées aux articles L. 228-11 à L. 228-20 doivent faire l'objet de résolutions particulières.
Dans la limite de la délégation donnée par l'assemblée générale, le conseil d'administration ou le directoire dispose des pouvoirs nécessaires pour fixer les conditions d'émission, constater la réalisation des augmentations de capital qui en résultent et procéder à la modification corrélative des statuts.
Article L225-129-4
Dans les sociétés anonymes dont les titres de capital sont admis aux négociations sur un marché réglementé ou sur un système multilatéral de négociation qui se soumet aux dispositions législatives ou réglementaires visant à protéger les investisseurs contre les opérations d'initiés, les manipulations de cours et la diffusion de fausses informations :
a) Le conseil d'administration peut, dans les limites qu'il aura préalablement fixées, déléguer au directeur général ou, en accord avec ce dernier, à un ou plusieurs directeurs généraux délégués le pouvoir de décider la réalisation de l'émission, ainsi que celui d'y surseoir ;
b) Le directoire peut déléguer à son président ou, en accord avec celui-ci, à l'un de ses membres le pouvoir de décider la réalisation de l'émission, ainsi que celui d'y surseoir.
Les personnes désignées rendent compte au conseil d'administration ou au directoire de l'utilisation faite de ce pouvoir dans les conditions prévues par ces derniers.
Article L225-129-5
Lorsqu'il est fait usage des délégations prévues aux articles L. 225-129-1 et L. 225-129-2, le conseil d'administration ou le directoire établit un rapport complémentaire à l'assemblée générale ordinaire suivante dans les conditions fixées par décret en Conseil d'Etat.
Article L225-129-6
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Lors de toute décision d'augmentation du capital par apport en numéraire, sauf si elle résulte d'une émission au préalable de valeurs mobilières donnant accès au capital, l'assemblée générale extraordinaire doit se prononcer sur un projet de résolution tendant à la réalisation d'une augmentation de capital dans les conditions prévues aux articles L. 3332-18 à L. 3332-24 du code du travail. Toutefois, l'assemblée générale extraordinaire se prononce sur un tel projet de résolution lorsqu'elle délègue sa compétence pour réaliser l'augmentation de capital conformément à l'article L. 225-129-2.
Tous les trois ans, une assemblée générale extraordinaire est convoquée pour se prononcer sur un projet de résolution tendant à réaliser une augmentation de capital dans les conditions prévues à l'article L. 443-5 du code du travail si, au vu du rapport présenté à l'assemblée générale par le conseil d'administration ou le directoire en application de l'article L. 225-102, les actions détenues par le personnel de la société et des sociétés qui lui sont liées au sens de l'article L. 225-180 représentent moins de 3 % du capital.
Article L225-130
Lorsque l'augmentation du capital, que ce soit par émission de titres de capital nouveaux ou par majoration du montant nominal des titres de capital existants, est réalisée par incorporation de réserves, bénéfices ou primes d'émission, l'assemblée générale, par dérogation aux dispositions de l'article L. 225-96, statue dans les conditions de quorum et de majorité prévues à l'article L. 225-98. Dans ce cas, elle peut décider que les droits formant rompus ne sont ni négociables, ni cessibles et que les titres de capital correspondants sont vendus. Les sommes provenant de la vente sont allouées aux titulaires des droits dans un délai fixé par décret en Conseil d'Etat.
L'augmentation de capital par majoration du montant nominal des titres de capital, en dehors des cas prévus à l'alinéa précédent, n'est décidée qu'avec le consentement unanime des actionnaires.
Article L225-131
Le capital doit être intégralement libéré avant toute émission d'actions nouvelles à libérer en numéraire.
En outre, l'augmentation du capital par offre au public, réalisée moins de deux ans après la constitution d'une société selon les articles L. 225-12 à L. 225-16, doit être précédée, dans les conditions visées aux articles L. 225-8 à L. 225-10, d'une vérification de l'actif et du passif ainsi que, le cas échéant, des avantages particuliers consentis.
Article L225-132
Les actions comportent un droit préférentiel de souscription aux augmentations de capital.
Les actionnaires ont, proportionnellement au montant de leurs actions, un droit de préférence à la
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souscription des actions de numéraire émises pour réaliser une augmentation de capital.
Pendant la durée de la souscription, ce droit est négociable lorsqu'il est détaché d'actions elles-mêmes négociables. Dans le cas contraire, il est cessible dans les mêmes conditions que l'action elle-même.
Les actionnaires peuvent renoncer à titre individuel à leur droit préférentiel.
La décision relative à la conversion des actions de préférence emporte renonciation des actionnaires au droit préférentiel de souscription aux actions issues de la conversion.
La décision d'émission de valeurs mobilières donnant accès au capital emporte également renonciation des actionnaires à leur droit préférentiel de souscription aux titres de capital auxquels les valeurs mobilières émises donnent droit.
Article L225-133
Si l'assemblée générale ou, en cas de délégation prévue à l'article L. 225-129, le conseil d'administration ou le directoire le décide expressément, les titres de capital non souscrits à titre irréductible sont attribués aux actionnaires qui auront souscrit un nombre de titres supérieur à celui auquel ils pouvaient souscrire à titre préférentiel, proportionnellement aux droits de souscription dont ils disposent et, en tout état de cause, dans la limite de leurs demandes.
Article L225-134
I. - Si les souscriptions à titre irréductible et, le cas échéant, à titre réductible n'ont pas absorbé la totalité de l'augmentation de capital :
1° Le montant de l'augmentation de capital peut être limité au montant des souscriptions sauf décision contraire de l'assemblée générale. En aucun cas, le montant de l'augmentation de capital ne peut être inférieur aux trois quarts de l'augmentation décidée ;
2° Les actions non souscrites peuvent être librement réparties totalement ou partiellement, à moins que l'assemblée en ait décidé autrement ;
3° Les actions non souscrites peuvent être offertes au public totalement ou partiellement lorsque l'assemblée a expressément admis cette possibilité.
II. - Le conseil d'administration ou le directoire peut utiliser dans l'ordre qu'il détermine les facultés prévues ci-dessus ou certaines d'entre elles seulement. L'augmentation de capital n'est pas réalisée lorsque après l'exercice de ces facultés, le montant des souscriptions reçues n'atteint pas la totalité de l'augmentation de capital ou les trois quarts de cette augmentation dans le cas prévu au 1° du I.
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III. - Toutefois, le conseil d'administration ou le directoire peut, d'office et dans tous les cas, limiter l'augmentation de capital au montant atteint lorsque les actions non souscrites représentent moins de 3 % de l'augmentation de capital. Toute délibération contraire est réputée non écrite.
Article L225-135
L'assemblée qui décide ou autorise une augmentation de capital peut supprimer le droit préférentiel de souscription pour la totalité de l'augmentation de capital ou pour une ou plusieurs tranches de cette augmentation. Elle statue sur le rapport du conseil d'administration ou du directoire. Lorsqu'elle décide l'augmentation de capital, elle statue également sur rapport des commissaires aux comptes. Lors des émissions auxquelles il est procédé par le conseil d'administration ou le directoire en application d'une autorisation donnée par l'assemblée générale, le commissaire aux comptes établit un rapport au conseil d'administration ou au directoire.
Dans les sociétés dont les titres de capital sont admis aux négociations sur un marché réglementé, l'assemblée peut prévoir que l'augmentation de capital qu'elle décide ou autorise comporte un délai de priorité de souscription en faveur des actionnaires, dont la durée minimale est fixée par décret en Conseil d'Etat. Elle peut également déléguer au conseil d'administration ou au directoire la faculté d'apprécier s'il y a lieu de prévoir un tel délai et éventuellement de fixer ce délai dans les mêmes conditions.
Un décret en Conseil d'Etat fixe les conditions dans lesquelles sont établis les rapports des commissaires aux comptes prévus au présent article.
Article L225-135-1
En cas d'augmentation de capital avec ou sans droit préférentiel de souscription, l'assemblée peut prévoir que le nombre de titres pourra être augmenté pendant un délai fixé par décret en Conseil d'Etat, dans la limite d'une fraction de l'émission initiale déterminée par ce même décret et au même prix que celui retenu pour l'émission initiale. La limite prévue au 1° du I de l'article L. 225-134 est alors augmentée dans les mêmes proportions.
Article L225-136
L'émission de titres de capital sans droit préférentiel de souscription par une offre au public ou par une offre visée au II de l'article L. 411-2 du code monétaire et financier est soumise aux conditions suivantes :
1° Pour les sociétés dont les titres de capital sont admis aux négociations sur un marché réglementé et dans la mesure où les titres de capital à émettre de manière immédiate ou différée leur sont assimilables, le prix d'émission desdits titres doit être fixé selon des modalités prévues par décret en Conseil d'Etat pris après consultation de l'Autorité des marchés financiers ;
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Toutefois, dans la limite de 10 % du capital social par an, l'assemblée générale extraordinaire peut autoriser le conseil d'administration ou le directoire à fixer le prix d'émission selon des modalités qu'elle détermine au vu d'un rapport du conseil d'administration ou du directoire, et d'un rapport spécial du commissaire aux comptes. Lorsqu'il est fait usage de cette autorisation, le conseil d'administration ou le directoire établit un rapport complémentaire, certifié par le commissaire aux comptes, décrivant les conditions définitives de l'opération et donnant des éléments d'appréciation de l'incidence effective sur la situation de l'actionnaire.
2° Dans les autres cas, le prix d'émission ou les conditions de fixation de ce prix sont déterminés par l'assemblée générale extraordinaire sur rapport du conseil d'administration ou du directoire et sur rapport spécial du commissaire aux comptes ;
3° L'émission de titres de capital réalisée par une offre visée au II de l'article L. 411-2 du code monétaire et financier est limitée à 20 % du capital social par an.
Article L225-138
I. - L'assemblée générale qui décide l'augmentation du capital peut la réserver à une ou plusieurs personnes nommément désignées ou catégories de personnes répondant à des caractéristiques déterminées. A cette fin, elle peut supprimer le droit préférentiel de souscription. Les personnes nommément désignées bénéficiaires de cette disposition ne peuvent prendre part au vote. Le quorum et la majorité requis sont calculés après déduction des actions qu'elles possèdent. La procédure prévue à l'article L. 225-147 n'est pas applicable.
Lorsque l'assemblée générale extraordinaire supprime le droit préférentiel de souscription en faveur d'une ou plusieurs catégories de personnes répondant à des caractéristiques qu'elle fixe, elle peut déléguer au conseil d'administration ou au directoire le soin d'arrêter la liste des bénéficiaires au sein de cette ou de ces catégories et le nombre de titres à attribuer à chacun d'eux, dans les limites des plafonds prévus au premier alinéa de l'article L. 225-129-2. Lorsqu'il fait usage de cette délégation, le conseil d'administration ou le directoire établit un rapport complémentaire à la prochaine assemblée générale ordinaire, certifié par le commissaire aux comptes, décrivant les conditions définitives de l'opération.
II. - Le prix d'émission ou les conditions de fixation de ce prix sont déterminés par l'assemblée générale extraordinaire sur rapport du conseil d'administration ou du directoire et sur rapport spécial du commissaire aux comptes.
III. - L'émission doit être réalisée dans un délai de dix-huit mois à compter de l'assemblée générale qui l'a décidée ou qui a voté la délégation prévue à l'article L. 225-129.
Article L225-138-1
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Pour l'application du premier alinéa de l'article L. 443-5 du code du travail relatif aux augmentations de capital réservées aux adhérents d'un plan d'épargne d'entreprise, lorsque l'assemblée générale a supprimé le droit préférentiel de souscription en faveur des salariés de la société ou des sociétés qui lui sont liées au sens de l'article L. 225-180, les dispositions des I et II de l'article L. 225-138 s'appliquent et :
1° Le prix de souscription demeure déterminé dans les conditions définies à l'article L. 443-5 du code du travail ;
2° L'augmentation de capital n'est réalisée qu'à concurrence du montant des titres de capital souscrits par les salariés individuellement ou par l'intermédiaire d'un fonds commun de placement ou des titres émis par des sociétés d'investissement à capital variable régies par l'article L. 214-40-1 du code monétaire et financier. Elle ne donne pas lieu aux formalités prévues aux articles L. 225-142, L. 225-144 et L. 225-146 ;
3° (supprimé)
4° Le délai susceptible d'être accordé aux souscripteurs pour la libération de leurs titres ne peut être supérieur à trois ans ;
5° Les titres de capital ou valeurs mobilières donnant accès au capital peuvent être libérés, à la demande de la société ou du souscripteur, soit par versements périodiques, soit par prélèvements égaux et réguliers sur le salaire du souscripteur ;
6° Les titres de capital ou valeurs mobilières donnant accès au capital ainsi souscrits délivrés avant l'expiration du délai de cinq ans prévu à l'article L. 443-6 du code du travail ne sont négociables qu'après avoir été intégralement libérés ;
7° Les titres de capital ou valeurs mobilières donnant accès au capital réservés aux adhérents aux plans d'épargne mentionnés à l'article L. 443-1 du code du travail peuvent, par dérogation aux dispositions du premier alinéa de l'article L. 225-131 du présent code, être émis alors même que le capital social n'aurait pas été intégralement libéré.
Le fait que les titres mentionnés à l'alinéa précédent n'aient pas été entièrement libérés ne fait pas obstacle à l'émission de titres de capital à libérer en numéraire.
Les participants au plan d'épargne d'entreprise prévu à l'article L. 443-1 du code du travail peuvent obtenir la résiliation ou la réduction de leur engagement de souscription ou de détention de titres de capital ou de valeurs mobilières donnant accès au capital émis par l'entreprise dans les cas et conditions fixés par les décrets en Conseil d'Etat prévus à l'article L. 442-7 du même code.
Article L225-139
Un décret en Conseil d'Etat détermine les mentions qui doivent figurer dans les rapports prévus aux articles L. 225-129, L. 225-135, L. 225-136 et L. 225-138, de même que dans les rapports prévus en
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cas d'émission d'actions de préférence ou de valeurs mobilières donnant accès au capital.
Article L225-140
Lorsque les titres de capital sont grevés d'un usufruit, le droit préférentiel de souscription qui leur est attaché appartient au nu-propriétaire. Si celui-ci vend les droits de souscription, les sommes provenant de la cession ou les biens acquis par lui au moyen de ces sommes sont soumis à l'usufruit. Si le nu-propriétaire néglige d'exercer son droit, l'usufruitier peut se substituer à lui pour souscrire aux titres nouveaux ou pour vendre les droits. Dans ce dernier cas, le nu-propriétaire peut exiger le remploi des sommes provenant de la cession. Les biens ainsi acquis sont soumis à l'usufruit.
Les titres nouveaux appartiennent au nu-propriétaire pour la nue-propriété et à l'usufruitier pour l'usufruit. Toutefois, en cas de versement de fonds effectué par le nu-propriétaire ou l'usufruitier pour réaliser ou parfaire une souscription, les titres nouveaux n'appartiennent au nu-propriétaire et à l'usufruitier qu'à concurrence de la valeur des droits de souscription. Le surplus des titres nouveaux appartient en pleine propriété à celui qui a versé les fonds.
Un décret en Conseil d'Etat fixe les conditions d'application du présent article dont les dispositions sont également suivies en cas d'attribution de titres gratuits.
Les dispositions du présent article s'appliquent dans le silence de la convention des parties.
Article L225-141
Le délai accordé aux actionnaires pour l'exercice du droit de souscription ne peut être inférieur à cinq jours de bourse à dater de l'ouverture de la souscription.
Ce délai se trouve clos par anticipation dès que tous les droits de souscription à titre irréductible ont été exercés ou que l'augmentation de capital a été intégralement souscrite après renonciation individuelle à leurs droits de souscription des actionnaires qui n'ont pas souscrit.
Article L225-142
La société accomplit, avant l'ouverture de la souscription, des formalités de publicité dont les modalités sont fixées par décret en Conseil d'Etat.
Article L225-143
Le contrat de souscription à des titres de capital ou à des valeurs mobilières donnant accès au
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capital est constaté par un bulletin de souscription, établi dans les conditions déterminées par décret en Conseil d'Etat.
Toutefois, le bulletin de souscription n'est pas exigé des établissements de crédit et des prestataires de services d'investissement qui reçoivent mandat d'effectuer une souscription à charge pour ces mandataires de justifier de leur mandat.
Article L225-144
Les actions souscrites en numéraire sont obligatoirement libérées, lors de la souscription, d'un quart au moins de leur valeur nominale et, le cas échéant, de la totalité de la prime d'émission. La libération du surplus doit intervenir, en une ou plusieurs fois, dans le délai de cinq ans à compter du jour où l'augmentation du capital est devenue définitive.
Les dispositions du premier alinéa de l'article L. 225-5, à l'exception de celles relatives à la liste des souscripteurs, sont applicables. Le retrait des fonds provenant des souscriptions en numéraire peut être effectué par un mandataire de la société après l'établissement du certificat du dépositaire.
Si l'augmentation de capital n'est pas réalisée dans le délai de six mois à compter de l'ouverture de la souscription, il peut être fait application des dispositions du deuxième alinéa de l'article L. 225-11.
Article L225-145
Dans les sociétés faisant, pour le placement de leurs actions, offre au public ou offre visée au II de l'article L. 411-2 du code monétaire et financier, l'augmentation de capital est réputée réalisée lorsqu'un ou plusieurs prestataires de services d'investissement agréés pour fournir le service d'investissement mentionné au 6° de l'article L. 321-1 du code monétaire et financier, ou personnes mentionnées à l'article L. 532-18 de ce code et autorisées à fournir le même service sur le territoire de leur Etat d'origine, ont garanti de manière irrévocable sa bonne fin. Le versement de la fraction libérée de la valeur nominale et de la totalité de la prime d'émission doit intervenir au plus tard le trente-cinquième jour qui suit la clôture du délai de souscription.
Article L225-146
Les souscriptions et les versements sont constatés par un certificat du dépositaire établi, au moment du dépôt des fonds, sur présentation des bulletins de souscription.
Les libérations d'actions par compensation de créances liquides et exigibles sur la société sont constatées par un certificat du notaire ou du commissaire aux comptes. Ce certificat tient lieu de certificat du dépositaire.
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Article L225-147
En cas d'apports en nature ou de stipulation d'avantages particuliers, un ou plusieurs commissaires aux apports sont désignés par décision de justice. Ils sont soumis aux incompatibilités prévues à l'article L. 822-11.
Ces commissaires apprécient, sous leur responsabilité, la valeur des apports en nature et les avantages particuliers. Un décret en Conseil d'Etat fixe les mentions principales de leur rapport, le délai dans lequel il doit être remis et les conditions dans lesquelles il est mis à la disposition des actionnaires. Les dispositions de l'article L. 225-10 sont applicables à l'assemblée générale extraordinaire.
Si l'assemblée approuve l'évaluation des apports et l'octroi d'avantages particuliers, elle constate la réalisation de l'augmentation du capital.
Si l'assemblée réduit l'évaluation des apports ainsi que la rémunération d'avantages particuliers, l'approbation expresse des modifications par les apporteurs, les bénéficiaires ou leurs mandataires dûment autorisés à cet effet, est requise.A défaut, l'augmentation du capital n'est pas réalisée.
Les titres de capital émis en rémunération d'un apport en nature sont intégralement libérés dès leur émission.
L'assemblée générale extraordinaire d'une société dont les titres sont admis aux négociations sur un marché réglementé peut déléguer, pour une durée maximale de vingt-six mois, au conseil d'administration ou au directoire les pouvoirs nécessaires à l'effet de procéder à une augmentation de capital, dans la limite de 10 % de son capital social, en vue de rémunérer des apports en nature consentis à la société et constitués de titres de capital ou de valeurs mobilières donnant accès au capital, lorsque les dispositions de l'article L. 225-148 ne sont pas applicables. Le conseil d'administration ou le directoire statue conformément au troisième ou quatrième alinéas ci-dessus, sur le rapport du ou des commissaires aux apports mentionnés aux premier et deuxième alinéas ci-dessus.
Article L225-148
Les dispositions de l'article L. 225-147 ne sont pas applicables dans le cas où une société dont les actions sont admises aux négociations sur un marché réglementé procède à une augmentation de capital à l'effet de rémunérer des titres apportés à une offre publique d'échange sur des titres d'une société dont les actions sont admises aux négociations sur un marché réglementé d'un Etat partie à l'accord sur l'Espace économique européen ou membre de l'Organisation de coopération et de développement économique.
L'augmentation de capital intervient dans les conditions prévues aux articles L. 225-129 à L. 225-129-6. Toutefois, les commissaires aux comptes doivent exprimer leur avis sur les conditions et les conséquences de l'émission, dans le prospectus diffusé à l'occasion de sa réalisation et dans leur
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rapport à la première assemblée générale ordinaire qui suit l'émission.
Article L225-149
L'augmentation de capital résultant de l'exercice de droits attachés aux valeurs mobilières donnant accès au capital n'est pas soumise aux formalités prévues à l'article L. 225-142, au deuxième alinéa de l'article L. 225-144 et à l'article L. 225-146. Lorsque le titulaire d'une valeur mobilière émise en application de l'article L. 225-149-2 n'a pas droit à un nombre entier, la fraction formant rompu fait l'objet d'un versement en espèces selon les modalités de calcul fixées par décret en Conseil d'Etat.
L'augmentation de capital est définitivement réalisée du seul fait de l'exercice des droits et, le cas échéant, des versements correspondants.
A tout moment de l'exercice en cours et au plus tard lors de la première réunion suivant la clôture de celui-ci, le conseil d'administration ou le directoire constate, s'il y a lieu, le nombre et le montant nominal des actions créées au profit des titulaires des droits au cours de l'exercice écoulé et apporte les modifications nécessaires aux clauses des statuts relatives au montant du capital social et au nombre des titres qui le composent.
Le président du directoire ou le directeur général peut, sur délégation du directoire ou du conseil d'administration, procéder à ces opérations à tout moment de l'exercice et au plus tard dans une limite fixée par décret en Conseil d'Etat.
Article L225-149-1
En cas d'émission de nouveaux titres de capital ou de nouvelles valeurs mobilières donnant accès au capital ainsi qu'en cas de fusion ou de scission de la société appelée à émettre de tels titres, le conseil d'administration ou le directoire peut suspendre, pendant un délai maximum fixé par décret en Conseil d'Etat, la possibilité d'obtenir l'attribution de titres de capital par l'exercice du droit mentionné à l'article L. 225-149 ou à l'article L. 225-178.
Sauf disposition contraire du contrat d'émission, les titres de capital obtenus, à l'issue de la période de suspension, par l'exercice des droits attachés aux valeurs mobilières donnent droit aux dividendes versés au titre de l'exercice au cours duquel ils ont été émis.
Article L225-149-2
Les droits attachés aux titres donnant accès au capital qui ont été utilisés ou qui ont été acquis par la société émettrice ou par la société appelée à émettre de nouveaux titres de capital sont annulés par la société émettrice.
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Article L225-149-3
Les décisions prises sur le fondement du second alinéa de l'article L. 225-129-6 ou relatives aux rapports complémentaires prévus à l'article L. 225-129-5, au second alinéa du 1° de l'article L. 225-136 et au second alinéa du I de l'article L. 225-138 peuvent donner lieu à une injonction de faire suivant les modalités définies aux articles L. 238-1 et L. 238-6.
Peuvent être annulées les décisions prises en violation des articles L. 233-32 et L. 225-142.
Sont nulles les décisions prises en violation des dispositions de la présente sous-section autres que celles mentionnées au présent article.
Sous-section 2 : De la souscription et de l'achat d'actions par les salariés.
Paragraphe 1 : Des options de souscription ou d'achat d'actions.
Article L225-177
L'assemblée générale extraordinaire, sur le rapport du conseil d'administration ou du directoire, selon le cas, et sur le rapport spécial des commissaires aux comptes, peut autoriser le conseil d'administration ou le directoire à consentir, au bénéfice des membres du personnel salarié de la société ou de certains d'entre eux, des options donnant droit à la souscription d'actions. L'assemblée générale extraordinaire fixe le délai pendant lequel cette autorisation peut être utilisée par le conseil d'administration ou par le directoire, ce délai ne pouvant être supérieur à trente-huit mois. Toutefois, les autorisations antérieures à la date de publication de la loi n° 2001-420 du 15 mai 2001 relative aux nouvelles régulations économiques sont valables jusqu'à leur terme.
Le conseil d'administration ou le directoire fixe les conditions dans lesquelles seront consenties les options. Ces conditions pourront comporter des clauses d'interdiction de revente immédiate de tout ou partie des actions sans que le délai imposé pour la conservation des titres puisse excéder trois ans à compter de la levée de l'option.
Les options peuvent être consenties ou levées alors même que le capital social n'aurait pas été intégralement libéré.
Le prix de souscription est fixé au jour où l'option est consentie, par le conseil d'administration ou le directoire selon les modalités déterminées par l'assemblée générale extraordinaire sur le rapport des commissaires aux comptes. Si les actions de la société ne sont pas admises aux négociations sur un marché réglementé, le prix de souscription est déterminé conformément aux méthodes objectives retenues en matière d'évaluation d'actions en tenant compte, selon une pondération appropriée à chaque cas, de la situation nette comptable, de la rentabilité et des perspectives d'activité de l'entreprise. Ces critères sont appréciés le cas échéant sur une base consolidée ou, à défaut, en tenant
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compte des éléments financiers issus des filiales significatives. A défaut, le prix de souscription est déterminé en divisant par le nombre de titres existants le montant de l'actif net réévalué, calculé d'après le bilan le plus récent. Si les actions de la société sont admises aux négociations sur un marché réglementé le prix de souscription ne peut pas être inférieur à 80 % de la moyenne des cours cotés aux vingt séances de bourse précédant ce jour, aucune option ne pouvant être consentie moins de vingt séances de bourse après le détachement des actions d'un coupon donnant droit à un dividende ou à une augmentation de capital.
Dans une société dont les titres sont admis aux négociations sur un marché réglementé, les options ne peuvent être consenties :
1° Dans le délai de dix séances de bourse précédant et suivant la date à laquelle les comptes consolidés, ou à défaut les comptes annuels, sont rendus publics ;
2° Dans le délai compris entre la date à laquelle les organes sociaux de la société ont connaissance d'une information qui, si elle était rendue publique, pourrait avoir une incidence significative sur le cours des titres de la société, et la date postérieure de dix séances de bourse à celle où cette information est rendue publique.
Des options donnant droit à la souscription de titres qui ne sont pas admis aux négociations sur un marché réglementé ne peuvent être consenties qu'aux salariés de la société qui attribue ces options ou à ceux des sociétés mentionnées au 1° de l'article L. 225-180.
Article L225-178
L'autorisation donnée par l'assemblée générale extraordinaire comporte, au profit des bénéficiaires des options, renonciation expresse des actionnaires à leur droit préférentiel de souscription aux actions qui seront émises au fur et à mesure des levées d'options.
L'augmentation de capital résultant de ces levées d'options ne donne pas lieu aux formalités prévues à l'article L. 225-142, au deuxième alinéa de l'article L. 225-144 et à l'article L. 225-146. Elle est définitivement réalisée du seul fait de la déclaration de levée d'option, accompagnée du bulletin de souscription et du paiement en numéraire ou par compensation avec des créances, de la somme correspondante.
Lors de sa première réunion suivant la clôture de chaque exercice, le conseil d'administration ou le directoire, selon le cas, constate, s'il y a lieu, le nombre et le montant des actions émises pendant la durée de l'exercice à la suite des levées d'options et apporte les modifications nécessaires aux clauses des statuts relatives au montant du capital social et au nombre des actions qui le représentent. Le conseil d'administration peut déléguer au directeur général ou, en accord avec ce dernier, à un ou plusieurs directeurs généraux délégués les pouvoirs pour procéder, dans le mois qui suit la clôture de l'exercice, aux opérations mentionnées à la phrase précédente. Le directoire peut, aux mêmes fins, déléguer les mêmes pouvoirs à son président ou, en accord avec ce dernier, à un ou plusieurs de ses membres. Le conseil d'administration ou le directoire, ou les personnes qui ont reçu délégation, peuvent également, à toute époque, procéder à ces opérations pour l'exercice en cours.
Article L225-179
L'assemblée générale extraordinaire peut aussi autoriser le conseil d'administration ou le directoire, selon le cas, à consentir au bénéfice des membres du personnel salarié de la société ou de certains
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d'entre eux, des options donnant droit à l'achat d'actions provenant d'un rachat effectué, préalablement à l'ouverture de l'option, par la société elle-même dans les conditions définies aux articles L. 225-208 ou L. 225-209. L'assemblée générale extraordinaire fixe le délai pendant lequel cette autorisation peut être utilisée par le conseil d'administration ou par le directoire, ce délai ne pouvant être supérieur à trente-huit mois. Toutefois, les autorisations antérieures à la date de publication de la loi n° 2001-420 du 15 mai 2001 relative aux nouvelles régulations économiques sont valables jusqu'à leur terme.
En ce cas, les dispositions des deuxième et quatrième à septième alinéas de l'article L. 225-177 sont applicables. En outre, le prix de l'action, au jour où l'option est consentie, ne peut pas être inférieur à 80 % du cours moyen d'achat des actions détenues par la société au titre des articles L. 225-208 et L. 225-209.
Des options donnant droit à l'achat de titres qui ne sont pas admis aux négociations sur un marché réglementé ne peuvent être consenties qu'aux salariés de la société qui attribue ces options ou à ceux des sociétés mentionnées au 1° de l'article L. 225-180.
Article L225-180
I. - Des options peuvent être consenties, dans les mêmes conditions qu'aux articles L. 225-177 à L. 225-179 ci-dessus :
1° Soit au bénéfice des membres du personnel salarié des sociétés ou des groupements d'intérêt économique dont 10 % au moins du capital ou des droits de vote sont détenus, directement ou indirectement, par la société consentant les options ;
2° Soit au bénéfice des membres du personnel salarié des sociétés ou des groupements d'intérêt économique détenant, directement ou indirectement, au moins 10 % du capital ou des droits de vote de la société consentant les options ;
3° Soit au bénéfice des membres du personnel salarié des sociétés ou des groupements d'intérêt économique dont 50 % au moins du capital ou des droits de vote sont détenus, directement ou indirectement, par une société détenant elle-même, directement ou indirectement, au moins 50 % du capital de la société consentant les options.
II. - L'assemblée générale ordinaire de la société contrôlant majoritairement, directement ou indirectement, celle qui consent les options est informée dans les conditions prévues à l'article L. 225-184.
III. - Des options peuvent également être consenties dans les mêmes conditions qu'aux articles L. 225-177 à L. 225-179 par une entreprise contrôlée, directement ou indirectement, exclusivement ou conjointement, par un organe central, des organes centraux ou les établissements de crédit qui lui ou leur sont affiliés au sens des articles L. 511-30 à L. 511-32 du code monétaire et financier, aux salariés desdites sociétés ainsi qu'à ceux des entités dont le capital est détenu pour plus de 50 %, directement ou indirectement, exclusivement ou conjointement, par cet organe central, ces organes centraux ou des établissements affiliés.
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Article L225-181
Le prix fixé pour la souscription ou l'achat des actions ne peut pas être modifié pendant la durée de l'option.
Toutefois, lorsque la société réalise un amortissement ou une réduction du capital, une modification de la répartition des bénéfices, une attribution gratuite d'actions, une incorporation au capital de réserves, bénéfices ou primes d'émission, une distribution de réserves ou toute émission de titres de capital ou de titres donnant droit à l'attribution de titres de capital comportant un droit de souscription réservé aux actionnaires, elle doit prendre les mesures nécessaires à la protection des intérêts des bénéficiaires des options dans les conditions prévues à l'article L. 228-99.
Article L225-182
Le nombre total des options ouvertes et non encore levées ne peut donner droit à souscrire un nombre d'actions excédant une fraction du capital social déterminée par décret en Conseil d'Etat.
Il ne peut être consenti d'options aux salariés et aux mandataires sociaux possédant plus de 10 % du capital social.
Article L225-183
L'assemblée générale extraordinaire fixe le délai pendant lequel les options doivent être exercées.
Les droits résultant des options consenties sont incessibles jusqu'à ce que l'option ait été exercée.
En cas de décès du bénéficiaire, ses héritiers peuvent exercer l'option dans un délai de six mois à compter du décès.
Article L225-184
Un rapport spécial informe chaque année l'assemblée générale ordinaire des opérations réalisées en vertu des dispositions prévues aux articles L. 225-177 à L. 225-186.
Ce rapport rend également compte :
-du nombre, des dates d'échéance et du prix des options de souscription ou d'achat d'actions qui, durant l'année et à raison des mandats et fonctions exercés dans la société, ont été consenties à chacun de ces mandataires par la société et par celles qui lui sont liées dans les conditions prévues à
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l'article L. 225-180 ;
-du nombre, des dates d'échéance et du prix des options de souscription ou d'achat d'actions qui ont été consenties durant l'année à chacun de ces mandataires, à raison des mandats et fonctions qu'ils y exercent par les sociétés contrôlées au sens de l'article L. 233-16 ;
-du nombre et du prix des actions souscrites ou achetées durant l'exercice par les mandataires sociaux de la société en levant une ou plusieurs des options détenues sur les sociétés visées aux deux alinéas précédents.
Ce rapport indique également :
-le nombre, le prix et les dates d'échéance des options de souscription ou d'achat d'actions consenties, durant l'année, par la société et par les sociétés ou groupements qui lui sont liés dans les conditions prévues à l'article L. 225-180, à chacun des dix salariés de la société non mandataires sociaux dont le nombre d'options ainsi consenties est le plus élevé ;
-le nombre et le prix des actions qui, durant l'année, ont été souscrites ou achetées, en levant une ou plusieurs options détenues sur les sociétés visées à l'alinéa précédent, par chacun des dix salariés de la société non mandataires sociaux dont le nombre d'actions ainsi achetées ou souscrites est le plus élevé. Ce rapport indique également le nombre, le prix et les dates d'échéance des options de souscription ou d'achat d'actions consenties, durant l'année, par les sociétés visées à l'alinéa précédent, à l'ensemble des salariés bénéficiaires ainsi que le nombre de ceux-ci et la répartition des options consenties entre les catégories de ces bénéficiaires.
Article L225-185
Des options donnant droit à la souscription d'actions peuvent être consenties pendant une durée de deux ans à compter de l'immatriculation de la société, aux mandataires sociaux personnes physiques qui participent avec des salariés à la constitution d'une société.
De telles options peuvent également être consenties, pendant une durée de deux ans à compter du rachat, aux mandataires sociaux personnes physiques d'une société qui acquièrent avec des salariés la majorité des droits de vote en vue d'assurer la continuation de la société.
En cas d'attribution d'options, dans un délai de deux ans après la création d'une société ou le rachat de la majorité du capital d'une société par ses salariés ou ses mandataires sociaux, le maximum prévu au dernier alinéa de l'article L. 225-182 est porté au tiers du capital.
Le président du conseil d'administration, le directeur général, les directeurs généraux délégués, les membres du directoire ou le gérant d'une société par actions peuvent se voir attribuer par cette société des options donnant droit à la souscription ou à l'achat d'actions dans les conditions prévues aux articles L. 225-177 à L. 225-184 et L. 225-186-1. Toutefois, par dérogation à ces dispositions, le conseil d'administration ou, selon le cas, le conseil de surveillance soit décide que les options ne peuvent être levées par les intéressés avant la cessation de leurs fonctions, soit fixe la quantité des
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actions issues de levées d'options qu'ils sont tenus de conserver au nominatif jusqu'à la cessation de leurs fonctions.L'information correspondante est publiée dans le rapport mentionné à l'article L. 225-102-1.
Ils peuvent également se voir attribuer, dans les mêmes conditions, des options donnant droit à la souscription ou à l'achat d'actions d'une société qui est liée dans les conditions prévues à l'article L. 225-180, sous réserve que les actions de cette dernière soient admises aux négociations sur un marché réglementé.
Article L225-186
Les articles L. 225-177 à L. 225-185 sont applicables aux certificats d'investissement, aux certificats coopératifs d'investissement et aux certificats coopératifs d'associés.
Article L225-186-1
Dans une société dont les titres sont admis aux négociations sur un marché réglementé, des options ouvrant droit à la souscription ou à l'achat d'actions ne peuvent être attribuées aux personnes mentionnées au quatrième alinéa de l'article L. 225-185 que si la société remplit au moins une des conditions suivantes au titre de l'exercice au cours duquel sont attribuées ces options :
1° La société procède, dans les conditions prévues aux articles L. 225-177 à L. 225-186, à une attribution d'options au bénéfice de l'ensemble de ses salariés et d'au moins 90 % de l'ensemble des salariés de ses filiales au sens de l'article L. 233-1 et relevant de l'article L. 210-3 ;
2° La société procède, dans les conditions prévues aux articles L. 225-197-1 à L. 225-197-5, à une attribution gratuite d'actions au bénéfice de l'ensemble de ses salariés et d'au moins 90 % de l'ensemble des salariés de ses filiales au sens de l'article L. 233-1 et relevant de l'article L. 210-3 ;
3° Un accord d'intéressement au sens de l'article L. 3312-2 du code du travail, un accord de participation dérogatoire au sens de l'article L. 3324-2 du même code ou un accord de participation volontaire au sens de l'article L. 3323-6 du même code est en vigueur au sein de la société et au bénéfice d'au moins 90 % de l'ensemble des salariés de ses filiales au sens de l'article L. 233-1 et relevant de l'article L. 210-3 du présent code. Si, dans la société ou dans ses filiales précitées, des accords sont en vigueur ou étaient en vigueur au titre de l'exercice précédent, la première attribution autorisée par une assemblée générale postérieure à la date de publication de la loi n° 2008-1258 du 3 décembre 2008 en faveur des revenus du travail ne peut intervenir que si les sociétés concernées modifient les modalités de calcul de chacun de ces accords au moyen d'un accord ou d'un avenant ou versent un supplément d'intéressement collectif au sens de l'article L. 3314-10 du code du travail ou un supplément de réserve spéciale de participation au sens de l'article L. 3324-9 du même code.
Paragraphe 2 : De l'émission et de l'achat en bourse d'actions réservées aux salariés.
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Article L225-187-1
Les articles L. 225-192 à L. 225-194 et l'article L. 225-197 demeurent applicables dans leur rédaction antérieure à la publication de la loi n° 2001-152 du 19 février 2001 sur l'épargne salariale jusqu'à l'expiration d'un délai de cinq ans à compter de cette publication.
Paragraphe 3 : Des attributions d'actions gratuites.
Article L225-197-1
I.-L'assemblée générale extraordinaire, sur le rapport du conseil d'administration ou du directoire, selon le cas, et sur le rapport spécial des commissaires aux comptes, peut autoriser le conseil d'administration ou le directoire à procéder, au profit des membres du personnel salarié de la société ou de certaines catégories d'entre eux, à une attribution gratuite d'actions existantes ou à émettre.
L'assemblée générale extraordinaire fixe le pourcentage maximal du capital social pouvant être attribué dans les conditions définies au premier alinéa. Le nombre total des actions attribuées gratuitement ne peut excéder 10 % du capital social à la date de la décision de leur attribution par le conseil d'administration ou le directoire.
Elle fixe également le délai pendant lequel cette autorisation peut être utilisée par le conseil d'administration ou le directoire. Ce délai ne peut excéder trente-huit mois.
Lorsque l'attribution porte sur des actions à émettre, l'autorisation donnée par l'assemblée générale extraordinaire emporte de plein droit, au profit des bénéficiaires des actions attribuées gratuitement, renonciation des actionnaires à leur droit préférentiel de souscription. L'augmentation de capital correspondante est définitivement réalisée du seul fait de l'attribution définitive des actions aux bénéficiaires.
L'attribution des actions à leurs bénéficiaires est définitive au terme d'une période d'acquisition dont la durée minimale, qui ne peut être inférieure à deux ans, est déterminée par l'assemblée générale extraordinaire. Toutefois, l'assemblée peut prévoir l'attribution définitive des actions avant le terme de la période d'acquisition en cas d'invalidité du bénéficiaire correspondant au classement dans la deuxième ou la troisième des catégories prévues à l'article L. 341-4 du code de la sécurité sociale.
L'assemblée générale extraordinaire fixe également la durée minimale de l'obligation de conservation des actions par les bénéficiaires. Cette durée court à compter de l'attribution définitive des actions, mais ne peut être inférieure à deux ans. Toutefois, les actions sont librement cessibles en cas d'invalidité des bénéficiaires correspondant à leur classement dans les catégories précitées du code de la sécurité sociale.
Si l'assemblée générale extraordinaire a retenu pour la période d'acquisition mentionnée au cinquième alinéa une durée au moins égale à quatre ans pour tout ou partie des actions attribuées, elle peut réduire ou supprimer la durée de l'obligation de conservation, mentionnée au sixième alinéa, de ces actions.
Dans une société dont les titres sont admis aux négociations sur un marché réglementé, à l'issue de
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la période d'obligation de conservation, les actions ne peuvent pas être cédées :
1° Dans le délai de dix séances de bourse précédant et suivant la date à laquelle les comptes consolidés, ou à défaut les comptes annuels, sont rendus publics ;
2° Dans le délai compris entre la date à laquelle les organes sociaux de la société ont connaissance d'une information qui, si elle était rendue publique, pourrait avoir une incidence significative sur le cours des titres de la société, et la date postérieure de dix séances de bourse à celle où cette information est rendue publique.
Le conseil d'administration ou, le cas échéant, le directoire détermine l'identité des bénéficiaires des attributions d'actions mentionnées au premier alinéa. Il fixe les conditions et, le cas échéant, les critères d'attribution des actions.
II.-Le président du conseil d'administration, le directeur général, les directeurs généraux délégués, les membres du directoire ou le gérant d'une société par actions peuvent se voir attribuer des actions de la société dans les mêmes conditions que les membres du personnel salarié et dans le respect des conditions mentionnées à l'article L. 225-197-6.
Ils peuvent également se voir attribuer des actions d'une société liée dans les conditions prévues à l'article L. 225-197-2, sous réserve que les actions de cette dernière soient admises aux négociations sur un marché réglementé et dans le respect des conditions mentionnées à l'article L. 225-197-6.
Il ne peut pas être attribué d'actions aux salariés et aux mandataires sociaux détenant chacun plus de 10 % du capital social. Une attribution gratuite d'actions ne peut pas non plus avoir pour effet que les salariés et les mandataires sociaux détiennent chacun plus de 10 % du capital social.
Par dérogation aux dispositions précédentes, pour les actions ainsi attribuées au président du conseil d'administration, au directeur général, aux directeurs généraux délégués, aux membres du directoire ou au gérant d'une société par actions, le conseil d'administration ou, selon le cas, le conseil de surveillance soit décide que ces actions ne peuvent être cédées par les intéressés avant la cessation de leurs fonctions, soit fixe la quantité de ces actions qu'il sont tenus de conserver au nominatif jusqu'à la cessation de leurs fonctions.L'information correspondante est publiée dans le rapport mentionné à l'article L. 225-102-1.
III.-En cas d'échange sans soulte d'actions résultant d'une opération de fusion ou de scission réalisée conformément à la réglementation en vigueur pendant les périodes d'acquisition ou de conservation prévues au I, les dispositions du présent article et, notamment, les périodes précitées, pour leur durée restant à courir à la date de l'échange, restent applicables aux droits à attribution et aux actions reçus en échange. Il en est de même de l'échange résultant d'une opération d'offre publique, de division ou de regroupement réalisée conformément à la réglementation en vigueur qui intervient pendant la période de conservation.
En cas d'apport à une société ou à un fonds commun de placement dont l'actif est exclusivement composé de titres de capital ou donnant accès au capital émis par la société ou par une société qui lui est liée au sens de l'article L. 225-197-2, l'obligation de conservation prévue au I reste applicable, pour la durée restant à courir à la date de l'apport, aux actions ou parts reçues en contrepartie de l'apport.
Article L225-197-2
I. - Des actions peuvent être attribuées, dans les mêmes conditions que celles mentionnées à l'article L. 225-197-1 :
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1° Soit au bénéfice des membres du personnel salarié des sociétés ou des groupements d'intérêt économique dont 10 % au moins du capital ou des droits de vote sont détenus, directement ou indirectement, par la société qui attribue les actions ;
2° Soit au bénéfice des membres du personnel salarié des sociétés ou des groupes d'intérêt économique détenant, directement ou indirectement, au moins 10 % du capital ou des droits de vote de la société qui attribue les actions ;
3° Soit au bénéfice des membres du personnel salarié des sociétés ou des groupements d'intérêt économique dont 50 % au moins du capital ou des droits de vote sont détenus, directement ou indirectement, par une société détenant elle-même, directement ou indirectement, au moins 50 % du capital de la société qui attribue les actions.
Les actions qui ne sont pas admises aux négociations sur un marché réglementé ne peuvent être attribuées dans les conditions ci-dessus qu'aux salariés de la société qui procède à cette attribution ou à ceux mentionnés au 1°.
II. - Des actions peuvent également être attribuées dans les mêmes conditions que celles prévues à l'article L. 225-197-1 par une entreprise contrôlée, directement ou indirectement, exclusivement ou conjointement, par un organe central, des organes centraux ou les établissements de crédit qui lui ou leur sont affiliés au sens et pour l'application des articles L. 511-30 à L. 511-32 du code monétaire et financier, aux salariés de ces sociétés ainsi qu'à ceux des entités dont le capital est détenu pour plus de 50 %, directement ou indirectement, exclusivement ou conjointement, par cet organe central, ces organes centraux ou ces établissements de crédit.
Article L225-197-3
Les droits résultant de l'attribution gratuite d'actions sont incessibles jusqu'au terme de la période d'acquisition.
En cas de décès du bénéficiaire, ses héritiers peuvent demander l'attribution des actions dans un délai de six mois à compter du décès. Ces actions sont librement cessibles.
Article L225-197-4
Un rapport spécial informe chaque année l'assemblée générale ordinaire des opérations réalisées en vertu des dispositions prévues aux articles L. 225-197-1 à L. 225-197-3.
Ce rapport rend également compte :
-du nombre et de la valeur des actions qui, durant l'année et à raison des mandats et fonctions exercés dans la société, ont été attribuées gratuitement à chacun de ces mandataires par la société et
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par celles qui lui sont liées dans les conditions prévues à l'article L. 225-197-2 ;
-du nombre et de la valeur des actions qui ont été attribuées gratuitement, durant l'année à chacun de ces mandataires, à raison des mandats et fonctions qu'ils y exercent, par les sociétés contrôlées au sens de l'article L. 233-16.
Ce rapport indique également le nombre et la valeur des actions qui, durant l'année, ont été attribuées gratuitement par la société et par les sociétés ou groupements qui lui sont liés dans les conditions prévues à l'article L. 225-197-2, à chacun des dix salariés de la société non mandataires sociaux dont le nombre d'actions attribuées gratuitement est le plus élevé. Ce rapport indique également le nombre et la valeur des actions qui, durant l'année, ont été attribuées gratuitement par les sociétés visées à l'alinéa précédent à l'ensemble des salariés bénéficiaires ainsi que le nombre de ceux-ci et la répartition des actions attribuées entre les catégories de ces bénéficiaires.
Article L225-197-5
L'assemblée générale ordinaire de la société contrôlant majoritairement, directement ou indirectement, celle qui attribue gratuitement les actions est informée dans les conditions prévues à l'article L. 225-197-4.
Article L225-197-6
Dans une société dont les titres sont admis aux négociations sur un marché réglementé, des actions ne peuvent être attribuées dans le cadre des premier et deuxième alinéas du II de l'article L. 225-197-1 que si la société remplit au moins une des conditions suivantes au titre de l'exercice au cours duquel sont attribuées ces actions :
1° La société procède, dans les conditions prévues aux articles L. 225-197-1 à L. 225-197-5, à une attribution gratuite d'actions au bénéfice de l'ensemble de ses salariés et d'au moins 90 % de l'ensemble des salariés de ses filiales au sens de l'article L. 233-1 et relevant de l'article L. 210-3 ;
2° La société procède, dans les conditions prévues aux articles L. 225-177 à L. 225-186, à une attribution d'options au bénéfice de l'ensemble de ses salariés et d'au moins 90 % de l'ensemble des salariés de ses filiales au sens de l'article L. 233-1 et relevant de l'article L. 210-3 ;
3° Un accord d'intéressement au sens de l'article L. 3312-2 du code du travail, un accord de participation dérogatoire au sens de l'article L. 3324-2 du même code ou un accord de participation volontaire au sens de l'article L. 3323-6 du même code est en vigueur au sein de la société et au bénéfice d'au moins 90 % de l'ensemble des salariés de ses filiales au sens de l'article L. 233-1 et relevant de l'article L. 210-3 du présent code. Si, dans la société ou dans ses filiales précitées, des accords sont en vigueur ou étaient en vigueur au titre de l'exercice précédent, la première attribution autorisée par une assemblée générale postérieure à la date de publication de la loi n° 2008-1258 du 3 décembre 2008 en faveur des revenus du travail ne peut intervenir que si les sociétés concernées modifient les modalités de calcul de chacun de ces accords au moyen d'un accord ou d'un avenant ou versent un supplément d'intéressement collectif au sens de l'article L. 3314-10 du code du travail
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ou un supplément de réserve spéciale de participation au sens de l'article L. 3324-9 du même code.
Sous-section 3 : De l'amortissement du capital.
Article L225-198
L'amortissement du capital est effectué en vertu d'une stipulation statutaire ou d'une décision de l'assemblée générale extraordinaire et au moyen des sommes distribuables au sens de l'article L. 232-11. Cet amortissement ne peut être réalisé que par voie de remboursement égal sur chaque action d'une même catégorie et n'entraîne pas de réduction du capital.
Les actions intégralement amorties sont dites actions de jouissance.
Article L225-199
Les actions intégralement ou partiellement amorties perdent, à due concurrence, le droit au premier dividende prévu à l'article L. 232-19 et au remboursement de la valeur nominale. Elles conservent tous leurs autres droits.
Article L225-200
Lorsque le capital est divisé, soit en actions de capital et en actions totalement ou partiellement amorties, soit en actions inégalement amorties, l'assemblée générale des actionnaires peut décider, dans les conditions requises pour la modification des statuts, la conversion des actions totalement ou partiellement amorties en actions de capital.
A cet effet, elle prévoit qu'un prélèvement obligatoire sera effectué, à concurrence du montant amorti des actions à convertir, sur la part des profits sociaux d'un ou plusieurs exercices revenant à ces actions, après paiement, pour les actions partiellement amorties, du premier dividende ou de l'intérêt statutaire auquel elles peuvent donner droit.
Article L225-201
Les actionnaires peuvent être autorisés, dans les mêmes conditions, à verser à la société le montant amorti de leurs actions, augmenté, le cas échéant, du premier dividende ou de l'intérêt statutaire pour la période écoulée de l'exercice en cours et, éventuellement, pour l'exercice précédent.
Article L225-202
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Les décisions prévues aux articles L. 225-200 et L. 225-201 sont soumises à la ratification des assemblées spéciales de chacune des catégories d'actionnaires ayant les mêmes droits.
Article L225-203
Le conseil d'administration ou le directoire, selon le cas, apporte les modifications nécessaires aux clauses des statuts, dans la mesure où ces modifications correspondent matériellement aux résultats effectifs des opérations prévues aux articles L. 225-200 et L. 225-201.
Sous-section 4 : De la réduction du capital.
Article L225-204
La réduction du capital est autorisée ou décidée par l'assemblée générale extraordinaire, qui peut déléguer au conseil d'administration ou au directoire, selon le cas, tous pouvoirs pour la réaliser. En aucun cas, elle ne peut porter atteinte à l'égalité des actionnaires.
Un rapport établi par les commissaires aux comptes sur l'opération envisagée est communiqué aux actionnaires de la société dans un délai fixé par décret en Conseil d'Etat. L'assemblée statue sur le rapport des commissaires qui font connaître leur appréciation sur les causes et conditions de la réduction.
Lorsque le conseil d'administration ou le directoire, selon le cas, réalise l'opération, sur délégation de l'assemblée générale, il en dresse procès-verbal soumis à publicité et procède à la modification corrélative des statuts.
Article L225-205
Lorsque l'assemblée approuve un projet de réduction du capital non motivée par des pertes, le représentant de la masse des obligataires et les créanciers dont la créance est antérieure à la date de dépôt au greffe du procès-verbal de délibération peuvent former opposition à la réduction, dans le délai fixé par décret en Conseil d'Etat.
Une décision de justice rejette l'opposition ou ordonne, soit le remboursement des créances, soit la constitution de garanties si la société en offre et si elles sont jugées suffisantes.
Les opérations de réduction du capital ne peuvent commencer pendant le délai d'opposition ni, le cas échéant, avant qu'il ait été statué en première instance sur cette opposition.
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Si le juge de première instance accueille l'opposition, la procédure de réduction du capital est immédiatement interrompue jusqu'à la constitution de garanties suffisantes ou jusqu'au remboursement des créances. S'il la rejette, les opérations de réduction peuvent commencer.
Sous-section 5 : De la souscription, de l'achat ou de la prise en gage par les sociétés de leurs propres actions.
Article L225-206
I. - Est interdite la souscription par la société de ses propres actions, soit directement, soit par une personne agissant en son propre nom, mais pour le compte de la société.
Les fondateurs, ou, dans le cas d'une augmentation de capital, les membres du conseil d'administration ou du directoire, selon le cas, sont tenus, dans les conditions prévues à l'article L. 225-251 et au premier alinéa de l'article L. 225-256, de libérer les actions souscrites par la société en violation du premier alinéa.
Lorsque les actions ont été souscrites par une personne agissant en son propre nom mais pour le compte de la société, cette personne est tenue de libérer les actions solidairement avec les fondateurs ou, selon le cas, les membres du conseil d'administration ou du directoire. Cette personne est en outre réputée avoir souscrit ces actions pour son propre compte.
II. - L'achat par une société de ses propres actions est autorisé dans les conditions et selon les modalités prévues aux articles L. 225-207 à L. 225-217.
Les achats d'actions par une personne agissant pour le compte de la société sont interdits sauf s'il s'agit d'un prestataire de services d'investissement ou d'un membre d'un marché réglementé intervenant dans les conditions du I de l'article 43 de la loi n° 96-597 du 2 juillet 1996 de modernisation des activités financières.
Article L225-207
L'assemblée générale qui a décidé une réduction de capital non motivée par des pertes peut autoriser le conseil d'administration ou le directoire, selon le cas, à acheter un nombre déterminé d'actions pour les annuler.
Article L225-208
Les sociétés qui font participer leurs salariés à leurs résultats par attribution de leurs actions, celles qui attribuent leurs actions dans les conditions prévues aux articles L. 225-197-1 à L. 225-197-3 et
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celles qui consentent des options d'achat de leurs actions dans les conditions prévues aux articles L. 225-177 et suivants peuvent, à cette fin, racheter leurs propres actions. Les actions doivent être attribuées ou les options doivent être consenties dans le délai d'un an à compter de l'acquisition.
Article L225-209
L'assemblée générale d'une société dont les actions sont admises aux négociations sur un marché réglementé peut autoriser le conseil d'administration ou le directoire, selon le cas, à acheter un nombre d'actions représentant jusqu'à 10 % du capital de la société. L'assemblée générale définit les finalités et les modalités de l'opération, ainsi que son plafond. Cette autorisation ne peut être donnée pour une durée supérieure à dix-huit mois. Le comité d'entreprise est informé de la résolution adoptée par l'assemblée générale.
Lorsque les actions sont rachetées pour favoriser la liquidité dans les conditions définies par le règlement général de l'Autorité des marchés financiers, le nombre d'actions pris en compte pour le calcul de la limite de 10 % prévue au premier alinéa correspond au nombre d'actions achetées, déduction faite du nombre d'actions revendues pendant la durée de l'autorisation.
Le conseil d'administration peut déléguer au directeur général ou, en accord avec ce dernier, à un ou plusieurs directeurs généraux délégués, les pouvoirs nécessaires pour réaliser l'opération mentionnée au premier alinéa. Le directoire peut déléguer à son président ou avec son accord à un ou plusieurs de ses membres les pouvoirs nécessaires pour la réaliser. Les personnes désignées rendent compte au conseil d'administration ou au directoire de l'utilisation faite de ce pouvoir dans les conditions prévues par ces derniers.
L'acquisition, la cession ou le transfert de ces actions peut être effectué par tous moyens. Ces actions peuvent être annulées dans la limite de 10 % du capital de la société par périodes de vingt-quatre mois.
Les sociétés qui font participer les salariés aux fruits de l'expansion de l'entreprise par l'attribution de leurs propres actions, celles qui attribuent leurs actions dans les conditions prévues aux articles L. 225-197-1 à L. 225-197-3 ainsi que celles qui entendent consentir des options d'achat d'actions à des salariés peuvent utiliser à cette fin tout ou partie des actions acquises dans les conditions prévues ci-dessus. Elles peuvent également leur proposer d'acquérir leurs propres actions dans les conditions prévues par les articles L. 3332-1 et suivants du code du travail.
Le nombre d'actions acquises par la société en vue de leur conservation et de leur remise ultérieure en paiement ou en échange dans le cadre d'une opération de fusion, de scission ou d'apport ne peut excéder 5 % de son capital. Ces dispositions sont applicables aux programmes de rachat soumis à l'approbation des assemblées générales se tenant à compter du 1er janvier 2006.
En cas d'annulation des actions achetées, la réduction de capital est autorisée ou décidée par l'assemblée générale extraordinaire qui peut déléguer au conseil d'administration ou au directoire, selon le cas, tous pouvoirs pour la réaliser. Un rapport spécial établi par les commissaires aux comptes sur l'opération envisagée est communiqué aux actionnaires de la société dans un délai fixé par décret en Conseil d'Etat.
Les dispositions du présent article sont applicables aux sociétés dont les titres ne sont pas admis aux négociations sur un marché réglementé aux fins mentionnées aux articles L. 3332-1 et suivants du code du travail. Dans ce cas, les dispositions de l'article L. 225-212 ne sont pas applicables.
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Article L225-209-1
L'assemblée générale d'une société dont les actions sont admises aux négociations sur un système multilatéral de négociation qui se soumet aux dispositions législatives ou réglementaires visant à protéger les investisseurs contre les opérations d'initiés, les manipulations de cours et la diffusion de fausses informations dans les conditions prévues par le règlement général de l'Autorité des marchés financiers, figurant sur une liste arrêtée par l'autorité dans des conditions fixées par son règlement général, peut autoriser le conseil d'administration ou le directoire, selon le cas, à acheter un nombre d'actions représentant jusqu'à 10 % du capital de la société aux fins de favoriser la liquidité des titres de la société.L'assemblée générale définit les modalités de l'opération ainsi que son plafond. Cette autorisation ne peut être donnée pour une durée supérieure à dix-huit mois. Le comité d'entreprise est informé de la résolution adoptée par l'assemblée générale.
Lorsque les actions sont rachetées pour favoriser la liquidité dans les conditions définies par le règlement général de l'Autorité des marchés financiers, le nombre d'actions pris en compte pour le calcul de la limite de 10 % prévue au premier alinéa correspond au nombre d'actions achetées, déduction faite du nombre d'actions revendues pendant la durée de l'autorisation.
Le conseil d'administration peut déléguer au directeur général ou, en accord avec ce dernier, à un ou plusieurs directeurs généraux délégués, les pouvoirs nécessaires pour réaliser l'opération mentionnée au premier alinéa . Le directoire peut déléguer à son président ou, avec son accord, à un ou plusieurs de ses membres, les pouvoirs nécessaires pour la réaliser. Les personnes désignées rendent compte au conseil d'administration ou au directoire de l'utilisation faite de ce pouvoir dans les conditions prévues par ces derniers.
L'acquisition, la cession ou le transfert de ces actions peut être effectué par tous moyens.
Article L225-210
La société ne peut posséder, directement ou par l'intermédiaire d'une personne agissant en son propre nom, mais pour le compte de la société, plus de 10 % du total de ses propres actions, ni plus de 10 % d'une catégorie déterminée. Ces actions doivent être mises sous la forme nominative, à l'exception des actions rachetées pour favoriser la liquidité des titres de la société, et entièrement libérées lors de l'acquisition.A défaut, les membres du conseil d'administration ou du directoire, selon le cas, sont tenus, dans les conditions prévues à l'article L. 225-251 et au premier alinéa de l'article L. 225-256 de libérer les actions.
L'acquisition d'actions de la société ne peut avoir pour effet d'abaisser les capitaux propres à un montant inférieur à celui du capital augmenté des réserves non distribuables.
La société doit disposer de réserves, autres que la réserve légale, d'un montant au moins égal à la valeur de l'ensemble des actions qu'elle possède.
Les actions possédées par la société ne donnent pas droit aux dividendes et sont privées de droits de vote.
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En cas d'augmentation du capital par souscription d'actions en numéraire, la société ne peut exercer par elle-même le droit préférentiel de souscription.L'assemblée générale peut décider de ne pas tenir compte de ces actions pour la détermination des droits préférentiels de souscription attachés aux autres actions.A défaut les droits attachés aux actions possédées par la société doivent être, avant la clôture du délai de souscription, soit vendus en bourse, soit répartis entre les actionnaires au prorata des droits de chacun.
Article L225-211
Des registres des achats et des ventes effectués en application des articles L. 225-208, L. 225-209 et L. 225-209-1 doivent être tenus, dans les conditions fixées par décret en Conseil d'Etat, par la société ou par la personne chargée du service de ses titres.
Le conseil d'administration ou le directoire, selon le cas, doit indiquer, dans le rapport prévu à l'article L. 225-100, le nombre des actions achetées et vendues au cours de l'exercice par application des articles L. 225-208, L. 225-209 et L. 225-209-1, les cours moyens des achats et des ventes, le montant des frais de négociation, le nombre des actions inscrites au nom de la société à la clôture de l'exercice et leur valeur évaluée au cours d'achat, ainsi que leur valeur nominale pour chacune des finalités, le nombre des actions utilisées, les éventuelles réallocations dont elles ont fait l'objet et la fraction du capital qu'elles représentent.
Article L225-212
Les sociétés doivent déclarer à l'Autorité des marchés financiers les opérations qu'elles envisagent d'effectuer en application des dispositions des articles L. 225-209 et L. 225-209-1. Elles rendent compte chaque mois à l'Autorité des marchés financiers des acquisitions, cessions, annulations et transferts qu'elles ont effectués.
L'Autorité des marchés financiers peut leur demander à ce sujet toutes les explications ou les justifications qu'elle juge nécessaires.
S'il n'est pas satisfait à ces demandes ou lorsqu'elle constate que ces transactions enfreignent les dispositions des articles L. 225-209 et L. 225-209-1, l'Autorité des marchés financiers peut prendre toutes mesures pour empêcher l'exécution des ordres que ces sociétés transmettent directement ou indirectement.
Article L225-213
Les dispositions des articles L. 225-206, L. 225-209 et L. 225-209-1 ne sont pas applicables aux actions entièrement libérées, acquises à la suite d'une transmission de patrimoine à titre universel ou encore à la suite d'une décision de justice.
Toutefois, les actions doivent être cédées dans un délai de deux ans à compter de la date d'acquisition lorsque la société possède plus de 10 % de son capital.A l'expiration de ce délai, elles doivent être annulées.
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Article L225-214
Les actions possédées en violation des articles L. 225-206 à L. 225-210 doivent être cédées dans un délai d'un an à compter de leur souscription ou de leur acquisition. A l'expiration de ce délai, elles doivent être annulées.
Article L225-215
Est interdite la prise en gage par la société de ses propres actions, directement ou par l'intermédiaire d'une personne agissant en son propre nom, mais pour le compte de la société.
Les actions prises en gage par la société doivent être restituées à leur propriétaire dans le délai d'un an. La restitution peut avoir lieu dans un délai de deux ans si le transfert du gage à la société résulte d'une transmission de patrimoine à titre universel ou d'une décision de justice. A défaut, le contrat de gage est nul de plein droit.
L'interdiction prévue au présent article n'est pas applicable aux opérations courantes des établissements de crédit.
Article L225-216
Une société ne peut avancer des fonds, accorder des prêts ou consentir une sûreté en vue de la souscription ou de l'achat de ses propres actions par un tiers.
Les dispositions du présent article ne s'appliquent ni aux opérations courantes des entreprises de crédit ni aux opérations effectuées en vue de l'acquisition par les salariés d'actions de la société, d'une de ses filiales ou d'une société comprise dans le champ d'un plan d'épargne de groupe prévu à l'article L. 444-3 du code du travail.
Article L225-217
Les articles L. 225-206 à L. 225-216 sont applicables aux certificats d'investissement.
Section 5 : Du contrôle des sociétés anonymes.
Article L225-218
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Le contrôle est exercé, dans chaque société, par un ou plusieurs commissaires aux comptes.
Article L225-228
Les commissaires aux comptes sont proposés à la désignation de l'assemblée générale par un projet de résolution émanant du conseil d'administration ou du conseil de surveillance ou, dans les conditions définies par la section 3 du présent chapitre, des actionnaires. Lorsque les actions de la société sont admises aux négociations sur un marché réglementé, le conseil d'administration choisit, sans que prennent part au vote le directeur général et le directeur général délégué, s'ils sont administrateurs, les commissaires aux comptes qu'il envisage de proposer.
Article L225-230
L'action mentionnée à l'article L. 823-6 peut être exercée par une association répondant aux conditions fixées par l'article L. 225-120.
Article L225-231
Une association répondant aux conditions fixées à l'article L. 225-120, ainsi que un ou plusieurs actionnaires représentant au moins 5 % du capital social, soit individuellement, soit en se groupant sous quelque forme que ce soit, peuvent poser par écrit au président du conseil d'administration ou au directoire des questions sur une ou plusieurs opérations de gestion de la société, ainsi que, le cas échéant, des sociétés qu'elle contrôle au sens de l'article L. 233-3. Dans ce dernier cas, la demande doit être appréciée au regard de l'intérêt du groupe. La réponse doit être communiquée aux commissaires aux comptes.
A défaut de réponse dans un délai d'un mois ou à défaut de communication d'éléments de réponse satisfaisants, ces actionnaires peuvent demander en référé la désignation d'un ou plusieurs experts chargés de présenter un rapport sur une ou plusieurs opérations de gestion.
Le ministère public, le comité d'entreprise et, dans les sociétés dont les actions sont admises aux négociations sur un marché réglementé, l'Autorité des marchés financiers peuvent également demander en référé la désignation d'un ou plusieurs experts chargés de présenter un rapport sur une ou plusieurs opérations de gestion.
S'il est fait droit à la demande, la décision de justice détermine l'étendue de la mission et des pouvoirs des experts. Elle peut mettre les honoraires à la charge de la société.
Le rapport est adressé au demandeur, au ministère public, au comité d'entreprise, au commissaire aux comptes et, selon le cas, au conseil d'administration ou au directoire et au conseil de
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surveillance ainsi que, dans les sociétés dont les actions sont admises aux négociations sur un marché réglementé, à l'Autorité des marchés financiers. Ce rapport doit, en outre, être annexé à celui établi par les commissaires aux comptes en vue de la prochaine assemblée générale et recevoir la même publicité.
Article L225-232
Un ou plusieurs actionnaires représentant au moins 5 % du capital social ou une association répondant aux conditions fixées à l'article L. 225-120 peuvent, deux fois par exercice, poser par écrit des questions au président du conseil d'administration ou au directoire sur tout fait de nature à compromettre la continuité de l'exploitation. La réponse est communiquée au commissaire aux comptes.
Article L225-233
L'action mentionnée à l'article L. 823-7 peut être exercée par une association répondant aux conditions fixées par l'article L. 225-120.
Article L225-235
Les commissaires aux comptes présentent, dans un rapport joint au rapport mentionné au deuxième alinéa de l'article L. 225-100, leurs observations sur le rapport mentionné, selon le cas, à l'article L. 225-37 ou à l'article L. 225-68, pour celles des procédures de contrôle interne et de gestion des risques qui sont relatives à l'élaboration et au traitement de l'information comptable et financière. Ils attestent l'établissement des autres informations requises aux articles L. 225-37 et L. 225-68.
Section 6 : De la transformation des sociétés anonymes.
Article L225-243
Toute société anonyme peut se transformer en société d'une autre forme si, au moment de la transformation, elle a au moins deux ans d'existence et si elle a établi et fait approuver par les actionnaires le bilan de ses deux premiers exercices.
Article L225-244
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La décision de transformation est prise sur le rapport des commissaires aux comptes de la société. Le rapport atteste que les capitaux propres sont au moins égaux au capital social.
La transformation est soumise, le cas échéant, à l'approbation des assemblées d'obligataires et de l'assemblée des porteurs de parts bénéficiaires ou de parts de fondateur.
La décision de transformation est soumise à publicité, dont les modalités sont fixées par décret en Conseil d'Etat.
Article L225-245
La transformation en société en nom collectif nécessite l'accord de tous les associés. En ce cas, les conditions prévues aux articles L. 225-243 et au premier alinéa de l'article L. 225-244 ne sont pas exigées.
La transformation en société en commandite simple ou par actions est décidée dans les conditions prévues pour la modification des statuts et avec l'accord de tous les associés qui acceptent d'être associés commandités.
La transformation en société à responsabilité limitée est décidée dans les conditions prévues pour la modification des statuts des sociétés de cette forme.
Article L225-245-1
En cas de transformation d'une société anonyme en société européenne, le premier alinéa de l'article L. 225-244 n'est pas applicable.
La société établit un projet de transformation de la société en société européenne. Ce projet est déposé au greffe du tribunal dans le ressort duquel la société est immatriculée et fait l'objet d'une publicité dont les modalités sont fixées par décret en Conseil d'Etat.
Un ou plusieurs commissaires à la transformation désignés par décision de justice établissent sous leur responsabilité un rapport destiné aux actionnaires de la société se transformant attestant que la société dispose d'actifs nets au moins équivalents au capital augmenté des réserves que la loi ou les statuts ne permettent pas de distribuer. Ils sont soumis aux incompatibilités prévues à l'article L. 822-11.
La transformation en société européenne est décidée selon les dispositions prévues aux articles L. 225-96 et L. 225-99.
Section 7 : De la dissolution des sociétés anonymes.
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Article L225-246
La dissolution anticipée de la société est prononcée par l'assemblée générale extraordinaire.
Article L225-247
Le tribunal de commerce peut, à la demande de tout intéressé, prononcer la dissolution de la société, si le nombre des actionnaires est réduit à moins de sept depuis plus d'un an.
Il peut accorder à la société un délai maximal de six mois pour régulariser la situation. Il ne peut prononcer la dissolution si, le jour où il statue sur le fond, cette régularisation a eu lieu.
Article L225-248
Si, du fait de pertes constatées dans les documents comptables, les capitaux propres de la société deviennent inférieurs à la moitié du capital social, le conseil d'administration ou le directoire, selon le cas, est tenu dans les quatre mois qui suivent l'approbation des comptes ayant fait apparaître cette perte, de convoquer l'assemblée générale extraordinaire à l'effet de décider s'il y a lieu à dissolution anticipée de la société.
Si la dissolution n'est pas prononcée, la société est tenue, au plus tard à la clôture du deuxième exercice suivant celui au cours duquel la constatation des pertes est intervenue et sous réserve des dispositions de l'article L. 224-2 de réduire son capital d'un montant au moins égal à celui des pertes qui n'ont pas pu être imputées sur les réserves, si, dans ce délai, les capitaux propres n'ont pas été reconstitués à concurrence d'une valeur au moins égale à la moitié du capital social.
Dans les deux cas, la résolution adoptée par l'assemblée générale est publiée selon les modalités fixées par décret en Conseil d'Etat.
A défaut de réunion de l'assemblée générale, comme dans le cas ou cette assemblée n'a pas pu délibérer valablement sur dernière convocation, tout intéressé peut demander en justice la dissolution de la société. Il en est de même si les dispositions du deuxième alinéa ci-dessus n'ont pas été appliquées. Dans tous les cas, le tribunal peut accorder à la société un délai maximal de six mois pour régulariser la situation. Il ne peut prononcer la dissolution, si, au jour où il statue sur le fond, cette régularisation a eu lieu.
Les dispositions du présent article ne sont pas applicables aux sociétés en procédure de sauvegarde ou de redressement judiciaire ou qui bénéficient d'un plan de sauvegarde ou de redressement judiciaire.
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Section 8 : De la responsabilité civile.
Article L225-249
Les fondateurs de la société auxquels la nullité est imputable et les administrateurs en fonction au moment où elle a été encourue peuvent être déclarés solidairement responsables du dommage résultant pour les actionnaires ou pour les tiers de l'annulation de la société.
La même responsabilité solidaire peut être prononcée contre ceux des actionnaires dont les apports ou les avantages n'ont pas été vérifiés et approuvés.
Article L225-250
L'action en responsabilité fondée sur l'annulation de la société se prescrit dans les conditions prévues au premier alinéa de l'article L. 235-13.
Article L225-251
Les administrateurs et le directeur général sont responsables individuellement ou solidairement selon le cas, envers la société ou envers les tiers, soit des infractions aux dispositions législatives ou réglementaires applicables aux sociétés anonymes, soit des violations des statuts, soit des fautes commises dans leur gestion.
Si plusieurs administrateurs ou plusieurs administrateurs et le directeur général ont coopéré aux mêmes faits, le tribunal détermine la part contributive de chacun dans la réparation du dommage.
Article L225-252
Outre l'action en réparation du préjudice subi personnellement, les actionnaires peuvent, soit individuellement, soit par une association répondant aux conditions fixées à l'article L. 225-120 soit en se groupant dans les conditions fixées par décret en Conseil d'Etat, intenter l'action sociale en responsabilité contre les administrateurs ou le directeur général. Les demandeurs sont habilités à poursuivre la réparation de l'entier préjudice subi par la société, à laquelle, le cas échéant, les dommages-intérêts sont alloués.
Article L225-253
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Est réputée non écrite toute clause des statuts ayant pour effet de subordonner l'exercice de l'action sociale à l'avis préalable ou à l'autorisation de l'assemblée générale, ou qui comporterait par avance renonciation à l'exercice de cette action.
Aucune décision de l'assemblée générale ne peut avoir pour effet d'éteindre une action en responsabilité contre les administrateurs ou contre le directeur général pour faute commise dans l'accomplissement de leur mandat.
Article L225-254
L'action en responsabilité contre les administrateurs ou le directeur général, tant sociale qu'individuelle, se prescrit par trois ans, à compter du fait dommageable ou s'il a été dissimulé, de sa révélation. Toutefois, lorsque le fait est qualifié crime, l'action se prescrit par dix ans.
Article L225-255
En cas d'ouverture d'une procédure de redressement ou de liquidation judiciaire en application des dispositions des titres III et IV du livre VI relatives au redressement et à la liquidation judiciaires des entreprises, les personnes visées par ces dispositions peuvent être rendues responsables du passif social et sont soumises aux interdictions et déchéances, dans les conditions prévues par celles-ci.
Article L225-256
Lorsque la société est soumise aux dispositions des articles L. 225-57 à L. 225-93, les membres du directoire sont soumis à la même responsabilité que les administrateurs dans les conditions prévues aux articles L. 225-249 à L. 225-255.
En cas d'ouverture d'une procédure de redressement ou de liquidation judiciaire en application des dispositions du titre II du livre VI relatives au redressement et à la liquidation judiciaires des entreprises, les personnes visées par ces dispositions peuvent être rendues responsables du passif social et sont soumises aux interdictions et déchéances, dans les conditions prévues par celles-ci.
Article L225-257
Les membres du conseil de surveillance sont responsables des fautes personnelles commises dans l'exécution de leur mandat. Ils n'encourent aucune responsabilité, en raison des actes de la gestion et de leur résultat. Ils peuvent être déclarés civilement responsables des délits commis par les membres du directoire si, en ayant eu connaissance, ils ne les ont pas révélés à l'assemblée générale.
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Les dispositions des articles L. 225-253 et L. 225-254 sont applicables.
Section 9 : Des sociétés anonymes à participation ouvrière.
Article L225-258
Il peut être stipulé dans les statuts de toute société anonyme que la société est " à participation ouvrière ".
Les sociétés dont les statuts ne contiennent pas cette stipulation peuvent se transformer en sociétés à participation ouvrière, en procédant conformément à l'article L. 225-96.
Les sociétés à participation ouvrière sont soumises, indépendamment des règles générales applicables aux sociétés anonymes, aux dispositions de la présente section.
Article L225-259
Si la société use de la faculté d'émettre des actions de travail, cette circonstance doit être mentionnée sur tous ses actes et documents destinés aux tiers par l'addition des mots " à participation ouvrière ".
Article L225-260
Les actions de la société se composent :
1° D'actions ou coupures d'actions de capital ;
2° D'actions dites " actions de travail ".
Article L225-261
Les actions de travail sont la propriété collective du personnel salarié (ouvriers et employés), constitué en société commerciale coopérative de main-d'oeuvre. Cette société de main-d'oeuvre comprend obligatoirement et exclusivement tous les salariés liés à l'entreprise depuis au moins un an et âgés de plus de dix-huit ans. La perte de l'emploi salarié prive le participant, sans indemnité, de tous ses droits dans la coopérative de main-d'oeuvre. La liquidation des droits qui ont été acquis dans l'entreprise par l'intéressé antérieurement à son départ, au cours du dernier exercice, est faite compte tenu du temps passé par lui au cours de cet exercice, et des dispositions de l'article L.
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225-269.
Lorsqu'une société se constitue, dès son début, sous la forme de société anonyme à participation ouvrière, les statuts de la société anonyme doivent prévoir la mise en réserve, jusqu'à la fin de l'année, des actions de travail attribuées à la collectivité des salariés. A la fin de ce délai, les actions sont remises à la coopérative de main-d'oeuvre légalement constituée.
Les dividendes attribués aux ouvriers et employés faisant partie de la coopérative ouvrière sont répartis entre eux conformément aux règles fixées par les statuts de la société ouvrière et aux décisions de ses assemblées générales. Toutefois, les statuts de la société anonyme doivent disposer que, préalablement à toute distribution de dividende, il est prélevé sur les bénéfices, au profit des porteurs d'actions de capital, une somme correspondant à celle que produirait, à l'intérêt qu'ils fixent, le capital versé.
En aucun cas les actions de travail ne peuvent être attribuées individuellement aux salariés de la société, membres de la coopérative de main-d'oeuvre.
Article L225-262
Les actions de travail sont nominatives, inscrites au nom de la société coopérative de main-d'oeuvre, inaliénables pendant toute la durée de la société à participation ouvrière.
Article L225-263
Les participants à la société coopérative de main-d'oeuvre sont représentés aux assemblées générales de la société anonyme par des mandataires élus par ces participants, réunis en assemblée générale de la coopérative.
Les mandataires élus doivent être choisis parmi les participants. Leur nombre est fixé par les statuts de la société anonyme.
Le nombre des voix dont disposent ces mandataires, à chaque assemblée générale de la société anonyme, est établi d'après le nombre de voix dont disposent les autres actionnaires présents ou représentés, en respectant la proportion entre les actions de travail et les actions de capital résultant de l'application des statuts de la société. Il est déterminé au début de chaque assemblée d'après les indications de la feuille de présence.
Les mandataires présents partagent également entre eux les voix qui leur sont ainsi attribuées, les plus âgés bénéficiant des voix restantes.
L'assemblée générale de la coopérative de main-d'oeuvre est réunie chaque année dans un délai fixé par les statuts et, à défaut de dispositions statutaires, dans un délai de quatre mois après la réunion de l'assemblée générale de la société anonyme.
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Article L225-264
Chaque participant dispose, à l'assemblée générale de la coopérative de main-d'oeuvre, d'une voix.
Les statuts peuvent toutefois attribuer plusieurs voix aux participants, en fonction du montant de leur salaire, dans la limite d'un chiffre maximum égal à autant de voix que le salaire annuel de l'intéressé, établi sur les comptes arrêtés à la clôture de l'exercice précédent, comprend de fois le chiffre du salaire le plus faible attribué par la société aux salariés âgés de plus de dix-huit ans.
Les statuts peuvent prévoir que les participants sont répartis par collèges regroupant chacun une catégorie de personnel, chaque collège élisant son ou ses mandataires et que l'accord de chaque collège, à des majorités que les statuts précisent, est nécessaire pour la modification des statuts de la coopérative et d'autres décisions énumérées par les statuts.
Article L225-265
L'assemblée générale de la coopérative de main-d'oeuvre ne délibère valablement que si, sur première convocation, les deux tiers au moins des participants de la coopérative sont présents ou représentés. Les statuts fixent le quorum requis pour l'assemblée réunie sur seconde convocation. A défaut de dispositions statutaires, ce quorum est de la moitié des participants de la coopérative, présents ou représentés.
L'assemblée générale statue à la majorité des voix exprimées. Dans le cas où il est procédé à un scrutin, il n'est pas tenu compte des bulletins blancs.
Toutefois, pour la modification des statuts de la coopérative et pour d'autres décisions énumérées par les statuts, le quorum ne peut être inférieur à la moitié des participants de la coopérative. De plus, ces mêmes décisions sont prises à la majorité des deux tiers des voix exprimées. Dans le cas où il est procédé à un scrutin, il n'est pas tenu compte des bulletins blancs.
Article L225-266
En cas d'action en justice, les mandataires élus à la dernière assemblée générale désignent un ou plusieurs d'entre eux pour représenter les participants. Si aucune élection n'a encore été faite, ou si aucun des mandataires élus ne fait partie de la coopérative de main-d'oeuvre, il est procédé à l'élection de mandataires spéciaux dans les formes et conditions prévues au premier alinéa de l'article L. 225-263 et aux articles L. 225-264 et L. 225-265.
Article L225-267
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Toutefois, les assemblées générales des sociétés anonymes à participation ouvrière délibérant sur des modifications à apporter aux statuts ou sur des propositions de continuation de la société au-delà du terme fixé pour sa durée ou de dissolution avant ce terme ne sont régulièrement constituées et ne peuvent valablement délibérer qu'autant qu'elles comprennent un nombre d'actionnaires représentant les trois quarts des actions de capital. Il peut en être décidé autrement par les statuts.
Dans le cas où une décision de l'assemblée générale comporte une modification dans les droits attachés aux actions de travail, cette décision n'est définitive qu'après avoir été ratifiée par une assemblée générale de la coopérative de main-d'oeuvre.
Article L225-268
Le conseil d'administration de la société anonyme à participation ouvrière comprend un ou plusieurs représentants de la société coopérative de main-d'oeuvre. Ces représentants sont élus par l'assemblée générale des actionnaires et choisis parmi les mandataires qui représentent la coopérative à cette assemblée générale. Le nombre en est fixé par le rapport qui existe entre les actions de travail et les actions de capital. Ils sont nommés pour le même temps que les autres administrateurs et sont comme eux rééligibles. Toutefois, leur mandat prend fin s'ils cessent d'être salariés de la société et, par suite, membres de la société. Si le conseil d'administration ne se compose que de trois membres, il doit comprendre tout au moins un représentant de ladite société coopérative.
Article L225-269
En cas de dissolution, l'actif social n'est réparti entre les actionnaires qu'après l'amortissement intégral des actions de capital.
La part représentative des actions de travail, conformément aux décisions prises par l'assemblée générale de la coopérative ouvrière convoquée à cet effet, est alors répartie entre les participants et anciens participants comptant au moins dix ans de services consécutifs dans les établissements de la société, ou tout au moins une durée de services sans interruption égale à la moitié de la durée de la société, et ayant quitté la société pour l'une des raisons suivantes : départ à la retraite volontaire ou d'office avec droit à pension, maladie ou invalidité entraînant l'inaptitude à l'emploi précédemment occupé, licenciement motivé par une suppression d'emploi ou une compression de personnel.
Toutefois, les anciens participants remplissant les conditions prévues à l'alinéa précédent ne figurent à la répartition que pour une part correspondant à la durée de leurs services réduite d'un dixième de son montant total par année écoulée depuis la cessation de leurs services.
La dissolution de la société anonyme amène la dissolution de la coopérative de main-d'oeuvre.
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Article L225-270
I. - Lorsqu'une société anonyme à participation ouvrière vient à se trouver dans la situation visée à l'article L. 225-248, et que sa dissolution n'est pas prononcée, l'assemblée générale extraordinaire peut décider, dans le délai fixé au deuxième alinéa du même article, une modification des statuts de la société entraînant la perte de la forme de société anonyme à participation ouvrière et, par la même, la dissolution de la société coopérative de main-d'oeuvre, nonobstant les dispositions du second alinéa de l'article L. 225-267 et toute disposition statutaire contraire.
Toutefois, la mise en oeuvre de cette décision est subordonnée à l'existence d'un accord collectif d'entreprise conclu avec une ou plusieurs organisations syndicales de salariés représentatives au sens de l'article L. 132-2 du code du travail et prévoyant la dissolution de la société coopérative de main-d'oeuvre. L'existence d'un accord collectif d'entreprise, incluant le même objet et conclu dans les mêmes conditions, antérieurement à l'entrée en vigueur de la loi n° 94-679 du 8 août 1994 portant diverses dispositions d'ordre économique et financier, répond aux dispositions du présent alinéa.
II. - Si la société coopérative de main-d'oeuvre est dissoute en application des dispositions du I ci-dessus, il est attribué aux participants et anciens participants mentionnés au deuxième alinéa de l'article L. 225-269 une indemnisation.
Le montant de cette indemnisation, déterminé en prenant en compte notamment la nature et la portée particulière des droits attachés aux actions de travail, est fixé par l'assemblée générale extraordinaire des actionnaires de la société anonyme, après consultation des mandataires de la société coopérative de main-d'oeuvre et au vu du rapport d'un expert indépendant désigné selon des modalités prévues par décret en Conseil d'Etat.
III. - Sur décision de l'assemblée générale extraordinaire des actionnaires de la société anonyme, l'indemnisation peut prendre la forme d'une attribution d'actions au bénéfice exclusif des participants et anciens participants mentionnés au deuxième alinéa de l'article L. 225-269.
Ces actions peuvent être créées par prélèvement sur les primes et réserves disponibles. Par dérogation aux dispositions de l'article L. 225-206, la société anonyme peut également acquérir ses propres actions afin de les attribuer, dans le délai d'un an à compter de leur acquisition, aux participants et anciens participants mentionnés au deuxième alinéa de l'article L. 225-269.
Les actions ainsi attribuées ne peuvent être cédées qu'à l'expiration d'un délai de trois ans à compter de la date de la dissolution de la société coopérative de main-d'oeuvre.
Nonobstant les dispositions de l'alinéa précédent, l'assemblée générale extraordinaire des actionnaires de la société anonyme peut décider de confier la gestion de ces actions à un fonds commun de placement d'entreprise, régi par les dispositions de l'article 21 de la loi n° 88-1201 du 23 décembre 1988 relative aux organismes de placement collectif en valeurs mobilières et portant création des fonds communs de créances, spécialement et exclusivement constitué à cet effet au plus tard le jour de l'attribution des actions. Dans ce cas, les parts du fonds et les actions qui en constituent l'actif ne peuvent être cédées qu'à l'expiration du délai mentionné à l'alinéa précédent.
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Le règlement de ce fonds est approuvé par la voie d'un accord collectif de travail.
IV. - Pour l'application des dispositions prévues par le présent article, les décisions prises par l'assemblée générale des actionnaires de la société anonyme s'imposent de plein droit à tout actionnaire et à tout porteur ou titulaire de titres obligataires ou donnant immédiatement ou à terme accès au capital.
V. - L'indemnisation visée au II est répartie entre les ayants droit, en tenant compte de la durée de leurs services dans la société, de l'ancienneté acquise dans la coopérative de main-d'oeuvre et de leur niveau de rémunération.
Après dissolution de la société coopérative de main-d'oeuvre, et dans un délai de six mois après délibération de l'assemblée générale extraordinaire des actionnaires de la société anonyme fixant le montant et la forme de l'indemnisation, cette répartition est effectuée conformément aux décisions prises par l'assemblée générale de la société coopérative sur proposition de ses mandataires. A défaut de répartition dans ce délai de six mois, celle-ci est effectuée par un mandataire liquidateur désigné par le président du tribunal de commerce du ressort du siège social de la société.
Les dispositions du troisième alinéa de l'article L. 225-269 sont applicables dans le cas visé au présent V.
VI. - L'indemnisation visée au II ou, le cas échéant, la valeur des actions attribuées à ce titre n'ont pas le caractère d'éléments de salaires pour l'application de la législation du travail et de la sécurité sociale. Elles ne sont pas retenues pour le calcul de l'assiette de tous impôts, taxes et prélèvements assis sur les salaires ou les revenus, sous réserve des dispositions de l'article 94A du code général des impôts.
Chapitre VI : Des sociétés en commandite par actions.
Article L226-1
La société en commandite par actions, dont le capital est divisé en actions, est constituée entre un ou plusieurs commandités, qui ont la qualité de commerçant et répondent indéfiniment et solidairement des dettes sociales, et des commanditaires, qui ont la qualité d'actionnaires et ne supportent les pertes qu'à concurrence de leurs apports. Le nombre des associés commanditaires ne peut être inférieur à trois.
Dans la mesure où elles sont compatibles avec les dispositions particulières prévues par le présent chapitre, les règles concernant les sociétés en commandite simple et les sociétés anonymes, à l'exception des articles L. 225-17 à L. 225-93, sont applicables aux sociétés en commandite par actions.
Article L226-2
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Le ou les premiers gérants sont désignés par les statuts. Ils accomplissent les formalités de constitution dont sont chargés les fondateurs de sociétés anonymes par les articles L. 225-2 à L. 225-16.
Au cours de l'existence de la société, sauf clause contraire des statuts, le ou les gérants sont désignés par l'assemblée générale ordinaire avec l'accord de tous les associés commandités.
Le gérant, associé ou non, est révoqué dans les conditions prévues par les statuts.
En outre, le gérant est révocable par le tribunal de commerce pour cause légitime, à la demande de tout associé ou de la société. Toute clause contraire est réputée non écrite.
Article L226-3
Les statuts doivent prévoir pour l'exercice des fonctions de gérant une limite d'âge qui, à défaut d'une disposition expresse, est fixée à soixante-cinq ans.
Toute nomination intervenue en violation des dispositions prévues à l'alinéa précédent est nulle.
Lorsqu'un gérant atteint la limite d'âge, il est réputé démissionnaire d'office.
Article L226-4
L'assemblée générale ordinaire nomme, dans les conditions fixées par les statuts, un conseil de surveillance, composé de trois actionnaires au moins.
A peine de nullité de sa nomination, un associé commandité ne peut être membre du conseil de surveillance. Les actionnaires ayant la qualité de commandité ne peuvent participer à la désignation des membres de ce conseil.
A défaut de disposition statutaire, les règles concernant la désignation et la durée du mandat des administrateurs de sociétés anonymes sont applicables.
Article L226-5
Les statuts doivent prévoir pour l'exercice des fonctions de membre du conseil de surveillance une limite d'âge s'appliquant soit à l'ensemble des membres du conseil de surveillance, soit à un pourcentage déterminé d'entre eux.
A défaut de disposition expresse dans les statuts, le nombre des membres du conseil de surveillance
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ayant atteint l'âge de soixante-dix ans ne peut être supérieur au tiers des membres du conseil de surveillance en fonctions.
Toute nomination intervenue en violation des dispositions prévues à l'alinéa précédent est nulle.
A défaut de disposition expresse dans les statuts prévoyant une autre procédure, lorsque la limitation statutaire ou légale fixée pour l'âge des membres du conseil de surveillance est dépassée, le membre du conseil de surveillance le plus âgé est réputé démissionnaire d'office.
Article L226-6
L'assemblée générale ordinaire désigne un ou plusieurs commissaires aux comptes.
Article L226-7
Le gérant est investi des pouvoirs les plus étendus pour agir en toute circonstance au nom de la société.
Dans les rapports avec les tiers, la société est engagée même par les actes du gérant qui ne relèvent pas de l'objet social, à moins qu'elle ne prouve que le tiers savait que l'acte dépassait cet objet ou qu'il ne pouvait l'ignorer compte tenu des circonstances, étant exclu que la seule publication des statuts suffise à constituer cette preuve.
Les clauses statutaires limitant les pouvoirs du gérant qui résultent du présent article sont inopposables aux tiers.
En cas de pluralité de gérants, ceux-ci détiennent séparément les pouvoirs prévus au présent article. L'opposition formée par un gérant aux actes d'un autre gérant est sans effet à l'égard des tiers, à moins qu'il ne soit établi qu'ils en ont eu connaissance.
Sous réserve des dispositions du présent chapitre, le gérant a les mêmes obligations que le conseil d'administration d'une société anonyme.
Article L226-8
Toute autre rémunération que celle prévue aux statuts ne peut être allouée au gérant que par l'assemblée générale ordinaire. Elle ne peut l'être qu'avec l'accord des commandités donné, sauf clause contraire, à l'unanimité.
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Article L226-9
Le conseil de surveillance assume le contrôle permanent de la gestion de la société. Il dispose, à cet effet, des mêmes pouvoirs que les commissaires aux comptes.
Il fait à l'assemblée générale ordinaire annuelle un rapport dans lequel il signale, notamment, les irrégularités et inexactitudes relevées dans les comptes annuels et, le cas échéant, les comptes consolidés de l'exercice.
Il est saisi en même temps que les commissaires aux comptes des documents mis à la disposition de ceux-ci.
Il peut convoquer l'assemblée générale des actionnaires.
Article L226-10
Les dispositions des articles L. 225-38 à L. 225-43 sont applicables aux conventions intervenant directement ou par personne interposée entre la société et l'un de ses gérants, l'un des membres de son conseil de surveillance, l'un de ses actionnaires disposant d'une fraction des droits de vote supérieure à 10 % ou, s'il s'agit d'une société actionnaire, la société la contrôlant au sens de l'article L. 233-3. De même, ces dispositions sont applicables aux conventions auxquelles une de ces personnes est indirectement intéressée.
Elles sont également applicables aux conventions intervenant entre une société et une entreprise si l'un des gérants ou l'un des membres du conseil de surveillance de la société est propriétaire, associé indéfiniment responsable, gérant, administrateur, directeur général, membre du directoire ou membre du conseil de surveillance de l'entreprise.
L'autorisation prévue au premier alinéa de l'article L. 225-38 est donnée par le conseil de surveillance.
Article L226-10-1
Lorsque les titres financiers de la société sont admis aux négociations sur un marché réglementé, le président du conseil de surveillance établit un rapport joint au rapport prévu aux articles L. 225-102, L. 225-102-1 et L. 233-26, qui comporte les informations mentionnées aux septième à neuvième alinéas de l'article L. 225-68.
Ce rapport est approuvé par le conseil de surveillance et est rendu public.
Les commissaires aux comptes présentent leurs observations sur ce rapport pour celles des procédures de contrôle interne et de gestion des risques qui sont relatives à l'élaboration et au traitement de l'information comptable et financière, dans les conditions prévues à l'article L.
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225-235. Ils attestent l'établissement des autres informations requises dans les mêmes conditions.
Article L226-11
La modification des statuts exige, sauf clause contraire, l'accord de tous les commandités.
La modification des statuts résultant d'une augmentation de capital est constatée par les gérants.
Article L226-12
Les dispositions des articles L. 225-109 et L. 225-249 sont applicables aux gérants et membres du conseil de surveillance.
Les dispositions des articles L. 225-52, L. 225-251 et L. 225-255 sont applicables aux gérants, même non associés.
Article L226-13
Les membres du conseil de surveillance n'encourent aucune responsabilité, en raison des actes de la gestion et de leur résultat.
Ils peuvent être déclarés civilement responsables des délits commis par les gérants si, en ayant eu connaissance, ils ne les ont pas révélés à l'assemblée générale. Ils sont responsables des fautes personnelles commises dans l'exécution de leur mandat.
Article L226-14
La transformation de la société en commandite par actions en société anonyme ou en société à responsabilité limitée est décidée par l'assemblée générale extraordinaire des actionnaires, avec l'accord de la majorité des associés commandités.
Chapitre VII : Des sociétés par actions simplifiées.
Article L227-1
Une société par actions simplifiée peut être instituée par une ou plusieurs personnes qui ne supportent les pertes qu'à concurrence de leur apport.
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Lorsque cette société ne comporte qu'une seule personne, celle-ci est dénommée "associé unique". L'associé unique exerce les pouvoirs dévolus aux associés lorsque le présent chapitre prévoit une prise de décision collective.
Dans la mesure où elles sont compatibles avec les dispositions particulières prévues par le présent chapitre, les règles concernant les sociétés anonymes, à l'exception des articles L. 224-2, L. 225-17 à L. 225-126, L. 225-243 et du I de l'article L. 233-8, sont applicables à la société par actions simplifiée. Pour l'application de ces règles, les attributions du conseil d'administration ou de son président sont exercées par le président de la société par actions simplifiée ou celui ou ceux de ses dirigeants que les statuts désignent à cet effet.
La société par actions simplifiée peut émettre des actions inaliénables résultant d'apports en industrie tels que définis à l'article 1843-2 du code civil. Les statuts déterminent les modalités de souscription et de répartition de ces actions. Ils fixent également le délai au terme duquel, après leur émission, ces actions font l'objet d'une évaluation dans les conditions prévues à l'article L. 225-8.
La société par actions simplifiée dont l'associé unique, personne physique, assume personnellement la présidence est soumise à des formalités de publicité allégées déterminées par décret en Conseil d'Etat. Ce décret prévoit les conditions de dispense d'insertion au Bulletin officiel des annonces civiles et commerciales.
Article L227-2
La société par actions simplifiée ne peut procéder à une offre au public de titres financiers ou à l'admission aux négociations sur un marché réglementé de ses actions. Elle peut néanmoins procéder aux offres définies aux 2 et 3 du I et au II de l'article L. 411-2 du code monétaire et financier .
Article L227-3
La décision de transformation en société par actions simplifiée est prise à l'unanimité des associés.
Article L227-4
En cas de réunion en une seule main de toutes les actions d'une société par actions simplifiée, les dispositions de l'article 1844-5 du code civil relatives à la dissolution judiciaire ne sont pas applicables.
Article L227-5
Les statuts fixent les conditions dans lesquelles la société est dirigée.
Article L227-6
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La société est représentée à l'égard des tiers par un président désigné dans les conditions prévues par les statuts. Le président est investi des pouvoirs les plus étendus pour agir en toute circonstance au nom de la société dans la limite de l'objet social.
Dans les rapports avec les tiers, la société est engagée même par les actes du président qui ne relèvent pas de l'objet social, à moins qu'elle ne prouve que le tiers savait que l'acte dépassait cet objet ou qu'il ne pouvait l'ignorer compte tenu des circonstances, étant exclu que la seule publication des statuts suffise à constituer cette preuve.
Les statuts peuvent prévoir les conditions dans lesquelles une ou plusieurs personnes autres que le président, portant le titre de directeur général ou de directeur général délégué, peuvent exercer les pouvoirs confiés à ce dernier par le présent article.
Les dispositions statutaires limitant les pouvoirs du président sont inopposables aux tiers.
Article L227-7
Lorsqu'une personne morale est nommée président ou dirigeant d'une société par actions simplifiée, les dirigeants de ladite personne morale sont soumis aux mêmes conditions et obligations et encourent les mêmes responsabilités civile et pénale que s'ils étaient président ou dirigeant en leur nom propre, sans préjudice de la responsabilité solidaire de la personne morale qu'ils dirigent.
Article L227-8
Les règles fixant la responsabilité des membres du conseil d'administration et du directoire des sociétés anonymes sont applicables au président et aux dirigeants de la société par actions simplifiée.
Article L227-9
Les statuts déterminent les décisions qui doivent être prises collectivement par les associés dans les formes et conditions qu'ils prévoient.
Toutefois, les attributions dévolues aux assemblées générales extraordinaires et ordinaires des sociétés anonymes, en matière d'augmentation, d'amortissement ou de réduction de capital, de fusion, de scission, de dissolution, de transformation en une société d'une autre forme, de nomination de commissaires aux comptes, de comptes annuels et de bénéfices sont, dans les conditions prévues par les statuts, exercées collectivement par les associés.
Dans les sociétés ne comprenant qu'un seul associé, le rapport de gestion, les comptes annuels et le cas échéant les comptes consolidés sont arrêtés par le président. L'associé unique approuve les comptes, après rapport du commissaire aux comptes s'il en existe un, dans le délai de six mois à
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compter de la clôture de l'exercice.L'associé unique ne peut déléguer ses pouvoirs. Ses décisions sont répertoriées dans un registre. Lorsque l'associé unique, personne physique, assume personnellement la présidence de la société, le dépôt, dans le même délai, au registre du commerce et des sociétés de l'inventaire et des comptes annuels dûment signés vaut approbation des comptes sans que l'associé unique ait à porter au registre prévu à la phrase précédente le récépissé délivré par le greffe du tribunal de commerce.
Les décisions prises en violation des dispositions du présent article peuvent être annulées à la demande de tout intéressé.
Article L227-9-1
Les associés peuvent nommer un ou plusieurs commissaires aux comptes dans les conditions prévues à l'article L. 227-9.
Sont tenues de désigner au moins un commissaire aux comptes les sociétés par actions simplifiées qui dépassent, à la clôture d'un exercice social, deux des seuils suivants, fixés par décret en Conseil d'État : le total de leur bilan, le montant de leur chiffre d'affaires hors taxe ou le nombre moyen de leurs salariés au cours de l'exercice.
Sont également tenues de désigner au moins un commissaire aux comptes les sociétés par actions simplifiées qui contrôlent, au sens des II et III de l'article L. 233-16, une ou plusieurs sociétés, ou qui sont contrôlées, au sens des mêmes II et III, par une ou plusieurs sociétés.
Même si les conditions prévues aux deux alinéas précédents ne sont pas atteintes, la nomination d'un commissaire aux comptes peut être demandée en justice par un ou plusieurs associés représentant au moins le dixième du capital.
Article L227-10
Le commissaire aux comptes ou, s'il n'en a pas été désigné, le président de la société présente aux associés un rapport sur les conventions intervenues directement ou par personne interposée entre la société et son président, l'un de ses dirigeants, l'un de ses actionnaires disposant d'une fraction des droits de vote supérieure à 10 % ou, s'il s'agit d'une société actionnaire, la société la contrôlant au sens de l'article L. 233-3.
Les associés statuent sur ce rapport.
Les conventions non approuvées, produisent néanmoins leurs effets, à charge pour la personne intéressée et éventuellement pour le président et les autres dirigeants d'en supporter les conséquences dommageables pour la société.
Par dérogation aux dispositions du premier alinéa, lorsque la société ne comprend qu'un seul associé, il est seulement fait mention au registre des décisions des conventions intervenues directement ou par personnes interposées entre la société et son dirigeant.
Article L227-11
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Sauf lorsqu'en raison de leur objet ou de leurs implications financières, elles ne sont significatives pour aucune des parties, les conventions portant sur les opérations courantes et conclues à des conditions normales sont communiquées au commissaire aux comptes. Tout associé a le droit d'en obtenir communication.
Article L227-12
Les interdictions prévues à l'article L. 225-43 s'appliquent, dans les conditions déterminées par cet article, au président et aux dirigeants de la société.
Article L227-13
Les statuts de la société peuvent prévoir l'inaliénabilité des actions pour une durée n'excédant pas dix ans.
Article L227-14
Les statuts peuvent soumettre toute cession d'actions à l'agrément préalable de la société.
Article L227-15
Toute cession effectuée en violation des clauses statutaires est nulle.
Article L227-16
Dans les conditions qu'ils déterminent, les statuts peuvent prévoir qu'un associé peut être tenu de céder ses actions.
Ils peuvent également prévoir la suspension des droits non pécuniaires de cet associé tant que celui-ci n'a pas procédé à cette cession.
Article L227-17
Les statuts peuvent prévoir que la société associée dont le contrôle est modifié au sens de l'article L.
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233-3 doit, dès cette modification, en informer la société par actions simplifiée. Celle-ci peut décider, dans les conditions fixées par les statuts, de suspendre l'exercice des droits non pécuniaires de cet associé et de l'exclure.
Les dispositions de l'alinéa précédent peuvent s'appliquer, dans les mêmes conditions, à l'associé qui a acquis cette qualité à la suite d'une opération de fusion, de scission ou de dissolution.
Article L227-18
Si les statuts ne précisent pas les modalités du prix de cession des actions lorsque la société met en oeuvre une clause introduite en application des articles L. 227-14, L. 227-16 et L. 227-17, ce prix est fixé par accord entre les parties ou, à défaut, déterminé dans les conditions prévues à l'article 1843-4 du code civil.
Lorsque les actions sont rachetées par la société, celle-ci est tenue de les céder dans un délai de six mois ou de les annuler.
Article L227-19
Les clauses statutaires visées aux articles L. 227-13, L. 227-14, L. 227-16 et L. 227-17 ne peuvent être adoptées ou modifiées qu'à l'unanimité des associés.
Article L227-20
Les articles L. 227-13 à L. 227-19 ne sont pas applicables aux sociétés ne comprenant qu'un seul associé.
Chapitre VIII : Des valeurs mobilières émises par les sociétés par actions.
Section 1 : Dispositions communes aux valeurs mobilières
Article L228-1
Les sociétés par actions émettent toutes valeurs mobilières dans les conditions du présent livre.
Les valeurs mobilières sont des titres financiers au sens de l'article L. 211-1 du code monétaire et
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financier, qui confèrent des droits identiques par catégorie.
Les valeurs mobilières émises par les sociétés par actions revêtent la forme de titres au porteur ou de titres nominatifs, sauf pour les sociétés pour lesquelles la loi ou les statuts imposent la seule forme nominative, pour tout ou partie du capital.
Nonobstant toute convention contraire, tout propriétaire dont les titres font partie d'une émission comprenant à la fois des titres au porteur et des titres nominatifs a la faculté de convertir ses titres dans l'autre forme.
Toutefois, la conversion des titres nominatifs n'est pas possible s'agissant des sociétés pour lesquelles la loi ou les statuts imposent la forme nominative pour tout ou partie du capital.
Ces valeurs mobilières, quelle que soit leur forme, doivent être inscrites en compte au nom de leur propriétaire, dans les conditions prévues aux articles L. 211-3 et L. 211-4 du code monétaire et financier.
Toutefois, lorsque des titres de capital de la société ont été admis aux négociations sur un marché réglementé et que leur propriétaire n'a pas son domicile sur le territoire français, au sens de l'article 102 du code civil, tout intermédiaire peut être inscrit pour le compte de ce propriétaire. Cette inscription peut être faite sous la forme d'un compte collectif ou en plusieurs comptes individuels correspondant chacun à un propriétaire.
L'intermédiaire inscrit est tenu, au moment de l'ouverture de son compte auprès soit de la société émettrice, soit de l'intermédiaire mentionné à l'article L. 211-3 du code monétaire et financier qui tient le compte-titres, de déclarer, dans les conditions fixées par décret, sa qualité d'intermédiaire détenant des titres pour le compte d'autrui.
En cas de cession de valeurs mobilières admises aux opérations d'un dépositaire central ou livrées dans un système de règlement et de livraison mentionné à l'article L. 330-1 du code monétaire et financier, le transfert de propriété s'effectue dans les conditions prévues à l'article L. 211-17 de ce code. Dans les autres cas, le transfert de propriété résulte de l'inscription des valeurs mobilières au compte de l'acheteur, dans des conditions fixées par décret en Conseil d'Etat.
Article L228-2
I.-En vue de l'identification des détenteurs des titres au porteur, les statuts peuvent prévoir que la société émettrice est en droit de demander à tout moment, contre rémunération à sa charge, au dépositaire central qui assure la tenue du compte émission de ses titres, selon le cas, le nom ou la dénomination, la nationalité, l'année de naissance ou l'année de constitution et l'adresse des détenteurs de titres conférant immédiatement ou à terme le droit de vote dans ses propres assemblées d'actionnaires ainsi que la quantité de titres détenue par chacun d'eux et, le cas échéant, les restrictions dont les titres peuvent être frappés.
Les renseignements sont recueillis par le dépositaire central susmentionné auprès des établissements teneurs de comptes qui lui sont affiliés, lesquels les lui communiquent dans un délai fixé par décret en Conseil d'Etat. Dans les cinq jours ouvrables qui en suivent la réception, ces renseignements sont portés par le dépositaire central à la connaissance de la société.
Lorsque le délai fixé par décret n'est pas respecté, ou lorsque les renseignements fournis par l'établissement teneur de comptes sont incomplets ou erronés, le dépositaire central peut demander
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l'exécution de l'obligation de communication, sous astreinte, au président du tribunal de grande instance statuant en référé.
II.-La société émettrice, après avoir suivi la procédure prévue au I et au vu de la liste transmise par le dépositaire central susmentionné, a la faculté de demander, soit par l'entremise de ce dépositaire central soit directement, dans les mêmes conditions et sous peine des sanctions prévues à l'article L. 228-3-2, aux personnes figurant sur cette liste et dont la société estime qu'elles pourraient être inscrites pour compte de tiers les informations concernant les propriétaires des titres prévues au I.
Ces personnes sont tenues, lorsqu'elles ont la qualité d'intermédiaire, de révéler l'identité des propriétaires de ces titres.L'information est fournie directement à l'intermédiaire mentionné à l'article L. 211-3 du code monétaire et financier qui tient le compte-titres, à charge pour ce dernier de la communiquer, selon le cas, à la société émettrice ou au dépositaire central susmentionné.
III.-Les renseignements obtenus par la société ne peuvent être cédés par celle-ci, même à titre gratuit. Toute violation de cette disposition est punie des peines prévues à l'article 226-13 du code pénal.
Article L228-3
S'il s'agit de titres de forme nominative, donnant immédiatement ou à terme accès au capital, l'intermédiaire inscrit dans les conditions prévues à l'article L. 228-1 est tenu, dans un délai fixé par décret en Conseil d'Etat, de révéler l'identité des propriétaires de ces titres, ainsi que la quantité de titres détenus par chacun d'eux sur simple demande de la société émettrice ou de son mandataire, laquelle peut être présentée à tout moment.
Les droits spéciaux attachés aux actions nominatives, notamment ceux prévus aux articles L. 225-123 et L. 232-14, ne peuvent être exercés par un intermédiaire inscrit dans les conditions prévues à l'article L. 228-1 que si les renseignements qu'il fournit permettent le contrôle des conditions requises pour l'exercice de ces droits.
Article L228-3-1
I. - Aussi longtemps que la société émettrice estime que certains détenteurs dont l'identité lui a été communiquée le sont pour le compte de tiers propriétaires des titres, elle est en droit de demander à ces détenteurs de révéler l'identité des propriétaires de ces titres, ainsi que la quantité de titres détenus par chacun d'eux, dans les conditions prévues respectivement au premier alinéa du II de l'article L. 228-2 pour les titres au porteur et au premier alinéa de l'article L. 228-3 pour les titres nominatifs.
II. - A l'issue de ces opérations, et sans préjudice des obligations de déclaration de participations significatives imposées par les articles L. 233-7, L. 233-12 et L. 233-13, la société émettrice peut demander à toute personne morale propriétaire de ses actions et possédant des participations dépassant le quarantième du capital ou des droits de vote de lui faire connaître l'identité des personnes détenant directement ou indirectement plus du tiers du capital social de cette personne
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morale ou des droits de vote qui sont exercés aux assemblées générales de celle-ci.
Article L228-3-2
L'intermédiaire qui a satisfait aux obligations prévues aux septième et huitième alinéas de l'article L. 228-1 peut, en vertu d'un mandat général de gestion des titres, transmettre pour une assemblée le vote ou le pouvoir d'un propriétaire d'actions tel qu'il a été défini au troisième alinéa du même article.
Avant de transmettre des pouvoirs ou des votes en assemblée générale, l'intermédiaire inscrit conformément à l'article L. 228-1 est tenu, à la demande de la société émettrice ou de son mandataire, de fournir la liste des propriétaires non résidents des actions auxquelles ces droits de vote sont attachés ainsi que la quantité d'actions détenues par chacun d'eux. Cette liste est fournie dans les conditions prévues, selon le cas, aux articles L. 228-2 ou L. 228-3.
Le vote ou le pouvoir émis par un intermédiaire qui soit ne s'est pas déclaré comme tel en vertu du huitième alinéa de l'article L. 228-1 ou du deuxième alinéa du présent article, soit n'a pas révélé l'identité des propriétaires des titres en vertu des articles L. 228-2 ou L. 228-3, ne peut être pris en compte.
Article L228-3-3
Lorsque la personne qui fait l'objet d'une demande en vertu des articles L. 228-2 à L. 228-3-1 n'a pas transmis les informations dans les délais prévus à ces articles ou a transmis des renseignements incomplets ou erronés relatifs soit à sa qualité, soit aux propriétaires des titres, soit à la quantité de titres détenus par chacun d'eux, les actions ou les titres donnant accès immédiatement ou à terme au capital et pour lesquels cette personne a été inscrite en compte sont privés des droits de vote pour toute assemblée d'actionnaires qui se tiendrait jusqu'à la date de régularisation de l'identification, et le paiement du dividende correspondant est différé jusqu'à cette date.
En outre, au cas où la personne inscrite méconnaîtrait sciemment les dispositions des articles L. 228-1 à L. 228-3-1, le tribunal dans le ressort duquel la société a son siège social peut, sur demande de la société ou d'un ou plusieurs actionnaires détenant au moins 5 % du capital, prononcer la privation totale ou partielle, pour une durée totale ne pouvant excéder cinq ans, des droits de vote attachés aux actions ayant fait l'objet de l'interrogation et, éventuellement et pour la même période, du dividende correspondant.
Article L228-3-4
Toute personne participant à un titre quelconque à la direction ou à la gestion du dépositaire central d'instruments financiers ainsi que toute personne employée par celui-ci, par la société émettrice ou par l'intermédiaire inscrit, et ayant dans le cadre de son activité professionnelle connaissance des renseignements mentionnés aux articles L. 228-1 à L. 228-3-2 est tenue au secret professionnel dans les conditions et sous les peines prévues aux articles 226-13 et 226-14 du code pénal. Le secret
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professionnel ne peut être opposé ni à l'Autorité des marchés financiers ni à l'autorité judiciaire.
Article L228-4
A peine de nullité, l'émission de parts bénéficiaires ou parts de fondateur est interdite.
Toutefois, les parts bénéficiaires ou parts de fondateurs émises avant le 1er avril 1967 demeurent régies par les textes les concernant.
Article L228-5
A l'égard de la société, les titres sont indivisibles, sous réserve de l'application des articles L. 225-110 et L. 225-118.
Article L228-6
Nonobstant toutes stipulations statutaires contraires, les sociétés qui ont effectué soit des échanges de titres consécutifs à une opération de fusion ou de scission, de réduction de capital, de regroupement ou de division et de conversion obligatoire de titres au porteur en titres nominatifs, soit des distributions de titres imputées sur les réserves ou liées à une réduction de capital, soit des distributions ou attributions d'actions gratuites peuvent, sur simple décision du conseil d'administration, du directoire ou des gérants, vendre selon des modalités fixées par décret en Conseil d'Etat les titres dont les ayants droit n'ont pas demandé la délivrance, à la condition d'avoir procédé, deux ans au moins à l'avance, à une publicité selon des modalités fixées par ledit décret.
A dater de cette vente, les titres anciens ou les anciens droits aux distributions ou attributions sont, en tant que de besoin, annulés et leurs titulaires ne peuvent plus prétendre qu'à la répartition en numéraire du produit net de la vente des titres non réclamés.
Article L228-6-1
Dans les sociétés dont les titres sont admis aux négociations sur un marché réglementé, l'assemblée générale extraordinaire des actionnaires ayant autorisé une fusion ou une scission peut décider qu'à l'issue d'une période qui ne peut excéder une limite fixée par décret en Conseil d'Etat, suivant la date d'inscription à leur compte du nombre entier d'actions attribuées, une vente globale des actions non attribuées correspondant aux droits formant rompus aura lieu, selon des modalités fixées par ce décret, en vue de la répartition des fonds entre les intéressés.
Article L228-6-2
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Les droits non pécuniaires attachés aux valeurs mobilières inscrites en compte joint sont exercés par l'un ou l'autre des cotitulaires dans les conditions déterminées par la convention d'ouverture de compte.
Article L228-6-3
Les titres dont les titulaires, malgré le respect des formalités de convocation aux assemblées générales, sont inconnus du teneur de compte ou n'ont pas été atteints par les convocations, depuis dix années révolues, peuvent être vendus selon la procédure prévue à l'article L. 228-6. Cette vente a lieu à l'expiration d'un délai fixé, par décret en Conseil d'Etat, à compter de la publicité prévue à cet article, à condition que le teneur de compte ait, pendant ce délai, accompli toutes les diligences nécessaires, dans les conditions fixées par ce même décret, pour entrer en contact avec les titulaires ou leurs ayants droit.
Section 2 : Des actions.
Article L228-7
Les actions de numéraire sont celles dont le montant est libéré en espèces ou par compensation, celles qui sont émises par suite d'une incorporation au capital de réserves, bénéfices ou primes d'émission, et celles dont le montant résulte pour partie d'une incorporation de réserves, bénéfices ou primes d'émission et pour partie d'une libération en espèces. Ces dernières doivent être intégralement libérées lors de la souscription.
Sous réserve des règles spécifiques applicables aux actions résultant d'une fusion ou d'une scission, toutes les autres actions sont des actions d'apport.
Article L228-8
Le montant nominal des actions ou coupures d'action peut être fixé par les statuts. Cette option s'applique alors à toutes les émissions d'actions.
Article L228-9
L'action de numéraire est nominative jusqu'à son entière libération.
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Article L228-10
Les actions ne sont négociables qu'après l'immatriculation de la société au registre du commerce et des sociétés. En cas d'augmentation de capital, les actions sont négociables à compter de la réalisation de celle-ci.
La négociation de promesse d'actions est interdite, à moins qu'il ne s'agisse d'actions à créer dont l'admission sur un marché réglementé a été demandée, ou à l'occasion d'une augmentation du capital d'une société dont les actions anciennes sont déjà admises aux négociations sur un marché réglementé. En ce cas, la négociation n'est valable que si elle est effectuée sous la condition suspensive de la réalisation de l'augmentation de capital. A défaut d'indication expresse, cette condition est présumée.
Article L228-11
Lors de la constitution de la société ou au cours de son existence, il peut être créé des actions de préférence, avec ou sans droit de vote, assorties de droits particuliers de toute nature, à titre temporaire ou permanent. Ces droits sont définis par les statuts dans le respect des dispositions des articles L. 225-10 et L. 225-122 à L. 225-125.
Le droit de vote peut être aménagé pour un délai déterminé ou déterminable. Il peut être suspendu pour une durée déterminée ou déterminable ou supprimé.
Les actions de préférence sans droit de vote ne peuvent représenter plus de la moitié du capital social, et dans les sociétés dont les actions sont admises aux négociations sur un marché réglementé, plus du quart du capital social.
Toute émission ayant pour effet de porter la proportion au-delà de cette limite peut être annulée.
Par dérogation aux articles L. 225-132 et L. 228-91, les actions de préférence sans droit de vote à l'émission auxquelles est attaché un droit limité de participation aux dividendes, aux réserves ou au partage du patrimoine en cas de liquidation sont privées de droit préférentiel de souscription pour toute augmentation de capital en numéraire, sous réserve de stipulations contraires des statuts.
Article L228-12
L'assemblée générale extraordinaire des actionnaires est seule compétente pour décider l'émission, le rachat et la conversion des actions de préférence au vu d'un rapport spécial des commissaires aux comptes. Elle peut déléguer ce pouvoir dans les conditions fixées par les articles L. 225-129 à L. 225-129-6.
Les modalités de rachat ou de conversion des actions de préférence peuvent également être fixées dans les statuts.
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A tout moment de l'exercice en cours et au plus tard lors de la première réunion suivant la clôture de celui-ci, le conseil d'administration ou le directoire constate, s'il y a lieu, le nombre et le montant nominal des actions issues de la conversion des actions de préférence, au cours de l'exercice écoulé, et apporte les modifications nécessaires aux clauses des statuts relatives au montant du capital social et au nombre des titres qui le composent.
Le président du directoire ou le directeur général peut, sur délégation du directoire ou du conseil d'administration, procéder à ces opérations à tout moment de l'exercice et au plus tard dans le délai fixé par décret en Conseil d'Etat.
Article L228-13
Les droits particuliers mentionnés à l'article L. 228-11 peuvent être exercés dans la société qui possède directement ou indirectement plus de la moitié du capital de l'émettrice ou dans la société dont l'émettrice possède directement ou indirectement plus de la moitié du capital.
L'émission doit alors être autorisée par l'assemblée générale extraordinaire de la société appelée à émettre des actions de préférence et par celle de la société au sein de laquelle les droits sont exercés.
Les commissaires aux comptes des sociétés intéressées doivent établir un rapport spécial.
Article L228-14
Les actions de préférence peuvent être converties en actions ordinaires ou en actions de préférence d'une autre catégorie.
En cas de conversion d'actions de préférence en actions aboutissant à une réduction de capital non motivée par des pertes, les créanciers dont la créance est antérieure à la date du dépôt au greffe du procès-verbal de délibération de l'assemblée générale, ou du conseil d'administration ou du directoire en cas de délégation, peuvent former opposition à la conversion dans le délai et suivant les modalités fixés par décret en Conseil d'Etat.
Les opérations de conversion ne peuvent commencer pendant le délai d'opposition ni, le cas échéant, avant qu'il ait été statué en première instance sur cette opposition.
Article L228-15
La création de ces actions donne lieu à l'application des articles L. 225-8, L. 225-14, L. 225-147 et L. 225-148 relatifs aux avantages particuliers lorsque les actions sont émises au profit d'un ou plusieurs actionnaires nommément désignés. Dans ce cas, le commissaire aux apports prévu par ces articles est un commissaire aux comptes n'ayant pas réalisé depuis cinq ans et ne réalisant pas de mission au sein de la société.
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Les titulaires d'actions devant être converties en actions de préférence de la catégorie à créer ne peuvent, à peine de nullité de la délibération, prendre part au vote sur la création de cette catégorie et les actions qu'ils détiennent ne sont pas prises en compte pour le calcul du quorum et de la majorité, à moins que l'ensemble des actions ne fassent l'objet d'une conversion en actions de préférence.
Par dérogation au premier alinéa, lorsque l'émission porte sur des actions de préférence relevant d'une catégorie déjà créée, l'évaluation des avantages particuliers qui en résultent est faite dans le rapport spécial mentionné à l'article L. 228-12.
Article L228-16
En cas de modification ou d'amortissement du capital, l'assemblée générale extraordinaire détermine les incidences de ces opérations sur les droits des porteurs d'actions de préférence.
Ces incidences peuvent également être constatées dans les statuts.
Article L228-17
En cas de fusion ou de scission, les actions de préférence peuvent être échangées contre des actions des sociétés bénéficiaires du transfert de patrimoine comportant des droits particuliers équivalents, ou selon une parité d'échange spécifique tenant compte des droits particuliers abandonnés.
En l'absence d'échange contre des actions conférant des droits particuliers équivalents, la fusion ou la scission est soumise à l'approbation de l'assemblée spéciale prévue à l'article L. 225-99.
Article L228-18
Le dividende distribué, le cas échéant, aux titulaires d'actions de préférence peut être accordé en titres de capital, selon les modalités fixées par l'assemblée générale extraordinaire ou les statuts.
Article L228-19
Les porteurs d'actions de préférence, constitués en assemblée spéciale, ont la faculté de donner mission à l'un des commissaires aux comptes de la société d'établir un rapport spécial sur le respect par la société des droits particuliers attachés aux actions de préférence. Ce rapport est diffusé à ces porteurs à l'occasion d'une assemblée spéciale.
Article L228-21
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Les actions demeurent négociables après la dissolution de la société et jusqu'à la clôture de la liquidation.
Article L228-22
L'annulation de la société ou d'une émission d'actions n'entraîne pas la nullité des négociations intervenues antérieurement à la décision d'annulation, si les titres sont réguliers en la forme. Toutefois, l'acquéreur peut exercer un recours en garantie contre son vendeur.
Article L228-23
Dans une société dont les actions ne sont pas admises aux négociations sur un marché réglementé, la cession d'actions ou de valeurs mobilières donnant accès au capital, à quelque titre que ce soit, peut être soumise à l'agrément de la société par une clause des statuts.
Une clause d'agrément ne peut être stipulée que si les titres sont nominatifs en vertu de la loi ou des statuts.
Cette clause est écartée en cas de succession, de liquidation du régime matrimonial ou de cession, soit à un conjoint, soit à un ascendant ou à un descendant.
Les dispositions de l'alinéa précédent ne sont pas applicables lorsqu'une société dont les actions ne sont pas admises aux négociations sur un marché réglementé réserve des actions à ses salariés, dès lors que la clause d'agrément a pour objet d'éviter que lesdites actions ne soient dévolues ou cédées à des personnes n'ayant pas la qualité de salarié de la société.
Toute cession effectuée en violation d'une clause d'agrément figurant dans les statuts est nulle.
Article L228-24
Si une clause d'agrément est stipulée, la demande d'agrément indiquant les nom, prénoms et adresse du cessionnaire, le nombre des titres de capital ou valeurs mobilières donnant accès au capital dont la cession est envisagée et le prix offert, est notifiée à la société. L'agrément résulte, soit d'une notification, soit du défaut de réponse dans un délai de trois mois à compter de la demande.
Si la société n'agrée pas le cessionnaire proposé, le conseil d'administration, le directoire ou les gérants, selon le cas, sont tenus, dans le délai de trois mois à compter de la notification du refus, de faire acquérir les titres de capital ou valeurs mobilières donnant accès au capital, soit par un actionnaire ou par un tiers, soit, avec le consentement du cédant, par la société en vue d'une réduction du capital. A défaut d'accord entre les parties, le prix des titres de capital ou valeurs mobilières donnant accés au capital est déterminé dans les conditions prévues à l'article 1843-4 du code civil. Le cédant peut à tout moment renoncer à la cession de ses titres de capital ou valeurs
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mobilières donnant accès au capital. Toute clause contraire à l'article 1843-4 dudit code est réputée non écrite.
Si, à l'expiration du délai prévu à l'alinéa précédent, l'achat n'est pas réalisé, l'agrément est considéré comme donné. Toutefois, ce délai peut être prolongé par décision de justice à la demande de la société.
Article L228-26
Si la société a donné son consentement à un projet de nantissement d'actions dans les conditions prévues au premier alinéa de l'article L. 228-24, ce consentement emporte agrément du cessionnaire en cas de réalisation forcée des actions nanties selon les dispositions du premier alinéa de l'article 2078 du code civil, à moins que la société ne préfère, après la cession, racheter sans délai les actions, en vue de réduire son capital.
Article L228-27
A défaut par l'actionnaire de libérer aux époques fixées par le conseil d'administration, le directoire ou les gérants, selon le cas, les sommes restant à verser sur le montant des actions par lui souscrites, la société lui adresse une mise en demeure.
Un mois au moins après cette mise en demeure restée sans effet, la société poursuit, sans aucune autorisation de justice, la vente desdites actions.
La vente des actions cotées est effectuée en bourse. Celle des actions non cotées est effectuée aux enchères publiques. L'actionnaire défaillant reste débiteur ou profite de la différence. Les modalités d'application du présent alinéa sont déterminées par décret en Conseil d'Etat.
Article L228-28
L'actionnaire défaillant, les cessionnaires successifs et les souscripteurs sont tenus solidairement du montant non libéré de l'action. La société peut agir contre eux, soit avant ou après la vente, soit en même temps, pour obtenir tant la somme due que le remboursement des frais exposés.
Celui qui a désintéressé la société dispose d'un recours pour le tout contre les titulaires successifs de l'action. La charge définitive de la dette incombe au dernier d'entre eux.
Deux ans après le virement d'un compte de valeurs mobilières à un autre compte, tout souscripteur ou actionnaire qui a cédé son titre cesse d'être tenu des versements non encore appelés.
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Article L228-29
A l'expiration du délai fixé par décret en Conseil d'Etat, les actions sur le montant desquelles les versements exigibles n'ont pas été effectués, cessent de donner droit à l'admission et aux votes dans les assemblées d'actionnaires et sont déduites pour le calcul du quorum.
Le droit aux dividendes et le droit préférentiel de souscription aux augmentations de capital attachés à ces actions sont suspendus.
Après paiement des sommes dues, en principal et intérêt, l'actionnaire peut demander le versement des dividendes non prescrits. Il ne peut exercer une action du chef du droit préférentiel de souscription à une augmentation de capital, après expiration du délai fixé pour l'exercice de ce droit.
Article L228-29-1
Les actions ayant une valeur nominale inférieure ou égale à un montant fixé par décret en Conseil d'Etat et non admises aux négociations sur un marché réglementé peuvent être regroupées nonobstant toute disposition législative ou statutaire contraire. Ces regroupements sont décidés par les assemblées générales d'actionnaires statuant dans les conditions prévues pour la modification des statuts et conformément aux dispositions de l'article L. 228-29-2.
Article L228-29-2
Les regroupements d'actions prévus à l'article L. 228-29-1 comportent l'obligation, pour les actionnaires, de procéder aux achats ou aux cessions d'actions nécessaires pour réaliser le regroupement.
La valeur nominale des actions regroupées ne peut être supérieure à un montant fixé par décret en Conseil d'Etat.
Pour faciliter ces opérations, la société doit, avant la décision de l'assemblée générale, obtenir d'un ou de plusieurs actionnaires l'engagement de servir, pendant un délai de deux ans, au prix fixé par l'assemblée, la contrepartie tant à l'achat qu'à la vente des offres portant sur les rompus ou des demandes tendant à compléter le nombre de titres appartenant à chacun des actionnaires intéressés.
Article L228-29-3
A l'expiration du délai fixé par le décret prévu à l'article L. 228-29-7, les actions non présentées en vue de leur regroupement perdent leur droit de vote et leur droit au dividende est suspendu.
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Le décret mentionné au premier alinéa peut accorder un délai supplémentaire aux actionnaires ayant pris l'engagement prévu au troisième alinéa de l'article L. 228-29-2.
Les dividendes dont le paiement a été suspendu en exécution du premier alinéa sont, en cas de regroupement ultérieur, versés aux propriétaires des actions anciennes dans la mesure où ils n'ont pas été atteints par la prescription.
Article L228-29-4
Lorsque les propriétaires de titres n'ont pas la libre administration de leurs biens, la demande d'échange des anciens titres et les achats ou cessions de rompus nécessaires pour réaliser le regroupement sont assimilés à des actes de simple administration, sauf si les nouveaux titres sont demandés sous la forme au porteur en échange de titres nominatifs.
Article L228-29-5
Les titres nouveaux présentent les mêmes caractéristiques et confèrent de plein droit et sans l'accomplissement d'aucune formalité les mêmes droits réels ou de créances que les titres anciens qu'ils remplacent.
Les droits réels et les nantissements sont reportés de plein droit sur les titres nouveaux attribués en remplacement des titres anciens qui en sont grevés.
Article L228-29-6
En cas d'inobservation par la société soit des articles L. 228-29-1 ou L. 228-29-2, soit des conditions dans lesquelles doivent être prises les décisions des assemblées générales et des formalités de publicité fixées par le décret prévu à l'article L. 228-29-7, le regroupement reste facultatif pour les actionnaires. Les dispositions de l'article L. 228-29-3 ne peuvent être appliquées aux actionnaires.
Si le ou les actionnaires ayant pris l'engagement prévu à l'article L. 228-29-2 ne remplissent pas celui-ci, les opérations de regroupement peuvent être annulées. Dans ce cas, les achats et les ventes de rompus peuvent être annulés à la demande des actionnaires qui y ont procédé ou de leurs ayants cause, à l'exception des actionnaires défaillants, sans préjudice de tous dommages et intérêts s'il y a lieu.
Article L228-29-7
Un décret en Conseil d'Etat fixe les modalités d'application des articles L. 228-29-1 à L. 228-29-6,
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notamment les conditions non prévues à l'article L. 228-29-1 dans lesquelles doivent être prises les décisions des assemblées générales d'actionnaires et accomplies les formalités de publicité de ces décisions.
Section 3 : Dispositions applicables aux catégories de titres en voie d'extinction.
Sous-section 1 : Dispositions générales.
Article L228-29-8
Aucun titre nouveau ne peut être émis en application des articles de la présente section à l'exception de ceux qui seraient émis en application de décisions d'assemblées générales antérieures à l'entrée en vigueur de l'ordonnance n° 2004-604 du 24 juin 2004 portant réforme du régime des valeurs mobilières émises par les sociétés commerciales et extension à l'outre-mer de dispositions ayant modifié la législation commerciale.
Article L228-29-9
Les porteurs de titres régis par la présente section disposent, sauf application de l'article L. 225-138, d'un droit préférentiel de souscription des actions de préférence mentionnées à l'article L. 228-11 lorsque celles-ci confèrent des droits équivalents à ceux des titres qu'ils possèdent.
Les porteurs de titres régis par la présente section disposent, sauf application de l'article L. 225-138, d'un droit de préférence à la souscription des valeurs mobilières mentionnées à l'article L. 228-91 lorsque celles-ci donnent lieu à l'attribution de titres conférant des droits équivalents à ceux des titres qu'ils possèdent.
Article L228-29-10
Pour le calcul des quotités prévues à l'article L. 228-11, il est tenu compte des actions à dividende prioritaire sans droit de vote et des certificats d'investissement existants.
Toutefois, l'application des dispositions de l'alinéa précédent ne fait pas obstacle au maintien des droits des titulaires de titres existants.
Sous-section 2 : Des certificats d'investissement.
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Article L228-30
L'assemblée générale extraordinaire d'une société par actions, ou dans les sociétés qui n'en sont pas dotées, l'organe qui en tient lieu, peut décider, sur le rapport du conseil d'administration ou du directoire, selon le cas, et sur celui des commissaires aux comptes, la création, dans une proportion qui ne peut être supérieure au quart du capital social, de certificats d'investissement représentatifs des droits pécuniaires et de certificats de droit de vote représentatifs des autres droits attachés aux actions émises à l'occasion d'une augmentation de capital ou d'un fractionnement des actions existantes.
En cas d'augmentation de capital, les porteurs d'actions et, s'il en existe, les porteurs de certificats d'investissement, bénéficient d'un droit de souscription préférentiel aux certificats d'investissement émis et la procédure suivie est celle des augmentations de capital. Les porteurs de certificats d'investissement renoncent au droit préférentiel en assemblée spéciale convoquée et statuant selon les règles de l'assemblée générale extraordinaire des actionnaires. Les certificats de droit de vote sont répartis entre les porteurs d'actions et les porteurs des certificats de droit de vote, s'il en existe, au prorata de leurs droits.
En cas de fractionnement, l'offre de création des certificats d'investissement est faite en même temps et dans une proportion égale à leur part du capital à tous les porteurs d'actions. A l'issue d'un délai fixé par l'assemblée générale extraordinaire, le solde des possibilités de création non attribuées est réparti entre les porteurs d'actions qui ont demandé à bénéficier de cette répartition supplémentaire dans une proportion égale à leur part du capital et, en tout état de cause, dans la limite de leurs demandes. Après cette répartition, le solde éventuel est réparti par le conseil d'administration ou le directoire, selon le cas.
Le certificat de droit de vote doit revêtir la forme nominative.
Le certificat d'investissement est négociable. Sa valeur nominale est égale à celle des actions. Lorsque les actions sont divisées, les certificats d'investissement le sont également.
Le certificat de droit de vote ne peut être cédé qu'accompagné d'un certificat d'investissement. Toutefois, il peut être également cédé au porteur du certificat d'investissement. La cession entraîne de plein droit reconstitution de l'action dans l'un et l'autre cas. L'action est également reconstituée de plein droit entre les mains du porteur d'un certificat d'investissement et d'un certificat de droit de vote. Celui-ci en fait la déclaration à la société dans les quinze jours. Faute de cette déclaration, l'action est privée du droit de vote jusqu'à régularisation et pendant un délai d'un mois suivant celle-ci.
Il ne peut être attribué de certificat représentant moins d'un droit de vote. L'assemblée générale fixe les modalités d'attribution des certificats pour les droits formant rompus.
En cas de fusion ou de scission, les certificats d'investissement et les certificats de droit de vote d'une société qui disparaît peuvent être échangés contre des actions de sociétés bénéficiaires du transfert de patrimoine.
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Article L228-31
L'assemblée générale extraordinaire d'une société dont les actions sont admises aux négociations sur un marché réglementé et dont les certificats d'investissement existants représentent au plus 1 % du capital social peut décider, sur le rapport du conseil d'administration, de procéder à la reconstitution des certificats existants en actions, et à celle des certificats existants assortis d'avantages particuliers en actions conférant à leurs titulaires les mêmes avantages.
L'assemblée générale extraordinaire prévue à l'alinéa précédent statue dans les conditions prévues pour l'approbation des avantages particuliers par l'article L. 225-147, après qu'une assemblée des titulaires de certificats de droits de vote, convoquée et statuant selon les règles des assemblées spéciales d'actionnaires, a approuvé le projet à une majorité de 95 % des titulaires présents ou représentés. La cession s'opère alors à la société, par dérogation au sixième alinéa de l'article L. 228-30, au prix fixé par l'assemblée générale extraordinaire mentionnée au premier alinéa du présent article.
Le prix mentionné à l'alinéa précédent est déterminé selon les modalités énoncées au 2° de l'article 283-1-1 de la loi n° 66-537 du 24 juillet 1966 sur les sociétés commerciales (1).
Le montant de l'indemnisation revenant aux détenteurs non identifiés est consigné.
La reconstitution s'opère par la cession aux porteurs de certificats d'investissement, à titre gratuit, des certificats de droits de vote correspondants.
A cet effet, la société peut demander l'identification des porteurs de certificats, même en l'absence de disposition statutaire expresse, selon les modalités prévues par l'article L. 228-2.
Article L228-32
Les porteurs de certificats d'investissement peuvent obtenir communication des documents sociaux dans les mêmes conditions que les actionnaires.
Article L228-33
En cas de distribution gratuite d'actions, de nouvelles actions de préférence sans droit de vote et assorties des mêmes droits que les certificats d'investissement doivent être créées et remises gratuitement aux propriétaires des certificats anciens, dans la proportion du nombre des actions nouvelles attribuées aux actions anciennes, sauf renonciation de leur part au profit de l'ensemble des porteurs ou de certains d'entre eux.
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Article L228-34
En cas d'augmentation de capital en numéraire, à l'exception de celle réservée aux salariés sur le fondement de l'article L. 225-138-1, il est émis de nouvelles actions de préférence sans droit de vote et assorties des mêmes droits que les certificats d'investissement en nombre tel que la proportion qui existait avant l'augmentation entre actions ordinaires et certificats d'investissement soit maintenue, en tenant compte de ces actions de préférence, après l'augmentation en considérant que celle-ci sera entièrement réalisée.
Les propriétaires des certificats d'investissement ont, proportionnellement au nombre de titres qu'ils possèdent, un droit de préférence à la souscription à titre irréductible de ces nouvelles actions de préférence. Lors d'une assemblée spéciale, convoquée et statuant selon les règles de l'assemblée générale extraordinaire des actionnaires, les propriétaires des certificats d'investissement peuvent renoncer à ce droit. Les actions de préférence non souscrites sont réparties par le conseil d'administration ou le directoire. La réalisation de l'augmentation de capital s'apprécie sur sa fraction correspondant à l'émission d'actions. Toutefois, par dérogation aux dispositions du premier alinéa ci-dessus, lorsque les propriétaires de certificats ont renoncé à leur droit préférentiel de souscription, il n'est pas procédé à l'émission de nouvelles actions de préférence.
Article L228-35
En cas d'émission d'obligations convertibles en actions, les porteurs des certificats d'investissement ont, proportionnellement au nombre de titres qu'ils possèdent, un droit de préférence à leur souscription à titre irréductible. Leur assemblée spéciale, convoquée et statuant selon les règles de l'assemblée générale extraordinaire des actionnaires, peut y renoncer.
Ces obligations ne peuvent être converties qu'en actions de préférence sans droit de vote et assorties des mêmes droits que les certificats d'investissement.
Sous-section 3 : Les actions de priorité.
Article L228-35-1
Lors de la constitution de la société ou au cours de son existence, il peut être créé des actions de priorité jouissant d'avantages par rapport à toutes autres actions, sous réserve des dispositions des articles L. 225-122 à L. 225-125.
Par exception à l'article L. 225-99, les statuts ou le contrat d'émission peuvent prévoir que la décision de conversion des actions de priorité en actions ordinaires par l'assemblée générale extraordinaire ne s'impose pas aux porteurs de ces actions.
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Sous-section 4 : Les actions à dividende prioritaire sans droit de vote.
Article L228-35-2
Il peut de même être créé des actions à dividende prioritaire sans droit de vote dans les conditions prévues aux articles L. 228-35-3 à L. 228-35-11 sous réserve des dispositions des articles L. 225-122 à L. 225-126.
Article L228-35-3
Les actions à dividende prioritaire sans droit de vote peuvent être créées par augmentation de capital ou par conversion d'actions ordinaires déjà émises. Elles peuvent être converties en actions ordinaires.
Les actions à dividende prioritaire sans droit de vote ne peuvent représenter plus du quart du montant du capital social. Leur valeur nominale est égale à celle des actions ordinaires ou, le cas échéant, des actions ordinaires de l'une des catégories précédemment émises par la société.
Les titulaires d'actions à dividende prioritaire sans droit de vote bénéficient des droits reconnus aux autres actionnaires, à l'exception du droit de participer et de voter, du chef de ces actions, aux assemblées générales des actionnaires de la société.
En cas de création d'actions à dividende prioritaire sans droit de vote par conversion d'actions ordinaires déjà émises ou en cas de conversion d'actions à dividende prioritaire sans droit de vote en actions ordinaires, l'assemblée générale extraordinaire détermine le montant maximal d'actions à convertir et fixe les conditions de conversion sur rapport spécial du commissaire aux comptes. Sa décision n'est définitive qu'après approbation des assemblées spéciales prévues aux articles L. 228-35-6 et L. 228-103.
L'offre de conversion est faite en même temps et à proportion de leur part dans le capital social à tous les actionnaires, à l'exception des personnes mentionnées à l'article L. 228-35-8. L'assemblée générale extraordinaire fixe le délai pendant lequel les actionnaires peuvent accepter l'offre de conversion.
Par exception à l'article L. 225-99, les statuts ou le contrat d'émission peuvent prévoir que la décision de conversion des actions à dividende prioritaire sans droit de vote en actions ordinaires par l'assemblée générale extraordinaire ne s'impose pas aux porteurs de ces actions.
Article L228-35-4
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Les actions à dividende prioritaire sans droit de vote donnent droit à un dividende prioritaire prélevé sur le bénéfice distribuable de l'exercice avant toute autre affectation. S'il apparaît que le dividende prioritaire ne peut être intégralement versé en raison de l'insuffisance du bénéfice distribuable, celui-ci doit être réparti à due concurrence entre les titulaires d'actions à dividende prioritaire sans droit de vote. Le droit au paiement du dividende prioritaire qui n'a pas été intégralement versé en raison de l'insuffisance du bénéfice distribuable est reporté sur l'exercice suivant et, s'il y a lieu, sur les deux exercices ultérieurs ou, si les statuts le prévoient, sur les exercices ultérieurs. Ce droit s'exerce prioritairement par rapport au paiement du dividende prioritaire dû au titre de l'exercice.
Le dividende prioritaire ne peut être inférieur ni au premier dividende visé à l'article L. 232-16 ni à un montant égal à 7,5 % du montant libéré du capital représenté par les actions à dividende prioritaire sans droit de vote. Ces actions ne peuvent donner droit au premier dividende.
Après prélèvement du dividende prioritaire ainsi que du premier dividende, si les statuts en prévoient, ou d'un dividende de 5 % au profit de toutes les actions ordinaires calculé dans les conditions prévues à l'article L. 232-16, les actions à dividende prioritaire sans droit de vote ont, proportionnellement à leur montant nominal, les mêmes droits que les actions ordinaires.
Dans le cas où les actions ordinaires sont divisées en catégories ouvrant des droits inégaux au premier dividende, le montant du premier dividende prévu au deuxième alinéa du présent article s'entend du premier dividende le plus élevé.
Article L228-35-5
Lorsque les dividendes prioritaires dus au titre de trois exercices n'ont pas été intégralement versés, les titulaires des actions correspondantes acquièrent, proportionnellement à la quotité du capital représentée par ces actions, un droit de vote égal à celui des autres actionnaires.
Le droit de vote prévu à l'alinéa précédent subsiste jusqu'à l'expiration de l'exercice au cours duquel le dividende prioritaire aura été intégralement versé, y compris le dividende dû au titre des exercices antérieurs.
Article L228-35-6
Les titulaires d'actions à dividende prioritaire sans droit de vote sont réunis en assemblée spéciale dans des conditions fixées par décret en Conseil d'Etat.
Tout actionnaire possédant des actions à dividende prioritaire sans droit de vote peut participer à l'assemblée spéciale. Toute clause contraire est réputée non écrite.
L'assemblée spéciale des actionnaires à dividende prioritaire sans droit de vote peut émettre un avis avant toute décision de l'assemblée générale. Elle statue alors à la majorité des voix exprimées par les actionnaires présents ou représentés. Dans le cas où il est procédé à un scrutin, il n'est pas tenu compte des bulletins blancs. L'avis est transmis à la société. Il est porté à la connaissance de
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l'assemblée générale et consigné à son procès-verbal.
L'assemblée spéciale peut désigner un ou, si les statuts le prévoient, plusieurs mandataires chargés de représenter les actionnaires à dividende prioritaire sans droit de vote à l'assemblée générale des actionnaires et, le cas échéant, d'y exposer leur avis avant tout vote de cette dernière. Cet avis est consigné au procès-verbal de l'assemblée générale.
Sous réserve de l'article L. 228-35-7, toute décision modifiant les droits des titulaires d'actions à dividende prioritaire sans droit de vote n'est définitive qu'après approbation par l'assemblée spéciale visée au premier alinéa du présent article, statuant selon les conditions de quorum et de majorité prévues à l'article L. 225-99.
S'il est fait obstacle à la désignation des mandataires chargés de représenter les actionnaires à dividende prioritaire sans droit de vote à l'assemblée générale des actionnaires, le président du tribunal, statuant en référé, peut à la demande de tout actionnaire désigner un mandataire chargé de cette fonction.
Article L228-35-7
En cas d'augmentation de capital par apports en numéraire, les titulaires d'actions à dividende prioritaire sans droit de vote bénéficient, dans les mêmes conditions que les actionnaires ordinaires, d'un droit préférentiel de souscription. Toutefois, l'assemblée générale extraordinaire peut décider, après avis de l'assemblée spéciale prévue à l'article L. 228-35-6, qu'ils auront un droit préférentiel à souscrire, dans les mêmes conditions, de nouvelles actions de préférence sans droit de vote et assorties des mêmes droits que les actions à dividende prioritaire sans droit de vote qui seront émises dans la même proportion.
L'attribution gratuite d'actions nouvelles, à la suite d'une augmentation de capital par incorporation de réserves, bénéfices ou primes d'émission, s'applique aux titulaires d'actions à dividende prioritaire sans droit de vote. Toutefois l'assemblée générale extraordinaire peut décider, après avis de l'assemblée spéciale prévue à l'article L. 228-35-6, que les titulaires d'actions à dividende prioritaire sans droit de vote recevront, au lieu et place d'actions ordinaires, des actions de préférence sans droit de vote et assorties des mêmes droits que les actions à dividende prioritaire sans droit de vote qui seront émises dans la même proportion.
Toute majoration du montant nominal des actions existantes à la suite d'une augmentation de capital par incorporation de réserves, bénéfices ou primes d'émission, s'applique aux actions à dividende prioritaire sans droit de vote. Le dividende prioritaire prévu à l'article L. 228-35-4 est alors calculé, à compter de la réalisation de l'augmentation du capital, sur le nouveau montant nominal majoré, s'il y a lieu, de la prime d'émission versée lors de la souscription des actions anciennes.
Article L228-35-8
Le président et les membres du conseil d'administration, les directeurs généraux, les membres du directoire et du conseil de surveillance d'une société anonyme, les gérants d'une société en
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commandite par actions et leur conjoint non séparé de corps ainsi que leurs enfants mineurs non émancipés ne peuvent détenir, sous quelque forme que ce soit, des actions à dividende prioritaire sans droit de vote émises par cette société.
Article L228-35-9
Il est interdit à la société qui a émis des actions à dividende prioritaire sans droit de vote d'amortir son capital.
En cas de réduction du capital non motivée par des pertes, les actions à dividende prioritaire sans droit de vote sont, avant les actions ordinaires, achetées dans les conditions prévues aux deux derniers alinéas de l'article L. 228-35-10 et annulées.
Toutefois, ces dispositions ne sont pas applicables aux réductions de capital réalisées dans le cadre de l'article L. 225-209. Dans ce cas, les dispositions de l'article L. 225-99 ne sont pas applicables si les actions ont été acquises sur un marché réglementé.
Les actions à dividende prioritaire sans droit de vote ont, proportionnellement à leur montant nominal, les mêmes droits que les autres actions sur les réserves distribuées au cours de l'existence de la société.
Article L228-35-10
Les statuts peuvent donner à la société la faculté d'exiger le rachat, soit de la totalité de ses propres actions à dividende prioritaire sans droit de vote, soit de certaines catégories d'entre elles, chaque catégorie étant déterminée par la date de son émission. Le rachat d'une catégorie d'actions à dividende prioritaire sans droit de vote doit porter sur l'intégralité des actions de cette catégorie. Le rachat est décidé par l'assemblée générale statuant dans les conditions fixées à l'article L. 225-204. Les dispositions de l'article L. 225-205 sont applicables. Les actions rachetées sont annulées conformément à l'article L. 225-207 et le capital réduit de plein droit.
Le rachat d'actions à dividende prioritaire sans droit de vote ne peut être exigé par la société que si une stipulation particulière a été insérée à cet effet dans les statuts avant l'émission de ces actions.
La valeur des actions à dividende prioritaire sans droit de vote est déterminée au jour du rachat d'un commun accord entre la société et une assemblée spéciale des actionnaires vendeurs, statuant selon les conditions de quorum et de majorité prévues à l'article L. 225-99. En cas de désaccord, il est fait application de l'article 1843-4 du code civil.
Le rachat des actions à dividende prioritaire sans droit de vote ne peut intervenir que si le dividende prioritaire dû au titre des exercices antérieurs et de l'exercice en cours a été intégralement versé.
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Article L228-35-11
Il n'est pas tenu compte des actions à dividende prioritaire sans droit de vote pour la détermination du pourcentage prévu à l'article L. 233-1 ou à l'article L. 233-2.
Section 4 : Des titres participatifs.
Article L228-36
Les sociétés par actions appartenant au secteur public et les sociétés coopératives constituées sous la forme de société anonyme ou de société à responsabilité limitée peuvent émettre des titres participatifs. Ces titres ne sont remboursables qu'en cas de liquidation de la société ou, à son initiative, à l'expiration d'un délai qui ne peut être inférieur à sept ans et dans les conditions prévues au contrat d'émission.
Leur rémunération comporte une partie fixe et une partie variable calculée par référence à des éléments relatifs à l'activité ou aux résultats de la société et assise sur le nominal du titre. Un décret en Conseil d'Etat fixe les conditions dans lesquelles l'assiette de la partie variable de la rémunération est plafonnée.
Les titres participatifs sont négociables.
Pour l'application de l'article 26 de la loi n° 78-741 du 13 juillet 1978 relative à l'orientation de l'épargne vers le financement des entreprises, les prêts participatifs ne sont remboursés qu'après désintéressement complet de tous les autres créanciers privilégiés ou chirographaires à l'exclusion des propriétaires de titres participatifs.
Article L228-37
L'émission et le remboursement de titres participatifs doivent être autorisés dans les conditions prévues par le cinquième alinéa de l'article L. 225-100 et les articles L. 228-40 à L. 228-44.
Les porteurs de titres participatifs d'une même émission sont groupés de plein droit pour la défense de leurs intérêts communs en une masse qui jouit de la personnalité civile. Ils sont soumis aux dispositions des articles L. 228-47 à L. 228-71, L. 228-73 et L. 228-76 à L. 228-90.
En outre, la masse est réunie au moins une fois par an pour entendre le rapport des dirigeants sociaux sur la situation et l'activité de la société au cours de l'exercice écoulé et le rapport des commissaires aux comptes sur les comptes de l'exercice et sur les éléments servant à la détermination de la rémunération des titres participatifs.
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Les représentants de la masse assistent aux assemblées d'actionnaires ou de porteurs de parts. Ils sont consultés sur toutes les questions inscrites à l'ordre du jour, à l'exception de celles relatives à la désignation ou à la révocation des membres des organes sociaux. Ils peuvent intervenir à tout moment au cours de l'assemblée.
Les porteurs de titres participatifs peuvent obtenir communication des documents sociaux dans les mêmes conditions que les actionnaires.
Dans les entreprises publiques non pourvues d'une assemblée générale, le conseil d'administration exerce les pouvoirs dévolus à l'assemblée générale ordinaire pour l'émission des titres participatifs. Le quatrième alinéa du présent article n'est pas applicable.
Section 5 : Des obligations.
Article L228-38
Comme il est dit à l'article L. 213-5 du code monétaire et financier :
"Art. L213-5 - Les obligations sont des titres négociables qui, dans une même émission, confèrent les mêmes droits de créance pour une même valeur nominale."
Article L228-39
L'émission d'obligations par une société par actions n'ayant pas établi deux bilans régulièrement approuvés par les actionnaires doit être précédée d'une vérification de l'actif et du passif dans les conditions prévues aux articles L. 225-8 et L. 225-10.
L'émission d'obligations est interdite aux sociétés dont le capital n'est pas intégralement libéré sauf si les actions non libérées ont été réservées aux salariés en application de l'article L. 225-187 ou de l'article L. 443-5 du code du travail, et sauf si elle est faite en vue de l'attribution aux salariés des obligations émises au titre de la participation de ceux-ci aux fruits de l'expansion de l'entreprise.
Article L228-40
Le conseil d'administration, le directoire, le ou les gérants ont qualité pour décider ou autoriser l'émission d'obligations, sauf si les statuts réservent ce pouvoir à l'assemblée générale ou si celle-ci décide de l'exercer.
Le conseil d'administration peut déléguer à un ou plusieurs de ses membres, au directeur général ou,
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en accord avec ce dernier, à un ou plusieurs directeurs généraux délégués, et dans les établissements de crédit, à toute personne de son choix, les pouvoirs nécessaires pour réaliser, dans un délai d'un an l'émission d'obligations et en arrêter les modalités.
Le directoire peut déléguer à son président et avec l'accord de celui-ci à un ou plusieurs de ses membres, et dans les établissements de crédit, à toute personne de son choix, les pouvoirs nécessaires pour réaliser dans le même délai, l'émission d'obligations et en arrêter les modalités.
Les personnes désignées rendent compte au conseil d'administration ou au directoire dans les conditions déterminées par ces organes.
Article L228-44
La société ne peut constituer un gage quelconque sur ses propres obligations.
Article L228-45
Dans le cas où la société émettrice a continué à payer les produits d'obligations remboursables par suite d'un tirage au sort, elle ne peut répéter ces sommes lorsque ces obligations sont présentées au remboursement.
Toute clause contraire est réputée non écrite.
Article L228-46
Les porteurs d'obligations d'une même émission sont groupés de plein droit pour la défense de leurs intérêts communs, en une masse qui jouit de la personnalité civile.
Toutefois, en cas d'émissions successives d'obligations, la société peut, lorsqu'une clause de chaque contrat d'émission le prévoit, grouper en une masse unique les porteurs d'obligations ayant des droits identiques.
Article L228-47
La masse est représentée par un ou plusieurs mandataires élus par l'assemblée générale des obligataires. Leur nombre ne peut en aucun cas excéder trois. Les représentants peuvent être désignés dans le contrat d'émission.
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Article L228-48
Le mandat de représentant de la masse ne peut être confié qu'aux personnes de nationalité française ou ressortissant d'un Etat membre de la Communauté européenne, domiciliées en territoire français, et aux associations et sociétés y ayant leur siège.
Article L228-49
Ne peuvent être choisis comme représentants de la masse :
1° La société débitrice ;
2° Les sociétés possédant au moins le dixième du capital de la société débitrice ou dont celle-ci possède au moins le dixième du capital ;
3° Les sociétés garantes de tout ou partie des engagements de la société débitrice ;
4° Les gérants, administrateurs, membres du directoire, du conseil de surveillance, directeurs généraux, commissaires aux comptes ou employés des sociétés visées aux 1° et 3°, ainsi que leurs ascendants, descendants et conjoint ;
5° Les personnes auxquelles l'exercice de la profession de banquier est interdit ou qui sont déchues du droit de diriger, administrer ou gérer une société à un titre quelconque.
Article L228-50
En cas d'urgence, les représentants de la masse peuvent être désignés par décision de justice à la demande de tout intéressé.
Article L228-51
Lorsqu'ils n'ont pas été désignés dans le contrat d'émission, les représentants de la masse des porteurs d'obligations d'un emprunt sont nommés dans le délai d'un an à compter de la date d'émission et au plus tard un mois avant le premier amortissement prévu.
Cette nomination est faite par l'assemblée générale ou, à défaut, par décision de justice, à la demande de tout intéressé.
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Article L228-52
Les représentants de la masse peuvent être relevés de leurs fonctions par l'assemblée générale des obligataires.
Article L228-53
Les représentants de la masse ont, sauf restriction décidée par l'assemblée générale des obligataires, le pouvoir d'accomplir au nom de la masse tous les actes de gestion pour la défense des intérêts communs des obligataires.
Article L228-54
Les représentants de la masse, dûment autorisés par l'assemblée générale des obligataires, ont seuls qualité pour engager, au nom de ceux-ci, les actions en nullité de la société ou des actes et délibérations postérieurs à sa constitution, ainsi que toutes actions ayant pour objet la défense des intérêts communs des obligataires, et notamment requérir la mesure prévue à l'article L. 237-14.
Les actions en justice dirigées contre l'ensemble des obligataires d'une même masse ne peuvent être intentées que contre le représentant de cette masse.
Toute action intentée contrairement aux dispositions du présent article doit être déclarée d'office irrecevable.
Article L228-55
Les représentants de la masse ne peuvent s'immiscer dans la gestion des affaires sociales. Ils ont accès aux assemblées générales des actionnaires, mais sans voix délibérative.
Ils ont le droit d'obtenir communication des documents mis à la disposition des actionnaires dans les mêmes conditions que ceux-ci.
Article L228-56
La rémunération des représentants de la masse telle que fixée par l'assemblée générale ou par le contrat d'émission est à la charge de la société débitrice.
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A défaut de fixation de cette rémunération, ou si son montant est contesté par la société, il est statué par décision de justice.
Sans préjudice de l'action en responsabilité contre les mandataires sociaux ou le représentant de la masse, toute décision accordant à ce dernier une rémunération en violation des dispositions du présent article est nulle.
Article L228-57
L'assemblée générale des obligataires d'une même masse peut être réunie à toute époque.
Article L228-58
L'assemblée générale des obligataires est convoquée par le conseil d'administration, le directoire ou les gérants, par les représentants de la masse ou par les liquidateurs pendant la période de liquidation.
Un ou plusieurs obligataires, réunissant au moins le trentième des titres d'une masse, peuvent adresser à la société et au représentant de la masse une demande tendant à la convocation de l'assemblée.
Si l'assemblée générale n'a pas été convoquée dans le délai fixé par décret en Conseil d'Etat, les auteurs de la demande peuvent charger l'un d'entre eux de poursuivre en justice la désignation d'un mandataire qui convoquera l'assemblée.
Article L228-59
La convocation des assemblées générales d'obligataires est faite dans les mêmes conditions de forme et de délai que celle des assemblées d'actionnaires. En outre, les avis de convocation contiennent des mentions spéciales qui sont déterminées par décret en Conseil d'Etat.
Toute assemblée irrégulièrement convoquée peut être annulée. Toutefois, l'action en nullité n'est pas recevable lorsque tous les obligataires de la masse intéressée sont présents ou représentés.
Article L228-60
L'ordre du jour des assemblées est arrêté par l'auteur de la convocation.
Toutefois, un ou plusieurs obligataires ont la faculté, dans les conditions prévues au deuxième alinéa de l'article L. 228-58, de requérir l'inscription à l'ordre du jour de projets de résolution.
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Ceux-ci sont inscrits à l'ordre du jour et soumis par le président de séance au vote de l'assemblée.
L'assemblée ne peut délibérer sur une question qui n'est pas inscrite à l'ordre du jour.
Sur deuxième convocation, l'ordre du jour de l'assemblée ne peut être modifié.
Article L228-60-1
A chaque assemblée est tenue une feuille de présence.
Les décisions prises à chaque assemblée sont constatées par procès-verbal, signé par les membres du bureau et conservé au siège social dans un registre spécial.
Les mentions que doivent comporter la feuille de présence et le procès-verbal sont déterminées par décret en Conseil d'Etat.
Article L228-61
S'il existe plusieurs masses d'obligataires, elles ne peuvent en aucun cas délibérer au sein d'une assemblée commune.
Tout obligataire a le droit de participer à l'assemblée ou de s'y faire représenter par un mandataire de son choix.
Tout obligataire peut voter par correspondance, au moyen d'un formulaire dont les mentions sont fixées par décret en Conseil d'Etat. Les dispositions contraires des statuts sont réputées non écrites.
Pour le calcul du quorum, il n'est tenu compte que des formulaires qui ont été reçus par la société avant la réunion de l'assemblée, dans les conditions de délais fixées par décret en Conseil d'Etat. Les formulaires ne donnant aucun sens de vote ou exprimant une abstention sont considérés comme des votes négatifs.
Si les statuts le prévoient, sont réputés présents pour le calcul du quorum et de la majorité les obligataires qui participent à l'assemblée par visioconférence ou par des moyens de télécommunication permettant leur identification. La nature des moyens techniques admis et les conditions d'application de cette disposition sont déterminées par décret en Conseil d'Etat.
Les porteurs d'obligations amorties et non remboursées par suite de la défaillance de la société débitrice ou à raison d'un litige portant sur les conditions de remboursement, peuvent participer à l'assemblée.
La société qui détient au moins 10 % du capital de la société débitrice ne peut voter à l'assemblée
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avec les obligations qu'elle détient.
Article L228-62
Ne peuvent représenter les obligataires aux assemblées générales, les gérants, administrateurs, membres du directoire et du conseil de surveillance, directeurs généraux, commissaires aux comptes ou employés de la société débitrice ou des sociétés garantes de tout ou partie des engagements de ladite société, ainsi que leurs ascendants, descendants et conjoint.
Article L228-63
La représentation d'un obligataire ne peut être confiée aux personnes auxquelles l'exercice de la profession de banquier est interdit ou qui sont déchues du droit de diriger, d'administrer ou de gérer une société à un titre quelconque.
Article L228-64
L'assemblée est présidée par un représentant de la masse. En cas d'absence des représentants ou en cas de désaccord entre eux, l'assemblée désigne une personne pour exercer les fonctions de président. En cas de convocation par un mandataire de justice, l'assemblée est présidée par ce dernier.
A défaut de représentants de la masse désignés dans les conditions prévues aux articles L. 228-50 et L. 228-51, la première assemblée est ouverte sous la présidence provisoire du porteur détenant ou du mandataire représentant le plus grand nombre d'obligations.
Article L228-65
I. - L'assemblée générale délibère sur toutes mesures ayant pour objet d'assurer la défense des obligataires et l'exécution du contrat d'emprunt ainsi que sur toute proposition tendant à la modification du contrat et notamment :
1° Sur toute proposition relative à la modification de l'objet ou de la forme de la société ;
2° Sur toute proposition, soit de compromis, soit de transaction sur des droits litigieux ou ayant fait l'objet de décisions judiciaires ;
3° Sur les propositions de fusion ou de scission de la société dans les cas prévus aux articles L. 236-13 et L. 236-18 ;
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4° Sur toute proposition relative à l'émission d'obligations comportant un droit de préférence par rapport à la créance des obligataires composant la masse ;
5° Sur toute proposition relative à l'abandon total ou partiel des garanties conférées aux obligataires, au report de l'échéance du paiement des intérêts et à la modification des modalités d'amortissement ou du taux des intérêts ;
6° Sur tout projet de transfert du siège social d'une société européenne dans un autre Etat membre.
II. - L'assemblée générale délibère dans les conditions de quorum prévues au deuxième alinéa de l'article L. 225-98. Elle statue à la majorité des deux tiers des voix dont disposent les porteurs présents ou représentés.
Article L228-66
Le droit de vote dans les assemblées générales d'obligataires appartient au nu-propriétaire.
Article L228-67
Le droit de vote attaché aux obligations doit être proportionnel à la quotité du montant de l'emprunt qu'elles représentent. Chaque obligation donne droit à une voix au moins.
Article L228-68
Les assemblées ne peuvent ni accroître les charges des obligataires ni établir un traitement inégal entre les obligataires d'une même masse.
Elles ne peuvent décider la conversion des obligations en actions, sous réserve des dispositions de l'article L. 228-106.
Toute disposition contraire est réputée non écrite.
Article L228-69
Tout obligataire a le droit d'obtenir, dans les conditions et délais déterminés par décret en Conseil d'Etat, communication du texte des résolutions qui seront proposées et des rapports qui seront présentés à l'assemblée générale.
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Il a, à toute époque, le même droit en ce qui concerne les procès-verbaux et les feuilles de présence des assemblées générales de la masse à laquelle il appartient.
Article L228-70
Les obligataires ne sont pas admis individuellement à exercer un contrôle sur les opérations de la société ou à demander communication des documents sociaux.
Article L228-71
La société débitrice supporte les frais de convocation, de tenue des assemblées générales, de publicité de leurs décisions ainsi que les frais résultant de la procédure prévue à l'article L. 228-50. Les autres dépenses de gestion décidées par l'assemblée générale de la masse peuvent être retenues sur les intérêts servis aux obligataires et leur montant peut être fixé par décision de justice.
Les retenues visées à l'alinéa précédent ne peuvent excéder le dixième de l'intérêt annuel.
Article L228-72
A défaut d'approbation par l'assemblée générale des propositions visées aux 1° et 4° du I. de l'article L. 228-65, le conseil d'administration, le directoire ou les gérants de la société débitrice peuvent passer outre, en offrant de rembourser les obligations dans le délai fixé par décret en Conseil d'Etat.
La décision du conseil d'administration, du directoire ou des gérants de passer outre est publiée dans les conditions fixées par décret en Conseil d'Etat, qui détermine également le délai pendant lequel le remboursement doit être demandé.
Article L228-73
Si l'assemblée générale des obligataires de la société absorbée ou scindée n'a pas approuvé une des propositions visées aux 3° et 6° du I de l'article L. 228-65 ou si elle n'a pu délibérer valablement faute du quorum requis, le conseil d'administration, le directoire ou les gérants de la société débitrice peuvent passer outre. La décision est publiée dans les conditions fixées par décret en Conseil d'Etat.
Les obligataires conservent alors leur qualité dans la société absorbante ou dans les sociétés bénéficiaires des apports résultant de la scission, selon le cas.
Toutefois, l'assemblée générale des obligataires peut donner mandat aux représentants de la masse
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de former opposition à l'opération dans les conditions et avec les effets prévus à l'article L. 236-14.
Article L228-74
Les obligations rachetées par la société émettrice, ainsi que les obligations sorties au tirage et remboursées, sont annulées et ne peuvent être remises en circulation.
Article L228-75
En l'absence de dispositions spéciales du contrat d'émission, la société ne peut imposer aux obligataires le remboursement anticipé des obligations.
Article L228-76
En cas de dissolution anticipée de la société, non provoquée par une fusion ou par une scission, l'assemblée générale des obligataires peut exiger le remboursement des obligations et la société peut l'imposer.
Article L228-77
En cas d'émission d'obligations assorties de sûretés particulières, celles-ci sont constituées par la société avant l'émission, pour le compte de la masse des obligataires. L'acceptation résulte du seul fait des souscriptions. Elle rétroagit à la date de l'inscription pour les sûretés soumises à inscription et à la date de leur constitution pour les autres sûretés.
Article L228-78
Les garanties prévues à l'article L. 228-77 sont conférées par le président du conseil d'administration, le représentant du directoire ou le gérant, sur autorisation de l'organe social habilité à cet effet par les statuts.
Article L228-79
Les sûretés sont constituées dans un acte spécial. Les formalités de publicité desdites sûretés doivent être accomplies avant toute souscription, pour le compte de la masse des obligataires en
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formation.
Dans le délai de six mois à compter de l'ouverture de la souscription, le résultat de celle-ci est constaté dans un acte authentique par le représentant de la société.
Les modalités de l'inscription et du renouvellement de l'inscription des sûretés sont déterminées par décret en Conseil d'Etat.
Les représentants de la masse veillent, sous leur responsabilité, à l'observation des dispositions relatives au renouvellement de l'inscription.
Article L228-80
La mainlevée des inscriptions intervient dans les conditions déterminées par décret en Conseil d'Etat.
Article L228-81
Les garanties constituées postérieurement à l'émission des obligations sont conférées par le président du conseil d'administration, le représentant du directoire ou le gérant, sur autorisation de l'organe social habilité à cet effet par les statuts. Elles sont acceptées par le représentant de la masse.
Article L228-82
L'émission d'obligations, dont le remboursement est garanti par une société de capitalisation, est interdite.
Article L228-83
En cas de redressement ou de liquidation judiciaires de la société, les représentants de la masse des obligataires sont habilités à agir au nom de celle-ci.
Article L228-84
Les représentants de la masse déclarent au passif du redressement ou de la liquidation judiciaires de la société, pour tous les obligataires de cette masse, le montant en principal des obligations restant
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en circulation augmenté pour mémoire des coupons d'intérêts échus et non payés, dont le décompte est établi par le mandataire judiciaire. Ils ne sont pas tenus de fournir les titres de leurs mandants, à l'appui de cette déclaration.
Article L228-85
A défaut de déclaration par les représentants de la masse, une décision de justice désigne à la demande du mandataire judiciaire, un mandataire chargé d'assurer la représentation de la masse dans les opérations de redressement ou de liquidation judiciaires et d'en déclarer la créance.
Article L228-86
Les représentants de la masse sont consultés par le mandataire judiciaire sur les modalités de règlement des obligations proposées en application de l'article L. 626-4. Ils donnent leur accord dans le sens défini par l'assemblée générale ordinaire des obligataires, convoquée à cet effet.
Article L228-87
Les frais entraînés par la représentation des obligataires au cours de la procédure de redressement judiciaire de la société incombent à celle-ci et sont considérés comme des frais d'administration judiciaire.
Article L228-88
Le redressement ou la liquidation judiciaires de la société ne met pas fin au fonctionnement et au rôle de l'assemblée générale des obligataires.
Article L228-89
En cas de clôture pour insuffisance d'actif, le représentant de la masse ou le mandataire de justice désigné, recouvre l'exercice des droits des obligataires.
Article L228-90
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Sauf clause contraire du contrat d'émission, les dispositions des articles L. 228-46 à L. 228-69, L. 228-71, L. 228-72, L. 228-76 à L. 228-81 et L. 228-83 à L. 228-89 ne sont pas applicables aux sociétés dont les emprunts sont soumis à un régime légal spécial, ni aux emprunts garantis par l'Etat, les départements, les communes ou les établissements publics ni aux emprunts émis à l'étranger par des sociétés françaises.
Section 6 : Des valeurs mobilières donnant accès au capital ou donnant droit à l'attribution de titres de créance
Sous-section 1 : Dispositions générales
Article L228-91
Les sociétés par actions peuvent émettre des valeurs mobilières donnant accès au capital ou donnant droit à l'attribution de titres de créance.
Les actionnaires d'une société émettant des valeurs mobilières donnant accès au capital ont, proportionnellement au montant de leurs actions, un droit de préférence à la souscription de ces valeurs mobilières.
Ce droit est régi par les dispositions applicables au droit de préférence à la souscription attaché aux titres de capital conformément aux articles L. 225-132 et L. 225-135 à L. 225-140.
Le contrat d'émission peut prévoir que ces valeurs mobilières et les titres de capital ou de créances auxquels ces valeurs mobilières donnent droit ne peuvent être cédés et négociés qu'ensemble. Dans ce cas, si le titre émis à l'origine est un titre de capital, celui-ci ne relève pas d'une catégorie déterminée au sens de l'article L. 225-99.
Les titres de capital ne peuvent être convertis ou transformés en valeurs mobilières représentatives de créances. Toute clause contraire est réputée non écrite.
Les valeurs mobilières émises en application du présent article ne peuvent être regardées comme constitutives d'une promesse d'action pour l'application du second alinéa de l'article L. 228-10.
Article L228-92
Les émissions de valeurs mobilières donnant accès au capital ou donnant droit à l'attribution de titres de créance régies par l'article L. 228-91 sont autorisées par l'assemblée générale extraordinaire des actionnaires conformément aux articles L. 225-129 à L. 225-129-6. Celle-ci se prononce sur le rapport du conseil d'administration ou du directoire et sur le rapport spécial du commissaire aux
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comptes.
Article L228-93
Une société par actions peut émettre des valeurs mobilières donnant accès au capital de la société qui possède directement ou indirectement plus de la moitié de son capital ou de la société dont elle possède directement ou indirectement plus de la moitié du capital.
A peine de nullité, l'émission doit être autorisée par l'assemblée générale extraordinaire de la société appelée à émettre ces valeurs mobilières et par celle de la société au sein de laquelle les droits sont exercés, dans les conditions prévues par l'article L. 228-92.
Article L228-95
Sont nulles les décisions prises en violation du deuxième et du troisième alinéa de l'article L. 228-91.
Article L228-97
Lors de l'émission de valeurs mobilières représentatives de créances sur la société émettrice, y compris celles donnant le droit de souscrire ou d'acquérir une valeur mobilière, il peut être stipulé que ces valeurs mobilières ne seront remboursées qu'après désintéressement des autres créanciers, à l'exclusion ou y compris des titulaires de prêts participatifs et de titres participatifs, nonobstant les dispositions de l'article L. 228-36 du présent code et celles des articles L. 313-13 et suivants du code monétaire et financier.
Dans ces catégories de valeurs mobilières, il peut être également stipulé un ordre de priorité des paiements.
Sous-section 2 : Dispositions relatives aux valeurs mobilières donnant accès au capital.
Article L228-98
A dater de l'émission de valeurs mobilières donnant accès au capital, la société appelée à attribuer ces titres ne peut modifier sa forme ou son objet, à moins d'y être autorisée par le contrat d'émission ou dans les conditions prévues à l'article L. 228-103.
En outre, elle ne peut ni modifier les règles de répartition de ses bénéfices, ni amortir son capital, ni
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créer d'actions de préférence entraînant une telle modification ou un tel amortissement, à moins d'y être autorisée dans les conditions prévues à l'article L. 228-103 et sous réserve de prendre les dispositions nécessaires au maintien des droits des titulaires des valeurs mobilières donnant accès au capital dans les conditions définies à l'article L. 228-99 ou par le contrat d'émission.
Sous ces mêmes réserves, elle peut cependant créer des actions de préférence.
En cas de réduction de son capital motivée par des pertes et réalisée par la diminution du montant nominal ou du nombre des titres composant le capital, les droits des titulaires des valeurs mobilières donnant accès au capital sont réduits en conséquence, comme s'ils les avaient exercés avant la date à laquelle la réduction de capital est devenue définitive.
Article L228-99
La société appelée à attribuer les titres de capital ou les valeurs mobilières y donnant accès doit prendre les mesures nécessaires à la protection des intérêts des titulaires des droits ainsi créés si elle décide de procéder à l'émission, sous quelque forme que ce soit, de nouveaux titres de capital avec droit préférentiel de souscription réservé à ses actionnaires, de distribuer des réserves, en espèces ou en nature, et des primes d'émission ou de modifier la répartition de ses bénéfices par la création d'actions de préférence.
A cet effet, elle doit :
1° Soit mettre les titulaires de ces droits en mesure de les exercer, si la période prévue au contrat d'émission n'est pas encore ouverte, de telle sorte qu'ils puissent immédiatement participer aux opérations mentionnées au premier alinéa ou en bénéficier ;
2° Soit prendre les dispositions qui leur permettront, s'ils viennent à exercer leurs droits ultérieurement, de souscrire à titre irréductible les nouvelles valeurs mobilières émises, ou en obtenir l'attribution à titre gratuit, ou encore recevoir des espèces ou des biens semblables à ceux qui ont été distribués, dans les mêmes quantités ou proportions ainsi qu'aux mêmes conditions, sauf en ce qui concerne la jouissance, que s'ils avaient été, lors de ces opérations, actionnaires ;
3° Soit procéder à un ajustement des conditions de souscription, des bases de conversion, des modalités d'échange ou d'attribution initialement prévues de façon à tenir compte de l'incidence des opérations mentionnées au premier alinéa.
Sauf stipulations différentes du contrat d'émission, la société peut prendre simultanément les mesures prévues aux 1° et 2°. Elle peut, dans tous les cas, les remplacer par l'ajustement autorisé au 3°. Cet ajustement est organisé par le contrat d'émission lorsque les titres de capital ne sont pas admis aux négociations sur un marché réglementé.
Les conditions d'application du présent article sont fixées par décret en Conseil d'Etat.
Article L228-100
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Les dispositions des articles L. 228-98 et L. 228-99 sont applicables aussi longtemps qu'il existe des droits attachés à chacun des éléments des valeurs mobilières mentionnées à ces articles.
Article L228-101
Si la société appelée à émettre les titres de capital est absorbée par une autre société ou fusionne avec une ou plusieurs autres sociétés pour former une société nouvelle, ou procède à une scission, les titulaires de valeurs mobilières donnant accès au capital exercent leurs droits dans la ou les sociétés bénéficiaires des apports. L'article L. 228-65 n'est pas applicable, sauf stipulations contraires du contrat d'émission.
Le nombre de titres de capital de la ou des sociétés absorbantes ou nouvelles auquel ils peuvent prétendre est déterminé en corrigeant le nombre de titres qu'il est prévu d'émettre ou d'attribuer au contrat d'émission en fonction du nombre d'actions à créer par la ou les sociétés bénéficiaires des apports. Le commissaire aux apports émet un avis sur le nombre de titres ainsi déterminé.
L'approbation du projet de fusion ou de scission par les actionnaires de la ou des sociétés bénéficiaires des apports ou de la ou des sociétés nouvelles emporte renonciation par les actionnaires et, le cas échéant, par les titulaires de certificats d'investissement de ces sociétés, au droit préférentiel de souscription mentionné à l'article L. 228-35 ou, au deuxième alinéa de l'article L. 228-91, au profit des titulaires de valeurs mobilières donnant accès de manière différée au capital.
La ou les sociétés bénéficiaires des apports ou la ou les nouvelles sociétés sont substituées de plein droit à la société émettrice dans ses obligations envers les titulaires desdites valeurs mobilières.
Article L228-102
Sauf stipulations spéciales du contrat d'émission et hors le cas de dissolution anticipée ne résultant pas d'une fusion ou d'une scission, la société ne peut imposer aux titulaires de valeurs mobilières donnant accès à son capital le rachat ou le remboursement de leurs droits.
Article L228-103
Les titulaires de valeurs mobilières donnant accès à terme au capital après détachement, s'il y a lieu, des droits du titre d'origine en application de la présente section sont groupés de plein droit, pour la défense de leurs intérêts communs, en une masse qui jouit de la personnalité civile et est soumise à des dispositions identiques à celles qui sont prévues, en ce qui concerne les obligations, par les articles L. 228-47 à L. 228-64, L. 228-66 et L. 228-90. Il est formé, s'il y a lieu, une masse distincte pour chaque nature de titres donnant les mêmes droits.
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Les assemblées générales des titulaires de ces valeurs mobilières sont appelées à autoriser toutes modifications au contrat d'émission et à statuer sur toute décision touchant aux conditions de souscription ou d'attribution de titres de capital déterminées au moment de l'émission.
Chaque valeur mobilière donnant accès au capital donne droit à une voix. Les conditions de quorum et de majorité sont celles qui sont déterminées aux deuxième et troisième alinéas de l'article L. 225-96.
Les frais d'assemblée ainsi que, d'une façon générale, tous les frais afférents au fonctionnement des différentes masses sont à la charge de la société appelée à émettre ou attribuer de nouvelles valeurs mobilières représentatives de son capital social.
Lorsque les valeurs mobilières émises en application de la présente section sont des obligations destinées à être converties ou remboursées en titres de capital ou échangées contre des titres de capital, les dispositions des deuxième, troisième et quatrième alinéas du présent article sont applicables à la masse créée en application de l'article L. 228-46.
Article L228-104
Les délibérations ou stipulations prises en violation des articles L. 228-98 à L. 228-101 et L. 228-103 sont nulles.
Article L228-105
Les titulaires des valeurs mobilières donnant accès au capital disposent, dans les conditions fixées par décret en Conseil d'Etat, auprès de la société émettrice des titres qu'ils ont vocation à recevoir, d'un droit de communication des documents sociaux transmis par la société aux actionnaires ou aux titulaires de certificats d'investissement ou mis à leur disposition.
Lorsque les droits à l'attribution d'une quote-part du capital social sont incorporés ou attachés à des obligations, le droit de communication est exercé par les représentants de la masse des obligataires, conformément à l'article L. 228-55.
Après détachement de ces droits du titre d'origine, le droit de communication est exercé par les représentants de la masse constituée conformément à l'article L. 228-103.
Dans tous les cas, les représentants des différentes masses ont accès à l'assemblée générale des actionnaires, mais sans voix délibérative. Ils ne peuvent, en aucune façon, s'immiscer dans la gestion des affaires sociales.
Article L228-106
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Lorsqu'une procédure de sauvegarde ou de redressement judiciaire est ouverte à l'égard d'une société émettrice de valeurs mobilières donnant accès au capital dans les conditions de l'article L. 228-91, le délai prévu pour l'exercice du droit à attribution d'une quote-part de capital social est ouvert dès le jugement arrêtant le plan de sauvegarde ou de redressement judiciaire, au gré de chaque titulaire, et dans les conditions prévues par ce plan.
Chapitre IX : De la société européenne
Article L229-1
Les sociétés européennes immatriculées en France au registre du commerce et des sociétés ont la personnalité juridique à compter de leur immatriculation.
La société européenne est régie par les dispositions du règlement (CE) n° 2157/2001 du Conseil du 8 octobre 2001 relatif au statut de la société européenne, celles du présent chapitre et celles applicables aux sociétés anonymes non contraires à celles-ci.
La société européenne est soumise aux dispositions de l'article L. 210-3. Le siège statutaire et l'administration centrale de la société européenne ne peuvent être dissociés.
Article L229-2
Toute société européenne régulièrement immatriculée au registre du commerce et des sociétés peut transférer son siège dans un autre Etat membre de la Communauté européenne. Elle établit un projet de transfert. Ce projet est déposé au greffe du tribunal dans le ressort duquel la société est immatriculée et fait l'objet d'une publicité dont les modalités sont fixées par décret en Conseil d'Etat.
Le transfert de siège est décidé par l'assemblée générale extraordinaire dans les conditions prévues à l'article L. 225-96 et est soumis à la ratification des assemblées spéciales d'actionnaires mentionnées aux articles L. 225-99 et L. 228-35-6.
En cas d'opposition à l'opération, les actionnaires peuvent obtenir le rachat de leurs actions dans les conditions fixées par décret en Conseil d'Etat.
Le projet de transfert de siège est soumis aux assemblées spéciales des porteurs de certificats d'investissement statuant selon les règles de l'assemblée générale des actionnaires, à moins que la société n'acquière ces titres sur simple demande de leur part et que cette acquisition ait été acceptée par leur assemblée spéciale.L'offre d'acquisition est soumise à publicité dont les modalités sont fixées par décret en Conseil d'Etat. Tout porteur de certificats d'investissement qui n'a pas cédé ses titres dans le délai fixé par décret en Conseil d'Etat le demeure sous réserve d'un échange de ces
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certificats d'investissement et de droit de vote contre des actions.
Le projet de transfert est soumis à l'assemblée d'obligataires de la société, à moins que le remboursement des titres sur simple demande de leur part ne soit offert auxdits obligataires.L'offre de remboursement est soumise à publicité dont les modalités sont fixées par décret en Conseil d'Etat. Tout obligataire qui n'a pas demandé le remboursement dans le délai fixé par décret en Conseil d'Etat conserve sa qualité dans la société aux conditions fixées dans le projet de transfert.
Les créanciers non obligataires de la société transférant son siège et dont la créance est antérieure au transfert du siège peuvent former opposition à celui-ci dans le délai fixé par décret en Conseil d'Etat. Une décision de justice rejette l'opposition ou ordonne soit le remboursement des créances, soit la constitution de garanties si la société transférant son siège en offre et si elles sont jugées suffisantes.A défaut de remboursement des créances ou de constitution des garanties ordonnées, le transfert de siège est inopposable à ces créanciers.L'opposition formée par un créancier n'a pas pour effet d'interdire la poursuite des opérations de transfert. Les dispositions du présent alinéa ne mettent pas obstacle à l'application des conventions autorisant le créancier à exiger le remboursement immédiat de sa créance en cas de transfert de siège.
Un notaire délivre un certificat attestant de manière concluante l'accomplissement des actes et formalités préalables au transfert.
Article L229-3
I.-Dans un délai fixé par voie réglementaire, le greffier du tribunal dans le ressort duquel la société participant à l'opération est immatriculée délivre, après avoir procédé à la vérification prévue à l'article L. 236-6, une attestation de conformité des actes et des formalités préalables à la fusion.
Un notaire ou le greffier du tribunal dans le ressort duquel la société issue de la fusion sera immatriculée contrôle, dans un délai fixé par voie réglementaire, la légalité de la réalisation de la fusion et de la constitution de la société nouvelle issue de la fusion.
A cette fin, chaque société qui fusionne remet au notaire ou au greffier le certificat visé à l'article 25 du règlement (CE) n° 2157 / 2001 du Conseil du 8 octobre 2001 précité dans un délai de six mois à compter de sa délivrance ainsi qu'une copie du projet de fusion approuvé par la société.
Le notaire ou le greffier contrôle en particulier que les sociétés qui fusionnent ont approuvé un projet de fusion dans les mêmes termes et que les modalités relatives à l'implication des salariés ont été fixées conformément aux chapitres Ier à III du titre V du livre II de la deuxième partie du code du travail.
Il contrôle en outre que la constitution de la société européenne formée par fusion correspond aux conditions fixées par les dispositions législatives françaises.
II.-Les causes de nullité de la délibération de l'une des assemblées qui ont décidé de l'opération de fusion conformément au droit applicable à la société anonyme ou les manquements au contrôle de légalité constituent une cause de dissolution de la société européenne.
Lorsqu'il est possible de porter remède à l'irrégularité susceptible d'entraîner la dissolution, le tribunal saisi de l'action en dissolution d'une société européenne créée par fusion accorde un délai
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pour régulariser la situation.
Les actions en dissolution de la société européenne se prescrivent par six mois à compter de la date de la dernière inscription au registre du commerce et des sociétés rendue nécessaire par l'opération.
Lorsque la dissolution de la société européenne est prononcée, il est procédé à sa liquidation conformément aux dispositions des statuts et du chapitre VII du titre III du présent livre.
Lorsqu'une décision judiciaire prononçant la dissolution d'une société européenne pour l'une des causes prévues au sixième alinéa du présent article est devenue définitive, cette décision fait l'objet d'une publicité dont les modalités sont fixées par décret en Conseil d'Etat.
Article L229-4
L'autorité compétente pour s'opposer, conformément aux dispositions du 14 de l'article 8 et de l'article 19 du règlement (CE) n° 2157/2001 du Conseil du 8 octobre 2001, précité, au transfert de siège social d'une société européenne immatriculée en France et dont résulterait un changement du droit applicable ainsi qu'à la constitution d'une société européenne par voie de fusion impliquant une société relevant du droit français, est le procureur de la République.
Il se saisit d'office ou est saisi par toute personne ou autorité qui estime qu'une telle opération est contraire à un intérêt public. La décision du procureur de la République est susceptible de recours devant la cour d'appel de Paris.
Article L229-5
Les sociétés promouvant l'opération de constitution d'une société européenne holding établissent un projet commun de constitution de la société européenne.
Ce projet est déposé au greffe du tribunal dans le ressort duquel lesdites sociétés sont immatriculées et fait l'objet d'une publicité dont les modalités sont fixées par décret en Conseil d'Etat.
Un ou plusieurs commissaires à la constitution d'une société européenne holding, désignés par décision de justice, établissent sous leur responsabilité un rapport destiné aux actionnaires de chaque société dont les mentions sont précisées par décret en Conseil d'Etat.
Par accord entre les sociétés qui promeuvent l'opération, le ou les commissaires peuvent établir un rapport écrit pour les actionnaires de l'ensemble des sociétés.
Les dispositions des troisième et quatrième alinéas de l'article L. 236-9 et des articles L. 236-13 et L. 236-14 sont applicables en cas de constitution d'une société européenne holding.
Article L229-6
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Par exception à la deuxième phrase de l'article L. 225-1, une société européenne peut constituer une société européenne dont elle est le seul actionnaire. Elle est soumise aux dispositions applicables à la société européenne et à celles relatives à la société à responsabilité limitée à associé unique édictées par les articles L. 223-5 et L. 223-31.
Dans cette hypothèse, l'actionnaire unique exerce les pouvoirs dévolus à l'assemblée générale.
En cas de société européenne unipersonnelle, les articles L. 225-25, L. 225-26, L. 225-72 et L. 225-73 ne s'appliquent pas aux administrateurs ou membres du conseil de surveillance de cette société.
Article L229-7
La direction et l'administration de la société européenne sont régies par les dispositions de la section 2 du chapitre V du présent titre, à l'exception du premier alinéa des articles L. 225-37 et L. 225-82 et du quatrième alinéa de l'article L. 225-64.
Toutefois, par exception à l'article L. 225-62, en cas de vacance au sein du directoire, un membre du conseil de surveillance peut être nommé par ce conseil pour exercer les fonctions de membre du directoire pour une durée maximale fixée par décret en Conseil d'Etat. Pendant cette durée, les fonctions de l'intéressé au sein du conseil de surveillance sont suspendues.
Les dispositions du premier alinéa de l'article L. 225-17, du deuxième alinéa de l'article L. 225-22, de l'article L. 225-69 et du deuxième alinéa de l'article L. 225-79 ne peuvent faire obstacle à la participation des travailleurs définie à l'article L. 439-25 du code du travail.
Chaque membre du conseil de surveillance peut se faire communiquer par le président du directoire les documents qu'il estime nécessaires à l'accomplissement de sa mission.
La société européenne est dirigée par un directoire composé de sept membres au plus.
Les statuts doivent prévoir des règles similaires à celles énoncées aux articles L. 225-38 à L. 225-42 et L. 225-86 à L. 225-90. Toutefois, lorsqu'il s'agit d'une société visée à l'article L. 229-6, la mention au registre des délibérations vaut approbation de la convention.
Article L229-8
Les assemblées générales de la société européenne sont soumises aux règles prescrites par la section 3 du chapitre V du présent titre dans la mesure où elles sont compatibles avec le règlement (CE) n° 2157/2001 du Conseil, du 8 octobre 2001, précité.
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Article L229-9
Si la société européenne n'a plus son administration centrale en France, tout intéressé peut demander au tribunal la régularisation de la situation par le transfert du siège social ou le rétablissement de l'administration centrale au lieu du siège social en France, le cas échéant sous astreinte.
Le tribunal fixe une durée maximale pour cette régularisation.
A défaut de régularisation à l'issue de ce délai, le tribunal prononce la liquidation de la société dans les conditions prévues aux articles L. 237-1 à L. 237-31.
Ces décisions sont adressées par le greffe du tribunal au procureur de la République. Le juge indique dans sa décision que le jugement est transmis par le greffe.
En cas de constat de déplacement de l'administration centrale en France d'une société européenne immatriculée dans un autre Etat membre de la Communauté européenne, contrevenant à l'article 7 du règlement (CE) n° 2157 / 2001 du Conseil, du 8 octobre 2001, précité, le procureur de la République du tribunal de grande instance dans le ressort duquel l'administration centrale est installée doit informer sans délai l'Etat membre du siège statutaire.
En cas de constat de déplacement de l'administration centrale dans un autre Etat membre de la Communauté européenne d'une société européenne immatriculée en France, contrevenant à l'article 7 du règlement (CE) n° 2157 / 2001 du Conseil, du 8 octobre 2001, précité, les autorités de cet Etat membre doivent informer sans délai le procureur de la République du tribunal de grande instance dans le ressort duquel la société est immatriculée.
Article L229-10
Toute société européenne peut se transformer en société anonyme si, au moment de la transformation, elle est immatriculée depuis plus de deux ans et a fait approuver le bilan de ses deux premiers exercices.
La société établit un projet de transformation de la société en société anonyme. Ce projet est déposé au greffe du tribunal du siège de la société et fait l'objet d'une publicité dont les modalités sont fixées par décret en Conseil d'Etat.
Un ou plusieurs commissaires à la transformation désignés par décision de justice établissent sous leur responsabilité un rapport destiné aux actionnaires de la société se transformant attestant que les capitaux propres sont au moins équivalents au capital social. Ils sont soumis aux incompatibilités prévues à l'article L. 822-11.
La transformation en société anonyme est décidée selon les dispositions prévues aux articles L. 225-96 et L. 225-99.
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Article L229-11
Les statuts d'une société européenne qui n'entend pas offrir au public ses actions peuvent soumettre tout transfert d'actions à des restrictions à la libre négociabilité sans que ces restrictions ne puissent avoir pour effet de rendre ces actions inaliénables pour une durée excédant dix ans.
Toute cession réalisée en violation de ces clauses statutaires est nulle. Cette nullité est opposable au cessionnaire ou à ses ayants droit. Elle peut être régularisée par une décision prise à l'unanimité des actionnaires non parties au contrat ou à l'opération visant à transférer les actions.
Article L229-12
Dans les conditions qu'ils déterminent, les statuts d'une société européenne qui n'entend pas offrir au public ses actions peuvent prévoir qu'un actionnaire peut être tenu de céder ses actions. Ils peuvent également prévoir la suspension des droits non pécuniaires de cet actionnaire tant que celui-ci n'a pas procédé à cette cession.
Article L229-13
Les statuts d'une société européenne qui n'entend pas offrir au public ses actions peuvent prévoir que la société actionnaire dont le contrôle est modifié au sens de l'article L. 233-16 doit, dès cette modification, en informer la société européenne. Celle-ci peut décider, dans les conditions fixées par les statuts, de suspendre l'exercice des droits non pécuniaires de cet actionnaire et de l'exclure.
Les dispositions du premier alinéa peuvent s'appliquer, dans les mêmes conditions, à l'actionnaire qui a acquis cette qualité à la suite d'une opération de fusion, de scission ou de dissolution.
Article L229-14
Si les statuts ne précisent pas les modalités d'évaluation du prix de cession des actions lorsque la société européenne met en oeuvre une clause introduite en application des articles L. 229-11 à L. 229-13, ce prix est fixé par accord entre les parties ou, à défaut, déterminé dans les conditions prévues à l'article 1843-4 du code civil.
Lorsque les actions sont rachetées par la société européenne, celle-ci est tenue de les céder dans un délai de six mois ou de les annuler.
Article L229-15
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Les clauses stipulées en application des articles L. 229-11 à L. 229-14 ne sont adoptées ou modifiées qu'à l'unanimité des actionnaires.
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Partie législative
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique
TITRE III : Dispositions communes aux diverses sociétés commerciales
Chapitre Ier : Du capital variable
Article L231-1
Il peut être stipulé dans les statuts des sociétés qui n'ont pas la forme de société anonyme ainsi que dans toute société coopérative que le capital social est susceptible d'augmentation par des versements successifs des associés ou l'admission d'associés nouveaux et de diminution par la reprise totale ou partielle des apports effectués.
Les sociétés dont les statuts contiennent la stipulation ci-dessus sont soumises, indépendamment des règles générales qui leur sont propres suivant leur forme spéciale, aux dispositions du présent chapitre.
Article L231-2
Si la société a usé de la faculté accordée par l'article L. 231-1 cette circonstance doit être mentionnée dans tous les actes et documents émanant de la société et destinés aux tiers, par l'addition des mots " à capital variable ".
Article L231-3
Ne sont pas assujettis aux formalités de dépôt et de publication les actes constatant les augmentations ou les diminutions du capital social opérées dans les termes de l'article L. 231-1, ou les retraits d'associés, autres que les gérants ou administrateurs, qui auraient lieu conformément à l'article L. 231-6.
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Article L231-4
Les actions ou coupons d'actions sont nominatifs, même après leur entière libération.
Ils ne sont négociables qu'après la constitution définitive de la société.
La négociation ne peut avoir lieu que par voie de transfert sur les registres de la société, et les statuts peuvent donner, soit au conseil d'administration, soit à l'assemblée générale, le droit de s'opposer au transfert.
Article L231-5
Les statuts déterminent une somme au-dessous de laquelle le capital ne peut être réduit par les reprises des apports autorisés par l'article L. 231-1.
Cette somme ne pourra être inférieure ni au dixième du capital social stipulé dans les statuts ni, pour les sociétés autres que coopératives, au montant minimal du capital exigé pour la forme de la société considérée par les dispositions législatives la régissant.
Les sociétés coopératives sont définitivement constituées après le versement du dixième.
Article L231-6
Chaque associé peut se retirer de la société lorsqu'il le juge convenable à moins de conventions contraires et sauf application du premier alinéa de l'article L. 231-5.
Il peut être stipulé que l'assemblée générale a le droit de décider, à la majorité fixée pour la modification des statuts, que l'un ou plusieurs des associés cessent de faire partie de la société.
L'associé qui cesse de faire partie de la société, soit par l'effet de sa volonté, soit par suite de décision de l'assemblée générale, reste tenu, pendant cinq ans, envers les associés et envers les tiers, de toutes les obligations existant au moment de sa retraite.
Article L231-7
La société, quelle que soit sa forme, est valablement représentée en justice par ses administrateurs.
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Article L231-8
La société n'est dissoute ni par la mort ou par le retrait d'un associé ni par un jugement de liquidation, ou par une mesure d'interdiction d'exercer une profession commerciale, ou par une mesure d'incapacité prononcée à l'égard de l'un des associés ou la déconfiture de l'un d'entre eux. Elle continue de plein droit entre les autres associés.
Chapitre II : Des comptes sociaux
Section 1 : Des documents comptables
Article L232-1
I. - A la clôture de chaque exercice le conseil d'administration, le directoire ou les gérants dressent l'inventaire, les comptes annuels conformément aux dispositions de la section 2 du chapitre III du titre II du livre Ier et établissent un rapport de gestion écrit. Ils annexent au bilan :
1° Un état des cautionnements, avals et garanties donnés par la société. Cette disposition n'est pas applicable aux sociétés exploitant un établissement de crédit ou une entreprise d'assurance ;
2° Un état des sûretés consenties par elle.
II. - Le rapport de gestion expose la situation de la société durant l'exercice écoulé, son évolution prévisible, les événements importants survenus entre la date de la clôture de l'exercice et la date à laquelle il est établi, ses activités en matière de recherche et de développement.
III. - Les documents mentionnés au présent article sont, le cas échéant, mis à la disposition des commissaires aux comptes dans des conditions déterminées par décret en Conseil d'Etat.
IV. - Sont dispensées de l'obligation d'établir un rapport de gestion les sociétés à responsabilité limitée et les sociétés par actions simplifiées dont l'associé unique, personne physique, assume personnellement la gérance ou la présidence, et qui ne dépassent pas à la clôture d'un exercice social deux des seuils fixés par décret en Conseil d'Etat relatifs au total de leur bilan, au montant de leur chiffre d'affaires hors taxe et au nombre moyen de leurs salariés au cours de l'exercice.
Article L232-2
Dans les sociétés commerciales qui répondent à l'un des critères définis par décret en Conseil d'Etat et tirés du nombre de salariés ou du chiffre d'affaires, compte tenu éventuellement de la nature de l'activité, le conseil d'administration, le directoire ou les gérants sont tenus d'établir une situation de
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l'actif réalisable et disponible, valeurs d'exploitation exclues, et du passif exigible, un compte de résultat prévisionnel, un tableau de financement en même temps que le bilan annuel et un plan de financement prévisionnel.
Le décret en Conseil d'Etat ci-dessus mentionné précise la périodicité, les délais et les modalités d'établissement de ces documents.
Pour la détermination du nombre des salariés, sont assimilés aux salariés de la société, ceux des sociétés, quelle que soit leur forme, dont elle détient directement ou indirectement plus de la moitié du capital.
Article L232-3
Dans les sociétés anonymes, les documents visés à l'article L. 232-2 sont analysés dans des rapports écrits sur l'évolution de la société, établis par le conseil d'administration ou le directoire. Les documents et rapports sont communiqués simultanément au conseil de surveillance, au commissaire aux comptes et au comité d'entreprise.
En cas de non-observation des dispositions de l'article L. 232-2 et de l'alinéa précédent, ou si les informations données dans les rapports visés à l'alinéa précédent appellent des observations de sa part, le commissaire aux comptes le signale dans un rapport au conseil d'administration ou au directoire, selon le cas. Le rapport du commissaire aux comptes est communiqué simultanément au comité d'entreprise. Il est donné connaissance de ce rapport à la prochaine assemblée générale.
Article L232-4
Dans les sociétés autres que les sociétés anonymes, les rapports prévus à l'article L. 232-3 sont établis par les gérants qui les communiquent au commissaire aux comptes, au comité d'entreprise et, le cas échéant, au conseil de surveillance lorsqu'il est institué dans ces sociétés.
En cas de non-observation des dispositions de l'article L. 232-2 et de l'alinéa précédent, ou si les informations données dans les rapports visés à l'alinéa précédent appellent des observations de sa part, le commissaire aux comptes le signale dans un rapport au gérant ou dans le rapport annuel. Il peut demander que son rapport soit adressé aux associés ou qu'il en soit donné connaissance à l'assemblée des associés. Ce rapport est communiqué au comité d'entreprise.
Article L232-5
Les sociétés qui établissent des comptes consolidés conformément aux articles L. 233-18 à L. 233-26 peuvent, dans les conditions prévues à l'article L. 123-17 et par dérogation à l'article L. 123-18, inscrire les titres des sociétés qu'elles contrôlent de manière exclusive, au sens de l'article L. 233-16, à l'actif du bilan en fonction de la quote-part des capitaux propres déterminée d'après les règles de consolidation que ces titres représentent. Cette méthode d'évaluation, si elle est choisie,
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s'applique à l'ensemble des titres qui répondent aux conditions précédentes. Il est fait mention de l'option dans l'annexe.
La contrepartie de la variation annuelle de la quote-part globale de capitaux propres représentative de ces titres ne constitue pas un élément de résultat ; elle est inscrite distinctement dans un poste de capitaux propres ; elle n'est pas distribuable et ne peut être utilisée à compenser les pertes. Néanmoins, si l'écart global devient négatif, il est inscrit au compte de résultat.
Si une société fait usage de la méthode prévue aux alinéas précédents, les sociétés qu'elle contrôle appliquent la même méthode lorsqu'elles contrôlent elles-mêmes d'autres sociétés dans les mêmes conditions.
Un décret en Conseil d'Etat fixe les modalités d'application du présent article.
Article L232-6
Lorsque, dans les conditions définies à l'article L. 123-17, des modifications interviennent dans la présentation des comptes annuels comme dans les méthodes d'évaluation retenues, elles sont de surcroît signalées dans le rapport de gestion et, le cas échéant, dans le rapport des commissaires aux comptes.
Section 2 : Des documents propres aux sociétés faisant publiquement appel à l'épargne
Article L232-7
Les sociétés dont les actions sont admises aux négociations sur un marché réglementé annexent à leurs comptes annuels un tableau relatif à la répartition et à l'affectation des sommes distribuables qui seront proposées à l'assemblée générale.
Les I, III, IV et VII de l'article L. 451-1-2 du code monétaire et financier sont applicables aux sociétés mentionnées au premier alinéa, à l'exception des sociétés d'investissement à capital variable.
Section 3 : Des amortissements et des provisions
Article L232-9
Sous réserve des dispositions du deuxième alinéa de l'article L. 232-15, les frais de constitution de la société sont amortis avant toute distribution de bénéfices et, au plus tard, dans un délai de cinq
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ans.
Les frais d'augmentation de capital sont amortis au plus tard à l'expiration du cinquième exercice suivant celui au cours duquel ils ont été engagés. Ces frais peuvent être imputés sur le montant des primes d'émission afférentes à cette augmentation.
Toutefois, les sociétés dont l'objet exclusif est la construction et la gestion d'immeubles locatifs à usage principal d'habitation ou le crédit-bail immobilier, ainsi que les sociétés immobilières pour le commerce et l'industrie, peuvent amortir les frais de constitution de la société et les frais d'augmentation de capital dans les mêmes conditions que leurs immeubles. Les sociétés agréées pour le financement des télécommunications peuvent amortir les frais de constitution et les frais d'augmentation de capital dans les mêmes conditions que leurs immeubles et leurs équipements.
Section 4 : Des bénéfices
Article L232-10
A peine de nullité de toute délibération contraire, dans les sociétés à responsabilité limitée et les sociétés par actions, il est fait sur le bénéfice de l'exercice, diminué, le cas échéant, des pertes antérieures, un prélèvement d'un vingtième au moins affecté à la formation d'un fonds de réserve dit " réserve légale ".
Ce prélèvement cesse d'être obligatoire, lorsque la réserve atteint le dixième du capital social.
Article L232-11
Le bénéfice distribuable est constitué par le bénéfice de l'exercice, diminué des pertes antérieures, ainsi que des sommes à porter en réserve en application de la loi ou des statuts, et augmenté du report bénéficiaire.
En outre, l'assemblée générale peut décider la mise en distribution de sommes prélevées sur les réserves dont elle a la disposition. En ce cas, la décision indique expressément les postes de réserve sur lesquels les prélèvements sont effectués. Toutefois, les dividendes sont prélevés par priorité sur le bénéfice distribuable de l'exercice.
Hors le cas de réduction du capital, aucune distribution ne peut être faite aux actionnaires lorsque les capitaux propres sont ou deviendraient à la suite de celle-ci inférieurs au montant du capital augmenté des réserves que la loi ou les statuts ne permettent pas de distribuer.
L'écart de réévaluation n'est pas distribuable. Il peut être incorporé en tout ou partie au capital.
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Article L232-12
Après approbation des comptes annuels et constatation de l'existence de sommes distribuables, l'assemblée générale détermine la part attribuée aux associés sous forme de dividendes.
Toutefois, lorsqu'un bilan établi au cours ou à la fin de l'exercice et certifié par un commissaire aux comptes fait apparaître que la société, depuis la clôture de l'exercice précédent, après constitution des amortissements et provisions nécessaires, déduction faite s'il y a lieu des pertes antérieures ainsi que des sommes à porter en réserve en application de la loi ou des statuts et compte tenu du report bénéficiaire, a réalisé un bénéfice, il peut être distribué des acomptes sur dividendes avant l'approbation des comptes de l'exercice. Le montant de ces acomptes ne peut excéder le montant du bénéfice défini au présent alinéa. Ils sont répartis aux conditions et suivant les modalités fixées par décret en Conseil d'Etat.
Tout dividende distribué en violation des règles ci-dessus énoncées est un dividende fictif.
Article L232-13
Les modalités de mise en paiement des dividendes votés par l'assemblée générale sont fixées par elle ou, à défaut, par le conseil d'administration, le directoire ou les gérants, selon le cas.
Toutefois, la mise en paiement des dividendes doit avoir lieu dans un délai maximal de neuf mois après la clôture de l'exercice. La prolongation de ce délai peut être accordée par décision de justice.
Article L232-14
Une majoration de dividendes dans la limite de 10 % peut être attribuée par des statuts à tout actionnaire qui justifie, à la clôture de l'exercice, d'une inscription nominative depuis deux ans au moins et du maintien de celle-ci à la date de mise en paiement du dividende. Son taux est fixé par l'assemblée générale extraordinaire. Dans les sociétés dont les titres de capital sont admis aux négociations sur un marché réglementé, le nombre de titres éligibles à cette majoration de dividendes ne peut excéder, pour un même actionnaire, 0, 5 % du capital de la société. La même majoration peut être attribuée, dans les mêmes conditions en cas de distribution d'actions gratuites.
Cette majoration ne peut être attribuée avant la clôture du deuxième exercice suivant la modification des statuts.
Article L232-15
Il est interdit de stipuler un intérêt fixe ou intercalaire au profit des associés. Toute clause contraire est réputée non écrite.
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Les dispositions de l'alinéa précédent ne sont pas applicables, lorsque l'Etat a accordé aux actions la garantie d'un dividende minimal.
Article L232-16
Les statuts peuvent prévoir l'attribution, à titre de premier dividende, d'un intérêt calculé sur le montant libéré et non remboursé des actions. Sauf disposition contraire des statuts, les réserves ne sont pas prises en compte pour le calcul du premier dividende.
Article L232-17
La société ne peut exiger des actionnaires ou porteurs de parts aucune répétition de dividendes, sauf lorsque les deux conditions suivantes sont réunies :
1° Si la distribution a été effectuée en violation des dispositions des articles L. 232-11, L. 232-12 et L. 232-15 ;
2° Si la société établit que les bénéficiaires avaient connaissance du caractère irrégulier de cette distribution au moment de celle-ci ou ne pouvaient l'ignorer compte tenu des circonstances.
Article L232-18
Dans les sociétés par actions, les statuts peuvent prévoir que l'assemblée statuant sur les comptes de l'exercice a la faculté d'accorder à chaque actionnaire, pour tout ou partie du dividende mis en distribution ou des acomptes sur dividende, une option entre le paiement du dividende ou des acomptes sur dividende en numéraire ou en actions.
Lorsqu'il existe des catégories différentes d'actions, l'assemblée générale statuant sur les comptes de l'exercice a la faculté de décider que les actions souscrites seront de la même catégorie que les actions ayant donné droit au dividende ou aux acomptes sur dividende.
L'offre de paiement du dividende ou des acomptes sur dividende en actions doit être faite simultanément à tous les actionnaires.
Article L232-19
Le prix d'émission des actions émises dans les conditions prévues à l'article L. 232-18 ne peut être inférieur au nominal.
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Dans les sociétés dont les actions sont admises aux négociations sur un marché réglementé, le prix d'émission ne peut être inférieur à 90 % de la moyenne des cours cotés aux vingt séances de bourse précédant le jour de la décision de mise en distribution diminuée du montant net du dividende ou des acomptes sur dividende.
Dans les autres sociétés, le prix d'émission est fixé, au choix de la société, soit en divisant le montant de l'actif net calculé d'après le bilan le plus récent par le nombre de titres existants, soit à dire d'expert désigné en justice à la demande du conseil d'administration ou du directoire, selon le cas. L'application des règles de détermination du prix d'émission est vérifiée par le commissaire aux comptes qui présente un rapport spécial à l'assemblée générale visée à l'article L. 232-18.
Lorsque le montant des dividendes ou des acomptes sur dividende auquel il a droit ne correspond pas à un nombre entier d'actions, l'actionnaire peut recevoir le nombre d'actions immédiatement inférieur complété d'une soulte en espèces ou, si l'assemblée générale l'a demandé, le nombre d'actions immédiatement supérieur, en versant la différence en numéraire.
Article L232-20
La demande de paiement du dividende en actions, accompagnée, le cas échéant, du versement prévu au deuxième alinéa de l'article L. 232-19 doit intervenir dans un délai fixé par l'assemblée générale, sans qu'il puisse être supérieur à trois mois à compter de la date de ladite assemblée générale. L'augmentation de capital est réalisée du seul fait de cette demande, et, le cas échéant, de ce versement et ne donne pas lieu aux formalités prévues à l'article L. 225-142, au deuxième alinéa de l'article L. 225-144, et à l'article L. 225-146.
Toutefois, en cas d'augmentation du capital, le conseil d'administration ou le directoire, selon le cas, peut suspendre l'exercice du droit d'obtenir le paiement du dividende en actions pendant un délai qui ne peut excéder trois mois.
Lors de sa première réunion suivant l'expiration du délai fixé par l'assemblée générale en application du premier alinéa du présent article, le conseil d'administration ou, selon le cas, le directoire, constate le nombre des actions émises en application du présent article et apporte les modifications nécessaires aux clauses des statuts relatives au montant du capital social et au nombre des actions qui le représentent. Le président peut, sur délégation du conseil d'administration ou du directoire, procéder à ces opérations dans le mois qui suit l'expiration du délai fixé par l'assemblée générale.
Section 5 : De la publicité des comptes
Article L232-21
I. - Les sociétés en nom collectif dont tous les associés indéfiniment responsables sont des sociétés à responsabilité limitée ou des sociétés par actions sont tenues de déposer, en double exemplaire, au
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greffe du tribunal, pour être annexés au registre du commerce et des sociétés, dans le mois qui suit l'approbation des comptes annuels par l'assemblée ordinaire des associés :
1° Les comptes annuels, le rapport de gestion et, le cas échéant, les comptes consolidés, le rapport sur la gestion du groupe, les rapports des commissaires aux comptes sur les comptes annuels et les comptes consolidés, éventuellement complétés de leurs observations sur les modifications apportées par l'assemblée qui leur ont été soumis ;
2° La proposition d'affectation du résultat soumis à l'assemblée et la résolution d'affectation votée ou la décision d'affectation prise.
II. - En cas de refus d'approbation ou d'acceptation, une copie de la délibération de l'assemblée est déposée dans le même délai.
III. - Les obligations définies ci-dessus s'imposent également aux sociétés en nom collectif dont tous les associés indéfiniment responsables sont des sociétés en nom collectif ou en commandite simple dont tous les associés indéfiniment responsables sont des sociétés à responsabilité limitée ou par actions.
IV. - Pour l'application du présent article, sont assimilées aux sociétés à responsabilité limitée ou par actions les sociétés de droit étranger d'une forme juridique comparable.
Article L232-22
I. - Toute société à responsabilité limitée est tenue de déposer, en double exemplaire, au greffe du tribunal, pour être annexés au registre du commerce et des sociétés, dans le mois qui suit l'approbation des comptes annuels par l'assemblée ordinaire des associés ou par l'associé unique :
1° Les comptes annuels, le rapport de gestion et, le cas échéant, les comptes consolidés, le rapport sur la gestion du groupe, les rapports des commissaires aux comptes sur les comptes annuels et les comptes consolidés, éventuellement complétés de leurs observations sur les modifications apportées par l'assemblée ou l'associé unique aux comptes annuels qui leur ont été soumis ;
2° La proposition d'affectation du résultat soumise à l'assemblée ou à l'associé unique et la résolution d'affectation votée ou la décision d'affectation prise.
Lorsque l'associé unique, personne physique, assume personnellement la gérance de la société, il est fait exception à l'obligation de déposer le rapport de gestion, qui doit toutefois être tenu à la disposition de toute personne qui en fait la demande.
II. - En cas de refus d'approbation ou d'acceptation, une copie de la délibération de l'assemblée ou de la décision de l'associé unique est déposée dans le même délai.
Article L232-23
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I. - Toute société par actions est tenue de déposer, en double exemplaire, au greffe du tribunal, pour être annexés au registre du commerce et des sociétés, dans le mois qui suit l'approbation des comptes annuels par l'assemblée générale des actionnaires :
1° Les comptes annuels, le rapport de gestion, le rapport des commissaires aux comptes sur les comptes annuels, éventuellement complété de leurs observations sur les modifications apportées par l'assemblée aux comptes annuels qui ont été soumis à cette dernière ainsi que, le cas échéant, les comptes consolidés, le rapport sur la gestion du groupe, le rapport des commissaires aux comptes sur les comptes consolidés et le rapport du conseil de surveillance ;
2° La proposition d'affectation du résultat soumise à l'assemblée et la résolution d'affectation votée.
Lorsque l'associé unique, personne physique, d'une société par actions simplifiée assume personnellement la présidence de la société, il est fait exception à l'obligation de déposer le rapport de gestion qui doit toutefois être tenu à la disposition de toute personne qui en fait la demande.
II. - En cas de refus d'approbation des comptes annuels, une copie de la délibération de l'assemblée est déposée dans le même délai.
Chapitre III : Des filiales, des participations et des sociétés contrôlées
Section 1 : Définitions
Article L233-1
Lorsqu'une société possède plus de la moitié du capital d'une autre société, la seconde est considérée, pour l'application du présent chapitre, comme filiale de la première.
Article L233-2
Lorsqu'une société possède dans une autre société une fraction du capital comprise entre 10 et 50 %, la première est considérée, pour l'application du présent chapitre, comme ayant une participation dans la seconde.
Article L233-3
I. - Une société est considérée, pour l'application des sections 2 et 4 du présent chapitre, comme en
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contrôlant une autre :
1° Lorsqu'elle détient directement ou indirectement une fraction du capital lui conférant la majorité des droits de vote dans les assemblées générales de cette société ;
2° Lorsqu'elle dispose seule de la majorité des droits de vote dans cette société en vertu d'un accord conclu avec d'autres associés ou actionnaires et qui n'est pas contraire à l'intérêt de la société ;
3° Lorsqu'elle détermine en fait, par les droits de vote dont elle dispose, les décisions dans les assemblées générales de cette société ;
4° Lorsqu'elle est associée ou actionnaire de cette société et dispose du pouvoir de nommer ou de révoquer la majorité des membres des organes d'administration, de direction ou de surveillance de cette société.
II. - Elle est présumée exercer ce contrôle lorsqu'elle dispose directement ou indirectement, d'une fraction des droits de vote supérieure à 40 % et qu'aucun autre associé ou actionnaire ne détient directement ou indirectement une fraction supérieure à la sienne.
III. - Pour l'application des mêmes sections du présent chapitre, deux ou plusieurs personnes agissant de concert sont considérées comme en contrôlant conjointement une autre lorsqu'elles déterminent en fait les décisions prises en assemblée générale.
Article L233-4
Toute participation au capital même inférieure à 10 % détenue par une société contrôlée est considérée comme détenue indirectement par la société qui contrôle cette société.
Article L233-5
Le ministère public et l'Autorité des marchés financiers pour les sociétés dont les actions sont admises aux négociations sur un marché d'instruments financiers mentionné au II de l'article L. 233-7 sont habilités à agir en justice pour faire constater l'existence d'un contrôle sur une ou plusieurs sociétés.
Section 2 : Des notifications et des informations
Article L233-6
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Lorsqu'une société a pris, au cours d'un exercice, une participation dans une société ayant son siège social sur le territoire de la République française représentant plus du vingtième, du dixième, du cinquième, du tiers ou de la moitié du capital de cette société ou s'est assuré le contrôle d'une telle société, il en est fait mention dans le rapport présenté aux associés sur les opérations de l'exercice et, le cas échéant, dans le rapport des commissaires aux comptes.
Le conseil d'administration, le directoire ou le gérant d'une société rend compte dans son rapport de l'activité et des résultats de l'ensemble de la société, des filiales de la société et des sociétés qu'elle contrôle par branche d'activité. Lorsque cette société établit et publie des comptes consolidés, le rapport ci-dessus mentionné peut être inclus dans le rapport sur la gestion du groupe mentionné à l'article L. 233-26.
Article L233-7
I.-Lorsque les actions d'une société ayant son siège sur le territoire de la République sont admises aux négociations sur un marché réglementé d'un Etat partie à l'accord sur l'Espace économique européen ou sur un marché d'instruments financiers admettant aux négociations des actions pouvant être inscrites en compte chez un intermédiaire mentionné à l'article L. 211-3 du code monétaire et financier, toute personne physique ou morale agissant seule ou de concert qui vient à posséder un nombre d'actions représentant plus du vingtième, du dixième, des trois vingtièmes, du cinquième, du quart, du tiers, de la moitié, des deux tiers, des dix-huit vingtièmes ou des dix-neuf vingtièmes du capital ou des droits de vote informe la société dans un délai fixé par décret en Conseil d'Etat, à compter du franchissement du seuil de participation, du nombre total d'actions ou de droits de vote qu'elle possède.
L'information mentionnée à l'alinéa précédent est également donnée dans les mêmes délais lorsque la participation en capital ou en droits de vote devient inférieure aux seuils mentionnés par cet alinéa.
La personne tenue à l'information prévue au premier alinéa précise en outre dans sa déclaration :
a) Le nombre de titres qu'elle possède donnant accès à terme aux actions à émettre et les droits de vote qui y seront attachés ;
b) Les actions déjà émises que cette personne peut acquérir, en vertu d'un accord ou d'un instrument financier mentionné à l' article L. 211-1 du code monétaire et financier , sans préjudice des dispositions du 4° du I de l'article L. 233-9 du présent code. Il en est de même pour les droits de vote que cette personne peut acquérir dans les mêmes conditions ;
c) Les actions déjà émises sur lesquelles porte tout accord ou instrument financier mentionné à l' article L. 211-1 du code monétaire et financier , réglé exclusivement en espèces et ayant pour cette personne un effet économique similaire à la possession desdites actions. Il en va de même pour les droits de vote sur lesquels porte dans les mêmes conditions tout accord ou instrument financier (1).
II.-La personne tenue à l'information mentionnée au I informe également l'Autorité des marchés financiers, dans un délai et selon des modalités fixés par son règlement général, à compter du franchissement du seuil de participation, lorsque les actions de la société sont admises aux négociations sur un marché réglementé ou sur un marché d'instruments financiers autre qu'un marché réglementé, à la demande de la personne qui gère ce marché d'instruments financiers. Dans ce dernier cas, l'information peut ne porter que sur une partie des seuils mentionnés au I, dans les
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conditions fixées par le règlement général de l'Autorité des marchés financiers. Cette information est portée à la connaissance du public dans les conditions fixées par le règlement général de l'Autorité des marchés financiers.
Le règlement général précise également les modalités de calcul des seuils de participation et les conditions dans lesquelles un accord ou instrument financier, mentionné au c du I, est considéré comme ayant un effet économique similaire à la possession d'actions.
III.-Les statuts de la société peuvent prévoir une obligation supplémentaire d'information portant sur la détention de fractions du capital ou des droits de vote inférieures à celle du vingtième mentionnée au I.L'obligation porte sur la détention de chacune de ces fractions, qui ne peuvent être inférieures à 0, 5 % du capital ou des droits de vote.
IV.-Les obligations d'information prévues aux I, II et III ne s'appliquent pas aux actions :
1° Acquises aux seules fins de la compensation, du règlement ou de la livraison d'instruments financiers, dans le cadre habituel du cycle de règlement à court terme défini par le règlement général de l'Autorité des marchés financiers ;
2° Détenues par les teneurs de comptes conservateurs dans le cadre de leur activité de tenue de compte et de conservation ;
3° Détenues par un prestataire de services d'investissement dans son portefeuille de négociation au sens de la directive 2006 / 49 / CE du Parlement et du Conseil du 14 juin 2006 sur l'adéquation des fonds propres des entreprises d'investissement et des établissements de crédit à condition que ces actions ne représentent pas une quotité du capital ou des droits de vote de l'émetteur de ces titres supérieure à un seuil fixé par le règlement général de l'Autorité des marchés financiers et que les droits de vote attachés à ces titres ne soient pas exercés ni autrement utilisés pour intervenir dans la gestion de l'émetteur ;
4° Remises aux membres du Système européen de banques centrales ou par ceux-ci dans l'exercice de leurs fonctions d'autorités monétaires, dans les conditions fixées par le règlement général de l'Autorité des marchés financiers.
V.-Les obligations d'information prévues aux I, II et III ne s'appliquent pas :
1° Au teneur de marché lors du franchissement du seuil du vingtième du capital ou des droits de vote dans le cadre de la tenue de marché, à condition qu'il n'intervienne pas dans la gestion de l'émetteur dans les conditions fixées par le règlement général de l'Autorité des marchés financiers ;
2° Lorsque la personne mentionnée au I est contrôlée, au sens de l'article L. 233-3, par une entité soumise à l'obligation prévue aux I à III pour les actions détenues par cette personne ou que cette entité est elle-même contrôlée, au sens de l'article L. 233-3, par une entité soumise à l'obligation prévue aux I à III pour ces mêmes actions.
VI.-En cas de non-respect de l'obligation d'information mentionnée au III, les statuts de la société peuvent prévoir que les dispositions des deux premiers alinéas de l'article L. 233-14 ne s'appliquent qu'à la demande, consignée dans le procès-verbal de l'assemblée générale, d'un ou plusieurs actionnaires détenant une fraction du capital ou des droits de vote de la société émettrice au moins égale à la plus petite fraction du capital dont la détention doit être déclarée. Cette fraction ne peut toutefois être supérieure à 5 %.
VII. # Lorsque les actions de la société sont admises aux négociations sur un marché réglementé, la personne tenue à l'information prévue au I est tenue de déclarer, à l'occasion des franchissements de seuil du dixième, des trois vingtièmes, du cinquième ou du quart du capital ou des droits de vote, les
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objectifs qu'elle a l'intention de poursuivre au cours des six mois à venir.
Cette déclaration précise les modes de financement de l'acquisition, si l'acquéreur agit seul ou de concert, s'il envisage d'arrêter ses achats ou de les poursuivre, d'acquérir ou non le contrôle de la société, la stratégie qu'il envisage vis-à-vis de l'émetteur et les opérations pour la mettre en œuvre ainsi que tout accord de cession temporaire ayant pour objet les actions et les droits de vote. Elle précise si l'acquéreur envisage de demander sa nomination ou celle d'une ou plusieurs personnes comme administrateur, membre du directoire ou du conseil de surveillance. Le règlement général de l'Autorité des marchés financiers précise le contenu de ces éléments en tenant compte, le cas échéant, du niveau de la participation et des caractéristiques de la personne qui procède à la déclaration.
Cette déclaration est adressée à la société dont les actions ont été acquises et doit parvenir à l'Autorité des marchés financiers dans des délais fixés par décret en Conseil d'Etat. Cette information est portée à la connaissance du public dans les conditions fixées par le règlement général de l'Autorité des marchés financiers.
En cas de changement d'intention dans le délai de six mois à compter du dépôt de cette déclaration, une nouvelle déclaration motivée doit être adressée à la société et à l'Autorité des marchés financiers sans délai et portée à la connaissance du public dans les mêmes conditions. Cette nouvelle déclaration fait courir à nouveau le délai de six mois mentionné au premier alinéa.
Article L233-7-1
Lorsque les actions de la société ont cessé d'être admises aux négociations sur un marché réglementé pour être admises aux négociations sur un système multilatéral de négociation qui se soumet aux dispositions législatives ou réglementaires visant à protéger les investisseurs contre les opérations d'initiés, les manipulations de cours et la diffusion de fausses informations, la personne tenue à l'information mentionnée au I de l'article L. 233-7 informe également l'Autorité des marchés financiers dans un délai et selon des modalités fixées par son règlement général, à compter du franchissement du seuil de participation, pendant une durée de trois ans à compter de la date à laquelle ces actions ont cessé d'être admises aux négociations sur un marché réglementé. Cette information est portée à la connaissance du public dans les conditions fixées par le règlement général de l'Autorité des marchés financiers.
L'alinéa précédent est applicable aux sociétés dont la capitalisation boursière est inférieure à un milliard d'euros.
Le VII de l'article L. 233-7 est également applicable à la personne mentionnée au premier alinéa du présent article.
Article L233-8
I.-Au plus tard dans les quinze jours qui suivent l'assemblée générale ordinaire, toute société par actions informe ses actionnaires du nombre total de droits de vote existant à cette date. Dans la mesure où, entre deux assemblées générales ordinaires, le nombre de droits de vote varie d'un pourcentage fixé par arrêté du ministre chargé de l'économie, par rapport au nombre déclaré antérieurement, la société, lorsqu'elle en a connaissance, informe ses actionnaires.
II.-Les sociétés mentionnées au I de l'article L. 233-7 dont des actions sont admises aux négociations sur un marché réglementé d'un Etat partie à l'accord sur l'Espace économique européen
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publient chaque mois le nombre total de droits de vote et le nombre d'actions composant le capital de la société s'ils ont varié par rapport à ceux publiés antérieurement, dans des conditions et selon des modalités fixées par le règlement général de l'Autorité des marchés financiers. Ces sociétés sont réputées remplir l'obligation prévue au I.
Article L233-9
I.-Sont assimilés aux actions ou aux droits de vote possédés par la personne tenue à l'information prévue au I de l'article L. 233-7 :
1° Les actions ou les droits de vote possédés par d'autres personnes pour le compte de cette personne ;
2° Les actions ou les droits de vote possédés par les sociétés que contrôle cette personne au sens de l'article L. 233-3 ;
3° Les actions ou les droits de vote possédés par un tiers avec qui cette personne agit de concert ;
4° Les actions déjà émises que cette personne, ou l'une des personnes mentionnées aux 1° à 3° est en droit d'acquérir à sa seule initiative, immédiatement ou à terme, en vertu d'un accord ou d'un instrument financier mentionné à l' article L. 211-1 du code monétaire et financier . Il en va de même pour les droits de vote que cette personne peut acquérir dans les mêmes conditions. Le règlement général de l'Autorité des marchés financiers précise les conditions d'application du présent alinéa ;
5° Les actions dont cette personne a l'usufruit ;
6° Les actions ou les droits de vote possédés par un tiers avec lequel cette personne a conclu un accord de cession temporaire portant sur ces actions ou droits de vote ;
7° Les actions déposées auprès de cette personne, à condition que celle-ci puisse exercer les droits de vote qui leur sont attachés comme elle l'entend en l'absence d'instructions spécifiques des actionnaires ;
8° Les droits de vote que cette personne peut exercer librement en vertu d'une procuration en l'absence d'instructions spécifiques des actionnaires concernés.
II.-Ne sont pas assimilées aux actions ou aux droits de vote possédés par la personne tenue à l'information prévue au I de l'article L. 233-7 :
1° Les actions détenues par les organismes de placement collectif en valeurs mobilières ou les SICAF gérés par une société de gestion de portefeuille contrôlée par cette personne au sens de l'article L. 233-3, dans les conditions fixées par le règlement général de l'Autorité des marchés financiers sauf exceptions prévues par ce même règlement ;
2° Les actions détenues dans un portefeuille géré par un prestataire de services d'investissement contrôlé par cette personne au sens de l'article L. 233-3, dans le cadre du service de gestion de portefeuille pour compte de tiers dans les conditions fixées par le règlement général de l'Autorité des marchés financiers, sauf exceptions prévues par ce même règlement ;
3° Les instruments financiers mentionnés au 4° du I détenus par un prestataire de services d'investissement dans son portefeuille de négociation au sens de la directive 2006 / 49 / CE du Parlement et du Conseil du 14 juin 2006 sur l'adéquation des fonds propres des entreprises
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d'investissement et des établissements de crédit à condition que ces instruments ne donnent pas accès à une quotité du capital ou des droits de vote de l'émetteur de ces titres supérieure à un seuil fixé par le règlement général de l'Autorité des marchés financiers.
Article L233-10
I. - Sont considérées comme agissant de concert les personnes qui ont conclu un accord en vue d'acquérir ou de céder des droits de vote ou en vue d'exercer les droits de vote, pour mettre en oeuvre une politique vis-à-vis de la société.
II. - Un tel accord est présumé exister :
1° Entre une société, le président de son conseil d'administration et ses directeurs généraux ou les membres de son directoire ou ses gérants ;
2° Entre une société et les sociétés qu'elle contrôle au sens de l'article L. 233-3 ;
3° Entre des sociétés contrôlées par la même ou les mêmes personnes ;
4° Entre les associés d'une société par actions simplifiée à l'égard des sociétés que celle-ci contrôle ;
5° Entre le fiduciaire et le bénéficiaire d'un contrat de fiducie, si ce bénéficiaire est le constituant.
III. - Les personnes agissant de concert sont tenues solidairement aux obligations qui leur sont faites par les lois et règlements.
Article L233-10-1
En cas d'offre publique d'acquisition, sont considérées comme agissant de concert les personnes qui ont conclu un accord avec l'auteur d'une offre publique visant à obtenir le contrôle de la société qui fait l'objet de l'offre. Sont également considérées comme agissant de concert les personnes qui ont conclu un accord avec la société qui fait l'objet de l'offre afin de faire échouer cette offre.
Article L233-11
Toute clause d'une convention prévoyant des conditions préférentielles de cession ou d'acquisition d'actions admises aux négociations sur un marché réglementé et portant sur au moins 0,5 % du capital ou des droits de vote de la société qui a émis ces actions doit être transmise dans un délai de cinq jours de bourse à compter de la signature de la convention ou de l'avenant introduisant la clause concernée, à la société et à l'Autorité des marchés financiers. A défaut de transmission, les effets de cette clause sont suspendus, et les parties déliées de leurs engagements, en période d'offre
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publique.
La société et l'Autorité des marchés financiers doivent également être informées de la date à laquelle la clause prend fin.
Les clauses des conventions conclues avant la date de publication de la loi n° 2001-420 du 15 mai 2001 relative aux nouvelles régulations économiques qui n'ont pas été transmises à l'Autorité des marchés financiers à cette date doivent lui être transmises, dans les mêmes conditions et avec les mêmes effets que ceux mentionnés au premier alinéa, dans un délai de six mois.
Les informations mentionnées aux alinéas précédents sont portées à la connaissance du public dans les conditions fixées par le règlement général de l'Autorité des marchés financiers.
Article L233-12
Lorsqu'une société est contrôlée directement ou indirectement par une société par actions, elle notifie à cette dernière et à chacune des sociétés participant à ce contrôle le montant des participations qu'elle détient directement ou indirectement dans leur capital respectif ainsi que les variations de ce montant.
Les notifications sont faites dans le délai d'un mois à compter soit du jour où la prise de contrôle a été connue de la société pour les titres qu'elle détenait avant cette date, soit du jour de l'opération pour les acquisitions ou aliénations ultérieures.
Article L233-13
En fonction des informations reçues en application des articles L. 233-7 et L. 233-12, le rapport présenté aux actionnaires sur les opérations de l'exercice mentionne l'identité des personnes physiques ou morales détenant directement ou indirectement plus du vingtième, du dixième, des trois vingtièmes, du cinquième, du quart, du tiers, de la moitié, des deux tiers, des dix-huit vingtièmes ou des dix-neuf vingtièmes du capital social ou des droits de vote aux assemblées générales. Il fait également apparaître les modifications intervenues au cours de l'exercice. Il indique le nom des sociétés contrôlées et la part du capital de la société qu'elles détiennent. Il en est fait mention, le cas échéant, dans le rapport des commissaires aux comptes.
Article L233-14
L'actionnaire qui n'aurait pas procédé régulièrement à la déclaration prévue aux I et II de l'article L. 233-7 ou au VII de cet article est privé des droits de vote attachés aux actions excédant la fraction qui n'a pas été régulièrement déclarée pour toute assemblée d'actionnaires qui se tiendrait jusqu'à l'expiration d'un délai de deux ans suivant la date de régularisation de la notification.
Dans les mêmes conditions, les droits de vote attachés à ces actions et qui n'ont pas été régulièrement déclarés ne peuvent être exercés ou délégués par l'actionnaire défaillant.
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Le tribunal de commerce dans le ressort duquel la société a son siège social peut, le ministère public entendu, sur demande du président de la société, d'un actionnaire ou de l'Autorité des marchés financiers, prononcer la suspension totale ou partielle, pour une durée ne pouvant excéder cinq ans, de ses droits de vote à l'encontre de tout actionnaire qui n'aurait pas procédé aux déclarations prévues à l'article L. 233-7 ou qui n'aurait pas respecté le contenu de la déclaration prévue au VII de cet article pendant la période de six mois suivant sa publication dans les conditions fixées par le règlement général de l'Autorité des marchés financiers.
Article L233-15
Le conseil d'administration, le directoire ou le gérant de toute société ayant des filiales ou des participations, annexe au bilan de la société un tableau, en vue de faire apparaître la situation des dites filiales et participations.
Section 3 : Des comptes consolidés
Article L233-16
I. - Les sociétés commerciales établissent et publient chaque année à la diligence du conseil d'administration, du directoire, du ou des gérants, selon le cas, des comptes consolidés ainsi qu'un rapport sur la gestion du groupe, dès lors qu'elles contrôlent de manière exclusive ou conjointe une ou plusieurs autres entreprises ou qu'elles exercent une influence notable sur celles-ci, dans les conditions ci-après définies.
II. - Le contrôle exclusif par une société résulte :
1° Soit de la détention directe ou indirecte de la majorité des droits de vote dans une autre entreprise ;
2° Soit de la désignation, pendant deux exercices successifs, de la majorité des membres des organes d'administration, de direction ou de surveillance d'une autre entreprise. La société consolidante est présumée avoir effectué cette désignation lorsqu'elle a disposé au cours de cette période, directement ou indirectement, d'une fraction supérieure à 40 % des droits de vote, et qu'aucun autre associé ou actionnaire ne détenait, directement ou indirectement, une fraction supérieure à la sienne ;
3° Soit du droit d'exercer une influence dominante sur une entreprise en vertu d'un contrat ou de clauses statutaires, lorsque le droit applicable le permet. (1)
III. - Le contrôle conjoint est le partage du contrôle d'une entreprise exploitée en commun par un nombre limité d'associés ou d'actionnaires, de sorte que les décisions résultent de leur accord.
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IV. - L'influence notable sur la gestion et la politique financière d'une entreprise est présumée lorsqu'une société dispose, directement ou indirectement, d'une fraction au moins égale au cinquième des droits de vote de cette entreprise.
Article L233-17
Par dérogation aux dispositions de l'article L. 233-16, les sociétés mentionnées audit article, à l'exception de celles qui émettent des valeurs mobilières admises aux négociations sur un marché réglementé ou des titres de créances négociables, sont exemptées, dans des conditions fixées par décret en Conseil d'Etat, de l'obligation d'établir et de publier des comptes consolidés et un rapport sur la gestion du groupe :
1° Lorsqu'elles sont elles-mêmes sous le contrôle d'une entreprise qui les inclut dans ses comptes consolidés et publiés. En ce cas, toutefois, l'exemption est subordonnée à la condition qu'un ou plusieurs actionnaires ou associés de l'entreprise contrôlée représentant au moins le dixième de son capital social ne s'y opposent pas ;
2° Ou lorsque l'ensemble constitué par une société et les entreprises qu'elle contrôle ne dépasse pas pendant deux exercices successifs sur la base des derniers comptes annuels arrêtés une taille déterminée par référence à deux des trois critères mentionnés à l'article L. 123-16.
Article L233-18
Les comptes des entreprises placées sous le contrôle exclusif de la société consolidante sont consolidés par intégration globale.
Les comptes des entreprises contrôlées conjointement avec d'autres actionnaires ou associés par la société consolidante sont consolidés par intégration proportionnelle.
Les comptes des entreprises sur lesquelles la société consolidante exerce une influence notable sont consolidés par mise en équivalence.
Article L233-19
I. - Sous réserve d'en justifier dans l'annexe établie par la société consolidante, une filiale ou une participation est laissée en dehors de la consolidation lorsque des restrictions sévères et durables remettent en cause substantiellement le contrôle ou l'influence exercée par la société consolidante sur la filiale ou la participation ou les possibilités de transfert de fonds par la filiale ou la participation.
II. - Sous la même réserve, une filiale ou une participation peut être laissée en dehors de la consolidation lorsque :
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1° Les actions ou parts de cette filiale ou participation ne sont détenues qu'en vue de leur cession ultérieure ;
2° La filiale ou la participation ne représente, seule ou avec d'autres, qu'un intérêt négligeable par rapport à l'objectif défini à l'article L. 233-21 ;
3° Les informations nécessaires à l'établissement des comptes consolidés ne peuvent être obtenues sans frais excessifs ou dans des délais compatibles avec ceux qui sont fixés en application des dispositions de l'article L. 233-27.
Article L233-20
Les comptes consolidés comprennent le bilan et le compte de résultat consolidés ainsi qu'une annexe : ils forment un tout indissociable.
A cet effet, les entreprises comprises dans la consolidation sont tenues de faire parvenir à la société consolidante les informations nécessaires à l'établissement des comptes consolidés.
Les comptes consolidés sont établis et publiés selon des modalités fixées par un règlement de l'Autorité des normes comptables. Ce règlement détermine notamment le classement des éléments du bilan et du compte de résultat ainsi que les mentions à inclure dans l'annexe.
Article L233-21
Les comptes consolidés doivent être réguliers et sincères et donner une image fidèle du patrimoine, de la situation financière ainsi que du résultat de l'ensemble constitué par les entreprises comprises dans la consolidation.
Il est fait application, le cas échéant, des dispositions prévues aux premier et deuxième alinéas de l'article L. 123-14.
Article L233-22
Sous réserve des dispositions de l'article L. 233-23, les comptes consolidés sont établis selon les principes comptables et les règles d'évaluation du présent code compte tenu des aménagements indispensables résultant des caractéristiques propres aux comptes consolidés par rapport aux comptes annuels.
Les éléments d'actif et de passif, les éléments de charge et de produit compris dans les comptes consolidés sont évalués selon des méthodes homogènes, sauf si les retraitements nécessaires sont de coût disproportionné et d'incidence négligeable sur le patrimoine, la situation financière et le
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résultat consolidés.
Article L233-23
Sous réserve d'en justifier dans l'annexe, la société consolidante peut faire usage, dans les conditions prévues à l'article L. 123-17, de règles d'évaluation fixées par règlement de l'Autorité des normes comptables, et destinées :
1° A tenir compte des variations de prix ou des valeurs de remplacement ;
2° A évaluer les biens fongibles en considérant que le premier bien sorti est le dernier bien rentré ;
3° A permettre la prise en compte de règles non conformes à celles fixées par les articles L. 123-18 à L. 123-21.
Article L233-24
Lorsqu'elles utilisent les normes comptables internationales adoptées par règlement de la Commission européenne, les sociétés commerciales qui établissent et publient des comptes consolidés au sens de l'article L. 233-16 sont dispensées de se conformer aux règles comptables prévues par les articles L. 233-18 à L. 233-23 pour l'établissement et la publication de leurs comptes consolidés.
Article L233-25
Sous réserve d'en justifier dans l'annexe, les comptes consolidés peuvent être établis à une date différente de celle des comptes annuels de la société consolidante.
Si la date de clôture de l'exercice d'une entreprise comprise dans la consolidation est antérieure de plus de trois mois à la date de clôture de l'exercice de consolidation, ceux-ci sont établis sur la base de comptes intérimaires contrôlés par un commissaire aux comptes ou, s'il n'en est point, par un professionnel chargé du contrôle des comptes.
Article L233-26
Le rapport sur la gestion du groupe expose la situation de l'ensemble constitué par les entreprises comprises dans la consolidation, son évolution prévisible, les événements importants survenus entre la date de clôture de l'exercice de consolidation et la date à laquelle les comptes consolidés sont établis ainsi que ses activités en matière de recherche et de développement. Ce rapport peut être inclus dans le rapport de gestion mentionné à l'article L. 232-1.
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Article L233-27
Un décret en Conseil d'Etat fixe les conditions dans lesquelles les comptes consolidés et le rapport sur la gestion du groupe sont mis à la disposition des commissaires aux comptes.
Article L233-28
Les personnes morales ayant la qualité de commerçant qui, sans y être tenues en raison de leur forme juridique ou de la taille de l'ensemble du groupe, publient des comptes consolidés, se conforment aux dispositions des articles L. 233-16 et L. 233-18 à L. 233-27. En ce cas, lorsque leurs comptes annuels sont certifiés dans les conditions prévues à l'article L. 823-9, leurs comptes consolidés le sont dans les conditions du deuxième alinéa de cet article.
Section 4 : Des participations réciproques
Article L233-29
Une société par actions ne peut posséder d'actions d'une autre société, si celle-ci détient une fraction de son capital supérieure à 10 %.
A défaut d'accord entre les sociétés intéressées pour régulariser la situation, celle qui détient la fraction la plus faible du capital de l'autre doit aliéner son investissement. Si les investissements réciproques sont de la même importance, chacune des sociétés doit réduire le sien, de telle sorte qu'il n'excède pas 10 % du capital de l'autre.
Lorsqu'une société est tenue d'aliéner les actions d'une autre société, l'aliénation est effectuée dans le délai fixé par décret en Conseil d'Etat. La société ne peut exercer les droits de vote attachés à ces actions.
Article L233-30
Si une société autre qu'une société par actions compte parmi ses associés une société par actions détenant une fraction de son capital supérieure à 10 %, elle ne peut détenir d'actions émises par cette dernière.
Si elle vient à en posséder, elle doit les aliéner dans le délai fixé par décret en Conseil d'Etat et elle ne peut, de leur chef, exercer le droit de vote.
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Si une société autre qu'une société par actions compte parmi ses associés une société par actions détenant une fraction de son capital égale ou inférieure à 10 %, elle ne peut détenir qu'une fraction égale ou inférieure à 10 % des actions émises par cette dernière.
Si elle vient à en posséder une fraction plus importante, elle doit aliéner l'excédent dans le délai fixé par décret en Conseil d'Etat et elle ne peut, du chef de cet excédent, exercer le droit de vote.
Article L233-31
Lorsque des actions ou des droits de vote d'une société sont possédés par une ou plusieurs sociétés dont elle détient directement ou indirectement le contrôle, les droits de vote attachés à ces actions ou ces droits de vote ne peuvent être exercés à l'assemblée générale de la société. Il n'en est pas tenu compte pour le calcul du quorum.
Section 5 : Des offres publiques d'acquisition
Article L233-32
I. - Pendant la période d'offre publique visant une société dont des actions sont admises aux négociations sur un marché réglementé, le conseil d'administration, le conseil de surveillance, à l'exception de leur pouvoir de nomination, le directoire, le directeur général ou l'un des directeurs généraux délégués de la société visée doivent obtenir l'approbation préalable de l'assemblée générale pour prendre toute mesure dont la mise en oeuvre est susceptible de faire échouer l'offre, hormis la recherche d'autres offres.
II. - Sans préjudice des autres mesures permises par la loi, l'assemblée générale extraordinaire de la société visée, statuant dans les conditions de quorum et de majorité prévues à l'article L. 225-98, peut décider l'émission de bons permettant de souscrire, à des conditions préférentielles, à des actions de ladite société, et leur attribution gratuite à tous les actionnaires de cette société ayant cette qualité avant l'expiration de la période d'offre publique.
L'assemblée générale peut déléguer cette compétence au conseil d'administration ou au directoire. Elle fixe le montant maximum de l'augmentation de capital pouvant résulter de l'exercice de ces bons ainsi que le nombre maximum de bons pouvant être émis.
La délégation peut également prévoir la fixation de conditions relatives à l'obligation ou à l'interdiction, pour le conseil d'administration ou le directoire, de procéder à l'émission et à l'attribution gratuite de ces bons, d'y surseoir ou d'y renoncer. La société visée porte à la connaissance du public, avant la clôture de l'offre, son intention d'émettre ces bons.
Les conditions d'exercice de ces bons, qui doivent être relatives aux termes de l'offre ou de toute
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offre concurrente éventuelle, ainsi que les autres caractéristiques de ces bons, dont le prix d'exercice ou les modalités de détermination de ce prix, sont fixées par l'assemblée générale ou, sur délégation de celle-ci, par le conseil d'administration ou le directoire. Ces bons deviennent caducs de plein droit dès que l'offre et toute offre concurrente éventuelle échouent, deviennent caduques ou sont retirées.
III. - Toute délégation d'une mesure dont la mise en oeuvre est susceptible de faire échouer l'offre, hormis la recherche d'autres offres, accordée par l'assemblée générale avant la période d'offres, est suspendue en période d'offre publique.
Toute décision du conseil d'administration, du conseil de surveillance, du directoire, du directeur général ou de l'un des directeurs généraux délégués, prise avant la période d'offre, qui n'est pas totalement ou partiellement mise en oeuvre, qui ne s'inscrit pas dans le cours normal des activités de la société et dont la mise en oeuvre est susceptible de faire échouer l'offre doit faire l'objet d'une approbation ou d'une confirmation par l'assemblée générale.
Article L233-33
Les dispositions de l'article L. 233-32 ne sont pas applicables lorsque la société fait l'objet d'une ou plusieurs offres publiques engagées par des entités, agissant seules ou de concert au sens de l'article L. 233-10, dont l'une au moins n'applique pas ces dispositions ou des mesures équivalentes ou qui sont respectivement contrôlées, au sens du II ou du III de l'article L. 233-16, par des entités dont l'une au moins n'applique pas ces dispositions ou des mesures équivalentes. Toutefois, les dispositions de l'article L. 233-32 s'appliquent si les seules entités qui n'appliquent pas les dispositions de cet article ou des mesures équivalentes ou qui sont contrôlées, au sens du II ou du III de l'article L. 233-16, par des entités qui n'appliquent pas ces dispositions ou des mesures équivalentes, agissent de concert, au sens de l'article L. 233-10, avec la société faisant l'objet de l'offre. Toute contestation portant sur l'équivalence des mesures fait l'objet d'une décision de l'Autorité des marchés financiers.
Dans le cas où le premier alinéa s'applique, toute mesure prise par le conseil d'administration, le conseil de surveillance, le directoire, le directeur général ou l'un des directeurs généraux délégués de la société visée doit avoir été expressément autorisée pour l'hypothèse d'une offre publique par l'assemblée générale dans les dix-huit mois précédant le jour du dépôt de l'offre. L'autorisation peut notamment porter sur l'émission par le conseil d'administration ou le directoire des bons visés au II de l'article L. 233-32 ; dans ce cas, l'assemblée générale extraordinaire des actionnaires statue dans les conditions de quorum et de majorité prévues à l'article L. 225-98.
Article L233-34
Sauf lorsqu'elles résultent d'une obligation législative, les clauses des statuts d'une société dont des actions sont admises à la négociation sur un marché réglementé prévoyant des restrictions statutaires au transfert d'actions de la société sont inopposables à l'auteur d'une offre publique pour les titres qui lui seraient apportés dans le cadre de son offre.
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Article L233-35
Les statuts d'une société dont des actions sont admises à la négociation sur un marché réglementé peuvent prévoir que les effets de toute clause d'une convention conclue après le 21 avril 2004 prévoyant des restrictions au transfert d'actions de la société sont inopposables à l'auteur de l'offre, en période d'offre publique.
Article L233-36
Les statuts d'une société dont des actions sont admises à la négociation sur un marché réglementé peuvent prévoir que les effets de toute clause d'une convention conclue après le 21 avril 2004 prévoyant des restrictions à l'exercice des droits de vote attachés à des actions de la société sont suspendus en période d'offre publique visant la société lors des assemblées réunies aux fins d'adopter ou d'autoriser toute mesure susceptible de faire échouer l'offre.
Article L233-37
Les statuts d'une société dont des actions sont admises à la négociation sur un marché réglementé peuvent prévoir que les effets des restrictions statutaires à l'exercice des droits de vote attachés à des actions de la société sont suspendus en période d'offre publique visant la société lors des assemblées réunies aux fins d'adopter ou d'autoriser toute mesure susceptible de faire échouer l'offre.
Article L233-38
Les statuts d'une société dont des actions sont admises à la négociation sur un marché réglementé peuvent prévoir que les effets des restrictions statutaires à l'exercice des droits de vote attachés à des actions de la société ainsi que les effets de toute clause d'une convention conclue après le 21 avril 2004 prévoyant des restrictions à l'exercice des droits de vote attachés à des actions de la société sont suspendus lors de la première assemblée générale suivant la clôture de l'offre lorsque l'auteur de l'offre, agissant seul ou de concert, vient à détenir, à l'issue de celle-ci, une fraction du capital ou des droits de vote supérieure à une quotité fixée par le règlement général de l'Autorité des marchés financiers, sans pouvoir atteindre le seuil prévu par le dernier alinéa de l'article L. 225-125.
Article L233-39
Les statuts d'une société dont des actions sont admises à la négociation sur un marché réglementé peuvent prévoir que les droits extraordinaires de nomination ou révocation des administrateurs,
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membres du conseil de surveillance, membres du directoire, directeurs généraux, directeurs généraux délégués, détenus par certains actionnaires sont suspendus lors de la première assemblée générale suivant la clôture de l'offre lorsque l'auteur de l'offre, agissant seul ou de concert, détient à l'issue de celle-ci une fraction du capital ou des droits de vote supérieure à une quotité fixée par le règlement général de l'Autorité des marchés financiers.
Article L233-40
Lorsqu'une société décide d'appliquer ou de mettre fin à l'application des dispositions prévues aux articles L. 233-35 à L. 233-39, elle en informe l'Autorité des marchés financiers, qui rend cette décision publique. Les conditions et modalités d'application du présent article sont fixées par le règlement général de l'Autorité des marchés financiers.
Chapitre IV : De la procédure d'alerte
Article L234-1
Lorsque le commissaire aux comptes d'une société anonyme relève, à l'occasion de l'exercice de sa mission, des faits de nature à compromettre la continuité de l'exploitation, il en informe le président du conseil d'administration ou du directoire dans des conditions fixées par décret en Conseil d'Etat.
A défaut de réponse sous quinze jours ou si celle-ci ne permet pas d'être assuré de la continuité de l'exploitation, le commissaire aux comptes invite, par un écrit dont copie est transmise au président du tribunal de commerce, le président du conseil d'administration ou le directoire à faire délibérer le conseil d'administration ou le conseil de surveillance sur les faits relevés. Le commissaire aux comptes est convoqué à cette séance. La délibération du conseil d'administration ou du conseil de surveillance est communiquée au président du tribunal de commerce et au comité d'entreprise ou, à défaut, aux délégués du personnel.
En cas d'inobservation de ces dispositions ou si le commissaire aux comptes constate qu'en dépit des décisions prises la continuité de l'exploitation demeure compromise, une assemblée générale est convoquée dans des conditions et délais fixés par décret en Conseil d'Etat. Le commissaire aux comptes établit un rapport spécial qui est présenté à cette assemblée. Ce rapport est communiqué au comité d'entreprise ou, à défaut, aux délégués du personnel.
Si, à l'issue de la réunion de l'assemblée générale, le commissaire aux comptes constate que les décisions prises ne permettent pas d'assurer la continuité de l'exploitation, il informe de ses démarches le président du tribunal de commerce et lui en communique les résultats.
Article L234-2
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Dans les autres sociétés que les sociétés anonymes, le commissaire aux comptes demande au dirigeant, dans des conditions fixées par décret en Conseil d'Etat, des explications sur les faits visés au premier alinéa de l'article L. 234-1. Le dirigeant est tenu de lui répondre sous quinze jours. La réponse est communiquée au comité d'entreprise ou, à défaut, aux délégués du personnel et, s'il en existe un, au conseil de surveillance. Le commissaire aux comptes en informe le président du tribunal de commerce.
En cas d'inobservation de ces dispositions ou s'il constate qu'en dépit des décisions prises la continuité de l'exploitation demeure compromise, le commissaire aux comptes établit un rapport spécial et invite, par un écrit dont la copie est envoyée au président du tribunal de commerce, le dirigeant à faire délibérer sur les faits relevés une assemblée générale convoquée dans des conditions et délais fixés par décret en Conseil d'Etat.
Si, à l'issue de la réunion de l'assemblée générale, le commissaire aux comptes constate que les décisions prises ne permettent pas d'assurer la continuité de l'exploitation, il informe de ses démarches le président du tribunal de commerce et lui en communique les résultats.
Article L234-3
Le comité d'entreprise ou, à défaut, les délégués du personnel exercent dans les sociétés commerciales les attributions prévues aux articles L. 422-4 et L. 432-5 du code du travail.
Le président du conseil d'administration, le directoire ou les gérants, selon le cas, communiquent aux commissaires aux comptes les demandes d'explication formées par le comité d'entreprise ou les délégués du personnel, les rapports adressés au conseil d'administration ou au conseil de surveillance, selon le cas, ainsi que les réponses faites par ces organes, en application des articles L. 422-4 et L. 432-5 du code du travail.
Article L234-4
Les dispositions du présent chapitre ne sont pas applicables lorsqu'une procédure de conciliation ou de sauvegarde a été engagée par les dirigeants conformément aux dispositions des titres Ier et II du livre VI.
Chapitre V : Des nullités
Article L235-1
La nullité d'une société ou d'un acte modifiant les statuts ne peut résulter que d'une disposition expresse du présent livre ou des lois qui régissent la nullité des contrats. En ce qui concerne les
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sociétés à responsabilité limitée et les sociétés par actions, la nullité de la société ne peut résulter ni d'un vice de consentement ni de l'incapacité, à moins que celle-ci n'atteigne tous les associés fondateurs. La nullité de la société ne peut non plus résulter des clauses prohibées par l'article 1844-1 du code civil.
La nullité d'actes ou délibérations autres que ceux prévus à l'alinéa précédent ne peut résulter que de la violation d'une disposition impérative du présent livre ou des lois qui régissent les contrats.
Article L235-2
Dans les sociétés en nom collectif et en commandite simple, l'accomplissement des formalités de publicité est requis à peine de nullité de la société, de l'acte ou de la délibération, selon les cas, sans que les associés et la société puissent se prévaloir, à l'égard des tiers, de cette cause de nullité. Toutefois, le tribunal a la faculté de ne pas prononcer la nullité encourue, si aucune fraude n'est constatée.
Article L235-2-1
Les délibérations prises en violation des dispositions régissant les droits de vote attachés aux actions peuvent être annulées.
Article L235-3
L'action en nullité est éteinte lorsque la cause de la nullité a cessé d'exister le jour où le tribunal statue sur le fond en première instance, sauf si cette nullité est fondée sur l'illicéité de l'objet social.
Article L235-4
Le tribunal de commerce, saisi d'une action en nullité, peut, même d'office, fixer un délai pour permettre de couvrir les nullités. Il ne peut prononcer la nullité moins de deux mois après la date de l'exploit introductif d'instance.
Si, pour couvrir une nullité, une assemblée doit être convoquée ou une consultation des associés effectuée, et s'il est justifié d'une convocation régulière de cette assemblée ou de l'envoi aux associés du texte des projets de décision accompagné des documents qui doivent leur être communiqués, le tribunal accorde par jugement le délai nécessaire pour que les associés puissent prendre une décision.
Article L235-5
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Si, à l'expiration du délai prévu à l'article L. 235-4, aucune décision n'a été prise, le tribunal statue à la demande de la partie la plus diligente.
Article L235-6
En cas de nullité d'une société ou d'actes et délibérations postérieurs à sa constitution, fondée sur un vice du consentement ou l'incapacité d'un associé, et lorsque la régularisation peut intervenir, toute personne y ayant intérêt peut mettre en demeure celui qui est susceptible de l'opérer, soit de régulariser, soit d'agir en nullité dans un délai de six mois à peine de forclusion. Cette mise en demeure est dénoncée à la société.
La société ou un associé peut soumettre au tribunal saisi dans le délai prévu à l'alinéa précédent, toute mesure susceptible de supprimer l'intérêt du demandeur, notamment par le rachat de ses droits sociaux. En ce cas, le tribunal peut, soit prononcer la nullité, soit rendre obligatoires les mesures proposées, si celles-ci ont été préalablement adoptées par la société aux conditions prévues pour les modifications statutaires. Le vote de l'associé dont le rachat des droits est demandé est sans influence sur la décision de la société.
En cas de contestation, la valeur des droits sociaux à rembourser à l'associé est déterminée conformément aux dispositions de l'article 1843-4 du code civil. Toute clause contraire est réputée non écrite.
Article L235-7
Lorsque la nullité d'actes et délibérations postérieurs à la constitution de la société est fondée sur la violation des règles de publicité, toute personne ayant intérêt à la régularisation de l'acte peut mettre la société en demeure d'y procéder, dans le délai fixé par décret en Conseil d'Etat. A défaut de régularisation dans ce délai, tout intéressé peut demander la désignation, par décision de justice, d'un mandataire chargé d'accomplir la formalité.
Article L235-8
La nullité d'une opération de fusion ou de scission ne peut résulter que de la nullité de la délibération de l'une des assemblées qui ont décidé l'opération ou du défaut de dépôt de la déclaration de conformité mentionnée au troisième alinéa de l'article L. 236-6.
Lorsqu'il est possible de porter remède à l'irrégularité susceptible d'entraîner la nullité, le tribunal saisi de l'action en nullité d'une fusion ou d'une scission accorde aux sociétés intéressées un délai pour régulariser la situation.
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Article L235-9
Les actions en nullité de la société ou d'actes et délibérations postérieurs à sa constitution se prescrivent par trois ans à compter du jour où la nullité est encourue, sous réserve de la forclusion prévue à l'article L. 235-6.
Toutefois, l'action en nullité d'une fusion ou d'une scission de sociétés se prescrit par six mois à compter de la date de la dernière inscription au registre du commerce et des sociétés rendue nécessaire par l'opération.
L'action en nullité fondée sur l'article L. 225-149-3 se prescrit par trois mois à compter de la date de l'assemblée générale suivant la décision d'augmentation de capital.
Article L235-10
Lorsque la nullité de la société est prononcée, il est procédé à sa liquidation conformément aux dispositions des statuts et du chapitre VII du présent titre.
Article L235-11
Lorsqu'une décision judiciaire prononçant la nullité d'une fusion ou d'une scission est devenue définitive, cette décision fait l'objet d'une publicité dont les modalités sont fixées par décret en Conseil d'Etat.
Elle est sans effet sur les obligations nées à la charge ou au profit des sociétés auxquelles le ou les patrimoines sont transmis entre la date à laquelle prend effet la fusion ou la scission et celle de la publication de la décision prononçant la nullité.
Dans le cas de la fusion, les sociétés ayant participé à l'opération sont solidairement responsables de l'exécution des obligations mentionnées à l'alinéa précédent à la charge de la société absorbante. Il en est de même, dans le cas de scission, de la société scindée pour les obligations des sociétés auxquelles le patrimoine est transmis. Chacune des sociétés auxquelles le patrimoine est transmis répond des obligations à sa charge nées entre la date de prise d'effet de la scission et celle de la publication de la décision prononçant la nullité.
Article L235-12
Ni la société ni les associés ne peuvent se prévaloir d'une nullité à l'égard des tiers de bonne foi. Cependant, la nullité résultant de l'incapacité ou d'un vice du consentement est opposable même aux tiers, par l'incapable et ses représentants légaux, ou par l'associé dont le consentement a été surpris
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par erreur, dol ou violence.
Article L235-13
L'action en responsabilité fondée sur l'annulation de la société ou des actes et délibérations postérieurs à sa constitution se prescrit par trois ans à compter du jour où la décision d'annulation est passée en force de chose jugée.
La disparition de la cause de nullité ne met pas obstacle à l'exercice de l'action en dommages intérêts tendant à la réparation du préjudice causé par le vice dont la société, l'acte ou la délibération était entaché. Cette action se prescrit par trois ans à compter du jour où la nullité a été couverte.
Article L235-14
Le fait pour le président des organes de direction et d'administration ou le président de séance de ces organes de ne pas constater les délibérations de ces organes par des procès-verbaux est sanctionné par la nullité des délibérations desdits organes.
L'action est ouverte à tout administrateur, membre du directoire ou membre du conseil de surveillance.
Cette action en nullité peut être exercée jusqu'à l'approbation du procès-verbal de la deuxième réunion du conseil d'administration, du directoire ou du conseil de surveillance qui suit celle dont les délibérations sont susceptibles d'être annulées.
Elle est soumise aux articles L. 235-4 et L. 235-5.
Chapitre VI : De la fusion et de la scission
Section 1 : Dispositions générales
Article L236-1
Une ou plusieurs sociétés peuvent, par voie de fusion, transmettre leur patrimoine à une société existante ou à une nouvelle société qu'elles constituent.
Une société peut aussi, par voie de scission, transmettre son patrimoine à plusieurs sociétés existantes ou à plusieurs sociétés nouvelles.
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Ces possibilités sont ouvertes aux sociétés en liquidation à condition que la répartition de leurs actifs entre les associés n'ait pas fait l'objet d'un début d'exécution.
Les associés des sociétés qui transmettent leur patrimoine dans le cadre des opérations mentionnées aux trois alinéas précédents reçoivent des parts ou des actions de la ou des sociétés bénéficiaires et, éventuellement, une soulte en espèces dont le montant ne peut dépasser 10 % de la valeur nominale des parts ou des actions attribuées.
Article L236-2
Les opérations visées à l'article L. 236-1 peuvent être réalisées entre des sociétés de forme différente.
Elles sont décidées, par chacune des sociétés intéressées, dans les conditions requises pour la modification de ses statuts.
Si l'opération comporte la création de sociétés nouvelles, chacune de celles-ci est constituée selon les règles propres à la forme de société adoptée.
Lorsque les opérations comportent la participation de sociétés anonymes et de sociétés à responsabilité limitée, les dispositions des articles L. 236-10, L. 236-11, L. 236-13, L. 236-14, L. 236-15, L. 236-18, L. 236-19, L. 236-20 et L. 236-21 sont applicables.
Article L236-3
I. - La fusion ou la scission entraîne la dissolution sans liquidation des sociétés qui disparaissent et la transmission universelle de leur patrimoine aux sociétés bénéficiaires, dans l'état où il se trouve à la date de réalisation définitive de l'opération. Elle entraîne simultanément l'acquisition, par les associés des sociétés qui disparaissent, de la qualité d'associés des sociétés bénéficiaires, dans les conditions déterminées par le contrat de fusion ou de scission.
II. - Toutefois, il n'est pas procédé à l'échange de parts ou d'actions de la société bénéficiaire contre des parts ou actions des sociétés qui disparaissent lorsque ces parts ou actions sont détenues :
1° Soit par la société bénéficiaire ou par une personne agissant en son propre nom mais pour le compte de cette société ;
2° Soit par la société qui disparaît ou par une personne agissant en son propre nom mais pour le compte de cette société.
Article L236-4
La fusion ou la scission prend effet :
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1° En cas de création d'une ou plusieurs sociétés nouvelles, à la date d'immatriculation, au registre du commerce et des sociétés, de la nouvelle société ou de la dernière d'entre elles ;
2° Dans les autres cas, à la date de la dernière assemblée générale ayant approuvé l'opération sauf si le contrat prévoit que l'opération prend effet à une autre date, laquelle ne doit être ni postérieure à la date de clôture de l'exercice en cours de la ou des sociétés bénéficiaires ni antérieure à la date de clôture du dernier exercice clos de la ou des sociétés qui transmettent leur patrimoine.
Article L236-5
Par dérogation aux dispositions du deuxième alinéa de l'article L. 236-2, si l'opération projetée a pour effet d'augmenter les engagements d'associés ou d'actionnaires de l'une ou de plusieurs sociétés en cause, elle ne peut être décidée qu'à l'unanimité desdits associés ou actionnaires.
Article L236-6
Toutes les sociétés qui participent à l'une des opérations mentionnées à l'article L. 236-1 établissent un projet de fusion ou de scission.
Ce projet est déposé au greffe du tribunal de commerce du siège desdites sociétés et fait l'objet d'une publicité dont les modalités sont fixées par décret en Conseil d'Etat.
A peine de nullité, les sociétés participant à l'une des opérations mentionnées au premier et au deuxième alinéa de l'article L. 236-1 sont tenues de déposer au greffe une déclaration dans laquelle elles relatent tous les actes effectués en vue d'y procéder et par laquelle elles affirment que l'opération a été réalisée en conformité des lois et règlements. Le greffier, sous sa responsabilité, s'assure de la conformité de la déclaration aux dispositions du présent article.
Article L236-7
Les dispositions du présent chapitre relatives aux obligataires sont applicables aux titulaires de titres participatifs.
Section 2 : Dispositions particulières aux sociétés anonymes
Article L236-8
Les opérations visées à l'article L. 236-1 et réalisées uniquement entre sociétés anonymes sont
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soumises aux dispositions de la présente section.
Article L236-9
La fusion est décidée par l'assemblée générale extraordinaire de chacune des sociétés qui participent à l'opération.
La fusion est soumise, le cas échéant, dans chacune des sociétés qui participent à l'opération, à la ratification des assemblées spéciales d'actionnaires mentionnées aux articles L. 225-99 et L. 228-15.
Le projet de fusion est soumis aux assemblées spéciales des porteurs de certificats d'investissement statuant selon les règles de l'assemblée générale des actionnaires, à moins que la société absorbante n'acquière ces titres sur simple demande de leur part, dans les conditions de publicité dont les modalités sont fixées par décret en Conseil d'Etat, et que cette acquisition ait été acceptée par leur assemblée spéciale. Tout porteur de certificats d'investissement qui n'a pas cédé ses titres dans le délai fixé par décret en Conseil d'Etat le demeure dans la société absorbante aux conditions fixées par le contrat de fusion, sous réserve des dispositions du dernier alinéa de l'article L. 228-30.
Le conseil d'administration ou le directoire de chacune des sociétés participant à l'opération établit un rapport écrit qui est mis à la disposition des actionnaires.
Article L236-10
I.-Sauf si les actionnaires des sociétés participant à l'opération de fusion en décident autrement dans les conditions prévues au II du présent article, un ou plusieurs commissaires à la fusion, désignés par décision de justice et soumis à l'égard des sociétés participantes aux incompatibilités prévues à l'article L. 822-11, établissent sous leur responsabilité un rapport écrit sur les modalités de la fusion.
Les commissaires à la fusion vérifient que les valeurs relatives attribuées aux actions des sociétés participant à l'opération sont pertinentes et que le rapport d'échange est équitable. Ils peuvent obtenir à cette fin, auprès de chaque société, communication de tous documents utiles et procéder à toutes vérifications nécessaires.
Le ou les rapports des commissaires à la fusion sont mis à la disposition des actionnaires. Ils indiquent :
1° La ou les méthodes suivies pour la détermination du rapport d'échange proposé ;
2° Le caractère adéquat de cette ou ces méthodes en l'espèce ainsi que les valeurs auxquelles chacune de ces méthodes conduit, un avis étant donné sur l'importance relative donnée à ces méthodes dans la détermination de la valeur retenue ;
3° Les difficultés particulières d'évaluation s'il en existe.
II.-La décision de ne pas faire désigner un commissaire à la fusion est prise, à l'unanimité, par les actionnaires de toutes les sociétés participant à l'opération.A cette fin, les actionnaires sont
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consultés avant que ne commence à courir le délai exigé pour la remise de ce rapport préalablement à l'assemblée générale appelée à se prononcer sur le projet de fusion.
III.-Lorsque l'opération de fusion comporte des apports en nature ou des avantages particuliers, le commissaire à la fusion ou, s'il n'en a pas été désigné en application du II, un commissaire aux apports désigné dans les conditions prévues à l'article L. 225-8 établit le rapport prévu à l'article L. 225-147.
Article L236-11
Lorsque, depuis le dépôt au greffe du tribunal de commerce du projet de fusion et jusqu'à la réalisation de l'opération, la société absorbante détient en permanence la totalité des actions représentant la totalité du capital des sociétés absorbées, il n'y a lieu ni à approbation de la fusion par l'assemblée générale extraordinaire des sociétés absorbées ni à l'établissement des rapports mentionnés au dernier alinéa de l'article L. 236-9, et à l'article L. 236-10.
Article L236-12
Lorsque la fusion est réalisée par voie de création d'une société nouvelle, celle-ci peut être constituée sans autres apports que ceux des sociétés qui fusionnent.
Dans tous les cas, le projet de statuts de la société nouvelle est approuvé par l'assemblée générale extraordinaire de chacune des sociétés qui disparaissent. Il n'y a pas lieu à approbation de l'opération par l'assemblée générale de la société nouvelle.
Article L236-13
Le projet de fusion est soumis aux assemblées d'obligataires des sociétés absorbées, à moins que le remboursement des titres sur simple demande de leur part ne soit offert auxdits obligataires. L'offre de remboursement est soumise à publicité, dont les modalités sont fixées par décret en Conseil d'Etat.
Lorsqu'il y a lieu à remboursement sur simple demande, la société absorbante devient débitrice des obligataires de la société absorbée.
Tout obligataire qui n'a pas demandé le remboursement dans le délai fixé par décret en Conseil d'Etat conserve sa qualité dans la société absorbante aux conditions fixées par le contrat de fusion.
Article L236-14
La société absorbante est débitrice des créanciers non obligataires de la société absorbée au lieu et place de celle-ci, sans que cette substitution emporte novation à leur égard.
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Les créanciers non obligataires des sociétés participant à l'opération de fusion et dont la créance est antérieure à la publicité donnée au projet de fusion peuvent former opposition à celui-ci dans le délai fixé par décret en Conseil d'Etat. Une décision de justice rejette l'opposition ou ordonne, soit le remboursement des créances, soit la constitution de garanties si la société absorbante en offre et si elles sont jugées suffisantes.
A défaut de remboursement des créances ou de constitution des garanties ordonnées, la fusion est inopposable à ce créancier.
L'opposition formée par un créancier n'a pas pour effet d'interdire la poursuite des opérations de fusion.
Les dispositions du présent article ne mettent pas obstacle à l'application des conventions autorisant le créancier à exiger le remboursement immédiat de sa créance en cas de fusion de la société débitrice avec une autre société.
Article L236-15
Le projet de fusion n'est pas soumis aux assemblées d'obligataires de la société absorbante. Toutefois, l'assemblée générale des obligataires peut donner mandat aux représentants de la masse de former opposition à la fusion dans les conditions et sous les effets prévus aux alinéas deuxième et suivants de l'article L. 236-14.
Article L236-16
Les articles L. 236-9 et L. 236-10 sont applicables à la scission.
Article L236-17
Lorsque la scission doit être réalisée par apports à des sociétés anonymes nouvelles, chacune des sociétés nouvelles peut être constituée sans autre apport que celui de la société scindée.
En ce cas, et si les actions de chacune des sociétés nouvelles sont attribuées aux actionnaires de la société scindée proportionnellement à leurs droits dans le capital de cette société, il n'y a pas lieu à l'établissement du rapport mentionné à l'article L. 236-10.
Dans tous les cas, les projets de statuts des sociétés nouvelles sont approuvés par l'assemblée générale extraordinaire de la société scindée. Il n'y a pas lieu à approbation de l'opération par l'assemblée générale de chacune des sociétés nouvelles.
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Article L236-18
Le projet de scission est soumis aux assemblées d'obligataires de la société scindée, conformément aux dispositions du 3° du I de l'article L. 228-65, à moins que le remboursement des titres sur simple demande de leur part ne soit offert auxdits obligataires. L'offre de remboursement est soumise à publicité, dont les modalités sont fixées par décret en Conseil d'Etat.
Lorsqu'il y a lieu à remboursement sur simple demande, les sociétés bénéficiaires des apports résultant de la scission sont débitrices solidaires des obligataires qui demandent le remboursement.
Article L236-19
Le projet de scission n'est pas soumis aux assemblées d'obligataires des sociétés auxquelles le patrimoine est transmis. Toutefois, l'assemblée ordinaire des obligataires peut donner mandat aux représentants de la masse de former opposition à la scission, dans les conditions et sous les effets prévus aux alinéas deuxième et suivants de l'article L. 236-14.
Article L236-20
Les sociétés bénéficiaires des apports résultant de la scission sont débitrices solidaires des obligataires et des créanciers non obligataires de la société scindée, au lieu et place de celle-ci sans que cette substitution emporte novation à leur égard.
Article L236-21
Par dérogation aux dispositions de l'article L. 236-20, il peut être stipulé que les sociétés bénéficiaires de la scission ne seront tenues que de la partie du passif de la société scindée mise à la charge respective et sans solidarité entre elles.
En ce cas, les créanciers non obligataires des sociétés participantes peuvent former opposition à la scission dans les conditions et sous les effets prévus aux alinéas deuxième et suivants de l'article L. 236-14.
Article L236-22
La société qui apporte une partie de son actif à une autre société et la société qui bénéficie de cet apport peuvent décider d'un commun accord de soumettre l'opération aux dispositions des articles L. 236-16 à L. 236-21.
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Section 3 : Dispositions particulières aux sociétés à responsabilité limitée
Article L236-23
Les dispositions des articles L. 236-10, L. 236-11, L. 236-13, L. 236-14, L. 236-15, L. 236-18, L. 236-19, L. 236-20 et L. 236-21 sont applicables aux fusions ou aux scissions des sociétés à responsabilité limitée au profit de sociétés de même forme.
Lorsque la fusion est réalisée par apports à une société à responsabilité limitée nouvelle, celle-ci peut être constituée sans autres apports que ceux des sociétés qui fusionnent.
Lorsque la scission est réalisée par apports à des sociétés à responsabilité limitée nouvelles, celles-ci peuvent être constituées sans autre apport que celui de la société scindée. En ce cas, et si les parts de chacune des sociétés nouvelles sont attribuées aux associés de la société scindée proportionnellement à leurs droits dans le capital de cette société, il n'y a pas lieu à l'établissement du rapport mentionné à l'article L. 236-10.
Dans les cas prévus aux deux alinéas précédents, les associés des sociétés qui disparaissent peuvent agir de plein droit en qualité de fondateurs des sociétés nouvelles et il est procédé conformément aux dispositions régissant les sociétés à responsabilité limitée.
Article L236-24
La société qui apporte une partie de son actif à une autre société et la société qui bénéficie de cet apport peuvent décider d'un commun accord de soumettre l'opération aux dispositions applicables en cas de scission par apports à des sociétés à responsabilité limitée existantes.
Section 4 : Dispositions particulières aux fusions transfrontalières
Article L236-25
Les sociétés anonymes, les sociétés en commandite par actions, les sociétés européennes immatriculées en France, les sociétés à responsabilité limitée et les sociétés par actions simplifiées peuvent participer, avec une ou plusieurs sociétés ressortissant du champ d'application du paragraphe 1 de l'article 2 de la directive 2005 / 56 / CE du Parlement européen et du Conseil, du 26 octobre 2005, sur les fusions transfrontalières des sociétés de capitaux et immatriculées dans un ou plusieurs autres Etats membres de la Communauté européenne, à une opération de fusion dans les conditions prévues par les dispositions de la présente section ainsi que par celles non contraires des sections 1 à 3 du présent chapitre.
Article L236-26
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Par dérogation à l'article L. 236-1 et lorsque la législation d'au moins un des Etats membres de la Communauté européenne concernés par la fusion le permet, le traité de fusion peut prévoir, pour les opérations mentionnées à l'article L. 236-25, le versement en espèces d'une soulte supérieure à 10 % de la valeur nominale ou, à défaut, du pair comptable, des titres, parts ou actions attribués.
Le pair comptable est défini comme la quote-part du capital social représentée par une action ou une part sociale.
Article L236-27
L'organe de gestion, d'administration ou de direction de chacune des sociétés participant à l'opération établit un rapport écrit qui est mis à la disposition des associés.
En complément du respect des obligations prévues à l'article L. 2323-19 du code du travail, le rapport mentionné au premier alinéa du présent article est mis à la disposition des délégués du personnel ou, à défaut, des salariés eux-mêmes, dans les conditions prévues par décret en Conseil d'Etat.
Sans préjudice du dernier alinéa de l'article L. 225-105, l'avis du comité d'entreprise consulté en application de l'article L. 2323-19 du code du travail ou, à défaut, l'avis des délégués du personnel est, s'il est transmis dans des délais prévus par décret en Conseil d'Etat, annexé au rapport mentionné au premier alinéa du présent article.
Article L236-28
Les associés qui décident la fusion peuvent subordonner la réalisation de celle-ci à leur approbation des modalités décidées pour la participation des salariés, au sens de l'article L. 2371-1 du code du travail, dans la société issue de la fusion transfrontalière.
Ils se prononcent, par une résolution spéciale, sur la possibilité de mise en œuvre de procédures d'analyse et de modification du rapport d'échange des titres ou d'indemnisation des associés minoritaires, lorsque cette possibilité est offerte aux associés de l'une des sociétés participant à la fusion par la législation qui lui est applicable. La décision prise en application de ces procédures lie la société issue de la fusion.
Article L236-29
Dans un délai fixé par décret en Conseil d'Etat, le greffier du tribunal dans le ressort duquel la société participant à l'opération est immatriculée délivre, après avoir procédé à la vérification prévue à l'article L. 236-6, une attestation de conformité des actes et des formalités préalables à la fusion.
Ce certificat précise si une procédure d'analyse et de modification du rapport d'échange des titres ou d'indemnisation des associés minoritaires est en cours.
Article L236-30
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Un notaire ou le greffier du tribunal dans le ressort duquel la société issue de la fusion sera immatriculée contrôle, dans un délai fixé par décret en Conseil d'Etat, la légalité de la réalisation de la fusion et de la constitution de la société nouvelle issue de la fusion.
Il contrôle en particulier que les sociétés qui fusionnent ont approuvé un projet de fusion dans les mêmes termes et que les modalités relatives à la participation des salariés ont été fixées conformément au titre VII du livre III de la deuxième partie du code du travail.
Article L236-31
La fusion transfrontalière prend effet :
1° En cas de création d'une société nouvelle, conformément à l'article L. 236-4 ;
2° En cas de transmission à une société existante, selon les prévisions du contrat, sans toutefois pouvoir être antérieure au contrôle de légalité, ni postérieure à la date de clôture de l'exercice en cours de la société bénéficiaire pendant lequel a été réalisé ce contrôle.
La nullité d'une fusion transfrontalière ne peut pas être prononcée après la prise d'effet de l'opération.
Article L236-32
Lorsque l'une des sociétés participant à l'opération mentionnée à l'article L. 236-25 est soumise à un régime de participation des salariés, et que tel est également le cas de la société issue de la fusion, cette dernière adopte une forme juridique permettant l'exercice de cette participation.
Chapitre VII : De la liquidation
Section 1 : Dispositions générales
Article L237-1
Sous réserve des dispositions du présent chapitre, la liquidation des sociétés est régie par les dispositions contenues dans les statuts.
Article L237-2
La société est en liquidation dès l'instant de sa dissolution pour quelque cause que ce soit sauf dans
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le cas prévu au troisième alinéa de l'article 1844-5 du code civil. Sa dénomination sociale est suivie de la mention " société en liquidation ".
La personnalité morale de la société subsiste pour les besoins de la liquidation, jusqu'à la clôture de celle-ci.
La dissolution d'une société ne produit ses effets à l'égard des tiers qu'à compter de la date à laquelle elle est publiée au registre du commerce et des sociétés.
Article L237-3
L'acte de nomination du liquidateur est publié par celui-ci, dans les conditions et délais fixés par décret en Conseil d'Etat, qui détermine également les documents à déposer en annexe au registre du commerce et des sociétés.
Article L237-4
Ne peuvent être nommées liquidateurs les personnes auxquelles l'exercice des fonctions de directeur général, d'administrateur, de gérant de société, de membre du directoire ou du conseil de surveillance est interdit ou qui sont déchues du droit d'exercer ces fonctions.
Article L237-5
La dissolution de la société n'entraîne pas de plein droit la résiliation des baux des immeubles utilisés pour son activité sociale, y compris des locaux d'habitation dépendant de ces immeubles.
Si, en cas de cession du bail, l'obligation de garantie ne peut plus être assurée dans les termes de celui-ci, il peut y être substitué, par décision de justice, toute garantie offerte par le cessionnaire ou un tiers, et jugée suffisante.
Article L237-6
Sauf consentement unanime des associés, la cession de tout ou partie de l'actif de la société en liquidation à une personne ayant eu dans cette société la qualité d'associé en nom, de commandité, de gérant, d'administrateur, de directeur général, de membre du conseil de surveillance, de membre du directoire, de commissaire aux comptes ou de contrôleur, ne peut avoir lieu qu'avec l'autorisation du tribunal de commerce, le liquidateur et, s'il en existe, le commissaire aux comptes ou le contrôleur dûment entendus.
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Article L237-7
La cession de tout ou partie de l'actif de la société en liquidation au liquidateur ou à ses employés ou à leurs conjoint, ascendants ou descendants est interdite.
Article L237-8
La cession globale de l'actif de la société ou l'apport de l'actif à une autre société, notamment par voie de fusion, est autorisé :
1° Dans les sociétés en nom collectif, à l'unanimité des associés ;
2° Dans les sociétés en commandite simple, à l'unanimité des commandités et à la majorité en nombre et en capital des commanditaires ;
3° Dans les sociétés à responsabilité limitée, à la majorité exigée pour la modification des statuts ;
4° Dans les sociétés par actions, aux conditions de quorum et de majorité prévues pour les assemblées extraordinaires et, en outre, dans les sociétés en commandite par actions, avec l'accord unanime des commandités.
Article L237-9
Les associés, y compris les titulaires d'actions à dividende prioritaire sans droit de vote, sont convoqués en fin de liquidation pour statuer sur le compte définitif, sur le quitus de la gestion du liquidateur et la décharge de son mandat et pour constater la clôture de la liquidation.
A défaut, tout associé peut demander en justice la désignation d'un mandataire chargé de procéder à la convocation.
Article L237-10
Si l'assemblée de clôture prévue à l'article L. 237-9 ne peut délibérer ou si elle refuse d'approuver les comptes du liquidateur, il est statué, par décision de justice, à la demande de celui-ci ou de tout intéressé.
Article L237-11
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L'avis de clôture de la liquidation est publié selon les modalités fixées par décret en Conseil d'Etat.
Article L237-12
Le liquidateur est responsable, à l'égard tant de la société que des tiers, des conséquences dommageables des fautes par lui commises dans l'exercice de ses fonctions.
L'action en responsabilité contre les liquidateurs se prescrit dans les conditions prévues à l'article L. 225-254.
Article L237-13
Toutes actions contre les associés non liquidateurs ou leurs conjoint survivant, héritiers ou ayants cause, se prescrivent par cinq ans à compter de la publication de la dissolution de la société au registre du commerce et des sociétés.
Section 2 : Dispositions applicables sur décision judiciaire
Article L237-14
I. - A défaut de clauses statutaires ou de convention expresse entre les parties, la liquidation de la société dissoute est effectuée conformément aux dispositions de la présente section, sans préjudice de l'application de la première section du présent chapitre.
II. - En outre, il peut être ordonné par décision de justice que cette liquidation sera effectuée dans les mêmes conditions à la demande :
1° De la majorité des associés, dans les sociétés en nom collectif ;
2° D'associés représentant au moins 5 % du capital, dans les sociétés en commandite simple, les sociétés à responsabilité limitée et les sociétés par actions ;
3° Des créanciers sociaux.
III. - Dans ce cas, les dispositions des statuts contraires à celles du présent chapitre sont réputées non écrites.
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Article L237-15
Les pouvoirs du conseil d'administration, du directoire ou des gérants prennent fin à dater de la décision de justice prise en application de l'article L. 237-14 ou de la dissolution de la société si elle est postérieure.
Article L237-16
La dissolution de la société ne met pas fin aux fonctions du conseil de surveillance et des commissaires aux comptes.
Article L237-17
En l'absence de commissaires aux comptes, et même dans les sociétés qui ne sont pas tenues d'en désigner, un ou plusieurs contrôleurs peuvent être nommés par les associés dans les conditions prévues au I de l'article L. 237-27. A défaut, ils peuvent être désignés, par décision de justice, à la demande du liquidateur ou de tout intéressé.
L'acte de nomination des contrôleurs fixe leurs pouvoirs, obligations et rémunérations ainsi que la durée de leurs fonctions. Ils encourent la même responsabilité que les commissaires aux comptes.
Article L237-18
I. - Un ou plusieurs liquidateurs sont désignés par les associés, si la dissolution résulte du terme statutaire ou si elle est décidée par les associés.
II. - Le liquidateur est nommé :
1° Dans les sociétés en nom collectif, à l'unanimité des associés ;
2° Dans les sociétés en commandite simple, à l'unanimité des commandités et à la majorité en capital des commanditaires ;
3° Dans les sociétés à responsabilité limitée, à la majorité en capital des associés ;
4° Dans les sociétés anonymes, aux conditions de quorum et de majorité prévues pour les assemblées générales ordinaires ;
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5° Dans les sociétés en commandite par actions, aux conditions de quorum et de majorité prévues pour les assemblées générales ordinaires, cette majorité devant comprendre l'unanimité des commandités ;
6° Dans les sociétés par actions simplifiées, à l'unanimité des associés, sauf clause contraire.
Article L237-19
Si les associés n'ont pu nommer un liquidateur, celui-ci est désigné par décision de justice à la demande de tout intéressé, dans les conditions déterminées par décret en conseil d'Etat.
Article L237-20
Si la dissolution de la société est prononcée par décision de justice, cette décision désigne un ou plusieurs liquidateurs.
Article L237-21
La durée du mandat du liquidateur ne peut excéder trois ans. Toutefois, ce mandat peut être renouvelé par les associés ou le président du tribunal de commerce, selon que le liquidateur a été nommé par les associés ou par décision de justice.
Si l'assemblée des associés n'a pu être valablement réunie, le mandat est renouvelé par décision de justice, à la demande du liquidateur.
En demandant le renouvellement de son mandat, le liquidateur indique les raisons pour lesquelles la liquidation n'a pu être clôturée, les mesures qu'il envisage de prendre et les délais que nécessite l'achèvement de la liquidation.
Article L237-22
Le liquidateur est révoqué et remplacé selon les formes prévues pour sa nomination.
Article L237-23
Dans les six mois de sa nomination, le liquidateur convoque l'assemblée des associés à laquelle il
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fait rapport sur la situation active et passive de la société, sur la poursuite des opérations de liquidation et le délai nécessaire pour les terminer. Le délai dans lequel le liquidateur fait son rapport peut être porté à douze mois sur sa demande par décision de justice.
A défaut, il est procédé à la convocation de l'assemblée soit par l'organe de contrôle, s'il en existe un, soit par un mandataire désigné, par décision de justice, à la demande de tout intéressé.
Si la réunion de l'assemblée est impossible ou si aucune décision n'a pu être prise, le liquidateur demande en justice les autorisations nécessaires pour aboutir à la liquidation.
Article L237-24
Le liquidateur représente la société. Il est investi des pouvoirs les plus étendus pour réaliser l'actif, même à l'amiable. Les restrictions à ces pouvoirs, résultant des statuts ou de l'acte de nomination, ne sont pas opposables aux tiers.
Il est habilité à payer les créanciers et répartir le solde disponible.
Il ne peut continuer les affaires en cours ou en engager de nouvelles pour les besoins de la liquidation que s'il y a été autorisé, soit par les associés, soit par décision de justice s'il a été nommé par la même voie.
Article L237-25
Le liquidateur, dans les trois mois de la clôture de chaque exercice, établit les comptes annuels au vu de l'inventaire qu'il a dressé des divers éléments de l'actif et du passif existant à cette date et un rapport écrit par lequel il rend compte des opérations de liquidation au cours de l'exercice écoulé.
Sauf dispense accordée par décision de justice, le liquidateur convoque selon les modalités prévues par les statuts, au moins une fois par an et dans les six mois de la clôture de l'exercice l'assemblée des associés qui statue sur les comptes annuels, donne les autorisations nécessaires et éventuellement renouvelle le mandat des contrôleurs, commissaires aux comptes ou membres du conseil de surveillance.
Si l'assemblée n'est pas réunie, le rapport prévu au premier alinéa ci-dessus est déposé au greffe du tribunal de commerce et communiqué à tout intéressé.
Article L237-26
En période de liquidation, les associés peuvent prendre communication des documents sociaux, dans les mêmes conditions qu'antérieurement.
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Article L237-27
I. - Les décisions prévues au deuxième alinéa de l'article L. 237-25 sont prises :
1° A la majorité des associés en capital, dans les sociétés en nom collectif, en commandite simple et à responsabilité limitée ;
2° Dans les conditions de quorum et de majorité des assemblées ordinaires, dans les sociétés par actions ;
3° Sauf clause contraire, à l'unanimité des associés, dans les sociétés par actions simplifiée.
II. - Si la majorité requise ne peut être réunie, il est statué, par décision de justice, à la demande du liquidateur ou de tout intéressé.
III. - Lorsque la délibération entraîne modification des statuts, elle est prise dans les conditions prescrites à cet effet, pour chaque forme de société.
IV. - Les associés liquidateurs peuvent prendre part au vote.
Article L237-28
En cas de continuation de l'exploitation sociale, le liquidateur est tenu de convoquer l'assemblée des associés, dans les conditions prévues à l'article L. 237-25. A défaut, tout intéressé peut demander la convocation, soit par les commissaires aux comptes, le conseil de surveillance ou l'organe de contrôle, soit par un mandataire désigné par décision de justice.
Article L237-29
Sauf clause contraire des statuts, le partage des capitaux propres subsistant après remboursement du nominal des actions ou des parts sociales est effectué entre les associés dans les mêmes proportions que leur participation au capital social.
Article L237-30
Le remboursement des actions à dividende prioritaire sans droit de vote doit s'effectuer avant celui des actions ordinaires.
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Il en est de même pour le dividende prioritaire qui n'a pas été intégralement versé.
Les actions à dividende prioritaire sans droit de vote ont, proportionnellement à leur montant nominal, les mêmes droits que les autres actions sur le boni de liquidation.
Toute clause contraire aux dispositions du présent article est réputée non écrite.
Article L237-31
Sous réserve des droits des créanciers, le liquidateur décide s'il convient de distribuer les fonds devenus disponibles en cours de liquidation.
Après mise en demeure infructueuse du liquidateur, tout intéressé peut demander en justice qu'il soit statué sur l'opportunité d'une répartition en cours de liquidation.
La décision de répartition des fonds est publiée selon les modalités fixées par décret en Conseil d'Etat.
Chapitre VIII : Des injonctions de faire
Article L238-1
Lorsque les personnes intéressées ne peuvent obtenir la production, la communication ou la transmission des documents visés aux articles L. 221-7, L. 223-26, L. 225-115, L. 225-116, L. 225-117, L. 225-118, L. 225-129, L. 225-129-5, L. 225-129-6, L. 225-135, L. 225-136, L. 225-138, L. 225-177, L. 225-184, L. 228-69, L. 237-3 et L. 237-26, elles peuvent demander au président du tribunal statuant en référé soit d'enjoindre sous astreinte au liquidateur ou aux administrateurs, gérants, et dirigeants de les communiquer, soit de désigner un mandataire chargé de procéder à cette communication.
La même action est ouverte à toute personne intéressée ne pouvant obtenir du liquidateur, des administrateurs, gérants ou dirigeants communication d'une formule de procuration conforme aux prescriptions fixées par décret en Conseil d'Etat ou des renseignements exigés par ce décret en vue de la tenue des assemblées.
Lorsqu'il est fait droit à la demande, l'astreinte et les frais de procédure sont à la charge des administrateurs, des gérants, des dirigeants ou du liquidateur mis en cause.
Article L238-2
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Tout intéressé peut demander au président du tribunal statuant en référé d'enjoindre sous astreinte au liquidateur de remplir les obligations prévues aux articles L. 237-21 et L. 237-25.
Article L238-3
Le ministère public ainsi que tout intéressé peuvent demander au président du tribunal statuant en référé d'enjoindre sous astreinte au représentant légal d'une société à responsabilité limitée, d'une société anonyme, d'une société par actions simplifiée, d'une société européenne ou d'une société en commandite par actions de porter sur tous les actes et documents émanant de la société la dénomination sociale, précédée ou suivie immédiatement et lisiblement des mots "société à responsabilité limitée" ou des initiales "SARL", "société anonyme" ou des initiales "SA", "société par actions simplifiée" ou des initiales "SAS", "société européenne" ou des initiales "SE" ou "société en commandite par actions", et de l'énonciation du capital social.
Article L238-3-1
Tout intéressé peut demander au président du tribunal statuant en référé d'enjoindre sous astreinte aux sociétés utilisant le sigle "SE" dans leur dénomination sociale en méconnaissance des dispositions de l'article 11 du règlement (CE) n° 2157/2001 du Conseil, du 8 octobre 2001, relatif au statut de la société européenne (SE), de modifier cette dénomination sociale.
Article L238-4
Tout intéressé peut demander au président du tribunal statuant en référé d'enjoindre sous astreinte au président des organes de direction et d'administration de transcrire les procès-verbaux de ces réunions sur un registre spécial tenu au siège social.
Article L238-5
Tout intéressé peut demander au président du tribunal statuant en référé d'enjoindre sous astreinte au président de l'assemblée générale des actionnaires ou des obligataires de transcrire les procès-verbaux de ces assemblées sur un registre spécial tenu au siège social.
Article L238-6
Si l'assemblée spéciale des actionnaires à dividende prioritaire n'est pas consultée dans les
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conditions prévues aux articles L. 228-35-6, L. 228-35-7 et L. 228-35-10, le président du tribunal statuant en référé peut, à la demande de tout actionnaire, enjoindre sous astreinte aux gérants ou au président du conseil d'administration ou du directoire de convoquer cette assemblée ou désigner un mandataire chargé de procéder à cette convocation.
La même action est ouverte à tout actionnaire ou tout titulaire de valeurs mobilières donnant accès au capital lorsque l'assemblée générale ou spéciale à laquelle il appartient n'est pas consultée dans les conditions prévues à l'article L. 225-99, au deuxième alinéa de l'article L. 225-129-6 et aux articles L. 228-16 ou L. 228-103.
Chapitre IX : De la location d'actions et de parts sociales
Article L239-1
Les statuts peuvent prévoir que les actions des sociétés par actions ou les parts sociales des sociétés à responsabilité limitée soumises à l'impôt sur les sociétés de plein droit ou sur option peuvent être données à bail, au sens des dispositions de l'article 1709 du code civil, au profit d'une personne physique.
La location d'actions ne peut porter que sur des titres nominatifs non négociables sur un marché réglementé, non inscrits aux opérations d'un dépositaire central et non soumis à l'obligation de conservation prévue à l'article L. 225-197-1 du présent code ou aux délais d'indisponibilité prévus aux chapitres II et III du titre IV du livre IV du code du travail.
La location d'actions ou de parts sociales ne peut pas porter sur des titres :
1° Détenus par des personnes physiques dans le cadre de la gestion de leur patrimoine privé lorsque les produits et plus-values bénéficient d'un régime d'exonération en matière d'impôt sur le revenu ;
2° Inscrits à l'actif d'une société de capital-risque mentionnée à l'article 1er-1 de la loi n° 85-695 du 11 juillet 1985 portant diverses dispositions d'ordre économique et financier ou d'une société unipersonnelle d'investissement à risque mentionnée à l'article 208 D du code général des impôts ;
3° Détenus par un fonds commun de placement à risques, un fonds commun de placement dans l'innovation ou un fonds d'investissement de proximité respectivement mentionnés aux articles L. 214-36, L. 214-41 et L. 214-41-1 du code monétaire et financier.
A peine de nullité, les actions ou parts louées ne peuvent faire l'objet d'une sous-location ou d'un prêt de titres au sens des articles L. 211-22 à L. 211-26 du même code.
Les actions des sociétés par actions ou les parts sociales des sociétés à responsabilité limitée, lorsque les unes ou les autres de ces sociétés sont constituées pour l'exercice des professions visées à l'article 1er de la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés
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des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est protégé et aux sociétés de participations financières de professions libérales, ne peuvent pas faire l'objet du contrat de bail prévu au présent article, sauf au profit de professionnels salariés ou collaborateurs libéraux exerçant en leur sein.
Lorsque la société fait l'objet d'une procédure de sauvegarde ou de redressement judiciaire en application du titre III du livre VI du présent code, la location de ses actions ou parts sociales ne peut intervenir que dans les conditions fixées par le tribunal ayant ouvert cette procédure.
Article L239-2
Le contrat de bail est constaté par acte authentique ou sous seing privé soumis à la procédure de l'enregistrement. Il comporte, à peine de nullité, des mentions dont la liste est fixée par décret en Conseil d'Etat.
Il est rendu opposable à la société dans les formes prévues à l'article 1690 du code civil.
La délivrance des actions ou parts est réalisée à la date à laquelle est inscrite, dans le registre des titres nominatifs de la société par actions ou dans les statuts de la société à responsabilité limitée, à côté du nom de l'actionnaire ou de l'associé, la mention du bail et du nom du locataire. A compter de cette date, la société doit adresser au locataire les informations dues aux actionnaires ou associés et prévoir sa participation et son vote aux assemblées conformément aux dispositions du deuxième alinéa de l'article L. 239-3.
Les actions ou parts louées font l'objet d'une évaluation en début et en fin de contrat, ainsi qu'à la fin de chaque exercice comptable lorsque le bailleur est une personne morale. Cette évaluation est effectuée sur la base de critères tirés des comptes sociaux. Elle est certifiée par un commissaire aux comptes.
Article L239-3
Les dispositions légales ou statutaires prévoyant l'agrément du cessionnaire de parts ou d'actions sont applicables dans les mêmes conditions au locataire.
Le droit de vote attaché à l'action ou à la part sociale louée appartient au bailleur dans les assemblées statuant sur les modifications statutaires ou le changement de nationalité de la société et au locataire dans les autres assemblées. Pour l'exercice des autres droits attachés aux actions et parts sociales louées, le bailleur est considéré comme le nu-propriétaire et le locataire comme l'usufruitier.
Pour l'application des dispositions du livre IV du présent code, le bailleur et le locataire sont considérés comme détenteurs d'actions ou de parts sociales.
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Article L239-4
Le bail est renouvelé dans les mêmes conditions que la conclusion du bail initial.
En cas de non-renouvellement du contrat de bail ou de résiliation, la partie la plus diligente fait procéder à la radiation de la mention portée dans le registre des titres nominatifs de la société par actions ou dans les statuts de la société à responsabilité limitée.
Article L239-5
Tout intéressé peut demander au président du tribunal statuant en référé d'enjoindre sous astreinte au représentant légal de la société par actions ou de la société à responsabilité limitée, en cas de signification ou d'arrivée à terme d'un contrat de bail portant sur des actions ou des parts sociales de la société, de modifier le registre des titres nominatifs ou les statuts et de convoquer l'assemblée des associés à cette fin.
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Partie législative
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique
TITRE IV : Dispositions pénales
Chapitre Ier : Des infractions concernant les sociétés à responsabilité limitée
Article L241-1
Est puni d'un emprisonnement de six mois et d'une amende de 9 000 euros le fait, pour les associés d'une société à responsabilité limitée, d'omettre, dans l'acte de société, la déclaration concernant la répartition des parts sociales entre tous les associés, la libération des parts ou le dépôt des fonds.
Les dispositions du présent article sont applicables en cas d'augmentation du capital.
Article L241-2
Est puni d'un emprisonnement de six mois et d'une amende de 9 000 euros le fait, pour des gérants, d'émettre, directement ou par personne interposée, pour le compte de la société des valeurs mobilières quelconques à l'exception des obligations émises dans les conditions déterminées par l'article L. 223-11.
Article L241-3
Est puni d'un emprisonnement de cinq ans et d'une amende de 375 000 euros :
1° Le fait, pour toute personne, de faire attribuer frauduleusement à un apport en nature une évaluation supérieure à sa valeur réelle ;
2° Le fait, pour les gérants, d'opérer entre les associés la répartition de dividendes fictifs, en l'absence d'inventaire ou au moyen d'inventaires frauduleux ;
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3° Le fait, pour les gérants, même en l'absence de toute distribution de dividendes, de présenter aux associés des comptes annuels ne donnant pas, pour chaque exercice, une image fidèle du résultat des opérations de l'exercice, de la situation financière et du patrimoine à l'expiration de cette période en vue de dissimuler la véritable situation de la société ;
4° Le fait, pour les gérants, de faire, de mauvaise foi, des biens ou du crédit de la société, un usage qu'ils savent contraire à l'intérêt de celle-ci, à des fins personnelles ou pour favoriser une autre société ou entreprise dans laquelle ils sont intéressés directement ou indirectement ;
5° Le fait, pour les gérants, de faire, de mauvaise foi, des pouvoirs qu'ils possèdent ou des voix dont ils disposent, en cette qualité, un usage qu'ils savent contraire aux intérêts de la société, à des fins personnelles ou pour favoriser une autre société ou une autre entreprise dans laquelle ils sont intéressés directement ou indirectement.
Article L241-4
Est puni d'une amende de 9000 euros :
1° Le fait, pour les gérants, de ne pas, pour chaque exercice, dresser l'inventaire, établir les comptes annuels et un rapport de gestion ;
2°et 3° (supprimés).
Article L241-5
Est puni d'un emprisonnement de six mois et d'une amende de 9 000 euros le fait, pour les gérants, de ne pas procéder à la réunion de l'assemblée des associés dans les six mois de la clôture de l'exercice ou, en cas de prolongation, dans le délai fixé par décision de justice, ou de ne pas soumettre à l'approbation de ladite assemblée ou de l'associé unique les documents prévus au 1° de l'article L. 241-4.
Article L241-6
Est puni d'un emprisonnement de six mois et d'une amende de 4 500 euros le fait, pour les gérants, lorsque les capitaux propres de la société, du fait de pertes constatées dans les documents comptables, deviennent inférieurs à la moitié du capital social :
1° De ne pas dans les quatre mois qui suivent l'approbation des comptes ayant fait apparaître ces pertes, consulter les associés afin de décider s'il y a lieu à dissolution anticipée de la société ;
2° De ne pas déposer au greffe du tribunal de commerce, inscrire au registre du commerce et des
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sociétés et publier dans un journal d'annonces légales, la décision adoptée par les associés.
Article L241-9
Les dispositions des articles L. 241-2 à L. 241-6 sont applicables à toute personne qui, directement ou par personne interposée, aura, en fait, exercé la gestion d'une société à responsabilité limitée sous le couvert ou au lieu et place de son gérant légal.
Chapitre II : Des infractions concernant les sociétés anonymes
Section 1 : Des infractions relatives à la constitution
Article L242-1
Est puni d'une amende de 9 000 euros le fait, pour les fondateurs, le président, les administrateurs ou les directeurs généraux d'une société anonyme, d'émettre des actions ou des coupures d'actions soit avant l'immatriculation de ladite société au registre du commerce et des sociétés, soit à une époque quelconque, si l'immatriculation a été obtenue par fraude, soit encore sans que les formalités de constitution de ladite société aient été régulièrement accomplies.
Un emprisonnement d'un an peut, en outre, être prononcé si les actions ou coupures d'actions sont émises sans que les actions de numéraire aient été libérées à la souscription d'un quart au moins ou sans que les actions d'apport aient été intégralement libérées antérieurement à l'immatriculation de la société au registre du commerce et des sociétés.
Est puni des peines prévues à l'alinéa précédent le fait, pour les personnes visées au premier alinéa, de ne pas maintenir les actions de numéraire en la forme nominative jusqu'à leur entière libération.
Les peines prévues au présent article peuvent être portées au double, lorsque les actions ou les coupures d'actions émises ont fait l'objet d'une offre au public.
Article L242-2
Est puni d'un emprisonnement de cinq ans et d'une amende de 9000 euros le fait, pour toute personne :
1°, 2° et 3° (supprimés) ;
4° De faire attribuer frauduleusement à un apport en nature une évaluation supérieure à sa valeur réelle.
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Article L242-3
Est puni d'un emprisonnement d'un an et d'une amende de 9000 euros le fait, pour les fondateurs, le président du conseil d'administration, les administrateurs ou les directeurs généraux d'une société anonyme, ainsi que pour les titulaires ou porteurs d'actions, de négocier :
1° Des actions de numéraire qui ne sont pas demeurées sous la forme nominative jusqu'à leur entière libération ;
2° Des actions de numéraire pour lesquelles le versement du quart n'a pas été effectué ;
3° (supprimé).
Article L242-4
Est puni des peines prévues à l'article L. 242-3 le fait, pour toute personne, d'avoir établi ou publié la valeur des actions ou promesses d'actions visées audit article.
Article L242-5
Est puni d'un emprisonnement de six mois et d'une amende de 9000 euros le fait d'accepter ou de conserver les fonctions de commissaire aux apports, nonobstant les incompatibilités et interdictions légales.
Section 2 : Des infractions relatives à la direction et à l'administration
Article L242-6
Est puni d'un emprisonnement de cinq ans et d'une amende de 375 000 euros le fait pour :
1° Le président, les administrateurs ou les directeurs généraux d'une société anonyme d'opérer entre les actionnaires la répartition de dividendes fictifs, en l'absence d'inventaire, ou au moyen d'inventaires frauduleux ;
2° Le président, les administrateurs ou les directeurs généraux d'une société anonyme de publier ou présenter aux actionnaires, même en l'absence de toute distribution de dividendes, des comptes
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annuels ne donnant pas, pour chaque exercice, une image fidèle du résultat des opérations de l'exercice, de la situation financière et du patrimoine, à l'expiration de cette période, en vue de dissimuler la véritable situation de la société ;
3° Le président, les administrateurs ou les directeurs généraux d'une société anonyme de faire, de mauvaise foi, des biens ou du crédit de la société, un usage qu'ils savent contraire à l'intérêt de celle-ci, à des fins personnelles ou pour favoriser une autre société ou entreprise dans laquelle ils sont intéressés directement ou indirectement ;
4° Le président, les administrateurs ou les directeurs généraux d'une société anonyme de faire, de mauvaise foi, des pouvoirs qu'ils possèdent ou des voix dont ils disposent, en cette qualité, un usage qu'ils savent contraire aux intérêts de la société, à des fins personnelles ou pour favoriser une autre société ou entreprise dans laquelle ils sont intéressés directement ou indirectement.
Article L242-8
Est puni d'une amende de 9000 euros le fait, pour le président, les administrateurs ou les directeurs généraux d'une société anonyme, de ne pas, pour chaque exercice, dresser l'inventaire et établir des comptes annuels et un rapport de gestion.
Section 3 : Des infractions relatives aux assemblées d'actionnaires
Article L242-9
Est puni d'un emprisonnement de deux ans et d'une amende de 9000 euros :
1° Le fait d'empêcher un actionnaire de participer à une assemblée d'actionnaires ;
2° Alinéa abrogé.
3° Le fait de se faire accorder, garantir ou promettre des avantages pour voter dans un certain sens ou pour ne pas participer au vote, ainsi que le fait d'accorder, garantir ou promettre ces avantages.
Article L242-10
Est puni d'un emprisonnement de six mois et d'une amende de 9000 euros le fait, pour le président ou les administrateurs d'une société anonyme, de ne pas réunir l'assemblée générale ordinaire dans les six mois de la clôture de l'exercice ou, en cas de prolongation, dans le délai fixé par décision de justice ou de ne pas soumettre à l'approbation de ladite assemblée les comptes annuels et le rapport de gestion prévus à l'article L. 232-1.
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Article L242-15
Est puni d'une amende de 3750 euros le fait, pour le président ou les administrateurs d'une société anonyme :
1° Paragraphe abrogé.
2° De ne pas annexer à la feuille de présence les pouvoirs donnés à chaque mandataire ;
3° De ne pas procéder à la constatation des décisions de toute assemblée d'actionnaires par un procès-verbal signé des membres du bureau mentionnant : la date et le lieu de la réunion, le mode de convocation, l'ordre du jour, la composition du bureau, le nombre d'actions participant au vote et le quorum atteint, les documents et rapports soumis à l'assemblée, un résumé des débats, le texte des résolutions mises aux voix et le résultat des votes.
Section 4 : Des infractions relatives aux modifications du capital social
Sous-section 1 : De l'augmentation du capital
Article L242-17
I.-Est puni d'une amende de 9000 euros le fait, pour le président, les administrateurs ou les directeurs généraux d'une société anonyme, d'émettre, lors d'une augmentation de capital, des actions ou des coupures d'actions :
1° Soit avant que le certificat du dépositaire ait été établi, ou le contrat de garantie prévu à l'article L. 225-145 signé ;
2° Soit encore sans que les formalités préalables à l'augmentation de capital aient été régulièrement accomplies.
II.-Un emprisonnement d'un an peut, en outre, être prononcé, si les actions ou coupures d'actions sont émises sans que le capital antérieurement souscrit de la société ait été intégralement libéré, ou sans que les nouvelles actions d'apport aient été intégralement libérées antérieurement à l'inscription modificative au registre du commerce et des sociétés, ou encore, sans que les actions de numéraire nouvelles aient été libérées, lors de la souscription, d'un quart au moins de leur valeur nominale et, le cas échéant, de la totalité de la prime d'émission.
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III.-Est puni des peines d'amende et d'emprisonnement prévues au I et au II le fait, pour les mêmes personnes de ne pas maintenir les actions de numéraire en la forme nominative jusqu'à leur entière libération.
IV. # Les peines prévues au présent article peuvent être portées au double, lorsque les actions ou les coupures d'actions émises ont fait l'objet d'une offre au public.
V.-Les dispositions du présent article ne sont applicables ni aux actions qui ont été régulièrement émises par conversion d'obligations convertibles à tout moment, ou par utilisation des bons de souscription, ni aux actions émises dans les conditions prévues aux articles L. 232-18 à L. 232-20.
Article L242-20
Est puni d'un emprisonnement de deux ans et d'une amende de 18 000 euros le fait, pour le président, les administrateurs ou les commissaires aux comptes d'une société anonyme, de donner ou confirmer des indications inexactes dans les rapports présentés à l'assemblée générale appelée à décider de la suppression du droit préférentiel de souscription des actionnaires.
Article L242-21
Les dispositions des articles L. 242-2 à L. 242-5 relatives à la constitution des sociétés anonymes sont applicables en cas d'augmentation de capital.
Sous-section 3 : De la réduction du capital
Article L242-23
Est puni d'une amende de 9000 euros le fait, pour le président ou les administrateurs d'une société anonyme, de procéder à une réduction du capital social :
1° Sans respecter l'égalité des actionnaires ;
2° Sans assurer la publicité de la décision de réduction du capital, au registre du commerce et des sociétés et dans un journal habilité à recevoir les annonces légales.
Article L242-24
Est puni de la peine prévue à l'article L. 242-23 le fait, pour le président, les administrateurs ou les
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directeurs généraux d'une société anonyme, de souscrire, acquérir, prendre en gage, conserver ou vendre, au nom de la société, des actions émises par celle-ci en violation des dispositions des articles L. 225-206 à L. 225-215.
Est passible de la même peine le fait, pour le président, les administrateurs ou les directeurs généraux, d'utiliser des actions achetées par la société, en application de l'article L. 225-208, à des fins autres que celles prévues audit article.
Est passible de la même peine le fait, pour le président, les administrateurs ou les directeurs généraux d'une société anonyme, d'effectuer, au nom de celle-ci, les opérations interdites par le premier alinéa de l'article L. 225-216.
Section 6 : Des infractions relatives à la dissolution
Article L242-29
Est puni d'un emprisonnement de six mois et d'une amende de 4500 euros le fait, pour le président ou les administrateurs d'une société anonyme, lorsque les capitaux propres de la société, du fait de pertes constatées dans les documents comptables, deviennent inférieurs à la moitié du capital social :
1° De ne pas, dans les quatre mois qui suivent l'approbation des comptes ayant fait apparaître ces pertes, convoquer l'assemblée générale extraordinaire à l'effet de décider s'il y a lieu à dissolution anticipée de la société ;
2° De ne pas déposer au greffe du tribunal de commerce, inscrire au registre du commerce et des sociétés et publier dans un journal d'annonces légales la décision adoptée par l'assemblée générale.
Section 7 : Des infractions relatives aux sociétés anonymes comportant un directoire et un conseil de surveillance
Article L242-30
Les peines prévues par les articles L. 242-6 à L. 242-29 pour les présidents, les directeurs généraux et les administrateurs des sociétés anonymes sont applicables, selon leurs attributions respectives, aux membres du directoire et aux membres du conseil de surveillance des sociétés anonymes régies par les dispositions des articles L. 225-57 à L. 225-93.
Les dispositions de l'article L. 246-2 sont en outre applicables aux sociétés anonymes régies par les articles L. 225-57 à L. 225-93.
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Section 8 : Des infractions relatives aux sociétés anonymes à participation ouvrière
Article L242-31
Est puni d'une amende de 3 750 euros le fait, pour le président, les administrateurs ou les directeurs généraux d'une société anonyme à participation ouvrière, usant de la faculté d'émettre des actions de travail, de ne pas mentionner cette circonstance par l'addition des mots "à participation ouvrière" sur tous actes ou sur tous documents émanant de la société et destinés aux tiers.
Chapitre III : Des infractions concernant les sociétés en commandite par actions
Article L243-1
Les articles L. 242-1 à L. 242-29 s'appliquent aux sociétés en commandite par actions.
Les peines prévues pour les présidents, les administrateurs ou les directeurs généraux des sociétés anonymes sont applicables, en ce qui concerne leurs attributions, aux gérants des sociétés en commandite par actions.
Chapitre IV : Des infractions concernant les sociétés par actions simplifiées
Article L244-1
Les articles L. 242-1 à L. 242-6, L. 242-8, L. 242-17 à L. 242-29 s'appliquent aux sociétés par actions simplifiées.
Les peines prévues pour le président, les administrateurs ou les directeurs généraux des sociétés anonymes sont applicables au président et aux dirigeants des sociétés par actions simplifiées.
Les articles L. 242-20, L. 242-26, et L. 242-27 s'appliquent aux commissaires aux comptes des sociétés par actions simplifiées.
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Article L244-2
Le fait, pour un président ou un dirigeant de société par actions simplifiée de ne pas consulter les associés dans les conditions prévues par les statuts en cas d'augmentation, d'amortissement ou de réduction du capital, de fusion, de scission, de dissolution ou de transformation en une société d'une autre forme est puni de six mois d'emprisonnement et de 7500 euros d'amende.
Article L244-3
Est puni d'une amende de 18 000 euros le fait, pour les dirigeants d'une société par actions simplifiée, de procéder à une offre au public de titres financiers ou de faire admettre des actions aux négociations sur un marché réglementé.
Article L244-4
Les dispositions des articles L. 244-1, L. 244-2 et L. 244-3 sont applicables à toute personne qui, directement ou par personne interposée, aura en fait exercé la direction d'une société par actions simplifiée sous le couvert ou au lieu et place du président et des dirigeants de cette société.
Chapitre IV bis : Des infractions concernant les sociétés européennes
Article L244-5
Les articles L. 242-1 à L. 242-30 s'appliquent aux sociétés européennes.
Les peines prévues pour le président, les administrateurs, les directeurs généraux, les membres du directoire ou les membres du conseil de surveillance des sociétés anonymes sont applicables au président, aux administrateurs, aux directeurs généraux, aux membres du directoire ou aux membres du conseil de surveillance des sociétés européennes.
L'article L. 242-20 s'applique aux commissaires aux comptes des sociétés européennes.
Chapitre V : Des infractions relatives aux valeurs mobilières émises par les sociétés par actions
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Section 1 : Des infractions relatives aux actions.
Article L245-3
Sont punis d'un emprisonnement de six mois et d'une amende de 6 000 euros le président et les administrateurs, les directeurs généraux, les membres du directoire et du conseil de surveillance d'une société anonyme, les gérants d'une société en commandite par actions :
1° Dont la société procède à l'amortissement de son capital alors que la totalité des actions à dividende prioritaire sans droit de vote n'ont pas été intégralement rachetées et annulées ;
2° Dont la société, en cas de réduction du capital non motivée par des pertes et réalisée selon les modalités prévues à l'article L. 225-207, ne rachète pas, en vue de leur annulation, les actions à dividende prioritaire sans droit de vote avant les actions ordinaires.
Article L245-4
Le fait, pour le président et les administrateurs, les directeurs généraux, les membres du directoire et du conseil de surveillance d'une société anonyme, les gérants des sociétés en commandite par actions, de détenir, directement ou indirectement dans les conditions prévues par l'article L. 228-35-8, des actions à dividende prioritaire sans droit de vote de la société qu'ils dirigent est puni des peines prévues à l'article L. 245-3.
Article L245-5
Est puni d'un emprisonnement de six mois et d'une amende de 6 000 euros le fait, pour le liquidateur d'une société, de ne pas respecter les dispositions de l'article L. 237-30.
Section 3 : Des infractions relatives aux obligations
Article L245-9
Est puni d'une amende de 9 000 euros le fait, pour le président, les administrateurs, les directeurs généraux ou les gérants d'une société par actions d'émettre, pour le compte de cette société, des obligations négociables qui, dans une même émission, ne confèrent pas les mêmes droits de créance pour une même valeur nominale.
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Article L245-11
Est puni d'un emprisonnement de deux ans et d'une amende de 9000 euros le fait :
1° D'empêcher un obligataire de participer à une assemblée générale d'obligataires ;
2° De se faire accorder, garantir ou promettre des avantages particuliers pour voter dans un certain sens ou pour ne pas participer au vote, ainsi que le fait d'accorder, garantir ou promettre ces avantages particuliers.
Article L245-12
Est puni d'une amende de 6 000 euros le fait :
1° Pour le président, les administrateurs, les directeurs généraux, les gérants, les commissaires aux comptes, les membres du conseil de surveillance ou les employés de la société débitrice ou de la société garante de tout ou partie des engagements de la société débitrice ainsi que pour leurs ascendants, descendants ou conjoints de représenter des obligataires à leur assemblée générale, ou d'accepter d'être les représentants de la masse des obligataires ;
2° Pour le président, les administrateurs, les directeurs généraux ou les gérants de sociétés détenant au moins 10 % du capital des sociétés débitrices, de prendre part à l'assemblée générale des obligataires à raison des obligations détenues par ces sociétés.
Article L245-13
Est puni d'une amende de 4 500 euros le fait, pour le président de l'assemblée générale des obligataires, de ne pas procéder à la constatation des décisions de toute assemblée générale d'obligataires par procès-verbal, mentionnant la date et le lieu de la réunion, le mode de convocation, l'ordre du jour, la composition du bureau, le nombre d'obligataires participant au vote et le quorum atteint, les documents et rapports soumis à l'assemblée, un résumé des débats, le texte des résolutions mises aux voix et le résultat des votes.
Article L245-15
Les infractions prévues aux articles L. 245-9, et aux articles L. 245-12 et L. 245-13 sont punies de cinq ans d'emprisonnement et de 18 000 euros d'amende lorsqu'elles ont été commises frauduleusement en vue de priver les obligataires ou certains d'entre eux d'une part des droits attachés à leur titre de créance.
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Section 4 : Dispositions communes
Article L245-16
Les dispositions du présent chapitre visant le président, les administrateurs, les directeurs généraux et les gérants de sociétés par actions sont applicables à toute personne qui, directement ou par personne interposée, aura, en fait, exercé la direction, l'administration ou la gestion desdites sociétés sous le couvert ou au lieu et place de leurs représentants légaux.
Section 5 : Des infractions relatives aux sociétés anonymes comportant un directoire et un conseil de surveillance
Article L245-17
Les peines prévues par les articles L. 245-1 à L. 245-15 pour les présidents, les directeurs généraux et les administrateurs des sociétés anonymes sont applicables, selon leurs attributions respectives, aux membres du directoire et aux membres du conseil de surveillance des sociétés anonymes régies par les dispositions des articles L. 225-57 à L. 225-93.
Les dispositions de l'article L. 245-16 sont en outre applicables aux sociétés anonymes régies par les articles L. 225-57 à L. 225-93.
Chapitre VI : Des infractions communes aux diverses formes de sociétés par actions
Article L246-2
Les dispositions des articles L. 242-1 à L. 242-29, L. 243-1 et L. 244-5, visant le président, les administrateurs ou les directeurs généraux de sociétés anonymes ou de sociétés européennes et les gérants de sociétés en commandite par actions sont applicables à toute personne qui, directement ou par personne interposée, a, en fait, exercé la direction, l'administration ou la gestion desdites sociétés sous le couvert ou au lieu et place de leurs représentants légaux.
Chapitre VII : Des infractions communes aux diverses formes de
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sociétés commerciales
Section 1 : Des infractions relatives aux filiales, aux participations et aux sociétés contrôlées
Article L247-1
I. - Est puni d'un emprisonnement de deux ans et d'une amende de 9000 euros le fait, pour les présidents, les administrateurs, les directeurs généraux ou les gérants de toute société :
1° De ne pas faire mention dans le rapport annuel présenté aux associés sur les opérations de l'exercice, d'une prise de participation dans une société ayant son siège sur le territoire de la République française représentant plus du vingtième, du dixième, du cinquième, du tiers, de la moitié ou des deux tiers du capital ou des droits de vote aux assemblées générales de cette société ou de la prise de contrôle d'une telle société ;
2° De ne pas, dans le même rapport, rendre compte de l'activité et des résultats de l'ensemble de la société, des filiales de la société et des sociétés qu'elle contrôle par branche d'activité ;
3° De ne pas annexer au bilan de la société le tableau prévu à l'article L. 233-15 et comportant les renseignements en vue de faire apparaître la situation desdites filiales et participations.
II. - Est puni d'une amende de 9000 euros le fait, pour les membres du directoire, du conseil d'administration ou les gérants des sociétés visées à l'article L. 233-16, sous réserve des dérogations prévues à l'article L. 233-17, de ne pas établir et adresser aux actionnaires ou associés, dans les délais prévus par la loi, les comptes consolidés. Le tribunal peut en outre ordonner l'insertion du jugement, aux frais du condamné, dans un ou plusieurs journaux.
III. - Est puni des peines mentionnées au I le fait, pour le commissaire aux comptes, de ne pas faire figurer dans son rapport les mentions visées au 1° du I du présent article.
Article L247-2
I.-Est puni d'une amende de 18 000 euros le fait pour les présidents, les administrateurs, les membres du directoire, les gérants ou les directeurs généraux des personnes morales, ainsi que pour les personnes physiques de s'abstenir de remplir les obligations d'informations auxquelles cette personne est tenue, en application de l'article L. 233-7, du fait des participations qu'elle détient.
II.-Est puni de la même peine le fait, pour les présidents, les administrateurs, les membres du directoire, les gérants ou les directeurs généraux d'une société, de s'abstenir de procéder aux
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notifications auxquelles cette société est tenue, en application de l'article L. 233-12, du fait des participations qu'elle détient dans la société par actions qui la contrôle.
III.-Est puni de la même peine le fait, pour les présidents, les administrateurs, les membres du directoire, les gérants ou les directeurs généraux d'une société, d'omettre de faire mention dans le rapport présenté aux actionnaires sur les opérations de l'exercice de l'identité des personnes détenant des participations significatives dans cette société, des modifications intervenues au cours de l'exercice, du nom des sociétés contrôlées et de la part du capital de la société que ces sociétés détiennent, dans les conditions prévues par l'article L. 233-13.
IV.-Est puni de la même peine le fait, pour le commissaire aux comptes, d'omettre dans son rapport les mentions visées au III.
V. # Pour les sociétés dont les actions sont admises aux négociations sur un marché d'instruments financiers mentionné au II de l'article L. 233-7, les poursuites sont engagées après que l'avis de l'Autorité des marchés financiers a été demandé.
Article L247-3
Est puni d'une amende de 18 000 euros le fait, pour les présidents, les administrateurs, les membres du directoire, les directeurs généraux ou les gérants de sociétés, de contrevenir aux dispositions des articles L. 233-29 à L. 233-31.
Pour les sociétés dont les actions sont admises aux négociations sur un marché réglementé, les poursuites pour infraction aux dispositions de l'article L. 233-31 sont engagées après que l'avis de l'Autorité des marchés financiers a été demandé.
Section 2 : Des infractions relatives à la publicité
Article L247-4
Est puni d'une amende de 9 000 euros le fait, pour toute personne, de ne pas satisfaire aux obligations résultant de l'article L. 225-109 dans le délai et suivant les modalités fixées par décret en Conseil d'Etat.
Section 3 : Des infractions relatives à la liquidation
Article L247-5
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Est puni d'un emprisonnement de deux ans et d'une amende 9 000 euros le fait de contrevenir à l'interdiction d'exercer les fonctions de liquidateur.
Quiconque est condamné par application de l'alinéa précédent ne peut plus être employé, à quelque titre que ce soit, par la société dans laquelle il a exercé les fonctions prohibées. En cas d'infraction à cette interdiction, la personne condamnée et son employeur, si ce dernier en a eu connaissance, sont punis des peines prévues audit alinéa.
Article L247-6
Est puni d'un emprisonnement de six mois et d'une amende de 9 000 euros le fait, pour le liquidateur d'une société :
1° De ne pas publier dans le délai d'un mois de sa nomination, dans un journal d'annonces légales dans le département du siège social, l'acte le nommant liquidateur et déposer au registre du commerce et des sociétés les décisions prononçant la dissolution ;
2° De ne pas convoquer les associés, en fin de liquidation, pour statuer sur le compte définitif, sur le quitus de sa gestion et la décharge de son mandat, et pour constater la clôture de la liquidation, ou de ne pas, dans le cas prévu à l'article L. 237-10, déposer ses comptes au greffe du tribunal ni demander en justice l'approbation de ceux-ci.
Article L247-7
Est puni des peines prévues à l'article L. 247-6, au cas où la liquidation d'une société intervient conformément aux dispositions des articles L. 237-14 à L. 237-31, le fait, pour un liquidateur :
1° De ne pas présenter dans les six mois de sa nomination, un rapport sur la situation active et passive, sur la poursuite des opérations de liquidation, ni solliciter les autorisations nécessaires pour les terminer ;
2° De ne pas établir les comptes annuels au vu de l'inventaire et un rapport écrit dans lequel il rend compte des opérations de liquidation au cours de l'exercice écoulé, dans les trois mois de la clôture de chaque exercice ;
3° (supprimé) ;
4° et 5° : Paragraphes abrogés.
6° De ne pas déposer à un compte ouvert dans un établissement de crédit au nom de la société en liquidation, dans le délai de quinze jours à compter de la décision de répartition, les sommes affectées aux répartitions entre les associés et les créanciers, ou de ne pas déposer à la Caisse des dépôts et consignations, dans le délai d'un an à compter de la clôture de la liquidation, les sommes
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attribuées à des créanciers ou à des associés et non réclamées par eux.
Article L247-8
Est puni d'un emprisonnement de cinq ans et d'une amende de 9000 euros le fait, pour un liquidateur, de mauvaise foi :
1° De faire des biens ou du crédit de la société en liquidation, un usage qu'il sait contraire à l'intérêt de celle-ci, à des fins personnelles ou pour favoriser une autre société ou entreprise dans laquelle il est intéressé directement ou indirectement ;
2° De céder tout ou partie de l'actif de la société en liquidation contrairement aux dispositions des articles L. 237-6 et L. 237-7.
Section 4 : Des infractions relatives aux sociétés anonymes comportant un directoire et un conseil de surveillance
Article L247-9
Les peines prévues par les articles L. 247-1 à L. 247-4 pour les présidents, les directeurs généraux et les administrateurs de sociétés anonymes, sont applicables, selon leurs attributions respectives, aux membres du directoire et aux membres du conseil de surveillance des sociétés anonymes régies par les dispositions des articles L. 225-57 à L. 225-93.
Section 5 : Des infractions relatives aux sociétés à capital variable.
Article L247-10
Est puni d'une amende de 3 750 euros le fait, pour le président, le gérant ou, de façon générale, le dirigeant d'une société usant de la faculté prévue à l'article L. 231-1 de ne pas mentionner cette circonstance par l'addition des mots " à capital variable " sur tous actes et sur tous documents émanant de la société et destinés aux tiers.
Chapitre VIII : Dispositions concernant les directeurs généraux délégués des sociétés anonymes ou des sociétés européennes.
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Article L248-1
Les dispositions du présent titre visant les directeurs généraux des sociétés anonymes ou des sociétés européennes sont applicables, selon leurs attributions respectives, aux directeurs généraux délégués.
Chapitre IX : Peines complémentaires applicables aux personnes physiques
Article L249-1
Les personnes physiques coupables des infractions prévues aux chapitres Ier à VIII du présent titre encourent également à titre de peines complémentaires l'interdiction, suivant les modalités prévues par l'article 131-27 du code pénal, soit d'exercer une fonction publique ou d'exercer l'activité professionnelle ou sociale dans l'exercice ou à l'occasion de l'exercice de laquelle l'infraction a été commise, soit d'exercer une profession commerciale ou industrielle, de diriger, d'administrer, de gérer ou de contrôler à un titre quelconque, directement ou indirectement, pour leur propre compte ou pour le compte d'autrui, une entreprise commerciale ou industrielle ou une société commerciale. Ces interdictions d'exercice peuvent être prononcées cumulativement.
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Partie législative
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique
TITRE V : Des groupements d'intérêt économique
Chapitre Ier : Du groupement d'intérêt économique de droit français.
Article L251-1
Deux ou plusieurs personnes physiques ou morales peuvent constituer entre elles un groupement d'intérêt économique pour une durée déterminée.
Le but du groupement est de faciliter ou de développer l'activité économique de ses membres, d'améliorer ou d'accroître les résultats de cette activité. Il n'est pas de réaliser des bénéfices pour lui-même.
Son activité doit se rattacher à l'activité économique de ses membres et ne peut avoir qu'un caractère auxiliaire par rapport à celle-ci.
Article L251-2
Les personnes exerçant une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé peuvent constituer un groupement d'intérêt économique ou y participer.
Article L251-3
Le groupement d'intérêt économique peut être constitué sans capital.
Les droits de ses membres ne peuvent être représentés par des titres négociables. Toute clause contraire est réputée non écrite.
Article L251-4
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Le groupement d'intérêt économique jouit de la personnalité morale et de la pleine capacité à dater de son immatriculation au registre du commerce et des sociétés, sans que cette immatriculation emporte présomption de commercialité du groupement. Le groupement d'intérêt économique dont l'objet est commercial peut faire de manière habituelle et à titre principal tous actes de commerce pour son propre compte. Il peut être titulaire d'un bail commercial.
Les personnes qui ont agi au nom d'un groupement d'intérêt économique en formation avant qu'il ait acquis la jouissance de la personnalité morale sont tenues, solidairement et indéfiniment, des actes ainsi accomplis, à moins que le groupement, après avoir été régulièrement constitué et immatriculé, ne reprenne les engagements souscrits. Ces engagements sont alors réputés avoir été souscrits dès l'origine par le groupement.
Article L251-5
La nullité du groupement d'intérêt économique ainsi que des actes ou délibérations de celui-ci ne peut résulter que de la violation des dispositions impératives du présent chapitre, ou de l'une des causes de nullité des contrats en général.
L'action en nullité est éteinte lorsque la cause de la nullité a cessé d'exister le jour où le tribunal statue sur le fond en première instance, sauf si cette nullité est fondée sur l'illicéité de l'objet du groupement.
Les articles 1844-12 à 1844-17 du code civil sont applicables aux groupements d'intérêt économique.
Article L251-6
Les membres du groupement sont tenus des dettes de celui-ci sur leur patrimoine propre. Toutefois, un nouveau membre peut, si le contrat le permet, être exonéré des dettes nées antérieurement à son entrée dans le groupement. La décision d'exonération doit être publiée. Ils sont solidaires, sauf convention contraire avec le tiers cocontractant.
Les créanciers du groupement ne peuvent poursuivre le paiement des dettes contre un membre qu'après avoir vainement mis en demeure le groupement par acte extrajudiciaire.
Article L251-7
Le groupement d'intérêt économique peut émettre des obligations, aux conditions générales d'émission de ces titres par les sociétés, s'il est lui-même composé exclusivement de sociétés qui satisfont aux conditions prévues par le présent livre pour l'émission d'obligations.
Le groupement d'intérêt économique peut également émettre des obligations aux conditions
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générales d'émission de ces titres prévues par la loi n° 85-698 du 11 juillet 1985 autorisant l'émission de valeurs mobilières par certaines associations s'il est lui-même composé exclusivement d'associations qui satisfont aux conditions prévues par cette loi pour l'émission d'obligations.
Article L251-8
I. - Le contrat de groupement d'intérêt économique détermine l'organisation du groupement, sous réserve des dispositions du présent chapitre. Il est établi par écrit et publié selon les modalités fixées par décret en Conseil d'Etat.
II. - Le contrat contient notamment les indications suivantes :
1° La dénomination du groupement ;
2° Les nom, raison sociale ou dénomination sociale, la forme juridique, l'adresse du domicile ou du siège social et, s'il y a lieu, le numéro d'identification de chacun des membres du groupement, ainsi que, selon le cas, la ville où se situe le greffe où il est immatriculé ou la ville où se situe la chambre des métiers où il est inscrit ;
3° La durée pour laquelle le groupement est constitué ;
4° L'objet du groupement ;
5° L'adresse du siège du groupement.
III. - Toutes les modifications du contrat sont établies et publiées dans les mêmes conditions que le contrat lui-même. Elles ne sont opposables aux tiers qu'à dater de cette publicité.
Article L251-9
Le groupement, au cours de son existence, peut accepter de nouveaux membres dans les conditions fixées par le contrat constitutif.
Tout membre du groupement peut se retirer dans les conditions prévues par le contrat, sous réserve qu'il ait exécuté ses obligations.
Article L251-10
L'assemblée des membres du groupement est habilitée à prendre toute décision, y compris de dissolution anticipée ou de prorogation, dans les conditions déterminées par le contrat. Celui-ci peut prévoir que toutes les décisions ou certaines d'entre elles seront prises aux conditions de quorum et
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de majorité qu'il fixe. Dans le silence du contrat, les décisions sont prises à l'unanimité.
Le contrat peut aussi attribuer à chaque membre un nombre de voix différent de celui attribué aux autres. A défaut, chaque membre dispose d'une voix.
L'assemblée est obligatoirement réunie à la demande d'un quart au moins des membres du groupement.
Article L251-11
Le groupement est administré par une ou plusieurs personnes. Une personne morale peut être nommée administrateur du groupement sous réserve qu'elle désigne un représentant permanent, qui encourt les mêmes responsabilités civile et pénale que s'il était administrateur en son nom propre. Le ou les administrateurs du groupement, et le représentant permanent de la personne morale nommée administrateur sont responsables individuellement ou solidairement selon le cas, envers le groupement ou envers les tiers, des infractions aux dispositions législatives et réglementaires applicables aux groupements, de la violation des statuts du groupement, ainsi que de leurs fautes de gestion. Si plusieurs administrateurs ont coopéré aux mêmes faits, le tribunal détermine la part contributive de chacun dans la réparation du dommage. Sous cette réserve, le contrat de groupement ou, à défaut, l'assemblée des membres organise librement l'administration du groupement et nomme les administrateurs dont il détermine les attributions, les pouvoirs et les conditions de révocation.
Dans les rapports avec les tiers, un administrateur engage le groupement par tout acte entrant dans l'objet de celui-ci. Toute limitation de pouvoirs est inopposable aux tiers.
Article L251-12
Le contrôle de la gestion, qui doit être confié à des personnes physiques, et le contrôle des comptes sont exercés dans les conditions prévues par le contrat constitutif du groupement.
Toutefois, lorsqu'un groupement émet des obligations dans les conditions prévues à l'article L. 251-7, le contrôle de la gestion doit être exercé par une ou plusieurs personnes physiques nommées par l'assemblée. La durée de leurs fonctions et leurs pouvoirs sont déterminés dans le contrat.
Le contrôle des comptes dans les groupements visés à l'alinéa précédent et dans les groupements qui comptent cent salariés ou plus à la clôture d'un exercice doit être exercé par un ou plusieurs commissaires aux comptes choisis sur la liste visée à l'article L. 822-1 et nommés par l'assemblée pour une durée de six exercices. Les dispositions du présent code concernant les incompatibilités, les pouvoirs, les fonctions, les obligations, la responsabilité, la récusation, la révocation, la rémunération du commissaire aux comptes des sociétés anonymes ainsi que les sanctions prévues par l'article L. 242-27 sont applicables aux commissaires des groupements d'intérêt économique, sous réserve des règles propres à ceux-ci.
Dans les cas prévus aux deux alinéas précédents, les dispositions des articles L. 242-25, L. 242-26
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et. L. 242-28, L. 245-8 à L. 245-17 sont applicables aux dirigeants du groupement, aux personnes physiques dirigeants des sociétés membres ou représentants permanents des personnes morales dirigeants de ces sociétés.
Article L251-13
Dans les groupements qui répondent à l'un des critères définis à l'article L. 232-2, les administrateurs sont tenus d'établir une situation de l'actif réalisable et disponible, valeurs d'exploitation exclues, et du passif exigible, un compte de résultat prévisionnel, un tableau de financement en même temps que le bilan annuel et un plan de financement prévisionnel.
Un décret en Conseil d'Etat précise la périodicité, les délais et les modalités d'établissement de ces documents.
Article L251-14
Les documents visés à l'article L. 251-13 sont analysés dans des rapports écrits sur l'évolution du groupement établis par les administrateurs. Les documents et rapports sont communiqués au commissaire aux comptes et au comité d'entreprise.
En cas de non-observation des dispositions de l'article L. 251-13 et de l'alinéa précédent, ou si les informations données dans les rapports visés à l'alinéa précédent appellent des observations de sa part, le commissaire aux comptes le signale dans un rapport aux administrateurs ou dans le rapport annuel. Il peut demander que son rapport soit adressé aux membres du groupement ou qu'il en soit donné connaissance à l'assemblée de ceux-ci. Ce rapport est communiqué au comité d'entreprise.
Article L251-15
Lorsque le commissaire aux comptes relève, à l'occasion de l'exercice de sa mission, des faits de nature à compromettre la continuité de l'exploitation du groupement, il en informe les administrateurs, dans des conditions qui sont fixées par décret en Conseil d'Etat. Ceux-ci sont tenus de lui répondre sous quinze jours. La réponse est communiquée au comité d'entreprise. Le commissaire aux comptes en informe le président du tribunal.
En cas d'inobservation de ces dispositions, ou s'il constate qu'en dépit des décisions prises la continuité de l'exploitation demeure compromise, le commissaire aux comptes établit un rapport spécial et invite par écrit les administrateurs à faire délibérer la prochaine assemblée générale sur les faits relevés. Ce rapport est communiqué au comité d'entreprise.
Si, à l'issue de la réunion de l'assemblée générale, le commissaire aux comptes constate que les décisions prises ne permettent pas d'assurer la continuité de l'exploitation, il informe de ses démarches le président du tribunal et lui en communique les résultats.
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Article L251-16
Le comité d'entreprise ou, à défaut, les délégués du personnel exercent dans les groupements d'intérêt économique, les attributions prévues aux articles L. 422-4 et L. 432-5 du code du travail.
Les administrateurs communiquent au commissaire aux comptes les demandes d'explication formées par le comité d'entreprise ou les délégués du personnel, les rapports qui leur sont adressés et les réponses qu'ils ont faites en application des articles L. 422-4 et L. 432-5 du code du travail.
Article L251-17
Les actes et documents émanant du groupement et destinés aux tiers, notamment les lettres, factures, annonces et publications diverses, doivent indiquer lisiblement la dénomination du groupement suivie des mots : "groupement d'intérêt économique" ou du sigle :
"GIE".
Toute infraction aux dispositions de l'alinéa ci-dessus est punie d'une amende de 3 750 euros.
Article L251-18
Toute société ou association dont l'objet correspond à la définition du groupement d'intérêt économique peut être transformée en un tel groupement sans donner lieu à dissolution ni à création d'une personne morale nouvelle.
Un groupement d'intérêt économique peut être transformé en société en nom collectif sans donner lieu à dissolution ni à création d'une personne morale nouvelle.
Article L251-19
Le groupement d'intérêt économique est dissous :
1° Par l'arrivée du terme ;
2° Par la réalisation ou l'extinction de son objet ;
3° Par la décision de ses membres dans les conditions prévues à l'article L. 251-10 ;
4° Par décision judiciaire, pour de justes motifs ;
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5° Par le décès d'une personne physique ou par la dissolution d'une personne morale, membre du groupement, sauf stipulation contraire du contrat.
Article L251-20
Si l'un des membres est frappé d'incapacité, de faillite personnelle ou de l'interdiction de diriger, gérer, administrer ou contrôler une entreprise commerciale, quelle qu'en soit la forme, ou une personne morale de droit privé non commerçante, le groupement est dissous, à moins que sa continuation ne soit prévue par le contrat ou que les autres membres ne la décident à l'unanimité.
Article L251-21
La dissolution du groupement d'intérêt économique entraîne sa liquidation. La personnalité du groupement subsiste pour les besoins de la liquidation.
Article L251-22
La liquidation s'opère conformément aux dispositions du contrat. A défaut, un liquidateur est nommé par l'assemblée des membres du groupement ou, si l'assemblée n'a pu procéder à cette nomination, par décision de justice.
Après paiement des dettes, l'excédent d'actif est réparti entre les membres dans les conditions prévues par le contrat. A défaut, la répartition est faite par parts égales.
Article L251-23
L'appellation "groupement d'intérêt économique" et le sigle "GIE" ne peuvent être utilisés que par les groupements soumis aux dispositions du présent chapitre. L'emploi illicite de cette appellation, de ce sigle ou de toute expression de nature à prêter à confusion avec ceux-ci est puni d'un emprisonnement d'un an et d'une amende de 6 000 euros.
Le tribunal peut, en outre, ordonner la publication du jugement, aux frais du condamné, dans trois journaux au maximum et son affichage dans les conditions prévues à l'article 131-35 du code pénal.
Chapitre II : Du groupement européen d'intérêt économique.
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Article L252-1
Les groupements européens d'intérêt économique immatriculés en France au registre du commerce et des sociétés ont la personnalité juridique dès leur immatriculation.
Article L252-2
Les groupements européens d'intérêt économique ont un caractère civil ou commercial selon leur objet. L'immatriculation n'emporte pas présomption de commercialité d'un groupement.
Article L252-3
Les droits des membres du groupement ne peuvent être représentés par des titres négociables.
Article L252-4
Les décisions collégiales du groupement européen d'intérêt économique sont prises par l'assemblée des membres du groupement. Toutefois, les statuts peuvent stipuler que ces décisions, ou certaines d'entre elles, peuvent être prises sous forme de consultation écrite.
Article L252-5
Le ou les gérants d'un groupement européen d'intérêt économique sont responsables, individuellement ou solidairement selon le cas, envers le groupement ou envers les tiers, soit des infractions aux dispositions législatives ou réglementaires applicables au groupement, soit des violations des statuts, soit de leurs fautes de gestion. Si plusieurs gérants ont coopéré aux mêmes faits, le tribunal détermine la part contributive de chacun dans la réparation du dommage.
Article L252-6
Une personne morale peut être nommée gérant d'un groupement européen d'intérêt économique. Lors de sa nomination, elle est tenue de désigner un représentant permanent qui encourt les mêmes responsabilités civile et pénale que s'il était gérant en son nom propre, sans préjudice de la responsabilité solidaire de la personne morale qu'il représente.
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Article L252-7
Les dispositions du chapitre précédent applicables aux groupements d'intérêt économique de droit français relatives aux obligations comptables, au contrôle des comptes et à la liquidation sont applicables aux groupements européens d'intérêt économique.
Article L252-8
Toute société ou association, tout groupement d'intérêt économique peut être transformé en un groupement européen d'intérêt économique sans donner lieu à dissolution ni à création d'une personne morale nouvelle.
Un groupement européen d'intérêt économique peut être transformé en un groupement d'intérêt économique de droit français ou une société en nom collectif, sans donner lieu à dissolution ni à création d'une personne morale nouvelle.
Article L252-9
La nullité du groupement européen d'intérêt économique ainsi que des actes ou délibérations de celui-ci ne peut résulter que de la violation des dispositions impératives du règlement n° 2137-85 du 25 juillet 1985 du Conseil des Communautés européennes, ou des dispositions du présent chapitre ou de l'une des causes de nullité des contrats en général.
L'action en nullité est éteinte lorsque la cause de la nullité a cessé d'exister le jour où le tribunal statue sur le fond en première instance, sauf si cette nullité est fondée sur l'illicéité de l'objet du groupement.
Il est fait application des articles 1844-12 à 1844-17 du code civil.
Article L252-10
Les groupements européens d'intérêt économique ne peuvent, à peine de nullité des contrats conclus ou des titres émis, procéder à une offre au public de titres financiers
Est puni d'un emprisonnement de deux ans et d'une amende de 300 000 euros le fait, pour le ou les gérants d'un groupement européen d'intérêt économique ou le représentant permanent d'une personne morale gérant d'un groupement européen d'intérêt économique de procéder à une offre au public de titres financiers
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Article L252-11
L'utilisation dans les rapports avec les tiers de tous actes, lettres, notes et documents similaires ne comportant pas les mentions prescrites par l'article 25 du règlement n° 2137-85 du 25 juillet 1985 du Conseil des Communautés européennes est punie des peines prévues à l'article L. 251-17.
Article L252-12
L'appellation "groupement européen d'intérêt économique" et le sigle "GEIE" ne peuvent être utilisés que par les groupements soumis aux dispositions du règlement n° 2137-85 du 25 juillet 1985 du Conseil des Communautés européennes. L'emploi illicite de cette appellation ou de ce sigle ou de toute expression de nature à prêter à confusion avec ceux-ci est puni des peines prévues à l'article L. 251-23.
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Partie législative
LIVRE III : De certaines formes de ventes et des clauses d'exclusivité.
TITRE Ier : Des liquidations, des ventes au déballage, des soldes et des ventes en magasins d'usine.
Article L310-1
Sont considérées comme liquidations les ventes accompagnées ou précédées de publicité et annoncées comme tendant, par une réduction de prix, à l'écoulement accéléré de la totalité ou d'une partie des marchandises d'un établissement commercial à la suite d'une décision, quelle qu'en soit la cause, de cessation, de suspension saisonnière ou de changement d'activité, ou de modification substantielle des conditions d'exploitation.
Les liquidations sont soumises à déclaration préalable auprès de l'autorité administrative dont relève le lieu de la liquidation. Cette déclaration comporte la cause et la durée de la liquidation qui ne peut excéder deux mois. Elle est accompagnée d'un inventaire des marchandises à liquider. Lorsque l'événement motivant la liquidation n'est pas intervenu au plus tard dans les six mois qui suivent la déclaration, le déclarant est tenu d'en informer l'autorité administrative compétente.
Pendant la durée de la liquidation, il est interdit de proposer à la vente d'autres marchandises que celles figurant à l'inventaire sur le fondement duquel la déclaration préalable a été déposée.
Article L310-2
I.-Sont considérées comme ventes au déballage les ventes de marchandises effectuées dans des locaux ou sur des emplacements non destinés à la vente au public de ces marchandises, ainsi qu'à partir de véhicules spécialement aménagés à cet effet. Les ventes au déballage ne peuvent excéder deux mois par année civile dans un même local ou sur un même emplacement. Elles font l'objet d'une déclaration préalable auprès du maire de la commune dont dépend le lieu de la vente. Les particuliers non inscrits au registre du commerce et des sociétés sont autorisés à participer aux ventes au déballage en vue de vendre exclusivement des objets personnels et usagés deux fois par an au plus.
II.-Les dispositions du I ne sont pas applicables aux professionnels :
1° Effectuant, dans une ou plusieurs communes, des tournées de ventes définies par le 1° de l'article L. 121-22 du code de la consommation ;
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2° Réalisant des ventes définies par l'article L. 320-2 ;
3° Qui justifient d'une permission de voirie ou d'un permis de stationnement pour les ventes réalisées sur la voie publique.
III.-Les dispositions du I ne sont pas applicables aux organisateurs de :
1° Manifestations commerciales comportant des ventes de marchandises au public dans un parc d'exposition ;
2° Manifestations commerciales qualifiées de salon professionnel ne se tenant pas dans un parc d'exposition ;
3° Fêtes foraines et de manifestations agricoles lorsque seuls des producteurs ou des éleveurs y sont exposants.
Article L310-3
I. - Sont considérées comme soldes les ventes qui, d'une part, sont accompagnées ou précédées de publicité et sont annoncées comme tendant, par une réduction de prix, à l'écoulement accéléré de marchandises en stock et qui, d'autre part, ont lieu durant les périodes définies, pour l'année civile, comme suit :
1° Deux périodes d'une durée de cinq semaines chacune, dont les dates et heures de début sont fixées par décret ; ce décret peut prévoir, pour ces deux périodes, des dates différentes dans les départements qu'il fixe pour tenir compte d'une forte saisonnalité des ventes, ou d'opérations commerciales menées dans des régions frontalières ;
2° Une période d'une durée maximale de deux semaines ou deux périodes d'une durée maximale d'une semaine, dont les dates sont librement choisies par le commerçant ; ces périodes complémentaires s'achèvent toutefois au plus tard un mois avant le début des périodes visées au 1° ; elles sont soumises à déclaration préalable auprès de l'autorité administrative compétente du département du lieu des soldes ou du département du siège de l'entreprise pour les entreprises de vente à distance. Les produits annoncés comme soldés doivent avoir été proposés à la vente et payés depuis au moins un mois à la date de début de la période de soldes considérée.
II. - Dans toute publicité, enseigne, dénomination sociale ou nom commercial, l'emploi du mot : solde(s) ou de ses dérivés est interdit pour désigner toute activité, dénomination sociale ou nom commercial, enseigne ou qualité qui ne se rapporte pas à une opération de soldes telle que définie au I ci-dessus.
Article L310-4
La dénomination de magasin ou de dépôt d'usine ne peut être utilisée que par les producteurs vendant directement au public la partie de leur production non écoulée dans le circuit de distribution
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ou faisant l'objet de retour. Ces ventes directes concernent exclusivement les productions de la saison antérieure de commercialisation, justifiant ainsi une vente à prix minoré.
Article L310-5
Est puni d'une amende de 15 000 euros :
1° Le fait de procéder à une liquidation sans la déclaration préalable mentionnée à l'article L. 310-1 ou en méconnaissance des conditions prévues à cet article ;
2° Le fait de procéder à une vente au déballage sans la déclaration prévue par l'article L. 310-2 ou en méconnaissance de cette déclaration ;
3° Le fait de réaliser des soldes portant sur des marchandises détenues depuis moins d'un mois à la date de début de la période de soldes considérée ;
4° Le fait d'utiliser le mot : solde (s) ou ses dérivés dans les cas où cette utilisation ne se rapporte pas à une opération de soldes définie au I de l'article L. 310-3 ;
5° Le fait d'utiliser la dénomination magasin d'usine ou dépôt d'usine en méconnaissance des dispositions de l'article L. 310-4 ;
5° bis Le fait, pour un parc d'exposition, de ne pas se faire enregistrer ou de ne pas déclarer de programme de manifestations commerciales en application du second alinéa de l'article L. 762-1, ou de ne pas déclarer les modifications au programme faisant l'objet de la déclaration annuelle initiale ;
6° Le fait d'organiser une manifestation commerciale sans la déclaration prévue au second alinéa de l'article L. 762-2 ou de ne pas respecter les conditions de réalisation de la manifestation déclarée.
Les personnes physiques encourent également la peine complémentaire d'affichage ou de diffusion de la décision prononcée, dans les conditions prévues par l'article 131-35 du code pénal.
Article L310-6
Les personnes morales déclarées responsables pénalement, dans les conditions prévues par l'article 121-2 du code pénal, des infractions définies à l'article L. 310-5 du présent code encourent, outre l'amende suivant les modalités prévues par l'article 131-38 du code pénal, la peine prévue par le 9° de l'article 131-39 du même code.
Article L310-7
Les modalités d'application des dispositions du présent titre sont fixées par décret en Conseil d'Etat, et notamment les secteurs dans lesquels les annonces, quel qu'en soit le support, de réduction de prix aux consommateurs ne peuvent s'exprimer en pourcentage ou par la mention du prix antérieurement pratiqué, et la durée ou les conditions de cette interdiction.
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Partie législative
LIVRE III : De certaines formes de ventes et des clauses d'exclusivité.
TITRE II : Des ventes aux enchères publiques.
Article L320-1
Nul ne peut faire des enchères publiques un procédé habituel de l'exercice de son commerce.
Article L320-2
Sont exceptées de l'interdiction prévue à l'article L. 320-1 les ventes prescrites par la loi ou faites par autorité de justice, ainsi que les ventes après décès, liquidation judiciaire ou cessation de commerce ou dans tous les autres cas de nécessité dont l'appréciation est soumise au tribunal de commerce.
Sont également exceptées les ventes à cri public de comestibles et d'objets de peu de valeur connus dans le commerce sous le nom de menue mercerie.
Chapitre Ier : Des ventes volontaires de meubles aux enchères publiques.
Section 1 : Dispositions générales.
Article L321-1
Les ventes volontaires de meubles aux enchères publiques ne peuvent porter que sur des biens d'occasion ou sur des biens neufs issus directement de la production du vendeur si celui-ci n'est ni commerçant ni artisan. Ces biens sont vendus au détail ou par lot.
Sont considérés comme meubles par le présent chapitre les meubles par nature.
Sont considérés comme d'occasion les biens qui, à un stade quelconque de la production ou de la
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distribution, sont entrés en la possession d'une personne pour son usage propre, par l'effet de tout acte à titre onéreux ou à titre gratuit.
Article L321-2
Les ventes volontaires de meubles aux enchères publiques sont, sauf les cas prévus à l'article L. 321-36 organisées et réalisées par des sociétés de forme commerciale régies par le livre II, et dont l'activité est réglementée par les dispositions du présent chapitre.
Ces ventes peuvent également être organisées et réalisées à titre accessoire par les notaires et les huissiers de justice dans les communes où il n'est pas établi d'office de commissaire-priseur judiciaire. Cette activité est exercée dans le cadre de leur office et selon les règles qui leur sont applicables. Ils ne peuvent être mandatés que par le propriétaire des biens.
Article L321-3
Le fait de proposer, en agissant comme mandataire du propriétaire, un bien aux enchères publiques à distance par voie électronique pour l'adjuger au mieux-disant des enchérisseurs constitue une vente aux enchères publiques au sens du présent chapitre.
Les opérations de courtage aux enchères réalisées à distance par voie électronique, se caractérisant par l'absence d'adjudication et d'intervention d'un tiers dans la conclusion de la vente d'un bien entre les parties, ne constituent pas une vente aux enchères publiques.
Sont également soumises aux dispositions du présent chapitre, à l'exclusion des articles L. 321-7 et L. 321-16 les opérations de courtage aux enchères portant sur des biens culturels réalisées à distance par voie électronique.
Sous-section 1 : Les sociétés de ventes volontaires de meubles aux enchères publiques.
Article L321-4
L'objet des sociétés de ventes volontaires de meubles aux enchères publiques est limité à l'estimation de biens mobiliers, à l'organisation et à la réalisation de ventes volontaires de meubles aux enchères publiques dans les conditions fixées par le présent chapitre.
Les sociétés de ventes volontaires de meubles aux enchères publiques agissent comme mandataires du propriétaire du bien. Elles ne sont pas habilitées à acheter ou à vendre directement ou indirectement pour leur propre compte des biens meubles proposés à la vente aux enchères publiques. Cette interdiction s'applique également aux dirigeants, associés et salariés de la société.
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A titre exceptionnel, ceux-ci peuvent cependant vendre, par l'intermédiaire de la société, des biens leur appartenant à condition qu'il en soit fait mention dans la publicité.
Article L321-5
Les sociétés de ventes volontaires de meubles aux enchères publiques ne peuvent exercer leur activité qu'après avoir obtenu l'agrément du Conseil des ventes volontaires de meubles aux enchères publiques institué à l'article L. 321-18.
Elles doivent présenter des garanties suffisantes en ce qui concerne leur organisation, leurs moyens techniques et financiers, l'honorabilité et l'expérience de leurs dirigeants ainsi que les dispositions propres à assurer pour leurs clients la sécurité des opérations.
Article L321-6
Les sociétés de ventes volontaires de meubles aux enchères publiques doivent, quelle que soit leur forme, désigner un commissaire aux comptes et un commissaire aux comptes suppléant.
Elles doivent justifier :
1° De l'existence dans un établissement de crédit d'un compte destiné exclusivement à recevoir les fonds détenus pour le compte d'autrui ;
2° D'une assurance couvrant leur responsabilité professionnelle ;
3° D'une assurance ou d'un cautionnement garantissant la représentation des fonds mentionnés au 1°.
Article L321-7
Les sociétés de ventes volontaires de meubles aux enchères publiques donnent au Conseil des ventes volontaires de meubles aux enchères publiques toutes précisions utiles sur les locaux où auront lieu de manière habituelle les expositions de meubles offerts à la vente ainsi que les opérations de ventes aux enchères publiques. Lorsque l'exposition ou la vente a lieu dans un autre local, ou à distance par voie électronique, la société en avise préalablement le conseil.
Article L321-8
Les sociétés de ventes volontaires de meubles aux enchères publiques doivent comprendre parmi leurs dirigeants, leurs associés ou leurs salariés au moins une personne ayant la qualification requise
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pour diriger une vente ou titulaire d'un titre, d'un diplôme ou d'une habilitation reconnus équivalents en la matière, dans des conditions définies par décret en Conseil d'Etat.
Article L321-9
Les personnes mentionnées à l'article L. 321-8 sont seules habilitées à diriger la vente, à désigner le dernier enchérisseur comme adjudicataire ou à déclarer le bien non adjugé et à dresser le procès-verbal de cette vente.
Le procès-verbal est arrêté au plus tard un jour franc après clôture de la vente. Il mentionne les nom et adresse du nouveau propriétaire déclarés par l'adjudicataire, l'identité du vendeur, la désignation de l'objet ainsi que son prix constaté publiquement.
Dans le délai de quinze jours à compter de la vente, le vendeur peut, par l'intermédiaire de la société, vendre de gré à gré les biens déclarés non adjugés à l'issue des enchères. Cette transaction n'est précédée d'aucune exposition ni publicité. Elle ne peut être faite à un prix inférieur à la dernière enchère portée avant le retrait du bien de la vente ou, en l'absence d'enchères, au montant de la mise à prix. Le dernier enchérisseur est préalablement informé s'il est connu. Elle fait l'objet d'un acte annexé au procès-verbal de la vente.
Article L321-10
Les sociétés de ventes volontaires de meubles aux enchères publiques tiennent jour par jour un registre en application des articles 321-7 et 321-8 du code pénal ainsi qu'un répertoire sur lequel elles inscrivent leurs procès-verbaux.
Article L321-11
Chaque vente volontaire de meubles aux enchères publiques donne lieu à une publicité sous toute forme appropriée.
Le prix de réserve est le prix minimal arrêté avec le vendeur au-dessous duquel le bien ne peut être vendu. Si le bien a été estimé, ce prix ne peut être fixé à un montant supérieur à l'estimation la plus basse figurant dans la publicité, ou annoncée publiquement par la personne qui procède à la vente et consignée au procès-verbal.
Article L321-12
Une société de ventes volontaires de meubles aux enchères publiques peut garantir au vendeur un prix d'adjudication minimal du bien proposé à la vente, qui est versé en cas d'adjudication du bien.
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Si le bien a été estimé, ce prix ne peut être fixé à un montant supérieur à l'estimation mentionnée à l'article L. 321-11.
Cette faculté n'est offerte qu'à la société qui a passé avec un organisme d'assurance ou un établissement de crédit un contrat aux termes duquel cet organisme ou cet établissement s'engage, en cas de défaillance de la société, à rembourser la différence entre le montant garanti et le prix d'adjudication si le montant du prix garanti n'est pas atteint lors de la vente aux enchères.
Article L321-13
Une société de ventes volontaires de meubles aux enchères publiques peut consentir au vendeur une avance sur le prix d'adjudication du bien proposé à la vente.
Article L321-14
Les sociétés de ventes volontaires de meubles aux enchères publiques sont responsables à l'égard du vendeur et de l'acheteur de la représentation du prix et de la délivrance des biens dont elles ont effectué la vente. Toute clause qui vise à écarter ou à limiter leur responsabilité est réputée non écrite.
Le bien adjugé ne peut être délivré à l'acheteur que lorsque la société en a perçu le prix ou lorsque toute garantie lui a été donnée sur le paiement du prix par l'acquéreur.
A défaut de paiement par l'adjudicataire, après mise en demeure restée infructueuse, le bien est remis en vente à la demande du vendeur sur folle enchère de l'adjudicataire défaillant ; si le vendeur ne formule pas cette demande dans un délai d'un mois à compter de l'adjudication, la vente est résolue de plein droit, sans préjudice de dommages et intérêts dus par l'adjudicataire défaillant.
Les fonds détenus pour le compte du vendeur doivent être versés à celui-ci au plus tard deux mois à compter de la vente.
Article L321-15
Est puni de deux ans d'emprisonnement et de 375 000 euros d'amende le fait de procéder ou de faire procéder à une ou plusieurs ventes volontaires de meubles aux enchères publiques :
1° Si la société qui organise la vente ne dispose pas de l'agrément prévu à l'article L. 321-5 soit qu'elle n'en est pas titulaire, soit que son agrément a été suspendu ou retiré à titre temporaire ou définitif ;
2° Ou si le ressortissant d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen qui organise la vente n'a pas procédé à la déclaration prévue à l'article L. 321-24 ;
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3° Ou si la personne qui dirige la vente ne remplit pas les conditions prévues à l'article L. 321-8 ou est frappée d'une interdiction à titre temporaire ou définitif de diriger de telles ventes.
II.-Les personnes physiques coupables de l'une des infractions aux dispositions prévues au présent article encourent également les peines complémentaires suivantes :
1° L'interdiction, pour une durée de cinq ans au plus, d'exercer une fonction publique ou d'exercer l'activité professionnelle ou sociale dans l'exercice ou à l'occasion de l'exercice de laquelle l'infraction a été commise ;
2° L'affichage ou la diffusion de la condamnation prononcée dans les conditions prévues par l'article 131-35 du code pénal ;
3° La confiscation des sommes ou objets irrégulièrement reçus par l'auteur de l'infraction, à l'exception des objets susceptibles de restitution.
III.-Les personnes morales déclarées responsables pénalement, dans les conditions prévues par l'article 121-2 du code pénal, des infractions définies par le présent article encourent, outre l'amende suivant les modalités prévues par l'article 131-38 du code pénal, pour une durée de cinq ans au plus, les peines mentionnées aux 1° à 4°, 8° et 9° de l'article 131-39 du même code.L'interdiction mentionnée au 2° de l'article 131-39 du même code porte sur l'activité dans l'exercice ou à l'occasion de l'exercice de laquelle l'infraction a été commise.
Article L321-16
Les dispositions de l'article L. 720-5 ne sont pas applicables aux locaux utilisés par les sociétés mentionnées à l'article L. 321-2.
Article L321-17
Les sociétés de ventes volontaires de meubles aux enchères publiques et les officiers publics ou ministériels compétents pour procéder aux ventes judiciaires et volontaires ainsi que les experts qui procèdent à l'estimation des biens engagent leur responsabilité au cours ou à l'occasion des ventes de meubles aux enchères publiques, conformément aux règles applicables à ces ventes.
Les clauses qui visent à écarter ou à limiter leur responsabilité sont interdites et réputées non écrites.
Les actions en responsabilité civile engagées à l'occasion des prisées et des ventes volontaires et judiciaires de meuble aux enchères publiques se prescrivent par cinq ans à compter de l'adjudication ou de la prisée.
Sous-section 2 : Le Conseil des ventes volontaires de meubles aux enchères publiques.
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Article L321-18
Il est institué un Conseil de ventes volontaires de meubles aux enchères publiques, doté de la personnalité morale.
Le Conseil des ventes volontaires de meubles aux enchères publiques est chargé :
1° D'agréer les sociétés de ventes volontaires de meubles aux enchères publiques ainsi que les experts visés à la section 3 ;
2° D'enregistrer les déclarations des ressortissants des Etats mentionnés à la section 2 ;
3° De sanctionner, dans les conditions prévues à l'article L. 321-22 les manquements aux lois, règlements et obligations professionnelles applicables aux sociétés de ventes volontaires de meubles aux enchères publiques, aux experts agréés et aux ressortissants d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen exerçant à titre occasionnel l'activité de ventes volontaires de meubles aux enchères publiques en France ;
4° De collaborer avec les autorités compétentes des autres Etats membres de la Communauté européenne ou parties à l'accord sur l'Espace économique européen afin de faciliter l'application de la directive 2005 / 36 / CE du Parlement européen et du Conseil du 7 septembre 2005 relative à la reconnaissance des qualifications professionnelles ;
5° De vérifier le respect par les sociétés de ventes volontaires de meubles aux enchères publiques de leurs obligations prévues par le chapitre Ier du titre VI du livre V du code monétaire et financier en matière de lutte contre le blanchiment de capitaux et le financement du terrorisme en se faisant communiquer, dans des conditions fixées par décret pris en Conseil d'Etat, les documents relatifs au respect de ces obligations.
La décision du Conseil des ventes volontaires de meubles aux enchères publiques qui refuse ou retire l'agrément d'une société ou d'un expert doit être motivée.
Article L321-19
Le Conseil des ventes volontaires de meubles aux enchères publiques et la Chambre nationale des commissaires-priseurs judiciaires assurent conjointement l'organisation de la formation professionnelle en vue de l'obtention de la qualification requise pour diriger les ventes.
Article L321-20
Le Conseil des ventes volontaires de meubles aux enchères publiques informe la chambre nationale et les chambres des commissaires-priseurs judiciaires, ainsi que les chambres départementales des huissiers de justice et des notaires, des faits commis dans le ressort de celles-ci qui ont été portés à sa connaissance et qui porteraient atteinte à la réglementation des ventes volontaires de meubles aux enchères publiques.
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Les chambres départementales des huissiers de justice et des notaires, la chambre nationale et les chambres des commissaires-priseurs judiciaires procèdent à la même information envers le Conseil des ventes volontaires de meubles aux enchères publiques.
Article L321-21
Le Conseil des ventes volontaires de meubles aux enchères publiques comprend onze membres nommés pour quatre ans par le garde des sceaux, ministre de la justice :
1° Six personnes qualifiées ;
2° Cinq représentants des professionnels, dont un expert.
Le mandat des membres du conseil n'est renouvelable qu'une seule fois.
Le président est élu par les membres du conseil en leur sein.
Des suppléants sont désignés en nombre égal et dans les mêmes formes.
Un magistrat du parquet est désigné pour exercer les fonctions de commissaire du Gouvernement auprès du Conseil des ventes volontaires de meubles aux enchères publiques.
Le financement du conseil est assuré par le versement de cotisations professionnelles acquittées par les sociétés de ventes volontaires de meubles aux enchères publiques et par les experts agréés. Le montant de ces cotisations est fixé par le conseil en fonction de l'activité des assujettis.
Article L321-22
Tout manquement aux lois, règlements ou obligations professionnelles applicables aux sociétés de ventes volontaires de meubles aux enchères publiques, aux experts agréés et aux personnes habilitées à diriger les ventes en vertu du premier alinéa de l'article L. 321-9 peut donner lieu à sanction disciplinaire. La prescription est de trois ans à compter du manquement.
Le conseil statue par décision motivée. Aucune sanction ne peut être prononcée sans que les griefs aient été communiqués au représentant légal de la société, à l'expert ou à la personne habilitée à diriger les ventes, que celui-ci ait été mis à même de prendre connaissance du dossier et qu'il ait été entendu ou dûment appelé.
Les sanctions applicables aux sociétés de ventes volontaires de meubles aux enchères publiques, aux experts agréés et aux personnes habilitées à diriger les ventes, compte tenu de la gravité des faits reprochés, sont : l'avertissement, le blâme, l'interdiction d'exercice de tout ou partie de l'activité
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à titre temporaire pour une durée qui ne peut excéder trois ans et le retrait de l'agrément de la société ou de l'expert ou l'interdiction définitive de diriger des ventes.
En cas d'urgence et à titre conservatoire, le président du conseil peut prononcer la suspension provisoire de l'exercice de tout ou partie de l'activité d'une société de ventes volontaires de meubles aux enchères publiques, d'un expert agréé ou d'une personne habilitée à diriger les ventes, pour une durée qui ne peut excéder un mois, sauf prolongation décidée par le conseil pour une durée qui ne peut excéder trois mois. Il en informe sans délai le conseil.
Article L321-23
Les décisions du Conseil des ventes volontaires de meubles aux enchères publiques et de son président peuvent faire l'objet d'un recours devant la cour d'appel de Paris. Le recours peut être porté devant le premier président de ladite cour statuant en référé.
Section 2 : Libre prestation de services de l'activité de ventes volontaires de meubles aux enchères publiques par les ressortissants des Etats membres de la Communauté européenne et des Etats parties à l'accord sur l'Espace économique européen.
Article L321-24
Les ressortissants d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen qui exercent à titre permanent l'activité de ventes volontaires de meubles aux enchères publiques dans l'un de ces Etats autres que la France peuvent accomplir, en France, cette activité professionnelle à titre occasionnel. Cette activité ne peut être accomplie qu'après déclaration faite au Conseil des ventes volontaires de meubles aux enchères publiques. La déclaration est faite au moins un mois avant la date de la première vente réalisée en France. Cette déclaration est renouvelée une fois par an si le prestataire envisage d'exercer son activité professionnelle de façon occasionnelle au cours de l'année concernée ou en cas de changement matériel relatif à sa situation professionnelle.
Article L321-25
Les personnes exerçant l'activité de ventes volontaires de meubles aux enchères publiques à titre permanent dans leur pays d'origine font usage, en France, de leur qualité exprimée dans la ou l'une des langues de l'Etat où elles sont établies, accompagnée d'une traduction en français, ainsi que, s'il y a lieu, du nom de l'organisme professionnel dont elles relèvent.
Article L321-26
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Pour pouvoir exercer l'activité de ventes volontaires de meubles aux enchères publiques à titre temporaire et occasionnel, le ressortissant d'un Etat membre de la Communauté européenne ou d'un autre Etat partie à l'accord sur l'Espace économique européen doit justifier dans la déclaration mentionnée à l'article L. 321-24 qu'il est légalement établi dans l'un de ces Etats et qu'il n'encourt aucune interdiction même temporaire d'exercer. Toutefois, lorsque cette activité ou la formation y conduisant n'est pas réglementée dans son Etat d'établissement, le prestataire doit justifier y avoir exercé cette activité pendant au moins deux ans au cours des dix années qui précèdent la prestation.S'il s'agit d'une personne morale, elle doit justifier dans la déclaration qu'elle comprend parmi ses dirigeants, ses associés ou ses salariés une personne remplissant ces conditions.
Article L321-27
Les ressortissants d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen sont tenus de respecter les règles régissant l'activité de ventes volontaires de meubles aux enchères publiques prévues par le présent chapitre sans préjudice des obligations non contraires qui leur incombent dans l'Etat dans lequel ils sont établis.
Article L321-28
En cas de manquement aux dispositions du présent chapitre, les ressortissants des Etats membres de la Communauté européenne et des Etats parties à l'accord sur l'Espace économique européen sont soumis aux dispositions de l'article L. 321-22. Toutefois, les sanctions de l'interdiction temporaire de l'exercice de l'activité et du retrait de l'agrément sont remplacées par les sanctions de l'interdiction temporaire ou définitive d'exercer en France l'activité de ventes volontaires de meubles aux enchères publiques.
En cas de sanction, le Conseil des ventes volontaires de meubles aux enchères publiques en avise l'autorité compétente de l'Etat d'origine.
Section 3 : Des experts agréés par le Conseil des ventes volontaires de meubles aux enchères publiques.
Article L321-29
Les experts auxquels peuvent avoir recours les sociétés de ventes volontaires de meubles aux enchères publiques, les huissiers de justice, les notaires et les commissaires-priseurs judiciaires peuvent être agréés par le Conseil des ventes volontaires de meubles aux enchères publiques.
Le conseil établit une liste des experts agréés dans chaque spécialité.
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Article L321-30
Tout expert agréé doit être inscrit dans l'une des spécialités dont la nomenclature est établie par le Conseil des ventes volontaires de meubles aux enchères publiques.
Nul ne peut l'être dans plus de deux spécialités, à moins qu'il ne s'agisse de spécialités connexes aux précédentes dont le nombre ne peut être supérieur à deux.
Article L321-31
Tout expert, qu'il soit ou non agréé, est tenu de contracter une assurance garantissant sa responsabilité professionnelle.
Il est solidairement responsable avec l'organisateur de la vente pour ce qui relève de son activité.
Article L321-32
Toute personne inscrite sur la liste prévue à l'article L. 321-29 ne peut faire état de sa qualité que sous la dénomination "d'expert agréé par le Conseil des ventes volontaires de meubles aux enchères publiques".
Cette dénomination doit être accompagnée de l'indication de sa ou ses spécialités.
Article L321-33
Le fait, pour toute personne ne figurant pas sur la liste prévue à l'article L. 321-29 d'user de la dénomination mentionnée à cet article, ou d'une dénomination présentant une ressemblance de nature à causer une méprise dans l'esprit du public, est puni des peines prévues par l'article 433-17 du code pénal.
Article L321-34
Le Conseil des ventes volontaires de meubles aux enchères publiques peut prononcer le retrait de l'agrément d'un expert en cas d'incapacité légale, de faute professionnelle grave, de condamnation pour faits contraires à l'honneur, à la probité ou aux bonnes moeurs.
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Article L321-35
Un expert, qu'il soit ou non agréé ne peut estimer ni mettre en vente un bien lui appartenant ni se porter acquéreur directement ou indirectement pour son propre compte d'un bien dans les ventes aux enchères publiques auxquelles il apporte son concours.
A titre exceptionnel, l'expert peut cependant vendre, par l'intermédiaire d'une personne mentionnée à l'article L. 321-2, un bien lui appartenant à condition qu'il en soit fait mention dans la publicité.
Article L321-35-1
Lorsqu'il a recours à un expert qui n'est pas agréé, l'organisateur de la vente veille au respect par celui-ci des obligations prévues au premier alinéa de l'article L. 321-31 et à l'article L. 321-35.
Section 4 : Dispositions diverses.
Article L321-36
Les ventes aux enchères publiques de meubles appartenant à l'Etat définies à l'article L. 68 du code du domaine de l'Etat, ainsi que toutes les ventes de biens meubles effectuées en la forme domaniale dans les conditions prévues à l'article L. 69 du même code, continuent d'être faites selon les modalités prévues à ces articles. Toutefois, par dérogation aux dispositions des articles L. 68, L. 69 et L. 70 du même code, ces ventes peuvent être faites avec publicité et concurrence, pour le compte de l'Etat, par les sociétés de ventes volontaires de meubles aux enchères publiques dans les conditions prévues par le présent chapitre.
Les ventes de meubles aux enchères publiques relevant du code des douanes sont faites selon les modalités prévues par le même code. Toutefois, par dérogation aux dispositions du code des douanes, ces ventes peuvent également être faites avec publicité et concurrence, pour le compte de l'Etat, par les sociétés de ventes volontaires de meubles aux enchères publiques dans les conditions prévues par le présent chapitre.
Article L321-37
Les tribunaux civils sont seuls compétents pour connaître des actions en justice relatives aux activités de vente dans lesquels est partie une société de ventes volontaires de meubles aux enchères publiques constituée conformément au présent chapitre. Toute clause contraire est réputée non écrite. Néanmoins, les associés peuvent convenir, dans les statuts, de soumettre à des arbitres les contestations qui surviendraient entre eux ou entre sociétés de ventes volontaires à raison de leur activité.
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Article L321-38
Un décret en Conseil d'Etat fixe les conditions d'application du présent chapitre et notamment, le régime du cautionnement prévu à l'article L. 321-6, les conditions d'information du conseil des ventes volontaires de meubles aux enchères publiques lorsque l'exposition ou la vente n'a pas lieu dans les locaux visés dans la première phrase de l'article L. 321-7, les mentions devant figurer sur la publicité prévue à l'article L. 321-11, les modalités d'organisation et de fonctionnement du conseil des ventes aux enchères publiques et les conditions d'agrément des experts par le conseil.
Chapitre II : Des autres ventes aux enchères.
Article L322-1
Les ventes publiques et au détail de marchandises qui ont lieu après décès ou par autorité de justice sont faites selon les formes prescrites et par les officiers ministériels préposés pour la vente forcée du mobilier conformément aux articles 53 de la loi n° 91-650 du 9 juillet 1991 relative à la réforme des procédures civiles d'exécution et 945 du code de procédure civile.
Article L322-2
Les ventes de marchandises après liquidation judiciaire sont faites conformément aux articles L. 642-19 et suivants.
Le mobilier du débiteur ne peut être vendu aux enchères que par le ministère des commissaires-priseurs judiciaires, notaires ou huissiers, conformément aux lois et règlements qui déterminent les attributions de ces différents officiers.
Article L322-3
Les ventes publiques et par enchères après cessation de commerce, ou dans les autres cas de nécessité prévus par l'article L. 320-2, ne peuvent avoir lieu qu'autant qu'elles ont été préalablement autorisées par le tribunal de commerce, sur la requête du commerçant propriétaire, à laquelle est joint un état détaillé des marchandises.
Le tribunal constate, par son jugement, le fait qui donne lieu à la vente ; il indique le lieu de l'arrondissement où se fait la vente ; il peut même ordonner que les adjudications n'ont lieu que par lots dont il fixe l'importance.
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Il décide qui, des courtiers ou des commissaires-priseurs judiciaires ou autres officiers publics, est chargé de la réception des enchères.
L'autorisation ne peut être accordée pour cause de nécessité qu'au marchand sédentaire, ayant depuis un an au moins son domicile réel dans l'arrondissement où la vente doit être opérée.
Des affiches apposées à la porte du lieu où se fait la vente énoncent le jugement qui l'a autorisée.
Article L322-4
Les ventes publiques aux enchères de marchandises en gros sont faites par le ministère des courtiers de marchandises assermentés dans les cas, aux conditions et suivant les formes fixées par décret en Conseil d'Etat.
Article L322-5
Toute infraction aux dispositions des articles L. 320-1, L. 320-2 et L. 322-1 à L. 322-7 est punie de la confiscation des marchandises mises en vente et, en outre, d'une amende de 3 750 euros, qui est prononcée solidairement tant contre le vendeur que contre l'officier public qui l'a assisté, sans préjudice des dommages intérêts, s'il y a lieu.
Est considérée comme complice et frappée des mêmes peines toute personne dont l'interposition a pour but de tourner l'interdiction formulée à l'article L. 320-1.
Article L322-6
Le fait pour les vendeurs ou officiers publics de comprendre dans les ventes faites par autorité de justice, sur saisie, après décès, liquidation judiciaire, cessation de commerce, ou dans les autres cas de nécessité prévus par l'article L. 320-2 des marchandises neuves ne faisant pas partie du fonds ou mobilier mis en vente, est passible des peines prévues à l'article L. 322-5.
Article L322-7
Dans les lieux où il n'y a point de courtiers de commerce, les commissaires-priseurs judiciaires, les notaires et huissiers font les ventes ci-dessus, selon les droits qui leur sont respectivement attribués par les lois et règlements.
Ils sont, pour lesdites ventes, soumis aux formes, conditions et tarifs imposés aux courtiers.
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Article L322-8
Les courtiers assermentés peuvent, sans autorisation du tribunal de commerce, procéder à la vente volontaire aux enchères de marchandises, en gros. Toutefois, une autorisation est requise pour les marchandises telles que le matériel de transport, les armes, munitions et leurs parties accessoires, les objets d'art, de collection ou d'antiquité et les autres biens d'occasion, dont la liste est fixée par arrêté du garde des sceaux, ministre de la justice, et du ministre chargé du commerce.
Article L322-9
Les courtiers établis dans une ville où siège un tribunal de commerce ont qualité pour procéder aux ventes régies par le présent chapitre, dans toute localité dépendant du ressort de ce tribunal où il n'existe pas de courtiers.
Ils se conforment aux dispositions prescrites par les articles 871 et 873 du code général des impôts.
Article L322-10
Le droit de courtage pour les ventes qui font l'objet des articles L. 322-8 à L. 322-13 est fixé, pour chaque localité, par le ministre chargé de l'agriculture, du commerce ou des travaux publics, après avis de la chambre de commerce et d'industrie et du tribunal de commerce. En aucun cas, il ne peut excéder le droit établi dans les ventes de gré à gré, pour les mêmes sortes de marchandises.
Article L322-11
Les contestations relatives aux ventes réalisées en application de l'article L. 322-8 sont portées devant le tribunal de commerce.
Article L322-12
Il est procédé aux ventes prévues à l'article L. 322-8 dans des locaux spécialement autorisés à cet effet, après avis de la chambre de commerce et d'industrie et du tribunal de commerce.
Article L322-13
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Un décret en Conseil d'Etat détermine les mesures nécessaires à l'exécution des articles L. 322-11 et L. 322-12 notamment les formes et les conditions des autorisations prévues par l'article L. 322-12.
Article L322-14
Les tribunaux de commerce peuvent, après décès ou cessation de commerce, et dans tous les autres cas de nécessité dont l'appréciation leur est soumise, autoriser la vente aux enchères en gros des marchandises de toute espèce et de toute provenance.
L'autorisation est donnée sur requête. Un état détaillé des marchandises à vendre est joint à la requête.
Le tribunal constate par son jugement le fait qui donne lieu à la vente.
Article L322-15
Les ventes autorisées en vertu de l'article précédent, ainsi que toutes celles qui sont autorisées ou ordonnées par la justice consulaire dans les divers cas prévus par le présent code sont faites par le ministère des courtiers.
Néanmoins, il appartient toujours au tribunal, ou au juge qui autorise ou ordonne la vente, de désigner, pour y procéder, une autre classe d'officiers publics. Dans ce cas, l'officier public, quel qu'il soit, est soumis aux dispositions qui régissent les courtiers, relativement aux formes, aux tarifs et à la responsabilité.
Article L322-16
Les dispositions des articles L. 322-11 à L. 322-13 sont applicables aux ventes visées aux articles L. 322-14 et L. 322-15.
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Partie législative
LIVRE III : De certaines formes de ventes et des clauses d'exclusivité.
TITRE III : Des clauses d'exclusivité.
Article L330-1
Est limitée à un maximum de dix ans la durée de validité de toute clause d'exclusivité par laquelle l'acheteur, cessionnaire ou locataire de biens meubles s'engage vis à vis de son vendeur, cédant ou bailleur, à ne pas faire usage d'objets semblables ou complémentaires en provenance d'un autre fournisseur.
Article L330-2
Lorsque le contrat comportant la clause d'exclusivité mentionnée à l'article L. 330-1 est suivi ultérieurement, entre les mêmes parties, d'autres engagements analogues portant sur le même genre de biens, les clauses d'exclusivité contenues dans ces nouvelles conventions prennent fin à la même date que celle figurant au premier contrat.
Article L330-3
Toute personne qui met à la disposition d'une autre personne un nom commercial, une marque ou une enseigne, en exigeant d'elle un engagement d'exclusivité ou de quasi-exclusivité pour l'exercice de son activité, est tenue, préalablement à la signature de tout contrat conclu dans l'intérêt commun des deux parties, de fournir à l'autre partie un document donnant des informations sincères, qui lui permette de s'engager en connaissance de cause.
Ce document, dont le contenu est fixé par décret, précise notamment, l'ancienneté et l'expérience de l'entreprise, l'état et les perspectives de développement du marché concerné, l'importance du réseau d'exploitants, la durée, les conditions de renouvellement, de résiliation et de cession du contrat ainsi que le champ des exclusivités.
Lorsque le versement d'une somme est exigé préalablement à la signature du contrat mentionné ci-dessus, notamment pour obtenir la réservation d'une zone, les prestations assurées en contrepartie de cette somme sont précisées par écrit, ainsi que les obligations réciproques des parties en cas de dédit.
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Le document prévu au premier alinéa ainsi que le projet de contrat sont communiqués vingt jours minimum avant la signature du contrat, ou, le cas échéant, avant le versement de la somme mentionnée à l'alinéa précédent.
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Partie législative
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE Ier : Dispositions générales.
Article L410-1
Les règles définies au présent livre s'appliquent à toutes les activités de production, de distribution et de services, y compris celles qui sont le fait de personnes publiques, notamment dans le cadre de conventions de délégation de service public.
Article L410-2
Sauf dans les cas où la loi en dispose autrement, les prix des biens, produits et services relevant antérieurement au 1er janvier 1987 de l'ordonnance n° 45-1483 du 30 juin 1945 sont librement déterminés par le jeu de la concurrence.
Toutefois, dans les secteurs ou les zones où la concurrence par les prix est limitée en raison soit de situations de monopole ou de difficultés durables d'approvisionnement, soit de dispositions législatives ou réglementaires, un décret en Conseil d'Etat peut réglementer les prix après consultation de l'Autorité de la concurrence.
Les dispositions des deux premiers alinéas ne font pas obstacle à ce que le Gouvernement arrête, par décret en Conseil d'Etat, contre des hausses ou des baisses excessives de prix, des mesures temporaires motivées par une situation de crise, des circonstances exceptionnelles, une calamité publique ou une situation manifestement anormale du marché dans un secteur déterminé. Le décret est pris après consultation du Conseil national de la consommation. Il précise sa durée de validité qui ne peut excéder six mois.
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Partie législative
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE II : Des pratiques anticoncurrentielles.
Article L420-1
Sont prohibées même par l'intermédiaire direct ou indirect d'une société du groupe implantée hors de France, lorsqu'elles ont pour objet ou peuvent avoir pour effet d'empêcher, de restreindre ou de fausser le jeu de la concurrence sur un marché, les actions concertées, conventions, ententes expresses ou tacites ou coalitions, notamment lorsqu'elles tendent à :
1° Limiter l'accès au marché ou le libre exercice de la concurrence par d'autres entreprises ;
2° Faire obstacle à la fixation des prix par le libre jeu du marché en favorisant artificiellement leur hausse ou leur baisse ;
3° Limiter ou contrôler la production, les débouchés, les investissements ou le progrès technique ;
4° Répartir les marchés ou les sources d'approvisionnement.
Article L420-2
Est prohibée, dans les conditions prévues à l'article L. 420-1, l'exploitation abusive par une entreprise ou un groupe d'entreprises d'une position dominante sur le marché intérieur ou une partie substantielle de celui-ci. Ces abus peuvent notamment consister en refus de vente, en ventes liées ou en conditions de vente discriminatoires ainsi que dans la rupture de relations commerciales établies, au seul motif que le partenaire refuse de se soumettre à des conditions commerciales injustifiées.
Est en outre prohibée, dès lors qu'elle est susceptible d'affecter le fonctionnement ou la structure de la concurrence, l'exploitation abusive par une entreprise ou un groupe d'entreprises de l'état de dépendance économique dans lequel se trouve à son égard une entreprise cliente ou fournisseur. Ces abus peuvent notamment consister en refus de vente, en ventes liées, en pratiques discriminatoires visées au I de l'article L. 442-6 ou en accords de gamme.
Article L420-3
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Est nul tout engagement, convention ou clause contractuelle se rapportant à une pratique prohibée par les articles L. 420-1 et L. 420-2.
Article L420-4
I.-Ne sont pas soumises aux dispositions des articles L. 420-1 et L. 420-2 les pratiques :
1° Qui résultent de l'application d'un texte législatif ou d'un texte réglementaire pris pour son application ;
2° Dont les auteurs peuvent justifier qu'elles ont pour effet d'assurer un progrès économique, y compris par la création ou le maintien d'emplois, et qu'elles réservent aux utilisateurs une partie équitable du profit qui en résulte, sans donner aux entreprises intéressées la possibilité d'éliminer la concurrence pour une partie substantielle des produits en cause. Ces pratiques qui peuvent consister à organiser, pour les produits agricoles ou d'origine agricole, sous une même marque ou enseigne, les volumes et la qualité de production ainsi que la politique commerciale, y compris en convenant d'un prix de cession commun ne doivent imposer des restrictions à la concurrence, que dans la mesure où elles sont indispensables pour atteindre cet objectif de progrès.
II.-Certaines catégories d'accords ou certains accords, notamment lorsqu'ils ont pour objet d'améliorer la gestion des entreprises moyennes ou petites, peuvent être reconnus comme satisfaisant à ces conditions par décret pris après avis conforme de l'Autorité de la concurrence.
Article L420-5
Sont prohibées les offres de prix ou pratiques de prix de vente aux consommateurs abusivement bas par rapport aux coûts de production, de transformation et de commercialisation, dès lors que ces offres ou pratiques ont pour objet ou peuvent avoir pour effet d'éliminer d'un marché ou d'empêcher d'accéder à un marché une entreprise ou l'un de ses produits.
Les coûts de commercialisation comportent également et impérativement tous les frais résultant des obligations légales et réglementaires liées à la sécurité des produits.
Ces dispositions ne sont pas applicables en cas de revente en l'état, à l'exception des enregistrements sonores reproduits sur supports matériels et des vidéogrammes destinés à l'usage privé du public.
Article L420-6
Est puni d'un emprisonnement de quatre ans et d'une amende de 75000 euros le fait, pour toute personne physique de prendre frauduleusement une part personnelle et déterminante dans la conception, l'organisation ou la mise en oeuvre de pratiques visées aux articles L. 420-1 et L. 420-2.
Le tribunal peut ordonner que sa décision soit publiée intégralement ou par extraits dans les journaux qu'il désigne, aux frais du condamné.
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Les actes interruptifs de la prescription devant l'Autorité de la concurrence en application de l'article L. 462-7 sont également interruptifs de la prescription de l'action publique.
Article L420-7
Sans préjudice des articles L. 420-6, L. 462-8, L. 463-1 à L. 463-4, L. 463-6, L. 463-7 et L. 464-1 à L. 464-8, les litiges relatifs à l'application des règles contenues dans les articles L. 420-1 à L. 420-5 ainsi que dans les articles 81 et 82 du traité instituant la Communauté européenne et ceux dans lesquels ces dispositions sont invoquées sont attribués, selon le cas et sous réserve des règles de partage de compétences entre les ordres de juridiction, aux tribunaux de grande instance ou aux tribunaux de commerce dont le siège et le ressort sont fixés par décret en Conseil d'Etat. Ce décret détermine également le siège et le ressort de la ou des cours d'appel appelées à connaître des décisions rendues par ces juridictions.
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Partie législative
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE III : De la concentration économique.
Article L430-1
I. - Une opération de concentration est réalisée :
1° Lorsque deux ou plusieurs entreprises antérieurement indépendantes fusionnent ;
2° Lorsqu'une ou plusieurs personnes, détenant déjà le contrôle d'une entreprise au moins ou lorsqu'une ou plusieurs entreprises acquièrent, directement ou indirectement, que ce soit par prise de participation au capital ou achat d'éléments d'actifs, contrat ou tout autre moyen, le contrôle de l'ensemble ou de parties d'une ou plusieurs autres entreprises.
II. - La création d'une entreprise commune accomplissant de manière durable toutes les fonctions d'une entité économique autonome constitue une concentration au sens du présent article.
III. - Aux fins de l'application du présent titre, le contrôle découle des droits, contrats ou autres moyens qui confèrent, seuls ou conjointement et compte tenu des circonstances de fait ou de droit, la possibilité d'exercer une influence déterminante sur l'activité d'une entreprise, et notamment :
- des droits de propriété ou de jouissance sur tout ou partie des biens d'une entreprise ;
- des droits ou des contrats qui confèrent une influence déterminante sur la composition, les délibérations ou les décisions des organes d'une entreprise.
Article L430-2
I.-Est soumise aux dispositions des articles L. 430-3 et suivants du présent titre toute opération de concentration, au sens de l'article L. 430-1, lorsque sont réunies les trois conditions suivantes : -le chiffre d'affaires total mondial hors taxes de l'ensemble des entreprises ou groupes de personnes physiques ou morales parties à la concentration est supérieur à 150 millions d'euros ; -le chiffre d'affaires total hors taxes réalisé en France par deux au moins des entreprises ou groupes de personnes physiques ou morales concernés est supérieur à 50 millions d'euros ; -l'opération n'entre pas dans le champ d'application du règlement (CE) n° 139 / 2004 du Conseil, du 20 janvier 2004, relatif au contrôle des concentrations entre entreprises. II.-Lorsque deux au moins des parties à la
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concentration exploitent un ou plusieurs magasins de commerce de détail, est soumise aux dispositions des articles L. 430-3 et suivants du présent titre toute opération de concentration, au sens de l'article L. 430-1, lorsque sont réunies les trois conditions suivantes : -le chiffre d'affaires total mondial hors taxes de l'ensemble des entreprises ou groupes de personnes physiques ou morales parties à la concentration est supérieur à 75 millions d'euros ; -le chiffre d'affaires total hors taxes réalisé en France dans le secteur du commerce de détail par deux au moins des entreprises ou groupes de personnes physiques ou morales concernés est supérieur à 15 millions d'euros ; -l'opération n'entre pas dans le champ d'application du règlement (CE) n° 139 / 2004 du Conseil, du 20 janvier 2004, précité. III.-Lorsque au moins une des parties à la concentration exerce tout ou partie de son activité dans un ou plusieurs départements d'outre-mer ou dans les collectivités d'outre-mer de Mayotte, Saint-Pierre-et-Miquelon, Saint-Martin et Saint-Barthélemy, est soumise aux dispositions des articles L. 430-3 et suivants du présent titre toute opération de concentration, au sens de l'article L. 430-1, lorsque sont réunies les trois conditions suivantes : -le chiffre d'affaires total mondial hors taxes de l'ensemble des entreprises ou groupes de personnes physiques ou morales parties à la concentration est supérieur à 75 millions d'euros ; -le chiffre d'affaires total hors taxes réalisé individuellement dans au moins un des départements ou collectivités territoriales concernés par deux au moins des entreprises ou groupes de personnes physiques ou morales concernés est supérieur à 15 millions d'euros ; -l'opération n'entre pas dans le champ d'application du règlement (CE) n° 139 / 2004 du Conseil, du 20 janvier 2004, précité. IV.-Une opération de concentration visée aux I, II ou III entrant dans le champ du règlement (CE) n° 139 / 2004 du Conseil, du 20 janvier 2004, précité qui a fait l'objet d'un renvoi total ou partiel à l'Autorité de la concurrence est soumise, dans la limite de ce renvoi, aux dispositions du présent titre. V.-Les chiffres d'affaires visés aux I, II et III sont calculés selon les modalités définies par l'article 5 du règlement (CE) n° 139 / 2004 du Conseil, du 20 janvier 2004, précité.
Article L430-3
L'opération de concentration doit être notifiée à l'Autorité de la concurrence avant sa réalisation. La notification peut intervenir dès lors que la ou les parties concernées sont en mesure de présenter un projet suffisamment abouti pour permettre l'instruction du dossier et notamment lorsqu'elles ont conclu un accord de principe, signé une lettre d'intention ou dès l'annonce d'une offre publique. Le renvoi à l'Autorité de la concurrence de tout ou partie d'un cas de concentration notifié à la Commission européenne vaut notification au sens du présent article.
L'obligation de notification incombe aux personnes physiques ou morales qui acquièrent le contrôle de tout ou partie d'une entreprise ou, dans le cas d'une fusion ou de la création d'une entreprise commune, à toutes les parties concernées qui doivent alors notifier conjointement. Le contenu du dossier de notification est fixé par décret.
La réception de la notification d'une opération, ou le renvoi total ou partiel d'une opération de dimension communautaire, fait l'objet d'un communiqué publié par l'Autorité de la concurrence selon des modalités fixées par décret.
Dès réception du dossier, l'Autorité de la concurrence en adresse un exemplaire au ministre chargé de l'économie.
Article L430-4
La réalisation effective d'une opération de concentration ne peut intervenir qu'après l'accord de l'Autorité de la concurrence ou, lorsqu'il a évoqué l'affaire dans les conditions prévues à l'article L.
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430-7-1, celui du ministre chargé de l'économie.
En cas de nécessité particulière dûment motivée, les parties qui ont procédé à la notification peuvent demander à l'Autorité de la concurrence une dérogation leur permettant de procéder à la réalisation effective de tout ou partie de la concentration sans attendre la décision mentionnée au premier alinéa et sans préjudice de celle-ci.
Article L430-5
I.-L'Autorité de la concurrence se prononce sur l'opération de concentration dans un délai de vingt-cinq jours ouvrés à compter de la date de réception de la notification complète.
II.-Les parties à l'opération peuvent s'engager à prendre des mesures visant notamment à remédier, le cas échéant, aux effets anticoncurrentiels de l'opération soit à l'occasion de la notification de cette opération, soit à tout moment avant l'expiration du délai de vingt-cinq jours ouvrés à compter de la date de réception de la notification complète, tant que la décision prévue au I n'est pas intervenue.
Si des engagements sont reçus par l'Autorité de la concurrence, le délai mentionné au I est prolongé de quinze jours ouvrés.
En cas de nécessité particulière, telle que la finalisation des engagements mentionnés à l'alinéa précédent, les parties peuvent demander à l'Autorité de la concurrence de suspendre les délais d'examen de l'opération dans la limite de quinze jours ouvrés.
III.-L'Autorité de la concurrence peut :
-soit constater, par décision motivée, que l'opération qui lui a été notifiée n'entre pas dans le champ défini par les articles L. 430-1 et L. 430-2 ;
-soit autoriser l'opération, en subordonnant éventuellement, par décision motivée, cette autorisation à la réalisation effective des engagements pris par les parties.
-soit, si elle estime qu'il subsiste un doute sérieux d'atteinte à la concurrence, engager un examen approfondi dans les conditions prévues à l'article L. 430-6.
IV.-Si l'Autorité de la concurrence ne prend aucune des trois décisions prévues au III dans le délai mentionné au I, éventuellement prolongé en application du II, elle en informe le ministre chargé de l'économie.L'opération est réputée avoir fait l'objet d'une décision d'autorisation au terme du délai ouvert au ministre chargé de l'économie par le I de l'article L. 430-7-1.
Article L430-6
Lorsqu'une opération de concentration fait l'objet, en application du dernier alinéa du III de l'article L. 430-5, d'un examen approfondi, l'Autorité de la concurrence examine si elle est de nature à porter atteinte à la concurrence, notamment par création ou renforcement d'une position dominante ou par création ou renforcement d'une puissance d'achat qui place les fournisseurs en situation de dépendance économique. Elle apprécie si l'opération apporte au progrès économique une contribution suffisante pour compenser les atteintes à la concurrence.
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La procédure applicable à cet examen approfondi de l'opération par l'Autorité de la concurrence est celle prévue au deuxième alinéa de l'article L. 463-2 et aux articles L. 463-4, L. 463-6 et L. 463-7. Toutefois, les parties qui ont procédé à la notification et le commissaire du Gouvernement doivent produire leurs observations en réponse à la communication du rapport dans un délai de quinze jours ouvrés.
Avant de statuer, l'autorité peut entendre des tiers en l'absence des parties qui ont procédé à la notification. Les comités d'entreprise des entreprises parties à l'opération de concentration sont entendus à leur demande par l'autorité dans les mêmes conditions.
Article L430-7
I.-Lorsqu'une opération de concentration fait l'objet d'un examen approfondi, l'Autorité de la concurrence prend une décision dans un délai de soixante-cinq jours ouvrés à compter de l'ouverture de celui-ci. II.-Après avoir pris connaissance de l'ouverture d'un examen approfondi en application du dernier alinéa du III de l'article L. 430-5, les parties peuvent proposer des engagements de nature à remédier aux effets anticoncurrentiels de l'opération.S'ils sont transmis à l'Autorité de la concurrence moins de vingt jours ouvrés avant la fin du délai mentionné au I, celui-ci expire vingt jours ouvrés après la date de réception des engagements. En cas de nécessité particulière, telle que la finalisation des engagements mentionnés à l'alinéa précédent, les parties peuvent demander à l'Autorité de la concurrence de suspendre les délais d'examen de l'opération dans la limite de vingt jours ouvrés. Ces délais peuvent également être suspendus à l'initiative de l'Autorité de la concurrence lorsque les parties ayant procédé à la notification ont manqué de l'informer d'un fait nouveau dès sa survenance ou de lui communiquer, en tout ou partie, les informations demandées dans le délai imparti, ou que des tiers ont manqué de lui communiquer, pour des raisons imputables aux parties ayant procédé à la notification, les informations demandées. En ce cas, le délai reprend son cours dès la disparition de la cause ayant justifié sa suspension. III.-L'Autorité de la concurrence peut, par décision motivée : -soit interdire l'opération de concentration et enjoindre, le cas échéant, aux parties de prendre toute mesure propre à rétablir une concurrence suffisante ; -soit autoriser l'opération en enjoignant aux parties de prendre toute mesure propre à assurer une concurrence suffisante ou en les obligeant à observer des prescriptions de nature à apporter au progrès économique une contribution suffisante pour compenser les atteintes à la concurrence. Les injonctions et prescriptions mentionnées aux deux alinéas précédents s'imposent quelles que soient les clauses contractuelles éventuellement conclues par les parties. Le projet de décision est transmis aux parties intéressées, auxquelles un délai raisonnable est imparti pour présenter leurs observations. IV.-Si l'Autorité de la concurrence n'entend prendre aucune des décisions prévues au III, elle autorise l'opération par une décision motivée.L'autorisation peut être subordonnée à la réalisation effective des engagements pris par les parties qui ont procédé à la notification. V.-Si aucune des décisions prévues aux III et IV n'a été prise dans le délai mentionné au I, éventuellement prolongé en application du II, l'Autorité de la concurrence en informe le ministre chargé de l'économie.L'opération est réputée avoir fait l'objet d'une décision d'autorisation au terme du délai ouvert au ministre chargé de l'économie par le II de l'article L. 430-7-1.
Article L430-7-1
I.-Dans un délai de cinq jours ouvrés à compter de la date à laquelle il a reçu la décision de l'Autorité de la concurrence ou en a été informé en vertu de l'article L. 430-5, le ministre chargé de l'économie peut demander à l'Autorité de la concurrence un examen approfondi de l'opération dans les conditions prévues aux articles L. 430-6 et L. 430-7.
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II.-Dans un délai de vingt-cinq jours ouvrés à compter de la date à laquelle il a reçu la décision de l'Autorité de la concurrence ou en a été informé en vertu de l'article L. 430-7, le ministre chargé de l'économie peut évoquer l'affaire et statuer sur l'opération en cause pour des motifs d'intérêt général autres que le maintien de la concurrence et, le cas échéant, compensant l'atteinte portée à cette dernière par l'opération.
Les motifs d'intérêt général autres que le maintien de la concurrence pouvant conduire le ministre chargé de l'économie à évoquer l'affaire sont, notamment, le développement industriel, la compétitivité des entreprises en cause au regard de la concurrence internationale ou la création ou le maintien de l'emploi.
Lorsqu'en vertu du présent II le ministre chargé de l'économie évoque une décision de l'Autorité de la concurrence, il prend une décision motivée statuant sur l'opération en cause après avoir entendu les observations des parties à l'opération de concentration. Cette décision peut éventuellement être conditionnée à la mise en œuvre effective d'engagements.
Cette décision est transmise sans délai à l'Autorité de la concurrence.
Article L430-8
I.-Si une opération de concentration a été réalisée sans être notifiée, l'Autorité de la concurrence enjoint sous astreinte, dans la limite prévue au II de l'article L. 464-2, aux parties de notifier l'opération, à moins de revenir à l'état antérieur à la concentration. La procédure prévue aux articles L. 430-5 à L. 430-7 est alors applicable.
En outre, l'autorité peut infliger aux personnes auxquelles incombait la charge de la notification une sanction pécuniaire dont le montant maximum s'élève, pour les personnes morales, à 5 % de leur chiffre d'affaires hors taxes réalisé en France lors du dernier exercice clos, augmenté, le cas échéant, de celui qu'a réalisé en France durant la même période la partie acquise et, pour les personnes physiques, à 1, 5 million d'euros.
II.-Si une opération de concentration notifiée et ne bénéficiant pas de la dérogation prévue au deuxième alinéa de l'article L. 430-4 a été réalisée avant l'intervention de la décision prévue au premier alinéa du même article, l'Autorité de la concurrence peut infliger aux personnes ayant procédé à la notification une sanction pécuniaire qui ne peut dépasser le montant défini au I.
III.-En cas d'omission ou de déclaration inexacte dans une notification, l'Autorité de la concurrence peut infliger aux personnes ayant procédé à la notification une sanction pécuniaire qui ne peut dépasser le montant défini au I.
Cette sanction peut s'accompagner du retrait de la décision ayant autorisé la réalisation de l'opération.A moins de revenir à l'état antérieur à la concentration, les parties sont alors tenues de notifier de nouveau l'opération dans un délai d'un mois à compter du retrait de la décision, sauf à encourir les sanctions prévues au I.
IV.-Si elle estime que les parties n'ont pas exécuté dans les délais fixés une injonction, une prescription ou un engagement figurant dans sa décision ou dans la décision du ministre ayant statué sur l'opération en application de l'article L. 430-7-1, l'Autorité de la concurrence constate l'inexécution. Elle peut :
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1° Retirer la décision ayant autorisé la réalisation de l'opération.A moins de revenir à l'état antérieur à la concentration, les parties sont tenues de notifier de nouveau l'opération dans un délai d'un mois à compter du retrait de la décision, sauf à encourir les sanctions prévues au I ;
2° Enjoindre sous astreinte, dans la limite prévue au II de l'article L. 464-2, aux parties auxquelles incombait l'obligation non exécutée d'exécuter dans un délai qu'ils fixent les injonctions, prescriptions ou engagements.
En outre, l'Autorité de la concurrence peut infliger aux personnes auxquelles incombait l'obligation non exécutée une sanction pécuniaire qui ne peut dépasser le montant défini au I.
La procédure applicable est celle prévue au deuxième alinéa de l'article L. 463-2 et aux articles L. 463-4, L. 463-6 et L. 463-7. Toutefois, les parties qui ont procédé à la notification et le commissaire du Gouvernement doivent produire leurs observations en réponse à la communication du rapport dans un délai de quinze jours ouvrés.
L'Autorité de la concurrence se prononce dans un délai de soixante-quinze jours ouvrés.
V.-Si une opération de concentration a été réalisée en contravention des décisions prises en application des articles L. 430-7 et L. 430-7-1, l'Autorité de la concurrence enjoint sous astreinte, dans la limite prévue au II de l'article L. 464-2, aux parties de revenir à l'état antérieur à la concentration.
En outre, l'Autorité de la concurrence peut infliger aux personnes auxquelles les décisions précitées s'imposaient la sanction pécuniaire prévue au I.
Article L430-9
L'Autorité de la concurrence peut, en cas d'exploitation abusive d'une position dominante ou d'un état de dépendance économique, enjoindre, par décision motivée, à l'entreprise ou au groupe d'entreprises en cause de modifier, de compléter ou de résilier, dans un délai déterminé, tous accords et tous actes par lesquels s'est réalisée la concentration de la puissance économique qui a permis les abus même si ces actes ont fait l'objet de la procédure prévue au présent titre.
Article L430-10
Lorsqu'ils interrogent des tiers au sujet de l'opération, de ses effets et des engagements proposés par les parties, et rendent publique leur décision dans des conditions fixées par décret, l'Autorité de la concurrence et le ministre chargé de l'économie tiennent compte de l'intérêt légitime des parties qui procèdent à la notification ou des personnes citées à ce que leurs secrets d'affaires ne soient pas divulgués.
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Partie législative
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE IV : De la transparence, des pratiques restrictives de concurrence et d'autres pratiques prohibées.
Chapitre préliminaire : Dispositions générales.
Article L440-1
Une Commission d'examen des pratiques commerciales est créée. Elle est composée d'un député et d'un sénateur désignés par les commissions permanentes de leur assemblée compétentes en matière de relations commerciales entre fournisseurs et revendeurs, de membres, éventuellement honoraires, des juridictions administratives et judiciaires, de représentants des secteurs de la production et de la transformation agricole et halieutique, ainsi qu'industrielle et artisanale, des transformateurs, des grossistes, des distributeurs et de l'administration, ainsi que de personnalités qualifiées. Le président de la commission est désigné parmi ses membres par décret. Lorsque celui-ci n'est pas membre d'une juridiction, un vice-président appartenant à une juridiction administrative ou judiciaire est également désigné dans les mêmes conditions. Elle comprend un nombre égal de représentants des producteurs et des revendeurs.
Les membres de la commission sont tenus au secret professionnel pour les faits, actes et renseignements dont ils ont pu avoir connaissance en raison de leurs fonctions.
La commission a pour mission de donner des avis ou formuler des recommandations sur les questions, les documents commerciaux ou publicitaires, y compris les factures et contrats couverts par un secret industriel et commercial, et les pratiques concernant les relations commerciales entre producteurs, fournisseurs, revendeurs qui lui sont soumis. Elle assure, sous la responsabilité de son président, l'anonymat des saisines et des documents qui lui sont soumis, y compris vis-à-vis de ses membres.
La commission est saisie par le ministre chargé de l'économie, le ministre chargé du secteur économique concerné, le président de l'Autorité de la concurrence, toute personne morale, notamment les organisations professionnelles ou syndicales, les associations de consommateurs agréées, les chambres consulaires ou d'agriculture, ainsi que par tout producteur, fournisseur, revendeur s'estimant lésé par une pratique commerciale. Elle peut également se saisir d'office. Le président de la commission peut décider de mettre en place plusieurs chambres d'examen au sein de la commission.
L'avis rendu par la commission porte notamment sur la conformité au droit de la pratique ou du document dont elle est saisie.
La commission entend, à sa demande, les personnes et fonctionnaires qu'elle juge utiles à
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l'accomplissement de sa mission. Son président peut demander qu'une enquête soit effectuée par les agents habilités à cet effet par l'article L. 450-1 du présent code ou l'article L. 215-1 du code de la consommation, selon les procédures prévues. Le compte rendu de l'enquête est remis au président de la commission qui s'assure qu'il préserve l'anonymat des personnes concernées.
La commission peut également décider d'adopter une recommandation sur les questions dont elle est saisie et toutes celles entrant dans ses compétences, notamment celles portant sur le développement des bonnes pratiques. Lorsqu'elle fait suite à une saisine en application du troisième alinéa, cette recommandation ne contient aucune indication de nature à permettre l'identification des personnes concernées. La recommandation est communiquée au ministre chargé de l'économie et est publiée sur décision de la commission.
La commission exerce, en outre, un rôle d'observatoire régulier des pratiques commerciales, des facturations et des contrats conclus entre producteurs, fournisseurs, revendeurs qui lui sont soumis. Elle établit chaque année un rapport d'activité, qu'elle transmet au Gouvernement et aux assemblées parlementaires. Ce rapport est rendu public. Il comprend une analyse détaillée du nombre et de la nature des infractions aux dispositions du présent titre ayant fait l'objet de sanctions administratives ou pénales. Il comprend également les décisions rendues en matière civile sur les opérations engageant la responsabilité de leurs auteurs.
Un décret détermine l'organisation, les moyens et les modalités de fonctionnement de la commission ainsi que les conditions nécessaires pour assurer l'anonymat des acteurs économiques visés dans les avis et recommandations de la commission.
Chapitre Ier : De la transparence.
Article L441-1
Les règles relatives aux conditions de vente au consommateur sont fixées par l'article L. 113-3 du code de la consommation reproduit ci-après :
" Art.L. 113-3.-Tout vendeur de produits ou tout prestataire de services doit par voie de marquage, d'étiquetage, d'affichage ou par tout autre procédé approprié, informer le consommateur sur les prix, les limitations éventuelles de la responsabilité contractuelle et les conditions particulières de la vente, selon des modalités fixées par arrêtés du ministre chargé de l'économie, après consultation du Conseil national de la consommation.
Cette disposition s'applique à toutes les activités visées au dernier alinéa de l'article L. 113-2.
Les règles relatives à l'obligation de renseignements par les établissements de crédit et les organismes mentionnés à l'article L. 518-1 du code monétaire et financier sont fixées par les I et II de l'article L. 312-1-1 du même code."
Article L441-2
Toute publicité à l'égard du consommateur, diffusée sur tout support ou visible de l'extérieur du lieu de vente, mentionnant une réduction de prix ou un prix promotionnel sur les produits alimentaires périssables doit préciser la nature et l'origine du ou des produits offerts et la période pendant laquelle est maintenue l'offre proposée par l'annonceur. La mention relative à l'origine est inscrite
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en caractères d'une taille égale à celle de l'indication du prix.
Lorsque de telles opérations promotionnelles sont susceptibles, par leur ampleur ou leur fréquence, de désorganiser les marchés, un arrêté interministériel ou, à défaut, préfectoral fixe, pour les produits concernés, la périodicité et la durée de telles opérations.
Pour un fruit ou légume frais ayant fait l'objet, entre le fournisseur et son client, d'un accord sur le prix de cession, l'annonce de prix, hors lieu de vente, est autorisée dans un délai maximum de soixante-douze heures précédant le premier jour de l'application du prix annoncé, pour une durée qui ne peut excéder cinq jours à compter de cette date.
Dans tous les autres cas, toute annonce de prix, hors lieu de vente, portant sur un fruit ou légume frais quelle que soit son origine, doit faire l'objet d'un accord interprofessionnel d'une durée d'un an renouvelable, conclu conformément aux dispositions de l'article L. 632-1 du code rural. Cet accord précise les périodes durant lesquelles une telle annonce est possible et ses modalités.
Cet accord peut être étendu conformément aux dispositions des articles L. 632-3 et L. 632-4 du même code.
Les dispositions des trois alinéas précédents ne sont pas applicables aux fruits et légumes frais appartenant à des espèces non produites en France métropolitaine.
Toute infraction aux dispositions des alinéas ci-dessus est punie d'une amende de 15 000 Euros.
La cessation de la publicité réalisée dans des conditions non conformes aux dispositions du présent article peut être ordonnée dans les conditions prévues à l'article L. 121-3 du code de la consommation.
Article L441-2-1
Pour les produits agricoles périssables ou issus de cycles courts de production, d'animaux vifs, de carcasses ou pour les produits de la pêche et de l'aquaculture, figurant sur une liste établie par décret, un distributeur ou prestataire de services ne peut bénéficier de remises, rabais et ristournes ou prévoir la rémunération de services rendus à l'occasion de leur revente, propres à favoriser leur commercialisation et ne relevant pas des obligations d'achat et de vente, ou de services ayant un objet distinct, que si ceux-ci sont prévus dans un contrat écrit portant sur la vente de ces produits par le fournisseur.
Ce contrat comprend notamment des clauses relatives aux engagements sur les volumes, aux modalités de détermination du prix en fonction des volumes et des qualités des produits et des services concernés et à la fixation d'un prix. Il indique les avantages tarifaires consentis par le fournisseur au distributeur au regard des engagements de ce dernier.
Lorsqu'un contrat type relatif aux activités mentionnées au premier alinéa est inclus dans un accord interprofessionnel adopté par l'organisation interprofessionnelle reconnue pour le produit concerné et étendu en application des dispositions des articles L. 632-3 et L. 632-4 du code rural, le contrat
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mentionné au premier alinéa doit être conforme à ce contrat type. Toute infraction aux dispositions du présent article est punie d'une amende de 15 000 Euros.
Article L441-3
Tout achat de produits ou toute prestation de service pour une activité professionnelle doivent faire l'objet d'une facturation.
Le vendeur est tenu de délivrer la facture dès la réalisation de la vente ou la prestation du service. L'acheteur doit la réclamer. La facture doit être rédigée en double exemplaire. Le vendeur et l'acheteur doivent en conserver chacun un exemplaire.
La facture doit mentionner le nom des parties ainsi que leur adresse, la date de la vente ou de la prestation de service, la quantité, la dénomination précise, et le prix unitaire hors TVA des produits vendus et des services rendus ainsi que toute réduction de prix acquise à la date de la vente ou de la prestation de services et directement liée à cette opération de vente ou de prestation de services, à l'exclusion des escomptes non prévus sur la facture.
La facture mentionne également la date à laquelle le règlement doit intervenir. Elle précise les conditions d'escompte applicables en cas de paiement à une date antérieure à celle résultant de l'application des conditions générales de vente ainsi que le taux des pénalités exigibles le jour suivant la date de règlement inscrite sur la facture. Le règlement est réputé réalisé à la date à laquelle les fonds sont mis, par le client, à la disposition du bénéficiaire ou de son subrogé.
Article L441-4
Toute infraction aux dispositions de l'article L. 441-3 est punie d'une amende de 75000 euros.
L'amende peut être portée à 50 % de la somme facturée ou de celle qui aurait dû être facturée.
Article L441-5
Les personnes morales déclarées pénalement responsables de l'infraction prévue à l'article L. 441-4 encourent une peine d'exclusion des marchés publics pour une durée de cinq ans au plus, en application du 5° de l'article 131-39 du code pénal.
Article L441-6
Tout producteur, prestataire de services, grossiste ou importateur est tenu de communiquer ses conditions générales de vente à tout acheteur de produits ou tout demandeur de prestations de services qui en fait la demande pour une activité professionnelle. Celles-ci constituent le socle de la négociation commerciale. Elles comprennent :
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-les conditions de vente ;
-le barème des prix unitaires ;
-les réductions de prix ;
-les conditions de règlement.
Les conditions générales de vente peuvent être différenciées selon les catégories d'acheteurs de produits ou de demandeurs de prestation de services. Dans ce cas, l'obligation de communication prescrite au premier alinéa porte sur les conditions générales de vente applicables aux acheteurs de produits ou aux demandeurs de prestation de services d'une même catégorie.
Tout producteur, prestataire de services, grossiste ou importateur peut convenir avec un acheteur de produits ou demandeur de prestation de services de conditions particulières de vente qui ne sont pas soumises à l'obligation de communication prescrite au premier alinéa.
Sauf dispositions contraires figurant aux conditions de vente ou convenues entre les parties, le délai de règlement des sommes dues est fixé au trentième jour suivant la date de réception des marchandises ou d'exécution de la prestation demandée.
Le délai convenu entre les parties pour régler les sommes dues ne peut dépasser quarante-cinq jours fin de mois ou soixante jours à compter de la date d'émission de la facture.
Les professionnels d'un secteur, clients et fournisseurs, peuvent décider conjointement de réduire le délai maximum de paiement fixé à l'alinéa précédent. Ils peuvent également proposer de retenir la date de réception des marchandises ou d'exécution de la prestation de services demandée comme point de départ de ce délai. Des accords sont conclus à cet effet par leurs organisations professionnelles. Un décret peut étendre le nouveau délai maximum de paiement à tous les opérateurs du secteur ou, le cas échéant, valider le nouveau mode de computation et l'étendre à ces mêmes opérateurs.
Nonobstant les dispositions précédentes, pour le transport routier de marchandises, pour la location de véhicules avec ou sans conducteur, pour la commission de transport ainsi que pour les activités de transitaire, d'agent maritime et de fret aérien, de courtier de fret et de commissionnaire en douane, les délais de paiement convenus ne peuvent en aucun cas dépasser trente jours à compter de la date d'émission de la facture.
Les conditions de règlement doivent obligatoirement préciser les conditions d'application et le taux d'intérêt des pénalités de retard exigibles le jour suivant la date de règlement figurant sur la facture dans le cas où les sommes dues sont réglées après cette date. Sauf disposition contraire qui ne peut toutefois fixer un taux inférieur à trois fois le taux d'intérêt légal, ce taux est égal au taux d'intérêt appliqué par la Banque centrale européenne à son opération de refinancement la plus récente majoré de 10 points de pourcentage. Les pénalités de retard sont exigibles sans qu'un rappel soit nécessaire.
La communication prévue au premier alinéa s'effectue par tout moyen conforme aux usages de la profession.
Est puni d'une amende de 15 000 euros le fait de ne pas respecter les délais de paiement mentionnés aux huitième et onzième alinéas, le fait de ne pas indiquer dans les conditions de règlement les mentions figurant à la première phrase du douzième alinéa ainsi que le fait de fixer un taux ou des conditions d'exigibilité selon des modalités non conformes aux dispositions du même alinéa.
Article L441-6-1
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Les sociétés dont les comptes annuels sont certifiés par un commissaire aux comptes publient des informations sur les délais de paiement de leurs fournisseurs ou de leurs clients suivant des modalités définies par décret.
Ces informations font l'objet d'un rapport du commissaire aux comptes dans des conditions fixées par ce même décret. Le commissaire aux comptes adresse ledit rapport au ministre chargé de l'économie s'il démontre, de façon répétée, des manquements significatifs aux prescriptions des neuvième et dixième alinéas de l'article L. 441-6.
Article L441-7
I.-Une convention écrite conclue entre le fournisseur et le distributeur ou le prestataire de services indique les obligations auxquelles se sont engagées les parties en vue de fixer le prix à l'issue de la négociation commerciale. Etablie soit dans un document unique, soit dans un ensemble formé par un contrat-cadre annuel et des contrats d'application, elle fixe :
1° Les conditions de l'opération de vente des produits ou des prestations de services telles qu'elles résultent de la négociation commerciale dans le respect de l'article L. 441-6 ;
2° Les conditions dans lesquelles le distributeur ou le prestataire de services s'oblige à rendre au fournisseur, à l'occasion de la revente de ses produits ou services aux consommateurs ou en vue de leur revente aux professionnels, tout service propre à favoriser leur commercialisation ne relevant pas des obligations d'achat et de vente, en précisant l'objet, la date prévue, les modalités d'exécution, la rémunération des obligations ainsi que les produits ou services auxquels elles se rapportent ;
3° Les autres obligations destinées à favoriser la relation commerciale entre le fournisseur et le distributeur ou le prestataire de services, en précisant pour chacune l'objet, la date prévue et les modalités d'exécution.
Les obligations relevant des 1° et 3° concourent à la détermination du prix convenu.
La convention unique ou le contrat-cadre annuel est conclu avant le 1er mars ou dans les deux mois suivant le point de départ de la période de commercialisation des produits ou des services soumis à un cycle de commercialisation particulier. Le présent I n'est pas applicable aux produits mentionnés au premier alinéa de l'article L. 441-2-1.
II.-Est puni d'une amende de 75 000 euros le fait de ne pas pouvoir justifier avoir conclu dans les délais prévus une convention satisfaisant aux exigences du I.
Chapitre II : Des pratiques restrictives de concurrence.
Article L442-1
Les règles relatives aux ventes ou prestations avec primes, aux refus de vente ou de prestation, prestations par lots ou par quantités imposées sont fixées par les articles L. 121-35 et L. 122-1 du code de la consommation reproduits ci-après :
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" Art.L. 121-35.-Est interdite toute vente ou offre de vente de produits ou de biens ou toute prestation ou offre de prestation de services, faite aux consommateurs et donnant droit à titre gratuit, immédiatement ou à terme, à une prime consistant en produits, biens ou services sauf s'ils sont identiques à ceux qui font l'objet de la vente ou de la prestation.
Cette disposition ne s'applique pas aux menus objets ou services de faible valeur ni aux échantillons.
Cette disposition s'applique à toutes les activités visées au dernier alinéa de l'articles L. 113-2.
Pour les établissements de crédit et les organismes mentionnés à l'article L. 518-1 du code monétaire et financier, les règles relatives aux ventes avec primes sont fixées par le 2 du I de l'article L. 312-1-2 du même code. "
" Art.L. 122-1.-Il est interdit de refuser à un consommateur la vente d'un produit ou la prestation d'un service, sauf motif légitime, et de subordonner la vente d'un produit à l'achat d'une quantité imposée ou à l'achat concomitant d'un autre produit ou d'un autre service ainsi que de subordonner la prestation d'un service à celle d'un autre service ou à l'achat d'un produit.
Cette disposition s'applique à toutes les activités visées au dernier alinéa de l'articles L. 113-2.
Pour les établissements de crédit et les organismes mentionnés à l'article L. 518-1 du code monétaire et financier, les règles relatives aux ventes subordonnées sont fixées par le 1 du I de l'article L. 312-1-2 du même code. "
Article L442-2
Le fait, pour tout commerçant, de revendre ou d'annoncer la revente d'un produit en l'état à un prix inférieur à son prix d'achat effectif est puni de 75 000 euros d'amende. Cette amende peut être portée à la moitié des dépenses de publicité dans le cas où une annonce publicitaire, quel qu'en soit le support, fait état d'un prix inférieur au prix d'achat effectif. La cessation de l'annonce publicitaire peut être ordonnée dans les conditions prévues à l'article L. 121-3 du code de la consommation.
Le prix d'achat effectif est le prix unitaire net figurant sur la facture d'achat, minoré du montant de l'ensemble des autres avantages financiers consentis par le vendeur exprimé en pourcentage du prix unitaire net du produit et majoré des taxes sur le chiffre d'affaires, des taxes spécifiques afférentes à cette revente et du prix du transport.
Le prix d'achat effectif tel que défini au deuxième alinéa est affecté d'un coefficient de 0, 9 pour le grossiste qui distribue des produits ou services exclusivement à des professionnels qui lui sont indépendants et qui exercent une activité de revendeur au détail, de transformateur ou de prestataire de services final. Est indépendante au sens de la phrase précédente toute entreprise libre de déterminer sa politique commerciale et dépourvue de lien capitalistique ou d'affiliation avec le grossiste.
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Article L442-3
Les personnes morales déclarées pénalement responsables de l'infraction prévue à l'article L. 442-2 encourent la peine mentionnée au 9° de l'article 131-39 du code pénal.
La cessation de l'annonce publicitaire peut être ordonnée dans les conditions prévues à l'article L. 121-3 du code de la consommation.
Article L442-4
I.-Les dispositions de l'article L. 442-2 ne sont pas applicables :
1° Aux ventes volontaires ou forcées motivées par la cessation ou le changement d'une activité commerciale :
2° Aux produits dont la vente présente un caractère saisonnier marqué, pendant la période terminale de la saison des ventes et dans l'intervalle compris entre deux saisons de vente ;
3° Aux produits qui ne répondent plus à la demande générale en raison de l'évolution de la mode ou de l'apparition de perfectionnements techniques ;
4° Aux produits, aux caractéristiques identiques, dont le réapprovisionnement s'est effectué en baisse, le prix effectif d'achat étant alors remplacé par le prix résultant de la nouvelle facture d'achat ;
5° Aux produits alimentaires commercialisés dans un magasin d'une surface de vente de moins de 300 mètres carrés et aux produits non alimentaires commercialisés dans un magasin d'une surface de vente de moins de 1 000 mètres carrés, dont le prix de revente est aligné sur le prix légalement pratiqué pour les mêmes produits par un autre commerçant dans la même zone d'activité ;
6° A condition que l'offre de prix réduit ne fasse l'objet d'une quelconque publicité ou annonce à l'extérieur du point de vente, aux produits périssables à partir du moment où ils sont menacés d'altération rapide ;
7° Aux produits soldés mentionnés à l'article L. 310-3.
II.-Les exceptions prévues au I ne font pas obstacle à l'application du 2° de l'article L. 653-5 et du 1 de l'article L. 654-2.
Article L442-5
Est puni d'une amende de 15000 euros le fait par toute personne d'imposer, directement ou indirectement, un caractère minimal au prix de revente d'un produit ou d'un bien, au prix d'une prestation de service ou à une marge commerciale.
Article L442-6
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I.-Engage la responsabilité de son auteur et l'oblige à réparer le préjudice causé le fait, par tout producteur, commerçant, industriel ou personne immatriculée au répertoire des métiers :
1° D'obtenir ou de tenter d'obtenir d'un partenaire commercial un avantage quelconque ne correspondant à aucun service commercial effectivement rendu ou manifestement disproportionné au regard de la valeur du service rendu. Un tel avantage peut notamment consister en la participation, non justifiée par un intérêt commun et sans contrepartie proportionnée, au financement d'une opération d'animation commerciale, d'une acquisition ou d'un investissement, en particulier dans le cadre de la rénovation de magasins ou encore du rapprochement d'enseignes ou de centrales de référencement ou d'achat. Un tel avantage peut également consister en une globalisation artificielle des chiffres d'affaires ou en une demande d'alignement sur les conditions commerciales obtenues par d'autres clients ;
2° De soumettre ou de tenter de soumettre un partenaire commercial à des obligations créant un déséquilibre significatif dans les droits et obligations des parties ;
3° D'obtenir ou de tenter d'obtenir un avantage, condition préalable à la passation de commandes, sans l'assortir d'un engagement écrit sur un volume d'achat proportionné et, le cas échéant, d'un service demandé par le fournisseur et ayant fait l'objet d'un accord écrit ;
4° D'obtenir ou de tenter d'obtenir, sous la menace d'une rupture brutale totale ou partielle des relations commerciales, des conditions manifestement abusives concernant les prix, les délais de paiement, les modalités de vente ou les services ne relevant pas des obligations d'achat et de vente ;
5° De rompre brutalement, même partiellement, une relation commerciale établie, sans préavis écrit tenant compte de la durée de la relation commerciale et respectant la durée minimale de préavis déterminée, en référence aux usages du commerce, par des accords interprofessionnels. Lorsque la relation commerciale porte sur la fourniture de produits sous marque de distributeur, la durée minimale de préavis est double de celle qui serait applicable si le produit n'était pas fourni sous marque de distributeur.A défaut de tels accords, des arrêtés du ministre chargé de l'économie peuvent, pour chaque catégorie de produits, fixer, en tenant compte des usages du commerce, un délai minimum de préavis et encadrer les conditions de rupture des relations commerciales, notamment en fonction de leur durée. Les dispositions qui précèdent ne font pas obstacle à la faculté de résiliation sans préavis, en cas d'inexécution par l'autre partie de ses obligations ou en cas de force majeure. Lorsque la rupture de la relation commerciale résulte d'une mise en concurrence par enchères à distance, la durée minimale de préavis est double de celle résultant de l'application des dispositions du présent alinéa dans les cas où la durée du préavis initial est de moins de six mois, et d'au moins un an dans les autres cas ;
6° De participer directement ou indirectement à la violation de l'interdiction de revente hors réseau faite au distributeur lié par un accord de distribution sélective ou exclusive exempté au titre des règles applicables du droit de la concurrence ;
7° De soumettre un partenaire à des conditions de règlement qui ne respectent pas le plafond fixé au neuvième alinéa de l'article L. 441-6 ou qui sont manifestement abusives, compte tenu des bonnes pratiques et usages commerciaux, et s'écartent au détriment du créancier, sans raison objective, du délai indiqué au huitième alinéa de l'article L. 441-6. Est notamment abusif le fait, pour le débiteur, de demander au créancier, sans raison objective, de différer la date d'émission de la facture ;
8° De procéder au refus ou retour de marchandises ou de déduire d'office du montant de la facture établie par le fournisseur les pénalités ou rabais correspondant au non-respect d'une date de livraison ou à la non-conformité des marchandises, lorsque la dette n'est pas certaine, liquide et exigible, sans même que le fournisseur n'ait été en mesure de contrôler la réalité du grief
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correspondant ;
9° De ne pas communiquer ses conditions générales de vente, dans les conditions prévues à l'article L. 441-6, à tout acheteur de produits ou tout demandeur de prestations de services qui en fait la demande pour l'exercice d'une activité professionnelle ;
10° De refuser de mentionner sur l'étiquetage d'un produit vendu sous marque de distributeur le nom et l'adresse du fabricant si celui-ci en a fait la demande conformément à l'article L. 112-6 du code de la consommation.
II.-Sont nuls les clauses ou contrats prévoyant pour un producteur, un commerçant, un industriel ou une personne immatriculée au répertoire des métiers, la possibilité :
a) De bénéficier rétroactivement de remises, de ristournes ou d'accords de coopération commerciale ;
b) D'obtenir le paiement d'un droit d'accès au référencement préalablement à la passation de toute commande ;
c) D'interdire au cocontractant la cession à des tiers des créances qu'il détient sur lui ;
d) De bénéficier automatiquement des conditions plus favorables consenties aux entreprises concurrentes par le cocontractant ;
e) D'obtenir d'un revendeur exploitant une surface de vente au détail inférieure à 300 mètres carrés qu'il approvisionne mais qui n'est pas lié à lui, directement ou indirectement, par un contrat de licence de marque ou de savoir-faire, un droit de préférence sur la cession ou le transfert de son activité ou une obligation de non-concurrence postcontractuelle, ou de subordonner l'approvisionnement de ce revendeur à une clause d'exclusivité ou de quasi-exclusivité d'achat de ses produits ou services d'une durée supérieure à deux ans.
L'annulation des clauses relatives au règlement entraîne l'application du délai indiqué au deuxième alinéa de l'article L. 441-6, sauf si la juridiction saisie peut constater un accord sur des conditions différentes qui soient équitables.
III.-L'action est introduite devant la juridiction civile ou commerciale compétente par toute personne justifiant d'un intérêt, par le ministère public, par le ministre chargé de l'économie ou par le président de l'Autorité de la concurrence lorsque ce dernier constate, à l'occasion des affaires qui relèvent de sa compétence, une pratique mentionnée au présent article.
Lors de cette action, le ministre chargé de l'économie et le ministère public peuvent demander à la juridiction saisie d'ordonner la cessation des pratiques mentionnées au présent article. Ils peuvent aussi, pour toutes ces pratiques, faire constater la nullité des clauses ou contrats illicites et demander la répétition de l'indu. Ils peuvent également demander le prononcé d'une amende civile dont le montant ne peut être supérieur à 2 millions d'euros. Toutefois, cette amende peut être portée au triple du montant des sommes indûment versées. La réparation des préjudices subis peut également être demandée. Dans tous les cas, il appartient au prestataire de services, au producteur, au commerçant, à l'industriel ou à la personne immatriculée au répertoire des métiers qui se prétend libéré de justifier du fait qui a produit l'extinction de son obligation.
La juridiction peut ordonner la publication, la diffusion ou l'affichage de sa décision ou d'un extrait de celle-ci selon les modalités qu'elle précise. Elle peut également ordonner l'insertion de la décision ou de l'extrait de celle-ci dans le rapport établi sur les opérations de l'exercice par les gérants, le conseil d'administration ou le directoire de l'entreprise. Les frais sont supportés par la personne condamnée.
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La juridiction peut ordonner l'exécution de sa décision sous astreinte.
Les litiges relatifs à l'application du présent article sont attribués aux juridictions dont le siège et le ressort sont fixés par décret.
Ces juridictions peuvent consulter la Commission d'examen des pratiques commerciales prévue à l'article L. 440-1 sur les pratiques définies au présent article et relevées dans les affaires dont celles-ci sont saisies. La décision de saisir la commission n'est pas susceptible de recours. La commission fait connaître son avis dans un délai maximum de quatre mois à compter de sa saisine. Il est sursis à toute décision sur le fond de l'affaire jusqu'à réception de l'avis ou, à défaut, jusqu'à l'expiration du délai de quatre mois susmentionné. Toutefois, des mesures urgentes ou conservatoires nécessaires peuvent être prises.L'avis rendu ne lie pas la juridiction.
IV.-Le juge des référés peut ordonner, au besoin sous astreinte, la cessation des pratiques abusives ou toute autre mesure provisoire.
Article L442-7
Aucune association ou coopérative d'entreprise ou d'administration ne peut, de façon habituelle, offrir des produits à la vente, les vendre ou fournir des services si ces activités ne sont pas prévues par ses statuts.
Article L442-8
Il est interdit à toute personne d'offrir à la vente des produits ou de proposer des services en utilisant, dans des conditions irrégulières, le domaine public de l'Etat, des collectivités locales et de leurs établissements publics.
Les infractions à l'interdiction mentionnée à l'alinéa précédent sont recherchées et constatées dans les conditions définies par les articles L. 450-1 à L. 450-3 et L. 450-8.
Les agents peuvent consigner, dans des locaux qu'ils déterminent et pendant une durée qui ne peut être supérieure à un mois, les produits offerts à la vente et les biens ayant permis la vente des produits ou l'offre de services.
La consignation donne lieu à l'établissement immédiat d'un procès-verbal. Celui-ci comporte un inventaire des biens et des marchandises consignés ainsi que la mention de leur valeur. Il est communiqué dans les cinq jours de sa clôture au procureur de la République et à l'intéressé.
La juridiction peut ordonner la confiscation des produits offerts à la vente et des biens ayant permis la vente des produits ou l'offre de services. La juridiction peut condamner l'auteur de l'infraction à verser au Trésor public une somme correspondant à la valeur des produits consignés, dans le cas où il n'a pas été procédé à une saisie.
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Article L442-9
Engage la responsabilité de son auteur et l'oblige à réparer le préjudice causé le fait, pour tout producteur, commerçant, industriel ou personne immatriculée au répertoire des métiers, de pratiquer ou de faire pratiquer, en situation de crise conjoncturelle telle que définie par l'article L. 611-4 du code rural, des prix de première cession abusivement bas pour des produits figurant sur la liste prévue à l'article L. 441-2-1 du présent code.
Engage également la responsabilité de son auteur et l'oblige à réparer le préjudice causé le fait pour tout revendeur d'exiger de son fournisseur, en situation de forte hausse des cours de certaines matières premières agricoles, des prix de cession abusivement bas pour les produits agricoles périssables ou issus de cycles courts de production, d'animaux vifs, de carcasses, pour les produits de l'aquaculture, ainsi que pour les produits alimentaires de consommation courante issus de la première transformation de ces produits. Les conditions définissant la situation de forte hausse des cours de certaines matières premières agricoles ainsi que la liste des produits concernés sont fixées par décret.
Le III et le IV de l'article L. 442-6 sont applicables à l'action prévue par le présent article.
Article L442-10
I.-Est nul le contrat par lequel un fournisseur s'engage envers tout producteur, commerçant, industriel ou personne immatriculée au répertoire des métiers sur une offre de prix à l'issue d'enchères inversées à distance, organisées notamment par voie électronique, lorsque l'une au moins des règles suivantes n'a pas été respectée :
1° Préalablement aux enchères, l'acheteur ou la personne qui les organise pour son compte communique de façon transparente et non discriminatoire à l'ensemble des candidats admis à présenter une offre les éléments déterminants des produits ou des prestations de services qu'il entend acquérir, ses conditions et modalités d'achat, ses critères de sélection détaillés ainsi que les règles selon lesquelles les enchères vont se dérouler ;
2° A l'issue de la période d'enchères, l'identité du candidat retenu est révélée au candidat qui, ayant participé à l'enchère, en fait la demande. Si l'auteur de l'offre sélectionnée est défaillant, nul n'est tenu de reprendre le marché au dernier prix ni à la dernière enchère.
II.-L'acheteur ou la personne qui organise les enchères pour son compte effectue un enregistrement du déroulement des enchères qu'il conserve pendant un an. Il est présenté s'il est procédé à une enquête dans les conditions prévues au titre V du présent livre.
III.-Les enchères à distance inversées organisées par l'acheteur ou par son représentant sont interdites pour les produits agricoles figurant sur une liste établie par décret, ainsi que pour les produits alimentaires de consommation courante issus de la première transformation de ces produits.
IV.-Le fait de ne pas respecter les dispositions des I à III engage la responsabilité de son auteur et l'oblige à réparer le préjudice causé. Les dispositions des III et IV de l'article L. 442-6 sont applicables aux opérations visées aux I à III du présent article.
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Chapitre III : Autres pratiques prohibées.
Article L443-1
A peine d'une amende de 75 000 euros, le délai de paiement, par tout producteur, revendeur ou prestataire de services, ne peut être supérieur :
1° A trente jours après la fin de la décade de livraison pour les achats de produits alimentaires périssables et de viandes congelées ou surgelées, de poissons surgelés, de plats cuisinés et de conserves fabriqués à partir de produits alimentaires périssables, à l'exception des achats de produits saisonniers effectués dans le cadre de contrats dits de culture visés aux articles L. 326-1 à L. 326-3 du code rural ;
2° A vingt jours après le jour de livraison pour les achats de bétail sur pied destiné à la consommation et de viandes fraîches dérivées ;
3° A trente jours après la fin du mois de livraison pour les achats de boissons alcooliques passibles des droits de consommation prévus à l'article 403 du code général des impôts ;
4° A défaut d'accords interprofessionnels conclus en application du livre VI du code rural et rendus obligatoires par voie réglementaire à tous les opérateurs sur l'ensemble du territoire métropolitain ou de décisions interprofessionnelles prises en application de la loi du 12 avril 1941 portant création d'un comité interprofessionnel du vin de Champagne pour ce qui concerne les délais de paiement, à quarante-cinq jours fin de mois ou soixante jours à compter de la date d'émission de la facture pour les achats de raisins et de moûts destinés à l'élaboration de vins ainsi que de boissons alcooliques passibles des droits de circulation prévus à l'article 438 du même code.
Article L443-2
I. - Est puni de deux ans d'emprisonnement et de 30 000 euros d'amende le fait d'opérer la hausse ou la baisse artificielle soit du prix de biens ou de services, soit d'effets publics ou privés, notamment à l'occasion d'enchères à distance :
1° En diffusant, par quelque moyen que ce soit, des informations mensongères ou calomnieuses ;
2° En introduisant sur le marché ou en sollicitant soit des offres destinées à troubler les cours, soit des sur-offres ou sous-offres faites aux prix demandés par les vendeurs ou prestataires de services ;
3° Ou en utilisant tout autre moyen frauduleux.
La tentative est punie des mêmes peines.
II. - Lorsque la hausse ou la baisse artificielle des prix concerne des produits alimentaires, la peine est portée à trois ans d'emprisonnement et 45000 euros d'amende.
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III. - Les personnes physiques coupables des infractions prévues au présent article encourent également les peines complémentaires suivantes :
1° L'interdiction des droits civiques, civils et de famille, suivant les modalités de l'article 131-26 du code pénal ;
2° L'affichage ou la diffusion de la décision prononcée dans les conditions prévues par l'article 131-35 du code pénal.
Article L443-3
Les personnes morales déclarées pénalement responsables des infractions prévues aux I et II de l'article L. 443-2 encourent les peines mentionnées aux 2° à 6° et 9° de l'article 131-39 du code pénal. L'interdiction mentionnée au 2° de l'article 131-39 du même code porte sur l'activité dans l'exercice ou à l'occasion de l'exercice de laquelle l'infraction a été commise.
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Partie législative
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE V : Des pouvoirs d'enquête.
Article L450-1
I. - Les agents des services d'instruction de l'Autorité de la concurrence habilités à cet effet par le rapporteur général peuvent procéder à toute enquête nécessaire à l'application des dispositions des titres II et III du présent livre. Dans le cas où des investigations sont menées au nom ou pour le compte d'une autorité de concurrence d'un autre Etat membre, en application du 1 de l'article 22 du règlement n° 1 / 2003 du Conseil relatif à la mise en œuvre des règles de concurrence prévues aux articles 81 et 82 du traité instituant la Communauté européenne, le rapporteur général de l'Autorité de la concurrence peut autoriser des agents de l'autorité de concurrence de l'autre Etat membre à assister les agents mentionnés à l'alinéa précédent dans leurs investigations. Les modalités de cette assistance sont fixées par décret en Conseil d'Etat. II. - Des fonctionnaires habilités à cet effet par le ministre chargé de l'économie peuvent procéder aux enquêtes nécessaires à l'application des dispositions du présent livre. Des fonctionnaires de catégorie A relevant du ministre chargé de l'économie, spécialement habilités à cet effet par le garde des sceaux, ministre de la justice, sur la proposition du ministre chargé de l'économie, peuvent recevoir des juges d'instruction des commissions rogatoires. III. - Les agents mentionnés aux I et II peuvent exercer les pouvoirs qu'ils tiennent du présent article et des articles suivants sur l'ensemble du territoire national.
Article L450-2
Les enquêtes donnent lieu à l'établissement de procès-verbaux et, le cas échéant, de rapports.
Les procès-verbaux sont transmis à l'autorité compétente. Un double en est laissé aux parties intéressées. Ils font foi jusqu'à preuve contraire.
Article L450-3
Les agents mentionnés à l'article L. 450-1 peuvent accéder à tous locaux, terrains ou moyens de transport à usage professionnel, demander la communication des livres, factures et tous autres documents professionnels et en obtenir ou prendre copie par tous moyens et sur tous supports, recueillir sur convocation ou sur place les renseignements et justifications.
Ils peuvent demander à l'autorité dont ils dépendent de désigner un expert pour procéder à toute expertise contradictoire nécessaire.
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Article L450-4
Les agents mentionnés à l'article L. 450-1 ne peuvent procéder aux visites en tous lieux ainsi qu'à la saisie de documents et de tout support d'information que dans le cadre d'enquêtes demandées par la Commission européenne, le ministre chargé de l'économie ou le rapporteur général de l'Autorité de la concurrence sur proposition du rapporteur, sur autorisation judiciaire donnée par ordonnance du juge des libertés et de la détention du tribunal de grande instance dans le ressort duquel sont situés les lieux à visiter. Ils peuvent également, dans les mêmes conditions, procéder à la pose de scellés sur tous locaux commerciaux, documents et supports d'information dans la limite de la durée de la visite de ces locaux. Lorsque ces lieux sont situés dans le ressort de plusieurs juridictions et qu'une action simultanée doit être menée dans chacun d'eux, une ordonnance unique peut être délivrée par l'un des juges des libertés et de la détention compétents.
Le juge doit vérifier que la demande d'autorisation qui lui est soumise est fondée ; cette demande doit comporter tous les éléments d'information en possession du demandeur de nature à justifier la visite. Lorsque la visite vise à permettre la constatation d'infractions aux dispositions du livre IV du présent code en train de se commettre, la demande d'autorisation peut ne comporter que les indices permettant de présumer, en l'espèce, l'existence des pratiques dont la preuve est recherchée.
La visite et la saisie s'effectuent sous l'autorité et le contrôle du juge qui les a autorisées. Il désigne le chef du service qui devra nommer les officiers de police judiciaire chargés d'assister à ces opérations et d'apporter leur concours en procédant le cas échéant aux réquisitions nécessaires, ainsi que de le tenir informé de leur déroulement. Lorsqu'elles ont lieu en dehors du ressort de son tribunal de grande instance, il délivre une commission rogatoire pour exercer ce contrôle au juge des libertés et de la détention dans le ressort duquel s'effectue la visite.
Le juge peut se rendre dans les locaux pendant l'intervention. A tout moment, il peut décider la suspension ou l'arrêt de la visite.
L'ordonnance est notifiée verbalement et sur place au moment de la visite à l'occupant des lieux ou à son représentant qui en reçoit copie intégrale contre récépissé ou émargement au procès-verbal. L'ordonnance comporte la mention de la faculté pour l'occupant des lieux ou son représentant de faire appel à un conseil de son choix. L'exercice de cette faculté n'entraîne pas la suspension des opérations de visite et saisie. En l'absence de l'occupant des lieux, l'ordonnance est notifiée après les opérations par lettre recommandée avec avis de réception. Il en va de même lorsqu'il n'est pas procédé à la visite dans un des lieux visés par l'ordonnance. La notification est réputée faite à la date de réception figurant sur l'avis.
L'ordonnance mentionnée au premier alinéa peut faire l'objet d'un appel devant le premier président de la cour d'appel dans le ressort de laquelle le juge a autorisé la mesure, suivant les règles prévues par le code de procédure pénale. Le ministère public et la personne à l'encontre de laquelle a été ordonnée cette mesure peuvent interjeter appel. Cet appel est formé par déclaration au greffe du tribunal de grande instance dans un délai de dix jours à compter de la notification de l'ordonnance. L'appel n'est pas suspensif. L'ordonnance du premier président de la cour d'appel est susceptible d'un pourvoi en cassation selon les règles prévues par le code de procédure pénale. Les pièces saisies sont conservées jusqu'à ce qu'une décision soit devenue définitive.
La visite, qui ne peut commencer avant six heures ou après vingt et une heures, est effectuée en présence de l'occupant des lieux ou de son représentant. L'occupant des lieux peut désigner un ou plusieurs représentants pour assister à la visite et signer le procès-verbal. En cas d'impossibilité, l'officier de police judiciaire requiert deux témoins choisis en dehors des personnes relevant de son
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autorité, de celle de l'administration de la direction générale de la concurrence, de la consommation et de la répression des fraudes ou de celle de l'Autorité de la concurrence.
Les agents mentionnés à l'article L. 450-1, l'occupant des lieux ou son représentant ainsi que l'officier de police judiciaire et, le cas échéant, les agents et autres personnes mandatés par la Commission européenne peuvent seuls prendre connaissance des pièces et documents avant leur saisie. Les agents mentionnés à l'article L. 450-1 peuvent procéder au cours de la visite à des auditions de l'occupant des lieux ou de son représentant en vue de recueillir les informations ou explications utiles aux besoins de l'enquête.
Les inventaires et mises sous scellés sont réalisés conformément à l'article 56 du code de procédure pénale.
Les originaux du procès-verbal et de l'inventaire sont transmis au juge qui a ordonné la visite. Une copie du procès-verbal et de l'inventaire est remise à l'occupant des lieux ou à son représentant. Une copie est également adressée par lettre recommandée avec demande d'avis de réception aux personnes mises en cause ultérieurement par les pièces saisies au cours de l'opération.
Les pièces et documents saisis sont restitués à l'occupant des lieux, dans un délai de six mois à compter de la date à laquelle la décision de l'Autotrité de la concurrence est devenue définitive. L'occupant des lieux est mis en demeure, par lettre recommandée avec avis de réception, de venir les rechercher, dans un délai de deux mois. A l'expiration de ce délai et à défaut de diligences de sa part, les pièces et documents lui sont restitués, à ses frais.
Le déroulement des opérations de visite et saisie peut faire l'objet d'un recours devant le premier président de la cour d'appel dans le ressort de laquelle le juge a autorisé ces dernières, suivant les règles prévues par le code de procédure pénale. Le ministère public, la personne à l'encontre de laquelle a été prise l'ordonnance mentionnée au premier alinéa et les personnes mises en cause au moyen de pièces saisies au cours de ces opérations peuvent former ce recours. Ce dernier est formalisé par déclaration au greffe du tribunal de grande instance dans un délai de dix jours à compter de la remise ou de la réception du procès-verbal et de l'inventaire, ou, pour les personnes n'ayant pas fait l'objet de visite et de saisie et qui sont mises en cause, à compter de la date à laquelle elles ont reçu notification du procès-verbal et de l'inventaire et, au plus tard à compter de la notification de griefs prévue à l'article L. 463-2. Le recours n'est pas suspensif. L'ordonnance du premier président de la cour d'appel est susceptible d'un pourvoi en cassation selon les règles prévues par le code de procédure pénale. Les pièces saisies sont conservées jusqu'à ce qu'une décision soit devenue définitive.
Article L450-5
Le rapporteur général de l'Autorité de la concurrence est informé avant leur déclenchement des investigations que le ministre chargé de l'économie souhaite voir diligenter sur des faits susceptibles de relever des articles L. 420-1, L. 420-2 et L. 420-5 et peut, dans un délai fixé par décret, en prendre la direction. Le rapporteur général est informé sans délai du résultat des investigations menées par les services du ministre. Il peut, dans un délai fixé par décret, proposer à l'Autorité de se saisir d'office.
Article L450-6
Le rapporteur général désigne, pour l'examen de chaque affaire, un ou plusieurs agents des services d'instruction aux fonctions de rapporteur.A sa demande écrite, l'autorité dont dépendent les agents
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mentionnés au II de l'article L. 450-1 met sans délai à sa disposition, en nombre et pour la durée qu'il a indiqués, les agents nécessaires à la réalisation des opérations mentionnées à l'article L. 450-4.
Article L450-7
Les agents mentionnés à l'article L. 450-1 peuvent, sans se voir opposer le secret professionnel, accéder à tout document ou élément d'information détenu par les services et établissements de l'Etat et des autres collectivités publiques.
Article L450-8
Est puni d'un emprisonnement de six mois et d'une amende de 7500 euros le fait pour quiconque de s'opposer, de quelque façon que ce soit, à l'exercice des fonctions dont les agents mentionnés à l'article L. 450-1 sont chargés en application du présent livre.
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Partie législative
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE VI : De l'Autorité de la concurrence.
Chapitre Ier : De l'organisation.
Article L461-1
I. - L'Autorité de la concurrence est une autorité administrative indépendante. Elle veille au libre jeu de la concurrence. Elle apporte son concours au fonctionnement concurrentiel des marchés aux échelons européen et international.
II. - Les attributions confiées à l'Autorité de la concurrence sont exercées par un collège composé de dix-sept membres, dont un président, nommés pour une durée de cinq ans par décret pris sur le rapport du ministre chargé de l'économie.
Le président est nommé en raison de ses compétences dans les domaines juridique et économique, après avis des commissions du Parlement compétentes en matière de concurrence.
Le collège comprend également :
1° Six membres ou anciens membres du Conseil d'Etat, de la Cour de cassation, de la Cour des comptes ou des autres juridictions administratives ou judiciaires ;
2° Cinq personnalités choisies en raison de leur compétence en matière économique ou en matière de concurrence et de consommation ;
3° Cinq personnalités exerçant ou ayant exercé leurs activités dans les secteurs de la production, de la distribution, de l'artisanat, des services ou des professions libérales.
Quatre vice-présidents sont désignés parmi les membres du collège, dont au moins deux parmi les personnalités mentionnées aux 2° et 3°.
III. - Le mandat des membres du collège est renouvelable, à l'exception de celui du président qui n'est renouvelable qu'une seule fois.
Article L461-2
Le président et les vice-présidents exercent leurs fonctions à plein temps. Ils sont soumis aux règles d'incompatibilité prévues pour les emplois publics.
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Est déclaré démissionnaire d'office par le ministre chargé de l'économie tout membre de l'autorité qui n'a pas participé, sans motif valable, à trois séances consécutives ou qui ne remplit pas les obligations prévues aux troisième et quatrième alinéas. Il peut également être mis fin aux fonctions d'un membre de l'autorité en cas d'empêchement constaté par le collège dans des conditions prévues par son règlement intérieur.
Tout membre de l'autorité doit informer le président des intérêts qu'il détient ou vient à acquérir et des fonctions qu'il exerce dans une activité économique.
Aucun membre de l'autorité ne peut délibérer dans une affaire où il a un intérêt ou s'il représente ou a représenté une des parties intéressées. Le commissaire du Gouvernement auprès de l'autorité est désigné par le ministre chargé de l'économie.
Article L461-3
L'Autorité de la concurrence peut siéger soit en formation plénière, soit en sections, soit en commission permanente. La commission permanente est composée du président et des quatre vice-présidents.
Les formations de l'autorité délibèrent à la majorité des membres présents. Le règlement intérieur de l'autorité détermine les critères de quorum applicables à chacune de ces formations.
En cas de partage égal des voix, la voix du président de la formation est prépondérante.
Le président, ou un vice-président désigné par lui, peut adopter seul les décisions prévues à l'article L. 462-8, ainsi que celles prévues aux articles L. 464-2 à L. 464-6 quand elles visent des faits dont l'Autorité de la concurrence a été saisie par le ministre en application du quatrième alinéa de l'article L. 464-9. Il peut faire de même s'agissant des décisions prévues à l'article L. 430-5.
Article L461-4
L'Autorité de la concurrence dispose de services d'instruction dirigés par un rapporteur général nommé par arrêté du ministre chargé de l'économie après avis du collège.
Ces services procèdent aux investigations nécessaires à l'application des titres II et III du présent livre.
Les rapporteurs généraux adjoints, les rapporteurs permanents ou non permanents et les enquêteurs des services d'instruction sont nommés par le rapporteur général, par décision publiée au Journal officiel.
Un conseiller auditeur possédant la qualité de magistrat ou offrant des garanties d'indépendance et d'expertise équivalentes est nommé par arrêté du ministre chargé de l'économie après avis du collège. Il recueille, le cas échéant, les observations des parties mises en cause et saisissantes sur le déroulement des procédures les concernant dès l'envoi de la notification des griefs. Il transmet au président de l'autorité un rapport évaluant ces observations et proposant, si nécessaire, tout acte permettant d'améliorer l'exercice de leurs droits par les parties.
Les modalités d'intervention du conseiller auditeur sont précisées par décret en Conseil d'Etat.
Les crédits attribués à l'Autorité de la concurrence pour son fonctionnement sont inscrits dans un
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programme relevant du ministère chargé de l'économie. La loi du 10 août 1922 relative à l'organisation du contrôle des dépenses engagées n'est pas applicable à leur gestion.
Le président est ordonnateur des recettes et des dépenses de l'autorité. Il délègue l'ordonnancement des dépenses des services d'instruction au rapporteur général.
Un décret en Conseil d'Etat détermine les conditions dans lesquelles le président de l'autorité la représente dans tous les actes de la vie civile et a qualité pour agir en justice en son nom.
Article L461-5
Les commissions du Parlement compétentes en matière de concurrence peuvent entendre le président de l'Autorité de la concurrence et consulter celle-ci sur toute question entrant dans le champ de ses compétences. Le président de l'Autorité de la concurrence rend compte des activités de celle-ci devant les commissions du Parlement compétentes en matière de concurrence, à leur demande. L'Autorité de la concurrence établit chaque année, avant le 30 juin, un rapport public rendant compte de son activité qu'elle adresse au Gouvernement et au Parlement.
Chapitre II : Des attributions.
Article L462-1
L'Autorité de la concurrence peut être consultée par les commissions parlementaires sur les propositions de loi ainsi que sur toute question concernant la concurrence.
Elle donne son avis sur toute question de concurrence à la demande du Gouvernement. Elle peut également donner son avis sur les mêmes questions à la demande des collectivités territoriales, des organisations professionnelles et syndicales, des organisations de consommateurs agréées, des chambres d'agriculture, des chambres de métiers ou des chambres de commerce et d' industrie, de la Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet, en ce qui concerne les intérêts dont elles ont la charge.
Article L462-2
L'Autorité est obligatoirement consultée par le Gouvernement sur tout projet de texte réglementaire instituant un régime nouveau ayant directement pour effet :
1° De soumettre l'exercice d'une profession ou l'accès à un marché à des restrictions quantitatives ;
2° D'établir des droits exclusifs dans certaines zones ;
3° D'imposer des pratiques uniformes en matière de prix ou de conditions de vente.
Article L462-3
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L'Autorité peut être consultée par les juridictions sur les pratiques anticoncurrentielles définies aux articles L. 420-1, L. 420-2 et L. 420-5 ainsi qu'aux articles 81 et 82 du traité instituant la Communauté européenne et relevées dans les affaires dont elles sont saisies. Elle ne peut donner un avis qu'après une procédure contradictoire. Toutefois, si elle dispose d'informations déjà recueillies au cours d'une procédure antérieure, elle peut émettre son avis sans avoir à mettre en oeuvre la procédure prévue au présent texte.
Le cours de la prescription est suspendu, le cas échéant, par la consultation de l'Autorité.
L'avis de l'Autorité peut être publié après le non-lieu ou le jugement.
Article L462-4
L'Autorité de la concurrence peut prendre l'initiative de donner un avis sur toute question concernant la concurrence. Cet avis est rendu public. Elle peut également recommander au ministre chargé de l'économie ou au ministre chargé du secteur concerné de mettre en œuvre les mesures nécessaires à l'amélioration du fonctionnement concurrentiel des marchés.
Article L462-5
I.-L'Autorité de la concurrence peut être saisie par le ministre chargé de l'économie de toute pratique mentionnée aux articles L. 420-1, L. 420-2 et L. 420-5, ou de faits susceptibles de constituer une telle pratique, ainsi que des manquements aux engagements pris en application de l'article L. 430-7-1 ou pris en application des décisions de concentration intervenues avant l'entrée en vigueur de l'ordonnance n° 2008-1161 du 13 novembre 2008 portant modernisation de la régulation de la concurrence. II.-Pour toutes les pratiques mentionnées aux articles L. 420-1, L. 420-2 et L. 420-5, l'Autorité de la concurrence peut être saisie par les entreprises ou, pour toute affaire qui concerne les intérêts dont ils ont la charge, par les organismes mentionnés au deuxième alinéa de l'article L. 462-1. III.-Le rapporteur général peut proposer à l'Autorité de la concurrence de se saisir d'office des pratiques mentionnées aux I et II et à l'article L. 430-8 ainsi que des manquements aux engagements pris en application des décisions autorisant des opérations de concentration intervenues avant l'entrée en vigueur de l'ordonnance n° 2008-1161 du 13 novembre 2008 portant modernisation de la régulation de la concurrence.
Article L462-6
L'Autorité de la concurrence examine si les pratiques dont elle est saisie entrent dans le champ des articles L. 420-1, L. 420-2 ou L. 420-5 ou peuvent se trouver justifiées par application de l'article L. 420-4. Elle prononce, le cas échéant, des sanctions et des injonctions.
Lorsque les faits lui paraissent de nature à justifier l'application de l'article L. 420-6, elle adresse le dossier au procureur de la République. Cette transmission interrompt la prescription de l'action publique.
La prescription est interrompue également lorsque les faits visés dans la saisine font l'objet d'un acte tendant à leur recherche, leur constatation ou leur sanction par la Commission européenne ou par
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une autorité de concurrence d'un autre Etat membre de la Communauté européenne.
Article L462-7
L'Autorité ne peut être saisie de faits remontant à plus de cinq ans s'il n'a été fait aucun acte tendant à leur recherche, leur constatation ou leur sanction.
Les actes interruptifs de la prescription de l'action publique en application de l'article L. 420-6 sont également interruptifs de la prescription devant l'Autorité de la concurrence.
Toutefois, la prescription est acquise en toute hypothèse lorsqu'un délai de dix ans à compter de la cessation de la pratique anticoncurrentielle s'est écoulé sans que l'Autorité de la concurrence ait statué sur celle-ci.
Article L462-8
l'Autorité de la concurrence peut déclarer, par décision motivée, la saisine irrecevable pour défaut d'intérêt ou de qualité à agir de l'auteur de celle-ci, ou si les faits sont prescrits au sens de l'article L. 462-7, ou si elle estime que les faits invoqués n'entrent pas dans le champ de sa compétence.
Elle peut aussi rejeter la saisine par décision motivée lorsqu'elle estime que les faits invoqués ne sont pas appuyés d'éléments suffisamment probants.
Elle peut aussi rejeter la saisine dans les mêmes conditions, lorsqu'elle est informée qu'une autre autorité nationale de concurrence d'un Etat membre de la Communauté européenne ou la Commission européenne a traité des mêmes faits relevant des dispositions prévues aux articles 81 et 82 du traité instituant la Communauté européenne.
Elle peut aussi rejeter la saisine dans les mêmes conditions ou suspendre la procédure, lorsqu'elle est informée qu'une autre autorité nationale de concurrence d'un Etat membre de la Communauté européenne traite des mêmes faits relevant des dispositions prévues aux articles 81 et 82 du traité instituant la Communauté européenne. Lorsque cette information est reçue par le rapporteur au stade de l'instruction, le rapporteur général peut suspendre son déroulement.
l'Autorité de la concurrence peut aussi décider de clore dans les mêmes conditions une affaire pour laquelle elle s'était saisie d'office.
Il est donné acte, par décision du président de l'Autorité de la concurrence ou d'un vice-président délégué par lui, des désistements des parties ou des dessaisissements effectués par la Commission européenne. En cas de désistement, l'Autorité peut poursuivre l'affaire, qui est alors traitée comme une saisine d'office.
Article L462-9
I.- L'Autorité de la concurrence peut, pour ce qui relève de ses compétences et après information préalable du ministre chargé de l'économie, communiquer les informations ou les documents qu'elle détient ou qu'elle recueille, à leur demande, à la Commission des Communautés européennes ou aux autorités des autres Etats exerçant des compétences analogues, à leur demande, sous réserve de
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réciprocité, et à condition que l'autorité étrangère compétente soit soumise au secret professionnel avec les mêmes garanties qu'en France.
L'Autorité de la concurrence peut, dans les mêmes conditions, selon les mêmes procédures et sous les mêmes sanctions que celles prévues pour l'exécution de sa mission, conduire ou demander au ministre chargé de l'économie de conduire des enquêtes, à la demande d'autorités étrangères exerçant des compétences analogues, sous réserve de réciprocité.
L'obligation de secret professionnel ne fait pas obstacle à la communication par les autorités de concurrence des informations ou documents qu'elles détiennent ou qu'elles recueillent, à leur demande, à la Commission des Communautés européennes et aux autorités des autres Etats exerçant des compétences analogues et astreintes aux mêmes obligations de secret professionnel.
L'assistance demandée par une autorité étrangère exerçant des compétences analogues pour la conduite d'enquêtes ou la transmission d'informations détenues ou recueillies par l'Autorité de la concurrence est refusée par celle-ci lorsque l'exécution de la demande est de nature à porter atteinte à la souveraineté, à la sécurité, aux intérêts économiques essentiels ou à l'ordre public français ou lorsqu'une procédure pénale a déjà été engagée en France sur la base des mêmes faits et contre les mêmes personnes, ou bien lorsque celles-ci ont déjà été sanctionnées par une décision définitive pour les mêmes faits.
Les autorités de concurrence, pour ce qui relève de leurs compétences respectives, peuvent utiliser des informations ou des documents qui leur auront été transmis dans les mêmes conditions par la Commission des Communautés européennes ou les autorités des autres Etats membres exerçant des compétences analogues.
L'Autorité de la concurrence peut, pour la mise en oeuvre du présent article, conclure des conventions organisant ses relations avec les autorités des autres Etats exerçant des compétences analogues. Ces conventions sont approuvées par l'Autorité dans les conditions prévues à l'article L. 463-7. Elles sont publiées au Journal officiel.
II.-Dans la mise en oeuvre des règles de concurrence prévues aux articles 81 et 82 du traité instituant la Communauté européenne, les autorités de concurrence appliquent les dispositions du règlement n° 1 / 2003 du Conseil relatif à la mise en oeuvre des règles de concurrence prévues aux articles 81 et 82 du traité instituant la Communauté européenne, à l'exclusion des dispositions des cinq premiers alinéas du I du présent article.
Pour l'application des dispositions du 4 de l'article 11 de ce règlement, l'Autorité de la concurrence transmet à la Commission européenne un résumé de l'affaire ainsi qu'un document exposant l'orientation envisagée, qui peut être la notification de griefs ou le rapport mentionnés à l'article L. 463-2. Elle peut mettre ces mêmes documents à la disposition des autres autorités de concurrence des Etats membres de la Communauté européenne.
Chapitre III : De la procédure.
Article L463-1
L'instruction et la procédure devant l'Autorité de la concurrence sont pleinement contradictoires sous réserve des dispositions prévues à l'article L. 463-4.
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Article L463-2
Sans préjudice des mesures prévues à l'article L. 464-1, le rapporteur général ou un rapporteur général adjoint désigné par lui notifie les griefs aux intéressés ainsi qu'au commissaire du Gouvernement, qui peuvent consulter le dossier sous réserve des dispositions de l'article L. 463-4 et présenter leurs observations dans un délai de deux mois. Les entreprises destinataires des griefs signalent sans délai au rapporteur chargé du dossier, à tout moment de la procédure d'investigation, toute modification de leur situation juridique susceptible de modifier les conditions dans lesquelles elles sont représentées ou dans lesquelles les griefs peuvent leur être imputés. Elles sont irrecevables à s'en prévaloir si elles n'ont pas procédé à cette information.
Le rapport est ensuite notifié aux parties, au commissaire du Gouvernement et aux ministres intéressés. Il est accompagné des documents sur lesquels se fonde le rapporteur et des observations faites, le cas échéant, par les intéressés.
Les parties ont un délai de deux mois pour présenter un mémoire en réponse qui peut être consulté dans les quinze jours qui précèdent la séance par les personnes visées à l'alinéa précédent.
Lorsque des circonstances exceptionnelles le justifient, le rapporteur général de l'Autorité peut, par une décision non susceptible de recours, accorder un délai supplémentaire d'un mois pour la consultation du dossier et la production des observations des parties.
Article L463-3
Le rapporteur général de l'Autorité de la concurrence peut, lors de la notification des griefs aux parties intéressées, décider que l'affaire sera examinée par l'Autorité sans établissement préalable d'un rapport. Cette décision est notifiée aux parties.
Article L463-4
Sauf dans les cas où la communication ou la consultation de ces documents est nécessaire à l'exercice des droits de la défense d'une partie mise en cause, le rapporteur général de l'Autorité de la concurrence peut refuser à une partie la communication ou la consultation de pièces ou de certains éléments contenus dans ces pièces mettant en jeu le secret des affaires d'autres personnes. Dans ce cas, une version non confidentielle et un résumé des pièces ou éléments en cause lui sont accessibles. Un décret en Conseil d'Etat précise les modalités d'application du présent article.
Article L463-5
Les juridictions d'instruction et de jugement peuvent communiquer à l'Autorité de la concurrence, sur sa demande, les procès-verbaux rapports d'enquête ou autres pièces de l'instruction pénale ayant un lien direct avec des faits dont l'Autorité est saisie.
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Article L463-6
Est punie des peines prévues à l'article 226-13 du code pénal, la divulgation par l'une des parties des informations concernant une autre partie ou un tiers et dont elle n'a pu avoir connaissance qu'à la suite des communications ou consultations auxquelles il a été procédé.
Article L463-7
Les séances de l'Autorité de la concurrence ne sont pas publiques. Seules les parties et le commissaire du Gouvernement peuvent y assister. Les parties peuvent demander à être entendues par l'Autorité et se faire représenter ou assister.
L'Autorité de la concurrence peut entendre toute personne dont l'audition lui paraît susceptible de contribuer à son information.
Le rapporteur général, ou le rapporteur général adjoint désigné par lui et le commissaire du Gouvernement peuvent présenter des observations.
Le rapporteur général, ou le rapporteur général adjoint désigné par lui et le rapporteur assistent au délibéré, sans voix délibérative, sauf lorsque l'Autorité statue sur des pratiques dont elle a été saisie en application de l'article L. 462-5.
Article L463-8
Le rapporteur général peut décider de faire appel à des experts en cas de demande formulée à tout moment de l'instruction par le rapporteur ou une partie. Cette décision n'est susceptible d'aucun recours.
La mission et le délai imparti à l'expert sont précisés dans la décision qui le désigne. Le déroulement des opérations d'expertise se fait de façon contradictoire.
Le financement de l'expertise est à la charge de la partie qui la demande ou à celle du conseil dans le cas où elle est ordonnée à la demande du rapporteur. Toutefois, le conseil peut, dans sa décision sur le fond, faire peser la charge définitive sur la ou les parties sanctionnées dans des proportions qu'il détermine.
Chapitre IV : Des décisions et des voies de recours.
Article L464-1
L'Autorité de la concurrence peut, à la demande du ministre chargé de l'économie, des personnes
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mentionnées au dernier alinéa de l'article L. 462-1 ou des entreprises et après avoir entendu les parties en cause et le commissaire du Gouvernement, prendre les mesures conservatoires qui lui sont demandées ou celles qui lui apparaissent nécessaires.
Ces mesures ne peuvent intervenir que si la pratique dénoncée porte une atteinte grave et immédiate à l'économie générale, à celle du secteur intéressé, à l'intérêt des consommateurs ou à l'entreprise plaignante.
Elles peuvent comporter la suspension de la pratique concernée ainsi qu'une injonction aux parties de revenir à l'état antérieur. Elles doivent rester strictement limitées à ce qui est nécessaire pour faire face à l'urgence.
Article L464-2
I.- L'Autorité de la concurrence peut ordonner aux intéressés de mettre fin aux pratiques anticoncurrentielles dans un délai déterminé ou imposer des conditions particulières. Elle peut aussi accepter des engagements proposés par les entreprises ou organismes et de nature à mettre un terme à ses préoccupations de concurrence susceptibles de constituer des pratiques prohibées visées aux articles L. 420-1, L. 420-2 et L. 420-5.
Elle peut infliger une sanction pécuniaire applicable soit immédiatement, soit en cas d'inexécution des injonctions soit en cas de non-respect des engagements qu'elle a acceptés.
Les sanctions pécuniaires sont proportionnées à la gravité des faits reprochés, à l'importance du dommage causé à l'économie, à la situation de l'organisme ou de l'entreprise sanctionné ou du groupe auquel l'entreprise appartient et à l'éventuelle réitération de pratiques prohibées par le présent titre. Elles sont déterminées individuellement pour chaque entreprise ou organisme sanctionné et de façon motivée pour chaque sanction.
Si le contrevenant n'est pas une entreprise, le montant maximum de la sanction est de 3 millions d'euros. Le montant maximum de la sanction est, pour une entreprise, de 10 % du montant du chiffre d'affaires mondial hors taxes le plus élevé réalisé au cours d'un des exercices clos depuis l'exercice précédant celui au cours duquel les pratiques ont été mises en oeuvre. Si les comptes de l'entreprise concernée ont été consolidés ou combinés en vertu des textes applicables à sa forme sociale, le chiffre d'affaires pris en compte est celui figurant dans les comptes consolidés ou combinés de l'entreprise consolidante ou combinante.
L'Autorité de la concurrence peut ordonner la publication, la diffusion ou l'affichage de sa décision ou d'un extrait de celle-ci selon les modalités qu'elle précise. Elle peut également ordonner l'insertion de la décision ou de l'extrait de celle-ci dans le rapport établi sur les opérations de l'exercice par les gérants, le conseil d'administration ou le directoire de l'entreprise. Les frais sont supportés par la personne intéressée.
II.- L'Autorité de la concurrence peut infliger aux intéressés des astreintes dans la limite de 5 % du chiffre d'affaires journalier moyen, par jour de retard à compter de la date qu'elle fixe, pour les contraindre :
a) A exécuter une décision les ayant obligés à mettre fin aux pratiques anticoncurrentielles, à exécuter une décision ayant imposé des conditions particulières ou à respecter une décision ayant rendu un engagement obligatoire en vertu du I ;
b) A respecter les mesures prononcées en application de l'article L. 464-1.
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Le chiffre d'affaires pris en compte est calculé sur la base des comptes de l'entreprise relatifs au dernier exercice clos à la date de la décision. L'astreinte est liquidée par l'Autorité de la concurrence qui en fixe le montant définitif.
III.-Lorsqu'un organisme ou une entreprise ne conteste pas la réalité des griefs qui lui sont notifiés, le rapporteur général peut proposer à l'Autorité de la concurrence, qui entend les parties et le commissaire du Gouvernement sans établissement préalable d'un rapport, de prononcer la sanction pécuniaire prévue au I en tenant compte de l'absence de contestation. Dans ce cas, le montant maximum de la sanction encourue est réduit de moitié. Lorsque l'entreprise ou l'organisme s'engage en outre à modifier son comportement pour l'avenir, le rapporteur général peut proposer à l'Autorité de la concurrence d'en tenir compte également dans la fixation du montant de la sanction.
IV.-Une exonération totale ou partielle des sanctions pécuniaires peut être accordée à une entreprise ou à un organisme qui a, avec d'autres, mis en oeuvre une pratique prohibée par les dispositions de l'article L. 420-1 s'il a contribué à établir la réalité de la pratique prohibée et à identifier ses auteurs, en apportant des éléments d'information dont l'Autorité ou l'administration ne disposaient pas antérieurement. A la suite de la démarche de l'entreprise ou de l'organisme, l'Autorité de la concurrence, à la demande du rapporteur général ou du ministre chargé de l'économie, adopte à cette fin un avis de clémence, qui précise les conditions auxquelles est subordonnée l'exonération envisagée, après que le commissaire du Gouvernement et l'entreprise ou l'organisme concerné ont présenté leurs observations ; cet avis est transmis à l'entreprise ou à l'organisme et au ministre, et n'est pas publié. Lors de la décision prise en application du I du présent article, l'Autorité peut, si les conditions précisées dans l'avis de clémence ont été respectées, accorder une exonération de sanctions pécuniaires proportionnée à la contribution apportée à l'établissement de l'infraction.
V.-Lorsqu'une entreprise ou un organisme ne défère pas à une convocation ou ne répond pas dans le délai prescrit à une demande de renseignements ou de communication de pièces formulée par un des agents visés au I de l'article L. 450-1 dans l'exercice des pouvoirs qui lui sont conférés par les titres V et VI du livre IV, l'Autorité peut, à la demande du rapporteur général, prononcer à son encontre une injonction assortie d'une astreinte, dans la limite prévue au II.
Lorsqu'une entreprise a fait obstruction à l'investigation ou à l'instruction, notamment en fournissant des renseignements incomplets ou inexacts, ou en communiquant des pièces incomplètes ou dénaturées, l'Autorité peut, à la demande du rapporteur général, et après avoir entendu l'entreprise en cause et le commissaire du Gouvernement, décider de lui infliger une sanction pécuniaire. Le montant maximum de cette dernière ne peut excéder 1 % du montant du chiffre d'affaires mondial hors taxes le plus élevé réalisé au cours d'un des exercices clos depuis l'exercice précédant celui au cours duquel les pratiques ont été mises en œuvre.
Article L464-3
Si les mesures, injonctions ou engagements prévus aux articles L. 464-1 et L. 464-2 ne sont pas respectés, l'Autorité peut prononcer une sanction pécuniaire dans les limites fixées à l'article L. 464-2.
Article L464-4
Les sanctions pécuniaires et les astreintes sont recouvrées comme les créances de l'Etat étrangères à l'impôt et au domaine.
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Article L464-5
L'Autorité, lorsqu'elle statue selon la procédure simplifiée prévue à l'article L. 463-3, peut prononcer les mesures prévues au I de l'article L. 464-2. Toutefois, la sanction pécuniaire ne peut excéder 750 000 euros pour chacun des auteurs de pratiques prohibées.
Article L464-6
Lorsque aucune pratique de nature à porter atteinte à la concurrence sur le marché n'est établie, l'Autorité de la concurrence peut décider, après que l'auteur de la saisine et le commissaire du Gouvernement ont été mis à même de consulter le dossier et de faire valoir leurs observations, qu'il n'y a pas lieu de poursuivre la procédure. Cette décision est motivée.
Article L464-6-1
L'Autorité de la concurrence peut également décider, dans les conditions prévues à l'article L. 464-6, qu'il n'y a pas lieu de poursuivre la procédure lorsque les pratiques mentionnées à l'article L. 420-1 ne visent pas des contrats passés en application du code des marchés publics et que la part de marché cumulée détenue par les entreprises ou organismes parties à l'accord ou à la pratique en cause ne dépasse pas soit :
a) 10 % sur l'un des marchés affectés par l'accord ou la pratique lorsqu'il s'agit d'un accord ou d'une pratique entre des entreprises ou organismes qui sont des concurrents, existants ou potentiels, sur l'un des marchés en cause ;
b) 15 % sur l'un des marchés affectés par l'accord ou la pratique lorsqu'il s'agit d'un accord ou d'une pratique entre des entreprises ou organismes qui ne sont pas concurrents existants ou potentiels sur l'un des marchés en cause.
Article L464-6-2
Toutefois, les dispositions de l'article L. 464-6-1 ne s'appliquent pas aux accords et pratiques qui contiennent l'une quelconque des restrictions caractérisées de concurrence suivantes :
a) Les restrictions qui, directement ou indirectement, isolément ou cumulées avec d'autres facteurs sur lesquels les parties peuvent influer ont pour objet la fixation de prix de vente, la limitation de la production ou des ventes, la répartition de marchés ou des clients ;
b) Les restrictions aux ventes non sollicitées et réalisées par un distributeur en dehors de son territoire contractuel au profit d'utilisateurs finaux ;
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c) Les restrictions aux ventes par les membres d'un réseau de distribution sélective qui opèrent en tant que détaillants sur le marché, indépendamment de la possibilité d'interdire à un membre du système de distribution d'opérer à partir d'un lieu d'établissement non autorisé ;
d) Les restrictions apportées aux livraisons croisées entre distributeurs à l'intérieur d'un système de distribution sélective, y compris entre les distributeurs opérant à des stades différents du commerce.
Article L464-7
La décision de l'Autorité prise au titre de l'article L. 464-1 peut faire l'objet d'un recours en annulation ou en réformation par les parties en cause et le commissaire du Gouvernement devant la cour d'appel de Paris au maximum dix jours après sa notification. La cour statue dans le mois du recours.
Le recours n'est pas suspensif. Toutefois, le premier président de la cour d'appel de Paris peut ordonner qu'il soit sursis à l'exécution des mesures conservatoires, si celles-ci sont susceptibles d'entraîner des conséquences manifestement excessives ou s'il est intervenu, postérieurement à leur notification, des faits nouveaux d'une exceptionnelle gravité.
Article L464-8
Les décisions de l'Autorité de la concurrence mentionnées aux articles L. 462-8, L. 464-2, L. 464-3, L. 464-5, L. 464-6 et L. 464-6-1 sont notifiées aux parties en cause et au ministre chargé de l'économie, qui peuvent, dans le délai d'un mois, introduire un recours en annulation ou en réformation devant la cour d'appel de Paris.
Le recours n'est pas suspensif. Toutefois, le premier président de la cour d'appel de Paris peut ordonner qu'il soit sursis à l'exécution de la décision si celle-ci est susceptible d'entraîner des conséquences manifestement excessives ou s'il est intervenu, postérieurement à sa notification, des faits nouveaux d'une exceptionnelle gravité.
Le pourvoi en cassation, formé le cas échéant, contre l'arrêt de la cour, est exercé dans un délai d'un mois suivant sa notification.
Le président de l'Autorité de la concurrence peut former un pourvoi en cassation contre l'arrêt de la cour d'appel de Paris ayant annulé ou réformé une décision de l'Autorité.
Le ministre chargé de l'économie peut, dans tous les cas, former un pourvoi en cassation contre l'arrêt de la cour d'appel de Paris.
L'Autorité de la concurrence veille à l'exécution de ses décisions.
Article L464-9
Le ministre chargé de l'économie peut enjoindre aux entreprises de mettre un terme aux pratiques visées aux articles L. 420-1, L. 420-2 et L. 420-5 dont elles sont les auteurs lorsque ces pratiques
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affectent un marché de dimension locale, ne concernent pas des faits relevant des articles 81 et 82 du traité instituant la Communauté européenne et sous réserve que le chiffre d'affaires que chacune d'entre elles a réalisé en France lors du dernier exercice clos ne dépasse pas 50 millions d'euros et que leurs chiffres d'affaires cumulés ne dépassent pas 100 millions d'euros. Le ministre chargé de l'économie peut également, dans les mêmes conditions, leur proposer de transiger. Le montant de la transaction ne peut excéder 75 000 € ou 5 % du dernier chiffre d'affaires connu en France si cette valeur est plus faible. Les modalités de la transaction sont fixées par décret en Conseil d'Etat.L'exécution dans les délais impartis des obligations résultant de l'injonction et de l'acceptation de la transaction éteint toute action devant l'Autorité de la concurrence pour les mêmes faits. Le ministre chargé de l'économie informe l'Autorité de la concurrence des transactions conclues. Il ne peut proposer de transaction ni imposer d'injonction lorsque les mêmes faits ont, au préalable, fait l'objet d'une saisine de l'Autorité de la concurrence par une entreprise ou un organisme visé au deuxième alinéa de l'article L. 462-1. En cas de refus de transiger, le ministre chargé de l'économie saisit l'Autorité de la concurrence. Il saisit également l'Autorité de la concurrence en cas d'inexécution des injonctions prévues au premier alinéa ou des obligations résultant de l'acceptation de la transaction. Les sommes issues de la transaction sont versées au Trésor public et recouvrées comme les créances étrangères à l'impôt et au domaine.
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Partie législative
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE VII : Dispositions diverses.
Article L470-1
La juridiction peut condamner solidairement les personnes morales au paiement des amendes prononcées contre leurs dirigeants en vertu des dispositions du présent livre et des textes pris pour son application.
Article L470-2
En cas de condamnation au titre d'un délit prévu au titre IV du présent livre, la juridiction peut ordonner que sa décision soit affichée ou diffusée dans les conditions prévues par l'article 131-10 du code pénal.
Article L470-3
Lorsqu'une personne ayant fait l'objet, depuis moins de deux ans, d'une condamnation pour l'une des infractions définies par les articles L. 441-2, L. 441-3, L. 441-4, L. 441-5, L. 441-6, L. 442-2, L. 442-3, L. 442-4, L. 442-5 et L. 443-1, commet la même infraction, le maximum de la peine d'amende encourue est porté au double.
Article L470-4
Lorsqu'une personne morale ayant fait l'objet, depuis moins de deux ans, d'une condamnation pour l'une des infractions définies par les articles L. 441-3, L. 441-4, L. 441-5, L. 441-6, L. 442-2, L. 442-3 et L. 442-4 commet la même infraction, le taux maximum de la peine d'amende encourue est égal à dix fois celui applicable aux personnes physiques pour cette infraction.
Article L470-4-1
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Pour les délits prévus au titre IV du présent livre pour lesquels une peine d'emprisonnement n'est pas encourue et pour les contraventions prévues au présent livre, l'autorité administrative chargée de la concurrence et de la consommation a droit, tant que l'action publique n'a pas été mise en mouvement, de transiger, après accord du procureur de la République, selon les modalités fixées par décret en Conseil d'Etat.
L'acte par lequel le procureur de la République donne son accord à la proposition de transaction est interruptif de la prescription de l'action publique.
L'action publique est éteinte lorsque l'auteur de l'infraction a exécuté dans le délai imparti les obligations résultant pour lui de l'acceptation de la transaction.
Article L470-4-2
I. - La composition pénale prévue à l'article 41-2 du code de procédure pénale est applicable aux personnes morales qui reconnaissent avoir commis un ou plusieurs délits prévus au titre IV du présent livre pour lesquels une peine d'emprisonnement n'est pas encourue ainsi que, le cas échéant, une ou plusieurs contraventions connexes. Seule la mesure prévue par le 1° de l'article 41-2 du même code est applicable à ces personnes.
II. - Pour les délits mentionnés au I, le procureur de la République peut proposer la composition pénale à l'auteur des faits par l'intermédiaire d'un fonctionnaire mentionné au quatrième alinéa de l'article L. 450-1 du présent code.
Article L470-4-3
Pour les délits prévus au titre IV du présent livre pour lesquels une peine d'emprisonnement n'est pas encourue, vaut citation à personne la convocation en justice notifiée au prévenu, sur instruction du procureur de la République, par un fonctionnaire mentionné au quatrième alinéa de l'article L. 450-1.
Les dispositions de l'article 390-1 du code de procédure pénale sont applicables à la convocation ainsi notifiée.
Article L470-5
Pour l'application des dispositions du présent livre, le ministre chargé de l'économie ou son représentant peut, devant les juridictions civiles ou pénales, déposer des conclusions et les développer oralement à l'audience. Il peut également produire les procès-verbaux et les rapports d'enquête.
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Article L470-6
Pour l'application des articles 81 à 83 du traité instituant la Communauté européenne, le ministre chargé de l'économie et les fonctionnaires qu'il a désignés ou habilités conformément aux dispositions du présent livre d'une part, l'Autorité de la concurrence, d'autre part, disposent des pouvoirs respectifs qui leur sont reconnus par les articles du présent livre et du règlement (CE) n° 139 / 2004 du Conseil, du 20 janvier 2004, relatif au contrôle des concentrations entre entreprises et par le règlement du Conseil n° 1 / 2003 (CE) du 16 décembre 2002 relatif à la mise en oeuvre des règles de concurrence prévues aux articles 81 et 82 du traité instituant la Communauté européenne. Les règles de procédure prévues par ces textes leur sont applicables.
Pour l'application des articles 87 et 88 du traité instituant la Communauté européenne, le ministre chargé de l'économie et les fonctionnaires qu'il a désignés ou habilités conformément aux dispositions de l'article L. 450-1 disposent des pouvoirs qui leur sont reconnus par le titre V du livre IV.
Article L470-7
Les organisations professionnelles peuvent introduire l'action devant la juridiction civile ou commerciale pour les faits portant un préjudice direct ou indirect à l'intérêt collectif de la profession ou du secteur qu'elles représentent, ou à la loyauté de concurrence.
Article L470-7-1
Un décret fixe les modalités de publicité des décisions prises en application des articles L. 462-8, L. 464-1, L. 464-2, L. 464-3, L. 464-5, L. 464-6 et L. 464-6-1.
Article L470-8
Un décret en Conseil d'Etat détermine les modalités d'application du présent livre.
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Partie législative
LIVRE V : Des effets de commerce et des garanties
TITRE Ier : Des effets de commerce
Chapitre Ier : De la lettre de change
Section 1 : De la création et de la forme de la lettre de change.
Article L511-1
I. - La lettre de change contient :
1° La dénomination de lettre de change insérée dans le texte même du titre et exprimée dans la langue employée pour la rédaction de ce titre ;
2° Le mandat pur et simple de payer une somme déterminée ;
3° Le nom de celui qui doit payer, dénommé tiré ;
4° L'indication de l'échéance ;
5° Celle du lieu où le paiement doit s'effectuer ;
6° Le nom de celui auquel ou à l'ordre duquel le paiement doit être fait ;
7° L'indication de la date et du lieu où la lettre est créée ;
8° La signature de celui qui émet la lettre dénommé tireur. Cette signature est apposée, soit à la main, soit par tout procédé non manuscrit.
II. - Le titre dans lequel une des énonciations indiquées au I fait défaut ne vaut pas comme lettre de change, sauf dans les cas déterminés aux III à V du présent article.
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III. - La lettre de change dont l'échéance n'est pas indiquée est considérée comme payable à vue.
IV. - A défaut d'indication spéciale, le lieu désigné à côté du nom du tiré est réputé être le lieu du paiement et, en même temps, le lieu du domicile du tiré.
V. - La lettre de change n'indiquant pas le lieu de sa création est considérée comme souscrite dans le lieu désigné à côté du nom du tireur.
Article L511-2
La lettre de change peut être à l'ordre du tireur lui-même.
Elle peut être tirée sur le tireur lui-même.
Elle peut être tirée pour le compte d'un tiers.
Elle peut être payable au domicile d'un tiers, soit dans la localité où le tiré a son domicile, soit dans une autre localité.
Article L511-3
Dans une lettre de change payable à vue ou à un certain délai de vue, il peut être stipulé par le tireur que la somme sera productive d'intérêts. Dans toute autre lettre de change, cette stipulation est réputée non écrite.
Le taux des intérêts doit être indiqué dans la lettre ; à défaut de cette indication, la clause est réputée non écrite.
Les intérêts courent à partir de la date de la lettre de change si une autre date n'est pas indiquée.
Article L511-4
La lettre de change dont le montant est écrit à la fois en toutes lettres et en chiffres vaut, en cas de différence, pour la somme écrite en toutes lettres.
La lettre de change dont le montant est écrit plusieurs fois, soit en toutes lettres, soit en chiffres, ne vaut, en cas de différence, que pour la moindre somme.
Article L511-5
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Les lettres de change souscrites par des mineurs sont nulles à leur égard, sauf les droits respectifs des parties, conformément à l'article 1312 du code civil.
Si la lettre de change porte des signatures de personnes incapables de s'obliger par lettre de change, des signatures fausses ou des signatures de personnes imaginaires ou des signatures qui, pour toute autre raison, ne sauraient obliger les personnes qui ont signé la lettre de change, ou du nom desquelles elle a été signée, les obligations des autres signataires n'en sont pas moins valables.
Quiconque appose sa signature sur une lettre de change comme représentant d'une personne pour laquelle il n'avait pas le pouvoir d'agir, est obligé lui-même en vertu de la lettre et, s'il a payé, a les mêmes droits qu'aurait eus le prétendu représenté. Il en est de même du représentant qui a dépassé ses pouvoirs.
Article L511-6
Le tireur est garant de l'acceptation et du paiement.
Il peut s'exonérer de la garantie de l'acceptation ; toute clause par laquelle il s'exonère de la garantie du paiement est réputée non écrite.
Section 2 : De la provision.
Article L511-7
La provision doit être faite par le tireur ou par celui pour le compte de qui la lettre de change sera tirée, sans que le tireur pour compte d'autrui cesse d'être personnellement obligé envers les endosseurs et le porteur seulement.
Il y a provision si, à l'échéance de la lettre de change, celui sur qui elle est fournie est redevable au tireur, ou à celui pour compte de qui elle est tirée, d'une somme au moins égale au montant de la lettre de change.
La propriété de la provision est transmise de droit aux porteurs successifs de la lettre de change.
L'acceptation suppose la provision.
Elle en établit la preuve à l'égard des endosseurs.
Qu'il y ait ou non acceptation, le tireur seul est tenu de prouver, en cas de dénégation, que ceux sur qui la lettre était tirée avaient provision à l'échéance ; sinon, il est tenu de la garantir, quoique le
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protêt ait été fait après les délais fixés.
Section 3 : De l'endossement.
Article L511-8
Toute lettre de change, même non expressément tirée à ordre, est transmissible par la voie de l'endossement.
Lorsque le tireur a inséré dans la lettre de change les mots " non à ordre " ou une expression équivalente, le titre n'est transmissible que dans la forme et avec les effets d'une cession ordinaire.
L'endossement peut être fait même au profit du tiré, accepteur ou non, du tireur ou de tout autre obligé. Ces personnes peuvent endosser la lettre à nouveau.
L'endossement doit être pur et simple. Toute condition à laquelle il est subordonné est réputée non écrite.
L'endossement partiel est nul.
L'endossement " au porteur " vaut comme endossement en blanc.
L'endossement doit être inscrit sur la lettre de change ou sur une feuille qui y est attachée et dénommée allonge. Il doit être signé par l'endosseur. La signature de celui-ci est apposée, soit à la main, soit par tout procédé non manuscrit.
L'endossement peut ne pas désigner le bénéficiaire ou consister en un endossement en blanc constitué par la simple signature de l'endosseur. Dans ce dernier cas, l'endossement, pour être valable, doit être inscrit au dos de la lettre de change ou sur l'allonge.
Article L511-9
I. - L'endossement transmet tous les droits résultant de la lettre de change.
II. - Si l'endossement est en blanc, le porteur peut :
1° Remplir le blanc, soit de son nom, soit du nom d'une autre personne ;
2° Endosser la lettre de nouveau en blanc ou à une autre personne ;
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3° Remettre la lettre à un tiers, sans remplir le blanc et sans l'endosser.
Article L511-10
L'endosseur est, sauf clause contraire, garant de l'acceptation et du paiement.
Il peut interdire un nouvel endossement. Dans ce cas, il n'est pas tenu à la garantie envers les personnes auxquelles la lettre est ultérieurement endossée.
Article L511-11
Le détenteur d'une lettre de change est considéré comme porteur légitime s'il justifie de son droit par une suite ininterrompue d'endossements, même si le dernier endossement est en blanc. Les endossements biffés sont à cet égard réputés non écrits. Quand un endossement en blanc est suivi d'un autre endossement, le signataire de celui-ci est réputé avoir acquis la lettre par l'endossement en blanc.
Si une personne a été dépossédée d'une lettre de change par quelque événement que ce soit, le porteur justifiant de son droit de la manière indiquée à l'alinéa précédent n'est tenu de se dessaisir de la lettre que s'il l'a acquise de mauvaise foi ou si, en l'acquérant, il a commis une faute lourde.
Article L511-12
Les personnes actionnées en vertu de la lettre de change ne peuvent pas opposer au porteur les exceptions fondées sur leurs rapports personnels avec le tireur ou avec les porteurs antérieurs, à moins que le porteur, en acquérant la lettre, n'ait agi sciemment au détriment du débiteur.
Article L511-13
Lorsque l'endossement contient la mention " valeur en recouvrement ", " pour encaissement ", " par procuration ", ou toute autre mention impliquant un simple mandat, le porteur peut exercer tous les droits dérivant de la lettre de change, mais il ne peut endosser celle-ci qu'à titre de procuration.
Les obligés ne peuvent, dans ce cas, invoquer contre le porteur que les exceptions qui seraient opposables à l'endosseur.
Le mandat renfermé dans un endossement de procuration ne prend pas fin par le décès du mandant ou la survenance de son incapacité.
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Lorsqu'un endossement contient la mention " valeur en garantie ", " valeur en gage " ou toute autre mention impliquant un nantissement, le porteur peut exercer tous les droits dérivant de la lettre de change, mais un endossement fait par lui ne vaut que comme un endossement à titre de procuration.
Les obligés ne peuvent invoquer contre le porteur les exceptions fondées sur leurs rapports personnels avec l'endosseur, à moins que le porteur, en recevant la lettre, n'ait agi sciemment au détriment du débiteur.
Article L511-14
L'endossement postérieur à l'échéance produit les mêmes effets qu'un endossement antérieur. Toutefois, l'endossement postérieur au protêt faute de paiement, ou fait après l'expiration du délai fixé pour dresser le protêt, ne produit que les effets d'une cession ordinaire.
Sauf preuve contraire, l'endossement sans date est censé avoir été fait avant l'expiration du délai fixé pour dresser le protêt.
Il est défendu d'antidater les ordres à peine de faux.
Section 4 : De l'acceptation.
Article L511-15
La lettre de change peut être, jusqu'à l'échéance, présentée à l'acceptation du tiré, au lieu de son domicile, par le porteur ou même par un simple détenteur.
Dans toute lettre de change, le tireur peut stipuler qu'elle devra être présentée à l'acceptation, avec ou sans fixation de délai.
Il peut interdire dans la lettre la présentation à l'acceptation, à moins qu'il ne s'agisse d'une lettre de change payable chez un tiers ou d'une lettre payable dans une localité autre que celle du domicile du tiré ou d'une lettre tirée à un certain délai de vue.
Il peut aussi stipuler que la présentation à l'acceptation ne pourra avoir lieu avant un terme indiqué.
Tout endosseur peut stipuler que la lettre devra être présentée à l'acceptation, avec ou sans fixation de délai, à moins qu'elle n'ait été déclarée non acceptable par le tireur.
Les lettres de change à un certain délai de vue doivent être présentées à l'acceptation dans le délai d'un an à partir de leur date.
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Le tireur peut abréger ce dernier délai ou en stipuler un plus long.
Ces délais peuvent être abrégés par les endosseurs.
Lorsque la lettre de change est créée en exécution d'une convention relative à des fournitures de marchandises et passée entre commerçants, et que le tireur a satisfait aux obligations résultant pour lui du contrat, le tiré ne peut se refuser à donner son acceptation dès l'expiration d'un délai conforme aux usages normaux du commerce en matière de reconnaissance de marchandises.
Le refus d'acceptation entraîne de plein droit la déchéance du terme aux frais et dépens du tiré.
Article L511-16
Le tiré peut demander qu'une seconde présentation lui soit faite le lendemain de la première. Les intéressés ne sont admis à prétendre qu'il n'a pas été fait droit à cette demande que si celle-ci est mentionnée dans le protêt.
Le porteur n'est pas obligé de se dessaisir, entre les mains du tiré, de la lettre présentée à l'acceptation.
Article L511-17
L'acceptation est écrite sur la lettre de change. Elle est exprimée par le mot " accepté " ou tout autre mot équivalent et est signée du tiré. La simple signature du tiré apposée au recto de la lettre vaut acceptation.
Quand la lettre est payable à un certain délai de vue ou lorsqu'elle doit être présentée à l'acceptation dans un délai déterminé en vertu d'une stipulation spéciale, l'acceptation doit être datée du jour où elle a été donnée, à moins que le porteur n'exige qu'elle soit datée du jour de la présentation. A défaut de date, le porteur, pour conserver ses droits de recours contre les endosseurs et contre le tireur, fait constater cette omission par un protêt dressé en temps utile.
L'acceptation est pure et simple, mais le tiré peut la restreindre à une partie de la somme.
Toute autre modification apportée par l'acceptation aux énonciations de la lettre de change équivaut à un refus d'acceptation. Toutefois, l'accepteur est tenu dans les termes de son acceptation.
Article L511-18
Quand le tireur a indiqué dans la lettre de change un lieu de paiement autre que celui du domicile du tiré, sans désigner un tiers chez qui le paiement doit être effectué, le tiré peut l'indiquer lors de
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l'acceptation. A défaut de cette indication, l'accepteur est réputé s'être obligé à payer lui-même au lieu du paiement.
Si la lettre est payable au domicile du tiré, celui-ci peut, dans l'acceptation, indiquer une adresse du même lieu où le paiement doit être effectué.
Article L511-19
Par l'acceptation, le tiré s'oblige à payer la lettre de change à l'échéance.
A défaut de paiement, le porteur, même s'il est le tireur, a contre l'accepteur une action directe résultant de la lettre de change pour tout ce qui peut être exigé en vertu des articles L. 511-45 et L. 511-46.
Article L511-20
Si le tiré, qui a revêtu la lettre de change de son acceptation, a biffé celle-ci avant la restitution de la lettre, l'acceptation est censée refusée. Sauf preuve contraire, la radiation est réputée avoir été faite avant la restitution du titre.
Toutefois, si le tiré a fait connaître son acceptation par écrit au porteur ou à un signataire quelconque, il est tenu envers ceux-ci dans les termes de son acceptation.
Section 5 : De l'aval.
Article L511-21
Le paiement d'une lettre de change peut être garanti pour tout ou partie de son montant par un aval.
Cette garantie est fournie par un tiers ou même par un signataire de la lettre.
L'aval est donné soit sur la lettre de change ou sur une allonge, soit par un acte séparé indiquant le lieu où il est intervenu.
Il est exprimé par les mots " bon pour aval " ou par toute autre formule équivalente ; il est signé par le donneur d'aval.
Il est considéré comme résultant de la seule signature du donneur d'aval apposée au recto de la lettre de change, sauf quand il s'agit de la signature du tiré ou de celle du tireur.
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L'aval doit indiquer pour le compte de qui il est donné. A défaut de cette indication, il est réputé donné pour le tireur.
Le donneur d'aval est tenu de la même manière que celui dont il s'est porté garant.
Son engagement est valable, alors même que l'obligation qu'il a garantie serait nulle pour toute cause autre qu'un vice de forme.
Quand il paie la lettre de change, le donneur d'aval acquiert les droits résultant de la lettre de change contre le garanti et contre ceux qui sont tenus envers ce dernier en vertu de la lettre de change.
Section 6 : De l'échéance.
Article L511-22
I. - Une lettre de change peut être tirée :
1° A vue ;
2° A un certain délai de vue ;
3° A un certain délai de date ;
4° A jour fixe.
II. - Les lettres de change, soit à d'autres échéances, soit à échéances successives, sont nulles.
Article L511-23
La lettre de change à vue est payable à sa présentation. Elle doit être présentée au paiement dans le délai d'un an à partir de sa date. Le tireur peut abréger ce délai ou en stipuler un plus long. Ces délais peuvent être abrégés par les endosseurs.
Le tireur peut prescrire qu'une lettre de change payable à vue ne doit pas être présentée au paiement avant un terme indiqué. Dans ce cas, le délai de présentation part de ce terme.
Article L511-24
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L'échéance d'une lettre de change à un certain délai de vue est déterminée, soit par la date de l'acceptation, soit par celle du protêt.
En l'absence du protêt, l'acceptation non datée est réputée, à l'égard de l'accepteur, avoir été donnée le dernier jour du délai prévu pour la présentation à l'acceptation.
L'échéance d'une lettre de change tirée à un ou plusieurs mois de date ou de vue a lieu à la date correspondante du mois où le paiement doit être effectué. A défaut de date correspondante, l'échéance a lieu le dernier jour de ce mois.
Quand une lettre de change est tirée à un ou plusieurs mois et demi de date ou de vue, on compte d'abord les mois entiers.
Si l'échéance est fixée au commencement, au milieu ou à la fin du mois, on entend par ces termes le 1er, le 15 ou le dernier jour du mois.
Les expressions " huit jours " ou " quinze jours " s'entendent, non d'une ou deux semaines, mais d'un délai de huit ou quinze jours effectifs.
L'expression " demi-mois " indique un délai de quinze jours.
Article L511-25
Quand une lettre de change est payable à jour fixe dans un lieu où le calendrier est différent de celui du lieu de l'émission, la date de l'échéance est considérée comme fixée d'après le calendrier du lieu de paiement.
Quand une lettre de change tirée entre deux places ayant des calendriers différents est payable à un certain délai de date, le jour de l'émission est ramené au jour correspondant du calendrier du lieu de paiement et l'échéance est fixée en conséquence.
Les délais de présentation des lettres de change sont calculés conformément aux règles de l'alinéa précédent.
Ces règles ne sont pas applicables si une clause de la lettre de change, ou même les simples énonciations du titre, indiquent que l'intention a été d'adopter des règles différentes.
Section 7 : Du paiement.
Article L511-26
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Le porteur d'une lettre de change payable à jour fixe ou à un certain délai de date ou de vue doit présenter la lettre de change au paiement soit le jour où elle est payable, soit l'un des deux jours ouvrables qui suivent.
La présentation d'une lettre de change à une chambre de compensation équivaut à une présentation au paiement.
Article L511-27
Le tiré peut exiger, en payant la lettre de change, qu'elle lui soit remise acquittée par le porteur.
Le porteur ne peut refuser un paiement partiel.
En cas de paiement partiel, le tiré peut exiger que mention de ce paiement soit faite sur la lettre et que quittance lui en soit donnée.
Les paiements faits à compte sur le montant d'une lettre de change sont à la décharge des tireur et endosseur.
Le porteur est tenu de faire protester la lettre de change pour le surplus.
Article L511-28
Le porteur d'une lettre de change ne peut être contraint d'en recevoir le paiement avant l'échéance.
Le tiré qui paie avant l'échéance le fait à ses risques et périls.
Celui qui paie à l'échéance est valablement libéré, à moins qu'il n'y ait de sa part une fraude ou une faute lourde. Il est obligé de vérifier la régularité de la suite des endossements, mais non la signature des endosseurs.
Article L511-29
Lorsqu'une lettre de change est stipulée payable en une monnaie n'ayant pas cours au lieu du paiement, le montant peut en être payé dans la monnaie du pays, d'après sa valeur au jour de l'échéance. Si le débiteur est en retard, le porteur peut, à son choix, demander que le montant de la lettre de change soit payé dans la monnaie du pays d'après le cours, soit du jour de l'échéance, soit du jour du paiement.
Les usages du lieu de paiement servent à déterminer la valeur de la monnaie étrangère. Toutefois, le
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tireur peut stipuler que la somme à payer sera calculée d'après un cours déterminé dans la lettre.
Les règles ci-énoncées ne s'appliquent pas au cas où le tireur a stipulé que le paiement devra être fait dans une certaine monnaie indiquée par une clause de paiement effectif en une monnaie étrangère.
Si le montant de la lettre de change est indiqué dans une monnaie ayant la même dénomination, mais une valeur différente, dans le pays d'émission et dans celui du paiement, on est présumé s'être référé à la monnaie du lieu du paiement.
Article L511-30
A défaut de présentation de la lettre de change au paiement le jour de son échéance, ou l'un des deux jours ouvrables qui suivent, tout débiteur a la faculté d'en remettre le montant en dépôt à la Caisse des dépôts et consignations, aux frais, risques et périls du porteur.
Article L511-31
Il n'est admis d'opposition au paiement qu'en cas de perte de la lettre de change ou de redressement ou liquidation judiciaire du porteur.
Article L511-32
En cas de perte d'une lettre de change non acceptée, celui à qui elle appartient peut en poursuivre le paiement sur toute suivante.
Article L511-33
Si la lettre de change perdue est revêtue de l'acceptation, le paiement ne peut en être exigé sur toute suivante que par ordonnance du juge et en donnant caution.
Article L511-34
Si celui qui a perdu la lettre de change, qu'elle soit acceptée ou non, ne peut représenter toute suivante, il peut demander le paiement de la lettre de change perdue et l'obtenir par l'ordonnance du juge en justifiant de sa propriété par ses livres et en donnant caution.
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Article L511-35
En cas de refus de paiement, sur la demande formée en vertu des deux articles précédents, le propriétaire de la lettre de change perdue conserve tous ses droits par un acte de protestation. Cet acte doit être fait le lendemain de l'échéance de la lettre de change perdue. Les avis prescrits par l'article L. 511-42 doivent être donnés au tireur et aux endosseurs dans les délais fixés par cet article.
Article L511-36
Le propriétaire de la lettre de change égarée doit, pour se procurer la suivante, s'adresser à son endosseur immédiat qui est tenu de lui prêter son nom et ses soins pour agir envers son propre endosseur, et ainsi en remontant d'endosseur à endosseur jusqu'au tireur de la lettre. Le propriétaire de la lettre de change égarée supporte les frais.
Article L511-37
L'engagement de la caution mentionné dans les articles L. 511-33 et L. 511-34 est éteint après trois ans, si, pendant ce temps, il n'y a eu ni demandes ni poursuites en justice.
Section 8 : Du recours faute d'acceptation et faute de paiement.
Article L511-38
I. - Le porteur peut exercer ses recours contre les endosseurs, le tireur et les autres obligés :
1° A l'échéance, si le paiement n'a pas eu lieu ;
2° Même avant l'échéance :
a) S'il y a eu refus total ou partiel d'acceptation ;
b) Dans les cas de redressement ou de liquidation judiciaires du tiré, accepteur ou non, de cessation de ses paiements même non constatée par un jugement, ou de saisie de ses biens demeurée infructueuse ;
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c) Dans les cas de redressement ou de liquidation judiciaire du tireur d'une lettre non acceptable.
II. - Toutefois, les garants contre lesquels un recours est exercé dans les cas prévus par le b et le c du I peuvent, dans les trois jours de l'exercice de ce recours adresser au président du tribunal de commerce de leur domicile une requête pour solliciter des délais. Si la demande est reconnue fondée, l'ordonnance fixe l'époque à laquelle les garants sont tenus de payer les effets de commerce dont il s'agit, sans que les délais ainsi octroyés puissent dépasser la date fixée pour l'échéance. L'ordonnance n'est susceptible ni d'opposition ni d'appel.
Article L511-39
Le refus d'acceptation ou de paiement doit être constaté par un acte authentique dénommé protêt faute d'acceptation ou faute de paiement.
Le protêt faute d'acceptation doit être fait dans les délais fixés pour la présentation à l'acceptation. Si, dans le cas prévu au premier alinéa de l'article L. 511-16, la première présentation a eu lieu le dernier jour du délai, le protêt peut encore être dressé le lendemain.
Le protêt faute de paiement d'une lettre de change payable à jour fixe ou à un certain délai de date ou de vue doit être fait l'un des deux jours ouvrables qui suivent le jour où la lettre de change est payable. S'il s'agit d'une lettre payable à vue, le protêt doit être dressé dans les conditions indiquées à l'alinéa précédent pour dresser le protêt faute d'acceptation.
Le protêt faute d'acceptation dispense de la présentation au paiement et du protêt faute de paiement.
En cas de cessation de paiement du tiré, accepteur ou non, ou en cas de saisie de ses biens demeurée infructueuse, le porteur ne peut exercer ses recours qu'après présentation de la lettre au tiré pour le paiement et après confection d'un protêt.
En cas de redressement ou de liquidation judiciaire du tiré accepteur ou non ainsi qu'en cas de redressement ou de liquidation judiciaire du tireur d'une lettre non acceptable, la production du jugement déclaratif suffit pour permettre au porteur d'exercer ses recours.
Article L511-40
Lorsque le porteur consent à recevoir en paiement, soit un chèque ordinaire, soit un mandat de virement sur la Banque de France, soit un chèque postal, le chèque ou le mandat doit indiquer le nombre et l'échéance des effets ainsi payés. Cette indication n'est toutefois pas imposée pour les chèques ou mandats de virement créés pour le règlement entre banquiers du solde des opérations effectuées entre eux par l'intermédiaire d'une chambre de compensation.
Si le règlement est effectué au moyen d'un chèque ordinaire et si celui-ci n'est pas payé, notification du protêt faute de paiement dudit chèque est faite au domicile de paiement de la lettre de change
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dans le délai prévu à l'article 41 du décret-loi du 30 octobre 1935 unifiant le droit en matière de chèques et relatif aux cartes de paiement. Le protêt faute de paiement du chèque et la notification sont faits par un seul et même exploit, sauf dans le cas où, pour des raisons de compétence territoriale, l'intervention de deux officiers ministériels est nécessaire.
Si le règlement est effectué au moyen d'un mandat de virement et si celui-ci est rejeté par la Banque de France, ou au moyen d'un chèque postal et si celui-ci est rejeté par le centre de chèques postaux détenteur du compte à débiter, la non-exécution fait l'objet d'un acte de notification au domicile de l'émetteur dudit mandat ou dudit chèque postal dans les huit jours à compter de la date de l'émission. Cet acte est dressé par un huissier ou par un notaire.
Article L511-41
Lorsque le dernier jour du délai accordé pour l'accomplissement de l'acte de notification de la non-exécution du mandat de virement ou du chèque postal est un jour férié légal, ce délai est prorogé jusqu'au premier jour ouvrable qui en suit l'expiration. Les jours fériés intermédiaires sont compris dans la computation du délai. Aux jours fériés légaux sont assimilés les jours où, aux termes des lois en vigueur, aucun paiement ne peut être exigé ni aucun protêt dressé.
Le tiré de la lettre de change qui reçoit la notification doit, s'il ne paie pas la lettre de change ainsi que les frais de notification et, s'il y a lieu, du protêt du chèque, restituer la lettre de change à l'officier ministériel instrumentaire. Celui-ci dresse immédiatement le protêt faute de paiement de la lettre de change.
Si le tiré ne restitue pas la lettre de change, un acte de protestation est aussitôt dressé. Le défaut de restitution y est constaté. Le tiers porteur est, en ce cas, dispensé de se conformer aux dispositions des articles L. 511-33 et L. 511-34.
Le défaut de restitution de la lettre de change constitue un délit passible des peines prévues par les articles 314-1 et 314-10 du code pénal.
Article L511-42
Le porteur doit donner avis du défaut d'acceptation ou de paiement à son endosseur dans les quatre jours ouvrables qui suivent le jour du protêt ou celui de la présentation en cas de clause de retour sans frais.
Les notaires et les huissiers sont tenus, à peine de dommages intérêts, lorsque l'effet indique les nom et domicile du tireur de la lettre de change, de prévenir celui-ci dans les quarante-huit heures qui suivent l'enregistrement, par la poste et par lettre recommandée, des motifs du refus de payer. Cette lettre donne lieu, au profit du notaire ou de l'huissier, à un honoraire dont le montant est fixé par voie réglementaire en sus des frais d'affranchissement et de recommandation.
Chaque endosseur doit, dans les deux jours ouvrables qui suivent le jour où il a reçu l'avis, faire
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connaître à son endosseur l'avis qu'il a reçu, en indiquant les noms et les adresses de ceux qui ont donné les avis précédents, et ainsi de suite, en remontant jusqu'au tireur.
Les délais ci-dessus indiqués courent de la réception de l'avis précédent.
Lorsque, en conformité de l'alinéa précédent, un avis est donné à un signataire de la lettre de change, le même avis doit être donné dans le même délai à son avaliseur.
Dans le cas où un endosseur n'a pas indiqué son adresse ou l'a indiquée d'une façon illisible, il suffit que l'avis soit donné à l'endosseur qui le précède.
Celui qui a un avis à donner peut le faire sous une forme quelconque, même par un simple renvoi de la lettre de change.
Il doit prouver qu'il a donné l'avis dans le délai imparti.
Ce délai est considéré comme observé si une lettre missive donnant l'avis a été mise à la poste dans ledit délai.
Celui qui ne donne pas l'avis dans le délai ci-dessus indiqué n'encourt pas de déchéance ; il est responsable, s'il y a lieu, du préjudice causé par sa négligence, sans que les dommages-intérêts puissent dépasser le montant de la lettre de change.
Article L511-43
Le tireur, un endosseur ou un avaliseur peut, par la clause " retour sans frais ", " sans protêt " ou toute autre clause équivalente inscrite sur le titre et signée, dispenser le porteur de faire dresser, pour exercer ses recours, un protêt faute d'acceptation ou faute de paiement.
Cette clause ne dispense pas le porteur de la présentation de la lettre de change dans les délais prescrits ni des avis à donner.
La preuve de l'inobservation des délais incombe à celui qui s'en prévaut contre le porteur.
Si la clause est inscrite par le tireur, elle produit ses effets à l'égard de tous les signataires ; si elle est inscrite par un endosseur ou un avaliseur, elle produit ses effets seulement à l'égard de celui-ci. Si, malgré la clause inscrite par le tireur, le porteur fait dresser le protêt, les frais en restent à sa charge. Quand la clause émane d'un endosseur, ou d'un avaliseur, les frais du protêt, s'il en est dressé un, peuvent être recouvrés contre tous les signataires.
Article L511-44
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Tous ceux qui ont tiré, accepté, endossé ou avalisé une lettre de change sont tenus solidairement envers le porteur.
Le porteur a le droit d'agir contre toutes ces personnes, individuellement ou collectivement, sans être astreint à observer l'ordre dans lequel elles se sont obligées.
Le même droit appartient à tout signataire d'une lettre de change qui a remboursé celle-ci.
L'action intentée contre un des obligés n'empêche pas d'agir contre les autres, même postérieurs à celui qui a été d'abord poursuivi.
Article L511-45
I. - Le porteur peut réclamer à celui contre lequel il exerce son recours :
1° Le montant de la lettre de change non acceptée ou non payée avec les intérêts, s'il en a été stipulé ;
2° Les intérêts au taux légal à partir de l'échéance ;
3° Les frais du protêt, ceux des avis donnés ainsi que les autres frais.
II. - Si le recours est exercé avant l'échéance, déduction est faite d'un escompte sur le montant de la lettre. Cet escompte est calculé d'après le taux de l'escompte officiel fixé par la Banque de France tel qu'il existe à la date du recours au lieu du domicile du porteur.
Article L511-46
Celui qui a remboursé la lettre de change peut réclamer à ses garants :
1° La somme intégrale qu'il a payée ;
2° Les intérêts de ladite somme, calculés au taux légal, à partir du jour où il l'a déboursée ;
3° Les frais qu'il a faits.
Article L511-47
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Tout obligé contre lequel un recours est exercé ou qui est exposé à un recours peut exiger, contre remboursement, la remise de la lettre de change avec le protêt et un compte acquitté.
Tout endosseur qui a remboursé la lettre de change peut biffer son endossement et ceux des endosseurs subséquents.
Article L511-48
En cas d'exercice d'un recours après une acceptation partielle, celui qui rembourse la somme pour laquelle la lettre n'a pas été acceptée, peut exiger que ce remboursement soit mentionné sur la lettre et qu'il lui en soit donné quittance. Le porteur doit en outre lui remettre une copie certifiée conforme de la lettre et le protêt pour permettre l'exercice des recours ultérieurs.
Article L511-49
I. - Après l'expiration des délais fixés :
1° Pour la présentation d'une lettre de change à vue ou à un certain délai de vue ;
2° Pour la confection du protêt faute d'acceptation ou faute de paiement ;
3° Pour la présentation au paiement en cas de clause de retour sans frais,
le porteur est déchu de ses droits contre les endosseurs, contre le tireur et contre les autres obligés, à l'exception de l'accepteur.
II. - Toutefois, la déchéance n'a lieu à l'égard du tireur que s'il justifie qu'il a fait provision à l'échéance. Le porteur, en ce cas, ne conserve d'action que contre celui sur qui la lettre de change était tirée.
III. - A défaut de présentation à l'acceptation dans le délai stipulé par le tireur, le porteur est déchu de ses droits de recours, tant pour défaut de paiement que pour défaut d'acceptation, à moins qu'il ne résulte des termes de la stipulation que le tireur n'a entendu s'exonérer que de la garantie de l'acceptation.
IV. - Si la stipulation d'un délai pour la présentation est contenue dans un endossement, l'endosseur seul peut s'en prévaloir.
Article L511-50
Quand la présentation de la lettre de change ou la confection du protêt dans les délais prescrits est
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empêchée par un obstacle insurmontable tel que la prescription légale d'un Etat quelconque ou tout autre cas de force majeure, ces délais sont prolongés.
Le porteur est tenu de donner, sans retard, avis du cas de force majeure à son endosseur et de mentionner cet avis, daté et signé de lui, sur la lettre de change ou sur une allonge. Pour le surplus, les dispositions de l'article L. 511-42 sont applicables.
Après la cessation de la force majeure, le porteur doit, sans retard, présenter la lettre à l'acceptation ou au paiement et, s'il y a lieu, faire dresser le protêt.
Si la force majeure persiste au-delà de trente jours à partir de l'échéance, les recours peuvent être exercés, sans que ni la présentation ni la confection d'un protêt soit nécessaire, à moins que ces recours ne se trouvent suspendus pour une période plus longue, par application de l'article L. 511-61.
Pour les lettres de change à vue ou à un certain délai de vue, le délai de trente jours court de la date à laquelle le porteur a, même avant l'expiration des délais de présentation, donné avis de la force majeure à son endosseur. Pour les lettres de change à un certain délai de vue, le délai de trente jours s'augmente du délai de vue indiqué dans la lettre de change.
Ne sont point considérés comme constituant des cas de force majeure les faits purement personnels au porteur ou à celui qu'il a chargé de la présentation de la lettre ou de la confection du protêt.
Article L511-51
Indépendamment des formalités prescrites pour l'exercice de l'action en garantie, le porteur d'une lettre de change protestée faute de paiement peut, en obtenant la permission du juge, saisir conservatoirement les effets mobiliers des tireurs, accepteurs et endosseurs.
Section 9 : Des protêts
Sous-section 1 : Des formes
Article L511-52
Les protêts faute d'acceptation ou de paiement sont faits par un notaire ou par un huissier.
Le protêt doit être fait par un seul et même acte :
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1° Au domicile de celui sur qui la lettre de change était payable, ou à son dernier domicile connu ;
2° Au domicile des personnes indiquées par la lettre de change pour la payer au besoin ;
3° Au domicile du tiers qui a accepté par intervention.
En cas de fausse indication de domicile, le protêt est précédé d'un acte de perquisition.
Article L511-53
L'acte de protêt contient la transcription littérale de la lettre de change, de l'acceptation, des endossements et des recommandations qui y sont indiquées, la sommation de payer le montant de la lettre de change. Il énonce la présence ou l'absence de celui qui doit payer, les motifs du refus de payer et l'impuissance ou le refus de signer.
Article L511-54
Nul acte de la part du porteur de la lettre de change ne peut suppléer l'acte de protêt, hors les cas prévus par les articles L. 511-32 à L. 511-37 et par les articles L. 511-40 et L. 511-41.
Article L511-55
Les notaires et les huissiers sont tenus, à peine de destitution, dépens, dommages-intérêts envers les parties, de laisser copie exacte des protêts. Sous les mêmes sanctions, ils sont également tenus de remettre contre récépissé au greffier du tribunal de commerce ou du tribunal de grande instance statuant commercialement du domicile du débiteur, ou de lui adresser par lettre recommandée avec accusé de réception, une copie exacte des protêts faute de paiement des traites acceptées et des billets à ordre. Cette formalité doit être accomplie dans la quinzaine de l'acte.
Sous-section 2 : De la publicité.
Article L511-56
Le greffier du tribunal de commerce tient régulièrement à jour d'après les dénonciations qui lui sont faites par les notaires et huissiers, un état nominatif et par débiteur des protêts faute de paiement des lettres de change acceptées, des billets à ordre et des chèques ainsi que des certificats de non-paiement des chèques postaux qui lui sont dénoncés par les centres de chèques postaux. Cet état comporte des énonciations dont la liste est fixée par décret.
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Article L511-57
Après l'expiration d'un délai d'un mois à compter du jour du protêt ou de l'établissement du certificat de non-paiement du chèque postal et pendant un an à compter de la même date, tout requérant peut se faire délivrer, à ses frais, par les greffiers des tribunaux susvisés, un extrait de l'état nominatif prévu à l'article L. 511-56.
Article L511-58
Sur dépôt contre récépissé par le débiteur de l'effet et du protêt du chèque postal et du certificat de non-paiement ou d'une quittance constatant le paiement du chèque, le greffier du tribunal de commerce effectue, aux frais du débiteur, sur l'état dressé en application de l'article L. 511-56, la radiation de l'avis de protêt ou du certificat de non-paiement.
Les pièces déposées peuvent être retirées pendant l'année qui suit l'expiration du délai d'un an visé à l'article L. 511-57, après quoi le greffier en est déchargé.
Article L511-59
Toute publication, sous quelque forme que ce soit, des états établis en vertu des dispositions de la présente sous-section est interdite sous peine de dommages-intérêts.
Article L511-60
Un décret en Conseil d'Etat détermine les modalités d'application des dispositions de la présente sous-section. Il fixe notamment le montant des rémunérations dues aux notaires ou huissiers ayant dressé les protêts et aux greffiers des tribunaux de commerce pour les différentes formalités dont ils sont chargés.
Sous-section 3 : De la prorogation des délais.
Article L511-61
Dans le cas de mobilisation de l'armée, de fléau ou de calamité publique, d'interruption des services publics gérés ou soumis au contrôle de l'Etat ou des collectivités territoriales, des décrets en conseil
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des ministres peuvent, pour tout ou partie du territoire, proroger les délais dans lesquels doivent être faits les protêts et les autres actes destinés à conserver les recours pour toutes les valeurs négociables.
Dans les mêmes circonstances et sous les mêmes conditions les échéances des valeurs négociables peuvent être prorogées.
Section 10 : Du rechange.
Article L511-62
Toute personne ayant le droit d'exercer un recours peut, sauf stipulation contraire, se rembourser au moyen d'une nouvelle lettre dénommée retraite tirée à vue sur l'un de ses garants et payable au domicile de celui-ci.
La retraite comprend, outre les sommes indiquées dans les articles L. 511-45 et L. 511-46, un droit de courtage et le droit de timbre de la retraite.
Si la retraite est tirée par le porteur, le montant en est fixé d'après le cours d'une lettre de change à vue, tirée du lieu où la lettre primitive était payable sur le lieu du domicile du garant. Si la retraite est tirée par un endosseur, le montant en est fixé d'après le cours d'une lettre à vue tirée du lieu où le tireur de la retraite a son domicile sur le lieu du domicile du garant.
Article L511-63
Le rechange se règle, pour la France continentale, uniformément comme suit : 0,25 % sur les chefs-lieux de départements, 0,50 % sur les chefs-lieux d'arrondissements, 0,75 % sur toute autre place.
En aucun cas, il n'y a lieu à rechange dans le même département.
Article L511-64
Les rechanges ne peuvent être cumulés.
Chaque endosseur n'en supporte qu'un seul ainsi que le tireur.
Section 11 : De l'intervention.
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Article L511-65
Le tireur, un endosseur ou un avaliseur peut indiquer une personne pour accepter ou payer au besoin.
La lettre de change peut être, sous les conditions déterminées ci-après, acceptée ou payée par une personne intervenant pour un débiteur quelconque exposé au recours.
L'intervenant peut être un tiers, même le tiré, ou une personne déjà obligée en vertu de la lettre de change, sauf l'accepteur.
L'intervenant est tenu de donner, dans un délai de deux jours ouvrables, avis de son intervention à celui pour qui il est intervenu. En cas d'inobservation de ce délai, il est responsable, s'il y a lieu, du préjudice causé par sa négligence sans que les dommages-intérêts puissent dépasser le montant de la lettre de change.
Sous-section 1 : De l'acceptation par intervention.
Article L511-66
L'acceptation par intervention peut avoir lieu dans tous les cas où des recours sont ouverts avant l'échéance au porteur d'une lettre de change acceptable.
Lorsqu'il a été indiqué sur la lettre de change une personne pour l'accepter ou la payer au besoin au lieu du paiement, le porteur ne peut exercer avant l'échéance ses droits de recours contre celui qui a apposé l'indication et contre les signataires subséquents à moins qu'il n'ait présenté la lettre de change à la personne désignée et que, celle-ci ayant refusé l'acceptation, ce refus n'ait été constaté par un protêt.
Dans les autres cas d'intervention, le porteur peut refuser l'acceptation par intervention.
Toutefois, s'il l'admet, il perd les recours qui lui appartiennent avant l'échéance contre celui pour qui l'acceptation a été donnée et contre les signataires subséquents.
L'acceptation par intervention est mentionnée sur la lettre de change ; elle est signée par l'intervenant. Elle indique pour le compte de qui elle a lieu ; à défaut de cette indication, l'acceptation est réputée donnée pour le tireur.
L'accepteur par intervention est obligé envers le porteur et envers les endosseurs postérieurs à celui pour le compte duquel il est intervenu, de la même manière que celui-ci.
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Malgré l'acceptation par intervention, celui pour lequel elle a été faite et ses garants peuvent exiger du porteur, contre remboursement de la somme indiquée à l'article L. 511-45, la remise de la lettre de change, du protêt et d'un compte acquitté, s'il y a lieu.
Sous-section 2 : Du paiement par intervention.
Article L511-67
Le paiement par intervention peut avoir lieu dans tous les cas où, soit à l'échéance, soit avant l'échéance, des recours sont ouverts au porteur.
Le paiement doit comprendre toute la somme qu'aurait à acquitter celui pour lequel il a lieu.
Il doit être fait au plus tard le lendemain du dernier jour admis pour la confection du protêt faute de paiement.
Article L511-68
Si la lettre de change a été acceptée par des intervenants ayant leur domicile au lieu du paiement ou si des personnes ayant leur domicile dans ce même lieu ont été indiquées pour payer au besoin, le porteur doit présenter la lettre à toutes ces personnes et faire dresser, s'il y a lieu, un protêt faute de paiement au plus tard le lendemain du dernier jour admis pour la confection du protêt.
A défaut de protêt dressé dans ce délai, celui qui a indiqué le besoin ou pour le compte de qui la lettre a été acceptée et les endosseurs postérieurs cessent d'être obligés.
Article L511-69
Le porteur qui refuse le paiement par intervention perd ses recours contre ceux qui auraient été libérés.
Article L511-70
Le paiement par intervention doit être constaté par un acquit donné sur la lettre de change, avec indication de celui pour qui il est fait. A défaut de cette indication, le paiement est considéré comme fait pour le tireur.
La lettre de change et le protêt, s'il en a été dressé un, doivent être remis au payeur par intervention.
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Article L511-71
Le payeur par intervention acquiert les droits résultant de la lettre de change contre celui pour lequel il a payé et contre ceux qui sont tenus vis-à-vis de ce dernier en vertu de la lettre de change. Toutefois, il ne peut endosser la lettre de change à nouveau.
Les endosseurs postérieurs au signataire pour qui le paiement a eu lieu sont libérés.
En cas de concurrence pour le paiement par intervention, celui qui opère le plus de libération est préféré. Celui qui intervient, en connaissance de cause, contrairement à cette règle, perd ses recours contre ceux qui auraient été libérés.
Section 12 : De la pluralité d'exemplaires et de copies.
Sous-section 1 : De la pluralité d'exemplaires.
Article L511-72
La lettre de change peut être tirée en plusieurs exemplaires identiques.
Ces exemplaires doivent être numérotés dans le texte même du titre ; faute de quoi, chacun d'eux est considéré comme une lettre de change distincte.
Tout porteur d'une lettre n'indiquant pas qu'elle a été tirée en un exemplaire unique peut exiger à ses frais la délivrance de plusieurs exemplaires. A cet effet, il doit s'adresser à son endosseur immédiat qui est tenu de lui prêter ses soins pour agir contre son propre endosseur et ainsi de suite en remontant jusqu'au tireur. Les endosseurs sont tenus de reproduire les endossements sur les nouveaux exemplaires.
Article L511-73
Le paiement fait sur un des exemplaires est libératoire, alors même qu'il n'est pas stipulé que ce paiement annule l'effet des autres exemplaires. Toutefois, le tiré reste tenu à raison de chaque exemplaire accepté dont il n'a pas obtenu la restitution.
L'endosseur qui a transféré les exemplaires à différentes personnes, ainsi que les endosseurs subséquents, sont tenus à raison de tous les exemplaires portant leur signature et qui n'ont pas été restitués.
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Article L511-74
Celui qui a envoyé un des exemplaires à l'acceptation doit indiquer sur les autres exemplaires le nom de la personne entre les mains de laquelle cet exemplaire se trouve. Celle-ci est tenue de le remettre au porteur légitime d'un autre exemplaire. Si elle s'y refuse, le porteur ne peut exercer de recours qu'après avoir fait constater par un protêt :
1° Que l'exemplaire envoyé à l'acceptation ne lui a pas été remis sur sa demande ;
2° Que l'acceptation ou le paiement n'a pu être obtenu sur un autre exemplaire.
Sous-section 2 : Des copies.
Article L511-75
Tout porteur d'une lettre de change a le droit d'en faire des copies.
La copie doit reproduire exactement l'original avec les endossements et toutes les autres mentions qui y figurent. Elle doit indiquer où elle s'arrête.
Elle peut être endossée et avalisée de la même manière et avec les mêmes effets que l'original.
Article L511-76
La copie doit désigner le détenteur du titre original. Celui-ci est tenu de remettre ledit titre au porteur légitime de la copie.
S'il s'y refuse, le porteur ne peut exercer le recours contre les personnes qui ont endossé ou avalisé la copie qu'après avoir fait constater par un protêt que l'original ne lui a pas été remis sur sa demande.
Si le titre original, après le dernier endossement survenu avant que la copie ne soit pas faite, porte la clause : " à partir d'ici, l'endossement ne vaut que sur la copie " ou toute autre formule équivalente, un endossement signé ultérieurement sur l'original est nul.
Section 13 : Des altérations.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Article L511-77
En cas d'altération du texte d'une lettre de change, les signataires postérieurs à cette altération sont tenus dans les termes du texte altéré ; les signataires antérieurs le sont dans les termes du texte originaire.
Section 14 : De la prescription.
Article L511-78
Toutes actions résultant de la lettre de change contre l'accepteur se prescrivent par trois ans à compter de la date de l'échéance.
Les actions du porteur contre les endosseurs et contre le tireur se prescrivent par un an à partir de la date du protêt dressé en temps utile ou de celle de l'échéance, en cas de clause de retour sans frais.
Les actions des endosseurs les uns contre les autres et contre le tireur se prescrivent par six mois à partir du jour où l'endosseur a remboursé la lettre ou du jour où il a été lui-même actionné.
Les prescriptions, en cas d'action exercée en justice, ne courent que du jour de la dernière poursuite juridique. Elles ne s'appliquent pas s'il y a eu condamnation, ou si la dette a été reconnue par acte séparé.
L'interruption de la prescription n'a d'effet que contre celui à l'égard duquel l'acte interruptif a été fait.
Néanmoins, les prétendus débiteurs sont tenus, s'ils en sont requis, d'affirmer, sous serment, qu'ils ne sont plus redevables, et leur conjoint survivant, leurs héritiers ou ayants cause, qu'ils estiment de bonne foi qu'il n'est plus rien dû.
Section 15 : Dispositions générales.
Article L511-79
Le paiement d'une lettre de change dont l'échéance est à un jour férié légal ne peut être exigé que le premier jour ouvrable qui suit. De même, tous autres actes relatifs à la lettre de change, notamment la présentation à l'acceptation et le protêt, ne peuvent être faits qu'un jour ouvrable.
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Lorsqu'un de ces actes doit être accompli dans un certain délai dont le dernier jour est un jour férié légal, ce délai est prorogé jusqu'au premier jour ouvrable qui en suit l'expiration. Les jours fériés intermédiaires sont compris dans la computation du délai.
Article L511-80
Aux jours fériés légaux sont assimilés les jours où, aux termes des lois en vigueur, aucun paiement ne peut être exigé, ni aucun protêt dressé.
Article L511-81
Les délais légaux ou conventionnels ne comprennent pas le jour à compter duquel ils commencent à courir.
Aucun jour de grâce ni légal ni judiciaire n'est admis sauf dans les cas prévus par les articles L. 511-38 et L. 511-50.
Chapitre II : Du billet à ordre.
Article L512-1
I. - Le billet à ordre contient ;
1° La clause à ordre ou la dénomination du titre insérée dans le texte même et exprimée dans la langue employée pour la rédaction de ce titre ;
2° La promesse pure et simple de payer une somme déterminée ;
3° L'indication de l'échéance ;
4° Celle du lieu où le paiement doit s'effectuer ;
5° Le nom de celui auquel ou à l'ordre duquel le paiement doit être fait ;
6° L'indication de la date et du lieu où le billet est souscrit ;
7° La signature de celui qui émet le titre dénommé souscripteur.
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II. - Le billet à ordre dont l'échéance n'est pas indiquée est considéré comme payable à vue.
III. - A défaut d'indication spéciale le lieu de création du titre est réputé être le lieu de paiement et, en même temps, le lieu du domicile du souscripteur.
IV. - Le billet à ordre n'indiquant pas le lieu de sa création est considéré comme souscrit dans le lieu désigné à côté du nom du souscripteur.
Article L512-2
Le titre dans lequel une des énonciations indiquées au I de l'article L. 512-1 fait défaut ne vaut pas comme billet à ordre, sauf dans les cas déterminés aux II à IV de l'article L. 512-1.
Article L512-3
Sont applicables au billet à ordre, en tant qu'elles ne sont pas incompatibles avec la nature de ce titre, les dispositions des articles L. 511-2 à L. 511-5 L. 511-8 à L. 511-14, L. 511-18, L. 511-22 à L. 511-47, L. 511-49 à L. 511-55, L. 511-62 à L. 511-65, L. 511-67 à L. 511-71, L. 511-75 à L. 511-81, relatives à la lettre de change.
Article L512-4
Sont également applicables au billet à ordre les dispositions de l'article L. 511-21 relatives à l'aval. Dans le cas prévu au sixième alinéa de cet article, si l'aval n'indique pas pour le compte de qui il a été donné, il est réputé l'avoir été pour le compte du souscripteur du billet à ordre.
Article L512-5
Les dispositions des articles L. 511-56 à L. 511-61 relatives à la publicité et à la prorogation des délais de protêts sont applicables au protêt dressé faute de paiement d'un billet à ordre.
Article L512-6
Le souscripteur d'un billet à ordre est obligé de la même manière que l'accepteur d'une lettre de change.
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Article L512-7
Les billets à ordre payables à un certain délai de vue doivent être présentés au visa du souscripteur dans les délais fixés à l'article L. 511-15. Le délai de vue court de la date du visa signé du souscripteur sur le billet. Le refus du souscripteur de donner son visa daté est constaté par un protêt, dont la date sert de point de départ au délai de vue.
Article L512-8
Le règlement par billet à ordre n'est permis au débiteur que s'il a été expressément prévu par les parties et mentionné sur la facture. Même en ce cas, si le billet à ordre n'est pas parvenu au créancier dans les trente jours qui suivent l'envoi de la facture, le créancier peut émettre une lettre de change que le débiteur est tenu d'accepter selon les conditions prévues aux avant dernier et dernier alinéas de l'article L. 511-15. Toute stipulation contraire est réputée non écrite.
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Partie législative
LIVRE V : Des effets de commerce et des garanties
TITRE II : Des garanties
Chapitre Ier : Dispositions générales sur le gage commercial
Article L521-1
Le gage constitué soit par un commerçant, soit par un individu non commerçant, pour un acte de commerce, se constate à l'égard des tiers, comme à l'égard des parties contractantes, conformément aux dispositions de l'article L. 110-3.
Le gage, à l'égard des valeurs négociables, peut aussi être établi par un endossement régulier, indiquant que les valeurs ont été remises en garantie.
A l'égard des actions, des parts d'intérêts et des obligations nominatives des sociétés financières, industrielles, commerciales ou civiles, dont la transmission s'opère par un transfert sur les registres de la société, ainsi qu'à l'égard des inscriptions nominatives sur le grand-livre de la dette publique, le gage peut également être établi par un transfert, à titre de garantie, inscrit sur lesdits registres.
Il n'est pas dérogé aux dispositions des articles 2355 à 2366 du code civil en ce qui concerne les créances mobilières.
Les effets de commerce donnés en gage sont recouvrables par le créancier gagiste.
Article L521-3
A défaut de paiement à l'échéance, le créancier peut faire procéder à la vente publique des objets donnés en gage huit jours après une simple signification faite au débiteur et au tiers bailleur de gage, s'il y en a un, et selon les modalités prévues par le présent article, sans que la convention puisse y déroger.
Les ventes autres que celles dont les prestataires de services d'investissement sont chargés sont faites par les courtiers. Toutefois, sur la requête des parties, le président du tribunal de commerce peut désigner pour y procéder une autre classe d'officiers publics.
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Les dispositions des articles L. 322-9 à L. 322-13 sur les ventes publiques sont applicables aux ventes prévues par l'alinéa précédent.
Le créancier peut également demander l'attribution judiciaire du gage ou convenir de son appropriation conformément aux articles 2347 et 2348 du code civil.
Chapitre II : Des dépôts en magasins généraux
Section 1 : De l'agrément, de la cession et de la cessation d'exploitation.
Article L522-1
L'exploitant d'un établissement à usage d'entrepôt où des industriels, commerçants, agriculteurs ou artisans déposent des matières premières, des marchandises, des denrées ou des produits fabriqués, ne peut émettre des bulletins de gage négociables et qualifier son établissement de magasin général que s'il a obtenu un agrément du préfet.
Article L522-2
L'arrêté préfectoral statuant sur la demande d'agrément est pris après avis des organismes professionnels et interprofessionnels prévus par le décret en Conseil d'Etat pris pour l'application du présent chapitre. Il est motivé.
Article L522-3
La cession d'un magasin général est subordonnée à l'agrément du préfet, donné dans les mêmes formes.
Article L522-4
Toute cessation d'exploitation non suivie de cession est subordonnée à un préavis de six mois, adressé par l'exploitant au préfet. A l'expiration de ce délai, et si les intérêts généraux du commerce l'exigent, un administrateur provisoire peut être désigné par le président du tribunal de grande instance statuant comme en matière de référé à la demande du ministère public.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Article L522-5
Il est interdit aux exploitants des magasins généraux de se livrer, soit directement, soit indirectement, que ce soit pour leur propre compte ou pour le compte d'autrui, à titre de commissionnaire ou à tout autre titre, à aucun commerce ou spéculation ayant pour objet les marchandises pour lesquelles ils sont habilités à délivrer des récépissés-warrants.
Article L522-6
Sont réputées tomber sous le coup de l'article L. 522-5 les sociétés exploitantes de magasins généraux dont l'un des associés, possédant plus de 10 % du capital social, exerce une activité incompatible avec les dispositions dudit article.
Article L522-7
Toute société exploitante qui, par suite d'une modification intervenue dans la répartition du capital entre les associés, ne se trouve plus dans les conditions exigées par l'article L. 522-6 doit, dans le mois qui suit cette modification, solliciter le maintien de l'agrément dont elle est bénéficiaire.
L'agrément reste valable jusqu'à ce que le préfet ait statué par arrêté.
Le préfet peut, soit prononcer le maintien de l'agrément dans les conditions prévues à l'article L. 522-11, soit en prononcer le retrait conformément aux dispositions de l'article L. 522-39.
Article L522-8
Lorsque l'ouverture d'un établissement est subordonnée à l'intervention d'un décret ou d'un arrêté ministériel, l'agrément de cet établissement comme magasin général est accordé par ce décret ou cet arrêté, après consultation des organismes visés à l'article L. 522-2.
Article L522-9
Les exploitants d'établissements agréés n'ont pas à solliciter l'autorisation prévue par les textes réglementant les créations, extensions ou transferts d'établissements.
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Article L522-10
Les décrets ou arrêtés agréant les établissements comme magasins généraux peuvent comporter, pour l'exploitant, l'autorisation d'ouvrir une salle de ventes publiques de marchandises en gros.
Article L522-11
I. - Les entreprises ne répondant pas aux conditions fixées aux articles L. 522-5 et L. 522-6 peuvent cependant solliciter l'agrément comme magasins généraux des entrepôts qu'elles exploitent ou projettent d'exploiter et obtenir, à titre exceptionnel, cet agrément s'il est reconnu que les intérêts du commerce l'exigent.
II. - Dans ce cas :
1° La demande d'agrément fait l'objet à la préfecture et dans la commune du lieu de l'établissement des mesures de publicité qui sont prévues par voie réglementaire ;
2° L'arrêté d'agrément fixe, en sus du cautionnement prévu à l'article L. 522-12, un cautionnement spécial au moins égal à celui-ci. Le cautionnement spécial est fourni soit en numéraire, soit par une caution bancaire agréée par le tribunal de commerce dans le ressort duquel est situé l'établissement.
Article L522-12
L'arrêté préfectoral autorisant l'ouverture du magasin général soumet son exploitant à l'obligation d'un cautionnement.
Sont soumis à la même obligation les établissements visés à l'article L. 522-8.
Le montant de ce cautionnement, proportionnel à la surface affectée au magasinage, est compris entre deux limites fixées par décret en Conseil d'Etat.
Article L522-13
Un ou plusieurs règlements types fixent, dans le cadre des dispositions du présent chapitre et du décret en Conseil d'Etat pris pour son application, les conditions de fonctionnement des établissements.
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Section 2 : Des obligations, des responsabilités et des garanties.
Article L522-14
Toute personne qui remet une marchandise en dépôt à un magasin général est tenue d'en déclarer la nature et la valeur à l'exploitant.
Article L522-15
Les exploitants de magasins généraux sont responsables, dans les limites de la valeur déclarée, de la garde et la conservation des dépôts qui leur sont confiés.
Ils ne sont pas responsables des avaries et déchets naturels provenant de la nature et du conditionnement des marchandises ou des cas de force majeure.
Les règlements types et les règlements particuliers prévus aux articles L. 522-13 et L. 522-17 précisent les obligations des exploitants en ce qui concerne la conservation des dépôts.
Article L522-16
Les marchandises susceptibles d'être warrantées sont obligatoirement assurées contre l'incendie par les polices générales du magasin.
Toutefois, pour les exploitants de magasins généraux établis dans les ports maritimes, cette obligation est suspendue à l'égard des marchandises entreposées couvertes par une assurance maritime tant que cette assurance garantit ces risques.
Si, pendant cette période, un sinistre survient, la responsabilité de l'exploitant du magasin général n'est pas engagée vis-à-vis des déposants, des compagnies d'assurances et des porteurs de warrants.
A l'expiration de ladite période, les marchandises susmentionnées doivent être assurées par les polices générales du magasin.
Article L522-17
Chaque établissement est doté d'un règlement particulier qui complète les dispositions générales des règlements types en fixant les conditions d'exploitation prenant en compte la nature et la situation du magasin.
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Article L522-18
Au règlement prévu à l'article L. 522-17 sont annexés un tarif général et, éventuellement, des tarifs spéciaux pour la rétribution du magasinage, dans les termes du présent chapitre, et des services rendus à cette occasion aux déposants. La perception des taxes correspondantes a lieu indistinctement et sans aucune faveur.
Article L522-19
Les tarifs sont communiqués au préfet un mois au moins avant l'ouverture du magasin général.
Toute modification des tarifs existants doit lui être notifiée, ainsi qu'aux organismes visés à l'article L. 522-2, et ne devient exécutoire qu'un mois après cette notification. Toutefois, ce délai n'est pas applicable aux exploitants dont les tarifs sont soumis à une autorisation administrative.
Section 3 : Du fonctionnement et du contrôle.
Article L522-20
Les exploitants de magasins généraux peuvent prêter sur nantissement des marchandises qu'ils reçoivent en dépôt ou négocier les warrants qui les représentent.
Article L522-21
Les présidents, gérants, directeurs et le personnel des exploitations de magasins généraux sont, sous les peines prévues à l'article 226-13 du code pénal, tenus au secret professionnel pour tout ce qui regarde les marchandises entreposées.
Article L522-22
Les magasins généraux sont placés sous le contrôle de l'administration, dans les conditions fixées par décret en Conseil d'Etat.
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Article L522-23
Les dispositions du présent chapitre, le décret pris pour l'application desdites dispositions, le tarif et les règlements, sont affichés dans la partie des bureaux du magasin où le public a accès.
Section 4 : Des récépissés et des warrants.
Article L522-24
Il est délivré à chaque déposant un ou plusieurs récépissés. Ces récépissés énoncent les nom, profession et domicile du déposant ainsi que la nature de la marchandise déposée et les indications propres à en établir l'identité et à en déterminer la valeur.
Les marchandises fongibles déposées en magasin général et sur lesquelles il a été délivré un récépissé et un warrant peuvent être remplacées par des marchandises de même nature, de même espèce et de même qualité. La possibilité de cette substitution doit être mentionnée à la fois sur le récépissé et sur le warrant.
Les droits et privilèges du porteur du récépissé et du porteur du warrant sont reportés sur les marchandises substituées.
Il peut être délivré un récépissé et un warrant sur un lot de marchandises fongibles à prendre dans un lot plus important.
Article L522-25
A chaque récépissé de marchandise est annexé, sous la dénomination de warrant, un bulletin de gage contenant les mêmes mentions que le récépissé.
Les récépissés de marchandises et les warrants y annexés sont extraits d'un registre à souches.
Article L522-26
Les récépissés et les warrants peuvent être transférés par voie d'endossement, ensemble ou séparément.
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Article L522-27
Tout cessionnaire du récépissé ou du warrant peut exiger la transcription sur les registres à souches dont ils sont extraits de l'endossement fait à son profit, avec indication de son domicile.
Article L522-28
L'endossement du warrant séparé du récépissé vaut nantissement de la marchandise au profit du cessionnaire du warrant.
L'endossement du récépissé transmet au cessionnaire le droit de disposer de la marchandise, à charge pour lui, lorsque le warrant n'est pas transféré avec le récépissé, de payer la créance garantie par le warrant ou d'en laisser payer le montant sur le prix de la vente de la marchandise.
Article L522-29
L'endossement du récépissé et du warrant, transférés ensemble ou séparément, doit être daté.
L'endossement du warrant séparé du récépissé doit, en outre, énoncer le montant intégral, en capital et intérêts, de la créance garantie, la date de son échéance et les nom, profession et domicile du créancier.
Le premier cessionnaire du warrant doit immédiatement faire transcrire l'endossement sur les registres du magasin, avec les énonciations dont il est accompagné. Il est fait mention de cette transcription sur le warrant.
Article L522-30
Le porteur du récépissé séparé du warrant peut, même avant l'échéance, payer la créance garantie par le warrant.
Si le porteur du warrant n'est pas connu ou si, étant connu, il n'est pas d'accord avec le débiteur sur les conditions auxquelles aurait lieu l'anticipation de paiement, la somme due, y compris les intérêts jusqu'à l'échéance, est consignée à l'administration du magasin général qui en demeure responsable. Cette consignation libère la marchandise.
Article L522-31
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A défaut de paiement à l'échéance, le porteur du warrant séparé du récépissé, peut, huit jours après le protêt, et sans aucune formalité de justice, faire procéder par officiers publics à la vente publique aux enchères et en gros de la marchandise engagée, conformément aux dispositions du livre III relatives aux ventes publiques de marchandises en gros.
Dans le cas où le souscripteur primitif du warrant l'a remboursé, il peut faire procéder à la vente de la marchandise, comme il est dit à l'alinéa précédent, contre le porteur du récépissé, huit jours après l'échéance et sans qu'il soit besoin d'aucune mise en demeure.
Article L522-32
I. - Le créancier est payé de sa créance sur le prix, directement et sans formalité de justice, par privilège et préférence à tous créanciers, sans autre déduction que celles :
1° Des contributions indirectes, et droits de douane dus par la marchandise ;
2° Des frais de vente, de magasinage et autres frais pour la conservation de la chose.
II. - Si le porteur du récépissé ne se présente pas lors de la vente de la marchandise, la somme excédant celle qui est due au porteur du warrant est consignée à l'administration du magasin général, comme il est dit à l'article L. 522-30.
Article L522-33
Le porteur du warrant n'a de recours contre l'emprunteur et les endosseurs qu'après avoir exercé ses droits sur la marchandise et en cas d'insuffisance.
Le délai fixé par l'article L. 511-42 pour l'exercice du recours contre les endosseurs, ne court que du jour où la vente de la marchandise est réalisée.
Le porteur du warrant perd, en tout cas, son recours contre les endosseurs s'il n'a pas fait procéder à la vente dans le mois qui suit la date du protêt.
Article L522-34
Le porteur du récépissé et du warrant a, sur les indemnités d'assurance dues en cas de sinistre, les mêmes droits et privilèges que sur la marchandise assurée.
Article L522-35
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Les établissements publics de crédit peuvent recevoir les warrants comme effets de commerce, avec dispense d'une des signatures exigées par leurs statuts.
Article L522-36
Celui qui a perdu un récépissé ou un warrant peut demander et obtenir par ordonnance du juge, en justifiant de sa propriété et en donnant caution, un duplicata s'il s'agit du récépissé, le paiement de la créance garantie s'il s'agit du warrant.
Si dans ce cas le souscripteur du warrant ne s'est pas libéré à l'échéance, le tiers porteur dont l'endos aura été transcrit sur les registres du magasin général pourra être autorisé par ordonnance du juge, à charge de fournir caution, à faire procéder à la vente de la marchandise engagée dans les conditions déterminées à l'article L. 522-31.
Le protêt prévu audit article donne copie des mentions telles qu'elles figurent sur le registre du magasin général.
Article L522-37
En cas de perte du récépissé, la caution prévue à l'article précédent est libérée à l'expiration d'un délai de cinq ans, lorsque les marchandises en faisant l'objet n'ont pas été revendiquées par un tiers au magasin général.
En cas de perte du warrant, la caution est libérée à l'expiration d'un délai de trois ans, à compter de la transcription de l'endos.
Section 5 : Des sanctions.
Article L522-38
Il est interdit d'ouvrir et d'exploiter sans l'autorisation prescrite à l'article L. 522-1 un établissement recevant en dépôt des marchandises pour lesquelles sont délivrés aux déposants, sous le nom de warrants, ou tout autre nom, des bulletins de gages négociables.
Toute infraction à cette prohibition est punie d'une amende de 6000 euros et d'un emprisonnement d'un an.
Le tribunal peut ordonner que le jugement de condamnation sera publié intégralement ou par extraits dans les journaux qu'il désigne et affiché dans les lieux qu'il indique, notamment aux portes
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du domicile et des magasins du condamné, le tout aux frais du condamné, sans toutefois que les frais de cette publication puissent dépasser le maximum de l'amende encourue.
Article L522-39
En cas d'infraction commise par l'exploitant d'un magasin général aux dispositions du présent chapitre ou des décrets en Conseil d'Etat pris pour l'application desdites dispositions, le préfet peut, l'exploitant entendu et après consultation des organismes professionnels et interprofessionnels visés à l'article L. 522-2, prononcer par arrêté, à titre temporaire ou définitif, le retrait de l'agrément.
Dans ce cas, le président du tribunal statuant comme en matière de référé, désigne, à la demande du ministère public, un administrateur provisoire et détermine les pouvoirs dont il dispose pour l'exploitation de l'établissement.
En cas de retrait d'agrément à titre définitif et lorsque l'intérêt du commerce local exige le maintien du magasin général, les pouvoirs de l'administrateur provisoire peuvent comporter la mise aux enchères publiques du fonds de commerce et du matériel nécessaire à son exploitation.
Le retrait d'agrément à titre définitif peut également être prononcé, après consultation des organismes professionnels et interprofessionnels, à l'encontre des établissements qui auraient cessé de fonctionner comme magasins généraux ou comme entrepôts pendant au moins deux ans.
Article L522-40
Un décret en Conseil d'Etat fixe les conditions d'application des dispositions du présent chapitre.
Chapitre III : Du warrant hôtelier
Article L523-1
Tout exploitant d'hôtel peut emprunter sur le mobilier commercial, le matériel et l'outillage servant à son exploitation, même devenus immeubles par destination, tout en conservant la garde dans les locaux de l'hôtel.
Les objets servant de garantie à la créance restent, jusqu'au remboursement des sommes empruntées, le gage du prêteur et de ses ayants droit.
L'emprunteur est responsable desdits objets qui demeurent confiés à ses soins, sans aucune indemnité opposable au prêteur et à ses ayants droit.
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Article L523-2
L'exploitant d'hôtel, lorsqu'il n'est pas propriétaire ou usufruitier de l'immeuble dans lequel il exerce son industrie, doit, avant tout emprunt, aviser par acte extrajudiciaire le propriétaire ou l'usufruitier du fonds loué ou leur mandataire légal, de la nature, de la quantité et de la valeur des objets constitués en gage, ainsi que du montant des sommes à emprunter. Ce même avis doit être réitéré par lettre, par l'intermédiaire du greffier du tribunal d'instance compétent au lieu d'exploitation de l'hôtel meublé. La lettre d'avis est remise au greffier qui doit la viser, l'enregistrer et l'envoyer sous forme de pli d'affaire recommandé avec accusé de réception.
Le propriétaire, l'usufruitier ou leur mandataire légal, dans un délai de quinze jours francs à partir de la notification de l'acte précité, peuvent s'opposer à l'emprunt par acte extrajudiciaire adressé au greffier, lorsque l'emprunteur n'a pas payé les loyers échus, six mois de loyers en cours et six mois à échoir.
L'emprunteur peut obtenir mainlevée de l'opposition moyennant l'acquittement des loyers précités.
Le défaut de réponse de la part du propriétaire, de l'usufruitier, ou de leur mandataire légal, dans le délai ci-dessus fixé, est considéré comme une non-opposition à l'emprunt.
Le privilège du bailleur est réduit, jusqu'à concurrence de la somme prêtée, sur les objets servant de gage à l'emprunt. Il subsiste dans les termes de droit si l'emprunt est réalisé malgré l'opposition du bailleur.
Le bailleur peut toujours renoncer, soit à son opposition, soit au paiement des loyers ci-dessus indiqués, en apposant sa signature sur le registre prévu à l'article L. 523-3.
En cas de conflit entre le privilège du porteur du warrant hôtelier et des créanciers hypothécaires, leur rang est déterminé par les dates respectives de la transcription du premier endossement du warrant et des inscriptions d'hypothèques.
Article L523-3
Il est tenu, dans chaque greffe de tribunal de commerce, un registre à souche, coté et paraphé, dont le volant et la souche portent chacun, d'après les déclarations de l'emprunteur, des mentions dont la liste est fixée par décret.
Le volant contenant ces mentions constitue le warrant hôtelier.
Article L523-4
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Le warrant hôtelier est délivré par le greffier du tribunal de commerce dans le ressort duquel est exploité l'hôtel. L'emprunteur qui le reçoit donne décharge de la remise du titre, en apposant sa signature avec la date sur le registre. Il ne peut être délivré qu'un seul warrant pour les mêmes objets. Le warrant est transféré par l'emprunteur au prêteur par voie d'endossement daté et signé.
Le prêteur doit, dans un délai de cinq jours, faire transcrire sur le registre le premier endossement. Mention de cette transcription est également énoncée sur le warrant.
Article L523-5
Le warrant est transmissible par voie d'endossement établi suivant les prescriptions de l'article L. 523-4, mais non soumis à la formalité de la transcription comme le premier endossement.
Tous ceux qui ont signé ou endossé un warrant sont tenus à la garantie solidaire envers le porteur.
L'escompteur et les réescompteurs d'un warrant sont tenus d'aviser, dans les huit jours, le greffier du tribunal de commerce, par pli recommandé, avec accusé de réception, ou verbalement contre récépissé de l'avis.
L'emprunteur peut, par une mention spéciale inscrite sur le warrant, dispenser l'escompteur et les réescompteurs de donner cet avis. En ce cas, il n'y a pas lieu à application des dispositions des deux derniers alinéas de l'article L. 523-8.
Article L523-6
Le greffier est tenu de délivrer à tout prêteur qui le requiert, soit un état des warrants, soit un certificat établissant qu'il n'existe pas d'inscription. Il est tenu de faire la même délivrance à tout hôtelier ressortissant de son greffe qui le requiert, mais seulement en ce qui concerne le fonds exploité par lui.
Cet état ne remonte pas à une période antérieure de cinq années.
Article L523-7
La radiation de l'inscription est opérée sur la justification, soit du remboursement de la créance garantie par le warrant, soit d'une mainlevée régulière.
L'emprunteur qui a remboursé son warrant fait constater le remboursement au greffe du tribunal de commerce et mention du remboursement ou de la mainlevée est faite sur le registre tenu par le greffier qui lui délivre un certificat de radiation de l'inscription.
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L'inscription est radiée d'office après cinq ans, si elle n'a pas été renouvelée avant l'expiration de ce délai. Si elle est inscrite à nouveau après la radiation d'office, elle ne vaut, à l'égard des tiers, que du jour de la date.
Article L523-8
L'emprunteur conserve le droit de vendre les objets warrantés à l'amiable et avant le paiement de la créance, même sans le concours du prêteur, mais leur tradition à l'acquéreur ne peut être opérée qu'après désintéressement du créancier.
L'emprunteur, même avant l'échéance, peut rembourser la créance garantie par le warrant ; si le porteur du warrant refuse les offres du débiteur, celui-ci peut, pour se libérer, consigner la somme offerte, en observant les formalités prescrites par les articles 1426 à 1429 du code de procédure civile. Les offres sont faites au dernier ayant droit connu par les avis donnés au greffier, en conformité de l'article L. 523-5. Sur le vu d'une quittance de consignation régulière et suffisante, le président du tribunal de commerce dans le ressort duquel le warrant est inscrit rend une ordonnance aux termes de laquelle le gage est transporté sur la somme consignée.
En cas de remboursement anticipé d'un warrant, l'emprunteur bénéficie des intérêts qui restaient à courir jusqu'à l'échéance du warrant, déduction faite d'un délai de dix jours.
Article L523-9
Les établissements publics de crédit peuvent recevoir les warrants hôteliers comme effets de commerce, avec dispense d'une des signatures exigées par leurs statuts.
Article L523-10
Les porteurs de warrants ont, sur les indemnités d'assurances, en cas de sinistre, les mêmes droits et privilèges que sur les objets assurés.
Article L523-11
Le porteur de warrant doit réclamer à l'emprunteur paiement de sa créance échue, et, à défaut de ce paiement, réitérer sa réclamation au débiteur par lettre recommandée avec demande d'avis de réception.
Faute du paiement du warrant à l'échéance le porteur a pour la réalisation du gage, les droits que confèrent aux créanciers privilégiés ou garantis par un nantissement les dispositions des articles L. 143-5 à L. 143-15.
Toutefois, le bailleur peut toujours exercer son privilège jusqu'à concurrence de six mois de loyers
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échus, six mois de loyers en cours et six mois de loyers à échoir.
Si le porteur fait procéder à la vente, il ne peut plus exercer son recours contre les endosseurs et même contre l'emprunteur qu'après avoir fait valoir ses droits sur le prix des objets warrantés. En cas d'insuffisance du prix pour le désintéresser, un délai de trois mois lui est imparti, à dater du jour où la vente est réalisée, pour exercer son recours contre les endosseurs.
Article L523-12
Le porteur du warrant est payé directement de sa créance sur le prix de vente, par privilège et de préférence à tous créanciers, et sans autre déduction que celle des contributions directes et des frais de vente et sans autre formalité qu'une ordonnance du président du tribunal de commerce.
Article L523-13
La fausse déclaration ou le fait pour tout emprunteur de constituer un warrant sur des objets dont il n'est pas propriétaire ou déjà donnés en gage ou en nantissement ainsi que le fait pour tout emprunteur de détourner, dissiper ou volontairement détériorer, au préjudice de son créancier le gage de celui-ci, sont punis, selon les cas, des peines prévues pour l'escroquerie ou l'abus de confiance, aux articles 313-1, 313-7, 313-8 ou 314-1 et 314-10 du code pénal.
Article L523-14
Le montant des droits à percevoir par le greffier est fixé par décret en Conseil d'Etat.
Les avis prescrits par les dispositions du présent chapitre sont envoyés en la forme et avec la taxe des papiers d'affaires recommandés.
Article L523-15
Sont considérées comme nulles et non avenues toutes conventions contraires aux dispositions du présent chapitre, et notamment toutes stipulations qui ont pour effet de porter atteinte au droit des locataires d'instituer le warrant hôtelier.
Chapitre IV : Du warrant pétrolier
Article L524-1
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Les opérateurs, détenteurs de stocks de pétrole brut ou de produits pétroliers peuvent warranter des stocks en garantie de leurs emprunts, tout en en conservant la garde dans leurs usines ou dépôts.
Les produits warrantés restent, jusqu'au remboursement des sommes avancées, le gage du porteur du warrant.
Le warrant est établi sur une certaine quantité de marchandises d'une qualité spécifiée, sans qu'il soit nécessaire de séparer matériellement les produits warrantés des autres produits similaires détenus par l'emprunteur.
L'emprunteur est responsable de la marchandise qui reste confiée à ses soins et à sa garde, et cela sans aucune indemnité opposable au bénéfice du warrant.
Article L524-2
Pour établir la pièce qui est dénommée " warrant pétrolier ", le greffier du tribunal de commerce de la situation des produits à warranter inscrit, d'après les déclarations de l'emprunteur, la nature, la qualité, la quantité, la valeur, le lieu de situation des produits qui doivent servir de gage pour l'emprunt, le montant des sommes empruntées, ainsi que les clauses et conditions particulières relatives au warrant pétrolier, arrêtées entre les parties.
Le warrant est signé par l'emprunteur.
Il n'est valable que pour trois ans au plus, mais peut être renouvelé.
Article L524-3
Le warrant indique si le produit warranté est assuré ou non et, en cas d'assurance, le nom et l'adresse de l'assureur.
Faculté est donnée aux prêteurs de continuer ladite assurance jusqu'à la réalisation du warrant.
Les porteurs de warrants ont, sur les indemnités d'assurances dues en cas de sinistre, les mêmes droits et privilèges que sur les produits assurés.
Article L524-4
Le greffier du tribunal de commerce délivre, à tout requérant, un état des warrants inscrits depuis moins de cinq ans au nom de l'emprunteur ou un certificat établissant qu'il n'existe pas d'inscription.
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Article L524-5
La radiation de l'inscription est opérée sur la justification, soit du remboursement de la créance garantie par le warrant, soit d'une mainlevée régulière.
L'emprunteur qui a remboursé son warrant fait constater le remboursement par le greffe du tribunal de commerce. Mention du remboursement ou de la mainlevée est faite sur le registre prévu à l'article L. 524-2.. Un certificat de radiation de l'inscription lui est délivré.
L'inscription est radiée d'office après cinq ans, si elle n'a pas été renouvelée avant l'expiration du délai. Si elle est inscrite à nouveau après la radiation d'office, elle ne vaut, à l'égard des tiers, que du jour de la nouvelle date.
Article L524-6
L'emprunteur conserve le droit de vendre les produits warrantés à l'amiable et avant le paiement de la créance, même sans le concours du prêteur. Toutefois, la tradition, à l'acquéreur, ne peut être opérée que lorsque le créancier a été désintéressé.
L'emprunteur peut, même avant l'échéance, rembourser la créance garantie par le warrant pétrolier. Si le porteur du warrant refuse les offres du débiteur, celui-ci peut, pour se libérer, consigner la somme offerte dans les conditions prévues aux articles 1426 à 1429 du code de procédure civile. Les offres sont faites au dernier ayant droit connu par les avis donnés au greffe du tribunal de commerce, en conformité de l'article L. 524-8. Au vu d'une quittance de consignation régulière et suffisante, le président du tribunal de commerce compétent à raison du lieu d'inscription du warrant rend une ordonnance aux termes de laquelle le gage est transporté sur la somme consignée.
En cas de remboursement anticipé d'un warrant pétrolier, l'emprunteur bénéficie des intérêts qui restaient à courir jusqu'à l'échéance du warrant, déduction faite d'un délai de dix jours.
Article L524-7
Les établissements publics de crédit peuvent recevoir les warrants comme effets de commerce, avec dispense d'une des signatures exigées par leurs statuts.
Article L524-8
Le warrant pétrolier est transmissible par voie d'endossement. L'endossement est daté et signé, il énonce les noms, professions, domiciles des parties.
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Tous ceux qui ont signé ou endossé un warrant sont tenus à la garantie solidaire envers le porteur.
L'escompteur ou le réescompteur d'un warrant sont tenus d'aviser, dans les huit jours, le greffe du tribunal de commerce, par pli recommandé, avec accusé de réception, ou verbalement contre récépissé de l'avis.
L'emprunteur peut, par une mention spéciale inscrite au warrant, dispenser l'escompteur ou les réescompteurs de donner cet avis, mais, dans ce cas, il n'y a pas lieu à application des dispositions du dernier alinéa de l'article L. 524-6.
Article L524-9
Le porteur du warrant pétrolier doit réclamer à l'emprunteur paiement de sa créance échue, et, à défaut de ce paiement, constater et réitérer sa réclamation au débiteur par lettre recommandée avec demande d'avis de réception.
S'il n'est pas payé dans les cinq jours de l'envoi de cette lettre, le porteur du warrant pétrolier est tenu, à peine de perdre ses droits contre les endosseurs, de dénoncer le défaut de paiement, quinze jours francs au plus tard après l'échéance, par avertissement, pour chacun des endosseurs, remis au greffe du tribunal de commerce, qui lui en donne récépissé. Le greffe du tribunal de commerce fait connaître cet avertissement, dans la huitaine qui suit, aux endosseurs, par lettre recommandée avec demande d'avis de réception.
Article L524-10
En cas de refus de paiement, le porteur du warrant pétrolier peut, quinze jours après la lettre recommandée adressée à l'emprunteur, comme il est dit ci-dessus, faire procéder par un officier public ou ministériel à la vente publique de la marchandise engagée. Il y est procédé en vertu d'une ordonnance rendue sur requête par le président du tribunal de commerce de la situation des marchandises warrantées, fixant les jour, lieu et heure de la vente. Elle est annoncée huit jours au moins à l'avance par affiches apposées dans les lieux indiqués par le président du tribunal de commerce. Le président du tribunal de commerce peut, dans tous les cas, en autoriser l'annonce par la voie des journaux. La publicité donnée est constatée par une mention insérée au procès-verbal de vente.
Article L524-11
L'officier public chargé de procéder prévient, par lettre recommandée, le débiteur et les endosseurs, huit jours à l'avance, des lieu, jour et heure de la vente.
L'emprunteur peut toutefois, par une mention spéciale inscrite au warrant pétrolier, accepter qu'il n'y ait pas obligatoirement vente publique, et que la vente puisse être faite à l'amiable. En pareil cas,
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la vente est toujours faite en vertu d'une ordonnance du président du tribunal de commerce de la situation des marchandises warrantées rendue sur requête.
Article L524-12
Les dispositions de l'article 53 de la loi n° 91-650 du 9 juillet 1991 portant réforme des procédures civiles d'exécution sont applicables aux ventes prévues par les dispositions du présent chapitre.
Article L524-13
Le porteur du warrant est payé directement de ses créances sur le prix de vente, par privilège et de préférence à tous créanciers, sous déduction des frais de vente, et sans autres formalités qu'une ordonnance du président du tribunal de commerce.
Article L524-14
Si le porteur du warrant pétrolier fait procéder à la vente, conformément aux articles L. 524-9 à L. 524-11, il ne peut plus exercer son recours contre les endosseurs et même contre l'emprunteur, qu'après avoir fait valoir ses droits sur le prix des produits warrantés. En cas d'insuffisance du prix pour le désintéresser, un délai d'un mois lui est imparti, à dater du jour où la vente de la marchandise est réalisée, pour exercer son recours contre les endosseurs.
Article L524-15
En cas de non-conformité, constatée entre les existants et les quantités ou qualités warrantés, les prêteurs peuvent mettre immédiatement, par lettre recommandée avec accusé de réception, le titulaire du warrant pétrolier en demeure soit de rétablir la garantie dans les quarante-huit heures suivant la réception de la lettre recommandée, soit de leur rembourser, dans le même délai, tout ou partie des sommes portées sur le warrant pétrolier. S'il ne leur est pas donné satisfaction, les prêteurs ont le droit d'exiger le remboursement total de la créance en la considérant comme échue.
En pareil cas, l'emprunteur perd le bénéfice des dispositions du dernier alinéa de l'article L. 524-6, concernant le remboursement des intérêts.
Article L524-16
En cas de baisse de la valeur des stocks warrantés, dépassant ou égalant 10 %, les prêteurs peuvent mettre, par lettre recommandée avec accusé de réception, les emprunteurs en demeure d'avoir, soit à
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augmenter le gage, soit à rembourser une partie proportionnelle des sommes prêtées. Dans ce dernier cas, les dispositions du dernier alinéa de l'article L. 524-6 sont applicables.
S'il n'est pas satisfait à cette demande dans un délai de huit jours francs, les prêteurs ont la faculté d'exiger le remboursement total de leur créance en la considérant comme échue.
Article L524-17
Le fait pour tout emprunteur d'avoir fait une fausse déclaration, ou d'avoir constitué un warrant pétrolier sur produits déjà warrantés, sans avis préalable donné au nouveau prêteur ou le fait pour tout emprunteur ou dépositaire d'avoir détourné, dissipé ou volontairement détérioré au préjudice de son créancier le gage de celui-ci, est puni selon les cas des peines prévues aux articles 313-1, 313-7 et 313-8 ou 314-1 et 314-10 du code pénal.
Article L524-18
Lorsque, pour l'exécution des dispositions du présent chapitre, il y a lieu à référé, ce référé est porté devant le président du tribunal de commerce de la situation des marchandises warrantées.
Article L524-19
Le montant des droits à percevoir par le greffier du tribunal de commerce à l'occasion des warrants pétroliers est celui fixé par le décret qui régit les warrants agricoles. Ce montant peut toutefois être révisé par un décret spécial aux warrants pétroliers.
Les avis prescrits par les dispositions du présent chapitre sont envoyés en la forme et avec la taxe des papiers d'affaires recommandés.
Article L524-20
Les dispositions du présent chapitre sont applicables sous réserve du respect des obligations imposées par la loi n° 92-1443 du 31 décembre 1992 portant réforme du régime pétrolier, en particulier en ce qui concerne la constitution et la répartition des stocks et sans préjudice de la mise en jeu éventuelle de la responsabilité des opérateurs en cas d'infraction à ces obligations.
Article L524-21
Le présent chapitre est applicable dans les départements du Haut-Rhin, du Bas-Rhin et de la
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Moselle, sous réserve des dispositions spéciales de la loi du 1er juin 1924 portant introduction des lois commerciales françaises dans ces trois départements.
Les greffes compétents pour l'établissement des warrants pétroliers seront ceux prévus à l'article 35 de ladite loi pour l'établissement des warrants hôteliers.
Chapitre V : Du nantissement de l'outillage et du matériel d'équipement.
Article L525-1
Le paiement du prix d'acquisition de l'outillage et du matériel d'équipement professionnel peut être garanti, soit vis-à-vis du vendeur, soit vis-à-vis du prêteur qui avance les fonds nécessaires au paiement du vendeur, par un nantissement restreint à l'outillage ou au matériel ainsi acquis.
Si l'acquéreur a la qualité de commerçant, ce nantissement est soumis, sous réserve des dispositions ci-après, aux règles édictées par les chapitres II et III du titre IV du livre Ier, sans qu'il soit nécessaire d'y comprendre les éléments essentiels du fonds.
Si l'acquéreur n'a pas la qualité de commerçant, le nantissement est soumis aux dispositions de l'article L. 525-16.
Article L525-2
Le nantissement est consenti par un acte authentique ou sous seing privé enregistré au droit fixe.
Lorsqu'il est consenti au vendeur, il est donné dans l'acte de vente.
Lorsqu'il est consenti au prêteur qui avance les fonds nécessaires au paiement du vendeur, le nantissement est donné dans l'acte de prêt.
Cet acte doit mentionner, à peine de nullité, que les fonds versés par le prêteur ont pour objet d'assurer le paiement du prix des biens acquis.
Les biens acquis doivent être énumérés dans le corps de l'acte et chacun d'eux doit être décrit d'une façon précise, afin de l'individualiser par rapport aux autres biens de même nature appartenant à l'entreprise. L'acte indique également le lieu où les biens ont leur attache fixe ou mentionne, au cas contraire, qu'ils sont susceptibles d'être déplacés.
Sont assimilés aux prêteurs de fonds les garants qui interviennent en qualité de caution, de donneur d'aval ou d'endosseur dans l'octroi des crédits d'équipements. Ces personnes sont subrogées de plein
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droit aux créanciers. Il en est de même des personnes qui endossent, escomptent, avalisent ou acceptent les effets créés en représentation desdits crédits.
Article L525-3
A peine de nullité, le nantissement doit être conclu au plus tard dans le délai de deux mois à compter du jour de la livraison du matériel d'équipement sur les lieux où il doit être installé.
A peine de nullité également, le nantissement doit être inscrit dans les conditions requises par les articles L. 142-3 et L. 142-4, et dans un délai de quinze jours à compter de la date de l'acte constitutif du nantissement.
Lorsque la livraison du matériel intervient après la date prévue dans le contrat ou si elle n'est pas faite au lieu primitivement fixé, les créances inscrites deviennent de plein droit exigibles si le débiteur n'a pas fait connaître, dans les quinze jours de cette livraison, au créancier nanti, la date ou le lieu auquel elle est intervenue.
Le nantissement ne peut être opposé aux tiers si, dans la quinzaine de l'avis à lui notifié ou dans la quinzaine du jour où il aura eu connaissance de la date ou du lieu de la livraison, le créancier nanti n'a pas requis du greffier du tribunal où a été prise l'inscription du nantissement, que mention soit faite de cette date ou de ce lieu en marge de ladite inscription.
Article L525-4
Les biens donnés en nantissement par application du présent chapitre peuvent, en outre, à la requête du bénéficiaire du nantissement, être revêtus sur une pièce essentielle et d'une manière apparente d'une plaque fixée à demeure indiquant le lieu, la date et le numéro d'inscription du privilège dont ils sont grevés.
Sous peine des sanctions prévues à l'article L. 525-19, le débiteur ne peut faire obstacle à cette apposition, et les marques ainsi apposées ne peuvent être détruites, retirées ou recouvertes avant l'extinction ou la radiation du privilège du créancier nanti.
Article L525-5
Toute subrogation conventionnelle dans le bénéfice du nantissement doit être mentionnée en marge de l'inscription dans la quinzaine de l'acte authentique ou sous seing privé qui la constate, sur remise au greffier d'une expédition ou d'un original dudit acte.
Les conflits qui peuvent se produire entre les titulaires d'inscriptions successives sont réglés conformément à l'article 1252 du code civil.
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Article L525-6
Le bénéfice du nantissement est transmis de plein droit conformément à l'article 1692 du code civil aux porteurs successifs des effets qu'il garantit, soit que ces effets aient été souscrits ou acceptés à l'ordre du vendeur ou du prêteur ayant fourni tout ou partie du prix, soit plus généralement qu'ils représentent la mobilisation d'une créance valablement gagée suivant les dispositions du présent chapitre.
Si plusieurs effets sont créés pour représenter la créance, le privilège attaché à celle-ci est exercé par le premier poursuivant pour le compte commun et pour le tout.
Article L525-7
Sous peine des sanctions prévues à l'article L. 525-19, le débiteur qui, avant paiement ou remboursement des sommes garanties conformément au présent chapitre, veut vendre à l'amiable tout ou partie des biens grevés, doit solliciter le consentement préalable du créancier nanti, et à défaut, l'autorisation du juge des référés du tribunal de commerce statuant en dernier ressort.
Lorsqu'il a été satisfait aux exigences de publicité requises par le présent chapitre et que les biens grevés ont été revêtus d'une plaque conformément à l'article L. 525-4, le créancier nanti ou ses subrogés disposent pour l'exercice du privilège résultant du nantissement, du droit de suite prévu à l'article L. 143-12.
Article L525-8
Le privilège du créancier nanti en application des dispositions du présent chapitre subsiste si le bien qui est grevé devient immeuble par destination.
L'article 2133 du code civil n'est pas applicable aux biens nantis.
Article L525-9
I. - Le privilège du créancier nanti en application des dispositions du présent chapitre s'exerce sur les biens grevés par préférence à tous autres privilèges, à l'exception :
1° Du privilège des frais de justice ;
2° Du privilège des frais faits pour la conservation de la chose ;
3° Du privilège accordé aux salariés par l'article L. 143-10 du code du travail.
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II. - Il s'exerce, notamment, à l'encontre de tout créancier hypothécaire et par préférence au privilège du Trésor, au privilège visé à l'article L. 243-4 du code de la sécurité sociale, au privilège du vendeur du fonds de commerce à l'exploitation duquel est affecté le bien grevé, ainsi qu'au privilège du créancier nanti sur l'ensemble dudit fonds.
III. - Toutefois, pour que son privilège soit opposable au créancier hypothécaire, au vendeur du fonds de commerce et au créancier nanti sur l'ensemble dudit fonds, préalablement inscrits, le bénéficiaire du nantissement conclu en application du présent chapitre doit signifier auxdits créanciers, par acte extrajudiciaire, une copie de l'acte constatant le nantissement. Cette signification doit, à peine de nullité, être faite dans les deux mois de la conclusion du nantissement.
Article L525-10
Sous réserve des dérogations prévues par le présent chapitre, le privilège du créancier nanti est régi par les dispositions du livre I, titre IV, chapitre III en ce qui concerne les formalités d'inscription, les droits des créanciers en cas de déplacement du fonds, les droits du bailleur de l'immeuble, la purge desdits privilèges et les formalités de mainlevée.
Article L525-11
L'inscription conserve le privilège pendant cinq années à compter de sa régularisation définitive.
Elle garantit, en même temps que le principal, deux années d'intérêts. Elle cesse d'avoir effet si elle n'a pas été renouvelée avant l'expiration du délai ci-dessus ; elle peut être renouvelée deux fois.
Article L525-12
L'état des inscriptions existantes, délivré en application de l'article 32 de la loi du 17 mars 1909 relative à la vente et au nantissement des fonds de commerce, doit comprendre les inscriptions prises en vertu des dispositions du présent chapitre. Il peut être également délivré au requérant, sur sa demande, un état attestant l'existence ou l'absence, sur les biens désignés, d'inscriptions prises soit en vertu des dispositions des chapitres Ier et II du titre IV du livre Ier, soit en vertu des dispositions du présent chapitre.
Article L525-13
La notification, conformément à l'article L. 143-10, de poursuites engagées en vue de parvenir à la réalisation forcée de certains éléments du fonds auquel appartiennent les biens grevés du privilège du vendeur ou du privilège de nantissement en vertu des dispositions du présent chapitre, rend
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exigibles les créances garanties par ces privilèges.
Article L525-14
En cas de non-paiement à l'échéance, le créancier bénéficiaire du privilège établi par le présent chapitre peut poursuivre la réalisation du bien qui en est grevé dans les conditions prévues à l'article L. 521-3. L'officier public chargé de la vente est désigné à sa requête, par le président du tribunal de commerce. Le créancier doit, préalablement à la vente, se conformer aux dispositions de l'article L. 143-10.
Le créancier nanti a la faculté d'exercer la surenchère du dixième, prévue à l'article L. 143-13.
Article L525-15
Les biens grevés en vertu du présent chapitre, dont la vente est poursuivie avec d'autres éléments du fonds, sont l'objet d'une mise à prix distincte ou d'un prix distinct si le cahier des charges oblige l'adjudicataire à les prendre à dire d'expert.
Dans tous les cas, les sommes provenant de la vente de ces biens sont, avant toute distribution, attribuées aux bénéficiaires des inscriptions, à concurrence du montant de leur créance en principal, frais et intérêts conservés par lesdites inscriptions.
La quittance délivrée par le créancier bénéficiaire du privilège n'est soumise qu'au droit fixe.
Article L525-16
Si l'acquéreur n'a pas la qualité de commerçant, le nantissement est soumis aux dispositions des articles L. 525-1 à L. 525-9, L. 525-11 et L. 525-12 et du présent article. L'inscription prévue à l'article L. 525-3 est alors prise au greffe du tribunal de commerce dans le ressort duquel est domicilié l'acquéreur du bien grevé, ou, s'il s'agit d'une personne immatriculée au répertoire des métiers, dans le ressort duquel est situé son fonds artisanal.
A défaut de paiement à l'échéance, le créancier bénéficiaire du privilège établi par le présent chapitre peut faire procéder à la vente publique du bien grevé conformément aux dispositions de l'article L. 521-3.
Les inscriptions sont rayées soit du consentement des parties intéressées, soit en vertu d'un jugement passé en force de chose jugée.
A défaut de jugement, la radiation totale ou partielle ne peut être opérée par le greffier que sur le dépôt d'un acte authentique de consentement donné par le créancier.
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Lorsque la radiation non consentie par le créancier est demandée par voie d'action principale, cette action est portée devant le tribunal de commerce du lieu où l'inscription a été prise.
La radiation est opérée au moyen d'une mention faite par le greffier en marge de l'inscription.
Il en est délivré certificat aux parties qui le demandent.
Article L525-17
Pour l'application des dispositions du présent chapitre, les greffiers sont assujettis aux diligences et responsabilités fixées par voie réglementaire pour la tenue du registre des inscriptions et la délivrance des états ou certificats requis.
Leurs émoluments sont établis comme il est prévu par les textes réglementaires en vigueur.
Article L525-18
Ne sont pas soumis à l'application des dispositions du présent chapitre :
1° Les véhicules automobiles visés par le décret n° 53-968 du 30 septembre 1953 ;
2° Les navires de mer, ainsi que les bateaux de navigation fluviale visés par les articles 78 et suivants du code du domaine public fluvial et de la navigation intérieure ;
3° Les aéronefs visés par les articles L. 110-1 et suivants du code de l'aviation civile.
Article L525-19
Est puni des peines prévues pour l'abus de confiance par les articles 314-1 et 314-10 du code pénal, le fait, pour tout acquéreur ou détenteur de biens nantis en application du présent chapitre, de les détruire ou tenter de les détruire, les détourner ou tenter de les détourner, ou enfin les altérer ou tenter de les altérer d'une manière quelconque en vue de faire échec aux droits du créancier.
Sont punies des mêmes peines toutes manoeuvres frauduleuses destinées à priver le créancier de son privilège sur les biens nantis ou à le diminuer.
Article L525-20
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Des décrets en Conseil d'Etat déterminent les conditions d'application des dispositions du présent chapitre.
Chapitre VI : De la protection de l'entrepreneur individuel et du conjoint.
Article L526-1
Par dérogation aux articles 2284 et 2285 du code civil, une personne physique immatriculée à un registre de publicité légale à caractère professionnel ou exerçant une activité professionnelle agricole ou indépendante peut déclarer insaisissables ses droits sur l'immeuble où est fixée sa résidence principale ainsi que sur tout bien foncier bâti ou non bâti qu'elle n'a pas affecté à son usage professionnel. Cette déclaration, publiée au bureau des hypothèques ou, dans les départements du Bas-Rhin, du Haut-Rhin et de la Moselle, au livre foncier, n'a d'effet qu'à l'égard des créanciers dont les droits naissent, postérieurement à la publication, à l'occasion de l'activité professionnelle du déclarant.
Lorsque le bien foncier n'est pas utilisé en totalité pour un usage professionnel, la partie non affectée à un usage professionnel ne peut faire l'objet de la déclaration que si elle est désignée dans un état descriptif de division. La domiciliation du déclarant dans son local d'habitation en application de l'article L. 123-10 ne fait pas obstacle à ce que ce local fasse l'objet de la déclaration, sans qu'un état descriptif de division soit nécessaire.
Article L526-2
La déclaration, reçue par notaire sous peine de nullité, contient la description détaillée des biens et l'indication de leur caractère propre, commun ou indivis. L'acte est publié au bureau des hypothèques ou, dans les départements du Bas-Rhin, du Haut-Rhin et de la Moselle, au livre foncier, de sa situation.
Lorsque la personne est immatriculée dans un registre de publicité légale à caractère professionnel, la déclaration doit y être mentionnée.
Lorsque la personne n'est pas tenue de s'immatriculer dans un registre de publicité légale, un extrait de la déclaration doit être publié dans un journal d'annonces légales du département dans lequel est exercée l'activité professionnelle pour que cette personne puisse se prévaloir du bénéfice du premier alinéa de l'article L. 526-1.
L'établissement de l'acte prévu au premier alinéa et l'accomplissement des formalités donnent lieu au versement aux notaires d'émoluments fixes dans le cadre d'un plafond déterminé par décret.
Article L526-3
En cas de cession des droits immobiliers désignés dans la déclaration initiale, le prix obtenu
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demeure insaisissable à l'égard des créanciers dont les droits sont nés postérieurement à la publication de cette déclaration à l'occasion de l'activité professionnelle du déclarant, sous la condition du remploi dans le délai d'un an des sommes à l'acquisition par le déclarant d'un immeuble où est fixée sa résidence principale.
Les droits sur la résidence principale nouvellement acquise restent insaisissables à la hauteur des sommes réemployées à l'égard des créanciers visés au premier alinéa lorsque l'acte d'acquisition contient une déclaration de remploi des fonds.
La déclaration de remploi des fonds est soumise aux conditions de validité et d'opposabilité prévues aux articles L. 526-1 et L. 526-2.
La déclaration peut, à tout moment, faire l'objet d'une renonciation soumise aux mêmes conditions de validité et d'opposabilité. La renonciation peut porter sur tout ou partie des biens ; elle peut être faite au bénéfice d'un ou plusieurs créanciers mentionnés à l'article L. 526-1 désignés par l'acte authentique de renonciation. Lorsque le bénéficiaire de cette renonciation cède sa créance, le cessionnaire peut se prévaloir de celle-ci.
Les effets de la déclaration subsistent après la dissolution du régime matrimonial lorsque le déclarant est attributaire du bien. Le décès du déclarant emporte révocation de la déclaration.
Article L526-4
Lors de sa demande d'immatriculation à un registre de publicité légale à caractère professionnel, la personne physique mariée sous un régime de communauté légale ou conventionnelle doit justifier que son conjoint a été informé des conséquences sur les biens communs des dettes contractées dans l'exercice de sa profession.
Un décret en Conseil d'Etat précise en tant que de besoin les modalités d'application du présent article.
Article L526-5
Les dispositions des articles L. 313-14 à L. 313-14-2 du code de la consommation sont applicables aux opérations de prêt consenties à toute personne physique immatriculée à un registre de publicité légale à caractère professionnel, à toute personne physique exerçant une activité professionnelle agricole ou indépendante ainsi qu'au gérant associé unique d'une société à responsabilité limitée, et garanties par une hypothèque rechargeable inscrite sur l'immeuble où l'intéressé a fixé sa résidence principale.
Chapitre VII : Du gage des stocks.
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Article L527-1
Tout crédit consenti par un établissement de crédit à une personne morale de droit privé ou à une personne physique dans l'exercice de son activité professionnelle peut être garanti par un gage sans dépossession des stocks détenus par cette personne.
Le gage des stocks est constitué par acte sous seing privé.
A peine de nullité, l'acte constitutif du gage doit comporter les mentions suivantes :
1° La dénomination : "acte de gage des stocks" ;
2° La désignation des parties ;
3° La mention que l'acte est soumis aux dispositions des articles L. 527-1 à L. 527-11 ;
4° Le nom de l'assureur qui garantit contre l'incendie et la destruction ;
5° La désignation de la créance garantie ;
6° Une description permettant d'identifier les biens présents ou futurs engagés, en nature, qualité, quantité et valeur ainsi que l'indication du lieu de leur conservation ;
7° La durée de l'engagement.
Les dispositions de l'article 2335 du code civil sont applicables.
Un gardien peut être désigné dans l'acte de gage.
Article L527-2
Est réputée non écrite toute clause prévoyant que le créancier deviendra propriétaire des stocks en cas de non-paiement de la dette exigible par le débiteur.
Article L527-3
Peuvent être donnés en gage, à l'exclusion des biens soumis à une clause de réserve de propriété, les stocks de matières premières et approvisionnements, les produits intermédiaires, résiduels et finis
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ainsi que les marchandises appartenant au débiteur et estimés en nature et en valeur à la date du dernier inventaire.
Article L527-4
Le gage des stocks ne produit effet que s'il est inscrit sur un registre public tenu au greffe du tribunal dans le ressort duquel le débiteur a son siège ou son domicile. L'inscription doit être prise, à peine de nullité du gage, dans le délai de quinze jours à compter de la formation de l'acte constitutif.
Le rang des créanciers gagistes entre eux est déterminé par la date de leur inscription. Les créanciers inscrits le même jour viennent en concurrence.
Article L527-5
Les stocks constituent, jusqu'au remboursement total des sommes avancées, la garantie de l'établissement de crédit.
Le privilège du créancier passe de plein droit des stocks aliénés à ceux qui leur sont substitués.
Le créancier peut, à tout moment et à ses frais, faire constater l'état des stocks engagés.
Article L527-6
Le débiteur est responsable de la conservation des stocks en quantité et en qualité dans les conditions prévues à l'article 1137 du code civil.
Il justifie que les stocks sont assurés contre les risques d'incendie et de destruction.
Article L527-7
Le débiteur tient à la disposition du créancier un état des stocks engagés ainsi que la comptabilité de toutes les opérations les concernant.
Il s'engage à ne pas diminuer de son fait la valeur des stocks.
Lorsque l'état des stocks fait apparaître une diminution de 20 % de leur valeur telle que mentionnée dans l'acte constitutif, le créancier peut mettre en demeure le débiteur, soit de rétablir la garantie, soit de rembourser une partie des sommes prêtées en proportion de la diminution constatée. S'il ne lui est pas donné satisfaction, le créancier peut exiger le remboursement total de la créance,
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considérée comme échue.
Article L527-8
Les parties peuvent convenir que la part des stocks engagés diminue à proportion du désintéressement du créancier.
Article L527-9
En cas de remboursement anticipé de la créance, le débiteur n'est pas tenu des intérêts restant à courir jusqu'à son échéance.
Si le créancier refuse les offres du débiteur, celui-ci peut, pour se libérer, consigner la somme offerte.
Article L527-10
En cas de non-paiement de la créance exigible, le créancier peut poursuivre la réalisation de son gage dans les conditions prévues aux articles 2346 et 2347 du code civil.
Article L527-11
Les conditions d'application des dispositions du présent chapitre sont fixées par décret en Conseil d'Etat.
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Partie législative
LIVRE VI : Des difficultés des entreprises.
Article L610-1
Un décret en Conseil d'Etat détermine, dans chaque département, le tribunal ou les tribunaux appelés à connaître des procédures prévues par le présent livre, ainsi que le ressort dans lequel ces tribunaux exercent les attributions qui leur sont dévolues.
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Partie législative
LIVRE VI : Des difficultés des entreprises.
TITRE Ier : De la prévention des difficultés des entreprises
Chapitre Ier : De la prévention des difficultés des entreprises, du mandat ad hoc et de la procédure de conciliation
Article L611-1
Toute personne immatriculée au registre du commerce et des sociétés ou au répertoire des métiers ainsi que toute personne morale de droit privé peut adhérer à un groupement de prévention agréé par arrêté du représentant de l'Etat dans la région.
Ce groupement a pour mission de fournir à ses adhérents, de façon confidentielle, une analyse des informations économiques, comptables et financières que ceux-ci s'engagent à lui transmettre régulièrement.
Lorsque le groupement relève des indices de difficultés, il en informe le chef d'entreprise et peut lui proposer l'intervention d'un expert.
A la diligence du représentant de l'Etat, les administrations compétentes prêtent leur concours aux groupements de prévention agréés. Les services de la Banque de France peuvent également, suivant des modalités prévues par convention, être appelés à formuler des avis sur la situation financière des entreprises adhérentes. Les groupements de prévention agréés peuvent aussi bénéficier d'aides des collectivités territoriales.
Les groupements de prévention agréés sont habilités à conclure, notamment avec les établissements de crédit et les entreprises d'assurance, des conventions au profit de leurs adhérents.
Article L611-2
I. - Lorsqu'il résulte de tout acte, document ou procédure qu'une société commerciale, un groupement d'intérêt économique, ou une entreprise individuelle, commerciale ou artisanale connaît des difficultés de nature à compromettre la continuité de l'exploitation, ses dirigeants peuvent être convoqués par le président du tribunal de commerce pour que soient envisagées les mesures propres à redresser la situation.
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A l'issue de cet entretien ou si les dirigeants ne se sont pas rendus à sa convocation, le président du tribunal peut, nonobstant toute disposition législative ou réglementaire contraire, obtenir communication, par les commissaires aux comptes, les membres et représentants du personnel, les administrations publiques, les organismes de sécurité et de prévoyance sociales ainsi que les services chargés de la centralisation des risques bancaires et des incidents de paiement, des renseignements de nature à lui donner une exacte information sur la situation économique et financière du débiteur.
II. - Lorsque les dirigeants d'une société commerciale ne procèdent pas au dépôt des comptes annuels dans les délais prévus par les textes applicables, le président du tribunal peut leur adresser une injonction de le faire à bref délai sous astreinte.
Si cette injonction n'est pas suivie d'effet dans un délai fixé par décret en Conseil d'Etat, le président du tribunal peut également faire application à leur égard des dispositions du deuxième alinéa du I.
Article L611-3
Le président du tribunal peut, à la demande d'un débiteur, désigner un mandataire ad hoc dont il détermine la mission. Le débiteur peut proposer le nom d'un mandataire ad hoc.
Le tribunal compétent est le tribunal de commerce si le débiteur exerce une activité commerciale ou artisanale et le tribunal de grande instance dans les autres cas.
Article L611-4
Il est institué, devant le tribunal de commerce, une procédure de conciliation dont peuvent bénéficier les personnes exerçant une activité commerciale ou artisanale qui éprouvent une difficulté juridique, économique ou financière, avérée ou prévisible, et ne se trouvent pas en cessation des paiements depuis plus de quarante-cinq jours.
Article L611-5
La procédure de conciliation est applicable, dans les mêmes conditions, aux personnes morales de droit privé et aux personnes physiques exerçant une activité professionnelle indépendante, y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé. Pour l'application du présent article, le tribunal de grande instance est compétent et son président exerce les mêmes pouvoirs que ceux attribués au président du tribunal de commerce.
La procédure de conciliation n'est pas applicable aux agriculteurs qui bénéficient de la procédure prévue aux articles L. 351-1 à L. 351-7 du code rural.
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Article L611-6
Le président du tribunal est saisi par une requête du débiteur exposant sa situation économique, sociale et financière, ses besoins de financement ainsi que, le cas échéant, les moyens d'y faire face. Le débiteur peut proposer le nom d'un conciliateur.
La procédure de conciliation est ouverte par le président du tribunal, qui désigne un conciliateur pour une période n'excédant pas quatre mois mais qu'il peut, par une décision motivée, proroger d'un mois au plus à la demande de ce dernier. Si une demande d'homologation a été formée en application du II de l'article L. 611-8 avant l'expiration de cette période, la mission du conciliateur et la procédure sont prolongées jusqu'à la décision du tribunal.A défaut, elles prennent fin de plein droit et une nouvelle conciliation ne peut être ouverte dans les trois mois qui suivent.
La décision ouvrant la procédure de conciliation est communiquée au ministère public et, si le débiteur est soumis au contrôle légal de ses comptes, aux commissaires aux comptes. Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, la décision est également communiquée à l'ordre professionnel ou à l'autorité compétente dont, le cas échéant, il relève. Elle est susceptible d'appel de la part du ministère public.
Le débiteur peut récuser le conciliateur dans des conditions et délais fixés par décret en Conseil d'Etat.
Après ouverture de la procédure de conciliation, le président du tribunal dispose des pouvoirs qui lui sont attribués par le second alinéa du I de l'article L. 611-2. En outre, il peut charger un expert de son choix d'établir un rapport sur la situation économique, sociale et financière du débiteur et, nonobstant toute disposition législative et réglementaire contraire, obtenir des établissements bancaires ou financiers tout renseignement de nature à donner une exacte information sur la situation économique et financière de celui-ci.
Article L611-7
Le conciliateur a pour mission de favoriser la conclusion entre le débiteur et ses principaux créanciers ainsi que, le cas échéant, ses cocontractants habituels, d'un accord amiable destiné à mettre fin aux difficultés de l'entreprise. Il peut également présenter toute proposition se rapportant à la sauvegarde de l'entreprise, à la poursuite de l'activité économique et au maintien de l'emploi.
Le conciliateur peut, dans ce but, obtenir du débiteur tout renseignement utile. Le président du tribunal communique au conciliateur les renseignements dont il dispose et, le cas échéant, les résultats de l'expertise mentionnée au cinquième alinéa de l'article L. 611-6.
Les administrations financières, les organismes de sécurité sociale, les institutions gérant le régime d'assurance chômage prévu par les articles L. 351-3 et suivants du code du travail et les institutions régies par le livre IX du code de la sécurité sociale peuvent consentir des remises de dettes dans les conditions fixées à l'article L. 626-6 du présent code. Des cessions de rang de privilège ou d'hypothèque ou l'abandon de ces sûretés peuvent être consenties dans les mêmes conditions.
Le conciliateur rend compte au président du tribunal de l'état d'avancement de sa mission et formule toutes observations utiles sur les diligences du débiteur.
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Si, au cours de la procédure, le débiteur est mis en demeure ou poursuivi par un créancier, le juge qui a ouvert cette procédure peut, à la demande du débiteur et après avoir été éclairé par le conciliateur, faire application des articles 1244-1 à 1244-3 du code civil.
En cas d'impossibilité de parvenir à un accord, le conciliateur présente sans délai un rapport au président du tribunal. Celui-ci met fin à sa mission et à la procédure de conciliation. Sa décision est notifiée au débiteur.
Article L611-8
I. - Le président du tribunal, sur la requête conjointe des parties, constate leur accord et donne à celui-ci force exécutoire. Il statue au vu d'une déclaration certifiée du débiteur attestant qu'il ne se trouvait pas en cessation des paiements lors de la conclusion de l'accord, ou que ce dernier y met fin. La décision constatant l'accord n'est pas soumise à publication et n'est pas susceptible de recours. Elle met fin à la procédure de conciliation.
II. - Toutefois, à la demande du débiteur, le tribunal homologue l'accord obtenu si les conditions suivantes sont réunies :
1° Le débiteur n'est pas en cessation des paiements ou l'accord conclu y met fin ;
2° Les termes de l'accord sont de nature à assurer la pérennité de l'activité de l'entreprise ;
3° L'accord ne porte pas atteinte aux intérêts des créanciers non signataires.
Article L611-9
Le tribunal statue sur l'homologation après avoir entendu ou dûment appelé en chambre du conseil le débiteur, les créanciers parties à l'accord, les représentants du comité d'entreprise ou, à défaut, des délégués du personnel, le conciliateur et le ministère public. L'ordre professionnel ou l'autorité compétente dont relève, le cas échéant, le débiteur qui exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, est entendu ou appelé dans les mêmes conditions.
Le tribunal peut entendre toute autre personne dont l'audition lui paraît utile.
Article L611-10
L'homologation de l'accord met fin à la procédure de conciliation.
Lorsque le débiteur est soumis au contrôle légal de ses comptes, l'accord homologué est transmis à son commissaire aux comptes. Le jugement d'homologation est déposé au greffe où tout intéressé peut en prendre connaissance et fait l'objet d'une mesure de publicité. Il est susceptible d'appel de la part du ministère public et, en cas de contestation relative au privilège mentionné à l'article L. 611-11, de la part des parties à l'accord. Il peut également être frappé de tierce opposition. Le
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jugement rejetant l'homologation ne fait pas l'objet d'une publication. Il est susceptible d'appel.
Article L611-10-1
Pendant la durée de son exécution, l'accord constaté ou homologué interrompt ou interdit toute action en justice et arrête ou interdit toute poursuite individuelle tant sur les meubles que les immeubles du débiteur dans le but d'obtenir le paiement des créances qui en font l'objet. Il interrompt, pour la même durée, les délais impartis aux créanciers parties à l'accord à peine de déchéance ou de résolution des droits afférents aux créances mentionnées par l'accord.
Article L611-10-2
Les personnes coobligées ou ayant consenti une sûreté personnelle ou ayant affecté ou cédé un bien en garantie peuvent se prévaloir des dispositions de l'accord constaté ou homologué.
L'accord homologué entraîne la levée de plein droit de toute interdiction d'émettre des chèques conformément à l'article L. 131-73 du code monétaire et financier, mise en œuvre à l'occasion du rejet d'un chèque émis avant l'ouverture de la procédure de conciliation.
Article L611-10-3
Saisi par l'une des parties à l'accord constaté, le président du tribunal, s'il constate l'inexécution des engagements résultant de cet accord, prononce la résolution de celui-ci.
Dans les mêmes conditions, le tribunal prononce la résolution de l'accord homologué.
Le président du tribunal ou le tribunal qui décide la résolution de l'accord peut aussi prononcer la déchéance de tout délai de paiement accordé en application du cinquième alinéa de l'article L. 611-7.
Article L611-11
En cas d'ouverture d'une procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire, les personnes qui avaient consenti, dans l'accord homologué mentionné au II de l'article L. 611-8, un nouvel apport en trésorerie au débiteur en vue d'assurer la poursuite d'activité de l'entreprise et sa pérennité, sont payées, pour le montant de cet apport, par privilège avant toutes les autres créances, selon le rang prévu au II de l'article L. 622-17 et au II de l'article L. 641-13. Les personnes qui fournissent, dans l'accord homologué, un nouveau bien ou service en vue d'assurer la poursuite d'activité de l'entreprise et sa pérennité bénéficient du même privilège pour le prix de ce bien ou de ce service.
Cette disposition ne s'applique pas aux apports consentis par les actionnaires et associés du débiteur dans le cadre d'une augmentation de capital.
Les créanciers signataires de l'accord ne peuvent bénéficier directement ou indirectement de cette disposition au titre de leurs concours antérieurs à l'ouverture de la conciliation.
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Article L611-12
L'ouverture d'une procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire met fin de plein droit à l'accord constaté ou homologué en application de l'article L. 611-8. En ce cas, les créanciers recouvrent l'intégralité de leurs créances et sûretés, déduction faite des sommes perçues, sans préjudice des dispositions prévues à l'article L. 611-11.
Article L611-13
Les missions de mandataire ad hoc ou de conciliateur ne peuvent être exercées par une personne ayant, au cours des vingt-quatre mois précédents, perçu, à quelque titre que ce soit, directement ou indirectement, une rémunération ou un paiement de la part du débiteur intéressé, de tout créancier du débiteur ou d'une personne qui en détient le contrôle ou est contrôlée par lui au sens de l'article L. 233-16, sauf s'il s'agit d'une rémunération perçue au titre d'un mandat ad hoc ou d'une mission de règlement amiable ou de conciliation réalisée pour le même débiteur ou le même créancier. La personne ainsi désignée doit attester sur l'honneur, lors de l'acceptation de son mandat, qu'elle se conforme à ces interdictions.
Les missions de mandataire ad hoc ou de conciliateur ne peuvent être confiées à un juge consulaire en fonction ou ayant quitté ses fonctions depuis moins de cinq ans.
Article L611-14
Après avoir recueilli l'accord du débiteur, le président du tribunal fixe les conditions de rémunération du mandataire ad hoc, du conciliateur et, le cas échéant, de l'expert, lors de la désignation de l'intéressé, en fonction des diligences nécessaires à l'accomplissement de sa mission. Sa rémunération est arrêtée par ordonnance du président du tribunal à l'issue de la mission.
Les recours contre la décision arrêtant la rémunération sont portés devant le premier président de la cour d'appel dans un délai fixé par décret en Conseil d'Etat.
Article L611-15
Toute personne qui est appelée à la procédure de conciliation ou à un mandat ad hoc ou qui, par ses fonctions, en a connaissance est tenue à la confidentialité.
Chapitre II : Des dispositions applicables aux personnes morales de droit privé non commerçantes ayant une activité économique
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Article L612-1
Les personnes morales de droit privé non commerçantes ayant une activité économique dont le nombre de salariés, le montant hors taxes du chiffre d'affaires ou les ressources et le total du bilan dépassent, pour deux de ces critères, des seuils fixés par décret en Conseil d'Etat, doivent établir chaque année un bilan, un compte de résultat et une annexe. Les modalités d'établissement de ces documents sont précisées par décret.
Ces personnes morales sont tenues de nommer au moins un commissaire aux comptes et un suppléant.
Pour les coopératives agricoles et les sociétés d'intérêt collectif agricole qui n'ont pas la forme commerciale et dont les titres financiers ne sont pas admis aux négociations sur un marché réglementé, cette obligation peut être satisfaite, dans les conditions définies à l'article L. 527-1-1 du code rural, par le recours au service d'une fédération agréée pour la révision mentionnée à l'article L. 527-1 du même code.
Les peines prévues par l'article L. 242-8 sont applicables aux dirigeants des personnes morales mentionnées au premier alinéa du présent article qui n'auront pas, chaque année, établi un bilan, un compte de résultat et une annexe.
Même si les seuils visés au premier alinéa ne sont pas atteints, les personnes morales de droit privé non commerçantes ayant une activité économique peuvent nommer un commissaire aux comptes et un suppléant dans les mêmes conditions que celles prévues au deuxième alinéa. Dans ce cas, le commissaire aux comptes et son suppléant sont soumis aux mêmes obligations, encourent les mêmes responsabilités civile et pénale et exercent les mêmes pouvoirs que s'ils avaient été désignés en application du premier alinéa.
Article L612-2
Les personnes morales de droit privé non commerçantes ayant une activité économique dont, soit le nombre de salariés, soit le montant hors taxes du chiffre d'affaires ou les ressources dépassent un seuil défini par décret en Conseil d'Etat, sont tenues d'établir une situation de l'actif réalisable et disponible, valeurs d'exploitation exclues, et du passif exigible, un compte de résultat prévisionnel, un tableau de financement et un plan de financement.
La périodicité, les délais et les modalités d'établissement de ces documents sont précisés par décret.
Ces documents sont analysés dans des rapports écrits sur l'évolution de la personne morale, établis par l'organe chargé de l'administration. Ces documents et rapports sont communiqués simultanément au commissaire aux comptes, au comité d'entreprise ou, à défaut, aux délégués du personnel et à l'organe chargé de la surveillance, lorsqu'il en existe.
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En cas de non-observation des dispositions prévues aux alinéas précédents ou si les informations données dans les rapports visés à l'alinéa précédent appellent des observations de sa part, le commissaire aux comptes le signale dans un rapport écrit qu'il communique à l'organe chargé de l'administration ou de la direction. Ce rapport est communiqué au comité d'entreprise ou, à défaut, aux délégués du personnel. Il est donné connaissance de ce rapport à la prochaine réunion de l'organe délibérant.
Article L612-3
Lorsque le commissaire aux comptes d'une personne morale visée aux articles L. 612-1 et L. 612-4 relève, à l'occasion de l'exercice de sa mission, des faits de nature à compromettre la continuité de l'exploitation de cette personne morale, il en informe les dirigeants de la personne morale dans des conditions fixées par décret en Conseil d'Etat.
A défaut de réponse dans un délai fixé par décret en Conseil d'Etat, ou si celle-ci ne permet pas d'être assuré de la continuité de l'exploitation, le commissaire aux comptes invite, par un écrit dont la copie est transmise au président du tribunal de grande instance, les dirigeants à faire délibérer l'organe collégial de la personne morale sur les faits relevés. Le commissaire aux comptes est convoqué à cette séance. La délibération de l'organe collégial est communiquée au comité d'entreprise ou, à défaut, aux délégués du personnel et au président du tribunal de grande instance.
En cas d'inobservation de ces dispositions, ou si le commissaire aux comptes constate qu'en dépit des décisions prises la continuité de l'exploitation demeure compromise, une assemblée générale est convoquée dans des conditions et délais fixés par décret en Conseil d'Etat. Le commissaire aux comptes établit un rapport spécial qui est présenté à cette assemblée. Ce rapport est communiqué au comité d'entreprise ou, à défaut, aux délégués du personnel.
Si, à l'issue de la réunion de l'assemblée générale, le commissaire aux comptes constate que les décisions prises ne permettent pas d'assurer la continuité de l'exploitation, il informe de ses démarches le président du tribunal et lui en communique les résultats.
Les dispositions du présent article ne sont pas applicables lorsqu'une procédure de conciliation ou de sauvegarde a été engagée par le débiteur en application des articles L. 611-6 et L. 620-1.
Article L612-4
Toute association ayant reçu annuellement des autorités administratives, au sens de l'article 1er de la loi du 12 avril 2000, ou des établissements publics à caractère industriel et commercial une ou plusieurs subventions dont le montant global dépasse un seuil fixé par décret, doit établir des comptes annuels comprenant un bilan, un compte de résultat et une annexe dont les modalités d'établissement sont fixées par décret. Ces associations doivent assurer, dans des conditions déterminées par décret en Conseil d'Etat, la publicité de leurs comptes annuels et du rapport du commissaire aux comptes.
Ces mêmes associations sont tenues de nommer au moins un commissaire aux comptes et un
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suppléant.
Article L612-5
Le représentant légal ou, s'il en existe un, le commissaire aux comptes d'une personne morale de droit privé non commerçante ayant une activité économique ou d'une association visée à l'article L. 612-4 présente à l'organe délibérant ou, en l'absence d'organe délibérant, joint aux documents communiqués aux adhérents un rapport sur les conventions passées directement ou par personne interposée entre la personne morale et l'un de ses administrateurs ou l'une des personnes assurant un rôle de mandataire social.
Il est de même des conventions passées entre cette personne morale et une autre personne morale dont un associé indéfiniment responsable, un gérant, un administrateur, le directeur général, un directeur général délégué, un membre du directoire ou du conseil de surveillance, un actionnaire disposant d'une fraction des droits de vote supérieure à 10 % est simultanément administrateur ou assure un rôle de mandataire social de ladite personne morale.
L'organe délibérant statue sur ce rapport.
Un décret en Conseil d'Etat précise les conditions dans lesquelles le rapport est établi.
Une convention non approuvée produit néanmoins ses effets. Les conséquences préjudiciables à la personne morale résultant d'une telle convention peuvent être mises à la charge, individuellement ou solidairement selon le cas, de l'administrateur ou de la personne assurant le rôle de mandataire social.
Les dispositions du présent article ne sont pas applicables aux conventions courantes conclues à des conditions normales qui, en raison de leur objet ou de leurs implications financières, ne sont significatives pour aucune des parties.
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Partie législative
LIVRE VI : Des difficultés des entreprises.
TITRE II : De la sauvegarde
Article L620-1
Il est institué une procédure de sauvegarde ouverte sur demande d'un débiteur mentionné à l'article L. 620-2 qui, sans être en cessation des paiements, justifie de difficultés qu'il n'est pas en mesure de surmonter. Cette procédure est destinée à faciliter la réorganisation de l'entreprise afin de permettre la poursuite de l'activité économique, le maintien de l'emploi et l'apurement du passif.
La procédure de sauvegarde donne lieu à un plan arrêté par jugement à l'issue d'une période d'observation et, le cas échéant, à la constitution de deux comités de créanciers, conformément aux dispositions des articles L. 626-29 et L. 626-30.
Article L620-2
La procédure de sauvegarde est applicable à toute personne exerçant une activité commerciale ou artisanale, à tout agriculteur, à toute autre personne physique exerçant une activité professionnelle indépendante, y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, ainsi qu'à toute personne morale de droit privé.
Il ne peut être ouvert de nouvelle procédure de sauvegarde à l'égard d'une personne déjà soumise à une telle procédure, ou à une procédure de redressement judiciaire ou de liquidation judiciaire, tant qu'il n'a pas été mis fin aux opérations du plan qui en résulte ou que la procédure de liquidation n'a pas été clôturée.
Chapitre Ier : De l'ouverture de la procédure.
Article L621-1
Le tribunal statue sur l'ouverture de la procédure, après avoir entendu ou dûment appelé en chambre du conseil le débiteur et les représentants du comité d'entreprise ou, à défaut, des délégués du personnel. Il peut également entendre toute personne dont l'audition lui paraît utile.
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En outre, lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, le tribunal statue après avoir entendu ou dûment appelé, dans les mêmes conditions, l'ordre professionnel ou l'autorité compétente dont, le cas échéant, il relève.
Le tribunal peut, avant de statuer, commettre un juge pour recueillir tous renseignements sur la situation financière, économique et sociale de l'entreprise. Ce juge peut faire application des dispositions prévues à l'article L. 623-2. Il peut se faire assister de tout expert de son choix.
L'ouverture d'une procédure de sauvegarde à l'égard d'un débiteur qui bénéficie ou a bénéficié d'un mandat ad hoc ou d'une procédure de conciliation dans les dix-huit mois qui précèdent doit être examinée en présence du ministère public.
Dans ce cas, le tribunal peut, d'office ou à la demande du ministère public, obtenir communication des pièces et actes relatifs au mandat ad hoc ou à la conciliation, nonobstant les dispositions de l'article L. 611-15.
Article L621-2
Le tribunal compétent est le tribunal de commerce si le débiteur exerce une activité commerciale ou artisanale. Le tribunal de grande instance est compétent dans les autres cas.
A la demande de l'administrateur, du mandataire judiciaire, du ministère public ou d'office, la procédure ouverte peut être étendue à une ou plusieurs autres personnes en cas de confusion de leur patrimoine avec celui du débiteur ou de fictivité de la personne morale.A cette fin, le tribunal ayant ouvert la procédure initiale reste compétent.
Article L621-3
Le jugement ouvre une période d'observation d'une durée maximale de six mois qui peut être renouvelée une fois par décision motivée à la demande de l'administrateur, du débiteur ou du ministère public. Elle peut en outre être exceptionnellement prolongée à la demande du procureur de la République par décision motivée du tribunal pour une durée fixée par décret en Conseil d'Etat.
Lorsqu'il s'agit d'une exploitation agricole, le tribunal peut proroger la durée de la période d'observation en fonction de l'année culturale en cours et des usages spécifiques aux productions de l'exploitation.
Article L621-4
Dans le jugement d'ouverture, le tribunal désigne le juge-commissaire dont les fonctions sont définies à l'article L. 621-9. Il peut, en cas de nécessité, en désigner plusieurs.
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Il invite le comité d'entreprise ou, à défaut, les délégués du personnel à désigner un représentant parmi les salariés de l'entreprise. En l'absence de comité d'entreprise et de délégués du personnel, les salariés élisent leur représentant, qui exerce les fonctions dévolues à ces institutions par les dispositions du présent titre. Les modalités de désignation ou d'élection du représentant des salariés sont précisées par décret en Conseil d'Etat. Lorsque aucun représentant des salariés ne peut être désigné ou élu, un procès-verbal de carence est établi par le débiteur.
Dans le même jugement, sans préjudice de la possibilité de nommer un ou plusieurs experts en vue d'une mission qu'il détermine, le tribunal désigne deux mandataires de justice qui sont le mandataire judiciaire et l'administrateur judiciaire, dont les fonctions sont respectivement définies à l'article L. 622-20 et à l'article L. 622-1. Il peut, à la demande du ministère public, désigner plusieurs mandataires judiciaires ou plusieurs administrateurs judiciaires.
Toutefois, le tribunal n'est pas tenu de désigner un administrateur judiciaire lorsque la procédure est ouverte au bénéfice d'une personne dont le nombre de salariés et le chiffre d'affaires hors taxes sont inférieurs à des seuils fixés par décret en Conseil d'Etat. Dans ce cas, les dispositions du chapitre VII du présent titre sont applicables. Jusqu'au jugement arrêtant le plan, le tribunal peut, à la demande du débiteur, du mandataire judiciaire ou du ministère public, décider de nommer un administrateur judiciaire.
Le débiteur peut proposer un administrateur à la désignation du tribunal. Il en est de même pour le ministère public, qui peut également soumettre le nom d'un mandataire judiciaire. Le rejet de la proposition du ministère public doit être spécialement motivé. Lorsque la procédure est ouverte à l'égard d'un débiteur qui bénéficie ou a bénéficié d'un mandat ad hoc ou d'une procédure de conciliation dans les dix-huit mois qui précèdent, le ministère public peut en outre s'opposer à ce que le mandataire ad hoc ou le conciliateur soit désigné en qualité d'administrateur ou de mandataire judiciaire.
Si le débiteur en fait la demande, le tribunal désigne, en considération de leurs attributions respectives telles qu'elles résultent des dispositions qui leur sont applicables, un commissaire-priseur judiciaire, un huissier de justice, un notaire ou un courtier en marchandises assermenté aux fins de réaliser l'inventaire prévu à l'article L. 622-6. Dans le cas contraire, l'article L. 622-6-1 est applicable.
Article L621-5
Aucun parent ou allié, jusqu'au quatrième degré inclusivement, du débiteur personne physique ou des dirigeants, s'il s'agit d'une personne morale, ne peut être désigné à l'une des fonctions prévues à l'article L. 621-4 sauf dans les cas où cette disposition empêche la désignation d'un représentant des salariés.
Article L621-6
Le représentant des salariés ainsi que les salariés participant à sa désignation ne doivent avoir encouru aucune des condamnations prévues par l'article L. 6 du code électoral. Le représentant des salariés doit être âgé de dix-huit ans accomplis.
Les contestations relatives à la désignation du représentant des salariés sont de la compétence du
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tribunal d'instance qui statue en dernier ressort.
Article L621-7
Le tribunal peut, soit d'office, soit sur proposition du juge-commissaire ou à la demande du ministère public, procéder au remplacement de l'administrateur, de l'expert ou du mandataire judiciaire ou encore adjoindre un ou plusieurs administrateurs ou mandataires judiciaires à ceux déjà nommés. L'administrateur, le mandataire judiciaire ou un créancier nommé contrôleur peut demander au juge-commissaire de saisir à cette fin le tribunal. Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, l'ordre professionnel ou l'autorité compétente dont, le cas échéant, il relève peut saisir le ministère public à cette même fin. Le débiteur peut demander au juge-commissaire de saisir le tribunal aux fins de remplacer l'administrateur ou l'expert. Dans les mêmes conditions, tout créancier peut demander le remplacement du mandataire judiciaire. Par dérogation aux alinéas qui précèdent, lorsque l'administrateur ou le mandataire judiciaire demande son remplacement, le président du tribunal, saisi à cette fin par le juge-commissaire, est compétent pour y procéder. Il statue par ordonnance sur requête. Le comité d'entreprise ou, à défaut, les délégués du personnel ou, à défaut, les salariés de l'entreprise peuvent seuls procéder au remplacement du représentant des salariés.
Article L621-8
L'administrateur et le mandataire judiciaire tiennent informés le juge-commissaire et le ministère public du déroulement de la procédure. Ceux-ci peuvent à toute époque requérir communication de tous actes ou documents relatifs à la procédure.
Le ministère public communique au juge-commissaire sur la demande de celui-ci ou d'office, nonobstant toute disposition législative contraire, tous les renseignements qu'il détient et qui peuvent être utiles à la procédure.
Article L621-9
Le juge-commissaire est chargé de veiller au déroulement rapide de la procédure et à la protection des intérêts en présence.
Lorsque la désignation d'un technicien est nécessaire, seul le juge-commissaire peut y procéder en vue d'une mission qu'il détermine, sans préjudice de la faculté pour le tribunal prévue à l'article L. 621-4 de désigner un ou plusieurs experts. Les conditions de la rémunération de ce technicien sont fixées par un décret en Conseil d'Etat.
Le président du tribunal est compétent pour remplacer le juge-commissaire empêché ou ayant cessé ses fonctions.L'ordonnance par laquelle il est pourvu au remplacement est une mesure d'administration judiciaire.
Article L621-10
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Le juge-commissaire désigne un à cinq contrôleurs parmi les créanciers qui lui en font la demande. Lorsqu'il désigne plusieurs contrôleurs, il veille à ce qu'au moins l'un d'entre eux soit choisi parmi les créanciers titulaires de sûretés et qu'un autre soit choisi parmi les créanciers chirographaires.
Aucun parent ou allié jusqu'au quatrième degré inclusivement du débiteur personne physique ou des dirigeants de la personne morale, ni aucune personne détenant directement ou indirectement tout ou partie du capital de la personne morale débitrice ou dont le capital est détenu en tout ou partie par cette même personne, ne peut être nommé contrôleur ou représentant d'une personne morale désignée comme contrôleur.
Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, l'ordre professionnel ou l'autorité compétente dont, le cas échéant, il relève est d'office contrôleur. Dans ce cas, le juge-commissaire ne peut désigner plus de quatre contrôleurs.
La responsabilité du contrôleur n'est engagée qu'en cas de faute lourde. Il peut se faire représenter par l'un de ses préposés ou par ministère d'avocat. Tout créancier nommé contrôleur peut être révoqué par le tribunal à la demande du ministère public.
Article L621-11
Les contrôleurs assistent le mandataire judiciaire dans ses fonctions et le juge-commissaire dans sa mission de surveillance de l'administration de l'entreprise. Ils peuvent prendre connaissance de tous les documents transmis à l'administrateur et au mandataire judiciaire. Ils sont tenus à la confidentialité. Les fonctions de contrôleur sont gratuites.
Article L621-12
S'il apparaît, après l'ouverture de la procédure, que le débiteur était déjà en cessation des paiements au moment du prononcé du jugement, le tribunal le constate et fixe la date de la cessation des paiements dans les conditions prévues à l'article L. 631-8. Il convertit la procédure de sauvegarde en une procédure de redressement judiciaire. Si nécessaire, il peut modifier la durée de la période d'observation restant à courir. Aux fins de réaliser la prisée des actifs du débiteur au vu de l'inventaire établi pendant la procédure de sauvegarde, il désigne, en considération de leurs attributions respectives telles qu'elles résultent des dispositions qui leur sont applicables, un commissaire-priseur judiciaire, un huissier de justice, un notaire ou un courtier en marchandises assermenté.
Le tribunal est saisi par l'administrateur, le mandataire judiciaire ou le ministère public. Il peut également se saisir d'office. Il se prononce après avoir entendu ou dûment appelé le débiteur.
Chapitre II : De l'entreprise au cours de la période d'observation.
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Article L622-1
I.-L'administration de l'entreprise est assurée par son dirigeant.
II.-Lorsque le tribunal, en application des dispositions de l'article L. 621-4, désigne un ou plusieurs administrateurs, il les charge ensemble ou séparément de surveiller le débiteur dans sa gestion ou de l'assister pour tous les actes de gestion ou pour certains d'entre eux.
III.-Dans sa mission d'assistance, l'administrateur est tenu au respect des obligations légales et conventionnelles incombant au chef d'entreprise.
IV.-A tout moment, le tribunal peut modifier la mission de l'administrateur sur la demande de celui-ci, du mandataire judiciaire ou du ministère public.
V.-L'administrateur peut faire fonctionner sous sa signature les comptes bancaires ou postaux dont le débiteur est titulaire si ce dernier a fait l'objet des interdictions prévues aux articles 65-2 et 68, troisième alinéa, du décret du 30 octobre 1935 unifiant le droit en matière de chèques.
Article L622-3
Le débiteur continue à exercer sur son patrimoine les actes de disposition et d'administration, ainsi que les droits et actions qui ne sont pas compris dans la mission de l'administrateur.
En outre, sous réserve des dispositions des articles L. 622-7 et L. 622-13, les actes de gestion courante qu'accomplit seul le débiteur sont réputés valables à l'égard des tiers de bonne foi.
Article L622-4
Dès son entrée en fonction, l'administrateur est tenu de requérir du débiteur ou, selon le cas, de faire lui-même tous actes nécessaires à la conservation des droits de l'entreprise contre les débiteurs de celle-ci et à la préservation des capacités de production.
L'administrateur a qualité pour inscrire au nom de l'entreprise tous hypothèques, nantissements, gages ou privilèges que le débiteur aurait négligé de prendre ou de renouveler.
Article L622-5
Dès le jugement d'ouverture, tout tiers détenteur est tenu de remettre à l'administrateur ou, à défaut, au mandataire judiciaire, à la demande de celui-ci, les documents et livres comptables en vue de leur examen.
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Article L622-6
Dès l'ouverture de la procédure, il est dressé un inventaire du patrimoine du débiteur ainsi que des garanties qui le grèvent. Cet inventaire, remis à l'administrateur et au mandataire judiciaire, est complété par le débiteur par la mention des biens qu'il détient susceptibles d'être revendiqués par un tiers.
Le débiteur remet à l'administrateur et au mandataire judiciaire la liste de ses créanciers, du montant de ses dettes et des principaux contrats en cours. Il les informe des instances en cours auxquelles il est partie.
L'administrateur ou, s'il n'en a pas été nommé, le mandataire judiciaire peut, nonobstant toute disposition législative ou réglementaire contraire, obtenir communication par les administrations et organismes publics, les organismes de prévoyance et de sécurité sociale, les établissements de crédit ainsi que les services chargés de centraliser les risques bancaires et les incidents de paiement, des renseignements de nature à lui donner une exacte information sur la situation patrimoniale du débiteur.
Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, l'inventaire est dressé en présence d'un représentant de l'ordre professionnel ou de l'autorité compétente dont, le cas échéant, il relève. En aucun cas l'inventaire ne peut porter atteinte au secret professionnel si le débiteur y est soumis.
L'absence d'inventaire ne fait pas obstacle à l'exercice des actions en revendication ou en restitution.
Un décret en Conseil d'Etat fixe les conditions d'application du présent article.
Article L622-6-1
Sauf s'il a été procédé, dans le jugement d'ouverture de la procédure, à la désignation d'un officier public chargé de dresser l'inventaire, celui-ci est établi par le débiteur et certifié par un commissaire aux comptes ou attesté par un expert-comptable. Les dispositions du quatrième alinéa de l'article L. 622-6 ne sont, en ce cas, pas applicables.
Si le débiteur n'engage pas les opérations d'inventaire dans un délai de huit jours à compter du jugement d'ouverture ou ne les achève pas dans un délai fixé par ce jugement, le juge-commissaire désigne pour y procéder ou les achever un commissaire-priseur judiciaire, un huissier de justice, un notaire ou un courtier en marchandises assermenté en considération de leurs attributions respectives telles qu'elles résultent des dispositions qui leur sont applicables. Il est saisi par l'administrateur, le mandataire judiciaire ou le ministère public. Il peut également se saisir d'office. Le délai fixé pour achever les opérations d'inventaire peut être prorogé par le juge-commissaire.
Article L622-7
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I.-Le jugement ouvrant la procédure emporte, de plein droit, interdiction de payer toute créance née antérieurement au jugement d'ouverture, à l'exception du paiement par compensation de créances connexes. Il emporte également, de plein droit, interdiction de payer toute créance née après le jugement d'ouverture, non mentionnée au I de l'article L. 622-17. Ces interdictions ne sont pas applicables au paiement des créances alimentaires.
De même, il emporte, de plein droit, inopposabilité du droit de rétention conféré par le 4° de l'article 2286 du code civil pendant la période d'observation et l'exécution du plan, sauf si le bien objet du gage est compris dans une cession d'activité décidée en application de l'article L. 626-1.
Il fait enfin obstacle à la conclusion et à la réalisation d'un pacte commissoire.
II.-Le juge-commissaire peut autoriser le débiteur à faire un acte de disposition étranger à la gestion courante de l'entreprise, à consentir une hypothèque, un gage ou un nantissement ou à compromettre ou transiger.
Le juge-commissaire peut aussi l'autoriser à payer des créances antérieures au jugement, pour retirer le gage ou une chose légitimement retenue ou encore pour obtenir le retour de biens et droits transférés à titre de garantie dans un patrimoine fiduciaire, lorsque ce retrait ou ce retour est justifié par la poursuite de l'activité. Ce paiement peut en outre être autorisé pour lever l'option d'achat d'un contrat de crédit-bail, lorsque cette levée d'option est justifiée par la poursuite de l'activité et que le paiement à intervenir est d'un montant inférieur à la valeur vénale du bien objet du contrat.
III.-Tout acte ou tout paiement passé en violation des dispositions du présent article est annulé à la demande de tout intéressé ou du ministère public, présentée dans un délai de trois ans à compter de la conclusion de l'acte ou du paiement de la créance. Lorsque l'acte est soumis à publicité, le délai court à compter de celle-ci.
Article L622-8
En cas de vente d'un bien grevé d'un privilège spécial, d'un gage, d'un nantissement ou d'une hypothèque, la quote-part du prix correspondant aux créances garanties par ces sûretés est versée en compte de dépôt à la Caisse des dépôts et consignations. Après l'adoption du plan, les créanciers bénéficiaires de ces sûretés ou titulaires d'un privilège général sont payés sur le prix suivant l'ordre de préférence existant entre eux et conformément à l'article L. 626-22 lorsqu'ils sont soumis aux délais du plan.
Le juge-commissaire peut ordonner le paiement provisionnel de tout ou partie de leur créance aux créanciers titulaires de sûretés sur le bien. Sauf décision spécialement motivée du juge-commissaire ou lorsqu'il intervient au bénéfice du Trésor ou des organismes sociaux ou organismes assimilés, ce paiement provisionnel est subordonné à la présentation par son bénéficiaire d'une garantie émanant d'un établissement de crédit.
Le débiteur peut proposer aux créanciers, la substitution aux garanties qu'ils détiennent de garanties équivalentes. En l'absence d'accord, le juge-commissaire peut ordonner cette substitution. Le recours contre cette ordonnance est porté devant la cour d'appel.
Article L622-9
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L'activité de l'entreprise est poursuivie pendant la période d'observation, sous réserve des dispositions des articles L. 622-10 à L. 622-16.
Article L622-10
A tout moment de la période d'observation, le tribunal, à la demande du débiteur peut ordonner la cessation partielle de l'activité.
Dans les mêmes conditions, à la demande du débiteur, de l'administrateur, du mandataire judiciaire, du ministère public ou d'office, il convertit la procédure en un redressement judiciaire, si les conditions de l'article L. 631-1 sont réunies, ou prononce la liquidation judiciaire, si les conditions de l'article L. 640-1 sont réunies. A la demande du débiteur, il décide également la conversion en redressement judiciaire si l'adoption d'un plan de sauvegarde est manifestement impossible et si la clôture de la procédure conduirait, de manière certaine et à bref délai, à la cessation des paiements.
Il statue après avoir entendu ou dûment appelé le débiteur, l'administrateur, le mandataire judiciaire, les contrôleurs et les représentants du comité d'entreprise ou, à défaut, des délégués du personnel, et avoir recueilli l'avis du ministère public.
Lorsqu'il convertit la procédure de sauvegarde en procédure de redressement judiciaire, le tribunal peut, si nécessaire, modifier la durée de la période d'observation restant à courir. Aux fins de réaliser la prisée des actifs du débiteur au vu de l'inventaire établi pendant la procédure de sauvegarde, il désigne, en considération de leurs attributions respectives telles qu'elles résultent des dispositions qui leur sont applicables, un commissaire-priseur judiciaire, un huissier de justice, un notaire ou un courtier en marchandises assermenté.
Article L622-11
Lorsque le tribunal prononce la liquidation, il met fin à la période d'observation et, sous réserve des dispositions de l'article L. 641-10, à la mission de l'administrateur. Dans les conditions prévues au dernier alinéa de l'article L. 622-10, il désigne une personne chargée de réaliser la prisée des actifs du débiteur.
Article L622-12
Lorsque les difficultés qui ont justifié l'ouverture de la procédure ont disparu, le tribunal y met fin à la demande du débiteur. Il statue dans les conditions prévues au quatrième alinéa de l'article L. 622-10.
Article L622-13
I. - Nonobstant toute disposition légale ou toute clause contractuelle, aucune indivisibilité,
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résiliation ou résolution d'un contrat en cours ne peut résulter du seul fait de l'ouverture d'une procédure de sauvegarde. Le cocontractant doit remplir ses obligations malgré le défaut d'exécution par le débiteur d'engagements antérieurs au jugement d'ouverture. Le défaut d'exécution de ces engagements n'ouvre droit au profit des créanciers qu'à déclaration au passif. II. - L'administrateur a seul la faculté d'exiger l'exécution des contrats en cours en fournissant la prestation promise au cocontractant du débiteur. Lorsque la prestation porte sur le paiement d'une somme d'argent, celui-ci doit se faire au comptant, sauf pour l'administrateur à obtenir l'acceptation, par le cocontractant du débiteur, de délais de paiement. Au vu des documents prévisionnels dont il dispose, l'administrateur s'assure, au moment où il demande l'exécution, qu'il disposera des fonds nécessaires à cet effet.S'il s'agit d'un contrat à exécution ou paiement échelonnés dans le temps, l'administrateur y met fin s'il lui apparaît qu'il ne disposera pas des fonds nécessaires pour remplir les obligations du terme suivant. III. - Le contrat en cours est résilié de plein droit : 1° Après une mise en demeure de prendre parti sur la poursuite du contrat adressée par le cocontractant à l'administrateur et restée plus d'un mois sans réponse. Avant l'expiration de ce délai, le juge-commissaire peut impartir à l'administrateur un délai plus court ou lui accorder une prolongation, qui ne peut excéder deux mois, pour se prononcer ; 2° A défaut de paiement dans les conditions définies au II et d'accord du cocontractant pour poursuivre les relations contractuelles. En ce cas, le ministère public, l'administrateur, le mandataire judiciaire ou un contrôleur peut saisir le tribunal aux fins de mettre fin à la période d'observation. IV. - A la demande de l'administrateur, la résiliation est prononcée par le juge-commissaire si elle est nécessaire à la sauvegarde du débiteur et ne porte pas une atteinte excessive aux intérêts du cocontractant. V. - Si l'administrateur n'use pas de la faculté de poursuivre le contrat ou y met fin dans les conditions du II ou encore si la résiliation est prononcée en application du IV, l'inexécution peut donner lieu à des dommages et intérêts au profit du cocontractant, dont le montant doit être déclaré au passif. Le cocontractant peut néanmoins différer la restitution des sommes versées en excédent par le débiteur en exécution du contrat jusqu'à ce qu'il ait été statué sur les dommages et intérêts. VI. - Les dispositions du présent article ne concernent pas les contrats de travail. Elles ne concernent pas non plus le contrat de fiducie, à l'exception de la convention en exécution de laquelle le débiteur conserve l'usage ou la jouissance de biens ou droits transférés dans un patrimoine fiduciaire.
Article L622-14
Sans préjudice de l'application du I et du II de l'article L. 622-13, la résiliation du bail des immeubles donnés à bail au débiteur et affectés à l'activité de l'entreprise intervient dans les conditions suivantes : 1° Au jour où le bailleur est informé de la décision de l'administrateur de ne pas continuer le bail. Dans ce cas, l'inexécution peut donner lieu à des dommages et intérêts au profit du cocontractant, dont le montant doit être déclaré au passif. Le cocontractant peut néanmoins différer la restitution des sommes versées en excédent par le débiteur en exécution du contrat jusqu'à ce qu'il ait été statué sur les dommages et intérêts ;
2° Lorsque le bailleur demande la résiliation ou fait constater la résiliation du bail pour défaut de paiement des loyers et charges afférents à une occupation postérieure au jugement d'ouverture, le bailleur ne pouvant agir qu'au terme d'un délai de trois mois à compter dudit jugement.
Si le paiement des sommes dues intervient avant l'expiration de ce délai, il n'y a pas lieu à résiliation.
Nonobstant toute clause contraire, le défaut d'exploitation pendant la période d'observation dans un ou plusieurs immeubles loués par l'entreprise n'entraîne pas résiliation du bail.
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Article L622-15
En cas de cession du bail, toute clause imposant au cédant des dispositions solidaires avec le cessionnaire est réputée non écrite.
Article L622-16
En cas de procédure de sauvegarde, le bailleur n'a privilège que pour les deux dernières années de loyers avant le jugement d'ouverture de la procédure.
Si le bail est résilié, le bailleur a, en outre, privilège pour l'année courante, pour tout ce qui concerne l'exécution du bail et pour les dommages et intérêts qui pourront lui être alloués par les tribunaux.
Si le bail n'est pas résilié, le bailleur ne peut exiger le paiement des loyers à échoir lorsque les sûretés qui lui ont été données lors du contrat sont maintenues ou lorsque celles qui ont été fournies depuis le jugement d'ouverture sont jugées suffisantes.
Le juge-commissaire peut autoriser le débiteur ou l'administrateur, selon le cas, à vendre des meubles garnissant les lieux loués soumis à dépérissement prochain, à dépréciation imminente ou dispendieux à conserver, ou dont la réalisation ne met pas en cause, soit l'existence du fonds, soit le maintien de garanties suffisantes pour le bailleur.
Article L622-17
I.-Les créances nées régulièrement après le jugement d'ouverture pour les besoins du déroulement de la procédure ou de la période d'observation, ou en contrepartie d'une prestation fournie au débiteur pendant cette période, sont payées à leur échéance.
II.-Lorsqu'elles ne sont pas payées à l'échéance, ces créances sont payées par privilège avant toutes les autres créances, assorties ou non de privilèges ou sûretés, à l'exception de celles garanties par le privilège établi aux articles L. 143-10, L. 143-11, L. 742-6 et L. 751-15 du code du travail, des frais de justice nés régulièrement après le jugement d'ouverture pour les besoins du déroulement de la procédure et de celles garanties par le privilège établi par l'article L. 611-11 du présent code.
III.-Leur paiement se fait dans l'ordre suivant :
1° Les créances de salaires dont le montant n'a pas été avancé en application des articles L. 143-11-1 à L. 143-11-3 du code du travail ;
2° Les prêts consentis ainsi que les créances résultant de l'exécution des contrats poursuivis conformément aux dispositions de l'article L. 622-13 et dont le cocontractant accepte de recevoir un paiement différé ; ces prêts et délais de paiement sont autorisés par le juge-commissaire dans la
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limite nécessaire à la poursuite de l'activité pendant la période d'observation et font l'objet d'une publicité. En cas de résiliation d'un contrat régulièrement poursuivi, les indemnités et pénalités sont exclues du bénéfice du présent article ;
3° Les autres créances, selon leur rang.
IV.-Les créances impayées perdent le privilège que leur confère le II du présent article si elles n'ont pas été portées à la connaissance de l'administrateur et, à défaut, du mandataire judiciaire ou, lorsque ces organes ont cessé leurs fonctions, du commissaire à l'exécution du plan ou du liquidateur, dans le délai d'un an à compter de la fin de la période d'observation.
Article L622-18
Toute somme perçue par l'administrateur ou le mandataire judiciaire qui n'est pas portée sur les comptes bancaires ou postaux du débiteur, pour les besoins de la poursuite d'activité, doit être versée immédiatement en compte de dépôt à la Caisse des dépôts et consignations.
En cas de retard, l'administrateur ou le mandataire judiciaire doit, pour les sommes qu'il n'a pas versées, un intérêt dont le taux est égal au taux de l'intérêt légal majoré de cinq points.
Article L622-19
Toute somme versée par l'association mentionnée à l'article L. 143-11-4 du code du travail en application des articles L. 143-11-1 à L. 143-11-3 du même code donne lieu à déclaration à l'administration fiscale.
Article L622-20
Le mandataire judiciaire désigné par le tribunal a seul qualité pour agir au nom et dans l'intérêt collectif des créanciers. Toutefois, en cas de carence du mandataire judiciaire, tout créancier nommé contrôleur peut agir dans cet intérêt dans des conditions fixées par décret en Conseil d'Etat.
Le mandataire judiciaire communique au juge-commissaire et au ministère public les observations qui lui sont transmises à tout moment de la procédure par les contrôleurs.
Les sommes recouvrées à l'issue des actions introduites par le mandataire judiciaire ou, à défaut, par le ou les créanciers nommés contrôleurs, entrent dans le patrimoine du débiteur et sont affectées en cas de continuation de l'entreprise selon les modalités prévues pour l'apurement du passif.
Article L622-21
I.-Le jugement d'ouverture interrompt ou interdit toute action en justice de la part de tous les
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créanciers dont la créance n'est pas mentionnée au I de l'article L. 622-17 et tendant :
1° A la condamnation du débiteur au paiement d'une somme d'argent ;
2° A la résolution d'un contrat pour défaut de paiement d'une somme d'argent.
II.-Il arrête ou interdit également toute procédure d'exécution de la part de ces créanciers tant sur les meubles que sur les immeubles ainsi que toute procédure de distribution n'ayant pas produit un effet attributif avant le jugement d'ouverture.
III.-Les délais impartis à peine de déchéance ou de résolution des droits sont en conséquence interrompus.
Article L622-22
Sous réserve des dispositions de l'article L. 625-3, les instances en cours sont interrompues jusqu'à ce que le créancier poursuivant ait procédé à la déclaration de sa créance. Elles sont alors reprises de plein droit, le mandataire judiciaire et, le cas échéant, l'administrateur ou le commissaire à l'exécution du plan nommé en application de l'article L. 626-25 dûment appelés, mais tendent uniquement à la constatation des créances et à la fixation de leur montant.
Article L622-23
Les actions en justice et les procédures d'exécution autres que celles visées à l'article L. 622-21 sont poursuivies au cours de la période d'observation à l'encontre du débiteur, après mise en cause du mandataire judiciaire et de l'administrateur lorsqu'il a une mission d'assistance ou après une reprise d'instance à leur initiative.
Article L622-23-1
Lorsque des biens ou droits présents dans un patrimoine fiduciaire font l'objet d'une convention en exécution de laquelle le débiteur constituant en conserve l'usage ou la jouissance, aucune cession ou aucun transfert de ces biens ou droits ne peut intervenir au profit du fiduciaire ou d'un tiers du seul fait de l'ouverture de la procédure, de l'arrêté du plan ou encore d'un défaut de paiement d'une créance née antérieurement au jugement d'ouverture. Cette interdiction est prévue à peine de nullité de la cession ou du transfert.
Article L622-24
A partir de la publication du jugement, tous les créanciers dont la créance est née antérieurement au jugement d'ouverture, à l'exception des salariés, adressent la déclaration de leurs créances au mandataire judiciaire dans des délais fixés par décret en Conseil d'Etat. Les créanciers titulaires d'une sûreté publiée ou liés au débiteur par un contrat publié sont avertis personnellement ou, s'il y a lieu, à domicile élu. Le délai de déclaration court à l'égard de ceux-ci à compter de la notification de
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cet avertissement.
La déclaration des créances peut être faite par le créancier ou par tout préposé ou mandataire de son choix.
La déclaration des créances doit être faite alors même qu'elles ne sont pas établies par un titre. Celles dont le montant n'est pas encore définitivement fixé sont déclarées sur la base d'une évaluation. Les créances du Trésor public et des organismes de prévoyance et de sécurité sociale ainsi que les créances recouvrées par les organismes visés à l'article L. 351-21 du code du travail qui n'ont pas fait l'objet d'un titre exécutoire au moment de leur déclaration sont admises à titre provisionnel pour leur montant déclaré. En tout état de cause, les déclarations du Trésor et de la sécurité sociale sont toujours faites sous réserve des impôts et autres créances non établis à la date de la déclaration. Sous réserve des procédures judiciaires ou administratives en cours, leur établissement définitif doit, à peine de forclusion, être effectué dans le délai prévu à l'article L. 624-1.
Les institutions mentionnées à l'article L. 143-11-4 du code du travail sont soumises aux dispositions du présent article pour les sommes qu'elles ont avancées et qui leur sont remboursées dans les conditions prévues pour les créances nées antérieurement au jugement ouvrant la procédure.
Les créances nées régulièrement après le jugement d'ouverture, autres que celles mentionnées au I de l'article L. 622-17 sont soumises aux dispositions du présent article. Les délais courent à compter de la date d'exigibilité de la créance. Toutefois, les créanciers dont les créances résultent d'un contrat à exécution successive déclarent l'intégralité des sommes qui leur sont dues dans des conditions prévues par décret en Conseil d'Etat.
Le délai de déclaration, par une partie civile, des créances nées d'une infraction pénale court dans les conditions prévues au premier alinéa ou à compter de la date de la décision définitive qui en fixe le montant, lorsque cette décision intervient après la publication du jugement d'ouverture.
Les créances alimentaires ne sont pas soumises aux dispositions du présent article.
Article L622-25
La déclaration porte le montant de la créance due au jour du jugement d'ouverture avec indication des sommes à échoir et de la date de leurs échéances. Elle précise la nature du privilège ou de la sûreté dont la créance est éventuellement assortie.
Lorsqu'il s'agit de créances en monnaie étrangère, la conversion en euros a lieu selon le cours du change à la date du jugement d'ouverture.
Sauf si elle résulte d'un titre exécutoire, la créance déclarée est certifiée sincère par le créancier. Le visa du commissaire aux comptes ou, à défaut, de l'expert-comptable sur la déclaration de créance peut être demandé par le juge-commissaire. Le refus de visa est motivé.
Article L622-26
A défaut de déclaration dans les délais prévus à l'article L. 622-24, les créanciers ne sont pas admis
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dans les répartitions et les dividendes à moins que le juge-commissaire ne les relève de leur forclusion s'ils établissent que leur défaillance n'est pas due à leur fait ou qu'elle est due à une omission volontaire du débiteur lors de l'établissement de la liste prévue au deuxième alinéa de l'article L. 622-6. Ils ne peuvent alors concourir que pour les distributions postérieures à leur demande.
Les créances non déclarées régulièrement dans ces délais sont inopposables au débiteur pendant l'exécution du plan et après cette exécution lorsque les engagements énoncés dans le plan ou décidés par le tribunal ont été tenus. Pendant l'exécution du plan, ell es sont également inopposables aux personnes physiques coobligées ou ayant consenti une sûreté personnelle ou ayant affecté ou cédé un bien en garantie.
L'action en relevé de forclusion ne peut être exercée que dans le délai de six mois. Ce délai court à compter de la publication du jugement d'ouverture ou, pour les institutions mentionnées à l'article L. 143-11-4 du code du travail, de l'expiration du délai pendant lequel les créances résultant du contrat de travail sont garanties par ces institutions. Pour les créanciers titulaires d'une sûreté publiée ou liés au débiteur par un contrat publié, il court à compter de la réception de l'avis qui leur est donné. Par exception, le délai est porté à un an pour les créanciers placés dans l'impossibilité de connaître l'existence de leur créance avant l'expiration du délai de six mois précité.
Article L622-27
S'il y a discussion sur tout ou partie d'une créance autre que celles mentionnées à l'article L. 653-1, le mandataire judiciaire en avise le créancier intéressé en l'invitant à faire connaître ses explications. Le défaut de réponse dans le délai de trente jours interdit toute contestation ultérieure de la proposition du mandataire judiciaire.
Article L622-28
Le jugement d'ouverture arrête le cours des intérêts légaux et conventionnels, ainsi que de tous intérêts de retard et majorations, à moins qu'il ne s'agisse des intérêts résultant de contrats de prêt conclus pour une durée égale ou supérieure à un an ou de contrats assortis d'un paiement différé d'un an ou plus. Les personnes physiques coobligées ou ayant consenti une sûreté personnelle ou ayant affecté ou cédé un bien en garantie peuvent se prévaloir des dispositions du présent alinéa.
Le jugement d'ouverture suspend jusqu'au jugement arrêtant le plan ou prononçant la liquidation toute action contre les personnes physiques coobligées ou ayant consenti une sûreté personnelle ou ayant affecté ou cédé un bien en garantie. Le tribunal peut ensuite leur accorder des délais ou un différé de paiement dans la limite de deux ans.
Les créanciers bénéficiaires de ces garanties peuvent prendre des mesures conservatoires.
Article L622-29
Le jugement d'ouverture ne rend pas exigibles les créances non échues à la date de son prononcé. Toute clause contraire est réputée non écrite.
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Article L622-30
Les hypothèques, gages, nantissements et privilèges ne peuvent plus être inscrits postérieurement au jugement d'ouverture. Il en va de même des actes et des décisions judiciaires translatifs ou constitutifs de droits réels, à moins que ces actes n'aient acquis date certaine ou que ces décisions ne soient devenues exécutoires avant le jugement d'ouverture.
Toutefois, le Trésor public conserve son privilège pour les créances qu'il n'était pas tenu d'inscrire à la date du jugement d'ouverture et pour les créances mises en recouvrement après cette date si ces créances sont déclarées dans les conditions prévues à l'article L. 622-24.
Le vendeur du fonds de commerce, par dérogation aux dispositions du premier alinéa, peut inscrire son privilège.
Article L622-31
Le créancier, porteur d'engagements souscrits, endossés ou garantis solidairement par deux ou plusieurs coobligés soumis à une procédure de sauvegarde, peut déclarer sa créance pour la valeur nominale de son titre, dans chaque procédure.
Article L622-32
Aucun recours pour les paiements effectués n'est ouvert aux coobligés soumis à une procédure de sauvegarde les uns contre les autres à moins que la réunion des sommes versées en vertu de chaque procédure n'excède le montant total de la créance, en principal et accessoire ; en ce cas, cet excédent est dévolu, suivant l'ordre des engagements, à ceux des coobligés qui auraient les autres pour garants.
Article L622-33
Si le créancier porteur d'engagements solidairement souscrits par le débiteur soumis à une procédure de sauvegarde et d'autres coobligés a reçu un acompte sur sa créance avant le jugement d'ouverture, il ne peut déclarer sa créance que sous déduction de cet acompte et conserve, sur ce qui lui reste dû, ses droits contre le coobligé ou la caution.
Le coobligé ou la caution qui a fait le paiement partiel peut déclarer sa créance pour tout ce qu'il a payé à la décharge du débiteur.
Chapitre III : De l'élaboration du bilan économique, social et
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environnemental.
Article L623-1
L'administrateur, avec le concours du débiteur et l'assistance éventuelle d'un ou plusieurs experts, est chargé de dresser dans un rapport le bilan économique et social de l'entreprise.
Le bilan économique et social précise l'origine, l'importance et la nature des difficultés de l'entreprise.
Dans le cas où l'entreprise exploite une ou des installations classées au sens du titre Ier du livre V du code de l'environnement, le bilan économique et social est complété par un bilan environnemental que l'administrateur fait réaliser dans des conditions prévues par décret en Conseil d'Etat.
Article L623-2
Le juge-commissaire peut, nonobstant toute disposition législative ou réglementaire contraire, obtenir communication par les commissaires aux comptes, les experts-comptables, les membres et représentants du personnel, par les administrations et organismes publics, les organismes de prévoyance et de sécurité sociales, les établissements de crédit, les établissements de paiement ainsi que les services chargés de centraliser les risques bancaires et les incidents de paiement des renseignements de nature à lui donner une exacte information sur la situation économique, financière, sociale et patrimoniale du débiteur.
Article L623-3
L'administrateur reçoit du juge-commissaire tous renseignements et documents utiles à l'accomplissement de sa mission et de celle des experts.
Lorsque la procédure est ouverte à l'égard d'une entreprise qui bénéficie de l'accord amiable homologué prévu à l'article L. 611-8 du présent code ou à l'article L. 351-6 du code rural, l'administrateur reçoit communication du rapport d'expertise mentionné à l'article L. 611-6 ou, le cas échéant, du rapport d'expertise et du compte rendu mentionnés aux articles L. 351-3 et L. 351-6 du code rural.
L'administrateur consulte et le mandataire judiciaire et entend toute personne susceptible de l'informer sur la situation et les perspectives de redressement de l'entreprise, les modalités de règlement du passif et conditions sociales de la poursuite de l'activité. Il en informe le débiteur et recueille ses observations.
Il informe de l'avancement de ses travaux le mandataire judiciaire ainsi que le comité d'entreprise
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ou, à défaut, les délégués du personnel.
Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, l'administrateur consulte l'ordre professionnel ou l'autorité compétente dont, le cas échéant, relève le débiteur.
Chapitre IV : De la détermination du patrimoine du débiteur.
Section 1 : De la vérification et de l'admission des créances.
Article L624-1
Dans le délai fixé par le tribunal, le mandataire judiciaire établit, après avoir sollicité les observations du débiteur, la liste des créances déclarées avec ses propositions d'admission, de rejet ou de renvoi devant la juridiction compétente. Il transmet cette liste au juge-commissaire.
Le mandataire judiciaire ne peut être rémunéré au titre des créances déclarées ne figurant pas sur la liste établie dans le délai mentionné ci-dessus, sauf pour des créances déclarées après ce délai, en application des deux derniers alinéas de l'article L. 622-24.
Article L624-2
Au vu des propositions du mandataire judiciaire, le juge-commissaire décide de l'admission ou du rejet des créances ou constate soit qu'une instance est en cours, soit que la contestation ne relève pas de sa compétence.
Article L624-3
Le recours contre les décisions du juge commissaire prises en application de la présente section est ouvert au créancier, au débiteur ou au mandataire judiciaire.
Toutefois, le créancier dont la créance est discutée en tout ou en partie et qui n'a pas répondu au mandataire judiciaire dans le délai mentionné à l'article L. 622-27 ne peut pas exercer de recours contre la décision du juge-commissaire lorsque celle-ci confirme la proposition du mandataire judiciaire.
Les conditions et les formes du recours prévu au premier alinéa sont fixées par décret en Conseil d'Etat.
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Article L624-3-1
Les décisions d'admission ou de rejet des créances ou d'incompétence prononcées par le juge-commissaire sont portées sur un état qui est déposé au greffe du tribunal. Toute personne intéressée, à l'exclusion de celles mentionnées à l'article L. 624-3, peut former une réclamation devant le juge-commissaire dans des conditions fixées par décret en Conseil d'Etat.
Article L624-4
Le juge-commissaire statue en dernier ressort dans les cas prévus à la présente section lorsque la valeur de la créance en principal n'excède pas le taux de compétence en dernier ressort du tribunal qui a ouvert la procédure.
Section 2 : Des droits du conjoint.
Article L624-5
Le conjoint du débiteur soumis à une procédure de sauvegarde établit la consistance de ses biens personnels conformément aux règles des régimes matrimoniaux et dans les conditions prévues par les articles L. 624-9 et L. 624-10.
Article L624-6
Le mandataire judiciaire ou l'administrateur peut, en prouvant par tous les moyens que les biens acquis par le conjoint du débiteur l'ont été avec des valeurs fournies par celui-ci, demander que les acquisitions ainsi faites soient réunies à l'actif.
Article L624-7
Les reprises faites en application de l'article L. 624-5 ne sont exercées qu'à charge des dettes et hypothèques dont ces biens sont légalement grevés.
Article L624-8
Le conjoint du débiteur qui, lors de son mariage, dans l'année de celui-ci ou dans l'année suivante, était agriculteur ou exerçait une activité commerciale, artisanale ou toute autre activité
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professionnelle indépendante, ne peut exercer dans la procédure de sauvegarde aucune action à raison des avantages faits par l'un des époux à l'autre, dans le contrat de mariage ou pendant le mariage. Les créanciers ne peuvent, de leur côté, se prévaloir des avantages faits par l'un des époux à l'autre.
Section 3 : Des droits du vendeur de meubles, des revendications et des restitutions.
Article L624-9
La revendication des meubles ne peut être exercée que dans le délai de trois mois suivant la publication du jugement ouvrant la procédure.
Article L624-10
Le propriétaire d'un bien est dispensé de faire reconnaître son droit de propriété lorsque le contrat portant sur ce bien a fait l'objet d'une publicité. Il peut réclamer la restitution de son bien dans des conditions fixées par décret en Conseil d'Etat.
Article L624-10-1
Lorsque le droit à restitution a été reconnu dans les conditions prévues aux articles L. 624-9 ou L. 624-10 et que le bien fait l'objet d'un contrat en cours au jour de l'ouverture de la procédure, la restitution effective intervient au jour de la résiliation ou du terme du contrat.
Article L624-11
Le privilège et le droit de revendication établis par le 4° de l'article 2332 du code civil au profit du vendeur de meubles ainsi que l'action résolutoire ne peuvent être exercés que dans la limite des dispositions des articles L. 624-12 à L. 624-18 du présent code.
Article L624-12
Peuvent être revendiquées, si elles existent en nature, en tout ou partie, les marchandises dont la vente a été résolue antérieurement au jugement ouvrant la procédure soit par décision de justice, soit par le jeu d'une condition résolutoire acquise.
La revendication doit pareillement être admise bien que la résolution de la vente ait été prononcée
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ou constatée par décision de justice postérieurement au jugement ouvrant la procédure lorsque l'action en revendication ou en résolution a été intentée antérieurement au jugement d'ouverture par le vendeur pour une cause autre que le défaut de paiement du prix.
Article L624-13
Peuvent être revendiquées les marchandises expédiées au débiteur tant que la tradition n'en a point été effectuée dans ses magasins ou dans ceux du commissionnaire chargé de les vendre pour son compte.
Néanmoins, la revendication n'est pas recevable si, avant leur arrivée, les marchandises ont été revendues sans fraude, sur factures ou titres de transport réguliers.
Article L624-14
Peuvent être retenues par le vendeur les marchandises qui ne sont pas délivrées ou expédiées au débiteur ou à un tiers agissant pour son compte.
Article L624-15
Peuvent être revendiqués, s'ils se trouvent encore dans le portefeuille du débiteur, les effets de commerce ou autres titres non payés, remis par leur propriétaire pour être recouvrés ou pour être spécialement affectés à des paiements déterminés.
Article L624-16
Peuvent être revendiqués, à condition qu'ils se retrouvent en nature, les biens meubles remis à titre précaire au débiteur ou ceux transférés dans un patrimoine fiduciaire dont le débiteur conserve l'usage ou la jouissance en qualité de constituant.
Peuvent également être revendiqués, s'ils se retrouvent en nature au moment de l'ouverture de la procédure, les biens vendus avec une clause de réserve de propriété. Cette clause doit avoir été convenue entre les parties dans un écrit au plus tard au moment de la livraison. Elle peut l'être dans un écrit régissant un ensemble d'opérations commerciales convenues entre les parties.
La revendication en nature peut s'exercer dans les mêmes conditions sur les biens mobiliers incorporés dans un autre bien lorsque la séparation de ces biens peut être effectuée sans qu'ils en subissent un dommage. La revendication en nature peut également s'exercer sur des biens fongibles lorsque des biens de même nature et de même qualité se trouvent entre les mains du débiteur ou de toute personne les détenant pour son compte.
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Dans tous les cas, il n'y a pas lieu à revendication si, sur décision du juge-commissaire, le prix est payé immédiatement. Le juge-commissaire peut également, avec le consentement du créancier requérant, accorder un délai de règlement. Le paiement du prix est alors assimilé à celui des créances mentionnées au I de l'article L. 622-17.
Article L624-17
L'administrateur avec l'accord du débiteur ou à défaut le débiteur après accord du mandataire judiciaire peut acquiescer à la demande en revendication ou en restitution d'un bien visé à la présente section. A défaut d'accord ou en cas de contestation, la demande est portée devant le juge-commissaire qui statue sur le sort du contrat, au vu des observations du créancier, du débiteur et du mandataire de justice saisi.
Article L624-18
Peut être revendiqué le prix ou la partie du prix des biens visés à l'article L. 624-16 qui n'a été ni payé, ni réglé en valeur, ni compensé entre le débiteur et l'acheteur à la date du jugement ouvrant la procédure. Peut être revendiquée dans les mêmes conditions l'indemnité d'assurance subrogée au bien.
Chapitre V : Du règlement des créances résultant du contrat de travail.
Section 1 : De la vérification des créances.
Article L625-1
Après vérification, le mandataire judiciaire établit, dans les délais prévus à l'article L. 143-11-7 du code du travail, les relevés des créances résultant d'un contrat de travail, le débiteur entendu ou dûment appelé. Les relevés des créances sont soumis au représentant des salariés dans les conditions prévues à l'article L. 625-2. Ils sont visés par le juge-commissaire, déposés au greffe du tribunal et font l'objet d'une mesure de publicité dans des conditions fixées par décret en Conseil d'Etat.
Le salarié dont la créance ne figure pas en tout ou en partie sur un relevé peut saisir à peine de forclusion le conseil de prud'hommes dans un délai de deux mois à compter de l'accomplissement de la mesure de publicité mentionnée à l'alinéa précédent. Il peut demander au représentant des salariés de l'assister ou de le représenter devant la juridiction prud'homale.
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Le débiteur et l'administrateur lorsqu'il a une mission d'assistance sont mis en cause.
Article L625-2
Les relevés des créances résultant des contrats de travail sont soumis pour vérification par le mandataire judiciaire au représentant des salariés mentionné à l'article L. 621-4. Le mandataire judiciaire doit lui communiquer tous documents et informations utiles. En cas de difficultés, le représentant des salariés peut s'adresser à l'administrateur et, le cas échéant, saisir le juge-commissaire. Il est tenu à l'obligation de discrétion mentionnée à l'article L. 432-7 du code du travail. Le temps passé à l'exercice de sa mission tel qu'il est fixé par le juge-commissaire est considéré de plein droit comme temps de travail et payé à l'échéance normale.
Article L625-3
Les instances en cours devant la juridiction prud'homale à la date du jugement d'ouverture sont poursuivies en présence du mandataire judiciaire et de l'administrateur lorsqu'il a une mission d'assistance ou ceux-ci dûment appelés.
Le mandataire judiciaire informe dans les dix jours la juridiction saisie et les salariés parties à l'instance de l'ouverture de la procédure.
Article L625-4
Lorsque les institutions mentionnées à l'article L. 143-11-4 du code du travail refusent pour quelque cause que ce soit de régler une créance figurant sur un relevé des créances résultant d'un contrat de travail, elles font connaître leur refus au mandataire judiciaire qui en informe immédiatement le représentant des salariés et le salarié concerné.
Ce dernier peut saisir du litige le conseil de prud'hommes. Le mandataire judiciaire, le débiteur et l'administrateur lorsqu'il a une mission d'assistance sont mis en cause.
Le salarié peut demander au représentant des salariés de l'assister ou de le représenter devant la juridiction prud'homale.
Article L625-5
Les litiges soumis au conseil de prud'hommes en application des articles L. 625-1 et L. 625-4 sont portés directement devant le bureau de jugement.
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Article L625-6
Les relevés des créances résultant d'un contrat de travail, visés par le juge-commissaire, ainsi que les décisions rendues par la juridiction prud'homale sont portés sur l'état des créances déposé au greffe. Toute personne intéressée, à l'exclusion de celles visées aux articles L. 625-1, L. 625-3 et L. 625-4, peut former une réclamation ou une tierce opposition dans des conditions prévues par décret en Conseil d'Etat.
Section 2 : Du privilège des salariés.
Article L625-7
Les créances résultant d'un contrat de travail sont garanties en cas d'ouverture d'une procédure de sauvegarde :
1° Par le privilège établi par les articles L. 143-10, L. 143-11, L. 742-6 et L. 751-15 du code du travail, pour les causes et montants définis auxdits articles ;
2° Par le privilège du 4° de l'article 2331 et du 2° de l'article 2104 du code civil.
Article L625-8
Nonobstant l'existence de toute autre créance, les créances que garantit le privilège établi aux articles L. 143-10, L. 143-11, L. 742-6 et L. 751-15 du code du travail doivent, sur ordonnance du juge-commissaire, être payées dans les dix jours du prononcé du jugement ouvrant la procédure par le débiteur ou, lorsqu'il a une mission d'assistance, par l'administrateur, si le débiteur ou l'administrateur dispose des fonds nécessaires.
Toutefois, avant tout établissement du montant de ces créances, le débiteur ou l'administrateur s'il a une mission d'assistance doit, avec l'autorisation du juge-commissaire et dans la mesure des fonds disponibles, verser immédiatement aux salariés, à titre provisionnel, une somme égale à un mois de salaire impayé, sur la base du dernier bulletin de salaire, et sans pouvoir dépasser le plafond visé à l'article L. 143-10 du code du travail.
A défaut de disponibilités, les sommes dues en vertu des deux alinéas précédents doivent être acquittées sur les premières rentrées de fonds.
Section 3 : De la garantie du paiement des créances résultant du contrat de travail.
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Article L625-9
Sans préjudice des règles fixées aux articles L. 625-7 et L. 625-8, les créances résultant du contrat de travail ou du contrat d'apprentissage sont garanties dans les conditions fixées aux articles L. 3253-2 à L. 3253-4, L. 3253-6 à L. 3253-21 et L. 8252-3 du code du travail.
Chapitre VI : Du plan de sauvegarde.
Article L626-1
Lorsqu'il existe une possibilité sérieuse pour l'entreprise d'être sauvegardée, le tribunal arrête dans ce but un plan qui met fin à la période d'observation.
Ce plan de sauvegarde comporte, s'il y a lieu, l'arrêt, l'adjonction ou la cession d'une ou de plusieurs activités. Les cessions faites en application du présent article sont soumises aux dispositions de la section 1 du chapitre II du titre IV et à l'article L. 642-22. Le mandataire judiciaire exerce les missions confiées au liquidateur par ces dispositions.
Les droits de préemption institués par le code rural ou le code de l'urbanisme ne peuvent s'exercer sur un bien compris dans une cession d'une ou de plusieurs activités décidée en application du présent article.
Section 1 : De l'élaboration du projet de plan.
Article L626-2
Au vu du bilan économique, social et, le cas échéant, environnemental, le débiteur, avec le concours de l'administrateur, propose un plan, sans préjudice de l'application des dispositions de l'article L. 622-10.
Le projet de plan détermine les perspectives de redressement en fonction des possibilités et des modalités d'activités, de l'état du marché et des moyens de financement disponibles.
Il définit les modalités de règlement du passif et les garanties éventuelles que le débiteur doit souscrire pour en assurer l'exécution.
Ce projet expose et justifie le niveau et les perspectives d'emploi ainsi que les conditions sociales envisagées pour la poursuite d'activité. Lorsque le projet prévoit des licenciements pour motif économique, il rappelle les mesures déjà intervenues et définit les actions à entreprendre en vue de faciliter le reclassement et l'indemnisation des salariés dont l'emploi est menacé. Le projet tient compte des travaux recensés par le bilan environnemental.
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Il recense, annexe et analyse les offres d'acquisition portant sur une ou plusieurs activités, présentées par des tiers. Il indique la ou les activités dont sont proposés l'arrêt ou l'adjonction.
Article L626-3
Lorsque le projet de plan prévoit une modification du capital, l'assemblée générale extraordinaire ou l'assemblée des associés ainsi que, lorsque leur approbation est nécessaire, les assemblées spéciales mentionnées aux articles L. 225-99 et L. 228-35-6 ou les assemblées générales des masses visées à l'article L. 228-103 sont convoquées dans des conditions définies par décret en Conseil d'Etat.
Si, du fait des pertes constatées dans les documents comptables, les capitaux propres sont inférieurs à la moitié du capital social, l'assemblée est d'abord appelée à reconstituer ces capitaux à concurrence du montant proposé par l'administrateur et qui ne peut être inférieur à la moitié du capital social. Elle peut également être appelée à décider la réduction et l'augmentation du capital en faveur d'une ou plusieurs personnes qui s'engagent à exécuter le plan.
Les engagements pris par les actionnaires ou associés ou par de nouveaux souscripteurs sont subordonnés dans leur exécution à l'acceptation du plan par le tribunal.
Les clauses d'agrément sont réputées non écrites.
Article L626-5
Les propositions pour le règlement des dettes sont, au fur et à mesure de leur élaboration et sous surveillance du juge-commissaire, communiquées par l'administrateur au mandataire judiciaire, aux contrôleurs ainsi qu'au comité d'entreprise ou, à défaut, aux délégués du personnel.
Le mandataire judiciaire recueille individuellement ou collectivement l'accord de chaque créancier qui a déclaré sa créance conformément à l'article L. 622-24, sur les délais et remises qui lui sont proposés. En cas de consultation par écrit, le défaut de réponse, dans le délai de trente jours à compter de la réception de la lettre du mandataire judiciaire, vaut acceptation. Ces dispositions sont applicables aux institutions visées à l'article L. 143-11-4 du code du travail pour les sommes mentionnées au quatrième alinéa de l'article L. 622-24, même si leurs créances ne sont pas encore déclarées. Elles le sont également aux créanciers mentionnés au premier alinéa de l'article L. 626-6 lorsque la proposition qui leur est soumise porte exclusivement sur des délais de paiement.
Article L626-6
Les administrations financières, les organismes de sécurité sociale, les institutions gérant le régime d'assurance chômage prévu par les articles L. 351-3 et suivants du code du travail et les institutions régies par le livre IX du code de la sécurité sociale peuvent accepter de remettre tout ou partie de ses dettes au débiteur dans des conditions similaires à celles que lui octroierait, dans des conditions normales de marché, un opérateur économique privé placé dans la même situation.
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Dans ce cadre, les administrations financières peuvent remettre l'ensemble des impôts directs perçus au profit de l'Etat et des collectivités territoriales ainsi que des produits divers du budget de l'Etat dus par le débiteur.S'agissant des impôts indirects perçus au profit de l'Etat et des collectivités territoriales, seuls les intérêts de retard, majorations, pénalités ou amendes peuvent faire l'objet d'une remise.
Les conditions de la remise de la dette sont fixées par décret.
Les créanciers visés au premier alinéa peuvent également décider des cessions de rang de privilège ou d'hypothèque ou de l'abandon de ces sûretés.
Article L626-7
Le mandataire judiciaire dresse un état des réponses faites par les créanciers. Cet état est adressé au débiteur et à l'administrateur ainsi qu'aux contrôleurs.
Article L626-8
Le comité d'entreprise ou, à défaut, les délégués du personnel et le mandataire judiciaire sont informés et consultés sur les mesures que le débiteur envisage de proposer dans le projet de plan au vu des informations et offres reçues.
Ils le sont également, ainsi que le ou les contrôleurs, sur le bilan économique et social et sur le projet de plan, qui leur sont communiqués par l'administrateur et complétés, le cas échéant, de ses observations.
Les documents mentionnés au deuxième alinéa sont simultanément adressés à l'autorité administrative compétente en matière de droit du travail. Le procès-verbal de la réunion à l'ordre du jour de laquelle a été inscrite la consultation des représentants du personnel est transmis au tribunal ainsi qu'à l'autorité administrative mentionnée ci-dessus.
Le ministère public en reçoit communication.
Section 2 : Du jugement arrêtant le plan et de l'exécution du plan.
Article L626-9
Après avoir entendu ou dûment appelé le débiteur, l'administrateur, le mandataire judiciaire, les contrôleurs ainsi que les représentants du comité d'entreprise ou, à défaut, des délégués du personnel, le tribunal statue au vu des documents prévus à l'article L. 626-8, après avoir recueilli l'avis du ministère public. Lorsque la procédure est ouverte au bénéfice d'un débiteur qui emploie un nombre de salariés ou qui justifie d'un chiffre d'affaires hors taxes supérieurs à des seuils fixés
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par décret en Conseil d'Etat, les débats doivent avoir lieu en présence du ministère public.
Article L626-10
Le plan désigne les personnes tenues de l'exécuter et mentionne l'ensemble des engagements qui ont été souscrits par elles et qui sont nécessaires à la sauvegarde de l'entreprise. Ces engagements portent sur l'avenir de l'activité, les modalités du maintien et du financement de l'entreprise, le règlement du passif soumis à déclaration ainsi que, s'il y a lieu, les garanties fournies pour en assurer l'exécution.
Le plan expose et justifie le niveau et les perspectives d'emploi ainsi que les conditions sociales envisagés pour la poursuite d'activité.
Les personnes qui exécuteront le plan, même à titre d'associés, ne peuvent pas se voir imposer des charges autres que les engagements qu'elles ont souscrits au cours de sa préparation, sous réserve des dispositions prévues aux articles L. 626-3 et L. 626-16.
Article L626-11
Le jugement qui arrête le plan en rend les dispositions opposables à tous.
A l'exception des personnes morales, les coobligés et les personnes ayant consenti une sûreté personnelle ou ayant affecté ou cédé un bien en garantie peuvent s'en prévaloir.
Article L626-12
Sans préjudice de l'application des dispositions de l'article L. 626-18, la durée du plan est fixée par le tribunal. Elle ne peut excéder dix ans. Lorsque le débiteur est un agriculteur, elle ne peut excéder quinze ans.
Article L626-13
L'arrêt du plan par le tribunal entraîne la levée de plein droit de toute interdiction d'émettre des chèques conformément à l'article L. 131-73 du code monétaire et financier, mise en oeuvre à l'occasion du rejet d'un chèque émis avant le jugement d'ouverture de la procédure.
Article L626-14
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Dans le jugement arrêtant le plan ou le modifiant, le tribunal peut décider que les biens qu'il estime indispensables à la continuation de l'entreprise ne pourront être aliénés, pour une durée qu'il fixe, sans son autorisation. La durée de l'inaliénabilité ne peut excéder celle du plan.
Lorsque le tribunal est saisi d'une demande d'autorisation d'aliéner un bien rendu inaliénable en application du premier alinéa, il statue, à peine de nullité, après avoir recueilli l'avis du ministère public.
La publicité de l'inaliénabilité temporaire est assurée dans des conditions fixées par décret en Conseil d'Etat.
Tout acte passé en violation des dispositions du premier alinéa est annulé à la demande de tout intéressé ou du ministère public, présentée dans le délai de trois ans à compter de la conclusion de l'acte. Lorsque l'acte est soumis à publicité, le délai court à compter de celle-ci.
Article L626-15
Le plan mentionne les modifications des statuts nécessaires à la réorganisation de l'entreprise.
Article L626-16
En cas de nécessité, le jugement qui arrête le plan donne mandat à l'administrateur de convoquer, dans des conditions fixées par décret en Conseil d'Etat, l'assemblée compétente pour mettre en oeuvre les modifications prévues par le plan.
Article L626-17
Les associés ou actionnaires sont tenus de libérer le capital qu'ils souscrivent dans le délai fixé par le tribunal. En cas de libération immédiate, ils peuvent bénéficier de la compensation à concurrence du montant de leurs créances admises et dans la limite de la réduction dont elles sont l'objet dans le plan sous forme de remises ou de délais.
Article L626-18
Le tribunal donne acte des délais et remises acceptés par les créanciers dans les conditions prévues au deuxième alinéa de l'article L. 626-5 et à l'article L. 626-6. Ces délais et remises peuvent, le cas échéant, être réduits par le tribunal. Pour les autres créanciers, le tribunal impose des délais uniformes de paiement, sous réserve, en ce qui concerne les créances à terme, des délais supérieurs stipulés par les parties avant l'ouverture de la procédure qui peuvent excéder la durée du plan.
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Le premier paiement ne peut intervenir au-delà d'un délai d'un an.
Au-delà de la deuxième année, le montant de chacune des annuités prévues par le plan ne peut, sauf dans le cas d'une exploitation agricole, être inférieur à 5 % du passif admis.
Pour les contrats de crédit-bail, ces délais prennent fin si, avant leur expiration, le crédit preneur lève l'option d'achat. Celle-ci ne peut être levée si, sous déduction des remises acceptées, l'intégralité des sommes dues en vertu du contrat n'a pas été réglée.
Article L626-19
Le plan peut prévoir un choix pour les créanciers comportant un paiement dans des délais uniformes plus brefs mais assorti d'une réduction proportionnelle du montant de la créance.
La réduction de créance n'est définitivement acquise qu'après versement, au terme fixé, de la dernière échéance prévue par le plan pour son paiement.
Article L626-20
I. - Par dérogation aux dispositions des articles L. 626-18 et L. 626-19, ne peuvent faire l'objet de remises ou de délais :
1° Les créances garanties par le privilège établi aux articles L. 143-10, L. 143-11, L. 742-6 et L. 751-15 du code du travail ;
2° Les créances résultant d'un contrat de travail garanties par les privilèges prévus au 4° de l'article 2101 et au 2° de l'article 2104 du code civil lorsque le montant de celles-ci n'a pas été avancé par les institutions mentionnées à l'article L. 143-11-4 du code du travail ou n'a pas fait l'objet d'une subrogation.
II. - Dans la limite de 5 % du passif estimé, les créances les plus faibles prises dans l'ordre croissant de leur montant et sans que chacune puisse excéder un montant fixé par décret, sont remboursées sans remise ni délai. Cette disposition ne s'applique pas lorsque le montant des créances détenues par une même personne excède un dixième du pourcentage ci-dessus fixé ou lorsqu'une subrogation a été consentie ou un paiement effectué pour autrui.
Article L626-21
L'inscription d'une créance au plan et l'octroi de délais ou remises par le créancier ne préjugent pas l'admission définitive de la créance au passif.
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Les sommes à répartir correspondant aux créances litigieuses ne sont versées qu'à compter de l'admission définitive de ces créances au passif. Toutefois, la juridiction saisie du litige peut décider que le créancier participera à titre provisionnel, en tout ou partie, aux répartitions faites avant l'admission définitive.
Sauf disposition législative contraire, les paiements prévus par le plan sont portables.
Le tribunal fixe les modalités du paiement des dividendes arrêtés par le plan. Les dividendes sont payés entre les mains du commissaire à l'exécution du plan, qui procède à leur répartition.
Article L626-22
En cas de vente d'un bien grevé d'un privilège spécial, d'un gage, d'un nantissement ou d'une hypothèque, la quote-part du prix correspondant aux créances garanties par ces sûretés est versée en compte de dépôt à la Caisse des dépôts et consignations et les créanciers bénéficiaires de ces sûretés ou titulaires d'un privilège général sont payés sur le prix après le paiement des créances garanties par le privilège établi aux articles L. 143-10, L. 143-11, L. 742-6 et L. 751-15 du code du travail.
Ils reçoivent les dividendes à échoir d'après le plan, réduits en fonction du paiement anticipé, suivant l'ordre de préférence existant entre eux.
Si un bien est grevé d'un privilège, d'un gage, d'un nantissement ou d'une hypothèque, une autre garantie peut lui être substituée en cas de besoin, si elle présente des avantages équivalents. En l'absence d'accord, le tribunal peut ordonner cette substitution.
Article L626-23
En cas de cession partielle d'actifs, le prix est versé au débiteur sous réserve de l'application de l'article L. 626-22.
Article L626-24
Le tribunal peut charger l'administrateur d'effectuer les actes, nécessaires à la mise en oeuvre du plan, qu'il détermine.
Le mandataire judiciaire demeure en fonction pendant le temps nécessaire à la vérification et à l'établissement définitif de l'état des créances.
Lorsque la mission de l'administrateur et du mandataire judiciaire est achevée, il est mis fin à la procédure dans des conditions fixées par décret en Conseil d'Etat.
Article L626-25
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Le tribunal nomme, pour la durée fixée à l'article L. 626-12, l'administrateur ou le mandataire judiciaire en qualité de commissaire chargé de veiller à l'exécution du plan. Le tribunal peut, en cas de nécessité, nommer plusieurs commissaires.
Les actions introduites avant le jugement qui arrête le plan et auxquelles l'administrateur ou le mandataire judiciaire est partie sont poursuivies par le commissaire à l'exécution du plan ou, si celui-ci n'est plus en fonction, par un mandataire de justice désigné spécialement à cet effet par le tribunal.
Le commissaire à l'exécution du plan est également habilité à engager des actions dans l'intérêt collectif des créanciers.
Le commissaire à l'exécution du plan peut se faire communiquer tous les documents et informations utiles à sa mission.
Il rend compte au président du tribunal et au ministère public du défaut d'exécution du plan. Il en informe le comité d'entreprise ou, à défaut, les délégués du personnel.
Toute somme perçue par le commissaire à l'exécution du plan est immédiatement versée en compte de dépôt à la Caisse des dépôts et consignations. En cas de retard, le commissaire à l'exécution du plan doit, pour les sommes qu'il n'a pas versées, un intérêt dont le taux est égal au taux de l'intérêt légal majoré de cinq points.
Le commissaire à l'exécution du plan peut être remplacé par le tribunal, soit d'office, soit à la demande du ministère public. Lorsque le remplacement est demandé par le commissaire à l'exécution du plan, le président du tribunal statue par ordonnance.
Article L626-26
Une modification substantielle dans les objectifs ou les moyens du plan ne peut être décidée que par le tribunal, à la demande du débiteur et sur le rapport du commissaire à l'exécution du plan.
L'article L. 626-6 est applicable.
Le tribunal statue après avoir recueilli l'avis du ministère public et avoir entendu ou dûment appelé le débiteur, le commissaire à l'exécution du plan, les contrôleurs, les représentants du comité d'entreprise ou, à défaut, des délégués du personnel et toute personne intéressée.
Article L626-27
I.-En cas de défaut de paiement des dividendes par le débiteur, le commissaire à l'exécution du plan procède à leur recouvrement conformément aux dispositions arrêtées. Il y est seul habilité. Le tribunal qui a arrêté le plan peut, après avis du ministère public, en décider la résolution si le débiteur n'exécute pas ses engagements dans les délais fixés par le plan. Lorsque la cessation des paiements du débiteur est constatée au cours de l'exécution du plan, le tribunal qui a arrêté ce dernier décide, après avis du ministère public, sa résolution et ouvre une procédure de redressement judiciaire ou, si le redressement est manifestement impossible, une procédure de liquidation judiciaire. Le jugement qui prononce la résolution du plan met fin aux opérations et à la procédure
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lorsque celle-ci est toujours en cours. Sous réserve des dispositions du deuxième alinéa de l'article L. 626-19, il fait recouvrer aux créanciers l'intégralité de leurs créances et sûretés, déduction faite des sommes perçues, et emporte déchéance de tout délai de paiement accordé.
II.-Dans les cas mentionnés aux deuxième et troisième alinéas du I, le tribunal est saisi par un créancier, le commissaire à l'exécution du plan ou le ministère public. Il peut également se saisir d'office.
III.-Après résolution du plan et ouverture de la nouvelle procédure, les créanciers soumis à ce plan sont dispensés de déclarer leurs créances et sûretés. Les créances inscrites à ce plan sont admises de plein droit, déduction faite des sommes déjà perçues.
Article L626-28
Quand il est établi que les engagements énoncés dans le plan ou décidés par le tribunal ont été tenus, celui-ci, à la requête du commissaire à l'exécution du plan, du débiteur ou de tout intéressé, constate que l'exécution du plan est achevée.
Section 3 : Des comités de créanciers.
Article L626-29
Les débiteurs dont les comptes ont été certifiés par un commissaire aux comptes ou établis par un expert-comptable et dont le nombre de salariés ou le chiffre d'affaires sont supérieurs à des seuils fixés par décret en Conseil d'Etat sont soumis aux dispositions de la présente section. Les autres dispositions du présent chapitre qui ne lui sont pas contraires sont également applicables.
A la demande du débiteur ou de l'administrateur, le juge-commissaire peut autoriser qu'il en soit également fait application en deçà de ce seuil.
Article L626-30
Les établissements de crédit et ceux assimilés, tels que définis par décret en Conseil d'Etat ainsi que les principaux fournisseurs de biens ou de services, sont constitués en deux comités de créanciers par l'administrateur judiciaire. La composition des comités est déterminée au vu des créances nées antérieurement au jugement d'ouverture de la procédure. Les établissements de crédit et ceux assimilés, ainsi que tous les titulaires d'une créance acquise auprès de ceux-ci ou d'un fournisseur de biens ou de services, sont membres de droit du comité des établissements de crédit. A l'exclusion des collectivités territoriales et de leurs établissements publics, chaque fournisseur de biens ou de services est membre de droit du comité des principaux fournisseurs lorsque sa créance représente plus de 3 % du total des créances des fournisseurs. Les autres fournisseurs, sollicités par l'administrateur, peuvent en être membres. Pour l'application des dispositions qui précèdent aux créanciers bénéficiaires d'une fiducie constituée à titre de garantie par le débiteur, sont seules prises en compte, lorsqu'elles existent, celles de leurs créances non assorties d'une telle sûreté.
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Article L626-30-1
L'obligation ou, le cas échéant, la faculté de faire partie d'un comité constitue un accessoire de la créance née antérieurement au jugement d'ouverture de la procédure et se transmet de plein droit à ses titulaires successifs nonobstant toute clause contraire.
L'appartenance au comité des établissements de crédit ou au comité des principaux fournisseurs de biens ou de services est déterminée conformément aux deuxième et troisième alinéas de l'article L. 626-30.
Le titulaire de la créance transférée n'est informé des propositions du débiteur et admis à exprimer un vote qu'à compter du jour où le transfert a été porté à la connaissance de l'administrateur selon des modalités prévues par décret en Conseil d'Etat.
Le créancier dont la créance est éteinte ou transmise perd la qualité de membre.
Article L626-30-2
Le débiteur, avec le concours de l'administrateur, présente aux comités de créanciers des propositions en vue d'élaborer le projet de plan mentionné à l'article L. 626-2. Tout créancier membre d'un comité peut également soumettre de telles propositions au débiteur et à l'administrateur.
Le projet de plan proposé aux comités n'est soumis ni aux dispositions de l'article L. 626-12 ni à celles des deuxième et troisième alinéas de l'article L. 626-18. Il peut notamment prévoir des délais de paiement, des remises et, lorsque le débiteur est une société par actions dont tous les actionnaires ne supportent les pertes qu'à concurrence de leurs apports, des conversions de créances en titres donnant ou pouvant donner accès au capital. Il peut établir un traitement différencié entre les créanciers si les différences de situation le justifient.
Après discussion avec le débiteur et l'administrateur, les comités se prononcent sur ce projet, le cas échéant modifié, dans un délai de vingt à trente jours suivant la transmission des propositions du débiteur.A la demande du débiteur ou de l'administrateur, le juge-commissaire peut augmenter ou réduire ce délai, qui ne peut toutefois être inférieur à quinze jours.
La décision est prise par chaque comité à la majorité des deux tiers du montant des créances détenues par les membres ayant exprimé un vote, tel qu'il a été indiqué par le débiteur et certifié par son ou ses commissaire aux comptes ou, lorsqu'il n'en a pas été désigné, établi par son expert-comptable. Pour les créanciers bénéficiaires d'une fiducie constituée à titre de garantie par le débiteur, sont seuls pris en compte les montants de leurs créances non assorties d'une telle sûreté.
Article L626-31
Lorsque le projet de plan a été adopté par chacun des comités conformément aux dispositions de l'article L. 626-30-2 et, le cas échéant, par l'assemblée des obligataires dans les conditions prévues
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par l'article L. 626-32, le tribunal s'assure que les intérêts de tous les créanciers sont suffisamment protégés et, s'il y a lieu, que l'approbation de l'assemblée ou des assemblées mentionnées à l'article L. 626-3 a été obtenue dans les conditions prévues audit article. Dans ce cas, le tribunal arrête le plan conformément au projet adopté et selon les modalités prévues à la section 2 du présent chapitre. Sa décision rend applicables à tous leurs membres les propositions acceptées par chacun des comités.
Par dérogation aux dispositions de l'article L. 626-26, une modification substantielle dans les objectifs ou les moyens du plan arrêté par le tribunal en application du premier alinéa ne peut intervenir que selon les modalités prévues par la présente section.
Article L626-32
Lorsqu'il existe des obligataires, une assemblée générale constituée de l'ensemble des créanciers titulaires d'obligations émises en France ou à l'étranger est convoquée dans des conditions définies par décret en Conseil d'Etat, afin de délibérer sur le projet de plan adopté par les comités de créanciers. La délibération peut notamment porter sur des délais de paiement, un abandon total ou partiel des créances obligataires et, lorsque le débiteur est une société par actions dont tous les actionnaires ne supportent les pertes qu'à concurrence de leurs apports, des conversions de créances en titres donnant ou pouvant donner accès au capital. Le projet de plan peut établir un traitement différencié entre les créanciers obligataires si les différences de situation le justifient. La décision est prise à la majorité des deux tiers du montant des créances obligataires détenues par les porteurs ayant exprimé leur vote, nonobstant toute clause contraire et indépendamment de la loi applicable au contrat d'émission.
Article L626-33
Les créanciers qui ne sont pas membres des comités institués en application de l'article L. 626-30, et pour leurs créances assorties de cette sûreté, les créanciers bénéficiaires d'une fiducie constituée à titre de garantie par le débiteur sont consultés selon les dispositions des articles L. 626-5 à L. 626-6.
Les dispositions du plan relatives aux créanciers qui ne sont pas membres des comités institués en application de l'article L. 626-30 sont arrêtées selon les dispositions des articles L. 626-12 et L. 626-18 à L. 626-20.
Article L626-34
Lorsque l'un ou l'autre des comités et, le cas échéant, l'assemblée des obligataires ne se sont pas prononcés sur un projet de plan dans un délai de six mois à compter du jugement d'ouverture de la procédure, que l'un d'eux a refusé les propositions faites par le débiteur ou que le tribunal n'a pas arrêté le plan en application de l'article L. 626-31, la procédure est reprise pour préparer un plan dans les conditions prévues aux articles L. 626-5 à L. 626-7 afin qu'il soit arrêté selon les dispositions des articles L. 626-12 et L. 626-18 à L. 626-20.
Article L626-34-1
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Le tribunal statue dans un même jugement sur les contestations relatives à l'application des articles L. 626-30 à L. 626-32 et sur l'arrêté ou la modification du plan.
Les créanciers ne peuvent former une contestation qu'à l'encontre de la décision du comité ou de l'assemblée dont ils sont membres.
Article L626-35
Un décret en Conseil d'Etat détermine les conditions d'application de la présente section.
Chapitre VII : Dispositions particulières en l'absence d'administrateur judiciaire.
Article L627-1
Les dispositions du présent chapitre sont applicables lorsqu'il n'a pas été désigné d'administrateur judiciaire en application du quatrième alinéa de l'article L. 621-4. Les autres dispositions du présent titre sont applicables dans la mesure où elles ne sont pas contraires à celles du présent chapitre.
Article L627-2
Le débiteur exerce, après avis conforme du mandataire judiciaire, la faculté ouverte à l'administrateur de poursuivre des contrats en cours et de demander la résiliation du bail en application des articles L. 622-13 et L. 622-14. En cas de désaccord, le juge-commissaire est saisi par tout intéressé.
Article L627-3
Pendant la période d'observation, le débiteur établit un projet de plan avec l'assistance éventuelle d'un expert nommé par le tribunal. Il n'est pas dressé de bilan économique, social et environnemental.
Le débiteur communique au mandataire judiciaire et au juge-commissaire les propositions de règlement du passif prévues à l'article L. 626-5 et procède aux informations, consultations et communications prévues à l'article L. 626-8.
Pour l'application de l'article L. 626-3, l'assemblée générale extraordinaire ou l'assemblée des associés ainsi que, lorsque leur approbation est nécessaire, les assemblées spéciales mentionnées
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aux articles L. 225-99 et L. 228-35-6 ou les assemblées générales des masses visées à l'article L. 228-103 sont convoquées dans des conditions fixées par décret en Conseil d'Etat. Le juge-commissaire fixe le montant de l'augmentation du capital proposée à l'assemblée pour reconstituer les capitaux propres.
Article L627-4
Après le dépôt au greffe du projet de plan par le débiteur, le tribunal statue au vu du rapport du juge-commissaire.
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Partie législative
LIVRE VI : Des difficultés des entreprises.
Titre III : Du redressement judiciaire.
Chapitre Ier : De l'ouverture et du déroulement du redressement judiciaire.
Article L631-1
Il est institué une procédure de redressement judiciaire ouverte à tout débiteur mentionné aux articles L. 631-2 ou L. 631-3 qui, dans l'impossibilité de faire face au passif exigible avec son actif disponible, est en cessation des paiements. Le débiteur qui établit que les réserves de crédit ou les moratoires dont il bénéficie de la part de ses créanciers lui permettent de faire face au passif exigible avec son actif disponible n'est pas en cessation des paiements.
La procédure de redressement judiciaire est destinée à permettre la poursuite de l'activité de l'entreprise, le maintien de l'emploi et l'apurement du passif. Elle donne lieu à un plan arrêté par jugement à l'issue d'une période d'observation et, le cas échéant, à la constitution de deux comités de créanciers, conformément aux dispositions des articles L. 626-29 et L. 626-30.
Article L631-2
La procédure de redressement judiciaire est applicable à toute personne exerçant une activité commerciale ou artisanale, à tout agriculteur, à toute autre personne physique exerçant une activité professionnelle indépendante y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, ainsi qu'à toute personne morale de droit privé.
Il ne peut être ouvert de nouvelle procédure de redressement judiciaire à l'égard d'une personne soumise à une telle procédure, à une procédure de sauvegarde ou à une procédure de liquidation judiciaire, tant qu'il n'a pas été mis fin aux opérations du plan qui en résulte ou que la procédure de liquidation n'a pas été clôturée.
Article L631-3
La procédure de redressement judiciaire est également applicable aux personnes mentionnées au
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premier alinéa de l'article L. 631-2 après la cessation de leur activité professionnelle si tout ou partie de leur passif provient de cette dernière.
Lorsqu'une personne exerçant une activité commerciale ou artisanale, un agriculteur ou toute autre personne physique exerçant une activité professionnelle indépendante, y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, est décédé en cessation des paiements, le tribunal peut être saisi, dans le délai d'un an à compter de la date du décès, sur l'assignation d'un créancier, quelle que soit la nature de sa créance, ou sur requête du ministère public. Le tribunal peut également se saisir d'office dans le même délai et peut être saisi sans condition de délai par tout héritier du débiteur.
Article L631-4
L'ouverture de cette procédure doit être demandée par le débiteur au plus tard dans les quarante-cinq jours qui suivent la cessation des paiements s'il n'a pas, dans ce délai, demandé l'ouverture d'une procédure de conciliation.
En cas d'échec de la procédure de conciliation, lorsqu'il ressort du rapport du conciliateur que le débiteur est en cessation des paiements, le tribunal, d'office, se saisit afin de statuer sur l'ouverture d'une procédure de redressement judiciaire.
Article L631-5
Lorsqu'il n'y a pas de procédure de conciliation en cours, le tribunal peut également se saisir d'office ou être saisi sur requête du ministère public aux fins d'ouverture de la procédure de redressement judiciaire.
Sous cette même réserve, la procédure peut aussi être ouverte sur l'assignation d'un créancier, quelle que soit la nature de sa créance. Toutefois, lorsque le débiteur a cessé son activité professionnelle, cette assignation doit intervenir dans le délai d'un an à compter de :
1° La radiation du registre du commerce et des sociétés.S'il s'agit d'une personne morale, le délai court à compter de la radiation consécutive à la publication de la clôture des opérations de liquidation ;
2° La cessation de l'activité, s'il s'agit d'une personne exerçant une activité artisanale, d'un agriculteur ou d'une personne physique exerçant une activité professionnelle indépendante, y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé ;
3° La publication de l'achèvement de la liquidation, s'il s'agit d'une personne morale non soumise à l'immatriculation.
En outre, la procédure ne peut être ouverte à l'égard d'un débiteur exerçant une activité agricole qui n'est pas constitué sous la forme d'une société commerciale que si le président du tribunal de grande
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instance a été saisi, préalablement à l'assignation, d'une demande tendant à la désignation d'un conciliateur présentée en application de l'article L. 351-2 du code rural.
Article L631-6
Le comité d'entreprise ou, à défaut, les délégués du personnel peuvent communiquer au président du tribunal ou au ministère public tout fait révélant la cessation des paiements du débiteur.
Article L631-7
Les articles L. 621-1, L. 621-2 et L. 621-3 sont applicables à la procédure de redressement judiciaire.
Article L631-8
Le tribunal fixe la date de cessation des paiements.A défaut de détermination de cette date, la cessation des paiements est réputée être intervenue à la date du jugement d'ouverture de la procédure.
Elle peut être reportée une ou plusieurs fois, sans pouvoir être antérieure de plus de dix-huit mois à la date du jugement d'ouverture de la procédure. Sauf cas de fraude, elle ne peut être reportée à une date antérieure à la décision définitive ayant homologué un accord amiable en application du II de l'article L. 611-8.
Le tribunal est saisi par l'administrateur, le mandataire judiciaire ou le ministère public. Il se prononce après avoir entendu ou dûment appelé le débiteur.
La demande de modification de date doit être présentée au tribunal dans le délai d'un an à compter du jugement d'ouverture de la procédure. Lorsqu'il a été fait application de l'article L. 621-12, le jugement d'ouverture mentionné aux premier et deuxième alinéas est celui de la procédure de sauvegarde et le point de départ du délai mentionné au quatrième alinéa est le jour du jugement ayant converti la procédure de sauvegarde.
Article L631-9
L'article L. 621-4, à l'exception de la première phrase du cinquième alinéa et du sixième alinéa, ainsi que les articles L. 621-5 à L. 621-11 sont applicables à la procédure de redressement judiciaire. Le tribunal peut se saisir d'office aux fins mentionnées aux troisième et quatrième alinéas de l'article L. 621-4.
Le ministère public peut proposer des mandataires de justice à la désignation du tribunal. Le rejet de cette proposition doit être spécialement motivé.
Aux fins de réaliser l'inventaire prévu à l'article L. 622-6 et la prisée des actifs du débiteur, le
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tribunal désigne, en considération de leurs attributions respectives telles qu'elles résultent des dispositions qui leur sont applicables, un commissaire-priseur judiciaire, un huissier de justice, un notaire ou un courtier en marchandises assermenté.
Article L631-10
A compter du jugement d'ouverture, les parts sociales, titres de capital ou valeurs mobilières donnant accès au capital de la personne morale qui a fait l'objet du jugement d'ouverture et qui sont détenus, directement ou indirectement par les dirigeants de droit ou de fait, rémunérés ou non, ne peuvent être cédés, à peine de nullité, que dans les conditions fixées par le tribunal.
Les titres de capital ou valeurs mobilières donnant accès au capital sont virés à un compte spécial bloqué, ouvert par l'administrateur au nom du titulaire et tenu par la société ou l'intermédiaire financier selon le cas. Aucun mouvement ne peut être effectué sur ce compte sans l'autorisation du juge-commissaire.
L'administrateur fait, le cas échéant, mentionner sur les registres de la personne morale l'incessibilité des parts détenues directement ou indirectement par les dirigeants.
Article L631-11
Le juge-commissaire fixe la rémunération afférente aux fonctions exercées par le débiteur s'il est une personne physique ou les dirigeants de la personne morale.
En l'absence de rémunération, les personnes mentionnées à l'alinéa précédent peuvent obtenir sur l'actif, pour eux et leur famille, des subsides fixés par le juge-commissaire.
Article L631-12
Outre les pouvoirs qui leur sont conférés par le présent titre, la mission du ou des administrateurs est fixée par le tribunal.
Ce dernier les charge ensemble ou séparément d'assister le débiteur pour tous les actes relatifs à la gestion ou certains d'entre eux, ou d'assurer seuls, entièrement ou en partie, l'administration de l'entreprise. Lorsque le ou les administrateurs sont chargés d'assurer seuls et entièrement l'administration de l'entreprise et que chacun des seuils mentionnés au quatrième alinéa de l'article L. 621-4 est atteint, le tribunal désigne un ou plusieurs experts aux fins de les assister dans leur mission de gestion. Dans les autres cas, il a la faculté de les désigner. Le président du tribunal arrête la rémunération de ces experts, mise à la charge de la procédure.
Dans sa mission, l'administrateur est tenu au respect des obligations légales et conventionnelles incombant au débiteur.
A tout moment, le tribunal peut modifier la mission de l'administrateur sur la demande de celui-ci, du mandataire judiciaire, du ministère public ou d'office.
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L'administrateur fait fonctionner, sous sa signature, les comptes bancaires ou postaux dont le débiteur est titulaire quand ce dernier a fait l'objet des interdictions prévues aux articles L. 131-72 ou L. 163-6 du code monétaire et financier.
Article L631-13
Dès l'ouverture de la procédure, les tiers sont admis à soumettre à l'administrateur des offres tendant au maintien de l'activité de l'entreprise, par une cession totale ou partielle de celle-ci selon les dispositions de la section 1 du chapitre II du titre IV.
Article L631-14
Les articles L. 622-3 à L. 622-9, à l'exception de l'article L. 622-6-1, et L. 622-13 à L. 622-33 sont applicables à la procédure de redressement judiciaire, sous réserve des dispositions qui suivent.
Il est réalisé une prisée des actifs du débiteur concomitamment à l'inventaire prévu à l'article L. 622-6.
Lorsque l'administrateur a une mission de représentation, il exerce les prérogatives conférées au débiteur par le II de l'article L. 622-7 et par le troisième alinéa de l'article L. 622-8. En cas de mission d'assistance, il les exerce concurremment avec le débiteur.
Lorsque la procédure de redressement judiciaire a été ouverte en application du troisième alinéa de l'article L. 626-27 et que le débiteur a transféré des biens ou droits dans un patrimoine fiduciaire avant l'ouverture de la procédure de sauvegarde ayant donné lieu au plan résolu, la convention en exécution de laquelle celui-ci conserve l'usage ou la jouissance de ces biens ou droits n'est pas soumise aux dispositions de l'article L. 622-13 et les dispositions de l'article L. 622-23-1 ne sont pas applicables.
Pour l'application de l'article L. 622-23, l'administrateur doit également être mis en cause lorsqu'il a une mission de représentation.
Les personnes coobligées ou ayant consenti une sûreté personnelle ou ayant affecté ou cédé un bien en garantie ne bénéficient pas de l'inopposabilité prévue au deuxième alinéa de l'article L. 622-26 et ne peuvent se prévaloir des dispositions prévues au premier alinéa de l'article L. 622-28.
Article L631-15
I.-Au plus tard au terme d'un délai de deux mois à compter du jugement d'ouverture, le tribunal ordonne la poursuite de la période d'observation s'il lui apparaît que le débiteur dispose à cette fin de capacités de financement suffisantes. Toutefois, lorsque le débiteur exerce une activité agricole, ce délai peut être modifié en fonction de l'année culturale en cours et des usages spécifiques aux productions de cette exploitation.
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Le tribunal se prononce au vu d'un rapport, établi par l'administrateur ou, lorsqu'il n'en a pas été désigné, par le débiteur.
II.-A tout moment de la période d'observation, le tribunal, à la demande du débiteur, de l'administrateur, du mandataire judiciaire, d'un contrôleur, du ministère public ou d'office, peut ordonner la cessation partielle de l'activité ou prononce la liquidation judiciaire si le redressement est manifestement impossible.
Il statue après avoir entendu ou dûment appelé le débiteur, l'administrateur, le mandataire judiciaire, les contrôleurs et les représentants du comité d'entreprise ou, à défaut, des délégués du personnel, et avoir recueilli l'avis du ministère public.
Lorsque le tribunal prononce la liquidation, il met fin à la période d'observation et, sous réserve des dispositions de l'article L. 641-10, à la mission de l'administrateur.
Article L631-16
S'il apparaît, au cours de la période d'observation, que le débiteur dispose des sommes suffisantes pour désintéresser les créanciers et acquitter les frais et les dettes afférents à la procédure, le tribunal peut mettre fin à celle-ci.
Il statue à la demande du débiteur, dans les conditions prévues au deuxième alinéa du II de l'article L. 631-15.
Article L631-17
Lorsque des licenciements pour motif économique présentent un caractère urgent, inévitable et indispensable pendant la période d'observation, l'administrateur peut être autorisé par le juge-commissaire à procéder à ces licenciements.
Préalablement à la saisine du juge-commissaire, l'administrateur consulte le comité d'entreprise ou, à défaut, les délégués du personnel dans les conditions prévues à l'article L. 321-9 du code du travail et informe l'autorité administrative compétente mentionnée à l'article L. 321-8 du même code. Il joint, à l'appui de la demande qu'il adresse au juge-commissaire, l'avis recueilli et les justifications de ses diligences en vue de faciliter l'indemnisation et le reclassement des salariés.
Article L631-18
Les dispositions des chapitres III, IV et V du titre II du présent livre sont applicables à la procédure de redressement judiciaire, sous réserve des dispositions qui suivent.
Pour l'application du quatrième alinéa de l'article L. 623-3, la consultation porte sur les mesures que l'administrateur envisage de proposer et le débiteur est également consulté.
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Le recours prévu au premier alinéa de l'article L. 624-3 est également ouvert à l'administrateur, lorsque celui-ci a pour mission d'assurer l'administration de l'entreprise.
Pour l'application de l'article L. 625-1, le mandataire judiciaire cité devant le conseil de prud'hommes ou, à défaut, le demandeur appelle devant la juridiction prud'homale les institutions mentionnées à l'article L. 3253-14 du code du travail.L'administrateur est seul mis en cause lorsqu'il a pour mission d'assurer l'administration de l'entreprise.
Pour l'application de l'article L. 625-3, les institutions mentionnées à l'article L. 3253-14 du code du travail sont mises en cause par le mandataire judiciaire ou, à défaut, par les salariés requérants, dans les dix jours du jugement d'ouverture de la procédure de redressement judiciaire ou du jugement convertissant une procédure de sauvegarde en procédure de redressement. Les instances en cours devant la juridiction prud'homale à la date du jugement d'ouverture sont poursuivies en présence du mandataire judiciaire et de l'administrateur ou ceux-ci dûment appelés.
Pour l'application de l'article L. 625-4, outre le mandataire judiciaire, l'administrateur est seul mis en cause lorsqu'il a pour mission d'assurer l'administration de l'entreprise.
L'administrateur est seul tenu des obligations prévues à l'article L. 625-8 lorsqu'il a pour mission d'assurer l'administration de l'entreprise.
Article L631-19
I.-Les dispositions du chapitre VI du titre II sont applicables au plan de redressement, sous réserve des dispositions qui suivent.
Il incombe à l'administrateur, avec le concours du débiteur, d'élaborer le projet de plan et, le cas échéant, de présenter aux comités de créanciers les propositions prévues au premier alinéa de l'article L. 626-30-2. Pour l'application du premier alinéa de l'article L. 626-8, l'information et la consultation portent sur les mesures que l'administrateur envisage de proposer.
II.-Lorsque le plan prévoit des licenciements pour motif économique, il ne peut être arrêté par le tribunal qu'après que le comité d'entreprise ou, à défaut, les délégués du personnel ont été consultés dans les conditions prévues à l'article L. 321-9 du code du travail et que l'autorité administrative compétente mentionnée à l'article L. 321-8 du même code a été informée.
Le plan précise notamment les licenciements qui doivent intervenir dans le délai d'un mois après le jugement. Dans ce délai, ces licenciements interviennent sur simple notification de l'administrateur, sous réserve des droits de préavis prévus par la loi, les conventions ou accords collectifs du travail.
Lorsque le licenciement concerne un salarié bénéficiant d'une protection particulière en matière de licenciement, ce délai d'un mois après le jugement est celui dans lequel l'intention de rompre doit être manifestée.
Article L631-19-1
Lorsque le redressement de l'entreprise le requiert, le tribunal, sur la demande du ministère public, peut subordonner l'adoption du plan au remplacement d'un ou plusieurs dirigeants de l'entreprise.
A cette fin et dans les mêmes conditions, le tribunal peut prononcer l'incessibilité des parts sociales,
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titres de capital ou valeurs mobilières donnant accès au capital, détenus par un ou plusieurs dirigeants de droit ou de fait et décider que le droit de vote y attaché sera exercé, pour une durée qu'il fixe, par un mandataire de justice désigné à cet effet. De même, il peut ordonner la cession de ces parts sociales, titres de capital ou valeurs mobilières donnant accès au capital détenu par ces mêmes personnes, le prix de cession étant fixé à dire d'expert.
Le tribunal statue après avoir entendu ou dûment appelé les dirigeants et les représentants du comité d'entreprise ou, à défaut, des délégués du personnel.
Les dispositions du présent article ne sont pas applicables lorsque le débiteur exerce une activité professionnelle libérale soumise à un statut législatif ou réglementaire.
Article L631-20
Par dérogation aux dispositions de l'article L. 626-11, les coobligés et les personnes ayant consenti une sûreté personnelle ou ayant affecté ou cédé un bien en garantie ne peuvent se prévaloir des dispositions du plan.
Article L631-20-1
Par dérogation aux dispositions du troisième alinéa de l'article L. 626-27, lorsque la cessation des paiements du débiteur est constatée au cours de l'exécution du plan, le tribunal qui a arrêté ce dernier décide, après avis du ministère public, sa résolution et ouvre une procédure de liquidation judiciaire.
Article L631-21
Les dispositions du chapitre VII du titre II sont applicables au plan de redressement.
Pendant la période d'observation, l'activité est poursuivie par le débiteur qui exerce les prérogatives dévolues à l'administrateur par l'article L. 631-17 et procède aux notifications prévues au second alinéa du II de l'article L. 631-19.
Le mandataire judiciaire exerce les fonctions dévolues à l'administrateur par les deuxième et troisième alinéas de l'article L. 631-10.
Article L631-21-1
Lorsque le tribunal estime que la cession totale ou partielle de l'entreprise est envisageable, il désigne un administrateur, s'il n'en a pas déjà été nommé un, aux fins de procéder à tous les actes nécessaires à la préparation de cette cession et, le cas échéant, à sa réalisation.
Article L631-22
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A la demande de l'administrateur, le tribunal peut ordonner la cession totale ou partielle de l'entreprise si le débiteur est dans l'impossibilité d'en assurer lui-même le redressement. Les dispositions de la section 1 du chapitre II du titre IV, à l'exception du I de l'article L. 642-2, et l'article L. 642-22 sont applicables à cette cession. Le mandataire judiciaire exerce les missions dévolues au liquidateur.
L'administrateur reste en fonction pour passer tous les actes nécessaires à la réalisation de la cession.
Lorsque la cession totale ou partielle a été ordonnée en application du premier alinéa, la procédure est poursuivie dans les limites prévues par l'article L. 621-3. Si l'arrêté d'un plan de redressement ne peut être obtenu, le tribunal prononce la liquidation judiciaire et met fin à la période d'observation ainsi qu'à la mission de l'administrateur, sous réserve des dispositions de l'article L. 641-10. Les biens non compris dans le plan de cession sont alors cédés dans les conditions de la section 2 du chapitre II du livre IV.
Chapitre II : De la nullité de certains actes.
Article L632-1
I. - Sont nuls, lorsqu'ils sont intervenus depuis la date de cessation des paiements, les actes suivants :
1° Tous les actes à titre gratuit translatifs de propriété mobilière ou immobilière ;
2° Tout contrat commutatif dans lequel les obligations du débiteur excèdent notablement celles de l'autre partie ;
3° Tout paiement, quel qu'en ait été le mode, pour dettes non échues au jour du paiement ;
4° Tout paiement pour dettes échues, fait autrement qu'en espèces, effets de commerce, virements, bordereaux de cession visés par la loi n° 81-1 du 2 janvier 1981 facilitant le crédit aux entreprises ou tout autre mode de paiement communément admis dans les relations d'affaires ;
5° Tout dépôt et toute consignation de sommes effectués en application de l'article 2075-1 du code civil (1), à défaut d'une décision de justice ayant acquis force de chose jugée ;
6° Toute hypothèque conventionnelle, toute hypothèque judiciaire ainsi que l'hypothèque légale des époux et tout droit de nantissement ou de gage constitués sur les biens du débiteur pour dettes antérieurement contractées ;
7° Toute mesure conservatoire, à moins que l'inscription ou l'acte de saisie ne soit antérieur à la date de cessation de paiement ;
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8° Toute autorisation et levée d'options définies aux articles L. 225-177 et suivants du présent code ;
9° Tout transfert de biens ou de droits dans un patrimoine fiduciaire, à moins que ce transfert ne soit intervenu à titre de garantie d'une dette concomitamment contractée ;
10° Tout avenant à un contrat de fiducie affectant des droits ou biens déjà transférés dans un patrimoine fiduciaire à la garantie de dettes contractées antérieurement à cet avenant.
II. - Le tribunal peut, en outre, annuler les actes à titre gratuit visés au 1° du I faits dans les six mois précédant la date de cessation des paiements.
Article L632-2
Les paiements pour dettes échues effectués à compter de la date de cessation des paiements et les actes à titre onéreux accomplis à compter de cette même date peuvent être annulés si ceux qui ont traité avec le débiteur ont eu connaissance de la cessation des paiements.
Tout avis à tiers détenteur, toute saisie attribution ou toute opposition peut également être annulé lorsqu'il a été délivré ou pratiqué par un créancier à compter de la date de cessation des paiements et en connaissance de celle-ci.
Article L632-3
Les dispositions des articles L. 632-1 et L. 632-2 ne portent pas atteinte à la validité du paiement d'une lettre de change, d'un billet à ordre ou d'un chèque.
Toutefois, l'administrateur ou le mandataire judiciaire peut exercer une action en rapport contre le tireur de la lettre de change ou, dans le cas de tirage pour compte, contre le donneur d'ordre, ainsi que contre le bénéficiaire d'un chèque et le premier endosseur d'un billet à ordre, s'il est établi qu'ils avaient connaissance de la cessation des paiements.
Article L632-4
L'action en nullité est exercée par l'administrateur, le mandataire judiciaire, le commissaire à l'exécution du plan ou le ministère public. Elle a pour effet de reconstituer l'actif du débiteur.
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Partie législative
LIVRE VI : Des difficultés des entreprises.
TITRE IV : De la liquidation judiciaire.
Chapitre préliminaire : Des conditions d'ouverture de la liquidation judiciaire.
Article L640-1
Il est institué une procédure de liquidation judiciaire ouverte à tout débiteur mentionné à l'article L. 640-2 en cessation des paiements et dont le redressement est manifestement impossible.
La procédure de liquidation judiciaire est destinée à mettre fin à l'activité de l'entreprise ou à réaliser le patrimoine du débiteur par une cession globale ou séparée de ses droits et de ses biens.
Article L640-2
La procédure de liquidation judiciaire est applicable à toute personne exerçant une activité commerciale ou artisanale, à tout agriculteur, à toute autre personne physique exerçant une activité professionnelle indépendante y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, ainsi qu'à toute personne morale de droit privé.
Il ne peut être ouvert de nouvelle procédure de liquidation judiciaire à l'égard d'une personne soumise à une telle procédure tant que celle-ci n'a pas été clôturée ou à une procédure de sauvegarde ou de redressement judiciaire, tant qu'il n'a pas été mis fin aux opérations du plan qui en résulte.
Article L640-3
La procédure de liquidation judiciaire est également ouverte aux personnes mentionnées au premier alinéa de l'article L. 640-2 après la cessation de leur activité professionnelle, si tout ou partie de leur passif provient de cette dernière.
Lorsqu'une personne exerçant une activité commerciale ou artisanale, un agriculteur ou toute autre personne physique exerçant une activité professionnelle indépendante, y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, est décédé en cessation des paiements, le tribunal peut être saisi, dans le délai d'un an à compter de la date du
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décès, sur l'assignation d'un créancier, quelle que soit la nature de sa créance, ou sur requête du ministère public. Le tribunal peut également se saisir d'office dans le même délai. Il peut être saisi sans condition de délai par tout héritier du débiteur.
Article L640-4
L'ouverture de cette procédure doit être demandée par le débiteur au plus tard dans les quarante-cinq jours qui suivent la cessation des paiements, s'il n'a pas dans ce délai demandé l'ouverture d'une procédure de conciliation.
En cas d'échec de la procédure de conciliation, si le tribunal, statuant en application du second alinéa de l'article L. 631-4, constate que les conditions mentionnées à l'article L. 640-1 sont réunies, il ouvre une procédure de liquidation judiciaire.
Article L640-5
Lorsqu'il n'y a pas de procédure de conciliation en cours, le tribunal peut également se saisir d'office ou être saisi sur requête du ministère public aux fins d'ouverture de la procédure de liquidation judiciaire.
Sous cette même réserve, la procédure peut aussi être ouverte sur l'assignation d'un créancier, quelle que soit la nature de sa créance. Toutefois, lorsque le débiteur a cessé son activité professionnelle, cette assignation doit intervenir dans le délai d'un an à compter de :
1° La radiation du registre du commerce et des sociétés. S'il s'agit d'une personne morale, le délai court à compter de la radiation consécutive à la publication de la clôture des opérations de liquidation ;
2° La cessation de l'activité, s'il s'agit d'une personne exerçant une activité artisanale, d'un agriculteur ou d'une personne physique exerçant une activité professionnelle indépendante, y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé ;
3° La publication de l'achèvement de la liquidation, s'il s'agit d'une personne morale non soumise à l'immatriculation.
En outre, la procédure ne peut être ouverte à l'égard d'un débiteur exerçant une activité agricole qui n'est pas constitué sous la forme d'une société commerciale que si le président du tribunal de grande instance a été saisi, préalablement à l'assignation, d'une demande tendant à la désignation d'un conciliateur présentée en application de l'article L. 351-2 du code rural.
Article L640-6
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Le comité d'entreprise ou, à défaut, les délégués du personnel peuvent communiquer au président du tribunal ou au ministère public tout fait révélant la cessation des paiements du débiteur.
Chapitre Ier : Du jugement de liquidation judiciaire.
Article L641-1
I.-Les articles L. 621-1 et L. 621-2 sont applicables à la procédure de liquidation judiciaire.
II.-Dans le jugement qui ouvre la liquidation judiciaire, le tribunal désigne le juge-commissaire. Il peut, en cas de nécessité, en désigner plusieurs. Dans le même jugement, sans préjudice de la possibilité de nommer un ou plusieurs experts en vue d'une mission qu'il détermine, le tribunal désigne, en qualité de liquidateur, un mandataire judiciaire inscrit ou une personne choisie sur le fondement du premier alinéa du II de l'article L. 812-2. Il peut, à la demande du ministère public ou d'office, en désigner plusieurs. Le ministère public peut proposer un liquidateur à la désignation du tribunal. Le rejet de cette proposition doit être spécialement motivé. Lorsque la procédure est ouverte à l'égard d'un débiteur qui bénéficie ou a bénéficié d'un mandat ad hoc ou d'une procédure de conciliation dans les dix-huit mois qui précèdent, le ministère public peut en outre s'opposer à ce que le mandataire ad hoc ou le conciliateur soit désigné en qualité de liquidateur. Un représentant des salariés est désigné dans les conditions prévues au deuxième alinéa de l'article L. 621-4 et à l'article L. 621-6. Il exerce la mission prévue à l'article L. 625-2. Les contrôleurs sont désignés et exercent leurs attributions dans les mêmes conditions que celles prévues au titre II. Aux fins de réaliser l'inventaire prévu par l'article L. 622-6 et la prisée de l'actif du débiteur, le tribunal désigne, en considération de leurs attributions respectives telles qu'elles résultent des dispositions qui leur sont applicables, un commissaire-priseur judiciaire, un huissier de justice, un notaire ou un courtier en marchandises assermenté.
III.-Lorsque la liquidation judiciaire est prononcée au cours de la période d'observation d'une procédure de sauvegarde ou de redressement judiciaire, le tribunal nomme le mandataire judiciaire en qualité de liquidateur. Toutefois, le tribunal peut, par décision motivée, à la demande de l'administrateur, d'un créancier, du débiteur ou du ministère public, désigner en qualité de liquidateur une autre personne dans les conditions prévues à l'article L. 812-2.
Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, la demande peut aussi être faite au tribunal par l'ordre professionnel ou l'autorité compétente dont, le cas échéant, il relève.
IV.-La date de cessation des paiements est fixée dans les conditions prévues à l'article L. 631-8.
Article L641-1-1
Le tribunal peut, soit d'office, soit sur proposition du juge-commissaire ou à la demande du ministère public, procéder au remplacement du liquidateur, de l'expert ou de l'administrateur s'il en a été désigné en application de l'article L. 641-10 ou encore adjoindre un ou plusieurs liquidateurs ou administrateurs à ceux déjà nommés.
Le liquidateur, l'administrateur ou un créancier nommé contrôleur peut demander au
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juge-commissaire de saisir à cette fin le tribunal.
Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, l'ordre professionnel ou l'autorité compétente dont, le cas échéant, il relève peut saisir le ministère public à cette même fin.
Le débiteur peut demander au juge-commissaire de saisir le tribunal aux fins de remplacer l'expert. Dans les mêmes conditions, tout créancier peut demander le remplacement du liquidateur.
Par dérogation aux alinéas qui précèdent, lorsque le liquidateur ou l'administrateur demande son remplacement, le président du tribunal, saisi à cette fin par le juge-commissaire, est compétent pour y procéder. Il statue par ordonnance.
Le comité d'entreprise ou, à défaut, les délégués du personnel ou, à défaut, les salariés de l'entreprise peuvent seuls procéder au remplacement du représentant des salariés.
Article L641-2
Il est fait application de la procédure simplifiée prévue au chapitre IV du présent titre si l'actif du débiteur ne comprend pas de bien immobilier et si le nombre de ses salariés au cours des six mois précédant l'ouverture de la procédure ainsi que son chiffre d'affaires hors taxes sont égaux ou inférieurs à des seuils fixés par décret.
Si le tribunal dispose des éléments lui permettant de vérifier que les conditions mentionnées au premier alinéa sont réunies, il statue sur cette application dans le jugement de liquidation judiciaire. Dans le cas contraire, le président du tribunal statue au vu d'un rapport sur la situation du débiteur établi par le liquidateur dans le mois de sa désignation.
Article L641-2-1
En l'absence de bien immobilier et si le nombre des salariés du débiteur ainsi que son chiffre d'affaires hors taxes sont supérieurs aux seuils fixés en application de l'article L. 641-2 sans excéder des seuils fixés par décret, la procédure simplifiée prévue au chapitre IV du présent titre peut être ordonnée.
Si la liquidation judiciaire est prononcée au cours d'une période d'observation, le tribunal statue sur cette application dans le jugement de liquidation judiciaire. Dans le cas contraire, la décision est prise par le président du tribunal au vu d'un rapport sur la situation du débiteur établi par le liquidateur dans le mois de sa désignation.
Article L641-3
Le jugement qui ouvre la liquidation judiciaire a les mêmes effets que ceux qui sont prévus en cas de sauvegarde par les premier et troisième alinéas du I et par le III de l'article L. 622-7, par les
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articles L. 622-21 et L. 622-22, par la première phrase de l'article L. 622-28 et par l'article L. 622-30.
Le juge-commissaire peut autoriser le liquidateur ou l'administrateur lorsqu'il en a été désigné à payer des créances antérieures au jugement, pour retirer le gage ou la chose légitimement retenue ou encore, lorsque le paiement à intervenir est d'un montant inférieur à la valeur vénale du bien objet du contrat, pour lever l'option d'achat d'un contrat de crédit-bail.
Lorsque la liquidation judiciaire est ouverte ou prononcée à l'égard d'une personne morale, les dispositions prévues en matière d'arrêté et d'approbation des comptes annuels ne sont plus applicables sauf, le cas échéant, pendant le maintien provisoire de l'activité autorisé par le tribunal.
Les créanciers déclarent leurs créances au liquidateur selon les modalités prévues aux articles L. 622-24 à L. 622-27 et L. 622-31 à L. 622-33.
Article L641-4
Le liquidateur procède aux opérations de liquidation en même temps qu'à la vérification des créances. Il peut introduire ou poursuivre les actions qui relèvent de la compétence du mandataire judiciaire.
Il n'est pas procédé à la vérification des créances chirographaires s'il apparaît que le produit de la réalisation de l'actif sera entièrement absorbé par les frais de justice et les créances privilégiées, à moins que, s'agissant d'une personne morale, il n'y ait lieu de mettre à la charge des dirigeants sociaux de droit ou de fait tout ou partie du passif conformément à l'article L. 651-2.
Le liquidateur exerce les missions dévolues à l'administrateur et au mandataire judiciaire par les articles L. 622-6, L. 622-20, L. 622-22, L. 622-23, L. 624-17, L. 625-3, L. 625-4 et L. 625-8.
Les licenciements auxquels procède le liquidateur en application de la décision ouvrant ou prononçant la liquidation, le cas échéant au terme du maintien provisoire de l'activité autorisé par le tribunal, sont soumis aux dispositions des articles L. 321-8 et L. 321-9 du code du travail.
Article L641-5
Lorsque la liquidation judiciaire est prononcée au cours de la période d'observation d'une procédure de sauvegarde ou de redressement judiciaire, le liquidateur procède aux opérations de liquidation en même temps qu'il achève éventuellement la vérification des créances et qu'il établit l'ordre des créanciers. Il poursuit les actions introduites avant le jugement de liquidation, soit par l'administrateur, soit par le mandataire judiciaire, et peut introduire les actions qui relèvent de la compétence du mandataire judiciaire.
Article L641-6
Aucun conjoint ou partenaire lié par un pacte civil de solidarité, aucun parent ou allié jusqu'au
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quatrième degré inclusivement, du débiteur personne physique ou des dirigeants, s'il s'agit d'une personne morale, ne peut être désigné à l'une des fonctions prévues à l'article L. 641-1 ou L. 641-10, sauf dans les cas où cette disposition empêche la désignation d'un représentant des salariés.
Article L641-7
Le liquidateur tient informés, au moins tous les trois mois, le juge-commissaire, le débiteur et le ministère public du déroulement des opérations.
Le juge-commissaire et le ministère public peuvent à toute époque requérir communication de tous actes ou documents relatifs à la procédure.
Article L641-8
Toute somme reçue par le liquidateur dans l'exercice de ses fonctions est immédiatement versée en compte de dépôt à la Caisse des dépôts et consignations. En cas de retard, le liquidateur doit, pour les sommes qu'il n'a pas versées, un intérêt dont le taux est égal au taux de l'intérêt légal majoré de cinq points.
Toute somme versée par l'association mentionnée à l'article L. 3253-14 du code du travail en application des articles L. 3253-8 à L. 3253-13 du même code donne lieu à déclaration à l'administration fiscale par le liquidateur.
Article L641-9
I. - Le jugement qui ouvre ou prononce la liquidation judiciaire emporte de plein droit, à partir de sa date, dessaisissement pour le débiteur de l'administration et de la disposition de ses biens même de ceux qu'il a acquis à quelque titre que ce soit tant que la liquidation judiciaire n'est pas clôturée. Les droits et actions du débiteur concernant son patrimoine sont exercés pendant toute la durée de la liquidation judiciaire par le liquidateur.
Toutefois, le débiteur peut se constituer partie civile dans le but d'établir la culpabilité de l'auteur d'un crime ou d'un délit dont il serait victime.
Le débiteur accomplit également les actes et exerce les droits et actions qui ne sont pas compris dans la mission du liquidateur ou de l'administrateur lorsqu'il en a été désigné.
II. - Lorsque le débiteur est une personne morale, les dirigeants sociaux en fonction lors du prononcé du jugement de liquidation judiciaire le demeurent, sauf disposition contraire des statuts ou décision de l'assemblée générale. En cas de nécessité, un mandataire peut être désigné en leur lieu et place par ordonnance du président du tribunal sur requête de tout intéressé, du liquidateur ou du ministère public.
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Le siège social est réputé fixé au domicile du représentant légal de l'entreprise ou du mandataire désigné.
III. - Lorsque le débiteur est une personne physique, il ne peut exercer, au cours de la liquidation judiciaire, aucune des activités mentionnées au premier alinéa de l'article L. 640-2.
Article L641-10
Si la cession totale ou partielle de l'entreprise est envisageable ou si l'intérêt public ou celui des créanciers l'exige, le maintien de l'activité peut être autorisé par le tribunal pour une durée maximale fixée par décret en Conseil d'Etat. Elle peut être prolongée à la demande du ministère public pour une durée fixée par la même voie. Lorsqu'il s'agit d'une exploitation agricole, ce délai est fixé par le tribunal en fonction de l'année culturale en cours et des usages spécifiques aux productions concernées.
Le liquidateur administre l'entreprise.
Dans les conditions prévues à l'article L. 631-17, il peut procéder aux licenciements.
Le cas échéant, il prépare un plan de cession, passe les actes nécessaires à sa réalisation, en reçoit et en distribue le prix.
Toutefois, lorsque le nombre des salariés ou le chiffre d'affaires est supérieur ou égal à des seuils fixés par décret en Conseil d'Etat ou, en cas de nécessité, le tribunal désigne un administrateur judiciaire pour administrer l'entreprise. Dans ce cas, l'administrateur exerce les prérogatives conférées au liquidateur par les articles L. 641-11-1 et L. 641-12. Il prépare le plan de cession, passe les actes nécessaires à sa réalisation et, dans les conditions prévues à l'article L. 631-17, peut procéder aux licenciements.
Lorsque l'administrateur ne dispose pas des sommes nécessaires à la poursuite de l'activité, il peut, sur autorisation du juge-commissaire, se les faire remettre par le liquidateur.
Le liquidateur ou l'administrateur, lorsqu'il en a été désigné, exerce les fonctions conférées, selon le cas, à l'administrateur ou au mandataire judiciaire par les articles L. 622-4 et L. 624-6.
L'arrêté d'un plan de cession totale ou l'expiration du délai fixé en application du premier alinéa met fin au maintien de l'activité. Le tribunal peut également décider d'y mettre fin à tout moment si celui-ci n'est plus justifié.
Article L641-11
Le juge-commissaire exerce les compétences qui lui sont dévolues par les articles L. 621-9, L. 623-2 et L. 631-11 et par le quatrième alinéa de l'article L. 622-16. Lorsqu'il est empêché ou a cessé ses fonctions, il est remplacé dans les conditions prévues au troisième alinéa de l'article L. 621-9.
Les renseignements détenus par le ministère public lui sont communiqués selon les règles prévues au deuxième alinéa de l'article L. 621-8.
Le liquidateur et l'administrateur, lorsqu'il en a été désigné, reçoivent du juge-commissaire tous les
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renseignements utiles à l'accomplissement de leur mission.
Article L641-11-1
I. - Nonobstant toute disposition légale ou toute clause contractuelle, aucune indivisibilité, résiliation ou résolution d'un contrat en cours ne peut résulter du seul fait de l'ouverture ou du prononcé d'une liquidation judiciaire.
Le cocontractant doit remplir ses obligations malgré le défaut d'exécution par le débiteur d'engagements antérieurs au jugement d'ouverture. Le défaut d'exécution de ces engagements n'ouvre droit au profit des créanciers qu'à déclaration au passif.
II. - Le liquidateur a seul la faculté d'exiger l'exécution des contrats en cours en fournissant la prestation promise au cocontractant du débiteur.
Lorsque la prestation porte sur le paiement d'une somme d'argent, celui-ci doit se faire au comptant, sauf pour le liquidateur à obtenir l'acceptation, par le cocontractant du débiteur, de délais de paiement. Au vu des documents prévisionnels dont il dispose, le liquidateur s'assure, au moment où il demande l'exécution, qu'il disposera des fonds nécessaires à cet effet.S'il s'agit d'un contrat à exécution ou paiement échelonnés dans le temps, le liquidateur y met fin s'il lui apparaît qu'il ne disposera pas des fonds nécessaires pour remplir les obligations du terme suivant.
III. - Le contrat en cours est résilié de plein droit :
1° Après une mise en demeure de prendre parti sur la poursuite du contrat adressée par le cocontractant au liquidateur et restée plus d'un mois sans réponse. Avant l'expiration de ce délai, le juge-commissaire peut impartir au liquidateur un délai plus court ou lui accorder une prolongation, qui ne peut excéder deux mois, pour se prononcer ;
2° A défaut de paiement dans les conditions définies au II et d'accord du cocontractant pour poursuivre les relations contractuelles ;
3° Lorsque la prestation du débiteur porte sur le paiement d'une somme d'argent, au jour où le cocontractant est informé de la décision du liquidateur de ne pas poursuivre le contrat.
IV. - A la demande du liquidateur, lorsque la prestation du débiteur ne porte pas sur le paiement d'une somme d'argent, la résiliation est prononcée par le juge-commissaire si elle est nécessaire aux opérations de liquidation et ne porte pas une atteinte excessive aux intérêts du cocontractant.
V. - Si le liquidateur n'use pas de la faculté de poursuivre le contrat ou y met fin dans les conditions du II ou encore si la résiliation du contrat est prononcée en application du IV, l'inexécution peut donner lieu à des dommages et intérêts au profit du cocontractant, dont le montant doit être déclaré au passif. Le cocontractant peut néanmoins différer la restitution des sommes versées en excédent par le débiteur en exécution du contrat jusqu'à ce qu'il ait été statué sur les dommages et intérêts.
VI. - Les dispositions du présent article ne concernent pas les contrats de travail. Elles sont également inapplicables au contrat de fiducie et à la convention en exécution de laquelle le débiteur constituant conserve l'usage ou la jouissance de biens ou droits transférés dans un patrimoine fiduciaire.
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Article L641-12
Sans préjudice de l'application du I et du II de l'article L. 641-11-1, la résiliation du bail des immeubles affectés à l'activité de l'entreprise intervient dans les conditions suivantes : 1° Au jour où le bailleur est informé de la décision du liquidateur de ne pas continuer le bail ; 2° Lorsque le bailleur demande la résiliation judiciaire ou fait constater la résiliation de plein droit du bail pour des causes antérieures au jugement de liquidation judiciaire ou, lorsque ce dernier a été prononcé après une procédure de sauvegarde ou de redressement judiciaire, au jugement d'ouverture de la procédure qui l'a précédée. Il doit, s'il ne l'a déjà fait, introduire sa demande dans les trois mois de la publication du jugement de liquidation judiciaire ; 3° Le bailleur peut également demander la résiliation judiciaire ou faire constater la résiliation de plein droit du bail pour défaut de paiement des loyers et charges afférents à une occupation postérieure au jugement de liquidation judiciaire, dans les conditions prévues aux troisième à cinquième alinéas de l'article L. 622-14. Le liquidateur peut céder le bail dans les conditions prévues au contrat conclu avec le bailleur avec tous les droits et obligations qui s'y rattachent. En ce cas, toute clause imposant au cédant des dispositions solidaires avec le cessionnaire est réputée non écrite. Le privilège du bailleur est déterminé conformément aux trois premiers alinéas de l'article L. 622-16.
Article L641-12-1
Si le débiteur est constituant et seul bénéficiaire d'un contrat de fiducie, l'ouverture ou le prononcé d'une liquidation judiciaire à son égard entraîne la résiliation de plein droit de ce contrat et le retour dans son patrimoine des droits, biens ou sûretés présents dans le patrimoine fiduciaire.
Article L641-13
I.-Sont payées à leur échéance les créances nées régulièrement après le jugement qui ouvre ou prononce la liquidation judiciaire pour les besoins du déroulement de la procédure ou du maintien provisoire de l'activité autorisé en application de l'article L. 641-10 ou en contrepartie d'une prestation fournie au débiteur pendant ce maintien de l'activité. En cas de prononcé de la liquidation judiciaire, sont également payées à leur échéance, les créances nées régulièrement après le jugement d'ouverture de la procédure de sauvegarde ou de redressement judiciaire mentionnées au I de l'article L. 622-17.
II.-Lorsqu'elles ne sont pas payées à l'échéance, ces créances sont payées par privilège avant toutes les autres créances à l'exception de celles qui sont garanties par le privilège établi aux articles L. 143-10, L. 143-11, L. 742-6 et L. 751-15 du code du travail, des frais de justice nés régulièrement après le jugement d'ouverture pour les besoins du déroulement de la procédure, de celles qui sont garanties par le privilège établi par l'article L. 611-11 du présent code et de celles qui sont garanties par des sûretés immobilières ou par des sûretés mobilières spéciales assorties d'un droit de rétention ou constituées en application du chapitre V du titre II du livre V.
III.-Leur paiement se fait dans l'ordre suivant :
1° Les créances de salaires dont le montant n'a pas été avancé en application des articles L. 143-11-1 à L. 143-11-3 du code du travail ;
2° Les prêts consentis ainsi que les créances résultant de la poursuite d'exécution des contrats en
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cours conformément aux dispositions de l'article L. 622-13 du présent code et dont le cocontractant accepte de recevoir un paiement différé ; ces prêts et délais de paiement sont autorisés par le juge-commissaire dans la limite nécessaire à la poursuite de l'activité et font l'objet d'une publicité. En cas de résiliation d'un contrat régulièrement poursuivi, les indemnités et pénalités sont exclues du bénéfice du présent article ;
3° Les sommes dont le montant a été avancé en application du 3° de l'article L. 143-11-1 du code du travail ;
4° Les autres créances, selon leur rang.
IV.-Les créances impayées perdent le privilège que leur confère le II du présent article si elles n'ont pas été portées à la connaissance du mandataire judiciaire, de l'administrateur lorsqu'il en est désigné ou du liquidateur au plus tard, dans le délai de six mois à compter de la publication du jugement ouvrant ou prononçant la liquidation ou, à défaut, dans le délai d'un an à compter de celle du jugement arrêtant le plan de cession.
Article L641-14
Les dispositions des chapitres IV et V du titre II du présent livre relatives à la détermination du patrimoine du débiteur et au règlement des créances résultant du contrat de travail ainsi que les dispositions du chapitre II du titre III du présent livre relatives aux nullités de certains actes s'appliquent à la procédure de liquidation judiciaire.
Toutefois, pour l'application de l'article L. 625-1, le liquidateur cité devant le conseil de prud'hommes ou, à défaut, le demandeur appelle devant la juridiction prud'homale les institutions visées à l'article L. 143-11-4 du code du travail.
Pour l'application de l'article L. 625-3 du présent code, les institutions mentionnées à l'article L. 143-11-4 du code du travail sont mises en cause par le liquidateur ou, à défaut, par les salariés requérants, dans les dix jours du jugement d'ouverture de la procédure de liquidation judiciaire ou du jugement la prononçant.
Article L641-15
Pendant la procédure de liquidation judiciaire, le juge-commissaire peut ordonner que le liquidateur ou l'administrateur, lorsqu'il en a été désigné, soit le destinataire du courrier adressé au débiteur.
Le débiteur, préalablement informé, peut assister à l'ouverture du courrier. Toutefois, une convocation devant une juridiction, une notification de décisions ou tout autre courrier ayant un caractère personnel doit être immédiatement remis ou restitué au débiteur.
Le juge-commissaire peut autoriser l'accès du liquidateur et de l'administrateur, lorsqu'il en a été désigné, au courrier électronique reçu par le débiteur dans des conditions déterminées par décret en Conseil d'Etat.
Lorsque le débiteur exerce une activité pour laquelle il est soumis au secret professionnel, les
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dispositions du présent article ne sont pas applicables.
Chapitre II : De la réalisation de l'actif.
Section 1 : De la cession de l'entreprise.
Article L642-1
La cession de l'entreprise a pour but d'assurer le maintien d'activités susceptibles d'exploitation autonome, de tout ou partie des emplois qui y sont attachés et d'apurer le passif.
Elle peut être totale ou partielle. Dans ce dernier cas, elle porte sur un ensemble d'éléments d'exploitation qui forment une ou plusieurs branches complètes et autonomes d'activités.
Lorsqu'un ensemble est essentiellement constitué du droit à un bail rural, le tribunal peut, sous réserve des droits à indemnité du preneur sortant et nonobstant les autres dispositions du statut du fermage, soit autoriser le bailleur, son conjoint ou l'un de ses descendants à reprendre le fonds pour l'exploiter, soit attribuer le bail rural à un autre preneur proposé par le bailleur ou, à défaut, à tout repreneur dont l'offre a été recueillie dans les conditions fixées aux articles L. 642-2, L. 642-4 et L. 642-5. Les dispositions relatives au contrôle des structures des exploitations agricoles ne sont pas applicables. Toutefois, lorsque plusieurs offres ont été recueillies, le tribunal tient compte des dispositions des 1° à 4° et 6° à 9° de l'article L. 331-3 du code rural.
Lorsque le débiteur est un officier public ou ministériel, le liquidateur peut exercer le droit du débiteur de présenter son successeur au garde des sceaux, ministre de la justice.
Article L642-2
I. - Lorsque le tribunal estime que la cession totale ou partielle de l'entreprise est envisageable, il autorise la poursuite de l'activité et il fixe le délai dans lequel les offres de reprise doivent parvenir au liquidateur et à l'administrateur lorsqu'il en a été désigné.
Toutefois, si les offres reçues en application de l'article L. 631-13 remplissent les conditions prévues au II du présent article et sont satisfaisantes, le tribunal peut décider de ne pas faire application de l'alinéa précédent.
II. - Toute offre doit être écrite et comporter l'indication :
1° De la désignation précise des biens, des droits et des contrats inclus dans l'offre ;
2° Des prévisions d'activité et de financement ;
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3° Du prix offert, des modalités de règlement, de la qualité des apporteurs de capitaux et, le cas échéant, de leurs garants. Si l'offre propose un recours à l'emprunt, elle doit en préciser les conditions, en particulier de durée ;
4° De la date de réalisation de la cession ;
5° Du niveau et des perspectives d'emploi justifiés par l'activité considérée ;
6° Des garanties souscrites en vue d'assurer l'exécution de l'offre ;
7° Des prévisions de cession d'actifs au cours des deux années suivant la cession ;
8° De la durée de chacun des engagements pris par l'auteur de l'offre.
III. - Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, l'offre doit en outre comporter l'indication de la qualification professionnelle du cessionnaire.
IV. - Le liquidateur ou l'administrateur lorsqu'il en a été désigné informe le débiteur, le représentant des salariés et les contrôleurs du contenu des offres reçues. Il les dépose au greffe où tout intéressé peut en prendre connaissance.
Elles sont notifiées, le cas échéant, à l'ordre professionnel ou à l'autorité compétente dont le débiteur relève.
V. - L'offre ne peut être ni modifiée, sauf dans un sens plus favorable aux objectifs mentionnés au premier alinéa de l'article L. 642-1, ni retirée. Elle lie son auteur jusqu'à la décision du tribunal arrêtant le plan.
En cas d'appel de la décision arrêtant le plan, seul le cessionnaire reste lié par son offre.
Article L642-3
Ni le débiteur, ni les dirigeants de droit ou de fait de la personne morale en liquidation judiciaire, ni les parents ou alliés jusqu'au deuxième degré inclusivement de ces dirigeants ou du débiteur personne physique, ni les personnes ayant ou ayant eu la qualité de contrôleur au cours de la procédure ne sont admis, directement ou par personne interposée, à présenter une offre. De même, il est fait interdiction à ces personnes d'acquérir, dans les cinq années suivant la cession, tout ou partie des biens compris dans cette cession, directement ou indirectement, ainsi que d'acquérir des parts ou titres de capital de toute société ayant dans son patrimoine, directement ou indirectement, tout ou partie de ces biens, ainsi que des valeurs mobilières donnant accès, dans le même délai, au capital de cette société.
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Toutefois, lorsqu'il s'agit d'une exploitation agricole, le tribunal peut déroger à ces interdictions et autoriser la cession à l'une des personnes visées au premier alinéa, à l'exception des contrôleurs. Dans les autres cas, le tribunal, sur requête du ministère public, peut autoriser la cession à l'une des personnes visées au premier alinéa, à l'exception des contrôleurs, par un jugement spécialement motivé, après avoir demandé l'avis des contrôleurs.
Tout acte passé en violation du présent article est annulé à la demande de tout intéressé ou du ministère public, présentée dans un délai de trois ans à compter de la conclusion de l'acte. Lorsque l'acte est soumis à publicité, le délai court à compter de celle-ci.
Article L642-4
Le liquidateur ou l'administrateur lorsqu'il en a été désigné donne au tribunal tous éléments permettant de vérifier le caractère sérieux de l'offre ainsi que la qualité de tiers de son auteur au sens des dispositions de l'article L. 642-3.
Il donne également au tribunal tous éléments permettant d'apprécier les conditions d'apurement du passif, notamment au regard du prix offert, des actifs résiduels à recouvrer ou à réaliser, des dettes de la période de poursuite d'activité et, le cas échéant, des autres dettes restant à la charge du débiteur.
Article L642-5
Après avoir recueilli l'avis du ministère public et entendu ou dûment appelé le débiteur, le liquidateur, l'administrateur lorsqu'il en a été désigné, les représentants du comité d'entreprise ou, à défaut, des délégués du personnel et les contrôleurs, le tribunal retient l'offre qui permet dans les meilleures conditions d'assurer le plus durablement l'emploi attaché à l'ensemble cédé, le paiement des créanciers et qui présente les meilleures garanties d'exécution. Il arrête un ou plusieurs plans de cession.
Les débats doivent avoir lieu en présence du ministère public lorsque la procédure est ouverte au bénéfice de personnes physiques ou morales dont le nombre de salariés ou le chiffre d'affaires hors taxes est supérieur à un seuil fixé par décret en Conseil d'Etat.
Le jugement qui arrête le plan en rend les dispositions applicables à tous.
Les droits de préemption institués par le code rural ou le code de l'urbanisme ne peuvent s'exercer sur un bien compris dans ce plan.
Lorsque le plan prévoit des licenciements pour motif économique, il ne peut être arrêté par le tribunal qu'après que le comité d'entreprise ou, à défaut, les délégués du personnel ont été consultés dans les conditions prévues à l'article L. 321-9 du code du travail et l'autorité administrative compétente informée dans les conditions prévues à l'article L. 321-8 du même code. Le plan précise
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notamment les licenciements qui doivent intervenir dans le délai d'un mois après le jugement. Dans ce délai, ces licenciements interviennent sur simple notification du liquidateur, ou de l'administrateur lorsqu'il en a été désigné, sous réserve des droits de préavis prévus par la loi, les conventions ou les accords collectifs du travail.
Lorsque le licenciement concerne un salarié bénéficiant d'une protection particulière en matière de licenciement, ce délai d'un mois après le jugement est celui dans lequel l'intention de rompre le contrat de travail doit être manifestée.
Article L642-6
Une modification substantielle dans les objectifs et les moyens du plan ne peut être décidée que par le tribunal, à la demande du cessionnaire.
Le tribunal statue après avoir entendu ou dûment appelé le liquidateur, l'administrateur judiciaire lorsqu'il en a été désigné, les contrôleurs, les représentants du comité d'entreprise ou, à défaut, des délégués du personnel et toute personne intéressée et après avoir recueilli l'avis du ministère public.
Toutefois, le montant du prix de cession tel qu'il a été fixé dans le jugement arrêtant le plan ne peut être modifié.
Article L642-7
Le tribunal détermine les contrats de crédit-bail, de location ou de fourniture de biens ou services nécessaires au maintien de l'activité au vu des observations des cocontractants du débiteur transmises au liquidateur ou à l'administrateur lorsqu'il en a été désigné.
Le jugement qui arrête le plan emporte cession de ces contrats, même lorsque la cession est précédée de la location-gérance prévue à l'article L. 642-13.
Ces contrats doivent être exécutés aux conditions en vigueur au jour de l'ouverture de la procédure, nonobstant toute clause contraire.
En cas de cession d'un contrat de crédit-bail, le crédit-preneur ne peut lever l'option d'achat qu'en cas de paiement des sommes restant dues dans la limite de la valeur du bien fixée d'un commun accord entre les parties ou, à défaut, par le tribunal à la date de la cession.
La convention en exécution de laquelle le débiteur constituant conserve l'usage ou la jouissance de biens ou droits transférés à titre de garantie dans un patrimoine fiduciaire ne peut être cédée au cessionnaire, sauf accord des bénéficiaires du contrat de fiducie.
Article L642-8
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En exécution du plan arrêté par le tribunal, le liquidateur ou l'administrateur lorsqu'il en a été désigné passe tous les actes nécessaires à la réalisation de la cession. Dans l'attente de l'accomplissement de ces actes et sur justification de la consignation du prix de cession ou d'une garantie équivalente, le tribunal peut confier au cessionnaire, à sa demande et sous sa responsabilité, la gestion de l'entreprise cédée.
Lorsque la cession comprend un fonds de commerce, aucune surenchère n'est admise.
Article L642-9
Tant que le prix de cession n'est pas intégralement payé, le cessionnaire ne peut, à l'exception des stocks, aliéner ou donner en location-gérance les biens corporels ou incorporels qu'il a acquis.
Toutefois, leur aliénation totale ou partielle, leur affectation à titre de sûreté, leur location ou leur location-gérance peut être autorisée par le tribunal après rapport du liquidateur qui doit préalablement consulter le comité d'entreprise ou, à défaut, les délégués du personnel. Le tribunal doit tenir compte des garanties offertes par le cessionnaire.
Toute substitution de cessionnaire doit être autorisée par le tribunal dans le jugement arrêtant le plan de cession, sans préjudice de la mise en oeuvre des dispositions de l'article L. 642-6. L'auteur de l'offre retenue par le tribunal reste garant solidairement de l'exécution des engagements qu'il a souscrits.
Tout acte passé en violation des alinéas qui précèdent est annulé à la demande de tout intéressé ou du ministère public, présentée dans le délai de trois ans à compter de la conclusion de l'acte. Lorsque l'acte est soumis à publicité, le délai court à compter de celle-ci.
Article L642-10
Le tribunal peut prévoir dans le jugement arrêtant le plan de cession que tout ou partie des biens cédés ne pourront être aliénés, pour une durée qu'il fixe, sans son autorisation. La publicité de l'inaliénabilité temporaire est assurée dans des conditions fixées par un décret en Conseil d'Etat. Lorsque le tribunal est saisi d'une demande d'autorisation d'aliéner un bien rendu inaliénable en application du premier alinéa, il statue, à peine de nullité, après avoir recueilli l'avis du ministère public.
Tout acte passé en violation des dispositions du premier alinéa est annulé à la demande de tout intéressé ou du ministère public, présentée dans le délai de trois ans à compter de la conclusion de l'acte. Lorsque l'acte est soumis à publicité, le délai court à compter de celle-ci.
Article L642-11
Le cessionnaire rend compte au liquidateur de l'application des dispositions prévues par le plan de
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cession.
Si le cessionnaire n'exécute pas ses engagements, le tribunal peut, à la demande du ministère public d'une part, du liquidateur, d'un créancier, de tout intéressé ou d'office, après avoir recueilli l'avis du ministère public, d'autre part, prononcer la résolution du plan sans préjudice de dommages et intérêts.
Le tribunal peut prononcer la résolution ou la résiliation des actes passés en exécution du plan résolu. Le prix payé par le cessionnaire reste acquis.
Article L642-12
Lorsque la cession porte sur des biens grevés d'un privilège spécial, d'un gage, d'un nantissement ou d'une hypothèque, une quote-part du prix est affectée par le tribunal à chacun de ces biens pour la répartition du prix et l'exercice du droit de préférence.
Le paiement du prix de cession fait obstacle à l'exercice à l'encontre du cessionnaire des droits des créanciers inscrits sur ces biens.
Jusqu'au paiement complet du prix qui emporte purge des inscriptions grevant les biens compris dans la cession, les créanciers bénéficiant d'un droit de suite ne peuvent l'exercer qu'en cas d'aliénation du bien cédé par le cessionnaire.
Toutefois, la charge des sûretés immobilières et mobilières spéciales garantissant le remboursement d'un crédit consenti à l'entreprise pour lui permettre le financement d'un bien sur lequel portent ces sûretés est transmise au cessionnaire. Celui-ci est alors tenu d'acquitter entre les mains du créancier les échéances convenues avec lui et qui restent dues à compter du transfert de la propriété ou, en cas de location-gérance, de la jouissance du bien sur lequel porte la garantie. Il peut être dérogé aux dispositions du présent alinéa par accord entre le cessionnaire et les créanciers titulaires des sûretés.
Les dispositions du présent article n'affectent pas le droit de rétention acquis par un créancier sur des biens compris dans la cession.
Article L642-13
Par le jugement qui arrête le plan de cession, le tribunal peut autoriser la conclusion d'un contrat de location-gérance, même en présence de toute clause contraire, notamment dans le bail de l'immeuble, au profit de la personne qui a présenté l'offre d'acquisition permettant dans les meilleures conditions d'assurer le plus durablement l'emploi et le paiement des créanciers.
Le tribunal statue après avoir entendu ou dûment appelé le liquidateur, l'administrateur judiciaire lorsqu'il en a été désigné, les contrôleurs, les représentants du comité d'entreprise ou, à défaut, des délégués du personnel et toute personne intéressée et après avoir recueilli l'avis du ministère public.
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Article L642-14
Les dispositions des articles L. 144-3, L. 144-4 et L. 144-7 sur la location-gérance ne sont pas applicables.
Article L642-15
En cas de location-gérance, l'entreprise doit être effectivement cédée dans les deux ans du jugement qui arrête le plan.
Article L642-16
Le liquidateur peut se faire communiquer par le locataire-gérant tous les documents et informations utiles à sa mission. Il rend compte au tribunal de toute atteinte aux éléments pris en location-gérance ainsi que de l'inexécution des obligations incombant au locataire-gérant.
Le tribunal, d'office ou à la demande du liquidateur ou du ministère public, peut ordonner la résiliation du contrat de location-gérance et la résolution du plan.
Article L642-17
Si le locataire-gérant n'exécute pas son obligation d'acquérir dans les conditions et délais fixés par le plan, le tribunal, d'office ou à la demande du liquidateur ou du ministère public, ordonne la résiliation du contrat de location-gérance et la résolution du plan sans préjudice de tous dommages et intérêts.
Toutefois, lorsque le locataire-gérant justifie qu'il ne peut acquérir aux conditions initialement prévues pour une cause qui ne lui est pas imputable, il peut demander au tribunal de modifier ces conditions, sauf en ce qui concerne le montant du prix et le délai prévu à l'article L. 642-15. Le tribunal statue avant l'expiration du contrat de location et après avoir recueilli l'avis du ministère public et entendu ou dûment appelé le liquidateur, l'administrateur lorsqu'il en est désigné, les contrôleurs, les représentants du comité d'entreprise ou, à défaut, des délégués du personnel et toute personne intéressée.
Section 2 : De la cession des actifs du débiteur.
Article L642-18
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Les ventes d'immeubles ont lieu conformément aux articles 2204 à 2212 du code civil, à l'exception des articles 2206 et 2211, sous réserve que ces dispositions ne soient pas contraires à celles du présent code. Le juge-commissaire fixe la mise à prix et les conditions essentielles de la vente.
Lorsqu'une procédure de saisie immobilière engagée avant l'ouverture de la procédure de sauvegarde, de redressement ou de liquidation judiciaires a été suspendue par l'effet de cette dernière, le liquidateur peut être subrogé dans les droits du créancier saisissant pour les actes que celui-ci a effectués, lesquels sont réputés accomplis pour le compte du liquidateur qui procède à la vente des immeubles. La saisie immobilière peut alors reprendre son cours au stade où le jugement d'ouverture l'avait suspendue.
Le juge-commissaire peut, si la consistance des biens, leur emplacement ou les offres reçues sont de nature à permettre une cession amiable dans de meilleures conditions, ordonner la vente par adjudication amiable sur la mise à prix qu'il fixe ou autoriser la vente de gré à gré aux prix et conditions qu'il détermine. En cas d'adjudication amiable, les articles 2205, 2207 à 2209 et 2212 du code civil sont applicables, sous la réserve prévue au premier alinéa, et il peut toujours être fait surenchère.
Pour les adjudications réalisées en application des alinéas qui précèdent, le paiement du prix au liquidateur et des frais de la vente emportent purge des hypothèques et de tout privilège du chef du débiteur.L'adjudicataire ne peut, avant d'avoir procédé à ces paiements, accomplir un acte de disposition sur le bien à l'exception de la constitution d'une hypothèque accessoire à un contrat de prêt destiné à l'acquisition de ce bien.
Le liquidateur répartit le produit des ventes et règle l'ordre entre les créanciers, sous réserve des contestations qui sont portées devant le juge de l'exécution.
En cas de liquidation judiciaire d'un agriculteur, le tribunal peut, en considération de la situation personnelle et familiale du débiteur, lui accorder des délais de grâce dont il détermine la durée pour quitter sa maison d'habitation principale.
Les modalités d'application du présent article sont fixées par décret en Conseil d'Etat.
Article L642-19
Le juge-commissaire soit ordonne la vente aux enchères publiques, soit autorise, aux prix et conditions qu'il détermine, la vente de gré à gré des autres biens du débiteur. Lorsque la vente a lieu aux enchères publiques, il y est procédé dans les conditions prévues, selon le cas, au second alinéa de l'article L. 322-2 ou aux articles L. 322-4 ou L. 322-7.
Le juge-commissaire peut demander que le projet de vente amiable lui soit soumis afin de vérifier si les conditions qu'il a fixées ont été respectées.
Article L642-19-1
Les conditions et formes du recours contre les décisions du juge-commissaire prises en application des articles L. 642-18 et L. 642-19 sont fixées par décret en Conseil d'Etat.
Article L642-20
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Les dispositions de l'article L. 642-3 sont applicables aux cessions d'actifs réalisées en application des articles L. 642-18 et L. 642-19. Dans ce cas, les pouvoirs du tribunal sont exercés par le juge-commissaire.
Toutefois, lorsque un actif mobilier est nécessaire aux besoins de la vie courante et de faible valeur, le juge-commissaire peut, par une ordonnance spécialement motivée, autoriser l'une des personnes mentionnées au premier alinéa de l'article L. 642-3 à s'en porter acquéreur, à l'exception des contrôleurs. Il statue après avoir recueilli l'avis du ministère public.
Article L642-20-1
A défaut de retrait du gage ou de la chose légitimement retenue dans les conditions prévues par le deuxième alinéa de l'article L. 641-3, le liquidateur doit, dans les six mois du jugement de liquidation judiciaire, demander au juge-commissaire l'autorisation de procéder à la réalisation. Le liquidateur notifie l'autorisation au créancier quinze jours avant la réalisation.
Le créancier gagiste, même s'il n'est pas encore admis, peut demander au juge-commissaire, avant la réalisation, l'attribution judiciaire. Si la créance est rejetée en tout ou en partie, il restitue au liquidateur le bien ou sa valeur, sous réserve du montant admis de sa créance.
En cas de vente par le liquidateur, le droit de rétention est de plein droit reporté sur le prix.L'inscription éventuellement prise pour la conservation du gage est radiée à la diligence du liquidateur.
Section 3 : Dispositions communes.
Article L642-22
Toute cession d'entreprise et toute réalisation d'actif doivent être précédées d'une publicité dont les modalités sont déterminées par un décret en Conseil d'Etat en fonction de la taille de l'entreprise et de la nature des actifs à vendre.
Article L642-23
Avant toute vente ou toute destruction des archives du débiteur, le liquidateur en informe l'autorité administrative compétente pour la conservation des archives. Cette autorité dispose d'un droit de préemption.
La destination des archives du débiteur soumis au secret professionnel est déterminée par le liquidateur en accord avec l'ordre professionnel ou l'autorité compétente dont il relève.
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Article L642-24
Le liquidateur peut, avec l'autorisation du juge-commissaire et le débiteur entendu ou dûment appelé, compromettre et transiger sur toutes les contestations qui intéressent collectivement les créanciers même sur celles qui sont relatives à des droits et actions immobiliers.
Si l'objet du compromis ou de la transaction est d'une valeur indéterminée ou excède la compétence en dernier ressort du tribunal, le compromis ou la transaction est soumis à l'homologation du tribunal.
Chapitre III : De l'apurement du passif.
Section 1 : Du règlement des créanciers.
Article L643-1
Le jugement qui ouvre ou prononce la liquidation judiciaire rend exigibles les créances non échues. Toutefois, lorsque le tribunal autorise la poursuite de l'activité au motif que la cession totale ou partielle de l'entreprise est envisageable, les créances non échues sont exigibles à la date du jugement statuant sur la cession ou, à défaut, à la date à laquelle le maintien de l'activité prend fin .
Lorsque ces créances sont exprimées dans une monnaie autre que celle du lieu où a été prononcée la liquidation judiciaire, elles sont converties en la monnaie de ce lieu, selon le cours du change à la date du jugement.
Article L643-2
Les créanciers titulaires d'un privilège spécial, d'un gage, d'un nantissement ou d'une hypothèque et le Trésor public pour ses créances privilégiées peuvent, dès lors qu'ils ont déclaré leurs créances même s'ils ne sont pas encore admis, exercer leur droit de poursuite individuelle si le liquidateur n'a pas entrepris la liquidation des biens grevés dans le délai de trois mois à compter du jugement qui ouvre ou prononce la liquidation judiciaire.
Lorsque le tribunal a fixé un délai en application de l'article L. 642-2, ces créanciers peuvent exercer leur droit de poursuite individuelle à l'expiration de ce délai, si aucune offre incluant ce bien n'a été présentée.
En cas de vente d'immeubles, les dispositions des premier, troisième et cinquième alinéas de l'article L. 642-18 sont applicables. Lorsqu'une procédure de saisie immobilière a été engagée avant le jugement d'ouverture, le créancier titulaire d'une hypothèque est dispensé, lors de la reprise des
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poursuites individuelles, des actes et formalités effectués avant ce jugement.
Article L643-3
Le juge-commissaire peut, d'office ou à la demande du liquidateur ou d'un créancier, ordonner le paiement à titre provisionnel d'une quote-part d'une créance définitivement admise.
Ce paiement provisionnel peut être subordonné à la présentation par son bénéficiaire d'une garantie émanant d'un établissement de crédit.
Dans le cas où la demande de provision porte sur une créance privilégiée des administrations financières, des organismes de sécurité sociale, des institutions gérant le régime d'assurance chômage prévu par les articles L. 351-3 et suivants du code du travail et des institutions régies par le livre IX du code de la sécurité sociale, la garantie prévue au deuxième alinéa n'est pas due.
Article L643-4
Si une ou plusieurs distributions de sommes précèdent la répartition du prix des immeubles, les créanciers privilégiés et hypothécaires admis concourent aux répartitions dans la proportion de leurs créances totales.
Après la vente des immeubles et le règlement définitif de l'ordre entre les créanciers hypothécaires et privilégiés, ceux d'entre eux qui viennent en rang utile sur le prix des immeubles pour la totalité de leur créance ne perçoivent le montant de leur collocation hypothécaire que sous la déduction des sommes par eux reçues.
Les sommes ainsi déduites profitent aux créanciers chirographaires.
Article L643-5
Les droits des créanciers hypothécaires qui sont colloqués partiellement sur la distribution du prix des immeubles sont réglés d'après le montant qui leur reste dû après la collocation immobilière. L'excédent des dividendes qu'ils ont touchés dans des distributions antérieures par rapport au dividende calculé après collocation est retenu sur le montant de leur collocation hypothécaire et est inclus dans les sommes à répartir aux créanciers chirographaires.
Article L643-6
Les créanciers privilégiés ou hypothécaires, non remplis sur le prix des immeubles, concourent avec les créanciers chirographaires pour ce qui leur reste dû.
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Article L643-7
Sous réserve du deuxième alinéa de l'article L. 642-20-1, les dispositions des articles L. 643-4 à L. 643-6s'appliquent aux créanciers bénéficiaires d'une sûreté mobilière spéciale.
Article L643-8
Le montant de l'actif, distraction faite des frais et dépens de la liquidation judiciaire, des subsides accordés au débiteur personne physique ou aux dirigeants ou à leur famille et des sommes payées aux créanciers privilégiés, est réparti entre tous les créanciers au marc le franc de leurs créances admises.
La part correspondant aux créances sur l'admission desquelles il n'aurait pas été statué définitivement et, notamment, les rémunérations des dirigeants sociaux tant qu'il n'aura pas été statué sur leur cas, est mise en réserve.
Section 2 : De la clôture des opérations de liquidation judiciaire.
Article L643-9
Dans le jugement qui ouvre ou prononce la liquidation judiciaire, le tribunal fixe le délai au terme duquel la clôture de la procédure devra être examinée. Si la clôture ne peut être prononcée au terme de ce délai, le tribunal peut proroger le terme par une décision motivée.
Lorsqu'il n'existe plus de passif exigible ou que le liquidateur dispose de sommes suffisantes pour désintéresser les créanciers, ou lorsque la poursuite des opérations de liquidation judiciaire est rendue impossible en raison de l'insuffisance de l'actif, la clôture de la liquidation judiciaire est prononcée par le tribunal, le débiteur entendu ou dûment appelé.
Le tribunal est saisi à tout moment par le liquidateur, le débiteur ou le ministère public. Il peut se saisir d'office. A l'expiration d'un délai de deux ans à compter du jugement de liquidation judiciaire, tout créancier peut également saisir le tribunal aux fins de clôture de la procédure.
En cas de plan de cession, le tribunal ne prononce la clôture de la procédure qu'après avoir constaté le respect de ses obligations par le cessionnaire.
Article L643-10
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Le liquidateur procède à la reddition des comptes. Il est responsable des documents qui lui ont été remis au cours de la procédure pendant cinq ans à compter de cette reddition.
Article L643-11
I. - Le jugement de clôture de liquidation judiciaire pour insuffisance d'actif ne fait pas recouvrer aux créanciers l'exercice individuel de leurs actions contre le débiteur, sauf si la créance résulte :
1° D'une condamnation pénale du débiteur ;
2° De droits attachés à la personne du créancier.
II. - Toutefois, la caution ou le coobligé qui a payé au lieu et place du débiteur peut poursuivre celui-ci.
III. - Les créanciers recouvrent leur droit de poursuite individuelle dans les cas suivants :
1° La faillite personnelle du débiteur a été prononcée ;
2° Le débiteur a été reconnu coupable de banqueroute ;
3° Le débiteur ou une personne morale dont il a été le dirigeant a été soumis à une procédure de liquidation judiciaire antérieure clôturée pour insuffisance d'actif moins de cinq ans avant l'ouverture de celle à laquelle il est soumis ;
4° La procédure a été ouverte en tant que procédure territoriale au sens du paragraphe 2 de l'article 3 du règlement (CE) n° 1346/2000 du Conseil du 29 mai 2000 relatif aux procédures d'insolvabilité.
IV. - En outre, en cas de fraude à l'égard d'un ou de plusieurs créanciers, le tribunal autorise la reprise des actions individuelles de tout créancier à l'encontre du débiteur. Le tribunal statue lors de la clôture de la procédure après avoir entendu ou dûment appelé le débiteur, le liquidateur et les contrôleurs. Il peut statuer postérieurement à celle-ci, à la demande de tout intéressé, dans les mêmes conditions.
V. - Les créanciers qui recouvrent leur droit de poursuite individuelle et dont les créances ont été admises ne peuvent exercer ce droit sans avoir obtenu un titre exécutoire ou, lorsqu'ils disposent déjà d'un tel titre, sans avoir fait constater qu'ils remplissent les conditions prévues au présent article. Le président du tribunal, saisi à cette fin, statue par ordonnance. Les créanciers qui recouvrent l'exercice individuel de leurs actions et dont les créances n'ont pas été vérifiées peuvent le mettre en œuvre dans les conditions du droit commun.
Article L643-12
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La clôture de la liquidation judiciaire suspend les effets de la mesure d'interdiction d'émettre des chèques, dont le débiteur fait l'objet au titre de l'article 65-3 du décret du 30 octobre 1935 unifiant le droit en matière de chèques et relatif aux cartes de paiement, mise en oeuvre à l'occasion du rejet d'un chèque émis avant le jugement d'ouverture de la procédure.
Si les créanciers recouvrent leur droit de poursuite individuelle, la mesure d'interdiction reprend effet, à compter de la délivrance du titre exécutoire mentionné au V de l'article L. 643-11.
Article L643-13
Si la clôture de la liquidation judiciaire est prononcée pour insuffisance d'actif et qu'il apparaît que des actifs n'ont pas été réalisés ou que des actions dans l'intérêt des créanciers n'ont pas été engagées pendant le cours de la procédure, celle-ci peut être reprise.
Le tribunal est saisi par le liquidateur précédemment désigné, par le ministère public ou par tout créancier intéressé. Il peut également se saisir d'office. S'il est saisi par un créancier, ce dernier doit justifier avoir consigné au greffe du tribunal les fonds nécessaires aux frais des opérations. Le montant des frais consignés lui est remboursé par priorité sur les sommes recouvrées à la suite de la reprise de la procédure.
Si les actifs du débiteur consistent en une somme d'argent, la procédure prévue au chapitre IV du présent titre est de droit applicable.
Chapitre IV : De la liquidation judiciaire simplifiée.
Article L644-1
La procédure de liquidation judiciaire simplifiée est soumise aux règles de la liquidation judiciaire, sous réserve des dispositions du présent chapitre.
Article L644-2
Par dérogation aux dispositions de l'article L. 642-19, lorsque la procédure simplifiée est décidée en application de l'article L. 641-2, le liquidateur procède à la vente des biens mobiliers de gré à gré ou aux enchères publiques dans les trois mois suivant le jugement de liquidation judiciaire.
A l'issue de cette période, il est procédé à la vente aux enchères publiques des biens subsistants.
Lorsque la procédure simplifiée est décidée en application de l'article L. 641-2-1, le tribunal ou le
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président du tribunal, selon le cas, détermine les biens du débiteur pouvant faire l'objet d'une vente de gré à gré dans les trois mois de sa décision. Sous cette réserve, les biens sont vendus aux enchères publiques.
Article L644-3
Par dérogation aux dispositions de l'article L. 641-4, il est procédé à la vérification des seules créances susceptibles de venir en rang utile dans les répartitions et des créances résultant d'un contrat de travail.
Article L644-4
A l'issue de la procédure de vérification et d'admission des créances telle que prévue à l'article L. 644-3 et de la réalisation des biens, le liquidateur fait figurer ses propositions de répartition sur l'état des créances. Cet état ainsi complété est déposé au greffe et fait l'objet d'une mesure de publicité. Tout intéressé peut en prendre connaissance et, à l'exclusion du liquidateur, former réclamation devant le juge-commissaire dans des conditions fixées par décret en Conseil d'Etat. Les réclamations du débiteur ne peuvent concerner que les propositions de répartition. Celles des créanciers ne peuvent pas être formées contre les décisions du juge-commissaire portées sur l'état des créances auxquelles ils ont été partie. Le juge-commissaire statue sur les contestations par une décision qui peut faire l'objet d'un recours dans un délai fixé par décret en Conseil d'Etat. Le liquidateur procède à la répartition conformément à ses propositions ou à la décision rendue.
Article L644-5
Au plus tard dans le délai d'un an à compter de la décision ayant ordonné ou décidé l'application de la procédure simplifiée, le tribunal prononce la clôture de la liquidation judiciaire, le débiteur entendu ou dûment appelé.
Il peut, par un jugement spécialement motivé, proroger la procédure pour une durée qui ne peut excéder trois mois.
Article L644-6
A tout moment, le tribunal peut décider, par un jugement spécialement motivé, de ne plus faire application des dérogations prévues au présent chapitre.
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Partie législative
LIVRE VI : Des difficultés des entreprises.
TITRE V : Des responsabilités et des sanctions.
Article L650-1
Lorsqu'une procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire est ouverte, les créanciers ne peuvent être tenus pour responsables des préjudices subis du fait des concours consentis, sauf les cas de fraude, d'immixtion caractérisée dans la gestion du débiteur ou si les garanties prises en contrepartie de ces concours sont disproportionnées à ceux-ci.
Pour le cas où la responsabilité d'un créancier est reconnue, les garanties prises en contrepartie de ses concours peuvent être annulées ou réduites par le juge.
Chapitre Ier : De la responsabilité pour insuffisance d'actif.
Article L651-1
Les dispositions du présent chapitre sont applicables aux dirigeants d'une personne morale de droit privé soumise à une procédure collective, ainsi qu'aux personnes physiques représentants permanents de ces dirigeants personnes morales.
Article L651-2
Lorsque la liquidation judiciaire d'une personne morale fait apparaître une insuffisance d'actif, le tribunal peut, en cas de faute de gestion ayant contribué à cette insuffisance d'actif, décider que le montant de cette insuffisance d'actif sera supporté, en tout ou en partie, par tous les dirigeants de droit ou de fait, ou par certains d'entre eux, ayant contribué à la faute de gestion. En cas de pluralité de dirigeants, le tribunal peut, par décision motivée, les déclarer solidairement responsables.
L'action se prescrit par trois ans à compter du jugement qui prononce la liquidation judiciaire.
Les sommes versées par les dirigeants entrent dans le patrimoine du débiteur. Elles sont réparties au marc le franc entre tous les créanciers. Les dirigeants ne peuvent pas participer aux répartitions à concurrence des sommes au versement desquelles ils ont été condamnés.
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Article L651-3
Dans le cas prévu à l'article L. 651-2, le tribunal est saisi par le liquidateur ou le ministère public.
Dans l'intérêt collectif des créanciers, le tribunal peut également être saisi par la majorité des créanciers nommés contrôleurs lorsque le liquidateur n'a pas engagé l'action prévue au même article, après une mise en demeure restée sans suite dans un délai et des conditions fixés par décret en Conseil d'Etat.
Le juge-commissaire ne peut ni siéger dans la formation de jugement, ni participer au délibéré.
Les dépens et frais irrépétibles auxquels a été condamné le dirigeant sont payés par priorité sur les sommes versées pour combler le passif.
Article L651-4
Pour l'application des dispositions de l'article L. 651-2, d'office ou à la demande de l'une des personnes mentionnées à l'article L. 651-3, le président du tribunal peut charger le juge-commissaire ou, à défaut, un membre de la juridiction qu'il désigne d'obtenir, nonobstant toute disposition législative contraire, communication de tout document ou information sur la situation patrimoniale des dirigeants et des représentants permanents des dirigeants personnes morales mentionnées à l'article L. 651-1 de la part des administrations et organismes publics, des organismes de prévoyance et de sécurité sociale, des établissements de paiement et des établissements de crédit.
Le président du tribunal peut, dans les mêmes conditions, ordonner toute mesure conservatoire utile à l'égard des biens des dirigeants ou de leurs représentants visés à l'alinéa qui précède.
Les dispositions du présent article sont également applicables aux personnes membres ou associées de la personne morale en procédure de sauvegarde, de redressement ou de liquidation judiciaire, lorsqu'elles sont responsables indéfiniment et solidairement de ses dettes.
Chapitre III : De la faillite personnelle et des autres mesures d'interdiction.
Article L653-1
I. - Lorsqu'une procédure de redressement judiciaire ou de liquidation judiciaire est ouverte, les dispositions du présent chapitre sont applicables :
1° Aux personnes physiques exerçant une activité commerciale ou artisanale, aux agriculteurs et à toute autre personne physique exerçant une activité professionnelle indépendante y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé ;
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2° Aux personnes physiques, dirigeants de droit ou de fait de personnes morales ;
3° Aux personnes physiques, représentants permanents de personnes morales, dirigeants des personnes morales définies au 2°.
Ces mêmes dispositions ne sont pas applicables aux personnes physiques ou dirigeants de personne morale, exerçant une activité professionnelle indépendante et, à ce titre, soumises à des règles disciplinaires.
II. - Les actions prévues par le présent chapitre se prescrivent par trois ans à compter du jugement qui prononce l'ouverture de la procédure mentionnée au I.
Article L653-2
La faillite personnelle emporte interdiction de diriger, gérer, administrer ou contrôler, directement ou indirectement, toute entreprise commerciale ou artisanale, toute exploitation agricole ou toute entreprise ayant toute autre activité indépendante et toute personne morale.
Article L653-3
Le tribunal peut prononcer la faillite personnelle de toute personne mentionnée au 1° du I de l'article L. 653-1, sous réserve des exceptions prévues au dernier alinéa du I du même article, contre laquelle a été relevé l'un des faits ci-après :
1° Avoir poursuivi abusivement une exploitation déficitaire qui ne pouvait conduire qu'à la cessation des paiements ;
2° Abrogé.
3° Avoir détourné ou dissimulé tout ou partie de son actif ou frauduleusement augmenté son passif.
Article L653-4
Le tribunal peut prononcer la faillite personnelle de tout dirigeant, de droit ou de fait, d'une personne morale, contre lequel a été relevé l'un des faits ci-après :
1° Avoir disposé des biens de la personne morale comme des siens propres ;
2° Sous le couvert de la personne morale masquant ses agissements, avoir fait des actes de commerce dans un intérêt personnel ;
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3° Avoir fait des biens ou du crédit de la personne morale un usage contraire à l'intérêt de celle-ci à des fins personnelles ou pour favoriser une autre personne morale ou entreprise dans laquelle il était intéressé directement ou indirectement ;
4° Avoir poursuivi abusivement, dans un intérêt personnel, une exploitation déficitaire qui ne pouvait conduire qu'à la cessation des paiements de la personne morale ;
5° Avoir détourné ou dissimulé tout ou partie de l'actif ou frauduleusement augmenté le passif de la personne morale.
Article L653-5
Le tribunal peut prononcer la faillite personnelle de toute personne mentionnée à l'article L. 653-1 contre laquelle a été relevé l'un des faits ci-après :
1° Avoir exercé une activité commerciale, artisanale ou agricole ou une fonction de direction ou d'administration d'une personne morale contrairement à une interdiction prévue par la loi ;
2° Avoir, dans l'intention d'éviter ou de retarder l'ouverture de la procédure de redressement judiciaire ou de liquidation judiciaire, fait des achats en vue d'une revente au-dessous du cours ou employé des moyens ruineux pour se procurer des fonds ;
3° Avoir souscrit, pour le compte d'autrui, sans contrepartie, des engagements jugés trop importants au moment de leur conclusion, eu égard à la situation de l'entreprise ou de la personne morale ;
4° Avoir payé ou fait payer, après cessation des paiements et en connaissance de cause de celle-ci, un créancier au préjudice des autres créanciers ;
5° Avoir, en s'abstenant volontairement de coopérer avec les organes de la procédure, fait obstacle à son bon déroulement ;
6° Avoir fait disparaître des documents comptables, ne pas avoir tenu de comptabilité lorsque les textes applicables en font obligation, ou avoir tenu une comptabilité fictive, manifestement incomplète ou irrégulière au regard des dispositions applicables.
Article L653-6
Le tribunal peut prononcer la faillite personnelle du dirigeant de la personne morale qui n'a pas acquitté les dettes de celle-ci mises à sa charge.
Article L653-7
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Dans les cas prévus aux articles L. 653-3 à L. 653-6 et L. 653-8, le tribunal est saisi par le mandataire judiciaire, le liquidateur ou le ministère public.
Dans l'intérêt collectif des créanciers, le tribunal peut également être saisi à toute époque de la procédure par la majorité des créanciers nommés contrôleurs lorsque le mandataire de justice ayant qualité pour agir n'a pas engagé les actions prévues aux mêmes articles, après une mise en demeure restée sans suite dans un délai et des conditions fixés par décret en Conseil d'Etat.
Le juge-commissaire ne peut ni siéger dans la formation de jugement, ni participer au délibéré.
Article L653-8
Dans les cas prévus aux articles L. 653-3 à L. 653-6, le tribunal peut prononcer, à la place de la faillite personnelle, l'interdiction de diriger, gérer, administrer ou contrôler, directement ou indirectement, soit toute entreprise commerciale ou artisanale, toute exploitation agricole et toute personne morale, soit une ou plusieurs de celles-ci.
L'interdiction mentionnée au premier alinéa peut également être prononcée à l'encontre de toute personne mentionnée à l'article L. 653-1 qui, de mauvaise foi, n'aura pas remis au mandataire judiciaire, à l'administrateur ou au liquidateur les renseignements qu'il est tenu de lui communiquer en application de l'article L. 622-6 dans le mois suivant le jugement d'ouverture.
Elle peut également être prononcée à l'encontre de toute personne mentionnée à l'article L. 653-1 qui a omis de demander l'ouverture d'une procédure de redressement ou de liquidation judiciaire dans le délai de quarante-cinq jours à compter de la cessation des paiements, sans avoir, par ailleurs, demandé l'ouverture d'une procédure de conciliation.
Article L653-9
Le droit de vote des dirigeants frappés de la faillite personnelle ou de l'interdiction prévue à l'article L. 653-8 est exercé dans les assemblées des personnes morales soumises à une procédure de redressement judiciaire ou de liquidation judiciaire par un mandataire désigné par le tribunal à cet effet, à la requête de l'administrateur, du liquidateur ou du commissaire à l'exécution du plan.
Le tribunal peut enjoindre à ces dirigeants ou à certains d'entre eux, de céder leurs actions ou parts sociales dans la personne morale ou ordonner leur cession forcée par les soins d'un mandataire de justice, au besoin après expertise. Le produit de la vente est affecté au paiement de la part des dettes sociales dans le cas où ces dettes ont été mises à la charge des dirigeants.
Article L653-10
Le tribunal qui prononce la faillite personnelle peut prononcer l'incapacité d'exercer une fonction publique élective. L'incapacité est prononcée pour une durée égale à celle de la faillite personnelle,
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dans la limite de cinq ans. Lorsque la décision est devenue définitive, le ministère public notifie à l'intéressé l'incapacité, qui produit effet à compter de la date de cette notification.
Article L653-11
Lorsque le tribunal prononce la faillite personnelle ou l'interdiction prévue à l'article L. 653-8, il fixe la durée de la mesure, qui ne peut être supérieure à quinze ans. Il peut ordonner l'exécution provisoire de sa décision. Les déchéances, les interdictions et l'incapacité d'exercer une fonction publique élective cessent de plein droit au terme fixé, sans qu'il y ait lieu au prononcé d'un jugement.
Le jugement de clôture pour extinction du passif, y compris après exécution d'une condamnation prononcée à son encontre en application de l'article L. 651-2, rétablit le débiteur personne physique ou les dirigeants de la personne morale dans tous leurs droits. Il les dispense ou relève de toutes les déchéances, interdictions et incapacité d'exercer une fonction publique élective.
L'intéressé peut demander au tribunal de le relever, en tout ou partie, des déchéances et interdictions et de l'incapacité d'exercer une fonction publique élective s'il a apporté une contribution suffisante au paiement du passif.
Lorsqu'il a fait l'objet de l'interdiction prévue à l'article L. 653-8, il peut en être relevé s'il présente toutes garanties démontrant sa capacité à diriger ou contrôler l'une ou plusieurs des entreprises ou personnes visées par le même article.
Lorsqu'il y a relèvement total des déchéances et interdictions et de l'incapacité, la décision du tribunal emporte réhabilitation.
Chapitre IV : De la banqueroute et des autres infractions.
Section 1 : De la banqueroute.
Article L654-1
Les dispositions de la présente section sont applicables :
1° A toute personne exerçant une activité commerciale ou artisanale, à tout agriculteur et à toute personne physique exerçant une activité professionnelle indépendante, y compris une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé ;
2° A toute personne qui a, directement ou indirectement, en droit ou en fait, dirigé ou liquidé une
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personne morale de droit privé ;
3° Aux personnes physiques représentants permanents de personnes morales dirigeants des personnes morales définies au 2° ci-dessus.
Article L654-2
En cas d'ouverture d'une procédure de redressement judiciaire ou de liquidation judiciaire, sont coupables de banqueroute les personnes mentionnées à l'article L. 654-1 contre lesquelles a été relevé l'un des faits ci-après :
1° Avoir, dans l'intention d'éviter ou de retarder l'ouverture de la procédure de redressement judiciaire ou de liquidation judiciaire, soit fait des achats en vue d'une revente au-dessous du cours, soit employé des moyens ruineux pour se procurer des fonds ;
2° Avoir détourné ou dissimulé tout ou partie de l'actif du débiteur ;
3° Avoir frauduleusement augmenté le passif du débiteur ;
4° Avoir tenu une comptabilité fictive ou fait disparaître des documents comptables de l'entreprise ou de la personne morale ou s'être abstenu de tenir toute comptabilité lorsque les textes applicables en font obligation ;
5° Avoir tenu une comptabilité manifestement incomplète ou irrégulière au regard des dispositions légales.
Article L654-3
La banqueroute est punie de cinq ans d'emprisonnement et de 75000 euros d'amende.
Article L654-4
Lorsque l'auteur ou le complice de banqueroute est un dirigeant d'une entreprise prestataire de services d'investissement, les peines sont portées à sept ans d'emprisonnement et 100 000 euros d'amende.
Article L654-5
Les personnes physiques coupables des infractions prévues par les articles L. 654-3 et L. 654-4 encourent également les peines complémentaires suivantes :
1° L'interdiction des droits civiques, civils et de famille, suivant les modalités de l'article 131-26 du code pénal ;
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2° L'interdiction, suivant les modalités prévues par l'article 131-27 du code pénal, soit d'exercer une fonction publique ou d'exercer l'activité professionnelle ou sociale dans l'exercice ou à l'occasion de l'exercice de laquelle l'infraction a été commise, soit d'exercer une profession commerciale ou industrielle, de diriger, d'administrer, de gérer ou de contrôler à un titre quelconque, directement ou indirectement, pour son propre compte ou pour le compte d'autrui, une entreprise commerciale ou industrielle ou une société commerciale. Ces interdictions d'exercice peuvent être prononcées cumulativement ;
3° L'exclusion des marchés publics pour une durée de cinq ans au plus ;
4° L'interdiction, pour une durée de cinq ans au plus, d'émettre des chèques autres que ceux qui permettent le retrait de fonds par le tireur auprès du tiré ou ceux qui sont certifiés ;
5° L'affichage ou la diffusion de la décision prononcée dans les conditions prévues par l'article 131-35 du code pénal.
Article L654-6
La juridiction répressive qui reconnaît l'une des personnes mentionnées à l'article L. 654-1 coupable de banqueroute peut, en outre, dans les conditions prévues au premier alinéa de l'article L. 653-11, prononcer soit la faillite personnelle de celle-ci, soit l'interdiction prévue à l'article L. 653-8, à moins qu'une juridiction civile ou commerciale ait déjà prononcé une telle mesure par une décision définitive prise à l'occasion des mêmes faits.
Article L654-7
Les personnes morales déclarées responsables pénalement des infractions prévues par les articles L. 654-3 et L. 654-4 encourent les peines suivantes :
1° L'amende, suivant les modalités prévues par l'article 131-38 du code pénal ;
2° Les peines mentionnées à l'article 131-39 du code pénal.
L'interdiction mentionnée au 2° de l'article 131-39 du code pénal porte sur l'activité dans l'exercice ou à l'occasion de l'exercice de laquelle l'infraction a été commise.
Section 2 : Des autres infractions.
Article L654-8
Est passible d'un emprisonnement de deux ans et d'une amende de 30 000 euros le fait :
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1° Pour toute personne mentionnée à l'article L. 654-1, de passer un acte ou d'effectuer un paiement en violation des dispositions de l'article L. 622-7 ;
2° Pour toute personne mentionnée à l'article L. 654-1, d'effectuer un paiement en violation des modalités de règlement du passif prévues au plan de sauvegarde ou au plan de redressement ou de faire un acte de disposition sans l'autorisation prévue par l'article L. 626-14 ;
3° Pour toute personne, pendant la période d'observation ou celle d'exécution du plan de sauvegarde ou du plan de redressement, en connaissance de la situation du débiteur, de passer avec celui-ci l'un des actes mentionnés aux 1° et 2° ou d'en recevoir un paiement irrégulier ;
4° Pour toute personne, de procéder à la cession d'un bien rendu inaliénable en application de l'article L. 642-10.
Article L654-9
Est puni des peines prévues par les articles L. 654-3 à L. 654-5 le fait :
1° Dans l'intérêt des personnes mentionnées à l'article L. 654-1, de soustraire, receler ou dissimuler tout ou partie des biens, meubles ou immeubles de celles-ci, le tout sans préjudice de l'application de l'article 121-7 du code pénal ;
2° Pour toute personne, de déclarer frauduleusement dans la procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire, soit en son nom, soit par interposition de personne, des créances supposées ;
3° Pour toute personne exerçant une activité commerciale, artisanale, agricole ou toute autre activité indépendante, sous le nom d'autrui ou sous un nom supposé, de se rendre coupable d'un des faits prévus à l'article L. 654-14.
Article L654-10
Le fait, pour le conjoint, les descendants ou les ascendants ou les collatéraux ou les alliés des personnes mentionnées à l'article L. 654-1, de détourner, divertir ou receler des effets dépendant de l'actif du débiteur soumis à une procédure de redressement judiciaire ou de liquidation judiciaire, est puni des peines prévues par l'article 314-1 du code pénal.
Article L654-11
Dans les cas prévus par les articles précédents, la juridiction saisie statue, lors même qu'il y aurait relaxe :
1° D'office, sur la réintégration dans le patrimoine du débiteur de tous les biens, droits ou actions qui ont été frauduleusement soustraits ;
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2° Sur les dommages et intérêts qui seraient demandés.
Article L654-12
I. - Est puni des peines prévues par l'article 314-2 du code pénal le fait, pour tout administrateur, mandataire judiciaire, liquidateur ou commissaire à l'exécution du plan :
1° De porter volontairement atteinte aux intérêts des créanciers ou du débiteur soit en utilisant à son profit des sommes perçues dans l'accomplissement de sa mission, soit en se faisant attribuer des avantages qu'il savait n'être pas dus ;
2° De faire, dans son intérêt, des pouvoirs dont il disposait, un usage qu'il savait contraire aux intérêts des créanciers ou du débiteur.
II. - Est puni des mêmes peines le fait, pour tout administrateur, mandataire judiciaire, liquidateur, commissaire à l'exécution du plan ou toute autre personne, à l'exception des représentants des salariés, de se rendre acquéreur pour son compte, directement ou indirectement, de biens du débiteur ou de les utiliser à son profit, ayant participé à un titre quelconque à la procédure. La juridiction saisie prononce la nullité de l'acquisition et statue sur les dommages et intérêts qui seraient demandés.
Article L654-13
Le fait, pour le créancier, après le jugement ouvrant la procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire, de passer une convention comportant un avantage particulier à la charge du débiteur est puni des peines prévues par l'article 314-1 du code pénal.
La juridiction saisie prononce la nullité de cette convention.
Article L654-14
Est puni des peines prévues aux articles L. 654-3 à L. 654-5 le fait, pour les personnes mentionnées aux 2° et 3° de l'article L. 654-1, de mauvaise foi, en vue de soustraire tout ou partie de leur patrimoine aux poursuites de la personne morale qui a fait l'objet d'un jugement d'ouverture de sauvegarde, de redressement judiciaire ou de liquidation judiciaire ou à celles des associés ou des créanciers de la personne morale, de détourner ou de dissimuler, ou de tenter de détourner ou de dissimuler, tout ou partie de leurs biens, ou de se faire frauduleusement reconnaître débitrice de sommes qu'elles ne devaient pas.
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Article L654-15
Le fait, pour toute personne, d'exercer une activité professionnelle ou des fonctions en violation des interdictions, déchéances ou incapacité prévues par les articles L. 653-2 et L. 653-8, est puni d'un emprisonnement de deux ans et d'une amende de 375 000 euros.
Section 3 : Des règles de procédures.
Article L654-16
Pour l'application des dispositions des sections 1 et 2 du présent chapitre, la prescription de l'action publique ne court que du jour du jugement ouvrant la procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire lorsque les faits incriminés sont apparus avant cette date.
Article L654-17
La juridiction répressive est saisie soit sur la poursuite du ministère public, soit sur constitution de partie civile de l'administrateur, du mandataire judiciaire, du représentant des salariés, du commissaire à l'exécution du plan, du liquidateur ou de la majorité des créanciers nommés contrôleurs agissant dans l'intérêt collectif des créanciers lorsque le mandataire de justice ayant qualité pour agir n'a pas agi, après une mise en demeure restée sans suite dans un délai et des conditions fixés par décret en Conseil d'Etat.
Article L654-18
Le ministère public peut requérir de l'administrateur ou du liquidateur la remise de tous les actes et documents détenus par ces derniers.
Article L654-19
Les frais de la poursuite intentée par l'administrateur, le mandataire judiciaire, le représentant des salariés, le commissaire à l'exécution du plan ou le liquidateur sont supportés par le Trésor public, en cas de relaxe.
En cas de condamnation, le Trésor public ne peut exercer son recours contre le débiteur qu'après la clôture des opérations de liquidation judiciaire.
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Article L654-20
Les jugements et arrêts de condamnation rendus en application du présent chapitre sont publiés aux frais du condamné.
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Partie législative
LIVRE VI : Des difficultés des entreprises.
TITRE VI : Des dispositions générales de procédure.
Chapitre Ier : Des voies de recours.
Article L661-1
I.-Sont susceptibles d'appel ou de pourvoi en cassation : 1° Les décisions statuant sur l'ouverture des procédures de sauvegarde ou de redressement judiciaire de la part du débiteur, du créancier poursuivant et du ministère public ; 2° Les décisions statuant sur l'ouverture de la liquidation judiciaire de la part du débiteur, du créancier poursuivant, du comité d'entreprise ou, à défaut, des délégués du personnel et du ministère public ; 3° Les décisions statuant sur l'extension d'une procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire de la part du débiteur soumis à la procédure, du débiteur visé par l'extension, du mandataire judiciaire ou du liquidateur, de l'administrateur et du ministère public ; 4° Les décisions statuant sur la conversion de la procédure de sauvegarde en redressement judiciaire de la part du débiteur, de l'administrateur, du mandataire judiciaire et du ministère public ; 5° Les décisions statuant sur le prononcé de la liquidation judiciaire au cours d'une période d'observation de la part du débiteur, de l'administrateur, du mandataire judiciaire, du comité d'entreprise ou, à défaut, des délégués du personnel et du ministère public ; 6° Les décisions statuant sur l'arrêté du plan de sauvegarde ou du plan de redressement de la part du débiteur, de l'administrateur, du mandataire judiciaire, du comité d'entreprise ou, à défaut, des délégués du personnel et du ministère public, ainsi que de la part du créancier ayant formé une contestation en application de l'article L. 626-34-1 ; 7° Les décisions statuant sur la modification du plan de sauvegarde ou du plan de redressement de la part du débiteur, du commissaire à l'exécution du plan, du comité d'entreprise ou, à défaut, des délégués du personnel et du ministère public, ainsi que de la part du créancier ayant formé une contestation en application de l'article L. 626-34-1 ; 8° Les décisions statuant sur la résolution du plan de sauvegarde ou du plan de redressement de la part du débiteur, du commissaire à l'exécution du plan, du comité d'entreprise ou, à défaut des délégués du personnel, du créancier poursuivant et du ministère public.
II.-L'appel du ministère public est suspensif, à l'exception de celui portant sur les décisions statuant sur l'ouverture de la procédure de sauvegarde ou de redressement judiciaire.
III.-En l'absence de comité d'entreprise ou de délégué du personnel, le représentant des salariés exerce les voies de recours ouvertes à ces institutions par le présent article.
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Article L661-2
Les décisions mentionnées aux 1° à 5° du I de l'article L. 661-1, à l'exception du 4°, sont susceptibles de tierce opposition. Le jugement statuant sur la tierce opposition est susceptible d'appel et de pourvoi en cassation de la part du tiers opposant.
Article L661-3
Les décisions arrêtant ou modifiant le plan de sauvegarde ou de redressement ou rejetant la résolution de ce plan sont susceptibles de tierce opposition.
Le jugement statuant sur la tierce opposition est susceptible d'appel et de pourvoi en cassation de la part du tiers opposant.
Il ne peut être exercé de tierce opposition contre les décisions rejetant l'arrêté ou la modification du plan de sauvegarde ou de redressement ou prononçant la résolution de ce plan.
Article L661-4
Les jugements ou ordonnances relatifs à la nomination ou au remplacement du juge-commissaire ne sont pas susceptibles de recours.
Article L661-6
I.-Ne sont susceptibles que d'un appel de la part du ministère public : 1° Les jugements ou ordonnances relatifs à la nomination ou au remplacement de l'administrateur, du mandataire judiciaire, du commissaire à l'exécution du plan, du liquidateur, des contrôleurs, du ou des experts ; 2° Les jugements statuant sur la durée de la période d'observation, sur la poursuite ou la cessation de l'activité. II.-Ne sont susceptibles que d'un appel de la part du débiteur ou du ministère public, les jugements relatifs à la modification de la mission de l'administrateur. III.-Ne sont susceptibles que d'un appel de la part soit du débiteur, soit du ministère public, soit du cessionnaire ou du cocontractant mentionné à l'article L. 642-7 les jugements qui arrêtent ou rejettent le plan de cession de l'entreprise. Le cessionnaire ne peut interjeter appel du jugement arrêtant le plan de cession que si ce dernier lui impose des charges autres que les engagements qu'il a souscrits au cours de la préparation du plan. Le cocontractant mentionné à l'article L. 642-7 ne peut interjeter appel que de la partie du jugement qui emporte cession du contrat. IV.-Ne sont susceptibles que d'un appel de la part du ministère public ou du cessionnaire, dans les limites mentionnées à l'alinéa précédent, les jugements modifiant le plan de cession. V.-Ne sont susceptibles que d'un appel de la part du débiteur, de l'administrateur, du liquidateur, du cessionnaire et du ministère public les jugements statuant sur la résolution du plan de cession. VI.-L'appel du ministère public est suspensif.
Article L661-7
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Il ne peut être exercé de tierce opposition ou de recours en cassation ni contre les jugements mentionnés à l'article L. 661-6, ni contre les arrêts rendus en application des I et II du même article.
Le pourvoi en cassation n'est ouvert qu'au ministère public à l'encontre des arrêts rendus en application du III, IV et V de l'article L. 661-6.
Article L661-8
Lorsque le ministère public doit avoir communication des procédures de sauvegarde, de redressement judiciaire ou de liquidation judiciaire et des causes relatives à la responsabilité des dirigeants sociaux, le pourvoi en cassation pour défaut de communication n'est ouvert qu'à lui seul.
Article L661-9
En cas d'infirmation du jugement imposant de renvoyer l'affaire devant le tribunal, la cour d'appel peut ouvrir une nouvelle période d'observation. Cette période est d'une durée maximale de trois mois.
En cas d'appel du jugement statuant sur la liquidation judiciaire au cours de la période d'observation ou arrêtant ou rejetant le plan de sauvegarde ou le plan de redressement judiciaire et lorsque l'exécution provisoire est arrêtée, la période d'observation est prolongée jusqu'à l'arrêt de la cour d'appel.
Article L661-10
Pour l'application du présent titre, les membres du comité d'entreprise ou les délégués du personnel désignent parmi eux la personne habilitée à exercer en leur nom les voies de recours.
Article L661-11
Les décisions rendues en application des chapitres Ier, II et III du titre V sont susceptibles d'appel de la part du ministère public .
L'appel du ministère public est suspensif.
Article L661-12
Les recours du ministère public prévus par le présent chapitre lui sont ouverts même s'il n'a pas agi
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comme partie principale.
Chapitre II : Autres dispositions.
Article L662-1
Aucune opposition ou procédure d'exécution de quelque nature qu'elle soit sur les sommes versées à la Caisse des dépôts et consignations n'est recevable.
Article L662-2
Lorsque les intérêts en présence le justifient, la cour d'appel peut décider de renvoyer l'affaire devant une autre juridiction de même nature, compétente dans le ressort de la cour, pour connaître du mandat ad hoc, de la procédure de conciliation ou des procédures de sauvegarde, de redressement judiciaire ou de liquidation judiciaire, dans des conditions fixées par décret. La Cour de cassation, saisie dans les mêmes conditions, peut renvoyer l'affaire devant une juridiction du ressort d'une autre cour d'appel.
Article L662-3
Les débats devant le tribunal de commerce et le tribunal de grande instance ont lieu en chambre du conseil. Néanmoins, la publicité des débats est de droit après l'ouverture de la procédure si le débiteur, le mandataire judiciaire, l'administrateur, le liquidateur, le représentant des salariés ou le ministère public en font la demande. Le président du tribunal peut décider qu'ils auront lieu ou se poursuivront en chambre du conseil s'il survient des désordres de nature à troubler la sérénité de la justice.
Par dérogation aux dispositions du premier alinéa, les débats relatifs aux mesures prises en application des chapitres Ier et III du titre V ont lieu en audience publique. Le président du tribunal peut décider qu'ils ont lieu en chambre du conseil si l'une des personnes mises en cause le demande avant leur ouverture.
Article L662-4
Tout licenciement envisagé par l'administrateur, l'employeur ou le liquidateur, selon le cas, du représentant des salariés mentionné aux articles L. 621-4 et L. 641-1 est obligatoirement soumis au comité d'entreprise, qui donne un avis sur le projet de licenciement.
Le licenciement ne peut intervenir que sur autorisation de l'inspecteur du travail dont dépend l'établissement. Lorsqu'il n'existe pas de comité d'entreprise dans l'établissement, l'inspecteur du travail est saisi directement.
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Toutefois, en cas de faute grave, l'administrateur, l'employeur ou le liquidateur, selon le cas, a la faculté de prononcer la mise à pied immédiate de l'intéressé en attendant la décision définitive. En cas de refus de licenciement, la mise à pied est annulée et ses effets supprimés de plein droit.
La protection instituée en faveur du représentant des salariés pour l'exercice de sa mission fixée à l'article L. 625-2 cesse lorsque toutes les sommes versées au mandataire judiciaire par les institutions mentionnées à l'article L. 143-11-4 du code du travail, en application du dixième alinéa de l'article L. 143-11-7 dudit code, ont été reversées par ce dernier aux salariés.
Lorsque le représentant des salariés exerce les fonctions du comité d'entreprise ou, à défaut, des délégués du personnel, la protection cesse au terme de la dernière audition ou consultation prévue par la procédure de redressement judiciaire.
Article L662-5
Les fonds détenus par les syndics au titre des procédures de règlement judiciaire ou de liquidation des biens régies par la loi n° 67-563 du 13 juillet 1967 sur le règlement judiciaire, la liquidation des biens, la faillite personnelle et les banqueroutes sont immédiatement versés en compte de dépôt à la Caisse des dépôts et consignations. En cas de retard, le syndic doit, pour les sommes qu'il n'a pas versées, un intérêt dont le taux est égal au taux de l'intérêt légal majoré de cinq points.
Article L662-6
Le greffe du tribunal de commerce et celui du tribunal de grande instance établissent au terme de chaque semestre la liste des administrateurs judiciaires et des mandataires judiciaires désignés par la juridiction et des autres personnes auxquelles un mandat afférent aux procédures régies par le présent livre a été confié par ladite juridiction, pendant cette période. Ils y font figurer, pour chacun des intéressés, l'ensemble des dossiers qui lui ont été attribués et les informations relatives aux débiteurs concernés prévues par décret en Conseil d'Etat.
Ces informations sont portées à la connaissance du garde des sceaux, ministre de la justice, du ministère public du ressort concerné et des autorités chargées du contrôle et de l'inspection des administrateurs et des mandataires judiciaires, selon des modalités déterminées par un décret en Conseil d'Etat.
Chapitre III : Des frais de procédure.
Article L663-1
I.-Lorsque les fonds disponibles du débiteur n'y peuvent suffire immédiatement, le Trésor public, sur ordonnance motivée du juge-commissaire, fait l'avance des droits, taxes, redevances ou
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émoluments perçus par les greffes des juridictions, des débours tarifés et des émoluments dus aux avoués et des rémunérations des avocats dans la mesure où elles sont réglementées, des frais de signification et de publicité et de la rémunération des techniciens désignés par la juridiction après accord du ministère public, afférents :
1° Aux décisions qui interviennent au cours de la procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire rendues dans l'intérêt collectif des créanciers ou du débiteur ;
2° A l'exercice des actions tendant à conserver ou à reconstituer le patrimoine du débiteur ou exercées dans l'intérêt collectif des créanciers ;
3° Et à l'exercice des actions visées aux articles L. 653-3 à L. 653-6.
L'accord du ministère public n'est pas nécessaire pour l'avance de la rémunération des officiers publics désignés par le tribunal en application des articles L. 621-4, L. 621-12, L. 622-6-1, L. 622-10, L. 631-9 ou L. 641-1 pour réaliser l'inventaire prévu à l'article L. 622-6 et, le cas échéant, la prisée des actifs du débiteur.
II.-Le Trésor public sur ordonnance motivée du président du tribunal, fait également l'avance des mêmes frais afférents à l'exercice de l'action en résolution et en modification du plan.
III.-Ces dispositions sont applicables aux procédures d'appel ou de cassation de toutes les décisions mentionnées ci-dessus.
IV.-Pour le remboursement de ses avances, le Trésor public est garanti par le privilège des frais de justice.
Article L663-2
Un décret en Conseil d'Etat fixe les modalités de rémunération des administrateurs judiciaires, des mandataires judiciaires, des commissaires à l'exécution du plan et des liquidateurs. Cette rémunération est exclusive de toute autre rémunération ou remboursement de frais au titre de la même procédure ou au titre d'une mission subséquente qui n'en serait que le prolongement.
Article L663-3
Lorsque le produit de la réalisation des actifs de l'entreprise ne permet pas au liquidateur ou au mandataire judiciaire d'obtenir, au titre de la rémunération qui lui est due en application des dispositions de l'article L. 663-2, une somme au moins égale à un seuil fixé par décret en Conseil d'Etat, le dossier est déclaré impécunieux par décision du tribunal, sur proposition du juge-commissaire et au vu des justificatifs présentés par le liquidateur ou le mandataire judiciaire.
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La même décision fixe la somme correspondant à la différence entre la rémunération effectivement perçue par le liquidateur ou le mandataire judiciaire et le seuil visé au premier alinéa.
La somme versée au mandataire judiciaire ou au liquidateur est prélevée sur une quote-part des intérêts servis par la Caisse des dépôts et consignations sur les fonds déposés en application des articles L. 622-18, L. 626-25 et L. 641-8. Cette quote-part est spécialement affectée à un fonds géré par la Caisse des dépôts et consignations sous le contrôle d'un comité d'administration. Les conditions d'application du présent alinéa sont fixées par un décret en Conseil d'Etat.
Article L663-4
Le juge-commissaire a droit, sur l'actif du débiteur, au remboursement de ses frais de déplacement.
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Partie législative
LIVRE VI : Des difficultés des entreprises.
TITRE VII : Dispositions dérogatoires particulières aux départements de la Moselle, du Bas-Rhin et du Haut-Rhin.
Article L670-1
Les dispositions du présent titre sont applicables aux personnes physiques, domiciliées dans les départements de la Moselle, du Bas-Rhin et du Haut-Rhin, et à leur succession, qui ne sont ni des agriculteurs, ni des personnes exerçant une activité commerciale, artisanale ou toute autre activité professionnelle indépendante, y compris une profession libérale soumise à un statut législatif ou réglementaire, lorsqu'elles sont de bonne foi et en état d'insolvabilité notoire. Les dispositions des titres II à VI du présent livre s'appliquent dans la mesure où elles ne sont pas contraires à celles du présent titre.
Avant qu'il ne soit statué sur l'ouverture de la procédure, le tribunal commet, s'il l'estime utile, une personne compétente choisie dans la liste des organismes agréés, pour recueillir tous renseignements sur la situation économique et sociale du débiteur.
Les déchéances et interdictions qui résultent de la faillite personnelle ne sont pas applicables à ces personnes.
Les modalités d'application du présent article sont fixées par décret.
Article L670-2
Le juge-commissaire peut ordonner la dispense de l'inventaire des biens des personnes visées à l'article L. 670-1.
Article L670-3
Il n'est pas procédé, en cas de liquidation judiciaire, à la vérification des créances s'il apparaît que le produit de la réalisation de l'actif sera entièrement absorbé par les frais de justice, sauf décision contraire du juge-commissaire.
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Article L670-4
Lors de la clôture des opérations de liquidation judiciaire, le tribunal peut, à titre exceptionnel, imposer au débiteur une contribution destinée à l'apurement du passif dans les proportions qu'il détermine. Le tribunal désigne dans ce jugement un commissaire chargé de veiller à l'exécution de la contribution.
Pour fixer les proportions de la contribution, le tribunal prend en compte les facultés contributives du débiteur déterminées au regard de ses ressources et charges incompressibles. Le tribunal réduit le montant de la contribution en cas de diminution des ressources ou d'augmentation des charges du contributeur.
Son paiement doit être effectué dans un délai de deux ans.
Les modalités d'application du présent article sont fixées par décret.
Article L670-5
Outre les cas prévus à l'article L. 643-11, les créanciers recouvrent également leur droit de poursuite individuelle à l'encontre du débiteur lorsque le tribunal constate, d'office ou à la demande du commissaire, l'inexécution de la contribution visée à l'article L. 670-4.
Article L670-6
Le jugement prononçant la liquidation judiciaire est mentionné pour une durée de huit ans au fichier prévu à l'article L. 333-4 du code de la consommation et ne fait plus l'objet d'une mention au casier judiciaire de l'intéressé.
Article L670-7
L'assiette et la liquidation de la taxe sur les frais de justice en matière de redressement ou de liquidation judiciaire sont provisoirement réglées conformément aux dispositions des lois locales.
Article L670-8
Les dispositions de l'article 1er de la loi n° 75-1256 du 27 décembre 1975 relative à certaines ventes de biens immeubles dans les départements du Haut-Rhin, du Bas-Rhin et de la Moselle cessent
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d'être applicables aux ventes forcées d'immeubles compris dans le patrimoine d'un débiteur ayant fait l'objet d'une procédure de redressement judiciaire ouverte postérieurement au 1er janvier 1986.
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Partie législative
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce.
TITRE Ier : Du réseau des chambres de commerce et d'industrie.
Article L710-1
Le réseau des chambres de commerce et d'industrie se compose des chambres de commerce et d'industrie, des chambres régionales de commerce et d'industrie, des groupements interconsulaires que peuvent former plusieurs chambres entre elles et de l'assemblée des chambres françaises de commerce et d'industrie. Il contribue au développement économique des territoires, des entreprises et de leurs associations en remplissant en faveur des acteurs économiques, dans des conditions fixées par décret, des missions de service public, des missions d'intérêt général et, à son initiative, des missions d'intérêt collectif. Les établissements qui le composent ont, dans le respect de leurs compétences respectives, auprès des pouvoirs publics, une fonction de représentation des intérêts de l'industrie, du commerce et des services, sans préjudice des missions de représentation conférées aux organisations professionnelles ou interprofessionnelles par les dispositions législatives ou réglementaires.
Ces établissements sont des établissements publics placés sous la tutelle de l'Etat et administrés par des dirigeants d'entreprise élus. Leurs ressources proviennent des impositions qui leur sont affectées, de la vente ou de la rémunération de leurs activités ou des services qu'ils gèrent, des dividendes et autres produits des participations qu'ils détiennent dans leurs filiales, des subventions, dons et legs qui leur sont consentis et de toute autre ressource légale entrant dans leur spécialité.
Dans des conditions définies par décret, ils peuvent transiger et compromettre. Ils sont soumis, pour leurs dettes, aux dispositions de la loi n° 68-1250 du 31 décembre 1968 relative à la prescription des créances sur l'Etat, les départements, les communes et les établissements publics.
Ils peuvent, avec l'accord de l'autorité de tutelle, participer à la création et au capital de sociétés civiles et de sociétés par actions dont l'objet social entre dans le champ de leurs compétences.
Chapitre Ier : De l'organisation et des missions du réseau des chambres de commerce et d'industrie.
Section 1 : Les chambres de commerce et d'industrie.
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Article L711-1
Les chambres de commerce et d'industrie sont créées par un décret qui fixe notamment leur circonscription et leur siège. Toute modification est opérée dans les mêmes formes.
Article L711-2
Les chambres de commerce et d'industrie représentent auprès des pouvoirs publics les intérêts de l'industrie, du commerce et des services de leur circonscription.
A ce titre :
1° Elles sont consultées par l'Etat sur les règlements relatifs aux usages commerciaux ;
2° Elles peuvent être consultées par les collectivités territoriales et leurs établissements publics sur leurs projets de développement économique, de création d'infrastructures et de dispositifs d'assistance aux entreprises et sur leurs projets en matière de formation professionnelle ;
3° Elles peuvent également être consultées par l'Etat, les collectivités territoriales et leurs établissements publics sur toute question relative à l'industrie, au commerce, aux services, au développement économique, à la formation professionnelle, à l'aménagement du territoire et à l'environnement intéressant leur circonscription. Elles peuvent, de leur propre initiative, émettre des avis et des voeux sur ces mêmes questions ;
4° Dans les conditions précisées à l'article L. 121-4 du code de l'urbanisme, elles sont associées à l'élaboration des schémas de cohérence territoriale et des plans locaux d'urbanisme et peuvent, à leur initiative, réaliser les documents nécessaires à la préparation des documents prévisionnels d'organisation commerciale.
Article L711-3
Les chambres de commerce et d'industrie ont une mission de service aux entreprises industrielles, commerciales et de services de leur circonscription.
Pour l'exercice de cette mission, elles créent et gèrent des centres de formalités des entreprises et apportent à celles-ci toutes informations et tous conseils utiles pour leur développement.
Elles peuvent également créer et assurer directement d'autres dispositifs de conseil et d'assistance aux entreprises, dans le respect du droit de la concurrence et sous réserve de la tenue d'une comptabilité analytique.
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Article L711-4
Les chambres de commerce et d'industrie contribuent au développement économique du territoire.
A ce titre :
1° Elles peuvent, pour des considérations d'intérêt général ou en cas de carence de l'initiative privée, assurer la maîtrise d'ouvrage ou la maîtrise d'oeuvre de tout projet d'infrastructure ou d'équipement et gérer tout service concourant à l'exercice de leurs missions ;
2° Elles peuvent également recevoir délégation de l'Etat, des collectivités territoriales et de leurs établissements publics pour créer ou gérer tout équipement, infrastructure ou service qui intéresse l'exercice de leurs missions. Elles peuvent notamment se voir confier, dans ce cadre, des délégations de service public en matière d'aéroports, de ports maritimes et de voies navigables.
Sauf, le cas échéant, pour les services correspondant à une délégation de service public, ces missions sont exercées dans le cadre de structures juridiques distinctes dans des conditions définies par décret.
Pour la réalisation d'équipements commerciaux, les chambres de commerce et d'industrie peuvent se voir déléguer le droit de préemption urbain et être titulaires ou délégataires du droit de préemption institué dans les zones d'aménagement différé.
Article L711-5
Les chambres de commerce et d'industrie peuvent créer et administrer, à titre principal ou en association avec d'autres partenaires, tout établissement de formation professionnelle, initiale ou continue, dans les conditions prévues aux articles L. 443-1 et L. 753-1 du code de l'éducation et, pour la formation continue, dans le respect du droit de la concurrence et sous réserve de la tenue d'une comptabilité analytique.
Elles peuvent, en liaison avec les organisations professionnelles, créer des fonds d'assurance-formation dans les conditions prévues par l'article L. 961-10 du code du travail.
Section 2 : Les chambres régionales de commerce et d'industrie
Article L711-6
Les chambres régionales de commerce et d'industrie sont créées par un décret qui fixe notamment leur circonscription et leur siège. Toute modification est opérée dans les mêmes formes.
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Article L711-7
Les chambres régionales de commerce et d'industrie représentent auprès des pouvoirs publics les intérêts de l'industrie, du commerce et des services pour toute question dont la portée excède le ressort d'une des chambres de leur circonscription.
A ce titre :
1° Elles sont consultées par le conseil régional sur le schéma régional de développement économique et, plus généralement, sur tout dispositif d'assistance aux entreprises dont la région envisage la création ;
2° Elles peuvent également être consultées par l'Etat, par les organes de la région et par les autres collectivités territoriales ou par leurs établissements publics sur toute question relative à l'industrie, au commerce, aux services, au développement économique, à la formation professionnelle, à l'aménagement du territoire et à l'environnement dans leur région, dès lors que la portée de cette question excède le ressort d'une des chambres de leur circonscription ; elles peuvent, de leur propre initiative, émettre des avis et des voeux sur ces mêmes questions ;
3° Elles sont associées à l'élaboration du schéma régional d'aménagement et de développement du territoire et du plan régional de développement des formations professionnelles.
Article L711-8
Les chambres régionales de commerce et d'industrie ont une mission d'animation du réseau des chambres de commerce et d'industrie de leur circonscription.
A ce titre :
1° Elles veillent à la cohérence des actions et des avis des chambres de commerce et d'industrie dans leur circonscription ;
2° Elles établissent, dans des conditions définies par décret en Conseil d'Etat, un schéma directeur qui définit le réseau consulaire dans leur circonscription en prenant en compte la viabilité économique, la justification opérationnelle et la proximité des électeurs ;
3° Elles élaborent des schémas sectoriels dans des domaines définis par décret.
Article L711-9
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Les chambres régionales de commerce et d'industrie veillent à la mise à disposition des ressortissants des chambres de commerce et d'industrie de leur circonscription, de services et prestations dont la nature et les modalités sont fixées par décret.
Elles peuvent également créer, assurer directement ou coordonner des dispositifs de conseil et d'assistance aux entreprises et des actions de formation professionnelle dont l'objet excède le ressort d'une des chambres de commerce et d'industrie de leur circonscription ou d'un groupement de plusieurs d'entre elles.
Article L711-10
Les chambres régionales de commerce et d'industrie contribuent à l'animation économique du territoire régional.
A ce titre :
1° Elles peuvent assurer au titre de leurs missions propres, pour des considérations d'intérêt général ou en cas de carence de l'initiative privée, la mise en oeuvre de tout projet de développement économique. Elles le peuvent également par délégation de l'Etat, agissant en son nom propre ou au nom de l'Union européenne, de la région et d'autres collectivités territoriales et de leurs établissements publics ;
2° Elles peuvent également recevoir délégation de l'Etat, agissant en son nom propre ou au nom de l'Union européenne, de la région et d'autres collectivités territoriales et de leurs établissements publics, pour créer ou gérer des équipements, des infrastructures ou des services. Elles peuvent notamment se voir confier dans ce cadre des délégations de service public en matière d'aéroports, de ports maritimes et de voies navigables.
Sauf, le cas échéant, pour les services correspondant à une délégation de service public, ces missions sont exercées dans le cadre de structures juridiques distinctes, dans des conditions définies par décret.
Section 3 : L'assemblée des chambres françaises de commerce et d'industrie.
Article L711-11
L'assemblée des chambres françaises de commerce et d'industrie représente, auprès de l'Etat et de l'Union européenne ainsi qu'au plan international, les intérêts nationaux de l'industrie, du commerce et des services.
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A ce titre, elle donne des avis soit à la demande des pouvoirs publics, soit de sa propre initiative sur toutes les questions relatives à l'industrie, au commerce, aux services, au développement économique, à la formation professionnelle, à l'aménagement du territoire et à l'environnement.
Article L711-12
L'assemblée des chambres françaises de commerce et d'industrie assure l'animation de l'ensemble du réseau des chambres de commerce et d'industrie.
A ce titre :
1° Elle définit, sous forme de cahier des charges, des normes d'intervention pour les établissements membres du réseau et s'assure du respect de ces normes ;
2° Elle apporte au réseau son appui dans les domaines technique, juridique et financier ;
3° Elle définit la politique générale du réseau en matière de gestion des personnels des chambres et négocie et signe les accords nationaux en matière sociale applicables aux personnels des chambres ;
4° Elle coordonne les actions du réseau avec celles des chambres de commerce et d'industrie françaises à l'étranger.
Chapitre II : De l'administration des établissements du réseau des chambres de commerce et d'industrie
Article L712-1
Dans chaque établissement public du réseau, l'assemblée générale des membres élus détermine les orientations et le programme d'action de l'établissement. A cette fin, elle délibère sur toutes les affaires relatives à l'objet de celui-ci, notamment le budget, les comptes et le règlement intérieur. Elle peut déléguer aux autres instances de l'établissement des compétences relatives à son administration et à son fonctionnement courant.
Le président est le représentant légal de l'établissement. Il en est l'ordonnateur et est responsable de sa gestion. Il en préside l'assemblée générale et les autres instances délibérantes. Un décret en Conseil d'Etat détermine les conditions dans lesquelles lui sont appliquées les dispositions de l'article 7 de la loi n° 84-834 du 13 septembre 1984 relative à la limite d'âge dans la fonction publique et le secteur public. Les fonctions de trésorier sont exercées par un membre de l'assemblée générale.
Article L712-2
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Il est pourvu aux dépenses ordinaires des chambres de commerce et d'industrie au moyen d'une taxe additionnelle à la taxe professionnelle.
Article L712-3
Les chambres de commerce peuvent affecter tout ou partie des excédents de recettes, provenant de la gestion de leur service ordinaire, à la constitution d'un fonds de réserve en vue de faire face aux dépenses urgentes et imprévues. Le montant de ce fonds de réserve, qui est mentionné dans les comptes et budgets de ce service à un article spécial, ne peut, en aucun cas, être supérieur à la moitié de la totalité des ressources annuelles dudit budget.
Article L712-4
Un établissement public du réseau des chambres de commerce et d'industrie de la région qui n'a pas délibéré favorablement pour mettre en oeuvre le schéma directeur prévu à l'article L. 711-8 ou dont l'autorité compétente constate qu'il n'a pas respecté les dispositions prévues audit schéma ne peut contracter d'emprunts.
Article L712-5
Une chambre régionale de commerce et d'industrie peut, dans des conditions définies par décret, abonder le budget d'une chambre de commerce et d'industrie de sa circonscription pour subvenir à des dépenses exceptionnelles ou faire face à des circonstances particulières.
Article L712-6
Les établissements de réseau sont tenus de nommer au moins un commissaire aux comptes et un suppléant choisis sur la liste mentionnée à l'article L. 822-1, qui exercent leurs fonctions dans les conditions prévues par les dispositions du livre II sous réserve des règles qui leur sont propres.
Les peines prévues par l'article L. 242-8 sont applicables aux dirigeants qui n'auront pas, chaque année, établi un bilan, un compte de résultat et une annexe.
Article L712-7
L'autorité compétente veille au fonctionnement régulier des établissements du réseau. Elle assiste de droit à leurs instances délibérantes. Certaines délibérations, notamment celles mentionnées au 2° de
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l'article L. 711-8, sont soumises à son approbation dans des conditions fixées par voie réglementaire.
Article L712-8
Lorsque le budget prévisionnel d'un établissement ou le budget exécuté au cours de l'exercice écoulé fait apparaître un déficit non couvert par les excédents disponibles, que des dépenses obligatoires n'ont pas été inscrites au budget ou n'ont pas été mandatées, ou que des dysfonctionnements graves, mettant en péril l'équilibre financier de l'établissement, sont constatés, l'autorité compétente, après application d'une procédure contradictoire, arrête le budget et peut confier au trésorier-payeur général les fonctions de trésorier.
Article L712-9
Tout membre élu d'un établissement public du réseau peut être suspendu ou déclaré démissionnaire d'office par l'autorité compétente, après procédure contradictoire, en cas de faute grave dans l'exercice de ses fonctions.
Lorsque les circonstances compromettent le fonctionnement d'un établissement, l'autorité compétente peut prononcer la suspension de ses instances et nommer une commission provisoire.
Au besoin, il est recouru à la dissolution des instances de l'établissement par décision de l'autorité compétente.
Article L712-10
Un décret en Conseil d'Etat précise les conditions d'application du présent chapitre, en particulier les règles de fonctionnement administratif et financier des établissements du réseau ainsi que les modalités de la tutelle exercée par l'Etat.
Chapitre III : De l'élection des membres des chambres de commerce et d'industrie et des délégués consulaires.
Section 1 : De l'élection des membres des chambres de commerce et d'industrie.
Article L713-1
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I.-Les membres des chambres de commerce et d'industrie sont élus pour cinq ans.
Un membre d'une chambre de commerce et d'industrie ou d'une chambre régionale de commerce et d'industrie ne peut exercer plus de trois mandats de président de cette chambre, quelle que soit la durée effective de ces mandats.
II.-Sont électeurs aux élections des membres des chambres de commerce et d'industrie :
1° A titre personnel :
a) Les commerçants immatriculés au registre du commerce et des sociétés dans la circonscription de la chambre de commerce et d'industrie, sous réserve, pour les associés en nom collectif et les associés commandités, des dispositions du III de l'article L. 713-2 ;
b) Les chefs d'entreprise inscrits au répertoire des métiers et immatriculés au registre du commerce et des sociétés dans la circonscription ;
c) Les conjoints des personnes énumérées au a ou au b ci-dessus ayant déclaré au registre du commerce et des sociétés qu'ils collaborent à l'activité de leur époux sans autre activité professionnelle ;
2° Par l'intermédiaire d'un représentant :
a) Les sociétés commerciales au sens du deuxième alinéa de l'article L. 210-1 du présent code et les établissements publics à caractère industriel et commercial dont le siège est situé dans la circonscription ;
b) Au titre d'un établissement faisant l'objet dans la circonscription d'une inscription complémentaire ou d'une immatriculation secondaire, à moins qu'il en soit dispensé par les lois et règlements en vigueur, les personnes physiques mentionnées aux a et b du 1° et les personnes morales mentionnées au a du présent 2°, quelle que soit la circonscription où ces personnes exercent leur propre droit de vote ;
c) Les sociétés à caractère commercial dont le siège est situé hors du territoire national et qui disposent dans la circonscription d'un établissement immatriculé au registre du commerce et des sociétés.
Article L713-2
I.-Au titre de leur siège social et de l'ensemble de leurs établissements situés dans la circonscription de la chambre de commerce et d'industrie, les personnes physiques ou morales mentionnées aux 1° et 2° du II de l'article L. 713-1 disposent :
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1° D'un représentant supplémentaire, lorsqu'elles emploient dans la circonscription de la chambre de commerce et d'industrie de dix à quarante-neuf salariés ;
2° De deux représentants supplémentaires, lorsqu'elles emploient dans la circonscription de cinquante à cent quatre-vingt-dix-neuf salariés ;
3° De trois représentants supplémentaires, lorsqu'elles emploient dans la circonscription de deux cents à quatre cent quatre-vingt-dix-neuf salariés ;
4° De quatre représentants supplémentaires, lorsqu'elles emploient dans la circonscription de cinq cents à mille neuf cent quatre-vingt-dix-neuf salariés ;
5° De cinq représentants supplémentaires, lorsqu'elles emploient dans la circonscription deux mille salariés ou plus.
II.-Toutefois, les personnes physiques énumérées aux a et b du 1° du II de l'article L. 713-1 dont le conjoint bénéficie des dispositions du c du 1° du II du même article ne désignent aucun représentant supplémentaire si elles emploient moins de cinquante salariés dans la circonscription de la chambre de commerce et d'industrie.
III.-Les sociétés en nom collectif et les sociétés en commandite désignent par délibération expresse conformément aux dispositions statutaires un représentant unique au titre des associés et de la société, sans préjudice de la possibilité de désigner des représentants supplémentaires en application du I ci-dessus.
Article L713-3
I.-Les représentants mentionnés aux articles L. 713-1 et L. 713-2 doivent exercer dans l'entreprise soit des fonctions de président-directeur général, de président ou de membre du conseil d'administration, de directeur général, de président ou de membre du directoire, de président du conseil de surveillance, de gérant, de président ou de membre du conseil d'administration ou de directeur d'un établissement public à caractère industriel et commercial, soit, à défaut et pour les représenter à titre de mandataire, des fonctions impliquant des responsabilités de direction commerciale, technique ou administrative de l'entreprise ou de l'établissement.
II.-Les électeurs à titre personnel mentionnés au 1° du II de l'article L. 713-1 et les représentants des personnes physiques ou morales mentionnées au 2° du II du même article doivent être ressortissants d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen.
Ils doivent, en outre, pour prendre part au vote :
1° Remplir les conditions fixées à l'article L. 2 du code électoral, à l'exception de la nationalité ;
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2° Ne pas avoir fait l'objet de l'interdiction visée à l'article L. 6 du code électoral ;
3° N'avoir pas été frappés depuis moins de quinze ans à compter du jour où la décision les ayant prononcées est devenue définitive, de faillite personnelle ou d'une des mesures d'interdiction ou de déchéance telles que prévues au livre VI du présent code, à la loi n° 85-98 du 25 janvier 1985 relative au redressement et à la liquidation judiciaires des entreprises ou à la loi n° 67-563 du 13 juillet 1967 sur le règlement judiciaire, la liquidation des biens, la faillite personnelle et les banqueroutes ;
4° Ne pas être frappé d'une peine d'interdiction, suivant les modalités prévues par l'article 131-27 du code pénal, d'exercer une profession commerciale ou industrielle, de diriger, d'administrer, de gérer ou de contrôler à un titre quelconque, directement ou indirectement, pour son propre compte ou pour le compte d'autrui, une entreprise commerciale ou industrielle ou une société commerciale ;
5° Ne pas avoir été condamnés à des peines, déchéances ou sanctions prononcées en vertu de législations en vigueur dans les Etats membres de la Communauté européenne ou dans les Etats parties à l'accord sur l'Espace économique européen équivalentes à celles visées aux 2°, 3° et 4°.
Article L713-4
I. - Sont éligibles aux fonctions de membre d'une chambre de commerce et d'industrie, sous réserve d'être âgés de dix-huit ans accomplis et de satisfaire aux conditions fixées au II de l'article L. 713-3 :
1° Les électeurs à titre personnel mentionnés au 1° du II de l'article L. 713-1 inscrits sur la liste électorale de la circonscription correspondante et justifiant qu'ils sont immatriculés depuis deux ans au moins au registre du commerce et des sociétés ;
2° Les électeurs inscrits en qualité de représentant, mentionnés au 2° du II de l'article L. 713-1 et à l'article L. 713-2, inscrits sur la liste électorale de la circonscription et justifiant que l'entreprise qu'ils représentent exerce son activité depuis deux ans au moins.
II. - Tout membre d'une chambre de commerce et d'industrie qui cesse de remplir les conditions d'éligibilité fixées au I ci-dessus présente sa démission au préfet. A défaut, le préfet le déclare démissionnaire d'office.
Toutefois, une cessation d'activité inférieure à six mois n'entraîne pas la démission, sauf dans les cas mentionnés aux 2°, 3°, 4° et 5° du II de l'article L. 713-3.
Article L713-5
I. - En cas de dissolution d'une chambre de commerce et d'industrie, il est procédé à son renouvellement dans un délai de six mois.
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Toutefois, si cette dissolution est prononcée moins d'un an avant un renouvellement général, il n'est pas procédé au renouvellement.
II. - Lorsque le nombre de membres d'une chambre de commerce et d'industrie se trouve réduit à moins de la moitié du nombre initial, le préfet constate la situation par arrêté et organise de nouvelles élections pour la totalité des sièges dans un délai de six mois.
Toutefois, si cette situation est constatée moins d'un an avant un renouvellement général, il n'est pas procédé au renouvellement.
III. - Les membres élus en application du présent article demeurent en fonction pour la durée restant à courir du mandat du titulaire initial.
Section 2 : De l'élection des délégués consulaires.
Article L713-6
Les délégués consulaires sont élus pour cinq ans dans la circonscription de chaque chambre de commerce et d'industrie.
Toutefois, aucun délégué consulaire n'est élu dans la circonscription ou partie de circonscription située dans le ressort d'un tribunal compétent en matière commerciale ne comprenant aucun juge élu.
Article L713-7
Sont électeurs aux élections des délégués consulaires :
1° A titre personnel :
a) Les commerçants immatriculés au registre du commerce et des sociétés dans la circonscription de la chambre de commerce et d'industrie, sous réserve, pour les associés en nom collectif et les associés commandités, des dispositions du III de l'article L. 713-2 ;
b) Les chefs d'entreprise inscrits au répertoire des métiers et immatriculés au registre du commerce et des sociétés dans la circonscription ;
c) Les conjoints des personnes énumérées au a ou au b ci-dessus ayant déclaré au registre du commerce et des sociétés qu'ils collaborent à l'activité de leur époux sans autre activité professionnelle ;
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d) Les capitaines au long cours ou capitaines de la marine marchande exerçant le commandement d'un navire immatriculé en France dont le port d'attache est situé dans la circonscription, les pilotes maritimes exerçant leurs fonctions dans un port situé dans la circonscription, les pilotes de l'aéronautique civile domiciliés dans la circonscription et exerçant le commandement d'un aéronef immatriculé en France ;
e) Les membres en exercice des tribunaux de commerce, ainsi que les anciens membres de ces tribunaux ayant demandé à être inscrits sur la liste électorale ;
2° Par l'intermédiaire d'un représentant :
a) Les sociétés à caractère commercial au sens de l'article L. 210-1 et les établissements publics à caractère industriel et commercial dont le siège social est situé dans la circonscription ;
b) Au titre d'un établissement faisant l'objet dans la circonscription d'une inscription complémentaire ou d'une immatriculation secondaire, à moins qu'il en soit dispensé par les lois et règlements en vigueur, les personnes physiques mentionnées aux a et b du 1° et les personnes morales mentionnées au a du présent 2°, quelle que soit la circonscription où ces personnes exercent leur propre droit de vote ;
c) Les sociétés à caractère commercial dont le siège est situé hors du territoire national et qui disposent dans la circonscription d'un établissement immatriculé au registre du commerce et des sociétés ;
3° Les cadres qui, employés dans la circonscription par les électeurs mentionnés aux 1° ou 2°, exercent des fonctions impliquant des responsabilités de direction commerciale, technique ou administrative de l'entreprise ou de l'établissement.
Article L713-8
Les représentants mentionnés au 2° de l'article L. 713-7 doivent exercer dans l'entreprise soit des fonctions de président-directeur général, de président ou de membre du conseil d'administration, de directeur général, de président ou de membre du directoire, de président du conseil de surveillance, de gérant, de président ou de membre du conseil d'administration ou de directeur d'un établissement public à caractère industriel et commercial, soit, à défaut et pour les représenter à titre de mandataire, des fonctions impliquant des responsabilités de direction commerciale, technique ou administrative de l'entreprise ou de l'établissement.
Article L713-9
Les électeurs à titre personnel et les cadres mentionnés aux 1° et 3° de l'article L. 713-7 ainsi que les représentants des personnes physiques ou morales mentionnées au 2° du même article sont
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ressortissants d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen.
Ils doivent en outre :
1° Remplir les conditions fixées à l'article L. 2 du code électoral sous réserve des dispositions du premier alinéa ci-dessus ;
2° N'avoir pas été l'auteur de faits ayant donné lieu à une condamnation pénale pour agissements contraires à l'honneur, à la probité ou aux bonnes moeurs ;
3° N'avoir pas été frappés depuis moins de quinze ans à compter du jour où la décision les ayant prononcées est devenue définitive, de faillite personnelle ou d'une des mesures d'interdiction ou de déchéance telles que prévues au livre VI du présent code, à la loi n° 85-98 du 25 janvier 1985 relative au redressement et à la liquidation judiciaires des entreprises ou à la loi n° 67-563 du 13 juillet 1967 sur le règlement judiciaire, la liquidation des biens, la faillite personnelle et les banqueroutes ;
4° Ne pas être frappé d'une peine d'interdiction, suivant les modalités prévues par l'article 131-27 du code pénal, d'exercer une profession commerciale ou industrielle, de diriger, d'administrer, de gérer ou de contrôler à un titre quelconque, directement ou indirectement, pour son propre compte ou pour le compte d'autrui, une entreprise commerciale ou industrielle ou une société commerciale ;
5° Ne pas avoir été condamnés à des peines, déchéances ou sanctions prononcées en vertu de législations en vigueur dans les Etats membres de la Communauté européenne ou dans les Etats parties à l'accord sur l'Espace économique européen équivalentes à celles visées aux 2°, 3° et 4°.
Article L713-10
Sont éligibles aux fonctions de délégué consulaire les personnes appartenant au collège des électeurs tel qu'il est défini à l'article L. 713-7.
Section 3 : Dispositions communes.
Article L713-11
Les électeurs des délégués consulaires et des membres des chambres de commerce et d'industrie sont répartis dans chaque circonscription administrative entre trois catégories professionnelles correspondant respectivement aux activités commerciales, industrielles ou de services.
Au sein de ces trois catégories, les électeurs peuvent éventuellement être répartis en sous-catégories
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professionnelles définies en fonction soit de la taille des entreprises, soit de leurs activités spécifiques.
Article L713-12
Le nombre des sièges des délégués consulaires, qui ne peut être inférieur à soixante ni supérieur à six cents, est déterminé compte tenu de l'importance du corps électoral consulaire de la circonscription, du nombre de membres élus de la chambre de commerce et d'industrie et du nombre des tribunaux de commerce compris dans la circonscription de cette chambre.
Le nombre de sièges d'une chambre de commerce et d'industrie est de vingt-quatre à soixante pour les chambres de commerce et d'industrie dont la circonscription compte moins de 30 000 électeurs, de trente-huit à soixante-dix pour celles dont la circonscription comporte 30 000 à 100 000 électeurs et de soixante-quatre à cent pour celles dont la circonscription compte plus de 100 000 électeurs.
Article L713-13
La répartition des sièges entre catégories et sous-catégories professionnelles est faite en tenant compte des bases d'imposition des ressortissants, du nombre de ceux-ci et du nombre de salariés qu'ils emploient.
Aucune des catégories professionnelles ne peut disposer d'une représentation supérieure à la moitié du nombre des sièges.
Article L713-14
Les listes électorales sont dressées dans le ressort du tribunal de commerce par une commission présidée par le juge commis à la surveillance du registre du commerce et des sociétés et sont soumises aux prescriptions du premier alinéa de l'article L. 25 et des articles L. 27, L. 34 et L. 35 du code électoral.
Article L713-15
Pour l'élection des membres des chambres de commerce et d'industrie, chaque électeur dispose d'autant de voix qu'il a de qualités à être électeur par application de l'article L. 713-1.
Pour l'élection des délégués consulaires, chaque électeur ne dispose que d'une seule voix.
Le droit de vote aux élections des membres des chambres de commerce et d'industrie et aux élections des délégués consulaires est exercé par correspondance ou par voie électronique.
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Article L713-16
Les délégués consulaires et les membres des chambres de commerce et d'industrie sont élus au scrutin majoritaire plurinominal à un tour. Si plusieurs candidats obtiennent le même nombre de suffrages, le plus âgé est proclamé élu.
Article L713-17
Les opérations pour l'élection des délégués consulaires et pour l'élection des membres des chambres de commerce et d'industrie sont organisées à la même date, par l'autorité administrative et, sous son contrôle, par les chambres de commerce et d'industrie. Elles sont soumises aux prescriptions des articles L. 49, L. 50, L. 58 à L. 67 du code électoral. La méconnaissance de ces dispositions est passible des peines prévues aux articles L. 86 à L. 117-1 du même code.
Une commission présidée par le préfet ou son représentant est chargée de veiller à la régularité du scrutin et de proclamer les résultats.
Les recours contre les élections des délégués consulaires et des membres des chambres de commerce et d'industrie sont portés devant le tribunal administratif comme en matière d'élections municipales.
Article L713-18
Un décret en Conseil d'Etat détermine les modalités d'application des articles L. 713-1 à L. 713-14. Ce décret fixe notamment les conditions dans lesquelles sont répartis les sièges de délégués consulaires et de membres d'une chambre de commerce et d'industrie entre les catégories et sous-catégories professionnelles.
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Partie législative
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce.
TITRE II : Du tribunal de commerce.
Chapitre Ier : De l'institution de la compétence.
Article L721-1
Les tribunaux de commerce sont des juridictions du premier degré, composées de juges élus et d'un greffier. Leur compétence est déterminée par le présent code et les codes et lois particuliers.
Les tribunaux de commerce sont soumis aux dispositions, communes à toutes les juridictions, du livre Ier du code de l'organisation judiciaire.
Article L721-2
Dans les circonscriptions où il n'est pas établi de tribunal de commerce, le tribunal de grande instance connaît des matières attribuées aux tribunaux de commerce.
Article L721-3
Les tribunaux de commerce connaissent :
1° Des contestations relatives aux engagements entre commerçants, entre établissements de crédit ou entre eux ;
2° De celles relatives aux sociétés commerciales ;
3° De celles relatives aux actes de commerce entre toutes personnes.
Toutefois, les parties peuvent, au moment où elles contractent, convenir de soumettre à l'arbitrage
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les contestations ci-dessus énumérées.
Article L721-4
Le tribunal de commerce connaît des billets à ordre portant en même temps des signatures de commerçants et de non-commerçants.
Toutefois, il est tenu de renvoyer au tribunal de grande instance s'il en est requis par le défendeur lorsque les billets à ordre ne portent que des signatures de non-commerçants et n'ont pas pour occasion des opérations de commerce, trafic, change, banque ou courtage.
Article L721-5
Par dérogation au 2° de l'article L. 721-3 et sous réserve des compétences des juridictions disciplinaires et nonobstant toute disposition contraire, les tribunaux civils sont seuls compétents pour connaître des actions en justice dans lesquelles l'une des parties est une société constituée conformément à la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est protégé, ainsi que des contestations survenant entre associés d'une telle société.
Néanmoins, les associés peuvent convenir, dans les statuts, de soumettre à des arbitres les contestations qui surviendraient entre eux pour raison de leur société.
Article L721-6
Ne sont pas de la compétence des tribunaux de commerce les actions intentées contre un propriétaire, cultivateur ou vigneron, pour vente de denrées provenant de son cru, ni les actions intentées contre un commerçant, pour paiement de denrées et marchandises achetées pour son usage particulier.
Néanmoins, les billets souscrits par un commerçant sont censés faits pour son commerce.
Chapitre II : De l'organisation et du fonctionnement.
Section 1 : De l'organisation et du fonctionnement du tribunal de commerce.
Article L722-1
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Sauf dispositions qui prévoient un juge unique, les jugements des tribunaux de commerce sont rendus par des juges statuant en formation collégiale.
Article L722-2
Lorsque le tribunal de commerce statue en matière de sauvegarde, de redressement ou de liquidation judiciaires, de règlement judiciaire ou de liquidation de biens, la formation de jugement comprend, sous réserve de l'application des dispositions de l'article L. 722-15, une majorité de juges ayant exercé des fonctions judiciaires pendant plus de deux ans.
Article L722-3
La formation de jugement est présidée par le président du tribunal de commerce ou par un juge de ce tribunal ayant exercé des fonctions judiciaires pendant au moins trois ans, sous réserve de l'application des dispositions de l'article L. 722-15.
Article L722-4
Lorsqu'un tribunal de commerce ne peut se constituer ou statuer, la cour d'appel, saisie sur requête du procureur général, désigne, s'il n'a pas été fait application des dispositions des articles L. 722-13 et L. 722-15, le tribunal de grande instance situé dans le ressort de la cour d'appel appelé à connaître des affaires inscrites au rôle du tribunal de commerce et de celles dont il aurait été saisi ultérieurement. Si le renvoi résulte de l'impossibilité de respecter les prescriptions de l'article L. 722-2, le tribunal de grande instance n'est saisi que des affaires de sauvegarde, redressement et de liquidation judiciaires.
Le greffier du tribunal de commerce n'est pas dessaisi de ses attributions et continue d'exercer ses fonctions auprès du tribunal de renvoi.
Article L722-5
Lorsque l'empêchement qui avait motivé le renvoi a cessé, la cour d'appel, saisie sur requête du procureur général, fixe la date à partir de laquelle le tribunal de commerce connaît à nouveau des affaires de sa compétence. A cette date, les affaires sont transmises, en l'état, au tribunal de commerce. Le tribunal de renvoi reste toutefois saisi des affaires de conciliation et, lorsqu'il est statué au fond, des affaires autres que celles de sauvegarde, de redressement, de liquidation judiciaires, de règlement judiciaire et de liquidation de biens.
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Section 2 : Du mandat des juges des tribunaux de commerce.
Article L722-6
Sous réserve des dispositions relatives aux élections complémentaires prévues au second alinéa de l'article L. 723-11, les juges des tribunaux de commerce sont élus pour deux ans lors de leur première élection. Ils peuvent, à l'issue d'un premier mandat, être réélus par période de quatre ans, dans le même tribunal ou dans tout autre tribunal de commerce, sans que puisse être dépassé le nombre maximal de mandats prévu à l'article L. 723-7.
Lorsque le mandat des juges des tribunaux de commerce vient à expiration avant le commencement de la période fixée pour l'installation de leurs successeurs, ils restent en fonctions jusqu'à cette installation, sans que cette prorogation puisse dépasser une période de trois mois.
Article L722-7
Avant d'entrer en fonctions, les juges des tribunaux de commerce prêtent serment.
Le serment est le suivant : Je jure de bien et fidèlement remplir mes fonctions, de garder religieusement le secret des délibérations et de me conduire en tout comme un juge digne et loyal.
Il est reçu par la cour d'appel, lorsque le tribunal de commerce est établi au siège de la cour d'appel et, dans les autres cas, par le tribunal de grande instance dans le ressort duquel le tribunal de commerce a son siège.
Article L722-8
La cessation des fonctions de juge d'un tribunal de commerce résulte :
1° De l'expiration du mandat électoral, sous réserve des dispositions du deuxième alinéa de l'article L. 722-6 et du troisième alinéa de l'article L. 722-11 ;
2° De la suppression du tribunal ;
3° De la démission ;
4° De la déchéance.
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Article L722-9
Lorsqu'une procédure de sauvegarde, de redressement ou de liquidation judiciaires est ouverte à l'égard d'un juge d'un tribunal de commerce, l'intéressé cesse ses fonctions à compter de la date du jugement d'ouverture. Il est réputé démissionnaire.
Les mêmes dispositions s'appliquent à un juge du tribunal de commerce qui a une des qualités mentionnées au premier alinéa de l'article L. 713-3, lorsque la société ou l'établissement public auquel il appartient fait l'objet d'une procédure de sauvegarde, de redressement ou de liquidation judiciaires.
Article L722-10
Lorsqu'un tribunal de grande instance a été désigné dans les conditions prévues à l'article L. 722-4, le mandat des juges du tribunal de commerce dessaisi n'est pas interrompu pendant la période de dessaisissement.
Article L722-11
Le président du tribunal de commerce est choisi parmi les juges du tribunal qui ont exercé des fonctions dans un tribunal de commerce pendant six ans au moins, sous réserve des dispositions de l'article L. 722-13.
Le président est élu pour quatre ans au scrutin secret par les juges du tribunal de commerce réunis en assemblée générale sous la présidence du président sortant ou, à défaut, du doyen d'âge. L'élection a lieu à la majorité absolue aux deux premiers tours de scrutin et à la majorité relative au troisième tour. En cas d'égalité de voix au troisième tour, le candidat ayant la plus grande ancienneté dans les fonctions judiciaires est proclamé élu ; en cas d'égalité d'ancienneté, le plus âgé est proclamé élu.
Le président reste en fonctions jusqu'à l'installation de son successeur sans que cette prorogation puisse dépasser une période de trois mois.
Article L722-12
Lorsque, pour quelque cause que ce soit, le président du tribunal de commerce cesse ses fonctions en cours de mandat, le nouveau président est élu dans un délai de trois mois pour la période restant à courir du mandat de son prédécesseur.
En cas d'empêchement, le président est suppléé dans ses fonctions par le juge qu'il a désigné. A
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défaut de désignation ou en cas d'empêchement du juge désigné, le président est remplacé par le juge ayant la plus grande ancienneté dans les fonctions judiciaires.
Article L722-13
Lorsque aucun des candidats ne remplit la condition d'ancienneté requise pour être président du tribunal de commerce, le premier président de la cour d'appel, saisi par requête du procureur général, peut décider, par ordonnance, que l'ancienneté requise n'est pas exigée.
Article L722-14
Sous réserve de l'application des dispositions de l'article L. 722-15, nul ne peut être désigné pour exercer les fonctions de juge-commissaire dans les conditions prévues par le livre VI s'il n'a exercé pendant deux ans au moins des fonctions judiciaires dans un tribunal de commerce.
Le président du tribunal de commerce dresse, au début de chaque année judiciaire, par ordonnance prise après avis de l'assemblée générale du tribunal, la liste des juges pouvant exercer les fonctions de juge-commissaire.
Article L722-15
Lorsque aucun des juges du tribunal de commerce ne remplit les conditions d'ancienneté requises soit pour statuer en matière de sauvegarde, de redressement ou de liquidation judiciaires, de règlement judiciaire ou de liquidation de biens, conformément aux dispositions de l'article L. 722-2, soit pour présider une formation de jugement dans les conditions prévues par l'article L. 722-3, soit pour remplir les fonctions de juge-commissaire dans les conditions prévues par l'article L. 722-14, le premier président de la cour d'appel, saisi par requête du procureur général, peut décider, par ordonnance, que l'ancienneté requise n'est pas exigée.
Article L722-16
Le mandat des juges élus des tribunaux de commerce est gratuit.
Chapitre III : De l'élection des juges des tribunaux de commerce.
Section 1 : De l'électorat.
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Article L723-1
Les juges d'un tribunal de commerce sont élus dans le ressort de la juridiction par un collège composé :
1° Des délégués consulaires élus dans le ressort de la juridiction ;
2° Des juges du tribunal de commerce ainsi que des anciens membres du tribunal ayant demandé à être inscrits sur la liste électorale.
Article L723-2
Les personnes mentionnées à l'article L. 723-1 ne peuvent faire partie du collège électoral qu'à la condition :
1° De ne pas avoir été déchues de leurs fonctions ;
2° De ne pas avoir été condamnées pénalement pour des agissements contraires à l'honneur, à la probité ou aux bonnes moeurs ;
3° De n'avoir pas été frappées depuis moins de quinze ans à compter du jour où la décision les ayant prononcées est devenue définitive, de faillite personnelle ou d'une des mesures d'interdiction ou de déchéance telles que prévues au livre VI du présent code, à la loi n° 85-98 du 25 janvier 1985 relative au redressement et à la liquidation judiciaires des entreprises ou à la loi n° 67-563 du 13 juillet 1967 sur le règlement judiciaire, la liquidation des biens, la faillite personnelle et les banqueroutes ;
4° Ne pas être frappé d'une peine d'interdiction, suivant les modalités prévues par l'article 131-27 du code pénal, d'exercer une profession commerciale ou industrielle, de diriger, d'administrer, de gérer ou de contrôler à un titre quelconque, directement ou indirectement, pour son propre compte ou pour le compte d'autrui, une entreprise commerciale ou industrielle ou une société commerciale.
Les délégués consulaires sont désignés dans les conditions prévues aux articles L. 713-6 à L. 713-18.
Article L723-3
La liste électorale pour les élections aux tribunaux de commerce est établie par une commission présidée par le juge commis à la surveillance du registre du commerce et des sociétés. En cas de création d'un tribunal de commerce, le premier président de la cour d'appel désigne comme président de la commission un magistrat de l'ordre judiciaire.
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Les dispositions du premier alinéa de l'article L. 25 et des articles L. 27, L. 34 et L. 35 du code électoral sont applicables en cas de contestation portant sur la liste électorale.
Section 2 : De l'éligibilité.
Article L723-4
Sont éligibles aux fonctions de juge d'un tribunal de commerce les personnes âgées de trente ans au moins :
1° Inscrites sur la liste électorale dressée en application de l'article L. 713-7 dans le ressort du tribunal de commerce ou dans le ressort des tribunaux de commerce limitrophes ;
2° Qui remplissent la condition de nationalité prévue à l'article L. 2 du code électoral ;
3° A l'égard desquelles une procédure de sauvegarde, de redressement ou de liquidation judiciaires n'a pas été ouverte ;
4° Qui, s'agissant des personnes mentionnées au 1° ou au 2° de l'article L. 713-7, n'appartiennent pas à une société ou à un établissement public ayant fait l'objet d'une procédure de sauvegarde, redressement ou de liquidation judiciaires ;
5° Et qui justifient soit d'une immatriculation pendant les cinq dernières années au moins au registre du commerce et des sociétés, soit de l'exercice, pendant une durée totale cumulée de cinq ans, de l'une des qualités énumérées à l'article L. 713-8 ou de l'une des professions énumérées au d du 1° de l'article L. 713-7.
Article L723-5
Toute personne ayant été déchue de ses fonctions de juge d'un tribunal de commerce est inéligible à cette fonction pour une durée de dix ans.
Article L723-6
Peut être déclarée inéligible pour une période d'une durée de dix ans par la Commission nationale de discipline toute personne ayant présenté sa démission de juge d'un tribunal de commerce au cours de la procédure disciplinaire diligentée à son encontre.
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Article L723-7
Les juges des tribunaux de commerce élus pour quatre mandats successifs dans un même tribunal de commerce ne sont plus éligibles dans ce tribunal pendant un an.
Toutefois, le président sortant à l'issue de quatre mandats successifs de membre ou de président peut être réélu pour un nouveau mandat, en qualité de membre du même tribunal de commerce. A la fin de ce mandat, il n'est plus éligible à aucun mandat pendant un an.
Article L723-8
Un juge d'un tribunal de commerce ne peut être simultanément membre d'un conseil de prud'hommes ou juge d'un autre tribunal de commerce.
Section 3 : Du scrutin et des opérations électorales.
Article L723-9
Chaque électeur ne dispose que d'une voix dans le ressort d'un même tribunal de commerce.
Le droit de vote peut être exercé par correspondance ou par voie électronique.
Article L723-10
Les élections des juges des tribunaux de commerce ont lieu au scrutin plurinominal majoritaire à deux tours.
Sont déclarés élus au premier tour les candidats ayant obtenu un nombre de voix au moins égal à la majorité des suffrages exprimés et au quart des électeurs inscrits. Si aucun candidat n'est élu ou s'il reste des sièges à pourvoir, l'élection est acquise au second tour à la majorité relative des suffrages exprimés. Si plusieurs candidats obtiennent le même nombre de voix au second tour, le plus âgé est proclamé élu.
Article L723-11
Des élections ont lieu tous les ans dans chaque tribunal de commerce où il y a des sièges à pourvoir pour quelque cause que ce soit.
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Si, en cours d'année, le nombre des vacances dépasse le tiers des effectifs d'un tribunal, le préfet peut décider qu'il sera procédé à des élections complémentaires. Dans ce cas, le mandat des juges élus expire à la fin de l'année judiciaire.
Article L723-12
Les dispositions des articles L. 49, L. 50, L. 58 à L. 67 et L. 86 à L. 117 du code électoral s'appliquent aux opérations électorales organisées en vue de la désignation des juges des tribunaux de commerce.
Article L723-13
Une commission présidée par un magistrat de l'ordre judiciaire désigné par le premier président de la cour d'appel est chargée de veiller à la régularité du scrutin et de proclamer les résultats.
Article L723-14
Un décret en Conseil d'Etat détermine les modalités d'application du présent chapitre.
Chapitre IV : De la discipline des juges des tribunaux de commerce.
Article L724-1
Tout manquement d'un juge d'un tribunal de commerce à l'honneur, à la probité, à la dignité et aux devoirs de sa charge constitue une faute disciplinaire.
Article L724-2
Le pouvoir disciplinaire est exercé par une commission nationale de discipline qui est présidée par un président de chambre à la Cour de cassation, désigné par le premier président de la Cour de cassation, et qui comprend :
1° Un membre du Conseil d'Etat désigné par le vice-président du Conseil d'Etat ;
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2° Deux magistrats du siège des cours d'appel désignés par le premier président de la Cour de cassation sur une liste établie par les premiers présidents des cours d'appel, chacun d'eux arrêtant le nom d'un magistrat du siège de sa cour d'appel après avis de l'assemblée générale des magistrats du siège de la cour d'appel ;
3° Quatre juges des tribunaux de commerce élus par l'ensemble des présidents des tribunaux de commerce.
Des suppléants en nombre égal sont désignés dans les mêmes conditions. Les membres de la commission nationale de discipline sont désignés pour quatre ans.
Article L724-3
Après audition de l'intéressé par le président du tribunal auquel il appartient, la commission nationale de discipline peut être saisie par le garde des sceaux, ministre de la justice.
Elle peut prononcer soit le blâme, soit la déchéance.
Article L724-4
Sur proposition du garde des sceaux, ministre de la justice, le président de la commission nationale de discipline peut suspendre un juge d'un tribunal de commerce pour une durée qui ne peut excéder six mois, lorsqu'il existe contre l'intéressé, qui aura été préalablement entendu par le président du tribunal auquel il appartient, des faits de nature à entraîner une sanction disciplinaire. La suspension peut être renouvelée une fois par la commission nationale pour une durée qui ne peut excéder six mois. Si le juge du tribunal de commerce fait l'objet de poursuites pénales, la suspension peut être ordonnée par le président de la commission nationale jusqu'à l'intervention de la décision pénale définitive.
Article L724-5
La commission nationale de discipline ne peut délibérer que si quatre de ses membres au moins, y compris le président, sont présents. En cas de partage égal des voix, celle du président est prépondérante.
Article L724-6
Les décisions de la commission nationale de discipline et celles de son président sont motivées. Elles ne sont susceptibles de recours que devant la Cour de cassation.
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Article L724-7
Indépendamment des décisions qui pourraient intervenir en application des articles L. 724-3 et L. 724-4, lorsqu'il apparaît, postérieurement à son élection, qu'un juge du tribunal de commerce a encouru, avant ou après son installation, une des condamnations, déchéances ou incapacités mentionnées à l'article L. 723-2, il est déchu de plein droit de ses fonctions.
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Partie législative
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce.
TITRE III : Des juridictions commerciales particulières.
Chapitre Ier : Des dispositions applicables aux départements du Bas-Rhin, du Haut-Rhin et de la Moselle.
Article L731-1
Des chambres commerciales du tribunal de grande instance sont instituées dans les départements du Bas-Rhin, du Haut-Rhin et de la Moselle.
Article L731-2
La compétence de la chambre commerciale est celle des tribunaux de commerce, à l'exception des affaires qui relèvent de la compétence du tribunal d'instance en application des dispositions du chapitre III du titre II du livre II du code de l'organisation judiciaire.
Article L731-3
La chambre commerciale est composée d'un membre du tribunal de grande instance, président, de deux assesseurs élus et d'un greffier. Les assesseurs sont élus dans les conditions fixées aux articles L. 723-1 à L. 723-14.
Article L731-4
Les autres dispositions du titre II du livre VII relatives aux tribunaux de commerce sont applicables à la chambre commerciale, à l'exception des articles L. 721-1, L. 721-2, L. 722-3, L. 722-11 à L. 722-13 et du second alinéa de l'article L. 723-7.
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Toutefois, par dérogation aux dispositions de l'article L. 722-14, les fonctions de juges-commissaires peuvent aussi être exercées par un juge du siège dans les conditions prévues au second alinéa de l'article L. 215-1 du code de l'organisation judiciaire.
Chapitre II : Des dispositions applicables aux départements et régions d'outre-mer.
Article L732-1
Des tribunaux mixtes de commerce sont institués dans les départements et régions d'outre-mer.
Article L732-2
La compétence des tribunaux mixtes de commerce est déterminée par le présent code et les lois particulières.
Article L732-3
Les tribunaux mixtes de commerce sont des juridictions du premier degré composées du président du tribunal de grande instance, président, de juges élus, sous réserve des dispositions de l'article L. 732-7, et d'un greffier. Les juges sont élus dans les conditions fixées aux articles L. 723-1 à L. 723-13.
Article L732-4
Dans les circonscriptions où il n'est pas établi de tribunal mixte de commerce, le tribunal de grande instance connaît des matières attribuées aux tribunaux mixtes de commerce.
Article L732-5
Les jugements des tribunaux mixtes de commerce sont rendus, sauf dispositions qui prévoient un juge unique, par une formation collégiale comprenant, outre le président, trois juges élus ou désignés dans les conditions prévues par l'article L. 732-7. En cas de partage égal des voix, celle du président est prépondérante.
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Article L732-6
Les dispositions du titre II du livre VII relatives aux tribunaux de commerce sont applicables au tribunal mixte de commerce, à l'exception des articles L. 721-1, L. 722-1, L. 722-3, L. 722-11 à L. 722-13 et du second alinéa de l'article L. 723-7.
Article L732-7
A la liste des candidats déclarés élus, la commission prévue par l'article L. 723-13 annexe une liste complémentaire comprenant les nom, qualité et domicile des candidats non élus en mentionnant le nombre de voix qu'ils ont obtenues. Le premier président de la cour d'appel, après avis du président du tribunal mixte de commerce, établit à partir de cette liste complémentaire une liste de quinze personnes au plus qui, ayant leur résidence dans la ville, sont en mesure de compléter le tribunal mixte. Si le nombre des juges se révèle insuffisant en cours d'année à l'occasion d'une audience, le président du tribunal mixte procède au tirage au sort en séance publique entre tous les noms de la liste arrêtée par le premier président. Les personnes dont le nom a été tiré au sort prêtent serment devant le président du tribunal mixte.
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Partie législative
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce.
TITRE IV : Du greffe du tribunal de commerce.
Chapitre Ier : De l'institution et des missions.
Article L741-1
Les greffiers des tribunaux de commerce sont des officiers publics et ministériels.
Article L741-2
La profession de greffier des tribunaux de commerce est représentée auprès des pouvoirs publics par un Conseil national des greffiers des tribunaux de commerce, doté de la personnalité morale et chargé d'assurer la défense de ses intérêts collectifs.
Les modes d'élection et de fonctionnement du Conseil national sont fixés par décret en Conseil d'Etat.
Le conseil national fixe son budget.
Il peut assurer le financement de services d'intérêt collectif dans les domaines fixés par décret.
A cette fin, le conseil national appelle une cotisation versée annuellement par chaque titulaire d'un office de greffier de tribunal de commerce. Le montant de cette cotisation résulte d'un barème progressif fixé par décret après avis du conseil national, en fonction de l'activité de l'office et, le cas échéant, du nombre d'associés.
Le produit de cette cotisation ne peut excéder une quotité déterminée par le conseil national, dans la limite de 2 % du total des produits hors taxes comptabilisés par l'ensemble des offices au titre de l'année précédente.
A défaut de paiement de cette cotisation dans un délai d'un mois à compter d'une mise en demeure,
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le conseil national délivre, à l'encontre du redevable, un acte assimilé à une décision au sens du 6° de l'article 3 de la loi n° 91-650 du 9 juillet 1991 portant réforme des procédures civiles d'exécution.
Chapitre II : Des conditions d'accès à la profession et aux autres professions judiciaires et juridiques.
Article L742-1
Les règles d'accès à la profession des greffiers des tribunaux de commerce sont fixées par décret en Conseil d'Etat.
Article L742-2
Les règles permettant aux greffiers des tribunaux de commerce d'accéder aux autres professions juridiques et judiciaires sont fixées par décret en Conseil d'Etat.
Chapitre III : Des conditions d'exercice.
Section 1 : De l'inspection et de la discipline.
Sous-section 1 : De l'inspection.
Article L743-1
Les greffiers des tribunaux de commerce sont soumis, dans leur activité professionnelle, à des inspections sous l'autorité du garde des sceaux, ministre de la justice, dans des conditions prévues par décret en Conseil d'Etat. Au cours de ces inspections, ils sont tenus de fournir tous renseignements et documents utiles sans pouvoir opposer le secret professionnel.
Sous-section 2 : De la discipline.
Article L743-2
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Tout manquement d'un greffier de tribunal de commerce à l'honneur, à la probité, à la dignité et aux devoirs de sa charge constitue une faute disciplinaire.
L'acceptation de la démission d'un greffier ne fait pas obstacle au prononcé d'une sanction disciplinaire, si les faits qui lui ont été reprochés ont été commis pendant l'exercice de ses fonctions.
Article L743-3
Les sanctions disciplinaires sont :
1° Le rappel à l'ordre ;
2° L'avertissement ;
3° Le blâme ;
4° L'interdiction temporaire ;
5° La destitution ou le retrait de l'honorariat.
Les sanctions mentionnées aux 1° à 4° peuvent être assorties de la sanction complémentaire de l'inéligibilité temporaire au Conseil national des greffiers des tribunaux de commerce. La durée maximale de cette sanction complémentaire est de cinq ans pour les sanctions mentionnées aux 1° à 3° et de dix ans à compter de la cessation de la mesure d'interdiction pour la sanction mentionnée au 4°.
Article L743-4
L'action disciplinaire à l'encontre du greffier d'un tribunal de commerce est exercée soit devant la formation disciplinaire du Conseil national des greffiers des tribunaux de commerce, soit devant le tribunal de grande instance dans le ressort duquel le tribunal de commerce a son siège ou, si le greffier est titulaire de plusieurs greffes, devant le tribunal de grande instance désigné par le premier président de la cour d'appel, dans les conditions prévues par le présent chapitre.
L'action disciplinaire se prescrit par dix ans.
Article L743-5
La formation disciplinaire du Conseil national des greffiers des tribunaux de commerce comprend cinq membres désignés par le conseil national en son sein ; cinq suppléants sont désignés dans les
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mêmes conditions. Elle élit son président.
Le président du conseil national ne peut pas être membre de la formation disciplinaire.
La formation disciplinaire du conseil national ne peut prononcer que l'une des sanctions mentionnées aux 1° à 3° de l'article L. 743-3.
Article L743-6
L'action disciplinaire est exercée par le procureur de la République. Elle peut également être exercée par le président du Conseil national des greffiers des tribunaux de commerce. Dans ce cas, notification en est faite au procureur de la République, qui peut citer le greffier devant le tribunal de grande instance statuant disciplinairement. Notification de la citation est faite au président de la formation disciplinaire du conseil national.
La formation disciplinaire du conseil national est dessaisie à compter de la notification effectuée par le procureur de la République.
Article L743-7
Le greffier du tribunal de commerce qui fait l'objet d'une poursuite pénale ou disciplinaire peut être suspendu provisoirement de l'exercice de ses fonctions par le tribunal de grande instance, saisi à la requête du procureur de la République.
En cas d'urgence, la suspension provisoire peut être prononcée par le tribunal de grande instance avant même l'exercice de poursuites pénales ou disciplinaires.
Le tribunal de grande instance peut mettre fin à la suspension provisoire à la requête du procureur de la République ou du greffier.
La suspension cesse de plein droit dès que les actions pénale ou disciplinaire sont éteintes. Elle cesse également de plein droit, dans le cas prévu au deuxième alinéa, si, à l'expiration d'un délai d'un mois à compter de son prononcé, aucune poursuite pénale ou disciplinaire n'a été engagée.
Article L743-8
Les décisions de la formation disciplinaire du Conseil national des greffiers des tribunaux de commerce peuvent être déférées à la cour d'appel de Paris par le procureur de la République compétent pour exercer l'action disciplinaire, par le président du conseil national lorsque les poursuites ont été engagées à son initiative, ou par le greffier.
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Les décisions du tribunal de grande instance statuant en matière disciplinaire peuvent être déférées à la cour d'appel territorialement compétente par le procureur de la République, par le président du Conseil national des greffiers des tribunaux de commerce lorsque les poursuites ont été engagées à son initiative, ou par le greffier.
Article L743-9
Le greffier suspendu, interdit ou destitué s'abstient de tout acte professionnel. Les actes accomplis au mépris de cette prohibition peuvent être déclarés nuls, à la requête de tout intéressé ou du procureur de la République, par le tribunal de grande instance. La décision est exécutoire à l'égard de toute personne.
Toute infraction aux dispositions du premier alinéa est punie des peines prévues à l'article 433-17 du code pénal.
Article L743-10
Le tribunal de grande instance qui prononce la suspension, l'interdiction ou la destitution nomme un ou plusieurs administrateurs provisoires.
Article L743-11
Un décret en Conseil d'Etat fixe les conditions d'application du présent chapitre.
Section 2 : Des modes d'exercice.
Article L743-12
Les greffiers des tribunaux de commerce peuvent exercer leur profession à titre individuel, sous forme de sociétés civiles professionnelles ou sous forme de sociétés d'exercice libéral telles que prévues par la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est protégé. Ils peuvent aussi être membres d'un groupement d'intérêt économique ou d'un groupement européen d'intérêt économique ou associés d'une société en participation régie par le titre II de la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est protégé.
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Section 3 : De la tarification des greffiers des tribunaux de commerce.
Article L743-13
Les émoluments des greffiers des tribunaux de commerce sont fixés par décret en Conseil d'Etat.
Section 4 : De la comptabilité.
Article L743-14
Les sommes détenues par les greffiers des tribunaux de commerce pour le compte de tiers et relevant de catégories fixées par décret en Conseil d'Etat sont déposées sur un compte spécialement affecté ouvert à cet effet auprès de la Caisse des dépôts et consignations. Le même décret détermine les conditions du dépôt des fonds.
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Partie législative
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce.
TITRE V : De l'aménagement commercial.
Article L750-1
Les implantations, extensions, transferts d'activités existantes et changements de secteur d'activité d'entreprises commerciales et artisanales doivent répondre aux exigences d'aménagement du territoire, de la protection de l'environnement et de la qualité de l'urbanisme. Ils doivent en particulier contribuer au maintien des activités dans les zones rurales et de montagne ainsi qu'au rééquilibrage des agglomérations par le développement des activités en centre-ville et dans les zones de dynamisation urbaine.
Dans le cadre d'une concurrence loyale, ils doivent également contribuer à la modernisation des équipements commerciaux, à leur adaptation à l'évolution des modes de consommation et des techniques de commercialisation, au confort d'achat du consommateur et à l'amélioration des conditions de travail des salariés.
Article L750-1-1
Dans le respect des orientations définies à l'article L. 750-1, le Gouvernement veille au développement de la concurrence dans le secteur du commerce au moyen de la modernisation des commerces de proximité, en lui apportant les concours prévus à l'article 4 de la loi n° 89-1008 du 31 décembre 1989 relative au développement des entreprises commerciales et artisanales et à l'amélioration de leur environnement économique, juridique et social, y compris en cas de circonstances exceptionnelles susceptibles de provoquer une atteinte grave au tissu commercial.
Les opérations éligibles à ces concours sont destinées à favoriser la création, le maintien, la modernisation, l'adaptation ou la transmission des entreprises de proximité, pour conforter le commerce sédentaire et non sédentaire, notamment en milieu rural, dans les zones de montagne, dans les halles et marchés ainsi que dans les quartiers prioritaires de la politique de la ville. Elles sont également destinées à faciliter le retour à une activité normale des commerces de proximité après l'exécution de travaux publics réduisant l'accès de la clientèle à ces commerces.
Le fonds d'intervention pour les services, l'artisanat et le commerce assure le versement d'aides financières pour la mise en œuvre des alinéas précédents. Il prend en charge, dans des conditions fixées par décret en Conseil d'Etat, les intérêts des emprunts contractés par les communes pour l'acquisition, en application de l'article L. 214-1 du code de l'urbanisme, de fonds artisanaux, de fonds de commerce, de baux commerciaux ou de terrains destinés à l'aménagement commercial. Il finance notamment les études nécessaires à l'élaboration d'un cahier des charges qui permet aux communes d'engager dans les meilleures conditions un projet de revitalisation de leur centre-ville,
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la formation de médiateurs du commerce et les investissements nécessaires pour un meilleur accès des personnes handicapées aux magasins. Les crédits du fonds d'intervention pour les services, l'artisanat et le commerce peuvent financer des projets d'une durée supérieure à trois ans.
II.-Les ressources du fonds d'intervention pour les services, l'artisanat et le commerce consistent, dans la limite d'un plafond de 100 millions d'euros, en une fraction de 15 % de la taxe instituée par l'article 3 de la loi n° 72-657 du 13 juillet 1972 instituant des mesures en faveur de certaines catégories de commerçants et artisans âgés.
Un conseil stratégique, composé pour moitié de représentants de l'Etat et pour moitié de représentants de l'Assemblée nationale et du Sénat, des collectivités territoriales et de personnalités qualifiées, fixe les principes et examine la mise en œuvre de la politique de soutien aux activités de proximité.
Le président du conseil stratégique est nommé par décret sur proposition de celui-ci.
Une commission d'orientation adresse annuellement au conseil stratégique des recommandations relatives aux améliorations à apporter à la politique de soutien aux activités de proximité.
Chapitre Ier : Des commissions d'aménagement commercial.
Section 1 : Des commissions départementales d'aménagement commercial.
Article L751-1
Une commission départementale d'aménagement commercial statue sur les demandes d'autorisation qui lui sont présentées en vertu des dispositions des articles L. 752-1, L. 752-3 et L. 752-15.
Cette commission est également compétente, dans la composition spéciale précisée au IV de l'article L. 751-2, pour statuer sur les projets d'aménagement cinématographique qui lui sont présentés en vertu des articles L. 212-7 et L. 212-8 du code du cinéma et de l'image animée.
Article L751-2
I.-La commission départementale d'aménagement commercial est présidée par le préfet.
II.-Dans les départements autres que Paris, elle est composée :
1° Des cinq élus suivants :
a) Le maire de la commune d'implantation ;
b) Le président de l'établissement public de coopération intercommunale compétent en matière d'aménagement de l'espace et de développement dont est membre la commune d'implantation ou, à défaut, le conseiller général du canton d'implantation ;
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c) Le maire de la commune la plus peuplée de l'arrondissement, autre que la commune d'implantation ; en dehors des départements des Hauts-de-Seine, de la Seine-Saint-Denis, du Val-de-Marne et des communes de l'Essonne, du Val-d'Oise, des Yvelines et de Seine-et-Marne appartenant à l'agglomération parisienne, dans le cas où la commune d'implantation appartient à une agglomération multicommunale comportant au moins cinq communes, le maire de la commune la plus peuplée est choisi parmi les maires des communes de ladite agglomération ;
d) Le président du conseil général ou son représentant ;
e) Le président du syndicat mixte ou de l'établissement public de coopération intercommunale chargé du schéma de cohérence territoriale auquel adhère la commune d'implantation ou son représentant ou, à défaut, un adjoint au maire de la commune d'implantation.
Lorsque l'un des élus détient plusieurs des mandats mentionnés ci-dessus, le préfet désigne pour le remplacer un ou plusieurs maires de communes situées dans la zone de chalandise concernée ;
2° De trois personnalités qualifiées en matière de consommation, de développement durable et d'aménagement du territoire.
Lorsque la zone de chalandise du projet dépasse les limites du département, le préfet complète la composition de la commission en désignant au moins un élu et une personnalité qualifiée de chaque autre département concerné.
Pour éclairer sa décision, la commission entend toute personne dont l'avis présente un intérêt.
III.-A Paris, elle est composée :
1° Des cinq élus suivants :
a) Le maire de Paris ou son représentant ;
b) Le maire de l'arrondissement du lieu d'implantation ou son représentant ;
c) Un conseiller d'arrondissement désigné par le conseil de Paris ;
d) Un adjoint au maire de Paris ;
e) Un conseiller régional désigné par le conseil régional ;
2° De trois personnalités qualifiées en matière de consommation, de développement durable et d'aménagement du territoire.
Pour éclairer sa décision, la commission entend toute personne dont l'avis présente un intérêt.
IV.-Lorsqu'elle se réunit pour examiner les projets d'aménagement cinématographique, la commission comprend, parmi les personnalités qualifiées désignées par le préfet, un expert proposé par le président du Centre national du cinéma et de l'image animée et choisi sur une liste établie par lui.
Article L751-3
Tout membre de la commission départementale d'aménagement commercial informe le préfet des intérêts qu'il détient et de la fonction qu'il exerce dans une activité économique.
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Aucun membre de la commission départementale ne peut délibérer dans une affaire où il a un intérêt personnel ou s'il représente ou a représenté une ou des parties.
Article L751-4
Les conditions de désignation des membres de la commission et les modalités de son fonctionnement sont fixées par décret en Conseil d'Etat.
Section 2 : De la Commission nationale d'aménagement commercial.
Article L751-5
La Commission nationale d'aménagement commercial comprend huit membres nommés, pour une durée de six ans non renouvelable, par décret pris sur le rapport du ministre chargé du commerce. La commission est renouvelée par moitié tous les trois ans.
Article L751-6
I.- La Commission nationale d'aménagement commercial se compose de :
1° Un membre du Conseil d'Etat désigné par le vice-président du Conseil d'Etat, président ;
2° Un membre de la Cour des comptes désigné par le premier président de la Cour des comptes ;
3° Un membre de l'inspection générale des finances désigné par le chef de ce service ;
4° Un membre du corps des inspecteurs généraux de l'équipement désigné par le vice-président du Conseil général des ponts et chaussées ;
5° Quatre personnalités désignées pour leur compétence en matière de distribution, de consommation, d'urbanisme, de développement durable, d'aménagement du territoire ou d'emploi à raison d'une par le président de l'Assemblée nationale, une par le président du Sénat, une par le ministre chargé du commerce et une par le ministre chargé de l'urbanisme et de l'environnement.
II.- Lorsque la commission nationale est saisie de recours contre les décisions des commissions départementales statuant sur les projets d'aménagement cinématographique, le membre mentionné au 4° du I est remplacé par un membre du corps des inspecteurs généraux du ministère chargé de la culture ; celle des personnalités mentionnée au 5° du I, désignée par le ministre chargé du commerce, est remplacée par une personnalité compétente en matière de distribution cinématographique désignée par le ministre chargé de la culture. En outre, la commission est complétée par une personnalité qualifiée nommée par le ministre chargé de la culture sur proposition du président du Centre national du cinéma et de l'image animée. Un suppléant est
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nommé dans les mêmes conditions.
Article L751-7
Tout membre de la commission nationale informe le président des intérêts qu'il détient et de la fonction qu'il exerce dans une activité économique.
Aucun membre de la commission nationale ne peut délibérer dans une affaire où il a un intérêt personnel et direct ou s'il représente ou a représenté une des parties intéressées.
Article L751-8
Les conditions de désignation des membres de la commission nationale et de son président, ainsi que les modalités de son fonctionnement, sont fixées par décret en Conseil d'Etat.
Section 3 : Des observatoires départementaux d'équipement commercial.
Article L751-9
L'observatoire départemental d'équipement commercial collecte les éléments nécessaires à la connaissance du territoire en matière commerciale, dans le respect des orientations définies à l'article L. 750-1. Il met ces données à disposition des collectivités locales et de leurs groupements qui élaborent un schéma de développement commercial.
Chapitre II : De l'autorisation commerciale.
Section 1 : Des projets soumis à autorisation.
Article L752-1
I.-Sont soumis à une autorisation d'exploitation commerciale les projets ayant pour objet :
1° La création d'un magasin de commerce de détail d'une surface de vente supérieure à 1 000 mètres carrés, résultant soit d'une construction nouvelle, soit de la transformation d'un immeuble existant ;
2° L'extension de la surface de vente d'un magasin de commerce de détail ayant déjà atteint le seuil des 1 000 mètres carrés ou devant le dépasser par la réalisation du projet. Est considérée comme une extension l'utilisation supplémentaire de tout espace couvert ou non, fixe ou mobile, et qui
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n'entrerait pas dans le cadre de l'article L. 310-2 ;
3° Tout changement de secteur d'activité d'un commerce d'une surface de vente supérieure à 2 000 mètres carrés. Ce seuil est ramené à 1 000 mètres carrés lorsque l'activité nouvelle du magasin est à prédominance alimentaire ;
4° La création d'un ensemble commercial tel que défini à l'article L. 752-3 et dont la surface de vente totale est supérieure à 1 000 mètres carrés ;
5° L'extension de la surface de vente d'un ensemble commercial ayant déjà atteint le seuil des 1 000 mètres carrés ou devant le dépasser par la réalisation du projet ;
6° La réouverture au public, sur le même emplacement, d'un magasin de commerce de détail d'une surface de vente supérieure à 1 000 mètres carrés dont les locaux ont cessé d'être exploités pendant trois ans, ce délai ne courant, en cas de procédure de redressement judiciaire de l'exploitant, que du jour où le propriétaire a recouvré la pleine et entière disposition des locaux.
II.-Les schémas prévus au chapitre II du titre II du livre Ier du code de l'urbanisme peuvent définir des zones d'aménagement commercial.
Ces zones sont définies en considération des exigences d'aménagement du territoire, de protection de l'environnement ou de qualité de l'urbanisme spécifiques à certaines parties du territoire couvert par le schéma. Leur délimitation ne peut reposer sur l'analyse de l'offre commerciale existante ni sur une mesure de l'impact sur cette dernière de nouveaux projets de commerces.
La définition des zones figure dans un document d'aménagement commercial qui est intégré au schéma de cohérence territoriale par délibération de l'établissement public prévu à l'article L. 122-4 du code de l'urbanisme.A peine de caducité, ce document d'aménagement commercial doit faire l'objet, dans un délai d'un an à compter de la délibération l'adoptant, d'une enquête publique.
En l'absence de schéma de cohérence territoriale, l'établissement public compétent pour son élaboration peut adopter avant le 1er juillet 2009 un document provisoire d'aménagement commercial, dans les conditions définies à l'alinéa précédent. Ce document provisoire est valable deux ans.L'approbation du schéma de cohérence territoriale dans ce délai lui confère un caractère définitif.
Dans la région d'Ile-de-France, dans les régions d'outre-mer et en Corse, en l'absence de schéma de cohérence territoriale, un document d'aménagement commercial peut être intégré au plan local d'urbanisme.
Le document d'aménagement commercial est communiqué dès son adoption au préfet.
Article L752-2
I.-Les regroupements de surfaces de vente de magasins voisins, sans création de surfaces supplémentaires, n'excédant pas 2 500 mètres carrés, ou 1 000 mètres carrés lorsque l'activité nouvelle est à prédominance alimentaire, ne sont pas soumis à une autorisation d'exploitation commerciale.
II.-Les pharmacies et les commerces de véhicules automobiles ou de motocycles ne sont pas soumis à l'autorisation d'exploitation commerciale prévue à l'article L. 752-1.
III.-Les halles et marchés d'approvisionnement au détail, couverts ou non, établis sur les
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dépendances du domaine public et dont la création est décidée par le conseil municipal, les magasins accessibles aux seuls voyageurs munis de billets et situés dans l'enceinte des aéroports ainsi que les parties du domaine public affecté aux gares ferroviaires situées en centre-ville d'une surface maximum de 2 500 mètres carrés, ne sont pas soumis à une autorisation d'exploitation commerciale.
Article L752-3
I. - Sont regardés comme faisant partie d'un même ensemble commercial, qu'ils soient ou non situés dans des bâtiments distincts et qu'une même personne en soit ou non le propriétaire ou l'exploitant, les magasins qui sont réunis sur un même site et qui :
1° Soit ont été conçus dans le cadre d'une même opération d'aménagement foncier, que celle-ci soit réalisée en une ou en plusieurs tranches ;
2° Soit bénéficient d'aménagements conçus pour permettre à une même clientèle l'accès des divers établissements ;
3° Soit font l'objet d'une gestion commune de certains éléments de leur exploitation, notamment par la création de services collectifs ou l'utilisation habituelle de pratiques et de publicités commerciales communes ;
4° Soit sont réunis par une structure juridique commune, contrôlée directement ou indirectement par au moins un associé, exerçant sur elle une influence au sens de l'article L. 233-16 ou ayant un dirigeant de droit ou de fait commun.
II. - Toutefois, les dispositions du présent article ne sont pas applicables aux zones d'aménagement concerté créées dans un centre urbain, en vertu de l'article L. 311-1 du code de l'urbanisme.
Article L752-3-1
Les projets d'aménagement cinématographique ne sont soumis à l'examen de la commission qu'à la condition d'être accompagnés de l'indication de la personne qui sera titulaire de l'autorisation d'exercice délivrée en application de l'article 14 du code de l'industrie cinématographique.
Article L752-4
Dans les communes de moins de 20 000 habitants, le maire ou le président de l'établissement public de coopération intercommunale compétent en matière d'urbanisme peut, lorsqu'il est saisi d'une demande de permis de construire un équipement commercial dont la surface est comprise entre 300 et 1 000 mètres carrés, proposer au conseil municipal ou à l'organe délibérant de cet établissement de saisir la commission départementale d'aménagement commercial afin qu'elle statue sur la conformité du projet aux critères énoncés à l'article L. 752-6.
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Dans ces communes, lorsque le maire ou le président de l'établissement public compétent en matière d'urbanisme est saisi d'une demande de permis de construire un équipement commercial visé à l'alinéa précédent, il notifie cette demande dans les huit jours au président de l'établissement public de coopération intercommunale ou du syndicat mixte visé à l'article L. 122-4 du code de l'urbanisme sur le territoire duquel est projetée l'implantation. Celui-ci peut proposer à l'organe délibérant de saisir la commission départementale d'aménagement commercial afin qu'elle statue sur la conformité du projet aux critères énoncés à l'article L. 752-6.
La délibération du conseil municipal ou de l'organe délibérant de l'établissement public de coopération intercommunale est motivée. Elle est transmise au pétitionnaire sous un délai de trois jours.
En cas d'avis défavorable de la commission départementale d'aménagement commercial ou, le cas échéant, de la Commission nationale d'aménagement commercial, le permis de construire ne peut être délivré.
La commission départementale d'aménagement commercial se prononce dans un délai d'un mois.
En cas d'avis négatif, le promoteur peut saisir la Commission nationale d'aménagement commercial qui se prononce dans un délai d'un mois. Le silence de la commission nationale vaut confirmation de l'avis de la commission départementale.
Article L752-5
En cas d'exploitation abusive d'une position dominante ou d'un état de dépendance économique de la part d'une entreprise ou d'un groupe d'entreprises exploitant un ou plusieurs magasins de commerce de détail, le maire peut saisir l'Autorité de la concurrence afin que celle-ci procède aux injonctions et aux sanctions pécuniaires prévues à l'article L. 464-2.
Section 2 : De la décision de la commission départementale.
Article L752-6
Lorsqu'elle statue sur l'autorisation d'exploitation commerciale visée à l'article L. 752-1, la commission départementale d'aménagement commercial se prononce sur les effets du projet en matière d'aménagement du territoire, de développement durable et de protection des consommateurs. Les critères d'évaluation sont :
1° En matière d'aménagement du territoire :
a) L'effet sur l'animation de la vie urbaine, rurale et de montagne ;
b) L'effet du projet sur les flux de transport ;
c) Les effets découlant des procédures prévues aux articles L. 303-1 du code de la construction et de l'habitation et L. 123-11 du code de l'urbanisme ;
2° En matière de développement durable : a) La qualité environnementale du projet ; b) Son insertion dans les réseaux de transports collectifs.
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Article L752-7
Lorsqu'elle statue sur l'autorisation prévue par les articles L. 212-7 et L. 212-8 du code du cinéma et de l'image animée, la commission se prononce au vu des critères énoncés à l'article L. 212-9 du même code.
Article L752-12
L'instruction des demandes d'autorisation est faite par les services déconcentrés de l'Etat.
Article L752-14
La commission départementale d'aménagement commercial autorise les projets par un vote à la majorité absolue des membres présents. Le procès-verbal indique le sens du vote émis par chacun de ces membres.
Le préfet, qui préside la commission départementale, ne prend pas part au vote.
Les autorisations sollicitées en matière d'aménagement cinématographique sont accordées par place de spectateur.
L'autorisation d'aménagement cinématographique requise n'est ni cessible ni transmissible tant que la mise en exploitation de l'établissement de spectacles cinématographiques n'est pas intervenue.
II. - La commission départementale d'aménagement commercial se prononce dans un délai de deux mois à compter de sa saisine. Passé ce délai, la décision est réputée favorable. Les membres de la commission ont connaissance des demandes déposées au moins dix jours avant d'avoir à statuer. Cette décision est notifiée dans les dix jours au maire et au pétitionnaire. Elle est également notifiée au médiateur du cinéma lorsqu'elle concerne l'aménagement cinématographique.
Article L752-15
L'autorisation d'exploitation commerciale est délivrée préalablement à l'octroi du permis de construire s'il y a lieu, ou avant la réalisation du projet si le permis de construire n'est pas exigé.
L'autorisation est accordée par mètre carré de surface de vente.
Une nouvelle demande est nécessaire lorsque le projet, en cours d'instruction ou dans sa réalisation, subit des modifications substantielles dans la nature du commerce ou des surfaces de vente. Il en est de même en cas de modification de la ou des enseignes désignées par le pétitionnaire.
L'autorisation préalable requise pour la création de magasins de commerce de détail n'est ni cessible
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ni transmissible.
Section 3 : Du recours contre la décision de la commission départementale.
Article L752-17
A l'initiative du préfet, du maire de la commune d'implantation, du président de l'établissement public de coopération intercommunale visé au b du 1° du II de l'article L. 751-2, de celui visé au e du même 1° du même article ou du président du syndicat mixte visé au même e et de toute personne ayant intérêt à agir, la décision de la commission départementale d'aménagement commercial peut, dans un délai d'un mois, faire l'objet d'un recours devant la Commission nationale d'aménagement commercial. La commission nationale se prononce dans un délai de quatre mois à compter de sa saisine. La saisine de la commission nationale est un préalable obligatoire à un recours contentieux à peine d'irrecevabilité de ce dernier. Ce recours est également ouvert au médiateur du cinéma lorsque la commission départementale statue en matière d'aménagement cinématographique.
Article L752-18
Avant l'expiration du délai de recours ou, en cas de recours, avant la décision de la commission nationale, le permis de construire ne peut être accordé ni la réalisation entreprise et aucune nouvelle demande ne peut être déposée pour le même terrain d'assiette auprès de la commission départementale d'aménagement commercial.
Article L752-19
Le maire de la commune d'implantation membre de la commission départementale dont la décision fait l'objet du recours est entendu à sa demande par la commission nationale.
Un commissaire du Gouvernement nommé par le ministre chargé du commerce ou par le ministre chargé de la culture lorsque la commission se prononce en matière d'aménagement cinématographique assiste aux séances de la commission. Il rapporte les dossiers.
Article L752-20
Le président de la commission nationale a voix prépondérante en cas de partage égal des voix.
Article L752-21
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En cas de rejet pour un motif de fond de la demande d'autorisation par la commission nationale susmentionnée, il ne peut être déposé de nouvelle demande par le même pétitionnaire, pour un même projet, sur le même terrain pendant une période d'un an à compter de la date de la décision de la commission nationale.
Article L752-22
Les commissions autorisent ou refusent les projets dans leur totalité.
Lorsque les autorisations des commissions statuant en matière d'aménagement cinématographique s'appuient notamment sur le projet de programmation présenté par le demandeur, ce projet fait l'objet d'un engagement de programmation contracté en application de l'article 90 de la loi n° 82-652 du 29 juillet 1982 sur la communication audiovisuelle.
Article L752-23
Les agents habilités à rechercher et constater les infractions aux articles L. 752-1 à L. 752-3 en vertu de l'article 9 de la loi n° 89-1008 du 31 décembre 1989 relative au développement des entreprises commerciales et artisanales et à l'amélioration de leur environnement économique, juridique et social, constatant l'exploitation illicite d'une surface de vente, au regard du présent titre, établissent un rapport qu'ils transmettent au préfet du département d'implantation du magasin.
Le préfet peut mettre en demeure l'exploitant concerné de ramener sa surface commerciale à l'autorisation d'exploitation commerciale accordée par la commission d'aménagement commercial compétente, dans un délai d'un mois. Sans préjudice de l'application de sanctions pénales, il peut, à défaut, prendre un arrêté ordonnant, dans le délai de quinze jours, la fermeture au public des surfaces de vente exploitées illicitement, jusqu'à régularisation effective. Ces mesures sont assorties d'une astreinte journalière de 150 euros par mètre carré exploité illicitement.
Est puni d'une amende de 15 000 euros le fait de ne pas exécuter les mesures prises par le préfet et prévues au deuxième alinéa.
Les modalités d'application du présent article sont déterminées par décret en Conseil d'Etat.
Article L752-24
Un décret en Conseil d'Etat fixe les modalités d'application du présent chapitre.
Article L752-25
Tous les contrats d'un montant supérieur à un seuil défini par décret, passés par des personnes publiques ou privées à l'occasion de la réalisation d'un projet relevant du présent titre et dans une période de deux ans après l'achèvement dudit projet, sont communiqués, selon des modalités fixées par décret, par chaque partie contractante au préfet et à la chambre régionale des comptes. Cette
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obligation s'étend également aux contrats antérieurs à l'autorisation ou, à défaut, au permis de construire et portant sur la maîtrise ou l'aménagement des terrains sur lesquels est réalisée l'implantation d'établissements ayant bénéficié de l'autorisation.
Elle concerne les contrats de tout type, y compris ceux prévoyant des cessions à titre gratuit, des prestations en nature et des contreparties immatérielles.
Cette communication intervient dans les deux mois suivant la conclusion des contrats ou, s'il s'agit de contrats antérieurs à l'autorisation ou, à défaut, au permis de construire, dans un délai de deux mois à compter de l'autorisation. Toute infraction au présent article est punie d'une amende de 75 000 euros.
Article L752-26
En cas d'exploitation abusive d'une position dominante ou d'un état de dépendance économique de la part d'une entreprise ou d'un groupe d'entreprises exploitant un ou plusieurs magasins de commerce de détail, l'Autorité de la concurrence peut procéder aux injonctions et aux sanctions pécuniaires prévues à l'article L. 464-2.
Si les injonctions prononcées et les sanctions pécuniaires appliquées n'ont pas permis de mettre fin à l'abus de position dominante ou à l'état de dépendance économique, l'Autorité de la concurrence peut, par une décision motivée prise après réception des observations de l'entreprise ou du groupe d'entreprises en cause, lui enjoindre de modifier, de compléter ou de résilier, dans un délai déterminé, tous accords et tous actes par lesquels s'est constituée la puissance économique qui a permis ces abus. Elle peut, dans les mêmes conditions, lui enjoindre de procéder à la cession de surfaces, si cette cession constitue le seul moyen permettant de garantir une concurrence effective dans la zone de chalandise considérée.
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Partie législative
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce.
TITRE VI : Des marchés d'intérêt national et des manifestations commerciales.
Chapitre Ier : Des marchés d'intérêt national.
Article L761-1
Les marchés d'intérêt national sont des services publics de gestion de marchés, dont l'accès est réservé aux producteurs et aux commerçants, qui contribuent à l'organisation et à la productivité des circuits de distribution des produits agricoles et alimentaires, à l'animation de la concurrence dans ces secteurs économiques et à la sécurité alimentaire des populations.
Le classement de marchés de produits agricoles et alimentaires comme marchés d'intérêt national ou la création de tels marchés est prononcé sur proposition des conseils régionaux par décret.
Ces marchés peuvent être implantés sur le domaine public ou le domaine privé d'une ou plusieurs personnes morales de droit public ou sur des immeubles appartenant à des personnes privées.
Le déclassement d'un marché d'intérêt national peut être prononcé par arrêté du ministre chargé du commerce et du ministre chargé de l'agriculture sur proposition du conseil régional si l'activité du marché ne permet plus de répondre aux missions définies au premier alinéa ou à l'organisation générale déterminée dans les conditions fixées à l'article L. 761-10.
Article L761-2
La liste des marchés d'intérêt national dont l'Etat entend organiser l'aménagement et la gestion est fixée par décret.
Pour les autres marchés d'intérêt national, les communes sur le territoire desquelles ils sont implantés, ou les groupements de communes intéressés, en assurent l'aménagement et la gestion, en régie ou par la désignation d'une personne morale publique ou privée. Dans ce dernier cas, cette personne morale est désignée après mise en concurrence dans les conditions fixées par l'article L. 1411-1 du code général des collectivités territoriales.
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Ces communes, ou leurs groupements, peuvent toutefois confier ce pouvoir de désignation à la région ou, en Corse, à la collectivité territoriale de Corse.
Article L761-3
Le tarif des redevances perçues auprès des titulaires d'autorisation d'occupation ou des autres formes de contribution des usagers du marché à son fonctionnement est établi par le gestionnaire et approuvé par le préfet.
Le gestionnaire du marché présente un compte de résultat prévisionnel permettant de faire face à l'ensemble de ses obligations sociales, financières et sanitaires établies ou prévisibles.
Si l'exploitation financière d'un marché présente ou laisse prévoir un déséquilibre grave, les ministres de tutelle peuvent, après avoir conseillé le gestionnaire et, le cas échéant, les collectivités publiques qui ont garanti les emprunts, relever d'office les redevances existantes, créer des recettes nouvelles, réduire les dépenses et, d'une manière générale, prendre toutes dispositions propres à rétablir l'équilibre.
Article L761-4
Un périmètre de référence peut être institué autour du marché d'intérêt national par décret en Conseil d'Etat.
Le périmètre de référence comporte l'application des interdictions prévues à l'article L. 761-5.
Les interdictions prévues s'appliquent aux ventes et aux opérations accessoires à la vente de ceux des produits dont les listes sont fixées dans chaque cas par arrêté des ministres de tutelle.
Le décret mentionné au premier alinéa détermine l'implantation du marché d'intérêt national.
La suppression anticipée de tout ou partie du périmètre, l'extension de l'implantation du marché ou son transfert à l'intérieur du périmètre peuvent être déterminés par décision de l'autorité administrative compétente.
Article L761-5
Le décret instituant le périmètre de référence interdit, à l'intérieur de celui-ci, l'extension, le déplacement ou la création de tout établissement dans lequel une personne physique ou morale pratique, à titre autre que de détail, soit des ventes portant sur les produits, soit sur des opérations accessoires à ces ventes, dont les listes sont fixées par arrêté interministériel comme il est prévu au
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troisième alinéa de l'article L. 761-4.
Cette interdiction ne s'applique pas aux producteurs et groupements de producteurs pour les produits qui proviennent d'exploitations sises à l'intérieur du périmètre de référence.
N'est pas considéré comme une création d'établissement le changement de titulaire du fonds de commerce.
L'extension d'établissement s'entend soit de la création de nouvelles activités, soit de l'agrandissement des locaux commerciaux.
Les conditions d'application des dispositions du présent article sont fixées par décret en Conseil d'Etat.
Article L761-6
Lorsque le périmètre de référence d'un marché d'intérêt national englobe l'enceinte d'un port, les ventes autres que de détail portant sur des produits inscrits sur les listes mentionnées à l'article L. 761-4 obéissent dans cette enceinte aux dispositions suivantes.
Les interdictions prévues à l'article L. 761-5 ne sont pas applicables aux ventes qui concernent les produits acheminés directement par voie maritime dans ce port ou à partir de ce port et portent sur des lots dont l'importance dépasse les limites fixées par arrêté conjoint des ministres chargés de la tutelle des marchés d'intérêt national et du ministre chargé des ports.
Le décret instituant le périmètre de référence peut soit interdire dans l'enceinte du port les ventes à l'importation de produits acheminés par une voie autre que maritime, soit les autoriser seulement pour les lots d'une importance excédant certaines limites et dans les conditions qu'il détermine.
Article L761-7
A titre exceptionnel, l'autorité administrative compétente peut accorder des dérogations aux interdictions prévues aux articles L. 761-5 et L. 761-6, dans des conditions fixées par décret en Conseil d'Etat.
Article L761-8
Les infractions aux interdictions des articles L. 761-5 et L. 761-6 ainsi qu'aux dispositions prises en application de ces articles sont constatées et poursuivies dans les conditions fixées par le premier alinéa de l'article L. 450-1 et les articles L. 450-2 et L. 450-3 et sanctionnées d'une peine d'amende de 15 000 euros. Les articles L. 470-1 et L. 470-4 sont applicables.
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Article L761-9
Le droit d'occupation privative d'emplacement dont dispose un commerçant établi dans l'enceinte d'un marché d'intérêt national est susceptible d'être compris dans le nantissement de son fonds de commerce.
Article L761-10
Les dispositions législatives et réglementaires relatives à la tenue et à l'exploitation des marchés de produits agricoles et alimentaires ne sont pas applicables aux marchés d'intérêt national.
L'organisation générale des marchés d'intérêt national est déterminée par décret en Conseil d'Etat.
La modification de l'enceinte des marchés d'intérêt national dépourvus de périmètre de référence ainsi que leur transfert s'exercent librement.
Article L761-11
Le préfet exerce les pouvoirs de police dans l'enceinte du marché d'intérêt national. Dans l'étendue du périmètre de référence, il veille à l'application des lois et règlements intéressant le marché et dénonce, à cet effet, au procureur de la République les infractions commises. Lorsque le marché avec son périmètre de référence s'étend sur plusieurs départements, les pouvoirs ci-dessus appartiennent au préfet désigné par le ministre de l'intérieur.
Chapitre II : Des manifestations commerciales.
Article L762-1
Un parc d'exposition est un ensemble immobilier clos indépendant, doté d'installations et d'équipements appropriés ayant un caractère permanent et non soumis à l'autorisation prévue à l'article L. 752-1, qui accueille, pendant tout ou partie de l'année, des manifestations commerciales ou autres, à caractère temporaire.
Le parc d'exposition est enregistré auprès de l'autorité administrative compétente. Le programme des manifestations commerciales qu'il accueille fait chaque année l'objet d'une déclaration préalable auprès de l'autorité administrative compétente.
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Article L762-2
Un salon professionnel est une manifestation commerciale consacrée à la promotion d'un ensemble d'activités professionnelles réservée à des visiteurs justifiant d'un titre d'accès payant ou gratuit. Il ne propose à la vente sur place que des marchandises destinées à l'usage personnel de l'acquéreur, dont la valeur n'excède pas un plafond fixé par décret.
Tout salon professionnel fait l'objet d'une déclaration préalable auprès de l'autorité administrative compétente.
Article L762-3
Les conditions d'application du présent chapitre sont déterminées par un décret en Conseil d'Etat.
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Partie législative
LIVRE VIII : De quelques professions réglementées.
TITRE Ier : Des administrateurs judiciaires, mandataires judiciaires et experts en diagnostic d'entreprise.
Chapitre Ier : Des administrateurs judiciaires.
Section 1 : De la mission, des conditions d'accès et d'exercice et des incompatibilités.
Sous-section 1 : Des missions.
Article L811-1
Les administrateurs judiciaires sont les mandataires, personnes physiques ou morales, chargés par décision de justice d'administrer les biens d'autrui ou d'exercer des fonctions d'assistance ou de surveillance dans la gestion de ces biens.
Les tâches que comporte l'exécution de leur mandat leur incombent personnellement. Ils peuvent toutefois, lorsque le bon déroulement de la procédure le requiert et sur autorisation motivée du président du tribunal, confier sous leur responsabilité à des tiers une partie de ces tâches.
Lorsque les administrateurs judiciaires confient à des tiers des tâches qui relèvent de la mission que leur a confiée le tribunal, ils les rétribuent sur la rémunération qu'ils perçoivent .
Sous-section 2 : Des conditions d'accès à la profession.
Article L811-2
Nul ne peut être désigné en justice pour exercer ces fonctions, sous réserve des dispositions particulières à certaines matières, notamment celles relatives aux mineurs et aux majeurs protégés, ou sous réserve des missions occasionnelles qui peuvent être confiées aux membres des professions
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judiciaires et juridiques en matière civile, s'il n'est inscrit sur la liste établie par une commission nationale instituée à cet effet.
Toutefois, le tribunal peut, après avis du procureur de la République, désigner comme administrateur judiciaire une personne physique justifiant d'une expérience ou d'une qualification particulière au regard de la nature de l'affaire et remplissant les conditions définies aux 1° à 4° de l'article L. 811-5. Il motive spécialement sa décision au regard de cette expérience ou de cette qualification particulière.
Les personnes visées à l'alinéa précédent ne doivent pas, au cours des cinq années précédentes, avoir perçu à quelque titre que ce soit, directement ou indirectement, une rétribution ou un paiement de la part de la personne physique ou morale faisant l'objet d'une mesure d'administration, d'assistance ou de surveillance, d'une personne qui détient le contrôle de cette personne morale ou de l'une des sociétés contrôlées par elle au sens des II et III de l'article L. 233-16, ni s'être trouvées en situation de conseil de la personne physique ou morale concernée ou de subordination par rapport à elle. Elles doivent, en outre, n'avoir aucun intérêt dans le mandat qui leur est donné et n'être pas au nombre des anciens administrateurs ou mandataires judiciaires ayant fait l'objet d'une décision de radiation ou de retrait des listes en application des articles L. 811-6, L. 811-12 et L. 812-4. Elles sont tenues d'exécuter les mandats qui leur sont confiés en se conformant, dans l'accomplissement de leurs diligences professionnelles, aux mêmes obligations que celles qui s'imposent aux administrateurs judiciaires inscrits sur la liste. Elles ne peuvent exercer les fonctions d'administrateur judiciaire à titre habituel.
Les personnes désignées en application du deuxième alinéa doivent, lors de l'acceptation de leur mandat, attester sur l'honneur qu'elles remplissent les conditions fixées aux 1° à 4° de l'article L. 811-5 qu'elles se conforment aux obligations énumérées à l'alinéa précédent et qu'elles ne font pas l'objet d'une interdiction d'exercice en application de l'avant-dernier alinéa de l'article L. 814-10.
Lorsque le tribunal nomme une personne morale, il désigne en son sein une ou plusieurs personnes physiques pour la représenter dans l'accomplissement du mandat qui lui est confié.
Article L811-3
La liste nationale est divisée en sections correspondant au ressort de chaque cour d'appel.
Article L811-4
La commission nationale prévue à l'article L. 811-2 est composée ainsi qu'il suit :
- un conseiller à la Cour de cassation, président, désigné par le premier président de la Cour de cassation ;
- un magistrat de la Cour des comptes, désigné par le premier président de la Cour des comptes ;
- un membre de l'inspection générale des finances, désigné par le ministre chargé de l'économie et des finances ;
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- un magistrat du siège d'une cour d'appel, désigné par le premier président de la Cour de cassation ;
- un membre d'une juridiction commerciale du premier degré, désigné par le premier président de la Cour de cassation ;
- un professeur de droit, de sciences économiques ou de gestion, désigné par le ministre chargé des universités ;
- un représentant du Conseil d'Etat, désigné par le vice-président du Conseil d'Etat ;
- deux personnes qualifiées en matière économique ou sociale, désignées par le garde des sceaux, ministre de la justice ;
- trois administrateurs judiciaires, inscrits sur la liste, élus par leurs pairs dans des conditions déterminées par décret en Conseil d'Etat.
En cas d'égalité des voix, celle du président est prépondérante.
Le président et les membres de la commission ainsi que leurs suppléants, en nombre égal et choisis dans les mêmes catégories, sont désignés pour un mandat de trois ans renouvelable une fois.
Un magistrat du parquet et son suppléant sont désignés pour exercer les fonctions de commissaire du Gouvernement auprès de la commission nationale et assurer notamment l'instruction des demandes d'inscription.
Les frais de fonctionnement de la commission sont à la charge de l'Etat.
Article L811-5
Nul ne peut être inscrit sur la liste par la commission s'il ne remplit les conditions suivantes :
1° Etre français ou ressortissant d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen ;
2° N'avoir pas été l'auteur de faits contraires à l'honneur ou à la probité ayant donné lieu à une condamnation pénale ;
3° N'avoir pas été l'auteur de faits de même nature ayant donné lieu à une sanction disciplinaire ou administrative de destitution, de radiation, de révocation, de retrait d'agrément ou de retrait d'autorisation ;
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4° N'avoir pas été frappé de faillite personnelle ou d'une des mesures d'interdiction ou de déchéance prévues au chapitre V du titre II du livre VI du présent code, au titre VI de la loi n° 85-98 du 25 janvier 1985 relative au redressement et à la liquidation judiciaires des entreprises ou, dans le régime antérieur à cette loi, au titre II de la loi n° 67-563 du 13 juillet 1967 sur le règlement judiciaire, la liquidation des biens, la faillite personnelle et les banqueroutes ;
5° Avoir subi avec succès l'examen d'accès au stage professionnel, accompli ce stage et subi avec succès l'examen d'aptitude aux fonctions d'administrateur judiciaire.
Ne peuvent être admises à se présenter à l'examen d'accès au stage professionnel que les personnes titulaires des titres ou diplômes déterminés par décret.
Par dérogation aux dispositions qui précèdent, les personnes remplissant des conditions de compétence et d'expérience professionnelle fixées par décret en Conseil d'Etat sont dispensées de l'examen d'accès au stage professionnel. La commission peut, en outre, dispenser ces personnes, dans des conditions fixées par décret en Conseil d'Etat, d'une partie du stage professionnel et de tout ou partie de l'examen d'aptitude aux fonctions d'administrateur judiciaire.
Les personnes morales inscrites ne peuvent exercer les fonctions d'administrateur judiciaire que par l'intermédiaire d'un de leurs membres lui-même inscrit sur la liste.
Sont dispensées de conditions de diplôme, de stage et d'examen professionnel prévues aux sixième et septième alinéas les personnes qui justifient avoir acquis, dans un Etat membre des Communautés européennes autre que la France ou un autre Etat partie à l'accord sur l'Espace économique européen, une qualification suffisante pour l'exercice de la profession d'administrateur judiciaire, sous réserve d'avoir subi, dans des conditions fixées par décret en Conseil d'Etat, un examen de contrôle des connaissances. La liste des candidats admis à se présenter à l'examen est arrêtée par la commission.
Sous-section 3 : Des conditions d'exercice.
Article L811-6
La commission nationale, de sa propre initiative ou saisie sur requête du garde des sceaux, ministre de la justice, du président du Conseil national des administrateurs judiciaires et des mandataires judiciaires, du commissaire du Gouvernement ou du procureur de la République du ressort de la juridiction dans lequel est établi l'administrateur judiciaire, peut, par décision motivée et après avoir mis l'intéressé en demeure de présenter ses observations, retirer de la liste mentionnée à l'article L. 811-2 l'administrateur judiciaire qui, en raison de son état physique ou mental, est empêché d'assurer l'exercice normal de ses fonctions ou l'administrateur judiciaire qui a révélé son inaptitude à assurer l'exercice normal de ses fonctions.
Le retrait de la liste ne fait pas obstacle à l'exercice de poursuites disciplinaires contre l'administrateur judiciaire si les faits qui lui sont reprochés ont été commis pendant l'exercice de ses fonctions.
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Article L811-7
Les administrateurs judiciaires peuvent constituer entre eux, pour l'exercice en commun de leur profession, des sociétés civiles professionnelles régies par la loi n° 66-879 du 29 novembre 1966 relative aux sociétés civiles professionnelles. Ils peuvent également exercer leur profession sous forme de sociétés d'exercice libéral telles que prévues par la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est protégé. Ils peuvent aussi être membres d'un groupement d'intérêt économique ou d'un groupement européen d'intérêt économique ou associés d'une société en participation régie par le titre II de la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est protégé.
Article L811-8
Les dossiers suivis par l'administrateur judiciaire qui quitte ses fonctions, pour quelque motif que ce soit, sont répartis par la juridiction entre les autres administrateurs dans un délai de trois mois à compter de la cessation de fonctions.
Toutefois, dans l'intérêt d'une bonne administration de la justice, la juridiction peut autoriser l'ancien administrateur judiciaire à poursuivre le traitement d'un ou de plusieurs dossiers en cours, sauf si une radiation est la cause de l'abandon de ses fonctions. Cet administrateur judiciaire demeure soumis aux dispositions des articles L. 811-10 à L. 811-16, L. 814-1 et L. 814-5.
Article L811-9
Les personnes inscrites sur la liste ont vocation à exercer leurs fonctions sur l'ensemble du territoire.
Sous-section 4 : Des incompatibilités.
Article L811-10
La qualité d'administrateur judiciaire inscrit sur la liste est incompatible avec l'exercice de toute autre profession, à l'exception de celle d'avocat.
Elle est, par ailleurs, incompatible avec :
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1° Toutes les activités à caractère commercial, qu'elles soient exercées directement ou par personne interposée ;
2° La qualité d'associé dans une société en nom collectif, d'associé commandité dans une société en commandite simple ou par actions, de gérant d'une société à responsabilité limitée, de président du conseil d'administration, membre du directoire, directeur général ou directeur général délégué d'une société anonyme, de président ou de dirigeant d'une société par actions simplifiée, de membre du conseil de surveillance ou d'administrateur d'une société commerciale, de gérant d'une société civile, à moins que ces sociétés n'aient pour objet l'exercice de la profession d'administrateur judiciaire ou l'acquisition de locaux pour cet exercice. Un administrateur judiciaire peut en outre exercer les fonctions de gérant d'une société civile dont l'objet exclusif est la gestion d'intérêts à caractère familial.
La qualité d'administrateur judiciaire inscrit sur la liste ne fait pas obstacle à l'exercice d'une activité de consultation dans les matières relevant de la qualification de l'intéressé, ni à l'accomplissement des mandats de mandataire ad hoc et de conciliateur prévus aux articles L. 611-3 et L. 611-6 du présent code et par l'article L. 351-4 du code rural, de commissaire à l'exécution du plan, d'administrateur ou de liquidateur amiable, d'expert judiciaire et de séquestre amiable ou judiciaire. Cette activité et ces mandats, à l'exception des mandats de mandataire ad hoc, de conciliateur et de commissaire à l'exécution du plan, ne peuvent être exercés qu'à titre accessoire.
Les conditions du présent article sont, à l'exception du quatrième alinéa, applicables aux personnes morales inscrites.
Section 2 : De la surveillance, de l'inspection et de la discipline.
Sous-section 1 : De la surveillance et de l'inspection.
Article L811-11
Les administrateurs judiciaires sont placés sous la surveillance du ministère public. Ils sont soumis, dans leur activité professionnelle, à des inspections confiées à l'autorité publique et à l'occasion desquelles ils sont tenus de fournir tous renseignements ou documents utiles sans pouvoir opposer le secret professionnel.
L'organisation et les modalités de ces inspections sont déterminées par décret en Conseil d'Etat.
Dans le cadre du contrôle dont est chargé le conseil national mentionné à l'article L. 814-2, les administrateurs judiciaires sont tenus, sans pouvoir opposer le secret professionnel, de déférer aux demandes des personnes chargées du contrôle tendant à la communication de tous renseignements ou documents utiles.
Le commissaire aux comptes de l'administrateur judiciaire soumis à un contrôle ou à une inspection
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est tenu, sans pouvoir opposer le secret professionnel, de déférer aux demandes des personnes chargées du contrôle ou de l'inspection tendant à la communication de tout renseignement recueilli ou de tout document établi dans le cadre de l'exécution de sa mission.
La Caisse des dépôts et consignations est tenue, sans pouvoir opposer le secret professionnel, de déférer aux demandes des personnes chargées de l'inspection ainsi qu'à celles du conseil national mentionné à l'article L. 814-2 pour l'exercice du contrôle dont il est chargé, tendant à la communication de tout renseignement ou document utiles à la connaissance des mouvements de fonds intervenus sur les comptes ouverts dans ses livres au nom de chaque administrateur judiciaire et de sommes qui y sont déposées au titre des mandats sur lesquels porte l'inspection ou le contrôle.
Article L811-11-1
Les administrateurs judiciaires sont tenus de désigner un commissaire aux comptes qui assure le contrôle de leur comptabilité spéciale et exerce, à ce titre, une mission permanente de contrôle de l'ensemble des fonds, effets, titres et autres valeurs appartenant à autrui, dont les administrateurs judiciaires sont seuls détenteurs en vertu d'un mandat reçu dans l'exercice de leurs fonctions.
Ce contrôle porte également sur les comptes bancaires ou postaux ouverts pour les besoins de l'activité au nom des débiteurs faisant l'objet de l'une des procédures prévues au titre II du livre VI et qui fonctionnent sous la seule signature de l'administrateur ou de ses délégués dûment habilités.
Les commissaires aux comptes peuvent en outre, aux fins de contrôle, avoir accès à la comptabilité générale de l'étude, aux procédures confiées à l'administrateur et se faire communiquer par lui ou par les tiers détenteurs des fonds, nonobstant toute disposition contraire, tous renseignements utiles à leur mission de contrôle.
Article L811-11-2
Les commissaires aux comptes informent, dans des conditions fixées par décret en Conseil d'Etat, les autorités auxquelles sont confiées la surveillance, les inspections et le contrôle des administrateurs judiciaires, des résultats de leur mission et signalent les anomalies ou irrégularités dont ils ont connaissance au cours de l'exécution de leur mission.
Article L811-11-3
Le commissaire aux comptes du débiteur soumis à une procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire ne peut opposer le secret professionnel aux demandes du commissaire aux comptes de l'administrateur judiciaire tendant à la communication de tous renseignements ou documents relatifs au fonctionnement, à compter de la désignation de cet administrateur, des comptes bancaires ou postaux ouverts au nom du débiteur.
Sous-section 2 : De la discipline.
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Article L811-12 A
Toute contravention aux lois et règlements, toute infraction aux règles professionnelles, tout manquement à la probité ou à l'honneur, même se rapportant à des faits commis en dehors de l'exercice professionnel, expose l'administrateur judiciaire qui en est l'auteur à des poursuites disciplinaires.
Article L811-12
L'action disciplinaire est engagée par le garde des sceaux, ministre de la justice, le procureur général près la cour d'appel dans le ressort de laquelle ont été commis les faits, le commissaire du Gouvernement ou le président du Conseil national des administrateurs judiciaires et des mandataires judiciaires. L'acceptation de la démission d'une personne inscrite sur la liste des administrateurs judiciaires ne fait pas obstacle aux poursuites disciplinaires si les faits qui lui sont reprochés ont été commis pendant l'exercice de ses fonctions.
I. - La commission nationale d'inscription siège comme chambre de discipline. Le commissaire du Gouvernement y exerce les fonctions du ministère public. Elle peut prononcer les peines disciplinaires suivantes :
1° L'avertissement ;
2° Le blâme ;
3° L'interdiction temporaire pour une durée n'excédant pas trois ans ;
4° La radiation de la liste des administrateurs judiciaires.
II. - L'avertissement et le blâme peuvent être accompagnés, pendant un délai d'un an, de mesures de contrôle soumettant l'administrateur judiciaire à des obligations particulières déterminées par la commission. Ces obligations peuvent également être prescrites par la commission lorsque l'administrateur judiciaire interdit temporairement reprend ses fonctions.
III. - Lorsqu'elle prononce une peine disciplinaire, la commission peut décider, eu égard à la gravité des faits commis, de mettre à la charge de l'administrateur judiciaire tout ou partie des frais occasionnés par la présence d'un commissaire aux comptes ou d'un expert lors des contrôles ou des inspections ayant permis la constatation de ces faits.
Article L811-13
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Tout administrateur judiciaire qui fait l'objet d'une poursuite pénale ou disciplinaire peut être suspendu provisoirement de l'exercice de ses fonctions par le tribunal de grande instance du lieu où il est établi.
En cas d'urgence, la suspension provisoire peut être prononcée même avant l'exercice des poursuites pénales ou disciplinaires si des inspections ou vérifications ont laissé apparaître des risques pour les sommes perçues par l'administrateur judiciaire, à raison de ses fonctions.
Le tribunal peut, à tout moment, à la requête soit du commissaire du Gouvernement, soit de l'administrateur judiciaire, mettre fin à la suspension provisoire.
La suspension cesse de plein droit dès que les actions pénales ou disciplinaires sont éteintes. Elle cesse également de plein droit, dans le cas prévu au deuxième alinéa, si, à l'expiration d'un délai d'un mois à compter de son prononcé, aucune poursuite pénale ou disciplinaire n'a été engagée.
Article L811-14
L'action disciplinaire se prescrit par dix ans.
Article L811-15
L'administrateur judiciaire interdit, radié ou suspendu doit s'abstenir de tout acte professionnel.
Les actes accomplis au mépris de cette prohibition peuvent être déclarés nuls, à la requête de tout intéressé ou du ministère public, par le tribunal statuant en chambre du conseil. La décision est exécutoire à l'égard de toute personne.
Toute infraction aux dispositions qui précèdent est punie des peines encourues pour le délit d'usurpation de titre prévu par l'article 433-17 du code pénal.
Article L811-16
Nul ne peut faire état du titre d'administrateur judiciaire, en dehors de la mission qui lui a été confiée, en vertu du deuxième alinéa de l'article L. 811-2 ou du second alinéa de l'article L. 811-8 s'il n'est inscrit sur la liste des administrateurs judiciaires.
Toute infraction à cette disposition est punie des peines encourues pour le délit d'usurpation de titre prévu par l'article 433-17 du code pénal.
Est puni des mêmes peines celui qui aura fait usage d'une dénomination présentant une ressemblance de nature à causer une méprise dans l'esprit du public avec le titre d'administrateur
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judiciaire.
Chapitre II : Des mandataires judiciaires.
Section 1 : Des missions, des conditions d'accès et d'exercice et des incompatibilités.
Sous-section 1 : Des missions.
Article L812-1
Les mandataires judiciaires sont les mandataires, personnes physiques ou morales, chargés par décision de justice de représenter les créanciers et de procéder à la liquidation d'une entreprise dans les conditions définies par le titre II du livre VI.
Les tâches que comporte l'exécution de leur mandat leur incombent personnellement. Ils peuvent toutefois, lorsque le bon déroulement de la procédure le requiert et sur autorisation motivée du président du tribunal, confier sous leur responsabilité à des tiers une partie de ces tâches.
Lorsque les mandataires judiciaires confient à des tiers des tâches qui relèvent de la mission que leur a confiée le tribunal, ils les rétribuent sur la rémunération qu'ils perçoivent .
Sous-section 2 : Des conditions d'accès à la profession.
Article L812-2
I.-Nul ne peut être désigné en justice pour exercer les fonctions de mandataire judiciaire s'il n'est inscrit sur la liste établie à cet effet par une commission nationale.
II.-Toutefois, le tribunal peut, après avis du procureur de la République, désigner comme mandataire judiciaire une personne physique justifiant d'une expérience ou d'une qualification particulière au regard de la nature de l'affaire et remplissant les conditions définies aux 1° à 4° de l'article L. 812-3. Il motive spécialement sa décision au regard de cette expérience ou de cette qualification particulière.
Les personnes visées à l'alinéa précédent ne doivent pas, au cours des cinq années précédentes, avoir perçu à quelque titre que ce soit, directement ou indirectement, une rétribution ou un paiement de la part de la personne physique ou morale faisant l'objet d'une mesure de redressement ou de liquidation judiciaires, d'une personne qui détient le contrôle de cette personne morale ou de l'une des sociétés contrôlées par elle au sens des II et III de l'article L. 233-16, ni s'être trouvées en
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situation de conseil de la personne physique ou morale concernée ou de subordination par rapport à elle. Elles doivent, en outre, n'avoir aucun intérêt dans le mandat qui leur est donné et n'être pas au nombre des anciens administrateurs ou mandataires judiciaires ayant fait l'objet d'une décision de radiation ou de retrait des listes en application des articles L. 811-6, L. 811-12, L. 812-4 et L. 812-9. Elles sont tenues d'exécuter les mandats qui leur sont confiés en se conformant, dans l'accomplissement de leurs diligences professionnelles, aux mêmes obligations que celles qui s'imposent aux mandataires judiciaires inscrits sur la liste. Elles ne peuvent exercer les fonctions de mandataire judiciaire à titre habituel.
Les personnes désignées en application du premier alinéa du présent II doivent, lors de l'acceptation de leur mandat, attester sur l'honneur qu'elles remplissent les conditions fixées aux 1° à 4° de l'article L. 812-3, qu'elles se conforment aux obligations énumérées à l'alinéa précédent et qu'elles ne font pas l'objet d'une interdiction d'exercice en application de l'avant-dernier alinéa de l'article L. 814-10.
III.-Lorsque le tribunal nomme une personne morale, il désigne en son sein une ou plusieurs personnes physiques pour la représenter dans l'accomplissement du mandat qui lui est confié.
Article L812-2-1
La liste mentionnée à l'article L. 812-2 est divisée en sections correspondant au ressort de chaque cour d'appel.
Article L812-2-2
La commission nationale prévue à l'article L. 812-2 est composée ainsi qu'il suit :
- un conseiller à la Cour de cassation, président, désigné par le premier président de la Cour de cassation ;
- un magistrat de la Cour des comptes, désigné par le premier président de la Cour des comptes ;
- un membre de l'inspection générale des finances, désigné par le ministre chargé de l'économie et des finances ;
- un magistrat du siège d'une cour d'appel, désigné par le premier président de la Cour de cassation ;
- un membre d'une juridiction commerciale du premier degré, désigné par le premier président de la Cour de cassation ;
- un professeur de droit, de sciences économiques ou de gestion, désigné par le ministre chargé des universités ;
- un représentant du Conseil d'Etat, désigné par le vice-président du Conseil d'Etat ;
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- deux personnes qualifiées en matière économique ou sociale, désignées par le garde des sceaux, ministre de la justice ;
- trois mandataires judiciaires, inscrits sur la liste, élus par leurs pairs dans des conditions déterminées par décret en Conseil d'Etat. L'un d'eux est remplacé par une personne inscrite sur la liste des experts en diagnostic d'entreprise lorsque la commission donne, en application des dispositions du dernier alinéa de l'article L. 813-1, un avis sur l'inscription d'un expert de cette spécialité, sur sa radiation ou sur son retrait de la liste.
En cas d'égalité des voix, celle du président est prépondérante.
Le président et les membres de la commission ainsi que leurs suppléants, en nombre égal et choisis dans les mêmes catégories, sont désignés pour un mandat de trois ans renouvelable une fois.
Un magistrat du parquet et son suppléant sont désignés pour exercer les fonctions de commissaire du Gouvernement auprès de la commission nationale et assurer notamment l'instruction des demandes d'inscription.
Les frais de fonctionnement de la commission sont à la charge de l'Etat.
Article L812-3
Nul ne peut être inscrit sur la liste par la commission s'il ne remplit les conditions suivantes :
1° Etre français ou ressortissant d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen ;
2° N'avoir pas été l'auteur de faits contraires à l'honneur ou à la probité ayant donné lieu à une condamnation pénale ;
3° N'avoir pas été l'auteur de faits de même nature ayant donné lieu à une sanction disciplinaire ou administrative de destitution, de radiation, de révocation, de retrait d'agrément ou de retrait d'autorisation ;
4° N'avoir pas été frappé de faillite personnelle ou d'une des mesures d'interdiction ou de déchéance prévues au chapitre V du titre II du livre VI du présent code, au titre VI de la loi n° 85-98 du 25 janvier 1985 précitée ou, dans le régime antérieur à cette loi, au titre II de la loi n° 67-563 du 13 juillet 1967 précitée ;
5° Avoir subi avec succès l'examen d'accès au stage professionnel, accompli ce stage et subi avec succès l'examen d'aptitude aux fonctions de mandataire judiciaire.
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Ne peuvent être admises à se présenter à l'examen d'accès au stage professionnel que les personnes titulaires des titres ou diplômes déterminés par décret.
Par dérogation aux dispositions qui précèdent, les personnes remplissant des conditions de compétence et d'expérience professionnelle fixées par décret en Conseil d'Etat sont dispensées de l'examen d'accès au stage professionnel. La commission peut, en outre, dispenser ces personnes, dans des conditions fixées par décret en Conseil d'Etat, d'une partie du stage professionnel et de tout ou partie de l'examen d'aptitude aux fonctions de mandataire judiciaire.
Les personnes morales inscrites ne peuvent exercer les fonctions de mandataire judiciaire que par l'intermédiaire d'un de leurs membres lui-même inscrit sur la liste.
Sont dispensées des conditions de diplôme, de stage et d'examen professionnel prévues aux sixième et septième alinéas les personnes qui justifient avoir acquis, dans un Etat membre des communautés européennes autre que la France ou un autre Etat partie à l'accord sur l'Espace économique européen, une qualification suffisante pour l'exercice de la profession de mandataire judiciaire, sous réserve d'avoir subi, dans des conditions fixées par décret en Conseil d'Etat, un examen de contrôle des connaissances. La liste des candidats admis à se présenter à l'examen est arrêtée par la commission.
Sous-section 3 : Des conditions d'exercice.
Article L812-4
La commission nationale, de sa propre initiative ou saisie sur requête du garde des sceaux, ministre de la justice, du président du Conseil national des administrateurs judiciaires et des mandataires judiciaires, du commissaire du Gouvernement ou du procureur de la République du ressort de la juridiction dans lequel est établi le mandataire judiciaire, peut, par décision motivée et après avoir mis l'intéressé en demeure de présenter ses observations, retirer de la liste mentionnée à l'article L. 812-2 le mandataire judiciaire qui, en raison de son état physique ou mental, est empêché d'assurer l'exercice normal de ses fonctions ou le mandataire judiciaire qui a révélé son inaptitude à assurer l'exercice normal de ses fonctions.
Le retrait de la liste ne fait pas obstacle à l'exercice de poursuites disciplinaires contre le mandataire judiciaire si les faits qui lui sont reprochés ont été commis pendant l'exercice de ses fonctions.
Article L812-5
Les mandataires judiciaires peuvent constituer entre eux, pour l'exercice en commun de leur profession, des sociétés civiles professionnelles régies par la loi n° 66-879 du 29 novembre 1966 précitée. Ils peuvent également exercer leur profession sous forme de sociétés d'exercice libéral telles que prévues par la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est
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protégé. Ils peuvent aussi être membres d'un groupement d'intérêt économique ou d'un groupement européen d'intérêt économique ou associés d'une société en participation régie par le titre II de la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est protégé.
Article L812-6
Les dossiers suivis par le mandataire judiciaire qui quitte ses fonctions, pour quelque motif que ce soit, sont répartis par la juridiction entre les autres mandataires dans un délai de trois mois à compter de la cessation de fonctions.
Toutefois, dans l'intérêt d'une bonne administration de la justice, la juridiction peut autoriser l'ancien mandataire à poursuivre le traitement d'un ou de plusieurs dossiers en cours, sauf si une radiation est la cause de l'abandon de ses fonctions. Ce mandataire demeure soumis aux dispositions des articles L. 812-8 à L. 812-10, L. 814-1 et L. 814-5.
Article L812-7
Les personnes inscrites sur la liste ont vocation à exercer leurs fonctions sur l'ensemble du territoire.
Sous-section 4 : Des incompatibilités.
Article L812-8
La qualité de mandataire judiciaire inscrit sur la liste est incompatible avec l'exercice de toute autre profession.
Elle est, par ailleurs, incompatible avec :
1° Toutes les activités à caractère commercial, qu'elles soient exercées directement ou par personne interposée ;
2° La qualité d'associé dans une société en nom collectif, d'associé commandité dans une société en commandite simple ou par actions, de gérant d'une société à responsabilité limitée, de président du conseil d'administration, membre du directoire, directeur général ou directeur général délégué d'une société anonyme, de président ou de dirigeant d'une société par actions simplifiée, de membre du conseil de surveillance ou d'administrateur d'une société commerciale, de gérant d'une société civile, à moins que ces sociétés n'aient pour objet l'exercice de la profession de mandataire judiciaire ou l'acquisition de locaux pour cet exercice. Un mandataire peut en outre exercer les fonctions de gérant d'une société civile dont l'objet exclusif est la gestion d'intérêts à caractère
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familial.
La qualité de mandataire judiciaire inscrit sur la liste ne fait pas obstacle à l'exercice d'une activité de consultation dans les matières relevant de la qualification de l'intéressé, ni à l'accomplissement des mandats de mandataire ad hoc et de conciliateur prévus aux articles L. 611-3 et L. 611-6 du présent code et par l'article L. 351-4 du code rural, de commissaire à l'exécution du plan ou de liquidateur amiable des biens d'une personne physique ou morale, d'expert judiciaire et de séquestre judiciaire. Cette activité et ces mandats, à l'exception des mandats de mandataire ad hoc, de conciliateur et de commissaire à l'exécution du plan, ne peuvent être exercés qu'à titre accessoire. La même personne ne peut exercer successivement les fonctions de conciliateur puis de mandataire judiciaire avant l'expiration d'un délai d'un an lorsqu'il s'agit d'une même entreprise.
Les conditions du présent article sont, à l'exception du quatrième alinéa, applicables aux personnes morales inscrites.
Section 2 : De la surveillance, de l'inspection et de la discipline.
Article L812-9
Les dispositions relatives à la surveillance, à l'inspection et à la discipline des administrateurs judiciaires prévues par les articles L. 811-11 à L. 811-15 sont applicables aux mandataires judiciaires.
La commission nationale d'inscription siège comme chambre de discipline. Le commissaire du Gouvernement y exerce les fonctions du ministère public.
Article L812-10
Nul ne peut faire état du titre de mandataire judiciaire, en dehors de la mission qui lui a été confiée en vertu du premier alinéa du II de l'article L. 812-2 et du second alinéa de l'article L. 812-6, s'il n'est inscrit sur la liste des mandataires judiciaires.
Toute infraction à cette disposition est punie des peines encourues pour le délit d'usurpation de titre prévu par l'article 433-17 du code pénal.
Est puni des mêmes peines celui qui aura fait usage d'une dénomination présentant une ressemblance de nature à causer une méprise dans l'esprit du public avec le titre prévu au premier alinéa.
Chapitre III : Des experts en diagnostic d'entreprise.
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Article L813-1
Les experts en diagnostic d'entreprise sont désignés en justice pour établir un rapport sur la situation économique et financière d'une entreprise en cas de procédure de conciliation ou de procédure de sauvegarde ou de redressement judiciaire, ou concourir à l'élaboration d'un tel rapport en cas de procédure de sauvegarde ou de redressement judiciaire.
Ces experts ne doivent pas, au cours des cinq années précédentes, avoir perçu à quelque titre que ce soit, directement ou indirectement, une rétribution ou un paiement de la part de la personne physique ou morale faisant l'objet d'une mesure d'administration, d'assistance ou de surveillance ou de la part d'une personne qui détient le contrôle de cette personne morale, ni s'être trouvés en situation de subordination par rapport à la personne physique ou morale concernée. Ils doivent, en outre, n'avoir aucun intérêt dans le mandat qui leur est donné.
Les experts ainsi désignés doivent attester sur l'honneur, lors de l'acceptation de leur mandat, qu'ils se conforment aux obligations énumérées à l'alinéa précédent.
Ces experts peuvent être choisis parmi les experts de cette spécialité inscrits sur les listes dressées, pour l'information des juges, en application de l'article 2 de la loi n° 71-498 du 29 juin 1971 relative aux experts judiciaires.
Chaque cour d'appel procède à l'inscription des experts de cette spécialité selon les dispositions de l'article 2 de la loi n° 71-498 du 29 juin 1971 relative aux experts judiciaires. Leur inscription sur la liste nationale des experts judiciaires est faite après avis de la commission nationale créée à l'article L. 812-2.
Chapitre IV : Dispositions communes.
Section 1 : Des recours contre les décisions des commissions d'inscription et de la représentation auprès des pouvoirs publics.
Sous-section 1 : Des recours contre les décisions des commissions d'inscription.
Article L814-1
Les recours contre les décisions prises, tant en matière d'inscription ou de retrait que de discipline, par les commissions nationales sont portés devant la cour d'appel de Paris.
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Ces recours ont un caractère suspensif.
Sous-section 2 : De la représentation des professions auprès des pouvoirs publics.
Article L814-2
Les professions d'administrateur judiciaire et de mandataire judiciaire sont représentées auprès des pouvoirs publics par un Conseil national des administrateurs judiciaires et des mandataires judiciaires, établissement d'utilité publique doté de la personnalité morale, chargé d'assurer la défense des intérêts collectifs de ces professions. Il incombe, en outre, au conseil national de veiller au respect de leurs obligations par les mandataires de justice, d'organiser leur formation professionnelle, de s'assurer qu'ils se conforment à leur obligation d'entretien et de perfectionnement des connaissances, de contrôler leurs études et de rendre compte de l'accomplissement de ces missions dans un rapport qu'il adresse chaque année au garde des sceaux, ministre de la justice.
Les modes d'élection et de fonctionnement du conseil national, qui comprend en nombre égal un collège représentant les administrateurs judiciaires et un collège représentant les mandataires judiciaires, sont fixés par décret en Conseil d'Etat.
Section 2 : De la garantie de la représentation des fonds, de la responsabilité civile professionnelle et de la rémunération.
Sous-section 1 : De la garantie de la représentation des fonds et de la responsabilité civile professionnelle.
Article L814-3
Une caisse dotée de la personnalité civile et gérée par les cotisants a pour objet de garantir le remboursement des fonds, effets ou valeurs reçus ou gérés par chaque administrateur judiciaire et par chaque mandataire judiciaire inscrits sur les listes, à l'occasion des opérations dont ils sont chargés à raison de leurs fonctions. Deux magistrats du parquet sont désignés pour exercer, l'un en qualité de titulaire, l'autre de suppléant, les fonctions de commissaire du Gouvernement auprès de la caisse.
L'adhésion à cette caisse est obligatoire pour chaque administrateur judiciaire et pour chaque mandataire judiciaire inscrits sur les listes.
Les ressources de la caisse sont constituées par le produit d'une cotisation spéciale annuelle payée
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par chaque administrateur judiciaire et par chaque mandataire judiciaire inscrits sur les listes.
Les cotisations payées par les administrateurs judiciaires et par les mandataires judiciaires sont affectées à la garantie des seuls administrateurs judiciaires et mandataires judiciaires inscrits sur les listes.
Au cas où les ressources de la caisse s'avèrent insuffisantes pour exécuter ses obligations, elle procède à un appel de fonds complémentaire auprès des professionnels inscrits sur les listes.
La garantie de la caisse joue sans que puisse être opposé aux créanciers le bénéfice de discussion prévu à l'article 2298 du code civil et sur la seule justification de l'exigibilité de la créance et de la non-représentation des fonds par l'administrateur judiciaire ou le mandataire judiciaire inscrits sur les listes.
La caisse est tenue de s'assurer contre les risques résultant pour elle de l'application du présent code.
Les recours contre les décisions de la caisse sont portés devant le tribunal de grande instance de Paris.
Article L814-4
Il doit être justifié par chaque administrateur judiciaire ainsi que par chaque mandataire judiciaire inscrits sur les listes d'une assurance souscrite par l'intermédiaire de la caisse de garantie. Cette assurance couvre les conséquences pécuniaires de la responsabilité civile encourue par les administrateurs judiciaires et les mandataires judiciaires, du fait de leurs négligences ou de leurs fautes ou de celles de leurs préposés, commises dans l'exercice de leurs mandats.
Article L814-5
L'administrateur judiciaire non inscrit sur la liste nationale, désigné dans les conditions prévues par le deuxième alinéa de l'article L. 811-2, le mandataire judiciaire non inscrit sur la liste nationale, désigné dans les conditions prévues par le premier alinéa du II de l'article L. 812-2, doit justifier, lorsqu'il accepte sa mission, d'une garantie affectée au remboursement des fonds, effets ou valeurs ainsi que d'une assurance souscrite le cas échéant auprès de la caisse de garantie. Cette assurance couvre les conséquences pécuniaires de la responsabilité civile encourue par cet administrateur judiciaire ou ce mandataire judiciaire, du fait de ses négligences ou de ses fautes ou de celles de ses préposés, commises dans l'exercice de son mandat.
Section 3 : Dispositions diverses.
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Article L814-8
Lorsqu'un administrateur judiciaire ou un mandataire judiciaire inscrit sur les listes et désigné par une juridiction pour accomplir à l'égard d'une entreprise les missions prévues par les dispositions du livre VI est déjà intervenu pour le compte de celle-ci à titre de conseil ou au titre des missions prévues aux avant-derniers alinéas des articles L. 811-10 et L. 812-8, il informe la juridiction de la nature et de l'importance des diligences accomplies au cours des cinq années précédentes.
Le non-respect des dispositions de l'alinéa précédent est passible de poursuites disciplinaires.
Article L814-9
Les administrateurs judiciaires et les mandataires judiciaires inscrits sur les listes sont tenus de suivre une formation continue leur permettant d'entretenir et de perfectionner leurs connaissances. Cette formation est organisée par le conseil national mentionné à l'article L. 814-2.
Article L814-10
Les administrateurs judiciaires et les mandataires judiciaires non inscrits sur les listes nationales, désignés dans les conditions prévues au deuxième alinéa de l'article L. 811-2 ou au premier alinéa du II de l'article L. 812-2, sont placés sous la surveillance du ministère public et sont soumis, dans leur activité professionnelle, à des inspections de l'autorité publique à l'occasion desquelles ils sont tenus de fournir tous renseignements ou documents utiles sans pouvoir opposer le secret professionnel.
Les commissaires aux comptes des administrateurs ou mandataires judiciaires non inscrits et qui font l'objet d'une inspection sont tenus, sans pouvoir opposer le secret professionnel, de déférer aux demandes des personnes chargées de l'inspection tendant à la communication de tout renseignement recueilli ou de tout document établi dans le cadre de leur mission.
Le procureur de la République peut, dans le cas où ces mandataires de justice se verraient reprocher d'avoir commis un acte constitutif de la contravention, de l'infraction ou du manquement visés à l'article L. 811-12 A, demander au tribunal de grande instance de leur interdire d'exercer les fonctions d'administrateur ou de mandataire judiciaires.
Les mesures d'interdiction prononcées en application de l'alinéa précédent sont communiquées au garde des sceaux, ministre de la justice, pour être diffusées auprès des procureurs généraux.
Article L814-11
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Toute somme détenue par un administrateur judiciaire ou un mandataire judiciaire au titre d'un mandat amiable est versée, dès sa réception, en compte de dépôt à la Caisse des dépôts et consignations, sauf décision expresse du mandant de désigner un autre établissement financier. En cas de retard, l'administrateur judiciaire ou le mandataire judiciaire doit, pour les sommes qu'il n'a pas versées, un intérêt dont le taux est égal au taux de l'intérêt légal majoré de cinq points.
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Partie législative
LIVRE VIII : De quelques professions réglementées.
TITRE II : Des commissaires aux comptes.
Chapitre préliminaire : Dispositions générales.
Article L820-1
Nonobstant toute disposition contraire, les dispositions du présent titre sont applicables aux commissaires aux comptes nommés dans toutes les personnes et entités quelle que soit la nature de la certification prévue dans leur mission. Elles sont également applicables à ces personnes et entités, sous réserve des règles propres à celles-ci, quel que soit leur statut juridique.
Pour l'application du présent titre, le terme : "entité" désigne les fonds mentionnés aux articles L. 214-20 et L. 214-43 du code monétaire et financier.
Article L820-2
Nul ne peut se prévaloir du titre de commissaire aux comptes s'il ne remplit pas les conditions visées aux dispositions du présent titre.
Article L820-3
En vue de sa désignation, le commissaire aux comptes informe par écrit la personne ou l'entité dont il se propose de certifier les comptes de son affiliation à un réseau, national ou international, qui n'a pas pour activité exclusive le contrôle légal des comptes et dont les membres ont un intérêt économique commun. Le cas échéant, il l'informe également du montant global des honoraires perçus par ce réseau au titre des prestations qui ne sont pas directement liées à la mission du commissaire aux comptes, fournies par ce réseau à une personne ou entité contrôlée ou qui contrôle, au sens des I et II de l'article L. 233-3, la personne ou l'entité dont ledit commissaire aux comptes se propose de certifier les comptes. Ces informations sont intégrées aux documents mis à la disposition des actionnaires en application de l'article L. 225-108. Actualisées chaque année par le commissaire aux comptes, elles sont mises à la disposition, au siège de la personne dont il certifie les comptes, des associés et actionnaires et, pour les associations, des adhérents et donateurs.
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L'information sur le montant des honoraires versés à chacun des commissaires aux comptes est mise, au siège de la personne ou de l'entité contrôlée, à la disposition des associés et actionnaires et, pour les associations, des adhérents et donateurs.
Article L820-3-1
Les délibérations de l'organe mentionné au premier alinéa de l'article L. 823-1 prises à défaut de désignation régulière de commissaires aux comptes ou sur le rapport de commissaires aux comptes nommés ou demeurés en fonctions contrairement aux dispositions du présent titre ou à d'autres dispositions applicables à la personne ou à l'entité en cause sont nulles.
L'action en nullité est éteinte si ces délibérations sont expressément confirmées par l'organe compétent sur le rapport de commissaires aux comptes régulièrement désignés.
Article L820-4
Nonobstant toute disposition contraire :
1° Est puni d'un emprisonnement de deux ans et d'une amende de 30000 euros le fait, pour tout dirigeant de personne ou de l'entité tenue d'avoir un commissaire aux comptes, de ne pas en provoquer la désignation ou de ne pas le convoquer à toute assemblée générale ;
2° Est puni d'un emprisonnement de cinq ans et d'une amende de 75000 euros le fait, pour les dirigeants d'une personne morale ou toute personne ou entité au service d'une personne ou entité tenue d'avoir un commissaire aux comptes, de mettre obstacle aux vérifications ou contrôles des commissaires aux comptes ou des experts nommés en exécution des articles L. 223-37 et L. 225-231, ou de leur refuser la communication sur place de toutes les pièces utiles à l'exercice de leur mission et, notamment, de tous contrats, livres, documents comptables et registres de procès-verbaux.
Article L820-5
Est puni d'un an d'emprisonnement et de 15000 euros d'amende le fait, pour toute personne :
1° De faire usage du titre de commissaire aux comptes ou de titres quelconques tendant à créer une similitude ou une confusion avec celui-ci, sans être régulièrement inscrite sur la liste prévue au I de l'article L. 822-1 et avoir prêté serment dans les conditions prévues à l'article L. 822-10 ;
2° D'exercer illégalement la profession de commissaire aux comptes, en violation des dispositions du I de l'article L. 822-1 et de l'article L. 822-10 ou d'une mesure d'interdiction ou de suspension temporaire ;
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Les articles 226-13 et 226-14 du code pénal relatifs au secret professionnel sont applicables aux commissaires aux comptes.
Article L820-6
Est puni d'un emprisonnement de six mois et d'une amende de 7500 euros le fait, pour toute personne d'accepter, d'exercer ou de conserver les fonctions de commissaire aux comptes, nonobstant les incompatibilités légales, soit en son nom personnel, soit au titre d'associé dans une société de commissaires aux comptes.
Article L820-7
Est puni d'un emprisonnement de cinq ans et d'une amende de 75000 euros le fait, pour toute personne, de donner ou confirmer soit en son nom personnel, soit au titre d'associé dans une société de commissaires aux comptes des informations mensongères sur la situation de la personne morale ou de ne pas révéler au procureur de la République les faits délictueux dont il a eu connaissance.
Chapitre Ier : De l'organisation et du contrôle de la profession.
Article L821-1
Il est institué auprès du garde des sceaux, ministre de la justice, une autorité publique indépendante dotée de la personnalité morale, dénommée Haut Conseil du commissariat aux comptes, ayant pour mission :
-d'assurer la surveillance de la profession avec le concours de la Compagnie nationale des commissaires aux comptes instituée par l'article L. 821-6 ;
-de veiller au respect de la déontologie et de l'indépendance des commissaires aux comptes.
Pour l'accomplissement de cette mission, le Haut Conseil du commissariat aux comptes est en particulier chargé :
-d'identifier et de promouvoir les bonnes pratiques professionnelles ;
-d'émettre un avis sur les normes d'exercice professionnel élaborées par la Compagnie nationale des commissaires aux comptes avant leur homologation par arrêté du garde des sceaux, ministre de la justice ;
-d'assurer, comme instance d'appel des décisions des commissions régionales mentionnées à l'article L. 822-2, l'inscription des commissaires aux comptes ;
-d'assurer, comme instance d'appel des décisions prises par les chambres régionales mentionnées à
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l'article L. 822-6, la discipline des commissaires aux comptes ;
-de définir le cadre et les orientations des contrôles périodiques prévus au b de l'article L. 821-7 qu'il met en œuvre soit directement, soit en en déléguant l'exercice à la Compagnie nationale des commissaires aux comptes et aux compagnies régionales, ou qui sont réalisés par la Compagnie nationale et les compagnies régionales, selon les modalités prévues à l'article L. 821-9 ;
-de superviser les contrôles prévus au b et au c de l'article L. 821-7 et d'émettre des recommandations dans le cadre de leur suivi ;
-de veiller à la bonne exécution des contrôles prévus au b de l'article L. 821-7 et, lorsqu'ils sont effectués à sa demande, au c du même article ;
-d'établir des relations avec les autorités d'autres Etats exerçant des compétences analogues.
Les missions définies aux dixième et onzième alinéas du présent article sont exercées dans des conditions fixées par décret en Conseil d'Etat garantissant l'indépendance des fonctions de contrôle et de sanction.
Article L821-2
L'avis mentionné au sixième alinéa de l'article L. 821-1 est recueilli par le garde des sceaux, ministre de la justice, après consultation de l'Autorité des marchés financiers et de l'Autorité de contrôle prudentiel, dès lors qu'il intéresse leurs compétences respectives.
Article L821-3
Le Haut Conseil du commissariat aux comptes comprend :
1° Trois magistrats, dont un membre ou ancien membre de la Cour de cassation, président, un second magistrat de l'ordre judiciaire et un magistrat de la Cour des comptes ;
2° Le président de l'Autorité des marchés financiers ou son représentant, un représentant du ministre chargé de l'économie et un professeur des universités spécialisé en matière juridique, économique ou financière ;
3° Trois personnes qualifiées dans les matières économique et financière ; deux de celles-ci sont choisies pour leurs compétences dans les domaines des offres au public et des sociétés dont les titres financiers sont admis aux négociations sur un marché réglementé ; la troisième est choisie pour ses compétences dans le domaine des petites et moyennes entreprises, des personnes morales de droit privé ayant une activité économique ou des associations ;
4° Trois commissaires aux comptes, dont deux ayant une expérience du contrôle des comptes des personnes ou des entités qui procèdent à des offres au public ou qui font appel à la générosité publique.
Le président exerce ses fonctions à plein temps. En cas d'empêchement, il est suppléé par le second magistrat de l'ordre judiciaire.
Les décisions sont prises à la majorité des voix. En cas de partage égal des voix, la voix du président est prépondérante.
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Le président et les membres du Haut Conseil du commissariat aux comptes sont nommés par décret pour six ans renouvelables. Le Haut Conseil du commissariat aux comptes est renouvelé par moitié tous les trois ans.
Le Haut Conseil constitue des commissions consultatives spécialisées en son sein pour préparer ses décisions et avis. Celles-ci peuvent s'adjoindre, le cas échéant, des experts.
Article L821-3-1
Le personnel des services du Haut Conseil du commissariat aux comptes est composé d'agents publics détachés ou mis à sa disposition dans des conditions fixées par décret en Conseil d'Etat, d'agents contractuels de droit public et de salariés de droit privé. Ces personnes sont soumises au secret professionnel dans l'exercice de leurs missions.
Le secret professionnel n'est pas opposable au haut conseil et à ses services dans l'exercice de leurs missions, sauf par les auxiliaires de justice.
Article L821-4
Un commissaire du Gouvernement auprès du Haut Conseil du commissariat aux comptes est désigné par le garde des sceaux, ministre de la justice. Il siège avec voix consultative. En matière disciplinaire, le commissaire du Gouvernement n'assiste pas aux délibérations. Il peut, sauf en matière disciplinaire, demander une seconde délibération dans des conditions fixées par décret en Conseil d'Etat.
Article L821-5
I.-Le Haut Conseil du commissariat aux comptes dispose de l'autonomie financière. Il arrête son budget sur proposition du secrétaire général. Le haut conseil n'est pas soumis au contrôle financier exercé au sein des administrations de l'Etat. II.-Le haut conseil perçoit le produit des contribution et droit mentionnés aux III et IV. III.-Les personnes inscrites sur la liste de l'article L. 822-1 sont assujetties à une contribution annuelle, dont le montant est fixé à 10 euros. IV.-Il est institué un droit fixe sur chaque rapport de certification des comptes signé par les personnes inscrites sur la liste de l'article L. 822-1 dont le montant est fixé à : 1 000 euros pour les rapports de certification signés dans le cadre de missions conduites auprès de personnes ou d'entités admises à la négociation sur un marché réglementé ; 500 euros pour les rapports de certification signés dans le cadre de missions conduites auprès de personnes ou d'entités dont les titres financiers sont offerts au public sur un système multilatéral de négociation autre qu'un marché réglementé ; 20 euros pour les autres rapports de certification. V.-Les droit et contribution mentionnés aux III et IV sont recouvrés par la Compagnie nationale des commissaires aux comptes dans les mêmes formes que la cotisation mentionnée à l'article L. 821-6 et reversés au haut conseil avant le 31 mars de chaque année. Les conditions d'application du présent V sont déterminées par décret en Conseil d'Etat. VI.-Les biens immobiliers appartenant au haut conseil sont soumis aux dispositions du code général de la propriété des personnes publiques applicables aux établissements publics de l'Etat. VII.-Un décret en Conseil d'Etat fixe le régime comptable du haut conseil, ainsi que le régime indemnitaire de ses membres, de son président, de son secrétaire général et de son secrétaire général adjoint.
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Article L821-5-1
Aux fins mentionnées à l'avant-dernier alinéa de l'article L. 821-1, le Haut Conseil du commissariat aux comptes communique, à leur demande, les informations ou les documents qu'il détient ou qu'il recueille aux autorités des Etats membres de la Communauté européenne exerçant des compétences analogues aux siennes.
Il peut demander au garde des sceaux, ministre de la justice, de faire diligenter une inspection, conformément aux dispositions de l'article L. 821-8, ou faire diligenter par les contrôleurs mentionnés à l'article L. 821-9 les opérations de contrôle qu'il détermine, afin de répondre aux demandes d'assistance des autorités mentionnées au premier alinéa.
Lorsque l'une de ces autorités le demande, le garde des sceaux, ministre de la justice, peut autoriser les agents de cette autorité à assister aux opérations de contrôle mentionnées au deuxième alinéa.
Un décret en Conseil d'Etat détermine les conditions d'application du présent article.
Article L821-5-2
Aux fins mentionnées à l'avant-dernier alinéa de l'article L. 821-1, le Haut Conseil du commissariat aux comptes peut communiquer des informations ou des documents qu'il détient ou qu'il recueille aux autorités d'Etats non membres de la Communauté européenne exerçant des compétences analogues aux siennes sous réserve de réciprocité et à la condition que l'autorité concernée soit soumise au secret professionnel avec les mêmes garanties qu'en France.
Il peut, sous les mêmes réserve et condition, demander au garde des sceaux, ministre de la justice, de faire diligenter une inspection, conformément aux dispositions de l'article L. 821-8, ou faire diligenter par les contrôleurs mentionnés à l'article L. 821-9 les opérations de contrôle qu'il détermine afin de répondre aux demandes d'assistance des autorités mentionnées au premier alinéa.
Un décret en Conseil d'Etat détermine les conditions d'application du présent article, notamment les modalités de la coopération du Haut Conseil avec ces autorités et les conditions dans lesquelles ces modalités sont précisées par des conventions passées par le Haut Conseil avec ces autorités.
Article L821-5-3
Aux fins mentionnées aux deux articles précédents, le haut conseil est dispensé de l'application des dispositions de la loi n° 68-678 du 26 juillet 1968 relative à la communication de documents et renseignements d'ordre économique, commercial, industriel, financier ou technique à des personnes physiques ou morales étrangères.
Article L821-6
Il est institué auprès du garde des sceaux, ministre de la justice, une Compagnie nationale des
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commissaires aux comptes, établissement d'utilité publique doté de la personnalité morale, chargée de représenter la profession de commissaire aux comptes auprès des pouvoirs publics.
Elle concourt au bon exercice de la profession, à sa surveillance ainsi qu'à la défense de l'honneur et de l'indépendance de ses membres.
Il est institué une compagnie régionale des commissaires aux comptes, dotée de la personnalité morale, par ressort de cour d'appel. Toutefois, le garde des sceaux, ministre de la justice, peut procéder à des regroupements, sur proposition de la compagnie nationale et après consultation, par cette dernière, des compagnies régionales intéressées.
Les ressources de la compagnie nationale et des compagnies régionales sont constituées notamment par une cotisation annuelle à la charge des commissaires aux comptes.
Article L821-7
Les commissaires aux comptes sont soumis, dans leur activité professionnelle :
a) Aux inspections mentionnées à l'article L. 821-8 ;
b) A des contrôles périodiques organisés selon des modalités définies par le Haut Conseil ;
c) A des contrôles occasionnels décidés par la compagnie nationale ou les compagnies régionales, ou effectués à la demande du Haut Conseil.
Les personnes participant aux contrôles et inspections mentionnés au présent article sont soumises au secret professionnel.
Article L821-8
Le garde des sceaux, ministre de la justice, peut faire diligenter des inspections et demander, à cet effet, le concours de l'Autorité des marchés financiers, de la Compagnie nationale des commissaires aux comptes, et de l'Autorité de contrôle prudentiel.
L'Autorité des marchés financiers peut faire diligenter toute inspection d'un commissaire aux comptes d'une personne dont les titres financiers sont admis aux négociations sur un marché réglementé ou offerts au public sur un système multilatéral de négociation qui se soumet aux dispositions législatives ou réglementaires visant à protéger les investisseurs contre les opérations d'initiés, les manipulations de cours et la diffusion de fausses informations ou d'un organisme de placements collectifs et demander, à cet effet, le concours de la Compagnie nationale des commissaires aux comptes et, le cas échéant, des personnes et autorités énumérées au 2° de l'article L. 621-9-2 du code monétaire et financier. Le président de l'Autorité des marchés financiers ou son représentant ne siège pas au Haut Conseil lors de l'instance disciplinaire faisant, le cas échéant, suite à une telle inspection.
Article L821-9
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Les contrôles prévus au b de l'article L. 821-7 sont effectués, dans les conditions et selon les modalités définies par le Haut Conseil du commissariat aux comptes, par des contrôleurs n'exerçant pas de fonctions de contrôle légal des comptes ou par la Compagnie nationale des commissaires aux comptes ou les compagnies régionales.
Lorsque ces contrôles sont relatifs à des commissaires aux comptes nommés auprès de personnes dont les titres financiers sont admis aux négociations sur un marché réglementé ou offerts au public sur un système multilatéral de négociation qui se soumet aux dispositions législatives ou réglementaires visant à protéger les investisseurs contre les opérations d'initiés, les manipulations de cours et la diffusion de fausses informations ou d'organismes de placements collectifs, ils sont effectués avec le concours de l'Autorité des marchés financiers.
Les contrôles prévus au c de l'article L. 821-7 sont effectués par la Compagnie nationale ou les compagnies régionales, à leur initiative ou à la demande du Haut Conseil.
Article L821-10
Lorsque des faits d'une particulière gravité apparaissent de nature à justifier des sanctions pénales ou disciplinaires, le garde des sceaux, ministre de la justice, peut, dès l'engagement des poursuites, lorsque l'urgence et l'intérêt public le justifient, et après que l'intéressé a été mis en mesure de présenter ses observations, prononcer la suspension provisoire d'un commissaire aux comptes, personne physique. Le président de l'Autorité des marchés financiers et le président de la Compagnie nationale des commissaires aux comptes peuvent le saisir à cet effet.
Le garde des sceaux, ministre de la justice, peut à tout moment mettre fin à la suspension provisoire de sa propre initiative, à la demande de l'intéressé ou des autorités mentionnées au premier alinéa.
La suspension provisoire cesse de plein droit dès que les actions pénale et disciplinaire sont éteintes.
Article L821-11
Les conditions d'application des articles L. 821-3 et L. 821-6 à L. 821-10 sont fixées par décret en Conseil d'Etat.
Article L821-12
Les commissaires aux comptes sont tenus de fournir tous les renseignements et documents qui leur sont demandés à l'occasion des inspections et contrôles, sans pouvoir opposer le secret professionnel.
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Article L821-12-1
Lorsqu'elles constatent des faits susceptibles d'être liés au blanchiment de capitaux ou au financement du terrorisme, les personnes réalisant les contrôles et inspections prévus aux articles L. 821-7 et L. 821-8 en informent le service mentionné à l'article L. 561-23 du code monétaire et financier.
Article L821-13
Les commissaires aux comptes exercent leur mission conformément aux normes internationales d'audit adoptées par la Commission européenne dans les conditions définies par la directive 2006/43/CE du 17 mai 2006. En l'absence de norme internationale d'audit adoptée par la Commission, ils se conforment aux normes d'exercice professionnel élaborées par la Compagnie nationale des commissaires aux comptes et homologuées par le garde des sceaux, ministre de la justice, après avis du Haut Conseil du commissariat aux comptes.
Lorsqu'une norme internationale d'audit a été adoptée par la Commission européenne dans les conditions définies à l'alinéa précédent, le garde des sceaux, ministre de la justice, peut, d'office, après avis de la Compagnie nationale des commissaires aux comptes et du Haut Conseil du commissariat aux comptes, ou sur proposition de la Compagnie nationale et après avis du Haut Conseil, imposer des diligences ou des procédures complémentaires ou, à titre exceptionnel, écarter certains éléments de la norme afin de tenir compte de spécificités de la loi française. Les procédures et diligences complémentaires sont communiquées à la Commission européenne et aux autres Etats membres préalablement à la publication. Lorsqu'il écarte certains éléments d'une norme internationale, le garde des sceaux, ministre de la justice, en informe la Commission européenne et les autres Etats membres, en précisant les motifs de sa décision, six mois au moins avant la publication de l'acte qui le décide ou, lorsque ces spécificités existent déjà au moment de l'adoption de la norme internationale par la Commission européenne, trois mois au moins à compter de sa publication au Journal officiel des Communautés européennes.
Chapitre II : Du statut des commissaires aux comptes.
Section 1 : De l'inscription et de la discipline.
Sous-section 1 : De l'inscription.
Article L822-1
Nul ne peut exercer les fonctions de commissaire aux comptes s'il n'est préalablement inscrit sur une liste établie à cet effet.
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Article L822-1-1
Nul ne peut être inscrit sur la liste des commissaires aux comptes s'il ne remplit les conditions suivantes :
1° Etre français, ressortissant d'un Etat membre de la Communauté européenne, d'un Etat partie à l'accord sur l'Espace économique européen ou d'un autre Etat étranger lorsque celui-ci admet les nationaux français à exercer le contrôle légal des comptes ;
2° N'avoir pas été l'auteur de faits contraires à l'honneur ou à la probité ayant donné lieu à condamnation pénale ;
3° N'avoir pas été l'auteur de faits de même nature ayant donné lieu à une sanction disciplinaire de radiation ;
4° N'avoir pas été frappé de faillite personnelle ou de l'une des mesures d'interdiction ou de déchéance prévues au livre VI ;
5° Avoir accompli un stage professionnel, jugé satisfaisant, d'une durée fixée par voie réglementaire, chez une personne agréée par un Etat membre de la Communauté européenne pour exercer le contrôle légal des comptes ;
6° Avoir subi avec succès les épreuves du certificat d'aptitude aux fonctions de commissaire aux comptes ou être titulaire du diplôme d'expertise comptable.
Les conditions d'accomplissement du stage professionnel prévu au 5°, ainsi que les diplômes et conditions de formation permettant de se présenter aux épreuves du certificat d'aptitude aux fonctions de commissaire aux comptes mentionné au 6° sont déterminés par décret en Conseil d'Etat.
Article L822-1-2
Par dérogation aux dispositions de l'article L. 822-1-1, les personnes remplissant des conditions de compétence et d'expérience professionnelle fixées par décret en Conseil d'Etat peuvent être dispensées de tout ou partie du stage professionnel visé au 5° du même article, sur décision du garde des sceaux, ministre de la justice.
Sont dispensées, dans des conditions déterminées par décret en Conseil d'Etat, des conditions de diplôme, de stage et d'examen prévues aux 5° et 6° de l'article L. 822-1-1, les personnes qui justifient avoir acquis, dans un Etat membre de la Communauté européenne ou dans un autre Etat admettant les nationaux français à exercer le contrôle légal des comptes, une qualification suffisante pour l'exercice du contrôle légal des comptes, sous réserve de subir un examen d'aptitude.
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Article L822-1-3
Sauf lorsqu'ils interviennent auprès de personnes ou d'entités qui émettent uniquement des titres de créances admis à la négociation sur un marché réglementé en France dont la valeur nominale unitaire est au moins égale à 50 000 € ou, pour des titres de créances libellés dans une devise autre que l'euro, dont la valeur nominale unitaire est équivalente à 50 000 € au moins à la date d'émission, les commissaires aux comptes et sociétés de commissaires aux comptes agréés dans un Etat non membre de la Communauté européenne ou non partie à l'accord sur l'Espace économique européen qui certifient les comptes annuels ou les comptes consolidés de personnes ou d'entités n'ayant pas leur siège dans un Etat membre de la Communauté européenne ou dans un autre Etat partie à l'accord sur l'Espace économique européen mais émettant des titres admis à la négociation sur un marché réglementé en France s'inscrivent sur la liste prévue à l'article L. 822-1.
Sous réserve de réciprocité, peuvent être exemptés de l'obligation d'inscription les commissaires aux comptes et sociétés de commissaires aux comptes agréés dans un Etat non membre de la Communauté européenne ou non partie à l'Espace économique européen qui bénéficient d'une dispense délivrée par arrêté du garde des sceaux, ministre de la justice.
La dispense d'inscription peut être délivrée lorsque :
a) Les commissaires aux comptes et sociétés de commissaires aux comptes sont agréés par les autorités compétentes d'un Etat au sujet duquel la Commission européenne, sur le fondement de l'article 46 de la directive 2006 / 43 / CE du Parlement européen et du Conseil du 17 mai 2006, a pris une décision par laquelle elle reconnaît qu'est satisfaite l'exigence d'équivalence que pose cet article en ce qui concerne le système de supervision publique, d'assurance qualité, d'enquête et de sanctions ;
b) En l'absence de décision de la Commission européenne, le système de supervision publique, d'assurance qualité, d'enquête et de sanctions de l'Etat dans lequel les commissaires aux comptes et sociétés de commissaires aux comptes sont agréés répond à des exigences équivalentes à celles requises par les articles L. 820-1 et suivants ou ce système a été précédemment évalué par un autre Etat membre et reconnu équivalent.
Les commissaires aux comptes et sociétés de commissaires aux comptes inscrits sur la liste prévue à l'article L. 822-1 en application du présent article sont soumis aux dispositions du chapitre Ier et de la section 1 du chapitre II du présent livre, pour ce qui concerne les missions mentionnées au premier alinéa.
L'inscription ou la dispense d'inscription conditionne la validité en France des rapports de certification signés par ces professionnels, sans conférer à leur titulaire le droit de conduire des missions de contrôle légal des comptes auprès de personnes ou d'entités dont le siège est situé sur le territoire français.
Les conditions d'application du présent article sont déterminées par décret en Conseil d'Etat.
Article L822-2
Une commission régionale d'inscription est établie au siège de chaque cour d'appel. Elle dresse et révise la liste mentionnée à l'article L. 822-1.
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Chaque commission régionale d'inscription est composée de :
1° Un magistrat de l'ordre judiciaire qui en assure la présidence ;
2° Un magistrat de la chambre régionale des comptes ;
3° Un professeur des universités spécialisé en matière juridique, économique ou financière ;
4° Deux personnes qualifiées en matière juridique, économique ou financière ;
5° Un représentant du ministre chargé de l'économie ;
6° Un membre de la compagnie régionale des commissaires aux comptes.
Le président et les membres de la commission régionale d'inscription et leurs suppléants sont nommés par arrêté du garde des sceaux, ministre de la justice, pour une durée de trois ans renouvelable.
Les décisions sont prises à la majorité des voix. En cas de partage égal des voix, la voix du président est prépondérante.
Les recours contre les décisions des commissions régionales d'inscription sont portés devant le Haut Conseil du commissariat aux comptes.
Article L822-3
Tout commissaire aux comptes doit prêter, devant la cour d'appel dont il relève, le serment de remplir les devoirs de sa profession avec honneur, probité et indépendance, respecter et faire respecter les lois.
Article L822-4
Toute personne inscrite sur la liste de l'article L. 822-1 qui n'a pas exercé des fonctions de commissaire aux comptes pendant trois ans est tenue de suivre une formation continue particulière avant d'accepter une mission de certification.
Article L822-5
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Les conditions d'application de la présente sous-section sont déterminées par décret en Conseil d'Etat.
Sous-section 2 : De la discipline.
Article L822-6
La commission régionale d'inscription, constituée en chambre régionale de discipline, connaît de l'action disciplinaire intentée contre un commissaire aux comptes membre d'une compagnie régionale, quel que soit le lieu où les faits qui lui sont reprochés ont été commis.
Article L822-7
La chambre régionale de discipline peut être saisie par le garde des sceaux, ministre de la justice, le procureur de la République, le président de la Compagnie nationale des commissaires aux comptes ou le président de la compagnie régionale.
Outre les personnes déterminées par décret en Conseil d'Etat, le président de l'Autorité des marchés financiers peut saisir le procureur général aux fins d'exercice de l'action disciplinaire. Lorsqu'il a exercé cette faculté, il ne peut siéger dans la formation disciplinaire du Haut Conseil saisi de la même procédure.
Les décisions de la chambre régionale de discipline sont susceptibles de recours devant le Haut Conseil du commissariat aux comptes, à l'initiative des autorités mentionnées au présent article ainsi que du professionnel intéressé.
Un magistrat de l'ordre judiciaire, désigné par le garde des sceaux, ministre de la justice, appartenant au parquet général ou au parquet, exerce les fonctions de ministère public auprès de chaque chambre régionale et auprès du Haut Conseil statuant en matière disciplinaire.
Les conditions d'application du présent article sont déterminées par décret en Conseil d'Etat.
Article L822-8
- Les sanctions disciplinaires sont :
1° L'avertissement ;
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2° Le blâme ;
3° L'interdiction temporaire pour une durée n'excédant pas cinq ans ;
4° La radiation de la liste.
Il peut être aussi procédé au retrait de l'honorariat.
L'avertissement, le blâme ainsi que l'interdiction temporaire peuvent être assortis de la sanction complémentaire de l'inéligibilité aux organismes professionnels pendant dix ans au plus.
La sanction de l'interdiction temporaire peut être assortie du sursis. La suspension de la peine ne s'étend pas à la sanction complémentaire prise en application de l'alinéa précédent. Si, dans le délai de cinq ans à compter du prononcé de la sanction, le commissaire aux comptes a commis une infraction ou une faute ayant entraîné le prononcé d'une nouvelle sanction disciplinaire, celle-ci entraîne, sauf décision motivée, l'exécution de la première sanction sans confusion possible avec la seconde.
Lorsqu'ils prononcent une sanction disciplinaire, le Haut Conseil et les chambres régionales peuvent décider de mettre à la charge du commissaire aux comptes tout ou partie des frais occasionnés par les inspections ou contrôles ayant permis la constatation des faits sanctionnés.
Section 2 : De la déontologie et de l'indépendance des commissaires aux comptes.
Article L822-9
Les fonctions de commissaire aux comptes sont exercées par des personnes physiques ou des sociétés constituées entre elles sous quelque forme que ce soit.
Les trois quarts des droits de vote des sociétés de commissaires aux comptes sont détenus par des commissaires aux comptes ou des sociétés de commissaires aux comptes inscrits sur la liste prévue à l'article L. 822-1 ou des professionnels régulièrement agréés dans un autre Etat membre de la Communauté européenne pour l'exercice du contrôle légal des comptes. Lorsqu'une société de commissaires aux comptes a une participation dans le capital d'une autre société de commissaires aux comptes, les actionnaires ou associés non commissaires aux comptes ne peuvent détenir plus d'un quart de l'ensemble des droits de vote des deux sociétés.
Les fonctions de gérant, de président du conseil d'administration ou du directoire, de président du conseil de surveillance et de directeur général sont assurées par des commissaires aux comptes inscrits sur la liste prévue à l'article L. 822-1 ou régulièrement agréés dans un autre Etat membre de la Communauté européenne pour l'exercice du contrôle légal des comptes. Les trois quarts au moins des membres des organes de gestion, d'administration, de direction ou de surveillance doivent être
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des commissaires aux comptes inscrits sur la liste prévue à l'article L. 822-1 ou régulièrement agréés dans un autre Etat membre de la Communauté européenne pour l'exercice du contrôle légal des comptes. Les représentants permanents des sociétés de commissaires aux comptes associés ou actionnaires doivent être des commissaires aux comptes inscrits sur la liste prévue à l'article L. 822-1 ou régulièrement agréés dans un autre Etat membre de la Communauté européenne pour l'exercice du contrôle légal des comptes.
Dans les sociétés de commissaires aux comptes inscrites, les fonctions de commissaire aux comptes sont exercées, au nom de la société, par des commissaires aux comptes personnes physiques associés, actionnaires ou dirigeants de cette société. Ces personnes ne peuvent exercer les fonctions de commissaire aux comptes qu'au sein d'une seule société de commissaires aux comptes. Les membres du conseil d'administration ou du conseil de surveillance peuvent être salariés de la société sans limitation de nombre ni condition d'ancienneté au titre de la qualité de salarié.
En cas de décès d'un actionnaire ou associé commissaire aux comptes, ses ayants droit disposent d'un délai de deux ans pour céder leurs actions ou parts à un commissaire aux comptes.
L'admission de tout nouvel actionnaire ou associé est subordonnée à un agrément préalable qui, dans les conditions prévues par les statuts, peut être donné soit par l'assemblée des actionnaires ou des porteurs de parts, soit par le conseil d'administration ou le conseil de surveillance ou les gérants selon le cas.
Par dérogation à ces dispositions, l'exercice de ces fonctions est possible simultanément au sein d'une société de commissaires aux comptes et d'une autre société de commissaires aux comptes dont la première détient plus de la moitié du capital social ou dans le cas où les associés des deux entités sont communs pour au moins la moitié d'entre eux.
Article L822-10
Les fonctions de commissaire aux comptes sont incompatibles :
1° Avec toute activité ou tout acte de nature à porter atteinte à son indépendance ;
2° Avec tout emploi salarié ; toutefois, un commissaire aux comptes peut dispenser un enseignement se rattachant à l'exercice de sa profession ou occuper un emploi rémunéré chez un commissaire aux comptes ou chez un expert-comptable ;
3° Avec toute activité commerciale, qu'elle soit exercée directement ou par personne interposée.
Article L822-11
I.-Le commissaire aux comptes ne peut prendre, recevoir ou conserver, directement ou indirectement, un intérêt auprès de la personne ou de l'entité dont il est chargé de certifier les comptes, ou auprès d'une personne qui la contrôle ou qui est contrôlée par elle, au sens des I et II de
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l'article L. 233-3.
Sans préjudice des dispositions contenues dans le présent livre ou dans le livre II, le code de déontologie prévu à l'article L. 822-16 définit les liens personnels, financiers et professionnels, concomitants ou antérieurs à la mission du commissaire aux comptes, incompatibles avec l'exercice de celle-ci. Il précise en particulier les situations dans lesquelles l'indépendance du commissaire aux comptes est affectée, lorsqu'il appartient à un réseau pluridisciplinaire, national ou international, dont les membres ont un intérêt économique commun, par la fourniture de prestations de services à une personne ou à une entité contrôlée ou qui contrôle, au sens des I et II de l'article L. 233-3, la personne ou l'entité dont les comptes sont certifiés par ledit commissaire aux comptes. Le code de déontologie précise également les restrictions à apporter à la détention d'intérêts financiers par les salariés et collaborateurs du commissaire aux comptes dans les sociétés dont les comptes sont certifiés par lui.
II.-Il est interdit au commissaire aux comptes de fournir à la personne ou à l'entité qui l'a chargé de certifier ses comptes, ou aux personnes ou entités qui la contrôlent ou qui sont contrôlées par celle-ci au sens des I et II du même article, tout conseil ou toute autre prestation de services n'entrant pas dans les diligences directement liées à la mission de commissaire aux comptes, telles qu'elles sont définies par les normes d'exercice professionnel mentionnées au sixième alinéa de l'article L. 821-1.
Lorsqu'un commissaire aux comptes est affilié à un réseau national ou international, dont les membres ont un intérêt économique commun et qui n'a pas pour activité exclusive le contrôle légal des comptes, il ne peut certifier les comptes d'une personne ou d'une entité qui, en vertu d'un contrat conclu avec ce réseau ou un membre de ce réseau, bénéficie d'une prestation de services, qui n'est pas directement liée à la mission du commissaire aux comptes selon l'appréciation faite par le Haut Conseil du commissariat aux comptes en application du troisième alinéa de l'article L. 821-1.
Article L822-12
Les commissaires aux comptes et les membres signataires d'une société de commissaires aux comptes ne peuvent être nommés dirigeants ou salariés des personnes ou entités qu'ils contrôlent, moins de cinq années après la cessation de leurs fonctions.
Pendant ce même délai, ils ne peuvent exercer les mêmes fonctions dans une personne ou entité contrôlée ou qui contrôle au sens des I et II de l'article L. 233-3 la personne ou entité dont ils ont certifié les comptes.
Article L822-13
Les personnes ayant été dirigeants ou salariés d'une personne ou entité ne peuvent être nommées commissaires aux comptes de cette personne ou entité moins de cinq années après la cessation de leurs fonctions.
Pendant le même délai, elles ne peuvent être nommées commissaires aux comptes des personnes ou
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entités possédant au moins 10 % du capital de la personne ou de l'entité dans laquelle elles exerçaient leurs fonctions, ou dont celle-ci possédait au moins 10 % du capital lors de la cessation de leurs fonctions.
Les interdictions prévues au présent article pour les personnes ou entités mentionnées au premier alinéa sont applicables aux sociétés de commissaires aux comptes dont lesdites personnes ou entités sont associées, actionnaires ou dirigeantes.
Article L822-14
Le commissaire aux comptes, personne physique, et, dans les sociétés de commissaires aux comptes, le ou les associés signataires ainsi que, le cas échéant, tout autre associé principal au sens du 16 de l'article 2 de la directive 2006 / 43 / CE du Parlement européen et du Conseil, du 17 mai 2006, concernant les contrôles légaux des comptes annuels et des comptes consolidés et modifiant les directives 78 / 660 / CEE et 83 / 349 / CEE, et abrogeant la directive 84 / 253 / CEE du Conseil, ne peuvent certifier durant plus de six exercices consécutifs les comptes des personnes et entités dont les titres financiers sont admis à la négociation sur un marché réglementé.
Ils ne peuvent à nouveau participer à une mission de contrôle légal des comptes de ces personnes ou entités avant l'expiration d'un délai de deux ans à compter de la date de clôture du sixième exercice qu'ils ont certifié.
Cette disposition est également applicable aux personnes et entités visées à l'article L. 612-1 et aux associations visées à l'article L. 612-4 dès lors que ces personnes font appel à la générosité publique au sens de l'article 3 de la loi n° 91-772 du 7 août 1991.
Article L822-15
Sous réserve des dispositions de l'article L. 823-12 et des dispositions législatives particulières, les commissaires aux comptes, ainsi que leurs collaborateurs et experts, sont astreints au secret professionnel pour les faits, actes et renseignements dont ils ont pu avoir connaissance à raison de leurs fonctions. Toutefois, ils sont déliés du secret professionnel à l'égard du président du tribunal de commerce ou du tribunal de grande instance lorsqu'ils font application des dispositions du chapitre IV du titre III du livre II ou du chapitre II du titre Ier du livre VI.
Lorsqu'une personne morale établit des comptes consolidés, les commissaires aux comptes de la personne morale consolidante et les commissaires aux comptes des personnes consolidées sont, les uns à l'égard des autres, libérés du secret professionnel. Ces dispositions s'appliquent également lorsqu'une personne établit des comptes combinés.
Les commissaires aux comptes procédant à une revue indépendante ou contribuant au dispositif de contrôle de qualité interne sont astreints au secret professionnel.
Article L822-16
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Un décret en Conseil d'Etat approuve un code de déontologie de la profession, après avis du Haut Conseil du commissariat aux comptes et, pour les dispositions s'appliquant aux commissaires aux comptes intervenant auprès des personnes et entités dont les titres financiers sont admis aux négociations sur un marché réglementé ou offerts au public sur un système multilatéral de négociation qui se soumet aux dispositions législatives ou réglementaires visant à protéger les investisseurs contre les opérations d'initiés, les manipulations de cours et la diffusion de fausses informations, de l'Autorité des marchés financiers.
Section 3 : De la responsabilité civile.
Article L822-17
Les commissaires aux comptes sont responsables, tant à l'égard de la personne ou de l'entité que des tiers, des conséquences dommageables des fautes et négligences par eux commises dans l'exercice de leurs fonctions.
Leur responsabilité ne peut toutefois être engagée à raison des informations ou divulgations de faits auxquelles ils procèdent en exécution de leur mission.
Ils ne sont pas civilement responsables des infractions commises par les dirigeants et mandataires sociaux, sauf si, en ayant eu connaissance, ils ne les ont pas signalées dans leur rapport à l'assemblée générale ou à l'organe compétent mentionnés à l'article L. 823-1.
Article L822-18
Les actions en responsabilité contre les commissaires aux comptes se prescrivent dans les conditions prévues à l'article L. 225-254.
Chapitre III : De l'exercice du contrôle légal.
Section 1 : De la nomination, de la récusation et de la révocation des commissaires aux comptes.
Article L823-1
En dehors des cas de nomination statutaire, les commissaires aux comptes sont désignés par l'assemblée générale ordinaire dans les personnes morales qui sont dotées de cette instance ou par
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l'organe exerçant une fonction analogue compétent en vertu des règles qui s'appliquent aux autres personnes ou entités.
Un ou plusieurs commissaires aux comptes suppléants, appelés à remplacer les titulaires en cas de refus, d'empêchement, de démission ou de décès sont désignés dans les mêmes conditions.
Les fonctions du commissaire aux comptes suppléant appelé à remplacer le titulaire prennent fin à la date d'expiration du mandat confié à ce dernier, sauf si l'empêchement n'a qu'un caractère temporaire. Dans ce dernier cas, lorsque l'empêchement a cessé, le titulaire reprend ses fonctions après l'approbation des comptes par l'assemblée générale ou l'organe compétent.
Lorsque le commissaire aux comptes a vérifié, au cours des deux derniers exercices, les opérations d'apports ou de fusion de la société ou des sociétés que celle-ci contrôle au sens des I et II de l'article L. 233-16, le projet de résolution le désignant en fait état.
Article L823-2
Les personnes et entités astreintes à publier des comptes consolidés désignent au moins deux commissaires aux comptes.
Article L823-3
Les commissaires aux comptes sont nommés pour six exercices. Leurs fonctions expirent après la délibération de l'assemblée générale ou de l'organe compétent qui statue sur les comptes du sixième exercice.
Le commissaire aux comptes nommé en remplacement d'un autre ne demeure en fonction que jusqu'à l'expiration du mandat de son prédécesseur.
Le commissaire aux comptes dont la mission est expirée, qui a été révoqué, relevé de ses fonctions, suspendu, interdit temporairement d'exercer, radié, omis ou a donné sa démission permet au commissaire aux comptes lui succédant d'accéder à toutes les informations et à tous les documents pertinents concernant la personne ou l'entité dont les comptes sont certifiés.
Article L823-4
Si l'assemblée ou l'organe compétent omet de désigner un commissaire aux comptes, tout membre de l'assemblée ou de l'organe compétent peut demander en justice la désignation d'un commissaire aux comptes, le représentant légal de la personne ou de l'entité dûment appelé. Le mandat ainsi conféré prend fin lorsqu'il a été pourvu par l'assemblée ou l'organe compétent à la nomination du ou des commissaires.
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Article L823-5
Lorsqu'une société de commissaires aux comptes est absorbée par une autre société de commissaires aux comptes, la société absorbante poursuit le mandat confié à la société absorbée jusqu'à la date d'expiration de ce dernier.
Toutefois, par dérogation aux dispositions de l'article L. 823-3, l'assemblée générale ou l'organe compétent de la personne ou de l'entité contrôlée peut, lors de sa première réunion postérieure à l'absorption, délibérer sur le maintien du mandat, après avoir entendu le commissaire aux comptes.
Article L823-6
Un ou plusieurs actionnaires ou associés représentant au moins 5 % du capital social, le comité d'entreprise, le ministère public, l'Autorité des marchés financiers pour les personnes dont les titres financiers sont admis aux négociations sur un marché réglementé et entités peuvent, dans le délai et les conditions fixées par décret en Conseil d'Etat, demander en justice la récusation pour juste motif d'un ou plusieurs commissaires aux comptes.
Les dispositions de l'alinéa précédent sont applicables, en ce qui concerne les personnes autres que les sociétés commerciales, sur demande du cinquième des membres de l'assemblée générale ou de l'organe compétent.
S'il est fait droit à la demande, un nouveau commissaire aux comptes est désigné en justice. Il demeure en fonctions jusqu'à l'entrée en fonctions du commissaire aux comptes désigné par l'assemblée ou l'organe compétent.
Article L823-7
En cas de faute ou d'empêchement, les commissaires aux comptes peuvent, dans les conditions fixées par décret en Conseil d'Etat, être relevés de leurs fonctions avant l'expiration normale de celles-ci, sur décision de justice, à la demande de l'organe collégial chargé de l'administration, de l'organe chargé de la direction, d'un ou plusieurs actionnaires ou associés représentant au moins 5 % du capital social, du comité d'entreprise, du ministère public ou de l'Autorité des marchés financiers pour les personnes dont les titres financiers sont admis aux négociations sur un marché réglementé et entités.
Les dispositions de l'alinéa précédent sont applicables, en ce qui concerne les personnes autres que les sociétés commerciales, sur demande du cinquième des membres de l'assemblée générale ou de l'organe compétent.
Article L823-8
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Lorsque, à l'expiration des fonctions d'un commissaire aux comptes, il est proposé à l'assemblée ou à l'organe compétent de ne pas le renouveler, le commissaire aux comptes doit, sous réserve des dispositions de l'article L. 822-14 et s'il le demande, être entendu par l'assemblée ou l'organe compétent.
Section 2 : De la mission du commissaire aux comptes.
Article L823-9
Les commissaires aux comptes certifient, en justifiant de leurs appréciations, que les comptes annuels sont réguliers et sincères et donnent une image fidèle du résultat des opérations de l'exercice écoulé ainsi que de la situation financière et du patrimoine de la personne ou de l'entité à la fin de cet exercice.
Lorsqu'une personne ou une entité établit des comptes consolidés, les commissaires aux comptes certifient, en justifiant de leurs appréciations, que les comptes consolidés sont réguliers et sincères et donnent une image fidèle du patrimoine, de la situation financière ainsi que du résultat de l'ensemble constitué par les personnes et entités comprises dans la consolidation.
Sans préjudice des dispositions de l'article L. 823-14, la certification des comptes consolidés est délivrée notamment après examen des travaux des commissaires aux comptes des personnes et entités comprises dans la consolidation ou, s'il n'en est point, des professionnels chargés du contrôle des comptes desdites personnes et entités.
Article L823-10
Les commissaires aux comptes ont pour mission permanente, à l'exclusion de toute immixtion dans la gestion, de vérifier les valeurs et les documents comptables de la personne ou de l'entité dont ils sont chargés de certifier les comptes et de contrôler la conformité de sa comptabilité aux règles en vigueur.
Ils vérifient également la sincérité et la concordance avec les comptes annuels des informations données dans le rapport de gestion du conseil d'administration, du directoire ou de tout organe de direction, et dans les documents adressés aux actionnaires ou associés sur la situation financière et les comptes annuels. Ils attestent spécialement l'exactitude et la sincérité des informations relatives aux rémunérations et aux avantages de toute nature versés à chaque mandataire social.
Ils vérifient, le cas échéant, la sincérité et la concordance avec les comptes consolidés des informations données dans le rapport sur la gestion du groupe.
Article L823-11
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Les commissaires aux comptes s'assurent que l'égalité a été respectée entre les actionnaires, associés ou membres de l'organe compétent.
Article L823-12
Les commissaires aux comptes signalent à la plus prochaine assemblée générale ou réunion de l'organe compétent les irrégularités et inexactitudes relevées par eux au cours de l'accomplissement de leur mission.
Ils révèlent au procureur de la République les faits délictueux dont ils ont eu connaissance, sans que leur responsabilité puisse être engagée par cette révélation.
Sans préjudice de l'obligation de révélation des faits délictueux mentionnée à l'alinéa précédent, ils mettent en œuvre les obligations relatives à la lutte contre le blanchiment des capitaux et le financement du terrorisme définies au chapitre Ier du titre VI du livre V du code monétaire et financier.
Section 3 : Des modalités d'exercice de la mission.
Article L823-12-1
Les commissaires aux comptes exercent leurs diligences selon une norme d'exercice professionnel spécifique dans les sociétés en nom collectif, les sociétés en commandite simple, les sociétés à responsabilité limitée et les sociétés par actions simplifiées qui ne dépassent pas, à la clôture d'un exercice social, deux des seuils suivants, fixés par décret en Conseil d'Etat : le total de leur bilan, le montant hors taxes de leur chiffre d'affaires ou le nombre moyen de leurs salariés. Cette norme est homologuée par arrêté du garde des sceaux, ministre de la justice.
Article L823-13
A toute époque de l'année, les commissaires aux comptes, ensemble ou séparément, opèrent toutes vérifications et tous contrôles qu'ils jugent opportuns et peuvent se faire communiquer sur place toutes les pièces qu'ils estiment utiles à l'exercice de leur mission et notamment tous contrats, livres, documents comptables et registres des procès-verbaux.
Pour l'accomplissement de leurs contrôles, les commissaires aux comptes peuvent, sous leur responsabilité, se faire assister ou représenter par tels experts ou collaborateurs de leur choix, qu'ils font connaître nommément à la personne ou à l'entité dont ils sont chargés de certifier les comptes. Ces experts ou collaborateurs ont les mêmes droits d'investigation que les commissaires aux comptes.
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Article L823-14
Les investigations prévues à l'article L. 823-13 peuvent être faites tant auprès de la personne ou de l'entité dont les commissaires aux comptes sont chargés de certifier les comptes que des personnes ou entités qui la contrôlent ou qui sont contrôlées par elle au sens de l'article L. 233-3. Elles peuvent également être faites, pour l'application du deuxième alinéa de l'article L. 823-9, auprès de l'ensemble des personnes ou entités comprises dans la consolidation.
Les commissaires aux comptes peuvent également recueillir toutes informations utiles à l'exercice de leur mission auprès des tiers qui ont accompli des opérations pour le compte de la personne ou de l'entité. Toutefois, ce droit d'information ne peut s'étendre à la communication des pièces, contrats et documents quelconques détenus par des tiers, à moins qu'ils n'y soient autorisés par une décision de justice.
Le secret professionnel ne peut être opposé aux commissaires aux comptes dans le cadre de leur mission, sauf par les auxiliaires de justice.
Article L823-15
Lorsque la personne ou l'entité est astreinte à désigner deux commissaires aux comptes, ceux-ci se livrent ensemble à un examen contradictoire des conditions et des modalités d'établissement des comptes, selon les prescriptions énoncées par une norme d'exercice professionnel établie conformément au sixième alinéa de l'article L. 821-1. Une norme d'exercice professionnel détermine les principes de répartition des diligences à mettre en oeuvre par chacun des commissaires aux comptes pour l'accomplissement de leur mission.
Article L823-16
Les commissaires aux comptes portent à la connaissance, selon le cas, de l'organe collégial chargé de l'administration ou de l'organe chargé de la direction et de l'organe de surveillance, ainsi que, le cas échéant, du comité spécialisé agissant sous la responsabilité exclusive et collective de ces organes :
1° Leur programme général de travail mis en oeuvre ainsi que les différents sondages auxquels ils ont procédé ;
2° Les modifications qui leur paraissent devoir être apportées aux comptes devant être arrêtés ou aux autres documents comptables, en faisant toutes observations utiles sur les méthodes d'évaluation utilisées pour leur établissement ;
3° Les irrégularités et les inexactitudes qu'ils auraient découvertes ;
4° Les conclusions auxquelles conduisent les observations et rectifications ci-dessus sur les résultats de la période comparés à ceux de la période précédente.
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Lorsqu'ils interviennent auprès de personnes ou d'entités soumises aux dispositions de l'article L. 823-19 ou qui se sont volontairement dotées d'un comité spécialisé au sens dudit article, ils examinent en outre avec le comité spécialisé mentionné à cet article les risques pesant sur leur indépendance et les mesures de sauvegarde prises pour atténuer ces risques. Ils portent à la connaissance de ce comité les faiblesses significatives du contrôle interne, pour ce qui concerne les procédures relatives à l'élaboration et au traitement de l'information comptable et financière, et lui communiquent chaque année :
a) Une déclaration d'indépendance ;
b) Une actualisation des informations mentionnées à l'article L. 820-3 détaillant les prestations fournies par les membres du réseau auquel les commissaires aux comptes sont affiliés ainsi que les prestations accomplies au titre des diligences directement liées à la mission (1).
Article L823-17
Les commissaires aux comptes sont convoqués à toutes les réunions du conseil d'administration ou du directoire et du conseil de surveillance, ou de l'organe collégial d'administration ou de direction et de l'organe de surveillance qui examinent ou arrêtent des comptes annuels ou intermédiaires, ainsi qu'à toutes les assemblées d'actionnaires ou d'associés ou à toutes les réunions de l'organe compétent mentionné à l'article L. 823-1.
Article L823-18
Les honoraires des commissaires aux comptes sont supportés par la personne ou l'entité dont ils sont chargés de certifier les comptes. Ces honoraires sont fixés selon des modalités déterminées par décret en Conseil d'Etat.
La chambre régionale de discipline et, en appel, le Haut Conseil du commissariat aux comptes sont compétents pour connaître de tout litige tenant à la rémunération des commissaires aux comptes.
Article L823-19
Au sein des personnes et entités dont les titres sont admis à la négociation sur un marché réglementé, ainsi que dans les établissements de crédit mentionnés à l'article L. 511-1 du code monétaire et financier, les entreprises d'assurances et de réassurances, les mutuelles régies par le livre II du code de la mutualité et les institutions de prévoyance régies par le titre III du livre IX du code de la sécurité sociale, un comité spécialisé agissant sous la responsabilité exclusive et collective des membres, selon le cas, de l'organe chargé de l'administration ou de l'organe de surveillance assure le suivi des questions relatives à l'élaboration et au contrôle des informations comptables et financières.
La composition de ce comité est fixée, selon le cas, par l'organe chargé de l'administration ou de la surveillance. Le comité ne peut comprendre que des membres de l'organe chargé de l'administration
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ou de la surveillance en fonctions dans la société, à l'exclusion de ceux exerçant des fonctions de direction. Un membre au moins du comité doit présenter des compétences particulières en matière financière ou comptable et être indépendant au regard de critères précisés et rendus publics par l'organe chargé de l'administration ou de la surveillance.
Sans préjudice des compétences des organes chargés de l'administration, de la direction et de la surveillance, ce comité est notamment chargé d'assurer le suivi :
a) Du processus d'élaboration de l'information financière ;
b) De l'efficacité des systèmes de contrôle interne et de gestion des risques ;
c) Du contrôle légal des comptes annuels et, le cas échéant, des comptes consolidés par les commissaires aux comptes ;
d) De l'indépendance des commissaires aux comptes.
Il émet une recommandation sur les commissaires aux comptes proposés à la désignation par l'assemblée générale ou l'organe exerçant une fonction analogue.
Il rend compte régulièrement à l'organe collégial chargé de l'administration ou à l'organe de surveillance de l'exercice de ses missions et l'informe sans délai de toute difficulté rencontrée.
Article L823-20
Sont exemptés des obligations mentionnées à l'article L. 823-19 :
1° Les personnes et entités contrôlées au sens de l'article L. 233-16, lorsque la personne ou l'entité qui les contrôle est elle-même soumise aux dispositions de l'article L. 823-19 ;
2° Les organismes de placement collectif mentionnés à l'article L. 214-1 du code monétaire et financier ;
3° Les établissements de crédit dont les titres ne sont pas admis à la négociation sur un marché réglementé et qui n'ont émis, de manière continue ou répétée, que des titres obligataires, à condition que le montant total nominal de ces titres reste inférieur à 100 millions d'euros et qu'ils n'aient pas publié de prospectus ;
4° Les personnes et entités disposant d'un organe remplissant les fonctions du comité spécialisé mentionné à l'article L. 823-19, sous réserve d'identifier cet organe, qui peut être l'organe chargé de l'administration ou l'organe de surveillance, et de rendre publique sa composition.
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Partie législative
LIVRE IX : Dispositions relatives à l'outre-mer.
TITRE Ier : Dispositions spécifiques à Saint-Pierre-et-Miquelon.
Article L910-1
Ne sont pas applicables à Saint-Pierre-et-Miquelon les articles :
1° L. 125-3, L. 126-1 ;
2° L. 225-245-1, L. 229-1 à L. 229-15, L. 238-6, L. 244-5 et L. 252-1 à L. 252-13 ;
3° L. 470-6 ;
4° L. 522-1 à L. 522-40 et L. 524-20 ;
5° L. 711-2 (4°), L. 711-4 (dernier alinéa), L. 711-6 à L. 711-10, L. 712-4, L. 712-5, L. 713-6 à L. 713-10, L. 713-11 à L. 713-18 en tant qu'ils concernent les délégués consulaires ; L. 721-1, L. 721-2, L. 722-1 à L. 724-7, L. 741-1 à L. 743-11, L. 750-1 à L. 761-11.
Article L910-2
Pour l'application du présent code à Saint-Pierre-et-Miquelon, les termes énumérés ci-après sont remplacés comme suit :
1° " Tribunal de grande instance " ou " tribunal d'instance " par " tribunal de première instance " ;
2° " Tribunal de commerce " ou " justice consulaire " par " tribunal de première instance statuant en matière commerciale " ;
3° " Département " ou " arrondissement " par " collectivité territoriale " ;
4° " Bulletin officiel des annonces civiles et commerciales " par " Recueil des actes administratifs de la collectivité territoriale ".
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Article L910-3
Les références faites, par des dispositions du présent code applicables à Saint-Pierre-et-Miquelon, à d'autres articles du présent code, ne concernent que les articles rendus applicables dans la collectivité avec les adaptations prévues dans les chapitres ci-dessous.
Article L910-4
En l'absence d'adaptation, les références faites par des dispositions du présent code applicables à Saint-Pierre-et-Miquelon, à des dispositions qui n'y sont pas applicables, sont remplacées par les références aux dispositions ayant le même objet applicables localement.
Article L910-5
Les articles faisant référence à la Communauté européenne sont applicables dans le respect de la décision d'association prévue à l'article 136 du traité instituant la Communauté européenne. Les références à l'accord sur l'Espace économique européen ne sont pas applicables.
Chapitre Ier : Dispositions d'adaptation du livre Ier.
Article L911-1
A l'article L. 122-1, les mots : "par le préfet du département dans lequel il envisage d'exercer pour la première fois son activité" sont remplacés par les mots : "par le préfet de la collectivité dans le cas où l'étranger doit y exercer pour la première fois son activité".
Article L911-2
Les dérogations prévues par les articles L. 123-25 à L. 123-27 sont applicables aux personnes physiques soumises à un régime simplifié d'imposition par la réglementation en vigueur à Saint-Pierre-et-Miquelon.
Article L911-3
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A l'article L. 133-7, les mots : " les droits, taxes, frais et amendes de douane liés à une opération de transport " sont supprimés.
Article L911-4
L'inscription au greffe du tribunal de première instance statuant en matière commerciale dispense de la formalité de l'enregistrement les actes et déclarations qui y sont soumis en application de l'article L. 141-5.
Article L911-5
Pour l'application des articles L. 141-15, L. 143-7 et L. 145-28, un magistrat du tribunal de première instance peut être délégué par le président.
Article L911-6
A l'article L. 141-13, les mots : " par les articles 638 et 653 du code général des impôts " sont remplacés par les mots :
" par les dispositions de droit fiscal applicables localement ".
Article L911-7
A l'article L. 144-5, les mots : " les articles L. 3211-2 et L. 3212-1 à L. 3212-12 du code de la santé publique " sont remplacés par les mots : " les articles du code de la santé publique applicable localement relatifs à l'hospitalisation et à l'internement avec ou sans le consentement de l'intéressé ".
Article L911-8
L'article L. 145-2 est modifié ainsi qu'il suit :
I. - Au 4°, les mots : " à l'Etat, aux départements, aux communes, aux établissements publics " sont remplacés par les mots : " à l'Etat, aux collectivités territoriales et aux établissements publics " ;
II. - Au 6°, les mots : " à la caisse de sécurité sociale de la maison des artistes et reconnus auteurs d'oeuvres graphiques et plastiques, tels que définis par l'article 71 de l'annexe III du code général
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des impôts " sont remplacés par les mots : " à la caisse locale d'assurance sociale et reconnus auteurs d'oeuvres graphiques et plastiques au sens du code des impôts applicable localement ".
Article L911-9
Pour l'application de l'article L. 145-6, les mots : "l'évacuation des lieux compris dans un secteur ou périmètre prévu aux articles L. 313-4 et L. 313-4-2 du code de l'urbanisme" sont remplacés par les mots : "l'évacuation des lieux prévue à l'article L. 145-18".
Article L911-10
A l'article L. 145-13, les mots : " sous réserve des dispositions de la loi du 28 mai 1943 relative à l'application aux étrangers des lois en matière de baux à loyer et de baux à ferme " sont supprimés.
Article L911-11
Le deuxième alinéa de l'article L. 145-18 est ainsi rédigé :
" Il en est de même pour effectuer des opérations de restauration immobilière comportant des travaux de remise en état, de conservation, de modernisation ou de démolition ayant pour conséquence la transformation des conditions d'habitabilité d'un ensemble d'immeubles nécessitant l'évacuation des lieux. Ces opérations peuvent être décidées et exécutées dans le respect de la réglementation locale, soit par les autorités publiques localement compétentes, soit à l'initiative d'un ou de plusieurs propriétaires, groupés ou non en association syndicale. Dans ce dernier cas, ce ou ces propriétaires y sont spécialement autorisés dans des conditions fixées par le représentant de l'Etat, qui précisent notamment les engagements exigés des propriétaires quant à la nature et à l'importance des travaux. Les immeubles acquis par un organisme de rénovation ne peuvent, après restauration, être cédés de gré à gré qu'aux conditions d'un cahier des charges type approuvé par le représentant de l'Etat. "
Article L911-12
A l'article L. 145-26, après les mots : " à l'Etat, aux départements, aux communes ", sont ajoutés les mots : " à la collectivité territoriale ".
Article L911-13
Le premier alinéa de l'article L. 145-34 est ainsi rédigé :
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" A moins d'une modification notable des éléments déterminant la valeur locative, le taux de variation du loyer applicable lors de la prise d'effet du bail à renouveler, si sa durée n'est pas supérieure à neuf ans, ne peut excéder la variation d'un indice local trimestriel mesurant le coût de la construction intervenue depuis la fixation initiale du loyer du bail expiré. Cet indice est calculé dans des conditions déterminées par arrêté du représentant de l'Etat. A défaut de clause contractuelle fixant le trimestre de référence de cet indice, il y a lieu de prendre en compte une variation de l'indice local trimestriel mesurant le coût de la construction fixé à cet effet par l'arrêté précité. "
Article L911-14
L'article L. 145-35 est modifié ainsi qu'il suit :
I. - Au premier alinéa, le mot : " départementale " est supprimé ;
II. - Le dernier alinéa est ainsi rédigé :
" La composition de la commission, le mode de désignation de ses membres et ses règles de fonctionnement sont fixés par arrêté du représentant de l'Etat. "
Chapitre II : Dispositions d'adaptation du livre II.
Article L912-1
Aux articles L. 223-18, L. 225-36 et L. 225-65, les mots : "dans le même département ou un département limitrophe" sont remplacés par les mots : "dans la collectivité".
Article L912-1-1
Les mots : "la loi n° 2005-882 du 2 août 2005 en faveur des petites et moyennes entreprises " et les mots : "la loi n° 2005-882 du 2 août 2005 précitée" figurant au troisième et au quatrième alinéa de l'article L. 223-30 sont remplacés respectivement par les mots : "l'ordonnance n° 2008-697 du 11 juillet 2008 relative à l'application à Saint-Pierre-et-Miquelon de la loi n° 2005-882 du 2 août 2005 en faveur des petites et moyennes entreprises et réformant la chambre interprofessionnelle de Saint-Pierre-et-Miquelon" et par les mots : "l'ordonnance n° 2008-697 du 11 juillet 2008 précitée."
Article L912-2
Le dernier alinéa de l'article L. 225-43 et celui de l'article L. 225-91 sont supprimés.
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Article L912-3
Au deuxième alinéa de l'article L. 225-102, les mots : " ainsi que par les salariés d'une société coopérative ouvrière de production au sens de la loi n° 78-763 du 19 juillet 1978 portant statut de sociétés coopératives ouvrières de production " sont supprimés.
Article L912-4
Au 5° de l'article L. 225-115, les mots : versements effectués en application des 1 et 4 de l'article 238 bis du code général des impôts sont remplacés par les mots : déductions fiscales prévues par les dispositions du code des impôts applicables localement relatives au total des déductions du montant des bénéfices imposables des sociétés qui procèdent à des versements au profit d'oeuvres d'organismes d'intérêt général, ou de sociétés agréées ou à des donations d'oeuvre d'art à l'Etat.
Article L912-6
Au VI de l'article L. 225-270, les mots : " les dispositions de l'article 94 A du code général des impôts " sont remplacés par les mots : " les dispositions du code des impôts applicable localement relatives aux gains nets en capital réalisés à l'occasion de la cession à titre onéreux de valeurs mobilières et de droits sociaux ".
Article L912-7
Au cinquième alinéa (2°) de l'article L. 239-1, les mots : "à l'article 208 D du code général des impôts " sont remplacés par les mots : "au code général des impôts applicable localement".
Chapitre III : Dispositions d'adaptation du livre III.
Article L913-1
Le second alinéa de l'article L. 322-9 est ainsi rédigé :
" Ils se conforment aux dispositions prescrites par le code des impôts applicable localement relatives aux ventes publiques et par enchères. "
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Chapitre IV : Dispositions d'adaptation du livre IV.
Article L914-1
Au second alinéa de l'article L. 442-2, avant les mots :
" taxes sur le chiffre d'affaires ", est ajouté le mot :
" éventuelles ".
Au deuxième et au troisième alinéa de l'article L. 442-2, les dates : "1er janvier 2006" et "1er janvier 2007" sont respectivement remplacées par les dates : "1er janvier 2009" et "1er janvier 2010".
Article L914-2
L'article L. 443-1 est modifié ainsi qu'il suit :
I. - Au 3° , les mots : " à l'article 403 du code général des impôts " sont remplacés par les mots : " par les dispositions du code des impôts applicable localement ".
II. - Le 4° est ainsi rédigé :
" 4° A soixante-quinze jours après le jour de livraison pour les achats de boissons alcooliques passibles des droits de circulation prévus par le code des impôts applicable localement. "
Chapitre V : Dispositions d'adaptation du livre V.
Article L915-1
Le deuxième alinéa de l'article L. 511-62 est ainsi rédigé :
" La retraite comprend les sommes indiquées dans les articles L. 511-45 et L. 511-46, outre les droits de courtage et de timbre éventuellement prévus par les dispositions du code des impôts applicable localement. "
Article L915-2
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Le premier alinéa de l'article L. 524-19 est ainsi rédigé :
" Le montant des droits à percevoir par le greffier du tribunal de première instance statuant en matière commerciale est fixé par décret. "
Article L915-3
Au premier alinéa de l'article L. 525-2, après les mots " au droit fixe ", sont ajoutés les mots : " selon les modalités en vigueur localement ".
Article L915-4
Au II de l'article L. 525-9, les mots : " au privilège visé à l'article L. 243-4 du code la sécurité sociale " sont remplacés par les mots : " au privilège organisé en faveur de la caisse de prévoyance sociale de la collectivité territoriale ".
Article L915-5
L'article L. 525-18 est modifié ainsi qu'il suit :
I. - Au 1° , la référence au décret n° 53-968 du 30 septembre 1953 est remplacée par la référence au décret n° 55-639 du 20 mai 1955.
II. - Le 2° est ainsi rédigé :
" 2° Les navires de mer. "
Chapitre VI : Dispositions d'adaptation du livre VI.
Article L916-1
Le 4° du III de l'article L. 643-11 ne s'applique pas à Saint-Pierre-et-Miquelon.
Chapitre VII : Dispositions d'adaptation du livre VII.
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Article L917-4
A l'article L. 712-2, les mots : " au moyen d'une taxe additionnelle à la taxe professionnelle " sont remplacés par les mots : " comme il est dit dans les dispositions du code des impôts applicable dans la collectivité ".
Article L917-5
Pour l'application de l'article L. 712-7, les mots : ", notamment celles mentionnées au 2° de l'article L. 711-8, " sont supprimés.
Chapitre VIII : Dispositions d'adaptation du livre VIII.
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Partie législative
LIVRE IX : Dispositions relatives à l'outre-mer.
TITRE II : Dispositions applicables à Mayotte.
Article L920-1
Sous réserve des adaptations prévues dans les chapitres ci-après, les dispositions suivantes du présent code sont applicables à Mayotte :
1° Le livre Ier, à l'exception des articles L. 125-3, L. 126-1 ;
2° Le livre II, à l'exception des articles L. 225-245-1, L. 229-1 à L. 229-15, L. 238-6, L. 244-5 et L. 252-1 à L. 252-13 ;
3° Le livre III, à l'exception des articles L. 321-1 à L. 321-38 ;
4° Le livre IV, à l'exception des articles L. 441-1, L. 442-1 et L. 470-6 ;
5° Le livre V, à l'exception des articles L. 522-1 à L. 522-40, L. 524-12, L. 524-20 et L. 524-21 ;
6° Le livre VI, à l'exclusion des articles L. 622-19, L. 625-9 et L. 670-1 à L. 670-8 ;
7° Le titre Ier du livre VII, à l'exception de la section 2 du chapitre Ier, du second alinéa de l'article L. 711-5, des articles L. 712-2, L. 712-4 et L. 712-5, ainsi que des dispositions relatives aux délégués consulaires ; les articles L. 721-3 à L. 721-6 ;
8° Le livre VIII.
Article L920-2
Pour l'application du présent code dans la collectivité, les termes énumérés ci-après sont remplacés comme suit :
1° " Tribunal de grande instance " ou " tribunal d'instance " par " tribunal de première instance " ;
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2° " Tribunal de commerce " ou " justice consulaire " par " tribunal de première instance statuant en matière commerciale " ;
3° " Conseil des prud'hommes " par " tribunal du travail " ;
4° " Département " ou " arrondissement " par " collectivité territoriale " ;
5° " Bulletin officiel des annonces civiles et commerciales " par " Recueil des actes administratifs de la collectivité territoriale ".
Article L920-3
Les références faites, par des dispositions du présent code applicables à Mayotte, à d'autres articles du présent code ne concernent que les articles rendus applicables dans la collectivité avec les adaptations prévues dans les chapitres ci-dessous.
Article L920-4
En l'absence d'adaptation, les références faites, par des dispositions du présent code applicables à Mayotte, à des dispositions qui n'y sont pas applicables sont remplacées par les références aux dispositions ayant le même objet applicables localement.
Article L920-5
Les références faites, par des dispositions du présent code applicables à Mayotte, à des dispositions du code du travail n'y sont applicables que s'il existe une disposition applicable localement ayant le même objet.
Article L920-7
Les articles faisant référence à la Communauté européenne sont applicables dans le respect de la décision d'association prévue à l'article 136 du traité instituant la Communauté européenne. Les références à l'accord sur l'Espace économique européen ne sont pas applicables.
Chapitre Ier : Dispositions d'adaptation du livre Ier.
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Article L921-1
A l'article L. 122-1, les mots : "par le préfet du département dans lequel il envisage d'exercer pour la première fois son activité" sont remplacés par les mots : "par le préfet de Mayotte dans le cas où l'étranger doit y exercer pour la première fois son activité".
Article L921-2
Les dérogations prévues par les articles L. 123-25 à L. 123-27 sont applicables aux personnes physiques soumises à un régime simplifié d'imposition par la réglementation en vigueur à Mayotte.
Article L921-3
A l'article L. 133-6, les mots : " celles qui naissent des dispositions de l'article 1269 du code de procédure civile " sont remplacés par les mots : " les demandes en révision de compte et en liquidation des fruits présentées en vue d'un redressement en cas d'erreur, d'omission ou de présentation inexacte ".
Article L921-4
A l'article L. 133-7, les mots : " les droits, taxes, frais et amendes de douane liés à une opération de transport " sont supprimés.
Article L921-5
Pour l'application des articles L. 141-15, L. 143-7, L. 144-1 à L. 144-13 et L. 145-28, un magistrat du tribunal de première instance peut être délégué par le président.
Article L921-6
A l'article L. 141-13, les mots : " de la déclaration prescrite par les articles 638 et 653 du code général des impôts " sont remplacés par les mots : " de la déclaration prescrite dans les conditions prescrites par les dispositions du code des impôts applicable dans la collectivité ".
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Article L921-7
A l'article L. 144-5, les mots : " les articles L. 3211-2 et L. 3212-1 à L. 3212-12 du code de la santé publique " sont remplacés par les mots : " les articles du code de la santé publique applicable dans la collectivité relatifs à l'hospitalisation et à l'internement avec ou sans le consentement de l'intéressé ".
Article L921-8
L'article L. 145-2 est modifié ainsi qu'il suit :
I. - Au 4°, les mots : " à l'Etat, aux départements, aux communes, aux établissements publics " sont remplacés par les mots : " à l'Etat, aux collectivités territoriales et aux établissements publics ".
II. - Au 6°, les mots : " à la caisse de sécurité sociale de la maison des artistes et reconnus auteurs d'oeuvres graphiques et plastiques, tels que définis par l'article 71 de l'annexe III du code général des impôts " sont remplacés par les mots : " à la caisse locale d'assurance sociale et reconnus auteurs d'oeuvres graphiques et plastiques au sens du code des impôts applicable dans la collectivité ".
Article L921-9
Pour l'application de l'article L. 145-6, les mots : "l'évacuation des lieux compris dans un secteur ou périmètre prévu aux articles L. 313-4 et L. 313-4-2 du code de l'urbanisme" sont remplacés par les mots : "l'évacuation des lieux prévue à l'article L. 145-18".
Article L921-10
A l'article L. 145-13, les mots : " sous réserve des dispositions de la loi du 28 mai 1943 relative à l'application aux étrangers des lois en matière de baux à loyer et de baux à ferme " sont supprimés.
Article L921-11
Le deuxième alinéa de l'article L. 145-18 est ainsi rédigé :
" Il en est de même pour effectuer des opérations de restauration immobilière comportant des travaux de remise en état, de conservation, de modernisation ou de démolition ayant pour
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conséquence la transformation des conditions d'habitabilité d'un ensemble d'immeubles nécessitant l'évacuation des lieux. Ces opérations peuvent être décidées et exécutées dans le respect de la réglementation locale, soit par les autorités publiques localement compétentes, soit à l'initiative d'un ou de plusieurs propriétaires, groupés ou non en association syndicale. Dans ce dernier cas, ce ou ces propriétaires y sont spécialement autorisés dans des conditions fixées par le représentant de l'Etat, qui précisent notamment les engagements exigés des propriétaires quant à la nature et à l'importance des travaux. Les immeubles acquis par un organisme de rénovation ne peuvent, après restauration, être cédés de gré à gré qu'aux conditions d'un cahier des charges type approuvé par le représentant de l'Etat. "
Article L921-12
A l'article L. 145-26, après les mots : " à l'Etat, aux départements, aux communes ", sont ajoutés les mots : " à la collectivité territoriale ".
Article L921-13
Le premier alinéa de l'article L. 145-34 est ainsi rédigé :
" A moins d'une modification notable des éléments déterminant la valeur locative, le taux de variation du loyer applicable lors de la prise d'effet du bail à renouveler, si sa durée n'est pas supérieure à neuf ans, ne peut excéder la variation d'un indice local trimestriel mesurant le coût de la construction intervenue depuis la fixation initiale du loyer du bail expiré. Cet indice est calculé dans des conditions déterminées par arrêté du représentant de l'Etat. A défaut de clause contractuelle fixant le trimestre de référence de cet indice, il y a lieu de prendre en compte une variation de l'indice local trimestriel mesurant le coût de la construction fixé à cet effet par l'arrêté précité. "
Article L921-14
L'article L. 145-35 est modifié ainsi qu'il suit :
I. - Au premier alinéa, le mot : " départementale " est supprimé ;
II. - Le dernier alinéa est ainsi rédigé :
" La composition de la commission, le mode de désignation de ses membres et ses règles de fonctionnement sont fixés par arrêté du représentant de l'Etat. "
Chapitre II : Dispositions d'adaptation du livre II.
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Article L922-1
Aux articles L. 225-177, L. 225-179 et L. 233-11, les mots : "la date de publication de la loi n° 2001-420 du 15 mai 2001" sont remplacés par les mots : "la date de publication de l'ordonnance n° 2004-604 du 24 juin 2004 portant réforme du régime des valeurs mobilières émises par les sociétés commerciales et extension à l'outre-mer de dispositions ayant modifié la législation commerciale".
Article L922-2
Aux articles L. 223-18, L. 225-36 et L. 225-65, les mots : "dans le même département ou un département limitrophe" sont remplacés par les mots : "dans la collectivité".
Article L922-3
Le dernier alinéa de l'article L. 225-43 et celui de l'article L. 225-91 sont supprimés.
Article L922-4
Au 5° de l'article L. 225-115, les mots : "versements effectués en application des 1 et 4 de l'article 238 bis du code général des impôts" sont remplacés par les mots : "déductions fiscales prévues par les dispositions de droit fiscal applicables dans la collectivité et relatives au total des déductions du montant des bénéfices imposables des sociétés qui procèdent à des versements au profit d'oeuvres d'organismes d'intérêt général, ou de sociétés agréées ou à des donations d'oeuvre d'art à l'Etat".
Article L922-5
Aux articles L. 225-105, L. 823-6 et L. 225-231, les mots :
" le comité d'entreprise " sont remplacés par les mots :
" les délégués du personnel ".
Article L922-6
Aux articles L. 225-231, L. 232-3, L. 232-4, L. 234-1 et L. 234-2, les mots : " au comité d'entreprise " sont remplacés par les mots : " aux délégués du personnel ".
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Article L922-7
Au VI de l'article L. 225-270, les mots : " les dispositions de l'article 94 A du code général des impôts " sont remplacés par les mots : " les dispositions du code des impôts applicable dans la collectivité relatives aux gains nets en capital réalisés à l'occasion de la cession à titre onéreux de valeurs mobilières et de droits sociaux ".
Article L922-8
Le dernier alinéa de l'article L. 228-36 est supprimé.
Article L922-9
A l'article L. 233-24, les mots : " ou du VII de l'article 97 " sont supprimés.
Article L922-10
Le deuxième alinéa de l'article L. 251-7 est supprimé.
Chapitre III : Dispositions d'adaptation du livre III.
Article L923-1
A l'article L. 322-1, les mots : " aux articles 53 de la loi n° 91-650 du 9 juillet 1991 relative à la réforme des procédures d'exécution et 945 du code de procédure civile " sont remplacés par les mots : " aux dispositions de procédure civile applicables dans la collectivité relatives à la vente de meubles dépendant d'une succession ".
Article L923-2
Le second alinéa de l'article L. 322-9 est ainsi rédigé :
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" Ils se conforment aux dispositions prescrites par le code des impôts applicable dans la collectivité relatives aux ventes publiques et par enchères. "
Chapitre IV : Dispositions d'adaptation du livre IV.
Article L924-1
Au premier alinéa de l'article L. 430-2, le mot : "trois" est remplacé par le mot : "deux". Les quatrième et cinquième alinéas de cet article sont supprimés.
Article L924-2
A l'article L. 430-3, la dernière phrase du premier alinéa est supprimée. Au troisième alinéa du même article, les mots : ", ou le renvoi total ou partiel d'une opération de dimension communautaire," sont supprimés.
Article L924-3
Le dernier alinéa de l'article L. 441-2 est remplacé par quatre alinéas ainsi rédigés :
" La cessation de la publicité, réalisée dans des conditions non conformes aux dispositions de l'alinéa 1, peut être ordonnée par le juge d'instruction ou par le tribunal saisi des poursuites, soit sur réquisition du ministère public, soit d'office. La mesure ainsi prise est exécutoire nonobstant toutes voies de recours.
Mainlevée peut en être donnée par la juridiction qui l'a ordonnée ou qui est saisie du dossier. La mesure cesse d'avoir effet en cas de décision de non-lieu ou de relaxe.
Les décisions statuant sur les demandes de mainlevée peuvent faire l'objet d'un recours devant le tribunal supérieur d'appel selon qu'elles ont été prononcées par un juge d'instruction ou par le tribunal saisi des poursuites.
Le tribunal supérieur d'appel statue dans un délai de dix jours à compter de la réception des pièces. "
Article L924-4
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Au second alinéa de l'article L. 442-2, avant les mots :
" taxes sur le chiffre d'affaires ", est ajouté le mot :
" éventuelles " ;
Article L924-5
Le dernier alinéa de l'article L. 442-3 est remplacé par quatre alinéas ainsi rédigés :
" La cessation de l'annonce publicitaire peut être ordonnée par le juge d'instruction ou par le tribunal saisi des poursuites, soit sur réquisition du ministère public, soit d'office. La mesure ainsi prise est exécutoire nonobstant toutes voies de recours.
Mainlevée peut en être donnée par la juridiction qui l'a ordonnée ou qui est saisie du dossier. La mesure cesse d'avoir effet en cas de décision de non-lieu ou de relaxe.
Les décisions statuant sur les demandes de mainlevée peuvent faire l'objet d'un recours devant le tribunal supérieur d'appel.
Le tribunal supérieur d'appel statue dans un délai de dix jours à compter de la réception des pièces. "
Article L924-6
L'article L. 443-1 est modifié ainsi qu'il suit :
I. - Au 1°, les mots : " visés aux articles L. 326-1 à L. 326-3 du code rural " sont remplacés par les mots : " prévus par les dispositions du code rural applicable dans la collectivité " ;
II. - Au 3°, les mots : " à l'article 403 du code général des impôts " sont remplacés par les mots : " par les dispositions du code des impôts applicable dans la collectivité " ;
III. - Le 4° est ainsi rédigé :
" 4° A soixante-quinze jours après le jour de livraison pour les achats de boissons alcooliques passibles des droits de circulation prévus par le code des impôts applicable dans la collectivité. "
Chapitre V : Dispositions d'adaptation du livre V.
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Article L925-1
Le deuxième alinéa de l'article L. 511-62 est ainsi rédigé :
" La retraite comprend les sommes indiquées dans les articles L. 511-45 et L. 511-46, outre les droits de courtage et de timbre éventuellement prévus par les dispositions applicables dans la collectivité. "
Article L925-2
Aux articles L. 523-8 et L. 524-6, les mots : " articles 1426 à 1429 du code de procédure civile " sont remplacés par les mots : " dispositions de procédure civile applicables localement relatives aux offres de payement et à la consignation ".
Article L925-3
Le premier alinéa de l'article L. 524-19 est ainsi rédigé :
" Le montant des droits à percevoir par le greffier du tribunal de première instance statuant en matière commerciale est fixé par décret. "
Article L925-4
Au premier alinéa de l'article L. 525-2, après les mots : " au droit fixe " sont ajoutés les mots : " selon les modalités en vigueur dans la collectivité ".
Article L925-5
Au II de l'article L. 525-9, les mots : " au privilège visé à l'article L. 243-4 du code de la sécurité sociale " sont remplacés par les mots : " au privilège organisé en faveur de la caisse de prévoyance sociale de la collectivité territoriale ".
Article L925-6
L'article L. 525-18 est modifié ainsi qu'il suit :
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I. - Au 1°, la référence au décret n° 53-968 du 30 septembre 1953 est remplacée par la référence au décret n° 55-639 du 20 mai 1955.
II. - Le 2° est ainsi rédigé :
" 2° Les navires de mer ainsi que les bateaux de navigation fluviale. "
Chapitre VI : Dispositions d'adaptation du livre VI.
Article L926-1
A l'article L. 625-2 les mots : " mentionnée à l'article L. 432-7 du code du travail " sont remplacés par les mots : " à l'égard des informations présentant un caractère confidentiel et données comme telles ".
Article L926-2
Pour l'application de l'article L. 622-24, les organismes visés à l'article L. 351-21 du code du travail sont les organismes locaux ayant en charge le service de l'allocation d'assurance chômage et le recouvrement des contributions.
Article L926-3
Pour l'application des articles L. 622-24, L. 622-26, L. 625-4, L. 626-5, L. 626-20, L. 631-18, L. 641-14 et L. 662-4, les institutions mentionnées à l'article L. 143-11-4 du code du travail sont les institutions locales chargées de la mise en oeuvre du régime d'assurance contre le risque de non-paiement des salaires, en cas de procédure de redressement ou de liquidation judiciaires.
Article L926-4
Pour l'application de l'article L. 611-7, L. 626-6 et L. 643-3, les institutions régies par le livre IX du code de la sécurité sociale sont les institutions locales de retraite complémentaire ou supplémentaire ou de prévoyance, prévues par les dispositions applicables dans la collectivité et relatives aux régimes de sécurité et de protection sociales.
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Article L926-6
A l'article L. 642-1, l'obligation faite au tribunal de tenir compte des dispositions contenues aux 1°, 2°, 3° et 4° de l'article L. 331-3 du code rural s'entend des prescriptions suivantes :
" Observer l'ordre des priorités établi entre l'installation des jeunes agriculteurs et l'agrandissement des exploitations, en tenant compte de l'intérêt économique et social du maintien de l'autonomie de l'exploitation faisant l'objet de la demande ;
Tenir compte, en cas d'agrandissement ou de réunion d'exploitations, des possibilités d'installation sur une exploitation viable, de la situation des terres concernées par rapport au siège de l'exploitation du ou des demandeurs, de la superficie des biens faisant l'objet de la demande et des superficies déjà mises en valeur par le ou les demandeurs, ainsi que par le preneur en place ;
Prendre en considération la situation personnelle du ou des demandeurs : âge, situation familiale et professionnelle et, le cas échéant, celle du preneur en place, ainsi que le nombre et la nature des emplois salariés en cause ;
Tenir compte de la structure parcellaire des exploitations concernées, soit par rapport au siège de l'exploitation, soit pour éviter que des mutations en jouissance ne remettent en cause des aménagements obtenus à l'aide de fonds publics. "
Article L926-7
Le 4° du III de l'article L. 643-11 ne s'applique pas.
Chapitre VII : Dispositions d'adaptation du livre VII.
Article L927-1
Pour l'application à Mayotte :
1° De l'article L. 711-2, le dernier alinéa (4°) est ainsi rédigé :
" 4° Elles sont associées à l'élaboration du plan d'aménagement et de développement durable et des plans locaux d'urbanisme. ";
2° Du premier alinéa de l'article L. 711-5, les mots : "dans les conditions prévues aux articles L. 443-1 et L. 753-1 du code de l'éducation" sont supprimés ;
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3° De l'article L. 712-7, les mots : " , notamment celles mentionnées au 2° de l'article L. 711-8," sont supprimés.
Chapitre VIII : Dispositions d'adaptation du livre VIII.
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Partie législative
LIVRE IX : Dispositions relatives à l'outre-mer.
TITRE III : Dispositions applicables en Nouvelle-Calédonie.
Article L930-1
Sous réserve des adaptations prévues dans les chapitres ci-après, les dispositions suivantes du présent code sont applicables en Nouvelle-Calédonie :
1° Le livre Ier, à l'exception des articles L. 123-1-1, L. 123-29 à L. 123-31, L. 124-1 à L. 126-1, L. 131-1 à L. 131-6, L. 131-9, L. 134-1 à L. 135-3, L. 145-34 à L. 145-36, L. 145-38 et L. 145-39 ;
2° Le livre II, à l'exception des articles L. 225-245-1, L. 229-1 à L. 229-15, L. 238-6, L. 244-5 et L. 252-1 à L. 252-13 ;
3° Le livre III, à l'exception des articles L. 310-4, L. 321-1 à L. 321-38, L. 322-7 et L. 322-10 ;
4° Le livre IV, à l'exception des articles L. 410-1 à L. 450-1, L. 450-5 à L. 450-6, L. 461-1 à L. 464-9, L. 470-2 à L. 470-4 et des articles L. 470-6 à L. 470-8 ;
5° Le livre V, à l'exception des articles L. 522-1 à L. 522-40, L. 524-12, L. 524-20 et L. 524-21 ;
6° Le livre VI, à l'exception des articles L. 622-19, L. 625-9 et L. 670-1 à L. 670-8 ;
7° Le titre II du livre VII, à l'exception des articles L. 722-3, L. 722-11 à L. 722-13, de l'article L. 723-6, de l'alinéa 2 de l'article L. 723-7, de l'alinéa 2 de l'article L. 723-10 et de l'article L. 723-11 ;
8° Le titre II du livre VIII.
Article L930-2
Pour l'application du présent code dans le territoire, les termes énumérés ci-après sont remplacés ainsi qu'il suit :
1° " Tribunal de grande instance " ou " tribunal d'instance " par " tribunal de première instance " ;
2° " Tribunal de commerce " ou " justice consulaire " par " tribunal mixte de commerce " ;
3° " Conseil de prud'hommes " par " tribunal du travail " ;
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4° " Bulletin officiel des annonces civiles et commerciales " par " Journal officiel de la Nouvelle-Calédonie " ;
5° " Département " ou " arrondissement " par " Nouvelle-Calédonie " ou par " province " ;
6° " Préfet " ou " sous-préfet " par " représentant de l'Etat en Nouvelle-Calédonie ".
Article L930-3
Les références faites, par des dispositions du présent code applicables en Nouvelle-Calédonie, à d'autres articles du présent code, ne concernent que les articles rendus applicables en Nouvelle-Calédonie avec les adaptations prévues dans les chapitres ci-dessous.
Article L930-4
En l'absence d'adaptation, les références faites par des dispositions du présent code applicables en Nouvelle-Calédonie, à des dispositions qui n'y sont pas applicables, sont remplacées par les références aux dispositions ayant le même objet applicables localement.
Article L930-5
Les références faites par des dispositions du présent code applicables en Nouvelle-Calédonie à des dispositions du code du travail, n'y sont applicables que s'il existe une disposition applicable localement ayant le même objet.
Article L930-6
Les références à l'immatriculation au répertoire des métiers sont remplacées par les références à l'immatriculation faite conformément à la réglementation applicable en Nouvelle-Calédonie.
Article L930-7
Les articles faisant référence à la Communauté européenne sont applicables dans le respect de la décision d'association prévue à l'article 136 du traité instituant la Communauté européenne. Les références à l'accord sur l'Espace économique européen ne sont pas applicables.
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Chapitre Ier : Dispositions d'adaptation du livre Ier.
Article L931-1
A l'article L. 122-1, les mots : " le préfet du département où l'étranger doit exercer son activité " sont remplacés par les mots : " l'autorité de Nouvelle-Calédonie compétente ".
Article L931-1-1
A l'article L. 123-11-3, les références au code de la consommation et au code du travail sont remplacées par des références aux dispositions applicables localement ayant le même objet.
Article L931-1-2
Pour son application en Nouvelle-Calédonie, l'article L. 123-11-6 est rédigé comme suit : Art.L. 123-11-6.-Les agents des douanes sont qualifiés pour procéder à la recherche et à la constatation des infractions aux dispositions des articles de la présente sous-section et des règlements pris pour leur application.A cet effet, ils agissent, conformément aux règles de recherche et de constatation des infractions déterminées par le code des douanes. Les infractions sont constatées par des procès-verbaux faisant foi jusqu'à preuve du contraire et transmis directement au parquet.
Article L931-2
Les dérogations prévues par les articles L. 123-25 à L. 123-27 sont applicables aux personnes physiques soumises à un régime simplifié d'imposition par la réglementation en vigueur en Nouvelle-Calédonie.
Article L931-3
A l'article L. 131-11, les mots : " S'il est inscrit sur la liste des courtiers, dressée conformément aux dispositions réglementaires, il en est rayé et ne peut plus y être inscrit de nouveau " sont supprimés.
Article L931-4
Pour l'application de l'article L. 133-6 :
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1° Les mots : " celles qui naissent des dispositions de l'article 1269 du code de procédure civile " sont remplacés par les mots : " les demandes en révision de compte et en liquidation des fruits présentées en vue d'un redressement en cas d'erreur, d'omission ou de présentation inexacte " ;
2° Les dispositions du dernier alinéa sont applicables dans le cas de transport fait pour le compte de la Nouvelle-Calédonie.
Article L931-5
A l'article L. 133-7, les mots : " les droits, taxes, frais et amendes de douane liés à une opération de transport " sont supprimés.
Article L931-6
Pour l'application des articles L. 141-15, L. 143-7, L. 144-1 à L. 144-13 et L. 145-28, un magistrat du tribunal de première instance peut être délégué par le président.
Article L931-7
A l'article L. 141-13, les mots : " par les articles 638 et 653 du code général des impôts " sont remplacés par les mots :
" par les dispositions du code des impôts applicable en Nouvelle-Calédonie relatives aux déclarations de mutation verbales ".
Article L931-8
A l'article L. 144-5, les mots : " les articles L. 3211-2 et L. 3212-1 à L. 3212-12 du code de la santé publique " sont remplacés par les mots : " les articles du code de la santé publique applicable en Nouvelle-Calédonie relatifs à l'hospitalisation ou à l'internement avec ou sans le consentement de l'intéressé ".
Article L931-9
L'article L. 144-11 est ainsi rédigé :
" Art. L. 144-11. - Si, conformément à la réglementation locale, le contrat de location-gérance est assorti d'une clause d'échelle mobile, la révision du loyer peut, nonobstant toute convention
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contraire, être demandée selon les conditions fixées par une délibération de l'autorité locale compétente lorsque, par le jeu de cette clause, ce loyer se trouve augmenté ou diminué de plus du quart par rapport au prix précédemment fixé, contractuellement ou judiciairement. "
Article L931-10
L'article L. 144-12 est ainsi rédigé :
" Art. L. 144-12. - A défaut d'accord amiable entre les parties sur la révision du loyer, l'instance est introduite et jugée conformément aux dispositions prévues en matière de révision du prix des baux à loyer d'immeubles ou de locaux à usage commercial ou industriel.
Le juge doit, en tenant compte de tous les éléments d'appréciation, adapter le jeu de l'échelle mobile à la valeur locative équitable au jour de la notification. Le nouveau prix est applicable à partir de cette même date, à moins que les parties ne se soient mises d'accord avant ou pendant l'instance sur une date plus ancienne ou plus récente. "
Article L931-11
Pour l'application de l'article L. 145-2, la Nouvelle-Calédonie est considérée comme une collectivité territoriale et au 6°, les mots : " à la caisse de sécurité sociale de la maison des artistes et reconnus auteurs d'oeuvres graphiques et plastiques, tels que définis par l'article 71 de l'annexe III du code général des impôts " sont remplacés par les mots : " à la caisse locale d'assurance sociale et reconnus auteurs d'oeuvres graphiques et plastiques au sens du code des impôts applicable en Nouvelle-Calédonie ".
Article L931-12
Pour l'application de l'article L. 145-6, les mots : "l'évacuation des lieux compris dans un secteur ou périmètre prévu aux articles L. 313-4 et L. 313-4-2 du code de l'urbanisme" sont remplacés par les mots : "l'évacuation des lieux prévue à l'article L. 145-18".
Article L931-13
A l'article L. 145-13, les mots : " sous réserve des dispositions de la loi du 28 mai 1943 relative à l'application aux étrangers des lois en matière de baux à loyer et de baux à ferme " sont supprimés.
Article L931-14
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Le deuxième alinéa de l'article L. 145-18 est ainsi rédigé :
" Il en est de même pour effectuer des opérations de restauration immobilière comportant des travaux de remise en état, de conservation, de modernisation ou de démolition ayant pour conséquence la transformation des conditions d'habitabilité d'un ensemble d'immeubles nécessitant l'évacuation des lieux. Ces opérations peuvent être décidées et exécutées dans le respect de la réglementation locale, soit par les autorités publiques localement compétentes, soit à l'initiative d'un ou de plusieurs propriétaires, groupés ou non en association syndicale. Dans ce dernier cas, ce ou ces propriétaires y sont spécialement autorisés dans des conditions fixées par les autorités locales compétentes, qui précisent notamment les engagements exigés des propriétaires quant à la nature et à l'importance des travaux. Les immeubles acquis par un organisme de rénovation ne peuvent, après restauration, être cédés de gré à gré qu'aux conditions d'un cahier des charges type approuvé par lesdites autorités. "
Article L931-15
Pour l'application de l'article L. 145-26, la Nouvelle-Calédonie est considérée comme une collectivité territoriale.
Article L931-16
L'article L. 145-37 est ainsi rédigé :
" Art. L. 145-37. - Les loyers des baux d'immeubles ou de locaux régis par le présent chapitre, renouvelés ou non, peuvent être révisés à la demande de l'une ou de l'autre des parties, dans les conditions prévues par les délibérations de l'autorité de Nouvelle-Calédonie compétente. "
Article L931-17
L'article L. 145-43 est ainsi rédigé :
" Art. L. 145-43. - Sont dispensés de l'obligation d'exploiter pendant la durée de leur stage les commerçants et artisans, locataires du local dans lequel est situé leur fonds, qui sont admis à suivre un stage de conversion ou un stage de promotion conformément aux dispositions du code du travail applicable en Nouvelle-Calédonie. "
Article L931-18
Le troisième alinéa de l'article L. 145-47 est supprimé.
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Article L931-19
A l'article L. 145-56, les mots : " et de procédure " sont supprimés.
Chapitre II : Dispositions d'adaptation du livre II.
Article L932-6
Aux articles L. 225-177, L. 225-179 et L. 233-11, les mots : "la date de publication de la loi n° 2001-420 du 15 mai 2001 relative aux nouvelles régulations économiques" sont remplacés par les mots : "la date de publication de l'ordonnance n° 2004-604 du 24 juin 2004 portant réforme du régime des valeurs mobilières émises par les sociétés commerciales et extension à l'outre-mer de dispositions ayant modifié la législation commerciale".
Article L932-7
Aux articles L. 223-18, L. 225-36 et L. 225-65, les mots : "dans le même département ou un département limitrophe" sont remplacés par les mots : "en Nouvelle-Calédonie".
Article L932-8
Le dernier alinéa de l'article L. 225-43 et celui de l'article L. 225-91 sont supprimés.
Article L932-10
Le 5° de l'article L. 225-115 est ainsi rédigé :
" 5° Du montant global, certifié par les commissaires aux comptes, des déductions du montant des bénéfices imposables de sociétés qui procèdent à des versements à des oeuvres d'organismes d'intérêt général ou de sociétés agréées ou à des donations d'oeuvres d'art à l'Etat ou à la Nouvelle-Calédonie, telles que prévues par les dispositions de droit fiscal applicables en Nouvelle-Calédonie, ainsi que la liste des actions nominatives de parrainage, de mécénat. "
Article L932-11
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Aux articles L. 225-105, L. 823-6 et L. 225-231, après les mots : " le comité d'entreprise " sont ajoutés les mots :
" ou à défaut les délégués du personnel ".
Article L932-12
Aux articles L. 225-231, L. 232-3, L. 232-4, L. 234-1 et L. 234-2, aux mots : " au comité d'entreprise " sont ajoutés les mots :
" ou à défaut aux délégués du personnel ".
Article L932-14
Au VI de l'article L. 225-270, les mots : " les dispositions de l'article 94 A du code général des impôts " sont remplacés par les mots : " les dispositions du code des impôts applicable en Nouvelle-Calédonie relatives aux gains nets en capital réalisés à l'occasion de la cession à titre onéreux de valeurs mobilières et de droits sociaux ".
Article L932-15
Le dernier alinéa de l'article L. 228-36 est supprimé.
Article L932-16
A l'article L. 233-24, les mots " ou du VII de l'article 97 " sont supprimés.
Article L932-17
Le deuxième alinéa de l'article L. 251-7 est supprimé.
Chapitre III : Dispositions d'adaptation du livre III.
Article L933-1
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Les deuxième et troisième alinéas de l'article L. 310-1 sont supprimés.
Article L933-2
Le deuxième alinéa du I et le II de l'article L. 310-2 sont supprimés.
Article L933-3
Le deuxième alinéa du I de l'article L. 310-3 est supprimé.
Article L933-4
Les 1°, 2° et 3° de l'article L. 310-5 sont supprimés.
Article L933-5
A l'article L. 322-1, les mots : " aux articles 53 de la loi n° 91-650 du 9 juillet 1991 relative à la réforme des procédures d'exécution et 945 du code de procédure civile " sont remplacés par les mots : " aux dispositions de procédure civile applicables en Nouvelle-Calédonie et relatives à la vente de meubles dépendant d'une succession ".
Article L933-6
L'article L. 322-11 est ainsi rédigé :
" Art. L. 322-11. - Les contestations relatives aux ventes réalisées en application des délibérations en vigueur localement relatives à la vente volontaire, aux enchères, en gros, des marchandises par les courtiers assermentés sont portées devant le tribunal mixte de commerce. "
Article L933-7
L'article L. 322-15 est ainsi rédigé :
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" Art. L. 322-15. - Il appartient toujours au tribunal ou au juge qui autorise ou ordonne la vente en vertu de l'article précédent, de désigner éventuellement, pour y procéder, une autre classe d'officiers publics que les courtiers assermentés. "
Article L933-8
L'article L. 322-16 est ainsi rédigé :
" Art. L. 322-16. - Les dispositions de l'article L. 322-11 sont applicables aux ventes visées aux articles L. 322-14 et L. 322-15. "
Chapitre IV : Dispositions d'adaptation du livre IV.
Article L934-1
Pour l'application de l'article L. 450-4 : 1° Au premier alinéa, les mots : " la Commission européenne, le ministre chargé de l'économie ou le rapporteur général de l'Autorité de la concurrence sur proposition du rapporteur " sont remplacés par les mots : " l'autorité compétente de la Nouvelle-Calédonie " ; 2° Au deuxième alinéa, les mots : " du livre IV du présent code " sont remplacés par les mots : " applicables en Nouvelle-Calédonie en matière de liberté des prix et de concurrence " ; 3° Au septième alinéa, les mots : " de celle de l'administration de la direction générale de la concurrence, de la consommation et de la répression des fraudes ou de celle de l'Autorité de la concurrence " sont remplacés par les mots : " ou de celle de l'administration compétente de la Nouvelle-Calédonie. " ; 4° Au huitième alinéa, les mots : " et, le cas échéant, les agents et autres personnes mandatés par la Commission européenne " sont supprimés ; 5° Au onzième alinéa, les mots : " de l'Autorité de la concurrence " sont remplacés par les mots : " de l'administration compétente de la Nouvelle-Calédonie " ; 6° Au douzième alinéa, les mots : " et au plus tard à compter de la notification de griefs prévue à l'article L. 463-2 " sont supprimés.
Article L934-2
Pour l'application de l'article L. 450-8, les mots : " mentionnés à l'article L. 450-1 " sont remplacés par les mots : " assermentés ".
Article L934-3
Pour son application en Nouvelle-Calédonie, l'article 470-4-1 est ainsi rédigé :
Art. 470-4-1. - L'acte par lequel le procureur de la République donne son accord à la proposition de transaction émise par l'autorité administrative chargée des prix et de la concurrence est interruptif de la prescription de l'action publique.
L'action publique est éteinte lorsque l'auteur de l'infraction a exécuté dans le délai imparti les
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obligations résultant pour lui de l'acceptation de la transaction.
Article L934-4
Pour l'application de l'article L. 470-5, les mots : " le ministre chargé de l'économie ou son représentant " sont remplacés par les mots : " l'autorité compétente de la Nouvelle-Calédonie ".
Article L934-5
Pour l'application des articles L. 450-3, L. 450-4, L. 450-7, L. 450-8, L. 470-4-2 et L. 470-4-3 en Nouvelle-Calédonie, les mots : " les agents mentionnés à l'article L. 450-1 " sont remplacés par les mots : " les agents assermentés de la Nouvelle-Calédonie mentionnés à l'article 86 de la loi organique n° 99-209 du 19 mars 1999 relative à la Nouvelle-Calédonie intervenant dans les matières énumérées aux 19° et 20° de l'article 22 de la même loi.
Chapitre V : Dispositions d'adaptation du livre V.
Article L935-1
A l'article L. 511-55, le mot : " destitution " est supprimé.
Article L935-2
L'article L. 511-60 est ainsi rédigé :
" Art. L. 511-60. - Un décret en Conseil d'Etat détermine les modalités d'application des dispositions de la présente sous-section, hormis le montant des rémunérations dues aux notaires ou huissiers ayant dressé les protêts pour les différentes formalités dont ils sont chargés. "
Article L935-3
A l'article L. 511-61, les mots : " ou des collectivités territoriales " sont remplacés par les mots : " des communes, des provinces ou de la Nouvelle-Calédonie ".
Article L935-4
Le deuxième alinéa de l'article L. 511-62 est ainsi rédigé :
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" La retraite comprend les sommes indiquées dans les articles L. 511-45 et L. 511-46, outre les droits de courtage et de timbre éventuellement prévus par les dispositions du code des impôts applicable en Nouvelle-Calédonie. "
Article L935-5
Aux articles L. 523-8 et L. 524-6, les mots : " articles 1426 à 1429 du code de procédure civile " sont remplacés par les mots : " dispositions de procédure civile applicables localement relatives aux offres de payement et à la consignation ".
Article L935-6
Le premier alinéa de l'article L. 524-19 est ainsi rédigé :
" Le montant des droits à percevoir par le greffier du tribunal mixte de commerce est fixé par décret. "
Article L935-7
Au premier alinéa de l'article L. 525-2, après les mots : " au droit fixe " sont ajoutés les mots : " selon les modalités en vigueur en Nouvelle-Calédonie ".
Article L935-8
Au II de l'article L. 525-9, les mots : " au privilège visé à l'article L. 243-4 du code de la sécurité sociale " sont remplacés par les mots : " au privilège organisé en faveur de la caisse de prévoyance sociale du territoire ".
Article L935-9
L'article L. 525-18 est modifié ainsi qu'il suit :
I.-Au 1°, la référence au décret n° 53-968 du 30 septembre 1953 est remplacée par la référence au décret n° 55-639 du 20 mai 1955.
II.-Le 2° est ainsi rédigé :
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" 2° Les navires de mer ainsi que les bateaux de navigation fluviale. "
Chapitre VI : Dispositions d'adaptation du livre VI.
Article L936-1
Les mesures d'application prévues aux articles L. 621-4, L. 625-1, L. 626-3, L. 626-6, L. 626-14 et L. 626-16 sont fixées par l'autorité compétente de Nouvelle-Calédonie.
Article L936-2
Au premier alinéa de l'article L. 611-1, l'arrêté du représentant de l'Etat dans la région est remplacé par une décision du gouvernement de la Nouvelle-Calédonie.
Article L936-3
Pour l'application de l'article L. 612-1, les commissaires aux comptes et leurs suppléants sont choisis et exercent leurs fonctions selon la réglementation en vigueur localement.
Article L936-4
Le troisième alinéa de l'article L. 612-1 est supprimé.
Article L936-6
A l'article L. 625-2, les mots : " mentionnée à l'article L. 432-7 du code du travail " sont remplacés par les mots : " à l'égard des informations présentant un caractère confidentiel et données comme telles ".
Article L936-7
Pour l'application de l'article L. 622-24, les organismes visés à l'article L. 351-21 du code du travail
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sont les organismes de Nouvelle-Calédonie ayant en charge le service de l'allocation d'assurance chômage et le recouvrement des contributions.
Article L936-8
Pour l'application des articles L. 622-24, L. 622-26, L. 625-4, L. 626-5, L. 626-20, L. 631-18, L. 641-14 et L. 662-4, les institutions mentionnées à l'article L. 143-11-4 du code du travail sont les institutions de Nouvelle-Calédonie chargées de la mise en oeuvre du régime d'assurance contre le risque de non-paiement des salaires, en cas de procédure de redressement ou de liquidation judiciaires.
Article L936-9
Pour l'application de l'article L. 611-7, L. 626-6 et L. 643-3, les institutions régies par le livre IX du code de la sécurité sociale sont les institutions de retraite complémentaire ou supplémentaire ou de prévoyance, prévues par les dispositions applicables en Nouvelle-Calédonie et relatives aux régimes de sécurité et de protection sociales.
Article L936-11
A l'article L. 642-1, l'obligation faite au tribunal de tenir compte des dispositions contenues aux 1°, 2°, 3° et 4° de l'article L. 331-3 du code rural s'entend des prescriptions suivantes :
" Observer l'ordre des priorités établi entre l'installation des jeunes agriculteurs et l'agrandissement des exploitations, en tenant compte de l'intérêt économique et social du maintien de l'autonomie de l'exploitation faisant l'objet de la demande ;
Tenir compte, en cas d'agrandissement ou de réunion d'exploitations, des possibilités d'installation sur une exploitation viable, de la situation des terres concernées par rapport au siège de l'exploitation du ou des demandeurs, de la superficie des biens faisant l'objet de la demande et des superficies déjà mises en valeur par le ou les demandeurs, ainsi que par le preneur en place ;
Prendre en considération la situation personnelle du ou des demandeurs : âge, situation familiale et professionnelle et, le cas échéant, celle du preneur en place, ainsi que le nombre et la nature des emplois salariés en cause ;
Tenir compte de la structure parcellaire des exploitations concernées, soit par rapport au siège de l'exploitation, soit pour éviter que des mutations en jouissance ne remettent en cause des aménagements obtenus à l'aide de fonds publics. "
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Article L936-12
Le 4° du III de l'article L. 643-11 ne s'applique pas.
Chapitre VII : Dispositions d'adaptation du livre VII.
Article L937-1
Le premier alinéa de l'article L. 721-1 est ainsi rédigé :
"Le tribunal mixte de commerce est composé du président du tribunal de première instance, président, de juges élus, sous réserve des dispositions de l'article L. 937-13, et d'un greffier.
Ce tribunal exerce les compétences dévolues en métropole au tribunal de commerce."
Article L937-2
L'article L. 722-1 est ainsi rédigé :
"Art. L. 722-1. - Les jugements des tribunaux mixtes de commerce sont rendus, sauf dispositions qui prévoient un juge unique, par une formation comprenant, outre le président, trois juges élus ou désignés dans les conditions prévues à l'article L. 937-13. En cas de partage égal des voix, celle du président est prépondérante."
Article L937-3
Le premier alinéa de l'article L. 722-9 est ainsi rédigé :
"Les juges des tribunaux mixtes de commerce sont élus pour quatre ans. Ils sont rééligibles."
Article L937-4
L'article L. 723-1 est ainsi rédigé :
"Art. L. 723-1. - I. - Les juges des tribunaux mixtes de commerce sont élus dans le ressort de
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chacune de ces juridictions par un collège composé :
1° D'électeurs à titre personnel :
a) Les commerçants immatriculés en Nouvelle-Calédonie au registre du commerce et des sociétés, sous réserve, pour les associés en nom collectif et les associés commandités, des dispositions du IV du présent article ;
b) Les chefs d'entreprise immatriculés en Nouvelle-Calédonie conformément à la réglementation applicable à la collectivité et au registre du commerce et des sociétés ;
c) Les conjoints des personnes énumérées au a ou au b ci-dessus ayant déclaré au registre du commerce et des sociétés qu'ils collaborent à l'activité de leur époux sans autre activité professionnelle ;
d) Les capitaines au long cours ou capitaines de la marine marchande exerçant le commandement d'un navire immatriculé en France dont le port d'attache est situé dans la circonscription, les pilotes maritimes exerçant leurs fonctions dans un port situé dans la circonscription, les pilotes de l'aéronautique civile domiciliés dans la circonscription et exerçant le commandement d'un aéronef immatriculé en France ;
e) Les membres en exercice des tribunaux mixtes de commerce, ainsi que les anciens membres de ces tribunaux ayant demandé à être inscrits sur la liste électorale ;
2° D'électeurs inscrits en qualité de représentant :
a) Les sociétés à caractère commercial au sens de l'article L. 210-1 et les établissements publics à caractère industriel et commercial dont le siège social est situé dans la circonscription ;
b) Au titre d'un établissement faisant l'objet dans la circonscription d'une inscription complémentaire ou d'une immatriculation secondaire, à moins qu'il en soit dispensé par les lois et règlements en vigueur, les personnes physiques mentionnées aux a et b du 1° et les personnes morales mentionnées au a du présent 2°, quelle que soit la circonscription où ces personnes exercent leur propre droit de vote ;
c) Les sociétés à caractère commercial dont le siège est situé hors du territoire national et qui disposent dans la circonscription d'un établissement immatriculé au registre du commerce et des sociétés ;
3° Les cadres qui, employés dans la circonscription par les électeurs mentionnés aux 1° ou 2°, exercent des fonctions impliquant des responsabilités de direction commerciale, technique ou administrative de l'entreprise ou de l'établissement.
II. - Au titre de leur siège social et de l'ensemble de leurs établissements situés dans la collectivité, les personnes physiques ou morales mentionnées aux 1° et 2° du I disposent :
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1° D'un représentant supplémentaire, lorsqu'elles emploient dans la collectivité de dix à quarante-neuf salariés ;
2° De deux représentants supplémentaires, lorsqu'elles emploient dans la collectivité de cinquante à cent quatre-vingt-dix-neuf salariés ;
3° De trois représentants supplémentaires, lorsqu'elles emploient dans la collectivité de deux cents à quatre cent quatre-vingt-dix-neuf salariés ;
4° De quatre représentants supplémentaires, lorsqu'elles emploient dans la collectivité de cinq cents à mille neuf cent quatre-vingt-dix-neuf salariés ;
5° De cinq représentants supplémentaires, lorsqu'elles emploient dans la collectivité deux mille salariés ou plus.
III. - Toutefois, les personnes physiques énumérées aux a et b du 1° du I dont le conjoint bénéficie des dispositions du c du 1° du même paragraphe ne désignent aucun représentant supplémentaire si elles emploient moins de cinquante salariés dans la collectivité.
IV. - Les sociétés en nom collectif et les sociétés en commandite désignent par délibération expresse conformément aux dispositions statutaires un représentant unique au titre des associés et de la société, sans préjudice de la possibilité de désigner des représentants supplémentaires en application du II ci-dessus."
Article L937-5
L'article L. 723-2 est ainsi rédigé :
"Art. L. 723-2. - I. - Les représentants mentionnés à l'article L. 723-1 applicable en Nouvelle-Calédonie doivent exercer dans l'entreprise soit des fonctions de président-directeur général, de président ou de membre du conseil d'administration, de directeur général, de président ou de membre du directoire, de président du conseil de surveillance, de gérant, de président ou de membre du conseil d'administration ou de directeur d'un établissement public à caractère industriel et commercial, soit, à défaut et pour les représenter à titre de mandataire, des fonctions impliquant des responsabilités de direction commerciale, technique ou administrative de l'entreprise ou de l'établissement.
II. - Les électeurs à titre personnel mentionnés au 1° du I du même article et les représentants des personnes physiques ou morales mentionnées au 2° du I de cet article doivent être ressortissants d'un Etat membre de la Communauté européenne.
Ils doivent, en outre, pour prendre part au vote :
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1° Remplir les conditions fixées à l'article L. 2 du code électoral, à l'exception de la nationalité ;
2° Ne pas avoir fait l'objet de l'interdiction visée à l'article L. 6 du code électoral ;
3° N'avoir pas été frappés depuis moins de quinze ans à compter du jour où la décision les ayant prononcées est devenue définitive de faillite personnelle ou d'une des mesures d'interdiction ou de déchéance telles que prévues au livre VI du présent code ou à la loi n° 85-98 du 25 janvier 1985 relative au redressement et à la liquidation judiciaires des entreprises ou à la loi n° 67-563 du 13 juillet 1967 sur le règlement judiciaire, la liquidation des biens, la faillite personnelle et les banqueroutes ;
4° Ne pas être frappé d'une peine d'interdiction, suivant les modalités prévues par l'article 131-27 du code pénal, d'exercer une profession commerciale ou industrielle, de diriger, d'administrer, de gérer ou de contrôler à un titre quelconque, directement ou indirectement, pour son propre compte ou pour le compte d'autrui, une entreprise commerciale ou industrielle ou une société commerciale ;
5° Ne pas avoir été condamnés à des peines, déchéances ou sanctions prononcées en vertu de législations en vigueur dans les Etats membres de la Communauté européenne équivalentes à celles visées aux 2°, 3° et 4°."
Article L937-6
Pour l'application de l'article L. 723-3, les mots : "le juge commis à la surveillance du registre du commerce et des sociétés. En cas de création d'un tribunal de commerce, le premier président de la cour d'appel désigne comme président de la commission un magistrat de l'ordre judiciaire" sont remplacés par les mots : "un magistrat de l'ordre judiciaire désigné par le premier président de la cour d'appel".
Article L937-7
L'article L. 723-4 est ainsi rédigé :
"Art. L. 723-4. - Sous réserve des dispositions de l'article L. 937-9, sont éligibles aux fonctions de juge d'un tribunal mixte de commerce les personnes âgées de trente ans au moins inscrites sur la liste électorale dressée en application de l'article L. 937-6 et justifiant soit d'une immatriculation en Nouvelle-Calédonie depuis cinq ans au moins au registre du commerce et des sociétés, soit, pendant le même délai, de l'exercice de l'une des qualités énumérées au I de l'article L. 723-2 applicable en Nouvelle-Calédonie."
Article L937-8
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L'article L. 723-5 est ainsi rédigé :
"Art. L. 723-5. - Est inéligible aux fonctions de juge d'un tribunal mixte de commerce tout candidat à l'égard duquel est ouverte une procédure de sauvegarde, redressement ou de liquidation judiciaires. La même disposition s'applique à tout candidat ayant une des qualités mentionnées au I de l'article L. 723-2 applicable en Nouvelle-Calédonie, lorsque la société ou l'établissement public auquel il appartient fait l'objet d'une procédure de sauvegarde, redressement ou de liquidation judiciaires."
Article L937-9
Le premier alinéa de l'article L. 723-7 est ainsi rédigé :
"Après douze années de fonctions judiciaires ininterrompues dans un même tribunal mixte de commerce, les juges des tribunaux mixtes de commerce ne sont plus éligibles dans ce tribunal pendant un an."
Article L937-10
Pour l'application de l'article L. 723-8, les mots : "membre d'un conseil de prud'hommes" sont remplacés par les mots : "assesseur d'un tribunal du travail".
Article L937-11
Pour l'application de l'article L. 723-9, les mots : "par correspondance ou par voie électronique." sont remplacés par les mots : "par procuration ou par correspondance dans des conditions fixées par décret en Conseil d'Etat. Chaque électeur ne peut disposer que d'une procuration."
Article L937-12
Pour l'application du premier alinéa de l'article L. 723-10, les mots : "deux tours" sont remplacés par les mots : "un tour", et il est ajouté à la fin de l'alinéa la phrase suivante : "Si plusieurs candidats obtiennent le même nombre de voix, le plus âgé est proclamé élu."
Article L937-13
Pour l'application de la section 3 du chapitre III du titre II du livre VII, les dispositions suivantes sont ajoutées :
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"I. - A la liste des candidats déclarés élus, la commission prévue par l'article L. 723-13 annexe une liste complémentaire comprenant les nom, qualité et domicile des candidats non élus. Ces candidats sont classés dans l'ordre décroissant du nombre de voix qu'ils ont obtenues. A égalité de voix, ils sont classés dans l'ordre décroissant de leur âge.
Les candidats figurant sur la liste complémentaire dressée en application du premier alinéa du présent article sont appelés à remplacer les juges dont le siège deviendrait vacant pour quelque cause que ce soit. Ils sont désignés, en suivant l'ordre de la liste complémentaire, par le président du tribunal mixte de commerce. Avant d'entrer en fonctions, ils prêtent serment dans les conditions prévues pour les juges des tribunaux mixtes de commerce.
II. - Si les sièges vacants ne peuvent être pourvus en application du I et si le nombre des vacances dépasse le tiers des effectifs du tribunal, il est procédé à des élections complémentaires.
Il en est de même en cas d'augmentation des effectifs d'un tribunal mixte de commerce.
Toutefois, il n'y a pas lieu de procéder à des élections complémentaires dans les douze mois précédant l'élection générale.
III. - Le mandat des juges désignés ou élus en application des I et II prend fin en même temps que celui des autres juges des tribunaux mixtes de commerce."
Chapitre VIII : Dispositions d'adaptation du livre VIII.
Article L938-1
Pour l'application en Nouvelle-Calédonie des articles L. 822-2 à L. 822-7, les termes énumérés ci-après sont remplacés ainsi qu'il suit :
1° "commission régionale d'inscription" par "commission territoriale d'inscription" ;
2° "chambre régionale des comptes" par "chambre territoriale des comptes" ;
3° "chambre régionale de discipline" par "chambre territoriale de discipline".
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Partie législative
LIVRE IX : Dispositions relatives à l'outre-mer.
TITRE IV : Dispositions applicables en Polynésie française.
Article L940-1
Sous réserve des adaptations prévues dans les chapitres ci-après, les dispositions suivantes du présent code sont applicables dans le territoire de la Polynésie française :
1° Le livre I, à l'exception des articles L. 124-1 à L. 126-1, L. 145-34 à L. 145-36, L. 145-38 et L. 145-39 ;
2° Le livre II, à l'exception des articles L. 225-219 à L. 225-223, L. 252-1 à L. 252-13 ;
3° Le livre III, à l'exception des articles L. 310-4, L. 321-1 à L. 321-38, L. 322-7 et L. 322-10 ;
4° Le livre V, à l'exception des articles L. 522-1 à L. 522-40, L. 524-12, L. 524-20 et L. 524-21 ;
5° Le livre VI, à l'exception des articles L. 622-19, L. 625-9 et L. 670-1 à L. 670-8 ;
6° Le titre II du livre VII, à l'exception des articles L. 722-3, L. 722-11 à L. 722-13, de l'article L. 723-6, du deuxième alinéa de l'article L. 723-7, du deuxième alinéa de l'article L. 723-10 et de l'article L. 723-11.
Les dispositions qui précèdent, a l'exception de celles du 6° et de l'article L. 610-1, sont celles en vigueur à la date de la publication de la loi organique n° 2004-192 du 27 février 2004 portant statut d'autonomie de la Polynésie française. Elles ne peuvent être modifiées que dans les conditions prévues à l'article 11 de cette loi organique.
Article L940-2
Pour l'application du présent code en Polynésie française, les termes énumérés ci-après sont remplacés comme suit :
1° " Tribunal de grande instance " ou " tribunal d'instance " par " tribunal de première instance " ;
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2° " Tribunal de commerce " ou " justice consulaire " par " tribunal mixte de commerce " ;
3° " Conseil de prud'hommes " par " tribunal du travail " ;
4° " Bulletin officiel des annonces civiles et commerciales " par " Journal officiel de la Polynésie française " ;
5° " Département " ou " arrondissement " par " territoire de la Polynésie française " ;
6° " Préfet " ou " sous-préfet " par " représentant de l'Etat dans le territoire ".
Article L940-3
Les références faites, par des dispositions du présent code applicables en Polynésie française, à d'autres articles du présent code ne concernent que les articles rendus applicables en Polynésie française avec les adaptations prévues dans les chapitres ci-dessous.
Article L940-4
En l'absence d'adaptation, les références faites, par des dispositions du présent code applicables en Polynésie française, à des dispositions qui n'y sont pas applicables sont remplacées par les références aux dispositions ayant le même objet applicables localement.
Article L940-5
Les références faites, par des dispositions du présent code applicables en Polynésie française, à des dispositions du code du travail n'y sont applicables que s'il existe une disposition applicable localement ayant le même objet.
Article L940-6
Les renvois faits, par des dispositions du présent code applicables en Polynésie française, à des dispositions de nature réglementaire sont remplacés par des renvois à des délibérations de l'autorité compétente de la Polynésie française, sous réserve des dispositions prévues dans les chapitres ci-après.
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Article L940-7
Les références à l'immatriculation au répertoire des métiers sont remplacées par les références à l'immatriculation faite conformément à la réglementation applicable en Polynésie française.
Article L940-8
Les articles faisant référence à la Communauté européenne sont applicables dans le respect de la décision d'association prévue à l'article 136 du traité instituant la Communauté européenne. Les références à l'accord sur l'Espace économique européen ne sont pas applicables.
Chapitre Ier : Dispositions d'adaptation du livre Ier.
Article L941-1
Par dérogation à l'article L. 940-6, le renvoi à des dispositions de nature réglementaire mentionné à l'article L. 143-23 est maintenu en ce qu'il concerne l'Institut national de la propriété industrielle.
Article L941-2
A l'article L. 122-1, les mots : " le préfet du département où l'étranger doit exercer son activité " sont remplacés par les mots : " le conseil des ministres de la Polynésie française ".
Article L941-3
Les dérogations prévues par les articles L. 123-25 à L. 123-27 sont applicables aux personnes physiques soumises à un régime simplifié d'imposition par la réglementation en vigueur en Polynésie française.
Article L941-4
Pour l'application de l'article L. 133-6 :
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I.-Les mots : " celles qui naissent des dispositions de l'article 1269 du code de procédure civile " sont remplacés par les mots : les demandes en révision de compte et en liquidation des fruits présentées en vue d'un redressement en cas d'erreur, d'omission ou de présentation inexacte ".
II.-Les dispositions du dernier alinéa sont applicables dans le cas de transport fait pour le compte de la Polynésie française.
Article L941-5
A l'article L. 133-7, les mots : " les droits, taxes, frais et amendes de douane liés à une opération de transport " sont supprimés.
Article L941-6
Pour l'application des articles L. 141-15, L. 143-7, L. 144-1 à L. 144-13 et L. 145-28, un magistrat du tribunal de première instance peut être délégué par le président.
Article L941-7
A l'article L. 141-13, les mots : " par les articles 638 et 653 du code général des impôts " sont remplacés par les mots :
" par les dispositions du code des impôts applicable en Polynésie française ".
Article L941-8
A l'article L. 144-5, les mots : " les articles L. 3211-2 et L. 3212-1 à L. 3212-12 du code de la santé publique " sont remplacés par les mots : " les articles du code de la santé publique applicable dans le territoire relatifs à l'hospitalisation ou à l'internement avec ou sans le consentement de l'intéressé ".
Article L941-9
L'article L. 144-11 est ainsi rédigé :
" Art. L. 144-11. - Si, conformément à la réglementation territoriale, le contrat de location-gérance est assorti d'une clause d'échelle mobile, la révision du loyer peut, nonobstant toute convention
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contraire, être demandée selon les conditions fixées par une délibération de l'assemblée de la Polynésie française lorsque, par le jeu de cette clause, ce loyer se trouve augmenté ou diminué de plus du quart par rapport au prix précédemment fixé, contractuellement ou judiciairement. "
Article L941-10
L'article L. 144-12 est ainsi rédigé :
" Art. L. 144-12. - A défaut d'accord amiable entre les parties sur la révision du loyer, l'instance est introduite et jugée conformément aux dispositions prévues en matière de révision du prix des baux à loyer d'immeubles ou de locaux à usage commercial ou industriel.
Le juge doit, en tenant compte de tous les éléments d'appréciation, adapter le jeu de l'échelle mobile à la valeur locative équitable au jour de la notification. Le nouveau prix est applicable à partir de cette même date, à moins que les parties ne se soient mises d'accord avant ou pendant l'instance sur une date plus ancienne ou plus récente. "
Article L941-11
L'article L. 145-2 est modifié ainsi qu'il suit :
I. - Au 4°, les mots : " à l'Etat, aux départements, aux communes, aux établissements publics " sont remplacées par les mots : " à l'Etat, aux collectivités territoriales et aux établissements publics " ;
II. - Au 6°, les mots : " à la caisse de sécurité sociale de la maison des artistes et reconnus auteurs d'oeuvres graphiques et plastiques, tels que définis par l'article 71 de l'annexe III du code général des impôts " sont remplacées par les mots : " à la caisse locale d'assurance sociale et reconnus auteurs d'oeuvres graphiques et plastiques au sens du code des impôts applicable dans le territoire ".
Article L941-12
Pour l'application de l'article L. 145-6, les mots : "l'évacuation des lieux compris dans un secteur ou périmètre prévu aux articles L. 313-4 et L. 313-4-2 du code de l'urbanisme" sont remplacés par les mots : "l'évacuation des lieux prévue à l'article L. 145-18".
Article L941-13
A l'article L. 145-13, les mots : " sous réserve des dispositions de la loi du 28 mai 1943 relative à l'application aux étrangers des lois en matière de baux à loyer et de baux à ferme " sont supprimés.
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Article L941-14
Le deuxième alinéa de l'article L. 145-18 est ainsi rédigé :
" Il en est de même pour effectuer des opérations de restauration immobilière comportant des travaux de remise en état, de conservation, de modernisation ou de démolition ayant pour conséquence la transformation des conditions d'habitabilité d'un ensemble d'immeubles nécessitant l'évacuation des lieux. Ces opérations peuvent être décidées et exécutées dans le respect de la réglementation locale, soit par les autorités publiques localement compétentes, soit à l'initiative d'un ou de plusieurs propriétaires, groupés ou non en association syndicale. Dans ce dernier cas, ce ou ces propriétaires y sont spécialement autorisés dans des conditions fixées par les autorités territoriales compétentes, qui précisent notamment les engagements exigés des propriétaires quant à la nature et à l'importance des travaux. Les immeubles acquis par un organisme de rénovation ne peuvent, après restauration, être cédés de gré à gré qu'aux conditions d'un cahier des charges type approuvé par lesdites autorités. "
Article L941-15
A l'article L. 145-26, les mots : " aux départements " sont remplacés par les mots : " à la Polynésie française ".
Article L941-16
L'article L. 145-37 est ainsi rédigé :
" Art. L. 145-37. - Les loyers des baux d'immeubles ou de locaux régis par le présent chapitre, renouvelés ou non, peuvent être révisés à la demande de l'une ou de l'autre des parties, dans les conditions prévues par délibération de l'assemblée de la Polynésie française. "
Article L941-17
L'article L. 145-43 est ainsi rédigé :
" Art. L. 145-43. - Sont dispensés de l'obligation d'exploiter pendant la durée de leur stage les commerçants et artisans, locataires du local dans lequel est situé leur fonds, qui sont admis à suivre un stage de conversion ou un stage de promotion conformément aux dispositions du code du travail applicable en Polynésie française. "
Article L941-18
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Le troisième alinéa de l'article L. 145-47 est supprimé.
Article L941-19
A l'article L. 145-56, les mots : " et de procédure " sont supprimés.
Chapitre II : Dispositions d'adaptation du livre II.
Article L942-1
Par dérogation à l'article L. 940-6, les renvois à des décrets mentionnés aux articles L. 225-35 et L. 225-68 sont maintenus.
Article L942-2
Pour l'application du livre II, les commissaires aux comptes et leurs suppléants sont choisis et exercent leurs fonctions selon la réglementation en vigueur en Polynésie française.
Article L942-3
Les 4° et 5° du III de l'article L. 225-21 sont supprimés.
Article L942-4
Aux articles L. 225-25 et L. 225-72, la référence aux articles 20 et 21 de la loi n° 88-1201 du 23 décembre 1988 relative aux organismes de placement collectif en valeurs mobilières et portant création des fonds communs de créances est supprimée.
Article L942-5
Aux articles L. 225-36 et L. 225-65, les mots : " dans le même département ou un département limitrophe " sont remplacés par les mots : " en Polynésie française ".
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Article L942-6
Le dernier alinéa de l'article L. 225-43 et celui de l'article L. 225-91 sont supprimés.
Article L942-7
Le 4° du IV de l'article L. 225-67 et le 4° du III de l'article L. 225-77 sont supprimés.
Article L942-8
Le 5° de l'article L. 225-115 est ainsi rédigé :
" 5° Du montant global, certifié par les commissaires aux comptes, des déductions du montant des bénéfices imposables de sociétés qui procèdent à des versements à des oeuvres d'organismes d'intérêt général ou de sociétés agréées ou à des donations d'oeuvres d'art à l'Etat ou à la Polynésie française, telles que prévues par les dispositions de droit fiscal applicables en Polynésie française, ainsi que la liste des actions nominatives de parrainage, de mécénat. "
Article L942-9
A l'article L. 823-6, après les mots : " le comité d'entreprise ", sont ajoutés les mots : " ou à défaut les délégués du personnel ".
Article L942-10
Aux articles L. 225-231, L. 232-3, L. 232-4, L. 234-1 et L. 234-2, aux mots : " au comité d'entreprise ", sont ajoutés les mots :
" ou à défaut aux délégués du personnel ".
Article L942-11
Le deuxième alinéa de l'article L. 823-18 est supprimé.
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Article L942-12
Au VI de l'article L. 225-270, les mots : " les dispositions de l'article 94 A du code général des impôts " sont remplacés par les mots : " les dispositions du code des impôts applicable dans le territoire relatives aux gains nets en capital réalisés à l'occasion de la cession à titre onéreux de valeurs mobilières et de droits sociaux ".
Article L942-13
Le dernier alinéa de l'article L. 228-36 est supprimé.
Article L942-14
A l'article L. 233-24, les mots : " ou du VII de l'article 97 " sont supprimés.
Article L942-15
Le deuxième alinéa de l'article L. 251-7 est supprimé.
Chapitre III : Dispositions d'adaptation du livre III.
Article L943-1
Les deuxième et troisième alinéas de l'article L. 310-1 sont supprimés.
Article L943-2
Le deuxième alinéa du I et le II de l'article L. 310-2 sont supprimés.
Article L943-3
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Le deuxième alinéa du I de l'article L. 310-3 est supprimé.
Article L943-4
Les 1°, 2° et 3° de l'article L. 310-5 sont supprimés.
Article L943-5
A l'article L. 322-1, les mots : " aux articles 53 de la loi n° 91-650 du 9 juillet 1991 relative à la réforme des procédures d'exécution et 945 du code de procédure civile " sont remplacés par les mots : " aux dispositions de procédure civile applicables localement et relatives à la vente de meubles dépendant d'une succession ".
Article L943-6
L'article L. 322-11 est ainsi rédigé :
" Art. L. 322-11. - Les contestations relatives aux ventes réalisées en application des délibérations en vigueur localement relatives à la vente volontaire, aux enchères, en gros, des marchandises par les courtiers assermentés sont portées devant le tribunal mixte de commerce. "
Article L943-7
L'article L. 322-15 est ainsi rédigé :
" Art. L. 322-15. - Il appartient toujours au tribunal ou au juge qui autorise ou ordonne la vente en vertu de l'article précédent, de désigner éventuellement, pour y procéder, une autre classe d'officiers publics que les courtiers assermentés. "
Article L943-8
L'article L. 322-16 est ainsi rédigé :
" Art. L. 322-16. - Les dispositions de l'article L. 322-11 sont applicables aux ventes visées aux articles L. 322-14 et L. 322-15. "
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Chapitre IV : Dispositions d'adaptation du livre IV.
Article L941-2-1
Pour son application en Polynésie française, l'article L. 123-11-5 du code de commerce est complété par un alinéa ainsi rédigé : Les agents des douanes sont qualifiés pour procéder à la recherche et à la constatation des infractions aux dispositions de ce dernier chapitre et des règlements pris pour son application par les personnes ou les organismes exerçant une activité de domiciliation, telle que définie par la réglementation applicable localement.A cet effet, ils agissent, conformément aux règles de recherche et de constatation des infractions déterminées par le code des douanes. Les infractions sont constatées par des procès-verbaux faisant foi jusqu'à preuve du contraire et transmis directement au parquet.
Chapitre V : Dispositions d'adaptation du livre V.
Article L945-1
Par dérogation à l'article L. 940-6, les renvois à des dispositions de nature réglementaire mentionnés aux articles L. 523-14 et L. 524-19 sont maintenus.
Article L945-2
A l'article L. 511-55, le mot " destitution " est supprimé.
Article L945-3
L'article L. 511-60 est ainsi rédigé :
" Art. L. 511-60. - Les modalités d'application des dispositions de la présente sous-section sont fixées par délibération de l'autorité territoriale compétente. "
Article L945-4
A l'article L. 511-61, les mots : " ou des collectivités territoriales " sont remplacés par les mots : " ou des communes ou de la Polynésie française ".
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Article L945-5
Le deuxième alinéa de l'article L. 511-62 est ainsi rédigé :
" La retraite comprend les sommes indiquées dans les articles L. 511-45 et L. 511-46, outre les droits de courtage et de timbre éventuellement prévus par les dispositions applicables en Polynésie française. "
Article L945-6
Aux articles L. 523-8 et L. 524-6, les mots : " articles 1426 à 1429 du code de procédure civile " sont remplacés par les mots : " dispositions de procédure civile applicables localement relatives aux offres de payement et à la consignation ".
Article L945-7
Au premier alinéa de l'article L. 525-2, après les mots : " au droit fixe " sont ajoutés les mots : " selon les modalités en vigueur en Polynésie française ".
Article L945-8
Au II de l'article L. 525-9, les mots : " au privilège visé à l'article L. 243-4 du code de la sécurité sociale " sont remplacés par les mots : " au privilège organisé en faveur de la caisse de prévoyance sociale du territoire. "
Article L945-9
L'article L. 525-18 est modifié ainsi qu'il suit :
I. - Au 1°, la référence au décret n° 53-968 du 30 septembre 1953 est remplacée par la référence au décret n° 55-639 du 20 mai 1955 ;
II. - Le 2° est ainsi rédigé :
" 2° Les navires de mer ainsi que les bateaux de navigation fluviale. "
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Chapitre VI : Dispositions d'adaptation du livre VI.
Article L946-1
Par dérogation à l'article L. 940-6, le renvoi à des dispositions de nature réglementaire mentionné à l'article L. 621-5 est maintenu.
Article L946-2
L'article L. 611-1 est modifié ainsi qu'il suit :
I.-Au premier alinéa, l'arrêté du représentant de l'Etat dans la région est remplacé par une décision du gouvernement de Polynésie française.
" II.-Au quatrième alinéa, les mots : " notamment en application des articles 5, 48 et 66 de la loi n° 82-213 du 2 mars 1982 modifiée relative aux droits et libertés des communes, des départements et des régions " sont supprimés.
Article L946-3
Pour l'application de l'article L. 612-1, les commissaires aux comptes et leurs suppléants sont choisis et exercent leurs fonctions selon la réglementation en vigueur localement.
Article L946-4
Le troisième alinéa de l'article L. 612-1 est supprimé.
Article L946-5
A l'article L. 612-2, après les mots : " au comité d'entreprise " sont ajoutés les mots : " ou, à défaut, aux délégués du personnel ".
Article L946-6
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A l'article L. 621-2, les mots : " dans chaque département " sont remplacés par les mots : " en Polynésie française ".
Article L946-7
A l'article L. 625-2, les mots : " mentionnée à l'article L. 432-7 du code du travail " sont remplacés par les mots : " à l'égard des informations présentant un caractère confidentiel et données comme telles ".
Article L946-8
Pour l'application de l'article L. 622-24, les organismes visés à l'article L. 351-21 du code du travail sont les organismes territoriaux ayant en charge le service de l'allocation d'assurance chômage et le recouvrement des contributions.
Article L946-9
Pour l'application des articles L. 622-24, L. 626-20, L. 625-3, L. 625-4 et L. 662-4, les institutions mentionnées à l'article L. 143-11-4 du code du travail sont les institutions territoriales chargées de la mise en oeuvre du régime d'assurance contre le risque de non-paiement des salaires, en cas de procédure de redressement ou de liquidation judiciaires.
Article L946-10
Pour l'application de l'article L. 621-60, les institutions régies par le livre IX du code de la sécurité sociale sont les institutions territoriales de retraite complémentaire ou supplémentaire ou de prévoyance, prévues par les dispositions applicables dans la collectivité et relatives aux régimes de sécurité et de protection sociales.
Article L946-11
A l'article L. 626-14, la référence à l'article 28 du décret n° 55-22 du 4 janvier 1955 portant réforme de la publicité foncière est remplacée par la référence aux dispositions applicables dans le territoire et relatives à la publicité des droits sur les immeubles autres que les privilèges et hypothèques.
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Article L946-12
A l'article L. 621-84, l'obligation faite au tribunal de tenir compte des dispositions contenues aux 1°, 2°, 3° et 4° de l'article L. 331-7 du code rural s'entend des prescriptions suivantes :
" Observer l'ordre des priorités établi entre l'installation des jeunes agriculteurs et l'agrandissement des exploitations, en tenant compte de l'intérêt économique et social du maintien de l'autonomie de l'exploitation faisant l'objet de la demande ;
Tenir compte, en cas d'agrandissement ou de réunion d'exploitations, des possibilités d'installation sur une exploitation viable, de la situation des terres concernées par rapport au siège de l'exploitation du ou des demandeurs, de la superficie des biens faisant l'objet de la demande et des superficies déjà mises en valeur par le ou les demandeurs, ainsi que par le preneur en place ;
Prendre en considération la situation personnelle du ou des demandeurs : âge, situation familiale et professionnelle et, le cas échéant, celle du preneur en place, ainsi que le nombre et la nature des emplois salariés en cause ;
Tenir compte de la structure parcellaire des exploitations concernées, soit par rapport au siège de l'exploitation, soit pour éviter que des mutations en jouissance ne remettent en cause des aménagements obtenus à l'aide de fonds publics. "
Article L946-13
Le premier alinéa de l'article L. 622-2 est complété par une phrase ainsi rédigée :
"Il peut lui être adjoint dans les mêmes conditions un ou plusieurs liquidateurs. "
Chapitre VII : Dispositions d'adaptation du livre VII.
Article L947-1
Le premier alinéa de l'article L. 721-1 est ainsi rédigé :
"Le tribunal mixte de commerce est composé du président du tribunal de première instance, président, de juges élus, sous réserve des dispositions de l'article L. 947-13, et d'un greffier.
Ce tribunal exerce les compétences dévolues en métropole au tribunal de commerce."
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Article L947-2
L'article L. 722-1 est ainsi rédigé :
"Art. L. 722-1. - Les jugements des tribunaux mixtes de commerce sont rendus, sauf dispositions qui prévoient un juge unique, par une formation comprenant, outre le président, trois juges élus ou désignés dans les conditions prévues à l'article L. 947-13. En cas de partage égal des voix, celle du président est prépondérante."
Article L947-3
Le premier alinéa de l'article L. 722-7 est ainsi rédigé :
"Les juges des tribunaux mixtes de commerce sont élus pour quatre ans. Ils sont rééligibles."
Article L947-4
L'article L. 723-1 est ainsi rédigé :
"Art. L. 723-1. - I. - Les juges des tribunaux mixtes de commerce sont élus dans le ressort de chacune de ces juridictions par un collège composé :
1° D'électeurs à titre personnel :
a) Les commerçants immatriculés en Polynésie française au registre du commerce et des sociétés, sous réserve, pour les associés en nom collectif et les associés commandités, des dispositions du IV du présent article ;
b) Les chefs d'entreprise immatriculés en Polynésie française conformément à la réglementation applicable à cette collectivité au registre du commerce et des sociétés ;
c) Les conjoints des personnes énumérées au a ou au b ci-dessus ayant déclaré au registre du commerce et des sociétés qu'ils collaborent à l'activité de leur époux sans autre activité professionnelle ;
d) Les capitaines au long cours ou capitaines de la marine marchande exerçant le commandement d'un navire immatriculé en France dont le port d'attache est situé dans la circonscription, les pilotes maritimes exerçant leurs fonctions dans un port situé dans la circonscription, les pilotes de l'aéronautique civile domiciliés dans la circonscription et exerçant le commandement d'un aéronef immatriculé en France ;
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e) Les membres en exercice des tribunaux mixtes de commerce, ainsi que les anciens membres de ces tribunaux ayant demandé à être inscrits sur la liste électorale ;
2° D'électeurs inscrits en qualité de représentant :
a) Les sociétés à caractère commercial au sens de l'article L. 210-1 et les établissements publics à caractère industriel et commercial dont le siège social est situé dans la circonscription ;
b) Au titre d'un établissement faisant l'objet dans la circonscription d'une inscription complémentaire ou d'une immatriculation secondaire, à moins qu'il en soit dispensé par les lois et règlements en vigueur, les personnes physiques mentionnées aux a et b du 1° et les personnes morales mentionnées au a du présent 2°, quelle que soit la circonscription où ces personnes exercent leur propre droit de vote ;
c) Les sociétés à caractère commercial dont le siège est situé hors du territoire national et qui disposent dans la circonscription d'un établissement immatriculé au registre du commerce et des sociétés ;
3° Les cadres qui, employés dans la circonscription par les électeurs mentionnés aux 1° ou 2°, exercent des fonctions impliquant des responsabilités de direction commerciale, technique ou administrative de l'entreprise ou de l'établissement.
II. - Au titre de leur siège social et de l'ensemble de leurs établissements situés dans la collectivité, les personnes physiques ou morales mentionnées aux 1° et 2° du I disposent :
1° D'un représentant supplémentaire, lorsqu'elles emploient dans la collectivité de dix à quarante-neuf salariés ;
2° De deux représentants supplémentaires, lorsqu'elles emploient dans la collectivité de cinquante à cent quatre-vingt-dix-neuf salariés ;
3° De trois représentants supplémentaires, lorsqu'elles emploient dans la collectivité de deux cents à quatre cent quatre-vingt-dix-neuf salariés ;
4° De quatre représentants supplémentaires, lorsqu'elles emploient dans la collectivité de cinq cents à mille neuf cent quatre-vingt-dix-neuf salariés ;
5° De cinq représentants supplémentaires, lorsqu'elles emploient dans la collectivité deux mille salariés ou plus.
III. - Toutefois, les personnes physiques énumérées aux a et b du 1° du I dont le conjoint bénéficie des dispositions du c du 1° du même paragraphe ne désignent aucun représentant supplémentaire si elles emploient moins de cinquante salariés dans la collectivité.
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IV. - Les sociétés en nom collectif et les sociétés en commandite désignent par délibération expresse conformément aux dispositions statutaires un représentant unique au titre des associés et de la société, sans préjudice de la possibilité de désigner des représentants supplémentaires en application du II ci-dessus."
Article L947-5
L'article L. 723-2 est ainsi rédigé :
"Art. L. 723-2. - I. - Les représentants mentionnés à l'article L. 723-1 applicable en Polynésie française doivent exercer dans l'entreprise soit des fonctions de président-directeur général, de président ou de membre du conseil d'administration, de directeur général, de président ou de membre du directoire, de président du conseil de surveillance, de gérant, de président ou de membre du conseil d'administration ou de directeur d'un établissement public à caractère industriel et commercial, soit, à défaut et pour les représenter à titre de mandataire, des fonctions impliquant des responsabilités de direction commerciale, technique ou administrative de l'entreprise ou de l'établissement.
II. - Les électeurs à titre personnel mentionnés au I du même article et les représentants des personnes physiques ou morales mentionnées au 2° du I de cet article doivent être ressortissants d'un Etat membre de la Communauté européenne.
Ils doivent, en outre, pour prendre part au vote :
1° Remplir les conditions fixées à l'article L. 2 du code électoral, à l'exception de la nationalité ;
2° Ne pas avoir fait l'objet de l'interdiction visée à l'article L. 6 du code électoral ;
3° N'avoir pas été frappés de faillite personnelle ou d'une des mesures d'interdiction ou de déchéance telles que prévues au livre VI du présent code dans sa rédaction applicable conformément au dernier alinéa de l'article L. 940-1 ou à la loi n° 85-98 du 25 janvier 1985 relative au redressement et à la liquidation judiciaires des entreprises ou à la loi n° 67-563 du 13 juillet 1967 sur le règlement judiciaire, la liquidation des biens, la faillite personnelle et les banqueroutes ou d'une mesure d'interdiction d'exercer une activité commerciale ;
4° Ne pas avoir été condamnés à des peines, déchéances ou sanctions prononcées en vertu de législations en vigueur dans les Etats membres de la Communauté européenne équivalentes à celles visées aux 2° et 3°."
Article L947-6
Pour l'application de l'article L. 723-3, les mots : "le juge commis à la surveillance du registre du commerce et des sociétés. En cas de création d'un tribunal de commerce, le premier président de la
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cour d'appel désigne comme président de la commission un magistrat de l'ordre judiciaire" sont remplacés par les mots : "un magistrat de l'ordre judiciaire désigné par le premier président de la cour d'appel".
Article L947-7
L'article L. 723-4 est ainsi rédigé :
"Art. L. 723-4. - Sous réserve des dispositions de l'article L. 947-9, sont éligibles aux fonctions de juge d'un tribunal mixte de commerce les personnes âgées de trente ans au moins inscrites sur la liste électorale dressée en application de l'article L. 947-6 et justifiant soit d'une immatriculation depuis cinq ans au moins au registre du commerce et des sociétés, soit, pendant le même délai, de l'exercice de l'une des qualités énumérées au I de l'article L. 723-2 dans sa rédaction applicable en Polynésie française."
Article L947-8
L'article L. 723-5 est ainsi rédigé :
"Art. L. 723-5. - Est inéligible aux fonctions de juge d'un tribunal mixte de commerce tout candidat à l'égard duquel est ouverte une procédure de redressement ou de liquidation judiciaires. La même disposition s'applique à tout candidat ayant une des qualités mentionnées au I de l'article L. 723-2 dans sa rédaction applicable en Polynésie française, lorsque la société ou l'établissement public auquel il appartient fait l'objet d'une procédure de redressement ou de liquidation judiciaires."
Article L947-9
Le premier alinéa de l'article L. 723-7 est ainsi rédigé :
"Après douze années de fonctions judiciaires ininterrompues dans un même tribunal mixte de commerce, les juges des tribunaux mixtes de commerce ne sont plus éligibles dans ce tribunal pendant un an."
Article L947-10
Pour l'application de l'article L. 723-8, les mots : "membre d'un conseil de prud'hommes" sont remplacés par les mots : "assesseur d'un tribunal du travail".
Article L947-11
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Pour l'application de l'article L. 723-9, les mots : "par correspondance ou par voie électronique." sont remplacés par les mots : "par procuration ou par correspondance dans des conditions fixées par décret en Conseil d'Etat. Chaque électeur ne peut disposer que d'une procuration."
Article L947-12
Pour l'application du premier alinéa de l'article L. 723-10, les mots : "deux tours" sont remplacés par les mots : "un tour", et il est ajouté à la fin de l'article la phrase suivante : "Si plusieurs candidats obtiennent le même nombre de voix, le plus âgé est proclamé élu".
Article L947-13
Pour l'application de la section 3 du chapitre III du titre II du livre VII, les dispositions suivantes sont ajoutées :
I. - A la liste des candidats déclarés élus, la commission prévue par l'article L. 723-13 annexe une liste complémentaire comprenant les nom, qualité et domicile des candidats non élus. Ces candidats sont classés dans l'ordre décroissant du nombre de voix qu'ils ont obtenues. A égalité de voix, ils sont classés dans l'ordre décroissant de leur âge.
Les candidats figurant sur la liste complémentaire dressée en application du premier alinéa du présent article sont appelés à remplacer les juges dont le siège deviendrait vacant pour quelque cause que ce soit. Ils sont désignés, en suivant l'ordre de la liste complémentaire, par le président du tribunal mixte de commerce. Avant d'entrer en fonctions, ils prêtent serment dans les conditions prévues pour les juges des tribunaux mixtes de commerce.
II. - Si les sièges vacants ne peuvent être pourvus en application du I et si le nombre des vacances dépasse le tiers des effectifs du tribunal, il est procédé à des élections complémentaires. Il en est de même en cas d'augmentation des effectifs d'un tribunal mixte de commerce.
Toutefois, il n'y a pas lieu de procéder à des élections complémentaires dans les douze mois précédant l'élection générale.
III. - Le mandat des juges désignés ou élus en application des I et II prend fin en même temps que celui des autres juges des tribunaux mixtes de commerce.
Chapitre VIII : Dispositions d'adaptation du livre VIII.
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Partie législative
LIVRE IX : Dispositions relatives à l'outre-mer.
TITRE V : Dispositions applicables dans les îles Wallis et Futuna.
Article L950-1
Sous réserve des adaptations prévues dans les chapitres ci-après, les dispositions suivantes du présent code sont applicables dans les îles Wallis et Futuna :
1° Le livre Ier, à l'exception des articles L. 123-1-1, L. 123-29 à L. 123-31, L. 124-1 à L. 126-1, L. 135-1 à L. 135-3 ;
2° Le livre II, à l'exception des articles L. 225-245-1, L. 229-1 à L. 229-15, L. 238-6, L. 244-5 et L. 252-1 à L. 252-13 ;
3° Le livre III, à l'exception des articles L. 321-1 à L. 321-38 ;
4° Le livre IV, à l'exception des articles L. 441-1, L. 442-1 et L. 470-6 ;
5° Le livre V, à l'exception des articles L. 522-1 à L. 522-40, L. 524-12, L. 524-20 et L. 524-21 ;
6° Le livre VI, à l'exception des articles L. 622-19, L. 625-9, L. 653-10 et L. 670-1 à L. 670-8 ;
7° Le titre Ier du livre VII, à l'exception des articles L. 711-5 et L. 711-9 ; les articles L. 721-3 à L. 721-6 ;
8° Le livre VIII, à l'exception des articles L. 812-1 à L. 813-1.
Article L950-2
Pour l'application du présent code dans les îles Wallis et Futuna, les termes énumérés ci-après sont remplacés comme suit :
1° "Tribunal de grande instance" ou "tribunal d'instance" par "tribunal de première instance" ;
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2° "Tribunal de commerce" ou "justice consulaire" par "tribunal de première instance statuant en matière commerciale" ;
3° "Conseil de prud'hommes" par "tribunal du travail" ;
4° "Bulletin officiel des annonces civiles et commerciales" par "Journal officiel du territoire" ;
5° "Département" ou "arrondissement" par "territoire" ;
6° "Préfet" ou "sous-préfet" par "représentant de l'Etat dans le territoire" ;
7° "Maire" par "chef de circonscription".
Article L950-3
Les références faites, par des dispositions du présent code applicables dans les îles Wallis et Futuna, à d'autres articles du présent code, ne concernent que les articles rendus applicables dans les îles Wallis et Futuna avec les adaptations prévues dans les chapitres ci-dessous.
Article L950-4
En l'absence d'adaptation, les références faites par des dispositions du présent code applicables dans les îles Wallis et Futuna, à des dispositions qui n'y sont pas applicables, sont remplacées par les références aux dispositions ayant le même objet applicables localement.
Article L950-5
Les références faites par des dispositions du présent code applicables dans les îles Wallis et Futuna, à des dispositions du code du travail n'y sont applicables que s'il existe une disposition applicable localement ayant le même objet.
Article L950-6
Les références à l'immatriculation au répertoire des métiers sont remplacées par les références à l'immatriculation faite conformément à la réglementation applicable dans les îles Wallis et Futuna.
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Article L950-7
Les articles faisant référence à la Communauté européenne sont applicables dans le respect de la décision d'association prévue à l'article 136 du traité instituant la Communauté européenne. Les références à l'accord sur l'Espace économique européen ne sont pas applicables.
Chapitre Ier : Dispositions d'adaptation du livre Ier.
Article L951-1
A l'article L. 122-1, les mots : " par le préfet du département où l'étranger doit exercer son activité " sont remplacés par les mots : " par le représentant de l'Etat dans le territoire dans le cas où l'étranger doit y exercer son activité ".
Article L951-1-1
A l'article L. 123-11-3, les références au code de la consommation et au code du travail sont remplacées par des références aux dispositions applicables localement ayant le même objet.
Article L951-1-2
Pour son application dans les îles Wallis et Futuna, l'article L. 123-11-6 est rédigé comme suit : Art.L. 123-11-6.-Les agents des douanes sont qualifiés pour procéder à la recherche et à la constatation des infractions aux dispositions des articles de la présente sous-section et des règlements pris pour leur application.A cet effet, ils agissent, conformément aux règles de recherche et de constatation des infractions déterminées par le code des douanes. Les infractions sont constatées par des procès-verbaux faisant foi jusqu'à preuve du contraire et transmis directement au parquet.
Article L951-2
Les dérogations prévues par les articles L. 123-25 à L. 123-27 sont applicables aux personnes physiques soumises à un régime simplifié d'imposition par la réglementation en vigueur localement.
Article L951-3
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A l'article L. 133-6, les mots : " celles qui naissent des dispositions de l'article 1269 du code de procédure civile " sont remplacés par les mots : " les demandes en révision de compte et en liquidation des fruits présentées en vue d'un redressement en cas d'erreur, d'omission ou de présentation inexacte ".
Article L951-4
Pour l'application des articles L. 141-15, L. 143-7, L. 144-1 à L. 144-13 et L. 145-28, un magistrat du tribunal de première instance peut être délégué par le président.
Article L951-5
A l'article L. 141-13, les mots : " par les articles 638 et 653 du code général des impôts " sont remplacés par les mots :
" par les dispositions du code des impôts applicable dans le territoire ".
Article L951-6
A l'article L. 144-5, les mots : " les articles L. 3211-2 et L. 3212-1 à L. 3212-12 du code de la santé publique " sont remplacés par les mots : " les articles du code de la santé publique applicable dans le territoire relatifs à l'hospitalisation et à l'internement avec ou sans le consentement de l'intéressé ".
Article L951-7
L'article L. 145-2 est modifié ainsi qu'il suit :
I.-abrogé ;
II.-Au 6°, les mots : " à la caisse de sécurité sociale de la maison des artistes et reconnus auteurs d'oeuvres graphiques et plastiques, tels que définis par l'article 71 de l'annexe III du code général des impôts " sont remplacés par les mots : " à la caisse locale d'assurance sociale et reconnus auteurs d'oeuvres graphiques et plastiques au sens du code des impôts applicable dans le territoire ".
Article L951-8
Pour l'application de l'article L. 145-6, les mots : "l'évacuation des lieux compris dans un secteur ou
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périmètre prévu aux articles L. 313-4 et L. 313-4-2 du code de l'urbanisme" sont remplacés par les mots "l'évacuation des lieux prévue à l'article L. 145-18".
Article L951-9
A l'article L. 145-13, les mots " sous réserve des dispositions de la loi du 28 mai 1943 relative à l'application aux étrangers des lois en matière de baux à loyer et de baux à ferme " sont supprimés.
Article L951-10
Le deuxième alinéa de l'article L. 145-18 est ainsi rédigé :
" Il en est de même pour effectuer des opérations de restauration immobilière comportant des travaux de remise en état, de conservation, de modernisation ou de démolition ayant pour conséquence la transformation des conditions d'habitabilité d'un ensemble d'immeubles nécessitant l'évacuation des lieux. Ces opérations peuvent être décidées et exécutées dans le respect de la réglementation locale, soit par les autorités publiques localement compétentes, soit à l'initiative d'un ou de plusieurs propriétaires, groupés ou non en association syndicale. Dans ce dernier cas, ce ou ces propriétaires y sont spécialement autorisés dans des conditions fixées par le représentant de l'Etat, qui précisent notamment les engagements exigés des propriétaires quant à la nature et à l'importance des travaux. Les immeubles acquis par un organisme de rénovation ne peuvent, après restauration, être cédés de gré à gré qu'aux conditions d'un cahier des charges type approuvé par le représentant de l'Etat. "
Article L951-12
Le premier alinéa de l'article L. 145-34 est ainsi rédigé :
" A moins d'une modification notable des éléments mentionnés aux 1° à 4° de l'article L. 145-33, le taux de variation du loyer applicable lors de la prise d'effet du bail à renouveler, si sa durée n'est pas supérieure à neuf ans, ne peut excéder la variation d'un indice local trimestriel mesurant le coût de la construction intervenue depuis la fixation initiale du loyer du bail expiré. Cet indice est calculé dans des conditions déterminées par arrêté du représentant de l'Etat. A défaut de clause contractuelle fixant le trimestre de référence de cet indice, il y a lieu de prendre en compte une variation de l'indice local trimestriel mesurant le coût de la construction fixé à cet effet par l'arrêté précité. "
Article L951-13
L'article L. 145-35 est modifié ainsi qu'il suit :
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I. - Au premier alinéa, le mot : " départementale " est supprimé ;
II. - Le dernier alinéa est ainsi rédigé :
" La composition de la commission, le mode de désignation de ses membres et ses règles de fonctionnement sont fixés par arrêté du représentant de l'Etat. "
Article L951-14
L'article L. 145-43 est ainsi rédigé :
" Art. L. 145-43. - Sont dispensés de l'obligation d'exploiter pendant la durée de leur stage les commerçants et artisans, locataires du local dans lequel est situé leur fonds, qui sont admis à suivre un stage de conversion ou un stage de promotion conformément aux dispositions du code du travail applicable dans le territoire. "
Chapitre II : Dispositions d'adaptation du livre II.
Article L952-1
Aux articles L. 225-177, L. 225-179 et L. 233-11, les mots : "la date de publication de la loi n° 2001-420 du 15 mai 2001 relative aux nouvelles régulations économiques" sont remplacés par les mots : "la date de publication de l'ordonnance n° 2004-604 du 24 juin 2004 portant réforme du régime des valeurs mobilières émises par les sociétés commerciales et extension à l'outre-mer de dispositions ayant modifié la législation commerciale".
Article L952-2
Aux articles L. 223-18, L. 225-36 et L. 225-65, les mots : "dans le même département ou un département limitrophe" sont remplacés par les mots : "dans le territoire".
Article L952-4
Au 5° de l'article L. 225-115, les mots : "versements effectués en application des 1 et 4 de l'article 238 bis du code général des impôts" sont remplacés par les mots : "déductions fiscales prévues par les dispositions de droit fiscal applicables dans le territoire et relatives au total des déductions du montant des bénéfices imposables des sociétés qui procèdent à des versements au profit d'oeuvres d'organismes d'intérêt général, ou de sociétés agréées ou à des donations d'oeuvre d'art à l'Etat".
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Article L952-5
Aux articles L. 225-105, L. 823-6 et L. 225-231, les mots :
" le comité d'entreprise " sont remplacés par les mots :
" les délégués du personnel ".
Article L952-6
Aux articles L. 225-231, L. 232-3, L. 232-4, L. 234-1 et L. 234-2, les mots : " au comité d'entreprise " sont remplacés par les mots : " aux délégués du personnel ".
Article L952-7
Au VI de l'article L. 225-270, les mots : " les dispositions de l'article 94 A du code général des impôts " sont remplacés par les mots : " les dispositions du code des impôts applicable dans le territoire relatives aux gains nets en capital réalisés à l'occasion de la cession à titre onéreux de valeurs mobilières et de droits sociaux ".
Article L952-8
Le dernier alinéa de l'article L. 228-36 est supprimé.
Article L952-9
A l'article L. 233-24, les mots : " ou du VII de l'article 97 " sont supprimés.
Article L952-10
Le deuxième alinéa de l'article L. 251-7 est supprimé.
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Chapitre III : Dispositions d'adaptation du livre III.
Article L953-1
Le III de l'article L. 310-2 et le 6° de l'article L. 310-5 sont supprimés.
Article L953-2
A l'article L. 322-1, les mots : "aux articles 53 de la loi n° 91-650 du 9 juillet 1991 relative à la réforme des procédures d'exécution et 945 du code de procédure civile" sont remplacés par les mots : "aux dispositions de procédure civile applicables dans le territoire relatives à la vente de meubles dépendant d'une succession".
Article L953-3
Le second alinéa de l'article L. 322-9 est ainsi rédigé :
"Ils se conforment aux dispositions prescrites par le code des impôts applicable dans le territoire relatives aux ventes publiques et par enchères."
Chapitre IV : Dispositions d'adaptation du livre IV.
Article L954-1
Au premier alinéa de l'article L. 430-2, le mot : "trois" est remplacé par le mot : "deux". Les quatrième et cinquième alinéas de cet article sont supprimés.
Article L954-2
A l'article L. 430-3, la dernière phrase du premier alinéa est supprimée. Au troisième alinéa du même article, les mots : ", ou le renvoi total ou partiel d'une opération de dimension communautaire," sont supprimés.
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Article L954-3
Le dernier alinéa de l'article L. 441-2 est remplacé par quatre alinéas ainsi rédigés :
" La cessation de la publicité, réalisée dans des conditions non conformes aux dispositions de l'alinéa 1, peut être ordonnée par le juge d'instruction ou par le tribunal saisi des poursuites, soit sur réquisition du ministère public, soit d'office. La mesure ainsi prise est exécutoire nonobstant toutes voies de recours.
Mainlevée peut en être donnée par la juridiction qui l'a ordonnée ou qui est saisie du dossier. La mesure cesse d'avoir effet en cas de décision de non-lieu ou de relaxe.
Les décisions statuant sur les demandes de mainlevée peuvent faire l'objet d'un recours devant la cour d'appel.
La cour d'appel statue dans un délai de dix jours à compter de la réception des pièces. "
Article L954-4
Au second alinéa de l'article L. 442-2, avant les mots :
" taxes sur le chiffre d'affaires ", est ajouté le mot :
" éventuelles ".
Article L954-5
Le dernier alinéa de l'article L. 442-3 est remplacé par quatre alinéas ainsi rédigés :
" La cessation de l'annonce publicitaire peut être ordonnée par le juge d'instruction ou par le tribunal saisi des poursuites, soit sur réquisition du ministère public, soit d'office. La mesure ainsi prise est exécutoire nonobstant toutes voies de recours.
Mainlevée peut en être donnée par la juridiction qui l'a ordonnée ou qui est saisie du dossier. La mesure cesse d'avoir effet en cas de décision de non-lieu ou de relaxe.
Les décisions statuant sur les demandes de mainlevée peuvent faire l'objet d'un recours devant la cour d'appel.
La cour d'appel statue dans un délai de dix jours à compter de la réception des pièces. "
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Article L954-6
A l'article L. 442-7, les mots : " ou coopérative d'entreprise ou d'administration " sont supprimés.
Article L954-7
L'article L. 443-1 est modifié ainsi qu'il suit :
I. - Au 1°, les mots : " visés aux articles L. 326-1 à L. 326-3 du code rural " sont remplacés par les mots : " prévus par les dispositions de droit rural applicables dans le territoire " ;
II. - Au 3°, les mots : " à l'article 403 du code général des impôts " sont remplacés par les mots : " par les dispositions du code des impôts applicable dans le territoire. "
III. - Le 4° est ainsi rédigé :
" 4° A soixante-quinze jours après le jour de livraison pour les achats de boissons alcooliques passibles des droits de circulation prévus par le code des impôts applicable dans le territoire ".
Chapitre V : Dispositions d'adaptation du livre V.
Article L955-1
A l'article L. 511-61, les mots : " ou des collectivités territoriales " sont remplacés par les mots : " ou des îles Wallis et Futuna ".
Article L955-2
Le deuxième alinéa de l'article L. 511-62 est ainsi rédigé :
" La retraite comprend les sommes indiquées dans les articles L. 511-45 et L. 511-46, outre les droits de courtage et de timbre éventuellement prévus par les dispositions du code des impôts applicable dans les îles Wallis et Futuna. "
Article L955-3
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Aux articles L. 523-8 et L. 524-6, les mots : " articles 1426 à 1429 du code de procédure civile " sont remplacés par les mots : " dispositions de procédure civile applicables localement relatives aux offres de payement et à la consignation ".
Article L955-4
Le premier alinéa de l'article L. 524-19 est ainsi rédigé :
" Le montant des droits à percevoir par le greffier du tribunal de première instance statuant en matière commerciale est fixé par décret. "
Article L955-5
Au premier alinéa de l'article L. 525-2, après les mots : " au droit fixe " sont ajoutés les mots : " selon les modalités en vigueur dans les îles Wallis et Futuna ".
Article L955-6
Au II de l'article L. 525-9, les mots : " au privilège visé à l'article L. 243-4 du code de la sécurité sociale " sont remplacés par les mots : " au privilège organisé en faveur de la caisse de prévoyance sociale du territoire ".
Article L955-7
L'article L. 525-18 est modifié ainsi qu'il suit :
I. - Au 1°, la référence au décret n° 53-968 du 30 septembre 1953 est remplacée par la référence au décret n° 55-639 du 20 mai 1955 ;
II. - Le 2° est ainsi rédigé :
" 2° Les navires de mer ainsi que les bateaux de navigation fluviale. "
Chapitre VI : Dispositions d'adaptation du livre VI.
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Article L956-1
Les mesures d'application prévues aux articles L. 621-4, L. 625-1, L. 626-3, L. 626-5 à L. 626-7, L. 626-14 et L. 626-16 sont fixées par l'assemblée territoriale.
Article L956-2
A l'article L. 625-2, les mots : " mentionnée à l'article L. 432-7 du code du travail " sont remplacés par les mots : " à l'égard des informations présentant un caractère confidentiel et données comme telles ".
Article L956-3
Pour l'application de l'article L. 622-24, les organismes visés à l'article L. 351-21 du code du travail sont les organismes locaux ayant en charge le service de l'allocation d'assurance chômage et le recouvrement des contributions.
Article L956-4
Pour l'application des articles L. 622-24, L. 622-26, L. 625-4, L. 626-5, L. 626-20, L. 631-18, L. 641-14 et L. 662-4, les institutions mentionnées à l'article L. 143-11-4 du code du travail sont les institutions locales chargées de la mise en oeuvre du régime d'assurance contre le risque de non-paiement des salaires, en cas de procédure de redressement ou de liquidation judiciaires.
Article L956-5
Pour l'application de l'article L. 611-7, L. 626-6 et L. 643-3, les institutions régies par le livre IX du code de la sécurité sociale sont les institutions locales de retraite complémentaire ou supplémentaire ou de prévoyance, prévues par les dispositions applicables dans les îles Wallis et Futuna et relatives aux régimes de sécurité et de protection sociales.
Article L956-7
A l'article L. 642-2, l'obligation faite au tribunal de tenir compte des dispositions contenues aux 1°, 2°, 3° et 4° de l'article L. 331-3 du code rural s'entend des prescriptions suivantes :
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Observer l'ordre des priorités établi entre l'installation des jeunes agriculteurs et l'agrandissement des exploitations, en tenant compte de l'intérêt économique et social du maintien de l'autonomie de l'exploitation faisant l'objet de la demande ;
Tenir compte, en cas d'agrandissement ou de réunion d'exploitations, des possibilités d'installation sur une exploitation viable, de la situation des terres concernées par rapport au siège de l'exploitation du ou des demandeurs, de la superficie des biens faisant l'objet de la demande et des superficies déjà mises en valeur par le ou les demandeurs, ainsi que par le preneur en place ;
Prendre en considération la situation personnelle du ou des demandeurs : âge, situation familiale et professionnelle et, le cas échéant, celle du preneur en place, ainsi que le nombre et la nature des emplois salariés en cause ;
Tenir compte de la structure parcellaire des exploitations concernées, soit par rapport au siège de l'exploitation, soit pour éviter que des mutations en jouissance ne remettent en cause des aménagements obtenus à l'aide de fonds publics.
Article L956-9
Le 4° du III de l'article L. 643-11 ne s'applique pas.
Chapitre VII : Dispositions d'adaptation du livre VII.
Article L957-1
Aux articles L. 711-2 et L. 711-4, le mot : " Gouvernement " est remplacé par les mots : " représentant de l'Etat dans le territoire ".
Article L957-2
Au troisième alinéa de l'article L. 711-6, les mots : " ou la commune " sont remplacés par les mots : " ou le territoire ".
Article L957-3
A l'article L. 712-1, les mots : " au moyen d'une taxe additionnelle à la taxe professionnelle " sont
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remplacés par les mots : " comme il est dit dans les dispositions du code des impôts applicable dans les îles Wallis et Futuna ".
Chapitre VIII : Dispositions d'adaptation du livre VIII
Article L958-1
Les articles L. 814-1 à L. 814-5 sont applicables en tant qu'ils concernent les administrateurs judiciaires.
Article L958-2
Pour l'application dans les îles Wallis et Futuna des articles L. 822-2 à L. 822-7, les termes énumérés ci-après sont remplacés ainsi qu'il suit :
1° "commission régionale d'inscription" par "commission territoriale d'inscription" ;
2° "chambre régionale des comptes" par "chambre territoriale des comptes de Nouvelle-Calédonie" ;
3° "chambre régionale de discipline" par "chambre territoriale de discipline".
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Code de commerce
Partie réglementaire
LIVRE Ier : Du commerce en général.
TITRE Ier : De l'acte de commerce.
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Partie réglementaire
LIVRE Ier : Du commerce en général.
TITRE II : Des commerçants.
Chapitre Ier : De la définition et du statut.
Article R121-1
Est considéré comme conjoint collaborateur le conjoint du chef d'une entreprise commerciale, artisanale ou libérale qui exerce une activité professionnelle régulière dans l'entreprise sans percevoir de rémunération et sans avoir la qualité d'associé au sens de l'article 1832 du code civil.
Article R121-2
En vue de l'application de l'article L. 121-4, les conjoints qui exercent à l'extérieur de l'entreprise une activité salariée d'une durée au moins égale à la moitié de la durée légale du travail, ou une activité non salariée, sont présumés ne pas exercer dans l'entreprise une activité professionnelle de manière régulière.
Article R121-3
Dans les sociétés mentionnées au II de l'article L. 121-4, le statut de conjoint collaborateur est ouvert au conjoint du chef d'une entreprise dont l'effectif n'excède pas vingt salariés. L'appréciation de l'effectif est effectuée conformément aux articles L. 117-11-1 et L. 620-10 du code du travail.
Article R121-4
Lorsque, sur une période de vingt-quatre mois consécutifs, l'effectif salarié dépasse le seuil mentionné à l'article R. 121-3, le chef d'entreprise doit, dans les deux mois, demander la radiation de la mention du conjoint collaborateur dans les conditions fixées au 3° de l'article R. 121-5.
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Article R121-5
Le centre de formalités des entreprises reçoit, dans les conditions prévues par le présent livre :
1° Dans le dossier unique de déclaration de création de l'entreprise, la déclaration de l'option choisie, le cas échéant, par le conjoint du chef d'entreprise en application du I de l'article L. 121-4 ;
2° La déclaration modificative portant mention que le conjoint exerce une activité professionnelle dans les conditions de l'article R. 121-1 dans les deux mois à compter du respect de ces conditions ;
3° La déclaration de radiation du conjoint collaborateur lorsque celui-ci cesse de remplir les conditions prévues à l'article R. 121-1 dans les deux mois à compter de la cessation du respect de ces conditions.
Le centre de formalités des entreprises notifie au conjoint la réception de la déclaration d'option du statut de conjoint collaborateur mentionnée au 1° et des déclarations de modification ou de radiation visées aux 2° et 3° par lettre recommandée avec demande d'avis de réception.
Article R121-6
Les dispositions du présent chapitre sont également applicables à la personne qui est liée au chef d'entreprise par un pacte civil de solidarité.
Chapitre II : Des commerçants étrangers.
Article D122-1
I. - L'étranger résidant hors de France tenu en application de l'article L. 122-1 à une obligation de déclaration pour l'exercice sur le territoire français d'une profession commerciale, industrielle ou artisanale dans des conditions rendant nécessaire son inscription ou sa mention au registre du commerce et des sociétés ou au répertoire des métiers adresse, préalablement à celles-ci, une déclaration au préfet du département dans lequel il envisage d'exercer pour la première fois son activité.
Lorsque plusieurs établissements sont ou doivent être implantés simultanément dans différents départements, la déclaration préalable doit être effectuée auprès du préfet du département d'installation de l'établissement principal.
II. - Lorsque cette activité est exercée en France par une personne morale, la déclaration préalable est effectuée par l'une des personnes suivantes :
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1° L'associé tenu indéfiniment ou indéfiniment et solidairement des dettes sociales ;
2° L'associé ou le tiers ayant le pouvoir de diriger, gérer ou le pouvoir général d'engager à titre habituel la personne morale ;
3° Le représentant légal des associations régies par la loi du 1er juillet 1901 qui émettent des obligations et exercent une activité économique depuis au moins deux ans ;
4° Le représentant légal des associations de change manuel ;
5° L'administrateur ou le représentant permanent d'un groupement d'intérêt économique à objet commercial ;
6° La personne physique ayant le pouvoir d'engager une personne morale de droit étranger au titre :
- d'un établissement, d'une succursale ou d'une représentation commerciale implantée en France ;
- d'une agence commerciale d'un Etat, collectivité ou établissement public étranger établi en France et effectuant des actes de commerce.
Lorsque l'activité est exercée par une personne physique, la personne ayant le pouvoir d'engager, à titre habituel, un commerçant ou un artisan personne physique doit satisfaire à l'obligation de déclaration préalable.
Article D122-2
La déclaration préalable est déposée auprès de l'autorité compétente par l'étranger visé à l'article D. 122-1 ou par son mandataire ou est effectuée par voie de lettre recommandée avec demande d'avis de réception.
Cette déclaration est accompagnée :
1° Des indications relatives à l'état civil du déclarant ;
2° De la copie de l'extrait du casier judiciaire ou de toute autre pièce similaire du pays dont il est ressortissant ;
3° D'une copie des statuts de la société.
Le préfet remet sans délai un récépissé de déclaration sur présentation d'un dossier complet par l'étranger ou son mandataire. Lorsque la déclaration préalable est effectuée par voie postale, le préfet adresse le récépissé par la même voie dans un délai de quinze jours à compter de la date de
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réception d'un dossier complet.
Article D122-3
Le récépissé mentionne l'identité du déclarant et le statut sous couvert duquel il exerce son activité ainsi que la dénomination, l'adresse et l'activité de l'établissement.
Article D122-4
L'extension à une nouvelle activité commerciale industrielle ou artisanale ou le changement d'activité est déclaré par l'étranger ou son mandataire au préfet compétent qui lui remet un nouveau récépissé dans les conditions de l'article D. 122-2.
Il est fourni à l'appui de ces déclarations un extrait du registre du commerce et des sociétés ou un extrait du répertoire des métiers.
Chapitre III : Des obligations générales des commerçants
Section préliminaire : Des centres de formalités des entreprises.
Article R123-1
I.-Les centres de formalités des entreprises permettent aux entreprises de souscrire en un même lieu l'ensemble des formalités et procédures nécessaires à l'accès et à l'exercice de leur activité.
Ils reçoivent à cet effet le dossier unique prévu à l'article 2 de la loi n° 94-126 du 11 février 1994 relative à l'initiative et à l'entreprise individuelle. Ce dossier comporte :
1° Les déclarations relatives à la création, aux modifications de la situation ou à la cessation d'activité, que les entreprises sont tenues de remettre aux administrations, personnes ou organismes mentionnés à l'annexe 1-1 à l'article R. 123-30 ;
2° Les demandes d'autorisation que les entreprises sont tenues de remettre aux autorités compétentes pour la délivrance de ces autorisations sauf si le déclarant souhaite déposer ces demandes directement auprès des autorités compétentes.
Les centres de formalités des entreprises reçoivent également les notifications effectuées par les greffes des tribunaux de commerce ou des tribunaux de grande instance statuant en matière commerciale, en application de l'article R. 123-83.
II.-Les centres de formalités des entreprises transmettent les renseignements ou pièces à chacun des organismes destinataires et, le cas échéant et selon leur compétence, à chacune des autorités
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habilitées à délivrer les autorisations.
Sous réserve des dispositions du dernier alinéa de l'article R. 123-3, il leur est interdit de communiquer à des tiers les renseignements contenus dans les déclarations.
Les organismes et les autorités compétents pour statuer sur les déclarations et les demandes d'autorisation dont ils sont saisis par les centres de formalités des entreprises informent ces derniers de leurs décisions.
III.-Les activités pour lesquelles le recours aux centres de formalités des entreprises est possible pour les démarches mentionnées au 2° du I sont fixées par arrêté du ministre chargé de l'économie.
Article R123-2
Les centres de formalités des entreprises mettent à disposition des personnes intéressées une documentation précisant les obligations du centre ainsi que les éléments que doit contenir le dossier de déclaration et, le cas échéant, le dossier de demandes d'autorisation.
Article R123-3
1° Sous réserve des dispositions des 2° et 3°, les chambres de commerce et d'industrie créent et gèrent les centres de formalités des entreprises compétents pour :
a) Les commerçants ;
b) Les sociétés commerciales.
2° Les chambres de métiers et de l'artisanat créent et gèrent les centres compétents pour les personnes physiques et les sociétés assujetties à l'immatriculation au répertoire des métiers et pour les personnes physiques bénéficiant de la dispense d'immatriculation prévue au V de l'article 19 de la loi n° 96-603 du 5 juillet 1996 relative au développement et à la promotion du commerce et de l'artisanat, à l'exclusion des personnes mentionnées au 3° du présent article.
3° La chambre nationale de la batellerie artisanale crée et gère le centre compétent pour les personnes physiques et les sociétés assujetties à l'immatriculation au registre des entreprises de la batellerie artisanale.
4° Les greffes des tribunaux de commerce ou des tribunaux de grande instance statuant commercialement créent et gèrent les centres compétents pour :
a) Les sociétés civiles et autres que commerciales ;
b) Les sociétés d'exercice libéral ;
c) Les personnes morales assujetties à l'immatriculation au registre du commerce et des sociétés autres que celles mentionnées aux 1°, 2° et 3° ;
d) Les établissements publics industriels et commerciaux ;
e) Les agents commerciaux ;
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f) Les groupements d'intérêt économique et les groupements européens d'intérêt économique.
5° Les unions de recouvrement des cotisations de sécurité sociale et d'allocations familiales (URSSAF) ou les caisses générales de sécurité sociale créent et gèrent les centres compétents pour :
a) Les personnes exerçant, à titre de profession habituelle, une activité indépendante réglementée ou non autre que commerciale, artisanale ou agricole ;
b) Les employeurs dont les entreprises ne sont pas immatriculées au registre du commerce et des sociétés, au répertoire des métiers ou au registre des entreprises de la batellerie artisanale, et qui ne relèvent pas des centres mentionnés au 6°.
6° Les chambres d'agriculture créent et gèrent les centres compétents pour les personnes physiques et morales exerçant à titre principal des activités agricoles.
7° Les services des impôts créent et gèrent les centres compétents pour les personnes suivantes dès lors qu'elles exercent leur activité à titre de profession habituelle, qu'elles ne relèvent pas des dispositions des 1° à 6° et qu'elles n'ont pas d'autres obligations déclaratives que statistiques et fiscales :
a) Les assujettis à la taxe sur la valeur ajoutée ;
b) Les assujettis à l'impôt sur le revenu au titre des bénéfices industriels et commerciaux ;
c) Les redevables de l'impôt sur le revenu au titre des bénéfices non commerciaux ;
d) Les redevables de l'impôt sur les sociétés.
Les déclarations des personnes bénéficiant de la dispense d'immatriculation au registre du commerce et des sociétés prévue à l'article L. 123-1-1 ainsi que les déclarations des personnes physiques exerçant une activité artisanale et ayant opté pour le régime prévu à l'article L. 133-6-8 du code de la sécurité sociale sont recueillies par les centres de formalités des entreprises mentionnés respectivement au 1° et au 2° du présent article. Elles sont alors transmises aux centres de formalités des entreprises compétents mentionnés aux 1° et 2° aux fins d'information ainsi que, le cas échéant, aux fins d'immatriculation au répertoire des métiers sans formalité additionnelle.
Les personnes souhaitant exercer ou exerçant une activité de restauration à titre principal relèvent des centres de formalités des entreprises gérés par les chambres de commerce et d'industrie mentionnés au 1°.
Article R123-4
Chaque centre de formalités des entreprises est compétent à l'égard des entreprises dont le siège social, l'établissement principal, un établissement secondaire ou l'adresse est situé dans le ressort territorial de l'administration, personne ou organisme qui le crée.
Article R123-5
Le dépôt des déclarations prévues à l'annexe 1-2 au présent livre est obligatoirement effectué dans les centres de formalités des entreprises au terme d'un délai d'un an à compter de la création du
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centre.
Toutefois, lorsque la déclaration comporte une demande d'immatriculation au registre du commerce et des sociétés, d'inscription modificative ou de radiation, le déclarant a la faculté de déposer le dossier de déclaration directement auprès du greffe du tribunal compétent pour y procéder, soit sur support papier, soit par voie électronique. Il peut, lorsqu'il utilise le support papier, joindre également à sa déclaration le dossier des demandes d'autorisation. Le greffe, qui conserve la demande d'inscription, transmet sans délai le dossier au centre de formalités des entreprises compétent.
Lorsque la déclaration est effectuée par voie électronique, il est fait application des dispositions particulières prévues aux articles R. 123-20 à R. 123-27.
Article R123-6
Les déclarations, et le cas échéant les demandes d'autorisation, sont présentées au centre compétent en application des articles R. 123-3 et R. 123-4. Si plusieurs centres se trouvent compétents, Les déclarations, et le cas échéant les demandes d'autorisation, sont présentées à l'un d'eux au choix du déclarant, le centre choisi étant tenu d'accepter le dossier.
Article R123-7
Le dossier unique comprend :
I.-Pour le dossier de déclarations mentionné au 1° du I de l'article R. 123-1 :
1° Les déclarations signées du déclarant ou de son mandataire, accompagnées, le cas échéant, du pouvoir du mandataire ;
2° Les pièces justificatives prescrites, selon les dispositions législatives ou réglementaires en vigueur ;
3° Les actes qui sont remis aux organismes destinataires, dans la forme dans laquelle ce dépôt doit être effectué ;
4° Le titre de paiement des frais, droits ou redevances prescrits par les dispositions législatives ou réglementaires en vigueur.
Les formulaires de déclaration et la liste des pièces justificatives font l'objet d'une homologation par l'autorité désignée à l'article 3 du décret n° 98-1083 du 2 décembre 1998 relatif aux simplifications administratives.
II.-Pour le dossier de demandes d'autorisation mentionné au 2° du I de l'article R. 123-1 :
1° Les demandes d'autorisation ou déclarations préalables ;
2° Les pièces justificatives prescrites, selon les dispositions législatives ou réglementaires en vigueur ;
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3° Le titre de paiement des frais, droits ou redevances prescrits par les dispositions législatives ou réglementaires en vigueur.
Article R123-8
Le centre de formalités des entreprises est réputé saisi du dossier visé à l'article R. 123-1 lorsque les déclarations et, le cas échéant, les demandes d'autorisation, qui lui sont remises directement ou adressées par voie postale ou électronique, répondent aux conditions suivantes :
I.-Les déclarations visées au 1° du I de l'article R. 123-1 sont établies sur les formulaires homologués prévus à l'article R. 123-7, signées du déclarant ou de son mandataire. Elles comportent les énonciations indispensables pour identifier :
1° Pour les créations d'entreprises :
a) Les nom, nom d'usage et prénoms du déclarant pour les personnes physiques, la dénomination ou la raison sociale pour les personnes morales ;
b) La forme juridique de l'entreprise ;
c) Le siège de l'entreprise, le domicile du déclarant ou l'adresse de l'établissement ;
d) L'objet de la formalité ;
e) Les activités générales de l'entreprise ou de l'établissement ;
f) L'existence de salariés dans l'entreprise ou dans l'établissement et, le cas échéant, leur nombre ;
g) La date d'effet de l'événement objet de la formalité ;
h) Les date et lieu de naissance des déclarants personnes physiques ;
2° Pour les modifications de la situation de l'entreprise ainsi que pour sa cessation d'activité :
a) Les nom, nom d'usage, prénoms et pseudonyme du déclarant pour les personnes physiques, la dénomination ou la raison sociale pour les personnes morales ;
b) Le numéro unique d'identification de l'entreprise et, le cas échéant, le nom de la ville où se trouve le greffe où elle est immatriculée, ou la chambre de métiers et de l'artisanat où elle est inscrite au répertoire des métiers ;
c) L'objet de la formalité, ainsi que la date d'effet de l'événement la justifiant.
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Le centre ne peut refuser les déclarations respectant les conditions ci-dessus énumérées, ni en apprécier le bien-fondé.
II.-Les demandes d'autorisation visées au 2° du I de l'article R. 123-1 mentionnent l'identité du demandeur et l'objet de la demande. Le centre ne peut refuser les déclarations et demandes d'autorisation respectant les conditions ci-dessus énumérées ni en apprécier le bien-fondé.
Article R123-9
Le centre de formalités des entreprises compétent, saisi du dossier complet conformément aux dispositions de l'article R. 123-7, transmet le jour même aux organismes destinataires, et le cas échéant aux autorités habilitées à délivrer les autorisations, les informations et pièces les concernant.
Article R123-10
Le centre de formalités des entreprises saisi remet ou transmet, lors du dépôt, un récépissé au déclarant ou à son mandataire. Si le dépôt est effectué par voie postale, le récépissé est envoyé le jour même ou le premier jour ouvrable suivant.
1° Dans le cas d'une déclaration mentionnée au 1° du I de l'article R. 123-1 :
a) Lorsque le dossier est complet conformément aux dispositions de l'article R. 123-7, le récépissé indique les organismes auxquels il a été transmis le jour même. Ce récépissé prend le nom de récépissé de dossier de création d'entreprise en application de l'article R. 123-16 ;
b) Lorsque le dossier est incomplet, sous réserve des dispositions du c du 2°, ou lorsque la ou les autorisations mentionnées au 2° du I de l'article R. 123-1 doivent être obtenues préalablement à la déclaration mentionnée au 1° du I de l'article R. 123-1, le récépissé indique les compléments qui doivent être apportés par le déclarant dans un délai de quinze jours ouvrables à compter de la réception du récépissé ou de la délivrance de la ou des autorisations. Dans ce cas, le récépissé ne vaut pas récépissé de dossier de création d'entreprise.
2° Dans le cas d'une demande d'autorisation mentionnée au 2° du I de l'article R. 123-1 :
a) Lorsque le dossier contient toutes les pièces nécessaires à la délivrance de la ou des autorisations requises, conformément à l'article R. 123-7, le récépissé se substitue à l'accusé de réception des demandes présentées aux autorités. Il indique le ou les délais prévus par les textes législatifs ou réglementaires en vigueur pour la délivrance de la ou des autorisations requises pour exercer l'activité qui fait l'objet de la demande ainsi que les délais et voies de recours pour contester la ou les décisions d'octroi des autorisations.
b) Lorsque le dossier est incomplet, sous réserve des dispositions du c ci-dessous, le récépissé indique les compléments qui doivent être apportés par le déclarant dans un délai de quinze jours ouvrables à compter de la réception du récépissé.
c) Lorsqu'un document attestant de l'accomplissement de la formalité de création prévue au 1° du I de l'article R. 123-1 est nécessaire préalablement à la délivrance de la ou des autorisations requises
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ou à la délivrance de pièces elles-mêmes nécessaires à la délivrance de la ou des autorisations requises, le dossier de demande d'autorisation fait l'objet d'un récépissé provisoire attestant la réception des pièces remises par le déclarant et la date de la remise.
Un second récépissé est adressé au déclarant lorsque le centre de formalités des entreprises reçoit directement de l'autorité compétente le document attestant de l'accomplissement de la formalité prévue au 1° du I de l'article R. 123-1. Ce récépissé vaut accusé de réception des demandes présentées aux autorités administratives dans les conditions prévues au a.
Si le demandeur doit accomplir des démarches personnelles pour compléter son dossier de demande d'autorisation, le centre de formalités des entreprises l'informe qu'il dispose d'un délai de quinze jours ouvrables, le cas échéant renouvelable une fois, à compter de la remise du document attestant de l'accomplissement de la formalité prévue au 1° du I de l'article R. 123-1 pour déposer les pièces résultant de ses démarches. Au vu de ces pièces, il lui est délivré un récépissé qui vaut accusé de réception des demandes présentées aux autorités administratives dans les conditions prévues au a.
3° Lorsque le centre s'estime incompétent, le récépissé indique le centre auquel le dossier est transmis le jour même.
Article R123-11
I.-Si les éléments demandés ont été transmis par le déclarant avant l'expiration des délais mentionnés à l'article R. 123-10, le centre transmet le jour même :
1° Aux organismes destinataires la déclaration ainsi que, le cas échéant, les pièces annexées qui leur sont destinées ;
2° Aux organismes habilités à délivrer les autorisations, qui en accusent réception, les demandes d'autorisation ainsi que, le cas échéant, les pièces annexées qui leur sont destinées.
II.-Si, à l'expiration des délais mentionnés à l'article R. 123-10, les éléments demandés n'ont pas été transmis, le centre de formalités des entreprises procède de la manière suivante :
1° Pour les déclarations visées au 1° du I de l'article R. 123-1, il avise le déclarant des organismes destinataires auxquels le dossier est transmis en l'état ;
2° Pour les demandes d'autorisation visées au 2° du I de l'article R. 123-1, il renvoie le dossier au déclarant et informe ce dernier qu'il lui appartient de saisir directement les autorités habilitées à délivrer ces autorisations.
Article R123-12
A défaut de transmission par le centre de formalités des entreprises à l'expiration des délais prévus aux articles R. 123-10 et R. 123-11, le déclarant peut obtenir la restitution immédiate de son dossier afin d'en saisir directement les organismes destinataires ou, le cas échéant, les autorités habilitées à délivrer les autorisations.
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Article R123-13
Le centre de formalités des entreprises transmet le jour même aux organismes destinataires compétents les notifications et les informations mentionnées à l'article R. 123-1.
Article R123-14
Le centre de formalités des entreprises peut transmettre par voie électronique aux organismes destinataires et aux autorités habilitées à délivrer les autorisations, les informations et pièces les concernant.
Article R123-15
La commission de coordination instituée par l'article R. 123-28 veille au respect de la confidentialité et de la sécurité des échanges, ainsi qu'à la compatibilité des systèmes de communication par voie électronique.
Article R123-16
I.-Dans les cas prévus à l'article L. 123-9-1 et à l'article 19-1 de la loi n° 96-603 du 5 juillet 1996 relative au développement et à la promotion du commerce et de l'artisanat, le récépissé prévu au a du 1° de l'article R. 123-10 prend, lorsque le dossier est réputé complet par le centre compétent, le nom de récépissé de dépôt de dossier de création d'entreprise. Délivré gratuitement et sans délai, ce récépissé est valable jusqu'à la notification au déclarant de son immatriculation et, au plus tard, jusqu'à l'expiration d'une durée d'un mois à compter de sa délivrance. Il indique :
1° Le nom et l'adresse du centre ;
2° La date de saisine du centre ;
3° La date de délivrance du récépissé et la date d'expiration de sa validité ;
4° La mention : " en attente d'immatriculation " ;
5° Les mentions prévues aux a, b et c du 1° du I de l'article R. 123-8 ;
6° Les organismes auxquels le dossier est transmis le jour même ;
7° Le numéro unique d'identification de l'entreprise.
Le centre de formalités des entreprises indique sur le récépissé de dépôt de dossier de création d'entreprise le numéro unique d'identification que l'INSEE lui communique ainsi qu'au greffier du
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tribunal compétent, lorsque la déclaration comporte une demande d'immatriculation au registre du commerce et des sociétés.
Lorsque la déclaration comporte une demande d'immatriculation au registre du commerce et des sociétés, une copie du récépissé de dépôt de dossier de création d'entreprise est transmise au greffier compétent avec le dossier du déclarant.
Dans le cas prévu au deuxième alinéa de l'article R. 123-5, le greffier adresse copie du récépissé de création d'entreprise au centre de formalités des entreprises.
II.-Lorsqu'il est délivré en application de l'article L. 311-2-1 du code rural, le récépissé de dépôt de dossier de création d'entreprise, délivré gratuitement et sans délai, indique :
1° Le nom et l'adresse du centre ;
2° La date de saisine du centre ;
3° La date de délivrance du récépissé ;
4° Les mentions prévues aux a, b et c du 1° du I de l'article R. 123-8 ;
5° Les organismes auxquels le dossier est transmis le jour même ;
6° La mention : " en attente d'immatriculation ", lorsque la demande concerne une société.
Article R123-17
La déclaration présentée ou transmise au centre de formalités des entreprises compétent vaut déclaration auprès de l'organisme destinataire, dès lors qu'elle est régulière et complète à l'égard de ce dernier. Elle interrompt les délais à l'égard de cet organisme.
Article R123-18
Les organismes destinataires des déclarations et des demandes d'autorisation sont seuls compétents pour en contrôler la régularité ou en apprécier la validité. Leur transmission à ces organismes dessaisit le centre en ce qui concerne les formalités à accomplir.
Article R123-19
Le centre ne peut conserver au-delà des délais nécessaires à la transmission prévue à l'article R. 123-18 le support de la déclaration, les renseignements qu'elle contient, les pièces relatives à celle-ci ainsi que, le cas échéant, les pièces relatives aux procédures d'autorisations requises. Toutefois, les renseignements destinés à être portés sur un registre de publicité légale peuvent être conservés par le centre pendant un délai de trois ans.
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Article R123-20
Les dispositions des articles R. 123-1 à R. 123-19 sont applicables à la déclaration d'entreprise par voie électronique, sous réserve des dispositions des articles R. 123-21 à R. 123-27.
Article R123-21
Les centres de formalités des entreprises, les services que les organismes gestionnaires de centres de formalités des entreprises mettent en commun et les greffes en application de l'article R. 123-5 fournissent au déclarant un service informatique accessible par l'internet, sécurisé et gratuit, lui permettant, selon son choix, de :
1° Transmettre un dossier unique tel que défini à l'article R. 123-23 dès lors qu'il respecte les dispositions de l'article R. 123-24 ;
2° Préparer un tel dossier de manière interactive et le transmettre.
La gestion de ce service informatique constitue une mission de service public. Elle peut être assurée par une personne morale publique ou privée regroupant les organismes mentionnés au premier alinéa.
Article R123-22
I.-Lorsque la déclaration appelle inscription au registre du commerce et des sociétés en application de l'article L. 123-1, le service informatique mentionné à l'article R. 123-21 permet, conjointement :
1° Au déclarant de procéder à l'acquittement des frais légaux induits par cette inscription au registre du commerce et des sociétés auprès du greffe ;
2° Au greffe compétent de recevoir, par voie électronique, la partie du dossier unique qui lui est nécessaire pour procéder à cette inscription. Il en accuse réception, par voie électronique, au déclarant ;
3° Au centre de formalités des entreprises de recevoir, par voie électronique, le dossier unique.
II.-Lorsque le déclarant dépose des demandes d'autorisation en application de l'article R. 123-1, le service informatique mentionné à l'article R. 123-21 permet, conjointement : 1° Au déclarant de procéder à l'acquittement éventuel des frais légaux induits par ces demandes ; 2° A chaque autorité habilitée à délivrer une autorisation de recevoir, par voie électronique, la partie du dossier unique qui lui est nécessaire pour procéder à cette délivrance. Elle en accuse réception, par voie électronique, au demandeur ; 3° Au centre de formalités des entreprises de recevoir, par voie
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électronique, le dossier unique.
Article R123-23
Lorsqu'il est établi et transmis par voie électronique aux centres de formalités des entreprises, le dossier mentionné à l'article 2 de la loi n° 94-126 du 11 février 1994 relative à l'initiative et à l'entreprise individuelle comprend les documents suivants :
1° Le formulaire électronique contenant l'ensemble des données déclarées ;
2° Le cas échéant, les demandes d'autorisation mentionnées au 2° du I de l'article R. 123-1 nécessaires à l'exercice de l'activité ;
3° Les pièces numériques ou numérisées exigées, sauf s'il s'agit de pièces devant être fournies en original et établies sur support papier ;
4° Lorsque la déclaration de création ou de modification de situation et, le cas échéant, les demandes d'autorisation donnent lieu à la perception de frais légaux, le justificatif de règlement de ces frais, selon des moyens communiqués au déclarant.
Un arrêté ministériel fixe les caractéristiques électroniques des documents énumérés au présent article.
Article R123-24
Lorsqu'une signature est requise, le recours à une signature électronique sécurisée est exigé dans les conditions prévues à l'article 1316-4 du code civil et au décret n° 2001-272 du 30 mars 2001 pris pour l'application de l'article 1316-4 du code civil et relatif à la signature électronique. Toutefois, pour la transmission par voie électronique des dossiers de création d'entreprise, est autorisé, y compris pour les demandes d'immatriculation au registre du commerce et des sociétés, le recours à une signature électronique présentant les caractéristiques prévues par la première phrase du second alinéa de l'article 1316-4 du code civil.
Article R123-25
Dès réception d'un dossier conforme aux dispositions des articles R. 123-23 et R. 123-24, le centre de formalités des entreprises compétent en accuse réception par voie électronique au déclarant ou à son mandataire.
Lorsqu'il doit déposer des actes authentiques ou actes sous seing privé en original, le déclarant joint à ces pièces une édition de l'accusé de réception électronique prévu à l'alinéa premier.
Le centre de formalités des entreprises est responsable de la transmission aux organismes et administrations destinataires des éléments du dossier de déclaration d'entreprise qu'il a reçus par voie électronique.
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Article R123-26
Lorsque le dossier mentionné à l'article R. 123-21 est réputé complet, la transmission au déclarant ou à son mandataire des récépissés prévus aux articles R. 123-10 et R. 123-16 s'effectue par voie électronique, sauf si le déclarant ou son mandataire en demande la transmission par voie postale.
En cas de transmission électronique, le récépissé prévu à l'article R. 123-16 comporte la signature électronique sécurisée de celui qui l'émet dans les conditions prévues par le décret n° 2001-272 du 30 mars 2001.
Un arrêté ministériel fixe les modalités de délivrance de l'accusé de réception électronique prévu au présent article.
Article R123-27
Si le déclarant utilise un service de conservation provisoire des données proposé par le service de déclaration dans des conditions conformes à la loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés, il est procédé, à l'issue de la période de conservation provisoire d'une durée maximale de douze mois, à l'effacement de toutes les données et de tous les fichiers concernant le déclarant sur les supports informatiques où ils figurent. Le déclarant en est avisé préalablement par voie électronique ou, à défaut, par lettre simple.
Article R123-28
La coordination des centres de formalités des entreprises est assurée par une commission qui veille à l'harmonisation de l'application des dispositions de la présente section.
Cette commission donne son avis sur toutes questions relatives au fonctionnement des centres, dont elle est saisie par ceux-ci ou par les organismes destinataires des formalités. Elle peut se saisir d'office.
Elle fait rapport aux ministres compétents des difficultés ou anomalies dont elle a connaissance. Elle propose les modifications de textes et les réformes de procédure qui en découlent.
La commission comprend un représentant de chacun des ministres assurant la tutelle des centres de formalités des entreprises et des organismes destinataires. La direction chargée de la réforme de l'Etat participe en tant que de besoin aux réunions de la commission de coordination des centres de formalités des entreprises.
Un arrêté du Premier ministre fixe les conditions de fonctionnement de la commission, ainsi que les modalités de publication de ses avis.
Article R123-29
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En cas de difficulté grave de fonctionnement d'un centre, le Premier ministre prend, par arrêté, toutes mesures de nature à assurer la continuité du service.
Article R123-30
Les annexes 1-1 et 1-2 au présent livre précisent les déclarations visées au 1° du I de l'article R. 123-1 devant être déposées aux centres de formalités des entreprises et les administrations, personnes ou organismes destinataires de ces formalités selon leur compétence.
Ces annexes peuvent être complétées par arrêté des ministres chargés de la justice, des transports, des affaires sociales, du travail, de l'économie, de l'industrie, de l'agriculture, du commerce et de l'artisanat, de la réforme administrative et du budget.
Section 1 : Du registre du commerce et des sociétés
Sous-section 1 : Des personnes tenues à l'immatriculation
Paragraphe 1 : De l'obligation d'immatriculation.
Article R123-31
L'immatriculation au registre du commerce et des sociétés a un caractère personnel. Nul ne peut être immatriculé plusieurs fois à un même registre.
Sous-paragraphe 1 : De l'obligation d'immatriculation des personnes physiques.
Article R123-32
Dans le mois qui précède la date déclarée du début de l'activité commerciale et, au plus tard, dans le délai de quinze jours à compter de la date du début de cette activité, toute personne physique ayant la qualité de commerçant demande son immatriculation au greffe du tribunal dans le ressort duquel est situé :
1° Soit son principal établissement ;
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2° Soit, dans les cas prévus aux deuxième et troisième alinéas de l'article L. 123-10, son local d'habitation ;
3° Soit, à défaut d'établissement ou de local d'habitation déclaré dans les cas prévus à l'article L. 123-10, sa commune de rattachement au sens des articles 23 et suivants du décret n° 70-708 du 31 juillet 1970 portant application du titre Ier et de certaines dispositions du titre II de la loi n° 69-3 du 3 janvier 1969 relative à l'exercice des activités ambulantes et au régime applicable aux personnes circulant en France sans domicile ni résidence fixe, ou la commune mentionnée à la dernière phrase du premier alinéa de l'article 2 du même décret.
Article R123-32-1
Les personnes physiques dispensées, en application de l'article L. 123-1-1, de l'obligation d'immatriculation au registre du commerce et des sociétés peuvent néanmoins, à tout moment, demander à y être immatriculées. Les personnes qui cessent de remplir les conditions de la dispense doivent demander leur immatriculation dans un délai de deux mois à compter de la date à laquelle elles ont perdu le bénéfice du régime prévu par l'article L. 133-6-8 du code de la sécurité sociale.
Article R123-33
La demande d'immatriculation est faite par le notaire dans le cas prévu à l'article R. 123-89.
Article R123-34
Il n'y a pas lieu à immatriculation distincte de celle de la société en ce qui concerne les associés en nom.
Sous-paragraphe 2 : De l'obligation d'immatriculation des personnes morales.
Article R123-35
Toute personne morale tenue à immatriculation dont le siège est situé dans un département demande cette immatriculation au greffe du tribunal dans le ressort duquel est situé son siège.
Lorsque le siège est situé hors d'un département ou lorsqu'il est situé à l'étranger, l'immatriculation est demandée au greffe du tribunal dans le ressort duquel est ouvert le premier établissement ou dans le ressort duquel est située la commune mentionnée à la dernière phrase du premier alinéa de
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l'article 2 du décret n° 70-708 du 31 juillet 1970 portant application du titre Ier et de certaines dispositions du titre II de la loi n° 69-3 du 3 janvier 1969 relative à l'exercice des activités ambulantes et au régime applicable aux personnes circulant en France sans domicile ni résidence fixe.
Article R123-36
L'immatriculation des sociétés et des groupements d'intérêt économique est demandée sitôt accomplies les formalités de constitution, publicité comprise.
L'immatriculation des autres personnes morales est demandée dans les quinze jours de l'ouverture du siège ou de l'établissement.
Paragraphe 2 : Des déclarations incombant aux personnes tenues à l'immatriculation
Sous-paragraphe 1 : Des déclarations incombant aux personnes physiques
Sous-sous-paragraphe 1 : Des déclarations aux fins d'immatriculation.
Article R123-37
Dans sa demande d'immatriculation, la personne physique déclare :
1° Ses nom, nom d'usage, pseudonyme, prénoms et domicile personnel ;
2° Ses date et lieu de naissance ;
3° Sa nationalité ;
4° Le cas échéant, qu'elle a effectué une déclaration d'insaisissabilité de ses droits sur l'immeuble où est fixée sa résidence principale ou sur tout bien foncier non affecté à son usage professionnel, en application des articles L. 526-1 et suivants, en précisant le lieu de publication de cette déclaration ;
5° Le cas échéant, qu'elle est bénéficiaire d'un contrat d'appui au projet d'entreprise pour la création ou la reprise d'une activité économique conclu dans les conditions prévues au chapitre VII du titre II du présent livre, en précisant la dénomination sociale de la personne morale responsable de l'appui, l'adresse de son siège social ainsi que, si elle est immatriculée dans un registre public, le lieu d'immatriculation et le numéro unique d'identification ;
6° Les nom, nom d'usage, pseudonyme, prénoms, date et lieu de naissance, domicile, lorsqu'il est différent du sien, et nationalité de son conjoint, ou de la personne qui lui est liée par un pacte civil
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de solidarité, qui collabore effectivement à son activité commerciale dans les conditions définies par l'article R. 121-1 ;
7° Les références des immatriculations secondaires éventuellement souscrites et, le cas échéant, des établissements principaux ou secondaires situés et immatriculés dans un autre Etat membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen. En outre, la personne peut déclarer les mentions relatives à l'adresse et à l'activité principale de ces établissements sur présentation des justificatifs définis par l'arrêté prévu à l'article R. 123-166.
La personne physique qui, bénéficiant auparavant de la dispense d'immatriculation prévue à l'article L. 123-1-1, demande son immatriculation en application de l'article R. 123-32-1, déclare, outre les éléments mentionnés aux 1° à 7° du présent article, le numéro unique d'identification mentionné à l'article D. 123-235 qui lui a été attribué lors de sa déclaration d'activité.
Article R123-38
La personne physique déclare, en outre, en ce qui concerne son activité et son établissement :
1° La ou les activités exercées correspondant à la nomenclature d'activités définie par décret, éventuellement précisée par le déclarant ;
2° L'adresse de l'établissement ;
3° A défaut d'établissement, l'adresse de l'entreprise fixée au local d'habitation déclaré au titre de l'article L. 123-10 et, pour les ressortissants de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen non domiciliés en France qui exercent une activité ambulante, la commune où s'exerce le principal de l'activité ;
4° La date de commencement d'activité ;
5° S'il en est utilisé, le nom commercial et l'enseigne ;
6° Qu'il s'agit soit de la création d'un fonds de commerce, soit de l'acquisition d'un fonds existant, soit d'une modification du régime juridique sous lequel il était exploité, ou, à défaut, l'origine de l'activité. Sont indiqués : en cas de reprise, les nom, nom d'usage, pseudonyme et prénoms du précédent exploitant et son numéro unique d'identification ; en cas d'achat, de licitation ou de partage d'un fonds de commerce, le titre et la date du journal d'annonces légales dans lequel a été publiée l'insertion prescrite par l'article L. 141-12 ;
7° En cas de propriété indivise des éléments d'exploitation, les nom, nom d'usage, pseudonyme, prénoms et domicile des personnes physiques ou dénomination sociale et adresse des personnes morales indivisaires ;
8° En cas de location-gérance, les nom, nom d'usage, pseudonyme, prénoms et domicile ou dénomination sociale et adresse du siège du loueur de fonds ; les dates du début et du terme de la location-gérance avec, le cas échéant, l'indication que le contrat est renouvelable par tacite
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reconduction ;
9° Les nom, nom d'usage, pseudonyme, prénoms, date et lieu de naissance, domicile et nationalité des personnes ayant le pouvoir d'engager à titre habituel par leur signature sa responsabilité ;
10° En cas de gérance-mandat : les nom, nom d'usage, prénoms et domicile ou la dénomination sociale et l'adresse du siège social du gérant-mandataire de l'établissement ainsi que les mentions prévues aux 1° et 2° de l'article R. 123-237 ; les nom, nom d'usage, prénoms, domicile ou la dénomination sociale et l'adresse du siège social du mandant ainsi que les mentions prévues aux 1° et 2° de l'article R. 123-237 ; les dates du début et du terme du contrat de gérance-mandat avec, le cas échéant, l'indication que le contrat est renouvelable par tacite reconduction.
Article R123-39
S'il a été arrêté un plan de cession, le cessionnaire déclare que la gestion de l'entreprise cédée lui a été confiée dans l'attente de l'accomplissement des actes nécessaires à la réalisation de la cession. La déclaration comporte la désignation du cédant.
Sous-sous-paragraphe 2 : Des déclarations aux fins d'immatriculation secondaire hors du ressort de l'établissement principal.
Article R123-40
Est un établissement secondaire au sens de la présente section tout établissement permanent, distinct du siège social ou de l'établissement principal et dirigé par la personne tenue à l'immatriculation, un préposé ou une personne ayant le pouvoir de lier des rapports juridiques avec les tiers.
Article R123-41
Tout commerçant immatriculé qui ouvre un établissement secondaire dans le ressort d'un tribunal où il n'est pas immatriculé demande au greffe de ce tribunal, dans le délai d'un mois avant ou après cette ouverture, une immatriculation secondaire.
Article R123-42
Sont déclarés dans la demande d'immatriculation secondaire les renseignements prévus à l'article R. 123-38.
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Cette demande rappelle en outre les nom, nom d'usage, pseudonyme et prénoms du commerçant, ainsi que les renseignements prévus aux 1° et 2° de l'article R. 123-237.
Sous-sous-paragraphe 3 : Des déclarations d'inscription modificative ou complémentaire.
Article R123-43
Tout commerçant immatriculé qui ouvre un établissement secondaire dans le ressort d'un tribunal où il est déjà immatriculé demande au greffe de ce tribunal, dans le délai d'un mois avant ou après cette ouverture, une inscription complémentaire.
Article R123-44
Sont déclarés dans la demande d'inscription complémentaire les renseignements prévus à l'article R. 123-38.
Article R123-45
Toute modification rendant nécessaire une rectification ou une adjonction aux énonciations prévues aux articles R. 123-37, R. 123-38, R. 123-42 et R. 123-44 fait, dans le délai d'un mois, l'objet d'une demande d'inscription modificative.
Sous réserve des dispositions de l'article R. 123-89, cette demande est présentée par le commerçant ou, en cas de décès, par les personnes mentionnées au 6° de l'article R. 123-46.
Article R123-46
Sont soumises à l'obligation prévue à l'article R. 123-45 :
1° Les décisions définitives plaçant un majeur sous tutelle ou sous curatelle au sens de l'article 440 du code civil et celles qui en donnent mainlevée ou qui les rapportent ; lorsqu'il est fait application de cet article, l'obligation de déclaration incombe au tuteur ou au curateur ;
2° La déclaration d'insaisissabilité des droits de la personne physique immatriculée sur l'immeuble où est fixée sa résidence principale ou sur tout bien foncier non affecté à son usage professionnel,
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lorsqu'il est fait application des articles L. 526-1 et suivants ; le cas échéant, la déclaration de remploi des fonds dans les conditions prévues à l'article L. 526-3 ou la renonciation à la déclaration d'insaisissabilité ou de remploi prévue au même article ;
3° La désignation et la cessation de fonctions de la personne ayant le pouvoir d'engager à titre habituel par sa signature la personne immatriculée ;
4° La cessation partielle de l'activité exercée ;
5° La cessation totale d'activité, qu'elle soit temporaire ou définitive, avec possibilité de déclarer le maintien de l'immatriculation pour une période qui, lorsque la cessation est définitive, ne peut dépasser un an ;
6° Le décès de la personne immatriculée avec possibilité de déclarer le maintien provisoire, pendant un délai maximum d'un an, de l'immatriculation, et, si l'exploitation se poursuit, les conditions d'exploitation, nom, nom d'usage, pseudonyme, prénoms, domicile personnel et qualité des héritiers et ayants cause à titre universel, date et lieu de naissance, nationalité et qualité des personnes assurant l'exploitation ; dans ce dernier cas, la déclaration est faite par la ou les personnes poursuivant l'exploitation ;
7° Le renouvellement, limité à une période supplémentaire d'un an, du maintien provisoire de l'immatriculation dans les cas prévus aux 6° et 7°.
Article R123-47
Les dispositions de l'article R. 123-45 ne sont pas applicables :
1° A la mise à jour des références faites, dans l'immatriculation principale, aux immatriculations secondaires : la mention rectificative est dans ce cas effectuée d'office par le greffier de l'immatriculation principale sur notification du greffier de l'immatriculation secondaire ayant procédé à cette dernière ou à sa radiation ;
2° A la mise à jour des renseignements relatifs à la situation personnelle de l'assujetti figurant dans l'immatriculation secondaire : la mention rectificative ou complémentaire est dans ce cas effectuée par le greffier de l'immatriculation secondaire sur notification du greffier ayant procédé à l'inscription modificative correspondante.
Article R123-48
En cas de transfert, dans le ressort d'un autre tribunal, de l'établissement principal ou secondaire, ou de changement, au profit d'une adresse située dans le ressort d'un autre tribunal, de l'adresse de l'entreprise fixée au local d'habitation, déclaré au titre de l'article L. 123-10, les personnes physiques immatriculées demandent, dans le délai d'un mois à compter du transfert ou du changement d'adresse :
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1° Une nouvelle immatriculation dans le ressort de ce tribunal si elles n'y étaient pas déjà immatriculées à titre principal ou secondaire ;
2° Dans le cas contraire, la transformation de leur immatriculation, avec indication en tant que de besoin des renseignements prévus aux articles R. 123-37 et R. 123-38.
Article R123-49
Dans les quinze jours de la nouvelle immatriculation ou de la transformation, celle-ci est notifiée, par le greffier du tribunal dans le ressort duquel est situé le nouvel établissement ou la nouvelle adresse de l'entreprise fixée au local d'habitation, au greffier de l'ancien établissement ou de l'ancienne adresse. Ce dernier procède d'office, dans le dossier en sa possession, soit à la radiation, soit à la mention correspondante. Il notifie l'accomplissement de la formalité à la personne immatriculée et au greffier du nouvel établissement ou de la nouvelle adresse.
En cas de transfert d'un établissement secondaire, le greffier du nouvel établissement ou de la nouvelle adresse procède à la notification prévue au 1° de l'article R. 123-47.
Article R123-50
Lorsque la cessation totale de l'activité commerciale dans le ressort d'un tribunal résulte du transfert de celle-ci dans le ressort d'un autre tribunal, la radiation est effectuée d'office sur notification du greffier ayant procédé à la nouvelle immatriculation.
Sous-sous-paragraphe 4 : De la déclaration aux fins de radiation.
Article R123-51
Tout commerçant immatriculé demande, dans le délai d'un mois avant la cessation totale de son activité commerciale dans le ressort d'un tribunal ou dans le délai d'un mois à compter de celle-ci, sa radiation en indiquant la date de cessation, sauf lorsqu'il est fait usage de la possibilité prévue au 5° de l'article R. 123-46.
Article R123-52
En cas de décès du commerçant, la demande de radiation est présentée par les héritiers ou ayants cause à titre universel de celui-ci, sauf lorsqu'il est fait usage de la possibilité prévue au 6° de
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l'article R. 123-46.
Sous-paragraphe 2 : Des déclarations incombant aux personnes morales
Sous-sous-paragraphe 1 : Des déclarations aux fins d'immatriculation.
Article R123-53
Dans sa demande d'immatriculation, la société déclare, en ce qui concerne la personne morale :
1° Sa raison sociale ou sa dénomination suivie, le cas échéant, de son sigle ;
2° Sa forme juridique en précisant, s'il y a lieu, le fait que la société est constituée d'un associé unique et, le cas échéant, l'indication du statut légal particulier auquel la société est soumise ;
3° Le montant de son capital social ; si le capital est variable, le montant au-dessous duquel il ne peut être réduit ;
4° L'adresse de son siège social ;
5° Le cas échéant, que la personne morale, dont le représentant légal a installé le siège social à son domicile, use de la faculté ouverte par les dispositions du deuxième alinéa de l'article L. 123-11-1 ;
6° Ses activités principales ;
7° Sa durée fixée par les statuts ;
8° S'il s'agit d'une société soumise à publicité de ses comptes et bilans annuels, la date de clôture de l'exercice social ;
9° Les références des immatriculations secondaires éventuellement souscrites et, le cas échéant, des établissements principaux ou secondaires situés et immatriculés dans un autre Etat membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen. En outre, la personne morale peut déclarer les mentions relatives à l'adresse et à l'activité principale de ces établissements sur présentation des justificatifs définis par l'arrêté prévu à l'article R. 123-166 ;
10° Le cas échéant, qu'elle est bénéficiaire d'un contrat d'appui au projet d'entreprise pour la création ou la reprise d'une activité économique conclu dans les conditions prévues au chapitre VII
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du titre II du présent livre, en précisant la dénomination sociale de la personne morale responsable de l'appui, l'adresse de son siège social, ainsi que, si elle est immatriculée dans un registre public, le lieu d'immatriculation et le numéro unique d'identification.
Article R123-54
La société déclare en outre :
1° Les nom, nom d'usage, pseudonyme, prénoms et domicile personnel des associés tenus indéfiniment ou tenus indéfiniment et solidairement des dettes sociales, leurs date et lieu de naissance, ainsi que leur nationalité de l'article R. 123-37 ;
2° Les nom, nom d'usage, pseudonyme, prénoms, date et lieu de naissance, domicile personnel et nationalité des :
a) Directeurs généraux, directeurs généraux délégués, membres du directoire, président du directoire ou, le cas échéant, directeur général unique, associés et tiers ayant le pouvoir de diriger, gérer ou engager à titre habituel la société avec l'indication, pour chacun d'eux lorsqu'il s'agit d'une société commerciale, qu'ils engagent seuls ou conjointement la société vis-à-vis des tiers ;
b) Le cas échéant, administrateurs, président du conseil d'administration, président du conseil de surveillance, membres du conseil de surveillance et commissaire aux comptes ;
3° Lorsque les personnes mentionnées aux a et b ci-dessus sont des personnes morales, la dénomination sociale, la forme juridique, l'adresse du siège, le cas échéant leur représentant permanent ainsi que :
a) Pour les personnes morales de droit français immatriculées au registre, les renseignements mentionnés aux 1° et 2° de l'article R. 123-237 ;
b) Pour les sociétés relevant de la législation d'un autre Etat membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen, le numéro et le lieu d'immatriculation dans un registre public ;
c) Pour les personnes morales non immatriculées ou relevant de la législation d'un Etat non membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen, les nom, nom d'usage, pseudonyme, prénoms et domicile des personnes ayant le pouvoir de les diriger, gérer ou engager à titre habituel.
Article R123-55
Le conjoint du gérant associé unique ou du gérant associé majoritaire d'une société à responsabilité limitée ou d'une société d'exercice libéral à responsabilité limitée, ou la personne qui lui est liée par
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un pacte civil de solidarité, fait l'objet d'une mention au registre du commerce et des sociétés dans les conditions définies par le présent livre.
Article R123-56
Sont en outre déclarés dans la demande d'immatriculation :
1° Pour les sociétés résultant d'une fusion ou d'une scission, les raison sociale ou dénomination, forme juridique et siège social de toutes les sociétés y ayant participé, ainsi que, en ce qui concerne chacune d'entre elles, les renseignements prévus aux 1° et 2° de l'article R. 123-237 ;
2° Pour les sociétés européennes issues d'une fusion, les dénomination sociale, forme juridique et siège social de toutes les sociétés y ayant participé, ainsi que, en ce qui concerne chacune d'entre elles, les renseignements prévus aux 1° et 2° de l'article R. 123-237, ou, en ce qui concerne celles ayant leur siège dans un autre Etat membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen, les lieu et numéro de leur immatriculation sur un registre public.
Article R123-57
Lorsqu'une société commerciale dont le siège est situé à l'étranger est soumise à la législation d'un autre Etat membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen et revêt une des formes juridiques dont la liste figure en annexe 1-3 au présent livre, sont seuls déclarés les renseignements prévus aux 1°, 2°, 8° et 9° de l'article R. 123-53 et à l'article R. 123-54, ainsi que le lieu et le numéro d'immatriculation de cette société sur un registre public.
Article R123-58
Lorsqu'une société commerciale dont le siège est à l'étranger n'est pas soumise à la législation d'un Etat membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen, mais revêt une forme juridique comparable à celles énoncées à l'annexe 1-3 au présent livre, sont déclarés, outre les renseignements prévus aux articles R. 123-53 à R. 123-56, la législation qui lui est applicable, ainsi que le lieu et le numéro de son immatriculation sur un registre public si la loi étrangère à laquelle cette société est soumise le prévoit.
Article R123-59
Sont déclarés dans la demande d'immatriculation d'une société, en ce qui concerne son activité et son établissement, ou son siège si elle n'a pas d'établissement :
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1° S'il s'agit d'une société commerciale, les renseignements prévus à l'article R. 123-38 ;
2° S'il s'agit d'une société commerciale dont le siège est à l'étranger au sens de l'article R. 123-57, les renseignements prévus à l'article R. 123-38, à l'exception de ceux prévus aux 4°, 6° et 8° ;
3° S'il s'agit d'une société non commerciale ou d'une société civile, les renseignements prévus à l'article R. 123-38, à l'exception de ceux prévus au 8°.
Article R123-60
Dans sa demande d'immatriculation, le groupement d'intérêt économique déclare :
1° En ce qui concerne la personne :
a) La dénomination du groupement, suivie, le cas échéant, de son sigle ;
b) L'adresse du siège ;
c) Ses activités principales et si leur nature est civile ou commerciale ;
d) Sa durée ;
e) Pour chaque personne physique membre du groupement, les renseignements prévus aux 1°, 2° et 3° de l'article R. 123-37 et, le cas échéant, les numéros d'identification de ces personnes avec l'indication du nom du greffe ou de la chambre de métiers et de l'artisanat où elles sont immatriculées, ainsi que l'indication des personnes exonérées des dettes nées antérieurement à leur entrée dans le groupement ;
f) Pour chaque personne morale membre du groupement, les renseignements prévus aux 1°, 2° et 4° de l'article R. 123-53 et, le cas échéant, les numéros d'identification de ces personnes avec l'indication du nom du greffe ou de la chambre de métiers et de l'artisanat où elles sont immatriculées, ainsi que l'indication des personnes exonérées des dettes nées antérieurement à leur entrée dans le groupement ;
g) Pour les administrateurs et les personnes chargées du contrôle de la gestion et du contrôle des comptes, leurs nom, nom d'usage, pseudonyme, prénoms, date et lieu de naissance, domicile personnel et nationalité ;
h) Les références des immatriculations secondaires éventuellement souscrites et, le cas échéant, des établissements principaux ou secondaires situés et immatriculés dans un autre Etat membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen. En outre, la personne morale peut déclarer les mentions relatives à l'adresse et à l'activité principale de ces établissements sur présentation des justificatifs définis par l'arrêté prévu à l'article R. 123-166 ;
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2° En ce qui concerne l'activité et l'établissement, les renseignements prévus à l'article R. 123-38, exception faite de son 8°, s'il s'agit d'un groupement à objet non commercial.
Article R123-61
Dans leur demande d'immatriculation, les établissements publics français à caractère industriel et commercial déclarent :
1° En ce qui concerne la personne :
a) Les renseignements prévus aux 1°, 4° et 6° de l'article R. 123-53 et au 2° de l'article R. 123-54 ;
b) La forme de l'entreprise et la collectivité par laquelle ou pour le compte de laquelle elle est exploitée ;
c) Le cas échéant, la date de publication au Journal officiel de l'acte qui a autorisé sa création, des actes qui ont modifié son organisation et des règlements ou des statuts qui déterminent les conditions de son fonctionnement ;
2° En ce qui concerne l'activité et l'établissement, les renseignements prévus à l'article R. 123-38.
Article R123-62
Les autres personnes morales dont l'immatriculation est prévue par les dispositions du 5° de l'article L. 123-1 déclarent les renseignements prévus aux articles R. 123-54 à R. 123-59. Les renseignements exigés peuvent faire l'objet d'adaptations par arrêté du garde des sceaux, ministre de la justice, du ministre chargé de la propriété industrielle et du ministre chargé du contrôle de la personne morale.
Sous-sous-paragraphe 2 : Des déclarations aux fins d'immatriculation secondaire hors du ressort de l'établissement principal.
Article R123-63
Toute personne morale immatriculée qui ouvre un établissement secondaire demande son immatriculation secondaire dans les conditions prévues à l'article R. 123-41.
Toutefois, cette obligation n'est pas applicable aux personnes morales mentionnées aux 4° et 5° de
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l'article L. 123-1 qui sont désignées par arrêté du garde des sceaux, ministre de la justice, du ministre chargé de la propriété industrielle et du ministre chargé du contrôle de la personne morale.
Article R123-64
Sont déclarés dans la demande d'immatriculation secondaire des personnes morales les renseignements relatifs à l'établissement prévus à l'article R. 123-38, exception faite de ceux prévus au 8° pour les personnes morales à objet non commercial.
Article R123-65
La demande d'immatriculation secondaire rappelle les renseignements mentionnés aux 1° et 2° de l'article R. 123-237, ainsi que :
1° Pour les sociétés, les renseignements prévus aux 1°, 2° et 4° de l'article R. 123-53 ;
2° Pour les groupements d'intérêt économique, les renseignements prévus aux b et c du 1° de l'article R. 123-60 ;
3° Pour les autres personnes morales, les renseignements prévus aux 1° et 4° de l'article R. 123-53 et au b du 1° de l'article R. 123-61.
Sous-sous-paragraphe 3 : Des déclarations aux fins d'inscriptions modificatives et complémentaires.
Article R123-66
Toute personne morale immatriculée demande une inscription modificative dans le mois de tout fait ou acte rendant nécessaire la rectification ou le complément des énonciations prévues aux articles R. 123-53 et suivants.
Article R123-67
Toute personne morale immatriculée qui ouvre un établissement secondaire demande son inscription complémentaire dans les conditions prévues à l'article R. 123-41.
Toutefois, cette obligation n'est pas applicable aux personnes morales mentionnées aux 4° et 5° de
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l'article L. 123-1 qui sont désignées par arrêté du garde des sceaux, ministre de la justice, du ministre chargé de la propriété industrielle et du ministre chargé du contrôle de la personne morale.
Article R123-68
Sont déclarés dans la demande d'inscription complémentaire des personnes morales les renseignements relatifs à l'établissement prévus à l'article R. 123-38, exception faite de ceux prévus au 8° pour les personnes morales à objet non commercial, et à l'article R. 123-39.
Article R123-69
L'obligation prévue à l'article R. 123-66 inclut :
1° La cessation totale ou partielle d'activité dans le ressort du tribunal de l'immatriculation principale, même en l'absence de dissolution ;
2° La cessation totale ou partielle d'activité d'un établissement dans le ressort du tribunal d'une immatriculation secondaire ;
3° En cas de fusion ou de scission de société, l'indication de la cause de dissolution ou d'augmentation de capital, ainsi que celle de la raison sociale ou dénomination, de la forme juridique et du siège des personnes morales ayant participé à l'opération ;
4° Les décisions définitives plaçant l'une des personnes mentionnées aux 1° et 2° de l'article R. 123-54 sous tutelle ou sous curatelle au sens de l'article 440 du code civil, et celles qui en donnent mainlevée ou qui les rapportent ; lorsqu'il est fait application de cet article, l'obligation de déclaration incombe au tuteur ou au curateur.
Article R123-70
L'obligation prévue à l'article R. 123-66 inclut également la dissolution ou la décision prononçant la nullité de la personne morale pour quelque cause que ce soit avec indication des nom, nom d'usage, pseudonyme, prénoms et domicile des liquidateurs, de l'étendue des pouvoirs de ceux-ci s'il s'agit d'une des sociétés mentionnées aux articles R. 123-53 à R. 123-58, et de la référence du journal d'annonces légales dans lequel leur nomination a été publiée ainsi que de l'adresse de la liquidation.
Article R123-71
Les dispositions de l'article R. 123-66 ne sont pas applicables :
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1° A la mise à jour des références faites, dans l'immatriculation principale, aux immatriculations secondaires : la mention rectificative est dans ce cas effectuée d'office par le greffier de l'immatriculation principale sur notification du greffier de l'immatriculation secondaire ayant procédé à cette dernière ou à sa radiation ;
2° A la mise à jour des renseignements relatifs à la situation personnelle de l'assujetti figurant dans l'immatriculation secondaire : la mention rectificative ou complémentaire est, dans ce cas, effectuée par le greffier de l'immatriculation secondaire sur notification du greffier ayant procédé à l'inscription modificative correspondante.
Article R123-72
En cas de transfert de leur siège, de leur établissement principal ou d'un établissement secondaire dans le ressort d'un autre tribunal, les personnes morales immatriculées demandent, dans le délai d'un mois à compter du transfert :
1° Une nouvelle immatriculation dans le ressort de ce tribunal si elles n'y étaient pas déjà immatriculées à titre principal ou secondaire ;
2° Dans le cas contraire, la transformation de leur immatriculation, avec indication en tant que de besoin des renseignements prévus selon le cas aux articles R. 123-53 à R. 123-61.
Article R123-73
Le greffier du nouveau siège ou du nouvel établissement notifie la nouvelle immatriculation ou la transformation prévue à l'article R. 123-72, dans les quinze jours de celle-ci, au greffier de l'ancien siège ou de l'ancien établissement.
Ce dernier procède d'office, dans le dossier en sa possession, soit à la radiation, soit à la mention correspondante selon le cas.
Il notifie l'accomplissement de la formalité à la personne concernée et au greffier du nouveau siège ou du nouvel établissement.
En cas de transfert d'un établissement secondaire, le greffier du nouvel établissement procède à la notification prévue au 1° de l'article R. 123-71.
Article R123-74
En cas de transfert en France du siège d'une société européenne immatriculée dans un autre Etat membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen, les
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dispositions de l'article R. 123-72 s'appliquent.
Le greffier dans le ressort duquel le siège a été transféré notifie la nouvelle immatriculation, dans les quinze jours de celle-ci, à l'autorité chargée de l'immatriculation dans l'Etat où elle avait son siège.
Article R123-74-1
Le greffier du tribunal dans le ressort duquel est immatriculée la société issue de la fusion transfrontalière notifie sans délai la prise d'effet de la fusion au greffier ou à l'autorité compétente du siège de chaque société ayant participé à l'opération.
Le greffier de chaque tribunal dans le ressort duquel est immatriculée une société ayant participé à la fusion et dont le siège était situé en France procède à la radiation de son immatriculation dès réception de la notification de la prise d'effet de la fusion transfrontalière dans l'Etat membre considéré.
Sous-sous-paragraphe 4 : Des déclarations aux fins de radiation.
Article R123-75
La radiation de l'immatriculation principale des personnes morales qui font l'objet d'une dissolution est requise par le liquidateur dans le délai d'un mois à compter de la publication de la clôture de la liquidation.
La radiation de l'immatriculation principale des autres personnes morales est demandée dans le mois de la cessation d'activité dans le ressort du tribunal.
La radiation de l'immatriculation secondaire de toute personne morale est demandée dans le mois de la cessation d'activité dans le ressort du tribunal.
En cas d'application des dispositions du troisième alinéa de l'article 1844-5 du code civil, la radiation de l'immatriculation est requise par l'associé unique dans le délai d'un mois à compter de la réalisation du transfert du patrimoine. A l'issue de ce délai, le greffier délivre sur demande un certificat de non-opposition constatant que le tribunal n'a pas été saisi dans ce délai d'une opposition enrôlée.
Sous-sous-paragraphe 5 : De la langue des déclarations.
Article R. 123-75-1
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Lorsque la société a son siège dans l'un des Etats membres de la Communauté européenne ou parties à l'accord sur l'Espace économique européen, les indications relatives :
1° A la nomination, la cessation des fonctions ainsi que l'identité des personnes qui ont le pouvoir d'engager la société à l'égard des tiers et de la représenter en justice ou qui participent à l'administration, à la surveillance ou au contrôle de la société ;
2° Au montant du capital souscrit ;
3° A tout transfert du siège social ;
4° A la dissolution de la société ;
5° A la décision judiciaire prononçant la nullité de la société ;
6° A la nomination et l'identité des liquidateurs ainsi qu'à leurs pouvoirs respectifs ;
7° A la clôture de la liquidation et la radiation du registre,
peuvent, à sa demande, être déclarées au registre dans toute langue officielle de la Communauté. Dans tous les cas, l'une de ces langues doit être le français. Lorsque les déclarations sont également faites dans une autre langue, leur traduction en langue française doit être certifiée conforme par les déclarants. Seule la publicité obligatoire en langue française fait foi. Les tiers peuvent toutefois se prévaloir de la traduction volontairement publiée, à moins que la société ne prouve qu'ils ont eu connaissance de la version publiée obligatoirement en français.
Sous-paragraphe 3 : Des déclarations incombant aux représentations ou agences commerciales des Etats, collectivités ou établissements publics étrangers.
Article R123-76
Les déclarations incombant aux Etats, collectivités ou établissements publics étrangers qui établissent une représentation ou une agence commerciale dans un département français sont soumises aux dispositions des articles R. 123-61 et R. 123-63 à R. 123-75.
Sous-paragraphe 4 : Dispositions communes.
Article R123-77
Une demande d'inscription ou un dépôt d'acte ou de pièce au registre du commerce et des sociétés peut être effectué par la voie électronique dès lors qu'il peut être transmis et reçu par cette voie, à l'exception toutefois du dépôt des actes et pièces dont l'original doit être fourni et qui ont été établis sur support papier. Il peut néanmoins être suppléé, lors de la première immatriculation, à la production de l'original d'actes ou pièces sous seing privé par la remise d'une copie.
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Pour toutes les transmissions par voie électronique mentionnées au premier alinéa, il est fait usage d'une signature électronique sécurisée dans les conditions prévues à l'article 1316-4 du code civil et par le décret n° 2001-272 du 30 mars 2001 pris pour son application. Toutefois, pour les demandes d'immatriculation, cette signature électronique peut résulter de l'usage d'un procédé répondant aux conditions définies à la première phrase du deuxième alinéa de l'article 1316-4 du code civil.
Le greffier accuse réception, selon les modalités fixées par l'arrêté prévu à l'article R. 123-166, de toute transmission qui lui est faite dès que celle-ci lui parvient.
Sous-section 2 : De la tenue du registre et des effets attachés à l'immatriculation
Paragraphe 1 : Dispositions générales.
Article R123-79
Les attributions relatives à la surveillance du registre du commerce et des sociétés et aux contestations afférentes, prévues à l'article L. 123-6, sont exercées, pour les personnes morales n'ayant pas la qualité de commerçant au sens des 2° et 5° du I de l'article L. 123-1, par le président du tribunal de grande instance ou un juge commis à cet effet.
Article R123-80
Un registre national tenu par l'Institut national de la propriété industrielle centralise un second original des registres tenus dans chaque greffe.
Le greffier lui transmet à cet effet un exemplaire des inscriptions effectuées au greffe et des actes et pièces qui y ont été déposés dans les délais et conditions fixés par l'arrêté prévu à l'article R. 123-166.
Article R123-81
Un comité de coordination veille à l'harmonisation de l'application des dispositions législatives et réglementaires applicables en matière de registre du commerce et des sociétés.
Il délivre des avis sur les questions dont il est saisi dans les conditions fixées par l'arrêté prévu à l'article R. 123-166. Il peut en outre, à la demande de l'un de ses membres, délibérer sur toute autre question relative au fonctionnement du registre et à l'application des dispositions législatives et réglementaires ayant des incidences sur ce fonctionnement. Le cas échéant, il peut faire appel à tout
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sachant sur une question particulière. Il fait rapport au ministre compétent des difficultés ou anomalies dont il a connaissance.
Ce comité est présidé par un magistrat de l'ordre judiciaire ; il comprend, outre le directeur des affaires civiles et du sceau et le directeur de l'Institut national de la propriété industrielle ou leurs représentants, deux personnes chargées de la tenue du registre conformément aux articles L. 123-6, R. 123-79 et R. 123-80, dont au moins un greffier de tribunal de commerce, dans des conditions fixées par l'arrêté prévu à l'article R. 123-166. Le comité fixe son règlement intérieur.
Article R123-82
Le registre du commerce et des sociétés comprend :
1° Un fichier alphabétique des personnes immatriculées ;
2° Le dossier individuel constitué par la demande d'immatriculation, complétée, le cas échéant, par les inscriptions subséquentes ;
3° Un dossier annexe où figurent les actes et pièces qui doivent être déposés au registre du commerce et des sociétés, en vertu du présent code et de toutes autres dispositions législatives ou réglementaires.
Article R123-83
Hormis les mentions d'office intervenant au cours des procédures de sauvegarde ou de redressement ou liquidation judiciaires, le greffier qui procède à toute inscription, sur déclaration ou d'office, concernant le début ou la cessation d'activité, les modifications de la situation ou la radiation d'une personne physique ou morale en avise sans délai le centre de formalités des entreprises compétent.
Il avise le même centre de tout refus d'immatriculation ou d'enregistrement de déclarations modificatives.
Paragraphe 2 : Des inscriptions sur déclaration
Sous-paragraphe 1 : De la présentation des déclarations.
Article R123-84
Sous réserve de la procédure prévue aux articles R. 123-1 et suivants, les demandes sont présentées
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en deux exemplaires au greffe du tribunal compétent sur des formulaires définis par l'arrêté prévu à l'article R. 123-166.
Elles sont accompagnées des actes et pièces mentionnés aux articles R. 123-102 à R. 123-110 ainsi que des pièces répondant aux prescriptions de l'article L. 123-2.
La liste des pièces justificatives est fixée par l'arrêté mentionné au premier alinéa.
Toutefois, dispense d'une pièce peut être accordée par le juge, soit définitivement, soit provisoirement. Dans ce dernier cas, il est procédé à la radiation d'office si la pièce n'est pas produite dans le délai imparti.
Article R123-85
Sous réserve des dispositions des articles R. 123-87 à R. 123-91, les demandes d'inscription sont revêtues de la signature de la personne tenue à l'immatriculation ou de son mandataire qui justifie de son identité et, en ce qui concerne le mandataire, d'une procuration signée de la personne tenue à l'immatriculation. La procuration peut être fournie en copie lorsqu'il est recouru à une transmission par voie électronique dans les conditions de l'article R. 123-77.
Cette procuration n'est pas nécessaire lorsqu'il résulte des actes ou pièces déposés à l'appui de la demande que le mandataire dispose du pouvoir d'effectuer la déclaration.
Article R123-86
Toute demande d'inscription complémentaire, d'inscription modificative et de radiation rappelle :
1° Pour les personnes physiques, leurs nom, nom d'usage, pseudonyme, prénoms et date et lieu de naissance, ainsi que les renseignements prévus aux 1° et 2° de l'article R. 123-237 ;
2° Pour les personnes morales, leur raison sociale ou dénomination, leur forme juridique et l'adresse de leur siège ainsi que les renseignements prévus aux 1° et 2° de l'article R. 123-237.
Article R123-87
Les demandes d'inscription modificative et de radiation peuvent être signées par toute personne justifiant y avoir intérêt.
Le greffier en informe la personne immatriculée.
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Article R123-88
La demande d'inscription comme conjoint collaborateur est faite par la personne tenue à l'immatriculation dans les termes prévus au 6° de l'article R. 123-37.
Article R123-89
Le notaire qui rédige un acte comportant, pour les parties intéressées, une incidence quelconque en matière de registre est tenu de procéder aux formalités correspondantes à peine d'une amende civile de 15 à 750 euros prononcée par le tribunal de grande instance, sans préjudice de l'application de sanctions disciplinaires et de l'engagement de sa responsabilité, garantie dans les conditions prévues au chapitre III du décret n° 55-604 du 20 mai 1955 relatif aux officiers publics ou ministériels et à certains auxiliaires de justice.
Article R123-90
Les demandes formées sur le fondement des articles 1426 ou 1429 du code civil sont présentées au greffe par le conjoint demandeur dans le délai de trois jours. Le tribunal saisi de l'une de ces demandes ne peut statuer que s'il est justifié que cette mention a été portée au registre.
Article R123-91
Les demandes d'inscription de la décision rendue par une juridiction d'un Etat membre de la Communauté européenne soumis à l'application du règlement n° 1346/2000 du 29 mai 2000 du Conseil relatif aux procédures d'insolvabilité, ouvrant une procédure d'insolvabilité en application de l'article 3, paragraphe 1, de ce règlement, à l'égard d'une personne physique ou morale, immatriculée au registre du commerce et des sociétés et dont le centre des intérêts principaux ou le domicile est situé dans cet Etat, sont présentées par la personne qui est désignée comme syndic, au sens de ce règlement, et qui justifie de ses pouvoirs.
Sous-paragraphe 2 : Du contrôle et de l'enregistrement des demandes.
Article R123-92
Le dépôt de toute demande d'inscription, qu'elle concerne l'immatriculation, la modification ou la radiation, est mentionné par le greffier dans un registre d'arrivée indiquant la date d'arrivée ou de
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dépôt au greffe, la nature de la demande, les nom, nom d'usage, pseudonyme, prénoms et raison sociale ou dénomination du demandeur.
Mention de la suite donnée y est faite ultérieurement par le greffier.
Article R123-93
Lorsque le dossier de demande d'immatriculation est complet, le greffier, saisi en application du deuxième alinéa de l'article R. 123-5, délivre gratuitement le récépissé de dépôt de dossier de création d'entreprise institué par l'article L. 123-9-1, dans les conditions prévues aux articles R. 123-10 et R. 123-11.
Article R123-94
Le greffier, sous sa responsabilité, s'assure de la régularité de la demande.
Article R123-95
Il vérifie que les énonciations sont conformes aux dispositions législatives et réglementaires, correspondent aux pièces justificatives et actes déposés en annexe et sont compatibles, dans le cas d'une demande de modification ou de radiation, avec l'état du dossier.
Il vérifie en outre que la constitution ou les modifications statutaires des sociétés commerciales sont conformes aux dispositions législatives et réglementaires qui les régissent.
La vérification par le greffier de l'existence des déclaration, autorisation, titre ou diplôme requis par la réglementation applicable pour l'exercice de l'activité n'est effectuée que si les conditions d'exercice doivent être remplies personnellement par la personne tenue à l'immatriculation ou par l'une des personnes mentionnées au registre en application de la présente section.
Article R123-96
Lorsque la réglementation particulière à l'activité exercée prévoit que la déclaration ou la demande d'autorisation est effectuée après l'immatriculation au registre, la pièce justificative est fournie au greffe dans les quinze jours de sa délivrance par l'autorité compétente. Faute pour la personne concernée de respecter ce délai, le greffier procède comme il est dit au deuxième alinéa de l'article R. 123-100.
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Article R123-97
Le greffier procède à l'inscription dans le délai franc d'un jour ouvrable après réception de la demande.
Toutefois, lorsque le dossier est incomplet, il réclame dans ce délai les renseignements ou pièces manquants qui sont fournis dans un délai de quinze jours à compter de cette réclamation. A la réception de ces renseignements ou pièces, le greffier procède à l'immatriculation dans le délai mentionné au premier alinéa.
A défaut de régularisation de la demande dans les conditions indiquées ci-dessus ou lorsque le greffier estime que la demande n'est pas conforme aux dispositions applicables, le greffier prend une décision de refus d'inscription qu'il doit, dans le délai mentionné au premier alinéa, soit remettre au demandeur contre récépissé, soit adresser à celui-ci par lettre recommandée avec demande d'avis de réception. La décision de refus est motivée.
Lorsque la complexité du dossier exige un examen particulier de celui-ci, le greffier avise le déclarant, dans le délai prévu au premier alinéa et par lettre motivée, que l'inscription sera faite ou que la décision de refus d'inscription sera remise ou notifiée au demandeur dans le délai franc de cinq jours ouvrables après réception de la demande.
Les notifications adressées par le greffier mentionnent la possibilité pour le demandeur de former les recours prévus, selon les cas, par les articles R. 123-139 à R. 123-142 et R. 123-143 à R. 123-149 et en précisent les modalités.
Faute par le greffier de respecter les délais qui lui sont impartis par le présent article, le demandeur peut saisir le juge commis à la surveillance du registre.
Article R123-98
Le greffier mentionne l'inscription dans un registre chronologique indiquant dans l'ordre ses date et numéro d'ordre, nom, prénom, et raison sociale ou dénomination de l'assujetti et la nature de la formalité ; il appose son visa sur chaque exemplaire de la demande et en délivre une copie au demandeur.
Article R123-99
Le numéro d'identité de l'entreprise attribué par l'Institut national de la statistique et des études économiques en application de l'article R. 123-221 est notifié au requérant par le greffe, dans les conditions fixées par l'arrêté prévu à l'article R. 123-166.
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Article R123-100
Le greffier peut, à tout moment, vérifier la permanence de la conformité des inscriptions effectuées aux dispositions mentionnées aux articles R. 123-95 et R. 123-96.
En cas de non-conformité, invitation est faite à la personne immatriculée d'avoir à régulariser son dossier. Faute par celle-ci de déférer à cette invitation dans le délai d'un mois à compter de la date de cette dernière, le greffier saisit le juge commis à la surveillance du registre.
Article R123-101
Toute inscription effectuée par le greffier et entachée d'erreur matérielle peut être rapportée par lui sur ordonnance du juge commis à la surveillance du registre.
Article R123-101-1
Le greffier certifie l'identité des informations enregistrées sur support électronique pour la tenue du registre avec celles reçues conformément aux articles R. 123-92 à R. 123-98.
Un arrêté du garde des sceaux, ministre de la justice, précise les modalités de cette certification.
Paragraphe 3 : Des dépôts en annexe au registre
Sous-paragraphe 1 : Des dépôts incombant aux personnes morales dont le siège est sur le territoire français.
Article R123-102
Tout dépôt d'acte ou pièce en annexe au registre du commerce et des sociétés pour le compte d'une personne morale dont le siège social est situé sur le territoire français est fait au greffe du tribunal dans le ressort duquel est situé le siège social, en deux exemplaires certifiés conformes par le représentant légal ou par toute personne habilitée par les textes régissant la forme de société en cause à effectuer cette certification.
Le dépôt est constaté par un procès-verbal établi par le greffier et donne lieu à la délivrance par celui-ci d'un récépissé indiquant la raison sociale ou la dénomination, l'adresse du siège, pour les sociétés, leur forme, le nombre et la nature des actes et pièces déposés ainsi que la date du dépôt. Si le dépôt est effectué par une personne déjà immatriculée, le procès-verbal mentionne les
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renseignements prévus aux 1° et 2° de l'article R. 123-237.
Sous-sous-paragraphe 1 : Du dépôt des actes constitutifs.
Article R123-103
Les actes constitutifs des personnes morales dont le siège social est situé sur le territoire français sont déposés au plus tard en même temps que la demande d'immatriculation. Ces actes sont :
1° Pour les sociétés ou groupements d'intérêt économique :
a) Deux expéditions des statuts ou du contrat de groupement, s'ils sont établis par acte authentique, ou deux originaux, s'ils sont établis par acte sous seing privé ; celui-ci indique le cas échéant le nom et la résidence du notaire au rang des minutes duquel il a été déposé ;
b) Deux copies des actes de nomination des organes de gestion, d'administration, de direction, de surveillance et de contrôle ;
2° En outre pour les sociétés :
a) Le cas échéant, deux exemplaires du rapport du commissaire aux apports sur l'évaluation des apports en nature ;
b) S'il s'agit d'une société par actions, deux exemplaires du certificat du dépositaire des fonds auquel est jointe la liste des souscripteurs mentionnant le nombre d'actions souscrites et les sommes versées par chacun d'eux ;
c) S'il s'agit d'une société constituée par offre au public, deux copies du procès-verbal des délibérations de l'assemblée générale constitutive.
Lors de la première immatriculation, les statuts établis sous seing privé peuvent être fournis en copie des originaux.
Pour les personnes morales mentionnées au 5° de l'article L. 123-1 qui, en vertu des textes qui les régissent, sont tenues au dépôt de certains actes, une adaptation des règles fixées au présent article est faite par arrêté du garde des sceaux, ministre de la justice, du ministre chargé de la propriété industrielle et du ministre chargé du contrôle de la personne morale.
Article R123-104
Les actes constitutifs des personnes morales non immatriculées ou relevant de la législation d'un
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Etat non membre de la Communauté européenne ou non partie à l'accord sur l'Espace économique européen concernées par le dernier alinéa de l'article R. 123-54 sont déposés au plus tard en même temps que la demande d'immatriculation ou, le cas échéant, d'inscription modificative.
Ces actes sont deux copies des statuts en vigueur au jour du dépôt, traduites le cas échéant en langue française et certifiées conformes par les déposants.
Sous-sous-paragraphe 2 : Du dépôt des actes modificatifs.
Article R123-105
Les actes, délibérations ou décisions modifiant les pièces déposées lors de la constitution sont déposées en double exemplaire dans le délai d'un mois à compter de leur date après, le cas échéant, publication de l'avis prévu à l'article R. 210-9 ou à l'article 24 du décret n° 78-704 du 3 juillet 1978 relatif à l'application de la loi n° 78-9 du 4 janvier 1978 modifiant le titre IX du livre III du code civil.
Y sont joints deux exemplaires mis à jour des statuts ou du contrat de groupement établis sur papier libre et certifiés conformes par le représentant légal ou par toute personne habilitée par les textes régissant la forme de la société en cause à effectuer cette certification.
Le rapport du commissaire à la transformation, ou selon le cas du commissaire aux comptes, relatif à la transformation d'une société en société par actions est déposé huit jours au moins avant la date de l'assemblée appelée à statuer sur la transformation ou, en cas de consultation écrite, huit jours avant la date limite prévue pour la réponse des associés.
Article R123-106
Le dépôt prévu au premier alinéa de l'article R. 123-105 inclut pour les sociétés à responsabilité limitée :
1° En cas d'augmentation ou de réduction du capital social, la copie du procès-verbal de la délibération des associés ;
2° En cas d'augmentation du capital par apports en nature, le rapport des commissaires aux apports ; ce rapport est déposé au moins huit jours avant la date de l'assemblée des associés appelée à décider l'augmentation.
Article R123-107
Le dépôt prévu au premier alinéa de l'article R. 123-105 inclut pour les sociétés par actions et les
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sociétés civiles constituées par offre au public :
1° La copie du procès-verbal de l'assemblée générale des actionnaires ou des associés ayant décidé ou autorisé soit une augmentation, soit une réduction du capital ;
2° La copie de la décision du conseil d'administration, du directoire ou des gérants, selon le cas, de réaliser une augmentation ou une réduction du capital autorisée par l'assemblée générale des actionnaires ou des associés ;
3° En cas d'augmentation du capital par apports en nature, le rapport du commissaire aux apports ; ce rapport est déposé au moins huit jours avant la date de l'assemblée des actionnaires ou associés appelés à décider l'augmentation.
Article R123-108
Le dépôt prévu au premier alinéa de l'article R. 123-105 inclut également pour les seules sociétés par actions :
1° La copie du procès-verbal de l'assemblée générale des actionnaires ayant autorisé l'émission d'obligations avec bon de souscription d'actions, d'obligations convertibles en actions, d'obligations échangeables contre des actions ou de certificats d'investissement ;
2° La copie du procès-verbal de l'assemblée générale des actionnaires instituant un droit de vote double ;
3° La copie du procès-verbal de l'assemblée générale des actionnaires décidant le rachat des parts de fondateurs ou bénéficiaires ou leur conversion en actions et de l'assemblée générale des porteurs de ces parts ayant, le cas échéant, consenti à ce rachat ou à cette conversion.
Article R123-109
Pour les sociétés anonymes à conseil d'administration, l'extrait du procès-verbal contenant la décision du conseil d'administration relative au choix de l'une des deux modalités d'exercice de la direction générale prévues à l'article L. 225-51-1 fait l'objet d'un dépôt conformément aux dispositions de l'article R. 123-105.
Article R123-110
En cas de transfert du siège hors du ressort du tribunal au greffe duquel la personne morale a été immatriculée, deux exemplaires des statuts ou du contrat de groupement sont déposés au greffe du tribunal du nouveau siège dans les conditions et délais prévus aux deux premiers alinéas de l'article
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R. 123-105.
Mention est faite, dans une pièce annexée aux statuts ou au contrat, des sièges antérieurs et des greffes où sont classés, en annexe au registre, les actes mentionnés aux articles R. 123-102 à R. 123-105 avec l'indication de la date du dernier transfert du siège.
Notification du dépôt est faite dans les quinze jours par le greffier du nouveau siège au greffier de l'ancien siège, qui porte une mention correspondante au dossier.
Sous-sous-paragraphe 3 : Du dépôt des documents comptables.
Article R123-111
Les sociétés commerciales sont tenues de déposer en double exemplaire, dans le délai d'un mois à compter de leur approbation par l'assemblée ordinaire, les documents comptables prévus aux articles L. 232-21 à L. 232-23.
Les documents comptables que les autres personnes morales sont tenues de publier en annexe au registre sont déposés en double exemplaire.
Toutefois, le dépôt des documents comptables peut être effectué par voie électronique dans les conditions prévues à l'article 4 de la loi n° 94-126 du 11 février 1994 relative à l'initiative et à l'entreprise individuelle.
Sous-paragraphe 2 : Des dépôts incombant aux sociétés dont le siège est à l'étranger
Sous-sous-paragraphe 1 : Des sociétés ouvrant un premier établissement en France.
Article R123-112
Toute société commerciale dont le siège est situé à l'étranger et qui ouvre en France un premier établissement est tenue de déposer au greffe du tribunal de commerce dans le ressort duquel est situé cet établissement, au plus tard en même temps que la demande d'immatriculation, deux copies de ses statuts en vigueur au jour du dépôt ; elle dépose en outre, chaque année, deux exemplaires des documents comptables qu'elle a établis, fait contrôler et publier dans l'Etat où elle a son siège.
Le dépôt des documents comptables est effectué dans le délai prévu par la législation dont relève le
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siège de la société.
Tous actes ultérieurs modifiant les statuts sont déposés dans les conditions prévues à l'alinéa précédent.
Les pièces déposées sont le cas échéant traduites en langue française et les copies sont certifiées conformes par les déposants.
Article R123-113
Les actes constitutifs des personnes morales non immatriculées ou relevant de la législation d'un Etat non membre de la Communauté européenne ou non partie à l'accord sur l'Espace économique européen concernées par le dernier alinéa de l'article R. 123-54 sont déposés au plus tard en même temps que la demande d'immatriculation ou, le cas échéant, de l'inscription modificative.
Ces actes sont deux copies des statuts en vigueur au jour du dépôt, traduites le cas échéant en langue française et certifiées conformes par les déposants.
Article R123-114
En cas de transfert du premier établissement dans le ressort d'un autre tribunal, les statuts mis à jour sont déposés dans les conditions prévues aux articles R. 123-112 et R. 123-113.
Sous-sous-paragraphe 3 : Des sociétés européennes.
Article R123-118
Outre les obligations prévues par le présent titre, les sociétés européennes doivent déposer, au plus tard dans les quinze jours de leur demande d'immatriculation, les actes et pièces suivants :
1° En cas de constitution par fusion, deux exemplaires du certificat délivré par le notaire chargé du contrôle de légalité en application du deuxième alinéa de l'article L. 229-3 ;
2° En cas de société européenne holding, la copie du projet de constitution et du rapport des commissaires à la constitution mentionnés aux deuxième et troisième alinéas de l'article L. 229-5.
Article R123-119
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En cas de transfert en France du siège d'une société européenne immatriculée dans un autre Etat membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen, les dispositions de l'article R. 123-110 s'appliquent à l'exception du troisième alinéa.
En outre, est déposé au greffe du nouveau siège social, dans les conditions et délais prévus au premier alinéa de l'article R. 123-105, le certificat délivré par le notaire chargé du contrôle de légalité en application du septième alinéa de l'article L. 229-2.
Le greffier du nouveau siège social notifie le dépôt dans les quinze jours à l'autorité chargée du registre public des sociétés dans l'Etat où la société était immatriculée.
Article R123-120
En cas de transfert dans un autre Etat membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen du siège d'une société européenne immatriculée en France, l'article R. 123-110 n'est pas applicable.
Sous-sous-paragraphe 4 : De la langue des dépôts.
Article R123-120-1
Lorsque la société a son siège dans l'un des Etats membres de la Communauté européenne ou parties à l'accord sur l'Espace économique européen, les actes et pièces peuvent, à sa demande, être déposés dans toute langue officielle de la Communauté. Dans tous les cas, l'une de ces langues doit être le français. Lorsque les actes et pièces sont également déposés dans une autre langue, leur traduction en langue française doit être certifiée conforme par les déclarants. Seul le dépôt obligatoire en langue française fait foi. Les tiers peuvent toutefois se prévaloir de la traduction volontairement déposée, à moins que la société ne prouve qu'ils ont eu connaissance de la version obligatoirement déposée en français.
Sous-paragraphe 3 : Dispositions communes.
Article R123-121
Une copie du contrat d'appui au projet d'entreprise pour la création ou la reprise d'une activité économique conclu dans les conditions prévues au chapitre VII du titre II du présent livre est déposée dans les formes prévues à l'article R. 123-102.
Sous-paragraphe 4 : Dispositions propres aux personnes physiques
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Article R123-121-1
Sous sa responsabilité, la personne physique dépose dans les formes prévues à l'article R. 123-102, lors de sa demande d'immatriculation, une attestation de délivrance de l'information donnée à son conjoint commun en biens sur les conséquences des dettes contractées dans l'exercice de sa profession sur les biens communs, établie conformément à un modèle défini par arrêté du garde des sceaux, ministre de la justice.
Paragraphe 4 : Des inscriptions d'office
Sous-paragraphe 1 : Des inscriptions modificatives.
Article R123-122
Sont mentionnées d'office au registre les décisions, intervenues dans les procédures de sauvegarde ou de redressement ou liquidation judiciaires des entreprises ouvertes à compter du 1er janvier 2006 :
1° Ouvrant la procédure de sauvegarde ou de redressement judiciaire avec l'indication du nom des mandataires de justice désignés et, le cas échéant, des pouvoirs conférés à l'administrateur ;
2° Convertissant la procédure de sauvegarde en procédure de redressement judiciaire avec l'indication des pouvoirs conférés à l'administrateur ;
3° Prolongeant la période d'observation ;
4° Modifiant les pouvoirs de l'administrateur ;
5° Ordonnant la cessation partielle de l'activité en application des articles L. 622-10 ou L. 631-15 ;
6° Arrêtant le plan de sauvegarde ou de redressement, avec l'indication du nom du commissaire à l'exécution du plan ;
7° Modifiant le plan de sauvegarde ou de redressement ;
8° Prononçant la résolution du plan de sauvegarde ou de redressement ;
9° Mettant fin à la procédure de sauvegarde ou de redressement judiciaire ou clôturant l'une de ces
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procédures ;
10° Modifiant la date de cessation des paiements ;
11° Ouvrant ou prononçant la liquidation judiciaire, avec l'indication du nom du liquidateur ;
12° Autorisant une poursuite d'activité en liquidation judiciaire, avec, le cas échéant, le nom de l'administrateur désigné ;
13° Appliquant à la procédure les règles de la liquidation judiciaire simplifiée ;
14° Mettant fin à l'application des règles de la liquidation judiciaire simplifiée ;
15° Arrêtant le plan de cession de l'entreprise au cours d'une procédure de redressement ou de liquidation judiciaire ;
16° Modifiant le plan de cession ;
17° Prononçant la résolution du plan de cession ;
18° Prononçant la clôture de la procédure pour extinction du passif ou insuffisance d'actif avec, le cas échéant, l'indication de l'autorisation de la reprise des actions individuelles de tout créancier à l'encontre du débiteur ;
19° Autorisant la reprise des actions individuelles de tout créancier à l'encontre du débiteur postérieurement au jugement prononçant la clôture de la procédure de liquidation judiciaire ;
20° Prononçant la faillite personnelle ou l'interdiction prévue à l'article L. 653-8 avec l'indication de la durée pour laquelle ces mesures ont été prononcées ;
21° Remplaçant les mandataires de justice ;
22° Décidant la reprise de la procédure de liquidation judiciaire.
Article R123-123
Lorsque la juridiction qui a prononcé une des décisions mentionnées à l'article R. 123-122 n'est pas celle dans le ressort de laquelle est tenu le registre où figure l'immatriculation principale, le greffier de la juridiction qui a statué notifie la décision par lettre recommandée dans le délai de trois jours à compter de cette décision au greffier chargé de la tenue du registre. Celui-ci procède à la mention d'office.
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Article R123-124
Sont mentionnés d'office au registre :
1° Les mesures d'incapacité ou d'interdiction d'exercer une activité commerciale ou professionnelle, de gérer, d'administrer ou de diriger une personne morale résultant d'une décision juridictionnelle passée en force de chose jugée ou d'une décision administrative définitive ;
2° Les décisions judiciaires prononçant la dissolution ou la nullité de la personne morale ;
3° Le décès d'une personne immatriculée.
Le greffier est informé par le ministère public ou, le cas échéant, l'autorité administrative des décisions mentionnées aux 1° et 2° ci-dessus. En ce qui concerne le décès d'une personne immatriculée, il en reçoit la preuve par tous moyens.
Article R123-125
Lorsque le greffier est informé qu'une personne immatriculée aurait cessé son activité à l'adresse déclarée, il lui rappelle par lettre recommandée avec demande d'avis de réception, transmise à cette même adresse, ses obligations déclaratives. Si la lettre est retournée avec une mention précisant que la personne ne se trouve plus à l'adresse indiquée, le greffier porte la mention de la cessation d'activité sur le registre.
Lorsque le greffier est informé, en application du 1° de l'article R. 123-168, que la personne domiciliée n'a pas pris connaissance de son courrier depuis trois mois, il envoie au domicile de celle-ci ou de son responsable légal et, le cas échéant, à l'adresse du siège ou de l'établissement une lettre indiquant que, sans nouvelle de sa part, il sera porté mention de sa cessation d'activité sur le registre.
Article R123-126
Lorsque le greffier est informé par une autorité administrative ou judiciaire du changement de l'une des adresses déclarées par la personne immatriculée, il mentionne d'office ces modifications et en avise la personne à la nouvelle adresse.
Le greffier procède de même s'il est informé d'un changement, résultant d'une décision de l'autorité administrative compétente, dans le libellé de l'une des adresses déclarées ; toutefois, il n'est pas, dans ce cas, tenu d'en aviser la personne immatriculée.
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Sous-paragraphe 2 : Des radiations.
Article R123-127
En cas de transfert dans un autre Etat membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen du siège d'une société européenne immatriculée en France, le greffier de l'ancien siège social procède d'office à la radiation, dès la notification de la nouvelle immatriculation par l'autorité chargée de la nouvelle immatriculation dans l'Etat où le siège a été transféré.
Cette radiation est notifiée à l'autorité chargée de la nouvelle immatriculation dans l'Etat où le siège a été transféré.
Article R123-128
Est radié d'office tout commerçant :
1° Frappé d'une interdiction d'exercer une activité commerciale en vertu d'une décision judiciaire passée en force de chose jugée ou d'une décision administrative exécutoire ;
2° Décédé depuis plus d'un an, sauf déclaration faite dans les conditions prévues aux 6° et 7° de l'article R. 123-46. Dans ce dernier cas, la radiation est faite dans le délai d'un an à compter de la mention de la déclaration ou de son renouvellement ; notification en est faite à l'exploitant avec invitation d'avoir à requérir son immatriculation.
Article R123-129
Est radié d'office tout commerçant ou personne morale :
1° A compter de la clôture d'une procédure, soit de faillite, soit de liquidation des biens pour insuffisance d'actif ou dissolution de l'union, soit de liquidation judiciaire pour insuffisance d'actif ;
2° Au terme du délai d'un an après la mention au registre de la cessation totale de son activité, sauf en ce qui concerne les personnes morales pouvant faire l'objet d'une dissolution.
Article R123-130
Lorsque le greffier qui a procédé à l'immatriculation principale d'une personne morale pouvant faire l'objet d'une dissolution constate, au terme d'un délai de deux ans après la mention au registre de la
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cessation totale d'activité de cette personne, l'absence de toute inscription modificative relative à une reprise d'activité, il saisit, après en avoir informé la personne morale par lettre recommandée avec demande d'avis de réception adressée à son siège social, le juge commis à la surveillance du registre, aux fins d'examen de l'opportunité d'une radiation.
Si la radiation est ordonnée par le juge, elle est portée à la connaissance du ministère public.
Article R123-131
Est radiée d'office toute personne morale, après mention au registre de sa dissolution, au terme du délai fixé par les statuts pour la durée de la liquidation ou, à défaut, au terme d'un délai de trois ans après la date de cette mention.
Toutefois, le liquidateur peut demander la prorogation de l'immatriculation par voie d'inscription modificative pour les besoins de la liquidation ; cette prorogation est valable un an sauf renouvellement d'année en année.
Article R123-132
Le greffier qui procède à la radiation d'une immatriculation requiert sans délai :
1° S'il s'agit d'une immatriculation principale, la radiation des immatriculations secondaires correspondantes, sauf en cas de transfert du principal établissement pour les commerçants, du siège ou du premier établissement dans un département pour les personnes morales ;
2° S'il s'agit d'une immatriculation secondaire, la modification des mentions correspondantes portées à l'immatriculation principale.
Article R123-133
Les mentions prévues par le 1° de l'article R. 123-124 sont radiées d'office :
1° Lorsque intervient une décision de réhabilitation, de relevé d'incapacité ou d'amnistie faisant disparaître l'incapacité ou l'interdiction ;
2° Lorsque arrive le terme de l'interdiction fixé par la juridiction en application de l'article L. 653-11 ;
3° Lorsque le dirigeant qui fait l'objet d'une incapacité ou d'une interdiction n'exerce plus ses fonctions.
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Article R123-134
Les radiations prévues aux articles R. 123-132 et R. 123-133 sont également effectuées d'office aux lieux des immatriculations secondaires sur notification par le greffier de l'immatriculation principale ; cette notification est faite dans le délai de quinze jours à compter de la date de la radiation à titre principal.
Article R123-135
Sont radiées d'office les mentions relatives aux décisions mentionnées à l'article R. 123-122 lorsque :
1° Il a été mis fin à une procédure de sauvegarde en application de l'article L. 622-12 ;
2° Il a été mis fin à une procédure de redressement en application de l'article L. 631-16 ;
3° Il a été constaté l'achèvement de l'exécution du plan de sauvegarde ou de redressement en application de l'article L. 626-28.
Article R123-135-1
Sont radiées d'office les mentions relatives aux décisions mentionnées à l'article R. 123-122 lorsqu'il a été constaté l'achèvement de l'exécution du plan de sauvegarde ou de redressement judiciaire.
Article R123-136
Lorsque le greffier a porté au registre une mention de cessation d'activité en application de l'article R. 123-125, il radie d'office la personne qui n'a pas régularisé sa situation, à l'expiration d'un délai de trois mois à compter de l'inscription de cette mention
Article R123-137
Est rapportée par le greffier toute inscription d'office effectuée au vu de renseignements qui se révèlent erronés.
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Article R123-138
Lorsqu'une personne a été radiée d'office en application de la présente section, elle peut, dans un délai de six mois à compter de la radiation et dès lors qu'elle démontre qu'elle a régularisé sa situation, saisir le juge commis à la surveillance du registre aux fins de voir rapporter cette radiation.
Paragraphe 5 : Du contentieux.
Article R123-139
Sous réserve des dispositions des articles R. 123-143 à R. 123-149, toute contestation entre la personne tenue à l'immatriculation et le greffier est portée devant le juge commis à la surveillance du registre, qui statue par ordonnance.
Article R123-140
Les ordonnances rendues par le juge commis à la surveillance du registre sont notifiées à l'assujetti par lettre recommandée avec demande d'avis de réception.
La notification indique la forme et le délai du recours ainsi que les modalités suivant lesquelles il doit être exercé. Mention y est faite des pénalités prévues à l'article L. 123-4.
Le greffier informe en outre par lettre simple la personne tenue à l'immatriculation, à son adresse de correspondance, de la décision rendue et du délai de recours.
Article R123-141
L' appel des ordonnances est formé, instruit et jugé comme en matière gracieuse selon les dispositions des articles 950 à 953 du code de procédure civile. Toutefois, la partie est dispensée du ministère d' avocat ou d' avoué.
Le greffier de la cour d' appel adresse une copie de l' arrêt au greffier chargé de la tenue du registre.
Article R123-142
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Il est déféré à l'ordonnance du juge commis à la surveillance du registre du commerce et des sociétés ou à l'arrêt de la cour d'appel dans le délai de quinze jours à compter de la date à laquelle la décision est devenue définitive.
Lorsque la personne tenue à l'immatriculation ne défère pas à une décision lui enjoignant de procéder à une formalité, le greffier en avise le procureur de la République et lui adresse une expédition de la décision.
La juridiction ayant rendu une décision de radiation peut enjoindre au greffier d'y procéder d'office à l'expiration du délai d'un mois à compter de l'envoi de la lettre recommandée notifiant l'ordonnance ou l'arrêt.
Article R123-143
La décision de refus d'immatriculation ou d'enregistrement de modifications statutaires prise par le greffier en application du deuxième alinéa de l'article R. 123-95 peut être contestée dans le délai de quinze jours à compter de sa notification.
La demande est adressée par lettre recommandée avec demande d'avis de réception au président de la juridiction à laquelle est attaché le greffier qui a refusé l'immatriculation ou l'enregistrement des modifications statutaires. Elle est formée, selon le cas, par les fondateurs et les premiers membres des organes de gestion, d'administration, de direction et de surveillance ou l'un d'entre eux, ou par la société ou son représentant.
Elle est motivée et accompagnée de toutes pièces utiles.
Article R123-144
Le président de la juridiction ou le magistrat délégué à cet effet statue en urgence par ordonnance, au vu de la décision et de tous autres documents utiles.
Toutefois, il a la faculté de renvoyer la demande à une audience du tribunal dont il fixe la date.
Lorsqu'il est fait usage de la faculté mentionnée à l'alinéa précédent, le tribunal statue en urgence après avoir recueilli les observations du demandeur à la contestation ou les lui avoir demandées.
Article R123-145
La décision juridictionnelle est revêtue sur l'expédition de la formule exécutoire.
Elle est notifiée au requérant par lettre recommandée avec demande d'avis de réception.
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Article R123-146
La notification d'une décision juridictionnelle de refus d'immatriculation ou d'enregistrement de modifications statutaires indique la forme et le délai du recours ainsi que les modalités suivant lesquelles il doit être exercé.
Article R123-147
La décision juridictionnelle autorisant l'immatriculation ou l'enregistrement est immédiatement portée à la connaissance du greffe compétent pour y procéder.
Article R123-148
La décision de refus d' immatriculation ou d' enregistrement rendue en première instance est susceptible d' appel par la société, dans les quinze jours de sa notification.
L' appel est formé, instruit et jugé comme en matière gracieuse selon les dispositions des articles 950 à 953 du code de procédure civile. Toutefois, la société appelante est dispensée du ministère d' avocat ou d' avoué.
Article R123-149
Le greffier de la cour d'appel adresse une copie de l'arrêt au greffier chargé de la tenue du registre.
Paragraphe 6 : De la publicité du registre
Sous-paragraphe 1 : De la communication et de l'inscription des actes.
Article R123-150
Les greffiers et l'Institut national de la propriété industrielle sont astreints et seuls habilités à délivrer à toute personne qui en fait la demande des certificats, copies ou extraits des inscriptions portées au registre et actes déposés en annexe, sauf en ce qui concerne les inscriptions radiées et les documents comptables, qui sont communiqués dans des conditions fixées par l'arrêté prévu à l'article R. 123-166.
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Article R123-151
Les demandes présentées aux greffiers ou à l'Institut national de la propriété industrielle peuvent porter :
1° Sur des dossiers individuels ou un ensemble de dossiers ; elles correspondent dans le second cas aux critères de recherche définis par l'arrêté prévu à l'article R. 123-166 ;
2° Sur des inscriptions et des actes déposés, ou sur l'état futur des dossiers ; elles donnent lieu dans le second cas à délivrance de renseignements selon une périodicité définie par l'arrêté précité.
Article R123-152
Les greffiers satisfont aux demandes prévues à l'article R. 123-150 par la délivrance soit de la copie intégrale des inscriptions portées au registre concernant une même personne ou d'un ou plusieurs actes déposés, soit d'un extrait indiquant l'état de l'immatriculation à la date à laquelle cet extrait est délivré, soit d'un certificat attestant qu'une personne n'est pas immatriculée. La copie, l'extrait ou le certificat est établi aux frais du demandeur et fait foi jusqu'à preuve contraire.
Les extraits ou certificats portant la date de leur délivrance et revêtus du nom, de la signature et du sceau du greffier qui les a délivrés ainsi que de la mention du lieu dans lequel ce dernier exerce ses attributions font foi jusqu'à inscription de faux. Toute surcharge, interligne ou addition contenu dans le corps de ces documents est nul.
Article R123-152-1
Les copies, extraits ou certificats peuvent être délivrés par les greffiers par voie électronique dans les conditions prévues à l'article R. 741-5
Article R123-152-2
Les extraits ou certificats mentionnés au dernier alinéa de l'article R. 123-152 sont délivrés par les greffiers sur support électronique dans les conditions suivantes :
1° Ils sont établis au moyen d'un système de traitement, de conservation et de transmission de l'information garantissant l'intégrité de leur contenu et agréé par le Conseil national des greffiers des tribunaux de commerce ;
2° Les systèmes de communication d'informations mis en œuvre par les greffiers doivent être interopérables entre eux ainsi qu'avec les organismes auxquels ils doivent transmettre ces données ;
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3° Les extraits ou certificats sont revêtus de la signature électronique sécurisée du greffier qui les a dressés, telle que définie par le décret n° 2001-272 du 30 mars 2001 pris pour l'application de l'article 1316-4 du code civil et relatif à la signature électronique ;
4° Ils doivent être conservés dans des conditions de nature à en préserver l'intégrité et la lisibilité ;
5° Les greffiers conservent également l'ensemble des informations relatives aux extraits et certificats délivrés, telles que les données permettant de les identifier, de déterminer leurs propriétés et d'en assurer la traçabilité ;
6° Ils tiennent en outre, jour par jour, un répertoire sur support électronique de tous les extraits et certificats qu'ils établissent ;
7° Ce répertoire mentionne la date, la nature, le nom des destinataires des extraits et certificats, le support sur lequel ils ont été établis et toutes autres informations prescrites par les lois et règlements ;
8° L'image du sceau du greffier doit figurer sur les extraits ou certificats délivrés.
Un arrêté du garde des sceaux, ministre de la justice, précise, en tant que de besoin, les modalités d'application du présent article.
Article R123-153
L'Institut national de la propriété industrielle satisfait moyennant le paiement de redevances aux demandes mentionnées à l'article R. 123-150 par certificat, copie ou communication des renseignements figurant au registre national.
Des copies telles que figurant au registre peuvent être diffusées à titre de renseignement par voie électronique.
L'Institut national de la propriété industrielle peut délivrer des certificats attestant qu'au jour de la demande une personne ne figure pas dans les immatriculations portées au registre national.
Article R123-154
Pour les procédures ouvertes à compter du 1er janvier 2006, ne peuvent être communiqués :
1° Les jugements rendus en matière de sauvegarde en cas de clôture de la procédure en application de l'article L. 622-12 et en cas d'exécution du plan constaté en application de l'article L. 626-28 ;
2° Les jugements rendus en matière de redressement judiciaire en cas de clôture de la procédure en
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application de l'article L. 631-16 et en cas d'exécution du plan constaté en application des articles L. 631-21 et L. 626-28 ;
3° Les jugements rendus en matière de liquidation judiciaire en cas de clôture pour extinction du passif ;
4° Les jugements ayant décidé que les dettes de la personne morale seront supportées en tout ou partie par les dirigeants de celle-ci ou certains d'entre eux en application des articles L. 651-2 ou L. 652-1, en cas de paiement par ceux-ci du passif mis à leur charge ;
5° Les jugements prononçant la faillite personnelle ou l'interdiction prévue à l'article L. 653-8 en cas de clôture pour extinction du passif, relèvement total des déchéances ou amnistie.
Sous-paragraphe 2 : De la publication au Bulletin officiel des annonces civiles et commerciales.
Article R123-155
Toute immatriculation donne lieu à l'insertion d'un avis au Bulletin officiel des annonces civiles et commerciales.
Toutefois, l'insertion d'un avis n'est pas requise en cas d'immatriculation d'une société à responsabilité limitée dont l'associé unique, personne physique, assume personnellement la gérance ou d'une société par actions simplifiées dont l'associé unique, personne physique, assume personnellement la présidence.
Article R123-156
L'avis au Bulletin officiel des annonces civiles et commerciales contient pour les personnes physiques :
1° Les références de l'immatriculation ;
2° Les nom, nom d'usage, pseudonyme et prénoms de la personne immatriculée ;
3° La ou les activités effectivement exercées, le lieu d'exercice, la date du commencement d'exploitation ;
4° Le nom commercial.
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Article R123-157
L'avis au Bulletin officiel des annonces civiles et commerciales contient pour les sociétés et les groupements d'intérêt économique :
1° Les références de l'immatriculation ;
2° La raison sociale ou la dénomination suivie, le cas échéant, du sigle et du nom commercial ;
3° Le montant du capital et, pour les sociétés à capital variable, le montant au-dessous duquel le capital ne peut être réduit ;
4° L'adresse du siège ;
5° La ou les activités exercées et, le cas échéant, la date du commencement d'activité ;
6° S'il s'agit d'une société, la forme juridique, les nom, nom d'usage, pseudonyme et prénoms des associés tenus indéfiniment et solidairement des dettes sociales, les nom, nom d'usage, pseudonyme et prénoms des associés ou des tiers ayant dans la société la qualité de gérant, administrateur, président du conseil d'administration, directeur général, membre du directoire, membre du conseil de surveillance ou commissaire aux comptes ; les nom, nom d'usage, pseudonyme et prénoms des autres personnes ayant le pouvoir d'engager à titre habituel la société envers les tiers ;
7° S'il s'agit d'un groupement d'intérêt économique, les noms, nom d'usage, pseudonyme et prénoms des administrateurs, des personnes chargées du contrôle de la gestion et de celles chargées du contrôle des comptes, ainsi que, le cas échéant, des membres exonérés des dettes nées antérieurement à leur entrée dans le groupement.
Article R123-158
Pour les autres personnes morales, un arrêté du garde des sceaux, ministre de la justice, du ministre chargé de la propriété industrielle et du ministre chargé du contrôle de la personne morale adapte les indications prévues à l'article R. 123-157.
Article R123-159
Si l'une des mentions prévues aux articles R. 123-156 à R. 123-158 est modifiée, un avis modificatif est inséré au Bulletin officiel des annonces civiles et commerciales.
L'avis contient :
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1° Pour les personnes physiques :
a) Les références de l'immatriculation ;
b) Les nom, nom d'usage, pseudonyme et prénoms de la personne immatriculée ;
c) L'indication des modifications intervenues.
2° Pour les personnes morales :
a) Les références de l'immatriculation ;
b) La raison sociale ou la dénomination suivie, le cas échéant, de son sigle ;
c) S'il s'agit d'une société, la forme juridique ;
d) En cas de fusion ou de scission de société, l'indication de l'opération qui est à l'origine de ces modifications ainsi que celle des raison sociale, dénomination, forme juridique et siège des personnes morales ayant participé à cette opération ;
e) L'indication des modifications intervenues.
Le présent article est applicable à la dissolution et la nullité d'une personne morale. Il n'est pas applicable aux sociétés mentionnées au second alinéa de l'article R. 123-155.
Article R123-160
Toute radiation donne lieu à l'insertion d'un avis au Bulletin officiel des annonces civiles et commerciales.
L'avis contient :
1° Pour les personnes physiques :
a) Les références de l'immatriculation ;
b) Les nom, nom d'usage, pseudonyme et prénoms de la personne immatriculée ;
c) Le lieu de l'exploitation ;
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d) Le nom commercial ;
e) La date de la cessation de l'activité.
2° Pour les personnes morales :
a) Les références de l'immatriculation ;
b) La raison sociale ou la dénomination suivie, le cas échéant, de son sigle ;
c) S'il s'agit d'une société la forme juridique ;
d) L'adresse du siège.
Article R123-161
Les avis prévus aux articles R. 123-155 et suivants sont établis et adressés par le greffier au Bulletin officiel des annonces civiles et commerciales dans les huit jours de l'inscription correspondante ou, s'il s'agit d'une immatriculation principale, dès la notification du numéro d'identification par l'Institut national de la statistique et des études économiques.
Ces avis sont établis selon un modèle défini par arrêté du garde des sceaux, ministre de la justice.
Article R123-162
Le dépôt des documents comptables prévus au premier alinéa de l'article R. 123-111 donne lieu à l'insertion d'un avis au Bulletin officiel des annonces civiles et commerciales conformément aux dispositions des articles R. 232-19 à R. 232-21.
Paragraphe 7 : Dispositions diverses.
Article R123-163
Les taxes, émoluments et dépens afférents aux formalités effectuées en application de la présente section sont à la charge des requérants.
En sus de leurs émoluments réglementés par les articles R. 743-140 et suivants, les greffiers
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perçoivent, pour le compte de l'Institut national de la propriété industrielle, les taxes instituées en faveur de cet établissement. Ils envoient à l'institut les fonds perçus par eux à ce titre dans les délais fixés par l'arrêté prévu à l'article R. 123-166.
Article R123-164
Lorsque les décisions et les notifications prévues dans les procédures définies aux articles L. 123-3 et R. 123-139 à R. 123-142 donnent lieu à des frais, ceux-ci sont avancés par le greffier.
Le montant en est remboursé par la personne tenue à l'immatriculation lors des opérations de régularisation de sa situation.
Si la personne tenue à l'immatriculation est insolvable, s'il est impossible de la joindre ou s'il n'a pas été déféré à l'injonction du juge commis à la surveillance du registre, le montant des frais avancés par le greffier est remboursé à ce dernier par le Trésor public sur ordonnance du juge commis à la surveillance du registre rendue à la requête du greffier.
Article R123-165
Les frais remboursés au greffier par le Trésor public en vertu du troisième alinéa de l'article R. 123-164 et ceux afférents aux procédures diligentées d'office par le procureur de la République ou le juge commis à la surveillance du registre sont assimilés à ceux qui résultent des poursuites d'office en matière civile au sens du 4° de l'article R. 93 du code de procédure pénale.
Article R123-166
Un arrêté conjoint du garde des sceaux, ministre de la justice, et du ministre chargé de la propriété industrielle détermine les modalités d'application de la présente section. Il précise notamment :
1° Les pièces à fournir à l'appui des demandes aux fins d'immatriculation, d'immatriculation secondaire, d'inscription modificative et de radiation ou de dépôt d'actes de sociétés ;
2° Les pièces justificatives habilitant à séjourner sur le territoire français les personnes qui doivent en justifier et, le cas échéant, les autorisant à exercer l'activité considérée.
Sous-section 3 : De la domiciliation des personnes physiques et morales immatriculées.
Article R123-166-1
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L'agrément prévu à l'article L. 123-11-3 est délivré par le préfet du département où est situé le siège de l'entreprise de domiciliation. A Paris, cet agrément est délivré par le préfet de police.
Article R123-166-2
Le dossier de la demande d'agrément comprend :
1° S'agissant d'une entreprise individuelle, une déclaration indiquant sa dénomination, son activité, son adresse, l'adresse de ses établissements secondaires ainsi que l'état civil, le domicile, la profession et la qualité de son exploitant, accompagnée de la copie d'une pièce d'identité en cours de validité de ce dernier ;
2° S'agissant d'une personne morale, une déclaration indiquant sa raison sociale ou sa dénomination, sa forme juridique, son activité, son siège social, l'adresse de ses établissements secondaires ainsi que l'état civil, le domicile, la profession et la qualité de ses représentants légaux ou statutaires, de ses dirigeants ainsi que des actionnaires ou associés détenant au moins 25 % des voix, des parts ou des droits de vote, accompagnée de la copie d'une pièce d'identité en cours de validité de ces personnes ;
3° Tous justificatifs de ce qu'il est satisfait par l'entreprise de domiciliation et, le cas échéant, par ses établissements secondaires, aux conditions prévues aux 1° et 2° du II de l'article L. 123-11-3 ;
4° Une attestation sur l'honneur de ce qu'il est satisfait aux conditions prévues aux 3°, 4° et 5° du II de l'article L. 123-11-3.
Article R123-166-3
Le préfet saisi d'une demande d'agrément dispose de deux mois pour l'instruire, à compter de sa réception.
Le défaut de réponse du préfet dans le délai mentionné à l'alinéa précédent vaut rejet de la demande.
Lorsque le domiciliataire satisfait aux conditions prévues aux articles L. 123-11-3, L. 123-11-4 et R. 123-166-2, l'agrément est accordé pour une durée de six ans.
Article R123-166-4
Tout changement substantiel dans les indications prévues à l'article R. 123-166-2 doit être déclaré dans un délai de deux mois au préfet qui a délivré l'agrément.
Lorsque l'entreprise de domiciliation crée un ou plusieurs établissements secondaires, elle justifie dans les deux mois auprès du préfet qui l'a agréée de ce que les conditions posées aux 1° et 2° de l'article L. 123-11-3 sont réalisées pour chacun des établissements exploités.
Le préfet délivre, le cas échéant, un nouvel agrément.
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Article R123-166-5
L'agrément peut être suspendu pour une durée de six mois au plus ou retiré par le préfet lorsque l'entreprise de domiciliation ne remplit plus les conditions prévues au II de l'article L. 123-11-3 ou n'a pas effectué la déclaration prévue à l'article R. 123-166-4.
Lorsque l'entreprise de domiciliation fait l'objet d'une procédure devant la Commission nationale des sanctions instituée à l'article L. 561-38 du code monétaire et financier, son agrément peut être suspendu par le préfet, à titre conservatoire, pour une durée de six mois au plus, renouvelable par décision spécialement motivée. La décision de suspension ne peut être prise qu'après que le domiciliataire a été mis en mesure de présenter ses observations. Elle cesse de plein droit de produire des effets dès que la commission a rendu sa décision.
La décision de suspension ou de retrait peut être prise pour un seul établissement.
Article R123-167
Toute personne physique ou morale qui installe le siège de son entreprise dans des locaux qu'elle occupera en commun avec une ou plusieurs entreprises présente à l'appui de sa demande d'immatriculation le contrat de domiciliation conclu à cet effet avec le propriétaire ou le titulaire du bail de ces locaux. Les dispositions du précédent alinéa sont également applicables à toute personne morale dont le siège est situé à l'étranger et qui installe son agence, sa succursale ou sa représentation en France dans des locaux qu'elle occupera en commun avec une ou plusieurs entreprises.
Article R123-168
Le contrat de domiciliation est rédigé par écrit. Il est conclu pour une durée d'au moins trois mois renouvelable par tacite reconduction, sauf préavis de résiliation. Les parties s'engagent à respecter les conditions suivantes :
1° Le domiciliataire doit, durant l'occupation des locaux, être immatriculé au registre du commerce et des sociétés ou au répertoire des métiers ; toutefois, cette condition n'est pas requise si le domiciliataire est une personne morale française de droit public ou une association regroupant des personnes morales françaises de droit public. Le domiciliataire met à la disposition de la personne domiciliée des locaux dotés d'une pièce propre à assurer la confidentialité nécessaire et à permettre une réunion régulière des organes chargés de la direction, de l'administration ou de la surveillance de l'entreprise ainsi que la tenue, la conservation et la consultation des livres, registres et documents prescrits par les lois et règlements.
Le domiciliataire détient, pour chaque personne domiciliée, un dossier contenant les pièces justificatives relatives, s'agissant des personnes physiques, à leur domicile personnel et à leurs coordonnées téléphoniques et, s'agissant des personnes morales, au domicile et aux coordonnées téléphoniques de leur représentant légal. Ce dossier contient également les justificatifs relatifs à chacun des lieux d'activité des entreprises domiciliées et au lieu de conservation des documents comptables lorsqu'ils ne sont pas conservés chez le domiciliataire.
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Il informe le greffier du tribunal, à l'expiration du contrat ou en cas de résiliation anticipée de celui-ci, de la cessation de la domiciliation de l'entreprise dans ses locaux. Lorsque la personne domiciliée dans ses locaux n'a pas pris connaissance de son courrier depuis trois mois, il en informe également le greffier du tribunal de commerce ou la chambre des métiers et de l'artisanat.
Il communique aux huissiers de justice munis d'un titre exécutoire les renseignements propres à permettre de joindre la personne domiciliée.
Il fournit, chaque trimestre, au centre des impôts et aux organismes de recouvrement des cotisations et contributions de sécurité sociale compétents une liste des personnes qui se sont domiciliées dans ses locaux au cours de cette période ou qui ont mis fin à leur domiciliation ainsi que chaque année, avant le 15 janvier, une liste des personnes domiciliées au 1er janvier.
2° La personne domiciliée prend l'engagement d'utiliser effectivement et exclusivement les locaux, soit comme siège de l'entreprise, soit, si le siège est situé à l'étranger, comme agence, succursale ou représentation. Elle se déclare tenue d'informer le domiciliataire de toute modification concernant son activité. Elle prend en outre l'engagement de déclarer, s'agissant d'une personne physique, tout changement de son domicile personnel ou, s'agissant d'une personne morale, tout changement relatif à sa forme juridique et à son objet, ainsi qu'au nom et au domicile personnel des personnes ayant le pouvoir de l'engager à titre habituel. La personne domiciliée donne mandat au domiciliataire qui l'accepte de recevoir en son nom toute notification.
Article R123-169
Le contrat de domiciliation prévu aux articles R. 123-167 et R. 123-168 est mentionné au registre du commerce et des sociétés, avec l'indication du nom ou de la dénomination sociale et des références de l'immatriculation principale sur un registre public de l'entreprise domiciliataire.
Article R123-169-1
Est puni de l'amende prévue pour les contraventions de la 5e classe le fait de ne pas respecter les obligations mentionnées au 1° de l'article R. 123-168.
Est puni de la même peine le fait pour une entreprise exerçant l'activité de domiciliataire de ne pas s'être assurée que la personne domiciliée respecte les obligations mentionnées au 2° de l'article R. 123-168.
Les personnes, physiques ou morales, coupables des contraventions prévues au présent article encourent la peine complémentaire de confiscation de la chose qui a servi ou était destinée à commettre l'infraction ou de la chose qui en est le produit, dans les conditions prévues aux articles 131-21 et 131-48 du code pénal.
Article R123-170
Les sociétés et leurs filiales qui installent leur siège dans le même local dont l'une a la jouissance ne
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sont pas tenues de conclure entre elles un contrat de domiciliation.
Article R123-171
Lorsque la personne morale immatriculée a installé son siège au domicile de son représentant légal en usant de la faculté ouverte par les dispositions des deuxième et quatrième alinéas de l'article L. 123-11-1, le greffier lui adresse trois mois avant l'expiration du délai de cinq ans prévu par cet article une lettre l'invitant à lui communiquer l'adresse de son nouveau siège.
Faute pour l'assujetti d'avoir régularisé sa situation au regard des deuxième et quatrième alinéas de l'article L. 123-11-1 dans le délai imparti, le greffier procède à la radiation.
Sous-section 4 : De la publication d'avis relatifs à la société européenne
Article R123-171-1
L'avis prévu à l'article 14 du règlement (CE) n° 2157/2001 du Conseil relatif au statut de la société européenne (SE) du 8 octobre 2001, en cas d'immatriculation et de radiation d'une société européenne, est établi et adressé, par le greffier qui procède à celles-ci, à l'autorité chargée du Journal officiel des Communautés européennes, au plus tard dans le délai mentionné à l'article R. 123-161.
Cet avis qui comporte les mentions prévues à la deuxième phrase du 1° de l'article 14 de ce règlement est établi selon un modèle défini par arrêté du garde des sceaux, ministre de la justice.
Le cas échéant, le greffier indique que la radiation résulte d'un transfert dans un autre Etat membre du siège d'une société européenne immatriculée en France.
Section 2 : De la comptabilité des commerçants
Sous-section 1 : Des obligations comptables applicables à tous les commerçants
Paragraphe 1 : Des livres, documents et pièces comptables obligatoires.
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Article R123-172
Un document décrivant les procédures et l'organisation comptables est établi par le commerçant dès lors que le document est nécessaire à la compréhension du système de traitement et à la réalisation des contrôles.
Ce document est conservé aussi longtemps qu'est exigée la présentation des documents comptables auxquels il se rapporte.
Article R123-173
Tout commerçant tient obligatoirement un livre-journal, un grand livre et un livre d'inventaire.
Le livre-journal et le livre d'inventaire peuvent, à la demande du commerçant, être cotés et paraphés, dans la forme ordinaire et sans frais, par le greffier du tribunal dans le ressort duquel le commerçant est immatriculé. Chaque livre reçoit un numéro d'identification répertorié par le greffier sur un registre spécial.
Des documents sous forme électronique peuvent tenir lieu de livre-journal et de livre d'inventaire ; dans ce cas, ils sont identifiés, numérotés et datés dès leur établissement par des moyens offrant toute garantie en matière de preuve.
Article R123-174
Les mouvements affectant le patrimoine de l'entreprise sont enregistrés opération par opération et jour par jour pour le livre-journal.
Tout enregistrement comptable précise l'origine, le contenu et l'imputation de chaque donnée ainsi que les références de la pièce justificative qui l'appuie.
Les opérations de même nature, réalisées en un même lieu et au cours d'une même journée, peuvent être récapitulées sur une pièce justificative unique.
Les pièces justificatives sont classées dans un ordre défini au document mentionné à l'article R. 123-172.
Article R123-175
Les écritures du livre-journal sont portées sur le grand livre et ventilées selon le plan comptable.
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Article R123-176
Le livre-journal et le grand livre sont détaillés en autant de journaux auxiliaires et de livres auxiliaires que les besoins du commerce l'exigent.
Les écritures portées sur les journaux et les livres auxiliaires sont centralisées une fois par mois au moins sur le livre-journal et le grand livre.
Article R123-177
L'inventaire est un relevé de tous les éléments d'actif et de passif au regard desquels sont mentionnées la quantité et la valeur de chacun d'eux à la date d'inventaire.
Les données d'inventaire sont regroupées sur le livre d'inventaire et distinguées selon la nature et le mode d'évaluation des éléments qu'elles représentent. Le livre d'inventaire est suffisamment détaillé pour justifier le contenu de chacun des postes du bilan.
Les comptes annuels sont transcrits chaque année sur le livre d'inventaire, sauf lorsqu'ils sont publiés en annexe au registre du commerce et des sociétés conformément à l'article R. 123-111.
Paragraphe 2 : Des méthodes d'évaluation des éléments chiffrés.
Article R123-178
Pour l'application de l'article L. 123-18 :
1° Le coût d'acquisition est égal au prix d'achat majoré des frais accessoires nécessaires à la mise en état d'utilisation du bien ;
2° Le coût de production est égal au coût d'acquisition des matières consommées augmenté des charges directes et d'une fraction des charges indirectes de production : les intérêts des capitaux empruntés pour financer la fabrication d'une immobilisation peuvent être inclus dans le coût de production lorsqu'ils concernent la période de fabrication. En ce qui concerne les éléments de l'actif circulant tel qu'il est défini au 2° de l'article R. 123-182, cette faculté est limitée à ceux dont le cycle de production dépasse nécessairement la durée de l'exercice. La justification et le montant de ces inclusions figurent à l'annexe ;
3° La valeur vénale d'un bien acquis à titre gratuit correspond au prix qui aurait été acquitté dans des conditions normales de marché ;
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4° La valeur actuelle est une valeur d'estimation qui s'apprécie en fonction du marché et de l'utilité du bien pour l'entreprise ;
5° La valeur d'inventaire est égale à la valeur actuelle ; toutefois, lorsque la valeur d'inventaire d'une immobilisation non financière n'est pas jugée notablement inférieure à sa valeur comptable nette, celle-ci est retenue comme valeur d'inventaire.
Paragraphe 3 : Des amortissements et provisions.
Article R123-179
La dépréciation d'une immobilisation est, sous réserve des dispositions du deuxième alinéa, constatée par l'amortissement. Celui-ci consiste à répartir le coût du bien sur sa durée probable d'utilisation selon un plan d'amortissement. Un règlement de l'Autorité des normes comptables peut toutefois prévoir des modalités d'amortissement différentes pour ceux des commerçants qui ne dépassent pas, à la clôture de l'exercice, deux des trois critères fixés par le 2° de l'article R. 123-200.
Toute modification significative des conditions d'utilisation du bien justifie la révision du plan en cours d'exécution.
L'amoindrissement de la valeur d'un élément d'actif résultant de causes dont les effets ne sont pas jugés irréversibles est constaté par une dépréciation.
Les amortissements et les dépréciations sont inscrits distinctement à l'actif en diminution de la valeur des éléments correspondants.
Les risques et charges, nettement précisés quant à leur objet, que des événements survenus ou en cours rendent probables, entraînent la constitution de provisions.
Les dépréciations et provisions sont rapportées au résultat quand les raisons qui les ont motivées ont cessé d'exister. Il ne peut en être de même pour les amortissements que dans des cas exceptionnels exposés dans l'annexe.
Paragraphe 4 : De la constitution des comptes.
Article R123-180
Le classement des éléments du bilan et du compte de résultat ainsi que la liste des informations contenues dans l'annexe peuvent être adaptés par secteurs d'activité après avis de l'Autorité des normes comptables.
Les comptes annuels peuvent être présentés en négligeant les centimes.
Sous-paragraphe 1 : Du bilan.
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Article R123-181
Les éléments du patrimoine de l'entreprise sont classés à l'actif et au passif du bilan suivant leur destination et leur provenance. Les éléments destinés à servir de façon durable à l'activité de l'entreprise constituent l'actif immobilisé. Lorsqu'un élément d'actif ou de passif relève de plusieurs postes du bilan, mention est faite dans l'annexe des postes dans lesquels il ne figure pas.
Article R123-182
L'actif du bilan fait apparaître successivement les éléments suivants :
1° Au titre de l'actif immobilisé : les immobilisations incorporelles, les immobilisations corporelles et les immobilisations financières ;
2° Au titre de l'actif circulant : les stocks et en-cours, les avances et acomptes versés sur commandes, les créances, les valeurs mobilières de placement et les disponibilités ;
3° Les comptes de régularisation ;
4° Les primes de remboursement des obligations et les écarts de conversion.
La contrepartie du capital souscrit non appelé figure distinctement comme premier poste de l'actif.
Article R123-183
Les postes de l'actif distinguent notamment :
1° Parmi les immobilisations incorporelles : les frais d'établissement, les frais de recherche et de développement, les concessions, brevets, licences, marques, procédés, droits et valeurs similaires, le fonds commercial ainsi que les avances et acomptes ;
2° Parmi les immobilisations corporelles : les terrains, les constructions, les installations techniques, matériels et outillages, les avances et acomptes ainsi que les immobilisations corporelles en cours ;
3° Parmi les immobilisations financières : les participations, les créances rattachées à des participations, les autres titres immobilisés et les prêts ;
4° Parmi les stocks et en-cours : les matières premières et autres approvisionnements, les en-cours de production, les produits intermédiaires et finis ainsi que les marchandises ;
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5° Parmi les créances : les créances clients, le capital souscrit, appelé et non versé ;
6° Parmi les valeurs mobilières de placement : les actions que la société a émises et dont elle est propriétaire.
Article R123-184
Constituent des participations les droits dans le capital d'autres personnes morales, matérialisés ou non par des titres, qui, en créant un lien durable avec celles-ci, sont destinés à contribuer à l'activité de la société détentrice.
Article R123-185
Le montant des primes de remboursement d'emprunts est porté à l'actif du bilan au poste à intitulé correspondant. Il est amorti systématiquement sur la durée de l'emprunt selon des modalités indiquées à l'annexe. Les primes afférentes à la fraction d'emprunts remboursée ne peuvent en aucun cas y être maintenues.
Article R123-186
Les dépenses engagées à l'occasion d'opérations qui conditionnent l'existence ou le développement de l'entreprise mais dont le montant ne peut être rapporté à des productions de biens et de services déterminées peuvent figurer à l'actif du bilan au poste " frais d'établissement ".
Les frais de recherche appliquée et de développement peuvent être inscrits à l'actif du bilan, au poste correspondant, à la condition de se rapporter à des projets nettement individualisés, ayant des sérieuses chances de rentabilité commerciale.
Les éléments acquis du fonds de commerce qui ne peuvent figurer à d'autres postes du bilan sont inscrits au poste " fonds commercial ".
Les éléments constitutifs des postes ci-dessus mentionnés sont commentés à l'annexe.
Article R123-187
Les frais d'établissement ainsi que les frais de recherche appliquée et de développement sont amortis selon un plan et dans un délai maximal de cinq ans. A titre exceptionnel et pour des projets particuliers, les frais de recherche appliquée et de développement peuvent être amortis sur une
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période plus longue qui n'excède pas la durée d'utilisation de ces actifs : il en est justifié à l'annexe.
Tant que ces postes ne sont pas apurés, il ne peut être procédé à aucune distribution de dividendes sauf si le montant des réserves libres est au moins égal à celui des frais non amortis.
Article R123-188
Les frais d'exploration minière assimilés à des frais de recherche appliquée et de développement peuvent être inscrits à l'actif du bilan sous ce poste. Le point de départ du plan d'amortissement correspondant peut être différé jusqu'au terme des recherches sous réserve de l'application éventuelle des dispositions de l'article R. 123-179. Dans ce cas, par dérogation aux dispositions du deuxième alinéa de l'article R. 123-187, une société filiale au sens de l'article L. 233-1 peut procéder à une distribution anticipée de dividendes si la société mère gage cette distribution par la constitution des réserves nécessaires.
Article R123-189
Les charges comptabilisées pendant l'exercice qui concernent un exercice ultérieur figurent à l'actif du bilan au poste " Comptes de régularisation ".
Les produits comptabilisés pendant l'exercice qui concernent un exercice ultérieur figurent au passif du bilan au poste " Comptes de régularisation ".
Ces postes font l'objet d'une information explicative à l'annexe.
Les produits à recevoir et les charges à payer, rattachés aux postes de créances et de dettes, sont détaillés à l'annexe.
Article R123-190
Le passif du bilan fait apparaître successivement les éléments suivants : les capitaux propres, les autres fonds propres, les provisions, les dettes, les comptes de régularisation et les écarts de conversion.
Les postes du passif distinguent notamment :
1° Parmi les capitaux propres : le capital, les primes d'émission et primes assimilées, les écarts de réévaluation, le résultat de l'exercice, les subventions d'investissement et les provisions réglementées, ainsi que les réserves en isolant la réserve légale, les réserves statutaires ou contractuelles et les réserves réglementées ;
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2° Parmi les autres fonds propres : le produit des émissions de titres participatifs, les avances conditionnées ;
3° Les provisions ;
4° Parmi les dettes : les emprunts obligataires convertibles, les autres emprunts obligataires, les emprunts et dettes auprès des établissements de crédit, les emprunts et dettes financiers divers, les avances et acomptes reçus sur commandes en cours, les dettes fournisseurs, les dettes fiscales et sociales ainsi que les dettes sur immobilisation.
Article R123-191
Les capitaux propres correspondent à la somme algébrique des apports, des écarts de réévaluation, des bénéfices autres que ceux pour lesquels une décision de distribution est intervenue, des pertes, des subventions d'investissement et des provisions réglementées.
Sous-paragraphe 2 : Du compte de résultat.
Article R123-192
Les produits et les charges de l'exercice sont classés au compte de résultat de manière à faire apparaître par différence les éléments du résultat courant et le résultat exceptionnel dont la réalisation n'est pas liée à l'exploitation courante de l'entreprise.
Article R123-193
Le compte de résultat fait apparaître successivement, outre les variations de stocks :
1° Au titre des charges : les charges d'exploitation, les charges financières, les charges exceptionnelles ainsi que la participation des salariés aux fruits de l'expansion et l'impôt sur le bénéfice ; les postes de charges distinguent notamment :
a) Au titre des charges d'exploitation : les achats de marchandises, les achats de matières premières et autres approvisionnements, les autres achats et charges externes, les impôts, taxes et versements assimilés, à l'exception de l'impôt sur le bénéfice, les rémunérations du personnel et des dirigeants, les charges sociales, les dotations aux amortissements et aux dépréciations et les dotations aux provisions qui se rapportent à l'exploitation ;
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b) Au titre des charges financières : les dotations aux amortissements, aux dépréciations et aux provisions relatives aux éléments financiers, les intérêts et charges assimilées, les différences négatives de change et les moins-values de cession de valeurs mobilières de placement ;
c) Parmi les charges exceptionnelles, celles afférentes aux opérations de toute nature présentant ce caractère, qu'il s'agisse d'opérations de gestion, d'opérations en capital, d'amortissements, de dépréciations ou de provisions ;
2° Au titre des produits : les produits d'exploitation, les produits financiers et les produits exceptionnels ; les postes de produits permettent de distinguer notamment :
a) Au titre des produits d'exploitation : les ventes de marchandises et la production vendue de biens et de services, le montant net du chiffre d'affaires, la production immobilisée, les subventions d'exploitation et les reprises sur dépréciations et provisions qui se rapportent à l'exploitation ;
b) Au titre des produits financiers : les produits des participations, les produits des autres valeurs mobilières et créances de l'actif immobilisé, les autres intérêts et produits assimilés, les reprises sur provisions et dépréciations relatives aux éléments financiers, les différences positives de change et les plus-values de cessions de valeurs mobilières de placement ;
c) Parmi les produits exceptionnels, ceux afférents aux opérations de toute nature présentant ce caractère, qu'il s'agisse d'opérations de gestion, d'opérations en capital ou de dépréciations et de provisions ;
3° Le résultat de l'exercice.
Article R123-194
Le compte de résultat de l'exercice présenté sous forme de liste conformément aux dispositions du deuxième alinéa de l'article L. 123-13 permet également de dégager successivement le résultat d'exploitation, le résultat financier, le résultat courant avant impôt et le résultat exceptionnel.
Sous-paragraphe 3 : De l'annexe.
Article R123-195
Outre les informations obligatoires prévues aux articles L. 123-13 à L. 123-21, L. 232-1 à L. 232-23, R. 123-179 à R. 123-189 du présent code et à l'article R. 313-14 du code monétaire et financier, l'annexe comporte toutes les informations d'importance significative sur la situation patrimoniale et financière et sur le résultat de l'entreprise.
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Article R123-196
Les informations prévues à l'article R. 123-195 portent notamment sur les points suivants :
1° Les modes et méthodes d'évaluation appliqués aux divers postes du bilan et du compte de résultat ;
2° Les méthodes utilisées pour le calcul des amortissements, des dépréciations et des provisions, leur montant par catégories en distinguant ceux qui ont été pratiqués pour l'application de la législation fiscale ;
3° Les circonstances qui empêchent de comparer d'un exercice à l'autre certains postes du bilan et du compte de résultat, et les moyens qui permettent d'en assurer la comparaison ;
4° Les mouvements ayant affecté les divers postes de l'actif immobilisé ;
5° La nature, le montant et le traitement comptable des écarts de conversion en monnaie nationale d'éléments exprimés en monnaie étrangère ;
6° Les méthodes utilisées, en cas de réévaluation, pour le calcul des valeurs retenues, la liste des postes concernés au bilan et au compte de résultat et les montants correspondants, le traitement fiscal de l'écart de réévaluation, les mouvements ayant affecté pendant l'exercice les postes de passif concernés ;
7° Les créances et les dettes classées selon la durée restant à courir jusqu'à leur échéance en distinguant, d'une part, les créances à un an au plus et, d'autre part, les dettes à un an au plus, à plus d'un an et cinq ans au plus et à plus de cinq ans ;
8° L'indication pour chacun des postes relatifs aux dettes de celles garanties par des sûretés réelles ;
9° Le montant des engagements financiers classés par catégories, en distinguant ceux qui concernent les dirigeants, les filiales, les participations et les autres entreprises liées ; une entreprise est considérée comme liée à une autre lorsqu'elle est susceptible d'être incluse par intégration globale dans un même ensemble consolidable.
Article R123-197
Les personnes morales mentionnent en outre dans l'annexe :
1° Pour chaque poste du bilan concernant les éléments fongibles de l'actif circulant, l'indication de la différence entre l'évaluation figurant au bilan et celle qui résulterait des derniers prix du marché
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connus à la clôture des comptes ;
2° La liste des filiales et participations, telles qu'elles sont prévues aux articles L. 233-1 et L. 233-2, avec l'indication pour chacune d'elles de la part de capital détenue directement ou par prête-nom, du montant des capitaux propres et du résultat du dernier exercice clos ; les titres d'une société émettrice représentant moins de 1 % du capital social d'une société détentrice peuvent être regroupés ; si certaines de ces indications sont omises en raison du préjudice grave qui pourrait résulter de leur divulgation, il est fait mention du caractère incomplet des informations figurant sur la liste ;
3° Le nombre et la valeur nominale des actions, parts sociales et autres titres composant le capital social, regroupés par catégorie selon les droits qu'ils confèrent, avec l'indication de ceux qui ont été créés ou remboursés pendant l'exercice ;
4° Les parts bénéficiaires avec l'indication de leur nombre, de leur valeur et des droits qu'elles confèrent ;
5° L'identité de toute société établissant des comptes consolidés dans lesquels les comptes annuels de la société concernée sont inclus suivant la méthode de l'intégration globale ;
6° L'indication de la fraction des immobilisations financières, des créances et des dettes ainsi que des charges et produits financiers concernant les entreprises liées ;
7° Le montant des engagements pris en matière de pensions, compléments de retraite et indemnités assimilées en distinguant, d'une part, ceux qui ont fait l'objet de provisions et, d'autre part, ceux qui ont été contractés au profit de dirigeants ;
8° Le montant des avances et des crédits alloués aux dirigeants sociaux avec l'indication des conditions consenties et des remboursements effectués pendant l'exercice ;
9° La nature et l'objectif commercial des opérations non inscrites au bilan, à condition que les risques ou les avantages résultant de ces opérations soient significatifs et dans la mesure où la divulgation de ces risques ou avantages est nécessaire pour l'appréciation de la situation financière de la société. Un règlement du Comité de la réglementation comptable en fixe les modalités.
Article R123-197-1
Les sociétés anonymes qui adoptent une présentation simplifiée en application de l'article L. 123-16 mentionnent dans l'annexe la liste des transactions effectuées entre, d'une part, la société et ses principaux actionnaires et, d'autre part, la société et les membres de ses organes d'administration et de surveillance, si ces transactions présentent une importance significative et n'ont pas été conclues aux conditions normales du marché. Les modalités d'élaboration de cette liste sont précisées par un règlement du Comité de la réglementation comptable.
Article R123-198
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Les personnes morales ne pouvant adopter une présentation simplifiée de leurs comptes dans les conditions de l'article L. 123-16 et R. 123-200 à R. 123-202 font également figurer dans l'annexe :
1° Le montant des rémunérations allouées au titre de l'exercice aux membres des organes d'administration, de direction et de surveillance à raison de leurs fonctions : ces informations sont données de façon globale pour chaque catégorie ; elles peuvent ne pas être fournies lorsqu'elles permettent d'identifier la situation d'un membre déterminé de ces organes ;
2° Les obligations convertibles, échangeables en titres similaires avec l'indication par catégorie de leur nombre, de leur valeur nominale et des droits qu'ils confèrent ;
3° La ventilation de l'impôt entre la partie imputable aux éléments exceptionnels du résultat et la partie imputable aux autres éléments, avec l'indication de la méthode utilisée ;
4° La ventilation du montant net du chiffre d'affaires par secteur d'activité et par marché géographique ; si certaines de ces indications sont omises en raison du préjudice grave qui pourrait résulter de leur divulgation, il est fait mention du caractère incomplet de cette information ;
5° La ventilation par catégorie de l'effectif moyen, salarié d'une part et mis à disposition de l'entreprise pendant l'exercice d'autre part ; l'effectif employé à temps partiel ou pour une durée inférieure à l'exercice est pris en compte en proportion du temps de travail effectif, par référence à la durée conventionnelle ou légale du travail ;
6° L'indication sommaire de la mesure dans laquelle le résultat de l'exercice a été affecté par l'application des dispositions fiscales énoncées au point 2 ci-dessus et des conséquences qui en résultent sur les postes de capitaux propres ;
7° L'indication des accroissements et des allégements de la dette future d'impôt provenant des décalages dans le temps entre le régime fiscal et le traitement comptable de produits ou de charges et, lorsqu'ils sont d'un montant exceptionnel, de ceux dont la réalisation est éventuelle.
8° Les éléments constitutifs du poste " frais d'établissement " énoncé au premier alinéa de l'article R. 123-186.
9° Le montant total des honoraires des commissaires aux comptes figurant au compte de résultat de l'exercice, en séparant les honoraires facturés au titre du contrôle légal des comptes de ceux facturés au titre des conseils et prestations de services entrant dans les diligences directement liées à la mission de contrôle légal des comptes, telles qu'elles sont définies par les normes d'exercice professionnel mentionnées au II de l'article L. 822-11. Ces informations ne sont pas fournies si la personne morale est incluse dans un périmètre de consolidation et si l'annexe des comptes consolidés les mentionne ;
10° L'impact financier des opérations mentionnées au 9° de l'article R. 123-197 ;
11° La liste des transactions, au sens de l'article R. 123-199-1, effectuées par la société avec des parties liées lorsque ces transactions présentent une importance significative et n'ont pas été conclues aux conditions normales du marché. Cette information n'est pas requise pour les transactions effectuées par la société avec les filiales qu'elle détient en totalité ou entre ses filiales détenues en totalité. Les modalités d'élaboration de cette liste sont précisées par un règlement du Comité de la réglementation comptable.
Article R123-199
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Les éléments chiffrés de l'annexe sont, sauf exception dûment justifiée, déterminés selon les mêmes principes et les mêmes méthodes que pour l'établissement du bilan et du compte de résultat.
Ils concernent l'ensemble des activités de l'entreprise quel que soit le lieu de leur exercice. Ils sont vérifiables par rapprochement avec des documents justificatifs.
Les éléments chiffrés qui figurent déjà au bilan ou au compte de résultat peuvent être omis dans l'annexe.
Article R123-199-1
Les mots : "partie liée” et "transactions entre parties liées” ont le même sens que celui défini par les normes comptables internationales adoptées par le règlement (CE) n° 2238/2004 de la Commission du 29 décembre 2004, notamment la partie de son annexe IAS 24 intitulée "objet des informations relatives aux parties liées”, ainsi que par tout règlement communautaire qui viendrait le modifier.
Paragraphe 5 : De la présentation comptable simplifiée.
Article R123-200
Pour l'application de l'article L. 123-16 relatif à l'adoption d'une présentation simplifiée des comptes annuels :
1° En ce qui concerne le bilan et le compte de résultat établis par les personnes physiques et personnes morales ayant la qualité de commerçant, le total du bilan est fixé à 267 000 euros, le montant net du chiffre d'affaires à 534 000 euros et le nombre moyen de salariés permanents employés au cours de l'exercice à 10 ;
2° En ce qui concerne l'annexe établie par les personnes morales ayant la qualité de commerçant, le total du bilan est fixé à 3 650 000 euros, le montant net du chiffre d'affaires à 7 300 000 euros et le nombre moyen de salariés permanents employés au cours de l'exercice à 50.
Le total du bilan est égal à la somme des montants nets des éléments d'actif.
Le montant net du chiffre d'affaires est égal au montant des ventes de produits et services liés à l'activité courante, diminué des réductions sur ventes, de la taxe sur la valeur ajoutée et des taxes assimilées.
Le nombre moyen de salariés permanents employés au cours de l'exercice est égal à la moyenne arithmétique des effectifs à la fin de chaque trimestre de l'année civile, ou de l'exercice comptable lorsque celui-ci ne coïncide pas avec l'année civile, liés à l'entreprise par un contrat de travail à durée indéterminée.
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Article R123-201
Le bilan simplifié prévu à l'article L. 123-16 fait apparaître successivement les éléments suivants :
1° Au titre de l'actif immobilisé : les immobilisations incorporelles en distinguant le fonds commercial, les immobilisations corporelles et les immobilisations financières ;
2° Au titre de l'actif circulant : les stocks et en-cours, les avances et acomptes versés sur commandes, les créances en distinguant les clients, les valeurs mobilières de placement et les disponibilités ;
3° Les charges constatées d'avance ;
4° Les capitaux propres détaillés comme il est indiqué à l'article R. 123-190, à l'exception des réserves qui peuvent être regroupées ;
5° Les provisions ;
6° Les dettes en distinguant : les emprunts et dettes assimilées, les avances et acomptes sur commandes en cours et les fournisseurs ;
7° Les produits constatés d'avance.
Article R123-202
Le compte de résultat simplifié prévu à l'article L. 123-16 fait apparaître successivement, outre les variations de stocks, les éléments suivants :
1° Les charges d'exploitation en distinguant les achats, les autres charges externes, les impôts, taxes et versements assimilés, à l'exception de l'impôt sur le bénéfice, les rémunérations du personnel et des dirigeants, les charges sociales ainsi que les dotations aux amortissements, aux dépréciations et aux provisions qui se rapportent à l'exploitation ;
2° Les charges financières ;
3° Les charges exceptionnelles ;
4° L'impôt sur le bénéfice ;
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5° Les produits d'exploitation en distinguant les ventes de marchandises, la production vendue et les subventions d'exploitation ;
6° Les produits financiers ;
7° Les produits exceptionnels.
Sous-section 2 : Des obligations comptables applicables à certains commerçants, personnes physiques.
Article R123-203
Par dérogation à l'article R. 123-174, les personnes mentionnées aux articles L. 123-25 et L. 123-28 peuvent procéder à l'enregistrement comptable des encaissements et des paiements en retenant la date de l'opération figurant sur le relevé qui leur est adressé par un établissement de crédit.
Article R123-204
Par dérogation à l'article R. 123-176, les personnes mentionnées aux articles L. 123-25 à L. 123-27 et au 1° de l'article R. 123-200 peuvent centraliser ces écritures tous les trois mois.
Article D123-205-1
Le livre mentionné à l'article L. 123-28 distingue les règlements en espèce des autres règlements et indique les références des pièces justificatives. Le registre mentionné à ce même article présente chronologiquement le détail des achats, en distinguant les règlements en espèces et en indiquant les références des pièces justificatives.
Article R123-207
Les personnes mentionnées aux articles L. 123-25 à L. 123-28 sont dispensées de produire les justificatifs des frais généraux accessoires lorsqu'une telle dispense est accordée en matière fiscale. Elles peuvent, en outre, enregistrer forfaitairement, selon un barème publié chaque année par l'administration fiscale, les frais relatifs aux carburants consommés lors des déplacements professionnels.
Article R123-208
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Par dérogation aux dispositions des 1° à 5° de l'article R. 123-178, les personnes physiques placées sur option ou de plein droit sous le régime réel simplifié d'imposition prévu à l'article 302 septies A bis du code général des impôts peuvent déterminer :
1° La valeur d'inventaire des biens en stocks en pratiquant sur le prix de vente de ces biens à la date du bilan un abattement correspondant à la marge pratiquée par l'entreprise sur chaque catégorie de biens ;
2° La valeur d'inventaire des travaux en cours en retenant le montant des acomptes réclamés avant facturation.
Sous-section 3 : Des activités commerciales et artisanales ambulantes.
Article R123-208-1
I. # Les professions ci-après énoncées demeurent soumises à la réglementation qui leur est applicable :
1° Agents commerciaux mentionnés aux articles L. 134-1 et suivants ;
2° Personnes exerçant l'activité de vendeur-colporteur de presse mentionnée à l'article 22 de la loi n° 91-1 du 3 janvier 1991 tendant au développement de l'emploi par la formation dans les entreprises, l'aide à l'insertion sociale et professionnelle et l'aménagement du temps de travail, pour l'application du troisième plan pour l'emploi ;
3° Personnes qui exercent la profession d'exploitant de taxis prévue par la loi n° 95-66 du 20 janvier 1995 relative à l'accès à l'activité de conducteur ou au transport de marchandises ou de personnes prévues par la loi n° 82-1153 du 30 décembre 1982 d'orientation des transports intérieurs ;
4° Personnes effectuant des opérations de démarchage réglementées par des textes particuliers, notamment par les articles L. 7311-1 et suivants du code du travail relatifs aux voyageurs, représentants et placiers, par les articles L. 341-1 et suivants du code monétaire et financier relatifs au démarchage bancaire ou financier et par les articles L. 135-1 et suivants du code de commerce relatifs aux vendeurs à domicile indépendants ;
II. # Les dispositions de l'article L. 123-29 ne sont pas applicables aux autres professionnels effectuant à titre accessoire dans une ou plusieurs communes limitrophes des tournées de vente de leurs produits ou de prestations de services à partir d'établissements fixes.
Article R123-208-2
Toute personne assujettie à immatriculation au registre du commerce et des sociétés ou à la déclaration prévue à l'article L. 123-1-1 effectue la déclaration prévue à l'article L. 123-29 auprès de
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la chambre de commerce et d'industrie compétente.
Toute personne assujettie à immatriculation au répertoire des métiers ou à la déclaration prévue au V de l'article 19 de la loi n° 96-603 du 5 juillet 1996 relative au développement et à la promotion du commerce et de l'artisanat effectue cette déclaration auprès de la chambre de métiers et de l'artisanat compétente alors même qu'elle serait immatriculée au registre du commerce et des sociétés.
Toute personne exerçant une activité commerciale ou artisanale et qui n'est pas assujettie à immatriculation à un registre de publicité légale ou à la déclaration prévue à l'article L. 123-1-1 ou au V de l'article 19 de la loi n° 96-603 du 5 juillet 1996 précitée effectue cette déclaration auprès de la chambre de commerce et d'industrie ou de la chambre de métiers et de l'artisanat compétente au titre de son activité principale.
Les personnes mentionnées aux trois premiers alinéas adressent leur déclaration au centre de formalités des entreprises de la chambre de commerce et d'industrie ou de la chambre de métiers et de l'artisanat dont dépend soit leur commune de rattachement, soit la commune où se trouve situé leur domicile ou leur résidence dans le cas d'une personne physique, ou leur siège social dans le cas d'une personne morale. Lorsque le domicile, la résidence ou le siège social sont situés dans l'un des Etats membres de la Communauté européenne autre que la France, la déclaration est adressée au centre de formalités des entreprises dont dépend la commune où la personne entend exercer, à titre principal, son activité ou sa profession ambulante. La déclaration peut être effectuée concomitamment au dépôt de la déclaration de création de l'entreprise.
La liste des pièces à produire à l'appui de la déclaration est fixée par arrêté du ministre chargé du commerce.
Article R123-208-3
La déclaration prévue à l'article L. 123-29 est adressée par lettre recommandée avec demande d'avis de réception ou remise contre récépissé.
Si le dossier est incomplet, le centre de formalités des entreprises notifie à l'intéressé la liste des pièces manquantes dans un délai de quinze jours à compter de sa réception.
A compter de la réception du dossier complet de déclaration, une carte dénommée " carte permettant l'exercice d'une activité commerciale ou artisanale ambulante ” est délivrée contre paiement d'une redevance par la chambre de commerce et d'industrie ou la chambre de métiers et de l'artisanat à l'intéressé dans un délai maximum d'un mois, hors le cas où la déclaration est concomitante au dépôt d'une demande de création d'entreprise. Dans ce dernier cas, le délai d'un mois court à compter de l'inscription au registre de publicité légale ou de la délivrance du récépissé de la déclaration prévue à l'article L. 123-1-1 et au V de l'article 19 de la loi n° 96-603 du 5 juillet 1996 relative au développement et à la promotion du commerce et de l'artisanat.
Durant la période d'un mois mentionnée au troisième alinéa et jusqu'à la réception de sa carte par le déclarant, celui-ci peut présenter aux contrôles mentionnés à l'article R. 123-208-5 un certificat provisoire délivré, à sa demande, par la chambre de commerce et d'industrie ou par la chambre de métiers et de l'artisanat. Le montant de la redevance mentionnée au troisième alinéa ne peut excéder le coût moyen de réalisation et de transmission de la carte. Les mentions portées sur cette carte et le montant de la redevance sont fixés par arrêté du ministre chargé du commerce.
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Article R123-208-4
La déclaration prévue à l'article L. 123-29 est renouvelée tous les quatre ans, selon la même procédure que celle prévue à l'article R. 123-208-2. Cependant, en cas de renouvellement de la carte, le délai de délivrance de la nouvelle carte est de quinze jours à compter de la réception du dossier complet de déclaration.
Le titulaire de la carte fait connaître au centre de formalités des entreprises toute déclaration modificative affectant son activité ou son mode d'exercice ou toute radiation d'un registre de publicité légale, aux fins de mise à jour ou de retrait de ladite carte.
Pour obtenir sa radiation du registre du commerce et des sociétés ou du répertoire des métiers, l'intéressé produit ladite carte. Mention de cette radiation, ainsi que de sa date, sont portées sur la carte qui est restituée à l'autorité l'ayant délivrée. En cas de cessation d'une activité soumise à la déclaration mentionnée à l'article L. 123-1-1 ou au V de l'article 19 de la loi n° 96-603 du 5 juillet 1996 relative au développement et à la promotion du commerce et de l'artisanat, ou non assujettie à immatriculation à un registre de publicité légale, la mention de cette cessation, ainsi que de sa date, sont portées sur la carte qui est restituée à l'autorité l'ayant délivrée.
Article R123-208-5
I. # Toute personne souhaitant exercer une activité commerciale ou artisanale ambulante présente à toute réquisition des agents mentionnés à l'article L. 123-30 la carte permettant l'exercice d'une activité commerciale ou artisanale ambulante en cours de validité ainsi qu'un document justifiant de son identité.
II. # Tout préposé, salarié ou personne mentionnés aux articles L. 121-4 ou L. 121-8, exerçant une activité commerciale ou artisanale ambulante pour le compte d'une personne souhaitant exercer ladite activité, présente, à toute réquisition des agents susmentionnés, une copie de la carte de la personne pour le compte de laquelle il exerce cette activité, un document établissant un lien avec le titulaire de ladite carte, ainsi qu'un document justifiant de son identité.
III. # Préalablement à l'occupation temporaire d'un emplacement situé sur un marché ou sous une halle créé en application de l'article L. 2224-18 du code général des collectivités territoriales, les personnes exerçant une activité commerciale ou artisanale ainsi que leurs préposés présentent, à toute réquisition, les documents visés au I ou au II aux agents mentionnés à l'article L. 123-30, ainsi qu'aux agents du gestionnaire délégué du marché, responsables du placement, missionnés à cet effet par le maire de la commune.
Toute copie de la carte est établie et certifiée par son titulaire, sous sa responsabilité.
Article R123-208-6
Les agents mentionnés au 2° de l'article L. 123-30 sont habilités, sur proposition du maire, par arrêté du préfet du département dans lequel se trouve la commune concernée ou, à Paris, par arrêté du préfet de police.
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Ne peuvent être habilités que des fonctionnaires titulaires justifiant d'une expérience professionnelle d'au moins deux ans dans la gestion des marchés ou d'une expérience professionnelle d'au moins trois ans dans des fonctions requérant le niveau de formation et de compétence exigibles pour cette mission de police judiciaire et dont le préfet a vérifié l'honorabilité dans les conditions prévues à l'article 776 du code de procédure pénale.
L'habilitation porte sur le territoire de la commune qui a présenté la demande pour ses agents. Elle cesse en cas de changement de fonction du bénéficiaire.
Avant d'entrer en fonction, les fonctionnaires ainsi habilités prêtent devant le tribunal d'instance de leur commune d'exercice le serment suivant : " Je jure de bien et fidèlement remplir mes fonctions et de ne rien révéler ou utiliser de ce qui sera porté à ma connaissance à l'occasion de leur exercice ”.
Mention de la prestation de serment est portée sur l'acte d'habilitation par le greffier du tribunal d'instance.
Article R123-208-7
En cas de perte ou de vol de la carte, son titulaire sollicite du centre de formalités des entreprises, sur présentation d'une attestation sur l'honneur de perte ou du récépissé de déclaration de vol, la délivrance d'un duplicata.
Article R123-208-8
L'exercice d'une activité commerciale ou artisanale ambulante sans la déclaration préalable prévue à l'article L. 123-29 du code de commerce est puni de l'amende prévue pour les contraventions de 4e classe.
Le défaut de présentation des documents prévus aux I, II et III de l'article R. 123-208-5, ainsi que le défaut de mise à jour de la carte permettant l'exercice d'une activité commerciale ou artisanale ambulante sont punis de l'amende prévue pour les contraventions de 3e classe.
Section 3 : Dispositions diverses
Sous-section 1 : Du Bulletin officiel des annonces civiles et commerciales.
Article R123-209
Il est institué un bulletin annexe au Journal officiel de la République française sous le titre de Bulletin officiel des annonces civiles et commerciales.
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Sont insérés dans ce bulletin les avis prévus par le présent code et par tous autres textes législatifs ou réglementaires.
Article R123-210
L'avis concernant l'immatriculation au registre du commerce et des sociétés contient les indications prévues aux articles R. 123-156 à R. 123-158.
Article R123-211
L'avis concernant une déclaration afférente à la vente, à la cession, à l'apport en société, à l'attribution par partage ou par licitation d'un fonds de commerce contient les indications suivantes :
1° Le nom de l'ancien propriétaire et les références de son immatriculation au registre du commerce et des sociétés ;
2° En ce qui concerne le nouveau propriétaire, les indications exigées aux articles R. 123-156 et suivants ;
3° Le prix stipulé, y compris les charges ou l'évaluation ayant servi de base à la perception des droits d'enregistrement ;
4° Le titre du journal habilité à recevoir les annonces légales dans lequel la première insertion a été effectuée ainsi que la date de cette insertion ;
5° Une élection de domicile dans le ressort du tribunal où est situé l'établissement.
La vente, la cession, l'apport en société, l'attribution par partage ou par licitation d'un fonds de commerce détenu par une personne physique dispensée d'immatriculation font l'objet d'un avis.
Article R123-212
La publication de l'avis prévu à l'article R. 123-211 est requise du greffier par le nouveau propriétaire du fonds de commerce dans les trois jours de la première insertion dans un journal d'annonces légales prévue à l'article L. 141-12.
Lorsque cette publication est requise en même temps que celle de l'avis relatif à l'immatriculation du nouveau propriétaire du fonds de commerce au registre du commerce et des sociétés ou à des inscriptions modificatives de cette immatriculation consécutives à la vente ou à la cession du fonds de commerce, un avis unique est publié. Cet avis comprend l'ensemble des indications que contiennent les avis qu'il remplace.
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Lorsque l'immatriculation au registre est faite postérieurement à la demande de publication de l'avis afférent à la vente ou cession du fonds de commerce, le greffier fait publier l'avis conformément aux articles R. 123-155 et suivants en mentionnant le premier avis.
Article R123-213
L'avis relatif à la nouvelle immatriculation du donataire, du légataire, de l'héritier unique du titulaire d'un fonds de commerce comporte les indications exigées aux articles R. 123-155 et suivants et, en outre, le nom de l'ancien exploitant et son numéro d'immatriculation au registre du commerce et des sociétés.
Article R123-214
L'avis relatif à la nouvelle immatriculation, faisant suite à la mise d'un fonds de commerce ou d'un établissement artisanal en location-gérance comporte les mêmes indications concernant respectivement l'ancien et le nouvel exploitant.
Article R123-215
Dans le cas où l'immatriculation serait requise pour toute autre cause que la création de l'établissement ou le changement de l'exploitant, mention en est faite dans l'avis qui indique la raison de la nouvelle immatriculation ainsi que le numéro antérieur.
Article R123-216
L'avis relatif à une déclaration de radiation comporte les indications exigées à l'article R. 123-160.
Article R123-217
Les inscriptions modificatives ainsi que la dissolution et la décision prononçant la nullité de la personne morale sont publiées dans les conditions prévues à l'article R. 123-159.
Article R123-218
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Les insertions sont faites aux frais du nouvel exploitant du fonds de commerce ou de l'entreprise artisanale, à la diligence et sous la responsabilité du greffier qui reçoit les déclarations.
Article R123-219
Un service gratuit du Bulletin officiel des annonces civiles et commerciales est fait par l'administration des Journaux officiels aux greffes des tribunaux de commerce et des tribunaux de grande instance statuant en matière commerciale.
Sous-section 2 : Du système national d'identification et du répertoire des entreprises et de leurs établissements.
Article R123-220
L'Institut national de la statistique et des études économiques est chargé de tenir un répertoire national des personnes physiques exerçant de manière indépendante une profession non salariée, des personnes morales de droit public ou de droit privé, des institutions et services de l'Etat et des collectivités territoriales, ainsi que de leurs établissements, lorsqu'ils relèvent du registre du commerce et des sociétés, du répertoire des métiers ou qu'ils emploient du personnel salarié, sont soumis à des obligations fiscales ou bénéficient de transferts financiers publics.
Sont également répertoriées les personnes physiques exerçant de manière indépendante une profession non salariée et ayant effectué une déclaration d'activité en application de l'article L. 123-1-1 ou du V de l'article 19 de la loi n° 96-603 du 5 juillet 1996 relative au développement et à la promotion du commerce et de l'artisanat.
Les modalités de leur inscription au répertoire et d'attribution d'un numéro d'identité unique sont définies par arrêté des ministres intéressés.
Article R123-221
Le numéro d'identité attribué à chaque personne inscrite est un numéro d'ordre composé de neuf chiffres.
Le numéro d'identité attribué à chaque établissement est composé des neuf chiffres du numéro de la personne inscrite qui y exerce son activité, suivis d'un numéro complémentaire de deux à cinq chiffres propre à cet établissement.
Article R123-222
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Sont portés au répertoire les renseignements d'identification suivants :
1° Les nom, nom d'usage, prénoms, adresse légale, date et lieu de naissance des personnes physiques ainsi que leur éventuelle cessation d'activité ; les raison ou dénomination sociale, sigle le cas échéant, forme juridique et siège social des personnes morales de droit privé ; les dénomination, sigle le cas échéant, forme juridique et adresse du lieu principal d'activité des personnes morales de droit public et des institutions et services mentionnés à l'article R. 123-220 ;
2° Pour chaque établissement, sa dénomination usuelle, son adresse, et si nécessaire la date et l'origine de sa création ;
3° Dans tous les cas le numéro d'identité.
Article R123-223
Sont également portés au répertoire les renseignements suivants : 1° Les numéros de la nomenclature d'activités française en vigueur caractérisant les activités exercées, approuvée par décret pris après avis de la Commission nationale des nomenclatures économiques et sociales ; 2° Les codes complémentaires précisant les formes particulières d'activités. Ces codes et leurs liens avec la nomenclature d'activités française en vigueur sont fixés par un arrêté du ministre chargé de l'économie ; 3° Le code complémentaire de la nomenclature française du secteur des métiers et de l'artisanat en vigueur, lorsque l'activité exercée en relève. Par dérogation à l'article R. 123-220, ce code est attribué par les chambres des métiers et de l'artisanat ; 4° Les catégories correspondant à l'importance de l'effectif salarié civil total et par établissement ; 5° La mention de la compétence territoriale des personnes morales de droit public et des institutions et services de l'Etat, ainsi que la mention de leurs rapports administratifs avec d'autres personnes ou services inscrits au répertoire.
Article R123-224
L'attribution des numéros d'identité, par l'Institut national de la statistique et des études économiques, aux personnes inscrites et à leurs établissements est effectuée : 1° Soit à l'occasion de la demande d'immatriculation au registre du commerce et des sociétés ou de la déclaration au répertoire des métiers ; 2° Soit à l'occasion de la déclaration d'activité effectuée en application de l'article L. 123-1-1 ou du V de l'article 19 de la loi n° 96-603 du 5 juillet 1996 relative au développement et à la promotion du commerce et de l'artisanat ; 3° Soit à la demande des administrations ou organismes dont la liste est fixée par arrêté du Premier ministre.
Article R123-225
La modification des renseignements d'identification mentionnés au répertoire concernant les personnes inscrites ou leurs établissements est effectuée soit à l'occasion de demandes d'inscription modificatives au registre du commerce et des sociétés ou au répertoire des métiers, soit à la demande des administrations ou organismes mentionnés à l'article R. 123-224, soit à la demande
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des personnes inscrites.
Article R123-226
Lorsque les renseignements d'identification énumérés à l'article R. 123-222 sont fournis, en vertu des articles R. 123-224 et R. 123-225, soit par les administrations ou organismes mentionnés à l'article R. 123-224, soit par les personnes inscrites elles-mêmes, l'Institut national de la statistique et des études économiques vérifie la concordance de ces renseignements avec ceux qui ressortent des demandes d'immatriculation ou d'inscription modificative au registre du commerce et des sociétés ou au répertoire des métiers ; en cas de non-concordance, seuls ces derniers renseignements sont pris en considération au répertoire institué par la présente section.
Lorsque la modification des renseignements d'identification énumérés à l'article R. 123-222 est demandée, en application de l'article R. 123-225, par la personne inscrite elle-même, et que celle-ci n'est pas assujettie à l'immatriculation au registre du commerce et des sociétés ou au répertoire des métiers, l'Institut national de la statistique et des études économiques procède à la modification en accord avec l'administration ou organisme ayant sollicité l'inscription de la personne concernée.
Article R123-227
Sous réserve des articles R. 123-228 à R. 123-230, une personne inscrite est radiée du répertoire et son numéro d'identité est supprimé en cas de dissolution s'il s'agit d'une personne morale, et en cas de décès ou lors de la cessation de toute activité mentionnée à l'article R. 123-220 s'il s'agit d'une personne physique.
Un établissement est radié et son numéro d'identité est supprimé lors de la cessation définitive de l'activité de la personne inscrite dans cet établissement.
Lors de la radiation d'une personne inscrite, ses établissements sont également radiés et leurs numéros d'identité supprimés.
Article R123-228
La radiation des commerçants, personnes physiques ou morales, soumis à l'immatriculation au registre du commerce et des sociétés ne peut intervenir que lorsque la radiation du registre du commerce et des sociétés a été faite.
Article R123-229
Lorsqu'une entreprise au sens des textes qui régissent le répertoire des métiers est soumise à
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l'immatriculation à ce répertoire, la radiation du chef de l'entreprise ne peut intervenir que postérieurement, selon les cas, à la radiation de l'entreprise du répertoire des métiers ou à la radiation de la mention concernant le chef d'entreprise.
Article R123-230
En cas de double immatriculation au registre du commerce et des sociétés et au répertoire des métiers, la radiation ne peut intervenir que postérieurement à la radiation du registre du commerce et des sociétés et du répertoire des métiers.
Article R123-231
Aucun effet juridique ne s'attache à l'identification ou à la non-identification d'une personne inscrite au répertoire. Celle-ci demeure soumise à toute obligation législative, réglementaire ou contractuelle afférente à l'exercice de son activité.
Article R123-232
Sous réserve des dispositions des articles L. 123-1 à L. 123-11-1 et R. 123-31 à R. 123-153, en ce qui concerne le registre du commerce et des sociétés, et de celles du décret n° 98-247 du 2 avril 1998 relatif à la qualification artisanale et au répertoire des métiers, les numéros d'identité au répertoire sont communiqués aux personnes inscrites et à leurs établissements par l'Institut national de la statistique et des études économiques.
Les renseignements contenus dans le répertoire et énumérés aux articles R. 123-222 et R. 123-223 sont communiqués, sur leur demande, aux greffiers des tribunaux de commerce, des tribunaux de grande instance statuant commercialement et des tribunaux d'instance du ressort de la cour d'appel de Colmar chargés de la tenue du registre du commerce et des sociétés, à l'Institut national de la propriété industrielle chargé de la tenue du registre national du commerce et des sociétés, aux chambres de métiers et de l'artisanat, ainsi qu'aux administrations ou organismes prévus à l'article R. 123-224. Les mêmes renseignements sont communiqués aux personnes inscrites, en tant que ces renseignements les concernent.
Les dispositions des deux alinéas précédents sont applicables aux institutions et services définis à l'article R. 123-220 ainsi qu'à leurs établissements.
L'Institut national de la statistique et des études économiques peut communiquer aux personnes ou organismes qui en font la demande les renseignements prévus à l'alinéa précédent, à l'exception de ceux concernant la date et le lieu de naissance des personnes physiques. Un arrêté du Premier ministre précise en tant que de besoin les conditions et limites d'application de la présente disposition.
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Article R123-233
Indépendamment des administrations ou organismes mentionnés à l'article R. 123-224, les administrations publiques sont tenues d'utiliser exclusivement le numéro d'identité au répertoire lors de toute correspondance, si l'objet de cette correspondance nécessite de désigner par des numéros d'immatriculation les personnes inscrites et leurs établissements tels qu'ils sont définis à l'article R. 123-220.
Article R123-234
Conformément à l'article R. 123-220 toute personne physique ou morale, toute institution ou service mentionne dans sa correspondance avec les administrations ou organismes énumérés à l'article R. 123-224, le numéro d'identité dès sa notification et, lorsque la correspondance concerne plus particulièrement un ou plusieurs de ses établissements, le ou les numéros de ces derniers.
Sous-section 3 : Du numéro unique d'identification des entreprises.
Article D123-235
Le numéro unique d'identification qui seul peut être exigé d'une entreprise dans ses relations avec les administrations, personnes ou organismes énumérés à l'article 1er de la loi n° 94-126 du 11 février 1994 relative à l'initiative et à l'entreprise individuelle est le numéro d'identité qui lui est attribué lors de son inscription au répertoire des entreprises et de leurs établissements en application de la sous-section 2.
Article D123-236
Les dispositions de l'article D. 123-235 ne font pas obstacle à ce qu'une entreprise puisse être tenue de porter, en complément du numéro unique d'identification et à titre d'identifiant spécifique :
1° Pour les activités soumises à immatriculation au registre du commerce et des sociétés, les mentions prévues par les articles R. 123-237 et suivants ;
2° Pour les relations avec une administration, personne ou organisme concernant plus particulièrement un des établissements de l'entreprise, le numéro complémentaire attribué à cet établissement dans les conditions prévues à l'article R. 123-221 ;
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3° Pour les activités soumises à l'article 256 A du code général des impôts l'indication du numéro de TVA intracommunautaire, selon les modalités arrêtées par le ministre chargé du budget et par le ministre chargé de la simplification des formalités incombant aux entreprises ;
4° Pour les activités soumises à une inscription à un autre registre ou répertoire que celui du commerce et des sociétés ou à une autorisation ou déclaration préalable, une mention afférente à l'accomplissement de la formalité dans les conditions prévues par un acte réglementaire conjoint du ministre concerné et du ministre chargé de la simplification des formalités incombant aux entreprises, imposant l'accomplissement et la mention de formalités nouvelles ;
5° Une mention afférente à l'accomplissement d'une formalité administrative, lorsque cette obligation résulte d'un arrêté conjoint du ministre concerné et du ministre chargé de la simplification des formalités incombant aux entreprises.
Sous-section 4 : Des mentions sur les papiers d'affaires.
Article R123-237
Toute personne immatriculée indique sur ses factures, notes de commande, tarifs et documents publicitaires ainsi que sur toutes correspondances et tous récépissés concernant son activité et signés par elle ou en son nom :
1° Le numéro unique d'identification de l'entreprise délivré conformément à l'article D. 123-235 ;
2° La mention RCS suivie du nom de la ville où se trouve le greffe où elle est immatriculée ;
3° Le lieu de son siège social ;
4° Le cas échéant, qu'elle est en état de liquidation ;
5° Si elle est une société commerciale dont le siège est à l'étranger, outre les renseignements mentionnés aux 3° et 4°, sa dénomination, sa forme juridique et le numéro d'immatriculation dans l'Etat où elle a son siège, s'il en existe un ;
6° Le cas échéant, la qualité de locataire-gérant ou de gérant-mandataire ;
7° Si elle est bénéficiaire d'un contrat d'appui au projet d'entreprise pour la création ou la reprise d'une activité économique au sens du chapitre VII du titre II du livre Ier du code de commerce, la dénomination sociale de la personne morale responsable de l'appui, le lieu de son siège social, ainsi que son numéro unique d'identification.
Toute personne immatriculée indique en outre sur son site internet la mention RCS suivie du nom de la ville où se trouve le greffe où elle est immatriculée, ainsi que des renseignements mentionnés aux 1°,3° et 5°.
Toute contravention aux dispositions des alinéas précédents est punie de l'amende prévue pour les contraventions de la 4e classe.
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Article R123-237-1
Toute personne qui a déclaré son activité en application de l'article L. 123-1-1 indique sur ses factures, notes de commande, tarifs et documents publicitaires ainsi que sur toutes correspondances et tous récépissés concernant son activité et signés par elle ou en son nom : 1° Le numéro unique d'identification de l'entreprise délivré conformément à l'article D. 123-235, suivi immédiatement et lisiblement des mots : " dispensé d'immatriculation en application de l'article L. 123-1-1 du code de commerce ; 2° Son adresse ; 3° Si elle est bénéficiaire d'un contrat d'appui au projet d'entreprise pour la création ou la reprise d'une activité économique au sens de l'article L. 127-1 du code de commerce, la dénomination sociale de la personne morale responsable de l'appui, le lieu de son siège social, ainsi que son numéro unique d'identification. Toute personne ayant déclaré son activité en application de l'article L. 123-1-1 et disposant d'un site internet y fait figurer les renseignements mentionnés aux 1° et 2°.
Article R123-238
Les actes et documents émanant de la société et destinés aux tiers, notamment les lettres, factures, annonces et publications diverses, indiquent la dénomination sociale, précédée ou suivie immédiatement et lisiblement :
1° Pour les sociétés en nom collectif, des mots " société en nom collectif " ou des initiales " SNC " ;
2° Pour les sociétés en commandite simple, des mots " société en commandite simple " ou des initiales " SCS " ;
3° Pour les sociétés à responsabilité limitée, des mots " société à responsabilité limitée " ou des initiales " SARL " et de l'énonciation du montant du capital social ;
4° Pour les sociétés par action :
a) Selon le cas, des mots :
- " société anonyme " ou des initiales " SA ". En outre, si la société anonyme est dotée d'un directoire et d'un conseil de surveillance, la forme sociale est indiquée par les mots : " société anonyme à directoire et conseil de surveillance " ;
- " société par actions simplifiées " ou des initiales " SAS " ;
- " société en commandite par action " ou des initiales " SCA " ;
- " société européenne " ou des initiales " SE " ;
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b) De l'énonciation du montant du capital social qui peut être arrondi à la valeur entière inférieure. Dans le cas d'augmentation de capital résultant de l'exercice, pouvant avoir lieu à tout moment, des droits attachés à des valeurs mobilières donnant accès au capital, de levées d'option de souscription d'actions possibles à tout moment ou du paiement de dividende en actions, et sauf si l'augmentation du capital dépasse 10 % de son montant antérieur, la société n'est tenue de mentionner le nouveau montant du capital dans les actes et documents énumérés à l'alinéa premier qu'à l'expiration d'un délai de trois ans à compter de la constatation de l'augmentation.
Chapitre IV : Des sociétés coopératives de commerçants détaillants.
Chapitre V : Des magasins collectifs de commerçants indépendants.
Chapitre VI : Des sociétés de caution mutuelle.
Chapitre VII : Du contrat d'appui au projet d'entreprise pour la création ou la reprise d'une activité économique.
Article R127-1
Le contrat d'appui au projet d'entreprise pour la création ou la reprise d'une activité économique défini à l'article L. 127-1 :
1° Fixe le programme de préparation à la création ou à la reprise et à la gestion d'une activité économique ainsi que les engagements respectifs des parties contractantes, en distinguant d'une part les stipulations prévues jusqu'au début d'une activité économique au sens de l'article L. 127-4 et, d'autre part, les stipulations applicables après le début de cette activité ;
2° Précise la nature, le montant et les conditions d'utilisation des moyens mis à la disposition du bénéficiaire par la personne morale responsable de l'appui ainsi que leur évolution éventuelle au cours de l'exécution du contrat ;
3° Prévoit, le cas échéant, les modalités de calcul ou le montant forfaitaire de la rétribution de la personne morale responsable de l'appui ainsi que leur évolution éventuelle au cours de l'exécution du contrat ;
4° Détermine la nature, le montant maximal et les conditions des engagements pris par le bénéficiaire à l'égard des tiers au cours de l'exécution du contrat ainsi que la partie qui en assume la charge financière à titre définitif ;
5° Détermine, après le début d'une activité économique, les modalités et la périodicité selon
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lesquelles la personne responsable de l'appui est informée des données comptables du bénéficiaire ;
6° Précise les modalités de rupture anticipée ;
7° Peut prévoir, avant le début d'une activité économique, une rémunération du bénéficiaire du contrat ainsi que, le cas échéant, ses modalités de calcul et de versement ainsi que son montant ;
8° Prévoit, après le début d'une activité économique, les conditions dans lesquelles le bénéficiaire du contrat s'acquitte auprès de la personne morale responsable de l'appui du règlement des sommes correspondant au montant des cotisations et contributions sociales versées par celle-ci pour son compte en application du deuxième alinéa de l'article L. 783-1 du code du travail.
Article R127-2
Le contrat d'appui est renouvelé par écrit.
Article R127-3
Avant toute immatriculation ou inscription au registre du commerce et des sociétés, au répertoire des métiers, au registre spécial des agents commerciaux ou à tout autre registre de publicité légale, ou lorsque l'activité économique ne requiert pas d'immatriculation, le bénéficiaire du contrat indique sur les factures, notes de commande, documents publicitaires ainsi que sur toutes correspondances et tous récépissés concernant son activité et signés par lui en son nom et plus généralement sur ses papiers d'affaires qu'il bénéficie d'un contrat d'appui pour la création ou la reprise d'une activité économique. Il mentionne également sur ces documents la dénomination sociale, le lieu du siège social et le numéro d'identification de la personne morale responsable de l'appui, ainsi que le terme du contrat.
Lorsque la nature de l'activité requiert une immatriculation, les obligations du bénéficiaire et les modalités de publicité du contrat d'appui au projet d'entreprise pour la création ou la reprise d'une activité économique sont fixées pour les commerçants par les dispositions du présent code en matière de registre du commerce et des sociétés, pour les artisans par le décret n° 98-247 du 2 avril 1998 modifié relatif à la qualification artisanale et au répertoire des métiers et pour les agents commerciaux par les dispositions du présent code.
Chapitre VIII : Des incapacités d'exercer une profession commerciale ou industrielle.
Chapitre IX : Du tutorat en entreprise.
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Partie réglementaire
LIVRE Ier : Du commerce en général.
TITRE III : Des courtiers, des commissionnaires, des transporteurs et des agents commerciaux.
Chapitre Ier : Des courtiers.
Chapitre II : Des commissionnaires.
Article R132-1
Les règles relatives à l'activité de commissionnaire de transport sont fixées par le décret n° 90-200 du 5 mars 1990 relatif à l'exercice de la profession de commissionnaire de transport.
Chapitre III : Des transporteurs.
Article R133-1
Les règles relatives à l'activité des entreprises de transport public routier de marchandises ou de locations de véhicules industriels avec conducteur destinés au transport de marchandises sont fixées par le décret n° 99-752 du 30 août 1999 relatif aux transports routiers de marchandises.
Article R133-2
Les règles relatives aux opérations de transport impliquant plusieurs opérations successives de chargement et de déchargement sont fixées par le décret n° 95-541 du 2 mai 1995 relatif aux opérations de transport impliquant plusieurs opérations successives de chargement et de déchargement.
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Chapitre IV : Des agents commerciaux.
Article R134-1
L'agent commercial communique à son mandant toute information nécessaire à l'exécution de son contrat.
Article R134-2
Le mandant met à la disposition de l'agent commercial toute documentation utile sur les produits ou services qui font l'objet du contrat d'agence. Il communique à l'agent commercial les informations nécessaires à l'exécution du contrat. Il l'avise dans un délai raisonnable, notamment s'il prévoit que le volume des opérations sera sensiblement inférieur à celui auquel l'agent commercial aurait pu normalement s'attendre.
Il informe également l'agent commercial, dans un délai raisonnable, de son acceptation, de son refus ou de l'inexécution d'une opération que celui-ci lui a apportée.
Article R134-3
Le mandant remet à l'agent commercial un relevé des commissions dues, au plus tard le dernier jour du mois suivant le trimestre au cours duquel elles sont acquises. Ce relevé mentionne tous les éléments sur la base desquels le montant des commissions a été calculé.
L'agent commercial a le droit d'exiger de son mandant qu'il lui fournisse toutes les informations, en particulier un extrait des documents comptables nécessaires pour vérifier le montant des commissions qui lui sont dues.
Article R134-4
Conformément à l'article L. 134-16, est réputée non écrite toute clause ou convention contraire aux dispositions des articles R. 134-1 et R. 134-2 ou dérogeant, au détriment de l'agent commercial, aux dispositions de l'article R. 134-3.
Article R134-5
Lors de sa demande d'immatriculation, la personne physique mariée sous un régime de communauté
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légale ou conventionnelle fournit un justificatif, conformément au modèle défini par arrêté du garde des sceaux, ministre de la justice, établissant que son conjoint a été informé des conséquences sur les biens communs des dettes contractées dans l'exercice de sa profession.
L'agent commercial déclare, le cas échéant, qu'il a effectué une déclaration d'insaisissabilité de ses droits sur l'immeuble où est fixée sa résidence principale, en application de l'article L. 526-1, en précisant le lieu de publication de cette déclaration.
Il déclare, en outre, les nom, nom d'usage, prénoms, date et lieu de naissance, domicile, lorsqu'il est différent du sien, de son conjoint qui collabore effectivement à son activité professionnelle dans les conditions définies à l'article R. 121-1.
Article R134-6
Les agents commerciaux se font immatriculer, avant de commencer l'exercice de leurs activités, sur un registre spécial tenu au greffe du tribunal de commerce dans le ressort duquel ils sont domiciliés. Ils produisent à cet effet une déclaration dont récépissé leur est délivré.
Par dérogation aux dispositions de l'alinéa précédent, dans les départements du Bas-Rhin, du Haut-Rhin et de la Moselle le registre spécial d'immatriculation des agents commerciaux est tenu pour l'étendue du ressort de chaque tribunal de grande instance au greffe des tribunaux d'instance de Colmar, Metz, Mulhouse, Sarreguemines, Saverne, Strasbourg et Thionville.
Tout fait de nature à modifier l'une des mentions figurant à la déclaration d'immatriculation fait l'objet d'une déclaration.
Article R134-7
L'immatriculation au registre spécial des agents commerciaux et le récépissé de déclaration sont valables cinq ans à compter de la date d'immatriculation.
Article R134-8
Tout agent commercial qui cesse d'exercer son activité demande, dans un délai de deux mois, la radiation de son immatriculation en indiquant la date de cette cessation. La même obligation incombe à l'agent commercial qui ne remplit plus les conditions fixées par le présent chapitre.
Article R134-9
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A défaut de demande de radiation dans le délai prescrit, le juge commis à la surveillance du registre du commerce et des sociétés du ressort rend soit d'office, soit à la requête du procureur de la République ou de toute personne justifiant y avoir intérêt une ordonnance enjoignant à l'intéressé de faire procéder à sa radiation.
L'ordonnance du juge est notifiée à l'intéressé dans les conditions prévues à l'article R. 123-140. Les voies de recours sont exercées conformément aux dispositions des articles R. 123-141 et R. 123-142.
L'ordonnance est exécutée dans le délai de quinze jours à compter du jour où elle est devenue définitive. A défaut, le greffier procède d'office à cette radiation à l'expiration de ce délai.
Article R134-10
En cas de décès d'un agent commercial, l'obligation de demander la radiation incombe à ses héritiers ou ayants cause à titre universel.
Lorsque le greffier a reçu la preuve du décès d'une personne immatriculée, et faute par les héritiers ou ayants cause à titre universel de se conformer aux dispositions de l'alinéa précédent, il procède d'office à la radiation de cette personne un an après la date du décès.
Article R134-11
La radiation d'un agent commercial inscrit est ordonnée d'office par toute juridiction de l'ordre judiciaire lorsque cette juridiction rend une décision entraînant pour l'intéressé l'incapacité ou l'interdiction d'exercer sa profession.
Cette radiation est faite par le greffier ou notifiée par lui au greffier compétent.
Article R134-12
Le lieu et le numéro de l'immatriculation au registre spécial figurent sur les documents et correspondances à usage professionnel de l'intéressé.
Article R134-13
Les déclarations relatives à l'immatriculation des agents commerciaux, à la modification de leur situation ou à la cessation de leur activité peuvent être effectuées par voie électronique dès lors qu'elles peuvent être transmises et reçues par cette voie.
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Pour toutes les transmissions par voie électronique mentionnées au premier alinéa, il est fait usage d'une signature électronique sécurisée dans les conditions prévues à l'article 1316-4 du code civil et par le décret n° 2001-272 du 30 mars 2001 pris pour son application. Toutefois, pour les déclarations relatives à l'immatriculation des agents commerciaux, cette signature électronique peut résulter de l'usage d'un procédé répondant aux conditions définies à la première phrase du second alinéa de l'article 1316-4 du code civil.
Le greffier accuse réception, selon les modalités fixées par l'arrêté prévu à l'article R. 134-17, de toute transmission qui lui est faite dès que celle-ci lui parvient.
Article R134-14
Est puni de l'amende prévue par le 5° de l'article 131-13 du code pénal pour les contraventions de la cinquième classe le fait d'émettre des déclarations inexactes ou incomplètes en vue de l'immatriculation au registre spécial prévu à l'article R. 134-6 ou en vue de la modification ou du renouvellement de l'immatriculation.
Article R134-15
Est puni de l'amende prévue par le 5° de l'article 131-13 du code pénal pour les contraventions de la cinquième classe le fait, par toute personne exerçant les activités définies à l'article L. 134-1 :
1° De ne pas faire la déclaration prévue à l'article R. 134-6 dans les conditions prévues par cet article ou les textes pris pour son application en vue de l'immatriculation au registre spécial ;
2° De ne pas signaler les changements survenus dans les mentions figurant sur cette déclaration ;
3° De ne pas demander le renouvellement de son immatriculation en application de l'article R. 134-7 ;
4° De ne pas demander la radiation de son immatriculation au registre spécial en dépit de la cessation d'exercice des activités définies à l'article L. 134-1.
Article R134-16
Est puni de l'amende prévue par le 3° de l'article 131-13 du code pénal pour les contraventions de la troisième classe le fait de ne pas faire figurer sur tous les documents et correspondances à usage professionnel le lieu et le numéro d'immatriculation au registre spécial en dépit de l'inscription à ce registre.
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Article R134-17
Un arrêté du garde des sceaux, ministre de la justice, et du ministre de l'économie et des finances fixe la forme de la déclaration d'immatriculation.
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Partie réglementaire
LIVRE Ier : Du commerce en général.
TITRE IV : Du fonds de commerce.
Chapitre Ier : De la vente du fonds de commerce.
Article R141-1
La publication au Bulletin officiel des annonces civiles et commerciales prévue à l'article L. 141-12 contient les indications mentionnées à l'article R. 123-211.
Article R141-2
Dans le cas prévu par l'article L. 141-18, le délai de publication est de quinze jours en métropole et de deux mois dans les départements et collectivités d'outre-mer.
La publication contient élection de domicile dans le ressort du tribunal de la situation de l'établissement principal et dans le ressort où se trouve la succursale, si celle-ci forme l'objet unique de la cession.
Chapitre II : Du nantissement du fonds de commerce.
Chapitre III : Dispositions communes à la vente et au nantissement du fonds de commerce.
Section 1 : De la réalisation du gage et de la purge des créances inscrites.
Article R143-1
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Lorsque la vente du fonds n'a pas eu lieu aux enchères publiques conformément aux articles L. 141-19, L. 143-3 à L. 143-8, L. 143-10 et L. 143-13 à L. 143-15, l'acquéreur qui veut se garantir des poursuites des créanciers inscrits est tenu, à peine de déchéance, avant la poursuite ou dans les quinze jours de la sommation de payer, de leur notifier, au domicile élu par eux dans leurs inscriptions :
1° Les nom, prénoms et domicile du vendeur ; la désignation précise du fonds ; le prix, non compris le matériel et les marchandises, ou l'évaluation du fonds en cas de transmission à titre gratuit, par voie d'échange ou de reprise, sans fixation de prix, par convention matrimoniale ; les charges, les frais et coûts justifiés exposés par l'acquéreur ;
2° Un tableau sur trois colonnes contenant :
a) La première, la date des ventes ou nantissements antérieurs et des inscriptions prises ;
b) La deuxième, les noms et domiciles des créanciers inscrits ;
c) La troisième, le montant des créances inscrites, avec déclaration que l'acquéreur est prêt à acquitter sans délai les dettes inscrites jusqu'à concurrence de son prix, sans distinction des dettes exigibles ou non exigibles.
Article R143-2
La notification contient élection de domicile dans le ressort du tribunal de commerce de la situation du fonds.
Article R143-3
Si le titre du nouveau propriétaire comprend divers éléments d'un fonds, les uns grevés d'inscriptions, les autres non grevés, situés ou non dans le même ressort, aliénés pour un seul et même prix ou pour des prix distincts, le prix de chaque élément est déclaré dans la notification, par ventilation du prix total exprimé dans le titre.
Article R143-4
L'officier public commis pour procéder à la vente d'un fonds de commerce peut se faire délivrer par le greffier copie des actes de vente sous seing privé déposés au greffe. Il peut également se faire délivrer expédition des actes authentiques de vente.
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Article R143-5
Les frais et indemnités dus à l'administrateur provisoire nommé par application de l'article L. 143-4 sont taxés par le président du tribunal de commerce.
Section 2 : Des formalités d'inscription et de radiation.
Sous-section 1 : De l'inscription.
Article R143-6
Le vendeur ou le créancier gagiste, pour inscrire leur privilège, présentent, soit eux-mêmes, soit par un tiers, au greffier du tribunal de commerce, l'un des originaux de l'acte de vente ou du titre constitutif du nantissement s'il est sous seing privé ou une expédition de l'acte s'il est authentique. L'acte de vente ou de nantissement sous seing privé reste déposé au greffe.
Article R143-7
Le dépôt des actes sous seing privé de vente ou de nantissement de fonds de commerce, prescrit par l'article R. 143-6, est constaté sur un registre spécial tenu par le greffier.
Ce registre est divisé en deux colonnes :
1° La première contient le numéro d'ordre du registre ;
2° Dans la seconde est inscrit le procès-verbal de dépôt contenant la date de ce dernier ; la mention, la date, le coût de l'enregistrement de l'acte ; son numéro d'entrée ; sa nature ; l'indication du nom du créancier et du débiteur ou du vendeur et de l'acheteur, la nature et l'adresse du fonds de commerce.
Ce procès-verbal est signé par le greffier.
Le registre de dépôt, complété par un répertoire alphabétique des noms des débiteurs ou vendeurs, est signé, coté, paraphé et arrêté comme il est dit à l'article R. 143-9.
Article R143-8
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Il est joint à l'acte de vente ou de nantissement deux bordereaux sur papier non timbré dont la forme est déterminée par arrêté du garde des sceaux, ministre de la justice. Ils contiennent :
1° Les nom, prénoms, domicile et profession du vendeur et de l'acquéreur, ou du créancier et du débiteur, ainsi que du propriétaire du fonds si c'est un tiers ;
2° La date et la nature du titre ;
3° Les prix de la vente, établis distinctement pour le matériel, les marchandises et les éléments incorporels du fonds, ainsi que les charges évaluées ou le montant de la créance exprimée dans le titre, les conditions relatives aux intérêts et à l'exigibilité ;
4° La désignation du fonds de commerce et de ses succursales avec l'indication précise des éléments qui les constituent et sont compris dans la vente ou le nantissement, la nature de leurs opérations et leur siège, sous réserve de tous autres renseignements propres à les faire connaître ; si la vente ou le nantissement s'étend à d'autres éléments du fonds de commerce que l'enseigne, le nom commercial, le droit au bail et la clientèle, ces éléments sont nommément désignés ;
5° Election de domicile par le vendeur ou le créancier gagiste dans le ressort du tribunal de commerce de la situation du fonds.
Article R143-9
Les pièces mentionnées aux articles R. 143-6 et R. 143-8 et toutes autres pièces produites aux greffes des tribunaux de commerce reçoivent un numéro d'entrée au moment de leur production.
Ces pièces sont enregistrées sur un registre à souches et il en est délivré un récépissé extrait de ce registre mentionnant :
1° Le numéro d'entrée apposé sur les pièces conformément à l'alinéa premier ;
2° La date du dépôt des pièces ;
3° Le nombre et la nature des pièces avec l'indication du motif du dépôt ;
4° Les noms des parties ;
5° La nature et le lieu d'établissement du fonds de commerce.
Le récépissé est daté et signé par le greffier auquel il est rendu contre remise de la pièce portant, conformément à l'article R. 143-14, la certification que l'inscription du privilège a été effectuée.
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Le registre est signé par première et dernière feuille, coté et paraphé en tous ses feuillets par le président du tribunal. Il est arrêté chaque jour.
Article R143-10
Les déclarations de créance faites aux greffiers en exécution des articles L. 141-21 et L. 141-22 sont inscrites sur un registre à souche tenu par le greffier.
Ce registre est divisé en quatre colonnes destinées à recevoir :
1° Le numéro d'ordre de la déclaration ;
2° Le procès-verbal de la déclaration indiquant la date à laquelle elle a été faite, le nom du déclarant, le nom et l'adresse du débiteur avec l'indication de la nature et du lieu d'établissement du fonds dont il est propriétaire, le montant de la créance, l'indication de l'apport du fonds dans une société dont la nature et le siège sont déterminés, la date et le numéro du dépôt au greffe de l'acte de constitution de ladite société. Ce procès-verbal est signé par le greffier ;
3° La reproduction du numéro d'ordre ;
4° Le certificat de la déclaration de créance qui reproduit succinctement les indications portées à la colonne de la déclaration. Ce certificat, composé des mentions des troisième et quatrième colonnes, est détaché et remis au déclarant. Il est daté et signé par le greffier.
Le registre de déclaration de créance, complété par un répertoire alphabétique des noms des débiteurs, est signé, coté et paraphé comme il est dit à l'article R. 143-12.
Il est arrêté chaque jour.
Article R143-11
Lorsque les ventes ou cessions de fonds de commerce comprennent des marques de fabrique et de commerce et des dessins ou modèles industriels et lorsque les nantissements de ces fonds comprennent des brevets d'invention ou licences, des marques ou des dessins et modèles, le certificat d'inscription délivré par le greffier du tribunal de commerce, conformément à l'article L. 143-17, mentionne :
1° La nature, la date et le numéro de l'inscription effectuée au greffe ;
2° La forme et la date de l'acte de vente ou de l'acte constitutif du nantissement ;
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3° L'identité et l'adresse du créancier gagiste et du débiteur ;
4° La désignation du fonds de commerce ainsi que la nature et les références des titres de propriété industrielle concernés.
Article R143-12
Les greffiers des tribunaux de commerce sont tenus, pour l'exécution des articles L. 141-5 à L. 141-11, L. 142-3 et L. 143-17 et conformément aux articles R. 143-6, R. 143-8 et R. 143-14, d'enliasser et de relier à leurs frais les bordereaux d'inscription du privilège de vendeur et les bordereaux d'inscription du privilège résultant du contrat de nantissement d'un fonds de commerce.
Ils tiennent un fichier alphabétique des noms des débiteurs avec l'indication des numéros des inscriptions les concernant.
Le papier sur lequel sont établis les bordereaux est fourni par les greffiers aux frais des requérants. Toutefois, les officiers publics ou ministériels peuvent se le procurer eux-mêmes.
Article R143-13
Chaque année au mois de décembre, le président du tribunal vérifie la tenue des registres prévus par les articles R. 143-9 et suivants. Il s'assure que les prescriptions de la présente section ont été respectées et en donne l'attestation au pied de la dernière inscription.
Article R143-14
Le greffier remet au requérant l'expédition du titre et l'un des bordereaux prévus à l'article R. 143-8, après l'avoir revêtu, dès sa réception, de la mention d'inscription qui comprend la date de celle-ci et le numéro sous lequel elle a été effectuée.
L'autre bordereau, portant les mêmes mentions, est conservé au greffe.
Article R143-15
Le greffier mentionne en marge des inscriptions les antériorités, les subrogations et radiations totales ou partielles dont il lui est justifié. Les antériorités et les subrogations peuvent résulter d'actes sous seing privé enregistrés.
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Article R143-16
Les greffiers des tribunaux de commerce sont tenus de délivrer à tous ceux qui le requièrent soit l'état des inscriptions existantes, avec les mentions d'antériorité, de radiations partielles et de subrogations partielles ou totales, soit un certificat qu'il n'en existe aucune ou simplement que le fonds est grevé.
Un état des inscriptions ou mentions effectuées à l'Institut national de la propriété industrielle est de même être délivré à toute réquisition.
Article R143-17
Il est interdit aux greffiers de refuser ou de retarder les inscriptions ou la délivrance des états ou certificats requis.
Ils sont responsables de l'omission sur leurs registres des inscriptions requises en leur greffe et du défaut de mention dans leurs états ou certificats d'une ou plusieurs inscriptions existantes, à moins, dans ce dernier cas, que l'erreur ne provienne de désignations insuffisantes qui ne pourraient leur être imputées.
Sous-section 2 : De la radiation.
Article R143-18
Lorsque la radiation, non consentie par le créancier, est demandée par voie d'action principale, cette action est portée devant le tribunal de commerce du lieu de l'inscription.
Si l'action a pour objet la radiation d'inscriptions prises dans des ressorts différents sur un fonds et ses succursales, elle est portée pour le tout devant le tribunal de commerce dans le ressort duquel se trouve l'établissement principal.
Article R143-19
La radiation est opérée au moyen d'une mention faite par le greffier en marge de l'inscription.
Il en est délivré certificat aux parties qui le demandent.
Article R143-20
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Le certificat de radiation, délivré par le greffier, en exécution de l'article L. 143-20, contient les mêmes indications que celles qui sont prévues pour le certificat d'inscription mentionné à l'article R. 143-11.
Sous-section 3 : Dispositions particulières.
Article R143-21
L'inscription et la radiation du privilège ou du nantissement à l'Institut national de la propriété industrielle s'effectuent par report du certificat du greffier selon la nature des titres concernés :
1° Au registre national des brevets ou au registre national des marques, dans les conditions prévues par les textes qui leur sont applicables ;
2° Dans un registre spécial aux dépôts de dessins et modèles, à la demande de l'une des parties à l'acte.
Les dispositions des alinéas précédents sont applicables à l'inscription des antériorités et subrogations. Toutefois, le certificat du greffier est, dans ce cas, remplacé par les justifications prévues à l'article R. 143-15.
Article R143-22
Le nantissement de fonds qui comprennent des droits d'exploitation de logiciels ainsi que les ventes ou cessions de fonds de commerce comprenant des droits d'exploitation de logiciels nantis sont inscrits à l'Institut national de la propriété industrielle sur la production du certificat d'inscription délivré par le greffier du tribunal de commerce.
Les formalités prévues aux articles R. 143-11, R. 143-20 et R. 143-21 sont applicables aux actes inscrits au registre national spécial des logiciels tenu par l'Institut national de la propriété industrielle.
Section 3 : Des intermédiaires et de la répartition du prix.
Article R143-23
Pour l' application de l' article L. 143- 21, il est procédé conformément aux articles 1281- 2 et suivants du code de procédure civile.
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Chapitre IV : De la location-gérance.
Section 1 : Des mesures de publicité.
Article R144-1
Les contrats de gérance définis à l'article L. 144-1 sont publiés dans la quinzaine de leur date sous forme d'extraits ou d'avis dans un journal habilité à recevoir les annonces légales. La fin de la location-gérance donne lieu aux mêmes mesures de publicité.
Section 2 : Dispositions spécifiques pour les entreprises de transports publics et de location de véhicules industriels.
Article D144-2
Les conditions particulières d'application aux entreprises de transports publics et de location de véhicules industriels des articles L. 144-1 et suivants relatifs à la location-gérance des fonds de commerce et des établissements artisanaux sont déterminées par la présente section.
Article D144-3
Lorsque l'entrée en vigueur du contrat de location-gérance est subordonnée à une décision administrative en vertu des textes législatifs et réglementaires relatifs à la coordination des transports, le délai de quinzaine, fixé par l'article R. 144-1, court de la date de notification par le préfet de cette décision.
Cette notification est faite par lettre recommandée avec demande d'avis de réception ; elle fait également courir les délais impartis au locataire et au loueur par le présent code pour les inscriptions au registre du commerce.
Article D144-4
Le propriétaire d'un fonds de commerce de transport ou de location de véhicules industriels, qui met en location-gérance une partie de son fonds, est tenu de mentionner, lors de l'inscription qu'il
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effectue au registre du commerce et des sociétés, la mise en location-gérance partielle, sans être astreint à préciser les éléments loués.
Cette mention demeure valable, en cas de modification des éléments loués. Elle fait l'objet d'une inscription modificative si l'intéressé reprend l'exploitation de son fonds ou au contraire en loue la totalité. Elle fait l'objet d'une radiation si l'intéressé cède son fonds.
Article D144-5
Ne sont pas considérées comme location de fonds de commerce, au sens de l'article L. 144-1, les opérations ayant pour objet d'adapter les droits du locataire à la charge utile de son parc de véhicules lorsque le total des capacités de transport ainsi obtenues par le locataire n'excède pas cinq tonnes pour les transports publics de marchandises ou soixante places de voyageurs pour les services occasionnels de voyageurs et lorsque les locations, pour un même loueur, ne totalisent au maximum que dix tonnes ou soixante places de voyageurs et restent inférieures à la moitié du montant global des droits de ce loueur.
Ne sont pas davantage considérées comme location de fonds de commerce, les locations réciproques ayant pour objet de faciliter le fonctionnement des entreprises et consenties, pour chacune des parties, dans la limite de dix tonnes pour les transports publics de marchandises ou les locations de véhicules industriels ou de soixante places de voyageurs pour les services occasionnels de voyageurs.
Echappent de même à l'application des articles L. 144-1 à L. 144-13 les accords conclus à titre provisoire par des exploitants de services réguliers de voyageurs pour l'aménagement, avec l'accord de l'administration, de leurs services respectifs.
Chapitre V : Du bail commercial.
Section 1 : Du renouvellement.
Article R145-1
Le bailleur qui n'a pas fait connaître le montant du loyer qu'il propose dans les conditions de l'article L. 145-11 peut demander une modification du prix du bail ultérieurement, par acte d'huissier de justice, par lettre recommandée avec demande d'avis de réception ou dans le mémoire prévu à l'article R. 145-23.
Section 2 : Du loyer.
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Sous-section 1 : De la détermination de la valeur locative.
Article R145-2
Les éléments mentionnés aux 1° à 5° de l'article L. 145-33 s'apprécient dans les conditions fixées par la présente sous-section.
Article R145-3
Les caractéristiques propres au local s'apprécient en considération :
1° De sa situation dans l'immeuble où il se trouve, de sa surface et de son volume, de la commodité de son accès pour le public ;
2° De l'importance des surfaces respectivement affectées à la réception du public, à l'exploitation ou à chacune des activités diverses qui sont exercées dans les lieux ;
3° De ses dimensions, de la conformation de chaque partie et de son adaptation à la forme d'activité qui y est exercée ;
4° De l'état d'entretien, de vétusté ou de salubrité et de la conformité aux normes exigées par la législation du travail ;
5° De la nature et de l'état des équipements et des moyens d'exploitation mis à la disposition du locataire.
Article R145-4
Les caractéristiques propres au local peuvent être affectées par des éléments extrinsèques constitués par des locaux accessoires, des locaux annexes ou des dépendances, donnés en location par le même bailleur et susceptibles d'une utilisation conjointe avec les locaux principaux.
Lorsque les lieux loués comportent une partie affectée à l'habitation, la valeur locative de celle-ci est déterminée par comparaison avec les prix pratiqués pour des locaux d'habitation analogues faisant l'objet d'une location nouvelle, majorés ou minorés, pour tenir compte des avantages ou des inconvénients présentés par leur intégration dans un tout commercial.
Article R145-5
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La destination des lieux est celle autorisée par le bail et ses avenants ou par le tribunal dans les cas prévus aux articles L. 145-47 à L. 145-55.
Article R145-6
Les facteurs locaux de commercialité dépendent principalement de l'intérêt que présente, pour le commerce considéré, l'importance de la ville, du quartier ou de la rue où il est situé, du lieu de son implantation, de la répartition des diverses activités dans le voisinage, des moyens de transport, de l'attrait particulier ou des sujétions que peut présenter l'emplacement pour l'activité considérée et des modifications que ces éléments subissent d'une manière durable ou provisoire.
Article R145-7
Les prix couramment pratiqués dans le voisinage, par unité de surfaces, concernent des locaux équivalents eu égard à l'ensemble des éléments mentionnés aux articles R. 145-3 à R. 145-6.
A défaut d'équivalence, ils peuvent, à titre indicatif, être utilisés pour la détermination des prix de base, sauf à être corrigés en considération des différences constatées entre le local loué et les locaux de référence.
Les références proposées de part et d'autre portent sur plusieurs locaux et comportent, pour chaque local, son adresse et sa description succincte. Elles sont corrigées à raison des différences qui peuvent exister entre les dates de fixation des prix et les modalités de cette fixation.
Article R145-8
Du point de vue des obligations respectives des parties, les restrictions à la jouissance des lieux et les obligations incombant normalement au bailleur dont celui-ci se serait déchargé sur le locataire sans contrepartie constituent un facteur de diminution de la valeur locative. Il en est de même des obligations imposées au locataire au-delà de celles qui découlent de la loi ou des usages. Les améliorations apportées aux lieux loués au cours du bail à renouveler ne sont prises en considération que si, directement ou indirectement, notamment par l'acceptation d'un loyer réduit, le bailleur en a assumé la charge.
Les obligations découlant de la loi et génératrices de charges pour l'une ou l'autre partie depuis la dernière fixation du prix peuvent être invoquées par celui qui est tenu de les assumer.
Il est aussi tenu compte des modalités selon lesquelles le prix antérieurement applicable a été originairement fixé.
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Article R145-9
Le prix du bail des terrains est fixé en considération de ceux des éléments qui leur sont particuliers, eu égard à la nature et aux modalités de l'exploitation effectivement autorisée.
Article R145-10
Le prix du bail des locaux construits en vue d'une seule utilisation peut, par dérogation aux articles L. 145-33 et R. 145-3 et suivants, être déterminé selon les usages observés dans la branche d'activité considérée.
Article R145-11
Le prix du bail des locaux à usage exclusif de bureaux est fixé par référence aux prix pratiqués pour des locaux équivalents, sauf à être corrigés en considération des différences constatées entre le local loué et les locaux de référence.
Les dispositions des deuxième et troisième alinéas de l'article R. 145-7 sont en ce cas applicables.
Sous-section 2 : De la commission départementale de conciliation en matière de baux d'immeubles ou locaux à usage commercial, industriel ou artisanal.
Article D145-12
La commission départementale de conciliation prévue par l'article L. 145-35 est composée de bailleurs et de locataires, d'une part, et de personnes qualifiées, d'autre part. Elle comporte une ou plusieurs sections composées chacune de deux bailleurs, deux locataires et une personne qualifiée. Le préfet fixe le nombre des sections et nomme les membres titulaires et suppléants de chaque section, pour une durée de trois ans renouvelable après consultation des organismes représentatifs des bailleurs et des locataires.
Article D145-13
Les membres de la commission nommés au titre des personnes qualifiées ne peuvent être ni bailleurs ni locataires d'immeubles ou de locaux à usage commercial, industriel ou artisanal.
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Article D145-14
Les personnes ne remplissant plus les conditions nécessaires pour être membres de la commission cessent d'appartenir à celle-ci. Le préfet peut, en outre, déclarer démissionnaires d'office les membres de la commission qui, sans motif légitime, n'ont pas assisté à trois séances consécutives de la commission.
Article D145-15
La présidence de chaque section est assurée par le membre désigné au titre des personnes qualifiées.
Le doyen d'âge des présidents de section assure en outre les fonctions de président de la commission départementale.
Article D145-16
La commission établit son règlement intérieur qui fixe notamment les conditions d'instruction et d'examen des affaires.
Chaque section se réunit à l'initiative de son président et, le cas échéant, sur convocation du préfet.
Article D145-17
La commission est saisie par lettre recommandée avec demande d'avis de réception adressée à son secrétariat, qui convoque les parties à la séance au cours de laquelle l'affaire est examinée par lettre recommandée avec demande d'avis de réception adressée au minimum quinze jours avant la date retenue.
La commission émet son avis même si les parties, dûment convoquées, ne sont ni présentes ni représentées.
Article D145-18
En cas de conciliation, il est dressé un acte signé des parties. A défaut de conciliation, la commission émet un avis faisant apparaître les points essentiels du désaccord des parties et la proposition motivée de la commission concernant la variation du loyer.
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Cet avis est signé par le président et le secrétaire. Il est aussitôt notifié à chacune des parties par lettre recommandée avec demande d'avis de réception.
Article D145-19
Les membres de la commission sont rémunérés sous forme de vacations dans des conditions fixées par arrêté pris par le ministre chargé du budget et le ministre chargé du commerce, de l'artisanat et des services.
Les indemnités de déplacement des membres de la commission sont réglées dans les conditions prévues par le décret n° 90-437 du 28 mai 1990 fixant les conditions et les modalités de règlement des frais occasionnés par les déplacements des personnels civils sur le territoire métropolitain de la France lorsqu'ils sont à la charge des budgets de l'Etat, des établissements publics nationaux à caractère administratif et de certains organismes subventionnés.
Sous-section 3 : De la révision des loyers.
Article R145-20
La demande de révision des loyers prévue à l'article L. 145-37 est formée par acte extrajudiciaire ou par lettre recommandée avec demande d'avis de réception. Elle précise, à peine de nullité, le montant du loyer demandé ou offert.
A défaut d'accord, la demande est jugée dans les conditions prévues aux articles L. 145-56 à L. 145-60.
Le nouveau prix est dû à dater du jour de la demande à moins que les parties ne se soient mises d'accord avant ou pendant l'instance sur une date plus ancienne ou plus récente.
Article R145-21
Le prix fixé judiciairement ne peut, en aucun cas, excéder les limites de l'offre et de la demande faite, selon le cas, en application de l'article L. 145-37 et conformément à l'article R. 145-20 ou en application de l'article L. 145-11, sauf si depuis lors les parties ont varié dans leurs prétentions.
En ce dernier cas, le prix ne peut prendre effet, dans la mesure où il excéderait les limites fixées par les prétentions originaires des parties, qu'à dater de la notification des nouvelles prétentions.
Article R145-22
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Le juge adapte le jeu de l'échelle mobile à la valeur locative au jour de la demande.
Si l'un des éléments retenus pour le calcul de la clause d'échelle mobile vient à disparaître, la révision ne peut être demandée et poursuivie que dans les conditions prévues à l'article L. 145-38.
Section 3 : De la procédure.
Article R145-23
Les contestations relatives à la fixation du prix du bail révisé ou renouvelé sont portées, quel que soit le montant du loyer, devant le président du tribunal de grande instance ou le juge qui le remplace. Il est statué sur mémoire.
Les autres contestations sont portées devant le tribunal de grande instance qui peut, accessoirement, se prononcer sur les demandes mentionnées à l'alinéa précédent.
La juridiction territorialement compétente est celle du lieu de la situation de l'immeuble.
Article R145-24
Les mémoires indiquent l'adresse de l'immeuble donné à bail ainsi que :
1° Pour les personnes physiques, leurs nom, prénoms, profession, domicile, nationalité, date et lieu de naissance ;
2° Pour les personnes morales, leurs dénomination et siège social, ainsi que le titre et les nom et prénoms de leur représentant légal.
Article R145-25
Les mémoires contiennent :
1° Une copie de la demande en fixation de prix faite, selon le cas, en application de l'article L. 145-11 ou en application de l'article R. 145-20 ;
2° L'indication des autres prétentions ;
3° Les explications de droit et de fait de nature à justifier les prétentions de leur auteur ou à réfuter
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celles de l'autre partie.
Les mémoires en réplique ou ceux rédigés après l'exécution d'une mesure d'instruction peuvent ne comporter que les explications de droit ou de fait.
Article R145-26
Les mémoires sont signés des parties ou de leurs représentants. Les copies des pièces que les parties estiment devoir y annexer sont certifiées conformes à l'original par le signataire du mémoire. Les mémoires sont notifiés par chacune des parties à l'autre, par lettre recommandée avec demande d'avis de réception. La notification est valablement faite par le locataire au gérant de l'immeuble.
Article R145-27
Le juge ne peut, à peine d'irrecevabilité, être saisi avant l'expiration d'un délai d'un mois suivant la réception par son destinataire du premier mémoire établi.
La partie la plus diligente remet au greffe son mémoire aux fins de fixation de la date de l'audience. Elle y annexe les pièces sur lesquelles elle fonde sa demande et un plan des locaux. Elle y joint également le mémoire et les pièces reçus de l'autre partie.
La remise peut être faite par la partie elle-même ou par un avocat. Les mémoires et les pièces peuvent être remis en original ou en copie.
Article R145-28
Il est procédé pour le surplus comme il est dit, en matière de procédure à jour fixe, aux articles 788 à 792 du code de procédure civile. L' assignation n' a toutefois pas à reproduire ou à contenir les éléments déjà portés à la connaissance du défendeur.
Article R145-29
Les parties peuvent se faire assister ou représenter par un avocat. Elles ne peuvent, ainsi que leur conseil, développer oralement, à l'audience, que les moyens et conclusions de leurs mémoires.
Article R145-30
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Lorsque le juge s'estime insuffisamment éclairé sur des points qui peuvent être élucidés par une visite des lieux ou s'il lui apparaît que les prétentions des parties divergent sur de tels points, il se rend sur les lieux aux jour et heure décidés par lui le cas échéant en présence d'un consultant.
Toutefois, s'il estime que des constatations purement matérielles sont suffisantes, il peut commettre toute personne de son choix pour y procéder.
Si les divergences portent sur des points de fait qui ne peuvent être tranchés sans recourir à une expertise, le juge désigne un expert dont la mission porte sur les éléments de fait permettant l'appréciation des critères définis, selon le cas, aux articles R. 145-3 à R. 145-7, L. 145-34, R. 145-9, R. 145-10 ou R. 145-11, et sur les questions complémentaires qui lui sont soumises par le juge.
Toutefois, si le juge estime devoir limiter la mission de l'expert à la recherche de l'incidence de certains éléments seulement, il indique ceux sur lesquels elle porte.
Article R145-31
Dès le dépôt du constat ou du rapport, le greffe avise les parties par lettre recommandée avec demande d'avis de réception ou, si elles sont représentées, leurs avocats, de la date à laquelle l'affaire sera reprise et de celle à laquelle les mémoires faits après l'exécution de la mesure d'instruction devront être échangés.
Le juge, en présence des parties ou celles-ci dûment convoquées, peut entendre l'expert ou l'auteur du constat pour lui demander les éclaircissements qu'il estime nécessaires.
En cas de conciliation intervenue au cours d'une mesure d'instruction, le technicien commis constate que sa mission est devenue sans objet et en fait rapport au juge. Mention en est faite au dossier de l'affaire et celle-ci est retirée du rôle. Les parties peuvent demander au juge de donner force exécutoire à l'acte exprimant leur accord.
Article R145-32
La rémunération définitive de l'expert est fixée en considération de sa mission. En aucun cas la rémunération de l'expert ne peut être fixée proportionnellement au montant du loyer demandé ou proposé.
Article R145-33
En cas d'appel, les dispositions des articles R. 145-31 et R. 145-32 sont applicables.
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Chapitre VI : Des gérants-mandataires.
Article D146-1
Les informations prévues à l'article L. 146-2 sont communiquées par écrit dans un document dit " document précontractuel ", devant comporter :
1° L'identité du mandant s'il s'agit d'une personne physique ou des dirigeants s'il s'agit d'une personne morale, son adresse ou son siège social et son numéro unique d'identification ;
2° L'adresse du siège de l'entreprise dont le fonds est mis en gérance-mandat, la nature de ses activités, l'indication de sa forme juridique, le cas échéant le montant du capital social ;
3° Le cas échéant, le chiffre d'affaires annuel réalisé au cours des deux derniers exercices du fonds mis en gérance-mandat, ainsi que le bilan annuel pour ces mêmes périodes ;
4° La date de création de l'entreprise dont le fonds est mis en gérance-mandat, ainsi qu'un rappel des principales étapes de son évolution depuis sa création ;
5° Les affiliations éventuelles du mandant à un réseau d'exploitants ainsi que la nature des contrats régissant les affiliations à ce réseau ;
6° Les conditions générales de gestion du fonds ;
7° Les taux, mode de calcul et tous autres éléments entrant en compte pour la détermination de la commission versée au gérant-mandataire ;
8° L'indication de la durée, des conditions de renouvellement, de cession et de résiliation du contrat proposé.
Article D146-2
Ces informations doivent être communiquées au gérant-mandataire dix jours au moins avant la signature du contrat de gérance-mandat.
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Partie réglementaire
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique.
TITRE Ier : Dispositions préliminaires.
Section 1 : De la constitution de la société et de la modification de ses statuts.
Sous-section 1 : De la constitution de la société.
Article R210-1
Les sociétés commerciales sont immatriculées au registre du commerce et des sociétés dans les conditions définies par le livre Ier.
La demande d'immatriculation est présentée après accomplissement des formalités de constitution de la société.
Article R210-2
La durée de la société court à dater de l'immatriculation de celle-ci au registre du commerce et des sociétés.
Elle peut être prorogée une ou plusieurs fois, sans que chaque prorogation puisse excéder quatre-vingt-dix-neuf ans.
Article R210-3
Lorsque les autres formalités de constitution de la société ont été accomplies, un avis est inséré dans un journal habilité à recevoir les annonces légales dans le département du siège social.
Cet avis est signé par le notaire qui a reçu l'acte de société ou au rang des minutes duquel il a été
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déposé ; dans les autres cas, il est signé par l'un des fondateurs ou des premiers associés ayant reçu un pouvoir spécial à cet effet.
Article R210-4
L'avis mentionné à l'article R. 210-3 contient les indications suivantes :
1° La dénomination sociale suivie, le cas échéant, de son sigle ;
2° La forme de la société ;
3° Le montant du capital social ;
4° L'adresse du siège social ;
5° L'objet social, indiqué sommairement ;
6° La durée pour laquelle la société a été constituée ;
7° Les nom, prénom usuel et domicile des associés tenus indéfiniment des dettes sociales ;
8° Les nom, prénom usuel et domicile des associés ou des tiers ayant, dans la société, la qualité de gérant, administrateur, président du conseil d'administration, directeur général, membre du directoire, membre du conseil de surveillance ou commissaire aux comptes ;
9° Les nom, prénom usuel et domicile des personnes ayant le pouvoir général d'engager la société envers les tiers ;
10° L'indication du greffe du tribunal où la société sera immatriculée au registre du commerce et des sociétés.
S'il s'agit d'une société par actions, l'avis contient en outre les indications suivantes :
1° Les conditions d'admission aux assemblées d'actionnaires et d'exercice du droit de vote, notamment les conditions d'attribution du droit de vote double ;
2° Le cas échéant, l'existence de clauses relatives à l'agrément des cessionnaires d'actions et la désignation de l'organe social habilité à statuer sur les demandes d'agrément.
Si la société est à capital variable, l'avis en fait mention et indique le montant au-dessous duquel le capital ne peut être réduit.
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Article R210-5
Lors de la constitution d'une société à responsabilité limitée, l'état des actes accomplis pour le compte de la société en formation, avec l'indication, pour chacun d'eux, de l'engagement qui en résulterait pour la société, est présenté aux associés avant la signature des statuts.
Cet état est annexé aux statuts, dont la signature emporte reprise des engagements par la société, lorsque celle-ci a été immatriculée au registre du commerce et des sociétés.
En outre, les associés peuvent, dans les statuts ou par acte séparé, donner mandat à l'un ou plusieurs d'entre eux ou au gérant non associé qui a été désigné, de prendre des engagements pour le compte de la société. Sous réserve qu'ils soient déterminés et que les modalités en soient précisées par le mandat, l'immatriculation de la société au registre du commerce et des sociétés emporte reprise de ces engagements par la société.
Article R210-6
Lors de la constitution d'une société par actions sans offre au public, l'état des actes accomplis pour le compte de la société en formation, avec l'indication, pour chacun d'eux, de l'engagement qui en résulterait pour la société, est tenu à la disposition des actionnaires dans les conditions prévues à l'article R. 225-14.
Cet état est annexé aux statuts, dont la signature emporte reprise des engagements par la société, lorsque celle-ci a été immatriculée au registre du commerce.
En outre, les actionnaires peuvent, dans les statuts, ou par acte séparé, donner mandat à l'un ou plusieurs d'entre eux de prendre des engagements pour le compte de la société. Sous réserve qu'ils soient déterminés et que leurs modalités soient précisées par le mandat, l'immatriculation de la société au registre du commerce et des sociétés emporte reprise de ces engagements par la société.
Article R210-7
Lors de la constitution d'une société par actions avec offre au public, les actes accomplis pour le compte de la société en formation conformément au deuxième alinéa de l'article L. 210-6 sont soumis à l'assemblée générale constitutive, après qu'ont été désignés les premiers membres du conseil d'administration ou du conseil de surveillance et les premiers commissaires aux comptes.
Le rapport des fondateurs énumère chacun de ces actes et indique l'engagement qui en résulterait pour la société.
Si l'assemblée autorise la société à les reprendre à son compte, cette décision ne prend effet, dans les conditions prévues au deuxième alinéa de l'article L. 210-6, qu'après immatriculation de la
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société au registre du commerce et des sociétés.
L'assemblée peut également donner mandat à une ou plusieurs des personnes désignées en qualité de premiers membres du conseil d'administration ou du conseil de surveillance de prendre des engagements pour le compte de la société. Sous réserve qu'ils soient déterminés et que leurs modalités soient précisées par le mandat, l'immatriculation de la société au registre du commerce et des sociétés emporte reprise de ces engagements par la société.
Article R210-8
Après immatriculation au registre du commerce et des sociétés, la constitution de la société fait l'objet d'une publicité au Bulletin officiel des annonces civiles et commerciales, conformément à l'article R. 123-155.
Sous-section 2 : De la modification des statuts.
Article R210-9
Si l'une des mentions de l'avis prévu à l'article R. 210-3 est frappée de caducité par suite de la modification des statuts ou d'un autre acte, délibération ou décision, la modification intervenue est publiée dans les conditions prévues à l'article R. 210-3.
L'avis est signé par le notaire qui a reçu l'acte ou au rang des minutes duquel il a été déposé ; dans les autres cas, il est signé par les représentants légaux de la société.
Il contient les indications suivantes :
1° La raison sociale ou la dénomination sociale suivie, le cas échéant, de son sigle ;
2° La forme de la société ;
3° Le montant du capital social ;
4° L'adresse du siège social ;
5° Les mentions prévues aux 1° et 2° de l'article R. 123-237 et le numéro unique d'identification de la société à l'Institut national de la statistique et des études économiques ;
6° L'indication des modifications intervenues, reproduisant l'ancienne mention à côté de la nouvelle.
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Article R210-10
Le nom des premiers gérants, administrateurs, membres du conseil de surveillance et commissaires aux comptes mentionnés dans les statuts peut être omis dans les statuts mis à jour et déposés en annexe au registre du commerce et des sociétés, sans qu'il y ait lieu, sauf dispositions statutaires contraires, de les remplacer par le nom des personnes qui leur ont succédé dans ces fonctions.
Les mentions prévues aux 4° et 8° de l'article R. 224-2 peuvent être également omises des statuts mis à jour, sous la condition que la société soit immatriculée au registre du commerce et des sociétés depuis plus de cinq ans.
Article R210-11
En cas de transfert du siège social hors du ressort du tribunal au greffe duquel la société a été immatriculée, l'avis, publié dans un journal habilité à recevoir des annonces légales du département du nouveau siège, indique que le siège social a été transféré et reproduit les mentions prévues aux 1°, 2°, 4° et 9° de l'article R. 210-4 et comporte en outre :
1° Les mentions prévues aux 1° et 2° de l'article R. 123-237, en ce qui concerne l'ancien siège social ;
2° L'indication du registre du commerce et des sociétés où la société sera immatriculée en raison de son nouveau siège social.
Sous-section 3 : De l'action en régularisation.
Article R210-12
L'action en régularisation de la constitution de la société ou de la modification des statuts, prévue à l'article L. 210-7, est portée devant le tribunal de commerce.
Le tribunal territorialement compétent est celui dans le ressort duquel est situé le siège de la société.
Article R210-13
Si une ou plusieurs énonciations exigées par la loi ou les règlements ne figurent pas dans les statuts, le tribunal ordonne que ceux-ci soient complétés dans les mêmes conditions que celles requises lors de la constitution de la société.
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Si une formalité prescrite par la loi ou les règlements pour la constitution de la société ou la modification des statuts a été omise ou irrégulièrement accomplie, le tribunal ordonne qu'elle soit accomplie ou refaite. Il peut en outre ordonner que toutes les formalités qui ont suivi celle omise ou entachée d'un vice, ou certaines d'entre elles seulement, soient également refaites.
Section 2 : De la dissolution de la société.
Article R210-14
L'associé ou l'actionnaire d'une société entre les mains duquel sont réunies toutes les parts ou actions peut dissoudre cette société à tout moment, par déclaration au greffe du tribunal de commerce, en vue de la mention de la dissolution au registre du commerce et des sociétés.
Le déclarant est liquidateur de la société, à moins qu'il ne désigne une autre personne pour exercer cette fonction.
Article R210-15
La dissolution judiciaire de la société, pour quelque cause que ce soit, est de la compétence du tribunal de commerce.
Section 3 : Des formalités de publicité.
Article R210-16
La publicité au moyen d'avis ou annonces est faite, selon le cas, par insertions au Bulletin officiel des annonces civiles et commerciales ou dans un journal habilité à recevoir les annonces légales dans le département du siège social ou au Bulletin des annonces légales obligatoires.
Article R210-17
La publicité par dépôt d'actes ou de pièces est faite au greffe du tribunal de commerce, en annexe au registre du commerce et des sociétés, dans les conditions prévues par la section 1 du chapitre III du titre II du livre Ier.
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Article R210-18
Les formalités de publicité sont effectuées à la diligence et sous la responsabilité des représentants légaux des sociétés.
Lorsqu'une formalité de publicité ne portant ni sur la constitution de la société ni sur la modification de ses statuts a été omise ou irrégulièrement accomplie et si la société n'a pas régularisé la situation dans le délai d'un mois à compter de la mise en demeure qui lui a été adressée, tout intéressé peut demander au président du tribunal de commerce, statuant en référé, de désigner un mandataire chargé d'accomplir la formalité.
Article R210-19
Dans tous les cas où, en vertu du présent livre, il est statué par ordonnance du président du tribunal, soit sur requête, soit en référé, une copie de cette ordonnance est déposée par le greffier au dossier de la société, en annexe au registre du commerce et des sociétés.
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Partie réglementaire
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique.
TITRE II : Dispositions particulières aux diverses sociétés commerciales.
Chapitre Ier : Des sociétés en nom collectif.
Article R221-1
Si les statuts sont établis par acte sous seing privé, il est dressé autant d'originaux qu'il est nécessaire pour le dépôt d'un exemplaire au siège social, l'exécution des diverses formalités requises et la remise d'un exemplaire à chaque associé.
Article R221-2
Toute délibération des associés est constatée par un procès-verbal qui indique la date et le lieu de réunion, les noms et prénoms des associés présents, les documents et rapports soumis à discussion, un résumé des débats, le texte des résolutions mises aux voix et le résultat des votes. Le procès-verbal est signé par chacun des associés présents.
Lorsque tous les associés sont gérants, seules les délibérations dont l'objet excède les pouvoirs reconnus aux gérants sont soumises aux dispositions de l'alinéa précédent.
En cas de consultation écrite, il en est fait mention dans le procès-verbal, auquel est annexée la réponse de chaque associé et qui est signé par les gérants.
Article R221-3
Les procès-verbaux prévus à l'article R. 221-2 sont établis sur un registre spécial tenu au siège social et coté et paraphé soit par un juge du tribunal de commerce, soit par un juge du tribunal d'instance, soit par le maire de la commune du siège social ou un adjoint au maire, dans la forme ordinaire et sans frais.
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Toutefois, les procès-verbaux peuvent être établis sur des feuilles mobiles numérotées sans discontinuité, paraphées dans les conditions prévues à l'alinéa précédent et revêtues du sceau de l'autorité qui les a paraphées. Dès qu'une feuille a été remplie, même partiellement, elle est jointe à celles précédemment utilisées. Toute addition, suppression, substitution ou interversion de feuilles est interdite.
Article R221-4
Les copies ou extraits des procès-verbaux des délibérations des associés sont certifiés conformes par un seul gérant. Au cours de la liquidation de la société, leur certification est effectuée par un seul liquidateur.
Article R221-5
Pour l'application du deuxième alinéa de l'article L. 221-9 relatif à la désignation d'un commissaire aux comptes, le total du bilan est fixé à 1 550 000 euros, le montant hors taxe du chiffre d'affaires à 3 100 000 euros et le nombre moyen de salariés à cinquante. Le total du bilan, le montant hors taxe du chiffre d'affaires et le nombre moyen de salariés sont déterminés conformément aux quatrième, cinquième et sixième alinéas de l'article R. 123-200.
La société n'est plus tenue de désigner un commissaire aux comptes dès lors qu'elle n'a pas dépassé les chiffres fixés pour deux de ces trois critères pendant les deux exercices précédant l'expiration du mandat du commissaire aux comptes.
Dans le cas prévu au troisième alinéa de l'article L. 221-9, le commissaire aux comptes est désigné par ordonnance du président du tribunal de commerce statuant en la forme des référés.
Article R221-6
Les comptes annuels, le rapport de gestion ainsi que, le cas échéant, les comptes consolidés et le rapport sur la gestion du groupe sont tenus, au siège social, à la disposition des commissaires aux comptes un mois au moins avant la convocation de l'assemblée prévue à l'article L. 221-7.
Article R221-7
Les comptes annuels, le rapport de gestion, le texte des résolutions proposées ainsi que, le cas échéant, les comptes consolidés, le rapport sur la gestion du groupe et les rapports des commissaires aux comptes sur les comptes annuels et sur les comptes consolidés sont adressés aux associés quinze jours au moins avant la réunion de l'assemblée prévue à l'article L. 221-7.
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Pendant le délai de quinze jours qui précède l'assemblée, l'inventaire est tenu, au siège social, à la disposition des associés, qui peuvent en prendre copie.
Les dispositions du présent article ne sont pas applicables lorsque tous les associés sont gérants.
Article R221-8
En application des dispositions de l'article L. 221-8, l'associé non gérant a le droit de prendre par lui-même, au siège social, connaissance des livres de commerce et de comptabilité, des contrats, factures, correspondances, procès-verbaux et plus généralement de tout document établi par la société ou reçu par elle.
Le droit de prendre connaissance emporte celui de prendre copie.
Dans l'exercice de ces droits, l'associé peut se faire assister d'un expert choisi sur une des listes établies par les cours et tribunaux.
Article R221-9
La publicité prescrite par l'article L. 221-14 est accomplie par le dépôt, en annexe au registre du commerce et des sociétés, de deux expéditions de l'acte de cession, s'il a été établi dans la forme authentique, ou de deux originaux, s'il est sous seing privé.
Article R221-10
Le créancier ne peut poursuivre un associé, à défaut de paiement ou de constitution de garanties par la société, que huit jours au moins après mise en demeure de celle-ci.
Ce délai peut être prolongé par ordonnance du président du tribunal de commerce statuant en référé.
Chapitre II : Des sociétés en commandite simple.
Article R222-1
Les dispositions du chapitre Ier sont applicables aux sociétés en commandite simple.
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Article R222-2
Les avis et conseils, les actes de contrôle et de surveillance de l'associé commanditaire ne constituent pas des actes de gestion externe au sens de l'article L. 222-6.
Article R222-3
L'associé commanditaire exerce le droit ouvert par l'article L. 222-7 dans les conditions prévues à l'article R. 221-8.
Chapitre III : Des sociétés à responsabilité limitée.
Article R223-1
Si les statuts sont établis par acte sous seing privé, il est dressé autant d'originaux qu'il est nécessaire pour le dépôt d'un exemplaire au siège social et l'exécution des diverses formalités requises.
En outre, un exemplaire des statuts établi sur papier libre est remis à chaque associé.
Article D223-2
Un modèle de statuts types de la société à responsabilité limitée dont l'associé unique, personne physique, assume personnellement la gérance figure en annexe 2-1 au présent livre.
Le centre de formalités des entreprises ou, dans le cas prévu au deuxième alinéa de l'article R. 123-5, le greffe du tribunal de commerce remet gratuitement ce modèle de statuts types au fondateur de la société.
Il l'informe de ce que ces statuts types s'appliquent à moins qu'il n'ait été joint des statuts différents lors de la demande d'immatriculation de la société.
Article R223-3
Dans les huit jours de leur réception, les fonds provenant de la libération des parts sociales sont déposés pour le compte de la société en formation et par les personnes qui les ont reçus à la Caisse des dépôts et consignations, chez un notaire ou dans un établissement de crédit.
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Mention de la libération des parts et du dépôt des fonds est portée dans les statuts.
Article R223-4
Le retrait des fonds est accompli par le mandataire de la société sur présentation du certificat du greffier attestant l'immatriculation de la société au registre du commerce et des sociétés.
Article R223-5
Pour l'application du deuxième alinéa de l'article L. 223-8 :
1° L'autorisation de retirer les fonds individuellement est donnée par le président du tribunal de commerce du lieu du siège social, statuant sur requête ;
2° Le mandataire justifie, en vue du retrait collectif des fonds, de l'autorisation écrite de tous les apporteurs.
Article R223-6
Le commissaire aux apports est choisi parmi les commissaires aux comptes inscrits sur la liste prévue à l'article L. 822-1 ou parmi les experts inscrits sur l'une des listes établies par les cours et tribunaux.
Il est désigné, le cas échéant, par ordonnance du président du tribunal de commerce statuant sur requête, notamment dans le cas prévu à l'article L. 223-33.
Article R223-7
Le document d'information mentionné à l'article L. 223-11 est établi préalablement à toute souscription. Il est remis ou envoyé à toute personne dont la souscription est sollicitée.
Il comprend toutes les mentions utiles à l'information des souscripteurs et au moins les renseignements suivants :
1° La dénomination sociale, précédée ou suivie immédiatement, conformément au deuxième alinéa de l'article L. 223-1, des mots " société à responsabilité limitée " ou des initiales " SARL " et suivie, le cas échéant, de son sigle, l'adresse du siège social, le montant du capital social ainsi que les mentions prévues aux 1° et 2° de l'article R. 123-237 ;
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2° L'objet social, indiqué sommairement ;
3° La date d'expiration normale de la société ;
4° La description de son activité et de ses perspectives d'évolution ;
5° Le nom du ou des gérants ;
6° Le nom des commissaires aux comptes et de leurs suppléants ainsi que la date de leur nomination ;
7° Le montant des capitaux propres, le montant total et la ventilation par échéance des engagements autres que ceux résultant de l'émission et, le cas échéant, les sûretés constituées pour garantir le remboursement des titres précédemment émis ;
8° Les faits significatifs, notamment les affaires contentieuses, pouvant avoir une incidence sur l'activité ou la situation financière de la société.
Article R223-8
Sont annexés au document d'information mentionné à l'article R. 223-7 :
1° Une copie du dernier bilan approuvé par l'assemblée générale des associés, certifiée par le gérant ;
2° Si ce bilan a été arrêté à une date antérieure de plus de dix mois à celle du début de l'émission, un état de la situation active et passive de la société datant de dix mois au plus et établi sous la responsabilité du gérant ;
3° Des renseignements sur la marche des affaires sociales depuis le début de l'exercice en cours ainsi que sur le précédent exercice si l'assemblée appelée à statuer sur celui-ci n'a pas encore été réunie.
Article R223-9
La notice mentionnée à l'article L. 223-11 est établie préalablement à toute souscription. Elle est remise ou envoyée à toute personne dont la souscription est sollicitée.
Elle comprend les renseignements suivants :
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1° Le but de l'émission ;
2° Le montant de l'émission ;
3° Le nombre d'obligations émises et leur valeur nominale, le produit brut et l'estimation du produit net de l'émission ;
4° Les conditions de l'émission, le taux, le mode de calcul et les modalités de paiement des intérêts, l'époque et les conditions de remboursement ;
5° Le cas échéant, les sûretés constituées pour garantir le remboursement des titres ainsi que les renseignements permettant d'identifier les garants et d'apprécier leur solvabilité ;
6° Les modalités de cession ainsi que, le cas échéant, de rachat des titres ;
7° L'existence et l'organisation de la masse des titulaires de titres ;
8° Le montant non amorti, au moment de l'émission, des obligations antérieurement émises ;
9° Le montant, au moment de l'émission, des emprunts obligataires garantis par la société et, le cas échéant, la fraction garantie de ces emprunts.
Article R223-10
L'article R. 228-60, sauf en tant qu'il détermine les conditions d'application du deuxième alinéa de l'article L. 228-51, et les articles R. 228-61 à R. 228-64 sont applicables aux représentants de la masse des obligataires.
Les articles R. 228-65 à R. 228-69 et R. 228-72 à R. 228-80 sont applicables aux assemblées d'obligataires.
Les articles R. 228-81 à R. 228-83 sont applicables aux sûretés constituées pour garantir le remboursement des obligations.
Les articles R. 228-84 à R. 228-86 sont applicables en cas de procédure de sauvegarde ou de redressement ou liquidation judiciaire.
Article R223-11
La notification du projet de cession ou de nantissement de parts sociales, prévue au deuxième alinéa de l'article L. 223-14 et à l'article L. 223-15, est faite par acte extrajudiciaire ou par lettre
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recommandée avec demande d'avis de réception.
La désignation de l'expert prévue à l'article 1843-4 du code civil est faite par le président du tribunal de commerce ; celui-ci statue par ordonnance sur requête dans le cas prévu au troisième alinéa de l'article L. 223-14 et par ordonnance de référé dans le cas prévu au quatrième alinéa du même article. Ces ordonnances ne sont pas susceptibles de recours.
Article R223-12
Dans le délai de huit jours à compter de la notification qui lui a été faite en application de l'article R. 223-11, le gérant convoque l'assemblée des associés pour qu'elle délibère sur le projet de cession des parts sociales ou, si les statuts le permettent, consulte les associés par écrit sur ce projet.
La décision de la société est notifiée au cédant par lettre recommandée avec demande d'avis de réception.
Article R223-13
La cession de parts sociales est soumise aux formalités de publicité prévue par l'article R. 221-9.
Article R223-14
Tout associé a le droit, à toute époque, d'obtenir, au siège social, la délivrance d'une copie certifiée conforme des statuts en vigueur au jour de la demande.
La société annexe à ce document la liste des gérants et, le cas échéant, des commissaires aux comptes en exercice et ne peut, pour cette délivrance, exiger le paiement d'une somme supérieure à 0,30 Euros.
Article R223-15
Tout associé a le droit, à toute époque, de prendre par lui-même connaissance des documents suivants au siège social : bilans, comptes de résultats, annexes, inventaires, rapports soumis aux assemblées et procès-verbaux de ces assemblées concernant les trois derniers exercices. Sauf en ce qui concerne l'inventaire, le droit de prendre connaissance emporte celui de prendre copie.
A cette fin, il peut se faire assister d'un expert inscrit sur une des listes établies par les cours et tribunaux.
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Article R223-16
Le gérant avise le commissaire aux comptes, s'il en existe un, des conventions mentionnées à l'article L. 223-19, dans le délai d'un mois à compter de la conclusion de ces conventions.
Lorsque l'exécution de conventions conclues au cours d'exercices antérieurs a été poursuivie au cours du dernier exercice, le commissaire aux comptes est informé de cette situation dans le délai d'un mois à compter de la clôture de l'exercice.
Article R223-17
Le rapport prévu au premier alinéa de l'article L. 223-19 contient :
1° L'énumération des conventions soumises à l'approbation de l'assemblée des associés ;
2° Le nom des gérants ou associés intéressés ;
3° La nature et l'objet de ces conventions ;
4° Les modalités essentielles de ces conventions, notamment l'indication des prix ou tarifs pratiqués, des ristournes et commissions consenties, des délais de paiement accordés, des intérêts stipulés, des sûretés conférées et, le cas échéant, de toutes autres indications permettant aux associés d'apprécier l'intérêt qui s'attachait à la conclusion des conventions analysées ;
5° L'importance des fournitures livrées ou des prestations de service fournies ainsi que le montant des sommes versées ou reçues au cours de l'exercice en exécution des conventions mentionnées au deuxième alinéa de l'article R. 223-16.
Article R223-18
Les comptes annuels, le rapport de gestion, le texte des résolutions proposées, ainsi que, le cas échéant, les comptes consolidés, le rapport sur la gestion du groupe et les rapports du commissaire aux comptes sur les comptes annuels et les comptes consolidés sont adressés aux associés quinze jours au moins avant la date de l'assemblée prévue par l'article L. 223-26.
Pendant le délai de quinze jours qui précède l'assemblée, l'inventaire est tenu, au siège social, à la disposition des associés, qui ne peuvent en prendre copie.
Article R223-19
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En cas de convocation d'une assemblée autre que celle prévue au premier alinéa de l'article L. 223-26, le texte des résolutions proposées, le rapport des gérants ainsi que, le cas échéant, celui des commissaires aux comptes sont adressés aux associés quinze jours au moins avant la date de l'assemblée.
En outre, pendant le délai de quinze jours qui précède l'assemblée les mêmes documents sont tenus, au siège social, à la disposition des associés, qui peuvent en prendre connaissance ou copie.
Article R223-20
Les associés sont convoqués, quinze jours au moins avant la réunion de l'assemblée, par lettre recommandée. Celle-ci indique l'ordre du jour. Toutefois, lorsque l'assemblée est convoquée, en raison du décès du gérant unique, par le commissaire aux comptes ou un associé, conformément aux dispositions du cinquième alinéa de l'article L. 223-27, le délai est réduit à huit jours.
Sous réserve des questions diverses, qui ne doivent présenter qu'une minime importance, les questions inscrites à l'ordre du jour sont libellées de telle sorte que leur contenu et leur portée apparaissent clairement, sans qu'il y ait lieu de se reporter à d'autres documents.
Le mandataire chargé de convoquer l'assemblée dans le cas prévu par le quatrième alinéa de l'article L. 223-27 est désigné par ordonnance du président du tribunal de commerce statuant en référé.
Article R223-20-1
Afin de garantir, en vue de l'application du troisième alinéa de l'article L. 223-27, l'identification et la participation effective à l'assemblée des associés y participant par des moyens de visioconférence ou de télécommunication, ces moyens transmettent au moins la voix des participants et satisfont à des caractéristiques techniques permettant la retransmission continue et simultanée des délibérations. Les sociétés dont les statuts permettent aux associés de voter aux assemblées par des moyens électroniques de télécommunication aménagent un site exclusivement consacré à cette fin. Les associés ne peuvent accéder à ce site qu'après s'être identifiés au moyen d'un code fourni préalablement à la tenue de l'assemblée. Les associés ne peuvent participer aux débats par conférence téléphonique et exercer leurs droits de vote qu'après s'être identifiés au moyen d'un code fourni préalablement à la tenue de l'assemblée.
Article R223-21
Le mandat de représentation d'un associé est donné pour une seule assemblée. Il peut cependant être donné pour deux assemblées tenues le même jour ou dans un délai de sept jours.
Le mandat donné pour une assemblée vaut pour les assemblées successives convoquées avec le même ordre du jour.
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Article R223-22
En cas de consultation écrite, le texte des résolutions proposées ainsi que les documents nécessaires à l'information des associés sont adressés à chacun de ceux-ci par lettre recommandée.
Les associés disposent d'un délai minimal de quinze jours, à compter de la date de réception des projets de résolution, pour émettre leur vote par écrit.
Article R223-23
L'assemblée des associés est présidée par le gérant ou par l'un des gérants. Si aucun des gérants n'est associé ou en cas de décès de l'associé-gérant unique, elle est présidée par l'associé présent et acceptant qui possède ou représente le plus grand nombre de parts sociales.
Si deux associés qui possèdent ou représentent le même nombre de parts sont acceptants, la présidence de l'assemblée est assurée par le plus âgé.
Article R223-24
Toute délibération de l'assemblée des associés est constatée par un procès-verbal qui indique la date et le lieu de réunion, les nom, prénoms et qualité du président, les nom et prénoms des associés présents, réputés présents au sens du troisième alinéa de l'article L. 223-27 ou représentés avec l'indication du nombre de parts sociales détenues par chacun, les documents et rapports soumis à l'assemblée, un résumé des débats, le texte des résolutions mises au voix et le résultat des votes. Ce procès-verbal fait état de la survenance éventuelle d'un incident technique relatif à la visioconférence ou à la télécommunication électronique lorsqu'il a perturbé le déroulement de l'assemblée.
En cas de consultation écrite, il en est fait mention dans le procès-verbal, auquel est annexée la réponse de chaque associé.
Les procès-verbaux sont établis et signés par les gérants et, le cas échéant, par le président de séance. Les dispositions des articles R. 221-3 et R. 221-4 leur sont applicables.
Article R223-25
Dans les sociétés qui comportent une seule personne et dont l'associé unique n'est pas le seul gérant, et en ce qui concerne les décisions d'approbation des comptes prises par l'associé unique en lieu et place de l'assemblée, le rapport de gestion, les comptes et, le cas échéant, le rapport des commissaires aux comptes sont adressés par le gérant à l'associé unique un mois au moins avant l'expiration du délai prévu au deuxième alinéa de l'article L. 223-31. Pendant ce délai, l'inventaire est tenu au siège social à la disposition de l'associé unique.
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Article R223-26
Chaque décision prise par l'associé unique en lieu et place de l'assemblée est consignée par lui sur le registre prévu au troisième alinéa de l'article L. 223-31. Le registre est tenu au siège social. Il est coté et paraphé, soit par un juge du tribunal de commerce, soit par un juge du tribunal d'instance, soit par le maire de la commune du siège social ou un adjoint du maire, dans la forme ordinaire et sans frais. La certification des copies ou extraits du registre est faite conformément aux dispositions de l'article R. 221-4.
Les conventions mentionnées à l'article L. 223-19 sont portées au registre dans les mêmes conditions.
Pour l'application du deuxième alinéa de l'article L. 223-31, lorsque l'associé unique est seul gérant, il porte au registre, dans les mêmes conditions, le récépissé du dépôt au registre du commerce et des sociétés du rapport de gestion, de l'inventaire et des comptes annuels.
Article R223-27
Les dispositions de l'article R. 221-5 sont applicables à la désignation ou à la nomination d'un commissaire aux comptes dans les sociétés à responsabilité limitée.
Article R223-28
Les comptes annuels, le rapport de gestion et, le cas échéant, les comptes consolidés et le rapport sur la gestion du groupe sont tenus, au siège social, à la disposition des commissaires aux comptes un mois au moins avant, selon le cas :
1° La convocation de l'assemblée prévue à l'article L. 223-26 ;
2° La date limite prévue pour leur envoi à l'associé unique par l'article R. 223-25 ;
3° Le dépôt au registre du commerce et des sociétés, par l'associé unique seul gérant de la société, des documents mentionnés au deuxième alinéa de l'article L. 223-31.
Article R223-29
Le gérant répond par écrit dans le délai d'un mois aux questions qui lui sont posées en application de l'article L. 223-36. Dans le même délai, il transmet copie de la question et de sa réponse au commissaire aux comptes.
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Article R223-30
L'expert chargé de présenter un rapport sur une ou plusieurs opérations de gestion dans les conditions prévues au premier alinéa de l'article L. 223-37 est désigné par le président du tribunal de commerce statuant en la forme des référés, après que le greffier a convoqué le gérant à l'audience par lettre recommandée avec demande d'avis de réception.
La demande d'expertise du procureur de la République est présentée par requête. Le greffier informe le procureur de la République de la date de l'audience.
Le rapport d'expertise est déposé au greffe. Le greffier en assure la communication.
Article R223-31
S'ils représentent au moins le dixième du capital social, des associés peuvent, dans un intérêt commun, charger à leurs frais un ou plusieurs d'entre eux de les représenter pour soutenir, tant en demande qu'en défense, l'action sociale contre les gérants.
Le retrait en cours d'instance d'un ou plusieurs des associés mentionnés à l'alinéa précédent, soit qu'ils aient perdu la qualité d'associé, soit qu'ils se soient volontairement désistés, est sans effet sur la poursuite de l'instance.
Article R223-32
Lorsque l'action sociale est intentée par un ou plusieurs associés, agissant soit individuellement, soit dans les conditions prévues à l'article R. 223-31, le tribunal ne peut statuer que si la société a été régulièrement mise en cause par l'intermédiaire de ses représentants légaux.
Le tribunal peut désigner un mandataire ad hoc pour représenter la société dans l'instance, lorsqu'il existe un conflit d'intérêt entre celle-ci et ses représentants légaux.
Article R223-33
Le projet de réduction du capital est communiqué aux commissaires aux comptes, s'il en existe, quarante-cinq jours au moins avant la date de réunion de l'assemblée des associés appelée à statuer sur ce projet.
Article R223-34
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Lorsque la réduction du capital a été décidée dans les conditions prévues au quatrième alinéa de l'article L. 223-34, l'achat des parts sociales est réalisé dans le délai de trois mois à compter de l'expiration du délai d'opposition prévu à l'article R. 223-35. Cet achat emporte l'annulation des parts.
Article R223-35
Le délai d'opposition des créanciers à la réduction du capital est d'un mois à compter de la date du dépôt, au greffe du tribunal de commerce, du procès-verbal de la délibération qui a décidé la réduction.
L'opposition est signifiée à la société par acte extrajudiciaire et portée devant le tribunal de commerce.
Article R223-36
Dans le cas où, du fait de pertes constatées dans les documents comptables, les capitaux propres de la société deviennent inférieurs à la moitié du capital social, la décision des associés prévue à l'article L. 223-42 est publiée dans un journal habilité à recevoir les annonces légales dans le département du siège social, déposée au greffe du tribunal de commerce du lieu de ce siège et inscrite au registre du commerce et des sociétés.
Chapitre IV : Dispositions générales applicables aux sociétés par actions.
Article R224-1
Si les statuts sont établis par acte sous seing privé, il est dressé autant d'originaux qu'il est nécessaire pour le dépôt d'un exemplaire au siège social et l'exécution des diverses formalités requises.
Article R224-2
Outre les mentions énumérées à l'article L. 210-2, et sans préjudice de toutes autres dispositions utiles, les statuts de la société contiennent les indications suivantes :
1° Pour chaque catégorie d'actions émises, le nombre d'actions et la nature des droits particuliers
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attachés à celles-ci et, selon le cas, la part de capital social qu'elle représente ou la valeur nominale des actions qui la composent ;
2° La forme, soit exclusivement nominative, soit nominative ou au porteur, des actions ;
3° En cas de restriction à la libre négociation ou cession des actions, les conditions particulières auxquelles est soumis l'agrément des cessionnaires ;
4° L'identité des apporteurs en nature, l'évaluation de l'apport effectué par chacun de ceux-ci et le nombre d'actions remises en contrepartie de l'apport ;
5° L'identité des bénéficiaires d'avantages particuliers et la nature de ceux-ci ;
6° Les stipulations relatives à la composition, au fonctionnement et aux pouvoirs des organes de la société ;
7° Les dispositions relatives à la répartition du résultat, à la constitution de réserves et à la répartition du boni de liquidation ;
8° L'identité de toutes personnes physiques ou morales qui ont signé ou au nom de qui ont été signés les statuts ou le projet de statuts.
Article R224-3
Pour la mise en oeuvre des dispositions de l'article L. 224-3, les commissaires à la transformation sont désignés et accomplissent leur mission dans les conditions prévues à l'article R. 225-7.
Le rapport des commissaires à la transformation atteste que le montant des capitaux propres est au moins égal au capital social. Il est tenu au siège social à la disposition des associés huit jours au moins avant la date de l'assemblée appelée à statuer sur la transformation. En cas de consultation écrite, le texte du rapport est adressé à chacun des associés et joint au texte des résolutions proposées.
Chapitre V : Des sociétés anonymes.
Section 1 : De la constitution des sociétés anonymes.
Sous-section 1 : De la constitution avec offre au public.
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Article R225-1
La publicité prescrite par les lois et règlements ne constitue pas, par elle-même, une offre au public au sens des articles L. 411-1 et L. 412-1 du code monétaire et financier.
Article R225-2
L'exemplaire du projet de statuts déposé au greffe du tribunal de commerce du lieu du siège social est établi sur papier libre et revêtu de la signature des fondateurs. Il est communiqué à tout requérant qui peut en prendre connaissance ou obtenir, à ses frais, la délivrance d'une copie.
Article R225-3
La notice prévue par l'alinéa deuxième de l'article L. 225-2 est publiée au Bulletin des annonces légales obligatoires, avant le début des opérations de souscription et préalablement à toute mesure de publicité.
Elle contient les indications suivantes :
1° La dénomination sociale de la société à constituer, suivie le cas échéant de son sigle ;
2° La forme de la société ;
3° Le montant du capital social à souscrire ;
4° L'adresse prévue du siège social ;
5° L'objet social, indiqué sommairement ;
6° La durée prévue de la société ;
7° La date et le lieu du dépôt du projet de statuts ;
8° Le nombre des actions à souscrire contre numéraire et la somme immédiatement exigible comprenant, le cas échéant, la prime d'émission ;
9° La valeur nominale des actions à émettre, que cette valeur figure ou non dans les statuts, distinction étant faite entre chaque catégorie, ainsi que les droits particuliers attachés aux actions de
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préférence ;
10° La description sommaire des apports en nature, leur évaluation globale et leur mode de rémunération, avec indication du caractère provisoire de cette évaluation et de ce mode de rémunération ;
11° Les avantages particuliers stipulés dans le projet de statuts au profit de toute personne ;
12° Les conditions d'admission aux assemblées d'actionnaires et d'exercice du droit de vote, avec, le cas échéant, indication des dispositions relatives à l'attribution du droit de vote double ;
13° Les clauses relatives à l'agrément des cessionnaires d'actions ;
14° Les dispositions relatives à la répartition du résultat, à la constitution de réserves et à la répartition du boni de liquidation ;
15° Le nom et la résidence du notaire ou la dénomination sociale et le siège de l'établissement de crédit qui recevra les fonds provenant de la souscription ; le cas échéant, l'indication que les fonds seront déposés à la Caisse des dépôts et consignations ;
16° Le délai ouvert pour la souscription, avec l'indication de la possibilité de clôture anticipée, en cas de souscription intégrale avant l'expiration de ce délai ;
17° Les modalités de convocation de l'assemblée générale constitutive et le lieu de réunion.
La notice est signée par les fondateurs, qui indiquent soit leur nom, prénom usuel, domicile et nationalité, soit leur dénomination, leur forme, leur siège social et le montant de leur capital social.
Article R225-4
Les prospectus et documents informant le public de l'émission d'actions reproduisent les énonciations de la notice prévue à l'article R. 225-3 et contiennent la mention de l'insertion de cette notice au Bulletin des annonces légales obligatoires avec référence au numéro dans lequel elle a été publiée. Ils exposent en outre sommairement les projets des fondateurs quant à l'emploi des fonds provenant de la libération des actions souscrites.
Les annonces dans les journaux reproduisent les mêmes énonciations ou au moins un extrait de ces énonciations, avec référence à la notice et indication du numéro du Bulletin des annonces légales obligatoires dans lequel elle a été publiée.
Article R225-5
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Le bulletin de souscription est daté et signé par le souscripteur ou son mandataire qui écrit en toutes lettres le nombre de titres souscrits. Une copie sur papier libre lui est remise.
Le bulletin de souscription énonce :
1° La dénomination sociale de la société à constituer, suivie le cas échéant de son sigle ;
2° La forme de la société ;
3° Le montant du capital social à souscrire ;
4° L'adresse prévue du siège social ;
5° L'objet social, indiqué sommairement ;
6° La date et le lieu du dépôt du projet de statuts ;
7° Le cas échéant, la portion de capital à souscrire en numéraire et celle représentée par les apports en nature ;
8° Les modalités d'émission des actions souscrites en numéraire ;
9° Le nom ou la dénomination sociale et l'adresse de la personne qui reçoit les fonds ;
10° Les nom, prénom usuel et domicile du souscripteur et le nombre des titres souscrits par lui ;
11° La mention de la remise au souscripteur d'une copie du bulletin de souscription ;
12° La date de la publication au Bulletin des annonces légales obligatoires de la notice prévue à l'article R. 225-3.
Article R225-6
Les fonds provenant des souscriptions en numéraire et la liste comportant les nom, prénom usuel et domicile des souscripteurs, avec l'indication des sommes versées par chacun d'eux, sont déposés, pour le compte de la société en formation et par les personnes qui ont reçus les fonds, soit à la Caisse des dépôts et consignations, soit chez un notaire, soit auprès d'un établissement de crédit ou d'un intermédiaire mentionné aux 2° à 7° de l'article L. 542-1 du code monétaire et financier, selon les indications portées à la notice.
Ce dépôt est fait dans le délai de huit jours à compter de la réception des fonds, à moins que ceux-ci
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ne soient reçus par des établissements de crédit ou des intermédiaires mentionnés à l'alinéa précédent.
Le dépositaire des fonds est tenu, jusqu'au retrait de ceux-ci, de communiquer la liste prévue au premier alinéa à tout souscripteur qui justifie de sa souscription. Le requérant peut en prendre connaissance et obtenir, à ses frais, la délivrance d'une copie.
Article R225-7
Les commissaires aux apports sont choisis parmi les commissaires aux comptes inscrits sur la liste prévue à l'article L. 822-1 ou parmi les experts inscrits sur une des listes établies par les cours et tribunaux.
Ils sont désignés par le président du tribunal de commerce, statuant sur requête.
Ils peuvent se faire assister, dans l'accomplissement de leur mission, par un ou plusieurs experts de leur choix. Les honoraires de ces experts sont à la charge de la société.
Article R225-8
Le rapport des commissaires aux apports décrit chacun des apports, indique quel mode d'évaluation a été adopté et pourquoi il a été retenu et affirme que la valeur des apports correspond au moins à la valeur nominale des actions à émettre, augmentée éventuellement de la prime d'émission.
Article R225-9
Le rapport des commissaires aux apports est déposé huit jours au moins avant la date de l'assemblée générale constitutive à l'adresse prévue du siège social indiqué dans le bulletin de souscription et au greffe du tribunal de commerce dans le ressort duquel est situé ce siège.
Il est tenu à la disposition des souscripteurs qui peuvent en prendre connaissance ou obtenir la délivrance d'une copie intégrale ou partielle.
Article R225-10
L'assemblée générale constitutive est convoquée au lieu indiqué par la notice prévue à l'article R. 225-3.
L'avis de convocation indique la dénomination sociale et la forme de la société, l'adresse prévue du siège social, le montant du capital social, les jour, heure, lieu et ordre du jour de l'assemblée.
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Il est inséré au Bulletin des annonces légales obligatoires et dans un journal habilité à recevoir les annonces légales dans le département du siège social, huit jours au moins avant la date de l'assemblée.
Article R225-11
Le retrait des fonds provenant des souscriptions en numéraire est effectué par le mandataire de la société, sur présentation du certificat du greffier attestant l'immatriculation de la société au registre du commerce et des sociétés.
Article R225-12
La société est réputée n'avoir pas été constituée dans le délai fixé par le deuxième alinéa de l'article L. 225-11, lorsque les formalités prévues au deuxième alinéa de l'article L. 225-7 n'ont pas été accomplies avant l'expiration dudit délai.
Dans ce cas, le mandataire chargé de retirer les fonds pour les restituer aux souscripteurs est nommé par le président du tribunal de commerce du lieu du siège social, statuant en référé.
Sous-section 2 : De la constitution sans offre au public.
Article R225-13
Lorsque la société est constituée sans offre au public, sont seules applicables à la constitution de la société les dispositions des articles R. 225-6, R. 225-7, R. 225-8 et R. 225-11.
Article R225-14
Le rapport des commissaires aux apports est tenu, à l'adresse prévue du siège social, à la disposition des futurs actionnaires, qui peuvent en prendre copie, trois jours au moins avant la date de la signature des statuts.
Section 2 : De la direction et de l'administration des sociétés anonymes.
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Sous-section 1 : Du conseil d'administration et de la direction générale.
Article R225-15
Les fonctions d'un administrateur prennent fin à l'issue de la réunion de l'assemblée générale ordinaire des actionnaires ayant statué sur les comptes de l'exercice écoulé et tenue dans l'année au cours de laquelle expire le mandat de cet administrateur.
Article R225-16
Le mandat du représentant permanent désigné par une personne morale nommée administrateur lui est donné pour la durée du mandat de cette dernière.
Si la personne morale révoque le mandat de son représentant permanent, elle notifie sans délai à la société, par lettre recommandée, cette révocation ainsi que l'identité de son nouveau représentant permanent. Il en est de même en cas de décès ou de démission du représentant permanent.
Article R225-17
La désignation du représentant permanent ainsi que la cessation de son mandat sont soumises aux mêmes formalités de publicité que s'il était administrateur en son nom propre.
Article R225-18
Le mandataire prévu à l'article L. 225-24 est désigné par le président du tribunal de commerce, statuant sur requête.
Article R225-19
Sauf clause contraire des statuts, un administrateur peut donner, par écrit, mandat à un autre administrateur de le représenter à une séance du conseil d'administration.
Chaque administrateur ne peut disposer, au cours d'une même séance, que d'une seule des procurations reçues par application de l'alinéa précédent.
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Les dispositions des alinéas précédents sont applicables au représentant permanent d'une personne morale administrateur.
Article R225-20
Il est tenu un registre de présence qui est signé par les administrateurs participant à la séance du conseil d'administration et qui mentionne le nom des administrateurs réputés présents au sens du troisième alinéa de l'article L. 225-37.
Article R225-21
Afin de garantir, conformément aux dispositions du troisième alinéa de l'article L. 225-37, l'identification et la participation effective à la réunion du conseil des administrateurs y participant par des moyens de visioconférence ou de télécommunication, ces moyens transmettent au moins la voix des participants et satisfont à des caractéristiques techniques permettant la retransmission continue et simultanée des délibérations.
Article R225-22
Les délibérations du conseil d'administration sont constatées par des procès-verbaux établis sur un registre spécial tenu au siège social et coté et paraphé soit par un juge du tribunal de commerce, soit par un juge du tribunal d'instance, soit par le maire de la commune du siège social ou un adjoint au maire, dans la forme ordinaire et sans frais.
Toutefois, les procès-verbaux peuvent être établis sur des feuilles mobiles numérotées sans discontinuité, paraphées dans les conditions prévues à l'alinéa précédent et revêtues du sceau de l'autorité qui les a paraphées. Dès qu'une feuille a été remplie, même partiellement, elle est jointe à celles précédemment utilisées. Toute addition, suppression, substitution ou interversion de feuilles est interdite.
Article R225-23
Le procès-verbal de la séance indique le nom des administrateurs présents, réputés présents au sens de l'article L. 225-37, excusés ou absents. Il fait état de la présence ou de l'absence des personnes convoquées à la réunion du conseil d'administration en vertu d'une disposition légale et de la présence de toute autre personne ayant assisté à tout ou partie de la réunion. Il fait également état de la survenance éventuelle d'un incident technique relatif à un moyen de visioconférence ou de télécommunication lorsqu'il a perturbé le déroulement de la séance.
Le procès-verbal est revêtu de la signature du président de séance et d'au moins un administrateur.
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En cas d'empêchement du président de séance, il est signé par deux administrateurs au moins.
Article R225-24
Les copies ou extraits de procès-verbaux des délibérations sont certifiés par le président du conseil d'administration, le directeur général, les directeurs généraux délégués, l'administrateur délégué temporairement dans les fonctions de président ou un fondé de pouvoir habilité à cet effet.
Au cours de la liquidation de la société, ces copies ou extraits sont certifiés par un seul liquidateur.
Article R225-25
Il est suffisamment justifié du nombre des administrateurs en exercice ainsi que de leur présence ou de leur représentation à une séance du conseil d'administration par la production d'une copie ou d'un extrait du procès-verbal.
Article R225-26
Les personnes désignées pour être administrateurs sont habilitées, dès leur nomination, à choisir l'une des modalités d'exercice de la direction générale prévues à l'article L. 225-51-1 et à désigner le président du conseil d'administration, le directeur général et, le cas échéant, les directeurs généraux délégués.
Article R225-27
L'extrait du procès-verbal contenant la décision du conseil d'administration relative au choix de l'une des deux modalités d'exercice de la direction générale prévues à l'article L. 225-51-1 fait l'objet d'un avis inséré dans un journal habilité à recevoir les annonces légales dans le département du siège social.
Article R225-28
Le conseil d'administration peut, dans la limite d'un montant total qu'il fixe, autoriser le directeur général à donner des cautions, avals ou garanties au nom de la société. Cette autorisation peut également fixer, par engagement, un montant au-delà duquel la caution, l'aval ou la garantie de la société ne peut être donné. Lorsqu'un engagement dépasse l'un ou l'autre des montants ainsi fixés, l'autorisation du conseil d'administration est requise dans chaque cas.
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La durée des autorisations prévues à l'alinéa précédent ne peut être supérieure à un an, quelle que soit la durée des engagements cautionnés, avalisés ou garantis.
Par dérogation aux dispositions du premier alinéa, le directeur général peut être autorisé à donner, à l'égard des administrations fiscales et douanières, des cautions, avals ou garanties au nom de la société, sans limite de montant.
Le directeur général peut déléguer le pouvoir qu'il a reçu en application des alinéas précédents.
Si les cautions, avals ou garanties ont été données pour un montant total supérieur à la limite fixée pour la période en cours, le dépassement ne peut être opposé aux tiers qui n'en ont pas eu connaissance, à moins que le montant de l'engagement invoqué n'excède, à lui seul, l'une des limites fixées par la décision du conseil d'administration prise en application du premier alinéa.
Article R225-29
Le conseil d'administration peut conférer à un ou plusieurs de ses membres ou à des tiers, actionnaires ou non, tous mandats spéciaux pour un ou plusieurs objets déterminés.
Il peut décider la création de comités chargés d'étudier les questions que lui-même ou son président soumet, pour avis, à leur examen. Il fixe la composition et les attributions des comités qui exercent leur activité sous sa responsabilité.
Article R225-30
Le président du conseil d'administration avise les commissaires aux comptes des conventions et engagements autorisés en application des articles L. 225-22-1, L. 225-38 ou L. 225-42-1, dans le délai d'un mois à compter de la conclusion de ces conventions et engagements.
Lorsque l'exécution de conventions et engagements conclus et autorisés au cours d'exercices antérieurs a été poursuivie au cours du dernier exercice, les commissaires aux comptes sont informés de cette situation dans le délai d'un mois à compter de la clôture de l'exercice.
Article R225-31
Le rapport des commissaires aux comptes prévu au troisième alinéa de l'article L. 225-40 contient :
1° L'énumération des conventions et engagements soumis à l'approbation de l'assemblée générale ;
2° Le nom des administrateurs intéressés ;
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3° Le nom du directeur général ou des directeurs généraux délégués intéressés ;
4° La désignation du ou des actionnaires intéressés disposant d'une fraction des droits de vote supérieure à 10 % et, s'il s'agit d'une société actionnaire, de la société la contrôlant au sens de l'article L. 233-3 ;
5° La nature et l'objet de ces conventions et engagements ;
6° Les modalités essentielles de ces conventions et engagements, notamment l'indication des prix ou tarifs pratiqués, des ristournes et commissions consenties, des délais de paiement accordés, des intérêts stipulés, des sûretés conférées, de la nature, du montant et des modalités d'octroi de chacun des avantages ou indemnités mentionnés aux articles L. 225-22-1 et L. 225-42-1 et, le cas échéant, toutes autres indications permettant aux actionnaires d'apprécier l'intérêt qui s'attachait à la conclusion des conventions et engagements analysés ;
7° L'importance des fournitures livrées ou des prestations de service fournies ainsi que le montant des sommes versées ou reçues au cours de l'exercice, en exécution des conventions et engagements mentionnés au deuxième alinéa de l'article R. 225-30.
Article R225-32
Le président du conseil d'administration communique aux membres du conseil d'administration et aux commissaires aux comptes, au plus tard le jour du conseil arrêtant les comptes de l'exercice écoulé, la liste et l'objet des conventions mentionnées à l'article L. 225-39.
Article R225-33
Le conseil d'administration répartit librement entre ses membres les sommes globales allouées aux administrateurs sous forme de jetons de présence ; il peut notamment allouer aux administrateurs, membres des comités prévus par le deuxième alinéa de l'article R. 225-29, une part supérieure à celle des autres administrateurs.
Le conseil d'administration peut autoriser le remboursement des frais de voyage et de déplacement et des dépenses engagées par les administrateurs dans l'intérêt de la société.
Article R225-34
Le conseil d'administration détermine la rémunération de la personne déléguée temporairement dans les fonctions du président pendant la durée de la délégation et, le cas échéant, des membres non administrateurs des comités prévus par le deuxième alinéa de l'article R. 225-29.
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Article R225-34-1
L'autorisation mentionnée au troisième alinéa de l'article L. 225-42-1 est publiée sur le site internet de la société concernée dans un délai maximum de cinq jours suivant la réunion du conseil d'administration au cours de laquelle elle a été délivrée. Elle y est consultable pendant toute la durée des fonctions du bénéficiaire. La décision mentionnée au cinquième alinéa de l'article L. 225-42-1 se prononçant sur le respect des conditions prévues au deuxième alinéa de ce même article et sur le versement est publiée sur le site internet de la société concernée dans un délai maximum de cinq jours suivant la réunion du conseil d'administration au cours de laquelle elle a été prise. Elle y est consultable au moins jusqu'à la prochaine assemblée générale ordinaire.
Sous-section 2 : Du directoire et du conseil de surveillance.
Article R225-35
Le nombre des membres du directoire est fixé par les statuts ou, à défaut, par le conseil de surveillance.
Article R225-36
Si un siège de membre du directoire est vacant, le conseil de surveillance le pourvoit dans le délai de deux mois.
A défaut, tout intéressé peut demander au président du tribunal de commerce, statuant en référé, de procéder à cette nomination, à titre provisoire. La personne ainsi nommée peut, à tout moment, être remplacée par le conseil de surveillance.
Article R225-37
Si un membre du conseil de surveillance est nommé au directoire, son mandat au conseil prend fin dès son entrée en fonction.
Article R225-38
Les personnes désignées pour être membres du conseil de surveillance sont habilitées, dès leur nomination, à désigner les membres du directoire ou le directeur général unique.
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Article R225-39
Sauf clause contraire des statuts, les membres du directoire peuvent, avec l'autorisation du conseil de surveillance, répartir entre eux les tâches de la direction. Toutefois, cette répartition ne peut en aucun cas avoir pour effet de retirer au directoire son caractère d'organe assurant collégialement la direction de la société.
Article R225-40
Lorsqu'une opération exige l'autorisation du conseil de surveillance et que celui-ci la refuse, le directoire peut soumettre le différend à l'assemblée générale des actionnaires qui décide de la suite à donner au projet.
Article R225-41
Les fonctions d'un membre du conseil de surveillance prennent fin à l'issue de la réunion de l'assemblée générale ordinaire des actionnaires ayant statué sur les comptes de l'exercice écoulé et tenue dans l'année au cours de laquelle expire le mandat de ce membre.
Article R225-42
Le mandat de représentant permanent désigné par une personne morale nommée au conseil de surveillance lui est donné pour la durée du mandat de cette dernière.
Si la personne morale révoque le mandat de son représentant permanent, elle notifie sans délai à la société, par lettre recommandée, cette révocation ainsi que l'identité de son nouveau représentant permanent. Il en est de même en cas de décès ou de démission du représentant permanent.
Article R225-43
La désignation du représentant permanent ainsi que la cessation de son mandat sont soumises aux mêmes formalités de publicité que s'il était membre du conseil de surveillance en son nom propre.
Article R225-44
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Le mandataire prévu à l'article L. 225-78 est désigné par le président du tribunal de commerce, statuant sur requête.
Article R225-45
Les statuts de la société déterminent les règles relatives à la convocation et aux délibérations du conseil de surveillance.
Toutefois, le président du conseil de surveillance convoque le conseil à une date qui ne peut être postérieure à quinze jours lorsqu'un membre au moins du directoire ou le tiers au moins des membres du conseil de surveillance lui présentent une demande motivée en ce sens.
Si la demande est restée sans suite, ses auteurs peuvent procéder eux-mêmes à la convocation, en indiquant l'ordre du jour de la séance.
Article R225-46
Sauf clause contraire des statuts, un membre du conseil de surveillance peut donner, par écrit, mandat à un autre membre de le représenter à une séance du conseil.
Chaque membre du conseil de surveillance ne peut disposer, au cours d'une même séance, que d'une seule des procurations reçues par application de l'alinéa précédent.
Les dispositions des alinéas précédents sont applicables au représentant permanent d'une personne morale membre du conseil de surveillance.
Article R225-47
Il est tenu un registre de présence qui est signé par les membres du conseil de surveillance participant à la séance du conseil et qui mentionne le nom des membres du conseil de surveillance réputés présents au sens du troisième alinéa de l'article L. 225-82.
Article R225-48
Les dispositions de l'article R. 225-21 s'appliquent aux moyens de visioconférence ou de télécommunication mentionnés au troisième alinéa de l'article L. 225-82.
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Article R225-49
Les délibérations du conseil de surveillance sont constatées par des procès-verbaux établis sur un registre spécial tenu au siège social et coté et paraphé soit par un juge du tribunal de commerce, soit par un juge du tribunal d'instance, soit par le maire de la commune du siège social ou un adjoint au maire, dans la forme ordinaire et sans frais.
Toutefois, les procès-verbaux peuvent être établis sur des feuilles mobiles numérotées sans discontinuité, paraphées dans les conditions prévues à l'alinéa précédent et revêtues du sceau de l'autorité qui les a paraphées. Dès qu'une feuille a été remplie, même partiellement, elle est jointe à celles précédemment utilisées. Toute addition, suppression, substitution ou interversion de feuilles est interdite.
Article R225-50
Le procès-verbal de la séance indique le nom des membres du conseil de surveillance présents, réputés présents au sens du troisième alinéa de l'article L. 225-82, excusés ou absents. Il fait état de la présence ou de l'absence des personnes convoquées à la réunion du conseil en vertu d'une disposition légale et de la présence de toute autre personne ayant assisté à tout ou partie de la réunion. Il fait également état de la survenance éventuelle d'un incident technique relatif à un moyen de visioconférence ou de télécommunication lorsqu'il a perturbé le déroulement de la séance.
Le procès-verbal est revêtu de la signature du président de séance et d'au moins un membre du conseil de surveillance. En cas d'empêchement du président de séance, il est signé par deux membres du conseil au moins.
Article R225-51
Les copies ou extraits de procès-verbaux des délibérations sont certifiés par le président du conseil de surveillance, le vice-président de ce conseil, un membre du directoire ou un fondé de pouvoir habilité à cet effet.
Au cours de la liquidation de la société, ces copies ou extraits sont certifiés par un seul liquidateur.
Article R225-52
Il est suffisamment justifié du nombre des membres du conseil de surveillance en exercice, ainsi que de leur présence ou de leur représentation à une séance du conseil, par la production d'une copie ou d'un extrait du procès-verbal.
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Article R225-53
Le conseil de surveillance peut, dans la limite d'un montant total qu'il fixe, autoriser le directoire à donner des cautions, avals ou garanties au nom de la société. Cette autorisation peut également fixer, par engagement, un montant au-delà duquel la caution, l'aval ou la garantie de la société ne peut être donné. Lorsqu'un engagement dépasse l'un ou l'autre des montants ainsi fixés, l'autorisation du conseil de surveillance est requise dans chaque cas.
La durée des autorisations prévues à l'alinéa précédent ne peut être supérieure à un an, quelle que soit la durée des engagements cautionnés, avalisés ou garantis.
Par dérogation aux dispositions du premier alinéa, le directoire peut être autorisé à donner, à l'égard des administrations fiscales et douanières, des cautions, avals ou garanties au nom de la société, sans limite de montant.
Le directoire peut déléguer le pouvoir qu'il a reçu en application des alinéas précédents.
Si des cautions, avals ou garanties ont été donnés pour un montant total ou supérieur à la limite fixée pour la période en cours, le dépassement ne peut être opposé aux tiers qui n'en ont pas eu connaissance, à moins que le montant de l'engagement invoqué n'excède, à lui seul, l'une des limites fixées par la décision du conseil de surveillance prise en application du premier alinéa.
Article R225-54
Le conseil de surveillance peut, dans la limite d'un montant qu'il fixe pour chaque opération, autoriser le directoire à céder des immeubles par nature, à céder totalement ou partiellement des participations et à constituer des sûretés. Lorsqu'une opération dépasse le montant ainsi fixé, l'autorisation du conseil de surveillance est requise dans chaque cas.
Le directoire peut déléguer le pouvoir qu'il a reçu en application de l'alinéa précédent.
L'absence d'autorisation est inopposable aux tiers, à moins que la société ne prouve que ceux-ci en avaient eu connaissance ou ne pouvaient l'ignorer.
Article R225-55
Le délai mentionné au cinquième alinéa de l'article L. 225-68 est de trois mois à compter de la clôture de l'exercice.
Article R225-56
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Le conseil de surveillance peut conférer à un ou plusieurs de ses membres tous mandats spéciaux pour un ou plusieurs objets déterminés.
Il peut décider la création en son sein de commissions dont il fixe la composition et les attributions et qui exercent leur activité sous sa responsabilité, sans que ces attributions puissent avoir pour objet de déléguer à une commission les pouvoirs qui sont attribués au conseil de surveillance lui-même par la loi ou les statuts ni pour effet de réduire ou de limiter les pouvoirs du directoire.
Article R225-57
Le président du conseil de surveillance avise les commissaires aux comptes des conventions et engagements autorisés en application des articles L. 225-79-1, L. 225-86 ou L. 225-90-1, dans le délai d'un mois à compter de la conclusion de ces conventions et engagements.
Lorsque l'exécution des conventions et engagements conclus et autorisés au cours d'exercices antérieurs a été poursuivie au cours du dernier exercice, les commissaires aux comptes sont informés de cette situation dans le délai d'un mois à compter de la clôture de l'exercice.
Article R225-58
Le rapport des commissaires aux comptes, prévu au troisième alinéa de l'article L. 225-88, contient :
1° L'énumération des conventions et engagements soumis à l'approbation de l'assemblée générale ;
2° Le nom des membres du conseil de surveillance ou du directoire intéressés ;
3° La désignation du ou des actionnaires intéressés disposant d'une fraction des droits de vote supérieure à 10 % et, s'il s'agit d'une société actionnaire, de la société la contrôlant au sens de l'article L. 233-3 ;
4° La nature et l'objet de ces conventions et engagements ;
5° Les modalités essentielles de ces conventions et engagements, notamment l'indication des prix ou tarifs pratiqués, des ristournes et commissions consenties, des délais de paiement accordés, des intérêts stipulés, des sûretés conférées, de la nature, du montant et des modalités d'octroi de chacun des avantages ou indemnités mentionnés aux articles L. 225-79-1 et L. 225-90-1 et, le cas échéant, toutes autres indications permettant aux actionnaires d'apprécier l'intérêt qui s'attachait à la conclusion des conventions et engagements analysés ;
6° L'importance des fournitures livrées ou des prestations de service fournies ainsi que le montant des sommes versées ou reçues au cours de l'exercice, en exécution des conventions et engagements
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mentionnés au deuxième alinéa de l'article R. 225-57.
Article R225-59
Le président du conseil de surveillance communique aux membres du conseil de surveillance et aux commissaires aux comptes, au plus tard le jour du conseil vérifiant et contrôlant les comptes de l'exercice écoulé, la liste et l'objet des conventions mentionnées à l'article L. 225-87.
Article R225-60
Le conseil de surveillance répartit librement entre ses membres les sommes globales allouées à ceux-ci sous forme de jetons de présence ; il peut notamment allouer aux membres du conseil qui font partie des commissions prévues par le deuxième alinéa de l'article R. 225-56 une part supérieure à celle des autres.
Le conseil de surveillance peut autoriser le remboursement des frais de voyage et de déplacement et des dépenses engagées par ses membres dans l'intérêt de la société.
Article R225-60-1
L'autorisation mentionnée au troisième alinéa de l'article L. 225-90-1 est publiée sur le site internet de la société concernée dans un délai maximum de cinq jours suivant la réunion du conseil de surveillance au cours de laquelle elle a été délivrée. Elle y est consultable pendant toute la durée des fonctions du bénéficiaire. La décision mentionnée au cinquième alinéa de l'article L. 225-90-1 se prononçant sur le respect des conditions prévues au deuxième alinéa de ce même article et sur le versement est publiée sur le site internet de la société concernée dans un délai maximum de cinq jours suivant la réunion du conseil de surveillance au cours de laquelle elle a été prise. Elle y est consultable au moins jusqu'à la prochaine assemblée générale ordinaire.
Section 3 : Des assemblées d'actionnaires.
Article R225-61
Les sociétés dont les statuts permettent aux actionnaires de voter aux assemblées par des moyens électroniques de télécommunication aménagent un site exclusivement consacré à ces fins.
Article R225-62
Sous réserve des dispositions des articles R. 225-66 à R. 225-70, les statuts de la société fixent les
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règles de convocation des assemblées d'actionnaires.
Article R225-63
Les sociétés qui entendent recourir à la télécommunication électronique en lieu et place d'un envoi postal pour satisfaire aux formalités prévues aux articles R. 225-67, R. 225-68, R. 225-72, R. 225-74 et R. 225-88 recueillent au préalable par écrit l'accord des actionnaires intéressés qui indiquent leur adresse électronique. Ces derniers peuvent à tout moment demander expressément à la société par lettre recommandée avec demande d'avis de réception que le moyen de télécommunication susmentionné soit remplacé à l'avenir par un envoi postal.
Article R225-64
Le délai de six mois prévu pour la réunion de l'assemblée générale ordinaire par l'article L. 225-100 peut être prolongé, à la demande du conseil d'administration ou du directoire, selon le cas, par ordonnance du président du tribunal de commerce, statuant sur requête.
Article R225-65
Les actionnaires peuvent à leurs frais charger l'un d'entre eux de demander au président du tribunal de commerce statuant en référé la désignation du mandataire mentionné à l'article L. 225-103.
L'ordonnance fixe l'ordre du jour de l'assemblée.
Article R225-66
L'avis de convocation comporte la dénomination sociale, éventuellement suivie de son sigle, la forme de la société, le montant du capital social, l'adresse du siège social, les mentions prévues aux 1° et 2° de l'article R. 123-237, les jour, heure et lieu de l'assemblée, ainsi que sa nature, extraordinaire, ordinaire ou spéciale, et son ordre du jour.
Sous réserve des questions diverses qui ne doivent présenter qu'une minime importance, les questions inscrites à l'ordre du jour sont libellées de telle sorte que leur contenu et leur portée apparaissent clairement, sans qu'il y ait lieu de se reporter à d'autres documents. L'avis de convocation indique les conditions dans lesquelles les actionnaires peuvent voter par correspondance et les lieux et les conditions dans lesquelles ils peuvent obtenir les formulaires nécessaires et les documents qui y sont annexés et, le cas échéant, l'adresse électronique où peuvent être adressées les questions écrites.
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Article R225-67
L'avis de convocation est inséré dans un journal habilité à recevoir les annonces légales dans le département du siège social et, en outre, si les actions de la société sont admises aux négociations sur un marché réglementé ou si toutes ses actions ne revêtent pas la forme nominative, au Bulletin des annonces légales obligatoires.
Si toutes les actions de la société sont nominatives, les insertions prévues à l'alinéa précédent peuvent être remplacées par une convocation faite, aux frais de la société, par lettre simple ou recommandée adressée à chaque actionnaire. Cette convocation peut également être transmise par un moyen électronique de télécommunication mis en oeuvre dans les conditions mentionnées à l'article R. 225-63, à l'adresse indiquée par l'actionnaire.
Article R225-68
Les actionnaires titulaires de titres nominatifs depuis un mois au moins à la date de l'insertion de l'avis de convocation prévue au premier alinéa de l'article R. 225-67 sont convoqués à toute assemblée par lettre ordinaire. Sous la condition d'adresser à la société le montant des frais de recommandation, ils peuvent demander à être convoqués par lettre recommandée. Cette convocation peut également être transmise par un moyen électronique de télécommunication mis en oeuvre dans les conditions mentionnées à l'article R. 225-63, à l'adresse indiquée par l'actionnaire.
Tous les copropriétaires d'actions indivises sont convoqués dans les mêmes formes lorsque leurs droits sont constatés, dans le délai prévu à l'alinéa précédent, par une inscription nominative.
Lorsque les actions sont grevées d'un usufruit ou font l'objet d'un contrat de bail, le titulaire du droit de vote est convoqué dans les mêmes formes et sous les mêmes conditions.
Article R225-69
Le délai entre la date soit de l'insertion ou de la dernière des insertions contenant un avis de convocation, soit de l'envoi des lettres, soit de la transmission de la convocation par télécommunication électronique, et la date de l'assemblée est au moins de quinze jours sur première convocation et de six jours sur convocation suivante. Lorsque l'assemblée est convoquée en application des dispositions de l'article L. 233-32, ce délai est au moins de six jours sur première convocation et de quatre jours sur convocation suivante. En cas d'ajournement de l'assemblée par décision de justice, le juge peut fixer un délai différent.
Article R225-70
Lorsqu'une assemblée n'a pu délibérer régulièrement, faute du quorum requis, la deuxième
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assemblée est convoquée dans les formes prévues à l'article R. 225-67 et l'avis de convocation rappelle la date de la première.
Il en est de même pour la convocation d'une assemblée générale extraordinaire ou d'une assemblée spéciale prorogée dans les conditions prévues au deuxième alinéa de l'article L. 225-96 et au troisième alinéa de l'article L. 225-99.
Article R225-71
La demande d'inscription de projets de résolution à l'ordre du jour de l'assemblée, par des actionnaires représentant au moins 5 % du capital social, est adressée au siège social par lettre recommandée avec demande d'avis de réception ou par télécommunication électronique.
Toutefois, lorsque le capital de la société est supérieur à 750 000 euros, le montant du capital à représenter en application de l'alinéa précédent est, selon l'importance de ce capital, réduit ainsi qu'il suit :
a) 4 % pour les 750 000 premiers euros ;
b) 2, 50 % pour la tranche de capital comprise entre 750 000 et 7 500 000 euros ;
c) 1 % pour la tranche de capital comprise entre 7 500 000 et 15 000 000 euros ;
d) 0, 50 % pour le surplus du capital.
La demande est accompagnée du texte des projets de résolution, qui peuvent être assortis d'un bref exposé des motifs.
Lorsque le projet de résolution porte sur la présentation d'un candidat au conseil d'administration ou de surveillance, il est accompagné des renseignements prévus au 5° de l'article R. 225-83.
Les auteurs de la demande justifient de la possession ou de la représentation de la fraction du capital exigée par l'inscription des titres correspondants soit dans les comptes de titres nominatifs tenus par la société, soit dans les comptes de titres au porteur tenus par un intermédiaire mentionné à l'article L. 211-3 du code monétaire et financier. Ils transmettent avec leur demande une attestation d'inscription en compte.
L'examen de la résolution est subordonné à la transmission, par les auteurs de la demande, d'une nouvelle attestation justifiant de l'enregistrement comptable des titres dans les mêmes comptes au troisième jour ouvré précédant l'assemblée à zéro heure, heure de Paris.
Article R225-72
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Tout actionnaire d'une société dont toutes les actions revêtent la forme nominative qui veut user de la faculté de requérir l'inscription de projets de résolution à l'ordre du jour d'une assemblée peut demander à la société de l'aviser, par lettre recommandée ou par un moyen électronique de télécommunication mis en oeuvre dans les conditions mentionnées à l'article R. 225-63, à l'adresse indiquée par lui, de la date prévue pour la réunion des assemblées ou de certaines d'entre elles. La société est tenue d'envoyer cet avis, si l'actionnaire lui a adressé le montant des frais d'envoi, ou de le lui adresser par un moyen électronique de télécommunication mis en oeuvre dans les conditions mentionnées à l'article R. 225-63, à l'adresse indiquée par lui.
Les demandes d'inscription de projets de résolution à l'ordre du jour sont envoyées vingt-cinq jours au moins avant la date de l'assemblée réunie sur première convocation.
Les dispositions du présent article ne s'appliquent pas lorsque les actions de la société sont admises aux négociations sur un marché réglementé.
Article R225-73
I. - Les sociétés dont les actions sont admises aux négociations sur un marché réglementé ou dont toutes les actions ne revêtent pas la forme nominative sont tenues, avant la réunion de l'assemblée des actionnaires, de publier au Bulletin des annonces légales obligatoires un avis contenant les indications suivantes :
1° La dénomination sociale, suivie le cas échéant de son sigle ;
2° La forme de la société ;
3° Le montant du capital social ;
4° L'adresse du siège social ;
5° L'ordre du jour de l'assemblée ;
6° Le texte des projets de résolution qui seront présentés à l'assemblée par le conseil d'administration ou le directoire, selon le cas ;
7° Sauf dans les cas où la société adresse à tous ses actionnaires un formulaire de vote par correspondance, les lieux et les conditions dans lesquels peuvent être obtenus ces formulaires ;
8° L'existence et l'adresse du site mentionné à l'article R. 225-61, ainsi que, le cas échéant, l'adresse électronique où peuvent être envoyées les questions écrites.
Lorsque la société a émis des actions à dividende prioritaire sans droit de vote ou des valeurs mobilières donnant accès au capital, les avis publiés mentionnent également l'obligation de soumettre les résolutions à l'avis, à l'accord ou à l'approbation, selon le cas, de l'assemblée spéciale des titulaires d'actions à dividende prioritaire sans droit de vote ou des assemblées des masses
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prévues à l'article L. 228-103.
II. - Les demandes d'inscription de projets de résolution à l'ordre du jour sont envoyées à compter de la publication de l'avis prévu au I et jusqu'à vingt-cinq jours avant l'assemblée générale. Toutefois, ces demandes sont envoyées :
1° Dans un délai de vingt jours à compter de la publication de l'avis, lorsque celui-ci est publié plus de quarante-cinq jours avant l'assemblée générale ;
2° Dans un délai de cinq jours à compter de la publication de l'avis, lorsque l'assemblée est convoquée en application des dispositions de l'article L. 233-32.
L'avis mentionne le délai imparti pour l'envoi des demandes.
III. - L'assemblée ne peut être tenue moins de trente-cinq jours après la publication de l'avis prévu au I. Toutefois, lorsque l'assemblée est convoquée en application des dispositions de l'article L. 233-32, ce délai est ramené à quinze jours.
Article R225-74
Le président du conseil d'administration ou le directoire accuse réception des projets de résolution, par lettre recommandée, dans le délai de cinq jours à compter de cette réception. Cet accusé de réception peut également être transmis par un moyen électronique de télécommunication mis en oeuvre dans les conditions mentionnées à l'article R. 225-63, à l'adresse indiquée par l'actionnaire.
Ces projets de résolution sont inscrits à l'ordre du jour et soumis au vote de l'assemblée.
Article R225-75
A compter de la convocation de l'assemblée, tout actionnaire peut demander par écrit à la société de lui adresser, le cas échéant par voie électronique, dans les conditions définies à l'article R. 225-61, un formulaire de vote à distance. Cette demande doit être déposée ou parvenue au siège social au plus tard six jours avant la date de la réunion.
Article R225-76
Le formulaire de vote par correspondance permet un vote sur chacune des résolutions, dans l'ordre de leur présentation à l'assemblée ; il offre à l'actionnaire la possibilité d'exprimer sur chaque résolution un vote favorable ou défavorable à son adoption ou sa volonté de s'abstenir de voter.
Il informe l'actionnaire de manière très apparente que toute abstention exprimée dans le formulaire
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ou résultant de l'absence d'indication de vote sera assimilée à un vote défavorable à l'adoption de la résolution.
Le formulaire peut, le cas échéant, figurer sur le même document que la formule de procuration ; dans ce cas l'article R. 225-78 est applicable.
Le formulaire comporte le rappel des dispositions du deuxième alinéa de l'article R. 225-77 et l'indication de la date avant laquelle, conformément aux statuts, il est reçu par la société pour qu'il en soit tenu compte ; lorsqu'il a été convenu entre la société et les intermédiaires habilités par elle que ces derniers n'accepteraient plus de transmettre à la société des formulaires de vote reçus par eux après une date antérieure à celle fixée par la société, il est fait mention de cette date.
Sont annexés au formulaire :
1° Le texte des résolutions proposées accompagné d'un exposé des motifs et de l'indication de leur auteur ;
2° Une demande d'envoi des documents et renseignements mentionnés à l'article R. 225-83 et informant l'actionnaire qu'il peut demander à bénéficier des dispositions du troisième alinéa de l'article R. 225-88 ;
3° S'il s'agit de l'assemblée générale ordinaire prévue à l'article L. 225-100, l'exposé et les documents prévus à l'article R. 225-81.
Article R225-77
La date après laquelle il ne sera plus tenu compte des formulaires de vote reçus par la société ne peut être antérieure de plus de trois jours à la date de la réunion de l'assemblée, sauf délai plus court prévu par les statuts. Toutefois, les formulaires électroniques de vote à distance peuvent être reçus par la société jusqu'à la veille de la réunion de l'assemblée générale, au plus tard à 15 heures, heure de Paris.
Les formulaires de vote par correspondance reçus par la société comportent :
1° Les nom, prénom usuel et domicile de l'actionnaire ;
2° L'indication de la forme, nominative ou au porteur, sous laquelle sont détenus les titres et du nombre de ces derniers, ainsi qu'une mention constatant l'inscription des titres soit dans les comptes de titres nominatifs tenus par la société, soit dans les comptes de titres au porteur tenus par un intermédiaire mentionné à l'article L. 211-3 du code monétaire et financier.L'attestation de participation prévue à l'article R. 225-85 est annexée au formulaire ;
3° La signature, le cas échéant électronique, de l'actionnaire ou de son représentant légal ou judiciaire. La signature électronique prend la forme soit d'une signature électronique sécurisée au
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sens du décret n° 2001-272 du 30 mars 2001 pris pour l'application de l'article 1316-4 du code civil et relatif à la signature électronique, soit, si les statuts le prévoient, d'un autre procédé répondant aux conditions définies à la première phrase du second alinéa de l'article 1316-4 du code civil.
Le formulaire de vote par correspondance adressé à la société par une assemblée vaut pour les assemblées successives convoquées avec le même ordre du jour.
Article R225-78
Si la société utilise le document unique prévu au troisième alinéa de l'article R. 225-76, ce document comporte, outre les mentions prévues aux articles R. 225-76 et R. 225-77 et aux 5° et 6° de l'article R. 225-81, les indications suivantes :
1° Qu'il peut être utilisé pour chaque résolution soit pour un vote par correspondance, soit pour un vote par procuration ;
2° Qu'il peut être donné procuration pour voter au nom du signataire à un mandataire désigné dans les conditions de l'article L. 225-106 dont les dispositions sont reproduites sur ce document ;
3° Que, si des résolutions nouvelles étaient présentées à l'assemblée, le signataire a la faculté soit d'exprimer dans ce document sa volonté de s'abstenir, soit de donner mandat au président de l'assemblée générale ou à un mandataire désigné dans les conditions de l'article L. 225-106.
Article R225-79
La procuration donnée par un actionnaire pour se faire représenter à une assemblée est signée par celui-ci, le cas échéant par un procédé de signature électronique, et indique ses nom, prénom usuel et domicile. Elle peut désigner nommément un mandataire, qui n'a pas la faculté de se substituer une autre personne.
Pour l'application du premier alinéa, la signature électronique prend la forme soit d'une signature électronique sécurisée au sens du décret n° 2001-272 du 30 mars 2001 pris pour l'application de l'article 1316-4 du code civil et relatif à la signature électronique, soit, si les statuts le prévoient, d'un autre procédé répondant aux conditions définies à la première phrase du second alinéa de l'article 1316-4 du code civil.
Le mandat est donné pour une seule assemblée. Il peut cependant être donné pour deux assemblées, l'une ordinaire, l'autre extraordinaire, tenues le même jour ou dans un délai de quinze jours.
Le mandat donné pour une assemblée vaut pour les assemblées successives convoquées avec le même ordre du jour.
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Article R225-80
Les instructions données par la voie électronique dans les conditions définies à l'article R. 225-61 comportant procuration ou pouvoir peuvent valablement parvenir à la société jusqu'à 15 heures, heure de Paris, la veille de la réunion de l'assemblée générale. Dès la réception par la société de ces instructions, celles-ci sont irrévocables, hors le cas des cessions de titres qui font l'objet de la notification prévue au IV de l'article R. 225-85.
Article R225-81
Sont joints à toute formule de procuration adressée aux actionnaires par la société ou par le mandataire qu'elle a désigné à cet effet, le cas échéant par voie électronique dans les conditions définies à l'article R. 225-61 :
1° L'ordre du jour de l'assemblée ;
2° Le texte des projets de résolution présentés par le conseil d'administration ou le directoire, selon le cas, et par des actionnaires dans les conditions prévues aux articles R. 225-71 à R. 225-74 ;
3° Un exposé sommaire de la situation de la société pendant l'exercice écoulé, accompagné d'un tableau, dont un modèle figure en annexe 2-2 au présent livre, faisant apparaître les résultats de la société au cours de chacun des cinq derniers exercices ou de chacun des exercices clos depuis la constitution de la société ou l'absorption par celle-ci d'une autre société, si leur nombre est inférieur à cinq ;
4° Une formule de demande d'envoi des documents et renseignements mentionnés à l'article R. 225-83, informant l'actionnaire qu'il peut demander à bénéficier des dispositions du troisième alinéa de l'article R. 225-88 ;
5° Un formulaire de vote par correspondance comportant le rappel des dispositions de l'article L. 225-107 ;
6° Le rappel de manière très apparente des dispositions de l'article L. 225-106 ;
7° L'indication que l'actionnaire, à défaut d'assister personnellement à l'assemblée, peut choisir entre l'une des trois formules suivantes :
a) Donner une procuration à un autre actionnaire ou à son conjoint ;
b) Voter par correspondance ;
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c) Adresser une procuration à la société sans indication de mandat ;
8° L'indication qu'en aucun cas l'actionnaire ne peut retourner à la société à la fois la formule de procuration et le formulaire de vote par correspondance.
En cas de retour de la formule de procuration et du formulaire de vote par correspondance en violation des dispositions du 8° du présent article, la formule de procuration est prise en considération, sous réserve des votes exprimés dans le formulaire de vote par correspondance.
Article R225-82
Les formulaires de procuration et de vote à distance transmis par voie électronique dans les conditions définies à l'article R. 225-61 respectent les règles fixées aux articles R. 225-76 à R. 225-81 et R. 225-95 pour les formulaires de procuration et de vote par correspondance.
Article R225-83
La société adresse aux actionnaires ou met à leur disposition, dans les conditions prévues aux articles R. 225-88 et R. 225-89, les renseignements suivants contenus dans un ou plusieurs documents :
1° Les nom et prénom usuel, soit des administrateurs et directeurs généraux, soit des membres du conseil de surveillance et du directoire, ainsi que, le cas échéant, l'indication des autres sociétés dans lesquelles ces personnes exercent des fonctions de gestion, de direction, d'administration ou de surveillance ;
2° Le texte des projets de résolution présentés par le conseil d'administration ou le directoire, selon le cas ;
3° Le cas échéant, le texte et l'exposé des motifs des projets de résolution présentés par des actionnaires ;
4° Le rapport du conseil d'administration ou du directoire, selon le cas, qui sera présenté à l'assemblée ainsi que, le cas échéant, les observations du conseil de surveillance ;
5° Lorsque l'ordre du jour comporte la nomination d'administrateurs ou de membres du conseil de surveillance :
a) Les nom, prénom usuel et âge des candidats, leurs références professionnelles et leurs activités professionnelles au cours des cinq dernières années, notamment les fonctions qu'ils exercent ou ont exercées dans d'autres sociétés ;
b) Les emplois ou fonctions occupés dans la société par les candidats et le nombre d'actions de la société dont ils sont titulaires ou porteurs ;
6° S'il s'agit de l'assemblée générale ordinaire prévue à l'article L. 225-100 :
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a) Les comptes annuels, les comptes consolidés, le rapport sur la gestion du groupe, un tableau des affectations de résultat précisant notamment l'origine des sommes dont la distribution est proposée ;
b) Un tableau, dont un modèle figure à l'annexe 2-2 au présent livre, faisant apparaître les résultats de la société au cours de chacun des cinq derniers exercices ou de chacun des exercices clos depuis la constitution de la société ou l'absorption par celle-ci d'une autre société, si leur nombre est inférieur à cinq ;
c) Les rapports des commissaires aux comptes prévus au troisième alinéa des articles L. 225-40 et L. 225-88 et aux articles L. 232-3, L. 234-1 et R. 823-7 ;
d) Les observations du conseil de surveillance, s'il y a lieu ;
e) (Abrogé) ;
7° S'il s'agit d'une assemblée générale ordinaire prévue à l'article L. 225-101, le rapport des commissaires mentionnés audit article ;
8° S'il s'agit d'une assemblée générale extraordinaire ou d'une assemblée spéciale prévue à l'article L. 225-99, le rapport des commissaires aux comptes, qui sera, le cas échéant, présenté à l'assemblée.
Article R225-84
Les questions écrites mentionnées au troisième alinéa de l'article L. 225-108 sont envoyées, au siège social par lettre recommandée avec demande d'avis de réception adressée au président du conseil d'administration ou du directoire ou par voie de télécommunication électronique à l'adresse indiquée dans la convocation, au plus tard le quatrième jour ouvré précédant la date de l'assemblée générale.
Elles sont accompagnées d'une attestation d'inscription soit dans les comptes de titres nominatifs tenus par la société, soit dans les comptes de titres au porteur tenus par un intermédiaire mentionné à l'article L. 211-3 du code monétaire et financier.
Article R225-85
I.-Il est justifié du droit de participer aux assemblées générales des sociétés dont les titres sont admis aux négociations sur un marché réglementé ou aux opérations d'un dépositaire central par l'enregistrement comptable des titres au nom de l'actionnaire ou de l'intermédiaire inscrit pour son compte en application du septième alinéa de l'article L. 228-1, au troisième jour ouvré précédant l'assemblée à zéro heure, heure de Paris, soit dans les comptes de titres nominatifs tenus par la société, soit dans les comptes de titres au porteur tenus par un intermédiaire mentionné à l'article L. 211-3 du code monétaire et financier.
II.-L'inscription ou l'enregistrement comptable des titres dans les comptes de titres au porteur tenus par un intermédiaire mentionné à l'article L. 211-3 du code monétaire et financier est constaté par une attestation de participation délivrée par ce dernier, le cas échéant par voie électronique dans les conditions prévues à l'article R. 225-61, en annexe au formulaire de vote à distance ou de procuration ou à la demande de carte d'admission établis au nom de l'actionnaire ou pour le compte de l'actionnaire représenté par l'intermédiaire inscrit. Une attestation est également délivrée à
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l'actionnaire souhaitant participer physiquement à l'assemblée et qui n'a pas reçu sa carte d'admission le troisième jour ouvré précédant l'assemblée à zéro heure, heure de Paris.
III.-Lorsque l'actionnaire a déjà exprimé son vote à distance, envoyé un pouvoir ou demandé sa carte d'admission ou une attestation de participation dans les conditions prévues à la dernière phrase du II, il ne peut plus choisir un autre mode de participation à l'assemblée, sauf disposition contraire des statuts.
IV.-L'actionnaire qui a déjà exprimé son vote à distance, envoyé un pouvoir ou demandé sa carte d'admission ou une attestation de participation dans les conditions prévues à la dernière phrase du II peut à tout moment céder tout ou partie de ses actions.
Cependant, si la cession intervient avant le troisième jour ouvré précédant l'assemblée à zéro heure, heure de Paris, la société invalide ou modifie en conséquence, selon le cas, le vote exprimé à distance, le pouvoir, la carte d'admission ou l'attestation de participation.A cette fin, l'intermédiaire mentionné à l'article L. 211-3 du code monétaire et financier notifie la cession à la société ou à son mandataire et lui transmet les informations nécessaires.
Aucune cession ni aucune autre opération réalisée après le troisième jour ouvré précédant l'assemblée à zéro heure, heure de Paris, quel que soit le moyen utilisé, n'est notifiée par l'intermédiaire mentionné à l'article L. 211-3 du code monétaire et financier ou prise en considération par la société, nonobstant toute convention contraire.
Article R225-86
Il est justifié du droit de participer aux assemblées générales des sociétés dont les titres ne sont admis ni aux négociations sur un marché réglementé ni aux opérations d'un dépositaire central par l'inscription des titres au nom de l'actionnaire, au jour de l'assemblée générale, dans les comptes de titres nominatifs tenus par la société. La société peut cependant, par une disposition spéciale de ses statuts, décider qu'il sera justifié du droit de participer aux assemblées par l'inscription des titres dans les mêmes comptes au troisième jour ouvré précédant l'assemblée à zéro heure, heure de Paris.
L'actionnaire qui a déjà exprimé son vote à distance ou envoyé un pouvoir peut à tout moment céder tout ou partie de ses actions. En cas de cession intervenant avant le jour de la séance ou la date fixée par les statuts en application de la dernière phrase du premier alinéa, et sauf dispositions statutaires particulières, la société invalide ou modifie en conséquence, avant l'ouverture de la séance de l'assemblée, le vote exprimé à distance ou le pouvoir de cet actionnaire.
Article R225-87
Le mandataire chargé de représenter les copropriétaires d'actions indivises dans les conditions prévues au deuxième alinéa de l'article L. 225-110 est désigné par ordonnance du président du tribunal de commerce, statuant en référé.
Article R225-88
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A compter de la convocation de l'assemblée et jusqu'au cinquième jour inclusivement avant la réunion, tout actionnaire titulaire de titres nominatifs peut demander à la société de lui envoyer, à l'adresse indiquée, les documents et renseignements mentionnés aux articles R. 225-81 et R. 225-83. La société est tenue de procéder à cet envoi avant la réunion et à ses frais. Cet envoi peut être effectué par un moyen électronique de télécommunication mis en oeuvre dans les conditions mentionnées à l'article R. 225-63, à l'adresse indiquée par l'actionnaire.
Le même droit est ouvert à tout actionnaire propriétaire de titres au porteur, qui justifie de cette qualité par la transmission d'une attestation d'inscription dans les comptes de titres au porteur tenus par un intermédiaire mentionné à l'article L. 211-3 du code monétaire et financier.
Les actionnaires mentionnés au premier alinéa peuvent, par une demande unique, obtenir de la société l'envoi des documents et renseignements précités à l'occasion de chacune des assemblées d'actionnaires ultérieures.
Article R225-89
A compter de la convocation de l'assemblée générale ordinaire annuelle et au moins pendant le délai de quinze jours qui précède la date de la réunion, tout actionnaire a le droit de prendre connaissance, au siège social ou au lieu de la direction administrative, des documents et renseignements énumérés aux articles L. 225-115 et R. 225-83. Toutefois, il n'a le droit de prendre connaissance, aux mêmes lieux, du rapport des commissaires aux comptes, que pendant le même délai de quinze jours.
Il a également le droit, à compter de la convocation de l'assemblée générale extraordinaire ou de l'assemblée spéciale et au moins pendant le délai de quinze jours qui précède la date de la réunion, de prendre connaissance, aux mêmes lieux, du texte des résolutions présentées, du rapport du conseil d'administration ou du directoire, ainsi que, le cas échéant, du rapport des commissaires aux comptes.
Il peut aussi, à compter de la convocation de l'assemblée générale prévue à l'article L. 225-101, prendre connaissance dans les conditions prévues à l'alinéa précédent du texte des résolutions proposées, du rapport du conseil d'administration ou du directoire et du rapport des commissaires prévu à l'article L. 225-101.
Sauf en ce qui concerne l'inventaire, le droit de prendre connaissance emporte celui de prendre copie.
Article R225-90
En application des dispositions de l'article L. 225-116, l'actionnaire a le droit, pendant le délai de quinze jours qui précède la réunion de l'assemblée générale de prendre connaissance ou copie, aux lieux prévus à l'article R. 225-89, de la liste des actionnaires.
A cette fin, la liste des actionnaires est arrêtée par la société le seizième jour qui précède la réunion de l'assemblée. Elle contient les nom, prénom usuel et domicile de chaque titulaire d'actions nominatives. Le nombre d'actions dont chaque actionnaire est titulaire au porteur est en outre
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mentionné.
Article R225-91
L'actionnaire exerce les droits reconnus par les articles R. 225-89 et R. 225-90 par lui-même ou par le mandataire qu'il a désigné pour le représenter à l'assemblée.
Article R225-92
En application des dispositions de l'article L. 225-117, l'actionnaire a le droit de prendre connaissance par lui-même ou par mandataire, au siège social ou au lieu de la direction administrative, des documents mentionnés par cet article.
Sauf en ce qui concerne l'inventaire, le droit de prendre connaissance emporte celui de prendre copie.
Article R225-93
En application des dispositions du deuxième alinéa de l'article L. 225-51-1, l'actionnaire peut, par lui-même ou par mandataire, prendre connaissance, au siège social ou au lieu de la direction administrative, de l'extrait du procès-verbal contenant la décision du conseil d'administration relative au choix de l'une des deux modalités d'exercice de la direction générale.
Article R225-94
Tout actionnaire exerçant le droit d'obtenir communication de documents et renseignements auprès de la société peut se faire assister d'un expert inscrit sur une des listes établies par les cours et tribunaux.
Article R225-95
La feuille de présence aux assemblées d'actionnaires contient les mentions suivantes :
1° Les nom, prénom usuel et domicile de chaque actionnaire présent ou réputé présent au sens du II de l'article L. 225-107, le nombre d'actions dont il est titulaire, ainsi que le nombre de voix attaché à ces actions ;
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2° Les nom, prénom usuel et domicile de chaque actionnaire représenté, le nombre d'actions dont il est titulaire, ainsi que le nombre de voix attaché à ces actions ;
3° Les nom, prénom usuel et domicile de chaque mandataire, le nombre d'actions de ses mandants, ainsi que le nombre de voix attaché à ces actions ;
4° Les nom, prénom usuel et domicile de chaque actionnaire ayant adressé à la société un formulaire de vote par correspondance, ainsi que le nombre d'actions dont il est titulaire et le nombre de voix attaché à ces actions.
Le bureau de l'assemblée peut annexer à la feuille de présence la procuration ou le formulaire de vote par correspondance portant les nom, prénom usuel et domicile de chaque actionnaire mandant ou votant par correspondance, le nombre d'actions dont il est titulaire et le nombre de voix attaché à ces actions. Dans ce cas, le bureau de l'assemblée indique le nombre des pouvoirs et des formulaires de vote par correspondance annexés à cette feuille ainsi que le nombre des actions et des droits de vote correspondant aux procurations et aux formulaires. Les pouvoirs et les formulaires de vote par correspondance sont communiqués en même temps et dans les mêmes conditions que la feuille de présence.
La feuille de présence, dûment émargée par les actionnaires présents et les mandataires, est certifiée exacte par le bureau de l'assemblée.
Article R225-96
L'assemblée générale ne peut délibérer qu'après la fin de l'assemblée spéciale des titulaires d'actions à dividende prioritaire sans droit de vote prévue aux articles R. 228-40 à R. 228-48 lorsque celle-ci peut adopter un avis sur une résolution soumise à l'assemblée générale.
Article R225-97
Afin de garantir, en vue de l'application du II de l'article L. 225-107, l'identification et la participation effective à l'assemblée des actionnaires y participant par des moyens de visioconférence ou de télécommunication, ces moyens transmettent au moins la voix des participants et satisfont à des caractéristiques techniques permettant la retransmission continue et simultanée des délibérations.
Article R225-98
Les actionnaires exerçant leurs droits de vote en séance par voie électronique dans les conditions de l'article R. 225-61 ne peuvent accéder au site consacré à cet effet qu'après s'être identifiés au moyen d'un code fourni préalablement à la séance.
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Article R225-99
Le procès-verbal des délibérations mentionné à l'article R. 225-106 fait état de la survenance éventuelle d'un incident technique relatif à la visioconférence ou à la télécommunication électronique lorsqu'il a perturbé le déroulement de l'assemblée.
Article R225-100
Les assemblées d'actionnaires sont présidées par le président du conseil d'administration ou du conseil de surveillance, selon le cas, ou, en son absence, par la personne prévue par les statuts. A défaut, l'assemblée élit elle-même son président.
En cas de convocation par les commissaires aux comptes, par un mandataire de justice ou par les liquidateurs, l'assemblée est présidée par celui ou par l'un de ceux qui l'ont convoquée.
Article R225-101
Sont scrutateurs de l'assemblée, les deux membres de l'assemblée disposant du plus grand nombre de voix et acceptant cette fonction.
Le bureau de l'assemblée en désigne le secrétaire qui, sauf disposition contraire des statuts, peut être choisi en dehors des actionnaires.
Article R225-102
Le conseil d'administration ou le directoire, selon le cas, expose de manière claire et précise, notamment dans le rapport prévu aux articles L. 225-100 et L. 225-100-2, l'activité de la société et, le cas échéant, de ses filiales au cours du dernier exercice écoulé, les résultats de cette activité, les progrès réalisés ou les difficultés rencontrées et les perspectives d'avenir. Le conseil d'administration indique le choix fait de l'une des deux modalités d'exercice de la direction générale prévues à l'article L. 225-51-1. Sauf modification, cette indication n'est pas reproduite dans les rapports ultérieurs.
Au rapport mentionné à l'alinéa précédent est obligatoirement joint un tableau, dont un modèle figure en annexe 2-2 au présent livre, faisant apparaître les résultats de la société au cours de chacun des cinq derniers exercices ou de chacun des exercices clos depuis la constitution de la société ou l'absorption par celle-ci d'une autre société, s'ils sont inférieurs à cinq.
Article R225-103
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Les commissaires mentionnés à l'article L. 225-101 sont désignés et accomplissent leur mission dans les conditions prévues à l'article R. 225-7.
Le rapport décrit les biens à acquérir, indique les critères retenus pour la fixation du prix et apprécie la pertinence de ces critères.
Article R225-104
Figurent dans le rapport du conseil d'administration ou du directoire, en application du quatrième alinéa de l'article L. 225-102-1, les informations sociales suivantes :
1° a) L'effectif total, les embauches en distinguant les contrats à durée déterminée et les contrats à durée indéterminée et en analysant les difficultés éventuelles de recrutement, les licenciements et leurs motifs, les heures supplémentaires, la main-d'oeuvre extérieure à la société ;
b) Le cas échéant, les informations relatives aux plans de réduction des effectifs et de sauvegarde de l'emploi, aux efforts de reclassement, aux réembauches et aux mesures d'accompagnement ;
2° L'organisation du temps de travail, la durée de celui-ci pour les salariés à temps plein et les salariés à temps partiel, l'absentéisme et ses motifs ;
3° Les rémunérations et leur évolution, les charges sociales, l'application des dispositions du code du travail relatives à l'intéressement, la participation et les plans d'épargne salariale, l'égalité professionnelle entre les femmes et les hommes ;
4° Les relations professionnelles et le bilan des accords collectifs ;
5° Les conditions d'hygiène et de sécurité ;
6° La formation ;
7° L'emploi et l'insertion des travailleurs handicapés ;
8° Les oeuvres sociales ;
9° L'importance de la sous-traitance.
Le rapport expose la manière dont la société prend en compte l'impact territorial de ses activités en matière d'emploi et de développement régional.
Il décrit, le cas échéant, les relations entretenues par la société avec les associations d'insertion, les
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établissements d'enseignement, les associations de défense de l'environnement, les associations de consommateurs et les populations riveraines.
Il indique l'importance de la sous-traitance et la manière dont la société promeut auprès de ses sous-traitants et s'assure du respect par ses filiales des dispositions des conventions fondamentales de l'Organisation internationale du travail.
Il indique en outre la manière dont les filiales étrangères de l'entreprise prennent en compte l'impact de leurs activités sur le développement régional et les populations locales.
Article R225-105
Figurent dans les mêmes conditions, dans le rapport du conseil d'administration ou du directoire, les informations suivantes relatives aux conséquences de l'activité de la société sur l'environnement, données en fonction de la nature de cette activité et de ses effets :
1° La consommation de ressources en eau, matières premières et énergie avec, le cas échéant, les mesures prises pour améliorer l'efficacité énergétique et le recours aux énergies renouvelables, les conditions d'utilisation des sols, les rejets dans l'air, l'eau et le sol affectant gravement l'environnement et dont la liste est déterminée par arrêté des ministres chargés de l'environnement et de l'industrie, les nuisances sonores ou olfactives et les déchets ;
2° Les mesures prises pour limiter les atteintes à l'équilibre biologique, aux milieux naturels, aux espèces animales et végétales protégées ;
3° Les démarches d'évaluation ou de certification entreprises en matière d'environnement ;
4° Les mesures prises, le cas échéant, pour assurer la conformité de l'activité de la société aux dispositions législatives et réglementaires applicables en cette matière ;
5° Les dépenses engagées pour prévenir les conséquences de l'activité de la société sur l'environnement ;
6° L'existence au sein de la société de services internes de gestion de l'environnement, la formation et l'information des salariés sur celui-ci, les moyens consacrés à la réduction des risques pour l'environnement ainsi que l'organisation mise en place pour faire face aux accidents de pollution ayant des conséquences au-delà des établissements de la société ;
7° Le montant des provisions et garanties pour risques en matière d'environnement, sauf si cette information est de nature à causer un préjudice sérieux à la société dans un litige en cours ;
8° Le montant des indemnités versées au cours de l'exercice en exécution d'une décision judiciaire en matière d'environnement et les actions menées en réparation de dommages causés à celui-ci ;
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9° Tous les éléments sur les objectifs que la société assigne à ses filiales à l'étranger sur les points 1° à 6° ci-dessus.
Article R225-106
Le procès-verbal des délibérations de l'assemblée indique la date et le lieu de réunion, le mode de convocation, l'ordre du jour, la composition du bureau, le nombre d'actions participant au vote et le quorum atteint, les documents et rapports soumis à l'assemblée, un résumé des débats, le texte des résolutions mises aux voix et le résultat des votes. Il est signé par les membres du bureau.
Les procès-verbaux sont établis sur un registre spécial tenu au siège social, dans les conditions prévues aux articles R. 225-22 et R. 225-49.
Article R225-107
Si, à défaut du quorum requis, une assemblée ne peut délibérer régulièrement, il en est dressé procès-verbal par le bureau de cette assemblée.
Article R225-108
Les copies ou extraits de procès-verbaux des assemblées d'actionnaires sont certifiés, soit par le président du conseil d'administration ou par un administrateur exerçant les fonctions de directeur général, soit, le cas échéant, par le président ou le vice-président du conseil de surveillance ou par un membre du directoire. Ils peuvent également être certifiés par le secrétaire de l'assemblée.
En cas de liquidation de la société, ils sont certifiés par un seul liquidateur.
Article R225-109
Toute personne a le droit, à toute époque, d'obtenir, au siège social, la délivrance d'une copie certifiée conforme des statuts en vigueur au jour de la demande.
La société annexe à ce document la liste, comportant leur nom et prénom usuel, des administrateurs ou des membres du conseil de surveillance et du directoire, selon le cas, ainsi que des commissaires aux comptes en exercice.
Elle ne peut, pour cette délivrance, exiger le paiement d'une somme supérieure à 0,30 euros.
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Article R225-110
Les personnes mentionnées à l'article L. 225-109 sont tenues, dans le délai d'un mois à compter de la date à laquelle elles acquièrent la qualité au titre de laquelle elles sont soumises à l'obligation prévue à cet article, de faire mettre sous la forme nominative ou de déposer dans les conditions fixées par l'article R. 225-112 les actions visées à l'article L. 225-109 dont elles sont propriétaires ou qui appartiennent à leurs enfants mineurs non émancipés.
Article R225-111
Les personnes mentionnées à l'article L. 225-109 sont tenues, lorsqu'elles acquièrent des actions visées à cet article, de faire mettre ces actions sous la forme nominative, ou de les déposer dans les conditions fixées par l'article R. 225-112 dans le délai de vingt jours à compter de l'entrée en possession des titres.
Article R225-112
Le dépôt prévu à l'article L. 225-109 est fait auprès d'un intermédiaire mentionné à l'article L. 211-3 du code monétaire et financier.
Section 4 : Des modifications du capital social et de l'actionnariat des salariés.
Sous-section 1 : De l'augmentation du capital.
Article R225-113
Le conseil d'administration ou le directoire donne, dans le rapport prévu à l'article L. 225-129, toutes indications utiles sur les motifs de l'augmentation du capital proposée ainsi que sur la marche des affaires sociales depuis le début de l'exercice en cours et, si l'assemblée générale ordinaire appelée à statuer sur les comptes n'a pas encore été tenue, pendant l'exercice précédent. Le cas échéant, le conseil d'administration ou le directoire indique le montant maximal de l'augmentation de capital.
Article R225-114
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Le rapport du conseil d'administration ou du directoire prévu à l'article L. 225-135 indique le montant maximal et les motifs de l'augmentation de capital proposée, ainsi que les motifs de la proposition de suppression du droit préférentiel de souscription.
Il indique en outre :
1° Dans les cas prévus à l'article L. 225-136 et au II de l'article L. 225-138, les modalités de placement des nouveaux titres de capital ou des nouvelles valeurs mobilières donnant accès au capital et, avec leur justification, le prix d'émission ou les modalités de sa détermination ;
2° Dans le cas prévu au I de l'article L. 225-138, le nom des attributaires des nouveaux titres de capital ou des nouvelles valeurs mobilières donnant accès au capital, ou les caractéristiques des catégories de personnes concernées, et le nombre de titres attribués à chaque personne ou catégorie de personnes ou les modalités d'attribution des titres.
Le commissaire aux comptes donne son avis dans les cas prévus au 1° selon les modalités prévues au deuxième alinéa de l'article R. 225-115.
Article R225-115
Lorsque l'assemblée fixe elle-même toutes les modalités de l'augmentation de capital avec suppression du droit préférentiel de souscription, le rapport mentionné à l'article R. 225-114 indique également l'incidence de l'émission proposée sur la situation des titulaires de titres de capital et de valeurs mobilières donnant accès au capital, en particulier en ce qui concerne leur quote-part des capitaux propres à la clôture du dernier exercice. Si la clôture est antérieure de plus de six mois à l'opération envisagée, cette incidence est appréciée au vu d'une situation financière intermédiaire établie selon les mêmes méthodes et suivant la même présentation que le dernier bilan annuel. Dans les sociétés dont les titres sont admis aux négociations sur un marché réglementé, est en outre indiquée l'incidence théorique sur la valeur boursière actuelle de l'action telle qu'elle résulte de la moyenne des vingt séances de bourse précédentes. Ces informations sont également données en tenant compte de l'ensemble des titres émis susceptibles de donner accès au capital.
Le commissaire aux comptes donne son avis sur la proposition de suppression du droit préférentiel, sur le choix des éléments de calcul du prix d'émission et sur son montant, ainsi que sur l'incidence de l'émission sur la situation des titulaires de titres de capital et de valeurs mobilières donnant accès au capital appréciée par rapport aux capitaux propres et, le cas échéant, sur la valeur boursière de l'action. Il vérifie et certifie la sincérité des informations tirées des comptes de la société sur lesquelles il donne cet avis.
Article R225-116
Lorsque l'assemblée générale a délégué ses pouvoirs ou sa compétence dans les conditions prévues aux articles L. 225-129-1, L. 225-129-2, et L. 225-136 ou aux I et II de l'article L. 225-138, le conseil d'administration, ou le directoire, établit, au moment où il est fait usage de l'autorisation, un
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rapport complémentaire décrivant les conditions définitives de l'opération établies conformément à l'autorisation donnée par l'assemblée. Le rapport comporte, en outre, les informations prévues à l'article R. 225-115.
Le commissaire aux comptes vérifie notamment la conformité des modalités de l'opération au regard de l'autorisation donnée par l'assemblée et des indications fournies à celle-ci. Il donne également son avis sur le choix des éléments de calcul du prix d'émission et sur son montant définitif, ainsi que sur l'incidence de l'émission sur la situation des titulaires de titres de capital ou de valeurs mobilières donnant accès au capital telle que définie au deuxième alinéa de l'article R. 225-115.
Ces rapports complémentaires sont immédiatement mis à la disposition des actionnaires au siège social, au plus tard dans les quinze jours suivant la réunion du conseil d'administration ou du directoire, et portés à leur connaissance à la plus prochaine assemblée générale.
Article R225-117
Qu'il soit demandé ou non aux actionnaires et aux porteurs de certificats d'investissement de renoncer à leur droit préférentiel de souscription, le contenu des rapports du conseil d'administration ou du directoire et des commissaires aux comptes à l'assemblée générale appelée à autoriser une émission de valeurs mobilières mentionnées aux articles L. 228-91 et L. 228-93 est régi par les articles R. 225-113 et R. 225-114 ainsi que, selon les cas, par les articles R. 225-115 ou R. 225-116.
Sont en outre indiquées les caractéristiques des valeurs mobilières donnant droit à l'attribution de titres de créances ou donnant accès au capital, les modalités d'attribution des titres de créances ou de capital auxquels ces valeurs mobilières donnent droit, ainsi que les dates auxquelles peuvent être exercés les droits d'attribution. Dans le cas d'émission de valeurs mobilières donnant droit à l'attribution de titres de créances composées uniquement de titres de créances, le rapport du commissaire aux comptes porte sur la situation d'endettement de la société, à l'exclusion du choix des éléments de calcul du prix d'émission.
Lorsque l'augmentation de capital a lieu avec maintien du droit préférentiel de souscription, le commissaire aux comptes donne son avis sur l'émission proposée et sur le choix des éléments de calcul du prix d'émission et son montant.
Article R225-118
Pour l'application de l'article L. 225-135-1, l'assemblée peut prévoir que le nombre de titres pourra être augmenté dans les trente jours de la clôture de la souscription dans la limite de 15 % de l'émission initiale et au même prix que celui retenu pour l'émission initiale.
Article R225-119
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Pour l'application du premier alinéa du 1° de l'article L. 225-136, le prix est au moins égal à la moyenne pondérée des cours des trois dernières séances de bourse précédant sa fixation, éventuellement diminuée d'une décote maximale de 5 %.
Article R225-120
Lorsqu'une émission d'actions nouvelles ou de valeurs mobilières donnant accès au capital est susceptible d'entraîner une augmentation de capital, les actionnaires sont informés de cette émission et de ses modalités par un avis contenant notamment les indications suivantes :
1° La dénomination sociale, suivie le cas échéant de son sigle ;
2° La forme de la société ;
3° Le montant du capital social ;
4° L'adresse du siège social ;
5° Les mentions prévues aux 1° et 2° de l'article R. 123-237 ;
6° Le montant de l'augmentation du capital et, le cas échéant, le montant supplémentaire de l'augmentation de capital sur le fondement de l'article L. 225-135-1 ;
7° Les dates d'ouverture et de clôture de la souscription ;
8° L'existence, au profit des actionnaires, du droit préférentiel de souscription des nouvelles actions ou valeurs mobilières donnant accès au capital ainsi que les conditions d'exercice de ce droit ;
9° La valeur nominale des actions ou valeurs mobilières donnant accès au capital à souscrire en numéraire, que cette valeur figure ou non dans les statuts, et, le cas échéant, le montant de la prime d'émission ;
10° La somme immédiatement exigible par action ou valeur mobilière donnant accès au capital souscrite ;
11° Le nom ou la dénomination sociale, l'adresse de la résidence ou du siège social du dépositaire ;
12° Le cas échéant, la description sommaire, l'évaluation et le mode de rémunération des apports en nature compris dans l'augmentation de capital avec l'indication du caractère provisoire de cette évaluation et de ce mode de rémunération ;
13° L'indication que si les actions non souscrites représentent plus de 3 % de l'augmentation de capital, la souscription sera soit ouverte au public, soit limitée au montant des souscriptions reçues.
En cas d'émission de valeurs mobilières donnant accès au capital susceptible d'entraîner une augmentation de capital, l'avis mentionne également les principales caractéristiques des valeurs mobilières, notamment les modalités d'attribution des titres de capital auxquels elles donnent droit, ainsi que les dates auxquelles les droits d'attribution peuvent être exercés.
Les indications prévues au présent article sont portées à la connaissance des actionnaires par lettre recommandée avec demande d'avis de réception quatorze jours au moins avant la date prévue de
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clôture de la souscription.
Si toutes les actions de la société ne revêtent pas la forme nominative ou si elles sont admises aux négociations sur un marché réglementé, l'avis contenant ces indications est inséré, dans le même délai, dans une notice publiée au Bulletin des annonces légales obligatoires.
Toutefois, si cette société procède à l'émission mentionnée au premier alinéa par une offre au public au sens de l'article L. 411-1 du code monétaire et financier, elle rend publiques ces indications au moins quatorze jours avant la clôture de la souscription selon les modalités prévues par l'article L. 412-1 du même code et est dispensée des formalités prévues aux alinéas précédents.
Article R225-121
Lorsque l'assemblée générale a supprimé le droit préférentiel de souscription des actionnaires, les dispositions de l'article R. 225-120 ne sont pas applicables.
Article R225-122
L'actionnaire qui renonce à titre individuel à son droit préférentiel de souscription en avise la société par lettre recommandée.
Dans les sociétés dont les actions sont admises aux négociations sur un marché réglementé, la renonciation ne peut être faite au profit de bénéficiaires dénommés.
La renonciation sans indication de bénéficiaire est accompagnée pour les actions au porteur des coupons correspondants ou d'une attestation du dépositaire des titres ou de l'intermédiaire prévu par l'article R. 211-4 du code monétaire et financier constatant la renonciation de l'actionnaire.
La renonciation faite au profit de bénéficiaires dénommés est accompagnée de l'acceptation de ces derniers.
Pour l'application des dispositions des articles L. 225-133 et L. 225-134, il est tenu compte pour le calcul du nombre d'actions non souscrites de celles qui correspondent aux droits préférentiels auxquels les actionnaires ont renoncé à titre individuel sans indication du nom des bénéficiaires. Toutefois, lorsque cette renonciation a été notifiée à la société au plus tard à la date de la décision de réalisation de l'augmentation de capital, les actions correspondantes sont mises à la disposition des autres actionnaires pour l'exercice de leur droit préférentiel de souscription.
Article R225-123
Le nu-propriétaire d'actions est réputé, à l'égard de l'usufruitier, avoir négligé d'exercer le droit préférentiel de souscription aux actions nouvelles émises par la société lorsqu'il n'a ni souscrit d'actions nouvelles ni vendu les droits de souscription, huit jours avant l'expiration du délai de souscription accordé aux actionnaires.
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Il est réputé, à l'égard de l'usufruitier, avoir négligé d'exercer le droit à l'attribution d'actions gratuites lorsqu'il n'a pas demandé cette attribution ni vendu les droits, trois mois après le début des opérations d'attribution.
Article R225-124
La notice prévue au dernier alinéa de l'article R. 225-120 contient les indications suivantes :
1° L'objet social, indiqué sommairement ;
2° La date d'expiration normale de la société ;
3° Les catégories d'actions émises et leurs caractéristiques ;
4° Les avantages particuliers stipulés par les statuts au profit de toute personne ;
5° Les conditions d'admission aux assemblées d'actionnaires et d'exercice du droit de vote ainsi que, le cas échéant, les dispositions relatives à l'attribution du droit de vote double ;
6° Le cas échéant, les clauses statutaires restreignant la libre cession des actions ;
7° Les dispositions relatives à la répartition des bénéfices, à la constitution des réserves et à la répartition du boni de liquidation ;
8° Le cas échéant, le montant des obligations convertibles en actions antérieurement émises, les délais d'exercice de l'option accordée aux porteurs ou l'indication que la conversion peut avoir lieu à tout moment et les bases de la conversion ;
9° Le montant non amorti des autres obligations antérieurement émises et les garanties dont elles sont assorties ;
10° Le montant, lors de l'émission, des emprunts obligataires garantis par la société ainsi que, le cas échéant, la fraction garantie de ces emprunts.
La notice est revêtue de la signature sociale.
Article R225-125
Une copie du dernier bilan, certifiée conforme par le représentant légal de la société, est publiée en
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annexe à la notice prévue à l'article R. 225-124.
Si le dernier bilan a déjà été publié au Bulletin des annonces légales obligatoires, la copie de ce bilan peut être remplacée par l'indication de la référence de la publication antérieure.
Si aucun bilan n'a encore été établi, la notice en fait mention.
Article R225-126
Les documents informant le public de l'émission d'actions reproduisent les énonciations de la notice prévue à l'article R. 225-124 et contiennent la mention de l'insertion de cette notice au Bulletin des annonces légales obligatoires avec référence au numéro dans lequel elle a été publiée.
Les annonces dans les journaux reproduisent les mêmes énonciations ou au moins un extrait de ces énonciations avec référence à la notice et indication du numéro du Bulletin des annonces légales obligatoires dans lequel elle a été publiée.
Article R225-127
Les formalités prévues par les articles R. 225-120, R. 225-124 et R. 225-125 en cas d'augmentation du capital par émission d'actions nouvelles à souscrire en numéraire sont accomplies par le mandataire du conseil d'administration ou du directoire, selon le cas.
Article R225-128
Le bulletin de souscription est daté et signé par le souscripteur ou son mandataire qui écrit en toutes lettres le nombre de titres souscrits. Une copie de ce bulletin établie sur papier libre lui est remise.
Le bulletin de souscription comporte :
1° La dénomination sociale, suivie le cas échéant de son sigle ;
2° La forme de la société ;
3° Le montant du capital social ;
4° L'adresse du siège social ;
5° Les mentions prévues aux 1° et 2° de l'article R. 123-237 ;
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6° Le montant et les modalités de l'augmentation du capital ;
7° Le cas échéant, le montant à souscrire en actions de numéraire et le montant libéré par les apports en nature ;
8° Le nom ou la désignation sociale et l'adresse de la personne qui reçoit les fonds ;
9° Les nom, prénom usuel et domicile du souscripteur et le nombre des titres souscrits par lui ;
10° La mention de la remise au souscripteur d'une copie du bulletin de souscription.
Article R225-129
Les fonds provenant des souscriptions en numéraire sont déposés dans les conditions prévues à l'article R. 225-6.
Article R225-130
Les sommes provenant de la vente prévue à l'article L. 225-130 sont allouées aux titulaires des droits au plus tard trente jours après la date d'inscription à leur compte du nombre entier de titres de capital attribués.
Article R225-131
La durée minimale du délai de priorité de souscription prévu à l'article L. 225-135 est de trois jours de bourse.
Article R225-132
Le président du directoire ou le directeur général peut procéder aux opérations prévues au dernier alinéa de l'article L. 225-149 et au dernier alinéa de l'article L. 228-12 au plus tard dans le mois qui suit la clôture de l'exercice.
Article R225-133
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La durée maximale de suspension de la possibilité d'obtenir des titres de capital par l'exercice de droits attachés aux valeurs mobilières donnant accès au capital, prévue pour l'application de l'article L. 225-149-1, est de trois mois.
Les indications contenues dans l'avis par lequel le conseil d'administration, ou le directoire, suspend la possibilité d'obtenir des titres de capital sont portées à la connaissance des titulaires de valeurs mobilières donnant accès au capital par lettre recommandée avec demande d'avis de réception, sept jours au moins avant la date d'entrée en vigueur de la suspension. Si les valeurs mobilières de la société donnant accès au capital sont admises aux négociations sur un marché réglementé ou si toutes ses valeurs mobilières donnant accès au capital ne revêtent pas la forme nominative, l'avis contenant ces indications est inséré, dans le même délai, dans une notice publiée au Bulletin des annonces légales obligatoires.
Cet avis mentionne :
1° La dénomination sociale et, le cas échéant, le sigle de la société ;
2° La forme de la société ;
3° Le montant du capital social ;
4° L'adresse du siège social ;
5° Les mentions prévues aux 1° et 2° de l'article R. 123-237 ;
6° Les dates d'entrée en vigueur et de cessation de la suspension.
Article R225-134
En cas de libération d'actions par compensation de créances sur la société, ces créances font l'objet d'un arrêté de compte établi par le conseil d'administration ou le directoire et certifié exact par le commissaire aux comptes.
Article R225-135
L'augmentation de capital par émission d'actions à souscrire en numéraire est réalisée, selon le cas, à la date du certificat du dépositaire ou à la date de la signature du contrat de garantie conclu dans les conditions prévues à l'article L. 225-145.
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Article R225-136
En cas d'apports en nature ou de stipulation d'avantages particuliers, les commissaires aux apports sont désignés et accomplissent leur mission dans les conditions prévues à l'article R. 225-7. Les dispositions de l'article R. 225-8 sont applicables en cas d'apports en nature.
En cas d'émission d'actions de préférence au profit d'actionnaires désignés, les commissaires aux apports mentionnés à l'article L. 228-15 sont désignés et accomplissent leur mission dans les conditions prévues aux deuxième et troisième alinéas de l'article R. 225-7.
En cas de stipulation d'avantages particuliers ou d'émission d'actions de préférence donnant lieu à l'application de l'article L. 228-15, le rapport décrit et apprécie chacun des avantages particuliers ou des droits particuliers attachés aux actions de préférence. S'il y a lieu, il indique, pour ces droits particuliers, quel mode d'évaluation a été retenu et pourquoi il a été retenu, et justifie que la valeur des droits particuliers correspond au moins à la valeur nominale des actions de préférence à émettre augmentée éventuellement de la prime d'émission.
Le rapport des commissaires aux apports est tenu, au siège social, à la disposition des actionnaires, huit jours au moins avant la date de l'assemblée générale extraordinaire ou avant la date de la réunion du conseil d'administration ou du directoire, en cas de délégation conformément au sixième alinéa de l'article L. 225-147. Dans ce cas, le rapport est porté à la connaissance des actionnaires à la prochaine assemblée générale.
En cas d'émission d'actions de préférence donnant lieu à l'application de l'article L. 228-15, ce délai peut être réduit si tous les actionnaires y consentent, par écrit, préalablement à la désignation du commissaire aux apports.
Sous-section 2 : De la souscription et de l'achat d'actions par les salariés.
Article R225-137
Pour l'application, conformément à l'article L. 225-181, des dispositions du 3° de l'article L. 228-99 en vue de la protection des intérêts des bénéficiaires d'options de souscription ou d'achat d'actions, l'article R. 228-91 est applicable, sous réserve des dispositions de la présente sous-section.
Article R225-138
Lorsqu'il existe des options de souscription ou d'achat d'actions, la société qui procède à l'achat de ses actions admises aux négociations sur un marché réglementé procède, lorsque le prix
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d'acquisition est supérieur au cours de bourse, à un ajustement du nombre d'actions que ces titres permettent d'obtenir.
Cet ajustement garantit, au centième d'action près, que la valeur des actions qui sont obtenues en cas de levée d'option après la réalisation de l'opération est identique à la valeur de celles qui auraient été obtenues en cas de levée d'option avant cette opération.
A cet effet, les nouveaux droits de souscription ou d'achat d'actions sont calculés en tenant compte du rapport entre, d'une part, le produit du pourcentage du capital racheté par la différence entre le prix de rachat et une moyenne pondérée des cours des trois dernières séances de bourse au moins qui précèdent le rachat ou la faculté de rachat et, d'autre part, cette moyenne. Les éventuels ajustements successifs sont effectués à partir de la parité qui précède immédiatement, arrondie comme il est dit à l'alinéa précédent.
Le conseil d'administration ou le directoire rend compte des éléments de calcul et des résultats de l'ajustement dans le rapport annuel suivant.
Article R225-139
Sans préjudice des dispositions du premier alinéa de l'article R. 228-91, lorsqu'une société procède à une augmentation de capital par incorporation de réserves, bénéfices ou primes d'émission et distribution d'actions gratuites, le prix de souscription ou d'achat des actions sous option, tel qu'il était fixé avant cette opération, est ajusté en faisant le produit de ce prix par le rapport entre le nombre des actions anciennes et le nombre total des actions anciennes et nouvelles ; pour l'établissement de ce rapport, il est tenu compte, le cas échéant, de l'existence de plusieurs catégories d'actions anciennes et nouvelles.
Article R225-140
Dans tous les cas mentionnés aux articles R. 225-138, R. 225-139 et R. 228-91, il est procédé à un ajustement du nombre des actions sous option, de telle sorte que le total des prix de souscription ou d'achat reste constant. Toutefois le nombre ajusté est arrondi à l'unité supérieure.
Article R225-141
L'ajustement du prix de souscription ne peut jamais avoir pour effet de ramener ce prix au-dessous du montant du nominal de l'action.
Article R225-142
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Dans le cas d'une réduction du capital motivée par des pertes, le prix de souscription ou d'achat des actions sous option, fixé avant cette opération, est ajusté en faisant le produit de ce prix par le rapport entre le nombre des actions anciennes et le nombre des actions subsistant après réduction ; pour l'établissement de ce rapport il est tenu compte, le cas échéant, de l'existence de plusieurs catégories d'actions anciennes ou nouvelles.
Il est procédé à un ajustement du nombre des actions offertes de telle sorte que le total des prix de souscription ou d'achat reste constant. Toutefois, le nombre ajusté est arrondi à l'unité supérieure.
Dans le cas d'une réduction du capital sans modification du nombre d'actions, il n'y a pas lieu à ajustement.
Article R225-143
Sans préjudice de l'incidence des ajustements prévus aux articles R. 225-137 à R. 225-142, le montant total des options ouvertes et non encore levées ne peut donner droit à souscrire un nombre d'actions excédant le tiers du capital social.
Article R225-144
Le conseil d'administration ou le directoire, selon le cas, indique dans le rapport prévu à l'article L. 225-177 les motifs de l'ouverture des options de souscription ou d'achat d'actions ainsi que les modalités proposées pour la fixation du prix de souscription ou d'achat. Les noms des bénéficiaires éventuels des options et le nombre des titres sur lesquels portent ces options peuvent ne pas être précisés.
Les commissaires aux comptes, dans le rapport prévu au même article, donnent leur avis sur les modalités proposées pour la fixation du prix de souscription ou d'achat.
Article R225-145
Les augmentations du capital rendues nécessaires par les levées d'options de souscription d'actions sont réalisées sans publication de l'avis prévu à l'article R. 225-120 et de la notice prévue à l'article R. 225-124 et sans que les mentions prévues aux 6° et 7° de l'article R. 225-128 figurent sur les bulletins de souscription. Les articles R. 225-129 à R. 225-135 ne sont pas applicables.
Les modifications statutaires apportées en application de l'article L. 225-178 sont publiées dans le délai d'un mois dans les conditions prévues à l'article R. 210-9. Dans le même délai, la modification statutaire est déclarée au greffe du tribunal de commerce et publiée conformément à l'article R. 123-99.
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Sous-section 3 : De l'amortissement du capital.
Article R225-146
Les sommes prélevées sur les profits sociaux en application du deuxième alinéa de l'article L. 225-200 sont inscrites à un compte de réserve.
Il en est de même des sommes versées par les actionnaires en application de l'article L. 225-201.
Lorsque les actions sont inégalement amorties, il est ouvert un compte de réserve pour chacune des catégories d'actions également amorties.
Article R225-147
Lorsque le montant d'un compte de réserve prévu au premier alinéa de l'article R. 225-146 est égal au montant amorti des actions ou de la catégorie d'actions correspondante, la conversion des actions amorties en actions de capital est réalisée et les statuts de la société sont modifiés conformément aux dispositions de l'article L. 225-203.
Article R225-148
Lorsque la conversion des actions amorties en actions de capital a été réalisée dans les conditions prévues à l'article L. 225-201, il est procédé, au plus tard lors de la clôture de chaque exercice, à la modification des statuts correspondant aux conversions d'actions réalisées au cours de cet exercice.
Article R225-149
Les actions intégralement ou partiellement amorties dont la conversion en actions de capital a été décidée ont droit, pour chaque exercice, et jusqu'à réalisation de cette conversion, au premier dividende ou à l'intérêt en tenant lieu calculé sur le montant, à la clôture de l'exercice précédent, du compte de réserve prévu au premier alinéa de l'article R. 225-146.
En outre, les actions partiellement amorties continuent à bénéficier du premier dividende ou de l'intérêt en tenant lieu calculé sur le montant non amorti de ces actions.
Sous-section 4 : De la réduction du capital.
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Article R225-150
Quinze jours au moins avant la réunion de l'assemblée générale appelée à statuer sur l'opération envisagée en application des articles L. 225-204 ou L. 225-209, la société adresse aux actionnaires ou met à leur disposition dans les conditions prévues aux articles R. 225-88 et R. 225-89 le rapport des commissaires aux comptes sur cette opération.
Article R225-151
Pour la détermination du plafond prévu à l'article L. 225-209, l'assemblée générale fixe le nombre maximal de titres qui pourront être acquis ainsi que le montant maximal de l'opération.
Article R225-152
Pour l'application du premier alinéa de l'article L. 225-205, le délai d'opposition des créanciers à la réduction du capital est de vingt jours à compter de la date du dépôt au greffe du procès-verbal de délibération de l'assemblée générale qui a décidé ou autorisé la réduction.
L'opposition est portée devant le tribunal de commerce.
Article R225-153
Lorsque la société a décidé de procéder à l'achat de ses propres actions en vue de les annuler et de réduire son capital à due concurrence, elle fait cette offre d'achat à tous les actionnaires.
A cette fin, un avis d'achat est inséré dans un journal habilité à recevoir les annonces légales dans le département du siège social et, en outre, si les actions de la société sont admises aux négociations sur un marché réglementé ou si toutes ses actions ne revêtent pas la forme nominative, au Bulletin des annonces légales obligatoires.
Toutefois, si toutes les actions de la société sont nominatives, les insertions prévues à l'alinéa précédent peuvent être remplacées par un avis adressé, par lettre recommandée et aux frais de la société, à chaque actionnaire.
Article R225-154
L'avis prévu à l'article R. 225-153 indique la dénomination sociale et la forme de la société, l'adresse du siège social, le montant du capital social, le nombre d'actions dont l'achat est envisagé,
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le prix offert par action, le mode de paiement, le délai pendant lequel l'offre sera maintenue et le lieu où elle peut être acceptée.
Le délai prévu à l'alinéa précédent ne peut être inférieur à vingt jours.
Article R225-155
Si les actions présentées à l'achat excèdent le nombre d'actions à acheter, il est procédé, pour chaque actionnaire vendeur, à une réduction proportionnelle au nombre d'actions dont il justifie être propriétaire ou titulaire.
Si les actions présentées à l'achat n'atteignent pas le nombre d'actions à acheter, le capital social est réduit à due concurrence des actions achetées. Toutefois, le conseil d'administration ou le directoire, selon le cas, peut décider de renouveler l'opération, dans les conditions prévues aux articles R. 225-153 et R. 225-154, jusqu'à complet achat du nombre d'actions initialement fixé sous réserve d'y procéder dans le délai indiqué par la délibération de l'assemblée générale ayant autorisé la réduction du capital.
Article R225-156
Les dispositions des articles R. 225-153 à R. 225-155 ne sont pas applicables lorsque l'assemblée générale, pour faciliter une augmentation du capital, une émission de valeurs mobilières donnant accès au capital, une fusion ou une scission, a autorisé le conseil d'administration ou le directoire, selon le cas, à acheter un petit nombre d'actions en vue de les annuler.
L'achat réalisé dans les conditions prévues à l'alinéa précédent ne peut porter, au cours d'un même exercice, que sur un nombre d'actions représentant au plus 0,25 % du montant du capital social.
Les commissaires aux comptes donnent, dans leur rapport sur l'opération projetée, leur avis sur l'opportunité et les modalités de l'achat d'actions envisagé.
Article R225-157
Les dispositions des articles R. 225-153 à R. 225-155 ne sont pas applicables aux opérations réalisées en application de l'article L. 225-209.
Article R225-158
Les actions achetées, en vue d'une réduction du capital social, par la société qui les a émises sont annulées, s'il s'agit de titres au nominatif, par apposition d'une mention sur le registre des actions
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nominatives de la société.
Lorsque les actions sont inscrites en compte conformément aux dispositions des articles R. 211-1 et suivants du code monétaire et financier, l'annulation des actions est constatée par un virement à un compte d'ordre ouvert au nom de la société, soit chez elle, soit chez un intermédiaire mentionné à l'article L. 211-3 du même code.
Lorsque la réduction de capital est effectuée selon les modalités prévues à l'article L. 225-207, les actions achetées par la société qui les a émises sont annulées un mois au plus tard après l'expiration du délai fixé à l'article R. 225-154 ou après l'achat réalisé dans les conditions prévues à l'article R. 225-156.
Sous-section 5 : De la souscription, de l'achat ou de la prise en gage par les sociétés de leurs propres actions.
Article R225-159
Le registre des achats tenu en application de l'article L. 225-211 pour relater les opérations effectuées en application de l'article L. 225-208 indique dans l'ordre des négociations réalisées :
1° La date de chaque opération ;
2° Le cours d'achat ;
3° Le nombre des actions achetées à chaque cours ;
4° Le coût total de l'achat, incluant le montant des frais.
Il indique également le nombre des actions détenues à la fin de chaque exercice et leur coût global ainsi que le nombre des actions attribuées aux salariés et la date de chaque attribution.
Article R225-160
Le registre des achats et des ventes tenu en application de l'article L. 225-211 pour relater les opérations effectuées en application de l'article L. 225-209 indique séparément les opérations d'achat et les opérations de vente.
Pour chacune de ces opérations, le registre indique, dans l'ordre des négociations réalisées :
1° La date de l'opération ;
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2° Le cours d'achat ou de vente ;
3° Le nombre des actions achetées ou vendues à chaque cours ;
4° Le coût total de l'achat, incluant le montant des frais, ou le produit net de la vente ;
5° Le nombre total des actions achetées et leur coût global ;
6° Le nom du prestataire de services d'investissements ayant exécuté l'ordre d'achat ou de vente ou le nom de l'établissement de crédit ou de l'établissement financier ayant transmis l'ordre ;
7° Le cas échéant, le nom de la personne ayant agi en son nom mais pour le compte de la société.
Le nombre et le coût total de l'achat des actions vendues sont déduits, au moins chaque semestre, du nombre des actions achetées et de leur coût global.
Section 5 : Du contrôle des sociétés anonymes.
Article R225-161
Les commissaires aux comptes établissent et déposent au siège social le rapport spécial prévu au troisième alinéa des articles L. 225-40 et L. 225-88 quinze jours au moins avant la réunion de l'assemblée générale ordinaire.
Article R225-162
Le commissaire aux comptes ne peut convoquer l'assemblée des actionnaires qu'après avoir vainement requis sa convocation du conseil d'administration ou du directoire, selon le cas, par lettre recommandée avec demande d'avis de réception.
Lorsqu'il procède à cette convocation, il fixe l'ordre du jour et peut, pour des motifs déterminants, choisir un lieu de réunion autre que celui éventuellement prévu par les statuts, mais situé dans le même département. Il expose les motifs de la convocation dans un rapport lu à l'assemblée.
En cas de pluralité de commissaire aux comptes, ils agissent d'accord entre eux. S'ils sont en désaccord sur l'opportunité de convoquer l'assemblée, l'un d'eux peut demander au président du tribunal de commerce statuant en référé l'autorisation de procéder à cette convocation, les autres commissaires et le président du conseil d'administration ou du directoire dûment appelés. L'ordonnance du président, qui fixe l'ordre du jour, n'est susceptible d'aucune voie de recours.
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Dans tous les cas, les frais entraînés par la réunion de l'assemblée sont à la charge de la société.
Article R225-163
L'expert chargé de présenter un rapport sur une ou plusieurs opérations de gestion, dans les conditions prévues à l'article L. 225-231, est désigné par le président du tribunal de commerce, statuant en la forme des référés, après que le greffier a convoqué le président du conseil d'administration ou du directoire à l'audience par lettre recommandée avec demande d'avis de réception.
Lorsque la demande d'expertise émane du procureur de la République, elle est présentée par requête ; lorsqu'elle émane de l'Autorité des marchés financiers, elle est faite par lettre recommandée avec demande d'avis de réception. Les parties autres que le procureur de la République sont convoquées à la diligence du greffier par lettre recommandée avec demande d'avis de réception.
Le rapport d'expertise est déposé au greffe. Le greffier en assure la communication.
Article R225-164
Le président du conseil d'administration ou le directoire répond par écrit dans le délai d'un mois aux questions qui lui sont posées en application de l'article L. 225-232. Dans le même délai, il adresse copie de la question et de sa réponse au commissaire aux comptes.
Section 6 : De la transformation des sociétés anonymes.
Article R225-165
La transformation de la société fait l'objet de la publicité prévue en cas de modification des statuts.
Section 7 : De la dissolution des sociétés anonymes.
Article R225-166
Dans le cas où, du fait de pertes constatées dans les documents comptables, les capitaux propres de la société deviennent inférieurs à la moitié du capital social, la décision de l'assemblée générale prévue au premier alinéa de l'article L. 225-248 est déposée au greffe du tribunal de commerce du
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lieu du siège social et inscrite au registre du commerce et des sociétés.
En outre, elle est publiée dans un journal habilité à recevoir des annonces légales conformément aux dispositions de l'article R. 210-11.
Section 8 : De la responsabilité civile.
Article R225-167
Les actionnaires qui, sur le fondement des dispositions des articles L. 225-251 et L. 225-256, entendent demander aux administrateurs, au directeur général ou aux membres du directoire la réparation du préjudice qu'ils ont subi personnellement en raison de mêmes faits peuvent donner à un ou plusieurs d'entre eux le mandat d'agir en leur nom devant les juridictions civiles, sous les conditions suivantes :
1° Le mandat est écrit et mentionne expressément qu'il donne au ou aux mandataires le pouvoir d'accomplir au nom du mandant tous les actes de procédure ; il précise, s'il y a lieu, qu'il emporte le pouvoir d'exercer les voies de recours ;
2° La demande en justice indique les nom, prénoms et adresse de chacun des mandants ainsi que le nombre des actions qu'ils détiennent. Elle précise le montant de la réparation réclamée par chacun d'eux.
Article R225-168
Les actes de procédure et de notification sont réputés valablement accomplis à l'égard du ou des seuls mandataires.
Article R225-169
S'ils représentent au moins le vingtième du capital social, des actionnaires peuvent, dans un intérêt commun, charger à leurs frais, un ou plusieurs d'entre eux de les représenter, pour soutenir, tant en demande qu'en défense, l'action sociale soit contre les administrateurs, soit contre le directeur général, soit contre les membres du directoire.
Toutefois, lorsque le capital de la société est supérieur à 750 000 Euros, le montant du capital à représenter en application de l'alinéa précédent est, selon l'importance de ce capital, réduit ainsi qu'il suit :
a) 4 % pour les 750 000 premiers euros ;
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b) 2,50 % pour la tranche de capital comprise entre 750 000 et 7 500 000 euros ;
c) 1 % pour la tranche de capital comprise entre 7 500 000 et 15 000 000 euros ;
d) 0,50 % pour le surplus du capital.
Le retrait en cours d'instance d'un ou plusieurs des actionnaires mentionnés à l'alinéa précédent, soit qu'ils aient perdu la qualité d'actionnaire, soit qu'ils se soient volontairement désistés, est sans effet sur la poursuite de l'instance.
Article R225-170
Lorsque l'action sociale est intentée par un ou plusieurs actionnaires, agissant soit individuellement, soit dans les conditions prévues à l'article R. 225-169, le tribunal ne peut statuer que si la société a été régulièrement mise en cause par l'intermédiaire de ses représentants légaux.
Le tribunal peut désigner un mandataire ad hoc pour représenter la société dans l'instance, lorsqu'il existe un conflit d'intérêt entre celle-ci et ses représentants légaux.
Section 9 : Des sociétés anonymes à participation ouvrière.
Article R225-171
Le président du tribunal de commerce du ressort du siège social de la société, statuant sur requête du président du conseil d'administration ou du directoire de la société anonyme à participation ouvrière, désigne l'expert indépendant chargé de présenter à l'assemblée générale des actionnaires le rapport sur le montant de l'indemnisation proposée aux participants et anciens participants mentionnés au deuxième alinéa de l'article L. 225-269.
Cet expert est choisi parmi les commissaires aux comptes inscrits sur la liste prévue à l'article L. 822-1.
Il est soumis aux incompatibilités prévues aux articles L. 820-6 et L. 822-10 à L. 822-14 et au code de déontologie de la profession.
Article R225-172
La requête du président du conseil d'administration ou du directoire de la société anonyme à participation ouvrière intervient trois mois au moins avant la date de l'assemblée générale
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extraordinaire appelée à statuer sur l'indemnisation.
Le rapport de l'expert est déposé au siège social trente-cinq jours au moins avant la date de réunion de l'assemblée générale extraordinaire appelée à statuer sur l'indemnisation et est tenu à la disposition des actionnaires et des mandataires sociaux de la société coopérative de main-d'oeuvre.
Chapitre VI : Des sociétés en commandite par actions.
Article R226-1
Dans la mesure où elles sont compatibles avec les dispositions particulières prévues par les articles L. 226-1 à L. 226-14, les règles édictées par le présent livre et concernant les sociétés en commandite simple et les sociétés anonymes, à l'exception des articles R. 225-15 à R. 225-60, sont applicables aux sociétés en commandite par actions.
Article R226-2
Les dispositions des articles R. 225-30 et R. 225-31 sont applicables aux conventions mentionnées à l'article L. 226-10.
L'avis prévu au premier alinéa de l'article R. 225-30 est donné par le président du conseil de surveillance.
Article R226-3
Les dispositions des articles R. 225-110 à R. 225-112 sont applicables aux gérants et membres du conseil de surveillance.
Chapitre VII : Des sociétés par actions simplifiées.
Article R227-1
Pour l'application de l'article L. 227-9-1 relatif à la désignation d'un commissaire aux comptes, le total du bilan est fixé à 1 000 000 €, le montant hors taxe du chiffre d'affaires à 2 000 000 € et le nombre moyen de salariés permanents employés au cours de l'exercice à vingt. Le total du bilan, le montant hors taxe du chiffre d'affaires et le nombre moyen de salariés sont déterminés conformément aux quatrième, cinquième et sixième alinéas de l'article R. 123-200. La société n'est
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plus tenue de désigner un commissaire aux comptes dès lors qu'elle n'a pas dépassé les chiffres fixés pour deux de ces trois critères pendant les deux exercices précédant l'expiration du mandat du commissaire aux comptes. Dans le cas prévu au quatrième alinéa de l'article L. 227-9-1, le commissaire aux comptes est désigné par ordonnance du président du tribunal de commerce statuant en la forme des référés.
Chapitre VIII : Des valeurs mobilières émises par les sociétés par actions.
Section 1 : Dispositions communes.
Article R228-1
L'intermédiaire mentionné aux septième et huitième alinéas de l'article L. 228-1 déclare sa qualité d'intermédiaire inscrit pour le compte de tiers, dès l'ouverture du compte, auprès de la société émettrice, auprès d'un intermédiaire mentionné à l'article L. 211-3 du code monétaire et financier ou auprès d'un dépositaire central lorsque l'intermédiaire inscrit a ouvert un compte de titres dans les livres de ce dépositaire central.
Article R228-2
Lorsque les titres revêtent la forme de titres nominatifs administrés, l'intermédiaire mentionné à l'article L. 211-3 du code monétaire et financier transmet immédiatement cette déclaration à la société émettrice.
Article R228-3
Lorsqu'en application des dispositions du II de l'article L. 228-2 et du I de l'article L. 228-3-1, la société émettrice demande directement des informations aux personnes figurant sur la liste transmise par le dépositaire central des titres ou par l'intermédiaire inscrit, ces personnes sont tenues de répondre soit directement à la société, soit au teneur de compte-conservateur habilité qui transmet à son tour la réponse à la société.
Article R228-4
Le délai donné aux teneurs de compte-conservateurs mentionnés au deuxième alinéa du I de l'article L. 228-2 est de dix jours ouvrables à compter de la demande.
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Article R228-5
Le délai donné à l'intermédiaire inscrit en vertu du premier alinéa de l'article L. 228-3 est de dix jours ouvrables à compter de la demande.
Article R228-6
L'intermédiaire inscrit bénéficiaire d'un mandat mentionné à l'article L. 228-3-2 peut transmettre ou émettre sous sa signature les votes des propriétaires d'actions. Les mandats et procurations sont conservés durant un délai de trois ans à compter de l'assemblée générale au cours de laquelle ont été exercés les droits de vote.
Article R228-7
La société tient à jour la liste des personnes titulaires d'actions nominatives, avec l'indication du domicile déclaré par chacune d'elles.
Article R228-8
Les registres de titres nominatifs émis par une société sont établis par cette société ou par une personne qu'elle habilite à cet effet.
Ils peuvent être constitués par la réunion, dans l'ordre chronologique de leur établissement, de feuillets identiques utilisés sur une seule face. Chacun de ces feuillets est réservé à un titulaire de titres à raison de sa propriété ou à plusieurs titulaires à raison de leur copropriété, de leur bail, de leur nue-propriété ou de leur usufruit sur ces titres.
En outre, il peut être tenu des fichiers contenant, par ordre alphabétique, les noms et adresses des titulaires de titres, ainsi que l'indication du nombre, de la catégorie et, le cas échéant, des numéros des titres de chaque titulaire. Les mentions de ces fichiers ne peuvent faire preuve contre celles contenues dans les registres.
Article R228-9
Les registres mentionnés à l'article R. 228-8 contiennent les indications relatives aux opérations de transfert et de conversion des titres, et notamment :
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1° La date de l'opération ;
2° Les nom, prénoms et domicile de l'ancien et du nouveau titulaire des titres, en cas de transfert ;
3° Les nom, prénoms et domicile du titulaire des titres, en cas de conversion de titres au porteur en titres nominatifs ;
4° La valeur nominale et le nombre de titres transférés ou convertis. Toutefois, lorsque ces titres sont des actions, le capital social et le nombre de titres représenté par l'ensemble des actions de la même catégorie peuvent être indiqués en lieu et place de leur valeur nominale ;
5° Le cas échéant, si la société a émis des actions de différentes catégories et s'il n'est tenu qu'un seul registre des actions nominatives, la catégorie et les caractéristiques des actions transférées ou converties ;
6° Un numéro d'ordre affecté à l'opération.
En cas de transfert, le nom de l'ancien titulaire des titres peut être remplacé par un numéro d'ordre permettant de retrouver ce nom dans les registres.
Article R228-10
Pour l'application de la dernière phrase du neuvième alinéa de l'article L. 228-1, l'inscription au compte de l'acheteur est faite à la date fixée par l'accord des parties et notifiée à la société émettrice.
Article R228-11
La mise en vente par la société des titres non réclamés par les ayants droit, prévue à l'article L. 228-6, est précédée de la publication d'un avis dans deux journaux à diffusion nationale ; cet avis les met en demeure de faire valoir leurs droits dans un délai de deux ans et les informe que la société procédera à la vente à l'expiration de ce délai.
Ce même avis informe les ayants droit que la société tiendra le produit net de la vente des titres à leur disposition pendant dix ans à un compte bloqué dans un établissement de crédit.
Article R228-12
La vente des titres par la société a lieu sur le marché réglementé aux négociations duquel ils sont admis.
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A défaut, la vente est faite aux enchères publiques dans les conditions prévues par l'article L. 211-21 du code monétaire et financier.
Article R228-13
Pour l'application de l'article L. 228-6-1, la période à l'issue de laquelle a lieu la vente globale des actions non attribuées correspondant aux droits formant rompus ne peut excéder trente jours à compter de la plus tardive des dates d'inscription au compte des titulaires des droits du nombre entier d'actions attribuées. La vente est faite selon les modalités prévues à l'article R. 228-12.
Article R228-14
Pour l'application de l'article L. 228-6-3, la vente a lieu, selon les modalités prévues à l'article R. 228-12, à l'expiration d'un délai d'un an après la publicité effectuée dans les conditions prévues à l'article R. 228-11 si, pendant cette période, les personnes au nom desquelles l'inscription a été faite ou leurs ayants droit n'ont pu être atteintes par l'avis mentionné à l'article R. 228-11 adressé par lettre recommandée avec demande d'avis de réception.
Section 2 : Des actions.
Sous-section 1 : De l'émission, du rachat et de la conversion des actions de préférence.
Article R228-15
En cas de conversion d'actions de préférence en actions aboutissant à une réduction de capital non motivée par des pertes, les dispositions de l'article R. 225-152 s'appliquent.
Une décision de justice rejette l'opposition ou ordonne soit le remboursement des créances, soit la constitution de garanties si la société en offre et si elles sont jugées suffisantes.
Si le juge de première instance accueille l'opposition, la procédure de conversion est immédiatement interrompue jusqu'à la constitution de garanties suffisantes ou jusqu'au remboursement des créances. S'il la rejette, les opérations de conversion peuvent commencer.
Article R228-16
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L'assemblée spéciale, statuant dans les conditions prévues à l'article L. 225-99 sur les questions qui lui sont soumises pour approbation et composée des titulaires d'actions de préférence intéressés, est convoquée dans les mêmes formes et se tient au plus tard le même jour que l'assemblée générale.
Article R228-17
En cas d'émission d'actions de préférence dans les conditions prévues à l'article L. 228-12, le rapport du conseil d'administration ou du directoire indique les caractéristiques des actions de préférence et précise l'incidence de l'opération sur la situation des titulaires de titres de capital et de valeurs mobilières donnant accès au capital. Il est conforme aux règles posées par les articles R. 225-113 et R. 225-114, ainsi que, selon les cas, par les articles R. 225-115 ou R. 225-116.
Le commissaire aux comptes donne son avis sur l'augmentation de capital envisagée, les caractéristiques des actions de préférence et l'incidence de l'opération sur la situation des titulaires de titres de capital et de valeurs mobilières donnant accès au capital telle que définie au premier alinéa de l'article R. 225-115. Le cas échéant, ce rapport est conforme aux règles posées par l'article R. 225-114, ainsi que, selon les cas, par les articles R. 225-115 ou R. 225-116.
Article R228-18
Le rapport du conseil d'administration ou du directoire à l'assemblée générale extraordinaire appelée à se prononcer sur la conversion prévue aux articles L. 228-12, L. 228-14 et au second alinéa de l'article L. 228-15 indique les conditions de celle-ci, les modalités de calcul du rapport de conversion et les modalités de sa réalisation. Il précise l'incidence de l'opération sur la situation des titulaires de titres de capital et de valeurs mobilières donnant accès au capital telle que définie au premier alinéa de l'article R. 225-115. Le cas échéant, il indique les caractéristiques des actions de préférence issues de la conversion.
Le commissaire aux comptes donne son avis sur la conversion ainsi que sur l'incidence de l'opération sur la situation des titulaires de titres de capital et de valeurs mobilières donnant accès au capital telle que définie au premier alinéa de l'article R. 225-115 et indique si les modalités de calcul du rapport de conversion sont exactes et sincères.
Article R228-19
Pour l'application du premier alinéa de l'article L. 228-12 et de l'article L. 228-20, le rapport du conseil d'administration ou du directoire précise les conditions du rachat ou du remboursement, ainsi que les justifications et les modalités de calcul du prix proposé.
Il précise l'incidence de l'opération sur la situation des titulaires de titres de capital et de valeurs mobilières donnant accès au capital telle que définie au premier alinéa de l'article R. 225-115.
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Le commissaire aux comptes donne son avis sur l'offre de rachat ou de remboursement ainsi que sur l'incidence de l'opération sur la situation des titulaires de titres de capital et de valeurs mobilières donnant accès au capital telle que définie au premier alinéa de l'article R. 225-115 et indique si les modalités de calcul du prix de rachat sont exactes et sincères.
Article R228-20
Lorsque l'assemblée générale extraordinaire se prononce sur l'inscription dans les statuts des modalités de conversion, de rachat ou de remboursement des actions de préférence, le rapport du conseil d'administration ou du directoire indique les modalités de conversion, de rachat ou de remboursement, ainsi que les modalités de mise à disposition des actionnaires des rapports du conseil d'administration ou du directoire et du commissaire aux comptes prévus aux articles R. 228-18 ou R. 228-19. Le cas échéant, il précise les critères d'appréciation de l'absence de liquidité du marché mentionnée à l'article L. 228-20. Ces indications sont portées dans les statuts.
Le commissaire aux comptes donne son avis sur ces modalités de conversion, de rachat ou de remboursement.
Article R228-21
Les rapports mentionnés aux articles R. 228-17 à R. 228-20 sont transmis aux assemblées spéciales des titulaires d'actions de préférence intéressés lorsqu'elles doivent approuver ces modifications. Ils sont tenus à la disposition de ces derniers au siège de la société à compter de la date de la convocation de l'assemblée spéciale dans les conditions prévues à l'article R. 225-88 et au deuxième alinéa de l'article R. 225-89.
Article R228-22
Le rapport spécial du commissaire aux comptes de la société établi en application de l'article L. 228-19 comprend son avis sur le respect par la société des droits particuliers attachés aux actions de préférence et indique, le cas échéant, la date à partir de laquelle ces droits ont été méconnus.
Les frais relatifs à l'établissement du rapport sont à la charge de la société.
Le rapport est tenu à la disposition des actionnaires, au siège social, quinze jours au moins avant la date de l'assemblée spéciale au cours de laquelle il est présenté.
Sous-section 2 : Des clauses d'agrément de la cession de titres de capital ou de valeurs mobilières donnant accès au capital.
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Article R228-23
La demande d'agrément du cessionnaire prévue au premier alinéa de l'article L. 228-24 est notifiée à la société par acte extrajudiciaire ou par lettre recommandée avec demande d'avis de réception.
La désignation de l'expert prévue à l'article 1843-4 du code civil est faite par le président du tribunal de commerce ; celui-ci accorde par ordonnance de référé, l'actionnaire cédant et le cessionnaire dûment appelés, la prolongation de délai prévue au troisième alinéa de l'article L. 228-24. Ces ordonnances ne sont pas susceptibles de recours.
Sous-section 3 : De la défaillance de l'actionnaire.
Article R228-24
Pour l'application de l'article L. 228-27, l'actionnaire défaillant est mis en demeure par lettre recommandée avec demande d'avis de réception.
La vente des actions non admises aux négociations sur un marché réglementé est effectuée aux enchères publiques par un prestataire de services d'investissement ou par un notaire dans les conditions prévues à l'article L. 211-21 du code monétaire et financier.A cet effet, la société publie dans un journal habilité à recevoir les annonces légales dans le département du siège social, trente jours au moins après la mise en demeure prévue à l'alinéa précédent, le nombre d'actions mises en vente. Elle avise le débiteur et, le cas échéant, ses codébiteurs de la mise en vente, par lettre recommandée contenant l'indication de la date et du numéro du journal dans lequel la publication a été effectuée. Il ne peut être procédé à la mise en vente des actions moins de quinze jours après l'envoi de la lettre recommandée.
Article R228-25
L'inscription de l'actionnaire défaillant est rayée de plein droit dans le registre des actions nominatives de la société. Si les titres délivrés revêtent la forme nominative, l'acquéreur est inscrit et de nouveaux certificats indiquant la libération des versements appelés et portant la mention " duplicatum " sont délivrés.
Lorsque les actions étaient inscrites en compte chez l'émetteur conformément aux dispositions des articles R. 211-1 et R. 211-4 du code monétaire et financier, l'inscription en compte de l'actionnaire défaillant est annulée de plein droit. L'acquéreur est inscrit et de nouvelles attestations indiquant la libération des versements appelés et portant la mention " duplicatum " sont délivrées.
Le produit net de la vente revient à la société à due concurrence et s'impute sur ce qui est dû en principal et intérêts par l'actionnaire défaillant et ensuite sur le remboursement des frais exposés par
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la société pour parvenir à la vente. L'actionnaire défaillant reste débiteur ou profite de la différence.
Article R228-26
Le délai mentionné au premier alinéa de l'article L. 228-29 est de trente jours à compter de la mise en demeure prévue par le premier alinéa de l'article L. 228-27.
Sous-section 4 : Du regroupement d'actions non admises aux négociations sur un marché réglementé.
Article R228-27
Le montant prévu à l'article L. 228-29-1 est de 3,81 euros.
Le montant prévu au deuxième alinéa de l'article L. 228-29-2 est de 15,25 euros.
Article R228-28
Les décisions d'assemblées générales d'actionnaires, relatives au regroupement d'actions, prévues aux articles L. 228-29-1 et L. 228-29-2, sont prises, dans les conditions prévues pour la modification des statuts, sur la proposition d'un gérant ou du conseil d'administration ; cette proposition porte notamment sur le prix de négociation des rompus et les engagements relatifs à cette négociation prévus à l'article L. 228-29-2.
Le conseil de surveillance ou les commissaires aux comptes donnent, dans un rapport spécial à l'assemblée, leur avis sur les propositions du gérant ou du conseil d'administration ; ils indiquent si le prix proposé leur paraît réel et sérieux et si les engagements pris pour l'application de l'article L. 228-29-2 leur paraissent de nature à assurer en toute hypothèse la contrepartie prévue à cet article. L'assemblée générale fixe les bases du regroupement et arrête le prix prévu à l'article L. 228-29-2.
Article R228-29
Les engagements prévus à l'article L. 228-29-2 sont portés à la connaissance de l'assemblée générale par le gérant ou le conseil d'administration et reproduits dans le rapport du conseil de surveillance ou des commissaires aux comptes.
Article R228-30
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Le délai prévu à l'alinéa premier de l'article L. 228-29-3 est de deux ans à compter de la date initiale des opérations de regroupement.
Les actionnaires qui ont pris l'engagement prévu par l'article L. 228-29-2 disposent, pour procéder au regroupement de leurs actions, d'un délai supplémentaire d'un mois à compter de l'expiration du délai prévu au premier alinéa.
Les dispositions du premier alinéa de l'article L. 228-29-3 ne sont pas applicables pendant ce délai supplémentaire aux actions qui leur appartiennent.
Article R228-31
Les décisions des assemblées générales d'actionnaires mentionnées à l'article R. 228-28 sont publiées au Bulletin des annonces légales obligatoires.
Cette publication indique la date à laquelle débuteront les opérations de regroupement ; cette date est postérieure de quinze jours au moins à celle de la publication.
Cette publication indique en outre :
1° La dénomination sociale et la forme de la société ;
2° Son siège social ;
3° Le montant de son capital social ;
4° Le nombre des actions soumises au regroupement et la valeur nominale de chacune d'elles ;
5° Le nombre des actions à provenir du regroupement et la valeur nominale de chacune d'elles ;
6° Les bases d'échange des actions soumises au regroupement contre les actions à provenir du regroupement ;
7° Le prix de négociation des actions anciennes formant rompus, arrêté par l'assemblée générale dans les conditions prévues à l'article R. 228-28 ;
8° Les noms et adresses du ou des actionnaires qui auront pris l'engagement prévu à l'article L. 228-29-2 ;
9° La date de l'assemblée générale ayant décidé le regroupement ;
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10° La date à laquelle expire le délai prévu au premier alinéa de l'article R. 228-30 ;
11° Le ou les lieux où les actions anciennes devront être présentées aux fins de regroupement et où devront être déposées les demandes d'acquisition ou de cessions d'actions anciennes formant rompus.
Article R228-32
Les actions en nullité prévues par le deuxième alinéa de l'article L. 228-29-6 se prescrivent par cinq ans à compter de l'expiration du délai prévu au premier alinéa de l'article R. 228-30.
Section 3 : Dispositions applicables aux catégories de titres en voie d'extinction.
Sous-section 1 : Des certificats d'investissement.
Article R228-33
L'assemblée spéciale des titulaires de certificats d'investissement est convoquée en même temps et dans les mêmes formes que l'assemblée générale des actionnaires qui décide de l'augmentation de capital ou de l'émission de valeurs mobilières donnant accès au capital.
Les dispositions des articles R. 225-62, R. 225-63, R. 225-66 à R. 225-70, des premier au dixième et du treizième alinéas de l'article R. 225-73, et de l'article R. 225-87 sont applicables à la convocation des titulaires de certificats d'investissement en assemblée spéciale.
Article R228-34
L'assemblée spéciale des titulaires de certificats d'investissement appelée à statuer sur la proposition de suppression du droit préférentiel de souscription est réunie avant l'assemblée générale des actionnaires et, le cas échéant, avant l'assemblée spéciale des porteurs d'actions à dividende prioritaire sans droit de vote prévue à l'article R. 225-96 et avant les assemblées spéciales des porteurs d'actions de préférence.
Les dispositions des articles R. 225-95, R. 225-100, R. 225-101, R. 225-106 à R. 225-108, à l'exception de celles relatives à la visioconférence et au vote électronique, sont applicables aux assemblées spéciales des titulaires de certificats d'investissement.
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Article R228-35
Le droit de participer à l'assemblée spéciale des titulaires de certificats d'investissement peut être subordonné aux mêmes conditions que celles qui peuvent être imposées par la société à ses actionnaires conformément à l'article R. 225-85, à l'exception des dispositions de cet article relatives au vote électronique.
Article R228-36
La représentation à l'assemblée spéciale d'un titulaire de certificats d'investissement est régie par les articles R. 225-79 et R. 225-81, à l'exception des dispositions de ces articles relatives au vote électronique. A toute formule de procuration adressée à un titulaire de certificats d'investissement par la société ou le mandataire qu'elle a désigné à cet effet sont joints l'ordre du jour de l'assemblée spéciale, le texte des résolutions qui y sont présentées et une formule de demande d'envoi des documents et renseignements prévus à l'article R. 225-83.
Article R228-37
Les titulaires de certificats d'investissement exercent leur droit de communication des documents sociaux dans les conditions prévues aux articles L. 225-115 à L. 225-118 et conformément aux dispositions des articles R. 225-88 à R. 225-94.
Article R228-38
Toute renonciation à une offre d'attribution d'action de préférence sans droit de vote et assortie des mêmes droits que les certificats d'investissement est effectuée dans le délai imparti à cet effet par la société et indiqué dans l'offre. A défaut de désignation des bénéficiaires, la renonciation est réputée faite au profit de l'ensemble des porteurs concernés par l'offre et les actions de préférence correspondantes sont attribuées aux porteurs qui n'ont pas renoncé à cette attribution complémentaire. Les rompus sont répartis selon les règles fixées par l'assemblée générale.
Article R228-39
La déclaration prévue au sixième alinéa de l'article L. 228-30 est faite par lettre simple ou recommandée.
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Sous-section 2 : Les actions à dividende prioritaire sans droit de vote.
Article R228-40
L'assemblée spéciale des titulaires d'actions à dividende prioritaire sans droit de vote, lorsqu'elle est réunie pour donner son avis sur toute décision des assemblées générales ordinaire ou extraordinaire, est convoquée en même temps que chacune de ces assemblées.
Article R228-41
L'assemblée spéciale est convoquée dans les mêmes formes que l'assemblée générale et se tient le même jour. Le conseil ou le directoire lui présente un rapport sur les résolutions soumises à l'assemblée générale.
Article R228-42
L'assemblée spéciale statuant dans les conditions prévues à l'article L. 225-99 sur les questions qui lui sont soumises pour approbation ou accord et composée, le cas échéant, des seuls titulaires d'actions prioritaires sans droit de vote concernés est réunie au plus tard dans le mois de la date de l'assemblée générale.
Article R228-43
Le rapport du conseil d'administration ou du directoire à l'assemblée spéciale appelée à se prononcer sur la conversion prévue à l'article L. 228-35-3 indique les conditions de celle-ci, les modalités de calcul du rapport de conversion et les modalités de sa réalisation.
Le commissaire aux comptes donne son avis sur l'offre de conversion et indique si les modalités de calcul du rapport de conversion sont exactes et sincères.
Article R228-44
Pour l'application du troisième alinéa de l'article L. 228-35-10, la société fournit aux actionnaires vendeurs, à l'appui de son offre de rachat, les justifications et les modalités de calcul du prix proposé.
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Article R228-45
Les convocations aux assemblées d'actionnaires à dividende prioritaire sans droit de vote sont faites dans les conditions prévues aux articles R. 225-62, R. 225-63, R. 225-65 à R. 225-69 et, le cas échéant, R. 225-70.
L'ordre du jour figurant sur l'avis de convocation comprend l'indication qu'il pourra être procédé à la désignation du ou des mandataires prévus au quatrième alinéa de l'article L. 228-35-6.
Article R228-46
La représentation des actionnaires aux assemblées spéciales est régie par les articles R. 225-79 à R. 225-82.
Cependant, le mandat prévu à l'article R. 225-79 peut être donné pour toutes les assemblées spéciales dont l'ordre du jour se rattache à celui de l'assemblée générale qui a nécessité leur convocation.
Article R228-47
Les articles R. 225-83 à R. 225-94 sont applicables aux titulaires d'actions à dividende prioritaire sans droit de vote.
Article R228-48
Les assemblées des titulaires d'actions à dividende prioritaire sans droit de vote sont soumises en tant que de besoin aux dispositions des articles R. 225-95 à R. 225-101 et R. 225-106 à R. 225-108.
Section 4 : Des titres participatifs.
Article R228-49
L'assiette de la partie variable de la rémunération des titres participatifs ne peut être supérieure à 40 % du montant nominal du titre.
Les éléments retenus pour le calcul de la partie variable de la rémunération sont tirés des comptes
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annuels approuvés ou, s'il y a lieu, des comptes consolidés.
Article R228-50
L'assemblée générale des porteurs de titres participatifs se réunit au moins une fois par an, le jour où se réunit l'assemblée générale des actionnaires ou, dans les entreprises publiques qui n'en sont pas pourvues, du conseil d'administration qui statue sur les comptes de l'exercice écoulé, ou dans les quinze jours qui précèdent.
Article R228-51
La société qui émet des titres participatifs rend publiques, avant l'ouverture de leur souscription par le public, les conditions de l'émission, selon les modalités prévues à l'article L. 412-1 du code monétaire et financier.
Article R228-52
Les titres participatifs remis aux souscripteurs contiennent les indications suivantes :
1° La dénomination sociale, suivie, le cas échéant, de son sigle ;
2° La forme de la société émettrice ;
3° Le montant du capital social ;
4° L'adresse du siège social ;
5° La date d'immatriculation de la société au registre du commerce et des sociétés et les mentions prévues aux 1° et 2° de l'article R. 123-237 ;
6° La date d'expiration normale de la société ;
7° Le montant, lors de l'émission, des titres garantis par la société ;
8° Le montant de l'émission ;
9° La valeur nominale du titre ;
10° Le taux et l'époque du paiement de l'intérêt et des autres produits ;
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11° L'époque et les conditions de remboursement ainsi que les conditions de rachat du titre ;
12° Les garanties attachées aux titres, sauf lorsque les titres d'emprunt bénéficient de la garantie de l'Etat, de départements, de communes ou d'établissements publics, ou lorsqu'ils sont émis par le crédit foncier de France ou la société anonyme Natexis ou toute société qu'elle contrôle au sens de l'article L. 233-3 ;
13° Le montant non amorti, lors de l'émission, des titres d'emprunt antérieurement émis ;
14° S'il s'agit de titres convertibles en actions, le ou les délais d'exercice de l'option accordée aux porteurs pour convertir leurs titres ainsi que les bases de cette conversion ;
15° S'il s'agit de titres échangeables, les modalités et conditions fixées pour l'échange, avec l'indication des personnes qui se sont obligées à assurer cet échange ;
16° Le tableau d'amortissement de l'emprunt.
Article R228-53
Les articles R. 228-60 à R. 228-78 et R. 228-80 à R. 228-86 sont applicables en cas d'émission de titres participatifs. A cet effet, les règles prévues par ces articles et concernant la société débitrice de l'emprunt obligataire, l'émission des obligations et les obligataires sont applicables respectivement à la société émettrice des titres participatifs, à l'émission de tels titres et à leurs porteurs.
Article R228-54
Le droit des porteurs de titres participatifs d'obtenir la communication des documents sociaux s'exerce conformément aux articles R. 225-92 à R. 225-94.
Article R228-55
Une société peut racheter sur un marché réglementé les titres participatifs qu'elle a émis selon les modalités prévues aux articles R. 225-159 et R. 225-160. Ces titres sont cédés dans un délai d'un an. A l'expiration de ce délai, ils sont annulés.
Article D228-56
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Lorsque la masse des porteurs prévue par l'article L. 228-37 est constituée de porteurs de titres émis par un établissement public de l'Etat à caractère industriel et commercial soumis aux règles de la comptabilité publique, le rapport sur les comptes de l'exercice et sur les éléments servant à la détermination de la rémunération des titres participatifs est établi par l'agent comptable de l'établissement.
Section 5 : Des obligations.
Article R228-57
La société mentionnée à l'article L. 228-43 rend publiques, avant l'ouverture de la souscription des obligations par le public, les conditions d'émission selon les modalités prévues à l'article L. 412-1 du code monétaire et financier.
Article R228-60
Dans les cas prévus par l'article L. 228-50 et par le deuxième alinéa de l'article L. 228-51, les représentants de la masse sont désignés par le président du tribunal de grande instance statuant en référé.
Les fonctions des représentants de la masse désignés en application de l'alinéa précédent prennent fin lors de la première réunion de l'assemblée générale ordinaire des obligataires. Celle-ci peut nommer les mêmes représentants.
Article R228-61
Toute décision de l'assemblée générale des obligataires relative à la désignation ou au remplacement des représentants de la masse est notifiée par ces derniers à la société débitrice et publiée, à la diligence de celle-ci, dans le délai d'un mois à compter de la délibération de l'assemblée, dans un journal habilité à recevoir des annonces légales du département du siège social et, en outre, si les obligations de la société sont admises aux négociations sur un marché réglementé ou si toutes ses obligations ne revêtent pas la forme nominative, au Bulletin des annonces légales obligatoires.
L'ordonnance du président du tribunal de grande instance nommant un représentant de la masse est publiée dans les mêmes conditions et délais.
Lorsque le mandat de représentant de la masse est confié à une association ou à une société, les nom, prénoms et domicile des personnes habilitées à agir au nom de l'association ou de la société sont indiqués dans la notification et la publication prévues aux alinéas précédents.
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Article R228-62
Le représentant de la masse notifie sa démission à la société débitrice par lettre recommandée avec demande d'avis de réception.
Article R228-63
Lorsqu'elle n'a été déterminée ni par le contrat d'émission ni par l'assemblée générale des obligataires, la rémunération des représentants de la masse est fixée par le président du tribunal de grande instance, statuant sur requête, à la demande de la société ou du représentant de la masse intéressé.
Le montant de la rémunération allouée par l'assemblée générale des obligataires peut être réduit, à la demande de la société, par le président du tribunal de grande instance statuant en référé.
Article R228-64
Tout intéressé a le droit d'obtenir, au siège de la société débitrice, les noms et adresses des représentants de la masse.
Article R228-65
La demande tendant à la convocation de l'assemblée générale des obligataires, dans les conditions prévues au deuxième alinéa de l'article L. 228-58, est effectuée par acte extrajudiciaire ou par lettre recommandée avec demande d'avis de réception. Elle indique l'ordre du jour à soumettre à l'assemblée.
Le délai mentionné au troisième alinéa de l'article L. 228-58 est de deux mois à compter de la demande de convocation. Le mandataire prévu au même alinéa est désigné par le président du tribunal de grande instance statuant en référé, qui fixe l'ordre du jour de l'assemblée.
Article R228-66
Outre les mentions prévues à l'article R. 225-66, l'avis de convocation de l'assemblée générale des obligataires contient les indications suivantes :
1° L'indication de l'emprunt souscrit par les obligataires dont la masse est convoquée en assemblée ;
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2° Le nom et le domicile de la personne qui a pris l'initiative de la convocation et la qualité en laquelle elle agit ;
3° Le cas échéant, la date de la décision de justice désignant le mandataire chargé de convoquer l'assemblée.
Article R228-67
L'avis de convocation est inséré dans un journal habilité à recevoir les annonces légales dans le département du siège social et, en outre, si les obligations de la société sont admises aux négociations sur un marché réglementé ou si toutes ses obligations ne revêtent pas la forme nominative, au Bulletin des annonces légales obligatoires.
Si toutes les obligations émises par la société sont nominatives, les insertions prévues à l'alinéa précédent peuvent être remplacées par une convocation faite aux frais de la société, par lettre simple ou recommandée adressée à chaque obligataire. Cette convocation peut également être transmise par un moyen électronique de télécommunication mis en oeuvre dans les conditions mentionnées à l'article R. 225-63 à l'adresse indiquée par l'obligataire. Dans le cas d'obligations indivises, les convocations sont adressées à tous les co-indivisaires. Lorsque les obligations sont grevées d'un usufruit, la convocation est adressée au nu-propriétaire.
Article R228-68
Les dispositions de la section 3 du chapitre V du titre II du présent livre relatives à la visioconférence, aux moyens de télécommunication, au vote électronique et au vote par correspondance sont applicables à la présente section.
Article R228-69
Les dispositions des articles R. 225-69 et R. 225-70 sont applicables aux convocations des assemblées générales d'obligataires.
Article R228-70
Les dispositions des articles R. 225-72 à R. 225-74 ne sont pas applicables aux assemblées d'obligataires.
Article R228-71
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Il est justifié du droit de participer aux assemblées d'obligataires par l'inscription des obligations, au jour de l'assemblée générale, soit dans les comptes de titres nominatifs tenus par la société, soit dans les comptes de titres au porteur tenus par un intermédiaire mentionné à l'article L. 211-3 du code monétaire et financier. Toutefois, il peut être prévu, par une disposition spéciale du contrat d'émission, qu'il sera justifié du droit de participer aux assemblées d'obligataires par l'inscription des obligations dans les mêmes comptes au troisième jour ouvré précédant l'assemblée à zéro heure, heure de Paris.
L'obligataire qui a déjà exprimé son vote à distance ou envoyé un pouvoir peut à tout moment céder tout ou partie de ses obligations. En cas de cession intervenant avant le jour de la séance ou la date fixée par le contrat d'émission en application de la dernière phrase du premier alinéa, et sauf dispositions particulières du contrat d'émission, la société invalide ou modifie en conséquence, avant l'ouverture de la séance de l'assemblée, le vote exprimé à distance ou le pouvoir de cet obligataire. Le cas échéant, l'intermédiaire teneur de compte notifie la cession à la société ou à son mandataire et lui transmet les informations nécessaires à cette fin.
Article R228-72
Sauf clause contraire du contrat d'émission, l'assemblée générale des obligataires est réunie au siège de la société débitrice ou en tout autre lieu du même département.
Toutefois, l'assemblée générale des seuls obligataires dont le montant nominal unitaire des titres est au moins égal à 50 000 euros peut être réunie dans tout Etat membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen, à la condition que tous les moyens et toutes les informations nécessaires pour permettre à ces obligataires d'exercer leurs droits soient disponibles dans cet Etat.
Article R228-73
Les dispositions des articles R. 225-95, R. 225-101, R. 225-106 et R. 225-107 sont applicables aux assemblées d'obligataires.
Article R228-74
L'assemblée générale des obligataires fixe le lieu où sont déposés, avec la feuille de présence, les pouvoirs des obligataires représentés et les procès-verbaux.
Les copies ou extraits de procès-verbaux sont certifiés par un représentant de la masse ou par le secrétaire de l'assemblée.
Article R228-75
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Les dispositions de l'article R. 225-79 sont applicables aux procurations données par les obligataires pour être représentés aux assemblées.
Article R228-76
En application des dispositions du premier alinéa de l'article L. 228-69, l'obligataire a le droit, pendant le délai de quinze jours qui précède la réunion de l'assemblée générale de la masse à laquelle il appartient, de prendre par lui-même ou par mandataire, au siège de la société débitrice, au lieu de la direction administrative ou, le cas échéant, en tout autre lieu fixé par la convocation, connaissance ou copie du texte des résolutions qui sont proposées et des rapports qui sont présentés à l'assemblée générale.
Le droit pour tout obligataire de prendre connaissance ou copie des procès-verbaux et feuilles de présence des assemblées générales de la masse à laquelle il appartient s'exerce au lieu de dépôt choisi par l'assemblée. L'obligataire exerce ce droit par lui-même ou par mandataire.
Article R228-77
Tout intéressé a le droit, à toute époque, d'obtenir de la société débitrice, l'indication du nombre des obligations émises et de celui des titres non encore remboursés.
Article R228-78
Dans le cas prévu par la deuxième phrase du premier alinéa de l'article L. 228-71, il est statué par ordonnance sur requête, non susceptible de recours, du président du tribunal de grande instance.
Article R228-79
Dans le cas prévu à l'article L. 228-72, la décision du conseil d'administration, du directoire ou des gérants de passer outre au refus d'approbation par l'assemblée générale des obligataires est publiée dans le journal habilité à recevoir des annonces légales dans lequel a été inséré l'avis de convocation de l'assemblée et, si les obligations de la société sont admises aux négociations sur un marché réglementé ou si toutes ses obligations ne revêtent pas la forme nominative, au Bulletin des annonces légales obligatoires. Cette dernière insertion mentionne le titre et le lieu de publication du journal habilité à recevoir des annonces légales dans lequel a été effectuée la première insertion, ainsi que la date de celle-ci.
Le remboursement est demandé par l'obligataire dans le délai de trois mois à compter de l'insertion ou de la dernière des insertions prévues à l'alinéa précédent.
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La société rembourse les obligations dans le délai de trente jours à compter de la demande de chaque obligataire.
Article R228-80
Dans les cas prévus à l'article L. 228-73, la décision du conseil d'administration, du directoire ou des gérants de passer outre est publiée dans les conditions prévues au premier alinéa de l'article R. 228-79.
Article R228-81
A la diligence de la société, et dans le délai de trente jours à compter de la date de l'acte authentique mentionné au deuxième alinéa de l'article L. 228-79, il est fait mention en marge de l'inscription de la sûreté soit de la souscription intégrale, soit de la souscription partielle des obligations émises et de la réduction des effets de la sûreté au montant effectivement souscrit, soit de la non-réalisation de l'émission pour défaut ou insuffisance de souscription. Cette dernière mention fait cesser les effets de l'inscription et entraîne sa radiation définitive.
Article R228-82
Le renouvellement de l'inscription prise est effectué aux frais de la société, sous la responsabilité du président du conseil d'administration, du directoire ou des gérants, selon le cas.
Article R228-83
Hors les cas de réduction ou de radiation définitive prévue à l'article R. 228-81, la mainlevée des inscriptions émane des représentants de la masse intéressée.
Les représentants de la masse peuvent donner mainlevée des inscriptions, même sans constatation du remboursement de l'emprunt, s'ils ont été habilités à cet effet par une décision dûment homologuée de l'assemblée générale extraordinaire des obligataires.
Hors le cas prévu à l'alinéa précédent, la mainlevée totale ou partielle des inscriptions ne peut être donnée par les représentants de la masse, qu'au cas de remboursement ou de versement entre leurs mains de l'intégralité du prix d'aliénation des biens à dégrever.
Les représentants de la masse ne sont pas tenus de donner mainlevée partielle des garanties en cas d'amortissement normal par tirage au sort ou rachat des obligations.
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Article R228-84
En cas de sauvegarde, de redressement ou de liquidation judiciaire de la société débitrice, les avis et convocations destinés aux obligataires sont adressés aux représentants de la masse, selon le cas, par le représentant légal de la société ou l'administrateur ou le mandataire judiciaire.
Article R228-85
Le mandataire chargé d'assurer la représentation de la masse dans le cas prévu à l'article L. 228-85 est désigné par le président du tribunal de commerce statuant sur requête.
Il produit la créance de la masse, dans le délai de quinze jours à compter de sa désignation.
Article R228-86
En cas de liquidation judiciaire, les attestations d'inscription en compte des obligations au porteur ou, le cas échéant, les documents matérialisant ces obligations sont déposés entre les mains du liquidateur dans le délai imparti par le juge-commissaire.
Section 6 : Des valeurs mobilières donnant accès au capital ou donnant droit à l'attribution de titres de créances.
Article R228-87
Pour l'application du 1° de l'article L. 228-99, lorsqu'il existe des valeurs mobilières donnant accès au capital, la société qui émet de nouveaux titres de capital avec droit préférentiel de souscription réservé à ses actionnaires, si les droits attachés aux valeurs mobilières donnant accès au capital ne peuvent s'exercer qu'à certaines dates, ouvre une période exceptionnelle pour permettre aux titulaires des droits attachés à des valeurs mobilières donnant accès au capital qui exerceraient ces droits de souscrire des titres nouveaux.
Elle prend, si l'exercice des droits attachés aux valeurs mobilières donnant accès au capital peut être exercé à tout moment, les dispositions nécessaires pour permettre aux titulaires qui exerceraient ces droits de souscrire des titres nouveaux.
Article R228-88
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Pour l'application du 2° de l'article L. 228-99, lorsqu'il existe des valeurs mobilières donnant accès au capital, la société qui procède à l'attribution d'actions gratuites vire à un compte de réserve indisponible la somme nécessaire pour attribuer les actions gratuites aux titulaires des droits attachés aux valeurs mobilières donnant accès au capital qui exerceraient leur droit ultérieurement en nombre égal à celui qu'ils auraient reçu s'ils avaient été actionnaires au moment de l'attribution principale.
Article R228-89
Pour l'application du 2° de l'article L. 228-99, lorsqu'il existe des valeurs mobilières donnant accès au capital, la société qui procède à la distribution de réserves, en espèces ou en nature, ou de primes d'émission, vire à un compte de réserve indisponible la somme et, le cas échéant, conserve les biens en nature nécessaires pour remettre aux titulaires des droits attachés aux valeurs mobilières donnant accès au capital qui exerceraient leur droit ultérieurement la somme ou les biens qu'ils auraient reçus s'ils avaient été actionnaires au moment de la distribution.
Article R228-90
Lorsqu'il existe des valeurs mobilières donnant accès au capital, la société qui procède à l'achat de ses actions admises aux négociations sur un marché réglementé procède, lorsque le prix d'acquisition est supérieur au cours de bourse, à un ajustement du nombre d'actions que ces titres permettent d'obtenir.
Cet ajustement garantit, au centième d'action près, que la valeur des actions qui sont obtenues en cas d'exercice des droits attachés aux valeurs mobilières donnant accès au capital après la réalisation de l'opération est identique à la valeur de celles qui auraient été obtenues en cas d'exercice des droits avant cette opération.
A cet effet, les nouvelles bases d'exercice des droits sont calculées en tenant compte du rapport entre, d'une part, le produit du pourcentage du capital racheté par la différence entre le prix de rachat et une moyenne pondérée des cours des trois dernières séances de bourse au moins qui précèdent le rachat ou la faculté de rachat et, d'autre part, cette moyenne. Les éventuels ajustements successifs sont effectués à partir de la parité qui précède immédiatement, arrondie comme il est dit à l'alinéa précédent.
Le conseil d'administration ou le directoire rend compte des éléments de calcul et des résultats de l'ajustement dans le rapport annuel suivant
Article R228-91
Pour l'application du 3° de l'article L. 228-99, l'ajustement égalise, au centième d'action près, la
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valeur des titres qui sont obtenus en cas d'exercice des droits attachés aux valeurs mobilières donnant accès au capital après la réalisation de l'opération et la valeur des titres qui auraient été obtenus en cas d'exercice de ces droits avant la réalisation de l'opération.
A cet effet, les nouvelles bases d'exercice des droits attachés aux valeurs mobilières donnant accès au capital sont calculées en tenant compte :
1° En cas d'opération comportant un droit préférentiel de souscription et selon les stipulations du contrat d'émission :
a) Soit du rapport entre, d'une part, la valeur du droit préférentiel de souscription et, d'autre part, la valeur de l'action après détachement de ce droit telles qu'elles ressortent de la moyenne des premiers cours cotés pendant toutes les séances de bourse incluses dans la période de souscription ;
b) Soit du nombre de titres émis auxquels donne droit une action ancienne, du prix d'émission de ces titres et de la valeur des actions avant détachement du droit de souscription. Cette valeur est égale à la moyenne pondérée des cours des trois dernières séances de bourse au moins qui précèdent le jour du début de l'émission ;
2° En cas d'attribution d'actions gratuites, du nombre d'actions auquel donne droit une action ancienne ;
3° En cas de distribution de réserves, en espèces ou en nature, ou de primes d'émission, du rapport entre le montant par action de la distribution et la valeur de l'action avant la distribution. Cette valeur est égale à la moyenne pondérée des cours des trois dernières séances de bourse au moins qui précèdent le jour de la distribution ;
4° En cas de modification de la répartition des bénéfices, du rapport entre la réduction par action du droit aux bénéfices et la valeur de l'action avant cette modification. Cette valeur est égale à la moyenne pondérée des cours des trois dernières séances de bourse au moins qui précèdent le jour de la modification ;
5° En cas d'amortissement du capital, du rapport entre le montant par action de l'amortissement et la valeur de l'action avant l'amortissement. Cette valeur est égale à la moyenne pondérée des cours des trois dernières séances de bourse au moins qui précèdent le jour de l'amortissement.
Lorsque les actions de la société ne sont pas admises aux négociations sur un marché réglementé, le contrat d'émission prévoit les modalités d'ajustement, et notamment les modalités de détermination de la valeur de l'action à prendre en compte pour l'application des alinéas ci-dessus.
Le conseil d'administration ou le directoire rend compte des éléments de calcul et des résultats de l'ajustement dans le rapport annuel suivant.
Article R228-92
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Si une société procède à une opération nécessitant l'application de l'article L. 228-99, elle en informe les titulaires des droits attachés aux valeurs mobilières donnant accès au capital intéressées par un avis.
Cet avis mentionne :
1° La dénomination sociale et, le cas échéant, le sigle de la société ;
2° La forme de la société ;
3° Le montant du capital social ;
4° L'adresse du siège social ;
5° Les mentions prévues aux 1° et 2° de l'article R. 123-237 ;
6° La nature de l'opération et, le cas échéant, de la catégorie des titres à émettre, le prix de souscription, la quotité du droit de souscription et les conditions de son exercice, les dates d'ouverture et de clôture de la souscription ;
7° Les dispositions prises par la société en application des articles R. 228-87 à R. 228-91.
Les indications prévues au présent article sont portées à la connaissance des titulaires des droits attachés à ces valeurs mobilières donnant accès au capital, par lettre recommandée avec demande d'avis de réception, quatorze jours au moins avant la date prévue de clôture de la souscription, en cas d'émission de titres, ou dans les quinze jours suivant la décision relative à l'opération envisagée, dans les autres cas.
Si les valeurs mobilières de la société donnant accès au capital sont admises aux négociations sur un marché réglementé ou si toutes ses valeurs mobilières donnant accès au capital ne revêtent pas la forme nominative, l'avis contenant ces indications est inséré, dans le même délai, dans une notice publiée au Bulletin des annonces légales obligatoires.
Article R228-93
Les augmentations de capital rendues nécessaires par l'exercice de droits attachés à des valeurs mobilières donnant accès au capital ne donnent pas lieu à la publicité prévue à l'article R. 225-120. Les bulletins de souscription sont établis selon les modalités de l'article R. 225-128, à l'exception des mentions prévues aux 6° et 7°. Les articles R. 225-129 à R. 225-135 ne sont pas applicables aux augmentations de capital réalisées par exercice de droits attachés à des valeurs mobilières donnant accès au capital.
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La publication prévue à l'article R. 210-9 intervient dans le délai d'un mois.
Article R228-94
Lorsque, conformément à l'article L. 225-149, l'exercice des droits attachés aux valeurs mobilières donnant accès au capital fait apparaître un rompu, celui-ci est versé en espèces. Ce versement est égal au produit de la fraction d'action formant rompu par la valeur de l'action.
Dans les sociétés dont les actions sont admises aux négociations sur un marché réglementé, cette valeur est celle du cours coté lors de la séance de bourse du jour qui précède celui du dépôt de la demande d'exercice des droits.
Dans les autres sociétés, cette valeur est fixée conformément aux stipulations du contrat d'émission, soit sur la base des cours figurant au relevé quotidien des valeurs non admises aux négociations sur un marché réglementé, soit sur la base des capitaux propres de la société.
Le contrat d'émission peut prévoir que le titulaire des droits attachés aux valeurs mobilières donnant accès au capital a le droit de demander la délivrance du nombre entier d'actions à condition de verser à la société la valeur de la fraction d'action supplémentaire demandée, fixée conformément aux règles posées dans les deux alinéas précédents
Article R228-95
Le droit de communication prévu à l'article L. 228-105 s'exerce dans les mêmes conditions que celles prévues par les articles R. 225-92 à R. 225-94.
Article R228-96
Les cours de bourse à retenir pour l'application du présent titre sont les derniers cours cotés.
Chapitre IX : De la société européenne.
Section 1 : Dispositions générales.
Article R229-1
Les sociétés européennes immatriculées en France sont régies par les dispositions du présent
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chapitre et par celles applicables aux sociétés anonymes qui ne leur sont pas contraires.
Article R229-2
Le notaire qui procède aux contrôles prévus au dernier alinéa de l'article L. 229-2 et au deuxième alinéa de l'article L. 229-3 ne peut avoir ni instrumenté, ni rédigé d'actes sous seing privé, ni donné des consultations juridiques à l'occasion de l'opération pour laquelle le contrôle est effectué. Il ne peut davantage exercer dans une société ou dans un office qui aurait instrumenté, rédigé des actes sous seing privé ou donné des consultations juridiques à l'occasion de cette opération.
Section 2 : Du transfert du siège social.
Sous-section 1 : De la publicité et de la protection des droits des tiers.
Article R229-3
Le projet de transfert dans un autre Etat membre de la Communauté européenne du siège social d'une société européenne immatriculée en France, prévu au premier alinéa de l'article L. 229-2, fait l'objet d'un avis inséré dans un journal habilité à recevoir des annonces légales dans le département du siège social ainsi qu'au Bulletin des annonces légales obligatoires lorsque les actions de la société sont admises aux négociations sur un marché réglementé ou lorsque ses actions ne revêtent pas toutes la forme nominative.
Cet avis comporte, outre les mentions prévues pour la modification des statuts, les indications suivantes :
1° La dénomination sociale suivie, le cas échéant, de son sigle, l'adresse du siège social, le montant du capital social ainsi que les mentions prévues aux 1° et 2° de l'article R. 123-237 ;
2° L'Etat dans lequel le transfert est envisagé ainsi que l'adresse prévisible du siège social ;
3° Le calendrier prévisible du transfert ;
4° Les modalités d'exercice des droits relatifs au rachat d'actions et à l'opposition des créanciers ;
5° La date du projet ainsi que la date et le lieu de son dépôt au greffe du tribunal dans le ressort duquel la société est immatriculée.
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Il est procédé à ce dépôt et à la publicité prévue par le présent article au moins deux mois avant la date de la première assemblée générale appelée à statuer sur le transfert.
Article R229-4
Les dispositions de l'article R. 210-11 ne sont pas applicables au transfert du siège d'une société européenne immatriculée en France dans un autre Etat membre de la Communauté européenne.
Article R229-5
La décision de l'assemblée générale extraordinaire prise en application du deuxième alinéa de l'article L. 229-2 fait l'objet d'un avis inséré dans un journal habilité à recevoir des annonces légales dans le département du siège social ainsi qu'au Bulletin des annonces légales obligatoires lorsque les actions de la société sont admises aux négociations sur un marché réglementé ou lorsque ses actions ne revêtent pas toutes la forme nominative.
Cet avis comporte la date de l'assemblée générale extraordinaire et l'adresse du siège social.
Article R229-6
L'opposition des actionnaires et leur demande de rachat, prévues au troisième alinéa de l'article L. 229-2, sont formées dans un délai d'un mois à compter de la dernière en date des publications prescrites par l'article R. 229-5.
Elles sont portées à la connaissance de la société par lettre recommandée avec demande d'avis de réception.
Article R229-7
La société adresse à chacun des actionnaires mentionnés à l'article précédent, dans un délai de quinze jours suivant la réception de sa demande, une offre de rachat par lettre recommandée avec demande d'avis de réception.
Le prix proposé par la société aux actionnaires détenant des actions d'une même catégorie doit être identique.
Cette offre comporte le prix offert par action et le mode de paiement proposé ainsi que le délai pendant lequel l'offre est maintenue et le lieu où elle peut être acceptée.
Le délai mentionné à l'alinéa précédent ne peut être inférieur à vingt jours.
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Lorsque les titres de la société européenne sont admis aux négociations sur un marché réglementé, leur évaluation est faite conformément au II de l'article L. 433-4 du code monétaire et financier.
Article R229-8
Toute contestation sur le prix offert est portée devant le tribunal dans le ressort duquel est situé le siège de la société, dans le délai mentionné au troisième alinéa de l' article R. 229- 7.
Tous les actionnaires intéressés par le rachat des actions sont mis en cause par la société dans les conditions prévues à l' article 331 du code de procédure civile ; ils procèdent alors conformément à l' article 333 de ce code.
Le prix est fixé selon les modalités prévues aux articles 1843- 4 du code civil et 17 du décret n° 78- 704 du 3 juillet 1978 relatif à l' application de la loi n° 78- 9 du 4 janvier 1978 modifiant le titre IX du livre III du code civil.
Article R229-9
L'offre d'acquisition des certificats d'investissement, prévue au quatrième alinéa de l'article L. 229-2, fait l'objet d'un avis inséré dans un journal habilité à recevoir des annonces légales dans le département du siège social ainsi qu'au Bulletin des annonces légales obligatoires lorsque les actions de la société sont admises aux négociations sur un marché réglementé ou lorsque ses actions ne revêtent pas toutes la forme nominative.
Cet avis comporte :
1° La dénomination sociale et la forme de la société, l'adresse du siège social et le montant du capital social ;
2° Le nombre de certificats d'investissement dont l'acquisition est envisagée ;
3° Le prix offert par certificat d'investissement et accepté par l'assemblée spéciale des porteurs de certificats d'investissement ;
4° Le délai pendant lequel l'offre d'acquisition est maintenue ainsi que le lieu où elle peut être acceptée. Ce délai ne peut être inférieur à vingt jours.
La publicité prévue au premier alinéa est remplacée pour les porteurs de certificats d'investissement nominatifs par l'envoi à chacun d'eux d'une lettre recommandée avec demande d'avis de réception, aux frais de la société. Cette lettre comporte les mêmes mentions que celles de l'avis.
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Le délai dans lequel les porteurs de certificats d'investissement peuvent céder leurs titres est de trente jours à compter de la dernière en date des formalités de publicité.
Article R229-10
L'offre de remboursement des obligataires, prévue au cinquième alinéa de l'article L. 229-2, fait l'objet d'un avis donnant lieu à deux insertions successives, espacées d'au moins dix jours, dans deux journaux d'annonces légales du département du siège social ainsi qu'au Bulletin des annonces légales obligatoires lorsque les obligations de la société sont admises aux négociations sur un marché réglementé ou lorsque ses obligationsne revêtent pas toutes la forme nominative.
La publicité prévue à l'alinéa précédent est remplacée, pour les titulaires d'obligations nominatives, par l'envoi à chacun d'eux d'une lettre recommandée avec demande d'avis de réception, aux frais de la société.
Le délai dans lequel les obligataires peuvent demander le remboursement de leurs titres est de trois mois à compter, selon le cas, de la dernière en date des formalités de publicité ou de la réception de la dernière lettre recommandée.
Ce délai est indiqué dans l'avis et dans la lettre mentionnés aux premier et deuxième alinéas.
Article R229-11
L'opposition d'un créancier non obligataire, prévue au sixième alinéa de l'article L. 229-2, est formée dans un délai de trente jours à compter de la dernière en date des publications de l'insertion mentionnée à l'article R. 229-3.
Sous-section 2 : Du contrôle de légalité du transfert de siège social.
Article R229-12
Aux fins de délivrance du certificat mentionné au septième alinéa de l'article L. 229-2, la société européenne produit au notaire chargé d'effectuer le contrôle de légalité un dossier contenant au moins les éléments suivants :
1° Les statuts de la société ;
2° Le projet de transfert du siège social ;
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3° Une copie des avis relatifs aux publicités prévues par la présente section ;
4° Une copie du procès-verbal des assemblées mentionnées au quatrième alinéa de l'article L. 229-2 ;
5° Des indications relatives aux conséquences du transfert sur l'implication des travailleurs au sens des articles L. 439-25 à L. 439-50 du code du travail.
Section 3 : De la constitution de la société européenne.
Sous-section 1 : De la constitution par fusion.
Article D229-13
Le greffier dispose d'un délai de huit jours à compter du dépôt de la déclaration de conformité pour délivrer l'attestation de conformité des actes et formalités préalables à la fusion prévue à l'article L. 229-3.
Article D229-13-1
Aux fins d'immatriculation de la société européenne constituée par voie de fusion, chaque société qui participe à l'opération remet au notaire ou au greffier du tribunal dans le ressort duquel la société issue de la fusion sera immatriculée, qui a été chargé du contrôle de la légalité, outre le certificat mentionné au troisième alinéa de l'article L. 229-3 datant de moins de six mois, un dossier contenant au moins les documents suivants :
1° Les statuts de la société européenne ;
2° Le projet commun de fusion ;
3° Une copie des avis relatifs aux publicités prévues par le présent livre ;
4° Une copie du procès-verbal des assemblées mentionnées aux articles L. 236-9 et L. 236-13 ;
5° Un document attestant que les sociétés qui fusionnent ont approuvé le projet de fusion dans les mêmes termes et qu'ont été fixées les modalités relatives à l'implication des travailleurs conformément aux articles L. 2351-1 à L. 2354-4 du code du travail.
Article D229-13-2
Le contrôle de légalité mentionné à l'article L. 229-3 est accompli dans un délai de quinze jours à
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compter de la réception de l'ensemble des documents mentionnés à l'article D. 229-13-1.
Article R229-14
La dissolution de la société européenne pour l'un des motifs mentionnés au sixième alinéa de l'article L. 229-3 peut être demandée en justice par tout intéressé.
La publicité de la décision judiciaire qui prononce la dissolution de la société européenne est faite par insertion au Bulletin officiel des annonces civiles et commerciales et dans un journal habilité à recevoir des annonces légales dans le département du siège social ainsi qu'au Bulletin des annonces légales obligatoires lorsque les actions de la société sont admises aux négociations sur un marché réglementé ou lorsque ses actions ne revêtent pas toutes la forme nominative.
Sous-section 2 : De la constitution d'une société européenne holding.
Article R229-15
Le projet de constitution d'une société européenne holding fait l'objet, par chaque société immatriculée en France qui participe à l'opération, d'un avis inséré dans un journal habilité à recevoir des annonces légales dans le département du siège social ainsi qu'au Bulletin des annonces légales obligatoires lorsque les actions de l'une au moins de ces sociétés sont admises aux négociations sur un marché réglementé ou lorsque les actions de l'une au moins de ces sociétés ne revêtent pas toutes la forme nominative.
Cet avis comporte les indications suivantes :
1° La dénomination de la société promotrice suivie, le cas échéant, de son sigle, l'adresse de son siège social, le montant de son capital social, les mentions prévues aux 1° et 2° de l'article R. 123-237 et, le cas échéant, son numéro d'immatriculation dans l'Etat où elle a son siège ;
2° La dénomination sociale suivie, le cas échéant, de son sigle, l'adresse du siège social et le montant du capital envisagés de la société européenne holding ;
3° La mention du pourcentage minimal des actions ou parts de chacune des sociétés promouvant l'opération que les actionnaires ou porteurs devront apporter pour que la société soit constituée ;
4° Le rapport d'échange de parts sociales ou d'actions et, le cas échéant, le montant de la soulte due ;
5° La date du projet ainsi que la date et le lieu de son dépôt au greffe du tribunal dans le ressort duquel chaque société promotrice est immatriculée.
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Il est procédé à ce dépôt et à la publicité prévue au premier alinéa un mois au moins avant la date de la première assemblée appelée à statuer sur l'opération.
Article R229-16
Les commissaires à la constitution de la société européenne holding sont désignés et accomplissent leur mission dans les conditions prévues par l'article R. 225-7.
Article R229-17
Outre les mentions du paragraphe 5 de l'article 32 du règlement (CE) n° 2157/2001 du Conseil du 8 octobre 2001 relatif au statut de la société européenne, les commissaires à la constitution précisent, dans le rapport mentionné au troisième alinéa de l'article L. 229-5, la date à laquelle ont été arrêtés les comptes qui ont servi à l'évaluation des parts ou actions concourant à la formation de la société européenne holding.
Article R229-18
La décision de l'assemblée générale de chaque société immatriculée en France qui participe à la constitution de la société européenne holding fait l'objet d'un avis inséré, par chacune d'entre elles, dans un journal habilité à recevoir des annonces légales dans le département de leur siège respectif ainsi qu'au Bulletin des annonces légales obligatoires lorsque les actions de la société sont admises aux négociations sur un marché réglementé ou lorsque ses actions ne revêtent pas toutes la forme nominative.
Cet avis comporte les indications suivantes :
1° La date de l'assemblée générale extraordinaire ;
2° L'adresse du siège social ;
3° Les modalités suivant lesquelles les actionnaires et porteurs de parts communiquent aux sociétés promotrices leur intention d'apporter leurs actions ou parts en vue de la constitution de la société européenne et le délai de trois mois qui leur est conféré à compter de la publication de l'avis pour y procéder.
Article R229-19
Lorsque les conditions de constitution de la société européenne holding sont réunies, chaque société
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immatriculée en France qui participe à l'opération fait insérer un avis le constatant dans un journal habilité à recevoir des annonces légales au niveau national ainsi qu'au Bulletin officiel des annonces civiles et commerciales.
Cet avis comporte, pour la société promotrice, les indications suivantes :
1° La date du projet et de sa publication ;
2° La date de l'assemblée générale ayant approuvé le projet de constitution ;
3° La date à laquelle les actionnaires ou associés ont apporté le pourcentage de parts ou d'actions en vue de la constitution de la société européenne.
Sous-section 3 : De la constitution par transformation d'une société anonyme.
Article R229-20
Le projet de transformation de la société anonyme, prévu au deuxième alinéa de l'article L. 225-245-1, fait l'objet d'un avis inséré dans un journal habilité à recevoir des annonces légales dans le département du siège social ainsi qu'au Bulletin des annonces légales obligatoires lorsque les actions de la société sont admises aux négociations sur un marché réglementé ou lorsque ses actions ne revêtent pas toutes la forme nominative.
Cet avis comporte les indications suivantes :
1° La dénomination sociale suivie, le cas échéant, de son sigle, l'adresse du siège social, le montant du capital social et les mentions prévues aux 1° et 2° de l'article R. 123-237 ;
2° La mention que la société anonyme envisage de se transformer en société européenne ;
3° La date du projet ainsi que la date et le lieu de son dépôt au greffe du tribunal dans le ressort duquel la société est immatriculée.
Il est procédé à ce dépôt et à la publicité prévue au premier alinéa un mois au moins avant la date de la première assemblée appelée à statuer sur l'opération.
Article R229-21
Les commissaires à la transformation sont désignés et accomplissent leur mission dans les conditions prévues par l'article R. 225-7.
Article R229-22
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La transformation d'une société anonyme en société européenne immatriculée en France est publiée dans les conditions prévues par l'article R. 225-165.
Section 4 : De l'administration de la société européenne.
Article R229-23
Le membre du conseil de surveillance, qui assure, en application du deuxième alinéa de l'article L. 229-7, les fonctions de membre du directoire en cas de vacance au sein de celui-ci, est nommé pour le temps restant à courir jusqu'au renouvellement du directoire, sans que ce délai puisse excéder six mois.
Section 5 : De la transformation de la société européenne en société anonyme.
Article R229-24
Le projet de transformation de la société européenne, prévu au deuxième alinéa de l'article L. 229-10, fait l'objet d'un avis inséré dans un journal habilité à recevoir des annonces légales dans le département du siège social ainsi qu'au Bulletin des annonces légales obligatoires lorsque les actions de la société sont admises aux négociations sur un marché réglementé ou lorsque ses actions ne revêtent pas toutes la forme nominative.
Cet avis comporte les indications suivantes :
1° La dénomination sociale suivie, le cas échéant, de son sigle, l'adresse du siège social, le montant du capital social et les mentions prévues aux 1° et 2° de l'article R. 123-237 ;
2° La mention que la société européenne envisage de se transformer en société anonyme ;
3° La date du projet ainsi que la date et le lieu de son dépôt au greffe du tribunal dans le ressort duquel la société est immatriculée.
Il est procédé à ce dépôt et à la publicité prévue au premier alinéa un mois au moins avant la date de la première assemblée appelée à statuer sur l'opération.
Article R229-25
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Les commissaires à la transformation sont désignés et accomplissent leur mission dans les conditions prévues par l'article R. 225-7.
Article R229-26
La transformation d'une société européenne immatriculée en France en société anonyme est publiée dans les conditions prévues à l'article R. 225-165.
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Partie réglementaire
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique.
TITRE III : Dispositions communes aux diverses sociétés commerciales.
Chapitre Ier : Du capital variable.
Chapitre II : Des comptes sociaux.
Section 1 : Des documents comptables.
Article R232-1
Les comptes annuels, le rapport de gestion ainsi que, le cas échéant, les comptes consolidés et le rapport sur la gestion du groupe sont tenus, au siège social, à la disposition des commissaires aux comptes un mois au moins avant la convocation de l'assemblée des associés ou des actionnaires appelés à statuer sur les comptes annuels de la société.
Les documents mentionnés à l'alinéa précédent sont délivrés, en copie, aux commissaires aux comptes qui en font la demande.
Article R232-2
Les sociétés commerciales qui, à la clôture d'un exercice social, comptent trois cents salariés ou plus ou dont le montant net du chiffre d'affaires, à la même époque, est égal ou supérieur à 18 000 000 euros, sont tenues d'établir les documents mentionnés à l'article L. 232-2.
Elles cessent d'être assujetties à cette obligation lorsqu'elles ne remplissent aucune de ces conditions pendant deux exercices successifs.
Les salariés pris en compte sont ceux qui, par un contrat de travail à durée indéterminée, sont liés à la société et aux sociétés dont cette dernière détient directement ou indirectement plus de la moitié
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du capital. Le nombre de salariés est égal à la moyenne arithmétique des effectifs à la fin de chaque trimestre de l'année civile ou de l'exercice comptable lorsque celui-ci ne coïncide pas avec l'année civile.
Le montant net du chiffre d'affaires est égal au montant des ventes de produits et services liés à l'activité courante diminué des réductions sur ventes, de la taxe sur la valeur ajoutée et des taxes assimilées.
Article R232-3
Le conseil d'administration, le directoire ou les gérants des sociétés mentionnées à l'article R. 232-2, selon le cas, établissent :
1° Semestriellement, dans les quatre mois qui suivent la clôture de chacun des semestres de l'exercice, la situation de l'actif réalisable et disponible, valeurs d'exploitation exclues, et du passif exigible ;
2° Annuellement :
a) Le tableau de financement en même temps que les comptes annuels dans les quatre mois qui suivent la clôture de l'exercice écoulé ;
b) Le plan de financement prévisionnel ;
c) Le compte de résultat prévisionnel.
Le plan de financement et le compte de résultat prévisionnels sont établis au plus tard à l'expiration du quatrième mois qui suit l'ouverture de l'exercice en cours ; le compte de résultat prévisionnel est, en outre, révisé dans les quatre mois qui suivent l'ouverture du second semestre de l'exercice.
Article R232-4
Les rapports prévus aux articles L. 232-3 et L. 232-4 sont joints aux documents mentionnés à l'article R. 232-3.
Ces rapports complètent et commentent l'information donnée par ces documents. Ils décrivent les conventions comptables, les méthodes utilisées et les hypothèses retenues et en justifient la pertinence et la cohérence.
Article R232-5
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Les règles de présentation et les méthodes utilisées pour l'élaboration des documents mentionnés à l'article R. 232-3 ne peuvent être modifiées d'une période à l'autre sans qu'il en soit justifié dans les rapports mentionnés à l'article R. 232-4. Ces derniers décrivent l'incidence de ces modifications.
Les postes du tableau de financement, du plan de financement prévisionnel et du compte de résultat prévisionnel comportent l'indication du chiffre relatif au poste correspondant de l'exercice précédent.
Les postes de la situation de l'actif réalisable et disponible, valeurs d'exploitation exclues, et du passif exigible comportent l'indication des chiffres relatifs aux postes correspondants des deux semestres précédents.
Les documents mentionnés à l'article R. 232-3 font apparaître, chacun en ce qui le concerne, la situation de trésorerie de la société, ses résultats prévisionnels ainsi que ses moyens et prévisions de financement. S'il y a lieu, des informations complémentaires sont fournies en vue de permettre le rapprochement des données qu'ils contiennent de celles des comptes annuels.
Le compte de résultat prévisionnel peut comporter une ou plusieurs variantes lorsque des circonstances particulières le justifient.
Article R232-6
Dans les huit jours de leur établissement, les documents et rapports mentionnés aux articles R. 232-3 et R. 232-4 sont communiqués au commissaire aux comptes, au comité d'entreprise et au conseil de surveillance.
Article R232-7
Lorsqu'en application des articles L. 232-3 et L. 232-4, le commissaire aux comptes formule des observations, il les consigne dans un rapport écrit adressé au conseil d'administration, au directoire ou aux gérants ainsi qu'au comité d'entreprise dans le mois qui suit l'expiration des délais prévus à l'article R. 232-3.
Lorsqu'en application de l'article L. 232-4, le commissaire aux comptes demande que son rapport soit communiqué aux associés, les gérants procèdent à cette communication dans le délai de huit jours à compter de la réception du rapport.
Article R232-8
Une société consolidante au sens du premier alinéa de l'article L. 232-5 effectue, lorsqu'elle exerce l'option prévue à cet article, les retraitements conformes aux règles de la consolidation sur les éléments des comptes des sociétés qu'elle contrôle directement ou indirectement.
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Ces retraitements peuvent être effectués, pour l'application du troisième alinéa de l'article L. 232-5, sous la responsabilité de la société consolidante par les sociétés contrôlées.
Pour l'application de cette méthode, la société inscrit distinctement, à l'actif du bilan, la somme des quote-parts des capitaux propres avant répartition du résultat, qu'elles soient positives ou négatives, et du montant net de l'écart non affecté de première consolidation.
La différence entre cette somme et le prix d'acquisition des titres est portée dans les capitaux propres à un poste d'écart d'équivalence.
Lors de la première application de cette méthode d'évaluation, les provisions portées en déduction des valeurs des titres sont transférées au poste d'écart d'équivalence.
Si l'écart d'équivalence devient négatif, une dépréciation globale du portefeuille est dotée par le débit du compte de résultat.
Section 2 : Dispositions particulières aux sociétés dont les actions sont admises à la négociation sur un marché réglementé et à certaines de leurs filiales.
Article R232-11
Les sociétés dont les actions sont admises, en tout ou partie, aux négociations sur un marché réglementé publient au Bulletin des annonces légales obligatoires dans les quarante-cinq jours qui suivent l'approbation des comptes par l'assemblée générale ordinaire des actionnaires les documents suivants :
1° Les comptes annuels approuvés, revêtus de l'attestation des commissaires aux comptes ;
2° La décision d'affectation des résultats ;
3° Les comptes consolidés revêtus de l'attestation des commissaires aux comptes. Les informations prévues aux 5°,6°,7° et 8° de l'article R. 233-14 peuvent être omises si elles figurent dans les comptes consolidés déposés au greffe du tribunal à la clôture de l'exercice.
Lorsque la publicité des comptes consolidés, effectuée soit en application des dispositions du I de l'article L. 451-1-2 du code monétaire et financier, soit en application du présent article, n'inclut pas les 5°,6°,7° et 8° de l'article R. 233-14, il est fait mention du dépôt au greffe du tribunal des comptes consolidés comprenant ces informations.
Les sociétés intéressées sont dispensées de la publication des documents mentionnés à l'alinéa précédent si les projets correspondants ont été approuvés sans modification par l'assemblée générale ordinaire des actionnaires, et si elles font insérer dans le même délai au Bulletin des annonces légales obligatoires un avis mentionnant la référence de la publication effectuée en application des dispositions du I de l'article L. 451-1-2 du code monétaire et financier et contenant l'attestation des
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commissaires aux comptes.
Article R232-13
Dans les quatre mois qui suivent la fin du premier semestre de leur exercice, les sociétés dont les actions sont admises, en tout ou partie, aux négociations sur un marché réglementé, annexent et déposent auprès de l'Autorité des marchés financiers le rapport semestriel prévu au troisième alinéa de l'article L. 232-7. Ce rapport contient les mêmes informations que celles prévues au III de l'article L. 451-1-2 du code monétaire et financier.
Section 3 : Des bénéfices.
Article R232-17
Dans le cas prévu au deuxième alinéa de l'article L. 232-12, le conseil d'administration, le directoire ou les gérants, selon le cas, ont qualité pour décider de répartir un acompte à valoir sur le dividende et pour fixer le montant et la date de la répartition.
Article R232-18
Le délai de neuf mois à compter de la clôture de l'exercice, prévu à l'article L. 232-13, peut être prolongé par ordonnance du président du tribunal de commerce statuant sur requête, à la demande des gérants, du conseil d'administration ou du directoire, selon le cas.
Section 4 : De la publicité des comptes.
Article R232-19
Dès le dépôt prévu à l'article L. 232-21, le greffier du tribunal de commerce fait insérer au Bulletin officiel des annonces civiles et commerciales un avis ainsi rédigé :
" La SNC ..... ayant son siège à ...., dont le numéro unique d'identification est ...., a déposé au greffe du tribunal de commerce de ...., où elle est immatriculée au registre du commerce et des sociétés, les comptes annuels (les comptes consolidés) et les rapports de l'exercice clos le .... en application des dispositions de l'article L. 232-21. "
Article R232-20
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Dès le dépôt prévu à l'article L. 232-22, le greffier du tribunal de commerce fait insérer au Bulletin officiel des annonces civiles et commerciales un avis ainsi rédigé :
" La SARL ... ayant son siège à ..., dont le numéro unique d'identification est ...., a déposé au greffe du tribunal de commerce de ..., où elle est immatriculée au registre du commerce et des sociétés, les comptes annuels (les comptes consolidés) et les rapports de l'exercice clos le ... en application des dispositions de l'article L. 232-22. "
Article R232-21
Dès le dépôt prévu à l'article L. 232-23 et à l'article R. 232-15, le greffier du tribunal de commerce, fait insérer au Bulletin officiel des annonces civiles et commerciales un avis ainsi rédigé :
" La SA (ou la SCA ou la SAS ou la SE) .... ayant son siège social à ..., dont le numéro unique d'identification est ...., a déposé au greffe du tribunal de commerce de ..., où elle est immatriculée au registre du commerce et des sociétés, les comptes annuels (les comptes consolidés) (l'inventaire des valeurs mobilières détenues en portefeuille) et les rapports de l'exercice clos le... en application des dispositions des articles L. 232-23 et R. 232-15. "
Chapitre III : Des filiales, des participations et des sociétés contrôlées.
Section 1 : Des notifications et des informations.
Article R233-1
Pour l'application du I de l'article L. 233-7, l'information est adressée à la société au plus tard avant la clôture des négociations du quatrième jour de bourse suivant le jour du franchissement du seuil de participation.
Article R233-1-1
Pour l'application du VII de l'article L. 233-7, l'information est adressée à la société et doit parvenir à l'Autorité des marchés financiers au plus tard avant la clôture des négociations du cinquième jour de bourse suivant le jour du franchissement du seuil de participation donnant lieu à l'application de cet article.
Article R233-2
L'information des actionnaires prévue au I de l'article L. 233-8 prend la forme d'un avis publié dans
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un journal habilité à recevoir les annonces légales dans le département où la société a son siège avant l'expiration d'un délai de quinze jours à compter de la date de l'assemblée générale ordinaire annuelle ou de la date à laquelle la société a eu connaissance, entre deux assemblées générales, d'une variation du nombre total des droits de vote au moins égale au pourcentage fixé par l'arrêté ministériel mentionné au I du même article.
Section 2 : Des comptes consolidés.
Article R233-3
L'établissement des comptes consolidés prévu par le présent livre s'effectue par intégration globale, par intégration proportionnelle ou par mise en équivalence.
Dans l'intégration globale, le bilan consolidé reprend les éléments du patrimoine de la société consolidante, à l'exception des titres des sociétés consolidées à la valeur comptable desquels est substitué l'ensemble des éléments actifs et passifs constitutifs des capitaux propres de ces sociétés déterminés d'après les règles de consolidation.
Dans l'intégration proportionnelle est substituée à la valeur comptable de ces titres la fraction représentative des intérêts de la société ou des sociétés détentrices dans les éléments actifs et passifs constitutifs des capitaux propres de ces sociétés déterminés d'après les règles de consolidation.
Dans la mise en équivalence est substituée à la valeur comptable de ces titres la part des capitaux propres de ces sociétés déterminés d'après les règles de consolidation.
Article R233-4
Le compte de résultat consolidé reprend :
1° Les éléments constitutifs :
a) Du résultat de la société consolidante ;
b) Du résultat des sociétés consolidées par intégration globale ;
c) De la fraction du résultat des sociétés consolidées par intégration proportionnelle représentative des intérêts de la société ou des sociétés détentrices ;
2° La fraction du résultat des sociétés consolidées par mise en équivalence, représentative soit des intérêts directs ou indirects de la société consolidante, soit des intérêts de la société ou des sociétés
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détentrices.
Article R233-5
L'écart de première consolidation d'une société est réparti dans les postes appropriés du bilan consolidé ; la partie non affectée de cet écart est inscrite à un poste particulier d'actif ou de passif du bilan consolidé.
L'écart non affecté est rapporté au compte de résultat, conformément à un plan d'amortissement, ou de reprise de provisions.
Dans des cas exceptionnels dûment justifiés à l'annexe, l'écart de première consolidation non affecté d'une entreprise peut être inscrit dans les capitaux propres ou imputé sur ceux-ci.
Article R233-6
Les titres représentatifs du capital de la société consolidante détenus par les sociétés consolidées sont classés selon la destination qui leur est donnée dans ces sociétés.
Les titres immobilisés sont portés distinctement en diminution des capitaux propres consolidés.
Les titres de placement sont maintenus dans l'actif consolidé.
Article R233-7
Le chiffre d'affaires consolidé est égal au montant des ventes de produits et services liés aux activités courantes de l'ensemble constitué par les sociétés consolidées par intégration. Il comprend, après élimination des opérations internes :
1° Le montant net, après retraitements éventuels, du chiffre d'affaires réalisé par les sociétés consolidées par intégration globale ;
2° La quote-part de la société ou des sociétés détentrices dans le montant net, après retraitements éventuels, du chiffre d'affaires réalisé par les sociétés consolidées par intégration proportionnelle.
Article R233-8
La consolidation impose :
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1° Le classement des éléments d'actif et de passif ainsi que des éléments de charge et de produit des entreprises consolidées par intégration selon le plan de classement retenu pour la consolidation ;
2° L'évaluation au moyen des retraitements nécessaires des éléments d'actif et de passif ainsi que des éléments de charge et de produit des entreprises consolidées selon les méthodes d'évaluation retenues pour la consolidation ;
3° L'élimination de l'incidence sur les comptes des écritures passées pour la seule application des législations fiscales et notamment pour ce qui concerne les subventions d'investissement, les provisions réglementées et l'amortissement des immobilisations ;
4° L'élimination des résultats internes à l'ensemble consolidé, y compris les dividendes ;
5° La constatation de charges lorsque les impositions afférentes à certaines distributions prévues entre des entreprises consolidées par intégration ne sont pas récupérables ainsi que la prise en compte de réductions d'impôt lorsque des distributions prévues en font bénéficier des entreprises consolidées par intégration ;
6° L'élimination des comptes réciproques des entreprises consolidées par intégration.
Toutefois, par dérogation au 6° ci-dessus et sous réserve d'en justifier dans l'annexe, un actif immobilisé peut-être maintenu à la nouvelle valeur résultant d'une opération entre les sociétés consolidées par intégration lorsque cette opération a été conclue conformément aux conditions normales du marché et que l'élimination du supplément de valeur d'actif entraînerait des frais disproportionnés ; dans ce cas, l'écart qui en résulte est inscrit directement dans les réserves.
La société consolidante peut omettre d'effectuer certaines des opérations décrites au présent article, lorsqu'elles sont d'incidence négligeable sur le patrimoine, la situation financière et le résultat de l'ensemble constitué par les entreprises comprises dans la consolidation.
Article R233-9
L'écart constaté d'un exercice à l'autre et qui résulte de la conversion en euros des comptes d'entreprises libellés dans une autre monnaie est inscrit distinctement soit dans les capitaux propres consolidés, soit au compte de résultat consolidé, selon la méthode de conversion retenue.
Article R233-10
L'établissement des comptes consolidés peut s'effectuer en utilisant, outre les méthodes d'évaluation prévues aux articles L. 123-18 à L. 123-21, les méthodes d'évaluation suivantes :
1° Les comptes consolidés peuvent être établis sur la base de l'euro avec son pouvoir d'achat à la
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clôture de l'exercice ; tous les éléments initialement libellés soit dans une autre monnaie, soit en euros de pouvoir d'achat différent, sont convertis dans l'unité commune ; les incidences de cette méthode d'évaluation sur les actifs, sur les passifs et sur les capitaux propres apparaissent distinctement dans les capitaux propres consolidés ;
2° Les immobilisations corporelles amortissables et les stocks peuvent être inscrits à leur valeur de remplacement à la clôture de l'exercice ; les contreparties de ces retraitements sont isolées dans des postes appropriés ;
3° Les éléments fongibles de l'actif circulant peuvent être évalués en considérant que, pour chaque catégorie, le premier bien sorti est le dernier bien entré ; l'application de cette méthode d'évaluation peut être limitée à certaines branches d'activité ou à certaines zones géographiques ; les modalités de regroupement de ces éléments en catégories sont indiquées et justifiées dans l'annexe ;
4° Les intérêts des capitaux empruntés pour financer la fabrication d'un élément de l'actif circulant peuvent être inclus dans son coût lorsqu'ils concernent la période de fabrication ;
5° Les biens dont les entreprises consolidées ont la disposition par contrat de crédit-bail ou selon des modalités analogues peuvent être traités au bilan et au compte de résultat consolidés comme s'ils avaient été acquis à crédit ;
6° Les biens mis, par les entreprises consolidées, à la disposition de clients par contrat de crédit-bail ou selon des modalités analogues peuvent être traités comme s'ils avaient été vendus à crédit, si la réalisation de la vente future peut être considérée comme raisonnablement assurée ;
7° Les écarts d'actif ou de passif provenant de la conversion, dans la monnaie d'établissement des comptes annuels d'une entreprise consolidée, de dettes et de créances libellées dans une autre monnaie peuvent être inscrits au compte de résultat consolidé ;
8° Lorsque des capitaux sont reçus en application de contrats d'émission ne prévoyant ni de remboursement à l'initiative du prêteur, ni de rémunération obligatoire en cas d'absence ou d'insuffisance de bénéfice, ceux-ci peuvent être inscrits au bilan consolidé à un poste de capitaux propres ;
9° Les biens détenus par des organismes qui sont soumis à des règles d'évaluation fixées par des lois particulières peuvent être maintenus dans les comptes consolidés à la valeur qui résulte de l'application de ces règles.
Article R233-11
Le bilan consolidé est présenté soit sous forme de tableau, soit sous forme de liste. Il fait au moins apparaître de façon distincte :
1° Les immobilisations incorporelles, les immobilisations corporelles, les immobilisations financières, les stocks, les créances, les valeurs mobilières de placement et les disponibilités ;
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2° Les capitaux propres, les provisions et les dettes ;
3° La part des actionnaires ou associés minoritaires.
Article R233-12
Le compte de résultat consolidé fait au moins apparaître le montant net du chiffre d'affaires consolidé, le résultat après impôts de l'ensemble des entreprises consolidées par intégration, la quote-part des résultats des entreprises consolidées par mise en équivalence. La part des actionnaires ou associés minoritaires et la part de l'entreprise consolidante apparaissent distinctement.
Les produits et les charges sont classés selon leur nature ou leur destination. Ils sont présentés soit sous forme de tableau, soit sous forme de liste.
Article R233-13
Sont enregistrées au bilan et au compte de résultat consolidés les impositions différées résultant :
1° Du décalage temporaire entre la constatation comptable d'un produit ou d'une charge et son inclusion dans le résultat fiscal d'un exercice ultérieur ;
2° Des aménagements et éliminations imposés à l'article R. 233-8, des retraitements prévus au c de cet article et notamment de ceux induits par l'utilisation des règles d'évaluation de l'article R. 233-10 ;
3° De déficits fiscaux reportables des entreprises comprises dans la consolidation dans la mesure où leur imputation sur des bénéfices fiscaux futurs est probable.
Article R233-14
Outre les informations prévues par les articles L. 233-19, L. 233-23, L. 233-25 et par les articles R. 233-5, R. 233-8 et R. 233-10, l'annexe comporte toutes les informations d'importance significative permettant aux lecteurs d'avoir une juste appréciation du patrimoine, de la situation financière et du résultat de l'ensemble constitué par les entreprises comprises dans la consolidation. Ces informations portent sur les points suivants :
1° Les principes comptables et les méthodes d'évaluation appliqués aux divers postes du bilan et du compte de résultat consolidés, en précisant celles de ces méthodes qui ont été retenues en application de l'article R. 233-10 ;
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2° Les principes et les modalités de consolidation retenues ;
3° Les méthodes de conversion utilisées pour la consolidation d'entreprises étrangères ;
4° Les circonstances qui empêchent de comparer, d'un exercice à l'autre, certains postes du bilan et du compte de résultat consolidés ainsi que, le cas échéant, les moyens qui permettent d'en assurer la comparaison, en précisant les effets des variations du périmètre de consolidation ;
5° Le nom, le siège et, pour les entreprises françaises, le numéro unique d'identification des entreprises consolidées par intégration globale ainsi que la fraction du capital détenue directement ou indirectement ;
6° Le nom, le siège et, pour les entreprises françaises, le numéro unique d'identification des entreprises consolidées par mise en équivalence ainsi que la fraction du capital détenue directement ou indirectement ;
7° Le nom, le siège et, pour les entreprises françaises, le numéro unique d'identification des entreprises consolidées par intégration proportionnelle ainsi que la fraction de capital détenue directement ou indirectement ;
8° La liste des principales entreprises composant le poste " titres de participations " au bilan consolidé, en précisant leur nom et leur siège, la fraction de leur capital détenue directement ou indirectement, le montant de leurs capitaux propres, celui du résultat du dernier exercice ainsi que la valeur nette comptable des titres concernés ;
9° Le montant global de celles des dettes figurant au bilan consolidé dont la durée résiduelle est supérieure à cinq ans et celui des dettes couvertes par des sûretés réelles données par des entreprises comprises dans la consolidation, avec l'indication de leur nature et de leur forme ;
10° Le montant global des engagements financiers qui ne figurent pas au bilan consolidé, pris envers les tiers par l'ensemble des entreprises consolidées par intégration, le montant des engagements en matière de pensions et indemnités assimilées d'une part, le montant des engagements financiers à l'égard des entreprises liées au sens du 9° de l'article R. 123-196 mais non consolidées par intégration d'autre part, sont mentionnés distinctement ;
11° Le montant des rémunérations allouées au titre de l'exercice aux membres des organes d'administration, de direction et de surveillance de la société consolidante, à raison de leurs fonctions dans les entreprises contrôlées au sens de l'article L. 233-16. Ces informations sont données de façon globale pour les membres de chacun de ces organes ; il en est de même du montant des engagements en matière de pensions et indemnités assimilées dont bénéficient les anciens membres de ces organes ;
12° Le montant des avances et des crédits accordés aux membres des organes d'administration, de direction et de surveillance de la société consolidante par cette société et par les entreprises placées sous son contrôle avec l'indication des conditions consenties ; ce montant est indiqué de façon globale pour les membres de chacun de ces organes ;
13° La ventilation du chiffre d'affaires consolidé par secteurs d'activité et par zones géographiques ;
14° L'effectif moyen employé, au cours de l'exercice, dans les entreprises consolidées par intégration ainsi que les charges de personnel correspondantes si elles n'apparaissent pas distinctement au compte de résultat consolidé ; il est procédé à la ventilation par catégories de cet effectif ;
15° Les montants d'impositions différés et la variation de ces montants au cours de l'exercice si ces
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informations n'apparaissent pas distinctement au bilan et au compte de résultat consolidés ;
16° Le montant net des éléments du compte de résultat qui présentent un caractère exceptionnel pour l'ensemble consolidé s'ils n'apparaissent pas distinctement au compte de résultat consolidé ;
17° Le montant total des honoraires des commissaires aux comptes figurant au compte de résultat consolidé de l'exercice, en séparant les honoraires facturés au titre du contrôle légal des comptes consolidés de ceux facturés au titre des conseils et prestations de services entrant dans les diligences directement liées à la mission de contrôle légal des comptes consolidés, telles qu'elles sont définies par les normes d'exercice professionnel mentionnées au II de l'article L. 822-11 ;
18° La nature, l'objectif commercial et l'impact financier des opérations non inscrites au bilan consolidé à condition, d'une part, que les risques ou les avantages en résultant soient significatifs et, d'autre part, que les informations concernant ces risques ou avantages soient nécessaires à l'appréciation de la situation financière des sociétés ou entités incluses dans le périmètre consolidé. Un règlement du Comité de la réglementation comptable précise les modalités d'application du présent alinéa ;
19° La liste des transactions effectuées avec des parties liées, au sens de l'article R. 123-199-1, par la société consolidante, une société ou une entité incluse dans le périmètre de consolidation. Cette liste est établie pour les transactions qui ne sont pas internes au groupe consolidé, qui présentent une importance significative et n'ont pas été conclues aux conditions normales du marché. Les modalités d'élaboration de cette liste sont précisées par un règlement du Comité de la réglementation comptable.
Si certaines des indications prévues aux 5°, 6°, 7°, 8° ou 13° ci-dessus sont omises en raison du préjudice grave qui pourrait résulter de leur divulgation, il est fait mention du caractère incomplet des informations données.
Article R233-15
Sous réserve d'en justifier dans l'annexe prévue à l'article L. 123-12, les sociétés mentionnées au 1° de l'article L. 233-17 sont exemptées de l'obligation d'établir des comptes consolidés et un rapport sur la gestion du groupe lorsque sont réunies les conditions suivantes :
1° Les comptes consolidés de l'ensemble plus grand d'entreprises, dans lequel ces sociétés sont incluses, sont établis en conformité avec les articles L. 233-16 à L. 233-28 ou, pour les entreprises relevant de la législation nationale d'un autre Etat, avec les dispositions prises par cet Etat pour l'application de la directive n° 83-349 du 13 juin 1983 du Conseil des communautés européennes ou, lorsque cet Etat n'est pas tenu de se conformer à cette directive, avec des principes et des règles offrant un niveau d'exigence équivalant aux dispositions des articles L. 233-16 à L. 233-28 ou à celles de ladite directive ;
2° Ils sont, selon la législation applicable à la société qui les établit, certifiés par les professionnels indépendants chargés du contrôle des comptes et publiés ;
3° Ils sont mis à la disposition des actionnaires ou des associés de la société exemptée dans les conditions et dans les délais prévus aux articles R. 225-88 et R. 225-89 ; s'ils sont établis dans une langue autre que le français, ils sont accompagnés de leur traduction en langue française.
Lorsque les comptes consolidés sont établis par une entreprise qui a son siège en dehors d'un Etat membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen, ceux-ci sont complétés de toutes les informations d'importance significative concernant la situation
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patrimoniale et financière ainsi que le résultat de l'ensemble constitué par la société exemptée, ses filiales et ses participations ; ces informations portent notamment sur le montant de l'actif immobilisé, le montant net du chiffre d'affaires, le résultat de l'exercice, le montant des capitaux propres et le nombre des membres du personnel employés en moyenne au cours de l'exercice ; ces informations sont données soit dans l'annexe des comptes consolidés mentionnés au 1°, soit dans l'annexe des comptes annuels de la société exemptée. Dans ce dernier cas, elles sont établies selon les principes et les méthodes prévues par les articles L. 233-16 à L. 233-25.
Article R233-16
Pour l'application du 2° de l'article L. 233-17, les seuils que ne doit pas dépasser, dans les conditions fixées à cet article, l'ensemble constitué par une société et les entreprises qu'elle contrôle sont fixées ainsi qu'il suit :
1° Total du bilan : 15 000 000 euros ;
2° Montant net du chiffre d'affaires : 30 000 000 euros ;
3° Nombre moyen de salariés permanents : 250.
Ces chiffres sont calculés globalement pour l'ensemble des entreprises concernées selon la méthode définie aux quatrième, cinquième et sixième alinéas de l'article R. 123-200.
Section 3 : Des participations réciproques.
Article R233-17
Le délai prévu au dernier alinéa de l'article L. 233-29 est d'un an à compter de l'information faite en application du I de l'article L. 233-7.
Article R233-18
Les délais prévus aux deuxième et quatrième alinéas de l'article L. 233-30 sont d'un an à compter de la date à laquelle les actions que la société est tenue d'aliéner sont entrées dans son patrimoine.
Article R233-19
L'avis adressé à une société, en application de l'article R. 233-17, est porté à la connaissance des actionnaires par le rapport du conseil d'administration, du directoire ou des gérants, selon le cas, et
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par celui des commissaires aux comptes, lors de l'assemblée générale ordinaire suivante.
Toute aliénation d'actions, effectuée par une société en application des articles L. 233-29 et L. 233-30, est portée à la connaissance des associés ou des actionnaires, par les rapports mentionnés à l'alinéa précédent, lors de l'assemblée suivante.
Chapitre IV : De la procédure d'alerte.
Article R234-1
Dans les sociétés anonymes, l'information prévue au premier alinéa de l'article L. 234-1 porte sur tout fait que le commissaire aux comptes relève lors de l'examen des documents qui lui sont communiqués ou sur tout fait dont il a connaissance à l'occasion de l'exercice de sa mission. Cette information est faite sans délai, par lettre recommandée avec demande d'avis de réception.
Le président du conseil d'administration ou le directoire répond par lettre recommandée avec demande d'avis de réception dans les quinze jours qui suivent la réception de l'information mentionnée ci-dessus.
Article R234-2
L'invitation du commissaire aux comptes à faire délibérer le conseil d'administration ou le conseil de surveillance prévue au deuxième alinéa de l'article L. 234-1 est formulée par lettre recommandée avec demande d'avis de réception dans les huit jours qui suivent la réponse du président du conseil d'administration ou du directoire, ou la constatation de l'absence de réponse dans les délais prévus au deuxième alinéa de l'article R. 234-1. Une copie de cette invitation est adressée sans délai par le commissaire aux comptes au président du tribunal par lettre recommandée avec demande d'avis de réception.
Le président du conseil d'administration ou le directoire convoque, dans les huit jours qui suivent la réception de la lettre du commissaire aux comptes, le conseil d'administration ou le conseil de surveillance, en vue de le faire délibérer sur les faits relevés. Le commissaire aux comptes est convoqué à cette séance dans les mêmes conditions. La délibération intervient dans les quinze jours qui suivent la réception de cette lettre.
Un extrait du procès-verbal des délibérations du conseil d'administration ou du conseil de surveillance est adressé au président du tribunal, au commissaire aux comptes, au comité d'entreprise ou, à défaut, aux délégués du personnel, par lettre recommandée avec demande d'avis de réception, dans les huit jours qui suivent la réunion du conseil.
Article R234-3
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A défaut de réponse par le président du conseil d'administration ou du directoire ou lorsque la continuité de l'exploitation demeure compromise en dépit des décisions arrêtées, le commissaire aux comptes les invite à faire délibérer une assemblée générale sur les faits relevés. Cette invitation est faite par lettre recommandée avec demande d'avis de réception dans le délai de quinze jours à compter de la réception de la délibération du conseil ou de l'expiration du délai imparti pour celle-ci. Elle est accompagnée du rapport spécial du commissaire aux comptes, qui est communiqué au comité d'entreprise ou, à défaut, aux délégués du personnel, par le président du conseil d'administration ou du directoire, dans les huit jours qui suivent sa réception.
Le conseil d'administration ou le directoire procède à la convocation de l'assemblée générale dans les huit jours suivant l'invitation faite par le commissaire aux comptes, dans les conditions prévues par les articles R. 225-62 et suivants. L'assemblée générale doit, en tout état de cause, être réunie au plus tard dans le mois suivant la date de notification faite par le commissaire aux comptes.
En cas de carence du conseil d'administration ou du directoire, le commissaire aux comptes convoque l'assemblée générale dans un délai de huit jours à compter de l'expiration du délai imparti au conseil d'administration ou au directoire et en fixe l'ordre du jour. Il peut, en cas de nécessité, choisir un lieu de réunion autre que celui éventuellement prévu par les statuts, mais situé dans le même département. Dans tous les cas, les frais entraînés par la réunion de l'assemblée sont à la charge de la société.
Article R234-4
Lorsque, en application du dernier alinéa de l'article L. 234-1, le commissaire aux comptes informe de ses démarches le président du tribunal, cette information est faite sans délai par lettre recommandée avec demande d'avis de réception. Elle comporte la copie de tous les documents utiles à l'information du président du tribunal ainsi que l'exposé des raisons qui l'ont conduit à constater l'insuffisance des décisions prises.
Article R234-5
Dans les sociétés autres que les sociétés anonymes, la demande d'explications prévue à l'article L. 234-2 porte sur tout fait que le commissaire aux comptes relève lors de l'examen des documents qui lui sont communiqués ou sur tout fait dont il a connaissance à l'occasion de l'exercice de sa mission. Cette demande est adressée sans délai par lettre recommandée avec demande d'avis de réception.
Le dirigeant répond par lettre recommandée avec demande d'avis de réception dans les quinze jours qui suivent la réception de la demande d'explication et adresse copie de la demande et de sa réponse, dans les mêmes formes et les mêmes délais, au comité d'entreprise ou, à défaut, aux délégués du personnel et au conseil de surveillance, s'il en existe. Dans sa réponse, il donne une analyse de la situation et précise, le cas échéant, les mesures envisagées. Le commissaire aux comptes informe sans délai le président du tribunal de l'existence de cette procédure par lettre recommandée avec demande d'avis de réception.
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Article R234-6
L'invitation à faire délibérer l'assemblée sur les faits relevés prévue au deuxième alinéa de l'article L. 234-2 est adressée par le commissaire aux comptes au dirigeant, par lettre recommandée avec demande d'avis de réception, dans les quinze jours qui suivent la réception de la réponse du dirigeant ou la date d'expiration du délai imparti pour celle-ci. Elle est accompagnée du rapport spécial du commissaire aux comptes. Une copie de cette invitation est adressée sans délai au président du tribunal, par lettre recommandée avec demande d'avis de réception.
Dans les huit jours de leur réception, le dirigeant communique l'invitation et le rapport du commissaire aux comptes au comité d'entreprise ou, à défaut, aux délégués du personnel et procède à la convocation de l'assemblée générale. Celle-ci doit, en tout état de cause, être réunie au plus tard dans le mois suivant la date de l'invitation faite par le commissaire aux comptes.
En cas de carence du dirigeant, le commissaire aux comptes convoque l'assemblée générale dans un délai de huit jours à compter de l'expiration du délai imparti au dirigeant. Il fixe l'ordre du jour de l'assemblée et peut, en cas de nécessité, choisir un lieu de réunion autre que celui éventuellement prévu par les statuts, mais situé dans le même département. Dans tous les cas, les frais entraînés par la réunion de l'assemblée sont à la charge de la société.
Article R234-7
Lorsque, dans les conditions prévues au dernier alinéa de l'article L. 234-2, le commissaire aux comptes informe de ses démarches le président du tribunal, cette information est faite sans délai par lettre recommandée avec demande d'avis de réception. Elle comporte la copie de tous les documents utiles à l'information du président du tribunal ainsi que l'exposé des raisons qui l'ont conduit à constater l'insuffisance des décisions prises.
Chapitre V : Des nullités.
Article R235-1
Les mises en demeure prévues par le premier alinéa de l'article L. 235-6 et par l'article L. 235-7 sont faites par acte extrajudiciaire ou par lettre recommandée avec demande d'avis de réception.
Article R235-2
Le délai prévu à l'article L. 235-7 est de trente jours à compter de la mise en demeure.
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Le mandataire chargé d'accomplir la formalité de publicité dans les conditions prévues à l'article L. 235-7 est désigné par le président du tribunal de commerce, statuant en référé.
Article R235-3
La tierce opposition contre les décisions prononçant la nullité d'une société n'est recevable que pendant un délai de six mois à compter de la publication de la décision judiciaire au Bulletin officiel des annonces civiles et commerciales.
Chapitre VI : De la fusion et de la scission.
Section 1 : Dispositions générales.
Article R236-1
Le projet de fusion ou de scission est arrêté par le conseil d'administration, le directoire, le ou les gérants de chacune des sociétés participant à l'opération de fusion ou de scission projetée.
Il contient les indications suivantes :
1° La forme, la dénomination et le siège social de toutes les sociétés participantes ;
2° Les motifs, buts et conditions de la fusion ou de la scission ;
3° La désignation et l'évaluation de l'actif et du passif dont la transmission aux sociétés absorbantes ou nouvelles est prévue ;
4° Les modalités de remise des parts ou actions et la date à partir de laquelle ces parts ou actions donnent droit aux bénéfices, ainsi que toute modalité particulière relative à ce droit, et la date à partir de laquelle les opérations de la société absorbée ou scindée seront, du point de vue comptable, considérées comme accomplies par la ou les sociétés bénéficiaires des apports ;
5° Les dates auxquelles ont été arrêtés les comptes des sociétés intéressées utilisés pour établir les conditions de l'opération ;
6° Le rapport d'échange des droits sociaux et, le cas échéant, le montant de la soulte ;
7° Le montant prévu de la prime de fusion ou de scission ;
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8° Les droits accordés aux associés ayant des droits spéciaux et aux porteurs de titres autres que des actions ainsi que, le cas échéant, tous avantages particuliers.
Article R236-2
Le projet de fusion ou de scission fait l'objet d'un avis inséré, par chacune des sociétés participant à l'opération, dans un journal habilité à recevoir des annonces légales du département du siège social. Au cas où les actions de l'une au moins de ces sociétés sont admises aux négociations sur un marché réglementé ou si toutes les actions de l'une d'entre elles au moins ne revêtent pas la forme nominative, un avis est en outre inséré au Bulletin des annonces légales obligatoires.
Cet avis contient les indications suivantes :
1° La raison sociale ou la dénomination sociale suivie, le cas échéant, de son sigle, la forme, l'adresse du siège, le montant du capital et les mentions prévues aux 1° et 2° de l'article R. 123-237 pour chacune des sociétés participant à l'opération ;
2° La raison sociale ou la dénomination sociale suivie, le cas échéant, de son sigle, la forme, l'adresse du siège et le montant du capital des sociétés nouvelles qui résultent de l'opération ou le montant de l'augmentation du capital des sociétés existantes ;
3° L'évaluation de l'actif et du passif dont la transmission aux sociétés absorbantes ou nouvelles est prévue ;
4° Le rapport d'échange des droits sociaux ;
5° Le montant prévu de la prime de fusion ou de scission ;
6° La date du projet ainsi que les date et lieu des dépôts prescrits par le premier alinéa de l'article L. 236-6.
Le dépôt au greffe prévu à l'article L. 236-6 et la publicité prévue au présent article ont lieu un mois au moins avant la date de la première assemblée générale appelée à statuer sur l'opération.
Article R236-3
Toute société par actions participant à une opération de fusion ou de scission met à la disposition de ses actionnaires, au siège social, un mois au moins avant la date de l'assemblée générale appelée à se prononcer sur le projet, les documents suivants :
1° Le projet de fusion ou de scission ;
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2° Les rapports mentionnés aux articles L. 236-9 et L. 236-10 lorsque l'opération est réalisée entre sociétés anonymes ;
3° Les comptes annuels approuvés par les assemblées générales ainsi que les rapports de gestion des trois derniers exercices des sociétés participant à l'opération ;
4° Un état comptable établi selon les mêmes méthodes et suivant la même présentation que le dernier bilan annuel, arrêté à une date qui, si les derniers comptes annuels se rapportent à un exercice dont la fin est antérieure de plus de six mois à la date du projet de fusion ou de scission, doit être antérieure de moins de trois mois à la date de ce projet.
Pour l'application du 3°, si l'opération est décidée avant que les comptes annuels du dernier exercice clos aient été approuvés, ou moins d'un mois après leur approbation, sont mis à la disposition des actionnaires les comptes arrêtés et certifiés relatifs à cet exercice et les comptes annuels approuvés des deux exercices précédents ainsi que les rapports de gestion. Dans le cas où le conseil d'administration ne les a pas encore arrêtés, l'état comptable mentionné au 4° et les comptes annuels approuvés des deux exercices précédents ainsi que les rapports de gestion sont mis à la disposition des actionnaires.
Tout actionnaire peut obtenir sur simple demande et sans frais copie totale ou partielle des documents susmentionnés.
En outre, toute société à responsabilité limitée à laquelle l'article L. 236-10 est applicable met à la disposition de ses associés, dans les conditions prévues ci-dessus, le rapport prévu à cet article. En cas de consultation par écrit, ce rapport est adressé aux associés avec le projet de résolution qui leur est soumis.
Article R236-4
La déclaration prévue à l'article L. 236-6 est déposée avec la demande d'inscription modificative au registre du commerce et des sociétés du siège de l'une des sociétés bénéficiaires.
Elle est signée par au moins un membre du directoire, administrateur ou gérant de chacune des sociétés participantes ayant reçu mandat à cet effet.
Une copie est déposée au greffe du siège social de chaque société participante qui fait l'objet d'une inscription modificative.
Article R236-5
Le rapport du conseil d'administration ou du directoire prévu à l'article L. 236-9 explique et justifie le projet de manière détaillée, du point de vue juridique et économique, notamment en ce qui
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concerne le rapport d'échange des actions et les méthodes d'évaluation utilisées, qui doivent être concordantes pour les sociétés concernées ainsi que, le cas échéant, les difficultés particulières d'évaluation.
En cas de scission, pour les sociétés bénéficiaires du transfert de patrimoine, il mentionne également l'établissement du rapport prévu à l'article L. 225-147 et indique qu'il sera déposé au greffe du tribunal de commerce du siège de ces sociétés.
La publicité de l'offre d'acquisition des certificats d'investissement est faite conformément aux dispositions de l'article R. 225-153.
Le porteur de certificats d'investissement conserve cette qualité dans la société absorbante s'il n'a pas cédé ses titres dans les trente jours de la dernière mesure de publicité.
Article R236-6
Les commissaires à la fusion ou à la scission sont désignés et accomplissent leur mission dans les conditions prévues à l'article R. 225-7.
S'il n'est établi qu'un seul rapport pour l'ensemble de l'opération, la désignation a lieu sur requête conjointe de toutes les sociétés participantes.
Article R236-7
Les commissaires aux apports vérifient notamment que le montant de l'actif net apporté par les sociétés absorbées est au moins égal au montant de l'augmentation du capital de la société absorbante ou au montant du capital de la société nouvelle issue de la fusion.
La même vérification est faite en ce qui concerne le capital des sociétés bénéficiaires de la scission.
Article R236-8
L'opposition d'un créancier à la fusion ou à la scission, dans les conditions prévues par les articles L. 236-14 et L. 236-21, est formée dans le délai de trente jours à compter de la dernière insertion prescrite par l'article R. 236-2.
L'opposition des représentants de la masse des obligataires à la fusion, prévue à l'article L. 236-15, est formée dans le même délai.
Dans tous les cas, l'opposition est portée devant le tribunal de commerce.
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Article R236-9
Dans le cas prévu au troisième alinéa de l'article L. 228-73, l'opposition des représentants de la masse des obligataires à la fusion ou à la scission est formée dans le délai de trente jours à compter de la publication prévue à l'article R. 228-80.
L'opposition est portée devant le tribunal de commerce.
Article R236-10
Les bailleurs de locaux loués aux sociétés absorbées ou scindées peuvent également former opposition à la fusion ou à la scission, dans les conditions prévues au premier alinéa de l'article R. 236-8.
Article R236-11
L'offre de remboursement des titres sur simple demande des obligataires prévue au premier alinéa des articles L. 236-13 et L. 236-18, est publiée au Bulletin des annonces légales obligatoires et, à deux reprises, dans deux journaux habilités à recevoir des annonces légales du département du siège social. Le délai entre les deux insertions est de dix jours au moins.
Les titulaires d'obligations nominatives sont informés de l'offre de remboursement, par lettre simple ou recommandée. Si toutes les obligations sont nominatives, la publicité prévue à l'alinéa précédent est facultative.
Article R236-12
Le délai prévu au troisième alinéa de l'article L. 236-13 est de trois mois à compter de la dernière formalité de publicité ou de l'envoi de la lettre simple ou recommandée prévue à l'article R. 236-11.
Section 2 : Dispositions particulières aux fusions transfrontalières.
Article R236-13
Les opérations de fusions transfrontalières sont régies par les dispositions de la présente section, ainsi que par celles non contraires de la section 1 du présent chapitre.
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Article R236-14
Un projet commun de fusion est arrêté par l'organe de gestion, d'administration ou de direction de chacune des sociétés participant à l'opération de fusion transfrontalière.
Il contient les indications suivantes :
1° La forme, la dénomination et le siège social des sociétés participantes, ainsi que ceux de la société issue de la fusion transfrontalière ;
2° Le rapport d'échange des titres, parts ou actions représentatifs du capital social et, le cas échéant, le montant de la soulte ;
3° Les modalités de remise des titres, parts ou actions de la société issue de la fusion transfrontalière, la date à partir de laquelle ces titres, parts ou actions donnent droit aux bénéfices ainsi que toute modalité particulière relative à ce droit ;
4° La date à partir de laquelle les opérations des sociétés qui fusionnent seront, du point de vue comptable, considérées comme accomplies pour le compte de la société issue de la fusion transfrontalière ;
5° Les droits accordés par la société issue de la fusion transfrontalière aux associés ayant des droits spéciaux et aux porteurs de titres autres que des actions ou des parts représentatifs du capital social ou les mesures proposées à leur égard ;
6° Tous avantages particuliers attribués aux experts qui examinent le projet de fusion transfrontalière ainsi qu'aux membres des organes d'administration, de direction, de surveillance ou de contrôle des sociétés qui fusionnent ;
7° Des informations concernant l'évaluation du patrimoine actif et passif transféré à la société issue de la fusion transfrontalière ;
8° Les dates des comptes des sociétés qui fusionnent utilisés pour définir les conditions de la fusion transfrontalière ;
9° Les statuts de la société issue de la fusion transfrontalière ;
10° Le cas échéant, des informations sur les procédures selon lesquelles sont fixées les modalités relatives à l'implication des travailleurs dans la définition de leurs droits de participation dans la société issue de la fusion transfrontalière ;
11° Les effets probables de la fusion transfrontalière sur l'emploi.
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Article R236-15
Les sociétés participant à l'opération de fusion qui sont immatriculées en France publient, dans un journal habilité à recevoir des annonces légales du département de leur siège social ainsi qu'au Bulletin officiel des annonces civiles et commerciales, un avis relatif au projet de fusion transfrontalière.
L'avis contient les indications suivantes :
1° La raison sociale ou la dénomination sociale de chaque société participante suivie, le cas échéant, de son sigle, sa forme, l'adresse de son siège où peut être consulté le projet de fusion, du montant de son capital ainsi que, pour les sociétés participantes immatriculées en France, des mentions prévues aux 1° et 2° de l'article R. 123-237 ;
2° Le registre auprès duquel chaque société participante a procédé à la publicité requise par l'article L. 236-6 ou les dispositions équivalentes de sa loi nationale, ainsi que le numéro d'inscription de la société dans ce registre ;
3° La raison sociale ou la dénomination sociale de la société nouvelle qui résulte de l'opération de fusion transfrontalière suivie, le cas échéant, de son sigle, de sa forme, de l'adresse de son siège, du montant de son capital ou du montant de l'augmentation du capital des sociétés existantes ;
4° L'évaluation de l'actif et du passif de chaque société participante dont la transmission à la société nouvelle ou absorbante est prévue ;
5° Le rapport d'échange des droits sociaux dans chaque société participante ;
6° Le montant prévu de la prime de fusion pour chaque société participante ;
7° La date du projet commun de fusion transfrontalière ainsi que, pour les sociétés participantes immatriculées en France, la date et le lieu du dépôt au registre du commerce et des sociétés prévu au deuxième alinéa de l'article L. 236-6 ;
8° L'indication, pour chaque société participante, des modalités d'exercice des droits des créanciers et, le cas échéant, des associés minoritaires ainsi que l'adresse à laquelle peut être obtenue sans frais une information exhaustive sur ces modalités.
Le dépôt au greffe du projet commun de fusion transfrontalière prévu à l'article L. 236-6 et la publicité prévue au présent article sont réalisés au moins un mois avant la date de l'assemblée générale appelée à statuer sur l'opération.
Article R236-16
Le rapport de l'organe de direction ou d'administration établi en application du premier alinéa de
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l'article L. 236-27 par chaque société participante explique et justifie le projet de fusion transfrontalière de manière détaillée, en ses aspects juridiques et économiques, notamment en ce qui concerne le rapport d'échange des actions et les méthodes d'évaluation utilisées, qui doivent être concordantes pour les sociétés concernées, ainsi que les conséquences du projet de fusion pour les associés, les salariés et les créanciers.
La mise à la disposition des associés ainsi que des délégués du personnel ou des salariés du rapport mentionné au premier alinéa est opéré un mois au moins avant la date de l'assemblée générale appelée à se prononcer sur le projet de fusion transfrontalière.
Lorsqu'il est transmis un mois au moins avant l'assemblée générale mentionnée à l'alinéa précédent, l'avis du comité d'entreprise ou, à défaut, des délégués du personnel est annexé au rapport.
Article R236-17
Le greffier dispose d'un délai de huit jours à compter du dépôt de la déclaration de conformité pour délivrer l'attestation de conformité des actes et formalités préalables à la fusion prévue à l'article L. 236-29.
Article R236-18
Le notaire qui procède au contrôle prévu à l'article L. 236-30 ne doit avoir ni instrumenté, ni rédigé d'actes sous seing privé, ni donné des consultations juridiques à l'occasion de l'opération pour laquelle le contrôle est effectué. Il ne doit pas exercer dans une société ou dans un office qui aurait instrumenté, rédigé des actes sous seing privé ou donné des consultations juridiques à l'occasion de cette opération.
Article R236-19
Chaque société participant à la fusion transfrontalière remet au notaire ou au greffier chargé du contrôle de légalité un dossier contenant, outre l'attestation de conformité délivrée par le greffier et datant de moins de six mois, les documents suivants :
# le projet commun de fusion transfrontalière ;
# les statuts de la société issue de la fusion transfrontalière ;
# une copie des avis relatifs aux publicités prévues par la présente section ;
# une copie du procès-verbal des assemblées mentionnées aux articles L. 236-9 et L. 236-13 ;
# un document attestant que les sociétés qui fusionnent ont approuvé le projet de fusion dans les mêmes termes et que les modalités relatives à la participation des salariés ont été fixées conformément au titre VII du livre III de la deuxième partie du code du travail.
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Article R236-20
Le contrôle de légalité mentionné à l'article L. 236-30 est accompli dans un délai de quinze jours à compter de la réception de l'ensemble des documents mentionnés à l'article R. 236-19.
Chapitre VII : De la liquidation.
Section 1 : Dispositions générales.
Article R237-1
La mention " société en liquidation " ainsi que le nom du ou des liquidateurs doivent figurer sur tous les actes et documents émanant de la société et destinés aux tiers, notamment sur toutes lettres, factures, annonces et publications diverses.
Article R237-2
L'acte de nomination des liquidateurs, quelle que soit sa forme, est publié, dans le délai d'un mois, dans un journal habilité à recevoir les annonces légales dans le département du siège social et, si les actions de la société sont admises aux négociations sur un marché réglementé ou si toutes ses actions ne revêtent pas la forme nominative, au Bulletin des annonces légales obligatoires.
Il contient les indications suivantes :
1° La dénomination sociale suivie, le cas échéant, de son sigle ;
2° La forme de la société, suivie de la mention " en liquidation " ;
3° Le montant du capital social ;
4° L'adresse du siège social ;
5° Les mentions prévues aux 1° et 2° de l'article R. 123-237 ;
6° La cause de la liquidation ;
7° Les nom, prénom usuel et domicile des liquidateurs ;
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8° Le cas échéant, les limitations apportées à leurs pouvoirs.
Sont en outre indiqués dans la même insertion :
1° Le lieu où la correspondance est adressée et celui où les actes et documents concernant la liquidation sont notifiés ;
2° Le tribunal de commerce au greffe duquel est effectué, en annexe au registre du commerce et des sociétés, le dépôt des actes et pièces relatifs à la liquidation.
A la diligence du liquidateur, les mêmes indications sont portées, par simple lettre, à la connaissance des porteurs d'actions et d'obligations nominatives.
Article R237-3
Au cours de la liquidation de la société, le liquidateur accomplit, sous sa responsabilité, les formalités de publicité incombant aux représentants légaux de la société.
Notamment, toute décision entraînant modification des mentions publiées en application de l'article R. 237-2 est publiée dans les conditions prévues par cet article.
Article R237-4
Dans le cas prévu par le deuxième alinéa de l'article L. 237-5, il est statué, en référé, par le président du tribunal de grande instance du lieu de la situation de l'immeuble.
Article R237-5
Le mandataire prévu par le deuxième alinéa de l'article L. 237-9 est désigné par le président du tribunal de commerce, statuant en référé.
Article R237-6
Dans le cas prévu à l'article L. 237-10, le liquidateur dépose ses comptes au greffe du tribunal de commerce où tout intéressé peut en prendre connaissance et obtenir à ses frais délivrance d'une copie.
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Le tribunal de commerce statue sur ces comptes et, le cas échéant, sur la clôture de la liquidation aux lieu et place de l'assemblée des associés ou des actionnaires.
Article R237-7
Les comptes définitifs établis par le liquidateur sont déposés au greffe du tribunal de commerce en annexe au registre du commerce et des sociétés. Il y est joint la décision de l'assemblée des associés statuant sur ces comptes, sur le quitus de la gestion et la décharge de son mandat, ou, à défaut, la décision de justice prévue à l'article R. 237-6.
Article R237-8
L'avis de clôture de la liquidation, signé par le liquidateur, est publié, à la diligence de celui-ci, dans le journal habilité à recevoir des annonces légales ayant reçu la publicité prescrite par le premier alinéa de l'article R. 237-2 et, si les actions de la société sont admises aux négociations sur un marché réglementé ou si toutes ses actions ne revêtent pas la forme nominative, au Bulletin des annonces légales obligatoires.
Il contient les indications suivantes :
1° La dénomination sociale suivie, le cas échéant, de son sigle ;
2° La forme de la société, suivie de la mention " en liquidation " ;
3° Le montant du capital social ;
4° L'adresse du siège social ;
5° Les mentions prévues aux 1° et 2° de l'article R. 123-237 ;
6° Les nom, prénom usuel et domicile des liquidateurs ;
7° La date et le lieu de réunion de l'assemblée de clôture, si les comptes des liquidateurs ont été approuvés par elle, ou, à défaut, la date de la décision de justice prévue par l'article R. 237-6, ainsi que l'indication du tribunal qui l'a prononcée ;
8° L'indication du greffe du tribunal où sont déposés les comptes des liquidateurs.
Article R237-9
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La société est radiée du registre du commerce et des sociétés sur justification de l'accomplissement des formalités prévues par les articles R. 237-7 et R. 237-8.
Section 2 : Dispositions applicables sur décision judiciaire.
Article R237-10
La liquidation de la société dans les conditions prévues aux articles L. 237-15 à L. 237-31 est ordonnée par le président du tribunal de commerce, statuant en référé, à la demande des personnes mentionnées au deuxième alinéa de l'article L. 237-14.
Article R237-11
Les contrôleurs de la liquidation sont désignés par le président du tribunal de commerce, statuant sur requête, à la demande du liquidateur, ou en référé, à la demande de tout intéressé, le liquidateur dûment appelé.
Les contrôleurs peuvent être choisis parmi les commissaires aux comptes inscrits sur la liste prévue à l'article L. 822-1.
Dans tous les cas, l'acte de nomination des contrôleurs est publié dans les mêmes conditions et délais, prévus à l'article R. 237-2, que celui des liquidateurs.
Article R237-12
Dans le cas prévu à l'article L. 237-19, le liquidateur est désigné par ordonnance du président du tribunal de commerce, statuant sur requête.
Tout intéressé peut former opposition à l'ordonnance dans le délai de quinze jours à dater de sa publication dans les conditions prévues à l'article R. 237-2. Cette opposition est portée devant le tribunal de commerce qui peut désigner un autre liquidateur.
Article R237-13
Sauf disposition contraire de l'acte de nomination, si plusieurs liquidateurs ont été nommés, ils peuvent exercer leurs fonctions séparément. Toutefois, ils établissent et présentent un rapport commun.
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Article R237-14
La rémunération des liquidateurs est fixée par la décision qui les nomme. A défaut, elle l'est postérieurement, par le président du tribunal de commerce, statuant sur requête, à la demande du liquidateur intéressé.
Article R237-15
Le président du tribunal de commerce, statuant sur requête, est compétent pour prendre les décisions prévues au deuxième alinéa de l'article L. 237-21, à l'article L. 237-23, au troisième alinéa de l'article L. 237-24, au deuxième alinéa de l'article L. 237-25, ainsi qu'au II de l'article L. 237-27.
Le président du tribunal de commerce, statuant en référé, est compétent pour prendre les décisions prévues par l'article L. 237-28 et par le deuxième alinéa de l'article L. 237-31.
Article R237-16
Toute décision de répartition de fonds est publiée dans le journal habilité à recevoir des annonces légales dans lequel a été effectuée la publicité prévue à l'article R. 237-2 et, si les actions de la société sont admises aux négociations sur un marché réglementé ou si toutes ses actions ne revêtent pas la forme nominative, au Bulletin des annonces légales obligatoires.
La décision est notifiée individuellement aux titulaires de titres nominatifs.
Article R237-17
Les sommes affectées aux répartitions entre les associés et les créanciers sont déposées, dans le délai de quinze jours à compter de la décision de répartition, à un compte ouvert dans un établissement de crédit au nom de la société en liquidation. Elles peuvent être retirées sur la signature d'un seul liquidateur et sous sa responsabilité.
Article R237-18
Si les sommes attribuées à des créanciers ou à des associés n'ont pu leur être versées, elles sont déposées, à l'expiration du délai d'un an à compter de la clôture de la liquidation, à la Caisse des dépôts et consignations.
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Chapitre VIII : Des injonctions de faire.
Chapitre IX : De la location d'actions et de parts sociales.
Article R239-1
En application de l'article L. 239-2, le contrat de bail d'actions ou de parts sociales comporte, à peine de nullité, les mentions suivantes :
1° La nature, le nombre et l'identification des actions ou des parts sociales louées ;
2° La durée du contrat et du préavis de résiliation ;
3° Le montant, la périodicité et, le cas échéant, les modalités de révision du loyer ;
4° Si les actions ou parts sociales louées sont cessibles par le bailleur en cours de contrat, les modalités de cette cession ;
5° Les conditions de répartition du boni de liquidation, dans le respect des règles légales applicables à l'usufruit.
En l'absence de mentions relatives à la révision du loyer et à la cession des titres en cours de bail, le loyer est réputé fixe et les titres incessibles pendant la durée du contrat.
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Partie réglementaire
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique.
TITRE IV : Dispositions pénales.
Chapitre Ier : Des infractions concernant les sociétés à responsabilité limitée.
Chapitre II : Des infractions concernant les sociétés anonymes.
Chapitre III : des infractions concernant les sociétés en commandite par actions.
Chapitre IV : Des infractions concernant les sociétés par actions simplifiées.
Chapitre V : Des infractions relatives aux valeurs mobilières émises par les sociétés par actions.
Chapitre VI : Infractions communes aux diverses formes de sociétés par actions.
Chapitre VII : Des infractions communes aux diverses formes de sociétés commerciales.
Article R247-1
Est puni de l'amende prévue par le 5° de l'article 131-13 du code pénal pour les contraventions de la cinquième classe le fait, pour le président, l'administrateur, le directeur général ou le gérant d'une
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société dont les actions sont admises, en tout ou partie, à la négociation sur un marché réglementé de n'avoir pas procédé aux publications prévues aux articles R. 232-11 et R. 232-13.
En cas de récidive, l'amende applicable est celle prévue par le 5° de l'article 131-13 du code pénal pour la récidive des contraventions de la cinquième classe.
Article R247-2
Est puni de l'amende prévue par le 5° de l'article 131-13 du code pénal pour les contraventions de la cinquième classe le fait, pour le président, l'administrateur, le directeur général ou le gérant d'une société, d'émettre des valeurs mobilières offertes au public :
1° Sans que soit insérée au Bulletin des annonces légales obligatoires, préalablement à toute mesure de publicité, une notice établie conformément à l'article R. 225-3 concernant l'émission d'actions lors de la constitution de la société ou, au troisième alinéa de l'article R. 225-120 concernant les augmentations de capital ;
2° Sans que les documents reproduisent les énonciations de la notice prévue au 1° ci-dessus et contiennent la mention de l'insertion de cette notice au Bulletin des annonces légales obligatoires avec référence au numéro dans lequel elle a été publiée ;
3° Sans que les annonces dans les journaux reproduisent les mêmes énonciations, ou tout au moins un extrait de ces énonciations avec référence à cette notice, et indication du numéro du Bulletin des annonces légales obligatoires dans lequel elle a été publiée ;
4° Sans que les prospectus et documents mentionnent la signature de la personne ou du représentant de la société dont l'offre émane et précisent si les valeurs offertes sont admises ou non à la négociation sur un marché réglementé, et dans l'affirmative, sur quel marché.
Le fait de servir d'intermédiaire à l'occasion de la cession de valeurs mobilières sans respecter les prescriptions mentionnées aux 1° à 4° est puni de la même amende.
En cas de récidive, l'amende applicable est celle prévue par le 5° de l'article 131-13 du code pénal pour la récidive des contraventions de la cinquième classe.
Article R247-3
Le fait de ne pas satisfaire aux obligations de dépôt prévues aux articles L. 232-21 à L. 232-23 est puni de l'amende prévue par le 5e de l'article 131-13 du code pénal pour les contraventions de la cinquième classe. En cas de récidive, la peine applicable est celle prévue par le 5e de l'article 131-13 du code pénal pour les contraventions de la cinquième classe commises en récidive.
Article R247-4
Toute infraction aux dispositions de l'article R. 237-1 est punie de l'amende prévue par le 5° de l'article 131-13 du code pénal pour les contraventions de la cinquième classe.
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Chapitre VIII : Dispositions concernant les directeurs généraux délégués des sociétés anonymes ou des sociétés européennes.
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Partie réglementaire
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique.
TITRE V : Des groupements d'intérêt économique.
Chapitre Ier : Des groupements d'intérêt économique de droit français.
Article R251-1
Le groupement d'intérêt économique cesse d'être assujetti à l'obligation de désigner un commissaire aux comptes en application des dispositions du troisième alinéa de l'article L. 251-12 dès lors qu'il compte moins de cent salariés pendant les deux exercices précédant l'expiration de son mandat.
Article R251-2
Les dispositions des articles R. 232-2 à R. 232-7 sont applicables au groupement d'intérêt économique. Toutefois, les documents mentionnés à l'article R. 232-3 ainsi que les rapports mentionnés à l'article R. 232-4 sont établis par les administrateurs auxquels le commissaire aux comptes communique, le cas échéant, ses observations.
Lorsque le commissaire aux comptes demande par lettre recommandée avec demande d'avis de réception que son rapport prévu à l'article R. 232-7 soit communiqué aux membres du groupement, les administrateurs procèdent à cette communication dans les huit jours de la réception de la demande. Le rapport est communiqué au comité d'entreprise dans le même délai.
Article R251-3
L'information prévue à l'article L. 251-15 que le commissaire aux comptes adresse aux administrateurs porte sur tout fait qu'il relève lors de l'examen des documents qui lui sont communiqués ou sur tout fait dont il a connaissance à l'occasion de l'exercice de sa mission.
Les administrateurs répondent par lettre recommandée avec demande d'avis de réception dans les quinze jours qui suivent la réception de l'information mentionnée ci-dessus et adressent copie de la
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demande et de sa réponse, dans les mêmes formes et les mêmes délais, au comité d'entreprise. Dans leur réponse, ils donnent une analyse de la situation et précisent, le cas échéant, les mesures envisagées. Le commissaire aux comptes informe immédiatement le président du tribunal compétent de l'existence de cette procédure par lettre remise en mains propres contre récépissé au président ou à son délégataire, ou par lettre recommandée avec demande d'avis de réception.
La demande du commissaire aux comptes de communication du rapport qu'il a rédigé conformément au deuxième alinéa de l'article L. 251-15 est formulée par lettre recommandée avec demande d'avis de réception dans les quinze jours qui suivent la réception de la réponse des administrateurs. La demande du commissaire aux comptes et son rapport sont communiqués par les administrateurs au comité d'entreprise dans les quinze jours qui suivent la réception de cette demande.
Lorsque, dans les conditions prévues au dernier alinéa de l'article L. 251-15, le commissaire aux comptes informe de ses démarches le président du tribunal compétent, cette information est faite immédiatement par lettre recommandée avec demande d'avis de réception. Cette information comporte la copie de tous les documents utiles à l'information du président du tribunal ainsi que l'exposé des raisons qui l'ont conduit à constater l'insuffisance des décisions prises.
Chapitre II : Du groupement européen d'intérêt économique.
Article R252-1
Le procureur de la République est compétent pour saisir le tribunal de grande instance ou le tribunal de commerce, selon le cas, en application de l'article 32-1 du règlement (CEE) n° 2137/85 du Conseil des Communautés européennes du 25 juillet 1985 relatif à l'institution d'un groupement européen d'intérêt économique.
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Partie réglementaire
LIVRE III : De certaines formes de ventes et des clauses d'exclusivité.
TITRE Ier : Des liquidations, des ventes au déballage, des soldes et des ventes en magasins d'usine.
Section 1 : Des liquidations.
Article R310-1
L'autorité administrative compétente en vertu du deuxième alinéa de l'article L. 310-1 pour recevoir les déclarations préalables aux liquidations est le préfet du département où ces opérations sont prévues.
Article R310-2
Une déclaration préalable de la vente en liquidation est adressée par lettre recommandée avec demande d'avis de réception ou remise, au préfet du département où les opérations de vente sont prévues, deux mois au moins avant la date prévue pour le début de la vente.
Toutefois, ce délai est réduit à cinq jours lorsque le motif invoqué à l'appui est consécutif à un fait imprévisible de nature à interrompre le fonctionnement de l'établissement.
Un arrêté du ministre chargé du commerce fixe la liste des informations relatives, notamment, à l'identité du vendeur, à la cause et à la durée de la vente et à l'inventaire des marchandises liquidées, ainsi que des pièces qui sont annexées à cette déclaration.
Article R310-3
Le préfet délivre un récépissé de déclaration de la vente en liquidation dans un délai maximum de quinze jours à compter de la réception du dossier complet de ladite déclaration ; si le dossier est incomplet, le préfet notifie à l'intéressé la liste des pièces manquantes dans un délai de sept jours à compter de sa réception ; à défaut de production des pièces complémentaires dans un délai de sept jours à compter de la réception de la notification des pièces manquantes, la déclaration mentionnée à l'article R. 310-2 ne peut faire l'objet d'un récépissé de déclaration.
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Dans le cas de survenance du fait imprévisible mentionné au deuxième alinéa de l'article R. 310-2, le préfet délivre le récépissé de déclaration dès réception du dossier complet.
Aucune vente en liquidation ne peut intervenir tant que le récépissé de déclaration n'a pas été délivré par le préfet.
Le préfet informe la chambre de commerce et d'industrie de la vente en liquidation ainsi déclarée.
Article R310-4
Le récépissé de déclaration est affiché sur les lieux de la vente en liquidation par le déclarant, pendant toute sa durée ; l'arrêté mentionné à l'article R. 310-2 fixe les conditions et les modalités de cet affichage.
Article R310-5
La durée maximale de la vente en liquidation fixée à deux mois par l'article L. 310-1 est réduite à quinze jours en cas de suspension saisonnière de l'activité du déclarant.
Article R310-6
Le report de la date de la vente en liquidation indiquée dans la déclaration mentionnée à l'article R. 310-2 fait l'objet d'une information préalable du préfet par lettre recommandée avec demande d'avis de réception, comportant justification de ce changement.
Tout report de cette date supérieur à deux mois donne lieu à une nouvelle déclaration dans les conditions prévues à l'article R. 310-2.
Dès qu'il en a connaissance, le déclarant est tenu d'informer le préfet par lettre recommandée avec demande d'avis de réception de toute modification de l'événement motivant la liquidation mentionné au deuxième alinéa de l'article L. 310-1.
Article R310-7
La publicité relative à une vente en liquidation ne peut porter que sur les produits inscrits à l'inventaire fourni en annexe à la déclaration préalable mentionnée à l'article R. 310-2.
L'arrêté mentionné à l'article R. 310-2 précise également les informations qui doivent figurer dans
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cette publicité et les modalités de son organisation.
Section 2 : Des ventes au déballage.
Article R310-8
I.-Une déclaration préalable de vente au déballage est adressée par l'organisateur par lettre recommandée avec demande d'avis de réception ou remise contre récépissé au maire de la commune dans laquelle l'opération de vente est prévue, dans les délais suivants :
1° Dans les mêmes délais que la demande d'autorisation d'occupation temporaire du domaine public et concomitamment à celle-ci lorsque la vente est prévue sur le domaine public et que le maire est l'autorité compétente pour délivrer l'autorisation ;
2° Dans les autres cas, dans les quinze jours au moins avant la date prévue pour le début de cette vente.
Dans les huit jours au moins avant le début de la vente, le maire informe le déclarant que, du fait du dépassement de la durée de la vente autorisée par le deuxième alinéa du I de l'article L. 310-2, il s'expose à la sanction prévue au 3° de l'article R. 310-19.
II.-Ces délais ne sont pas applicables aux ventes au déballage de fruits et légumes frais effectuées en période de crise conjoncturelle constatée en application de l'article L. 611-4 du code rural, ou en prévision de celle-ci, dans le but de favoriser, par un déstockage rapide, la régularisation des cours du marché ; ces ventes peuvent être réalisées sans délai, par décision conjointe du ministre chargé du commerce et du ministre chargé de l'agriculture et ce après consultation par le ministre chargé de l'agriculture de l'organisation interprofessionnelle compétente.
III.-Un arrêté du ministre chargé du commerce fixe la liste des informations contenues dans cette déclaration.
Article R310-9
Les ventes au déballage autorisées aux particuliers en application du troisième alinéa du I de l'article L. 310-2 sont contrôlées au moyen du registre mentionné au deuxième alinéa de l'article 321-7 du code pénal.
Section 3 : Des soldes.
Article R310-15
La déclaration préalable mentionnée au troisième alinéa de l'article L. 310-3 est faite par établissement.
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Elle est adressée par le commerçant au préfet du département, par lettre recommandée avec demande d'avis de réception, un mois au moins avant la date prévue pour le début de la vente ; ce délai commence à courir à compter de la date de son envoi.
La transmission de cette déclaration peut être effectuée par voie électronique. Dans ce cas, la déclaration donne lieu à la délivrance d'un avis de réception électronique. Le préfet veille à ce que cette transmission soit assurée de manière sécurisée, conformément à l'article 1316-1 du code civil.
Un arrêté du ministre chargé du commerce fixe la liste des informations contenues dans la déclaration et les modalités de la déclaration par voie électronique.
Article R310-15-1
Le commerçant tient à la disposition des services chargés du contrôle des ventes en périodes de soldes l'avis de réception de sa déclaration.
Article D310-15-2
En application du 1° de l'article L. 310-3 du code de commerce :
# les soldes d'hiver débutent le deuxième mercredi du mois de janvier à 8 heures du matin ; cette date est avancée au premier mercredi du mois de janvier lorsque le deuxième mercredi intervient après le 12 du mois ;
# les soldes d'été débutent le dernier mercredi du mois de juin à 8 heures du matin.
Article D310-15-3
Par dérogation aux dispositions de l'article D. 310-15-2 et en application du 1° de l'article L. 310-3, les soldes sont fixés à des dates différentes dans certaines zones. Ces zones, ainsi que les dates qui y sont applicables, sont fixées en annexe.
Article Annexe art. D310-15-3
LISTE DES ZONES MENTIONNÉES À L'ARTICLE D. 310-15-3
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Soldes d'été : dernier samedi de septembre
Soldes d'été : deuxième samedi d'octobre
Soldes d'été : premier jeudi du mois d'octobre
Soldes d'été : premier jour ouvré du mois de septembre
Soldes d'hiver : premier mercredi après le 15 janvier
Article R310-16
Toute personne se livrant à des ventes en soldes tient à la disposition des agents habilités à opérer des contrôles les documents justifiant que les marchandises vendues en soldes avaient été proposées à la vente, et lorsque le vendeur n'est ni le producteur ni son mandataire que leur prix d'achat avait été payé, depuis au moins un mois à la date de début de la période de soldes considérée.
Article R310-17
Toute publicité relative à une opération de soldes mentionne la date de début de l'opération et la nature des marchandises sur lesquelles porte l'opération, si celle-ci ne concerne pas la totalité des produits de l'établissement.
Section 4 : Des ventes en magasins ou dépôts d'usine.
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Article R310-18
Tout producteur, vendant directement au public une partie de sa production sous l'une des dénominations mentionnées à l'article L. 310-4, tient à la disposition des agents habilités à opérer des contrôles toute pièce justifiant de l'origine et de la date de fabrication des produits faisant l'objet de ces ventes directes au public.
Section 5 : Des sanctions.
Article R310-19
Est puni de l'amende prévue par le 5° de l'article 131-13 du code pénal pour les contraventions de la cinquième classe :
1° Le fait de ne pas afficher le récépissé de déclaration de la vente en liquidation dans les conditions prévues à l'article R. 310-4 ;
2° Le fait de ne pas mentionner dans toute publicité relative à une opération de liquidation les indications exigées à l'article R. 310-7 ;
3° Le fait de réaliser une vente au déballage en méconnaissance de la durée de la vente autorisée par le deuxième alinéa du I de l'article L. 310-2 et dont le déclarant a été informé par le maire en application de l'article R. 310-8 ;
4° Le fait de ne pas mentionner dans toute publicité relative à une opération de soldes les indications exigées à l'article R. 310-17.
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Partie réglementaire
LIVRE III : De certaines formes de ventes et des clauses d'exclusivité.
TITRE II : Des ventes aux enchères publiques.
Chapitre Ier : Des ventes volontaires de meubles aux enchères publiques.
Section 1 : Dispositions générales.
Sous-section 1 : Les sociétés de ventes volontaires de meubles aux enchères publiques.
Paragraphe 1 : De l'agrément.
Article R321-1
Les fondateurs et les premiers organes de gestion, d'administration, de direction et de surveillance de la société pour le compte de laquelle l'agrément du Conseil des ventes volontaires de meubles aux enchères publiques est sollicité, ou l'un d'entre eux dûment mandaté, présentent cette demande par lettre recommandée avec demande d'avis de réception.
La demande est accompagnée des pièces suivantes :
1° Une copie des statuts de la société et de l'acte nommant son représentant légal ;
2° Un document justifiant de l'identité des personnes habilitées à diriger les ventes et, s'il s'agit de salariés de la société, la copie de leur contrat de travail ou une attestation de leur employeur précisant la nature de leurs attributions, ainsi que la justification que la société reprendra les engagements résultant de ce contrat de travail conformément à l'article 1843 du code civil ;
3° Les documents justifiant de l'expérience professionnelle des personnes qui seront appelées à diriger la société ;
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4° Les documents justifiant que les personnes chargées, au sein de la société, de diriger des ventes ont la qualification requise ou sont titulaires d'un titre, d'un diplôme ou d'une habilitation reconnus équivalents ;
5° Les documents justifiant des moyens techniques et financiers dont disposera la société ;
6° Un document justifiant de l'existence dans un établissement de crédit d'un compte destiné exclusivement à recevoir les fonds détenus pour le compte d'autrui.
Article R321-2
Le Conseil des ventes volontaires de meubles aux enchères publiques se fait communiquer tous renseignements ou documents utiles et procède à l'audition des personnes qui seront appelées à diriger la société pour laquelle l'agrément est sollicité ou à diriger les ventes en son sein.
Article R321-3
Le conseil dispose d'un délai de quatre mois à compter de la réception de l'ensemble des pièces mentionnées à l'article R. 321-1 pour se prononcer sur la demande. A défaut de décision expresse dans ce délai, la demande est réputée rejetée.
La décision est notifiée aux personnes qui ont sollicité l'agrément par lettre recommandée avec demande d'avis de réception.
La notification indique le délai et les modalités du recours ouvert à l'encontre de cette décision.
Article R321-4
L'immatriculation ou l'enregistrement des modifications statutaires au registre du commerce et des sociétés d'une société de ventes volontaires de meubles aux enchères publiques ne peuvent intervenir qu'après que le conseil a délivré l'agrément.
Article R321-5
Les sociétés agréées transmettent au conseil, dans un délai de trente jours à compter de leur immatriculation ou de l'enregistrement au registre du commerce et des sociétés de leurs modifications statutaires, les justificatifs d'une assurance couvrant leur responsabilité professionnelle et d'une assurance ou d'un cautionnement garantissant la représentation des fonds détenus pour le compte d'autrui ainsi que la déclaration prévue à l'article R. 321-15.
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Il ne peut être procédé à aucune vente avant la transmission des justificatifs prévue à l'alinéa précédent.
Article R321-6
Les sociétés agréées font connaître au conseil, dans un délai de trente jours à compter de la date à laquelle elles se produisent, les modifications de fait ou de droit susceptibles d'affecter leur capacité d'exercer l'activité de ventes volontaires de meubles aux enchères publiques, notamment leur cessation temporaire ou définitive d'activité ainsi que tout changement dans la situation déclarée en application de l'article R. 321-1. Ces notifications sont accompagnées des justificatifs nécessaires.
Article R321-7
Chaque année, dans un délai de trente jours à compter de l'expiration de la précédente garantie, elles transmettent au conseil les justificatifs du renouvellement de l'assurance couvrant leur responsabilité professionnelle et de l'assurance ou du cautionnement garantissant la représentation des fonds détenus pour le compte d'autrui.
La caution ou l'assureur informe le conseil, dans les trente jours, de la suspension de la garantie ou de la résiliation du contrat.
Article R321-8
Le greffier chargé de la tenue du registre du commerce et des sociétés avise le conseil de la radiation d'un dirigeant de société agréée lorsque celle-ci a été ordonnée après que la mise à jour du casier judiciaire a révélé l'existence d'une interdiction d'exercer le commerce ou de gérer.
Article R321-9
En cas de manquement aux obligations prévues par les articles R. 321-5 à R. 321-7 ou au vu des éléments qui lui sont communiqués par le greffier chargé de la tenue du registre du commerce et des sociétés en application de l'article R. 321-8, le conseil peut décider du retrait de l'agrément d'une société de ventes volontaires de meubles aux enchères publiques.
La décision de retrait est notifiée à la société dans les conditions prévues à l'article R. 321-3 et, par lettre simple, au greffe du lieu d'immatriculation de la société. Le greffier porte d'office, sur l'extrait du registre du commerce et des sociétés, la mention du retrait de l'agrément.
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Paragraphe 2 : De l'assurance et du cautionnement.
Article R321-10
Le cautionnement prévu au 3° de l'article L. 321-6 ne peut être consenti que par l'un des établissements de crédit habilités à cet effet ou l'une des institutions ou l'un des établissements mentionnés à l'article L. 518-1 du code monétaire et financier, une société d'assurances ou une société de caution mutuelle, habilités à donner caution.
Article R321-11
Le cautionnement résulte d'une convention écrite qui, outre les conditions générales, précise le montant de la garantie accordée, les conditions de rémunération, les modalités de contrôle comptable ainsi que les contre-garanties éventuellement exigées par la caution.
Article R321-12
La caution ou l'assureur délivre à la société de ventes volontaires de meubles aux enchères publiques une attestation de cautionnement ou d'assurance précisant la dénomination de l'établissement de crédit auprès duquel est ouvert le compte prévu au 1° de l'article L. 321-6, ainsi que le numéro de ce compte, le montant et la durée de la garantie accordée et les restrictions éventuelles apportées à celle-ci.
Article R321-13
La caution ou l'assureur n'est tenu que s'il est justifié d'une créance certaine, liquide et exigible et de la défaillance de la société garantie.
La caution ne peut opposer au créancier le bénéfice de discussion.
Pour le garant, la défaillance de la société garantie résulte d'une sommation de payer ou de restituer suivie de refus ou demeurée infructueuse un mois après sa signification.
Article R321-14
Le montant de la garantie accordée à une société ne peut être inférieur à la plus élevée des deux
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sommes suivantes :
1° Le chiffre moyen mensuel des ventes, taxes comprises et net d'honoraires, réalisé par la société au cours de l'exercice précédent ;
2° La moitié du montant maximal des fonds détenus par la société pour le compte des tiers, à un moment quelconque, au cours des douze mois précédents.
Article R321-15
Lorsqu'une société de ventes volontaires de meubles aux enchères publiques exerce son activité depuis moins d'une année, le montant de la garantie ne peut être inférieur au montant prévisionnel moyen des ventes mensuelles, taxes comprises et net d'honoraires, pour l'exercice en cours. Ce montant prévisionnel fait l'objet d'une déclaration par la société à l'assureur ou à la société de cautionnement.
Article R321-16
Toute société de ventes volontaires de meubles aux enchères publiques adapte chaque année le montant de la garantie qu'elle a souscrite. Elle révise également ce montant lorsque des circonstances particulières sont susceptibles de modifier l'étendue du risque.
Article R321-17
Les contrats d'assurance ne doivent pas prévoir de franchise à la charge de l'assuré supérieure à 10 % des indemnités dues, dans la limite de 8 000 euros par créancier. La franchise n'est pas opposable aux créanciers de la société.
Paragraphe 3 : Des qualifications requises.
Article R321-18
Sous réserve des dispositions de l'article R. 321-65, nul ne peut diriger des ventes volontaires de meubles aux enchères publiques s'il ne remplit les conditions suivantes :
1° Etre Français ou ressortissant d'un Etat autre que la France membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen ;
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2° N'avoir fait l'objet ni d'une condamnation pénale pour des faits contraires à l'honneur ou à la probité ni, dans la profession qu'il exerçait antérieurement, d'une sanction disciplinaire ou administrative de destitution, radiation, révocation, de retrait d'agrément ou d'autorisation pour des faits de même nature ;
3° Sous réserve des dispenses prévues aux articles R. 321-19 et R. 321-21, être soit titulaire d'un diplôme national en droit et d'un diplôme national d'histoire de l'art, d'arts appliqués, d'archéologie ou d'arts plastiques, l'un de ces diplômes étant au moins une licence et l'autre sanctionnant au moins un niveau de formation correspondant à deux années d'études supérieures, soit titulaire de titres ou diplômes, admis en dispense, dont la liste est fixée par arrêté conjoint du garde des sceaux, ministre de la justice, et du ministre chargé de l'enseignement supérieur ;
4° Avoir subi avec succès l'examen d'accès au stage prévu aux articles R. 321-20 à R. 321-25 ;
5° Avoir accompli le stage mentionné au 4° dans les conditions prévues aux articles R. 321-26 à R. 321-31.
Les personnes mentionnées à l'article 54 de la loi n° 2000-642 du 10 juillet 2000 portant réglementation des ventes volontaires de meubles aux enchères publiques sont dispensées des conditions prévues aux 1°, 3°, 4° et 5°.
Article R321-19
Les clercs justifiant d'une pratique professionnelle d'au moins sept ans dans un ou plusieurs offices de commissaire-priseur ou de commissaire-priseur judiciaire, les personnes ayant exercé pendant la même durée des responsabilités équivalentes au sein d'une ou plusieurs sociétés de ventes volontaires de meubles aux enchères publiques ainsi que les personnes ayant exercé successivement ces responsabilités dans un office de commissaire-priseur et une société de ventes volontaires de meubles aux enchères publiques pendant une durée totale d'au moins sept ans sont dispensés des conditions prévues aux 3°, 4° et 5° de l'article R. 321-18, par décision du Conseil des ventes volontaires de meubles aux enchères publiques, s'ils subissent avec succès un examen d'aptitude devant le jury prévu aux articles R. 321-23 et suivants.
La durée de pratique professionnelle prévue à l'alinéa précédent doit avoir été acquise au cours des dix dernières années.
Le programme et les modalités de l'examen d'aptitude sont fixés par arrêté du garde des sceaux, ministre de la justice.
Nul ne peut se présenter plus de trois fois à l'examen.
Sous-paragraphe 1 : De l'examen d'accès au stage.
Article R321-20
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Sont admises à se présenter à l'examen d'accès au stage mentionné au 4° de l'article R. 321-18 les personnes qui remplissent les conditions prévues au 3° dudit article.
Article R321-21
Sont dispensés de la possession du diplôme national en droit prévue au 3° de l'article R. 321-18 :
1° Les membres et anciens membres du Conseil d'Etat et les membres et anciens membres des tribunaux administratifs et des cours administratives d'appel ;
2° Les magistrats et anciens magistrats de l'ordre judiciaire ;
3° Les magistrats et anciens magistrats de la Cour des comptes, des chambres régionales des comptes et des chambres territoriales des comptes de la Polynésie française et de la Nouvelle-Calédonie ;
4° Les professeurs des universités et maîtres de conférence titulaires d'un doctorat en droit ;
5° Les avocats au Conseil d'Etat et à la Cour de cassation ;
6° Les avocats inscrits à un barreau français et les anciens conseils juridiques ;
7° Les avoués près les cours d'appel ;
8° Les huissiers de justice ;
9° Les notaires ;
10° Les administrateurs judiciaires, les mandataires judiciaires au redressement et à la liquidation des entreprises, les anciens syndics et administrateurs judiciaires ;
11° Les greffiers et anciens greffiers des tribunaux de commerce ;
12° Les fonctionnaires et anciens fonctionnaires de catégorie A, ou les personnes assimilées aux fonctionnaires de cette catégorie, ayant exercé en cette qualité des activités juridiques pendant cinq ans au moins, dans une administration, un service public ou une organisation internationale.
Article R321-22
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L'examen d'accès au stage a lieu au moins une fois par an.
Les conditions d'organisation, le programme et les modalités de l'examen, qui comporte des épreuves écrites et orales portant sur des matières artistiques, juridiques, économiques et comptables ainsi que sur une langue vivante étrangère, sont fixés par arrêté du garde des sceaux, ministre de la justice, après avis du Conseil des ventes volontaires de meubles aux enchères publiques et de la Chambre nationale des commissaires-priseurs judiciaires.
Nul ne peut se présenter plus de trois fois à l'examen d'accès au stage.
Article R321-23
L'examen d'accès au stage est subi devant un jury présidé par un magistrat de l'ordre judiciaire. Ce jury est composé en outre d'un professeur d'histoire de l'art de l'enseignement supérieur en activité, d'un conservateur du patrimoine (spécialité musées), d'un commissaire-priseur judiciaire et de deux personnes habilitées à diriger des ventes volontaires de meubles aux enchères publiques.
Article R321-24
Le président et les membres du jury sont nommés par arrêté du garde des sceaux, ministre de la justice. Le professeur d'histoire de l'art est désigné sur proposition du ministre chargé des universités, le conservateur du patrimoine sur proposition du ministre chargé de la culture, le commissaire-priseur judiciaire sur proposition du bureau de la Chambre nationale des commissaires-priseurs judiciaires et les deux personnes habilitées sur proposition du Conseil des ventes volontaires de meubles aux enchères publiques.
Des suppléants sont nommés en nombre égal et dans les mêmes conditions. Des examinateurs spécialisés peuvent être désignés par arrêté du garde des sceaux, ministre de la justice.
Article R321-25
Le président, les membres du jury et les examinateurs spécialisés ne peuvent siéger plus de trois années consécutives.
En cas de partage égal des voix, celle du président est prépondérante.
Sous-paragraphe 2 : Du stage.
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Article R321-26
La durée du stage est de deux ans, dont un an au moins en France.
Le stage comprend un enseignement théorique portant sur un approfondissement des connaissances en matière artistique, économique, comptable et juridique et un enseignement pratique, dispensés sous le contrôle du Conseil des ventes volontaires de meubles aux enchères publiques et selon des modalités qu'il détermine conjointement avec la Chambre nationale des commissaires-priseurs judiciaires.
Article R321-27
Les travaux de pratique professionnelle sont effectués auprès d'une société de ventes volontaires de meubles aux enchères publiques, d'un commissaire-priseur judiciaire ou, à la demande du stagiaire et pour six mois au maximum, auprès d'un notaire, d'un huissier de justice, d'un administrateur judiciaire ou d'un mandataire judiciaire dont le stagiaire indique le nom au conseil.
Article R321-28
Le conseil procède à l'affectation des stagiaires dans les offices de commissaire-priseur judiciaire, sur avis de la Chambre nationale des commissaires-priseurs judiciaires, ou dans les sociétés de ventes volontaires.
Le stagiaire effectue six mois de stage au moins dans un office de commissaire-priseur judiciaire.
Article R321-29
A l'issue de la première année de stage, le conseil s'assure, au vu d'un dossier communiqué par le maître de stage, de l'aptitude du stagiaire à poursuivre la formation professionnelle.
A cet effet, le conseil organise un entretien destiné à évaluer les connaissances pratiques du stagiaire.
Le conseil peut, s'il l'estime nécessaire, autoriser le stagiaire à recommencer les travaux de la première année de formation professionnelle. Cette autorisation ne peut être accordée qu'une seule fois.
Article R321-30
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Au terme du stage, le conseil délivre au stagiaire, qui a démontré son aptitude à l'exercice de la profession, un certificat de bon accomplissement du stage.
Dans le cas contraire, le conseil, selon la gravité des insuffisances constatées, autorise le stagiaire à recommencer les travaux de deuxième année de formation professionnelle, ou refuse de délivrer le certificat. L'autorisation de recommencer les travaux de deuxième année ne peut être accordée qu'une seule fois.
Article R321-31
L'exclusion du stage peut être prononcée par le conseil pour des motifs disciplinaires après que l'intéressé a été mis en mesure de présenter sa défense.
Paragraphe 4 : Des mesures d'information et de publicité.
Article R321-32
Il est procédé à l'information du Conseil des ventes volontaires de meubles aux enchères publiques prévue à l'article L. 321-7 par lettre recommandée avec demande d'avis de réception, huit jours au moins avant la date d'exposition des meubles offerts à la vente ou de réalisation de la vente projetée.
Lorsque la vente a lieu à distance par voie électronique, l'information prévue à l'article L. 321-7 peut être adressée au conseil sur support électronique.
Article R321-33
La publicité prévue au premier alinéa de l'article L. 321-11 précise au moins la date et le lieu de la vente projetée, la dénomination de la société organisatrice ainsi que son numéro d'agrément, le nom de la personne habilitée qui dirige la vente et, le cas échéant, le numéro de la déclaration faite en application de l'article L. 321-24.
Article R321-34
A la clôture d'une vente aux enchères publiques effectuée à distance par voie électronique, la société organisatrice assure l'information en ligne du public sur la désignation des biens adjugés, leur prix d'adjudication ainsi que sur le jour et l'heure de la clôture de la vente de chacun de ceux-ci.
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Article R321-35
En cas de courtage aux enchères réalisé à distance par voie électronique, le courtier assure l'information en ligne du public sur la nature exacte des opérations de courtage, sur les obligations respectives des vendeurs et des acheteurs et sur les conditions de conclusion des ventes. Cette information reproduit de manière apparente les dispositions du deuxième alinéa de l'article L. 321-3.
Sous-section 2 : Le Conseil des ventes volontaires de meubles aux enchères publiques.
Paragraphe 1 : Du fonctionnement.
Article R321-36
Le Conseil des ventes volontaires de meubles aux enchères publiques se réunit sur convocation de son président. La convocation est de droit lorsque le commissaire du Gouvernement ou quatre membres du conseil en font la demande.
L'ordre du jour est fixé par le président. Le commissaire du Gouvernement ou quatre membres du conseil peuvent faire inscrire à l'ordre du jour toute question relevant de la compétence du conseil.
Article R321-37
Le Conseil des ventes volontaires de meubles aux enchères publiques ne peut valablement délibérer que si au moins six membres sont présents. Lorsque le quorum n'est pas atteint sur un ordre du jour donné, le conseil délibère valablement quel que soit le nombre de ses membres après une nouvelle convocation portant sur le même ordre du jour et précisant qu'aucun quorum n'est exigé.
Les décisions sont prises à la majorité des membres présents. En cas de partage égal des voix, la voix du président est prépondérante.
Article R321-38
Le Conseil des ventes volontaires de meubles aux enchères publiques établit son règlement intérieur, qui fixe notamment ses conditions de fonctionnement et l'organisation de ses services. Ce règlement définit également les conditions dans lesquelles le conseil peut désigner certains de ses membres pour procéder aux auditions et entretiens prévus aux articles R. 321-2 et R. 321-29.
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Article R321-39
Les fonctions de membre du conseil sont gratuites.
Toutefois, les membres du conseil et le commissaire du Gouvernement ont droit à l'indemnisation des frais et sujétions auxquels les expose l'exercice de leurs fonctions.
Article R321-40
Le commissaire du Gouvernement est nommé par arrêté du garde des sceaux, ministre de la justice.
Il exerce ses attributions en matière disciplinaire dans les conditions prévues aux articles R. 321-45 à R. 321-49.
Il participe aux séances du conseil avec voix consultative, sous réserve des dispositions particulières prévues en matière disciplinaire au deuxième alinéa de l'article R. 321-48.
Il peut former, à l'encontre des décisions du conseil, le recours prévu à l'article L. 321-23.
Article R321-40-1
Sur simple demande, le commissaire du Gouvernement se fait communiquer, pour le compte du Conseil des ventes volontaires de meubles aux enchères publiques, les documents dont la conservation est prévue par l'article L. 561-12 du code monétaire et financier.
Article R321-41
Pour l'application du dernier alinéa de l'article L. 321-21, les sociétés de ventes volontaires de meubles aux enchères publiques et les experts agréés déclarent au conseil, chaque année avant le 30 avril, le chiffre d'affaires réalisé ou les honoraires bruts perçus l'année précédente à l'occasion des ventes organisées sur le territoire national. Ces déclarations sont assorties des pièces justificatives.
Article R321-42
Le Conseil des ventes volontaires de meubles aux enchères publiques détermine le taux et les modalités de calcul de la cotisation annuelle des sociétés de ventes volontaires et des experts agréés.
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Lorsqu'une société de ventes volontaires de meubles aux enchères publiques ou un expert agréé exercent leur activité depuis moins d'une année, la cotisation est calculée en fonction du chiffre d'affaires ou des honoraires bruts qu'ils prévoient de réaliser ou de percevoir au cours de la première année d'exercice. Le montant du chiffre d'affaires ou des honoraires bruts prévisionnels est déclaré dans les conditions prévues à l'article R. 321-41.
Article R321-43
Le Conseil des ventes volontaires de meubles aux enchères publiques arrête son budget, chaque année, avant le 31 décembre, sur proposition du président.
Le président exécute le budget.
Article R321-44
Le Conseil des ventes volontaires de meubles aux enchères publiques rend compte de son activité dans un rapport annuel, qui comporte un bilan de l'application de l'article L. 321-3 et des articles R. 321-10 à R. 321-17, ainsi qu'un relevé statistique des différentes catégories de déclarations reçues et des décisions prises en matière de reconnaissance des qualifications professionnelles des ressortissants des Etats membres de la Communauté européenne ou parties à l'accord sur l'Espace économique européen. Ce rapport est adressé au garde des sceaux, ministre de la justice, au ministre chargé de l'économie et des finances et au ministre chargé de la culture. Il est communiqué à la Chambre nationale des commissaires-priseurs judiciaires, au Conseil supérieur du notariat, à la Chambre nationale des huissiers de justice ainsi qu'aux instances départementales de ces professions. Le cas échéant, les observations du commissaire du Gouvernement sont annexées à ce rapport.
Paragraphe 2 : De la procédure disciplinaire.
Article R321-45
Le Conseil des ventes volontaires de meubles aux enchères publiques statuant en matière disciplinaire, dans les cas prévus aux articles L. 321-22 et L. 321-28, est saisi par le commissaire du Gouvernement.
Le commissaire du Gouvernement peut engager simultanément des poursuites à l'encontre de la société agréée et de la personne habilitée à diriger les ventes. Il procède à l'instruction préalable du dossier et peut se faire communiquer tous renseignements ou documents et procéder à toutes auditions utiles.
Article R321-46
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La personne poursuivie est appelée à comparaître devant le conseil par le commissaire du Gouvernement.
La convocation est adressée par lettre recommandée avec demande d'avis de réception, un mois au moins à l'avance. Elle énonce les faits reprochés.
La personne convoquée peut prendre connaissance de son dossier auprès du conseil.
Article R321-47
Le Conseil des ventes volontaires de meubles aux enchères publiques peut se faire communiquer tout renseignement ou document et procéder à toute audition utile.
Les débats sont publics. Toutefois, le conseil peut décider que les débats ne seront pas publics si la personne poursuivie en fait expressément la demande ou s'il doit résulter de leur publicité une atteinte à un secret protégé par la loi ou à l'intimité de la vie privée ; mention en est faite dans la décision.
La personne poursuivie est entendue et peut se faire assister d'un avocat.
Article R321-48
Le Conseil des ventes volontaires de meubles aux enchères publiques statue, par décision motivée, après avoir entendu le commissaire du Gouvernement, la personne poursuivie et son avocat.
Le commissaire du Gouvernement n'assiste pas au délibéré.
Article R321-49
La décision est notifiée à la personne poursuivie, par lettre recommandée avec demande d'avis de réception, et au commissaire du Gouvernement. La notification indique le délai et les modalités du recours ouvert à l'encontre de la décision.
Paragraphe 3 : Du recours contre les décisions du conseil ou de son président.
Article R321-50
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Le recours contre les décisions du Conseil des ventes volontaires de meubles aux enchères publiques ou de son président est formé par déclaration remise contre récépissé ou adressée par lettre recommandée avec demande d'avis de réception au greffe de la cour d'appel de Paris.
Article R321-51
Le délai de recours est d'un mois à compter de la notification de la décision. Toutefois, ce délai court à compter de la date de la décision pour les recours formés par le commissaire du Gouvernement.
Le délai de recours est interrompu par un recours gracieux.
Article R321-52
Le recours n'est pas suspensif d'exécution. Toutefois, le premier président de la cour d'appel de Paris, statuant en référé, peut suspendre l'exécution de la décision ou de certains de ses effets, lorsque celle-ci risque d'entraîner des conséquences manifestement excessives ou qu'il est fait état d'un moyen propre à créer, en l'état de l'instruction, un doute sérieux quant à la légalité de la décision.
Article R321-53
Le recours est instruit et jugé selon les règles applicables à la procédure sans représentation obligatoire, le ministère public entendu. Il est notifié au Conseil des ventes volontaires de meubles aux enchères publiques et, le cas échéant, à l'auteur de la demande faisant l'objet de la décision contestée.
Le Conseil des ventes volontaires de meubles aux enchères publiques est partie à l'instance.
Les parties ont la faculté de se faire assister ou représenter par un avocat ou un avoué.
Article R321-54
Les débats devant la cour d'appel sont publics. Toutefois, la cour peut décider que les débats ne seront pas publics si la personne poursuivie en fait expressément la demande ou s'il doit résulter de leur publicité une atteinte à un secret protégé par la loi ou à l'intimité de la vie privée ; mention en est faite dans la décision.
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Article R321-55
La décision de la cour d'appel est notifiée, à la diligence du greffe, par lettre recommandée avec demande d'avis de réception aux parties, au commissaire du Gouvernement et au procureur général.
Section 2 : De la libre prestation de services de l'activité de ventes volontaires de meubles aux enchères publiques par les ressortissants des Etats membres de la Communauté européenne et des Etats parties à l'accord sur l'Espace économique européen.
Article R321-56
Les ressortissants d'un Etat autre que la France, membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen, qui exercent à titre permanent ou occasionnel l'activité de ventes volontaires de meubles aux enchères publiques, sont tenus de souscrire les garanties mentionnées aux 2° et 3° de l'article L. 321-6.
Ils sont réputés satisfaire à ces obligations s'ils justifient avoir contracté, selon les règles de l'Etat où ils les ont souscrites, des assurances et garanties équivalentes quant aux modalités et à l'étendue de la couverture. A défaut d'équivalence complète, ils sont tenus de souscrire une assurance ou une garantie complémentaire.
Article R321-57
La déclaration prévue à l'article L. 321-24 est écrite. Elle est adressée, dans le délai prévu au même article, au conseil des ventes volontaires de meubles aux enchères publiques par lettre recommandée avec demande d'avis de réception ou par tout autre moyen.
Article R321-58
La déclaration prévue à l'article L. 321-24 est accompagnée des pièces suivantes :
1° Les documents justifiant l'identité et la nationalité de l'auteur de la déclaration ou, s'il s'agit d'une personne morale relevant de la législation d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen, une copie de ses statuts et la justification de son immatriculation dans un registre public ;
2° Les documents justifiant de la légalité de l'exercice, par le déclarant, de l'activité de ventes volontaires de meubles aux enchères publiques dans l'Etat d'établissement, de la qualité professionnelle du déclarant et, s'il y a lieu, du nom de l'organisme professionnel dont il relève ;
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3° La preuve par tout moyen de l'exercice de l'activité de ventes volontaires de meubles aux enchères publiques pendant au moins deux années au cours des dix années précédant la première vente en France lorsque ni cette activité ni la formation y conduisant ne sont réglementées dans l'Etat d'établissement ;
4° Une attestation délivrée par l'autorité compétente ou, à défaut, une attestation sur l'honneur du déclarant, certifiant qu'il n'encourt aucune interdiction, même temporaire, d'exercer l'activité de ventes volontaires de meubles aux enchères publiques dans son Etat d'établissement ;
5° Supprimé ;
6° L'indication de la date et du lieu de réalisation de la vente projetée ainsi que l'identité et la qualification de la personne chargée de diriger celle-ci ;
7° La justification d'une assurance couvrant la responsabilité professionnelle encourue à l'occasion de cette vente et d'une assurance ou d'un cautionnement garantissant la représentation des fonds détenus pour le compte d'autrui.
Les pièces en langue étrangère doivent être assorties d'une traduction en langue française, à l'exception de celles justifiant l'identité et la nationalité de l'auteur de la déclaration.
Les pièces mentionnées aux 4° et 7° ne peuvent dater de plus de trois mois lors de leur production.
Article R321-59
Le renouvellement de la déclaration prévue à l'article L. 321-24 est accompagné des pièces mentionnées aux 6° et 7° de l'article R. 321-58 et, en cas de changement matériel relatif à la situation établie par les autres pièces mentionnées à cet article, des documents justifiant de ces changements.
Article R321-60
Dans un délai de quinze jours à compter de la réception de la déclaration prévue à l'article L. 321-24, le conseil informe le cas échéant le demandeur de tout document manquant.
Article R321-61
Le Conseil des ventes volontaires de meubles aux enchères publiques assure l'échange avec les autorités compétentes des autres Etats membres de la Communauté européenne ou parties à l'accord sur l'Espace économique européen des informations nécessaires au traitement de la plainte d'un destinataire de services fournis dans le cadre d'une vente volontaire de meubles aux enchères publiques assurée dans le cadre d'une prestation de services par un ressortissant de l'un de ces Etats. Il informe le destinataire de la suite donnée à sa plainte.
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Section 3 : De l'établissement en France des personnes habilitées à diriger des ventes volontaires de meubles aux enchères publiques dans un autre Etat membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen.
Article R321-65
Sont réputés avoir la qualification requise pour diriger les ventes volontaires de meubles aux enchères publiques, sans avoir à remplir les conditions prévues aux 3°, 4° et 5° de l'article R. 321-18, les ressortissants d'un Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen, titulaires d'un ou plusieurs diplômes ou titres de formation assimilés sanctionnant un cycle d'études postsecondaires, d'une durée d'au moins un an ou d'une durée équivalente en cas d'études à temps partiel et dont l'une des conditions d'accès est l'accomplissement du cycle d'études secondaires exigé pour accéder à l'enseignement universitaire ou supérieur, ou l'accomplissement d'une formation de niveau secondaire équivalente, ainsi que la formation professionnelle éventuellement requise en plus de ce cycle d'études postsecondaires, à condition :
1° Soit que ces diplômes ou titres permettent l'exercice de l'activité professionnelle de ventes volontaires de meubles aux enchères publiques dans un Etat membre ou un Etat partie à l'accord sur l'Espace économique européen qui réglemente l'accès à la profession ou son exercice ;
2° Soit que ces diplômes ou titres sanctionnent une formation réglementée visant spécifiquement l'exercice de l'activité professionnelle de ventes volontaires de meubles aux enchères publiques et attestent la préparation du titulaire à cet exercice, dans un Etat membre ou un Etat partie à l'accord sur l'Espace économique européen qui ne réglemente pas l'accès à cette profession ou son exercice ;
3° Soit que ces diplômes ou titres attestent la préparation de leur titulaire à l'exercice de l'activité professionnelle de ventes volontaires de meubles aux enchères publiques et que le titulaire justifie en outre, dans un Etat membre ou un Etat partie à l'accord sur l'Espace économique européen qui ne réglemente pas l'accès à cette profession ou son exercice, d'un exercice à plein temps de la profession pendant deux ans au moins au cours des dix années précédentes ou pendant une période équivalente en cas d'exercice à temps partiel, sous réserve que cet exercice soit attesté par l'autorité compétente de cet Etat.
Les diplômes ou titres mentionnés au présent article doivent avoir été délivrés soit par l'autorité compétente d'un Etat membre ou d'un Etat partie à l'accord sur l'Espace économique européen en sanctionnant une formation acquise de façon prépondérante dans un Etat membre ou un Etat partie ou dans un Etat tiers dans des établissements d'enseignement qui dispensent une formation conforme aux dispositions législatives, réglementaires ou administratives de cet Etat membre ou partie, soit par un Etat tiers, à condition que soit fournie une attestation, émanant de l'autorité compétente de l'Etat membre ou de l'Etat partie qui a reconnu le ou les diplômes ou titres, certifiant que le titulaire de ce ou ces diplômes ou titres a une expérience professionnelle de trois ans au moins dans cet Etat.
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Article R321-66
Les personnes satisfaisant aux conditions prévues aux articles R. 321-56 et R. 321-65 et souhaitant s'établir en France adressent au conseil des ventes volontaires de meubles aux enchères publiques leur demande de reconnaissance de qualification professionnelle par lettre recommandée avec demande d'avis de réception ou par tout autre moyen équivalent. La demande est accompagnée d'un dossier dont la composition est fixée par arrêté du garde des sceaux, ministre de la justice.
Le conseil accuse réception du dossier du demandeur dans un délai d'un mois et l'informe, le cas échéant, de tout document manquant. Il se prononce par décision motivée au plus tard dans un délai de trois mois à compter de la présentation du dossier complet de l'intéressé.
La décision du conseil est notifiée par lettre recommandée avec demande d'avis de réception. La notification indique le délai et les modalités du recours ouvert à l'encontre de cette décision.
La décision du conseil peut faire l'objet d'un recours dans les conditions prévues aux articles R. 321-50 à R. 321-55.
Article R321-67
Lorsque la formation reçue par le demandeur porte sur des matières substantiellement différentes de celles qui figurent aux programmes des diplômes mentionnés au 3° de l'article R. 321-18 et de l'examen professionnel mentionné à l'article R. 321-22, ou lorsque la durée de la formation dont se prévaut le demandeur est inférieure d'au moins un an à celle requise par les dispositions de l'article R. 321-18, l'intéressé subit, à son choix, une épreuve d'aptitude devant le jury prévu à l'article R. 321-23 ou un stage d'adaptation dont la durée ne peut excéder trois ans.
Le programme et les modalités d'organisation de l'épreuve d'aptitude et du stage d'adaptation sont fixés par arrêté du garde des sceaux, ministre de la justice.
Le conseil précise celles des matières du programme mentionné à l'alinéa précédent sur lesquelles le demandeur est interrogé ou la durée de son stage, compte tenu de sa formation et de son expérience professionnelle. Il peut dispenser le demandeur de ces mesures s'il estime que les connaissances que celui-ci a acquises au cours de son expérience professionnelle sont de nature à couvrir, en tout ou partie, la différence substantielle de formation constatée.
Le conseil notifie aux candidats les résultats de l'épreuve d'aptitude ou de l'évaluation du stage.
Section 4 : Des experts agréés par le Conseil des ventes volontaires de meubles aux enchères publiques.
Article R321-68
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Le Conseil des ventes volontaires de meubles aux enchères publiques arrête la liste des spécialités dont peuvent se prévaloir les experts agréés.
Article R321-69
L'expert qui sollicite l'agrément en fait la demande au conseil par lettre recommandée avec demande d'avis de réception.
La demande est accompagnée des pièces suivantes :
1° Un document justifiant l'identité du demandeur ;
2° Une copie des diplômes dont il se prévaut et les documents justifiant de l'expérience professionnelle acquise dans les spécialités pour lesquelles l'agrément est sollicité ;
3° Le bulletin numéro 3 du casier judiciaire.
Article R321-70
Le Conseil des ventes volontaires de meubles aux enchères publiques dispose d'un délai de quatre mois à compter de la réception de l'ensemble des pièces mentionnées à l'article R. 321-69 pour se prononcer sur la demande. A défaut de décision expresse dans ce délai, la demande est réputée rejetée.
La décision est notifiée aux personnes qui ont sollicité l'agrément, par lettre recommandée avec demande d'avis de réception.
La notification indique le délai et les modalités du recours ouvert à l'encontre de cette décision.
Article R321-71
Dans un délai de trente jours à compter de la délivrance de leur agrément, les experts agréés justifient d'une assurance garantissant leur responsabilité professionnelle auprès du Conseil des ventes volontaires de meubles aux enchères publiques.
Ils font connaître au conseil, dans un délai de trente jours à compter de la date à laquelle elles se produisent, les modifications de fait ou de droit susceptibles d'affecter leur capacité d'exercer, notamment leur cessation temporaire ou définitive d'activité ainsi que tout changement dans la situation déclarée en application de l'article R. 321-69. Ces notifications sont accompagnées des justificatifs nécessaires.
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Chaque année, dans un délai de trente jours à compter de l'expiration de la précédente garantie, les experts agréés transmettent au conseil le justificatif du renouvellement de l'assurance garantissant leur responsabilité professionnelle.
L'assureur informe le conseil, dans les trente jours, de la résiliation du contrat.
Article R321-72
En cas de manquement aux obligations prévues par l'article R. 321-71, le conseil peut décider le retrait de l'agrément d'un expert.
La décision de retrait est notifiée à l'expert dans les conditions prévues à l'article R. 321-70.
Article R321-73
Les décisions prises par le conseil en application de la présente section peuvent être contestées dans les conditions prévues par les articles R. 321-50 à R. 321-55.
Section 5 : Dispositions diverses.
Article R321-74
Le droit de préemption de l'Etat en cas de vente volontaire de meubles aux enchères publiques est régi par les articles 61 à 65 du décret n° 2001-650 du 19 juillet 2001 pris en application des articles L. 321-1 à L. 321-38 du code de commerce et relatif aux ventes volontaires de meubles aux enchères publiques.
Chapitre II : Des autres ventes aux enchères.
Article R322-1
Les salles de ventes publiques de marchandises aux enchères et en gros, prévues par l'article L. 322-12, peuvent être ouvertes par une personne physique, par une société commerciale ou industrielle, ou par un établissement de crédit, en vertu d'une autorisation donnée par un arrêté du préfet, après avis de la chambre de commerce et d'industrie et du tribunal du commerce.
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Les salles de ventes peuvent être formées spécialement pour une ou plusieurs espèces de marchandises.
Article R322-2
Toute personne qui demande l'autorisation d'ouvrir une salle de ventes publiques justifie de ressources en rapport avec l'importance de l'établissement projeté.
Article R322-3
Les propriétaires ou exploitants sont responsables de la garde et de la conservation des marchandises qui leur sont confiées, sauf les avaries et déchets naturels provenant de la nature et du conditionnement des marchandises ou de cas de force majeure.
Article R322-4
Les exploitants de salles de ventes peuvent se charger de toute opération ayant pour objet l'acheminement des marchandises dans la salle de vente.
Ils peuvent également se charger de faire assurer les marchandises dont ils sont détenteurs, au moyen, soit de polices collectives, soit de polices spéciales, suivant les ordres des intéressés.
Ils peuvent, en outre, être autorisés à se charger de toutes opérations ayant pour objet de faciliter les relations de l'établissement avec tout intervenant, qu'il soit négociant ou transporteur.
Article R322-5
Il est interdit aux exploitants de salles de ventes de se livrer directement ou indirectement, pour leur propre compte ou pour le compte d'autrui, à aucun commerce ou spéculation ayant pour objet les marchandises.
Article R322-6
Les exploitants des salles de ventes sont tenus de mettre les salles de ventes, sans préférence ni faveur, à la disposition de toute personne qui veut opérer le magasinage ou la vente de ses marchandises, dans les termes des articles L. 322-8 et suivants.
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Article R322-7
Les salles de ventes publiques sont soumises aux mesures générales de police concernant les lieux publics affectés au commerce, sans préjudice des droits du service des douanes, lorsqu'ils sont établis dans des locaux placés sous les régimes des entrepôts douaniers prévus par le règlement (CEE) n° 2913/92 du Conseil du 12 octobre 1992 établissant le code des douanes communautaire, ensemble le règlement (CEE) n° 2454/93 de la Commission du 2 juillet 1993 fixant certaines de ses dispositions d'application, et le régime de l'entrepôt fiscal prévu par le code général des impôts.
Article R322-8
Les tarifs établis par les exploitants des salles de ventes, afin de fixer la rétribution due pour le magasinage, la manutention, la location de la salle, la vente et généralement pour les divers services qui peuvent être rendus au public, sont transmis avant l'ouverture des établissements, au préfet et à la chambre de commerce et d'industrie et au tribunal de commerce consultés sur la demande d'autorisation.
Tous les changements apportés aux tarifs doivent être d'avance annoncés par des affiches et communiqués aux préfets et à la chambre de commerce et d'industrie et au tribunal de commerce consultés sur la demande d'autorisation. Si ces changements ont pour objet de relever les tarifs, ils ne deviennent exécutoires que trois mois après leur annonce et leur communication.
Article R322-9
Chaque établissement adopte un règlement intérieur qui est communiqué à l'avance, ainsi que tous les changements qui y seraient apportés, conformément aux dispositions de l'article R. 322-8.
Article R322-10
Les dispositions législatives et réglementaires, le tarif et le règlement intérieur sont et demeurent affichés à la principale porte et dans l'endroit le plus apparent de chaque établissement.
Article R322-11
En cas de contravention ou d'abus commis par les exploitants des salles de ventes de nature à porter un grave préjudice à l'intérêt du commerce, l'autorisation accordée peut être révoquée par un acte rendu dans la même forme que cette autorisation, et les parties entendues.
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Article R322-12
Les propriétaires ou exploitants de salles de ventes publiques ne peuvent céder leur établissement sans une autorisation délivrée dans les formes et par la même autorité que pour l'autorisation d'origine.
Article R322-13
Les dispositions des articles R. 322-3 et R. 322-6 sont applicables aux ventes prévues par les articles L. 322-14 et L. 322-15.
Article R322-14
La décision judiciaire qui a autorisé ou ordonné la vente en vertu des articles L. 322-14 et L. 322-15 est insérée au procès-verbal de la vente.
Article R322-15
Le minimum de la valeur des lots est fixé à 15 euros pour les ventes de marchandises de toute espèce, ordonnées ou autorisées dans les cas prévus par les articles L. 322-14 et L. 322-15.
Ce minimum peut être abaissé par le tribunal ou le juge qui ordonne ou autorise la vente.
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Partie réglementaire
LIVRE III : De certaines formes de ventes et des clauses d'exclusivité.
TITRE III : Des clauses d'exclusivité.
Article R330-1
Le document prévu au premier alinéa de l'article L. 330-3 contient les informations suivantes :
1° L'adresse du siège de l'entreprise et la nature de ses activités avec l'indication de sa forme juridique et de l'identité du chef d'entreprise s'il s'agit d'une personne physique ou des dirigeants s'il s'agit d'une personne morale ; le cas échéant, le montant du capital ;
2° Les mentions visées aux 1° et 2° de l'article R. 123-237 ou le numéro d'inscription au répertoire des métiers ainsi que la date et le numéro d'enregistrement ou du dépôt de la marque et, dans le cas où la marque qui doit faire l'objet du contrat a été acquise à la suite d'une cession ou d'une licence, la date et le numéro de l'inscription correspondante au registre national des marques avec, pour les contrats de licence, l'indication de la durée pour laquelle la licence a été consentie ;
3° La ou les domiciliations bancaires de l'entreprise. Cette information peut être limitée aux cinq principales domiciliations bancaires ;
4° La date de la création de l'entreprise avec un rappel des principales étapes de son évolution, y compris celle du réseau d'exploitants, s'il y a lieu, ainsi que toutes indications permettant d'apprécier l'expérience professionnelle acquise par l'exploitant ou par les dirigeants.
Les informations mentionnées à l'alinéa précédent peuvent ne porter que sur les cinq dernières années qui précèdent celle de la remise du document. Elles doivent être complétées par une présentation de l'état général et local du marché des produits ou services devant faire l'objet du contrat et des perspectives de développement de ce marché.
Doivent être annexés à cette partie du document les comptes annuels des deux derniers exercices ou, pour les sociétés dont les titres financiers sont admis aux négociations sur un marché réglementé, les rapports établis au titre des deux derniers exercices en application du III de l'article L. 451-1-2 du code monétaire et financier ;
5° Une présentation du réseau d'exploitants qui comporte :
a) La liste des entreprises qui en font partie avec l'indication pour chacune d'elles du mode
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d'exploitation convenu ;
b) L'adresse des entreprises établies en France avec lesquelles la personne qui propose le contrat est liée par des contrats de même nature que celui dont la conclusion est envisagée ; la date de conclusion ou de renouvellement de ces contrats est précisée ;
Lorsque le réseau compte plus de cinquante exploitants, les informations mentionnées à l'alinéa précédent ne sont exigées que pour les cinquante entreprises les plus proches du lieu de l'exploitation envisagée ;
c) Le nombre d'entreprises qui, étant liées au réseau par des contrats de même nature que celui dont la conclusion est envisagée, ont cessé de faire partie du réseau au cours de l'année précédant celle de la délivrance du document. Le document précise si le contrat est venu à expiration ou s'il a été résilié ou annulé ;
d) S'il y a lieu, la présence, dans la zone d'activité de l'implantation prévue par le contrat proposé, de tout établissement dans lequel sont offerts, avec l'accord exprès de la personne qui propose le contrat, les produits ou services faisant l'objet de celui-ci ;
6° L'indication de la durée du contrat proposé, des conditions de renouvellement, de résiliation et de cession, ainsi que le champ des exclusivités.
Le document précise, en outre, la nature et le montant des dépenses et investissements spécifiques à l'enseigne ou à la marque que la personne destinataire du projet de contrat engage avant de commencer l'exploitation.
Article R330-2
Est puni des peines d'amende prévues par le 5° de l'article 131-13 du code pénal pour les contraventions de la cinquième classe le fait de mettre à la disposition d'une personne un nom commercial, une marque ou une enseigne en exigeant d'elle un engagement d'exclusivité ou de quasi-exclusivité pour l'exercice de son activité sans lui avoir communiqué, vingt jours au moins avant la signature du contrat, le document d'information et le projet de contrat mentionnés à l'article L. 330-3.
En cas de récidive, les peines d'amende prévues le 5° de l'article 131-13 du code pénal pour les contraventions de la cinquième classe commises en récidive sont applicables.
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Partie réglementaire
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE Ier : Dispositions générales.
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Partie réglementaire
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE II : Des pratiques anticoncurrentielles.
Article R420-1
Les accords présentés au ministre chargé de l'économie, en application du II de l'article L. 420-4, sont accompagnés des informations suivantes :
1° L'identification détaillée des entreprises parties à l'accord ;
2° Les objectifs fixés par l'accord ;
3° La délimitation du marché concerné par l'accord ;
4° Les produits, biens ou services concernés ;
5° Les produits, biens ou services substituables ;
6° Les parts de marché détenues par chaque partie à l'accord (en volume et en chiffre d'affaires) ;
7° L'impact sur la concurrence.
Si les entreprises estiment que certains des documents inclus dans ce dossier présentent un caractère confidentiel, elles peuvent porter sur ce document la mention : " secret des affaires ". Dans ce cas, le ministre chargé de l'économie leur demande de lui indiquer les informations dont elles souhaitent qu'il ne soit pas fait mention dans le décret et dans l'avis de l'Autorité de la concurrence.
Article R420-2
Un mois avant leur transmission à l'Autorité de la concurrence, les projets de décret prévus au II de l'article L. 420-4 doivent faire l'objet d'une publication au Bulletin officiel de la concurrence, de la consommation et de la répression des fraudes. Les observations éventuelles des personnes intéressées, recueillies dans ce délai, sont communiquées à l'Autorité de la concurrence.
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Article R420-3
Pour l'application de l'article L. 420-7, le siège et le ressort des juridictions commerciales compétentes en métropole et dans les départements d'outre-mer sont fixés conformément aux tableaux de l'annexe 4-2 du présent livre.
Article R420-4
Pour l'application de l'article L. 420-7, la liste des tribunaux de grande instance compétents en métropole et dans les départements d'outre-mer est fixée conformément aux tableaux de l'annexe 4-1 du présent livre.
Article R420-5
Pour l'application de la deuxième phrase de l'article L. 420-7, la cour d'appel de Paris est compétente.
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Partie réglementaire
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE III : De la concentration économique.
Article R430-2
Le dossier de notification mentionné à l'article L. 430-3 comprend les éléments énumérés aux annexes 4-3 à 4-5 du présent livre. Il est adressé en quatre exemplaires.
Lorsque l'Autorité de la concurrence constate que le dossier est incomplet ou que certains de ses éléments ne sont pas conformes aux définitions retenues dans les annexes susmentionnées, notamment en ce qui concerne la délimitation des marchés concernés, elle demande que le dossier soit complété ou rectifié.
La notification complète fait l'objet d'un accusé de réception.
Article R430-3
Si la Commission européenne décide, en application de l'article 9 du règlement (CE) n° 139 / 2004 du Conseil du 20 janvier 2004 relatif au contrôle des concentrations entre entreprises, de renvoyer aux autorités françaises tout ou partie d'une concentration de dimension communautaire, les entreprises concernées communiquent sans délai à l'Autorité de la concurrence trois exemplaires du dossier de notification de l'opération qu'elles ont adressé à la Commission.
Article R430-4
Le communiqué prévu au troisième alinéa de l'article L. 430-3 contient notamment les éléments suivants :
1° Les noms des entreprises concernées et des groupes auxquels elles appartiennent ;
2° La nature de l'opération ;
3° Les secteurs économiques concernés ;
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4° Les éléments renvoyés, dans le cas d'un renvoi partiel d'une opération de dimension communautaire par la Commission européenne ;
5° Le délai dans lequel les tiers intéressés sont invités à faire connaître leurs observations ;
6° Le résumé non confidentiel de l'opération fourni par les parties.
Ce communiqué est rendu public dans les cinq jours ouvrables suivant la date de réception du dossier de notification ou la date à laquelle l'Autorité de la concurrence est informée de la décision de renvoi de la Commission européenne.
Article R430-5
Lorsqu'une concentration est réalisée par achat ou échange de titres sur un marché réglementé, sa réalisation effective, au sens de l'article L. 430-4, intervient lorsque sont exercés les droits attachés aux titres.L'absence de décision de l'Autorité de la concurrence ne fait pas obstacle au transfert desdits titres.
Article R430-6
Lorsqu'une décision a été prise en application des articles L. 430-5, L. 430-7, L. 430-7-1, L. 430-8 ou L. 430-9, l'Autorité de la concurrence ou, le cas échéant, le ministre chargé de l'économie en rendent public le sens dans les cinq jours ouvrables suivant la décision.
Article R430-7
Les décisions mentionnées à l'article L. 430-5 sont notifiées à l'auteur ou aux auteurs de la notification de l'opération de concentration mentionnée à l'article L. 430-3, ainsi qu'au ministre chargé de l'économie.
Lorsqu'elles reçoivent notification des décisions prises en application des articles L. 430-5, L. 430-7, L. 430-7-1, L. 430-8 et L. 430-9, les entreprises concernées disposent d'un délai de quinze jours pour indiquer à l'Autorité de la concurrence ou, le cas échéant, au ministre chargé de l'économie les mentions qu'elles considèrent comme relevant du secret des affaires.
Article D430-8
Les décisions de l'Autorité de la concurrence et du ministre chargé de l'économie relatives aux opérations de concentration sont rendues publiques. L'Autorité de la concurrence assure la publicité de ses décisions par une diffusion sur son site internet. La liste des opérations réputées avoir fait l'objet d'une décision d'autorisation est également diffusée sur ce site internet . La publicité des décisions motivées du ministre chargé de l'économie est assurée par une publication dans l'édition électronique du Bulletin officiel de la concurrence, de la consommation et de la répression des
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fraudes. Les décisions de l'Autorité de la concurrence et du ministre sont publiées dans le respect de l'intérêt légitime des parties qui procèdent à la notification et de celui des personnes citées à ce que leurs secrets d'affaires ne soient pas divulgués.
Article R430-9
En cas d'annulation totale ou partielle d'une décision prise par l'Autorité de la concurrence ou par le ministre chargé de l'économie sur le fondement des articles L. 430-5, L. 430-7, L. 430-7-1, L. 430-8 ou L. 430-9 et s'il y a lieu à réexamen du dossier, les entreprises concernées qui ont procédé à la notification soumettent une notification actualisée dans un délai de deux mois à compter de la date de notification de la décision du Conseil d'Etat.
Article R430-10
Les sanctions pécuniaires prononcées en application de l'article L. 430-8 sont recouvrées comme les créances de l'Etat étrangères à l'impôt et au domaine.
Les astreintes prononcées par l'Autorité de la concurrence en application du même article sont recouvrées dans les mêmes conditions.
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Partie réglementaire
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE IV : De la transparence, des pratiques restrictives de concurrence et d'autres pratiques prohibées.
Article D440-1
La commission d'examen des pratiques commerciales instituée par l'article L. 440-1 est placée auprès du ministre chargé de l'économie.
Article D440-2
La commission d'examen des pratiques commerciales est composée d'un député et d'un sénateur ainsi que de vingt-deux membres titulaires et quatorze membres suppléants répartis de la manière suivante :
1° Trois membres issus des juridictions de l'ordre administratif ou judiciaire, parmi lesquels est nommé le vice-président de la commission si le président n'est pas magistrat. Le vice-président supplée le président dans toutes ses fonctions ;
2° Sept membres représentant des secteurs de la production et de la transformation agricole et halieutique ainsi qu'industrielle et artisanale et des transformateurs, ou leurs suppléants ;
3° Sept membres représentant les grossistes et distributeurs, choisis au sein des organisations professionnelles ou des entreprises, ou leurs suppléants ;
4° Deux personnalités qualifiées en matière de problèmes relatifs aux relations industrie-commerce ;
5° Trois représentants de l'administration : le directeur général de la concurrence, de la consommation et de la répression des fraudes, le directeur général de la compétitivité, de l'industrie et des services, ou leurs représentants, et le directeur général des politiques agricole, agroalimentaire et des territoires, ou son représentant ;
Les membres mentionnés aux 1° à 4° sont nommés pour trois ans par arrêté conjoint du ministre chargé de l'économie et du ministre chargé du commerce.
Article D440-3
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La nomination de magistrats de l'ordre administratif et judiciaire, au sein de la commission d'examen des pratiques commerciales, est respectivement faite sur proposition du vice-président du Conseil d'Etat et du garde des sceaux, ministre de la justice.
Article D440-4
La commission d'examen des pratiques commerciales lorsqu'elle examine un domaine d'activité particulier peut appeler à siéger avec voix consultative un représentant des fournisseurs et un représentant des distributeurs du domaine d'activité considéré.
Article D440-5
Les chambres d'examen mises en place au sein de la commission d'examen des pratiques commerciales sont présidées par un magistrat et comprennent un nombre égal de représentants des producteurs et des distributeurs.
Article D440-6
Le président de la commission d'examen des pratiques commerciales peut désigner un ou plusieurs rapporteurs en raison de leur compétence.
Le secrétariat de la commission est assuré par la direction générale de la concurrence, de la consommation et de la répression des fraudes.
Article D440-7
La commission d'examen des pratiques commerciales établit un règlement intérieur qui fixe ses modalités de fonctionnement.
Ce règlement est approuvé par le ministre chargé de l'économie.
Article D440-8
La commission d'examen des pratiques commerciales peut décider de publier des avis avec l'accord de l'auteur de la demande.
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Article D440-9
Les séances de la commission d'examen des pratiques commerciales ne sont pas publiques.
Les enquêteurs mentionnés au sixième alinéa de l'article L. 440-1 peuvent assister aux séances de la commission lorsque sont examinées les questions à l'instruction desquelles ils ont, à la demande de la commission, apporté leur concours.
Article D440-10
La commission d'examen des pratiques commerciales ne peut valablement délibérer qu'en présence de la moitié de ses membres plus un.
Article D440-11
Le président et le vice-président veillent à assurer l'anonymat de tous documents, rapports d'enquête et informations recueillis avant leur communication à la commission d'examen des pratiques commerciales.
A cette fin, le secrétariat de la commission supprime toute mention nominative ou, le cas échéant, retire les pièces rendant identifiable une personne ou une entreprise.
Article D440-12
Les avis et recommandations de la commission d'examen des pratiques commerciales et des chambres appelées à se prononcer sont adoptés à la majorité de leurs membres présents ; en cas de partage des voix, le président a voix prépondérante.
Article D440-13
Les crédits nécessaires à la commission d'examen des pratiques commerciales pour l'accomplissement de sa mission sont inscrits au budget du ministère chargé de l'économie.
Chapitre Ier : De la transparence.
Article R441-1
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Les infractions aux dispositions des arrêtés pris en application du deuxième alinéa de l'article L. 441-2 sont punies de l'amende prévue par le 5° de l'article 131-13 du code pénal pour les contraventions de la cinquième classe.
La contravention commise en cas de récidive est punie de l'amende prévue par le 5° de l'article 131-13 du code pénal pour les contraventions de la cinquième classe commises en récidive.
Article D441-2
Les produits agricoles auxquels s'appliquent les dispositions de l'article L. 441-2-1 sont les suivants :
Fruits et légumes, à l'exception des pommes de terre de conservation, destinés à être vendus à l'état frais au consommateur ;
Viandes fraîches, congelées ou surgelées de volailles et de lapins ;
OEufs ;
Miels.
Article R441-3
Pour l'application du deuxième alinéa de l'article L. 441-3, les originaux ou les copies des factures sont conservés pendant un délai de trois ans à compter de la vente ou de la prestation de service.
Article D441-4
Pour l'application de l'article L. 441-6-1, les sociétés publient dans le rapport de gestion mentionné à l'article L. 232-1 la décomposition à la clôture des deux derniers exercices du solde des dettes à l'égard des fournisseurs par date d'échéance.
Chapitre II : Des pratiques restrictives de concurrence.
Article R442-1
Lorsque le ministre chargé de l'économie ou le président de l'Autorité de la concurrence exerce l'action prévue par l'article L. 442-6 et les voies de recours y afférentes, il est dispensé de représentation par un avocat ou un avoué.
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Article R442-2
Les infractions aux dispositions des articles L. 442-7 et L. 442-8 sont punies de l'amende prévue par le 5° de l'article 131-13 du code pénal pour les contraventions de la cinquième classe.
La contravention commise en cas de récidive est punie de l'amende prévue par le 5° de l'article 131-13 du code pénal pour les contraventions de la cinquième classe commises en récidive.
Article D442-3
Pour l'application de l'article L. 442-6, le siège et le ressort des juridictions commerciales compétentes en métropole et dans les départements d'outre-mer sont fixés conformément au tableau de l'annexe 4-2-1 du présent livre. La cour d'appel compétente pour connaître des décisions rendues par ces juridictions est celle de Paris.
Article D442-4
Pour l'application de l'article L. 442-6, le siège et le ressort des tribunaux de grande instance compétents en métropole et dans les départements d'outre-mer sont fixés conformément au tableau de l'annexe 4-2-2 du présent livre. La cour d'appel compétente pour connaître des décisions rendues par ces juridictions est celle de Paris.
Chapitre III : Autres pratiques prohibées.
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Partie réglementaire
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE V : Des pouvoirs d'enquête.
Article R450-1
Les procès-verbaux prévus à l'article L. 450-2 énoncent la nature, la date et le lieu des constatations ou des contrôles effectués. Ils sont signés d'un agent mentionné à l'article L. 450-1 et de la personne concernée par les investigations. En cas de refus de celle-ci, mention en est faite au procès-verbal.
Dans le cas prévu à l'article L. 450-1 où les agents des services d'instruction de l'Autorité de la concurrence sont assistés d'un agent d'une autorité de concurrence d'un autre Etat membre de la Communauté européenne, les procès-verbaux en font mention. Ils indiquent l'identité de cet agent et la date de la décision l'autorisant à assister les agents des services d'instruction de l'Autorité.
Article R450-2
L'ordonnance mentionnée à l'article L. 450-4 indique les voies et délais de recours dont dispose l'occupant des lieux ou son représentant.
Les procès-verbaux prévus à l'article L. 450-4 relatent le déroulement de la visite et consignent les constatations effectuées. Ils sont dressés sur-le-champ. Ils comportent l'inventaire des pièces et documents saisis.
Ces procès-verbaux sont signés par les agents mentionnés à l'article L. 450-1, par l'officier de police judiciaire chargé d'assister aux opérations ainsi que, selon le cas, par l'occupant des lieux ou son représentant ou les deux témoins requis conformément au septième alinéa de l'article L. 450-4.
Une copie du procès-verbal est remise à l'occupant des lieux ou à son représentant. En l'absence de l'occupant des lieux ou de son représentant, la copie du procès-verbal est adressée après la visite au responsable de l'entreprise ou de l'organisme concerné par lettre recommandée avec demande d'avis de réception. Les pièces et documents saisis ne peuvent être opposés aux intéressés qu'après qu'ils ont été mis en mesure d'en prendre connaissance.
Article D450-3
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I.-Le ministre chargé de l'économie informe le rapporteur général de l'Autorité de la concurrence des investigations qu'il souhaite entreprendre sur des faits susceptibles de relever des articles L. 420-1, L. 420-2 et L. 420-5. Il lui transmet les documents en sa possession justifiant le déclenchement d'une enquête. Le rapporteur général peut prendre la direction de ces investigations dans le délai d'un mois à compter de la réception des documents susmentionnés, auquel cas il en informe le ministre. Dans l'hypothèse où le rapporteur général écarte cette possibilité ou n'a pas informé, dans un délai de trente-cinq jours suivant la réception des documents, le ministre des suites données, le ministre chargé de l'économie peut faire réaliser les investigations par ses services. II.-Le ministre chargé de l'économie informe le rapporteur général de l'Autorité de la concurrence du résultat des investigations auxquelles il aura fait procéder et lui transmet l'ensemble des pièces de la procédure. Le rapporteur général peut proposer à l'Autorité de la concurrence de se saisir d'office des résultats de l'enquête ; l'Autorité dispose d'un délai de deux mois pour se prononcer à compter de la réception par le rapporteur général des pièces de la procédure. Dans l'hypothèse où le rapporteur général écarte cette possibilité ou si l'Autorité ne donne pas suite à sa proposition dans le délai mentionné ci-dessus, le rapporteur général en informe le ministre.A défaut de notification par le rapporteur général de la décision de l'Autorité dans un délai de soixante-cinq jours suivant la transmission des pièces de la procédure, le ministre chargé de l'économie peut prendre les mesures prévues aux articles L. 462-5 et L. 464-9, ou classer l'affaire.
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Partie réglementaire
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE VI : De l'Autorité de la concurrence.
Chapitre Ier : De l'organisation.
Article R461-1
Le président de l'Autorité de la concurrence la représente en justice et dans tous les actes de la vie civile. Dans ce cadre, il signe les actes et pièces au nom de l'Autorité. Le président de l'Autorité de la concurrence a qualité pour agir en demande et en défense et présenter des observations devant toute juridiction au nom de cette Autorité.
Le président de l'Autorité de la concurrence peut, dans les cas prévus par le livre IV, déléguer certaines de ses attributions à un vice-président.
Le président de l'Autorité de la concurrence est suppléé, en cas d'absence ou d'empêchement, par un vice-président. En cas de vacance du poste de président, le vice-président dont la nomination dans cette fonction est la plus ancienne assure l'intérim.
Article R461-2
A l'exception des dépenses relatives aux services d'instruction dont l'ordonnancement est délégué au rapporteur général, le président de l'Autorité de la concurrence peut déléguer sa signature à tout agent d'encadrement pour engager les dépenses et signer les marchés et les contrats. Il peut également déléguer le soin de représenter l'Autorité devant toute juridiction.
Des régies de recettes et de dépenses peuvent être créées auprès du conseil par arrêté du ministre chargé de l'économie, des finances et de l'industrie dans les conditions prévues par les articles R. 1617-1 et suivants du code général des collectivités territoriales.
Article R461-3
Le rapporteur général ainsi que le ou les rapporteurs généraux adjoints sont nommés pour quatre ans, parmi les membres du conseil d'Etat, les magistrats, les fonctionnaires de catégorie A et les
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personnes pouvant justifier d'une expérience d'au moins cinq ans dans le domaine du droit de la concurrence et titulaires d'un des diplômes permettant d'accéder à un corps de catégorie A. Ils peuvent être renouvelés une fois dans leurs fonctions.
Le rapporteur général anime et contrôle l'activité des rapporteurs. Il veille, notamment :
- à ce que les rapporteurs effectuent des actes tendant à la recherche, à la constatation ou à la sanction des faits concernés par l'instruction des affaires dont il leur a confié l'examen ;
- à la qualité des notifications de griefs, des rapports et autres actes d'instruction effectués par les rapporteurs.
Il peut déléguer à un ou des rapporteurs généraux adjoints tout ou partie des attributions qu'il détient conformément au présent titre.
Il peut aussi déléguer sa signature à un rapporteur général adjoint ou à un agent d'encadrement.
En cas de vacance du poste de rapporteur général, un intérim est assuré par le rapporteur général adjoint le plus ancien dans la fonction.
Article R461-4
Les rapporteurs permanents sont nommés parmi les membres du conseil d'Etat, les magistrats, les fonctionnaires de catégorie A, les agents contractuels de l'Etat de niveau équivalent ou les personnalités ayant une compétence économique ou juridique et titulaires d'un des diplômes permettant d'accéder à un corps de catégorie A.
Article R461-5
Le rapporteur général peut faire appel à des rapporteurs extérieurs choisis parmi les membres du Conseil d'Etat, les magistrats, les fonctionnaires de catégorie A ou les agents contractuels de l'Etat de niveau équivalent en activité ou ayant fait valoir leurs droits à la retraite.
Article R461-6
Le président de l'Autorité de la concurrence fixe le nombre et la composition des sections ; il affecte les membres de l'Autorité de la concurrence à chacune d'entre elles.
Chaque section est présidée par le président de l'Autorité de la concurrence ou par l'un des vice-présidents ou, lorsque cela est nécessaire pour permettre un nouvel examen d'une affaire dans
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une formation différente, par le membre le plus ancien de la section. Elle comprend au moins deux autres membres. Les vice-présidents peuvent se suppléer en cas d'absence ou d'empêchement de l'un d'entre eux.
Article R461-7
Une section peut à tout moment décider le renvoi d'une affaire en formation plénière.
Article R461-8
L'Autorité de la concurrence établit son règlement intérieur, qui fixe notamment les conditions de son fonctionnement administratif. Ce règlement intérieur est publié au Journal officiel de la République française.
L'organisation de l'Autorité de la concurrence est fixée par décision de son président.
Article R461-9
I. - Le conseiller auditeur exerce ses fonctions pour une durée de cinq ans. Son mandat est renouvelable une fois.
II. - Le conseiller auditeur peut intervenir à la demande d'une partie. Il peut également appeler l'attention du rapporteur général sur le bon déroulement de la procédure, s'il estime qu'une affaire soulève une question relative au respect des droits des parties.
Les parties mises en cause et saisissantes peuvent présenter des observations au conseiller auditeur sur le déroulement de la procédure d'instruction les concernant dans les affaires donnant lieu à une notification de griefs, pour des faits ou des actes intervenus à compter de la réception de la notification de griefs et jusqu'à la réception de la convocation à la séance de l'Autorité.
Le conseiller auditeur recueille, le cas échéant, les observations complémentaires des parties ainsi que celles du rapporteur général sur le déroulement de la procédure. Il peut proposer des mesures destinées à améliorer l'exercice de leurs droits par les parties.
Il conclut ses interventions en rédigeant un rapport remis au président de l'Autorité au plus tard dix jours ouvrés avant la séance. Une copie est adressée au rapporteur général et aux parties concernées.
Le président de l'Autorité de la concurrence peut inviter le conseiller auditeur à assister à la séance et à y présenter son rapport.
Lorsque le conseiller auditeur décide d'appeler l'attention du rapporteur général sur le bon déroulement de la procédure dans une affaire, conformément au premier alinéa ci-dessus, il verse ses observations au dossier.
III. - Pour l'exercice de ses fonctions, le conseiller auditeur bénéficie du concours des services
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d'instruction de l'Autorité. Il est habilité à demander la communication des pièces du dossier dont il est saisi auprès du rapporteur général de l'Autorité. La confidentialité des documents et le secret des affaires ne lui sont pas opposables.
IV. - Le conseiller auditeur remet chaque année au président de l'Autorité un rapport sur son activité. Ce rapport est joint au rapport public de l'Autorité.
Chapitre II : Des attributions.
Article R462-1
Les avis rendus en application des articles L. 410-2 et L. 462-2 sont publiés avec les textes auxquels ils se rapportent.
Les avis rendus en application de l'article L. 462-1 et destinés à une commission parlementaire ou au Gouvernement peuvent être publiés par leur destinataire ou, avec l'accord de ce dernier, par l'Autorité de la concurrence. L'Autorité de la concurrence peut publier les avis demandés par d'autres personnes.
Article R462-2
Délégation permanente est donnée au ministre chargé de l'économie pour consulter, au nom du Gouvernement, l'Autorité de la concurrence de sa propre initiative ou à la demande du ministre dont relève le secteur économique concerné, en application des articles L. 410-2, L. 462-1 et L. 462-2.
Article R462-3
La procédure contradictoire prévue à l'article L. 462-3 comporte la notification d'un rapport effectuée par le rapporteur général aux parties en cause devant la juridiction, au commissaire du Gouvernement auprès de l'Autorité de la concurrence et, le cas échéant, aux autres personnes dont les agissements ont été examinés dans le rapport au regard des articles 81 et 82 du traité instituant la Communauté européenne et des articles L. 420-1, L. 420-2 et L. 420-5. Le rapporteur général fixe aux destinataires un délai de réponse, qui ne peut être inférieur à un mois à compter de la notification du rapport, pour consulter le dossier et présenter des observations écrites.
L'avis de l'Autorité de la concurrence rendu à la juridiction qui l'a consultée est communiqué aux personnes mentionnées au premier alinéa.
Article R462-4
Les décisions de l'Autorité prévues à l'article L. 464-8 sont annexées au rapport d'activité prévu à l'article L. 461-5.
Chapitre III : De la procédure.
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Section 1 : De la saisine.
Article R463-1
La saisine de l'Autorité de la concurrence fait l'objet d'une lettre recommandée avec demande d'avis de réception ou d'un dépôt au bureau de la procédure, en quatre exemplaires. Elle peut être accompagnée de pièces annexes.
La saisine précise :
-son objet et les dispositions du droit national ou du droit communautaire de la concurrence sur lesquelles la partie saisissante fonde sa demande ;
-les nom, prénoms, dénomination ou forme sociale, profession ou activité, et adresse du domicile ou du siège social du demandeur, ainsi que, le cas échéant, ses statuts et le mandat donné à son représentant. L'Autorité de la concurrence est informée sans délai de tout changement d'adresse par lettre recommandée avec demande d'avis de réception.
Si la saisine n'est pas accompagnée de ces éléments, une demande de régularisation est adressée au demandeur ou à son représentant mandaté, qui doivent y répondre et apporter les compléments dans un délai de deux mois.
Le commissaire du Gouvernement est destinataire d'une copie de toutes les saisines autres que celles émanant du ministre chargé de l'économie.
Article R463-2
La production de mémoires, pièces justificatives ou observations effectuée devant l'Autorité de la concurrence sous la signature et sous le timbre d'un avocat emporte élection de domicile au cabinet de l'avocat ou au siège de la société d'avocats.
Section 2 : De l'instruction.
Article R463-3
Le rapporteur général ou un rapporteur général adjoint peut, à son initiative ou à la demande des parties ou du commissaire du Gouvernement, procéder à la jonction de l'instruction de plusieurs affaires. A l'issue de leur instruction, l'Autorité de la concurrence peut se prononcer par une décision commune. Le rapporteur général ou un rapporteur général adjoint peut également procéder à la disjonction de l'instruction d'une saisine en plusieurs affaires.
Article R463-4
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En application de l'article L. 450-6, le rapporteur général confie l'instruction d'une affaire à un ou plusieurs rapporteurs qu'il désigne. Il peut, en cours d'instruction, modifier cette désignation et confier l'affaire à un nouveau rapporteur.
Article R463-5
Lorsque le rapporteur juge utile, pour l'instruction des saisines mentionnées à l'article L. 462-5 et des demandes de mesures conservatoires prévues à l'article L. 464-1 dont il a la charge, et notamment en cas d'urgence, de demander à la direction générale de la concurrence, de la consommation et de la répression des fraudes communication des éléments dont elle dispose déjà, sa demande est transmise par le rapporteur général, selon les mêmes modalités que celles qui sont prévues au premier alinéa de l'article L. 450-6.
Article R463-6
Les auditions auxquelles procède le rapporteur donnent lieu à un procès-verbal, signé par les personnes entendues. En cas de refus de signer, il en est fait mention par le rapporteur. Les personnes entendues peuvent être assistées d'un conseil.
Article R463-7
Lorsqu'elle estime que l'instruction est incomplète, l'Autorité de la concurrence peut décider de renvoyer l'affaire en tout ou partie à l'instruction. Cette décision n'est pas susceptible de recours.
Article R463-8
Pour l'application de l'article L. 464-1 et des premier et deuxième alinéas de l'article L. 462-8, le rapporteur général peut fixer des délais pour la production de mémoires, pièces justificatives ou observations et pour leur consultation par les intéressés ou par le commissaire du Gouvernement.
Article R463-9
Le rapporteur général communique aux autorités administratives énumérées à l'annexe 4-6 du présent livre toute saisine relative à des secteurs entrant dans leur champ de compétence. Ces autorités administratives disposent pour faire part de leurs observations éventuelles d'un délai de deux mois, qui peut être réduit par le rapporteur général si l'urgence le nécessite. Ces observations sont jointes au dossier.
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Article R463-10
Le rapporteur général peut à tout moment de la procédure demander aux entreprises mises en cause de communiquer au rapporteur dans le délai de deux mois leur numéro unique d'identification et les chiffres d'affaires nécessaires au calcul du plafond d'une éventuelle sanction, conformément aux dispositions du I de l'article L. 464-2. La lettre de transmission mentionne que ces informations sont communiquées par le rapporteur général au commissaire du Gouvernement.
Section 3 : De la notification des griefs et du rapport.
Article R463-11
Pour l'application de l'article L. 463-2, la notification des griefs retenus par le rapporteur et la notification du rapport sont faites par le rapporteur général à l'auteur de la saisine, aux ministres intéressés, aux autres parties intéressées et au commissaire du Gouvernement. Ces notifications font l'objet d'envois recommandés avec demande d'avis de réception.
Le rapport soumet à la décision de l'Autorité de la concurrence une analyse des faits et de l'ensemble des griefs notifiés. Le commissaire du Gouvernement dispose d'un délai de deux mois pour faire valoir ses observations écrites sur le rapport. Les avis éventuels des ministres intéressés sont transmis par écrit à l'Autorité de la concurrence dans un délai de deux mois par l'intermédiaire du commissaire du Gouvernement.
Article R463-12
Lorsque le rapporteur général décide, en application de l'article L. 463-3, que l'affaire sera examinée par l'Autorité de la concurrence sans établissement préalable d'un rapport, les parties et le commissaire du Gouvernement disposent d'un délai de deux mois à compter de la notification de cette décision pour présenter leurs observations.
Section 4 : Du secret des affaires.
Article R463-13
Pour l'application de l'article L. 463-4, lorsqu'une personne demande la protection du secret des affaires à l'égard d'éléments communiqués par elle à l'Autorité de la concurrence ou saisis auprès d'elle par cette dernière, elle indique par lettre recommandée avec demande d'avis de réception, pour chaque information, document ou partie de document en cause, l'objet et les motifs de sa demande. Elle fournit séparément une version non confidentielle et un résumé de chacun de ces éléments. Cette demande doit parvenir à l'Autorité dans un délai d'un mois à compter de la date à laquelle lesdits éléments ont été obtenus par l'Autorité. En cas d'urgence, ce délai peut être réduit
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par le rapporteur général, notamment afin de permettre l'examen d'une demande de mesures conservatoires par l'Autorité, sans pouvoir être inférieur à quarante-huit heures. Dans ce cas, la demande de protection peut être présentée par tout moyen.
Lorsqu'une personne communique des éléments au ministre chargé de l'économie ou que ce dernier saisit des éléments auprès d'elle dans le cadre d'une enquête relative aux articles L. 420-1, L. 420-2 et L. 420-5, cette personne est invitée à signaler par lettre, dans un délai d'un mois à compter de la date à laquelle lesdits éléments ont été obtenus par le ministre, qu'elle demande la protection du secret des affaires, sans préjudice de son droit à invoquer les dispositions de l'article L. 463-4 devant l'Autorité de la concurrence. Cette lettre est jointe à la saisine éventuelle de l'Autorité de la concurrence.
Lorsque l'instruction de l'affaire par l'Autorité de la concurrence fait apparaître que des informations, documents ou parties de documents pouvant mettre en jeu le secret des affaires n'ont pas pu faire l'objet d'une demande de protection par une personne susceptible de se prévaloir de ce secret, le rapporteur général invite cette personne à présenter, si elle le souhaite, une demande dans les conditions de forme et de délai mentionnées au premier alinéa pour bénéficier de la protection du secret des affaires.
Article R463-14
Les informations, documents ou parties de documents pour lesquels une demande de protection au titre du secret des affaires n'a pas été présentée sont réputés ne pas mettre en jeu le secret des affaires. Il en est de même des éléments portant sur les ventes, parts de marché, offres ou données similaires de plus de cinq ans au moment où il est statué sur la demande, sauf si, dans des cas exceptionnels, le rapporteur général en décide autrement.
Dans le cadre de l'instruction par l'Autorité de la concurrence, le rapporteur examine, avant que les éléments concernés du dossier soient rendus accessibles ou communiqués aux parties, les demandes de protection de secrets d'affaires qui ont été formulées. Le rapporteur général notifie au demandeur une décision de traitement confidentiel des informations, documents ou parties de documents en cause. Les actes de procédure sont établis en fonction de cette décision. Le rapporteur général peut aussi rejeter la demande en tout ou en partie si elle n'a pas été présentée conformément aux dispositions du premier alinéa de l'article R. 463-13, si elle l'a été au-delà du délai imparti ou si elle est manifestement infondée.
Article R463-15
Lorsque le rapporteur considère qu'une ou plusieurs pièces dans leur version confidentielle sont nécessaires à l'exercice des droits de la défense d'une ou plusieurs parties ou que celles-ci doivent en prendre connaissance pour les besoins du débat devant l'Autorité, il en informe par lettre recommandée avec demande d'avis de réception la personne qui a fait la demande de protection du secret des affaires contenu dans ces pièces et lui fixe un délai pour présenter ses observations avant que le rapporteur général ne statue. La décision du rapporteur général est notifiée aux intéressés.
Lorsqu'une partie mise en cause n'a pas eu accès à la version confidentielle d'une pièce qu'elle estime nécessaire à l'exercice de ses droits, elle peut en demander au rapporteur la communication ou la consultation en lui présentant une requête motivée dès sa prise de connaissance de la version non confidentielle et du résumé de cette pièce. Il est alors procédé comme à l'alinéa précédent.
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Le rapporteur général fixe, le cas échéant, un délai permettant un débat sur les informations, documents ou parties de document nouvellement communiqués.
Article R463-15-1
Pour l'application de l'article L. 463-4 dans le cadre de l'examen des projets d'opérations de concentration prévu au titre III, les personnes apportant des informations à l'Autorité de la concurrence lui précisent en même temps celles qui constituent des secrets d'affaires. Le rapporteur général veille à ce que ces informations soient réservées à l'Autorité et au commissaire du Gouvernement et à ce que soient constituées, si nécessaire, des versions non confidentielles des documents les contenant.
Les dispositions des articles R. 463-13 à R. 463-15 ne sont pas applicables.
Section 5 : De l'expertise.
Article R463-16
Lorsqu'en application de l'article L. 463-8 le rapporteur général décide de faire appel à un ou des experts, sa décision définit l'objet de l'expertise, fixe le délai de sa réalisation et évalue les honoraires prévisibles correspondants.
Lorsque l'expertise est demandée par une partie et acceptée par le rapporteur général, ce dernier lui demande de consigner le montant d'une provision égale aux honoraires prévus de l'expert. Si plusieurs parties doivent procéder à une telle consignation, le rapporteur général indique dans quelle proportion chacune doit consigner.
Le rapporteur général peut décider d'accorder aux experts qui le demandent une avance forfaitaire, qui ne peut excéder 25 % des honoraires prévus.
Le ou les experts informent le rapporteur chargé de l'instruction de l'affaire de l'avancement des opérations d'expertise. Le ou les experts doivent prendre en considération les observations des parties, qui peuvent être adressées par écrit ou être recueillies oralement, et doivent les joindre à leur rapport si elles sont écrites et si la partie concernée le demande. Ils doivent faire mention, dans leur rapport, de la suite qu'ils leur ont donnée.
Le rapport d'expertise est remis au rapporteur chargé de l'instruction de l'affaire. Ce dernier le joint en annexe à sa notification de griefs, à son rapport ou à sa proposition de non-lieu ou, s'il est remis après l'envoi de son propre rapport, l'adresse aux parties et au commissaire du Gouvernement afin qu'ils puissent faire part de leurs observations éventuelles. Ces observations sont faites dans la réponse à la notification de griefs, au rapport du rapporteur ou à la proposition de non-lieu, ou bien en séance.
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Même si plusieurs experts ont été désignés, un seul rapport est rédigé, qui fait apparaître les points d'accord et les points de divergence éventuels.
A la remise du rapport d'expertise, le rapporteur général arrête définitivement le montant des honoraires d'expertise et fait procéder à leur paiement.
Chapitre IV : Des décisions et des voies de recours.
Section 1 : Des décisions.
Article R464-1
La demande de mesures conservatoires mentionnée à l'article L. 464-1 ne peut être formée qu'accessoirement à une saisine au fond de l'Autorité de la concurrence. Elle peut être présentée à tout moment de la procédure et doit être motivée.
Article R464-2
Lorsque l'Autorité de la concurrence envisage de faire application du I de l'article L. 464-2 relatif à l'acceptation d'engagements proposés par les entreprises, le rapporteur fait connaître aux entreprises ou organismes concernés son évaluation préliminaire des pratiques en cause. Cette évaluation peut être faite par courrier, par procès-verbal ou, lorsque l'Autorité est saisie d'une demande de mesures conservatoires, par la présentation d'un rapport oral en séance. Une copie de l'évaluation est adressée à l'auteur de la saisine et au commissaire du Gouvernement, sauf lorsqu'elle est présentée oralement lors d'une séance en présence des parties.
Le délai imparti aux entreprises ou organismes pour formaliser leurs engagements à l'issue de l'évaluation préliminaire est fixé, soit par le rapporteur dans le cas où l'évaluation a été faite par courrier ou par procès-verbal, soit par l'Autorité de la concurrence dans le cas où cette évaluation a été présentée oralement en séance. Ce délai ne peut, sauf accord des entreprises ou organismes concernés, être inférieur à un mois.
A réception des engagements proposés par les entreprises ou organismes concernés à l'issue du délai mentionné au deuxième alinéa, le rapporteur général communique leur contenu à l'auteur ou aux auteurs de la saisine ainsi qu'au commissaire du Gouvernement. Il publie également, par tout moyen, un résumé de l'affaire et des engagements pour permettre aux tiers intéressés de présenter leurs observations. Il fixe un délai, qui ne peut être inférieur à un mois à compter de la date de communication ou de publication du contenu des engagements, pour la production des observations des parties, du commissaire du Gouvernement et, le cas échéant, des tiers intéressés. Ces observations sont versées au dossier.
Les parties et le commissaire du Gouvernement sont convoqués à la séance par l'envoi d'une lettre du rapporteur général accompagnée de la proposition d'engagements trois semaines au moins avant le jour de la séance. Ils peuvent présenter des observations orales lors de la séance.
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Article R464-3
Pour l'application des dispositions relatives à la liquidation de l'astreinte prévues au II de l'article L. 464-2, l'Autorité de la concurrence se prononce après sa saisine dans les conditions prévues à l'article L. 462-5. Sa décision est précédée de l'établissement d'un rapport évaluant le montant définitif de l'astreinte. Ce rapport est adressé aux parties et au commissaire du Gouvernement, qui disposent d'un délai d'un mois pour présenter leurs observations écrites. Les parties et le commissaire du Gouvernement peuvent également présenter des observations orales lors de la séance.
Article R464-4
Lorsque le rapporteur général propose à l'Autorité de la concurrence de faire application des dispositions du III de l'article L. 464-2, les parties et le commissaire du Gouvernement en sont informés par l'envoi d'une lettre du rapporteur général trois semaines au moins avant le jour de la séance.
Article R464-5
L'entreprise ou l'organisme qui effectue la démarche mentionnée au IV de l'article L. 464-2 s'adresse soit au directeur général de la concurrence, de la consommation et de la répression des fraudes, soit au rapporteur général de l'Autorité de la concurrence. La démarche est effectuée par courrier adressé en recommandé avec demande d'avis de réception ou oralement. Dans ce dernier cas, le directeur général de la concurrence, de la consommation et de la répression des fraudes ou le rapporteur général de l'Autorité de la concurrence constate par écrit la date de la démarche. La déclaration du représentant de l'entreprise ou de l'organisme est recueillie dans les délais les plus brefs par procès-verbal de déclaration par un enquêteur de la direction générale de la concurrence, de la consommation et de la répression des fraudes ou un rapporteur de l'Autorité de la concurrence.
Le directeur général de la concurrence, de la consommation et de la répression des fraudes et le rapporteur général s'informent réciproquement de toute démarche faite auprès d'eux en application du premier alinéa du présent article ainsi que de l'existence d'une éventuelle enquête ou instruction se rapportant aux pratiques en cause et déjà en cours avant cette démarche.
Un rapporteur de l'Autorité de la concurrence élabore des propositions d'exonération de sanctions et précise les conditions auxquelles l'Autorité de la concurrence pourrait soumettre cette exonération dans son avis de clémence. Son rapport est adressé, au moins trois semaines avant la séance, à l'entreprise ou organisme concerné et au commissaire du Gouvernement.
Lorsque le bénéfice des dispositions du IV de l'article L. 464-2 a été demandé, le rapport d'enquête ou la notification de griefs et le rapport du rapporteur peuvent comporter une appréciation sur le respect par l'entreprise ou l'organisme bénéficiaire de l'avis de clémence des conditions prévues par celui-ci.
Article R464-6
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Les convocations aux séances de l'Autorité de la concurrence sont adressées par envois recommandés avec demande d'avis de réception trois semaines au moins avant le jour de la séance. Ce délai peut être réduit par le rapporteur général lorsque l'Autorité de la concurrence se réunit pour statuer en application de l'article L. 464-1.
Le rapporteur qui a instruit une affaire peut présenter des observations orales lors de la séance au cours de laquelle elle est examinée.
Les parties qui souhaitent l'audition d'une personne lors de la séance doivent en faire la demande au président de l'Autorité de la concurrence quinze jours au moins avant cette séance.
Article R464-7
Pour l'application de l'article L. 464-6, l'auteur de la saisine et le commissaire du Gouvernement disposent d'un délai de deux mois pour faire valoir leurs observations écrites. Ils peuvent présenter des observations orales lors de la séance.
Article R464-8
I. - Les décisions de l'Autorité de la concurrence sont notifiées :
1° Pour les décisions mentionnées à l'article L. 464-1, à l'auteur de la demande de mesures conservatoires, aux personnes contre lesquelles la demande est dirigée et au commissaire du Gouvernement ;
2° Pour les décisions mentionnées à l'article L. 462-8, à l'auteur de la saisine et au ministre chargé de l'économie ;
3° Pour les décisions mentionnées à l'article L. 464-6, à l'auteur de la saisine, aux personnes dont les agissements ont été examinés par le rapporteur au regard des articles L. 420-1, L. 420-2 et L. 420-5 ainsi que, le cas échéant, des articles 81 et 82 du traité instituant la Communauté européenne et au ministre chargé de l'économie ;
4° Pour les décisions prises suivant les modalités prévues par les articles L. 463-2, L. 463-3, L. 464-2, L. 464-3 et L. 464-5, aux personnes destinataires de la notification de griefs ou du rapport ainsi qu'aux entreprises ou organismes ayant souscrit des engagements et au ministre chargé de l'économie ;
5° Pour les décisions mentionnées au dernier alinéa de l'article L. 461-3 prises à la suite d'une saisine du ministre chargé de l'économie en application du quatrième alinéa de l'article L. 464-9, aux parties concernées et au ministre chargé de l'économie.
II. - abrogé
Article D464-8-1
Les décisions de l'Autorité de la concurrence mentionnées à l'article L. 470-7-1 sont publiées sur le site internet de l'Autorité. Leur publicité peut être limitée pour tenir compte de l'intérêt légitime des parties et des personnes citées à ce que leurs secrets d'affaires ne soient pas divulgués.
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Article R464-9
Pour l'application de l'article L. 464-3, l'Autorité de la concurrence se prononce après avoir été saisie dans les conditions prévues par l'article L. 462-5. Sa décision est précédée de l'établissement d'un rapport qui est adressé aux parties et au commissaire du Gouvernement, qui disposent d'un délai de deux mois pour présenter leurs observations écrites. En cas d'urgence, ce délai peut être ramené à un mois par le rapporteur général. Les parties et le commissaire du Gouvernement peuvent également présenter des observations orales lors de la séance.
Article R464-9-1
Le ministre chargé de l'économie communique, par lettre recommandée avec demande d'avis de réception, aux entreprises qu'il soupçonne de pratiques mentionnées aux articles L. 420-1, L. 420-2 et L. 420-5 et qui répondent aux conditions de chiffres d'affaires spécifiées au premier alinéa de l'article L. 464-9 les faits constatés de nature à constituer les infractions qui leur sont imputées. Cette communication est accompagnée d'un rapport administratif d'enquête. Ce rapport met en évidence les faits constatés, leur qualification juridique et leur imputabilité. Les entreprises concernées sont informées des mesures envisagées à leur égard, à savoir une injonction et une somme à verser au Trésor public à titre de transaction, ou l'une de ces deux mesures seulement. Les entreprises destinataires peuvent consulter le dossier sous réserve de la protection du secret des affaires.
Les entreprises destinataires sont invitées à formuler des observations écrites et disposent pour ce faire d'un délai de deux mois à compter de la réception du courrier. Ce délai peut être prorogé à leur demande d'une nouvelle période ne pouvant excéder deux mois. Les entreprises peuvent également présenter dans le délai imparti des observations orales au signataire du courrier. Elles peuvent se faire assister d'un conseil.
Article R464-9-2
Après examen des observations reçues, le ministre chargé de l'économie informe, par lettre recommandée avec demande d'avis de réception, chaque entreprise concernée de sa décision. Il peut classer l'affaire ou enjoindre aux entreprises de prendre les mesures de nature à mettre fin aux pratiques anticoncurrentielles constatées et leur indiquer la somme proposée à titre de transaction, ou l'une de ces deux dernières mesures seulement.
Pour chaque entreprise concernée, la décision indique les délais dans lesquels l'entreprise doit exécuter l'injonction et payer la somme proposée à titre de transaction au Trésor public.
L'entreprise destinataire de la décision dispose d'un délai d'un mois à compter de la notification de celle-ci pour l'accepter en la contresignant.A défaut de réponse dans ce délai, l'entreprise est réputée avoir refusé de transiger et d'exécuter l'injonction.
L'Autorité de la concurrence est informée de chaque injonction prononcée et de chaque transaction conclue.
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Article R464-9-3
Dans le cas où l'entreprise a refusé les mesures notifiées ou n'a pas exécuté l'injonction ou encore n'a pas versé la somme prévue par la transaction, le ministre chargé de l'économie saisit l'Autorité de la concurrence. Les observations formulées par les entreprises destinataires de l'injonction ou de la transaction dans le cadre de la procédure ne sont pas transmises à l'Autorité de la concurrence.
Le refus ou l'acceptation d'une ou de plusieurs entreprises concernées est sans effet sur la situation des autres entreprises ayant fait l'objet de la même procédure.
Section 2 : Des recours exercés devant la cour d'appel de Paris contre les décisions du Conseil de la concurrence.
Article R464-10
Par dérogation aux dispositions du titre VI du livre II du code de procédure civile, les recours exercés devant la cour d'appel de Paris contre les décisions de l'Autorité de la concurrence sont formés, instruits et jugés conformément aux dispositions de la présente section.
Article R464-11
L'Autorité de la concurrence n'est pas partie à l'instance.
Sous-section 1 : Des recours prévus à l'article L. 464-8.
Article R464-12
Les recours prévus à l'article L. 464-8 sont formés par une déclaration écrite en triple exemplaire déposée contre récépissé au greffe de la cour d'appel de Paris contenant, à peine de nullité :
1° Si le demandeur est une personne physique, ses nom, prénoms, profession et domicile ; si le demandeur est une personne morale, sa dénomination, sa forme, son siège social et l'organe qui la représente ; dans le cas où la déclaration est faite au nom du ministre chargé de l'économie, elle indique la dénomination et l'adresse du service mentionné au deuxième alinéa de l'article R. 464-26 ;
2° L'objet du recours.
Lorsque la déclaration ne contient pas l'exposé des moyens invoqués, le demandeur doit, à peine d'irrecevabilité prononcée d'office, déposer cet exposé au greffe dans les deux mois qui suivent la
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notification de la décision de l'Autorité de la concurrence.
Article R464-13
La déclaration de recours mentionne la liste des pièces et documents justificatifs produits. Les pièces et documents mentionnés dans la déclaration sont remis au greffe de la cour d'appel en même temps que la déclaration. Le demandeur au recours joint à la déclaration une copie de la décision attaquée.
Lorsque le demandeur au recours n'est pas représenté, il informe sans délai le greffe de la cour de tout changement de domicile.
Article R464-14
Dans les cinq jours qui suivent le dépôt de la déclaration, le demandeur au recours doit, à peine d'irrecevabilité de ce dernier, prononcée d'office, en adresser par lettre recommandée avec demande d'avis de réception une copie aux parties auxquelles la décision de l'Autorité de la concurrence a été notifiée, ainsi qu'il ressort de la lettre de notification prévue au deuxième alinéa de l'article R. 464-30.
Article R464-15
Dès l'enregistrement du recours, le greffe de la cour d'appel notifie une copie de la déclaration mentionnée à l'article R. 464-12 et des pièces qui y sont jointes à l'Autorité de la concurrence, ainsi qu'au ministre chargé de l'économie s'il n'est pas demandeur au recours.
L'Autorité de la concurrence transmet au greffe de la cour le dossier de l'affaire qui comporte les procès-verbaux et rapports d'enquête, les griefs, les observations, le rapport, les documents et les mémoires mentionnés à l'article L. 463-2.
Le greffe transmet à l'Autorité de la concurrence et au ministre de l'économie une copie des pièces de procédure ultérieures, y compris celles qui résultent de l'application des articles R. 464-16, R. 464-17 et R. 464-19.
Article R464-16
Un recours incident peut être formé alors même que son auteur serait forclos pour exercer un recours à titre principal. Dans ce dernier cas, le recours n'est toutefois pas recevable s'il est formé plus d'un mois après la réception de la lettre prévue à l'article R. 464-14 ou si le recours principal n'est pas lui-même recevable.
Le recours incident est formé selon les modalités prévues à l'article R. 464-12. Il est dénoncé, dans les conditions prévues à l'article R. 464-14, aux demandeurs au recours à titre principal.
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Article R464-17
Lorsque le recours risque d'affecter les droits ou les charges d'autres personnes qui étaient parties en cause devant l'Autorité de la concurrence, ces personnes peuvent se joindre à l'instance devant la cour d'appel par déclaration écrite et motivée déposée au greffe dans les conditions prévues à l'article R. 464-12 dans le délai d'un mois après la réception de la lettre prévue à l'article R. 464-14. Elle est notifiée aux demandeurs au recours.
A tout moment, le premier président ou son délégué ou la cour peut mettre d'office en cause ces mêmes personnes. Le greffe notifie la décision de mise en cause par lettre recommandée avec demande d'avis de réception.
Article R464-18
Le premier président de la cour d'appel ou son délégué fixe les délais dans lesquels les parties à l'instance doivent se communiquer leurs observations écrites et en déposer copie au greffe de la cour. Il fixe les délais dans lesquels l'Autorité de la concurrence et le ministre chargé de l'économie, lorsqu'il n'est pas partie à l'instance, peuvent produire des observations écrites. Il fixe également la date des débats.
Le greffe notifie ces délais aux parties, à l'Autorité de la concurrence et au ministre chargé de l'économie lorsqu'il n'est pas partie à l'instance, et les convoque à l'audience prévue pour les débats par lettre recommandée avec demande d'avis de réception.
Les observations présentées par l'Autorité de la concurrence et le ministre chargé de l'économie, lorsqu'il n'est pas partie à l'instance, sont portées par le greffe à la connaissance des parties à l'instance.
Article R464-19
Le ministre chargé de l'économie, lorsqu'il n'est pas partie à l'instance, peut présenter des observations orales à l'audience à sa demande ou à la demande du premier président ou de la Cour.
Sous-section 2 : Des recours prévus à l'article L. 464-7.
Article R464-20
Les recours prévus à l'article L. 464-7 sont portés devant la cour d'appel par voie d'assignation à une audience préalablement indiquée par le premier président ou son délégué.
A peine de nullité, l'assignation contient, outre les mentions prescrites pour les actes d'huissier de justice, l'objet du recours avec un exposé des moyens.
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Sous la même sanction :
1° Une copie de la décision attaquée est jointe à l'assignation ;
2° Une copie de l'assignation est déposée en triple exemplaire au greffe de la cour d'appel au plus tard dans les cinq jours qui suivent celui de sa signification.
A peine d'irrecevabilité du recours prononcée d'office, l'assignation est délivrée à toutes les parties en cause devant l'Autorité de la concurrence ainsi qu'au ministre chargé de l'économie.
Une copie de l'assignation est immédiatement notifiée à la diligence de l'huissier de justice à l'Autorité de la concurrence par lettre recommandée avec demande d'avis de réception.
Article R464-21
Le ministre chargé de l'économie, lorsqu'il n'est pas partie à l'instance, a la faculté de présenter des observations écrites ou orales. Ces dernières sont présentées à sa demande ou à la demande du premier président ou de la Cour.
Sous-section 3 : Des demandes de sursis à exécution.
Article R464-22
Les demandes de sursis à exécution prévues à l' article L. 464- 8 sont portées par voie d' assignation devant le premier président de la cour d' appel de Paris, selon les modalités du deuxième alinéa de l' article 485 du code de procédure civile.
Article R464-23
A peine de nullité, l'assignation contient, outre les mentions prescrites pour les actes d'huissier de justice, l'exposé des moyens invoqués à l'appui de la demande de sursis.
Sous la même sanction, elle précise la date à laquelle a été formé le recours contre la décision dont le sursis à exécution est demandé.
Article R464-24
A peine d'irrecevabilité de la demande prononcée d'office, l'assignation est délivrée à toutes les parties en cause devant l'Autorité de la concurrence et au ministre chargé de l'économie. Une copie de l'assignation est immédiatement notifiée à la diligence de l'huissier de justice à l'Autorité de la concurrence par lettre recommandée avec demande d'avis de réception.
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Sous-section 4 : Dispositions communes aux différentes demandes.
Article R464-25
Les notifications entre parties ont lieu par lettre recommandée avec demande d'avis de réception ou par notification directe entre les avocats ou les avoués des parties. Les pièces de procédure doivent être déposées au greffe en triple exemplaire.
Article R464-26
Devant la cour d'appel ou son premier président, la représentation et l'assistance des parties et de l'Autorité de la concurrence s' exercent dans les conditions prévues par l' article 931 du code de procédure civile.
Le ministre chargé de l' économie est représenté par le directeur général de la concurrence, de la consommation et de la répression des fraudes ou son délégué.
Article R464-27
Le ministère public peut prendre communication des affaires dans lesquelles il estime devoir intervenir.
Article R464-28
Les décisions de la cour d'appel de Paris ou de son premier président sont notifiées par lettre recommandée avec demande d'avis de réception par le greffe de la cour aux parties à l'instance et au ministre de l'économie lorsqu'il n'est pas partie à l'instance.
Elles sont portées à la connaissance de l'Autorité de la concurrence par lettre simple à l'initiative du greffe. L'Autorité de la concurrence veille à l'exécution de ses décisions et les publie sur son site internet. Cette publication fait courir le délai de recours à l'égard des tiers.
Article R464-29
Les décisions prises par le rapporteur général de l'Autorité de la concurrence en application de l'article L. 463-4 ne peuvent faire l'objet d'un recours qu'avec la décision de l'Autorité sur le fond.
Article R464-30
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Les décisions de l'Autorité de la concurrence sont notifiées par lettre recommandée avec demande d'avis de réception.
A peine de nullité, la lettre de notification indique le délai de recours ainsi que les modalités selon lesquelles celui-ci peut être exercé. Elle comporte en annexe les noms, qualités et adresses des parties auxquelles la décision de l'Autorité de la concurrence a été notifiée.
Article R464-31
Les augmentations de délais prévues à l' article 643 du code de procédure civile ne s' appliquent pas aux recours présentés en vertu des dispositions du présent chapitre.
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Partie réglementaire
LIVRE IV : De la liberté des prix et de la concurrence.
TITRE VII : Dispositions diverses.
Article R470-1
Lorsque le ministre chargé de l'économie intervient sur le fondement de l'article L. 470-5, il est dispensé de représentation par un avocat ou un avoué.
Article R470-2
Pour l'application du 2 de l'article 15 du règlement (CE) n° 1/2003 du Conseil du 16 décembre 2002 relatif à la mise en oeuvre des règles de concurrence prévues aux articles 81 et 82 du traité instituant la Communauté européenne, les décisions de justice qui statuent sur le fondement des articles 81 et 82 de ce traité sont notifiées par le greffe de la juridiction à la Commission européenne, à l'Autorité de la concurrence et au ministre chargé de l'économie, par lettre recommandée avec accusé de réception. Il est fait mention de cette notification dans le dispositif de la décision.
Article R470-3
Lorsque le juge envisage de solliciter l'avis de la Commission européenne en application des dispositions du 1 de l'article 15 du règlement (CE) n° 1/2003 du Conseil du 16 décembre 2002 relatif à la mise en oeuvre des règles de concurrence prévues aux articles 81 et 82 du traité instituant la Communauté européenne, il en avise les parties. A moins qu'elles n'aient déjà conclu sur ce point, il les invite à produire des observations dans un délai qu'il fixe.
Dès réception des observations ou à l'expiration du délai, le juge peut solliciter l'avis de la Commission européenne par une décision non susceptible de recours. Il surseoit à statuer jusqu'à la réception de l'avis ou jusqu'à l'expiration d'un délai qu'il fixe.
La décision sollicitant l'avis, ainsi que les observations éventuelles, est adressée à la Commission européenne par le greffe de la juridiction. Cette décision, ainsi que la date de transmission du dossier, est notifiée aux parties par lettre recommandée avec demande d'avis de réception.
Dès la réception de l'avis par la juridiction, celui-ci est notifié par le greffe aux parties qui peuvent
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présenter des observations.
Article R470-4
Lorsque le juge envisage de demander à la Commission européenne des informations en application des dispositions du 1 de l'article 15 du règlement (CE) n° 1/2003 du Conseil du 16 décembre 2002 relatif à la mise en oeuvre des règles de concurrence prévues aux articles 81 et 82 du traité instituant la Communauté européenne, il en avise les parties.
Il notifie la réponse de la Commission européenne aux parties qui peuvent présenter des observations.
Article R470-5
L'autorité administrative, au sens de l'article L. 470-4-1, est, au sein de la direction générale de la concurrence, de la consommation et de la répression des fraudes, le directeur régional ou le chef d'unité départementale territorialement compétents.
Article R470-6
L'autorité administrative mentionnée à l'article R. 470-5 transmet la proposition de transaction au procureur de la République dans un délai de trois mois à compter de la clôture du procès-verbal de constatation de l'infraction. Cette proposition précise la somme que l'auteur de l'infraction sera invité à payer au Trésor public, le délai imparti pour son paiement et, s'il y a lieu, les autres obligations résultant pour lui de l'acceptation de la transaction.
Article R470-7
Lorsque le procureur de la République a donné son accord sur la proposition de transaction, le chef de service notifie cette dernière en double exemplaire à l'auteur de l'infraction. Cette notification comporte une mention précisant que si la personne ne paie pas, dans le délai imparti, la somme indiquée dans la proposition ou qu'elle ne satisfait pas aux autres obligations le cas échéant souscrites par elle, le procureur de la République décidera, sauf élément nouveau, d'engager les poursuites à son égard.
L'auteur de l'infraction dispose d'un mois, à compter de cette notification, pour y répondre. En cas d'acceptation, l'auteur de l'infraction retourne à l'autorité administrative un exemplaire signé de la proposition.
Dans l'hypothèse où, au terme du délai mentionné à l'alinéa ci-dessus, l'auteur de l'infraction a
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refusé la proposition ou n'y a pas répondu, l'autorité administrative en informe sans délai le procureur de la République. Ce dernier est également informé par l'autorité administrative du cas où l'auteur de l'infraction n'aurait pas acquitté la somme indiquée dans la proposition, au terme du délai imparti, ou n'aurait pas satisfait aux autres obligations le cas échéant souscrites par lui.
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Partie réglementaire
LIVRE V : Des effets de commerce et des garanties.
TITRE Ier : Des effets de commerce.
Chapitre Ier : De la lettre de change.
Section 1 : Du paiement.
Article R511-1
L'acte constatant le dépôt prévu à l'article L. 511-30 contient la date de la lettre de change, celle de l'échéance et le nom de celui au bénéfice duquel elle a été originairement faite.
En cas de présentation de la lettre postérieurement au dépôt prévu à l'article L. 511-30, le débiteur remet l'acte de dépôt en échange de la lettre de change.
La somme déposée est remise par la Caisse des dépôts et consignations en contrepartie de l'acte de dépôt à celui qui le présente.
Section 2 : Des protêts.
Article R511-2
Les notaires et les huissiers de justice remettent, conformément à l'article L. 511-55 du code de commerce et à l'article L. 131-64 du code monétaire et financier, deux copies des protêts, faute de paiement de lettres de change acceptées ou de billet à ordre, et trois copies des protêts, faute de paiement de chèques, ou envoient par lettre recommandée, sous pli distinct pour chacun d'eux, une copie des protêts, faute de paiement de lettres de change acceptées ou de billet à ordre, et deux copies des protêts, faute de paiement des chèques, au greffier du tribunal de commerce dans le ressort duquel est situé le domicile de l'accepteur de la lettre de change, du souscripteur du billet à ordre ou du tireur du chèque.
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Article R511-3
Sur les copies des protêts, le nom de famille de l'accepteur de la lettre de change, du souscripteur du billet à ordre ou du tireur du chèque est porté en lettres capitales.
L'huissier ou le notaire porte également sur ces copies, d'après les renseignements qu'il a pu obtenir, s'ils n'y figurent pas déjà, le domicile de la personne mentionnée à l'alinéa précédent et, le cas échéant, son nom d'usage.
Article R511-4
Il est ouvert par chaque greffier un registre dans lequel sont inscrits, par ordre de date et sous un numéro d'ordre, les protêts reçus.
Ce registre est divisé en neuf colonnes destinées à recevoir :
Colonne 1 : le numéro d'ordre, lequel est également porté par le greffier sur les copies du protêt ;
Colonne 2 : la date du protêt ;
Colonne 3 : les nom, prénoms, dénomination sociale ou commerciale, le cas échéant enseigne, profession et domicile du souscripteur du billet à ordre, du tireur du chèque ou de l'accepteur de la lettre de change ;
Colonne 4 : les nom, prénoms, dénomination sociale ou commerciale, le cas échéant enseigne, profession et domicile de celui au profit de qui l'effet ou le chèque a été créé, ou du tireur de la lettre de change ;
Colonne 5 : la date de l'échéance, s'il y a lieu ;
Colonne 6 : le montant de l'effet ;
Colonne 7 : la réponse donnée au protêt ;
Colonne 8 : les nom, qualité et adresse de l'officier public ou ministériel ayant établi le protêt ;
Colonne 9 : la date à laquelle il est procédé à la radiation, la nature des pièces en vertu desquelles il y est procédé et la date du retrait de ces pièces.
Si l'une de ces insertions ne figure pas sur la copie du protêt, le greffier indique dans la colonne
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correspondante que le renseignement n'est pas en sa possession.
Article R511-5
Le registre mentionné à l'article R. 511-4 est, avant son ouverture, daté et signé par première et dernière feuille, coté et paraphé en tous ses feuillets par le président du tribunal de commerce.
Article R511-6
Pour chaque protêt dont il a été reçu copie, le greffier établit en outre une fiche comportant les mentions suivantes : les nom en lettres capitales, prénoms, dénomination sociale ou commerciale, le cas échéant enseigne, profession et domicile de l'accepteur de la lettre de change, du souscripteur du billet à ordre ou du tireur du chèque, la date du protêt, et le numéro d'ordre de l'inscription au registre chronologique mentionné à l'article R. 511-4.
Lorsque la copie du protêt transmise au greffier porte mention du nom d'usage, une fiche est établie au nom de famille et au nom d'usage.
Chaque fiche est classée par le greffier dans un fichier alphabétique qui constitue l'état nominatif des protêts, prévu à l'article L. 511-56.
Article R511-7
Chaque fiche mentionnée à l'article R. 511-6 énonce :
1° La date du protêt ;
2° Les nom, prénoms, profession et domicile de celui au profit de qui l'effet ou le chèque a été créé, ou le tireur de la lettre de change ;
3° Les nom, prénoms, ou dénomination sociale ou commerciale, profession et domicile du souscripteur du billet à ordre ou du tiré, pour le chèque, ou de l'accepteur de la lettre de change ;
4° La date de l'échéance, s'il y a lieu ;
5° Le montant de l'effet ;
6° La réponse donnée au protêt.
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Article R511-8
Le greffier remet à l'huissier ou au notaire qui a déposé les copies du protêt une de ces copies, après l'avoir datée et signée. Cette copie vaut récépissé.
Article R511-9
Les extraits du registre mentionné à l'article R. 511-4 sont délivrés sur demande écrite, datée et signée par le requérant, précisant, en lettres capitales pour les noms de famille, les nom, prénoms, dénomination sociale ou commerciale, profession et domicile de celui-ci, ainsi que les nom, prénoms, dénomination sociale ou commerciale, le cas échéant, enseigne, profession et domicile de la personne pouvant faire l'objet de l'inscription. Le nom et l'adresse de celle-ci peuvent toutefois être seuls indiqués par le requérant, s'il atteste qu'il ignore les autres mentions la concernant. Dans ce dernier cas, le greffier ne délivre l'extrait sollicité que si les indications fournies sont suffisantes pour permettre l'identification du débiteur faisant l'objet de la recherche.
Les extraits délivrés comportent les indications mentionnées aux colonnes 1, 2, 3, 4, 5, 6 et 7 du registre mentionné à l'article R. 511-4.
Article R511-10
S'il n'existe aucune inscription correspondant à l'identité du débiteur signalé ou si l'inscription portée au nom de ce dernier concerne un protêt dont la date est antérieure de plus d'un an ou de moins d'un mois au jour où le greffier est saisi de la demande ou au jour pour lequel l'extrait a été spécialement demandé, le greffier délivre au requérant une attestation reproduisant les indications fournies par celui-ci et indiquant qu'il n'a pas été trouvé d'inscription au registre des protêts.
Si plusieurs inscriptions sont susceptibles de correspondre à l'identité de la personne pour laquelle la recherche est demandée, le greffier délivre tous les extraits pouvant se rapporter à cette personne.
Article R511-11
Sur dépôt des pièces mentionnées à l'article L. 511-58, le greffier procède à la radiation de l'inscription sur la fiche et porte à la colonne 9 du registre chronologique la mention de radiation prévue à l'article R. 511-4.
Chapitre II : Du billet à ordre.
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Article R512-1
Sont applicables au billet à ordre, en tant qu'elles ne sont pas incompatibles avec la nature de ce titre, les dispositions des articles R. 511-1 à R. 511-11.
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Partie réglementaire
LIVRE V : Des effets de commerce et des garanties.
TITRE II : Des garanties.
Chapitre Ier : Dispositions générales sur le gage commercial.
Article R521-1
Les dispositions des articles R. 322-3 et R. 322-6 sont applicables aux ventes prévues par l'article L. 521-3, sous réserve des dispositions de l'article R. 521-2.
Article R521-2
Le minimum de la valeur des lots est fixé à 15 euros pour les ventes de marchandises de toute espèce faites dans les cas prévus par l'article L. 521-3.
Chapitre II : Des dépôts en magasins généraux.
Section 1 : De l'agrément, de la cession et de la cessation d'exploitation.
Article R522-1
Les demandes d'agrément prévues à l'article L. 522-1 sont déposées à la préfecture par l'exploitant de l'entrepôt intéressé.
Article R522-2
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Les demandes d'agrément sont accompagnées des pièces suivantes :
1° Un extrait du registre du commerce et des sociétés sur lequel il est inscrit ;
2° S'il s'agit d'une société, un exemplaire des statuts et la liste des associés possédant plus de 10 % du capital social ;
3° Un plan des locaux affectés à l'exploitation, avec l'indication de la nature des droits de l'exploitant sur ces locaux ;
4° Un mémoire indiquant l'emplacement de l'établissement, son équipement, ses moyens d'accès ainsi que la nature et le volume du trafic escompté ;
5° Un projet de règlement particulier de l'établissement.
Si le demandeur est une société en formation, les demandes d'agrément sont accompagnées, en substitution des pièces prévues aux 1° et 2°, d'un projet des statuts et de la liste des associés devant souscrire plus de 10 % du capital social.
Article R522-3
Le préfet peut exiger toutes pièces propres à établir l'identité, la moralité et la situation financière de l'exploitant.
Article R522-4
Dans les quinze jours de leur dépôt, les demandes d'agrément sont transmises pour avis :
1° A la chambre de commerce et d'industrie dans la circonscription de laquelle l'établissement doit être exploité ;
2° A la Fédération nationale des prestataires logistiques et des magasins généraux agréés par l'Etat.
Lorsque l'agrément est sollicité par une chambre de commerce et d'industrie, à la consultation de celle-ci est substituée celle du tribunal de commerce dans le ressort duquel est situé l'établissement.
Article R522-5
Les organismes mentionnés à l'article R. 522-4 doivent donner leur avis dans le délai de deux mois
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qui suit la transmission qui leur est faite des dossiers des demandes. A défaut, l'avis est réputé favorable.
A l'expiration de ce délai, et dans les huit jours qui suivent, le préfet statue.
Article R522-6
Les demandes d'agrément déposées par les entreprises mentionnées à l'article L. 522-11 font l'objet, avant leur transmission aux organismes mentionnés à l'article R. 522-4, et pendant la période de trois mois qui suit le dépôt, d'un affichage à la préfecture ainsi qu'à la mairie et au greffe du tribunal de commerce du lieu de l'entrepôt. Elles font également l'objet, au cours du premier mois, d'une insertion dans un ou plusieurs journaux habilités à recevoir les annonces légales.
A l'expiration de ce délai de trois mois, les demandes de dérogation sont transmises aux organismes prévus à l'article R. 522-4.
Article R522-7
Lorsque les demandes mentionnées à l'article R. 522-6 tendent à l'agrément d'entrepôts exploités ou à exploiter dans la même agglomération et ont été déposées au cours du délai de trois mois, elles sont transmises à l'expiration de ce délai, avec les demandes de dérogation, nonobstant les dispositions de l'article R. 522-4 relatives aux délais de transmission. En pareil cas, l'avis des organismes mentionnés à l'article R. 522-4 porte sur l'ordre de préférence à établir entre les diverses demandes présentées.
Article R522-8
En statuant sur la demande d'agrément, le préfet vérifie la conformité du projet de règlement particulier qui est présenté avec les dispositions des règlements-types.
Article R522-9
Lorsque l'agrément d'un entrepôt comme magasin général fait l'objet d'un décret ou d'un arrêté ministériel, un exemplaire de ce décret ou de cet arrêté ministériel est notifié par les soins du préfet à la Fédération nationale des prestataires logistiques et des magasins généraux agréés par l'Etat et à la chambre de commerce et d'industrie dans la circonscription de laquelle est situé l'entrepôt intéressé.
Article R522-10
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Le cautionnement imposé par l'arrêté du préfet est fixé à 3,18 par mètre carré de plancher du magasin et 1,06 euro par mètre carré de chantier, avec un minimum de 212 euros et un maximum de 2 120 euros, applicable à l'ensemble des établissements exploités dans une même commune.
Article R522-11
Le cautionnement peut être fourni en totalité ou en partie en argent, en rentes, en valeurs admises à la négociation sur un marché réglementé, ou par une première hypothèque sur des immeubles d'une valeur double de la somme garantie. Il peut également être fourni en totalité par l'un des établissements de crédit habilité à cet effet ou l'une des institutions ou l'un des établissements mentionnés à l'article L. 518-1 du code monétaire et financier, avec l'agrément du tribunal de commerce dans le ressort duquel est situé le magasin.
Le cautionnement fourni en argent ou en valeurs résulte d'une consignation ou d'une inscription à un compte ouvert à la Caisse des dépôts et consignations au nom de la personne de l'exploitant. Si le cautionnement est représenté par une hypothèque, la valeur des immeubles est estimée par le directeur des services fiscaux sur les bases établies pour la perception des droits de mutation en cas de décès.
Pour la conservation de cette garantie, une inscription est prise, dans l'intérêt des tiers, à la diligence et au nom du directeur des services fiscaux.
Article R522-12
Les droits de l'exploitant pour le compte duquel l'établissement est vendu ainsi que ceux de ses créanciers se règlent conformément aux dispositions du titre IV du livre Ier relatives à la vente et au nantissement du fonds de commerce.
Section 2 : Des obligations, des responsabilités et des garanties.
Article R522-13
Le ou les règlements-types prévus à l'article L. 522-13 sont élaborés et modifiés par la Fédération nationale des prestataires logistiques et des magasins généraux agrées par l'Etat et soumis à l'homologation du ministre chargé de l'industrie.
Ces règlements comportent pour l'exploitant l'obligation de mettre par priorité et sans préférence ni faveur les emplacements de l'entrepôt disponibles à la présentation de la marchandise à la disposition des personnes voulant opérer le magasinage dans les conditions fixées par les articles L. 522-14 à L. 522-19.
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Toutefois, ils peuvent prévoir l'affectation des magasins exclusivement à certaines catégories de marchandises, notamment au regard de leur classement dans les tarifs généraux des compagnies d'assurances contre l'incendie. Ils peuvent également laisser la faculté au magasinier de refuser l'entrée ou le maintien en entrepôt de marchandises qui, par leur état ou leur nature, sont susceptibles de nuire à la bonne conservation des autres marchandises.
Article R522-14
Si les frais de magasinage et débours afférents aux marchandises prises en magasin général n'ont pas été payés pendant une durée que fixe le règlement-type professionnel selon la nature de la marchandise, la vente aux enchères publiques peut, après sommation au déposant, être ordonnée par le président du tribunal de commerce par ordonnance sur requête, sans préjudice des mesures rendues nécessaires par l'état des marchandises. Le juge attribue le produit de la vente au magasin général à concurrence des frais qui lui sont dus. Le surplus est consigné à l'administration du magasin général à la disposition des tiers porteurs du warrant et du récépissé.
Article R522-15
Les tarifs annexés au règlement particulier de l'établissement comprennent le coût de l'assurance incendie, qui s'ajoute au coût du magasinage.
Les polices souscrites par l'exploitant doivent comporter de la part des compagnies d'assurances la renonciation à tout recours contre les déposants.
Section 3 : Du fonctionnement et du contrôle.
Article R522-16
Les magasins généraux sont soumis aux mesures générales de police concernant les lieux publics affectés au commerce, sans préjudice des droits du service des douanes lorsqu'ils sont établis dans des locaux placés sous les régimes des entrepôts douaniers prévu par le règlement (CEE) n° 2913/92 du Conseil du 12 octobre 1992 établissant le code des douanes communautaire, et du règlement (CEE) n° 2454/93 de la Commission du 2 juillet 1993 fixant certaines de ses dispositions d'application, et le régime de l'entrepôt fiscal prévu par le code général des impôts.
Article R522-17
Le préfet surveille l'activité des magasins généraux et contrôle la régularité de leur fonctionnement.
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Il a libre accès aux établissements placés sous son contrôle et peut procéder ou faire procéder à toutes les vérifications et enquêtes nécessaires à l'accomplissement de sa mission.
Lorsque l'exploitant est une société, le préfet reçoit communication de toutes modifications intervenues dans la présidence ou la gérance, dans le mois qui suit l'entrée en fonction du nouveau président ou gérant.
Article R522-18
Les exploitants de magasins généraux sont tenus d'adresser dans le premier mois de chaque année, à l'inspecteur général de l'industrie et du commerce dans la circonscription duquel sont situés leurs établissements, un compte rendu général de leur activité au cours de l'année écoulée.
A ce compte rendu est joint un état indiquant :
1° Le niveau maximum atteint par les stocks des principales marchandises entreposées, suivant une liste qui est fixée pour la région par l'inspection générale de l'industrie et du commerce sur la proposition de la Fédération nationale des prestataires logistiques et des magasins généraux agréés par l'Etat ;
2° Le montant des avances transcrites sur les warrants.
Article R522-19
L'inspection générale de l'industrie et du commerce a délégation permanente pour exercer la surveillance et le contrôle des magasins généraux agréés incombant au préfet, dans les conditions prévues à l'article R. 522-17.
L'inspection générale de l'industrie et du commerce informe le préfet des infractions constatées. Le préfet en rend compte à l'autorité qui a contresigné le décret ou pris l'arrêté d'agrément en lui proposant, le cas échéant, le retrait de l'agrément dans les cas et formes prévus à l'article L. 522-39.
Section 4 : Des récépissés et des warrants.
Article R522-20
Les récépissés et warrants délivrés par l'exploitant comportent au recto la mention de l'assurance de la marchandise contre l'incendie par les polices générales du magasin.
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Article R522-21
A toute réquisition du porteur du récépissé et du warrant réunis, la marchandise déposée est fractionnée en autant de fois qu'il lui convient, et le titre d'origine remplacé par autant de récépissés et de warrants qu'il y a de lots.
Article R522-22
L'administration du magasin général liquide sur la demande du porteur du récépissé ou du warrant les dettes et les frais énumérés à l'article L. 522-32 et dont le privilège prime celui de la créance garantie sur le warrant. Le bordereau de liquidation délivré par l'administration du magasin général porte les numéros du récépissé et du warrant auxquels il se réfère.
Article R522-23
Sur la présentation du warrant protesté, l'administration du magasin général donne au courtier désigné pour la vente par le porteur du warrant toutes facilités pour y procéder.
Elle ne délivre la marchandise à l'acheteur que sur présentation du procès-verbal de la vente et moyennant :
1° La justification du paiement des droits et frais privilégiés, ainsi que le montant de la somme revenant au porteur du warrant dans la limite de la somme prêtée ;
2° La consignation de l'excédent, s'il en existe, revenant au porteur du récépissé, dans le cas prévu au dernier paragraphe de l'article L. 522-32.
Article R522-24
Outre les livres ordinaires du commerce et le livre des récépissés et warrants, l'administration du magasin général tient un livret à souches destiné à constater les consignations qui peuvent lui être faites en vertu des articles L. 522-30 et L. 522-32.
Tous ces livres sont cotés et paraphés, par première et dernière feuilles.
Section 5 : Des sanctions.
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Article R522-25
La procédure d'aliénation du magasin général prévue au troisième alinéa de l'article L. 522-39 est engagée dans les trois mois de la décision du retrait d'agrément à titre définitif prise par le préfet. Cette aliénation peut être opérée soit par adjudication, soit par voie de cession amiable. Toutefois, il ne peut être procédé à l'amiable lorsque le chiffre d'affaires réalisé dans le magasin général au cours de l'exercice précédent dépasse une somme fixée par le ministre chargé de l'industrie.
Seules peuvent se présenter à l'adjudication ou acquérir l'établissement à l'amiable les personnes qui y sont autorisées par le préfet.
Chapitre III : Du warrant hôtelier.
Article R523-1
Le volant et la souche du registre prévu à l'article L. 523-3 portent chacun les mentions suivantes :
1° Les nom, profession et domicile des parties ;
2° La nature des objets mis en gage, les indications propres à les identifier et à déterminer leur valeur, ainsi que le lieu de leur situation ;
3° L'inexistence d'aucun privilège de vendeur, de nantissement ou de gage sur lesdits objets ;
4° Le nom de la compagnie à laquelle ils sont assurés, ainsi que l'immeuble, pendant toute la durée du prêt, contre l'incendie ;
5° Le montant de la créance garantie et la date de son échéance, ainsi que toutes les clauses et conditions particulières convenues entre les parties ;
6° La date de la notification de l'acte extrajudiciaire adressé au propriétaire, à l'usufruitier ou à leur mandataire légal, et celle de leur réponse ;
7° Le montant du loyer annuel de l'hôtel et la justification que les loyers énumérés à l'article L. 523-2 ont été acquittés.
Chapitre IV : Du warrant pétrolier.
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Article R524-1
Le greffier du tribunal de commerce transcrit sur un registre spécial le warrant pétrolier et mentionne sur ce warrant pétrolier le volume et le numéro de la transcription, avec la mention des warrants préexistant sur les mêmes stocks de produits.
Chapitre V : Du nantissement de l'outillage et du matériel d'équipement.
Article R525-1
L'inscription du privilège prévue à l'article L. 525-1 est, lorsque l'acquéreur n'a pas la qualité de commerçant, soumise aux formalités fixées aux articles R. 525-2 à R. 525-7.
Article R525-2
Pour inscrire son privilège, le créancier nanti présente lui-même ou fait présenter par un tiers au greffier du tribunal de commerce dans le ressort duquel est domicilié l'acquéreur du bien grevé l'un des originaux de l'acte de vente ou de prêt, constitutif du nantissement, s'il est sous seing privé, ou d'une expédition s'il existe en minute. L'acte sous seing privé reste déposé au greffe.
Il est joint par le créancier nanti deux bordereaux sur papier non timbré, dont la forme est déterminée par arrêté du garde des sceaux, ministre de la justice.
Article R525-3
Le papier sur lequel sont établis les bordereaux est fourni par les greffiers aux frais des requérants. Toutefois, les officiers publics ou ministériels peuvent se le procurer eux-mêmes. Ces bordereaux contiennent :
1° Les nom, prénoms et domicile du créancier et du débiteur, leur profession s'ils en ont une ;
2° La date et la nature du titre ;
3° Le montant de la créance exprimée dans le titre, les conditions relatives aux intérêts et à l'exigibilité ;
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4° Le lieu où le matériel est placé et éventuellement la mention que ledit matériel est susceptible d'être déplacé ;
5° Election du domicile par le créancier nanti dans le ressort du tribunal au greffe duquel l'inscription est requise.
Article R525-4
Le greffier remet au requérant tant l'expédition du titre que l'un des bordereaux prévus à l'article R. 525-2, après l'avoir revêtu, dès sa réception, de la mention d'inscription, qui comprend la date de celle-ci et le numéro sous lequel elle a été effectuée.
L'autre bordereau, portant les mêmes mentions, est conservé au greffe.
Article R525-5
Les greffiers sont tenus d'enliasser et de relier à leurs frais les bordereaux qu'ils conservent en application de l'article R. 525-4.
Ils tiennent un fichier alphabétique des noms des débiteurs avec l'indication des numéros des inscriptions les concernant.
Article R525-6
Les pièces mentionnées à l'article R. 525-2 reçoivent un numéro d'entrée au moment de leur production.
Ces pièces sont enregistrées sur le registre à souches prévu à l'article R. 143-9 ; il en est délivré un récépissé extrait dudit registre et mentionnant :
1° Le numéro d'entrée apposé sur les pièces ;
2° La date du dépôt des pièces ;
3° Le nombre et la nature de ces pièces avec l'indication du but de ce dépôt ;
4° Le nom des parties ;
5° La nature et la situation du bien grevé et, éventuellement, la mention qu'il est susceptible d'être
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déplacé.
Le récépissé est daté et signé par le greffier, auquel il est rendu contre remise de la pièce portant, conformément à l'article R. 525-4, la certification que l'inscription du privilège a été effectuée.
Article R525-7
Le dépôt des actes sous seing privé prévu à l'article R. 525-2 est constaté sur le registre mentionné à l'article R. 143-7.
Dans la seconde colonne de ce registre est inscrit le procès-verbal du dépôt contenant la date à laquelle ce dernier a été fait, la mention, la date et le coût de l'enregistrement de l'acte, son numéro d'entrée, sa nature, l'indication du nom du créancier et du débiteur, la nature et la situation du bien grevé et, s'il y a lieu, la mention qu'il est susceptible d'être déplacé.
Ce procès-verbal est signé par le greffier.
Article R525-8
Lorsque l'acquéreur du bien grevé est commerçant, les bordereaux prévus à l'article R. 143-8 doivent indiquer, avec la situation du fonds, le lieu où le matériel grevé est placé et, éventuellement, la mention que le matériel est susceptible d'être déplacé.
Les pièces désignées audit article sont enregistrées sur le registre mentionné à l'article R. 143-9.
Le greffier procède comme il est dit à l'article R. 525-4.
Le dépôt des actes sous seing privé est constaté sur le registre prévu à l'article R. 143-7.
Chapitre VI : De la protection de l'entrepreneur individuel et du conjoint.
Article R526-1
Conformément à l'article R. 123-37, la déclaration d'insaisissabilité des droits de la personne physique demandant l'immatriculation au registre du commerce et des sociétés sur l'immeuble où est fixée sa résidence principale ou sur tout bien foncier non affecté à son usage professionnel, prévue par les articles L. 526-1 et suivants ainsi que la mention du lieu de la publication de cette déclaration sont indiquées dans la demande d'immatriculation.
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Article R526-2
Conformément aux dispositions de l'article R. 123-45 et du 2° de l'article R. 123-46, doivent, dans un délai d'un mois, faire l'objet d'une demande d'inscription modificative au registre du commerce et des sociétés : 1° La déclaration d'insaisissabilité des droits de la personne physique immatriculée, sur l'immeuble où est fixée sa résidence principale ou sur tout bien foncier non affecté à son usage professionnel, prévue à l'article L. 526-1 ; 2° La déclaration de remploi des fonds prévue à l'article L. 526-3 ; 3° La renonciation à la déclaration d'insaisissabilité ou de remploi prévue au quatrième alinéa de l'article L. 526-3.
Chapitre VII : Du gage des stocks.
Section 1 : Des formalités d'inscription.
Article R527-1
Pour inscrire son gage, le créancier remet ou adresse au greffier du tribunal de commerce dans le ressort duquel le constituant a son siège ou son domicile l'un des originaux de l'acte constitutif du gage ou une expédition s'il est établi sous forme authentique.
Article R527-2
Le bordereau en deux exemplaires est joint à l'acte mentionné à l'article R. 527-1.
Il comporte :
1° La désignation des parties :
a) Pour l'établissement de crédit créancier : sa forme, sa dénomination sociale, l'adresse de son siège social et son numéro unique d'identification complété par la mention RCS suivie du nom de la ville où se trouve le greffe où il est immatriculé ;
b) Pour le constituant :
- s'il s'agit d'une personne physique : ses nom, prénoms, date et lieu de naissance, domicile et l'indication du lieu d'exercice de son activité ou de son exploitation principale, ainsi que, le cas échéant, son numéro unique d'identification complété, s'il y a lieu, par la mention RCS suivie du
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nom de la ville où se trouve le greffe où elle est immatriculée ;
- s'il s'agit d'une personne morale : sa forme, sa dénomination sociale, l'adresse de son siège social et son numéro unique d'identification complété, le cas échéant, par la mention RCS suivie du nom de la ville où se trouve le greffe où elle est immatriculée ;
2° La date de l'acte constitutif du gage et l'indication qu'il porte sur des stocks ;
3° Le montant de la créance garantie en principal, la date de son exigibilité et l'indication du taux des intérêts ; pour les créances futures, le bordereau mentionne les éléments permettant de les déterminer ;
4° Une description des stocks présents ou futurs engagés, en nature, qualité, quantité et valeur, ainsi que, le cas échéant, la mention que la part des stocks engagés diminue à proportion du désintéressement du créancier ;
5° Le lieu de conservation des stocks engagés et, le cas échéant, la désignation du gardien.
Article R527-3
Le dépôt de l'acte constitutif du gage est constaté sur un registre spécial tenu par le greffier, qui attribue à l'acte un numéro d'ordre.
Ce registre peut être tenu sous forme électronique. Dans ce cas, il est fait usage d'une signature électronique sécurisée dans les conditions prévues par l'article 1316-4 du code civil et le décret du 30 mars 2001 pris pour son application.
Article R527-4
L'inscription du gage est mentionnée sur les bordereaux. La mention comprend la date de l'inscription et le numéro sous lequel elle a été faite.
Le greffier remet ou adresse au requérant l'un des bordereaux, au bas duquel il certifie que l'inscription a été faite.
L'autre bordereau, portant les mêmes mentions, est conservé au greffe, aux frais du greffier, avec l'acte constitutif du gage si celui-ci est rédigé sous seing privé.
Article R527-5
Le greffier tient un fichier alphabétique des noms des débiteurs avec l'indication des numéros des
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inscriptions les concernant. Ce fichier peut être tenu sous forme informatique.
Section 2 : Des formalités modificatives.
Article R527-6
La demande d'inscription modificative ou de radiation est portée devant le greffier du tribunal de commerce auprès duquel le gage est inscrit.
Le bordereau d'inscription modificative est établi par le requérant en deux exemplaires et est déposé ou adressé au greffe par ses soins.
Dès leur réception, le greffier complète les exemplaires par la mention de la date à laquelle l'inscription modificative est faite et du numéro sous lequel cette inscription est portée au registre.
L'un de ces bordereaux est remis ou adressé au requérant, l'autre est conservé au greffe, aux frais du greffier, avec l'acte modificatif si celui-ci est rédigé sous seing privé.
Le greffier porte la référence de la modification en marge du bordereau d'inscription initiale.
Article R527-7
Les modifications affectant les renseignements mentionnés à l'article R. 527-2 sont publiées en marge de l'inscription existante.
Article R527-8
Lorsque la modification intervenue implique la compétence du greffe d'un tribunal autre que celui mentionné à l'article R. 527-1, le débiteur fait reporter l'inscription modifiée sur le registre du greffe de ce tribunal. Cette inscription est subordonnée à la justification que le débiteur a informé le créancier de ce changement par lettre recommandée avec demande d'avis de réception.
L'inscription initiale est reportée sur le registre du greffe du tribunal nouvellement compétent et radiée du registre initial.
Section 3 : Des effets de l'inscription.
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Article R527-9
Les inscriptions régulièrement faites en application des articles R. 527-1 à R. 527-8 prennent effet à leur date.
Article R527-10
L'inscription conserve le gage pendant cinq ans à compter du jour de sa date. Son effet cesse si l'inscription n'a pas été renouvelée avant l'expiration de ce délai. Dans ce cas, le greffier procède d'office à la radiation de l'inscription.
Section 4 : De la radiation de l'inscription.
Article R527-11
La radiation de l'inscription peut être requise par le créancier ou le constituant sur justification de l'accord des parties ou d'un acte donnant mainlevée de l'inscription. Elle peut également intervenir en vertu d'une décision passée en force de chose jugée.
La radiation est faite au moyen d'une mention faite par le greffier en marge de l'inscription.
Le greffier délivre à la personne qui le requiert, à ses frais, un certificat de radiation.
L'inscription radiée ou périmée n'est plus portée sur les états d'inscription.
Section 5 : Des obligations des greffiers.
Article R527-12
Le greffier chargé de la tenue du registre délivre à tous ceux qui le requièrent l'état des inscriptions existant sur les stocks engagés ou un état mentionnant qu'il n'en existe aucune.
Les requérants doivent former autant de demandes qu'il y a de débiteurs et de stocks engagés.
L'état est établi sous forme de copies ou extraits, aux frais du requérant.
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Article R527-13
Le greffier ne peut refuser les inscriptions et la délivrance des états requis. Il ne peut davantage retarder ces formalités.
Toutefois le greffier est tenu de rejeter les demandes d'inscription, de modification ou de radiation qui ne répondent pas aux conditions prévues par les articles R. 527-1, R. 527-2, R. 527-6, R. 527-8 et R. 527-11. Le rejet précise le motif du refus. Il est notifié au requérant par lettre recommandée avec demande d'avis de réception ou remis contre récépissé à ce dernier. Il mentionne la possibilité pour le requérant de former un recours contre le rejet de la demande dans un délai de quinze jours à compter de sa notification.
Section 6 : Des recours.
Article R527-14
Les recours contre les décisions de refus d'inscription ou d'enregistrement des modifications ou de radiation sont portés devant le président du tribunal dont dépend le greffier qui a opposé le refus. Ils sont formés par lettre recommandée avec demande d'avis de réception adressée au greffe.
Ils sont motivés et accompagnés de toutes pièces utiles.
Le président de la juridiction ou le juge délégué à cet effet statue par ordonnance, au vu de la décision et des éléments produits.
Article R527-15
Les ordonnances rendues par le président de la juridiction ou le juge délégué sont notifiées par lettre recommandée avec demande d'avis de réception au requérant.
Elles sont susceptibles d'appel dans un délai de quinze jours.
La notification indique la forme et le délai du recours.
Article R527-16
L' appel des ordonnances est formé, instruit et jugé comme en matière gracieuse selon les dispositions des articles 950 à 953 du code de procédure civile. Toutefois, la partie est dispensée du
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ministère d' avocat ou d' avoué.
Le greffier de la cour d' appel adresse une copie de l' arrêt au greffier chargé de la tenue du registre.
Section 7 : Dispositions diverses.
Article R527-17
La mise en demeure prévue au troisième alinéa de l'article L. 527-7 est faite par lettre recommandée avec demande d'avis de réception adressée par le créancier au constituant. Celui-ci dispose d'un délai de quinze jours pour y satisfaire.
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Partie réglementaire
LIVRE VI : Des difficultés des entreprises.
Article R600-1
Sans préjudice des dispositions de l'article R. 662-7, le tribunal territorialement compétent pour connaître des procédures prévues par le livre VI de la partie législative du présent code est celui dans le ressort duquel le débiteur, personne morale, a son siège ou le débiteur, personne physique, a déclaré l'adresse de son entreprise ou de son activité. A défaut de siège en territoire français, le tribunal compétent est celui dans le ressort duquel le débiteur a le centre principal de ses intérêts en France.
Toutefois, en cas de changement de siège de la personne morale dans les six mois ayant précédé la saisine du tribunal, le tribunal dans le ressort duquel se trouvait le siège initial demeure seul compétent. Ce délai court à compter de l'inscription modificative au registre du commerce et des sociétés du siège initial.
Article R600-2
Les mesures prévues à l'article L. 611-2 relèvent de la compétence du président du tribunal du lieu du siège du débiteur, personne morale, ou, le cas échéant, du lieu où le débiteur, personne physique, a déclaré l'adresse de son entreprise ou de son activité.
La compétence territoriale du président du tribunal pour désigner un mandataire ad hoc est déterminée par l'article R. 600-1.
Article R600-3
Pour l'application de l'article L. 610-1, le siège et le ressort des juridictions commerciales et des tribunaux de grande instance compétents en métropole sont fixés conformément aux tableaux des annexes 6-1 et 6-2 du présent livre.
Article R600-4
Pour l'application de l'article L. 610-1, le siège et le ressort des juridictions commerciales et des tribunaux de grande instance compétents dans les départements d'outre-mer sont fixés conformément aux tableaux de l'annexe 6-3 et 6-4 du présent livre.
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Partie réglementaire
LIVRE VI : Des difficultés des entreprises.
TITRE Ier : De la prévention des difficultés des entreprises.
Chapitre Ier : De la prévention des difficultés des entreprises, du mandat ad hoc et de la procédure de conciliation.
Section 1 : Des groupements de prévention agréés.
Article D611-1
Pour bénéficier de l'agrément prévu à l'article L. 611-1, les groupements de prévention agréés doivent remplir les conditions prévues aux articles D. 611-2 à D. 611-8.
Article D611-2
Les groupements de prévention agréés sont constitués sous toute forme juridique qui leur confère une personnalité morale de droit privé.
Article D611-3
Les demandes d'agrément sont déposées auprès du préfet de la région dans laquelle le groupement a son siège ; il en accuse réception après s'être assuré que le dossier est complet.
Les demandes indiquent :
1° L'objet du groupement qui correspond à la mission définie à l'article L. 611-1 ;
2° Le ressort dans lequel il assure son activité, qui ne dépasse pas le cadre de la région dans laquelle il a son siège ;
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3° Les personnes morales appelées à adhérer au groupement ;
4° Les moyens dont dispose le groupement, et les personnes intervenant en son nom avec l'indication de leurs qualifications professionnelles ;
5° Les méthodes d'analyse des informations comptables et financières ainsi que leur fréquence.
Article D611-4
Toute demande d'agrément est accompagnée des documents suivants :
1° Un exemplaire des statuts et, le cas échéant, du règlement intérieur du groupement ;
2° La justification de l'exécution des formalités prévues par la législation en vigueur pour la création et la régularité du fonctionnement du groupement selon la forme juridique choisie ;
3° La liste des personnes qui dirigent, gèrent ou administrent le groupement avec, pour chacune d'elles, l'indication de leurs nom, prénoms, date et lieu de naissance, nationalité, domicile, profession et nature de l'activité exercée dans le groupement ;
4° Pour chacun des dirigeants, gérants, administrateurs, une attestation selon laquelle il n'a fait l'objet d'aucune incapacité d'exercer le commerce ou une profession, d'aucune interdiction de diriger, gérer, administrer, contrôler une personne morale ou une entreprise individuelle ou artisanale ;
5° Une copie certifiée conforme du contrat d'assurance mentionné à l'article D. 611-5 ;
6° L'engagement prévu à l'article D. 611-5.
Article D611-5
Les groupements s'engagent :
A ne faire aucune publicité, sauf dans les journaux et bulletins professionnels ;
A faire figurer sur leur correspondance et sur tous les documents établis par leurs soins leur qualité de groupements de prévention agréé et les références de la décision d'agrément ;
A informer le préfet des modifications apportées à leur statut et des changements intervenus en ce qui concerne les personnes qui dirigent, gèrent ou administrent les groupements dans le délai d'un
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mois à compter de la réalisation de ces modifications et changements ;
A exiger de toute personne collaborant à leurs travaux le respect du secret professionnel ;
A souscrire un contrat auprès d'une société d'assurances ou d'un assureur agréé les garantissant contre les conséquences pécuniaires de la responsabilité civile professionnelle qu'ils peuvent encourir en raison des négligences et fautes commises dans l'exercice de leurs activités ;
Au cas où l'agrément leur serait retiré, à en informer leurs adhérents dès réception de la notification de la décision de retrait.
Article D611-6
Le préfet de région dispose d'un délai de trois mois pour accorder ou refuser son agrément.
Le point de départ de ce délai est fixé au jour de la délivrance de l'accusé de réception précisant le caractère complet du dossier de demande déposé par le groupement.
Si le préfet de région n'a pas notifié sa réponse dans le délai qui lui est imparti, le groupement est réputé agréé.
Le retrait de l'agrément, prononcé par le préfet de région, est notifié par lettre au groupement et à toutes les administrations.
Article D611-7
L'agrément est accordé pour une durée maximale de trois ans renouvelable par arrêté du préfet de la région où est situé le siège du groupement.
La décision tient compte notamment :
De la conformité des objectifs du groupement à ceux définis par l'article L. 611-1 ;
De l'adéquation des moyens mis en oeuvre aux objectifs poursuivis ;
Des engagements souscrits en application de l'article D. 611-5, de leur respect en cas de demande de renouvellement ;
Des garanties de bonne moralité offertes par les dirigeants, gérants, administrateurs et toutes personnes intervenant au nom du groupement et de leur expérience dans l'analyse des informations comptables et financières ainsi que dans la gestion des entreprises.
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L'agrément peut être retiré, selon une procédure identique à celle de son octroi dès lors que les conditions fixées à l'article D. 611-5 ne sont plus respectées.
Article D611-8
Le groupement adresse au préfet de région un exemplaire des conventions conclues avec les établissements de crédit et les entreprises d'assurance en application du cinquième alinéa de l'article L. 611-1.
Article D611-9
Le concours que l'Etat et ses établissements publics peuvent prêter aux groupements est sollicité par ces derniers après accord écrit et formulé au cas par cas des entreprises adhérentes en cause.
Les renseignements nominatifs éventuellement délivrés conservent leur caractère confidentiel. L'inobservation de cette règle entraîne de plein droit le retrait de l'agrément dans les formes prévues pour son octroi.
Section 2 : De la détection des difficultés des entreprises par le président du tribunal de commerce.
Article R611-10
Dans le cas prévu au premier alinéa de l'article L. 611-2, le président du tribunal fait convoquer par le greffier le représentant légal de la personne morale débitrice ou le débiteur personne physique par lettre recommandée avec demande d'avis de réception et par lettre simple, reproduisant les termes du I de l'article L. 611-2 ainsi que des articles R. 611-11 et R. 611-12. La convocation est envoyée un mois au moins à l'avance. Il est joint une note par laquelle le président du tribunal expose les faits qui ont motivé son initiative.
Article R611-11
L'entretien prévu au premier alinéa de l'article L. 611-2, qui se tient hors la présence du greffier, donne lieu à l'établissement par le président du tribunal d'un procès-verbal qui ne mentionne que la date et le lieu de l'entretien ainsi que l'identité des personnes présentes. Ce procès-verbal est signé par ces dernières et le président du tribunal.
Si la personne convoquée ne se rend pas à la convocation, un procès-verbal de carence est dressé le
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jour même par le greffier aux fins d'application des dispositions du second alinéa du I de l'article L. 611-2. A ce procès-verbal est joint l'avis de réception de la convocation. Une copie de ce procès-verbal est notifiée sans délai par le greffier à la personne convoquée par lettre recommandée avec demande d'avis de réception reproduisant les termes du second alinéa du I de l'article L. 611-2.
Le procès-verbal établi en application des deux alinéas ci-dessus est déposé au greffe.
Article R611-12
La demande de renseignements prévue au deuxième alinéa de l'article L. 611-2 est adressée dans le délai d'un mois à compter de la date de l'entretien ou du procès-verbal de carence. Elle est accompagnée de la copie du procès-verbal d'entretien ou de carence établi en application de l'article R. 611-11.
Si la demande a été présentée dans les formes et délai prescrits au premier alinéa, les personnes et organismes interrogés communiquent les renseignements réclamés dans le délai d'un mois. Dans le cas contraire, ils ne sont pas tenus d'y répondre.
Article R611-13
Pour l'application du II de l'article L. 611-2, le président du tribunal rend une ordonnance faisant injonction au représentant légal de la personne morale de déposer les comptes annuels dans un délai d'un mois à compter de la notification ou de la signification de l'ordonnance, sous peine d'astreinte.
Cette ordonnance fixe le taux de l'astreinte et mentionne, en outre, les lieu, jour et heure de l'audience à laquelle l'affaire sera examinée.
Elle n'est pas susceptible de recours.
Article R611-14
Le greffier notifie l'ordonnance au représentant légal de la personne morale. La lettre de notification reproduit les dispositions du second alinéa du II de l'article L. 611-2 ainsi que l'article R. 611-15 et le premier alinéa de l'article R. 611-16.
Si la lettre est retournée avec une mention précisant qu'elle n'a pas été réclamée par son destinataire, le greffier fait signifier l'ordonnance. La signification reproduit les dispositions mentionnées à l'alinéa premier.
Si la lettre est retournée avec une mention précisant que le destinataire ne se trouve plus à l'adresse indiquée, l'affaire est retirée du rôle par le président du tribunal et le greffier porte la mention de la cessation d'activité sur le registre du commerce et des sociétés.
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L'ordonnance portant injonction de faire est conservée à titre de minute au greffe.
Article R611-15
Lorsque l'injonction de faire a été exécutée dans les délais impartis, l'affaire est retirée du rôle par le président du tribunal.
Dans le cas contraire, le greffier constate le non-dépôt des comptes par procès-verbal.
Article R611-16
En cas d'inexécution de l'injonction de faire qu'il a délivrée, le président du tribunal statue sur la liquidation de l'astreinte.
Il statue en dernier ressort lorsque le montant de l'astreinte n'excède pas le taux de compétence en dernier ressort du tribunal de commerce.
Le montant de la condamnation prononcée à l'encontre du représentant légal de la personne morale est versé au Trésor public et recouvré comme en matière de créances étrangères à l'impôt.
La décision est communiquée au Trésor public et signifiée à la diligence du greffier au représentant légal de la personne morale. L'appel est formé, instruit et jugé selon les règles applicables à la procédure sans représentation obligatoire.
Article R611-17
La demande de renseignements prévue au dernier alinéa de l'article L. 611-2 est adressée à compter de l'expiration du délai prévu au premier alinéa de l'article R. 611-13. Elle est écrite et accompagnée de la copie de l'ordonnance mentionnée à l'article R. 611-13 ainsi que du procès-verbal mentionné à l'article R. 611-15.
Si la demande a été présentée dans les formes et délai prescrits au premier alinéa, les personnes et organismes interrogés communiquent les renseignements réclamés dans le délai d'un mois. Dans le cas contraire, ils ne sont pas tenus d'y répondre.
Section 3 : Du mandat ad hoc.
Article R611-18
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La demande de désignation d'un mandataire ad hoc prévue à l'article L. 611-3 est présentée par écrit. Elle est adressée ou remise au président du tribunal de commerce ou du tribunal de grande instance selon le cas par le représentant légal de la personne morale ou par le débiteur personne physique et déposée au greffe.
Cette demande expose les raisons qui la motivent.
Lorsque le débiteur propose un mandataire ad hoc à la désignation du président du tribunal, il précise son identité et son adresse.
Article R611-19
Dès réception de la demande, le président du tribunal fait convoquer, par le greffier, le représentant légal de la personne morale ou le débiteur personne physique pour recueillir ses observations.
L'ordonnance qui désigne le mandataire ad hoc définit l'objet de sa mission et fixe les conditions de sa rémunération conformément aux dispositions de la section 5 du présent chapitre.
Article R611-20
La décision statuant sur la désignation du mandataire ad hoc est notifiée au demandeur. En cas de refus de désignation, celui-ci peut interjeter appel. L'appel est formé, instruit et jugé conformément aux dispositions de l'article R. 611-26.
La décision nommant le mandataire ad hoc est notifiée à ce dernier par le greffier. La lettre de notification reproduit les dispositions de l'article L. 611-13.
Le mandataire ad hoc fait connaître sans délai au président du tribunal son acceptation ou son refus. En cas d'acceptation, il lui adresse l'attestation sur l'honneur prévue à l'article L. 611-13.
Article R611-21
Lorsque le débiteur en fait la demande, le président du tribunal met fin sans délai à la mission du mandataire ad hoc.
Section 4 : De la procédure de conciliation.
Article R611-22
La requête aux fins d'ouverture d'une procédure de conciliation adressée ou remise au président du tribunal en application de l'article L. 611-6 est accompagnée, sous réserve des dispositions particulières applicables au débiteur, des pièces suivantes :
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1° Un extrait d'immatriculation aux registres et répertoires mentionnés à l'article R. 621-8 ou, le cas échéant, le numéro unique d'identification ;
2° L'état des créances et des dettes accompagné d'un échéancier ainsi que la liste des principaux créanciers ;
3° L'état actif et passif des sûretés ainsi que celui des engagements hors bilan ;
4° Les comptes annuels, le tableau de financement ainsi que la situation de l'actif réalisable et disponible, valeurs d'exploitation exclues, et du passif exigible des trois derniers exercices, si ces documents ont été établis ;
5° Une attestation sur l'honneur certifiant l'absence de procédure de conciliation dans les trois mois précédant la date de la demande.
Le cas échéant, la requête précise la date de cessation des paiements.
Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, elle précise l'ordre professionnel ou l'autorité dont il relève.
Lorsque le débiteur propose un conciliateur à la désignation du président du tribunal, il précise son identité et son adresse.
Article R611-23
Dès réception de la demande, le président du tribunal fait convoquer, par le greffier, le représentant légal de la personne morale débitrice ou le débiteur personne physique pour recueillir ses explications.
L'ordonnance qui désigne le conciliateur définit l'objet de sa mission et fixe les conditions de sa rémunération conformément aux dispositions de la section 5 du présent chapitre ainsi que la durée de la procédure conformément à l'article L. 611-6.
Article R611-24
Le président du tribunal peut faire usage des dispositions du cinquième alinéa de l'article L. 611-6 à tout moment de la procédure de conciliation.
Article R611-25
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L'ordonnance statuant sur la demande est notifiée par le greffier au requérant. En cas de désignation d'un conciliateur, la notification reproduit les dispositions des articles R. 611-27 et R. 611-28.
La décision ouvrant la procédure de conciliation est communiquée sans délai par le greffier au ministère public et, le cas échéant, à l'ordre professionnel ou à l'autorité dont relève le débiteur.
Elle est notifiée au conciliateur. La lettre de notification reproduit les dispositions de l'article L. 611-13 et des articles R. 611-27 et R. 611-28.
Le conciliateur fait connaître sans délai au président du tribunal son acceptation ou son refus. En cas d'acceptation, il lui adresse l'attestation sur l'honneur prévue à l'article L. 611-13.
Article R611-26
S'il n'est pas fait droit à la demande de désignation d'un conciliateur ou de prorogation de la mission de celui-ci, appel peut être interjeté par le débiteur par une déclaration faite ou adressée par lettre recommandée avec demande d'avis de réception au greffe du tribunal. Toutefois, le débiteur est dispensé du ministère de l'avocat ou de l'avoué.
Le président du tribunal peut, dans un délai de cinq jours à compter de la déclaration d'appel, modifier ou rétracter sa décision.
En cas de modification ou de rétractation, le greffier notifie la décision au débiteur.
Dans le cas contraire, le greffier du tribunal transmet sans délai au greffe de la cour le dossier de l'affaire avec la déclaration d'appel et une copie de la décision. Il avise le débiteur de cette transmission.
L'appel est instruit et jugé selon les règles applicables en matière gracieuse devant le tribunal de grande instance.
Article R611-26-1
L'appel interjeté par le ministère public à l'encontre de l'ordonnance qui ouvre la procédure de conciliation est instruit et jugé selon la procédure sans représentation obligatoire.
Article R611-27
En application de l'article L. 611-6, le débiteur peut demander la récusation du conciliateur si ce dernier se trouve dans l'une des situations suivantes :
1° Il a directement ou indirectement un intérêt personnel à la procédure ;
2° Il existe un lien direct ou indirect, quelle qu'en soit la nature, entre le conciliateur et l'un des créanciers ou l'un des dirigeants ou préposés de celui-ci ;
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3° Il existe une cause de défiance entre le conciliateur et le débiteur ;
4° Il est dans l'une des situations d'incompatibilité visées à l'article L. 611-13 ;
5° Il a été définitivement radié ou destitué d'une profession réglementée.
Article R611-28
La demande de récusation est formée dans les quinze jours de la notification de la décision désignant le conciliateur, par acte remis au greffe ou par une déclaration consignée par le greffier dans un procès-verbal.
Elle est motivée et, le cas échéant, accompagnée des pièces propres à la justifier.
Elle suspend la procédure jusqu'à ce qu'une décision définitive statue sur la récusation.
Article R611-29
Le greffier notifie la demande de récusation au conciliateur, par lettre recommandée avec demande d'avis de réception. La lettre de notification reproduit les deuxième et troisième alinéas du présent article.
Dès réception de la notification de la demande, le conciliateur s'abstient jusqu'à ce qu'il ait été statué sur la récusation.
Dans les huit jours de cette réception, il fait connaître par écrit au président du tribunal soit son acquiescement à la récusation, soit les motifs pour lesquels il s'y oppose.
Article R611-30
Si le conciliateur acquiesce, il est remplacé sans délai.
Article R611-31
Si le conciliateur s'oppose à la récusation ou ne répond pas, la demande est examinée par le président du tribunal, le débiteur et le conciliateur entendus ou dûment appelés.
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L'ordonnance statuant sur la demande de récusation est notifiée par le greffier au débiteur.
Copie de cette décision est également remise ou adressée au conciliateur.
Article R611-32
Si la récusation est admise, il est procédé au remplacement du conciliateur sans délai.
Article R611-33
La décision qui rejette la demande de récusation peut être frappée de recours par le débiteur devant le premier président de la cour d'appel dans un délai de dix jours à compter de la notification.
Le recours est formé par la remise ou l'envoi au greffe de la cour d'appel d'une note en exposant les motifs.
Article R611-34
Le greffier de la cour d'appel convoque le débiteur et le conciliateur par lettre recommandée avec demande d'avis de réception adressée quinze jours au moins à l'avance. La note mentionnée au second alinéa de l'article R. 611-33 est jointe à la convocation adressée au conciliateur.
Le premier président ou son délégué les entend contradictoirement.
La décision est notifiée par le greffier au débiteur. Le conciliateur en est avisé.
Article R611-35
Pour l'application de l'avant-dernier alinéa de l'article L. 611-7, le débiteur assigne le créancier poursuivant ou l'ayant mis en demeure devant le président du tribunal qui a ouvert la procédure de conciliation. Celui-ci statue sur les délais en la forme des référés après avoir recueilli les observations du conciliateur.
La demande est, le cas échéant, portée à la connaissance de la juridiction saisie de la poursuite, qui surseoit à statuer jusqu'à la décision se prononçant sur les délais.
La décision rendue par le président du tribunal est communiquée à cette juridiction par le greffier.
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Article R611-36
Le conciliateur peut demander au président du tribunal de mettre fin à sa mission lorsqu'il estime indispensables les propositions faites par lui au débiteur en application du premier alinéa de l'article L. 611-7 et que celui-ci les a rejetées.
Article R611-37
Lorsque le débiteur en fait la demande, le président du tribunal met fin sans délai à la procédure de conciliation.
Article R611-38
La décision mettant fin à la procédure de conciliation n'est pas susceptible de recours.
Article R611-39
En application du I de l'article L. 611-8, l'accord des parties est constaté par une ordonnance du président du tribunal qui y fait apposer la formule exécutoire par le greffier. La déclaration certifiée du débiteur lui est annexée.
L'accord et ses annexes sont déposés au greffe. Des copies ne peuvent être délivrées qu'aux parties et aux personnes qui peuvent se prévaloir des dispositions de l'accord. Elles valent titre exécutoire.
Article R611-40
Les personnes appelées à l'audience d'homologation en application du premier alinéa de l'article L. 611-9 peuvent prendre connaissance de l'accord au greffe du tribunal.
Le jugement ne reprend pas les termes de l'accord. Il mentionne les garanties et privilèges constitués pour en assurer l'exécution. Il précise les montants garantis par le privilège institué par l'article L. 611-11.
Article R611-41
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Le jugement statuant sur l'homologation de l'accord est notifié par le greffier au débiteur et aux créanciers signataires de l'accord. Il est communiqué au conciliateur et au ministère public.
Article R611-42
L'appel du jugement rejetant l'homologation est formé, instruit et jugé selon les règles propres à la procédure en matière gracieuse. Toutefois, les parties sont dispensées du ministère de l'avocat ou de l'avoué.
Dans les autres cas, l'appel est formé, instruit et jugé selon les règles propres à la procédure sans représentation obligatoire.
Article R611-43
Un avis du jugement d'homologation est adressé pour insertion au Bulletin officiel des annonces civiles et commerciales. Cette insertion contient l'indication du nom du débiteur, de son siège ou, lorsqu'il est une personne physique, de l'adresse de son entreprise ou de son activité. Il est également mentionné son numéro unique d'identification ainsi que, le cas échéant, le nom de la ville où se trouve le greffe ou la chambre de métiers et de l'artisanat où il est immatriculé.
Le même avis est publié dans un journal d'annonces légales du lieu où le débiteur a son siège ou, lorsqu'il est une personne physique, l'adresse de son entreprise ou de son activité.
Il mentionne que le jugement est déposé au greffe où tout intéressé peut en prendre connaissance.
Ces publicités sont faites d'office par le greffier dans les huit jours de la date du jugement.
Article R611-44
Sous réserve de l'instance ouverte par la tierce opposition mentionnée à l'article L. 611-10, et en dehors de l'autorité judiciaire, à qui l'accord homologué et le rapport d'expertise peuvent être communiqués en application de l'article L. 621-1, l'accord ne peut être communiqué qu'aux parties et aux personnes qui peuvent s'en prévaloir et le rapport d'expertise qu'au débiteur et au conciliateur.
L'accord homologué est transmis par le greffier au commissaire aux comptes du débiteur.
Article R611-45
Pour l'application du deuxième alinéa de l'article L. 611-10-2, le débiteur justifie de la levée de l'interdiction d'émettre des chèques auprès de l'établissement de crédit qui est à l'origine de cette
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mesure par la remise d'une copie du jugement homologuant l'accord, à laquelle il joint un relevé des incidents de paiement.
L'établissement de crédit qui est à l'origine de l'interdiction informe la Banque de France de la levée de cette interdiction aux fins de régularisation.
Article R611-46
La demande de résolution de l'accord constaté ou homologué présentée en application de l'article L. 611-10-3 est formée par assignation. Toutes les parties à l'accord ainsi que les créanciers auxquels des délais de paiement ont été imposés en application du cinquième alinéa de l'article L. 611-7 sont mis en cause par le demandeur, le cas échéant sur injonction du tribunal.
Le jugement rendu est communiqué au ministère public et notifié par le greffier aux créanciers mentionnés à l'alinéa précédent.
La décision prononçant la résolution de l'accord homologué fait l'objet des publicités prévues à l'article R. 611-43.
Section 5 : De la rémunération du mandataire ad hoc, du conciliateur et de l'expert.
Article R611-47
Les conditions de rémunération du mandataire ad hoc, du conciliateur et de l'expert mentionnées à l'article L. 611-14 comprennent les critères sur la base desquels elle sera arrêtée, son montant maximal et le montant des provisions.
Article R611-48
L'accord du débiteur sur les conditions de rémunération du mandataire ad hoc, du conciliateur ou de l'expert est consigné par écrit préalablement à leur désignation. Il est annexé à l'ordonnance de désignation.
Article R611-49
Si le mandataire ad hoc, le conciliateur ou l'expert estime au cours de sa mission que le montant maximal de la rémunération fixé par l'ordonnance qui l'a désigné est insuffisant, il en informe le président du tribunal.
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Le président du tribunal fixe les nouvelles conditions de la rémunération en accord avec le débiteur. L'accord est consigné par écrit.
A défaut d'accord, il est mis fin à sa mission.
Article R611-50
Le greffier notifie l' ordonnance arrêtant la rémunération au mandataire ad hoc, au conciliateur et à l' expert, ainsi qu' au débiteur.
Elle peut être frappée d' un recours par le débiteur, le mandataire ad hoc, le conciliateur ou l' expert devant le premier président de la cour d' appel.
Le recours est formé, instruit et jugé dans les délais et conditions prévus par les articles 714 à 718 du code de procédure civile.
Chapitre II : Des dispositions applicables aux personnes morales de droit privé non commerçantes ayant une activité économique.
Article R612-1
Les personnes morales de droit privé non commerçantes ayant une activité économique, mentionnées à l'article L. 612-1, sont tenues d'établir des comptes annuels et de désigner au moins un commissaire aux comptes et un suppléant lorsqu'elles dépassent, à la fin de l'année civile ou à la clôture de l'exercice, les chiffres ci-dessous fixés pour deux des trois critères suivants :
1° Cinquante pour le nombre de salariés ; les salariés pris en compte sont ceux qui sont liés à la personne morale par un contrat de travail à durée indéterminée ; le nombre de salariés est égal à la moyenne arithmétique des effectifs à la fin de chaque trimestre de l'année civile ou de l'exercice comptable lorsque celui-ci ne coïncide pas avec l'année civile ;
2° 3 100 000 euros pour le montant hors taxes du chiffre d'affaires ou des ressources ; le montant hors taxes du chiffre d'affaires est égal au montant des ventes de produits et services liés à l'activité courante ; le montant des ressources est égal au montant des cotisations, subventions et produits de toute nature liés à l'activité courante ; toutefois, pour les associations professionnelles ou interprofessionnelles collectant la participation des employeurs à l'effort de construction, le montant des ressources, qui s'entendent des sommes recueillies au sens de l'article R. 313-25 du code de la construction et de l'habitation, est fixé à 750 000 euros ;
3° 1 550 000 euros pour le total du bilan ; celui-ci est égal à la somme des montants nets des éléments d'actif.
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Les personnes morales mentionnées au premier alinéa ne sont plus tenues à l'obligation d'établir des comptes annuels lorsqu'elles ne dépassent pas les chiffres fixés pour deux des trois critères définis ci-dessus pendant deux exercices successifs. Il est mis fin dans les mêmes conditions au mandat du commissaire aux comptes par l'organe délibérant appelé à statuer sur les comptes annuels.
Les dispositions du présent article relatives à l'établissement de comptes annuels ou à la désignation d'un commissaire aux comptes s'appliquent sans préjudice des dispositions réglementaires propres à certaines formes de personnes morales entrant dans l'une des catégories mentionnées à l'article L. 612-1.
Article R612-2
Les comptes annuels comprennent un bilan, un compte de résultat et une annexe. Ils sont établis selon les principes et méthodes comptables définis aux articles L. 123-12 et suivants et aux articles R. 123-172 à R. 123-208 pris pour leur application, sous réserve des adaptations que rend nécessaires la forme juridique ou la nature de l'activité de ces personnes morales. Les plans comptables applicables à ces personnes morales sont fixés par règlement de l'Autorité des normes comptables. Si des particularités d'activité, de structure ou d'opérations le justifient, des adaptations peuvent être apportées, dans les mêmes formes, aux dispositions de ces plans comptables.
Les comptes annuels sont soumis, en même temps qu'un rapport de gestion, à l'approbation de l'organe délibérant au plus tard dans les six mois de la clôture de l'exercice et transmis aux commissaires aux comptes quarante-cinq jours au moins avant la réunion à laquelle ils doivent être approuvés. Le délai de six mois peut être prolongé à la demande du représentant légal de la personne morale, par ordonnance du président du tribunal de grande instance, statuant sur requête.
Article R612-3
Les personnes morales de droit privé non commerçantes ayant une activité économique qui, à la fin de l'année civile ou à la clôture de l'exercice, comptent trois cents salariés ou plus ou dont le montant du chiffre d'affaires hors taxes ou des ressources est supérieur ou égal à 18 000 000 euros, sont tenues d'établir les documents mentionnés à l'article L. 612-2. Ces critères sont définis selon les dispositions prévues à l'article R. 612-1.
Elles ne sont plus tenues à cette obligation lorsqu'elles ne dépassent aucun des chiffres fixés pour ces critères pendant deux exercices successifs.
Les dispositions des articles R. 232-3 à R. 232-7 sont applicables, sous réserve des adaptations que rend nécessaires la forme juridique de ces personnes morales.
Article R612-4
Lorsque le commissaire aux comptes met en oeuvre la procédure d'alerte prévue à l'article L. 612-3, il est fait application soit des dispositions des articles R. 234-1 et suivants si la personne morale a
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un organe collégial chargé de l'administration distinct de l'organe chargé de la direction, soit des articles R. 234-5 et suivants dans les autres cas.
Pour l'application de ces deux dispositions, le président du tribunal compétent est celui du tribunal de grande instance.
Article D612-5
Le montant visé au premier alinéa de l'article L. 612-4 est fixé à 153 000 euros.
Article R612-6
Le rapport mentionné au premier alinéa de l'article L. 612-5 contient :
1° L'énumération des conventions soumises à l'approbation de l'organe délibérant ou jointes aux documents communiqués aux adhérents en l'absence d'organe délibérant ;
2° Le nom des administrateurs intéressés ou des personnes intéressées assurant un rôle de mandataire social ;
3° La désignation de la personne ayant passé une convention dans les conditions du deuxième alinéa de l'article L. 612-5 ;
4° La nature et l'objet desdites conventions ;
5° Les modalités essentielles de ces conventions notamment l'indication des prix ou tarifs pratiqués, des ristournes et commissions consenties, des délais de paiement accordés, des intérêts stipulés, des sûretés conférées et, le cas échéant, toutes autres indications permettant à l'organe délibérant ou aux adhérents d'apprécier l'intérêt qui s'attachait à la conclusion des conventions analysées.
Article R612-7
Lorsque le rapport est établi par le commissaire aux comptes, le représentant légal de la personne morale avise ce dernier des conventions mentionnées à l'article L. 612-5 dans le délai d'un mois à compter de la conclusion desdites conventions.
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Partie réglementaire
LIVRE VI : Des difficultés des entreprises.
TITRE II : De la sauvegarde.
Chapitre Ier : De l'ouverture de la procédure.
Section 1 : De la saisine et de la décision du tribunal.
Article R621-1
La demande d'ouverture de la procédure de sauvegarde est déposée par le représentant légal de la personne morale ou par le débiteur personne physique au greffe du tribunal compétent. Elle expose la nature des difficultés qu'il rencontre et les raisons pour lesquelles il n'est pas en mesure de les surmonter. Elle précise s'il s'engage à établir l'inventaire dans les conditions prévues à l'article L. 622-6-1 ainsi que le délai nécessaire à l'établissement de celui-ci ou s'il demande la désignation par le tribunal d'une personne chargée de réaliser l'inventaire en application du sixième alinéa de l'article L. 621-4.
A cette demande sont jointes, outre les comptes annuels du dernier exercice, les pièces ci-après :
1° Un extrait d'immatriculation aux registres et répertoires mentionnés à l'article R. 621-8 ou, le cas échéant, le numéro unique d'identification ;
2° Une situation de trésorerie ;
3° Un compte de résultat prévisionnel ;
4° Le nombre des salariés employés à la date de la demande et le montant du chiffre d'affaires, défini conformément aux dispositions du cinquième alinéa de l'article R. 123-200, apprécié à la date de clôture du dernier exercice comptable ;
5° L'état chiffré des créances et des dettes avec l'indication des noms et du domicile des créanciers ainsi que, par créancier ou débiteur, le montant total des sommes à payer et à recouvrer au cours d'une période de trente jours à compter de la demande ;
6° L'état actif et passif des sûretés ainsi que celui des engagements hors bilan ;
7° L'inventaire sommaire des biens du débiteur ;
8° Le nom et l'adresse des représentants du comité d'entreprise ou des délégués du personnel habilités à être entendus par le tribunal s'ils ont déjà été désignés ;
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9° Une attestation sur l'honneur certifiant l'absence de mandat ad hoc ou de procédure de conciliation dans les dix-huit mois précédant la date de la demande ou, dans le cas contraire, mentionnant la date de la désignation du mandataire ad hoc ou de l'ouverture de la procédure de conciliation ainsi que l'autorité qui y a procédé ;
10° Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, la désignation de l'ordre professionnel ou de l'autorité dont il relève ;
11° Lorsque le débiteur exploite une ou des installations classées au sens du titre Ier du livre V du code de l'environnement, la copie de la décision d'autorisation ou d'enregistrement ou la déclaration ;
12° Lorsque le débiteur propose un administrateur à la désignation du tribunal, l'indication de l'identité et de l'adresse de la personne concernée.
Ces documents doivent être datés, signés et certifiés sincères et véritables par le débiteur. Ceux qui sont mentionnés aux 1° à 7°, à l'exception du 4°, sont établis à la date de la demande ou dans les sept jours qui précèdent.
Dans le cas où l'un ou l'autre de ces documents ne peut être fourni ou ne peut l'être qu'incomplètement, la demande indique les motifs qui empêchent cette production.
Article R621-2
Avant qu'il ne soit statué sur l'ouverture de la procédure, le greffier, à la demande du président du tribunal, avise le représentant légal de la personne morale débitrice ou le débiteur personne physique qu'il doit réunir le comité d'entreprise ou, à défaut, les délégués du personnel, pour que soient désignées les personnes habilitées à être entendues par le tribunal et à exercer les voies de recours conformément à l'article L. 661-10. Une copie de cet avis est adressée par le greffier au secrétaire du comité d'entreprise ou, à défaut, aux délégués du personnel. Le procès-verbal de désignation est déposé au greffe.
Article R621-3
La décision du tribunal de commettre un juge, avant de statuer, en application de l'article L. 621-1, pour recueillir tous les renseignements sur la situation financière, économique et sociale de l'entreprise, est rendue dans les mêmes conditions que celles prévues aux deux premiers alinéas du même article, pour l'ouverture de la procédure.
Le rapport de ce juge, auquel est annexé le rapport de l'expert, lorsqu'il en a été désigné, est déposé au greffe et communiqué par le greffier au débiteur et au ministère public.
Le greffier informe le comité d'entreprise ou, à défaut, les délégués du personnel que leurs représentants peuvent prendre connaissance du rapport au greffe et les avise en même temps de la date de l'audience.
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Article R621-4
Le tribunal statue, le cas échéant, sur le rapport du juge commis. Si le jugement ne peut être rendu sur-le-champ, le prononcé en est renvoyé à une prochaine audience dont la date est communiquée, lors de l'audience, au débiteur.
Le jugement d'ouverture de la procédure prend effet à compter de sa date.
Article R621-5
Lorsqu'il apparaît que le débiteur ne remplit pas les conditions requises pour l'ouverture d'une procédure de sauvegarde, le tribunal rejette la demande.
S'il estime devoir se saisir d'office en vue de l'ouverture d'une procédure de redressement judiciaire ou de liquidation judiciaire, il est fait application des dispositions de l'article R. 631-3.
Article R621-6
Le jugement qui ouvre la procédure de sauvegarde est notifié au débiteur par le greffier dans les huit jours de la date du jugement.
Article R621-7
Le greffier adresse sans délai une copie du jugement ouvrant la procédure :
1° Aux mandataires de justice désignés ;
2° Au procureur de la République ;
3° Au trésorier-payeur général du département dans lequel le débiteur a son siège et à celui du département où se trouve le principal établissement.
Article R621-8
Le jugement d'ouverture de la procédure de sauvegarde est mentionné avec l'indication des pouvoirs conférés à l'administrateur, lorsqu'il en a été désigné, au registre du commerce et des sociétés s'il s'agit d'un commerçant ou d'une personne morale immatriculée à ce registre.
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A la demande du greffier du tribunal qui a ouvert la procédure, les mêmes mentions sont portées sur le répertoire des métiers ou sur le répertoire des entreprises dans les départements du Bas-Rhin, du Haut-Rhin et de la Moselle, s'il s'agit d'une entreprise artisanale.
S'il s'agit d'une personne non immatriculée au registre du commerce et des sociétés ou aux répertoires mentionnés au deuxième alinéa, les mentions sont portées sur un registre ouvert à cet effet au greffe du tribunal de grande instance. Dans ce cas, le greffier indique, selon le cas, le siège ou l'adresse du débiteur, les nom, prénoms et adresse du représentant légal de la personne morale débitrice ou du débiteur personne physique.
Un avis du jugement est adressé pour insertion au Bulletin officiel des annonces civiles et commerciales. Cette insertion contient l'indication du nom du débiteur, selon le cas de son siège ou de son adresse professionnelle, de son numéro unique d'identification ainsi que, s'il y a lieu, du nom de la ville du greffe ou de la chambre de métiers et de l'artisanat où il est immatriculé, de l'activité exercée et de la date du jugement qui a ouvert la procédure. Elle précise également le nom et l'adresse du mandataire judiciaire et de l'administrateur s'il en a été désigné avec, dans ce cas, l'indication des pouvoirs qui lui sont conférés. Elle comporte enfin l'avis aux créanciers d'avoir à déclarer leurs créances entre les mains du mandataire judiciaire et le délai imparti pour cette déclaration.
Le même avis est publié dans un journal d'annonces légales du lieu où le débiteur a son siège ou son adresse professionnelle et, le cas échéant, ses établissements secondaires.
Le greffier procède d'office à ces publicités dans les quinze jours de la date du jugement.
Article R621-8-1
Pour l'application du deuxième alinéa de l'article L. 621-2, le tribunal est saisi par voie d'assignation aux fins d'extension de la procédure ou, le cas échéant, dans les formes et selon la procédure prévues à l'article R. 631-3 ou R. 631-4.
Le jugement est signifié au débiteur soumis à la procédure et au débiteur visé par l'extension, à la diligence du greffier, dans les huit jours de son prononcé. Il est communiqué, dans le même délai, aux personnes citées à l'article R. 621-7.
Le jugement qui prononce l'extension fait l'objet des publicités prévues à l'article R. 621-8.
Article R621-9
La période d'observation ouverte par le jugement peut être exceptionnellement prolongée, en application de l'article L. 621-3, pour une durée maximale de six mois.
Le président fixe l'affaire au rôle du tribunal au plus tard dix jours avant l'expiration de chaque période d'observation. Le greffier convoque à cette audience le débiteur, les mandataires de justice,
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les contrôleurs et en avise le ministère public.
Le tribunal statue sur la prolongation de la période d'observation après avis du ministère public. Il recueille préalablement les observations du débiteur, de l'administrateur, du mandataire judiciaire et des contrôleurs.
La décision prolongeant la période d'observation est communiquée aux personnes mentionnées à l'article R. 621-7 et aux contrôleurs. Elle est mentionnée aux registres ou répertoires prévus à l'article R. 621-8.
Article R621-10
Dans le jugement d'ouverture ou à tout moment de la procédure, le tribunal peut désigner un juge-commissaire suppléant qui exerce les attributions du juge-commissaire momentanément empêché.
Article R621-11
Les seuils fixés en application du quatrième alinéa de l'article L. 621-4 sont pour le chiffre d'affaires hors taxes de 3 000 000 euros et pour le nombre de salariés de vingt.
Le montant du chiffre d'affaires est défini conformément aux dispositions du cinquième alinéa de l'article R. 123-200. Il est apprécié à la date de clôture du dernier exercice comptable.
Le nombre de salariés à prendre en compte est le nombre des salariés employés par le débiteur à la date de la demande d'ouverture de la procédure.
Article R621-12
Lorsque, en application des articles L. 811-2 ou L. 812-2, le tribunal désigne pour exercer les fonctions d'administrateur judiciaire ou de mandataire judiciaire une personne physique qui n'est pas inscrite sur l'une des listes prévues par ces articles, celle-ci lui adresse sans délai l'attestation sur l'honneur prévue au quatrième alinéa de l'article L. 811-2 ou au troisième alinéa du II de l'article L. 812-2, la justification de la garantie et de l'assurance prévues à l'article L. 814-5 ainsi que le nom du commissaire aux comptes assurant, en application de l'article L. 811-11-1, le contrôle de sa comptabilité spéciale.
Article R621-13
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Lorsque l'administrateur judiciaire ou le mandataire judiciaire désigné n'est pas inscrit sur l'une des listes prévues aux articles L. 811-2 ou L. 812-2, il est joint, par le greffier, à la copie du jugement mentionnée à l'article R. 621-7, un document reproduisant les termes selon le cas de l'article L. 811-2 ou de l'article L. 812-2, de l'article L. 811-11-1, de l'article L. 814-5, des articles L. 622-18, L. 626-25 et L. 641-8, de l'article R. 621-12 ainsi que des articles R. 814-24 et R. 814-38.
Article R621-14
Dans les dix jours du prononcé du jugement d'ouverture, le représentant légal de la personne morale débitrice ou le débiteur personne physique, assisté de l'administrateur s'il en a été désigné, réunit le comité d'entreprise, les délégués du personnel ou, à défaut, les salariés. Les salariés élisent alors leur représentant par vote secret au scrutin uninominal à un tour.
Le procès-verbal de désignation du représentant des salariés, ou le procès-verbal de carence établi dans les conditions du deuxième alinéa de l'article L. 621-4, est immédiatement déposé au greffe du tribunal.
Article R621-15
Le tribunal d' instance est saisi des contestations relatives à la désignation du représentant des salariés par déclaration au greffe.
Cette déclaration n' est recevable que si elle est faite dans les deux jours suivant la désignation du représentant des salariés.
Dans les cinq jours de sa saisine, le tribunal d' instance statue en dernier ressort, sans frais ni forme de procédure et sur simple avertissement qu' il donne deux jours à l' avance à toutes les parties intéressées.
La décision du tribunal d' instance est notifiée par le greffier dans les deux jours.
Le délai du pourvoi en cassation est de cinq jours. Le pourvoi est formé, instruit et jugé dans les conditions fixées par les articles 999 à 1008 du code de procédure civile.
Article R621-16
Le licenciement du représentant des salariés désigné en application de l'article L. 621-4 est régi par les dispositions des articles R. 436-1 à R. 436-8 et de l'article R. 436-10 du code du travail.
Section 2 : Des organes de la procédure et des contrôleurs.
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Article R621-17
Lorsqu'une demande de remplacement de l'administrateur, de l'expert ou du mandataire judiciaire est portée devant le tribunal par le ministère public ou par le juge-commissaire ou lorsque le tribunal se saisit d'office aux mêmes fins, la convocation de la personne dont le remplacement ou la révocation est en cause est faite dans les formes et selon la procédure prévue à l'article R. 631-3 ou R. 631-4, selon le cas. Il en va de même lorsqu'une demande de révocation de l'un des contrôleurs est portée devant le tribunal par le ministère public.
Le tribunal statue après avis du ministère public, si celui-ci n'est pas demandeur.
Les dispositions qui précèdent s'appliquent pour l'adjonction d'un ou de plusieurs administrateurs ou d'un ou de plusieurs mandataires judiciaires.
Lorsque l'administrateur ou le mandataire judiciaire demande son remplacement en application du cinquième alinéa de l'article L. 621-7, la demande est formée par lettre simple adressée au juge-commissaire.L'ordonnance rendue par le président du tribunal est communiquée au ministère public par le greffier, qui en avise, par lettre simple, l'administrateur ou le mandataire judiciaire qui est remplacé, l'administrateur ou le mandataire judiciaire désigné pour le remplacer ainsi que le débiteur.
Article R621-18
Le mandataire de justice qui cesse ses fonctions rend ses comptes à celui qui le remplace, en présence du juge-commissaire, le débiteur entendu ou appelé à la diligence du greffier du tribunal.
Article R621-19
Le mandataire judiciaire prend toute mesure pour informer et consulter les créanciers.
Les créanciers qui en font la demande par lettre recommandée avec demande d'avis de réception au mandataire judiciaire sont tenus informés par celui-ci des étapes essentielles de la procédure au fur et à mesure du déroulement de celle-ci.
Article R621-20
Dans le délai de deux mois après le jugement d'ouverture, le mandataire judiciaire et l'administrateur, lorsqu'il en a été désigné, adressent un rapport au juge-commissaire et au ministère public sur le déroulement de la procédure et la situation économique et financière dans laquelle se trouve le débiteur. Ce rapport est déposé au greffe.
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Article R621-21
Le juge-commissaire statue par ordonnance sur les demandes, contestations et revendications relevant de sa compétence ainsi que sur les réclamations formulées contre les actes de l'administrateur, du mandataire judiciaire et du commissaire à l'exécution du plan.
Si le juge-commissaire n'a pas statué dans un délai raisonnable, le tribunal peut être saisi à la demande d'une partie ou du ministère public.
Les ordonnances du juge-commissaire sont déposées sans délai au greffe qui les communique aux mandataires de justice et les notifie aux parties et aux personnes dont les droits et obligations sont affectés. Sur sa demande, elles sont communiquées au ministère public.
Ces ordonnances peuvent faire l'objet d'un recours devant le tribunal dans les dix jours de la communication ou de la notification, par déclaration faite contre récépissé ou adressée par lettre recommandée avec demande d'avis de réception au greffe.
Le ministère public peut également saisir le tribunal par requête motivée, dans les dix jours de la communication qui lui est faite de l'ordonnance.
L'examen du recours est fixé à la première audience utile du tribunal, les intéressés et les mandataires de justice étant avisés.
Article R621-22
Le juge-commissaire ne peut siéger, à peine de nullité du jugement, lorsque le tribunal statue sur un recours formé contre une de ses ordonnances.
Article R621-23
Avant de désigner un technicien en application de l'article L. 621-9, le juge-commissaire recueille les observations du débiteur.
Dès l'achèvement de la mission du technicien, le juge-commissaire arrête sa rémunération en fonction notamment des diligences accomplies, de la qualité du travail fourni et du respect des délais impartis.
Lorsque le juge-commissaire envisage de fixer cette rémunération à un montant inférieur au montant demandé, il doit au préalable inviter le technicien à formuler des observations.
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Le juge-commissaire délivre au technicien, sur sa demande, un titre exécutoire.
Article R621-24
Le créancier demandant à être nommé contrôleur en application du premier alinéa de l'article L. 621-10 doit en faire la déclaration au greffe. Il indique le montant de sa ou de ses créances, ainsi que, le cas échéant, la nature des sûretés dont il est titulaire.
Aucun contrôleur ne peut être désigné par le juge-commissaire avant l'expiration d'un délai de vingt jours à compter du prononcé du jugement d'ouverture de la procédure.
Le cas échéant, l'ordre professionnel ou l'autorité compétente dont relève le débiteur déclare au greffe le nom de la personne qu'il a désignée pour le représenter dans sa fonction de contrôleur. En l'absence de cette déclaration, son représentant légal exerce cette fonction.
Le créancier qui demande à être désigné contrôleur atteste sur l'honneur qu'il remplit les conditions prévues au deuxième alinéa de l'article L. 621-10.
Article R621-25
Les fonctions du juge-commissaire et des contrôleurs prennent fin au jour où le compte rendu de fin de mission de l'administrateur judiciaire, du mandataire judiciaire et, le cas échéant, du commissaire à l'exécution du plan, a été approuvé.
Article R621-26
Pour l'application de l'article L. 621-12, le tribunal est saisi par voie de requête ou, le cas échéant, dans les formes et selon la procédure prévue à l'article R. 631-3 ou R. 631-4.
Il statue après avoir entendu ou dûment appelé le mandataire judiciaire, l'administrateur lorsqu'il en a été désigné, les contrôleurs et les représentants du comité d'entreprise ou, à défaut, les délégués du personnel, et après avoir recueilli l'avis du ministère public.
Le jugement par lequel le tribunal convertit la procédure de sauvegarde en une procédure de redressement judiciaire est signifié à la diligence du greffier dans les huit jours de son prononcé aux personnes qui ont qualité pour interjeter appel, à l'exception du ministère public.
Il est communiqué aux personnes citées à l'article R. 621-7 et fait l'objet des publicités prévues à l'article R. 621-8.
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Chapitre II : De l'entreprise au cours de la période d'observation.
Article R622-1
La demande de modification de la mission de l'administrateur est adressée par requête au tribunal qui statue après avoir recueilli les observations du débiteur ainsi que celles de l'administrateur, du mandataire judiciaire et du ministère public lorsqu'ils ne sont pas demandeurs.
Toute décision modifiant la mission de l'administrateur est notifiée au débiteur. Elle est communiquée aux personnes citées à l'article R. 621-7 et mentionnée aux registres ou répertoires prévus à l'article R. 621-8.
Section 1 : Des mesures conservatoires.
Article R622-2
Dès le jugement d'ouverture, le débiteur est tenu de signaler à l'administrateur ou, à défaut, au mandataire judiciaire, tous ses établissements et d'en faciliter l'accès, de communiquer la liste du personnel ainsi que tous éléments permettant de déterminer les salaires et indemnités à payer.
Article R622-3
Dans le cas où des comptes annuels n'ont pas été établis ou mis à sa disposition, l'administrateur, lorsqu'il en a été désigné, dresse à l'aide de tout document ou renseignement disponible un état de la situation.
Article R622-4
L'inventaire prévu à l'article L. 622-6 est réalisé, le débiteur ou ses ayants droit connus, présents ou appelés.
Le débiteur remet à la personne désignée pour dresser l'inventaire la liste des biens gagés, nantis ou placés sous sujétion douanière ainsi que celle des biens qu'il détient en dépôt, location ou crédit-bail, ou sous réserve de propriété ou, plus généralement, qui sont susceptibles d'être revendiqués par des tiers. Cette liste est annexée à l'inventaire.
Le cas échéant, lorsqu'il n'est pas immatriculé au registre du commerce et des sociétés ou au répertoire des métiers, il informe le mandataire judiciaire de la déclaration d'insaisissabilité à
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laquelle il a procédé en application de l'article L. 526-1.
L'inventaire est déposé au greffe du tribunal par celui qui l'a réalisé. Celui-ci en remet une copie au débiteur, à l'administrateur, lorsqu'il en a été désigné, et au mandataire judiciaire.
Le président du tribunal ou son délégué arrête la rémunération de la personne désignée pour dresser l'inventaire, au vu d'un compte détaillé, le cas échéant selon le tarif qui lui est applicable.
En l'absence de tarif réglementé, les dispositions des deuxième et troisième alinéas de l'article R. 621-23 sont applicables.
Article R622-4-1
Lorsque l'inventaire est établi par le débiteur en application de l'article L. 622-6-1, celui-ci tient informés l'administrateur, lorsqu'il en a été désigné, et le mandataire judiciaire du déroulement des opérations. Ces mandataires de justice ainsi que le juge-commissaire et le ministère public peuvent requérir communication de tous actes ou documents relatifs à l'inventaire.
Le débiteur annexe à l'inventaire la liste mentionnée au deuxième alinéa de l'article R. 622-4 et procède à l'information prévue au troisième alinéa du même article.
L'inventaire est déposé au greffe du tribunal par le débiteur qui en remet une copie à l'administrateur, lorsqu'il en a été désigné, et au mandataire judiciaire.
Pour l'application du deuxième alinéa de l'article L. 622-6-1, la demande est formée par requête déposée ou adressée au greffe. Le greffier convoque le débiteur par lettre recommandée avec demande d'avis de réception et avise de la date de l'audience l'administrateur, lorsqu'il en a été désigné, le mandataire judiciaire et le ministère public. En cas de saisine d'office, une note par laquelle le juge-commissaire expose les faits de nature à motiver sa saisine est jointe à la convocation et aux avis.
Article R622-5
La liste des créanciers établie par le débiteur conformément à l'article L. 622-6 comporte les nom ou dénomination, siège ou domicile de chaque créancier avec l'indication du montant des sommes dues au jour du jugement d'ouverture, des sommes à échoir et de leur date d'échéance, de la nature de la créance, des sûretés et privilèges dont chaque créance est assortie. Elle comporte l'objet des principaux contrats en cours.
Dans les huit jours qui suivent le jugement d'ouverture, le débiteur remet la liste à l'administrateur et au mandataire judiciaire. Celui-ci la dépose au greffe.
Section 2 : De la gestion de l'entreprise.
Article R622-6
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Lorsque le juge-commissaire statue sur une demande d'autorisation présentée par le débiteur en application du II de l'article L. 622-7, le greffier convoque le débiteur, l'administrateur, lorsqu'il en a été désigné, le mandataire judiciaire et, s'il y a lieu, les créanciers titulaires de sûretés spéciales sur les biens dont la vente est envisagée.
Article R622-7
En cas de vente d'un bien visé au premier alinéa de l'article L. 622-8, le prix est remis à l'administrateur ou, à défaut, au mandataire judiciaire en vue de son versement à la Caisse des dépôts et consignations. Les fonds sont indisponibles pendant la période d'observation.
Toutefois, des paiements provisionnels peuvent être effectués dans les conditions définies au deuxième alinéa de l'article L. 622-8. Sur avis du débiteur et de l'administrateur s'il en a été désigné ou, à défaut, du mandataire judiciaire, le juge-commissaire saisi d'une demande d'un des créanciers statue au vu de la déclaration de créance, des documents justificatifs de la déclaration de créance et, le cas échéant, de la garantie prévue au même article. La provision est allouée à hauteur d'un montant non sérieusement contestable en fonction de ces éléments et du rang de collocation de la créance.
Sur ordonnance du juge-commissaire, les fonds indûment versés sont restitués sur première demande du mandataire de justice habilité.
Article R622-8
Le juge-commissaire statue sur la requête aux fins de substitution formée conformément au troisième alinéa de l'article L. 622-8 après avoir entendu le débiteur, l'administrateur, le créancier en cause et le mandataire judiciaire, ou ceux-ci convoqués par le greffier.
Les radiations et inscriptions de sûretés sont requises par le demandeur ou le bénéficiaire sur injonction faite par le juge-commissaire dans son ordonnance. Les frais y afférents sont à la charge du débiteur. La radiation ne peut intervenir qu'après constitution de la garantie substituée.
Section 3 : De la poursuite de l'activité.
Article R622-9
A la fin de chaque période d'observation fixée par le tribunal et, à tout moment, à la demande du ministère public ou du juge-commissaire, le débiteur informe ces derniers, l'administrateur s'il en a été désigné, le mandataire judiciaire et les contrôleurs des résultats de l'exploitation, de la situation de trésorerie et de sa capacité à faire face aux dettes mentionnées au I de l'article L. 622-17.
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Article R622-10
Pour l'application du premier alinéa de l'article L. 622-10, le tribunal est saisi par voie de requête. Le jugement qui ordonne la cessation partielle de l'activité est communiqué aux personnes citées à l'article R. 621-7 et mentionné aux registres ou répertoires prévus à l'article R. 621-8.
Article R622-11
Pour l'application des deuxième et troisième alinéas de l'article L. 622-10, le tribunal est saisi par voie de requête ou, le cas échéant, dans les formes et selon la procédure prévues à l'article R. 631-3 ou R. 631-4.
Le jugement qui convertit la procédure en redressement judiciaire ou prononce la liquidation judiciaire est notifié au débiteur dans les huit jours de son prononcé. Lorsqu'il n'est pas demandeur, il lui est signifié dans le même délai.
Ce jugement est, en outre, signifié à la diligence du greffier, dans le même délai, aux personnes qui ont qualité pour interjeter appel, à l'exception du ministère public.
Il est communiqué aux personnes citées à l'article R. 621-7 et fait l'objet des publicités prévues à l'article R. 621-8.
Article R622-12
La décision par laquelle le tribunal met fin à la procédure en application de l'article L. 622-12 est sans délai suivie d'un compte rendu de fin de mission déposé par les mandataires de justice dans les conditions des articles R. 626-39 et R. 626-40. Elle est communiquée aux personnes citées à l'article R. 621-7 et fait l'objet des publicités prévues à l'article R. 621-8. L'article R. 626-41 est applicable.
Article R622-13
Le greffier avise le cocontractant de la décision du juge-commissaire accordant à l'administrateur la prolongation prévue au 1° du III de l'article L. 622-13.
Le juge-commissaire constate, sur la demande de tout intéressé, la résiliation de plein droit des contrats dans les cas prévus au III de l'article L. 622-13 et à l'article L. 622-14, ainsi que la date de cette résiliation.
La demande de résiliation présentée par l'administrateur en application du IV de l'article L. 622-13 est formée par requête adressée ou déposée au greffe. Le greffier convoque le débiteur et le cocontractant par lettre recommandée avec demande d'avis de réception et avise l'administrateur de
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la date de l'audience.
Article R622-14
La décision du juge-commissaire qui autorise les prêts et accorde des délais de paiement conformément au 2° du III de l'article L. 622-17 est transcrite sur le registre tenu à cet effet au greffe du tribunal avec l'indication de l'identité du débiteur, du montant des prêts, de l'identification du prêteur et de l'échéance des prêts ou des délais de paiement.
Article R622-15
L'administrateur, lorsqu'il en a été désigné, tient le mandataire judiciaire informé des créances mentionnées au I de l'article L. 622-17 qui ont été portées à sa connaissance en application du IV du même article.
La liste de ces créances est transmise par l'administrateur ou, à défaut, le mandataire judiciaire, dès la cessation de leurs fonctions, au commissaire à l'exécution du plan, ou au liquidateur, selon le cas, qui la complète.
Le commissaire à l'exécution du plan ou le liquidateur dépose cette liste au greffe du tribunal à l'issue du délai d'un an qui suit la fin de la période d'observation, où tout intéressé peut en prendre connaissance. Le greffier fait publier au Bulletin officiel des annonces civiles et commerciales une insertion indiquant ce dépôt et le délai pour présenter une contestation.
Tout intéressé peut contester cette liste devant le juge-commissaire dans un délai d'un mois à compter de la publication.
Les créances rejetées de cette liste par le juge-commissaire sont réputées avoir été déclarées dans les conditions de l'article L. 622-24. Dans ce cas, le créancier adresse au mandataire judiciaire les informations prévues à l'article L. 622-25 et à l'article R. 622-23.
Article R622-16
Le débiteur, l'administrateur s'il en a été désigné et, le cas échéant, le mandataire judiciaire indiquent au juge-commissaire et au ministère public, lorsqu'ils en font la demande, le solde des comptes bancaires de l'entreprise ainsi que celui des comptes ouverts à la Caisse des dépôts et consignations.
Si la poursuite de l'activité l'exige, le juge-commissaire peut modifier la répartition des sommes entre, d'une part, les comptes de l'entreprise et, d'autre part, les comptes ouverts à la Caisse des dépôts et consignations.
Article R622-17
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La déclaration à l'administration fiscale faite en application de l'article L. 622-19 incombe au débiteur.
Article R622-18
En application du premier alinéa de l'article L. 622-20, l'action d'un créancier nommé contrôleur, dans l'intérêt collectif des créanciers, n'est recevable qu'après une mise en demeure adressée au mandataire judiciaire par lettre recommandée avec demande d'avis de réception restée infructueuse pendant deux mois à compter de la réception de celle-ci.
Article R622-19
Conformément au II de l'article L. 622-21, les procédures de distribution du prix de vente d'un immeuble et les procédures de distribution du prix de vente d'un meuble ne faisant pas suite à une procédure d'exécution ayant produit un effet attributif avant le jugement d'ouverture, en cours au jour de ce jugement, sont caduques. Les fonds sont remis au mandataire judiciaire, le cas échéant par le séquestre qui par cette remise est libéré à l'égard des parties.
Si le tribunal arrête un plan, le mandataire judiciaire remet ces fonds au commissaire à l'exécution du plan aux fins de répartition.
Lorsque la procédure de distribution du prix de vente d'un immeuble mentionnée au premier alinéa a été ouverte dans les conditions prévues au premier alinéa de l'article 111 du décret n° 2006-936 du 27 juillet 2006 relatif aux procédures de saisie immobilière et de distribution du prix d'un immeuble et que l'acquéreur a accompli les formalités de purge ou a été dispensé d'y procéder, celui-ci peut saisir le tribunal de grande instance aux fins de faire prononcer la radiation des inscriptions.
L'acquéreur joint à sa demande un justificatif du paiement du prix, un état des inscriptions sur formalité, la justification de l'accomplissement des formalités de purge ou de l'obtention de l'accord des créanciers inscrits pour l'en dispenser et la justification du paiement des frais préalables de vente mentionnés à l'article 2209 du code civil.
Le greffier convoque les créanciers qui n'ont pas donné mainlevée de leurs inscriptions, à domicile élu, par lettre recommandée avec demande d'avis de réception. La convocation comporte l'indication qu'ils disposent d'un délai de trente jours à compter de la réception de la lettre recommandée pour faire opposition au paiement du prix par déclaration au greffe ou par lettre recommandée avec demande d'avis de réception.
Le juge statue sur les oppositions et ordonne la radiation des inscriptions.
Article R622-20
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L'instance interrompue en application de l'article L. 622-22 est reprise à l'initiative du créancier demandeur, dès que celui-ci a produit à la juridiction saisie de l'instance une copie de la déclaration de sa créance et mis en cause le mandataire judiciaire ainsi que, le cas échéant, l'administrateur lorsqu'il a pour mission d'assister le débiteur ou le commissaire à l'exécution du plan.
Les décisions passées en force de chose jugée rendues après reprise d'instance sont à la demande du mandataire judiciaire portées sur l'état des créances par le greffier du tribunal ayant ouvert la procédure.
Section 4 : De la déclaration de créances.
Article R622-21
Le mandataire judiciaire, dans le délai de quinze jours à compter du jugement d'ouverture, avertit les créanciers connus d'avoir à lui déclarer leurs créances dans le délai mentionné à l'article R. 622-24.
Les cocontractants mentionnés aux articles L. 622-13 et L. 622-14 bénéficient d'un délai d'un mois à compter de la date de la résiliation de plein droit ou de la notification de la décision prononçant la résiliation pour déclarer au passif la créance résultant de cette résiliation. Il en est de même des créanciers d'indemnités et pénalités mentionnées au 2° du III de l'article L. 622-17 en cas de résiliation d'un contrat régulièrement poursuivi.
L'avertissement du mandataire judiciaire reproduit les dispositions légales et réglementaires relatives aux délais et formalités à observer pour la déclaration des créances, pour la demande en relevé de forclusion et pour les actions en revendication et en restitution. Cet avertissement reproduit également les articles L. 621-10, R. 621-19 et R. 621-24. Les créanciers titulaires d'une sûreté publiée ou liés au débiteur par un contrat publié sont avertis personnellement ou, s'il y a lieu, à domicile élu, par lettre recommandée avec demande d'avis de réception.
Les institutions mentionnées à l'article L. 143-11-4 du code du travail déclarent les créances figurant sur les relevés prévus à l'article L. 625-1, y compris celles qu'elles refusent de régler pour quelque cause que ce soit. Le délai de déclaration prend fin quinze jours après l'expiration des délais de règlement prévus au troisième alinéa de l'article L. 143-11-7 du code du travail.
Article R622-22
En application du cinquième alinéa de l'article L. 622-24, les créanciers dont les créances, nées régulièrement après le jugement d'ouverture autres que celles mentionnées au I de l'article L. 622-17, résultent d'un contrat à exécution successive déclarent leurs créances, pour la totalité des sommes échues et à échoir, sur la base d'une évaluation, dans un délai de deux mois à compter de la publication du jugement d'ouverture au Bulletin officiel des annonces civiles et commerciales.
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Lorsque le contrat est conclu postérieurement à ce jugement, les créanciers déclarent leurs créances pour la totalité des sommes échues et à échoir, sur la base d'une évaluation, dans un délai de deux mois à compter de la première échéance impayée, qu'elle ait été ou non régularisée.
Article R622-23
Outre les indications prévues à l'article L. 622-25, la déclaration de créance contient :
1° Les éléments de nature à prouver l'existence et le montant de la créance si elle ne résulte pas d'un titre ; à défaut, une évaluation de la créance si son montant n'a pas encore été fixé ;
2° Les modalités de calcul des intérêts dont le cours n'est pas arrêté, cette indication valant déclaration pour le montant ultérieurement arrêté ;
3° L'indication de la juridiction saisie si la créance fait l'objet d'un litige.
A cette déclaration sont joints sous bordereau les documents justificatifs ; ceux-ci peuvent être produits en copie. A tout moment, le mandataire judiciaire peut demander la production de documents qui n'auraient pas été joints.
Article R622-24
Le délai de déclaration fixé en application de l'article L. 622-26 est de deux mois à compter de la publication du jugement d'ouverture au Bulletin officiel des annonces civiles et commerciales.
Lorsque la procédure est ouverte par une juridiction qui a son siège sur le territoire de la France métropolitaine, le délai est augmenté de deux mois pour les créanciers qui ne demeurent pas sur ce territoire.
Lorsque la procédure est ouverte par une juridiction qui a son siège dans un département ou une collectivité d'outre-mer, le délai est augmenté de deux mois pour les créanciers qui ne demeurent pas dans ce département ou cette collectivité.
Article R622-25
Lorsque le juge-commissaire a relevé le créancier de sa forclusion après le dépôt de la liste des créances prévu à l'article L. 624-1 et que sa décision est devenue définitive, il statue sur la créance dans les conditions de l'article L. 624-2. Une mention est portée par le greffier sur l'état des créances.
Les frais de l'instance en relevé de forclusion sont supportés par le créancier défaillant.
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Article R622-26
Les instances et les procédures civiles d'exécution suspendues en application du deuxième alinéa de l'article L. 622-28 sont poursuivies à l'initiative des créanciers bénéficiaires de garanties mentionnés au dernier alinéa de cet article sur justification du jugement arrêtant le plan, selon les dispositions applicables à l'opposabilité de ce plan à l'égard des garants.
En application du troisième alinéa de l'article L. 622-28, ces créanciers peuvent pratiquer des mesures conservatoires dans les conditions prévues aux articles 210 et suivants du décret n° 92-755 du 31 juillet 1992 instituant de nouvelles règles relatives aux procédures civiles d'exécution pour l'application de la loi n° 91-650 du 9 juillet 1991 portant réforme des procédures civiles d'exécution.
Chapitre III : De l'élaboration du bilan économique, social et environnemental.
Article R623-1
L'administrateur dépose au greffe et communique aux autorités et personnes mentionnées à l'article L. 626-8, par lettre recommandée avec demande d'avis de réception, le bilan établi conformément à l'article L. 623-1.
Article R623-2
Le bilan environnemental prévu à l'article L. 623-1 est réalisé à la demande de l'administrateur par le débiteur ou par un technicien désigné par le juge-commissaire, si ce dernier estime nécessaire une telle intervention.
Ce bilan porte sur l'identification et la description du ou des sites où sont exploités la ou les installations classées et de leur environnement, l'existence de pollutions potentielles, les mesures d'urgence de mise en sécurité déjà prises, prévues ou à prendre et les mesures réalisées afin de surveiller l'impact de l'exploitation sur l'environnement.
Il est établi selon les rubriques fixées par un arrêté pris par le garde des sceaux, ministre de la justice, et par le ministre chargé des installations classées.
Chapitre IV : De la détermination du patrimoine du débiteur.
Section 1 : De la vérification et de l'admission des créances.
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Sous-section 1 : De la vérification des créances.
Article R624-1
La vérification des créances est faite par le mandataire judiciaire, le débiteur et, le cas échéant, les contrôleurs désignés, présents ou dûment appelés.
Si une créance autre que celle mentionnée à l'article L. 625-1 est discutée, le mandataire judiciaire en avise le créancier ou son mandataire par lettre recommandée avec demande d'avis de réception. Le délai de trente jours prévu à l'article L. 622-27 court à partir de la réception de la lettre. Cette lettre précise l'objet de la discussion, indique le montant de la créance dont l'inscription est proposée et rappelle les dispositions de l'article L. 622-27.
Article R624-2
La liste des créances contenant les indications prévues à l'article L. 622-25 et à l'article R. 622-23 ainsi que les propositions du mandataire judiciaire et les observations du débiteur est déposée au greffe pour être sans délai remise au juge-commissaire. Elle est communiquée à l'administrateur, s'il en a été désigné, et, le cas échéant, au commissaire à l'exécution du plan.
Les créanciers dont la créance n'a pas été portée définitivement sur la liste des créances, dans le délai prévu par l'article L. 624-1, peuvent demander à être relevés de la forclusion prévue par le troisième alinéa de l'article L. 622-24 selon les modalités prévues par l'article L. 622-26.
Après le dépôt au greffe de cette liste, celle-ci est complétée par le greffier agissant à la demande du mandataire judiciaire ou du créancier intéressé, par l'inscription des créances définitivement fixées à l'issue d'une instance judiciaire ou administrative et de celles admises à la suite d'un relevé de forclusion intervenu après le dépôt de l'état des créances.
Sous-section 2 : De l'admission des créances.
Article R624-3
Les décisions d'admission sans contestation sont matérialisées par l'apposition de la signature du juge-commissaire sur la liste des créances établie par le mandataire judiciaire.
Le greffier avise par lettre simple les créanciers ou leur mandataire de cette admission. Ces avis précisent le montant pour lequel la créance est admise ainsi que les sûretés et privilèges dont elle est assortie et reproduisent les dispositions des articles L. 622-27 et L. 624-3.
Le mandataire judiciaire et l'administrateur, lorsqu'il en a été désigné, sont avisés contre récépissé
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des décisions rendues.
Article R624-4
Lorsque la compétence du juge-commissaire est contestée ou que ce juge soulève d'office son incompétence, le greffier convoque par lettre recommandée avec demande d'avis de réception le débiteur, le créancier, le mandataire judiciaire et l'administrateur, lorsqu'il en a été désigné.
Ces dispositions sont applicables lorsque le juge-commissaire est appelé à statuer sur une contestation de créance. Toutefois, il n'y a pas lieu à convocation du créancier lorsque celui-ci n'a pas contesté la proposition du mandataire judiciaire dans le délai prévu à l'article L. 622-27.
Les décisions statuant sur la compétence ou sur la contestation d'une créance sont notifiées au débiteur et au créancier ou à son mandataire par le greffier, dans les huit jours.
Ces notifications précisent le montant pour lequel la créance est admise ainsi que les sûretés et privilèges dont elle est assortie et reproduisent les dispositions des articles L. 622-27 et L. 624-3.
Le mandataire judiciaire et l'administrateur, lorsqu'il en a été désigné, sont avisés contre récépissé des décisions rendues.
Article R624-5
La décision d'incompétence ouvre au créancier, au débiteur et au mandataire judiciaire un délai d'un mois à compter de la notification ou de la réception de l'avis délivré pour saisir la juridiction compétente à peine de forclusion, à moins de contredit.
Les tiers intéressés ne peuvent former tierce opposition contre la décision rendue par la juridiction compétente que dans le délai d'un mois à compter de sa transcription sur l'état des créances.
Article R624-6
A la requête du Trésor public, le juge-commissaire, après avoir recueilli l'avis du mandataire judiciaire, prononce l'admission définitive des créances admises à titre provisionnel en application du troisième alinéa de l'article L. 622-24 et qui ont fait l'objet d'un titre exécutoire ou ne sont plus contestées. Lorsque le juge-commissaire n'est plus en fonctions, le président du tribunal, saisi par requête du représentant du Trésor public, prononce l'admission définitive. Les décisions sont portées sur l'état des créances.
Les décisions rendues en méconnaissance des dispositions du troisième alinéa de l'article L. 622-24 sont susceptibles d'appel.
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Article R624-7
Le recours contre les décisions du juge-commissaire statuant sur l'admission des créances est formé devant la cour d'appel.
Sous-section 3 : De l'état des créances.
Article R624-8
Les décisions prononcées par le juge-commissaire sont portées par le greffier sur la liste des créances mentionnée au premier alinéa de l'article R. 624-2. Cette liste ainsi complétée et les relevés des créances résultant du contrat de travail constituent l'état des créances.
Cet état est déposé au greffe du tribunal, où toute personne peut en prendre connaissance.
Le greffier fait publier au Bulletin officiel des annonces civiles et commerciales une insertion indiquant ce dépôt et le délai pour présenter une réclamation.
Tout intéressé peut présenter une réclamation devant le juge-commissaire dans le délai d'un mois à compter de la publication.
Article R624-9
L'état des créances mentionné à l'article R. 624-8 est complété par :
1° Lorsque la matière est de la compétence d'une autre juridiction, les décisions rendues par la juridiction compétente ;
2° Les décisions mentionnées au premier alinéa de l'article R. 624-11 ;
3° Les décisions rendues par la cour d'appel statuant sur les recours formés contre les décisions du juge-commissaire.
Article R624-10
Les réclamations des tiers mentionnées au dernier alinéa de l'article R. 624-8 sont formées par déclaration faite au greffe ou remise contre récépissé ou adressée par lettre recommandée avec
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demande d'avis de réception. Elles sont mentionnées sur l'état des créances par le greffier.
Le greffier convoque les parties intéressées ou leur mandataire par lettre recommandée avec demande d'avis de réception et avise le mandataire judiciaire et l'administrateur, lorsqu'il en a été désigné.
Le recours contre les décisions du juge-commissaire statuant sur une réclamation est formé devant la cour d'appel.
Article R624-11
Le créancier dont les droits ont été reconnus par une décision d'une autre juridiction passée en force de chose jugée adresse au greffier du tribunal qui a ouvert la procédure une expédition de cette décision.
Le greffier avise le mandataire judiciaire ainsi que l'administrateur et le commissaire à l'exécution du plan, s'il y a lieu, de toute modification ainsi apportée à l'état des créances.
Section 2 : Des droits du conjoint.
Article R624-12
Le conjoint du débiteur doit être entendu ou dûment convoqué avant toute décision autorisant la vente des biens de la communauté.
Lorsque, au cours de la procédure, la dissolution de la communauté existant entre le débiteur et son conjoint devient opposable aux tiers, ce conjoint est entendu ou dûment convoqué avant toute décision autorisant la vente des biens de l'indivision.
Section 3 : Des droits du vendeur de meubles, des revendications et des restitutions.
Article R624-13
La demande en revendication d'un bien est adressée dans le délai prévu à l'article L. 624-9 par lettre recommandée avec demande d'avis de réception à l'administrateur s'il en a été désigné ou, à défaut, au débiteur. Le demandeur en adresse une copie au mandataire judiciaire.
A défaut d'acquiescement dans le délai d'un mois à compter de la réception de la demande, le
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demandeur doit, sous peine de forclusion, saisir le juge-commissaire au plus tard dans un délai d'un mois à compter de l'expiration du délai de réponse.
Avant de statuer, le juge-commissaire recueille les observations des parties intéressées.
La demande en revendication emporte de plein droit demande en restitution.
Article R624-14
Pour l'application de l'article L. 624-10, la demande en restitution est faite par le propriétaire du bien par lettre recommandée avec demande d'avis de réception à l'administrateur, s'il en a été désigné, ou, à défaut, au débiteur. Une copie de cette demande est adressée au mandataire judiciaire.
A défaut d'accord dans le délai d'un mois à compter de la réception de la demande ou en cas de contestation, le juge-commissaire peut être saisi à la diligence du propriétaire afin qu'il soit statué sur les droits de ce dernier. Même en l'absence de demande préalable en restitution, le juge-commissaire peut également être saisi à cette même fin par l'administrateur ou par le débiteur.
Article R624-15
Pour bénéficier des dispositions de l'article L. 624-10, les contrats qui y sont mentionnés doivent avoir été publiés avant le jugement d'ouverture selon les modalités qui leur sont applicables.
Aux mêmes fins, en l'absence de réglementation particulière, le propriétaire du bien doit avoir fait publier le contrat avant le jugement d'ouverture, selon le cas, au registre mentionné à l'article R. 313-4 du code monétaire et financier ou au registre prévu au troisième alinéa de l'article R. 621-8 du présent code.
Article R624-16
En cas de revendication du prix des biens en application de l'article L. 624-18, les sommes correspondantes payées par le sous-acquéreur postérieurement à l'ouverture de la procédure doivent être versées par le débiteur ou l'administrateur entre les mains du mandataire judiciaire. Celui-ci les remet au créancier revendiquant à concurrence de sa créance.
Chapitre V : Du règlement des créances résultant du contrat de travail.
Article R625-1
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Au vu des documents ou à partir des informations fournies par les salariés, par le débiteur, par l'administrateur ainsi que par le représentant des salariés, le mandataire judiciaire vérifie les créances résultant d'un contrat de travail et en établit des relevés. Cette vérification a lieu même en l'absence de la vérification des créances chirographaires.
Le débiteur tient à la disposition du représentant des salariés les éléments à partir desquels le mandataire judiciaire a établi les relevés et notamment le livre de paye et le registre du personnel. Le représentant des salariés appose sa signature sur les relevés en formulant au besoin des réserves ou observations. En l'absence de signature, le juge-commissaire entend le représentant des salariés.
Les relevés sont, à la diligence du mandataire judiciaire, visés par le juge-commissaire. Ils sont remis par le mandataire judiciaire aux institutions mentionnées à l'article L. 143-11-4 du code du travail avant l'expiration des délais prévus, pour chaque catégorie de créances, à l'article L. 143-11-7 du même code.
Article R625-2
Les relevés des créances résultant du contrat de travail mentionnent l'identité de chaque salarié, la nature de son contrat de travail, la date de son entrée dans l'entreprise, l'emploi occupé et sa qualification, l'exercice ou non d'un mandat social, la date de rupture du contrat de travail, les sommes déjà versées et celles qui restent à payer. Le montant de ces sommes est calculé déduction faite des prélèvements légaux et conventionnels, y compris lorsque ces sommes correspondent à des créances définitivement établies par décision de justice.
Article R625-3
Le mandataire judiciaire informe par tout moyen chaque salarié de la nature et du montant des créances admises ou rejetées et lui indique la date du dépôt au greffe du relevé des créances. Il rappelle que le délai de forclusion prévu à l'article L. 625-1 court à compter de la publication prévue au troisième alinéa ci-après. Les salariés dont les créances sont admises sont informés au moment du paiement.
Le salarié dont la créance a été omise peut être relevé de la forclusion par le conseil de prud'hommes dans le délai prévu au troisième alinéa de l'article L. 622-26. Le relevé de forclusion bénéficie aux institutions mentionnées à l'article L. 143-11-4 du code du travail.
La publicité mentionnée à l'article L. 625-1 est faite à la diligence du mandataire judiciaire par la publication, dans un journal habilité à recevoir les annonces légales dans le département du siège de la personne morale ou du lieu où le débiteur personne physique a déclaré l'adresse de son entreprise ou de son activité et, le cas échéant, dans le département de chacun de ses établissements secondaires, d'un avis indiquant que l'ensemble des relevés des créances est déposé au greffe du tribunal. Cette publication intervient au plus tard trois mois après l'expiration de la dernière période de garantie prévue par l'article L. 143-11-1 du code du travail.
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L'avis signé par le mandataire judiciaire est daté du jour de la publication prévue au troisième alinéa ci-dessus. Cette date fait courir le délai de forclusion prévu à l'article L. 625-1.
Article R625-4
Le mandataire judiciaire ou le commissaire à l'exécution du plan restitue aux institutions mentionnées à l'article L. 143-11-4 du code du travail les sommes avancées par elles qui n'ont pas été perçues par les salariés lorsque le délai de validité du titre de paiement est expiré. Ces institutions versent les sommes dues aux salariés qui en font la demande.
Article R625-5
Le débiteur donne toutes les informations utiles au mandataire judiciaire et à l'administrateur, s'il en a été désigné, sur les instances en cours devant la juridiction prud'homale à la date du jugement d'ouverture.
Article R625-6
Les institutions mentionnées à l'article L. 143-11-4 du code du travail font connaître au mandataire judiciaire leur refus de régler une créance figurant sur un relevé, dans les mêmes délais que ceux qui sont prévus à l'article L. 143-11-7 du même code, pour le versement des sommes impayées. Ces institutions indiquent la nature et le montant de la créance refusée ainsi que les motifs de leur refus.
Le mandataire judiciaire avertit le salarié du refus par les institutions mentionnées ci-dessus de régler la créance et en avise le représentant des salariés.
Article R625-7
Les recours prévus à l'article L. 625-6 sont exercés dans le délai d'un mois.
Chapitre VI : Du plan de sauvegarde.
Section 1 : De l'élaboration du projet de plan.
Sous-section 1 : De la convocation des assemblées.
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Article R626-1
Pour l'application de l'article L. 626-3, les assemblées sont convoquées conformément aux dispositions du livre II, sous réserve des dispositions de la présente section.
Article R626-2
Pour les sociétés anonymes et les sociétés en commandite par actions, outre les indications mentionnées aux articles R. 225-66 et R. 225-73, l'avis de convocation doit comporter :
1° La date à laquelle se réunira éventuellement la deuxième assemblée, à défaut pour la première d'avoir atteint le quorum requis ;
2° Le rappel du délai prévu au premier alinéa de l'article R. 626-3.
Le délai entre les deux assemblées est de six jours au moins.
Article R626-3
Par dérogation à l'article R. 225-72, la demande d'inscription d'un projet de résolution par les actionnaires à l'ordre du jour de l'assemblée est envoyée au siège social quinze jours au moins avant la date de l'assemblée réunie sur première convocation.
Sous-section 3 : De la consultation des créanciers.
Article R626-7
Pour l'application du second alinéa de l'article L. 626-5, les propositions relatives aux délais de paiement et remises de dettes sont communiquées par lettre recommandée avec demande d'avis de réception, par le mandataire judiciaire, à chaque créancier ayant déclaré sa créance.
La lettre contient la reproduction des dispositions de la deuxième phrase du deuxième alinéa de l'article L. 626-5.
Sont joints à cette lettre :
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1° Un état de la situation active et passive avec ventilation du passif privilégié et du passif chirographaire ;
2° Les propositions du débiteur et l'indication des garanties offertes ;
3° L'avis du mandataire judiciaire ainsi que des contrôleurs s'il en a été nommé.
Article R626-8
Lorsque le mandataire judiciaire décide de recueillir collectivement l'accord des créanciers, ceux-ci sont convoqués à une réunion tenue sous sa présidence, aux lieu, jour et heure fixés dans la lettre mentionnée à l'article R. 626-7. Un avis de convocation peut en outre être inséré dans un journal d'annonces légales du lieu du siège de la personne morale ou de l'adresse de l'entreprise ou de l'activité du débiteur personne physique.
Les créanciers peuvent se faire représenter par une personne munie d'un pouvoir spécial.
Le mandataire judiciaire fait aux créanciers un rapport sur l'état de la procédure ainsi que sur les conditions de la poursuite de l'activité du débiteur depuis son ouverture.
L'accord de chaque créancier présent ou représenté sur les propositions de règlement du passif est recueilli par écrit.
Sous-section 4 : Du règlement des créances publiques.
Article D626-9
Les remises de dettes consenties, pour l'application de l'article L. 626-6, par les administrations financières, les organismes de sécurité sociale, l'institution mentionnée à l'article L. 5312-1 (1) du code du travail pour le compte de l'organisme gestionnaire du régime d'assurance chômage, les institutions régies par le livre IX du code de la sécurité sociale et les institutions régies par le livre VII du code rural sont opérées dans les conditions et selon les modalités définies par les articles D. 626-10 à D. 626-15.
Article D626-10
Les dettes susceptibles d'être remises correspondent :
1° Aux pénalités, intérêts de retard, intérêts moratoires, amendes fiscales ou douanières, majorations, frais de poursuite, quel que soit l'impôt ou le produit divers du budget de l'Etat auquel ces pénalités ou frais s'appliquent ;
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2° Aux majorations de retard, frais de poursuite, pénalités et amendes attachés aux cotisations et contributions sociales recouvrées par les organismes de sécurité sociale et par les institutions régies par le livre IX du code de la sécurité sociale et par les institutions régies par le livre VII du code rural ;
3° Aux majorations de retard, frais de poursuite et pénalités attachés aux contributions et cotisations recouvrées par l'institution mentionnée à l'article L. 5312-1 (1) du code du travail pour le compte de l'organisme gestionnaire du régime d'assurance chômage ;
4° Aux cotisations et contributions sociales patronales d'origine légale ou conventionnelle qu'un employeur est tenu de verser au titre de l'emploi de personnel salarié ;
5° Aux droits au principal afférents aux seuls impôts directs perçus au profit de l'Etat et des collectivités territoriales ;
6° Aux créances de l'Etat étrangères à l'impôt et au domaine, aux redevances domaniales, aux redevances pour services rendus et aux autres produits divers du budget de l'Etat.
Les remises de dettes sont consenties par priorité sur les frais de poursuite, les majorations et amendes, puis sur les intérêts de retard et les intérêts moratoires, et enfin sur les droits et les sommes dus au principal. Les dettes dues au principal ne peuvent pas faire l'objet d'une remise totale.
Article D626-11
Peuvent être remises les dettes exigibles à la date de réception de la demande de remise, valant saisine de la commission mentionnée à l'article D. 626-14, et dues aux administrations, organismes et institutions mentionnés à l'article D. 626-9.
Article D626-12
En cas d'ouverture d'une procédure de conciliation, le débiteur ou le conciliateur saisit, y compris par voie dématérialisée, la commission mentionnée à l'article D. 626-14 de la demande de remise de dettes. Cette saisine a lieu, sous peine de forclusion, dans un délai de deux mois à compter de la date d'ouverture de la procédure.
A.-Cette demande est accompagnée :
1° De l'état actif et passif des sûretés ainsi que de celui des engagements hors bilan ;
2° Des comptes annuels et des tableaux de financement des trois derniers exercices, si ces documents ont été établis, ainsi que de la situation de l'actif réalisable et disponible et du passif exigible ;
3° Du montant des dettes privées. Les dettes privées correspondent à l'ensemble des concours consentis par les créanciers autres que ceux mentionnés à l'article D. 626-9.
B.-Elle peut être utilement complétée par tous documents, notamment :
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1° Un plan de trésorerie prévisionnel ;
2° Un état prévisionnel des commandes ;
3° Le montant des remises sollicitées ou obtenues auprès des créanciers privés.
Article D626-13
En cas d'ouverture d'une procédure de sauvegarde ou de redressement judiciaire, l'administrateur judiciaire ou le mandataire judiciaire saisit, y compris par voie dématérialisée, la commission mentionnée à l'article D. 626-14 de la demande de remise de dettes. Cette saisine a lieu, sous peine de forclusion, dans un délai de deux mois à compter de la date d'ouverture de la procédure.
A.-Cette demande est accompagnée :
1° De l'état actif et passif des sûretés ainsi que de celui des engagements hors bilan ;
2° Des comptes annuels et des tableaux de financement des trois derniers exercices, si ces documents ont été établis, ainsi que de la situation de l'actif réalisable et disponible et du passif exigible ;
3° Du montant des dettes privées. Les dettes privées correspondent à l'ensemble des concours consentis par les créanciers autres que ceux mentionnés à l'article D. 626-9.
B.-Elle peut être utilement complétée par tous documents, notamment :
1° Un plan de trésorerie prévisionnel ;
2° Un état prévisionnel des commandes ;
3° Le montant des remises sollicitées ou obtenues auprès des créanciers privés.
La commission peut également être saisie d'une demande de remise de dettes présentée dans le cadre d'une saisine du tribunal aux fins d'une modification substantielle du plan.
Article D626-14
Les demandes de remise de dettes sont examinées au sein d'une commission réunissant les chefs des services financiers et les représentants des organismes et institutions intéressés.
La composition et les conditions de fonctionnement de cette commission sont fixées par le décret n° 2007-686 du 4 mai 2007 instituant dans chaque département une commission des chefs des services financiers et des représentants des organismes de sécurité sociale et de l'assurance chômage pour l'examen de la situation des débiteurs retardataires.
Le président de la commission recueille les décisions des administrations, organismes et institutions représentés et en assure la notification. Lorsqu'elle est favorable, la notification précise les montants d'abandon de créances publiques ainsi que les conditions qui y sont attachées vis-à-vis des créanciers privés. Le président peut déléguer sa signature à l'un des membres de la commission.
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Le défaut de réponse dans un délai de deux mois à partir de la date de réception de l'ensemble des éléments mentionnés aux articles D. 626-12 et D. 626-13 vaut décision de rejet.
Article D626-15
Les remises de dettes ont pour objet de faciliter la restructuration financière de l'entreprise en difficulté, la poursuite de son activité économique et le maintien de l'emploi. La remise de dettes n'est pas justifiée dès lors que l'entreprise n'est plus viable. Elle ne doit pas représenter un avantage économique injustifié pour l'entreprise bénéficiaire. Les efforts des créanciers publics sont coordonnés avec ceux des autres créanciers en vue de faciliter le redressement durable de l'entreprise et permettre le recouvrement de recettes publiques futures.
La recevabilité de la demande de remise est subordonnée à la constatation que le débiteur, ou, s'il est une personne morale, ses organes ou ses représentants, n'a pas fait l'objet depuis au moins dix ans d'une condamnation définitive pour l'une des infractions sanctionnées par les articles L. 8224-1, L. 8224-2, L. 8224-3 et L. 8224-5 du code du travail.
L'examen de la demande est effectué en tenant compte :
-des efforts consentis par les créanciers autres que ceux mentionnés à l'article D. 626-9 ;
-des efforts financiers consentis par les actionnaires et les dirigeants ;
-de la situation financière du débiteur et des perspectives de son rétablissement pérenne ;
-du comportement habituel du débiteur vis-à-vis des créanciers mentionnés à l'article D. 626-9 ;
-des éventuels autres efforts consentis par ces créanciers portant sur les cessions de rang de privilège ou d'hypothèque ou l'abandon de ces sûretés ou les délais de paiement déjà accordés.
Section 2 : Du jugement arrêtant le plan et de l'exécution du plan.
Sous-section 1 : De l'arrêté du plan.
Article R626-17
Dès le dépôt au greffe du projet de plan par le débiteur, le greffier convoque, par lettre recommandée avec demande d'avis de réception, le débiteur, les représentants du comité d'entreprise ou, à défaut, des délégués du personnel et les contrôleurs.
Le ministère public ainsi que l'administrateur et le mandataire judiciaire sont avisés de la date de l'audience.
Article R626-18
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Le tribunal statue avant l'expiration des délais prévus à l'article L. 621-3.
Lorsqu'il n'est pas présenté de projet de plan en temps utile, le tribunal peut être saisi aux fins de clôture de la procédure par le ministère public, par tout créancier ou par les mandataires de justice. Il statue, le débiteur ayant été entendu ou appelé.
Le jugement de clôture est notifié au débiteur et fait l'objet des publicités prévues à l'article R. 621-8.
La clôture de la procédure est prononcée dans les conditions de l'article L. 626-9.
Les mandataires de justice déposent sans délai un compte-rendu de fin de mission dans les conditions des articles R. 626-39 et R. 626-40. L'article R. 626-41 est applicable.
Article R626-19
Les seuils fixés en application de l'article L. 626-9 au-delà desquels les débats relatifs à l'arrêté du plan doivent avoir lieu en présence du ministère public sont ceux fixés à l'article R. 621-11.
Article R626-20
Le jugement arrêtant le plan est communiqué par le greffier aux personnes mentionnées au 3° de l'article R. 621-7 et fait l'objet des publicités prévues à l'article R. 621-8.
Si le plan est toujours en cours à l'expiration d'un délai de deux ans à compter de son arrêté, les mentions relatives à la procédure et à l'exécution du plan sont, à l'initiative du débiteur, radiées des registres ou répertoires sur lesquels elles ont été portées. Cette radiation fait obstacle à toute nouvelle mention relative à l'exécution du plan.
Les dispositions de l'alinéa qui précède ne sont pas applicables aux mentions relatives aux mesures d'inaliénabilité décidées par le tribunal et aux décisions prononçant la résolution du plan.
Article R626-21
Le jugement arrêtant ou rejetant le plan est notifié au débiteur et aux représentants du comité d'entreprise ou, à défaut, des délégués du personnel et porté à la connaissance du ministère public et des mandataires de justice par le greffier, dans les huit jours de la date du jugement. Il est en outre notifié par le greffier à toute personne tenue de l'exécuter, conformément à l'article L. 626-10.
Article R626-22
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Lorsque la décision rejetant le plan est devenue définitive et qu'il n'a pas été fait application des dispositions du deuxième ou du troisième alinéa de l'article L. 622-10, le tribunal se saisit d'office aux fins de clôture de la procédure. Il statue dans les conditions de l'article L. 626-9.
Le jugement de clôture est notifié au débiteur et fait l'objet des publicités prévues à l'article R. 621-8.
Les mandataires de justice déposent sans délai un compte-rendu de fin de mission dans les conditions des articles R. 626-39 et R. 626-40.L'article R. 626-41 est applicable.
Sous-section 2 : De l'exécution du plan.
Article R626-23
Le tribunal qui a arrêté le plan demeure compétent pour connaître des conditions de son exécution nonobstant le changement du lieu du siège social de la personne morale ou de l'adresse de l'entreprise ou de l'activité du débiteur personne physique.
Article R626-24
Pour l'application de l'article L. 626-13, le débiteur justifie de la levée de l'interdiction d'émettre des chèques auprès de l'établissement de crédit qui est à l'origine de cette mesure par la remise d'une copie du jugement arrêtant le plan, à laquelle il joint un relevé des incidents de paiement.
L'établissement de crédit qui est à l'origine de l'interdiction informe la Banque de France de la levée de cette interdiction aux fins de régularisation.
Article R626-25
La mesure d'inaliénabilité prévue à l'article L. 626-14 est, à la diligence du commissaire à l'exécution du plan, mentionnée aux registres publics sur lesquels les biens déclarés inaliénables et les droits qui les grèvent sont inscrits ou, à défaut, aux registres mentionnés à l'article R. 621-8.
La publicité mentionne la durée de l'inaliénabilité.
Article R626-26
Lorsqu'en application de l'article L. 626-14, la décision arrêtant ou modifiant le plan prononce
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l'inaliénabilité temporaire de biens mobiliers d'équipement du débiteur, et est passée en force de chose jugée, le commissaire à l'exécution du plan demande l'inscription de la mesure d'inaliénabilité sur le registre prévu à l'article R. 143-9.
Article R626-27
Le commissaire à l'exécution du plan présente une copie de la décision rendue au greffier du tribunal de commerce dans le ressort duquel le débiteur, personne morale, a son siège ou le débiteur, personne physique, a déclaré l'adresse de son entreprise ou de son activité. Y sont joints les bordereaux d'inscription qui contiennent :
1° Les nom, prénoms et l'adresse de l'entreprise ou de l'activité du débiteur s'il s'agit d'une personne physique, la dénomination sociale ou commerciale et l'adresse du siège du débiteur s'il s'agit d'une personne morale, les mentions prévues aux 1° et 2° de l'article R. 123-237 ou le numéro d'immatriculation au répertoire des métiers ;
2° La date de la décision rendue ;
3° La désignation sommaire des biens d'équipement frappés d'inaliénabilité temporaire, le lieu où ils se trouvent entreposés, l'indication, le cas échéant, qu'ils peuvent être déplacés ;
4° La durée de la mesure d'inaliénabilité.
Article R626-28
Le greffier porte sur les bordereaux la mention de la date à laquelle l'inscription est effectuée et le numéro sous lequel elle est portée au registre mentionné à l'article R. 626-26.
Les bordereaux sont établis, conservés et l'un d'eux remis au débiteur dans les conditions prévues aux articles R. 525-2, R. 525-3 et R. 525-5.
Le greffier tient un fichier alphabétique des débiteurs avec l'indication des numéros des inscriptions les concernant.
Article R626-29
Les bordereaux reçoivent un numéro d'entrée au moment où ils sont produits.
Ces pièces sont enregistrées sur le registre mentionné à l'article R. 626-26 ; il est délivré un récépissé extrait dudit registre mentionnant :
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1° Le numéro d'entrée apposé sur les pièces comme il est dit au premier alinéa ;
2° La date du dépôt des pièces ;
3° Le nombre et la nature des pièces avec l'indication du but de ce dépôt ;
4° Le nom ou la dénomination du débiteur ;
5° La nature et la situation des biens inaliénables et, éventuellement, la mention qu'ils peuvent être déplacés.
Article R626-30
Le greffier mentionne, en marge du bordereau d'inscription, la radiation totale ou partielle de la mesure d'inaliénabilité portant sur des biens dont le tribunal a autorisé l'aliénation en application du premier alinéa de l'article L. 626-14.
Lorsque le délai fixé pour la mesure d'inaliénabilité temporaire décidée par le jugement est expiré, le greffier mentionne d'office en marge de l'inscription, la radiation de celle-ci. Il délivre un certificat de radiation au débiteur qui le demande.
Il est tenu de délivrer à tous ceux qui le requièrent l'état des inscriptions existantes avec la mention, le cas échéant, des radiations partielles.
Les frais de radiation sont inclus dans le coût de l'inscription.
Article R626-31
Le tribunal statue sur l'autorisation prévue à l'article L. 626-14 sur requête du débiteur au vu du rapport du commissaire à l'exécution du plan.
Sa décision est notifiée au débiteur et communiquée au ministère public et au commissaire à l'exécution du plan. Elle est soumise aux recours prévus à l'encontre des décisions modifiant le plan.
Article R626-32
Pour l'application de l'article L. 626-16, les assemblées compétentes sont convoquées dans les formes et délais prévus aux articles R. 626-1 à R. 626-3.
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Article R626-33
Le délai d'un an prévu au deuxième alinéa de l'article L. 626-18 court à compter du jour du jugement arrêtant le plan.
Article R626-34
Le montant maximal de chaque créance remboursable sans remise ni délai en application du II de l'article L. 626-20 est de 300 euros.
Article R626-35
La demande de substitution de garanties prévue à l'article L. 626-22 est faite par le débiteur au créancier en cause. A défaut d'accord de celui-ci, elle peut être demandée au tribunal par requête.
Le tribunal statue, le débiteur, le créancier et le commissaire à l'exécution du plan entendus ou dûment appelés.
Le débiteur procède à ses frais à la radiation et à l'inscription des sûretés. La radiation ne peut intervenir qu'après constitution de la garantie substituée.
Article R626-36
Après le versement à la Caisse des dépôts et consignations fait en application de l'article L. 626-22, des paiements provisionnels peuvent être effectués dans les conditions définies au deuxième alinéa de l'article L. 622-8. Le commissaire à l'exécution du plan répartit le prix entre les créanciers, effectue le paiement et procède à la radiation des inscriptions.
En cas de vente d'un immeuble, le prix est versé après l'accomplissement par l'acquéreur des formalités de purge des hypothèques prescrites par les articles 2476 et suivants du code civil et suivant la procédure d'ordre définie aux articles R. 643-3 à R. 643-14.
Les créanciers inscrits du chef d'un précédent propriétaire et titulaires d'un droit de suite sont avertis par le commissaire à l'exécution du plan par lettre recommandée avec demande d'avis de réception qu'ils ont l'obligation de produire leur créance à la procédure d'ordre dans le délai d'un mois à compter de l'avertissement.
La production de la créance mentionne la sûreté inscrite sur le bien. Un décompte des sommes dues en principal, intérêts et accessoires et les documents justificatifs sont joints à la production.
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A défaut de production dans le délai mentionné au troisième alinéa, le créancier est déchu des droits de participer à la distribution.
En cas de réduction des dividendes, en application du deuxième alinéa de l'article L. 626-22, l'état de collocation dressé par le commissaire à l'exécution du plan mentionne les modalités de calcul de cette réduction.
Article R626-37
Le recours prévu à l'article R. 643-11 est ouvert au débiteur. Le greffier adresse à celui-ci une copie de l'état de collocation. Cet avis précise le délai et les modalités du recours.
Article R626-38
L'administrateur rend compte au juge-commissaire de l'exécution des actes permettant la mise en oeuvre du plan conformément à l'article L. 626-24.
Le mandataire judiciaire rend compte de sa mission au juge-commissaire qui met fin à celle-ci, après avoir constaté l'achèvement de la vérification des créances et le versement des sommes dues aux salariés en application de l'article L. 143-11-7 du code du travail.
Article R626-39
Lorsque l'administrateur ou le mandataire judiciaire a accompli sa mission, il dépose au greffe un compte rendu de fin de mission. Tout intéressé peut en prendre connaissance.
Ce compte rendu est communiqué par le greffier au ministère public et notifié par le mandataire de justice au débiteur et aux contrôleurs par lettre recommandée avec demande d'avis de réception. Cette notification précise qu'ils peuvent former des observations devant le juge-commissaire dans un délai de quinze jours.
Le juge-commissaire approuve le compte-rendu de fin de mission, le cas échéant au vu des observations présentées. Il peut demander au mandataire de justice de lui produire tout justificatif. Sa décision est déposée au greffe. Elle n'est pas susceptible de recours.
Article R626-40
Le compte rendu de fin de mission comporte :
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1° La reddition des comptes telle qu'elle ressort de l'édition analytique du mandat dans la comptabilité spéciale de l'administrateur ou du mandataire judiciaire. Le classement analytique distingue, par nature, les opérations de recettes et dépenses ;
2° Le détail des débours et des émoluments perçus tels qu'ils ont été arrêtés, avec la référence au tarif prévu par les textes ;
3° Les rétributions que le mandataire de justice a prélevées sur sa rémunération au profit d'un intervenant extérieur au titre du mandat, en application des articles L. 811-1 et L. 812-1 ;
4° La rémunération des experts désignés par le tribunal et des techniciens désignés par le juge-commissaire, y compris les officiers publics ou ministériels.
Article R626-41
Dès le dépôt au greffe du compte rendu de fin de mission des mandataires de justice, le greffier adresse au débiteur, aux contrôleurs ainsi qu'au ministère public le compte détaillé de ses émoluments, de ses frais et de ses débours établi selon les dispositions des articles R. 743-140 à R. 743-157. Ce compte est déposé au greffe et annexé à celui des mandataires de justice. Il est complété si le greffier est appelé à régler postérieurement d'autres frais.
Article R626-42
Lorsque le compte-rendu de fin de mission de l'administrateur et du mandataire judiciaire a été approuvé, la procédure fait l'objet d'une ordonnance de clôture rendue par le président du tribunal.
Cette décision est une mesure d'administration judiciaire non susceptible de recours.
Elle est communiquée aux personnes citées à l'article R. 621-7 et mentionnée aux registres et répertoires prévus à l'article R. 621-8.
Article R626-43
Sans préjudice des dispositions de l'article R. 626-51, le commissaire à l'exécution du plan fait un rapport annuel sur l'exécution des engagements du débiteur et sur les paiements et répartitions auxquels il a procédé. Ce rapport est déposé au greffe, communiqué au ministère public et tenu à la disposition de tout créancier.
Article R626-44
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Lorsque le remplacement du commissaire à l'exécution du plan est demandé par le ministère public ou que le tribunal se saisit d'office aux mêmes fins, la convocation de l'intéressé est faite selon le cas dans les formes et selon la procédure prévues à l'article R. 631-3 ou R. 631-4.
La demande de remplacement présentée par le commissaire à l'exécution du plan est formée par lettre simple.L'ordonnance rendue par le président du tribunal est communiquée au ministère public par le greffier, qui en avise, par lettre simple, le commissaire à l'exécution du plan qui est remplacé, celui désigné pour le remplacer ainsi que le débiteur.
Article R626-45
La demande présentée par le débiteur en application de l'article L. 626-26 est faite par déclaration au greffe.
Le greffier convoque, par lettre recommandée avec demande d'avis de réception, le débiteur, les contrôleurs, les représentants du comité d'entreprise ou, à défaut, des délégués du personnel qui sont désignés conformément à l'article R. 621-2. Il avise de la date de l'audience le ministère public ainsi que le commissaire à l'exécution du plan.
Lorsque la modification porte sur les modalités d'apurement du passif, le greffier en informe les créanciers intéressés par lettre recommandée avec demande d'avis de réception. Ceux-ci disposent alors d'un délai de quinze jours pour faire valoir leurs observations par lettre recommandée avec demande d'avis de réception au commissaire à l'exécution du plan.
Le jugement est notifié conformément aux dispositions de l'article R. 626-21.
Article R626-46
Une copie du jugement modifiant le plan est adressée par le greffier aux personnes mentionnées au 3° de l'article R. 621-7. Le jugement fait l'objet des publicités prévues à l'article R. 621-8.
Article R626-47
Le commissaire à l'exécution du plan signale, dans un rapport adressé au président du tribunal et au ministère public, l'inexécution du plan de la part du débiteur ou de toute autre personne.
Le rapport fait état des observations du débiteur et propose éventuellement les solutions qui seraient de nature à permettre l'exécution du plan.
Le commissaire à l'exécution du plan rend compte de sa mission au président du tribunal.
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Article R626-48
En application du I de l'article L. 626-27, le tribunal est saisi aux fins de résolution du plan par voie de requête ou, le cas échéant, dans les formes et selon la procédure prévue à l'article R. 631-3 ou R. 631-4. Il statue dans les conditions de l'article L. 626-9, le commissaire à l'exécution du plan étant entendu ou dûment appelé et présentant son rapport en lieu et place de celui de l'administrateur.
Lorsque le tribunal décide la résolution du plan en application du troisième alinéa du I de l'article L. 626-27, il ouvre, dans le même jugement, une procédure, selon le cas, de redressement judiciaire ou de liquidation judiciaire du débiteur.
Le jugement est signifié à la diligence du greffier dans les huit jours de son prononcé aux personnes qui ont qualité pour interjeter appel, à l'exception du ministère public.
Il est communiqué aux personnes mentionnées à l'article R. 621-7.
Le jugement qui décide la résolution du plan fait l'objet des publicités prévues à l'article R. 621-8.
Article R626-49
Pour l'application du III de l'article L. 626-27, le commissaire à l'exécution du plan transmet au greffier la liste des créances admises à ce plan en déduisant, pour chacune d'elles, les sommes déjà perçues. Le greffier porte cette liste sur l'état des créances de la nouvelle procédure.
Article R626-50
Lorsqu'il est saisi en application de l'article L. 626-28, le tribunal statue au vu d'un rapport établi par le commissaire à l'exécution du plan.
La décision du tribunal est communiquée au ministère public.
A l'initiative du débiteur, les décisions relatives à la procédure sont radiées des registres sur lesquels elles ont été portées.
Article R626-51
Dans les deux mois qui suivent l'achèvement de sa mission, le commissaire à l'exécution du plan dépose un compte-rendu de fin de mission dans les conditions des articles R. 626-39 et R. 626-40.
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L'article R. 626-41 est applicable.
Section 3 : Des comités de créanciers.
Article R626-52
Les seuils fixés en application de l'article L. 626-29 sont de 150 salariés et de 20 millions d'euros de chiffre d'affaires.
Ils sont définis conformément aux dispositions du deuxième et du troisième alinéa de l'article R. 621-11.
Article R626-53
Lorsque le tribunal n'a pas désigné d'administrateur et que le juge-commissaire autorise qu'il soit fait application des dispositions des articles L. 626-29 à L. 626-35, le juge-commissaire désigne un administrateur aux fins d'exercer les missions qui lui sont dévolues par les articles L. 626-30 à L. 626-33.
Article R626-54
La décision par laquelle le juge-commissaire autorise qu'il soit fait application des dispositions des articles L. 626-29 à L. 626-35 est une mesure d'administration judiciaire non susceptible de recours.
Article R626-55
L'administrateur avise chacun des créanciers mentionné au deuxième alinéa de l'article L. 626-30 qu'il est membre de droit du comité des établissements de crédit.
Les établissements de crédit et assimilés sont ceux mentionnés à l'article L. 511-1 du code monétaire et financier, les institutions mentionnées à l'article L. 518-1 du même code, les établissements intervenant en libre établissement ou en libre prestation de services sur le territoire des Etats parties à l'accord sur l'Espace économique européen mentionnés au livre V du même code et toute autre entité auprès de laquelle le débiteur a conclu une opération de crédit.
Article R626-56
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Pour déterminer la composition du comité des principaux fournisseurs, est pris en compte le montant des créances toutes taxes comprises existant à la date du jugement d'ouverture.
A cette fin, le débiteur remet sans délai à l'administrateur la liste des créances de ses fournisseurs ainsi que le montant de chacune d'entre elles, certifié par son ou ses commissaires aux comptes ou, lorsqu'il n'en a pas été désigné, établi par son expert-comptable.
L'administrateur avise chaque fournisseur dont les créances représentent plus de 3 % du total des créances toutes taxes comprises des fournisseurs qu'il est membre de droit du comité des principaux fournisseurs.
Article R626-57
Au plus tard quinze jours avant la présentation au comité des principaux fournisseurs des propositions du débiteur, l'administrateur peut demander à tout fournisseur dont les créances ne représentent pas plus de 3 % du total des créances toutes taxes comprises des fournisseurs d'être membre de ce comité.
A défaut d'une acceptation écrite adressée à l'administrateur dans un délai de huit jours à compter de la réception de l'avis, le fournisseur sollicité est réputé avoir refusé.
Article R626-57-1
Pour l'application du troisième alinéa de l'article L. 626-30-1, le transfert d'une créance née antérieurement au jugement d'ouverture est porté à la connaissance de l'administrateur par lettre recommandée avec demande d'avis de réception.
Article R626-57-2
Le créancier membre d'un comité qui entend soumettre des propositions en application de l'article L. 626-30-2 transmet celles-ci, par tout moyen, au débiteur et à l'administrateur. Le débiteur, avec le concours de l'administrateur, apprécie s'il y a lieu de les soumettre au comité de créanciers.
Article R626-58
Le montant des créances mentionné au quatrième alinéa de l'article L. 626-30-2, calculé toutes taxes comprises, est arrêté, par l'administrateur, huit jours avant la date du vote.
Article R626-59
L'administrateur invite le mandataire judiciaire et les représentants du comité d'entreprise ou, à défaut, des délégués du personnel à présenter leurs observations à chacun des comités avant que ceux-ci ne se prononcent sur le projet de plan.
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Article R626-60
Pour l'application de l'article L. 626-32, un avis de convocation de l'assemblée générale des obligataires est inséré à l'initiative de l'administrateur dans un journal habilité à recevoir les annonces légales dans le département du siège social du débiteur et, en outre, si le débiteur a fait publiquement appel à l'épargne ou si toutes ses obligations ne revêtent pas la forme nominative, au Bulletin des annonces légales obligatoires. Cet avis contient les indications prévues à l'article R. 228-66 et l'indication du lieu mentionné à l'article R. 626-61.
Si toutes les obligations émises par le débiteur sont nominatives, les insertions prévues à l'alinéa précédent peuvent être remplacées par une convocation adressée à chaque obligataire par lettre simple ou recommandée. Dans le cas d'obligations indivises, les convocations sont adressées à tous les co-indivisaires. Lorsque les obligations sont grevées d'un usufruit, la convocation est adressée au nu-propriétaire.
Le délai entre la date soit de l'insertion contenant l'avis de convocation, soit de l'envoi des lettres de convocation et la date du vote par l'assemblée générale des obligataires est au moins de quinze jours.
Article R626-61
Chaque obligataire a le droit, pendant le délai de quinze jours qui précède la réunion de l'assemblée générale, de prendre par lui-même ou par mandataire, en tout lieu fixé par la convocation, connaissance du projet de plan adopté par les comités de créanciers.
Le débiteur, avec le concours de l'administrateur, présente à l'assemblée générale des obligataires le projet de plan adopté par les comités de créanciers.
Article R626-62
L'administrateur est seul compétent pour décider des modalités de déroulement du vote par les comités et l'assemblée générale des obligataires.S'il décide que le vote a lieu à bulletin secret, sa décision ne peut faire l'objet d'aucune contestation. Sont scrutateurs de l'assemblée ou du comité les deux obligataires ou créanciers titulaires des créances les plus importantes et acceptant cette fonction.
Article R626-63
Le délai pour former les contestations relatives à l'application des articles L. 626-30 à L. 626-32 est de dix jours à compter du vote du comité de créanciers ou de l'assemblée générale des obligataires dont est membre l'auteur de la contestation.A peine d'irrecevabilité, les contestations sont formées par déclaration déposée au greffe contre récépissé. Une copie de la déclaration est adressée par lettre simple au débiteur et à l'administrateur par le greffier.
Le greffier convoque l'auteur de la contestation, par lettre simple, à l'audience au cours de laquelle il sera débattu de l'arrêté ou de la modification du plan.
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L'audience ne peut avoir lieu moins de cinq jours après l'expiration du délai imparti pour former les contestations.
Le jugement est notifié, par le greffier, à l'auteur de la contestation.
Chapitre VII : Dispositions particulières en l'absence d'administrateur judiciaire.
Article R627-1
En l'absence d'administrateur, le cocontractant adresse au débiteur la mise en demeure prévue à l'article L. 622-13, par lettre recommandée avec demande d'avis de réception. Il en informe simultanément le mandataire judiciaire en lui adressant copie de cette mise en demeure par lettre recommandée avec demande d'avis de réception.
Le mandataire judiciaire doit, sans délai, faire part de son avis au débiteur et au cocontractant.
A défaut de réponse du mandataire dans le délai de quinze jours à compter de la réception par le débiteur de la mise en demeure, ce dernier peut saisir le juge-commissaire.
La saisine du juge-commissaire suspend le délai de réponse prévu au 1° du III de l'article L. 622-13. Le greffier avise le cocontractant de cette saisine et de son effet suspensif.
Les dispositions de l'article R. 622-13 sont applicables lorsque le débiteur exerce la faculté ouverte à l'administrateur de demander la résiliation des contrats en cours. Le débiteur joint à sa requête l'avis conforme du mandataire judiciaire s'il l'a obtenu. Le greffier avise le mandataire judiciaire, aux lieu et place de l'administrateur, de la date de l'audience.
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Partie réglementaire
LIVRE VI : Des difficultés des entreprises.
TITRE III : Du redressement judiciaire.
Chapitre Ier : De l'ouverture et du déroulement de la procédure.
Section 1 : De l'ouverture de la procédure
Sous-section 1 : De la saisine et de la décision du tribunal.
Article R631-1
La demande d'ouverture de la procédure de redressement judiciaire est déposée par le représentant légal de la personne morale ou par le débiteur personne physique au greffe du tribunal compétent.
A cette demande sont jointes, outre les comptes annuels du dernier exercice, les pièces ci-après :
1° L'état du passif exigible et de l'actif disponible ainsi qu'une déclaration de cessation des paiements ;
2° Un extrait d'immatriculation aux registres et répertoires mentionnés à l'article R. 621-8 ;
3° Une situation de trésorerie datant de moins d'un mois ;
4° Le nombre des salariés employés à la date de la demande, le nom et l'adresse de chacun d'entre eux et le montant du chiffre d'affaires, défini conformément aux dispositions du cinquième alinéa de l'article R. 123-200, apprécié à la date de clôture du dernier exercice comptable ;
5° L'état chiffré des créances et des dettes avec l'indication des noms et du domicile des créanciers et, pour les salariés, le montant global des sommes impayées ;
6° L'état actif et passif des sûretés ainsi que celui des engagements hors bilan ;
7° L'inventaire sommaire des biens du débiteur ;
8° S'il s'agit d'une personne morale comportant des membres responsables solidairement des dettes sociales, la liste de ceux-ci avec l'indication de leur nom et domicile ;
9° Le nom et l'adresse des représentants du comité d'entreprise ou des délégués du personnel
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habilités à être entendus par le tribunal s'ils ont déjà été désignés ;
10° Une attestation sur l'honneur certifiant l'absence de mandat ad hoc ou de procédure de conciliation dans les dix-huit mois précédant la date de la demande ou, dans le cas contraire, mentionnant la date de la désignation du mandataire ad hoc ou de l'ouverture de la procédure de conciliation ainsi que l'autorité qui y a procédé ;
11° Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, la désignation de l'ordre professionnel ou de l'autorité dont il relève ;
12° Lorsque le débiteur exploite une ou des installations classées au sens du titre Ier du livre V du code de l'environnement, la copie de la décision d'autorisation ou d'enregistrement ou la déclaration.
Ces documents sont datés, signés et certifiés sincères et véritables par le demandeur. Ceux qui sont mentionnés aux l°, 2°, 5°, 6°, 7° et 8° sont établis à la date de la demande ou dans les sept jours qui précèdent.
Dans le cas où l'un ou l'autre de ces documents ne peut être fourni ou ne peut l'être qu'incomplètement, la demande indique les motifs qui empêchent cette production.
Article R631-2
L'assignation d'un créancier précise la nature et le montant de la créance et contient tout élément de preuve de nature à caractériser la cessation des paiements du débiteur. Lorsqu'il s'agit d'une exploitation agricole, le créancier joint à sa demande une attestation, délivrée par le greffier, de la saisine du président du tribunal de grande instance aux fins de désignation d'un conciliateur.
La demande d'ouverture d'une procédure de redressement judiciaire est à peine d'irrecevabilité, qui doit être soulevée d'office, exclusive de toute autre demande, à l'exception d'une demande d'ouverture d'une procédure de liquidation judiciaire formée à titre subsidiaire.
Article R631-3
En cas de saisine d'office, le président du tribunal fait convoquer le débiteur à la diligence du greffier, par acte d'huissier de justice, à comparaître dans le délai qu'il fixe.
A la convocation est jointe une note par laquelle le président expose les faits de nature à motiver la saisine d'office.
Le greffier adresse copie de cette note au ministère public.
Article R631-4
Lorsque le ministère public demande l'ouverture de la procédure, il présente au tribunal une requête indiquant les faits de nature à motiver cette demande. Le président du tribunal, par les soins du greffier, fait convoquer le débiteur par acte d'huissier de justice à comparaître dans le délai qu'il
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fixe.
A cette convocation est jointe la requête du ministère public.
Article R631-5
Lorsque, dans le cas prévu au deuxième alinéa de l'article L. 631-3, le tribunal décide de se saisir d'office ou est saisi sur la requête du ministère public, les articles R. 631-3 et R. 631-4 sont applicables aux héritiers du débiteur dont l'adresse est connue. S'il existe des héritiers dont l'adresse est inconnue, le président du tribunal de grande instance se saisissant d'office, ou saisi sur la requête du ministère public, de l'administrateur ou du mandataire judiciaire désigne un mandataire chargé de les représenter.
Article R631-6
La cour d'appel qui annule ou infirme un jugement statuant sur l'ouverture de la procédure de redressement judiciaire peut, d'office, ouvrir la procédure de redressement judiciaire ou de liquidation judiciaire.
Article R631-7
Les articles R. 621-2 à R. 621-4, R. 621-7 à R. 621-9 et R. 621-14 à R. 621-16 sont applicables à la procédure de redressement judiciaire sous réserve des dispositions de la présente section.
Article R631-8
Le cas échéant, le greffier avertit les créanciers poursuivants qu'ils peuvent prendre connaissance au greffe du rapport mentionné au deuxième alinéa de l'article R. 621-3 et les avise en même temps de la date de l'audience.
Article R631-9
Pour l'application de l'article R. 621-11, le nombre des salariés à prendre en compte est apprécié à la date de la demande ou, en cas de saisine d'office, à la date de la convocation du débiteur.
Article R631-10
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Pour l'application de l'article R. 621-4, si le jugement ne peut être rendu sur-le-champ, la date de son prononcé est communiquée au débiteur et, le cas échéant, au créancier poursuivant.
Article R631-11
Lorsqu'il apparaît que le débiteur ne remplit pas les conditions requises pour l'ouverture d'une procédure de redressement judiciaire, le tribunal rejette la demande.
A défaut d'avoir été saisi d'une demande aux fins d'ouverture d'une procédure de liquidation judiciaire, formée à titre subsidiaire dans l'acte introductif d'instance ou à l'audience en présence du débiteur ou de son représentant, et si le tribunal estime devoir se saisir d'office en vue de l'ouverture d'une telle procédure, il est fait application des dispositions de l'article R. 631-3.
Article R631-12
Le jugement qui statue sur l'ouverture de la procédure est notifié au débiteur ou au créancier, lorsqu'il est demandeur, par le greffier dans les huit jours de son prononcé. Lorsque le débiteur n'est pas demandeur, le jugement lui est signifié dans le même délai.
Article R631-13
La décision par laquelle le tribunal modifie la date de cessation des paiements est notifiée au débiteur, communiquée aux personnes mentionnées à l'article R. 621-7 et fait l'objet des publicités prévues à l'article R. 621-8.
Article R631-14
A leur demande, l'administrateur délivre aux personnes dont les parts représentatives de leurs droits sociaux sont virées au compte spécial prévu à l'article L. 631-10 un certificat leur permettant de participer aux assemblées de la société.
Sauf décision contraire du tribunal, il est mis fin à ce compte spécial, à la demande de la personne intéressée la plus diligente après l'adoption du plan de redressement ou après la clôture des opérations.
En cas d'incessibilité ou de cession de parts sociales, titres de capital ou valeurs mobilières donnant accès au capital prononcée en application de l'article L. 631-19-1, il est mis fin au compte spécial après que la décision ordonnant la cession ou levant la mesure d'incessibilité est passée en force de chose jugée.
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Article R631-15
Les rémunérations ou subsides prévus à l'article L. 631-11 sont fixés par le juge-commissaire par décision spécialement motivée, l'administrateur, le mandataire judiciaire et le débiteur personne physique ou le dirigeant entendus ou dûment appelés.
Sous-section 2 : Des organes de la procédure et des contrôleurs.
Article R631-16
Les articles R. 621-10 à R. 621-25, à l'exclusion du premier alinéa de l'article R. 621-23 et de l'article R. 621-20, sont applicables à la procédure de redressement judiciaire.
Section 2 : Du déroulement de la procédure
Sous-section 1 : De la modification de la mission de l'administrateur.
Article R631-17
L'article R. 622-1 est applicable à la procédure de redressement judiciaire.
Sous-section 2 : Des mesures conservatoires au cours de la période d'observation.
Article R631-18
Les articles R. 622-2 à R. 622-5, à l'exclusion de l'article R. 622-4-1, sont applicables à la procédure de redressement judiciaire.
Les règles prévues aux quatrième à sixième alinéas de l'article R. 622-4 sont applicables à la prisée des actifs du débiteur effectuée en cas d'ouverture d'une procédure de redressement judiciaire ou de conversion d'une procédure de sauvegarde en un redressement judiciaire.
Sous-section 3 : De la gestion de l'entreprise au cours de la période d'observation.
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Article R631-19
Les articles R. 622-6 à R. 622-8 sont applicables à la procédure de redressement judiciaire.
L'article R. 622-6 est également applicable lorsque la demande d'autorisation présentée sur le fondement du II de l'article L. 622-7 émane de l'administrateur.
Pour l'application du deuxième alinéa de l'article R. 622-7, le juge-commissaire saisi d'une demande de paiement provisionnel statue sur avis de l'administrateur s'il en a été désigné ou, à défaut, du débiteur et du mandataire judiciaire.
Sous-section 4 : De la poursuite de l'activité de l'entreprise au cours de la période d'observation.
Article R631-20
Les articles R. 622-9 et R. 622-13 à R. 622-20 sont applicables à la procédure de redressement judiciaire, sous réserve des dispositions de la présente sous-section.
Article R631-21
L'administrateur, lorsqu'il en a été désigné, est tenu des obligations d'information qui incombent au débiteur en application des articles R. 622-9 et R. 622-16.
Article R631-22
Pour l'application de l'article R. 622-17, l'obligation de déclaration incombe à l'administrateur, lorsqu'il a pour mission d'administrer seul l'entreprise.
Pour l'application de l'article R. 622-20, l'administrateur est mis en cause quelle que soit sa mission.
Article R631-23
Aux fins de prononcé de la cessation partielle de l'activité en application du II de l'article L. 631-15, le tribunal est saisi par voie de requête ou, le cas échéant, dans les formes et selon la procédure prévues aux articles R. 631-3 ou R. 631-4.
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Le jugement qui ordonne la cessation partielle de l'activité est communiqué aux personnes citées à l'article R. 621-7 et mentionné aux registres ou répertoires prévus à l'article R. 621-8.
Article R631-24
Aux fins de prononcé de la liquidation judiciaire, le tribunal est saisi par voie de requête ou, le cas échéant, dans les formes et selon la procédure prévues aux articles R. 631-3 ou R. 631-4.
Le jugement qui prononce la liquidation judiciaire est notifié au débiteur dans les huit jours de son prononcé. Lorsque le débiteur n'est pas demandeur, le jugement lui est signifié dans le même délai.
Ce jugement est, en outre, signifié à la diligence du greffier, dans le même délai, aux personnes qui ont qualité pour interjeter appel, à l'exception du ministère public.
Il est communiqué aux personnes citées à l'article R. 621-7 et fait l'objet des publicités prévues à l'article R. 621-8.
Article R631-25
La décision par laquelle le tribunal met fin à la procédure en application de l'article L. 631-16 est suivie sans délai d'un compte rendu de fin de mission déposé par les mandataires de justice dans les conditions des articles R. 626-39 et R. 626-40. Elle est communiquée aux personnes mentionnées à l'article R. 621-7 et fait l'objet des publicités prévues à l'article R. 621-8. L'article R. 626-41 est applicable.
Sous-section 5 : De la situation des salariés au cours de la période d'observation.
Article R631-26
L'ordonnance rendue par le juge-commissaire en application de l'article L. 631-17 indique le nombre des salariés dont le licenciement est autorisé ainsi que les activités et catégories professionnelles concernées.
L'ordonnance est notifiée au comité d'entreprise ou, à défaut, aux délégués du personnel ou, le cas échéant, au représentant des salariés. Elle est transmise au ministère public, à l'administrateur et au mandataire judiciaire.
Sous-section 6 : De la déclaration de créances.
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Article R631-27
Les articles R. 622-21 à R. 622-26 sont applicables à la procédure de redressement judiciaire.
Sous-section 7 : De l'élaboration du plan économique, social et environnemental.
Article R631-28
Les articles R. 623-1 et R. 623-2 sont applicables à la procédure de redressement judiciaire.
Sous-section 8 : De la vérification et de l'admission des créances.
Article R631-29
Les articles R. 624-1, à l'exclusion du premier alinéa, et R. 624-2 à R. 624-11 sont applicables à la procédure de redressement judiciaire.
La vérification des créances est faite par le mandataire judiciaire en présence du débiteur ou celui-ci appelé, de l'administrateur s'il a pour mission d'assurer l'administration de l'entreprise et, le cas échéant, des contrôleurs désignés, présents ou dûment appelés.
Sous-section 9 : Des droits du conjoint du débiteur.
Article R631-30
Le conjoint du débiteur est entendu ou dûment convoqué avant toute décision ordonnant ou autorisant la vente des biens de la communauté.
Lorsque, au cours de la procédure, la dissolution de la communauté existant entre le débiteur et son conjoint devient opposable aux tiers, ce conjoint est entendu ou dûment convoqué avant toute décision ordonnant ou autorisant la vente des biens de l'indivision.
Sous-section 10 : Des droits du vendeur de meubles, des revendications et des restitutions.
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Article R631-31
Les articles R. 624-13 à R. 624-16 sont applicables à la procédure de redressement judiciaire.
Sous-section 11 : Du règlement des créances résultant d'un contrat de travail.
Article R631-32
Les articles R. 625-1 à R. 625-7 sont applicables à la procédure de redressement judiciaire.
Article R631-33
Lorsque des instances sont en cours devant la juridiction prud'homale à la date du jugement d'ouverture du redressement judiciaire, les informations relatives à l'objet et aux circonstances du litige ainsi que les éléments justificatifs sont transmis par le mandataire judiciaire aux institutions mentionnées à l'article L. 143-11-4 du code du travail, mises en cause devant la juridiction prud'homale conformément à l'article L. 631-18 du présent code.
Sous-section 12 : Du projet de plan.
Article R631-34
Les articles R. 626-1 à R. 626-3, relatifs à la convocation des assemblées, sont applicables à la procédure de redressement judiciaire.
Toutefois, pour l'application de l'article L. 626-3, l'administrateur convoque les assemblées si les dirigeants n'y procèdent pas.
Article R631-34-1
Lorsque le ministère public demande, en application de l'article L. 631-19-1, que l'adoption du plan soit subordonnée au remplacement d'un ou plusieurs dirigeants, il saisit le tribunal par une requête indiquant les faits de nature à motiver cette demande.
Le président du tribunal fait convoquer, à la diligence du greffier, le ou les dirigeants de la personne
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morale dont le remplacement est demandé, quinze jours au moins avant l'audience, par acte d'huissier de justice.A cette convocation est jointe la requête du ministère public.
Le tribunal statue après avoir entendu ou dûment appelé, le cas échéant, le débiteur, l'administrateur s'il en a été désigné, le mandataire judiciaire ainsi que les représentants du comité d'entreprise ou, à défaut, des délégués du personnel.
Le jugement est signifié à la diligence du greffier à chaque dirigeant en cause et au représentant légal de la personne morale. Les personnes citées à l'article R. 621-7 ainsi que les représentants du comité d'entreprise ou, à défaut, des délégués du personnel sont avisés de ce jugement.
Article R631-34-2
L'administrateur s'il en a été désigné ou le mandataire judiciaire convoque les organes sociaux compétents aux fins de délibérer sur la demande de remplacement.
Le tribunal statue sur le plan au vu de cette délibération.
Article R631-34-3
Le mandataire prévu au deuxième alinéa de l'article L. 631-19-1 peut être l'administrateur judiciaire.
Article R631-34-4
Les articles R. 626-7 et R. 626-8, relatifs à la consultation des créanciers, et la sous-section 4 de la section 1 du chapitre VI du titre II du présent livre, relative au règlement des créances publiques, sont applicables à la procédure de redressement judiciaire.
Sous-section 13 : Du jugement arrêtant le plan.
Article R631-35
Les articles R. 626-17 à R. 626-51, à l'exclusion de l'article R. 626-18, des deuxième et troisième alinéas de l'article R. 626-20, et de l'article R. 626-22, sont applicables à la procédure de redressement judiciaire.
Le greffier procède aux convocations et avis mentionnés à l'article R. 626-17 dès le dépôt au greffe du projet de plan par l'administrateur.
Pour l'application de l'article R. 626-48, lorsque le tribunal décide la résolution du plan en application du troisième alinéa du I de l'article L. 626-27, il ouvre, dans le même jugement, la liquidation judiciaire du débiteur.
Article R631-36
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Lorsqu'en application du II de l'article L. 631-19 l'administrateur ou le débiteur prévoit dans son projet de plan des licenciements pour motif économique, il joint au rapport déposé au greffe ou il produit à l'audience les documents suivants :
1° Le procès-verbal des délibérations du comité d'entreprise ou des délégués du personnel consultés en application de l'article L. 321-9 du code du travail ;
2° La copie de la lettre informant l'autorité administrative, en application de l'article L. 321-8 du code du travail, du projet de licenciement.
Le jugement arrêtant le plan indique le nombre de salariés dont le licenciement est autorisé ainsi que les activités et catégories professionnelles concernées.
Sous-section 14 : Des comités de créanciers.
Article R631-37
Les articles R. 626-52 à R. 626-63 sont applicables à la procédure de redressement judiciaire. L'administrateur, avec le concours du débiteur, exerce les prérogatives dévolues à ce dernier par les articles R. 626-57-2 et R. 626-61.
Sous-section 15 : Dispositions particulières en l'absence d'administrateur judiciaire.
Article R631-38
L'article R. 627-1 est applicable à la procédure de redressement judiciaire. Le mandataire judiciaire exerce les fonctions dévolues à l'administrateur par l'article R. 631-14.
Sous-section 16 : De la cession partielle ou totale de l'entreprise.
Article R631-39
Sans préjudice de l'application des deux premiers alinéas de l'article R. 642-40, l'administrateur communique au greffe les caractéristiques essentielles de l'entreprise ou de la ou des branches d'activité susceptibles d'être cédées en application de l'article L. 631-22. Il fixe le délai dans lequel
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les offres peuvent lui être soumises en application de l'article L. 631-13. Tout intéressé peut prendre connaissance de ces informations au greffe.
L'administrateur porte le délai fixé pour le dépôt des offres à la connaissance du mandataire judiciaire et des contrôleurs.
Toute offre doit être communiquée à l'administrateur dans le délai qu'il a fixé. Sauf accord entre le débiteur, le représentant des salariés, le mandataire judiciaire et les contrôleurs, le délai entre la réception d'une offre par l'administrateur et l'audience au cours de laquelle le tribunal examine cette offre est de quinze jours au moins.
Article R631-40
Les articles R. 642-1 à R. 642-21, à l'exclusion du premier alinéa de l'article R. 642-10, sont applicables à la cession mentionnée à l'article L. 631-22.
Le mandataire judiciaire exerce les missions dévolues au liquidateur par les articles R. 642-8, R. 642-18, R. 642-20 et R. 642-21.
Article R631-42
Lorsque la cession totale ou partielle de l'entreprise a été ordonnée par le tribunal en application de l'article L. 631-22, le mandataire judiciaire reçoit le prix de cession nonobstant la passation des actes par l'administrateur.
Lorsque le débiteur bénéficie d'un plan de redressement, le mandataire judiciaire remet le prix au commissaire à l'exécution du plan.
Lorsque le débiteur est soumis à une liquidation judiciaire, le mandataire judiciaire conserve le prix en sa qualité de liquidateur ou le remet au liquidateur désigné par le tribunal.
Sous-section 17 : De la clôture de la procédure.
Article R631-43
Lorsque le compte rendu de fin de mission de l'administrateur et du mandataire judiciaire ont été approuvés par le juge-commissaire, la procédure fait l'objet d'une ordonnance de clôture rendue par le président du tribunal.
Cette décision est une mesure d'administration judiciaire non susceptible de recours.
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Elle est communiquée aux personnes citées à l'article R. 621-7 et mentionnée aux registres et répertoires prévus à l'article R. 621-8.
Chapitre II : de la nullité de certains actes.
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Partie réglementaire
LIVRE VI : Des difficultés des entreprises.
TITRE IV : De la liquidation judiciaire.
Chapitre préliminaire : De l'ouverture et du déroulement de la liquidation judiciaire.
Article R640-1
La demande d'ouverture de la procédure de liquidation judiciaire est présentée selon les modalités prévues aux articles R. 631-1, R. 631-2, à l'exception du deuxième alinéa, et R. 631-3 à R. 631-5.
La demande d'ouverture d'une procédure de liquidation judiciaire présentée par un créancier est à peine d'irrecevabilité, qui doit être soulevée d'office, exclusive de toute autre demande, à l'exception d'une demande d'ouverture d'une procédure de redressement judiciaire formée à titre subsidiaire.
Les éléments de nature à établir que le redressement est manifestement impossible doivent être joints à la demande du débiteur, à l'assignation d'un créancier, à la requête du ministère public, à la note du président du tribunal en cas de saisine d'office ou au rapport du juge commis par le tribunal.
Article R640-2
La cour d'appel qui annule un jugement statuant sur l'ouverture de la procédure de liquidation judiciaire ou son prononcé peut, d'office, ouvrir la procédure de liquidation judiciaire ou la prononcer.
En cas d'infirmation d'un jugement ouvrant la procédure de liquidation judiciaire, elle peut, d'office, ouvrir la procédure de redressement judiciaire.
Chapitre Ier : Du jugement de liquidation judiciaire.
Section 1 : De la saisine et de la décision du tribunal.
Article R641-1
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Les dispositions des articles R. 621-2 à R. 621-4, R. 621-7, R. 621-8-1, à l'exception du dernier alinéa, R. 621-10 et R. 621-12 à R. 621-16 sont applicables à la procédure de liquidation judiciaire sous réserve des dispositions de la présente section.
Article R641-2
Le cas échéant, le greffier avertit les créanciers poursuivants qu'ils peuvent prendre connaissance au greffe du rapport mentionné au second alinéa de l'article R. 621-3 et les avise en même temps de la date de l'audience.
Article R641-4
Pour l'application de l'article R. 621-4, si le jugement ne peut être rendu sur-le-champ, la date de son prononcé est communiquée au débiteur et, le cas échéant, au créancier poursuivant.
Article R641-5
Lorsqu'il apparaît que le débiteur ne remplit pas les conditions requises pour l'ouverture d'une procédure de liquidation judiciaire, le tribunal rejette la demande.
A défaut d'avoir été saisi d'une demande aux fins d'ouverture d'une procédure de redressement judiciaire, formée à titre subsidiaire dans l'acte introductif d'instance ou à l'audience en présence du débiteur ou de son représentant et si le tribunal estime devoir se saisir d'office en vue de l'ouverture d'une telle procédure, il est fait application des dispositions de l'article R. 631-3.
Article R641-6
Le jugement statuant sur l'ouverture de la procédure de liquidation judiciaire est notifié au débiteur ou au créancier par le greffier dans les huit jours de son prononcé. Lorsque le débiteur n'est pas demandeur, le jugement lui est signifié dans le même délai.
Il est communiqué aux personnes mentionnées à l'article R. 621-7.
Article R641-7
Le jugement ouvrant la procédure de liquidation judiciaire ou prononçant son extension fait l'objet des mesures de publicité prévues à l'article R. 621-8.
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Toutefois, en cas d'appel du ministère public en application de l'article L. 661-1 ou en cas d'arrêt de l'exécution provisoire ordonnée en vertu du troisième alinéa de l'article R. 661-1, ces publicités ne sont effectuées par le greffier du tribunal qu'au vu de l'arrêt de la cour d'appel qui lui est transmis par le greffier de la cour d'appel dans les huit jours de son prononcé.
Article R641-8
Les dispositions des articles R. 621-12 et R. 621-13 applicables au mandataire judiciaire le sont au liquidateur désigné par le tribunal lorsque celui-ci n'est pas inscrit sur la liste prévue par l'article L. 812-2.
Article R641-9
La décision par laquelle le tribunal modifie la date de cessation des paiements est notifiée au débiteur par le greffier, communiquée aux personnes mentionnées à l'article R. 621-7 et fait l'objet des publicités prévues à l'article R. 621-8.
Section 2 : Des conditions d'application de la liquidation judiciaire simplifiée.
Article D641-10
Les seuils prévus par l'article L. 641-2, pour l'application obligatoire de la procédure de liquidation judiciaire simplifiée, sont fixés pour le chiffre d'affaires hors taxes à 300 000 € et pour le nombre de salariés à 1.
Les seuils prévus par l'article L. 641-2-1, pour l'application facultative de la procédure de liquidation judiciaire simplifiée, sont fixés pour le chiffre d'affaires hors taxes à 750 000 € et pour le nombre de salariés à 5.
Le montant du chiffre d'affaires est défini conformément aux dispositions du cinquième alinéa de l'article R. 123-200. Il est apprécié à la date de clôture du dernier exercice comptable.
Le nombre de salariés mentionné au premier ou au deuxième alinéa ne doit pas avoir été dépassé au cours des six mois précédant l'ouverture de la procédure.
Section 3 : Des organes de la procédure et des contrôleurs.
Article R641-11
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A l'exception de l'article R. 621-20 et du premier alinéa de l'article R. 621-23, les dispositions des articles R. 621-17 à R. 621-24 et R. 622-18 sont applicables aux organes de la procédure et aux contrôleurs.
Le juge-commissaire statue dans les conditions de l'article R. 621-21 sur les réclamations formulées contre les actes du liquidateur.
Les obligations d'information incombant au mandataire judiciaire en application des articles R. 621-18 et R. 621-19 incombent au liquidateur.
Article R641-12
Lorsqu'une demande de remplacement du liquidateur est formée devant le tribunal, en application de l'article L. 641-1-1, les dispositions de l'article R. 621-17 sont applicables. Il en est de même pour une demande d'adjonction d'un ou de plusieurs liquidateurs ou lorsque le liquidateur demande son remplacement.
Article R641-13
Les fonctions du juge-commissaire et des contrôleurs prennent fin au jour où le compte rendu de fin de mission du liquidateur a été approuvé.
Section 4 : Des mesures conservatoires.
Article R641-14
Les articles R. 622-2 à R. 622-5, à l'exclusion de l'article R. 622-4-1, sont applicables à la procédure de liquidation judiciaire. Le liquidateur exerce les fonctions dévolues au mandataire judiciaire par ces dispositions.
Les règles prévues aux quatrième à sixième alinéas de l'article R. 622-4 sont applicables à la prisée des actifs du débiteur effectuée en cas d'ouverture d'une procédure de liquidation judiciaire ou de prononcé d'une telle procédure au cours d'une procédure de sauvegarde.
Article R641-15
Le juge-commissaire peut ordonner l'apposition des scellés sur tout ou partie des biens du débiteur. Dans ce cas, il est procédé selon les règles prévues pour les scellés après décès.
Il est donné avis de l'apposition des scellés au juge-commissaire qui l'a ordonnée.
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Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, l'apposition des scellés a lieu en présence d'un représentant de l'ordre professionnel ou de l'autorité dont il relève.
Article R641-16
Les biens, documents et effets dispensés ou extraits de scellés par décision du juge-commissaire sont inventoriés sans délai avec estimation de leur valeur par la personne chargée de réaliser l'inventaire. Leur état est décrit sommairement dans le procès-verbal d'apposition des scellés.
Article R641-17
Le liquidateur ou l'administrateur, s'il en a été désigné un, requiert la levée des scellés en vue des opérations d'inventaire.
Section 5 : Du maintien de l'activité.
Article R641-18
Le maintien de l'activité peut être autorisé dans les conditions prévues à l'article L. 641-10 pour une période qui ne peut excéder trois mois, sous réserve des dispositions applicables aux exploitations agricoles.
Cette autorisation peut être prolongée une fois, pour la même période, à la demande du ministère public.
Article R641-19
Les seuils au-delà desquels le tribunal désigne un administrateur pour administrer l'entreprise sont identiques aux seuils fixés par l'article R. 621-11.
Article R641-20
Le liquidateur ou l'administrateur qui assure l'administration de l'entreprise après l'ouverture ou le prononcé de la liquidation judiciaire tient informés le juge-commissaire et le ministère public des
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résultats de l'activité à l'issue de la période pendant laquelle elle a été poursuivie.
Article R641-21
Le greffier avise le cocontractant de la décision du juge-commissaire accordant au liquidateur, ou à l'administrateur lorsqu'il en a été désigné, la prolongation prévue au 1° du III de l'article L. 641-11-1.
Le juge-commissaire constate, sur la demande de tout intéressé, la résiliation de plein droit des contrats dans les cas prévus au III de l'article L. 641-11-1 et à l'article L. 641-12 ainsi que la date de cette résiliation.
La demande de résiliation présentée par l'administrateur ou, à défaut, le liquidateur en application du IV de l'article L. 641-11-1 est formée par requête adressée ou déposée au greffe. Le greffier convoque le débiteur et le cocontractant par lettre recommandée avec demande d'avis de réception et avise l'administrateur ou, à défaut, le liquidateur de la date de l'audience.
Les dispositions du présent article sont également applicables lorsque le maintien de l'activité n'a pas été autorisé.
Article R641-22
La décision du juge-commissaire qui autorise les prêts et accorde les délais de paiement conformément au 2° du III de l'article L. 641-13 est transcrite sur le registre tenu à cet effet au greffe du tribunal avec l'indication de l'identité du débiteur, du montant des prêts, de l'identification du prêteur et de l'échéance des prêts ou des délais de paiement.
Section 6 : Des instances interrompues et des procédures d'ordre en cours.
Article R641-23
Les articles R. 622-19 et R. 622-20 sont applicables à la procédure de liquidation judiciaire.
Article R641-24
Pour l'application de l'article R. 622-19, les fonds sont remis au liquidateur aux fins de répartition.
En cas de prononcé de la liquidation judiciaire pendant le cours d'une période d'observation, le
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mandataire judiciaire les remet au liquidateur à cette fin.
Section 7 : De la déclaration des créances.
Article R641-25
Les articles R. 622-21 à R. 622-25 sont applicables à la procédure de liquidation judiciaire. Le liquidateur exerce les fonctions dévolues au mandataire judiciaire par ces dispositions.
Article R641-26
Les instances et les procédures civiles d'exécution suspendues en application du deuxième alinéa de l'article L. 622-28 sont poursuivies à l'initiative des créanciers bénéficiaires de garanties mentionnés au dernier alinéa de cet article sur justification du jugement prononçant la liquidation judiciaire.
En application du troisième alinéa de l'article L. 622-28, ces créanciers peuvent pratiquer des mesures conservatoires dans les conditions prévues aux articles 210 et suivants du décret n° 92-755 du 31 juillet 1992 instituant de nouvelles règles relatives aux procédures civiles d'exécution pour l'application de la loi n° 91-650 du 9 juillet 1991 portant réforme des procédures civiles d'exécution.
Section 8 : De la vérification et de l'admission des créances.
Article R641-27
Le liquidateur, dans les deux mois de son entrée en fonctions, remet au juge-commissaire un état mentionnant l'évaluation des actifs et du passif privilégié et chirographaire.
Au vu de cet état et après avoir recueilli les observations du liquidateur, le juge-commissaire décide s'il y a lieu ou non, conformément à l'article L. 641-4, d'engager ou de poursuivre la vérification des créances chirographaires.
Article R641-28
Les articles R. 624-1 à R. 624-11 sont applicables à la procédure de liquidation judiciaire. Le liquidateur exerce les fonctions dévolues au mandataire judiciaire par ces dispositions.
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Article R641-29
Lorsque la liquidation judiciaire est prononcée au cours d'une procédure de sauvegarde ou de redressement judiciaire, le liquidateur complète la liste des créances mentionnées à l'article R. 624-2. Il dépose la liste ainsi complétée au greffe. Tout créancier peut en prendre connaissance.
Section 9 : Des droits du conjoint du débiteur.
Article R641-30
Le conjoint du débiteur doit être entendu ou dûment convoqué avant toute décision ordonnant ou autorisant la vente des biens de la communauté.
Lorsque, au cours de la procédure, la dissolution de la communauté existant entre le débiteur et son conjoint devient opposable aux tiers, ce conjoint est entendu ou dûment convoqué avant toute décision ordonnant ou autorisant la vente des biens de l'indivision.
Section 10 : Des droits du vendeur de meubles, des revendications et des restitutions.
Article R641-31
Les articles R. 624-13 à R. 624-16 sont applicables à la procédure de liquidation judiciaire. Le liquidateur exerce les fonctions dévolues par ces dispositions au mandataire judiciaire. Lorsqu'il n'a pas été désigné d'administrateur, le liquidateur exerce également les fonctions dévolues à l'administrateur par ces dispositions.
Article R641-32
Le bien qui ne fait pas l'objet d'une demande en restitution peut être vendu selon les formes prévues au titre IV du livre VI de la partie législative du présent code à l'expiration d'un délai d'un mois après l'envoi d'une mise en demeure au propriétaire. Cette mise en demeure, qui peut être envoyée dès l'ouverture de la procédure, est adressée par le liquidateur au dernier domicile connu du propriétaire par lettre recommandée avec demande d'avis de réception.
Le prix de vente est consigné par le liquidateur à la Caisse des dépôts et consignations et, sous déduction des frais, est tenu à la disposition du créancier, qui en est averti par le liquidateur par lettre recommandée avec demande d'avis de réception. Après clôture de la procédure, le montant
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ainsi consigné est restitué au créancier ou à ses ayants droit par la Caisse des dépôts et consignations sur ordonnance du président.
Section 11 : Du règlement des créances résultant du contrat de travail.
Article R641-33
Les articles R. 625-1 à R. 625-7 sont applicables à la procédure de liquidation judiciaire. Le liquidateur exerce les fonctions dévolues par ces dispositions au mandataire judiciaire. Il remplit l'obligation mise à la charge du débiteur par le deuxième alinéa de l'article R. 625-1.
Article R641-34
Lorsque des instances sont en cours devant la juridiction prud'homale à la date du jugement d'ouverture de la liquidation judiciaire, les informations relatives à l'objet et aux circonstances du litige ainsi que les éléments justificatifs sont transmis par le liquidateur aux institutions mentionnées à l'article L. 143-11-4 du code du travail, mises en cause devant la juridiction prud'homale conformément à l'article L. 641-14 du présent code.
Section 12 : Dispositions diverses.
Article R641-36
Lorsque le débiteur exerce une profession libérale soumise à un statut législatif ou réglementaire ou dont le titre est protégé, le tribunal désigne, lors de l'ouverture de la procédure, le représentant de l'ordre professionnel ou de l'autorité compétente dont, le cas échéant, il relève, aux fins d'exercer les actes de la profession.
Ce représentant peut déléguer cette mission à l'un des membres de la profession, en activité ou retraité.
Les rémunérations ou subsides prévus à l'article L. 631-11 sont fixés par le juge-commissaire après avis du liquidateur et de l'administrateur, lorsqu'il en a été désigné.
Pour l'application du premier alinéa, le juge-commissaire fixe la rémunération de la personne chargée d'exercer les actes de la profession.
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Article R641-37
Le liquidateur peut faire fonctionner sous sa signature les comptes bancaires du débiteur pendant un délai de six mois à compter du jugement prononçant la liquidation ou, au-delà, pendant la durée du maintien de l'activité autorisée par le tribunal en application de l'article L. 641-10. L'utilisation ultérieure de ces comptes est subordonnée à l'autorisation du juge-commissaire délivrée après avis du ministère public.
En cas de maintien de l'activité, cette disposition bénéficie à l'administrateur, lorsqu'il en a été désigné.
Article R641-38
Outre les informations trimestrielles mentionnées à l'article L. 641-7, le liquidateur remet à tout moment, à leur demande, et au moins le 31 décembre de chaque année, au juge-commissaire et au procureur de la République un rapport de liquidation indiquant :
1° Le montant du passif admis ou, à défaut, l'état de la vérification des créances ;
2° L'état des opérations de réalisation d'actif ;
3° L'état de répartition aux créanciers ;
4° L'état des sommes détenues à la Caisse des dépôts et consignations ;
5° Les perspectives d'évolution et de clôture de la procédure.
Le débiteur et tout créancier peuvent prendre connaissance de ce rapport au greffe.
Article R641-39
La liste des créances mentionnées au I de l'article L. 641-13, portées à la connaissance de l'administrateur lorsqu'il en a été désigné ou du liquidateur, en application du IV du même article, est déposée, par le liquidateur, au greffe à l'issue du délai de six mois à compter de la publication du jugement ouvrant ou prononçant la liquidation ou, le cas échéant, à l'issue du délai d'un an à compter de celle du jugement arrêtant le plan de cession de l'entreprise. Tout intéressé peut en prendre connaissance. Le greffier fait publier au Bulletin officiel des annonces civiles et commerciales une insertion indiquant ce dépôt.
Tout intéressé peut contester cette liste devant le juge-commissaire dans un délai d'un mois à compter de la publication.
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Les créances rejetées par le juge-commissaire sont réputées avoir été déclarées dans les conditions prévues par l'article L. 622-24.
Dans ce cas, le créancier adresse au liquidateur les informations prévues à l'article L. 622-25 et à l'article R. 622-23.
Article R641-40
En application de l'article L. 641-15, le liquidateur peut, sur ordonnance du juge-commissaire, demander au représentant légal de la personne morale ou au débiteur personne physique ou à tout autre salarié du débiteur pouvant recevoir des informations utiles de transférer de façon automatique le courrier électronique de leurs messageries professionnelles vers l'adresse électronique qu'il leur désigne.
A cette fin, le liquidateur et, le cas échéant, l'administrateur peuvent également requérir l'assistance de tout salarié du débiteur.
L'ordonnance du juge-commissaire désigne les personnes physiques dont le courrier électronique est transféré au liquidateur et, le cas échéant, à l'administrateur.
Le liquidateur et l'administrateur détruisent sans délai les messages transférés dépourvus de caractère professionnel.
Dès l'achèvement de sa mission, l'administrateur transfère au liquidateur les messages encore en sa possession. A la clôture de la liquidation, le liquidateur détruit les messages transférés qu'il a pu conserver.
Chapitre II : De la réalisation de l'actif.
Section 1 : De la cession de l'entreprise.
Article R642-1
L'auteur de l'offre atteste qu'il ne tombe pas sous le coup des incapacités prévues au premier alinéa de l'article L. 642-3 et joint, lorsqu'il est tenu de les établir, ses comptes annuels relatifs aux trois derniers exercices et ses comptes prévisionnels. Sans préjudice du IV de l'article L. 642-2, les offres et documents qui y sont joints ne sont communiqués qu'au juge-commissaire et au procureur de la République.
Les modifications des offres effectuées dans les conditions du V de l'article L. 642-2 sont communiquées par le liquidateur ou l'administrateur s'il en a été désigné, aux personnes mentionnées au IV de l'article L. 642-2.
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A peine d'irrecevabilité, aucune modification ne peut être apportée à une offre moins de deux jours ouvrés avant la date fixée pour l'audience d'examen des offres par le tribunal.
En cas de renvoi de l'affaire à une audience ultérieure, le tribunal peut fixer un nouveau délai pour la présentation de nouvelles offres ou l'amélioration des offres préalablement déposées.
Article R642-2
Les seuils prévus par le deuxième alinéa de l'article L. 642-5 au-delà desquels les débats relatifs à l'arrêté du plan de cession doivent avoir lieu en présence du ministère public sont identiques aux seuils fixés par l'article R. 621-11.
Article R642-3
Les personnes appelées à l'audience au cours de laquelle il est débattu de l'arrêté du plan de cession sont convoquées selon les modalités prévues à l'article R. 626-17.
Lorsque le plan de cession prévoit des licenciements pour motif économique, le liquidateur, ou l'administrateur lorsqu'il en a été désigné, produit à l'audience les documents mentionnés à l'article R. 631-36. Le jugement arrêtant le plan indique le nombre de salariés dont le licenciement est autorisé ainsi que les activités et catégories professionnelles concernées.
Article R642-4
Le jugement arrêtant le plan de cession de l'entreprise est communiqué par le greffier aux personnes mentionnées à l'article R. 621-7 et fait l'objet des publicités prévues à l'article R. 621-8.
Il est signifié à la diligence du greffier dans les huit jours de la date du jugement aux personnes, autres que le procureur de la République, le cocontractant ou le bailleur, qui ont qualité pour interjeter appel.
Article R642-5
La demande présentée en application de l'article L. 642-6 est faite par déclaration au greffe du cessionnaire.
Le jugement modifiant le plan de cession est communiqué par le greffier aux personnes citées à l'article R. 621-7 et mentionné aux registres ou répertoires prévus à l'article R. 621-8.
Il est signifié à la diligence du greffier dans les huit jours de la date du jugement aux personnes, autres que le procureur de la République, qui ont qualité pour interjeter appel.
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Article R642-6
Les personnes appelées à l'audience au cours de laquelle il est débattu de la modification du plan de cession sont convoquées selon les modalités prévues à l'article R. 626-17.
Article R642-7
Lorsque le tribunal est appelé à se prononcer sur la cession des contrats mentionnés à l'article L. 642-7, ou à constater le transfert d'une sûreté mentionnée à son article L. 642-12, le ou les cocontractants ou le ou les titulaires de la sûreté sont convoqués à l'audience, quinze jours au moins avant la date d'audience, par lettre recommandée avec demande d'avis de réception, par le greffier sur les indications de l'administrateur, lorsqu'il en a été désigné, ou du liquidateur.
Article R642-8
Lorsqu'en application du quatrième alinéa de l'article L. 642-7 il y a désaccord entre les parties sur la valeur du bien objet du contrat de crédit-bail, le tribunal fixe cette valeur, au besoin après expertise, dans le plan de cession ou, à défaut, à la requête de l'une ou l'autre des parties.
Les sommes qui restent dues au sens de l'article L. 642-7 sont, à peine de nullité du paiement, versées par le cessionnaire au liquidateur, qui les remet sans délai au crédit-bailleur. Ces sommes viennent en déduction de la créance admise du crédit-bailleur lorsqu'elles sont relatives à des loyers impayés au jour du jugement d'ouverture.
Article R642-9
Dès l'accomplissement des actes de cession, le liquidateur ou l'administrateur, lorsqu'il en a été désigné, en fait rapport. Ce rapport est déposé au greffe du tribunal.
Article R642-10
Le prix de cession de l'entreprise est réparti par le liquidateur conformément aux dispositions de la première section du chapitre III du présent titre.
Lorsque la cession porte sur un fonds de commerce, le cessionnaire peut, après avoir payé le prix, saisir le juge-commissaire pour faire prononcer la radiation des inscriptions grevant le fonds ; les dispositions de l'article R. 642-38 sont applicables. Toutefois aucune justification de la purge n'est
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nécessaire.
Article R642-11
L'administrateur ou, à défaut, le liquidateur rend compte au juge-commissaire de l'exécution des actes permettant la mise en oeuvre du plan conformément à l'article L. 642-8.
Lorsqu'il a accompli sa mission, il dépose au greffe un compte rendu de fin de mission dans les conditions des articles R. 626-39 et R. 626-40.L'article R. 626-41 est applicable.
Article R642-12
La mesure d'inaliénabilité prévue à l'article L. 642-10 est, à la diligence de l'administrateur ou, à défaut, du liquidateur, mentionnée aux registres publics sur lesquels les biens déclarés inaliénables et les droits qui les grèvent sont inscrits ou, à défaut, aux registres mentionnés à l'article R. 621-8.
La publicité mentionne la durée de l'inaliénabilité.
Article R642-13
Lorsque, en application de l'article L. 642-10, la décision arrêtant ou modifiant le plan prononce l'inaliénabilité temporaire de biens mobiliers d'équipement du cessionnaire et est passée en force de chose jugée, l'administrateur judiciaire, ou, à défaut, le liquidateur, demande l'inscription de la mesure d'inaliénabilité sur le registre prévu à l'article R. 143-9.
Article R642-14
L'administrateur judiciaire, ou à défaut le liquidateur, présente une copie de la décision rendue au greffier du tribunal de commerce dans le ressort duquel le cessionnaire, personne morale, a son siège ou le cessionnaire, personne physique, a déclaré l'adresse de son entreprise ou de son activité.Y sont joints les bordereaux d'inscription, qui contiennent :
1° Les nom, prénoms et l'adresse de l'entreprise ou de l'activité du cessionnaire s'il s'agit d'une personne physique, la dénomination sociale ou commerciale et l'adresse du siège du débiteur s'il s'agit d'une personne morale, les mentions prévues aux 1° et 2° de l'article R. 123-237 ou le numéro d'immatriculation au répertoire des métiers ;
2° La date de la décision rendue ;
3° La désignation sommaire des biens d'équipement frappés d'inaliénabilité temporaire, le lieu où ils
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se trouvent entreposés, l'indication, le cas échéant, qu'ils peuvent être déplacés ;
4° La durée de la mesure d'inaliénabilité.
Article R642-15
Le greffier porte sur les bordereaux la mention de la date à laquelle l'inscription est effectuée et le numéro sous lequel elle est portée au registre mentionné à l'article R. 642-13.
Les bordereaux sont établis, conservés et l'un d'eux remis au cessionnaire dans les conditions prévues aux articles R. 525-2, R. 525-3-et R. 525-5.
Le greffier tient un fichier alphabétique des cessionnaires avec l'indication des numéros des inscriptions les concernant.
Article R642-16
Les bordereaux reçoivent un numéro d'entrée au moment où ils sont produits.
Ces pièces sont enregistrées sur le registre mentionné à l'article R. 642-13 ; il est délivré un récépissé extrait dudit registre mentionnant :
1° Le numéro d'entrée apposé sur les pièces comme il est dit au premier alinéa ;
2° La date du dépôt des pièces ;
3° Le nombre et la nature des pièces avec l'indication du but de ce dépôt ;
4° Le nom ou la dénomination du cessionnaire ;
5° La nature et la situation des biens inaliénables et, éventuellement, la mention qu'ils peuvent être déplacés.
Article R642-17
Lorsque le délai fixé pour la mesure d'inaliénabilité temporaire décidée par le jugement est expiré, le greffier mentionne d'office en marge de l'inscription, la radiation de celle-ci. Il délivre un certificat de radiation au cessionnaire qui le demande.
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Il est tenu de délivrer à tous ceux qui le requièrent l'état des inscriptions existantes.
Les frais de radiation sont inclus dans le coût de l'inscription.
Article R642-17-1
Le tribunal statue sur l'autorisation prévue à l'article L. 642-10 sur requête du cessionnaire.
La décision est notifiée au cessionnaire et communiquée au ministère public par le greffier. Elle est soumise aux recours prévus à l'encontre des décisions modifiant le plan de cession.
Article R642-18
Le liquidateur signale, dans un rapport adressé au juge-commissaire et au procureur de la République et déposé au greffe, l'inexécution du plan par le cessionnaire.
Pour l'application du deuxième alinéa de l'article L. 642-11, le cessionnaire est convoqué par le greffier par lettre recommandée avec demande d'avis de réception pour être entendu par le tribunal.
Les autres personnes appelées à l'audience sont convoquées selon les modalités prévues à l'article R. 626-17.
Le tribunal se prononce sur la résolution du plan de cession dans les conditions des deux premiers alinéas de l'article L. 642-5.
Le jugement prononçant la résolution du plan de cession est communiqué par le greffier aux personnes mentionnées à l'article R. 621-7 et fait l'objet des mesures de publicité prévues à l'article R. 621-8.
Il est signifié à la diligence du greffier dans les huit jours de la date de son prononcé aux personnes, autres que le procureur de la République, qui ont qualité pour interjeter appel.
Article R642-19
Le tribunal vérifie que les conditions requises par l'article L. 642-12 sont remplies et constate dans le jugement arrêtant le plan les sûretés dont la charge est transmise.
Un extrait du jugement est adressé par le greffier aux personnes mentionnées à l'article R. 642-7.
Article R642-20
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Dans le cas prévu au troisième alinéa de l'article L. 642-12, le cessionnaire informe préalablement le liquidateur de tout projet d'aliénation d'un bien cédé. Il est également tenu d'en informer le tribunal si l'aliénation n'était pas envisagée lors du dépôt de son offre dans les conditions du 7° du II de l'article L. 642-2.
Le liquidateur, informé par le cessionnaire dans les conditions du premier alinéa ou d'office, avertit sans délai le juge-commissaire et les créanciers bénéficiant d'un droit de suite s'il y en a.
Article R642-21
Le liquidateur signale, dans un rapport adressé au juge-commissaire et au procureur de la République et déposé au greffe, toute atteinte aux éléments pris en location-gérance ainsi que le défaut d'exécution par le locataire-gérant de ses obligations. Ce rapport fait état des observations du locataire-gérant et propose éventuellement les solutions qui seraient de nature à permettre l'exécution du plan.
Section 2 : De la cession des actifs du débiteur.
Sous-section 1 : Des ventes des immeubles.
Paragraphe 1 : Dispositions communes aux ventes par voie d'adjudication judiciaire et par voie d'adjudication amiable.
Article R642-22
Le juge-commissaire qui ordonne, en application de l'article L. 642-18, la vente des immeubles par voie d'adjudication judiciaire ou amiable détermine :
1° La mise à prix de chacun des biens à vendre et les conditions essentielles de la vente ;
2° Les modalités de la publicité compte tenu de la valeur, de la nature et de la situation des biens ;
3° Les modalités de visite des biens.
Lorsque la vente est poursuivie par un créancier, en application de l'article L. 643-2, la mise à prix est déterminée en accord avec le créancier poursuivant.
Le juge-commissaire peut préciser qu'à défaut d'enchères atteignant cette mise à prix la vente pourra
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se faire sur une mise à prix inférieure qu'il fixe.
Article R642-23
L'ordonnance est notifiée à la diligence du greffier par lettre recommandée avec demande d'avis de réception au débiteur et aux créanciers inscrits à domicile élu dont les noms sont indiqués dans l'ordonnance. Les contrôleurs en sont avisés par le greffier.
L'ordonnance produit les effets du commandement prévu à l'article 13 du décret n° 2006-936 du 27 juillet 2006 relatif aux procédures de saisie immobilière et de distribution du prix d'un immeuble ; elle est publiée à la diligence du liquidateur ou du créancier poursuivant au bureau des hypothèques de la situation des biens, dans les conditions prévues pour ledit commandement.
Le conservateur des hypothèques procède à la formalité de publicité de l'ordonnance même si des commandements ont été antérieurement publiés. Ces commandements cessent de produire effet à compter de la publication de l'ordonnance.
Article R642-24
Lorsque le juge-commissaire, en application du deuxième alinéa de l'article L. 642-18, autorise le liquidateur à reprendre la procédure de saisie immobilière suspendue par le jugement d'ouverture de la procédure de liquidation judiciaire, il fixe la mise à prix, les modalités de la publicité et les modalités de visite du bien. Il statue dans les conditions prévues à l'article R. 642-36-1.
L'ordonnance du juge-commissaire est, à la requête du liquidateur, mentionnée en marge de la copie du commandement publié à la conservation des hypothèques.
Le créancier qui avait engagé la procédure de saisie immobilière remet au liquidateur, contre récépissé, les pièces de la poursuite. Ses frais de procédure lui sont restitués dans l'ordre.
Article R642-25
Le poursuivant ou le notaire commis établit un cahier des conditions de vente.
Par exception à l'article 44 du décret n° 2006-936 du 27 juillet 2006 relatif aux procédures de saisie immobilière et de distribution du prix d'un immeuble, le cahier des conditions de vente contient :
1° L'énonciation de l'ordonnance qui a ordonné la vente avec la mention de sa publication ;
2° La désignation de l'immeuble à vendre, l'origine de propriété, les servitudes grevant l'immeuble, les baux consentis sur celui-ci et le procès-verbal de description ;
3° La mention de la mise à prix, des conditions de la vente et des modalités de paiement du prix selon les règles prévues au deuxième alinéa de l'article R. 643-3.
Article R642-26
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Le liquidateur ne peut, en qualité de mandataire, être déclaré adjudicataire des immeubles du débiteur.
Paragraphe 2 : Dispositions particulières à la vente par voie d'adjudication judiciaire.
Article R642-27
La vente par voie d'adjudication judiciaire est soumise aux dispositions du titre Ier du décret n° 2006-936 du 27 juillet 2006 relatif aux procédures de saisie immobilière et de distribution du prix d'un immeuble et dans la mesure où il n'y est pas dérogé par les dispositions du présent livre.
Article R642-28
L'ordonnance qui ordonne la vente par voie d'adjudication judiciaire rendue à la demande du liquidateur ou d'un créancier poursuivant comporte, outre les indications mentionnées à l'article R. 642-22, les énonciations exigées aux 1°, 5°, 10° de l'article 15 du décret n° 2006-936 du 27 juillet 2006 relatif aux procédures de saisie immobilière et de distribution du prix d'un immeuble.
Article R642-29
Le juge-commissaire peut autoriser le liquidateur ou le créancier à poursuivre simultanément la vente de plusieurs immeubles, même s'ils sont situés dans des ressorts de tribunaux de grande instance différents.
Il décide si la vente de ces biens sera poursuivie devant le juge de l'exécution du tribunal de grande instance dans le ressort duquel chaque immeuble se trouve ou devant celui dans le ressort duquel est situé l'adresse de l'entreprise ou de l'activité déclarée par le débiteur personne physique ou le siège du débiteur personne morale.
Article R642-29-1
Le cahier des conditions de vente est déposé par le poursuivant au greffe du juge de l'exécution du tribunal de grande instance compétent dans un délai de deux mois à compter de la publication de l'ordonnance du juge-commissaire.
Par exception aux sections 2 et 4 du chapitre III et aux chapitres IV et V du titre Ier du décret n° 2006-936 du 27 juillet 2006, au plus tard le cinquième jour ouvrable suivant le dépôt du cahier des conditions de vente, le poursuivant avise, par acte d'huissier de justice, les créanciers inscrits à
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domicile élu et, si la vente porte sur un bien de la communauté, le conjoint du débiteur, de la date de l'audience d'adjudication. La date est fixée, à sa diligence, dans un délai compris entre deux et quatre mois suivant celle de l'avis.
Outre les mentions prescrites pour les actes d'huissier de justice, l'avis contient, à peine de nullité :
1° L'indication des lieu, jour et heure de l'audience d'adjudication du juge de l'exécution ;
2° La sommation de prendre connaissance du cahier des conditions de vente et l'indication du greffe du juge de l'exécution ainsi que du cabinet de l'avocat du poursuivant où celui-ci peut être consulté ;
3° L'indication, en caractères très apparents, qu'à peine d'irrecevabilité, seules les contestations relatives à un acte de procédure postérieur à l'ordonnance du juge-commissaire peuvent être soulevées, dans les quinze jours de l'acte ou, le cas échéant, de sa notification, par conclusions d'avocat déposées au greffe du juge de l'exécution.
Aux fins du 3°, l'avis vaut notification du cahier des conditions de vente.
En cas de contestation formée en application du 3°, les parties sont convoquées à une audience par le greffe du juge de l'exécution, conformément au troisième alinéa de l'article 7 du décret n° 2006-936 du 27 juillet 2006.
Lorsque les délais mentionnés au premier et au deuxième alinéas ont été dépassés, le juge de l'exécution déclare l'ordonnance du juge-commissaire non avenue, à moins qu'il ne soit justifié d'un motif légitime.
Article R642-29-2
Seules sont applicables à la cession des actifs du débiteur par voie d'adjudication judiciaire celles des dispositions du chapitre VI du titre Ier du décret n° 2006-936 du 27 juillet 2006 qui sont mentionnées ci-après.
A l'audience d'adjudication, il est procédé comme il est dit à la section 2 du chapitre VI du même décret.
L'article 86 du même décret est applicable au paiement des frais taxés.
Outre les mentions prescrites pour tout jugement, le jugement d'adjudication vise l'ordonnance du juge-commissaire ayant ordonné la vente, les jugements tranchant les contestations et le cahier des conditions de vente. Il désigne le poursuivant. Il mentionne les éléments énumérés aux troisième et quatrième phrases de l'article 87 du même décret.
Le jugement d'adjudication est notifié par le poursuivant au débiteur, aux créanciers inscrits, à l'adjudicataire, ainsi qu'à toute personne ayant élevé une contestation tranchée par la décision.
Les modalités de recours à l'encontre de ce jugement sont fixées par les dispositions du deuxième alinéa de l'article 88 du même décret.
Les dispositions des articles 89 à 91 du même décret sont applicables au titre de vente.
La vente par adjudication judiciaire produit les effets prévus par l'article 92 du même décret.
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La surenchère est régie par les articles 94 à 99 du même décret.
La réitération des enchères est régie par les articles 100 à 106 du même décret..
Paragraphe 3 : Dispositions particulières à la vente par voie d'adjudication amiable.
Article R642-30
L'ordonnance qui ordonne la vente par voie d'adjudication amiable comporte, outre les indications mentionnées à l'article R. 642-22, les énonciations exigées au 5° de l'article 15 du décret n° 2006-936 du 27 juillet 2006 relatif aux procédures de saisie immobilière et de distribution du prix d'un immeuble. Elle désigne le notaire qui procédera à l'adjudication.
Article R642-31
Le notaire informe par lettre recommandée avec demande d'avis de réception les créanciers inscrits portés sur l'état délivré après publication de l'ordonnance d'avoir à prendre communication du cahier des conditions de vente déposé en son étude deux mois au moins avant la date fixée pour l'adjudication et d'y faire inscrire leurs dires et observations un mois au moins avant cette date. Par la même lettre, le notaire convoque les créanciers à la vente.
Si un créancier formule un dire, il saisit le juge de l'exécution du tribunal de grande instance dans les huit jours à peine de déchéance, par assignation du liquidateur à comparaître à la première audience éventuelle utile. Il en informe immédiatement le notaire qui invite les autres personnes sommées à contester le dire. Le jugement est communiqué par le liquidateur au notaire qui modifie s'il y a lieu le cahier des conditions de vente.
Le liquidateur, le débiteur et les créanciers inscrits sont convoqués à la vente par le notaire au moins un mois à l'avance.
Article R642-32
Avant l'ouverture des enchères le notaire se fait remettre par les enchérisseurs une caution bancaire irrévocable ou un chèque de banque conformément à l'article 74 du décret n° 2006-936 du 27 juillet 2006 relatif aux procédures de saisie immobilière et de distribution du prix d'un immeuble. Lorsque l'adjudicataire est défaillant, la somme versée ou la caution apportée est acquise pour être distribuée avec l'actif réalisé.
Le notaire rappelle que les enchères partiront du montant de la mise à prix fixé conformément à l'article R. 642-22.
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Les enchères peuvent être faites sans ministère d'avocat. Elles sont pures et simples. Si aucune enchère n'atteint le montant de la mise à prix, le notaire constate l'offre la plus élevée et peut adjuger le bien à titre provisoire pour le montant de cette offre. Le juge-commissaire qui a fixé la mise à prix, saisi à la requête du notaire ou de tout intéressé, peut soit déclarer l'adjudication définitive et la vente réalisée, soit ordonner qu'une nouvelle vente aura lieu suivant l'une des formes prescrites par l'article L. 642-18. Si la nouvelle vente est une vente aux enchères, il fixe le délai de la nouvelle vente sans que ce délai puisse être inférieur à quinze jours, la mise à prix ainsi que les modalités de publicité.
Le titre de vente consiste dans l'expédition du cahier des conditions de vente revêtue de la formule exécutoire, à la suite de laquelle est transcrit un procès-verbal d'adjudication dressé par le notaire.
Article R642-33
Dans les quinze jours qui suivent l'adjudication, toute personne peut faire surenchère du dixième par déclaration au greffe du juge de l'exécution du tribunal de grande instance dans le ressort duquel réside le notaire qui a procédé à la vente.
Le surenchérisseur dénonce cette déclaration par acte d'huissier de justice à la personne ou au domicile de l'adjudicataire dans le délai de l'article 96 du décret n° 2006-936 du 27 juillet 2006 relatif aux procédures de saisie immobilière et de distribution du prix d'un immeuble et informe le notaire de cette déclaration. Le tribunal, par le jugement qui valide la surenchère, renvoie la nouvelle adjudication devant le même notaire qui procède selon le cahier des conditions de vente précédemment dressé.
Lorsqu'une seconde adjudication a lieu après surenchère, aucune autre surenchère des mêmes biens ne peut avoir lieu.
Article R642-34
S'il y a lieu à réitération des enchères, la procédure est poursuivie devant le juge de l'exécution du tribunal de grande instance dans le ressort duquel réside le notaire qui a procédé à la vente. Une copie authentique du procès-verbal d'adjudication est déposée au greffe du juge de l'exécution du tribunal de grande instance.
Article R642-35
La vente par voie d'adjudication amiable est soumise aux dispositions des articles 72, 74, troisième alinéa, 75, 77, 78, 79, 81, deuxième et troisième alinéas, 90, troisième et quatrième alinéas et 100 à 106 du décret n° 2006-936 du 27 juillet 2006 relatif aux procédures de saisie immobilière et de distribution du prix d'un immeuble.
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Paragraphe 4 : Dispositions particulières à la vente de gré à gré.
Article R642-36
L'autorisation de vente de gré à gré d'un ou plusieurs immeubles, délivrée en application de l'article L. 642-18, détermine le prix de chaque immeuble et les conditions essentielles de la vente.
L'ordonnance est notifiée conformément au premier alinéa de l'article R. 642-23.
Le liquidateur passe les actes nécessaires à la réalisation de la vente. Il ne peut, en qualité de mandataire, se porter acquéreur des immeubles du débiteur.
Paragraphe 5 : Dispositions communes à toutes les ventes.
Article R642-36-1
Le juge-commissaire statue sur la vente après avoir recueilli les observations des contrôleurs et entendu ou dûment appelé le débiteur et son conjoint lorsque celui-ci se trouve dans l'une des situations prévues à l'article R. 641-30, ainsi que le liquidateur.
Article R642-37
La décision qui, soit dans le jugement prononçant la liquidation judiciaire, soit ultérieurement, accorde les délais mentionnés à l'avant-dernier alinéa de l'article L. 642-18, fixe l'indemnité d'occupation due par le débiteur.
Article R 642-37-1
Le recours contre les ordonnances du juge-commissaire rendues en application de l'article L. 642-18 est formé devant la cour d'appel.
Sous-section 2 : De la vente des autres biens.
Article R642-37-2
Le juge-commissaire statue sur la vente après avoir recueilli les observations des contrôleurs et
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entendu ou dûment appelé le débiteur et son conjoint, lorsque celui-ci se trouve dans l'une des situations prévues à l'article R. 641-30, ainsi que le liquidateur.
Article R642-37-3
Les ordonnances rendues en application de l'article L. 642-19 sont, à la diligence du greffier, notifiées au débiteur et communiquées par lettre simple aux contrôleurs.
Les recours contre ces décisions sont formés devant la cour d'appel.
Article R642-38
En cas de cession d'un fonds de commerce, le cessionnaire peut saisir le juge-commissaire pour faire prononcer la radiation des inscriptions. Il joint à sa demande un état des inscriptions, la justification de l'accomplissement des formalités de purge ou de l'accord des créanciers inscrits pour l'en dispenser, et la justification du paiement des frais préalables de vente.
Le greffier du tribunal avise par lettre recommandée avec demande d'avis de réception les créanciers qui n'ont pas donné mainlevée de leurs inscriptions qu'ils disposent d'un délai de trente jours à compter de l'envoi de la lettre pour contester, par déclaration au greffe ou par lettre recommandée avec demande d'avis de réception, la demande de radiation pour tout motif tiré du non-paiement du prix.
Section 3 : Dispositions communes.
Article R642-40
En application de l'article L. 642-22, la publicité des cessions d'entreprises et des réalisations d'actifs est faite par les mandataires de justice au moyen d'un service informatique accessible par l'internet.
Toute cession d'entreprise fait l'objet d'une publicité par voie de presse. Son étendue est définie par le juge-commissaire. Le juge-commissaire détermine s'il y a lieu d'effectuer une publicité par voie de presse pour les actifs de faible valeur.
Le liquidateur, ou l'administrateur lorsqu'il en a été désigné, communique au greffe les caractéristiques essentielles de l'entreprise ou de la ou des branches d'activité susceptibles d'être cédées. Tout intéressé peut prendre connaissance de ces informations au greffe.
Article R642-41
Lorsqu'en application de l'article L. 642-24, il y a lieu, pour le juge-commissaire, d'autoriser le
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liquidateur à compromettre ou à transiger, le greffier convoque le débiteur à l'audience quinze jours avant celle-ci en joignant à cette convocation la copie de la requête du liquidateur.
Si le compromis ou la transaction doit être soumis à l'homologation du tribunal, le débiteur est convoqué dans les mêmes conditions.
Chapitre III : De l'apurement du passif.
Section 1 : Du règlement des créanciers.
Article R643-1
Lorsque la vente est poursuivie par un créancier en application de l'article L. 643-2, la mise à prix est fixée par le juge-commissaire en accord avec le créancier poursuivant.
Article R643-2
Le juge-commissaire, saisi de la demande d'un créancier sur le fondement de l'article L. 643-3, statue après avis du liquidateur au vu des documents justificatifs de l'admission définitive de la créance dont il est demandé un paiement provisionnel et, le cas échéant, de la garantie prévue au second alinéa de l'article susmentionné.
La provision est allouée à hauteur d'un montant déterminé en fonction de l'existence, du montant et du rang des autres créances, dues ou susceptibles d'être ultérieurement dues.
Sur ordonnance du juge-commissaire, les fonds indûment versés sont restitués sur première demande du liquidateur.
Article R643-3
L'adjudicataire fait publier au bureau des hypothèques l'acte ou le jugement d'adjudication dans les deux mois de sa date et en cas d'appel dans les deux mois de l'arrêt confirmatif, sous peine de réitération des enchères à la diligence du liquidateur.
Dans les trois mois de l'adjudication, l'adjudicataire verse au compte de dépôt ouvert par le liquidateur à la Caisse des dépôts et consignations la totalité du prix de l'adjudication y compris les intérêts au taux légal à compter du jour où la vente est devenue définitive jusqu'au jour du paiement. Passé ce délai, le liquidateur lui enjoint par lettre recommandée avec demande d'avis de réception de faire le versement sous peine de réitération des enchères.
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En cas de vente de gré à gré, le notaire chargé de la vente remet le prix, dès sa perception, au liquidateur.
Le prix de vente ne peut faire l'objet d'aucun prélèvement par le liquidateur jusqu'à ce que soit justifié par l'acquéreur qu'il a conduit à son terme la procédure de purge ou qu'il a obtenu des créanciers inscrits la dispense d'y procéder.
En cas de surenchère, le prix est restitué sans délai à l'acquéreur par le liquidateur, par l'intermédiaire du notaire.
Article R643-4
Dès la publication de la vente, le liquidateur requiert du conservateur des hypothèques l'état des inscriptions, conformément à l'article 2449 du code civil, en vue de régler l'ordre entre les créanciers et procéder à la distribution du prix.
En cas de vente de gré à gré, le liquidateur soit d'office, soit requis par l'acquéreur ou par tout intéressé procède à l'ouverture de l'ordre, après accomplissement, par l'acquéreur, des formalités de purge prescrites par les articles 2476 et suivants du code civil et versement du prix à la Caisse des dépôts et consignations.
Article R643-5
Les créanciers inscrits du chef d'un précédent propriétaire et titulaires d'un droit de suite sont avertis par le liquidateur par lettre recommandée avec demande d'avis de réception qu'ils ont l'obligation de produire leur créance à la procédure d'ordre dans le délai de deux mois à compter de l'avertissement. Cet avis reproduit les deuxième et troisième alinéas du présent article.
La production mentionne la sûreté inscrite sur le bien. Un décompte des sommes dues en principal, intérêts et accessoires et les documents justificatifs sont joints à la production.
A défaut de production dans le délai mentionné au premier alinéa, le créancier est déchu du droit de participer à la distribution.
Article R643-6
Après le versement du prix de vente en cas d'adjudication ou l'accomplissement, par l'acquéreur, des formalités de purge en cas de vente de gré à gré, le liquidateur dresse l'état de collocation au vu des inscriptions, des créances admises et de la liste des créances mentionnées à l'article L. 641-13. Il peut, s'il l'estime utile, convoquer les créanciers inscrits, l'adjudicataire ou l'acquéreur. L'état est déposé par ses soins au greffe du tribunal devant lequel s'est déroulée la procédure. Toute personne
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peut prendre connaissance de cet état.
Le greffier avertit les créanciers et l'adjudicataire ou l'acquéreur du dépôt de l'état de collocation par une insertion dans un ou plusieurs journaux d'annonces légales et par une insertion au Bulletin officiel des annonces civiles et commerciales contenant l'indication du journal d'annonces légales dans lequel a été faite la première insertion et la mention du délai de recours prévu à l'article R. 643-11.
Le greffier adresse en outre, sauf dispense du juge-commissaire, à chaque créancier colloqué et à chaque créancier inscrit sur l'immeuble à domicile élu, une copie de l'état de collocation et indique le délai et les modalités du recours prévu à l'article R. 643-11.
L'état de collocation est adressé aux institutions mentionnées à l'article L. 143-11-4 du code du travail lorsqu'elles en auront fait la demande préalable.
Article R643-7
S'il ne s'élève aucune contestation, le liquidateur est tenu dans les quinze jours qui suivent l'expiration du délai prévu au premier alinéa de l'article R. 643-11 de procéder à la clôture de l'ordre. Il dépose le procès-verbal de clôture de l'ordre au greffe du tribunal devant lequel s'est déroulée la procédure de liquidation judiciaire.
A compter du dépôt du procès-verbal de clôture de l'ordre, la collocation des créanciers est définitivement arrêtée en capital et intérêts. Toutefois, les intérêts de la somme ainsi liquidée continuent de courir au bénéfice des créanciers au taux servi par la Caisse des dépôts et consignations.
Article R643-8
Lorsque le prix de vente a été payé selon les modalités prévues à l'article R. 643-3 et que des créanciers n'ont pas donné mainlevée de leurs inscriptions, le liquidateur fait prononcer la radiation des inscriptions. A cette fin, il saisit le juge de l'exécution du tribunal de grande instance devant lequel s'est déroulée la procédure de liquidation judiciaire ou dans le ressort duquel cette procédure s'est déroulée. Il joint à sa demande l'état des inscriptions, l'état de collocation et la justification du paiement des frais préalables de vente mentionnés à l'article 2209 du code civil. Il transmet le procès-verbal de clôture de l'ordre lorsque celui-ci est établi.
Après l'accomplissement des formalités de purge et le versement du prix de vente, l'acquéreur peut également saisir le juge de l'exécution du tribunal prévu à l'alinéa précédent pour faire prononcer la radiation des inscriptions. Il joint à sa demande un état des inscriptions, la justification de l'accomplissement des formalités de purge ou de l'obtention de l'accord des créanciers inscrits pour en dispenser, et la justification du paiement des frais préalables de vente mentionnés ci-dessus.
Le greffier de cette juridiction avise les créanciers qui n'ont pas donné mainlevée de leurs
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inscriptions, à domicile élu, par lettre recommandée avec demande d'avis de réception qu'ils disposent d'un délai de trente jours à compter de l'envoi de la lettre recommandée pour faire opposition au paiement du prix par déclaration au greffe ou par lettre recommandée avec demande d'avis de réception.
Le juge de l'exécution statue sur les oppositions et ordonne la radiation des inscriptions.
Article R643-9
Le liquidateur remet au conservateur des hypothèques une expédition du procès-verbal de clôture de l'ordre, de l'ordonnance du juge des ordres prononçant la radiation des inscriptions ou l'acte par lequel les créanciers ont donné mainlevée de leurs inscriptions.
Le conservateur procède à la radiation des inscriptions mais reste tenu de procéder à l'inscription définitive prévue aux articles 260 et suivants du décret n° 92-755 du 31 juillet 1992 instituant de nouvelles règles relatives aux procédures civiles d'exécution pour l'application de la loi n° 91-650 du 9 juillet 1991 portant réforme des procédures civiles d'exécution.
Article R643-10
Le liquidateur fixe les frais de radiation et de poursuite de l'ordre qui sont colloqués suivant les règles prévues à l'article L. 641-13. Il liquide en outre les frais de chaque créancier colloqué en rang utile, détermine les sommes qui leur sont dues et en effectue le paiement.
Article R643-11
Les contestations sont formées dans le délai de trente jours à compter de l'insertion au Bulletin officiel des annonces civiles et commerciales avisant du dépôt de l'état de collocation. Elles sont faites par déclaration au greffe du juge de l'exécution du tribunal de grande instance devant lequel s'est déroulée la procédure de liquidation judiciaire ou dans le ressort duquel la procédure s'est déroulée.
La contestation est, à peine d'irrecevabilité, dénoncée, dans les dix jours de son dépôt au greffe, aux créanciers en cause et au liquidateur par acte d'huissier de justice. Cet acte indique que les créanciers et le liquidateur doivent constituer avocat dans le délai de quinze jours à compter de la dénonciation.
Il est statué sur les contestations selon la procédure applicable devant le juge de l'exécution. Les articles 5, 7 premier alinéa et 8 du décret n° 2006-936 du 27 juillet 2006 relatif aux procédures de saisie immobilière et de distribution du prix d'un immeuble sont applicables.
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Article R643-12
En cas de contestation, le liquidateur peut néanmoins régler l'ordre et délivrer les titres de paiement pour les créances antérieures à celles qui sont contestées. Il peut même régler l'ordre pour les créances postérieures, en réservant une somme suffisante pour les créances contestées.
Article R643-13
Dans les huit jours qui suivent l'expiration du délai d'appel et en cas d'appel dans les huit jours de la signification de l'arrêt, le liquidateur règle définitivement l'ordre des créances contestées et des créances postérieures conformément aux articles R. 643-7 à R. 643-10.
Article R643-14
En cas d'adjudication sur réitération des enchères intervenant dans le cours de l'ordre et même après le règlement définitif, le liquidateur modifie l'état de collocation, le montant des sommes dues aux créanciers inscrits au procès-verbal de l'ordre suivant les résultats de l'adjudication et effectue les paiements correspondants.
Article R643-15
Pour l'application de la présente section, en cas de retour au liquidateur d'une lettre de notification qui n'a pu être remise à son destinataire, le liquidateur procède par voie de signification.
Section 2 : De la clôture des opérations de liquidation judiciaire.
Article R643-16
L'insuffisance d'actif est caractérisée lorsque le produit de la réalisation des actifs du débiteur et des actions et procédures engagées dans l'intérêt de l'entreprise ou des créanciers ne permet plus de désintéresser, même partiellement, les créanciers.
Article R643-17
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Le greffier, au plus tard deux mois avant l'expiration du délai fixé par le tribunal, en application du premier alinéa de l'article L. 643-9, pour l'examen de la clôture de la procédure, fait convoquer à cette fin le débiteur par acte d'huissier de justice. Il avise le liquidateur et les contrôleurs de la date de l'audience.
Lorsqu'il est fait application du troisième alinéa du même article, il est procédé aux convocations et avis mentionnés à l'alinéa précédent. Toutefois, le débiteur ou le créancier, lorsqu'il est demandeur, est convoqué à la diligence du greffier par lettre recommandée avec demande d'avis de réception.
Article R643-18
Le tribunal statue sur la clôture de la procédure sur le rapport du liquidateur.
Le jugement prononçant la clôture de la procédure pour extinction du passif ou pour insuffisance d'actif fait l'objet des publicités prévues à l'article R. 621-8. Le jugement est notifié par le greffier au débiteur.
Lorsque le tribunal autorise, par ce jugement, la reprise des actions individuelles de tout créancier à l'encontre du débiteur, il en est fait mention dans ces publicités. Dans ce cas, le jugement est signifié au débiteur à la diligence du greffier dans les huit jours de son prononcé.
Lorsque cette autorisation est postérieure au jugement prononçant la clôture de la procédure, la décision du tribunal fait l'objet des mêmes publicités et est signifiée au débiteur dans les mêmes conditions.
Article R643-19
Dans les deux mois qui suivent l'achèvement de sa mission, le liquidateur dépose un compte-rendu de fin de mission dans les conditions prévues par les articles R. 626-39 et R. 626-40. L'article R. 626-41 est applicable.
Article R643-20
Le créancier dont la créance a été admise et qui recouvre son droit de poursuite individuelle conformément à l'article L. 643-11 peut obtenir, par ordonnance du président du tribunal rendue sur requête, le titre prévu au V du même article. La caution ou le co-obligé mentionné au II du même article peut, dans les mêmes conditions, obtenir un titre exécutoire sur justification du paiement effectué. La procédure de l'injonction de payer prévue aux articles 1405 et suivants du code de procédure civile n'est pas applicable.
Lorsque la créance a été admise lors de la procédure, le président du tribunal qui a ouvert celle-ci est compétent. Lorsque la créance n'a pas été vérifiée, la compétence du tribunal est déterminée
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selon les règles du droit commun.
L'ordonnance vise l'admission définitive du créancier et le jugement de clôture pour insuffisance d'actif. Elle contient l'injonction de payer et est revêtue par le greffier de la formule exécutoire.
Dans le cas prévu aux I, II et III de l'article L. 643-11, l'ordonnance est rendue, le débiteur entendu ou appelé.
Article R643-21
Si le débiteur fait l'objet d'une mesure d'interdiction d'émettre des chèques prise en application de l'article L. 131-73 du code monétaire et financier, le liquidateur se fait remettre par la Banque de France un relevé des incidents de paiement de chèques enregistrés au nom de l'intéressé et le dépose au greffe. Le greffier conserve ce relevé pendant cinq ans à compter du jugement d'ouverture de la procédure.
Article R643-22
Pour l'application de l'article L. 643-12, le débiteur justifie de la suspension de l'interdiction d'émettre des chèques auprès de l'établissement de crédit qui est à l'origine de cette mesure par la remise d'une copie du jugement de clôture, à laquelle il joint un relevé des incidents de paiement.
L'établissement de crédit qui est à l'origine de l'interdiction informe la Banque de France de la suspension de cette interdiction aux fins de régularisation.
Article R643-23
Si la mesure d'interdiction d'émettre des chèques ayant fait l'objet d'une suspension en application de l'article L. 643-12 reprend ses effets à la suite du recouvrement par les créanciers de leur droit de poursuite individuelle, l'ordonnance revêtue de la formule exécutoire visée au V de l'article L. 643-11 est notifiée par le greffier, aux frais du créancier poursuivant, à la Banque de France, accompagnée du relevé des incidents de paiement de chèques mentionné à l'article R. 643-22.
Article R643-24
Le tribunal statue sur la reprise de la procédure de liquidation judiciaire prévue à l'article L. 643-13 après avoir entendu ou dûment appelé le débiteur. La décision de reprise de la procédure fait l'objet des avis et publicités prévus aux articles R. 621-7 et R. 621-8. Elle est signifiée au débiteur et, le cas échéant, notifiée au créancier demandeur.
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Chapitre IV : De la liquidation judiciaire simplifiée.
Article R644-1
Lorsque la décision sur l'application à la procédure des règles de la liquidation judiciaire simplifiée, prévue au chapitre IV du titre IV du livre VI, relève de la compétence du président du tribunal, celui-ci statue d'office au vu du rapport du liquidateur.
Cette décision est une mesure d'administration judiciaire non susceptible de recours. Elle est communiquée au débiteur et au liquidateur et est mentionnée aux registres ou répertoires prévus à l'article R. 621-8.
Article R644-2
L'état des créances complété par le projet de répartition établi par le liquidateur à l'issue de la procédure de vérification et d'admission des créances et de la réalisation des biens est déposé au greffe où tout intéressé peut en prendre connaissance. Un avis de ce dépôt est publié au Bulletin officiel des annonces civiles et commerciales ainsi que dans un journal d'annonces légales.
Le délai dans lequel il peut être formé réclamation devant le juge-commissaire, en application de l'article L. 644-4, est d'un mois à compter de la publication de cet avis.
Article R644-3
La décision par laquelle le juge-commissaire statue sur les contestations formées contre l'état des créances complété par le projet de répartition fait l'objet des mesures de publicité prévues à l'article R. 644-2. Elle est notifiée par le greffier aux créanciers intéressés. Ceux-ci peuvent former un recours dans les délais et selon les formes prévus à l'article R. 621-21.
Article R644-4
Lorsque le tribunal envisage, en application de l'article L. 644-6, de ne plus faire application des règles de la liquidation judiciaire simplifiée, il fait convoquer le débiteur à l'audience par le greffier par lettre recommandée avec demande d'avis de réception.
Il statue au vu d'un rapport du liquidateur.
Cette décision est une mesure d'administration judiciaire non susceptible de recours. Elle est communiquée au débiteur et au liquidateur et est mentionné aux registres ou répertoires prévus à l'article R. 621-8.
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Partie réglementaire
LIVRE VI : Des difficultés des entreprises.
TITRE V : Des responsabilités et des sanctions.
Chapitre Ier : De la responsabilité pour insuffisance d'actif.
Article R651-1
Le tribunal compétent pour statuer dans le cas prévu à l'article L. 651-2 est celui qui a ouvert ou prononcé la liquidation judiciaire de la personne morale.
Article R651-2
Pour l'application de l'article L. 651-2, le tribunal est saisi, selon le cas, par voie d'assignation ou dans les formes et selon la procédure prévues à l'article R. 631-4.
Article R651-3
Les jugements rendus en application de l'article L. 651-2 sont communiqués par le greffier au procureur de la République.
Article R651-4
Pour l'application de l'article L. 651-3, la mise en demeure faite au mandataire de justice d'engager l'action en responsabilité est délivrée par au moins deux créanciers contrôleurs. Leur action n'est recevable que si cette mise en demeure, adressée au mandataire de justice par lettre recommandée avec demande d'avis de réception, est restée infructueuse pendant deux mois à compter de la réception de la mise en demeure.
Article R651-5
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Pour l'application de l'article L. 651-4, le juge désigné par le président du tribunal peut se faire assister de toute personne de son choix dont les constatations sont consignées dans son rapport. Ce rapport est déposé au greffe et communiqué par le greffier au ministère public. Le ou les dirigeants mis en cause sont avertis par le greffier, au moins un mois avant la date de l'audience, qu'ils peuvent en prendre connaissance.
Le tribunal statue sur le rapport du juge désigné après avoir entendu ou dûment appelé les contrôleurs.
Article R651-6
Lorsqu'un dirigeant d'une personne morale est déjà soumis à une procédure de sauvegarde, de redressement ou de liquidation judiciaires, le montant du passif mis à sa charge est déterminé après mise en cause du mandataire judiciaire ou du liquidateur désigné dans la procédure à laquelle il est soumis. La décision de condamnation est portée par le greffier sur l'état des créances de la procédure à laquelle le dirigeant est soumis ou transmise au greffier compétent pour y procéder.
Chapitre III : De la faillite personnelle et des autres mesures d'interdiction.
Article R653-1
Lorsque les mandataires de justice mentionnés à l'article L. 653-7 ont connaissance de faits prévus aux articles L. 653-3 à L. 653-6 et L. 653-8, ils en informent le procureur de la République et le juge-commissaire.
Pour l'application de l'article L. 653-8, la date retenue pour la cessation des paiements ne peut être différente de celle retenue en application de l'article L. 631-8.
Article R653-2
Pour l'application de l'article L. 653-7, le tribunal est saisi, selon le cas, par voie d'assignation ou dans les formes et selon la procédure prévues à l'article R. 631-4. La mise en demeure faite au mandataire de justice d'engager l'action en sanction est délivrée par au moins deux créanciers contrôleurs. Leur action n'est recevable que si cette mise en demeure, adressée au mandataire de justice par lettre recommandée avec demande d'avis de réception, est restée infructueuse pendant deux mois à compter de la réception de la mise en demeure.
Article R653-3
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Indépendamment des mentions portées au casier judiciaire en application du 5e de l'article 768 du code de procédure pénale, les jugements prononçant la faillite personnelle ou l'interdiction prévue à l'article L. 653-8 font l'objet des publicités prévues à l'article R. 621-8 et sont adressés par le greffier aux personnes mentionnées à l'article R. 621-7.
Ces décisions sont signifiées dans les quinze jours de leur date à la diligence, selon le cas, du greffier du tribunal ou de la cour d'appel aux personnes sanctionnées.
Article R653-4
Toute demande en relevé des déchéances, interdictions et incapacités est adressée par requête à la juridiction qui les a prononcées. Sont joints à la requête tous documents justifiant de la contribution au paiement du passif ou, lorsque l'intéressé a fait l'objet de l'interdiction prévue à l'article L. 653-8, des garanties démontrant sa capacité à diriger ou contrôler l'une ou plusieurs des entreprises ou personnes visées par cet article. Ces garanties peuvent consister en une formation professionnelle.
La juridiction statue après avoir entendu le demandeur et recueilli l'avis du ministère public.
Chapitre IV : De la banqueroute et des autres infractions.
Article R654-1
Pour l'application de l'article L. 654-17, la mise en demeure faite au mandataire de justice de se constituer partie civile est délivrée par au moins deux créanciers contrôleurs. Leur action n'est recevable que si cette mise en demeure, adressée au mandataire de justice par lettre recommandée avec demande d'avis de réception, est restée infructueuse pendant deux mois à compter de la réception de la mise en demeure.
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Partie réglementaire
LIVRE VI : Des difficultés des entreprises.
TITRE VI : Des dispositions générales de procédure.
Chapitre Ier : Des voies de recours.
Article R661-1
Les jugements et ordonnances rendus en matière de mandat ad hoc, de conciliation, de sauvegarde, de redressement et de liquidation judiciaires sont exécutoires de plein droit à titre provisoire.
Toutefois, ne sont pas exécutoires de plein droit à titre provisoire les jugements et ordonnances rendus en application des articles L. 622-8, L. 626-22, du premier alinéa de l'article L. 642-20-1, de l'article L. 651-2, des articles L. 663-1 à L. 663-4 ainsi que les jugements qui prononcent la faillite personnelle ou l'interdiction prévue à l'article L. 653-8.
Par dérogation aux dispositions de l'article 524 du code de procédure civile , le premier président de la cour d'appel, statuant en référé, ne peut arrêter l'exécution provisoire que des décisions mentionnées aux 1°, 2°, 3°, 5°, 6° et 8° du I de l'article L. 661-1, et lorsque les moyens invoqués à l'appui de l'appel paraissent sérieux. Dans les mêmes conditions, le premier président de la cour d'appel peut arrêter l'exécution provisoire des décisions qui ne sont pas exécutoires de plein droit. Dès le prononcé de la décision du premier président arrêtant l'exécution provisoire, le greffier de la cour d'appel en informe le greffier du tribunal.
En cas d'appel du ministère public d'un jugement mentionné aux articles L. 661-1, à l'exception du jugement statuant sur l'ouverture de la procédure de sauvegarde ou de redressement judiciaire, L. 661-6 et L. 661-11, l'exécution provisoire est arrêtée de plein droit à compter du jour de cet appel. Le premier président de la cour d'appel peut, sur requête du procureur général, prendre toute mesure conservatoire pour la durée de l'instance d'appel.
Article R661-2
Sauf dispositions contraires, l'opposition et la tierce opposition sont formées contre les décisions rendues en matière de mandat ad hoc, de conciliation, de sauvegarde, de redressement et de liquidation judiciaires, de responsabilité pour insuffisance d'actif, de faillite personnelle ou d'interdiction prévue à l'article L. 653-8, par déclaration au greffe dans le délai de dix jours à compter du prononcé de la décision.
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Toutefois, pour les décisions soumises aux formalités d'insertion dans un journal d'annonces légales et au Bulletin officiel des annonces civiles et commerciales, le délai ne court que du jour de la publication au Bulletin officiel des annonces civiles et commerciales. Pour les décisions soumises à la formalité d'insertion dans un journal d'annonces légales, le délai ne court que du jour de la publication de l'insertion.
Article R661-3
Sauf dispositions contraires, le délai d'appel des parties est de dix jours à compter de la notification qui leur est faite des décisions rendues en matière de mandat ad hoc, de conciliation, de sauvegarde, de redressement et de liquidation judiciaires, de responsabilité pour insuffisance d'actif, de faillite personnelle ou d'interdiction prévue à l'article L. 653-8.
Toutefois, le délai dans lequel le débiteur peut interjeter appel du jugement arrêtant ou rejetant le plan de cession de l'entreprise est de dix jours à compter du prononcé du jugement.
Dans les cas prévus au troisième alinéa de l'article L. 642-1 et à l'article L. 642-7, le greffier notifie la décision, dans les quarante-huit heures de son prononcé, au cocontractant, au cessionnaire ou au bailleur. Le délai d'appel est de dix jours à compter de la notification.
Le délai d'appel du procureur de la République et du procureur général est de dix jours. Ces délais sont comptés à partir de la réception par le procureur de la République de l'avis qui lui est donné de la décision dans les formes prévues, selon le cas, aux articles R. 611-25, R. 611-41 ou R. 621-7.
Article R661-4
L'appel du procureur de la République et du procureur général est fait par une déclaration d'appel remise ou adressée au greffe de la cour d'appel.
Lorsque cette déclaration est faite par voie postale, la date de l'acte d'appel est celle de l'expédition.
Lorsque l'appel du procureur de la République ou du procureur général est interjeté à l'encontre d'un jugement mentionné aux articles L. 661-6, L. 661-9 ou rendu en application des chapitres Ier et III du titre V du livre VI de la partie législative du présent code, l'appelant en informe immédiatement, par tout moyen, le greffier du tribunal et les mandataires de justice. Le greffier de la cour d'appel notifie par lettre simple cet appel au débiteur et aux personnes mentionnées au 4° de l'article R. 661-6.
Article R661-5
La personne exerçant une voie de recours au nom du comité d'entreprise ou des délégués du personnel ou, le cas échéant, le représentant des salariés doit, à peine d'irrecevabilité, justifier de son habilitation.
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Article R661-6
L' appel des jugements rendus en application des articles L. 661- 1, L. 661- 6 et des chapitres Ier et III du titre V du livre VI de la partie législative du présent code, est formé, instruit et jugé suivant les modalités de la procédure avec représentation obligatoire prévue par les articles 901 à 925 du code de procédure civile, sous réserve des dispositions qui suivent :
1° Les mandataires de justice qui ne sont pas appelants doivent être intimés.
Dans tous les cas, le procureur général est avisé de la date de l' audience ;
2° L' appel des jugements arrêtant ou rejetant le plan de cession est soumis à la procédure à jour fixe ;
3° Dans les cas autres que ceux qui sont mentionnés au 2° ci- dessus et sauf s' il est recouru à la procédure à jour fixe, l' affaire est instruite conformément aux dispositions du deuxième alinéa de l' article 910 du code de procédure civile. Le président de la chambre peut toutefois décider que l' affaire sera instruite selon les modalités prévues au premier alinéa du même article ;
4° Lorsqu' ils ne sont pas parties à l' instance d' appel, les représentants du comité d' entreprise ou des délégués du personnel et, le cas échéant, le représentant des salariés ainsi que, le cas échéant, le cessionnaire, le cocontractant mentionné à l' article L. 642- 7, les titulaires des sûretés mentionnées à l' article L. 642- 12 ou le bénéficiaire de la location- gérance sont convoqués pour être entendus par la cour. La convocation est faite par lettre simple du greffier ;
5° Aucune intervention n' est recevable dans les dix jours qui précèdent la date de l' audience ;
6° La cour d' appel statue au fond dans les quatre mois suivant le prononcé des jugements mentionnés à l' article L. 661- 6.
Article R661-7
Le greffier de la cour d'appel transmet dans les huit jours du prononcé de l'arrêt une copie de celui-ci au greffier du tribunal pour l'accomplissement des mesures de publicité prévues à l'article R. 621-8 lorsque l'arrêt infirme une décision soumise à la publicité.
Il notifie l'arrêt aux parties et, par remise contre récépissé, au procureur général. Il informe les personnes mentionnées au 4° de l'article R. 661-6 du prononcé de l'arrêt.
Article R661-8
Le pourvoi en cassation du ministère public est fait par une déclaration au greffe de la Cour de cassation selon les règles prévues au premier alinéa de l'article R. 661-4.
Chapitre II : Autres dispositions.
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Article R662-1
A moins qu'il n'en soit disposé autrement par le présent livre :
1° Les règles du code de procédure civile sont applicables dans les matières régies par le livre VI de la partie législative du présent code ;
2° Les notifications des décisions auxquelles procède le greffier sont faites par lettre recommandée avec demande d'avis de réception, conformément aux dispositions de la section IV du chapitre III du titre XVII du livre Ier du code de procédure civile.
Article R662-2
Les formes de procéder applicables devant le tribunal de grande instance dans les matières prévues par le livre VI de la partie législative du présent code sont déterminées par les articles 853 et suivants du code de procédure civile pour tout ce qui n' est pas réglé par ce livre et par le présent livre.
Toute partie qui ne se présente pas personnellement ne peut être représentée que par un avocat.
Article R662-3
Sans préjudice des pouvoirs attribués en premier ressort au juge-commissaire, le tribunal saisi d'une procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire connaît de tout ce qui concerne la sauvegarde, le redressement et la liquidation judiciaires, l'action en responsabilité pour insuffisance d'actif, la faillite personnelle ou l'interdiction prévue à l'article L. 653-8, à l'exception des actions en responsabilité civile exercées à l'encontre de l'administrateur, du mandataire judiciaire, du commissaire à l'exécution du plan ou du liquidateur qui sont de la compétence du tribunal de grande instance.
Article R662-4
Les exceptions d' incompétence sont réglées par les articles 75 à 99 du code de procédure civile sous réserve des dispositions des articles R. 662- 5, R. 662- 6 et R. 662- 7.
Article R662-5
Le tribunal, lorsqu'il se déclare incompétent, peut ordonner les mesures conservatoires ou
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provisoires mentionnées au dernier alinéa de l'article R. 662-7.
Article R662-6
Lorsque sa compétence est contestée, le tribunal, s'il se déclare compétent, statue au fond dans le même jugement.
Article R662-7
Lorsque les intérêts en présence justifient le renvoi de l'une des procédures prévues par le livre VI de la partie législative du présent code devant une autre juridiction en application de l'article L. 662-2, ce renvoi peut être décidé d'office par le président du tribunal saisi, qui transmet sans délai le dossier par ordonnance motivée au premier président de la cour d'appel ou, s'il estime que l'affaire relève d'une juridiction du ressort d'une autre cour d'appel, au premier président de la Cour de cassation.
Ce renvoi peut également être demandé, par requête motivée du ministère public près le tribunal saisi ou près du tribunal qu'il estime devoir être compétent, au premier président de la cour d'appel ou de la Cour de cassation.
En ce cas, le greffier du tribunal saisi notifie la requête aux parties sans délai et transmet le dossier à la cour d'appel ou à la Cour de cassation. S'il n'a pas été statué sur l'ouverture de la procédure, le tribunal sursoit à statuer dans l'attente de la décision du premier président de la cour d'appel ou du premier président de la Cour de cassation.
Le premier président de la cour d'appel ou le premier président de la Cour de cassation désigne dans les dix jours de la réception du dossier, après avis du ministère public, la juridiction qui sera saisie de l'affaire. Dans les mêmes conditions, le premier président de la cour d'appel peut, s'il estime que les intérêts en présence justifient le renvoi de l'affaire devant une juridiction du ressort d'une autre cour d'appel, ordonner la transmission du dossier au premier président de la Cour de cassation.
Les décisions du président du tribunal et du premier président de la cour d'appel ou de la Cour de cassation sont notifiées aux parties sans délai par le greffier du tribunal ou de la cour.
Les décisions prises en application du présent article sont des mesures d'administration judiciaire non susceptibles de recours. Ces décisions s'imposent aux parties et à la juridiction de renvoi désignée.
Dans l'attente de la décision du premier président, le tribunal peut désigner un administrateur judiciaire, sous l'autorité d'un juge commis temporairement à cet effet, pour accomplir, notamment, les diligences prévues à l'article L. 622-4. Le tribunal peut également ordonner, à titre de mesures provisoires, l'inventaire des biens et, en cas de procédure de liquidation judiciaire, l'apposition des scellés.
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Article R662-8
Le président du tribunal, saisi aux fins de désignation d'un mandataire ad hoc en application de l'article L. 611-3, peut faire application, avec l'accord du débiteur, des dispositions du premier alinéa de l'article R. 662-7. Il le peut également pendant le cours de la mission du mandataire ad hoc.
Le débiteur peut également demander ce renvoi en saisissant par voie de requête le premier président de la cour d'appel ou le premier président de la Cour de cassation.
Les dispositions des troisième à sixième alinéas de l'article R. 662-7 sont alors applicables.
Article R662-9
La demande, faite par l'une des personnes poursuivies au président du tribunal en application du second alinéa de l'article L. 662-3 tendant à ce que les débats relatifs aux mesures prises en application des chapitres Ier et III du titre V du livre VI de la partie législative du présent code aient lieu en chambre du conseil, est consignée par le greffier.
La décision rendue par le président est une mesure d'administration judiciaire non susceptible de recours.
Article R662-10
Le ministère public est avisé de la date de l'audience par le greffier dans toute affaire qui doit lui être communiquée.
Lorsque les débats doivent avoir lieu en présence du ministère public, le greffier en fait mention dans cet avis.
Article R662-11
Lorsque le débiteur relève d'un ordre professionnel ou d'une autorité, cet ordre ou cette autorité fait connaître au greffe et aux organes de la procédure la personne habilitée à le représenter. En l'absence d'une telle déclaration, son représentant légal exerce cette fonction.
Article R662-12
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Le tribunal statue sur rapport du juge-commissaire sur tout ce qui concerne la sauvegarde, le redressement et la liquidation judiciaires, l'action en responsabilité pour insuffisance d'actif, la faillite personnelle ou l'interdiction prévue à l'article L. 653-8.
Toutefois, il n'est pas fait de rapport lorsque le tribunal statue sur un recours formé contre une ordonnance de ce juge.
Article R662-13
Les jugements rendus par le tribunal sont prononcés en audience publique, à l'exception de ceux rejetant la demande d'ouverture de l'une des procédures prévues au livre VI de la partie législative du présent code et de ceux rejetant l'homologation de l'accord amiable à l'issue d'une procédure de conciliation.
Article R662-14
Si des fonds dus au débiteur ont été consignés à la Caisse des dépôts et consignations par des tiers, la caisse transfère ces fonds avec les droits, charges et inscriptions qui les grèvent sur le compte de dépôt ouvert par le mandataire de justice qui exerce les fonctions d'administrateur, de commissaire à l'exécution du plan ou de liquidateur. Le mandataire de justice est tenu vis-à-vis de l'acquéreur et des créanciers des obligations qui découlent de ces sûretés.
Article R662-15
La liste des dossiers qui ont été attribués à chacune des personnes auxquelles un mandat afférent aux procédures régies par le livre VI de la partie législative du présent code a été confié, établie en application de l'article L. 662-6, mentionne, pour chacun des débiteurs concernés, son chiffre d'affaires et le nombre de ses salariés tels qu'ils sont définis par l'article R. 621-11.
Article R662-16
Les informations prévues par l'article L. 662-6 sont portées, par le greffe, à la connaissance du garde des sceaux, ministre de la justice, du procureur de la République près les tribunaux qui ont désigné les personnes concernées, du magistrat inspecteur régional, du magistrat coordonnateur mentionné à l'article R. 811-40 ainsi qu'au Conseil national des administrateurs judiciaires et des mandataires judiciaires, dans les deux mois qui suivent le terme de chaque semestre.
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Chapitre III : Des frais de procédure.
Article R663-1
Il ne peut être demandé par le greffier aucune provision au débiteur qui demande l'ouverture d'une procédure de redressement ou de liquidation judiciaire.
Section 1 : De la prise en charge de certains frais de justice par le Trésor public.
Article R663-2
Les ordonnances du juge-commissaire, rendues en application de l'article L. 663-1, sont notifiées par le greffier aux mandataires de justice, au débiteur, au Trésor public ainsi qu'au procureur de la République. Elles peuvent faire l'objet d'un recours dans le mois suivant leur notification, par déclaration au greffe faite contre récépissé ou adressée par lettre recommandée avec demande d'avis de réception. Le recours est porté devant la cour d'appel.L'appel est formé, instruit et jugé suivant la procédure sans représentation obligatoire. Les mandataires de justice, le débiteur, le Trésor public et le ministère public qui ne sont pas appelants sont intimés.
Section 2 : De la rémunération de l'administrateur judiciaire, du commissaire à l'exécution du plan, du mandataire judiciaire et du liquidateur
Sous-section 1 : De la rémunération de l'administrateur judiciaire.
Article R663-3
I. - Les émoluments de l'administrateur judiciaire sont, pour l'accomplissement des diligences résultant de l'application des titres II à IV du livre VI de la partie législative du présent code, fixés comme il est dit aux articles suivants.
II. - Pour l'application de la présente section :
a) Le montant du chiffre d'affaires est défini hors taxes conformément aux dispositions du
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cinquième alinéa de l'article R. 123-200. Il est apprécié à la date de clôture du dernier exercice comptable. Pour l'application des articles R. 663-5 à R. 663-8 et R. 663-28, le chiffre d'affaires est celui réalisé pendant la période d'observation ou de maintien de l'activité. Lorsque le débiteur est une personne morale de droit privé non commerçante, la référence au chiffre d'affaires est, le cas échéant, remplacée par la référence aux ressources hors taxes ou produits hors taxes ;
b) Le total du bilan est défini conformément aux dispositions du quatrième alinéa de l'article R. 123-200 et apprécié à la date de clôture du dernier exercice comptable ;
c) Le nombre des salariés est celui des salariés employés par le débiteur à la date de la demande d'ouverture de la procédure.
III. - Pour l'application des articles R. 663-4 et R. 663-9, la rémunération des administrateurs judiciaires est exprimée en taux de base dont le montant est fixé à 100 euros.
Article R663-4
Il est alloué à l'administrateur judiciaire, pour les diligences relatives au diagnostic de la procédure de sauvegarde ou de redressement judiciaire au titre de laquelle il a été désigné, une rémunération fixée, en fonction du nombre de salariés employés par le débiteur ou de son chiffre d'affaires, selon le barème suivant :
1° 10 taux de base lorsque le nombre de salariés est compris entre 0 et 5 ou que le chiffre d'affaires est compris entre 0 et 750 000 euros ;
2° 20 taux de base lorsque le nombre de salariés est compris entre 6 et 19 ou que le chiffre d'affaires est compris entre 750 001 euros et 3 000 000 euros ;
3° 40 taux de base lorsque le nombre de salariés est compris entre 20 et 49 ou que le chiffre d'affaires est compris entre 3 000 001 euros et 7 000 000 euros ;
4° 80 taux de base lorsque le nombre de salariés est compris entre 50 et 149 ou que le chiffre d'affaires est compris entre 7 000 001 euros et 20 000 000 euros ;
5° 100 taux de base lorsque le nombre de salariés est supérieur à 150 ou que le chiffre d'affaires est supérieur à 20 000 000 euros.
Lorsque le débiteur relève de deux tranches de rémunération différentes au titre respectivement du nombre de salariés employés et du chiffre d'affaires, il y a lieu de se référer à la tranche la plus élevée.
La rémunération est, quel que soit le nombre de salariés du débiteur et son chiffre d'affaires, égale à 80 taux de base lorsque le total du bilan du débiteur est compris entre 3 650 000 euros et 10 000 000 euros et de 100 taux de base lorsqu'il est supérieur à 10 000 000 euros.
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Cette rémunération est versée par le débiteur à l'administrateur judiciaire sans délai dès l'ouverture de la procédure.
Article R663-5
Il est alloué à l'administrateur judiciaire, au titre d'une mission d'assistance du débiteur au cours d'une procédure de sauvegarde ou de redressement judiciaire, un droit proportionnel calculé sur le chiffre d'affaires fixé selon le barème suivant :
1° De 0 à 150 000 euros : 2 % ;
2° De 150 001 euros à 750 000 euros : 1 % ;
3° De 750 001 euros à 3 000 000 euros : 0,60 % ;
4° De 3 000 001 euros à 7 000 000 euros : 0,40 % ;
5° De 7 000 001 euros à 20 000 000 euros : 0,30 %.
Au-delà de 20 000 000 euros, les dispositions de l'article R. 663-13 sont applicables.
Article R663-6
Il est alloué à l'administrateur judiciaire au titre d'une mission de surveillance au cours d'une procédure de sauvegarde le droit proportionnel prévu à l'article R. 663-5 diminué de 25 %.
Article R663-7
Il est alloué à l'administrateur judiciaire au titre d'une mission d'administration de l'entreprise au cours d'une procédure de redressement ou de liquidation judiciaire le droit proportionnel prévu à l'article R. 663-5 majoré de 50 %.
Si, en application de l'article L. 631-12, l'administrateur judiciaire est assisté, pour la gestion de l'entreprise, d'un ou de plusieurs experts, la majoration prévue au premier alinéa n'est pas due.
Article R663-8
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Le droit proportionnel prévu aux articles R. 663-5, R. 663-6 et R. 663-7 est acquis lorsque le tribunal soit a mis fin à la procédure de sauvegarde ou de redressement en application des articles L. 622-12 ou L. 631-16, soit a statué sur le plan de sauvegarde ou de redressement, soit a prononcé la liquidation judiciaire du débiteur au cours d'une procédure de sauvegarde ou de redressement judiciaire. Il est également acquis, dans une procédure de liquidation judiciaire, lorsque le tribunal a arrêté la cession de l'entreprise ou mis fin au maintien de son activité.
Article R663-9
Il est alloué à l'administrateur judiciaire pour l'élaboration du bilan économique, social et environnemental et l'assistance apportée au débiteur pour la préparation d'un plan de sauvegarde ou de redressement une rémunération fixée, en fonction du nombre de salariés employés par le débiteur ou de son chiffre d'affaires, selon le barème suivant :
1° 15 taux de base lorsque le nombre de salariés est compris entre 0 et 5 ou que le chiffre d'affaires est compris entre 0 et 750 000 euros ;
2° 20 taux de base lorsque le nombre de salariés est compris entre 6 et 19 ou que le chiffre d'affaires est compris entre 750 001 euros et 3 000 000 euros ;
3° 60 taux de base lorsque le nombre de salariés est compris entre 20 et 49 ou que le chiffre d'affaires est compris entre 3 000 001 euros et 7 000 000 euros ;
4° 100 taux de base lorsque le nombre de salariés est compris entre 50 et 149 ou que le chiffre d'affaires est compris entre 7 000 001 euros et 20 000 000 euros ;
5° 150 taux de base lorsque le nombre de salariés est supérieur à 150 ou que le chiffre d'affaires hors taxes est supérieur à 20 000 000 euros.
Lorsque le débiteur relève de deux tranches de rémunération différentes au titre respectivement du nombre de salariés employés et du chiffre d'affaires, il y a lieu de se référer à la tranche la plus élevée.
La rémunération est, quel que soit le nombre de salariés du débiteur et son chiffre d'affaires, égale à 100 taux de base lorsque le total du bilan du débiteur est compris entre 3 650 000 euros et 10 000 000 euros et de 150 taux de base lorsqu'il est supérieur à 10 000 000 euros.
Cette rémunération est acquise lorsque le tribunal a statué sur le plan de sauvegarde ou de redressement ou a prononcé la liquidation judiciaire du débiteur au cours d'une procédure de sauvegarde ou de redressement judiciaire. Elle est majorée de 50 % en cas d'arrêté du plan.
En cas de nécessité, le président du tribunal fixe, sur proposition du juge-commissaire, le montant d'une provision à valoir sur ce droit. Cette provision ne peut excéder la moitié de ce droit ni les deux tiers du montant mentionné au premier alinéa de l'article R. 663-13.
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Article R663-10
Il est alloué à l'administrateur judiciaire, lorsque des comités de créanciers sont réunis, un droit de 150 euros par créancier membre d'un comité et, lorsque le plan a été arrêté conformément au projet adopté par les comités, un droit proportionnel fixé à 0,1 % du montant des créances prises en compte en application de l'article R. 626-58.
Article R663-11
Il est alloué à l'administrateur judiciaire, en cas d'arrêté d'un plan de cession au cours d'une procédure de redressement ou de liquidation judiciaire, un droit proportionnel, calculé sur le montant total hors taxe du prix de cession de l'ensemble des actifs compris dans le plan, fixé selon le barème suivant :
1° De 0 à 15 000 euros : 5 % ;
2° De 15 001 à 50 000 euros : 4 % ;
3° De 50 001 à 150 000 euros : 3 % ;
4° De 150 001 à 300 000 euros : 1,5 % ;
5° Au-delà de 300 000 euros : 1 %.
Ce droit n'est acquis que sur la justification de la passation de la totalité des actes de cession.
Article R663-12
Il est alloué à l'administrateur judiciaire un droit proportionnel calculé sur le montant de l'augmentation des fonds propres prévue par un plan de sauvegarde ou de redressement et fixé selon le barème prévu à l'article R. 663-11.
Ce droit n'est acquis que sur la justification du versement de ces fonds.
Article R663-13
Par dérogation aux dispositions de la présente sous-section, l'entière rémunération de
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l'administrateur judiciaire est arrêtée en considération des frais engagés et des diligences accomplies par lui et sans qu'il puisse être fait référence au tarif prévu par la présente sous-section lorsque le total de la rémunération calculée en application de ce tarif excède 100 000 euros hors taxes.
Dans le cas prévu au premier alinéa, la rémunération de l'administrateur, qui ne peut être inférieure à 100 000 euros hors taxes, est arrêtée par le magistrat de la cour d'appel délégué à cette fin par le premier président, sur proposition du juge-commissaire, au vu d'un état de frais et d'un état descriptif des diligences accomplies. Le magistrat délégué recueille au préalable l'avis du ministère public et demande celui du débiteur. Sa décision peut être frappée de recours devant le premier président de la cour d'appel par l'administrateur, le débiteur ou le ministère public.
Le droit prévu à l'article R. 663-4 ainsi que les provisions perçues restent acquis à l'administrateur judiciaire, en tant qu'acomptes sur la rémunération, dans la limite du montant arrêté en application des alinéas qui précèdent.
Sous-section 2 : De la rémunération du commissaire à l'exécution du plan.
Article R663-14
Au terme de chacune des années de l'exécution du plan, il est alloué au commissaire à l'exécution du plan, au titre de sa mission de surveillance de l'exécution du plan, des actions qu'il engage ou qu'il poursuit dans l'intérêt collectif des créanciers et de l'exécution des actes permettant la mise en oeuvre du plan et de son rapport annuel prévu à l'article R. 626-43, une rémunération égale à la moitié de la rémunération fixée en application du barème prévu à l'article R. 663-4.
Ce droit n'est acquis que sur justification du dépôt de ce rapport.
Article R663-15
Il peut être alloué, par le président du tribunal ou son délégué, une rémunération au commissaire à l'exécution du plan lorsqu'il a assisté le débiteur dans la préparation d'un projet ayant pour objet une modification substantielle dans les objectifs ou les moyens du plan. Cette rémunération ne peut être supérieure à la moitié de celle fixée en application du barème prévu à l'article R. 663-9. La situation du débiteur est appréciée à la date de la demande au tribunal de la modification du plan.
Il est alloué au commissaire à l'exécution du plan, dans les mêmes conditions, la rémunération prévue au premier alinéa lorsqu'il a présenté au tribunal une demande en résolution du plan.
Article R663-16
Il est alloué au commissaire à l'exécution du plan, au titre d'une mission de perception et de répartition des dividendes arrêtés par le plan, un droit proportionnel calculé sur le montant cumulé des sommes encaissées par l'ensemble des créanciers ou, à défaut d'encaissement par les créanciers,
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consignées à la Caisse des dépôts et consignations au cours de chacune des années d'exécution du plan. Ce droit est fixé selon le barème suivant :
1° De 0 à 15 000 euros : 3,5 % ;
2° De 15 001 à 50 000 euros : 2,5 % ;
3° De 50 001 à 150 000 euros : 1,5 % ;
4° De 150 001 et jusqu'à 300 000 euros : 0,5 % ;
5° Au-delà de 300 000 euros : 0,25 %.
Lorsqu'il n'est pas fait de répartition entre plusieurs créanciers, un seul d'entre eux étant en mesure de percevoir le dividende, ce droit est réduit de moitié.
Les émoluments prévus au présent article sont arrêtés conformément aux règles de l'article R. 663-13 lorsque le montant du droit proportionnel calculé selon le barème ci-dessus dépasse 15 000 euros au titre d'une année. Dans ce cas, les émoluments ne peuvent être inférieurs à 15 000 euros.
Article R663-17
Le droit prévu à l'article R. 663-22 est alloué au commissaire à l'exécution du plan au titre des créances qu'il porte sur la liste prévue à l'article R. 622-15.
Sous-section 3 : De la rémunération du mandataire judiciaire et du liquidateur.
Article R663-18
Le mandataire judiciaire reçoit pour l'ensemble de la procédure de sauvegarde ou de redressement judiciaire un droit fixe de 2 500 euros. S'il est ensuite désigné comme liquidateur, il ne peut, à ce titre, prétendre au droit fixe.
Si, dans une même procédure, un mandataire judiciaire et un liquidateur distinct sont désignés par le tribunal, le mandataire judiciaire reçoit l'intégralité du droit fixe prévu au premier alinéa et le liquidateur en reçoit la moitié.
Lorsqu'un liquidateur est désigné dans une procédure secondaire d'insolvabilité au sens du
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règlement (CE) n° 1346/2000 du Conseil du 29 mai 2000 relatif aux procédures d'insolvabilité, il perçoit un second droit fixe au titre du devoir d'information auquel il est tenu à l'égard du syndic de la procédure principale. Il en va de même lorsqu'une procédure principale dans laquelle il est désigné est suivie d'une ou de plusieurs procédures secondaires. Dans ce dernier cas, il perçoit autant de droits fixes qu'il existe de procédures secondaires.
Le droit fixe est versé, sans délai, par le débiteur, au liquidateur dès que la décision d'ouverture d'une procédure secondaire est portée à sa connaissance.
Article R663-19
Le liquidateur désigné en application des dispositions de l'article L. 641-1 perçoit pour l'ensemble de la procédure de liquidation judiciaire le droit fixe prévu à l'article R. 663-18, dès que la décision le désignant est portée à sa connaissance et sous réserve du versement au greffier de la somme prévue au dernier alinéa de la note introduisant le tableau n° 7 de l'annexe 7-5 du livre VII.
Les dispositions des articles R. 663-22 à R. 663-25 et R. 663-27 lui sont applicables.
Pour l'application de l'article R. 663-22, la liste des créances est celle de l'article R. 641-39.
Article R663-20
En cas de désignation de plusieurs mandataires judiciaires ou de plusieurs liquidateurs, chacun d'entre eux perçoit le droit fixe prévu à l'article R. 663-18 selon les modalités, le cas échéant, prévues par le deuxième alinéa de l'article R. 663-18.
Article R663-21
Pour l'application de la présente section, constitue une créance :
1° Le total des sommes déclarées par chaque fournisseur créancier ;
2° Le total des sommes déclarées par chaque prestataire de service créancier au titre de chacun des contrats qu'il a conclu avec le débiteur ;
3° Le total des sommes déclarées par chaque établissement de crédit créancier au titre de chacun des contrats qu'il a conclu avec le débiteur ;
4° Le total des sommes déclarées par chaque organisme social créancier pour chacun des rangs de privilège dont ses créances sont assorties ;
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5° Le total des sommes déclarées par le Trésor public par catégorie de créances.
Article R663-22
Il est alloué au mandataire judiciaire, pour l'enregistrement des créances déclarées et non vérifiées ainsi que des créances portées sur la liste prévue à l'article R. 622-15, un droit fixe de :
1° 5 euros par créance dont le montant est inférieur à 150 euros ;
2° 10 euros par créance dont le montant est égal ou supérieur à 150 euros.
Article R663-23
Il est alloué au mandataire judiciaire, pour la vérification des créances, un droit fixe par créance, autre que salariale, inscrite sur l'état des créances mentionné à l'article R. 624-8 de :
30 euros par créance dont le montant est compris entre 40 euros et 150 euros ;
50 euros par créance dont le montant est supérieur à 150 euros.
Article R663-24
Pour l'établissement des relevés des créances salariales, il est alloué au mandataire judiciaire un droit de 120 euros par salarié.
Article R663-25
Il est alloué au mandataire judiciaire un droit fixe de 100 euros :
1° Pour la contestation des créances autres que salariales, par créance dont l'admission ou le rejet a donné lieu à une décision du juge-commissaire inscrite sur l'état des créances mentionné à l'article R. 624-8 ;
2° Pour tout contentieux portant sur une demande en revendication ou en restitution ayant donné lieu à une décision du juge-commissaire ;
3° Pour toute instance introduite ou reprise devant la juridiction prud'homale en application des articles L. 625-1 et L. 625-3 et à laquelle il a été mis fin soit par une décision judiciaire au terme
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d'une instance dans laquelle il a été présent ou représenté, soit par la conclusion d'un accord amiable visé par le juge-commissaire auquel le mandataire judiciaire a été partie.
Article R663-26
Lorsqu'il est fait application de l'article L. 631-16 et que le mandataire judiciaire est désigné par le tribunal pour répartir des fonds entre les créanciers, il lui est alloué le droit proportionnel prévu à l'article R. 663-16.
Article R663-27
Il est alloué au liquidateur un droit fixe au titre de l'ensemble des obligations résultant de la cessation d'activité d'une ou de plusieurs installations classées au sens du titre Ier du livre V du code de l'environnement. Ce droit est fixé selon le barème suivant :
1° 500 euros lorsque la ou les installations classées sont soumises à déclaration ;
2° 1 500 euros lorsque l'une au moins des installations classées est soumise à autorisation ou à enregistrement ;
3° 4 500 euros lorsque l'une au moins des installations classées figure sur une liste prévue au IV de l'article L. 515-8 du code de l'environnement.
Ce droit est doublé lorsque l'une au moins des installations classées soumises à autorisation ou à enregistrement a fait l'objet d'un arrêté de l'autorité administrative prescrivant des mesures d'urgence et de mise en sécurité du site.
Article R663-28
Il est alloué au liquidateur, au titre d'une mission d'administration de l'entreprise lorsque le maintien de l'activité a été autorisé en application de l'article L. 641-10, un droit proportionnel calculé sur le chiffre d'affaires fixé selon le barème suivant :
1° De 0 à 150 000 euros : 3 % ;
2° De 150 001 à 750 000 euros : 1,5 % ;
3° De 750 001 à 3 000 000 euros : 0,90 %.
Article R663-29
I. - Il est alloué au liquidateur :
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1° Au titre des cessions d'actifs mobiliers corporels, un droit proportionnel, calculé sur le montant total toutes taxes comprises du prix des actifs cédés, déduction faite de la rémunération toutes taxes comprises des intervenants, autres que le liquidateur, ayant participé aux opérations de cession ;
2° Pour tout encaissement de créance ou recouvrement de créance, un droit proportionnel calculé sur le montant total toutes taxes comprises des sommes encaissées ou recouvrées, déduction faite de la rémunération toutes taxes comprises des intervenants, autres que le liquidateur, ayant participé aux recouvrements ;
3° Au titre de la réalisation d'actifs immobiliers et mobiliers incorporels, un droit proportionnel, calculé sur le montant du prix, le cas échéant toutes taxes comprises, de chacun des actifs cédés.
II. - Les droits prévus au présent article sont calculés selon les tranches prévues par le barème suivant :
1° De 0 à 15 000 euros : 5 % ;
2° De 15 001 à 50 000 euros : 4 % ;
3° De 50 001 à 150 000 euros : 3 % ;
4° De 150 001 à 300 000 euros : 1,5 % ;
5° Au-delà de 300 000 euros : 1 %.
Pour l'application de ce barème, l'assiette des montants pris en compte est nette des intérêts servis au liquidateur par la Caisse des dépôts et consignations.
III. - La rémunération prévue au présent article n'est pas due au liquidateur au titre de la cession des actifs compris dans un plan de cession. Lorsqu'il n'a pas été désigné d'administrateur judiciaire, il lui est alloué à ce titre le droit prévu à l'article R. 663-11.
Article R663-30
Il est alloué au liquidateur, au terme des répartitions aux créanciers mentionnés à l'article L. 622-24 et des paiements des créances mentionnées au I de l'article L. 641-13, un droit proportionnel calculé sur le montant cumulé des sommes encaissées par l'ensemble des créanciers ou consignées à la Caisse des dépôts et consignations et fixé selon le barème suivant :
1° De 0 à 15 000 euros : 4,5 % ;
2° De 15 001 à 50 000 euros : 3,5 % ;
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3° De 50 001 à 150 000 euros : 2,5 % ;
4° De 150 001 à 300 000 euros : 1,5 % ;
5° Au-delà de 300 000 euros : 0,75 %.
Lorsqu'il n'est pas fait de répartition entre plusieurs de ces créanciers, un seul d'entre eux étant en mesure de percevoir un versement, ce droit proportionnel est réduit de moitié.
Article R663-31
Par dérogation aux dispositions de la présente sous-section, l'entière rémunération du liquidateur est arrêtée en considération des frais engagés et des diligences accomplies par lui et sans qu'il puisse être fait référence au tarif prévu par la présente sous-section lorsque le total de la rémunération calculée en application de ce tarif excède 75 000 euros hors taxes.
Dans le cas prévu au premier alinéa, la rémunération du liquidateur, qui ne peut être inférieure à 75 000 euros hors taxes, est arrêtée par le magistrat de la cour d'appel délégué à cette fin par le premier président, sur proposition du juge-commissaire, au vu d'un état de frais et d'un état descriptif des diligences accomplies. Le magistrat délégué recueille au préalable l'avis du ministère public et demande celui du débiteur. Sa décision peut être frappée de recours devant le premier président de la cour d'appel par le liquidateur, le débiteur et le ministère public.
Le droit prévu à l'article R. 663-18 ainsi que les acomptes perçus restent acquis en tant qu'acomptes sur la rémunération dans la limite du montant arrêté en application des alinéas précédents.
Sous-section 4 : Dispositions communes à la rémunération de l'administrateur judiciaire, du commissaire à l'exécution du plan, du mandataire judiciaire et du liquidateur.
Article R663-32
Les administrateurs judiciaires, commissaires à l'exécution du plan, mandataires judiciaires et liquidateurs ont droit au remboursement des débours exposés au titre de leur mandat ainsi que des droits de toute nature payés au Trésor, arrêtés par le président du tribunal ou par son délégué, sur justificatif de leur compte détaillé. Ce remboursement peut être trimestriel.
Article R663-33
Les administrateurs judiciaires, commissaires à l'exécution du plan, mandataires judiciaires,
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liquidateurs, ont droit au remboursement des taxes et droits fiscaux payés par eux pour le compte de l'entreprise.
Article R663-34
Les émoluments dus au titre de la procédure de sauvegarde, de redressement judiciaire ou de liquidation judiciaire sont arrêtés avant la clôture de la procédure. Sous réserve des dispositions des articles R. 663-13 et R. 663-31, le président du tribunal ou son délégué statue au vu d'un compte détaillé. Lorsque la procédure est de la compétence du tribunal de grande instance, le président du tribunal délègue un magistrat à cette fin.
A l'exception des droits prévus aux articles R. 663-4 et R. 663-18 à R. 663-20 et des provisions et acomptes autorisés, ils ne sont perçus qu'après avoir été arrêtés.
Les émoluments dus au titre de la procédure de liquidation judiciaire sont arrêtés au vu du rapport de clôture déposé par le liquidateur. Ils ne sont définitivement acquis qu'après leur arrêté définitif par le président du tribunal ou son délégué. Aucun émolument ne peut être perçu par le liquidateur après l'approbation de son compte rendu de fin de mission, sans préjudice de la perception de l'indemnité prévue par l'article L. 663-3.
Article R663-35
Lorsque plusieurs administrateurs judiciaires, commissaires à l'exécution du plan, mandataires judiciaires ou liquidateurs sont désignés dans une même procédure, chacun des émoluments auxquels cette procédure donne droit, à l'exception du droit fixe prévu, à l'article R. 663-18, est majoré de 30 %. Chacun des mandataires de justice désignés en perçoit une part convenue entre eux. A défaut d'accord, le président du tribunal ou son délégué détermine la part de la rémunération qui revient à chacun après avoir entendu le débiteur et recueilli l'avis du ministère public.
En cas de remplacement de l'un des mandataires de justice et à défaut d'accord entre eux, le président du tribunal ou son délégué partage ces émoluments entre chacun des mandataires successivement désignés en fonction des diligences qu'il a effectuées, après avoir entendu le débiteur et recueilli l'avis du ministère public.
Article R663-36
En cas de nécessité, par dérogation aux dispositions de l'article R. 663-34, le président du tribunal fixe, sur proposition du juge commissaire, le montant d'acomptes à valoir sur la rémunération du mandataire judiciaire et du liquidateur.
Ces acomptes sont fixés sur justification de l'accomplissement des diligences au titre desquelles leur droit à rémunération est acquis et au vu d'un compte provisoire détaillé de leurs émoluments.
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Le montant total des acomptes, qui comprennent le droit prévu aux articles R. 663-18 à R. 663-20, ne peut excéder les deux tiers de la rémunération due au mandataire judiciaire et au liquidateur ni les deux tiers de la somme mentionnée au premier alinéa de l'article R. 663-31. Il ne peut être autorisé plus d'un acompte par semestre.
Article R663-37
S'il advient que des sommes ont été perçues à titre de provision ou d'acomptes et qu'elles se révèlent excéder les montants fixés au dernier alinéa de l'article R. 663-9 et à l'article R. 663-36, elles sont immédiatement restituées.
Article R663-38
La décision autorisant le versement d'une provision ou d'un acompte ou arrêtant les émoluments des administrateurs judiciaires, commissaires à l'exécution du plan, mandataires judiciaires et liquidateurs peut être contestée par le mandataire de justice concerné, le débiteur ou le ministère public. Elle est, dans les quinze jours de sa date, communiquée au ministère public et, selon le cas, à l'administrateur judiciaire ou au mandataire judiciaire concerné, par le greffier de la juridiction et notifiée par lui au débiteur par lettre recommandée avec demande d'avis de réception. La lettre de notification indique le délai et les modalités selon lesquelles la contestation peut être portée devant le président du tribunal de grande instance ou le premier président de la cour d'appel territorialement compétent.
Article R663-39
La demande de taxe peut être faite dans le délai d' un mois à compter de la communication ou de la notification prévue à l' article précédent, oralement ou par écrit au greffe du tribunal de grande instance ou de la cour d' appel. Elle est motivée.
Le président du tribunal de grande instance ou le magistrat délégué par lui à cet effet, statue sur la demande dans les conditions prévues par les articles 709 et 711 à 718 du code de procédure civile.
Article R663-40
Les actions des administrateurs judiciaires, commissaires à l'exécution du plan, mandataires judiciaires, liquidateurs, en matière de rémunération, se prescrivent par six mois à compter de la notification prévue à l'article R. 663-38.
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Section 3 : De l'indemnisation des dossiers impécunieux.
Article R663-41
Le seuil mentionné à l'article L. 663-3 est fixé à la somme de 1 500 euros (HT).
Article R663-42
Le comité d'administration du fonds institué par l'article L. 663-3 est présidé par un magistrat de la Cour des comptes désigné par le premier président de cette juridiction. Il comprend un représentant du garde des sceaux, ministre de la justice et un membre du Conseil national des administrateurs judiciaires et des mandataires judiciaires, désignés, sur proposition de ce conseil, par le garde des sceaux, ministre de la justice. Un représentant de la Caisse des dépôts et consignations est entendu en tant que de besoin par le comité.
Article R663-43
La Caisse des dépôts et consignations assure la gestion administrative, comptable et financière du fonds.
A ce titre, elle est chargée :
1° D'effectuer les opérations de prélèvement sur les intérêts servis sur les dépôts mentionnés au troisième alinéa de l'article L. 663-3 ;
2° De verser aux mandataires judiciaires et aux liquidateurs les sommes qui leur sont attribuées en application du deuxième alinéa de l'article L. 663-3 ;
3° De gérer la trésorerie excédentaire du fonds ;
4° D'assurer la surveillance de son équilibre financier ;
5° De tenir sa comptabilité ;
6° De rendre compte de sa gestion.
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Article R663-44
La Caisse des dépôts et consignations ouvre dans ses livres un compte bancaire spécifique au nom du fonds.
Article R663-45
La Caisse des dépôts et consignations précise la nomenclature des comptes bancaires rémunérés à vue et à terme ouverts dans ses livres, destinés à recevoir les fonds déposés en application des articles L. 622-18, L. 626-25 et L. 641-8.
Les intérêts des comptes bancaires sont imputés au crédit du compte ouvert au nom du fonds dans les livres de la Caisse des dépôts et consignations.
Le garde des sceaux, ministre de la justice, fixe par arrêté le taux du prélèvement sur les intérêts, sur proposition du comité d'administration du fonds. En cas de modification de ce taux, celui-ci s'applique à tous les intérêts servis à compter de la date d'effet de cette modification, quelle que soit la période au titre de laquelle ces intérêts ont été produits.
Article R663-46
Le versement des sommes aux mandataires judiciaires et aux liquidateurs est effectué par la Caisse des dépôts et consignations sur un compte bancaire ouvert au nom du bénéficiaire au vu d'un extrait de la décision qui les accorde et, sauf si cette décision bénéficie de l'exécution provisoire, d'un certificat de non-appel.
Article R663-47
Une convention entre le garde des sceaux, ministre de la justice, agissant au nom de l'Etat et la Caisse des dépôts et consignations précise les modalités selon lesquelles les missions mentionnées aux articles R. 663-43 et R. 663-46 sont assurées par la caisse, ainsi que les modalités de calcul des frais de gestion du fonds, qui sont imputés au débit du compte ouvert au nom de celui-ci.
Article R663-48
Lorsqu'il a approuvé le compte rendu de fin de mission du mandataire judiciaire ou du liquidateur, le juge-commissaire propose au tribunal de faire application de l'article L. 663-3 si les conditions prévues par cet article sont réunies. Cette proposition, qu'il joint, dans ce cas, à sa décision
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d'approbation, mentionne le montant des émoluments perçus par le mandataire de justice et est accompagnée des pièces du compte rendu de fin de mission en justifiant.
Le tribunal se saisit d'office. La décision par laquelle il statue sur l'impécuniosité et fixe le montant de l'indemnité qui sera versée au mandataire judiciaire ou au liquidateur est susceptible d'appel de la part du ministère public, du mandataire judiciaire et du liquidateur.
Article R663-49
Lorsque la procédure de liquidation judiciaire est reprise après avoir été clôturée et que le liquidateur a bénéficié de l'indemnisation prévue à l'article L. 663-3, toute demande d'émolument au titre de cette reprise de procédure est transmise pour avis au ministère public. Ce droit à rémunération est réduit du montant de l'indemnisation perçue avant de pouvoir être acquis.
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Partie réglementaire
LIVRE VI : Des difficultés des entreprises.
TITRE VII : Dispositions dérogatoires particulières aux départements de la Moselle, du Bas-Rhin et du Haut-Rhin.
Article R670-1
Les formes de procéder applicables devant les tribunaux de grande instance des départements du Bas- Rhin, du Haut- Rhin et de la Moselle dans les matières prévues par le présent code sont déterminées par l' article 31 de la loi du 1er juin 1924 portant introduction des lois commerciales françaises dans ces départements et par les articles 37 à 39 de l' annexe du code de procédure civile relative à l' application de ce code dans ces mêmes départements.
Article R670-2
Dans les départements du Bas-Rhin, du Haut-Rhin et de la Moselle, le tribunal de l'exécution connaît :
1° Des difficultés d'exécution des décisions prises par le juge commissaire en application de l'article L. 642-18 ;
2° Des contestations relatives au règlement de l'ordre par le liquidateur.
Le tribunal d'exécution exerce les attributions conférées par le présent livre au juge des ordres du tribunal de grande instance.
Le liquidateur ne peut, ni en son nom personnel, ni en qualité de mandataire judiciaire, être déclaré adjudicataire des immeubles du débiteur.
Article R670-3
Dans les départements du Bas-Rhin, du Haut-Rhin et de la Moselle :
1° L'ordonnance prévue à l'article R. 642-28 comporte, outre les indications mentionnées à l'article
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R. 642-22, les énonciations figurant à l'article 144 de la loi du 1er juin 1924 mettant en vigueur la législation civile française dans les départements du Bas-Rhin, du Haut-Rhin et de la Moselle ;
2° L'ordonnance prévue à l'article R. 642-30 comporte, outre les indications mentionnées à l'article R. 642-22, les énonciations figurant au deuxième alinéa de l'article 261 de la même loi ;
3° La vente par voie d'adjudication amiable est soumise aux dispositions des articles 249 à 254 de la même loi.
Article R670-4
Dans les départements du Bas-Rhin, du Haut-Rhin et de la Moselle, la répartition du produit des ventes et le règlement de l'ordre des créanciers par le liquidateur mentionnés au cinquième alinéa de l'article L. 642-18 sont exclusivement soumis aux dispositions prévues par le présent livre.
Article R670-5
Pour l'application des dispositions du présent livre dans les départements du Bas-Rhin, du Haut-Rhin et de la Moselle, les mots :
" bureau des hypothèques " ou " conservateur des hypothèques " doivent s'entendre comme signifiant " bureau foncier ".
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Partie réglementaire
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce.
TITRE Ier : Du réseau des chambres de commerce et d'industrie.
Chapitre Ier : De l'organisation et des missions du réseau des chambres de commerce et d'industrie.
Section 1 : Des chambres de commerce et d'industrie.
Sous-section 1 : Dispositions générales.
Article R711-1
Il y a au moins une chambre de commerce et d'industrie par département. Toutefois, la circonscription d'une chambre de commerce et d'industrie peut s'étendre à plusieurs départements lorsque la situation économique le justifie.
Article R711-2
Les chambres de commerce et d'industrie sont instituées sur la proposition du ministre chargé de leur tutelle. L'avis du conseil municipal de la commune désignée pour être le siège de la nouvelle chambre ainsi que celui du conseil général et des chambres de commerce et d'industrie du ou des départements sur le territoire desquels s'étend sa circonscription sont préalablement demandés.
Article R711-3
Les chambres de commerce et d'industrie peuvent s'adjoindre des membres associés en nombre au plus égal à la moitié des membres élus. Les membres associés sont désignés par la chambre après chaque renouvellement parmi des personnalités qualifiées détenant des compétences utiles à l'établissement public, notamment parmi les pilotes maritimes dans les chambres dont la
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circonscription comporte des ports maritimes.
Article R711-4
Les membres associés prennent part aux délibérations avec voix consultative et peuvent représenter les chambres dans toutes les instances auxquelles celles-ci participent.
Article D711-5
En application des articles L. 131-2 et L. 134-1 du code du travail, les chambres de commerce et d'industrie sont autorisées à conclure des accords collectifs de travail, conformément aux dispositions des articles L. 131-2 et L. 441-1 du même code, au bénéfice des seuls personnels qu'elles emploient sous contrat relevant du droit du travail.
Article R711-6
Les chambres de commerce et d'industrie peuvent délivrer des certificats pour attester de l'origine prévue par le règlement (CEE) n° 2454/93 de la Commission du 2 juillet 1993 fixant certaines dispositions d'application du règlement (CEE) n° 2913/92 du Conseil du 12 octobre 1992 établissant le code des douanes communautaire, par la convention de Genève pour la simplification des formalités douanières du 3 novembre 1923 et par la convention internationale de Kyoto pour la simplification et l'harmonisation des régimes douaniers du 18 juin 1974.
Chaque année les chambres de commerce et d'industrie sont appelées à présenter au ministre chargé de leur tutelle des propositions en vue de la désignation d'adjoints aux commissaires experts pour les affaires de douane.
Article R711-7
Les chambres de commerce et d'industrie peuvent saisir le préfet de toutes les questions intéressant le fonctionnement des services qui leur sont confiés, et lui transmettent chaque année un compte rendu général de leurs travaux.
Article R711-8
Les chambres de commerce et d'industrie peuvent correspondre directement entre elles et avec les administrations publiques de leur circonscription pour toutes les questions relatives aux intérêts commerciaux et industriels du pays.
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Elles peuvent provoquer, par l'entremise de leurs présidents, une entente sur les objets entrant dans leurs attributions et intéressant leurs circonscriptions respectives.
Article D711-9
Les chambres de commerce et d'industrie établissent annuellement, dans le cadre de leur rapport d'activité, un relevé des indicateurs d'activité, de qualité et de performance, prévus à l'article D. 711-56-1, qu'elles transmettent à la chambre régionale de commerce et d'industrie et à l'assemblée des chambres françaises de commerce et d'industrie.
Article D711-10
Les chambres de commerce et d'industrie ont notamment une mission de service aux entreprises industrielles, commerciales et de services de leur circonscription.
Pour l'exercice de cette mission, elles créent et gèrent des centres de formalités des entreprises et apportent à celles-ci toutes informations et tous conseils utiles pour leur développement.
Elles peuvent également créer et assurer directement d'autres dispositifs de conseil et d'assistance aux entreprises, dans le respect du droit de la concurrence et sous réserve de la tenue d'une comptabilité analytique.
Article R711-11
Les chambres de commerce et d'industrie peuvent publier le compte rendu de leurs séances.
Sous-section 2 : Du fonctionnement.
Article R711-12
Dans les six semaines qui suivent le jour du scrutin, les membres élus de la chambre de commerce et d'industrie sont installés par le préfet, qui dresse procès-verbal de la séance.
Article R711-13
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Après chaque renouvellement, la chambre de commerce et d'industrie élit un bureau composé d'un président, de deux vice-présidents, d'un trésorier, d'un trésorier adjoint et d'un ou deux secrétaires.
Le président et les deux vice-présidents représentent les trois catégories professionnelles.
Le préfet peut autoriser l'augmentation du nombre de vice-présidents et de secrétaires, notamment en cas d'application de l'article R. 711-18.
Article R711-14
Il est pourvu immédiatement au remplacement de tout membre du bureau dont le poste est devenu vacant. En cas de vacance de la moitié des postes, le bureau est réélu dans sa totalité.
Si l'ensemble du bureau de la chambre de commerce et d'industrie a démissionné, le préfet assure l'expédition des affaires courantes jusqu'à l'élection d'un nouveau bureau.
Article R711-15
Les candidats aux fonctions de membre du bureau attestent auprès du préfet qu'ils remplissent les conditions prévues à l'article L. 713-4 et qu'ils ne sont frappés d'aucune des incapacités mentionnées à l'article L. 713-3.
Nul ne peut être simultanément membre du bureau d'une chambre de commerce et d'industrie et membre du bureau d'une chambre de métiers et de l'artisanat. En cas de cumul, l'intéressé fait connaître au préfet, dans les dix jours qui suivent la survenance du cumul, celle des deux fonctions qu'il choisit d'exercer. A défaut, il est considéré comme ayant choisi la dernière fonction à laquelle il a été élu.
Sous-section 3 : De la délégation des chambres de commerce et d'industrie.
Article R711-18
Lorsque, dans la circonscription d'une chambre de commerce et d'industrie, l'existence de bassins d'activités économiques le rend nécessaire, des délégations correspondant à des limites administratives peuvent y être créées par arrêté préfectoral. Toutefois, aucune délégation ne peut être créée au-delà du 31 mai de l'année au cours de laquelle il est procédé au renouvellement de la chambre de commerce et d'industrie.
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Article R711-19
Le nombre de membres de la délégation et leur répartition entre catégories et sous-catégories professionnelles sont arrêtés par le préfet dans les conditions prévues à l'article R. 713-69.
Les membres de la délégation sont élus lors des élections de la chambre de commerce et d'industrie et répartis entre catégories et sous-catégories selon les mêmes règles que celles qui sont applicables aux autres membres de la chambre de commerce et d'industrie.
Article R711-20
La délégation, qui ne peut se réunir par catégorie professionnelle, soumet à la chambre ses propositions et ses voeux. Elle peut être consultée directement par l'administration sur les problèmes particuliers de sa circonscription.
La délégation soumet à l'approbation de la chambre de commerce et d'industrie ses règles de fonctionnement, qui sont intégrées au règlement intérieur de la chambre.
Article R711-21
La délégation élit son président qui est de droit vice-président de la chambre de commerce et d'industrie.
La délégation se réunit sur convocation de son président ou à la demande du tiers au moins de ses membres. Elle peut s'adjoindre des membres associés dans les conditions prévues aux articles R. 711-3 et R. 711-4.
Sous-section 4 : Des groupements interconsulaires.
Article R711-22
Peuvent être érigés en établissements publics les groupements que les chambres de commerce et d'industrie sont autorisées à former entre elles pour la défense d'intérêts spéciaux et communs.
Ces établissements publics, dénommés "groupements interconsulaires", sont créés par décret pris sur le rapport du ministre chargé de la tutelle des chambres de commerce et d'industrie, sur proposition des chambres de commerce et d'industrie intéressées, après avis du ou des préfets de département et du ou des préfets de région intéressés.
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Article R711-23
Les groupements interconsulaires sont autorisés à fonder et à administrer tous établissements à usage de commerce et d'industrie dans les conditions énoncées à l'article R. 712-28 et dans la limite des attributions définies par le décret en Conseil d'Etat prévu à l'article R. 711-22. Dans la même limite, ils peuvent participer à toute opération propre à assurer le développement économique de la circonscription des chambres qui les constituent.
Article R711-24
Les groupements interconsulaires peuvent être déclarés concessionnaires de travaux publics ou chargés de services publics dans les mêmes conditions que les chambres de commerce et d'industrie. La concession peut se rapporter non seulement à des travaux entrepris par l'Etat, mais aussi à ceux qui sont à la charge des collectivités locales, de leurs établissements publics ou d'associations syndicales.
Article R711-25
Le décret prévu à l'article R. 711-22 fixe le nombre de sièges de l'assemblée générale du groupement interconsulaire réservés à chacune des chambres de commerce et d'industrie constituant le groupement ; ce nombre ne peut être inférieur à deux. Le total des sièges ne peut être inférieur à dix ou supérieur à trente, toutefois il peut être dérogé à cette règle lorsque le nombre des chambres participantes est supérieur à dix.
Les présidents des chambres constituant un groupement interconsulaire sont membres de droit de l'assemblée générale de celui-ci. Ils peuvent se faire suppléer par un membre du bureau de leur chambre.
Les autres membres de l'assemblée générale du groupement sont élus dans chaque chambre de commerce et d'industrie participante par l'ensemble des membres titulaires de celle-ci.
L'élection a lieu dans les quinze jours qui suivent l'installation de la chambre, au scrutin uninominal à un tour.
Article R711-26
Les préfets des départements dans lesquels se trouvent comprises les circonscriptions des chambres de commerce et d'industrie participant au groupement vérifient que la désignation des représentants a été faite dans les conditions prévues à l'article R. 711-25 et communiquent le procès-verbal des opérations au préfet de la région où est situé le siège du groupement.
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Le préfet du département où est situé le siège du groupement procède à l'installation, dans leurs fonctions, des membres du groupement.
Article R711-27
Les représentants des chambres de commerce et d'industrie autres que les présidents, membres de droit, sont élus pour cinq ans. Toutefois, si leur compagnie est mise en renouvellement une année autre que celle du renouvellement quinquennal, leur mandat vient automatiquement à expiration et la chambre de commerce et d'industrie procède dans les conditions prévues à l'article R. 711-25 à de nouvelles désignations. Si un groupement interconsulaire est créé dans la période qui sépare deux élections quinquennales consulaires, les membres de son assemblée générale sont renouvelés lors du prochain renouvellement quinquennal.
Entre deux renouvellements quinquennaux, des désignations peuvent intervenir dans les conditions fixées à l'article R. 711-25 pour combler les vacances éventuelles.
A partir du jour du renouvellement quinquennal jusqu'au jour de l'installation des nouveaux membres de l'assemblée générale du groupement, celle-ci ne peut se réunir que pour procéder aux actes d'administration conservatoires et urgents. En aucun cas, il ne lui est permis d'engager des dépenses excédant les ressources disponibles de l'exercice courant.
Article R711-28
Le bureau du groupement comprend un président, un secrétaire et un trésorier.
En cas de vacance, le bureau est complété.
Le bureau prépare, pour les soumettre à l'assemblée générale, les projets de budgets et les comptes du groupement interconsulaire.
Le président représente le groupement interconsulaire auprès des pouvoirs publics et dans tous les actes de la vie civile. Il peut déléguer cette mission pour une période et un objet déterminés par un mandat révocable à tout instant.
Article R711-29
L'assemblée se réunit chaque fois qu'elle est convoquée par son président, de sa propre initiative ou sur la demande du ministre chargé de la tutelle des chambres de commerce et d'industrie.
Le président réunit également l'assemblée générale toutes les fois qu'il est saisi d'une demande
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émanant du tiers de ses membres.
Dans l'intervalle des sessions, le groupement est représenté par le bureau. L'assemblée générale peut déléguer ses pouvoirs au bureau pour une période et un objet déterminés. Cette délégation est révocable à tout instant.
Article R711-31
Le groupement interconsulaire peut être dissous par décret pris sur le rapport du ministre chargé de la tutelle des chambres de commerce et d'industrie, sur proposition des chambres intéressées ou d'office.
L'admission de nouvelles chambres de commerce et d'industrie à un groupement et le retrait de chambres de commerce et d'industrie parties à un groupement sont autorisés par décret.
Section 2 : Des chambres régionales de commerce et d'industrie.
Sous-section 1 : Des compétences.
Article R711-32
Les chambres régionales de commerce et d'industrie peuvent être autorisées à fonder et administrer, dans les mêmes conditions que celles prévues pour les chambres de commerce et d'industrie, tous établissements à l'usage du commerce ou de l'industrie. Les chambres régionales de commerce et d'industrie peuvent être déclarées concessionnaires de travaux publics ou chargées de services publics dans les mêmes conditions que les chambres de commerce et d'industrie. La concession peut se rapporter non seulement à des travaux entrepris par l'Etat mais aussi à ceux qui sont à la charge des départements, des communes ou des associations syndicales.
Article R711-33
Lorsque l'importance d'un établissement, ouvrage ou service géré par une chambre de commerce et d'industrie excède les moyens financiers de cette compagnie, la gestion ou l'exploitation peut en être confiée à la chambre régionale de commerce et d'industrie.
Cette décision est prise, suivant le cas, par le ministre chargé de la tutelle des chambres de commerce et d'industrie ou par les autorités disposant des pouvoirs de concéder, après avis du ministre compétent et de la chambre de commerce et d'industrie intéressée.
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Les modalités du transfert sont précisées dans une convention soumise à l'approbation du ministre chargé de la tutelle des chambres de commerce et d'industrie.
Article R711-34
La compétence de la chambre régionale de commerce et d'industrie ne s'étend qu'aux questions intéressant les circonscriptions d'au moins deux des chambres de commerce qui dépendent d'elle.
Article D711-34-1
En application du premier alinéa de l'article L. 711-9, lorsqu'une chambre régionale de commerce et d'industrie constate qu'un service ou une prestation obligatoires au titre de l'article D. 711-67-2 ne sont pas rendus aux ressortissants d'une chambre de commerce et d'industrie ou d'un groupement interconsulaire de sa circonscription, elle élabore avec ladite chambre des propositions visant à remédier à la situation.
Ces propositions sont transmises à l'assemblée des chambres françaises de commerce et d'industrie.
Article D711-34-2
En application du 1° de l'article L. 711-8, les chambres régionales de commerce et d'industrie favorisent la mutualisation des actions des chambres de commerce et d'industrie de leur circonscription, notamment par le biais des conventions prévues à l'article D. 711-67-5.
Elles peuvent à ce titre développer des actions de coopération et proposer la création de services communs au sein de leur circonscription, le cas échéant en concertation avec les établissements du réseau des chambres de métiers et de l'artisanat et des chambres d'agriculture.
Article D711-34-3
En application du 1° de l'article L. 711-8 et de l'article L. 711-9, les chambres régionales de commerce et d'industrie établissent annuellement, dans le cadre de leur rapport d'activité, un relevé des indicateurs prévus à l'article D. 711-56-1 les concernant, ainsi qu'un relevé consolidant ceux fournis par les chambres de commerce et d'industrie, qu'elles transmettent à l'assemblée des chambres françaises de commerce et d'industrie.
Sous-section 2 : Des schémas directeurs.
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Article R711-35
Le schéma directeur mentionné au 2° de l'article L. 711-8 détermine, pour les chambres de commerce et d'industrie qui y sont inscrites, leur commune ou secteur géographique d'implantation et leur circonscription territoriale, ainsi que, le cas échéant, la commune ou le secteur géographique d'implantation et les limites administratives des délégations mentionnées aux articles R. 711-18 et R. 711-20.
Il est établi par les chambres régionales de commerce et d'industrie dans les conditions définies à l'article R. 711-36.
Le schéma directeur est accompagné d'un rapport justifiant les choix effectués au regard de ces critères et du schéma régional d'aménagement et de développement du territoire, lorsque ce dernier a été adopté.
Article R711-36
Ne peuvent figurer dans le schéma directeur que des chambres de commerce et d'industrie dont le nombre de ressortissants est égal ou supérieur à 4 500.
Toutefois, parmi celles dont le nombre de ressortissants est inférieur à 4 500, peuvent être inscrites au schéma :
1° Les chambres de commerce et d'industrie dont les dernières bases d'imposition connues sont supérieures à 350 millions d'euros ;
2° Les chambres de commerce et d'industrie concessionnaires, dans leur circonscription territoriale, d'un ou plusieurs ports ou aéroports dont le développement est prévu dans le schéma régional d'aménagement et de développement du territoire ;
3° Les chambres de commerce et d'industrie dont la circonscription territoriale correspond au département.
Une chambre de commerce et d'industrie dont la circonscription territoriale correspond au moins à un département ne peut être retirée du schéma directeur que sur l'avis conforme de son assemblée générale.
Article R711-37
Le schéma directeur peut prévoir, dans le respect des conditions définies à l'article R. 711-36, la fusion de chambres de commerce et d'industrie dont les circonscriptions sont limitrophes mais qui
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appartiennent à des régions différentes.
La fusion est inscrite dans les schémas directeurs établis et adoptés par les chambres régionales intéressées.
Article R711-38
Le projet de schéma directeur est adopté par l'assemblée générale de la chambre régionale de commerce et d'industrie, à la majorité des deux tiers de ses membres.
Article R711-39
Pour l'application du II de l'article 1600 du code général des impôts, le projet de schéma directeur, adopté dans les conditions prévues à l'article R. 711-38, est transmis, avec le rapport mentionné au troisième alinéa de l'article R. 711-35, au préfet de région.
Le préfet de région transmet le projet de schéma directeur et le rapport y afférent au ministre chargé de la tutelle des chambres de commerce et d'industrie, accompagné de son avis motivé au vu des critères prévus dans le décret.
Dans le cas où le ministre chargé de la tutelle des chambres de commerce et d'industrie estime que le schéma directeur ne satisfait pas aux conditions mentionnées aux articles R. 711-35 et R. 711-36, il fait part au préfet de région de son refus d'approuver le schéma en l'état pour que ce dernier demande à la chambre régionale de commerce et d'industrie d'en délibérer à nouveau dans un délai de quatre mois.
Le schéma directeur entre en vigueur à compter de la publication au Journal officiel de la République française de l'arrêté du ministre portant décision d'approbation.
Article R711-40
La révision du schéma directeur s'opère dans les mêmes conditions que celles prévues pour son adoption.
Article D711-41
Les schémas sectoriels mentionnés au 3° de l'article L. 711-8 indiquent l'implantation de tous les établissements, infrastructures, équipements et services gérés par une ou plusieurs chambres de commerce et d'industrie dans chaque région dans les domaines suivants :
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1° Gestion des équipements aéroportuaires et portuaires ;
2° Formation et enseignement ;
3° Aide à la création, à la transmission et au développement d'entreprises.
Ils peuvent également concerner d'autres secteurs, et en particulier les secteurs du développement international, de l'intelligence économique, de la recherche et de l'innovation.
Ils sont élaborés par les chambres régionales de commerce et d'industrie dans le respect du cahier des charges prévu au 1° de l'article L. 711-12 et en cohérence avec le schéma régional de développement économique, s'il a été adopté.
Chaque schéma sectoriel est accompagné d'un rapport justifiant les choix effectués au regard du schéma régional de développement économique. Ce rapport fait également apparaître les objectifs poursuivis dans les domaines susmentionnés ainsi que les moyens mis en oeuvre.
Article D711-41-1
Les chambres régionales de commerce et d'industrie veillent, lors de l'élaboration et de la révision des schémas sectoriels, au respect des normes d'intervention et des indicateurs définis par l'assemblée des chambres françaises de commerce et d'industrie en application de l'article D. 711-56-1.
Les schémas sectoriels peuvent définir des indicateurs supplémentaires au vu des particularités de la zone concernée.
Article D711-42
Les projets de schémas sectoriels sont transmis pour information par le président de la chambre régionale de commerce et d'industrie aux présidents des chambres de commerce et d'industrie situées dans sa circonscription territoriale ainsi qu'à l'assemblée des chambres françaises de commerce et d'industrie.
Dans un délai qui ne peut pas être inférieur à quinze jours après cette transmission, les schémas sectoriels sont adoptés par l'assemblée générale de la chambre régionale de commerce et d'industrie, dans les conditions fixées par le règlement intérieur de la chambre.
Article D711-43
Les schémas sectoriels sont révisés dans les mêmes conditions :
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1° A la demande du ministre chargé de la tutelle des chambres de commerce et d'industrie ou du préfet de région ;
2° A la demande de la majorité des membres des chambres de commerce et d'industrie composant la chambre régionale de commerce et d'industrie ;
3° A l'occasion de la création d'un nouveau secteur d'activités ou de la modification des conditions de la gestion d'un équipement portuaire ou aéroportuaire ;
4° A l'occasion de la modification par l'assemblée des chambres françaises de commerce et d'industrie du cahier des charges prévu au 1° de l'article L. 711-12, si le schéma sectoriel n'est pas conforme aux normes d'intervention issues de cette modification.
Article D711-44
Dans les départements d'outre-mer, les schémas sectoriels sont adoptés par les chambres de commerce et d'industrie conformément aux articles D. 711-41, D. 711-42, D. 711-43 et D. 711-56.
Pour l'application de ces articles, les mots : "chambre régionale de commerce et d'industrie" sont remplacés par les mots : "la ou les chambres de commerce et d'industrie" et les mots : "schéma régional d'aménagement et de développement du territoire" par les mots :
"schéma d'aménagement régional".
Toutefois, si un département d'outre-mer comprend plusieurs chambres de commerce et d'industrie, ces schémas sont adoptés, à la majorité des deux tiers, au cours d'une assemblée plénière exceptionnelle réunissant les membres des assemblées générales des chambres.
Article R711-45
Dans les départements d'outre-mer, les schémas directeurs sont adoptés par les chambres de commerce et d'industrie conformément aux dispositions des articles R. 711-35, R. 711-36, R. 711-39 et R. 711-40.
Pour l'application de ces articles, les mots : "chambre régionale de commerce et d'industrie" sont remplacés par les mots : "la ou les chambres de commerce et d'industrie" et les mots : "schéma régional d'aménagement et de développement du territoire" par les mots :
"schéma d'aménagement régional".
Toutefois, si un département d'outre-mer comprend plusieurs chambres de commerce et d'industrie, ces schémas sont adoptés, à la majorité des deux tiers, au cours d'une assemblée plénière
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exceptionnelle réunissant les membres des assemblées générales des chambres.
Sous-section 3 : De l'organisation et du fonctionnement.
Article R711-46
Toute chambre de commerce et d'industrie peut faire partie d'une chambre régionale de commerce et d'industrie dont la circonscription est limitrophe de la sienne, pour participer à une de ses activités spécifiques, sous réserve de lui verser une cotisation à cet effet et d'y être autorisée par le ministre chargé de la tutelle des chambres de commerce et d'industrie.
Cette chambre de commerce et d'industrie, qui est représentée par un de ses membres élus, n'a toutefois pas voix délibérative pour l'élection du bureau de la chambre régionale de commerce et d'industrie ni pour le vote de son budget.
Article R711-47
Un arrêté du préfet de région détermine le nombre des membres de la chambre régionale de commerce et d'industrie et le nombre des sièges attribués au sein de la chambre régionale à chacune des chambres incluses dans la circonscription de la chambre régionale dans les conditions suivantes :
a) Le nombre des membres de la chambre régionale de commerce et d'industrie est de 30 au minimum et de 60 au maximum. Ce nombre est déterminé sur proposition de la chambre régionale en tenant compte des bases de taxe professionnelle, du nombre des ressortissants et de l'effectif des salariés des ressortissants de chacune des chambres de commerce et d'industrie relevant de la chambre régionale et des bases de taxe professionnelle, du nombre des ressortissants et du nombre des salariés des ressortissants de l'ensemble de la chambre régionale.
b) Le nombre de sièges attribués, au sein de la chambre régionale, à chaque chambre de commerce et d'industrie est établi au prorata, arrondi à l'unité la plus proche, de la moyenne des rapports entre :
1° La somme des bases d'imposition à la taxe professionnelle des ressortissants de la chambre de commerce et d'industrie et la somme des bases d'imposition de l'ensemble des ressortissants des chambres composant la chambre régionale de commerce et d'industrie ;
2° Le nombre de ressortissants de la chambre de commerce et d'industrie et le nombre de l'ensemble des ressortissants des chambres composant la chambre régionale de commerce et d'industrie ;
3° Le nombre de salariés employés par les ressortissants de la chambre de commerce et d'industrie et le nombre de salariés employés par l'ensemble des ressortissants des chambres composant la chambre régionale de commerce et d'industrie.
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c) Aucune chambre de commerce et d'industrie ne peut disposer de moins de deux sièges dont l'un est occupé par son président.
d) Aucune chambre de commerce et d'industrie ne peut disposer de plus du tiers des sièges de la chambre régionale de commerce et d'industrie. Toutefois, lorsque le nombre de chambres incluses dans le ressort de la chambre régionale est inférieur ou égal à 4, ce plafond est porté à 45 %.
Article R711-48
La chambre régionale nomme parmi ses membres un président, un ou plusieurs vice-présidents, un secrétaire-trésorier ou un secrétaire et un trésorier qui constituent le bureau.
Ces membres sont élus pour cinq ans et rééligibles.
Article R711-49
Entre deux renouvellements, les vacances venant à se produire sont immédiatement comblées.
Si la moitié des sièges devient vacant le bureau est réélu dans sa totalité.
Article R711-50
Les chambres régionales de commerce et d'industrie s'adjoignent des membres associés, qui ont voix consultative et dont le nombre ne peut dépasser la moitié de celui des membres élus.
Ces membres associés sont, dans la limite du tiers du nombre des membres élus, des chefs d'entreprise et des cadres dirigeants de l'industrie, du commerce et des services désignés, parmi eux, par l'ensemble des membres associés de leur catégorie siégeant dans les chambres de commerce et d'industrie de la circonscription de la chambre régionale et, pour le reste, des personnalités choisies en raison de leur compétence en matière économique.
Un arrêté du préfet de région fixe le nombre total des membres associés et, en ce qui concerne le premier groupe défini à l'alinéa précédent, la répartition des sièges entre représentants des organisations patronales et représentants des cadres dirigeants.
Les membres associés sont installés dans leurs fonctions par le préfet de région au cours de la deuxième réunion de la chambre régionale.
Article R711-51
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Les chambres régionales de commerce et d'industrie sont renouvelées à la suite de chaque élection quinquennale des chambres de commerce et d'industrie.
Dans les quinze jours qui suivent l'installation de ses membres, chaque chambre de commerce et d'industrie désigne ses représentants à la chambre régionale de commerce et d'industrie suivant les modalités définies aux articles R. 711-46 et R. 711-47.
Ces désignations sont portées à la connaissance du préfet de région qui, dans les neuf semaines qui suivent le jour du scrutin prévu à l'article R. 713-6, procède à l'installation des nouveaux membres de la chambre régionale de commerce et d'industrie.
Article R711-52
La chambre régionale se réunit au moins tous les trois mois et, en outre, chaque fois qu'elle est convoquée par son président de sa propre initiative ou sur la demande du préfet de région.
Le président réunit également la chambre régionale toutes les fois qu'il est saisi d'une demande émanant du tiers de ses membres.
Les réunions de la chambre régionale peuvent se tenir au siège d'une chambre autre que celle désignée comme centre administratif de la chambre régionale de commerce et d'industrie.
Article R711-53
La circonscription de la chambre régionale de commerce et d'industrie de Provence-Alpes-Côte d'Azur-Corse correspond à celle des chambres de commerce et d'industrie d'Ajaccio, Arles, Avignon, Bastia, Digne, Gap, Marseille, Nice et Toulon.
Section 3 : De l'assemblée des chambres françaises de commerce et d'industrie.
Article R711-54
Les chambres de commerce et d'industrie de la métropole, des départements d'outre-mer, des collectivités d'outre-mer mentionnées à l'article 74 de la Constitution et de Nouvelle-Calédonie, les délégations départementales des chambres de commerce et d'industrie dont la circonscription s'étend à plusieurs départements ainsi que les chambres régionales de commerce et d'industrie sont réunies en une assemblée.
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Cette assemblée a la qualité d'établissement public. Elle a son siège à Paris.
Article R711-55
L'assemblée des chambres françaises de commerce et d'industrie effectue sur le plan national la synthèse des positions adoptées par les chambres de commerce et d'industrie et les chambres régionales.
Elle peut se voir confier la gestion de service à l'usage du commerce et de l'industrie lorsque cette gestion ne peut être convenablement assumée au plan régional ou local.
Article D711-56
L'assemblée des chambres françaises de commerce et d'industrie établit chaque année le tableau récapitulatif des schémas sectoriels mentionnés au 3° de l'article L. 711-8 et adoptés en les distinguant selon leur domaine d'application. Elle transmet ce document au ministre chargé de la tutelle des chambres de commerce et d'industrie.
Article D711-56-1
Les missions mentionnées à l'article D. 711-67-2 font l'objet de cahiers des charges élaborés par l'assemblée des chambres françaises de commerce et d'industrie en application du 1° de l'article L. 711-12.
Ces cahiers des charges fixent des normes d'intervention assorties d'indicateurs d'activité, de qualité et de performance et font l'objet d'un vote en assemblée générale de l'assemblée des chambres françaises de commerce et d'industrie.
Article D711-56-2
L'assemblée des chambres françaises de commerce et d'industrie peut également élaborer des guides de bonnes pratiques et proposer des indicateurs concernant les autres missions remplies par les établissements du réseau, notamment les missions consultatives, de formation initiale et continue ou les missions de gestion d'infrastructures, d'équipements ou de services.
Ces guides de bonnes pratiques font l'objet d'un vote en assemblée générale de l'assemblée des chambres françaises de commerce et d'industrie.
Article D711-56-3
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L'assemblée des chambres françaises de commerce et d'industrie s'assure du respect des normes d'intervention sur la base des relevés transmis par les chambres et les chambres régionales concernant leurs propres indicateurs, ainsi que des consolidations transmises par les chambres régionales.
Elle élabore à partir de ces relevés une synthèse nationale annuelle relative à l'application de ces normes par les établissements du réseau, qu'elle transmet au ministre chargé de la tutelle du réseau des chambres de commerce et d'industrie.
Elle examine chaque année en assemblée générale les résultats de cette synthèse.
Elle est en outre chargée, dans le cadre du respect de ces normes, de conseiller les établissements du réseau et peut diligenter, à cet effet, des missions d'expertise.
Article R711-57
Les chambres de commerce et d'industrie, les délégations départementales et les chambres régionales de commerce et d'industrie sont représentées à l'assemblée par leur président.
Lorsque le président de la chambre régionale est en même temps président d'une chambre de commerce et d'industrie, cette dernière désigne un second représentant parmi ses membres.
Les chambres de commerce et d'industrie, les délégations départementales et les chambres régionales de commerce et d'industrie désignent parmi leurs membres un suppléant appelé à remplacer le titulaire en cas d'empêchement.
Article R711-58
Dans le mois qui suit l'expiration du délai prévu pour l'installation des chambres régionales à la suite du renouvellement quinquennal, le président en exercice de l'assemblée convoque une première assemblée constitutive. Celle-ci se tient sous la présidence du doyen d'âge.
Elle procède en premier lieu à l'élection du président, du premier vice-président et des membres du bureau prévu à l'article R. 711-59 puis à la constitution du comité directeur prévu à l'article R. 711-60.
Tout membre titulaire ou suppléant empêché d'assister à la séance peut donner à un collègue de son choix pouvoir écrit de voter en son nom. Chaque mandataire ne peut recevoir plus d'une procuration.
Article R711-59
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Le bureau est composé de douze membres élus par l'assemblée générale, à savoir :
Un président et un premier vice-président, élus séparément par un vote distinct ;
Le président de la chambre de commerce et d'industrie de Paris, le président de la chambre régionale ou le président de l'une des trois délégations départementales qui en dépendent ;
Trois présidents de chambre régionale de commerce et d'industrie ;
Trois présidents représentant respectivement :
Les chambres de commerce et d'industrie comptant plus de 30 000 assujettis à la taxe professionnelle ;
Les chambres de commerce et d'industrie comptant entre 10 000 et 30 000 assujettis à la taxe professionnelle ;
Les chambres de commerce et d'industrie comptant moins de 10 000 assujettis à la taxe professionnelle ;
Trois présidents de chambre de commerce et d'industrie représentant respectivement :
La catégorie "commerce" ;
La catégorie "industrie" ;
La catégorie "services".
Le premier vice-président assiste le président pour toutes les questions de sa compétence. Deux vice-présidents, deux secrétaires et un trésorier sont désignés par le bureau parmi ses membres.
Les membres du bureau autres que ceux représentant la chambre de commerce et d'industrie de Paris, la chambre régionale ou les délégations départementales qui en dépendent, appartiennent au moins à 8 régions différentes.
Article R711-60
Le comité directeur se compose :
Des présidents des chambres régionales de commerce et d'industrie.
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Des membres du bureau non présidents de chambres régionales de commerce et d'industrie ;
Du président de la chambre de commerce et d'industrie de Paris, de l'un des présidents des trois délégations départementales qui en dépendent ;
Des présidents des commissions de l'assemblée désignées par le règlement intérieur, lorsqu'ils ne sont pas déjà membres du comité directeur au titre de l'une des dispositions précédentes.
Article R711-61
Le président préside les assemblées générales, le comité directeur et le bureau. En cas d'empêchement, il est suppléé par le premier vice-président ou, à défaut, par l'un des vice-présidents.
Il représente l'assemblée auprès des pouvoirs publics et dans tous les actes de la vie civile.
Article R711-62
L'assemblée se réunit en assemblée générale trois fois par an, aux dates fixées par décision du comité directeur.
L'assemblée se réunit en outre en assemblée générale extraordinaire soit à l'initiative du président, soit à la demande du ministre chargé de la tutelle des chambres de commerce et d'industrie ou du tiers des membres composant l'assemblée.
Article R711-63
Tout membre titulaire ou suppléant empêché d'assister à la séance peut donner à un collègue de son choix pouvoir écrit de voter en son nom. Chaque mandataire ne peut disposer que de pouvoirs émanant de représentants de chambre de commerce et d'industrie du ressort de la chambre régionale dont dépend sa propre chambre de commerce et d'industrie.
Article R711-64
L'assemblée générale ne peut délibérer valablement que si le nombre des membres présents ou représentés est au moins égal aux deux tiers des membres en exercice.
Dans l'hypothèse où le quorum ne serait pas atteint, le président de l'assemblée convoque dans le mois qui suit une nouvelle assemblée générale, qui peut valablement délibérer sans condition de
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quorum.
L'assemblée générale ne peut délibérer que sur les questions inscrites à l'ordre du jour. Les décisions sont prises à la majorité des membres présents ou représentés, sous réserve des dispositions des articles R. 711-58 et R. 712-14.
Article R711-65
Le comité directeur se réunit sur convocation du président au moins neuf fois par an.
Il se saisit de toutes les questions entrant dans la compétence de l'assemblée.
Il prépare, pour les soumettre à l'assemblée générale, les projets de budget et les comptes de l'assemblée.
Il établit aux mêmes fins un projet de règlement intérieur.
Il fixe l'ordre du jour et la date des assemblées générales.
Article R711-66
Le comité directeur ne peut délibérer valablement que si le nombre des membres présents ou représentés est au moins égal à la moitié des membres en exercice.
Les décisions sont prises à la majorité des membres présents ou représentés.
Tout membre titulaire ou suppléant empêché d'assister à la séance peut donner à un collègue de son choix pouvoir écrit de voter en son nom. Chaque mandataire ne peut recevoir plus d'une procuration.
Section 4 : Dispositions communes.
Article D711-67
Les établissements du réseau des chambres de commerce et d'industrie exercent leurs missions notamment de consultation, de représentation et de services aux entreprises, dans le respect de leurs compétences respectives conformément aux articles L. 710-1 et suivants.
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Article D711-67-1
Les missions de représentation des intérêts de l'industrie, du commerce et des services et de consultation exercées par les établissements du réseau des chambres de commerce et d'industrie relèvent de l'intérêt général.
Pour ce qui concerne les avis rendus au sein des commissions départementales d'équipement commercial, les représentants des établissements consulaires sont tenus au respect des conditions posées à l'article R. 751-7.
Article D711-67-2
Les missions obligatoires remplies par les établissements du réseau des chambres de commerce et d'industrie en vertu de dispositions législatives ou réglementaires et donnant lieu à des prestations et services rendus aux usagers sont exercées dans des conditions qui assurent notamment la continuité du service et sa qualité sur l'ensemble du territoire national, telles que définies par les normes d'intervention mentionnées à l'article D. 711-56-1.
Article D711-67-3
Sauf disposition législative ou réglementaire contraire, les missions visées à l'article D. 711-67-2 et qui constituent des missions de service public administratif sont exercées à titre gratuit.
Toutefois, les prestations supplémentaires excédant l'exécution normale de ces services obligatoires peuvent faire l'objet d'une rémunération, dans les conditions suivantes :
- la redevance est la contrepartie directe de la prestation ;
- elle ne doit pas dépasser le coût du service ;
- le contenu et la tarification de la prestation doivent être portés à la connaissance des usagers.
Article D711-67-4
Sous réserve de l'application de la loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés, et en liaison, le cas échéant, avec l'Institut national de la statistique et des études économiques, les chambres de commerce et d'industrie créent et tiennent à jour un fichier des entreprises de leur circonscription.
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Les chambres de commerce et d'industrie peuvent constituer des bases de données et d'informations économiques dans le cadre de leurs missions.
Ces fichiers et bases de données sont alimentés par les informations que les chambres recueillent, produisent, reproduisent, détiennent ou diffusent dans le cadre de leurs missions, notamment celle relative à la création et à la gestion des centres de formalités des entreprises.
Les autres établissements du réseau peuvent créer et tenir à jour de tels fichiers et constituer des bases de données et d'informations économiques.
Les chambres régionales assurent, en tant que de besoin, la coordination des fichiers d'entreprises, des bases de données et des informations économiques collectés par les chambres de commerce et d'industrie, notamment en vue de répondre, dans des délais raisonnables, aux questions des pouvoirs publics en application de l'article L. 711-7.
En application des articles L. 711-11 et L. 711-12, la coordination, en tant que de besoin, des fichiers d'entreprises, des bases de données et des informations économiques collectés par les établissements du réseau, en vue de synthèses nationales, est assurée sous la responsabilité de l'assemblée des chambres françaises de commerce et d'industrie, qui peut en déléguer la réalisation à un organisme émanant du réseau.
L'assemblée des chambres françaises de commerce et d'industrie tient ces synthèses à la disposition du ministre chargé de la tutelle du réseau des chambres de commerce et d'industrie.
Article D711-67-5
Les établissements du réseau des chambres de commerce et d'industrie peuvent être à l'initiative d'actions de mutualisation et conclure des conventions entre eux à l'effet notamment de partager des compétences ou de créer ou conserver à frais communs des services ou des ouvrages.
Dans l'hypothèse de conclusion d'une convention entre une chambre régionale de commerce et d'industrie et une chambre de commerce et d'industrie qui ne relève pas de sa circonscription, la chambre régionale de commerce et d'industrie dans le ressort de laquelle se trouve la chambre de commerce et d'industrie intéressée est informée.
Ces conventions peuvent, le cas échéant, associer des établissements du réseau des chambres de métiers et de l'artisanat et des chambres d'agriculture.
Article D711-67-6
Les établissements du réseau des chambres de commerce et d'industrie élaborent chaque année un rapport d'activité, qu'ils transmettent à l'autorité de tutelle.
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Article D711-67-7
Pour mettre en oeuvre les activités de développement et d'animation économiques mentionnées aux articles L. 711-4 et L. 711-10, les chambres de commerce et d'industrie et les chambres régionales de commerce et d'industrie peuvent recourir à des structures juridiques distinctes.
Sauf, le cas échéant, pour les services correspondant à une délégation de service public, elles doivent recourir à de telles structures lorsque le montant ou les conditions de l'opération envisagée excèdent manifestement les capacités financières de la chambre ou comportent des risques dont la réalisation compromettrait l'équilibre financier de l'établissement.
La chambre transmet la délibération autorisant le recours à une structure distincte à l'autorité de tutelle et sollicite, le cas échéant, les autorisations prévues par les dispositions en vigueur.
Article D711-67-8
L'autorité de tutelle peut demander à la chambre de commerce et d'industrie ou à la chambre régionale de commerce et d'industrie intéressée de recourir à une structure juridique distincte si elle estime que les conditions posées au deuxième alinéa de l'article D. 711-67-7 sont remplies.
Article R711-68
Les établissements du réseau des chambres de commerce et d'industrie adoptent un règlement intérieur relatif à leur organisation et à leur fonctionnement, qui fixe, entre autres dispositions :
1° Les conditions de fonctionnement de leurs différentes instances, en particulier l'assemblée générale, le comité directeur, le bureau, les délégations et les commissions, la périodicité de leurs réunions, les rapports avec les délégués consulaires, les membres associés et les conseillers techniques ainsi que l'organisation administrative des services ;
2° Le nombre maximal de mandats que peut exercer un membre ;
3° La durée minimale du mandat que doit avoir exercé un membre pour être président ou membre du bureau ;
4° La durée maximale de fonctions que peut exercer un président ou un membre du bureau, le règlement pouvant toutefois substituer à cette durée la fixation de limites d'âge ;
5° Les conditions dans lesquelles le président et le trésorier peuvent déléguer leur signature à d'autres membres élus et, le cas échéant, au directeur général ou, sur sa proposition, à d'autres
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agents permanents de la chambre ;
6° Les conditions dans lesquelles le directeur général de la chambre de commerce et d'industrie est habilité à représenter son président.
Les dispositions prévues aux 2°, 3° et 4° ci-dessus ne peuvent pas être modifiées dans l'année d'un renouvellement.
Les règlements intérieurs peuvent prévoir l'adoption de certaines délibérations par des majorités qualifiées.
Article R711-70
Les services des établissements du réseau des chambres de commerce et d'industrie sont dirigés par un directeur ou, si leur importance le justifie, par un directeur général, nommé, après consultation du bureau, par le président et placé sous son autorité. Le directeur et le directeur général sont ci-après dénommés directeurs.
Le directeur assiste les membres élus de la chambre dans l'exercice de leurs fonctions et assure, notamment, le secrétariat général du président, de l'assemblée générale, du bureau, des commissions et, en ce qui concerne l'assemblée des chambres françaises de commerce et d'industrie, du comité directeur. Il participe à la préparation de toutes les décisions de la chambre et a la charge de leur mise en oeuvre.
Après chaque élection, le président informe l'assemblée générale des attributions du directeur, telles qu'elles sont définies au présent article et au règlement intérieur de la chambre.
Article R711-71
Les chambres de commerce et d'industrie ne peuvent se réunir en assemblée générale que toutes catégories et sous-catégories professionnelles confondues.
Les chambres régionales de commerce et d'industrie, les chambres de commerce et d'industrie et les groupements interconsulaires ne peuvent valablement délibérer que si le nombre des membres présents dépasse la moitié du nombre des membres en exercice.
Lorsque ce nombre n'est pas atteint, il est procédé à une nouvelle convocation de l'assemblée générale. Lors de la deuxième réunion, la délibération est valable si le nombre des membres atteint le tiers du nombre des membres en exercice.
Les délibérations sont prises à la majorité absolue des votants. En cas de partage égal des voix, celle du président est prépondérante.
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Article R711-72
L'élection du bureau a lieu au premier et au deuxième tour à la majorité absolue des membres en exercice. Au troisième tour, la majorité relative suffit. En cas de partage égal des voix, le candidat le plus âgé est élu. Le vote par procuration est admis mais chaque membre ne peut disposer que d'une procuration.
Article R711-73
Les membres sortants siègent jusqu'à l'installation de leurs successeurs.
Toutefois, à compter du jour de l'élection et jusqu'à celui de l'installation des nouveaux membres, la chambre ne peut se réunir que pour expédier les affaires courantes.
Article R711-74
Les établissements du réseau des chambres de commerce et d'industrie peuvent transiger dans les conditions prévues aux articles 2044 à 2058 du code civil. Les transactions sont conclues par l'autorité compétente pour conclure les contrats aux termes du règlement intérieur mentionné à l'article R. 711-68. Ce règlement précise les cas où, notamment du fait de leur faible montant ou de la confidentialité des matières sur lesquelles elles portent, ces transactions sont autorisées par le bureau de l'établissement.
Article R711-74-1
Le projet de transaction est soumis à l'approbation de l'autorité de tutelle compétente en application de l'article R. 712-2 au-delà d'un seuil fixé par le ministre chargé de la tutelle des chambres de commerce et d'industrie. Il est réputé approuvé si une décision contraire motivée de l'autorité de tutelle mentionnée au premier alinéa n'a pas été notifiée au président dans le délai de trente jours courant à compter de sa réception.
Article D711-75
Les établissements du réseau des chambres de commerce et d'industrie peuvent par clause compromissoire ou par compromis soumettre à arbitrage tout litige né d'un contrat qu'ils ont conclu et les opposant à l'un de leurs cocontractants.
Article R711-75-1
La clause compromissoire et le compromis sont conclus par écrit par l'autorité de l'établissement
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compétente pour passer le contrat qui en fait l'objet en application du règlement intérieur de l'établissement. Ce règlement définit l'autorité compétente pour prendre les mesures d'exécution de la sentence arbitrale.
Article D711-75-2
La clause compromissoire ou le compromis désigne le ou les arbitres ou définit les modalités de choix du ou des arbitres, qui doivent garantir l'impartialité de ceux-ci, les modalités de leur rémunération, les délais dans lesquels le tribunal arbitral doit statuer et les conditions de publication de la sentence arbitrale.
Article R711-75-3
Les contrats comprenant des clauses compromissoires et les compromis conclus par les établissements du réseau sont communiqués à l'autorité de tutelle compétente en application de l'article R. 712-2. Le cas échéant, cette autorité est informée des résultats de leur mise en oeuvre dans les deux mois de l'adoption de la sentence arbitrale.
Chapitre II : De l'administration des établissements du réseau des chambres de commerce et d'industrie.
Article R712-1
Les fonctions des membres des établissements du réseau des chambres de commerce et d'industrie sont gratuites.
Toutefois, cette gratuité ne fait pas obstacle à l'attribution d'indemnités ou de remboursements de frais dont la liste et le montant sont fixés par arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie.
Une indemnité globale pour frais de mandat peut, en outre, être attribuée au bureau par l'assemblée générale, selon un barème fixé par arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie. Ce barème tient compte de l'importance des établissements du réseau, déterminée selon le nombre de leurs ressortissants, et de la valeur du point d'indice prévu par le statut du personnel administratif des chambres de commerce et d'industrie.
Section 1 : Des modalités de la tutelle.
Article R712-2
1° La tutelle administrative et financière de l'Etat sur l'Assemblée des chambres françaises de
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commerce et d'industrie est exercée par le ministre chargé de la tutelle des chambres de commerce et d'industrie ;
2° La tutelle des chambres régionales de commerce et d'industrie est assurée par le préfet de région, assisté par le trésorier-payeur général de région. Lorsque le ressort territorial de la chambre régionale de commerce et d'industrie excède les limites de la circonscription administrative régionale, le préfet de région compétent est celui du siège de l'établissement public ;
3° La tutelle des groupements interconsulaires est assurée par le préfet du département où se situe le siège du groupement, assisté du trésorier-payeur général correspondant.
Dans le cas où le groupement interconsulaire associe des chambres de commerce et d'industrie appartenant à des départements différents, la tutelle est assurée par le préfet du département où se situe le siège du groupement, assisté du trésorier-payeur général correspondant.
En Ile-de-France, le préfet de la région Ile-de-France est assisté par le receveur général des finances, trésorier-payeur général de la région d'Ile-de-France ;
4° La tutelle des chambres de commerce et d'industrie est exercée par le préfet assisté par le trésorier-payeur général.
Le préfet compétent est celui du siège de l'établissement public.
Lorsque le ressort territorial de la chambre de commerce et d'industrie dépasse le cadre de la circonscription administrative départementale, le préfet compétent est celui du siège de l'établissement public.
Par dérogation aux dispositions qui précèdent, la tutelle de la chambre de commerce et d'industrie de Paris est exercée par le préfet de la région d'Ile-de-France, assisté par le receveur général des finances, trésorier-payeur général de la région Ile-de-France.
Article R712-3
L'autorité de tutelle a accès de droit à toutes les séances des assemblées générales des établissements du réseau des chambres de commerce et d'industrie et du comité directeur de l'Assemblée des chambres françaises de commerce et d'industrie. Elle peut se faire représenter.
Ces établissements informent l'autorité de tutelle des séances de leurs assemblées générales et du comité directeur dans les mêmes conditions et délais que ceux fixés pour les membres par le règlement intérieur de l'établissement.
L'autorité de tutelle peut faire ajouter un ou plusieurs sujets à l'ordre du jour de ces instances.
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Article R712-4
1° Lorsqu'un membre d'un établissement du réseau refuse d'exercer tout ou partie des fonctions liées à son mandat ou fixées par le règlement intérieur de l'établissement, ou s'abstient, sans motif légitime, d'assister aux assemblées de l'établissement pendant douze mois consécutifs, l'autorité de tutelle lui adresse une mise en demeure de se conformer à ses obligations.
Si l'intéressé ne défère pas à cette demande dans les deux mois suivant sa notification, cette autorité peut, en application de l'article L. 712-9, prononcer sa suspension ou le démettre d'office de ses fonctions, après l'avoir mis à même de faire valoir ses observations ;
2° La décision de suspension ou de démission d'un membre d'un établissement du réseau pour faute grave est prononcée, en application de l'article L. 712-9, par l'autorité de tutelle après que celle-ci a avisé l'intéressé de la possibilité de se faire assister d'un conseil et l'a mis à même de faire valoir ses observations dans le délai d'un mois.
Article R712-5
La décision de suspension ou de dissolution des instances d'un établissement du réseau est prise en application de l'article L. 712-9 par arrêté de l'autorité de tutelle.
Cet arrêté précise la composition de la commission provisoire chargée d'expédier les affaires courantes jusqu'à la fin de la suspension ou, en cas de dissolution, dans l'attente de nouvelles élections. Cette commission est composée de trois à neuf présidents ou anciens présidents de chambre régionale de commerce et d'industrie et de chambre de commerce et d'industrie pour ce qui concerne l'Assemblée des chambres françaises de commerce et d'industrie, trois à neuf présidents ou anciens présidents de chambre du ressort de la chambre régionale pour ce qui concerne ces chambres régionales, trois à neuf membres désignés parmi les membres ou anciens membres pour ce qui concerne les chambres de commerce et d'industrie et trois à neuf membres désignés parmi les chambres participant au groupement en ce qui concerne les groupements interconsulaires.
Article R712-6
Le règlement intérieur des établissements du réseau est exécutoire lorsqu'il a été homologué par l'autorité de tutelle.
Le refus d'homologation opposé à certaines dispositions du règlement intérieur ne fait pas obstacle à l'entrée en vigueur des autres dispositions de ce règlement.
Article R712-7
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Les délibérations relatives aux actes mentionnés ci-après sont exécutoires dès qu'elles ont été approuvées par l'autorité de tutelle :
1° Le budget primitif, les budgets rectificatifs et le budget exécuté, dans les conditions prévues à l'article R. 712-16 ;
2° Le recours à l'emprunt, au crédit-bail immobilier et à l'émission d'obligations, dans les conditions prévues à la section 3 ;
3° L'octroi de garanties à des tiers, dans les conditions prévues à l'article R. 712-34 ;
4° Les projets de conventions, d'avenants et de renouvellement de conventions par lesquelles l'établissement reçoit délégation de la gestion de services ou d'équipements publics ;
5° Les cessions, prises ou extensions de participation financière dans des sociétés civiles ou commerciales, ainsi que dans les syndicats mixtes ou groupements d'intérêt public ;
6° Les délibérations relatives aux aides ou projets d'aides à une ou plusieurs entreprises soumises au contrôle des aides en application de la législation communautaire ;
7° Les conventions définissant les modalités de transfert de la gestion ou de l'exploitation d'un établissement, ouvrage ou service géré par une chambre de commerce et d'industrie à une chambre régionale de commerce et d'industrie lorsque son importance excède les moyens financiers de l'établissement gestionnaire.
Toutefois, les délibérations relatives aux 2° et 3° portant sur un montant inférieur à un seuil fixé par arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie et du ministre des finances ne sont pas soumises à approbation.
Article R712-8
Les décisions mentionnées aux articles R. 712-6 et R. 712-7 sont approuvées tacitement à l'expiration d'un délai de deux mois à compter de la date de réception par l'autorité de tutelle de la délibération les adoptant et des documents correspondants, à défaut d'approbation expresse ou d'opposition notifiée à l'établissement pendant ce délai. Les décisions de refus sont motivées.
Lorsque l'autorité de tutelle demande par écrit à l'établissement des informations ou documents complémentaires, ou saisit la mission économique et financière d'une demande d'expertise, le délai mentionné à l'alinéa précédent est suspendu jusqu'à la production de ces informations ou documents ou de cette expertise. Dans le cas des conventions de délégation de service public en matière aéroportuaire ou portuaire, ce délai est également suspendu, lorsque l'avis du délégant ou du comité des investissements à caractère économique et social est requis, jusqu'à ce que cet avis soit rendu.
En ce qui concerne les délibérations décidant des aides ou régimes d'aides aux entreprises, dans le
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cas où le régime d'aides ou le projet d'aide doit être notifié à la Commission européenne, le délai d'approbation de la délibération est suspendu jusqu'à la date de réception par l'autorité de tutelle de la décision des autorités communautaires.
Article R712-8-1
La chambre ayant accordé une aide à une entreprise est tenue de procéder sans délai à sa récupération si une décision de la Commission européenne ou un arrêt de la Cour de justice des Communautés européennes l'y enjoint, à titre provisoire ou définitif. A défaut, après une mise en demeure restée sans effet dans un délai d'un mois à compter de sa notification, le préfet y procède d'office par tout moyen auprès du bénéficiaire de l'aide.
Article R712-9
L'autorité de tutelle procède aux constats prévus à l'article L. 712-4 et au II de l'article 1600 du code général des impôts.
Article R712-10
Dans les cas mentionnés aux alinéas ci-dessous, l'autorité de tutelle peut mettre en place une tutelle renforcée, après avoir demandé préalablement à l'établissement de prendre, dans un délai qu'elle fixe, les mesures correctrices nécessaires :
1° Lorsqu'il est constaté au cours de deux exercices budgétaires consécutifs que le résultat net ou le résultat d'exploitation ou le fonds de roulement sont négatifs, ou que les ratios mesurant la rentabilité ou la capacité d'autofinancement sont insuffisants ;
2° Lorsque les risques supportés par l'établissement sont excessifs ;
3° Lorsqu'il ressort des résultats d'un audit que l'insuffisante évaluation des charges nécessite de prendre des mesures de gestion correctrices ;
4° Lorsque le ou les commissaires aux comptes ont refusé de certifier les comptes ;
5° Lorsque est constaté un dysfonctionnement grave dans l'exercice d'une mission de service public de l'établissement.
Dans ce cas, l'autorité de tutelle institue un suivi renforcé de la gestion de l'établissement et en informe le ministre chargé de la tutelle des chambres de commerce et d'industrie. Elle lui rend compte régulièrement de l'évolution de sa situation et l'informe de sa décision de mettre fin à la
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tutelle renforcée, lorsqu'elle estime remplies les conditions du retour à l'équilibre.
Article R712-11
Dans le cadre de la tutelle renforcée et sans préjudice des dispositions des articles R. 712-6, R. 712-7 et R. 712-8, les décisions suivantes ne sont exécutoires que lorsqu'elles sont approuvées par l'autorité de tutelle :
1° La décision définissant le mandat du ou des commissaires aux comptes et de leurs suppléants ;
2° Les délibérations portant acquisition, construction, aliénation ou échange d'immeubles ou décidant d'un bail de plus de dix-huit ans ;
3° La délibération d'abondement du budget d'une chambre de commerce et d'industrie prévue à l'article L. 712-5 par une chambre régionale de commerce et d'industrie ;
4° Les délibérations relatives aux marchés publics passés selon les procédures du code des marchés publics ;
5° Les décisions relatives aux recrutements et aux licenciements.
Les délibérations mentionnées à l'article R. 712-7 sont soumises à approbation quel que soit le montant sur lequel elles portent.
Dans le cadre de la tutelle renforcée, l'avis rendu, en application de l'article 2 du décret n° 2003-1156 du 28 novembre 2003 sur les transactions avec l'Etat sur les engagements financiers des chambres en matière de services aéroportuaires, est un avis conforme.
Section 2 : Des règles budgétaires.
Sous-section 1 : Dispositions communes.
Article R712-12
Les règles essentielles de l'organisation et des procédures financières, budgétaires et comptables applicables aux établissements du réseau des chambres de commerce et d'industrie sont conformes aux prescriptions fixées par arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie.
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Article R712-13
Le président de l'établissement est chargé de l'exécution du budget. Il émet, à destination du trésorier, les titres de perception des recettes et des produits, ainsi que les mandats des dépenses et des charges, préalablement à leur encaissement ou à leur paiement.
Le trésorier est chargé de la tenue de la comptabilité, de l'exécution des opérations de dépenses et de recettes, ainsi que de la gestion de la trésorerie. Il est assisté en tant que de besoin par les services comptables et les régies mentionnées au dernier alinéa.
Les délégations de signature du président et du trésorier respectent la règle de séparation de leurs compétences respectives.
Des régies, limitées dans leur objet et leur montant, peuvent être instituées par le président, avec l'accord du trésorier, en ce qui concerne les recettes et les dépenses de faible importance, urgentes ou répétitives.
Article R712-14
L'assemblée générale de chaque établissement vote chaque année un budget primitif qui satisfait aux principes généraux applicables aux budgets des établissements publics à caractère administratif, sous réserve des adaptations prévues par le présent titre pour tenir compte des caractères spécifiques des établissements du réseau des chambres de commerce et d'industrie.
Article R712-15
Le budget est un document unique comprenant l'ensemble des comptes retraçant les activités exercées directement par l'établissement et celles dont il contrôle l'exercice par l'intermédiaire de personnes dépendant de lui. Ce caractère unique ne fait pas obstacle à ce que le budget comprenne, dans les conditions fixées par arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie, des regroupements ou des subdivisions, sous forme de sections comptables ou autres, destinées à individualiser certaines activités, notamment économiques.
Le budget primitif peut faire l'objet, en cas de nécessité, de budgets rectificatifs.
A l'issue de chaque exercice, l'assemblée générale vote, d'une part, un budget exécuté, qui retrace les conditions dans lesquelles le budget primitif et les budgets rectificatifs ont été exécutés, et, d'autre part, un bilan, un compte de résultat et une annexe établis dans les conditions prévues à l'article R. 612-2 applicable aux personnes morales de droit privé non commerçantes ayant une activité économique.
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Le plan comptable applicable aux documents mentionnés ci-dessus est fixé par arrêté conjoint du ministre chargé de la tutelle des chambres de commerce et d'industrie, du garde des sceaux, ministre de la justice, et du ministre chargé du budget.
Article R712-16
1° La transmission de la délibération adoptant le budget primitif, les budgets rectificatifs et le budget exécuté est accompagnée du rapport transmis à l'assemblée générale par le ou les commissaires aux comptes, d'un rapport portant sur l'évolution de la masse salariale, des informations relatives à l'emploi de la taxe additionnelle à la taxe professionnelle, du tableau d'amortissement des emprunts contractés par l'établissement, d'un état prévisionnel des contributions au fonctionnement des organismes autres que les sociétés civiles ou commerciales pour les budgets primitifs ou rectificatifs, d'un bilan de ces mêmes contributions pour le budget exécuté, ainsi que des décisions juridictionnelles rendues à l'encontre de l'établissement et des réponses des établissements aux demandes des chambres régionales des comptes suite à leur inspection, et, le cas échéant, du programme pluriannuel d'investissement. Ces documents sont complétés en tant que de besoin par la transmission d'éléments complémentaires dans les conditions prévues par arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie ;
2° Lorsque l'établissement gère une délégation de service public en matière portuaire ou aéroportuaire, l'autorité de tutelle sollicite l'avis préalable du délégant sur la partie du budget concernant le service aéroportuaire ou portuaire.
Article R712-17
En cas de refus du budget primitif, l'établissement délibère dans les deux mois sur un nouveau budget, en tenant compte des observations de l'autorité de tutelle.
Article R712-18
Dans le cas où le projet de budget primitif de l'établissement n'est pas approuvé avant le 1er janvier de l'exercice auquel il s'applique, son président peut :
1° Jusqu'à l'approbation du budget de l'établissement, mettre en recouvrement les recettes et engager, liquider et mandater les dépenses de la section de fonctionnement dans la limite de celles inscrites au budget primitif ou, le cas échéant, dans les budgets rectificatifs de l'année précédente ;
2° Mandater les dépenses afférentes au remboursement en capital des annuités de la dette venant à échéance avant l'approbation du budget ;
3° Jusqu'à l'approbation du budget, si celle-ci intervient avant le 31 mars, et après délibération de l'assemblée générale, engager, liquider et mandater les dépenses d'investissement, dans la limite du
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quart des crédits ouverts au budget de l'exercice précédent, non compris les crédits afférents au remboursement de la dette ;
4° Au-delà du 31 mars et jusqu'à l'approbation du budget, si l'autorité de tutelle l'autorise et par délibération de l'assemblée générale, engager, liquider et mandater les dépenses d'investissement, non compris les crédits afférents au remboursement de la dette. L'autorisation mentionnée ci-dessus précise le montant et l'affectation des crédits.
Les crédits mentionnés aux 1°, 2°, 3° et 4° sont inscrits au budget lors de son adoption. Le trésorier paye les mandats et recouvre les titres de recettes émis dans les conditions ci-dessus.
Article R712-19
Les comptes des établissements du réseau des chambres de commerce et d'industrie sont établis en application des règlements du comité de réglementation comptable.
Ces établissements présentent une comptabilité analytique dans des conditions fixées par un arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie et du ministre chargé du budget.
Article R712-20
Les crédits inscrits au budget des établissements ont un caractère limitatif, sous réserve des aménagements à cette règle résultant d'un arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie pour tenir compte de leurs besoins spécifiques, notamment en matière industrielle et commerciale, ou pour faire face à des dépenses obligatoires.
Sous-section 2 : Dispositions applicables aux chambres régionales.
Article R712-21
Les dépenses nécessaires au fonctionnement de la chambre régionale de commerce et d'industrie et à l'exploitation des divers établissements et services qu'elle administre peuvent être inscrites d'office à son budget général ou à ses budgets spéciaux par le préfet de région.
Les dépenses générales annuelles de la chambre régionale de commerce et d'industrie sont financées tout d'abord par ses ressources propres. Un complément est demandé, sous forme de contribution, à chacune des chambres de commerce et d'industrie constituant la chambre régionale de commerce et d'industrie. Les parts contributives sont fixées au prorata des bases de la taxe professionnelle retenues dans les rôles généraux de l'année 2001 pour l'établissement de la taxe additionnelle à la taxe professionnelle prévue à l'article 1600 du code général des impôts.
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Article R712-22
Les chambres de commerce et d'industrie constituant la chambre régionale de commerce et d'industrie sont autorisées par voie d'approbation du budget de la chambre régionale de commerce et d'industrie ou par décision particulière du préfet, à prévoir dans leur budget annuel un crédit spécial représentant leur part contributive aux dépenses de la chambre régionale de commerce et d'industrie.
Cette part contributive est ouverte soit au moyen de disponibilités du budget ou du fonds de réserve, soit à l'aide de l'imposition additionnelle à la taxe professionnelle qu'elles perçoivent.
Il est produit, à l'appui du budget de la chambre régionale de commerce et d'industrie, un état certifié par le président de la chambre régionale et indiquant :
a) Par chambre de commerce et d'industrie, le montant total des bases de la taxe professionnelle retenues dans les rôles généraux de l'année 2001 comme base de la taxe additionnelle à la taxe professionnelle prévue à l'article 1600 du code général des impôts, pour l'ensemble des communes de la circonscription ;
b) La répartition effectuée entre les diverses chambres de commerce au titre de l'exercice budgétaire concerné de la somme complémentaire nécessaire au règlement des dépenses de la chambre régionale de commerce et d'industrie compte tenu des ressources propres de cette dernière.
Dès réception du budget de la chambre régionale de commerce et d'industrie approuvé, le président de la chambre régionale notifie aux chambres de commerce le montant de leur contribution, qui doit figurer sur leur projet de budget respectif.
Article R712-23
Les parts contributives fixées conformément aux articles R. 712-21 et R. 712-23 constituent pour les chambres de commerce et d'industrie des dépenses obligatoires.
Sous-section 3 : Dispositions applicables aux groupements interconsulaires.
Article R712-24
Les ressources du groupement interconsulaire proviennent des contributions des chambres de commerce et d'industrie participantes, de subventions et de recettes diverses. Les modalités de
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calcul et de répartition des contributions des chambres de commerce et d'industrie sont arrêtées par le préfet, sur proposition du groupement.
Les chambres de commerce et d'industrie et les chambres régionales de commerce et d'industrie constituant le groupement interconsulaire inscrivent dans leur budget annuel un montant représentant leur part contributive aux dépenses du groupement. Cette dépense constitue pour ces établissements une dépense obligatoire.
Cette inscription est approuvée par l'autorité de tutelle, soit lors de l'approbation du budget des chambres intéressées, soit lors de l'approbation du budget du groupement interconsulaire.
Les dépenses nécessaires au fonctionnement du groupement et à l'exploitation des établissements et services que le groupement interconsulaire administre peuvent être inscrites d'office à son budget par l'autorité de tutelle.
Sous-section 4 : Dispositions applicables à l'Assemblée des chambres françaises de commerce et d'industrie.
Article R712-25
Les ressources de l'assemblée proviennent de contributions des chambres de commerce et d'industrie et des chambres régionales, de subventions et de recettes diverses. Les modalités de calcul et de répartition des contributions des chambres de commerce et d'industrie et des chambres régionales sont arrêtées par le ministre chargé de la tutelle des chambres de commerce et d'industrie, sur proposition de l'assemblée. Ces contributions constituent une dépense obligatoire pour les établissements qui composent l'assemblée.
Article R712-26
Les projets de budgets, ainsi que les comptes, sont arrêtés par l'assemblée générale, à la majorité des deux tiers de ses membres, puis soumis à l'approbation du ministre chargé de la tutelle des chambres de commerce et d'industrie.
Section 3 : Des emprunts souscrits et des garanties accordées par les établissements du réseau.
Article R712-27
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Les établissements du réseau peuvent être autorisés à contracter des emprunts pour subvenir ou concourir aux dépenses résultant de leurs actions dans tous les domaines où s'exercent leurs attributions, à l'exception de leurs dépenses de fonctionnement. Ils font face au service des emprunts au moyen de l'ensemble des ressources dont ils disposent en vertu de l'article L. 710-1 du code de commerce.
La transmission à l'autorité de tutelle de la délibération adoptant un projet d'emprunt est accompagnée des documents et informations prévus par un arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie.
Article R712-28
Les établissements du réseau peuvent, sous réserve de l'approbation de l'autorité de tutelle, se concerter en vue de créer, subventionner et faire fonctionner des établissements, services ou travaux d'intérêt commun.
Ils peuvent, à cet effet, dans les conditions prévues à l'article R. 712-27, contracter des emprunts collectifs dont la charge est répartie entre les établissements participants.
Les décisions relatives à la création, au fonctionnement et au financement de ces établissements ou services communs ne sont exécutoires qu'après décision de l'ensemble des établissements participants et autorisation de l'autorité de tutelle.
Article R712-29
Pour les emprunts concernant les services ou les équipements aéroportuaires et portuaires délégués aux établissements du réseau, l'autorisation est accordée après avis du délégant et, dans les cas prévus par le décret n° 96-1022 du 27 novembre 1996, dans la limite du montant autorisé par le Comité des investissements à caractère économique et social.
Article R712-30
Sous réserve des emprunts dont le montant est inférieur au seuil mentionné au dernier alinéa de l'article R. 712-7, l'autorisation d'emprunt est donnée dans les formes prévues à l'article R. 712-8. La simple inscription au budget de l'établissement du produit d'un emprunt n'autorise pas la compagnie consulaire à contracter cet emprunt, même après approbation explicite ou implicite de ce budget par l'autorité compétente.
Article R712-31
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L'autorisation d'emprunt est accordée pour une durée d'un an à compter de la date d'approbation. A l'issue de ce délai, si l'emprunt n'a pas été contracté, la demande d'approbation doit être renouvelée. Toutefois, lorsque l'emprunt concerne une concession portuaire ou aéroportuaire, le délai est porté au 31 décembre de la deuxième année suivant celle de l'approbation.
L'autorisation peut prévoir la mobilisation échelonnée de l'emprunt sur plus d'un an, par tranches successives, lorsque les travaux doivent être réalisés par étapes.
Article R712-32
Les emprunts sont réalisés dans les conditions du marché et dans le respect des règles de la commande publique en vigueur ou sous forme de souscription publique avec faculté d'émettre des obligations au porteur ou des obligations transmissibles par endossement.
Les contrats d'emprunts doivent toujours stipuler la faculté de rembourser par anticipation ou de renégocier l'emprunt.
Article R712-33
Les règles prévues aux articles R. 712-27 et R. 712-29 sont applicables aux émissions par un établissement du réseau d'obligations ou à la conclusion d'un contrat de crédit-bail immobilier.
Article R712-34
L'octroi par un établissement du réseau des garanties mentionnées au 3° de l'article R. 712-7 est soumis aux règles suivantes :
1° L'octroi de garantie s'entend de l'octroi de garanties d'emprunts ou de cautionnements accordés à des personnes physiques ou morales de droit privé ou public ;
2° La transmission de la délibération adoptant un projet d'octroi de garantie à un tiers est accompagnée des documents et informations précisant l'objet de la garantie, le statut du tiers bénéficiaire, son objet social et, le cas échéant, les éventuelles autres garanties dont il a pu faire l'objet de la part de l'établissement du réseau au cours des cinq dernières années ;
3° Dans le cas où l'octroi de la garantie entre dans le champ du contrôle des aides publiques par la législation communautaire, le projet est notifié à la Commission européenne à l'initiative de l'autorité de tutelle. Dans ce cas, le délai d'approbation fixé à l'article R. 712-8 est suspendu jusqu'à la réception de la décision des autorités communautaires. En cas de décision négative, le refus d'approbation notifié au président de l'établissement est accompagné de la décision de la Commission européenne.
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Section 4 : Des équipements et services gérés par les établissements du réseau dans le cadre de délégations de services publics.
Article R712-35
La transmission à l'autorité de tutelle des délibérations relatives aux conventions de délégation est accompagnée :
1° Des perspectives pluriannuelles d'exploitation faisant notamment apparaître les conditions de l'équilibre de cette exploitation ;
2° Du programme pluriannuel d'investissement ;
3° D'indicateurs en matière de ratios prudentiels d'endettement et de niveau du fond de roulement du délégataire permettant d'évaluer sa capacité à assurer le fonctionnement régulier de l'exploitation.
Article R712-36
1° A compter de la conclusion d'une convention de délégation de service public leur confiant la gestion d'un service ou d'un équipement public, les établissements du réseau ne peuvent pas utiliser le produit de la taxe additionnelle à la taxe professionnelle ou des ressources provenant de leurs autres activités pour assurer l'équilibre de cette gestion.
Toutefois cette interdiction ne s'applique pas :
- aux flux de trésorerie intervenant à l'intérieur d'un même exercice budgétaire dès lors que le solde de ces flux en fin d'année est nul ;
- aux avances consenties par l'établissement délégataire dans le cadre d'une convention prévoyant l'ensemble des mesures à prendre par l'établissement, l'autorité de tutelle et, le cas échéant, l'autorité concédante pour rétablir l'équilibre de l'exploitation déléguée d'un service ou d'un équipement public devenu structurellement déficitaire.
Cette convention doit être autorisée de manière expresse par l'autorité de tutelle ; elle fixe le plafond et les conditions de ces avances, qui ne peuvent excéder une durée de deux ans. Cette convention peut être renouvelée pour une nouvelle période de deux ans sous réserve de l'autorisation expresse de l'autorité de tutelle ;
2° Lorsque l'exploitation déléguée d'un service ou d'un équipement public devient déficitaire du fait de l'établissement concessionnaire, les mesures correctrices sont prises dans le cadre de la tutelle
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renforcée ;
3° L'établissement transmet annuellement à l'autorité de tutelle un état de l'ensemble des transferts financiers réalisés entre les ressources propres de l'établissement et la concession.
Article R712-37
L'autorité de tutelle consulte, en tant que de besoin, les collectivités territoriales ou leurs groupements concédants, les services déconcentrés compétents, la chambre régionale de commerce et d'industrie et les chambres de commerce et d'industrie concernées ainsi que des experts indépendants sur les risques financiers consécutifs à ces investissements encourus par les établissements du réseau des chambres de commerce et d'industrie du fait des délégations de service public qui leur sont confiées ou des participations qu'ils détiennent dans des sociétés qui ont pour objet l'exploitation et la gestion de tout ou partie de l'équipement concerné.
Chapitre III : De l'élection des membres des chambres de commerce et d'industrie et des délégués consulaires
Section 1 : De l'élection des membres des chambres de commerce et d'industrie
Sous-section 1 : De l'établissement des listes électorales.
Article R713-1
En vue de l'établissement de la liste électorale de ses membres, la chambre de commerce et d'industrie envoie aux entreprises inscrites au registre du commerce et des sociétés de son ressort, avant le dernier jour de février de l'année du renouvellement, par courrier ou par voie électronique, un questionnaire en vue de l'identification ou de la désignation des électeurs définis aux articles L. 713-1 à L. 713-3.
Les questionnaires sont renvoyés par courrier ou par voie électronique à la chambre de commerce et d'industrie au plus tard le 31 mai de la même année.
Le juge commis à la surveillance du registre du commerce et des sociétés, assisté du greffier de la juridiction mentionnée à l'article R. 713-70, fournit au plus tard le 31 mars à la chambre de commerce et d'industrie la liste des personnes physiques et morales définies à l'article L. 713-1 et immatriculées au registre du commerce et des sociétés.
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La commission d'établissement des listes électorales prévue à l'article L. 713-14 procède à la révision des listes électorales qui sont arrêtées au 30 juin.
Les listes électorales sont dressées par catégorie et, le cas échéant, sous-catégorie professionnelle et transmises au préfet au plus tard le 31 juillet.
Article R713-2
Le préfet met à la disposition du public, du 1er août au 1er septembre inclus, dans chaque greffe de juridiction de première instance compétente en matière commerciale dans la circonscription de la chambre, à la chambre de commerce et d'industrie et à la préfecture, un exemplaire des listes électorales.
Le préfet informe les électeurs du dépôt des listes électorales et des lieux et modalités de leur consultation, par voie d'affiches apposées à la préfecture du siège de la chambre de commerce et d'industrie, au siège de la chambre et, le cas échéant, par tout autre moyen.
Lorsque la consultation des listes électorales par voie électronique est prévue, elle s'effectue dans des conditions de sécurité et de confidentialité assurant le respect du code électoral.
Tout électeur est autorisé à prendre communication des listes électorales et à en prendre copie à ses frais auprès de la chambre de commerce et d'industrie.
Article R713-3
Les modalités de paiement au greffier de la prestation prévue au troisième alinéa de l'article R. 713-1 sont fixées par arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie.
Article R713-4
Tout électeur peut présenter, pendant la période de publicité des listes électorales prévue à l'article R. 713-2, une réclamation à la commission d'établissement des listes électorales.
Les réclamations sont déposées au secrétariat de la commission.
La commission d'établissement des listes électorales statue sur les réclamations ainsi que sur les éléments nouveaux apparus entre le 30 juin et le 31 juillet qui lui sont signalés par le préfet, le juge commis à la surveillance du registre du commerce et des sociétés ou le greffier de la juridiction de première instance compétente en matière commerciale, au plus tard dans les quarante-huit heures suivant la fin de la mise à disposition du public des listes électorales.
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Article R713-5
Les décisions de la commission peuvent faire l'objet d'une contestation formée dans les conditions prévues aux articles L. 25, L. 27 et R. 13 à R. 15-6 du code électoral.
Le tribunal d'instance territorialement compétent est celui dans le ressort duquel la chambre de commerce et d'industrie a son siège.
Sous-section 2 : Des candidatures.
Article R713-6
Le 1er septembre au plus tard, un arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie fixe la date de début et de fin de la période de dépôt des candidatures, la composition du dossier de candidature et la date de clôture du scrutin, qui ne peut être postérieure au premier mercredi de novembre, à minuit. Toutefois, en cas de circonstances particulières, et notamment de la fusion de chambres, la date limite du scrutin et l'ensemble du calendrier y afférent peut être modifiée par arrêté conjoint du ministre chargé de la tutelle des chambres de commerce et d'industrie et du ministre de l'intérieur.
Article R713-7
Pour les personnes physiques exerçant l'activité commerciale de pêche prévue à l'article 14 de la loi n° 97-1051 du 18 novembre 1997 d'orientation sur la pêche maritime et les cultures marines, la durée d'ancienneté de deux ans prévue à l'article L. 713-4 commence à courir à compter de la date à laquelle l'intéressé a exploité son premier navire.
Article R713-8
Tout électeur qui remplit les conditions fixées à l'article L. 713-4 peut se porter candidat dans sa sous-catégorie ou, à défaut, dans sa catégorie professionnelle. Nul ne peut être candidat dans plus d'une catégorie et sous-catégorie.
L'âge d'éligibilité s'apprécie à la date du scrutin.
Article R713-9
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Les candidatures sont déclarées à la préfecture.
Les déclarations de candidature sont recevables à compter du jour fixé par l'arrêté de convocation des électeurs prévu à l'article R. 713-6 et jusqu'au quarantième jour précédant le scrutin, à 12 heures. Elles sont faites par écrit et signées par les candidats. Elles peuvent être individuelles ou collectives et présentées soit par les candidats eux-mêmes, soit par un mandataire. Dans ce cas, les déclarations sont accompagnées du mandat signé par les mandants et par le mandataire.
La déclaration de candidature indique le nom, les prénoms, le sexe, la date et le lieu de naissance du candidat, sa nationalité, la dénomination sociale et l'adresse de l'entreprise dans laquelle il exerce ses fonctions, la catégorie professionnelle ou la sous-catégorie dans laquelle il se présente et son numéro d'inscription sur la liste électorale.
Chaque candidat atteste auprès du préfet, sous forme d'une déclaration sur l'honneur, qu'il remplit les conditions d'éligibilité énumérées à l'article L. 713-4 et qu'il n'est frappé d'aucune des incapacités prévues à l'article L. 713-3.
Article R713-10
Les déclarations de candidature qui remplissent les conditions prévues par l'article L. 713-4 et par le présent titre sont enregistrées et donnent lieu à la délivrance d'un récépissé.
Le préfet publie la liste des candidats, par affichage, à la préfecture, à la chambre de commerce et d'industrie le lendemain de la date limite de dépôt des candidatures prévue à l'article R. 713-9. Il peut compléter cette publication par tout autre moyen.
La campagne électorale débute le jour de l'affichage de la liste des candidats et prend fin la veille du jour du dépouillement, à zéro heure.
Article R713-11
Aucun retrait ou remplacement d'une candidature n'est accepté après son enregistrement.
Le refus d'enregistrement d'une candidature peut être contesté par le candidat ou son mandataire dans les conditions prévues à l'avant-dernier alinéa de l'article L. 265 du code électoral.
La candidature est enregistrée si le tribunal administratif n'a pas statué dans les trois jours du dépôt de la requête.
Article R713-12
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Les candidats qui ont recueilli au moins 5 % des suffrages exprimés peuvent obtenir le remboursement de leurs frais de propagande par la chambre de commerce et d'industrie. En cas de regroupement de candidatures par catégorie ou sous-catégorie professionnelle, tous les candidats sont considérés comme ayant obtenu 5 % des suffrages exprimés dès lors qu'un d'entre eux au moins a atteint ce pourcentage.
Un arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie définit les frais de propagande et fixe le nombre et les caractéristiques des documents admis à remboursement ainsi que les conditions de celui-ci.
Le préfet fixe, par référence aux tarifs fixés en application de l'article L. 52-11-1 du code électoral, les tarifs maximaux d'impression et d'affichage dans les limites desquels le remboursement intervient.
Sous-section 3 : De la préparation du scrutin.
Article R713-13
La commission prévue à l'article L. 713-17, dénommée "commission d'organisation des élections", est présidée par le préfet ou son représentant et comprend :
1° Le président de la juridiction de première instance compétente en matière commerciale dans le ressort de laquelle est situé le siège de la chambre de commerce et d'industrie ;
2° Le président de la chambre de commerce et d'industrie ou un membre désigné par ses soins.
La commission est assistée, pour les tâches mentionnées aux 2° et 3° de l'article R. 713-14, d'un représentant de chaque entreprise chargé de l'acheminement du courrier.
Elle peut s'adjoindre, sur décision de son président, autant de collaborateurs que nécessaire.
Le secrétariat de la commission est assuré par le directeur général de la chambre de commerce et d'industrie ou un représentant désigné par ses soins au sein de la chambre de commerce et d'industrie.
Le préfet installe la commission au plus tard le 15 septembre précédant le scrutin.
Article R713-14
La commission prévue à l'article L. 713-17 est chargée :
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1° De vérifier la conformité des bulletins de vote et des circulaires aux dispositions de l'arrêté prévu à l'article R. 713-15 ;
2° D'expédier aux électeurs, vingt et un jours avant le scrutin, les circulaires et bulletins de vote des candidats de leur catégorie, ainsi que les instruments nécessaires au vote ;
3° D'organiser la réception des votes ;
4° D'organiser le dépouillement et le recensement des votes ;
5° De proclamer les résultats.
Pour assurer ces opérations, le président de la commission peut solliciter le concours de la chambre de commerce et d'industrie.
Les envois mentionnés au 2° qui ne sont pas parvenus à leur destinataire sont retournés par les entreprises chargées de l'acheminement du courrier à la préfecture, qui les conserve jusqu'à l'expiration des délais du recours contre les élections ou, le cas échéant, jusqu'à l'intervention d'un jugement définitif sur les contestations.
Article R713-15
Un arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie fixe le format, le libellé et les modalités d'impression des bulletins et des circulaires, ainsi que les modalités de présentation des candidatures sur les bulletins de vote.
Sous-section 4 : Du vote par correspondance.
Article R713-16
Les plis contenant les votes par correspondance sont admis en franchise.
Pour le vote par correspondance, le cachet de la poste fait foi.
Les modalités du vote par correspondance sont fixées par arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie.
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Article R713-17
I. - Les enveloppes d'acheminement des votes sont adressées à la préfecture, qui en dresse un état récapitulatif.
Sous peine de nullité du vote, les enveloppes d'acheminement des votes comportent les mentions suivantes :
1° La dénomination de la chambre ;
2° La mention "Election des membres" ;
3° Le nom de l'électeur ;
4° Ses prénoms ;
5° Sa signature ;
6° La désignation de la catégorie et, le cas échéant, de la sous-catégorie à laquelle il appartient.
Les enveloppes d'acheminement des votes peuvent comporter un dispositif permettant une lecture automatisée, dans les conditions de sécurité et selon des modalités définies par arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie pris après avis de la Commission nationale de l'informatique et des libertés.
II. - Sous peine de nullité du vote, les enveloppes de scrutin comportent exclusivement les mentions suivantes :
1° La dénomination de la chambre de commerce et d'industrie ;
2° La mention "Election des membres" ;
3° La désignation de la catégorie et, le cas échéant, de la sous-catégorie à laquelle appartient l'électeur.
Article R713-18
Le lundi suivant la date du scrutin, la commission d'organisation des élections, composée le cas échéant en sections, procède aux opérations de dépouillement des votes par correspondance en séance publique et en présence de scrutateurs désignés par le président de la commission et par les
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candidats ou les mandataires des listes en présence.
Le jour du dépouillement, autant d'urnes qu'il y a de sous-catégories sont mises en place.
La commission vérifie que le nombre des enveloppes d'acheminement des votes correspond à celui qui est porté sur l'état récapitulatif mentionné à l'article R. 713-17. Si une différence est constatée, mention en est faite sur le procès-verbal paraphé par chaque membre de la commission.
La commission procède à l'ouverture des enveloppes d'acheminement des votes.
Le président ou un membre de la commission désigné par lui au sein d'une section vérifie que le vote émis correspond à la catégorie et à la sous-catégorie dont relève l'électeur et, dans le cas contraire, écarte ce vote du dépouillement.
Le président, ou un membre de la commission désigné par lui au sein d'une section, constate le vote de chaque électeur en apposant sa signature, éventuellement avec l'assistance de moyens électroniques, en face du nom de l'électeur, sur la copie de la liste électorale qui constitue la liste d'émargement, dans les conditions de sécurité et d'authentification et selon des modalités définies par arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie pris après avis de la Commission nationale de l'informatique et des libertés.
Un membre de la commission introduit ensuite chaque enveloppe de scrutin dans l'urne correspondante.
Le recensement des votes est effectué dans les formes décrites aux deuxième et troisième alinéas de l'article L. 65 du code électoral et suivant les règles fixées à l'article L. 66 du même code.
Article R713-19
La commission totalise le nombre de suffrages obtenus par chaque candidat de chaque catégorie ou sous-catégorie et attribue les sièges conformément à l'article L. 713-16.
Est considéré comme nul tout bulletin présenté sous une forme autre que celle qui a été validée par la commission, tout bulletin comportant un nombre de noms supérieur à celui des sièges à pourvoir dans la catégorie, la sous-catégorie professionnelle ou la délégation et tout bulletin entaché d'une des irrégularités mentionnées à l'article L. 66 du code électoral.
Est considéré comme nul tout suffrage désignant une personne qui n'est pas candidate.
Les bulletins et les enveloppes entachés de nullité sont conservés, paraphés par les membres de la commission et annexés au procès-verbal dans les conditions prévues par les articles L. 66 et R. 68 du code électoral.
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Article R713-20
Toutes les opérations manuelles de dépouillement prévues à l'article R. 713-18 peuvent être effectuées avec l'assistance de moyens électroniques, dans des conditions fixées par arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie après avis de la Commission nationale de l'informatique et des libertés.
Sous-section 5 : Du vote électronique.
Article R713-21
La commission d'organisation des élections adresse à tous les électeurs, en même temps que les documents prévus au 2° de l'article R. 713-14, une circulaire relative aux modalités d'accès au système de vote électronique auquel l'électeur se relie pour voter ainsi que, selon des modalités garantissant leur confidentialité, les instruments permettant l'expression du vote.
Ces instruments permettent l'authentification de l'électeur et la vérification de l'unicité de son vote selon des exigences de sécurité et des modalités définies par arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie pris après avis de la Commission nationale de l'informatique et des libertés.
Article R713-22
Pour voter par voie électronique, l'électeur, après connexion au site internet ou à tout autre réseau accessible à tous les électeurs, s'identifie, exprime son vote et le valide au moyen des instruments d'authentification qui lui ont été attribués. Il vérifie l'inscription sécurisée de son vote par le système de vote électronique. La transmission du vote et l'émargement de l'électeur doivent pouvoir faire l'objet d'une date certaine de réception et d'un accusé de réception électronique.
Article R713-23
Les données relatives aux électeurs inscrits sur les listes électorales ainsi que celles relatives à l'expression de leur vote font l'objet, selon les modalités techniques fixées par arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie pris après avis de la Commission nationale de l'informatique et des libertés, de traitements automatisés d'information effectués sur des systèmes informatiques distincts, dédiés et isolés, respectivement dénommés "fichier des électeurs" et "contenu de l'urne électronique".
Le traitement "fichier des électeurs" est établi à partir des listes électorales dressées par la
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commission d'établissement des listes électorales. Ce traitement permet à la commission d'organisation des élections, d'adresser à chaque électeur les instruments d'authentification mentionnés à l'article R. 713-21, d'identifier les électeurs ayant pris part au vote électronique et d'éditer la liste d'émargement. L'émargement indique l'heure du vote. Les listes d'émargement sont enregistrées sur un support distinct de celui de l'urne électronique, scellé, non réinscriptible, rendant son contenu inaltérable et probant.
Le fichier dénommé "contenu de l'urne électronique" recense les votes exprimés par voie électronique. Les données de ce fichier font l'objet d'un chiffrement et ne doivent pas comporter de lien permettant l'identification des électeurs.
Article R713-24
Le jour du dépouillement des votes, le président de la commission d'organisation des élections imprime la liste d'émargement à partir du traitement "fichier des électeurs". Cette liste constitue la liste d'émargement pour le vote par correspondance.
Le président de la commission et l'un des assesseurs reçoivent chacun une clef de dépouillement distincte, selon des modalités en garantissant la confidentialité, permettant d'accéder aux données du fichier dénommé "contenu de l'urne électronique". Le président reçoit également les éléments permettant la vérification de l'intégrité du système de vote électronique.
Après la clôture des opérations de vote et vérification de l'intégrité du fichier dénommé "contenu de l'urne électronique", le président de la commission d'organisation des élections et l'assesseur mentionné à l'alinéa précédent procèdent publiquement au dépouillement.
Les décomptes des voix par candidat apparaissent lisiblement à l'écran et font l'objet d'une édition sécurisée afin d'être portés au procès-verbal de l'élection.
Le système de vote électronique est verrouillé après le dépouillement de sorte qu'il soit impossible de reprendre ou de modifier le résultat après la décision de clôture du dépouillement prise par la commission.
La commission d'organisation des élections contrôle que le nombre total de votes exprimés par voie électronique correspond au nombre de votants figurant sur la liste d'émargement.
Le nombre total de suffrages exprimés par voie électronique ainsi que le nombre de voix obtenues par chaque candidat sont portés au procès-verbal.
Article R713-25
Jusqu'à l'expiration des délais de recours contentieux, les fichiers supports comprenant la copie des programmes sources et des programmes exécutables, les matériels de vote, les fichiers d'émargement, de résultats et de sauvegarde sont conservés sous scellés sous le contrôle de la
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commission d'organisation des élections. La procédure de décompte des votes enregistrés doit, si nécessaire, pouvoir être exécutée de nouveau.
A l'expiration des délais de recours, et si aucun recours n'a été exercé, il est procédé à la destruction des fichiers supports sous le contrôle de la commission d'organisation des élections.
Article R713-26
Les modalités d'application de la présente sous-section et d'expertise du système de vote sont fixées par arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie pris après avis de la Commission nationale de l'informatique et des libertés.
Sous-section 6 : De la proclamation des résultats et du contentieux des élections.
Article R713-27
A l'issue du dépouillement, la commission d'organisation des élections dresse un procès-verbal signé par son président et ses membres et proclame les résultats des élections en public.
Cette proclamation intervient au plus tard quarante-huit heures après le début du dépouillement.
Le procès-verbal est transmis au préfet qui en adresse une copie au ministre chargé de la tutelle des chambres de commerce et d'industrie et à la chambre de commerce et d'industrie.
Les listes d'émargement sont transmises au préfet. Elles peuvent être consultées à la préfecture dans les conditions fixées par l'article L. 68 du code électoral.
Article R713-28
Les recours en annulation des élections aux chambres de commerce et d'industrie peuvent être formés par tout électeur et par le préfet dans les conditions prévues aux articles L. 248, et R. 119 à R. 122 du code électoral.
Toutefois, le délai de cinq jours prévu au premier alinéa de l'article R. 119 de ce code court à compter de la proclamation des résultats.
L'appel est formé dans un délai d'un mois devant la cour administrative d'appel dans les conditions fixées aux articles R. 811-1 à R. 811-4 du code de justice administrative. Il est jugé comme affaire
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urgente.
Les membres élus restent en fonction jusqu'à ce qu'il ait été définitivement statué sur les réclamations.
Article R713-29
En cas d'annulation partielle ou totale devenue définitive des élections des membres d'une chambre de commerce et d'industrie et sauf si cette annulation est prononcée moins d'un an avant un renouvellement général, il est procédé, dans le délai de deux mois, à un nouveau scrutin pour pourvoir les sièges vacants.
Dans le cas prévu à l'alinéa précédent ainsi que dans les cas prévus au I et au II de l'article L. 713-5, le préfet arrête les dates et les délais des différentes opérations électorales.
Article R713-30
Lorsque les dates fixées par la présente section ou le dernier jour des délais impartis tombent un jour férié ou un samedi, ils sont reportés jusqu'au premier jour ouvrable qui suit. Il en est de même pour l'application de l'arrêté préfectoral prévu au deuxième alinéa de l'article R. 713-29.
Section 2 : De l'élection des délégués consulaires
Sous-section 1 : Dispositions générales.
Article R713-31
Les délégués consulaires sont élus dans la circonscription définie à l'article L. 713-6.
Article R713-32
Le nombre des délégués consulaires est fixé, dans les conditions prévues à l'article L. 713-12, par arrêté préfectoral.
La répartition des délégués entre les catégories correspondant respectivement aux activités commerciales, industrielles ou de services et éventuellement les sous-catégories prévues par l'article L. 713-11 se fait dans les mêmes conditions que celles qui sont fixées pour les membres des
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chambres de commerce et d'industrie par les articles R. 713-65 à R. 713-68.
Article R713-33
Le délégué consulaire qui souhaite démissionner ou qui perd la qualité au titre de laquelle il a été élu adresse sa démission au préfet. Toutefois, conservent leur mandat jusqu'aux prochaines élections les délégués consulaires qui changent de catégorie ou de sous-catégorie professionnelle et les délégués consulaires qui remplissent les conditions d'éligibilité dans une autre circonscription.
Article R713-34
La commission d'organisation des élections prévue à l'article L. 713-17, comprend, outre son président :
1° Le président de la juridiction de première instance compétente en matière commerciale comportant des juges élus dans le ressort de laquelle est situé le siège de la chambre de commerce et d'industrie ou son représentant ;
2° Le président de la chambre de commerce et d'industrie ou un membre désigné par ses soins.
La commission est assistée, pour les tâches mentionnées aux 2° et 3° de l'article R. 713-35, d'un représentant de chaque entreprise assurant l'acheminement du courrier.
Elle peut faire appel, sur décision de son président, à des collaborateurs désignés par le président de la chambre de commerce et d'industrie.
Le secrétariat de la commission est assuré par le greffier de la juridiction mentionnée au deuxième alinéa du présent article et par le directeur général de la chambre de commerce et d'industrie ou un représentant désigné par ses soins au sein de la chambre de commerce et d'industrie.
Le préfet installe la commission au plus tard le 15 septembre précédant le jour d'ouverture du scrutin.
Article R713-35
La commission est chargée :
1° De vérifier la conformité des bulletins de vote et des circulaires aux dispositions de l'arrêté prévu à l'article R. 713-36 ;
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2° D'expédier aux électeurs, vingt et un jours avant la date d'ouverture du scrutin, les circulaires et bulletins de vote des candidats de chaque catégorie ou sous-catégorie ainsi que les instruments nécessaires au vote ;
3° D'organiser la réception des votes ;
4° D'organiser le dépouillement et le recensement des votes ;
5° De proclamer les résultats.
Pour assurer ces opérations, le président de la commission peut solliciter le concours de la chambre de commerce et d'industrie.
Les envois mentionnés au 2° du présent article qui ne sont pas parvenus à leur destinataire sont retournés par les entreprises assurant l'acheminement du courrier à la préfecture, qui les conserve jusqu'à l'expiration des délais du recours contre les élections ou, le cas échéant, jusqu'à l'intervention d'un jugement définitif sur les contestations.
Article R713-36
Un arrêté du garde des sceaux, ministre de la justice, fixe le format, le libellé et les modalités d'impression des bulletins et des circulaires, ainsi que les modalités de présentation des candidatures sur les bulletins de vote.
Sous-section 2 : De l'établissement des listes électorales.
Article R713-37
Pour l'application de l'article L. 713-7, la chambre de commerce et d'industrie demande aux entreprises inscrites au registre du commerce et des sociétés de lui communiquer la liste des personnes mentionnées aux 2° et 3° de cet article.
Les personnes désignées au d du 1° du même article demandent à s'inscrire sur la liste auprès de la commission d'établissement des listes électorales prévue à l'article L. 713-14 avant la date du 30 juin. Il en est de même des anciens membres des tribunaux de commerce mentionnés au e de la même disposition.
La commission d'établissement des listes électorales procède à l'établissement et à la révision des listes électorales qui sont arrêtées au plus tard le 30 juin.
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Les listes électorales, établies par catégorie et, le cas échéant, sous-catégorie professionnelles, sont transmises au préfet au plus tard le 31 juillet.
Article R713-38
Le préfet met à la disposition du public, du 1er août au 1er septembre inclus, dans le greffe de chaque juridiction de première instance compétente en matière commerciale et comportant des juges élus, à la chambre de commerce et d'industrie ainsi qu'à la préfecture, un exemplaire des listes électorales.
Le préfet informe les électeurs du dépôt des listes électorales et des lieux et modalités de leur consultation, par voie d'affiches apposées à la préfecture du siège du tribunal de commerce, au siège de la chambre et, le cas échéant, par tout autre moyen.
La consultation des listes électorales par voie électronique s'effectue dans le respect des dispositions législatives et réglementaires assurant la sécurité et la confidentialité des données.
Tout électeur est autorisé à prendre communication des listes électorales et à en prendre copie à ses frais auprès du greffe de la juridiction mentionnée au premier alinéa du présent article.
Article R713-39
Tout électeur peut présenter, durant la période de publicité des listes électorales prévue à l'article R. 713-38, une réclamation à la commission d'établissement des listes électorales.
Les réclamations sont déposées au secrétariat de la commission.
La commission d'établissement des listes électorales statue sur les réclamations ainsi que sur les éléments nouveaux apparus entre le 30 juin et le 31 juillet qui lui sont signalés par le préfet, le juge commis à la surveillance du registre du commerce et des sociétés ou le greffier de la juridiction mentionnée au premier alinéa de l'article R. 713-38, au plus tard dans les soixante-douze heures suivant la fin de la mise à disposition du public des listes électorales.
Article R713-40
Les décisions de la commission peuvent faire l'objet d'une contestation formée dans les conditions prévues aux articles L. 25, L. 27 et R. 13 à R. 15-6 du code électoral.
Les recours prévus aux premier et deuxième alinéas de l'article L. 25 sont formés dans les dix jours à compter de la notification de la décision de la commission.
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Le tribunal d'instance territorialement compétent est celui dans le ressort duquel la juridiction intéressée par l'élection a son siège.
Article R713-41
Lorsque des élections sont organisées dans une juridiction de première instance compétente en matière commerciale comportant des juges élus au cours des quatre années suivant celle du renouvellement quinquennal des délégués consulaires, la commission d'établissement des listes électorales se réunit sur convocation de son président pour examiner les demandes d'inscription sur la liste électorale des délégués consulaires présentées par les électeurs justifiant qu'ils remplissent les conditions d'éligibilité aux fonctions de délégué consulaire fixées à l'article L. 713-10.
Cette demande est présentée au plus tard sept jours après la date de l'arrêté préfectoral convoquant le collège électoral des juges consulaires.
La commission d'établissement des listes électorales statue au plus tard quinze jours après la date de l'arrêté préfectoral convoquant le collège électoral des juges consulaires.
Les décisions de la commission peuvent faire l'objet d'un recours dans un délai de quinze jours. Ce recours et le pourvoi en cassation sont formés dans les conditions prévues aux articles R. 13 à R. 15-6 du code électoral.
Sous-section 3 : Des candidatures.
Article R713-42
Le 1er septembre au plus tard, un arrêté conjoint du garde des sceaux, ministre de la justice, et du ministre chargé de la tutelle des chambres de commerce et d'industrie fixe les dates de début et de fin de la période de dépôt des candidatures et les dates d'ouverture et de clôture du scrutin. Cette dernière ne peut être postérieure au premier mercredi de novembre à minuit. Toutefois, en cas de circonstances particulières, les dates d'ouverture et de clôture du scrutin peuvent être repoussées par arrêté conjoint des mêmes autorités.
Article R713-43
Tout électeur qui remplit les conditions fixées à l'article L. 713-10 peut se porter candidat dans sa sous-catégorie ou, à défaut, dans sa catégorie professionnelle. Nul ne peut être candidat dans plus d'une catégorie et sous-catégorie.
L'âge d'éligibilité s'apprécie à la date de clôture du scrutin.
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Article R713-44
Les candidatures sont déclarées à la préfecture.
Les déclarations de candidature sont faites par écrit et signées par les candidats. Elles peuvent être présentées sous une forme individuelle ou collective par catégorie ou sous-catégorie soit par les candidats eux-mêmes, soit par un mandataire. Dans ce cas, les déclarations doivent être accompagnées du mandat signé par les mandants et par le mandataire.
La déclaration de candidature indique le nom, le ou les prénoms, le sexe, la date et le lieu de naissance du candidat, sa nationalité, la dénomination sociale et l'adresse de l'entreprise dans laquelle il exerce ses fonctions, la catégorie professionnelle ou la sous-catégorie dans laquelle il se présente ainsi que son numéro d'inscription sur la liste électorale.
Chaque candidat joint à sa candidature une déclaration sur l'honneur attestant qu'il remplit les conditions d'éligibilité fixées à l'article L. 713-10 et qu'il n'est frappé d'aucune des peines, déchéances, sanctions ou interdictions prévues à l'article L. 713-9.
Article R713-45
Les déclarations de candidature qui remplissent les conditions fixées par l'article L. 713-10 et par la présente section sont enregistrées et donnent lieu à la délivrance d'un récépissé.
Article R713-46
Le lendemain de la date limite de dépôt des candidatures, le préfet publie la liste des candidats par voie d'affichage à la préfecture, au greffe de la juridiction mentionnée au premier alinéa de l'article R. 713-38 et à la chambre de commerce et d'industrie. Il peut compléter cette publication par tout autre moyen.
La campagne électorale débute le jour de l'affichage de la liste des candidats en préfecture et prend fin la veille du jour d'ouverture du dépouillement à zéro heure.
Article R713-47
Aucun retrait ou remplacement d'une candidature n'est accepté après son enregistrement.
Le refus d'enregistrement d'une candidature peut être contesté par le candidat ou son mandataire qui disposent d'un délai de vingt-quatre heures pour saisir le tribunal administratif, lequel statue, en
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premier et dernier ressort, dans les trois jours du dépôt de la requête.
La candidature est enregistrée si le tribunal administratif n'a pas statué dans ce délai.
Article R713-48
Tout candidat qui a recueilli au moins 5 % des suffrages exprimés bénéficie du remboursement des frais de campagne mentionnés au deuxième alinéa du présent article par la chambre de commerce et d'industrie dans la circonscription de laquelle a lieu le scrutin.
Un arrêté conjoint du garde des sceaux, ministre de la justice, et du ministre chargé de la tutelle des chambres de commerce et d'industrie définit les frais de campagne et fixe le nombre et les caractéristiques des documents admis à remboursement ainsi que les conditions de celui-ci.
Le préfet fixe, par référence aux tarifs applicables aux élections régies par le titre Ier du livre Ier du code électoral, les tarifs maximaux d'impression et d'affichage dans les limites desquels le remboursement intervient.
Sous-section 4 : Du vote par correspondance.
Article R713-49
Les plis contenant les votes par correspondance sont admis en franchise.
Pour la prise en compte du vote, le cachet de la poste fait foi.
Article R713-50
Les enveloppes d'acheminement des votes sont adressées à la préfecture, qui en dresse un état récapitulatif.
Sous peine de nullité du vote, les enveloppes d'acheminement des votes comportent les mentions suivantes :
1° La dénomination de la juridiction intéressée par l'élection ;
2° La mention : "Election des délégués consulaires" ;
3° Le nom de l'électeur ;
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4° Ses prénoms ;
5° Sa signature ;
6° La désignation de la catégorie professionnelle et, le cas échéant, de la sous-catégorie à laquelle il appartient.
Les enveloppes d'acheminement des votes peuvent comporter un dispositif permettant une lecture automatisée, dans les conditions de sécurité et selon des modalités définies par arrêté conjoint du garde des sceaux, ministre de la justice, et du ministre de l'intérieur pris après avis de la Commission nationale de l'informatique et des libertés.
Les autres modalités du vote par correspondance sont fixées par arrêté conjoint des mêmes autorités.
Article R713-51
Le lundi suivant la date de clôture du scrutin, la commission d'organisation des élections procède aux opérations de dépouillement des votes par correspondance en public et en présence de scrutateurs désignés par le président de la commission et par les candidats ou leurs mandataires.
Autant d'urnes qu'il y a de sous-catégories sont mises en place.
Article R713-52
La commission vérifie que le nombre des enveloppes d'acheminement des votes correspond à celui qui est porté sur l'état récapitulatif mentionné à l'article R. 713-50. Si une différence est constatée, mention en est faite sur le procès-verbal paraphé par chaque membre de la commission.
La commission procède à l'ouverture des enveloppes d'acheminement des votes.
Le président ou un membre de la commission désigné par lui vérifie que le vote émis correspond à la catégorie et à la sous-catégorie et au ressort de la juridiction dont relève l'électeur et, dans le cas contraire, écarte ce vote du dépouillement.
Le président ou un membre de la commission désigné par lui constate le vote de chaque électeur en apposant sa signature, éventuellement avec l'assistance de moyens électroniques, en face du nom de l'électeur, sur la copie de la liste électorale qui constitue la liste d'émargement, dans des conditions de sécurité et d'authentification et selon des modalités définies par arrêté conjoint du garde des sceaux, ministre de la justice, et du ministre chargé de la tutelle des chambres de commerce et d'industrie pris après avis de la Commission nationale de l'informatique et des libertés.
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Un membre de la commission introduit ensuite chaque enveloppe de scrutin dans l'urne correspondante.
Le recensement des votes est effectué dans les formes prévues aux deuxième et troisième alinéas de l'article L. 65 du code électoral et suivant les règles fixées à l'article L. 66 de ce code.
Article R713-53
La commission totalise, dans chaque ressort, le nombre de suffrages obtenus par chaque candidat de chaque catégorie ou sous-catégorie professionnelles et attribue les sièges conformément à l'article L. 713-16.
Est considéré comme nul tout bulletin présenté sous une forme autre que celle qui a été validée par la commission, tout bulletin comportant un nombre de noms supérieur à celui des sièges à pourvoir dans la catégorie et, le cas échéant, la sous-catégorie professionnelle et tout bulletin entaché d'une des irrégularités mentionnées à l'article L. 66 du code électoral.
Est considéré comme nul tout suffrage désignant une personne qui n'est pas candidate.
Les bulletins et les enveloppes entachés de nullité sont conservés, paraphés par les membres de la commission et annexés au procès-verbal dans les conditions prévues par les articles L. 66 et R. 68 du code électoral.
Sous-section 5 : Du vote électronique.
Article R713-54
La commission d'organisation des élections adresse à tous les électeurs, en même temps que les documents prévus au 2° de l'article R. 713-35, une instruction relative aux modalités d'accès au système de vote électronique auquel l'électeur se relie pour voter ainsi que les instruments permettant l'expression du vote selon des modalités garantissant sa confidentialité.
Ces instruments permettent l'authentification de l'électeur et la vérification de l'unicité de son vote selon des exigences de sécurité et des modalités définies par arrêté conjoint du garde des sceaux, ministre de la justice, et du ministre chargé de la tutelle des chambres de commerce et d'industrie pris après avis de la Commission nationale de l'informatique et des libertés.
Article R713-55
Pour voter par voie électronique, l'électeur, après connexion au site internet ou à tout autre réseau
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accessible à tous les électeurs, s'identifie, exprime son vote et le valide au moyen des instruments d'authentification qui lui ont été attribués. Il vérifie l'inscription sécurisée de son vote par le système de vote électronique. La transmission du vote et l'émargement de l'électeur font l'objet d'un accusé de réception électronique sur lequel figure la date de ladite réception.
Article R713-56
Le jour du dépouillement des votes, le président de la commission d'organisation des élections imprime la liste d'émargement à partir du traitement "fichier des électeurs". Cette liste constitue la liste d'émargement pour le vote par correspondance.
Le président et l'un des membres de la commission reçoivent chacun une clef de dépouillement distincte, selon des modalités en garantissant la confidentialité, permettant d'accéder aux données du fichier dénommé "contenu de l'urne électronique". Le président reçoit également les éléments permettant la vérification de l'intégrité du système de vote électronique.
Après clôture des opérations de vote et vérification de l'intégrité du fichier dénommé "contenu de l'urne électronique", le président de la commission d'organisation des élections et le membre de celle-ci mentionné à l'alinéa précédent procèdent publiquement au dépouillement.
Les décomptes des voix par candidat apparaissent lisiblement à l'écran et font l'objet d'une édition sécurisée qui est portée au procès-verbal de l'élection.
Le système de vote électronique est verrouillé après le dépouillement de sorte qu'il soit impossible de reprendre ou de modifier le résultat après la décision de clôture du dépouillement prise par la commission.
La commission d'organisation des élections contrôle que le nombre total de votes exprimés par voie électronique correspond au nombre de votants figurant sur la liste d'émargement.
Le nombre total de suffrages exprimés par voie électronique ainsi que le nombre de voix obtenues par chaque candidat sont portés au procès-verbal.
Article R713-57
Les données relatives aux électeurs inscrits sur les listes électorales ainsi que celles relatives à l'expression du vote font l'objet, selon des modalités fixées par arrêté conjoint du garde des sceaux, ministre de la justice, et du ministre chargé de la tutelle des chambres de commerce et d'industrie pris après avis de la Commission nationale de l'informatique et des libertés, de traitements automatisés d'information effectués sur des systèmes informatiques distincts dénommés "fichier des électeurs" et "contenu de l'urne électronique".
Le traitement "fichier des électeurs" est établi à partir des listes électorales dressées par la
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commission d'établissement des listes électorales. Le fichier des électeurs permet à la commission d'organisation des élections d'adresser à chaque électeur les instruments d'authentification mentionnés à l'article R. 713-54, d'identifier les électeurs ayant pris part au vote électronique et d'éditer la liste d'émargement. L'émargement indique l'heure du vote. Les listes d'émargement sont enregistrées sur un support distinct de celui de l'urne électronique, scellé, non réinscriptible, rendant son contenu inaltérable et probant.
Le fichier dénommé "contenu de l'urne électronique" recense les votes exprimés par voie électronique. Les données de ce fichier font l'objet d'un chiffrement et ne doivent pas comporter de lien permettant l'identification des électeurs.
Article R713-58
Jusqu'à l'expiration des délais de recours contentieux, les fichiers supports comprenant la copie des programmes sources et des programmes exécutables, les matériels de vote, les fichiers d'émargement, de résultats et de sauvegarde sont conservés sous scellés sous le contrôle de la commission d'organisation des élections. La procédure de décompte des votes enregistrés doit, si nécessaire, pouvoir être exécutée de nouveau.
A l'expiration des délais de recours, et si aucun recours n'a été exercé, il est procédé à la destruction des fichiers supports sous le contrôle de la commission d'organisation des élections.
Sous-section 6 : De la proclamation des résultats et du contentieux.
Article R713-59
A l'issue du dépouillement, la commission d'organisation des élections dresse un procès-verbal signé par son président et ses membres et proclame publiquement les résultats des élections. Cette proclamation intervient au plus tard soixante-douze heures après le début du dépouillement.
Le procès-verbal est transmis au préfet.
Les listes d'émargement sont transmises au préfet. Elles peuvent être consultées à la préfecture par tout électeur requérant durant un délai de dix jours suivant la proclamation des résultats.
Article R713-60
L'élection des délégués consulaires peut faire l'objet d'une contestation formée par tout électeur et par le préfet dans les conditions prévues aux articles L. 248, R. 119 à R. 122 du code électoral.
Toutefois, le délai de cinq jours prévu au premier alinéa de l'article R. 119 de ce code court à
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compter de la proclamation des résultats.
L'appel est formé dans un délai d'un mois devant la cour administrative d'appel dans les conditions fixées aux articles R. 811-1 à R. 811-4 du code de justice administrative.
Les délégués élus restent en fonction jusqu'à ce qu'il ait été définitivement statué sur les réclamations.
Article R713-61
En cas d'annulation partielle ou totale devenue définitive des élections des délégués consulaires et sauf si cette annulation est prononcée moins d'un an avant un renouvellement général, il est procédé, dans le délai de deux mois, à un nouveau scrutin pour pourvoir les sièges vacants.
Dans le cas prévu à l'alinéa précédent, le préfet arrête les dates et les délais des différentes opérations électorales. Il organise ces opérations dans les conditions fixées dans la présente section.
Article R713-62
Lorsque les dates fixées par la présente section ou le dernier jour des délais qu'il impartit tombent un jour férié ou un samedi, ils sont reportés jusqu'au premier jour ouvrable qui suit. Il en est de même pour l'application de l'arrêté prévu au deuxième alinéa de l'article R. 713-61.
Section 3 : Dispositions communes.
Article R713-63
Le fait de se livrer à un usage commercial des listes électorales établies pour les élections des délégués consulaires est puni de l'amende prévue par le 5° de l'article 131-13 du code pénal pour les contraventions de la cinquième classe.
Article R713-64
En cas d'utilisation par un même électeur au titre de la même qualité des votes par correspondance ou par voie électronique, seul le vote électronique est considéré comme valide.
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Article R713-65
Un arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie fixe, par référence aux nomenclatures d'activités et de produits de l'Institut national de la statistique et des études économiques, la composition des catégories professionnelles prévues au premier alinéa de l'article L. 713-11.
Article R713-66
A l'occasion d'un renouvellement sur deux, la chambre de commerce et d'industrie réalise, suivant les critères fixés par les articles L. 713-11, L. 713-12 et L. 713-13, une étude visant à déterminer l'importance économique des catégories et, le cas échéant, des sous-catégories professionnelles.
L'étude est élaborée à partir de données statistiques collectées selon des modalités fixées par arrêté du ministre chargé de la tutelle des chambres de commerce et d'industrie et permettant de calculer les rapports suivants entre :
1° La somme des bases d'imposition de la taxe professionnelle des ressortissants de la catégorie et la somme des bases d'imposition de l'ensemble des ressortissants ;
2° Le nombre de ressortissants de la catégorie et le nombre total des ressortissants ;
3° Le nombre de salariés employés par les ressortissants de la catégorie et le nombre de salariés employés par l'ensemble des ressortissants.
L'étude décrit la répartition des membres entre catégories professionnelles et, le cas échéant, entre sous-catégories professionnelles et propose le nombre de membres que doit comporter la chambre de commerce et d'industrie. Elle est remise au préfet au plus tard le 31 mars de l'année du renouvellement.
Article R713-67
Les informations nominatives collectées et exploitées par les chambres de commerce et d'industrie à l'occasion de la préparation de l'étude prévue à l'article R. 713-66 ne font l'objet d'aucune interconnexion avec d'autres fichiers. Elles sont conservées le temps strictement nécessaire à la réalisation de l'étude pour laquelle elles sont collectées et ne sont pas utilisées à d'autres fins.
Article R713-68
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Au plus tard le 31 mai de l'année au cours de laquelle l'étude a été réalisée, un arrêté préfectoral détermine le nombre des membres et la composition de la chambre de commerce et d'industrie par catégories et sous-catégories professionnelles. Pour tenir compte de particularités locales, le préfet peut s'écarter des propositions de l'étude en ce qui concerne le nombre de sièges attribués aux différentes catégories à concurrence du vingtième des sièges à pourvoir.
Article R713-69
En cas de création d'une nouvelle chambre, de création d'une délégation ou de modification de la circonscription d'une chambre, le préfet arrête le nombre de membres et la composition de la chambre dans les conditions prévues aux articles R. 713-66 et R. 713-68.
Article R713-70
La commission mentionnée à l'article L. 713-14, dénommée "commission d'établissement des listes électorales", est présidée par le juge commis à la surveillance du registre du commerce et des sociétés dans le ressort duquel est situé le siège de la chambre de commerce et d'industrie. Elle est composée, outre son président, d'un représentant du préfet et d'un membre de la chambre de commerce et d'industrie désigné par l'assemblée générale de la chambre.
La commission se réunit, sur convocation de son président, à compter du 1er janvier de l'année de chaque renouvellement.
Le secrétariat de la commission est assuré conjointement par le greffier de la juridiction de première instance compétente en matière commerciale comportant des juges élus et par le directeur général de la chambre de commerce et d'industrie ou leur représentant.
La commission peut associer à ses tâches la chambre de commerce et d'industrie.
Les services de la chambre de commerce et d'industrie fournissent toute assistance technique au secrétariat de la commission.
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Partie réglementaire
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce.
TITRE II : Du tribunal de commerce.
Chapitre Ier : De l'institution et de la compétence
Section 1 : Dispositions générales.
Article R721-1
Les tribunaux de commerce appliquent les principes directeurs du procès civil.
Article D721-2
Le siège et le ressort des tribunaux de commerce sont fixés conformément au tableau de l'annexe 7-1 du présent livre.
Article D721-3
Le nombre des juges et le nombre des chambres de chaque tribunal de commerce sont fixés conformément aux tableaux de l'annexe 7-2 du présent livre.
Article R721-4
Les costumes des membres du tribunal de commerce sont définis ainsi qu'il suit :
a) Robe : noire à grandes manches avec revers de velours (pour le président du tribunal de commerce de Paris, lors des audiences solennelles et cérémonies publiques : robe rouge avec des
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parements de velours noir) ;
b) Simarre : de soie noire ;
c) Toque : noire avec un galon d'argent (deux galons pour le président) ;
d) Cravate : blanche plissée.
Section 2 : De la compétence.
Article R721-5
Lorsqu'une juridiction commerciale est créée ou lorsque le ressort d'un tribunal de commerce ou d'un tribunal de grande instance statuant en matière commerciale est modifié par suite d'une nouvelle délimitation des circonscriptions administratives ou judiciaires, le tribunal compétent primitivement saisi demeure compétent pour statuer sur les procédures introduites antérieurement à la date de création du tribunal ou de modification du ressort ainsi que sur toutes les procédures qui découlent d'une sauvegarde, d'un redressement judiciaire, d'une liquidation judiciaire, d'un règlement judiciaire, d'une liquidation de biens, ainsi que d'une faillite personnelle ou d'autres sanctions.
Article R721-6
Le tribunal de commerce connaît en dernier ressort des demandes jusqu'à la valeur de 4 000 euros.
Section 3 : Du Conseil national des tribunaux de commerce.
Article R721-7
Un Conseil national des tribunaux de commerce est institué auprès du garde des sceaux, ministre de la justice.
Article R721-8
Le Conseil national des tribunaux de commerce est présidé par le garde des sceaux, ministre de la justice.
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Il comprend en outre :
1° Trois membres de droit :
a) Le directeur des services judiciaires ;
b) Le directeur des affaires civiles et du sceau ;
c) Le directeur des affaires criminelles et des grâces.
Le garde des sceaux, ministre de la justice, et les trois autres membres de droit du conseil désignent chacun un suppléant ;
2° Seize membres désignés par le garde des sceaux :
a) Un premier président de cour d'appel ;
b) Un procureur général près une cour d'appel ;
c) Un membre du Conseil d'Etat désigné sur proposition du vice-président du Conseil d'Etat ;
d) Un greffier de tribunal de commerce désigné sur proposition du président du Conseil national des greffiers des tribunaux de commerce ;
e) Deux personnalités qualifiées, dont l'une est désignée sur proposition du président du Conseil économique et social ;
f) Dix juges consulaires, dont deux au plus ayant la qualité de juge honoraire, ayant exercé leur mandat dans un tribunal de commerce pendant au moins deux ans. Les juges consulaires honoraires doivent avoir cessé leur activité juridictionnelle depuis moins de trois ans lors de leur désignation.
Ces membres sont désignés pour une durée de cinq ans non renouvelable.
Un membre suppléant est désigné dans les mêmes conditions pour chaque membre titulaire.
Toute vacance ou perte de la qualité au titre de laquelle ils ont été désignés donne lieu à remplacement pour la durée du mandat restant à courir, si elle survient plus de trois mois avant le terme normal de celui-ci.
Article R721-9
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Les membres du Conseil national des tribunaux de commerce ayant la qualité de juge consulaire sont désignés parmi ceux qui ont fait acte de candidature au plus tard trois mois avant l'expiration du mandat des membres en fonction.
Article R721-10
Lors de sa première réunion et de chaque renouvellement, le conseil élit un vice-président parmi ceux de ses membres qui ont la qualité de juge consulaire en activité ou honoraire.
Article R721-11
Le garde des sceaux, ministre de la justice, peut consulter le conseil dans les domaines suivants :
1° La formation et la déontologie des juges des tribunaux de commerce ;
2° L'organisation, le fonctionnement et l'activité des tribunaux de commerce ;
3° La compétence et l'implantation des tribunaux de commerce.
Le conseil peut émettre des propositions dans les mêmes domaines.
Article R721-12
Le conseil peut, à la demande des chefs de cour d'appel ou avec leur accord, procéder à des visites d'information dans les tribunaux de commerce.
Article R721-13
Le conseil rend compte de son activité dans un rapport annuel remis au garde des sceaux, ministre de la justice.
Article R721-14
Le garde des sceaux, ministre de la justice, désigne un secrétaire général et définit ses attributions.
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Article R721-15
Le conseil se réunit au moins trois fois par an, sur convocation de son président, qui fixe l'ordre du jour.
La convocation à une réunion du conseil est adressée à ses membres au moins quinze jours avant la date de cette réunion. L'ordre du jour figure dans la convocation.
Le suppléant du garde des sceaux, ministre de la justice, préside en l'absence de celui-ci les séances du conseil.
Le vice-président organise et coordonne les travaux réalisés à la demande du conseil par ses membres en vue de chaque réunion de celui-ci.
Article R721-16
Le conseil ne peut se réunir que si la majorité de ses membres est présente. Il ne peut valablement adopter une délibération qu'à la majorité de quatorze de ses membres.
Article R721-17
Le conseil arrête son règlement intérieur.
Article R721-18
Les membres du conseil ont droit à la prise en charge de leurs frais de déplacement dans les conditions fixées par la réglementation applicable aux fonctionnaires de l'Etat.
Chapitre II : De l'organisation et du fonctionnement
Section 1 : De l'organisation et du fonctionnement du tribunal de commerce.
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Article R722-1
L'assemblée générale du tribunal de commerce est composée des juges en exercice du tribunal de commerce. Elle est présidée par le président du tribunal de commerce.
La date et l'ordre du jour de l'assemblée générale sont fixés par ordonnance du président du tribunal de commerce prise quinze jours au moins avant la date de l'assemblée générale.
L'assemblée générale ne peut délibérer que sur les questions inscrites à l'ordre du jour.
Article R722-2
Un bureau est constitué pour chaque réunion de l'assemblée générale. Il est composé du président du tribunal, du vice-président et du premier dans l'ordre du tableau des présidents de chambre présents à l'assemblée générale. En cas d'absence du vice-président, celui-ci est remplacé par le premier dans l'ordre du tableau des présidents de chambre présents et ce dernier est lui-même remplacé par le président de chambre suivant dans l'ordre du tableau. A défaut de président de chambre, il est fait appel au juge le plus ancien présent à l'assemblée générale.
Le bureau veille au bon fonctionnement de l'assemblée, tient les feuilles de présence et de vote, statue sur les quorums, fait procéder au vote et surveille le déroulement des scrutins dont les résultats sont proclamés par le président.
Le greffier du tribunal de commerce assiste à l'assemblée générale et rédige le procès-verbal. Il signe le procès-verbal avec le président qui en transmet une copie aux chefs de la cour d'appel.
Article R722-3
L'assemblée générale ne peut valablement délibérer que si la moitié au moins de ses membres est présente ou représentée.
Si le quorum prévu à l'alinéa précédent n'est pas atteint, l'assemblée est à nouveau convoquée dans le délai d'un mois, sur le même ordre du jour. Elle peut alors valablement délibérer si un quart au moins de ses membres est présent ou représenté.
Article R722-4
Les juges en exercice du tribunal de commerce peuvent se faire représenter à l'assemblée générale par un mandataire choisi parmi les autres juges du tribunal de commerce.
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Chaque mandataire ne dispose que d'une seule procuration.
La procuration doit être donnée par écrit ; elle est annexée au procès-verbal.
Article R722-5
Le ministère public est représenté devant le tribunal de commerce dans les conditions fixées aux articles L. 122-2 et R. 311-34 à R. 311-37 du code de l'organisation judiciaire.
Article R722-6
Le président du tribunal de commerce prend par ordonnance les mesures d'administration judiciaire.
Section 2 : Du mandat des juges des tribunaux de commerce.
Article R722-7
Au cours de la semaine suivant celle de l'élection des juges nouvellement élus, le procureur général invite les juges du tribunal de commerce établi au siège de la cour d'appel qui n'ont pas encore exercé de fonctions judiciaires dans un tribunal de commerce à se présenter à l'audience de la cour d'appel pour prêter serment.
Lorsque le siège du tribunal de commerce n'est pas établi au siège de la cour d'appel, le procureur de la République près le tribunal de grande instance dans le ressort duquel siège le tribunal de commerce invite les juges qui n'ont pas encore exercé de fonctions judiciaires dans un tribunal de commerce à se présenter à l'audience du tribunal de grande instance pour prêter serment.
Il est dressé procès-verbal de la réception du serment.
Article R722-8
Lorsqu'il y a lieu de procéder à l'élection du président du tribunal de commerce, l'assemblée générale du tribunal est convoquée dans les conditions et les délais prévus au deuxième alinéa de l'article R. 722-1. Sauf dans le cas prévu au premier alinéa de l'article L. 722-12, l'élection doit avoir lieu entre le 20 octobre et le 10 novembre précédant la fin du mandat du président en exercice.
L'ordonnance portant convocation de l'assemblée générale précise que le dépôt des candidatures aux
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fonctions de président doit être effectué au greffe du tribunal huit jours avant la date de l'assemblée générale. A l'expiration de ce délai, le président procède à la clôture de la liste des candidats et fait aussitôt afficher cette liste au greffe du tribunal.
Par dérogation aux dispositions de l'article R. 722-2, le bureau de l'assemblée générale au cours de laquelle il est procédé à l'élection du président du tribunal est présidé par le doyen d'âge à défaut du président sortant et est composé des deux premiers dans l'ordre du tableau des présidents de chambre présents à l'assemblée générale ou, en l'absence de présidents de chambre, des deux juges les plus anciens présents à l'assemblée générale.
Article R722-9
Les recours relatifs à l' élection du président du tribunal de commerce sont formés par déclaration écrite déposée ou remise au greffe de la cour d' appel dans les dix jours du scrutin. Le recours n' est ouvert qu' aux juges consulaires en exercice du tribunal de commerce et au procureur de la République. Le président dont l' élection est contestée peut valablement être installé et remplir ses fonctions tant qu' il n' a pas été définitivement statué sur le recours.
La cour d' appel statue dans les dix jours de sa saisine après avoir convoqué le requérant et le président dont l' élection est contestée pour les entendre en leurs explications.
Le pourvoi en cassation est formé dans les conditions fixées aux articles 999 à 1008 du code de procédure civile. Le délai de pourvoi court à compter de la date de l' arrêt rendu par la cour d' appel ; il est compté dans les conditions fixées aux articles 641 et 642 du code de procédure civile.
Article R722-10
L'installation publique du président et des juges nouvellement élus a lieu dans la première quinzaine du mois de janvier. En cas d'élections complémentaires organisées conformément au deuxième alinéa de l'article L. 723-11, l'installation des juges élus a lieu dans un délai de quinze jours à compter de la réception par le procureur général du procès-verbal des opérations électorales.
En cas de création d'un tribunal de commerce, le premier président de la cour d'appel dans le ressort duquel la juridiction consulaire a son siège procède à l'installation publique des juges élus.
Article R722-11
Le président du tribunal de commerce est suppléé dans ses fonctions par un vice-président. Celui-ci est désigné dans les mêmes conditions que celles prévues pour la suppléance en cas d'empêchement à l'article R. 722-12. Il est choisi parmi les juges ayant exercé des fonctions dans un tribunal de commerce pendant trois ans au moins.
L'ordonnance désignant le vice-président peut être modifiée en cours d'année judiciaire, en cas de
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cessation des fonctions du juge initialement désigné.
Article R722-12
Le président désigne par ordonnance prise dans la première quinzaine du mois de janvier le juge devant le suppléer dans ses fonctions en cas d'empêchement prévu au deuxième alinéa de l'article L. 722-12.
Article R722-13
Chaque chambre du tribunal de commerce est présidée par le président du tribunal ou par un président de chambre désigné dans les conditions fixées aux articles R. 722-14 et R. 722-16.
Le président du tribunal de commerce peut toujours présider une chambre quand il l'estime convenable.
Article R722-14
Les présidents de chambre sont choisis parmi les juges ayant exercé des fonctions dans un tribunal de commerce pendant trois ans au moins et sont désignés chaque année dans la quinzaine de l'installation des juges nouvellement élus par ordonnance du président du tribunal de commerce prise après avis de l'assemblée générale. Cette ordonnance peut être modifiée en cours d'année judiciaire, en cas de cessation des fonctions des juges initialement désignés.
Article R722-15
Chaque année, dans la quinzaine de l'installation des juges nouvellement élus, le président du tribunal fixe, par ordonnance prise après avis de l'assemblée générale, le tableau des juges du tribunal de commerce. Ceux-ci sont inscrits sur le tableau dans l'ordre suivant :
1° Le président du tribunal ;
2° Le vice-président ;
3° Les présidents de chambre ;
4° Les juges.
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Le rang des présidents de chambre est fixé par l'ancienneté dans les fonctions de président de chambre exercées dans le tribunal de commerce ; en cas d'égalité dans l'ancienneté, la priorité appartient au plus âgé.
Le rang des juges est fixé par l'ancienneté dans les fonctions judiciaires exercées dans le tribunal de commerce et, entre les juges élus par le même scrutin, par le nombre de voix que chacun d'entre eux a obtenu dans l'élection ; en cas d'égalité de suffrages, la priorité appartient au plus âgé.
Article R722-16
Chaque année, dans la quinzaine de l'installation des juges nouvellement élus, le président du tribunal de commerce fixe, par ordonnance prise après avis de l'assemblée générale, la répartition dans les chambres et services du tribunal des présidents de chambre et juges composant le tribunal. Cette ordonnance précise le nombre, le jour et la nature des audiences. Elle peut être modifiée dans les mêmes formes en cas de cessation des fonctions d'un ou plusieurs des juges composant la juridiction.
Un juge peut être affecté à plusieurs chambres.
En cas d'empêchement du président de chambre ou d'un ou plusieurs des juges composant une chambre d'un tribunal de commerce, celle-ci peut, sous réserve des dispositions des articles L. 722-2 et L. 722-3, être complétée par un ou plusieurs des présidents de chambre ou juges affectés dans les autres chambres du tribunal. En cas d'empêchement du président de chambre, celle-ci est présidée par le premier dans l'ordre du tableau des juges la composant.
Article R722-17
Une expédition des ordonnances rendues par le président du tribunal de commerce en application des articles R. 722-8 et R. 722-11 à R. 722-16 est transmise aux chefs de la cour d'appel.
Article R722-18
Les juges des tribunaux de commerce désireux de résilier leur mandat adressent leur démission au président du tribunal de commerce qui la transmet sans délai au préfet et au procureur de la République. La démission devient définitive à la date où le préfet en accuse réception ou, à défaut, un mois après un nouvel envoi par lettre recommandée avec demande d'avis de réception.
Article R722-19
Sous réserve des dispositions de l'article R. 724-20, les présidents, vice-présidents, présidents de
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chambre et juges des tribunaux de commerce ayant exercé des fonctions dans une juridiction commerciale pendant douze ans au moins sont autorisés à se prévaloir de l'honorariat des fonctions qu'ils ont exercées.
Article R722-20
Les juges honoraires d'un tribunal de commerce peuvent assister aux audiences d'installation et, avec voix consultative, aux assemblées générales de ce tribunal. Ils peuvent revêtir aux audiences, aux assemblées générales, et, s'il y a lieu, dans les cérémonies publiques le costume porté par les juges en exercice.
Article R722-21
Le président, le vice-président, les présidents de chambre et les juges en exercice ou honoraires des tribunaux de commerce ne peuvent faire état de leur qualité sans préciser le tribunal de commerce où ils exercent ou ont exercé leurs fonctions ; ils ne peuvent en faire mention dans la publicité et la correspondance commerciale.
Chapitre III : De l'élection des juges des tribunaux de commerce
Section 1 : De l'électorat.
Article R723-1
Dans le mois qui suit l'élection des délégués consulaires, la commission mentionnée à l'article L. 723-3 établit la liste des membres du collège électoral du tribunal de commerce. Cette commission comprend, outre son président, un juge du tribunal de commerce désigné au début de l'année judiciaire par ordonnance du président du tribunal de commerce prise après avis de l'assemblée générale du tribunal de commerce et un représentant du préfet.
La commission se réunit à l'initiative de son président.
Le secrétariat de la commission est assuré par le greffier du tribunal de commerce.
Article R723-2
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Pour établir la liste des membres du collège électoral, la commission se fait remettre une copie, certifiée par le préfet, du procès-verbal de l'élection des délégués consulaires et, par le président du tribunal de commerce, une expédition de l'ordonnance fixant le tableau des juges composant la juridiction.
La commission procède à la radiation des membres du collège électoral qui sont décédés, qui ont démissionné, qui ont été déclarés déchus de leurs fonctions ou qui ont été condamnés à l'une des peines, déchéances ou sanctions prévues aux 1° à 4° de l'article L. 723-2. La commission procède en outre à l'inscription des juges dont l'élection est intervenue postérieurement à celle des délégués consulaires ainsi qu'à celle des anciens juges des tribunaux de commerce qui demandent à être inscrits en application de l'article L. 723-1.
Article R723-3
Au plus tard le 15 juillet de chaque année, la commission arrête la liste électorale qui sera utilisée lors de l'élection prévue à l'article L. 723-11. Cette liste est aussitôt affichée au greffe du tribunal de commerce et le demeure jusqu'au dépouillement du scrutin. Une copie est transmise au préfet. La liste est rectifiée à la diligence du greffier du tribunal de commerce en cas de notification par tout intéressé d'un jugement intervenu dans les conditions fixées par les articles L. 25 et L. 34 du code électoral. Ces rectifications sont aussitôt portées à la connaissance du préfet et, avant le commencement des opérations de dépouillement et de recensement des votes, du président de la commission prévue à l'article L. 723-13.
Article R723-4
En cas de modification du ressort de deux ou plusieurs juridictions commerciales, la liste des membres du collège électoral de chacun des tribunaux de commerce concernés par cette modification est rectifiée dans les conditions prévues à l'article R. 723-2. Les greffiers desdites juridictions procèdent entre eux à toutes les communications utiles en vue des inscriptions ou radiations qu'implique cette mise à jour.
Section 2 : Du scrutin et des opérations électorales.
Article R723-5
Les élections prévues au premier alinéa de l'article L. 723-11 ont lieu dans la première quinzaine du mois d'octobre.
Sous-section 1 : Des candidatures et des opérations préalables au
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scrutin.
Article R723-6
Les candidatures aux fonctions de juge d'un tribunal de commerce sont déclarées au préfet. Nul ne peut se porter simultanément candidat dans plusieurs tribunaux de commerce.
Les déclarations de candidature sont recevables jusqu'à 18 heures le vingtième jour précédant celui du dépouillement du premier tour de scrutin. Les déclarations doivent être faites par écrit et signées par les candidats. Elles peuvent être individuelles ou collectives.
Chaque candidat accompagne sa déclaration de candidature de la copie d'un titre d'identité et d'une déclaration écrite sur l'honneur qu'il remplit les conditions d'éligibilité fixées à l'article L. 723-4, qu'il n'est pas frappé de l'une des incapacités, incompatibilités, déchéances ou inéligibilités prévues aux 1° à 4° de l'article L. 723-2 et aux articles L. 723-5 à L. 723-8, qu'il ne fait pas l'objet d'une mesure de suspension prise en application de l'article L. 724-4 et qu'il n'est pas candidat dans un autre tribunal de commerce.
Le préfet enregistre les candidatures et en donne récépissé. Il refuse celles qui ne sont pas assorties de la déclaration exigée à l'alinéa précédent et en avise les intéressés par écrit.
Aucun retrait ou remplacement d'une candidature n'est accepté après son enregistrement.
Les candidatures enregistrées sont affichées à la préfecture le lendemain de la date limite de dépôt des candidatures et portées à la connaissance du procureur général près la cour d'appel.
Article R723-7
Le collège électoral est informé, par un arrêté du préfet pris un mois avant la date du dépouillement du premier tour de scrutin, de la date, de l'heure et du lieu fixés pour les opérations de dépouillement et de recensement des votes des premier et deuxième tours de scrutin. Une copie de cet arrêté est adressée à chaque électeur.
Un délai de dix jours ouvrables sépare les dates de dépouillement des deux tours de scrutin.
Article R723-8
La commission prévue à l'article L. 723-13 comprend, outre son président, deux juges d'instance. Ces trois magistrats sont désignés par le premier président après avis de l'assemblée générale de la cour d'appel.
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Le secrétariat de la commission est assuré par le greffier du tribunal de commerce.
Sous-section 2 : Du vote par correspondance.
Article R723-9
Les plis contenant les votes par correspondance sont admis en franchise.
Article R723-10
Le préfet adresse aux électeurs, douze jours au moins avant la date du dépouillement du premier tour de scrutin, deux enveloppes électorales destinées, pour chaque tour de scrutin, à recevoir le bulletin de vote et deux enveloppes d'envoi portant les mentions "Election des juges du tribunal de commerce. - Vote par correspondance", "Juridiction :" et "Nom, prénoms et signature de l'électeur :". L'une des deux enveloppes d'envoi porte en outre la mention "Premier tour de scrutin", la seconde enveloppe porte la mention "Second tour de scrutin".
Article R723-11
Chaque électeur vote à l'aide d'un bulletin qu'il rédige lui-même. Il peut aussi utiliser l'un des bulletins imprimés envoyés par certains candidats après l'avis de la commission prévue à l'article L. 723-13. Ce bulletin imprimé peut être modifié de façon manuscrite. Chaque électeur ne met sous enveloppe qu'un seul bulletin. Le nombre des candidats désignés par chaque électeur sur son bulletin doit être égal ou inférieur à celui des juges à élire. Les suffrages exprimés en faveur des personnes dont la candidature n'a pas été enregistrée et affichée conformément aux dispositions de l'article R. 723-6 ne sont pas comptés lors du recensement des votes.
Un arrêté du garde des sceaux, ministre de la justice, fixe le format, le libellé et les modalités d'impression des bulletins ainsi que les modalités de présentation des candidatures sur les bulletins de vote.
Pour chaque tour de scrutin, l'électeur place son bulletin de vote dans l'enveloppe électorale et place cette enveloppe dans l'enveloppe d'envoi prévue pour le tour de scrutin considéré. Il adresse cette deuxième enveloppe au préfet sous pli fermé.
Article R723-12
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Le préfet dresse une liste des électeurs dont il a reçu l'enveloppe d'acheminement des votes. La liste est close la veille du dépouillement du premier tour de scrutin à dix-huit heures. Les plis parvenant ultérieurement portent la mention de la date et l'heure auxquelles ils sont parvenus à la préfecture et sont conservés par le préfet. La liste est remise avec les enveloppes cachetées contenant les enveloppes électorales au président de la commission prévue à l'article L. 723-13 avant le début des opérations de dépouillement.
Entre le premier et le second tour de scrutin, le préfet dresse la liste des électeurs dont il a reçu l'enveloppe d'acheminement des votes pour le second tour. Il clôt la liste la veille du dépouillement du second tour de scrutin à dix-huit heures et procède ensuite conformément au premier alinéa.
Article R723-13
La liste d'émargement du vote par correspondance est constituée par la liste d'émargement prévue à l'article R. 723-19. A défaut, une copie de la liste des électeurs prévue au présent article tient lieu de liste d'émargement.
A la clôture du scrutin, le secrétaire de la commission prévue à l'article L. 723-13 porte sur la liste d'émargement, en face du nom de chaque électeur, la mention "vote par correspondance". Le président de la commission ouvre ensuite chaque pli, énonce publiquement le nom de l'électeur, émarge et place dans une urne l'enveloppe contenant le bulletin de vote pour être dépouillé avec les autres.
Article R723-14
Les membres de la commission prévue à l'article L. 723-13 procèdent au dépouillement des bulletins contenus dans l'urne. Les enveloppes d'acheminement des votes et la liste des électeurs ayant voté par correspondance sont annexées à la liste d'émargement et conservées dans les conditions fixées par l'article R. 723-23.
Article R723-15
Les dispositions des articles R. 49, R. 52, de l'alinéa premier des articles R. 54 et R. 59, de l'article R. 62, de l'alinéa premier de l'article R. 63, et de l'article R. 68 du code électoral s'appliquent aux opérations électorales organisées en vue de la désignation des juges des tribunaux de commerce. Pour l'application de ces dispositions, la commission prévue à l'article L. 723-13 est substituée au bureau de vote.
Sous-section 3 : Du vote électronique.
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Article R723-16
Le préfet adresse aux électeurs, en même temps que les documents prévus à l'article R. 723-10, une instruction relative aux modalités d'accès au système de vote électronique auquel l'électeur doit se relier pour voter ainsi que les instruments permettant l'expression du vote selon des modalités garantissant sa confidentialité.
Ces instruments permettent l'authentification de l'électeur et la vérification de l'unicité de son vote selon des exigences de sécurité et des modalités définies par arrêté conjoint du garde des sceaux, ministre de la justice, et du ministre de l'intérieur, pris après avis de la Commission nationale de l'informatique et des libertés.
Article R723-17
Pour voter par voie électronique, l'électeur, après connexion au site internet ou à tout autre réseau accessible à tous les électeurs, s'identifie, exprime son vote et le valide au moyen des instruments d'authentification qui lui ont été attribués. Il vérifie l'inscription sécurisée de son vote par le système de vote électronique. La transmission du vote et l'émargement de l'électeur font l'objet d'un accusé de réception électronique sur lequel figure la date de ladite réception.
Article R723-18
En cas d'utilisation par un même électeur au titre de la même qualité des deux modes de vote, seul le vote électronique est considéré comme valide.
Article R723-19
Le jour du dépouillement des votes, le président de la commission prévue à l'article L. 723-13 imprime la liste d'émargement à partir du traitement "fichier des électeurs".
Le président et l'un des membres de la commission reçoivent du préfet chacun une clé de dépouillement distincte, selon des modalités en garantissant la confidentialité, permettant d'accéder aux données du fichier dénommé "contenu de l'urne électronique". Le président reçoit également les éléments permettant la vérification de l'intégrité du système de vote électronique.
Après clôture des opérations de vote et vérification de l'intégrité du fichier dénommé "contenu de l'urne électronique", le président de la commission prévue à l'article L. 723-13 et le membre de celle-ci mentionné à l'alinéa précédent procèdent publiquement au dépouillement.
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Les décomptes des voix par candidat doivent apparaître lisiblement à l'écran et faire l'objet d'une édition sécurisée qui est portée au procès-verbal de l'élection.
Le système de vote électronique est verrouillé après le dépouillement de sorte qu'il soit impossible de reprendre ou de modifier le résultat après la décision de clôture du dépouillement prise par la commission.
La commission prévue à l'article L. 723-13 vérifie que le nombre total de votes exprimés par voie électronique correspond au nombre de votants figurant sur la liste d'émargement. Mention des difficultés est portée au procès-verbal.
Le nombre total des suffrages exprimés par voie électronique ainsi que le nombre de voix obtenues par chaque candidat sont portés au procès-verbal.
Article R723-20
Les données relatives aux électeurs inscrits sur les listes électorales ainsi que celles relatives à l'expression du vote font l'objet, selon des modalités fixées par arrêté conjoint du garde des sceaux, ministre de la justice, et du ministre de l'intérieur, pris après avis de la Commission nationale de l'informatique et des libertés, de traitements automatisés d'information effectués sur des systèmes informatiques distincts dénommés "fichier des électeurs" et "contenu de l'urne électronique".
Le traitement "fichier des électeurs" est établi à partir des listes électorales dressées par la commission mentionnée à l'article L. 723-3. Le fichier des électeurs permet au préfet d'adresser à chaque électeur les instruments d'authentification mentionnés à l'article R. 723-16, d'identifier les électeurs ayant pris part au vote électronique et d'éditer la liste d'émargement. L'émargement indique l'heure du vote. Les listes d'émargement doivent être enregistrées sur un support distinct de celui de l'urne électronique, scellé, non réinscriptible, rendant son contenu inaltérable et probant.
Le fichier dénommé "contenu de l'urne électronique" recense les votes exprimés par voie électronique. Les données de ce fichier font l'objet d'un chiffrement et ne doivent pas comporter de lien permettant l'identification des électeurs.
Article R723-21
Jusqu'à l'expiration des délais de recours contentieux, les fichiers supports comprenant la copie des programmes sources et des programmes exécutables, les matériels de vote, les fichiers d'émargement, de résultats et de sauvegarde doivent être conservés sous scellés sous le contrôle de la commission prévue à l'article L. 723-13. La procédure de décompte des votes enregistrés doit, si nécessaire, pouvoir être exécutée de nouveau.
A l'expiration des délais de recours, et si aucun recours n'a été exercé, il est procédé à la destruction des fichiers supports sous le contrôle de la commission prévue à l'article L. 723-13.
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Sous-section 4 : De la proclamation des résultats et du contentieux de l'élection des juges consulaires.
Article R723-22
Les votes sont recensés par la commission prévue à l'article L. 723-13. Les résultats sont proclamés publiquement par le président de cette commission. La liste des candidats élus, établie dans l'ordre décroissant du nombre de voix obtenu par chacun d'entre eux, est immédiatement affichée au greffe du tribunal de commerce.
Le procès-verbal des opérations électorales est dressé en trois exemplaires revêtus de la signature des membres de la commission. Le premier exemplaire est adressé au procureur général, le deuxième au préfet et le troisième est conservé au greffe du tribunal de commerce.
Article R723-23
La liste d'émargement signée par le président de la commission prévue à l'article L. 723-13 demeure déposée pendant huit jours au greffe du tribunal de commerce où elle est communiquée à tout électeur qui en fait la demande.
Article R723-24
Les contestations relatives à l'électorat, à l'éligibilité et aux opérations électorales organisées en vue de la désignation des juges des tribunaux de commerce sont de la compétence du tribunal d'instance dans le ressort duquel se trouve situé le siège du tribunal de commerce.
Le tribunal d'instance statue en dernier ressort.
Article R723-25
Les recours mentionnés à l'article R. 723-24 sont ouverts à tout électeur dans un délai de huit jours à compter de la proclamation des résultats.
Le recours est également ouvert au préfet et au procureur de la République qui peuvent l'exercer dans un délai de quinze jours à compter de la réception du procès-verbal mentionné à l'article R. 723-22.
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Article R723-26
Le recours est formé par déclaration orale ou écrite faite, remise ou adressée au greffe du tribunal d'instance. La déclaration indique les nom, prénoms et adresse du requérant, la qualité en laquelle il agit et l'objet du recours. La déclaration mentionne les nom, prénoms et adresse de la ou des personnes dont l'élection est contestée.
Le recours est porté à la connaissance du président du tribunal de commerce et du procureur de la République par le greffe du tribunal d'instance.
Article R723-27
Dans les dix jours du recours, le tribunal d'instance statue sans formalité, sans frais et sur simple avertissement donné trois jours à l'avance à toutes les parties en cause.
Article R723-28
La décision du tribunal d'instance est notifiée dans les trois jours par le greffe aux parties par lettre recommandée avec demande d'avis de réception. Le greffe en donne avis au préfet et au procureur de la République dans le même délai.
La décision du tribunal n'est pas susceptible d'opposition.
Article R723-29
Le pourvoi en cassation est formé et instruit dans les conditions fixées aux articles 999 à 1008 du code de procédure civile. Le délai de pourvoi court à compter de la notification prévue à l' article R. 723- 28.
Article R723-30
Les juges dont l'élection est contestée peuvent valablement prêter serment, être installés et siéger tant qu'il n'a pas été définitivement statué sur le recours.
Article R723-31
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Les délais mentionnés au présent chapitre sont calculés et prorogés dans les conditions fixées aux articles 640 à 647- 1 du code de procédure civile.
Chapitre IV : De la discipline des juges des tribunaux de commerce
Section 1 : De la Commission nationale de discipline.
Article R724-1
La Commission nationale de discipline prévue à l'article L. 724-2 siège à la Cour de cassation. Elle est dénommée Commission nationale de discipline des juges des tribunaux de commerce.
Article R724-2
Les membres titulaires et suppléants de la commission sont désignés tous les quatre ans entre le 21 février et le 31 mars.
Article R724-3
L'année où il est procédé au renouvellement des membres de la commission, les premiers présidents des cours d'appel font connaître, le 15 février au plus tard, au premier président de la Cour de cassation le nom du président de chambre ou du conseiller appartenant à leur cour qu'ils proposent de désigner en application du 2° de l'article L. 724-2.
Article R724-4
L'année où il est procédé au renouvellement des membres de la commission, les présidents des tribunaux de commerce font connaître par écrit, le 15 février au plus tard, au secrétaire de la commission les noms, prénoms, adresses, dates et lieux de naissance des juges appartenant à leur juridiction se portant candidats en application du 3° de l'article L. 724-2.
Le secrétaire de la commission établit la liste des candidatures le 20 février au plus tard et en adresse aussitôt une copie à tous les présidents des tribunaux de commerce.
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Article R724-5
L'élection des membres de la commission mentionnés au 3° de l'article L. 724-2 a lieu à la majorité des bulletins exprimés. En cas d'égalité de suffrages, le plus âgé est proclamé élu.
Le vote a lieu par correspondance. Chaque président de tribunal de commerce doit rédiger son bulletin de vote en y portant le nom de quatre des candidats. Chaque président de tribunal de commerce place ensuite son bulletin dans une enveloppe sur laquelle il porte la mention "Election des membres de la Commission nationale de discipline des juges des tribunaux de commerce". Il revêt cette enveloppe de sa signature après y avoir indiqué ses nom et prénoms et y avoir apposé le timbre de sa juridiction, puis il la place, après l'avoir cachetée, dans une seconde enveloppe qu'il adresse, le 10 mars au plus tard, au secrétaire de la commission.
Article R724-6
Le bureau de la Cour de cassation se réunit entre le 15 et le 31 mars sur convocation du premier président. Il procède au dépouillement du scrutin et classe les candidats dans l'ordre dégressif du nombre de voix obtenu par chacun d'eux. Le premier président proclame élus en qualité de titulaires les quatre candidats en tête de la liste et en qualité de suppléants les quatre candidats qui viennent ensuite.
Le bureau de la Cour de cassation règle les difficultés et les contestations relatives à la préparation et au déroulement du scrutin.
Article R724-7
La liste des membres de la Commission nationale de discipline des membres des tribunaux de commerce est publiée au Journal officiel de la République française à la diligence du premier président de la Cour de cassation.
Les membres de la commission sont installés dans leurs fonctions par le premier président de la Cour de cassation entre le 10 et le 20 avril suivant leur désignation ou leur élection.
Article R724-8
Le membre de la commission qui désire résilier son mandat adresse sa démission au garde des sceaux, ministre de la justice. La démission n'est définitive qu'après acceptation par le ministre.
Article R724-9
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Le secrétariat de la commission est assuré par le secrétaire général de la première présidence de la Cour de cassation.
Article R724-10
La date et l'ordre du jour des séances de la commission sont fixés par ordonnance du président de la commission. Une copie de l'ordonnance est adressée au garde des sceaux, ministre de la justice, et est jointe à la convocation adressée par le secrétaire de la commission.
Le procès-verbal des séances est signé du président et du secrétaire de la commission.
Section 2 : De la procédure disciplinaire.
Article R724-11
Lorsqu'il saisit la commission en application des articles L. 724-3, L. 724-4 ou R. 724-20, le garde des sceaux, ministre de la justice, transmet au président de la commission toutes les pièces afférentes à la poursuite.
Article R724-12
Dès la saisine de la commission, le juge poursuivi en est informé par lettre recommandée avec demande d'avis de réception du secrétaire de la commission, qui lui précise qu'il peut prendre connaissance, au secrétariat de la commission, des pièces afférentes à la poursuite.
Le président de la commission désigne parmi les membres de la commission un rapporteur, qui procède à toutes investigations utiles. Le rapporteur entend l'intéressé et, s'il y a lieu, le plaignant et les témoins. Il peut les faire entendre par un magistrat du siège de la cour d'appel auquel il donne délégation.
Article R724-13
Le juge poursuivi peut se faire assister par l'un de ses pairs, par un avocat au Conseil d'Etat et à la Cour de cassation ou par un avocat inscrit à un barreau.
Le dossier de la procédure doit être mis à la disposition de l'intéressé et de son conseil quarante-huit heures au moins avant chaque séance de la commission ou chaque audition par le rapporteur ou son
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délégué du juge poursuivi. Celui-ci peut à tout moment de la procédure verser aux débats les pièces qu'il estime utiles et déposer des mémoires en défense.
Article R724-14
Le juge poursuivi est cité à comparaître devant la commission par lettre recommandée avec demande d'avis de réception par le secrétaire de la commission.
Article R724-15
Le juge poursuivi est tenu de comparaître en personne. Toutefois, il peut être autorisé en cas de maladie ou d'empêchement reconnu justifié à se faire représenter par le conseil qu'il a choisi en application de l'article R. 724-13.
Article R724-16
Après lecture du rapport et après audition du représentant du garde des sceaux, ministre de la justice, le juge poursuivi est invité à fournir ses explications et moyens de défense sur les faits qui lui sont reprochés.
Article R724-17
Les débats devant la commission sont publics. Toutefois, celle-ci peut décider que les débats ne seront pas publics si le juge poursuivi en fait expressément la demande ou s'il doit résulter de leur publicité une atteinte à un secret protégé par la loi ou à l'intimité de la vie privée.
Article R724-18
Lorsqu'il est saisi en application de l'article L. 724-4, le président de la commission statue par ordonnance rendue dans les dix jours de sa saisine. La décision du président est immédiatement exécutoire.
Article R724-19
Les décisions de la commission rendues en application des articles L. 724- 1, L. 724- 3 et R. 724-
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20, et les ordonnances de son président rendues en application de l' article L. 724- 4 sont notifiées par lettre recommandée avec demande d' avis de réception du secrétaire de la commission.
Le délai de pourvoi est de dix jours à compter de la date de réception de la lettre de la notification. Le pourvoi est formé et instruit conformément aux dispositions des articles 974 à 982 du code de procédure civile. Il est porté devant l' assemblée plénière de la Cour de cassation.
Article R724-20
La commission peut, sur proposition du garde des sceaux, ministre de la justice, retirer l'honorariat à un ancien juge d'un tribunal de commerce dans les conditions fixées aux articles L. 724-1, L. 724-3, L. 724-5, L. 724-6, R. 724-11 à R. 724-17 et R. 724-19.
Le président de la commission peut aussi, dans les conditions fixées aux articles L. 724-4, R. 724-18 et R. 724-19, interdire temporairement à un ancien membre d'un tribunal de commerce de se prévaloir de l'honorariat.
Les dispositions des deux alinéas qui précèdent ne sont pas applicables lorsque l'intéressé renonce définitivement à se prévaloir de l'honorariat par une déclaration écrite qu'il adresse au garde des sceaux, ministre de la justice, ou au président de la Commission nationale de discipline des juges des tribunaux de commerce si celle-ci est déjà saisie.
Article R724-21
Les délais mentionnés au présent chapitre sont comptés dans les conditions fixées aux articles 641 à 647- 1 du code de procédure civile.
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Partie réglementaire
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce.
TITRE III : Des juridictions commerciales particulières.
Chapitre Ier : Des dispositions applicables aux départements du Bas-Rhin, du Haut-Rhin et de la Moselle.
Article D731-1
Les tribunaux de grande instance de Colmar, Metz, Mulhouse, Sarreguemines, Saverne, Strasbourg et Thionville ont des chambres commerciales.
Article D731-2
Le président de la chambre commerciale du tribunal de grande instance est désigné conformément aux règles qui régissent la répartition des magistrats du siège dans les chambres du tribunal.
Article D731-3
Le nombre des assesseurs de chambre commerciale des tribunaux de grande instance des départements du Bas-Rhin, du Haut-Rhin et de la Moselle est fixé conformément au tableau de l'annexe 7-4 du présent livre.
Article R731-4
Les assesseurs des chambres commerciales sont élus dans les conditions fixées aux articles R. 723-1 à R. 723-31.
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Article R731-5
Les dispositions des articles R. 722-7, R. 722-10, R. 722-18 à R. 722-20 et R. 724-1 à R. 724-21 sont applicables aux assesseurs des chambres commerciales.
Chapitre II : Des dispositions applicables aux départements et régions d'outre-mer.
Article D732-1
Le siège et le ressort des tribunaux mixtes de commerce sont fixés conformément au tableau de l'annexe 7-3 du présent livre.
Article D732-2
Le nombre des juges élus des tribunaux mixtes de commerce des départements et régions d'outre-mer est fixé conformément au tableau de l'annexe 7-4 du présent livre.
Article R732-3
Les juges des tribunaux mixtes de commerce sont élus dans les conditions fixées aux articles R. 723-1 à R. 723-31.
Article R732-4
Les dispositions des articles R. 722-7, R. 722-10, R. 722-18 à R. 722-20 et R. 724-1 à R. 724-21 sont applicables aux juges élus des tribunaux mixtes de commerce.
Article R732-5
Les dispositions de l'article R. 721-6 sont applicables au tribunal mixte de commerce.
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Article R732-6
Les dispositions du présent livre sur le greffe du tribunal de commerce à l'exception de celles de la section 3 du chapitre III du titre IV du présent livre ne sont pas applicables dans les départements et régions d'outre-mer.
Un greffier en chef ou un secrétaire-greffier du ressort du tribunal de grande instance assure le secrétariat du tribunal mixte de commerce.
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Partie réglementaire
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce.
TITRE IV : Du greffe du tribunal de commerce.
Chapitre Ier : De l'institution et des missions
Section 1 : Dispositions générales.
Article R741-1
Le greffier assiste les juges du tribunal de commerce à l'audience et dans tous les cas prévus par la loi.
Il assiste le président du tribunal de commerce dans l'ensemble des tâches administratives qui lui sont propres. Il assure son secrétariat.
Il l'assiste dans l'établissement et l'application du règlement intérieur de la juridiction, dans l'organisation des rôles d'audiences et la répartition des juges, dans la préparation du budget et la gestion des crédits alloués à la juridiction. Il procède au classement des archives du président.
Dans les tribunaux de commerce dont la liste est fixée par arrêté du garde des sceaux, ministre de la justice, le greffier, en accord avec le président, affecte en permanence aux tâches prévues aux deuxième et troisième alinéas du présent article un ou plusieurs agents du greffe. Leur nombre, dans chaque juridiction, est fixé par le même arrêté.
Le ou les agents du greffe ainsi désignés sont placés sous la seule autorité fonctionnelle du président ; ils sont soumis aux règles applicables au personnel des greffes.
Article R741-2
Le greffier dirige, sous l'autorité du président du tribunal et sous la surveillance du ministère public, l'ensemble des services du greffe.
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Il assure la tenue des différents registres prévus par les textes en vigueur et tient à jour les dossiers du tribunal. Il met en forme les décisions prises et motivées par les juges.
Il est dépositaire des minutes et archives dont il assure la conservation. Il délivre les expéditions et copies et a la garde des scellés et de toutes sommes déposées au greffe.
Il dresse les actes de greffe et procède aux formalités pour lesquelles compétence lui est attribuée.
Il prépare les réunions du tribunal, dont il rédige et archive les procès-verbaux.
Il tient à jour la documentation générale du tribunal.
Il assure l'accueil du public.
Article R741-3
Le greffier assure la tenue du répertoire général des affaires de la juridiction.
Il applique les instructions de tenue du répertoire général élaborées par le ministère de la justice.
Il transmet les informations statistiques demandées par le ministre de la justice selon les modalités déterminées par celui-ci.
Article R741-4
Lorsqu'un centre de formalités des entreprises a été créé par une chambre de commerce et d'industrie ou une chambre de métiers et de l'artisanat, le greffier peut, à la demande de la chambre de commerce et d'industrie ou de la chambre de métiers et de l'artisanat, être autorisé par arrêté du garde des sceaux, ministre de la justice, à exercer tout ou partie des activités dévolues aux centres de formalités des entreprises par les articles R. 123-1 et suivants lorsque, dans l'intérêt des usagers, l'ouverture d'une annexe de ces centres apparaît nécessaire dans la ville où la juridiction commerciale a son siège.
En vue de cette autorisation, le greffier soumet au garde des sceaux, ministre de la justice, une convention conclue avec la chambre de commerce ou de métiers et de l'artisanat déterminant les droits et obligations de chacune des parties. Cette convention doit être approuvée par arrêté conjoint des ministres chargés de l'industrie, du commerce et de l'artisanat.
L'autorisation peut être révoquée par le garde des sceaux, ministre de la justice, notamment lorsque l'exercice de ces activités nuit à l'accomplissement par le greffier de ses obligations ou donne lieu à des réclamations justifiées.
Article R741-5
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Les copies délivrées par les greffiers relatives aux inscriptions portées aux registres de publicité légale dont ils ont la charge peuvent être diffusées par voie électronique dans les conditions prévues au présent article :
a) Les informations sont diffusées directement par le greffe compétent. Toutefois, les greffiers peuvent s'associer au sein d'un groupement ayant soit l'une des formes autorisées par l'article L. 743-12, soit une forme associative. Ce groupement est chargé de centraliser les appels et de les orienter vers le greffe concerné. Les greffiers peuvent, dans les mêmes conditions, conclure aux mêmes fins des accords avec l'Institut national de la propriété industrielle pour les attributions de celui-ci ;
b) Les informations ne portent que sur les inscriptions figurant, en application des textes législatifs et réglementaires, aux registres dont les greffiers assurent la tenue ;
c) Les informations sont délivrées telles qu'inscrites aux registres ou sur les actes annexés, sans subir de traitement quelconque, sous réserve des dispositions prévues par l'acte réglementaire pris en application de la loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés.
Article R741-6
Les costumes des greffiers en chef et greffiers sont définis ainsi qu'il suit :
a) Greffier : même costume que les juges consulaires, sans galon à la toque ;
b) Commis-greffier assermenté : robe noire sans simarre et toque noire.
Section 2 : De la modification du ressort des juridictions commerciales.
Article R741-7
En cas de modification du ressort de deux ou plusieurs juridictions commerciales et sous réserve des dispositions des articles R. 743-162 à R. 743-177, le greffier du tribunal antérieurement compétent conserve les minutes, registres, actes, pièces et documents déposés à son greffe avant la modification du ressort. Il a seul qualité pour en délivrer expédition, copie ou extrait en mentionnant toutefois la date de modification du ressort et le tribunal désormais compétent.
Article R741-8
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Jusqu'à l'expiration du délai légal de communication aux tiers, lorsque le greffier du tribunal désormais compétent délivre des expéditions, copies ou extraits de minutes, registres, actes, pièces et documents concernant des personnes physiques ou morales dont le domicile ou dont le siège est situé dans les cantons, communes ou sections de communes précédemment compris dans le ressort d'un autre tribunal, il mentionne sur ces expéditions, copies ou extraits le tribunal antérieurement compétent et la date de modification du ressort.
Article R741-9
En cas de suppression d'une juridiction commerciale, les minutes, registres, actes, pièces et documents déposés au greffe de la juridiction supprimée sont transférés au greffe de la ou des juridictions commerciales désormais compétentes.
Les frais de transfert sont pris en charge par l'Etat.
Section 3 : Du Conseil national des greffiers des tribunaux de commerce.
Article R741-10
Le Conseil national des greffiers des tribunaux de commerce est composé de membres élus par les greffiers des tribunaux de commerce.
Dans chaque cour d'appel, les greffiers des tribunaux de commerce élisent un membre du Conseil national lorsque le nombre de greffiers exerçant dans le ressort de cette cour excède cinq. Dans le cas contraire, le membre du Conseil national est élu par un collège composé des greffiers du ressort de la cour d'appel et de ceux exerçant dans un ressort de cour d'appel voisin, désigné par arrêté du garde des sceaux, ministre de la justice, après avis du Conseil national.
Les membres du Conseil national sont élus par moitié tous les deux ans pour quatre ans et renouvelables une fois ; ils ne sont rééligibles que quatre ans après l'expiration de leur deuxième mandat.
Après chaque renouvellement partiel, le Conseil national désigne en son sein, pour deux ans, les membres de sa formation disciplinaire, lesquels élisent leur président.
Article R741-11
Chaque personne physique exerçant la profession de greffier de tribunal de commerce en activité est
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électeur et éligible dès sa prestation de serment. Elle cesse de l'être en cas de destitution ou de démission.
Article R741-12
L'organisation des élections est confiée au bureau du Conseil national qui, avant le 15 septembre, fixe la date d'ouverture du scrutin dans la deuxième quinzaine du mois de novembre précédant la date du renouvellement partiel du Conseil national et en assure la publicité. Dès cette fixation, le président avise les électeurs de la date et des modalités des opérations électorales, ainsi que de la date et du lieu des opérations de dépouillement.
Article R741-13
Les déclarations de candidature sont remises contre récépissé, ou adressées par lettre recommandée avec demande d'avis de réception, au plus tard un mois avant la date d'ouverture du scrutin, au président du Conseil national.
Quinze jours au plus tard avant la date d'ouverture du scrutin, le président adresse à chaque électeur et pour chaque candidat un bulletin de vote comprenant le nom et le prénom du candidat, le nom du greffe dont il est titulaire, et éventuellement la mention "investi par" suivie du nom ou des initiales de l'organisation professionnelle ou du syndicat auquel il appartient à condition qu'il justifie lors de sa déclaration de candidature de l'autorisation expresse de cette organisation ou de ce syndicat.
Article R741-14
L'élection des membres du Conseil national a lieu au scrutin uninominal majoritaire à un tour.
Le vote a lieu par correspondance. Les bulletins doivent parvenir au président du Conseil national dans les dix jours à compter de la date d'ouverture du scrutin ; à l'issue de cette période, le scrutin est clos.
Chaque bulletin est envoyé sous double enveloppe ; l'enveloppe intérieure, qui contient le bulletin de vote, doit être fermée et ne porter aucune marque distinctive ; l'enveloppe extérieure comportant la mention "élections" porte le nom et la signature de l'électeur et contient l'enveloppe intérieure et une copie d'une pièce d'identité ; les bulletins contenus dans des enveloppes irrégulières sont nuls ; il en est de même de tout bulletin raturé, modifié ou surchargé.
Au fur et à mesure de leur arrivée, les enveloppes extérieures sont placées dans une urne ; après la clôture du scrutin, le bureau du Conseil national procède aux opérations de dépouillement en présence de tout greffier de tribunal de commerce désirant y assister. Après leur retrait de l'urne, les enveloppes extérieures sont ouvertes, le nom de l'électeur est pointé sur la liste des électeurs et l'enveloppe intérieure réintroduite dans l'urne ; lorsque toutes les enveloppes intérieures ont été
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replacées, les bulletins sont dépouillés et décomptés.
Les résultats sont aussitôt proclamés et un procès-verbal des opérations est établi par le président du Conseil national.
Article R741-15
Les candidats ayant obtenu pour chaque siège le plus grand nombre de suffrages sont proclamés élus.
En cas d'égalité entre plusieurs candidats ayant obtenu le plus grand nombre de suffrages, le plus âgé est proclamé élu.
Article R741-16
Tout greffier de tribunal de commerce peut déférer l'élection des membres du Conseil national à la cour d'appel de Paris dans un délai de dix jours à compter de la proclamation des résultats. Le recours est déposé contre récépissé ou adressé par lettre recommandée avec demande d'avis de réception, au greffier en chef de la cour d'appel ; il est instruit et jugé selon les règles applicables à la procédure sans représentation obligatoire.
Article R741-17
Les membres du Conseil national élisent en leur sein, au scrutin uninominal majoritaire à un tour et pour une période de deux ans, un président, un vice-président et cinq membres, qui constituent le bureau. En cas d'égalité des voix, le plus âgé des candidats est proclamé élu.
Article R741-18
Si un membre du Conseil national cesse ses fonctions avant l'expiration de son mandat, il est pourvu à son remplacement dans le délai de trois mois ; les fonctions du nouveau membre prennent fin lorsque auraient cessé celles du membre qu'il a remplacé.
Le mandat du président, du vice-président et des membres du bureau prend fin lorsque l'intéressé cesse de remplir les conditions pour être membre du Conseil national.
Article R741-19
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Les fonctions de membre du Conseil national sont gratuites. Elles ne peuvent donner lieu qu'au remboursement de frais de voyage et de séjour dans les conditions fixées chaque année par le Conseil national.
Le président, le vice-président et les membres du bureau peuvent percevoir, pour frais de représentation, une indemnité dont le montant est fixé par le Conseil national.
Article R741-20
Le Conseil national ne peut délibérer et voter que si deux tiers au moins de ses membres sont présents. En cas de partage égal des voix, celle du président est prépondérante.
Article R741-21
Le Conseil national établit son règlement intérieur régissant son mode de fonctionnement et celui du bureau ; il fixe les pouvoirs du président, du vice-président et du bureau.
Article R741-22
Le Conseil national établit son budget. Il fixe le montant de la cotisation que doit lui verser annuellement chaque greffier de tribunal de commerce. Le non-paiement des cotisations constitue une faute disciplinaire.
Article R741-23
Le Conseil national est chargé notamment d'organiser la formation initiale, les examens professionnels et la formation permanente des greffiers des tribunaux de commerce ainsi que, le cas échéant, la formation de leur personnel.
Il a également pour mission d'aider les candidats stagiaires à se mettre en relation avec les greffiers des tribunaux de commerce et de faciliter l'obtention et la mise en oeuvre des stages et d'en assurer le suivi.
Article D741-24
Le Conseil national pourvoit par le biais d'une bourse commune au financement de services d'intérêts collectifs dans les domaines suivants :
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- formation et documentation de la profession ;
- fonctionnement des services communs ;
- archivage ;
- informatique et télématique de la profession ;
- fichiers centraux ;
- communication ;
- recherche et développement.
Le montant de la participation au financement des services d'intérêts collectifs est calculé selon une formule et un nombre de parts déterminés respectivement au tableau n° 1 et au tableau n° 2 figurant à l'annexe 7-4-1 du présent livre.
Un arrêté détermine chaque année le taux de référence (tr %) en fonction du budget appelé par le Conseil national des greffiers des tribunaux de commerce.
Chapitre II : Des conditions d'accès à la profession et aux autres professions judiciaires et juridiques
Section 1 : Des conditions d'accès à la profession de greffier de tribunal de commerce
Sous-section 1 : Des conditions d'aptitude
Paragraphe 1 : Des conditions générales.
Article R742-1
Nul ne peut avoir vocation à exercer la profession de greffier de tribunal de commerce s'il ne remplit les conditions suivantes :
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1° Etre français ;
2° Avoir satisfait aux obligations du service national ;
3° N'avoir pas fait l'objet d'une condamnation pénale pour des agissements contraires à l'honneur, à la probité ou aux bonnes moeurs ;
4° N'avoir pas fait l'objet d'une sanction disciplinaire ou administrative de destitution, radiation, révocation, mise à la retraite d'office, de retrait d'agrément ou d'autorisation ;
5° N'avoir pas été frappé de faillite personnelle ou de l'interdiction prévue à l'article L. 653-8 ;
6° Etre titulaire, sous réserve des dispenses prévues aux articles R. 742-2, R. 742-3, R. 742-4 et R. 742-6 de la maîtrise en droit ou de l'un des titres ou diplômes reconnus équivalents pour l'exercice de la profession de greffier de tribunal de commerce par arrêté du garde des sceaux, ministre de la justice ;
7° Avoir accompli un stage dans les conditions prévues aux articles R. 742-7 à R. 742-15, sous réserve des dispenses prévues aux articles R. 742-2, R. 742-3, R. 742-4, et R. 742-6 ;
8° Avoir subi avec succès l'examen d'aptitude prévu à l'article R. 742-16, sous réserve des dispenses prévues aux articles R. 742-2, R. 742-3, R. 742-4 et R. 742-6.
Article R742-2
Sont dispensées des conditions de diplôme et de stage prévues aux 6° et 7° de l'article R. 742-1 les personnes ayant exercé dans un greffe de tribunal de commerce, pendant dix ans au moins, des fonctions de responsabilité impliquant délégation de tout ou partie des pouvoirs du titulaire de l'office.
Sont dispensées de la condition de stage prévue au 7° de l'article R. 742-1 et peuvent être dispensées de la condition d'examen d'aptitude prévue au 8° de l'article R. 742-1, par décision du procureur général près la cour d'appel dans le ressort de laquelle est établi leur domicile, prise après avis du bureau du Conseil national des greffiers des tribunaux de commerce, les personnes pouvant justifier de dix ans d'expérience professionnelle, dont cinq ans au moins à des fonctions de responsabilité au sein d'un greffe de tribunal de commerce impliquant délégation de tout ou partie des pouvoirs du titulaire de l'office.
Article R742-3
I. - Sont dispensés de la condition de diplôme prévue au 6° de l'article R. 742-1 et peuvent être dispensés par décision du procureur général près la cour d'appel dans le ressort de laquelle est établi leur domicile, prise après avis du bureau du Conseil national des greffiers des tribunaux de
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commerce, de l'examen prévu au 8° de l'article R. 742-1 :
1° Les anciens magistrats de l'ordre judiciaire régis par l'ordonnance n° 58-1270 du 22 décembre 1958 portant loi organique relative au statut de la magistrature ;
2° Les anciens avocats précédemment inscrits au tableau, les anciens avoués près les cours d'appel et les anciens avocats à la Cour de cassation et au Conseil d'Etat ayant exercé leurs fonctions pendant cinq ans au moins ;
3° Les anciens notaires, les anciens huissiers de justice, les anciens commissaires-priseurs judiciaires ayant exercé leurs fonctions pendant cinq ans au moins ;
4° Les personnes ayant été inscrites pendant cinq ans au moins sur une liste de conseils juridiques ;
5° Les anciens syndics et administrateurs judiciaires, les anciens administrateurs judiciaires et mandataires liquidateurs ayant exercé leurs fonctions pendant trois ans au moins ;
6° Les anciens fonctionnaires de la catégorie A ou les personnes assimilées aux fonctionnaires de cette catégorie ayant exercé pendant cinq ans au moins des activités juridiques ou fiscales dans une administration ou un service public.
II. - Peuvent également être dispensées de l'examen prévu au 8° de l'article R. 742-1, par décision du procureur général près la cour d'appel dans le ressort de laquelle est établi leur domicile, prise après avis du bureau du Conseil national des greffiers des tribunaux de commerce, les personnes ayant accompli huit années au moins d'exercice professionnel dans le service juridique d'une entreprise publique ou privée employant au moins trois juristes.
Article R742-4
Peuvent être nommées greffiers de tribunal de commerce sans remplir les conditions de diplômes, de stage ou d'examen professionnel prévues à l'article R. 742-1 les personnes qui ont suivi avec succès un cycle d'études postsecondaires d'une durée minimale de trois ans, ou d'une durée équivalente à temps partiel dans une université ou un établissement d'enseignement supérieur ou dans un autre établissement d'un niveau équivalent de formation et, le cas échéant, la formation professionnelle requise en plus de ce cycle d'études postsecondaires et qui justifient :
1° De diplômes, certificats ou autres titres permettant l'exercice de la profession dans un Etat membre de la Communauté européenne ou dans un autre Etat partie à l'accord sur l'Espace économique européen délivrés :
a) Soit par l'autorité compétente de cet Etat et sanctionnant une formation acquise de façon prépondérante dans l'Espace économique européen ;
b) Soit par un pays tiers, à condition que soit fournie une attestation émanant de l'autorité
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compétente de l'Etat membre ou partie qui a reconnu les diplômes, certificats ou autres titres certifiant que leur titulaire a une expérience professionnelle de trois ans au moins dans cet Etat ;
2° Ou de l'exercice à plein temps de la profession pendant deux ans au moins au cours des dix années précédentes dans un Etat membre ou partie qui ne réglemente pas l'accès ou l'exercice de cette profession à condition que cet exercice soit attesté par l'autorité compétente de cet Etat. Toutefois, la condition d'une expérience professionnelle de deux ans n'est pas exigée lorsque le ou les titres de formation détenus par le demandeur sanctionnent une formation réglementée directement orientée vers l'exercice de la profession.
Article R742-5
Sauf si les connaissances qu'il a acquises au cours de son expérience professionnelle sont de nature à rendre cette vérification inutile, la personne concernée par les dispositions de l'article R. 742-4 subit devant le jury prévu à l'article R. 742-17 un examen d'aptitude dont le programme et les modalités sont fixés par arrêté du garde des sceaux, ministre de la justice, après avis du Conseil national des greffiers des tribunaux de commerce :
1° Lorsque sa formation porte sur des matières substantiellement différentes de celles qui figurent aux programmes des diplômes et des examens professionnels mentionnés à l'article R. 742-1 ;
2° Ou lorsqu'une ou plusieurs des activités professionnelles dont l'exercice est subordonné à la possession de ces diplômes et de cet examen ne sont pas réglementées dans l'Etat membre d'origine ou de provenance ou sont réglementées de manière différente et que cette différence est caractérisée par une formation spécifique requise dans l'Etat membre d'accueil portant sur des matières substantiellement différentes de celles couvertes par le diplôme dont le demandeur fait état.
La liste des candidats admis à se présenter à cet examen est, après avis du bureau du Conseil national des greffiers des tribunaux de commerce, arrêtée par le garde des sceaux, ministre de la justice. Sa décision précise, le cas échéant, les matières sur lesquelles les candidats doivent être interrogés compte tenu de leur formation initiale et de leur expérience professionnelle.
Nul ne peut se présenter plus de trois fois à l'examen d'aptitude.
Article R742-6
Les courtiers, interprètes et conducteurs de navires bénéficiant des dispositions prévues à l'article 5 de la loi n° 2001-43 du 16 janvier 2001 portant diverses dispositions d'adaptation au droit communautaire dans le domaine des transports peuvent être dispensés, par décision du procureur général près la cour d'appel dans le ressort de laquelle est établi leur domicile, après avis du Conseil national des greffiers des tribunaux de commerce, d'une partie du stage prévu au 7° de l'article R. 742-1, dans la limite de la moitié de sa durée, et de certaines épreuves de l'examen d'aptitude prévu au 8° de l'article R. 742-1.
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Paragraphe 2 : Du stage.
Article R742-7
Le stage de formation à la profession de greffier de tribunal de commerce est réservé aux personnes titulaires de l'un des titres ou diplômes prévus au 6° de l'article R. 742-1 et à celles mentionnées à l'article R. 742-3.
Article R742-8
La durée du stage est d'un an. Elle est réduite à six mois pour les personnes mentionnées à l'article R. 742-3.
Article R742-9
Le stage est accompli auprès du greffier d'un tribunal de commerce ou d'un tribunal de grande instance à compétence commerciale.
Lorsque la durée du stage est d'un an, celui-ci peut être accompli pour une période d'au moins neuf mois selon les modalités prévues au premier alinéa du présent article et pour une période n'excédant pas trois mois soit auprès d'un avocat, d'un avoué, d'un conseil juridique, d'un expert-comptable, d'un administrateur judiciaire, d'un mandataire liquidateur, d'un notaire, d'un huissier de justice ou d'un commissaire-priseur judiciaire, soit auprès d'une administration publique ou dans le service juridique ou fiscal d'une entreprise.
Article R742-10
Le stagiaire participe à l'activité professionnelle du maître de stage sous la direction et la responsabilité de celui-ci, sans pouvoir se substituer à lui dans les actes de sa fonction.
Le stage doit correspondre à la durée normale du travail telle qu'elle résulte des règlements, conventions collectives, accords ou usages en vigueur pour la catégorie professionnelle considérée. La rémunération du stagiaire est fixée conformément à ces mêmes règlements, conventions collectives, accords ou usages, sous réserve des dispositions du code du travail relatives à la promotion individuelle et au congé de formation des salariés.
Le stage peut être accompli à mi-temps. La période ainsi accomplie ne compte que pour la moitié de sa durée.
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Article R742-11
Le Conseil national des greffiers des tribunaux de commerce tient un registre sur lequel est inscrit le nom du stagiaire, le nom du ou des maîtres de stage, les dates de commencement et de fin de stage.
Le Conseil national peut refuser l'inscription du stagiaire sur le registre du stage s'il estime que l'activité professionnelle du maître de stage ne permet pas au stagiaire d'acquérir l'expérience professionnelle définie à l'article R. 742-9. Ce refus peut être déféré à la cour d'appel de Paris dans le délai d'un mois à compter de sa notification à l'intéressé par lettre recommandée avec demande d'avis de réception.
Article R742-12
Les procureurs généraux peuvent à tout moment se faire communiquer copie du registre du stage.
Le stagiaire avise le Conseil national de tout changement dans les conditions d'accomplissement du stage.
Article R742-13
Le stagiaire cesse d'être inscrit sur le registre du stage soit à sa demande, soit après avoir subi avec succès l'examen d'aptitude aux fonctions de greffier de tribunal de commerce.
Article R742-14
Le stagiaire est radié du registre du stage par décision du Conseil national des greffiers des tribunaux de commerce :
1° S'il fait l'objet d'une condamnation pénale pour des faits contraires à l'honneur ou à la probité ;
2° S'il interrompt son stage pendant plus d'un an sans motif valable ;
3° S'il a subi trois échecs à l'examen d'aptitude prévu à l'article R. 742-16.
Le stagiaire peut être radié :
1° S'il méconnaît gravement les obligations du stage ou s'il commet des faits contraires à l'honneur
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ou à la probité ;
2° S'il s'abstient, sans motif valable, pendant plus de deux ans après l'accomplissement du temps de stage requis, de subir les épreuves de l'examen d'aptitude prévu à l'article R. 742-16 ;
3° S'il s'abstient, sans motif valable, pendant plus de deux ans, de subir à nouveau ces épreuves après un échec à l'examen d'aptitude.
Les décisions de radiation, prises après que l'intéressé a été mis en mesure de présenter ses observations, peuvent être déférées dans les deux mois à la cour d'appel de Paris par l'intéressé par lettre recommandée avec demande d'avis de réception.
Article R742-15
Le stage qui a été régulièrement accompli donne lieu à la délivrance d'une attestation établie par le maître de stage, y compris dans le cas prévu au second alinéa de l'article R. 742-9. Ce document précise la durée de la formation, la nature des tâches effectuées par le stagiaire ainsi que les modalités de sa rémunération, et comporte les appréciations du maître de stage sur le stagiaire et sur la qualité de son travail ; il est communiqué au stagiaire, qui certifie en avoir pris connaissance et peut, le cas échéant, apporter ses observations. Il est ensuite transmis par le maître de stage au Conseil national, qui délivre le certificat de fin de stage.
Le refus de délivrance du certificat peut être déféré à la cour d'appel de Paris dans le délai de deux mois à compter de sa notification à l'intéressé par lettre recommandée avec demande d'avis de réception.
Paragraphe 3 : De l'examen d'aptitude.
Article R742-16
L'examen d'aptitude à la profession de greffier de tribunal de commerce a lieu au moins une fois par an.
Le programme et les modalités de l'examen, qui comporte des épreuves écrites et orales, théoriques et pratiques, sont fixés par arrêté du garde des sceaux, ministre de la justice après avis du Conseil national des greffiers des tribunaux de commerce.
La liste des personnes admises à subir les épreuves de l'examen est arrêtée par le garde des sceaux, ministre de la justice. Seuls peuvent se présenter à l'examen les candidats qui sont titulaires de l'un des diplômes mentionnés au 6° de l'article R. 742-1 et qui ont en outre accompli le temps de stage requis attesté par un certificat ; toutefois, le stagiaire peut être autorisé par le garde des sceaux, ministre de la justice, à subir les épreuves au cours des trois derniers mois de stage.
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Nul ne peut se présenter plus de trois fois à l'examen d'aptitude.
Article R742-17
L'examen d'aptitude est subi devant un jury national qui choisit les sujets des épreuves.
Le jury est composé de deux magistrats de l'ordre judiciaire et de deux greffiers de tribunal de commerce en activité ou honoraires. La présidence est assurée par le magistrat le plus ancien dans le grade le plus élevé.
En cas de partage égal des voix, celle du président est prépondérante.
Le président et les membres du jury sont désignés par arrêté du garde des sceaux, ministre de la justice, pour une période de trois ans renouvelable une fois après avis, en ce qui concerne les deux greffiers de tribunal de commerce, du bureau du Conseil national des greffiers des tribunaux de commerce. Des suppléants sont désignés en nombre égal, dans les mêmes conditions.
Des examinateurs spécialisés peuvent être désignés par arrêté du garde des sceaux, ministre de la justice, pour assister le jury.
Sous-section 2 : De la nomination.
Article R742-18
Lorsqu'il est créé un tribunal de commerce, le greffier de ce tribunal est nommé par le garde des sceaux, ministre de la justice, sur proposition d'une commission dont la composition est fixée à l'article R. 742-19.
Article R742-19
La commission instituée à l'article R. 742-18 est composée ainsi qu'il suit :
1° Un magistrat du premier grade de la hiérarchie judiciaire, président ;
2° Un autre magistrat de l'ordre judiciaire ;
3° Un membre des tribunaux de commerce ;
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4° Deux greffiers de tribunaux de commerce ;
5° Une personne remplissant les conditions d'aptitude pour être nommée greffier de tribunal de commerce.
Les membres de la commission sont désignés par arrêté du garde des sceaux, ministre de la justice, sur la proposition, en ce qui concerne les greffiers des tribunaux de commerce, du Conseil national des greffiers des tribunaux de commerce.
Des suppléants sont désignés en nombre égal dans les mêmes conditions.
Le secrétariat de la commission est assuré par un magistrat ou un fonctionnaire de la catégorie A.
En cas de partage égal des voix, celle du président est prépondérante.
Article R742-20
Le garde des sceaux, ministre de la justice, fixe par arrêté la date limite du dépôt des candidatures à l'office. Le délai imparti aux candidats ne peut être inférieur à trente jours à compter de la publication de l'arrêté au Journal officiel.
Article R742-21
Chaque candidature est adressée, par lettre recommandée avec demande d'avis de réception, au procureur général près la cour d'appel dans le ressort de laquelle est situé le tribunal de commerce créé.
Le procureur général fait procéder à une enquête sur la moralité et les capacités professionnelles des candidats ainsi que sur leurs capacités financières au regard des obligations qui leur incombent. Après avoir recueilli l'avis motivé du bureau du Conseil national des greffiers des tribunaux de commerce dans les conditions prévues à l'article R. 742-28, il transmet le dossier au garde des sceaux, ministre de la justice, avec son avis motivé.
Article R742-22
Pour chaque office à pourvoir, la commission propose les candidats au choix du garde des sceaux, ministre de la justice, en établissant un ordre de préférence.
Article R742-23
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En l'absence de candidature, ou si aucun candidat n'est proposé par la commission, le garde des sceaux, ministre de la justice, peut, dans les conditions prévues à l'article R. 742-20, ouvrir un nouveau délai pour le dépôt des candidatures. Celles-ci sont présentées et instruites, conformément aux dispositions des articles R. 742-21 et R. 742-22.
Ces dispositions sont également applicables si le garde des sceaux, ministre de la justice, ne retient aucun des candidats proposés par la commission.
Lorsque le candidat nommé est déclaré démissionnaire en application de l'article R. 742-31, le garde des sceaux, ministre de la justice, peut nommer un autre candidat proposé par la commission prévue à l'article R. 742-18. A défaut d'acceptation, de l'intéressé, ou s'il ne nomme aucun des candidats proposés, le garde des sceaux, ministre de la justice, peut ouvrir une nouvelle procédure dans les conditions définies aux articles R. 742-21 et R. 742-22.
Article R742-24
Lorsqu'un office de greffier de tribunal de commerce ne peut être pourvu par l'exercice du droit de présentation, cet office est déclaré vacant par décision du garde des sceaux, ministre de la justice, et il y est pourvu dans les conditions prévues aux articles R. 742-20 à R. 742-23.
Les candidats doivent s'engager à payer l'indemnité fixée par le garde des sceaux, ministre de la justice.
Article R742-25
Le greffier d'un tribunal de commerce supprimé est nommé greffier d'un tribunal de commerce créé sans qu'il y ait lieu de recourir à la procédure prévue aux articles R. 742-18 à R. 742-23, dans les hypothèses suivantes :
1° Lorsque le tribunal de commerce créé a le même ressort que le tribunal supprimé, la modification affectant seulement la commune siège du tribunal ;
2° Lorsque le ressort du tribunal de commerce créé couvre en partie le ressort du tribunal de commerce supprimé et que son siège se situe dans le ressort du tribunal supprimé ;
3° Lorsque le ressort d'un tribunal de commerce couvre l'intégralité du ressort du tribunal de commerce supprimé ainsi que tout ou partie du ressort d'un tribunal de grande instance compétent en application de l'article L. 721-2, dans les matières attribuées aux tribunaux de commerce ;
4° Lorsque le ressort d'un tribunal de commerce créé couvre l'intégralité du ressort d'un tribunal de commerce supprimé ainsi qu'une partie du ressort d'un ou plusieurs tribunaux de commerce maintenus.
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Cette dérogation ne bénéficie au greffier intéressé que pour sa nomination dans un seul office.
Article R742-26
Il n'y a pas lieu de recourir à la procédure prévue aux articles R. 742-18 à R. 742-23 pour nommer greffier du nouveau tribunal une personne physique ou morale qui, en application de l'article R. 742-29, est greffier de chacun des tribunaux supprimés.
Article R742-27
Il n'y a pas lieu d'attendre l'expiration du délai prévu au premier alinéa de l'article R. 743-169 lorsque des indemnités sont dues, en vertu des dispositions des articles R. 743-169 et R. 743-176, à la suite du regroupement de deux ou plusieurs tribunaux de commerce.
Article R742-28
Le candidat à la succession d'un greffier de tribunal de commerce sollicite l'agrément du garde des sceaux, ministre de la justice, dans les formes prévues au présent article.
La demande de nomination est présentée au procureur général près la cour d'appel dans le ressort de laquelle est situé l'office. Elle est accompagnée de toute pièce justificative, et notamment des conventions intervenues entre le titulaire de l'office ou ses ayants droit et le candidat.
Le procureur général recueille l'avis motivé du bureau du Conseil national des greffiers des tribunaux de commerce sur la moralité et sur les capacités professionnelles de l'intéressé ainsi que sur ses possibilités financières au regard des engagements contractés. Si, quarante-cinq jours après sa saisine par lettre recommandée avec demande d'avis de réception, le bureau du Conseil national n'a pas adressé au procureur général l'avis qui lui a été demandé, il est réputé avoir émis un avis favorable et il est passé outre.
Le procureur général transmet le dossier au garde des sceaux, ministre de la justice, avec son avis motivé. La nomination est prononcée par le garde des sceaux, ministre de la justice.
Article R742-29
Une même personne peut être nommée greffier de plusieurs tribunaux de commerce dont le siège est situé dans le même ressort de cour d'appel.
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Article R742-30
Le garde des sceaux peut décider, dans les limites du ressort d'un tribunal de commerce et avec l'accord du greffier ou sur sa demande, la création d'un ou plusieurs greffes annexes. La décision fixe les conditions d'ouverture de ces greffes au public.
Préalablement à sa décision, le garde des sceaux consulte le Conseil national des greffiers des tribunaux de commerce par lettre recommandée avec demande d'avis de réception. Celui-ci doit faire parvenir ses observations dans les deux mois de sa saisine. Faute de réponse dans ce délai, l'avis est réputé favorable.
Le garde des sceaux peut décider la fermeture du ou des greffes annexes, soit à la demande du greffier, soit d'office, après consultation du Conseil national effectuée dans les formes prévues à l'alinéa précédent.
Sous-section 3 : De l'entrée en fonctions et de l'honorariat.
Article R742-31
Dans le mois de leur nomination, les greffiers des tribunaux de commerce prêtent serment devant le tribunal de commerce, en ces termes :
"Je jure de loyalement remplir mes fonctions avec exactitude et probité et d'observer en tout les devoirs qu'elles m'imposent."
Ils ne peuvent exercer leurs fonctions qu'à compter du jour de leur prestation de serment.
Tout greffier de tribunal de commerce qui ne prête pas le serment professionnel dans le mois de la publication de sa nomination au Journal officiel est déclaré démissionnaire de ses fonctions, sauf s'il peut justifier d'un motif valable.
Article R742-32
Le titre de greffier honoraire de tribunal de commerce peut être conféré par le procureur général près la cour d'appel aux greffiers des tribunaux de commerce qui ont exercé leurs fonctions pendant au moins vingt ans.
Section 2 : Des conditions d'accès aux professions judiciaires et
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juridiques de certains greffiers de tribunal de commerce.
Article R742-33
Le greffier d'un tribunal de commerce dont au moins l'un des offices est supprimé par suite d'une nouvelle délimitation de circonscriptions judiciaires et qui a exercé ses fonctions pendant trois ans au moins peut, sur demande présentée dans le délai de deux an à compter de la suppression de son office, accéder aux professions d'administrateur judiciaire, d'avocat, d'avoué, de commissaire-priseur judiciaire, d'huissier de justice, de mandataire judiciaire et de notaire, dans les conditions prévues à la présente section.
Article R742-34
Le greffier mentionné à l'article R. 742-33 bénéficie d'une dispense de diplôme et d'examen d'aptitude pour l'accès aux professions mentionnées à cet article.
Article R742-35
Le garde des sceaux, ministre de la justice peut, sur proposition de la commission prévue à l'article R. 742-36, faire bénéficier le greffier mentionné à l'article R. 742-33 d'une dispense partielle du stage prévu aux articles L. 811-5 et L. 812-3, au 6° de l'article 4-1 du décret du 19 décembre 1945 pris pour l'application du statut des avoués, à l'article 2 du décret du 19 juin 1973 relatif à la formation professionnelle des commissaires priseurs et aux conditions d'accès à cette profession, à l'article 3 du décret du 5 juillet 1973 relatif à la formation professionnelle dans le notariat et aux conditions d'accès aux fonctions de notaire et au 6° de l'article 1er du décret du 14 août 1975 relatif aux conditions d'accès à la profession d'huissier de justice.
La dispense accordée en application de l'alinéa précédent ne peut aboutir à réduire la durée du stage à moins de six mois.
La commission peut en outre proposer au garde des sceaux, ministre de la justice d'imposer au greffier demandeur de suivre, pendant la durée de son stage, une formation complémentaire liée au caractère particulier de la profession à laquelle il souhaite accéder.
Article R742-36
Il est institué une commission compétente pour émettre les propositions de dispense de stage prévues à l'article R. 742-35 ; elle est composée ainsi qu'il suit :
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1° Un magistrat de l'ordre judiciaire, en activité ou honoraire, président ;
2° Deux greffiers des tribunaux de commerce nommés sur proposition du Conseil national des greffiers des tribunaux de commerce ; ils ne peuvent siéger lorsqu'ils sont personnellement intéressés ;
3° Deux membres de la profession à laquelle souhaite accéder le candidat, en activité ou honoraires, nommés sur proposition de leur instance représentative nationale.
Le président et les membres de la commission sont nommés pour trois ans, par arrêté du ministre de la justice. Des membres suppléants sont nommés en nombre égal dans les mêmes conditions. Si l'un des membres cesse d'exercer ses fonctions pour quelque cause que ce soit, il est remplacé pour la durée du mandat restant à courir.
Le secrétariat de la commission est assuré par un magistrat ou un fonctionnaire du ministère de la justice. La commission siège au ministère de la justice.
La commission se réunit sur convocation de son président. Elle ne délibère valablement que si au moins un greffier de tribunal de commerce est présent ainsi qu'un représentant de la profession concernée par la demande de dispense. Elle se prononce à la majorité des voix. En cas de partage égal des voix, celle du président est prépondérante.
Article R742-37
Le greffier d'un tribunal de commerce qui souhaite bénéficier des dispositions de l'article R. 742-35 adresse sa demande par lettre recommandée avec demande d'avis de réception, ou la remet contre récépissé, au secrétariat de la commission. La demande est accompagnée de tous renseignements et documents utiles, notamment ceux relatifs à l'expérience professionnelle du demandeur et à ses travaux, diplômes et publications. Le demandeur précise, en outre, la profession qu'il entend choisir et son mode d'exercice, en adressant tous actes ou documents justificatifs.
Le président de la commission peut désigner au sein de celle-ci un ou plusieurs rapporteurs. La commission peut recueillir toute information qu'elle estime utile à l'instruction de la demande, notamment tout renseignement relatif à l'exercice par le greffier demandeur de sa profession et au fonctionnement de son greffe. Elle peut procéder à l'audition du candidat.
La proposition motivée de la commission est formulée dans les trois mois de la réception de la demande ; dans les quinze jours de sa formulation, elle est adressée au garde des sceaux, ministre de la justice. La proposition de la commission est réputée conforme à la demande présentée par le greffier si elle n'est pas émise dans le délai précité.
Le garde des sceaux, ministre de la justice, notifie sa décision au demandeur, par lettre recommandée avec demande d'avis de réception.
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Article R742-38
Dans le délai de six mois qui suit l'accomplissement du stage prévu à l'article R. 742-35, le greffier saisit à nouveau la commission afin que celle-ci examine, au vu des appréciations du maître de stage ainsi que de la nature et de la qualité du travail qu'il a effectué, s'il peut accéder à la profession souhaitée. La procédure suivie devant la commission est la même que celle prévue aux trois premiers alinéas de l'article R. 742-37.
Le garde des sceaux, ministre de la justice, notifie sa décision dans les mêmes formes que celles prévues au quatrième alinéa de l'article R. 742-37. Cette décision est caduque si son bénéficiaire n'a pas, dans les cinq ans de la date à laquelle elle lui a été notifiée, sollicité sa nomination aux fonctions pour lesquelles il avait demandé le bénéfice d'une dispense.
Chapitre III : Des conditions d'exercice
Section 1 : De l'inspection et de la discipline
Sous-section 1 : De l'inspection.
Article R743-1
Sans préjudice des dispositions de l'article R. 213-29 du code de l'organisation judiciaire, chaque greffe de tribunal de commerce fait l'objet d'une inspection au moins une fois tous les quatre ans. Il peut, en outre, être soumis à des inspections occasionnelles inopinées portant sur un domaine particulier de l'activité professionnelle du greffier ou sur l'ensemble de celle-ci.
Chaque inspection est prescrite par le garde des sceaux, ministre de la justice, soit d'office, soit à la demande du président du tribunal de commerce ou du président du Conseil national des greffiers des tribunaux de commerce. Elle est conduite par le procureur de la République. Elle est réalisée par un ou plusieurs inspecteurs désignés par le garde des sceaux, ministre de la justice, parmi les greffiers des tribunaux de commerce en activité ou parmi les greffiers honoraires ayant cessé leur activité depuis moins de trois ans.
Les greffiers ainsi désignés sont choisis sur une liste comprenant quarante noms au moins, établie avant le début de chaque année par le bureau du Conseil national des greffiers des tribunaux de commerce.
Avant le début de chaque année, le bureau du Conseil national adresse également au garde des sceaux, ministre de la justice, la liste des greffiers proposés pour faire l'objet d'une inspection périodique au cours de l'année suivante.
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Article R743-2
L'inspecteur général des services judiciaires peut également, à la demande du garde des sceaux, ministre de la justice, procéder à des inspections occasionnelles inopinées portant sur l'ensemble de l'activité du greffier. Il peut à cette fin demander le concours des inspecteurs mentionnés à l'article R. 743-1 ou leur avis technique sur la comptabilité du greffe.
Article R743-3
L'inspecteur général des services judiciaires ainsi que les inspecteurs mentionnés à l'article R. 743-1 disposent, dans l'exécution de leur mission, d'un pouvoir général d'investigation et de contrôle.
Ils peuvent se faire assister d'un expert-comptable et d'un commissaire aux comptes. Les frais occasionnés par cette assistance sont avancés par le Conseil national des greffiers des tribunaux de commerce ; ils sont recouvrés sur le greffier du tribunal de commerce inspecté si celui-ci est l'objet d'une sanction disciplinaire.
Le personnel du greffe inspecté doit répondre aux questions qui lui sont posées par les inspecteurs et doit leur fournir toutes informations utiles à l'accomplissement de leur mission.
Article R743-4
Sauf dans les cas prévus à l'article R. 743-2, les inspecteurs mentionnés à l'article R. 743-1 adressent un compte rendu de leur mission au procureur de la République. Les inspections occasionnelles donnent lieu à l'établissement d'un rapport détaillé.
Ces documents sont transmis au garde des sceaux, ministre de la justice, à l'issue de chaque inspection. Copie en est communiquée au président du Conseil national des greffiers des tribunaux de commerce et au président du tribunal de commerce lorsque l'inspection a été prescrite à la demande de ce dernier.
Sous-section 2 : De la discipline.
Article R743-5
Les dispositions du code de procédure civile s'appliquent pour tout ce qui n'est pas réglé par les dispositions de procédure contenues dans le présent chapitre.
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Paragraphe 1 : De l'enquête disciplinaire.
Article R743-6
Le président du Conseil national des greffiers des tribunaux de commerce peut, soit de sa propre initiative, soit à la demande du procureur de la République ou sur la plainte de toute personne intéressée, procéder à une enquête sur le comportement d'un greffier du tribunal de commerce.
Il peut désigner à cette fin un rapporteur parmi les membres ou anciens membres du Conseil national des greffiers des tribunaux de commerce. Le rapporteur ainsi désigné ne peut pas siéger dans la formation disciplinaire de ce Conseil appelée à délibérer sur l'affaire.
Il peut être procédé à l'audition de toute personne susceptible d'éclairer l'enquête. Il est dressé un procès-verbal de cette audition, signé par la personne entendue et annexé au rapport d'enquête.
Lorsque la personne entendue est le greffier du tribunal de commerce dont le comportement est mis en cause, une convocation lui est adressée par lettre recommandée avec demande d'avis de réception. Il peut se faire assister d'un avocat ou d'un autre greffier de tribunal de commerce.
Article R743-7
Au vu des éléments recueillis au cours de l'enquête disciplinaire, le président du Conseil national des greffiers des tribunaux de commerce classe l'affaire ou exerce l'action disciplinaire.
Il en avise le procureur de la République, auquel il communique le rapport d'enquête. Le cas échéant, il informe le plaignant de sa décision.
Lorsque le président du Conseil national des greffiers des tribunaux de commerce, saisi d'une demande d'enquête par le procureur de la République ou sur la plainte d'une personne intéressée, décide de ne pas y donner suite, il en avise l'auteur de la demande.
Paragraphe 2 : De la procédure devant la formation disciplinaire du Conseil national des greffiers des tribunaux de commerce.
Article R743-8
La formation disciplinaire du Conseil national des greffiers des tribunaux de commerce est saisie par la dénonciation des faits motivant les poursuites que lui adresse soit le président du Conseil
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national des greffiers des tribunaux de commerce, soit le procureur de la République.
Lorsque l'action disciplinaire est exercée par le président du Conseil national des greffiers des tribunaux de commerce, ce dernier adresse une copie de l'acte de poursuite, par lettre recommandée avec demande d'avis de réception, au procureur de la République ou, si le greffier est titulaire de plusieurs greffes établis dans le ressort de plusieurs tribunaux de grande instance, à chacun des procureurs de la République compétents.
A compter de la réception de l'acte de poursuite, le procureur de la République près le tribunal de grande instance, désigné le cas échéant conformément au deuxième alinéa de l'article R. 743-12, dispose d'un délai d'un mois pour citer le greffier intéressé devant le tribunal de grande instance statuant disciplinairement. S'il use de cette faculté, il notifie une copie de la citation au président du Conseil national des greffiers des tribunaux de commerce et au président de sa formation disciplinaire. A défaut, l'instance se poursuit devant la formation disciplinaire du Conseil national des greffiers des tribunaux de commerce.
Article R743-9
Le greffier du tribunal de commerce appelé à comparaître devant la formation disciplinaire du Conseil national des greffiers des tribunaux de commerce est convoqué au moins quinze jours à l'avance, par lettre recommandée avec demande d'avis de réception, à la diligence de l'autorité qui exerce l'action disciplinaire.
La convocation comporte, à peine de nullité, l'indication précise des faits qui fondent les poursuites et la référence des dispositions législatives ou réglementaires énonçant les obligations auxquelles il est reproché au greffier poursuivi d'avoir contrevenu.
Les pièces du dossier de la procédure disciplinaire, et notamment le rapport d'enquête disciplinaire et ses annexes, sont cotées et numérotées. Le greffier du tribunal de commerce poursuivi ou son conseil peut en prendre connaissance auprès du secrétariat de la formation disciplinaire du Conseil national.
Article R743-10
La formation disciplinaire du Conseil national des greffiers des tribunaux de commerce ne peut valablement délibérer que si tous ses membres titulaires ou suppléants sont présents.
Les débats sont publics. Toutefois, la formation disciplinaire du Conseil national des greffiers des tribunaux de commerce peut, à la demande du procureur de la République, du président du Conseil national des greffiers des tribunaux de commerce ou du greffier poursuivi, ou s'il doit résulter de la publicité de ces débats une atteinte à l'intimité de la vie privée, décider qu'ils auront lieu ou se poursuivront en chambre du conseil.
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Article R743-11
Le greffier du tribunal de commerce comparaît en personne. Il peut se faire assister par un avocat et, s'il le désire, par un autre greffier de tribunal de commerce.
Le président du Conseil national des greffiers des tribunaux de commerce est entendu, ainsi que le procureur de la République s'il a exercé l'action disciplinaire.
Le dispositif de la décision disciplinaire est lu en audience publique.
Cette décision est notifiée à l'intéressé, au procureur de la République et au président du Conseil national des greffiers des tribunaux de commerce. La notification est faite dans les quinze jours du prononcé de la décision, par lettre recommandée avec demande d'avis de réception.
Le cas échéant, le plaignant est avisé lorsque la décision est passée en force de chose jugée.
Paragraphe 3 : De la procédure devant le tribunal de grande instance statuant disciplinairement.
Article R743-12
Le tribunal de grande instance est saisi, en matière disciplinaire, par la citation délivrée au greffier du tribunal de commerce poursuivi à la requête du procureur de la République ou du président du Conseil national des greffiers des tribunaux de commerce, quinze jours au moins avant l'audience.
Si le greffier du tribunal de commerce est titulaire de plusieurs greffes établis dans le ressort de plusieurs tribunaux de grande instance, l'autorité qui prend l'initiative de l'action disciplinaire saisit par requête le premier président de la cour d'appel, aux fins de désignation de la juridiction compétente. La décision du premier président de la cour d'appel est une mesure d'administration judiciaire.
La citation devant le tribunal de grande instance statuant en matière disciplinaire comporte, à peine de nullité, l'indication précise des faits qui fondent les poursuites et la référence des dispositions législatives ou réglementaires énonçant les obligations auxquelles il est reproché au greffier poursuivi d'avoir contrevenu.
Toute personne qui se prétend lésée peut demander des dommages-intérêts au tribunal de grande instance saisi.
Article R743-13
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Le greffier du tribunal de commerce cité à comparaître ou son conseil peut prendre connaissance de son dossier auprès du greffe du tribunal de grande instance.
Article R743-14
Le greffier du tribunal de commerce comparaît en personne. Il peut se faire assister par un avocat et, s'il le désire, par un autre greffier de tribunal de commerce.
Les débats sont publics, le ministère public entendu. Toutefois, le tribunal de grande instance peut, à la demande du procureur de la République, du président du Conseil national des greffiers des tribunaux de commerce ou du greffier poursuivi, ou s'il doit résulter de la publicité de ces débats une atteinte à l'intimité de la vie privée, décider qu'ils auront lieu ou se poursuivront en chambre du conseil.
Le tribunal peut entendre la personne qui se prétend lésée par les faits reprochés au greffier du tribunal de commerce poursuivi.
Il peut ordonner toutes mesures d'instruction et faire procéder à toutes auditions.
Le président du Conseil national des greffiers des tribunaux de commerce est entendu s'il a exercé l'action disciplinaire.
Article R743-15
Le dispositif du jugement est lu en audience publique.
Le jugement est signifié à l'intéressé. Il est exécutoire à titre provisoire lorsqu'il prononce l'interdiction temporaire ou la destitution d'un greffier suspendu provisoirement de l'exercice de ses fonctions.
Paragraphe 4 : De l'administration provisoire.
Article R743-16
Les peines disciplinaires du rappel à l'ordre, de l'avertissement, du blâme et du retrait de l'honorariat sont réputées exécutées par la signification qui en est faite.
Le greffier de tribunal de commerce interdit temporairement ou destitué doit, dès lors que la
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décision est devenue exécutoire, s'abstenir de tout acte professionnel. Il met immédiatement à la disposition de l'administrateur provisoire l'ensemble des documents et archives du greffe, et notamment les répertoires et livres de comptabilité relatifs à l'année courante et aux années antérieures.
Article R743-17
En cas d'interdiction temporaire ou de destitution, l'administrateur provisoire nommé en application de l'article L. 743-10 est choisi parmi les greffiers en activité des tribunaux de commerce situés dans le ressort de la cour d'appel ou parmi les employés du greffe visés par l'article R. 742-2. Il peut aussi être choisi parmi les greffiers honoraires des tribunaux de commerce ou parmi les personnes remplissant les conditions générales d'aptitude aux fonctions de greffier de tribunal de commerce.
L'administrateur perçoit à son profit les émoluments ou honoraires particuliers relatifs aux actes qu'il accomplit. Il paie, à concurrence des produits du greffe, les charges afférentes au fonctionnement de cet office.
Lorsque plusieurs administrateurs provisoires ont été nommés, les émoluments et honoraires perçus sont répartis entre eux à parts égales. Ils peuvent toutefois stipuler une autre répartition, sans que la part de l'un d'eux dans les produits nets de l'office puisse excéder le double de la part revenant à chacun des autres.
Article R743-18
Le procureur de la République notifie sans délai à l'administrateur la décision qui l'a nommé. Si l'administrateur n'est pas greffier de tribunal de commerce en exercice, il prête serment devant le tribunal de commerce auprès duquel il exercera sa mission.
L'administrateur prend ses fonctions à compter, selon le cas, soit de la notification qui lui est faite de la décision l'ayant nommé, soit de sa prestation de serment.
Article R743-19
Dans un délai de huit jours, l'administrateur arrête les comptes de l'office à la date de son entrée en fonctions. Un état de ces comptes est remis au procureur de la République.
Dans le même délai, l'administrateur avise les administrations concernées et les établissements bancaires qui ont ouvert un compte professionnel au nom du greffier destitué. Ces comptes fonctionnent désormais exclusivement sur l'ordre de l'administrateur.
Article R743-20
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L'administrateur assume l'activité du greffe et en assure la gestion. Il fait mention de sa qualité dans les actes et documents professionnels qu'il établit pour le compte de l'office.
Article R743-21
Le greffier interdit temporairement ou destitué ne peut faire état de son ancienne qualité de greffier du tribunal de commerce.
Paragraphe 5 : De la suspension provisoire.
Article R743-22
Le tribunal de grande instance est saisi de la demande de suspension provisoire par l'assignation à jour fixe délivrée au greffier du tribunal de commerce à la requête du procureur de la République.
L'audience a lieu en chambre du conseil.
Le tribunal statue après conclusion du ministère public, le greffier entendu ou appelé. Ce dernier peut se faire assister par un avocat et, s'il le désire, par un autre greffier de tribunal de commerce.
Le jugement prononçant la suspension provisoire est exécutoire à titre provisoire sur minute.
Article R743-23
Les dispositions du deuxième alinéa de l'article R. 743-16 et celles des articles R. 743-17 à R. 743-20 sont applicables à la suspension provisoire. Cependant, l'administrateur ou les administrateurs nommés ne perçoivent à leur profit que la moitié des émoluments ou honoraires particuliers relatifs aux actes qu'ils accomplissent.
Article R743-24
La cessation de plein droit de la suspension provisoire pour l'une des causes prévues au quatrième alinéa de l'article L. 743-7 ou la décision du tribunal de grande instance mettant fin à cette mesure sont notifiées sans délai par le procureur de la République au greffier intéressé et à l'administrateur provisoire.
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La mission de l'administrateur prend fin dès réception de cette notification.
Dans un délai de huit jours, le greffier et l'administrateur provisoire arrêtent en commun les comptes de l'office. Un état de ces comptes est remis au procureur de la République.
Paragraphe 6 : Des voies de recours.
Article R743-25
L'appel interjeté contre une décision du tribunal de grande instance statuant en matière disciplinaire est formé par simple déclaration au greffe du tribunal.
L'appel n'est ouvert à la personne qui se prétend lésée qu'en ce qui concerne ses intérêts civils.
Article R743-26
L'appel interjeté contre une décision de la formation disciplinaire du Conseil national des greffiers des tribunaux de commerce est formé par simple déclaration au greffe de la cour d'appel de Paris.
Article R743-27
Le délai d'appel est d'un mois ; il est réduit à quinze jours en matière de suspension provisoire.
Article R743-28
La procédure suivie devant le tribunal de grande instance statuant disciplinairement est applicable devant la cour d'appel.
Section 2 : Des modes d'exercice
Sous-section 1 : Dispositions communes aux diverses sociétés.
Article R743-29
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La société est titulaire d'un office de greffier de tribunal de commerce. Son siège est celui de l'office.
La société reçoit l'appellation de "société titulaire d'un office de greffier de tribunal de commerce".
Paragraphe 1 : De la constitution, de l'immatriculation et de l'entrée en fonctions de la société.
Article R743-30
La société est constituée sous la condition suspensive de sa nomination par le garde des sceaux, ministre de la justice ; la condition est réputée acquise à la date de la publication de l'arrêté prévu à l'article R. 743-31.
Article R743-31
La nomination d'une société dans un office de greffier de tribunal de commerce, la nomination de chacun des associés qui exerceront au sein de la société et l'acceptation de leur démission sont prononcées par arrêté du garde des sceaux, ministre de la justice.
Article R743-32
Toute demande de nomination d'une société régie par la présente section est présentée collectivement par les associés qui exerceront au sein de la société au garde des sceaux, ministre de la justice.
La demande est adressée au procureur général près la cour d'appel dans le ressort de laquelle est ou doit être fixé le siège de l'office dont la société sera titulaire. Elle est accompagnée de toutes pièces justificatives, notamment d'une attestation du greffier du tribunal de commerce du lieu du siège social, constatant le dépôt au greffe de la demande et des pièces nécessaires à l'immatriculation ultérieure de la société au registre du commerce et des sociétés ainsi que, lorsqu'un ou plusieurs des futurs associés exerçant au sein de la société doit contracter un emprunt, du plan de financement prévoyant de manière détaillée les conditions dans lesquelles chacun d'eux entend faire face à ses échéances, d'un budget prévisionnel et, le cas échéant, de la liste des associés mentionnés au deuxième alinéa de l'article 5 de la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est protégé, avec leur profession et la part de capital qu'ils détiennent.
Article R743-33
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Le procureur général transmet au garde des sceaux, ministre de la justice, avec son rapport, l'ensemble des documents et pièces justificatives.
Article R743-34
Lorsqu'il est constitué une société entre des greffiers de tribunaux de commerce supprimés et remplacés par un tribunal dont le ressort comprend l'ensemble des ressorts des tribunaux supprimés, cette société peut être nommée greffier du nouveau tribunal de commerce sans qu'il y ait lieu de recourir à la procédure prévue aux articles R. 742-18 à R. 742-23.
Article R743-35
Chacun des arrêtés pris pour l'application des articles R. 743-42, R. 743-47, R. 743-69, R. 743-100, R. 743-101, R. 743-123, R. 743-126 et R. 743-127 modifie ou complète l'arrêté prévu à l'article R. 743-31. Il fixe la liste des greffiers de tribunal de commerce associés en tenant compte du retrait ou de la nomination de certains d'entre eux.
A la diligence de la société, une copie de chacun de ces arrêtés et des décisions du garde des sceaux, ministre de la justice, prises en application de l'article R. 743-130 est adressée au greffier du tribunal de commerce du lieu du siège social pour être versée au dossier ouvert au nom de la société au registre du commerce et des sociétés.
Article R743-36
Si les statuts sont établis par acte sous seing privé, il est établi autant d'originaux qu'il est nécessaire pour la remise d'un exemplaire à chaque associé et pour satisfaire aux dispositions des articles R. 743-32 et R. 743-41.
Article R743-37
Peuvent faire l'objet d'apports à une société :
1° L'exercice par un greffier de tribunal de commerce démissionnaire, un gérant d'une société civile professionnelle ou un représentant légal d'une société d'exercice libéral en voie de dissolution ou par un liquidateur d'une société dissoute, du droit de présenter la société pour successeur à l'agrément du garde des sceaux, ministre de la justice ;
2° L'exercice, par un ou plusieurs ayants droit d'un greffier de tribunal de commerce décédé, de leur droit de présenter la société pour successeur de leur auteur à l'agrément du garde des sceaux, ministre de la justice ;
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3° Le bénéfice résultant pour la société de la suppression d'un tribunal de commerce limitrophe et de son greffe lorsque la circonscription de ladite juridiction est rattachée au ressort du tribunal de commerce dont la société est titulaire du greffe ;
4° Tous droits incorporels et tous meubles utiles à l'exercice de la profession de greffier de tribunal de commerce ;
5° Les immeubles devant servir à l'établissement du siège de l'office ;
6° Toutes sommes en numéraire.
Article R743-38
Sous réserve de la condition suspensive prévue à l'article R. 743-30, les titres de capital ou parts sociales attribués en contrepartie des apports en nature sont réputés libérés par l'engagement pris dans l'acte de société par l'apporteur soit d'exercer son droit de présentation en faveur de la société dans les cas visés aux 1° et 2° de l'article R. 743-37, soit, dans le cas visé au 3° du même article, de renoncer à toute indemnisation du fait de la suppression du greffe du tribunal de commerce limitrophe dont il était titulaire.
Article R743-39
Les titres de capital ou parts sociales d'une société titulaire d'un office de greffier de tribunal de commerce ne peuvent être ni donnés en nantissement ni vendus aux enchères publiques.
Article R743-40
Le retrait des fonds provenant des souscriptions en numéraire est effectué par un mandataire de la société sur la seule justification de la nomination de celle-ci dans les fonctions de greffier de tribunal de commerce.
Article R743-41
L'immatriculation de la société au registre du commerce et des sociétés est régie par les articles R. 123-31 et suivants, sous réserve des dispositions ci-après :
Une ampliation de l'arrêté de nomination prévu à l'article R. 743-31 est adressée par les associés au
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greffe du tribunal où a été déposée la demande d'immatriculation au registre du commerce et des sociétés ; au reçu de cette ampliation, le greffier procède à l'immatriculation et en informe le procureur général près la cour d'appel dans le ressort de laquelle est fixé le siège de la société.
Article R743-42
Les dispositions législatives ou réglementaires relatives à la prestation de serment et au dépôt de la signature et du paraphe des personnes physiques nommées dans les fonctions de greffier de tribunal de commerce sont applicables aux membres d'une société titulaire d'un office de greffier de tribunal de commerce exerçant au sein de la société et aux greffiers de tribunal de commerce associés.
La société ne peut entrer en fonction qu'après la prestation de serment de tous ses membres exerçant en son sein. Ceux-ci n'ont le droit d'accomplir les actes de la profession qu'à compter du jour où ils ont prêté serment.
L'associé, précédemment titulaire d'un office de greffier de tribunal de commerce, qui a fait apport de son droit de présentation à la société, n'a pas à renouveler son serment.
Tout associé qui, exerçant ses fonctions au sein de la société, n'a pas prêté serment dans le mois suivant la publication de l'arrêté prévu à l'article R. 743-31 peut, sauf cas de force majeure, être déchu par arrêté du garde des sceaux, ministre de la justice, de sa qualité d'associé, et ses titres de capital ou parts sociales sont cédés dans les conditions fixées aux articles R. 743-102 et R. 743-128.
Paragraphe 2 : Du fonctionnement de la société.
Article R743-43
Toute délibération fait l'objet d'un procès-verbal signé par les associés présents et contenant notamment la date et le lieu de la réunion, son ordre du jour détaillé, l'identité des associés présents et représentés, un résumé des débats, le texte des résolutions mises aux voix et le résultat des votes.
Les procès-verbaux des délibérations des associés, ainsi que, le cas échéant, ceux des délibérations du conseil d'administration ou du conseil de surveillance et du directoire, sont établis sur un registre spécial préalablement coté et paraphé par le président du tribunal de commerce ou l'un des membres du tribunal qu'il désigne à cet effet. Le registre est conservé au siège de la société.
Toutefois, les procès-verbaux peuvent être établis sur des feuilles mobiles numérotées sans discontinuité, paraphées dans les conditions prévues au premier alinéa. Dès qu'une feuille a été remplie, même partiellement, elle doit être jointe à celles précédemment utilisées. Toute addition, suppression, substitution ou inversion de feuilles est interdite.
Article R743-44
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Toute convention par laquelle l'un des associés cède la totalité ou une fraction de ses titres de capital ou parts sociales à un tiers est passée sous la condition suspensive de l'agrément du cessionnaire et, s'il y a lieu, de l'approbation du retrait du cédant.
Lorsque le consentement de la société est acquis dans les conditions prévues par les articles R. 743-99 et R. 743-125, le cessionnaire adresse au garde des sceaux, ministre de la justice, une requête tendant à sa nomination en qualité de greffier de tribunal de commerce associé exerçant au sein de la société.
Cette requête est remise au procureur général près la cour d'appel dans le ressort de laquelle la société a son siège.
Elle est accompagnée de l'expédition de l'acte de cession des titres de capital ou des parts sociales, si celui-ci a été établi dans la forme authentique, ou de l'un des originaux de cet acte dans le cas contraire, ainsi que de toutes pièces justificatives, notamment de celles établissant le consentement exprès ou tacite donné par la société à la cession, et de celles exigées de tout candidat aux fonctions de greffier de tribunal de commerce. Lorsque le futur associé doit contracter un emprunt, un plan de financement prévoit de manière détaillée les conditions dans lesquelles il entend faire face à ses échéances en fonction de l'ensemble de ses revenus et d'un budget prévisionnel.
Le prix de cession et ses modalités de paiement sont fixés par les parties.
Le procureur général transmet au garde des sceaux, ministre de la justice, avec son rapport, l'ensemble des pièces et des documents.
Article R743-45
Toute modification de la répartition ou du nombre des titres de capital ou parts sociales détenus par les associés, qu'ils exercent ou non au sein de la société, est portée, par lettre recommandée avec demande d'avis de réception, à la diligence de la société et des associés concernés, à la connaissance du procureur général près la cour d'appel dans le ressort de laquelle la société a son siège. Le procureur général en informe le garde des sceaux, ministre de la justice.
Il en est de même lorsqu'un des associés d'une société civile professionnelle cède la totalité de ses parts sociales à la société, aux autres associés ou à l'un ou plusieurs d'entre eux et s'il demeure dans la société, étant attributaire de parts d'intérêts.
Article R743-46
Les articles R. 743-44, R. 743-45, R. 743-100 et R. 743-126 sont également applicables à la cession à titre gratuit de tout ou partie de ses titres de capital ou parts sociales consentie par l'un des associés.
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Article R743-47
Le nombre des associés peut être augmenté au cours de l'existence de la société, avec ou sans augmentation du capital social.
Tout nouvel associé doit remplir les conditions requises pour exercer la profession de greffier de tribunal de commerce et être agréé par le garde des sceaux, ministre de la justice, qui le nomme en qualité de greffier de tribunal de commerce associé.
Article R743-48
Si la nomination du nouvel associé intervient à l'occasion d'une augmentation du capital social, les dispositions des articles R. 743-31, R. 743-32, R. 743-33, R. 743-36 et R. 743-42 sont applicables.
La décision d'augmenter le capital social est prise sous la condition suspensive de l'agrément du nouvel associé par le garde des sceaux, ministre de la justice.
Article R743-49
La décision de proroger la société doit être immédiatement portée à la connaissance du garde des sceaux, ministre de la justice, par le représentant légal de la société.
Paragraphe 3 : De l'exercice des fonctions de greffier de tribunal de commerce par la société et les associés.
Article R743-50
Sous réserve de l'application des dispositions de la présente section, toutes dispositions législatives et réglementaires relatives à l'exercice des fonctions de greffier de tribunal de commerce par les personnes physiques et spécialement à la déontologie ou à la discipline sont applicables aux sociétés titulaires d'un office de greffier de tribunal de commerce et aux greffiers de tribunal de commerce associés exerçant en son sein.
Article R743-51
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Dans tous les actes professionnels qu'il accomplit et dans toutes ses correspondances, le greffier de tribunal de commerce indique son titre de greffier de tribunal de commerce, sa qualité d'associé d'une société titulaire d'un office de greffier de tribunal de commerce et l'adresse du siège de cette société.
Article R743-52
Un greffier de tribunal de commerce associé, exerçant au sein d'une société, ne peut exercer la profession de greffier de tribunal de commerce à titre individuel ou en qualité de membre d'une autre société, quelle qu'en soit la forme.
Article R743-53
Chaque associé exerce les fonctions de greffier de tribunal de commerce au nom de la société. Les associés doivent consacrer à la société toute leur activité professionnelle et s'informer mutuellement de cette activité.
Le greffier de tribunal de commerce associé exerce à titre exclusif la profession de greffier de tribunal de commerce ainsi que toutes les activités qui s'y rattachent.
Article R743-54
Les règles concernant la tenue de la comptabilité des greffiers de tribunal de commerce sont applicables à la société. Tous les registres et documents sont ouverts ou établis au nom de la société.
Article R743-55
Chaque société régie par le présent titre est tenue de contracter une assurance de responsabilité professionnelle.
Article R743-56
La société ne peut faire l'objet de poursuites disciplinaires indépendamment de celles qui seraient intentées contre les associés.
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Article R743-57
L'associé provisoirement suspendu de ses fonctions ne peut exercer aucune activité professionnelle ; il conserve, pendant la durée de sa suspension, sa qualité d'associé, avec tous droits et obligations qui en découlent.
La décision qui prononce la suspension provisoire d'un ou de plusieurs associés exerçant leurs fonctions au sein de la société, mais non de la totalité d'entre eux, ne commet pas d'administrateur.
La décision qui prononce la suspension provisoire soit de la société, soit de tous les associés exerçant leurs fonctions au sein de la société, commet un ou plusieurs administrateurs provisoires pour accomplir tous les actes professionnels relevant à titre obligatoire du ministère de la société ou de greffier de tribunal de commerce.
En outre, peuvent être désignées en qualité d'administrateurs provisoires les personnes mentionnées au premier alinéa de l'article R. 743-17.
L'administrateur provisoire, qui n'est pas greffier de tribunal de commerce en exercice, prête avant son entrée en fonctions le serment exigé d'un greffier de tribunal de commerce ; de plus, il est tenu d'avoir un cachet portant son nom et sa qualité d'administrateur provisoire.
L'administrateur provisoire procède, au siège de la société, aux actes professionnels qu'il a mission d'accomplir.
Article R743-58
L'associé destitué est déchu de sa qualité de greffier de tribunal de commerce associé et cesse l'exercice de son activité professionnelle à compter du jour où la décision prononçant sa destitution est passée en force de chose jugée. Il perd, à compter de la même date, le droit d'assister et de voter aux assemblées de la société.
Ses titres de capital ou parts sociales sont cédés dans les conditions fixées aux articles R. 743-102 et R. 743-128.
Les dispositions de l'article R. 743-57 sont applicables en cas de destitution.
Les effets de la destitution de la société ou de tous les associés exerçant au sein de la société sont régis par l'article R. 743-66.
Article R743-59
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A la diligence du ministère public, une expédition de la décision prononçant la destitution de la société ou de tous les associés exerçant en son sein est versée au dossier ouvert au nom de la société au greffe chargé de la tenue du registre du commerce et des sociétés.
Article R743-60
Si l'un des associés est temporairement empêché, par cas de force majeure, d'exercer ses fonctions, sa suppléance est assurée par les autres associés exerçant au sein de la société.
Si tous les associés sont simultanément empêchés, par cas de force majeure, d'exercer leurs fonctions, la gestion de l'office est assurée conformément aux dispositions réglementaires en vigueur.
Toutefois, le ou les suppléants sont choisis parmi les personnes énumérées au premier alinéa de l'article R. 743-17, et les dispositions des cinquième et sixième alinéas de l'article R. 743-57 leur sont applicables.
Article R743-61
Les fonctions de greffier de tribunal de commerce associé sont assimilées à celles de greffiers de tribunal de commerce pour la collation de titre de greffier de tribunal de commerce honoraire.
Article R743-62
L'ancienneté des greffiers de tribunal de commerce associés est déterminée compte tenu, s'il y a lieu, du temps de service effectué en qualité de greffier de commerce.
L'ancienneté des sociétés est déterminée par la date d'entrée dans la société du plus ancien de ses membres exerçant en son sein.
Paragraphe 4 : De la nullité, de la dissolution et de la liquidation de la société.
Article R743-63
A la diligence du procureur de la République, toute décision judiciaire définitive prononçant la nullité de la société fait l'objet d'une insertion au Journal officiel de la République française et d'un
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dépôt d'une de ces expéditions au dossier ouvert au nom de la société au greffe chargé de la tenue du registre du commerce et des sociétés.
Article R743-64
La nullité de la société ne porte pas atteinte à la validité des actes de leur profession effectués par les greffiers de tribunal de commerce associés exerçant au sein de la société avant la date où cette nullité est devenue définitive.
Article R743-65
La nullité de la société n'est opposable aux tiers qu'à compter de l'accomplissement de formalités de publicité prévues par l'article R. 743-63, le deuxième alinéa de l'article R. 743-75 et l'article R. 743-76.
Article R743-66
La destitution de tous les associés exerçant au sein de la société ou de la société entraîne de plein droit la dissolution de celle-ci par extinction de son objet.
La décision qui prononce ces destitutions constate la dissolution de la société et ordonne sa liquidation.
Le liquidateur désigné remplit les fonctions de l'administrateur dont la nomination est prévue par l'article R. 743-17.
Les associés destitués ne peuvent être choisis comme liquidateurs.
Article R743-67
La société est dissoute de plein droit par le décès simultané de tous les associés ou par le décès du dernier survivant, si tous sont décédés successivement sans qu'à la date du dernier d'entre eux les titres de capital ou parts sociales des autres aient été cédés à des tiers.
Article R743-68
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La société est dissoute de plein droit si tous les associés demandent simultanément leur retrait dans les conditions prévues à l'article 21 de la loi n° 66-879 du 29 novembre 1966 relative aux sociétés civiles professionnelles et aux articles R. 743-101 et R. 743-127, ou s'ils ont demandé successivement ce retrait, sans qu'à la date de la dernière demande les parts sociales ou titres de capital des autres associés aient été cédés à des tiers.
La dissolution a lieu à la date de la notification à la société des demandes simultanées de retrait ou de la dernière de ces demandes.
Les dispositions des articles R. 743-69, R. 743-75 et R. 743-114 reçoivent application.
Article R743-69
La société est réputée démissionnaire de son office à la date de sa dissolution.
La dissolution de la société prend effet, quelle qu'en soit la cause, à la date à laquelle elle est constatée par arrêté du garde des sceaux, ministre de la justice.
Article R743-70
La dissolution de la société n'est opposable aux tiers qu'à compter de l'accomplissement de formalités de publicité prévues par les articles R. 743-59, R. 743-63, par le deuxième alinéa de l'article R. 743-75, et par l'article R. 743-76.
Article R743-71
Lorsqu'une société est en état de liquidation, sa personnalité morale subsiste pour les besoins de la liquidation jusqu'à la clôture de celle-ci.
La raison sociale ou dénomination sociale est obligatoirement suivie de la mention "Société en liquidation".
Article R743-72
La liquidation est régie par les statuts, sous réserve des dispositions du livre II et de la présente section, sauf dans les cas de nullité et de dissolution par suite de la destitution de la société.
Article R743-73
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Le liquidateur est désigné conformément aux statuts, sauf dans les deux cas prévus à l'article R. 743-72, ainsi que dans le cas prévu à l'article R. 743-74. A défaut, il est désigné soit par la décision judiciaire qui prononce la nullité et la dissolution de la société, soit par la délibération des associés qui constate ou décide cette dissolution.
Sous réserve des dispositions du quatrième alinéa de l'article R. 743-66, le liquidateur peut être choisi soit parmi les associés eux-mêmes, soit parmi les personnes mentionnées à l'article R. 743-17.
Il peut être remplacé pour cause d'empêchement ou pour tout autre motif grave par le président du tribunal de grande instance statuant en référé à la demande soit du liquidateur lui-même, soit des associés ou de leurs ayants droit, soit du ministère public.
Plusieurs liquidateurs peuvent être désignés.
Article R743-74
En cas de dissolution de la société par suite du décès des associés, le liquidateur est désigné conformément aux dispositions réglementaires applicables à la suppléance des offices publics et ministériels et remplit les fonctions attribuées au suppléant par ces textes, par dérogation aux dispositions de l'article R. 743-73.
Article R743-75
A moins qu'il n'ait été désigné à la requête du procureur de la République, le liquidateur informe celui-ci de sa désignation en lui faisant parvenir copie ou expédition de la délibération des associés, ou de la décision de justice qui l'a nommé dans ses fonctions.
Le liquidateur dépose au greffe chargé de la tenue du registre du commerce et des sociétés où la société est inscrite, pour être versée au dossier ouvert au nom de la société, la copie de l'expédition prévue au premier alinéa dont tout intéressé peut obtenir communication.
Il ne peut entrer en fonctions avant l'accomplissement des formalités précitées.
Article R743-76
Le dépôt prévu à l'article R. 743-75 est effectué à la diligence du procureur de la République si celui-ci a provoqué la nomination du liquidateur.
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Article R743-77
Le liquidateur représente la société pendant la durée de la liquidation de celle-ci et remplit en remplacement des associés tous actes relevant de la profession de greffier de tribunal de commerce.
Les dispositions des deux derniers alinéas de l'article R. 743-57 sont applicables.
A compter de la date de prestation de serment du successeur de la société, le liquidateur cesse d'avoir qualité pour accomplir, au nom de celle-ci, les actes relevant de la profession de greffier de tribunal de commerce.
Article R743-78
Le liquidateur dispose des pouvoirs les plus étendus pour procéder à la liquidation de la société. Il est chargé notamment de gérer celle-ci pendant sa liquidation, de réaliser son actif, d'apurer son passif, et, après remboursement du capital social aux associés ou à leurs ayants droit, de répartir entre ceux-ci, conformément aux dispositions des statuts, l'actif provenant de la liquidation.
Les pouvoirs du liquidateur peuvent être précisés par la décision judiciaire ou par la décision des associés, qui lui a conféré ses fonctions.
Article R743-79
Sauf dans le cas où la société est dissoute par l'effet de sa destitution, le liquidateur exerce au nom de la société le droit de présentation prévu par l'article 91 de la loi du 28 avril 1816 sur les finances.
Si, dans le délai d'un an à compter de sa désignation, le liquidateur n'a pas exercé le droit de présentation dont la société est titulaire, l'office est pourvu dans les conditions fixées par les dispositions réglementaires relatives aux offices vacants. Ce délai peut être exceptionnellement prorogé par le garde des sceaux, ministre de la justice.
Article R743-80
La décision judiciaire ou la décision de l'assemblée des associés qui nomme le liquidateur fixe sa rémunération.
Celle-ci peut être constituée par une quote-part des produits nets de l'office dont la société est titulaire.
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Sous-section 2 : Dispositions applicables aux sociétés civiles professionnelles
Paragraphe 1 : De la constitution de la société.
Article R743-81
Une personne physique titulaire d'un office de greffier de tribunal de commerce peut constituer une société civile professionnelle qui peut être nommée dans cet office avec :
Une ou plusieurs personnes physiques remplissant les conditions requises pour exercer la profession de greffier de tribunal de commerce ;
Une ou plusieurs personnes physiques titulaires de greffes de tribunaux de commerce limitrophes en cas de suppression de ces juridictions et de rattachement de leur ressort à la circonscription du tribunal de commerce dans le greffe duquel demande à être nommée la société.
Article R743-82
Des personnes physiques remplissant les conditions requises pour exercer la profession de greffier de tribunal de commerce peuvent constituer entre elles une société civile professionnelle qui peut être nommée greffier de tribunal de commerce :
1° Soit en remplacement du titulaire d'un office existant, qui exerce en sa faveur le droit de présentation ;
2° Soit dans un office vacant ;
3° Soit, en cas de création d'un tribunal de commerce, dans l'office de greffier de cette juridiction.
Article R743-83
Dans les cas prévus par le 2° et le 3° de l'article R. 743-82, une société civile professionnelle de greffier de tribunal de commerce peut être nommée titulaire de l'office vacant si l'un des associés remplit les conditions particulières pour être nommé titulaire de l'office en cause.
Article R743-84
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Sans préjudice de toutes autres mentions utiles et notamment de celles qui sont prévues par les articles 8, 10, 11, 14, 15, 19 et 20 de la loi n° 66-879 du 29 novembre 1966 relative aux sociétés civiles professionnelles, concernant respectivement la raison sociale, la répartition des parts, les gérants, la répartition des bénéfices, les dettes sociales, les cessions de parts ou de celles qui sont prévues par le présent titre, les statuts doivent indiquer :
1° Les nom, prénoms et domicile des associés ;
2° Le tribunal de commerce au siège duquel est fixé le siège social de la société ;
3° La durée pour laquelle la société est constituée ;
4° La nature et l'évaluation distincte de chacun des apports effectués par les associés ;
5° Le montant du capital social, le nombre et le montant nominal des parts sociales représentatives de ce capital ;
6° Le nombre des parts d'intérêts attribuées à chaque apporteur en industrie ;
7° L'affirmation de la libération totale ou partielle, suivant le cas, des apports concourant à la formation du capital social.
Article R743-85
L'industrie des associés, laquelle, en vertu de l'article 10 de la loi n° 66-879 du 29 novembre 1966, ne concourt pas à la formation du capital mais peut donner lieu à l'attribution de parts d'intérêts, peut faire l'objet d'apports à une société civile professionnelle titulaire d'un office de greffier de tribunal de commerce.
Article R743-86
Le montant nominal des parts sociales ne peut être inférieur à 150 euros.
Les parts d'intérêts correspondant aux apports en industrie sont incessibles et doivent être annulées lorsque leur titulaire quitte la société pour quelque cause que ce soit, y compris la dissolution de celle-ci.
Article R743-87
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Les parts sociales correspondant à des apports en numéraire doivent être libérées, lors de la souscription, du quart au moins de leur valeur nominale.
La libération du surplus doit intervenir en une ou plusieurs fois, soit aux dates prévues par les statuts, soit sur décision de l'assemblée des associés et au plus tard dans un délai de cinq ans à compter de la nomination de la société.
Article R743-88
Dans les huit jours de leur réception, les fonds provenant des souscriptions en numéraire sont déposés soit à la Caisse des dépôts et consignations, soit chez un notaire ou dans un établissement de crédit.
Article R743-89
La société est dispensée d'insérer dans un journal d'annonces légales les avis prévus aux articles 22, 24 et 26 du décret n° 78-704 du 3 juillet 1978 relatif à l'application de la loi n° 78-9 du 4 janvier 1978 modifiant le titre IX du livre III du code civil.
Paragraphe 2 : Du fonctionnement de la société.
Article R743-90
Par application de l'article 11 de la loi n° 66-879 du 29 novembre 1966, les dispositions relatives aux gérants sont fixées par les statuts.
Article R743-91
Les décisions qui excèdent les pouvoirs des gérants sont prises par les associés réunis en assemblée. Les associés tiennent au moins une assemblée générale annuelle.
D'autres assemblées peuvent avoir lieu sur la demande d'un ou plusieurs associés, représentant au moins la moitié en nombre de ceux-ci ou le quart du capital.
La demande doit préciser les questions à mettre à l'ordre du jour.
Les statuts déterminent les modalités de convocation de l'assemblée.
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Article R743-92
Chaque associé dispose d'une seule voix.
Un associé peut se faire représenter à une assemblée par un autre associé porteur d'un mandat écrit.
L'assemblée ne peut délibérer valablement que si les trois quarts au moins des associés sont présents ou représentés.
Si ce quorum n'est pas atteint, les associés peuvent être convoqués une seconde fois et l'assemblée peut être tenue si le nombre des associés présents ou représentés est au moins de deux.
Article R743-93
En dehors des cas prévus par les dispositions de la loi n° 66-879 du 29 novembre 1966 concernant les cessions de parts et par les articles R. 743-94 et R. 743-95, du deuxième alinéa de l'article R. 743-104, et de l'article R. 743-114, les décisions sociales sont prises à la majorité des voix dont disposent les associés présents ou représentés et, sauf dispositions contraires des statuts, détenant au moins la moitié du capital social.
Article R743-94
La modification des statuts, sauf dans les cas de prorogation de la société ou d'augmentation des engagements des associés, est décidée à la majorité des trois quarts des voix de l'ensemble des associés, représentant au moins les trois quarts du capital social.
La prorogation de la société peut être décidée à la majorité des associés détenant les trois quarts au moins du capital social et, sauf dispositions contraires des statuts, la moitié des parts d'industrie.
L'augmentation des engagements des associés ne peut être décidée qu'à l'unanimité.
Article R743-95
Le droit de présentation dont la société est titulaire ne peut être exercé que du consentement unanime des associés.
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Article R743-96
Après clôture de chaque exercice, le gérant ou l'un des gérants établit, dans les conditions fixées par les statuts, les comptes annuels de la société et un rapport sur les résultats de la société.
Dans les deux mois qui suivent la clôture de l'exercice, les documents visés à l'alinéa précédent sont soumis à l'approbation de l'assemblée des associés.
A cette fin, ils sont adressés à chaque associé, avec le texte des résolutions proposées, quinze jours au moins avant la réunion de l'assemblée et, au plus tard, avec la convocation de cette assemblée.
Article R743-97
Chaque associé peut, à toute époque, prendre connaissance par lui-même des documents visés à l'article R. 743-96, ainsi que de tous registres et documents comptables dont la tenue est prescrite par les dispositions législatives ou réglementaires relatives à la profession de greffier de tribunal de commerce.
Article R743-98
L'associé unique peut céder, conformément aux dispositions des articles R. 743-44 et R. 743-99, une partie de ses parts sociales à un tiers qui remplit les conditions prescrites par l'article R. 743-81.
Article R743-99
Le projet de cession de parts sociales est notifié à la société et à chacun des associés par lettre recommandée avec demande d'avis de réception.
La société notifie son consentement exprès à la cession dans la même forme. Si elle n'a pas fait connaître sa décision dans le délai de deux mois à compter de la dernière des notifications prévues au premier alinéa, son consentement est implicitement donné.
Article R743-100
Dans le cas où la société refuse de consentir à la cession, elle dispose d'un délai de six mois à compter de la notification de son refus par lettre recommandée avec demande d'avis de réception pour notifier, dans la même forme, à l'associé qui persiste dans son intention de céder ses parts sociales un projet de cession ou d'achat de celles-ci, conformément aux dispositions au troisième
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alinéa de l'article 19 de la loi n° 66-879 du 29 novembre 1966. Ce délai peut être renouvelé par le garde des sceaux, ministre de la justice, à la demande de tous les associés, y compris le cédant.
Si l'acquéreur est un tiers, les dispositions des articles R. 743-44 et R. 743-99 sont applicables, à l'exception de celles concernant la notification à la société elle-même et de celles du deuxième alinéa de l'article R. 743-99. La requête du cessionnaire doit être remise au procureur général avant l'expiration du délai mentionné au premier alinéa.
A défaut d'accord entre les parties, le prix de cession est fixé par un expert désigné dans les conditions prévues à l'article 1843-4 du code civil. Toute clause contraire est réputée non écrite.
Le cessionnaire prend, par écrit, l'engagement de payer le prix ainsi fixé ; son engagement est joint à sa requête et une copie du projet d'acte de cession tient lieu de l'expédition ou de l'un des originaux visés au troisième alinéa de l'article R. 743-44.
Si les parts sociales sont acquises par la société, par les associés ou par l'un ou plusieurs d'entre eux, il est procédé conformément à l'article R. 743-45 ; en ce cas, l'expédition ou l'un des originaux de l'acte de cession est adressé au procureur général avant l'expiration du délai mentionné au premier alinéa.
Lorsque l'associé cédant refuse de signer l'acte portant cession de ses parts à la société, à ses coassociés, à l'un ou plusieurs d'entre eux ou à un tiers, il est passé outre à son refus deux mois après la sommation par lettre recommandée avec demande d'avis de réception qui lui est faite par la société et demeurée infructueuse ; son retrait de la société est prononcé par arrêté du garde des sceaux, ministre de la justice, et le prix de cession des parts est consigné à la diligence du cessionnaire.
Article R743-101
Lorsqu'un des associés demande son retrait de la société en cédant la totalité de ses parts sociales, il est procédé conformément aux dispositions des articles R. 743-44, R. 743-99 et R. 743-100.
L'associé titulaire de parts sociales ou de parts d'intérêt informe la société et ses associés par lettre recommandée avec demande d'avis de réception de sa demande de retrait de la société. Il doit, en outre, le cas échéant, respecter le délai de retrait fixé par les statuts sans que ce délai puisse excéder six mois. L'associé titulaire de parts sociales perd, à compter de la publication de l'arrêté constatant son retrait, les droits attachés à sa qualité d'associé, à l'exception toutefois des rémunérations afférentes à ses apports en capital.
Tout retrait d'un associé est prononcé par arrêté du garde des sceaux, ministre de la justice, l'associé étant réputé démissionnaire.
Article R743-102
L'associé destitué dispose d'un délai de six mois à compter du jour où sa destitution est devenue définitive pour céder ses parts sociales à un tiers dans les conditions prévues aux articles R. 743-44 et R. 743-99.
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Si, à l'expiration de ce délai, aucune cession n'est intervenue, il est procédé conformément aux dispositions de l'article R. 743-100 dans la mesure où celles-ci sont de nature à recevoir application.
L'associé destitué peut également, avant l'expiration du délai précité, céder ses parts sociales à la société, aux autres associés ou à l'un ou plusieurs de ceux-ci, dans les conditions prévues à l'article R. 743-45.
Article R743-103
Sous réserve des règles de protection et de représentation des incapables, les dispositions de l'article R. 743-102 sont applicables à la cession des parts sociales de l'associé frappé d'interdiction légale ou placé sous le régime de tutelle des majeurs.
Le délai imparti à l'associé exclu pour céder ses parts à un tiers court à compter du jour où la décision des autres associés prononçant son exclusion lui a été notifiée dans l'une des formes prévues à l'article R. 743-99.
Article R743-104
Le délai prévu au deuxième alinéa de l'article 24 de la loi n° 66-879 du 29 novembre 1966 est fixé à un an à compter du décès de l'associé.
Il peut être renouvelé par le garde des sceaux, ministre de la justice, à la demande des ayants droit de l'associé décédé et avec le consentement de la société donné dans les conditions prévues pour la cession des parts sociales par l'alinéa premier de l'article 19 de la loi précitée.
Article R743-105
Si, pendant le délai prévu à l'article R. 743-104, le ou les ayants droit décident de céder à un tiers étranger à la société les parts sociales de leur auteur, il est procédé conformément aux dispositions des articles R. 743-44, R. 743-99 et R. 743-100.
Pendant le même délai, si la société, les associés survivants ou un ou plusieurs de ceux-ci acceptent, en accord avec le ou les ayants droit de l'associé décédé, d'acquérir les parts sociales de celui-ci, il est procédé conformément aux dispositions de l'article R. 743-45.
Article R743-106
Toute demande d'un ou de plusieurs ayants droit d'un associé décédé tendant à l'attribution préférentielle à leur profit des parts sociales de leur auteur est notifiée à la société et à chacun des associés dans l'une des formes prévues à l'article R. 743-99.
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Les modalités de cette attribution sont régies pour le surplus par les dispositions des articles R. 743-44 et R. 743-99 et, le cas échéant, par celles de l'article R. 743-100.
Article R743-107
Lorsque, à l'expiration du délai prévu à l'article R. 743-104, le ou les ayants droit de l'associé décédé n'ont pas exercé la faculté de céder les parts sociales de leur auteur et si aucun consentement préalable à l'attribution préférentielle n'a été donné par la société, celle-ci dispose d'une année pour acquérir ou faire acquérir les parts sociales de l'associé décédé. Ce délai peut être prorogé de trois mois par le garde des sceaux.
Si les parts sociales sont cédées à un tiers, les dispositions des articles R. 743-44, R. 743-99 et R. 743-100 sont applicables.
Si elles sont acquises par la société, les associés ou certains d'entre eux, il est procédé conformément aux dispositions de l'article R. 743-45 et du cinquième alinéa de l'article R. 743-100.
Article R743-108
La publicité de la cession de parts, accompagnée, le cas échéant, d'une réduction du capital social en application de l'article 21 de la loi n° 66-879 du 29 novembre 1966, est accomplie selon les règles fixées par l'article 52 du décret n° 78-704 du 3 juillet 1978 relatif à l'application de la loi n° 78-9 du 4 janvier 1978 modifiant le titre IX du livre III du code civil.
Dans le cas prévu au sixième alinéa de l'article R. 743-100, cette publicité résulte du dépôt de deux copies certifiées conformes de la sommation adressée au cédant et des pièces justifiant de la signification de cette sommation.
Article R743-109
Si le nouvel associé entre dans la société en acquérant des parts sociales dont les associés ou l'un ou certains de ceux-ci sont titulaires, il est procédé conformément aux articles R. 743-44 et R. 743-99.
Si le nouvel associé entre dans la société en apportant sa seule industrie, les dispositions du premier alinéa de l'article R. 743-31 sont applicables.
Article R743-110
Si la constitution de réserves au moyen de bénéfices non distribués ou le dégagement de plus-values
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d'actif dues à l'industrie des associés le permet, il est procédé périodiquement à l'augmentation du capital social et les parts sociales ainsi créées doivent être attribuées à tous les associés, y compris à ceux qui n'ont apporté que leur industrie.
Les statuts fixent les conditions d'application des dispositions de l'alinéa précédent.
Cette augmentation du capital ne peut intervenir avant la libération totale des parts sociales correspondant à des apports en numéraire.
Paragraphe 3 : De l'exercice des fonctions de greffier de tribunal de commerce par la société et les associés.
Article R743-111
L'appellation de "société titulaire d'un office de greffier de tribunal de commerce", à l'exclusion de toute autre, doit accompagner la raison sociale dans tous documents et toutes correspondances émanant de la société.
Article R743-112
Les associés s'informant mutuellement de leur activité conformément aux dispositions de l'article R. 743-53 ne peuvent se voir reprocher une violation du secret professionnel.
Article R743-113
Par dérogation aux dispositions de l'article R. 743-57, la participation dans les bénéfices de l'associé provisoirement suspendu est réduite de moitié, l'autre moitié étant attribuée par parts égales aux administrateurs, ou, s'il n'est pas commis d'administrateur, à ceux des associés qui n'ont pas fait l'objet d'une suspension provisoire de l'exercice de leurs fonctions.
Paragraphe 4 : De la dissolution et de la liquidation de la société.
Article R743-114
La société prend fin à l'expiration du temps pour lequel elle a été constituée. Toutefois, la dissolution anticipée de la société peut être décidée, à la majorité des associés disposant des trois
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quarts au moins du capital social et détenant la moitié au moins des parts d'industrie.
Le liquidateur est désigné à la majorité en nombre des associés détenant la moitié au moins des parts sociales et la moitié des parts d'industrie.
A défaut, il est désigné par ordonnance du président du tribunal de grande instance statuant en référé à la demande d'un associé ou du ministère public.
Article R743-115
L'associé unique peut exercer en faveur d'un tiers le droit de présentation dont la société est titulaire. La société se trouve alors dissoute de plein droit à compter de la date de prestation de serment du nouveau titulaire de l'office.
Il peut demander à être nommé lui-même greffier du tribunal de commerce, en remplacement de la société. Il adresse dans ce cas une requête motivée et accompagnée de toutes justifications au garde des sceaux, ministre de la justice, par l'intermédiaire du procureur général. La société est dissoute à compter de la nomination de l'associé en qualité de greffier de tribunal de commerce en remplacement de la société.
Article R743-116
Dans le cas de la dissolution de la société par suite du décès des associés, le liquidateur exerce le droit de présentation dont la société est titulaire.
Si les ayants droit des associés décédés dans le cas prévu au premier alinéa, ou les associés dans les autres cas de dissolution de la société à l'exception de celui résultant de sa destitution, ont choisi à l'unanimité un candidat à l'office, le liquidateur exerce le droit de présentation en sa faveur.
Article R743-117
Le liquidateur convoque les associés ou leurs ayants droit dans les trois mois suivant la clôture de chaque exercice et leur rend compte de sa gestion des affaires sociales.
Il les convoque également en fin de liquidation pour statuer sur le compte définitif, se faire délivrer quitus et constater la clôture de la liquidation.
Article R743-118
L'assemblée de clôture statue dans les conditions de quorum et de majorité prévues pour
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l'approbation des comptes annuels de la société.
Si elle ne peut délibérer ou refuse d'approuver les comptes du liquidateur, le tribunal de grande instance dans le ressort duquel la société a son siège statue à la demande du liquidateur ou de tout intéressé.
Article R743-119
Dans le cas prévu par le deuxième alinéa de l'article 37 de la loi n° 66-879 du 29 novembre 1966, concernant les sociétés adoptant le statut de sociétés coopératives, l'actif net de la société, subsistant après extinction du passif et remboursement du capital, est réparti entre les associés au prorata des parts détenues par chacun d'eux, y compris les parts d'intérêt correspondant aux apports en industrie.
Sous-section 3 : Dispositions applicables aux sociétés d'exercice libéral.
Article R743-120
Les sociétés d'exercice libéral de greffiers de tribunaux de commerce à responsabilité limitée, à forme anonyme et en commandite par actions, sont régies par les dispositions du livre II, sous réserve des dispositions de la présente section.
Paragraphe 1 : De la constitution de la société.
Article R743-121
Des personnes physiques remplissant les conditions requises pour exercer la profession de greffier de tribunal de commerce, mais qui ne sont pas titulaires d'un office de greffier de tribunal de commerce, peuvent constituer entre elles et, dans les conditions prévues à l'article 5 de la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est protégé et aux sociétés de participations financières de professions libérales, avec les personnes mentionnées à cet article, une société d'exercice libéral qui peut être nommée greffier de tribunal de commerce en remplacement du titulaire d'un office existant ou titulaire d'un office créé ou vacant.
Une ou plusieurs de ces personnes peuvent également constituer avec une personne physique titulaire d'un office de greffier de tribunal de commerce une société d'exercice libéral qui peut être nommée :
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1° Dans cet office ;
2° En cas de création d'un tribunal de commerce, dans l'office de greffier de cette juridiction.
Article R743-122
Lorsqu'une société régie par les dispositions de l'article R. 743-121 est nommée titulaire d'un office créé ou vacant, la nomination est faite dans les conditions prévues par les articles R. 742-18 et suivants.
Article R743-123
Une société d'exercice libéral constituée par transformation d'une société civile professionnelle titulaire d'un office doit être agréée par arrêté du garde des sceaux, ministre de la justice.
Article R743-124
La société est dispensée de procéder aux formalités de publicité prévues aux articles R. 210-16 et suivants du présent code.
Paragraphe 2 : Du fonctionnement de la société.
Article R743-125
Le consentement de la société à la cession de la totalité ou d'une fraction de titres de capital ou parts sociales est acquis dans les conditions prévues par les articles L. 223-14 et L. 228-24 et par l'article 10 de la loi n° 90-1258 du 31 décembre 1990.
Article R743-126
Si la société n'agrée pas le cessionnaire proposé, il est procédé conformément aux dispositions des articles L. 223-14 et L. 228-24.
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Si l'acquéreur est un tiers à la société, les dispositions des articles R. 743-44 et R. 743-125 sont applicables.
Si les titres de capital ou parts sociales sont acquis par la société ou par un ou plusieurs associés exerçant en son sein, il est procédé conformément à l'article R. 743-45. En ce cas, l'expédition ou l'un des originaux de l'acte de cession est adressé au procureur général.
Le cessionnaire prend, par écrit, l'engagement de payer le prix fixé ; son engagement est joint à sa requête et une copie du projet d'acte de cession tient lieu de l'expédition ou de l'un des originaux visés au deuxième alinéa de l'article R. 743-44.
Lorsque l'associé cédant refuse de signer l'acte portant cession de ses titres de capital ou parts sociales à la société, à ses coassociés, à l'un ou plusieurs d'entre eux ou à un tiers, il est passé outre à son refus deux mois après la sommation par lettre recommandée avec demande d'avis de réception à lui faite par la société et demeurée infructueuse. Son retrait de la société est prononcé par arrêté du garde des sceaux, ministre de la justice, et le prix de cession des parts est consigné à la diligence du cessionnaire.
Article R743-127
Lorsqu'un associé demande son retrait de la société en cédant la totalité de ses titres de capital ou parts sociales, il est procédé conformément aux dispositions des articles R. 743-44, R. 743-125 et R. 743-126.
Toutefois, un associé qui entend cesser d'exercer au sein de la société tout en conservant ses titres de capital ou parts sociales dans les conditions prévues par le 2° du deuxième alinéa de l'article 5 de la loi n° 90-1258 du 31 décembre 1990 peut demander son retrait en qualité d'associé exerçant au sein de la société, après en avoir informé la société et ses associés par lettre recommandée avec demande d'avis de réception. Il perd, à compter de la publication de l'arrêté constatant son retrait, les droits attachés à cette qualité.
Tout retrait d'une société par un associé est prononcé par arrêté du garde des sceaux, ministre de la justice.
Article R743-128
L'associé destitué exerçant au sein de la société dispose d'un délai de six mois à compter du jour où la décision de destitution est passée en force de chose jugée pour céder ses titres de capital ou parts sociales à un tiers à la société dans les conditions prévues aux articles R. 743-44 et R. 743-125.
Si, à l'expiration de ce délai, aucune cession n'est intervenue, il est procédé conformément aux dispositions de l'article R. 743-126.
L'associé destitué peut également, avant l'expiration du délai précité, céder ses titres de capital ou
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parts sociales à la société, aux autres associés exerçant au sein de la société ou à l'un ou plusieurs de ceux-ci, dans les conditions prévues à l'article R. 743-45, ou à une personne remplissant les conditions prévues au deuxième alinéa de l'article 5 de la loi n° 90-1258 du 31 décembre 1990.
Article R743-129
Sous réserve des règles de protection et de représentation des incapables, les dispositions de l'article R. 743-128 sont applicables à la cession de titres de capital ou de parts sociales de l'associé placé sous le régime de la tutelle des incapables majeurs, s'il ne veut ou ne peut bénéficier des dispositions du 2° du deuxième alinéa de l'article 5 de la loi n° 90-1258 du 31 décembre 1990, ou de l'associé frappé d'interdiction légale.
Elles sont également applicables à la cession de titres de capital ou de parts sociales de l'associé dont l'exclusion de la société a été décidée dans les cas mentionnés à l'article R. 743-134.
Article R743-130
Sans préjudice des dispositions des articles L. 223-14 et L. 228-24 et de l'article 10 de la loi n° 90-1258 du 31 décembre 1990, toute cession de titres de capital ou de parts sociales aux personnes mentionnées aux 1°, 4° et 5° du deuxième alinéa de l'article 5 de la loi du 31 décembre 1990 précitée est effectuée sous la condition suspensive de l'agrément du garde des sceaux, ministre de la justice. Elle est portée à la connaissance du procureur général près la cour d'appel dans le ressort de laquelle la société a son siège.
Le procureur général transmet au garde des sceaux, ministre de la justice, avec son rapport, l'ensemble des pièces et documents.
Le garde des sceaux, ministre de la justice, donne son agrément à la convention par décision notifiée aux intéressés par le procureur général. En cas de refus d'agrément, la décision est motivée.
Article R743-131
Dans le cas visé au 4° du deuxième alinéa de l'article 5 de la loi n° 90-1258 du 31 décembre 1990, les statuts de la société doivent être joints à la convention transmise au procureur général.
Article R743-132
Dans le cas prévu au cinquième alinéa de l'article R. 743-126, la publicité de la cession de titres de capital et de parts sociales résulte du dépôt au greffe du tribunal chargé de la tenue du registre du commerce et des sociétés du lieu du siège social de la société de deux copies certifiées conformes de la sommation adressée au cédant et des pièces justificatives de la signification de cette
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sommation.
Paragraphe 3 : De l'exercice des fonctions de greffier de tribunal de commerce par la société et les associés.
Article R743-133
Outre les mentions prévues à l'article 2 de la loi n° 90-1258 du 31 décembre 1990, toutes correspondances et tous documents émanant de la société doivent indiquer sa qualité de société titulaire d'un office de greffier de tribunal de commerce.
Article R743-134
Tout associé exerçant au sein de la société qui a fait l'objet d'une condamnation disciplinaire passée en force de chose jugée à une peine égale ou supérieure à trois mois d'interdiction dans l'exercice de sa profession, ou d'une condamnation pénale définitive à une peine d'emprisonnement égale ou supérieure à trois mois peut être contraint, à l'unanimité des autres associés exerçant au sein de la société, de se retirer de celle-ci.
Ses titres de capital ou parts sociales sont cédés dans les conditions prévues à l'article R. 743-128.
Sous-section 4 : Dispositions applicables aux sociétés en participation de greffiers de tribunal de commerce.
Article R743-135
Les sociétés en participation prévues à l'article 22 de la loi n° 90-1258 du 31 décembre 1990 reçoivent l'appellation de sociétés en participation de greffiers de tribunal de commerce.
La société n'est pas titulaire d'un office de greffier de tribunal de commerce et chacun des associés exerce ses fonctions au sein de l'office dont il est titulaire.
L'appartenance à la société avec la dénomination de celle-ci doit être indiquée dans les actes professionnels et les correspondances de chaque associé.
Article R743-136
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La société est constituée sous la condition suspensive de la publicité prévue au troisième alinéa de l'article R. 743-138 entre greffiers de tribunal de commerce personnes physiques.
Article R743-137
En vue d'assurer la publicité de la constitution d'une société en participation, les associés adressent les statuts de la société au procureur général près la cour d'appel dans le ressort de laquelle est fixé le siège de la société.
Si les associés exercent leurs fonctions dans des offices situés dans des ressorts de cours d'appel différents, ils informent de cette constitution le procureur général du lieu de situation de chacun des offices.
Article R743-138
Le procureur général mentionné au premier alinéa de l'article R. 743-137 sollicite l'avis des procureurs généraux concernés.
Il transmet au garde des sceaux, ministre de la justice, avec son rapport, le dossier et les avis recueillis.
La constitution de la société en participation est publiée au Journal officiel de la République française, à l'initiative du garde des sceaux, ministre de la justice.
Article R743-139
En cas de dissolution de la société, la notification de cette dissolution est portée à la connaissance du procureur général près la cour d'appel dans le ressort de laquelle est situé le siège de la société par l'associé ou les associés ayant demandé la dissolution, qui en informent, suivant le cas, tout autre procureur général concerné.
Le procureur général du lieu de situation du siège de la société transmet au garde des sceaux, ministre de la justice, la notification de la dissolution en vue de sa publication au Journal officiel de la République française.
Chaque associé reprend l'exercice individuel de ses fonctions à compter de la publication mentionnée au deuxième alinéa.
Section 3 : De la tarification des greffiers des tribunaux de commerce.
Article R743-140
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Les émoluments dus aux greffiers des tribunaux de commerce pour l'établissement et le contrôle de conformité des actes de leur ministère sont déterminés et fixés conformément aux dispositions qui suivent et aux tableaux de l'annexe 7-5 du présent livre.
Ils comprennent la rémunération de tous travaux, soins, diligences et formalités afférents à l'acte ou à la procédure considérée.
La rémunération des diligences de chaque transmission d'acte, décision ou document, par remise en main propre contre récépissé ou par voie électronique sécurisée s'élève à un taux de base et demi. Lorsque la transmission se fait sous une autre forme, les débours, y compris les frais de poste et de téléphone, sont remboursés au greffier pour leur montant réel, sauf si un forfait de transmission a été prévu dans les tableaux de l'annexe 7-5 précitée.
Article R743-141
Lorsque le greffier accomplit les opérations prévues au dernier alinéa de l'article L. 143-11-7 du code du travail, il perçoit la rémunération fixée pour celles-ci par le tarif des administrateurs judiciaires en matière commerciale et des mandataires judiciaires au redressement et à la liquidation des entreprises.
Article R743-142
Le droit prévu pour chaque acte, formalité ou procédure est égal soit au montant du taux de base soit à un multiple ou sous-multiple de ce taux.
Ce taux est fixé à 1,30 euro.
Article R743-143
Il n'est dû aucune rémunération pour l'établissement et la délivrance des copies, certificats et extraits de toute nature demandés par les autorités judiciaires ou par le ministère de la justice aux greffiers des tribunaux de commerce.
Article R743-144
Le greffier d'un tribunal de commerce peut délivrer, à titre de simple renseignement, des copies collationnées qui ne sont ni signées ni revêtues du sceau, ni certifiées conformes, des documents de toute nature déposés au greffe dont il peut être légalement donné communication à celui qui en requiert la copie.
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Article R743-145
Il n'est dû aucun émolument :
1° Pour les mentions manuscrites portées à titre d'information interne au greffe, sur les actes ou sur les documents conservés au greffe ou établis par celui-ci ou sur les pièces produites ;
2° Pour les mentions d'office prévues au titre :
a) Des procédures de redressement ou de liquidation judiciaire des entreprises ouvertes à compter du 1er janvier 2006 ;
b) Des informations transmises par le ministère public ou l'autorité administrative, s'agissant d'une décision juridictionnelle passée en force de chose jugée ou d'une décision administrative définitive portant sur un changement dans le libellé des adresses déclarées ;
3° Pour l'inscription au registre du commerce et des sociétés de la décision, rendue par une juridiction d'un Etat membre de l'Union européenne soumis à l'application du règlement n° 1346-2000 du 29 mai 2000 du Conseil relatif aux procédures d'insolvabilité, ouvrant une procédure d'insolvabilité en application de l'article 3, paragraphe 1, de ce règlement à l'égard d'une personne physique ou morale, immatriculée au registre précité, dont le centre des intérêts principaux ou le domicile est situé dans cet Etat ;
4° Lorsque le domiciliataire informe le greffier de la cessation de la domiciliation de l'entreprise dans ses locaux en application des dispositions du 1° de l'article R. 123-168 ;
5° Pour l'accomplissement des obligations imposées aux greffiers par le service du greffe dans un intérêt d'ordre public ou d'administration judiciaire.
Article R743-146
La consultation par voie télématique des inscriptions portées aux registres de publicité légale est facturée aux utilisateurs au tarif du palier 3617 le plus élevé de consultation des services Minitel lorsque cette facturation est établie au cas par cas selon des modalités exclusives de toute formule de forfaitisation ou d'abonnement.
Dans les autres cas, la consultation s'effectue au palier 3614 et est facturée aux conditions du contrat d'abonnement souscrit par l'utilisateur.
Lorsque la consultation donne lieu à délivrance d'une copie, cette dernière est par ailleurs facturée
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selon les modalités prévues à l'article R. 743-142.
Lorsqu'elle est effectuée par les autorités judiciaires ou par le ministère de la justice, la consultation par voie électronique des inscriptions portées aux registres de publicité légale tenus par les greffes ne peut faire l'objet d'aucune facturation, qu'elle ait donné lieu ou non à la délivrance d'une copie, d'un extrait ou d'un certificat.
Article R743-147
Avant tout règlement, les greffiers sont tenus de remettre aux parties, même si celles-ci ne le requièrent pas, le ou les comptes détaillés relatifs aux sommes dont elles sont redevables à quelque titre que ce soit. La facture distingue : les émoluments hors taxe, les diligences et forfaits de transmission hors taxe, les déboursés, la taxe sur la valeur ajoutée et le montant total taxes incluses.
En outre, lorsque le greffier a effectué des travaux, formalités, diligences ou missions en application de l'article R. 743-155, il indique le montant des honoraires correspondants sur une ligne spéciale en distinguant leur montant hors taxe et la taxe sur la valeur ajoutée.
Ce compte doit mentionner pour chaque opération tarifée la référence au numéro figurant dans le tableau annexé correspondant.
Article R743-148
Une comptabilité conforme au plan comptable général est tenue dans chaque greffe de tribunal de commerce.
Article R743-149
Les greffiers des tribunaux de commerce sont également tenus d'établir un ou des registres chronologiques de facturation de tous les actes de greffe et formalités qu'ils accomplissent. Sur ce ou ces registres figurent le détail des sommes réclamées au titre des émoluments, forfaits et débours. Sur un autre registre tenu chronologiquement sont portés le détail des sommes perçues ainsi que l'acte ou la formalité correspondante.
Article R743-150
Tout versement en espèces fait à la caisse du greffe donne lieu à la délivrance d'un reçu.
Il n'est toutefois pas délivré de reçu pour les versements faits par l'intermédiaire du compte en banque du greffier.
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Il est enjoint aux greffiers de recevoir les chèques de toute nature qui leur sont donnés en paiement, sauf, s'ils le jugent opportun, à ne délivrer les pièces ou à ne procéder à la formalité demandée qu'après encaissement.
Tout papier à en-tête du greffe du tribunal de commerce comporte l'indication du numéro du compte bancaire du greffier.
Article R743-151
Les greffiers des tribunaux de commerce peuvent, avant de procéder aux actes de leur ministère, exiger de la partie qui requiert les actes ou les formalités une provision suffisante pour le paiement des frais, droits, déboursés et émoluments afférents à ces actes ou formalités.
Article R743-152
Le procureur général ou le procureur de la République vérifient, chaque fois qu'ils le jugent utile, les registres et documents de toute nature des greffes de leur ressort. En cas d'infraction, ils font rapport au garde des sceaux, ministre de la justice, et en informent le président du Conseil national des greffiers pour être prise à l'égard du contrevenant telle mesure qu'il appartiendra.
Le président du tribunal de commerce en est avisé. Il peut procéder à la même vérification.
Article R743-153
Les greffiers des tribunaux de commerce qui, en raison de leurs fonctions, et comme officiers publics, sont obligés de se transporter à plus de deux kilomètres de la commune où siège le tribunal de commerce perçoivent pour la distance parcourue tant à l'aller qu'au retour :
1° Si le déplacement pouvait avoir lieu par chemin de fer ou par un autre service de transport en commun, le prix du transport en 1re classe ;
2° A défaut de moyens de transport en commun, le prix du transport en 1re classe d'après le nombre de kilomètres parcourus.
En outre, si le déplacement exige plus d'une journée, il est alloué par journée une indemnité égale à vingt taux de base.
Article R743-154
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Il est interdit aux greffiers des tribunaux de commerce de réclamer ou de percevoir des émoluments plus élevés que ceux qui sont prévus, sous peine de restitution de la somme indûment perçue et de poursuites disciplinaires.
Article R743-155
Les greffiers peuvent percevoir des honoraires particuliers pour les travaux, formalités, diligences ou missions relevant de leurs fonctions qui ne sont pas prévus par les articles R. 743-140 à R. 743-155 lors de la délivrance, conformément aux dispositions légales et réglementaires, notamment celles de l'article R. 123-151, de renseignements et de statistiques sous une autre forme que les certificats, copies ou extraits des inscriptions portées sur les registres tenus dans les greffes et actes déposés en annexe, du registre du commerce et des sociétés.
Lorsque les travaux, formalités, diligences ou missions mentionnés à l'alinéa précédent sont accomplis dans son intérêt exclusif, le représentant de la partie intéressée ne peut réclamer à celle-ci le remboursement des honoraires particuliers perçus par le greffier.
Les honoraires particuliers sont, à défaut d'accord entre le greffier et celui qui doit en supporter définitivement la charge, fixés judiciairement dans les formes du droit commun.
Article R743-156
Une affiche, apposée de façon apparente dans chaque local du greffe accessible au public, doit faire connaître que le présent tarif est à la disposition de toute personne qui en fait la demande.
Article R743-157
Toute méconnaissance d'une obligation prévue à la présente section constitue une faute disciplinaire.
Section 4 : De la modification du ressort des juridictions commerciales par suite d'une nouvelle délimitation de circonscriptions administratives ou judiciaires.
Article R743-158
Lorsque le ressort d'un tribunal de commerce ou d'un tribunal de grande instance statuant en matière
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commerciale est modifié par suite d'une nouvelle délimitation de circonscriptions administratives ou judiciaires, il est procédé conformément aux dispositions des articles R. 743-159 à R. 743-177. Il en est de même lorsqu'un tribunal est créé.
Article R743-159
Conformément à l'article R. 721-5, le tribunal primitivement saisi demeure compétent pour statuer sur les procédures introduites antérieurement à la date de modification du ressort ainsi que sur toutes celles qui découlent d'une sauvegarde, d'un redressement judiciaire, d'une liquidation judiciaire, d'un règlement judiciaire, d'une liquidation de biens, ainsi que d'une faillite personnelle ou d'autres sanctions.
Article R743-160
Le greffier du tribunal antérieurement compétent conserve les minutes, registres, actes, pièces et documents déposés avant la modification du ressort, sous réserve des dispositions des articles R. 743-162 à R. 743-168. Il a seul qualité pour en délivrer expédition, copie ou extrait, en mentionnant toutefois la date de modification du ressort et le tribunal désormais compétent.
Article R743-161
Jusqu'à l'expiration du délai légal de communication aux tiers, lorsque le greffier du tribunal désormais compétent délivre des expéditions, copies ou extraits de minutes, registres, actes, pièces et documents concernant des personnes physiques ou morales dont le domicile ou dont le siège est situé dans les cantons, communes ou sections de communes précédemment compris dans le ressort d'un autre tribunal, il mentionne sur ces expéditions, copies ou extraits, le tribunal antérieurement compétent et la date de modification du ressort.
Article R743-162
Lorsqu'un établissement commercial, appartenant à une personne physique ou morale, est situé dans un canton, une commune ou une section de commune transférés dans un autre ressort, le greffier du tribunal antérieurement compétent adresse au greffier du tribunal désormais compétent le dossier complet d'immatriculation relatif à cet établissement, sous réserve que l'immatriculation n'ait pas été radiée avant la date de modification du ressort.
Article R743-163
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Si le dossier concerne une immatriculation à titre principal, le greffier du tribunal désormais compétent modifie la mention prévue au 2° de l'article R. 123-237. Si le dossier concerne une personne physique ou morale déjà titulaire à un titre quelconque des mentions prévues aux 1° et 2° de l'article R. 123-237 au greffe du tribunal désormais compétent, le greffier de ce tribunal classe sous ces mentions le dossier transféré. Le greffier fait publier dans au moins deux titres de la presse régionale paraissant dans le ressort du tribunal antérieurement compétent une insertion en caractères gras et encadrée, à un emplacement et d'une taille de nature à appeler l'attention du lecteur, mentionnant le transfert des immatriculations par suite de la suppression du tribunal antérieurement compétent. Il avise l'Institut national de la propriété industrielle des modifications intervenues par l'envoi d'une liste récapitulative.
Article R743-164
Jusqu'à transmission du dossier au greffier du tribunal désormais compétent, les inscriptions modificatives qui devraient être apportées à l'immatriculation sont reçues par le greffier du tribunal antérieurement compétent, qui doit également délivrer toutes copies ou extraits d'immatriculation au registre du commerce.
Article R743-165
Sauf dérogation particulière prévue par le décret modifiant le ressort d'un tribunal de commerce ou d'un tribunal de grande instance statuant en matière commerciale, le transfert des dossiers prévus à l'article R. 743-162 doit être effectué dans le délai de trois mois à compter de la date de l'entrée en vigueur du décret modifiant la circonscription administrative ou judiciaire intéressée.
Article R743-166
Sauf dérogation particulière prévue par le décret modifiant le ressort d'un tribunal de commerce, les diligences imparties par l'article R. 743-163 au greffier du tribunal désormais compétent doivent être accomplies dans le délai de six mois à compter de la réception des pièces prévues à l'article R. 743-162.
Article R743-167
Les dispositions des articles R. 743-162 à R. 743-166 sont applicables, en tant que de besoin, au registre des agents commerciaux.
Article R743-168
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Il n'est dû aux greffiers aucun émolument pour les radiations, les réimmatriculations et les inscriptions modificatives rendues nécessaires, en matière de registre du commerce et des sociétés et de registre des agents commerciaux, par la modification du ressort des juridictions commerciales consécutive à une nouvelle délimitation de circonscriptions administratives ou judiciaires.
Article R743-169
Les indemnités qui peuvent être dues, par suite des modifications de ressorts prévues à l'article R. 743-158, entre les greffiers des tribunaux de commerce et les anciens greffiers des tribunaux de commerce non remplacés ou leurs ayants droit sont évaluées et réparties après la deuxième année civile suivant celle au cours de laquelle sont intervenues ces modifications.
Le montant et la répartition de ces indemnités sont fixés par le garde des sceaux, ministre de la justice, soit après accord des parties qui en avisent le procureur général près la cour d'appel, soit sur proposition d'une commission dont la composition est fixée à l'article R. 743-170.
A défaut d'accord amiable, la partie la plus diligente ou le procureur général près la cour d'appel saisit la commission par lettre recommandée avec demande d'avis de réception. La commission doit se prononcer dans le délai de trois mois à compter du dépôt de la demande accompagnée de l'ensemble des pièces nécessaires à l'instruction du dossier. Le président de la commission transmet la proposition de celle-ci, qui est motivée, au garde des sceaux, ministre de la justice, dans le délai de quinze jours à compter de son adoption.
Il la notifie également, dans le même délai, à chacun des créanciers et débiteurs d'indemnité, par lettre recommandée avec demande d'avis de réception. Ceux-ci peuvent, dans le délai de quinze jours à compter de la notification et dans la même forme, faire connaître au garde des sceaux, ministre de la justice, que la proposition de la commission ne reçoit pas leur agrément.
Lorsque le garde des sceaux, ministre de la justice, refuse d'approuver l'accord des parties intervenu dans les conditions définies au deuxième alinéa, il saisit la commission et fixe le montant et la répartition des indemnités sur la proposition de celle-ci ; la commission procède comme il est dit au troisième alinéa.
Article R743-171
Pour déterminer le montant de l'indemnité, la commission apprécie la valeur de l'office en tenant compte de la recette nette moyenne au cours des cinq derniers exercices connus précédant le dépôt de la demande d'indemnisation et du solde moyen d'exploitation de l'office au cours de la même période.
La recette nette est égale à la recette encaissée par l'office, telle que retenue pour le calcul de l'imposition des bénéfices, diminuée des débours payés pour le compte des clients et des honoraires rétrocédés.
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Le solde d'exploitation est égal à la recette nette augmentée des frais financiers et des pertes diverses et diminuée du montant des produits financiers, des gains divers et de l'ensemble des dépenses nécessitées pour l'exercice de la profession, telles que retenues pour le calcul de l'imposition des bénéfices en application des articles 93 et 93 A du code général des impôts.
Les données utilisées sont celles qui figurent sur la déclaration fiscale annuelle et dans la comptabilité de l'office.
La commission tient également compte, dans son appréciation, des éléments propres à la situation de l'office et de son titulaire.
Article R743-172
Lorsque les activités d'un greffe supprimé sont reprises par plusieurs greffes, la charge de l'indemnité, dont le montant est déterminé dans les conditions prévues à l'article R. 743-171, est répartie entre ceux-ci en fonction de l'avantage résultant pour chacun d'eux de cette suppression, en prenant en compte notamment le nombre moyen d'immatriculations au registre du commerce et des sociétés et de modifications apportées à ce registre au cours des cinq années précédant la demande d'indemnisation.
Article R743-173
Lorsque la modification prévue à l'article R. 743-158 affecte le ressort d'un tribunal de grande instance statuant en matière commerciale, elle donne lieu à indemnisation dans les conditions suivantes :
1° En cas d'augmentation du ressort du tribunal de grande instance, les greffiers des tribunaux de commerce sont indemnisés par l'Etat à raison de la suppression de leur office ou de la diminution de leur compétence territoriale ;
2° En cas de réduction du ressort du tribunal de grande instance ou de suppression de sa compétence commerciale, les greffiers des tribunaux de commerce qui sont créés ou dont le ressort est agrandi versent une indemnité à l'Etat.
Dans tous les cas, le montant des indemnités est fixé par arrêté conjoint du garde des sceaux, ministre de la justice, et du ministre chargé du budget, sur proposition de la commission dont la composition est fixée à l'article R. 743-174 et selon la procédure définie à l'article R. 743-175.
Article R743-174
La commission prévue à l'article R. 743-173 comprend :
1° Un magistrat hors hiérarchie du siège désigné par le garde des sceaux, ministre de la justice, président ;
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2° Deux représentants du ministre chargé du budget ;
3° Deux greffiers des tribunaux de commerce désignés, sur proposition du Conseil national des greffiers des tribunaux de commerce, par le garde des sceaux, ministre de la justice ; ils ne peuvent siéger lorsqu'ils sont personnellement intéressés.
Pour chaque siège, un suppléant est désigné dans les mêmes conditions.
Le secrétariat de la commission est assuré par un magistrat ou un fonctionnaire de l'administration centrale du ministère de la justice.
Les fonctions de membre de la commission sont gratuites.
Article R743-175
Le greffier, dans le cas prévu au 1° de l'article R. 743-173, ou l'agent judiciaire du Trésor, dans le cas prévu au 2° du même article, saisit la commission par lettre recommandée avec demande d'avis de réception.
Le secrétariat de la commission avise les intéressés de la date à laquelle la demande sera examinée. La commission peut entendre les intéressés, en personne ou par mandataire, le cas échéant à leur demande, et exiger la communication de tout document qu'elle estime utile.
La commission doit se prononcer dans le délai de trois mois à compter du dépôt de la demande accompagnée de l'ensemble des pièces nécessaires à l'instruction du dossier. Le président de la commission transmet la proposition de celle-ci, qui est motivée, au garde des sceaux, ministre de la justice, et au ministre chargé du budget, dans le délai de quinze jours à compter de son adoption. Il la notifie également, dans le même délai, au greffier et à l'agent judiciaire du Trésor, par lettre recommandée avec demande d'avis de réception. Le procès-verbal de notification est joint au dossier de la commission.
Le greffier peut, dans le délai de quinze jours à compter de la notification et dans la même forme, faire connaître au garde des sceaux, ministre de la justice, et au ministre chargé du budget que la proposition de la commission ne reçoit pas son agrément.
Article R743-176
Les indemnités qui peuvent être dues entre les officiers publics ou ministériels, les anciens officiers publics ou ministériels non encore remplacés ou leurs ayants droit, autres que ceux qui sont mentionnés à l'article R. 743-169, en raison des modifications de compétence territoriale, sont, en l'absence de conventions intervenues entre les intéressés sous le contrôle du garde des sceaux, ministre de la justice, fixées et réparties suivant la procédure suivie en cas de suppression d'offices publics et ministériels.
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Article R743-177
Des arrêtés conjoints peuvent être pris par le garde des sceaux, ministre de la justice, les ministres chargés de l'économie et de l'industrie pour déterminer les modalités d'application de la présente sous-section.
Section 5 : Compte affecté aux fonds détenus pour le compte de tiers
Article R743-178
Sont déposés sur un compte de dépôt, spécialement affecté, ouvert auprès de la Caisse des dépôts et consignations, les fonds suivants détenus par les greffiers des tribunaux de commerce pour le compte de tiers, pour l'exercice de leurs missions ou des mandats reçus :
1° Les provisions pour expertises judiciaires ;
2° Les séquestres attribués aux greffiers des tribunaux de commerce ;
3° Les sommes reçues en application de l'article L. 3253-15 du code du travail.
Chacune de ces catégories de fonds fait l'objet de l'ouverture d'un compte de dépôt distinct auprès de la Caisse des dépôts et consignations.
Article R743-179
Les seuls mouvements autorisés sur les comptes de dépôt mentionnés à l'article R. 743-178 sont :
# en entrée, les sommes reçues par les greffiers des tribunaux de commerce pour le compte de tiers, en application de l'article R. 743-178, ainsi que, le cas échéant, les sommes reçues de la liquidation des placements financiers opérés au titre des missions de séquestre qui leur sont confiées ;
# en sortie, les sommes prélevées et versées en exécution des missions confiées et des mandats reçus et, le cas échéant, les sommes destinées à constituer les placements financiers opérés au titre des missions de séquestre qui leur sont confiées. Un compte de placement identifié est ouvert pour chaque mission de séquestre.
Article R743-180
A tout moment, le total des sommes dont le greffier des tribunaux de commerce est comptable au titre des missions exercées et des mandats reçus en application de l'article R. 743-178 doit être
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couvert par les fonds, effets ou valeurs appartenant à autrui ayant fait l'objet soit d'un dépôt sur les comptes mentionnés à l'article R. 743-178, soit d'un placement financier tel que prévu à l'article R. 743-179.
La compensation ne peut intervenir, sauf convention contraire, qu'entre les fonds de tiers encaissés et les frais exposés dans un même dossier.
Article R743-181
Dans le cadre d'une comptabilité spéciale tenue dans leurs livres, les greffiers des tribunaux de commerce ouvrent, pour les mandats reçus, un compte qui enregistre l'ensemble des mouvements concernant ces mandats ainsi que les opérations liées à ces mouvements.
Ils tiennent à cet effet au moins un journal général, un grand livre, une balance générale et un répertoire des actes, lesquels doivent pouvoir faire l'objet d'une édition à première demande.
Ils tiennent également un tableau de bord et une liste journalière de chacun des comptes mouvementés.
Une balance générale annuelle et une balance détaillée des dossiers sont arrêtées et sauvegardées le dernier jour ouvré de l'année civile.
Article R743-182
Un arrêté conjoint du ministre chargé de l'économie et du garde des sceaux, ministre de la justice, précise les modalités selon lesquelles sont opérés les mouvements sur les comptes de dépôt visés à l'article R. 743-178, les conditions de la rémunération des sommes déposées sur ces comptes ainsi que le contenu d'une convention type qui définit les rapports entre la Caisse des dépôts et consignations et les greffiers des tribunaux de commerce.
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Partie réglementaire
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce.
TITRE V : De l'aménagement commercial.
Chapitre Ier : Des commissions d'aménagement commercial et des observatoires départementaux d'équipement commercial.
Section 1 : Des commissions départementales d'aménagement commercial.
Article R751-1
La commission départementale d'aménagement commercial est constituée par arrêté préfectoral, publié au recueil des actes administratifs.
Article R751-2
Lorsqu'un projet est envisagé sur le territoire de plusieurs communes ou de plusieurs cantons, sont considérés comme la commune ou le canton d'implantation celle ou celui dont le territoire accueille la plus grande partie des surfaces de vente demandées pour le ou les établissements projetés, ou, dans le cadre d'un projet d'aménagement cinématographique, la plus grande partie des surfaces de l'ensemble de salles de spectacles cinématographiques faisant l'objet de la demande d'autorisation.
Le maire de la commune d'implantation ne peut pas siéger à la commission en une autre qualité que celle de représentant de sa commune. Il en est de même du maire de la commune la plus peuplée de l'arrondissement ou de l'agglomération multicommunale lorsque celle-ci n'est pas la commune d'implantation.
Lorsque la commune d'implantation fait partie d'un établissement public de coopération intercommunale compétent en matière d'aménagement de l'espace et de développement, cet établissement est représenté par son président ou par un membre du conseil communautaire désigné par le président. Le président de cet établissement ne peut pas être représenté par un élu de la commune d'implantation ni par un élu de la commune la plus peuplée de l'arrondissement ou de l'agglomération multicommunale lorsque celle-ci n'est pas la commune d'implantation.
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Lorsque la commune d'implantation fait partie d'un établissement public compétent en matière de schéma de cohérence territoriale, cet établissement est représenté par son président ou par un membre du conseil communautaire désigné par le président. Le président de cet établissement ne peut pas être représenté par un élu de la commune d'implantation ni par un élu de la commune la plus peuplée de l'arrondissement ou de l'agglomération multicommunale lorsque celle-ci n'est pas la commune d'implantation.
Le président du conseil général ne peut pas être représenté par un élu de la commune d'implantation ni par un élu de la commune la plus peuplée de l'arrondissement ou de l'agglomération multicommunale lorsque celle-ci n'est pas la commune d'implantation.
Lorsque le maire de la commune d'implantation, le maire de la commune la plus peuplée de l'arrondissement ou de l'agglomération multicommunale lorsque celle-ci n'est pas la commune d'implantation, le président du conseil général ou le président de l'établissement public compétent en matière de schéma de cohérence territoriale est en même temps conseiller général du canton d'implantation, le préfet désigne pour remplacer ce dernier le maire d'une commune située dans la zone de chalandise ou dans la zone d'influence cinématographique dans le cadre d'un projet d'aménagement cinématographique.
Article R751-3
Pour assurer la présidence de la commission départementale d'aménagement commercial, le préfet peut se faire représenter par un fonctionnaire du corps préfectoral affecté dans le département.
Un arrêté préfectoral désigne des personnalités qualifiées en les répartissant au sein de trois collèges établis à raison d'un collège par domaine visé au 2° du II et au III de l'article L. 751-2 du présent code.
Ces personnalités exercent un mandat de trois ans et ne peuvent, sauf en ce qui concerne les membres du comité consultatif de diffusion cinématographique mentionnés au IV de l'article précité, effectuer plus de deux mandats consécutifs.
Pour chaque demande d'autorisation, le préfet nomme pour siéger à la commission une personnalité qualifiée au sein de chacun des collèges.
Si elles perdent la qualité en vertu de laquelle elles ont été désignées ou en cas de démission, de décès ou de déménagement hors des frontières du département, les personnalités qualifiées sont immédiatement remplacées pour la durée du mandat restant à courir.
Article R751-4
Lorsque la zone de chalandise ou la zone d'influence cinématographique du projet, telle qu'elle figure au dossier du demandeur, dépasse les limites du département, le représentant de l'Etat dans le département d'implantation détermine, pour chacun des autres départements concernés, le nombre d'élus et de personnalités qualifiées appelés à compléter la composition de la commission.
Le nombre d'élus ne peut être supérieur à cinq pour chacun des autres départements concernés. Ces membres sont des élus de communes appartenant à la zone de chalandise ou à la zone d'influence
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cinématographique.
Le nombre de personnalités qualifiées ne peut excéder trois pour chaque autre département concerné.
Sur proposition du préfet de chacun des autres départements concernés, le préfet du département d'implantation désigne les membres visés au premier alinéa.
Article R751-5
Pour la commission départementale d'aménagement commercial de Paris, le conseil de Paris établit une liste composée de quatre conseillers d'arrondissement au sein de laquelle est choisi le conseiller d'arrondissement appelé à siéger à la commission. En cas d'empêchement du conseiller d'arrondissement appelé à siéger, son remplaçant est choisi sur la même liste.
Le conseil régional d'Ile-de-France établit une liste composée de quatre conseillers régionaux au sein de laquelle est choisi le conseiller régional appelé à siéger à la commission. En cas d'empêchement du conseiller régional appelé à siéger, son remplaçant est choisi sur la même liste.
Article R751-6
Pour chaque demande d'autorisation, un arrêté préfectoral fixe la composition de la commission.
Les élus locaux sont désignés en la qualité en vertu de laquelle ils sont appelés à siéger.
Article R751-7
Les membres de la commission remplissent un formulaire destiné à la déclaration des intérêts qu'ils détiennent et des fonctions qu'ils exercent dans une activité économique. Aucun membre ne peut siéger s'il n'a remis au président de la commission ce formulaire dûment rempli.
Est déclaré démissionnaire d'office par le président de la commission tout membre qui ne remplit pas les obligations prévues à l'article L. 751-7.
Section 2 : De la Commission nationale d'aménagement commercial.
Article R751-8
Le président de la Commission nationale d'aménagement commercial est suppléé, en cas d'absence ou d'empêchement, par le membre de la Cour des comptes et, en cas d'absence ou d'empêchement de celui-ci, par le membre de l'inspection générale des finances.
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Le président a qualité pour signer tout mémoire dans les recours contre les décisions de la Commission nationale d'aménagement commercial.
Article R751-9
Le mandat des membres de la Commission nationale d'aménagement commercial n'est pas interrompu par les règles concernant la limite d'âge éventuellement applicable aux intéressés.
En cas d'empêchement d'une durée supérieure à six mois, constaté par son président, de démission ou de décès de l'un des membres de la Commission nationale d'aménagement commercial, il est procédé, dans les mêmes conditions, à la désignation d'un remplaçant pour la durée du mandat restant à courir.
Si cette nomination intervient moins d'un an avant l'expiration de ce mandat, le remplaçant peut accomplir un autre mandat.
Est déclaré démissionnaire d'office par le président de la commission tout membre qui ne remplit pas les obligations prévues à l'article L. 751-7.
Pour chacun des membres hormis le président, un suppléant est nommé dans les mêmes conditions que celles de désignation du membre titulaire.
Article R751-10
I. - Le secrétariat de la Commission nationale d'aménagement commercial siégeant en matière d'équipements commerciaux est assuré par les services du ministre chargé du commerce.
Dans ce cas, le commissaire du Gouvernement auprès de la commission est le directeur chargé du commerce ou son représentant.
II. - Le secrétariat de la Commission nationale d'aménagement commercial statuant en matière cinématographique est assuré par le Centre national de la cinématographie.
Dans ce cas, le commissaire du Gouvernement auprès de la commission est le directeur général du Centre national de la cinématographie ou son représentant.
Article R751-11
La Commission nationale d'aménagement commercial élabore son règlement intérieur.
Section 3 : Des observatoires départementaux d'aménagement commercial.
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Article R751-12
Un observatoire départemental d'aménagement commercial est constitué par arrêté préfectoral.
Il a pour mission :
1° D'établir, par commune et par grandes catégories de commerces, un inventaire des équipements commerciaux :
a) D'une surface de vente égale ou supérieure à 300 mètres carrés et inférieure à 1 000 mètres carrés ;
b) D'une surface de vente égale ou supérieure à 1 000 mètres carrés ;
2° D'établir, par commune, la liste des magasins de commerce de détail et des prestataires de services à caractère artisanal d'une surface de vente inférieure à 300 mètres carrés ;
3° D'analyser l'évolution de la répartition géographique de l'appareil commercial du département.
Il établit chaque année un rapport, rendu public.
Le secrétariat de l'observatoire est assuré par le secrétaire de la commission départementale d'aménagement commercial.
Article R751-13
L'observatoire départemental d'aménagement commercial est présidé par le préfet ou son représentant.
Il est composé, suivant des modalités fixées par arrêté du ministre chargé du commerce :
1° D'élus locaux ;
2° De représentants des activités commerciales et artisanales ;
3° De représentants des chambres de commerce et d'industrie et des chambres de métiers et d'artisanat ;
4° De représentants des consommateurs ;
5° De personnalités qualifiées ;
6° De représentants des administrations.
Article R751-14
Le mandat des membres est de trois ans. Il est renouvelable.
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Article R751-15
Les dispositions de la présente section ne s'appliquent pas aux départements de la région Ile-de-France.
Section 4 : De l'observatoire d'aménagement commercial d'Ile-de-France.
Article R751-16
Un observatoire d'aménagement commercial d'Ile-de-France est constitué par arrêté du préfet de région. Il a pour mission :
1° D'établir, par commune et par grandes catégories de commerces, un inventaire des équipements commerciaux :
a) D'une surface de vente égale ou supérieure à 300 mètres carrés et inférieure à 1 000 mètres carrés ;
b) D'une surface de vente égale ou supérieure à 1 000 mètres carrés ;
2° D'établir, par commune, la liste des magasins de commerce de détail et des prestataires de services à caractère artisanal d'une surface de vente inférieure à 300 mètres carrés ;
3° D'analyser l'évolution de la répartition géographique de l'appareil commercial de la région.
Il établit chaque année un rapport rendu public.
Le secrétariat de l'observatoire d'aménagement commercial d'Ile-de-France est assuré par le secrétaire général pour les affaires régionales.
Article R751-17
L'observatoire d'aménagement commercial d'Ile-de-France est présidé par le préfet de région.
Il est composé, selon des modalités fixées par arrêté du ministre chargé du commerce, des catégories de personnes mentionnées à l'article R. 751-13.
Le mandat de ses membres est de trois ans. Il est renouvelable.
Section 5 : Des schémas de développement commercial.
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Article R751-18
Le schéma de développement commercial est un document qui rassemble des informations disponibles sur l'activité commerciale et son environnement économique.
Il comporte, dans le respect des dispositions du dernier alinéa de l'article L. 122-1 du code de l'urbanisme, une analyse prospective qui indique les orientations en matière de développement commercial et les secteurs d'activité commerciale à privilégier.
Article R751-19
La commune ou, s'il existe, l'établissement public chargé du schéma de cohérence territoriale ou, à défaut, l'établissement public de coopération intercommunale peut élaborer pour son territoire et en fonction des caractéristiques de celui-ci un schéma de développement commercial couvrant l'ensemble de l'activité commerciale.
Le département peut, le cas échéant, également élaborer un schéma de développement commercial.
Article R751-20
Le schéma de développement commercial est établi pour une durée déterminée par la collectivité territoriale ou le groupement en charge de son élaboration.
Chapitre II : De l'autorisation commerciale
Section 1 : Des projets soumis à autorisation ou à avis des commissions d'aménagement commercial.
Article R752-1
Dans le cas où des commerces soumis à autorisation sont équipés de stations de distribution de carburants, les surfaces de vente correspondant à cette activité ne sont pas prises en compte pour la détermination de la surface autorisée.
Article R752-2
Pour déterminer la surface de vente des établissements exploités par des pépiniéristes ou des
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horticulteurs, seules sont prises en compte les surfaces destinées à la vente de produits ne provenant pas de l'exploitation.
Ces produits ne doivent pas être présentés sur plus de cinq espaces distincts et clairement délimités.
Article R752-3
Les secteurs d'activité mentionnés au 3° du I de l'article L. 752-1 sont les suivants :
1° Le commerce de détail à prédominance alimentaire ;
2° Les autres commerces de détail et les activités de prestation de services à caractère artisanal.
Les activités constituant ces deux secteurs sont définies par arrêté du ministre chargé du commerce, par référence à la nomenclature d'activités française annexée au décret n° 2007-1888 du 26 décembre 2007 portant approbation des nomenclatures d'activités et de produits françaises.
Article R752-4
Pour l'application des dispositions prévues aux 4° et 5° du I de l'article L. 752-1, il n'est pas tenu compte de la surface des pharmacies, des commerces de véhicules automobiles et de motocycles et des installations de distribution de carburants.
Section 2 : De la décision de la commission départementale.
Sous-section 1 : De la demande d'autorisation.
Article R752-6
La demande d'autorisation prévue à l'article L. 752-1 et à l'article 30-2 du code de l'industrie cinématographique est présentée soit par le propriétaire de l'immeuble, soit par une personne justifiant d'un titre l'habilitant à construire sur le terrain ou à exploiter commercialement l'immeuble.
Article R752-7
La demande est accompagnée :
1° D'un plan indicatif faisant apparaître la surface de vente des commerces ;
2° Des renseignements suivants :
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a) Délimitation de la zone de chalandise du projet, telle que définie à l'article R. 752-8, et mention de la population de chaque commune comprise dans cette zone ainsi que de son évolution entre les deux derniers recensements authentifiés par décret ;
b) Desserte en transports collectifs et accès pédestres et cyclistes ;
c) Capacités d'accueil pour le chargement et le déchargement des marchandises.
II.-La demande est également accompagnée d'une étude destinée à permettre à la commission d'apprécier les effets prévisibles du projet au regard des critères prévus par l'article L. 752-6. Celle-ci comporte les éléments permettant d'apprécier les effets du projet sur :
1° L'accessibilité de l'offre commerciale ;
2° Les flux de voitures particulières et de véhicules de livraison ainsi que sur les accès sécurisés à la voie publique ;
3° La gestion de l'espace ;
4° Les consommations énergétiques et la pollution ;
5° Les paysages et les écosystèmes.
III.-La demande portant sur les projets d'aménagement cinématographique est accompagnée de renseignements et documents dont la liste est fixée par un arrêté du ministre chargé de la culture. Pour les projets ayant pour objet l'extension d'un établissement de spectacles cinématographiques, le délai de cinq ans prévu au 2° du I de l'article 30-2 du code de l'industrie cinématographique court à compter de la date d'enregistrement par le Centre national de la cinématographie du premier bordereau de déclarations de recettes de la dernière salle de l'établissement mise en exploitation.
IV.-Un arrêté du ministre compétent précise en tant que de besoin les modalités de présentation de la demande.
Article R752-8
I.-Pour l'application de l'article L. 751-2, la zone de chalandise d'un équipement faisant l'objet d'une demande d'autorisation d'exploitation commerciale correspond à l'aire géographique au sein de laquelle cet équipement exerce une attraction sur la clientèle.
Cette zone est délimitée en tenant compte notamment de la nature et de la taille de l'équipement envisagé, des temps de déplacement nécessaires pour y accéder, de la présence d'éventuelles barrières géographiques ou psychologiques, de la localisation et du pouvoir d'attraction des équipements commerciaux existants ainsi que de la localisation des magasins exploités sous la même enseigne que celle de l'établissement concerné.
II.-Pour l'application de l'article 30-3 du code de l'industrie cinématographique, la zone d'influence cinématographique d'un établissement de spectacles cinématographiques faisant l'objet d'une demande d'autorisation d'exploitation commerciale correspond à l'aire géographique au sein de laquelle cet établissement exerce une attraction sur les spectateurs.
Cette zone est délimitée en tenant compte notamment de la nature et de la taille de l'établissement
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envisagé, des temps de déplacement nécessaires pour y accéder, de la présence d'éventuelles barrières géographiques ou psychologiques, de la localisation et du pouvoir d'attraction des établissements de spectacles cinématographiques existants ainsi que de la localisation des établissements exploités sous la même enseigne que celle de l'établissement concerné.
Article R752-9
Pour les projets de magasins de commerce de détail, la demande précise :
1° En cas de création, la surface de vente et le secteur d'activité, tel que défini à l'article R. 752-4, de chacun des magasins de plus de 1 000 mètres carrés, ainsi que, le cas échéant, la surface de vente globale du projet ;
2° En cas d'extension, la surface de vente actuellement exploitée et la surface projetée de chacun des magasins.
Article R752-10
En cas d'extension, la demande est accompagnée, le cas échéant, d'une attestation du Régime social des indépendants reprenant les éléments contenus dans la plus récente déclaration annuelle établie au titre de l'article 4 de la loi n° 72-657 du 13 juillet 1972 instituant des mesures en faveur de certaines catégories de commerçants et artisans âgés et, si l'établissement est redevable de la taxe sur les surfaces commerciales, indiquant s'il est à jour de ses paiements.
Article R752-11
La demande de changement de secteur d'activité d'un commerce de détail prévue au 3° du I de l'article L. 752-1 est accompagnée de tout document justifiant du droit du demandeur à exploiter son établissement dans le nouveau secteur d'activité.
Article R752-12
La demande d'autorisation est soit adressée au préfet sous pli recommandé avec demande d'avis de réception, soit déposée contre décharge au secrétariat de la commission, soit adressée par voie électronique. Dans ce dernier cas, l'accusé de réception électronique est adressé sans délai.
Article R752-13
Dès réception de la demande, si le dossier est complet, le préfet fait connaître au demandeur son numéro d'enregistrement et la date avant laquelle la décision doit lui être notifiée. Le délai d'instruction court, sous réserve des dispositions prévues à l'article R. 752-14, à compter du jour de
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la décharge ou de l'avis de réception ou de l'accusé de réception électronique prévus à l'article R. 752-12.
La lettre du préfet avise en outre le demandeur que, si aucune décision ne lui a été adressée avant la date mentionnée à l'alinéa précédent, l'autorisation est réputée accordée.
Article R752-14
Si le dossier est incomplet, le préfet, dans les quinze jours de la réception de la demande, invite l'intéressé, par lettre recommandée avec demande d'avis de réception, à fournir les pièces complémentaires.
Lorsque toutes ces pièces ont été produites, il est fait application de l'article R. 752-13 et le délai d'instruction court à compter de la réception de la dernière pièce complétant le dossier.
Article R752-15
Dans le cas où le demandeur n'a pas reçu, dans les quinze jours suivant la réception de sa demande par le secrétariat de la commission départementale d'aménagement commercial, la lettre prévue à l'article R. 752-13 ou R. 752-14, le délai d'instruction court à compter du jour de la décharge ou de l'avis de réception prévu à l'article R. 752-12.
Sous-section 2 : De la procédure d'autorisation.
Article R752-16
Le secrétariat de la commission départementale d'aménagement commercial est assuré par les services de la préfecture, qui examinent la recevabilité des demandes.
Pour les projets d'aménagement commercial, l'instruction des demandes est effectuée conjointement par les services territorialement compétents chargés du commerce ainsi que ceux chargés de l'urbanisme et de l'environnement.
Le directeur des services chargés de l'urbanisme et de l'environnement, qui peut se faire représenter, rapporte les dossiers.
Pour les projets d'aménagement cinématographique, l'instruction des demandes est effectuée par la direction régionale des affaires culturelles. Le directeur régional des affaires culturelles, qui peut se faire représenter, rapporte les dossiers.
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Article R752-17
Dans le délai d'un mois à compter de la date d'enregistrement d'une demande d'autorisation, les membres de la commission départementale d'aménagement commercial reçoivent, par lettre recommandée avec demande d'avis de réception, communication de cette demande accompagnée :
1° De l'arrêté préfectoral fixant la composition de la commission ;
2° De la lettre d'enregistrement de la demande prévue à l'article R. 752-13 ;
3° Du formulaire prévu à l'article R. 751-7.
Sur leur demande, les membres de la commission peuvent recevoir l'ensemble de ces documents par voie électronique.
Article R752-18
Cinq jours au moins avant la réunion, les membres titulaires de la commission départementale d'aménagement commercial reçoivent, par lettre recommandée avec demande d'avis de réception, communication de l'ordre du jour, accompagné des rapports d'instruction élaborés par les services visés aux deuxième et quatrième alinéas de l'article R. 752-16.
La communication de ces documents aux élus locaux appelés à siéger à la commission départementale d'aménagement commercial vaut transmission à leurs représentants.
Article R752-19
Lorsqu'une nouvelle demande est présentée, en application de l'article L. 752-15, à la suite de modifications substantielles du projet ou d'un changement d'enseigne, les renseignements fournis à l'appui de cette demande décrivent les modifications envisagées et leurs conséquences sur les éléments d'information contenus dans la demande initiale.
Article R752-20
La commission entend le demandeur à sa requête.
Elle peut entendre toute personne dont l'avis présente un intérêt pour la commission.
Toute autre personne souhaitant être entendue par la commission peut en faire la demande. Cette demande, formulée par écrit et notifiée au secrétariat de la commission au moins cinq jours avant la réunion de celle-ci, doit comporter les éléments justifiant, d'une part, de l'intérêt de la personne concernée à être entendue et, d'autre part, des motifs qui justifient son audition.
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Article R752-21
La commission départementale d'aménagement commercial ne peut délibérer que si au moins cinq de ses membres sont présents. Si ce quorum n'est pas atteint, il est procédé, sur le même ordre du jour, à une nouvelle convocation de la commission. Celle-ci ne peut valablement délibérer, à l'expiration d'un délai de trois jours après cette convocation, que si au moins quatre de ses membres sont présents.
Lorsqu'elle statue sur un projet dont la zone de chalandise ou la zone d'influence cinématographique dépasse les limites du département, la commission ne peut délibérer que si au moins la majorité de ses membres sont présents. Si ce quorum n'est pas atteint, il est procédé, sur le même ordre du jour, à une nouvelle convocation de la commission. Celle-ci ne peut valablement délibérer, à l'expiration d'un délai de cinq jours après cette convocation, qu'en présence, au moins, de quatre membres du département d'implantation et d'un tiers des membres de la commission.
Article R752-22
Les membres de la commission gardent le secret tant sur les délibérations que sur les documents dont ils ont eu connaissance à l'occasion de leurs fonctions.
Article R752-23
Un exemplaire du procès-verbal de la réunion de la commission est adressé par courrier simple dans le délai d'un mois à chaque membre de la commission ainsi qu'aux services de l'Etat, auteurs du rapport d'instruction du projet et, pour les projets d'aménagement cinématographique, au médiateur du cinéma.
Article R752-24
La commission se prononce par un vote à bulletins nominatifs. Sa décision motivée, signée par le président, indique le sens du vote émis par chacun des membres.
Lorsqu'elle concerne l'aménagement commercial, la décision décrit le projet autorisé et mentionne la surface de vente totale autorisée et, le cas échéant, la surface de vente et le secteur d'activité de chacun des magasins de plus de 1 000 mètres carrés ainsi que la ou les enseignes désignées.
Lorsqu'elle concerne l'aménagement cinématographique, la décision décrit le projet autorisé et mentionne le nombre de places autorisées.
Article R752-25
La décision de la commission est :
1° Notifiée au demandeur dans le délai de dix jours à compter de la date de la réunion de la
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commission soit par la voie administrative contre décharge, soit par lettre recommandée avec demande d'avis de réception, soit par courrier électronique dans les conditions prévues au quatrième alinéa du présent article.
Lorsque les courriers sont adressés au demandeur par lettre recommandée avec demande d'avis de réception, l'intéressé est réputé en avoir reçu notification à la date de présentation du courrier.
Lorsque la demande précise que le demandeur accepte de recevoir à une adresse électronique les réponses de l'autorité compétente, les notifications peuvent lui être adressées par courrier électronique. Dans ce cas, le demandeur est réputé avoir reçu ces notifications à la date à laquelle il les consulte à l'aide de la procédure électronique. Un accusé de réception électronique est adressé à l'autorité compétente au moment de la consultation du document.A défaut de consultation à l'issue d'un délai de trois jours après leur envoi, le demandeur est réputé avoir reçu ces notifications.
2° Affichée, à l'initiative du préfet, pendant un mois à la porte de la mairie de la commune d'implantation. En cas d'autorisation tacite, une attestation du préfet est affichée dans les mêmes conditions.
L'exécution de la formalité prévue au 2° fait l'objet d'une mention au recueil des actes administratifs de la préfecture.
Lorsqu'elle concerne l'aménagement cinématographique, la décision de la commission, ou le cas échéant l'attestation mentionnée au 2°, est notifiée par le préfet au médiateur du cinéma dans le délai de dix jours.
Sous-section 3 : Dispositions diverses.
Article R752-26
Lorsque la décision accorde l'autorisation demandée, le préfet fait publier, aux frais du bénéficiaire, un extrait de cette décision dans deux journaux régionaux ou locaux diffusés dans le département.
Il en est de même de l'attestation préfectorale en cas d'autorisation tacite.
En outre, une copie en est adressée à la Caisse nationale du régime social des indépendants.
Article R752-27
Lorsque la réalisation d'un projet autorisé ne nécessite pas de permis de construire, l'autorisation est périmée pour les surfaces de vente qui n'ont pas été ouvertes au public ou, en ce qui concerne les projets d'aménagement cinématographique, pour les places de spectateurs qui n'ont pas été mises en exploitation, dans un délai de trois ans à compter de la notification prévue à l'article R. 752-25 ou de la date à laquelle l'autorisation est réputée accordée en vertu de l'article L. 752-14.
Lorsque la réalisation d'un projet autorisé est subordonnée à l'obtention d'un permis de construire,
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l'autorisation est périmée si un dossier de demande de permis de construire considéré comme complet au regard des articles R. 423-19 à R. 423-22 du code de l'urbanisme n'est pas déposé dans un délai de deux ans à compter de la date fixée au premier alinéa.
Si la faculté de recours prévue à l'article L. 752-17 a été exercée, ces délais courent à compter de la date de la notification de la décision de la Commission nationale d'aménagement commercial.
En cas de suspension de l'exécution d'une autorisation, ces délais sont suspendus pendant la durée de la suspension.
Lorsqu'une demande de permis de construire a été déposée dans le délai et les conditions prévus au deuxième alinéa, l'autorisation est périmée pour les surfaces de vente qui n'ont pas été ouvertes au public ou, en ce qui concerne les projets d'aménagement cinématographique, pour les places de spectateurs qui n'ont pas été mises en exploitation, dans un délai de trois ans à compter de la date à laquelle le permis de construire est devenu définitif. Ce délai est prolongé de deux ans pour les projets qui portent sur la réalisation de plus de 6 000 mètres carrés de surface de vente.
Article R752-28
Pour les magasins de commerce de détail, un plan coté des surfaces de vente réalisées est déposé auprès des services de l'Etat chargés du commerce et de la consommation, par le titulaire de l'autorisation, huit jours au moins avant leur ouverture au public.
Section 3 : De l'avis des commissions d'aménagement commercial.
Article R752-29
La procédure de consultation prévue par l'article L. 752-4 est applicable pour les demandes de permis de construire portant sur des projets qui ne sont pas soumis à une autorisation d'exploitation commerciale et à condition :
-s'il s'agit de la création d'un magasin ou d'un ensemble commercial, que la surface de vente de ce magasin ou de cet ensemble commercial soit supérieure à 300 mètres carrés et inférieure ou égale à 1 000 mètres carrés ;
-s'il s'agit de l'extension d'un magasin ou d'un ensemble commercial, que la surface de vente du magasin ou de l'ensemble commercial après réalisation de l'extension soit supérieure à 300 mètres carrés et inférieure ou égale à 1 000 mètres carrés.
Article R752-30
Pour la mise en œuvre de la procédure prévue à l'article L. 752-4, si la délibération du conseil municipal n'est pas transmise au pétitionnaire dans un délai d'un mois à compter de la date de la
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réception de la demande de permis de construire par le maire, le conseil municipal ne peut plus saisir la commission départementale d'aménagement commercial afin qu'elle statue sur la conformité du projet aux critères énoncés à l'article L. 752-6.
Si la délibération de l'organe délibérant de l'établissement public de coopération intercommunale compétent en matière d'urbanisme n'est pas transmise au pétitionnaire dans un délai d'un mois à compter de la date de la réception de la demande de permis de construire par le président de cet établissement, l'organe délibérant de cet établissement ne peut plus saisir la commission départementale d'aménagement commercial afin qu'elle statue sur la conformité du projet aux critères énoncés à l'article L. 752-6.
Si la délibération de l'organe délibérant de l'établissement public de coopération intercommunale visé à l'article L. 122-4 du code de l'urbanisme n'est pas transmise au pétitionnaire dans un délai d'un mois à compter de la date de la notification prévue au deuxième alinéa de l'article L. 752-4, l'organe délibérant de cet établissement ne peut plus saisir la commission départementale d'aménagement commercial afin qu'elle statue sur la conformité du projet aux critères énoncés à l'article L. 752-6.
La délibération mentionnée au troisième alinéa de l'article L. 752-4 est transmise au pétitionnaire et au préfet par pli recommandé avec demande d'avis de réception.
Article R752-31
Lorsque le maire n'est pas l'autorité compétente pour délivrer le permis de construire, il ne dispose pas de la faculté de proposer au conseil municipal de saisir la commission départementale d'aménagement commercial.
Lorsque l'établissement public chargé du schéma de cohérence territoriale est un syndicat mixte, son président ne peut pas faire usage de la procédure prévue à l'article L. 752-4.
Article R752-32
La demande de l'avis prévu à l'article L. 752-4 est présentée par l'autorité compétente pour délivrer le permis de construire ou par le président de l'établissement public de coopération intercommunale visé à l'article L. 122-4 du code de l'urbanisme. Cette demande est motivée et est accompagnée de la délibération mentionnée au troisième alinéa de l'article L. 752-4.
La demande d'avis est soit adressée au préfet sous pli recommandé avec demande d'avis de réception, soit déposée contre décharge au secrétariat de la commission.
Article R752-33
Le demandeur du permis de construire transmet à la commission d'aménagement commercial toutes pièces qu'il souhaite soumettre à l'examen de cette commission.
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Pour l'examen de la demande d'avis prévue à l'article L. 752-4, la commission ne rassemble que des élus et des personnalités qualifiées du département d'implantation du projet.
Article R752-34
Dès réception de la demande de l'avis prévu à l'article L. 752-4, le préfet fait connaître au demandeur du permis de construire son numéro d'enregistrement et le délai imparti à la commission pour statuer.
Le délai d'instruction court à compter du jour de la décharge ou de l'avis de réception prévu au deuxième alinéa de l'article R. 752-32.
La lettre du préfet informe en outre le demandeur que, si aucun avis ne lui a été adressé avant la date visée à l'alinéa précédent, l'avis est réputé favorable.
Article R752-35
Dans le délai de quinze jours à compter de la date d'enregistrement de la demande de l'avis prévu à l'article L. 752-4, les membres de la commission départementale d'aménagement commercial reçoivent, par lettre recommandée avec demande d'avis de réception, communication :
1° De l'arrêté préfectoral fixant la composition de la commission ;
2° De la lettre d'enregistrement prévue à l'article R. 752-34 ;
3° Du formulaire prévu à l'article R. 751-7 ;
4° Des pièces transmises, le cas échéant, par le pétitionnaire.
Article R752-36
Trois jours au moins avant la réunion, les membres titulaires de la commission départementale d'aménagement commercial reçoivent, par lettre recommandée avec demande d'avis de réception, communication de l'ordre du jour, accompagné des rapports d'instruction élaborés par les services visés au deuxième alinéa de l'article R. 752-16.
En ce qui concerne les élus locaux appelés à siéger à la commission départementale d'aménagement commercial, la communication de ces documents à ces derniers vaut transmission à leurs représentants.
Article R752-37
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La commission entend le demandeur à sa requête.
Elle peut entendre toute personne dont l'avis présente un intérêt pour la commission et à condition que cet avis soit formulé par écrit et notifié au secrétariat de la commission avant la réunion de celle-ci.
Article R752-38
La commission départementale d'aménagement commercial ne peut délibérer que si au moins cinq de ses membres sont présents. Si ce quorum n'est pas atteint, il est procédé, sur le même ordre du jour, à une nouvelle convocation de la commission dans un délai de vingt-quatre heures.
Article R752-39
Les membres de la commission gardent le secret tant sur les délibérations que sur les documents dont ils ont eu connaissance à l'occasion de leurs fonctions.
Article R752-40
Un exemplaire du procès-verbal de la réunion de la commission est adressé par courrier simple à chaque membre de la commission.
Article R752-41
La commission se prononce par un vote à bulletins nominatifs. Le sens de son avis est adopté à la majorité absolue des membres présents. Son avis motivé, signé par le président, indique le sens du vote émis par chacun des membres.
Article R752-42
L'avis de la commission est notifié, dans le délai de dix jours, au demandeur et à l'autorité compétente à l'origine de la saisine soit par la voie administrative contre décharge, soit par lettre recommandée avec demande d'avis de réception, soit par courrier électronique dans les conditions prévues au troisième alinéa du présent article.
Lorsque les courriers sont adressés au demandeur par lettre recommandée avec demande d'avis de réception, l'intéressé est réputé en avoir reçu notification à la date de première présentation du courrier.
Lorsque la demande précise que le demandeur accepte de recevoir à une adresse électronique l'avis de la commission départementale d'aménagement commercial, la notification de cet avis peut lui être adressée par courrier électronique. Dans ce cas, le demandeur est réputé avoir reçu cette notification à la date à laquelle il la consulte à l'aide de la procédure électronique. Un accusé de réception électronique est adressé à l'autorité compétente au moment de la consultation du document.A défaut de consultation à l'issue d'un délai de trois jours après son envoi, le demandeur
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est réputé avoir reçu cette notification.
Article R752-43
A défaut d'avis rendu par la commission avant l'expiration du délai prévu par le cinquième alinéa de l'article L. 752-4, l'avis de la commission départementale d'aménagement commercial est réputé favorable.
Article R752-44
L'avis de la commission départementale d'aménagement commercial, ou, le cas échéant, de la Commission nationale d'aménagement commercial, doit être motivé.
A l'initiative du demandeur, seul un avis défavorable de la commission départementale d'aménagement commercial peut, dans un délai d'un mois, faire l'objet d'un recours devant la Commission nationale d'aménagement commercial.
Section 4 : Des recours contre la décision ou l'avis de la commission départementale.
Article R752-45
Lorsqu'il est exercé par le préfet ou par le médiateur du cinéma, le recours devant la Commission nationale d'aménagement commercial prévu à l'article L. 752-17 est fait en la forme administrative ordinaire.
Article R752-46
Le recours prévu à l'article L. 752-17, lorsqu'il est introduit par des personnes autres que le préfet ou le médiateur du cinéma, est adressé, par lettre recommandée avec demande d'avis de réception, au président de la Commission nationale d'aménagement commercial.
Sous peine d'irrecevabilité, chaque recours est accompagné de motivations et de la justification de l'intérêt à agir de chaque requérant.
Lorsque le recours est exercé par plusieurs personnes, ses auteurs font élection de domicile en un seul lieu ; à défaut, les notifications, convocations ou autres actes sont valablement adressés au domicile du premier signataire.
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Article R752-47
Pour chaque recours exercé, le président de la Commission nationale d'aménagement commercial informe le préfet du dépôt du recours.
Article R752-48
Le délai de recours d'un mois prévu à l'article L. 752-17 court :
a) Pour le demandeur, à compter de la date de notification de la décision de la commission départementale d'aménagement commercial ;
b) Pour le préfet et les membres de la commission, à compter de la date de la réunion de la commission ou de la date à laquelle l'autorisation est réputée accordée ;
c) Pour le médiateur du cinéma, à compter de la date de notification de la décision de la commission départementale d'aménagement commercial statuant en matière cinématographique ou de la date de notification de l'attestation du préfet lorsque l'autorisation est réputée accordée ;
d) Pour toute autre personne ayant intérêt à agir :- si le recours est exercé contre une décision de refus, à compter du premier jour de la période d'affichage en mairie ;- si le recours est exercé contre une décision d'autorisation, à compter de la plus tardive des mesures de publicité prévues aux articles R. 752-25 et R. 752-26.
Article R752-49
La Commission nationale d'aménagement commercial se réunit sur convocation de son président.
Les membres de la Commission nationale d'aménagement commercial reçoivent l'ordre du jour, accompagné des procès-verbaux des réunions des commissions départementales d'aménagement commercial, des décisions de ces commissions, des recours et des rapports des services instructeurs départementaux.
La commission ne peut valablement délibérer qu'en présence de cinq membres au moins.
Le secrétaire de la Commission nationale d'aménagement commercial rapporte les dossiers.
Article R752-50
Les membres de la Commission nationale d'aménagement commercial gardent le secret tant sur les délibérations que sur les documents dont ils ont eu connaissance à l'occasion de leurs fonctions.
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Article R752-51
La Commission nationale d'aménagement commercial entend, à leur requête, le maire de la commune d'implantation, l'auteur de la demande d'autorisation ainsi que l'auteur ou l'un des auteurs du recours.
Elle peut entendre toute personne qu'elle juge utile de consulter.
Toute autre personne souhaitant être entendue par la commission peut en faire la demande. Cette demande, formulée par écrit et notifiée au secrétariat de la commission au moins cinq jours avant la réunion de celle-ci, doit comporter les éléments justifiant, d'une part, de l'intérêt de la personne concernée à être entendue et, d'autre part, des motifs qui justifient son audition.
Le commissaire du Gouvernement recueille les avis des ministres intéressés, qu'il présente à la commission. Il donne son avis sur les demandes examinées par la Commission nationale d'aménagement commercial au regard des auditions effectuées.
Article R752-52
La décision de la Commission nationale d'aménagement commercial, signée du président, est notifiée, dans un délai de deux mois, au ministre chargé du commerce ou, lorsqu'elle concerne un projet d'aménagement cinématographique, au ministre chargé de la culture, aux requérants et à l'auteur de la demande d'autorisation s'il n'est pas requérant.
Le délai de quatre mois prévu à l'article L. 752-17 court à compter de la date de réception du recours.
La décision de la Commission nationale est notifiée au préfet pour être affichée et publiée dans les conditions prévues aux articles R. 752-25 et R. 752-26. En cas d'autorisation, il en adresse également une copie à la Caisse nationale du régime social des indépendants.
La décision de la Commission nationale est portée à la connaissance du public par voie électronique.
Section 5 : Des sanctions.
Article R752-53
Sans préjudice de l'application des sanctions prévues par le code de l'urbanisme, est puni de l'amende prévue pour les contraventions de la 5e classe le fait pour quiconque, sans être titulaire de l'autorisation requise ou en méconnaissance de ses prescriptions, soit d'entreprendre ou de faire entreprendre des travaux aux fins de réaliser un des projets prévus à l'article 30-2 du code de l'industrie cinématographique, soit d'exploiter ou de faire exploiter un établissement de spectacles
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cinématographiques soumis aux obligations édictées par cet article.
En cas d'exploitation irrégulière d'un établissement de spectacles cinématographiques, l'infraction est constituée par jour d'exploitation et par place de spectateur exploitée irrégulièrement.
S'il y a récidive, la peine d'amende prévue pour la récidive des contraventions de la 5e classe est applicable.
Article R752-54
Outre l'amende prévue à l'article L. 752-23, le tribunal peut ordonner la confiscation totale ou partielle des meubles meublants garnissant la surface litigieuse et des marchandises qui sont offertes à la vente sur cette surface.
section 6 : Des contrats passés à l'occasion de la réalisation d'un projet autorisé.
Article D752-55
Lorsqu'une autorisation a été délivrée en application des articles L. 752-1 à L. 752-3, la ou les personnes physiques ou morales bénéficiaires de cette autorisation communiquent au préfet et au président de la chambre régionale des comptes, dans le ressort desquels le projet est réalisé dans les délais fixés à l'article L. 752-25, une liste récapitulative des contrats, d'un montant supérieur à 10 000 euros, conclus à l'occasion de la réalisation du projet autorisé. Cette liste mentionne, pour chacun de ces contrats : 1° L'identité des parties contractantes ; 2° L'objet du contrat ; 3° Les conditions financières de réalisation du contrat. Chacune des parties contractantes paraphe, pour ce qui la concerne, la liste établie par le ou les bénéficiaires de l'autorisation.
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Partie réglementaire
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce.
TITRE VI : Des marchés d'intérêt national et des manifestations commerciales.
Chapitre Ier : Des marchés d'intérêt national
Section 1 : Dispositions générales.
Article R761-1
Le conseil régional délibère sur la demande de classement ou de déclassement d'un marché d'intérêt national après avoir recueilli, dans les conditions prévues à l'article R. 761-3, l'avis de la ou des communes ou du ou des établissements publics de coopération intercommunale sur lesquels le marché est implanté.
L'autorité compétente en application de l'article L. 761-1 se prononce dans un délai de six mois à compter de la date de réception du dossier de demande.
Le contenu des dossiers types de demande ainsi que les modalités de leur transmission et de leur instruction sont définis par arrêté des ministres chargés du commerce et de l'agriculture.
Article D761-2
En application du premier alinéa de l'article L. 761-2, l'aménagement et la gestion du marché d'intérêt national de Paris-Rungis sont organisés par l'Etat.
Article R761-3
Les communes ou les établissements publics de coopération intercommunale sur le territoire desquels le marché est implanté déterminent eux-mêmes, ou délèguent à la région le pouvoir de
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déterminer les modalités d'aménagement et de gestion du marché. Chacune de ces missions peut être assurée en régie ou déléguée.
Article R761-4
Le tarif des redevances ou contributions de toute nature perçues par le gestionnaire est établi soit par le conseil d'administration, soit par l'organe délibérant qui en tient lieu.
Le gestionnaire porte ce tarif à la connaissance des usagers.
Article R761-5
Le gestionnaire du marché établit un rapport annuel dans les conditions prévues à l'article L. 1411-3 du code général des collectivités territoriales et le transmet aux communes et aux établissements publics de coopération intercommunale sur le territoire desquels est implanté le marché, au conseil régional et au préfet.
Le compte de résultat prévisionnel, prévu à l'article L. 761-3, est produit selon les mêmes modalités.
Lorsque le gestionnaire exerce d'autres activités que l'exploitation du marché d'intérêt national, il tient des comptes séparés relatifs, d'une part, à ladite exploitation, d'autre part, à ses autres activités.
Le ministre chargé de l'agriculture fixe par arrêté les conditions dans lesquelles les producteurs, les opérateurs du marché et, le cas échéant, les gestionnaires lui fournissent des informations économiques et statistiques relatives aux transactions sur les produits commercialisés sur le marché.
Article R761-6
Si l'exploitation financière du marché présente ou laisse prévoir un déséquilibre grave, le préfet chargé de la police du marché peut mettre le gestionnaire en demeure de prendre les mesures nécessaires au rétablissement de l'équilibre. Il en informe les collectivités publiques délégantes ou leurs groupements et, le cas échéant, les collectivités ayant garanti les emprunts contractés par le gestionnaire, ainsi que le conseil régional.
Lorsque, à l'expiration d'un délai de trois mois à compter de la date de réception de la mise en demeure, le gestionnaire n'a pas pris les mesures nécessaires au rétablissement de l'équilibre financier du marché, les ministres chargés du commerce et de l'agriculture peuvent faire usage des pouvoirs prévus au troisième alinéa de l'article L. 761-3.
Section 2 : Du périmètre de référence et des interdictions destinées à
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protéger les marchés d'intérêt national
Sous-section 1 : Du périmètre de référence.
Article R761-7
Le projet de création d'un périmètre de référence est arrêté par le préfet de région ou par le préfet de département lorsque toutes les communes du périmètre sont dans le même département. Il est ensuite soumis pour avis au gestionnaire, aux communes ou établissements publics de coopération intercommunale, aux chambres de commerce et d'industrie, aux chambres des métiers et de l'artisanat et aux chambres d'agriculture sur le territoire ou dans le ressort desquels il est situé, selon des modalités qui sont fixées par arrêté des ministres chargés du commerce et de l'agriculture.
Le décret mentionné au premier alinéa de l'article L. 761-4 fixe les limites et la durée du périmètre de référence. Cette durée est au maximum de trente ans.
Article R761-8
Le périmètre de référence peut être étendu au territoire de nouvelles communes selon les modalités prévues à l'article R. 761-7. Seuls sont alors recueillis les avis du gestionnaire et des communes ou établissements publics de coopération intercommunale faisant l'objet de l'extension, ainsi que des organismes consulaires dans le ressort desquels le territoire adjoint au périmètre de référence est situé.
Article R761-9
La réduction du périmètre de référence excluant certaines communes et la suppression anticipée de celui-ci sont prononcées par arrêté des ministres chargés du commerce et de l'agriculture.
Sous-section 2 : Des interdictions destinées à protéger les marchés d'intérêt national.
Article R761-10
Les interdictions prévues aux articles L. 761-4 à L. 761-6 s'appliquent aux ventes des produits matériellement présents à l'intérieur du périmètre de référence.
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Article R761-11
Une dérogation aux interdictions prévues aux articles L. 761-4 à L. 761-6 peut être accordée à titre individuel pour la création, l'extension ou le déplacement à l'intérieur du périmètre de référence d'un établissement, si cette création, cette extension ou ce déplacement est de nature à améliorer la productivité de la distribution ou à animer la concurrence. La dérogation peut prendre fin à une date antérieure à l'expiration du périmètre de référence.
Article R761-12
La demande de dérogation est accompagnée d'un dossier justificatif dont le contenu est fixé par arrêté des ministres chargés du commerce et de l'agriculture. Elle est adressée au préfet chargé de la police du marché, qui statue dans un délai de trois mois à compter de la réception du dossier complet de la demande, selon des modalités fixées par arrêté des ministres chargés du commerce et de l'agriculture. A l'expiration de ce délai, l'autorisation est réputée acquise. Une copie de la décision est adressée au gestionnaire du marché.
Pour les demandes relatives au Marché d'intérêt national de Paris-Rungis, le préfet de la région Ile-de-France statue après avis du comité consultatif du Marché d'intérêt national de Paris-Rungis, dont la composition et les règles de fonctionnement sont fixées par arrêté conjoint des ministres de tutelle.
Section 3 : De l'organisation générale des marchés d'intérêt national
Sous-section 1 : Dispositions communes à tous les marchés d'intérêt national.
Article R761-13
Le marché est clos.
Article R761-14
Les usagers du marché d'intérêt national ou de ses établissements annexes sont :
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1° Les vendeurs professionnels et courtiers ;
2° Les producteurs, leurs groupements et leurs organisations, qui ne peuvent vendre que leur propre production ;
3° Les acheteurs professionnels ;
4° Les autres usagers admis par le gestionnaire, notamment les exploitants et utilisateurs des services, aménagements, installations appartenant au marché ou établis dans son enceinte.
Article R761-15
Les usagers mentionnés au 1° de l'article R. 761-14 font la preuve de leur immatriculation en France au registre du commerce et des sociétés ou d'une inscription équivalente dans un pays étranger garantissant la licéité de leur activité.
Les usagers mentionnés au 2° de l'article R. 761-14 justifient par tout moyen de leur qualité auprès du gestionnaire du marché.
Les acheteurs sur le marché font la preuve soit de leur immatriculation en France au registre du commerce et des sociétés ou au répertoire des métiers, soit de la dispense d'immatriculation prévue à l'article L. 123-1-1 ou au V de l'article 19 de la loi n° 96-603 du 5 juillet 1996 relative au développement et à la promotion du commerce et de l'artisanat, soit d'une inscription équivalente dans un pays étranger garantissant la licéité de leur activité.
Le demandeur fournit une traduction en français des documents établis dans une langue étrangère.
Article R761-16
Les usagers du marché sont notamment tenus aux obligations suivantes :
1° Se conformer aux dispositions du règlement intérieur du marché ainsi qu'aux textes législatifs et réglementaires applicables à leurs activités ;
2° Ne pas nuire à l'image et à la notoriété du marché ;
3° Respecter leurs obligations contractuelles envers le gestionnaire ;
4° Acquitter les redevances et contributions de toute nature perçues par le gestionnaire.
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Article R761-17
Chaque marché dispose d'un règlement intérieur établi par le gestionnaire et approuvé par le préfet chargé de la police du marché.
Le règlement intérieur prévoit notamment :
1° Les heures de vente pour chaque produit et selon chaque pratique de vente ainsi que les heures d'accès aux installations et activités accessoires du marché ;
2° Les modalités d'accès des usagers au marché et celles selon lesquelles le gestionnaire peut autoriser d'autres personnes à y pénétrer ;
3° Les obligations des usagers, et notamment, pour les vendeurs, l'obligation de déclarer au gestionnaire du marché les tonnages reçus, le volume des ventes, les entrées en entrepôt, les mouvements de stocks et de tenir une comptabilité appropriée aux activités autorisées sur le marché ;
4° Les conditions d'utilisation des services, installations ou moyens communs mis à la disposition des usagers par le gestionnaire du marché ;
5° Les modalités de contrôle, par le gestionnaire, des installations et des opérations faites sur le marché ;
6° Les conditions dans lesquelles les autorisations et titres d'occupation sont attribués et, le cas échéant, retirés ou abrogés ;
7° Les conditions dans lesquelles le gestionnaire peut soit à la demande du titulaire du titre d'occupation, soit de sa propre initiative, dans l'intérêt de l'hygiène ou de la salubrité du marché ou du bon fonctionnement du service, modifier l'emplacement donnant lieu au titre d'occupation ; les frais afférents au transfert sont mis à la charge du titulaire, si le transfert est opéré à sa demande, et à la charge du gestionnaire, s'il est accompli à l'initiative de ce dernier.
Toute modification du règlement intérieur est approuvée par le préfet chargé de la police du marché.
Article R761-18
Un conseil de discipline est institué dans chaque marché. Sauf en cas d'avertissement, il est saisi par l'autorité compétente, en application de l'article R. 761-19, pour infliger la sanction envisagée.
Sa composition et son fonctionnement sont fixés par arrêté des ministres chargés du commerce et de
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l'agriculture.
Article R761-19
Les usagers peuvent faire l'objet de sanctions disciplinaires pour infraction aux règles qui régissent le marché. L'intéressé doit être mis à même de présenter ses observations, dans les conditions prévues à l'article 24 de la loi n° 2000-321 du 12 avril 2000 relative aux droits des citoyens dans leurs relations avec les administrations.
Ces sanctions sont :
1° L'avertissement ;
2° L'avertissement comportant une sanction pécuniaire d'un montant égal à l'amende pour contravention de la troisième classe ;
3° Le blâme comportant une sanction pécuniaire d'un montant égal à l'amende pour contravention de la quatrième classe ;
4° La suspension pour une durée qui ne peut dépasser trois mois ;
5° L'exclusion comportant, s'il y a lieu, retrait du contrat d'occupation.
L'avertissement et le blâme sont prononcés par le gestionnaire.
La suspension et l'exclusion sont prononcées par le préfet chargé de la police du marché, après avis du conseil de discipline.
Article R761-20
Un comité technique consultatif est institué auprès du gestionnaire du marché.
Il débat de toutes questions relatives au fonctionnement du marché.
Sa composition et son fonctionnement sont fixés par arrêté des ministres chargés du commerce et de l'agriculture.
Article R761-21
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En l'absence de périmètre de référence, l'extension ou la réduction de l'enceinte du marché ainsi que son transfert à l'intérieur d'un même département sont décidés par le gestionnaire.
Si un tel périmètre a été créé :
1° L'extension ou la réduction de l'enceinte du marché est approuvée par arrêté du préfet chargé de la police du marché ;
2° A la demande du gestionnaire, de la collectivité délégante ou, de sa propre initiative, pour des raisons d'ordre public, le préfet chargé de la police du marché peut décider du transfert de celui-ci à l'intérieur du périmètre de référence. Les frais de déménagement des vendeurs professionnels et courtiers sont pris en charge par l'autorité qui a demandé le transfert.
Sous-section 2 : Dispositions applicables aux marchés d'intérêt national installés sur le domaine public.
Article R761-22
L'autorisation de s'établir sur le marché d'intérêt national est donnée par son gestionnaire. Elle est précédée d'une publicité appropriée.
Il peut s'agir :
1° Soit d'une autorisation d'occupation exclusive d'un emplacement aménagé ou d'un terrain ;
2° Soit d'une autorisation d'occupation non exclusive d'un emplacement dans une installation aménagée : carreau, salle, surface couverte ou quai affectés à l'utilisation commune de certaines catégories ou de l'ensemble des vendeurs, conformément aux conditions spéciales définies par le règlement intérieur.
L'autorisation d'occupation impose au bénéficiaire l'obligation d'exploiter sous sa responsabilité personnelle.
La décision d'autorisation d'occupation est notifiée à l'intéressé par le gestionnaire. Elle fixe la nature et les caractéristiques des installations autorisées et des activités que le titulaire s'engage à y exercer, la date de son entrée en vigueur et sa durée, qui ne peut excéder la date de mise à disposition du terrain par la personne publique propriétaire.
Article R761-23
L'attribution d'une autorisation d'occupation exclusive peut être subordonnée à l'acquittement, par le
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demandeur, d'un droit de première accession fixé dans les conditions prévues à l'article L. 761-3.
Sans préjudice de l'application de l'article R. 761-24, le titulaire de cette autorisation ne peut disposer de tout ou partie de son emplacement au profit d'un tiers.
Le gestionnaire peut, sur demande individuelle, autoriser le titulaire d'une autorisation d'occupation exclusive à opérer, dans son emplacement, des aménagements conformes à la destination de celui-ci. Il ne peut refuser cette autorisation si les services généraux ou les moyens communs du marché ne satisfont pas le besoin invoqué.
Article R761-24
Le titulaire d'une autorisation d'occupation exclusive peut, lorsqu'il exerce son activité sur le marché depuis trois ans au moins, présenter au gestionnaire un successeur qui sera subrogé dans ses droits et ses obligations. Lorsque le titulaire vient à décéder, le même droit de présentation appartient à ses ayants droit qui peuvent en faire usage au bénéfice de l'un d'eux.
Le gestionnaire ne peut refuser à la personne présentée comme successeur l'autorisation de s'établir à titre exclusif dans un emplacement du marché si elle remplit les conditions prévues à l'article R. 761-15 et si elle exerce les mêmes activités que son prédécesseur.
Sous-section 3 : Dispositions applicables aux marchés d'intérêt national installés sur le domaine privé d'une collectivité territoriale et à ceux installés sur des immeubles appartenant à des personnes privées.
Article R761-25
Les occupants des marchés d'intérêt national installés sur une dépendance du domaine privé d'une collectivité territoriale ne peuvent être que des preneurs à bail.
En cas de gestion déléguée du marché d'intérêt national, la ou les collectivités délégantes habilitent, dans le contrat de délégation de service public, le gestionnaire à conclure des baux avec les occupants du marché.
L'occupant, quelle que soit la nature de son bail, ne peut exercer sous forme de location-gérance, ni sous-louer son emplacement à un tiers.
Article R761-26
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Lorsqu'un marché d'intérêt national est installé pour tout ou partie sur des immeubles privés, l'organisme gestionnaire est soit propriétaire desdits immeubles, soit preneur à bail pendant toute la durée de sa mission d'exploitation du marché.
Chapitre II : Des manifestations commerciales.
Article R762-1
La demande d'enregistrement d'un parc d'exposition est adressée par son exploitant, par lettre recommandée avec demande d'avis de réception, ou remise au préfet du département où se trouvent ses installations. Si l'emprise du parc d'exposition et de ses dépendances s'étend sur plusieurs départements, l'enregistrement est réalisé auprès du département où est situé l'accès principal de ce parc d'exposition. Une demande est faite pour chaque parc qui constitue un ensemble clos sans accès direct et privatif vers un autre parc d'exposition.
Le dossier de demande d'enregistrement comporte une déclaration et des pièces justificatives définies par un arrêté du ministre chargé du commerce.
Article R762-2
Si le dossier de demande d'enregistrement est complet, le préfet adresse à l'exploitant du parc d'exposition, par voie postale, un récépissé d'enregistrement de chaque parc dans le délai d'un mois à compter de la réception de ce dossier. Si le dossier est incomplet, le préfet notifie à l'intéressé la liste des pièces manquantes dans un délai de quinze jours à compter de sa réception. A défaut de production des éléments complémentaires manquants, la demande d'enregistrement ne peut faire l'objet d'un récépissé d'enregistrement.
Article R762-3
Tout changement dans les éléments figurant dans la demande d'enregistrement initiale d'un parc d'exposition fait l'objet d'une déclaration modificative au préfet dans des conditions identiques à la procédure initiale.
Article R762-4
Les manifestations commerciales devant faire l'objet d'une déclaration au titre du programme annuel par un parc d'exposition sont :
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1° Les salons professionnels tels que définis par l'article L. 762-2 ;
2° Les manifestations commerciales, usuellement dénommées " salons ", ouvertes au public et dans lesquelles un ensemble de personnes physiques ou morales relevant d'une branche professionnelle ou d'un ensemble de branches professionnelles expose d'une façon collective et temporaire des biens ou offre des services relevant d'une liste limitative de produits ou services déterminés par l'organisateur, qui peuvent faire l'objet d'une vente directe avec enlèvement de la marchandise ou exécution du contrat de services ;
3° Les manifestations commerciales, usuellement dénommées " foires ", dans lesquelles un ensemble de personnes physiques ou morales expose d'une façon collective et temporaire des biens ou offre des services qui peuvent faire l'objet d'une vente directe avec enlèvement de la marchandise ou exécution du contrat de services.
Les manifestations mentionnées au 3° du III de l'article L. 310-2 n'ont pas à faire l'objet d'une déclaration au titre du programme annuel.
Article R762-5
L'exploitant d'un parc d'exposition enregistré adresse, pour chaque année civile, la déclaration du programme annuel des manifestations commerciales telles que définies à l'article R. 762-4 se tenant dans son parc, au préfet du département d'implantation de ce parc, avant le 1er octobre de l'année précédant la tenue des manifestations commerciales inscrites dans ce programme.
L'exploitant du parc déclare les principales caractéristiques de chaque manifestation commerciale, qu'il recueille auprès de son organisateur. La liste de ces caractéristiques est définie par un arrêté du ministre chargé du commerce. Lorsque la manifestation s'est tenue précédemment, ses caractéristiques chiffrées sont certifiées dans des conditions fixées par arrêté du ministre chargé du commerce.
La déclaration du programme annuel est écrite, déposée ou transmise par l'exploitant du parc d'exposition par tout moyen reconnu comme faisant preuve. Elle peut être effectuée par voie électronique dans des conditions fixées par arrêté du ministre chargé du commerce.
Elle donne lieu à la délivrance d'un accusé de réception, par voie postale ou électronique. Dans ce dernier cas, le préfet veille à ce que la transmission soit assurée de manière sécurisée, conformément à l'article 1316-1 du code civil. L'exploitant du parc adresse par voie postale ou électronique une copie de ce récépissé aux organisateurs des manifestations faisant l'objet de la déclaration annuelle.
Article R762-6
Si le dossier de déclaration de programme annuel est complet, le préfet adresse, par voie postale, un récépissé de déclaration à l'exploitant du parc d'exposition dans le délai d'un mois à compter de la
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réception de ce dossier. Si le dossier est incomplet, le préfet notifie à l'intéressé la liste des éléments manquants dans un délai de quinze jours à compter de la réception du dossier. A défaut de production des éléments complémentaires manquants, la déclaration ne peut faire l'objet d'un récépissé de déclaration que pour les manifestations dont le dossier est complet.
Article R762-7
Toute modification du programme annuel ou des principales caractéristiques des manifestations qui y figurent fait l'objet d'une déclaration modificative immédiate au préfet dans des conditions identiques à la procédure initiale de déclaration du programme annuel.
Article R762-8
La première déclaration de programme annuel peut être effectuée en même temps que la demande d'enregistrement du parc d'exposition.
Article R762-9
En cas d'absence de dépôt de la déclaration complète dans les délais prévus à l'article R. 762-5, les manifestations commerciales qui se tiennent dans le parc sont assujetties, suivant le cas, au régime de déclaration prévu aux articles R. 762-10 à R. 762-12, ou aux demandes d'autorisation prévues au I de l'article L. 310-2. Dans ce cas, l'exploitant du parc d'exposition informe par voie postale avant le 1er novembre de l'année précédant la tenue des manifestations commerciales les organisateurs de celles pour lesquelles il n'a pas obtenu de récépissé de déclaration.
Article R762-10
L'organisateur d'un salon professionnel tel que défini à l'article L. 762-2 qui ne se tient pas dans un parc d'exposition enregistré adresse une déclaration préalable par lettre recommandée avec demande d'avis de réception, ou la remet au préfet du département où se tient la manifestation deux mois au moins avant le début de celle-ci.
Le déclarant fournit les principales caractéristiques de la manifestation. La liste de ces caractéristiques est définie par un arrêté du ministre chargé du commerce. Lorsque la manifestation s'est tenue précédemment, ses caractéristiques chiffrées sont certifiées dans des conditions fixées par arrêté du ministre chargé du commerce.
Le préfet délivre un récépissé de déclaration dans un délai maximum de quinze jours à compter de la réception du dossier complet de cette déclaration. Si la déclaration est incomplète, il notifie à
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l'intéressé la liste des éléments manquants dans un délai de quinze jours à compter de sa réception.
A défaut de production des éléments complémentaires manquants dans les dix jours à compter de cette notification, la déclaration ne peut faire l'objet d'un récépissé de déclaration.
Article R762-11
Lorsqu'un des éléments de la déclaration initiale est modifié avant ou pendant la tenue de la manifestation, déclaration en est faite immédiatement au préfet du département dans les conditions fixées par arrêté du ministre chargé du commerce.
Article R762-12
Les déclarations initiales et modificatives peuvent être effectuées par voie électronique dans des conditions fixées par arrêté du ministre chargé du commerce.
Article D762-13
La valeur maximale des marchandises pouvant être proposées à la vente sur place, pour l'usage personnel de l'acquéreur, à l'occasion d'un salon professionnel tel que défini par l'article L. 762-2, est fixée à 80 Euros toutes taxes comprises.
Article R762-14
Les manifestations commerciales déclarées dans les conditions prévues aux articles R. 762-5 à R. 762-12 font l'objet d'une publicité, le cas échéant par voie électronique, dans des conditions fixées par arrêté du ministre chargé du commerce.
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Partie réglementaire
LIVRE VIII : De quelques professions réglementées.
TITRE Ier : Des administrateurs judiciaires, des mandataires judiciaires et des experts en diagnostic d'entreprise.
Chapitre Ier : Des administrateurs judiciaires
Section 1 : De l'accès à la profession
Sous-section 1 : De la Commission nationale d'inscription et de discipline des administrateurs judiciaires.
Article R811-1
La liste des administrateurs judiciaires est établie par la commission nationale instituée par l'article L. 811-2.
Article R811-2
Le magistrat du parquet, commissaire du gouvernement auprès de la commission nationale d'inscription et de discipline des administrateurs judiciaires, et son suppléant sont désignés par le garde des sceaux, ministre de la justice.
Le mandat du président et des membres de la commission prend effet à la date de la première réunion qui suit leur désignation. Pour cette première réunion, la commission se réunit sur convocation de son secrétaire.
Lorsqu'un membre est définitivement empêché en cours de mandat, il est procédé à son remplacement. Les fonctions du nouveau membre expirent à la date à laquelle auraient cessé celles du membre qu'il remplace.
Le secrétariat de la commission est assuré par un fonctionnaire du ministère de la justice.
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Article R811-3
L'élection des administrateurs judiciaires et de leurs suppléants, membres de la commission nationale, est organisée par le Conseil national des administrateurs judiciaires et des mandataires judiciaires. Elle a lieu au scrutin majoritaire plurinominal à un tour.
Ne peuvent prendre part aux opérations électorales les administrateurs judiciaires qui, depuis la date à laquelle a été arrêtée la liste, ont fait l'objet d'une suspension provisoire, d'une interdiction temporaire, d'une radiation ou d'un retrait de la liste.
L'électeur vote pour trois candidats titulaires et leurs suppléants. Il barre sur le bulletin qui lui a été adressé le nom de ceux qu'il ne retient pas. Les bulletins sont valables même s'ils portent moins de noms qu'il y a de membres à élire. Lorsque les bulletins comportent plus de noms qu'il y a de membres à élire, seuls sont comptés les trois premiers noms inscrits, dans l'ordre de préférence indiqué par l'électeur. Tout bulletin surchargé est nul.
Sont élus les trois candidats titulaires et leurs suppléants qui ont obtenu le plus grand nombre de voix. En cas d'égalité des voix, le plus âgé des candidats titulaires l'emporte.
Article R811-4
Tout administrateur judiciaire peut déférer les élections à la cour d'appel de Paris dans le délai de cinq jours à compter de la proclamation des résultats. La réclamation est adressée par lettre recommandée avec demande d'avis de réception au greffier en chef de la cour d'appel, qui en avise le commissaire du gouvernement.
Le recours peut aussi être exercé par le commissaire du gouvernement.
Article R811-5
En cas de vacance du siège d'un titulaire et de son suppléant, il est pourvu à leur remplacement par le premier candidat et son suppléant non élus. S'il n'y a plus de candidat non élu, il est procédé à une élection au scrutin majoritaire à un tour selon les modalités prévues à l'article R. 811-3.
Article R811-6
Les autres modalités de l'élection des administrateurs judiciaires à la commission nationale et notamment celles du vote par correspondance sont déterminées par le bureau du Conseil national des administrateurs judiciaires et des mandataires judiciaires selon des règles soumises à
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l'approbation du garde des sceaux, ministre de la justice.
Sous-section 2 : Des conditions d'inscription sur la liste des administrateurs judiciaires.
Article R811-7
Ne peuvent être admises à se présenter à l'examen d'accès au stage professionnel prévu à l'article L. 811-5 que les personnes titulaires de l'un des titres ou diplômes ci-après :
1° Maîtrise en droit ;
2° Maîtrise en sciences économiques ou maîtrise de sciences de gestion ;
3° Diplôme revêtu du visa du ministre chargé de l'éducation nationale, délivré par un établissement d'enseignement supérieur de commerce et de gestion reconnu par l'Etat et autorisé à délivrer un tel diplôme ;
4° Autres titres et diplômes sanctionnant un deuxième cycle d'enseignement supérieur ou d'un niveau équivalent et figurant sur une liste fixée par arrêté conjoint du garde des sceaux, ministre de la justice, et du ministre chargé de l'éducation nationale ;
5° Certificat d'aptitude aux fonctions de commissaire aux comptes ou diplôme d'expertise comptable ;
6° Diplôme d'études supérieures comptables et financières régi par le décret n° 88-80 du 22 janvier 1988 relatif au diplôme préparatoire aux études comptables et financières, au diplôme d'études comptables et financières, au diplôme d'études supérieures comptables et financières et abrogeant le décret n° 81-537 du 12 mai 1981 relatif au diplôme d'études comptables supérieures ;
7° Diplôme d'études approfondies en droit ou en gestion des entreprises ;
8° Diplôme d'études supérieures spécialisées en droit ou diplôme d'études supérieures spécialisées en administration des entreprises (ancien certificat d'aptitude à l'administration des entreprises).
Article R811-8
Les titulaires du diplôme d'études comptables supérieures régi antérieurement par le décret n° 81-537 du 12 mai 1981 relatif au diplôme d'études comptables supérieures sont considérés pour l'application du présent chapitre comme titulaires du diplôme d'études supérieures comptables et
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financières.
Article R811-9
L'examen d'accès au stage est organisé par le Conseil national des administrateurs judiciaires et des mandataires judiciaires selon un programme et des modalités fixés par arrêté du garde des sceaux, ministre de la justice.
Nul ne peut se présenter plus de trois fois à l'examen.
Article R811-10
Le jury de l'examen d'accès au stage est composé ainsi qu'il suit :
1° Un magistrat de l'ordre judiciaire, président ;
2° Un magistrat de l'ordre judiciaire ;
3° Un professeur ou un maître de conférences de droit ;
4° Un professeur ou un maître de conférences de sciences économiques ou de gestion ;
5° Deux administrateurs judiciaires.
En cas de partage égal des voix, celle du président est prépondérante.
Article R811-11
Les membres du jury sont nommés par arrêté du garde des sceaux, ministre de la justice, après avis, en ce qui concerne les administrateurs judiciaires, du Conseil national des administrateurs judiciaires et des mandataires judiciaires.
Des suppléants sont nommés en nombre égal dans les mêmes conditions.
Le président et les membres du jury sont nommés pour une période de deux ans, renouvelable une fois.
Article R811-12
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Lorsqu'un membre est définitivement empêché en cours de mandat, il est remplacé par une personne appartenant à la même catégorie pour la durée du mandat restant à courir.
Article R811-13
En application des dispositions de l'article L. 811-5, sont dispensés de l'examen d'accès au stage professionnel :
1° Les mandataires judiciaires ayant exercé leur profession pendant trois ans au moins ;
2° Les avocats, les notaires, les huissiers de justice, les greffiers des tribunaux de commerce, les experts-comptables et les commissaires aux comptes, ayant exercé leur profession pendant cinq ans au moins ;
3° Les juristes d'entreprise titulaires de l'un des titres ou diplômes mentionnés à l'article R. 811-7, justifiant de quinze ans au moins de pratique professionnelle.
Article R811-14
Le secrétaire de la commission tient un registre sur lequel est inscrit le nom du stagiaire, le nom du ou des maîtres de stage, les dates de commencement et de fin de stage.
Toute inscription sur le registre de stage est portée à la connaissance du Conseil national dans le délai de huit jours.
Article R811-15
La durée du stage est de trois ans au moins et de six ans au plus.
Le stage consiste dans la pratique d'activités permettant d'acquérir une expérience suffisante dans le domaine professionnel des administrateurs judiciaires, en qualité de collaborateur d'un administrateur judiciaire et sous son contrôle direct.
Le stage peut être accompli pour une période n'excédant pas le tiers de sa durée auprès d'une personne exerçant une autre profession juridique réglementée ou auprès d'un expert-comptable ou d'un commissaire aux comptes dans les conditions prévues à l'article R. 811-16, ou dans les services juridiques ou financiers d'un établissement de crédit régi par le code monétaire et financier.
Article R811-16
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Il est passé entre le candidat stagiaire et le maître de stage une convention qui précise la durée du stage et la nature des tâches demandées au stagiaire, ainsi que les modalités de sa rémunération. Une copie en est adressée par le stagiaire au secrétariat de la commission.
Article R811-17
Le stage correspond à la durée normale du travail telle qu'elle résulte des règlements, conventions collectives, accords ou usages en vigueur pour la catégorie professionnelle considérée ; il est rémunéré conformément à ces mêmes règlements, conventions collectives, accords ou usages. Il ne doit pas avoir été interrompu pendant plus d'un an sauf motif légitime.
La commission peut prendre en compte pour la moitié de la durée du stage les stages ou services antérieurs effectués en qualité de collaborateur d'une personne physique ou morale exerçant l'une des professions ou activités mentionnées à l'article R. 811-15. Pour être pris en compte, ces stages ou services antérieurs doivent être d'au moins un an s'ils ont été effectués auprès d'un administrateur judiciaire ou d'un mandataire judiciaire, et d'au moins deux ans s'ils ont été effectués auprès d'une autre personne mentionnée à l'article R. 811-15.
Article R811-18
Le stage qui a été régulièrement accompli donne lieu à la délivrance d'une attestation établie par le maître de stage ; ce document précise les appréciations de ce dernier, la nature des tâches et la qualité du travail effectués par le stagiaire ; il est communiqué au stagiaire qui certifie en avoir pris connaissance et peut apporter ses observations manuscrites. Il est ensuite transmis par le maître de stage au secrétaire de la commission. Le commissaire du gouvernement, le cas échéant après enquête, délivre le certificat de fin de stage. Le refus de délivrance du certificat, qui est motivé, est notifié à l'intéressé par lettre recommandée avec demande d'avis de réception. L'intéressé peut le déférer dans les mêmes formes à la commission dans le délai d'un mois à compter de la notification qui lui en a été faite. La commission statue alors dans les conditions prévues aux articles R. 811-33 à R. 811-35.
Article R811-19
Le jury de l'examen d'aptitude prévu à l'article L. 811-5 est composé ainsi qu'il suit :
1° Un magistrat de l'ordre judiciaire, président ;
2° Un magistrat de l'ordre judiciaire ;
3° Un membre d'une juridiction commerciale du premier degré ;
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4° Une personne qualifiée en matière économique et sociale ;
5° Deux administrateurs judiciaires.
En cas de partage égal des voix, celle du président est prépondérante.
Article R811-20
Les membres du jury sont nommés par arrêté du garde des sceaux, ministre de la justice, après avis, en ce qui concerne les administrateurs judiciaires, du Conseil national des administrateurs judiciaires et des mandataires judiciaires.
Des suppléants sont nommés en nombre égal dans les mêmes conditions.
Le président et les membres du jury sont nommés pour une période de deux ans, renouvelable une fois.
Article R811-21
Lorsqu'un membre est définitivement empêché en cours de mandat, il est remplacé par une personne appartenant à la même catégorie pour la durée du mandat restant à courir.
Article R811-22
L'examen d'aptitude est organisé par le Conseil national des administrateurs judiciaires et des mandataires judiciaires. Ne peuvent être admises à s'y présenter que les personnes titulaires du certificat de fin de stage délivré dans les conditions fixées à l'article R. 811-18.
Article R811-23
Le programme et les modalités de l'examen, comprenant des épreuves à caractère théorique et pratique et un rapport de stage, sont fixés par arrêté du garde des sceaux, ministre de la justice.
L'examen peut comprendre des épreuves à option permettant, le cas échéant, d'obtenir un certificat de spécialisation. La liste des certificats de spécialisation est fixée par arrêté du garde des sceaux, ministre de la justice.
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Article R811-24
En cas de premier échec à l'examen d'aptitude, le candidat peut poursuivre son stage. Le certificat de fin de stage initial demeure valide. Après un second échec, le candidat ne peut plus se présenter à l'examen d'aptitude.
Article R811-25
Les demandes de dispense d'une partie du stage fondées sur les dispositions du huitième alinéa de l'article L. 811-5 sont examinées par la commission, qui statue dans les conditions prévues aux articles R. 811-33 à R. 811-35.
Article R811-26
En application des dispositions de l'article L. 811-5, les avocats, les notaires, les huissiers de justice, les greffiers des tribunaux de commerce, ayant exercé leur profession pendant cinq ans au moins, ainsi que les juristes d'entreprise, titulaires de l'un des titres ou diplômes mentionnés à l'article R. 811-7 et justifiant de quinze ans au moins de pratique professionnelle, peuvent être dispensés par la commission d'une partie du stage professionnel et de tout ou partie des épreuves à caractère juridique de l'examen d'aptitude, à l'exception de celle portant sur le statut et la déontologie de la profession d'administrateur judiciaire.
Les experts-comptables et les commissaires aux comptes ayant exercé leur profession pendant cinq ans au moins peuvent être dispensés par la commission d'une partie du stage professionnel et de tout ou partie des épreuves à caractère économique, comptable ou de gestion.
Les mandataires judiciaires peuvent être dispensés par la commission d'une partie du stage professionnel et sont dispensés de l'examen d'aptitude. Ils peuvent être inscrits sur la liste des administrateurs judiciaires sous condition suspensive d'avoir été retirés de la liste des mandataires judiciaires dans les conditions prévues aux articles R. 811-36 et R. 812-20.
La commission statue dans les conditions prévues aux articles R. 811-33 à R. 811-35.
Article R811-27
Peuvent être inscrites sur la liste des administrateurs judiciaires, en application du dernier alinéa de l'article L. 811-5, les personnes qui ont suivi avec succès un cycle d'études post-secondaires d'une durée minimale de trois ans ou d'une durée équivalente à temps partiel dans une université ou un établissement d'enseignement supérieur ou dans un autre établissement d'un niveau équivalent de formation, et, le cas échéant, la formation professionnelle requise en plus de ce cycle d'études et qui
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justifient :
1° De diplômes, certificats ou autres titres permettant l'exercice de la profession dans un Etat membre de la Communauté européenne ou dans un Etat partie à l'accord sur l'Espace économique européen délivrés :
a) Soit par l'autorité compétente de cet Etat et sanctionnant une formation acquise de façon prépondérante dans l'un de ces Etats ;
b) Soit par un pays tiers, à condition que soit fournie une attestation émanant de l'autorité compétente de l'Etat membre ou partie qui a reconnu les diplômes, certificats ou autres titres certifiant que leur titulaire a une expérience professionnelle de trois ans au moins dans cet Etat ;
2° Ou de l'exercice à plein temps de la profession pendant deux ans au moins au cours des dix années précédentes dans un Etat membre ou partie qui ne réglemente pas l'accès ou l'exercice de cette profession, à condition que cet exercice soit attesté par l'autorité compétente de cet Etat. Toutefois, la condition d'une expérience professionnelle de deux ans n'est pas exigée lorsque le ou les titres détenus par le demandeur sanctionnent une formation réglementée directement orientée vers l'exercice de la profession.
Article R811-28
Sauf si les connaissances qu'elles ont acquises au cours de leur expérience professionnelle sont de nature à rendre cette vérification inutile, les personnes mentionnées à l'article R. 811-27 subissent devant le jury prévu à l'article R. 811-10 un examen de contrôle des connaissances, organisé par le Conseil national, dont le programme et les modalités sont fixés par arrêté du garde des sceaux, ministre de la justice :
1° Lorsque leur formation porte sur des matières substantiellement différentes de celles qui figurent au programme des titres et diplômes mentionnés aux articles R. 811-7 et R. 811-8 et de l'examen de stage professionnel mentionné au R. 811-9 ;
2° Ou lorsqu'une ou plusieurs des activités professionnelles dont l'exercice est subordonné à la possession de ces diplômes et de cet examen ne sont pas réglementées dans l'Etat membre d'origine ou de provenance ou sont réglementées de manière différente et que cette différence est caractérisée par une formation spécifique requise dans l'Etat membre d'accueil portant sur des matières substantiellement différentes de celles couvertes par le diplôme dont le demandeur fait état.
Sous-section 3 : De la procédure d'inscription sur la liste des administrateurs judiciaires et de la révision de la liste.
Article R811-29
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A la réception du dossier complet d'une personne mentionnée à l'article R. 811-27, un récépissé lui est délivré. La commission nationale se prononce par décision motivée dans un délai de quatre mois à compter de la délivrance du récépissé.
La décision par laquelle la commission nationale arrête la liste des candidats soumis à l'examen de contrôle des connaissances précise, le cas échéant, les matières sur lesquelles chacun des candidats est interrogé compte tenu de sa formation initiale et de son expérience professionnelle.
La commission statue dans les conditions prévues aux articles R. 811-33 à R. 811-35.
Nul ne peut se présenter plus de trois fois à l'examen.
Article R811-30
La commission nationale inscrit les sociétés civiles professionnelles et les sociétés d'exercice libéral d'administrateurs judiciaires prévues par l'article L. 811-7 sur la liste ainsi que chacun des associés. Le nom de chacun de ceux-ci est suivi de la mention de la raison ou dénomination sociale.
L'appartenance aux autres groupements ou sociétés prévus par l'article L. 811-7 est immédiatement portée à la connaissance de la commission.
Article R811-31
La demande d'inscription sur la liste des administrateurs judiciaires est adressée par lettre recommandée avec demande d'avis de réception au secrétaire de la commission. Elle est accompagnée des pièces justificatives suivantes :
1° Les documents établissant l'état civil et la nationalité du candidat ;
2° Une copie des titres et diplômes dont il entend se prévaloir ou à défaut une attestation des autorités habilitées à les délivrer ;
3° Le cas échéant, l'attestation de réussite à l'examen d'aptitude.
Le candidat indique en outre ses activités professionnelles antérieures et le lieu où il envisage d'établir son domicile professionnel.
Le commissaire du Gouvernement demande le bulletin n° 2 du casier judiciaire de l'intéressé et fait diligenter une enquête de moralité.
Lorsque le dossier est complet, le président de la commission désigne un rapporteur parmi les
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membres titulaires ou suppléants de celle-ci.
Article R811-32
La demande d'inscription d'une société civile professionnelle ou d'une société d'exercice libéral est accompagnée des pièces mentionnées à l'article R. 814-60.
Article R811-33
Avant de statuer, la commission demande l'avis du Conseil national par lettre recommandée avec demande d'avis de réception. Le conseil dispose d'un mois pour donner cet avis.
La commission prend, après avoir entendu le commissaire du Gouvernement, une décision d'inscription ou de refus d'inscription ; elle peut aussi ordonner un complément d'information. Les décisions de refus doivent être motivées.
Article R811-34
La commission ne peut statuer, en matière d'inscription, qu'en présence du président et de cinq au moins de ses membres. Lorsque l'un des membres ou le président de la commission a autorité sur le demandeur ou a des liens de parenté ou d'alliance avec lui jusqu'au quatrième degré inclusivement, il s'abstient de siéger. Aucun refus d'inscription ne peut être prononcé par la commission sans que l'intéressé ait été entendu ou appelé quinze jours au moins à l'avance par lettre recommandée avec demande d'avis de réception.
Article R811-35
La décision de la commission est notifiée à l'intéressé, au président du Conseil national, au garde des sceaux, ministre de la justice, et au commissaire du Gouvernement par lettre recommandée avec demande d'avis de réception. Lorsqu'une décision d'inscription est prise, une copie en est adressée au président de la caisse de garantie.
La lettre de notification fait mention, à peine de nullité, du délai de recours et des modalités suivant lesquelles ce recours peut être exercé.
Article R811-36
La commission procède à la mise à jour de la liste des administrateurs judiciaires au moins une fois par an. Elle tient compte des transferts de domicile professionnel, des changements d'adresse des
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locaux professionnels et de la création ou de la suppression des bureaux annexes. Elle supprime le nom de ceux qui sont décédés, ont démissionné, ont fait l'objet d'une mesure de radiation ou de retrait. Les modifications sont adressées par la commission au procureur général près la cour d'appel dans le ressort de laquelle l'administrateur judiciaire concerné a son domicile professionnel, ainsi qu'à celui ou à ceux près les cours d'appel dans le ressort desquelles l'administrateur judiciaire a un ou plusieurs bureaux annexes.
L'administrateur judiciaire dont le nom a été retiré de la liste peut solliciter à nouveau son inscription lorsque la cause du retrait a disparu.
La commission ne supprime de la liste le nom de l'administrateur judiciaire qui a démissionné qu'après avoir vérifié que ses dossiers ont été répartis entre les autres administrateurs judiciaires et ont donné lieu à une reddition des comptes et que l'administrateur judiciaire démissionnaire ne détient plus de fonds de tiers.
Article R811-37
La demande de retrait de la liste des administrateurs judiciaires est adressée par lettre recommandée avec demande d'avis de réception au secrétaire de la commission. Elle est accompagnée :
1° D'une attestation du commissaire aux comptes qui assure le contrôle de la comptabilité spéciale de l'administrateur judiciaire certifiant que l'ensemble des comptes de tiers ouverts au nom du professionnel à la Caisse des dépôts et consignations présente un solde nul en comptabilité et que les états de rapprochement bancaire ne font apparaître aucun chèque ou autre moyen de paiement en circulation ;
2° D'une attestation de la Caisse des dépôts et consignations certifiant que l'ensemble des comptes de tiers en numéraire, effets, valeurs et titres ouverts au nom du professionnel sont clôturés.
Article R811-38
Si l'administrateur judiciaire a été autorisé à poursuivre le traitement d'un ou de plusieurs dossiers, la commission s'assure qu'une décision motivée a été rendue pour chacun d'entre eux et que l'intéressé respecte et est en mesure de respecter les dispositions des articles L. 811-10, L. 811-16 et L. 814-5.
Article R811-39
Chaque année, et au plus tard le 31 décembre, les administrateurs judiciaires retirés de la liste et autorisés à poursuivre le traitement d'un ou plusieurs dossiers en font la déclaration auprès du procureur de la République du lieu de leur domicile, du Conseil national des administrateurs judiciaires et des mandataires judiciaires, de la Caisse de garantie, du magistrat inspecteur régional
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compétent pour le ressort de la cour d'appel du lieu de leur domicile ainsi que du magistrat chargé de coordonner l'activité des magistrats inspecteurs régionaux.
Section 2 : De la surveillance, de l'inspection et de la discipline
Sous-section 1 : De la surveillance et de l'inspection.
Article R811-40
Un magistrat désigné par le garde des sceaux, ministre de la justice, parmi les magistrats des parquets généraux est chargé, pour le ressort d'une ou plusieurs cours d'appel, de l'inspection des administrateurs judiciaires, y compris de ceux qui sont désignés dans les conditions du deuxième alinéa de l'article L. 811-2. Un magistrat suppléant est désigné dans les mêmes conditions.
Un magistrat désigné par le ministre et placé auprès du directeur des affaires civiles et du sceau coordonne l'activité des magistrats inspecteurs régionaux.
Article R811-41
Les magistrats inspecteurs régionaux effectuent des inspections à la demande du commissaire du Gouvernement compétent ou du magistrat coordonnateur. Ils peuvent également en effectuer d'office. Le magistrat coordonnateur peut, d'office, effectuer toute inspection.
Le magistrat qui procède à une inspection peut demander à un ou plusieurs administrateurs judiciaires de l'assister pendant l'inspection. Il peut aussi solliciter le concours des inspections générales de l'Etat.
Le professionnel inspecté peut demander à un confrère de son choix de l'assister lors de l'inspection. Il peut également demander au commissaire aux comptes ayant procédé à la vérification de sa comptabilité en application de l'article R. 814-29 ou à un expert-comptable de son choix d'assister à l'inspection.
Article R811-42
Pour l'exercice de leurs attributions, ces magistrats disposent d'un pouvoir général d'investigation, de vérification et de contrôle.
Ils peuvent se faire assister pour procéder aux inspections de toutes personnes inscrites sur la liste des commissaires aux comptes établie en application de l'article L. 822-1 ainsi que de tout expert ou
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toute personne de leur choix. Les frais occasionnés par cette assistance sont avancés par le Conseil national. Ils sont recouvrés sur le professionnel inspecté si celui-ci est l'objet d'une sanction disciplinaire.
L'audition d'un administrateur judiciaire par un magistrat inspecteur donne lieu à l'établissement d'un procès-verbal signé par l'intéressé et le magistrat.
Sous-section 2 : De la discipline
Paragraphe 1 : De la procédure disciplinaire.
Article R811-43
La commission ne peut statuer en matière disciplinaire qu'en présence du président et de sept au moins de ses membres.
Article R811-44
Le président du Conseil national est tenu de signaler au commissaire du Gouvernement les faits dont il a connaissance et qui pourraient justifier une poursuite disciplinaire.
Article R811-45
L'administrateur judiciaire poursuivi disciplinairement est cité à comparaître par lettre recommandée avec demande d'avis de réception quinze jours au moins à l'avance. La citation précise, à peine de nullité, les faits qui la motivent.
Article R811-46
L'administrateur judiciaire cité à comparaître devant la commission peut prendre connaissance de son dossier auprès du secrétariat. Il comparaît en personne ; il peut se faire assister par un avocat de son choix et, s'il le désire, par un administrateur judiciaire inscrit.
Article R811-47
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La commission peut entendre l'auteur de la plainte. Elle peut faire recueillir tous renseignements et faire procéder à toutes auditions.
Article R811-48
Le président de la commission désigne pour chaque affaire en qualité de rapporteur l'un de ses membres. Les débats devant la commission sont publics. Toutefois, celle-ci peut décider que les débats ne seront pas publics si l'administrateur judiciaire poursuivi en fait expressément la demande ou s'il doit résulter de leur publicité une atteinte à l'ordre public, à un secret protégé par la loi ou au secret des affaires. Il en est fait mention dans la décision.
La commission statue publiquement après avoir entendu le rapporteur, le commissaire du Gouvernement et, s'il y a lieu, l'autorité qui a engagé l'action disciplinaire ainsi que l'administrateur judiciaire poursuivi, son conseil et, le cas échéant, le professionnel qui l'assiste.
Le commissaire du Gouvernement n'assiste pas au délibéré.
Le président du Conseil national peut présenter ses observations, le cas échéant, par l'intermédiaire d'un membre du conseil.
Article R811-49
Le secrétaire de la commission notifie par lettre recommandée, avec demande d'avis de réception, la décision à l'intéressé, au garde des sceaux, ministre de la justice, au président du Conseil national, à la Caisse de garantie, au commissaire du Gouvernement et au procureur général lorsqu'il a engagé l'action disciplinaire.
La notification indique le délai et les modalités du recours ouvert à l'encontre de la décision.
La décision est également portée à la connaissance du procureur général près la cour d'appel dans le ressort de laquelle l'administrateur judiciaire a son domicile professionnel et, le cas échéant, un bureau annexe.
Si l'action disciplinaire est consécutive à une plainte, l'auteur de celle-ci est informé par le commissaire du Gouvernement.
Paragraphe 2 : De la suspension provisoire.
Article R811-50
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Dans les cas prévus à l'article L. 811-13 la suspension provisoire est prononcée par le tribunal de grande instance saisi soit par le procureur de la République, soit par le président du Conseil national des administrateurs judiciaires et des mandataires judiciaires, par assignation à jour fixe.
Lorsque l'action est engagée par le procureur de la République, celui-ci en informe le président du Conseil national. Lorsque l'action est engagée par le président du Conseil national, celui-ci notifie au ministère public une copie de l'assignation qu'il a fait délivrer.
Article R811-51
Les débats devant le tribunal de grande instance sont publics. Toutefois, celui-ci peut décider que les débats ne seront pas publics si l'administrateur judiciaire poursuivi en fait expressément la demande ou s'il doit résulter de leur publicité une atteinte à l'ordre public, à un secret protégé par la loi ou au secret des affaires. Il en est fait mention dans la décision. La juridiction statue publiquement, après que le ministère public a prononcé ses conclusions et que l'administrateur judiciaire a été entendu ou appelé.
Le président du Conseil national peut présenter ses observations, le cas échéant, par l'intermédiaire d'un membre du conseil.
Article R811-52
La décision est notifiée par le greffe, par lettre recommandée avec demande d'avis de réception, à l'intéressé et au président du Conseil national. Elle indique le délai et les modalités du recours ouvert à l'encontre de la décision.
Article R811-53
La cessation de plein droit de la suspension provisoire en application de l'article L. 811-13 et les décisions mettant fin à la suspension provisoire sont immédiatement notifiées par le procureur de la République à l'administrateur judiciaire et à l'administrateur provisoire désigné.
La mission de l'administrateur provisoire prend fin dès réception de cette notification.
Article R811-54
L'appel en matière de suspension provisoire est formé par déclaration au greffe de la cour d'appel. L'appelant notifie son appel aux autres parties par lettre recommandée avec demande d'avis de réception.
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Article R811-55
L'appel est formé dans un délai de quinze jours qui court, à l'égard du ministère public, du jour de la décision. Il en est de même pour l'administrateur judiciaire si la décision a été rendue en sa présence ou en présence de son défenseur. Dans les autres cas, le délai court à compter de la notification de la décision, et notamment lorsque le président du Conseil national a été à l'origine de la saisine du tribunal.
En cas d'appel d'une partie, un délai supplémentaire de huit jours est accordé à l'autre partie pour former un appel incident.
Article R811-56
Le recours est instruit et jugé selon les règles applicables à la procédure sans représentation obligatoire. Le président du conseil national ou son représentant peut être entendu, s'il en fait la demande, par la cour d'appel.
La décision de la cour d'appel est notifiée, par lettre recommandée avec demande d'avis de réception, aux personnes mentionnées à l'article R. 811-50.
Article R811-57
La décision suspendant provisoirement de ses fonctions l'administrateur judiciaire est exécutoire par provision.
Le commissaire du Gouvernement assure l'exécution des sanctions disciplinaires et des mesures de suspension provisoire. Il informe les procureurs généraux près les cours d'appel des décisions passées en force de chose jugée prononçant l'interdiction temporaire ou la radiation ou ordonnant une mesure de suspension provisoire ; ceux-ci portent ces décisions à la connaissance des juridictions de leur ressort.
En outre, le commissaire du Gouvernement requiert, le cas échéant, l'administrateur provisoire désigné dans les conditions prévues à l'article R. 811-58 de procéder à l'information des présidents des juridictions ayant décerné des mandats à l'administrateur judiciaire.
Section 3 : De la désignation d'un administrateur provisoire.
Article R811-58
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Lorsque, pour quelque cause que ce soit, un administrateur judiciaire se trouve dans l'impossibilité d'exercer ses fonctions, le procureur de la République près le tribunal de grande instance dans le ressort duquel l'administrateur judiciaire a son domicile professionnel requiert le président du tribunal de grande instance, statuant sur requête, de désigner sans délai, pour accomplir les actes nécessaires à la gestion du cabinet, un administrateur provisoire choisi parmi les personnes inscrites sur la liste des administrateurs judiciaires ou parmi celles qui remplissent les conditions pour y être inscrites.
L'administrateur provisoire est habilité à exercer les mandats de justice confiés à l'administrateur judiciaire empêché.
Aucun mandat de justice ne peut être confié à l'administrateur judiciaire qui se trouve dans l'impossibilité d'exercer ses fonctions par l'effet d'une peine d'interdiction temporaire.
Article R811-59
L' administrateur provisoire désigné dans les conditions prévues à l' article précédent a droit à une rémunération fixée par le président du tribunal de grande instance qui a procédé à sa désignation.
Cette décision est susceptible de recours selon les dispositions des articles 714 à 718 du code de procédure civile.
Chapitre II : Des mandataires judiciaires
Section 1 : De l'accès à la profession
Sous-section 1 : De la Commission nationale d'inscription et de discipline des mandataires judiciaires.
Article R812-1
La liste des mandataires judiciaires est établie par la commission nationale instituée par l'article L. 812-2.
Article R812-2
Le magistrat du parquet, commissaire du Gouvernement auprès de la commission nationale
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instituée par l'article L. 812-2, et son suppléant sont désignés par le garde des sceaux, ministre de la justice.
La personne inscrite sur la liste des experts en diagnostic d'entreprise membre de la commission et son suppléant sont désignés par le garde des sceaux, ministre de la justice. Elle remplace le mandataire judiciaire dont l'inscription sur la liste est la plus récente. En cas d'égalité d'ancienneté, elle remplace le mandataire judiciaire le moins âgé.
Le mandat du président et des membres de la commission prend effet à la date de la première réunion qui suit leur désignation. Pour cette première réunion, la commission se réunit sur convocation de son secrétaire.
Lorsqu'un membre est définitivement empêché en cours de mandat, il est procédé à son remplacement. Les fonctions du nouveau membre expirent à la date à laquelle auraient cessé celles du membre qu'il remplace.
Le secrétariat de la commission est assuré par un fonctionnaire du ministère de la justice.
Article R812-3
Les dispositions prévues aux articles R. 811-3, R. 811-4, R. 811-5 et R. 811-6 relatives à l'élection à la commission nationale des administrateurs judiciaires et de leurs suppléants sont applicables à l'élection à la commission nationale des mandataires judiciaires et de leurs suppléants.
Sous-section 2 : Des conditions d'inscription sur les listes de mandataires judiciaires.
Article R812-4
Ne peuvent être admises à se présenter à l'examen d'accès au stage professionnel prévu à l'article L. 812-3 que les personnes titulaires des titres ou diplômes mentionnés aux articles R. 811-7 et R. 811-8.
Article R812-5
Les règles relatives au stage professionnel définies aux articles R. 811-9, R. 811-10, R. 811-11, R. 811-12, R. 811-14 et R. 811-16 sont applicables aux mandataires judiciaires.
Article R812-6
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Le jury de l'examen d'accès au stage est celui prévu à l'article R. 811-10. Toutefois, le professeur ou le maître de conférences de sciences économiques ou de gestion est remplacé par un professeur ou un maître de conférences de droit et les deux administrateurs judiciaires sont remplacés par deux mandataires judiciaires désignés dans les mêmes conditions.
Article R812-7
En application des dispositions de l'article L. 812-3, bénéficient de la dispense de l'examen d'accès au stage :
1° Les administrateurs judiciaires ayant exercé leur profession pendant trois ans au moins ;
2° Les avocats, notaires, commissaires-priseurs judiciaires, huissiers de justice, greffiers des tribunaux de commerce, experts-comptables, commissaires aux comptes ayant exercé leur profession pendant cinq ans au moins.
Article R812-8
La durée du stage est de trois ans au moins et de six ans au plus.
Le stage consiste dans la pratique d'activités permettant d'acquérir une expérience suffisante dans le domaine des procédures collectives, en qualité de collaborateur d'un mandataire judiciaire et sous son contrôle direct.
Le stage peut être accompli pour une période n'excédant pas le tiers de sa durée auprès d'une personne exerçant une profession juridique réglementée ou auprès d'un expert-comptable ou d'un commissaire aux comptes ou dans les services juridiques et financiers d'un établissement de crédit.
Article R812-9
Les dispositions du premier alinéa de l'article R. 811-17 relatives au stage sont applicables aux personnes inscrites sur le registre de stage. Le commissaire du Gouvernement adresse au garde des sceaux, ministre de la justice, dans les quinze jours de leur notification, les décisions de dispense fondées sur le deuxième alinéa de l'article R. 811-17.
Article R812-10
Les dispositions de l'article R. 811-18 relatives au certificat de stage ainsi qu'au refus de délivrance
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de ce certificat sont applicables aux personnes inscrites sur le registre de stage.
Article R812-11
Le jury chargé de procéder à l'examen professionnel des mandataires judiciaires est celui prévu à l'article R. 811-19. Toutefois, les deux administrateurs judiciaires sont remplacés par deux mandataires judiciaires nommés après avis du Conseil national des administrateurs judiciaires et des mandataires judiciaires. Les articles R. 811-20 et R. 811-21 sont applicables.
Article R812-12
Les dispositions des articles R. 811-22 à R. 811-24 relatives à l'examen d'aptitude sont applicables aux candidats à la profession de mandataire judiciaire.
L'examen est organisé dans les conditions définies à l'article R. 811-22.
Article R812-13
Les dispositions de l'article R. 811-25 relatives aux demandes de dispense d'une partie du stage sont applicables aux demandes de dispense fondées sur les dispositions du huitième alinéa de l'article L. 812-3.
Article R812-14
En application des dispositions du huitième alinéa de l'article L. 812-3, les avocats, les notaires, les commissaires-priseurs judiciaires, les huissiers de justice ainsi que les greffiers des tribunaux de commerce, ayant exercé leur profession pendant cinq ans au moins, peuvent être dispensés par la commission d'une partie du stage professionnel et de tout ou partie des épreuves à caractère juridique de l'examen d'aptitude, à l'exception de celle relative au statut et à la déontologie de la profession de mandataire judiciaire.
Les experts-comptables et les commissaires aux comptes ayant exercé leur profession pendant cinq ans au moins peuvent être dispensés par la commission d'une partie du stage professionnel et de tout ou partie des épreuves à caractère économique, comptable ou de gestion.
Les administrateurs judiciaires peuvent être dispensés par la commission d'une partie du stage professionnel et sont dispensés de l'examen d'aptitude. Ils peuvent être inscrits sur la liste des mandataires judiciaires sous la condition suspensive d'avoir été retirés de la liste des administrateurs judiciaires dans les conditions de l'article R. 811-36.
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La commission statue dans les conditions prévues aux articles R. 811-33 à R. 811-35.
Article R812-15
Peuvent être inscrites sur la liste des mandataires judiciaires, en application du dernier alinéa de l'article L. 812-3, les personnes qui ont suivi avec succès un cycle d'études d'une durée minimale de trois ans ou d'une durée équivalente à temps partiel dans une université ou un établissement d'enseignement supérieur ou dans un autre établissement de même niveau de formation et, le cas échéant, la formation professionnelle requise en plus de ce cycle d'études et qui justifient :
1° De diplômes, certificats ou autres titres permettant l'exercice de la profession dans un Etat membre de la Communauté européenne ou dans un Etat partie à l'accord sur l'Espace économique européen délivrés :
a) Soit par l'autorité compétente de cet Etat et sanctionnant une formation acquise de façon prépondérante dans la Communauté européenne ou dans un Etat partie à l'accord sur l'Espace économique européen ;
b) Soit par un pays tiers, à condition que soit fournie une attestation émanant de l'autorité compétente de l'Etat membre qui a reconnu les diplômes, certificats ou autres titres certifiant que leur titulaire a une expérience professionnelle de trois ans au moins dans cet Etat ;
2° Ou de l'exercice à plein temps de la profession pendant deux ans au moins au cours des dix années précédentes dans un Etat membre qui ne réglemente pas l'accès ou l'exercice de cette profession, à condition que cet exercice soit attesté par l'autorité compétente de cet Etat.
Article R812-16
Sauf si les connaissances qu'elles ont acquises au cours de leur expérience professionnelle sont de nature à rendre cette vérification inutile, les personnes mentionnées à l'article R. 812-15 subissent devant le jury chargé de l'examen d'accès au stage un examen de contrôle des connaissances, organisé par le Conseil national des administrateurs judiciaires et des mandataires judiciaires, dont le programme et les modalités sont fixés par arrêté du garde des sceaux, ministre de la justice :
1° Lorsque leur formation porte sur des matières substantiellement différentes de celles qui figurent au programme des titres et diplômes mentionnés à l'article R. 811-7 et de l'examen de stage professionnel mentionné à l'article R. 811-9 ;
2° Ou lorsqu'une ou plusieurs des activités professionnelles dont l'exercice est subordonné à la possession de ces diplômes et de cet examen ne sont pas réglementées dans l'Etat membre d'origine ou de provenance ou sont réglementées de manière différente et que cette différence est caractérisée par une formation spécifique requise dans l'Etat membre d'accueil portant sur des matières substantiellement différentes de celles couvertes par le diplôme dont le demandeur fait état.
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Article R812-17
A la réception du dossier complet d'une personne mentionnée à l'article R. 812-15, un récépissé lui est délivré. La commission nationale se prononce par décision motivée dans un délai de quatre mois à compter de la délivrance du récépissé.
La décision par laquelle la commission nationale arrête la liste des candidats soumis à l'examen de contrôle des connaissances précise, le cas échéant, les matières sur lesquelles chacun des candidats est interrogé compte tenu de sa formation initiale.
La commission statue dans les conditions prévues aux articles R. 811-33 à R. 811-35.
Nul ne peut se présenter plus de trois fois à l'examen.
Article R812-18
La commission nationale inscrit les sociétés civiles professionnelles et les sociétés d'exercice libéral de mandataires judiciaires prévues par l'article L. 812-5 sur la liste ainsi que chacun des associés. Le nom de chacun de ceux-ci est suivi de la mention de la raison ou dénomination sociale de la société.
L'appartenance aux autres groupements ou sociétés prévus par l'article L. 812-5 est immédiatement portée à la connaissance de la commission.
Sous-section 3 : De la procédure d'inscription sur les listes de mandataires judiciaires.
Article R812-19
Les dispositions relatives à la procédure d'inscription des administrateurs judiciaires prévues aux articles R. 811-31 à R. 811-35 sont applicables aux mandataires judiciaires.
Article R812-20
Les dispositions des articles R. 811-36 à R. 811-39 relatives à la tenue et à la mise à jour de la liste des administrateurs judiciaires sont applicables à la commission nationale.
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Section 2 : De la surveillance, de l'inspection et de la discipline.
Article R812-21
Les dispositions des articles R. 811-40 à R. 811-42 relatives à la surveillance et à l'inspection des administrateurs judiciaires sont applicables aux mandataires judiciaires.
Article R812-22
Les dispositions des articles R. 811-43 à R. 811-56 relatives à la procédure disciplinaire devant la commission nationale et à la procédure de suspension provisoire devant le tribunal de grande instance des administrateurs judiciaires sont applicables aux mandataires judiciaires.
Article R812-23
Les dispositions des articles R. 811-57 à R. 811-59 relatives à l'exécution des sanctions disciplinaires et des mesures de suspension provisoire et relatives à l'administration provisoire sont applicables aux mandataires judiciaires.
Toutefois, pour l'application de l'article R. 811-58, l'administrateur provisoire est choisi parmi les personnes inscrites sur la liste des mandataires judiciaires ou parmi celles qui remplissent les conditions pour y être inscrites.
Chapitre III : Des experts en diagnostic d'entreprise.
Chapitre IV : Dispositions communes
Section 1 : Des recours contre les décisions des commissions d'inscription et de discipline.
Article R814-1
Un recours contre la décision de la commission statuant en matière d'inscription peut être exercé
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devant la cour d'appel de Paris par l'intéressé, le garde des sceaux, ministre de la justice, le commissaire du Gouvernement et le président du Conseil national, dans le délai d'un mois à compter de la date de réception de la lettre de notification de la décision.
Le recours est formé soit par déclaration au greffe de la cour d'appel, soit par lettre recommandée avec demande d'avis de réception adressée au greffier en chef.
Le greffier en chef en avise, selon le cas, l'intéressé, le garde des sceaux, ministre de la justice, le commissaire du Gouvernement ou le président du Conseil national.
Le recours est instruit et jugé selon les règles applicables à la procédure sans représentation obligatoire.
Article R814-2
Un recours peut être exercé devant la cour d'appel de Paris, dans le délai d'un mois à compter de la notification de la décision de la commission statuant en matière disciplinaire, par l'intéressé, le garde des sceaux, ministre de la justice, et le commissaire du Gouvernement. Il peut également être exercé, dans le même délai, par le procureur général et par le président du Conseil national lorsqu'ils ont engagé l'action disciplinaire. Il est formé soit par déclaration remise contre récépissé au greffe de la cour d'appel de Paris, soit par lettre recommandée avec demande d'avis de réception adressée au greffier en chef.
Le recours est instruit et jugé selon les règles applicables à la procédure sans représentation obligatoire.
La décision de la cour d'appel est notifiée, par le greffe, par lettre recommandée avec demande d'avis de réception, aux personnes mentionnées à l'alinéa premier.
Section 2 : De la représentation des professions auprès des pouvoirs publics.
Article R814-3
Le Conseil national établit un ensemble de règles professionnelles soumis à l'approbation du garde des sceaux, ministre de la justice.
Le garde des sceaux, ministre de la justice peut demander au Conseil national d'actualiser ou de réviser ces règles dans un délai qu'il lui impartit.
Ces règles prévoient notamment :
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1° Les modalités d'organisation et de financement de la formation professionnelle ;
2° L'harmonisation des méthodes comptables utilisées par chaque professionnel, la tenue quotidienne obligatoire d'une comptabilité permettant de s'assurer de la représentation des fonds, effets, titres et autres valeurs appartenant à autrui, et l'agrément des systèmes informatiques de tenue de la comptabilité ;
3° Les conditions de délégation de signature au sein de l'étude et de conservation des pièces justificatives ainsi que les autres mesures propres à assurer la sécurité dans la gestion des dossiers et la gestion des fonds de tiers ;
4° Les conditions dans lesquelles l'administrateur judiciaire ou le mandataire judiciaire fait connaître à l'autorité mandante les intérêts économiques et financiers qu'il détient, directement ou indirectement, et qui peuvent faire obstacle à l'attribution d'un mandat dans une affaire déterminée ;
5° Les modalités de présentation des demandes des administrateurs judiciaires et des mandataires judiciaires aux fins d'arrêté de leurs émoluments ainsi que les autres mesures propres à permettre le contrôle du respect des règles relatives à leur tarif ;
6° L'harmonisation de la présentation de leur compte rendu de fin de mission par les administrateurs judiciaires et les mandataires judiciaires ;
7° Les conditions dans lesquelles les administrateurs judiciaires et les mandataires judiciaires portent à la connaissance du Conseil national les informations économiques et sociales issues des procédures au titre desquelles ils interviennent ;
8° Les conditions dans lesquelles l'administrateur judiciaire ou le mandataire judiciaire qui demande son retrait de la liste ou qui cesse l'exercice individuel de sa profession organise le transfert des dossiers qui lui ont été confiés et des fonds qu'il détient.
Ces règles sont portées à la connaissance des professionnels par lettre recommandée avec demande d'avis de réception. Leur non-respect peut entraîner des poursuites disciplinaires.
Si ces règles n'ont pas été actualisées ou révisées par le Conseil national dans le délai imparti, elles le sont par le garde des sceaux, ministre de la justice.
Article R814-4
Pour l'exercice de ses attributions en matière de formation professionnelle, le Conseil national constitue une commission de formation professionnelle, composée des membres suivants :
1° Le président et le vice-président du Conseil national ;
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2° Un administrateur judiciaire et un mandataire judiciaire désignés par Conseil national ;
3° Un administrateur judiciaire et un mandataire judiciaire désignés par la caisse de garantie ;
4° Un magistrat de l'ordre judiciaire désigné par le garde des sceaux, ministre de la justice ;
5° Un juge consulaire désigné par la conférence des juges consulaires de France ;
6° Trois professeurs, maîtres de conférences ou chargés d'enseignement choisis par le Conseil national.
Cette commission assiste le Conseil national dans l'organisation de l'enseignement professionnel en vue de la préparation à l'examen d'aptitude aux fonctions d'administrateur judiciaire et de mandataire judiciaire. Elle met les candidats stagiaires en relation avec les professionnels, facilite la réalisation des stages et en assure le suivi. Elle recommande notamment l'affectation dans une étude des stagiaires qui n'ont pas trouvé de stage. Elle assiste le Conseil national dans l'organisation de la formation continue des professionnels en activité. Le Conseil national valide, après avis de la commission, les formations autres que celles qu'il organise.
Article R814-5
Le Conseil national des administrateurs judiciaires et des mandataires judiciaires est composé de seize membres, huit membres représentant les administrateurs judiciaires et huit membres représentant les mandataires judiciaires.
Les membres sont élus au scrutin de liste à la représentation proportionnelle par deux collèges, l'un composé des personnes physiques inscrites sur la liste nationale des administrateurs judiciaires, l'autre composé des personnes physiques inscrites sur la liste nationale des mandataires judiciaires. Chaque collège élit huit membres. Le vote a lieu sans panachage ni vote préférentiel.
Les membres du Conseil national sont élus pour une période de quatre ans, renouvelable une fois. Ils ne sont rééligibles pour un mandat supplémentaire qu'après un intervalle de quatre ans, après l'expiration, le cas échéant, de leur second mandat.
Article R814-6
Le bureau du Conseil national organise l'élection. Il détermine les modalités applicables, notamment celles du vote par correspondance, autres que celles prévues par le présent titre, selon des règles soumises à l'approbation du garde des sceaux, ministre de la justice.
Chaque déclaration de candidature indique le titre de la liste présentée. Elle comporte les nom et prénoms du candidat, son domicile professionnel, sa signature, la date à laquelle il a été inscrit sur
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la liste nationale, ou, lorsqu'il s'agit d'un mandataire judiciaire, la liste régionale si son inscription sur celle-ci est antérieure à l'établissement de la liste nationale.
Chaque liste comprend au moins quatre candidats. Nul ne peut être candidat sur plus d'une liste.
Article R814-7
Il est attribué à chaque liste autant d'élus que le nombre de suffrages lui revenant contient de fois le quotient électoral. Le quotient électoral est égal au nombre total des suffrages obtenus par les différentes listes divisé par le nombre de délégués à élire.
Au cas où aucun siège ne peut être pourvu ou s'il reste des sièges à pourvoir, les sièges restants sont attribués sur la base de la plus forte moyenne.
A cet effet, le nombre de voix obtenues par chaque liste est divisé par le nombre, augmenté d'une unité, des sièges attribués à la liste. Les différentes listes sont placées dans l'ordre décroissant des moyennes ainsi obtenues. Le premier siège non pourvu est attribué à la liste ayant la plus forte moyenne.
Il est procédé successivement à la même opération pour chacun des sièges non pourvus, jusqu'au dernier.
Dans le cas où deux listes ont la même moyenne et où il ne reste qu'un siège à pourvoir, il est attribué à la liste qui a obtenu le plus grand nombre de voix.
Si deux listes ont obtenu le même nombre de voix, le candidat le plus âgé est proclamé élu.
Article R814-8
Si un membre du Conseil national vient à cesser ses fonctions pour quelque cause que ce soit avant l'expiration de leur durée normale, il est pourvu à son remplacement, dans les trois mois, par le premier candidat non élu de la liste. S'il n'y a plus de candidat non élu sur la liste, il est procédé à une élection au scrutin majoritaire uninominal à un tour par le collège auquel appartenait l'intéressé.
Dans tous les cas, les fonctions du nouveau membre expirent à la date à laquelle auraient pris fin celles du membre qu'il remplace. Si la durée de son mandat est inférieure à deux ans, l'intéressé est éligible pour une période de quatre ans immédiatement renouvelable pour une durée égale.
Article R814-9
Tout administrateur judiciaire ou tout mandataire judiciaire peut déférer l'élection des membres du
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Conseil national à la cour d'appel de Paris dans un délai de dix jours à compter de la proclamation des résultats. La réclamation est remise contre récépissé ou adressée par lettre recommandée avec demande d'avis de réception au greffier en chef de la cour d'appel. Le recours est instruit et jugé selon les règles applicables à la procédure sans représentation obligatoire.
Article R814-10
Les membres du Conseil national élisent en leur sein, de manière paritaire, un président, un vice-président et quatre membres, qui constituent le bureau.
Le bureau est élu au scrutin uninominal majoritaire à un tour pour une période de deux ans.
En cas d'égalité des voix, le plus âgé des candidats est proclamé élu.
Le président et le vice-président appartiennent, en alternance, l'un à la profession des administrateurs judiciaires, l'autre à la profession des mandataires judiciaires.
Le président sortant n'est rééligible à cette fonction et à celle de vice-président qu'après un intervalle de quatre années au moins.
Article R814-11
Le mandat du président, du vice-président et des membres du bureau prend fin lorsqu'ils cessent de remplir les conditions pour être membres du Conseil national. Il est alors pourvu à leur remplacement dans le délai de trois mois. En ce cas, les fonctions du nouveau membre expirent à l'époque où auraient cessé celles du membre qu'il a remplacé.
Article R814-12
Les fonctions de membre du Conseil national et celles de membre du bureau de ce conseil sont gratuites et ne peuvent donner lieu qu'au remboursement de frais de voyage et de séjour, dans les conditions fixées par le Conseil national.
Le président peut percevoir, pour frais de représentation, une indemnité dont le montant est fixé par le Conseil national.
Article R814-13
Le Conseil national ne peut valablement délibérer qu'en présence de cinq membres au moins de
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chaque collège, le bureau de deux membres au moins de chaque profession.
En cas de partage égal des voix, le président a voix prépondérante.
Article R814-14
Le Conseil national des administrateurs judiciaires et des mandataires judiciaires établit son budget. Il dresse, le 1er mars de chaque année, son bilan pour les opérations de l'année précédente. Ce bilan est certifié par un commissaire aux comptes choisi par le bureau.
Il fixe le montant de la cotisation que verse annuellement au conseil national chaque administrateur judiciaire et chaque mandataire judiciaire ainsi que la fraction de cette cotisation affectée à la formation professionnelle.
Article R814-15
Le Conseil national élabore un règlement intérieur qui régit son mode de fonctionnement et celui du bureau et fixe les prérogatives des organes du Conseil. Ce règlement et ses modifications ultérieures doivent être adoptées par une majorité des deux tiers du Conseil.
Le président du Conseil national convoque celui-ci au moins une fois par trimestre et chaque fois qu'il le juge utile. Il le convoque également sur un ordre du jour déterminé à la demande de quatre membres du Conseil ou du garde des sceaux, ministre de la justice.
Section 3 : De la garantie de la représentation des fonds, de la responsabilité civile professionnelle et de la rémunération
Sous-section 1 : De la garantie de la représentation des fonds et de la responsabilité civile professionnelle.
Article R814-16
La caisse de garantie instituée à l'article L. 814-3 a son siège à Paris.
Article R814-17
La caisse de garantie est gérée par un conseil d'administration composé de douze membres, dont six
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administrateurs judiciaires et six mandataires judiciaires, inscrits sur les listes nationales.
Ces membres sont élus pour cinq ans. Les six administrateurs judiciaires sont élus par les personnes physiques inscrites sur la liste nationale des administrateurs judiciaires et les six mandataires judiciaires par celles inscrites sur la liste nationale des mandataires judiciaires.
En cas de vacance d'un siège pour quelque cause que ce soit, notamment lorsque le professionnel concerné a obtenu son transfert d'inscription de la liste nationale des administrateurs judiciaires sur la liste nationale des mandataires judiciaires ou réciproquement, le siège est pourvu par le premier candidat non élu dans la catégorie professionnelle concernée.
S'il n'y a plus de candidat non élu, il est procédé à une élection au scrutin uninominal majoritaire à un tour.
Dans tous les cas, les fonctions des nouveaux membres expirent à la date à laquelle auraient cessé celles des membres qu'ils remplacent.
Article R814-18
Les élections sont organisées par le conseil d'administration de la caisse de garantie qui détermine les modalités qui leur sont applicables selon des règles soumises à l'approbation du garde des sceaux, ministre de la justice. Le bureau chargé du dépouillement des votes comprend le président, le vice-président, le secrétaire et le trésorier du conseil d'administration de la caisse.
Les candidats qui, dans chaque collège, ont obtenu le plus grand nombre de voix sont élus.
Les réclamations sont portées devant la cour d'appel de Paris.
Les membres de la caisse ne sont rééligibles qu'une fois.
Sous réserve des dispositions du présent article, les règles de l'article R. 811-3 sont applicables à l'élection des membres du conseil d'administration.
Article R814-19
Le conseil d'administration élit parmi ses membres un président, un vice-président, un secrétaire et un trésorier.
Les décisions sont prises à la majorité des voix. En cas de partage égal des voix, celle du président est prépondérante.
Le magistrat du parquet chargé des fonctions de commissaire du Gouvernement auprès de la caisse
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de garantie et son suppléant sont désignés par le garde des sceaux, ministre de la justice.
Le président et le vice-président du Conseil national des administrateurs judiciaires et des mandataires judiciaires ou leur représentant désigné parmi les membres du Conseil national siègent au sein du conseil d'administration de la caisse avec voix consultative.
Article R814-20
Le conseil d'administration fixe les dépenses de gestion de la caisse de garantie et gère son actif.
Il établit, avant le 31 mars de chaque année, le bilan de la caisse pour les opérations de l'année précédente. Ce bilan est certifié par un commissaire aux comptes choisi par le conseil d'administration de la caisse de garantie.
Le conseil d'administration réunit une assemblée générale des cotisants pour lui présenter ce bilan.
Article R814-21
Le montant des cotisations des administrateurs judiciaires et des mandataires judiciaires inscrits est fixé chaque année par le conseil d'administration de la caisse de garantie sur la base du montant des fonds non distribués par le professionnel au 31 décembre de l'année précédente pour la garantie en matière de représentation des fonds et sur celle du chiffre d'affaires de l'étude pour la garantie concernant la responsabilité civile professionnelle.
En cas de désaccord du commissaire du Gouvernement sur le montant des cotisations, celui-ci est fixé par arrêté conjoint du ministre chargé de l'économie et du garde des sceaux, ministre de la justice.
Article R814-22
Les fonds disponibles de la caisse de garantie sont obligatoirement déposés à la Caisse des dépôts et consignations. Ils peuvent être placés en obligations et autres valeurs émises ou garanties par un Etat membre de la Communauté européenne.
Article R814-23
Les contrats d'assurance de responsabilité civile professionnelle doivent prévoir une garantie minimale de 800 000 euros par sinistre et par an pour chaque personne assurée.
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Article R814-24
Les garanties dont doivent justifier l'administrateur judiciaire non inscrit sur la liste nationale, désigné dans les conditions prévues par le deuxième alinéa de l'article L. 811-2 et le mandataire judiciaire non inscrit sur la liste nationale, désigné dans les conditions prévues par le premier alinéa du II de l'article L. 812-2, doivent être au moins équivalentes à celles prévues à l'article R. 814-23.
Lorsque l'assurance a été souscrite par l'intermédiaire de la caisse de garantie, ses modalités en sont fixées, après avis du commissaire du Gouvernement, par accord entre le professionnel non inscrit et la caisse.
Article R814-25
Le président du conseil d'administration de la caisse de garantie informe le procureur général près la cour d'appel dans le ressort de laquelle l'intéressé a son domicile professionnel, le commissaire du Gouvernement près la commission d'inscription et de discipline, le magistrat coordonnateur mentionné à l'article R. 811-40, ainsi que le président du Conseil national, de toute action en responsabilité civile professionnelle exercée contre un administrateur judiciaire ou un mandataire judiciaire.
Article R814-26
La caisse de garantie peut souscrire des contrats d'assurance groupe permettant le service, au profit de ses adhérents qui souhaitent en bénéficier, de prestations en matière de retraite complémentaire et de prévoyance sociale.
Sous-section 2 : De la rémunération.
Article R814-27
La rémunération des administrateurs judiciaires au titre des mandats qui leur sont confiés en matière civile est fixée sur justification de l' accomplissement de leur mission par le président de la juridiction les ayant désignés.
Cette décision est susceptible de recours selon les règles des articles 714 à 718 du code de procédure civile.
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Article R814-28
Le président de la juridiction qui confie une mission à un administrateur judiciaire, en matière civile, peut fixer le montant d'une provision à valoir sur la rémunération de ce professionnel.
Section 4 : De la comptabilité, du dépôt de fonds, des contrôles et dispositions diverses
Sous-section 1 : De la tenue de la comptabilité et du dépôt des fonds.
Article R814-29
Les administrateurs judiciaires et les mandataires judiciaires ouvrent, pour chaque mandat reçu, dans le cadre d'une comptabilité spéciale, un compte qui enregistre l'ensemble des mouvements concernant ce mandat ainsi que les opérations liées à ces mouvements.
La comptabilité spéciale de chaque administrateur judiciaire et de chaque mandataire judiciaire, arrêtée au 30 juin et au 31 décembre, fait l'objet d'un contrôle effectué par un commissaire aux comptes. Le mandataire de justice avise par lettre recommandée avec demande d'avis de réception le commissaire aux comptes choisi qui donne sa réponse dans les mêmes formes.
L'administrateur judiciaire et le mandataire judiciaire désignent un commissaire aux comptes suppléant dont les fonctions sont exercées dans les conditions prévues à l'article L. 823-1.
Le magistrat inspecteur régional et le magistrat coordonnateur mentionné à l'article R. 811-40 sont informés, dans les quinze jours, de toutes les décisions de nomination et de cessation de fonctions du commissaire aux comptes et de son suppléant.
Article R814-30
Le commissaire aux comptes informe le magistrat inspecteur régional, le magistrat coordonnateur mentionné à l'article R. 811-40 et le président du Conseil national des anomalies ou irrégularités, affectant ou non la représentation des fonds, dont il a connaissance au cours de l'exécution de sa mission. Il révèle les faits délictueux dont il a connaissance aux procureurs de la République près les tribunaux de grande instance dans le ressort desquels le mandataire de justice a son domicile professionnel et, le cas échéant, son ou ses bureaux annexes.
Le commissaire aux comptes fait parvenir, avant le 15 mars et le 15 septembre de chaque année, au magistrat inspecteur régional, au magistrat coordonnateur, au procureur de la République près le
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tribunal de grande instance dans le ressort duquel le mandataire de justice a son domicile professionnel ou un bureau annexe et au président du conseil national, une attestation de vérification de la comptabilité spéciale du mandataire de justice intéressé.
Cette attestation indique le montant des fonds, effets, titres et autres valeurs détenus par catégorie de mission et par établissement de crédit et mentionne toute anomalie ou irrégularité constatée.
Tout professionnel faisant l'objet d'une décision de retrait de la liste professionnelle, pour quelque motif que ce soit, en avise sans délai le commissaire aux comptes qu'il a désigné conformément à l'article R. 814-29. Celui-ci, dans le délai d'un mois à compter de la réception de cet avis, remet aux autorités mentionnées au deuxième alinéa une attestation de vérification de la comptabilité spéciale, établie au jour de la cessation des fonctions.
Article R814-31
Chaque mandat, judiciaire ou amiable, reçu par l'administrateur judiciaire ou le mandataire judiciaire est inscrit par ordre chronologique d'arrivée à l'étude sur un répertoire mentionnant notamment le numéro d'ordre, le nom de la juridiction mandante ou la qualité du mandant, la date de la décision de désignation, le nom de l'affaire, la nature de la mission, l'identification des établissements financiers auprès desquels les fonds sont déposés, la date et les modalités de l'achèvement de la mission.
Article R814-32
La comptabilité spéciale des administrateurs judiciaires et des mandataires judiciaires est tenue en partie double. Elle comprend obligatoirement un livre journal, des journaux auxiliaires, un grand livre, des grands livres auxiliaires des comptes individuels ouverts pour chaque mandat, une balance, un recueil des états périodiques et des reçus pour les versements d'espèces.
Elle respecte les règles professionnelles prévues à l'article R. 814-3.
Article R814-33
Les journaux auxiliaires mentionnent par ordre chronologique l'ensemble des opérations mentionnées à l'article R. 814-29.
Ils indiquent pour chaque opération la date, le nom de l'affaire, le libellé de l'opération et son montant. S'il s'agit d'une recette en espèces, le numéro du reçu est indiqué au regard de celle-ci dans une colonne du livre journal réservée à cet effet.
Article R814-34
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Des états sont établis chaque trimestre par les administrateurs judiciaires et les mandataires judiciaires pour tous les mandats n'ayant pas fait l'objet d'une reddition des comptes.
Ces états mentionnent pour chaque mandat : le numéro de l'affaire au répertoire, le nom de celle-ci, le nom de la juridiction mandante ou la qualité du mandant, la date de la décision de désignation, la nature de la mission concernée, les mouvements comptables enregistrés pour l'affaire depuis l'origine, les mouvements et le solde par compte ouvert à la Caisse des dépôts et consignations et dans d'autres établissements financiers, ainsi que l'ensemble des fonds, effets, titres ou valeurs appartenant à autrui et, le cas échéant, les espèces disponibles aux mains du professionnel.
Article R814-35
L'administrateur judiciaire ou le mandataire judiciaire adresse les états prévus à l'article précédent dans les quinze jours qui suivent l'achèvement du trimestre au greffe du tribunal de commerce et, s'il y a lieu, du tribunal de grande instance, ainsi qu'au procureur de la République près le tribunal de grande instance dans le ressort duquel il a son domicile professionnel, pour l'ensemble de ses mandats. Il adresse ces mêmes états au greffe du tribunal de commerce et, s'il y a lieu, du tribunal de grande instance, ainsi qu'aux procureurs de la République près les tribunaux de grande instance dans le ressort desquels il a son ou ses bureaux annexes, pour ses mandats concernant ces bureaux annexes.
Article R814-36
Un reçu numéroté est délivré pour toute remise du fonds en espèces. La série des numéros est ininterrompue, les reçus doivent être utilisés dans l'ordre numérique. Chaque reçu mentionne le nom et l'adresse du mandataire de justice, la date de la recette, son montant en lettres et en chiffres, le nom et l'adresse de la partie versante, le nom de l'affaire à laquelle ce règlement s'applique et la cause de celui-ci.
Article R814-37
A tout moment, le total des sommes dont l'administrateur judiciaire ou le mandataire judiciaire est comptable au titre d'un mandat doit être couvert par les fonds, effets, titres et autres valeurs appartenant à autrui déposés sur les comptes ouverts à la Caisse des dépôts et consignations et dans d'autres établissements financiers, et par les espèces en caisse.
Les fonds détenus au titre d'un mandat ne peuvent en aucun cas être utilisés au bénéfice d'un autre mandat.
Article R814-38
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Les dispositions des articles R. 814-29 à R. 814-41 s'appliquent également aux mandataires de justice autorisés à poursuivre un ou plusieurs dossiers en cours après leur retrait de la liste professionnelle, dans les conditions prévues aux articles L. 811-8 et L. 812-6, ainsi qu'aux personnes physiques désignées par les tribunaux dans les conditions prévues par le deuxième alinéa de l'article L. 811-2 et par le premier alinéa du II de l'article L. 812-2.
Article R814-39
Les sommes disponibles déposées sur les comptes bancaires ouverts au nom du débiteur ayant fait l'objet d'un jugement arrêtant un plan de cession doivent être versées à la Caisse des dépôts et consignations dans les quinze jours du prononcé de ce jugement. Ces comptes bancaires peuvent néanmoins continuer à fonctionner, pour la couverture des effets ou moyens de paiement émis avant la date du jugement.
Article R814-40
Lorsqu'un administrateur judiciaire ou un mandataire judiciaire dépose des fonds à la Caisse des dépôts et consignations sur un compte global rémunéré, il fait apparaître une fois par trimestre et à la fin de sa mission, en comptabilité spéciale ainsi que sur les états prévus à l'article R. 814-34, les sommes provenant des intérêts produits au profit de chaque entreprise. Ces sommes sont calculées au prorata des soldes moyens de chaque entreprise tels qu'ils apparaissent dans la comptabilité spéciale.
Article R814-41
Les administrateurs judiciaires dans l'exercice des mandats qui leur sont confiés en matière civile sont tenus de déposer à un compte ouvert à leur nom à la Caisse des dépôts et consignations, dès leur réception, tous les fonds qu'ils ont reçus dans le cadre des missions de justice, y compris les provisions pour frais et honoraires.
Ces sommes ne peuvent faire l'objet d'un retrait à leur profit qu'après fixation de leurs honoraires ou provisions par le juge. De même, tous les titres dont ils assurent la gestion sont remis pendant la durée de leur mission à la Caisse des dépôts et consignations.
Sous-section 2 : Des contrôles.
Article R814-42
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Chaque professionnel est soumis tous les trois ans à un contrôle qui porte sur l'ensemble de son activité. Il peut en outre, à tout moment, être soumis à un contrôle occasionnel qui porte soit sur une question particulière, soit sur l'ensemble de son activité. Peuvent également être soumis à un contrôle occasionnel les mandataires de justice retirés des listes professionnelles, qui sont autorisés à poursuivre un ou plusieurs dossiers en cours en vertu des articles L. 811-8 et L. 812-6.
Le contrôle occasionnel est prescrit par le président du Conseil national, le procureur de la République, le procureur général, le garde des sceaux, ministre de la justice, les commissaires du Gouvernement près les commissions d'inscription et de discipline, les magistrats inspecteurs régionaux ou le magistrat coordonnateur mentionné à l'article R. 811-40.
Les contrôleurs peuvent recueillir les observations des présidents des juridictions civiles et commerciales du premier degré dans le ressort desquelles le mandataire de justice contrôlé a son domicile professionnel, le cas échéant un bureau annexe, et dans le ressort desquelles il s'est vu confier une mission. Ils peuvent recueillir les observations du procureur de la République près ces juridictions, du commissaire aux comptes chargé du contrôle de la comptabilité spéciale de l'intéressé, du trésorier-payeur général, ainsi que de l'association pour la gestion du régime d'assurance des créances des salariés.
Article R814-43
Avant la fin de chaque année, le président du Conseil national adresse au garde des sceaux, ministre de la justice, la liste des membres de l'une et de l'autre professions que le bureau du conseil a désignés comme devant faire l'objet du contrôle périodique au cours de l'année suivante. Cette liste est également adressée au commissaire du Gouvernement près de la commission d'inscription et de discipline qui a procédé à leur inscription, ainsi qu'au magistrat coordonnateur mentionné à l'article R. 811-40.
Article R814-44
Avant la fin du troisième trimestre de chaque année, le président du Conseil national soumet à l'agrément du garde des sceaux, ministre de la justice, une liste des membres de l'une et de l'autre des professions susceptibles de procéder aux contrôles au cours de l'année suivante. Cette liste comprend au moins vingt administrateurs judiciaires et au moins trente mandataires judiciaires.
Le garde des sceaux, ministre de la justice, peut refuser son agrément à l'un ou plusieurs des professionnels figurant sur la liste. Le président du Conseil national dispose d'un délai de quinze jours à compter de la notification de la décision de refus d'agrément pour proposer une liste complémentaire.
En outre, le garde des sceaux, ministre de la justice, agrée par arrêté les autres personnes spécialement habilitées à procéder à des contrôles occasionnels, dont les noms lui sont soumis par le conseil national. Cet agrément est donné pour une année.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Article R814-45
Le contrôle est effectué par trois contrôleurs :
1° Deux administrateurs judiciaires ou mandataires judiciaires figurant sur la liste prévue à l'article R. 814-44 et n'exerçant pas leur activité dans le même ressort de cour d'appel que le professionnel contrôlé, dont l'un peut être remplacé, dans le cas d'un contrôle occasionnel, par l'une des personnes spécialement habilitées à cette fin ;
2° Un commissaire aux comptes figurant sur une liste établie pour six ans par le garde des sceaux, ministre de la justice, sur proposition du Conseil national des administrateurs judiciaires et des mandataires judiciaires après avis de la Compagnie nationale des commissaires aux comptes, qui ne peut être celui habituellement chargé du contrôle de la comptabilité du professionnel.
Ces contrôleurs sont désignés dans le cas d'un contrôle triennal par le président du Conseil national et dans le cas d'un contrôle occasionnel par l'autorité qui a prescrit celui-ci.
Un arrêté du garde des sceaux, ministre de la justice, fixe l'étendue minimale des vérifications auxquelles les contrôleurs doivent procéder.
Les frais occasionnés par la présence lors des contrôles du commissaire aux comptes prévu au 2° sont avancés par le Conseil national.
Article R814-46
Les contrôles occasionnels peuvent être effectués de manière inopinée.
Article R814-47
Le professionnel contrôlé peut demander à un confrère de son choix de l'assister lors du contrôle. Il peut également demander au commissaire aux comptes ayant procédé à la vérification de sa comptabilité en application de l'article R. 814-29 ou à un expert-comptable de son choix d'assister au contrôle.
Article R814-48
Si les contrôleurs découvrent des irrégularités ayant trait à la gestion et à la représentation des fonds, titres, effets et autres valeurs détenus pour le compte de tiers, ils en avisent immédiatement le procureur général, le magistrat inspecteur régional, le commissaire du Gouvernement près la
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
commission compétente, le magistrat coordonnateur mentionné à l'article R. 811-40 et le président du Conseil national.
Dans un délai de deux mois à compter de l'achèvement des opérations de contrôle, les contrôleurs établissent un projet de rapport et l'adressent par lettre recommandée avec demande d'avis de réception au professionnel contrôlé. Celui-ci dispose d'un délai d'un mois à compter de la réception pour formuler ses observations.
A l'issue de ce délai, un rapport définitif est établi par les contrôleurs, auquel sont annexées les éventuelles observations du professionnel contrôlé. Ce rapport est adressé au président du Conseil national et aux autorités mentionnées au premier alinéa.
Article R814-49
Lorsque les contrôleurs font preuve de négligence ou d'incapacité dans l'accomplissement de leur mission, ils sont passibles de retrait d'agrément sans préjudice, le cas échéant, de poursuites disciplinaires.
Sous-section 3 : De l'honorariat, du costume d'audience et du serment.
Article R814-50
Le titre d'administrateur judiciaire honoraire ou de mandataire judiciaire honoraire peut être conféré par la commission ayant procédé à l'inscription du professionnel qui sollicite l'attribution de ce titre.
L'honorariat ne peut être conféré qu'aux personnes ayant exercé leur activité pendant vingt ans au moins. Sont prises en compte les périodes pendant lesquelles l'intéressé a exercé en qualité de syndic administrateur judiciaire, d'administrateur judiciaire et liquidateur de sociétés, d'administrateur judiciaire séquestre près le tribunal de grande instance de Paris, d'administrateur judiciaire, ou de mandataire judiciaire.
La demande est adressée par lettre recommandée avec demande d'avis de réception au commissaire du Gouvernement près la commission compétente.
Le commissaire du Gouvernement fait procéder à une enquête par les procureurs généraux près les cours d'appel dans le ressort desquelles l'intéressé a eu ses domiciles professionnels. La commission se prononce comme en matière disciplinaire.
La décision est notifiée à l'intéressé par lettre recommandée avec demande d'avis de réception.
La décision de la commission qui rejette la demande tendant à l'attribution de l'honorariat est
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susceptible de recours dans les conditions prévues à l'article R. 814-1.
Le retrait de l'honorariat peut être prononcé par la commission sur la demande du commissaire du Gouvernement, selon les modalités prévues aux quatrième et sixième alinéas.
Article R814-51
Dans l'exercice de leurs fonctions, les administrateurs judiciaires et les mandataires judiciaires inscrits sur les listes dressées par les commissions nationales portent la toge, fermée par devant, à manches larges, la toque noire, et la cravate pareille à celle des juges.
Article R814-52
Dans le mois de leur inscription, les administrateurs judiciaires et les mandataires judiciaires prêtent serment devant la cour d'appel dans le ressort de laquelle est situé leur domicile professionnel, en ces termes : " Je jure d'exercer mes fonctions avec honneur, dignité, indépendance et probité, et de me conformer en toute occasion aux lois et règlements de ma profession ".
Ils ne peuvent exercer leurs fonctions qu'à compter du jour de leur prestation de serment.
Tout administrateur judiciaire ou mandataire judiciaire qui ne prête pas serment dans le mois de son inscription est déclaré démissionnaire de ses fonctions et retiré des listes par la commission qui a procédé à son inscription, sauf s'il peut justifier d'un motif valable.
Sous-section 4 : Du lieu d'exercice de la profession.
Article R814-53
L'administrateur judiciaire ou le mandataire judiciaire, personne physique ou personne morale, déjà inscrit et titulaire d'une étude déclare toute ouverture d'un bureau annexe au commissaire du Gouvernement près la commission qui a procédé à son inscription ainsi qu'au président du Conseil national.
Est considéré comme un bureau annexe tout local dans lequel l'administrateur judiciaire ou le mandataire judiciaire, personne physique ou personne morale, reçoit à titre professionnel des tiers et exerce ses missions légales, lorsqu'il est situé dans le ressort d'un tribunal de grande instance autre que celui dans lequel est situé son domicile professionnel ou son siège social.
Article R814-54
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
La déclaration est adressée quatre mois au moins avant la date prévue pour l'ouverture du bureau, par lettre recommandée avec demande d'avis de réception. Elle indique :
1° Le lieu du domicile professionnel ou du siège social de l'intéressé et le lieu où il envisage d'ouvrir un bureau annexe ;
2° Les dispositions prises par l'intéressé pour assurer ses missions à son domicile professionnel ou à son siège social et dans le bureau annexe, les conditions de fonctionnement de celui-ci ainsi que les mesures adoptées pour assurer toute liaison avec le bureau principal.
Article R814-55
Le commissaire du Gouvernement fait diligenter une enquête. Il demande l'avis des procureurs de la République près les tribunaux dans le ressort desquels sont situés le domicile professionnel ou le siège social de l'intéressé et, le cas échéant, son ou ses bureaux annexes. Il demande également l'avis du Conseil national par lettre recommandée avec demande d'avis de réception.
Il peut refuser l'ouverture du bureau annexe si celle-ci ne permet pas au professionnel d'exercer ses mandats conformément aux règles de la profession. La décision du commissaire du Gouvernement, qui doit intervenir dans les trois mois à compter de la réception de la déclaration et qui doit être motivée en cas de refus, est notifiée à l'intéressé, aux procureurs de la République dont l'avis a été sollicité et au président du Conseil national par lettre recommandée avec demande d'avis de réception.
La décision du commissaire du Gouvernement peut être déférée à la commission par l'intéressé, les procureurs de la République dont l'avis a été sollicité et le président du Conseil national, dans le délai d'un mois à compter de la notification, par lettre recommandée avec demande d'avis de réception. La commission statue alors dans les conditions prévues aux articles R. 811-33 à R. 811-35 et R. 814-1.
Article R814-56
L'administrateur judiciaire ou le mandataire judiciaire, personne physique ou personne morale, qui transfère son domicile professionnel ou son siège doit déclarer ce transfert au commissaire du Gouvernement près la commission qui a procédé à son inscription ainsi qu'au président du Conseil national. La procédure prévue aux articles R. 814-54 et R. 814-55 est applicable.
Article R814-57
L'administrateur judiciaire ou le mandataire judiciaire, exerçant au sein d'une société, qui quitte cette société pour exercer sa profession à titre individuel doit déclarer son installation au
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
commissaire du Gouvernement près la commission qui a procédé à son inscription ainsi qu'au président du Conseil national. La procédure prévue aux articles R. 814-54 et R. 814-55 est applicable.
Article R814-58
Il est procédé comme en matière civile pour tout ce qui n'est pas réglé par le présent titre.
Section 5 : Des sociétés d'administrateurs judiciaires et de mandataires judiciaires
Sous-section 1 : Dispositions communes aux diverses sociétés
Paragraphe 1 : De la constitution, de l'inscription sur la liste, des statuts et de l'immatriculation.
Article R814-59
La société est constituée sous la condition suspensive de son inscription sur la liste nationale des administrateurs judiciaires prévue par l'article L. 811-2 ou sur la liste nationale des mandataires judiciaires prévue par l'article L. 812-2.
Article R814-60
La demande d'inscription d'une société est présentée collectivement par les associés exerçant en son sein ou par le représentant légal de la société. Elle est adressée à la commission nationale d'inscription et de discipline des administrateurs judiciaires ou à celle des mandataires judiciaires par lettre recommandée avec demande d'avis de réception ou remise contre récépissé.
Elle est accompagnée d'un dossier qui comprend à peine d'irrecevabilité de la demande :
1° Un exemplaire des statuts de la société ;
2° Une copie de la décision d'inscription sur la liste nationale de chaque associé exerçant en son sein ;
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3° Une attestation du greffier du tribunal de commerce du lieu du siège social, constatant le dépôt au greffe de la demande et des pièces nécessaires à l'immatriculation ultérieure de la société au registre du commerce et des sociétés ;
4° La liste des associés exerçant la profession d'administrateur judiciaire ou de mandataire judiciaire au sein de la société avec leurs nom, prénoms, domicile et, dans le cas d'une demande d'inscription d'une société d'exercice libéral, de manière distincte avec les mêmes mentions, celle des associés mentionnés au deuxième alinéa de l'article 5 de la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est protégé, avec leur profession, la part de capital qu'ils détiennent et, s'il s'agit d'une personne morale, la raison ou dénomination sociale et le siège social ;
5° Le cas échéant, un exemplaire de la délibération de l'assemblée des associés habilitant le représentant légal à demander l'inscription.
Le commissaire du Gouvernement demande le bulletin n° 2 du casier judiciaire des membres des organes de gestion, de direction, d'administration ou de surveillance qui ne sont pas administrateur ou mandataire judiciaire.
Article R814-61
La commission nationale d'inscription et de discipline des administrateurs judiciaires statue sur la demande d'inscription dans les conditions prévues aux articles R. 811-33 à R. 811-35.
La commission nationale d'inscription et de discipline des mandataires judiciaires statue sur la demande d'inscription dans les conditions prévues aux articles R. 812-19 et R. 812-20.
Article R814-62
La commission nationale d'inscription et de discipline des administrateurs judiciaires ou celle des mandataires judiciaires peut refuser l'inscription de la société si sa création a pour effet de limiter le choix des juridictions dans des conditions contraires à une bonne administration de la justice.
Article R814-63
L'un des originaux de l'acte modificatif des statuts, si celui-ci est sous seing privé, ou une expédition de cet acte s'il a été établi en la forme authentique, est adressé par le ou les gérants, dans un délai d'un mois à compter de sa date, par lettre recommandée avec demande d'avis de réception, à la commission ayant établi la liste sur laquelle la société est inscrite. Il est accompagné de toutes pièces justificatives, notamment, si la modification des statuts résulte d'une cession de parts sociales ou de titres de capital, de celles qui établissent le prix de cette cession.
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Article R814-64
La commission nationale d'inscription et de discipline des administrateurs judiciaires se prononce sur les modifications des statuts dans les conditions prévues aux articles R. 811-33 à R. 811-35.
La commission nationale d'inscription et de discipline des mandataires judiciaires se prononce sur les modifications des statuts dans les conditions prévues aux articles R. 812-19 et R. 812-20.
Si les nouvelles dispositions des statuts ne sont pas conformes aux dispositions législatives ou réglementaires, la commission concernée peut imposer un délai de régularisation ; s'il n'a pas été procédé à la régularisation dans le délai imparti, la commission prononce, même d'office, la radiation de la liste dans les formes prévues pour l'inscription.
Article R814-65
La commission d'inscription et de discipline des administrateurs judiciaires ou la commission d'inscription et de discipline des mandataires judiciaires procède aux modifications de la liste qui résultent de celles des statuts.
Article R814-66
La commission nationale d'inscription et de discipline des administrateurs judiciaires ou celle des mandataires judiciaires est saisie de toute difficulté. Ses décisions sont susceptibles de recours, dans les conditions prévues à l'article R. 814-1.
Article R814-67
Si les statuts sont établis par acte sous seing privé, il en est dressé autant d'originaux qu'il est nécessaire pour la remise d'un exemplaire au siège social et à chaque associé et pour satisfaire aux dispositions de la présente section.
Article R814-68
Peuvent faire l'objet d'apports à une société d'administrateurs judiciaires et de mandataires judiciaires, en propriété ou en jouissance :
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1° Tous droits incorporels, à l'exclusion de ceux qui, d'une manière directe ou indirecte, auraient pour objet ou effet de conférer une valeur patrimoniale à l'activité de mandataire de justice, tous meubles et immeubles utiles à l'exercice de la profession ;
2° Toutes sommes en numéraire.
Article R814-69
L'immatriculation de la société et les formalités de publicité au registre du commerce et des sociétés sont régies par la section 1 du chapitre III du titre II du livre Ier relative au registre du commerce et des sociétés, sous réserve des dispositions des articles R. 814-70 et R. 814-127.
Article R814-70
Une ampliation de la décision d'inscription de la société sur la liste des administrateurs judiciaires ou sur celle des mandataires judiciaires est adressée par les associés de la société au greffe du tribunal où a été déposée la demande d'immatriculation au registre du commerce et des sociétés.
Au reçu de l'ampliation, le greffier procède à l'immatriculation de la société.
En cas de refus d'immatriculation, il en informe la commission nationale des administrateurs judiciaires ou celle des mandataires judiciaires.
Article R814-71
En cas de constitution de sociétés par voie de fusion ou de scission, les articles R. 814-59 à R. 814-62, R. 814-69, R. 814-70, R. 814-117 et R. 814-148 sont applicables.
Paragraphe 2 : De l'organisation et du fonctionnement de la société.
Article R814-72
En aucun cas une valeur représentative d'une clientèle ne peut être inscrite à l'actif du bilan de la société.
Article R814-73
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Si l'acte portant cession de titres de capital ou de parts sociales est établi sous seing privé, il en est dressé autant d'originaux qu'il est nécessaire pour la remise d'un exemplaire à chaque partie et pour satisfaire aux formalités requises.
Article R814-74
Toute convention par laquelle un des associés cède en vue de l'exercice de la profession au sein de la société la totalité ou une fraction de ses titres de capital ou parts sociales à un tiers est passée sous la condition suspensive de l'inscription de ce tiers sur la liste.
Article R814-75
Tout nouvel associé qui entend exercer au sein de la société produit le certificat d'inscription sur la liste.
Article R814-76
Toute décision de la société de racheter, dans les conditions particulières à chaque société, tout ou partie des titres ou parts d'un associé et toute convention par laquelle un des associés cède, dans les conditions déterminées par les statuts, tout ou partie de ses titres de capital ou parts sociales aux autres associés exerçant au sein de la société ou à l'un ou plusieurs d'entre eux, sont portées à la connaissance de la commission nationale d'inscription et de discipline des administrateurs judiciaires ou de celle des mandataires judiciaires par la société ou par le ou les associés cessionnaires, selon le cas.
Article R814-77
Les articles R. 814-76 et R. 814-80 sont également applicables à la transmission à titre gratuit de tout ou partie de ses titres de capital ou parts sociales consentie par l'un des associés.
Article R814-78
Le commissaire du Gouvernement près la Commission nationale compétente peut solliciter du commissaire aux comptes mentionné à l'article R. 814-29 un rapport spécial sur les conditions financières de la cession des parts sociales ou titres de capital afin de permettre à la commission d'examiner, en application de l'article R. 814-64, leur conformité avec les dispositions législatives
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ou réglementaires.
Article R814-79
En aucun cas, une valeur représentative d'une clientèle ne peut être prise en compte dans le calcul de la valeur des parts sociales ou des titres de capital.
Article R814-80
L'associé qui a été radié de la liste en application de l'article L. 811-12 ou L. 812-9, qui a fait l'objet d'un retrait en application de l'article L. 811-6 ou L. 812-4, ou qui a été contraint de se retirer de la société en application de l'article R. 814-93 ou R. 814-140, dispose d'un délai de six mois à compter, selon le cas, du jour de l'acceptation de sa démission, du jour où la décision de radiation ou de retrait est devenue définitive, ou de celui où la décision des autres associés de l'exclure de la société lui a été notifiée par lettre recommandée avec demande d'avis de réception, pour céder ses parts sociales ou titres de capital à un ou plusieurs associés, à la société ou à un tiers.
Article R814-81
Toute décision de proroger la société est immédiatement portée à la connaissance de la commission nationale d'inscription et de discipline des administrateurs judiciaires ou de celle des mandataires judiciaires.
Paragraphe 3 : De l'exercice de la profession sous la forme d'une société.
Article R814-82
Sous réserve de l'application de la présente section, les dispositions législatives et réglementaires relatives à l'exercice de la profession d'administrateur judiciaire ou de mandataire judiciaire sont applicables aux associés et, lorsqu'elles peuvent être appliquées à des personnes morales, à la société elle-même.
Article R814-83
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Le mandat de justice est exercé par la société d'administrateurs judiciaires ou de mandataires judiciaires. Le juge désigne celui ou ceux des associés qui conduiront la mission au sein de la société et en son nom.
Article R814-84
Un administrateur judiciaire ou un mandataire judiciaire associé exerçant au sein d'une société ne peut exercer sa profession à titre individuel ou en qualité de membre d'une autre société, quelle qu'en soit la forme.
Article R814-85
Chaque administrateur judiciaire associé exerçant au sein d'une société exerce les fonctions d'administrateur judiciaire au nom de la société.
Chaque mandataire judiciaire associé exerçant au sein d'une société exerce les fonctions de mandataire judiciaire au nom de la société.
Article R814-86
Les associés exerçant au sein de la société doivent lui consacrer toute leur activité professionnelle, l'informer et s'informer mutuellement de cette activité.
Article R814-87
Le nom de chacun des associés sur la liste nationale des administrateurs judiciaires ou sur la liste nationale des mandataires judiciaires est suivi de la mention de la raison ou dénomination sociale de la société au sein de laquelle il exerce.
En annexe de la liste nationale est dressée la liste des sociétés d'administrateurs judiciaires ou de mandataires judiciaires avec les indications suivantes :
1° Dénomination sociale ou raison sociale ;
2° Lieu du siège social ;
3° Noms de tous les associés exerçant en son sein.
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Article R814-88
Tous les registres et documents prévus par les textes législatifs ou réglementaires sont ouverts et établis au nom de la société.
Article R814-89
La dénomination ou la raison sociale d'une société d'administrateurs judiciaires ou de mandataires judiciaires figure dans tous documents et correspondances émanant de la société. Elle est complétée par les mentions prévues aux 1° et 2° de l'article R. 123-237.
Dans les actes professionnels, chaque associé exerçant au sein de la société indique la dénomination ou la raison sociale de la société d'administrateurs judiciaires ou de mandataires judiciaires dont il fait partie.
Article R814-90
Les procès-verbaux des délibérations des associés ainsi que ceux des délibérations du conseil d'administration et du conseil de surveillance sont établis sur un registre spécial préalablement coté et paraphé par le secrétaire de la commission nationale d'inscription et de discipline des administrateurs judiciaires ou de la commission nationale d'inscription et de discipline des mandataires judiciaires. Le registre est conservé au siège de la société.
Toutefois, les procès-verbaux peuvent être établis sur des feuilles mobiles numérotées sans discontinuité, paraphées dans les conditions prévues au premier alinéa. Dès qu'une feuille a été remplie, même partiellement, elle est jointe à celles précédemment utilisées. Toute addition, suppression, substitution ou inversion de feuilles est interdite.
Article R814-91
La société adhère à la caisse de garantie prévue à l'article L. 814-3. Il lui appartient de justifier des assurances prévues par l'article L. 814-4, répondant aux conditions de l'article R. 814-23, notamment pour l'application du deuxième alinéa de l'article 16 de la loi n° 66-879 du 29 novembre 1966 relative aux sociétés civiles professionnelles ou du deuxième alinéa de l'article 16 de la loi n° 90-1258 du 31 décembre 1990.
Article R814-92
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
En cas d'interdiction temporaire ou de suspension provisoire d'un ou de plusieurs associés, mais non de la totalité d'entre eux, ou de la société, il n'y a pas lieu de commettre d'administrateur provisoire.
En cas d'interdiction temporaire ou de suspension provisoire de la société ou de tous les associés, le procureur de la République près le tribunal de grande instance dans le ressort duquel la société a son siège requiert le président du tribunal de grande instance, statuant sur requête, de désigner sans délai, pour accomplir les actes nécessaires à la gestion de la société, un administrateur provisoire choisi parmi les personnes mentionnées, suivant la profession concernée, soit à l'article R. 811-58, soit à l'article R. 812-23. Les dispositions du deuxième alinéa de l'article R. 811-58, des articles R. 811-59 et R. 812-23 sont applicables selon que la société exerce l'une ou l'autre des professions.
Article R814-93
L'associé qui a été radié de la liste ou qui a été retiré de celle-ci en application de l'article L. 811-6, de l'article L. 811-12, de l'article L. 812-4 ou de l'article L. 812-9 perd sa qualité d'associé et cesse d'exercer son activité professionnelle dès que la décision prononçant la radiation ou le retrait est définitive.
Ses titres de capital ou parts sociales sont cédés dans les conditions fixées aux articles R. 814-80 et R. 814-128.
Les dispositions des articles R. 814-92 et R. 814-153 sont applicables en cas de radiation ou de retrait de la liste.
Les effets de la radiation de la société ou de tous les associés ou du retrait de tous les associés sont régis par les dispositions des articles R. 814-100 à R. 814-108.
Article R814-94
A la diligence de la Commission nationale d'inscription et de discipline des administrateurs judiciaires ou de la Commission nationale d'inscription et de discipline des mandataires judiciaires, une expédition de la décision passée en force de chose jugée prononçant la radiation ou le retrait de la liste de la société ou de tous les associés exerçant en son sein est versée au dossier ouvert au nom de la société au greffe chargé de la tenue du registre du commerce et des sociétés.
Article R814-95
Les fonctions d'administrateur judiciaire associé sont assimilées à celles d'administrateur judiciaire pour la collation du titre d'administrateur judiciaire honoraire.
Les fonctions de mandataire judiciaire associé sont assimilées à celles de mandataire judiciaire pour la collation du titre de mandataire judiciaire honoraire.
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Paragraphe 4 : De la nullité, de la dissolution et de la liquidation de la société.
Article R814-96
La nullité de la société ne porte pas atteinte à la validité des actes professionnels accomplis par les administrateurs judiciaires ou les mandataires judiciaires associés avant la date où cette nullité est devenue définitive.
Article R814-97
A la diligence de la Commission nationale d'inscription et de discipline des administrateurs judiciaires ou de la Commission nationale d'inscription et de discipline des mandataires judiciaires, toute décision judiciaire passée en force de chose jugée prononçant la nullité de la société fait l'objet d'un dépôt d'une de ses expéditions au dossier ouvert au nom de la société au greffe chargé de la tenue du registre du commerce et des sociétés.
Article R814-98
La nullité de la société n'est opposable aux tiers qu'à compter de l'accomplissement des formalités de publicité prévues par la section 1 du chapitre III du titre II du livre I relative au registre du commerce et des sociétés.
Article R814-99
La société prend fin dans les cas prévus à l'article 1844-7 du code civil. La dissolution anticipée prévue au 4° de cet article est décidée dans les conditions de majorité requises pour les modifications des statuts.
En outre, la société est dissoute de plein droit :
1° Par le décès du dernier survivant des associés, sans qu'à cette date les parts sociales ou les titres de capital des autres associés aient été cédés à des tiers ;
2° Par la décision devenue définitive qui prononce la radiation ou le retrait de la liste de la société ou de tous les associés en application de l'article L. 811-6, de l'article L. 811-12, de l'article L.
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812-4 ou de l'article L. 812-9. La décision qui prononce la radiation ou le retrait de la liste constate la dissolution de la société et ordonne sa liquidation.
Article R814-100
La dissolution de la société entraîne sa liquidation, hormis les cas prévus à l'article 1844-4 du code civil et au premier alinéa de l'article L. 236-3.
Article R814-101
La dissolution de la société n'est opposable aux tiers qu'à compter de l'accomplissement des formalités de publicité prévues par la section 1 du chapitre III du titre II du livre I relative au registre du commerce et des sociétés.
Article R814-102
La liquidation est régie par les statuts, sous réserve des dispositions du code civil et de celles du livre II du présent code et du présent paragraphe.
Article R814-103
Le liquidateur est choisi parmi les associés ou, à défaut, parmi les administrateurs judiciaires ou les mandataires judiciaires inscrits, selon que la société exerce l'une ou l'autre de ces professions.
En aucun cas, les fonctions de liquidateur ne peuvent être confiées à une personne contre laquelle a été prononcée une sanction disciplinaire, une mesure de retrait ou de suspension provisoire.
Plusieurs liquidateurs peuvent être désignés.
Le liquidateur désigné remplit les fonctions de l'administrateur provisoire.
Article R814-104
La décision judiciaire ou la décision de l'assemblée des associés qui nomme le liquidateur fixe sa rémunération.
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Article R814-105
Le liquidateur peut être remplacé pour cause d'empêchement ou tout motif grave, à la demande soit du liquidateur lui-même, soit des associés ou de leurs ayants droit, par ordonnance du président du tribunal de grande instance dans le ressort duquel est situé le siège social.
Le président statue en la forme des référés.
Article R814-106
Le liquidateur ne peut entrer en fonctions avant d'avoir accompli les formalités de publicité au registre du commerce et des sociétés et informé de la dissolution de la société la commission qui a procédé à l'inscription de celle-ci, en joignant copie de l'acte qui l'a nommé.
Article R814-107
Le liquidateur ne peut exercer les mandats de justice confiés à la société que s'il y est habilité par la juridiction qui les a décernés.
Article R814-108
Le liquidateur informe la Commission nationale des administrateurs judiciaires ou la Commission nationale des mandataires judiciaires de la clôture de la liquidation.
Sous-section 2 : Dispositions applicables aux sociétés civiles professionnelles
Paragraphe 1 : De la constitution.
Article R814-109
Deux ou plusieurs personnes physiques inscrites sur la liste nationale prévue à l'article L. 811-2 ou sur la liste nationale prévue à l'article L. 812-2 peuvent constituer entre elles une société civile professionnelle pour l'exercice en commun de leur profession d'administrateur judiciaire ou de
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mandataire judiciaire.
La même faculté appartient aux personnes remplissant les conditions pour être inscrites sur cette liste, sous réserve que chacune d'elles obtienne son inscription au plus tard en même temps que celle de la société.
Ces sociétés reçoivent l'appellation de sociétés civiles professionnelles d'administrateurs judiciaires ou de mandataires judiciaires.
Chaque associé a la qualité d'administrateur judiciaire associé, ou de mandataire judiciaire associé.
Article R814-110
Les sociétés civiles professionnelles d'administrateurs judiciaires et sociétés civiles professionnelles de mandataires judiciaires sont régies par les dispositions du décret n° 78-704 du 3 juillet 1978 relatif à l'application de la loi n° 78-9 du 4 janvier 1978 modifiant le titre IX du livre III du code civil, sous réserve des dispositions de la présente section.
Article R814-111
Les statuts satisfont aux prescriptions des articles 8, 11, 14, 15, 19, 20 et 24 de la loi n° 66-879 du 29 novembre 1966. Ils indiquent en outre :
1° Les nom, prénoms et domicile de chaque associé ;
2° La durée pour laquelle la société est constituée ;
3° L'adresse du siège social ;
4° La nature et l'évaluation distincte de chacun des apports faits par les associés ;
5° Le montant du capital social, le montant, le nombre et la répartition des parts sociales représentatives de ce capital ;
6° Le nombre des parts d'intérêts attribuées à chaque apporteur en industrie ;
7° L'affirmation de la libération totale ou partielle, selon le cas, des apports concourant à la formation du capital social.
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Article R814-112
Le siège social de la société civile professionnelle est fixé au domicile professionnel commun à plusieurs ou à tous les associés ou au domicile professionnel de l'un d'eux.
Article R814-113
La Commission nationale des administrateurs judiciaires ou la Commission nationale des mandataires judiciaires peut solliciter d'un commissaire aux comptes mentionné à l'article R. 814-29 un avis sur la valeur des apports en nature.
Article R814-114
Les parts sociales ne peuvent être données en nantissement.
Leur montant nominal ne peut être inférieur à 150 euros.
Article R814-115
Les parts d'intérêts attribuées aux apporteurs en industrie sont incessibles. Elles sont annulées lorsque leur titulaire perd la qualité d'associé pour quelque cause que ce soit.
Article R814-116
Les parts sociales correspondant à des apports en numéraire doivent être libérées, lors de la souscription, de la moitié au moins de leur valeur nominale.
La libération du surplus intervient, en une ou plusieurs fois, soit aux dates prévues par les statuts, soit par décision de l'assemblée des associés et au plus tard dans le délai de deux ans à compter de l'inscription de la société sur la liste.
Dans les huit jours de leur réception, les fonds provenant de la libération des apports en numéraire sont déposés, pour le compte de la société, à la Caisse des dépôts et consignations, chez un notaire ou dans un établissement de crédit.
Le retrait de ces fonds est effectué par le mandataire de la société sur la justification de l'inscription
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de celle-ci sur la liste des administrateurs judiciaires ou la liste des mandataires judiciaires.
Article R814-117
La société ou son liquidateur est dispensé d'insérer dans un journal habilité à recevoir des annonces légales les avis et actes prévus aux articles 22, 24, 26, 27 et 29 du décret n° 78-704 du 3 juillet 1978.
Paragraphe 2 : De l'organisation et du fonctionnement.
Article R814-118
Les décisions qui excèdent les pouvoirs du ou des gérants sont prises par les associés réunis en assemblée générale.
L'assemblée est réunie au moins une fois par an. Elle est également réunie lorsqu'un ou plusieurs associés, représentant au moins la moitié en nombre de ceux-ci ou le quart du capital, en font la demande au gérant en indiquant l'ordre du jour.
A défaut de dispositions contraires des statuts, les convocations sont effectuées conformément à l'article 40 du décret n° 78-704 du 3 juillet 1978.
Article R814-119
Les procès-verbaux des délibérations des associés sont établis sur un registre spécial préalablement coté et paraphé par le greffier chargé de la tenue du registre du commerce et des sociétés où est immatriculée la société. Le registre est conservé au siège social. Il peut être consulté par tout associé.
Article R814-120
Chaque associé dispose d'un nombre de voix égal quel que soit le nombre de parts qu'il possède.
Un associé peut donner mandat écrit à un autre associé de le représenter à l'assemblée. Toutefois, un associé ne peut être porteur de plus de deux mandats.
L'assemblée ne délibère valablement que si les trois quarts au moins des associés sont présents ou représentés. Si ce quorum n'est pas atteint, les associés sont convoqués une nouvelle fois et
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l'assemblée délibère valablement si le tiers des associés au moins est présent ou représenté.
Article R814-121
Sous réserve des dispositions de l'article 19 de la loi n° 66-879 du 29 novembre 1966 et de celles des articles R. 814-99, R. 814-122, R. 814-124, R. 814-130, R. 814-131, R. 814-140, les décisions sont prises à la majorité des voix des associés présents ou représentés.
Dans tous les cas, les statuts peuvent prévoir, pour certaines décisions, une majorité qualifiée ou l'unanimité des associés.
Article R814-122
La modification des statuts, y compris la prorogation de la société, est décidée à la majorité des trois quarts des voix de l'ensemble des associés.
L'augmentation des engagements des associés ne peut être décidée qu'à l'unanimité.
Article R814-123
La répartition des bénéfices a lieu conformément aux statuts.
Toutefois, la rémunération des apports en capital ne peut excéder les deux tiers des bénéfices.
Article R814-124
Sauf stipulation contraire des statuts, les parts sociales peuvent être librement cédées à un associé.
Article R814-125
Lorsqu'un associé décide de céder tout ou partie de ses parts à un tiers, le projet de cession est notifié à la société et à chaque associé par lettre recommandée avec demande d'avis de réception.
Dans les deux mois de la notification qui lui est faite du projet de cession, la société fait connaître, dans les mêmes formes, son consentement ou son refus. Le silence gardé par la société pendant ce délai vaut consentement implicite à la cession.
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Article R814-126
Si la société refuse de consentir à la cession, elle est tenue, dans les six mois de la notification de son refus, de notifier à l'associé par lettre recommandée avec demande d'avis de réception un projet de cession ou de rachat de ses parts qui implique engagement du cessionnaire ou de la société de se porter acquéreur.
Si le prix proposé pour la cession ou le rachat n'est pas accepté par le cédant, il est fixé conformément aux dispositions de l'article 1843-4 du code civil.
Si l'associé cédant refuse de signer l'acte portant cession de ses parts au prix ainsi fixé, il est passé outre à ce refus deux mois après la sommation qui lui est adressée par lettre recommandée avec demande d'avis de réception par la société et qui est demeurée infructueuse.
Si la cession porte sur la totalité des parts sociales détenues par l'associé, celui-ci perd sa qualité d'associé à l'expiration du délai prévu à l'alinéa précédent.
Le prix de cession des parts est consigné à la diligence du cessionnaire à la Caisse des dépôts et consignations.
Article R814-127
Dans le cas prévu au troisième alinéa de l'article R. 814-126, la publicité de la cession des parts sociales est accomplie par le dépôt au registre du commerce et des sociétés de deux copies certifiées conformes de la sommation adressée au cédant accompagnées de la justification de la notification ou de la signification de cette sommation.
Article R814-128
Si à l'expiration du délai prévu à l'article R. 814-80 aucune cession n'est intervenue, la société procède à la cession ou au rachat des parts dans les conditions prévues aux deuxième et troisième alinéas de l'article R. 814-135.
Article R814-129
Sous réserve des règles de protection et de représentation des incapables, les dispositions des articles R. 814-80 et R. 814-128 sont applicables à la cession des parts sociales de l'associé frappé d'interdiction légale ou placé sous le régime de la tutelle.
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Article R814-130
Le délai prévu au deuxième alinéa de l'article 24 de la loi n° 66-879 du 29 novembre 1966 pour la cession des parts de l'associé décédé est fixé à un an à compter de la date du décès.
Il peut être prorogé une fois pour une durée d'un an par accord intervenu entre les ayants droit de l'associé décédé et la société, donné dans les conditions prévues pour la cession des parts sociales par le premier alinéa de l'article 19 de la même loi.
Article R814-131
Toute demande d'un ou plusieurs ayants droit d'un associé décédé tendant, par application du deuxième alinéa de l'article 24 de la loi n° 66-879 du 29 novembre 1966, à l'attribution préférentielle à leur profit des parts sociales de leur auteur est notifiée à la société et à chacun des associés par lettre recommandée avec demande d'avis de réception. En cas de désaccord, la valeur des droits sociaux est fixée dans les conditions prévues par l'article 1843-4 du code civil.
Article R814-132
Si, à l'expiration du délai prévu à l'article R. 814-130, les ayants droit de l'associé décédé n'ont pas exercé la faculté de céder les parts sociales de leur auteur et si aucun consentement préalable à l'attribution préférentielle n'a été donné par la société, celle-ci dispose d'une année pour acquérir elle-même, ou faire acquérir par un ou plusieurs associés ou par un tiers, les parts sociales de l'associé décédé.
Le cas échéant, la procédure prévue par les deuxième, troisième et cinquième alinéas de l'article R. 814-126 est applicable.
Article R814-133
La cession de parts sociales est rendue opposable à la société et aux tiers dans les conditions prévues par l'article 1865 du code civil.
Article R814-134
Si les réserves constituées au moyen de bénéfices non distribués ou de plus-values d'actif dues à l'industrie des associés le permettent, il est procédé périodiquement, dans les conditions prévues aux statuts, à l'augmentation du capital social. Les parts sociales ainsi créées sont attribuées aux
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associés, y compris à ceux qui n'ont apporté que leur industrie, selon les critères de répartition des bénéfices fixés par l'article R. 814-123.
L'augmentation du capital social ne peut intervenir avant la libération totale des parts sociales correspondant à des apports en numéraire.
Article R814-135
Lorsqu'un associé entend se retirer de la société en application de l'article 21 de la loi n° 66-879 du 29 novembre 1966, il notifie sa décision à la société par lettre recommandée avec demande d'avis de réception.
Dans les six mois de cette notification, la société est tenue de notifier à l'associé, dans les mêmes formes, soit un projet de cession de ses parts à un ou plusieurs associés ou à un tiers inscrit, selon le cas, sur la liste des administrateurs judiciaires ou sur la liste des mandataires judiciaires sur laquelle la société est inscrite ou remplissant les conditions pour y être inscrit, soit un projet de rachat de ces parts par la société. Cette notification implique un engagement du cessionnaire ou de la société de se porter acquéreur.
Le cas échéant, il est fait application des deuxième, troisième, quatrième et cinquième alinéas de l'article R. 814-126.
Article R814-136
Le retrait d'un associé qui a apporté exclusivement son industrie est notifié à la société par lettre recommandée avec demande d'avis de réception. Il prend effet à la date que l'associé indique ou, à défaut, à celle de cette notification.
Toutefois, les statuts peuvent prévoir que le retrait ne prendra effet qu'à l'expiration d'un délai, sans que celui-ci puisse excéder six mois à compter de la notification faite par l'associé.
Article R814-137
L'associé titulaire de parts sociales peut, à la condition d'en informer la société par lettre recommandée avec demande d'avis de réception, cesser l'activité professionnelle qu'il exerce au sein de cette société avant la fin de la procédure de cession ou de rachat de ses parts. Il respecte, le cas échéant, le délai fixé par les statuts, sans que celui-ci puisse excéder six mois à compter de la notification de la cessation d'activité.
Article R814-138
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L'associé perd, à compter de sa cessation d'activité, les droits attachés à sa qualité d'associé, à l'exception toutefois des rémunérations afférentes aux apports en capital et de sa part éventuelle dans le capital, les réserves et les plus-values d'actif ; il cesse à la même date d'être soumis aux incompatibilités et interdictions attachées à sa qualité d'associé.
Article R814-139
La société peut faire l'objet de poursuites disciplinaires indépendamment de celles qui seraient intentées contre les associés.
Article R814-140
Tout associé qui fait l'objet d'une mesure disciplinaire définitive comportant une sanction égale ou supérieure à trois mois d'interdiction peut être contraint, à l'unanimité des autres associés, de se retirer de la société.
L'associé qui fait l'objet d'une suspension provisoire en application de l'article L. 811-13 ou L. 814-4 peut, à l'expiration d'un délai d'un an à compter de la date de la décision de suspension, s'il n'a pas été mis fin à celle-ci, être contraint de se retirer de la société suivant les modalités mentionnées à l'alinéa précédent.
Les associés exclus perdent du jour où la décision d'exclusion leur a été notifiée les droits attachés à la qualité d'associé, à l'exception des rémunérations afférentes à leurs apports en capital.
Ses parts sociales sont cédées dans les conditions prévues aux articles R. 814-80 et R. 814-128.
Article R814-141
L'associé interdit temporairement ou suspendu provisoirement ne peut exercer aucune activité professionnelle pendant la durée de la mesure d'interdiction ou de suspension, mais conserve pendant le même temps sa qualité d'associé avec tous les droits et obligations qui en découlent, à l'exclusion de sa vocation aux bénéfices professionnels.
Paragraphe 3 : De la nullité, de la dissolution et de la liquidation.
Article R814-142
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La dissolution anticipée prévue au 4° de l'article 1844-7 du code civil est décidée à la majorité des trois quarts des voix de l'ensemble des associés.
Article R814-143
En dehors des cas prévus au troisième alinéa de l'article R. 814-99, la société civile professionnelle est dissoute de plein droit par la notification à la société des demandes simultanées de retrait des associés faites en application de l'article 21 de la loi n° 66-879 du 29 novembre 1966 ou, en cas de demandes successives, par la dernière d'entre elles, sans qu'à cette date les parts sociales des autres associés aient été cédées à des tiers.
Article R814-144
Dans le cas prévu par le second alinéa de l'article 37 de la loi n° 66-879 du 29 novembre 1966, l'actif net de la société subsistant après extinction du passif et remboursement du capital est réparti entre les associés au prorata des parts détenues par chacun d'eux, y compris les parts correspondant aux apports en industrie.
Sous-section 3 : Dispositions applicables aux sociétés d'exercice libéral.
Article R814-145
Des administrateurs judiciaires ou des mandataires judiciaires peuvent constituer entre eux, et dans les conditions prévues à l'article 5 de la loi n° 90-1258 du 31 décembre 1990 relative à l'exercice sous forme de sociétés des professions libérales soumises à un statut législatif ou réglementaire ou dont le titre est protégé, avec les personnes mentionnées à cet article, une société d'exercice libéral.
Article R814-146
Les sociétés d'exercice libéral d'administrateurs judiciaires ou de mandataires judiciaires à responsabilité limitée, à forme anonyme et en commandite par actions sont régies par les dispositions du livre II, sous réserve des dispositions de la présente section.
Article R814-147
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La commission nationale d'inscription et de discipline des administrateurs judiciaires ou la commission nationale d'inscription et de discipline des mandataires judiciaires est informée des modifications apportées à la liste des associés mentionnés au deuxième alinéa de l'article 5 de la loi n° 90-1258 du 31 décembre 1990 et au montant de leur participation au capital.
Article R814-148
La société est dispensée de procéder aux formalités de publicité prévues aux articles R. 210-16 et suivants.
Article R814-149
Lorsque le consentement de la société est acquis dans les conditions prévues par les articles L. 223-14 et L. 228-24 et 10 de la loi n° 90-1258 du 31 décembre 1990, le cessionnaire demande à la commission nationale d'inscription et de discipline des administrateurs judiciaires ou à la commission nationale d'inscription et de discipline des mandataires judiciaires, par lettre recommandée avec demande d'avis de réception ou par remise contre récépissé, son inscription sur la liste mentionnée au deuxième alinéa de l'article R. 814-87.
Sa demande est accompagnée, à peine d'irrecevabilité, d'une attestation du transfert sur les registres de titres de la société ou de l'acte de cession des titres de capital ou des parts sociales ainsi que de toutes pièces justificatives, notamment de celles qui sont exigées des personnes demandant leur inscription sur la liste.
Article R814-150
Sous réserve des règles de protection et de représentation des incapables, les dispositions de l'article R. 814-80 sont applicables à la cession des titres de capital ou parts sociales de l'associé placé sous le régime de la tutelle, s'il ne veut ou ne peut bénéficier des dispositions du 2° du deuxième alinéa de l'article 5 de la loi n° 90-1258 du 31 décembre 1990, ou de l'associé frappé d'interdiction légale.
Article R814-151
La société ne peut faire l'objet de poursuites disciplinaires indépendamment de celles qui seraient intentées contre les associés exerçant en son sein.
Article R814-152
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Tout associé exerçant au sein de la société, qui a fait l'objet d'une sanction disciplinaire définitive égale ou supérieure à trois mois d'interdiction d'exercice de sa profession ou d'une condamnation pénale définitive à une peine d'emprisonnement égale ou supérieure à trois mois peut être contraint, à l'unanimité des autres associés exerçant au sein de la société, de se retirer de celle-ci.
Ses titres de capital ou parts sociales sont cédés dans les conditions prévues aux articles R. 814-74, R. 814-76 et R. 814-149.
Article R814-153
L'associé interdit de ses fonctions n'est pas de ce seul fait privé de sa qualité d'associé. Il conserve tous les droits et obligations qui en découlent.
Article R814-154
L'associé provisoirement suspendu exerçant au sein de la société conserve, pendant la durée de sa suspension, sa qualité d'associé avec tous les droits et obligations qui en découlent. Toutefois, ses revenus liés à l'exercice professionnel sont réduits de moitié, l'autre moitié étant attribuée par parts égales aux administrateurs provisoires associés ou non ou, s'il n'est pas commis d'administrateur provisoire, à ceux des associés exerçant au sein de la société qui n'ont pas fait l'objet d'une suspension provisoire de leurs fonctions.
Sous-section 4 : Dispositions applicables aux sociétés en participation.
Article R814-155
Les sociétés en participation prévues par l'article 22 de la loi n° 90-1258 du 31 décembre 1990 reçoivent l'appellation de sociétés en participation d'administrateurs judiciaires ou de mandataires judiciaires.
Leur constitution fait l'objet de l'insertion d'un avis dans le Bulletin officiel des annonces civiles et commerciales.
L'avis contient la dénomination sociale et la liste des associés.
Article R814-156
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Dans la quinzaine de la publication, une copie de cet avis et un exemplaire de la convention qui fonde la société en participation sont remis contre récépissé ou expédiés par lettre recommandée avec demande d'avis de réception à la commission nationale d'inscription et de discipline des administrateurs judiciaires ou à la commission nationale d'inscription et de discipline des mandataires judiciaires qui peut, dans un délai d'un mois, mettre en demeure les associés, par lettre recommandée avec demande d'avis de réception, de modifier la convention pour la mettre en conformité avec les règles applicables à la profession.
Article R814-157
Le retrait ou l'admission d'un associé donne lieu à la publication mentionnée aux deuxième et troisième alinéas de l'article R. 814-155 et, pour le nouvel associé, les dispositions des articles R. 814-66 et R. 814-156 sont applicables.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Partie réglementaire
LIVRE VIII : De quelques professions réglementées.
TITRE II : Des commissaires aux comptes.
Chapitre Ier : De l'organisation et du contrôle de la profession
Section 1 : Du Haut Conseil du commissariat aux comptes
Sous-section 1 : De l'organisation.
Article R821-1
Le secrétaire général du haut conseil et le secrétaire général adjoint sont nommés par le garde des sceaux, ministre de la justice. Le secrétaire général est chargé, sous l'autorité du président, de la gestion administrative du haut conseil, de la préparation et du suivi de ses travaux ainsi que de toute question qui pourrait lui être confiée. Il assure la direction des contrôleurs.A cette fin, il est assisté d'un directeur placé sous son autorité et recruté par le haut conseil après avis conforme de son collège. Il est chargé de l'examen des documents retraçant les opérations de contrôle auxquelles la Compagnie nationale des commissaires aux comptes et les compagnies régionales ont procédé en application du b de l'article L. 821-7 et, lorsqu'elles ont été effectuées à la demande du haut conseil, du c du même article. Il peut participer à la mise en œuvre de ces contrôles et émettre des recommandations. Il est en outre chargé de l'examen de toute question portant sur des cas individuels dont le haut conseil serait saisi. Lorsque l'examen des documents ou des cas individuels mentionnés aux alinéas précédents fait apparaître une question de principe justifiant un avis du haut conseil, ou lorsque sa participation aux opérations de contrôle mentionnées au troisième alinéa fait apparaître une question de cette nature, le secrétaire général saisit le haut conseil après avoir instruit le dossier qu'il présente sous une forme anonyme.
Chaque année, le secrétaire général présente au Haut Conseil un rapport sur les contrôles auxquels il a été procédé en application du b de l'article L. 821-7. Il rend compte de ces contrôles en garantissant l'anonymat des situations évoquées.
Il peut saisir à toutes fins le procureur général compétent. Il peut saisir la Compagnie nationale des commissaires aux comptes de toute demande d'information complémentaire.
Hors le cas de la représentation en justice, qui appartient au président du haut conseil, il représente le haut conseil dans tous les actes de la vie civile.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Article R821-1-1
Dans l'exercice de ses missions, le secrétaire général est assisté d'un secrétaire général adjoint, nommé par arrêté du garde des sceaux, ministre de la justice, et de services placés sous sa direction. Il peut faire appel à tout sachant ou expert.
Le secrétaire général a autorité sur le personnel. Pour l'application du code du travail, il exerce les compétences du chef d'entreprise.
Il peut déléguer sa signature au secrétaire général adjoint en toute matière. Il peut également déléguer sa signature à tout autre agent des services du haut conseil, dans des matières et des limites qu'il détermine.
Article R821-1-2
Les emplois civils permanents du haut conseil sont occupés par :
-des magistrats, des fonctionnaires, détachés ou mis à disposition contre remboursement, dans les conditions prévues par leurs statuts respectifs ;
-des militaires affectés, en position d'activité dans les conditions prévues au 2° de l'article L. 4138-2 du code de la défense ;
-des agents non titulaires de droit public recrutés par contrat soumis aux dispositions de la loi n° 84-16 du 11 janvier 1984 portant dispositions statutaires relatives à la fonction publique de l'Etat et à celles du décret n° 86-83 du 17 janvier 1986 relatif aux dispositions générales applicables aux agents non titulaires de l'Etat pris pour l'application de l'article 7 de la même loi, à l'exception de ses articles 1er, 1-2, 4 à 8, 28, 28-1 et 29.
Les magistrats et les fonctionnaires sont détachés ou mis à disposition pour une durée de trois ans renouvelable. Les militaires sont affectés pour cette même durée renouvelable dans les mêmes conditions.
Le règlement des services précise les conditions d'emploi des personnels du haut conseil.
Le haut conseil peut mettre à disposition des agents contractuels de droit public et des salariés de droit privé auprès d'un autre employeur public, d'un organisme communautaire ou international, ou se voir mettre à disposition du personnel par un autre employeur public. Ces mises à disposition font l'objet d'une convention conclue entre le haut conseil et l'autre employeur.
Article R821-2
Des rapporteurs et des secrétaires sont nommés par arrêté du garde des sceaux, ministre de la justice, auprès du Haut Conseil lorsque celui-ci connaît des décisions des commissions régionales d'inscription ou siège en appel des décisions des chambres régionales de discipline.
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Article R821-3
Les fonctions de commissaire du Gouvernement sont assurées par le directeur des affaires civiles et du sceau ou son représentant.
Article R821-4
Tout membre du Haut Conseil du commissariat aux comptes informe le président :
1° Des fonctions économiques ou financières qu'il a exercées au cours des deux années précédant sa nomination, qu'il exerce ou qu'il s'apprête à exercer ;
2° De tout mandat de direction, d'administration, de surveillance ou de contrôle qu'il a détenu au sein d'une personne morale au cours des deux années précédant sa nomination, qu'il détient ou qu'il s'apprête à détenir.
Aucun membre ne peut délibérer dans une affaire en lien avec les fonctions ou mandats mentionnés aux 1° et 2°.
Les fonctions de membres sont incompatibles avec toute fonction au sein de la Compagnie nationale des commissaires aux comptes ou d'une compagnie régionale.
En cas de manquement grave manifestement incompatible avec l'exercice de ses fonctions commis par un membre du Haut Conseil, l'intéressé, après avoir été invité à présenter ses observations, est mis en demeure de régulariser sa situation, faute de quoi il est déclaré démissionnaire d'office par le Haut Conseil statuant, à bulletin secret, à la majorité des membres le composant.
Article R821-5
Le Haut Conseil du commissariat aux comptes adopte son règlement intérieur, qui fixe notamment les conditions de création et de fonctionnement des commissions consultatives spécialisées prévues à l'article L. 821-3. Ce règlement arrête en outre les modalités de règlement des conflits d'intérêt ponctuels qui peuvent affecter ses membres et précise les conditions dans lesquelles le Haut Conseil sollicite le concours de la Compagnie nationale des commissaires aux comptes.
Le règlement intérieur est homologué par arrêté du garde des sceaux, ministre de la justice, et publié au Journal officiel de la République française.
Sous-section 2 : Du fonctionnement.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Article R821-6
Sous réserve des règles particulières relatives à l'inscription et à la discipline et à l'exclusion des projets de normes d'exercice professionnel élaborés par la Compagnie nationale des commissaires aux comptes, à l'égard desquels il ne peut donner son avis que sur saisine du garde des sceaux, ministre de la justice, conformément aux dispositions de l'article L. 821-2, le Haut Conseil du commissariat aux comptes peut être saisi de toute question entrant dans ses compétences définies à l'article L. 821-1, par le garde des sceaux, ministre de la justice, le ministre chargé de l'économie, le procureur général près la Cour des comptes, le président de la Compagnie nationale des commissaires aux comptes ou l'Autorité des marchés financiers. Il peut également se saisir d'office des mêmes questions.
Sous réserve de ce qui est dit à l'alinéa précédent concernant les projets de normes d'exercice professionnel élaborés par la Compagnie nationale des commissaires aux comptes, il peut être saisi des questions mentionnées aux deuxième, troisième et cinquième alinéas dudit article L. 821-1 par les présidents des compagnies régionales des commissaires aux comptes, par tout commissaire aux comptes ou par la personne qu'il contrôle.
Les saisines et demandes d'avis adressées au Haut Conseil sont communiquées sans délai au commissaire du Gouvernement.
Article R821-7
Le Haut Conseil du commissariat aux comptes se réunit sur convocation de son président, à l'initiative de celui-ci ou à la demande de trois de ses membres ou du commissaire du Gouvernement.
Il se réunit au moins une fois par trimestre.
Sous réserve des règles relatives à l'inscription et à la discipline, le délai de convocation est de quinze jours et peut être ramené à huit jours en cas d'urgence.
Article R821-8
L'ordre du jour du Haut Conseil est fixé par le président, en tenant compte, le cas échéant, de toute demande d'inscription à l'ordre du jour d'une question présentée par le commissaire du Gouvernement ou trois des membres.
Article R821-9
Le Haut Conseil ne peut valablement délibérer que si au moins huit de ses membres sont présents.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Lorsque le quorum n'est pas atteint, le Haut Conseil délibère valablement dans un délai minimal de huit jours quel que soit le nombre des membres présents après une nouvelle convocation portant le même ordre du jour.
Article R821-10
Les délibérations du Haut Conseil sont notifiées au commissaire du Gouvernement.
Celui-ci peut, en application de l'article L. 821-4, demander une seconde délibération, par décision motivée, dans un délai de cinq jours ouvrables à compter de la notification.
Article R821-11
Lorsque, en application du sixième alinéa de l'article L. 821-1, le Haut Conseil du commissariat aux comptes est saisi par le garde des sceaux, ministre de la justice, d'une demande d'avis portant sur les normes d'exercice professionnel, cette demande est accompagnée, le cas échéant, de l'avis recueilli préalablement auprès des institutions et organismes mentionnés à l'article L. 821-2. Le Haut Conseil rend son avis dans un délai de deux mois. En cas d'urgence, à la demande du ministre, ce délai peut être ramené à quinze jours.
Afin de promouvoir les bonnes pratiques professionnelles qu'il a identifiées, le Haut Conseil publie, notamment par voie électronique, les avis relatifs à celles-ci.
Il publie dans les mêmes conditions les orientations et le cadre des contrôles périodiques qu'il définit, ainsi que les appréciations qui lui incombent en application du dernier alinéa de l'article L. 822-11.
Article R821-12
Le Haut Conseil du commissariat aux comptes se prononce sur les inscriptions sur la liste des commissaires aux comptes dans les conditions prévues à la section 1 du chapitre II du présent titre.
Il statue en matière disciplinaire dans les conditions prévues à la sous-section 2 de la section 1 du chapitre II du présent titre.
Article R821-13
Le Haut Conseil rend compte de son activité dans un rapport annuel, qui retrace notamment le résultat des contrôles des commissaires aux comptes réalisés dans l'année. Le cas échéant, les
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
observations du commissaire du Gouvernement sont annexées à ce rapport.
Le rapport est adressé au garde des sceaux, ministre de la justice. Il est publié sur le site internet du haut conseil.
Article R821-14
I. - Le président du haut conseil reçoit une indemnité forfaitaire de fonction cumulable avec sa rémunération de membre de la Cour de cassation ou, lorsqu'il s'agit d'un ancien membre de la Cour de cassation, avec les droits et pensions auxquels il peut prétendre.
Les membres du haut conseil autres que le président reçoivent une indemnité forfaitaire de fonction.
Le secrétaire général et le secrétaire général adjoint reçoivent, en sus de leur rémunération fixée contractuellement avec le haut conseil, une indemnité forfaitaire de fonction.
Les montants des indemnités mentionnées au I du présent article sont fixés par arrêté du garde des sceaux, ministre de la justice. Ces montants sont publiés au Journal officiel de la République française.
II. - Les membres du haut conseil, le secrétaire général, le secrétaire général adjoint, les experts ainsi que les rapporteurs et les secrétaires chargés des dossiers d'inscription et de discipline ont droit à l'indemnisation des frais et sujétions auxquels les expose l'exercice de leurs fonctions, dans les conditions prévues par le règlement intérieur.
Le haut conseil peut fixer pour les membres du collège autres que le président une indemnité complémentaire au titre de leur participation aux travaux des commissions spécialisées.
Article R821-14-1
Le haut conseil délibère sur :
1° Le budget annuel et ses modifications en cours d'année ;
2° Le compte financier et l'affectation des résultats ;
3° Le règlement comptable et financier, qui est transmis au garde des sceaux, ministre de la justice, et au ministre chargé du budget ;
4° Les conditions générales de recrutement, d'emploi et de rémunération du personnel ;
5° Les conditions générales de passation des conventions et marchés ;
6° Les conditions générales d'emploi des fonds disponibles, de placement des réserves ;
7° Les acquisitions, échanges et aliénations de biens immobiliers ;
8° Les emprunts ;
9° Les transactions au-delà d'un montant qu'il fixe, sur proposition du secrétaire général ;
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10° Les dons et legs ;
11° Le règlement intérieur prévu à l'article R. 821-5.
Article R821-14-2
Le secrétaire général est ordonnateur des recettes et des dépenses du haut conseil.
Dans le cadre des règles générales fixées par le haut conseil, il a qualité pour :
1° Liquider et ordonnancer les recettes et les dépenses ;
2° Tenir la comptabilité des engagements de dépenses, dans les conditions définies par le règlement comptable et financier ;
3° Gérer les disponibilités et décider des placements ;
4° Passer au nom du haut conseil tous conventions et marchés et décider des prises ou cessions à bail de biens immobiliers ;
5° Engager, gérer et licencier le personnel à l'égard duquel il exerce la compétence de l'employeur et fixer les rémunérations et les indemnités ;
6° Fixer le régime des indemnités de mission et de déplacement des personnels du haut conseil.
Dans les limites fixées au 9° de l'article R. 821-14-1, le secrétaire général est autorisé à transiger au nom du haut conseil dans les conditions fixées par les articles 2044 à 2058 du code civil.
Article R821-14-3
L'exercice budgétaire et comptable débute le 1er janvier et s'achève le 31 décembre.
Le haut conseil arrête le budget chaque année avant le début de l'exercice. Le budget comporte la prévision des recettes attendues et des dépenses nécessitées par l'exercice des missions confiées au haut conseil. Il peut être modifié en cours d'année. Les crédits inscrits au budget n'ont pas un caractère limitatif.
Les délibérations du haut conseil relatives au budget et à ses modifications sont exécutoires de plein droit à l'issue du délai dont dispose le commissaire du Gouvernement pour demander une seconde délibération.
Article R821-14-4
Le haut conseil est doté d'un agent comptable nommé par arrêté conjoint du garde des sceaux, ministre de la justice, et du ministre chargé du budget.
L'agent comptable est responsable personnellement et pécuniairement dans les conditions de
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l'article 60 de la loi n° 63-156 du 23 février 1963 de finances pour 1963 et du décret n° 2008-228 du 5 mars 2008 relatif à la constatation et à l'apurement des débets des comptables publics et assimilés.
Il est chargé :
a) De la tenue de la comptabilité du haut conseil ;
b) Du recouvrement, auprès de la Compagnie nationale des commissaires aux comptes, du reversement des droits et contributions institué à l'article L. 821-5 ;
c) Du recouvrement de toutes les autres recettes du haut conseil ;
d) Du paiement des dépenses et du maniement des fonds et des mouvements de comptes de disponibilités.
Avec l'accord du secrétaire général, l'agent comptable peut confier sous son contrôle la comptabilité analytique et la comptabilité matière aux services du haut conseil.
L'agent comptable peut nommer des mandataires qui sont agréés par le secrétaire général.
Article R821-14-5
Les comptes du haut conseil sont établis selon les règles du plan comptable général. Celui-ci peut faire l'objet d'adaptations proposées par le secrétaire général après avis du haut conseil et approuvées par le ministre chargé du budget et par le garde des sceaux, ministre de la justice.
L'agent comptable établit un compte financier au terme de chaque exercice. Le compte financier comprend le compte de résultat, le bilan, l'annexe, la balance générale des comptes à la clôture de l'exercice, le tableau de rapprochement des prévisions et des réalisations effectives et, le cas échéant, la balance des comptes spéciaux.
Le compte financier du haut conseil est préparé par l'agent comptable et soumis par le secrétaire général au haut conseil qui entend l'agent comptable. Le compte financier arrêté par le haut conseil est transmis à la Cour des comptes par le secrétaire général du haut conseil, accompagné des délibérations du haut conseil relatives au budget, à ses modifications et au compte financier, et de tous les autres documents demandés par les ministres ou par la cour, dans les quatre mois qui suivent la clôture de l'exercice.
Le rapport annuel fait une présentation du compte financier et reproduit le compte de résultat et le bilan.
Article R821-14-6
Avant le 31 octobre de chaque année, la Compagnie nationale des commissaires aux comptes informe le secrétaire général du montant prévisionnel des droits et contributions à recouvrer en application de l'article L. 821-5, pour l'année qui suit.
Elle adresse à cette fin au secrétaire général un document de synthèse faisant apparaître, outre le montant prévisionnel mentionné à l'alinéa précédent :
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a) Le nombre de personnes inscrites à cette date sur la liste de l'article L. 822-1 ;
b) Le nombre prévisionnel de missions exercées pendant l'année en cours par les personnes inscrites sur la liste de l'article L. 822-1, en indiquant celles qui sont exercées auprès de personnes ou d'entités dont les titres financiers sont admis aux négociations sur un marché réglementé, celles qui sont exercées auprès de personnes ou d'entités dont les titres financiers sont offerts au public sur un système multilatéral de négociation et celles qui sont exercées auprès de personnes ou d'entités n'entrant dans aucune de ces deux catégories ;
c) Le nombre prévisionnel de rapports de certification signés par les mêmes personnes pendant l'année en cours, ventilé selon les trois catégories mentionnées au b.
La Compagnie nationale des commissaires aux comptes communique au secrétaire général, sur sa demande et avant le 30 novembre de chaque année, les éléments justificatifs des informations contenues dans le document de synthèse.
Article R821-14-7
Avant le 30 janvier de chaque année, la Compagnie nationale des commissaires aux comptes reverse au haut conseil, à titre de provision, une somme égale au tiers du montant inscrit sur le budget arrêté par le haut conseil.
Elle reverse avant le 31 mars le solde des droits et cotisations dus, en justifiant du nombre de personnes inscrites au 1er janvier de l'année en cours sur la liste de l'article L. 822-1 et du montant définitif des droits dus au titre des rapports de certification signés l'année précédente.
Article R821-14-8
L'agent comptable est tenu de faire diligence pour assurer le recouvrement de toutes les ressources du haut conseil. Les recettes sont recouvrées par l'agent comptable soit spontanément, soit en exécution des instructions du secrétaire général. Sauf pour le reversement par la Compagnie nationale des commissaires aux comptes des droits et contributions mentionnés à l'article L. 821-5, l'agent comptable adresse aux débiteurs les factures correspondantes et reçoit leurs règlements. Tous les droits acquis au cours d'un exercice doivent être pris en compte au titre de cet exercice.
Article R821-14-9
Lorsque les créances du haut conseil n'ont pu être recouvrées à l'amiable, les poursuites sont conduites conformément aux usages du commerce ou peuvent faire l'objet d'états rendus exécutoires par le secrétaire général. Les états exécutoires peuvent être notifiés aux débiteurs par lettre recommandée avec accusé de réception. Leur recouvrement est poursuivi jusqu'à opposition devant la juridiction compétente.
Article R821-14-10
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L'agent comptable procède aux poursuites. Celles-ci peuvent, à tout moment, être suspendues sur ordre écrit du secrétaire général si la créance est l'objet d'un litige. Le secrétaire général suspend également les poursuites si, en accord avec l'agent comptable, il estime que la créance est irrécouvrable ou que l'octroi d'un délai par l'agent comptable est conforme à l'intérêt du haut conseil.
Article R821-14-11
Le secrétaire général peut décider, après l'avis conforme de l'agent comptable :
1° En cas de gêne des débiteurs, d'accorder une remise gracieuse des créances du haut conseil, sauf pour le reversement des droits et contributions institué à l'article L. 821-5 ;
2° Une admission en non-valeur des créances du haut conseil, en cas d'irrécouvrabilité avérée ou d'insolvabilité des débiteurs.
Le haut conseil fixe le montant au-delà duquel la remise mentionnée au 1° est soumise à son approbation.
Lorsque la remise gracieuse, totale ou partielle, concerne une dette de l'agent comptable, l'avis prévu par l'article 9 du décret n° 2008-228 du 5 mars 2008 relatif à la constatation et à l'apurement des débets des comptables publics et assimilés est rendu par le haut conseil.
Article R821-14-12
L'agent comptable est tenu d'exercer :
1° En matière de recettes, le contrôle :
- de l'autorisation de percevoir les recettes ;
- de la mise en recouvrement des créances et de la régularité des réductions et des annulations des ordres de recettes, dans la limite des éléments dont il dispose ;
2° En matière de dépenses, le contrôle :
- de la qualité de l'ordonnateur ou de son délégué ;
- de la disponibilité des crédits ;
- de l'exacte imputation des dépenses aux chapitres qu'elles concernent selon leur nature ou leur objet ;
- de la validité de la créance dans les conditions prévues au 4° ;
- du caractère libératoire du règlement ;
3° En matière de patrimoine, le contrôle :
- de la conservation des droits, privilèges et hypothèques ;
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- de la conservation des biens dont il tient la comptabilité matière ;
4° En ce qui concerne la validité de la créance, le contrôle :
- de la justification du service fait et de l'exactitude des calculs de liquidation ;
- de l'application des règles de prescription et de déchéance.
Article R821-14-13
L'agent comptable suspend le paiement des dépenses lorsqu'il constate, à l'occasion de l'exercice de ses contrôles, des irrégularités ou que les certifications délivrées par le secrétaire général sont inexactes. Il en informe le secrétaire général.
Lorsque l'agent comptable a suspendu le paiement des dépenses, le secrétaire général peut, par écrit et sous sa responsabilité, requérir l'agent comptable de payer.L'agent comptable défère à la réquisition et rend compte au ministre chargé du budget, qui transmet l'ordre de réquisition à la Cour des comptes.
Par dérogation aux dispositions du deuxième alinéa, l'agent comptable doit refuser de déférer à l'ordre de réquisition lorsque la suspension du paiement est motivée par :
1° L'absence de justification du service fait ;
2° Le caractère non libératoire du règlement ;
3° Le manque de fonds disponibles.
Dans les cas de refus de la réquisition, l'agent comptable rend immédiatement compte au ministre chargé du budget.
Article R821-14-14
Toutes les dépenses doivent être liquidées et ordonnancées au cours de l'exercice auquel elles se rattachent. Les dépenses du haut conseil sont réglées par l'agent comptable sur l'ordre donné par le secrétaire général ou après avoir été acceptées par ce dernier. Les ordres de dépenses sont appuyés des pièces justificatives nécessaires, et notamment des factures, mémoires, marchés, baux ou conventions.L'acceptation de la dépense revêt la forme soit d'une mention datée et signée apposée sur le mémoire, la facture ou toute autre pièce en tenant lieu, soit d'un certificat séparé d'exécution de service, l'une ou l'autre précisant que le règlement peut être valablement opéré pour la somme indiquée.
L'agent comptable peut payer sans ordonnancement préalable certaines catégories de dépenses dans les conditions prévues par le règlement comptable et financier.
Article R821-14-15
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La liste des pièces justificatives de recettes et de dépenses est préparée par l'agent comptable et proposée par le secrétaire général à l'agrément du ministre chargé du budget. En cas de perte, destruction ou vol des justifications remises à l'agent comptable, le ministre chargé du budget peut autoriser ce dernier à pourvoir à leur remplacement. Les pièces justificatives sont conservées dans les archives de l'agent comptable pendant dix ans au moins à partir de la date de clôture de l'exercice auquel elles se rapportent.
Article R821-14-16
Des régies de recettes et de dépenses peuvent être créées auprès du haut conseil par décision du secrétaire général sur avis conforme de l'agent comptable dans les conditions fixées par le décret n° 92-681 du 20 juillet 1992 relatif aux régies de recettes et aux régies d'avances des organismes publics et par le règlement comptable et financier.
Article R821-14-17
Le haut conseil dépose ses fonds au Trésor. Il peut également ouvrir des comptes auprès d'un établissement de crédit ou d'un établissement mentionné au titre Ier du livre V du code monétaire et financier. Les fonds du haut conseil peuvent donner lieu à rémunération et faire l'objet de placements selon les conditions générales définies par le haut conseil.
Article R821-14-18
Les comptes de l'agent comptable du haut conseil sont jugés directement par la Cour des comptes. Le contrôle de la gestion de l'agent comptable est également assuré par le receveur général des finances.
Article R821-14-19
Le haut conseil est soumis aux dispositions du titre II de la loi n° 91-3 du 3 janvier 1991 modifiée relative à la transparence et à la régularité des procédures de marchés et soumettant la passation de certains contrats à des règles de publicité et de mise en concurrence.
Sous-section 3 : Des relations du Haut Conseil avec ses homologues étrangers.
Article R821-15
Le Haut Conseil du commissariat aux comptes entretient des relations régulières, au plan communautaire et international, avec ses homologues étrangers.
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Article R821-16
Lorsque, dans le cadre de la coopération avec les autorités des autres Etats membres de la Communauté européenne exerçant des compétences analogues aux siennes, le Haut Conseil est saisi par l'une de ces autorités d'une demande d'information, de documents ou d'assistance, son président prend sans délai les mesures nécessaires à la collecte des informations et documents ou à la réalisation des opérations de contrôle ou d'inspection qui sont l'objet de la demande.
Sous réserve des dispositions de l'article R. 821-17, les éléments recueillis sont communiqués sans délai à l'autorité requérante.
En cas d'empêchement, le président du Haut Conseil en informe sans délai l'autorité requérante, en précisant la nature des difficultés rencontrées.
Article R821-17
Le président du Haut Conseil refuse de donner suite à une demande d'information, de documents ou d'assistance mentionnée à l'article R. 821-16 lorsque :
a) Des personnes employées ou ayant été employées par l'autorité requérante ne sont pas soumises au secret professionnel ;
b) La demande est motivée par des fins étrangères à l'accomplissement des missions de l'autorité requérante, à la surveillance et au contrôle des personnes en charge du contrôle légal des comptes ou à la mise en oeuvre de procédures se rapportant à l'exercice du commissariat aux comptes ;
c) Il existe un risque sérieux que les informations ou documents requis soient divulgués à d'autres personnes ou autorités qu'à l'autorité requérante, à moins que cette divulgation ne soit autorisée dans le cadre de procédures établies par des dispositions législatives, réglementaires ou administratives se rapportant à l'exercice du contrôle légal des comptes ;
d) La communication des éléments demandés serait de nature à porter atteinte à la souveraineté, à la sécurité ou à l'ordre public français ;
e) Une procédure pénale a déjà été engagée en France sur la base des mêmes faits et contre les mêmes personnes ;
f) Les personnes visées par la requête ont déjà été sanctionnées pour les mêmes faits par une décision définitive.
Le président du Haut Conseil peut aussi refuser de donner suite à une demande d'information, de documents ou d'assistance lorsqu'une procédure civile ou disciplinaire a déjà été engagée en France
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sur la base des mêmes faits et contre les mêmes personnes.
Article R821-18
Les informations et documents reçus par le Haut Conseil dans le cadre de la coopération avec les autorités compétentes d'autres Etats membres de la Communauté européenne exerçant des compétences analogues aux siennes ne peuvent être utilisés qu'aux fins de l'exercice de ses missions ou dans le cadre de procédures se rapportant à l'exercice du commissariat aux comptes.
Article R821-19
Lorsque le Haut Conseil conclut que des actes contraires au statut régissant les commissaires aux comptes ou aux règles gouvernant l'exercice du commissariat aux comptes ont été commis sur le territoire d'un autre Etat membre de la Communauté européenne, son président en informe l'autorité compétente de cet Etat en précisant les motifs qui l'ont conduit à cette conclusion et les éléments de fait qui en sont à l'origine.
Article R821-20
Le Haut Conseil peut, dans les conditions prévues à l'article L. 821-5-1, conclure des conventions de coopération avec des autorités d'Etats non membres de la Communauté européenne exerçant des compétences analogues aux siennes et qui ont été reconnues par la Commission comme répondant aux critères d'adéquation mentionnés au 3 de l'article 47 de la directive 2006/48/CE du 17 mai 2006 du Parlement européen et du Conseil.
Ces conventions ne peuvent porter que sur des échanges d'informations et de documents relatifs au contrôle légal des comptes de personnes ou d'entités émettant des valeurs mobilières sur les marchés de capitaux de l'Etat concerné ou entrant dans le périmètre de consolidation de ces personnes ou entités.
Ces conventions comportent des stipulations assurant le respect, dans les échanges avec les autorités des Etats tiers, des prescriptions fixées par les articles R. 821-17 et R. 821-18. Elles précisent les modalités de la coopération envisagée. Elles garantissent notamment :
a) La communication des informations et documents d'autorité compétente à autorité compétente ;
b) L'exposé par l'autorité requérante des motifs de sa demande de coopération ;
c) Le respect des dispositions relatives à la protection des données personnelles ;
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d) L'utilisation des informations et documents communiqués aux seules fins de la supervision publique des personnes en charge de fonctions de contrôle légal des comptes.
Article R821-21
Le projet de convention est communiqué aux membres du Haut Conseil ainsi qu'au commissaire du Gouvernement un mois au moins avant la séance au cours de laquelle il sera examiné.
La délibération du Haut Conseil approuvant le projet de convention est notifiée au garde des sceaux, ministre de la justice, et au commissaire du Gouvernement.
Le garde des sceaux, ministre de la justice, peut former un recours contre cette délibération devant le Conseil d'Etat dans le délai d'un mois à compter de sa notification.
Une fois la délibération définitive, la convention est signée par le président du Haut Conseil.
Sans préjudice des dispositions du deuxième alinéa de l'article L. 821-5-1, elle est publiée par le Haut Conseil, notamment par voie électronique.
Article R821-22
Les modalités selon lesquelles le président du Haut Conseil ou, par délégation, le secrétaire général, exerce les compétences prévues aux articles R. 821-16 à R. 821-19 et celles résultant des conventions prévues à l'article R. 821-20 sont précisées par le Haut Conseil dans son règlement intérieur.
Section 2 : Des contrôles et inspections des commissaires aux comptes.
Article R821-23
Les dossiers et documents établis par le commissaire aux comptes en application de l'article R. 823-10 sont conservés pendant dix ans, même après la cessation des fonctions. Ils sont, pour les besoins des contrôles, inspections et procédures disciplinaires, tenus à la disposition des autorités de contrôle, qui peuvent requérir du commissaire aux comptes les explications et les justifications qu'elles estiment nécessaires concernant ces pièces et les opérations qui doivent y être mentionnées.
Article R821-24
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Les contrôles et inspections prévus à l'article L. 821-7 sont effectués sur pièces ou sur place.
Le commissaire aux comptes est tenu de fournir tous documents, pièces et explications sur les dossiers et documents établis en application de l'article R. 823-10, sur les conditions d'exécution de sa mission au sein des personnes et entités contrôlées, sur l'organisation de son cabinet, ainsi que sur l'activité globale de celui-ci.
Il justifie en outre des diligences accomplies en vue de garantir le respect des règles relatives à son indépendance, conformément aux dispositions de l'article L. 822-11 et du code de déontologie, et fournit tous renseignements permettant d'apprécier le respect des prescriptions de l'article L. 822-11.
Article R821-25
Les personnes en charge des contrôles mentionnés aux b et c de l'article L. 821-7 sont soumises à une obligation de discrétion pour toutes les informations qu'elles sont amenées à connaître dans le cadre de ces contrôles. Elles ne peuvent conserver aucun document à l'issue de leur mission.
Article R821-26
Les contrôles périodiques mentionnés au b de l'article L. 821-7 sont réalisés au moins tous les six ans, selon les orientations, le cadre et les modalités définis par le Haut Conseil du commissariat aux comptes. Ce délai est ramené à trois ans pour les commissaires aux comptes exerçant des fonctions de contrôle légal des comptes auprès de personnes ou d'entités dont les titres financiers sont admis aux négociations sur un marché réglementé ou appel à la générosité publique, d'organismes de sécurité sociale mentionnés à l'article L. 114-8 du code de la sécurité sociale, d'établissements de crédits, d'entreprises régies par le code des assurances, d'institutions de prévoyance régies par le titre III du livre IX du code de la sécurité sociale, de mutuelles ou d'unions de mutuelles régies par le livre II du code de la mutualité.
Les contrôles occasionnels mentionnés au c du même article, décidés par la Compagnie nationale ou les compagnies régionales, sont réalisés selon les règles décidées par la Compagnie nationale.
Article R821-27
En cas de contrôle de comptes consolidés, les commissaires aux comptes examinent les travaux effectués par les professionnels inscrits dans les Etats non membres de la Communauté européenne en charge du contrôle légal des comptes des personnes ou entités entrant dans le périmètre de consolidation. Ils constituent une documentation appropriée sur la manière dont ils ont satisfait à cette obligation.
Lorsqu'un professionnel inscrit dans un Etat pour lequel aucun accord de coopération n'a été conclu
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par le Haut Conseil a certifié les comptes de l'une des personnes ou entités entrant dans le périmètre de consolidation, les commissaires aux comptes veillent à ce que les documents de travail établis par ce professionnel soient dûment fournis, sur leur demande, aux personnes en charge des contrôles et inspections mentionnés à l'article L. 821-7.
Ils conservent à cet effet une copie de ces documents ou conviennent avec le contrôleur légal de la personne ou de l'entité concernée qu'ils y auront accès, ou prennent toute autre mesure appropriée pour les obtenir sans restriction et sur demande.
En cas d'empêchement, les commissaires aux comptes joignent à leur dossier tous les éléments de nature à établir les démarches et procédures engagées pour y accéder, ainsi que la réalité des difficultés rencontrées.
Section 3 : De l'organisation professionnelle
Sous-section 1 : De la Compagnie nationale et des compagnies régionales.
Article R821-28
La Compagnie nationale des commissaires aux comptes instituée par l'article L. 821-6 regroupe tous les commissaires aux comptes ainsi que toutes les sociétés de commissaires aux comptes inscrits sur la liste conformément à la section 1 du chapitre II du présent titre.
Article R821-29
Les compagnies régionales de commissaires aux comptes instituées par l'article L. 821-6 regroupent les commissaires aux comptes et les sociétés de commissaires aux comptes figurant sur la liste dressée par la commission régionale dans les conditions définies par la section 1 du chapitre II du présent titre pour le ressort de la cour d'appel.
Article R821-30
La Compagnie nationale et les compagnies régionales, dans la limite de leur ressort, concourent à la réalisation des objectifs fixés par l'article L. 821-6 pour le bon exercice de la profession par ses membres.
La Compagnie nationale et les compagnies régionales représentent la profession et défendent ses intérêts moraux et matériels.
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Elles contribuent à la formation et au perfectionnement professionnel de leurs membres, ainsi qu'à la formation des candidats aux fonctions de commissaires aux comptes.
Elles mettent en oeuvre les contrôles prévus aux articles L. 821-7 et L. 821-9, selon les orientations, le cadre et les modalités arrêtés par le Haut Conseil du commissariat aux comptes en application de l'article L. 821-1.
Article R821-31
La compagnie nationale communique chaque année au haut conseil, avant le 31 octobre, les déclarations d'activité qui lui sont transmises par les compagnies régionales en application de l'article R. 823-10. En cas de non-respect de cette obligation, le haut conseil peut, après mise en demeure infructueuse de la compagnie nationale, demander aux commissaires aux comptes et sociétés de commissaires aux comptes de lui adresser directement leurs déclarations d'activité selon les formes et modalités qu'il détermine.
Aux fins mentionnées à l'article R. 821-1, la compagnie nationale transmet au secrétaire général du Haut Conseil, à sa demande, les documents retraçant les opérations des contrôles diligentés en application du b de l'article L. 821-7.
Elle adresse chaque année au Haut Conseil un rapport sur les contrôles réalisés en application des articles L. 821-7 et L. 821-9. Ce rapport comprend deux sections. La première rend compte de l'exécution des contrôles périodiques diligentés conformément au cadre, aux orientations et aux modalités arrêtés par le Haut Conseil. La seconde rend compte des contrôles occasionnels décidés par la Compagnie nationale et les compagnies régionales en application du c de l'article L. 821-7. Chacune de ces deux sections détaille la nature, l'objet et les résultats des contrôles effectués, ainsi que les suites auxquelles ils ont donné lieu.
La Compagnie nationale peut présenter aux ministres intéressés toute proposition relative aux intérêts de ses membres.
Article R821-32
La Compagnie nationale des commissaires aux comptes comprend un département institué pour concourir à l'exercice de ses missions, qui regroupe les commissaires aux comptes et les représentants des sociétés de commissaires aux comptes exerçant des fonctions de contrôle légal des comptes dans le cadre d'opérations d'offres au public ou auprès de personnes ou d'entités dont les titres financiers sont admis aux négociations sur un marché réglementé.
Le président et le vice-président de ce département siègent au bureau avec voix consultative.
Il adopte son règlement intérieur.
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Article R821-33
Les membres de la compagnie régionale se réunissent une fois par an en assemblée, sur la convocation du président de la compagnie. L'accès de l'assemblée est interdit à ceux qui ne sont pas à jour du paiement de leurs cotisations professionnelles un mois avant la date de ladite assemblée.
Article R821-34
Lorsqu'il exerce en société, chaque commissaire aux comptes associé, actionnaire, membre des organes de gestion, de direction, d'administration ou de surveillance de la société participe à l'assemblée de la compagnie régionale à laquelle il appartient personnellement.
Article R821-35
L'assemblée de la compagnie régionale est présidée par le président de la compagnie, assisté des autres membres du bureau du conseil régional.
Elle délibère à la majorité des membres présents. En cas de partage égal des voix, celle du président est prépondérante.
Article R821-36
L'assemblée élit pour deux ans deux censeurs choisis parmi les personnes physiques membres de la compagnie et chargés de lui faire ultérieurement rapport sur la gestion financière du conseil régional au cours des exercices pendant lesquels ils auront été en fonction.
Les membres du conseil régional ne peuvent être censeurs. Les fonctions de censeur sont gratuites, mais leurs titulaires peuvent prétendre au remboursement des frais de déplacement et de séjour.
Article R821-37
L'assemblée entend le rapport moral et financier du conseil régional pour l'exercice écoulé et le rapport des censeurs sur la gestion financière du conseil régional. Elle statue sur ces rapports.
Article R821-38
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L'assemblée ne peut débattre que des questions inscrites à son ordre du jour par le conseil régional.
Celui-ci est tenu d'inscrire à l'ordre du jour les questions qui lui sont soumises à cet effet quinze jours au moins avant la date fixée pour la réunion, soit par le quart au moins des membres de la compagnie ayant droit de vote, soit par le procureur général près la cour d'appel.
Article R821-39
Le vote a lieu, à la date fixée par le conseil avant la date d'expiration des fonctions des membres sortants. Les votes par correspondance et par voie électronique sont admis.
Sont proclamés élus au premier tour de scrutin, dans l'ordre déterminé par le nombre de suffrages obtenu et dans la limite du nombre de sièges à pourvoir, les candidats ayant obtenu la majorité absolue des suffrages.
Si un second tour de scrutin est nécessaire, les candidats qui ont obtenu le plus grand nombre de suffrages sont élus.
A égalité de voix entre deux personnes, la plus âgée est élue.
Article R821-40
Le règlement intérieur de chaque compagnie fixe les modalités de la publicité à donner aux candidatures, de l'organisation des élections, du dépouillement du scrutin, du règlement des contestations et de la publication des résultats.
Sous-section 2 : Du Conseil national.
Article R821-41
Le Conseil national des commissaires aux comptes siège à Paris.
Article R821-42
Le Conseil national est composé de commissaires aux comptes délégués par les compagnies régionales.
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Les délégués sont élus dans son sein par le conseil régional, au scrutin secret, pour une durée de quatre ans, à raison d'un délégué par deux cents membres, personnes physiques ou fraction de deux cents membres, personnes physiques, sans pouvoir excéder quinze élus. Sont seules éligibles les personnes physiques à jour de leurs cotisations professionnelles, exerçant des fonctions de commissaire aux comptes à la date du scrutin.
Le Conseil national est renouvelé par moitié tous les deux ans.
Article R821-43
Si un siège du Conseil national devient vacant avant la date normale du renouvellement, il est pourvu dans le délai de trois mois. Les fonctions du nouveau délégué expirent à la même date que celles de son prédécesseur.
Les dispositions de l'article R. 821-72 sont applicables aux membres du Conseil national.
Article R821-44
En même temps que les délégués titulaires, les conseils régionaux élisent dans les mêmes conditions et pour la même durée, un nombre égal de délégués suppléants qui siègent au Conseil national en cas d'absence ou d'empêchement des titulaires.
Les deuxième, troisième et quatrième alinéas de l'article R. 821-39 sont applicables à l'élection des délégués titulaires et suppléants.
Article R821-45
Le Conseil national élit en son sein, selon les modalités fixées à l'article R. 821-63 et pour deux ans, un président, trois vice-présidents et six membres qui constituent le bureau. Quatre au moins des personnes siégeant au bureau doivent exercer effectivement des fonctions de contrôle légal des comptes dans le cadre d'opérations d'offres au public ou auprès de personnes dont les titres financiers sont admis aux négociations sur un marché réglementé.
Sont seules éligibles en qualité de président les personnes qui ont exercé les fonctions de délégué au Conseil national pendant une durée d'au moins deux ans ou qui ont été membres du bureau national pendant une durée d'au moins un an.
Si un siège du bureau du Conseil national devient vacant, il est pourvu par le conseil dans le délai de trois mois. Les fonctions du nouveau membre expirent à la même date que celles de son prédécesseur.
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Article R821-46
Le Conseil national crée en son sein des commissions spécialisées qui lui rendent compte et ne peuvent représenter la Compagnie nationale.
Il en fixe la compétence, la composition et le fonctionnement.
Article R821-47
Le Conseil national se réunit au moins une fois par semestre.
Il peut être convoqué aussi souvent qu'il est nécessaire, par le président, après avis du bureau.
Il doit être convoqué, à la demande du garde des sceaux, ministre de la justice.
Article R821-48
Le bureau du Conseil national se réunit sur la convocation du président, d'un vice-président ou de la moitié de ses membres.
Article R821-49
Le Conseil national et le bureau du Conseil national ne délibèrent valablement que si la moitié au moins de leurs membres sont présents.
Les membres peuvent se faire représenter.
Un membre ne peut disposer de plus de deux mandats.
Les décisions sont prises à la majorité des membres présents ou représentés.
En cas de partage égal des voix, la voix du président est prépondérante.
Article R821-50
Le Conseil national et le bureau tiennent un registre de leurs délibérations.
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Le procès-verbal de chaque séance est signé par le président et le secrétaire.
Article R821-51
Le Conseil national est chargé de l'administration de la Compagnie nationale et de la gestion de ses biens.
Il donne son avis, lorsqu'il y est invité par le garde des sceaux, ministre de la justice, sur les projets de loi et de décret qui lui sont soumis, ainsi que sur les questions entrant dans ses attributions.
Il soumet aux pouvoirs publics toutes propositions utiles relatives à l'organisation professionnelle et à la mission des commissaires aux comptes.
Il prend les décisions qui sont de la compétence de la Compagnie nationale en vertu du présent titre, et notamment de ses articles R. 821-30 et R. 821-31.
Sur proposition du bureau, il adopte le budget de la Compagnie nationale, en répartit la charge entre les compagnies régionales et adopte son règlement intérieur.
Article R821-52
Sur délégation du Conseil national auquel il rend compte semestriellement, le bureau assure l'administration courante de la Compagnie nationale.
Dans les mêmes conditions :
1° Il coordonne l'action des conseils régionaux, notamment en ce qui concerne la défense des intérêts moraux et matériels de la profession et la discipline générale des commissaires aux comptes ;
2° Il examine les suggestions des conseils régionaux, en leur donnant la suite qu'elles comportent ;
3° Il prévient et concilie les différends d'ordre professionnel entre les conseils régionaux ou entre les commissaires aux comptes n'appartenant pas à une même compagnie régionale.
Article R821-53
Le bureau prépare les délibérations du Conseil national dont le président fixe l'ordre du jour.
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Il soumet au garde des sceaux, ministre de la justice, les projets de normes d'exercice professionnel, adoptés préalablement sur sa proposition par le Conseil national.
Il centralise les indications des fichiers des compagnies régionales prévus au 2° de l'article R. 821-68 dans un fichier national indiquant, pour chaque membre de la Compagnie nationale, les personnes dont il est commissaire aux comptes.
Il publie l'annuaire prévu à l'article R. 822-19, y compris par voie électronique.
Il transmet au Haut Conseil les informations relatives à l'inscription et aux mandats exercés, mentionnées au 2° de l'article R. 821-68.
Article R821-54
Le Conseil national peut conférer au bureau les pouvoirs qu'il juge convenables pour l'exécution de ses décisions.
Article R821-55
Le président élu par le Conseil national représente la Compagnie nationale dans tous les actes de la vie civile et este en justice en son nom. Il porte le titre de président de la Compagnie nationale des commissaires aux comptes.
Il représente la Compagnie nationale auprès des pouvoirs publics.
Il ne peut être membre d'aucune chambre de discipline.
Il cesse d'être délégué du conseil régional qui pourvoit à son remplacement.
Sous-section 3 : Des conseils régionaux.
Article R821-56
Le conseil régional des commissaires aux comptes siège au chef-lieu de la cour d'appel et est désigné par le nom de ce chef-lieu.
Il peut, à titre exceptionnel, siéger dans un autre lieu du ressort de la cour d'appel dont il dépend, avec l'accord des chefs de cour.
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Article R821-57
Le conseil régional est composé de :
1° Six membres si la compagnie régionale comprend moins de cent membres personnes physiques ;
2° Douze membres si la compagnie régionale comprend de cent à deux cent quarante-neuf membres personnes physiques ;
3° Quatorze membres si la compagnie régionale comprend de deux cent cinquante à quatre cent quatre-vingt-dix-neuf membres personnes physiques ;
4° Seize membres si la compagnie régionale comprend de cinq cents à sept cent quarante-neuf membres personnes physiques ;
5° Dix-huit membres si la compagnie régionale comprend de sept cent cinquante à neuf cent quatre-vingt-dix-neuf membres personnes physiques ;
6° Vingt-deux membres si la compagnie régionale comprend de mille à mille neuf cent quatre-vingt-dix-neuf membres personnes physiques ;
7° Vingt-six membres si la compagnie régionale comprend au moins deux mille membres personnes physiques.
Cette composition est définie sur la base de l'effectif de la liste arrêté au 1er janvier de l'année des élections.
Article R821-58
Le conseil régional ne peut comprendre plus de la moitié de membres appartenant à une même société.
Article R821-59
Les membres du conseil régional sont élus au scrutin secret, pour une durée de quatre ans.
Le conseil régional est renouvelé par moitié tous les deux ans.
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Sont électeurs les personnes physiques membres de la compagnie régionale, à jour de leurs cotisations professionnelles.
Sont éligibles les personnes physiques, à jour de leurs cotisations professionnelles, exerçant des fonctions de commissaire aux comptes à la date du scrutin.
Article R821-60
Si l'effectif du conseil régional est réduit de plus de moitié, il est procédé, dans le délai de deux mois, à une élection partielle pour pourvoir les sièges vacants. Le mandat des membres ainsi élus expire à la même date que celui de leurs prédécesseurs.
Il n'y a pas lieu à élection partielle, si la prochaine élection biennale doit intervenir dans le délai de six mois.
Les sièges vacants, non soumis à renouvellement, sont pourvus à cette occasion et le mandat des membres élus expire à la même date que celui de leurs prédécesseurs.
Article R821-61
Tout candidat à une élection de membre d'un conseil régional adresse sa candidature au siège du conseil, par lettre recommandée avec demande d'avis de réception, un mois au moins avant la date fixée pour cette élection.
Les membres sortants d'un conseil ne sont immédiatement rééligibles qu'une seule fois.
Article R821-62
Si plusieurs sièges pourvus lors d'une élection partielle comportent pour leur titulaire des mandats de durée différente ou si des sièges vacants, pourvus lors d'une élection biennale, sont soumis à renouvellement avant l'expiration de la durée normale du mandat, il est procédé, au cours de la première séance du conseil suivant les élections, à l'affectation de chacun des membres nouvellement élus à l'un de ces sièges, par voie de tirage au sort.
Il en est de même après l'élection du premier conseil régional pour désigner les membres soumis à réélection après deux années de mandat seulement.
Article R821-63
Le conseil régional élit parmi ses membres au scrutin secret, pour un mandat de deux ans, un
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président, un ou deux vice-présidents, un secrétaire et un trésorier, qui constituent le bureau. Le nombre de membres du bureau peut être porté à sept ou neuf si l'effectif de la compagnie régionale est supérieur respectivement à cinq cents ou à mille.
Le mandat du président est renouvelable une fois.
Les désignations ont lieu à la majorité absolue des voix au premier tour, à la majorité relative au second.
Article R821-64
Le conseil régional ne délibère valablement que si la moitié au moins de ses membres sont présents.
En cas d'absence ou d'empêchement d'un ou plusieurs membres et dans la mesure nécessaire pour atteindre le quorum, le conseil régional peut appeler à siéger les membres de la compagnie les plus anciens dans l'ordre d'inscription sur la liste et, à égalité de date d'inscription, les plus âgés.
Les décisions sont prises à la majorité des membres présents. En cas de partage, la voix du président est prépondérante.
Article R821-65
Le conseil régional tient un registre de ses délibérations. Le procès-verbal de chaque séance est signé par le président et le secrétaire.
Article R821-66
Le conseil régional est convoqué par le président lorsque cela est nécessaire et au moins une fois par semestre.
Il est obligatoirement convoqué par le président à la demande du procureur général près la cour d'appel ou de la moitié au moins des membres du conseil. La réunion intervient dans les quinze jours de la réception de la demande par le président.
Article R821-67
Le conseil régional agit dans le cadre des délibérations de l'assemblée de compagnie régionale conformément aux articles R. 821-33 à R. 821-40.
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Article R821-68
Le conseil régional a pour mission, outre l'administration de la compagnie régionale et la gestion de son patrimoine :
1° De prendre les décisions qui sont de la compétence de la compagnie régionale en vertu du présent titre, et notamment de l'article R. 821-30 ;
2° D'établir et de tenir à jour un fichier indiquant pour chaque membre de la compagnie :
a) Les personnes et entités dont il est commissaire aux comptes ;
b) Le total du bilan, des produits d'exploitation et des produits financiers de ces personnes et entités, ainsi que le nombre d'heures de travail correspondant ;
c) La liste de ses salariés, leurs mandats, les missions auxquelles ils participent, ainsi que le nombre d'heures qu'ils ont effectuées et, s'agissant des personnes morales, la liste de leurs associés ;
3° De surveiller l'exercice de la profession de commissaire aux comptes dans la circonscription, et notamment de saisir le syndic de la chambre de discipline des fautes professionnelles relevées à l'encontre des membres de la compagnie ;
4° D'adopter le règlement intérieur de la compagnie régionale ;
5° D'examiner toutes réclamations de la part des tiers contre les commissaires aux comptes membres de la compagnie régionale, à l'occasion de l'exercice de la profession ;
6° De donner son avis, s'il y est invité par l'une des parties ou par le ministère public, sur l'action en responsabilité intentée contre un commissaire aux comptes en raison d'actes professionnels ;
7° De fixer et de recouvrer le montant des cotisations dues par les membres de la compagnie régionale pour couvrir les frais de ladite compagnie, y compris les sommes dues à la Compagnie nationale conformément à l'article R. 821-51 ;
8° De saisir le Conseil national de toutes requêtes ou suggestions concernant la profession ;
9° De mettre à la disposition de ses membres les services d'intérêt commun qui apparaîtraient nécessaires au bon exercice de la profession.
Article R821-69
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Le conseil régional transmet au Conseil national les informations mentionnées au 2° de l'article R. 821-68.
Article R821-70
Le président élu par le conseil régional porte le titre de président de la compagnie régionale des commissaires aux comptes.
Il représente la compagnie régionale dans tous les actes de la vie civile et pour ester en justice. Il assure l'exécution des décisions du conseil régional ainsi que le respect des décisions du Conseil national dans le ressort de la compagnie régionale et veille au fonctionnement régulier de la compagnie régionale.
Il réunit périodiquement le bureau du conseil régional et le tient informé des décisions et mesures prises dans l'accomplissement de ses fonctions.
Il prévient et concilie, si possible, tout conflit ou toute contestation d'ordre professionnel entre commissaires aux comptes membres de la compagnie régionale.
Il saisit le Haut Conseil du commissariat aux comptes conformément au deuxième alinéa de l'article R. 821-6. Il en avise immédiatement le président de la Compagnie nationale des commissaires aux comptes.
Article R821-71
Les vice-présidents assistent le président et le remplacent en cas de démission, d'absence ou d'empêchement. A défaut du président ou des vice-présidents, les fonctions du président sont exercées par le doyen d'âge du conseil régional.
Article R821-72
Tout membre d'un conseil qui cesse de remplir les conditions requises pour être éligible cesse de plein droit de faire partie dudit conseil.
Chapitre II : Du statut des commissaires aux comptes
Section 1 : De l'inscription et de la discipline
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Sous-section 1 : De l'inscription.
Article R822-1
La liste des commissaires aux comptes mentionnée à l'article L. 822-1 est dressée par les commissions régionales instituées à l'article L. 822-2.
Les commissaires aux comptes sont inscrits par la commission régionale de la cour d'appel dans le ressort de laquelle se trouve leur domicile. Les sociétés ayant qualité pour être commissaires aux comptes sont inscrites par la commission régionale dans le ressort de laquelle se trouve leur siège.
Les commissaires aux comptes exerçant dans une société informent la commission régionale de cette appartenance lors de leur demande d'inscription. Ils en informent également leur compagnie régionale par lettre recommandée avec demande d'avis de réception.
Les commissaires aux comptes inscrits peuvent exercer leur profession sur l'ensemble du territoire.
Paragraphe 1 : Des conditions d'inscription sur la liste.
Article R822-2
Ne peuvent être admis à se présenter au certificat d'aptitude aux fonctions de commissaire aux comptes que les titulaires de l'un des diplômes d'enseignement supérieur dont la liste est arrêtée conjointement par le garde des sceaux, ministre de la justice, et le ministre chargé de l'enseignement supérieur, ainsi que les anciens élèves diplômés de l'un des établissements ou de l'une des écoles dont la liste est établie dans les mêmes conditions.
Peuvent être également admis à se présenter au certificat d'aptitude aux fonctions de commissaire aux comptes, après avoir accompli le stage prévu au 5° de l'article L. 822-1-1, les personnes mentionnées au 1° du même article, titulaires d'un diplôme jugé de même niveau que ceux indiqués à l'alinéa précédent par le garde des sceaux, ministre de la justice, et le ministre chargé de l'enseignement supérieur.
Le programme et les modalités du certificat d'aptitude aux fonctions de commissaire aux comptes sont fixés par arrêté du garde des sceaux, ministre de la justice, et du ministre chargé de l'enseignement supérieur.
Les épreuves du certificat d'aptitude aux fonctions de commissaire aux comptes ont lieu au moins une fois par an, à une date fixée par arrêté du garde des sceaux, ministre de la justice.
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Article R822-3
Le stage professionnel prévu au 5° de l'article L. 822-1-1 est d'une durée de trois ans.
Il est accompli chez une personne physique ou dans une société inscrite sur la liste prévue à l'article L. 822-1 et habilitée à cet effet. Il peut être également accompli :
1° Dans la limite de deux ans, chez une personne agréée par un Etat membre de la Communauté européenne pour exercer le contrôle légal des comptes ;
2° Dans la limite d'un an, chez toute personne autre que celles qui exercent le contrôle légal des comptes en France et dans les autres Etats membres de la Communauté européenne et offrant des garanties suffisantes quant à la formation des stagiaires.
Le stage professionnel régulièrement accompli donne lieu à la délivrance d'un certificat portant les appréciations du président du conseil régional établies au vu du rapport du maître de stage. Lorsque le stage a été accompli dans le ressort de plusieurs conseils régionaux ou en tout ou partie à l'étranger, le président du conseil régional compétent est désigné dans des conditions fixées par arrêté du garde des sceaux, ministre de la justice.
Un arrêté du même ministre détermine l'autorité compétente au sein de la profession pour autoriser le stagiaire à effectuer tout ou partie du stage à l'étranger ou chez une personne autre que celles qui sont agréées pour exercer le contrôle légal des comptes ainsi que les modalités d'accomplissement de stage et de délivrance du certificat.
Les modalités de l'habilitation à recevoir des stagiaires sont définies par arrêté du garde des sceaux, ministre de la justice, sur proposition de la compagnie nationale.
Article R822-4
Lorsque le candidat à l'inscription est titulaire du diplôme d'expertise comptable, les deux tiers au moins du stage prévu par l'article 1er du décret du 12 mai 1981 relatif au diplôme d'expertise comptable doivent avoir été accomplis soit chez une personne inscrite sur la liste des commissaires aux comptes et habilitée à recevoir des stagiaires dans les conditions fixées au dernier alinéa de l'article R. 822-3, soit, sous réserve d'une autorisation donnée au stagiaire, dans des conditions fixées par arrêté du garde des sceaux, ministre de la justice, et du ministre chargé du budget, chez une personne agréée dans un Etat membre de la Communauté européenne pour exercer le contrôle légal des comptes.
Article R822-5
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Peuvent être admises à subir les épreuves du certificat d'aptitude aux fonctions de commissaire aux comptes et sont dispensées du stage professionnel, en application du premier alinéa de l'article L. 822-1-2, les personnes physiques ayant exercé pendant une durée de quinze ans au moins une activité publique ou privée qui leur a permis d'acquérir dans les domaines financier, comptable et juridique intéressant les sociétés commerciales une expérience jugée suffisante par le garde des sceaux, ministre de la justice.
Peuvent également être admis à subir l'examen d'aptitude aux fonctions de commissaire aux comptes les anciens syndics et administrateurs judiciaires et les anciens administrateurs judiciaires et mandataires judiciaires ayant exercé leurs fonctions pendant sept ans au moins. Le stage effectué auprès de ces professions est pris en compte pour une durée n'excédant pas un an en ce qui concerne l'accomplissement du stage prévu à l'article R. 822-3.
Article R822-6
Peuvent être inscrites sur la liste des commissaires aux comptes, en application des dispositions du deuxième alinéa de l'article L. 822-1-2, les personnes déjà agréées par les autorités compétentes d'un autre Etat membre de la Communauté européenne pour l'exercice du contrôle légal des comptes, sous réserve d'avoir subi avec succès une épreuve d'aptitude démontrant une connaissance adéquate des lois, règlements, normes et règles professionnelles nécessaires pour l'exercice du contrôle légal des comptes en France.
Le programme et les modalités de cette épreuve sont fixés par arrêté du garde des sceaux, ministre de la justice, après examen du dossier de la personne candidate à l'inscription.
A cette fin, l'intéressé adresse son dossier au garde des sceaux, ministre de la justice. A la réception du dossier complet, un récépissé lui est délivré.
Les candidats sont admis à se présenter à l'épreuve d'aptitude par décision du garde des sceaux, ministre de la justice. La décision précise les matières sur lesquelles les candidats doivent être interrogés compte tenu de leur formation initiale. Elle doit être motivée et intervenir dans un délai de quatre mois à compter de la délivrance du récépissé.
Les dispositions du présent article sont également applicables aux personnes qui, quoique non agréées dans un autre Etat membre de la Communauté européenne, réunissent les conditions de titre, de diplôme et de formation pratique permettant d'obtenir un tel agrément conformément aux dispositions de la directive 2006/48/CE du 17 mai 2006 du Parlement européen et du Conseil.
Article R822-7
Peuvent également être inscrites sur la liste des commissaires aux comptes en application des dispositions du deuxième alinéa de l'article L. 822-1-2 les personnes qui ont suivi avec succès un cycle d'études d'une durée minimale de trois ans ou d'une durée équivalente à temps partiel dans une université ou un établissement d'enseignement supérieur ou dans un autre établissement de même niveau de formation, ainsi que la formation professionnelle requise en plus de ce cycle d'études, et
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qui justifient :
a) D'un diplôme ou d'un titre jugé de même niveau que le certificat d'aptitude aux fonctions de commissaire aux comptes ou le diplôme d'expertise comptable, par le garde des sceaux, ministre de la justice, et permettant l'exercice de la profession dans un Etat non membre de la Communauté européenne admettant les nationaux français à exercer le contrôle légal des comptes ;
b) D'une expérience professionnelle de trois ans jugée suffisante par le garde des sceaux dans le domaine du contrôle légal des comptes.
L'intéressé doit subir une épreuve d'aptitude dans les conditions prévues à l'article R. 822-6.
Paragraphe 2 : De la commission régionale d'inscription et de la tenue de la liste.
Article R822-8
Le président et les membres de la commission régionale d'inscription mentionnés à l'article L. 822-2 sont nommés par le garde des sceaux, ministre de la justice, dans les conditions suivantes :
1° Le président, le professeur des universités et les deux personnalités qualifiées, sur proposition du premier président de la cour d'appel ;
2° Le représentant du ministre chargé de l'économie, sur proposition de celui-ci ;
3° Le magistrat de la chambre régionale des comptes, sur proposition du président de celle-ci ;
4° Le membre de la compagnie régionale des commissaires aux comptes, sur proposition du président de celle-ci, après avis du premier président de la cour d'appel et du procureur général près celle-ci.
Les suppléants sont désignés dans les mêmes conditions que les titulaires.
Article R822-9
Lorsque le président ou un membre titulaire de la commission ou son suppléant est empêché pour quelque motif que ce soit, il est procédé à son remplacement par le garde des sceaux, ministre de la justice, dans les mêmes conditions que la nomination initiale, pour le temps du mandat restant à courir.
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Le greffier en chef de la cour d'appel ou un greffier délégué par lui assure le secrétariat de la commission régionale d'inscription.
Article R822-10
La demande d'inscription présentée à la commission régionale est déposée ou adressée au greffe de la cour d'appel, avec un dossier comprenant les pièces justificatives des titres du candidat.
Les nom, prénoms et domicile du candidat ou, le cas échéant, sa raison sociale ou dénomination sociale et l'adresse du siège social, ainsi que la date d'arrivée de la demande, sont inscrits sur un registre spécial tenu au greffe de la cour d'appel.
Le greffier en chef demande le bulletin n° 2 du casier judiciaire du candidat.
Lorsque le dossier est complet, il est transmis au président de la commission qui désigne un rapporteur parmi les membres de celle-ci, ou en cas de besoin parmi les membres suppléants.
La demande d'inscription est examinée par la commission régionale dans un délai de deux mois à compter du dépôt du dossier complet.
Article R822-11
La demande d'inscription d'une société est en outre régie par les dispositions des articles R. 822-74 et suivants.
Article R822-12
La commission vérifie si le candidat remplit les conditions requises pour être inscrit. Elle recueille sur le candidat tous renseignements utiles.
Elle peut convoquer le candidat et procéder à son audition. Ce dernier peut se faire assister d'un conseil de son choix.
Lorsque, à la date de sa demande d'inscription, le candidat se trouve dans l'un des cas d'incompatibilité prévus à l'article L. 822-10, son inscription peut être décidée sous condition suspensive de régularisation de sa situation dans un délai de six mois. L'intéressé justifie auprès de la commission régionale d'inscription de la fin de cette incompatibilité.
Article R822-13
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La commission ne peut siéger que si quatre de ses membres au moins sont présents. Elle décide, à la majorité, d'inscrire ou de ne pas inscrire le candidat. Si elle rejette la demande d'inscription, elle motive sa décision. En cas de partage, la voix du président est prépondérante.
Article R822-14
La formulation de la prestation de serment prévue à l'article L. 822-3 est la suivante :
" Je jure d'exercer ma profession avec honneur, probité et indépendance, de respecter et faire respecter les lois. "
Le serment est prêté, par oral ou par écrit, devant le premier président de la cour d'appel dont relève le commissaire aux comptes.
Article R822-15
Chaque année la commission après avoir révisé la liste des personnes inscrites arrête la liste à la date du 1er janvier.
A l'occasion de la révision annuelle, elle récapitule les décisions d'inscription intervenues dans l'année, supprime le nom de ceux qui sont décédés, qui lui ont donné leur démission, qui ont été omis ou suspendus, qui ont fait l'objet d'une mesure de radiation ou d'une interdiction temporaire, ou qui ne remplissent plus les conditions légales ou réglementaires pour être maintenus sur la liste.
Article R822-16
La liste est établie par ordre alphabétique avec indication, pour chaque commissaire aux comptes ou société de commissaires aux comptes, de l'année d'inscription initiale et du numéro d'inscription.
Elle est divisée en deux sections : la première pour les personnes physiques, la seconde pour les sociétés.
Sont mentionnés dans la première section :
a) Les nom, prénoms et numéro d'inscription de l'intéressé ;
b) Son adresse professionnelle et ses coordonnées téléphoniques ainsi, le cas échéant, que l'adresse de son site internet ;
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c) Lorsque l'intéressé est associé ou salarié d'une personne morale ou exerce ses fonctions pour le compte d'une personne morale, la dénomination sociale, la forme juridique, l'adresse du siège social, le numéro d'inscription et, le cas échéant, l'adresse du site internet de celle-ci.
Sont mentionnés dans la seconde section :
a) La dénomination sociale, la forme juridique et le numéro d'inscription de la société ;
b) L'adresse du siège social et les coordonnées téléphoniques de la société ainsi, le cas échéant, que l'adresse de son site internet ;
c) Les noms et adresses professionnelles des associés ou actionnaires, des membres des organes de gestion, de direction, d'administration ou de surveillance de la société ;
d) Les noms et numéros d'inscription des commissaires aux comptes associés de la société ou salariés par elle, ainsi que la liste et l'adresse de ses établissements ;
e) Le cas échéant, l'appartenance de la société à un réseau national ou international dont les membres ont un intérêt économique commun, ainsi que les noms et adresses des cabinets membres de ce réseau et des personnes et entités qui lui sont affiliées, ou l'indication de l'endroit où ces informations sont accessibles au public.
Lorsque la personne inscrite dans l'une ou l'autre des deux sections est agréée dans un autre Etat membre de la Communauté européenne ou dans un pays tiers pour procéder au contrôle légal des comptes, la liste fait état de cette inscription en mentionnant, le cas échéant, le nom de l'autorité étrangère d'inscription et le numéro d'enregistrement attribué par cette dernière.
Article R822-17
La liste mentionne le nom et l'adresse de la commission régionale d'inscription, chambre régionale de discipline, les coordonnées du magistrat chargé du ministère public mentionné à l'article R. 822-35, ainsi que les coordonnées du Haut Conseil du commissariat aux comptes.
Article R822-18
Lors de leur demande d'inscription, les commissaires aux comptes ou sociétés de commissaires aux comptes communiquent à la commission, sous leur signature, l'ensemble des informations nécessaires à la constitution de la liste.
Ils informent sans délai la commission régionale d'inscription, leur compagnie régionale de rattachement et la Compagnie nationale, par lettre recommandée avec demande d'avis de réception, de tout changement intervenu dans leur situation au regard de ces informations.
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Article R822-19
La liste arrêtée annuellement, conformément aux articles R. 822-15, R. 822-16 et R. 822-17 par la commission est affichée, avant le 31 janvier de chaque année, dans les locaux du greffe de la cour d'appel, par le greffier en chef.
Dans le même délai, le greffier en chef adresse copie de la liste au greffier de chaque tribunal de grande instance ou tribunal de commerce et au président de chaque chambre de commerce et d'industrie du ressort de la cour d'appel, aux fins d'affichage dans les locaux du greffe et de la chambre ainsi qu'au président de la Compagnie nationale et de la compagnie régionale des commissaires aux comptes. Copie de la liste est également immédiatement adressée au Haut Conseil du commissariat aux comptes. Les modifications faites en application du deuxième alinéa de l'article R. 822-18 sont communiquées sans délai au Haut Conseil du commissariat aux comptes, ainsi qu'à la Compagnie nationale des commissaires aux comptes et à la compagnie régionale intéressée.
La Compagnie nationale des commissaires aux comptes publie au plus tard le 1er mars de chaque année l'annuaire national des commissaires aux comptes. Cet annuaire reproduit par compagnies régionales les listes établies conformément aux dispositions des articles R. 822-15, R. 822-16 et R. 822-17. La Compagnie nationale assure sans délai la mise à jour et la publication de ces informations par voie électronique.
Article R822-20
Si un commissaire aux comptes transfère son domicile hors du ressort de la cour d'appel sur la liste de laquelle il est inscrit, il demande sans délai son inscription sur la liste du ressort dans lequel est situé son nouveau domicile.
Seules les pièces justificatives relatives aux modifications intervenues depuis la dernière inscription sont exigées.
La décision d'inscription du commissaire aux comptes sur la liste du ressort dans lequel est situé son nouveau domicile est notifiée par le greffe de la cour d'appel au greffe de l'ancienne, qui procède à la radiation.
Article R822-21
La personne qui change de ressort de cour d'appel conserve le bénéfice de la date de son inscription initiale.
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Article R822-21-1
Les commissaires aux comptes et sociétés de commissaires aux comptes mentionnés au premier alinéa de l'article L. 822-1-3 sont inscrits par la commission régionale d'inscription de la cour d'appel de Paris dans une section de la liste reprenant les informations mentionnées à l'article R. 822-16. Ils déposent à cette fin une demande d'inscription au greffe de ladite cour d'appel, avec un dossier comprenant les pièces justificatives de leur agrément par les autorités compétentes de leur Etat d'origine. Les dispositions des deuxième et troisième paragraphes de la présente sous-section s'appliquent. Pour l'application du b de l'article L. 822-1-3, le garde des sceaux, ministre de la justice, notifie à la Commission européenne les éléments sur lesquels repose son évaluation ainsi que les conventions passées, le cas échéant, en application de l'article L. 821-5-1.
Paragraphe 3 : Des recours contre les décisions de la commission régionale d'inscription.
Article R822-22
Dans le délai d'un mois, toute décision est notifiée par le greffier en chef, contre émargement ou récépissé, au procureur général près la cour d'appel et par lettre recommandée avec demande d'avis de réception au président du conseil régional et à l'intéressé. La lettre de notification fait mention du délai de recours prévu à l'article R. 822-24 et des modalités selon lesquelles ce recours peut être exercé.
Article R822-23
Les décisions de la commission régionale peuvent être déférées au Haut Conseil du commissariat aux comptes, dans les conditions prévues à l'article R. 822-24.
Article R822-24
Le recours devant le Haut Conseil du commissariat aux comptes est ouvert dans le délai d'un mois à compter de la notification effectuée conformément à l'article R. 822-22 :
1° Au procureur général près la cour d'appel, contre toute décision de la commission régionale ;
2° Au candidat, contre la décision rejetant sa demande d'inscription ;
3° Au président du conseil régional, sur décision du bureau, contre toute décision d'inscription d'un candidat sur la liste.
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En outre le recours au Haut Conseil du commissariat aux comptes est ouvert avant le 15 mars au procureur général, aux présidents du Conseil national et du conseil régional ou à tout intéressé contre les décisions prises par la commission régionale à l'occasion de la révision annuelle de la liste.
Article R822-25
Dans le délai de huit jours à compter de sa réception, le secrétaire du Haut Conseil du commissariat aux comptes notifie à l'intéressé par lettre recommandée avec demande d'avis de réception le recours formé par le procureur général.
La même notification est faite en cas de recours formé par le conseil régional qui dispose alors d'un délai de quinze jours pour prendre connaissance, au greffe de la cour d'appel, du dossier au vu duquel a été prise la décision attaquée et pour présenter des observations complémentaires dont l'intéressé est avisé.
Article R822-26
Toute personne qui forme recours au Haut Conseil du commissariat aux comptes contre sa radiation de la liste ou contre le rejet de sa demande d'inscription, ou toute personne contre l'inscription de laquelle recours est formé au Haut Conseil, dispose d'un délai de quinze jours pour prendre connaissance au greffe de la cour d'appel du recours formé contre elle, des observations complémentaires éventuellement formulées en vertu de l'article R. 822-25 ainsi que des pièces du dossier au vu duquel a été prise la décision attaquée et pour adresser au secrétariat du Haut Conseil ses observations.
Article R822-27
En cas de recours formé contre une décision d'une commission régionale, le président de cette commission est avisé par le secrétaire du Haut Conseil du commissariat aux comptes.
Article R822-28
Dans le délai de huit jours qui suit l'expiration du délai prévu par l'article R. 822-26, le greffier en chef de la cour d'appel transmet au secrétaire du Haut Conseil du commissariat aux comptes les pièces du dossier au vu duquel a été prise la décision qui fait l'objet du recours.
Article R822-29
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Le Haut Conseil statue sur les questions qui ont été soumises à la commission régionale.
Il peut convoquer le candidat et procéder à son audition. Ce dernier peut se faire assister d'un conseil de son choix.
Article R822-30
Le secrétaire du Haut Conseil notifie la décision de ce dernier, par lettre simple au président de la commission régionale. Il la notifie contre émargement ou récépissé au garde des sceaux, ministre de la justice, et le cas échéant au procureur général qui a formé le recours.
Il notifie la décision à toute autre personne directement intéressée, par lettre recommandée avec demande d'avis de réception.
Article R822-31
Le garde des sceaux, ministre de la justice, et les personnes mentionnées à l'article R. 822-24 peuvent former un recours devant le Conseil d'Etat contre les décisions du Haut Conseil.
Sous-section 2 : De la discipline
Paragraphe 1 : Dispositions générales.
Article R822-32
Toute infraction aux lois, règlements et normes d'exercice professionnel homologuées par arrêté du garde des sceaux, ministre de la justice ainsi qu'au code de déontologie de la profession et aux bonnes pratiques identifiées par le Haut Conseil du commissariat aux comptes, toute négligence grave, tout fait contraire à la probité, à l'honneur ou à l'indépendance commis par un commissaire aux comptes, personne physique ou société, même ne se rattachant pas à l'exercice de la profession, constitue une faute disciplinaire passible de l'une des sanctions disciplinaires énoncées à l'article L. 822-8.
Article R822-33
Les sociétés de commissaires aux comptes sont passibles des sanctions disciplinaires dans les
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conditions prévues à la sous-section relative aux dispositions communes à toutes les sociétés de commissaires aux comptes.
Article R822-34
La démission du commissaire aux comptes ne fait pas obstacle à ce que l'action disciplinaire soit exercée pour des faits commis pendant l'exercice des fonctions.
Paragraphe 2 : Des juridictions et procédures disciplinaires.
Article R822-35
La chambre de discipline mentionnée à l'article L. 822-6 ne peut statuer que si cinq au moins de ses membres sont présents.
Le magistrat chargé du ministère public devant la chambre régionale de discipline est choisi parmi les magistrats appartenant au parquet général ou à l'un des parquets du ressort de la cour d'appel. Il est nommé par le garde des sceaux, ministre de la justice, sur proposition du procureur général. Un suppléant est nommé dans les mêmes conditions.
Un syndic et un syndic suppléant sont élus par le conseil régional en son sein dans les conditions prévues à la section 2 du chapitre Ier du titre Ier du présent livre pour une durée de deux ans. Dans les compagnies régionales de plus de mille membres inscrits peuvent être élus deux syndics titulaires et deux suppléants.
Le greffier en chef de la cour d'appel ou un greffier délégué par lui assure le secrétariat de la chambre régionale de discipline.
Article R822-36
Les plaintes dirigées contre un commissaire aux comptes sont reçues par le procureur général près la cour d'appel ou le conseil régional et transmises au magistrat chargé du ministère public auprès de la chambre régionale de discipline.
A la demande du magistrat chargé du ministère public, le syndic réunit, dans le délai de deux mois, les éléments d'information utiles, et transmet, avec ses observations, le dossier au magistrat chargé du ministère public. Celui-ci peut demander au syndic de lui communiquer le dossier ou de procéder à des mesures d'information complémentaires.
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Le procureur général peut également transmettre au magistrat chargé du ministère public auprès de la chambre régionale de discipline tout élément de nature à motiver une action disciplinaire.
Article R822-37
Le syndic ainsi que le magistrat chargé du ministère public peuvent requérir du commissaire aux comptes, de la personne auprès de laquelle celui-ci exerce sa mission ou de toute autre personne les explications et justifications nécessaires à l'information de la chambre.
Si le magistrat chargé du ministère public estime que les faits constituent une faute disciplinaire, il saisit la chambre régionale de discipline.
Si les faits concernent un commissaire aux comptes ayant son domicile ou son siège dans le ressort d'une autre compagnie régionale, le magistrat chargé du ministère public, après réunion des éléments d'information, transmet le dossier au magistrat chargé du ministère public auprès de la chambre régionale compétente. Ce dernier demande au syndic de procéder à une information complémentaire.
Article R822-38
Le magistrat chargé du ministère public, sauf lorsqu'il est saisi dans les conditions prévues au premier alinéa de l'article L. 822-7 par le garde des sceaux, ministre de la justice, le procureur de la République, le président de la compagnie régionale ou le président de la Compagnie nationale peut classer la plainte lorsqu'il estime que les faits dénoncés ne constituent pas une faute disciplinaire.
La décision de classement est portée, par le secrétaire de la chambre régionale de discipline, à la connaissance de l'auteur de la plainte, du commissaire aux comptes intéressé, du procureur général près la cour d'appel ainsi que des présidents de la compagnie régionale et de la Compagnie nationale.
Lorsqu'il est fait application du deuxième alinéa de l'article L. 822-7, le procureur général transmet la plainte du président de l'Autorité des marchés financiers au magistrat chargé du ministère public aux fins d'exercice de l'action disciplinaire.
Article R822-39
Lorsque plusieurs chambres régionales de discipline se trouvent saisies des mêmes faits ou de faits connexes, le magistrat chargé du ministère public peut requérir l'une des chambres de se dessaisir au profit de l'autre.
En cas de désaccord entre les chambres intéressées, la question de compétence peut être portée devant le Haut Conseil du commissariat aux comptes, lequel, saisi par requête du ministère public, désigne la chambre de discipline devant laquelle les faits sont portés.
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Article R822-40
Le commissaire aux comptes poursuivi disciplinairement est cité à comparaître devant la chambre régionale de discipline par le magistrat chargé du ministère public, quinze jours au moins avant l'audience, par lettre recommandée avec demande d'avis de réception.
La citation précise, à peine de nullité, les faits qui la motivent. Elle est portée à la connaissance de l'auteur de la plainte.
Article R822-41
Dès réception de la citation à comparaître devant la chambre régionale de discipline, le commissaire aux comptes peut prendre connaissance de son dossier. Il peut, à cet effet, se faire assister par un commissaire aux comptes et un avocat.
L'avocat peut se faire délivrer copie de tout ou partie des pièces du dossier pour l'usage exclusif de la procédure disciplinaire. Il ne peut transmettre les copies ainsi obtenues ou la reproduction de ces pièces à son client.
Article R822-42
Dès réception du dossier, le président de la chambre régionale de discipline désigne, parmi les membres de la chambre, un rapporteur chargé d'exposer oralement les éléments de l'affaire, au début de l'audience.
Article R822-43
Les débats devant la chambre sont publics. Toutefois, la chambre peut décider que les débats ne seront pas publics si le commissaire aux comptes poursuivi en fait expressément la demande ou s'il doit résulter de leur publicité une atteinte à l'ordre public, à un secret protégé par la loi ou au secret des affaires.
La chambre entend l'auteur de la plainte, si ce dernier en fait la demande. Elle peut entendre tous autres témoins et faire procéder à toutes investigations qu'elle estime utiles, au besoin par la désignation d'un ou plusieurs experts dont la rémunération est à la charge de la compagnie régionale.
Le magistrat chargé du ministère public dépose des conclusions écrites et peut présenter des observations orales ; le commissaire aux comptes peut présenter des observations écrites et orales et
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se faire assister d'un commissaire aux comptes et d'un avocat.
Dans tous les cas, le procureur général près la cour d'appel peut adresser un mémoire à la chambre régionale de discipline.
La chambre régionale entend le syndic, à la demande de ce dernier, du commissaire aux comptes poursuivi ou d'office.
Il est dressé procès-verbal des débats par le greffier en chef de la cour d'appel ou son délégué.
Article R822-44
La décision de la chambre régionale est prise à la majorité de ses membres. En cas de partage égal des voix, celle du président est prépondérante.
La décision de la chambre régionale est motivée.
Le secrétaire la notifie à l'intéressé, au président de la compagnie nationale et au président de la compagnie régionale, par lettre recommandée avec demande d'avis de réception. Il notifie en outre cette décision au procureur général, au garde de sceaux, ministre de la justice et au magistrat chargé du ministère public contre émargement ou récépissé.
La lettre de notification fait mention du délai de l'appel prévu à l'article R. 822-46 et des modalités selon lesquelles l'appel peut être exercé.
L'auteur de la plainte est avisé de la décision.
Les diligences incombant au secrétaire de la chambre régionale sont accomplies dans le délai d'un mois à compter du prononcé de la décision.
Article R822-45
Le magistrat chargé du ministère public devant le Haut Conseil du commissariat aux comptes statuant en matière disciplinaire et son suppléant sont nommés par le garde des sceaux, ministre de la justice, parmi les avocats généraux près la Cour de cassation, sur proposition du procureur général.
Lorsqu'il siège en matière disciplinaire, le Haut Conseil du commissariat aux comptes est assisté des rapporteurs mentionnés à l'article R. 821-2. Son secrétariat est assuré par l'un des secrétaires mentionnés au même article.
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Article R822-46
L'appel contre la décision de la chambre régionale de discipline peut être formé, devant le Haut Conseil du commissariat aux comptes, dans le délai d'un mois à compter de la notification qui leur est faite, par l'une des personnes mentionnées à l'article R. 822-44 et par le président de l'Autorité des marchés financiers lorsqu'il est à l'origine de la poursuite.
Article R822-47
L'appel est formé par lettre recommandée avec demande d'avis de réception adressée au secrétaire du Haut Conseil du commissariat aux comptes.
Le secrétaire notifie cet appel aux autres parties à l'instance, ainsi qu'au procureur général, au garde des sceaux, ministre de la justice, au président de la compagnie nationale et au président de la compagnie régionale, lorsqu'ils ne sont pas auteurs de l'appel.
Cette notification est faite par lettre recommandée avec demande d'avis de réception au commissaire aux comptes, au président de la compagnie nationale et au président de la compagnie régionale et contre émargement ou récépissé au garde des sceaux, ministre de la justice, au procureur général et au magistrat chargé du ministère public.
La notification ouvre un délai de dix jours pour interjeter appel incident.
L'appel est suspensif.
Article R822-48
Le commissaire aux comptes est cité à comparaître devant le Haut Conseil du commissariat aux comptes par le magistrat chargé du ministère public auprès de ce Haut Conseil, quinze jours au moins avant l'audience, par lettre recommandée avec demande d'avis de réception.
L'affaire est dévolue pour le tout au Haut Conseil, à moins que l'appel soit limité à certains chefs.
Le commissaire aux comptes bénéficie des dispositions de l'article R. 822-41.
Le rapporteur expose au Haut Conseil les éléments de l'affaire.
Article R822-49
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Les débats devant le Haut Conseil sont publics. Toutefois, le Haut Conseil peut décider que les débats ne seront pas publics si le commissaire aux comptes poursuivi en fait expressément la demande ou s'il doit résulter de la publicité une atteinte à l'ordre public, à un secret protégé par la loi ou au secret des affaires.
Le Haut Conseil entend l'auteur de la plainte, si ce dernier en fait la demande. Il peut entendre tous autres témoins et faire procéder à toutes investigations qu'il estime utiles, au besoin par la désignation d'un ou plusieurs experts.
Le magistrat chargé du ministère public dépose des conclusions écrites et peut présenter des observations orales. Le commissaire aux comptes peut présenter des observations écrites et orales et se faire assister d'un commissaire aux comptes et d'un avocat.
Il est dressé procès-verbal des débats par le secrétaire mentionné à l'article R. 821-2.
Article R822-50
La décision du Haut Conseil du commissariat aux comptes est motivée. Elle est notifiée par le secrétaire à l'intéressé, au garde des sceaux, ministre de la justice, au procureur général, au magistrat chargé du ministère public, au président de la compagnie nationale et au président de la compagnie régionale.
Cette notification est faite dans les conditions prévues à l'article R. 822-44.
L'auteur de la plainte est avisé de la décision.
Article R822-51
Les décisions rendues par le Haut Conseil sont susceptibles d'un pourvoi en cassation devant le Conseil d'Etat, dans les conditions fixées par les articles R. 821-1 et suivants du code de justice administrative, à l'initiative de l'intéressé, du garde des sceaux, ministre de la justice, ou du magistrat chargé du ministère public.
Paragraphe 3 : De l'exécution des sanctions disciplinaires.
Article R822-52
Un répertoire des professionnels inscrits ou ayant cessé provisoirement d'être inscrits sur la liste en application des articles R. 822-63 et suivants et ayant fait l'objet de sanctions disciplinaires, avec
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l'indication de ces sanctions, est tenu par le conseil national.
Ce répertoire, régulièrement actualisé, est transmis chaque année au Haut Conseil.
Article R822-53
Les décisions des chambres régionales de discipline sont exécutoires après l'expiration des délais d'appel.
Les décisions du Haut Conseil du commissariat aux comptes sont exécutoires à compter de leur notification au commissaire aux comptes.
Article R822-54
Les commissaires aux comptes omis, temporairement interdits ou radiés doivent restituer aux sociétés qu'ils contrôlaient les documents qu'ils détiennent pour le compte de ces sociétés ainsi que les sommes déjà perçues qui ne correspondent pas au remboursement de frais engagés ou à un travail effectivement accompli.
Article R822-55
Lorsque les décisions prononçant l'interdiction temporaire ou la radiation de la liste sont exécutoires au sens de l'article R. 822-53, le dispositif de ces décisions est publié, à la diligence du secrétaire de la chambre régionale ou du Haut Conseil du commissariat aux comptes, au Bulletin officiel des annonces civiles et commerciales.
Le cas échéant, le secrétaire de la chambre régionale ou du Haut Conseil communique la décision aux autorités compétentes des autres Etats membres de la Communauté européenne auprès desquelles le commissaire aux comptes frappé d'interdiction temporaire ou de radiation est inscrit.
Article R822-56
L'interdiction temporaire et la radiation emportent, pendant la durée de la sanction dans le premier cas, à titre définitif dans le second cas, interdiction d'exercer la profession de commissaire aux comptes.
La personne interdite temporairement ou radiée ne peut faire état de la qualité de commissaire aux comptes.
L'omission emporte interdiction d'exercer la profession et de faire état de la qualité de commissaire
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aux comptes.
Article R822-57
Lorsque le garde des sceaux, ministre de la justice, envisage de procéder à la suspension provisoire d'un commissaire aux comptes en application de l'article L. 821-10, l'intéressé en est avisé par lettre recommandée avec demande d'avis de réception. Il est invité à présenter ses observations au garde des sceaux, ministre de la justice, ou à son représentant dans un délai de huit jours. En cas d'urgence, ce délai est ramené à soixante-douze heures.
Lorsque la suspension provisoire est suivie d'une sanction disciplinaire, la durée de la suspension est imputée sur la durée de l'interdiction temporaire éventuellement prononcée.
Article R822-58
En cas de radiation, d'omission, de suspension provisoire ou d'interdiction temporaire le président de la compagnie régionale informe aussitôt de cette mesure les personnes auprès desquelles le commissaire aux comptes exerçait ses fonctions.
Le commissaire aux comptes interdit temporairement ne peut participer à l'activité des organismes professionnels dont il est membre.
L'interdiction temporaire est un des cas d'empêchement pour l'application de l'article L. 823-1.
Article R822-59
L'action disciplinaire se prescrit par dix ans.
Section 2 : De la déontologie et de l'indépendance des commissaires aux comptes.
Article R822-60
Le code de déontologie de la profession de commissaire aux comptes est annexé au présent livre.
Article R822-61
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Tout commissaire aux comptes a l'obligation de suivre une formation professionnelle et d'en rendre compte à la compagnie régionale dont il est membre.
La nature et la durée des activités susceptibles d'être validées au titre de cette obligation de formation, ainsi que les modalités du contrôle de son suivi sont déterminés par arrêté du garde des sceaux, ministre de la justice, sur proposition de la Compagnie nationale. Le conseil régional rend compte à cette dernière de la mise en oeuvre de cette formation.
Article R822-62
Les personnes physiques membres de la compagnie qui exercent la profession à titre individuel doivent agir sous leur nom de famille, à l'exclusion de tout pseudonyme ou titre impersonnel.
Article R822-63
Tout membre d'un conseil régional ou du conseil national qui, sans motif valable, refuse ou s'abstient de remplir les obligations ou d'effectuer les travaux que nécessite le fonctionnement normal du conseil ou de la compagnie, est réputé démissionnaire du conseil dont il est membre, sans préjudice de l'action disciplinaire dont il peut être l'objet pour le même motif.
Tout membre de la compagnie qui n'a pas payé ses cotisations au 31 décembre de l'année pour laquelle elles ont été appelées est omis de la liste. La réitération de ce comportement constitue un manquement passible de poursuites disciplinaires.
Article R822-64
Dans les cas prévus à l'article R. 822-63, après un appel infructueux adressé par lettre recommandée avec demande d'avis de réception rappelant les obligations de l'intéressé, le conseil régional saisit la commission régionale d'inscription.
Cette dernière convoque et entend le commissaire aux comptes intéressé, qui peut se faire assister d'un conseil de son choix.
Elle procède, le cas échéant, à son omission de la liste.
Les décisions en matière d'omission sont prises dans les mêmes formes et donnent lieu aux mêmes recours qu'en matière d'inscription.
Article R822-65
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Tout membre de la compagnie peut demander à cesser d'en faire partie provisoirement.
La demande, adressée au conseil régional par lettre recommandée avec demande d'avis de réception, doit être motivée et indiquer notamment la nouvelle activité que l'intéressé se propose d'exercer ainsi que la date à laquelle il souhaite se retirer provisoirement de la compagnie.
Le conseil régional transmet la demande à la commission d'inscription, qui statue selon la procédure prévue au la section 1 du chapitre II du présent titre.
L'intéressé a la faculté d'entreprendre sa nouvelle activité, même si la décision de la commission d'inscription n'est pas encore intervenue, à la condition d'en informer le conseil régional dans les conditions prévues au deuxième alinéa, au moins huit jours à l'avance, d'être à jour de ses cotisations professionnelles et de cesser préalablement son activité de commissaire aux comptes.
Article R822-66
La commission régionale fait droit à la demande, en omettant l'intéressé de la liste, s'il apparaît que sa nouvelle activité ou son comportement n'est pas de nature à porter atteinte aux intérêts moraux de la compagnie.
A compter de la notification de la décision prononçant l'omission de la liste, l'intéressé n'est plus membre de la compagnie. Il ne peut exercer en son nom et sous sa responsabilité la profession de commissaire aux comptes ni faire usage de ce titre. Toutefois, la décision n'a pas pour effet d'éteindre l'action disciplinaire en raison de faits commis antérieurement.
Le règlement intérieur de la compagnie détermine les conditions dans lesquelles il peut continuer, sur sa demande, à bénéficier des avantages réservés aux membres de la compagnie.
Article R822-67
Le commissaire aux comptes omis de la liste en application des articles R. 822-63, R. 822-64 et R. 822-66 peut demander sa réinscription selon la procédure prévue à la section 1 du chapitre II du présent titre, à condition d'être à jour de ses cotisations à la date de son omission. Les conditions d'aptitude professionnelle s'apprécient conformément aux dispositions en vigueur au jour de sa première inscription.
Article R822-68
Le titre de commissaire aux comptes honoraire peut être conféré par le conseil régional aux membres de la compagnie dont la démission a été acceptée, qui ont été inscrits sur la liste pendant vingt ans au moins et qui ont eu pendant la durée de leur inscription une activité professionnelle
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jugée suffisante.
Les commissaires aux comptes honoraires restent soumis à la juridiction disciplinaire.
Leurs droits et leurs devoirs sont déterminés par le code de déontologie.
Article R822-69
L'activité de commissaire aux comptes exercée à titre individuel dans les conditions prévues par le présent titre entraîne l'affiliation de celui qui l'exerce à l'organisation autonome d'allocations vieillesse des professions libérales instituées par l'article L. 621-3 du code de la sécurité sociale.
Section 3 : De la responsabilité civile.
Article R822-70
Pour être membre de la compagnie tout commissaire aux comptes doit être couvert par une assurance garantissant la responsabilité prévue à l'article L. 822-17, dans les limites et conditions fixées par arrêté conjoint du garde des sceaux, ministre de la justice, et du ministre de l'économie et des finances.
Article R822-71
L'obligation d'assurance prévue à l'article R. 822-70 est applicable aux sociétés de commissaires aux comptes dans les conditions prévues à l'article R. 822-98.
Section 4 : Des sociétés de commissaires aux comptes
Sous-section 1 : Dispositions communes aux diverses sociétés
Paragraphe 1 : De la constitution, de l'inscription et de l'immatriculation.
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Article R822-72
Si les statuts sont établis par acte sous seing privé, il en est dressé autant d'originaux qu'il est nécessaire pour la remise d'un exemplaire à chaque associé et pour satisfaire aux dispositions du présent titre.
Article R822-73
Le siège des sociétés de commissaires aux comptes est fixé dans le ressort de la compagnie régionale qui compte le plus grand nombre d'actionnaires ou d'associés inscrits sur la liste de la cour d'appel. Si deux ou plusieurs compagnies régionales comptent le même nombre d'actionnaires ou associés, le siège peut être fixé au choix des actionnaires ou associés dans l'une de celles-ci.
Si le plus grand nombre d'actionnaires ou d'associés est inscrit sur la liste d'une autre cour d'appel par suite d'une modification de la détention du capital social, la société dispose d'un délai d'un an pour transférer son siège social et solliciter son inscription auprès de la commission régionale compétente.
Article R822-74
La société est constituée sous la condition suspensive de son inscription sur la liste établie pour le ressort de cour d'appel dans lequel elle a son siège par la commission régionale d'inscription du lieu de son siège social.
Article R822-75
La demande d'inscription d'une société est présentée collectivement par les associés et adressée à la commission régionale dans les conditions prévues à l'article R. 822-10.
Il y est joint :
1° Un exemplaire des statuts ;
2° Une requête de chaque associé sollicitant l'inscription de la société ;
3° La liste des actionnaires ou associés précisant pour chacun d'eux : les nom, prénoms, domicile, l'inscription sur la liste des commissaires aux comptes, et le nombre de titres de capital ou de parts sociales que les actionnaires ou associés détiennent ;
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4° La liste des personnes qui sont membres des organes de gestion, de direction, d'administration ou de surveillance de la société. Les commissaires aux comptes membres des organes de gestion, de direction, d'administration ou de surveillance produisent la justification de leur inscription sur la liste des commissaires aux comptes ;
5° Une attestation du greffier du tribunal de commerce du lieu du siège social constatant le dépôt au greffe de la demande et des pièces nécessaires à l'immatriculation ultérieure de la société au registre du commerce et des sociétés.
Article R822-76
La demande d'inscription d'une société peut être présentée par le représentant légal de la société. La requête signée par le représentant légal de la société accompagnée de la délibération de l'assemblée générale constitutive des actionnaires ou associés autorisant ce représentant à demander l'inscription de la société doivent être jointes à la demande.
Article R822-77
L'enregistrement et la transmission de la demande d'inscription de la société répondent aux conditions prévues à l'article R. 822-10.
Le greffier en chef demande le bulletin n° 2 du casier judiciaire des membres des organes de gestion, de direction, d'administration ou de surveillance qui ne sont pas commissaires aux comptes.
Article R822-78
Une copie de la demande d'inscription est adressée par chacun des associés au président de la compagnie régionale dont il est membre.
Article R822-79
Si une société de commissaires aux comptes transfère son siège hors du ressort de la cour d'appel sur la liste de laquelle elle est inscrite, elle demande sans délai son inscription sur la liste du ressort dans lequel est situé son nouveau siège.
Seules les pièces justificatives relatives aux modifications intervenues depuis la dernière inscription sont exigées.
La décision d'inscription de la société sur la liste du ressort dans lequel est situé son nouveau siège
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est notifiée par le greffe de la cour d'appel au greffe de l'ancienne, qui procède à la radiation.
Article R822-80
La société qui change de ressort de cour d'appel conserve le bénéfice de la date de son inscription initiale.
Article R822-81
L'inscription ne peut être refusée que si les statuts ne sont pas conformes aux dispositions législatives ou réglementaires en vigueur ou si les pièces prévues à l'article R. 822-75 ne sont pas communiquées à la commission.
Le recours contre la décision de la commission est soumis aux conditions énoncées par les articles L. 821-1, L. 821-3 et L. 821-4 et par les articles R. 822-23 à R. 822-31.
Article R822-82
La société de commissaires aux comptes qui se transforme en société de commissaires aux comptes d'une autre forme demande la modification correspondante de son inscription sur la liste. La demande est adressée à la commission régionale d'inscription qui s'assure, avant de procéder à cette modification, de la conformité des nouveaux statuts avec les dispositions législatives et réglementaires régissant la société.
En cas de non-conformité, la commission régionale d'inscription impartit un délai de régularisation. Si la situation n'a pas été régularisée à l'expiration de ce délai, la commission régionale prononce la radiation.
Article R822-83
La société ne peut être immatriculée au registre du commerce et des sociétés et exercer la profession de commissaire aux comptes qu'après son inscription sur la liste.
Article R822-84
La demande d'immatriculation de la société au registre du commerce et des sociétés est établie dans les conditions prévues au livre I.
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L'avis inséré au Bulletin officiel des annonces civiles et commerciales contient les indications prévues à l'article R. 123-157.
Article R822-85
Le secrétaire de la commission régionale d'inscription adresse une ampliation de la décision d'inscription de la société sur la liste au greffe du tribunal où a été déposée la demande d'immatriculation de la société au registre du commerce et des sociétés. La production de cette ampliation justifie que la société dispose de l'autorisation nécessaire à l'exercice de son activité et que les membres disposent eux-mêmes de l'autorisation, des diplômes ou des titres nécessaires à l'exercice de cette activité.
Au reçu de cette ampliation le greffier procède à l'immatriculation de la société.
En cas de refus d'immatriculation de la société il en informe le secrétaire de la commission régionale d'inscription.
Article R822-86
Lorsque la société est immatriculée au registre du commerce et des sociétés, un exemplaire des statuts est déposé par le gérant au siège de la compagnie régionale dont la société est membre, pour être versé au dossier de la société.
Paragraphe 2 : De l'organisation et du fonctionnement.
Article R822-87
Toute cession par l'un des associés de la totalité ou d'une fraction de ses titres de capital ou parts sociales à un tiers en vue de l'exercice de la profession au sein de la société est faite sous la condition suspensive de l'inscription sur la liste du nouvel associé.
Article R822-88
L'un des originaux ou une expédition de l'acte de cession des titres ou parts et, le cas échéant, de l'acte modifiant les statuts de la société est transmis pour information à la commission régionale d'inscription.
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Article R822-89
En cas de retrait ou d'entrée d'associés, d'actionnaires, de membres des organes de gestion, de direction, d'administration ou de surveillance, la société demande à la commission régionale la modification correspondante de son inscription sur la liste.
Si la commission constate que la société, à la suite de l'opération, demeure constituée en conformité avec les dispositions législatives ou réglementaires qui la régissent, notamment l'article L. 822-9, elle modifie en conséquence l'inscription de la société sur la liste.
Dans le cas contraire, la commission régionale impartit un délai de régularisation. Si la situation n'a pas été régularisée à l'expiration de ce délai, elle prononce la radiation de la société.
Cette décision est susceptible de recours de la part de la société concernée, devant le Haut Conseil du commissariat aux comptes, dans les conditions prévues aux articles R. 822-24 et suivants. Ce recours est suspensif.
Paragraphe 3 : De l'exercice de la profession par la société.
Article R822-90
L'appellation de " société de commissaires aux comptes " ne peut être utilisée que par les sociétés membres de la compagnie.
Article R822-91
Sauf dérogation prévue par le présent titre concernant les élections aux conseils et instances de la compagnie, les sociétés membres de la compagnie bénéficient des mêmes droits et sont soumises aux mêmes obligations que les personnes physiques.
Article R822-92
Sous réserve de l'application des dispositions du présent titre, toutes dispositions législatives et réglementaires relatives à l'exercice de la profession de commissaire aux comptes sont applicables aux sociétés et à leurs membres exerçant au sein de la société.
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Article R822-93
Outre les mentions prévues à l'article R. 123-237, dans toutes les correspondances et tous les documents émanant de la société, la raison ou dénomination sociale est accompagnée de la désignation de société de commissaires aux comptes complétée par l'indication de sa forme juridique.
Article R822-94
Tout rapport ou tout document émanant d'une société de commissaires aux comptes dans l'exercice de sa mission légale comporte, indépendamment de la signature sociale, la signature de celui ou de ceux des commissaires aux comptes associés, actionnaires ou dirigeants cette société qui ont participé à l'établissement de ce rapport ou de ce document.
Article R822-95
Dans les actes professionnels, la personne qui exerce les fonctions de commissaire aux comptes au nom de la société indique la raison ou dénomination sociale de la société dont il est membre.
Article R822-96
Les associés ou actionnaires s'informent mutuellement de leur activité au sein de la société. La communication de ces informations entre associés ou actionnaires ne constitue pas une violation du secret professionnel.
Article R822-97
Les registres, répertoires et documents prévus par les textes réglementaires sont ouverts et établis au nom de la société.
Article R822-98
L'obligation d'assurance prévue à l'article R. 822-70 est applicable aux sociétés de commissaires aux comptes, sans préjudice de l'obligation des associés ou des actionnaires, de contracter personnellement une assurance.
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L'assurance de la responsabilité civile professionnelle exigée par le troisième alinéa de l'article 16 de la loi n° 66-879 du 29 novembre 1966 est contractée par la société.
Article R822-99
Sous réserve des articles R. 822-100 et R. 822-101, les dispositions de la sous-section 2 relative à la discipline des commissaires aux comptes sont applicables à la société et aux actionnaires ou associés.
La société peut faire l'objet de poursuites disciplinaires indépendamment de celles qui seraient intentées contre les actionnaires ou associés.
Article R822-100
Les statuts peuvent prévoir que tout actionnaire ou associé condamné à la sanction disciplinaire de l'interdiction temporaire pour une durée égale ou supérieure à trois mois, est contraint, par l'unanimité des autres actionnaires ou associés, de se retirer de la société. Lorsqu'il s'agit d'une société civile professionnelle, ses parts sociales sont alors cédées dans les conditions prévues à l'article R. 822-128. Lorsqu'il s'agit d'une autre société de commissaires aux comptes, l'actionnaire ou l'associé dispose d'un délai de six mois à compter du jour où la décision prononçant son exclusion lui a été notifiée, pour céder tout ou partie de ses parts ou titres de capital afin de maintenir la part de capital détenue par les commissaires aux comptes.
L'actionnaire ou associé interdit temporairement ou suspendu provisoirement par le garde des sceaux conserve, en dépit de son incapacité à exercer toute activité professionnelle de commissaire aux comptes, sa qualité d'actionnaire ou d'associé avec tous les droits et obligations qui en découlent. Il ne perçoit dans ce cas que la rémunération de ses titres de capital.
Toutefois, lorsqu'il est membre de l'organe de gestion, de direction, d'administration ou de surveillance d'une société de commissaire aux comptes, il ne peut pas exercer ses fonctions au sein de l'un de ces organes pendant la durée de la mesure de suspension ou d'interdiction dont il est l'objet.
Article R822-101
L'actionnaire ou associé radié de la liste cesse d'exercer son activité professionnelle de commissaire aux comptes à compter du jour où la décision prononçant la radiation est définitive. Lorsqu'il s'agit d'une société civile professionnelle, ses parts sociales sont cédées dans les conditions fixées à l'article R. 822-127. Lorsqu'il s'agit d'une autre société de commissaires aux comptes, l'actionnaire ou l'associé dispose d'un délai de six mois à compter du jour où la radiation est devenue définitive, pour céder tout ou partie de ses parts afin de maintenir la part de capital détenue par les commissaires aux comptes.
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Article R822-102
Sous réserve des règles de protection et de représentation des majeurs protégés par la loi, les dispositions des articles R. 822-101 et R. 822-127 sont applicables à la cession des titres de capital ou parts sociales de l'associé frappé d'interdiction légale ou placé sous le régime de la tutelle.
Paragraphe 4 : De la dissolution et de la liquidation.
Article R822-103
La société prend fin à l'expiration du temps pour lequel elle a été constituée. Toutefois, la dissolution anticipée peut être décidée par les trois quarts au moins des associés disposant ensemble des trois quarts des voix.
Article R822-104
La société est dissoute de plein droit par le décès simultané de tous les associés ou par le décès du dernier survivant des associés si tous sont décédés successivement, sans qu'à la date du décès du dernier d'entre eux, les parts sociales ou les titres de capital des autres aient été cédés à des tiers.
Article R822-105
La liquidation est régie par les statuts, sous réserve des dispositions du code civil, et de celles du livre II et du présent paragraphe du présent code.
Article R822-106
Sauf en cas de radiation de la société, le liquidateur peut être choisi parmi les associés. Les fonctions de liquidateur ne peuvent être confiées à un commissaire aux comptes ayant fait l'objet d'une mesure disciplinaire.
Article R822-107
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Plusieurs liquidateurs peuvent être désignés.
L'acte de nomination du liquidateur, quelle que soit sa forme, est adressé par ce dernier à la commission régionale d'inscription des commissaires aux comptes.
La décision judiciaire ou la décision de l'assemblée des associés qui nomme le liquidateur fixe sa rémunération.
Article R822-108
Le liquidateur informe la commission régionale de la clôture de la liquidation.
Sous-section 2 : Dispositions applicables aux sociétés civiles professionnelles
Paragraphe 1 : De la constitution.
Article R822-109
Deux ou plusieurs commissaires aux comptes peuvent constituer entre eux une société civile professionnelle, pour l'exercice en commun de leur profession.
Cette société reçoit l'appellation de société civile professionnelle de commissaires aux comptes.
Article R822-110
Les statuts satisfont aux prescriptions des articles 8, 11, 14, 15, 19, 20 et 24 de la loi n° 66-879 du 29 novembre 1966. Ils indiquent en outre :
1° Les nom, prénoms et domicile de chaque associé ;
2° La durée pour laquelle la société est constituée ;
3° L'adresse du siège social ;
4° La nature et l'évaluation distincte de chacun des apports faits par les associés ;
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5° Le montant du capital social, le montant, le nombre et la répartition des parts sociales représentatives de ce capital ;
6° Le nombre des parts d'intérêts attribuées à chaque apporteur en industrie ;
7° L'affirmation de la libération totale ou partielle, selon le cas, des apports concourant à la formation du capital social.
Article R822-111
Par application de l'article 11 de la loi n° 66-879 du 29 novembre 1966, les statuts organisent la gérance et déterminent les pouvoirs des gérants.
Article R822-112
Peuvent être apportés en société, en propriété ou en jouissance :
1° Tous droits incorporels, mobiliers ou immobiliers ;
2° Tous documents et archives et, d'une manière générale, tous objets mobiliers à usage professionnel ;
3° Les immeubles ou locaux utiles à l'exercice de la profession ;
4° Toutes sommes en numéraire ;
5° L'industrie des associés, laquelle en vertu de l'article 10 de la loi n° 66-879 du 29 novembre 1966 ne concourt pas à la formation du capital mais peut donner lieu à l'attribution de parts en industrie.
Article R822-113
Les parts sociales ne peuvent être données en nantissement.
Les parts en industrie attribuées aux apporteurs en industrie sont incessibles et sont annulées lorsque leur titulaire perd sa qualité d'associé pour quelque cause que ce soit.
Article R822-114
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Les parts sociales représentant un apport en numéraire doivent être libérées, lors de la souscription, de la moitié au moins de leur montant nominal.
La libération du surplus doit intervenir, en une ou plusieurs fois, soit aux dates prévues par les statuts, soit sur décision de l'assemblée des associés et au plus tard dans le délai de deux ans à compter de l'inscription de la société sur la liste.
Dans les huit jours de leur réception, les fonds provenant de la libération des apports en numéraire sont déposés, pour le compte de la société, à la Caisse des dépôts et consignations, chez un notaire ou dans un établissement de crédit. Le retrait de ces fonds est effectué par le mandataire de la société sur justification de l'inscription de celle-ci sur la liste.
Article R822-115
Par dérogation aux articles 22, 24 et 26 du décret n° 78-704 du 3 juillet 1978 relatif à l'application de la loi n° 78-9 du 4 janvier 1978 modifiant le titre IX du livre III du code civil, la société est dispensée d'insérer dans un journal habilité à recevoir des annonces légales les avis prévus auxdits articles.
Paragraphe 2 : De l'organisation et du fonctionnement.
Article R822-116
Les décisions qui excèdent les pouvoirs des gérants sont prises par les associés réunis en assemblée.
L'assemblée est réunie au moins une fois par an. Elle est aussi réunie lorsque plusieurs associés, représentant au moins la moitié en nombre et le quart en capital, en font la demande, en indiquant l'ordre du jour.
Les modalités de convocation de l'assemblée sont fixées par les statuts.
Article R822-117
Toute délibération de l'assemblée donne lieu à l'établissement d'un procès-verbal signé par les associés présents qui contient notamment, la date et le lieu de la réunion, les questions inscrites à l'ordre du jour, l'identité des associés présents ou représentés, un résumé des débats, le texte des résolutions mises aux voix et le résultat des votes.
Les procès-verbaux sont établis sur un registre spécial préalablement coté et paraphé par le greffier
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chargé de la tenue du registre où est immatriculée la société et conservé au siège social.
Article R822-118
Les statuts fixent le nombre des voix dont dispose chaque associé.
Un associé peut donner mandat écrit à un autre associé de le représenter à l'assemblée.
L'assemblée ne délibère valablement que si les trois quarts au moins des associés sont présents ou représentés. Si ce quorum n'est pas atteint, les associés sont convoqués une nouvelle fois et l'assemblée délibère valablement si deux associés au moins sont présents.
Article R822-119
Sous réserve des dispositions de la loi n° 66-879 du 29 novembre 1966 et du présent paragraphe imposant des conditions spéciales de majorité, les décisions sont prises à la majorité des voix dont disposent les associés présents ou représentés.
Toutefois, les statuts peuvent prévoir une majorité plus forte ou même l'unanimité des associés pour toutes les décisions ou seulement pour celles qu'ils énumèrent.
Article R822-120
La modification des statuts et la prorogation de la société sont décidées à la majorité des trois quarts des voix dont dispose l'ensemble des associés présents ou représentés.
Article R822-121
Après la clôture de chaque exercice, les gérants établissent, dans les conditions fixées par les statuts, les comptes annuels de la société et un rapport sur les résultats de celle-ci.
Les documents mentionnés à l'alinéa précédent sont soumis à l'approbation de l'assemblée des associés dans le délai de six mois qui suit la clôture de chaque exercice. A cette fin, ils sont adressés à chaque associé, avec le texte des résolutions proposées, quinze jours au moins avant la réunion de l'assemblée et, au plus tard, avec la convocation de cette assemblée.
Article R822-122
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Chaque associé peut, à toute époque, prendre connaissance par lui-même des rapports et comptes sociaux concernant les exercices antérieurs, des registres de procès-verbaux, des dossiers et documents établis conformément à l'article R. 823-10, et plus généralement de tous documents détenus par la société.
Article R822-123
Si les réserves constituées au moyen de bénéfices non distribués ou de plus-values d'actif dues à l'industrie des associés le permettent, il est procédé périodiquement à l'augmentation du capital social. Les parts sociales créées à cet effet sont réparties entre les associés, y compris ceux qui n'ont apporté que leur industrie. Les statuts fixent les conditions d'application du présent alinéa.
Le capital ne peut être augmenté par incorporation de réserves avant la libération intégrale des parts sociales souscrites en numéraire.
Article R822-124
Un associé ne peut céder tout ou partie de ses parts sociales à un tiers étranger à la société que si le cessionnaire est préalablement agréé par la société dans les conditions prévues au premier alinéa de l'article 19 de la loi n° 66-879 du 29 novembre 1966.
Le projet de cession est notifié à la société et à chacun des associés, soit dans les formes prévues par l'article 1690 du code civil, soit par lettre recommandée avec demande d'avis de réception.
Article R822-125
Si la société refuse d'agréer le cessionnaire, elle notifie, dans le délai de six mois à compter de la notification de son refus, dans les formes prévues à l'article précédent, dans les mêmes formes à l'associé qui persiste dans son intention de céder ses parts sociales, un projet de cession conformément aux dispositions du troisième alinéa de l'article 19 de la loi n° 66-879 du 29 novembre 1966. Cette notification implique un engagement du cessionnaire ou de la société qui se porte acquéreur.
Si le prix proposé pour la cession n'est pas accepté par le cédant, il est fixé conformément aux dispositions de l'article 1843-4 du code civil.
Article R822-126
Lorsqu'un associé entend se retirer de la société en application de l'article 21 de la loi n° 66-879 du 29 novembre 1966, il notifie sa décision à la société dans l'une des formes prévues à l'article R. 822-124.
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La société dispose de six mois à compter de cette notification pour notifier à l'associé, dans la même forme, un projet de cession de ses parts à un tiers ou à un associé ou un projet de rachat des parts par la société. Cette notification implique un engagement du cessionnaire ou de la société qui se porte acquéreur.
Si le prix proposé pour la cession ou le rachat n'est pas accepté par le cédant, il est fixé conformément aux dispositions de l'article 1843-4 du code civil.
Article R822-127
L'associé qui est personnellement radié de la liste dispose d'un délai de six mois à compter du jour où sa radiation est devenue définitive pour céder ses parts sociales, soit à un tiers dans les conditions prévues aux articles R. 822-87 et R. 822-124, soit aux associés ou à l'un ou plusieurs d'entre eux, soit à la société.
Si à l'expiration de ce délai aucune cession n'est intervenue, il est procédé conformément aux dispositions de l'article R. 822-125.
Si l'associé refuse de signer l'acte de cession de ses parts sociales qui lui est proposé, il est exclu de plein droit de la société, deux mois après la sommation dans l'une des formes prévues à l'article R. 822-124, à lui faite par la société et demeurée infructueuse. Le prix de cession des parts est consigné à la diligence du cessionnaire.
Article R822-128
Les dispositions de l'article R. 822-127 sont applicables à la cession des parts sociales de l'associé dont l'exclusion de la société a été décidée pour condamnation dans les conditions prévues à l'article R. 822-100. Le délai imparti à l'associé exclu pour céder ses parts court du jour où la décision des autres associés prononçant son exclusion lui a été notifiée dans l'une des formes prévues à l'article R. 822-124.
Article R822-129
Le délai prévu par le deuxième alinéa de l'article 24 de la loi n° 66-879 du 29 novembre 1966 pour la cession des parts de l'associé décédé est fixé à un an à compter du décès de l'associé.
Il peut être renouvelé par le président de la compagnie régionale, à la demande des ayants droit de l'associé décédé et avec le consentement de la société donné dans les conditions prévues pour la cession des parts sociales par le premier alinéa de l'article 19 de la même loi.
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Article R822-130
Si, pendant le délai prévu à l'article précédent, les ayants droit décident de céder les parts sociales de leur auteur à un tiers étranger à la société, il est procédé conformément aux dispositions des articles R. 822-87, R. 822-124, et R. 822-125.
Article R822-131
Toute demande d'un ou plusieurs ayants droit d'un associé décédé tendant à l'attribution préférentielle à leur profit des parts sociales de leur auteur est notifiée à la société et à chacun des associés dans l'une des formes prévues par l'article R. 822-124.
Les modalités de cette attribution sont régies par l'article R. 822-87 et, le cas échéant, par celles de l'article R. 822-125.
Article R822-132
Lorsqu'à l'expiration du délai prévu à l'article R. 822-129, les ayants droit de l'associé décédé n'ont pas exercé la faculté de céder les parts sociales de leur auteur et si aucun consentement préalable à l'attribution préférentielle n'a été donné par la société, celle-ci dispose de six mois pour acquérir ou faire acquérir les parts sociales de l'associé décédé. En cas de litige, il est fait application des dispositions de l'article 1843-4 du code civil.
Article R822-133
La publicité de la cession des parts est accomplie conformément aux dispositions de l'article 52 du décret n° 78-704 du 3 juillet 1978. Dans le cas prévu au troisième alinéa de l'article R. 822-127, la publicité de la cession est accomplie par le dépôt, dans les mêmes conditions, de deux copies certifiées conformes de la sommation adressée au cédant, accompagnées de la justification de la sommation ou de la signification de cette sommation.
Paragraphe 3 : De la dissolution et de la liquidation.
Article R822-134
S'il ne subsiste qu'un seul associé, celui-ci peut, dans le délai d'un an, céder une partie de ses parts
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sociales à un tiers inscrit sur la liste.
A défaut, la société est dissoute à la date d'expiration du délai.
Sous-section 3 : Dispositions applicables aux sociétés autres que les sociétés civiles professionnelles.
Article R822-135
Les sociétés de commissaires aux comptes autres que les sociétés civiles professionnelles sont soumises aux dispositions des sous-sections 1 et 3 de la présente section.
Article R822-136
Les sociétés d'exercice libéral à responsabilité limitée, à forme anonyme ou par actions simplifiées de commissaires aux comptes sont régies par les dispositions du livre II du présent code, sous réserve des dispositions des sous-sections 1 et 3 de la présente section.
Article R822-137
Un ou plusieurs commissaires aux comptes inscrits peuvent constituer entre eux une société d'exercice libéral, dans les conditions prévues à l'article L. 822-9 et à l'article 5 de la loi n° 90-1258 du 31 décembre 1990, avec les personnes mentionnées à cet article.
Article R822-138
Toute personne physique ou morale peut détenir un quart au plus du capital des sociétés mentionnées au titre Ier de la loi n° 90-1258 du 31 décembre 1990.
Article R822-139
En dehors des pièces mentionnées à l'article R. 822-75 la demande d'inscription présentée par une société d'exercice libéral est assortie de la liste des actionnaires ou associés n'ayant pas la qualité de commissaire aux comptes, précisant pour chacun d'eux : les noms, prénoms, domicile, profession ainsi que leurs fonctions dans la société et le nombre de titres de capital ou de parts sociales que ces
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actionnaires ou associés détiennent.
La liste prévue au 4° de l'article R. 822-75 est complétée pour chacune des personnes mentionnées de l'indication de leur qualité de commissaire aux comptes.
Article R822-140
L'assemblée des associés ne délibère valablement que si les trois quarts au moins des associés sont présents ou représentés. Si ce quorum n'est pas atteint, les associés sont convoqués une nouvelle fois avec le même ordre du jour et l'assemblée délibère valablement si deux associés au moins sont présents.
Article R822-141
Sous réserve des dispositions de la loi n° 90-1258 du 31 décembre 1990 et de la présente section imposant des conditions spéciales de majorité, les décisions sont prises à la majorité des voix dont disposent les associés présents ou représentés.
Toutefois, les statuts peuvent prévoir une majorité plus forte pour toutes les décisions ou seulement pour celles qu'ils énumèrent.
Article R822-142
La modification des statuts et la prorogation de la société sont décidées à la majorité des trois quarts des voix dont dispose l'ensemble des associés présents ou représentés.
Article R822-143
Le consentement de la société, requis pour la cession par l'un des associés de la totalité ou d'une fraction de ses titres de capital ou parts sociales à un tiers en vue de l'exercice de la profession au sein de la société, est acquis dans les conditions prévues par les articles L. 223-14 et L. 228-24 et 10 de la loi n° 90-1258 du 31 décembre 1990.
Article R822-144
Le liquidateur peut être remplacé pour cause d'empêchement ou pour motif grave sur décision du président du tribunal de grande instance du lieu du siège social de la société, statuant en référé, à la demande soit du liquidateur lui-même, soit des associés, des actionnaires ou de leurs ayants droit.
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Sous-section 4 : Dispositions applicables aux sociétés en participation.
Article R822-145
Les articles 1871 à 1873 du code civil relatifs aux sociétés en participation sont applicables à la profession de commissaire aux comptes dans les conditions prévues par la présente sous-section.
Article R822-146
La constitution d'une société en participation donne lieu à l'insertion d'un avis dans un journal habilité à recevoir les annonces légales au siège de la société, s'il en existe un, ou au lieu d'exercice de chacun des associés. L'avis contient la dénomination, l'objet et, le cas échéant, l'adresse du siège de la société.
Article R822-147
L'appartenance à la société, avec la dénomination de celle-ci, doit être indiquée dans les actes professionnels et les correspondances de chaque associé.
Article R822-148
Les dispositions de la sous-section 1 relative aux dispositions communes aux sociétés de commissaires aux comptes ne sont pas applicables aux sociétés en participation.
Chapitre III : De l'exercice du contrôle légal
Section 1 : De la nomination, de la récusation et de la révocation des commissaires aux comptes.
Article R823-1
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Tout commissaire aux comptes qui accepte que sa candidature soit présentée à l'assemblée générale d'une société ou à l'organe délibérant compétent d'une entité dont les titres financiers sont admis aux négociations sur un marché réglementé en informe l'Autorité des marchés financiers par lettre recommandée avec avis de réception avant la tenue de l'assemblée générale ou la réunion de l'organe délibérant compétent.
Si sa candidature est proposée par la société, dans un projet de résolution présenté conformément à l'article R. 225-73, l'Autorité des marchés financiers doit en être avisée quinze jours au moins avant la publication au Bulletin des annonces légales obligatoires prévue au premier alinéa dudit article R. 225-73.
Lorsqu'une candidature appelle des réserves de la part de l'Autorité des marchés financiers et que les dirigeants de la société ou de l'entité entendent passer outre, ces derniers communiquent aux actionnaires ou aux membres de l'organe délibérant compétent, avant la tenue de l'assemblée générale ou la réunion de l'organe délibérant appelé à se prononcer sur cette candidature, l'avis motivé de l'Autorité. Cet avis est également communiqué au Conseil national de la Compagnie nationale des commissaires aux comptes et au conseil régional de la compagnie régionale dont est membre le commissaire en cause.
Les dispositions du présent article ne sont pas applicables aux établissements de crédit, aux compagnies financières et aux entreprises d'investissement soumises au contrôle de l'Autorité de contrôle prudentiel, ainsi qu'à leurs commissaires aux comptes.
Article R823-2
Tout commissaire aux comptes chargé du contrôle d'une personne ou entité notifie dans le délai de huit jours sa nomination au conseil régional de la compagnie dont il est membre, soit par lettre recommandée avec demande d'avis de réception soit par voie électronique. Dans ce dernier cas, le conseil régional accuse sans délai réception de la notification en mentionnant la date de la réception. Le conseil régional communique l'information au Conseil national.
Si le commissaire aux comptes ou la société de commissaire aux comptes à laquelle il appartient transfère son domicile ou son siège hors du ressort de la cour d'appel sur la liste de laquelle il est inscrit, il renouvelle cette déclaration de mandat au conseil régional de sa nouvelle compagnie régionale de rattachement, dans les formes prévues à l'alinéa précédent.
Article R823-3
Dans les cas prévu par l'article L. 823-4, le commissaire aux comptes est désigné par le président du tribunal de commerce, statuant en référé.
Article R823-4
La communication aux commissaires aux comptes des documents détenus par les tiers, prévue à l'article L. 823-14, est autorisée par le président du tribunal de commerce, statuant en référé.
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Article R823-5
Dans les cas prévus aux articles L. 823-6 et L. 823-7, le tribunal de commerce statue en la forme des référés sur la récusation ou le relèvement de fonctions d'un commissaire aux comptes. La demande de récusation ou de relèvement de fonctions est formée contre le commissaire aux comptes et la personne ou l'entité auprès de laquelle il a été désigné. La demande de récusation du commissaire aux comptes est présentée dans les trente jours de sa désignation.
Lorsque la demande émane du procureur de la République, elle est présentée par requête ; lorsqu'elle émane de l'Autorité des marchés financiers, elle est faite par lettre recommandée avec demande d'avis de réception.
Le délai d'appel est de quinze jours. L'appel est formé et jugé selon les règles applicables à la procédure abrégée ou à la procédure à jour fixe.
Lorsque le commissaire aux comptes est relevé de ses fonctions, il est remplacé par le commissaire aux comptes suppléant.
Article R823-6
Si un membre de la compagnie est relevé de ses fonctions de commissaire aux comptes en application de l'article L. 823-7, le greffier de la juridiction qui a rendu la décision en informe le conseil régional dans le délai de huit jours par lettre recommandée avec demande d'avis de réception.
Le conseil régional en informe sans délai la Compagnie nationale, le Haut Conseil du commissariat aux comptes, les personnes contrôlées et les commissaires aux comptes suppléants.
Il en va de même en cas de récusation prononcée sur le fondement de l'article L. 823-6.
Section 2 : De la mission du commissaire aux comptes.
Article R823-7
Dans leur rapport à l'assemblée générale ordinaire, les commissaires aux comptes :
1° Déclarent :
a) Soit certifier que les comptes de l'exercice et les comptes consolidés sont réguliers et sincères et
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qu'ils donnent une image fidèle du résultat des opérations de l'exercice écoulé ainsi que de la situation financière et du patrimoine de la personne ou de l'entité et de l'ensemble des entreprises comprises dans la consolidation à la fin de l'exercice, en formulant, s'il y a lieu, toutes observations utiles ;
b) Soit assortir la certification de réserves ;
c) Soit refuser la certification des comptes.
2° Font état de leurs observations sur la sincérité et la concordance avec les comptes annuels des informations données dans le rapport de gestion de l'exercice et dans les documents adressés aux actionnaires sur la situation financière de la société et de l'ensemble des entreprises comprises dans la consolidation ainsi que sur les comptes annuels et les comptes consolidés.
3° Attestent spécialement l'exactitude et la sincérité des informations mentionnées aux trois premiers alinéas de l'article L. 225-102-1.
Dans les cas mentionnés aux b et c du 1°, les commissaires aux comptes précisent les motifs de leurs réserves ou de leur refus.
Article R823-7-1
Pour l'application de l'article L. 823-12-1 relatif à la norme d'exercice professionnel spécifique aux sociétés en nom collectif, aux sociétés en commandite simple, aux sociétés à responsabilité limitée et aux sociétés par actions simplifiées, le total du bilan est fixé à 1 550 000 €, le montant hors taxe du chiffre d'affaires à 3 100 000 € et le nombre moyen de salariés permanents employés au cours de l'exercice à cinquante. Le total du bilan, le montant hors taxe du chiffre d'affaires et le nombre moyen de salariés sont déterminés conformément aux quatrième, cinquième et sixième alinéas de l'article R. 123-200.
Article D823-7-1
Pour l'application du deuxième alinéa de l'article L. 441-6-1, les commissaires aux comptes présentent, dans le rapport mentionné à l'article R. 823-7, leurs observations sur la sincérité et la concordance avec les comptes annuels des informations mentionnées à l'article D. 441-4.
Section 3 : Des modalités d'exercice de la mission.
Article R823-8
Si plusieurs commissaires aux comptes sont en fonction, ils peuvent procéder séparément à leurs investigations, vérifications et contrôles, mais ils établissent un rapport commun.
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En cas de désaccord entre les commissaires, le rapport indique les différentes opinions exprimées.
Article R823-9
Les commissaires aux comptes sont convoqués à toute assemblée d'actionnaires ou d'associés ou à toutes réunions de l'organe compétent au plus tard lors de la convocation des actionnaires, associés ou membres de cet organe.
Ils sont convoqués, s'il y a lieu, aux réunions des organes collégiaux d'administration ou de direction et de l'organe de surveillance, selon le cas, en même temps que ces organes.
La convocation des commissaires aux comptes est faite par lettre recommandée avec demande d'avis de réception.
Article R823-10
Le commissaire aux comptes tient à jour la liste des personnes et des entités auprès desquelles il exerce ses fonctions. Les sociétés de commissaires aux comptes tiennent cette liste par commissaire aux comptes exerçant le commissariat aux comptes en leur nom.
Le commissaire aux comptes constitue pour chaque personne ou entité contrôlée un dossier contenant tous les documents reçus de celle-ci, ceux qui sont établis par lui et notamment le plan de mission, le programme de travail, la date, la durée, le lieu, l'objet de son intervention, ainsi que toutes autres indications permettant le contrôle ultérieur des travaux accomplis.
Il établit une comptabilité spéciale de l'ensemble des rémunérations. Cette comptabilité fait ressortir pour chaque personne ou entité contrôlée le montant des sommes reçues en distinguant les honoraires, le remboursement des frais de déplacement et de séjour et la rémunération pour les activités professionnelles à l'étranger.
Il établit chaque année en double exemplaire une déclaration d'activité comportant les informations mentionnées au 2° de l'article R. 821-68 qu'il adresse, le cas échéant par voie électronique, à la compagnie régionale, laquelle transmet un exemplaire à la Compagnie nationale.
Article R823-11
Les travaux du ou des commissaires aux comptes font l'objet d'un plan de mission et d'un programme de travail annuels, établis par écrit, qui tiennent compte de la forme juridique de la personne ou de l'entité contrôlée, de sa taille, de la nature de ses activités, du contrôle éventuellement exercé par l'autorité publique, de la complexité de la mission, de la méthodologie et des technologies spécifiques utilisées par le ou les commissaires aux comptes.
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Le plan de mission décrit l'approche générale des travaux.
Le programme de travail définit la nature et l'étendue des diligences estimées nécessaires, au cours de l'exercice, à la mise en oeuvre du plan, compte tenu des prescriptions légales et des normes d'exercice professionnel ; il indique le nombre d'heures de travail affectées à l'accomplissement de ces diligences et les honoraires correspondants.
Le plan de mission et le programme de travail sont versés au dossier prévu au deuxième alinéa de l'article R. 823-10.
Article R823-12
Les diligences estimées nécessaires à l'exécution du programme de travail doivent comporter pour un exercice, en fonction du montant du bilan de la personne ou de l'entité, augmenté du montant des produits d'exploitation et des produits financiers, hors TVA, un nombre d'heures de travail normalement compris entre les chiffres suivants :
Montant total du bilan et des produits d'exploitation et des produits financiers, hors taxes, et nombre normal d'heures de travail :
- jusqu'à 305 000 euros : 20 à 35 heures ;
- de 305 000 à 760 000 euros : 30 à 50 heures ;
- de 760 000 à 1 525 000 euros : de 40 à 60 heures ;
- de 1 525 000 à 3 050 000 euros : 50 à 80 heures ;
- de 3 050 000 à 7 622 000 euros : 70 à 120 heures ;
- de 7 622 000 à 15 245 000 euros : 100 à 200 heures ;
- de 15 245 000 à 45 735 000 euros : 180 à 360 heures ;
- de 45 735 000 à 122 000 000 euros : 300 à 700 heures.
Article R823-13
Lorsqu'au cours de la procédure d'alerte l'appréciation par le commissaire aux comptes du caractère satisfaisant de la réponse des dirigeants ou des décisions prises par eux rend nécessaires des diligences particulières, le nombre d'heures prévu par le programme de travail peut être augmenté
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au plus d'un tiers.
Article R823-14
Si le nombre d'heures de travail normalement nécessaires à la réalisation du programme de travail du ou des commissaires aux comptes apparaît excessif ou insuffisant, le président de la compagnie régionale est saisi par la partie la plus diligente d'une demande de dérogation aux nombres indiqués à l'article R. 823-12. Cette demande indique le nombre d'heures estimées nécessaires et les motifs de la dérogation demandée. Elle est présentée préalablement à la réalisation de la mission. L'autre partie fait connaître son avis.
Le président de la compagnie régionale rend sa décision dans les quinze jours de la demande. Cette décision peut faire l'objet d'un recours devant la chambre régionale de discipline qui est saisie et statue dans les conditions prévues à l'article R. 823-18.
Cette procédure ne s'applique pas si le dépassement des limites fixées aux articles R. 823-12 et R. 823-13 recueille l'accord des parties.
Article R823-15
Le montant de la vacation horaire est fixé d'un commun accord entre le ou les commissaires aux comptes et la personne ou l'entité contrôlée, préalablement à l'exercice de la mission.
Les frais de déplacement et de séjour engagés par les commissaires aux comptes dans l'exercice de leurs fonctions sont remboursés par la personne ou l'entité, sur justification.
Article R823-16
Les dispositions de l'article R. 823-12 ne s'appliquent pas à la rémunération de chaque activité ou mission prévue au deuxième alinéa de l'article L. 823-9.
Article R823-17
Les dispositions des articles R. 823-12 et R. 823-13 ne sont pas applicables aux :
1° Personnes et entités dont le montant du bilan augmenté du montant des produits d'exploitation et des produits financiers, hors taxes, excède 122 000 000 euros ;
2° Personnes et entités qui émettent des valeurs mobilières admises aux négociations sur un marché réglementé ;
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3° Entreprises régies par le code des assurances et le code de la mutualité ;
4° Etablissements de crédit et compagnies financières régis par le code monétaire et financier ;
5° Sociétés d'investissement régies par l'ordonnance n° 45-2710 du 2 novembre 1945 relative aux sociétés d'investissement ;
6° Sociétés de développement régional régies par l'article R. 516-21 du code monétaire et financier ;
7° Associations et fondations lorsqu'elles sont tenues ou lorsqu'elles décident d'avoir un commissaire aux comptes ;
8° Sociétés d'économie mixte de construction régies par l'article L. 321-1 du code de l'urbanisme ;
9° Organismes d'habitation à loyer modéré soumis aux règles de la comptabilité des entreprises de commerce régis par les articles L. 411-2 et suivants du code de la construction et de l'habitation ;
10° Organismes mentionnés à l'article L. 114-8 du code de la sécurité sociale ;
11° Institutions et organismes régis par le livre IX du code de la sécurité sociale ;
12° Administrateurs et mandataires judiciaires ;
13° Syndicats professionnels de salariés ou d'employeurs et leurs unions, et associations de salariés ou d'employeurs mentionnés à l'article L. 2135-1 du code du travail .
Le montant des honoraires est alors fixé d'un commun accord entre le commissaire aux comptes et la personne ou l'entité, eu égard à l'importance effective du travail nécessaire à l'accomplissement de la mission légale de contrôle.
Article R823-18
En cas de désaccord entre le ou les commissaires aux comptes et les dirigeants de la personne ou de l'entité contrôlée sur le montant de la rémunération, le président de la compagnie régionale, saisi par écrit par la partie intéressée, s'efforce de concilier les parties.
Lorsque les commissaires aux comptes sont inscrits auprès de compagnies régionales distinctes, la tentative de conciliation est conduite par le président de la compagnie régionale qui a été saisi le premier.
A défaut d'une conciliation intervenue dans le mois de la demande, la partie la plus diligente dispose, à l'expiration de ce délai, d'un délai de quinze jours pour saisir du litige la chambre régionale de discipline par lettre recommandée avec demande d'avis de réception adressée au président de cette chambre.
Le secrétaire de la chambre cite les parties à comparaître devant la chambre régionale quinze jours au moins avant l'audience par lettre recommandée avec demande d'avis de réception.
Le secrétaire notifie la décision de la chambre aux intéressés par lettre recommandée avec demande d'avis de réception.
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Article R823-19
Le Haut Conseil du commissariat aux comptes statuant sur l'appel des décisions rendues par la chambre régionale de discipline en application des articles R. 823-14 et R. 823-18 est saisi dans le délai d'un mois à compter de la notification de la décision attaquée, par lettre recommandée avec demande d'avis de réception adressée au président de la chambre.
Le secrétaire du Haut Conseil du commissariat aux comptes cite les parties à comparaître devant le Haut Conseil quinze jours au moins avant l'audience, par lettre recommandée avec demande d'avis de réception.
Le secrétaire notifie la décision aux intéressés par lettre recommandée avec demande d'avis de réception et contre émargement ou récépissé au magistrat chargé du ministère public.
Article R823-20
La décision rendue par le Haut Conseil en matière d' honoraires peut faire l' objet d' un pourvoi devant la Cour de cassation à l' initiative des intéressés ou du magistrat chargé du ministère public, dans les conditions fixées aux articles 612 et suivants du code de procédure civile.
Article R823-21
Les commissaires aux comptes désignés auprès de personnes ou d'entités dont les titres financiers sont admis aux négociations sur un marché réglementé ou auprès d'établissements de crédit publient sur leur site internet, dans les trois mois suivant la clôture de l'exercice, un rapport de transparence incluant notamment :
a) Une description de la forme juridique et, le cas échéant, du capital de leur structure d'exercice professionnel ;
b) Le cas échéant, une description du réseau auquel ils appartiennent indiquant notamment sa forme juridique et son organisation ;
c) Une description du système interne de contrôle de qualité accompagné, le cas échéant, d'une déclaration de l'organe d'administration ou de direction concernant l'efficacité de son fonctionnement ;
d) La date du dernier contrôle mentionné à l'article R. 821-26 ;
e) La liste des personnes ou entités mentionnées au premier alinéa pour lesquelles le cabinet a
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effectué une mission de contrôle légal des comptes au cours de l'exercice écoulé ;
f) Une déclaration concernant les pratiques d'indépendance mises en place au sein du cabinet confirmant qu'une vérification interne de cette indépendance a été effectuée ;
g) Une déclaration relative à la politique suivie par le cabinet en matière de formation continue, attestant notamment le respect des dispositions de l'article L. 822-4 et de l'article R. 822-61 ;
h) L'ensemble des informations financières pertinentes permettant d'apprécier l'activité du cabinet, notamment le chiffre d'affaires total, le montant global des honoraires perçus au titre des missions de contrôle légal des comptes et le montant global des honoraires perçus au titre des prestations de services non directement liées à des missions de contrôle légal des comptes.
Le rapport de transparence des sociétés de commissaires aux comptes désignés auprès des personnes mentionnées au premier alinéa comprend en outre :
i) Une description des organes de direction, d'administration et de surveillance de leur structure d'exercice professionnel, avec l'indication de leurs modalités d'organisation et de fonctionnement ;
j) Des informations sur les bases de rémunération des associés.
Le rapport de transparence est signé par le commissaire aux comptes ou le représentant légal de la société de commissaires aux comptes.
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Partie réglementaire
LIVRE IX : Dispositions relatives à l'outre-mer.
TITRE Ier : Dispositions spécifiques à Saint-pierre-et-Miquelon.
Article R910-1
Ne sont pas applicables à Saint-Pierre-et-Miquelon les dispositions suivantes :
1° Les articles R. 121-3, R. 121-4, R. 123-209 à R. 123-219, D. 145-12 à D. 145-19, D. 146-1 et D. 146-2 ;
2° Les articles R. 229-1 à R. 229-26 et R. 252-1 ;
3° Les articles R. 470-2 à R. 470-7 ;
4° Les articles R. 522-1 à R. 522-25 ;
5° Les articles R. 670-1 à R. 670-7 ;
6° Les articles R. 711-6, R. 711-18 à R. 711-53, R. 712-21 à R. 712-24, R. 713-31 à R. 713-63, D. 721-2 à R. 721-4 et R. 721-7 à R. 761-26 .
Article R910-2
Pour l'application du présent code à Saint-Pierre-et-Miquelon, les termes énumérés ci-après sont remplacés comme suit :
1° " Tribunal de grande instance " ou " tribunal d'instance " par " tribunal de première instance " ;
2° " Cour d'appel " par " tribunal supérieur d'appel " ;
3° " Tribunal de commerce " ou " justice consulaire " par " tribunal de première instance statuant en matière commerciale " ;
4° " Premier président de la cour d'appel " par " président du tribunal supérieur d'appel " ;
5° " Procureur de la République " et " procureur général " par " procureur de la République près le tribunal supérieur d'appel " ;
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6° " Département " ou " arrondissement " par " collectivité territoriale " ;
7° " Bulletin officiel des annonces civiles et commerciales " par " Recueil des actes administratifs de la collectivité territoriale " ;
8° " Préfet du département " par " préfet de la collectivité " ;
9° " Chambre de commerce et d'industrie " par " chambre d'agriculture, de commerce, d'industrie, de métiers et de l'artisanat ".
Article R910-3
Les renvois aux dispositions du code général des impôts sont remplacés par les dispositions de droit fiscal applicables localement.
Article R910-4
Les références faites, par des dispositions du présent code applicables à Saint-Pierre-et-Miquelon, à d'autres articles du présent code, ne concernent que les articles rendus applicables dans la collectivité avec les adaptations prévues dans les chapitres ci-dessous.
Article R910-5
En l'absence d'adaptation, les références faites par des dispositions du présent code applicables à Saint-Pierre-et-Miquelon, à des dispositions qui n'y sont pas applicables, sont remplacées par les références aux dispositions ayant le même objet applicables localement.
Article R910-6
Les articles faisant référence à la Communauté européenne sont applicables dans le respect de la décision d'association prévue à l'article 187 du traité instituant la Communauté européenne. Les références à l'accord sur l'Espace économique européen ne sont pas applicables.
Chapitre Ier : Dispositions d'adaptation du livre Ier.
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Article R911-1
A l'article R. 121-5, les mots : " I de l'article L. 121-4 " sont remplacés par : " l'article L. 121-4 ".
Article R911-2
Les dérogations prévues par les articles R. 123-203, R. 123-204, R. 123-207 et R. 123-208 sont applicables aux personnes physiques soumises à un régime simplifié d'imposition par la réglementation en vigueur à Saint-Pierre-et-Miquelon.
Chapitre II : Dispositions d'adaptation du livre II.
Chapitre III : Dispositions d'adaptation du livre III.
Article R913-1
L'article R. 330-1 est ainsi rédigé :
" Le contenu du document mentionné au deuxième alinéa de l'article L. 330-3 est fixé par un arrêté du représentant de l'Etat. "
Chapitre IV : Dispositions d'adaptation du livre IV.
Article R914-1
Les articles R. 420-3 et R. 420-4 sont ainsi rédigés : " Pour l'application de l'article L. 420-7, le siège et le ressort des juridictions compétentes dans la collectivité territoriale de Saint-Pierre-et-Miquelon sont fixés conformément aux tableaux de l'annexe 9-4 et 9-5 du présent livre. "
Article D914-2
Les articles D. 442-3 et D. 442-4 sont ainsi rédigés : Pour l'application de l'article L. 442-6, le siège
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et le ressort des juridictions compétentes dans la collectivité territoriale de Saint-Pierre-et-Miquelon sont fixés conformément aux tableaux des annexes 9-6 et 9-7 du présent livre.
Chapitre V : Dispositions d'adaptation du livre V.
Chapitre VI : Dispositions d'adaptation du livre VI.
Article R916-1
A l'article R. 600-3, les mots : " en métropole " sont remplacés par les mots : " dans la collectivité territoriale de Saint-Pierre-et-Miquelon ", et les mots : " aux tableaux des annexes 6-1 et 6-2 du présent livre " sont remplacés par les mots : " aux tableaux des annexes 9-2 et 9-3 du présent livre. "
Chapitre VII : Dispositions d'adaptation du livre VII.
Article D917-1
A l'article D. 711-9, les mots : à la chambre régionale de commerce et d'industrie et sont supprimés.
Article D917-2
Le second alinéa de l'article D. 711-67-1, le cinquième alinéa de l'article D. 711-67-4 et le deuxième alinéa de l'article D. 711-67-5 ne sont pas applicables.
Article D917-3
A l'article D. 711-67-7, les mots : aux articles L. 711-4 et L. 711-10 sont remplacés par les mots : à l'article L. 711-4 .
Article R917-4
Au deuxième alinéa de l'article R. 711-68, les mots : avec les délégués consulaires sont supprimés.
Article R917-5
Au deuxième alinéa de l'article R. 711-71, les mots : Les chambres régionales de commerce et d'industrie, les chambres de commerce et d'industrie et les groupements interconsulaires ne peuvent sont remplacés par les mots : La chambre de commerce et d'industrie ne peut .
Article R917-6
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Le dernier alinéa de l'article R. 712-8 et le quatrième alinéa de l'article R. 712-11 ne sont pas applicables.
Article R917-7
A l'article R. 712-9, les mots : et au II de l'article 1600 du code général des impôts sont supprimés.
Article R917-8
Au premier alinéa de l'article R. 712-16, les mots : des informations relatives à l'emploi de la taxe additionnelle à la taxe professionnelle, sont supprimés.
Article D917-9
Le quatrième alinéa de l'article D. 712-34 n'est pas applicable.
Article R917-10
Le troisième alinéa de l'article R. 713-66 n'est pas applicable.
Chapitre VIII : Dispositions d'adaptation du livre VIII.
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Partie réglementaire
LIVRE IX : Dispositions relatives à l'outre-mer.
TITRE II : Dispositions applicables à Mayotte.
Article R920-1
Sous réserve des adaptations prévues dans les chapitres ci-après, les dispositions suivantes du code sont applicables à Mayotte :
1° Le livre I, à l'exception des articles R. 121-3, R. 121-4, R. 123-171-1, R. 122-1 à R. 122-17, R. 123-209 à R. 123-219, R. 132-1 à R. 133-2, D. 145-12 à D. 145-19, D. 146-1 et D. 146-2 ;
2° Le livre II, à l'exception des articles R. 229-1 à R. 229-26 et R. 252-1 ;
3° Le livre III, à l'exception des articles R. 321-1 à R. 321-73 ;
4° Le livre IV, à l'exception des articles R. 463-16, R. 470-2 à R. 470-7 ;
5° Le livre V, à l'exception des articles R. 522-1 à R. 522-25 ;
6° Le livre VI, à l'exception des articles R. 625-4, R. 670-1 à R. 670-7 ;
7° Les titres Ier et II du livre VII, à l'exception des articles R. 711-22 à R. 711-53, R. 712-21, R. 712-22, R. 712-24, R. 713-7, R. 713-16 à R. 713-26, R. 721-2 à R. 721-4 et R. 721-7 à R. 724-21 ;
8° Le livre VIII.
Article R920-2
Pour l'application du présent code à Mayotte, les termes énumérés ci-après sont remplacés comme suit :
1° " tribunal de grande instance " ou " tribunal d'instance " par " tribunal de première instance " ;
2° " tribunal de commerce " ou " justice consulaire " par " tribunal de première instance statuant en matière commerciale " ;
3° " cour d'appel " par " tribunal supérieur d'appel " ;
4° " premier président de la cour d'appel " par " président du tribunal supérieur d'appel " ;
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5° " procureur général " par " procureur de la République près le tribunal supérieur d'appel " ;
6° " procureur de la République " par " procureur de la République près le tribunal de première instance " ;
7° " département " ou " arrondissement " par " Mayotte " ;
8° " Bulletin officiel des annonces civiles et commerciales " par " Recueil des actes administratifs de Mayotte " ;
9° " préfet " ou " sous-préfet " par " représentant de l'Etat à Mayotte " ;
10° " chambre de commerce et d'industrie " par " chambre de commerce et d'industrie de Mayotte " ;
11° " chambre d'agriculture " par " chambre d'agriculture, de la pêche, et de l'aquaculture de Mayotte " ;
12° " chambre des métiers et de l'artisanat " par " chambre de métiers et de l'artisanat de Mayotte ".
Article R920-3
Les renvois aux dispositions du code général des impôts sont remplacés par les renvois aux dispositions du code local des impôts en vigueur à Mayotte.
Les renvois aux dispositions du code du travail sont remplacés par les renvois aux dispositions du code du travail applicable à Mayotte.
Article R920-4
Les références faites, par des dispositions du présent code applicables à Mayotte, à d'autres articles du présent code, ne concernent que les articles rendus applicables à Mayotte avec les adaptations prévues dans les chapitres ci-dessous.
Article R920-5
En l'absence d'adaptation, les références faites par des dispositions du présent code applicables à Mayotte à des dispositions qui n'y sont pas applicables, sont remplacées par les références aux dispositions ayant le même objet applicables localement.
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Article R920-6
En l'absence d'adaptation, les références faites par des dispositions du présent code applicables à Mayotte à des dispositions du code du travail n'y sont applicables que s'il existe une disposition applicable localement ayant le même objet.
Article R920-7
Les articles faisant référence à la Communauté européenne sont applicables dans le respect de la décision d'association prévue à l'article 187 du traité instituant la Communauté européenne. Les références à l'accord sur l'Espace économique européen ne sont pas applicables.
Chapitre Ier : Dispositions d'adaptation du livre Ier.
Article R921-1
A l'article R. 121-5, les mots : I de l'article L. 121-4 sont remplacés par : l'article L. 121-4.
Article R921-2
Au deuxième alinéa de l'article R. 123-80, après les termes : " à l'article R. 123-166 ", les mots : " à l'exception des actes et pièces mentionnés aux articles R. 123-103 à R. 123-117, et L. 123-9 " sont insérés.
Article R921-3
Au premier alinéa de l'article R. 123-102, les termes : " en deux exemplaires " sont remplacés par les termes : " en un exemplaire ".
Article R921-4
Pour l'application des articles R. 123-103 à R. 123-117, les actes et pièces mentionnés à ces articles
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sont communiqués par les greffiers dans les conditions prévues à l'article R. 123-150.
Chapitre II : Dispositions d'adaptation du livre II.
Article R922-1
Aux articles R. 232-6, R. 232-7, R. 234-2, R. 234-3, R. 234-5 et R. 234-6, les mots : " au comité d'entreprise " sont remplacés par les mots : " aux délégués du personnel. "
Chapitre III : Dispositions d'adaptation du livre III.
Article R923-1
L'article R. 330-1 est ainsi rédigé :
" Le contenu du document mentionné au deuxième alinéa de l'article L. 330-3 est fixé par un arrêté du représentant de l'Etat. "
Chapitre IV : Dispositions d'adaptation du livre IV.
Article R924-1
Les articles R. 420-3 et R. 420-4 sont ainsi rédigés :
" Pour l'application de l'article L. 420-7, le siège et le ressort des juridictions compétentes à Mayotte sont fixés conformément aux tableaux des annexes 9-4 et 9-5 du présent livre. "
Article D924-2
Les articles D. 442-3 et D. 442-4 sont ainsi rédigés : " Pour l'application de l'article L. 442-6, le siège et le ressort des juridictions compétentes à Mayotte sont fixés conformément aux tableaux des annexes 9-6 et 9-7 du présent livre. "
Chapitre V : Dispositions d'adaptation du livre V.
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Chapitre VI : Dispositions d'adaptation du livre VI.
Article R926-1
A l'article R. 600-3, les mots : " en métropole " sont remplacés par les mots : " à Mayotte ", et les mots : " aux tableaux des annexes 6-1 et 6-2 du présent livre " sont remplacés par les mots :
" aux tableau des annexes 9-2 et 9-3 du présent livre. "
Chapitre VII : Dispositions d'adaptation du livre VII.
Article R927-1
L'article R. 711-1 est ainsi rédigé :
" La chambre de commerce et d'industrie de Mayotte, dont la circonscription est Mayotte, a son siège à Mamoudzou. "
Article R927-2
Après l'article R. 713-6, est inséré l'article suivant :
" Le vote à l'urne prévu à l'article 16 de l'ordonnance n° 2005-43 du 20 janvier 2005 est organisé pour l'élection des membres de la chambre de commerce et d'industrie de Mayotte dans les conditions suivantes :
" I. La commission d'établissement des listes électorales prévue à l'article 15 de l'ordonnance n° 2005-43 du 20 janvier 2005 fait établir par le préfet les cartes électorales et les remet aux maires qui les adressent aux électeurs au plus tard dans la troisième semaine qui précède la date du scrutin. La carte d'électeur qui n'a pu être remise à son titulaire est transmise par le maire au bureau de vote où elle demeure à la disposition de l'électeur jusqu'au jour du scrutin. Un arrêté du préfet fixe le format, les mentions et les modalités d'impression des cartes électorales.
" II. L'électeur peut donner procuration à un autre électeur inscrit dans la même catégorie et sous-catégorie professionnelle, si elle existe.
" La procuration mentionne l'identité du mandant et du mandataire ainsi que la catégorie, et la sous-catégorie professionnelle, si elle existe, de chacun d'eux.
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" Chaque électeur ne peut disposer que d'une seule procuration. Si plusieurs procurations sont établies au nom du même électeur, celle qui lui a été adressée en premier lieu est seule valable.
" Les articles L. 71, L. 72, L. 74 à L. 77, les premier, deuxième, troisième et quatrième alinéas de l'article R. 73, le premier alinéa de l'article R. 74, les premier et deuxième alinéas de l'article R. 75, les troisième, quatrième et cinquième alinéas de l'article R. 76, les articles R. 78 et R. 79 du code électoral s'appliquent au vote par procuration.
" III. - Le représentant de l'Etat à Mayotte fixe le siège et les heures d'ouverture des bureaux de vote.
" Les bureaux de vote sont constitués du maire ou de son délégué, président, et de deux conseillers municipaux ou, à défaut, électeurs consulaires qu'il désigne.
" Si un électeur ne peut présenter au bureau de vote sa carte électorale, il est autorisé à voter au vu de la liste électorale en produisant un des titres d'identité prévus par l'article R. 60 du code électoral.
" IV. - Il est procédé au dépouillement le jour même du scrutin.
" Est nul tout bulletin distinct du modèle validé dans les conditions prévues à l'article R. 713-13, tout bulletin portant un nombre de noms supérieur à celui des sièges à pourvoir dans la catégorie ou, le cas échéant, la sous-catégorie professionnelle concernée et tout bulletin entaché d'une des irrégularités mentionnées à l'article L. 66 du code électoral.
" Seuls les suffrages en faveur des candidats déclarés sont pris en compte.
" V. - A l'issue du dépouillement, le président du bureau de vote dresse le procès-verbal des opérations électorales et le remet dans les vingt-quatre heures à la commission des opérations électorales prévue à l'article R. 713-13.
" VI. - Par dérogation aux dispositions du deuxième alinéa de l'article R. 713-27, la commission dispose d'un délai de quatre jours suivant celui du scrutin pour proclamer les résultats. "
Article R927-3
Pour l'application à Mayotte de l'article R. 713-66, les deuxième à sixième alinéas sont remplacés par les dispositions suivantes :
" L'étude décrit la répartition des membres entre catégories professionnelles et, le cas échéant, entre sous-catégories professionnelles. Elle est élaborée à partir des données suivantes :
" 1° Chiffres d'affaires, par catégorie ou sous-catégorie, des entreprises soumises au paiement de
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l'impôt sur les sociétés ;
" 2° Effectifs, par catégorie ou sous-catégorie, des entreprises à jour du paiement de la patente ;
" 3° Répartition, par catégorie ou sous-catégorie, des entreprises inscrites au registre du commerce. "
Article R927-4
A l'article R. 721-6, les mots : " 4 000 " sont remplacés par les mots : " 460 euros ".
Chapitre VIII : Dispositions d'adaptation du livre VIII.
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Partie réglementaire
LIVRE IX : Dispositions relatives à l'outre-mer.
TITRE III : Dispositions applicables en Nouvelle-Calédonie.
Article R930-1
Sous réserve des adaptations prévues dans les chapitres ci-après, les dispositions suivantes du code sont applicables en Nouvelle-Calédonie :
1° Le livre Ier, à l'exception des articles R. 121-3, R. 121-4, R. 122-1 à R. 122-17, R. 123-171-1, R. 123-209 à R. 123-219, D. 123-235, D. 123-236, R. 127-1 à R. 134-17, R. 143-23, R. 145-9 à D. 145-19, R. 145-22 à D. 146-2. Les articles R. 123-220 à R. 123-234 ne sont applicables qu'en ce qu'ils concernent les institutions et services de l'Etat et les personnes morales de droit public administratif dont le siège est situé en Nouvelle-Calédonie, ainsi que leurs établissements ;
2° Le livre II, à l'exception des articles R. 229-1 à R. 229-26 et R. 252-1 ;
3° Le livre III, à l'exception des articles R. 310-1 à R. 310-19, R. 321-1 à R. 321-73 ;
4° Le livre V, à l'exception des articles R. 522-1 à R. 522-25 ;
5° Le livre VI, à l'exception des articles R. 600-1, R. 600-2, R. 600-4 à R. 611-50, R. 621-1 à R. 663-40, R. 663-42 à R. 663-44, des deux premiers alinéas de l'article R. 663-45, des articles R. 663-47, R. 663-48 et R. 670-1 à R. 670-7 ;
6° Le titre II du livre VII, à l'exception des articles R. 721-7 à R. 722-6, R. 722-8, R. 722-9, R. 722-11 à R. 722-17, R. 723-4, R. 723-9 à R. 723-31 ;
7° Le titre II du livre VIII.
Article R930-2
Pour l'application du présent code dans le territoire, les termes énumérés ci-après sont remplacés comme suit :
1° " Tribunal de grande instance " ou " tribunal d'instance " par " tribunal de première instance " ;
2° " Tribunal de commerce " ou " justice consulaire " par " tribunal mixte de commerce " ;
3° " Conseil de prud'hommes " par " tribunal du travail " ;
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4° " Bulletin officiel des annonces civiles et commerciales " par " Journal officiel de la Nouvelle-Calédonie " ;
5° " Département " ou " arrondissement " par " Nouvelle-Calédonie " ou par " province " ;
6° " Préfet " ou " sous-préfet " par " représentant de l'Etat en Nouvelle-Calédonie ".
Article R930-3
Les références faites, par des dispositions du présent code applicables en Nouvelle-Calédonie, à d'autres articles du présent code, ne concernent que les articles rendus applicables en Nouvelle-Calédonie avec les adaptations prévues dans les chapitres ci-dessous.
Article R930-4
En l'absence d'adaptation, les références faites par des dispositions du présent code applicables en Nouvelle-Calédonie, à des dispositions qui n'y sont pas applicables, sont remplacées par les références aux dispositions ayant le même objet applicables localement.
Article R930-5
Les références faites, par des dispositions du présent code applicables en Nouvelle-Calédonie, à des dispositions du code du travail n'y sont applicables que s'il existe une disposition applicable localement ayant le même objet.
Article R930-6
Les références faites, par des dispositions du présent code applicables en Nouvelle-Calédonie, à des dispositions relative à la procédure civile n'y sont applicables que s'il existe une disposition applicable localement ayant le même objet.
Article R930-7
Les références à l'immatriculation au répertoire des métiers sont remplacées par les références à l'immatriculation faite conformément à la réglementation applicable en Nouvelle-Calédonie.
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Article R930-8
Les articles faisant référence à la Communauté européenne sont applicables dans le respect de la décision d'association prévue à l'article 187 du traité instituant la Communauté européenne. Les références à l'accord sur l'Espace économique européen ne sont pas applicables.
Chapitre Ier : Dispositions d'adaptation du livre Ier.
Article R931-1
A l'article R. 121-5, les mots : " du I de l'article L. 121-4 " sont remplacés par les mots : " de l'article L. 121-4 ".
Article R931-2
Au deuxième alinéa de l'article R. 123-80, après les termes : " à l'article R. 123-166 ", les mots : " à l'exception des actes et pièces mentionnés aux articles R. 123-103 à R. 123-117, et à l'article L. 123-9 " sont ajoutés.
Article R931-3
Au premier alinéa de l'article R. 123-102, les mots : " deux exemplaires " sont remplacés par les mots : " un exemplaire ".
Article R931-4
Pour l'application des articles R. 123-103 à R. 123-117, les actes et pièces mentionnés à ces articles sont communiqués par les greffiers dans les conditions prévues à l'article R. 123-150.
Chapitre II : Dispositions d'adaptation du livre II.
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Article R932-1
Aux articles R. 232-6, R. 232-7, R. 234-2, R. 234-3, R. 234-5 et R. 234-6, les mots : " au comité d'entreprise " sont remplacés par les mots : " aux délégués du personnel ".
Chapitre III : Dispositions d'adaptation du livre III.
Article R933-1
L'article R. 330-1 est ainsi rédigé :
" Le contenu du document mentionné au deuxième alinéa de l'article L. 330-3 est fixé par un arrêté du représentant de l'Etat. "
Chapitre IV : Dispositions d'adaptation du livre IV.
Chapitre V : Dispositions d'adaptation du livre V.
Chapitre VI : Dispositions d'adaptation du livre VI.
Article R936-1
A l'article R. 600-3, les mots : " en métropole " sont remplacés par les mots : " en Nouvelle-Calédonie ", et les mots : " aux tableaux des annexes 6-1 et 6-2 du présent livre " sont remplacés par les mots : " aux tableaux des annexes 9-2 et 9-3 du présent livre ".
Article R936-2
Les dispositions de l'article R. 663-49 sont remplacées par les dispositions suivantes :
" Lorsque la procédure de liquidation judiciaire est reprise après avoir été clôturée et qu'elle permet le versement d'une rémunération au liquidateur alors que ce dernier a bénéficié de l'indemnisation prévue à l'article L. 663-3, le montant de l'indemnisation perçue est déduit de cette rémunération. "
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Chapitre VII : Dispositions d'adaptation du livre VII.
Article R937-1
A l'article R. 721-2, les mots : " au tableau de l'annexe 7-1 du présent livre " sont remplacés par les mots : " au tableau de l'annexe 9-1 du présent livre ".
Article D937-2
A l'article R. 721-3, les mots : " et le nombre des chambres de chaque tribunal de commerce " sont remplacés par les mots : " du tribunal mixte de commerce de Nouméa ", et les mots : " aux tableaux de l'annexe 7-2 du présent livre " sont remplacés par les mots : " au tableau de l'annexe 9-1 du présent livre ".
Article R937-3
Pour l'application du chapitre III du titre II du livre VII, les dispositions suivantes sont ajoutées :
" L'élection générale des juges des tribunaux mixtes de commerce a lieu dans la première quinzaine du mois d'octobre. "
Article R937-4
A l'article R. 723-1, les mots : " dans le mois qui suit l'élection des délégués consulaires ", et " prise après avis de l'assemblée générale du tribunal de commerce " sont supprimés.
Article R937-5
Au premier alinéa de l'article R. 723-2, les mots : " du procès-verbal de l'élection des délégués consulaires, et, par le président du tribunal de commerce, une expédition de l'ordonnance fixant le tableau des juges composant la juridiction " sont remplacés par les mots : " de la liste électorale utilisée pour l'élection des juges des chambres de commerce du territoire ".
Au deuxième alinéa de l'article R. 723-2, les mots : " des juges dont l'élection est intervenue postérieurement à celle des délégués consulaires ainsi qu'à celle des anciens juges des tribunaux de commerce qui demandent à être inscrits en application de l'article L. 723-1 " sont remplacés par les
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mots : " des anciens membres des tribunaux mixtes de commerce et des chambres de commerce et d'industrie qui demandent à être inscrits en application des articles L. 723-1 dans sa rédaction applicable en Nouvelle-Calédonie ".
Article R937-6
A l'article R. 723-3, les mots : " qui en adresse un exemplaire dans chaque mairie, où elle est tenue à la disposition du public " sont ajoutés après les mots : " Elle est transmise au haut-commissaire de la République ".
Article R937-7
Au deuxième alinéa de l'article R. 723-6, les mots : " jusqu'à 18 heures le vingtième jour précédant celui du dépouillement du premier tour de scrutin " sont remplacés par les mots : " jusqu'au vingtième jour précédant celui du scrutin ".
Au troisième alinéa du même article, les mots : " prévues aux 1° à 4° de l'article L. 723-2 et aux articles L. 723-5, L. 723-6, L. 723-7 et L. 723-8 " sont remplacés par les mots : " prévues aux 1° à 4° de l'article L. 723-2 et aux articles L. 723-5, L. 723-7 et L. 723-8 dans leur rédaction applicable en Nouvelle Calédonie ".
Article R937-8
Pour l'application de la section 3 du chapitre III du titre II du livre VII, les dispositions suivantes sont ajoutées :
" I. - L'élection des juges d'un tribunal mixte de commerce a lieu dans la commune où le tribunal a son siège.
" Le collège électoral est convoqué par un arrêté du haut-commissaire de la République pris deux mois avant la date du scrutin. Cet arrêté fixe la date, les heures et le lieu du scrutin.
" Chaque électeur est en outre convoqué individuellement.
" II. - Chaque électeur, après que la commission électorale a vérifié son identité, vote à l'aide d'un bulletin qu'il rédige lui-même. Il peut aussi utiliser l'un des bulletins imprimés mis par certains candidats, avec l'approbation de la commission électorale, à la disposition des électeurs dans la salle du scrutin. Ce bulletin imprimé peut être modifié de façon manuscrite. Chaque électeur ne met sous enveloppe et ne dépose dans l'urne qu'un seul bulletin.
" Le nombre des candidats désignés par chaque électeur sur son bulletin est égal ou inférieur à celui
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des juges à élire.
" Les suffrages exprimés en faveur des personnes dont la candidature n'a pas été enregistrée et affichée conformément aux dispositions de l'article R. 723-6 ne sont pas comptés lors du recensement des votes.
" III. - Tout électeur désirant voter par procuration fait établir celle-ci par acte dressé sans frais par le tribunal de première instance de sa résidence.
" L'électeur ne peut désigner en qualité de mandataire qu'un autre électeur inscrit sur la même liste électorale que lui.
" Le tribunal de première instance peut être saisi à tout moment jusqu'à l'avant-veille du scrutin à midi.
" L'électeur justifie devant le tribunal de première instance de son identité. Il produit en outre un certificat établi par le greffier du tribunal mixte de commerce attestant de son inscription et de celle de son mandataire sur la liste électorale mentionnée à l'article R. 723-3.
" L'électeur se présente en personne devant le tribunal de première instance. La présence du mandataire n'est pas indispensable.
" Le tribunal de première instance dresse l'acte de procuration en deux originaux : l'un est remis à l'électeur, le second, auquel est annexé le certificat établi par le greffier du tribunal mixte de commerce, est conservé au rang des minutes du tribunal de première instance.
" La validité de la procuration est limitée à la seule élection pour laquelle elle est établie.
" Lors du scrutin, le mandataire remet au président de la commission électorale l'acte de procuration établi par le tribunal de première instance. Le secrétaire de la commission électorale porte sur la liste d'émargement, en face du nom de l'électeur ayant demandé à voter par procuration, la mention de cette demande et le nom du mandataire désigné par la procuration, et, en face du nom de l'électeur désigné en qualité de mandataire, la mention de cette qualité et du nom de l'électeur représenté. La procuration est annexée à la liste d'émargement et conservée dans les conditions fixées par l'article R. 723-19.
" IV. - Tout électeur désirant voter par correspondance en fait la demande auprès du haut-commissaire de la République. Cette demande est recevable jusqu'au trentième jour précédant la date du scrutin. La demande, formulée par écrit et signée par l'électeur, indique ses nom, prénoms et domicile ainsi que la qualité lui donnant droit à participer au vote.
" Si la demande est tardive ou si l'intéressé ne figure pas sur la liste électorale mentionnée à l'article R. 723-3, le haut-commissaire de la République avise aussitôt l'intéressé du rejet de sa demande en lui donnant les motifs de son refus.
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" Lorsque le haut-commissaire de la République fait droit à la demande, il adresse à l'électeur, vingt jours avant la date du scrutin, une enveloppe électorale destinée à recevoir le bulletin de vote et une enveloppe d'envoi portant la mention " Election des juges du tribunal mixte de commerce. - Vote par correspondance " et les nom et prénoms de l'électeur.
" Lors du scrutin, l'électeur place son bulletin de vote dans l'enveloppe électorale sans la cacheter et place cette enveloppe dans l'enveloppe d'envoi. Il cachette cette deuxième enveloppe et l'adresse au haut-commissaire de la République sous pli fermé.
" Le haut-commissaire de la République dresse la liste des électeurs ayant demandé à voter par correspondance. Il y mentionne ceux des électeurs dont il a reçu l'enveloppe électorale. La liste est close la veille du scrutin à dix-huit heures. Les plis parvenant ultérieurement sont retournés aux électeurs avec la mention de la date et de l'heure auxquelles ils sont parvenus au haut-commissariat. La liste est remise, avec les enveloppes cachetées contenant les enveloppes électorales, au président de la commission électorale immédiatement après que celui-ci a ouvert le scrutin.
" Le secrétaire de la commission électorale porte sur la liste d'émargement, en face du nom de chaque électeur autorisé à voter par correspondance, la mention " Vote par correspondance ". Le président de la commission électorale ouvre ensuite chaque pli, énonce publiquement le nom de l'électeur, émarge et place dans l'urne, pour être dépouillée avec les autres, l'enveloppe contenant le bulletin de vote.
" A la clôture du scrutin, les enveloppes électorales et la liste des électeurs autorisés à voter par correspondance sont annexées à la liste d'émargement et conservées dans les conditions fixées par l'article R. 723-19.
" Lorsqu'il y a lieu de procéder à des élections complémentaires, la date du scrutin et le calendrier des opérations électorales sont fixés par arrêté du haut-commissaire de la République. "
Article R937-9
Pour l'application de l'article R. 723-24, après les mots : " dans le ressort duquel se trouve situé le siège du tribunal de commerce ", sont insérés les mots : " qui statue en dernier ressort ".
Chapitre VIII : Dispositions d'adaptation du livre VIII.
Article R938-1
Pour l'application en Nouvelle-Calédonie du titre II du livre VIII, les références à la " commission régionale d'inscription ", à la " chambre régionale de discipline " et à la " chambre régionale des comptes " sont remplacées, respectivement, par les références à la " commission territoriale d'inscription ", à la " chambre territoriale de discipline " et à la " chambre territoriale des comptes ".
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Partie réglementaire
LIVRE IX : Dispositions relatives à l'outre-mer.
TITRE IV : Dispositions applicables en Polynésie française.
Article R940-1
Sous réserve des adaptations prévues dans les chapitres ci-après, les dispositions suivantes du code sont applicables en Polynésie française :
1° Les articles R. 123-220 à R. 123-234, en ce qu'ils concernent les institutions et services de l'Etat et les personnes morales de droit public administratif dont le siège est situé en Polynésie française, ainsi que leurs établissements ;
2° Le titre II du livre VII, à l'exception des articles R. 721-7 à R. 722-6, R. 722-8, R. 722-9, R. 722-11 à R. 722-17, R. 723-4, R. 723-9 à R. 723-31.
Article R940-2
Pour l'application du présent code en Polynésie française, les termes énumérés ci-après sont remplacés comme suit :
1° " Tribunal de grande instance " ou " tribunal d'instance " par " tribunal de première instance " ;
2° " Tribunal de commerce " ou " justice consulaire " par " tribunal mixte de commerce " ;
3° " Conseil de prud'hommes " par " tribunal du travail " ;
4° " Département " ou " arrondissement " par " Polynésie française " ;
6° " Préfet " ou " sous-préfet " par " représentant de l'Etat en Polynésie française ".
Article R940-3
Pour l'application de l'article L. 610-1, le siège et le ressort des juridictions commerciales
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compétentes en Polynésie française sont fixés conformément aux tableaux des annexes 9-2 et 9-3 au présent code.
Chapitre Ier : Dispositions d'adaptation du livre Ier.
Chapitre II : Dispositions d'adaptation du livre II.
Chapitre III : Dispositions d'adaptation du livre III.
Chapitre IV : Dispositions d'adaptation du livre IV.
Chapitre V : Dispositions d'adaptation du livre V.
Chapitre VI : Dispositions d'adaptation du livre VI.
Chapitre VII : Dispositions d'adaptation du livre VII.
Article R947-1
A l'article R. 721-2, les mots : " au tableau de l'annexe 7-1 du présent livre " sont remplacés par les mots : " au tableau de l'annexe 9-1 du présent livre ".
Article D947-2
A l'article R. 721-3, les mots : " et le nombre des chambres de chaque tribunal de commerce " sont remplacés par les mots : " du tribunal mixte de commerce de Papeete ", et les mots : " aux tableaux de l'annexe 7-2 du présent livre " sont remplacés par les mots : " au tableau de l'annexe 9-1 du présent livre ".
Article R947-3
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Pour l'application du chapitre III du titre II du livre VII, les dispositions suivantes sont ajoutées :
" L'élection générale des juges des tribunaux mixtes de commerce a lieu dans la première quinzaine du mois d'octobre. "
Article R947-4
A l'article R. 723-1, les mots : " dans le mois qui suit l'élection des délégués consulaires " et " prise après avis de l'assemblée générale du tribunal de commerce " sont supprimés.
Article R947-5
Au premier alinéa de l'article R. 723-2, les mots : " du procès-verbal de l'élection des délégués consulaires, et, par le président du tribunal de commerce, une expédition de l'ordonnance fixant le tableau des juges composant la juridiction " sont remplacés par les mots : " de la liste électorale utilisée pour l'élection des juges des chambres de commerce du territoire ".
Au deuxième alinéa de l'article R. 723-2, les mots : " des juges dont l'élection est intervenue postérieurement à celle des délégués consulaires ainsi qu'à celle des anciens juges des tribunaux de commerce qui demandent à être inscrits en application de l'article L. 723-1 " sont remplacés par les mots : " des anciens membres des tribunaux mixtes de commerce et des chambres de commerce et d'industrie qui demandent à être inscrits en application des articles L. 723-1 dans sa rédaction applicable en Polynésie française ".
Article R947-6
A l'article R. 723-3, les mots : " qui en adresse un exemplaire dans chaque mairie, où elle est tenue à la disposition du public " sont ajoutés après les mots : " Elle est transmise au haut-commissaire de la République ".
Article R947-7
Au deuxième alinéa de l'article R. 723-6, les mots : " jusqu'à 18 heures le vingtième jour précédant celui du dépouillement du premier tour de scrutin " sont remplacés par les mots " jusqu'au vingtième jour précédant celui du scrutin ".
Au troisième alinéa du même article, les mots : " prévues aux 1° à 4° de l'article L. 723-2 et aux articles L. 723-5, L. 723-6, L. 723-7 et L. 723-8 " sont remplacés par les mots : " prévues aux 1° à 4° de l'article L. 723-2 et aux articles L. 723-5, L. 723-7 et L. 723-8 dans leur rédaction applicable en Polynésie française ".
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Article R947-8
Pour l'application de la section 3 du chapitre III du titre II du livre VII, les dispositions suivantes sont ajoutées :
" I. - L'élection des juges d'un tribunal mixte de commerce a lieu dans la commune où le tribunal a son siège.
" Le collège électoral est convoqué par un arrêté du haut commissaire de la République pris deux mois avant la date du scrutin. Cet arrêté fixe la date, les heures et le lieu du scrutin.
" Chaque électeur est en outre convoqué individuellement.
" II. - Chaque électeur, après que la commission électorale a vérifié son identité, vote à l'aide d'un bulletin qu'il rédige lui-même. Il peut aussi utiliser l'un des bulletins imprimés mis par certains candidats, avec l'approbation de la commission électorale, à la disposition des électeurs dans la salle du scrutin. Ce bulletin imprimé peut être modifié de façon manuscrite. Chaque électeur ne met sous enveloppe et ne dépose dans l'urne qu'un seul bulletin.
" Le nombre des candidats désignés par chaque électeur sur son bulletin est égal ou inférieur à celui des juges à élire.
" Les suffrages exprimés en faveur des personnes dont la candidature n'a pas été enregistrée et affichée conformément aux dispositions de l'article R. 723-6 ne sont pas comptés lors du recensement des votes.
" III. - Tout électeur désirant voter par procuration fait établir celle-ci par acte dressé sans frais par le tribunal de première instance de sa résidence.
" L'électeur ne peut désigner en qualité de mandataire qu'un autre électeur inscrit sur la même liste électorale que lui.
" Le tribunal de première instance peut être saisi à tout moment jusqu'à l'avant-veille du scrutin à midi.
" L'électeur justifie devant le tribunal de première instance de son identité. Il produit en outre un certificat établi par le greffier du tribunal mixte de commerce attestant de son inscription et de celle de son mandataire sur la liste électorale mentionnée à l'article R. 723-3.
" L'électeur se présente en personne devant le tribunal de première instance. La présence du mandataire n'est pas indispensable.
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" Le tribunal de première instance dresse l'acte de procuration en deux originaux : l'un est remis à l'électeur, le second, auquel est annexé le certificat établi par le greffier du tribunal mixte de commerce, est conservé au rang des minutes du tribunal de première instance.
" La validité de la procuration est limitée à la seule élection pour laquelle elle est établie.
" Lors du scrutin, le mandataire remet au président de la commission électorale l'acte de procuration établi par le tribunal de première instance. Le secrétaire de la commission électorale porte sur la liste d'émargement, en face du nom de l'électeur ayant demandé à voter par procuration, la mention de cette demande et le nom du mandataire désigné par la procuration, et, en face du nom de l'électeur désigné en qualité de mandataire, la mention de cette qualité et du nom de l'électeur représenté. La procuration est annexée à la liste d'émargement et conservée dans les conditions fixées par l'article R. 723-19.
" IV. - Tout électeur désirant voter par correspondance en fait la demande auprès du haut commissaire de la République. Cette demande est recevable jusqu'au trentième jour précédant la date du scrutin. La demande, formulée par écrit et signée par l'électeur, indique ses nom, prénoms et domicile ainsi que la qualité lui donnant droit à participer au vote.
" Si la demande est tardive ou si l'intéressé ne figure pas sur la liste électorale mentionnée à l'article R. 723-3, le haut commissaire de la République avise aussitôt l'intéressé du rejet de sa demande en lui donnant les motifs de son refus.
" Lorsque le haut commissaire de la République fait droit à la demande, il adresse à l'électeur, vingt jours avant la date du scrutin, une enveloppe électorale destinée à recevoir le bulletin de vote et une enveloppe d'envoi portant la mention " Election des juges du tribunal mixte de commerce. - Vote par correspondance " et les nom et prénoms de l'électeur.
" Lors du scrutin, l'électeur place son bulletin de vote dans l'enveloppe électorale sans la cacheter et place cette enveloppe dans l'enveloppe d'envoi. Il cachette cette deuxième enveloppe et l'adresse au haut commissaire de la République sous pli fermé.
" Le haut commissaire de la République dresse la liste des électeurs ayant demandé à voter par correspondance. Il y mentionne ceux des électeurs dont il a reçu l'enveloppe électorale. La liste est close la veille du scrutin à dix-huit heures. Les plis parvenant ultérieurement sont retournés aux électeurs avec la mention de la date et de l'heure auxquelles ils sont parvenus au haut-commissariat. La liste est remise, avec les enveloppes cachetées contenant les enveloppes électorales, au président de la commission électorale immédiatement après que celui-ci a ouvert le scrutin.
" Le secrétaire de la commission électorale porte sur la liste d'émargement, en face du nom de chaque électeur autorisé à voter par correspondance, la mention " Vote par correspondance ". Le président de la commission électorale ouvre ensuite chaque pli, énonce publiquement le nom de l'électeur, émarge et place dans l'urne, pour être dépouillée avec les autres, l'enveloppe contenant le bulletin de vote.
" A la clôture du scrutin, les enveloppes électorales et la liste des électeurs autorisés à voter par
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correspondance sont annexées à la liste d'émargement et conservées dans les conditions fixées par l'article R. 723-19.
" V. - Lorsqu'il y a lieu de procéder à des élections complémentaires, la date du scrutin et le calendrier des opérations électorales sont fixés par arrêté du haut commissaire de la République. "
Article R947-9
Pour l'application de l'article R. 723-24, après les mots : " dans le ressort duquel se trouve situé le siège du tribunal de commerce ", sont insérés les mots : " qui statue en dernier ressort ".
Chapitre VIII : Dispositions d'adaptation du livre VIII.
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Partie réglementaire
LIVRE IX : Dispositions relatives à l'outre-mer.
TITRE V : Dispositions applicables dans les îles Wallis et Futuna.
Article R950-1
Sous réserve des adaptations prévues dans les chapitres ci-après, les dispositions suivantes du code sont applicables dans les îles Wallis et Futuna :
1° Le livre Ier, à l'exception des articles R. 121-3, R. 121-4, R. 122-1 à R. 122-17, R. 123-171-1, R. 123-209 à R. 123-219, D. 123-235, D. 123-236, R. 127-1 à R. 133-2, D. 145-12 à D. 145-19, D. 146-1 et D. 146-2. Les articles R. 123-220 à R. 123-234 ne sont applicables qu'en ce qu'ils concernent les institutions et services de l'Etat et les personnes morales de droit public administratif dont le siège est situé à Wallis et Futuna, ainsi que leurs établissements ;
2° Le livre II, à l'exception des articles R. 229-1 à R. 229-26 et R. 252-1 ;
3° Le livre III, à l'exception des articles R. 321-1 à R. 321-73 ;
4° Le livre IV, à l'exception des articles R. 463-16, R. 464-2 à R. 464-5, R. 470-2 à R. 470-7 ;
5° Le livre V, à l'exception des articles R. 522-1 à R. 522-25 ;
6° Le livre VI, à l'exception de l'article R. 625-4 ;
7° Le titre II du livre VII, à l'exception des articles R. 721-2 à R. 721-4 et R. 721-7 à R. 724-21 ;
8° Le livre VIII, à l'exception des articles R. 811-27 à R. 811-29, et des articles R. 812-1 à R. 812-23.
Article R950-2
Pour l'application du présent code dans les îles Wallis et Futuna, les termes énumérés ci-après sont remplacés comme suit :
1° " tribunal de grande instance " ou " tribunal d'instance " par " tribunal de première instance " ;
2° " tribunal de commerce " ou " justice consulaire " par " tribunal de première instance statuant en matière commerciale " ;
3° " conseil de prud'hommes " par " tribunal du travail " ;
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4° " Bulletin officiel des annonces civiles et commerciales " par " Journal officiel du territoire " ;
5° " département " ou " arrondissement " par " territoire " ;
6° " préfet " ou " sous-préfet " par " représentant de l'Etat dans le territoire " ;
7° " maire " par " chef de circonscription " ;
8° " chambre régionale des comptes " par " chambre territoriale des comptes de Nouvelle-Calédonie ".
Article R950-3
Les références faites, par des dispositions du présent code applicables dans les îles Wallis et Futuna, à d'autres articles du présent code, ne concernent que les articles rendus applicables dans les îles Wallis et Futuna avec les adaptations prévues dans les chapitres ci-dessous.
Article R950-4
En l'absence d'adaptation, les références faites par des dispositions du présent code applicables dans les îles Wallis et Futuna, à des dispositions qui n'y sont pas applicables, sont remplacées par les références aux dispositions ayant le même objet applicables localement.
Article R950-5
Les références faites, par des dispositions du présent code applicables dans les îles Wallis et Futuna, à des dispositions du code du travail n'y sont applicables que s'il existe une disposition applicable localement ayant le même objet.
Article R950-6
Les références à l'immatriculation au répertoire des métiers sont remplacées par les références à l'immatriculation faite conformément à la réglementation applicable dans les îles Wallis et Futuna.
Article R950-7
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Les articles faisant référence à la Communauté européenne sont applicables dans le respect de la décision d'association prévue à l'article 187 du traité instituant la Communauté européenne. Les références à l'accord sur l'Espace économique européen ne sont pas applicables.
Chapitre Ier : Dispositions d'adaptation du livre Ier.
Article R951-1
A l'article R. 121-5, les mots : " du I de l'article L. 121-4 " sont remplacés par : " de l'article L. 121-4 ".
Article R951-2
Au deuxième alinéa de l'article R. 123-80, après les termes : " à l'article R. 123-166 ", les mots : " à l'exception des actes et pièces mentionnés aux articles R. 123-103 à R. 123-117, et à l'article L. 123-9 " sont ajoutés.
Article R951-3
Au premier alinéa de l'article R. 123-102, les termes : " en deux exemplaires " sont remplacés par les termes : " en un exemplaire ".
Article R951-4
Les dérogations prévues par les articles R. 123-203, R. 123-204, R. 123-207 et R. 123-208 sont applicables aux personnes physiques soumises à un régime simplifié d'imposition par la réglementation en vigueur localement.
Chapitre II : Dispositions d'adaptation du livre II.
Article R952-1
Aux articles R. 232-6, R. 232-7, R. 234-2, R. 234-3, R. 234-5 et R. 234-6, les mots : " au comité
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d'entreprise " sont remplacés par les mots : " aux délégués du personnel ".
Chapitre III : Dispositions d'adaptation du livre III.
Article R953-1
L'article R. 330-1 est ainsi rédigé :
" Le contenu du document mentionné au deuxième alinéa de l'article L. 330-3 est fixé par un arrêté du représentant de l'Etat. "
Chapitre IV : Dispositions d'adaptation du livre IV.
Article R954-1
Les articles R. 420-3 et R. 420-4 sont ainsi rédigés : " Pour l'application de l'article L. 420-7, le siège et le ressort des juridictions compétentes à Wallis et Futuna sont fixés conformément aux tableaux des annexes 9-2 et 9-3 du présent livre ".
Chapitre V : Dispositions d'adaptation du livre V.
Chapitre VI : Dispositions d'adaptation du livre VI.
Article R956-1
A l'article R. 600-3, les mots : " en métropole " sont remplacés par les mots : " dans les îles Wallis et Futuna ", et les mots :
" aux tableaux des annexes 6-1 et 6-2 du présent livre " sont remplacés par les mots : " aux tableaux des annexes 9-2 et 9-3 du présent livre ".
Article R956-2
Les articles R. 663-4 à R. 663-39 sont applicables en tant qu'ils concernent les mandataires judiciaires.
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Chapitre VII : Dispositions d'adaptation du livre VII.
Article R957-1
A l'article R. 721-2, les mots : " au tableau de l'annexe 7-1 du présent livre " sont remplacés par les mots : " au tableau de l'annexe 9-1 du présent livre ".
Chapitre VIII : Dispositions d'adaptation du livre VIII.
Article R958-1
Les articles R. 814-1 à R. 814-28 sont applicables en tant qu'ils concernent les mandataires judiciaires.
Article R958-2
Pour l'application dans les îles Wallis et Futuna du titre II du livre VIII, les références à la " commission régionale d'inscription ", à la " chambre régionale de discipline " et à la " chambre régionale des comptes " sont remplacées, respectivement, par les références à la " commission territoriale d'inscription ", à la " chambre territoriale de discipline " et à la " chambre territoriale des comptes ".
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Partie réglementaire
LIVRE IX : Dispositions relatives à l'outre-mer.
Titre VI : Dispositions spécifiques à Saint-Barthélemy
Chapitre Ier : Dispositions d'adaptation du livre Ier
Article R961-1
L'Etat peut, par convention, confier à un organisme qualifié implanté localement les tâches dévolues aux organismes désignés aux 1°, 2° et 6° de l'article R. 123-3 pour la gestion et la création des centres de formalités des entreprises.
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Partie réglementaire
LIVRE IX : Dispositions relatives à l'outre-mer.
Titre VII : Dispositions spécifiques à Saint-Martin
Chapitre Ier : Dispositions d'adaptation du livre Ier
Article R971-1
L'Etat peut, par convention, confier à un organisme qualifié implanté localement les tâches dévolues aux organismes désignés aux 1°, 2° et 6° de l'article R. 123-3 pour la gestion et la création des centres de formalités des entreprises.
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Code de commerce
Annexes de la partie réglementaire
Article Annexe 1-1
ANNEXE À L'ARTICLE R. 123-30.
Les principaux organismes destinataires des formalités des entreprises selon leur compétence sont :
1. Greffe du tribunal de commerce ou de grande instance statuant commercialement, lequel transmet à l'Institut national de la propriété industrielle (INPI).
2. Service des impôts.
3. Unions de recouvrement des cotisations de sécurité sociale et d'allocations familiales (URSSAF) ou caisses générales de sécurité sociale.
4. Organismes du régime général chargés de la gestion de l'assurance vieillesse ainsi que de la tarification et de la prévention des accidents du travail et des maladies professionnelles.
5. Organismes d'assurance maladie et d'assurance vieillesse des professions artisanales, industrielles, commerciales et libérales.
6. Caisses départementales ou pluridépartementales de mutualité sociale agricole.
7. Inspection du travail.
8. Chambres des métiers et de l'artisanat, lesquelles retransmettent à l'Institut national de la propriété industrielle (INPI).
9. Institut national de la statistique et des études économiques (INSEE). Chambre nationale de la batellerie artisanale.
Article Annexe 1-2
ANNEXE AUX ARTICLES R. 123-5 ET R. 123-30.
Formalités des entreprises déposées aux centres de formalités des entreprises.
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Chaque centre est compétent pour recevoir les déclarations ci-dessous énumérées et les actes et pièces dont la remise est exigée par l'un des organismes destinataires.
I. - Personnes physiques exerçant une activité non salariée et entreprises individuelles
1. Création :
Immatriculation principale au registre du commerce et des sociétés.
Immatriculation au répertoire des métiers.
Immatriculation au registre des entreprises de la batellerie artisanale.
Immatriculation au registre des agents commerciaux.
Inscription au répertoire national des entreprises et des établissements.
Déclaration d'existence au service des impôts.
Affiliation aux URSSAF, aux caisses générales de sécurité sociale ou aux caisses de mutualité sociale agricole.
Déclaration à l'inspection du travail.
2. Transfert hors du ressort géographique de l'un des organismes ou administrations destinataires de la déclaration initiale.
3. Modifications :
Changement de nom lié ou non avec le mariage de la personne immatriculée ou du chef d'entreprise.
Changement de nom commercial.
Changement de l'enseigne.
Changement de l'adresse de correspondance.
Changement, extension ou cessation partielle de l'activité.
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Cessation temporaire d'activité et reprise d'activité après cette cessation. Mise en location-gérance soit du fonds de commerce de l'établissement principal, soit de l'établissement artisanal.
Reprise du fonds ou de l'établissement par le loueur après une location-gérance.
Renouvellement du contrat de location-gérance.
Changement du mode d'exploitation du fonds de commerce de l'établissement principal.
Mention du conjoint collaborateur.
Transfert de l'établissement principal ou de l'entreprise à l'intérieur du ressort géographique de l'un des organismes ou administrations destinataires de la déclaration initiale.
4. Cessation définitive de l'activité, décès, radiation.
II. - Personnes morales
1. Création :
Immatriculation principale au registre du commerce et des sociétés.
Immatriculation au répertoire des métiers.
Immatriculation au registre de la batellerie artisanale.
Inscription au répertoire national des entreprises et des établissements.
Déclaration d'existence au service des impôts.
Affiliation aux URSSAF, aux caisses générales de sécurité sociale ou aux caisses de mutualité sociale agricole.
Déclaration à l'inspection du travail.
2. Transfert du siège social hors du ressort géographique de l'un des organismes ou administrations destinataires de la déclaration initiale.
3. Modifications :
Changement de raison sociale ou de dénomination sociale.
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Changement de l'enseigne.
Changement de l'adresse de correspondance.
Changement relatif à la forme juridique, au capital et à la durée de la personne morale.
Changement des dirigeants, gérants ou associés.
Changement, extension ou cessation partielle de l'activité de la personne morale.
Cessation temporaire d'activité et reprise d'activité après cette cessation. Mise en location-gérance ou reprise après location-gérance du fonds de commerce.
Renouvellement du contrat de location-gérance.
Changement du mode d'exploitation du fonds de commerce de la société.
Transfert du siège social à l'intérieur du ressort de l'un des organismes ou administrations destinataires de la déclaration initiale.
4. Cessation définitive d'activité, fin de la personne morale, radiation.
III. - Etablissements
1. Ouverture :
Mention au répertoire des métiers.
Mention au registre de la batellerie artisanale.
Immatriculation secondaire ou inscription complémentaire au registre du commerce et des sociétés.
Déclaration d'ouverture : au service des impôts, aux URSSAF ou aux caisses générales de sécurité sociale et à l'inspection du travail.
2. Modifications :
Changement de l'enseigne.
Changement de l'adresse de correspondance.
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Changement, extension ou cessation partielle de l'activité.
Cessation temporaire d'activité ou reprise d'activité après cessation.
Mise en location-gérance du fonds de commerce ou de l'établissement artisanal ou reprise après location-gérance.
Renouvellement du contrat de location-gérance.
Changement du mode d'exploitation de l'activité.
Transfert.
3. Cessation définitive d'activité, radiation.
Ne relèvent pas de la compétence des centres :
Les déclarations fiscales concernant l'assiette ou le renouvellement des droits ou taxes.
Les déclarations relatives aux modifications de l'effectif des salariés pour fixer notamment le montant des contributions sociales.
Les déclarations relatives à des mesures de publicité autres que celles figurant au registre du commerce et des sociétés et au registre des agents commerciaux.
Les formalités prévues dans le cadre de la déclaration unique d'embauche.
Les déclarations concernant une personne morale de droit public non soumise à immatriculation au registre du commerce et des sociétés.
Article Annexe 1-3
ANNEXE AUX ARTICLES R. 123-57 ET 123-58.
1° Pour l'Allemagne :
die Aktiengesellschaft ;
die Kommanditgesellschaft auf Aktien ;
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die Gesellschaft mit beschränkter Haftung ;
2° Pour l'Autriche :
die Aktiengesellschaft ;
die Gesellschaft mit beschraenkter Haftung ;
3° Pour la Belgique :
de naamloze vennootschap ;
de commanditaire vennootschap op aandelen ;
de personenvennootschap met beperkre aansprakelijheid ;
4° Pour la Bulgarie :
5° Pour Chypre :
6° Pour le Danemark :
aktieselskab ;
kommanditaktieselskab ;
anpartsselskab ;
7° Pour l'Espagne :
la sociedad anonima ;
la sociedad en comandita por acciones ;
la sociedad de responsabilidad limitada ;
8° Pour l'Estonie :
aktsiaselts ;
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osaühing ;
9° Pour la Finlande :
yksityinen osakeyhtiö/privat aktiebolag ;
yulkinen osakeyhtiö/publikt aktiebolag ;
10° Pour la France :
la société anonyme ;
la société en commandite par actions ;
la société à responsabilité limitée ;
la société par actions simplifiée ;
11° Pour la Grèce :
12° Pour la Hongrie :
részvénytajrsasajg ;
korlajtolt felelosségu tajrsasajg ;
13° Pour l'Irlande :
the public company limited by shares ;
the public company limited by guarantee and having a share capital ;
the private company limited by shares or by guarantee ;
14° Pour l'Italie :
sociétà per azioni ;
sociétà in accomandita per azioni ;
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sociétà a responsabilità limitata ;
15° Pour la Lettonie :
Akciju sabiedriba ;
sabiedriba ar ierobezotu atbildibu ;
komanditsabiedriba ;
16° Pour la Lituanie :
akcine bendrove ;
uzdaroji akcine bendrove ;
17° Pour le Luxembourg :
la société anonyme ;
la société en commandite par actions ;
la société à responsabilité limitée ;
18° Pour Malte :
kumpanija pubblika ;
public limited liability company ;
kumpanija privata ;
private limited liability company ;
19° Pour les Pays-Bas :
de naamloze vennootschap ;
de besloten vennootschap met beperkte aansprakelijkheid ;
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20° Pour la Pologne :
spojlka z ograniczona odpowiedzialnoscia ;
spojlka komandytowoakcyjna ;
spojlka akcyjna ;
21° Pour le Portugal :
sociedade anonima ;
sociedade en commandita por acçoes ;
sociedade por quotas ;
22° Pour la Roumanie :
23° Pour le Royaume-Uni :
the public company limited by shares ;
the public company limited by guarantee and having a share capital ;
the private company limited by shares or by guarantee ;
24° Pour la Slovaquie :
akciovaj spolecnost ;
spolecnost s rucenijm obmedzenm' ;
25° Pour la Slovénie :
delniska druzba ;
druzba z omejeno odgovornostjo ;
26° Pour la Suède :
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aktiebolag ;
komaditna delniska druzba ;
27° Pour la République tchèque :
spolecnost s rucenijm omezenm ;
akciovaj spolecnost.
Article Annexe 2-1
MODÈLE DE STATUTS TYPES DES SOCIÉTÉS À RESPONSABILITÉ LIMITÉE DONT L'ASSOCIÉ UNIQUE, PERSONNE PHYSIQUE, ASSUME PERSONNELLEMENT LA GÉRANCE
Société : (dénomination sociale)
Société à responsabilité limitée :
Au capital de : (à compléter)
Siège social : (à compléter) :
Le soussigné :
M. / Mme (nom de naissance et,
le cas échéant, nom d'usage, prénom, domicile, date et lieu de naissance) a établi ainsi qu'il suit les statuts d'une société à responsabilité limitée dont le gérant est l'associé unique.
Statuts
Article 1er
Forme
La société est à responsabilité limitée.
Article 2
Objet
La société a pour objet : (indiquer ici toutesles activités qui seront exercées par la société).
Et, plus généralement, toutes opérations, de quelque nature qu'elles soient, juridiques, économiques et financières, civiles et commerciales, se rattachant à l'objet sus (indiqué ou à tous autres objets similaires ou connexes, de nature à favoriser, directement ou indirectement, le but poursuivi par la société, son extension ou son développement.
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Article 3
Dénomination
Sa dénomination sociale est : (nom de la société).
Son sigle est : (facultatif).
Dans tous les actes et documents émanant de la société, cette dénomination doit être précédée ou suivie immédiatement des mots : société à responsabilité limitée ou des initiales : SARL et de l'énonciation du capital social.
Article 4
Siège social
Le siège social est fixé à : (indiquer icil'adresse du siège social).
Il peut être transféré par décision de l'associé unique.
Article 5
Durée
La société a une durée de années (indiquerici la durée, sans qu'elle puisse excéder quatre-vingt-dix-neuf ans) sauf dissolution anticipée ou prorogation.
Article 6
Apports
Apports en numéraire :
(indiquer ici le montant des espèces en euros).
M. / Mme apporte et verse à la société
une somme totale de
La somme totale versée, soit,
a été déposée le
au crédit d'un compte ouvert au nom de la société en formation, à (indiquer ici les coordonnéesde l'établissement financier).
Apports de biens communs (le cas échéant) :
(Il s'agit des biens appartenant à la communauté des époux.)
Cette somme provient de la communauté de biens existant entre l'apporteur et son conjoint :
(nom, prénoms), qui a été préalablement averti de cet apport par lettre recommandée avec demande d'avis de réceptionreçue le, comportant toutes précisions utilesquant aux finalités et modalités de l'opération d'apport.
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Par lettre en date du,
M. / Mme, conjoint de l'apporteur, a renoncé expressément à la faculté d'être personnellement associé, pour la moitié des parts souscrites.L'original de cette lettre est demeuré annexé aux présents statuts.
Apports par une personne ayant contracté un PACS (le cas échéant) :
M. / Mme réalise le présentapport pour son compte personnel et est en conséquence seul propriétaire des parts sociales qui lui sont attribuées en rémunération de son apport.
Article 7
Capital social et parts sociales
Le capital est fixé à la somme de : (indiquer le montant en euros.)
Le capital est divisé en
(indiquer ici le nombre de parts sociales pour le montant du capital et, de manière facultative, le montant de ces parts) (parts égales d'un montant de chacune), intégralement
libérées (ou : libérées chacune à concurrence du cinquième, du quart, de la moitié, etc.). La libération du surplus, à laquelle il s'oblige, interviendra en une ou plusieurs fois sur décision du gérant.
Article 8
Gérance
La société est gérée par son associé unique, M. / Mme
Article 9
Décisions de l'associé
L'associé unique exerce les pouvoirs et prérogatives de l'assemblée générale dans la société pluripersonnelle. Ses décisions sont répertoriées sur un registre coté et paraphé. Il ne peut en aucun cas déléguer ses pouvoirs.
Article 10
Exercice social
Chaque exercice social a une durée de douze mois qui commence le et finit le (par exception,
le premier exercice sera clos le).
Article 11
Comptes sociaux
L'inventaire et les comptes annuels sont établis par l'associé unique gérant. Leur dépôt au registre du commerce et des sociétés dans le délai de six mois à compter de la clôture de l'exercice vaut approbation des comptes.
Le rapport de gestion est établi chaque année par l'associé unique gérant et tenu à la disposition de
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toute personne qui en fait la demande.
Article 12
Actes accomplis pour le compte de la société en formation
L'état des actes accomplis pour le compte de la société en formation a été annexé aux statuts. La signature de ceux-ci emportera reprise de ces engagements par la société, lorsque celle-ci aura été immatriculée au registre du commerce et des sociétés.
Article 13
Frais et formalités de publicité
Les frais afférents à la constitution des présents statuts et de leurs suites seront pris en charge par la société.
Tous pouvoirs sont donnés au porteur d'une copie des présentes à l'effet d'accomplir toutes les formalités légales de publicité.
Fait à, le
En exemplaires.
Signature de l'associé
Article Annexe 2-2
TABLEAU 1
Annexe aux articles R. 225-81, R. 225-83 et R. 225-102
Résultats financiers de la société au cours des cinq derniers exercices
NATURE DES INDICATIONS 20.. 20.. 20.. 20.. 20..
I. - Situation financière en fin d'exercice :
a) Capital social.
b) Nombre d'actions émises.
c) Nombre d'obligations convertibles en actions.
II. - Résultat global des opérations effectives :
a) Chiffre d'affaires hors taxe.
b) Bénéfices avant impôt, amortissements et provisions.
c) Impôts sur les bénéfices.
d) Bénéfices après impôts, amortissements et provisions.
e) Montant des bénéfices distribués (1).
III. - Résultat des opérations réduit à une seule action (2) :
a) Bénéfice après impôt, mais avant amortissements et provisions.
b) Bénéfice après impôt, amortissements et provisions.
c) Dividende versé à chaque action (1).
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NATURE DES INDICATIONS 20.. 20.. 20.. 20.. 20..
IV. - Personnel :
a) Nombre de salariés.
b) Montant de la masse salariale.
c) Montant des sommes versées au titre des avantages sociaux (sécurité sociale, oeuvres, etc.).
(1) Pour l'exercice dont les comptes seront soumis à l'assemblée générale des actionnaires, indiquer le montant des bénéfices dont la distribution est proposée par le conseil d'administration, le directoire ou les gérants.
(2) Si le nombre des actions a varié au cours de la période de référence, il y a lieu d'adapter les résultats indiqués et de rappeler les opérations ayant modifié le montant du capital.
TABLEAU 2
Annexe aux articles R. 233-2 et R. 232-10
Renseignements concernant les filiales et participations
SOCIÉTÉS OU GROUPES DE SOCIÉTÉS
CAPITAL RÉSERVES QUOTE-PART de capital détenue (en pourcentage)
VALEUR d'inventaire des titres détenus
PRÊTS ET avances consentis par la société et non remboursées
MONTANT des cautions et avals fournis par la société
CHIFFRE d'affaires du dernier exercice
BÉNÉFICE net ou perte du dernier exercice
DIVIDENDES encaissés par la société au cours de l'exercice
OBSERVATIONS (1)
I. - RENSEIGNEMENTS À FOURNIR LORSQUE LA SOCIÉTÉ N'A PAS ANNEXÉ À SON BILAN UN BILAN ET DES COMPTES CONSOLIDÉS ETABLIS CONFORMÉMENT À L'ARTICLE R. 233-3
A. - Renseignements détaillés concernant les participations dont la valeur d'inventaire excède 1 % du capital de la société astreinte à la publication
1. Filiales (50 % au moins du capital détenu par la société) :
Société a (dénomination, siège social)
Société b
2. Participations (10 à 50 % du capital détenu par la société) :
Société x
Société y
B. - Renseignements globaux concernant les autres filiales ou participations
1. Filiales non reprises au paragraphe A :
a) Filiales françaises (ensemble)
b) Filiales étrangères (ensemble)
2. Participations non reprises au paragraphe A :
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SOCIÉTÉS OU GROUPES DE SOCIÉTÉS
CAPITAL RÉSERVES QUOTE-PART de capital détenue (en pourcentage)
VALEUR d'inventaire des titres détenus
PRÊTS ET avances consentis par la société et non remboursées
MONTANT des cautions et avals fournis par la société
CHIFFRE d'affaires du dernier exercice
BÉNÉFICE net ou perte du dernier exercice
DIVIDENDES encaissés par la société au cours de l'exercice
OBSERVATIONS (1)
a) Dans les sociétés françaises (ensemble)
b) Dans les sociétés étrangères (ensemble)
II. - RENSEIGNEMENTS À FOURNIR LORSQUE LA SOCIÉTÉ A ANNEXÉ À SON BILAN UN BILAN ET DES COMPTES CONSOLIDÉS ÉTABLIS CONFORMÉMENT À L'ARTICLE R. 233-3
1. Filiales :
a) Filiales françaises (ensemble)
b) Filiales étrangères (ensemble)
2. Participations :
a) Dans les sociétés françaises (ensemble)
b) Dans les sociétés étrangères (ensemble)
(1) Indiquer notamment dans cette colonne au cadre I, paragraphe A, les dates d'ouverture et de clôture des exercices des sociétés dans lesquelles sont détenues des participations lorsque ces dates ne coïncident pas avec celles de l'ouverture et de la clôture de l'exercice de la société.
Article Annexe 4-1
JURIDICTIONS COMPÉTENTES POUR CONNAÎTRE, EN APPLICATION DE L'ARTICLE L. 420-7, DES PROCÉDURES APPLICABLES AUX PERSONNES QUI NE SONT NI COMMERCANTS NI ARTISANS.
SIÈGE DES TRIBUNAUX de grande instance RESSORT
Marseille. Le ressort des cours d'appel d'Aix-en-Provence, Bastia, Montpellier et Nîmes.
Bordeaux. Le ressort des cours d'appel d'Agen, Bordeaux, Limoges, Pau et Toulouse.
Lille. Le ressort des cours d'appel d'Amiens, Douai, Reims et Rouen.
Fort-de-France. Le ressort des cours d'appel de Basse-Terre et de Fort-de-France.
Lyon. Le ressort des cours d'appel de Chambéry, Grenoble, Lyon et Riom.
Nancy. Le ressort des cours d'appel de Besançon, Colmar, Dijon, Metz et Nancy.
Paris. Le ressort des cours d'appel de Bourges, Paris, Orléans, Saint-Denis-de-la-Réunion et Versailles.
Rennes. Le ressort des cours d'appel d'Angers, Caen, Poitiers et Rennes.
Article Annexe 4-2
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JURIDICTIONS COMPÉTENTES POUR CONNAÎTRE, EN APPLICATION DE L'ARTICLE L. 420-7, DES PROCÉDURES APPLICABLES AUX PERSONNES QUI SONT COMMERCANTS OU ARTISANS.
SIÈGE DES TRIBUNAUX de commerce et des tribunaux mixtes de commerce RESSORT
Marseille. Le ressort des cours d'appel d'Aix-en-Provence, Bastia, Montpellier et Nîmes.
Bordeaux. Le ressort des cours d'appel d'Agen, Bordeaux, Limoges, Pau et Toulouse.
Lille. Le ressort des cours d'appel d'Amiens, Douai, Reims et Rouen.
Fort-de-France. Le ressort des cours d'appel de Basse-Terre et de Fort-de-France.
Lyon. Le ressort des cours d'appel de Chambéry, Grenoble, Lyon et Riom.
Nancy. Le ressort des cours d'appel de Besançon, Colmar, Dijon, Metz et Nancy.
Paris. Le ressort des cours d'appel de Bourges, Paris, Orléans, Saint-Denis-de-la-Réunion et Versailles.
Rennes. Le ressort des cours d'appel d'Angers, Caen, Poitiers et Rennes.
Article Annexe 4-2-1
JURIDICTIONS COMPÉTENTES POUR CONNAÎTRE, EN APPLICATION DE L'ARTICLE L. 442-6, DES PROCÉDURES APPLICABLES AUX PERSONNES QUI SONT COMMERÇANTS OU ARTISANS
Article Annexe 4-2-2
JURIDICTIONS COMPÉTENTES POUR CONNAÎTRE, EN APPLICATION DE L'ARTICLE L. 442-6, DES PROCÉDURES APPLICABLES AUX PERSONNES QUI NE SONT NI COMMERÇANTS NI ARTISANS
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Article Annexe 4-3
DOSSIER DE NOTIFICATION D'UNE OPÉRATION DE CONCENTRATION.
1. Description de l'opération, comprenant :
a) Une copie des actes soumis à notification et des comptes rendus des organes délibérants relatifs à la concentration accompagnée, si nécessaire, d'une traduction en langue française de ces documents ;
b) Une présentation des aspects juridiques et financiers de l'opération, mentionnant, le cas échéant, le montant de l'acquisition ;
c) Une présentation des objectifs économiques de l'opération, comportant notamment une évaluation des avantages attendus ;
d) La liste des Etats dans lesquels l'opération a été ou sera notifiée et les dates des différentes notifications ;
e) Le cas échéant, le mandat des conseils ou personnes chargées de la notification ;
f) Un résumé de l'opération ne contenant ni information confidentielle ni secret d'affaires, destiné à être publié sur le site internet du ministre chargé de l'économie en application de l'article L. 430-3.
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2. Présentation des entreprises concernées et des groupes auxquels elles appartiennent, comprenant, pour chacune des entreprises ou groupes :
a) Les comptes sociaux et, lorsqu'ils existent, les comptes consolidés et le dernier rapport annuel ;
b) La liste des principaux actionnaires, les pactes d'actionnaire, ainsi que la liste et le montant des participations détenues par l'entreprise ou ses actionnaires dans d'autres entreprises, si cette participation confère directement ou indirectement au moins une minorité de blocage ou la faculté de nommer au moins un membre du conseil d'administration ;
c) Un tableau récapitulatif de données financières pour les trois derniers exercices clos, selon le modèle figurant en annexe 4-4, et, pour la ou les activités sur lesquelles porte l'opération qui ne disposaient pas, avant ladite opération, de la personnalité juridique, un tableau récapitulatif selon le modèle figurant en annexe 4-5 ;
d) La liste des opérations de concentration réalisées au cours des trois dernières années ;
e) La liste et la description de l'activité des entreprises avec lesquelles les entreprises ou groupes concernés et les groupes auxquels elles appartiennent entretiennent des liens contractuels significatifs et durables sur les marchés concernés par l'opération, la nature et la description de ces liens.
3. Marchés concernés.
Un marché concerné se définit comme un marché pertinent, défini en termes de produits et en termes géographiques, sur lequel l'opération notifiée a une incidence directe ou indirecte.
Un marché pertinent de produits comprend tous les produits ou services que le consommateur considère comme interchangeables ou substituables en raison de leurs caractéristiques, de leur prix et de l'usage auquel ils sont destinés. Des produits, sans être substituables au sens de la phrase précédente, peuvent être regardés comme relevant d'un même marché, dès lors qu'ils requièrent la même technologie pour leur fabrication et qu'ils font partie d'une gamme de produits de nature à caractériser ce marché.
Un marché pertinent géographique est un territoire sur lequel sont offerts et demandés des biens et des services, sur lequel les conditions de concurrence sont suffisamment homogènes et qui peut être distingué de zones géographiques voisines, parce que, en particulier, les conditions de concurrence y diffèrent de manière appréciable.
La notification comprend une définition de chaque marché concerné ainsi qu'une description précise des arguments ayant conduit à la délimitation proposée et, pour chaque marché concerné, les informations suivantes :
a) Part de marché des entreprises concernées et des groupes auxquels elles appartiennent ;
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b) Part de marché des principaux opérateurs concurrents.
4. Marchés affectés.
Un marché concerné est considéré comme affecté :
- si deux ou plusieurs entreprises ou groupes visés au point 2 du présent formulaire exercent des activités sur ce marché et que leurs parts cumulées atteignent 25 % ou plus ;
- ou si une entreprise au moins visée au point 2 exerce des activités sur ce marché et qu'une autre de ces entreprises ou groupe exerce des activités sur un marché situé en amont ou en aval ou connexe, qu'il y ait ou non des relations de fournisseur à client entre ces entreprises, dès lors que, sur l'un ou l'autre de ces marchés, l'ensemble des entreprises ou groupes visés au point 2 atteignent 25 % ou plus.
Un marché peut également être affecté du fait de la disparition d'un concurrent potentiel due à l'opération.
Pour chaque marché affecté, les entreprises notifiantes fournissent les informations suivantes :
a) Une estimation de l'importance du marché en valeur et en volume ;
b) La part de marché des entreprises concernées et des groupes auxquels elles appartiennent ;
c) La part de marché, l'identité, l'adresse, les numéros de télécopieur et de téléphone, et l'adresse électronique des responsables compétents des principaux opérateurs concurrents ;
d) L'identité, l'adresse, les numéros de télécopieur et de téléphone des principaux clients, et l'adresse électronique des responsables compétents des principaux clients, ainsi que la part que représente chacun de ces clients dans le chiffre d'affaires de chacune des entreprises ou groupes visés au point 2 ;
e) L'identité, l'adresse, les numéros de télécopieur et de téléphone, et l'adresse électronique des responsables compétents des principaux fournisseurs ainsi que la part que représente chacun de ces fournisseurs dans le total des achats de chacune des entreprises ou groupes visés au point 2 ;
f) Les accords de coopération (horizontaux et verticaux) conclus par les entreprises ou groupes visés au point 2 sur les marchés affectés, tels que les accords de recherche et développement, les accords de licence, de fabrication en commun, de spécialisation, de distribution, d'approvisionnement à long terme et d'échanges d'information ;
g) Les facteurs susceptibles d'avoir une incidence sur l'accès aux marchés concernés (dispositions réglementaires, conditions d'accès aux matières premières, importance des dépenses de recherche et
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développement et de publicité, existence de normes, de licences, de brevets ou d'autres droits, importance des économies d'échelle, caractère spécifique de la technologie mise en oeuvre...) ;
h) Une description des canaux de distribution et des réseaux de service après-vente existant sur le marché ;
i) Les principaux facteurs contribuant à la détermination des prix et l'évolution de ceux-ci sur les cinq dernières années ;
j) Une estimation des capacités de production existant sur le marché et de leur taux moyen d'utilisation, ainsi qu'une évaluation de leur taux d'utilisation par les entreprises ou groupes visés au point 2 ;
k) Une analyse de la structure de la demande (degré de concentration de la demande, typologie des demandeurs, poids des collectivités et entreprises publiques, importance de la marque pour le consommateur, importance de la capacité à fournir une gamme complète de produits ou services...) ;
l) La liste et les coordonnées des principales organisations professionnelles.
5. Déclaration concluant la notification.
La notification se conclut par la déclaration suivante, signée par ou au nom de toutes les entreprises notifiantes, au sens de l'article L. 430-3 du présent code :
"Les soussignés déclarent que les informations fournies dans la présente notification sont, à leur connaissance, sincères, exactes et complètes, que toutes les estimations sont présentées comme telles et constituent les estimations les plus précises des faits en cause, et que tous les avis exprimés sont sincères.
Ils connaissent les dispositions de l'article L. 430-8 du code de commerce, notamment du III de cet article."
Article Annexe 4-4
TABLEAU RÉCAPITULATIF DES DONNÉES FINANCIÈRES POUR LES TROIS DERNIERS EXERCICES À JOINDRE AU DOSSIER DE NOTIFICATION D'UNE OPÉRATION DE CONCENTRATION.
Nom de l'entité : ... No SIREN (dans le cas d'une société française) : ...
Données consolidées : oui non (rayer la mention inutile).
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ExerciceNclos le : ExerciceN-1clos le : ExerciceN-2clos le :
Comptes de résultat
Chiffres d'affaires total hors taxesChiffres d'affaires hors taxes réalisé auprès des clients situés dans l'Union européenneChiffre d'affaire hors taxes réalisé auprès des clients situés en FranceValeur ajoutée bruteExcédent brut d'exploitationRésultat d'exploitationIntérêts et charges assimilées sur dette financièreProduits financiers des placementsProduits financiers des immobilisations financièresRésultat financierRésultat net (1)Part des actionnaires ou des associés minoritaires
Bilan Brut Net Brut Net Brut Net
Total du bilanImmobilisations incorporellesImmobilisations corporellesImmobilisations financièresCréances de l'actif circulantDisponibilités et valeurs mobilières de placement
ExerciceNclos le : ExerciceN-1clos le : ExerciceN-2clos le :
Fonds propres (2)Part des actionnaires ou des associés minoritairesProvisions pour risques et chargesDettes financièresAutres dettesEnsemble des dettes à plus d'un an de la clôture
Investissements et cessions
Acquisitions d'immobilisations corporelles et incorporellesAcquisitions ou argumentations d'immobilisations financièresPrix de cession des immobilisations cédées et valeur des autres diminutions d'immobilisations financières
Autres renseignements
Dépenses de recherche et développementDépenses de publicitéCapitalisation boursière à la clôture (3)Effectifs moyens
(1) Dans le cas de données consolidées, il s'agit du résultat de l'ensemble consolidé.(2) Non compris la part des actionnaires ou associés minoritaires dans le cas de données consolidées.(3) Dans le cas d'un groupe, donner le nom de la société cotée.
Article Annexe 4-5
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
TABLEAU RÉCAPITULATIF DES DONNÉES FINANCIÈRES CONCERNANT UNE ACTIVITÉ SANS PERSONNALITÉ JURIDIQUE À JOINDRE AU DOSSIER DE NOTIFICATION D'UNE OPÉRATION DE CONCENTRATION.
Activité :
ExerciceNclos le : ExerciceN-1clos le : ExerciceN-2clos le :
Comptes de résultat
Chiffres d'affaires total hors taxesChiffres d'affaires hors taxes réalisé auprès des clients situés dans l'Union européenneChiffre d'affaire hors taxes réalisé auprès des clients situés en FranceValeur ajoutée bruteExcédent brut d'exploitation
Eléments du Bilan Brut Net Brut Net Brut Net
Immobilisations incorporelles utilisées pour l'activitéImmobilisations corporelles utilisées pour l'activité
Créances de l'actif circulant pour l'activitéDisponibilités relatives à l'activitéDettes financières relatives à l'activitéAutres dettes relatives à l'activité
Investissement et cessions
Acquisition d'immobilisations corporelles et incorporellesPrix de cessions des immobilisations corporelles et incorporelles cédées
Autres renseignements
Dépenses de recherche et développementDépenses de publicitéEffectifs moyens
Article Annexe 4-6
LISTE DES AUTORITÉS ADMINISTRATIVES MENTIONNÉES À L'ARTICLE R. 463-9.
Autorité des marchés financiers.
Commission nationale de l'informatique et des libertés.
Médiateur du cinéma.
Autorité de contrôle prudentiel.
Conseil supérieur de l'audiovisuel.
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Autorité de régulation des communications électroniques et des postes.
Commission de régulation de l'électricité.
Article Annexe 6-1
Juridictions compétentes en métropole pour connaître, en application de l'article L. 610-1, des procédures applicables aux commerçants et artisans
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Article Annexe 6-2
JURIDICTIONS COMPÉTENTES PAR DÉPARTEMENT EN MÉTROPOLE POUR CONNAÎTRE, EN APPLICATION DE L'ARTICLE L. 610-1, DES PROCÉDURES APPLICABLES AUX PERSONNES QUI NE SONT NI COMMERCANTS NI ARTISANS.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
DÉPARTEMENT JURIDICTION RESSORT
Ain. TGI de Belley. Ressort du TGI.
TGI de Bourg-en-Bresse. Ressort du TGI.
Aisne. TGI de Laon. Ressort du TGI.
TGI de Saint Quentin. Ressort du TGI.
TGI de Soissons. Ressort du TGI.
Allier. TGI de Cusset. Ressort du TGI.
TGI de Montluçon. Ressort du TGI.
TGI de Moulins. Ressort du TGI.
Alpes-de-Haute-Provence. TGI de Digne. Le département.
Alpes (Hautes-) TGI de Gap. Le département.
Alpes-Maritimes. TGI de Grasse. Ressort du TGI.
TGI de Nice. Ressort du TGI.
Ardèche. TGI de Privas. Le département.
Ardennes. TGI de Charleville-Mézières. Le département.
Ariège. TGI de Foix. Le département.
Aube. TGI de Troyes. Le département.
Aude. TGI de Carcassonne. Ressort du TGI.
TGI de Narbonne. Ressort du TGI.
Aveyron. TGI de Milliau. Ressort du TGI.
TGI de Rodez. Ressort du TGI.
Bouches-du-Rhône. TGI d'Aix-en-Provence. Ressort du TGI.
TGI de Marseille. Ressort du TGI.
TGI de Tarascon. Ressort du TGI.
Calvados. TGI de Caen. Ressort du TGI.
TGI de Lisieux. Ressort du TGI.
Cantal. TGI d'Aurillac. Le département.
Charente. TGI d'Angoulème. Le département.
Charente-Maritime. TGI de La Rochelle. Ressort du TGI.
TGI de Rochefort. Ressort du TGI.
TGI de Saintes. Ressort du TGI.
Cher. TGI de Bourges. Le département.
Corrèze. TGI de Brive. Ressort du TGI.
TGI de Tulle. Ressort du TGI.
Corse-du-Sud. TGI d'Ajaccio. Le département.
Corse (Haute). TGI de Bastia. Le département.
Côte-d'Or. TGI de Dijon. Le département.
Côtes-d'Armor. TGI de Dinan. Ressort du TGI.
TGI de Guingamp. Ressort du TGI.
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DÉPARTEMENT JURIDICTION RESSORT
TGI de Saint-Brieuc. Ressort du TGI.
Creuse. TGI de Guéret. Le département.
Dordogne. TGI de Bergerac. Ressort du TGI.
TGI de Périgueux. Ressort du TGI.
Doubs. TGI de Besançon. Ressort du TGI.
TGI de Montbéliard. Ressort du TGI.
Drôme. TGI de Valence. Le département.
Essonne. TGI d'Evry. Le département, à l'exception de l'emprise de l'aérodrome de Paris-Orly.
Eure. TGI de Bernay. Ressort du TGI.
TGI d'Evreux. Ressort du TGI.
Eure-et-Loir. TGI de Chartres. Le département.
Finistère. TGI de Brest. Ressort du TGI.
TGI de Morlaix. Ressort du TGI.
TGI de Quimper. Ressort du TGI.
Gard. TGI d'Alès. Ressort du TGI.
TGI de Nîmes. Ressort du TGI.
Garonne (Haute-). TGI de Saint-Gaudens. Ressort du TGI.
TGI de Toulouse. Ressort du TGI.
Gers. TGI d'Auch. Le département, à l'exception de l'emprise de l'aérodrome d'Aire-sur-l'Adour.
Gironde. TGI de Bordeaux. Ressort du TGI.
TGI de Libourne. Ressort du TGI.
Hérault. TGI de Béziers. Ressort du TGI.
TGI de Montpellier. Ressort du TGI.
Ille-et-Vilaine. TGI de Rennes. Ressort du TGI.
TGI de Saint-Malo. Ressort du TGI.
Indre. TGI de Châteauroux. Le département.
Indre-et-Loire. TGI de Tours. Le département.
Isère. TGI de Bourgoin-Jallieu. Ressort du TGI.
TGI de Grenoble. Ressort du TGI.
TGI de Vienne. Ressort du TGI.
Jura. TGI de Dole. Ressort du TGI.
TGI de Lons-le-Saunier. Ressort du TGI.
Landes. TGI de Dax. Ressort du TGI.
TGI de Mont-de-Marsan. Ressort du TGI et l'emprise de l'aérodrome de l'Aire-sur-l'Adour.
Loir-et-Cher. TGI de Blois. Le département.
Loire. TGI de Montbrison. Ressort du TGI.
TGI de Rouanne. Ressort du TGI.
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DÉPARTEMENT JURIDICTION RESSORT
TGI de Saint-Etienne. Ressort du TGI.
Loire (Haute-). TGI du Puy-en-Velay. Le département.
Loire-Atlantique. TGI de Nantes. Ressort du TGI.
TGI de Saint-Nazaire. Ressort du TGI.
Loiret. TGI de Montargis. Ressort du TGI.
TGI d'Orléans. Ressort du TGI.
Lot. TGI de Cahors. Le département.
Lot-et-Garonne. TGI d'Agen. Ressort du TGI.
TGI de Marmande. Ressort du TGI.
Lozère. TGI de Mende. Le département.
Maine-et-Loire. TGI d'Angers. Ressort du TGI.
TGI de Saumur. Ressort du TGI.
Manche. TGI d'Avranches. Ressort du TGI.
TGI de Cherbourg. Ressort du TGI.
TGI de Coutances. Ressort du TGI.
Marne. TGI de Châlons-en-Champagne. Ressort du TGI.
TGI de Reims. Ressort du TGI.
Marne (Haute-). TGI de Chaumont. Le département.
Mayenne. TGI de Laval. Le département.
Meurthe-et-Moselle. TGI de Briey. Ressort du TGI.
TGI de Nancy. Ressort du TGI.
Meuse. TGI de Bar-le-Duc. Ressort du TGI.
TGI de Verdun. Ressort du TGI.
Morbihan. TGI de Lorient. Ressort du TGI.
TGI de Vannes. Ressort du TGI.
Moselle. TGI de Metz. Ressort du TGI.
TGI de Sarreguemines. Ressort du TGI.
TGI de Thionville. Ressort du TGI.
Nièvre. TGI de Nevers. Le département.
Nord. TGI d'Avesnes. Ressort du TGI.
TGI de Cambrai. Ressort du TGI.
TGI de Douai. Ressort du TGI.
TGI de Dunkerque. Ressort du TGI.
TGI d'Hazebrouck. Ressort du TGI.
TGI de Lille. Ressort du TGI.
TGI de Valenciennes. Ressort du TGI.
Oise. TGI de Beauvais. Ressort du TGI.
TGI de Compiègne. Ressort du TGI.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
DÉPARTEMENT JURIDICTION RESSORT
TGI de Senlis. Ressort du TGI.
Orne. TGI d'Alençon. Ressort du TGI.
TGI d'Argentan. Ressort du TGI.
Paris. TGI de Paris. Le département.
Pas-de-Calais. TGI d'Arras. Ressort du TGI.
TGI de Béthune. Ressort du TGI.
TGI de Boulogne-sur-Mer. Ressort du TGI.
TGI de Saint-Omer. Ressort du TGI.
Puy-de-Dôme. TGI de Clermont-Ferrand. Ressort du TGI.
TGI de Riom. Ressort du TGI.
Pyrénées-Atlantiques. TGI de Bayonne. Ressort du TGI.
TGI de Pau. Ressort du TGI.
Hautes-Pyrénées. TGI de Tarbes. Le département.
Pyrénées-Orientales. TGI de Perpignan. Le département.
Rhin (Bas-). TGI de Saverne. Ressort du TGI.
TGI de Strasbourg. Ressort du TGI.
Rhin (Haut-). TGI de Colmar. Ressort du TGI.
TGI de Mulhouse. Ressort du TGI.
Rhône. TGI de Lyon. Ressort du TGI.
TGI de Villefranche-sur-Saône. Ressort du TGI.
Saône (Haute-). TGI de Lure. Ressort du TGI.
TGI de Vesoul. Ressort du TGI.
Saône-et-Loire. TGI de Châlons-sur-Saône. Ressort du TGI.
TGI de Mâcon. Ressort du TGI.
Sarthe. TGI du Mans. Le département.
Savoie. TGI d'Albertville. Ressort du TGI.
TGI de Chambéry. Ressort du TGI.
Savoie (Haute-). TGI d'Annecy. Ressort du TGI.
TGI de Bonneville. Ressort du TGI.
TGI de Thonon-les-bains. Ressort du TGI.
Hauts-de-Seine. TGI Nanterre. Le département.
Seine-Maritime. TGI de Dieppe. Ressort du TGI.
TGI du Havre. Ressort du TGI.
TGI de Rouen. Ressort du TGI.
Seine-et-Marne. TGI de Fontainebleau. Ressort du TGI.
TGI de Maux. Ressort du TGI, à l'exception de l'emprise de l'aérodrome de Roissy-Charles-de-Gaulle.
TGI de Melun. Ressort du TGI.
Seine-Saint-Denis. TGI de Bobigny. Le département et l'emprise des aérodromes de Paris-Le Bourget et de Roissy-Charles-de-Gaulle.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
DÉPARTEMENT JURIDICTION RESSORT
Sèvres (Deux-). TGI de Bressuire. Ressort du TGI.
TGI Niort. Ressort du TGI.
Somme. TGI d'Abbeville. Ressort du TGI.
TGI d'Amiens. Ressort du TGI.
TGI de Péronne. Ressort du TGI.
Tarn. TGI d'Albi. Ressort du TGI.
TGI de Castres. Ressort du TGI.
Tarn-et-Garonne. TGI de Montauban. Le département.
Territoire de Belfort. TGI de Belfort. Le département.
Val-de-Marne. TGI de Créteil. Le département et l'emprise de l'aérodrome de Paris-Orly.
Val-d'Oise. TGI de Pontoise. Le département, à l'exception de l'emprise des aérodromes de Paris-Le Bourget et de Roissy-Charles-de-Gaulle.
Var. TGI de Draguignan. Ressort du TGI.
TGI de Toulon. Ressort du TGI.
Vaucluse. TGI d'Avignon. Ressort du TGI.
TGI de Carpentras. Ressort du TGI.
Vendée. TGI de La Roche-sur-Yon. Ressort du TGI.
TGI des Sables-d'Olonnes. Ressort du TGI.
Vienne. TGI de Poitiers. Le département.
Vienne (Haute-). TGI de Limoges. Le département.
Vosges. TGI d'Epinal. Ressort du TGI.
TGI de Saint-Dié. Ressort du TGI.
Yonne. TGI d'Auxerre. Ressort du TGI.
TGI de Sens. Ressort du TGI.
Yvelines. TGI de Versailles. Le département.
Article Annexe 6-3
Juridictions compétentes dans les départements d'outre-mer pour connaître, en application de l'article L. 610-1, des procédures applicables aux commerçants et artisans
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Article Annexe 6-4
JURIDICTIONS COMPÉTENTES DANS LES DÉPARTEMENTS D'OUTRE-MER POUR CONNAÎTRE, EN APPLICATION DE L'ARTICLE L. 610-1, DES PROCÉDURES APPLICABLES AUX PERSONNES QUI NE SONT NI COMMERCANTS NI ARTISANS.
DÉPARTEMENT JURIDICTION RESSORT
Guadeloupe. Tribunal de grande instance de Basse-Terre. Ressort du TGI.
Tribunal de grande instance de Pointe-à-Pitre. Ressort du TGI.
Guyane. Tribunal de grande instance de Cayenne. Le département.
Martinique. Tribunal de grande instance de Fort-de-France. Le département.
Réunion. Tribunal de grande instance de Saint-Denis. Ressort du TGI.
Tribunal de grande instance de Saint-Pierre. Ressort du TGI.
Article Annexe 7-1
Siège et ressort des tribunaux de commerce
Marmande
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Laon
Senlis
AbbevillePéronne
Saumur
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Dole
Lure
etDoubs Montbéliard
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Coutances
Argentan
Albertville
Bonneville
Cambrai
Hazebrouck
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Avesnes-sur-Helpe
Béthune
Saint-Omer
Bourgoin-Jallieu
Tulle
Montbrison
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Verdun
Saint-Dié-des-Vosges
Alès
Carpentras
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Montargis
Fontainebleau
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Rochefort
Bressuire
Les Sables-d'Olonne
Guingamp
Morlaix
Côtes-d'Armor Dinan
Moulins
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Riom
Saint-Gaudens
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Article Annexe 7-2
NOMBRE DES JUGES ET NOMBRE DES CHAMBRES DES TRIBUNAUX DE COMMERCE. DÉPARTEMENTS SIÈGE du tribunal de commerce NOMBRE DE JUGES du tribunal de
commerce NOMBRE DE CHAMBRES du tribunal de commerce
Cour d'appel d'Agen
Gers Auch 12 2
Lot Cahors 12 2
Lot-et-Garonne Agen 21 4
Cour d'appel d'Aix-en-Provence
Alpes-de-Haute-Provence Manosque 13 2
Alpes-Maritimes Antibes 26 4
Cannes 23 4
Grasse 16 3
Nice 45 7
Bouches-du-Rhône Aix-en-Provence 27 4
Salon-de-Provence 19 3
Marseille 80 12
Tarascon 20 3
Var Draguignan 19 3
Fréjus 24 4
Toulon 34 5
Cour d'appel d'Amiens
Aisne Saint-Quentin 22 4
Soissons 13 2
Oise Beauvais 15 3
Compiègne 16 3
Somme Amiens 21 4
Cour d'appel d'Angers
Maine-et-Loire Angers 28 5
Mayenne Laval 14 3
Sarthe Le Mans 22 4
Cour d'appel de Bastia
Corse-du-Sud Ajaccio 13 2
Haute-Corse Bastia 15 3
Cour d'appel de Besançon
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Doubs Besançon 19 3
Jura Lons-le-Saulnier 15 3
Haute-Saône Vesoul 15 3
Territoire de Belfort Belfort 18 3
Cour d'appel de Bordeaux
Charente Angoulême 20 3
Dordogne Bergerac 14 3
Périgueux 17 3
Gironde Bordeaux 48 7
Libourne 17 3
Cour d'appel de Bourges
Cher Bourges 13 2
Indre Châteauroux 16 3
Nièvre Nevers 15 3
Cour d'appel de Caen
Calvados Caen 28 5
Lisieux 18 3
Manche Cherbourg-Octeville 13 2
Coutances 14 3
Orne Alençon 15 3
Cour d'appel de Chambéry
Savoie Chambéry 28 5
Haute-Savoie Annecy 26 4
Thonon-les-Bains 17 3
Cour d'appel de Dijon
Côte-d'Or Dijon 28 5
Haute-Marne Chaumont 14 3
Saône-et-Loire Chalon-sur-Saône 20 3
Mâcon 14 3
Cour d'appel de Douai
Nord Douai 19 3
Dunkerque 18 3
Lille 41 7
Roubaix-Tourcoing 29 5
Valenciennes 22 4
Pas-de-Calais Arras 28 5
Boulogne-sur-Mer 25 4
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Cour d'appel de Grenoble
Haute-Alpes Gap 9 2
Drôme Romans-sur-Isère 25 4
Isère Grenoble 32 5
Vienne 19 3
Cour d'appel de Limoges
Corrèze Brive-la-Gaillarde 16 3
Creuse Guéret 9 2
Haute-Vienne Limoges 20 3
Cour d'appel de Lyon
Ain Bourg-en-Bresse 23 4
Loire Roanne 14 3
Saint-Etienne 29 5
Rhône Lyon 69 10
Villefranche-sur-Saône 12 3
Cour d'appel de Montpellier
Aude Carcassonne 17 3
Narbonne 13 2
Aveyron Rodez 13 2
Hérault Béziers 22 4
Montpellier 44 7
Pyrénées-Orientales Perpignan 25 4
Cour d'appel de Nancy
Meurthe-et-Moselle Briey 11 2
Nancy 24 4
Meuse Bar-le-Duc 11 2
Vosges Epinal 20 3
Cour d'appel de Nîmes
Ardèche Aubenas 15 3
Gard Nîmes 37 6
Lozère Mende 9 2
Vaucluse Avignon 35 6
Cour d'appel d'Orléans
Indre-et-Loire Tours 22 4
Loir-et-Cher Blois 15 3
Loiret Orléans 30 5
Cour d'appel de Paris
Paris Paris 172 25
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Essonne Evry 50 8
Seine-et-Marne Melun 36 6
Meaux 30 5
Seine-Saint-Denis Bobigny 66 10
Val-de-Marne Créteil 49 8
Yonne Auxerre 11 2
Sens 13 2
Cour d'appel de Pau
Landes Dax 15 3
Mont-de-Marsan 17 3
Pyrénées-Atlantiques Bayonne 17 3
Pau 20 3
Hautes-Pyrénées Tarbes 18 3
Cour d'appel de Poitiers
Charente-Maritime La Rochelle 24 4
Saintes 15 3
Deux-Sèvres Niort 16 3
Vendée La Roche-sur-Yon 19 3
Vienne Poitiers 17 3
Cour d'appel de Reims
Ardennes Sedan 15 3
Aube Troyes 17 3
Marne Châlons-en-Champagne 12 2
Reims 32 5
Cour d'appel de Rennes
Côtes-du-Nord Saint-Brieuc 22 4
Finistère Brest 21 4
Quimper 16 3
Ille-et-Vilaine Rennes 26 4
Saint-Malo 14 3
Loire-Atlantique Nantes 34 5
Saint-Nazaire 15 3
Morbihan Lorient 20 3
Vannes 14 3
Cour d'appel de Riom
Allier Cusset 14 3
Montluçon 12 2
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Cantal Aurillac 11 2
Haute-Loire Le Puy-en-Velay 14 3
Puy-de-Dôme Clermont-Ferrand 32 5
Cour d'appel de Rouen
Eure Bernay 10 2
Evreux 20 3
Seine-Maritime Dieppe 14 3
Le Havre 26 4
Rouen 34 5
Cour d'appel de Toulouse
Ariège Foix 10 2
Haute-Garonne Toulouse 52 8
Tarn Albi 12 2
Castres 14 3
Tarn-et-Garonne Montauban 15 3
Cour d'appel de Versailles
Eure-et-Loir Chartres 24 4
Hauts-de-Seine Nanterre 64 10
Val-d'Oise Pontoise 50 8
Yvelines Versailles 50 8
Article Annexe 7-3
Siège et ressort des tribunaux mixtes de commerce dans les départements d'outre-mer DÉPARTEMENT TRIBUNAL de grande instance SIÈGE ET RESSORT DES TRIBUNAUX MIXTES DE COMMERCE
Siège Ressort
Cour d'appel de Basse-Terre
Guadeloupe Basse-Terre Basse-Terre Ressort du tribunal de grande instance de Basse-Terre
Pointe-à-Pitre Pointe-à-Pitre Ressort du tribunal de grande instance de Pointe-à-Pitre
Cour d'appel de Fort-de-France
Martinique Fort-de-France Fort-de-France Ressort du tribunal de grande instance de Fort-de-France
Guyane Cayenne Cayenne Ressort du tribunal de grande instance de Cayenne
Cour d'appel de Saint-Denis-de-la-Réunion
La Réunion Saint-Pierre Saint-Pierre Ressort du tribunal de grande instance de Saint-Pierre
Article Annexe 7-4
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Nombre d'assesseurs des chambres commerciales des tribunaux de grande instance
des départements du Bas-Rhin, du Haut-Rhin et de la Moselle
DÉPARTEMENTS SIÈGE DE LA CHAMBRE COMMERCIALEdu tribunal de grande instance
NOMBRE D'ASSESSEURSde la chambre commercialedu tribunal de grande instance
Cour d'appel de Colmar
Bas-Rhin Saverne 8
Strasbourg 32
Haut-Rhin Colmar 12
Mulhouse 22
Cour d'appel de Metz
Moselle Metz 19
Sarreguemines 12
Thionville 12
Nombre de juges élus des tribunaux mixtes de commerce des départements d'outre-mer
DÉPARTEMENTS SIÈGE DU TRIBUNAL MIXTEde commerce NOMBRE DE JUGES ÉLUSdu tribunal mixte de commerce
Cour d'appel de Basse-Terre
Guadeloupe Basse-Terre 5
Pointe-à-Pitre 6
Cour d'appel de Fort-de-France
Martinique Fort-de-France 7
Guyane Cayenne 5
Cour d'appel de Saint-Denis de La Réunion
La Réunion Saint-Denis 5
Saint-Pierre 5
Article Annexe 7-4-1
PARTICIPATION AU FINANCEMENT DE LA BOURSE COMMUNE.
Tableau n° 1
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Tableau n° 2 NOMBRE DE GREFFIERS NOMBRE DE PARTS
1 1
2 3
3 4,5
4 5,5
5 6,5
+ de 5 Une part par associé supplémentaire
Article Annexe 7-5
Emoluments des greffiers des tribunaux de commerce TABLEAU I ANNEXÉ À L'ARTICLE R. 743-140
ACTES JUDICIAIRES (1) NUMÉROS NATURE DES ACTES ÉMOLUMENTStaux de base (2)
101 Acte de greffe. 1
102 Certificat. 1
103 Commission rogatoire : envoi et exécution. 5
104 Contredit sur la compétence. 7
105 Copie. 1
106 Vérification de dépens. 2
Copie certifiée conforme(en dehors de toute procédure)
107 Jugement. 2
108 Ordonnance. 2
109 Seconde copie certifiée conforme revêtue de la formule exécutoire. 3
Injonction de payer (procédure d')
110 Ordonnance d'injonction de payer. 9
111 Forfait de transmission des ordonnances d'injonction de payer. 7
112 Diligences relatives à l'ordonnance, y compris l'extrait d'immatriculation (K bis ou L bis) ou un certificat de non-inscription, réception et conservation de la requête.
9
113 Opposition à injonction de payer. 9
Jugements
114 Jugement (enrôlement, tenue des audiences, mise en forme, avis aux parties), quel que soit le nombre de renvois, pour deux parties.
25
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NUMÉROS NATURE DES ACTES ÉMOLUMENTStaux de base (2)
115 Par partie supplémentaire. 5
116 Jugement : forfait de transmission par partie. 10
Instruction avant jugement
117 Procédure devant un juge rapporteur. 7
118 Contrat ou calendrier de procédure. 7
119 Ordonnances autres que référés et injonctions de payer. 6
120 Prestation de serment. 3
Référés
121 Ordonnance de référé (enrôlement, tenue des audiences, mise en forme, avis aux parties), quel que soit le nombre de renvois pour deux parties.
15
122 Par partie supplémentaire. 5
123 Ordonnance de référé : forfait de transmission par partie. 7,70
124 Registres de commerce (saisine en matière de contentieux des). 8
125 Diligences liées à l'expertise. 15
126 Convocation ou avis. 1
127 Visa, cote et paraphe des livres. 2
Procédures ouvertes après le 1er janvier 2006 en application du livre VI du code de commerce
160 Diligences en matière d'enquête en application des articles L 621-1, alinéa 3, et L 651-4 du code de commerce, non compris le coût de la délivrance des copies ou extraits et des avis, notifications, convocations et communications.
10
161 Réception de la demande de mandat ad hoc, de conciliation, de sauvegarde, de redressement judiciaire et de liquidations judiciaires, conformément aux articles R. 611-18, R. 611-22, R. 621-1, R. 631-1 et R. 640-1, non compris le coût de la délivrance des copies ou extraits.
6
162 Diligences en cas de saisine d'office ou à la requête du procureur de la République, non compris le coût de la délivrance des copies ou extraits.
3
163 Convocation devant le juge-commissaire. 3
164 Convocation devant le président du tribunal (mandat ad hoc, conciliation : R. 611-19, R. 611-23 du code de commerce) ou le tribunal.
3
165 Avis au créancier en matière d'admission de créances sans débat contradictoire 1
166 Ordonnances du juge-commissaire après débat contradictoire. 6
167 Diligences relatives à la notification des jugements et des requêtes, aux significations et aux convocations par voie d'huissier.
6
168 Mention sur l'état des créances. 1
169 Dépôt et conservation des documents, actes ou pièces, y inclus procès-verbal et certificat de dépôt ou reçus de déclaration.
2
170 Extrait établi en vue des mesures de publicité. 1
(1) a) Les émoluments ainsi alloués comprennent le coût d'une copie certifiée conforme, revêtue de la formule exécutoire et d'une copie délivrée à chaque partie,b) En cas de radiation avant le prononcé d'un jugement ou d'une ordonnance, les deux tiers de l'émolument sont alloués au greffier, sauf dans le cas où un émolument a été spécialement perçu pour la saisine du tribunal,c) Les redevances perçues en matière commerciale au profit du Trésor par les greffiers en chef des tribunaux de grande instance sont calculées conformément aux dispositions ci-dessus.(2) Voir l'article 743-142.
TABLEAU II ANNEXÉ À L'ARTICLE R. 743-140
Registre du commerce et des sociétés Registre des agents commerciaux NUMÉROS NATURE DES ACTES ÉMOLUMENTS (taux de base)
A. - Registre du commerce et des sociétés (1)Immatriculation principale, immatriculation secondaire, inscription complémentaire (2)
201 Personne physique. 36
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NUMÉROS NATURE DES ACTES ÉMOLUMENTS (taux de base)
202 Personne morale : groupements d'intérêt économique, sociétés commerciales, sociétés non commerciales, établissements publics.
44
203 Inscriptions modificatives (3) : personne physique. 32
204 Inscriptions modificatives et mentions d'office sous réserve des cas prévus par l'article R. 143-145 (3) : personne morale (groupements d'intérêt économique, sociétés commerciales, sociétés non commerciales, établissements publics).
42
205 Diligences spécifiques en cas de transformation de sociétés. 15
206 Mise à jour des renseignements figurant dans les immatriculations principales aux immatriculations secondaires et dans les immatriculations secondaires aux immatriculations principales de personnes physiques.
18
207 Mise à jour des renseignements figurant dans les immatriculations principales aux immatriculations secondaires et dans les immatriculations secondaires aux immatriculations principales des personnes morales.
25
208 Notification des mises à jour des immatriculations principales et secondaires concernant les personnes physiques.
6
209 Notification des mises à jour des immatriculations principales et secondaires concernant les personnes morales.
8
210 Dépôt des comptes annuels. 5
211 Dépôt d'actes ou de pièces pour la publicité des sociétés (4), y inclus le certificat de dépôt. 6
212 Certificat négatif d'immatriculation, communication d'actes ou de pièces déposées. 1
213 Extrait du registre du commerce et des sociétés (5). 2
214 Relevé historique des événements au registre du commerce et des sociétés. 5
215 Copie des comptes et rapports annuels (forfait, quel que soit le nombre de page). 6
216 Copie certifiée conforme (par page). 0,33
217 Copie de statuts, actes ou de pièces déposées (forfait). 6
218 Diligences de transmission de la formalité à l'INPI. 2
B. - Registre des agents commerciaux
221 Immatriculation (6) comprenant les émoluments de radiation. 6
222 Inscription modificative (6). 2
223 Extrait d'inscription de la déclaration. 2
(1) Le greffier réclame distinctement le montant des taxes perçues pour le compte de l'Institut national de la propriété industrielle et des frais d'insertion au BODACC.(2) Cet émolument rémunère forfaitairement l'ensemble des formalités liées à l'immatriculation principale, l'immatriculation secondaire ou l'inscription complémentaire et inclut le coût de la radiation. Il inclut également le coût de la délivrance au requérant de cinq extraits, en ce qui concerne l'immatriculation principale, l'immatriculation secondaire ou l'inscription complémentaire, et de quatre extraits, en ce qui concerne la radiation, ainsi que celui des frais postaux. Lorsque l'immatriculation est effectuée en application des articles R. 743-162 et R. 743-168 du code de commerce, les émoluments ainsi prévus sont fixés à neuf taux de base, en ce qui concerne l'immatriculation principale et l'immatriculation secondaire, y compris les frais postaux.(3) Cet émolument rémunère forfaitairement l'ensemble des formalités liées à l'inscription modificative. Il inclut le coût de la délivrance au requérant de quatre extraits et celui des frais postaux.(4) Pour la publicité des sociétés, il n'est perçu qu'un émolument, quel que soit le nombre des actes et des pièces déposés simultanément par un même intéressé.(5) Il s'agit des extraits K bis et L bis délivrés aux tiers ou des extraits à délivrer, en plus des extraits compris dans le forfait, à la personne assujettie, sur leur demande écrite. L'ensemble de ces demandes est répertorié au greffe.(6) Lorsque l'immatriculation ou la radiation est effectuée en application des articles R. 743-162 et R. 743-168 du code de commerce, les émoluments ainsi prévus sont réduits de moitié.
TABLEAU III ANNEXÉ À L'ARTICLE R. 743-140
Privilèges et sûretés NUMÉROS NATURE DES ACTES ÉMOLUMENTS(taux de base)
A. - Privilège du Trésor en matière fiscale
301 Première inscription, radiation totale ou partielle d'une inscription non périmée. 1,5
302 Inscription suivante, renouvellement d'une inscription ou subrogation. 2
303 Délivrance d'un état d'inscription positif ou négatif, quel que soit le nombre d'inscriptions révélées. 2
304 Mention d'une contestation en marge d'une inscription. 1
B. - Privilège de la sécurité sociale et des régimes complémentaires
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NUMÉROS NATURE DES ACTES ÉMOLUMENTS(taux de base)
Inscription, radiation totale d'une inscription non périmée
310 Montant des sommes privilégiées inférieur à 16 000 taux de base. 7
311 Montant des sommes privilégiées supérieur ou égal à 16 000 taux de base. 31
Radiation partielle d'une inscription non périmée
312 Montant des sommes privilégiées inférieur à 16 000 taux de base. 7
313 Montant des sommes privilégiées supérieur ou égal à 16 000 taux de base. 31
Renouvellement d'une inscription, subrogation
314 Montant des sommes privilégiées inférieur à 16 000 taux de base. 5
315 Montant des sommes privilégiées supérieur ou égal à 16 000 taux de base. 16
316 Mention d'une saisie en marge des différentes inscriptions concernant un même débiteur, radiation partielle ou totale de ces inscriptions
1
317 Délivrance d'un état d'inscription positif ou négatif, quel que soit le nombre d'inscriptions révélées. 2
318 Délivrance d'un certificat de subrogation, de mention de saisie, de radiation de cette mention, de radiation d'inscription.
1
C. - Vente et nantissement des fonds de commerce
Inscription, y compris radiation totale d'une inscription non périmée(montant de la somme garantie)
320 Montant inférieur à 16 000 taux de base. 14
321 Montant supérieur ou égal à 16 000 et inférieur à 32 000 taux de base. 62
322 Montant supérieur ou égal à 32 000 taux de base. 93
Radiation partielle d'une inscription non périmée
323 Montant inférieur à 16 000 taux de base. 7
324 Montant supérieur ou égal à 16 000 taux de base. 31
Mention d'antériorité ou de subrogation, renouvellement d'inscription
325 Montant inférieur à 16 000 taux de base. 5
326 Montant supérieur ou égal à 16 000 taux de base. 16
327 Procès-verbal de dépôt, certificat de dépôt et certificat constatant une transcription, une cession d'antériorité ou de radiation. Pour l'ensemble de ces formalités.
3
328 Etat d'inscription positif ou négatif (quel que soit le nombre des inscriptions). 2
329 Rédaction de la déclaration de créance et certificat constatant cette déclaration. 2
330 Mention de changement de siège de fonds, certificat d'inscription des ventes, cessions ou nantissements en ce qu'ils s'appliquent aux brevets d'invention et aux licences, aux marques de fabrique et de commerce, aux dessins et modèles industriels.
1
331 Délivrance des copies de bordereaux d'inscription et des actes de vente sous seing privé déposés au greffe.
1
332 Copie certifiée conforme. 2
D. - Nantissement d'un fonds agricole ou d'un fonds artisanal
340 Les émoluments alloués aux greffiers sont égaux à ceux prévus pour des actes ou formalités analogues en cas de nantissement de fonds de commerce.
F. - Nantissement judiciaire
350 Les émoluments alloués aux greffiers sont égaux à ceux prévus pour des actes ou formalités analogues en cas de nantissement de fonds de commerce.
G. - Gage des stocks
360 Les émoluments alloués aux greffiers sont égaux à ceux prévus pour des actes ou formalités analogues en cas de nantissement de fonds de commerce.
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NUMÉROS NATURE DES ACTES ÉMOLUMENTS(taux de base)
H. - Nantissement de l'outillage et du matériel
370 Les émoluments alloués aux greffiers sont égaux à ceux prévus pour des actes ou formalités analogues en cas de nantissement de fonds de commerce.
I. - Gage sur meubles corporels(article 2338 du code civil)
Inscription, y compris radiation totale d'une inscription (montant de la somme garantie)
380 Montant inférieur à 6 000 taux de base. 7
381 Montant supérieur ou égal à 6 000 taux de base et inférieur à 16 000 taux de base. 15
382 Montant supérieur ou égal à 16 000 taux de base. 45
Radiation partielle d'une inscription non périmée(montant de la somme garantie)
383 Montant inférieur à 6 000 taux de base. 4
384 Montant supérieur ou égal à 6 000 taux de base et inférieur à 16 000 taux de base. 8
385 Montant supérieur ou égal à 16 000 taux de base. 23
Mention d'antériorité ou de subrogation, renouvellement d'inscription (montant de la somme garantie)
386 Montant inférieur à 6 000 taux de base. 4
387 Montant supérieur ou égal à 6 000 taux de base et inférieur à 16 000 taux de base. 8
388 Montant supérieur ou égal à 16 000 taux de base. 23
389 Procès-verbal de dépôt, certificat de dépôt et certificat constatant une transcription, une cession d'antériorité ou de radiation. Pour l'ensemble de ces formalités.
1
390 Etat d'inscription positif ou négatif (quel que soit le nombre des inscriptions). 2
391 Délivrance des copies de bordereaux d'inscription et des actes sous seing privé déposés au greffe. 3
392 Copie certifiée conforme. 2
J. - Warrants (1) (2)
Etablissement du warrant, y compris radiation(ensemble le volant, la souche et la transcription du premier endossement)(montant de la somme prévue dans l'acte)
390 Montant inférieur à 16 000 taux de base. 14
391 Montant supérieur ou égal à 16 000 taux de base. 62
Radiation partielle
392 Montant inférieur à 16 000 taux de base. 14
393 Montant supérieur ou égal à 16 000 taux de base. 62
Renouvellement du warrant, inscription d'avis d'escompte
394 Montant inférieur à 16 000 taux de base. 7
395 Montant supérieur ou égal à 16 000 taux de base. 31
396 Délivrance d'un état de transcription, d'un état négatif. 2
397 Certificat de radiation. 1
398 Rédaction de lettre recommandée (en cas de formalité obligatoire). 0,25
K. - Nantissement de parts sociales ou de meubles incorporels
399 Les émoluments alloués aux greffiers sont égaux à ceux qui sont prévus pour des actes ou formalités analogues en cas de nantissement de fonds de commerce.
(1) A l'exclusion des warrants agricoles.
(2) Il n'est rien dû pour les mentions portées sur le registre des avis et oppositions.
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TABLEAU IV ANNEXÉ À L'ARTICLE R. 743-140
Publicités diverses NUMÉROS NATURE DES ACTES ÉMOLUMENTS (taux de base)
A. - Crédit-bail en matière mobilière
401 Inscription principale y compris radiation de cette inscription 14
402 Modification de cette inscription. 7
403 Report d'inscription (1) (par greffier). 3
404 Délivrance de tout état d'inscription (quel que soit le nombre d'inscriptions) positif ou négatif. 2
405 Certificat de radiation. 1
B. - Contrat de location
410 Inscription principale y compris radiation de cette inscription. 14
411 Modification de cette inscription. 7
412 Report d'inscription (1) (par greffier). 3
413 Délivrance de tout état d'inscription (quel que soit le nombre d'inscriptions) positif ou négatif. 2
414 Certificat de radiation. 1
C. - Inscription sur le registre spécial des prêts et délais
420 Inscription principale y compris radiation de cette inscription. 6
421 Modification de cette inscription. 3
422 Report d'inscription (1) (par greffier). 3
423 Délivrance de tout état d'inscription (quel que soit le nombre d'inscriptions) positif ou négatif. 2
424 Certificat de radiation. 1
D. - Clause de réserve de propriété
430 Inscription principale y compris radiation de cette inscription. 6
431 Modification de cette inscription. 3
432 Report d'inscription (1) (par greffier). 3
433 Délivrance de tout état d'inscription (quel que soit le nombre d'inscriptions) positif ou négatif. 2
434 Certificat de radiation. 1
E. - Clause d'inaliénabilité
440 Inscription principale y compris radiation de cette inscription. 15
441 Modification de cette inscription. 8
442 Report d'inscription (1) (par greffier). 3
443 Délivrance de tout état d'inscription (quel que soit le nombre d'inscriptions) positif ou négatif. 2
444 Certificat de radiation. 2
F. - Publicité des protêts et des certificats de non-paiement des chèques postaux
Inscription d'un protêt y compris radiation (2) (montant de la somme inscrit dans l'acte)
450 Montant inférieur à 16 000 taux de base. 7
451 Montant supérieur ou égal à 16 000 taux de base. 31
452 Délivrance d'un extrait de registre des protêts positif ou négatif. 2
G. - Immatriculation des bateaux de rivière
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NUMÉROS NATURE DES ACTES ÉMOLUMENTS (taux de base)
Inscription et radiation d'un acte ou jugement translatif, constitutif ou déclaratif de propriété ou de droit réel (3) (montant de la somme inscrit dans l'acte)
460 Montant inférieur à 16 000 taux de base. 7
461 Montant supérieur ou égal à 16 000 taux de base. 31
Mention de radiation totale ou partielle d'une inscription hypothécaire (montant de la somme inscrit dans l'acte)
462 Montant inférieur à 16 000 taux de base.
463 Montant supérieur ou égal à 16 000 taux de base. 31
Mention d'antériorité ou de subrogation, renouvellement d'inscription (sur la valeur de la plus faible inscription faisant l'objet de la subrogation ou du renouvellement) (montant de la somme inscrit dans l'acte)
465 Montant inférieur à 16 000 taux de base. 5
466 Montant supérieur ou égal à 16 000 taux de base. 16
467 Déclarations prévues au troisième alinéa de l'article 34 du décret du 3 avril 1919 modifié, mention des changements de domicile élu.
1
468 Acte de déclaration de propriété faite sous serment devant le tribunal de commerce (art. 101 du code du domaine public fluvial et de la navigation intérieure).
4
469 Dépôt de procès-verbal de saisie. 1
470 Délivrance de tout état d'inscription positif ou négatif (décret du 3 avril 1919). 2
471 Délivrance de tout certificat. 1
472 Délivrance des copies de tous actes déposés au greffe (code du domaine public fluvial et de la navigation intérieure).
2
473 Formalités consécutives au transfert d'immatriculation au greffier du lieu de l'inscription et au greffier de la nouvelle immatriculation.
1
(1) Il n'est rien perçu, en sus de l'émolument ainsi fixé, pour toute radiation consécutive à un report d'inscription.
(2) Pour l'ensemble des formalités (réception de la copie du protêt, délivrance d'un récépissé, inscription sur le registre et fichiers, etc.) ainsi que, en ce qui concerne les protêts de chèques, pour la réception et la transmission de la copie destinée au procureur de la République.
(3) Lorsque l'inscription est requise sur plusieurs bateaux et porte, pour chacun d'eux, sur la totalité de la créance, le droit proportionnel est réduit :- de moitié pour les deuxième, troisième, quatrième et cinquième bateaux ;- des deux tiers pour les sixième, septième, huitième, neuvième et dixième bateaux ;- des trois quarts au-delà du dixième bateau.
TABLEAU V ANNEXÉ À L'ARTICLE R. 743-140
Propriétés industrielles NUMÉROS NATURE DES ACTES ÉMOLUMENTS
501 Dépôt de dessins et modèles (1). 6
(1) Pour l'ensemble des formalités y compris le récépissé de dépôt.
TABLEAU VI ANNEXÉ À L'ARTICLE R. 743-140
Opérations diverses NUMÉROS NATURE DES ACTES ÉMOLUMENTS DACS
Séquestre judiciaire(montant de la somme inscrit dans l'acte)
601 Montant inférieur à 16 000 taux de base. 14
602 Montant supérieur ou égal à 16 000 taux de base. 62
603 Rapport de mer. 3
604 Avis concernant une déclaration afférente à la vente, à la cession, à l'apport en société, à l'attribution par partage ou par licitation d'un fonds de commerce prévus par l'article R. 123-211, y inclus la délivrance du certificat.
7
605 Rédaction des avis d'insertion au Bulletin officiel des annonces civiles et commerciales des certificats de dépôt au greffe de comptes annuels et rapport de l'exercice clos.
4
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TABLEAU VII ANNEXÉ À L'ARTICLE R. 743-140
Par exception au principe de la facturation des actes des procédures de sauvegarde et de redressement judiciaire, dont le tarif est fixé par le tableau I, les émoluments et les frais de transmission des procédures de liquidation judiciaire ouvertes hors du cours d'une procédure de sauvegarde ou de redressement judiciaire ou prononcées dans les deux mois de l'ouverture d'une procédure de redressement judiciaire font l'objet d'une tarification forfaitaire fixée dans ce tableau.
Cette tarification forfaitaire ne comprend pas les émoluments, les frais et les débours résultant des actions prévues au titre V du livre VI du code de commerce, dont le tarif est fixé par le tableau I, ainsi que les frais de copies d'actes ou de pièces délivrées aux parties.
Pour l'application des droits forfaitaires, le nombre de salariés et le chiffre d'affaires de l'entreprise concernée sont déterminés conformément aux dispositions de l'article R. 621-11 du code de commerce.
A défaut, ils sont déterminés au vu des données disponibles dans le dossier de la procédure.
Une somme fixée à 200 euros hors taxe à valoir sur les émoluments et frais de transmission est versée dès l'ouverture ou le prononcé des procédures de liquidation judiciaire ci-dessus mentionnées. Le solde est exigible à la date de leur clôture.
Tarification forfaitaire
Emoluments du greffe par débiteur et forfait de transmission
(hors frais d'huissiers, frais relatifs aux journaux d'annonces légales, BODACC)
(Exprimés en taux de base) NUMÉROS 701 702 703 704 705 706 707 708 709
Nombre de salariés... Aucun salarié
De 1 à 5 salariés
De 6 à 19 salariés De 20 à 150 salariés Plus de 150 salariés
Seuil de CA... CA inférieur à 750 k€
CA supérieur à 750 k€
CA inférieur à 3 000 k€
CA supérieur à 3 000 k€
CA inférieur à 20 000 k€
CA de 20 000 k€ à 50 000 k€
CA supérieur à 50 000 k€
Droit principal. - Nombre de taux de base...
480 525 1 100 1 240 2 090 2 580 5 294 7 468 12 520
Frais de transmission.- Nombre de taux de base...
60 65 120 230 300 380 596 682 760
Total... 702 € 767 € 1 586 € 1 911 € 3 107 € 3 848 € 7 657 € 10 595 € 17 264 €
719 : Droit accessoire par établissement secondaire (à charge pour le greffier de la procédure principale de reverser la moitié du droit au greffe de l'établissement secondaire)...
150 taux de base.
720 : Droit accessoire par créancier supplémentaire au-delà de 25 créanciers... 10 taux de base plafonné à 100 taux de base.
Article Annexe 8-1
CODE DE DÉONTOLOGIE DE LA PROFESSION DE COMMISSAIRE AUX COMPTES
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Article 1er
Le commissaire aux comptes exerce une mission d'intérêt général dans les conditions fixées par la loi.
Le présent code définit la déontologie à laquelle est soumis le commissaire aux comptes dans l'accomplissement de sa mission. Ses dispositions s'imposent à tout commissaire aux comptes, quel que soit son mode d'exercice.
Le respect des dispositions du présent code fait l'objet de vérifications lors des inspections et des contrôles auxquels sont soumis les commissaires aux comptes.
Article 2
Le commissaire aux comptes doit se conformer aux lois et règlements ainsi qu'aux dispositions du présent code.
TITRE Ier : PRINCIPES FONDAMENTAUX DE COMPORTEMENT
Article 3
Intégrité
Le commissaire aux comptes exerce sa profession avec honnêteté et droiture. Il s'abstient, en toutes circonstances, de tout agissement contraire à l'honneur et à la probité.
Article 4
Impartialité
Dans l'exercice de ses missions, le commissaire aux comptes conserve en toutes circonstances une attitude impartiale. Il fonde ses conclusions et ses jugements sur une analyse objective de l'ensemble des données dont il a connaissance, sans préjugé ni parti pris.
Il évite toute situation qui l'exposerait à des influences susceptibles de porter atteinte à son impartialité.
Article 5
Indépendance
Le commissaire aux comptes doit être indépendant de la personne ou de l'entité dont il est appelé à certifier les comptes.
L'indépendance du commissaire aux comptes se caractérise notamment par l'exercice en toute liberté, en réalité et en apparence, des pouvoirs et des compétences qui lui sont conférés par la loi.
Article 6
Conflit d'intérêts
Le commissaire aux comptes évite toute situation de conflit d'intérêts.
Tant à l'occasion qu'en dehors de l'exercice de sa mission, le commissaire aux comptes évite de se placer dans une situation qui compromettrait son indépendance à l'égard de la personne ou de
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l'entité dont il est appelé à certifier les comptes ou qui pourrait être perçue comme de nature à compromettre l'exercice impartial de cette mission.
Article 7
Compétence
Le commissaire aux comptes doit posséder les connaissances théoriques et pratiques nécessaires à l'exercice de ses missions. Il maintient un niveau élevé de compétence, notamment par la mise à jour régulière de ses connaissances et la participation à des actions de formation.
Le commissaire aux comptes veille à ce que ses collaborateurs disposent des compétences appropriées à la bonne exécution des tâches qu'il leur confie et à ce qu'ils reçoivent et maintiennent un niveau de formation approprié.
Lorsqu'il n'a pas les compétences requises pour réaliser lui-même certains contrôles indispensables à l'exercice de sa mission, le commissaire aux comptes fait appel à des experts indépendants de la personne ou de l'entité pour les comptes de laquelle leur concours est requis.
Article 8
Confraternité
Dans le respect des obligations de la mission de contrôle légal, les commissaires aux comptes entretiennent entre eux des rapports de confraternité. Ils se gardent de tout acte ou propos déloyal à l'égard d'un confrère ou susceptible de ternir l'image de la profession.
Ils s'efforcent de résoudre à l'amiable leurs différends professionnels. Si nécessaire, ils recourent à la conciliation du président de leur compagnie régionale ou, s'ils appartiennent à des compagnies régionales distinctes, des présidents de leur compagnie respective.
Article 9
Discrétion
Le commissaire aux comptes respecte le secret professionnel auquel la loi le soumet.
Il fait preuve de prudence et de discrétion dans l'utilisation des informations qui concernent des personnes ou entités à l'égard desquelles il n'a pas de mission légale.
Il ne communique les informations qu'il détient qu'aux personnes légalement qualifiées pour en connaître.
TITRE II : INTERDICTIONS, SITUATIONS À RISQUE ET MESURES DE SAUVEGARDE
Section 1 : Interdictions
Article 10
Situations interdites
Il est interdit au commissaire aux comptes de fournir à la personne ou à l'entité dont il certifie les comptes, ou aux personnes ou entités qui la contrôlent ou qui sont contrôlées par elle au sens des I et II de l'article L. 233-3, tout conseil ou toute prestation de services n'entrant pas dans les diligences directement liées à la mission de commissaire aux comptes, telles qu'elles sont définies par les normes d'exercice professionnel.
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A ce titre, il lui est interdit de procéder, au bénéfice, à l'intention ou à la demande de la personne ou de l'entité dont il certifie les comptes :
1° A toute prestation de nature à le mettre dans la position d'avoir à se prononcer dans sa mission de certification sur des documents, des évaluations ou des prises de position qu'il aurait contribué à élaborer ;
2° A la réalisation de tout acte de gestion ou d'administration, directement ou par substitution aux dirigeants ;
3° Au recrutement de personnel ;
4° A la rédaction des actes ou à la tenue du secrétariat juridique ;
5° Au maniement ou séquestre de fonds ;
6° A la tenue de la comptabilité, à la préparation et à l'établissement des comptes, à l'élaboration d'une information ou d'une communication financières ;
7° A une mission de commissariat aux apports et à la fusion ;
8° A la mise en place des mesures de contrôle interne ;
9° A des évaluations, actuarielles ou non, d'éléments destinés à faire partie des comptes ou de l'information financière, en dehors de sa mission légale ;
10° Comme participant, à toute prise de décision, dans le cadre de missions de conception ou de mise en place de systèmes d'information financière ;
11° A la fourniture de toute prestation de service, notamment de conseil en matière juridique, financière, fiscale ou relative aux modalités de financement ;
12° A la prise en charge, même partielle, d'une prestation d'externalisation ;
13° A la défense des intérêts des dirigeants ou à toute action pour leur compte dans le cadre de la négociation ou de la recherche de partenaires pour des opérations sur le capital ou de recherche de financement ;
14° A la représentation des personnes mentionnées à l'alinéa premier et de leurs dirigeants devant toute juridiction, ou à toute mission d'expertise dans un contentieux dans lequel ces personnes seraient impliquées.
Section 2 : Situations à risque et mesures de sauvegarde
Article 11
Approche par les risques
Le commissaire aux comptes identifie les situations et les risques de nature à affecter d'une quelconque façon la formation, l'expression de son opinion ou l'exercice de sa mission. Il tient compte, en particulier, des risques et contraintes qui résultent, le cas échéant, de son appartenance à un réseau ainsi que des situations d'autorévision le conduisant à se prononcer ou à porter une appréciation sur des éléments résultant de prestations fournies par lui-même, la société à laquelle il appartient ou un membre de son réseau.
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Article 12
Mesures de sauvegarde
Lorsqu'il se trouve exposé à des situations à risque, le commissaire aux comptes prend immédiatement les mesures de sauvegarde appropriées en vue, soit d'en éliminer la cause, soit d'en réduire les effets à un niveau qui permette la poursuite de la mission en conformité avec les exigences légales, réglementaires, et celles du présent code.
Le commissaire aux comptes doit pouvoir justifier qu'il a procédé à l'analyse de la situation et des risques et, le cas échéant, qu'il a pris les mesures appropriées.
Le commissaire aux comptes n'accepte pas la mission ou y met fin si celle-ci ne peut s'accomplir dans des conditions conformes aux exigences légales et réglementaires ainsi qu'à celles du présent code.
En cas de doute sérieux ou de difficulté d'interprétation, il saisit, pour avis, le Haut Conseil du commissariat aux comptes, après en avoir informé le président de la compagnie régionale des commissaires aux comptes.
Lorsqu'il est amené à démissionner et que la personne ou entité dont il certifie les comptes exerce une activité dans un secteur soumis à une réglementation particulière telle que celle applicable à l'admission aux négociations de titres financiers sur un marché réglementé, au secteur bancaire ou des assurances, il informe de sa démission les instances publiques compétentes pour cette activité. Ces dispositions s'appliquent également aux commissaires aux comptes de personnes ou d'entités dont les titres financiers sont offerts au public sur un système multilatéral de négociation qui se soumet aux dispositions législatives ou réglementaires visant à protéger les investisseurs contre les opérations d'initiés, les manipulations de cours ou la diffusion de fausses informations.
TITRE III : ACCEPTATION, CONDUITE ET MAINTIEN DE LA MISSION DU COMMISSAIRE AUX COMPTES
Article 13
Acceptation d'une mission
Avant d'accepter une mission de certification, le commissaire aux comptes vérifie que son accomplissement est compatible avec les exigences légales et réglementaires et celles du présent code.
A cet effet, il réunit les informations nécessaires :
a) Sur la structure de la personne ou entité dont les comptes seront certifiés, son actionnariat et son domaine d'activité ;
b) Sur son mode de direction et sur la politique de ses dirigeants en matière de contrôle interne en lien avec le processus de consolidation des comptes et d'information financière.
Article 14
Conduite de la mission
Le commissaire aux comptes accomplit sa mission en respectant les normes d'exercice professionnel homologuées par le garde des sceaux, ministre de la justice. Il prend en considération les bonnes pratiques professionnelles identifiées par le Haut Conseil du commissariat aux comptes
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et publiées.
En l'absence de norme d'exercice professionnel homologuée par le garde des sceaux, le projet de norme transmis par la Compagnie nationale des commissaires aux comptes au garde des sceaux en vue de l'examen de son homologation, après avis du Haut Conseil du commissariat aux comptes, peut être pris comme référence par les professionnels tant que le garde des sceaux ne s'est pas prononcé sur l'homologation.
Les normes du référentiel établi par la Compagnie nationale des commissaires aux comptes avant l'entrée en vigueur de la loi du 1er août 2003 de sécurité financière et non contraires aux lois et règlements ont une valeur d'usage, jusqu'à leur remplacement par des normes d'exercice professionnel mentionnées au premier alinéa et, au plus tard, jusqu'au 1 er mai 2007.
Article 15
Organisation interne de la structure d'exercice professionnel
Les modalités d'organisation et de fonctionnement des structures d'exercice du commissariat aux comptes, qu'elles soient en nom propre ou sous forme de société, doivent permettre au commissaire aux comptes d'être en conformité avec les exigences légales et réglementaires et celles du présent code, d'assurer au mieux la prévention des risques et la bonne exécution de sa mission.
En particulier, chaque structure doit satisfaire aux exigences suivantes :
a) Disposer des moyens permettant au commissaire aux comptes d'assumer ses responsabilités en matière :
-d'adéquation à l'ampleur de la mission à accomplir des ressources humaines et des techniques mises en oeuvre ;
-de contrôle du respect des règles applicables à la profession et d'appréciation régulière des risques ;
-d'évaluation périodique en son sein des connaissances et de formation continue.
b) Mettre en oeuvre des procédures :
-assurant une évaluation périodique des conditions d'exercice de chaque mission de contrôle, en vue de vérifier que celle-ci peut être poursuivie dans le respect des exigences déontologiques, notamment en matière d'indépendance vis-à-vis de la personne ou de l'entité contrôlée ;
-permettant de décider rapidement des mesures de sauvegarde si celles-ci s'avèrent nécessaires.
c) Le cas échéant, garantir :
-la rotation des signataires, lorsque la loi le prévoit ;
-la mise en place d'une revue indépendante des opinions émises ;
-le renforcement des moyens affectés au contrôle lorsque la difficulté technique de la mission ou les exigences déontologiques le commandent ;
-la mise en place d'un dispositif de contrôle de qualité interne.
d) Constituer une documentation appropriée sur la manière dont elle satisfait aux exigences ci-dessus.
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Article 16
Recours à des collaborateurs et experts
Le commissaire aux comptes peut se faire assister ou représenter par des collaborateurs ou des experts. Il ne peut leur déléguer ses pouvoirs. Il conserve toujours l'entière responsabilité de sa mission. Il s'assure que les collaborateurs ou experts auxquels il confie des travaux respectent les règles applicables à la profession et sont indépendants de la personne ou entité qui fait l'objet d'une certification des comptes à laquelle ils participent.
Article 17
Exercice de la mission par plusieurs commissaires aux comptes
Lorsque les comptes d'une personne ou d'une entité sont certifiés par plusieurs commissaires aux comptes, ceux-ci doivent appartenir à des structures d'exercice professionnel distinctes, c'est-à-dire qui n'ont pas de dirigeants communs, n'entretiennent pas entre elles de liens capitalistiques ou financiers et n'appartiennent pas à un même réseau.
Les commissaires aux comptes se communiquent réciproquement les propositions de fourniture de prestations entrant dans les diligences directement liées à la mission faites à la personne ou entité dont les comptes sont certifiés.
Lorsque les commissaires aux comptes, partageant une même mission, ne parviennent pas à s'entendre sur leurs contributions respectives, ils saisissent le président de leur compagnie régionale ou, s'ils appartiennent à des compagnies régionales distinctes, le président de leur compagnie respective.
Article 18
Poursuite et renouvellement du mandat
En cours de mandat, le commissaire aux comptes veille à ce que les exigences légales et réglementaires et celles du présent code, remplies lors de l'acceptation de la mission, soient toujours respectées ; en particulier, il procède à cette vérification avant d'accepter le renouvellement de son mandat.
Article 19
Démission
Le commissaire aux comptes exerce sa mission jusqu'à son terme. Il a cependant le droit de démissionner pour des motifs légitimes.
Constitue un motif légitime de démission :
a) La cessation définitive d'activité ;
b) Un motif personnel impérieux, notamment l'état de santé ;
c) Les difficultés rencontrées dans l'accomplissement de la mission, lorsqu'il n'est pas possible d'y remédier ;
d) La survenance d'un événement de nature à compromettre le respect des règles applicables à la profession, et notamment à porter atteinte à l'indépendance ou à l'objectivité du commissaire aux comptes.
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Le commissaire aux comptes ne peut démissionner pour se soustraire à ses obligations légales relatives notamment :
1° A la procédure d'alerte ;
2° A la révélation de faits délictueux au procureur de la République ;
3° A la déclaration de sommes ou d'opérations soupçonnées d'être d'origine illicite ;
4° A l'émission de son opinion sur les comptes.
Il ne peut non plus démissionner dans des conditions génératrices de préjudice pour la personne ou l'entité concernée. Il doit pouvoir justifier qu'il a procédé à l'analyse de la situation.
Article 20
Succession de missions
Avant d'accepter sa nomination et sous réserve des incompatibilités prévues à l'article 30, le commissaire aux comptes analyse la nature des missions que lui-même ou le cas échéant le réseau auquel il appartient auraient réalisées antérieurement pour la personne ou l'entité intéressée ou pour la personne qui la contrôle ou qui est contrôlée par elle, au sens des I et II de l'article L. 233-3, afin d'identifier, notamment, les risques d'autorévision qui pourraient résulter de la poursuite de leurs effets dans le temps. Il apprécie leur importance au regard des comptes et met en place les mesures de sauvegarde appropriées.
Dans un tel cas, il communique à la personne ou à l'entité dont il sera chargé de certifier les comptes, pour mise à disposition des actionnaires et associés, les renseignements concernant les prestations antérieures à sa nomination.
Article 21
Succession entre confrères
Le commissaire aux comptes appelé à succéder en tant que titulaire à un commissaire aux comptes dont le mandat venant à expiration ne sera pas renouvelé doit, avant d'accepter cette nomination, s'assurer auprès de ce confrère que le non-renouvellement de son mandat n'est pas motivé par une volonté de la personne ou de l'entité contrôlée de contourner les obligations légales.
La même obligation s'impose au commissaire aux comptes suppléant appelé à succéder de plein droit au commissaire aux comptes titulaire qui démissionne ou est empêché, avant la date normale d'expiration de son mandat.
TITRE IV : EXERCICE EN RÉSEAU
Article 22
Appartenance à un réseau
Préalablement à toute acceptation d'une mission de certification des comptes et au cours de son mandat, le commissaire aux comptes doit pouvoir justifier qu'il appartient ou non à un réseau pluridisciplinaire, national ou international, dont les membres ont un intérêt économique commun.
Le commissaire aux comptes doit pouvoir justifier qu'il a procédé à l'analyse de la situation.
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Constituent des indices de son appartenance à un tel réseau :
a) Une direction ou une coordination communes au niveau national ou international ;
b) Tout mécanisme conduisant à un partage des revenus ou des résultats ou à des transferts de rémunération ou de coûts en France ou à l'étranger ;
c) La possibilité de commissions versées en rétribution d'apports d'affaires ;
d) Une dénomination ou un signe distinctif communs ;
e) Une clientèle habituelle commune ;
f) L'édition ou l'usage de documents destinés au public présentant le réseau ou chacun de ses membres et faisant mention de compétences pluridisciplinaires ;
g) L'élaboration ou le développement d'outils techniques communs.
Toutefois, ne constituent pas de tels indices l'élaboration ou le développement d'outils techniques communs lorsqu'ils s'inscrivent dans le cadre d'une association technique ayant pour unique objet l'élaboration ou le développement de ces outils, le partage de connaissances ou l'échange d'expériences.
En cas de doute sur son appartenance à un réseau, le commissaire aux comptes saisit pour avis le Haut Conseil du commissariat aux comptes.
Article 23
Fourniture de prestations de services par un membre du réseau à la personne dont les comptes sont certifiés
En cas de fourniture de prestations de services par un membre du réseau à une personne ou entité dont les comptes sont certifiés par le commissaire aux comptes, ce dernier s'assure, à tout moment, que cette prestation est directement liée à la mission de commissaire aux comptes.
Le commissaire aux comptes doit pouvoir justifier qu'il a procédé à l'analyse de la situation.
En cas de doute, le commissaire aux comptes saisit, pour avis, le Haut Conseil du commissariat aux comptes.
Article 24
Fourniture de prestations de services par un membre du réseau à une personne contrôlée ou qui contrôle la personne dont les comptes sont certifiés.
I.-En cas de fourniture d'une prestation de services par un membre du réseau à une personne ou une entité contrôlée ou qui contrôle, au sens des I et II de l'article L. 233-3 du code de commerce, la personne dont les comptes sont certifiés par le commissaire aux comptes, ce dernier s'assure que son indépendance ne se trouve pas affectée par cette prestation de services.
II.-L'indépendance du commissaire aux comptes qui certifie les comptes est affectée par la fourniture par un membre de son réseau de l'une des prestations suivantes à la personne qui contrôle ou qui est contrôlée par la personne dont les comptes sont certifiés :
1° L'élaboration de toute information de nature comptable ou financière incluse dans les comptes consolidés, soumis à la certification du commissaire aux comptes ;
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2° La conception ou la mise en place de procédures de contrôle interne ou de gestion des risques relatives à l'élaboration ou au contrôle des informations comptables ou financières incluses dans les comptes consolidés, soumis à la certification du commissaire aux comptes ;
3° L'accomplissement d'actes de gestion ou d'administration, directement ou par substitution aux dirigeants de la personne ou de l'entité.
III.-Sans préjudice du II, est présumée affecter l'indépendance du commissaire aux comptes la fourniture par un membre de son réseau de l'une des prestations suivantes à la personne qui contrôle ou qui est contrôlée par la personne dont les comptes sont certifiés :
1° La tenue de la comptabilité, la préparation et l'établissement des comptes ou l'élaboration d'une information financière ou d'une communication financière ;
2° Le recrutement de personnel exerçant au sein de la personne ou de l'entité des fonctions dites sensibles au sens de l'article 26 ;
3° La participation à un processus de prise de décision dans le cadre de missions de conception ou de mise en place de systèmes d'informations financières ;
4° La fourniture de prestations de services ou de conseils en matière juridique au bénéfice des personnes exerçant des fonctions sensibles au sens de l'article 26 ;
5° La fourniture de prestations de services ou de conseils en matière de financements ou relatifs à l'information financière ;
6° La fourniture de prestations de services ou de conseils en matière fiscale de nature à avoir une incidence sur les résultats de la personne ou de l'entité dont les comptes sont certifiés ;
7° La fourniture de prestations de services ou de conseils en matière juridique de nature à avoir une influence sur la structure ou le fonctionnement de la personne ou de l'entité dont les comptes sont certifiés ;
8° La défense des intérêts des dirigeants ou l'intervention pour leur compte dans le cadre de la négociation ou de la recherche de partenaires pour des opérations sur le capital ou de recherche de financement ;
9° La représentation des personnes mentionnées à l'alinéa premier et de leurs dirigeants devant toute juridiction ou la participation, en tant qu'expert, à un contentieux dans lequel ces personnes ou entités seraient impliquées ;
10° La prise en charge totale ou partielle d'une prestation d'externalisation dans les cas mentionnés ci-dessus.
En cas de fourniture de l'une de ces prestations, le commissaire aux comptes procède à l'analyse de la situation et des risques qui y sont attachés et prend, le cas échéant, les mesures de sauvegarde appropriées. Il ne peut poursuivre sa mission que s'il est en mesure de justifier que la prestation n'affecte pas son jugement professionnel, l'expression de son opinion ou l'exercice de sa mission.
En cas de doute, le commissaire aux comptes ou la personne dont les comptes sont certifiés saisit pour avis le Haut Conseil du commissariat aux comptes.
Article 25
Organisation spécifique du commissaire aux comptes membre d'un réseau pluridisciplinaire
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Lorsqu'un commissaire aux comptes appartient à un réseau dont les membres assurent des missions autres que le commissariat aux comptes, il doit mettre en place une organisation lui permettant d'être informé de la nature et du prix des prestations fournies ou susceptibles d'être fournies par l'ensemble des membres du réseau à toute personne ou entité dont il certifie les comptes, ainsi qu'aux personnes ou entités qui la contrôlent ou qui sont contrôlées par elle, au sens des I et II de l'article L. 233-3.
Il doit pouvoir justifier qu'il a procédé à l'analyse de la situation et des risques qui lui sont attachés et qu'il a pris toutes mesures de sauvegarde appropriées conformément aux articles 11 et 12.
TITRE V : LIENS PERSONNELS, FINANCIERS ET PROFESSIONNELS
Article 26
Pour l'application du présent code, est considérée comme membre de la direction d'une société de commissaires aux comptes toute personne pouvant influer sur les opinions exprimées dans le cadre de la mission de contrôle légal ou qui dispose d'un pouvoir décisionnel en ce qui concerne la gestion, la rémunération, la promotion ou la supervision des membres de l'équipe chargée de cette mission.
Pour l'application de ces mêmes dispositions, est réputé exercer des fonctions dites " sensibles " au sein de la personne dont les comptes sont certifiés :
a) Toute personne ayant la qualité de mandataire social ;
b) Tout préposé de la personne ou entité chargé de tenir les comptes ou d'élaborer les états financiers et les documents de gestion ;
c) Tout cadre dirigeant pouvant exercer une influence sur l'établissement de ces états et documents.
Article 27
Liens personnels
I.-Liens familiaux :
Est incompatible avec l'exercice de la mission de commissaire aux comptes tout lien familial entre, d'une part, une personne occupant une fonction sensible au sein de la personne ou entité dont les comptes sont certifiés et, d'autre part :
a) Le commissaire aux comptes ;
b) L'un des membres de l'équipe de contrôle légal, y compris les personnes ayant un rôle de consultation ou d'expertise sur les travaux de contrôle légal ;
c) L'un des membres de la direction de la société de commissaires aux comptes ;
d) Les associés du bureau auquel appartient le signataire, le bureau s'entendant d'un sous-groupe distinct défini par une société de commissaires aux comptes sur la base de critères géographiques ou d'organisation.
Pour l'application des dispositions qui précèdent, il existe un lien familial entre deux personnes lorsque l'une est l'ascendant de l'autre, y compris par filiation adoptive, ou lorsque l'une et l'autre ont un ascendant commun au premier ou au deuxième degré, y compris par filiation adoptive. Il existe également un lien familial entre conjoints, entre personnes liées par un pacte civil de
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solidarité et entre concubins. Le lien familial est également constitué entre l'une de ces personnes et les ascendants ou descendants de son conjoint, de la personne avec laquelle elle est liée par un pacte civil de solidarité et de son concubin.
II.-Autres liens personnels :
Un commissaire aux comptes ne peut accepter ou conserver une mission de contrôle légal de la part de la personne ou de l'entité qui l'a désigné, dès lors que lui-même ou l'un des membres de la direction de la société de commissaires aux comptes entretient avec cette personne ou entité ou avec une personne occupant une fonction sensible au sein de celle-ci des liens personnels étroits affectant son indépendance.
Article 28
Liens financiers
I.-Constituent des liens financiers :
a) La détention, directe ou indirecte, d'actions ou de tous autres titres donnant ou pouvant donner accès, directement ou indirectement, au capital ou aux droits de vote de la personne ou de l'entité, sauf lorsqu'ils sont acquis par l'intermédiaire d'un organisme de placement collectif en valeurs mobilières, à moins qu'il ne s'agisse d'un organisme de placement collectif en valeurs mobilières contractuel ou d'un fonds commun de placement à risques contractuels ;
b) La détention, directe ou indirecte, de titres de créance ou de tous autres instruments financiers émis par la personne ou l'entité ;
c) Tout dépôt de fonds, sous quelque forme que ce soit, auprès de la personne ;
d) L'octroi ou le maintien après le début de la mission de tout prêt ou avance auprès de la personne ou de l'entité ;
e) La souscription d'un contrat d'assurance auprès de la personne.
Les liens mentionnés aux a, b, c, d et e sont incompatibles avec l'exercice de la mission lorsqu'ils sont établis entre, d'une part, la personne ou l'entité dont les comptes sont certifiés ou une personne ou entité qui la contrôle ou qui est contrôlée par elle au sens des I et II de l'article L. 233-3 du code de commerce et, d'autre part, le commissaire aux comptes, la société de commissaires aux comptes à laquelle appartient le commissaire aux comptes, la personne qui la contrôle ou qui est contrôlée par elle au sens des I et II de l'article L. 233-3 précité, les membres de la direction de ladite société.
En outre les liens mentionnées aux a et b sont incompatibles avec l'exercice de la mission lorsqu'ils sont établis entre, d'une part, la personne ou l'entité dont les comptes sont certifiés ou une personne ou entité qui la contrôle ou qui est contrôlée par elle au sens des I et II de l'article L. 233-3 et, d'autre part, tout associé de la société de commissaires aux comptes ayant une influence significative sur l'opinion émise par le commissaire aux comptes à l'égard de la personne ou entité dont les comptes sont certifiés, tout membre de l'équipe chargée de la mission de contrôle légal, tout collaborateur de la société de commissaires aux comptes amené à intervenir de manière significative auprès de la personne ou entité dont les comptes sont certifiés. Il en est de même pour les liens mentionnés aux c, d et e dès lors que les produits n'ont pas été commercialisés aux conditions habituelles du marché.
Dès qu'il a connaissance de la survenance d'événements extérieurs susceptibles de créer une situation d'incompatibilité mentionnée au présent article, le commissaire aux comptes saisit le Haut Conseil du commissariat aux comptes pour avis sur les mesures qu'il envisage de prendre pour
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éviter cette situation.
II.-Les incompatibilités énoncées au I s'appliquent au commissaire aux comptes lorsque son conjoint, la personne qui lui est liée par un pacte civil de solidarité, son concubin ou toute personne fiscalement à sa charge a des liens financiers avec la personne ou entité dont il certifie les comptes.
Article 29
Liens professionnels
I.-Révèle un lien professionnel toute situation qui établit entre le commissaire aux comptes et la personne ou entité dont il certifie les comptes un intérêt commercial ou financier commun en dehors des opérations courantes conclues aux conditions habituelles de marché.
II.-Liens professionnels concomitants :
Est incompatible avec l'exercice de la mission de commissaire aux comptes tout lien professionnel entre, d'une part, la personne ou entité dont les comptes sont certifiés ou ses dirigeants et, d'autre part :
a) Le commissaire aux comptes ;
b) Les membres de l'équipe chargés de la mission de contrôle légal ;
c) La société à laquelle appartient ce commissaire aux comptes ;
d) Les membres de la direction de cette société ;
e) Tout associé de cette société ayant une influence sur l'opinion émise par le commissaire aux comptes à l'égard de la personne ou entité dont les comptes sont certifiés.
III.-Liens professionnels antérieurs :
Avant l'acceptation de la mission le commissaire aux comptes doit procéder à l'analyse de la situation conformément aux articles 11 et 20.
Il ne peut accepter une mission légale dès lors que celle-ci le placerait dans une situation d'autorévision qui serait de nature à affecter son jugement professionnel, l'expression de son opinion ou l'exercice de sa mission.
S'il estime, face à une situation à risques résultant de prestations antérieures, que des mesures de sauvegarde sont suffisantes, il informe par écrit le Haut Conseil du commissariat aux comptes de la nature et de l'étendue de ces mesures.
Article 30
La survenance en cours de mission de l'une des situations mentionnées aux articles 23, 24, 27, 28 et 29 conduit le commissaire aux comptes à en tirer sans délai les conséquences.
TITRE VI : HONORAIRES
Article 31
Principe général
La rémunération du commissaire aux comptes est en rapport avec l'importance des diligences à
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mettre en oeuvre, compte tenu de la taille, de la nature et de la complexité des activités de la personne ou de l'entité dont les comptes sont certifiés.
Le commissaire aux comptes ne peut accepter un niveau d'honoraires qui risque de compromettre la qualité de ses travaux.
Une disproportion entre le montant des honoraires perçus et l'importance des diligences à accomplir affecte l'indépendance et l'objectivité du commissaire aux comptes. Celui-ci doit alors mettre en oeuvre les mesures de sauvegarde prévues à l'article 12.
Article 32
Honoraires de la mission
Un commissaire aux comptes, de même qu'un de ses associés, ne peut recevoir de la personne ou entité dont il est chargé de certifier les comptes, ou d'une personne ou entité qui la contrôle ou qui est contrôlée par elle, au sens des I et II de l'article L. 233-3, une rémunération pour des prestations autres que celles entrant dans les diligences directement liées à sa mission de commissaire aux comptes.
Lorsque le commissaire aux comptes qui appartient à un réseau a recours à des membres de ce réseau pour accomplir, au profit de la personne ou entité dont il certifie les comptes, des prestations entrant dans les diligences directement liées à la mission, il en effectue la facturation.
Article 33
Honoraires subordonnés
Un commissaire aux comptes ne peut accepter aucune forme de rémunération proportionnelle ou conditionnelle.
Le mode de calcul des honoraires relatifs à des travaux ou diligences non prévus lors de l'acceptation de la mission, mais qui apparaîtraient nécessaires à son exécution, doit être convenu lors de l'acceptation de la mission ou, à défaut, au moment où il apparaît que des travaux ou diligences complémentaires doivent être réalisés.
Article 34
Rapport entre le total des honoraires et le total des revenus.
Les honoraires facturés au titre d'une mission légale ne doivent pas créer de dépendance financière du commissaire aux comptes à l'égard de la personne ou de l'entité dont les comptes sont certifiés ou d'une personne qui la contrôle ou qui est contrôlée par elle.
La dépendance financière est présumée lorsque le total des honoraires perçus dans le cadre d'une mission légale représente une part significative du total des revenus professionnels du commissaire aux comptes lorsqu'il s'agit d'une personne physique ou du total du chiffre d'affaires lorsqu'il s'agit d'une personne morale.
Lorsque le commissariat aux comptes est exercé par un signataire et que les honoraires perçus au titre d'une mission légale représentent une part significative du chiffre d'affaires réalisé par ce signataire, la société de commissaires aux comptes à laquelle il appartient doit mettre en place des mesures de sauvegarde appropriées.
Lorsque le commissariat aux comptes est exercé par une personne physique et que les honoraires
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perçus dans le cadre de la mission représentent une part significative du total de ses revenus professionnels, il met en place des mesures de sauvegarde appropriées.
Au cours des trois premiers exercices d'activité, le caractère significatif de la part des revenus professionnels ou du chiffre d'affaires est apprécié sur l'ensemble de cette période.
En cas de difficulté sérieuse, le commissaire aux comptes saisit pour avis le haut conseil.
Article 35
Publicité des honoraires
I.-Le commissaire aux comptes informe la personne ou entité dont il est chargé de certifier les comptes du montant de l'ensemble des honoraires :
-qu'il a perçu au titre de sa mission de contrôle légal ;
-que le réseau, auquel il appartient, s'il n'a pas pour activité exclusive le contrôle légal des comptes, a reçu au titre des prestations qui ne sont pas directement liées à la mission du commissaire aux comptes, fournies à une personne contrôlée ou qui contrôle, au sens des I et II de l'article L. 233-3, la personne ou entité dont les comptes sont certifiés.
II.-Lorsque la mission du commissaire aux comptes porte sur le contrôle de comptes consolidés, les informations communiquées doivent porter sur les honoraires perçus par le réseau au titre des prestations qui ne sont pas directement liées à la mission de commissaire aux comptes et qui ont été fournies aux sociétés entrant dans le périmètre de consolidation de la personne ou entité dont les comptes sont certifiés ou, le cas échéant, à la personne ou entité qui la contrôle, au sens des I et II de l'article L. 233-3.
Il appartient également au commissaire aux comptes de prendre toutes les mesures requises pour satisfaire aux obligations de déclaration d'honoraires, pour les prestations fournies tant par lui-même que par le réseau auquel il appartient, à une personne ou entité contrôlée ou qui contrôle, au sens des I et II de l'article L. 233-3, la personne ou entité dont les comptes sont certifiés.
TITRE VII : PUBLICITÉ
Article 36
Il est interdit aux commissaires aux comptes d'effectuer toute démarche non sollicitée en vue de proposer leurs services à des tiers.
La participation des commissaires aux comptes à des colloques, séminaires ou autres manifestations universitaires ou scientifiques est autorisée dans la mesure où ils ne se livrent pas, à cette occasion, à des actes assimilables à du démarchage.
Article 37
La publicité est permise au commissaire aux comptes dans la mesure où elle procure au public une nécessaire information. Les moyens auxquels il est recouru à cet effet sont mis en oeuvre avec discrétion, de façon à ne pas porter atteinte à l'indépendance, à la dignité et à l'honneur de la profession, pas plus qu'aux règles du secret professionnel, à la loyauté envers les clients et les autres membres de la profession.
Les commissaires aux comptes peuvent utiliser le titre de commissaire aux comptes et le faire suivre de l'indication de la compagnie régionale dont ils sont membres.
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Lorsqu'il présente son activité professionnelle à des tiers, par quelque moyen que ce soit, le commissaire aux comptes ne doit adopter aucune forme d'expression qui soit de nature à compromettre la dignité de sa fonction ou l'image de la profession.
Les autres formes de communication sont autorisées sous réserve :
-que l'expression en soit décente et empreinte de retenue ;
-que leur contenu ne comporte aucune inexactitude ni ne soit susceptible d'induire le public en erreur ;
-qu'elles soient exemptes de tout élément comparatif.
Article Annexe 9-1
SIÈGE ET RESSORT DES TRIBUNAUX MIXTES DE COMMERCE DANS LES COLLECTIVITÉS D'OUTRE-MER ET EN NOUVELLE-CALÉDONIE. COLLECTIVITÉ TRIBUNAL de première instance SIÈGE ET RESSORT DES TRIBUNAUX MIXTES DE COMMERCE
Siège Ressort
Cour d'appel de Nouméa
Nouvelle-Calédonie. Nouméa. Nouméa. Ressort du tribunal de première instance de Nouméa.
Wallis et Futuna. Mata-Utu. Le tribunal de première instance est compétent en matière commerciale.
Cour d'appel de Papeete
Polynésie française. Papeete. Papeete. Ressort du tribunal de première instance de Papeete.
NOMBRE DE JUGES ÉLUS DES TRIBUNAUX MIXTES DE COMMERCE DE NOUMÉA ET DE PAPEETE
COLLECTIVITÉ TRIBUNAL mixte de commerce NOMBRE de juges élus
Cour d'appel de Nouméa. Nouméa. 10
Cour d'appel de Papeete. Papeete. 6
Article Annexe 9-2
JURIDICTIONS COMPÉTENTES DANS LES COLLECTIVITÉS D'OUTRE-MER ET EN NOUVELLE-CALÉDONIE POUR CONNAÎTRE, EN APPLICATION DE L'ARTICLE L. 610-1, DES PROCÉDURES APPLICABLES AUX COMMERCANTS ET ARTISANS.
COLLECTIVITÉ JURIDICTION RESSORT
Mayotte. Tribunal de première instance de Mamoudzou. La collectivité territoriale.
Saint-Pierre-et-Miquelon. Tribunal de première instance de Saint-Pierre. La collectivité territoriale.
Nouvelle-Calédonie. Tribunal mixte de commerce de Nouméa. La collectivité territoriale.
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COLLECTIVITÉ JURIDICTION RESSORT
Polynésie française. Tribunal mixte de commerce de Papeete. La collectivité territoriale.
Wallis et Futuna. Tribunal de première instance de Mata-Utu. La collectivité territoriale.
Article Annexe 9-3
JURIDICTIONS COMPÉTENTES DANS LES COLLECTIVITÉS D'OUTRE-MER ET EN NOUVELLE-CALÉDONIE POUR CONNAÎTRE, EN APPLICATION DE L'ARTICLE L. 610-1, DES PROCÉDURES APPLICABLES AUX PERSONNES QUI NE SONT NI COMMERCANTS NI ARTISANS.
COLLECTIVITÉ JURIDICTION RESSORT
Mayotte. Tribunal de première instance de Mamoudzou. La collectivité territoriale.
Saint-Pierre-et-Miquelon. Tribunal de première instance de Saint-Pierre. La collectivité territoriale.
Nouvelle-Calédonie. Tribunal de première instance de Nouméa. La collectivité territoriale
Polynésie française. Tribunal de première instance de Papeete. La collectivité territoriale
Wallis et Futuna. Tribunal de première instance de Mata-Utu. La collectivité territoriale
Article Annexe 9-4
JURIDICTION COMPÉTENTE POUR CONNAÎTRE, EN APPLICATION DE L'ARTICLE L. 420-7, DES PROCÉDURES APPLICABLES AUX PERSONNES QUI NE SONT NI COMMERCANTS NI ARTISANS. SIÈGE DES TRIBUNAUX de grande instance RESSORT
Paris. Le ressort des tribunaux supérieurs d'appel de Mamoudzou et Saint-Pierre.
Article Annexe 9-5
JURIDICTION COMPÉTENTE POUR CONNAÎTRE, EN APPLICATION DE L'ARTICLE L. 420-7, DES PROCÉDURES APPLICABLES AUX PERSONNES QUI SONT COMMERCANTS OU ARTISANS. SIÈGE DES TRIBUNAUX de commerce RESSORT
Paris. Le ressort des tribunaux supérieurs d'appel de Mamoudzou et Saint-Pierre.
Article Annexe 9-6
JURIDICTIONS COMPÉTENTES POUR CONNAÎTRE, EN APPLICATION DE L'ARTICLE L. 442-6, DES PROCÉDURES APPLICABLES AUX PERSONNES QUI SONT COMMERÇANTS OU ARTISANS
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Article Annexe 9-7
JURIDICTIONS COMPÉTENTES POUR CONNAÎTRE, EN APPLICATION DE L'ARTICLE L. 442-6, DES PROCÉDURES APPLICABLES AUX PERSONNES QUI NE SONT NI COMMERÇANTS NI ARTISANS
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Code de commerce
Partie Arrêtés
LIVRE Ier : Du commerce en général
TITRE Ier : De l'acte de commerce
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Partie Arrêtés
LIVRE Ier : Du commerce en général
TITRE II : Des commerçants
Chapitre Ier : De la définition et du statut
Chapitre II : Des commerçants étrangers
Chapitre III : Des obligations générales des commerçants
Section préliminaire : Des centres de formalités des entreprises
Article A123-1
Les formulaires liés aux déclarations de création ou de modification de situation ou à la cessation d'activité de l'entreprise et la liste des pièces justificatives homologués par la direction chargée de la réforme de l'Etat en application du dernier alinéa de l'article R. 123-7 sont accessibles gratuitement à partir du portail de l'administration française service-public. fr .
Article A123-2
Il ne peut être demandé au déclarant une information ou une pièce qui n'ait pas été prescrite par les dispositions législatives et réglementaires.
Article A123-3
I. # Les documents mentionnés à l'article R. 123-23 sont conformes aux caractéristiques techniques suivantes : 1° Formulaire électronique contenant l'ensemble des données nécessaires à la formalité : Le formulaire de déclaration électronique est établi en message formé écrit en langage XML (extensible markup language) dont les spécifications sont consultables sur internet sur le site public http://www.pme.gouv.fr ; 2° Les pièces numérisées exigibles : Ces pièces sont numérisées dans les formats de fichiers électroniques images suivants : JPEG (joint photography expert group ISO 10918) ; PDF / A (portable document format ISO 19005-1) ; PDF (portable document format,
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version propriétaire Adobe). La compression et la résolution graphique des images permettent une qualité de restitution des caractères garantissant la lisibilité des pièces numérisées ; 3° Les pièces numériques exigibles : Les documents numériques sont établis dans les formats suivants : Open document format (bureautique, format ouvert ISO 26300) ; Rich text format (texte enrichi, format propriétaire Microsoft dans leur version 97 / 2000 / XP) ; TXT (texte unicode) ; DOC et XLS (bureautique, formats propriétaires Microsoft dans leur version 97 / 2000 / XP) ; PDF / A (portable document format ISO 19005-1) ; PDF (portable document format, version propriétaire Adobe). II. # Les fichiers des documents électroniques mentionnés au I du présent article peuvent être rassemblés et compressés dans une archive au format ZIP conformément aux spécifications courantes au 1er avril 2007.
Article A123-4
Une déclaration électronique effectuée par une entreprise est acceptée par les organismes mentionnés à l'article R. 123-21 lorsque les conditions suivantes sont remplies : I. # En ce qui concerne la création : 1° Les fichiers qui la composent sont conformes aux prescriptions de l'article A. 123-3 ; 2° Les documents qui la composent ont fait l'objet d'une numérisation. La copie du justificatif d'identité est numérisée après avoir été préalablement revêtue d'une mention manuscrite d'attestation sur l'honneur de conformité à l'original, d'une date et de la signature manuscrite de la personne qui effectue la déclaration ; 3° En cochant la case informatique prévue à cet effet, le déclarant déclare sur l'honneur l'exactitude des éléments déclarés conformément à la formule suivante : "Je déclare sur l'honneur l'exactitude des informations de la formalité et signe la présente déclaration n°..., faite à..., le....". II. # En ce qui concerne les autres formalités : La liste des certificats et procédés de signature électronique qui peuvent alors être utilisés pour la signature électronique des documents à l'occasion d'une modification de situation, de la cessation de l'activité ou de la radiation d'une entreprise est consultable à l'adresse suivante : http://www.telecom.gouv.fr/rubriques-menu/entreprises-economie-numerique/certificats-references-pris-v1/categories-familles-certificats-references-pris-v-1-506.html. III. # Lorsque la déclaration comporte une demande d'inscription au registre du commerce et des sociétés ou au répertoire des métiers, l'acquittement des frais d'inscription correspondants est effectué au moyen d'une carte bancaire dont la personne qui effectue la déclaration est titulaire.
Article A123-5
Chaque centre de formalités des entreprises indique les coordonnées électroniques auxquelles l'ensemble des fichiers constituant le dossier de déclaration est transmis lorsque le déclarant fait usage d'une transmission par voie d'échange de données informatiques. La transmission est effectuée au centre compétent par l'intermédiaire soit d'une messagerie électronique Atlas 400, soit par une messagerie électronique utilisant le réseau internet à condition que le dossier unique de déclaration soit compressé et signé dans les conditions fixées à l'article A. 123-4.
Article A123-6
L'accusé de réception prévu à l'article R. 123-25, délivré par les centres de formalités des entreprises, leurs services communs ou les greffiers dans les conditions prévues à l'article R. 123-22, comporte les mentions suivantes : 1° Le nom, l'adresse postale et électronique ainsi que le numéro de téléphone du centre de formalités destinataire ; 2° Les formules suivantes : « Le dossier de déclaration d'entreprise que vous avez adressé au centre de formalités des entreprises / au greffe de... a été reçu le... à.... » ; « Le présent accusé de réception vous est adressé automatiquement. Si
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votre dossier est complet, vous recevrez prochainement un récépissé de dépôt de dossier de création d'entreprise par voie postale ou électronique. Si votre dossier est incomplet, il vous sera demandé de le compléter dans un délai qui vous sera alors précisé. »
Article A123-7
La commission prévue à l'article R. 123-28 comprend un représentant de chacun des ministres assurant la tutelle des organismes gestionnaires de centres de formalité des entreprises et des organismes destinataires, en qualité de membre de droit : 1° Le directeur des affaires civiles et du sceau ; 2° Le directeur général des finances publiques ; 3° Le directeur de la sécurité sociale ; 4° Le directeur général de la compétitivité, de l'industrie et des services ; 5° Le directeur général des infrastructures, des transports et de la mer ; 6° Le directeur général des politiques agricole, agroalimentaire et des territoires ; 7° Le directeur général de l'Institut national de la statistique et des études économiques. Le président du comité de coordination du registre du commerce et des sociétés mentionné à l'article R. 123-81 ou son représentant participe aux réunions de la commission, sans voix délibérative. Les membres de droit de la commission peuvent se faire représenter par une ou plusieurs personnes désignées au sein de leur administration. La commission désigne en son sein un président et un vice-président. Leur mandat est d'un an renouvelable. Le secrétariat de la commission est assuré par la direction générale de la compétitivité, de l'industrie et des services. La commission fixe son règlement intérieur.
Article A123-8
La commission se réunit, au moins une fois par an, sur décision de son président. Le cas échéant, il peut être fait appel sur une question particulière à toute personnalité qualifiée, qui siège alors avec voix consultative. La commission procède à l'examen des questions inscrites à l'ordre du jour et dont elle est saisie conformément à l'article A. 123-10. Elle peut, en outre, à la demande de l'un de ses membres, délibérer sur toute autre question relative au fonctionnement des centres de formalités des entreprises et à l'application des dispositions législatives et réglementaires ayant des incidences sur ce fonctionnement. Elle examine les projets de formulaires permettant aux entreprises de déclarer leur création ou la modification de leur situation et propose ces formulaires à l'homologation.
Article A123-9
Lorsque la commission estime qu'une question relative aux centres de formalités des entreprises doit faire l'objet d'une étude particulière, elle peut constituer un groupe de travail. Ce groupe est présidé par un des membres de la commission. Les groupes ainsi constitués sont ouverts à des représentants des centres de formalités des entreprises et de leurs réseaux, aux organismes destinataires des déclarations d'entreprise et à toute personne susceptible d'apporter une contribution à leurs travaux.
Article A123-10
La commission est saisie par les organismes gestionnaires des centres de formalités des entreprises, par les organismes destinataires des formalités, ainsi que par ses membres de droit. Le président peut également décider de l'inscription d'un point à l'ordre du jour. Les lettres de saisine sont
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adressées au secrétariat de la commission qui les communique au président en vue de la désignation d'un rapporteur et de la fixation d'une date de réunion. Lorsque la commission de coordination est saisie d'une question qui relève de la compétence du comité de coordination du registre du commerce et des sociétés, le secrétariat de la commission la transfère au président du comité.
Article A123-11
Les avis rendus par la commission sont communiqués au demandeur. Ils sont transmis au comité de coordination du registre du commerce et des sociétés. La commission décide, le cas échéant, leur publication. Cette publication se fait en ligne, sur le site internet du ministère chargé du commerce et de l'artisanat. La commission établit un rapport annuel destiné aux ministres mentionnés à l'article A. 123-7. Elle peut formuler toute proposition, y compris de disposition législative ou réglementaire, de nature à remédier aux difficultés ou anomalies dont elle a eu à connaître.
Section 1 : Du registre du commerce et des sociétés
Sous-section 1 : Des personnes tenues à l'immatriculation
Paragraphe 1 : De l'obligation d'immatriculation
Paragraphe 2 : Des déclarations incombant aux personnes tenues à l'immatriculation
Sous-paragraphe 1 : Des déclarations incombant aux personnes physiques
Sous-paragraphe 2 : Des déclarations incombant aux personnes morales
Sous-sous-paragraphe 1 : Des déclarations aux fins d'immatriculation
Article A123-12
Dans sa demande d'immatriculation, la caisse d'épargne et de prévoyance déclare, en application de l'article R. 123-62, en ce qui concerne la personne morale : 1° Sa dénomination suivie, le cas échéant, de son sigle ; 2° Le montant de sa dotation statutaire ; 3° L'adresse de son siège social ; 4° La date de clôture de l'exercice social ; 5° La date du dépôt au greffe des statuts ; 6° La liste des
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établissements secondaires.
Article A123-13
La caisse d'épargne et de prévoyance déclare, en outre, les nom, nom d'usage, pseudonyme, prénoms, domicile personnel, date et lieu de naissance et renseignements relatifs à la nationalité prévus à l'article R. 123-37 des : 1° Personnes ayant le pouvoir général d'engager la caisse d'épargne et de prévoyance vis-à-vis des tiers ; 2° Membres du conseil d'orientation et de surveillance et commissaire aux comptes.
Article A123-14
Sont, en outre, déclarés dans la demande d'immatriculation pour les caisses d'épargne et de prévoyance résultant d'une fusion ou d'une scission les dénominations, forme juridique ou siège social de toutes les caisses d'épargne y ayant participé.
Article A123-15
Sont déclarés dans la demande d'immatriculation d'une caisse d'épargne et de prévoyance, en ce qui concerne son établissement, les renseignements prévus à l'article R. 123-38, exception faite de ceux prévus aux 6°, 7° et 8°.
Article A123-16
Dans leur demande d'immatriculation, les associations mentionnées à l'article L. 213-8 du code monétaire et financier déclarent, en application de l'article R. 123-62 : 1° Le titre de l'association, suivi, le cas échéant, du sigle ; 2° L'adresse de son siège ; 3° Son objet, indiqué sommairement ; 4° La date de clôture de l'exercice ; 5° La date de la déclaration préalable à la préfecture ou à la sous-préfecture ou de l'inscription au registre du tribunal d'instance pour les associations d'Alsace-Moselle, la date du Journal officiel où a eu lieu l'insertion qui a rendu publique l'association ; 6° La date du dépôt au greffe des statuts ; 7° La date de la décision de l'assemblée générale d'émettre des obligations.
Article A123-17
Les associations mentionnées à l'article A. 123-16 déclarent, en outre, dans leur demande d'immatriculation les nom, nom d'usage, pseudonyme, prénoms, domicile personnel, date et lieu de naissance et renseignements concernant la nationalité prévus à l'article R. 123-37 pour les personnes chargées de la direction, de l'administration et du contrôle et les commissaires aux comptes.
Article A123-18
Dans sa demande d'immatriculation, le groupement européen d'intérêt économique déclare, en application de l'article R. 123-62 : 1° En ce qui concerne le groupement : a) Sa dénomination, son
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nom commercial, s'il en est utilisé un ; b) L'adresse du siège ; c) Son objet ; d) Sa durée, lorsqu'elle n'est pas indéterminée ; e) Le montant de la participation dans le groupement de chacun de ses membres ; f) Pour chaque personne physique membre du groupement, les renseignements prévus aux 1°, 2° et 3° de l'article R. 123-37 ainsi que, s'il y a lieu, les numéros d'identification de ces personnes avec l'indication du nom du greffe ou de la chambre de métiers et de l'artisanat où elles sont immatriculées ou du registre de l'Etat où elles sont établies ; le cas échéant, l'indication des personnes exonérées des dettes nées antérieurement à leur entrée dans le groupement ; g) Pour chaque personne morale membre du groupement, les renseignements prévus aux 1°, 2° et 4° de l'article R. 123-53 et, le cas échéant, les numéros d'identification de ces personnes avec l'indication du nom du greffe ou de la chambre de métiers et de l'artisanat où elles sont immatriculées, ou du registre de l'Etat où elles ont leur siège ; s'il y a lieu, l'indication des personnes exonérées des dettes nées antérieurement à leur entrée dans le groupement ; h) Pour les gérants et les personnes chargées du contrôle de la gestion et du contrôle des comptes, leurs nom, nom d'usage, pseudonyme, prénoms, date et lieu de naissance, domicile personnel et renseignements relatifs à la nationalité prévus à l'article R. 123-37 ; 2° En ce qui concerne son établissement, les renseignements prévus à l'article R. 123-38, exception faite de ceux prévus aux 6°, 7° et 8° s'il s'agit d'un groupement à objet non commercial.
Article A123-19
L'ouverture en France d'un établissement par un groupement européen d'intérêt économique ayant son siège hors de France donne lieu, par application de l'article 10 du règlement CEE n° 2137-85 du Conseil des Communautés européennes du 25 juillet 1985 relatif à l'institution d'un groupement européen d'intérêt économique, aux formalités prévues aux articles A. 123-18, A. 123-58 et A. 123-75. Sont déposés au plus tard en même temps que la demande d'immatriculation, outre les documents prévus à l'article A. 123-58, les documents dont le dépôt au registre de l'Etat membre du siège est obligatoire. Ces documents sont déposés conformément aux prescriptions de l'article R. 123-120-1.
Sous-sous-paragraphe 2 Des déclarations aux fins d'immatriculation secondaire hors du ressort de l'établissement principal
Sous-sous-paragraphe 2 : Des déclarations aux fins d'immatriculation secondaire hors du ressort de l'établissement principal
Article A123-20
En vertu de la dérogation prévue au deuxième alinéa de l'article R. 123-63, les caisses d'épargne et de prévoyance ne sont pas tenues de demander une immatriculation secondaire au registre du commerce et des sociétés quand elles ouvrent un établissement secondaire.
Article A123-21
En vertu de la dérogation prévue au deuxième alinéa de l'article R. 123-63, les associations mentionnées à l'article L. 213-8 du code monétaire et financier et qui sont immatriculées au registre du commerce et des sociétés sont dispensées de demander leur immatriculation secondaire.
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Sous-sous-paragraphe 3 Des déclarations aux fins d'inscriptions modificatives et complémentaires
Sous-sous-paragraphe 3 : Des déclarations aux fins d'inscriptions modificatives et complémentaires
Article A123-22
En vertu de la dérogation prévue au deuxième alinéa de l'article R. 123-67, les caisses d'épargne et de prévoyance ne sont pas tenues de demander une inscription complémentaire au registre du commerce et des sociétés quand elles ouvrent un établissement secondaire.
Article A123-23
En vertu de la dérogation prévue au deuxième alinéa de l'article R. 123-67, les associations mentionnées à l'article L. 213-8 du code monétaire et financier et qui sont immatriculées au registre du commerce et des sociétés sont dispensées de demander leur inscription complémentaire.
Article A123-24
En cas de modification intervenue entre la date d'immatriculation et celle du remboursement de toutes les obligations, dans les statuts, l'administration ou la direction des associations mentionnées à l'article A. 123-23, cette modification est mentionnée au registre du commerce et des sociétés sur justification de l'accomplissement des formalités de déclaration à la préfecture ou la sous-préfecture ou d'inscription au tribunal d'instance pour les associations d'Alsace-Moselle.
Article A123-25
La cession par un membre d'un groupement européen d'intérêt économique de sa participation dans celui-ci, ou d'une fraction de celle-ci, donne lieu à l'inscription modificative prévue à l'article R. 123-66.
Article A123-26
La nomination du ou des liquidateurs d'un groupement européen d'intérêt économique donne lieu à l'inscription modificative prévue à l'article R. 123-66.
Sous-sous-paragraphe 4 Des déclarations aux fins de radiation
Le présent sous-sous-paragraphe ne comprend pas de dispositions pour les arrêtés.
Sous-sous-paragraphe 5 De la langue des déclarations
Le présent sous-sous-paragraphe ne comprend pas de dispositions pour les arrêtés.
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Sous-sous-paragraphe 4 : Des déclarations aux fins de radiation
Sous-sous-paragraphe 5 : De la langue des déclarations
Sous-paragraphe 3 : Des déclarations incombant aux représentations ou agences commerciales des Etats, collectivités ou établissements publics étrangers
Sous-paragraphe 4 : Dispositions communes
Article A123-27
Lors de la première immatriculation, en application des articles R. 123-77 et R. 123-103, il ne peut être suppléé au dépôt des statuts originaux établis par actes sous seing privé sur support papier que par la transmission électronique d'une copie de ces statuts.
Sous-section 2 : De la tenue du registre et des effets attachés à l'immatriculation
Paragraphe 1 : Dispositions générales
Article A123-28
Le registre national du commerce et des sociétés comprend un second original du registre tenu dans chaque greffe, à l'exclusion des pièces justificatives. Ces dossiers sont conservés et mis à jour dans les mêmes conditions que ceux tenus par les greffiers.
Article A123-29
Le greffier appose sur chaque dossier d'immatriculation et pour la seule gestion de ces dossiers un numéro de gestion composé des chiffres de l'année en cours, suivi de la lettre A s'il s'agit d'une personne physique, de la lettre B s'il s'agit d'une société commerciale, de la lettre C s'il s'agit d'un groupement d'intérêt économique et d'un groupement européen d'intérêt économique, de la lettre D s'il s'agit d'une société civile, de la lettre E s'il s'agit d'une société européenne, de la lettre F s'il s'agit d'une société d'exercice libéral, de la lettre G s'il s'agit d'un EPIC, de la lettre H s'il s'agit d'une autre personne morale ; et d'un numéro d'ordre chronologique annuel. Le numéro de gestion est porté sur
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les formulaires d'inscription modificative ou de radiation constituant le dossier, sur les actes des personnes physiques et des personnes morales classés en annexe ainsi que sur le fichier du registre du commerce et des sociétés. Ce numéro est utilisé dans les rapports entre les greffes et l'Institut national de la propriété industrielle.
Article A123-30
Le greffier mentionne sur l'exemplaire de la déclaration d'immatriculation des personnes morales destiné à l'Institut national de la propriété industrielle la date de dépôt des statuts et des actes.
Article A123-31
Le greffier transmet un exemplaire complet et lisible de chaque demande et de chaque dépôt, visé par ses soins, à l'Institut national de la propriété industrielle, dans un délai maximum de quinze jours à compter de l'inscription. Il envoie dans le même délai à l'Institut national de la propriété industrielle les redevances perçues à ce titre, pour le compte de cet établissement.
Article A123-32
Le greffier transmet au registre national un exemplaire de chaque acte ou document comptable déposés dans les quinze jours de leur dépôt, accompagnés d'un bordereau qui mentionne : 1° Le greffe du lieu du dépôt ; 2° La date et le numéro du dépôt, le numéro de dépôt des documents comptables faisant l'objet d'une série distincte de celle des autres actes (A, les actes des sociétés, B les documents comptables, R les ordonnances rendues en matière de société, P les actes des personnes physiques) ; 3° Les mentions prévues aux 1° et 2° de l'article R. 123-237, sauf pour les actes se rapportant à des sociétés non immatriculées. Le greffier envoie dans le même délai à l'Institut national de la propriété industrielle les redevances perçues à ce titre pour le compte de cet établissement.
Article A123-33
Les mentions et radiations faites d'office ainsi que les inscriptions rapportées par le greffier font l'objet d'une transmission spéciale à l'Institut national de la propriété industrielle sur les documents prévus à cet effet et conformes aux modèles homologués.
Article A123-34
Le président du comité de coordination prévu à l'article R. 123-81 ainsi que les deux personnes chargées de la tenue du registre proposés par le président du Conseil national des greffiers des tribunaux de commerce sont nommés par le garde des sceaux, ministre de la justice, pour une période de cinq ans renouvelable. Des suppléants peuvent leur être désignés. Le directeur des affaires civiles et du sceau, le directeur général de l'Institut national de la propriété industrielle peuvent se faire représenter par une ou plusieurs personnes. Le comité se réunit sur décision de son président, en présence de l'ensemble de ses membres ou de leurs suppléants. Le président a la faculté de désigner un secrétaire général choisi parmi des personnes qualifiées pour leur expérience au sein du comité. La direction des affaires civiles et du sceau en assure le secrétariat dont elle peut
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toutefois confier la charge à l'un de ses membres.
Article A123-35
Les greffiers, les centres de formalités des entreprises, les professionnels mandatés, les administrations ou organismes destinataires des formalités peuvent saisir le comité. Le comité ne peut être valablement saisi que par une demande écrite adressée au secrétariat. Chaque demande est instruite par un rapporteur désigné à cet effet. Le projet de rapport est présenté en réunion plénière du comité.
Article A123-36
Le comité rend des avis qui sont communiqués au demandeur et décide s'ils sont publiés. Les avis sont publiés sur le site internet du ministère de la justice. Le comité peut, en outre, établir un rapport au ministre compétent, suggérant des solutions pour remédier aux difficultés ou anomalies dont il a eu à connaître ou des propositions de modification des dispositions législatives ou réglementaires applicables.
Article A123-37
La tenue du registre par le greffier comprend la conservation et la mise à jour : 1° Du fichier alphabétique des personnes physiques et morales immatriculées dans le ressort du tribunal ; 2° De la collection des dossiers individuels ; 3° De la collection des dossiers annexes. Le fichier alphabétique est tenu selon un procédé informatique.
Article A123-38
Le fichier alphabétique indique : 1° Pour les personnes physiques, leurs nom de naissance, nom d'usage, prénoms, date et lieu de naissance, l'activité exercée et l'adresse de l'établissement ou, à défaut, du local d'habitation. Le cas échéant, la commune de rattachement administratif pour les personnes sans domicile ni résidence fixe sur le territoire français, le marché principal pour les personnes ressortissantes de l'Union européenne ou d'un Etat partie à l'accord sur l'Espace économique européen, non domiciliées en France et exerçant une activité ambulante sur le territoire français ; 2° Pour les sociétés, la raison ou la dénomination sociale, la forme juridique, le cas échéant, que la société est constituée d'un associé unique, le statut légal particulier et l'activité exercée, l'adresse du siège social, si ce siège n'est pas situé dans le ressort du tribunal, celui du premier établissement dans son ressort ; 3° Pour les groupements d'intérêt économique et les autres personnes morales, la dénomination, l'objet et l'adresse du siège.
Article A123-39
Chaque dossier individuel comprend un original, sous forme papier ou électronique, des inscriptions faites soit sur déclaration, soit d'office, ainsi que les pièces sous forme papier ou électronique conservées au greffe.
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Article A123-40
Chaque dossier annexe ouvert au nom d'une personne physique ou morale comprend un exemplaire des actes et pièces déposés en application des articles R. 123-82, R. 123-102 et R. 123-121-1.
Article A123-41
Les notifications faites aux centres de formalités des entreprises en application de l'article R. 123-83 précisent le nom de la personne tenue à l'immatriculation, ou la raison ou la dénomination sociale, le numéro unique d'identification, la date de l'inscription et son motif.
Paragraphe 2 : Des inscriptions sur déclaration
Sous-paragraphe 1 : De la présentation des déclarations
Article A123-42
Toute demande d'immatriculation à titre principal ou secondaire au registre du commerce et des sociétés, d'inscription complémentaire, modificative ou de radiation est établie dans les conditions prévues aux articles R. 123-84, R. 123-85, R. 123-87, R. 123-88, R. 123-89, R. 123-90 sur les documents mentionnés à l'article A. 123-44.
Article A123-43
Lorsque plusieurs inscriptions modificatives sont connexes et concernent la même immatriculation, elles peuvent être effectuées sur la même déclaration, dans la mesure où elles sont réalisées dans le délai réglementaire d'un mois. Une même déclaration peut comprendre une inscription complémentaire et des inscriptions modificatives connexes déclarées dans les délais réglementaires.
Article A123-44
Les déclarations sont faites en deux exemplaires sur des documents conformes aux modèles enregistrés par la direction chargée de la réforme de l'Etat. Les déclarations transmises par voie électronique sont établies à partir du même modèle.
Article A123-45
Toute demande d'immatriculation principale ou secondaire, d'inscription modificative et, le cas échéant, de radiation est accompagnée des pièces justifiant les mentions contenues dans la demande. Les pièces justificatives sont définies à l'annexe 1-1 au présent livre. Elles sont
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conservées par le greffe. Elles ne font pas partie du registre public et ne peuvent être communiquées aux tiers. La validité des pièces justificatives est appréciée à la date du dépôt du dossier unique.
Article A123-46
Lors d'une demande d'immatriculation résultant du transfert du siège d'un établissement ou du changement d'adresse de l'entreprise fixée au local d'habitation dans le ressort d'un autre tribunal, le requérant est dispensé de la production des pièces justificatives concernant les mentions non modifiées de la nouvelle immatriculation qui figure sur l'extrait de la précédente immatriculation fournie. En cas d'événements modificatifs concomitants à la décision de transfert de siège ou de l'établissement relatifs à ceux-ci, la déclaration est faite au lieu de la nouvelle immatriculation.A la réception de la notification mentionnée aux derniers alinéas des articles R. 123-49 et R. 123-110, le greffier de l'ancien siège ou de l'établissement mentionne d'office sur l'extrait du registre de la personne immatriculée la date, la nature et l'objet des actes déposés au greffe du nouveau siège ou du nouvel établissement.
Article A123-47
Lors d'une demande d'inscription modificative, le requérant fournit les pièces prévues à l'annexe 1-1 au présent livre, strictement nécessaires à la justification des changements et des adjonctions intervenus.
Article A123-48
Les déclarations des caisses d'épargne et de prévoyance sont faites en deux exemplaires sur des documents conformes aux modèles utilisés pour les déclarations des personnes morales au registre du commerce et des sociétés.
Article A123-49
Les demandes d'immatriculation des caisses d'épargne et de prévoyance ou, le cas échéant, d'inscription modificative sont accompagnées des pièces justificatives suivantes : 1° Le récépissé du dépôt des actes et pièces si la formalité n'est pas concomitante au dépôt ; 2° En cas de fusion ou de scission, un extrait d'immatriculation de chacune des caisses d'épargne participant à l'opération de fusion ou de scission ; 3° Pour les personnes physiques ayant le pouvoir général d'engager les caisses d'épargne et de prévoyance, pour les membres du conseil d'orientation et de surveillance, tous documents officiels justificatifs de l'identité et de la nationalité et, s'ils sont étrangers, les titres qui les habilitent à séjourner sur le territoire français ; 4° Pour les personnes morales, membres du conseil d'orientation et de surveillance, un extrait de l'immatriculation au registre du commerce et des sociétés ou le titre justifiant leur capacité juridique et pour le représentant permanent qui n'est pas le président du conseil d'administration ou le gérant de la personne morale, une copie de la décision lui conférant cette qualité ; 5° Pour les commissaires aux comptes, la justification de leur inscription sur la liste des commissaires aux comptes.
Article A123-50
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Les demandes d'immatriculation et d'inscription modificative des groupements européens d'intérêt économique sont accompagnées des pièces justificatives prévues par l'annexe 1-1 au présent livre.
Sous-paragraphe 2 : Du contrôle et de l'enregistrement des demandes.
Article A123-51
Le juge commis à la surveillance du registre du commerce et des sociétés demande le bulletin n° 2 du casier judiciaire : 1° Des personnes physiques soumises à immatriculation et des personnes physiques ayant le pouvoir d'engager à titre habituel la personne tenue à l'immatriculation ; 2° Des personnes physiques mentionnées à l'article R. 123-54, mentionnées au registre du commerce et des sociétés en vertu de l'immatriculation des sociétés commerciales, à l'exclusion des commissaires aux comptes ; 3° Des gérants des groupements européens d'intérêt économique, des personnes physiques membres des groupements d'intérêt économique, administrateurs et personnes chargées du contrôle de la gestion et du contrôle des comptes de ces groupements, à l'exclusion des commissaires aux comptes ; 4° Des gérants des sociétés civiles ; 5° Des personnes physiques mentionnées au registre du commerce et des sociétés, par suite de l'immatriculation d'une coopérative agricole, à l'exclusion des commissaires aux comptes ; 6° Des personnes ayant le pouvoir général d'engager les caisses d'épargne et de prévoyance vis-à-vis des tiers et des membres des conseils d'orientation et de surveillance. Ces personnes attestent, au préalable, qu'elles n'ont été l'objet d'aucune condamnation pénale ni de sanction civile ou administrative de nature à leur interdire de gérer, d'administrer ou diriger une personne morale et, s'il s'agit d'un commerçant, de nature à lui interdire d'exercer une activité commerciale. Au cas où le casier judiciaire révèle l'existence d'une interdiction d'exercer le commerce ou d'une condamnation de nature à interdire l'exercice de l'activité entreprise, le juge ordonne la radiation de l'immatriculation ou de l'inscription après en avoir préalablement avisé la personne concernée. Lorsque la personne physique concernée par la radiation est l'une de celles mentionnées aux 2°, 3°, 4° et 5° ci-dessus, le juge avise également la personne morale et lui demande de régulariser le cas échéant sa situation. Lorsqu'une autorisation administrative est accordée à titre provisoire et ne devient définitive qu'après l'immatriculation au registre du commerce et des sociétés, le greffier adresse à l'autorité administrative compétente un extrait de l'immatriculation dès vérification du casier judiciaire.
Article A123-52
Le déclarant peut demander au greffier la délivrance d'une attestation précisant la date inscrite au registre d'arrivée prévu à l'article R. 123-92.
Article A123-53
Le registre chronologique prévu à l'article R. 123-98 est tenu selon un procédé informatique.
Article A123-54
Le greffier notifie au requérant le numéro unique d'identification délivré par l'Institut national de la
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statistique et des études économiques dès sa réception. Il rappelle au requérant l'obligation de porter sur ses papiers d'affaires, outre les mentions obligatoires découlant des textes particuliers régissant la forme juridique de l'entreprise, les mentions prévues à l'article R. 123-237.
Paragraphe 3 : Des dépôts en annexe au registre
Sous-paragraphe 1 : Des dépôts incombant aux personnes morales dont le siège est sur le territoire français
Sous-sous-paragraphe 1 : Du dépôt des actes constitutifs
Article A123-55
Les caisses d'épargne et de prévoyance déposent les actes énumérés au 1° de l'article R. 123-103 suivant les modalités prévues par les articles R. 123-102 et suivants.
Article A123-56
Les statuts des caisses d'épargne et de prévoyance déposés en annexe au registre du commerce et des sociétés sont visés au préalable par la Caisse nationale des caisses d'épargne et de prévoyance.
Article A123-56
Les statuts des caisses d'épargne et de prévoyance déposés en annexe au registre du commerce et des sociétés sont visés au préalable par l'organe central des caisses d'épargne et des banques populaires.
Article A123-57
Les associations mentionnées à l'article A. 123-16 déposent en annexe au registre du commerce et des sociétés, au plus tard en même temps que leur demande d'immatriculation, en application du dernier alinéa de l'article R. 123-103 : 1° Deux copies de leurs statuts ; 2° Deux copies de la déclaration ou de l'inscription pour les associations d'Alsace-Moselle ou du Journal officiel qui a rendu publique l'association ; 3° Deux copies d'extraits des procès-verbaux de délibération des instances ayant désigné les organes de direction et de contrôle ou le conseil d'administration ; 4° Deux copies du procès-verbal des délibérations de l'assemblée générale constatant la décision d'émettre des obligations.
Article A123-58
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Les groupements européens d'intérêt économique mentionnés à l'article A. 123-18 déposent au plus tard en même temps que leur demande d'immatriculation : 1° Deux expéditions du contrat de groupement, s'ils sont établis par acte authentique, ou deux originaux, s'ils sont établis par acte sous seing privé ; celui-ci indique, le cas échéant, le nom et la résidence du notaire au rang des minutes duquel il a été déposé ; 2° Deux copies des actes de nomination des gérants du groupement, avec l'indication qu'ils peuvent agir seuls ou qu'ils agissent conjointement.
Sous-sous-paragraphe 2 : Du dépôt des actes modificatifs
Article A123-59
Le projet de transfert hors de France du siège d'un groupement européen d'intérêt économique, établi par le ou les gérants, est déposé au greffe du tribunal où le groupement est immatriculé.
Article A123-60
La décision constatant la clôture de la liquidation d'un groupement européen d'intérêt économique est déposée par le liquidateur en double exemplaire au greffe du tribunal où le groupement est immatriculé.
Sous-sous-paragraphe 3 : Du dépôt des documents comptables
Article A123-61
Pour effectuer la transmission électronique des documents comptables prévue au troisième alinéa de l'article R. 123-111, la société conclut un accord avec le greffe territorialement compétent. Le modèle de cet accord est établi par le directeur des services judiciaires, le président du Conseil national des greffiers des tribunaux de commerce et le directeur général de l'Institut national de la propriété industrielle.L'accord prévoit les formats d'échanges, l'ordre de transmission des documents aux greffes. La réception des documents est constatée par un récépissé électronique. Si l'envoi est incomplet, son contenu ne peut être diffusé et le déclarant est invité par le greffe à fournir les pièces manquantes dans les conditions prévues aux alinéas précédents. Le dépôt est validé par le greffe lorsqu'il a constaté que l'envoi est complet et régulier. Le greffe adresse un certificat de dépôt électronique au déclarant. Les documents sont alors transmis par voie électronique à l'Institut national de la propriété industrielle.
Article A123-62
Les caisses d'épargne et de prévoyance déposent les comptes annuels, la décision d'affectation des résultats, le rapport annuel du directeur général ou du directoire, le rapport annuel des commissaires aux comptes suivant les modalités prévues par les articles R. 123-102 et suivants.
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Sous-paragraphe 2 : Des dépôts incombant aux sociétés dont le siège est à l'étranger
Sous-paragraphe 3 : Dispositions communes
Sous-paragraphe 4 : Dispositions propres aux personnes physiques
Article A123-63
Un modèle d'attestation de délivrance de l'information, donnée par la personne physique qui s'immatricule, à son conjoint commun en biens sur les conséquences des dettes contractées dans l'exercice de sa profession sur les biens communs figure à l'annexe 1-2 au présent livre.
Paragraphe 4 : Des inscriptions d'office
Sous-paragraphe 1 : Des inscriptions modificatives
Sous-paragraphe 2 : Des radiations
Article A123-64
Si l'activité entreprise ne peut être exercée sans autorisation administrative, à l'exception du cas de non-renouvellement de cette autorisation, le greffier informe l'autorité administrative compétente des radiations d'office auxquelles il procède.
Paragraphe 5 : Du contentieux
Paragraphe 6 : De la publicité du registre
Sous-paragraphe 1 : De la communication et de l'inscription des actes
Article A123-65
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Les extraits du registre du commerce et des sociétés sont délivrés par les greffiers conformément à un modèle approuvé par le comité de coordination et disponible sur le site du ministère de la justice. Ils peuvent être soit imprimés, soit édités automatiquement avec les mêmes rubriques que l'imprimé disposées dans le même ordre, soit résulter de la duplication de la demande d'immatriculation et comporter, en tout état de cause, la signature du greffier.
Article A123-66
Les copies du registre du commerce et des sociétés peuvent être délivrées par voie électronique. Il est alors précisé que seul un document signé fait foi. Pour cette délivrance les greffiers se conforment aux dispositions de l'article R. 741-5 et l'Institut national de la propriété industrielle à celles de l'article R. 123-153.
Article A123-67
Sous réserve des dispositions de l'article R. 123-154, les greffiers et l'Institut national de la propriété industrielle sont habilités à répondre à des demandes relatives à des inscriptions radiées. Toutefois, au terme d'un délai de cinq ans, l'Institut national de la propriété industrielle peut ne conserver les documents que sur un support de substitution fiable et durable.
Article A123-68
L'Institut national de la propriété industrielle et les greffes délivrent les renseignements sur les documents comptables sous forme de copie ou en communication. Toutefois, pour les documents comptables antérieurs à ceux établis au titre des cinq derniers exercices, ces renseignements ne sont délivrés par l'Institut national de la propriété industrielle que sous forme d'extraits.
Article A123-69
Pour l'application de l'article R. 123-151 ne peuvent être utilisés comme critères de recherche : 1° La capacité des personnes ; 2° Les décisions intervenues dans les procédures de sauvegarde, de redressement et de liquidation judiciaire prononçant des sanctions personnelles ou patrimoniales à l'égard des commerçants ou des dirigeants de personne morale ; 3° Les mesures d'incapacité ou d'interdiction d'exercer une activité commerciale ou professionnelle de gérer, d'administrer ou de diriger une personne morale résultant d'une décision judiciaire ou administrative ; 4° Les actes de poursuite pénale et les sanctions pénales.
Article A123-70
Les demandes de renseignements relatives à l'état futur des dossiers peuvent être exécutées sur abonnement. Elles entraînent la délivrance d'un extrait ou d'une copie, soit à intervalle régulier dont la périodicité ne peut être inférieure à quinze jours, soit à l'occasion de toute inscription qu'elle soit portée d'office ou sur déclaration.
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Article A123-71
Les greffiers et l'Institut national de la propriété industrielle sont habilités à répondre à toute demande statistique.
Article A123-72
L'Institut national de la propriété industrielle ne délivre pas de renseignements sur les immatriculations et autres inscriptions effectuées avant le 1er mars 1954.
Article A123-73
L'Institut national de la propriété industrielle délivre les renseignements sur les immatriculations et autres opérations s'y rapportant concernant les registres du commerce d'Algérie jusqu'au 30 juin 1962.
Sous-paragraphe 2 : De la publication au Bulletin officiel des annonces civiles et commerciales
Article A123-74
L'avis au Bulletin officiel des annonces civiles et commerciales prévu à l'article R. 123-155 contient pour les caisses d'épargne et de prévoyance : 1° Les références de l'immatriculation ; 2° La dénomination suivie, le cas échéant, du sigle ; 3° Le montant de la dotation statutaire ; 4° L'adresse du siège ; 5° La forme juridique ; 6° Les nom, nom d'usage, pseudonyme et prénoms des : a) Personnes ayant le pouvoir général d'engager la caisse d'épargne et de prévoyance vis-à-vis des tiers ; b) Membres du conseil d'orientation et de surveillance, et commissaires aux comptes.
Article A123-75
L'avis d'immatriculation au Bulletin officiel des annonces civiles et commerciales, prévu à l'article R. 123-155, contient pour les groupements européens d'intérêt économique : 1° Les références de l'immatriculation ; 2° La dénomination ; 3° L'adresse du siège ; 4° L'objet ; 5° La durée du groupement lorsqu'elle n'est pas indéterminée ; 6° Les nom ou raison ou dénomination sociale, la forme juridique, le domicile ou siège social et, le cas échéant, les références d'immatriculation de chacun des membres du groupement ; 7° Les établissements secondaires ; 8° Les noms, nom d'usage, pseudonyme et prénoms des gérants avec l'indication qu'ils peuvent agir seuls ou qu'ils agissent conjointement ; 9° La clause exonérant un nouveau membre du paiement des dettes nées antérieurement à son entrée dans le groupement.
Article A123-76
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Le dépôt du projet de transfert hors de France d'un groupement européen d'intérêt économique mentionné à l'article A. 123-59 donne lieu à l'insertion d'un avis au Bulletin officiel des annonces civiles et commerciales.L'avis est établi et adressé par le greffier au bulletin dans les huit jours à compter du dépôt du projet de transfert du siège. Il contient les références de l'immatriculation, la dénomination, l'adresse du siège du groupement ainsi que le lieu où le transfert du siège est envisagé.
Article A123-77
La cession par un membre de sa participation dans un groupement d'intérêt économique européen, ou d'une fraction de celle-ci, donne lieu à l'insertion au Bulletin officiel des annonces civiles et commerciales d'un avis établi par le greffier. L'avis contient la dénomination du groupement, les références de l'immatriculation et l'indication de la cession intervenue.
Article A123-78
La nomination du ou des liquidateurs d'un groupement européen d'intérêt économique donne lieu à l'insertion au Bulletin officiel des annonces civiles et commerciales d'un avis établi par le greffier.L'avis contient la dénomination du groupement, ses références d'immatriculation, les nom, prénoms et domicile du ou des liquidateurs. Lorsque la nomination du ou des liquidateurs intervient en même temps que la décision prononçant la dissolution ou la nullité, l'avis prévu à l'article R. 123-159 est seul publié. Il indique dans ce cas les nom, nom d'usage, pseudonyme, prénoms et domicile du ou des liquidateurs.
Article A123-79
La décision constatant la clôture de la liquidation d'un groupement européen d'intérêt économique donne lieu à la publication au Bulletin officiel des annonces civiles et commerciales d'un avis établi et adressé par le greffier au bulletin dans les huit jours du dépôt. L'avis contient : 1° La dénomination du groupement ; 2° L'adresse du siège ; 3° Les références d'immatriculation au registre du commerce et des sociétés ; 4° Les nom, nom d'usage, pseudonyme et prénoms et domicile des liquidateurs ; 5° La date de réunion de l'assemblée de clôture, si les comptes des liquidateurs ont été approuvés par elle ou, à défaut, la date de la décision de justice constatant la clôture de la liquidation, avec l'indication du tribunal.
Article A123-80
Dans le mois suivant la publication au Bulletin officiel des annonces civiles et commerciales de l'avis de constitution ou de clôture de la liquidation d'un groupement, le greffier établit et adresse un avis à l'Office des publications officielles des Communautés européennes. L'avis contient la dénomination du groupement, les références d'immatriculation, la date et le lieu de son immatriculation, la date et le numéro du bulletin dans lequel a été publié l'avis de constitution ou de clôture de la liquidation.
Paragraphe 7 : Dispositions diverses
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Sous-section 3 : De la domiciliation des personnes morales immatriculées
Sous-section 4 : De la publication d'avis relatifs à la société européenne
Section 2 : De la comptabilité des commerçants
Sous-section 3 : Des activités commerciales et artisanales ambulantes
Article A123-80-1
La déclaration prévue à l'article L. 123-29 comporte, pièces justificatives à l'appui, les éléments suivants :
1° Pour une personne morale, la raison sociale ou la dénomination suivie, le cas échéant, du sigle, l'activité et l'adresse du siège social ainsi que les nom de naissance et, le cas échéant, nom d'usage, prénoms, date, lieu de naissance, nationalité de leur représentant légal ;
2° Pour une personne physique, les nom de naissance et, le cas échéant, nom d'usage, prénoms, date et lieu de naissance, nationalité, activité commerciale ou artisanale exercée et domicile ou commune de rattachement ;
En outre :
3° Si le déclarant est assujetti à immatriculation au registre du commerce et des sociétés, un extrait datant de moins de trois mois des inscriptions portées audit registre ;
4° Si le déclarant est assujetti à immatriculation au répertoire des métiers, un extrait datant de moins de trois mois des inscriptions portées audit répertoire ;
5° A défaut d'une immatriculation à un registre de publicité légale :
a) Pour les personnes physiques bénéficiant de la dispense d'immatriculation prévue par l'article L. 123-1-1 du code de commerce ou par le V de l'article 19 de la loi n° 96-603 du 5 juillet 1996 relative au développement et à la promotion du commerce et de l'artisanat, le certificat d'inscription au répertoire des entreprises et des établissements (SIRENE) ou, dans le cas d'un renouvellement, une attestation sur l'honneur certifiant qu'il bénéficie toujours de cette disposition ;
b) Pour les associations exerçant une activité commerciale, le certificat d'inscription au répertoire des entreprises et des établissements (SIRENE) ainsi que la copie de leur statut ;
c) Pour les ressortissants de l'Union européenne, personnes physiques et morales qui ne disposent pas d'établissement en France mais qui ont déclaré leur activité commerciale ou artisanale dans un
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autre pays de l'Union européenne, la preuve de cette déclaration ;
6° Une copie de la pièce d'identité ou, le cas échéant, d'un titre de circulation ou du titre de séjour du déclarant ;
7° Deux photographies d'identité récentes.
Le déclarant dispose d'un délai d'un mois, à compter de la réception de la notification de la liste des pièces justificatives manquantes, pour les transmettre au centre de formalités des entreprises qui les lui a réclamées.A défaut, une nouvelle déclaration doit être effectuée conformément à l'article L. 123-29.
Article A123-80-2
Lorsque la déclaration est effectuée concomitamment à une déclaration de création d'entreprise remise au centre de formalités des entreprises géré par une chambre de commerce et d'industrie ou par une chambre des métiers et de l'artisanat, la remise de la déclaration d'entreprise et de ses justificatifs vaut remise de la déclaration prévue à l'article L. 123-29. Le déclarant produit en complément deux photographies d'identité récentes.
Dans ce cas, la chambre de commerce et d'industrie ou la chambre des métiers et de l'artisanat conserve une copie de cette déclaration et des pièces justificatives dans un dossier propre au déclarant ou à l'entreprise qui les a déposées.
La déclaration d'activité ambulante d'une personne physique dont le domicile n'est pas situé dans le ressort du centre de formalités des entreprises compétent pour recevoir sa déclaration de création d'entreprise peut être reçue par ce centre, qui la transmet au CFE compétent pour traiter la déclaration d'activité ambulante.
Article A123-80-3
La carte permettant l'exercice d'une activité commerciale ou artisanale ambulante, prévue par l'article L. 123-29, est signée par le président de la chambre consulaire ou son représentant.
Elle comporte les mentions suivantes :
1° Le nom de naissance et, le cas échéant, le nom d'usage du titulaire, les prénoms, la date et le lieu de naissance, la nationalité, l'adresse du domicile ;
2° Le numéro unique d'identification (SIREN) de l'entreprise pour le compte de laquelle le titulaire exerce une activité ambulante ;
3° La raison sociale ou le nom commercial suivi, le cas échéant, du sigle, l'adresse du siège social ;
4° La nature de l'activité commerciale ou artisanale ambulante exercée ;
5° L'identification de la chambre consulaire qui a délivré la carte ;
6° La date de délivrance de la carte ;
7° La date d'expiration de la validité de la carte ;
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8° Un numéro d'ordre.
La carte comporte en outre une photographie d'identité du titulaire.
Article A123-80-4
Hormis le cas de la cessation d'activité, toute déclaration modificative portant sur les mentions des 1°, 3° ou 4° de l'article A. 123-80-3 entraîne la délivrance d'une nouvelle carte, après remise de la carte devenue obsolète, et après production :
-si le déclarant est assujetti à immatriculation au registre du commerce et des sociétés, d'un extrait datant de moins de trois mois des inscriptions portées audit registre ;
-si le déclarant est assujetti à immatriculation au répertoire des métiers, d'un extrait datant de moins de trois mois des inscriptions portées audit répertoire ;
-pour les déclarants visés au 5° de l'article A. 123-80-1, les justificatifs de la modification ou des modifications déclarées, accompagnés, pour ceux qui bénéficient de la dispense d'immatriculation prévue par l'article L. 123-1-1 du code de commerce ou par le V de l'article 19 de la loi n° 96-603 du 5 juillet 1996 relative au développement et à la promotion du commerce et de l'artisanat, d'une attestation sur l'honneur certifiant qu'ils bénéficient toujours de cette disposition ;
-de deux photographies d'identité récentes.
Article A123-80-5
Le montant de la redevance prévu à l'article R. 123-208-3 du code de commerce est fixé à 15 euros.
Article A123-80-6
Lorsque le déclarant en fait la demande, le certificat provisoire prévu au quatrième alinéa de l'article R. 123-208-3 est délivré par la chambre de commerce et d'industrie ou la chambre des métiers et de l'artisanat compétente sur présentation de la notification de l'immatriculation à un registre de publicité légale ou du certificat d'inscription au répertoire des entreprises et des établissements (SIRENE). Il mentionne que la carte permettant l'exercice d'une activité commerciale ou artisanale ambulante est en cours d'établissement. Il comporte, en fonction de la situation du déclarant, les éléments du 1° ou du 2° de l'article A. 123-80-1. Il précise que, la carte devant être délivrée dans le mois qui suit la remise du certificat en application de l'article R. 123-208-3, ce certificat perd toute validité à compter d'une date qu'il indique.
Article A123-80-7
Les bénéficiaires des dispositions prévues au quatrième alinéa de l'article R. 123-208-3 remettent leur certificat provisoire à l'autorité compétente au moment de la délivrance de la carte.
A l'occasion du renouvellement de déclaration prévu par l'article R. 123-208-4, les bénéficiaires remettent leur ancienne carte à l'autorité compétente au moment de la délivrance de la nouvelle carte.
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Article A123-80-8
Le dossier relatif à une déclaration d'activité commerciale ou artisanale ambulante est conservé jusqu'à la date du premier anniversaire de la date de renouvellement de la déclaration ou de la cessation d'activité de la personne lorsque cette cessation intervient avant le renouvellement.
Section 3 : Dispositions diverses
Sous-section 1 : Du Bulletin officiel des annonces civiles et commerciales
Sous-section 2 : Du système national d'identification et du répertoire des entreprises et de leurs établissements
Article A123-81
Sont habilités à demander l'inscription au répertoire national des personnes physiques exerçant de manière indépendante une profession non salariée, des personnes morales de droit public ou de droit privé, des institutions et services de l'Etat et des collectivités territoriales et de leurs établissements : 1° Les greffiers des tribunaux de commerce, les greffiers des tribunaux de grande instance statuant en matière commerciale, les greffiers des tribunaux d'instance du ressort des cours d'appel de Colmar et Metz spécialement chargés de la tenue du registre du commerce en ce qui concerne toute personne soumise à immatriculation au registre du commerce et des sociétés ; 2° Les chambres de métiers et de l'artisanat en ce qui concerne toute personne soumise à inscription au répertoire des métiers ; 3° Les unions de recouvrement des cotisations de sécurité sociale et d'allocations familiales, les caisses régionales d'assurance maladie et tout organisme gérant un régime obligatoire de sécurité sociale en ce qui concerne les professions libérales, les travailleurs indépendants, les non-salariés agricoles et tout employeur de personnel salarié, à l'exclusion des employeurs de personnel domestique ; 4° Les services départementaux de la direction générale des impôts en ce qui concerne toute personne, institution ou service soumis à une des catégories d'obligations fiscales définies par l'article A. 123-84 ; 5° Les centres de formalités des entreprises.
Article A123-82
Sont de plus habilités à demander l'inscription au répertoire les administrations et services suivants : 1° Le secrétariat général du Gouvernement en ce qui concerne les services d'administration centrale de l'Etat et les établissements publics nationaux ; 2° Les préfectures en ce qui concerne les collectivités locales, les établissements publics locaux, les services de l'Etat implantés dans leur circonscription, ainsi que toute personne morale, non soumise à déclaration au registre du commerce et des sociétés, rentrant dans une des catégories définies par arrêté conjoint du ministre chargé de l'intérieur et de la décentralisation et du ministre chargé de l'économie, des finances et du
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budget ; 3° Les trésoriers-payeurs généraux en ce qui concerne toute personne morale de droit public, institution ou service de l'Etat ; 4° Les directions départementales des services fiscaux et autres services de la direction générale des impôts à attributions domaniales en ce qui concerne les institutions, services et établissements publics de l'Etat assujettis à la réglementation relative au tableau général des propriétés de l'Etat, à l'exclusion des services et établissements publics relevant du ministère de la défense et du ministre chargé des PTT ; 5° Le service de l'informatique de gestion et des statistiques du ministre chargé de l'éducation nationale et les services académiques en ce qui concerne toute personne, institution ou service gérant un établissement d'enseignement agréé ; 6° Les directions régionales des affaires sanitaires et sociales pour toute personne, institution ou service gérant un établissement réglementé à caractère sanitaire ou social ; 7° La direction de la comptabilité et du budget du ministère chargé des PTT en ce qui concerne les services et établissements de ce ministère.
Article A123-83
Dans le cadre des opérations de mise à jour du répertoire, l'INSEE peut procéder à des enquêtes administratives sous réserve des dispositions prévues aux articles R. 123-228 à R. 123-230.
Article A123-84
Les personnes physiques ou morales susceptibles d'être inscrites immédiatement au répertoire national des entreprises et des établissements sont celles visées par au moins une des dispositions prévues ci-après : 1° Les personnes morales passibles de l'impôt sur les sociétés ou qui rentrent dans le champ d'application des articles 238 ter, 239 ter, 239 quater, 239 quater A, 239 quinquies et 239 septies du code général des impôts ; 2° Les assujettis aux taxes sur le chiffre d'affaires ou à la taxe sur les salaires ; 3° Les personnes physiques ou morales dont les revenus appartiennent à la catégorie des bénéfices non commerciaux ; 4° Les personnes physiques ou morales dont les revenus appartiennent à la catégorie des bénéfices industriels et commerciaux ; 5° Les personnes physiques ou morales dont les revenus appartenant à la catégorie des bénéfices agricoles sont déterminés d'après le bénéfice réel.
Article A123-85
Sont susceptibles d'être inscrits au répertoire national des entreprises et de leurs établissements, à la demande des unions de recouvrement des cotisations de sécurité sociale et d'allocations familiales ou des organismes en faisant fonction et éventuellement des caisses régionales d'assurance maladie, les employeurs et travailleurs indépendants des professions non agricoles assujetties au versement des cotisations de sécurité sociale et d'allocations familiales dans les conditions prévues par le code de la sécurité sociale.
Article A123-86
Aucun établissement dépendant du ministère de la défense ne peut faire l'objet d'une inscription au répertoire en dehors des modalités d'inscription qui sont définies par un arrêté conjoint du ministre chargé de la défense et du ministre chargé de l'économie, des finances et du budget.
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Article A123-87
Le traitement informatisé du système national d'identification et du répertoire des entreprises et établissements (SIRENE) régi par les articles R. 123-220 et suivants est mis en œuvre par l'Institut national de la statistique et des études économiques en liaison avec les administrations et organismes mentionnés à l'article R. 123-224.L'objet de ce traitement est : 1° L'identification des personnes physiques exerçant de manière indépendante une profession non salariée, des personnes morales de droit public ou de droit privé, des institutions et services de l'Etat et des collectivités territoriales, ainsi que de leurs établissements, lorsqu'ils relèvent du registre du commerce et des sociétés, du répertoire des métiers, ou qu'ils emploient du personnel salarié (non compris les personnels domestiques), sont soumis à des obligations fiscales ou bénéficient de transferts financiers publics ; 2° La production de statistiques concernant ces unités ; 3° La coordination des systèmes d'information des administrations et des organismes mentionnés au deuxième alinéa de l'article R. 123-232 ; 4° La communication à toutes personnes ou organismes qui en font la demande des informations figurant au répertoire dans les conditions et limites définies à l'article A. 123-89.
Article A123-88
Les catégories d'informations nominatives enregistrées sont, en ce qui concerne les personnes physiques, les suivantes : 1° Les nom, nom d'usage, prénoms, l'adresse légale, la date et le lieu de naissance, le numéro d'identification SIREN, ainsi que l'éventuelle cessation d'activité ; 2° Pour chacun de leurs établissements : sa dénomination usuelle, son adresse, son numéro d'identification SIRET et si nécessaire la date et l'origine de sa création ; 3° Les numéros de la nomenclature d'activités définie par le décret n° 2007-1888 portant approbation des nomenclatures d'activités et de produits françaises, attribués par l'INSEE pour caractériser leur activité (y compris celle de chacun des établissements) ; 4° Les catégories correspondant à l'importance de l'effectif salarié total et par établissement.
Article A123-89
Les destinataires de ces informations sont : 1° Les administrations et les organismes mentionnés à l'article R. 123-224 ; 2° Les personnes ou organismes qui en font la demande, sauf en ce qui concerne les dates et lieux de naissance des personnes physiques, dans les conditions définies aux articles A. 123-91 à A. 123-96.
Article A123-90
Le droit d'accès prévu par l'article 39 de la loi du 6 janvier 1978 s'exerce auprès du directeur régional de l'Institut national de la statistique et des études économiques.
Article A123-91
L'accès au service public d'information à vocation générale créé par le dernier alinéa de l'article R. 123-232 donne lieu au paiement d'une redevance dont les tarifs sont fixés par arrêté du ministre
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chargé de l'économie et des finances.
Article A123-92
L'INSEE peut passer avec des sociétés ou organismes spécialisés des conventions les chargeant de la diffusion du répertoire pour son compte et sous son contrôle.
Article A123-93
Les acquéreurs des informations du répertoire ne peuvent, sauf en cas de convention particulière passée avec l'INSEE, ni rediffuser à des tiers, à titre gratuit ou onéreux, ni transférer hors du territoire national les informations nominatives.
Article A123-94
Les acquéreurs des informations nominatives issues du répertoire SIRENE ne peuvent les utiliser qu'à des fins administratives, statistiques ou économiques. En particulier, les candidats et partis politiques ne peuvent les utiliser dans un but de propagande électorale ou de recherche de financement.
Article A123-95
La diffusion des renseignements inscrits dans SIRENE concernant les établissements du ministère de la défense est soumise à un accord préalable du ministre chargé de la défense.
Article A123-96
Toute personne physique peut demander par lettre recommandée avec demande d'avis de réception adressée au directeur général de l'Institut national de la statistique et des études économiques que les informations du répertoire la concernant ne puissent être utilisées par des tiers, autres que les organismes habilités au titre de l'article R. 123-224 ou les administrations, à des fins de publicité ou d'action commerciale.
Sous-section 3 : Du numéro unique d'identification des entreprises
Sous-section 4 : Des mentions sur les papiers d'affaires
Chapitre IV : Des sociétés coopératives de commerçants détaillants
Chapitre V : Des magasins collectifs de commerçants indépendants
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Chapitre VI : Des sociétés de caution mutuelle
Chapitre VII : Du contrat d'appui au projet d'entreprise pour la création ou la reprise d'une activité économique
Chapitre VIII : Des incapacités d'exercer une profession commerciale ou industrielle
Chapitre IX : Du tutorat en entreprise
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Partie Arrêtés
LIVRE Ier : Du commerce en général
TITRE III : Des courtiers, des commissionnaires, des transporteurs et des agents commerciaux
Chapitre Ier : Des courtiers
Chapitre II : Des commissionnaires
Chapitre III : Des transporteurs
Chapitre IV : Des agents commerciaux
Article A134-1
Tout requérant dépose en personne ou par mandataire auprès du greffier du tribunal de commerce une déclaration en double exemplaire aux termes de laquelle il affirme exercer sa profession dans les conditions prévues par le présent code.
Article A134-2
A l'appui de sa déclaration, le requérant présente : I. Dans tous les cas, un exemplaire de l'écrit signé avec un mandant, mentionnant le contenu du contrat d'agence, ou, à défaut, tout document établissant l'existence d'un tel contrat, traduit, le cas échéant, en langue française ; et, en outre, II. Pour les personnes physiques : 1° Les documents relatifs à l'identification mentionnés aux 1. 1, et le cas échéant aux 1. 2 et 1. 4. de l'annexe I de l'annexe 1-1 au présent livre ; 2° Un bulletin ou une demande d'affiliation à une caisse d'assurance vieillesse de non-salariés et un bulletin ou une demande d'affiliation à une caisse d'allocations familiales ; 3° L'attestation de délivrance de l'information, donnée conformément à l'article R. 134-5 à son conjoint commun en biens sur les conséquences des dettes contractées dans l'exercice de sa profession sur les biens communs, établie conformément au modèle figurant à l'annexe 1-2 au présent livre ; III. Pour les personnes morales : 1° Un extrait du registre du commerce et des sociétés datant de moins de trois mois ; 2° Pour les dirigeants, selon le cas, les documents mentionnés aux 1. 2. 1, 1. 2. 2, 1. 2. 4, 1. 2. 5, 1. 2. 6, 1. 2. 7 de l'annexe III de l'annexe 1-1 au présent livre ; 3° Pour les personnes mentionnées au 2° ci-dessus,
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un bulletin ou une demande d'affiliation à une caisse d'assurance vieillesse de non-salariés ou de salariés et, pour la société, un bulletin ou une demande d'affiliation à une caisse d'allocations familiales.
Article A134-3
Le greffier informe le juge commis à la surveillance du registre du commerce et des sociétés du dépôt de la déclaration afin que celui-ci demande le bulletin n° 2 du casier judiciaire dans les conditions prévues à l'article A. 123-51. Dès réception de ce bulletin, un numéro d'immatriculation est attribué, s'il y a lieu, au déclarant et le greffier remet à celui-ci un exemplaire de la déclaration prévue à l'article A. 134-1 qui tient lieu de récépissé. Le bulletin n° 2 du casier judiciaire et les pièces énumérées aux I et 1° du III de l'article A. 134-2 restent annexés à l'exemplaire de la déclaration déposée au greffe. Les étrangers qui ne sont pas inscrits au registre du commerce et des sociétés justifient en outre, par la production d'un extrait de casier judiciaire de leur pays d'origine ou d'un document équivalent délivré par une autorité judiciaire ou administrative de leur pays d'origine, traduit, le cas échéant, en langue française, qu'ils n'ont encouru aucune des condamnations ou sanctions mentionnées à l'article A. 123-51. Pour les étrangers qui justifient de l'absence dans leur pays de l'institution du casier judiciaire ou d'un registre équivalent ainsi que pour les réfugiés, ce document peut être remplacé par une déclaration sur l'honneur qu'ils n'ont encouru aucune des condamnations ou sanctions mentionnées à l'article A. 123-51.
Article A134-4
L'immatriculation est renouvelée sous le même numéro par période de cinq années avant la fin de chacune d'elles. Le requérant dépose à cette fin une déclaration dans les termes de l'article A. 134-1 et produit les pièces mentionnées à l'article A. 134-2.
Article A134-5
La déclaration modificative prévue au dernier alinéa de l'article R. 134-6 est faite en double exemplaire.L'un des exemplaires reste déposé au greffe, l'autre est remis au déposant et tient lieu de récépissé. Le greffier reçoit la déclaration modificative sur présentation des pièces mentionnées à l'article A. 134-2 et rendues nécessaires par cette déclaration. Le bulletin n° 2 du casier judiciaire est également demandé, conformément à l'article A. 134-3, pour les personnes exerçant nouvellement les fonctions mentionnées à l'article A. 123-51.
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Partie Arrêtés
LIVRE Ier : Du commerce en général
TITRE IV : Du fonds de commerce
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Partie Arrêtés
LIVRE Ier : Du commerce en général
ANNEXE 1-1 (ANNEXE AUX ARTICLES A. 123-45, A. 123-47, A. 123-50, A. 134-2)
Article Annexe 0
DISPOSITIONS GÉNÉRALES APPLICABLES À TOUTES LES DEMANDES
1. Lorsque le déclarant n'est pas en mesure de produire une ou plusieurs des pièces justificatives prévues par les annexes suivantes, il peut saisir par requête le juge commis à la surveillance du registre aux fins d'être dispensé, le cas échéant, de produire ces pièces. 2. Lorsque la personne tenue à l'immatriculation n'est pas en mesure de justifier de son identité par la pièce prescrite aux annexes, il peut en justifier par tout document officiel. 3. Dans tous les cas où les formalités sont effectuées par mandataire, celui-ci justifie d'une procuration. 4. Des justificatifs complémentaires peuvent être demandés au déclarant en cas de nécessité dûment justifiée par une situation particulière, lorsque la pièce produite est insuffisante ; des justificatifs complémentaires peuvent être nécessaires en application de textes spécifiques. 5. Lorsque la pièce mentionnée aux annexes suivantes est une décision définitive, il peut s'agir d'une ordonnance, d'un jugement ou d'un arrêt, et une copie de celui-ci est fournie accompagnée : # d'un certificat de l'avocat ou de l'avoué attestant son caractère définitif ; ou # d'un certificat de non-appel ou de non-pourvoi. 6. Les pièces et actes produits sont traduits en langue française et certifiés conformes, lorsque le greffier n'est pas en mesure de les comprendre dans leur langue d'origine.
Article Annexe I
DEMANDE D'IMMATRICULATION DES PERSONNES PHYSIQUES
1. Renseignements relatifs à la personne
1. 1. Identification de la personne tenue à l'immatriculation. 1. 1. 1. Français et ressortissants d'un Etat membre de l'UE. Copie de la carte nationale d'identité ou du passeport en cours de validité. 1. 1. 2. Personne ressortissant d'un Etat membre de l'Espace économique européen ou d'un Etat avec lequel ont été conclus des accords. Copie de la carte nationale d'identité ou du passeport en cours de validité. 1. 1. 3. Etrangers. 1. 1. 3. 1. Personne ne résidant pas en France : # copie de la carte d'identité ou du passeport ; # récépissé du dépôt de déclaration préalable délivré par la préfecture du lieu d'exercice de l'activité. 1. 1. 3. 2. Personne résidant en France : # copie du titre ou du récépissé du titre de séjour portant mention de l'activité commerciale, industrielle ou artisanale autorisée, de la carte de séjour vie privée et familiale ou de la carte de séjour portant la mention compétences et
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talents ; # ou copie de la carte de résident. 1. 2. Identification du conjoint qui a opté pour un statut en application de l'article L. 121-4. Conjoint collaborateur, conjoint salarié : justificatif d'identité faisant état du mariage. 1. 3. Conditions d'exercice. 1. 3. 1. Pour toutes les personnes mentionnées au 1. 1, attestation sur l'honneur, sur papier libre, relative à l'absence de condamnation ou de sanction civile ou administrative de nature à interdire l'exercice d'une activité commerciale, faisant apparaître la filiation. 1. 3. 2. Activité commerciale non sédentaire. 1. 3. 2. 1. (supprimé) 1. 3. 2. 2. Forains. Copie de l'attestation valant titre provisoire de circulation délivrée par l'autorité préfectorale. 1. 3. 3. Activité réglementée. Copie de l'autorisation provisoire ou définitive, du diplôme ou du titre, conformément à l'article R. 123-95. 1. 3. 4. Personne ayant le pouvoir d'engager l'assujetti. Personnes ayant le pouvoir dans l'établissement d'engager à titre habituel par leur signature l'assujetti : pièces prescrites par les rubriques 1. 1, 1. 3 et, le cas échéant, 1. 3. 3 de la présente annexe. 1. 4. Déclaration d'insaisissabilité.
Attestation notariée relative à l'insaisissabilité.
2. Renseignements relatifs à l'établissement
2. 1. Justificatif de la jouissance des locaux ou justificatif de l'adresse de l'entreprise fixée au local d'habitation, par tout document établi au nom de la personne tenue à l'immatriculation permettant de justifier la réalité de l'adresse déclarée. 2. 2. Origine d'un fonds de commerce acquis ou reçu : # par achat, licitation, attribution par voie de partage : copie de l'acte enregistré et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par voie de donation : copie de l'acte de donation ; # par dévolution successorale, sans partage ni licitation : copie de l'acte de notoriété ou de l'intitulé d'inventaire ; # par location-gérance : pour le locataire-gérant, copie du contrat de location-gérance et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par gérance-mandat : pour le mandataire, copie du contrat de gérance-mandat et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # dans le cadre d'un plan de cession, pour la gestion d'un fonds de commerce cédé : copie du jugement ordonnant le plan de cession. 2. 3. Etablissement situé dans un Etat membre de l'Union européenne. Extrait d'immatriculation ou document équivalent.
Article Annexe II
DEMANDE D'INSCRIPTION MODIFICATIVE DES PERSONNES PHYSIQUES
Lors de la demande d'inscription modificative, les pièces devant être présentées sont celles établissant les changements et adjonctions intervenus.
1. Renseignements relatifs à la personne
1. 1. Identification de la personne immatriculée. 1. 1. 1. Changement de nationalité. Copie de la décision attributive de la nationalité française ou document équivalent en cas d'adoption d'une nationalité étrangère, ou copie du Journal officiel de la République française. 1. 1. 2. Changement de nom de naissance ou de prénom. Copie de la carte nationale d'identité portant mention du nouveau nom. 1. 1. 3. Tutelle ou curatelle de la personne immatriculée. Copie de la décision définitive ordonnant de telles mesures ou en donnant mainlevée. 1. 1. 4. Décès de la personne immatriculée. Extrait de l'acte de décès. 1. 2. Conditions d'exercice. 1. 2. 1. Activité commerciale non sédentaire. 1. 2. 1. 2. Forains. Copie de l'attestation valant titre provisoire de circulation délivrée par l'autorité préfectorale. 1. 2. 2. Activité réglementée. Copie de l'autorisation provisoire ou définitive du diplôme ou du titre, conformément à l'article R. 123-95. 1. 2. 3. Personne ayant le pouvoir d'engager l'assujetti. Pour les personnes ayant le pouvoir dans l'établissement d'engager à
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titre habituel par leur signature l'assujetti : pièces prescrites par la rubrique 1. 1. de l'annexe I et le cas échéant le 1. 1. 1 et le 1. 1. 2 ci-dessus.
2. Renseignements relatifs à l'établissement
2. 1. Inscriptions modificatives ou complémentaires. 2. 1. 1. Transfert de l'établissement principal dans le ressort du même greffe : # justificatif de la jouissance des locaux ou justificatif de l'adresse de l'entreprise fixée au local d'habitation, par tout document établi au nom de la personne tenue à l'immatriculation permettant de justifier la réalité de l'adresse déclarée ; # origine du fonds de commerce acquis ou reçu : # par achat, licitation, attribution par voie de partage : copie de l'acte enregistré et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par voie de donation : copie de l'acte de donation ; # par dévolution successorale, sans partage ni licitation : copie de l'acte de notoriété ou de l'intitulé d'inventaire ; # par location-gérance : pour le locataire-gérant, copie du contrat de location-gérance et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par gérance-mandat : pour le mandataire, copie du contrat de gérance-mandat et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # dans le cadre d'un plan de cession, pour la gestion du fonds de commerce cédé : copie du jugement ordonnant le plan de cession. 2. 1. 2. Ouverture d'un établissement secondaire. Origine du fonds de commerce acquis ou reçu : # par achat, licitation, attribution par voie de partage : copie de l'acte enregistré et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par voie de donation : copie de l'acte de donation ; # par dévolution successorale, sans partage ni licitation : copie de l'acte de notoriété ou de l'intitulé d'inventaire ; # par location-gérance : pour le locataire-gérant, copie du contrat de location-gérance et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par gérance-mandat : pour le mandataire, copie du contrat de gérance-mandat et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # dans le cadre d'un plan de cession, pour la gestion du fonds de commerce cédé : copie du jugement ordonnant le plan de cession. 2. 2. Mention d'un établissement immatriculé dans un Etat membre de la Communauté européenne. Extrait d'immatriculation ou document équivalent.
Article Annexe III
DEMANDE D'IMMATRICULATION DES SOCIÉTÉS DE DROIT FRANÇAIS
1. Renseignements relatifs à la personne
1. 1. Identification de la société. Attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; pour les sociétés en nom collectif ou en commandite simple, copie de l'insertion. Le cas échéant, copie du récépissé de dépôt des actes constitutifs de la société déposés au greffe avant la demande d'immatriculation. 1. 2. Identification des dirigeants. 1. 2. 1. Pour les personnes physiques, associés et tiers, ayant le pouvoir de diriger, de gérer ou d'engager à titre habituel la société, ainsi que les administrateurs, les membres du directoire, les membres du conseil de surveillance. 1. 2. 1. 1. Si la personne est immatriculée au RCS à titre personnel : # extrait de l'immatriculation datant de moins de trois mois ou carte nationale d'identité ; # attestation sur l'honneur, sur papier libre, relative à l'absence de condamnation ou de sanction civile ou administrative de nature à interdire l'exercice d'une activité commerciale, faisant apparaître la filiation. 1. 2. 1. 2. Si la personne est mentionnée au RCS en qualité de dirigeant de personne morale : # extrait de l'immatriculation datant de moins de trois mois ou carte nationale d'identité ; # attestation sur l'honneur, sur papier libre, relative à l'absence de condamnation ou de sanction civile ou administrative de nature à interdire l'exercice d'une activité commerciale, faisant apparaître la filiation. 1. 2. 1. 3. Si la personne n'est pas immatriculée au RCS : 1. 2. 1. 3. 1. Français et ressortissants d'un Etat membre de l'Union européenne : # copie de la carte nationale d'identité ou du passeport en cours de validité ; # attestation sur l'honneur, sur papier libre, relative à l'absence de condamnation ou de sanction
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civile ou administrative de nature à interdire l'exercice d'une activité commerciale, faisant apparaître la filiation. 1. 2. 1. 3. 2. Personnes ressortissantes d'un Etat membre de l'Espace économique européen ou d'un Etat avec lequel ont été conclus des accords : # copie de la carte nationale d'identité ou passeport en cours de validité ; # attestation sur l'honneur, sur papier libre, relative à l'absence de condamnation ou de sanction civile ou administrative de nature à interdire l'exercice d'une activité commerciale, faisant apparaître la filiation. 1. 2. 1. 3. 3. Etrangers. 1. 2. 1. 3. 3. 1. Personne ne résidant pas en France : # copie de la carte nationale d'identité ou du passeport en cours de validité ; # récépissé du dépôt de déclaration préalable délivré par la préfecture du lieu d'exercice de l'activité (uniquement pour les sociétés commerciales et / ou artisanales) ; # attestation sur l'honneur, sur papier libre, relative à l'absence de condamnation ou de sanction civile ou administrative de nature à interdire l'exercice d'une activité commerciale, faisant apparaître la filiation. 1. 2. 1. 3. 3. 2. Personne résidant en France : # copie du titre ou récépissé du titre de séjour portant mention de l'activité commerciale, industrielle ou artisanale autorisée, du titre de séjour vie privée et familiale ou de la carte de séjour portant la mention compétences et talents ; # ou copie de la carte de résident ; pour une société civile, tout document justifiant de l'identité du déclarant ; # attestation sur l'honneur, sur papier libre, relative à l'absence de condamnation ou de sanction civile ou administrative de nature à interdire l'exercice d'une activité commerciale, faisant apparaître la filiation. 1. 2. 2. Pour les personnes morales. Extrait de l'immatriculation au RCS datant de moins de trois mois ou, pour les personnes morales non immatriculées au RCS, titre justifiant leur existence, le cas échéant traduit en langue française. Le cas échéant, dans les cas où il y a une obligation légale de désigner un représentant permanent de la personne morale : pièces prescrites par la rubrique 1. 2. 1 et copie de la décision lui conférant cette qualité. Pour les personnes relevant de la législation d'un Etat non membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen ou pour les personnes non immatriculées : pièces prescrites par la rubrique 1. 2. 1 ci-dessus. 1. 2. 3. Pour les commissaires aux comptes : # lettre d'acceptation de la mission ; # si le commissaire aux comptes n'est pas encore mentionné sur la liste publiée, attestation d'inscription sur la liste. 1. 2. 4. Pour les associés indéfiniment et solidairement responsables. 1. 2. 4. 1. Français et ressortissants d'un Etat membre de l'Union européenne : # copie de la carte nationale d'identité ou du passeport en cours de validité ; # attestation sur l'honneur, sur papier libre, relative à l'absence de condamnation ou de sanction civile ou administrative de nature à interdire l'exercice d'une activité commerciale, faisant apparaître la filiation. 1. 2. 4. 2. Personnes ressortissantes d'un Etat membre de l'Espace économique européen ou d'un Etat avec lequel ont été conclus des accords : # copie de la carte nationale d'identité ou du passeport en cours de validité ; # attestation sur l'honneur, sur papier libre, relative à l'absence de condamnation ou de sanction civile ou administrative de nature à interdire l'exercice d'une activité commerciale, faisant apparaître la filiation. 1. 2. 4. 3. Etrangers. 1. 2. 4. 3. 1. Personne ne résidant pas en France : # copie de la carte nationale d'identité ou du passeport en cours de validité ; # récépissé du dépôt de déclaration préalable délivré par la préfecture du lieu d'exercice de l'activité (uniquement pour les activités commerciales, industrielles ou artisanales) ; # attestation sur l'honneur, sur papier libre, relative à l'absence de condamnation ou de sanction civile ou administrative de nature à interdire l'exercice d'une activité commerciale, faisant apparaître la filiation. 1. 2. 4. 3. 2. Personne résidant en France : # copie du titre ou récépissé du titre de séjour portant mention de l'activité commerciale, industrielle ou artisanale autorisée, du titre de séjour vie privée et familiale ou de la carte de séjour portant la mention compétences et talents ; # ou copie de la carte de résident ; pour une société civile dont les associés sont indéfiniment et solidairement responsables, tout document justifiant de l'identité du déclarant ; # attestation sur l'honneur, sur papier libre, relative à l'absence de condamnation ou de sanction civile ou administrative de nature à interdire l'exercice d'une activité commerciale, faisant apparaître la filiation. 1. 2. 4. 4. Personnes morales : # extrait de l'immatriculation au RCS datant de moins de trois mois ou pour les personnes morales non immatriculées : titre justifiant leur existence, traduit le cas échéant en langue française. 1. 2. 5. Pour les associés indéfiniment responsables : # pour une personne physique : copie de la carte nationale d'identité ou du passeport en cours de validité ; # pour les personnes morales : extrait de l'immatriculation datant de moins de trois mois
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ou, pour les personnes morales non immatriculées, titre justifiant leur existence, traduit le cas échéant en langue française. 1. 2. 6. Identification des personnes ayant le pouvoir de diriger, de gérer ou d'engager à titre habituel par leur signature : # copie de la carte nationale d'identité ou du passeport en cours de validité ; # le cas échéant, pour un étranger, le titre de séjour en cours de validité ; # attestation sur l'honneur, sur papier libre, relative à l'absence de condamnation ou de sanction civile ou administrative de nature à interdire l'exercice d'une activité commerciale, faisant apparaître la filiation. 1. 2. 7. Identification du conjoint qui a opté pour un statut en application de l'article L. 121-4. Conjoint collaborateur, conjoint associé : justificatif d'identité faisant état du mariage. 1. 3. Conditions d'exercice. 1. 3. 1. (supprimé) 1. 3. 2. Activité réglementée. Copie de l'autorisation provisoire ou définitive, du diplôme ou du titre conformément à l'article R. 123-95.
2. Renseignements relatifs au siège
2. 1. Justificatif de la jouissance des locaux où est installé le siège par tout document établi au nom de la société permettant de justifier la réalité de l'adresse déclarée. 2. 2. Si le représentant légal use de la faculté d'installer le siège à son domicile pour une durée limitée, justificatif de son domicile par tout document établi à son nom permettant de justifier la réalité de l'adresse déclarée. 2. 3. Occupation de locaux en commun : si le siège social est situé dans les locaux occupés en commun par une ou plusieurs entreprises, copie du contrat de domiciliation mentionné aux articles R. 123-167 et suivants et extrait du RCS ou du répertoire des métiers du domiciliataire, sauf si celui-ci est immatriculé dans le même greffe ou s'il est une personne morale française de droit public ou une association regroupant des personnes morales françaises de droit public.
3. Renseignements relatifs à l'établissement
3. 1. Acquisition d'un fonds de commerce. Par achat, licitation : copie de l'acte et attestation de parution dans un journal d'annonces légales ou copie de celui-ci. Par donation : copie de l'acte. Par apport : copie de l'acte et attestation de parution dans un journal d'annonces légales ou copie de celui-ci. 3. 2. Location-gérance d'un fonds de commerce. Copie du contrat de location-gérance et attestation de parution dans un journal d'annonces légales ou copie de celui-ci. 3. 3. Gérance-mandat d'un fonds de commerce. Copie du contrat de gérance-mandat et attestation de parution dans un journal d'annonces légales ou copie de celui-ci. 3. 4. Gestion d'un fonds de commerce cédé dans le cadre d'un plan de cession. Copie du jugement ordonnant un plan de cession. 3. 5. Fusion par création d'une société nouvelle, scission au profit de sociétés nouvelles, apport partiel d'actif, régime fusion / scission. Extrait du RCS des sociétés participant avec mention de l'opération et attestation de parution dans un journal d'annonces légales ou copie de celui-ci. 3. 6. Mention des établissements immatriculés dans un pays de la Communauté européenne. Extrait d'immatriculation.
Article Annexe IV
DEMANDE D'INSCRIPTION MODIFICATIVE DES SOCIÉTÉS DE DROIT FRANÇAIS
Lors de la demande d'inscription modificative, les pièces devant être présentées sont celles demandées dans l'annexe précédente et établissant les changements et adjonctions intervenus. Le cas échéant, attestation de parution dans un journal d'annonces légales ou copie de celui-ci, ou, pour les sociétés en nom collectif ou en commandite simple, copie de l'insertion.
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1. Renseignements relatifs à la personne
1. 1. Lorsque le dépôt au greffe des actes a été effectué avant la déclaration de modification, copie du récépissé du dépôt. 1. 2. Extrait d'immatriculation datant de moins de trois mois de chacune des sociétés participant à l'opération de fusion et de scission. 1. 3. Identification des dirigeants : pièces établissant les modifications de situation prévues à l'annexe précédente ou au 1 de l'annexe II.
2. Renseignements relatifs à l'établissement
2. 1. Ouverture d'un établissement sur transfert dans le ressort du même greffe. 2. 1. 1. Transfert du siège. 2. 1. 1. 1. Justificatif de la jouissance des locaux où est installé le siège par tout document établi au nom de la société permettant de justifier la réalité de l'adresse déclarée. 2. 1. 1. 2. Si le représentant légal use de la faculté d'installer le siège à son domicile pour une durée limitée, justificatif de son domicile par tout document permettant de justifier la réalité de l'adresse déclarée. 2. 1. 1. 3. Occupation de locaux en commun : si le siège social est situé dans les locaux occupés en commun par une ou plusieurs entreprises, copie du contrat de domiciliation mentionné aux articles R. 123-167 et suivants et extrait du RCS ou du répertoire des métiers du domiciliataire, sauf si celui-ci est immatriculé dans le même greffe ou s'il est une personne morale française de droit public ou une association regroupant des personnes morales françaises de droit public. 2. 1. 2. Transfert de l'établissement principal. Origine d'un fonds de commerce acquis ou reçu : # par achat, licitation, attribution par voie de partage : copie de l'acte enregistré et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par voie de donation : copie de l'acte de donation ; # par apport : copie du traité d'apport et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; pour l'apport à une société en nom collectif ou en commandite simple, copie de l'insertion ; # par location-gérance : pour le locataire-gérant, copie du contrat de location-gérance et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par gérance-mandat : pour le mandataire, copie du contrat de gérance-mandat et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # dans le cadre d'un plan de cession, pour la gestion du fonds de commerce cédé : copie du jugement ordonnant le plan de cession. 2. 2. Inscriptions complémentaires. 2. 2. 1. Ouverture d'un établissement secondaire. Origine du fonds de commerce acquis ou reçu : # par achat, licitation, attribution par voie de partage : copie de l'acte enregistré et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par voie de donation : copie de l'acte de donation ; # par apport : copie du traité d'apport et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par location-gérance : pour le locataire-gérant, copie du contrat de location-gérance et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par gérance-mandat : pour le mandataire, copie du contrat de gérance-mandat et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # dans le cadre d'un plan de cession, pour la gestion du fonds de commerce cédé : copie du jugement ordonnant le plan de cession. 2. 2. 2. Transfert d'un
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établissement secondaire. Origine du fonds de commerce acquis ou reçu : # par achat, licitation, attribution par voie de partage : copie de l'acte enregistré et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par voie de donation : copie de l'acte de donation ; # par apport : copie du traité d'apport et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par location-gérance : pour le locataire-gérant, copie du contrat de location-gérance et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par gérance-mandat : pour le mandataire, copie du contrat de gérance-mandat et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # dans le cadre d'un plan de cession, pour la gestion du fonds de commerce cédé : copie du jugement ordonnant le plan de cession. 2. 3. Mention d'un établissement immatriculé dans un Etat membre de la Communauté européenne. Extrait d'immatriculation.
Article Annexe V
DEMANDE D'IMMATRICULATION DANS LE RESSORT D'UN NOUVEAU GREFFE D'UNE PERSONNE PHYSIQUE OU MORALE DÉJÀ IMMATRICULÉE AU RCS
1. Immatriculation principale suite au transfert
1. 1. Transfert du siège d'une personne morale : # extrait d'immatriculation du précédent siège datant de moins de trois mois ; # justificatif de la jouissance des locaux où est installé le siège par tout document établi au nom de la société permettant de justifier la réalité de l'adresse déclarée ; # si le représentant légal use de la faculté d'installer le siège à son domicile pour une durée limitée, justificatif de son domicile par tout document établi à son nom permettant de justifier la réalité de l'adresse déclarée ; # occupation de locaux en commun : si le siège social est situé dans les locaux occupés en commun par une ou plusieurs entreprises, copie du contrat de domiciliation mentionné aux articles R. 123-167 et suivants et extrait du RCS ou du répertoire des métiers du domiciliataire, sauf si celui-ci est immatriculé dans le même greffe ou s'il est une personne morale française de droit public ou une association regroupant des personnes morales françaises de droit public ; # lorsque le dépôt des actes décidant le transfert a été effectué avant la déclaration de modification, copie du récépissé de dépôt ; # le cas échéant, attestation de parution dans un journal d'annonces légales ou copie de celui-ci. 1. 2. Transfert de l'établissement principal pour une personne physique : # extrait de la précédente immatriculation principale datant de moins de trois mois ; # justificatif de la jouissance des locaux ou justificatif de l'adresse de l'entreprise fixée au local d'habitation, par tout document établi au nom de la personne tenue à l'immatriculation permettant de justifier la réalité de l'adresse déclarée ; # origine d'un fonds de commerce acquis ou reçu : # par achat, licitation, attribution par voie de partage : copie de l'acte enregistré et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par voie de donation : copie de l'acte de donation ; # par dévolution successorale, sans partage ni licitation, copie de l'acte de notoriété ou de l'intitulé d'inventaire ; # par location-gérance : pour le locataire-gérant, copie du contrat de location-gérance et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par gérance-mandat : pour le mandataire, copie du contrat de gérance-mandat et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # dans le cadre d'un plan de cession, pour la gestion du fonds de commerce cédé, copie du jugement ordonnant le plan de cession.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
2. Immatriculation secondaire
2. 1. Ouverture d'un établissement secondaire : # extrait de l'immatriculation principale datant de moins de trois mois ; # origine du fonds de commerce acquis ou reçu : # par achat, licitation, attribution par voie de partage : copie de l'acte enregistré et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par voie de donation : copie de l'acte de donation ; # par dévolution successorale, sans partage ni licitation ; copie de l'acte de notoriété ou de l'intitulé d'inventaire ; # par location-gérance : pour le locataire-gérant, copie du contrat de location-gérance et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par gérance-mandat : pour le mandataire, copie du contrat de gérance-mandat et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # dans le cadre d'un plan de cession, pour la gestion du fonds de commerce cédé : copie du jugement ordonnant le plan de cession. 2. 2. Ouverture d'un établissement sur transfert. 2. 2. 1. Transfert d'un établissement principal : # extrait d'immatriculation du précédent établissement principal datant de moins de trois mois ; # origine du fonds de commerce acquis ou reçu : # par achat, licitation, attribution par voie de partage : copie de l'acte enregistré et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par voie de donation : copie de l'acte de donation ; # par dévolution successorale, sans partage ni licitation : copie de l'acte de notoriété ou de l'intitulé d'inventaire ; # par location-gérance : pour le locataire-gérant, copie du contrat de location-gérance et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par gérance-mandat : pour le mandataire, copie du contrat de gérance-mandat et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # dans le cadre d'un plan de cession, pour la gestion du fonds de commerce cédé : copie du jugement ordonnant le plan de cession. 2. 2. 2. Transfert d'un établissement secondaire : # extrait de l'immatriculation du précédent établissement secondaire datant de moins de trois mois ; # origine du fonds de commerce acquis ou reçu : # par achat, licitation, attribution par voie de partage : copie de l'acte enregistré et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par voie de donation : copie de l'acte de donation ; # par apport : copie de l'acte et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par location-gérance : pour le locataire-gérant, copie du contrat de location-gérance et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par gérance-mandat : pour le mandataire, copie du contrat de gérance-mandat et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # dans le cadre d'un plan de cession, pour la gestion du fonds de commerce cédé : copie du jugement ordonnant le plan de cession.
Article Annexe VI
DEMANDE D'IMMATRICULATION ET D'INSCRIPTION MODIFICATIVE DES SOCIÉTÉS COMMERCIALES DONT LE SIÈGE EST SITUÉ À L'ÉTRANGER
1. Renseignements relatifs à la personne
1. 1. Identification de la société. Lorsque le dépôt au greffe des statuts traduits en langue française a été effectué avant la demande d'immatriculation, copie du récépissé du dépôt. Extrait de l'immatriculation au registre des sociétés étranger ou titre justifiant l'existence, traduit, le cas échéant, en langue française. 1. 2. Identification des personnes ayant le pouvoir d'engager la société en France. 1. 2. 1. Français et ressortissants d'un Etat membre de l'Union européenne : # copie de la carte nationale d'identité ou du passeport en cours de validité ; # attestation sur l'honneur relative à
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
l'absence de condamnation ou de sanction civile ou administrative de nature à interdire l'exercice d'une activité commerciale, faisant apparaître la filiation. 1. 2. 2. Personnes ressortissantes d'un Etat membre de l'Espace économique européen ou d'un Etat avec lequel ont été conclus des accords particuliers : # copie de la carte nationale d'identité ou passeport en cours de validité ; # attestation sur l'honneur, sur papier libre, relative à l'absence de condamnation ou de sanction civile ou administrative de nature à interdire l'exercice d'une activité commerciale, faisant apparaître la filiation. 1. 2. 3. Etrangers. 1. 2. 3. 1. Personne ne résidant pas en France : # copie de la carte nationale d'identité ou du passeport en cours de validité ; # récépissé du dépôt de déclaration préalable ; # attestation sur l'honneur, sur papier libre, relative à l'absence de condamnation ou de sanction civile ou administrative de nature à interdire l'exercice d'une activité commerciale, faisant apparaître la filiation. 1. 2. 3. 2. Personne résidant en France : # copie du titre ou récépissé du titre de séjour portant mention de l'activité commerciale, industrielle ou artisanale autorisée, du titre de séjour vie privée et familiale ou de la carte de séjour portant la mention compétences et talents ; # ou, le cas échéant, copie de la carte de résident ; # attestation sur l'honneur, sur papier libre, relative à l'absence de condamnation ou de sanction civile ou administrative de nature à interdire l'exercice d'une activité commerciale, faisant apparaître la filiation. 1. 3. Conditions d'exercice. 1. 3. 1. (supprimé) 1. 3. 2. Activité réglementée. Copie de l'autorisation provisoire ou définitive du diplôme ou du titre conformément à l'article R. 123-95. 1. 3. 3. Personne ayant le pouvoir d'engager l'assujetti. Pour les personnes ayant le pouvoir dans l'établissement d'engager à titre habituel par leur signature l'assujetti : pièces prescrites au 1. 2 ci-dessus.
2. Renseignements relatifs au premier établissement en France
2. 1. Justificatif de la jouissance des locaux ou justificatif de l'adresse de l'entreprise fixée au local d'habitation, par tout document établi au nom de la personne tenue à l'immatriculation permettant de justifier la réalité de l'adresse déclarée. 2. 2. Origine du fonds de commerce acquis ou reçu : # par achat, licitation, attribution par voie de partage : copie de l'acte enregistré et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par voie de donation : copie de l'acte de donation ; # par apport : copie de l'acte et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par location-gérance : pour le locataire-gérant, copie du contrat de location-gérance et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par gérance-mandat : pour le mandataire, copie du contrat de gérance-mandat et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # dans le cadre d'un plan de cession, pour la gestion du fonds de commerce cédé : copie du jugement ordonnant le plan de cession.
3. Ouverture d'un établissement dans le ressort d'un nouveau greffe
3. 1. Immatriculation principale suite au transfert du premier établissement : # extrait d'immatriculation de la précédente immatriculation datant de moins de trois mois ; # justificatif de la jouissance des locaux où est installé le siège par tout document établi au nom de la société permettant de justifier la réalité de l'adresse déclarée ; # si le représentant légal use de la faculté d'installer le siège à son domicile pour une durée limitée, justificatif de son domicile par tout document établi à son nom permettant de justifier la réalité de l'adresse déclarée ; # occupation de locaux en commun : si le siège social est situé dans les locaux occupés en commun par une ou plusieurs entreprises : copie du contrat de domiciliation mentionné aux articles R. 123-167 et suivants et extrait du RCS ou du répertoire des métiers du domiciliataire, sauf si celui-ci est immatriculé dans le même greffe ou s'il est une personne morale française de droit public ou une association regroupant des personnes morales françaises de droit public ; # origine du fonds de commerce acquis ou reçu : # par achat, licitation, attribution par voie de partage : copie de l'acte enregistré et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par voie de donation : copie de l'acte de donation ; # par apport : copie de l'acte et attestation de
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
parution dans un journal d'annonces légales ou copie de celui-ci ; # par location-gérance : pour le locataire-gérant, copie du contrat de location-gérance et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par gérance-mandat : pour le mandataire, copie du contrat de gérance-mandat et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # dans le cadre d'un plan de cession, pour la gestion du fonds de commerce cédé : copie du jugement ordonnant le plan de cession. 3. 2. Immatriculation secondaire suite à l'ouverture d'un nouvel établissement : # extrait de l'immatriculation principale datant de moins de trois mois ; # origine du fonds de commerce acquis ou reçu : # par achat, licitation, attribution par voie de partage : copie de l'acte enregistré et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par voie de donation : copie de l'acte de donation ; # par apport : copie de l'acte et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par location-gérance : pour le locataire-gérant, copie du contrat de location-gérance et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par gérance-mandat : pour le mandataire, copie du contrat de gérance-mandat et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # dans le cadre d'un plan de cession, pour la gestion du fonds de commerce cédé : copie du jugement ordonnant le plan de cession.
Article Annexe VII
DEMANDE D'IMMATRICULATION DES GROUPEMENTS D'INTÉRÊT ÉCONOMIQUE ET DES GROUPEMENTS EUROPÉENS D'INTÉRÊT ÉCONOMIQUE
1. Renseignements relatifs à la personne
1. 1. Identification du groupement. Lorsque le dépôt au greffe des actes constitutifs du groupement a été effectué avant la demande d'immatriculation, copie du récépissé de dépôt. 1. 2. Membres du groupement. 1. 2. 1. Personnes physiques. 1. 2. 1. 1. Immatriculées au RCS. Extrait de l'immatriculation datant de moins de trois mois. 1. 2. 1. 2. Non immatriculées au RCS. 1. 2. 1. 2. 1. Français et ressortissants d'un Etat membre de l'UE. Copie de la carte nationale d'identité ou du passeport en cours de validité. 1. 2. 1. 2. 2. Personne ressortissant d'un Etat membre de l'Espace économique européen ou d'un Etat avec lequel ont été conclus des accords particuliers. Copie de la carte nationale d'identité ou du passeport en cours de validité. 1. 2. 1. 2. 3. Etrangers. 1. 2. 1. 2. 3. 1. Personne ne résidant pas en France : # copie de la carte nationale d'identité ou du passeport en cours de validité. 1. 2. 1. 2. 1. 3. 2. Personne résidant en France : # copie d'un titre de séjour en cours de validité ; # ou copie de la carte de résident. 1. 2. 2. Personnes morales. Immatriculées au RCS : extrait de l'immatriculation datant de moins de trois mois. Non immatriculées au RCS : titre établissant leur existence. 1. 3. Personnes chargées d'administrer ou de contrôler la gestion et les comptes du groupement. 1. 3. 1. Personnes immatriculées au RCS. Extrait d'immatriculation datant de moins de trois mois. 1. 3. 2. Personnes non immatriculées au RCS. 1. 3. 2. 1. Personnes physiques. 1. 3. 2. 1. 1. Français et ressortissants d'un Etat membre de l'Union européenne. Copie de la carte nationale d'identité ou du passeport en cours de validité. 1. 3. 2. 1. 2. Personnes ressortissants d'un Etat membre de l'Espace économique européen ou d'un Etat avec lequel ont été conclus des accords particuliers : Copie de la carte nationale d'identité ou du passeport en cours de validité. 1. 3. 2. 1. 3. Etrangers. 1. 3. 2. 1. 3. 1. Personnes ne résidant pas en France. # copie de la carte nationale d'identité ou du passeport en cours de validité ; # récépissé du dépôt de déclaration préalable délivré par la préfecture du lieu d'exercice de l'activité. 1. 3. 2. 1. 3. 2. Personnes résidant en France. # copie du titre ou récépissé du titre de séjour portant mention de l'activité commerciale,
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
industrielle ou artisanale autorisée, du titre de séjour vie privée et familiale ou de la carte de séjour portant la mention compétences et talents ; # ou copie de la carte de résident. 1. 3. 2. 2. Personnes morales : # titre établissant leur existence ; # copie de la pièce portant désignation du représentant permanent. 1. 4. Conditions d'exercice. 1. 4. 1. Attestation sur l'honneur, sur papier libre, relative à l'absence de condamnation ou de sanction civile ou administrative de nature à interdire l'exercice d'une activité commerciale, faisant apparaître la filiation pour les personnes mentionnées à l'article A. 123-50. 1. 4. 2. Activité réglementée : copie de l'autorisation provisoire ou définitive, du diplôme ou du titre, conformément à l'article R. 123-95.
2. Renseignements relatifs au siège
2. 1. Justificatif de la jouissance des locaux où est installé le siège par tout document établi au nom du groupement permettant de justifier la réalité de l'adresse déclarée. 2. 2. Si le représentant légal use de la faculté d'installer le siège à son domicile pour une durée limitée, justificatif de son domicile par tout document établi à son nom permettant de justifier la réalité de l'adresse déclarée. 2. 3. Occupation de locaux en commun : si le siège social est situé dans les locaux occupés en commun par une ou plusieurs entreprises, copie du contrat de domiciliation mentionné aux articles R. 123-167 et suivants et extrait du RCS ou du répertoire des métiers du domiciliataire, sauf si celui-ci est immatriculé dans le même greffe ou s'il est une personne morale française de droit public ou une association regroupant des personnes morales françaises de droit public.
3. Renseignements relatifs à l'établissement
3. 1. Acquisition d'un fonds de commerce par un groupement à objet commercial : # par achat, licitation : copie de l'acte et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par donation : copie de l'acte ; # par apport : copie de l'acte et attestation de parution dans un journal d'annonces légales ou copie de celui-ci. 3. 2. Location-gérance d'un fonds de commerce par un groupement à objet commercial. Copie du contrat de location-gérance et attestation de parution dans un journal d'annonces légales ou copie de celui-ci. 3. 3. Gérance-mandat d'un fonds de commerce par un groupement à objet commercial. Copie du contrat de gérance-mandat et attestation de parution dans un journal d'annonces légales ou copie de celui-ci. 3. 4. Gestion d'un fonds de commerce cédé dans le cadre d'un plan de cession. Copie du jugement ordonnant un plan de cession.
4. Immatriculation secondaire
Extrait de l'immatriculation principale datant de moins de trois mois. Origine du fonds de commerce acquis ou reçu par le groupement à objet commercial : # par achat, licitation, attribution par voie de partage : copie de l'acte enregistré et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par voie de donation : copie de l'acte de donation ; # par location-gérance : pour
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
le locataire-gérant, copie du contrat de location-gérance et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # par gérance-mandat : pour le mandataire, copie du contrat de gérance-mandat et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ; # dans le cadre d'un plan de cession, pour la gestion du fonds de commerce cédé : copie du jugement ordonnant le plan de cession.
Article Annexe VIII
DEMANDE D'INSCRIPTION MODIFICATIVE DES GROUPEMENTS D'INTÉRÊT ÉCONOMIQUE ET DES GROUPEMENTS EUROPÉENS D'INTÉRÊT ÉCONOMIQUE
Lors de la demande d'inscription modificative, les pièces devant être présentées sont celles demandées dans l'annexe précédente et établissant les changements ou adjonctions intervenus.
1. Renseignements relatifs à la personne
Lorsque le dépôt au greffe des actes modificatifs du groupement a été effectué avant la demande d'inscription modificative, copie du récépissé de dépôt. 1. 1. Identification des dirigeants. Pièces établissant les modifications de situations prévues à l'annexe précédente ou au 1 de l'annexe II.
2. Renseignements relatifs
au siège et à l'établissement
2. 1. Justificatif de la jouissance des locaux où est installé le siège par tout document établi au nom du groupement permettant de justifier la réalité de l'adresse déclarée
2. 2. Si le représentant légal use de la faculté d'installer le siège à son domicile pour une durée limitée, justificatif de son domicile par tout document établi à son nom permettant de justifier la réalité de l'adresse déclarée.
2. 3. Occupation de locaux en commun : si le siège du groupement est situé dans les locaux occupés en commun par une ou plusieurs entreprises : copie du contrat de domiciliation mentionné aux articles R. 123-167 et suivants et extrait du RCS ou du répertoire des métiers du domiciliataire, sauf si celui-ci est immatriculé dans le même greffe ou s'il est une personne morale française de droit public ou une association regroupant des personnes morales françaises de droit public.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
2. 4. Fonds de commerce acquis ou reçu par un groupement à objet commercial.
Par achat, licitation : copie de l'acte et attestation de parution dans un journal d'annonces légales ou copie de celui-ci.
Par voie de donation : copie de l'acte de donation.
Par apport : copie de l'acte et attestation de parution dans un journal d'annonces légales ou copie de celui-ci.
Par location-gérance : copie du contrat de location-gérance et attestation de parution dans un journal d'annonces légales ou copie de celui-ci.
Par gérance-mandat : copie du contrat de gérance-mandat et attestation de parution dans un journal d'annonces légales ou copie de celui-ci.
Dans le cadre d'un plan de cession, pour la gestion du fonds de commerce cédé : copie du jugement ordonnant un plan de cession.
2. 5. Transfert du siège ou d'un établissement.
2. 5. 1. Dans tous les cas pour le siège :
# justificatif de la jouissance des locaux où est installé le siège ou justificatif du domicile du représentant légal où est fixé le siège, par tout document établi au nom de la personne tenue à l'immatriculation ou de son représentant permettant de justifier la réalité de l'adresse déclarée :
# occupation de locaux en commun : si le siège du groupement est situé dans les locaux occupés en commun par une ou plusieurs entreprises, copie du contrat de domiciliation mentionné aux articles R. 123-167 et suivants et extrait du RCS ou du répertoire des métiers du domiciliataire, sauf si celui-ci est immatriculé dans le même greffe ou s'il est une personne morale française de droit public ou une association regroupant des personnes morales françaises de droit public.
2. 5. 2. Transfert dans le ressort d'un autre greffe.
S'il s'agit du transfert du siège : pièces prévues au 1. 1 de l'annexe V et copie du récépissé de dépôt au greffe du nouveau siège, des actes décidant le transfert du siège si la formalité n'est pas concomitante au dépôt.
S'il s'agit du transfert d'un établissement : pièces prévues au 1. 2 ou 2. 2 de l'annexe V.
2. 6. Immatriculation secondaire :
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
# extrait de l'immatriculation principale datant de moins de trois mois ;
# origine du fonds de commerce acquis ou reçu par le groupement à objet commercial :
# par achat, licitation, attribution par voie de partage : copie de l'acte enregistré et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ;
# par voie de donation : copie de l'acte de donation ;
# par dévolution successorale, sans partage ni licitation : copie de l'acte de notoriété ou de l'intitulé d'inventaire ;
# par location-gérance : pour le locataire-gérant, copie du contrat de location-gérance et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ;
# par gérance-mandat : pour le mandataire, copie du contrat de gérance-mandat et attestation de parution dans un journal d'annonces légales ou copie de celui-ci ;
# dans le cadre d'un plan de cession, pour la gestion du fonds de commerce cédé : copie du jugement ordonnant le plan de cession.
2. 7. Activité réglementée.
Copie de l'autorisation provisoire ou définitive du diplôme ou du titre conformément à l'article R. 123-95.
Article Annexe IX
DEMANDE D'IMMATRICULATION ET D'INSCRIPTION MODIFICATIVE DES AUTRES PERSONNES MORALES
1. Renseignements relatifs à la personne
1. 1. Etablissement public français. 1. 1. 1. Situation juridique. 1. 1. 1. 1. Immatriculation : # copie du Journal officiel mentionnant l'acte qui a autorisé sa création ou copie de l'acte ayant créé l'établissement ; # copie de la décision nommant les personnes chargées de le représenter ou de l'administrer. 1. 1. 1. 2. Inscription modificative. Copie du Journal officiel mentionnant l'acte qui en a modifié l'organisation ou son fonctionnement ou copie du ou des actes ayant décidé les modifications. 1. 1. 2. Personnes chargées de le représenter ou de l'administrer. Pièces identiques à
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celles exigées pour un dirigeant de société, à l'exception de l'attestation de non-condamnation. 1. 2. Représentation ou agence commerciale des Etats, collectivités ou établissements publics étrangers. Personnes chargées de le représenter : certificat de l'autorité diplomatique ou consulaire dont elles relèvent attestant la réalité et le caractère officiel de la représentation ou de l'agence indiquant les nom, prénoms et domicile des personnes physiques ayant le pouvoir général de l'engager. 1. 3. Autres personnes morales. 1. 3. 1. Titre établissant leur existence. 1. 3. 2. Pour les personnes ayant le pouvoir de les engager à titre habituel : # copie de la carte nationale d'identité ou du passeport en cours de validité accompagnée d'une déclaration de l'intéressé faisant connaître sa filiation si celle-ci ne figure pas sur le document fourni ; # ou document équivalent pour les étrangers, s'il y a lieu tout document justifiant la nationalité et sa traduction en langue française.
2. Renseignements relatifs à l'établissement
2. 1. Justificatif de la jouissance des locaux où est installé le siège par tout document établi au nom de la société permettant de justifier la réalité de l'adresse déclarée. 2. 2. Si le représentant légal use de la faculté d'installer le siège à son domicile pour une durée limitée, justificatif de son domicile par tout document établi à son nom permettant de justifier la réalité de l'adresse déclarée. 2. 3. Occupation de locaux en commun : si le siège social est situé dans les locaux occupés en commun par une ou plusieurs entreprises, copie du contrat de domiciliation mentionné aux articles R. 123-167 et suivants et extrait du RCS ou du répertoire des métiers du domiciliataire, sauf si celui-ci est immatriculé dans le même greffe ou s'il est une personne morale française de droit public ou une association regroupant des personnes morales françaises de droit public. 2. 4. Acquisition d'un fonds de commerce. Par achat, licitation : copie de l'acte Par voie de donation : copie de l'acte de donation. 2. 5. Activité réglementée. Copie de l'autorisation provisoire ou définitive du diplôme ou du titre conformément à l'article R. 123-95. 2. 6. Autres personnes morales. Pièces justifiant les renseignements exigés par la législation particulière.
Article Annexe X
DEMANDES DE RADIATION
1. Radiation des personnes physiques
En cas de décès de la personne immatriculée : extrait de l'acte de décès. Pour les ambulants ainsi que pour les forains n'ayant en France ni domicile ni résidence fixe : original de la carte de commerçant ambulant ou du titre de circulation sur lequel le greffe porte la mention de la radiation ainsi que sa date.
2. Radiation des personnes morales
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Si la formalité n'est pas concomitante au dépôt : récépissé du dépôt d'actes de nullité, de clôture des comptes de liquidation ou de fusion. En cas de demande de radiation d'une immatriculation secondaire par suite de fusion et de scission : extrait du registre du commerce et des sociétés du siège portant mention de l'opération. Le cas échéant, attestation de parution dans un journal d'annonces légales ou copie de celui-ci.
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Partie Arrêtés
LIVRE Ier : Du commerce en général
ANNEXE 1-2 (ANNEXE AUX ARTICLES A. 123-63 ET A. 134-2)
Article Annexe 1-2
Modèle d'attestation de délivrance de l'information donnée à son conjoint commun en biens sur les conséquences des dettes contractées dans l'exercice de sa profession sur les biens communs. Je soussigné (nom et prénom de la personne immatriculée) déclare sous ma responsabilité, conformément à l'article R. 123-121-1, avoir informé mon conjoint M. / Mme (rayer la mention inutile), avec lequel / laquelle je me suis marié (e) sans contrat de mariage (1) ou bien avec un contrat de mariage qui prévoit des biens communs aux époux, sur les conséquences des dettes contractées dans l'exercice de ma profession sur ces biens communs.
Fait à, le
(Signature de la personne immatriculée)
(1) La mention relative à l'absence de contrat de mariage ne signifie pas que le régime légal français est applicable .
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Partie Arrêtés
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique
TITRE Ier : Dispositions préliminaires
Section 1 : De la constitution de la société et de la modification de ses statuts
Section 2 : De la dissolution de la société
Section 3 : Des formalités de publicité
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Partie Arrêtés
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique
TITRE II : Dispositions particulières aux diverses sociétés commerciales
Chapitre Ier : Des sociétés en nom collectif
Chapitre II : Des sociétés en commandite simple
Chapitre III : Des sociétés à responsabilité limitée
Chapitre IV : Dispositions générales applicables aux sociétés par actions
Chapitre V : Des sociétés anonymes
Section 1 : De la constitution des sociétés anonymes
Section 2 : De la direction et de l'administration des sociétés anonymes
Section 3 : Des assemblées d'actionnaires
Article A225-1
S'agissant des rejets dans l'air, l'eau et le sol affectant gravement l'environnement, le rapport mentionné à l'article L. 225-102-1 renseigne, compte tenu de l'activité de la société, les éléments de la liste suivante : 1° Emissions dans l'air de gaz à effet de serre, de substances concourant à
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l'acidification, à l'eutrophisation ou à la pollution photochimique, de composés organiques persistants ; 2° Emissions dans l'eau et le sol de substances concourant à l'acidification ou à l'eutrophisation, de substances toxiques pour l'environnement aquatique ; 3° Emissions dans l'air et dans l'eau de métaux toxiques, de substances radioactives, de substances cancérigènes, mutagènes ou nuisibles pour la reproduction.
Section 4 : Des modifications du capital social et de l'actionnariat des salariés
Section 5 : Du contrôle des sociétés anonymes
Section 6 : De la transformation des sociétés anonymes
Section 7 : De la dissolution des sociétés anonymes
Section 8 : De la responsabilité civile
Section 9 : Des sociétés anonymes à participation ouvrière
Chapitre VI : Des sociétés en commandite par action
Chapitre VII : Des sociétés par actions simplifiées
Chapitre VIII : Des valeurs mobilières émises par les sociétés par actions
Chapitre IX : De la société européenne
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Partie Arrêtés
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique
TITRE III : Dispositions communes aux diverses sociétés commerciales
Chapitre Ier : Du capital variable
Chapitre II : Des comptes sociaux
Chapitre III : Des filiales, des participations et des sociétés contrôlées
Section 1 : Des notifications et des informations
Article A233-1
Le pourcentage prévu à l'article L. 233-8 est fixé à 5 %.
Section 2 : Des comptes consolidés
Section 3 : Des participations réciproques
Chapitre IV : De la procédure d'alerte
Chapitre V : Des nullités
Chapitre VI : De la fusion et de la scission
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Chapitre VII : De la liquidation
Chapitre VIII : Des injonctions de faire
Chapitre IX : De la location d'actions et de parts sociales
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Partie Arrêtés
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique
TITRE IV : Dispositions pénales
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Partie Arrêtés
LIVRE II : Des sociétés commerciales et des groupements d'intérêt économique
TITRE V : Des groupements d'intérêt économique
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Partie Arrêtés
LIVRE III : De certaines formes de ventes et des clauses d'exclusivité
TITRE Ier : Des liquidations, des ventes au déballage, des soldes et des ventes en magasins d'usine
Section 1 : Des liquidations
Article A310-1
La déclaration préalable de vente en liquidation, prévue à l'article L. 310-1, mentionne l'identité ou la dénomination sociale du vendeur, le nom, l'adresse et le numéro unique d'identification de l'établissement commercial concerné, ainsi que le motif, la date de début et la durée de la liquidation. Elle est signée par le vendeur ou par une personne ayant qualité pour le représenter. Cette déclaration est établie conformément au modèle figurant en annexe 3-1 au présent livre.
Article A310-2
La déclaration est accompagnée des documents suivants : 1° Toute pièce justifiant, selon le motif de la demande, de la perspective d'une cessation de commerce, d'une suspension saisonnière, d'un changement d'activité ou d'une modification substantielle des conditions d'exploitation et, notamment, en cas de prévision de travaux, le ou les devis correspondants ; 2° Un inventaire détaillé des marchandises concernées par l'opération de liquidation comportant au minimum les renseignements suivants : nature et dénomination précise des articles, quantités, prix de vente, prix d'achat moyen hors taxe. Les produits dont le prix de vente unitaire est inférieur à 5 € peuvent être décrits par lots homogènes ; 3° Le cas échéant, si la déclaration est faite par un mandataire, une copie de sa procuration.
Article A310-3
Le récépissé de déclaration prévu à l'article R. 310-3 mentionne l'identité ou la dénomination sociale du déclarant, le nom, l'adresse et le numéro unique d'identification de l'établissement commercial concerné par la liquidation, ainsi que le motif, la date de début et sa durée. Il est daté. Il est établi conformément au modèle figurant en annexe 3-2 au présent livre.
Article A310-4
L'information sur le lieu de vente est assurée par le déclarant durant toute la durée de l'opération de
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liquidation au moyen de l'affichage d'une copie du récépissé de déclaration délivrée par la préfecture qui est lisible de la voie publique. Pour les établissements pratiquant la vente par correspondance, les éléments d'information figurant à l'article A. 310-3 sont portés à la connaissance des consommateurs.
Article A310-5
Dans le cas d'un changement de date de l'opération de liquidation dans les conditions prévues par l'article R. 310-6, une copie de la lettre informant le préfet du report est affichée sur le lieu de vente à côté de la copie du récépissé de déclaration du dossier initial dans les conditions prévues à l'article A. 310-4. Pour les établissements pratiquant la vente à distance, la date de la lettre au préfet et les motifs du report sont portés à la connaissance des consommateurs.
Article A310-6
Toute publicité relative à une opération de liquidation mentionne la date du récépissé de déclaration ainsi que la nature des marchandises sur lesquelles porte l'opération si celle-ci ne concerne pas la totalité des produits de l'établissement.
Section 2 : Des ventes au déballage
Section 3 : Des soldes
Article A310-7
Les produits offerts ou disponibles à la vente au détail, de quelque façon que ce soit, sous forme de soldes tels que définis par l'article L. 310-3, sont signalés par une mention indiquant qu'il s'agit de « soldes ».
Article A310-8
Cette mention est effectuée dans des conditions de présentation identiques à celles prévues, pour la mention du prix, aux articles 4, 5, 6, 9, 10, 11 et 14 de l'arrêté du 3 décembre 1987 relatif à l'information du consommateur sur les prix.
Article A310-9
Lorsque l'opération de soldes concerne l'ensemble des produits disponibles dans le point de vente, une seule indication parfaitement lisible peut en informer le consommateur.
Section 4 : Des ventes en magasins ou dépôts d'usine
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Section 5 : Des sanctions
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Partie Arrêtés
LIVRE III : De certaines formes de ventes et des clauses d'exclusivité
TITRE II : Des ventes aux enchères publiques
Chapitre Ier : Des ventes volontaires de meubles aux enchères publiques
Section 1 : Dispositions générales
Sous-section 1 : Les sociétés de ventes volontaires de meubles aux enchères publiques
Paragraphe 1 : De l'agrément
Paragraphe 2 : De l'assurance et du cautionnement
Paragraphe 3 : Des qualifications requises
Article A321-1
Sont admis en dispense du diplôme national en droit sanctionnant un niveau de formation correspondant à deux années d'études supérieures requis pour diriger des ventes volontaires de meubles aux enchères publiques : 1° Tout diplôme sanctionnant une formation correspondant à deux années d'études après le baccalauréat dans des disciplines juridiques, économiques, commerciales et de gestion délivré par : a) Un établissement public à caractère scientifique, culturel et professionnel habilité à le délivrer ; b) Un établissement d'enseignement supérieur privé reconnu par l'Etat et autorisé à délivrer un diplôme visé par le ministre chargé de l'enseignement supérieur ; c) La faculté libre autonome et cogérée d'économie et de droit de Paris ; 2° Le diplôme de premier clerc de notaire.
Article A321-2
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Est admis en dispense de la licence en droit requise pour diriger des ventes volontaires de meubles aux enchères publiques tout diplôme sanctionnant un niveau de formation correspondant au moins à trois années d'études après le baccalauréat dans les disciplines juridiques, économiques, commerciales et de gestion délivré par : 1° Un établissement public à caractère scientifique, culturel et professionnel habilité à le délivrer ; 2° Un établissement d'enseignement supérieur privé reconnu par l'Etat et autorisé à délivrer un diplôme visé par le ministre chargé de l'enseignement supérieur ; 3° Un institut d'études politiques ; 4° La faculté libre autonome et cogérée d'économie et de droit de Paris.
Article A321-3
Sont admis en dispense du diplôme de fin de premier cycle d'arts et de la licence d'histoire de l'art, d'arts appliqués, d'archéologie ou d'arts plastiques requis pour diriger des ventes volontaires de meubles aux enchères publiques : 1° Le diplôme de premier cycle de l'Ecole du Louvre ; 2° Le diplôme d'archiviste paléographe délivré par l'Ecole nationale des chartes ; 3° Le diplôme de bi-licence droit - histoire de l'art et archéologie délivré par l'université Paris-I ; 4° Le diplôme de « spécialiste en biens et services culturels » délivré par l'Institut d'études supérieur des arts (IESA).
Article A321-4
L'examen d'aptitude prévu à l'article R. 321-19 a lieu au moins une fois par an. Les dates et lieux des épreuves sont fixés, après avis de la Chambre nationale des commissaires-priseurs judiciaires, par le conseil des ventes volontaires de meubles aux enchères publiques qui en assure une publicité suffisante deux mois au moins avant la date de la première épreuve, notamment par des insertions dans les revues professionnelles spécialisées et par un affichage dans les locaux du conseil des ventes volontaires de meubles aux enchères publiques et de la Chambre nationale des commissaires-priseurs judiciaires.
Article A321-5
Les candidatures sont adressées au conseil des ventes volontaires de meubles aux enchères publiques par lettre recommandée avec demande d'avis de réception au plus tard un mois avant la date de la première épreuve de la session. Le dossier de candidature comprend, avec, s'il y a lieu, leur traduction en français, les pièces suivantes : 1° Tous documents officiels justificatifs de l'identité et de la nationalité du candidat ; 2° Tous justificatifs permettant de vérifier que le candidat remplit les conditions prévues à l'article R. 321-19.
Article A321-6
Le Conseil des ventes volontaires de meubles aux enchères publiques arrête trois semaines avant la date de la première épreuve de chaque session la liste des candidats admis à subir les épreuves de l'examen d'aptitude. Des convocations individuelles mentionnant le jour, l'heure et le lieu des épreuves sont adressées à chaque candidat quinze jours au moins à l'avance.
Article A321-7
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Les épreuves de l'examen sont orales et se déroulent en séance publique. Le conseil des ventes volontaires de meubles aux enchères publiques assure le secrétariat du jury.L'examen dont le programme figure à l'annexe 3-3 au présent livre comprend trois interrogations portant respectivement sur : 1° Des matières juridiques, la réglementation professionnelle, ainsi que des matières économiques et comptables ; la note est affectée d'un coefficient 3 ; 2° La connaissance des arts et techniques, ainsi que l'identification et l'estimation des objets d'art ; la note est affectée d'un coefficient 4 ; 3° La pratique des ventes volontaires de meubles aux enchères publiques ; la note est affectée d'un coefficient 3. Chaque interrogation, notée sur 20, a une durée de vingt minutes et est précédée de vingt minutes de préparation. Les notes inférieures à 7 / 20 sont éliminatoires.
Article A321-8
L'admission est prononcée par le jury si la moyenne des notes obtenues par le candidat est égale ou supérieure à 10 sur 20. A l'issue des épreuves, le jury dresse la liste des candidats déclarés admis, laquelle est affichée dans les locaux du conseil des ventes volontaires de meubles aux enchères publiques et de la Chambre nationale des commissaires-priseurs judiciaires. Le conseil des ventes volontaires de meubles aux enchères publiques délivre à chaque candidat admis une attestation de réussite à l'examen d'aptitude.
Sous-paragraphe 1 : De l'examen d'accès au stage
Article A321-9
L'examen d'accès au stage prévu au 4° de l'article R. 321-18 et à l'article R. 321-22 a lieu au moins une fois par an. Les dates et lieux des épreuves sont fixés, après avis de la Chambre nationale des commissaires-priseurs judiciaires, par le conseil des ventes volontaires de meubles aux enchères publiques qui en assure une publicité suffisante deux mois au moins avant la date de la première épreuve, notamment par des insertions dans les revues professionnelles spécialisées et par un affichage dans les locaux du conseil des ventes volontaires de meubles aux enchères publiques et de la Chambre nationale des commissaires-priseurs judiciaires.
Article A321-10
Les candidatures sont adressées au conseil des ventes volontaires de meubles aux enchères publiques par lettre recommandée avec demande d'avis de réception au plus tard un mois avant la date de la première épreuve de la session. Le dossier de candidature comprend : 1° Une requête de l'intéressé ; 2° Tous documents officiels justificatifs de l'identité et de la nationalité du candidat ; 3° Une copie des diplômes prévus au 3° de l'article R. 321-18 ou la justification de leur dispense ; 4° Le cas échéant, la justification de la dispense des épreuves de l'examen d'accès au stage ; 5° L'indication de la langue vivante étrangère choisie pour l'épreuve d'admission.
Article A321-11
Le conseil des ventes volontaires de meubles aux enchères publiques arrête trois semaines avant la
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date de la première épreuve de chaque session la liste des candidats admis à subir les épreuves de l'examen d'accès au stage. Des convocations individuelles mentionnant le jour, l'heure et le lieu des épreuves sont adressées à chaque candidat au moins quinze jours à l'avance.
Article A321-12
L'examen comprend des épreuves écrites d'admissibilité et des épreuves orales d'admission portant sur le programme figurant à l'annexe 3-4 au présent livre. Le conseil des ventes volontaires de meubles aux enchères publiques assure le secrétariat du jury.
Article A321-13
Les épreuves écrites d'admissibilité comprennent : 1° Une épreuve théorique d'une durée de quatre heures portant sur des sujets juridiques, en rapport avec les activités de ventes publiques de meubles et dont la note est affectée d'un coefficient 3 ; 2° Une épreuve théorique d'une durée de quatre heures portant sur la connaissance des arts et techniques et dont la note est affectée d'un coefficient 3.
Article A321-14
Les candidats peuvent se servir des codes ou recueils de lois et décrets ne contenant aucune indication de doctrine ou de jurisprudence, sans autre note que des références à des textes législatifs ou réglementaires. Tout candidat ayant procuré ou utilisé des documents non autorisés est exclu de la salle et sa composition est annulée. Dans ce cas, le conseil des ventes volontaires de meubles aux enchères publiques peut interdire au candidat de se représenter aux épreuves de l'examen pour une durée ne pouvant excéder deux années.
Article A321-15
La correction des épreuves d'admissibilité est organisée de manière à préserver l'anonymat de chaque candidat. Chaque composition est examinée par deux correcteurs et reçoit une note de 0 à 20. Cette note est affectée du coefficient prévu pour l'épreuve correspondante. L'admissibilité est prononcée par le jury si la moyenne des notes obtenues par le candidat est égale ou supérieure à 10 sur 20. Le jury arrête, par ordre alphabétique, la liste des candidats déclarés admissibles. Celle-ci est affichée dans les locaux du conseil des ventes volontaires de meubles aux enchères publiques et de la Chambre nationale des commissaires-priseurs judiciaires. L'admissibilité n'est valable que pour la session au cours de laquelle celle-ci a été acquise.
Article A321-16
Nul ne peut se présenter aux épreuves d'admission s'il n'a été déclaré admissible par le jury. Les épreuves d'admission sont orales et se déroulent en séance publique. Elles comprennent : 1° Un exposé de dix minutes, après une préparation de trente minutes, sur une question tirée au sort par le candidat et portant sur l'histoire de l'art, suivi d'une discussion de vingt minutes avec le jury destinée à apprécier la culture générale du candidat ; la note est affectée d'un coefficient 4 ; 2° Une interrogation d'une durée de quinze minutes portant sur une matière juridique autre que celle qui a
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été traitée à l'écrit par le candidat ainsi que sur des matières économiques et comptables ; la note est affectée d'un coefficient 3 ; 3° Une interrogation d'une durée de quinze minutes portant sur une langue vivante étrangère choisie par le candidat lors du dépôt de son dossier parmi la liste figurant à l'annexe 3-4 au présent livre ; la note est affectée d'un coefficient 1.
Article A321-17
Les épreuves sont notées de 0 à 20. Chaque note est affectée du coefficient prévu pour l'épreuve correspondante. Les notes inférieures à 7/20 sont éliminatoires.
Article A321-18
L'admission est prononcée par le jury si la moyenne des notes obtenues par le candidat à l'ensemble des épreuves d'admissibilité et d'admission est égale ou supérieure à 10 sur 20.
Article A321-19
Le jury arrête la liste des candidats déclarés admis. Celle-ci est affichée dans les locaux du conseil des ventes volontaires de meubles aux enchères publiques et de la Chambre nationale des commissaires-priseurs judiciaires. Le conseil des ventes volontaires de meubles aux enchères publiques délivre l'attestation de réussite à l'examen d'accès au stage.
Sous-paragraphe 2 : Du stage
Paragraphe 4 : Des mesures d'information et de publicité
Sous-section 2 : Le conseil des ventes volontaires de meubles aux enchères publiques
Section 2 : De la libre prestation de services de l'activité de ventes volontaires de meubles aux enchères publiques par les ressortissants des Etats membres de la Communauté européenne et des Etats parties à l'accord sur l'Espace économique européen
Sous-section 1 : Des procédures de déclaration et d'information
Section 3 : De l'établissement en France des personnes habilitées à
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diriger des ventes volontaires de meubles aux enchères publiques dans un autre Etat membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen
Article A321-26
Le dossier mentionné à l'article R. 321-66 comprend les pièces suivantes :
1° La copie des documents justifiant de l'identité, de la nationalité et du domicile du demandeur ;
2° Les copies certifiées conformes des attestations de compétences, titres de formation ou titres de formation assimilée ou des documents justifiant des droits acquis obtenus par le demandeur donnant accès à l'activité de ventes volontaires de meubles aux enchères publiques ;
3° Pour les titulaires d'un diplôme, certificat ou titre délivré par un pays tiers et reconnu par un Etat membre de la Communauté européenne ou partie à l'accord sur l'Espace économique européen, une attestation émanant de l'autorité compétente de cet Etat membre ou partie, certifiant de la durée de l'exercice professionnel sur son territoire et des dates correspondantes ;
4° Une attestation de l'autorité compétente justifiant que le requérant a exercé à temps plein, au cours des dix dernières années, l'activité de ventes volontaires de meubles aux enchères publiques, et précisant les dates de cet exercice, si ni l'accès à cette activité ou son exercice, ni la formation y conduisant ne sont réglementés dans son Etat d'origine ;
5° Tout document en original ou en copie permettant d'apprécier si le demandeur remplit les conditions prévues à l'article R. 321-65 du code de commerce ainsi que le contenu détaillé du cycle d'études postsecondaires suivi avec succès et de la formation professionnelle initiale et continue reçue ;
6° Un document de l'autorité compétente de son Etat d'origine attestant qu'il n'a pas fait l'objet de condamnations pénales pour des faits contraires à l'honneur ou à la probité ni d'une sanction disciplinaire ou administrative de destitution, radiation, révocation, retrait d'agrément ou d'autorisation pour des faits de même nature dans la profession qu'il exerçait antérieurement, ou une attestation datant de moins de trois mois délivrée par l'autorité judiciaire ou administrative compétente et, le cas échéant, par un notaire ou un organisme professionnel, établissant que l'intéressé a déclaré sous serment ou solennellement, si un tel serment n'existe pas dans cet Etat, qu'il n'a pas fait l'objet de telles condamnations ou sanctions.
Le cas échéant, les pièces justificatives, sauf celles relatives à l'identité et à la nationalité du demandeur, doivent être accompagnées de leur traduction en langue française.A l'exception des documents mentionnés au 1° et au 5°, cette traduction est effectuée par un traducteur inscrit sur la liste nationale des experts judiciaires ou sur l'une des listes d'experts judiciaires dressées par les cours d'appel ou par un traducteur habilité à intervenir auprès des autorités judiciaires ou administratives d'un autre Etat membre de la Communauté européenne ou d'un Etat partie à l'accord sur l'Espace économique européen.
Article A321-27
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La décision du conseil des ventes volontaires de meubles aux enchères publiques prévue à l'article R. 321-66 précise, le cas échéant, les matières du programme de l'épreuve d'aptitude et la durée du stage d'adaptation proposés au requérant.
Article A321-28
L'épreuve d'aptitude prévue à l'article R. 321-67 a lieu au moins deux fois par an.
L'organisation matérielle de l'épreuve est confiée au conseil des ventes volontaires de meubles aux enchères publiques.
Article A321-29
Le conseil des ventes volontaires de meubles aux enchères publiques assure une publicité suffisante, quatre mois au moins à l'avance, de la date fixée pour l'épreuve, notamment par des insertions dans les revues professionnelles, par un affichage dans ses locaux et dans ceux de la Chambre nationale des commissaires-priseurs judiciaires et par une diffusion sur son site internet.
Article A321-30
Des convocations individuelles mentionnant le jour, l'heure et le lieu de l'épreuve sont adressées à chaque candidat, quinze jours au moins à l'avance par lettre recommandée avec demande d'avis de réception ou par tout autre moyen équivalent.
Article A321-31
L'épreuve d'aptitude, dont le programme figure à l'annexe 3-5 au présent livre, comprend au plus trois entretiens, d'une durée de vingt minutes chacun, portant respectivement sur des matières juridiques, la pratique des ventes volontaires de meubles aux enchères publiques et la réglementation professionnelle.
Article A321-32
Les entretiens se déroulent publiquement.
Chaque entretien est noté sur 20 et est précédé de trente minutes de préparation.
Le conseil des ventes volontaires de meubles aux enchères publiques assure le secrétariat du jury.
Article A321-33
L'admission est prononcée par le jury si la moyenne des notes obtenues par le candidat est égale ou supérieure à 10 sur 20.
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A l'issue de l'épreuve, le jury dresse la liste des candidats déclarés admis, laquelle est affichée dans les locaux du conseil des ventes volontaires de meubles aux enchères publiques et accessible sur son site internet.
Le conseil délivre à chaque candidat admis une attestation de réussite à l'épreuve d'aptitude.
Article A321-34
Le stage d'adaptation prévu à l'article R. 321-67 visant à compléter la formation professionnelle du demandeur comprend un enseignement pratique et, le cas échéant, un enseignement théorique en matière artistique, économique, comptable et juridique, dispensés sous le contrôle du conseil des ventes volontaires de meubles aux enchères publiques et selon les modalités qu'il détermine.
Le stage d'adaptation s'effectue en France et à plein temps.A titre exceptionnel, il peut être fractionné en périodes mensuelles.
La convention de stage d'adaptation ne peut contenir de dispositions moins avantageuses, notamment en matière de gratification, que celles applicables aux personnes admises à suivre la deuxième année du stage prévu à l'article R. 321-18 (5°).
Article A321-35
Les travaux de pratique professionnelle sont effectués auprès d'une société de ventes volontaires de meubles aux enchères publiques. Le conseil des ventes volontaires de meubles aux enchères publiques procède à l'affectation du stagiaire en tenant compte de ses choix. En aucun cas, le stagiaire ne peut être affecté dans une société de ventes volontaires dans laquelle il aurait directement ou indirectement des intérêts financiers ou un lien de quelque nature que ce soit avec l'un des dirigeants, salariés ou associés.
Article A321-36
Les attributions de maître de stage sont remplies par une personne habilitée à diriger des ventes volontaires de meubles aux enchères publiques.
Lorsque la durée du stage excède une année, le conseil des ventes volontaires de meubles aux enchères publiques s'assure à l'issue d'une première période de douze mois puis tous les six mois du bon déroulement du stage et de l'acquisition de connaissances par le stagiaire.A cet effet, il recueille les observations du maître de stage et organise un entretien avec le stagiaire destiné à évaluer ses connaissances pratiques.
A l'issue du stage, le maître de stage adresse au conseil un rapport de stage établi conformément au modèle figurant en annexe 3-5 au présent livre.
Le conseil reconnaît la qualification du demandeur lorsque les résultats de l'évaluation du stage sont positifs. Il délivre au stagiaire un certificat de bon accomplissement du stage d'adaptation.
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Dans le cas contraire, le conseil peut, après avoir entendu le stagiaire, prolonger la durée du stage d'adaptation dans les limites de l'article R. 321-67.
Section 4 : Des experts agréés par le conseil des ventes volontaires de meubles aux enchères publiques
Section 5 : Dispositions diverses
Chapitre II : Des autres ventes aux enchères
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Partie Arrêtés
LIVRE III : De certaines formes de ventes et des clauses d'exclusivité
TITRE III : Des clauses d'exclusivité
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Partie Arrêtés
LIVRE III : De certaines formes de ventes et des clauses d'exclusivité
ANNEXE 3-1 (ANNEXE À L'ARTICLE A. 310-1)
Article Annexe 3-1
MODÈLE DE DÉCLARATION PRÉALABLE
À UNE VENTE EN LIQUIDATION 1. Déclarant
Nom, prénoms : Nom d'usage (le cas échéant) : Pour les personnes morales, nom et prénom du représentant légal ou statutaire : Adresse : Complément d'adresse : Code postal : Localité de destination : Téléphone :
2. Etablissement commercial concerné par l'opération de liquidation
Nom de l'enseigne : Adresse : Code postal : Complément d'adresse : Nature de l'activité : N° d'immatriculation SIRET de l'établissement :
3. Objet de la déclaration
Motif générateur (cocher) : Cessation d'activité. Suspension saisonnière d'activité. Changement d'activité. Modification substantielle des conditions d'exploitation. Nature des marchandises liquidées : Date de début de la liquidation : Durée :
4. Pièces jointes à la déclaration (1)
Inventaire des marchandises concerné par l'opération de liquidation conforme à l'article R. 310-2 du code de commerce. Extrait récent du RCS.
5. Engagement du déclarant
Je soussigné (e), auteur de la présente déclaration, (2), certifie exacts les renseignements qui y sont contenus et m'engage à respecter les dispositions des articles L. 310-1, R. 310-1 et suivants, A. 310-1 et suivants du code de commerce.
Date et signature
Toute fausse déclaration préalable de vente en liquidation constitue un faux et usage de faux passible des peines d'amende et d'emprisonnement prévues aux articles 441-1 et suivants du code pénal.
6. Cadre réservé à l'administration
Date d'arrivée : N° d'enregistrement : Date limite de notification de la liste des pièces à fournir :
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Date d'arrivée du dossier complet : Date de délivrance et numéro de récépissé de déclaration : Observations :
(1) Toute pièce justifiant, selon le motif de la demande, de la perspective d'une cessation de commerce, d'une suspension saisonnière, d'un changement d'activité ou d'une modification substantielle des conditions d'exploitation et, notamment, en cas de prévision de travaux, le (s) devis correspondant (s).
(2) Nom et prénom du déclarant.
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Partie Arrêtés
LIVRE III : De certaines formes de ventes et des clauses d'exclusivité
ANNEXE 3-2 (ANNEXE À L'ARTICLE A. 310-3)
Article Annexe 3-2
Préfecture du département de :
VENTE EN LIQUIDATION
(Art.L. 310-1, R. 310-1 et suivants du code de commerce) Récépissé de déclaration n°
Date de réception du dossier complet : Nom ou dénomination sociale du déclarant : Nom commercial de l'établissement : Adresse : Numéro unique d'identification de l'établissement commercial (SIRET) : Nature de l'activité : Date de début de la liquidation : Durée : Motif : Date : Visa :
Article L. 310-1 du code de commerce
Sont considérées comme liquidations les ventes accompagnées ou précédées de publicité et annoncées comme tendant, par une réduction de prix, à l'écoulement accéléré de la totalité ou d'une partie des marchandises d'un établissement commercial à la suite d'une décision, quelle qu'en soit la cause, de cessation, de suspension saisonnière ou de changement d'activité, ou de modification substantielle des conditions d'exploitation. Les liquidations sont soumises à déclaration préalable auprès de l'autorité administrative dont relève le lieu de la liquidation. Cette déclaration comporte la cause et la durée de la liquidation qui ne peut excéder deux mois. Elle est accompagnée d'un inventaire des marchandises à liquider. Lorsque l'événement motivant la liquidation n'est pas intervenu au plus tard dans les six mois qui suivent la déclaration, le déclarant est tenu d'en informer l'autorité administrative compétente. Pendant la durée de la liquidation, il est interdit de proposer à la vente d'autres marchandises que celles figurant à l'inventaire sur le fondement duquel la déclaration préalable a été déposée.
Article L. 310-5 du code de commerce (extrait)
Est puni d'une amende de 15 000 € : 1° Le fait de procéder à une liquidation sans la déclaration préalable mentionnée à l'article L. 310-1 ou en méconnaissance des conditions prévues à cet article [...].
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Partie Arrêtés
LIVRE III : De certaines formes de ventes et des clauses d'exclusivité
ANNEXE 3-3 (ANNEXE À L'ARTICLE A. 321-7)
Article Annexe 3-3
Epreuves juridiques, réglementation
professionnelle, économie et comptabilité
Matières juridiques : Saisies mobilières. Le droit de la vente de meubles aux enchères publiques : # ventes volontaires et judiciaires : notions et distinctions ; # les textes applicables ; # la fiscalité ; # le droit de suite ; # l'intervention de l'Etat : droit de préemption ; # les importations et exportations des œuvres d'art ; # le trafic illicite des œuvres d'art. Réglementation professionnelle : Statut des sociétés de ventes volontaires de meubles aux enchères publiques et des personnes habilitées à diriger des ventes volontaires ; Organisation et attributions du conseil des ventes volontaires de meubles aux enchères publiques ; Déontologie et discipline ; Responsabilité civile professionnelle. Matières économiques et comptables : Le fonctionnement des marchés : # la délimitation du marché pertinent ; # la fonction d'offre ; # la fonction de demande ; # l'équilibre du marché en concurrence. Les marchés imparfaits : # les marchés de monopole ; # les marchés d'oligopole ; # le rôle des asymétries d'informations ; # les marchés d'enchères. Les stratégies de concurrence : # la tentation de l'entente ; # les stratégies de différenciation ; # les stratégies d'exclusion. Comptabilité et finance : # principes comptables ; # notion d'amortissement et de provisions. Compréhension des principaux documents comptables : # bilan ; # compte de résultat ; # tableau de flux de trésorerie. Analyse des comptes à travers les principaux ratios : # performance économique ; # performance financière ; # délais de stockage et de paiement clients et fournisseurs. Comptabilité de gestion : # objectifs du calcul des coûts. Notion de coût : # coût direct/coût indirect ; # coût variable/coût fixe. Détermination du seuil de rentabilité : # méthodes de coûts partiels ; # méthode du coût complet (cas simple de répartition des charges indirectes).
Connaissance des arts et techniques
Histoire et technique : # des meubles et des sièges ; # de la peinture, des estampes et des dessins ; # de la gravure ; # de la sculpture ; # de la céramique ; # de l'orfèvrerie et de la bijouterie ; # des livres, manuscrits et autographes ; # des tapis et tapisseries ; # des armes de collection et souvenirs
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historiques ; # des monnaies ; # de l'archéologie. # des arts d'Afrique, d'Amériques, d'Asie, d'Europe et d'Océanie. Marques et poinçons, titres et alliages. Connaissance des collections des musées. Histoire des collections publiques et privées ; évolution du marché de l'art. Pratique particulière : Spécificité du marché de l'art ; Identification et estimation des objets d'art.
Pratique des ventes volontaires de meubles aux enchères publiques
La pratique des ventes aux enchères publiques de meubles : # préparation des ventes ; # direction des ventes et incidents ; # rédaction des actes et tenue des documents. La pratique : # des estimations et prisées ; # des inventaires ; # des expertises ; # des partages. Pratiques particulières : Inventaire, estimation et vente du matériel industriel, commercial et agricole, des stocks des entreprises et des véhicules.
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Partie Arrêtés
LIVRE III : De certaines formes de ventes et des clauses d'exclusivité
ANNEXE 3-4 (ANNEXE AUX ARTICLES A. 321-12 ET A. 321-16)
Article Annexe 3-4
Epreuves juridiques
et matières économiques et comptables
Droit civil : Notions générales sur : # les biens : la classification des biens, les meubles, les modes d'acquisition de la propriété, la possession, l'usufruit ; # les obligations : sources, preuve, effets, extinction ; # la responsabilité civile ; # le contrat : classification, formation et effets ; # les contrats spéciaux : la vente (réglementation générale et réglementation particulière des ventes de meubles aux enchères publiques), le dépôt, le séquestre, le mandat, le crédit-bail et la location-vente ; # les sûretés : le cautionnement, le gage, les privilèges mobiliers ; # la prescription ; # les personnes ; # la famille : le mariage, le divorce, la séparation de corps, la filiation, les régimes matrimoniaux ; # les successions et les libéralités. Droit commercial : Notions générales sur : # les moyens de paiement et de crédit ; # le gage commercial ; # le nantissement de l'outillage et du matériel d'équipement ; # le fonds de commerce : éléments constitutifs, nantissement, vente ; # les sociétés commerciales. Droit de la vente de meubles aux enchères publiques : Ventes volontaires et judiciaires : notions et distinctions ; textes applicables. Fiscalités des ventes ; Droit de suite ; Les interventions de l'Etat : droit de préemption et classement des œuvres dans la catégorie des trésors nationaux ; Les importations et exportations d'œuvres d'art ; Le trafic illicite des œuvres d'art. Statut des sociétés de ventes volontaires de meubles aux enchères publiques et des personnes habilitées à diriger des ventes volontaires. Organisation et attributions du conseil des ventes volontaires de meubles aux enchères publiques. Economie et comptabilité : Le fonctionnement des marchés : # la délimitation du marché pertinent ; # la fonction d'offre ; # la fonction de demande ; # l'équilibre du marché en concurrence. Les marchés imparfaits : # les marchés de monopole ; # les marchés d'oligopole ; # le rôle des asymétries d'informations ; # les marchés d'enchères. Les stratégies de concurrence : # la tentation de l'entente ; # les stratégies de différenciation ; # les stratégies d'exclusion. Comptabilité et finance : # principes comptables ; # notion d'amortissement et de provisions. Compréhension des principaux documents comptables : # bilan ; # compte de résultat ; # tableau de flux de trésorerie. Analyse des comptes à travers les principaux ratios : # performance économique ; # performance financière ; # délais de stockage et de paiement clients et fournisseurs. Comptabilité de gestion : # objectifs du calcul des coûts. Notion de coût : # coût direct/coût indirect ; # coût variable/coût fixe. Détermination du seuil de rentabilité # méthodes de coûts partiels ; # méthode du coût complet (cas simple de répartition des charges indirectes).
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Epreuve arts et techniques
Histoire générale de l'art : Notions générales sur l'histoire des civilisations et sur l'évolution des idées. Les principaux courants artistiques du Moyen Age à l'époque contemporaine. Connaissance des arts et techniques : Histoire et technique : # des meubles et des sièges ; # de la peinture, des estampes et des dessins ; # de la gravure ; # de la sculpture ; # de la céramique ; # de l'orfèvrerie et de la bijouterie ; # des livres, manuscrits et autographes ; # des tapis et tapisseries ; # des armes de collection et souvenirs historiques ; # des monnaies ; # de l'archéologie ; # des arts d'Afrique, d'Amériques, d'Asie, d'Europe et d'Océanie. Marques et poinçons, titres et alliages. Connaissance des collections des musées. Histoire des collections publiques et privées ; évolution du marché de l'art.
Langues vivantes
Allemand. Anglais. Espagnol. Italien.
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Partie Arrêtés
LIVRE III : De certaines formes de ventes et des clauses d'exclusivité
ANNEXE 3-5 (ANNEXE À L'ARTICLE A. 321-23)
Article Annexe 3-5
Epreuve d'aptitude prévue à l'article R. 321-67
Matières juridiques
Ventes volontaires et judiciaires : notions et distinctions ; textes applicables.
La fiscalité.
Le droit de suite.
L'intervention de l'Etat : droit de préemption.
Les importations et exportations des œuvres d'art.
Le trafic illicite des œuvres d'art.
Pratique des ventes volontaires
de meubles aux enchères publiques
La pratique des ventes aux enchères publiques de meubles :
-préparation des ventes ;
-direction des ventes et incidents ;
-rédaction des actes et tenue des documents.
La pratique :
-des estimations et prisées ;
-des inventaires ;
-des expertises ;
-des partages.
Pratiques particulières :
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-spécificités du marché de l'art : identification et estimation des objets d'art ;
-inventaire, estimation et vente du matériel industriel, commercial et agricole ; des stocks des entreprises ; des véhicules.
Réglementation professionnelle
Statut des sociétés de ventes volontaires de meubles aux enchères publiques et des personnes habilitées à diriger des ventes volontaires.
Organisation et attributions du conseil des ventes volontaires de meubles aux enchères publiques.
Déontologie et discipline.
Responsabilité civile professionnelle.
Annexe à l'article A. 321-36
Stage d'adaptation prévu à l'article R. 321-67
Fiche d'évaluation du stage d'adaptation
à remplir par le maître de stage
Dénomination sociale de la société de ventes volontaires et adresse :
Nom et prénom du dirigeant de la société de ventes volontaires :
Nom et prénom de la personne habilitée à diriger des ventes volontaires-maître de stage :
Nom, prénom et adresse du stagiaire :
Durée du stage : du au
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Cocher les cases correspondantes.
APPRECIATIONS COMPLEMENTAIRES DU MAITRE DE STAGE
A leSignature
OBSERVATIONS DU STAGIAIRE
A leSignature
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Partie Arrêtés
LIVRE IV : De la liberté des prix et de la concurrence
TITRE Ier : Dispositions générales
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Partie Arrêtés
LIVRE IV : De la liberté des prix et de la concurrence
TITRE II : Des pratiques anticoncurrentielles
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Partie Arrêtés
LIVRE IV : De la liberté des prix et de la concurrence
TITRE III : De la concentration économique
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Partie Arrêtés
LIVRE IV : De la liberté des prix et de la concurrence
TITRE IV : De la transparence, des pratiques restrictives de concurrence et d'autres pratiques prohibées
Chapitre Ier : De la transparence
Article A441-1
Toute personne vendant des produits ou fournissant des services, liée par un accord de franchise à un franchiseur, informe le consommateur de sa qualité d'entreprise indépendante, de manière lisible et visible, sur l'ensemble des documents d'information, notamment de nature publicitaire, ainsi qu'à l'intérieur et à l'extérieur du lieu de vente.
Chapitre II : Des pratiques restrictives de concurrence
Chapitre III : Autres pratiques prohibées
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Partie Arrêtés
LIVRE IV : De la liberté des prix et de la concurrence
TITRE V : Des pouvoirs d'enquête
Article A450-1
Les fonctionnaires de catégorie A et de catégorie B placés sous l'autorité du directeur général de la concurrence, de la consommation et de la répression des fraudes sont habilités, en application de l'article L. 450-1, à procéder aux enquêtes dans les conditions prévues au présent livre.
Article A450-2
Toutefois, seuls les fonctionnaires de catégorie A mentionnés à l'article A. 450-1 sont habilités à procéder aux visites et aux saisies prévues par l'article L. 450-4 ; ils peuvent être assistés, lors des opérations, par un ou plusieurs fonctionnaires de catégorie B désignés parmi ceux définis à l'article A. 450-1.
Article A450-3
Les fonctionnaires de catégorie A mentionnés à l'article A. 450-1 sont habilités à procéder aux visites et saisies pour l'application de l'article L. 470-6.
Article A450-4
Les fonctionnaires de catégorie C placés sous l'autorité du directeur général de la concurrence, de la consommation et de la répression des fraudes sont habilités pour la recherche et la constatation des seules infractions passibles de peines contraventionnelles ; pour les autres infractions, ils assistent les fonctionnaires mentionnés à l'article A. 450-1.
Article A450-5
Les fonctionnaires habilités en application du présent livre agissent soit dans l'ensemble du département où ils exercent leurs fonctions, soit, lorsqu'il est plus étendu, dans le ressort territorial du service auquel ils sont affectés.
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Partie Arrêtés
LIVRE IV : De la liberté des prix et de la concurrence
TITRE VI : Du Conseil de la concurrence
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Partie Arrêtés
LIVRE IV : De la liberté des prix et de la concurrence
TITRE VII : Dispositions diverses
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Partie Arrêtés
LIVRE VI : Des difficultés des entreprises
TITRE Ier : De la prévention des difficultés des entreprises
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Partie Arrêtés
LIVRE VI : Des difficultés des entreprises
TITRE II : De la sauvegarde
Chapitre Ier : De l'ouverture de la procédure
Chapitre II : De l'entreprise au cours de la période d'observation
Chapitre III : De l'élaboration du bilan économique, social et environnemental
Article A623-1
Le bilan environnemental prévu à l'article L. 623-1 est établi selon les rubriques fixées à l'annexe 6-1 au présent livre.
Chapitre IV : De la détermination du patrimoine du débiteur
Chapitre V : Du règlement des créances résultant du contrat de travail
Chapitre VI : Du plan de sauvegarde
Chapitre VII : Dispositions particulières en l'absence d'administrateur judiciaire
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Partie Arrêtés
LIVRE VI : Des difficultés des entreprises
TITRE III : Du redressement judiciaire
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Partie Arrêtés
LIVRE VI : Des difficultés des entreprises
TITRE IV : De la liquidation judiciaire
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Partie Arrêtés
LIVRE VI : Des difficultés des entreprises
TITRE V : Des responsabilités et des sanctions
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Partie Arrêtés
LIVRE VI : Des difficultés des entreprises
TITRE VI : Des dispositions générales de procédure
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Partie Arrêtés
LIVRE VI : Des difficultés des entreprises
TITRE VII : Dispositions dérogatoires particulières aux départements de la Moselle, du Bas-Rhin et du Haut-Rhin
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Partie Arrêtés
LIVRE VI : Des difficultés des entreprises
ANNEXE 6-1 (ANNEXE À L'ARTICLE A. 623-1)
Article Annexe 6-1
I. # Bilan environnementalétabli par le débiteur
Nom de l'exploitant : Dénomination sociale : Nom de l'administrateur judiciaire :
1. Identification du site
Commune : Département : Désignation usuelle du site : Adresse : Superficie approximative : m²Activité : Etablissement soumis à la législation installations classées :A déclarationA autorisationA directive Seveso Rubriques de la nomenclature : Joindre une copie des arrêtés préfectoraux.Joindre une copie des études environnementales ou documents de sécurité déjà réalisés.
2. Description du site
Schéma d'implantation sur le site, photographie(s) :
Bâtiments : nombre :
(1) Atelier de fabrication, atelier de maintenance, bâtiment administratif, installations de production d'énergie (charbon, gaz...), production d'utilités (eau, air, vapeur...), laboratoires d'analyses, ateliers de stockage, de traitements d'effluents...
Produits dangereux (ou susceptibles de l'être) présents sur le site : Type de produit (4).
Solide ou liquide.
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Conditionnement (5).
Etat du conditionnement (6).
Quantité : kg ou m³.
Risques particuliers (7).
(4) Reporter les informations sur les étiquettes, à défaut indiquer absence d'étiquette ; classification selon l'étiquetage normalisé : T+ : très toxique ; T : toxique ; Xn : nocif ; Xi : irritant ; O : comburant.
3. Occupation du site Conditions d'accès au site :
Site non clôturé, ou clôture en mauvais état
Site clôturé
Site surveillé
Populations présentes sur le site :
Aucune présence
Indices d'intrusion ou de squat
Présence régulière de personnes
Préciser lesquelles : 4. Environnement du site Zone agricole/forestière
Zone naturelle
Zone industrielle
Zone commerciale
Zone d'habitation :
# urbaine
# péri-urbaine
# dispersée
Etablissements sensibles : proximité d'établissements scolaires ou lieux fréquentés par des jeunes enfants :
Oui/Non # Distance : m 5. Pollution(s) potentielle(s) Sol :
Indices visuels de pollution du sol :
Oui/Non # Préciser lesquels :
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Air :
Présence d'odeurs : Oui/Non
Présence de produits facilement dispersables (ex. : poudres) : Oui/Non
Préciser lesquels :
Eaux superficielles :
Présence d'un cours d'eau à proximité :
Oui/Non # Distance : m
Nom du cours d'eau :
Situation en zone d'inondation potentielle : Oui/Non
Eaux souterraines :
Présence de puits sur le site ou à proximité :
Oui/Non # Distance : m
Utilisation sensible des eaux souterraines (ex. : captage d'alimentation en eau potable, puits agricoles) :
Oui/Non # Nature :
Distance du captage le plus proche : 6. Mesures d'urgence déjà prises Restrictions d'accès au site, à certains bâtiments (clôture...)
Affichage du danger potentiel
Enlèvement des produits/déchets dangereux
Mise à l'abri des produits/déchets dangereux
Comblement de vides
Autres/préciser : 7. Autres remarques II. # Bilan environnemental
établi par un technicien Nom de l'exploitant :
Dénomination sociale :
Nom de l'administrateur judiciaire :
Nom du technicien ayant réalisé le bilan (le cas échéant) :
Date de la visite (le cas échéant) : --/--/-- 1. Identification du site Commune : Département :
Désignation usuelle du site :
Adresse :
Superficie approximative : m²
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Activité :
Etablissement soumis à la législation installations classées :
A déclaration
A autorisation
A directive Seveso
Rubriques de la nomenclature :
Joindre une copie des arrêtés préfectoraux.
Joindre une copie des études environnementales ou documents de sécurité déjà réalisées.
En situation irrégulière (1)
Préciser pour quelles raisons : (1) Il s'agit de vérifier en priorité que les activités présentes sur le site ont bien fait l'objet de déclaration ou de demande d'autorisation auprès des services préfectoraux tel que prévu dans la réglementation. 2. Description du site Schéma d'implantation sur le site, photographie(s) : Bâtiments : nombre :
(2) En relation avec les risques potentiels :Dégradé : Oui/Non.Si oui, préciser le niveau : F(aible), M(oyen), E(levé).(3) Facile/difficile.
Produits dangereux (ou susceptibles de l'être) présents sur le site :
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(5) Fûts, containers, bacs, caisses, bennes, en vrac ; préciser à l'abri ou à l'extérieur.(6) Fûts ouverts ou fermés, fuyards, corrodés, éventrés.(7) Matière toxique, inflammable, explosible ou radioactive.
3. Occupation du site Conditions d'accès au site : Site non clôturé, ou clôture en mauvais état Site clôturé Site surveillé Populations présentes sur le site : Aucune présence Indices d'intrusion ou de squat Présence régulière de personnes Préciser lesquelles : 4. Environnement du site Zone agricole/forestière Zone naturelle Zone industrielle Zone commerciale Zone d'habitation : - urbaine - péri-urbaine - dispersée Etablissements sensibles : proximité d'établissements scolaires ou lieux fréquentés par des jeunes enfants : Oui/Non - Distance : m 5. Pollution(s) potentielle(s) Sol : Indices visuels de pollution du sol : Oui/Non - Préciser lesquels : Air : Présence d'odeurs : Oui/Non Présence de produits facilement dispersables (ex. poudres) : Oui/Non Préciser lesquels : Eaux superficielles : Présence d'un cours d'eau à proximité : Oui/Non - Distance : m Nom du cours d'eau : Situation en zone d'inondation potentielle : Oui/Non Eaux souterraines : Présence de puits sur le site ou à proximité : Oui/Non - Distance : m Utilisation sensible des eaux souterraines (ex. : captage d'alimentation en eau potable, puits agricoles) : Oui/Non - Nature : Distance du captage le plus proche : m 6. Mesures d'urgence déjà prises Restrictions d'accès au site, à certains bâtiments (clôture...) Affichage du danger potentiel Enlèvement des produits/déchets dangereux Mise à l'abri des produits/déchets dangereux Enlèvement de transformateurs contenant du PCB Evacuation des sources radioactives Comblement de vides Autres/préciser : 7. Mesures d'urgence prévues ou à prendre Délai Restrictions d'accès au site, à certains bâtiments (clôture...) ...... Affichage du danger potentiel ...... Enlèvement des produits/déchets dangereux ...... Mise à l'abri des produits/déchets dangereux ...... Enlèvement des transformateurs contenant du PCB ...... Evacuation des sources radioactives ...... Comblement de vides ..... Autres/préciser ..... 8. Surveillance de l'impact Des analyses ont-elles été réalisées : - sur les eaux souterraines : Oui/Non - sur les eaux superficielles : Oui/Non - sur les sols : Oui/Non - sur d'autres milieux : Oui/Non Un impact a-t-il été constaté : Oui/Non Si oui, préciser : 9. Autres remarques
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Partie Arrêtés
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce
TITRE Ier : Du réseau des chambres de commerce et d'industrie
Chapitre Ier : De l'organisation et des missions du réseau des chambres de commerce et d'industrie
Section 1 : Des chambres de commerce et d'industrie
Sous-section 1 : Dispositions générales
Article A711-1
La commission paritaire prévue à l'article 1er de la loi n° 52-1311 du 10 décembre 1952 relative à l'établissement obligatoire d'un statut du personnel administratif des chambres d'agriculture, des chambres de commerce et des chambres de métiers et chargée d'établir le statut du personnel administratif des chambres de commerce et d'industrie est composée comme suit :1° Un représentant du ministre chargé de leur tutelle, président de la commission ;2° Six présidents de chambres de commerce et d'industrie désignés par le bureau de l'assemblée de leurs présidents dont :a) Le président de cette assemblée ;b) Trois présidents de chambre de commerce et d'industrie gérant des services publics ;c) Deux présidents de chambres de commerce et d'industrie qui ne gèrent aucun service public ;3° Six représentants du personnel des chambres de commerce et d'industrie désignés par les organisations syndicales les plus représentatives et choisis dans les catégories suivantes, à raison de :a) Trois pour les cadres dont un secrétaire général au moins ;b) Trois pour le personnel d'exécution.L'assemblée des présidents et les organisations syndicales désignent également des membres suppléants appelés à remplacer, le cas échéant, les membres titulaires.La désignation des délégués à la commission, titulaires et suppléants, est approuvée par le ministre chargé de leur tutelle.Le secrétariat de la commission paritaire est assuré par la direction chargée de la tutelle des chambres de commerce et d'industrie.Le ministre chargé de leur tutelle peut convoquer aux réunions de la commission paritaire, à titre consultatif, des personnalités spécialisées dans certaines questions techniques ou administratives, notamment pour ce qui concerne l'application du statut au personnel des chambres de commerce et d'industrie des départements d'outre-mer.
Article A711-2
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La commission paritaire, constituée ainsi qu'il est précisé à l'article A. 711-1, fixe les règles générales d'un statut applicable à l'ensemble du personnel des chambres de commerce et d'industrie. Ce statut est approuvé par décision du ministre chargé de leur tutelle. Il sert de base à l'élaboration par chaque chambre de commerce et d'industrie du règlement particulier applicable à son personnel. Celui-ci est établi en accord avec les délégués du personnel de la chambre de commerce et d'industrie ; il est soumis à l'approbation de l'autorité de tutelle compétente. La commission chargée de l'établir est présidée par l'autorité de tutelle compétente ou par son représentant.
Sous-section 2 : Du fonctionnement
Article A711-3
Le membre d'une chambre de commerce et d'industrie qui met fin à son mandat adresse sa démission à l'autorité de tutelle. La démission de l'intéressé devient définitive à la date de son acceptation écrite par l'autorité de tutelle ou, à défaut, un mois à compter de la date d'envoi de la démission à celle-ci, constatée par tout moyen permettant d'attester de la réception. L'autorité de tutelle informe le président de la chambre de commerce et d'industrie de cette démission.
Sous-section 3 : De la délégation des chambres de commerce et d'industrie
Sous-section 4 : Des groupements interconsulaires
Section 2 : Des chambres régionales de commerce et d'industrie
Section 3 : De l'assemblée des chambres françaises de commerce et d'industrie
Section 4 : Dispositions communes
Article A711-4
En application de l'article R.711-74-1, le seuil en deçà duquel l'approbation de l'autorité de tutelle mentionnée à l'article R.712-2 n'est pas requise est fixé à 100 000 € par opération ou à 30 % du marché en matière de marchés de travaux publics.
Chapitre II : De l'administration des établissements du réseau des
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chambres de commerce et d'industrie
Article A712-1
En application de l'article R. 712-1, les frais admis à remboursement sur justificatifs sont les frais de transport, d'hébergement et de restauration engagés dans le cadre de leur mandat par les membres élus des chambres de commerce et d'industrie.
Article A712-2
L'indemnité mensuelle globale de frais de mandat que l'assemblée générale de chaque chambre de commerce et d'industrie (CCI) peut attribuer aux membres de son bureau est fixée en fonction des deux critères prévus à l'article R.712-1 et sans préjudice du maintien des trois catégories de chambres prévues par l'article R.711-59, dans les limites du barème correspondant, selon le cas, à l'une des catégories ou sous-catégories suivantes : Catégories ou sous-catégories, nombre de ressortissants et points d'indice : 1, 1. 1 : moins de 5 000, 300. 1, 1. 2 : de 5 000 à 9 999, 450. 2 : de 10 000 à 29 999, 600. 3, 3. 1 : de 30 000 à 99 999, 750. 3, 3. 2 : 100 000 ou plus, 900.
Article A712-3
Pour l'application du barème fixé à l'article A. 712-2, les délégations départementales des chambres de commerce et d'industrie interdépartementales sont assimilées à la sous-catégorie 1. 1, les chambres régionales de commerce et d'industrie à la catégorie 2 et l'assemblée des chambres françaises de commerce et d'industrie à la sous-catégorie 3. 2.
Article A712-4
L'indemnité votée par l'assemblée générale de la compagnie consulaire est normalement dévolue au président.Toutefois, le bureau peut décider que tout ou partie de cette indemnité est dévolue à un ou plusieurs autres de ses membres. Dans ce cas, l'assemblée générale de la compagnie consulaire peut majorer l'indemnité au maximum d'une somme équivalant à 150 points d'indice, quel que soit le nombre des bénéficiaires.
Article A712-5
Les indemnités prévues au titre d'une délégation départementale, d'une chambre de commerce et d'industrie, d'une chambre régionale de commerce et d'industrie ou de l'assemblée des chambres françaises de commerce et d'industrie ne peuvent en aucun cas se cumuler en faveur d'un même bénéficiaire.
Article A712-6
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Une copie de la délibération de l'assemblée générale et, le cas échéant, de la décision du bureau, mentionnées aux articles A. 712-2 et A. 712-4, est adressée dans les quinze jours à l'autorité de tutelle.
Section 1 : Des modalités de la tutelle
Article A712-7
Le seuil en deçà duquel l'approbation préalable de l'autorité de tutelle n'est pas requise en matière d'autorisation d'emprunt pour les chambres de commerce et d'industrie est fixé, par opération, à un pourcentage de 5 % du produit de la taxe additionnelle à la taxe professionnelle perçu l'année antérieure par la chambre de commerce et d'industrie considérée, sous réserve des dispositions de l'article A. 712-9.
Article A712-8
Le seuil en deçà duquel l'approbation préalable de l'autorité de tutelle n'est pas requise en matière d'autorisation d'emprunt pour les autres établissements du réseau est fixé, par opération, à 5 % du total des contributions qui leur sont versées l'année antérieure par les chambres consulaires, sous réserve des dispositions de l'article A. 712-9.
Article A712-9
Quel que soit le résultat du pourcentage effectué en application des articles A. 712-7 et A. 712-8, le montant de l'emprunt en deçà duquel la demande d'autorisation préalable n'est pas requise est plafonné dans tous les cas et par opération : 1° A 300 000 € pour les établissements du réseau dont le montant de la taxe additionnelle à la taxe professionnelle collectée est inférieur à 10 millions d'euros ; 2° A 600 000 € pour les établissements du réseau dont le montant de la taxe additionnelle à la taxe professionnelle collectée est supérieur à 10 millions d'euros.
Article A712-10
L'approbation préalable de l'autorité de tutelle est requise en matière d'opération de crédit-bail immobilier, en application du 2° de l'article R. 712-7, si une des deux conditions suivantes est remplie : 1° Lorsque le montant du loyer est supérieur à 5 % du produit de la taxe additionnelle à la taxe professionnelle perçue l'année antérieure par la chambre de commerce et d'industrie considérée ou, pour les autres établissements du réseau des chambres de commerce et d'industrie, du montant des contributions de l'année antérieure qui leur sont versées par les chambres de commerce et d'industrie ; 2° Lorsque la levée de l'option d'acquisition intervient contractuellement après l'expiration de la quinzième année de location.
Article A712-11
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Quel que soit le résultat du calcul effectué en application de l'article A. 712-10 et la date de l'opération d'acquisition, le montant du loyer annuel en deçà duquel la demande d'autorisation préalable n'est pas requise est plafonné, dans tous les cas et par opération : 1° A 300 000 € pour les établissements du réseau dont le montant de la taxe additionnelle à la taxe professionnelle collectée est inférieur à 10 millions d'euros ; 2° A 600 000 € pour les établissements du réseau dont le montant de la taxe additionnelle à la taxe professionnelle collectée est supérieur à 10 millions d'euros.
Article A712-12
Le seuil en deçà duquel l'approbation préalable de l'autorité de tutelle n'est pas requise en matière d'émission d'obligations à taux fixe, en application du 2° de l'article R. 712-7, est de 5 % du produit de l'année antérieure de la taxe additionnelle à la taxe professionnelle de la chambre de commerce et d'industrie considérée ou, pour les autres établissements du réseau des chambres de commerce et d'industrie, de 5 % du total annuel des contributions qui leur ont été versées l'année antérieure par les chambres. Pour l'appréciation de ce seuil, l'émission d'obligations est considérée participer de la même opération si elle se produit au cours de la même période de trois ans à compter de l'émission du premier coupon, sans référence à l'usage affecté à l'emprunt. Le montant du produit annuel de la taxe additionnelle à la taxe professionnelle ou des contributions, tel qu'il est mentionné à l'alinéa ci-dessus pour permettre le calcul du pourcentage de 5 %, correspond alors à celui antérieur à la première année de lancement de l'emprunt.
Article A712-13
Le seuil en deçà duquel l'approbation préalable de l'autorité de tutelle n'est pas requise en matière d'émission d'obligations à taux variable, en application du 2° de l'article R. 712-7, est réduit de moitié par rapport au seuil mentionné à l'article A. 712-12. Pour l'appréciation de ce seuil, l'émission d'obligations est considérée participer de la même opération si elle se produit au cours de la même période de trois ans à compter de l'émission du premier coupon, sans référence à l'usage affecté à l'emprunt. Le montant du produit annuel de la taxe additionnelle à la taxe professionnelle ou des contributions, tel qu'il est mentionné à l'alinéa ci-dessus pour permettre le calcul du pourcentage de 2, 5 %, correspond à celui antérieur à la première année de lancement de l'emprunt.
Article A712-14
I. # Quel que soit le résultat du calcul effectué en application du premier alinéa de l'article A. 712-12, le montant de l'émission des obligations, au cours de la période de référence mentionnée au deuxième alinéa du même article, c'est-à-dire en cumulant le cas échéant le montant des émissions de coupons déjà intervenues au cours de l'année ou des deux années précédentes, en deçà duquel la demande d'autorisation préalable n'est pas requise, est plafonné dans tous les cas : 1° A 300 000 € pour les établissements du réseau dont le montant de la taxe additionnelle à la taxe professionnelle collectée est inférieur à 10 millions d'euros ; 2° A 600 000 € pour les établissements du réseau dont le montant de la taxe additionnelle à la taxe professionnelle collectée est supérieur à 10 millions d'euros. II. # Dans les cas mentionnés à l'article A. 712-13, ce plafond est fixé à la moitié des deux seuils mentionnés au I du présent article, respectivement pour les établissements du réseau dont le montant de la taxe additionnelle à la taxe professionnelle collectée est inférieur à 10 millions d'euros et pour ceux pour lesquels ce montant est supérieur à 10 millions d'euros.
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Article A712-15
Le seuil en deçà duquel l'approbation préalable de l'autorité de tutelle n'est pas requise en matière de garantie octroyée à un tiers pour les chambres de commerce et d'industrie est fixé, par opération, à un pourcentage de 5 % du produit de la taxe additionnelle à la taxe professionnelle perçu l'année précédente par la chambre de commerce et d'industrie considérée, sous réserve des dispositions des articles A. 712-17 et A. 712-18.
Article A712-16
Le seuil en deçà duquel l'approbation préalable de l'autorité de tutelle n'est pas requise en matière de garantie octroyée à un tiers pour les autres établissements du réseau est fixé, par opération, à 5 % du total des contributions qui leur sont versées l'année précédente par les chambres, sous réserve des dispositions des articles A. 712-17 et A. 712-18.
Article A712-17
Lorsque le montant cumulé des garanties encore en vigueur octroyées par la chambre, tous bénéficiaires confondus, dépasse les seuils indiqués aux articles A. 712-15 et A. 712-16, tout nouvel octroi de garantie, quel que soit son destinataire, fait l'objet d'une demande d'autorisation à l'autorité de tutelle. Toutefois, le montant des garanties à considérer pour l'application du premier alinéa ne comprend pas les garanties accordées à des organismes compris dans son périmètre de consolidation comptable, ni les garanties accordées par la chambre à des tiers (fournisseurs, administrations, bailleurs...) lorsqu'elles sont requises dans le cadre de son exploitation courante.
Article A712-18
En tout état de cause, ce montant ne peut dépasser le seuil de l'équivalent subvention brut correspondant au seuil de minimis pour les garanties octroyées aux entreprises, fixé par les règlements de la Commission européenne relatifs à la détermination du seuil des aides de minimis pour l'application du règlement n° 994/98 du 7 mai 1998 sur l'application des articles 92 et 93 du traité instituant la Communauté européenne à certaines catégories d'aides d'Etat horizontales.
Section 2 : Des règles budgétaires
Sous-section 1 : Dispositions communes
Article A712-19
Les exercices comptables et budgétaires des établissements du réseau des chambres de commerce et d'industrie coïncident avec l'année civile. Tout report de crédit d'un exercice sur le suivant fait
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l'objet d'une nouvelle inscription dans le budget primitif ou d'un éventuel budget rectificatif de cet exercice suivant.
Article A712-20
Le budget primitif de chaque établissement est adopté par son assemblée générale au plus tard le 30 novembre de l'année précédant l'exercice auquel il se rapporte. Aucun budget rectificatif ne peut être voté après l'adoption du budget primitif de l'exercice suivant ni, en tout état de cause, après la clôture de l'exercice. Le budget exécuté, auquel sont joints le compte de résultat, le bilan et l'annexe, est adopté par son assemblée générale au plus tard le 30 juin de l'année suivant l'exercice auquel il se rapporte.
Article A712-21
L'autorité de tutelle de l'établissement peut demander des éléments complémentaires à présenter avec les documents budgétaires.
Article A712-22
Les budgets primitifs, les éventuels budgets rectificatifs et les budgets exécutés sont transmis, pour approbation, à l'autorité de tutelle dans les quinze jours suivant leur adoption.
Article A712-23
Toutefois, les dépenses ou les charges financées par une augmentation, par rapport à l'exercice précédent, de la taxe pour frais de chambre de commerce et d'industrie ne peuvent être engagées qu'après notification du montant de cette taxe, et dans les limites correspondantes, ou après accord de l'autorité responsable de cette notification.
Article A712-24
L'approbation de tout budget primitif ou rectificatif ne tenant pas compte du montant notifié de la taxe pour frais de chambre de commerce et d'industrie est implicitement refusée. Dans ce cas, l'établissement doit adopter et transmettre un budget rectificatif dans les deux mois suivant la notification du montant de la taxe pour frais de chambre de commerce et d'industrie. Pendant cette période, l'établissement peut néanmoins exécuter le budget en cours de révision, sur la base du montant notifié.
Article A712-25
Afin d'individualiser certaines activités notamment économiques, les budgets et les comptes sont divisés en services budgétaires regroupant eux-mêmes des sections comptables.
Article A712-26
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L'ouverture d'un service budgétaire intitulé « service général » est obligatoire. En outre, les services budgétaires suivants sont ouverts dès lors qu'ils correspondent à une activité effective de l'établissement : # service Formation ; # service Ports ; # service Aéroports ; # service Collecte et gestion de la participation des employeurs à l'effort de construction (PEEC). Dans le cas où l'établissement effectue des opérations d'aménagement ou de construction à destination principale d'une cession immédiate ou différée de biens immobiliers à des tiers, et présentant une importance significative, elle ouvre, en outre, un service budgétaire intitulé « Aménagements ». Enfin, dans le cas où l'établissement exerce une ou plusieurs activités de type industriel ou commercial non couvertes par les services énumérés ci-dessus et présentant une importance significative, elle ouvre, en outre, un service budgétaire supplémentaire intitulé « Divers ». Aucun autre service budgétaire ne peut être ouvert sans autorisation du ministre chargé de la tutelle des chambres de commerce et d'industrie.
Article A712-27
A l'intérieur de ces services budgétaires, des sections comptables sont ouvertes conformément à l'annexe 7-1 au présent livre, dès lors qu'elles correspondent à une activité effective de l'établissement.D'autres sections comptables peuvent être ouvertes dans les conditions fixées par le ministre chargé de la tutelle des chambres de commerce et d'industrie.
Article A712-28
Les budgets primitifs, rectificatifs et exécutés des établissements sont constitués des documents énumérés aux annexes II et III de l'annexe 7-1 au présent livre.
Article A712-29
Ne présentent pas un caractère limitatif les dépenses ou les charges inscrites au budget des établissements, dans les cas suivants : 1° Les charges correspondent à des dotations aux amortissements ou aux provisions ; 2° Les charges supplémentaires correspondent à des dépenses obligatoires, notamment en matière de charges sociales, d'impôt, de taxes et de versements assimilés, d'impôt sur les bénéfices, d'astreintes et de dépenses découlant de l'exécution de décisions de justice ; 3° L'augmentation des charges de personnel (salaires et traitements, charges sociales, taxe sur les salaires) résulte d'une décision de la commission paritaire nationale, non connue lors de l'adoption du budget ; 4° L'augmentation des dépenses ou des charges est liée à un accroissement du volume d'une activité économique, et le supplément de ces dépenses ou de ces charges est intégralement couvert par des recettes ou des produits nouveaux de cette activité ; ces dépenses ou ces charges ne peuvent toutefois pas concerner le recrutement de personnels supplémentaires permanents ; 5° Les charges correspondent à des contributions versées aux services, à l'exception des contributions versées aux concessions. Parmi les recettes ou les produits, seuls présentent un caractère limitatif les transferts de charges (produits d'exploitation, produits financiers, produits exceptionnels) ainsi que les emprunts et autres dettes financières.
Article A712-30
Les augmentations de crédits n'entrant pas dans le cadre des atténuations ou exceptions mentionnées
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à l'article A. 712-29 ne peuvent résulter que d'un budget rectificatif. Toutefois, ce dernier peut être adopté suivant une procédure simplifiée, en ce qui concerne certaines augmentations de crédits ; le ministre chargé de la tutelle des chambres de commerce et d'industrie fixe les conditions, et notamment la forme, auxquelles satisfont les délibérations correspondantes.
Article A712-31
Les dépenses et les charges ainsi que les recettes et les produits font l'objet, respectivement, de l'émission d'un mandat ou d'un titre de perception préalablement à leur paiement ou à leur encaissement. Il peut être dérogé à cette règle pour le fonctionnement des régies d'avances et des régies de recettes et pour le paiement des dépenses obligatoires, notamment : 1° Les rémunérations du personnel et les charges sociales ; 2° Le service de la dette ; 3° Les impôts, taxes et versements assimilés ; 4° L'impôt sur les bénéfices ; 5° Les astreintes ; 6° Les dépenses découlant de l'exécution des décisions de justice ; 7° Les dépenses relatives aux élections des délégués consulaires et des membres des établissements du réseau.
Article A712-32
Au plus tard lors de la séance suivant son installation, l'assemblée générale de chaque établissement élit, en son sein, une commission des finances ainsi qu'une commission des marchés. Les membres de la commission des finances de l'assemblée des chambres françaises de commerce et d'industrie sont nommés selon des règles spécifiques fixées par le règlement intérieur de cette dernière.
Article A712-33
La commission des finances examine les budgets, le bilan, le compte de résultat et l'annexe, préalablement à leur adoption par l'assemblée générale ; elle lui présente un compte rendu de cet examen. La commission des marchés examine, préalablement à leur signature, les projets de marché à passer par l'établissement.
Article A712-34
La composition et les règles générales de fonctionnement de la commission des finances ainsi que de la commission des marchés sont précisées par le ministre chargé de la tutelle des chambres de commerce et d'industrie.
Article A712-35
Le président peut déléguer sa signature en matière d'exécution du budget et d'émission de titres de perception et de mandats à des membres élus de l'établissement, à l'exception du trésorier et de ses délégataires. Il peut également déléguer cette signature à des agents permanents de l'établissement non délégataires du trésorier ; la délégation ne peut alors porter que sur les engagements de dépenses et les actes dont découle une créance au profit de l'établissement.
Article A712-36
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Le trésorier peut déléguer sa signature, en matière d'exécution des opérations de dépenses, de recettes ou de gestion de la trésorerie, au trésorier adjoint ou à d'autres membres élus de l'établissement, à l'exception du président ou de ses délégataires. Il peut également déléguer cette signature à des agents permanents de l'établissement non délégataires du président ; la délégation ne peut alors porter que sur la signature des titres de paiement et des documents relatifs aux opérations de trésorerie.
Article A712-37
Une révision comptable est effectuée, avant adoption du budget exécuté, par le commissaire aux comptes nommé par l'établissement en application de l'article L. 712-6, dans les conditions fixées par l'autorité de tutelle.
Article A712-38
Le rapport du commissaire aux comptes chargé de la révision comptable est transmis aux membres de la commission des finances et de l'assemblée générale préalablement à l'examen du budget exécuté ; il est également transmis à l'autorité de tutelle, en même temps que le budget exécuté.
Article A712-39
Un chapitre spécifique du règlement intérieur regroupe l'ensemble de ses dispositions budgétaires, comptables et financières.
Article A712-40
Il est institué une commission nationale des diligences comptables chargée de rendre des avis sur tout problème relatif à l'application des règles comptables et budgétaires. Cette commission comprend, outre son président, quatorze membres, dont sept représentent l'institution consulaire et les sept autres les administrations intéressées. Tous ses membres ainsi que le président sont nommés par le ministre chargé de la tutelle des chambres de commerce et d'industrie ; ceux représentant l'institution consulaire le sont sur proposition du président de l'assemblée des chambres françaises de commerce et d'industrie. La commission se réunit sur un ordre du jour fixé par le président. A cet ordre du jour figurent les points dont l'inscription est demandée par le ministre chargé de la tutelle des chambres de commerce et d'industrie.
Article A712-41
Le plan comptable applicable aux chambres de commerce et d'industrie, aux chambres régionales de commerce et d'industrie, à l'assemblée des chambres françaises de commerce et d'industrie et aux groupements interconsulaires est consultable auprès du ministère de tutelle des chambres de commerce et d'industrie, dans les préfectures, à l'assemblée des chambres françaises de commerce et d'industrie, dans les chambres de commerce et d'industrie, les chambres régionales de commerce et d'industrie ainsi que les groupements interconsulaires.
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Article A712-42
Une instruction par voie de circulaire apportera toutes précisions utiles à l'application de la présente sous-section.
Sous-section 2 : Dispositions applicables aux chambres régionales
Sous-section 3 : Dispositions applicables aux groupements interconsulaires
Sous-section 4 : Dispositions applicables à l'assemblée des chambres françaises de commerce et d'industrie
Section 3 : Des emprunts souscrits et des garanties accordées par les établissements du réseau
Section 4 : Des équipements et services gérés par des établissements du réseau dans le cadre de délégations de service public
Chapitre III : De l'élection des membres des chambres de commerce et d'industrie et des délégués consulaires
Section 1 : De l'élection des membres des chambres de commerce et d'industrie
Sous-section 1 : De l'établissement des listes électorales
Article A713-1
I. # Les listes électorales prévues aux articles R. 713-1 et R. 713-2 sont destinées : 1° A être mises à disposition du public dans les conditions fixées à l'article R. 713-2 ; 2° A l'établissement des plis adressés aux électeurs par la commission mentionnée à l'article L. 713-17 ; 3° A servir de support à l'émargement lors du dépouillement du scrutin. II. # Les listes électorales dressées en vertu de
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l'article L. 713-14 sont regroupées pour chaque circonscription de chambre de commerce et d'industrie en une liste unique, laquelle est subdivisée en catégories ou, le cas échéant, en sous-catégories professionnelles et, pour les chambres de commerce et d'industrie comportant des délégations au sens des articles R. 711-18 et suivants, en délégations. III. # Les listes portent la mention de la dénomination de la chambre. Elles comportent pour chaque électeur les informations suivantes : 1° La sous-catégorie et la catégorie de l'électeur ; 2° Un numéro d'ordre sur la liste ; 3° Le numéro SIREN de l'entreprise ; 4° La dénomination sociale de l'entreprise ; 5° Les nom, prénoms, nationalité et date de naissance de l'électeur ; 6° L'adresse de correspondance de l'électeur pour l'expédition du matériel de vote prévu au I, 2°, ci-dessus ; 7° L'adresse professionnelle de l'électeur pour répondre aux objectifs prévus au I, 1° et 3°, ci-dessus ; 8° L'adresse de messagerie internet de l'électeur dans le cas où cette mention est nécessaire aux opérations de vote.
Article A713-2
Pour l'application de l'article R. 713-3, les chambres de commerce et d'industrie sont autorisées à payer aux greffiers, à la date du service fait, un forfait maximum de 0, 3 du taux de base par personne physique et de 0, 3 du taux de base par personne morale conformément au tarif annexé au présent livre.
Article A713-3
Les décisions de la commission d'établissement des listes électorales prévues à l'article R. 713-5 sont communiquées au préfet.
Sous-section 2 : Des candidatures
Article A713-4
Dans le cas de candidatures présentées sous forme collective, un même bulletin de vote regroupe, par catégorie ou sous-catégorie, les candidatures correspondantes.
Article A713-5
La commission d'organisation des élections peut décider, avec l'accord des candidats ou de leur mandataire, de faire porter sur un document unique, par catégorie ou, le cas échéant, par sous-catégorie professionnelle, l'ensemble des candidatures présentées sous forme collective ou individuelle. A cette fin, les candidats ou leur mandataire sont invités à la session de la commission qui établit, au plus tard trente-cinq jours avant la date du scrutin, le document unique. Le classement des candidatures sur ce document respecte l'ordre d'enregistrement des candidatures à la préfecture. Le document ainsi élaboré est dupliqué par la chambre de commerce et d'industrie dans un nombre au moins égal au nombre des électeurs inscrits dans la catégorie ou, le cas échéant, sous-catégorie, plus 10 %. Dans le cas où les candidatures présentées sous forme collective ou individuelle ne pourraient être portées sur un document unique, chaque candidat ou son mandataire remet, pour validation à la commission, trente-cinq jours au moins avant la date du scrutin, un exemplaire du bulletin de vote et un exemplaire de la circulaire.
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Article A713-6
Pour l'application de l'article R. 713-12, les frais de propagande s'entendent du coût du papier, de l'impression des bulletins de vote, des circulaires et des affiches et des frais d'affichage. Chaque groupement sous l'étiquette duquel des candidatures sont présentées dans la circonscription, chaque candidat isolé peuvent prétendre au remboursement des frais de reproduction d'un seul modèle de circulaire, d'un seul modèle d'affiche et d'un modèle de bulletin de vote par catégorie ou, le cas échéant, sous-catégorie professionnelle.
Article A713-7
Les plafonds maxima de dépenses d'impression et d'affichage arrêtés par les préfets dans les limites desquels les candidats peuvent prétendre à remboursement par référence à l'article L. 52-11 du code électoral sont ceux des documents présentant les caractéristiques suivantes : 1° Bulletins de vote sur papier blanc ou éventuellement sur papier recyclé, 80 grammes au mètre carré, ne pouvant dépasser les formats suivants : a) 74 mm × 105 mm, pour une candidature isolée ; b) 148 mm × 210 mm, pour les regroupements de candidats ; c) 210 mm × 297 mm, pour le document unique mentionné à l'article A. 713-5. Le nombre de bulletins admis à remboursement ne peut excéder celui effectivement remis conformément à l'article A. 713-9. Les bulletins de vote précisent : a) Le nom et le prénom usuels du ou des candidats ; b) Le cas échéant, leurs titres et décorations ; c) Leur profession ; d) La commune de leur activité ; e) L'entité sous l'égide de laquelle ils se présentent et la personne soutenant la ou les candidatures ; f) Leur sous-catégorie ou, à défaut, leur catégorie professionnelle ; g) La mention, le cas échéant, du département. Les formats et les mentions des bulletins de vote pour le vote électronique peuvent s'écarter des dispositions ci-dessus, à condition de garantir une stricte égalité entre les candidats. 2° Circulaires sur papier blanc satiné, 100 grammes au mètre carré, d'un format maximum de 297 mm × 420 mm, en quadrichromie. Le nombre de circulaires admis à remboursement ne peut excéder celui effectivement remis conformément à l'article A. 713-9. 3° Les affiches électorales sur papier couleur, 100 grammes au mètre carré, sans travaux de repiquage, d'un format maximum de 594 mm × 841 mm. Le nombre d'affiches admises à remboursement ne peut excéder une affiche pour cent électeurs inscrits. Conformément à l'article R. 27 du code électoral, les affiches ne peuvent comporter une combinaison des trois couleurs : bleu, blanc, rouge. Par référence à l'article L. 52-11-1 du code électoral, le préfet fixe par arrêté un montant maximum de remboursement des dépenses engagées par les candidats dans les conditions ci-dessus. Les demandes de remboursement sont adressées au président de la chambre de commerce et d'industrie. Conformément à l'article R. 39 du code électoral, les tarifs d'impression ne peuvent s'appliquer qu'à des documents présentant les caractéristiques ci-dessus et excluant tous travaux de photogravure (clichés, simili ou trait). Les candidats d'une liste ou un candidat isolé peuvent choisir d'utiliser un papier de qualité supérieure, de faire imprimer des photographies sur les affiches ou sur les circulaires, d'utiliser un mode d'impression d'un coût supérieur à la quadrichromie. Ces dépenses supplémentaires ne sont pas soumises à remboursement.
Sous-section 3 : De la préparation du scrutin
Article A713-8
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Le format des enveloppes et les mentions portées sur les enveloppes d'envoi du matériel de vote répondent aux spécifications qui figurent à l'annexe 7-2 au présent livre. Les enveloppes d'envoi du matériel de vote sont d'une dimension de 162 mm × 229 mm avec fenêtre pour un porte-adresse. Les enveloppes d'envoi du matériel de vote électronique sont conformes aux spécifications prévues à l'annexe 7-2 au présent livre. Les autres modalités relatives à la transmission aux électeurs du matériel électoral et au retour des plis contenant les votes font l'objet d'une convention avec l'entreprise chargée de l'acheminement du courrier signée entre cette entreprise, l'assemblée des chambres françaises de commerce et d'industrie et le ministère chargé de la tutelle des chambres de commerce et d'industrie.
Article A713-9
Vingt-cinq jours avant le scrutin, les candidats ou leurs mandataires remettent à la commission d'organisation des élections un nombre de bulletins de vote et de circulaires au moins égal au nombre des électeurs inscrits dans sa catégorie ou, le cas échéant, sous-catégorie plus 10 % pour lui permettre de procéder à l'expédition du matériel électoral aux électeurs.
Article A713-10
Les enveloppes d'acheminement des circulaires, des bulletins de vote et des instruments nécessaires au vote font mention de la disposition prévue au dernier alinéa de l'article R. 713-14. Les enveloppes contenant le matériel électoral sont closes.
Sous-section 4 : Du vote par correspondance
Article A713-11
Le format des enveloppes et les mentions portées sur les enveloppes d'acheminement des votes répondent aux spécifications qui figurent à l'annexe 7-2 au présent livre. Les enveloppes d'acheminement des votes prévues au I de l'article R. 713-17 peuvent comporter des mentions supplémentaires. Les enveloppes d'acheminement du vote sont d'une dimension de 110 mm × 220 mm. Les enveloppes de scrutin contenant les bulletins de vote sont d'une dimension de 90 mm × 139 mm. Elles peuvent être de couleurs différentes selon les catégories professionnelles ou, le cas échéant, les sous-catégories professionnelles.
Article A713-12
Les enveloppes d'acheminement du vote sont closes.
Article A713-13
L'état récapitulatif des plis reçus à la préfecture mentionné au I de l'article R. 713-17 est tenu à la disposition de chacun des membres de la commission d'organisation des élections.
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Sous-section 5 : Du vote électronique
Sous-section 6 : De la proclamation des résultats et du contentieux des élections
Section 2 : De l'élection des délégués consulaires
Sous-section 1 : Dispositions générales
Article A713-14
Lorsque la circonscription d'une chambre de commerce et d'industrie comprend plusieurs départements, l'autorité de tutelle compétente pour l'application de la présente section est celle mentionnée au 4° de l'article R. 712-2.
Article A713-15
Chaque candidat ou son mandataire remet, pour validation à la commission, trente-cinq jours au moins avant le dernier jour du scrutin, un exemplaire du bulletin de vote et un exemplaire de la circulaire.
Article A713-16
Vingt-cinq jours avant le dernier jour du scrutin, les candidats ou leurs mandataires remettent à la commission d'organisation des élections un nombre de bulletins de vote et de circulaires au moins égal au nombre des électeurs inscrits dans sa catégorie ou, le cas échéant, sous-catégorie plus 10 % pour lui permettre de procéder à l'expédition du matériel électoral aux électeurs. Les enveloppes contenant le matériel électoral sont closes.
Article A713-17
Les enveloppes d'envoi du matériel de vote sont d'une dimension de 162 mm × 229 mm avec fenêtre pour un porte-adresse. Les enveloppes d'envoi du matériel de vote électronique sont conformes aux spécifications prévues à l'annexe 7-3 au présent livre. Les modalités relatives à la transmission aux électeurs du matériel électoral et au retour des plis contenant les votes font l'objet d'une convention avec l'entreprise chargée de l'acheminement du courrier signée entre cette entreprise, l'assemblée des chambres françaises de commerce et d'industrie et le ministère chargé de la tutelle des chambres de commerce et d'industrie. Le format des enveloppes et les mentions portées sur les enveloppes d'envoi du matériel de vote répondent également aux spécifications qui
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figurent à l'annexe 7-3 au présent livre.
Sous-section 2 : De l'établissement des listes électorales
Article A713-18
I. # Les listes électorales prévues aux articles R. 713-37 et R. 713-38 sont destinées : 1° A être mises à disposition du public dans les conditions fixées à l'article R. 713-38 ; 2° A l'établissement des plis adressés aux électeurs par la commission mentionnée à l'article L. 713-17 ; 3° A servir de support à l'émargement lors du dépouillement du scrutin. II. # Les listes électorales dressées en vertu de l'article L. 713-14 par ressort de juridiction de première instance compétente en matière commerciale et comportant des juges élus sont subdivisées en catégories ou, le cas échéant, en sous-catégories professionnelles. III. # Les listes doivent porter la mention de la juridiction de première instance compétente en matière commerciale comportant des juges élus. Elles comportent pour chaque électeur les informations suivantes : 1° La sous-catégorie et la catégorie de l'électeur ; 2° Un numéro d'ordre sur la liste ; 3° Le numéro SIREN de l'entreprise ; 4° La dénomination sociale de l'entreprise ; 5° Les nom, prénoms, nationalité et date de naissance de l'électeur ; 6° L'adresse de correspondance de l'électeur pour l'expédition du matériel de vote prévu au I, 2°, ci-dessus ; 7° L'adresse professionnelle de l'électeur pour répondre aux objectifs prévus au I, 1° et 3°, ci-dessus ; 8° L'adresse internet de l'électeur dans le cas où cette mention est nécessaire aux opérations de vote.
Article A713-19
Les décisions de la commission d'établissement des listes électorales, prévues à l'article R. 713-40, sont communiquées au préfet.
Sous-section 3 : Des candidatures
Article A713-20
Dans le cas de candidatures présentées sous forme collective, un même bulletin de vote regroupe par catégorie ou sous-catégorie les candidatures correspondantes.
Article A713-21
Pour l'application de l'article R.713-48, les frais de propagande s'entendent du coût du papier, de l'impression des bulletins de vote, des circulaires et des affiches et des frais d'affichage. Chaque groupement sous l'étiquette duquel des candidatures sont présentées dans la circonscription, chaque candidat isolé peut prétendre au remboursement des frais de reproduction d'un seul modèle de circulaire, d'un seul modèle d'affiche et d'un modèle de bulletin par catégorie ou, le cas échéant, sous-catégorie professionnelle.
Article A713-22
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Les plafonds maxima de dépenses d'impression et d'affichage arrêtés par les préfets dans les limites desquels les candidats peuvent prétendre à remboursement sont ceux des documents présentant les caractéristiques suivantes : 1° Bulletins de vote sur papier blanc ou éventuellement sur papier recyclé, 80 grammes au mètre carré, ne pouvant dépasser les formats suivants : a) 74 mm × 105 mm pour une candidature isolée ; b) 148 mm × 210 mm pour les regroupements de candidats. Il est procédé au remboursement des bulletins sur la base du nombre d'exemplaires effectivement remis et dans la limite du maximum fixé à l'article A. 713-16. Les bulletins de vote précisent : a) Le nom et le prénom usuels du ou des candidats ; b) Le cas échéant, leur titres et décorations ; c) Leur profession ; d) La commune de leur activité ; e) L'entité sous l'égide de laquelle ils se présentent et la personne soutenant la ou les candidatures ; f) Leur sous-catégorie ou, à défaut, leur catégorie professionnelle ; g) La mention, le cas échéant, du département. 2° Circulaires sur papier blanc satiné, 100 grammes au mètre carré, d'un format maximum de 297 mm × 420 mm, en quadrichromie. Il est procédé au remboursement des circulaires sur la base du nombre d'exemplaires effectivement remis et dans la limite du maximum fixé à l'article A. 713-16. 3° Les affiches électorales sur papier couleur, 100 grammes au mètre carré, sans travaux de repiquage, d'un format maximum de 594 mm × 841 mm. Le nombre d'affiches admises à remboursement ne peut excéder une affiche par tranche entière de 100 électeurs inscrits. Conformément à l'article R. 27 du code électoral, les affiches ne peuvent comporter une combinaison des trois couleurs : bleu, blanc, rouge. Le préfet fixe par arrêté un montant maximum de remboursement des dépenses engagées par les candidats dans les conditions ci-dessus. Les demandes de remboursement sont adressées au président de la chambre de commerce et d'industrie. Conformément à l'article R. 39 du code électoral, les tarifs d'impression ne peuvent s'appliquer qu'à des documents présentant les caractéristiques ci-dessus et excluant tous travaux de photogravure (clichés, simili ou trait). Les candidats d'une liste ou un candidat isolé peuvent choisir d'utiliser un papier de qualité supérieure, de faire imprimer des photographies sur les affiches ou sur les circulaires, d'utiliser un mode d'impression d'un coût supérieur à la quadrichromie. Ces dépenses supplémentaires ne sont pas soumises à remboursement.
Sous-section 4 : Du vote par correspondance
Article A713-23
Les enveloppes d'acheminement du vote sont d'une dimension de 110 mm × 220 mm. Les enveloppes de scrutin contenant les bulletins de vote sont d'une dimension de 90 mm × 139 mm. Elles peuvent être de couleurs différentes selon les catégories professionnelles ou, le cas échéant, les sous-catégories professionnelles. Les enveloppes d'acheminement des votes prévues à l'article R. 713-50 peuvent comporter des mentions supplémentaires. Le format des enveloppes et les mentions portées sur les enveloppes d'acheminement des votes répondent également aux spécifications qui figurent à l'annexe 7-3 au présent livre.
Article A713-24
Les enveloppes d'acheminement du vote sont closes.
Article A713-25
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
L'état récapitulatif des plis reçus à la préfecture mentionné à l'article R. 713-50 est tenu à la disposition de chacun des membres de la commission d'organisation des élections.
Sous-section 5 : Du vote électronique
Sous-section 6 : De la proclamation des résultats et du contentieux
Section 3 : Dispositions communes
Article A713-26
Les catégories professionnelles des chambres de commerce et d'industrie correspondant respectivement aux activités du commerce, de l'industrie et des services sont composées conformément aux listes figurant à l'annexe 7-4 au présent livre, par référence aux nomenclatures d'activités et de produits françaises de l'Institut national de la statistique et des études économiques.
Article A713-27
Les données statistiques qui permettent de calculer les rapports mentionnés à l'article R. 713-66 sont collectées par la chambre de commerce et d'industrie auprès des services fiscaux en ce qui concerne les bases d'imposition de la taxe professionnelle, lesquelles sont fournies par établissement, et auprès des unions pour le recouvrement des cotisations de la sécurité sociale et d'allocations familiales (URSSAF) ou des associations pour l'emploi dans l'industrie et le commerce (ASSEDIC) en ce qui concerne le nombre de salariés des établissements.
Article A713-28
Il est créé dans les chambres de commerce et d'industrie, en vue de l'étude mentionnée à l'article R. 713-66, un traitement automatisé d'informations nominatives dont l'objet est de permettre au préfet de déterminer, conformément à l'article R. 713-68, la répartition des membres élus de ces établissements publics et des délégués consulaires entre catégories et, le cas échéant, sous-catégories professionnelles.
Article A713-29
Les catégories d'informations nominatives traitées concernent les personnes physiques et morales inscrites au registre du commerce et des sociétés. Elles concernent : 1° Le nom ou la dénomination sociale ; 2° Le code NAF ; 3° Le numéro SIRET ; 4° L'adresse ; 5° Le nombre de salariés ; 6° La base nette taxable de l'établissement. Ces informations sont collectées conformément à l'article A. 713-27.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Article A713-30
Le droit d'accès prévu par l'article 39 de la loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés s'exerce auprès de la chambre de commerce et d'industrie dont le demandeur est ressortissant.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Partie Arrêtés
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce
TITRE II : Du tribunal de commerce
Chapitre Ier : De l'institution et de la compétence
Section 1 : Dispositions générales
Section 2 : De la compétence
Section 3 : Du Conseil national des tribunaux de commerce
Article A721-1
Les chefs de cour d'appel sont invités, six mois avant la fin du mandat des membres du Conseil national des tribunaux de commerce, par circulaire du directeur des services judiciaires, à recueillir les candidatures des juges consulaires en activité ou honoraires souhaitant être désignés par le garde des sceaux, ministre de la justice, au sein du conseil, en application de l'article R. 721-8.
Article A721-2
Les juges consulaires adressent leur candidature par écrit au garde des sceaux, ministre de la justice, et aux chefs de la cour d'appel dans le ressort de laquelle ils exercent leur mandat ou ont exercé leur dernier mandat, dans le délai indiqué à l'article R. 721-9.
Article A721-3
Les chefs de cour transmettent au garde des sceaux, ministre de la justice, les dossiers de candidature au plus tard quinze jours après l'expiration de ce délai.
Article A721-4
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Le dossier de candidature comporte : 1° La déclaration de candidature datée et signée par le candidat ; 2° Un état de services établi par le candidat et visé par le président du tribunal de commerce ; 3° L'avis motivé du président du tribunal de commerce ; 4° L'avis motivé des chefs de cour.
Article A721-5
Toute candidature à une désignation de membre titulaire vaut également candidature à une désignation de membre suppléant.
Article A721-6
Les juges consulaires sont désignés compte tenu de leurs compétences professionnelles et afin d'assurer une représentation équilibrée du territoire national.
Article A721-7
La direction des services judiciaires assure le secrétariat du Conseil national des tribunaux de commerce.
Article A721-8
Le secrétaire général du Conseil national des tribunaux de commerce prépare les réunions du conseil, y assiste et en établit les comptes rendus, qui sont signés par le président de séance et diffusés à l'ensemble des membres.
Article A721-9
Il est chargé de la préparation du rapport annuel d'activité.
Article A721-10
Il participe à la mise en œuvre de la communication du conseil.
Chapitre II : De l'organisation et du fonctionnement
Chapitre III : De l'élection des juges des tribunaux de commerce
Chapitre IV : De la discipline des juges des tribunaux de commerce
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Partie Arrêtés
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce
TITRE III : Des juridictions commerciales particulières
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Partie Arrêtés
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce
TITRE IV : : Du greffe du tribunal de commerce
Chapitre Ier : De l'institution et des missions
Section 1 : Dispositions générales
Article A741-1
Le nombre d'agents des greffes des tribunaux de commerce affectés à titre permanent pour assister les présidents des tribunaux de commerce est fixé comme suit : 1° Dans les tribunaux de commerce comprenant un effectif de 25 juges à 30 juges : 1 ou 2 agents ; 2° Dans les tribunaux de commerce comprenant un effectif de 31 juges à 40 juges : 2 ou 3 agents ; 3° Dans les tribunaux de commerce comprenant un effectif de 41 juges à 60 juges : 3 ou 4 agents ; 4° Dans les tribunaux de commerce comprenant un effectif supérieur à 60 juges : 5 agents ou plus.
Article A741-2
Lorsque le président du tribunal de commerce et le greffier en sont d'accord, il peut être dérogé aux dispositions prévues à l'article A. 741-1.
Section 2 : De la modification du ressort des juridictions commerciales
Section 3 : Du Conseil national des greffiers des tribunaux de commerce
Chapitre II : Des conditions d'accès à la profession et aux autres professions judiciaires et juridiques
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Section 1 : Des conditions d'accès à la profession de greffier de tribunal de commerce
Sous-section 1 : Des conditions d'aptitude
Paragraphe 1 : Des conditions générales
Article A742-1
Sont admis en dispense de la maîtrise en droit pour l'exercice de la profession de greffier de tribunal de commerce tous diplômes sanctionnant un niveau de formation correspondant au moins à quatre années d'études après le baccalauréat dans les disciplines juridiques, délivrés par : 1° Un établissement public à caractère scientifique, culturel et professionnel habilité à le délivrer ; 2° Un établissement d'enseignement supérieur privé reconnu par l'Etat et autorisé à délivrer un diplôme visé par le ministre chargé de l'enseignement supérieur ; 3° Un institut d'études politiques ; 4° La faculté libre autonome et cogérée d'économie et de droit de Paris.
Article A742-2
L'examen d'aptitude prévu à l'article R. 742-5 a lieu au moins une fois par an, à une date et dans un lieu fixés par le garde des sceaux, ministre de la justice.
Article A742-3
Une publicité suffisante, deux mois au moins à l'avance de la date fixée pour les épreuves, est assurée, notamment par des insertions dans les revues professionnelles et par un affichage dans les locaux des tribunaux de commerce.
Article A742-4
Les candidatures sont adressées, par lettre recommandée avec demande d'avis de réception, au garde des sceaux, ministre de la justice, au plus tard le 31 mai de chaque année. Le dossier de candidature comprend : 1° Une requête de l'intéressé ; 2° Tous documents officiels justificatifs de l'identité et de la nationalité ; 3° Tous justificatifs permettant d'apprécier si le candidat remplit les conditions prévues par l'article R. 742-4, notamment le contenu précis du cycle d'études postsecondaires suivi avec succès, les diplômes, certificats ou autres titres dont le candidat est titulaire et les justificatifs de son activité professionnelle antérieure. Les pièces produites devront être accompagnées, le cas échéant, de leur traduction en langue française par un traducteur inscrit sur la liste nationale des experts judiciaires ou sur l'une des listes d'experts judiciaires dressées par les cours d'appel.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Article A742-5
La liste des candidats admis à se présenter à cet examen est arrêtée par le garde des sceaux, ministre de la justice, deux mois avant la date fixée pour les épreuves. Des convocations individuelles indiquant le jour, l'heure et le lieu des épreuves sont adressées à chaque candidat au moins un mois à l'avance.
Article A742-6
L'examen, dont le programme figure à l'annexe 7-5 au présent livre, se compose d'un écrit et d'un oral.L'écrit comporte deux épreuves, l'une portant sur un sujet juridique d'ordre général en rapport avec les activités de greffier de tribunal de commerce, l'autre consistant en la rédaction d'actes de greffe. Chacune de ces épreuves se déroule en trois heures. Le jury arrête les sujets des épreuves écrites auxquelles doit être soumis le candidat. Les épreuves sont organisées de manière à assurer l'anonymat des candidats. Les candidats sont autorisés à se servir de codes et recueils de lois et décrets comportant des références d'articles de doctrine et de jurisprudence, à l'exclusion toutefois de codes annotés et commentés, article par article, par des professionnels du droit.L'oral consiste en un entretien de vingt minutes avec le jury. Chacune des épreuves écrites ou orale est notée sur 20.
Article A742-7
L'admission est prononcée par le jury au vu de la moyenne obtenue par le candidat aux épreuves qu'il a subies à condition que cette moyenne soit égale ou supérieure à 10 sur 20. A l'issue des épreuves, le jury dresse la liste des candidats déclarés admis. Le résultat de l'examen est notifié individuellement à chaque candidat par le garde des sceaux, ministre de la justice, qui délivre à chaque candidat admis une attestation de réussite à l'examen d'aptitude.
Paragraphe 2 : Du stage
Paragraphe 3 : De l'examen d'aptitude
Article A742-8
L'examen d'aptitude à la profession de greffier de tribunal de commerce a lieu au moins une fois par an. Les dates et lieux des épreuves sont fixés au plus tard quatre mois avant la date de la première épreuve par le président du Conseil national des greffiers des tribunaux de commerce qui en assure une publicité suffisante, notamment par voie de circulaires diffusées dans chaque office de greffier de tribunal de commerce ; il en informe aussitôt le garde des sceaux, ministre de la justice.
Article A742-9
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Les candidatures sont adressées par lettre recommandée avec demande d'avis de réception, au plus tard trois mois avant la date de la première épreuve, au procureur de la République près le tribunal de grande instance dans le ressort duquel le stage est accompli. Le dossier de candidature comprend : 1° Une requête de l'intéressé ; 2° Tous documents officiels justificatifs de l'identité et de la nationalité du candidat ; 3° Une copie de l'un des titres ou diplômes prévus au 6° de l'article R. 742-1 ou la justification de leur dispense ; 4° Une copie du certificat prévu à l'article R. 742-15 ou la justification de la dispense de stage prévue à l'article R. 742-2 ; 5° Un certificat d'affiliation à la caisse primaire de sécurité sociale et la justification des rémunérations perçues en cours de stage. Le procureur de la République transmet les candidatures au garde des sceaux, ministre de la justice, par l'intermédiaire du procureur général.
Article A742-10
Le garde des sceaux, ministre de la justice, arrête la liste des candidats admis à subir les épreuves de l'examen d'aptitude au plus tard un mois avant le début des épreuves ; il transmet sans délai au Conseil national des greffiers des tribunaux de commerce les dossiers de ces candidats. Des convocations individuelles indiquant le jour, l'heure et le lieu des épreuves sont adressées à chaque candidat, au moins quinze jours à l'avance, par le Conseil national des greffiers des tribunaux de commerce.
Article A742-11
L'examen d'aptitude comprend des épreuves écrites d'admissibilité et des épreuves orales d'admission portant sur le programme figurant à l'annexe 7-6 au présent livre. Les sujets des épreuves écrites sont arrêtés par le jury. Le Conseil national des greffiers des tribunaux de commerce assure le secrétariat du jury.
Article A742-12
Les épreuves écrites d'admissibilité comprennent : 1° Une épreuve théorique d'une durée de quatre heures portant sur des sujets de droit civil et de droit commercial ; 2° Une épreuve d'une durée de quatre heures portant sur un ou plusieurs sujets relatifs à la pratique des greffes des tribunaux de commerce.
Article A742-13
Le président, un ou plusieurs membres du jury ou leurs suppléants, assistés, le cas échéant, par des greffiers de tribunal de commerce désignés à cet effet par le président du jury, assurent la surveillance des épreuves d'admissibilité.
Article A742-14
Pour les épreuves d'admissibilité, les candidats peuvent utiliser les codes et recueils de lois et décrets comportant des références d'articles de doctrine et de jurisprudence, à l'exclusion toutefois des codes annotés et commentés, article par article, par des professionnels du droit. Ils peuvent également se servir de codes ou recueils de lois et décrets ne contenant aucune indication de
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
doctrine ou de jurisprudence, sans autre note que des références à des textes législatifs ou réglementaires. Tout candidat ayant procuré ou utilisé des documents non autorisés est exclu de la salle et sa composition est annulée.
Article A742-15
La correction des épreuves d'admissibilité est organisée de manière à préserver l'anonymat de chaque candidat. Chaque composition est examinée par deux correcteurs et reçoit une note de 0 à 20. Cette note est affectée d'un coefficient 4. L'admissibilité est prononcée par le jury au vu de la moyenne des notes obtenues par le candidat aux épreuves écrites si celle-ci est égale ou supérieure à 10 sur 20. Le jury arrête par ordre alphabétique la liste des candidats déclarés admissibles. Le résultat des épreuves est notifié à chaque candidat par le Conseil national des greffiers des tribunaux de commerce par courrier portant, pour les candidats déclarés admissibles, convocation aux épreuves orales. L'admissibilité n'est valable que pour la session au cours de laquelle elle a été acquise.
Article A742-16
Nul ne peut se présenter aux épreuves orales d'admission s'il n'a été déclaré admissible par le jury. Les épreuves d'admission comprennent : 1° Une interrogation orale d'une durée de quinze minutes portant sur le droit civil et le droit commercial ; 2° Une interrogation orale d'une durée de quinze minutes portant sur l'organisation judiciaire et la procédure civile et commerciale ; 3° Une interrogation orale d'une durée de quinze minutes portant sur la pratique des greffes des tribunaux de commerce ; 4° Une interrogation orale d'une durée de quinze minutes portant sur la réglementation professionnelle et la gestion du greffe d'un tribunal de commerce.
Article A742-17
Les épreuves orales se déroulent en séance publique. Elles sont notées de 0 à 20. Chaque note est affectée d'un coefficient 2. L'admission est prononcée par le jury au vu de la moyenne obtenue par le candidat à l'ensemble des épreuves écrites et orales, à condition que cette moyenne soit égale ou supérieure à 10 sur 20.
Article A742-18
Le jury arrête la liste des candidats déclarés admis. Le Conseil national des greffiers des tribunaux de commerce notifie individuellement aux candidats le résultat des épreuves ; il délivre à chaque candidat admis un certificat d'aptitude à la profession de greffier de tribunal de commerce.
Sous-Section 2 : De la nomination
Sous-section 3 : De l'entrée en fonctions et de l'honorariat
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Section 2 : Des conditions d'accès aux professions judiciaires et juridiques de certains greffiers de tribunal de commerce
Chapitre III : Des conditions d'exercice
Section unique : Compte affecté aux fonds détenus pour le compte de tiers.
Article A743-1
L'encaissement des chèques, stipulés payables au profit du greffier des tribunaux de commerce ou de la société titulaire de l'office, ou endossés à l'ordre du greffier des tribunaux de commerce ou de la société titulaire de l'office, le dépôt des espèces et la domiciliation des virements correspondant aux provisions et sommes mentionnées à l'article R. 743-178 sont effectués sur le compte de dépôt obligatoire affecté à chacune des catégories de fonds mentionnées au même article ouvert par l'office de greffier de tribunaux de commerce auprès de la Caisse des dépôts et consignations.
Article A743-2
La Caisse des dépôts et consignations fournit un relevé de compte journalier au greffier des tribunaux de commerce. Ce relevé indique le numéro de compte de dépôt obligatoire, le solde antérieur, l'enregistrement des versements et des retraits effectués sur ce compte, la date et le nouveau solde.
Article A743-3
Les comptes de dépôt obligatoire affectés aux différentes catégories de fonds ne peuvent donner lieu à des retraits d'espèces, ni à la mise à disposition de cartes de paiement ou de crédit ni domicilier aucune autorisation de prélèvement. Le titulaire d'un compte de dépôt obligatoire affecté peut procéder, sur ordre exprès, à des virements sur d'autres comptes dans le cadre de l'exécution des missions qui lui sont confiées.
Article A743-4
A l'exception des fonds ou des instruments financiers reçus par le greffier des tribunaux de commerce au titre de l'article L. 3253-15 du code du travail, les dépôts enregistrés sur chaque compte de dépôt obligatoire sont rémunérés par un intérêt calculé au taux et selon les modalités prévus par la décision prise en application de l'article L. 518-23 du code monétaire et financier.
Article A743-5
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Les intérêts obtenus au titre des provisions pour expertises judiciaires sont versés au profit du greffier des tribunaux de commerce sur le compte bancaire professionnel de l'office. Ceux obtenus au titre des missions de séquestre transitent par le compte de dépôt spécialement affecté avant d'être restitués au bénéficiaire du séquestre.
Article A743-6
Une convention est signée entre chaque office de greffier des tribunaux de commerce et la Caisse des dépôts et consignations. Toute stipulation contractuelle contraire aux clauses types figurant à l'annexe 7-6-1 au présent livre sera réputée non écrite.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Partie Arrêtés
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce
TITRE V : De l'équipement commercial
Article A750-1
La direction générale de la concurrence, de la consommation et de la répression des fraudes (DGCCRF) est autorisée à mettre en œuvre dans ses services déconcentrés et à l'administration centrale un traitement automatisé d'informations comportant des données à caractère personnel intitulé « Base d'aide logicielle à l'inventaire » (BALI).
Article A750-2
Le traitement automatisé a pour finalité de permettre l'instruction des demandes d'autorisation de surfaces commerciales, le contrôle des surfaces autorisées et la participation aux travaux des observatoires départementaux d'équipement commercial mentionnés à l'article L. 751-9.A cette fin, l'application recense les établissements commerciaux soumis à autorisation d'exploitation commerciale en application de l'article L. 752-1.
Article A750-3
Les catégories d'informations enregistrées au titre de l'instruction des dossiers figurent au tableau A de l'annexe 7-7. Les catégories d'informations enregistrées au titre du recensement et de la mission de contrôle des surfaces autorisées figurent au tableau B de l'annexe 7-7.
Article A750-4
Les personnes autorisées des services déconcentrés et centraux de la direction générale de la concurrence, de la consommation et de la répression des fraudes (DGCCRF) et la direction du commerce, de l'artisanat, des services et des professions libérales (DCASPL) sont destinataires des données visées à l'article A. 750-3.
Article A750-5
Le haut fonctionnaire de défense et de sécurité (HFDS), la direction générale du Trésor (DGTPE), l'Institut national de la statistique et des études économiques (INSEE), les directions
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
départementales de l'équipement (DDE), les observatoires départementaux de l'équipement commercial (ODEC) et les observatoires régionaux de l'équipement commercial (OREC) sont destinataires des données enregistrées au titre du recensement et de la mission de contrôle des surfaces autorisées figurant au tableau B de l'annexe 7-7.
Article A750-6
Les personnes qui en font la demande peuvent être destinataires des informations suivantes : A. # Catégories d'informations enregistrées au titre de l'instruction des dossiers : A-1. Description de la demande. A-1.1. Date et objet de la demande (création/extension et surface totale créée). A-1.2. Localisation (adresse postale : numéro et rue, commune, Cedex, nom du lotissement commercial, nom du centre commercial, code département) et type d'équipement du projet (ensemble commercial/commerce isolé). A-1.3. Enseigne principale. A-1.4. Date et décision de la commission départementale d'équipement commercial (CDEC). A-1.5. Détail de la décision (nombre de votants, de oui, non et nuls, observations). A-1.6. Date et décision de la Commission nationale d'équipement commercial (CNEC). A-2. Identification du demandeur. A-2.1. Numéro SIREN du demandeur, sa dénomination sociale et son adresse postale. B. # Catégories d'informations enregistrées au titre du recensement et de la mission de contrôle des surfaces autorisées : B-1. Local commercial. B-1.1. Adresse postale (numéro et rue, nom du local commercial, nom du pôle commercial, nom du lotissement commercial, nom du centre commercial, nom du quartier, type de zone de redynamisation urbaine (ZRU), type de zone d'aménagement concerté créée dans un centre urbain (ZACCU), commune, Cedex, nom du canton, nom de l'arrondissement, nom du département, surfaces de vente intérieure, extérieure et totale et/ou nombre de positions de ravitaillement en carburant. B-1.2. Date d'autorisation et, le cas échéant, du permis de construire. B-2. Exploitation commerciale. B-2.1. Numéro SIRET, nom de l'établissement commercial (enseigne) et ses codes activité et secteurs activité (codification NAF). B-2.2. Nom de l'enseigne, type de magasin, type de réseau, date d'ouverture, date de fermeture, exploité, virtuel (autorisé mais non encore ouvert), commercialité, date de fin de commercialité, date d'extension. B-3. Identification de l'entreprise qui exploite le magasin. B-3.1. Dénomination sociale et numéro SIREN de l'entreprise.
Article A750-7
Les informations enregistrées concernant l'entreprise exploitante sont mises à jour et conservées tant que celle-ci figure dans le fichier SIRENE de l'INSEE. Lorsqu'une demande d'autorisation a été instruite, l'identité des demandeurs est apurée automatiquement à l'issue d'un délai d'un an à compter de la décision de la CDEC.
Article A750-8
Le droit d'opposition prévu par l'article 38 de la loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés ne s'applique pas au traitement mis en place.
Article A750-9
Le droit d'accès et de rectification prévu aux articles 39 et 40 de la loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés s'exerce auprès des chefs d'unité de la concurrence, de la consommation et de la répression des fraudes du département où le commerce est
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implanté ou le sera.
Chapitre Ier : Des commissions d'équipement commercial et des observatoires départementaux d'équipement commercial
Section 1 : Des commissions départementales d'équipement commercial
Section 2 : De la Commission nationale d'équipement commercial
Section 3 : Des observatoires départementaux d'aménagement commercial
Article A751-1
Le collège des élus locaux de l'observatoire départemental d'aménagement commercial est composé comme suit :
1° Le maire de la commune chef-lieu du département ;
2° Le maire de la commune la plus peuplée du département en dehors de l'arrondissement de la commune chef-lieu ;
3° Deux maires de communes de moins de 5 000 habitants dont un, au moins, d'une commune de moins de 2 000 habitants, nommés par le préfet de département ;
4° Deux conseillers généraux, autres que les maires visés ci-dessus, appartenant à deux arrondissements différents, désignés par la commission permanente du conseil général ;
5° Le représentant, autre que les élus visés ci-dessus, d'un établissement public de coopération intercommunale compétent en matière d'aménagement de l'espace ou de développement économique, nommé par le préfet de département ;
6° Le représentant, autre que les élus visés ci-dessus, d'un établissement public compétent en matière de schéma de cohérence territoriale, nommé par le préfet de département, lorsqu'un tel établissement existe.
Article A751-2
Le collège des représentants des activités commerciales et artisanales, nommés par le préfet après consultation des organisations professionnelles concernées, est composé comme suit :1° Un représentant des entreprises exploitantes de grands magasins ou magasins multi-commerces ;2° Un représentant des entreprises exploitantes d'hypermarchés ou de supermarchés ;3° Un représentant
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des entreprises exploitantes de commerces spécialisés de grande surface ;4° Deux exploitants de magasins de détail d'une surface de vente inférieure à 300 mètres carrés ou de commerces non sédentaires, dont un représentant des entreprises immatriculées au répertoire des métiers.
Article A751-3
Le collège des représentants des chambres de commerce et d'industrie et des chambres de métiers et de l'artisanat est composé comme suit :
1° Trois représentants désignés par la ou les chambres de commerce et d'industrie parmi leurs membres élus ;
2° Deux représentants désignés par la ou les chambres de métiers et de l'artisanat parmi leurs membres élus.
Article A751-4
Cinq personnalités qualifiées sont nommées par le préfet, dont deux représentants au moins d'une association de consommateurs et un représentant d'une société gestionnaire de centre commercial.
Article A751-5
L'administration est représentée par :
1° Le responsable des services territorialement compétents chargés du commerce ou son représentant ;
2° Le directeur des services territorialement compétents chargés de la concurrence et de la consommation ou son représentant ;
3° Le directeur des services territorialement compétents chargés de l'urbanisme et de l'environnement ou son représentant ;
4° Le directeur régional de l'Institut national de la statistique et des études économiques ou son représentant.
Article A751-6
Un membre suppléant est désigné dans les mêmes conditions pour chaque membre titulaire des collèges de l'observatoire départemental d' aménagement commercial prévus aux articles A. 751-1 à A. 751-4. Le membre suppléant remplace le membre titulaire temporairement absent. Les représentants de l'administration auprès de l'observatoire départemental d' aménagement commercial mentionnés à l'article A. 751-5 peuvent se faire représenter par une personne de leur choix. En cas d'interruption ou de tout autre empêchement définitif du mandat d'un membre de l'observatoire départemental d' aménagement commercial, pour quelque cause que ce soit, un remplaçant est nommé dans les mêmes conditions pour la durée du mandat restant à courir.
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Section 4 : De l'observatoire d'aménagement commercial d'Ile-de-France
Article A751-7
Le collège des élus locaux de l'observatoire d' aménagement commercial d'Ile-de-France est composé comme suit : 1° Dans chaque département autre que Paris : a) Le maire de la commune chef-lieu ; b) Un maire d'une commune de moins de 2 000 habitants ou, s'il n'en existe pas, le maire de la commune dont la population se rapproche le plus de ce seuil, désigné par le préfet du département ; c) Un conseiller général, autre que les maires mentionnés ci-dessus, désigné par la commission permanente du conseil général ; 2° A Paris : Trois conseillers d'arrondissement issus d'arrondissements différents désignés par le conseil de Paris ; 3° Trois conseillers régionaux désignés par la commission permanente du conseil régional.
Article A751-8
Le collège des représentants des activités commerciales et artisanales, nommés par le préfet de la région Ile-de-France après consultation des organisations professionnelles concernées, est composé comme suit :1° Deux représentants des entreprises exploitantes de grands magasins ou magasins multi-commerces ;2° Deux représentants des entreprises exploitantes d'hypermarchés ou de supermarchés ;3° Deux représentants des entreprises exploitantes de commerces spécialisés de grande surface ;4° Un représentant d'une société gestionnaire d'un centre commercial ;5° Trois exploitants de magasins de détail d'une surface de vente inférieure à 300 mètres carrés ou de commerces non sédentaires, dont un représentant des entreprises immatriculées au répertoire des métiers.
Article A751-9
Le collège des représentants des chambres de commerce et d'industrie et des chambres de métiers et de l'artisanat est composé comme suit : 1° Six représentants désignés par la chambre régionale de commerce et d'industrie de Paris - Ile-de-France parmi ses membres élus ; 2° Trois représentants désignés par la chambre régionale de métiers et de l'artisanat d'Ile-de-France parmi ses membres élus.
Article A751-10
Six personnalités qualifiées sont nommées par le préfet de région, dont deux représentants au moins des associations de consommateurs.
Article A751-11
L'administration est représentée par :
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1° Le secrétaire général aux affaires régionales ou son représentant ;
2° Le responsable des services territorialement compétents chargés du commerce ou son représentant ;
3° Le directeur des services territorialement compétents chargés de la concurrence et de la consommation ou son représentant ;
4° Le directeur des services territorialement compétents chargés de l'urbanisme et de l'environnement ou son représentant ;
5° Le directeur régional de l'Institut national de la statistique et des études économiques ou son représentant.
Article A751-12
Un membre suppléant est désigné dans les mêmes conditions pour chaque membre titulaire des collèges de l'observatoire d' aménagement commercial d'Ile-de-France, prévus aux articles A. 751-7 à A. 751-10. Le membre suppléant remplace le membre titulaire temporairement absent. Les représentants de l'administration auprès de l'observatoire d' aménagement commercial d'Ile-de-France, mentionnés à l'article A. 751-11, peuvent se faire représenter par une personne de leur choix. En cas d'interruption ou de tout autre empêchement définitif du mandat d'un membre de l'observatoire d' aménagement commercial d'Ile-de-France, pour quelque cause que ce soit, un remplaçant est nommé dans les mêmes conditions pour la durée du mandat restant à courir.
Section 5 : Des schémas de développement commercial
Section 6 : De l'Observatoire national du commerce
Chapitre II : De l'autorisation commerciale
Section 1 : Des projets soumis à autorisation
Section 2 : De la décision de la commission départementale
Sous-section 1 : De la demande d'autorisation
Article A752-1
La demande d'autorisation préalable prévue aux articles L. 751-1, L. 752-1 et L. 752-2 du code de
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commerce est présentée selon les modalités fixées à l'annexe 1 de l'annexe 7-8 au présent livre.
Elle est accompagnée :
1° Des renseignements prévus à l'annexe 2 ;
2° D'une fiche établie selon le modèle prévu à l'annexe 3 ;
3° D'un plan indicatif des commerces concernés faisant apparaître leur surface de vente, le cas échéant avant et après l'extension sollicitée. Pour les magasins de plus de 300 mètres carrés de surface de vente, ce plan devra en outre faire apparaître les espaces consacrés à l'exposition des marchandises, à la circulation de la clientèle ou du personnel, et aux caisses ;
4° De cartes ou de plans présentant :
-l'organisation du projet sur la ou les parcelles de terrain concernées : emplacements et superficies des bâtiments, des espaces destinés au stationnement des véhicules, au stockage des produits, aux espaces verts, à la manœuvre des véhicules de livraison...
-la localisation du projet sur une carte au 1 / 25 000 ;
-la desserte du lieu d'implantation du projet par les transports en commun, par les voies piétonnes et les pistes cyclables ;
-les principales voies et les aménagements routiers desservant le projet ;
-l'environnement du projet, sur une distance d'environ 1 kilomètre à partir de son site d'implantation ;
-l'inscription du projet dans son quartier au moyen d'une vue récente réalisée par voie aérienne ou par satellite ;
-dans le cas de projets envisagés dans ou à proximité d'une zone commerciale, le plan de cette zone ;
-les limites de la zone de chalandise, le découpage par sous-zone en fonction des modes de transport utilisés pour l'accès au projet et les principaux pôles d'activité de cette zone générant des flux de déplacement ;
5° D'une présentation visuelle du projet, notamment d'un document graphique permettant d'apprécier l'insertion du projet de construction par rapport aux constructions avoisinantes et aux paysages, son impact visuel ainsi que le traitement des accès et du terrain.
Les cartes et plans mentionnés ci-dessus sont fournis aux formats A 4 ou A 3, sauf nécessité de production de documents sous un format supérieur.
Le dossier de demande est transmis en douze exemplaires ou adressé par voie électronique au secrétariat de la commission départementale d'aménagement commercial. Lorsque la zone de chalandise dépasse les limites du département, un nombre supplémentaire d'exemplaires correspondant au nombre d'élus et de personnalités qualifiées appelés à compléter la composition de la commission est fourni.
Article A752-2
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Le secteur d'activité mentionné à la seconde phrase du 3° du I de l'article L. 752-1 du code de commerce comprend les activités correspondant aux classe et groupe suivants de la nomenclature d'activités française (NAF rév. 2) annexée au décret n° 2007-1888 susvisé :
- classe 47. 11 : commerce de détail en magasins non spécialisés à prédominance alimentaire ;
- groupe 47-2 : commerce de détail alimentaire en magasin.
Article A752-3
Le secteur d'activité visé au 2° de l'article R. 752-3 du code de commerce comprend les activités pour l'exercice desquelles une autorisation d'exploitation commerciale est requise et qui ne sont pas mentionnées à l'article précédent.
Sous-section 2 : De la procédure d'autorisation
Sous-section 3 : Dispositions diverses
Section 3 : Du recours contre la décision de la commission départementale
Section 4 : Des contrats passés à l'occasion de la réalisation d'un projet autorisé
Section 5 : Des sanctions
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Partie Arrêtés
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce
TITRE VI : Des marchés d'intérêt national et des manifestations commerciales
Chapitre Ier : Des marchés d'intérêt national
Section 1 : Dispositions générales
Article A761-1
Le dossier type de demande de classement en marché d'intérêt national contient, outre la délibération du conseil régional intéressé, les pièces suivantes : 1° La délibération de la collectivité territoriale ou de l'établissement public de coopération intercommunale requérant l'implantation du marché d'intérêt national sur son territoire et décidant du mode d'aménagement et de gestion dudit marché ; 2° Dans le cas où ladite collectivité ou établissement choisit de déléguer l'aménagement ou la gestion, ou l'aménagement et la gestion, du marché à une personne morale, elle joint au dossier le règlement de consultation, le cahier des charges fixant les droits et obligations du futur délégataire et, notamment, son mode de rémunération ; 3° Un rapport économique et financier intégrant un plan de financement et une étude de viabilité du site avec un bilan prévisionnel ; 4° Un descriptif du site au regard, notamment, de sa compatibilité avec les documents d'urbanisme en vigueur ; 5° Un plan de localisation du marché laissant apparaître, notamment, les dessertes routières et ferroviaires. Le dossier est adressé au préfet de région, qui le transmet aux ministres de tutelle avec son avis.
Article A761-2
Le dossier type de demande de déclassement anticipé du marché d'intérêt national contient, outre la délibération du conseil régional intéressé, les pièces suivantes : 1° La délibération de la commune ou de l'établissement public de coopération intercommunale sur le territoire desquels est implanté le marché d'intérêt national ; 2° Un rapport économique et financier exposant les motifs de la demande, notamment une gestion déficitaire dudit marché ou le constat que celui-ci n'est plus conforme aux dispositions d'organisation générale édictées par les articles R. 761-13 et suivants. Le dossier est adressé au préfet de région, qui le transmet aux ministres de tutelle avec son avis.
Article A761-3
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Le gestionnaire d'un marché d'intérêt national transmet aux communes et aux établissements publics de coopération intercommunale sur le territoire desquels est implanté le marché, au conseil régional et au préfet les comptes rendus d'activité et financiers suivants : 1° Le bilan de l'année écoulée et un bilan comptable prévisionnel de l'année à venir ; 2° Le compte de résultats de l'année écoulée et un compte de résultats prévisionnel de l'année à venir ; 3° Une analyse détaillée des charges et des produits ainsi que des effectifs employés ; 4° La capacité d'autofinancement, le plan de financement et leur analyse détaillée ; 5° La situation de l'actif réalisable et disponible et du passif exigible ; 6° Un budget prévisionnel des investissements de l'année à venir ; 7° Le cas échéant, un plan quinquennal des investissements à réaliser sur le marché accompagné du plan de financement correspondant ; 8° Un tableau fixant les redevances et contributions annuelles de toute nature à la charge des occupants du marché ; 9° Un tableau montrant l'évolution desdites redevances et contributions annuelles depuis dix ans ; 10° Une estimation annuelle du chiffre d'affaires et des emplois des entreprises installées sur le marché.
Article A761-4
Les centres du service des nouvelles des marchés sont chargés du recueil, du traitement et de la diffusion d'informations économiques et statistiques relatives aux prix et aux volumes des transactions réalisées sur les marchés d'intérêt national dont le suivi est, compte tenu des volumes précités, inscrit au volet national du programme annuel du service. Les centres du service des nouvelles des marchés peuvent également assurer le suivi d'autres marchés dans le cadre du volet régional du programme annuel du service.
Article A761-5
Les gestionnaires des marchés d'intérêt national concernés sont consultés par le service des nouvelles des marchés préalablement à l'élaboration de la liste des sites à inscrire aux différents volets du programme annuel du service.
Article A761-6
Afin d'établir les cotations publiées par le ministère de l'agriculture et de la pêche, les agents des centres du service des nouvelles des marchés constatent, avec le concours des usagers, les prix pratiqués sur les emplacements de vente des marchés mentionnés à l'article A. 761-4.A cet effet, les agents des centres du service des nouvelles des marchés peuvent se faire communiquer tout document permettant la constatation des prix. Ils peuvent être assistés dans leur mission par les gestionnaires des marchés.
Article A761-7
Les informations relatives aux volumes des transactions réalisées sur les marchés d'intérêt national sont transmises par leurs gestionnaires au centre concerné du service des nouvelles des marchés, selon des modalités à convenir pour chaque marché entre son gestionnaire et le chef du centre.
Article A761-8
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Le service des nouvelles des marchés tient à la disposition des gestionnaires des marchés d'intérêt national, pour leur propre usage, les informations économiques et statistiques dont ils disposent.
Section 2 : Du périmètre de référence et des interdictions destinées à protéger les marchés d'intérêt national
Sous-section 1 : Du périmètre de référence
Article A761-9
Le dossier de création d'un périmètre de référence comprend : 1° Un plan de localisation du périmètre de référence comprenant les communes soumises aux interdictions édictées par les articles L. 761-4 à L. 761-6 ; 2° La liste des produits protégés qui sont vendus sur le marché d'intérêt national ; 3° L'avis de chaque commune ou de chaque établissement public de coopération intercommunale compris dans ledit périmètre ; 4° L'avis de la ou des chambres de commerce et d'industrie, de la ou des chambres des métiers et de l'artisanat et de la ou des chambres d'agriculture dans le ressort desquelles est situé le périmètre de référence ; 5° L'avis de l'organisme gestionnaire du marché d'intérêt national s'il est d'ores et déjà désigné. Le dossier est adressé au préfet de région, qui le transmet aux ministres de tutelle avec son avis.
Article A761-10
Le dossier de réduction d'un périmètre de référence comprend : 1° Un plan de localisation du périmètre de référence comprenant les communes restant soumises aux interdictions édictées par les articles L. 761-4 à L. 761-6 et laissant apparaître les communes qui en sont exclues ; 2° Une liste des communes maintenues dans ledit périmètre et celles qui en sont retirées ; 3° L'avis de l'organisme gestionnaire du marché d'intérêt national concerné ; 4° L'avis de la ou des chambres de commerce et d'industrie, de la ou des chambres des métiers et de l'artisanat et de la ou des chambres d'agriculture dans le ressort desquelles est situé le périmètre de référence. Le dossier de suppression anticipée d'un périmètre de référence comprend : 1° L'avis de l'organisme gestionnaire du marché d'intérêt national concerné ; 2° L'avis de la ou des chambres de commerce et d'industrie, de la ou des chambres des métiers et de l'artisanat et de la ou des chambres d'agriculture dans le ressort desquelles est situé le périmètre de référence. Le dossier est adressé au préfet de région, qui le transmet aux ministres de tutelle avec son avis.
Sous-section 2 : Des interdictions destinées à protéger les marchés d'intérêt national
Article A761-11
Le dossier de demande d'une dérogation mentionnée au premier alinéa de l'article R. 761-12
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contient des éléments démontrant que les besoins de la clientèle du requérant ne sont pas satisfaits par le circuit de distribution existant et que l'offre que celui-ci propose répond auxdits besoins. Il est accompagné notamment d'une étude de marché approfondie illustrée, le cas échéant, de cartes et d'éléments statistiques. Le demandeur d'une dérogation adresse simultanément un duplicata de sa requête au gestionnaire du marché concerné, qui rend au préfet chargé de la police du marché, ou au préfet de la région Ile-de-France s'agissant du Marché d'intérêt national de Paris-Rungis, un avis motivé dans un délai d'un mois à compter de sa saisine.
Article A761-13
Le secrétariat du comité est assuré par un fonctionnaire de la préfecture de la région Ile-de-France. Il est chargé de la fonction de rapporteur. Le commissaire à l'aménagement du Marché d'intérêt national de Paris-Rungis assiste, en tant que de besoin, aux réunions du comité sans voix délibérative.
Article A761-14
Le comité consultatif est chargé de donner un avis au préfet de la région Ile-de-France et statue dans un délai de cinq semaines dès réception du dossier complet de la demande de dérogation. Le comité peut auditionner le requérant et toute personne qu'il juge utile à l'instruction de la demande de dérogation. Les avis du comité sont motivés et sont pris à la majorité des membres présents. En cas de partage, la voix du président est prépondérante. Les avis du comité font l'objet d'un procès-verbal établi en double exemplaire et transmis par le président sous une semaine au préfet de région. Un original est conservé par le secrétariat du comité pour constituer le registre de ses avis.
Section 3 : De l'organisation générale des marchés d'intérêt national
Sous-section 1 : Dispositions communes à tous les marchés d'intérêt national
Article A761-15
Le conseil de discipline est présidé par un représentant du gestionnaire ; le directeur départemental de la concurrence, de la consommation et de la répression des fraudes (DDCCRF), le directeur départemental de l'agriculture et de la forêt et, le cas échéant, le directeur régional de l'agriculture et de la forêt, ou leurs représentants, y siègent de droit. Ledit conseil comprend deux représentants des opérateurs et usagers, désignés dans les conditions fixées par le règlement intérieur. Le conseil de discipline auditionne toute personne qu'il juge utile, et notamment un officier de police judiciaire ou son représentant.
Article A761-16
Un comité technique consultatif est créé auprès du gestionnaire du marché, qui pourvoit à son
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secrétariat et fixe l'ordre du jour de ses séances. Il comprend vingt-cinq membres au maximum. Il est composé de représentants : 1° Des administrations publiques ; 2° Des producteurs ; 3° Des opérateurs ; 4° Des usagers. Les représentants de la première catégorie sont désignés par le préfet chargé de la police du marché. Ceux des trois dernières catégories sont nommés par le gestionnaire, sur la proposition des organisations professionnelles les plus représentatives. Le fonctionnement du comité technique consultatif est défini par le règlement intérieur des marchés d'intérêt national.
Sous-section 2 : Dispositions applicables aux marchés d'intérêt national installés sur le domaine public
Sous-section 3 : Dispositions applicables aux marchés d'intérêt national installés sur le domaine privé d'une collectivité territoriale et à ceux installés sur des immeubles appartenant à des personnes privées
Chapitre II : Des manifestations commerciales
Article A762-1
Pour l'application du présent chapitre, les données déclarées sont conformes aux définitions suivantes :
1° Est considérée comme session précédente de la même manifestation celle qui n'a pas fait l'objet de modifications substantielles affectant la liste des produits ou services présentés, le nombre de visiteurs attendus et ayant la même localisation.
2° La fréquentation est le nombre moyen d'entrées journalières sur le site de la manifestation au cours de ses jours officiels d'ouverture quel que soit le motif d'entrée.
Les autres données déclarées répondent aux définitions de la norme NF ISO 25639-1 de janvier 2009 "Terminologie du secteur des foires, salons et congrès ou manifestations commerciales. - Partie 1 : vocabulaire" ou à des spécifications reconnues équivalentes.
Article A762-2
La demande d'enregistrement d'un parc d'exposition prévue à l'article R. 762-1, transmise en deux exemplaires, est conforme à l'annexe I de l'annexe 7-10 au présent livre. Elle comprend, en outre : 1° Un plan du parc et de ses installations fixes et permanentes ; 2° Dans l'hypothèse où, au sein de la surface close, se tiennent des activités permanentes autres que celles de parc d'exposition : une fiche précisant la nature de ces activités, les surfaces occupées et le nombre de personnes occupées à temps plein par ces activités. Le récépissé d'enregistrement du parc transmis par le préfet, prévu à l'article R. 762-2, est conforme à l'annexe VII de l'annexe 7-10 au présent livre. En cas de modification des éléments de la demande initiale d'enregistrement, son exploitant en fait sans délai
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déclaration au préfet. Le récépissé d'enregistrement modificatif transmis par le préfet est conforme à l'annexe VIII de l'annexe 7-10 au présent livre.
Article A762-3
La déclaration du programme de manifestations se tenant dans un parc d'exposition enregistré, prévue à l'article R. 762-5, établie à partir des éléments recueillis auprès des organisateurs desdites manifestations et transmise en deux exemplaires, est conforme à l'annexe II de l'annexe 7-10 au présent livre.
Les caractéristiques chiffrées relatives à la dernière session, portant sur la surface nette de la manifestation, le nombre d'exposants, le nombre de visites, la fréquentation ainsi que, s'agissant des salons professionnels tels que définis à l'article L. 762-2, le nombre de visiteurs, sont certifiées par un organisme dans les conditions fixées à l'article A. 762-9.
Les caractéristiques chiffrées relatives à la dernière session, certifiées par un organisme mentionné à l'article A. 762-9, portant sur le nombre de visiteurs professionnels, le nombre et la surface nette occupée par les exposants étrangers et le nombre de visiteurs étrangers sont fournies à titre facultatif par le déclarant.
Par dérogation, lorsque la surface nette de la manifestation est inférieure à 1 000 mètres carrés, la certification de ses caractéristiques chiffrées peut être réalisée par l'exploitant du parc qui l'accueille.
Dans l'hypothèse où la manifestation se tient pour la première fois dans le parc d'exposition considéré, ses caractéristiques chiffrées sont données sous forme d'estimations. Le récépissé de déclaration, transmis par le préfet, prévu à l'article R. 762-6 est conforme à l'annexe IX de l'annexe 7-10 au présent livre.
La déclaration modificative du programme de manifestations se tenant dans un parc d'exposition enregistré, établie à partir des éléments recueillis auprès des organisateurs desdites manifestations et transmise en deux exemplaires, est conforme à l'annexe III de l'annexe 7-10 au présent livre.S'agissant des modifications apportées à une manifestation déclarée dans le programme initial, seules la dénomination initiale de la manifestation et les caractéristiques modifiées sont déclarées. Le récépissé de déclaration modificative, transmis par le préfet, est conforme à l'annexe X de l'annexe 7-10 au présent livre.
Article A762-4
La déclaration prévue à l'article R. 762-10, transmise en deux exemplaires, est conforme, selon le cas, à l'annexe IV ou à l'annexe V de l'annexe 7-10 au présent livre. Le récépissé de déclaration transmis par le préfet, prévu à l'article R. 762-10, est conforme à l'annexe XI de l'annexe 7-10 au présent livre. Les caractéristiques chiffrées déclarées obéissent aux obligations de fourniture et de certification énoncées à l'article A. 762-3. La déclaration modificative des caractéristiques d'un salon professionnel se tenant hors d'un parc d'exposition enregistré est conforme à l'annexe VI de l'annexe 7-10 au présent livre. Seules la dénomination initiale de la manifestation, la date du récépissé de déclaration initiale et les caractéristiques modifiées sont déclarées. Le récépissé de déclaration modificative, transmis par le préfet, est conforme à l'annexe XII de l'annexe 7-10 au présent livre.
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Article A762-5
Le récépissé de déclaration du programme annuel, prévu à l'article R. 762-6, est affiché dès réception par l'exploitant du parc à l'entrée principale de celui-ci et de façon qu'il soit librement accessible au public jusqu'au 31 décembre de l'exercice auquel il se rapporte. Il en est de même des récépissés des déclarations modificatives du programme annuel.L'organisateur d'un salon professionnel qui a déclaré sa manifestation en application de l'article L. 762-2 affiche pendant toute la durée de ladite manifestation, à l'entrée principale de celle-ci et de façon à ce qu'elles soient librement accessibles au public, les copies de la déclaration, du récépissé de déclaration et, le cas échéant, du récépissé de déclaration modificative.
Article A762-6
Copie des récépissés de déclarations prévues aux articles R. 762-6 et R. 762-10 est adressée par le préfet à la chambre de commerce et d'industrie dans le ressort de laquelle doit se tenir la manifestation.
Article A762-7
Dès transmission du récépissé de déclaration au responsable du parc d'exposition ou à l'organisateur du salon professionnel se tenant en dehors d'un parc d'exposition, le préfet communique au ministre chargé du commerce le second exemplaire des déclarations prévues aux articles R. 762-5 et R. 762-10 et, le cas échéant, des déclarations modificatives.
Article A762-8
Les déclarations mentionnées aux articles R. 762-5 et R. 762-10 peuvent être effectuées par voie électronique par l'intermédiaire du site internet public du ministère chargé du commerce. Il est accusé réception de ces déclarations par la même voie. Cette déclaration par voie électronique donne également lieu à délivrance des récépissés prévus aux articles R. 762-6 et R. 762-10.
Article A762-9
La certification des caractéristiques chiffrées soumises à déclaration d'une manifestation commerciale est effectuée par un organisme qui remplit les conditions suivantes :
- l'organisme est une personne physique ou morale qui n'entretient pas d'autre relation commerciale avec l'organisateur d'une manifestation commerciale que le service de certification des caractéristiques chiffrées de cette manifestation ;
- l'organisme effectue les opérations définies à l'annexe XIII de l'annexe 7-10 du présent livre et répond aux exigences des normes NF ISO 25639-1 de janvier 2009 "Terminologie du secteur des foires, salons et congrès ou manifestations commerciales. - Partie 1 : vocabulaire" et NF ISO 25639-2 de janvier 2009 "Terminologie du secteur des foires, salons et congrès ou manifestations commerciales. - Partie 2 : méthodes de comptage à des fins statistiques ou à des spécifications
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reconnues équivalentes".
- l'organisme emploie les personnes qualifiées aptes à réaliser les opérations de contrôle des chiffres déterminées à l'annexe XIII de l'annexe 7-10 du présent livre. Il peut sous-traiter certains contrôles à des personnes ayant les compétences nécessaires.
L'organisme qui certifie les caractéristiques chiffrées des manifestations commerciales met en place et applique un système qualité qui permet de garantir le respect des exigences définies par le présent article et celles décrites en annexe. Il apporte aux organisateurs de manifestation la preuve que son système qualité répond à ces exigences.
Article A762-10
Est autorisée la mise en œuvre, par le ministère chargé du commerce, d'un traitement automatisé des données relatives aux parcs d'exposition et aux manifestations commerciales déclarés en application du présent chapitre.
Article A762-11
Le traitement automatisé a pour finalité d'assurer : 1° La télédéclaration des manifestations commerciales mentionnées à l'article R. 762-4 ; 2° La gestion des données relatives aux parcs d'exposition et aux manifestations commerciales déclarés en application des articles R. 762-1 à R. 762-3, R. 762-5 à R. 762-12 ; 3° La mise à disposition auprès du public, au moyen d'un site internet, de données relatives aux parcs d'exposition et aux manifestations commerciales déclarés.
Article A762-12
Les catégories de données enregistrées sont les suivantes : I. # Données relatives à un parc d'exposition : 1° Données à caractère non personnel relatives aux caractéristiques du parc ; 2° Données à caractère personnel relatives à l'exploitant du parc, personne physique : nom et prénom(s), coordonnées téléphoniques et électroniques, adresse et numéro unique d'identification (SIRET) ; 3° Données à caractère personnel relatives au responsable de la gestion du parc et, le cas échéant, au responsable de la sécurité : nom, prénom(s), coordonnées téléphoniques et électroniques. II. # Données relatives à une manifestation commerciale : 1° Données à caractère non personnel relatives aux caractéristiques de la manifestation ; 2° Données à caractère personnel relatives à l'organisateur de la manifestation, personne physique : nom et prénom(s), coordonnées téléphoniques et électroniques, adresse et numéro unique d'identification (SIRET) ; 3° Données à caractère personnel relatives à la personne responsable de la manifestation, personne physique : nom, prénom(s), coordonnées téléphoniques et électroniques ; 4° Données à caractère personnel relatives à l'organisme, personne physique, chargé de la certification des caractéristiques chiffrées de la manifestation : nom et prénom(s), adresse et numéro unique d'identification (SIRET) ; 5° Données à caractère personnel relatives au télédéclarant de la manifestation : login et mot de passe d'accès à l'application de télédéclaration. III. # Données à caractère personnel relatives à l'agent de la préfecture chargé de la gestion des récépissés d'enregistrement de parcs d'exposition et de déclaration de manifestations commerciales : nom et prénom(s), coordonnées électroniques et téléphoniques. IV. # Données à caractère personnel relatives aux agents de la direction chargée du commerce du ministère chargé du commerce : coordonnées électroniques et téléphoniques, login et mot de passe d'accès à l'application de télédéclaration.
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Article A762-13
Les données faisant l'objet d'une publication sur un site internet sont les suivantes : I. # Données relatives à un parc d'exposition : Les données mentionnées aux 1° et 2° du I de l'article A. 762-12. II. # Données relatives à une manifestation commerciale : Les données mentionnées aux l° et 2° du II de l'article A. 762-12. III. # Données relatives aux agents chargés d'être les interlocuteurs des télédéclarants, en matière d'exercice du droit d'accès et de rectification, au sein de la direction chargée du commerce du ministère chargé du commerce : coordonnées électroniques et téléphoniques.
Article A762-14
Seuls sont habilités à traiter les données incluses dans le traitement automatisé, dans les limites de leurs missions, les agents de préfecture et de la direction chargée du commerce du ministère chargé du commerce.
Article A762-15
Peuvent obtenir communication, en ligne ou sur demande écrite auprès de la direction mentionnée à l'article A. 762-14, des données du traitement automatisé qui les concernent : 1° L'exploitant d'un parc d'exposition enregistré ; 2° L'organisateur d'une manifestation commerciale déclarée ; 3° L'organisme de certification visé à l'article A. 762-12.
Article A762-16
Les droits d'accès et de rectification prévus aux articles 39 et 40 de la loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés s'exercent auprès de la direction chargée du commerce du ministère chargé du commerce.
Article A762-17
Les données à caractère personnel sont conservées sur support informatique pendant une durée de dix ans à compter de la date à laquelle est intervenue leur dernière modification. Les données à caractère non personnel sont conservées sur support informatique pendant une durée de trente ans à compter de la date à laquelle est intervenue leur dernière modification.
Article A762-18
Le droit d'opposition prévu à l'article 38 de la loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés ne s'applique pas au traitement automatisé.
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Partie Arrêtés
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce
ANNEXE 7-1 (ANNEXE AUX ARTICLES A. 712-27 ET A. 712-28)
Article Annexe I
SECTIONS COMPTABLES À OUVRIR AU SEIN DES DIFFÉRENTS SERVICES BUDGÉTAIRES
Service général. Néant.
Service formation. Collecte et gestion de la taxe d'apprentissage.
Service Ports. Une section par concession portuaire.
Service Aéroports. Une section par concession aéroportuaire.
Service Aménagements. Une section par opération d'aménagement (*).
Service Collecte et gestion de la PEEC. Collecte.
Service Divers. Une section par opération (*).
(*) Si l'opération en question présente une importance significative.
Article Annexe II
STRUCTURE DES BUDGETS PRIMITIFS OU RECTIFICATIFS ET DOCUMENTS À PRÉSENTER AVEC CES BUDGETS PAR LES ÉTABLISSEMENTS DU RÉSEAU DES CHAMBRES DE COMMERCE ET D'INDUSTRIE
Les budgets primitifs et rectificatifs des établissements du réseau des chambres de commerce et
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d'industrie sont constitués des documents suivants :
1. Pour l'ensemble de l'établissement et pour chacun de ses services budgétaires, ainsi que pour les concessions portuaires ou aéroportuaires de l'Etat : # un état des opérations de fonctionnement ; # un état de la capacité d'autofinancement ; # un état des opérations en capital.
2. Pour l'ensemble de l'établissement : 2.1. Des tableaux annexes : # tableau des prestations et contributions interservices ; # tableau des variations pendant l'exercice des prêts et avances interservices ; # tableaux des effectifs et de la masse salariale ; # tableau du fonds de roulement. 2.2. Un feuillet récapitulatif d'approbation.
Article Annexe III
STRUCTURE DES BUDGETS EXÉCUTÉS ET DOCUMENTS À PRÉSENTER AVEC CES BUDGETS PAR LES ÉTABLISSEMENTS DU RÉSEAU DES CHAMBRES DE COMMERCE ET D'INDUSTRIE
Les budgets exécutés des établissements du réseau des chambres de commerce et d'industrie sont constitués des documents suivants :
1. Pour l'ensemble de l'établissement.
1.1. Un feuillet récapitulatif d'approbation. 1.2.1. Un état des opérations de fonctionnement. 1.2.2. Un état de la capacité d'autofinancement. 1.2.3. Un état des opérations en capital. 1.3. Des tableaux annexes : # tableau des prestations et contributions interservices ; # tableau des variations pendant l'exercice des prêts et avances interservices ; # tableau des contributions et autres concours consentis à des tiers ; # tableau des garanties et cautions accordées ; # tableau des filiales et participations ; # tableau des informations relatives aux entités liées à l'établissement ; # tableau de la structure de l'endettement ; # tableau des collectes ; # tableaux des effectifs et de la masse salariale ; # tableau du fonds de roulement. 1.4.1. Un bilan. 1.4.2. Un compte de résultat (*). 1.4.3. Une annexe au sens des comptes annuels. 1.4.4. Un tableau de financement.
2. Pour chacun de ses services budgétaires et des concessions portuaires ou aéroportuaires de l'Etat :
# un état des opérations de fonctionnement ; # un état de la capacité d'autofinancement ; # un état des opérations en capital.
3. Pour le service budgétaire "Collecte et gestion de la PEEC " et pour chaque concession portuaire ou aéroportuaire de l'Etat :
# une situation patrimoniale ; # un tableau de financement ; # un tableau du fonds de roulement. (*) L'état des opérations de fonctionnement étant de présentation strictement identique au compte de résultat, ce dernier ne figure ici que pour mémoire, sans que sa production ne soit effectivement requise pour l'approbation des budgets.
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Partie Arrêtés
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce
ANNEXE 7-2 (ANNEXE AUX ARTICLES A. 713-8 ET A. 713-11)
Article Annexe 7-2
ÉLECTION DES MEMBRES DES CHAMBRES DE COMMERCE ET D'INDUSTRIE
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Enveloppe de vote
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Enveloppe d'acheminement du vote : positionnement des mentions obligatoires
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Présentation de la zone d'affranchissement Optima Réponse
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Partie Arrêtés
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce
ANNEXE 7-3 (ANNEXE AUX ARTICLES A. 713-17 ET A. 723-23)
Article Annexe 7-3
ÉLECTION DES DÉLÉGUÉS CONSULAIRES
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Présentation de la zone d'affranchissement Optima Réponse
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Enveloppe d'acheminement du vote : positionnement des mentions obligatoires
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Enveloppe de vote
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Partie Arrêtés
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce
ANNEXE 7-4 (ANNEXE À L'ARTICLE A. 713-26)
Article Annexe 7-4
Commerce
10.13B Charcuterie. 10.71B Cuisson de produits de boulangerie. 10.71C Boulangerie et boulangerie-pâtisserie. 10.71D Pâtisserie. 35.14Z Commerce d'électricité. 35.23Z Commerce de combustibles gazeux par conduites. 45.11Z Commerce de voitures et de véhicules automobiles légers. 45.19Z Commerce d'autres véhicules automobiles. 45.31Z Commerce de gros d'équipements automobiles. 45.32Z Commerce de détail d'équipements automobiles. 45.40Z Commerce et réparation de motocycles. 46.12A Centrales d'achat de carburant. 46.17A Centrales d'achat alimentaires. 46.19A Centrales d'achat non alimentaires. 46.21Z Commerce de gros (commerce interentreprises) de céréales, de tabac non manufacturé, de semences et d'aliments pour le bétail. 46.22Z Commerce de gros (commerce interentreprises) de fleurs et plantes. 46.23Z Commerce de gros (commerce interentreprises) d'animaux vivants. 46.24Z Commerce de gros (commerce interentreprises) de cuirs et peaux. 46.31Z Commerce de gros (commerce interentreprises) de fruits et légumes. 46.32A Commerce de gros (commerce interentreprises) de viandes de boucherie. 46.32B Commerce de gros (commerce interentreprises) de produits à base de viande. 46.32C Commerce de gros (commerce interentreprises) de volailles et gibier. 46.33Z Commerce de gros (commerce interentreprises) de produits laitiers, œufs, huiles et matières grasses comestibles. 46.34Z Commerce de gros (commerce interentreprises) de boissons. 46.35Z Commerce de gros (commerce interentreprises) de produits à base de tabac. 46.36Z Commerce de gros (commerce interentreprises) de sucre, chocolat et confiserie. 46.37Z Commerce de gros (commerce interentreprises) de café, thé, cacao et épices. 46.38A Commerce de gros (commerce interentreprises) de poissons, crustacés et mollusques. 46.38B Commerce de gros (commerce interentreprises) alimentaire spécialisé divers. 46.39A Commerce de gros (commerce interentreprises) de produits surgelés. 46.39B Commerce de gros (commerce interentreprises) alimentaire non spécialisé. 46.41Z Commerce de gros (commerce interentreprises) de textiles. 46.42Z Commerce de gros (commerce interentreprises) d'habillement et de chaussures. 46.43Z Commerce de gros (commerce interentreprises) d'appareils électroménagers. 46.44Z Commerce de gros (commerce interentreprises) de vaisselle, verrerie et produits d'entretien. 46.45Z Commerce de gros (commerce interentreprises) de parfumerie et de produits de beauté. 46.46Z Commerce de gros (commerce interentreprises) de produits pharmaceutiques. 46.47Z Commerce de gros (commerce interentreprises) de meubles, de tapis et d'appareils d'éclairage. 46.48Z Commerce de gros (commerce interentreprises) d'articles d'horlogerie et de bijouterie. 46.49Z Commerce de gros (commerce interentreprises) d'autres biens domestiques. 46.51Z Commerce de gros (commerce interentreprises) d'ordinateurs, d'équipements informatiques périphériques et de logiciels. 46.52Z
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Commerce de gros (commerce interentreprises) de composants et d'équipements électroniques et de télécommunication. 46.61Z Commerce de gros (commerce interentreprises) de matériel agricole. 46.62Z Commerce de gros (commerce interentreprises) de machines-outils. 46.63Z Commerce de gros (commerce interentreprises) de machines pour l'extraction, la construction et le génie civil. 46.64Z Commerce de gros (commerce interentreprises) de machines pour l'industrie textile et l'habillement. 46.65Z Commerce de gros (commerce interentreprises) de mobilier de bureau. 46.66Z Commerce de gros (commerce interentreprises) d'autres machines et équipements de bureau. 46.69A Commerce de gros (commerce interentreprises) de matériel électrique. 46.69B Commerce de gros (commerce interentreprises) de fournitures et équipements industriels divers. 46.69C Commerce de gros (commerce interentreprises) de fournitures et équipements divers pour le commerce et les services. 46.71Z Commerce de gros (commerce interentreprises) de combustibles et de produits annexes. 46.72Z Commerce de gros (commerce interentreprises) de minerais et métaux. 46.73A Commerce de gros (commerce interentreprises) de bois et de matériaux de construction. 46.73B Commerce de gros (commerce interentreprises) d'appareils sanitaires et de produits de décoration. 46.74A Commerce de gros (commerce interentreprises) de quincaillerie. 46.74B Commerce de gros (commerce interentreprises) de fournitures pour la plomberie et le chauffage. 46.75Z Commerce de gros (commerce interentreprises) de produits chimiques. 46.76Z Commerce de gros (commerce interentreprises) d'autres produits intermédiaires. 46.77Z Commerce de gros (commerce interentreprises) de déchets et débris. 46.90Z Commerce de gros (commerce interentreprises) non spécialisé. 47.11A Commerce de détail de produits surgelés. 47.11B Commerce d'alimentation générale commerce. 47.11C Supérettes. 47.11D Supermarchés. 47.11E Magasins multi-commerces. 47.11F Hypermarchés. 47.19A Grands magasins. 47.19B Autres commerces de détail en magasin non spécialisé. 47.21Z Commerce de détail de fruits et légumes en magasin spécialisé. 47.22Z Commerce de détail de viandes et de produits à base de viande en magasin spécialisé. 47.23Z Commerce de détail de poissons, crustacés et mollusques en magasin spécialisé. 47.24Z Commerce de détail de pain, pâtisserie et confiserie en magasin spécialisé. 47.25Z Commerce de détail de boissons en magasin spécialisé. 47.26Z Commerce de détail de produits à base de tabac en magasin spécialisé. 47.29Z Autres commerces de détail alimentaires en magasin spécialisé. 47.30Z Commerce de détail de carburants en magasin spécialisé. 47.41Z Commerce de détail d'ordinateurs, d'unités périphériques et de logiciels en magasin spécialisé. 47.42Z Commerce de détail de matériels de télécommunication en magasin spécialisé. 47.43Z Commerce de détail de matériels audio et vidéo en magasin spécialisé. 47.51Z Commerce de détail de textiles en magasin spécialisé. 47.52A Commerce de détail de quincaillerie, peintures et verres en petites surfaces (moins de 400 m²). 47.52B Commerce de détail de quincaillerie, peintures et verres en grandes surfaces (400 m² et plus). 47.53Z Commerce de détail de tapis, moquettes et revêtements de murs et de sols en magasin spécialisé. 47.54Z Commerce de détail d'appareils électroménagers en magasin spécialisé. 47.59A Commerce de détail de meubles. 47.59B Commerce de détail d'autres équipements du foyer. 47.61Z Commerce de détail de livres en magasin spécialisé. 47.62Z Commerce de détail de journaux et papeterie en magasin spécialisé. 47.63Z Commerce de détail d'enregistrements musicaux et vidéo en magasin spécialisé. 47.64Z Commerce de détail d'articles de sport en magasin spécialisé. 47.65Z Commerce de détail de jeux et jouets en magasin spécialisé. 47.71Z Commerce de détail d'habillement en magasin spécialisé. 47.72A Commerce de détail de la chaussure. 47.72B Commerce de détail de maroquinerie et d'articles de voyage. 47.73Z Commerce de détail de produits pharmaceutiques en magasin spécialisé. 47.74Z Commerce de détail d'articles médicaux et orthopédiques en magasin spécialisé. 47.75Z Commerce de détail de parfumerie et de produits de beauté en magasin spécialisé. 47.76Z Commerce de détail de fleurs, plantes, graines, engrais, animaux de compagnie et aliments pour ces animaux en magasin spécialisé. 47.77Z Commerce de détail d'articles d'horlogerie et de bijouterie en magasin spécialisé. 47.78A Commerces de détail d'optique. 47.78B Commerces de détail de charbons et combustibles. 47.78C Autres commerces de détail spécialisés divers. 47.79Z Commerce de détail de biens d'occasion en magasin commerce. 47.81Z Commerce de détail alimentaire sur éventaires et marchés commerce. 47.82Z Commerce de détail de textiles, d'habillement et de chaussures sur éventaires et
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marchés. 47.89Z Autres commerces de détail sur éventaires et marchés. 47.91A Vente à distance sur catalogue général. 47.91B Vente à distance sur catalogue spécialisé. 47.99A Vente à domicile. 47.99B Vente par automates et autres commerces de détail hors magasin, éventaires ou marchés nca. 56.10A Restauration traditionnelle. 56.10B Cafétérias et autres libres-services. 56.10C Restauration de type rapide. 56.21Z Services des traiteurs. 56.30Z Débits de boissons.
Industrie
01.11Z Culture de céréales (à l'exception du riz), de légumineuses et de graines oléagineuses. 01.12Z Culture du riz. 01.13Z Culture de légumes, de melons, de racines et de tubercules. 01.14Z Culture de la canne à sucre. 01.15Z Culture du tabac. 01.16Z Culture de plantes à fibres. 01.19Z Autres cultures non permanentes. 01.21Z Culture de la vigne. 01.22Z Culture de fruits tropicaux et subtropicaux. 01.23Z Culture d'agrumes. 01.24Z Culture de fruits à pépins et à noyau. 01.25Z Culture d'autres fruits d'arbres ou d'arbustes et de fruits à coque. 01.26Z Culture de fruits oléagineux. 01.27Z Culture de plantes à boissons. 01.28Z Culture de plantes à épices, aromatiques, médicinales et pharmaceutiques. 01.29Z Autres cultures permanentes. 01.30Z Reproduction de plantes. 01.41Z Elevage de vaches laitières. 01.42Z Elevage d'autres bovins et de buffles. 01.43Z Elevage de chevaux et d'autres équidés. 01.44Z Elevage de chameaux et d'autres camélidés. 01.45Z Elevage d'ovins et de caprins. 01.46Z Elevage de porcins. 01.47Z Elevage de volailles. 01.49Z Elevage d'autres animaux. 01.50Z Culture et élevage associés. 01.70Z Chasse, piégeage et services annexes. 02.10Z Sylviculture et autres activités forestières. 02.20Z Exploitation forestière. 02.30Z Récolte de produits forestiers non ligneux poussant à l'état sauvage. 03.11Z Pêche en mer. 03.12Z Pêche en eau douce. 03.21Z Aquaculture en mer. 03.22Z Aquaculture en eau douce. 05.10Z Extraction de houille. 05.20Z Extraction de lignite. 06.10Z Extraction de pétrole brut. 06.20Z Extraction de gaz naturel. 07.10Z Extraction de minerais de fer. 07.21Z Extraction de minerais d'uranium et de thorium. 07.29Z Extraction d'autres minerais de métaux non ferreux. 08.11Z Extraction de pierres ornementales et de construction, de calcaire industriel, de gypse, de craie et d'ardoise. 08.12Z Exploitation de gravières et sablières, extraction d'argiles et de kaolin. 08.91Z Extraction des minéraux chimiques et d'engrais minéraux. 08.92Z Extraction de tourbe. 08.93Z Production de sel. 08.99Z Autres activités extractives nca. 10.11Z Transformation et conservation de la viande de boucherie. 10.12Z Transformation et conservation de la viande de volaille. 10.13A Préparation industrielle de produits à base de viande. 10.20Z Transformation et conservation de poisson, de crustacés et de mollusques. 10.31Z Transformation et conservation de pommes de terre. 10.32Z Préparation de jus de fruits et légumes. 10.39A Autre transformation et conservation de légumes. 10.39B Transformation et conservation de fruits. 10.41A Fabrication d'huiles et graisses brutes. 10.41B Fabrication d'huiles et graisses raffinées. 10.42Z Fabrication de margarine et graisses comestibles similaires. 10.51A Fabrication de lait liquide et de produits frais. 10.51B Fabrication de beurre. 10.51C Fabrication de fromage. 10.51D Fabrication d'autres produits laitiers. 10.52Z Fabrication de glaces et sorbets. 10.61A Meunerie. 10.61B Autres activités du travail des grains. 10.62Z Fabrication de produits amylacés. 10.71A Fabrication industrielle de pain et de pâtisserie fraîche. 10.72Z Fabrication de biscuits, biscottes et pâtisseries de conservation. 10.73Z Fabrication de pâtes alimentaires. 10.81Z Fabrication de sucre. 10.82Z Fabrication de cacao, chocolat et de produits de confiserie. 10.83Z Transformation du thé et du café. 10.84Z Fabrication de condiments et assaisonnements. 10.85Z Fabrication de plats préparés. 10.86Z Fabrication d'aliments homogénéisés et diététiques. 10.89Z Fabrication d'autres produits alimentaires nca. 10.91Z Fabrication d'aliments pour animaux de ferme. 10.92Z Fabrication d'aliments pour animaux de compagnie. 11.01Z Production de boissons alcooliques distillées. 11.02A Fabrication de vins effervescents. 11.02B Vinification. 11.03Z Fabrication de cidre et de vins de fruits. 11.04Z Production d'autres boissons fermentées non distillées. 11.05Z Fabrication de bière. 11.06Z
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Fabrication de malt. 11.07A Industrie des eaux de table. 11.07B Production de boissons rafraîchissantes. 12.00Z Fabrication de produits à base de tabac. 13.10Z Préparation de fibres textiles et filature. 13.20Z Tissage. 13.30Z Ennoblissement textile. 13.91Z Fabrication d'étoffes à mailles. 13.92Z Fabrication d'articles textiles, sauf habillement. 13.93Z Fabrication de tapis et moquettes. 13.94Z Fabrication de ficelles, cordes et filets. 13.95Z Fabrication de non-tissés, sauf habillement. 13.96Z Fabrication d'autres textiles techniques et industriels. 13.99Z Fabrication d'autres textiles nca. 14.11Z Fabrication de vêtements en cuir. 14.12Z Fabrication de vêtements de travail. 14.13Z Fabrication de vêtements de dessus. 14.14Z Fabrication de vêtements de dessous. 14.19Z Fabrication d'autres vêtements et accessoires. 14.20Z Fabrication d'articles en fourrure. 14.31Z Fabrication d'articles chaussants à mailles. 14.39Z Fabrication d'autres articles à mailles. 15.11Z Apprêt et tannage des cuirs, préparation et teinture des fourrures. 15.12Z Fabrication d'articles de voyage, de maroquinerie et de sellerie. 15.20Z Fabrication de chaussures industrie. 16.10A Sciage et rabotage du bois, hors imprégnation. 16.10B Imprégnation du bois. 16.21Z Fabrication de placage et de panneaux de bois. 16.22Z Fabrication de parquets assemblés industrie. 16.23Z Fabrication de charpentes et d'autres menuiseries. 16.24Z Fabrication d'emballages en bois. 16.29Z Fabrication d'objets divers en bois, fabrication d'objets en liège, vannerie et sparterie. 17.11Z Fabrication de pâte à papier. 17.12Z Fabrication de papier et de carton. 17.21A Fabrication de carton ondulé. 17.21B Fabrication de cartonnages. 17.21C Fabrication d'emballages en papier. 17.22Z Fabrication d'articles en papier à usage sanitaire ou domestique. 17.23Z Fabrication d'articles de papeterie. 17.24Z Fabrication de papiers peints. 17.29Z Fabrication d'autres articles en papier ou en carton. 18.11Z Imprimerie de journaux. 18.12Z Autre imprimerie (labeur). 18.13Z Activités de pré-presse. 18.14Z Reliure et activités connexes. 18.20Z Reproduction d'enregistrements. 19.10Z Cokéfaction. 19.20Z Raffinage du pétrole. 20.11Z Fabrication de gaz industriels. 20.12Z Fabrication de colorants et de pigments. 20.13A Enrichissement et retraitement de matières nucléaires. 20.13B Fabrication d'autres produits chimiques inorganiques de base nca. 20.14Z Fabrication d'autres produits chimiques organiques de base. 20.15Z Fabrication de produits azotés et d'engrais. 20.16Z Fabrication de matières plastiques de base. 20.17Z Fabrication de caoutchouc synthétique. 20.20Z Fabrication de pesticides et d'autres produits agrochimiques. 20.30Z Fabrication de peintures, vernis, encres et mastics. 20.41Z Fabrication de savons, détergents et produits d'entretien. 20.42Z Fabrication de parfums et de produits pour la toilette. 20.51Z Fabrication de produits explosifs. 20.52Z Fabrication de colles. 20.53Z Fabrication d'huiles essentielles. 20.59Z Fabrication d'autres produits chimiques nca. 20.60Z Fabrication de fibres artificielles ou synthétiques. 21.10Z Fabrication de produits pharmaceutiques de base. 21.20Z Fabrication de préparations pharmaceutiques. 22.11Z Fabrication et rechapage de pneumatiques. 22.19Z Fabrication d'autres articles en caoutchouc. 22.21Z Fabrication de plaques, feuilles, tubes et profilés en matières plastiques. 22.22Z Fabrication d'emballages en matières plastiques. 22.23Z Fabrication d'éléments en matières plastiques pour la construction. 22.29A Fabrication de pièces techniques à base de matières plastiques. 22.29B Fabrication de produits de consommation courante en matières plastiques. 23.11Z Fabrication de verre plat. 23.12Z Façonnage et transformation du verre plat. 23.13Z Fabrication de verre creux industrie. 23.14Z Fabrication de fibres de verre. 23.19Z Fabrication et façonnage d'autres articles en verre, y compris verre technique. 23.20Z Fabrication de produits réfractaires. 23.31Z Fabrication de carreaux en céramique. 23.32Z Fabrication de briques, tuiles et produits de construction, en terre cuite. 23.41Z Fabrication d'articles céramiques à usage domestique ou ornemental. 23.42Z Fabrication d'appareils sanitaires en céramique. 23.43Z Fabrication d'isolateurs et pièces isolantes en céramique. 23.44Z Fabrication d'autres produits céramiques à usage technique. 23.49Z Fabrication d'autres produits céramiques. 23.51Z Fabrication de ciment. 23.52Z Fabrication de chaux et plâtre. 23.61Z Fabrication d'éléments en béton pour la construction. 23.62Z Fabrication d'éléments en plâtre pour la construction. 23.63Z Fabrication de béton prêt à l'emploi. 23.64Z Fabrication de mortiers et bétons secs. 23.65Z Fabrication d'ouvrages en fibre-ciment. 23.69Z Fabrication d'autres ouvrages en béton, en ciment ou en plâtre. 23.70Z Taille, façonnage et finissage de pierres. 23.91Z Fabrication de produits abrasifs. 23.99Z Fabrication d'autres produits minéraux non métalliques nca. 24.10Z Sidérurgie.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
24.20Z Fabrication de tubes, tuyaux, profilés creux et accessoires correspondants en acier. 24.31Z Etirage à froid de barres. 24.32Z Laminage à froid de feuillards. 24.33Z Profilage à froid par formage ou pliage. 24.34Z Tréfilage à froid. 24.41Z Production de métaux précieux. 24.42Z Métallurgie de l'aluminium. 24.43Z Métallurgie du plomb, du zinc ou de l'étain. 24.44Z Métallurgie du cuivre. 24.45Z Métallurgie des autres métaux non ferreux. 24.46Z Elaboration et transformation de matières nucléaires. 24.51Z Fonderie de fonte. 24.52Z Fonderie d'acier. 24.53Z Fonderie de métaux légers. 24.54Z Fonderie d'autres métaux non ferreux. 25.11Z Fabrication de structures métalliques et de parties de structures. 25.12Z Fabrication de portes et fenêtres en métal. 25.21Z Fabrication de radiateurs et de chaudières pour le chauffage central. 25.29Z Fabrication d'autres réservoirs, citernes et conteneurs métalliques. 25.30Z Fabrication de générateurs de vapeur, à l'exception des chaudières pour le chauffage central. 25.40Z Fabrication d'armes et de munitions. 25.50A Forge, estampage, matriçage, métallurgie des poudres. 25.50B Découpage, emboutissage. 25.61Z Traitement et revêtement des métaux. 25.62A Décolletage. 25.62B Mécanique industrielle. 25.71Z Fabrication de coutellerie. 25.72Z Fabrication de serrures et de ferrures. 25.73A Fabrication de moules et modèles. 25.73B Fabrication d'autres outillages. 25.91Z Fabrication de fûts et emballages métalliques similaires. 25.92Z Fabrication d'emballages métalliques légers. 25.93Z Fabrication d'articles en fils métalliques, de chaînes et de ressorts. 25.94Z Fabrication de vis et de boulons. 25.99A Fabrication d'articles métalliques ménagers. 25.99B Fabrication d'autres articles métalliques. 26.11Z Fabrication de composants électroniques. 26.12Z Fabrication de cartes électroniques assemblées. 26.20Z Fabrication d'ordinateurs et d'équipements périphériques. 26.30Z Fabrication d'équipements de communication. 26.40Z Fabrication de produits électroniques grand public. 26.51A Fabrication d'équipements d'aide à la navigation. 26.51B Fabrication d'instrumentation scientifique et technique. 26.52Z Horlogerie. 26.60Z Fabrication d'équipements d'irradiation médicale, d'équipements électromédicaux et électrothérapeutiques. 26.70Z Fabrication de matériels optique et photographique. 26.80Z Fabrication de supports magnétiques et optiques. 27.11Z Fabrication de moteurs, génératrices et transformateurs électriques. 27.12Z Fabrication de matériel de distribution et de commande électrique. 27.20Z Fabrication de piles et d'accumulateurs électriques. 27.31Z Fabrication de câbles de fibres optiques. 27.32Z Fabrication d'autres fils et câbles électroniques ou électriques. 27.33Z Fabrication de matériel d'installation électrique. 27.40Z Fabrication d'appareils d'éclairage électrique. 27.51Z Fabrication d'appareils électroménagers. 27.52Z Fabrication d'appareils ménagers non électriques. 27.90Z Fabrication d'autres matériels électriques. 28.11Z Fabrication de moteurs et turbines, à l'exception des moteurs d'avions et de véhicules. 28.12Z Fabrication d'équipements hydrauliques et pneumatiques. 28.13Z Fabrication d'autres pompes et compresseurs. 28.14Z Fabrication d'autres articles de robinetterie. 28.15Z Fabrication d'engrenages et d'organes mécaniques de transmission. 28.21Z Fabrication de fours et brûleurs. 28.22Z Fabrication de matériel de levage et de manutention. 28.23Z Fabrication de machines et d'équipements de bureau (à l'exception des ordinateurs et équipements périphériques). 28.24Z Fabrication d'outillage portatif à moteur incorporé. 28.25Z Fabrication d'équipements aérauliques et frigorifiques industriels. 28.29A Fabrication d'équipements d'emballage, de conditionnement et de pesage. 28.29B Fabrication d'autres machines d'usage général. 28.30Z Fabrication de machines agricoles et forestières. 28.41Z Fabrication de machines-outils pour le travail des métaux. 28.49Z Fabrication d'autres machines-outils. 28.91Z Fabrication de machines pour la métallurgie. 28.92Z Fabrication de machines pour l'extraction ou la construction. 28.93Z Fabrication de machines pour l'industrie agro-alimentaire. 28.94Z Fabrication de machines pour les industries textiles. 28.95Z Fabrication de machines pour les industries du papier et du carton. 28.96Z Fabrication de machines pour le travail du caoutchouc ou des plastiques. 28.99A Fabrication de machines d'imprimerie. 28.99B Fabrication d'autres machines spécialisées. 29.10Z Construction de véhicules automobiles. 29.20Z Fabrication de carrosseries et remorques. 29.31Z Fabrication d'équipements électriques et électroniques automobiles. 29.32Z Fabrication d'autres équipements automobiles. 30.11Z Construction de navires et de structures flottantes. 30.12Z Construction de bateaux de plaisance. 30.20Z Construction de locomotives et d'autre matériel ferroviaire roulant. 30.30Z Construction aéronautique et spatiale. 30.40Z Construction de véhicules
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
militaires de combat. 30.91Z Fabrication de motocycles. 30.92Z Fabrication de bicyclettes et de véhicules pour invalides. 30.99Z Fabrication d'autres équipements de transport nca. 31.01Z Fabrication de meubles de bureau et de magasin. 31.02Z Fabrication de meubles de cuisine. 31.03Z Fabrication de matelas. 31.09A Fabrication de sièges d'ameublement d'intérieur. 31.09B Fabrication d'autres meubles et industries connexes de l'ameublement. 32.11Z Frappe de monnaie. 32.12Z Fabrication d'articles de joaillerie et bijouterie. 32.13Z Fabrication d'articles de bijouterie fantaisie et articles similaires. 32.20Z Fabrication d'instruments de musique. 32.30Z Fabrication d'articles de sport. 32.40Z Fabrication de jeux et jouets. 32.50A Fabrication de matériel médico-chirurgical et dentaire. 32.50B Fabrication de lunettes. 32.91Z Fabrication d'articles de brosserie. 32.99Z Autres activités manufacturières nca. 33.11Z Réparation d'ouvrages en métaux. 33.12Z Réparation de machines et équipements mécaniques. 33.13Z Réparation de matériels électroniques et optiques. 33.14Z Réparation d'équipements électriques. 33.15Z Réparation et maintenance navale. 33.16Z Réparation et maintenance d'aéronefs et d'engins spatiaux. 33.17Z Réparation et maintenance d'autres équipements de transport. 33.19Z Réparation d'autres équipements. 33.20A Installation de structures métalliques, chaudronnées et de tuyauterie. 33.20B Installation de machines et équipements mécaniques. 33.20C Conception d'ensemble et assemblage sur site industriel d'équipements de contrôle des processus industriels. 33.20D Installation d'équipements électriques, de matériels électroniques et optiques ou d'autres matériels. 35.11Z Production d'électricité. 35.12Z Transport d'électricité. 35.21Z Production de combustibles gazeux. 35.30Z Production et distribution de vapeur et d'air conditionné. 36.00Z Captage, traitement et distribution d'eau. 37.00Z Collecte et traitement des eaux usées. 38.11Z Collecte des déchets non dangereux. 38.12Z Collecte des déchets dangereux. 38.21Z Traitement et élimination des déchets non dangereux. 38.22Z Traitement et élimination des déchets dangereux. 38.31Z Démantèlement d'épaves. 38.32Z Récupération de déchets triés. 39.00Z Dépollution et autres services de gestion des déchets. 41.20A Construction de maisons individuelles. 41.20B Construction d'autres bâtiments. 42.11Z Construction de routes et autoroutes. 42.12Z Construction de voies ferrées de surface et souterraines. 42.13A Construction d'ouvrages d'art. 42.13B Construction et entretien de tunnels. 42.21Z Construction de réseaux pour fluides. 42.22Z Construction de réseaux électriques et de télécommunications. 42.91Z Construction d'ouvrages maritimes et fluviaux. 42.99Z Construction d'autres ouvrages de génie civil nca. 43.11Z Travaux de démolition. 43.12A Travaux de terrassement courants et travaux préparatoires. 43.12B Travaux de terrassement spécialisés ou de grande masse. 43.13Z Forages et sondages. 43.21A Travaux d'installation électrique dans tous locaux. 43.21B Travaux d'installation électrique sur la voie publique. 43.22A Travaux d'installation d'eau et de gaz en tous locaux. 43.22B Travaux d'installation d'équipements thermiques et de climatisation. 43.29A Travaux d'isolation. 43.29B Autres travaux d'installation nca. 43.31Z Travaux de plâtrerie. 43.32A Travaux de menuiserie bois et PVC. 43.32B Travaux de menuiserie métallique et serrurerie. 43.32C Agencement de lieux de vente. 43.33Z Travaux de revêtement des sols et des murs. 43.34Z Travaux de peinture et vitrerie. 43.39Z Autres travaux de finition. 43.91A Travaux de charpente. 43.91B Travaux de couverture par éléments. 43.99A Travaux d'étanchéification. 43.99B Travaux de montage de structures métalliques. 43.99C Travaux de maçonnerie générale et gros œuvre de bâtiment. 43.99D Autres travaux spécialisés de construction.
Services
01.61Z Activités de soutien aux cultures. 01.62Z Activités de soutien à la production animale. 01.63Z Traitement primaire des récoltes. 01.64Z Traitement des semences. 02.40Z Services de soutien à l'exploitation forestière. 09.10Z Activités de soutien à l'extraction d'hydrocarbures. 09.90Z Activités de soutien aux autres industries extractives. 35.13Z Distribution d'électricité. 35.22Z Distribution de combustibles gazeux par conduites. 41.10A Promotion immobilière de logements. 41.10B Promotion immobilière de bureaux. 41.10C Promotion immobilière d'autres bâtiments.
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41.10D Supports juridiques de programmes. 43.99E Location avec opérateur de matériel de construction. 45.20A Entretien et réparation de véhicules automobiles légers. 45.20B Entretien et réparation d'autres véhicules automobiles. 46.11Z Intermédiaires du commerce en matières premières agricoles, animaux vivants, matières premières textiles et produits semi-finis. 46.12B Autres intermédiaires du commerce en combustibles, métaux, minéraux et produits chimiques. 46.13Z Intermédiaires du commerce en bois et matériaux de construction. 46.14Z Intermédiaires du commerce en machines, équipements industriels, navires et avions. 46.15Z Intermédiaires du commerce en meubles, articles de ménage et quincaillerie. 46.16Z Intermédiaires du commerce en textiles, habillement, fourrures, chaussures et articles en cuir. 46.17B Autres intermédiaires du commerce en denrées, boissons et tabac. 46.18Z Intermédiaires spécialisés dans le commerce d'autres produits spécifiques. 46.19B Autres intermédiaires du commerce en produits divers. 49.10Z Transport ferroviaire interurbain de voyageurs. 49.20Z Transports ferroviaires de fret. 49.31Z Transports urbains et suburbains de voyageurs. 49.32Z Transports de voyageurs par taxis. 49.39A Transports routiers réguliers de voyageurs. 49.39B Autres transports routiers de voyageurs. 49.39C Téléphériques et remontées mécaniques. 49.41A Transports routiers de fret interurbains. 49.41B Transports routiers de fret de proximité. 49.41C Location de camions avec chauffeur. 49.42Z Services de déménagement. 49.50Z Transports par conduites. 50.10Z Transports maritimes et côtiers de passagers. 50.20Z Transports maritimes et côtiers de fret. 50.30Z Transports fluviaux de passagers. 50.40Z Transports fluviaux de fret. 51.10Z Transports aériens de passagers. 51.21Z Transports aériens de fret. 51.22Z Transports spatiaux. 52.10A Entreposage et stockage frigorifique. 52.10B Entreposage et stockage non frigorifique. 52.21Z Services auxiliaires des transports terrestres. 52.22Z Services auxiliaires des transports par eau. 52.23Z Services auxiliaires des transports aériens. 52.24A Manutention portuaire. 52.24B Manutention non portuaire. 52.29A Messagerie, fret express. 52.29B Affrètement et organisation des transports. 53.10Z Activités de poste dans le cadre d'une obligation de service universel. 53.20Z Autres activités de poste et de courrier. 55.10Z Hôtels et hébergement similaire. 55.20Z Hébergement touristique et autre hébergement de courte durée. 55.30Z Terrains de camping et parcs pour caravanes ou véhicules de loisirs. 55.90Z Autres hébergements. 56.29A Restauration collective sous contrat. 56.29B Autres services de restauration nca. 58.11Z Edition de livres. 58.12Z Edition de répertoires et de fichiers d'adresses. 58.13Z Edition de journaux. 58.14Z Edition de revues et périodiques. 58.19Z Autres activités d'édition. 58.21Z Edition de jeux électroniques. 58.29A Edition de logiciels système et de réseau. 58.29B Edition de logiciels outils de développement et de langages. 58.29C Edition de logiciels applicatifs. 59.11A Production de films et de programmes pour la télévision. 59.11B Production de films institutionnels et publicitaires. 59.11C Production de films pour le cinéma. 59.12Z Post-production de films cinématographiques, de vidéo et de programmes de télévision. 59.13A Distribution de films cinématographiques. 59.13B Edition et distribution vidéo. 59.14Z Projection de films cinématographiques. 59.20Z Enregistrement sonore et édition musicale. 60.10Z Edition et diffusion de programmes radio. 60.20A Edition de chaînes généralistes. 60.20B Edition de chaînes thématiques. 61.10Z Télécommunications filaires. 61.20Z Télécommunications sans fil. 61.30Z Télécommunications par satellite. 61.90Z Autres activités de télécommunication. 62.01Z Programmation informatique. 62.02A Conseil en systèmes et logiciels informatiques. 62.02B Tierce maintenance de systèmes et d'applications informatiques. 62.03Z Gestion d'installations informatiques. 62.09Z Autres activités informatiques. 63.11Z Traitement de données, hébergement et activités connexes. 63.12Z Portails internet. 63.91Z Activités des agences de presse. 63.99Z Autres services d'information nca. 64.11Z Activités de banque centrale. 64.19Z Autres intermédiations monétaires. 64.20Z Activités des sociétés holding. 64.30Z Fonds de placement et entités financières similaires. 64.91Z Crédit-bail. 64.92Z Autre distribution de crédit. 64.99Z Autres activités des services financiers, hors assurance et caisses de retraite, nca. 65.11Z Assurance-vie. 65.12Z Autres assurances. 65.20Z Réassurance. 65.30Z Caisses de retraite. 66.11Z Administration de marchés financiers. 66.12Z Courtage de valeurs mobilières et de marchandises. 66.19A Supports juridiques de gestion de patrimoine mobilier. 66.19B Autres activités auxiliaires de services financiers, hors assurance et caisses de retraite, nca. 66.21Z Evaluation des risques et dommages.
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66.22Z Activités des agents et courtiers d'assurances. 66.29Z Autres activités auxiliaires d'assurance et de caisses de retraite. 66.30Z Gestion de fonds. 68.10Z Activités des marchands de biens immobiliers. 68.20A Location de logements. 68.20B Location de terrains et d'autres biens immobiliers. 68.31Z Agences immobilières. 68.32A Administration d'immeubles et autres biens immobiliers. 68.32B Supports juridiques de gestion de patrimoine immobilier. 69.10Z Activités juridiques. 69.20Z Activités comptables. 70.10Z Activités des sièges sociaux. 70.21Z Conseil en relations publiques et communication. 70.22Z Conseil pour les affaires et autres conseils de gestion. 71.11Z Activités d'architecture. 71.12A Activité des géomètres. 71.12B Ingénierie, études techniques. 71.12B Ingénierie, études techniques. 71.20A Contrôle technique automobile. 71.20B Analyses, essais et inspections techniques. 72.11Z Recherche-développement en biotechnologie. 72.19Z Recherche-développement en autres sciences physiques et naturelles. 72.20Z Recherche-développement en sciences humaines et sociales. 73.11Z Activités des agences de publicité. 73.12Z Régie publicitaire de médias. 73.20Z Etudes de marché et sondages. 74.10Z Activités spécialisées de design. 74.20Z Activités photographiques. 74.30Z Traduction et interprétation. 74.90A Activité des économistes de la construction. 74.90B Activités spécialisées, scientifiques et techniques diverses. 75.00Z Activités vétérinaires. 77.11A Location de courte durée de voitures et de véhicules automobiles légers. 77.11B Location de longue durée de voitures et de véhicules automobiles légers. 77.12Z Location et location-bail de camions. 77.21Z Location et location-bail d'articles de loisirs et de sport. 77.22Z Location de vidéocassettes et disques vidéo. 77.29Z Location et location-bail d'autres biens personnels et domestiques. 77.31Z Location et location-bail de machines et équipements agricoles. 77.32Z Location et location-bail de machines et équipements pour la construction. 77.33Z Location et location-bail de machines de bureau et de matériel informatique. 77.34Z Location et location-bail de matériels de transport par eau. 77.35Z Location et location-bail de matériels de transport aérien. 77.39Z Location et location-bail d'autres machines, équipements et biens matériels nca. 77.40Z Location-bail de propriété intellectuelle et de produits similaires, à l'exception des œuvres soumises à copyright. 78.10Z Activités des agences de placement de main-d'œuvre. 78.20Z Activités des agences de travail temporaire. 78.30Z Autre mise à disposition de ressources humaines. 79.11Z Activités des agences de voyage. 79.12Z Activités des voyagistes. 79.90Z Autres services de réservation et activités connexes. 80.10Z Activités de sécurité privée. 80.20Z Activités liées aux systèmes de sécurité. 80.30Z Activités d'enquête. 81.10Z Activités combinées de soutien lié aux bâtiments. 81.21Z Nettoyage courant des bâtiments. 81.22Z Autres activités de nettoyage des bâtiments et nettoyage industriel. 81.29A Désinfection, désinsectisation, dératisation. 81-29B Autres activités de nettoyage nca. 81.30Z Services d'aménagement paysager. 82.11Z Services administratifs combinés de bureau. 82.19Z Photocopie, préparation de documents et autres activités spécialisées de soutien de bureau. 82.20Z Activités de centres d'appels. 82.30Z Organisation de foires, salons professionnels et congrès. 82.91Z Activités des agences de recouvrement de factures et des sociétés d'information financière sur la clientèle. 82.92Z Activités de conditionnement. 82.99Z Autres activités de soutien aux entreprises nca. 85.10Z Enseignement préprimaire. 85.20Z Enseignement primaire. 85.31Z Enseignement secondaire général. 85.32Z Enseignement secondaire technique ou professionnel. 85.41Z Enseignement postsecondaire non supérieur. 85.42Z Enseignement supérieur. 85.51Z Enseignement de disciplines sportives et d'activités de loisirs. 85.52Z Enseignement culturel. 85.53Z Enseignement de la conduite. 85.59A Formation continue d'adultes. 85.59B Autres enseignements. 85.60Z Activités de soutien à l'enseignement. 86.10Z Activités hospitalières. 86.21Z Activité des médecins généralistes. 86.22A Activités de radiodiagnostic et de radiothérapie. 86.22B Activités chirurgicales. 86.22C Autres activités des médecins spécialistes. 86.23Z Pratique dentaire. 86.90A Ambulances. 86.90B Laboratoires d'analyses médicales. 86.90C Centres de collecte et banques d'organes. 86.90D Activités des infirmiers et des sages-femmes. 86.90E Activités des professionnels de la rééducation, de l'appareillage et des pédicures-podologues. 86.90F Activités de santé humaine non classées ailleurs. 87.10A Hébergement médicalisé pour personnes âgées. 87.10B Hébergement médicalisé pour enfants handicapés. 87.10C Hébergement médicalisé pour adultes handicapés et autre hébergement médicalisé. 87.20A Hébergement social pour handicapés mentaux
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et malades mentaux. 87.20B Hébergement social pour toxicomanes. 87.30A Hébergement social pour personnes âgées. 87.30B Hébergement social pour handicapés physiques. 87.90A Hébergement social pour enfants en difficultés. 87.90B Hébergement social pour adultes et familles en difficultés et autre hébergement social. 88.10A Aide à domicile. 88.10B Accueil ou accompagnement sans hébergement d'adultes handicapés ou de personnes âgées. 88.10C Aide par le travail. 88.91A Accueil de jeunes enfants. 88.91B Accueil ou accompagnement sans hébergement d'enfants handicapés. 88.99A Autre accueil ou accompagnement sans hébergement d'enfants et d'adolescents. 88.99B Action sociale sans hébergement nca. 90.01Z Arts du spectacle vivant. 90.02Z Activités de soutien au spectacle vivant. 90.03A Création artistique relevant des arts plastiques. 90.03B Autre création artistique. 90.04Z Gestion de salles de spectacles. 91.01Z Gestion des bibliothèques et des archives. 91.02Z Gestion des musées. 91.03Z Gestion des sites et monuments historiques et des attractions touristiques similaires. 91.04Z Gestion des jardins botaniques et zoologiques et des réserves naturelles. 92.00Z Organisation de jeux de hasard et d'argent. 93.11Z Gestion d'installations sportives. 93.12Z Activités de clubs de sports. 93.13Z Activités des centres de culture physique. 93.19Z Autres activités liées au sport. 93.21Z Activités des parcs d'attractions et parcs à thèmes. 93.29Z Autres activités récréatives et de loisirs. 95.11Z Réparation d'ordinateurs et d'équipements périphériques. 95.12Z Réparation d'équipements de communication. 95.21Z Réparation de produits électroniques grand public. 95.22Z Réparation d'appareils électroménagers et d'équipements pour la maison et le jardin. 95.23Z Réparation de chaussures et d'articles en cuir. 95.24Z Réparation de meubles et d'équipements du foyer. 95.25Z Réparation d'articles d'horlogerie et de bijouterie. 95.29Z Réparation d'autres biens personnels et domestiques. 96.01A Blanchisserie-teinturerie de gros. 96.01B Blanchisserie-teinturerie de détail. 96.02A Coiffure. 96.02B Soins de beauté. 96.03Z Services funéraires. 96.04Z Entretien corporel. 96.09Z Autres services personnels nca. 97.00Z Activités des ménages en tant qu'employeurs de personnel domestique.
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Partie Arrêtés
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce
ANNEXE 7-5 (ANNEXE À L'ARTICLE A. 742-6)
Article Annexe 7-5
Ecrit
Droit civil
Les personnes. Les biens. Les obligations (contrats et responsabilités). Les sûretés et privilèges.
Droit commercial
Les commerçants. Les actes de commerce. Les livres de commerce. Le registre du commerce et des sociétés ; la publicité. Le fonds de commerce et ses composantes. Les sociétés commerciales. Les groupements d'intérêt économique. Le droit national des entreprises en difficulté. Le chèque et les effets de commerce. Les protêts et les certificats de non-paiement. Les sûretés et privilèges commerciaux. Le crédit-bail.
Procédure civile et commerciale
La procédure devant le tribunal de commerce. Le référé commercial ; les ordonnances sur requête. Les diligences du greffier dans le droit national des entreprises en difficulté. L'injonction de payer. Les délais de procédure.
Oral
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Organisation judiciaire
Les différentes juridictions, et notamment en ce qui concerne la juridiction commerciale : organisation, compétence et fonctionnement.
Réglementation professionnelle
1° Déontologie : # le statut ; # le tarif ; # le rôle du greffier dans le fonctionnement du tribunal de commerce. 2° Organisation et gestion d'un greffe.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Partie Arrêtés
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce
ANNEXE 7-6 (ANNEXE À L'ARTICLE A. 742-11)
Article Annexe 7-6
Droit civil
Les personnes : droit des personnes ; jouissance et privation des droits civils. La famille : minorité ; tutelle et émancipation ; les majeurs protégés. Les biens : meubles et immeubles ; successions et donations. Les sûretés et privilèges. Les obligations : la preuve et les effets ; l'extinction des obligations. Les contrats. La responsabilité civile. La société : société civile ; société en participation. Les régimes matrimoniaux : notions générales.
Droit commercial
Les commerçants. Les actes de commerce. Les livres de commerce. Le registre du commerce et des sociétés : la publicité. Le fonds de commerce et ses composantes. Les sociétés commerciales. Les groupements d'intérêt économique. Le droit national des entreprises en difficulté. Le chèque et les effets de commerce. Les protêts et les certificats de non-paiement. Les sûretés et privilèges commerciaux. La propriété industrielle. Les marques de fabrique, dessins et modèles. Le crédit-bail.
Organisation judiciaire
Procédure civile et commerciale
L'organisation judiciaire : les juridictions, les magistrats, les auxiliaires de justice. La juridiction commerciale : organisation, compétence et fonctionnement ; l'élection des juges consulaires. Les principes directeurs du procès. Le déroulement de l'instance : les incidents d'instance. L'administration de la preuve. Le jugement. Les voies de recours. La procédure devant le tribunal de commerce. Le référé commercial : les ordonnances sur requête. Les diligences du greffier dans le droit national des entreprises en difficulté. L'injonction de payer. Les délais de procédure. L'aide judiciaire.
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Réglementation professionnelle et gestion du greffe
Déontologie : # le statut ; # le tarif ; # le rôle du greffier dans le fonctionnement du tribunal de commerce. Organisation et gestion d'un greffe : # notions générales sur le droit du travail ; # notions générales sur la comptabilité ; # obligations comptables et sociales, délais.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Partie Arrêtés
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce
ANNEXE 7-6-1 (ANNEXE À L'ARTICLE A. 743-6)
Article Annexe 7-6-1
CLAUSES TYPES FIGURANT OBLIGATOIREMENT DANS LA CONVENTION ENTRE LE GREFFIER DES TRIBUNAUX DE COMMERCE ET LA CAISSE DES DÉPÔTS ET CONSIGNATIONS
Entre :
La Caisse des dépôts et consignations
Et
Le greffier du tribunal de commerce de... (forme juridique, dénomination, siège, RCS),
ci-après dénommé le greffier,
il est convenu ce qui suit :
Article 1er : Ouverture du compte affecté
Il est procédé à l'ouverture d'un compte de dépôt obligatoire affecté à chacune des catégories de fonds mentionnées à l'article R. 743-178 du code de commerce dans les écritures de la Caisse des dépôts et consignations au profit du greffier en vertu des dispositions des articles L. 743-14 et R. 743-178 et suivants du code de commerce.
Chaque compte est destiné à enregistrer les sommes détenues par le greffier pour le compte de tiers et relevant de catégories fixées par l'article R. 743-178.
Il ne peut y avoir qu'un compte pour chacune des catégories de fonds énumérées à l'article R. 743-178.
La CDC est chargée d'informer sans délai de l'ouverture des comptes le Conseil national des greffiers des tribunaux de commerce, dont le siège est à 75001 Paris, 29, rue Danielle-Casanova.
Article 2 : Identification et intitulé du compte
Chaque compte est identifié de la manière suivante :
-le titulaire du compte : greffier du tribunal de commerce de suivi de la raison sociale de l'office ;
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-l'intitulé du compte selon la catégorie de fonds :
-compte affecté, article L. 743-14, expertise ;
-compte affecté, article L. 3253-15, AGS ;
-compte affecté, article L. 743-14, séquestre affaire....
Article 3 : Spécificités du compte affecté
Un compte affecté ne pourra en aucun cas faire l'objet de convention de fusion, de compensation ou de nantissement et, plus généralement, d'ouverture de droits réels ou personnels au profit de quiconque.
Article 4 : Opérations de séquestre
Les fonds reçus par le greffier de tribunal de commerce en qualité de séquestre, après avoir été versés sur le compte affecté, et les instruments financiers qui lui sont remis en la même qualité peuvent faire l'objet de l'ouverture d'un compte de placement spécifique, en vue des placements financiers nécessaires à la bonne gestion des fonds concernés, conformément à la réglementation en vigueur.
Ce compte de placement est dépourvu de moyens de paiement. Les sommes confiées au greffier ayant fait l'objet d'un placement financier, le cas échéant augmentées des produits du placement, devront obligatoirement transiter par le compte affecté avant d'être reversées au mandant.
Article 5 : Fonctionnement du compte
Un compte de dépôt obligatoire ne peut donner lieu à des retraits d'espèces, à la mise à disposition de cartes de paiement ou de crédit et ne peut domicilier d'autorisations de prélèvement.
Le titulaire du compte de dépôt obligatoire peut procéder, sur ordre exprès, à des virements vers d'autres comptes dans le cadre de l'exécution des missions qui lui sont confiées.
Article 6 : Procuration
Le titulaire a la faculté de donner à une ou plusieurs personnes mandataires ayant obligatoirement la qualité de collaborateur le pouvoir d'effectuer en son nom, et sous son entière responsabilité, toutes les opérations sur le compte.
Article 7 : Frais et rémunération du compte
Les éventuels frais dus à la CDC au titre du fonctionnement du compte affecté ne peuvent en aucun cas être prélevés sur les avoirs figurant audit compte. Les intérêts obtenus au titre des provisions pour expertises judiciaires sont versés à l'office titulaire du compte sans transiter par ce compte.
Article 8 : Modifications et clôture du compte
Lors du retrait ou de la nomination d'un nouveau titulaire au sein de l'office, l'intéressé devra en informer immédiatement l'établissement bancaire, qui devra modifier en conséquence l'intitulé du compte
La clôture des comptes affectés ne peut intervenir qu'en cas de suppression de l'office ou de décision de l'établissement teneur du compte dans les conditions de l'article L. 312-1, alinéa 7, du code monétaire et financier.
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Dans cette dernière hypothèse, l'établissement doit virer, sur indication de l'office, le solde comptable des comptes affectés à son successeur, sur justification par ce dernier de la signature d'une convention nouvelle. La CDC devra informer le Conseil national des greffiers des tribunaux de commerce, conformément aux stipulations de l'article 1er de la présente convention.
Article 9 : Suppléance ou administration de l'office
Dans le cas où l'office se trouverait placé sous le régime de la suppléance ou de l'administration, la présente convention est opposable au suppléant ou à l'administrateur, jusqu'à la fin de la suppléance ou de l'administration.
L'établissement est alors tenu d'ajouter à l'intitulé des comptes affectés la mention : office sous suppléance de Me X ou office sous administration de Me X.
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Partie Arrêtés
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce
ANNEXE 7-7 (ANNEXE À L'ARTICLE A. 750-3)
Article Annexe 7-7
Tableau A. # Catégories d'informations enregistrées
au titre de l'instruction des dossiers
A-1. Description de la demande
A-1.1. Date et objet de la demande (création/extension et surface totale créée). A-1.2. Localisation (adresse postale : numéro et rue, commune, Cedex, nom du lotissement commercial, nom du centre commercial, code département) et type d'équipement du projet (ensemble commercial/commerce isolé). A-1.3. Enseigne principale. A-1.4. Chiffre d'affaires et effectifs à l'ouverture (*). A-1.5. Date et décision de la commission départementale d'équipement commercial (CDEC). A-1.6. Détail de la décision (nombre de votants, de oui, non et nuls, observations). A-1.7. Date et décision de la Commission nationale d'équipement commercial (CNEC).
A-2. Identification du demandeur
A-2.1. Numéro SIREN du demandeur, sa dénomination sociale et adresse postale, nom du responsable (*), téléphone (*), fax (*) et adresse mél (*).
Tableau B. # Catégories d'informations enregistrées au titre du recensement et de la mission de contrôle des surfaces autorisées
B-1. Local commercial
B-1.1. Adresse postale (numéro et rue, type de local commercial, type de pôle commercial, nom du
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lotissement commercial, nom du centre commercial, nom du quartier, type de zone de redynamisation urbaine [ZRU], type de zone d'aménagement concerté des centres urbains [ZACCU], commune, Cedex, nom du canton, nom de l'arrondissement, nom et code département), surfaces de vente intérieure, extérieure et totale et/ou nombre de positions de ravitaillement en carburant. B-1.2. Date d'autorisation et, le cas échéant, du permis de construire.
B-2. Exploitation commerciale
B-2.1. Numéro SIRET et nom de l'établissement commercial (enseigne), et ses codes activité et secteurs activité (codification NAF). B-2.2. Nom de l'enseigne, type de magasin, type de réseau, date d'ouverture, date de fermeture, exploité, virtuel, commercialité, date de fin de commercialité, date d'extension. B-2.3. Numéros de téléphone et de fax, et adresse électronique de l'établissement (**). B-2.4. Nom du responsable du magasin (**). B-2.5. Chiffres d'affaires et effectifs à l'ouverture et actuels (**).
B-3. Identification de l'entreprise qui exploite le magasin
B-3.1. Dénomination sociale et numéro SIREN de l'entreprise, nom du responsable (**), téléphone (**), adresse mél (**). (*) Informations destinées exclusivement à la DGCCRF et à la DCASPL. (**) Informations destinées exclusivement à la DGCCRF, la DCASPL, le HFDS, la DGTPE, l'INSEE, les DDE et les ODEC/OREC.
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Partie Arrêtés
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce
ANNEXE 7-8 (ANNEXE À L'ARTICLE A. 752-1)
Article Annexe I
RENSEIGNEMENTS RELATIFS AU DEMANDEUR ET AU PROJET
I. - Informations relatives au demandeur
1. Identité du demandeur : 1. 1. Personne physique : nom, prénom, adresse, numéros de téléphone et de télécopieur, adresse électronique. 1. 2. Personne morale : raison sociale, forme juridique, adresse, numéros de téléphone et de télécopieur, adresse électronique. 1. 3. Existence légale : fournir un extrait d'immatriculation au registre du commerce et des sociétés ou, à défaut, si la société est en cours de constitution, une copie des statuts enregistrés auprès des services fiscaux. Nota. - En cas de demande conjointe, préciser l'identité de chaque demandeur. Dans le cas d'une demande présentée par un mandataire, production du mandat. 2. Qualité en laquelle le demandeur agit : - exploitant ou futur exploitant ; - propriétaire ou futur propriétaire des constructions ; - promoteur. Nota. - Une demande peut être formulée à plusieurs titres par le ou les demandeurs.
II. - Présentation du projet
1. Adresse. 2. Description : 2. 1. Projet portant sur la création d'un ou plusieurs magasins de commerce de détail : 2. 1. 1. Surface de vente globale du projet ; 2. 1. 2. Surface de vente, secteur d'activité tel que défini à l'article R. 752-3 du code de commerce et nature de l'activité de chacun des magasins de plus de 300 mètres carrés de surface de vente ; 2. 1. 3. Dans le cas d'un ensemble commercial : nombre approximatif de magasins et surface de vente totale de ces magasins. 2. 2. Projet portant sur l'extension d'un ou plusieurs magasins de commerce de détail : 2. 2. 1. Secteur d'activité tel que défini à l'article R. 752-3 du code de commerce et nature de l'activité du ou des magasins dont l'extension est envisagée ; 2. 2. 2. Surface de vente : - rappel de la surface existante ; - surface demandée ; - surface envisagée après extension, qui doit être égale à la somme des deux surfaces définies ci-dessus. 2. 3. Projet portant sur le changement de secteur d'activité : 2. 3. 1. Surface de vente du magasin et désignation du secteur d'activité abandonné, tel que défini à l'article R. 752-3 du code de commerce ; 2. 3. 2. Surface de vente, secteur d'activité tel que défini à l'article R. 752-3 du code de commerce du commerce envisagé. 2. 4. Projet portant sur la modification substantielle d'un projet : Description : - du projet autorisé ou dont la demande est en cours d'instruction ; - des modifications envisagées ; - du projet après modifications. Ces descriptions doivent s'effectuer selon les modalités prévues au présent arrêté. 2. 5. Autres renseignements : - si le projet s'intègre dans un ensemble commercial existant, il sera fourni une liste des magasins de cet
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ensemble exploités sur plus de 300 mètres carrés de vente ; - la mention éventuelle de la ou des enseignes ; - parc de stationnement : nombre total de places et nombre de places réservées aux personnes à mobilité réduite ; - activités annexes éventuelles n'entrant pas dans le champ d'application de la loi (cafétérias, restaurants, stations de distribution de carburants, pharmacies, commerces de véhicules automobiles ou de motocycles...). 3. Historique : 3. 1. En cas de création : description, le cas échéant, des projets présentés par le demandeur sur le même terrain, avec indication de la date des décisions ou avis antérieurs. 3. 2. En cas d'extension ou de changement de secteur d'activité, historique de l'équipement commercial concerné : - date d'ouverture du magasin, surface de vente initiale ; - le cas échéant, indication des demandes d'extension déjà présentées avec date et sens des décisions ou des avis antérieurs.
III. - Conditions de réalisation du projet
1. Maîtrise du foncier : 1. 1. Lorsque le projet nécessite une construction : - indication des parcelles de terrain concernées et de leur superficie totale ; - extrait de plan cadastral ; - sera joint pour l'ensemble de ces parcelles soit un titre de propriété ou une promesse de vente, soit une autorisation du propriétaire pour la réalisation de l'opération projetée. 1. 2. Lorsque le projet concerne un local existant : - identification du local ; - sera joint soit un titre de propriété ou une promesse de vente, soit une autorisation du propriétaire pour l'exploitation de ce local, soit un bail ou une promesse de bail ; - lorsque le projet porte sur un changement de secteur d'activité, le document produit, dans l'hypothèse où le demandeur n'est pas propriétaire des locaux, devra attester de la possibilité d'exercer l'activité prévue. Les titres prévus au 1. 1 et au 1. 2 doivent être établis au bénéfice du ou des demandeurs.A défaut des titres eux-mêmes, peut être produite une attestation notariale faisant ressortir le nom du bénéficiaire du titre, l'identification des parcelles de terrain ou locaux concernés et la durée de validité du titre. 2. Attestation du régime social des indépendants : Pour les projets d'extension de magasins et pour les projets de changement de secteur d'activité, sera fournie, le cas échéant, une attestation du régime social des indépendants reprenant les éléments contenus dans la plus récente déclaration annuelle établie au titre de l'article 4 de la loi n° 72-657 du 13 juillet 1972 modifiée et, si l'établissement est redevable de la taxe sur les surfaces commerciales, indiquant s'il est à jour de ses paiements.
Article Annexe II
AMÉNAGEMENT DU TERRITOIRE, QUALITÉ DE L'URBANISME ET DÉVELOPPEMENT DURABLE
I. - Zone de chalandise
1. 1. Population totale de la zone de chalandise : - population du recensement général de 1999 (population sans double compte) ; - population légale municipale de 2006 ; - dernière population authentifiée par décret. Taux d'évolution entre ces différentes populations. 1. 2. Liste exhaustive des communes comprises dans la zone de chalandise et indication, pour chaque commune : - population du recensement général de 1999 (population sans double compte) ; - population légale municipale de 2006 ; - dernière population authentifiée par décret. Taux d'évolution entre ces différentes populations. 1. 3. Justification de ces délimitations au regard du deuxième alinéa du I de l'article R. 752-8 du code de commerce. 1. 4. Justification des chiffres avancés lorsqu'il est fait état dans la zone de chalandise d'une fréquentation touristique (sources statistiques, études...). 1. 5. Justification de la délimitation des sous-zones établies en fonction des modes de transport utilisés pour l'accès au projet.
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II. - Présentation du projet
au regard de l'aménagement du territoire
1. Dans l'environnement proche du projet (sur une distance d'environ 1 kilomètre à partir de celui-ci) : Description de l'environnement du projet, appuyée d'une carte ou d'un schéma, faisant apparaître : - la localisation des activités commerciales (pôles commerciaux et rues commerçantes, halles et marchés) ; - la localisation des autres activités (agricoles, industrielles ou tertiaires) ; - la localisation des équipements publics ; - la localisation des zones d'habitat (en précisant sa nature : collectif ou individuel, social) ; - la desserte actuelle et future (routière, transports collectifs, cycliste, piétonne). Seront signalés le cas échéant : - les opérations d'urbanisme ; - les programmes de logement ; - les zones de redynamisation urbaine et les zones franches ; - les disponibilités foncières connues. 2. Au sein de la zone de chalandise : Description de l'environnement du projet, appuyée d'une carte ou d'un schéma, faisant apparaître les lieux exerçant une attraction significative sur la population de la zone de chalandise, notamment : - la localisation des principaux pôles d'activités commerciales ; - la localisation des autres pôles majeurs d'activité (agricoles, industrielles ou tertiaires) ; - les équipements publics ou privés majeurs ; - la localisation des principales zones d'habitat (en précisant sa nature : collectif ou individuel, social) ; - la desserte actuelle et future (routière, transports collectifs, cycliste, piétonne). 3. Hors de la zone de chalandise : Description et localisation, à partir d'un document cartographique, des principaux pôles commerciaux.
III. - Présentation des effets du projet
1. Sur l'animation de la vie urbaine, rurale et de montagne. 2. Sur les flux de déplacement (tous modes de transport), notamment sur la limitation des déplacements motorisés des consommateurs. 3. Sur les projets d'aménagement et d'urbanisme de la zone de chalandise. IV. - Présentation du projet et de ses effets, au regard du développement durable et de la préservation de l'environnement, sur 1. La réduction des pollutions associées à l'activité. 2. La mise en œuvre de solutions végétales ou de maîtrise des consommations énergétiques. 3.L'inscription harmonieuse dans le paysage ou dans un projet urbain. 4. Le traitement de friches commerciales ou industrielles. 5. Un éventuel site Natura 2000. 6. Des protections particulières au titre de la biodiversité (arrêté de protection de biotope). 7. Sa situation en termes de risques naturels, technologiques ou miniers.
Article Annexe III
FICHE TECHNIQUE D'EXAMEN D'UN PROJET SOUMIS À AUTORISATION EN MATIÈRE D'AMÉNAGEMENT COMMERCIAL
Identification du projet
N° (réservé à l'administration)
Catégorie de projet (article L. 752-1 du code de commerce)
Description sommaire du projet
Adresse du projet
Date de création, si le magasin existe déjà
Surfaces de vente avant projet, par secteur d'activité :Commerce(s) à dominante alimentaire: m2Autre(s) commerce(s) : m2
Surfaces de vente après projet, par secteur d'activité :Commerce(s) à dominante alimentaire : m2Autre(s) commerce(s) : m2
Historique des autorisations ou avis précédents :Décisions ou avis (CDEC, CDAC, CNEC ou CNAC; autorisation ou refus (mentions selon le cas))
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Maîtrise foncière du projet (avec identification des références cadastrales)
Identité du demandeurPersonne physique : nom, prénom, adresse (postale, électronique), n° de téléphone, n° de télécopie
Personne morale : raison sociale, forme juridique, adresse (postale, électronique), n° de téléphone, n° de télécopie
Présentation sommaire de la zone de chalandiseDescription sommaire de la zone de chalandise (temps de transport maximum et barrières naturelles ou psychologiques, logiciel utilisé)Estimation du pourcentage de la population de la zone de chalandise susceptible d'accéder ausite du projet- à pied ;- en transports en commun.
*** Situation du projet
Positionnement général Oui Non Sans objet
Observations
Positionnement dans un secteur aggloméré d'un bourg, d'une ville ou d'une agglomération
Positionnement en entrée de ville ou en entrée de bourg.
Positionnement en centre-ville ou en centre-bourg
Positionnement au sein d'un quartier d'habitation peu équipé en commerces
Positionnement par rapport aux constructions prévues, en cours de réalisation ou existantes
Oui Non Sans objet
Observations
Positionnement au sein d'une zone commerciale existante
Positionnement au sein d'une zone commerciale nouvelle ou en cours de réalisation
Positionnement au sein d'une zone commerciale à créer
Positionnement au sein d'une zone d'habitation existante
Positionnement au sein d'une zone d'habitation nouvelle ou en cours de réalisation
Positionnement au sein d'une zone d'habitation à créer
Positionnement au sein d'une zone urbanisée existante
Positionnement au sein d'une zone urbanisée nouvelle ou en cours de réalisation
Positionnement au sein d'une zone urbanisée à créer
Positionnement par rapport aux disponibilités foncières Oui Non Sans objet
Observations
Utilisation d'une offre foncière proche du centre-ville
Utilisation d une offre foncière proche de la clientèle
Impossibilité d'accès à une offre foncière proche du centre ville
***
*** Autres informations (facultatives)
Oui Non Sans objet Observations
Existence d'une information préalable sur le projet dispensée aux principaux élus locaux concernés dela zone de chalandise
Existence d'une étude indépendante confirmant les indications de la présente fiche
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Partie Arrêtés
LIVRE VII : Des juridictions commerciales et de l'organisation du commerce
ANNEXE 7-10 (ANNEXE AUX ARTICLES A. 762-2 À A. 762-4 ET A. 762-9)
Article Annexe I
(ANNEXE À L'ARTICLE A. 762-2) FORMULAIRE DE DEMANDE D'ENREGISTREMENT D'UN PARC D'EXPOSITION
(Articles L. 762-1 et R. 762-1 du code de commerce) Identification du parc d'exposition
Dénomination (2) : Sigle (1) (2) : Adresse (2) : Code postal (2) : Ville (2) :
Identification de l'exploitant
Dénomination sociale ou nom, prénom (s) (si personne physique) (2) : Sigle (1) (2) : Numéro d'identification SIRET (2) : Adresse (2) : Code postal (2) : Ville (2) : Téléphone (2) : Télécopie (2) : Mél (1) (2) : Adresse de site internet (1) (2) :
Caractéristiques du parc
Nom, prénom (s) du responsable de la gestion : Téléphone : Téléphone portable (1) : Mél (1) : Nom, prénom (s) du responsable de la sécurité (1) : Téléphone (1) : Téléphone portable (1) : Mél (1) : Surface totale (2) : Surface des installations destinées à accueillir les manifestations commerciales (2) : Surface des aires de stationnement (2) : Effectifs permanents employés sur le site : Effectifs permanents affectés à la sécurité : Références du dernier procès-verbal délivré par la commission de sécurité : J'atteste sur l'honneur que le parc d'exposition : # ne constitue pas une surface soumise à autorisation d'exploitation commerciale telle que prévue à l'article L. 752-1 ; # constitue un ensemble immobilier clos indépendant sans accès direct et privatif vers un autre parc d'exposition. Date :
Signature
(1) Donnée facultative.
(2) Donnée publiée sur le site internet public du ministère chargé du commerce. Les informations recueillies font l'objet d'un traitement informatique effectué pour le compte de l'Etat et destiné à informer le public et les tiers. Les autres destinataires des données sont les agents habilités à instruire votre dossier.A l'exception des données identifiées comme facultatives, les réponses sont obligatoires pour permettre le traitement de votre demande. La loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés vous accorde un droit d'accès et de rectification aux informations qui vous concernent. Pour exercer ce droit, veuillez vous adresser à la DGCIS
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(secrétariat général), Le Bervil, 12, rue Villiot, 75572 Paris Cedex 12 . Pour plus d'informations : www. pme. gouv. fr.
Article Annexe II
(ANNEXE À L'ARTICLE A. 762-3)
FORMULAIRE DE DÉCLARATION D'UN PROGRAMME DE MANIFESTATIONS COMMERCIALES SE TENANT DANS UN PARC D'EXPOSITION ENREGISTRÉ
(Articles L. 762-1 et R. 762-5 du code de commerce) Identification du parc d'exposition accueillant le programme de manifestations
Dénomination (4) : Adresse (4) : Numéro d'enregistrement du parc :
Identification de la manifestation n° 1 Première session de la manifestation / nouvelle session d'une manifestation (2)
Dénomination (4) : Sigle (1) (4) : Adresse de site internet (1) (4) : Catégorie (2) (4) (5) : # salon professionnel ; # salon ouvert au public ; # foire. Jour d'ouverture au public (4) : Jour de fermeture au public (4) : Précision éventuelle sur les dates : Conditions d'accès des visiteurs (2) (4) : # accès gratuit ; # titre payant ; # carte d'invitation. Secteur d'activité (4) : Liste limitative de produits ou services présentés déterminée par l'organisateur, dite nomenclature (si salon tel que défini aux 1° et 2° de l'article R. 762-4) (4) :
Caractéristiques chiffrées de la manifestation (Estimations pour les nouvelles manifestations,
chiffres certifiés pour la dernière session)
Surface nette (en mètres carrés) (3) (4) : Fréquentation (3) : Nombre d'exposants (3) (4) : Nombre de visites (3) (4) : Nombre de visiteurs (pour les salons professionnels) (3) (4) : Nombre de visiteurs professionnels (1) (3) (4) : Dont nombre de visiteurs étrangers (1) (3) (4) : Nombre d'exposants étrangers (1) (3) (4) : Surface nette occupée par les exposants étrangers (1) (3) (4) : Dénomination de l'organisme de certification (4) : Numéro SIRET : Adresse : Code postal : Ville :
Organisateur de la manifestation (Si différent de l'exploitant du parc d'exposition
accueillant la manifestation)
Dénomination sociale ou nom, prénom (s) (si personne physique) (4) : Sigle (1) (4) : Numéro d'identification SIRET (4) : Adresse (4) : Code postal (4) : Ville (4) : Téléphone (4) : Télécopie (4) : Mél (1) (4) : Adresse de site internet (1) (4) :
Responsable de la manifestation (Si différent de l'organisateur)
Nom :, prénom (s) : Fonction : Téléphone : Téléphone portable (1) : Mél (1) :
(1) Donnée facultative.
(2) Rayer les mentions inutiles.
(3) La définition de ces caractéristiques figure à l'article A. 762-1.
(4) Donnée publiée sur le site internet public du ministère chargé du commerce.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
(5) La définition de ces catégories figure à l'article R. 762-4. Les informations recueillies font l'objet d'un traitement informatique effectué pour le compte de l'Etat et destiné à informer le public et les tiers. Les autres destinataires des données sont les agents habilités à instruire votre dossier.A l'exception des données identifiées comme facultatives, les réponses sont obligatoires pour permettre le traitement de votre demande. La loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés vous accorde un droit d'accès et de rectification aux informations qui vous concernent. Pour exercer ce droit, veuillez vous adresser à la DCASPL (bureau de la communication), 3-5, rue Barbet-de-Jouy, 75353 Paris 07 SP. Pour plus d'informations : www. pme. gouv. fr.
Identification de la manifestation n° 2 Première session de la manifestation / nouvelle session d'une manifestation (2)
Dénomination (4) :
Sigle (1) (4) :
Adresse de site internet (1) (4) :
Catégorie (2) (4) (5) :
# salon professionnel ;
# salon ouvert au public ;
# foire.
Jour d'ouverture au public (4) :
Jour de fermeture au public (4) :
Précision éventuelle sur les dates :
Conditions d'accès des visiteurs (2) (4) :
# accès gratuit ;
# titre payant ;
# carte d'invitation.
Secteur d'activité (4) :
Liste limitative de produits ou services présentés déterminée par l'organisateur, dite nomenclature (si salon tel que défini aux 1° et 2° de l'article R. 762-4) (4) :
Caractéristiques chiffrées de la manifestation (Estimations pour les nouvelles manifestations, chiffres certifiés pour la dernière session)
Surface nette (en mètres carrés) (3) (4) :
Fréquentation (3) :
Nombre d'exposants (3) (4) :
Nombre de visites (3) (4) :
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Nombre de visiteurs (pour les salons professionnels) (3) (4) :
Nombre de visiteurs professionnels (1) (3) (4) :
Dont nombre de visiteurs étrangers (1) (3) (4) :
Nombre d'exposants étrangers (1) (3) (4) :
Surface nette occupée par les exposants étrangers (1) (3) (4) :
Dénomination de l'organisme de certification (4) :
Numéro SIRET :
Adresse :
Code postal : Ville : Organisateur de la manifestation (Si différent de l'exploitant du parc d'exposition accueillant la manifestation)
Dénomination sociale ou nom, prénom (s) (si personne physique) (4) :
Sigle (1) (4) : Numéro d'identification SIRET (4) :
Adresse (4) :
Code postal (4) : Ville (4) :
Téléphone (4) : Télécopie (4) :
Mél (1) (4) :
Adresse de site internet (1) (4) : Responsable de la manifestation (Si différent de l'organisateur)
Nom, prénom (s) :
Fonction :
Téléphone : Téléphone portable (1) :
Mél (1) :
J'atteste sur l'honneur que les informations ainsi déclarées sont conformes à celles qui ont été transmises au parc d'exposition par les organisateurs des manifestations.
Date :
Signature
(1) Donnée facultative.
(2) Rayer les mentions inutiles.
(3) La définition de ces caractéristiques figure à l'article A. 762-1.
(4) Donnée publiée sur le site internet public du ministère chargé du commerce.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
(5) La définition de ces catégories figure à l'article R. 762-4. Les informations recueillies font l'objet d'un traitement informatique effectué pour le compte de l'Etat et destiné à informer le public et les tiers. Les autres destinataires des données sont les agents habilités à instruire votre dossier.A l'exception des données identifiées comme facultatives, les réponses sont obligatoires pour permettre le traitement de votre demande. La loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés vous accorde un droit d'accès et de rectification aux informations qui vous concernent. Pour exercer ce droit, veuillez vous adresser DGCIS (secrétariat général), Le Bervil, 12, rue Villiot, 75572 Paris Cedex 12. Pour plus d'informations : www. pme. gouv. fr.
Article Annexe III
(ANNEXE À L'ARTICLE A. 762-3)
FORMULAIRE DE DÉCLARATION MODIFICATIVE D'UN PROGRAMME DE MANIFESTATIONS COMMERCIALES SE TENANT DANS UN PARC D'EXPOSITION ENREGISTRÉ
(Articles L. 762-1 et R. 762-7 du code de commerce) Identification du parc d'exposition accueillant les manifestations
Dénomination (4) : Adresse (4) :
Numéro d'enregistrement du parc :
Inscription d'une nouvelle manifestation n°... Première session de la manifestation /
nouvelle session d'une manifestation (2)
Dénomination (4) : Sigle (1) (4) (5) : Adresse de site internet (1) (4) : Catégorie (2) (4) : # salon professionnel ; # salon ouvert au public ; # foire. Jour d'ouverture au public (4) : Jour de fermeture au public (4) : Précision éventuelle sur les dates : Conditions d'accès des visiteurs (2) (4) : # accès gratuit ; # titre payant ; # carte d'invitation. Secteur d'activité (4) : Liste limitative de produits ou services présentés déterminée par l'organisateur, dite nomenclature (si salon tel que défini aux 1° et 2° de l'article R. 762-4) (4) :
Caractéristiques chiffrées de la manifestation (Estimations pour les nouvelles manifestations,
chiffres certifiés pour la dernière session)
Surface nette (en mètres carrés) (3) (4) : Fréquentation (3) : Nombre d'exposants (3) (4) : Nombre de visites (3) (4) : Nombre de visiteurs (pour les salons professionnels) (3) (4) : Nombre de visiteurs professionnels (1) (3) (4) : Dont nombre de visiteurs étrangers (1) (3) (4) : Nombre d'exposants étrangers (1) (3) (4) : Surface nette occupée par les exposants étrangers (1) (3) (4) : Dénomination de l'organisme de certification (4) : Numéro SIRET : Adresse : Code postal : Ville :
Organisateur de la manifestation (Si différent de l'exploitant du parc d'exposition
accueillant la manifestation)
Dénomination sociale ou nom, prénom (s) (si personne physique) (4) : Sigle (1) (4) : Numéro d'identification SIRET (4) : Adresse (4) : Code postal (4) : Ville (4) : Téléphone (4) : Télécopie (4) : Mél (1) (4) : Adresse de site internet (1) (4) :
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Responsable de la manifestation (Si différent de l'organisateur)
Nom, prénom (s) : Fonction : Téléphone : Téléphone portable (1) : Mél (1) :
(1) Donnée facultative.
(2) Rayer les mentions inutiles.
(3) La définition de ces caractéristiques figure à l'article A. 762-1.
(4) Donnée publiée sur le site internet public du ministère chargé du commerce.
(5) La définition de ces catégories figure à l'article R. 762-4. Les informations recueillies font l'objet d'un traitement informatique effectué pour le compte de l'Etat et destiné à informer le public et les tiers. Les autres destinataires des données sont les agents habilités à instruire votre dossier.A l'exception des données identifiées comme facultatives, les réponses sont obligatoires pour permettre le traitement de votre demande. La loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés vous accorde un droit d'accès et de rectification aux informations qui vous concernent. Pour exercer ce droit, veuillez vous adresser à DGCIS (secrétariat général), Le Bervil, 12, rue Villiot, 75572 Paris Cedex 12. Pour plus d'informations : www. pme. gouv. fr.
Modification des caractéristiques précédemment déclarées
de la manifestation n°...
Dénomination antérieurement déclarée (4) :
Dénomination (4) :
Sigle (1) (4) :
Adresse de site internet (1) (4) :
Catégorie (2) (4) (5) :
# salon professionnel ;
# salon ouvert au public ;
# foire.
Jour d'ouverture au public (4) :
Jour de fermeture au public (4) :
Précision éventuelle sur les dates :
Conditions d'accès des visiteurs (2) (4) :
# accès gratuit ;
# titre payant ;
# carte d'invitation.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Secteur d'activité (4) :
Liste limitative de produits ou services présentés déterminée par l'organisateur, dite nomenclature (si salon tel que défini aux 1° et 2° de l'article R. 762-4) (4) :
Caractéristiques chiffrées de la manifestation
(Estimations pour les nouvelles manifestations,
chiffres certifiés pour la dernière session)
Surface nette (en mètres carrés) (3) (4) :
Fréquentation (3) :
Nombre d'exposants (3) (4) :
Nombre de visites (3) (4) :
Nombre de visiteurs (pour les salons professionnels) (3) (4) :
Nombre de visiteurs professionnels (1) (3) (4) :
Dont nombre de visiteurs étrangers (1) (3) (4) :
Nombre d'exposants étrangers (1) (3) (4) :
Surface nette occupée par les exposants étrangers (1) (3) (4) :
Dénomination de l'organisme de certification (4) :
Numéro SIRET :
Adresse :
Code postal : Ville :
Organisateur de la manifestation
(Si différent de l'exploitant du parc d'exposition
accueillant la manifestation)
Dénomination sociale ou nom, prénom (s) (si personne physique) (4) :
Sigle (1) (4) : Numéro d'identification SIRET (4) :
Adresse (4) :
Code postal (4) : Ville (4) :
Téléphone (4) : Télécopie (4) :
Mél (1) (4) :
Adresse de site internet (1) (4) :
Responsable de la manifestation
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
(Si différent de l'organisateur)
Nom, prénom (s) :
Fonction :
Téléphone : Téléphone portable (1) :
Mél (1) :
J'atteste sur l'honneur que les informations ainsi déclarées sont conformes à celles qui ont été transmises au parc d'exposition par les organisateurs des manifestations.
Date :
Signature
(1) Donnée facultative.
(2) Rayer les mentions inutiles.
(3) La définition de ces caractéristiques figure à l'article A. 762-1.
(4) Donnée publiée sur le site internet public du ministère chargé du commerce.
(5) La définition de ces catégories figure à l'article R. 762-4. Les informations recueillies font l'objet d'un traitement informatique effectué pour le compte de l'Etat et destiné à informer le public et les tiers. Les autres destinataires des données sont les agents habilités à instruire votre dossier.A l'exception des données identifiées comme facultatives, les réponses sont obligatoires pour permettre le traitement de votre demande. La loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés vous accorde un droit d'accès et de rectification aux informations qui vous concernent. Pour exercer ce droit, veuillez vous adresser à DGCIS (secrétariat général), Le Bervil, 12, rue Villiot, 75572 Paris Cedex 12. Pour plus d'informations : www. pme. gouv. fr.
Article Annexe IV
(ANNEXE À L'ARTICLE A. 762-4)
FORMULAIRE DE DÉCLARATION D'UN SALON PROFESSIONNEL SE TENANT HORS D'UN PARC D'EXPOSITION ENREGISTRÉ
(Articles L. 762-2 et R. 762-10 du code de commerce) Première session du salon
Identification
Dénomination (4) : Sigle (1) (4) : Adresse de site internet (1) (4) : Localisation (adresse et descriptif succinct du lieu) (4) : Jour d'ouverture au public (4) : Jour de fermeture au public (4) : Précision éventuelle sur les dates (4) : Conditions d'accès des visiteurs (2) (4) : # accès gratuit ; # titre payant ; # carte d'invitation. Secteur d'activité (4) : Liste limitative de produits ou services présentés déterminée par l'organisateur, dite nomenclature (si salon tel que défini aux 1° et 2° de l'article R. 762-4) (4) :
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Caractéristiques chiffrées (estimations)
Surface nette (en mètres carrés) (3) (4) : Fréquentation attendue (3) : Nombre de visites attendues (3) (4) : Nombre de visiteurs attendus (3) (4) : Nombre d'exposants prévus (3) (4) :
Organisateur
Dénomination sociale ou nom, prénom (s) (si personne physique) (4) : Sigle (1) (4) : Numéro d'identification SIRET (4) : Adresse (4) : Code postal (4) : Ville (4) : Téléphone (4) : Télécopie (4) : Mél (1) (4) : Adresse de site internet (1) (4) :
Responsable (Si différent de l'organisateur)
Nom, prénom (s) : Fonction : Téléphone : Téléphone portable (1) : Mél (1) : J'atteste sur l'honneur que les exposants ne sont autorisés à délivrer sur place et à titre onéreux, dans le cadre d'une vente à emporter, que des marchandises dont la valeur n'excède pas 80 €. Date :
Signature
(1) Donnée facultative.
(2) Rayer les mentions inutiles.
(3) La définition de ces caractéristiques figure à l'article A. 762-1.
(4) Donnée publiée sur le site internet public du ministère chargé du commerce. Les informations recueillies font l'objet d'un traitement informatique effectué pour le compte de l'Etat et destiné à informer le public et les tiers. Les autres destinataires des données sont les agents habilités à instruire votre dossier.A l'exception des données identifiées comme facultatives, les réponses sont obligatoires pour permettre le traitement de votre demande. La loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés vous accorde un droit d'accès et de rectification aux informations qui vous concernent. Pour exercer ce droit, veuillez vous adresser à DGCIS (secrétariat général), Le Bervil, 12, rue Villiot, 75572 Paris Cedex 12. Pour plus d'informations : www. pme. gouv. fr.
Article Annexe V
(ANNEXE À L'ARTICLE A. 762-4)
FORMULAIRE DE DÉCLARATION D'UN SALON PROFESSIONNEL SE TENANT HORS D'UN PARC D'EXPOSITION ENREGISTRÉ
(Articles L. 762-2 et R. 762-10 du code de commerce) Nouvelle session du salon Identification
Dénomination (4) : Sigle (1) (4) : Adresse de site internet (1) (4) : Localisation (adresse et descriptif succinct du lieu) (4) : Jour d'ouverture au public (4) : Jour de fermeture au public (4) : Précision éventuelle sur les dates (4) : Conditions d'accès des visiteurs (2) (4) : # accès gratuit ; # titre payant ; # carte d'invitation. Secteur d'activité (4) : Liste limitative de produits ou services présentés déterminée par l'organisateur, dite nomenclature (si salon tel que défini aux 1° et 2° de l'article R. 762-4) (4) :
Caractéristiques chiffrées de la session précédente (Dates : du...... au......)
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Surface nette (en mètres carrés) (3) (4) : Fréquentation (3) : Nombre d'exposants (3) (4) : Nombre de visites (3) (4) : Nombre de visiteurs (3) (4) : Nombre de visiteurs professionnels (1) (3) (4) : Dont nombre de visiteurs étrangers (1) (3) (4) : Nombre d'exposants étrangers (1) (3) (4) : Surface nette occupée par les exposants étrangers (1) (3) (4) : Dénomination de l'organisme de certification (4) : Numéro SIRET : Adresse : Code postal : Ville :
Organisateur
Dénomination sociale ou nom, prénom (s) (si personne physique) (4) : Sigle (1) (4) : Numéro d'identification SIRET (4) : Adresse (4) : Code postal (4) : Ville (4) : Téléphone (4) : Télécopie (4) : Mél (1) (4) : Adresse de site internet (1) (4) :
Responsable (Si différent de l'organisateur)
Nom, prénom (s) : Fonction : Téléphone : Téléphone portable (1) : Mél (1) : J'atteste sur l'honneur que les exposants ne sont autorisés à délivrer sur place et à titre onéreux, dans le cadre d'une vente à emporter, que des marchandises dont la valeur n'excède pas 80 €. Date :
Signature
(1) Donnée facultative.
(2) Rayer les mentions inutiles.
(3) La définition de ces caractéristiques figure à l'article A. 762-1.
(4) Donnée publiée sur le site internet public du ministère chargé du commerce. Les informations recueillies font l'objet d'un traitement informatique effectué pour le compte de l'Etat et destiné à informer le public et les tiers. Les autres destinataires des données sont les agents habilités à instruire votre dossier.A l'exception des données identifiées comme facultatives, les réponses sont obligatoires pour permettre le traitement de votre demande. La loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés vous accorde un droit d'accès et de rectification aux informations qui vous concernent. Pour exercer ce droit, veuillez vous adresser à DGCIS (secrétariat général), Le Bervil, 12, rue Villiot, 75572 Paris Cedex 12. Pour plus d'informations : www. pme. gouv. fr.
Article Annexe VI
(ANNEXE À L'ARTICLE A. 762-4)
FORMULAIRE DE DÉCLARATION MODIFICATIVE D'UN SALON PROFESSIONNEL SE TENANT HORS D'UN PARC D'EXPOSITION ENREGISTRÉ
(Articles L. 762-2 et R. 762-11 du code de commerce) Identification du salon
Dénomination initiale (4) : Date du récépissé de déclaration initiale : Dénomination (4) : Sigle (1) (4) : Adresse de site internet (1) (4) : Localisation (adresse et descriptif succinct du lieu) (4) : Jour d'ouverture au public (4) : Jour de fermeture au public (4) : Précision éventuelle sur les dates : Conditions d'accès des visiteurs (2) (4) : # accès gratuit ; # titre payant ; # carte d'invitation. Secteur d'activité (4) : Liste limitative de produits ou services présentés déterminée par l'organisateur, dite nomenclature (si salon tel que défini aux 1° et 2° de l'article R. 762-4) (4) :
Caractéristiques chiffrées (Estimations)
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Surface nette (en mètres carrés) (3) (4) : Fréquentation attendue (3) : Nombre de visites attendues (3) (4) : Nombre de visiteurs attendus (3) (4) : Nombre d'exposants prévus (3) (4) :
Organisateur
Dénomination sociale ou nom, prénom (s) (si personne physique) (4) : Sigle (1) (4) : Numéro d'identification SIRET (4) : Adresse (4) : Code postal (4) : Ville (4) : Téléphone (4) : Télécopie (4) : Mél (1) (4) : Adresse de site internet (1) (4) :
Responsable (Si différent de l'organisateur)
Nom, prénom (s) : Fonction : Téléphone : Téléphone portable (1) : Mél (1) : J'atteste sur l'honneur que les exposants ne sont autorisés à délivrer sur place et à titre onéreux, dans le cadre d'une vente à emporter, que des marchandises dont la valeur n'excède pas 80 €. Date :
Signature
(1) Donnée facultative.
(2) Rayer les mentions inutiles.
(3) La définition de ces caractéristiques figure à l'article A. 762-1.
(4) Donnée publiée sur le site internet public du ministère chargé du commerce. Les informations recueillies font l'objet d'un traitement informatique effectué pour le compte de l'Etat et destiné à informer le public et les tiers. Les autres destinataires des données sont les agents habilités à instruire votre dossier.A l'exception des données identifiées comme facultatives, les réponses sont obligatoires pour permettre le traitement de votre demande. La loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés vous accorde un droit d'accès et de rectification aux informations qui vous concernent. Pour exercer ce droit, veuillez vous adresser à DGCIS (secrétariat général), Le Bervil, 12, rue Villiot, 75572 Paris Cedex 12. Pour plus d'informations : www. pme. gouv. fr.
Article Annexe VII
(ANNEXE À L'ARTICLE A. 762-2)
Vous pouvez consulter le tableau dans le JO n° 16 du 20 / 01 / 2009 texte numéro 52
Préfecture du département de
RÉCÉPISSÉ D'ENREGISTREMENT D'UN PARC D'EXPOSITION
(art.L. 762-1 et R. 762-2 du code de commerce)
Date de réception du dossier complet :
Identification du parc d'exposition
Numéro d'enregistrement du parc : Dénomination : Sigle (le cas échéant) : Adresse :
Exploitant
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Dénomination sociale ou nom, prénom (s) (si personne physique) : Adresse : Numéro unique d'identification (SIRET) :
Date : Visa :
Exception faite de la date de réception du dossier et du numéro d'enregistrement du parc, les données figurant sur ce récépissé font l'objet d'une publication sur le site internet du ministère chargé du commerce. Les informations recueillies font l'objet d'un traitement informatique effectué pour le compte de l'Etat et destiné à informer le public et les tiers. Les autres destinataires des données sont les agents habilités à instruire votre dossier.A l'exception des données identifiées comme facultatives, les réponses sont obligatoires pour permettre le traitement de votre demande. La loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés vous accorde un droit d'accès et de rectification aux informations qui vous concernent. Pour exercer ce droit, veuillez vous adresser à DGCIS (secrétariat général), Le Bervil, 12, rue Villiot, 75572 Paris Cedex 12. Pour plus d'informations : www. pme. gouv. fr.
Article Annexe VIII
(ANNEXE À L'ARTICLE A. 762-2)
Vous pouvez consulter le tableau dans le JO n° 16 du 20 / 01 / 2009 texte numéro 52
Préfecture du département de
RÉCÉPISSÉ D'ENREGISTREMENT MODIFICATIF D'UN PARC D'EXPOSITION
(art.L. 762-1 et R. 762-2 du code de commerce)
Date de réception du dossier complet :
Identification du parc d'exposition
Numéro d'enregistrement du parc : Dénomination : Sigle (le cas échéant) : Adresse :
Exploitant
Dénomination sociale ou nom, prénom (s) (si personne physique) : Adresse : Numéro unique d'identification (SIRET) :
Caractéristiques modifiées
Date : Visa :
Exception faite de la date de réception du dossier et du numéro d'enregistrement du parc, les données figurant sur ce récépissé font l'objet d'une publication sur le site internet du ministère chargé du commerce. Les informations recueillies font l'objet d'un traitement informatique effectué pour le compte de l'Etat et destiné à informer le public et les tiers. Les autres destinataires des données sont les agents habilités à instruire votre dossier.A l'exception des données identifiées comme facultatives, les réponses sont obligatoires pour permettre le traitement de votre demande. La loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés vous accorde un droit d'accès et de rectification aux informations qui vous concernent. Pour exercer ce droit,
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
veuillez vous adresser à DGCIS (secrétariat général), Le Bervil, 12, rue Villiot, 75572 Paris Cedex 12. Pour plus d'informations : www. pme. gouv. fr.
Article Annexe IX
(ANNEXE À L'ARTICLE A. 762-3)
Vous pouvez consulter le tableau dans le JO n° 16 du 20 / 01 / 2009 texte numéro 52
Préfecture du département de RÉCÉPISSÉ DE DÉCLARATION D'UN PROGRAMME ANNUEL DE MANIFESTATIONS COMMERCIALES SE TENANT DANS UN PARC D'EXPOSITION ENREGISTRÉ
(art.L. 762-1 et R. 762-6 du code de commerce)
Date de réception du dossier complet :
Identification du parc d'exposition déclarant
Numéro d'enregistrement du parc : Dénomination : Sigle (le cas échéant) : Adresse :
Exploitant
Dénomination sociale ou nom, prénom (s) (si personne physique) : Adresse : Numéro unique d'identification (SIRET) :
Manifestation déclarée n° 1
Dénomination : Sigle (le cas échéant) : Dates de tenue : du au Organisateur (si différent de l'exploitant du parc d'exposition déclarant) : Dénomination sociale ou nom, prénom (s) (si personne physique) : Adresse : Numéro unique d'identification (SIRET) :
Manifestation déclarée n° 2
Dénomination : Sigle (le cas échéant) : Dates de tenue : du au Organisateur (si différent de l'exploitant du parc d'exposition déclarant) : Dénomination sociale ou nom, prénom (s) (si personne physique) : Adresse : Numéro unique d'identification (SIRET) :
Manifestation déclarée n° 3
Dénomination :
Date : Visa :
Exception faite de la date de réception du dossier et du numéro d'enregistrement du parc, les données figurant sur ce récépissé font l'objet d'une publication sur le site internet du ministère chargé du commerce. Les informations recueillies font l'objet d'un traitement informatique effectué pour le compte de l'Etat et destiné à informer le public et les tiers. Les autres destinataires des données sont les agents habilités à instruire votre dossier.A l'exception des données identifiées comme facultatives, les réponses sont obligatoires pour permettre le traitement de votre demande. La loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés vous accorde un droit d'accès et de rectification aux informations qui vous concernent. Pour exercer ce droit, veuillez vous adresser à DGCIS (secrétariat général), Le Bervil, 12, rue Villiot, 75572 Paris Cedex 12. Pour plus d'informations : www. pme. gouv. fr.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Article Annexe X
(ANNEXE À L'ARTICLE A. 762-3)
Vous pouvez consulter le tableau dans le JO n° 16 du 20 / 01 / 2009 texte numéro 52
Préfecture du département de RÉCÉPISSÉ DE DÉCLARATION D'UNE MODIFICATION D'UN PROGRAMME ANNUEL DE MANIFESTATIONS COMMERCIALES SE TENANT DANS UN PARC D'EXPOSITION ENREGISTRÉ
(art.L. 762-1 et R. 762-6 du code de commerce)
Date de réception du dossier complet :
Identification du parc d'exposition déclarant
Numéro d'enregistrement du parc : Dénomination : Sigle (le cas échéant) : Adresse :
Exploitant
Dénomination sociale ou nom, prénom (s) (si personne physique) : Adresse : Numéro unique d'identification (SIRET) :
Manifestation (s) dont les caractéristiques sont modifiées
Dénomination : Sigle (le cas échéant) : Dates de tenue : du au Dénomination : Sigle (le cas échéant) : Dates de tenue : du au Organisateur (si différent de l'exploitant du parc d'exposition déclarant) : Dénomination sociale ou nom, prénom (s) (si personne physique) : Adresse : Numéro unique d'identification (SIRET) :
Date : Visa :
Exception faite de la date de réception du dossier et du numéro d'enregistrement du parc, les données figurant sur ce récépissé font l'objet d'une publication sur le site internet du ministère chargé du commerce. Les informations recueillies font l'objet d'un traitement informatique effectué pour le compte de l'Etat et destiné à informer le public et les tiers. Les autres destinataires des données sont les agents habilités à instruire votre dossier.A l'exception des données identifiées comme facultatives, les réponses sont obligatoires pour permettre le traitement de votre demande. La loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés vous accorde un droit d'accès et de rectification aux informations qui vous concernent. Pour exercer ce droit, veuillez vous adresser à DGCIS (secrétariat général), Le Bervil, 12, rue Villiot, 75572 Paris Cedex 12. Pour plus d'informations : www. pme. gouv. fr.
Article Annexe XI
(ANNEXE À L'ARTICLE A. 762-4)
Vous pouvez consulter le tableau dans le JO n° 16 du 20 / 01 / 2009 texte numéro 52
Préfecture du département de RÉCÉPISSÉ DE DÉCLARATION D'UN SALON
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
PROFESSIONNEL SE TENANT HORS D'UN PARC D'EXPOSITION ENREGISTRÉ
(art.L. 762-2 et R. 762-10 du code de commerce)
Date de réception du dossier complet : Numéro de dossier :
Identification de l'organisateur déclarant
Dénomination sociale ou nom, prénom (s) (si personne physique) : Adresse : Numéro unique d'identification (SIRET) :
Salon déclaré
Dénomination : Sigle (le cas échéant) : Dates de tenue : du au Localisation :
Date : Visa :
Exception faite de la date de réception du dossier et du numéro d'enregistrement du parc, les données figurant sur ce récépissé font l'objet d'une publication sur le site internet du ministère chargé du commerce. Les informations recueillies font l'objet d'un traitement informatique effectué pour le compte de l'Etat et destiné à informer le public et les tiers. Les autres destinataires des données sont les agents habilités à instruire votre dossier.A l'exception des données identifiées comme facultatives, les réponses sont obligatoires pour permettre le traitement de votre demande. La loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés vous accorde un droit d'accès et de rectification aux informations qui vous concernent. Pour exercer ce droit, veuillez vous adresser à DGCIS (secrétariat général), Le Bervil, 12, rue Villiot, 75572 Paris Cedex 12. Pour plus d'informations : www. pme. gouv. fr.
Article Annexe XII
(ANNEXE À L'ARTICLE A. 762-4)
Vous pouvez consulter le tableau dans le JO n° 16 du 20 / 01 / 2009 texte numéro 52
Préfecture du département de RÉCÉPISSÉ DE DÉCLARATION D'UNE MODIFICATION DE DÉCLARATION D'UN SALON PROFESSIONNEL SE TENANT HORS D'UN PARC D'EXPOSITION ENREGISTRÉ
(art.L. 762-2 et R. 762-10 du code de commerce)
Date de réception du dossier complet : Numéro de dossier :
Identification de l'organisateur déclarant
Dénomination sociale ou nom, prénom (s) (si personne physique) : Adresse : Numéro unique d'identification (SIRET) :
Salon dont les caractéristiques sont modifiées
Dénomination : Sigle (le cas échéant) : Dates de tenue : du au Localisation :
Date : Visa :
Exception faite de la date de réception du dossier et du numéro d'enregistrement du parc, les
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
données figurant sur ce récépissé font l'objet d'une publication sur le site internet du ministère chargé du commerce. Les informations recueillies font l'objet d'un traitement informatique effectué pour le compte de l'Etat et destiné à informer le public et les tiers. Les autres destinataires des données sont les agents habilités à instruire votre dossier.A l'exception des données identifiées comme facultatives, les réponses sont obligatoires pour permettre le traitement de votre demande. La loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés vous accorde un droit d'accès et de rectification aux informations qui vous concernent. Pour exercer ce droit, veuillez vous adresser à DGCIS (secrétariat général), Le Bervil, 12, rue Villiot, 75572 Paris Cedex 12. Pour plus d'informations : www. pme. gouv. fr.
Article Annexe XIII
PRINCIPALES OPÉRATIONS DE CONTRÔLE EN VUE DE LA CERTIFICATION DES CARACTÉRISTIQUES CHIFFRÉES DES MANIFESTATIONS COMMERCIALES
(annexe XIII de l'annexe 7-10 du livre septième de la partie Arrêtés du code de commerce)
I. - Principes généraux
En vue de certifier les caractéristiques chiffrées des manifestations commerciales, l'organisme réalise les deux types de contrôle suivants :
- contrôle de premier niveau : contrôle de type comptable de documents communiqués par l'organisateur de la manifestation ;
- contrôle de second niveau : contrôle de cohérence entre les résultats du contrôle de premier niveau et les caractéristiques chiffrées habituellement observées par la profession pour ce type de manifestation.
Pour ces contrôles, l'organisme :
- respecte les définitions réglementaires en vigueur ;
- utilise, pour procéder au contrôle de second niveau, les seuls chiffres officiels publiés par le ministère chargé du commerce.
L'organisme suit les étapes suivantes :
1. Enregistrement de la demande préalable de l'organisateur de la manifestation ;
2. Recueil des caractéristiques chiffrées de la manifestation auprès de l'organisateur ;
3. Contrôle de premier niveau des données recueillies ;
4. Etablissement d'un procès-verbal provisoire sur la base des résultats du contrôle de premier niveau ;
5. Contrôle de second niveau des données recueillies ;
6. Etablissement d'un procès-verbal définitif - valant certification des caractéristiques chiffrées de la manifestation - sur la base des résultats du contrôle de second niveau.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
L'organisme chargé de certifier les caractéristiques chiffrées des manifestations commerciales recueille auprès de l'organisateur de la manifestation les documents et informations nécessaires pour ces opérations, et notamment :
- documents comptables : factures, extraits de comptes relatifs aux recettes afférentes aux exposants, à la vente et à la prévente de tickets ;
- chiffres déclarés par l'organisateur à l'issue de la manifestation (communiqué de presse...) ;
- tout document qu'il juge utile ;
- dossiers d'inscription des exposants mentionnant les tarifs, les surfaces occupées et les montants facturés ;
- plan d'implantation de la manifestation ;
- le cas échéant, catalogue de la manifestation et ses additifs ;
- liste des exposants (coordonnées, surfaces occupées, montants facturés par nature de service fourni et, le cas échéant, nationalité) ;
- liste de ventilation des exposants entre exposants principaux et coexposants ;
- le cas échéant, liste de ventilation des exposants entre exposants français et étrangers ;
- les surfaces nettes allouées aux animations ou présentations en relation avec le thème de la manifestation ;
- la surface totale, dite surface brute , louée par le gestionnaire du site à l'organisateur de la manifestation ;
- talons de tickets contrôlés à l'entrée de la manifestation, classés par catégorie ;
- nombre de visiteurs enregistrés par avance et ayant visité effectivement la manifestation et nombre de visiteurs enregistrés à l'entrée de la manifestation ;
- facture relative à l'édition des titres d'accès mentionnant les numéros de série ;
- le cas échéant, procès-verbal d'huissier de destruction de la billetterie ;
- pour une manifestation dont les visiteurs sont enregistrés par un prestataire externe de l'organisateur, le document certifié sincère et conforme attestant du nombre de visiteurs contrôlés ;
- le nombre de badges attribués par l'organisateur aux personnels des exposants.
II. - Modalités de contrôle
A. - Contrôle de premier niveau
Ce contrôle est de type comptable, sur pièces, soit sur place chez l'organisateur de la manifestation, soit sur la base de documents transmis par ce dernier. Il porte :
1. Sur le nombre d'exposants :
- rapprochement du nombre d'exposants vérifiés avec la liste des exposants fournie par
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
l'organisateur ;
- rapprochement des données mentionnées aux dossiers d'inscription des exposants (surfaces occupées et montants facturés) avec celles de la liste des exposants et avec le plan d'implantation de la manifestation ;
- rapprochement des tarifs de location relevés avec les tarifs mentionnés sur les dossiers d'inscription ainsi que sur un échantillonnage aléatoire de factures émises ;
- rapprochement du montant des recettes issues de la location de stands avec les extraits de comptes relatifs aux recettes afférentes aux exposants ;
- rapprochement de la liste des coexposants vérifiés avec les attestations des exposants principaux hébergeurs.
2. Sur le nombre de visiteurs :
Pour les visiteurs munis d'un ticket acheté aux guichets de la manifestation ou en prévente :
- rapprochement du tarif mentionné au procès-verbal provisoire avec celui figurant sur les tickets ;
- rapprochement du montant des recettes mentionné au procès-verbal provisoire avec les extraits de comptes relatifs aux recettes afférentes à la vente et à la prévente de tickets ;
- rapprochement du montant des recettes mentionné au procès-verbal provisoire avec le nombre de talons de tickets contrôlés classés par catégorie.
Pour les visiteurs munis d'un ticket obtenu auprès de l'organisateur de la manifestation, d'un exposant ou d'un tiers :
- rapprochement de la facture de l'éditeur des tickets avec le nombre de tickets édités mentionné au procès-verbal provisoire ;
- rapprochement des différents tarifs avec ceux mentionnés aux dossiers d'inscription ;
- rapprochement du montant des recettes mentionné au procès-verbal provisoire avec les extraits de comptes relatifs aux recettes afférentes à la vente et à la prévente de tickets ;
- rapprochement du nombre de tickets édités, vendus et non vendus et, le cas échéant, du nombre mentionné au procès-verbal d'huissier de destruction de la billetterie.
Pour les manifestations dont le nombre de visiteurs est fourni par un prestataire externe de l'organisateur :
- rapprochement des informations mentionnées au procès-verbal provisoire avec les documents certifiés du prestataire externe ;
- rapprochement du montant des recettes mentionné au procès-verbal provisoire avec les extraits de comptes relatifs aux recettes afférentes à la vente et à la prévente de tickets.
B. - Contrôle complémentaire de premier niveau
En dehors de toute hypothèse d'anomalie, l'organisme certificateur procède à un double contrôle de premier niveau des caractéristiques chiffrées de certaines manifestations choisies par
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
échantillonnage aléatoire (une manifestation sur quarante au moins).
C. - Contrôle de second niveau
Le contrôle de second niveau permet d'identifier les écarts significatifs justifiant un complément d'information de la part de l'organisateur. Il est réalisé par traitement et comparaison des caractéristiques chiffrées issues des contrôles de premier niveau par calcul des ratios suivants (en valeur absolue) :
- surface nette de la manifestation divisée par surface brute de la manifestation : ce ratio est généralement inférieur ou égal à 2 / 3 ;
- surface nette des stands divisée par nombre d'exposants : ce ratio est généralement supérieur ou égal à 6 mètres carrés ;
- nombre d'entrées divisé par surface brute de la manifestation divisé par le nombre de jours d'ouverture au public de la manifestation : ce ratio est généralement inférieur à 1 visite / m ² et par jour ;
- caractéristiques chiffrées de la session contrôlée avec celles des sessions précédentes de la manifestation. Est constitutive d'un écart significatif une variation supérieure à 10 % par rapport à la session précédente ; cette variation doit néanmoins également s'apprécier sur plusieurs sessions ;
- caractéristiques chiffrées de la session contrôlée avec celles des sessions précédentes dans le même secteur et pour le même type de manifestation (tels que définis à l'article 2 du décret n° 2006-85 du 27 janvier 2006). Est constitutive d'un écart significatif une variation supérieure à l'écart type observé dans le même secteur et pour le même type de manifestation des ratios suivants :
- surface moyenne des stands = surface totale occupée par les exposants divisée par nombre d'exposants ;
- nombre moyen de visites par exposant et par jour = nombre de visites divisé par nombre d'exposants, divisé par nombre de jours d'ouverture de la manifestation.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Partie Arrêtés
LIVRE VIII : De quelques professions réglementées
TITRE Ier : Des administrateurs judiciaires, des mandataires judiciaires et des experts en diagnostic d'entreprise
Chapitre Ier : Des administrateurs judiciaires
Section 1 : De l'accès à la profession
Sous-section 1 : De la Commission nationale d'inscription et de discipline des administrateurs judiciaires
Article A811-1
Le règlement fixant les conditions d'élection des administrateurs judiciaires élus au sein de la Commission nationale d'inscription et de discipline des administrateurs judiciaires établi, en vertu de l'article R. 811-6, par le bureau du Conseil national des administrateurs judiciaires et des mandataires judiciaires et approuvé par le garde des sceaux, ministre de la justice, figure à l'annexe 8-1 au présent livre.
Sous-section 2 : Des conditions d'inscription sur la liste des administrateurs judiciaires
Article A811-2
Les titres et diplômes sanctionnant un deuxième cycle d'enseignement supérieur ou d'un niveau équivalent, prévus au 4° de l'article R. 811-7, qui permettent l'accomplissement du stage professionnel d'administrateur judiciaire, sont les suivants : 1° Maîtrise de sciences et techniques comptables et financières ; 2° Maîtrise de méthodes informatiques appliquées à la gestion ; 3° Maîtrise d'économie appliquée de l'université Paris-IX ; 4° Diplôme d'un institut d'études politiques ; 5° Maîtrise d'administration économique et sociale, mention administration et gestion des entreprises ; 6° Titre d'ingénieur économiste délivré par le Conservatoire national des arts et métiers.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Article A811-3
L'examen d'accès au stage professionnel d'administrateur judiciaire est organisé au moins une fois par an. Les dates et lieux des épreuves sont fixés par le garde des sceaux, ministre de la justice, et publiés quatre mois avant la date de la première épreuve au Journal officiel de la République française.
Article A811-4
I. # Les candidatures sont adressées au secrétaire de la Commission nationale d'inscription des administrateurs judiciaires, par lettre recommandée avec demande d'avis de réception, au plus tard trois mois avant la date de la première épreuve de la session. II. # Le dossier de candidature comprend : 1° Une requête de l'intéressé ; 2° Tous documents officiels justificatifs de l'identité et de la nationalité du candidat ; 3° Tous documents justificatifs du domicile du candidat ; 4° Une photocopie lisible de l'un des titres ou diplômes énumérés aux articles R. 811-7 et R. 811-8 ou la justification des dispenses prévues par la loi.
Article A811-5
La commission arrête, deux mois avant la date de la première épreuve de la session, la liste des candidats admis à subir les épreuves de l'examen d'accès au stage professionnel. Des convocations individuelles mentionnant le jour, l'heure et le lieu des épreuves sont adressées à chaque candidat au moins quinze jours à l'avance.
Article A811-6
L'examen comprend des épreuves écrites d'admissibilité et une épreuve orale d'admission. Les sujets de ces épreuves sont arrêtés par le jury.
Article A811-7
Les épreuves écrites d'admissibilité comprennent : 1° Une épreuve d'une durée de trois heures portant sur le droit national des entreprises en difficulté. La note est affectée d'un coefficient 6. 2° Une épreuve d'une durée de trois heures consistant en la résolution d'un cas pratique de comptabilité correspondant au programme de l'épreuve du DPECF. La note est affectée d'un coefficient 3. 3° Une épreuve d'une durée de deux heures portant sur le droit des contrats. La note est affectée d'un coefficient 3. 4° Une épreuve d'une durée d'une heure trente portant sur la gestion financière et le contrôle de gestion correspondant au programme de l'épreuve du DECF. La note est affectée d'un coefficient 3. 5° Une épreuve d'une durée d'une heure trente portant sur le droit social lié aux procédures collectives. La note est affectée d'un coefficient 3. 6° Une épreuve d'une durée de deux heures constituée d'une note de synthèse portant sur le droit européen et international des entreprises en difficulté réalisée à partir de documents fournis aux candidats. La note est affectée d'un coefficient 2. 7° Une épreuve d'une durée d'une heure trente portant sur le droit des sociétés et des groupements. La note est affectée d'un coefficient 2.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Article A811-8
Pour les épreuves d'admissibilité, les candidats peuvent utiliser les codes et recueils de lois et décrets comportant des références d'articles de doctrine et de jurisprudence. Ils peuvent également se servir de codes ou recueils de lois et décrets ne contenant aucune indication de doctrine ou de jurisprudence sans autre note que des références à des textes législatifs ou réglementaires.
Article A811-9
La correction des épreuves écrites est organisée de manière à préserver l'anonymat de chaque candidat. Chaque composition est examinée par deux correcteurs. Chacune des épreuves d'admissibilité est notée de 0 à 20. Chaque note est affectée du coefficient prévu pour l'épreuve correspondante. L'admissibilité est prononcée par le jury au vu de la moyenne des notes obtenues par le candidat à l'ensemble des épreuves écrites qu'il a subies, si celle-ci est égale ou supérieure à 10 sur 20. Le jury arrête par ordre alphabétique la liste des candidats déclarés admissibles. Celle-ci est mise en ligne et consultable gratuitement sur le site internet du Conseil national des administrateurs judiciaires et des mandataires judiciaires. L'admissibilité n'est valable que pour la session au cours de laquelle elle a été acquise.
Article A811-10
Nul ne peut se présenter à l'épreuve orale d'admission s'il n'a été déclaré admissible par le jury. Une convocation individuelle mentionnant le jour, l'heure et le lieu de l'épreuve orale est adressée à chaque candidat admissible au moins quinze jours à l'avance. L'épreuve est constituée d'une discussion de trente minutes avec le jury orientée sur l'exercice de la profession d'administrateur judiciaire. Elle se déroule en séance publique. Cette épreuve est notée de 0 à 20. La note est affectée d'un coefficient 3.
Article A811-11
L'admission est prononcée par le jury au vu de la moyenne des notes obtenues par le candidat à l'ensemble des épreuves écrites et orale qu'il a subies, si celle-ci est égale ou supérieure à 10 sur 20.
Article A811-12
Le jury arrête la liste des candidats déclarés admis. Cette liste est publiée au Journal officiel de la République française. Les résultats sont notifiés individuellement à chaque candidat.
Article A811-13
L'examen d'aptitude à la profession d'administrateur judiciaire est organisé au moins une fois par an. Les dates et lieux des épreuves sont fixés par le garde des sceaux, ministre de la justice, et publiés, quatre mois avant la date de la première épreuve, au Journal officiel de la République
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
française.
Article A811-14
I. # Les candidatures sont adressées au secrétaire de la Commission nationale d'inscription des administrateurs judiciaires, par lettre recommandée avec demande d'avis de réception, au plus tard trois mois avant la date de la première épreuve de la session. II. # Le dossier de candidature comprend : 1° Une requête de l'intéressé ; 2° Tous documents officiels justificatifs de l'identité et de la nationalité du candidat ; 3° Tous documents justificatifs du domicile du candidat ; 4° Une photocopie lisible de l'un des titres ou diplômes énumérés aux articles R. 811-7 et R. 811-8 ou la justification des dispenses prévues par la loi ; 5° Une copie du certificat de fin de stage ou la justification de la dispense partielle de stage ; 6° Le cas échéant, la justification de la dispense d'une ou plusieurs épreuves de l'examen d'aptitude.
Article A811-15
La commission arrête, deux mois avant la date de la première épreuve de la session, la liste des candidats admis à subir les épreuves de l'examen d'aptitude professionnelle. Des convocations individuelles mentionnant le jour, l'heure et le lieu des épreuves sont adressées à chaque candidat au moins quinze jours à l'avance.
Article A811-16
L'examen comprend des épreuves orales, une épreuve écrite et, si le candidat en fait la demande, une épreuve écrite optionnelle. Les sujets des épreuves sont arrêtés et composés par le jury.
Article A811-17
Les épreuves orales comprennent : 1° Une épreuve d'une durée de trente minutes comportant un exposé de dix minutes sur un sujet de culture économique et financière suivie d'une discussion avec le jury. Les candidats disposent d'une heure pour la préparation de cette épreuve. La note est affectée d'un coefficient 3. 2° Une interrogation d'une durée de vingt minutes portant sur la procédure civile et le droit pénal des affaires. La note est affectée d'un coefficient 3. 3° Une épreuve d'une durée de trente minutes de présentation et de discussion avec le jury portant sur un mémoire de rapport de stage que le candidat a réalisé et dont le sujet d'économie, de droit ou de gestion a été choisi par le candidat. La note est affectée d'un coefficient 3. 4° Une interrogation d'une durée de vingt minutes portant sur le statut et la déontologie de la profession d'administrateur judiciaire. La note est affectée d'un coefficient 3. 5° Une interrogation d'une durée de quinze minutes portant sur le droit social et le droit fiscal liés aux procédures collectives. La note est affectée d'un coefficient 3. 6° Une interrogation d'une durée de vingt minutes portant sur la gestion d'un cabinet d'administrateur judiciaire. La note est affectée d'un coefficient 2. 7° Une interrogation d'une durée de quinze minutes portant sur l'application du droit européen aux procédures collectives nationales. La note est affectée d'un coefficient 1.
Article A811-18
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L'épreuve écrite, d'une durée de cinq heures, a pour objet le traitement d'un dossier portant sur l'une des missions susceptibles d'être confiées à un administrateur judiciaire. La note est affectée d'un coefficient 6.
Article A811-19
L'épreuve écrite optionnelle ouvrant droit au certificat de spécialisation en matière civile d'une durée de quatre heures porte sur le droit des régimes matrimoniaux, la copropriété, les successions et le droit des associations. La note est affectée d'un coefficient 3.
Article A811-20
Chacune des épreuves est notée de 0 à 20. Chaque note est affectée du coefficient prévu pour l'épreuve correspondante. L'aptitude est prononcée par le jury au vu de la moyenne des notes obtenues par le candidat à l'ensemble des épreuves qu'il a subies, si celle-ci est égale ou supérieure à 10 sur 20. Pour les épreuves écrites, les candidats peuvent utiliser les codes et recueils de lois et décrets comportant des références d'articles de doctrine et de jurisprudence, à l'exclusion toutefois des codes annotés et commentés, article par article, par des professionnels du droit. Ils peuvent également se servir de codes ou recueils de lois et décrets ne contenant aucune indication de doctrine ou de jurisprudence sans autre note que des références à des textes législatifs ou réglementaires. La correction des épreuves écrites est organisée de manière à préserver l'anonymat de chaque candidat. Chaque composition est examinée par deux correcteurs. Les épreuves orales se déroulent en séance publique.
Article A811-21
Le jury arrête la liste des candidats déclarés aptes. Cette liste est publiée au Journal officiel de la République française. Les résultats sont notifiés individuellement à chaque candidat.
Article A811-22
Par application des dispositions du titre III du décret n° 56-585 du 12 juin 1956 portant fixation du système général de rétribution des agents de l'Etat ou des personnels non fonctionnaires assurant, à titre d'occupation accessoire, soit une tâche d'enseignement, soit le fonctionnement de jurys d'examens ou de concours, les jurys aux examens d'accès au stage professionnel et d'aptitude aux fonctions d'administrateur judiciaire sont classés dans le groupe I bis.
Sous-section 3 : De la procédure d'inscription sur la liste des administrateurs judiciaires et de la révision de la liste
Section 2 : De la surveillance, de l'inspection et de la discipline
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Section 3 : De la désignation d'un administrateur provisoire
Chapitre II : Des mandataires judiciaires
Section 1 : De l'accès à la profession
Sous-section 1 : De la Commission nationale d'inscription et de discipline des mandataires judiciaires
Article A812-1
Le règlement fixant les conditions d'élection des mandataires judiciaires élus au sein de la Commission nationale d'inscription et de discipline des mandataires judiciaires établi, en vertu de l'article R. 812-3, par le bureau du Conseil national des administrateurs judiciaires et des mandataires judiciaires et approuvé par le garde des sceaux, ministre de la justice, figure à l'annexe 8-1 au présent livre.
Sous-section 2 : Des conditions d'inscription sur les listes de mandataires judiciaires
Article A812-2
Les titres et diplômes sanctionnant un deuxième cycle d'enseignement supérieur ou d'un niveau équivalent, prévus au 4° de l'article R. 811-7, qui permettent l'accomplissement du stage professionnel de mandataire judiciaire conformément à l'article R. 812-4, sont les suivants : 1° Maîtrise de sciences et techniques comptables et financières ; 2° Maîtrise de méthodes informatiques appliquées à la gestion ; 3° Maîtrise d'économie appliquée de l'université Paris-IX ; 4° Diplôme d'un institut d'études politiques ; 5° Maîtrise d'administration économique et sociale, mention administration et gestion des entreprises ; 6° Titre d'ingénieur économiste délivré par le Conservatoire national des arts et métiers.
Article A812-3
L'examen d'accès au stage professionnel de mandataire judiciaire est organisé au moins une fois par an. Les dates et lieux des épreuves sont fixés par le garde des sceaux, ministre de la justice, et publiés quatre mois avant la date de la première épreuve au Journal officiel de la République française.
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Article A812-4
I. # Les candidatures sont adressées au secrétaire de la Commission nationale d'inscription des mandataires judiciaires, par lettre recommandée avec demande d'avis de réception, au plus tard trois mois avant la date de la première épreuve de la session. II. # Le dossier de candidature comprend : 1° Une requête de l'intéressé ; 2° Tous documents officiels justificatifs de l'identité et de la nationalité du candidat ; 3° Tous documents justificatifs du domicile du candidat ; 4° Une photocopie lisible de l'un des titres ou diplômes énumérés aux articles R. 811-7 et R. 811-8 ou la justification des dispenses prévues par la loi.
Article A812-5
La commission arrête, deux mois avant la date de la première épreuve de la session, la liste des candidats admis à subir les épreuves de l'examen d'accès au stage professionnel. Des convocations individuelles mentionnant le jour, l'heure et le lieu des épreuves sont adressées à chaque candidat au moins quinze jours à l'avance.
Article A812-6
L'examen comprend des épreuves écrites d'admissibilité et une épreuve orale d'admission. Les sujets de ces épreuves sont arrêtés par le jury.
Article A812-7
Les épreuves écrites d'admissibilité comprennent : 1° Une épreuve d'une durée de trois heures portant sur le droit national des entreprises en difficulté. La note est affectée d'un coefficient 6. 2° Une épreuve d'une durée de trois heures consistant en la résolution d'un cas pratique de comptabilité correspondant au programme de l'épreuve du DPECF. La note est affectée d'un coefficient 3. 3° Une épreuve d'une durée de deux heures portant sur le droit de la vente et le droit des sûretés. La note est affectée d'un coefficient 3. 4° Une épreuve d'une durée d'une heure trente portant sur le droit social lié aux procédures collectives. La note est affectée d'un coefficient 3. 5° Une épreuve d'une durée d'une heure trente portant sur le droit des procédures civiles d'exécution. La note est affectée d'un coefficient 3. 6° Une épreuve d'une durée de deux heures constituée d'une note de synthèse portant sur le droit européen et international des entreprises en difficulté réalisée à partir de documents fournis aux candidats. La note est affectée d'un coefficient 2.
Article A812-8
Pour les épreuves d'admissibilité, les candidats peuvent utiliser les codes et recueils de lois et décrets comportant des références d'articles de doctrine et de jurisprudence. Ils peuvent également se servir de codes ou recueils de lois et décrets ne contenant aucune indication de doctrine ou de jurisprudence sans autre note que des références à des textes législatifs ou réglementaires.
Article A812-9
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La correction des épreuves écrites est organisée de manière à préserver l'anonymat de chaque candidat. Chaque composition est examinée par deux correcteurs. Chacune des épreuves d'admissibilité est notée de 0 à 20. Chaque note est affectée du coefficient prévu pour l'épreuve correspondante. L'admissibilité est prononcée par le jury au vu de la moyenne des notes obtenues par le candidat à l'ensemble des épreuves écrites qu'il a subies, si celle-ci est égale ou supérieure à 10 sur 20. Le jury arrête par ordre alphabétique la liste des candidats déclarés admissibles. Celle-ci est mise en ligne et consultable gratuitement sur le site internet du Conseil national des administrateurs judiciaires et des mandataires judiciaires. L'admissibilité n'est valable que pour la session au cours de laquelle elle a été acquise.
Article A812-10
Nul ne peut se présenter à l'épreuve orale d'admission s'il n'a été déclaré admissible par le jury. Une convocation individuelle mentionnant le jour, l'heure et le lieu de l'épreuve orale est adressée à chaque candidat admissible au moins quinze jours à l'avance. L'épreuve est constituée d'une discussion de trente minutes avec le jury, orientée sur l'exercice de la profession de mandataire judiciaire. Elle se déroule en séance publique. Cette épreuve est notée de 0 à 20. La note est affectée d'un coefficient 3.
Article A812-11
L'admission est prononcée par le jury au vu de la moyenne des notes obtenues par le candidat à l'ensemble des épreuves écrites et orale qu'il a subies, si celle-ci est égale ou supérieure à 10 sur 20.
Article A812-12
Le jury arrête la liste des candidats déclarés admis. Cette liste est publiée au Journal officiel de la République française. Les résultats sont notifiés individuellement à chaque candidat.
Article A812-13
L'examen d'aptitude à la profession de mandataire judiciaire est organisé au moins une fois par an. Les dates et lieux des épreuves sont fixés par le garde des sceaux, ministre de la justice, et publiés, quatre mois avant la date de la première épreuve, au Journal officiel de la République française.
Article A812-14
I. # Les candidatures sont adressées au secrétaire de la Commission nationale d'inscription des mandataires judiciaires, par lettre recommandée avec demande d'avis de réception, au plus tard trois mois avant la date de la première épreuve de la session. II. # Le dossier de candidature comprend : 1° Une requête de l'intéressé ; 2° Tous documents officiels justificatifs de l'identité et de la nationalité du candidat ; 3° Tous documents justificatifs du domicile du candidat ; 4° Une photocopie lisible de l'un des titres ou diplômes énuméré aux articles R. 811-7 et R. 811-8 ou la justification des dispenses prévues par la loi ; 5° Une copie du certificat de fin ou la justification de la dispense partielle de stage ; 6° Le cas échéant, la justification de la dispense d'une ou plusieurs
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épreuves de l'examen d'aptitude.
Article A812-15
La commission arrête, deux mois avant la date de la première épreuve de la session, la liste des candidats admis à subir les épreuves de l'examen d'aptitude professionnelle. Des convocations individuelles mentionnant le jour, l'heure et le lieu des épreuves sont adressées à chaque candidat au moins quinze jours à l'avance.
Article A812-16
L'examen comprend des épreuves orales et une épreuve écrite. Les sujets des épreuves sont arrêtés et composés par le jury.
Article A812-17
Les épreuves orales comprennent : 1° Une épreuve d'une durée de trente minutes comportant un exposé de dix minutes sur un sujet de culture économique et financière suivie d'une discussion avec le jury. Les candidats disposent d'une heure pour la préparation de cette épreuve. La note est affectée d'un coefficient 3. 2° Une épreuve d'une durée de trente minutes de présentation et de discussion avec le jury portant sur un mémoire de rapport de stage que le candidat a réalisé et dont le sujet d'économie, de droit ou de gestion a été choisi par le candidat. La note est affectée d'un coefficient 3. 3° Une interrogation d'une durée de vingt minutes portant sur la procédure civile et le droit pénal des affaires. La note est affectée d'un coefficient 3. 4° Une interrogation d'une durée de quinze minutes portant sur le droit social et le droit fiscal liés aux procédures collectives. La note est affectée d'un coefficient 3. 5° Une interrogation d'une durée de vingt minutes portant sur le statut et la déontologie de la profession de mandataire judiciaire. La note est affectée d'un coefficient 3. 6° Une interrogation d'une durée de vingt minutes portant sur la gestion d'un cabinet de mandataire judiciaire. La note est affectée d'un coefficient 2. 7° Une interrogation d'une durée de quinze minutes portant sur l'application du droit européen aux procédures collectives nationales. La note est affectée d'un coefficient 1.
Article A812-18
L'épreuve écrite, d'une durée de cinq heures, a pour objet le traitement d'un dossier portant sur l'une des missions susceptibles d'être confiées à un mandataire judiciaire. La note est affectée d'un coefficient 6.
Article A812-19
Chacune des épreuves est notée de 0 à 20. Chaque note est affectée du coefficient prévu pour l'épreuve correspondante. L'aptitude est prononcée par le jury au vu de la moyenne des notes obtenues par le candidat à l'ensemble des épreuves qu'il a subies, si celle-ci est égale ou supérieure à 10 sur 20. Pour les épreuves écrites, les candidats peuvent utiliser les codes et recueils de lois et décrets comportant des références d'articles de doctrine et de jurisprudence, à l'exclusion toutefois des codes annotés et commentés, article par article, par des professionnels du droit. Ils peuvent
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également se servir de codes ou recueils de lois et décrets ne contenant aucune indication de doctrine ou de jurisprudence sans autre note que des références à des textes législatifs ou réglementaires. La correction des épreuves écrites est organisée de manière à préserver l'anonymat de chaque candidat. Chaque composition est examinée par deux correcteurs. Les épreuves orales se déroulent en séance publique.
Article A812-20
Le jury arrête la liste des candidats déclarés aptes. Cette liste est publiée au Journal officiel de la République française. Les résultats sont notifiés individuellement à chaque candidat.
Article A812-21
Par application des dispositions du titre III du décret du 12 juin 1956 portant fixation du système général de rétribution des agents de l'Etat ou des personnels non fonctionnaires assurant, à titre d'occupation accessoire, soit une tâche d'enseignement, soit le fonctionnement de jurys d'examens ou de concours, les jurys aux examens d'accès au stage professionnel et d'aptitude aux fonctions de mandataire judiciaire sont classés dans le groupe I bis.
Sous-section 3 : De la procédure d'inscription sur les listes de mandataires judiciaires
Section 2 : De la surveillance, de l'inspection et de la discipline
Chapitre III : Des experts en diagnostic d'entreprise
Chapitre IV : Dispositions communes
Section 1 : Du recours contre les décisions des commissions d'inscription et de discipline
Section 2 : De la représentation des professions auprès des pouvoirs publics
Article A814-1
Les règles professionnelles établies, en vertu de l'article R. 814-3, par le Conseil national des
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administrateurs judiciaires et des mandataires judiciaires et approuvées par le garde des sceaux, ministre de la justice, figurent à l'annexe 8-2 au présent livre.
Article A814-2
Le règlement fixant les conditions d'élection des administrateurs judiciaires et des mandataires judiciaires au Conseil national prévu à l'article L. 814-2, établi en vertu de l'article R. 814-6 par le bureau du Conseil national des administrateurs judiciaires et des mandataires judiciaires et approuvé par le garde des sceaux, ministre de la justice, figure à l'annexe 8-3 au présent livre.
Section 3 : De la garantie de la représentation des fonds, de la responsabilité civile professionnelle et de la rémunération
Sous-section 1 : De la garantie de la représentation des fonds et de la responsabilité civile professionnelle
Article A814-3
Le règlement fixant les conditions d'élection des administrateurs judiciaires et des mandataires judiciaires élus membres au sein du conseil d'administration de la caisse de garantie instituée à l'article L. 814-3, établi en vertu de l'article R. 814-18 et approuvé par le garde des sceaux, ministre de la justice, figure à l'annexe 8-4 au présent livre.
Sous-section 2 : De la rémunération
Section 4 : De la comptabilité, du dépôt de fonds, des contrôles et dispositions diverses
Sous-section 1 : De la tenue de la comptabilité et du dépôt de fonds
Sous-section 2 : Des contrôles
Article A814-4
Les contrôleurs désignés, conformément aux dispositions de l'article R. 814-45, pour effectuer les contrôles des administrateurs judiciaires et des mandataires judiciaires procèdent concomitamment et personnellement aux vérifications minimales prévues pour les procédures ouvertes avant le 1er
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janvier 2006 aux documents figurant à l'annexe 8-5 au présent livre.A l'issue du contrôle et après un entretien contradictoire avec le professionnel contrôlé, un rapport commun est établi par les contrôleurs.
Article A814-5
L'étendue des contrôles occasionnels est déterminée par l'autorité qui les prescrit. Ces contrôles peuvent comporter l'ensemble des vérifications minimales mentionnées à l'article A. 814-4.
Article A814-6
Les contrôleurs demandent les documents et organisent les entretiens nécessaires à la réalisation de leur mission de contrôle dans le respect des dispositions du présent livre. Ils sont tenus au secret professionnel. Le professionnel contrôlé met à la disposition des contrôleurs tous les documents utiles à la réalisation de leur mission.
Sous-section 3 : De l'honorariat, du costume d'audience et du serment
Sous-section 4 : Du lieu d'exercice de la profession
Section 5 : Des sociétés d'administrateurs judiciaires et de mandataires judiciaires
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Partie Arrêtés
LIVRE VIII : De quelques professions réglementées
TITRE II : Des commissaires aux comptes
Chapitre Ier : De l'organisation et du contrôle de la profession
Section 1 : Du Haut Conseil du commissariat aux comptes
Sous-section 1 : De l'organisation
Article A821-1
Le règlement intérieur adopté par le Haut Conseil du commissariat aux comptes le 5 février 2004 et homologué par le garde des sceaux, ministre de la justice, figure à l'annexe 8-6 au présent livre.
Sous-section 2 : Du fonctionnement
Sous-section 3 : Des relations du haut conseil avec ses homologues étrangers
Section 2 : Des contrôles et inspections des commissaires aux comptes
Section 3 : De l'organisation professionnelle
Chapitre II : Du statut des commissaires aux comptes
Section 1 : De l'inscription et de la discipline
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Sous-section 1 : De l'inscription
Paragraphe 1 : Des conditions d'inscription sur la liste
Article A822-1
Ne peuvent être admis à se présenter au certificat d'aptitude aux fonctions de commissaire aux comptes que les titulaires de l'un des diplômes suivants ou les anciens élèves diplômés ou issus avec succès de l'un des établissements suivants :1° Diplôme national d'enseignement supérieur sanctionnant un minimum de trois années d'études après le baccalauréat ;2° Diplôme visé du ministre chargé de l'enseignement supérieur, délivré par un établissement d'enseignement supérieur de commerce et de gestion reconnu par l'Etat et autorisé à délivrer un tel diplôme ;3° Diplôme d'études comptables supérieures (DECS) ;4° Diplôme d'études comptables et financières (DECF) ;5° Diplôme d'études supérieures comptables et financières (DESCF) ;6° Diplôme d'études supérieures (DES) ;7° Doctorat de spécialité ;8° Diplôme d'ingénieur ou de docteur ingénieur figurant sur la liste des écoles d'ingénieurs établie par la commission des titres d'ingénieurs ;9° Diplôme de l'institut du droit des affaires de l'université Paris-II ;10° Ecole nationale d'administration ;11° Ecole nationale de la magistrature ;12° Ecole nationale des impôts ;13° Ecole nationale des services du Trésor ;14° Institut régional d'administration ;15° Institut d'étude politique ;16° Institut commercial de l'université Grenoble-II ;17° Institut commercial de l'université Nancy-II ;18° Institut européen d'études commerciales supérieures Strasbourg-III ;19° Institut supérieur des affaires de Paris (ISA) ;20° Institut européen d'administration des affaires (INSEAD) ;21° Institut de sciences financières et d'assurance de Lyon ou membre de l'institut des actuaires français ;22° Institut de statistiques des universités de Paris (Paris-VI).
Article A822-2
Le certificat d'aptitude prévu à l'article R. 822-2 est organisé chaque année. Les candidats au titre de l'article R. 822-2 déposent au siège de la compagnie des commissaires aux comptes de leur domicile, entre le 1er et le 30 juin, leur demande accompagnée de tous documents officiels justificatifs de l'identité et de la nationalité et la justification de leur stage professionnel. En outre, ils justifient de la possession de l'un des diplômes ou titres prévus à l'article A. 822-1.S'ils demandent à bénéficier des dispositions de l'article R. 822-5, ils fournissent au garde des sceaux, ministre de la justice, au plus tard le 30 juin, tous éléments établissant qu'ils ont exercé pendant une durée de quinze ans au moins une activité publique ou privée qui leur a permis d'acquérir dans les domaines financier, comptable et juridique intéressant les sociétés commerciales une expérience jugée suffisante par le garde des sceaux, ministre de la justice. Les dossiers sont adressés par chaque compagnie régionale des commissaires aux comptes à la Compagnie nationale des commissaires aux comptes qui les transmet au ministère de la justice au plus tard le 31 août. Le garde des sceaux, ministre de la justice, publie au Journal officiel de la République française la liste des candidats autorisés à se présenter à l'examen. La date et le lieu des épreuves sont notifiés par voie de convocation individuelle.
Article A822-3
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Le certificat d'aptitude comprend des épreuves écrites d'admissibilité et des épreuves orales d'admission.
Article A822-4
Les épreuves écrites d'admissibilité comportent : 1° Une épreuve portant sur un cas pratique d'audit lié aux missions de commissaire aux comptes, d'une durée de cinq heures (coefficient 4) ; 2° Une épreuve, sous forme de questions, portant sur les matières juridiques, financières et fiscales, d'une durée de trois heures (coefficient 3) ; 3° Une épreuve portant sur l'ensemble des matières du programme, destinée à apprécier les qualités de réflexion et de rédaction des candidats, d'une durée de quatre heures (coefficient 3). Chacune des trois épreuves est notée de 0 à 20. L'anonymat de la correction est assuré. Une moyenne de 10 est exigée pour l'admissibilité à l'écrit ; toute note inférieure à 6 à l'une des trois épreuves est éliminatoire.
Article A822-5
Nul ne peut se présenter aux épreuves orales d'admission s'il n'a été déclaré admissible aux épreuves écrites. Les épreuves orales, qui sont notées de 0 à 20, comportent : 1° Une interrogation sur les matières juridiques du programme ; 2° Une interrogation sur les matières comptable, financière et fiscale et programme ; 3° Un commentaire de texte. L'admission est prononcée au vu de la moyenne des notes obtenues par le candidat aux épreuves orales, laquelle ne peut être inférieure à 10.
Article A822-6
Le programme figure à l'annexe 8-7 au présent livre.
Article A822-7
Les résultats sont affichés par les soins du jury et notifiés aux candidats. Le candidat déclaré admissible aux épreuves écrites qui n'a pas obtenu la moyenne requise aux épreuves orales d'admission conserve le bénéfice de l'admissibilité pour la session suivante.
Article A822-8
Un arrêté du garde des sceaux, ministre de la justice, publié au Journal officiel de la République française, désigne les membres du jury. Le jury est composé comme suit : 1° Un magistrat de l'ordre judiciaire, hors hiérarchie, président ; 2° Un magistrat de l'ordre judiciaire ; 3° Un magistrat de la Cour des comptes ou un inspecteur des finances ; 4° Un représentant de l'Autorité des marchés financiers ; 5° Trois membres de l'enseignement supérieur, professeurs, maîtres de conférences ou agrégés ; 6° Trois commissaires aux comptes. Il est procédé dans les mêmes conditions à la désignation de trois suppléants. Le jury est valablement constitué si cinq membres au moins du jury sont présents. En cas d'absence ou d'empêchement, le président est remplacé par le membre du jury qu'il désigne.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Article A822-9
Le conseil régional habilite les commissaires aux comptes à recevoir des stagiaires après s'être assuré qu'ils offrent des garanties suffisantes quant à la formation de ces stagiaires. Il dresse une liste des personnes ainsi habilitées. Cette liste peut être consultée par tout intéressé. Le conseil régional communique une copie des articles A. 822-9 à A. 822-18 au maître de stage lors de son habilitation.
Article A822-10
Le stagiaire est tenu de faire connaître au président du conseil régional, par lettre recommandée avec demande d'avis de réception, quinze jours au moins avant le début de son stage : 1° Son nom et son adresse ; 2° Le nom et l'adresse de son maître de stage. Il accompagne cette lettre d'une attestation du maître de stage indiquant qu'il accepte de recevoir le stagiaire et la date du début du stage. Le stagiaire est tenu aux mêmes obligations en cas de changement de maître de stage.
Article A822-11
Le stagiaire qui souhaite effectuer une partie de son stage en France chez une personne autre qu'un commissaire aux comptes inscrit sur la liste prévue à l'article L. 822-1, ou tout ou partie de son stage à l'étranger, obtient l'autorisation du conseil régional. Cette autorisation mentionne le nom, la qualité et l'adresse du maître de stage ainsi que la date du début du stage. Le conseil régional compétent est celui dont relevait précédemment le stagiaire ou, si celui-ci n'a pas encore commencé son stage, le conseil régional désigné à cet effet par le conseil national. Le conseil régional qui a autorisé le stage en assure le contrôle.
Article A822-12
La durée du stage est au minimum de trente-deux heures par semaine. Le stage est accompli pendant les heures normales de travail du maître de stage. Dans les six derniers mois du stage, le maître de stage accorde au stagiaire qui le demande un congé non rémunéré d'une durée d'au moins un mois pour la préparation du certificat d'aptitude aux fonctions de commissaire aux comptes. Le stage peut être effectué concurremment avec celui prévu par l'article 1er du décret n° 81-536 du 12 mai 1981 relatif au diplôme d'expertise comptable.
Article A822-13
Le stage a pour objet de préparer le stagiaire à l'exercice de la profession. L'activité du stagiaire ne se limite pas à de simples tâches d'exécution. Elle est dans toute la mesure du possible en relation directe avec les études théoriques qu'il poursuit. Les horaires du stagiaire sont aménagés à cette fin. Le stagiaire a la possibilité de consacrer une partie de son stage à l'étude de la documentation détenue par le maître de stage pour lui permettre d'approfondir ses connaissances et de se tenir informé de l'actualité intéressant la profession.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Article A822-14
Sauf dispense accordée par le conseil régional, le stagiaire est tenu de participer aux actions de formation organisées par le conseil régional. Le stagiaire établit des rapports d'activité selon une périodicité fixée par le conseil régional et transmet ces rapports, visés par le maître de stage et accompagnés le cas échéant de ses observations, au contrôleur du stage. Le conseil régional peut autoriser le stagiaire à suspendre son stage pour une durée totale n'excédant pas trois ans.
Article A822-15
Le conseil régional nomme un commissaire aux comptes chargé d'assurer le contrôle des stages. Il peut désigner un ou plusieurs contrôleurs adjoints. Le contrôleur de stage ou l'un des contrôleurs adjoints reçoit les stagiaires sur leur demande à son cabinet. Il peut également les visiter dans les bureaux du maître de stage. Il reçoit dans les délais qu'il a fixés les rapports d'activités mentionnés à l'article A. 822-14. Le contrôleur de stage fait part, s'il y a lieu, au stagiaire ou au maître de stage, suivant le cas, de toutes remarques ou suggestions concernant l'assiduité et le comportement du stagiaire, la nature, le nombre et la qualité des travaux effectués et la formation professionnelle acquise. Le contrôleur de stage ou les contrôleurs adjoints réunissent les stagiaires au moins une fois par semestre. La convocation aux réunions est adressée au stagiaire trois semaines au moins à l'avance. Le maître de stage est également avisé de cette convocation. La présence des stagiaires à ces réunions est obligatoire, sauf empêchement dûment justifié. Les contrôleurs de stage font un compte rendu annuel de leur activité au conseil régional et au contrôleur national de stage.
Article A822-16
Le conseil national désigne un contrôleur national de stage qui oriente et coordonne l'action des contrôleurs régionaux.
Article A822-17
Le maître de stage établit à l'issue du stage un rapport sur les conditions de déroulement du stage qu'il transmet au conseil régional. Le président du conseil régional, au vu du rapport du maître de stage et des observations écrites du contrôleur de stage, établit un certificat portant ses appréciations sur le déroulement du stage et précisant si le stage est jugé satisfaisant. Lorsque plusieurs conseils régionaux ont assuré le contrôle du stage, le président du conseil régional compétent pour délivrer le certificat mentionné ci-dessus est celui dont relevait le stagiaire à l'issue de son stage. Si le stage s'est déroulé en totalité ou a pris fin à l'étranger, ce certificat est délivré par le président du conseil régional qui a donné l'autorisation mentionnée à l'article A. 822-11.
Article A822-18
Le conseil régional tient un registre sur lequel les stagiaires sont inscrits dans l'ordre d'arrivée des lettres mentionnées à l'article A. 822-10 ou des autorisations mentionnées à l'article A. 822-11. Il tient également un dossier par stagiaire et par maître de stage.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Article A822-19
L'épreuve d'aptitude prévue aux articles R. 822-6 et R. 822-7 a lieu au moins une fois par an.L'organisation matérielle de cette épreuve est confiée à la Compagnie nationale des commissaires aux comptes.
Article A822-20
Les personnes de nationalité française et les ressortissants d'un autre Etat membre de la Communauté européenne adressent au garde des sceaux, ministre de la justice, au plus tard le 30 juin, un dossier qui comprend : 1° Tous documents officiels justificatifs de l'identité et de la nationalité ; 2° Les diplômes, certificats ou autres titres dont ils sont titulaires ; 3° Tout justificatif permettant d'apprécier le contenu précis du cycle d'études postsecondaires suivi avec succès et si l'intéressé a accompli le stage professionnel requis. Les pièces produites sont accompagnées, le cas échéant, de leur traduction en langue française par un traducteur inscrit sur la liste nationale des experts judiciaires ou sur l'une des listes d'experts judiciaires dressées par les cours d'appel.
Article A822-21
Les personnes non ressortissantes d'un Etat membre de la Communauté européenne adressent au garde des sceaux, ministre de la justice, au plus tard le 30 juin, un dossier comprenant les pièces mentionnées à l'article A. 822-20.
Article A822-22
Le garde des sceaux, ministre de la justice, publie au Journal officiel de la République française la liste des candidats autorisés à se présenter à l'épreuve. La date et le lieu des épreuves sont notifiés par voie de convocation individuelle par la Compagnie nationale des commissaires aux comptes.
Article A822-23
L'épreuve d'aptitude se compose d'un écrit et d'un oral qui se déroulent en langue française.L'écrit et l'oral portent sur les matières fixées par le garde des sceaux, ministre de la justice, dans la décision prévue à l'article R. 822-6, et dont la connaissance est une condition essentielle pour pouvoir exercer la profession de commissaire aux comptes.
Article A822-24
La durée de l'épreuve écrite est limitée à trente minutes pour chaque matière sur laquelle l'intéressé est interrogé.
Article A822-25
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L'oral consiste en un entretien de trente minutes avec les membres du jury.
Article A822-26
L'admission est prononcée au vu de la moyenne obtenue par le candidat aux épreuves écrites et orales à condition que cette moyenne soit supérieure ou égale à 10.
Article A822-27
Les résultats sont affichés par les soins du jury et notifiés au candidat.
Article A822-28
Le jury est celui prévu à l'article A. 822-8.
Paragraphe 2 : De la commission régionale d'inscription et de la tenue de la liste
Paragraphe 3 : Des recours contre les décisions de la commission régionale d'inscription
Sous-Section 2 : De la discipline
Section 2 : De la déontologie et de l'indépendance des commissaires aux comptes
Article A822-28-1
La formation professionnelle prévue par l'article R. 822-61 assure la mise à jour et le perfectionnement des connaissances et des compétences nécessaires à l'exercice du commissariat aux comptes.
Article A822-28-2
La durée de la formation professionnelle est de cent vingt heures au cours de trois années consécutives. Vingt heures au moins sont accomplies au cours d'une même année.
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Article A822-28-3
L'obligation de formation est satisfaite : 1° Par la participation à des séminaires de formation, à des programmes d'autoformation encadrée ou à des formations ou enseignements à distance ; 2° Par l'assistance à des colloques ou à des conférences ; 3° Par l'animation de formations, la dispense d'enseignements, l'animation de colloques ou de conférences dans un cadre professionnel ou universitaire ; 4° Par la publication ou la participation à des travaux à caractère technique ; 5° Par la participation au programme de formation continue particulière prévu à l'article L. 822-4.
Article A822-28-4
La compagnie nationale des commissaires aux comptes définit annuellement les orientations générales et les différents domaines sur lesquels l'obligation de formation peut porter. Le commissaire aux comptes consacre un minimum de soixante heures de formation au cours d'une période de trois années consécutives aux domaines suivants : la déontologie du commissaire aux comptes, les normes d'exercice professionnel, les bonnes pratiques professionnelles identifiées et la doctrine professionnelle, les techniques d'audit et d'évaluation du contrôle interne, le cadre juridique de la mission de commissaire aux comptes et les matières comptables, financières, juridiques et fiscales.
Article A822-28-5
Il est institué un comité scientifique, placé auprès de la compagnie nationale, chargé d'homologuer les actions mentionnées aux 1° et 2° de l'article A. 822-28-3 et relevant des domaines définis au deuxième alinéa de l'article A. 822-28-4. L'homologation permet d'identifier les actions de formation conformes aux modalités de mise en œuvre définies aux articles A. 822-28-9 à A. 822-28-13. Elle est délivrée pour une durée déterminée par le comité scientifique. Le comité scientifique rend compte de sa mission dans un rapport d'exécution pour l'année civile écoulée. Ce rapport est présenté au conseil national de la Compagnie nationale des commissaires aux comptes, transmis au garde des sceaux, ministre de la justice, et publié dans le bulletin trimestriel CNCC suivant sa présentation.
Article A822-28-6
Le comité scientifique comprend : 1° Un président et un vice-président, désignés par le président de la Compagnie nationale des commissaires aux comptes. 2° Les six membres suivants : a) Le président de la commission formation professionnelle de la compagnie nationale ou son représentant ; b) Le président du comité des normes professionnelles de la compagnie nationale ou son représentant ; c) Le président de la commission des études juridiques de la compagnie nationale ou son représentant ; d) Le président de la commission des études comptables de la compagnie nationale ou son représentant ; e) Le président de la commission qualité de la compagnie nationale ou son représentant, siégeant avec voix consultative ; f) Un représentant du département appel public à l'épargne de la compagnie nationale, siégeant avec voix consultative. 3° Les six autres membres suivants : a) Le président de la commission formation du Conseil supérieur de l'ordre des experts-comptables ou son représentant ; b) Un représentant de chaque syndicat représentatif de la profession de commissaire aux comptes ; c) Un représentant du directeur des affaires civiles et du
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sceau ; d) Une personne qualifiée désignée par le garde des sceaux, ministre de la justice ; e) Un représentant du Haut Conseil du commissariat aux comptes. Les décisions sont prises à la majorité des voix. Le quorum est fixé à huit. En cas de partage égal des voix, celle du président est prépondérante. Les membres qui ne siègent pas ès qualités sont nommés pour une durée de deux ans renouvelable deux fois lors du conseil national de la compagnie nationale, qui procède à l'élection de son président et de son bureau.
Article A822-28-7
Le bureau du comité scientifique est chargé de statuer sur les demandes d'homologation des manifestations mentionnées au 2° de l'article A. 822-28-3. Il est composé : a) Du président du comité scientifique ; b) Du vice-président du comité scientifique ; c) Du président de la commission formation de la Compagnie nationale des commissaires aux comptes ou de son représentant ; d) Du président de la commission formation du Conseil supérieur de l'ordre des experts-comptables ou son représentant ; e) Des représentants des syndicats professionnels. Le bureau prend ses décisions à la majorité des voix. Le quorum est fixé à trois. En cas de partage égal des voix, celle du président est prépondérante. Le bureau informe les autres membres du comité scientifique des décisions qu'il arrête.
Article A822-28-8
Toute personne physique ou morale sollicitant l'homologation de séminaires de formation, de programmes d'autoformation ou de formations ou enseignements à distance destinés à un public de commissaires aux comptes communique son numéro de déclaration d'organisme dispensateur de formation professionnelle, au sens de l'article L. 6351-1 du code du travail , et transmet au comité scientifique un dossier comprenant les éléments suivants : a) Le nom de l'organisme ou de l'établissement ; b) Le titre du ou des séminaires, programmes d'autoformation, formations à distance ou enseignements à distance ; c) Les dates des séminaires, si elles sont prévues ou connues ; d) La durée des sessions de formation, programmes d'autoformation, formations et enseignements à distance ; e) Le domaine de la formation ; f) Les thèmes traités ; g) Les programmes détaillés ; h) Les noms et références professionnelles des concepteurs de la formation et des formateurs ; i) Les effectifs minimaux et maximaux de chaque session pour les séminaires de formation ; j) La description des supports écrits diffusés ; k) Les modalités de diffusion des programmes et conditions d'inscription ; l) Le mode d'évaluation des séminaires, programmes d'autoformation, formations et enseignements à distance. En lieu et place du numéro de déclaration mentionné au premier alinéa, les organismes étrangers communiquent une autorisation ou une habilitation équivalente. Les dossiers doivent être déposés avant le 1er mars de chaque année, le comité scientifique statuant au plus tard le 1er mai de la même année. Par dérogation à l'alinéa précédent, lorsqu'un organisme ou un établissement n'a pu déposer son dossier avant le 1er mars, le comité scientifique statue dans un délai de quatre mois à compter de la date de dépôt du dossier. Les organismes et établissements de formation peuvent faire mention de l'homologation sur le programme et les supports de communication des actions de formation concernées.
Article A822-28-9
Les formations dispensées par des organismes de formation ou des établissements d'enseignement doivent, pour être homologuées, réunir les conditions suivantes : 1° Elles doivent être organisées par sessions continues ou non d'une durée totale d'au moins sept heures ; 2° Chaque session de
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formation donne lieu à la signature d'une feuille de présence mentionnant le nom de l'organisme de formation, son adresse, son numéro d'organisme dispensateur de formation professionnelle au sens de l'article L. 6351-1 du code du travail , le thème traité, la désignation de l'animateur ; la feuille de présence est émargée par les participants à la formation et cosignée par le formateur ; 3° Chaque session de formation donne lieu à la remise à chaque participant d'un support pédagogique de formation ; 4° A l'issue de chaque session de formation, chaque participant reçoit de l'organisme de formation une attestation de présence signée par le représentant légal de l'organisme ou son délégataire.
Article A822-28-10
L'autoformation s'entend de toute action de formation utilisant un système d'enseignement assisté par ordinateur. Les actions éligibles au titre de l'autoformation mentionnée au 1° de l'article A. 822-28-3 doivent traiter un contenu qui les distingue d'une simple information et prévoir : -une progression de la formation, la formation devant être accompagnée d'un document permettant d'enregistrer la progression du participant, de suivre les points clés de chaque module, de fournir un travail personnel, de retrouver, le cas échéant, dans un lexique le sens des termes techniques utilisés et enfin de formaliser l'accomplissement et le résultat obtenu aux contrôles de connaissances ; -l'interactivité de la formation, l'utilisation d'outils de communication devant permettre au participant, en cas de besoin, de poser des questions auxquelles un formateur spécialisé pourra répondre par les moyens les plus appropriés dans les meilleurs délais ; -un contrôle des connaissances, le dispositif de formation permettant de suivre l'exécution du programme et d'apprécier les résultats devant assurer un contrôle des connaissances tout au long de la formation. Ces contrôles sont articulés de telle manière qu'il soit nécessaire de répondre correctement à des questionnaires intermédiaires pour passer d'un chapitre à l'autre de la formation. Le programme doit comporter un nombre suffisant de chapitres autonomes pour permettre le suivi d'une véritable progression. La réalité de ces actions de formation pourra être attestée par la présence d'un moniteur lors de certaines séances ou des contrôles de connaissances, par des regroupements périodiques des participants ou par le recours à des systèmes multimédia permettant à un formateur de suivre les participants et de communiquer avec eux à distance, de manière synchronisée ou non. A l'issue de chaque formation, l'organisme de formation ou l'employeur, si la formation est organisée au sein du cabinet, prépare une déclaration comportant les mentions suivantes : -les lieu et dates de la formation ; -les temps de connexion ou heures de début et de fin de l'utilisation du programme ; -la dénomination du ou des modules suivis ; -le nom de l'organisme de formation concepteur du support. Cette déclaration est attestée par le commissaire aux comptes qui a suivi le programme de formation.
Article A822-28-11
Les actions éligibles au titre de la formation à distance mentionnée au 1° de l'article A. 822-28-3 sont des dispositifs de formation comportant des apprentissages individualisés et l'accès à des ressources et compétences locales ou à distance. Elles ne sont pas nécessairement exécutées sous le contrôle permanent d'un formateur. La simple cession ou mise à disposition de supports (manuels, logiciels, matériels) à finalité pédagogique n'a pas la nature d'une formation à distance. Tel est le cas notamment des opérations dont le seul objet est la fourniture d'un matériel ou bien de " cours en ligne " sans accompagnement humain technique et pédagogique ou encore d'applications pédagogiques livrées sous la seule forme de supports numériques (CD-Rom, DVD-Rom...) ou cédées par voie de téléchargement.
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Article A822-28-12
Dans le cas où la formation est organisée par un organisme dispensateur de formation professionnelle, ce dernier établit une convention avec le cabinet du commissaire aux comptes bénéficiaire de la formation ou un contrat de formation lorsque le commissaire aux comptes, personne physique, entreprend la formation à titre individuel et à ses frais. Cette convention ou ce contrat précise les modalités de formation pour ce qui concerne notamment l'encadrement, la durée de la formation et le regroupement de participants. Lorsque la formation est organisée par des organismes privés d'enseignements à distance, ces derniers mentionnent obligatoirement sur leurs conventions les deux numéros de déclaration suivants : - l'un délivré par le recteur de l'académie où est situé le siège de l'organisme, lui permettant de délivrer un enseignement à distance ; - l'autre délivré par le préfet de région, aux fins de souscrire des conventions ou des contrats de formation professionnelle. En l'absence de repères habituels propres aux actions de formation " en présentiel ", il est possible à l'organisme dispensateur de déterminer la durée estimée nécessaire pour effectuer les travaux demandés. La durée totale de la formation pourra intégrer l'ensemble des situations pédagogiques concourant à la réalisation de l'action (autoformation encadrée, séquences de face-à-face pédagogique, apprentissage à distance, etc.) et accessoirement d'autres activités encadrées (autodocumentation, mise en pratique de situations de travail, etc.). Pour chacune des situations, la durée effective ou, le cas échéant, son estimation devra être précisée.
Article A822-28-13
Les colloques ou conférences éligibles au titre du 2° de l'article A. 822-28-3 portent sur la déontologie du commissaire aux comptes, les normes d'exercice professionnel, les bonnes pratiques professionnelles identifiées et la doctrine professionnelle, les techniques d'audit et d'évaluation du contrôle interne, le cadre juridique de la mission de commissaire aux comptes et les matières comptables, financières, juridiques et fiscales, et sont organisés selon les modalités suivantes : a) Les colloques ou conférences ont une durée continue d'au moins une heure trente ; à chaque session assistent, outre les intervenants, au moins vingt participants ; b) Chaque colloque ou conférence donne lieu à la remise à chaque participant d'une documentation écrite ; c) A l'issue de chaque colloque ou conférence, il est remis à chaque participant par l'organisme organisateur une attestation de présence ; l'attestation est signée par le représentant légal de l'organisateur, ou son délégataire ; d) Les organisateurs de telles manifestations communiquent au comité scientifique une demande de validation faisant état des éléments suivants : -le titre du colloque ou de la conférence ; -les dates des colloques ou conférences ; -la durée de chaque colloque ou conférence ; -le domaine ; -les thèmes traités ; -les programmes détaillés ; -les noms et références professionnelles des intervenants ; -les effectifs minimaux et maximaux de chaque colloque ou conférence ; -une description des supports pédagogiques diffusés. Les décisions d'homologation de ces manifestations sont prononcées par le bureau du comité scientifique, dans les conditions mentionnées à l'article A. 822-28-7.
Article A822-28-14
Les actions éligibles au titre du 3° de l'article A. 822-28-3 sont celles visées aux 1° et 2° de l'article A. 822-28-3, ainsi que les formations dispensées au sein des universités et établissements publics ou par des organismes de formation dans le cadre de la formation initiale des commissaires aux comptes et des experts-comptables. Si elle est reproduite dans d'autres lieux de formation ou devant
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des auditoires différents durant l'année considérée, chaque intervention n'est comptabilisée qu'une fois. Les formations et enseignements dispensés ainsi que les colloques et conférences animés font l'objet d'une attestation délivrée au commissaire aux comptes ou d'un justificatif de son intervention par l'organisme qui l'a fait intervenir.
Article A822-28-15
Les publications éligibles au titre du 4° de l'article A. 822-28-3 sont prises en compte l'année de leur dépôt légal. Pour les essais, les ouvrages et publications d'articles, les deux critères cumulatifs suivants sont retenus : 1° Le contenu : Les travaux publiés devront traiter de sujets relatifs à des matières techniques ayant un lien avec l'activité de commissaires aux comptes, à la déontologie ou à la réglementation professionnelle. 2° La forme : L'ensemble des publications considérées doit contenir au minimum 10 000 signes, hors titre, chapeaux, abstracts et intertitres.L'équivalence est fixée à trois heures de formation pour 10 000 signes ainsi définis. Une mise à jour correspond au tiers de cette équivalence. Le commissaire aux comptes conserve au moins un exemplaire original de l'ouvrage ou de la revue ayant accueilli sa publication, et le produit, en cas de demande, lors des contrôles du respect de l'obligation de formation. Les heures consacrées à de telles interventions sont limitées dans le décompte de l'obligation de formation, à un maximum de trente heures au cours de trois années consécutives.
Article A822-28-16
La participation aux commissions techniques de la Compagnie nationale des commissaires aux comptes et de l'Autorité des normes comptables peuvent entrer dans le décompte de l'obligation de formation, au titre du 4° de l'article A. 822-28-3, pour autant que les personnes intéressées sont actives au sein desdites commissions, c'est-à-dire qu'elles exercent des fonctions de rapporteur de ces commissions. La seule présence physique aux différentes réunions de ces commissions ne peut être prise en compte. Est seule prise en compte au titre de l'alinéa précédent la participation aux commissions suivantes de la Compagnie nationale des commissaires aux comptes : la commission des études juridiques, la commission des études comptables, la commission d'éthique professionnelle, le comité des normes professionnelles, la commission d'application des normes professionnelles. Lorsque l'ordre du jour de la commission prévoit l'intervention d'un rapporteur, la journée de présence équivaut à seize heures d'activité de formation. Les temps de présence sont pris en compte dans une limite ne pouvant excéder trente-deux heures sur trois ans. Une attestation de présence est délivrée au commissaire aux comptes par le secrétariat général de la Compagnie nationale des commissaires aux comptes ou par les organes concernés.
Article A822-28-17
Les commissaires aux comptes sont responsables du suivi de leur formation continue. Ils déclarent annuellement, au plus tard le 31 mars, auprès de la compagnie régionale dont ils relèvent, les conditions dans lesquelles ils ont satisfait à leur obligation de formation continue au cours de l'année civile écoulée, en saisissant ces informations sur le portail informatique de la Compagnie nationale des commissaires aux comptes. Les justificatifs utiles à la vérification du respect de cette obligation sont conservés pour être, le cas échéant, produits lors des contrôles de qualité. Leur durée de conservation est fixée à dix années.
Article A822-28-18
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Les compagnies régionales vérifient que les actions déclarées portant sur la déontologie du commissaire aux comptes, les normes d'exercice professionnel, les bonnes pratiques professionnelles identifiées et la doctrine professionnelle, les techniques d'audit et d'évaluation du contrôle interne, le cadre juridique de la mission de commissaire aux comptes et les matières comptables, financières, juridiques et fiscales : -ont été homologuées par le comité scientifique ; -représentent une durée minimale de soixante heures du temps consacré par les commissaires aux comptes à leur obligation de formation au cours de la période visée par la déclaration. Les compagnies régionales vérifient que les actions portant sur d'autres domaines sont dispensées par des organismes dispensateurs de formation professionnelle au sens de l'article L. 6351-1 du code du travail . Elles vérifient que les dispositions prévues aux articles A. 822-28-14, A. 822-28-15 et A. 822-28-16 sont respectées par les commissaires aux comptes qui déclarent des actions visées aux 3° et 4° de l'article A. 822-28-3. Les compagnies régionales rendent annuellement compte à la compagnie nationale du respect de leur obligation déclarative par les commissaires aux comptes de leur ressort.
Article A822-28-19
La formation particulière mentionnée au 2° de l'article R. 822-61-1 est satisfaite par la participation à des séminaires de formation, des programmes d'autoformation encadrée ou des formations ou enseignements à distance homologués par le comité scientifique, entrant dans le champ des domaines mentionnés au deuxième alinéa de l'article A. 822-28-4 et dans le cadre des orientations générales définies annuellement par la compagnie nationale.
Section 3 : De la responsabilité civile
Article A822-29
Les contrats d'assurance mentionnés à l'article R. 822-70 comportent les garanties conformes ou au moins équivalentes à celles qui sont définies par les clauses spécifiées à l'annexe 8-8 au présent livre. Ils spécifient en caractères très apparents qu'en cas d'opposition ou de différence entre les termes du contrat et ceux des clauses précitées l'assuré bénéficie de celles de ces dispositions qui lui sont le plus favorables.
Article A822-30
Chaque commissaire aux comptes, qu'il exerce ses fonctions à titre individuel ou en société, souscrit un tel contrat dans les conditions prévues à l'article R. 822-70.
Article A822-31
Les contrats mentionnés à l'article A. 822-29 ne comportent pas de limite de garantie inférieure à 76 224, 51 € par année et par sinistre pour un même assuré. Il peut être stipulé au contrat une franchise qui n'est pas supérieure, en tout état de cause, à 10 % du montant des indemnités dues.
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Article A822-32
Ces mêmes contrats comportent une clause de tacite reconduction annuelle.
Article A822-33
Toute contestation relative à la mise en jeu de la garantie relève exclusivement de l'appréciation des tribunaux.
Section 4 : Des sociétés de commissaires aux comptes
Chapitre III : De l'exercice du contrôle légal
Section 1 : De la nomination, de la récusation et de la révocation des commissaires aux comptes
Section 2 : De la mission du commissaire aux comptes
Section 3 : Des modalités d'exercice de la mission
Sous-section 1 : De la lettre de mission
Article A823-1
La norme d'exercice professionnel relative aux termes et conditions de la mission du commissaire aux comptes, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE À LA LETTRE DE MISSION DU COMMISSAIRE AUX COMPTES
Lettre de missionIntroduction
1. Les textes législatifs et réglementaires prévoient les interventions du commissaire aux comptes, organe de contrôle légal des comptes d'une personne ou d'une entité. Le commissaire aux comptes opère à ce titre toutes vérifications et tous contrôles qu'il juge opportuns. Par ailleurs, le code de déontologie rappelle les conditions dans lesquelles le commissaire aux comptes doit exercer sa mission. 2. Pour favoriser le bon déroulement de la mission du commissaire aux comptes, il est
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nécessaire que ce dernier définisse les termes et conditions de ses interventions. A cet effet, il doit les consigner dans une lettre de mission. 3. La présente norme a pour objet de définir les principes que doit respecter le commissaire aux comptes pour établir sa lettre de mission et demander l'accord de la personne ou de l'entité sur son contenu.
Etablissement et révision de la lettre de mission
4. La lettre de mission initiale doit être établie par le commissaire aux comptes la première année de son mandat et communiquée à la personne ou à l'entité préalablement à la mise en œuvre de ses travaux de vérification et de contrôle. 5. Dans le cas où la mission est dévolue à plusieurs commissaires aux comptes, ceux-ci établissent soit une lettre de mission commune, soit des lettres de mission individuelles. 6. Lorsque le commissaire aux comptes d'une personne ou entité qui établit des comptes consolidés ou combinés est également commissaire aux comptes d'une ou plusieurs personnes ou entités du même ensemble, il apprécie s'il convient d'établir une lettre de mission commune à plusieurs de ces personnes ou entités. Lorsque le commissaire aux comptes choisit d'établir une lettre de mission commune, il doit demander à la personne ou l'entité mère mentionnée ci-dessus de lui confirmer par écrit que les personnes ou entités de l'ensemble ont donné leur accord sur le contenu de la lettre de mission pour ce qui les concerne. 7. Au cours de son mandat, le commissaire aux comptes détermine, d'une part, s'il lui paraît nécessaire de rappeler à la personne ou à l'entité le contenu de la lettre de mission ; il détermine, d'autre part, si les circonstances exigent sa révision, notamment pour les cas où il existerait : # des indications selon lesquelles la direction se méprendrait sur la nature et l'étendue des interventions du commissaire aux comptes ; # des problèmes particuliers rencontrés par le commissaire aux comptes dans la mise en œuvre de ses travaux ; # des changements intervenus au sein des organes dirigeants, de la gouvernance ou de l'actionnariat ; # une évolution de la nature ou de l'importance des activités de la personne ou de l'entité ; # la survenance d'un événement ou une demande de la personne ou de l'entité nécessitant des diligences supplémentaires du commissaire aux comptes. 8. Les éléments révisés sont soit intégrés dans une nouvelle lettre de mission qui se substitue à la précédente, soit consignés dans une lettre complémentaire.
Contenu de la lettre de mission
9. La lettre de mission doit comporter les éléments suivants, sans préjudice d'autres éléments liés aux particularités de la personne ou de l'entité contrôlée, que le commissaire aux comptes jugerait utile d'ajouter : # la nature et l'étendue des interventions qu'il entend mener conformément aux normes d'exercice professionnel ; # la façon dont seront portées à la connaissance des organes dirigeants les conclusions issues de ses interventions ; # les dispositions relatives aux signataires, aux intervenants et au calendrier ; # la nécessité de l'accès sans restriction à tout document comptable, pièce justificative ou autre information demandée dans le cadre de ses interventions ; # le rappel des informations et documents que la personne ou l'entité doit lui communiquer ou mettre à sa disposition ; # le souhait de recevoir une confirmation écrite des organes dirigeants de la personne ou de l'entité pour ce qui concerne les déclarations faites au commissaire aux comptes en lien avec sa mission ; # le budget d'honoraires et les conditions de facturation. 10. Dans certaines circonstances, le commissaire aux comptes doit compléter la lettre de mission en mentionnant les éléments suivants : # en cas d'intervention au sein d'un ensemble consolidé, la nature et l'étendue des travaux qu'il entend mettre en œuvre dans les personnes ou les entités de cet ensemble ; # en cas de recours à d'autres professionnels du contrôle des comptes et d'experts, les dispositions relatives à leur participation, sous sa responsabilité, à certaines phases de ses interventions ; # en cas d'implication d'auditeurs internes ou d'autres employés de la personne ou de l'entité, les dispositions relatives à leur participation à certaines phases de ses interventions ; # en cas de cocommissariat, la répartition des travaux entre les commissaires aux comptes et le budget d'honoraires alloué à chacun d'eux ; # en cas d'intervention s'inscrivant dans le cadre de diligences directement liées à la mission du commissaire aux comptes ou de missions légales particulières, la nature et l'étendue des travaux
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qu'il entend mettre en œuvre à ce titre.
Demande d'accord
11. Le commissaire aux comptes doit demander à la personne ou à l'entité d'accuser réception de la lettre et de confirmer son accord sur les termes et conditions exposés. Il doit consigner dans son dossier de travail tout désaccord éventuel. Lorsque le désaccord remet en cause le bon déroulement de la mission, le commissaire aux comptes doit appliquer les mesures de sauvegarde telles que prévues par le code de déontologie et en tirer toutes les conséquences sur le maintien de son mandat auprès de la personne ou de l'entité concernée.
Sous-section 2 : De la certification des comptes
Paragraphe 1 : Des principes généraux
Article A823-2
La norme d'exercice professionnel relative aux principes applicables à l'audit des comptes mis en œuvre dans le cadre de la certification des comptes, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE AUX PRINCIPES APPLICABLES À L'AUDIT DES COMPTES MIS EN ŒUVRE DANS LE CADRE DE LA CERTIFICATION DES COMPTES
Introduction
1. Conformément au premier alinéa de l'article L. 823-9, « les commissaires aux comptes certifient, en justifiant de leurs appréciations, que les comptes annuels sont réguliers et sincères et donnent une image fidèle du résultat des opérations de l'exercice écoulé ainsi que de la situation financière et du patrimoine de la personne ou de l'entité à la fin de cet exercice ». En outre, conformément au deuxième alinéa de l'article L. 823-9, « lorsqu'une personne ou une entité établit des comptes consolidés, les commissaires aux comptes certifient, en justifiant de leurs appréciations, que les comptes consolidés sont réguliers et sincères et donnent une image fidèle du patrimoine, de la situation financière ainsi que du résultat de l'ensemble constitué par les personnes et entités comprises dans la consolidation ». Pour répondre à ces obligations légales, le commissaire aux comptes formule une opinion sur les comptes annuels et, le cas échéant, une opinion sur les comptes consolidés, après avoir mis en œuvre un audit des comptes. 2. La présente norme a pour objet de définir les principes applicables à l'audit des comptes mis en œuvre par le commissaire aux comptes en vue de certifier les comptes.
Définition
3. Anomalie significative : information comptable ou financière inexacte, insuffisante ou omise, en raison d'erreurs ou de fraude, d'une importance telle que, seule ou cumulée avec d'autres, elle peut influencer le jugement de l'utilisateur d'une information comptable ou financière.
Respect des textes et esprit critique
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4. Le commissaire aux comptes respecte les dispositions du code de déontologie de la profession. Il réalise sa mission d'audit des comptes conformément aux textes légaux et aux normes d'exercice professionnel relatives à cette mission. 5. Tout au long de son audit, il fait preuve d'esprit critique et tient compte du fait que certaines situations peuvent conduire à des anomalies significatives dans les comptes.A ce titre, le commissaire aux comptes évalue de façon critique la validité des éléments collectés au cours de ses travaux, et reste attentif aux informations qui contredisent ou remettent en cause la fiabilité des éléments obtenus. 6. Par ailleurs, tout au long de ses travaux, le commissaire aux comptes exerce son jugement professionnel, notamment pour décider de la nature, du calendrier et de l'étendue des procédures d'audit à mettre en œuvre, et pour conclure à partir des éléments collectés.
Nature de l'assurance
7. La formulation, par le commissaire aux comptes, de son opinion sur les comptes nécessite qu'il obtienne l'assurance que les comptes, pris dans leur ensemble, ne comportent pas d'anomalies significatives. Cette assurance élevée, mais non absolue du fait des limites de l'audit est qualifiée, par convention, d'« assurance raisonnable ». 8. Les limites de l'audit résultent notamment de l'utilisation des techniques de sondages, des limites inhérentes au contrôle interne, et du fait que la plupart des éléments collectés au cours de la mission conduisent davantage à des présomptions qu'à des certitudes.
Risque d'audit et étendue des travaux
9. Le risque que le commissaire aux comptes exprime une opinion différente de celle qu'il aurait émise s'il avait identifié toutes les anomalies significatives dans les comptes est appelé « risque d'audit ». Le risque d'audit comprend deux composantes : le risque d'anomalies significatives dans les comptes et le risque de non-détection de ces anomalies par le commissaire aux comptes. 10. Le risque d'anomalies significatives dans les comptes est propre à l'entité ; il existe indépendamment de l'audit des comptes. Il se subdivise en risque inhérent et risque lié au contrôle. Le risque inhérent correspond à la possibilité que, sans tenir compte du contrôle interne qui pourrait exister dans l'entité, une anomalie significative se produise dans les comptes. Le risque lié au contrôle correspond au risque qu'une anomalie significative ne soit ni prévenue ni détectée par le contrôle interne de l'entité et donc non corrigée en temps voulu. 11. Le risque de non-détection est propre à la mission d'audit : il correspond au risque que le commissaire aux comptes ne parvienne pas à détecter une anomalie significative. 12. Le commissaire aux comptes réduit le risque d'audit à un niveau suffisamment faible pour obtenir l'assurance recherchée nécessaire à la certification des comptes.A cette fin, il évalue le risque d'anomalies significatives et conçoit les procédures d'audit à mettre en œuvre en réponse à cette évaluation, conformément aux principes définis dans les normes d'exercice professionnel. Plus le commissaire aux comptes évalue le risque d'anomalies significatives à un niveau élevé, plus il met en œuvre de procédures d'audit complémentaires afin de réduire le risque de non-détection.
Article A823-3
La norme d'exercice professionnel relative à l'audit des comptes réalisé par plusieurs commissaires aux comptes, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE À L'AUDIT DES COMPTES RÉALISÉ PAR PLUSIEURS COMMISSAIRES AUX COMPTES
Introduction
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1. Lorsque l'audit des comptes mis en œuvre en vue de certifier les comptes d'une entité est réalisé par plusieurs commissaires aux comptes, ces derniers constituent l'organe de contrôle légal des comptes. 2. Conformément à l'article L. 823-15, les commissaires aux comptes « se livrent ensemble à l'examen contradictoire des conditions et des modalités d'établissement des comptes selon les prescriptions énoncées par une norme d'exercice professionnel. Une norme d'exercice professionnel détermine les principes de répartition des diligences à mettre en œuvre par chacun des commissaires aux comptes pour l'accomplissement de leur mission ». 3. La présente norme a pour objet de définir les principes qui régissent l'exercice collégial de l'audit des comptes.
Répartition des diligences et examen contradictoire
4. Chaque commissaire aux comptes met en œuvre les travaux qui lui permettent d'être en mesure de formuler son opinion sur les comptes de l'entité. Il tient compte des éléments collectés lors des procédures d'audit qu'il a lui-même mises en œuvre et des éléments collectés par les cocommissaires aux comptes. 5. Chaque commissaire aux comptes prend connaissance de l'entité et de son environnement, évalue le risque d'anomalies significatives au niveau des comptes pris dans leur ensemble et détermine le ou les seuils de signification aux fins de définir et de formaliser, avec les autres commissaires aux comptes, de manière concertée, leur approche d'audit ainsi que le plan de mission et le programme de travail nécessaires à sa mise en œuvre. 6. Les procédures d'audit nécessaires à la mise en œuvre du plan de mission et définies dans le programme de travail sont réparties de manière concertée entre les commissaires aux comptes. 7. La répartition entre les commissaires aux comptes des travaux nécessaires à la réalisation de l'audit des comptes est équilibrée et effectuée sur la base de critères : # quantitatifs, tel que le volume d'heures de travail estimé nécessaire à la réalisation de ces travaux, le volume horaire affecté à un des commissaires aux comptes ne devant pas être disproportionné par comparaison avec ceux attribués aux autres commissaires aux comptes ; et # qualitatifs, tels que l'expérience ou la qualification des membres des équipes d'audit. 8. Cette répartition est modifiée régulièrement pour tout ou partie au cours du mandat de manière concertée entre les commissaires aux comptes. 9. En fonction des éléments collectés lors de la mise en œuvre des procédures d'audit, les commissaires aux comptes apprécient, ensemble, tout au long de la mission, si leur évaluation du risque d'anomalies significatives au niveau des assertions reste appropriée. Le cas échéant, ils modifient la nature, le calendrier ou l'étendue des procédures planifiées. Ils revoient si nécessaire la répartition des procédures ainsi redéfinies. 10. Chaque commissaire aux comptes procède à une revue des travaux mis en œuvre par les cocommissaires aux comptes. 11. Cette revue lui permet d'apprécier si les travaux mis en œuvre par les cocommissaires aux comptes : # correspondent à ceux définis lors de la répartition ou décidés lors de la réévaluation du risque d'anomalies significatives au niveau des assertions ; # ont permis de collecter des éléments suffisants et appropriés pour permettre d'aboutir à des conclusions à partir desquelles il pourra fonder son opinion sur les comptes ; # les conclusions auxquelles les cocommissaires aux comptes ont abouti sont pertinentes et cohérentes. 12. Chaque commissaire aux comptes fait figurer dans son dossier les éléments de la revue qui permettent d'étayer son appréciation des travaux effectués par les cocommissaires aux comptes. 13. En fonction de son appréciation des travaux réalisés par les autres commissaires aux comptes et des conclusions auxquelles ces derniers ont abouti, chaque commissaire aux comptes détermine s'il convient de mettre en œuvre des procédures d'audit supplémentaires. 14. Il s'en entretient avec les autres commissaires aux comptes. Le cas échéant, ils définissent de manière concertée la nature, le calendrier et l'étendue des procédures supplémentaires à mettre en œuvre. 15.A la fin de l'audit, chaque commissaire aux comptes met en œuvre les procédures analytiques permettant la revue de cohérence d'ensemble des comptes. 16. Il vérifie également la sincérité et la concordance avec les comptes des informations données à l'occasion de l'approbation des comptes : # dans le rapport de l'organe compétent à l'organe appelé à statuer sur les comptes ; # le cas échéant, dans les autres documents adressés aux membres de l'organe appelé à statuer sur les comptes.
Communication
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17. Les commissaires aux comptes communiquent ensemble et de manière concertée à l'organe d'administration ou de surveillance de l'entité : # les éléments mentionnés à l'article L. 823-16 ; # toute autre information qu'ils estimeraient nécessaire de lui communiquer. 18. Il en est de même de toute information importante communiquée à la direction de l'entité.
Rapports
19. Les rapports établis par les commissaires aux comptes en application de textes légaux et réglementaires sont signés par chaque commissaire aux comptes. Ils mentionnent, pour chaque commissaire aux comptes, les informations prévues aux articles R. 822-93 et R. 822-94. 20. Lorsque les commissaires aux comptes ont des opinions divergentes, ils en font mention dans le rapport.
Différends entre les commissaires aux comptes
21. Si des différends professionnels surviennent au cours de la mission, les commissaires aux comptes font application des dispositions de l'article 8 du code de déontologie de la profession.
Désaccords sur le montant de la rémunération
22. En cas de désaccord entre les commissaires aux comptes et les dirigeants de l'entité sur le montant de la rémunération, les commissaires aux comptes font application des dispositions de l'article R. 823-18.
Article A823-4
La norme d'exercice professionnel relative à la documentation de l'audit des comptes, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE À LA DOCUMENTATION DE L'AUDIT DES COMPTES Introduction
1. Le commissaire aux comptes constitue pour chaque entité qu'il contrôle un dossier contenant la documentation de l'audit des comptes. Cette obligation résulte des dispositions de l'article R. 823-10. 2. Le commissaire aux comptes fait figurer dans son dossier les documents qui permettent d'étayer l'opinion formulée dans son rapport et qui permettent d'établir que l'audit des comptes a été réalisé dans le respect des textes légaux et réglementaires et conformément aux normes d'exercice professionnel. 3. La présente norme a pour objet de définir les principes relatifs à la documentation des travaux effectués par le commissaire aux comptes dans le cadre de sa mission d'audit. Certaines autres normes d'exercice professionnel apportent des précisions quant à des éléments particuliers à faire figurer au dossier sans que cela remette en cause les principes énoncés dans la présente norme.
Forme, contenu et étendue de la documentation
4. Le commissaire aux comptes consigne dans son dossier les éléments qui permettent à toute autre personne ayant une expérience de la pratique de l'audit et n'ayant pas participé à la mission d'être en mesure de comprendre : # la planification de l'audit dont les principaux éléments sont formalisés dans le plan de mission et le programme de travail ; # la nature, le calendrier et l'étendue des procédures d'audit effectuées ; # les caractéristiques qui permettent d'identifier les éléments qu'il a testés afin de préciser l'étendue des procédures mises en œuvre ; # les résultats de ces procédures et les éléments collectés ; # les problématiques concernant les éléments significatifs des comptes qui
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ont été relevées au cours de l'audit et les conclusions du commissaire aux comptes sur ces problématiques. 5. Le commissaire aux comptes formalise également dans son dossier les échanges intervenus avec la direction de l'entité ou avec d'autres interlocuteurs au titre des éléments significatifs des comptes. Lorsque le commissaire aux comptes identifie une information contradictoire ou incohérente avec la conclusion qu'il a formulée sur une problématique concernant des éléments significatifs des comptes, il documente dans le dossier la manière dont il a traité cette contradiction ou cette incohérence pour parvenir à sa conclusion finale. 6. Le commissaire aux comptes formalise la documentation sur un support papier, un support électronique ou tout support permettant de conserver l'intégralité des données lisibles pendant la durée légale de conservation du dossier. 7. En application de l'article R. 823-10, le commissaire aux comptes fournit les explications et les justifications que les autorités de contrôle estiment nécessaires. Ces explications et justifications ne constituent pas un élément de documentation même si elles sont fournies par le commissaire aux comptes pour préciser l'information contenue dans son dossier. 8. Les éléments de documentation consignés dans le dossier mentionnent l'identité du membre de l'équipe d'audit qui a effectué les travaux et leur date de réalisation.S'il existe une revue des travaux, les éléments de documentation mentionnent également l'identité de la personne qui a effectué la revue ainsi que la date et l'étendue de cette revue.
Calendrier
9. Le commissaire aux comptes documente ses travaux au fur et à mesure de leur réalisation et dans des délais compatibles avec leur revue. Au-delà de la date de signature de son rapport, le commissaire aux comptes ne peut apporter aucune modification de fond aux éléments de documentation. Il ne peut y apporter que des modifications de forme ou revoir leur classement dans un délai de quatre-vingt-dix jours après la réunion de l'organe appelé à statuer sur les comptes. 10. Lorsque le commissaire aux comptes a connaissance, entre la date de signature de son rapport et la date d'approbation des comptes, d'un événement qui le conduit à mettre en œuvre de nouvelles procédures d'audit ou à formuler de nouvelles conclusions, il complète son dossier en y consignant : # les circonstances de la survenance de cet événement ; # la nature de cet événement ; # la nature, le calendrier et l'étendue des procédures d'audit mises en œuvre en conséquence ; # les caractéristiques qui permettent d'identifier les éléments qu'il a testés afin de préciser l'étendue des procédures mises en œuvre ; # les résultats de ces procédures et les éléments collectés. Il s'agit notamment d'événements postérieurs à la clôture de l'exercice. 11. Le dossier est conservé dans son intégralité durant la durée légale de conservation de dix ans.
Article A823-5
La norme d'exercice professionnel relative à la planification de l'audit, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE À LA PLANIFICATION DE L'AUDIT Introduction
1.L'audit des comptes mis en œuvre par le commissaire aux comptes appelé à certifier les comptes d'une entité fait l'objet d'une planification. Cette planification est formalisée notamment dans un plan de mission et un programme de travail. 2. La présente norme a pour objet de définir la démarche que suit le commissaire aux comptes pour la planification de son audit des comptes et l'élaboration du plan de mission et du programme de travail.
Aspects généraux de la planification
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3. La planification consiste à prévoir : # l'approche générale des travaux ; # les procédures d'audit à mettre en œuvre par les membres de l'équipe d'audit ; # la nature et l'étendue de la supervision des membres de l'équipe d'audit et la revue de leurs travaux ; # la nature et l'étendue des ressources nécessaires pour réaliser la mission, y compris le recours éventuel à des experts ; # le cas échéant, la coordination des travaux avec les interventions d'experts ou d'autres professionnels chargés du contrôle des comptes des entités comprises dans le périmètre de consolidation. 4. Lorsque le commissariat aux comptes est exercé par plusieurs commissaires aux comptes, les éléments relatifs à la planification de l'audit sont définis de manière concertée. 5. Lorsque le commissaire aux comptes est conduit à certifier à la fois les comptes annuels et les comptes consolidés d'une entité, la planification reflète l'approche générale et les travaux prévus au titre de l'audit des comptes annuels et des comptes consolidés. 6. La planification est réalisée de façon à permettre au commissaire aux comptes, notamment sur la base d'échanges entre le signataire et les autres membres clés de l'équipe d'audit, de porter une attention appropriée aux aspects de l'audit qu'il considère essentiels, d'identifier et de résoudre les problèmes potentiels dans des délais adaptés et d'organiser la mission de façon efficace. 7. La planification est engagée : # après la mise en œuvre des vérifications liées à l'acceptation et au maintien de la mission, en particulier de celles liées aux règles déontologiques ; # après prise de contact avec le commissaire aux comptes prédécesseur dans le respect des règles de déontologie et de secret professionnel, en cas de changement de commissaire aux comptes ; # avant la mise en œuvre des procédures d'audit. 8. Le commissaire aux comptes établit par écrit un plan de mission et un programme de travail relatifs à l'audit des comptes de l'exercice. Ces documents reprennent les principaux éléments de la planification et font partie, conformément aux dispositions du deuxième alinéa de l'article R. 823-10, du dossier du commissaire aux comptes. 9. Ces documents sont établis en tenant compte de la forme juridique de l'entité contrôlée, de sa taille, de la nature de ses activités, du contrôle éventuellement exercé par l'autorité publique, de la complexité de la mission, de la méthodologie et des techniques spécifiques utilisées par le commissaire aux comptes.
Plan de mission
10. Le plan de mission décrit l'approche générale des travaux, qui comprend notamment : # l'étendue, le calendrier et l'orientation des travaux ; # le ou les seuils de signification retenus ; et # les lignes directrices nécessaires à la préparation du programme de travail.
Programme de travail
11. Le programme de travail définit la nature et l'étendue des diligences estimées nécessaires, au cours de l'exercice, à la mise en œuvre du plan de mission, compte tenu des prescriptions légales et des normes d'exercice professionnel ; il indique le nombre d'heures de travail affectées à l'accomplissement de ces diligences et les honoraires correspondants.
Modifications apportées au plan de mission et au programme de travail
12. Sur la base des éléments collectés lors de la mise en œuvre des procédures d'audit, le commissaire aux comptes peut décider de modifier les éléments planifiés et consignés dans le plan de mission et le programme de travail. Il peut être ainsi amené à modifier son approche générale, à revoir ses choix et à prévoir des travaux complémentaires ou différents. 13. Ces modifications ainsi que les raisons qui les ont motivées sont consignées dans le dossier du commissaire aux comptes.
Communication
14.A ce stade, le commissaire aux comptes peut s'entretenir des questions relatives à la planification avec les personnes appropriées au sein de l'entité.
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Paragraphe 2 : De l'analyse des risques
Article A823-6
La norme d'exercice professionnel relative aux anomalies significatives et au seuil de signification, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE AUX ANOMALIES SIGNIFICATIVES ET AU SEUIL DE SIGNIFICATION
Introduction
1. En vue de formuler son opinion sur les comptes, le commissaire aux comptes met en œuvre un audit afin d'obtenir l'assurance, élevée mais non absolue, qualifiée par convention d'« assurance raisonnable », que les comptes pris dans leur ensemble ne comportent pas d'anomalies significatives par leur montant ou par leur nature. 2. Pour évaluer le risque d'anomalies significatives en raison de leur nature, le commissaire aux comptes tient compte du fait qu'une information non chiffrée inexacte, insuffisante ou omise dans les comptes, et notamment dans l'annexe, peut être d'une importance telle qu'elle est susceptible d'influencer le jugement de l'utilisateur se fondant sur les comptes. 3. Pour évaluer le risque d'anomalies significatives, par leur montant, dans les comptes et déterminer la nature et l'étendue des procédures d'audit à mettre en œuvre à l'issue de cette évaluation, le commissaire aux comptes utilise un seuil ou des seuils de signification. Il utilise également ce seuil ou ces seuils pour évaluer l'incidence sur son opinion des anomalies détectées au cours de sa mission et non corrigées. 4. La présente norme a pour objet de définir les principes relatifs à la détermination de ce seuil ou de ces seuils et à l'évaluation de l'incidence des anomalies détectées par le commissaire aux comptes sur son opinion.
Définitions
5. Anomalie significative : information comptable ou financière inexacte, insuffisante ou omise, en raison d'erreurs ou de fraude, d'une importance telle que, seule ou cumulée avec d'autres, elle peut influencer le jugement de l'utilisateur d'une information comptable ou financière. 6. Seuil de signification : montant au-delà duquel les décisions économiques ou le jugement fondé sur les comptes sont susceptibles d'être influencés.
Détermination du seuil ou des seuils de signification
7. Lors de la planification de l'audit, le commissaire aux comptes détermine : # un seuil de signification au niveau des comptes pris dans leur ensemble ; et # le cas échéant, des seuils de signification de montants inférieurs pour certaines catégories d'opérations, certains soldes de comptes ou certaines informations fournies dans l'annexe. 8. La détermination du seuil ou des seuils de signification relève du jugement professionnel. 9. Le commissaire aux comptes identifie des critères pertinents à partir desquels, par application de taux ou d'autres modalités de calcul, il détermine le seuil ou les seuils de signification. Ces critères peuvent être, par exemple : # le résultat courant ; # le résultat net ; # le chiffre d'affaires ; # les capitaux propres ; ou # l'endettement net. 10. Le choix de ces critères dépend notamment : # de la structure des comptes de l'entité ; # de la présence dans les comptes d'éléments auxquels certains utilisateurs se fondant sur les comptes sont susceptibles d'être particulièrement attentifs ; # du secteur d'activité de l'entité ; # de la structure de l'actionnariat de l'entité ou de son financement ; # de leur variabilité dans le temps. 11. Pour apprécier si des seuils de signification d'un montant moins élevé que le seuil de signification retenu
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au niveau des comptes pris dans leur ensemble sont nécessaires pour certaines catégories d'opérations, certains soldes comptables ou certaines informations fournies dans l'annexe, le commissaire aux comptes prend notamment en compte : # les informations sensibles des comptes en fonction du secteur d'activité de l'entité ; # l'existence de règles comptables ou de textes légaux ou réglementaires spécifiques à l'entité ou à son secteur ; ou # la réalisation d'opérations particulières au cours de l'exercice.
Evolution du seuil ou des seuils de signification au cours de la mission
12. Au cours de la mission, le commissaire aux comptes modifie le seuil ou les seuils de signification s'il acquiert la connaissance de faits nouveaux ou d'évolutions de l'entité qui remettent en cause l'évaluation initiale de ces seuils. Il peut en être ainsi, par exemple, lorsque la détermination du seuil ou des seuils a été faite à partir de prévisions dont les réalisations s'écartent sensiblement.
Seuils de signification et conception des procédures d'audit
13. Le commissaire aux comptes tient compte du fait que des anomalies individuelles portant sur des montants inférieurs au seuil de signification puissent, cumulées, atteindre ce seuil. Ainsi, il choisit des montants inférieurs au seuil ou aux seuils de signification pour la mise en œuvre des procédures d'audit, par exemple, lors de ses sélections ou de ses sondages. 14. Le commissaire aux comptes détermine ces montants en fonction de sa connaissance de l'entité et de la nature et de l'importance des anomalies relevées lors des exercices précédents.
Communication des anomalies détectées
15. Au cours de la mission, le commissaire aux comptes communique à la direction de l'entité, au niveau approprié de responsabilité, les anomalies qu'il a détectées, pour qu'elles puissent être corrigées. 16. Il informe les organes mentionnés à l'article L. 823-16 des anomalies qui, seules ou cumulées, sont significatives.
Incidence des anomalies sur l'opinion
17. Pour déterminer si les anomalies détectées au cours de ses travaux et non corrigées sont significatives, le commissaire aux comptes tient compte non seulement des anomalies dont les montants, individuellement ou en cumulé, sont supérieurs au seuil ou aux seuils de signification, mais également des anomalies significatives par leur nature. 18. Lorsqu'il subsiste des anomalies significatives non corrigées, le commissaire aux comptes en tire les conséquences sur son opinion et formule une réserve ou un refus de certifier dans son rapport.
Article A823-7
La norme d'exercice professionnel relative à la connaissance de l'entité et de son environnement et évaluation du risque d'anomalies significatives dans les comptes, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL « CONNAISSANCE DE L'ENTITÉ ET DE SON ENVIRONNEMENT ET ÉVALUATION DU RISQUE D'ANOMALIES SIGNIFICATIVES DANS LES COMPTES »
Introduction
1. Le commissaire aux comptes acquiert une connaissance suffisante de l'entité, notamment de son
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contrôle interne, afin d'identifier et évaluer le risque d'anomalies significatives dans les comptes et afin de concevoir et mettre en œuvre des procédures d'audit permettant de fonder son opinion sur les comptes. 2. La présente norme a pour objet de définir les principes relatifs à la prise de connaissance de l'entité et à l'évaluation du risque d'anomalies significatives dans les comptes.
Définitions
3. Assertions : critères dont la réalisation conditionne la régularité, la sincérité et l'image fidèle des comptes. 4. Significatif : est significatif l'élément dont l'omission ou l'inexactitude est susceptible d'influencer les décisions économiques ou le jugement fondés sur les comptes. 5. Anomalie significative : information comptable ou financière inexacte, insuffisante ou omise, en raison d'erreurs ou de fraude, d'une importance telle que, seule ou cumulée avec d'autres, elle peut influencer le jugement de l'utilisateur d'une information comptable ou financière. 6. Catégorie d'opérations : ensemble d'opérations présentant des caractéristiques communes, réalisées par l'entité au cours d'une période et nécessitant chacune un enregistrement comptable. 7. Contrôles de substance : procédures d'audit mises en œuvre pour détecter les anomalies significatives au niveau des assertions. Elles incluent : # les tests de détail ; # les procédures analytiques. 8. Inspection : technique de contrôle qui consiste à : # examiner des enregistrements ou des documents, soit internes, soit externes, sous forme papier, sous forme électronique ou autres supports ; # ou à procéder à un contrôle physique des actifs corporels. 9. Observation physique : technique de contrôle qui consiste à examiner la façon dont une procédure est exécutée au sein de l'entité. 10. Procédure analytique : technique de contrôle qui consiste à apprécier des informations financières à partir : # de leurs corrélations avec d'autres informations, issues ou non des comptes, ou avec des données antérieures, postérieures ou prévisionnelles de l'entité, ou d'entités similaires ; et # de l'analyse des variations ou des tendances inattendues. 11. Test de détail : contrôle d'un élément individuel faisant partie d'une catégorie d'opérations, d'un solde de compte ou d'une information fournie dans l'annexe.
Prise de connaissance de l'entité et de son environnement
12. La prise de connaissance de l'entité permet au commissaire aux comptes de constituer un cadre de référence dans lequel il planifie son audit et exerce son jugement professionnel pour évaluer le risque d'anomalies significatives dans les comptes et répondre à ce risque tout au long de son audit. 13. Le commissaire aux comptes prend connaissance : # du secteur d'activité de l'entité, de son environnement réglementaire, notamment du référentiel comptable applicable et d'autres facteurs externes tels que les conditions économiques générales ; # des caractéristiques de l'entité qui permettent au commissaire aux comptes d'appréhender les catégories d'opérations, les soldes des comptes et les informations attendues dans l'annexe des comptes. Ces caractéristiques incluent notamment la nature de ses activités, la composition de son capital et de son gouvernement d'entreprise, sa politique d'investissement, son organisation et son financement ainsi que le choix des méthodes comptables appliquées ; # des objectifs de l'entité et des stratégies mises en œuvre pour les atteindre dans la mesure où ces objectifs pourront avoir des conséquences financières et de ce fait une incidence sur les comptes ; # de la mesure et de l'analyse des indicateurs de performance financière de l'entité ; ces éléments indiquent au commissaire aux comptes les aspects financiers que la direction considère comme constituant des enjeux majeurs ; # des éléments du contrôle interne pertinents pour l'audit.
Prise de connaissance des élémentsdu contrôle interne pertinents pour l'audit
14. La prise de connaissance des éléments du contrôle interne pertinents pour l'audit permet au commissaire aux comptes d'identifier les types d'anomalies potentielles et de prendre en considération les facteurs pouvant engendrer des risques d'anomalies significatives dans les comptes. Le commissaire aux comptes prend connaissance des éléments du contrôle interne qui contribuent à prévenir le risque d'anomalies significatives dans les comptes, pris dans leur ensemble
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et au niveau des assertions. Pour ce faire, le commissaire aux comptes prend notamment connaissance des éléments suivants : # l'environnement de contrôle, qui se traduit par le comportement des personnes constituant le gouvernement d'entreprise et de la direction, leur degré de sensibilité et les actions qu'ils mènent en matière de contrôle interne ; # les moyens mis en place par l'entité pour identifier les risques liés à son activité et leur incidence sur les comptes et pour définir les actions à mettre en œuvre en réponse à ces risques ; # les procédures de contrôle interne en place, et notamment la façon dont l'entité a pris en compte les risques résultant de l'utilisation de traitements informatisés ; ces procédures permettent à la direction de s'assurer que ses directives sont respectées ; # les principaux moyens mis en œuvre par l'entité pour s'assurer du bon fonctionnement du contrôle interne, ainsi que la manière dont sont mises en œuvre les actions correctives ; # le système d'information relatif à l'élaboration de l'information financière. A ce titre, le commissaire aux comptes s'intéresse notamment : # aux catégories d'opérations ayant un caractère significatif pour les comptes pris dans leur ensemble ; # aux procédures, informatisées ou manuelles, qui permettent d'initier, enregistrer, traiter ces opérations et de les traduire dans les comptes ; # aux enregistrements comptables correspondants, aussi bien informatisés que manuels ; # à la façon dont sont traités les événements ponctuels, différents des opérations récurrentes, susceptibles d'engendrer un risque d'anomalies significatives ; # au processus d'élaboration des comptes, y compris des estimations comptables significatives et des informations significatives fournies dans l'annexe des comptes ; # la façon dont l'entité communique sur les éléments significatifs de l'information financière et sur les rôles et les responsabilités individuelles au sein de l'entité en matière d'information financière. A ce titre, le commissaire aux comptes s'intéresse notamment à la communication entre la direction et les personnes constituant le gouvernement d'entreprise ou les autorités de contrôle, ainsi qu'aux actions de sensibilisation de la direction envers les membres du personnel afin de les informer quant à l'impact que peuvent avoir leurs activités sur l'élaboration de l'information financière.
Evaluation du risque d'anomaliessignificatives dans les comptes
15. Lors de sa prise de connaissance, le commissaire aux comptes identifie et évalue le risque d'anomalies significatives : # au niveau des comptes pris dans leur ensemble ; et # au niveau des assertions, pour les catégories d'opérations, les soldes de comptes et les informations fournies dans l'annexe des comptes. L'évaluation des risques au niveau des assertions est basée sur les éléments collectés par le commissaire aux comptes lors de la prise de connaissance de l'entité mais elle peut être remise en cause et modifiée au cours de l'audit en fonction des autres éléments collectés au cours de la mission. 16. Le commissaire aux comptes évalue la conception et la mise en œuvre des contrôles de l'entité lorsqu'il estime : # qu'ils contribuent à prévenir le risque d'anomalies significatives dans les comptes, pris dans leur ensemble ou au niveau des assertions ; # qu'ils se rapportent à un risque inhérent élevé identifié qui requiert une démarche d'audit particulière. Un tel risque est généralement lié à des opérations non courantes en raison de leur importance et de leur nature ou à des éléments sujets à interprétation, tels que les estimations comptables ; # que les seuls éléments collectés à partir des contrôles de substance ne lui permettront pas de réduire le risque d'audit à un niveau suffisamment faible pour obtenir l'assurance recherchée. 17. L'évaluation par le commissaire aux comptes de la conception et de la mise en œuvre des contrôles de l'entité consiste à apprécier si un contrôle, seul ou en association avec d'autres, est théoriquement en mesure de prévenir, détecter ou corriger les anomalies significatives dans les comptes.Techniques de contrôle utilisées pour la prise de connaissance de l'entité et l'évaluation du risque d'anomalies significatives dans les comptes 18. Pour prendre connaissance de l'entité et évaluer le risque d'anomalies significatives dans les comptes, le commissaire aux comptes collecte des informations en mettant en œuvre les techniques de contrôle suivantes : # des demandes d'informations auprès de la direction et d'autres personnes au sein de l'entité, comme le personnel de production ou les auditeurs internes qui peuvent fournir au commissaire aux comptes des perspectives différentes pour l'identification des risques ; # des procédures analytiques qui peuvent notamment permettre au commissaire aux comptes d'identifier des opérations ou des événements inhabituels ; et # des observations physiques
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et des inspections qui peuvent notamment permettre au commissaire aux comptes de recueillir des informations sur l'entité mais également de corroborer celles recueillies auprès de la direction ou d'autres personnes au sein de l'entité. 19. Lorsque le commissaire aux comptes utilise les informations qu'il a recueillies au cours des exercices précédents, il met en œuvre des procédures visant à détecter les changements survenus depuis et susceptibles d'affecter la pertinence de ces informations.
Echanges d'informations au sein de l'équipe d'audit
20. Les membres de l'équipe d'audit s'entretiennent des risques d'anomalies significatives dans les comptes. L'objectif de ces échanges est que chaque membre de l'équipe d'audit appréhende les risques pouvant exister sur les éléments qu'il est chargé de contrôler et les conséquences possibles de ses propres travaux sur l'ensemble de la mission. Le commissaire aux comptes détermine : # quels membres de l'équipe d'audit participent à ces échanges d'informations, à quel moment ils ont lieu ainsi que les thèmes qui y seront abordés en fonction du rôle, de l'expérience et des besoins d'information des membres de l'équipe ; # s'il convient d'associer aux échanges les experts qu'il aurait prévu de solliciter pour les besoins de la mission.
Communication avec les personnesconstituant le gouvernement d'entreprise
21. Le commissaire aux comptes informe, dès que possible, les personnes constituant le gouvernement d'entreprise ainsi que la direction, au niveau de responsabilité approprié, des déficiences majeures dans la conception ou la mise en œuvre du contrôle interne qu'il a relevées. Pour cela, il fait application des dispositions de la norme relative aux communications avec les personnes constituant le gouvernement d'entreprise.
Documentation des travaux
22. Le commissaire aux comptes consigne dans son dossier de travail : a) Les principaux éléments des échanges d'informations au sein de l'équipe d'audit, et notamment les décisions importantes prises à l'issue de ces échanges ; b) Les éléments importants relatifs à la prise de connaissance de l'entité, y compris de chacun des éléments du contrôle interne dont il a évalué la conception et la mise en œuvre, la source des informations obtenues et les procédures d'audit réalisées ; c) Les risques d'anomalies significatives identifiés et leur évaluation au niveau des comptes pris dans leur ensemble et au niveau des assertions ; d) Les évaluations requises par la présente norme portant sur les contrôles conçus et mis en œuvre par l'entité. 23. La manière utilisée par le commissaire aux comptes pour consigner ces informations relève de son jugement professionnel. Il peut s'agir par exemple d'une description sous forme narrative, de questionnaires ou encore de diagrammes. 24. La forme et le niveau de détail des informations ainsi consignées dépendent des nombreux éléments propres à l'entité, tels que sa taille, la nature de ses opérations ou encore son contrôle interne, mais également des techniques de contrôle mises en œuvre par le commissaire aux comptes.
Article A823-8
La norme d'exercice professionnel relative aux procédures d'audit mises en œuvre par le commissaire aux comptes à l'issue de son évaluation des risques homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL « PROCÉDURES D'AUDIT MISES EN ŒUVRE PAR LE COMMISSAIRE AUX COMPTES À L'ISSUE DE SON ÉVALUATION DES RISQUES »
Introduction
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
1. Après avoir pris connaissance de l'entité et évalué le risque d'anomalies significatives dans les comptes, le commissaire aux comptes adapte son approche générale et conçoit et met en œuvre des procédures d'audit lui permettant de fonder son opinion sur les comptes. 2. La présente norme a pour objet de définir : # les principes relatifs à l'adaptation de son approche générale et à la conception des procédures d'audit en réponse à son évaluation du risque d'anomalies significatives ; # les procédures d'audit à mettre en œuvre indépendamment de cette évaluation ; # les principes relatifs à l'évaluation du caractère suffisant et approprié des éléments collectés afin de formuler son opinion.
Définition
3. Procédures d'audit : ensemble des travaux réalisés au cours de l'audit afin de collecter les éléments permettant d'aboutir à des conclusions à partir desquelles le commissaire aux comptes fonde son opinion.
Réponse à l'évaluation du risque d'anomalies significativesau niveau des comptes pris dans leur ensemble
4. En réponse à son évaluation du risque d'anomalies significatives au niveau des comptes pris dans leur ensemble, le commissaire aux comptes adapte son approche générale de la mission. Il peut notamment pour ce faire : # affecter à la mission des collaborateurs plus expérimentés ou possédant des compétences particulières ; # recourir à un ou des experts ; # renforcer la supervision des travaux ; # introduire un degré supplémentaire d'imprévisibilité pour l'entité dans les procédures d'audit choisies ; # apporter des modifications à la nature, au calendrier ou à l'étendue des procédures d'audit. Ainsi, par exemple, s'il existe des faiblesses dans l'environnement de contrôle, le commissaire aux comptes peut choisir : # de mettre en œuvre des contrôles de substance plutôt que des tests de procédures ; # d'intervenir plutôt après la fin de l'exercice qu'en cours d'exercice ; ou # d'augmenter le nombre de sites à contrôler.
Réponse à l'évaluation du risque d'anomalies significativesau niveau des assertions
5. En réponse à son évaluation du risque au niveau des assertions, le commissaire aux comptes conçoit et met en œuvre des procédures d'audit complémentaires à celles réalisées pour cette évaluation. Ces procédures d'audit comprennent des tests de procédures, des contrôles de substance, ou une approche mixte utilisant à la fois des tests de procédures et des contrôles de substance. Le commissaire aux comptes détermine la nature, le calendrier et l'étendue des procédures d'audit qu'il réalise en mettant en évidence le lien entre ces procédures d'audit et les risques auxquels elles répondent. 6. Les facteurs à prendre en considération pour déterminer les procédures à mettre en œuvre sont : # le niveau de risque d'anomalies significatives sur les assertions considérées pour les catégories d'opérations, les soldes de comptes et les informations fournies dans l'annexe ; # la nature des contrôles mis en place par l'entité sur ces assertions et la possibilité ou non pour le commissaire aux comptes d'obtenir des éléments prouvant l'efficacité des contrôles. 7. La détermination de l'étendue d'une procédure d'audit, qui correspond au nombre d'éléments testés par cette procédure spécifique, relève du jugement professionnel du commissaire aux comptes, sachant que, plus le risque d'anomalies significatives est élevé, plus la quantité ou la qualité des éléments nécessaires pour que le commissaire aux comptes puisse fonder son opinion est élevée. 8. En termes de calendrier, le commissaire aux comptes peut décider de réaliser des procédures d'audit en cours d'exercice, en plus de celles qui seront mises en œuvre après la fin de l'exercice. Ce choix dépend notamment du niveau et de la nature du risque d'anomalies significatives, de l'environnement de contrôle interne et des informations disponibles, certaines ne pouvant être accessibles qu'à certains moments, pour des observations physiques par exemple.
Tests de procédures
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
9. Parmi les procédures d'audit, les tests de procédures permettent de collecter des éléments en vue d'apprécier l'efficacité des contrôles conçus et mis en œuvre par l'entité pour prévenir, détecter ou corriger les anomalies significatives au niveau des assertions. 10. Le commissaire aux comptes réalise des tests de procédures pour collecter des éléments suffisants et appropriés montrant que les contrôles de l'entité ont fonctionné efficacement au cours de la période contrôlée dans les cas suivants : # lorsqu'il a retenu, dans son évaluation du risque d'anomalies significatives au niveau des assertions, l'hypothèse selon laquelle les contrôles de l'entité fonctionnent efficacement ; # lorsqu'il considère que les seuls contrôles de substance ne permettent pas de réduire le risque d'audit à un niveau suffisamment faible pour obtenir l'assurance recherchée. 11. Pour être en mesure de conclure quant à l'efficacité ou non du contrôle mis en œuvre par l'entité, le commissaire aux comptes, en plus des demandes d'information, utilise une ou plusieurs autres techniques de contrôle, par exemple les procédures analytiques, l'observation physique, l'inspection, la réexécution de certains contrôles réalisés par l'entité. Les tests de procédures ne se limitent pas à des demandes d'information. 12. Plus le commissaire aux comptes s'appuie sur l'efficacité du contrôle interne dans l'évaluation du risque d'anomalies significatives, plus il étend les tests de procédures. 13. Lorsque le commissaire aux comptes collecte des éléments sur l'efficacité des contrôles de l'entité durant une période intermédiaire, il détermine les éléments complémentaires à collecter pour la période restant à couvrir jusqu'à la fin de l'exercice. 14. Lorsque le commissaire aux comptes a l'intention d'utiliser des éléments collectés au cours des exercices précédents sur l'efficacité de certains contrôles de l'entité, il met en œuvre des procédures d'audit visant à détecter si des changements susceptibles d'affecter la pertinence de ces éléments sont survenus depuis. Il recourt pour ce faire à des demandes d'information en association avec des observations physiques ou des inspections pour confirmer sa connaissance des contrôles existants. 15. Lorsqu'il détecte des changements affectant ces contrôles, il teste leur efficacité au titre de l'exercice sur lequel porte sa mission. 16. Lorsque aucun changement n'a affecté ces contrôles, il teste leur efficacité au moins une fois tous les trois exercices. Cette possibilité ne doit cependant pas l'amener à tester tous les contrôles sur un seul exercice sans effectuer de tests de procédures sur chacun des deux exercices suivants. 17. Lorsque, lors de son évaluation du risque d'anomalies significatives, le commissaire aux comptes a identifié un risque inhérent élevé qui requiert une démarche d'audit particulière et qu'il prévoit de s'appuyer sur les contrôles de l'entité destinés à réduire ce risque, il teste l'efficacité de ces contrôles au titre de l'exercice sur lequel porte sa mission, même si ces contrôles n'ont pas fait l'objet de changements susceptibles d'affecter leur efficacité depuis l'audit précédent.
Contrôles de substance
18. Lorsque, lors de son évaluation du risque d'anomalies significatives, le commissaire aux comptes a identifié un risque inhérent élevé qui requiert une démarche d'audit particulière, il met en œuvre des contrôles de substance qui répondent spécifiquement à ce risque. 19. Plus le commissaire aux comptes estime que le risque d'anomalies significatives est élevé, plus les contrôles de substance qu'il réalise sont étendus. Par ailleurs, étant donné que le risque d'anomalies significatives intègre le risque lié au contrôle, des résultats des tests de procédures non satisfaisants augmentent l'étendue des contrôles de substance nécessaires. 20. Lorsque les contrôles de substance sont réalisés à une date intermédiaire, le commissaire aux comptes met en œuvre des contrôles de substance complémentaires, en association ou non avec des tests de procédures, pour couvrir la période subséquente et lui permettre d'étendre les conclusions de ses contrôles de la date intermédiaire à la fin de l'exercice.
Procédures d'audit indépendantesde l'évaluation du risque d'anomalies significatives
21. Indépendamment de l'évaluation du risque d'anomalies significatives, le commissaire aux comptes conçoit et met en œuvre des contrôles de substance pour chaque catégorie d'opérations, solde de compte et information fournie dans l'annexe, dès lors qu'ils ont un caractère significatif. 22.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
De plus, le commissaire aux comptes met en œuvre les procédures d'audit suivantes : # rapprochement des comptes annuels ou consolidés avec les documents comptables dont ils sont issus ; # examen des écritures comptables significatives, y compris des ajustements effectués lors de la clôture des comptes ; et # évaluation de la conformité au référentiel comptable applicable de la présentation des comptes, y compris les informations fournies en annexe.
Evaluation du caractère suffisant et appropriédes éléments collectés
23. En fonction des éléments collectés, le commissaire aux comptes apprécie, tout au long de sa mission, si son évaluation du risque d'anomalies significatives au niveau des assertions reste appropriée. 24. En effet, les éléments collectés peuvent conduire le commissaire aux comptes à modifier la nature, le calendrier ou l'étendue des procédures d'audit planifiées, lorsque les informations obtenues diffèrent de celles prises en compte pour l'évaluation des risques et l'amènent à réviser cette évaluation. 25. Le commissaire aux comptes conclut sur le caractère suffisant et approprié des éléments collectés afin de réduire le risque d'audit à un niveau suffisamment faible pour obtenir l'assurance recherchée. Pour ce faire, le commissaire aux comptes tient compte à la fois des éléments qui confirment et de ceux qui contredisent le respect des assertions. 26. Si le commissaire aux comptes n'a pas obtenu d'éléments suffisants et appropriés pour confirmer un élément significatif au niveau des comptes, il s'efforce d'obtenir des éléments complémentaires. S'il n'est pas en mesure de collecter des éléments suffisants et appropriés, il formule une opinion avec réserve ou un refus de certifier.
Documentation
27. Le commissaire aux comptes consigne dans son dossier : a) L'adaptation de son approche générale en réponse au risque d'anomalies significatives au niveau des comptes pris dans leur ensemble ; b) La nature, le calendrier et l'étendue des procédures d'audit conçues et mises en œuvre en réponse à son évaluation du risque d'anomalies significatives ; c) Le lien entre ces procédures et les risques évalués au niveau des assertions ; et d) Les conclusions des procédures d'audit. De plus, lorsque le commissaire aux comptes utilise des éléments sur l'efficacité des contrôles internes collectés lors d'audits précédents, il consigne dans son dossier ses conclusions sur le fait qu'il peut s'appuyer sur ces contrôles.
Paragraphe 3 : Des techniques de contrôle
Article A823-9
La norme d'exercice professionnel relative au caractère probant des éléments collectés, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL« CARACTÈRE PROBANT DES ÉLÉMENTS COLLECTÉS »Introduction
l. Tout au long de son audit des comptes, le commissaire aux comptes collecte des éléments qui lui permettent d'aboutir à des conclusions à partir desquelles il fonde son opinion sur les comptes. 2. La présente norme a pour objet de définir le caractère probant des éléments collectés par le commissaire aux comptes dans le cadre de l'audit des comptes et les techniques de contrôle qui lui permettent de les collecter.
Définition
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
3. Assertions : critères dont la réalisation conditionne la régularité, la sincérité et l'image fidèle des comptes.
Caractère probant
4. Les éléments collectés par le commissaire aux comptes comprennent à la fois les informations recueillies au cours de l'audit, celles, le cas échéant, recueillies lors des audits portant sur les exercices précédents et lors d'autres interventions, ou encore celles recueillies dans le cadre de l'acceptation ou du maintien de la mission. 5. Ces éléments apportent au commissaire aux comptes des éléments de preuves ou des présomptions quant au respect d'une ou plusieurs assertions. Ces éléments doivent être suffisants et appropriés pour lui permettre de fonder son opinion sur les comptes. 6. Le caractère approprié est fonction de la qualité des éléments collectés, c'est-à-dire de leur fiabilité et de leur pertinence. Le caractère suffisant s'apprécie par rapport à la quantité d'éléments collectés. La quantité d'éléments à collecter dépend du risque d'anomalies significatives mais aussi de la qualité des éléments collectés. Le degré de fiabilité des éléments collectés dépend de leur origine, de leur nature et des circonstances particulières dans lesquelles ils ont été recueillis. Ainsi, en principe : # les éléments collectés d'origine externe sont plus fiables que ceux d'origine interne. Pour cette raison, lorsque le commissaire aux comptes utilise des informations produites par l'entité pour mettre en œuvre des procédures d'audit, il collecte des éléments concernant leur exactitude et leur exhaustivité ; # les éléments collectés d'origine interne sont d'autant plus fiables que le contrôle interne est efficace ; # les éléments obtenus directement par le commissaire aux comptes, par exemple lors d'une observation physique, sont plus fiables que ceux obtenus par des demandes d'information ; # les éléments collectés sont plus fiables lorsqu'ils sont étayés par des documents ; # enfin, les éléments collectés constitués de documents originaux sont plus fiables que ceux constitués de copies. 7. Dans le cadre de son appréciation de la fiabilité des éléments collectés, le commissaire aux comptes garde un esprit critique quant aux indices qui pourraient remettre en cause leur validité. En cas de doute, il mène plus avant ses investigations. Ainsi, lorsqu'un élément collecté n'est pas cohérent par rapport à un autre, le commissaire aux comptes détermine les procédures d'audit complémentaires à mettre en place pour élucider cette incohérence. 8. Pour fonder son opinion, le commissaire aux comptes n'est pas tenu d'examiner toutes les informations disponibles dans l'entité dans la mesure où il peut généralement conclure sur la base d'approches par sondage et d'autres moyens de sélection d'éléments à tester.
Assertions et collecte des éléments
9. Les éléments collectés apportent au commissaire aux comptes des éléments de preuves ou des présomptions quant au respect d'une ou plusieurs des assertions suivantes : Assertions concernant les flux d'opérations et les événements survenus au cours de la période : # réalité : les opérations et les événements qui ont été enregistrés se sont produits et se rapportent à l'entité ; # exhaustivité : toutes les opérations et tous les événements qui auraient dû être enregistrés sont enregistrés ; # mesure : les montants et autres données relatives aux opérations et événements ont été correctement enregistrés ; # séparation des exercices : les opérations et les événements ont été enregistrés dans la bonne période ; # classification : les opérations et les événements ont été enregistrés dans les comptes adéquats. Les assertions concernant les soldes des comptes en fin de période : # existence : les actifs et les passifs existent ; # droits et obligations : l'entité détient et contrôle les droits sur les actifs, et les dettes correspondent aux obligations de l'entité ; # exhaustivité : tous les actifs et les passifs qui auraient dû être enregistrés l'ont bien été ; # évaluation et imputation : les actifs et les passifs sont inscrits dans les comptes pour des montants appropriés et tous les ajustements résultant de leur évaluation ou imputation sont correctement enregistrés. Les assertions concernant la présentation des comptes et les informations fournies dans l'annexe : # réalité et droits et obligations : les événements, les transactions et les autres éléments fournis se sont produits et se rapportent à l'entité ; # exhaustivité : toutes les informations relatives à l'annexe des comptes requises par le
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
référentiel comptable ont été fournies ; # présentation et intelligibilité : l'information financière est présentée et décrite de manière appropriée, et les informations données dans l'annexe des comptes sont clairement présentées ; # mesure et évaluation : les informations financières et les autres informations sont données fidèlement et pour les bons montants.
Techniques de contrôle
10. Pour collecter les éléments nécessaires dans le cadre de l'audit des comptes, le commissaire aux comptes choisit parmi les techniques suivantes : # l'inspection des enregistrements ou des documents, qui consiste à examiner des enregistrements ou des documents, soit internes soit externes, sous forme papier, sous forme électronique ou autres supports ; # l'inspection des actifs corporels, qui correspond à un contrôle physique des actifs corporels ; # l'observation physique, qui consiste à examiner la façon dont une procédure est exécutée au sein de l'entité ; # la demande d'information, qui peut être adressée à des personnes internes ou externes à l'entité ; # la demande de confirmation des tiers, qui consiste à obtenir de la part d'un tiers une déclaration directement adressée au commissaire aux comptes concernant une ou plusieurs informations ; # la vérification d'un calcul ; # la réexécution de contrôles, qui porte sur des contrôles réalisés à l'origine par l'entité ; # les procédures analytiques, qui consistent à apprécier des informations financières à partir : # de leurs corrélations avec d'autres informations, issues ou non des comptes, ou avec des données antérieures, postérieures ou prévisionnelles de l'entité ou d'entités similaires ; et # de l'analyse des variations significatives ou des tendances inattendues. 11. Ces techniques de contrôle peuvent s'utiliser seules ou en combinaison à tous les stades de l'audit des comptes.
Article A823-10
La norme d'exercice professionnel relative au caractère probant des éléments collectés (applications spécifiques), homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVEAU CARACTÈRE PROBANT DES ÉLÉMENTS COLLECTÉSIntroduction
1. La présente norme a pour objet de définir les procédures d'audit à mettre en œuvre par le commissaire aux comptes pour collecter des éléments qui lui permettent d'aboutir à des conclusions au titre : # de l'inventaire physique des stocks ; # des procès, contentieux et litiges ; # des immobilisations financières ; # des informations sectorielles données dans l'annexe des comptes. 2. Les procédures définies dans cette norme ne dispensent pas le commissaire aux comptes de mettre en œuvre les principes et les procédures définies dans les autres normes d'exercice professionnel pour les éléments mentionnés ci-dessus.
Inventaire physique des stocks
3. Lorsque le commissaire aux comptes estime que les stocks sont significatifs, il assiste à la prise d'inventaire physique afin de collecter des éléments suffisants et appropriés sur l'existence et sur l'état physique de ceux-ci. La présence à la prise d'inventaire permet au commissaire aux comptes de vérifier que les procédures définies par la direction pour l'enregistrement et le contrôle des résultats des comptages sont appliquées et d'en apprécier la fiabilité. 4. Lorsque les stocks sont répartis sur plusieurs sites, le commissaire aux comptes détermine les lieux où il estime que sa présence à l'inventaire physique est nécessaire. Pour ce faire, il tient compte du risque d'anomalies significatives au niveau des stocks de chaque site. 5. Si, en raison de circonstances imprévues, le commissaire aux comptes ne peut être présent à la date prévue pour la prise d'inventaire physique, et dans la mesure où il existe un inventaire permanent, il intervient à une autre date : # soit en
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
procédant lui-même à des comptages physiques ; # soit en assistant à des tels comptages. Il effectue également, s'il le juge nécessaire, des contrôles sur les mouvements intercalaires. 6. Lorsque sa présence à la prise d'inventaire physique est impossible, notamment en raison de la nature et du lieu de cet inventaire, le commissaire aux comptes détermine s'il peut mettre en œuvre des procédures d'audit alternatives fournissant des éléments présentant un caractère probant équivalent.
Procès, contentieux et litiges
7. Le commissaire aux comptes met en œuvre des procédures d'audit afin d'identifier les procès, contentieux ou litiges impliquant l'entité susceptibles d'engendrer des risques d'anomalies significatives dans les comptes. Si le commissaire aux comptes a identifié de tels risques, il demande à la direction de l'entité d'obtenir de ses avocats des informations sur ces procès, contentieux ou litiges et de les lui communiquer. 8. Si la direction de l'entité refuse de demander des informations à ses avocats ou de communiquer au commissaire aux comptes les informations obtenues, le commissaire aux comptes en tire les conséquences éventuelles dans son rapport.
Immobilisations financières
9. Lorsque le commissaire aux comptes estime que les immobilisations financières sont significatives, il met en œuvre des procédures d'audit destinées à vérifier leur évaluation et leur imputation et à apprécier les informations fournies dans l'annexe.
Informations sectorielles données dans l'annexe des comptes
10. Lorsque le commissaire aux comptes estime que les informations sectorielles sont significatives, il collecte des éléments destinés à apprécier l'information fournie dans l'annexe des comptes de l'entité. A cette fin, il met notamment en œuvre des procédures analytiques et s'entretient avec la direction sur des méthodes utilisées pour l'établissement de ces informations.
Article A823-11
La norme d'exercice professionnel relative aux demandes de confirmation des tiers, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVEAUX DEMANDES DE CONFIRMATION DES TIERSIntroduction
1. Pour collecter les éléments qui lui permettent d'aboutir à des conclusions à partir desquelles il fonde son opinion sur les comptes, le commissaire aux comptes choisit parmi différentes techniques de contrôle, dont celle de la demande de confirmation des tiers. 2. La présente norme a pour objet de définir les principes relatifs à l'utilisation de cette technique par le commissaire aux comptes.
Caractéristiques de la demande de confirmation des tiers
3. La demande de confirmation des tiers consiste à obtenir de la part d'un tiers une déclaration directement adressée au commissaire aux comptes concernant une ou plusieurs informations. 4. Il y a lieu de distinguer la demande de confirmation fermée par laquelle il est demandé au tiers de donner son accord sur l'information fournie de la demande de confirmation ouverte par laquelle il est demandé au tiers de fournir lui-même l'information. 5. Cette technique de contrôle est généralement utilisée pour confirmer un solde de compte et les éléments le composant, mais elle peut aussi permettre de confirmer : # les termes d'un contrat ou l'absence d'accords particuliers susceptibles d'avoir une incidence sur la comptabilisation de produits ; # ou encore l'absence
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d'engagements hors bilan. 6. Le commissaire aux comptes utilise cette technique de contrôle lorsqu'il l'estime nécessaire à la collecte d'éléments suffisants et appropriés pour vérifier une assertion. Pour ce faire, il prend en compte le risque d'anomalies significatives au niveau de l'assertion et ce qui est attendu des autres procédures d'audit planifiées en terme de réduction de ce risque. 7. L'utilité de cette technique de contrôle n'est pas la même selon l'assertion à vérifier. Si elle permet par exemple de collecter des éléments fiables et pertinents sur l'existence de créances clients, elle ne permet généralement pas de collecter des éléments sur l'évaluation de ces créances, en raison de la difficulté d'interroger un tiers sur sa capacité à s'en acquitter.
Mise en œuvre de la demande de confirmation des tiers
8. Le commissaire aux comptes détermine le contenu des demandes de confirmation des tiers en fonction notamment des assertions concernées et des facteurs susceptibles d'affecter la fiabilité des réponses tels que la nature de la demande de confirmation, fermée ou ouverte, ou encore son expérience acquise lors de ses audits précédents. 9. Le commissaire aux comptes a la maîtrise de la sélection des tiers à qui il souhaite adresser les demandes de confirmation, de la rédaction et de l'envoi de ces demandes, ainsi que de la réception des réponses. 10. Si la direction de l'entité s'oppose aux demandes de confirmation des tiers envisagées par le commissaire aux comptes, il examine si ce refus se fonde sur des motifs valables et collecte sur ces motifs des éléments suffisants et appropriés. 11. S'il considère que le refus de la direction est fondé, le commissaire aux comptes met en œuvre des procédures d'audit alternatives afin d'obtenir les éléments suffisants et appropriés sur le ou les points concernés par les demandes. 12. S'il considère que le refus de la direction n'est pas fondé, le commissaire aux comptes en tire les conséquences éventuelles dans son rapport.
Evaluation des résultats de la demande de confirmation des tiers
13. Lorsque le commissaire aux comptes n'obtient pas de réponse à une demande de confirmation, il met en œuvre des procédures d'audit alternatives permettant de collecter les éléments qu'il estime nécessaires pour vérifier les assertions faisant l'objet du contrôle. 14. Lorsque la demande de confirmation des tiers et les procédures alternatives mises en œuvre par le commissaire aux comptes ne lui permettent pas de collecter les éléments suffisants et appropriés pour vérifier une assertion donnée, il met en œuvre des procédures d'audit supplémentaires afin de les obtenir. 15. Le commissaire aux comptes évalue si les résultats des demandes de confirmation des tiers et des procédures d'audit alternatives et supplémentaires mises en œuvre apportent des éléments suffisants et appropriés pour vérifier les assertions faisant l'objet du contrôle.
Article A823-12
La norme d'exercice professionnel relative aux procédures analytiques, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVEAUX PROCÉDURES ANALYTIQUESIntroduction
1. Pour collecter les éléments qui lui permettent d'aboutir à des conclusions à partir desquelles il fonde son opinion sur les comptes, le commissaire aux comptes utilise différentes techniques de contrôle, dont celle des procédures analytiques. 2. La présente norme a pour objet de définir les principes relatifs à l'utilisation de cette technique par le commissaire aux comptes.
Définitions
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
3. Contrôles de substance : procédures d'audit mises en œuvre pour détecter les anomalies significatives au niveau des assertions. Elles incluent : # les tests de détail ; # les procédures analytiques. 4. Procédure analytique : technique de contrôle qui consiste à apprécier des informations financières à partir : # de leurs corrélations avec d'autres informations, issues ou non des comptes, ou avec des données antérieures, postérieures ou prévisionnelles de l'entité ou d'entités similaires ; # et de l'analyse des variations significatives ou des tendances inattendues.
Mise en œuvre des procédures analytiques
5. Le commissaire aux comptes met en œuvre des procédures analytiques lors de la prise de connaissance de l'entité et de son environnement et de l'évaluation du risque d'anomalies significatives dans les comptes. A ce stade, l'utilisation de cette technique peut notamment permettre au commissaire aux comptes d'identifier des opérations ou des événements inhabituels. 6. Lorsque le commissaire aux comptes conçoit les contrôles de substance à mettre en œuvre, en réponse à son évaluation du risque au niveau des assertions et pour les catégories d'opérations, les soldes de comptes et les informations fournies dans l'annexe qui ont un caractère significatif, il peut utiliser les procédures analytiques en tant que contrôles de substance. C'est le cas par exemple lorsqu'il estime que ces procédures, seules ou combinées avec d'autres, sont plus efficaces que les seuls tests de détail. 7. Le commissaire aux comptes met en œuvre des procédures analytiques lors de la revue de la cohérence d'ensemble des comptes, effectuée à la fin de l'audit. L'application de cette technique lui permet d'analyser la cohérence d'ensemble des comptes au regard des éléments collectés tout au long de l'audit, sur l'entité et son secteur d'activité. 8. Lorsque les procédures analytiques mettent en évidence des informations qui ne sont pas en corrélation avec d'autres informations ou des variations significatives ou des tendances inattendues, le commissaire aux comptes détermine les procédures d'audit à mettre en place pour élucider ces variations et ces incohérences. 9. Lorsque les procédures analytiques conduisent le commissaire aux comptes à identifier des risques non détectés jusqu'alors, il apprécie la nécessité de compléter les procédures d'audit qu'il a réalisées.
Article A823-13
La norme d'exercice professionnel relative à la sélection des éléments à contrôler, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVEÀ LA SÉLECTION DES ÉLÉMENTS À CONTRÔLERIntroduction
1. Lorsque, dans le cadre de l'audit des comptes, le commissaire aux comptes met en œuvre des tests de procédures ou des tests de détail, il sélectionne les éléments sur lesquels portent ces procédures d'audit. 2. La présente norme a pour objet de définir les principes relatifs à l'utilisation par le commissaire aux comptes de méthodes de sélection dans le cadre de l'audit des comptes.
Définition
3. Population : ensemble des données à partir desquelles le commissaire aux comptes sélectionne un échantillon et sur lesquelles il souhaite parvenir à une conclusion. Une population peut par exemple être constituée de tous les éléments d'un solde de compte ou d'une catégorie d'opérations.
Méthodes de sélection d'éléments à contrôler
4. Lors de la conception des procédures d'audit à mettre en œuvre, le commissaire aux comptes détermine, sur la base de son jugement professionnel, les méthodes appropriées de sélection des
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éléments à contrôler. En fonction des caractéristiques de la population qu'il veut contrôler, le commissaire aux comptes utilise une ou plusieurs des méthodes de sélection suivantes : # la sélection de tous les éléments ; # la sélection d'éléments spécifiques ; # les sondages.
Sélection de tous les éléments
5. Cette méthode de sélection est principalement utilisée lorsque la population est constituée d'un petit nombre d'éléments.
Sélection d'éléments spécifiques
6. En fonction de la connaissance qu'il a acquise de l'entité et de son environnement et de son évaluation du risque d'anomalies significatives, le commissaire aux comptes peut décider d'utiliser cette méthode de sélection notamment lorsqu'il estime pertinent : # de couvrir, en valeur, une large proportion de la population. Dans ce cas et lorsque les caractéristiques de la population le permettent, le commissaire aux comptes sélectionne les éléments dont le montant est supérieur à un montant donné qu'il fixe pour cette sélection, conformément aux principes définis dans la norme relative aux anomalies significatives et au seuil de signification ; # de contrôler des éléments inhabituels en raison de leur importance ou de leur nature.
Sondages
7. Un sondage donne à tous les éléments d'une population une chance d'être sélectionnés. Les techniques de sélection d'échantillons dans le cadre de sondages peuvent être statistiques ou non statistiques.
Analyse des résultats des contrôles et conséquences sur l'audit
8. Quelle que soit la méthode de sélection des éléments à contrôler qu'il retient, le commissaire aux comptes en fonction du résultat des procédures mises en œuvre : # apprécie si l'évaluation du risque d'anomalies significatives au niveau des assertions, qu'il avait définie pour cette population, reste appropriée ; # conclut sur le caractère suffisant et approprié des éléments collectés ; # tire les conséquences, sur sa mission, des anomalies identifiées conformément aux principes définis dans les normes d'exercice professionnel relatives aux anomalies significatives et au seuil de signification. 9. En outre, lorsque le commissaire aux comptes a sélectionné des éléments d'une population par sondages, il tire du contrôle de ces éléments une conclusion sur toute la population. Lorsque les résultats de ce contrôle révèlent des anomalies, le commissaire aux comptes en apprécie la nature et la cause. Selon qu'il estime qu'il s'agit d'une situation ponctuelle qui survient à partir d'un événement isolé ou qu'elle est représentative de situations similaires dans la population, le commissaire aux comptes en apprécie les conséquences sur l'ensemble de la population.
Article A823-14
La norme d'exercice professionnel relative aux déclarations de la direction, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNELRELATIVE AUX DÉCLARATIONS DE LA DIRECTIONIntroduction
1. Dans le cadre de l'audit des comptes, les membres de la direction, y compris le représentant légal, font des déclarations au commissaire aux comptes. Celles-ci constituent des éléments collectés pour aboutir à des conclusions sur lesquelles il fonde son opinion sur les comptes. 2. La présente norme a
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
pour objet de définir : # les principes relatifs à l'utilisation par le commissaire aux comptes des déclarations de la direction obtenues au cours de l'audit des comptes ; # les principes relatifs aux déclarations que le commissaire aux comptes estime nécessaires pour conclure sur les assertions qu'il souhaite vérifier ; # les conséquences éventuelles que le commissaire aux comptes tire sur l'expression de son opinion du fait que le représentant légal responsable des comptes ne lui fournit pas les déclarations écrites demandées.
Utilisation des déclarations de la direction
3. Tout au long de l'audit des comptes, la direction fait, au commissaire aux comptes, des déclarations, orales ou écrites, spontanées ou en réponse à des demandes spécifiques. Ces déclarations peuvent être faites par des membres de la direction de niveaux de responsabilité et de domaines de compétence différents selon les éléments sur lesquels portent les déclarations. 4. Lorsqu'elles concernent des éléments significatifs des comptes, le commissaire aux comptes : # cherche à collecter des éléments qui corroborent les déclarations de la direction ; # apprécie, le cas échéant, si elles sont cohérentes avec les autres éléments collectés ; # détermine si les personnes à l'origine de ces déclarations sont celles qui possèdent la meilleure compétence et la meilleure connaissance au regard des éléments sur lesquels elles se prononcent. 5. Lorsque le commissaire aux comptes identifie une déclaration de la direction qui ne semble pas cohérente avec d'autres éléments collectés, il met en œuvre des procédures d'audit afin d'élucider cette incohérence et, le cas échéant, reconsidère les autres déclarations de la direction de l'entité.
Déclarations que le commissaire aux comptes estime nécessairespour conclure sur les assertions qu'il souhaite vérifier
6. Le commissaire aux comptes demande au représentant légal une formulation écrite des déclarations qu'il estime nécessaires pour conclure sur les assertions qu'il souhaite vérifier. 7. Indépendamment d'autres déclarations écrites que le commissaire aux comptes estimerait nécessaires, il demande au représentant légal des déclarations écrites par lesquelles : # il déclare que des contrôles destinés à prévenir et à détecter les erreurs et les fraudes ont été conçus et mis en œuvre dans l'entité ; # il estime que les anomalies non corrigées relevées par le commissaire aux comptes ne sont pas, seules ou cumulées, significatives au regard des comptes pris dans leur ensemble. Un état de ces anomalies non corrigées est joint à cette déclaration écrite. En outre, lorsque le représentant légal considère que certains éléments reportés sur cet état ne constituent pas des anomalies, il le mentionne dans sa déclaration ; # il confirme lui avoir communiqué son appréciation sur le risque que les comptes puissent comporter des anomalies significatives résultant de fraudes ; # il déclare lui avoir signalé toutes les fraudes avérées dont il a eu connaissance ou qu'il a suspectées, et impliquant la direction, des employés ayant un rôle clé dans le dispositif de contrôle interne ou d'autres personnes dès lors que la fraude est susceptible d'entraîner des anomalies significatives dans les comptes ; # il déclare lui avoir signalé toutes les allégations de fraudes ayant un impact sur les comptes de l'entité et portées à sa connaissance par des employés, anciens employés, analystes, régulateurs ou autres ; # il déclare avoir, au mieux de sa connaissance, appliqué les textes légaux et réglementaires ; # il déclare avoir fourni dans l'annexe des comptes, au mieux de sa connaissance, l'information sur les parties liées requise par le référentiel comptable appliqué ; # lorsque des faits ou événements susceptibles de remettre en cause la continuité de l'exploitation de l'entité ont été identifiés, il déclare lui avoir communiqué les plans d'actions définis pour l'avenir de l'entité. Il déclare en outre que ces plans d'actions reflètent les intentions de la direction ; # il déclare que les principales hypothèses retenues pour l'établissement des estimations comptables reflètent les intentions de la direction et la capacité de l'entité, à ce jour, à mener à bien les actions envisagées ; # il déclare qu'à ce jour il n'a connaissance d'aucun événement survenu depuis la date de clôture de l'exercice qui nécessiterait un traitement comptable ou une mention dans l'annexe et/ou dans le rapport de l'organe compétent à l'organe appelé à statuer sur les comptes. 8. Les déclarations écrites peuvent prendre la forme : # d'une lettre du représentant légal adressée au
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commissaire aux comptes, qualifiée de « lettre d'affirmation » ; # d'une lettre adressée par le commissaire aux comptes au représentant légal dans laquelle il explicite sa compréhension de ces déclarations. Par ailleurs, certaines déclarations du représentant légal peuvent être consignées dans un extrait de procès-verbal d'une réunion de l'organe chargé de l'administration. 9. Lorsque le commissaire aux comptes sollicite une lettre d'affirmation, il demande que le signataire précise qu'il établit cette lettre en tant que responsable de l'établissement des comptes, que la lettre soit datée et signée et qu'elle lui soit envoyée directement. Lorsqu'une des déclarations porte sur un élément spécifique des comptes qui demande des compétences techniques particulières, celle-ci peut être cosignée par le membre de la direction compétent sur le sujet. 10. La lettre d'affirmation est émise à une date la plus rapprochée possible de la date de signature du rapport du commissaire aux comptes et ne peut être postérieure à cette dernière. 11. Lorsque le commissaire aux comptes adresse une lettre au représentant légal, il lui demande d'en accuser réception et de confirmer par écrit son accord sur les termes exposés à une date la plus rapprochée possible de la date de signature de son rapport. Cette confirmation ne peut être postérieure à la date de signature du rapport. 12. Lorsque des déclarations du représentant légal sont consignées dans un extrait de procès-verbal d'une réunion de l'organe chargé de l'administration, le commissaire aux comptes s'assure que la date de la réunion concernée est suffisamment proche de la date de signature de son rapport.Conséquences sur l'expression de l'opinion du commissaire aux comptes du fait que le représentant légal ne fournit pas les déclarations écrites demandées 13. Lorsque le représentant légal refuse de fournir ou de confirmer une ou plusieurs des déclarations écrites demandées par le commissaire aux comptes, celui-ci s'enquiert auprès de lui des raisons de ce refus. En fonction des réponses formulées, le commissaire aux comptes tire les conséquences éventuelles sur l'expression de son opinion.
Documentation
14. Le commissaire aux comptes conserve dans son dossier de travail les comptes rendus de ses entretiens avec la direction de l'entité et les déclarations écrites obtenues de cette dernière.
Paragraphe 4 : Des contrôles des risques spécifiques au cours de la mission
Article A823-15
La norme d'exercice professionnel relative à la prise en considération de la possibilité de fraudes lors de l'audit des comptes, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE À LA PRISE EN CONSIDÉRATION DE LA POSSIBILITÉ DE FRAUDES LORS DE L'AUDIT DES COMPTESIntroduction
1. Lors de la planification et de la réalisation de son audit, le commissaire aux comptes identifie et évalue le risque d'anomalies significatives dans les comptes et conçoit les procédures d'audit à mettre en œuvre en réponse à cette évaluation. Ces anomalies peuvent résulter d'erreurs mais aussi de fraudes. 2. La présente norme a pour objet de définir les procédures d'audit spécifiques relatives : # à l'identification et à l'évaluation du risque d'anomalies significatives résultant de fraudes, dans les comptes ; # à l'adaptation de l'approche générale et à la conception des procédures d'audit en réponse à cette évaluation. 3. Cette norme s'applique aux fraudes susceptibles d'entraîner des anomalies significatives dans les comptes, à savoir : # les actes intentionnels portant atteinte à l'image fidèle des comptes et de nature à induire en erreur l'utilisateur de ces comptes ; # le
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détournement d'actifs.
Caractéristiques de la fraude
4. La fraude se distingue de l'erreur par son caractère intentionnel. 5. Le risque de ne pas détecter une anomalie significative dans les comptes est plus élevé en cas de fraude qu'en cas d'erreur parce que la fraude est généralement accompagnée de procédés destinés à dissimuler les faits. 6. Conformément au principe défini dans la norme Principes applicables à l'audit des comptes mis en œuvre dans le cadre de la certification des comptes, le commissaire aux comptes fait preuve d'esprit critique et tient compte, tout au long de son audit, du fait qu'une anomalie significative résultant d'une fraude puisse exister.
Echanges d'informations au sein de l'équipe d'audit
7. Lors de la planification de l'audit, les membres de l'équipe d'audit s'entretiennent du risque d'anomalies significatives résultant de fraudes. Ces échanges permettent notamment au commissaire aux comptes d'apprécier les réponses à apporter à ce risque. 8. Le commissaire aux comptes détermine quels membres de l'équipe d'audit participent à ces échanges ainsi que les informations à communiquer aux membres de l'équipe qui n'y ont pas participé. 9. Les échanges peuvent porter, notamment, sur les éléments des comptes susceptibles de contenir des anomalies significatives résultant de fraudes ou sur les facteurs externes ou internes à l'entité susceptibles de créer, à l'égard de la direction et d'autres personnes au sein de l'entité, des incitations, des pressions ou des opportunités pour commettre une fraude. 10. Ces échanges peuvent permettre de répartir les différentes procédures d'audit à mettre en œuvre au sein de l'équipe d'audit. 11. Ces échanges se poursuivent, si nécessaire, au cours de la mission. Prise de connaissance de l'entité et de son environnement et évaluation du risque d'anomalies significatives résultant de fraudes 12. Afin d'identifier le risque d'anomalies significatives résultant de fraudes, le commissaire aux comptes, lors de sa prise de connaissance de l'entité et de son environnement, met en œuvre des procédures d'audit qui consistent à : # s'enquérir du risque de fraude ; # prendre connaissance de la façon dont l'organe d'administration ou de surveillance exerce sa surveillance en matière de risque de fraude ; # analyser les facteurs de risque de fraude. Par ailleurs, il tient compte des résultats des procédures analytiques et des informations obtenues à l'occasion d'autres procédures d'audit mises en œuvre dans le cadre de sa mission. 13. Parce que la direction est responsable du contrôle interne mis en place dans l'entité et de la préparation des comptes, le commissaire aux comptes s'enquiert auprès d'elle : # de l'appréciation qu'elle a du risque que les comptes comportent des anomalies significatives résultant de fraudes ; # des procédures qu'elle a mises en place pour identifier les risques de fraude dans l'entité et pour y répondre, y compris les risques spécifiques qu'elle aurait identifiés, ou les catégories d'opérations, les soldes de comptes ou les informations fournies dans l'annexe au titre desquels un risque de fraude peut exister ; # le cas échéant, des informations qu'elle a communiquées à l'organe d'administration ou de surveillance sur les procédures mises en place pour identifier les risques de fraude dans l'entité et y répondre ; # le cas échéant, des informations qu'elle a communiquées aux employés sur sa vision de la conduite des affaires et sur la politique éthique de l'entité ; # de la connaissance éventuelle par celle-ci de fraudes avérées, suspectées ou simplement alléguées concernant l'entité. 14. Le commissaire aux comptes s'enquiert par ailleurs auprès des personnes chargées de l'audit interne et de toute autre personne qu'il estime utile d'interroger dans l'entité de leur éventuelle connaissance de fraudes avérées, suspectées ou simplement alléguées concernant l'entité. Il s'entretient également de ces questions avec l'organe d'administration ou de surveillance, notamment afin de corroborer les réponses apportées par la direction de l'entité. 15.L'importance accordée par l'organe d'administration ou de surveillance à la prévention de la fraude a une incidence sur le risque de fraude. Le commissaire aux comptes prend connaissance de la façon dont cet organe exerce sa surveillance sur les procédures mises en œuvre par la direction pour identifier les risques de fraude dans l'entité et pour répondre à ces risques. 16. Le commissaire aux comptes apprécie si les informations obtenues lors de ces entretiens indiquent
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la présence d'un ou de plusieurs facteurs de risque de fraude. Il peut relever des faits ou identifier des situations qui indiquent l'existence d'incitations ou de pressions à commettre des fraudes ou qui en offrent l'opportunité. 17. Lorsque le commissaire aux comptes met en œuvre des procédures analytiques lui permettant de prendre connaissance de l'entité, il apprécie si les corrélations inhabituelles ou inattendues indiquent des risques d'anomalies significatives résultant de fraudes. 18. En complément, le commissaire aux comptes apprécie si des informations obtenues à l'occasion d'autres procédures d'audit indiquent des risques d'anomalies significatives résultant de fraudes. 19. Lorsque le commissaire aux comptes a identifié, lors de sa prise de connaissance de l'entité et de son environnement, des risques d'anomalies significatives résultant de fraudes, il évalue, dans tous les cas, la conception et la mise en œuvre des contrôles de l'entité qui se rapportent à ces risques. Il existe une présomption de risque d'anomalies significatives résultant de fraudes dans la comptabilisation des produits. De ce fait, lorsque le commissaire aux comptes estime que ce risque n'existe pas, il en justifie dans son dossier.
Réponses à l'évaluation du risque d'anomalies significatives résultant de fraudes
20. En réponse à son évaluation du risque d'anomalies significatives résultant de fraudes, au niveau des comptes pris dans leur ensemble, le commissaire aux comptes adapte son approche générale de la mission. Pour cela, il : # reconsidère l'affectation des membres de l'équipe d'audit et le degré de supervision de leurs travaux ; # analyse les choix comptables de l'entité, en particulier ceux qui concernent des estimations qui reposent sur des hypothèses ou des opérations complexes, ainsi que leur mise en œuvre. Il apprécie si ces choix sont de nature à porter atteinte à l'image fidèle des comptes ; # introduit un élément d'imprévisibilité pour l'entité dans le choix de la nature, du calendrier et de l'étendue des procédures d'audit. 21. En réponse à son évaluation du risque d'anomalies significatives résultant de fraudes, au niveau des assertions, le commissaire aux comptes conçoit et met en œuvre des procédures d'audit complémentaires à celles réalisées pour cette évaluation. Il détermine leur nature, leur calendrier et leur étendue en fonction du risque auquel elles répondent. Par exemple, il peut décider de faire davantage appel à l'observation physique de certains actifs, de recourir à des techniques de contrôle assistées par ordinateur, ou encore de mettre en œuvre des procédures analytiques plus détaillées. 22. En complément des réponses à l'évaluation du risque d'anomalies significatives résultant de fraudes, au niveau des comptes pris dans leur ensemble et au niveau des assertions et afin de répondre au risque que la direction s'affranchisse de certains contrôles mis en place par l'entité, le commissaire aux comptes conçoit et met en œuvre des procédures d'audit qui consistent à : # vérifier le caractère approprié des écritures comptables et des écritures d'inventaire passées lors de la préparation des comptes ; # revoir si les estimations comptables ne sont pas biaisées. Pour cela, le commissaire aux comptes peut notamment revoir les jugements et les hypothèses de la direction reflétés dans les estimations comptables des années antérieures à la lumière des réalisations ultérieures ; # comprendre la justification économique d'opérations importantes qui lui semblent être en dehors des activités ordinaires de l'entité, ou qui lui apparaissent inhabituelles eu égard à sa connaissance de l'entité et de son environnement.
Réévaluation du risque d'anomalies significatives résultant de fraudes
23. En fonction des éléments collectés, le commissaire aux comptes apprécie, tout au long de sa mission, si son évaluation du risque d'anomalies significatives résultant de fraudes au niveau des assertions reste appropriée. 24. Lorsqu'il relève une anomalie significative, il apprécie si elle peut constituer l'indice d'une fraude. 25. Lorsqu'il met en œuvre, à la fin de l'audit, des procédures analytiques lui permettant d'apprécier la cohérence d'ensemble des comptes, il apprécie si les corrélations inhabituelles ou inattendues indiquent l'existence d'un risque, jusqu'alors non identifié, d'anomalies significatives résultant de fraudes. 26. Dans de telles situations, le commissaire aux comptes peut être amené à reconsidérer la nature, le calendrier ou l'étendue des procédures d'audit planifiées et à reconsidérer les informations obtenues de la direction.
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Déclarations de la direction
27. Le commissaire aux comptes demande à la direction des déclarations écrites par lesquelles : # elle déclare que des contrôles destinés à prévenir et à détecter les fraudes ont été conçus et mis en œuvre dans l'entité ; # elle confirme lui avoir communiqué son appréciation sur le risque que les comptes puissent comporter des anomalies significatives résultant de fraudes ; # elle déclare lui avoir signalé toutes les fraudes avérées dont elle a eu connaissance, ou suspectées, et impliquant la direction, des employés ayant un rôle clé dans le dispositif de contrôle interne ou d'autres personnes, dès lors que la fraude est susceptible d'entraîner des anomalies significatives dans les comptes ; # elle déclare lui avoir signalé toutes les allégations de fraudes ayant un impact sur les comptes de l'entité et portées à sa connaissance par des employés, anciens employés, analystes, régulateurs ou autres.
Communication avec la direction et avec l'organe d'administration ou de surveillance
28. Lorsque le commissaire aux comptes a identifié une fraude ayant entraîné des anomalies significatives dans les comptes ou a obtenu des informations sur la possibilité d'une telle fraude, il en informe dès que possible la direction ainsi que l'organe d'administration ou de surveillance. 29. Au cours de son audit, le commissaire aux comptes peut être amené à relever des fraudes n'ayant pas entraîné d'anomalies significatives. Il en informe : # la direction, au niveau de responsabilité approprié ; # l'organe d'administration ou de surveillance, lorsque ces fraudes impliquent la direction ou des employés ayant un rôle clé dans le dispositif de contrôle interne. 30. Le commissaire aux comptes communique dès que possible à l'organe d'administration ou de surveillance et à la direction, au niveau de responsabilité approprié, les déficiences majeures qu'il a relevées dans la conception ou la mise en œuvre des contrôles de l'entité destinés à prévenir et à détecter les fraudes. 31. Le commissaire aux comptes apprécie s'il existe d'autres points ayant trait à la fraude à discuter avec l'organe d'administration ou de surveillance. Il peut s'agir par exemple d'interrogation de sa part sur la nature, l'étendue et la fréquence de l'évaluation par la direction des contrôles mis en place pour prévenir et détecter la fraude ou encore sur le processus d'autorisation des opérations qui n'entrent pas dans le cadre habituel de l'activité de l'entité.
Révélation des faits délictueux et déclaration de soupçons
32. Lorsque le commissaire aux comptes conclut que les comptes comportent des anomalies significatives résultant de fraudes susceptibles de recevoir une qualification pénale, il révèle les faits au procureur de la République. Lorsqu'il soupçonne que des opérations portent sur des sommes qui pourraient provenir du trafic de stupéfiants, de la fraude aux intérêts financiers des Communautés européennes, de la corruption ou d'activités criminelles organisées ou qui pourraient participer au financement du terrorisme, le commissaire aux comptes procède, conformément aux dispositions des articles L. 562-2 et suivants du code monétaire et financier, à une déclaration au service mentionné à l'article L. 562-4 dudit code.
Remise en cause de la poursuite de la mission
33. Lorsque le commissaire aux comptes envisage de démissionner en raison de l'existence d'anomalies significatives résultant de fraudes avérées ou suspectées qui remettent en cause la poursuite de la mission, il respecte les règles édictées par le code de déontologie de la profession et s'assure notamment que sa démission a un motif légitime. 34. Si le commissaire aux comptes décide de démissionner : # il s'en entretient avec la direction, à un niveau de responsabilité approprié, et avec l'organe d'administration ou de surveillance, et leur en expose les motifs ; # il répond aux obligations édictées par le code de déontologie de la profession en terme de succession de mission.
Documentation des travaux
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35. Le commissaire aux comptes consigne dans son dossier de travail : # les décisions importantes prises au cours des échanges entre les membres de l'équipe d'audit sur le risque d'anomalies significatives résultant de fraudes dans les comptes ; # les risques d'anomalies significatives résultant de fraudes identifiés au niveau des comptes pris dans leur ensemble et au niveau des assertions ; # l'adaptation de son approche générale en réponse au risque d'anomalies significatives résultant de fraudes au niveau des comptes pris dans leur ensemble ainsi que la nature, le calendrier et l'étendue des procédures d'audit conçues et mises en œuvre en réponse à son évaluation du risque et le lien entre ces procédures et les risques évalués au niveau des assertions ; # les conclusions des procédures d'audit, et notamment de celles qui sont destinées à répondre au risque que la direction s'affranchisse des contrôles ; # le cas échéant, les raisons motivant son appréciation selon laquelle il n'existe pas de risque de fraude dans la comptabilisation des produits ; # les communications qu'il a faites en matière de fraude à la direction et à l'organe d'administration ou de surveillance ; # le cas échéant, la révélation au procureur de la République de faits délictueux.
Article A823-16
La norme d'exercice professionnel relative à la prise en compte du risque d'anomalies significatives dans les comptes résultant du non-respect de textes légaux et réglementaires, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE À LA PRISE EN COMPTE DU RISQUE D'ANOMALIES SIGNIFICATIVES DANS LES COMPTES RÉSULTANT DU NON-RESPECT DE TEXTES LÉGAUX ET RÉGLEMENTAIRES
Introduction
1. L'entité est assujettie à des textes légaux et réglementaires dont le non-respect peut conduire à des anomalies significatives dans les comptes. 2. La présente norme a pour objet de définir les procédures d'audit que le commissaire aux comptes met en œuvre : # afin d'identifier et d'évaluer le risque d'anomalies significatives dans les comptes résultant du non-respect éventuel de textes légaux et réglementaires ; # lorsqu'il identifie des cas de non-respect de textes légaux et réglementaires susceptibles de conduire à des anomalies dans les comptes. 3. Elle définit en outre les incidences sur l'opinion du commissaire aux comptes des cas de non-respect de textes légaux et réglementaires susceptibles de conduire à des anomalies significatives dans les comptes qu'il a identifiées.Identification et évaluation du risque d'anomalies significatives dans les comptes résultant du non-respect de textes légaux et réglementaires 4. Lors de la prise de connaissance de l'entité et de son environnement, le commissaire aux comptes prend connaissance du secteur d'activité de l'entité, de son environnement réglementaire, notamment du référentiel comptable applicable, et des moyens mis en œuvre par l'entité pour s'y conformer. 5. Pour ce faire, le commissaire aux comptes s'enquiert auprès de la direction : # des textes légaux et réglementaires qu'elle estime susceptibles d'avoir une incidence déterminante sur l'activité de l'entité ; # des procédures conçues et mises en œuvre dans l'entité visant à garantir le respect des textes légaux et réglementaires ; # des règles et procédures existantes pour identifier les litiges et pour évaluer et comptabiliser leurs incidences. 6. Lorsque le commissaire aux comptes identifie des textes légaux et réglementaires relatifs à l'établissement et à la présentation des comptes qui ont une incidence sur la détermination d'éléments significatifs des comptes : # il en acquiert une connaissance suffisante pour lui permettre de vérifier leur application ; # il collecte des éléments suffisants et appropriés justifiant de leur respect. 7. Lorsque le commissaire aux comptes identifie des textes légaux et réglementaires qui ne sont pas relatifs à l'établissement et à la présentation des comptes mais dont le non-respect peut avoir des conséquences financières pour l'entité, telles que des amendes ou des indemnités à verser, ou encore peut mettre en cause la continuité d'exploitation : # il s'enquiert
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auprès de la direction du respect de ces textes ; # il prend connaissance de la correspondance reçue des autorités administratives et de contrôle pour identifier les cas éventuels de non-respect des textes. 8. Tout au long de sa mission, le commissaire aux comptes est par ailleurs attentif au fait que les procédures d'audit mises en œuvre peuvent faire apparaître des cas de non-respect de textes légaux et réglementaires susceptibles de conduire à des anomalies significatives dans les comptes. 9. Lorsque, à l'issue de ces procédures, le commissaire aux comptes a un doute quant au respect, par l'entité, d'un texte légal ou réglementaire susceptible de conduire à des anomalies significatives dans les comptes, il recueille des informations complémentaires pour lever ce doute et s'en entretient avec la direction. 10. Le commissaire aux comptes demande au représentant légal, en tant que responsable des comptes, une déclaration écrite par laquelle il déclare avoir, au mieux de sa connaissance, appliqué les textes légaux et réglementaires.Procédures d'audit mises en œuvre par le commissaire aux comptes lorsqu'il identifie des cas de non-respect de textes légaux et réglementaires susceptibles de conduire à des anomalies significatives dans les comptes 11. Lorsqu'il identifie un cas de non-respect d'un texte légal ou réglementaire susceptible de conduire à des anomalies significatives dans les comptes, le commissaire aux comptes : # apprécie si ce non-respect conduit à une anomalie significative dans les comptes ; # en analyse l'incidence sur son évaluation du risque d'anomalies significatives dans les comptes, sur les procédures d'audit mises en œuvre et sur les éléments collectés, notamment sur la fiabilité des déclarations de la direction. 12. Le commissaire aux comptes communique dès que possible les cas de non-respect de textes légaux et réglementaires relevés à l'organe d'administration ou de surveillance de l'entité ou s'assure que cet organe en a été informé.
Incidences sur l'opinion
13. Lorsqu'il existe une incertitude sur l'application d'un texte légal ou réglementaire et que le commissaire aux comptes ne peut pas obtenir les éléments suffisants et appropriés pour la lever et en évaluer l'effet sur les comptes : # il apprécie la nécessité de formuler une observation afin d'attirer l'attention du lecteur des comptes sur l'information fournie dans l'annexe au titre de cette incertitude lorsque cette information est pertinente ; # il en évalue l'incidence sur son opinion, lorsque aucune information n'est fournie dans l'annexe sur cette incertitude ou lorsque l'information fournie n'est pas pertinente. 14. Lorsque le commissaire aux comptes conclut que le non-respect d'un texte légal ou réglementaire conduit à une anomalie significative dans les comptes et que celle-ci n'est pas corrigée, il en évalue l'incidence sur son opinion. Il en est de même lorsqu'il n'a pu mettre en œuvre les procédures d'audit pour apprécier si des cas de non-respect de textes légaux et réglementaires susceptibles de conduire à des anomalies significatives dans les comptes sont survenus.
Article A823-17
La norme d'exercice professionnel relative à l'appréciation des estimations comptables, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVEÀ L'APPRÉCIATION DES ESTIMATIONS COMPTABLESIntroduction
1. Certains éléments des comptes ne peuvent pas être mesurés de façon précise et ne peuvent qu'être estimés. Il peut résulter de ces estimations un risque que les comptes contiennent des anomalies significatives. 2. La présente norme a pour objet de définir les procédures d'audit spécifiques relatives : # à l'identification et à l'évaluation du risque d'anomalies significatives résultant d'estimations comptables, dans les comptes ; # à la conception des procédures d'audit en réponse à cette évaluation. 3. Cette norme s'applique aux estimations comptables, y compris les estimations en
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valeur actuelle et en juste valeur, retenues par la direction pour l'établissement des comptes ainsi qu'à l'information portant sur ces estimations fournie dans l'annexe des comptes.
Caractéristiques des estimations comptables
4. En fonction des dispositions du référentiel comptable applicable et des caractéristiques de l'actif ou du passif concerné, les estimations comptables peuvent être simples ou complexes et contenir une part plus ou moins importante d'incertitude et de jugement. 5. Certaines estimations comptables sont susceptibles de n'entraîner qu'un risque d'anomalies significatives faible. Il en est ainsi, par exemple, des estimations comptables relatives à des opérations courantes, qui sont régulièrement réalisées et actualisées, pour lesquelles les méthodes prescrites par le référentiel comptable sont simples et facilement applicables. 6. Les estimations comptables relatives à des opérations non courantes, en raison de leur importance et de leur nature, ou qui reposent sur des hypothèses fortes laissant une place importante au jugement de la direction peuvent entraîner un risque élevé d'anomalies significatives. Il en est ainsi des estimations comptables relatives aux coûts que certains litiges en cours sont susceptibles d'engendrer ou des estimations comptables d'instruments financiers pour lesquels il n'existe pas de marché. 7. Lorsque les estimations comptables laissent une part importante au jugement, les objectifs poursuivis par la direction, qui pourrait, volontairement ou non, orienter le choix des hypothèses sur lesquelles se fondent ces estimations, peuvent entraîner un risque d'anomalies significatives.Prise de connaissance du processus d'évaluation de l'entité et évaluation du risque d'anomalies significatives résultant d'estimations comptables 8. Afin d'identifier et d'évaluer le risque d'anomalies significatives résultant d'estimations comptables, le commissaire aux comptes met en œuvre des procédures d'audit qui consistent à prendre connaissance : # des règles et principes comptables prescrits par le référentiel comptable applicable en matière d'estimations comptables ; # du processus suivi par l'entité pour procéder aux estimations comptables, des changements éventuels dans les modes de calcul utilisés et des motivations de ces changements ; # du recours éventuel de l'entité aux travaux d'un expert ; # du dénouement ou de la réévaluation des estimations comptables de même nature effectuées les années précédentes. 9. Le commissaire aux comptes prend également connaissance des données utilisées pour le calcul des estimations comptables. 10. Parce que la direction est responsable du contrôle interne mis en place dans l'entité et de la préparation des comptes et qu'elle peut influencer les choix des modalités d'évaluation utilisées, le commissaire aux comptes s'enquiert auprès d'elle : # des procédures de contrôle interne mises en place pour s'assurer que le processus suivi pour procéder aux estimations comptables est conforme à ses directives ; # de ses intentions et de sa capacité à mener à bien ses plans d'actions pour ce qui concerne les éléments des comptes qui font l'objet d'estimations comptables significatives.
Procédures d'audit à mettre en œuvre en réponse au risqued'anomalies significatives relatif aux estimations comptables
11. En réponse à son évaluation du risque d'anomalies significatives dans les comptes, résultant d'estimations comptables, le commissaire aux comptes conçoit et met en œuvre les procédures d'audit lui permettant de collecter des éléments suffisants et appropriés pour conclure sur le caractère raisonnable des estimations comptables retenues par la direction, et, le cas échéant, de l'information fournie dans l'annexe sur ces estimations. 12. Le commissaire aux comptes apprécie si les estimations comptables sont conformes aux règles et principes comptables prescrits par le référentiel comptable applicable. 13. En fonction de l'estimation comptable qu'il veut contrôler, le commissaire aux comptes choisit de mettre en œuvre une ou plusieurs des procédures d'audit suivantes : # vérification du mode de calcul suivi pour procéder à l'estimation ; # utilisation de sa propre estimation pour la comparer avec l'estimation retenue par la direction ; # examen du dénouement postérieur à la clôture de l'exercice de l'estimation. 14. Lorsqu'il procède à la vérification du mode de calcul suivi, le commissaire aux comptes apprécie la pertinence des données de base utilisées et des hypothèses sur lesquelles se fonde l'estimation comptable et
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contrôle les calculs effectués par l'entité. En outre, il vérifie, le cas échéant, que l'estimation retenue a été validée par la direction, au niveau de responsabilité approprié, conformément au processus défini par l'entité. 15. Pour la mise en œuvre des procédures d'audit en réponse au risque d'anomalies significatives relatif aux estimations comptables, le commissaire aux comptes peut décider d'utiliser les travaux d'un expert.
Déclarations de la direction
16. Le commissaire aux comptes demande à la direction des déclarations écrites par lesquelles elle déclare que les principales hypothèses retenues sont raisonnables et qu'elles reflètent correctement ses intentions et sa capacité à mener à bien les actions envisagées.
Article A823-18
La norme d'exercice professionnel relative à la continuité d'exploitation, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVEÀ LA CONTINUITÉ D'EXPLOITATIONIntroduction
1. Pour l'établissement de ses comptes, l'entité est présumée poursuivre ses activités. Ceux-ci sont établis dans une perspective de continuité d'exploitation. 2. La présente norme a pour objet de définir les procédures d'audit que le commissaire aux comptes met en œuvre pour apprécier si l'établissement des comptes dans une perspective de continuité d'exploitation est approprié. 3. La présente norme définit en outre les conséquences que le commissaire aux comptes tire dans son rapport de la traduction dans les comptes des éléments susceptibles de mettre en cause la continuité d'exploitation qu'il aurait identifiés au cours de l'audit.
Appréciation de l'établissement des comptesdans une perspective de continuité d'exploitation
4. Lors de la prise de connaissance de l'entité et de l'évaluation du risque d'anomalies significatives dans les comptes, le commissaire aux comptes tient compte de l'existence d'éléments susceptibles de mettre en cause la continuité d'exploitation et s'enquiert auprès de la direction de sa connaissance de tels éléments. 5. Lorsque le commissaire aux comptes a identifié des éléments susceptibles de mettre en cause la continuité d'exploitation, il prend connaissance de l'évaluation faite par la direction de la capacité de l'entité à poursuivre son exploitation. 6. Si la direction a formalisé cette évaluation, le commissaire aux comptes en apprécie la pertinence. Pour ce faire : # il s'enquiert de la démarche suivie par la direction pour établir cette évaluation et apprécie les actions que l'entité envisage de mener ; # il apprécie les hypothèses sur lesquelles se fonde l'évaluation et la période sur laquelle elle porte. Lorsque le référentiel comptable ne définit pas cette période, la continuité d'exploitation est appréciée sur une période de douze mois à compter de la clôture de l'exercice. 7. Si la direction n'a pas formalisé cette évaluation, le commissaire aux comptes s'enquiert auprès d'elle des motifs qui l'ont conduite à établir les comptes dans une perspective de continuité d'exploitation. 8. Par ailleurs, tout au long de sa mission, le commissaire aux comptes reste vigilant sur tout élément susceptible de mettre en cause la continuité d'exploitation. Ces éléments peuvent notamment être : # de nature financière : capitaux propres négatifs, capacité d'autofinancement insuffisante, incidents de paiement, non-reconduction d'emprunts nécessaires à l'exploitation, litiges ou contentieux pouvant avoir des incidences financières importantes ; # de nature opérationnelle : départ d'employés de l'entité ayant un rôle clé et non remplacés, perte d'un marché important, conflits avec les salariés, changements technologiques ou réglementaires. 9. Lorsque le commissaire aux comptes a identifié de tels éléments : # il met en œuvre des procédures lui
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permettant de confirmer ou d'infirmer l'existence d'une incertitude sur la continuité d'exploitation ; # il apprécie si les plans d'actions de la direction sont susceptibles de mettre fin à cette incertitude ; # il demande à la direction une déclaration écrite par laquelle elle déclare que ses plans d'actions reflètent ses intentions.
Incidence sur le rapport
10. Lorsque, au vu des éléments collectés, le commissaire aux comptes estime que l'utilisation du principe de continuité d'exploitation pour l'établissement des comptes est appropriée mais qu'il existe une incertitude sur la continuité d'exploitation, il s'assure qu'une information pertinente est donnée dans l'annexe. 11. Si tel est le cas, le commissaire aux comptes formule une observation dans la première partie de son rapport pour attirer l'attention de l'utilisateur des comptes sur l'information fournie dans l'annexe au titre de cette incertitude. 12. Si l'annexe ne fournit pas d'information au titre de cette incertitude ou si le commissaire aux comptes estime que l'information donnée n'est pas pertinente, il en tire les conséquences sur l'expression de son opinion. 13. Lorsque le commissaire aux comptes estime que la continuité d'exploitation est définitivement compromise, il refuse de certifier les comptes si ceux-ci ne sont pas établis en valeur liquidative.
Procédure d'alerte
14. Lorsque, au cours de sa mission, le commissaire aux comptes relève des faits de nature à compromettre la continuité d'exploitation, il met en œuvre la procédure d'alerte lorsque les dispositions légales et réglementaires le prévoient.
Paragraphe 5 : Des contrôles particuliers
Article A823-19
La norme d'exercice professionnel relative aux événements postérieurs à la clôture de l'exercice, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE AUX ÉVÉNEMENTS POSTÉRIEURS À LA CLÔTURE DE L'EXERCICE
Introduction
1. Entre la date de clôture de l'exercice et la date d'approbation des comptes, le commissaire aux comptes peut identifier des événements qui doivent faire l'objet d'un traitement comptable ou d'une information à l'organe appelé à statuer sur les comptes. Ces événements sont qualifiés d'« événements postérieurs ». 2. Les référentiels comptables applicables définissent les événements postérieurs qui doivent faire l'objet d'un traitement comptable. Ce sont les événements survenus entre la date de clôture de l'exercice et la date d'arrêté des comptes : # qui ont un lien direct avec des situations qui existaient à la date de clôture de l'exercice et doivent donner lieu à un enregistrement comptable ; # ou qui doivent faire l'objet d'une information dans l'annexe. Au-delà de la date d'arrêté des comptes, aucun traitement comptable des événements postérieurs n'est prévu. 3. Les événements postérieurs qui doivent faire l'objet d'une information à l'organe appelé à statuer sur les comptes sont les événements importants que celui-ci doit connaître pour se prononcer sur les comptes en connaissance de cause. Lorsque de tels événements surviennent entre la date de clôture de l'exercice et la date d'arrêté des comptes, ils sont mentionnés dans le rapport de l'organe compétent à l'organe appelé à statuer sur les comptes. Lorsqu'ils surviennent au-delà de cette date, ils font l'objet d'une communication à l'organe appelé à statuer sur les comptes. 4. La présente
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
norme a pour objet de définir : # les procédures d'audit que le commissaire aux comptes met en œuvre pour identifier les événements postérieurs ; # les incidences des événements postérieurs identifiés par le commissaire aux comptes sur son rapport ou sur l'information des organes compétents. Ces incidences sont différentes selon la date à laquelle le commissaire aux comptes identifie les événements postérieurs et selon la date de survenance de ces événements.
Identification des événements postérieurs
5. Le commissaire aux comptes collecte les éléments suffisants et appropriés lui permettant d'identifier les événements postérieurs. 6. Pour ce faire, le commissaire aux comptes peut notamment : # prendre connaissance des procédures mises en place par la direction pour identifier ces événements ; # consulter les procès-verbaux ou les comptes rendus des réunions tenues par l'organe appelé à statuer sur les comptes, par l'organe d'administration ou de surveillance et par la direction après la date de clôture de l'exercice ; # prendre connaissance, le cas échéant, des dernières situations intermédiaires et des derniers documents prévisionnels établis par l'entité ; # s'enquérir auprès des personnes compétentes de l'entité de l'évolution des procès, contentieux et litiges depuis ses derniers contrôles ; # s'enquérir auprès de la direction de sa connaissance de la survenance d'événements postérieurs. 7. Ces procédures sont mises en œuvre jusqu'à une date aussi rapprochée que possible de la date de signature de son rapport par le commissaire aux comptes.Incidence des événements postérieurs identifiés par le commissaire aux comptes entre la date de clôture de l'exercice et la date d'arrêté des comptes 8. Lorsque le commissaire aux comptes identifie, entre la date de clôture de l'exercice et la date d'arrêté des comptes, un événement postérieur susceptible de conduire à une anomalie significative dans les comptes, il vérifie que cet événement a donné lieu à un traitement comptable approprié. Si tel n'est pas le cas, il en informe la direction et lui demande de modifier les comptes. 9. En cas de refus de la direction, le commissaire aux comptes en évalue l'incidence sur son opinion. 10. Lorsque l'événement n'a pas d'incidence sur les comptes mais nécessite qu'une information soit fournie dans le rapport de l'organe compétent de l'entité à l'organe appelé à statuer sur les comptes, le commissaire aux comptes vérifie que cette information a bien été donnée. Si tel n'est pas le cas, il en informe la direction et lui demande d'apporter les informations requises. 11. En cas de refus de la direction, le commissaire aux comptes formule une observation dans la troisième partie de son rapport.Incidence des événements postérieurs identifiés par le commissaire aux comptes entre la date d'arrêté des comptes et la date de signature de son rapport 12. Lorsque le commissaire aux comptes identifie, entre la date d'arrêté des comptes et la date de signature de son rapport, un événement postérieur survenu entre la date de clôture de l'exercice et la date d'arrêté des comptes, il vérifie que cet événement a donné lieu à un traitement comptable approprié ou à une information dans le rapport de l'organe compétent à l'organe appelé à statuer sur les comptes. 13. Si tel n'est pas le cas, et s'il n'est pas procédé volontairement par l'entité à un nouvel arrêté des comptes, ou si le rapport de l'organe compétent à l'organe appelé à statuer sur les comptes n'est pas complété, le commissaire aux comptes en évalue l'incidence sur son opinion ou formule une observation dans la troisième partie de son rapport. 14. Lorsque le commissaire aux comptes identifie, entre la date d'arrêté des comptes et la date de signature de son rapport, un événement postérieur survenu entre ces deux dates, il s'enquiert auprès de l'organe compétent de son intention de communiquer une information sur cet événement à l'organe appelé à statuer sur les comptes. Lorsqu'une telle communication n'est pas prévue, le commissaire aux comptes en fait mention dans la troisième partie de son rapport.Incidence des événements postérieurs connus par le commissaire aux comptes entre la date de signature de son rapport et la date d'approbation des comptes 15. Après la date de signature de son rapport, le commissaire aux comptes ne met plus en œuvre de procédures d'audit pour identifier les événements postérieurs. 16. Lorsque le commissaire aux comptes a connaissance, entre la date de signature de son rapport et la date d'approbation des comptes, d'un événement postérieur survenu entre la date de clôture de l'exercice et la date d'arrêté des comptes, il vérifie que cet événement a donné lieu à un traitement comptable approprié ou à une information dans le rapport de l'organe compétent à l'organe appelé à statuer sur les comptes. 17. Si tel n'est pas le cas, et s'il n'est pas
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
procédé volontairement par l'entité à un nouvel arrêté des comptes, ou si le rapport de l'organe compétent à l'organe appelé à statuer sur les comptes n'est pas complété, le commissaire aux comptes en évalue l'incidence sur son opinion ou sur la troisième partie de son rapport et établit un nouveau rapport dans lequel il est fait référence au rapport précédent. 18. Lorsque le commissaire aux comptes a connaissance, entre la date de signature de son rapport et la date d'approbation des comptes, d'un événement postérieur survenu après la date d'arrêté des comptes, il s'enquiert auprès de l'organe compétent de son intention de communiquer une information sur cet événement à l'organe appelé à statuer sur les comptes. Lorsqu'une telle communication n'est pas prévue, le commissaire aux comptes rédige une communication dont il est donné lecture lors de la réunion de l'organe appelé à statuer sur les comptes ou qui est portée à sa connaissance.
Article A823-20
La norme d'exercice professionnel relative aux changements comptables, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNELRELATIVE AUX CHANGEMENTS COMPTABLESIntroduction
1. La comparabilité des comptes est assurée par la permanence de la présentation des comptes et des méthodes d'évaluation, qui ne peuvent être modifiées que dans les conditions prévues par le référentiel comptable applicable. Ces modifications sont qualifiées de « changements de méthodes comptables ». 2. Par ailleurs, une entité peut, dans les conditions prévues par le référentiel comptable applicable, être conduite à corriger des erreurs dans les comptes ou décider de procéder à des changements d'estimation ou de modalités d'application ou à des changements d'options fiscales. 3. Par convention, dans la présente norme, sont qualifiés de « changements comptables » : # les changements de méthodes comptables ; # les corrections d'erreurs ; # les changements d'estimation ou de modalités d'application ; # les changements d'options fiscales. 4. La présente norme a pour objet de définir les procédures d'audit que le commissaire aux comptes met en œuvre lorsqu'il identifie un changement comptable et les conséquences qu'il en tire dans son rapport sur les comptes.
Procédures d'audit à mettre en œuvre par le commissaire aux comptes lorsqu'il identifie un changement comptable
5. Lorsque le commissaire aux comptes identifie un changement comptable, il apprécie sa justification. 6. Lorsque l'incidence sur les comptes du changement comptable est significative, le commissaire aux comptes vérifie : # que la traduction comptable de ce changement, y compris les informations fournies dans l'annexe, est appropriée ; # qu'une information appropriée est présentée pour rétablir la comparabilité des comptes, lorsque le référentiel comptable applicable le prévoit. 7. Lorsque le changement comptable correspond à un changement de méthodes comptables dans les comptes annuels, le commissaire aux comptes vérifie que ce changement est signalé dans le rapport de l'organe compétent de l'entité à l'organe appelé à statuer sur les comptes.
Incidence sur le rapport
8. Lorsque le commissaire aux comptes estime que le changement comptable n'est pas justifié, ou que sa traduction comptable ou l'information fournie dans l'annexe ne sont pas appropriées, il en tire les conséquences sur l'expression de son opinion. 9. Lorsque le changement comptable correspond à un changement de méthodes comptables dans les comptes et que le commissaire aux comptes estime que sa traduction comptable, y compris les informations fournies en annexe, est appropriée,
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
il formule une observation dans son rapport sur les comptes pour attirer l'attention de l'utilisateur des comptes sur l'information fournie dans l'annexe. 10. Lorsque le changement comptable correspond à un changement de méthodes comptables dans les comptes annuels et que ce changement n'est pas signalé dans le rapport de l'organe compétent de l'entité à l'organe appelé à statuer sur les comptes ou que le commissaire aux comptes estime que l'information fournie n'est pas appropriée, il formule une observation dans la troisième partie de son rapport sur les comptes annuels.
Article A823-21
La norme d'exercice professionnel relative au contrôle du bilan d'ouverture du premier exercice certifié par le commissaire aux comptes, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE AU CONTRÔLE DU BILAN D'OUVERTURE DU PREMIER EXERCICE CERTIFIÉ PAR LE COMMISSAIRE AUX COMPTES
Introduction
1. Lorsque le commissaire aux comptes intervient au titre de la première année de son mandat, il vérifie que le bilan de clôture de l'exercice précédent repris pour l'ouverture du premier exercice dont il certifie les comptes, qualifié de bilan d'ouverture, ne contient pas d'anomalies significatives susceptibles d'avoir une incidence sur les comptes de l'exercice. 2. La présente norme a pour objet de définir les procédures d'audit que le commissaire aux comptes qui intervient au titre de la première année de son mandat met en œuvre, dans le cadre de sa mission, pour contrôler le bilan d'ouverture. 3. Elle définit en outre les conséquences que le commissaire aux comptes tire sur son rapport des conclusions auxquelles il aboutit à l'issue de la mise en œuvre de ces procédures d'audit.
Procédures d'audit à mettre en œuvrepar le commissaire aux comptes
4. Le commissaire aux comptes collecte les éléments suffisants et appropriés lui permettant de vérifier que : # les soldes de comptes du bilan d'ouverture ne contiennent pas d'anomalies significatives susceptibles d'avoir une incidence sur les comptes de l'exercice ; # la présentation des comptes ainsi que les méthodes d'évaluation retenues n'ont pas été modifiées d'un exercice à l'autre. Lorsque le commissaire aux comptes identifie un changement comptable intervenu au cours de l'exercice qui nécessite de présenter une information comparative pour rétablir la comparabilité des comptes, il applique les principes définis dans la norme traitant des changements comptables. 5. Pour collecter ces éléments, le commissaire aux comptes tient compte : # de son évaluation du risque d'anomalies significatives dans les comptes ; # du fait que les comptes de l'exercice précédent ont fait l'objet ou non d'une certification par un commissaire aux comptes et, dans l'affirmative, de l'opinion exprimée par le prédécesseur. 6. Lorsque les comptes de l'exercice précédent ont fait l'objet d'une certification par un commissaire aux comptes, le commissaire aux comptes prend connaissance du dossier de travail de son prédécesseur. 7. La certification sans réserve des comptes de l'exercice précédent constitue une présomption de régularité et sincérité du bilan d'ouverture. 8. Lorsque le prédécesseur a assorti la certification des comptes de l'exercice précédent d'une observation ou d'une réserve ou a refusé de les certifier, le commissaire aux comptes examine les points à l'origine de cette observation, réserve ou refus et reste attentif à leur évolution. 9. Si les comptes de l'exercice précédent n'ont pas été certifiés ou si le commissaire aux comptes n'a pas obtenu des travaux de son prédécesseur les éléments suffisants et appropriés estimés nécessaires, il met en œuvre les procédures qui suivent. 10. Les procédures d'audit mises en œuvre par le commissaire aux comptes pour les besoins de la certification des comptes de l'exercice
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peuvent lui permettre d'obtenir les éléments suffisants et appropriés pour conclure sur certains soldes de comptes du bilan d'ouverture. 11. Lorsque ces procédures ne permettent pas au commissaire aux comptes d'obtenir les éléments suffisants et appropriés estimés nécessaires, il met en œuvre des procédures complémentaires. Il peut ainsi examiner les contrats et autres documents d'origine interne ou externe qui lui permettent de conclure quant aux assertions qu'il souhaite vérifier. Ces procédures sont généralement pertinentes pour vérifier les soldes des comptes des actifs immobilisés et de certains passifs tels que les emprunts. De même, pour conclure quant à l'existence physique et à l'évaluation des stocks en début d'exercice, le commissaire aux comptes peut mettre en œuvre les procédures complémentaires suivantes : # observation d'une prise d'inventaire physique en cours d'exercice et rapprochement des éléments recueillis avec les soldes à l'ouverture ; # examen de la marge brute et des procédures de séparation des exercices.
Conclusions et rapport
12. Lorsqu'il ne peut pas mettre en œuvre a posteriori les procédures décrites dans les paragraphes précédents sur les soldes de comptes du bilan d'ouverture, le commissaire aux comptes en apprécie l'incidence sur l'expression de son opinion. 13. Si, à l'issue de ses travaux, le commissaire aux comptes conclut que les comptes pourraient être affectés par une anomalie significative issue des exercices précédents, il en informe la direction et, le cas échéant, son prédécesseur. 14. Si l'anomalie significative est confirmée et si la direction ne procède pas au traitement comptable approprié, le commissaire aux comptes en apprécie l'incidence sur l'expression de son opinion. 15. Lorsque les comptes de l'exercice précédent n'ont pas fait l'objet d'une certification par un commissaire aux comptes, le commissaire aux comptes le mentionne dans son rapport, à la fin de l'introduction.
Article A823-22
La norme d'exercice professionnel relative aux informations relatives aux exercices précédents, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE AUX INFORMATIONS RELATIVES AUX EXERCICES PRÉCÉDENTS
Introduction
1.L'indication d'informations relatives aux exercices précédents dans les comptes de l'exercice écoulé est prévue par les textes légaux et réglementaires. 2. La présente norme a pour objet de définir les procédures d'audit que le commissaire aux comptes met en œuvre pour vérifier que les textes légaux et réglementaires applicables aux informations relatives aux exercices précédents ont été correctement appliqués. 3. Elle définit par ailleurs les incidences sur l'opinion du commissaire aux comptes des anomalies significatives qu'il a relevées et qui affectent la comparabilité des informations relatives aux exercices précédents avec les comptes de l'exercice écoulé.
Procédures mises en œuvre par le commissaire aux comptes au titre des informations relatives aux exercices précédents
4. En l'absence de changement comptable susceptible de conduire à un ajustement ou un retraitement de l'information relative aux exercices précédents, le commissaire aux comptes vérifie que, en application du référentiel comptable applicable : # les montants figurant dans les comptes des exercices précédents, y compris le cas échéant dans l'annexe, ont été correctement reportés ; # les informations narratives relatives aux exercices précédents, lorsque cela est nécessaire à la bonne compréhension des comptes de l'exercice écoulé, ont été incluses. 5. Lorsque les comptes de
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
l'exercice sont affectés par un changement comptable susceptible de conduire à un ajustement ou un retraitement de l'information relative aux exercices précédents, le commissaire aux comptes fait application des principes définis au paragraphe 4 de la présente norme et des principes définis dans la norme d'exercice professionnel relative aux changements comptables. 6. Lorsque les comptes de l'exercice précédent n'ont pas fait l'objet d'un audit par le commissaire aux comptes qui intervient au titre de la première année de son mandat, il applique également les principes définis dans la norme d'exercice professionnel relative au contrôle du bilan d'ouverture du premier exercice certifié par le commissaire aux comptes. 7. Lorsque le commissaire aux comptes a relevé des anomalies dans l'élaboration ou la présentation des informations relatives aux exercices précédents, il en informe la direction et lui demande de modifier ces informations.
Incidence sur l'opinion
8. Conformément aux dispositions de l'article L. 823-9, l'opinion exprimée par le commissaire aux comptes ne porte que sur les comptes de l'exercice écoulé. 9. Lorsque le commissaire aux comptes a relevé des anomalies significatives dans l'élaboration ou la présentation des informations relatives aux exercices précédents qui affectent leur comparabilité avec les comptes de l'exercice écoulé et que la direction refuse de modifier ces informations, il en évalue l'incidence sur son opinion.
Paragraphe 6 : De l'utilisation des travaux d'autres intervenants
Article A823-23
La norme d'exercice professionnel relative à la prise de connaissance et à l'utilisation des travaux de l'audit interne, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE À LA PRISE DE CONNAISSANCE ET À L'UTILISATION DES TRAVAUX DE L'AUDIT INTERNE
Introduction
1. Lorsque l'entité dispose d'un audit interne, le commissaire aux comptes prend connaissance du fonctionnement et des objectifs qui lui sont assignés. Il peut utiliser les travaux réalisés par l'audit interne en tant qu'éléments collectés au titre des assertions qu'il souhaite vérifier. 2. La présente norme a pour objet de définir les principes relatifs à : # la prise de connaissance par le commissaire aux comptes de l'audit interne ; # l'utilisation par le commissaire aux comptes des travaux réalisés par l'audit interne.
Prise de connaissance de l'audit interne
3. Lorsque le commissaire aux comptes prend connaissance de l'entité pour constituer un cadre de référence dans lequel il planifie son audit et évalue le risque d'anomalies significatives dans les comptes, il s'enquiert : # de la place qu'occupe l'audit interne dans l'organisation de l'entité. Le commissaire aux comptes examine les règles et les procédures mises en place dans l'entité pour assurer l'objectivité des auditeurs internes dans la réalisation de leurs travaux et l'émission de leurs conclusions ; # de la nature et de l'étendue des travaux confiés à l'audit interne.
Utilisation des travaux réalisés par l'audit interne
4. A l'issue de cette prise de connaissance, lorsque le commissaire aux comptes envisage d'utiliser les travaux réalisés par l'audit interne, il apprécie notamment : # les qualifications professionnelles
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des auditeurs internes et leur expérience acquise dans ces fonctions ; # l'organisation de l'audit interne en termes de planification, mise en œuvre et supervision des travaux ; # la documentation existante, y compris les programmes de travail et autres procédures écrites ; # si la direction prend en compte les recommandations formulées par l'audit interne et si elle met en œuvre des actions pour répondre à ces recommandations. 5. Lorsque le commissaire aux comptes décide d'utiliser certains travaux de l'audit interne, il apprécie notamment si : # la nature et l'étendue de ces travaux répondent aux besoins de son audit ; # ces travaux ont été réalisés par des personnes disposant d'une qualification professionnelle et d'une expérience suffisantes et ont été revus et documentés ; # une solution appropriée a été apportée aux problématiques mises en évidence par les travaux de l'audit interne ; # les rapports ou autres documents de synthèse établis par l'audit interne sont cohérents avec les résultats des travaux réalisés par ce dernier. 6. Le commissaire aux comptes apprécie, par ailleurs, si ces travaux constituent des éléments suffisants et appropriés pour lui permettre d'aboutir à des conclusions à partir desquelles il fonde son opinion sur les comptes. 7. Si tel n'est pas le cas, il en titre les conséquences sur ses propres travaux.
Article A823-24
La norme d'exercice professionnel relative à l'intervention d'un expert, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE À L'INTERVENTION D'UN EXPERT Introduction
1. En application des dispositions prévues à l'article L. 823-13 du code de commerce et à l'article 7 du code de déontologie de la profession, le commissaire aux comptes peut faire appel à un expert de son choix lorsque certains contrôles indispensables à l'exercice de sa mission nécessitent une expertise dans des domaines autres que ceux de l'audit et de la comptabilité. 2. Le commissaire aux comptes peut également utiliser les travaux d'un expert choisi par l'entité. 3. La présente norme a pour objet : # de définir les situations dans lesquelles le commissaire aux comptes peut estimer nécessaire de faire appel à un expert ; # de définir les principes que le commissaire aux comptes respecte lorsqu'il décide de faire appel à un expert de son choix ; # de définir les principes que le commissaire aux comptes respecte lorsqu'il décide d'utiliser les travaux d'un expert choisi par l'entité.
Définition
4. Expert : personne physique ou morale possédant une qualification et une expérience dans un domaine particulier autre que la comptabilité et l'audit.
Appréciation de la nécessité de faire appel à un expert
5. Lors de la prise de connaissance de l'entité et de son environnement et la mise en œuvre de procédures d'audit complémentaires en réponse aux risques identifiés, le commissaire aux comptes peut estimer nécessaire de collecter des éléments à partir des travaux réalisés par un expert. Tel peut être le cas, notamment, pour : # l'appréciation de la valorisation de certains types d'actif, tels que des terrains et des constructions, des usines et des outils de production, des œuvres d'art ou des pierres précieuses ; # la vérification de quantités ou de l'état physique de certains actifs, tels que des minerais en stock et des réserves pétrolières ; # la vérification de montants relevant de méthodes ou de techniques spécifiques, tels que l'évaluation actuarielle des engagements de retraite ; # l'appréciation de l'état d'avancement des travaux réalisés et restant à réaliser sur des contrats en cours ; # l'appréciation d'une situation fiscale ou juridique complexe. 6. Lorsque le commissaire aux
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
comptes envisage d'utiliser les travaux d'un expert dans le cadre de sa mission d'audit, il tient compte notamment : # du risque d'anomalies significatives dû à la nature, à la complexité et au caractère significatif de l'élément concerné ; # de la quantité et de la qualité des autres éléments pouvant être collectés.
Principes applicables lorsque l'expert est choisi par le commissaire aux comptes
7. Le commissaire aux comptes choisit un expert indépendant de l'entité. 8. Il apprécie, par ailleurs, la compétence professionnelle de celui-ci dans le domaine particulier concerné. Le commissaire aux comptes tient compte notamment : # des qualifications professionnelles, des diplômes ou de l'inscription de l'expert sur la liste d'experts agréés auprès d'un organisme professionnel ou d'une juridiction ; # de l'expérience et de la réputation de l'expert dans le domaine particulier concerné.
Principes applicables lorsque l'expert est choisi par l'entité
9. Lorsque l'expert est choisi par l'entité, le commissaire aux comptes : # s'assure que l'expert est indépendant de l'entité ; # le cas échéant, prend connaissance des instructions que l'entité a données par écrit à l'expert pour apprécier si la nature et l'étendue des travaux à réaliser répondent aux besoins de son audit ; # apprécie la compétence de l'expert en respectant les mêmes principes que ceux définis au paragraphe 08. 10. Si le commissaire aux comptes estime que l'expert n'est pas indépendant de l'entité, il en fait part à la direction et demande qu'il soit fait appel à un autre expert. 11. Si la compétence de l'expert ne paraît pas satisfaisante au commissaire aux comptes, il en fait part à la direction et apprécie si des éléments suffisants et appropriés peuvent être obtenus des travaux de l'expert. Le commissaire aux comptes peut ainsi être conduit à mettre en œuvre des procédures d'audit supplémentaires ou à recourir à un autre expert.
Evaluation des travaux de l'expert
12. Le commissaire aux comptes collecte les éléments suffisants et appropriés qui établissent que : # la nature et l'étendue des travaux de l'expert sont conformes aux instructions qui lui ont été données ; # les travaux réalisés par l'expert lui permettent de conclure sur le respect des assertions qu'il souhaite vérifier. Pour ce faire, le commissaire aux comptes apprécie : # le caractère approprié des sources d'informations utilisées par l'expert ; # le caractère raisonnable des hypothèses et des méthodes utilisées par l'expert et leur cohérence avec celles retenues, le cas échéant, au cours des périodes précédentes ; # la cohérence des résultats des travaux de l'expert avec sa connaissance générale de l'entité et les résultats de ses autres procédures d'audit. Le commissaire aux comptes vérifie par ailleurs que les conclusions de l'expert sont correctement reflétées dans les comptes ou qu'elles corroborent les assertions qui sous-tendent l'établissement des comptes. 13. Si les résultats des travaux de l'expert ne fournissent pas au commissaire aux comptes les éléments suffisants et appropriés ou s'ils ne sont pas cohérents avec les autres éléments collectés : # il s'en entretient avec la direction au niveau de responsabilité approprié et avec l'expert ; # il détermine, le cas échéant, les procédures d'audit supplémentaires à mettre en œuvre. Il peut, à ce titre, décider de recourir à un autre expert.
Référence aux travaux de l'expert dans le rapport du commissaire aux comptes
14. Les travaux de l'expert sont utilisés uniquement en tant qu'éléments collectés à l'appui des conclusions du commissaire aux comptes sur sa propre mission. 15. Le commissaire aux comptes peut estimer nécessaire de faire référence aux travaux et aux conclusions de l'expert : # lorsqu'il justifie de ses appréciations ; # lorsqu'il émet une réserve ou un refus de certifier, pour en préciser les motifs.
Documentation des travaux de l'expert
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16. Le commissaire aux comptes documente dans son dossier les travaux réalisés par l'expert qu'il utilise dans le cadre de sa mission.
Article A823-25
La norme d'exercice professionnel relative à l'utilisation des travaux d'un expert-comptable intervenant dans l'entité, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE À L'UTILISATION DES TRAVAUX D'UN EXPERT-COMPTABLE INTERVENANT DANS L'ENTITÉ
Introduction
1. En application des dispositions de l'article L. 823-14, le commissaire aux comptes peut recueillir toutes informations utiles à l'exercice de sa mission auprès des tiers qui ont accompli des opérations pour le compte de la personne ou de l'entité.A ce titre, il peut utiliser des travaux réalisés par un expert-comptable à la demande de l'entité. Leur utilisation évite alors au commissaire aux comptes de réaliser, le cas échéant, les mêmes travaux. 2. La présente norme a pour objet de définir les principes relatifs à l'utilisation des travaux d'un expert-comptable par le commissaire aux comptes.
Prise de connaissance de l'entité et de son environnement et planification
3. Lors de la prise de connaissance de l'entité et de son environnement, le commissaire aux comptes : # analyse la nature et l'étendue de la mission que l'entité a confiée à l'expert-comptable ; # apprécie dans quelle mesure il pourra s'appuyer sur les travaux effectués par ce dernier pour aboutir à des conclusions à partir desquelles il fonde son opinion sur les comptes. 4. Pour ce faire, le commissaire aux comptes prend contact avec l'expert-comptable pour s'informer du contenu de la mission qui lui a été confiée et, s'il l'estime nécessaire, se fait communiquer les travaux réalisés.
Evaluation des travaux de l'expert-comptable
5. Lorsqu'il décide d'utiliser les travaux de l'expert-comptable, le commissaire aux comptes apprécie s'ils constituent des éléments suffisants et appropriés pour contribuer à la formation de son opinion sur les comptes. 6. En fonction de cette appréciation, le commissaire aux comptes détermine les procédures d'audit supplémentaires dont la mise en œuvre lui paraît nécessaire pour obtenir les éléments suffisants et appropriés recherchés.
Référence aux travaux de l'expert-comptable dans le rapport
7.L'expression de l'opinion émise par le commissaire aux comptes ne fait pas référence aux travaux de l'expert-comptable. Ces travaux sont utilisés uniquement en tant qu'éléments collectés à l'appui des conclusions du commissaire aux comptes sur sa propre mission.
Documentation
8. Le commissaire aux comptes documente dans son dossier les travaux réalisés par l'expert-comptable qu'il utilise dans le cadre de sa mission.
Paragraphe 7 : De l'élaboration des rapports de certification
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Article A823-26
La norme d'exercice professionnel relative au rapport du commissaire aux comptes sur les comptes annuels et consolidés, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE AU RAPPORT DU COMMISSAIRE AUX COMPTES SUR LES COMPTES ANNUELS ET CONSOLIDÉS
Introduction
1. Lorsqu'il certifie les comptes en application de l'article L. 823-9, le commissaire aux comptes établit un rapport à l'organe appelé à statuer sur les comptes dans lequel, en justifiant de ses appréciations, il formule son opinion conformément aux dispositions de l'article R. 823-7. 2. Le commissaire aux comptes rend compte, dans le même rapport, des vérifications et informations spécifiques prévues par les textes légaux et réglementaires. 3. Le rapport sur les comptes consolidés est distinct du rapport sur les comptes annuels. 4. La présente norme a pour objet de définir les principes relatifs à l'établissement de ces rapports par le commissaire aux comptes.
Contenu des rapports
5. Les rapports comportent trois parties distinctes relatives : # à la certification des comptes ; # à la justification des appréciations ; # aux vérifications et informations spécifiques prévues par les textes légaux et réglementaires.
Certification des comptes
6. En application des dispositions des articles L. 823-9 et R. 823-7, le commissaire aux comptes déclare : # soit certifier que les comptes annuels sont réguliers et sincères et qu'ils donnent une image fidèle du résultat des opérations de l'exercice écoulé ainsi que de la situation financière et du patrimoine de la personne ou de l'entité à la fin de cet exercice ou, pour les comptes consolidés, du patrimoine, de la situation financière ainsi que du résultat de l'ensemble constitué par les personnes et entités comprises dans la consolidation ; # soit assortir la certification de réserves ; # soit refuser la certification des comptes. Dans ces deux derniers cas, il précise les motifs de la réserve ou du refus. 7. Conformément à la faculté qui lui est donnée par l'article R. 823-7 précité, le commissaire aux comptes formule, s'il y a lieu, toutes observations utiles lorsqu'il certifie les comptes sans réserve ou lorsqu'il assortit la certification de réserves. 8. En formulant une observation, le commissaire aux comptes attire l'attention du lecteur des comptes sur une information fournie dans l'annexe. Il ne peut pas dispenser d'informations dont la diffusion relève de la responsabilité des dirigeants. 9. Les observations sont formulées dans un paragraphe distinct après l'expression de l'opinion. 10. Le commissaire aux comptes formule systématiquement une observation : # en cas d'incertitude sur la continuité de l'exploitation ; # en cas de changement de méthodes comptables survenu dans les comptes au cours de l'exercice.
Certification sans réserve
11. Le commissaire aux comptes formule une certification sans réserve lorsque l'audit des comptes qu'il a mis en œuvre lui a permis d'obtenir l'assurance élevée, mais non absolue du fait des limites de l'audit, et qualifiée par convention d'assurance raisonnable que les comptes, pris dans leur ensemble, ne comportent pas d'anomalies significatives.
Certification avec réserve
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12. Le commissaire aux comptes formule une certification avec réserve pour désaccord : # lorsqu'il a identifié au cours de son audit des comptes des anomalies significatives et que celles-ci n'ont pas été corrigées ; # que les incidences sur les comptes des anomalies significatives sont clairement circonscrites ; # et que la formulation de la réserve est suffisante pour permettre à l'utilisateur des comptes de fonder son jugement en connaissance de cause. 13. Lorsque le commissaire aux comptes précise les motifs de la réserve pour désaccord, il quantifie au mieux les incidences sur les comptes des anomalies significatives identifiées et non corrigées ou bien indique les raisons pour lesquelles il ne peut les quantifier. 14. Le commissaire aux comptes formule une certification avec réserve pour limitation : # lorsqu'il n'a pas pu mettre en œuvre toutes les procédures d'audit nécessaires pour fonder son opinion sur les comptes ; # que les incidences sur les comptes des limitations à ses travaux sont clairement circonscrites ; # et que la formulation de la réserve est suffisante pour permettre à l'utilisateur des comptes de fonder son jugement en connaissance de cause.
Refus de certifier
15. Le commissaire aux comptes formule un refus de certifier pour désaccord : # lorsqu'il a détecté au cours de son audit des comptes des anomalies significatives et que celles-ci n'ont pas été corrigées, et que : # soit les incidences sur les comptes des anomalies significatives ne peuvent être clairement circonscrites ; # soit la formulation d'une réserve n'est pas suffisante pour permettre à l'utilisateur des comptes de fonder son jugement en connaissance de cause. 16. Lorsque le commissaire aux comptes précise les motifs du refus de certifier pour désaccord, il quantifie, lorsque cela est possible, les incidences sur les comptes des anomalies significatives identifiées et non corrigées. 17. Le commissaire aux comptes formule un refus de certifier pour limitation : # lorsqu'il n'a pas pu mettre en œuvre toutes les procédures d'audit nécessaires pour fonder son opinion sur les comptes, et que : # soit les incidences sur les comptes des limitations à ses travaux ne peuvent être clairement circonscrites ; # soit la formulation d'une réserve n'est pas suffisante pour permettre à l'utilisateur des comptes de fonder son jugement en connaissance de cause. 18. Le commissaire aux comptes formule un refus de certifier pour incertitudes lorsqu'il est dans l'impossibilité d'exprimer une opinion en raison de multiples incertitudes dont les incidences sur les comptes ne peuvent être clairement circonscrites.
Justification des appréciations
19. En application des dispositions de l'article L. 823-9, le commissaire aux comptes justifie de ses appréciations pour toutes les personnes ou entités dont les comptes annuels ou consolidés font l'objet d'une certification. Il met en œuvre à cet effet les principes définis dans la norme d'exercice professionnel relative à la justification des appréciations. 20. La justification des appréciations figure dans la deuxième partie du rapport, après celle relative à la certification.
Vérifications et informations spécifiques
21. Dans le rapport sur les comptes annuels, la troisième partie comporte les éléments suivants : a) Une introduction par laquelle le commissaire aux comptes indique qu'il a effectué les vérifications spécifiques prévues par les textes légaux et réglementaires ; b) Les conclusions exprimées sous forme d'observation, ou d'absence d'observation, sur : # la sincérité et la concordance avec les comptes annuels des informations données dans le rapport de l'organe compétent à l'organe appelé à statuer sur les comptes et, le cas échéant, dans les autres documents adressés à l'organe appelé à statuer sur les comptes sur la situation financière et les comptes annuels ; # le cas échéant, la sincérité des informations données dans le rapport de gestion en application des trois premiers alinéas de l'article L. 225-102-1 ; c) Le cas échéant, les informations que les textes légaux et réglementaires font obligation au commissaire aux comptes de mentionner dans son rapport, telles que les prises de participation et les prises de contrôle intervenues au cours de l'exercice, les aliénations diverses intervenues en application de la législation sur les participations réciproques et
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l'identité des personnes détenant le capital et les droits de vote. 22. Dans le rapport sur les comptes consolidés, cette troisième partie concerne uniquement la vérification spécifique portant sur la sincérité et la concordance avec les comptes consolidés des informations données dans le rapport sur la gestion du groupe. Elle comporte deux paragraphes distincts : a) Une introduction par laquelle le commissaire aux comptes indique qu'il a effectué la vérification spécifique prévue par les textes légaux et réglementaires ; b) La conclusion issue de cette vérification exprimée sous forme d'observation, ou d'absence d'observation, sur la sincérité et la concordance avec les comptes consolidés des informations données dans le rapport sur la gestion du groupe.
Forme du rapport
23. Les rapports établis par le commissaire aux comptes mentionnent les informations prévues à l'article R. 822-93. Le rapport comporte : a) Un titre qui indique qu'il s'agit d'un rapport de commissaire aux comptes ; b) L'indication de l'organe auquel le rapport est destiné ; c) Une introduction qui : # précise : # l'origine de sa nomination ; # l'exercice sur lequel porte le rapport ; # la nature des comptes, annuels ou consolidés, qui font l'objet du rapport et sont joints à ce dernier ; # l'entité dont les comptes sont certifiés ; # présente les trois parties du rapport ; et # rappelle les rôles respectifs de l'organe compétent de l'entité pour arrêter les comptes et du commissaire aux comptes ; d) Trois parties distinctes nettement individualisées relatives : # à la certification des comptes ; # à la justification des appréciations ; # aux vérifications et informations spécifiques prévues par les textes légaux et réglementaires ; e) La date du rapport ; f) Le cas échéant, la signature sociale de la société de commissaire aux comptes ; g) La signature du commissaire aux comptes exerçant à titre individuel ou, le cas échéant, de celui ou de ceux des commissaires aux comptes associés, actionnaires ou dirigeants de la société de commissaires aux comptes qui ont participé à l'établissement du rapport.
Article A823-27
La norme d'exercice professionnel relative à la justification des appréciations, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE À LA JUSTIFICATION DES APPRÉCIATIONS Introduction
1. En application des dispositions de l'article L. 823-9, le commissaire aux comptes justifie de ses appréciations pour toutes les personnes ou entités dont les comptes annuels ou consolidés font l'objet d'une certification établie conformément à ce même article. 2. Cette obligation s'applique aux rapports établis par le commissaire aux comptes sur les comptes annuels et les comptes consolidés, et ne s'applique pas aux autres rapports susceptibles d'être émis par le commissaire aux comptes dans le cadre de sa mission. 3. La présente norme a pour objet de définir les principes et de préciser leurs modalités d'application concernant l'obligation légale faite au commissaire aux comptes de « justifier de ses appréciations » dans son rapport général sur les comptes annuels et dans son rapport sur les comptes consolidés.
Concept de justification des appréciations
4. La « justification des appréciations » effectuée par le commissaire aux comptes constitue une explicitation de celles-ci et, ce faisant, une motivation de l'opinion émise. Elle doit permettre au destinataire du rapport de mieux comprendre les raisons pour lesquelles le commissaire aux comptes a émis son opinion sur les comptes. 5.L'explicitation de certaines appréciations ne saurait se substituer à la nécessité de formuler une opinion avec réserve ou un refus de certifier ou d'insérer
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un paragraphe d'observation dans le rapport. 6. La justification de ses appréciations ne saurait conduire le commissaire aux comptes à être un dispensateur d'informations dont la diffusion relève de la responsabilité des dirigeants.
Appréciations de nature à faire l'objet d'une justification
7. Le commissaire aux comptes justifie de ses appréciations en toutes circonstances. Sur la base de son jugement professionnel et au vu des diligences effectuées tout au long de sa mission, il retient dans son rapport les appréciations qui lui sont apparues importantes. 8. Sans préjudice d'autres appréciations que le commissaire aux comptes jugerait nécessaire de justifier pour répondre à l'obligation posée par la loi, les appréciations de nature à faire l'objet d'une justification se rapportent généralement à des éléments déterminants pour la compréhension des comptes. Entrent dans ce cadre, notamment, les appréciations portant sur : # les options retenues dans le choix des méthodes comptables ou dans leurs modalités de mise en œuvre lorsqu'elles ont des incidences majeures sur le résultat, la situation financière ou la présentation d'ensemble des comptes de l'entité ; # les estimations comptables importantes, notamment celles manquant de données objectives et impliquant un jugement professionnel dans leur appréciation ; # la présentation d'ensemble des comptes annuels et consolidés, qu'il s'agisse du contenu de l'annexe ou de la présentation des états de synthèse. Le commissaire aux comptes peut également estimer nécessaire de justifier d'appréciations portant sur les procédures de contrôle interne concourant à l'élaboration des comptes, qu'il est conduit à apprécier dans le cadre de la mise en œuvre de sa démarche d'audit.
Formulation de la justification des appréciations
9. Le commissaire aux comptes formule la justification de ses appréciations par référence explicite aux dispositions de l'article L. 823-9 et de manière appropriée au regard des circonstances propres à chaque cas d'espèce. 10. Cette formulation doit être claire et comprendre, pour chaque appréciation devant être justifiée : # l'identification du sujet et la référence, si elle est possible, à l'annexe aux comptes ; # un résumé des diligences effectuées par le commissaire aux comptes pour fonder son appréciation ; # une conclusion, exprimée de façon positive, en cohérence avec l'opinion formulée sur les comptes, et qui ne constitue pas une réserve déguisée. 11. Le commissaire aux comptes précise que les appréciations justifiées s'inscrivent dans le cadre de la démarche d'audit des comptes, pris dans leur ensemble, et ont donc contribué à la formation de l'opinion exprimée sur ces comptes. La formulation retenue ne doit pas conduire à apporter une assurance spécifique sur les éléments isolés des comptes faisant l'objet d'une justification des appréciations du commissaire aux comptes. 12. La justification des appréciations peut éventuellement être formulée de manière moins développée dans les cas où : # les principes comptables retenus par l'entité ou le groupe ne donnent pas lieu à plusieurs interprétations ou options possibles, y compris dans leurs modalités d'application, pour ce qui concerne les éléments significatifs du bilan et du compte de résultat ; # il n'existe pas d'événement ou de décision intervenus au cours de l'exercice dont l'incidence sur les comptes ou la compréhension que pourrait en avoir un lecteur est apparue importante au commissaire aux comptes ; # aucun élément significatif dans les comptes n'est constitué à partir d'estimations fondées sur des données subjectives.
Place de la justification des appréciations dans le rapport
13. La justification des appréciations du commissaire aux comptes figure dans une partie de rapport distincte, placée après celle relative à l'expression de l'opinion du commissaire aux comptes. Le rapport sur les comptes comporte ainsi les trois parties distinctes suivantes, nettement individualisées : # opinion sur les comptes annuels ou opinion sur les comptes consolidés, y compris, le cas échéant, la motivation des réserves ou du refus de certifier et le paragraphe prévu pour les observations ; # justification des appréciations ; # vérifications et informations spécifiques pour les comptes annuels ou vérification spécifique pour les comptes consolidés.
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Lien entre la justification des appréciations et les observations
14. Lorsqu'un point concernant les comptes nécessite à la fois une observation et une justification des appréciations, ce point est évoqué respectivement dans la première partie du rapport après l'expression de l'opinion au titre de l'observation et dans la deuxième partie du rapport au titre de la justification des appréciations. Cette situation peut se présenter, par exemple, lorsqu'un changement de méthode comptable est intervenu, ou lorsqu'il existe une incertitude relative à la continuité de l'exploitation.
Précision concernant la certification avec réserve
15.L'exposé des motivations fondant une certification avec réserve constitue une justification des appréciations et trouve sa place avant l'expression de l'opinion émise sur les comptes. Une certification avec réserve ne dispense pas le commissaire aux comptes de devoir justifier de ses appréciations sur d'autres points que ceux ayant motivé la réserve même si ces autres appréciations ne posent pas de difficultés particulières. Ces autres justifications d'appréciations figurent dans la deuxième partie de son rapport.
Cas du refus de certifier
16.L'exposé des motivations conduisant à un refus de certifier est de nature à répondre à l'obligation de justification des appréciations. Dans cette situation, le commissaire aux comptes n'a pas à justifier de ses appréciations sur d'autres points que ceux ayant motivé le refus de certifier. Il précise dans la partie du rapport relative à la justification des appréciations qu'il n'y a pas lieu de justifier d'autres appréciations eu égard à la nature de l'opinion exprimée dans la première partie de son rapport.
Paragraphe 8 : De la certification des comptes annuels des entités mentionnées à l'article L. 823-12-1.
Article A823-27-1
La norme d'exercice professionnel relative à la certification des comptes annuels des entités mentionnées à l'article L. 823-12-1, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE À LA CERTIFICATION DES COMPTES ANNUELS DES ENTITÉS MENTIONNÉES À L'ARTICLE L. 823-12-1 DU CODE DE COMMERCE
Introduction
1. Conformément au premier alinéa de l'article L. 823-9, " les commissaires aux comptes certifient, en justifiant de leurs appréciations, que les comptes annuels sont réguliers et sincères et donnent une image fidèle du résultat des opérations de l'exercice écoulé ainsi que de la situation financière et du patrimoine de la personne ou de l'entité à la fin de cet exercice ".
2. La présente norme a pour objet de définir les principes et des modalités de mise en œuvre applicables à l'audit réalisé par le commissaire aux comptes en vue de certifier les comptes des
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entités mentionnées à l'article L. 823-12-1.
Principes
3. Pour fonder son opinion sur les comptes, le commissaire aux comptes accomplit les diligences prévues par les normes d'exercice professionnel relatives à la certification des comptes, dont il adapte les modalités de mise en œuvre en se fondant sur son jugement professionnel et sur la présente norme.
4. En particulier, les dispositions de la norme d'exercice professionnel " principes applicables à l'audit des comptes mis en œuvre dans le cadre de la certification des comptes " s'appliquent.
Principales modalités de mise en œuvre
5. Le commissaire aux comptes adapte, s'il y a lieu, la nature, le calendrier et l'étendue des procédures d'audit à mettre en œuvre pour prendre en compte notamment : le nombre peu élevé et la simplicité des opérations traitées par l'entité, l'organisation interne et les modes de financement de l'entité, la présence d'un expert-comptable, l'implication directe du dirigeant dans le contrôle interne de l'entité, le nombre restreint d'associés.
Dans ce cadre, le commissaire aux comptes procède, notamment, aux adaptations visées aux paragraphes 6 à 16 de la présente norme.
6. Lettre de mission :
Le commissaire aux comptes intervenant dans ces entités fait explicitement référence à la présente norme dans sa lettre de mission, et adopte en fonction de son jugement professionnel une rédaction appropriée au contexte de l'entité contrôlée.
7. Prise en considération de la possibilité de fraudes lors de l'audit des comptes :
Lors de l'identification et de l'évaluation du risque d'anomalies significatives dans les comptes résultant de fraudes, le commissaire aux comptes utilise la connaissance qu'il a du contexte et du tissu économique dans lesquels évolue l'entité.
La communication directe qu'il a avec le dirigeant de l'entité, dans le cadre de sa mission, peut lui permettre d'appréhender le comportement et l'éthique professionnels de celui-ci.
8. Connaissance de l'entité et de son environnement et évaluation du risque d'anomalies significatives dans les comptes :
Dès lors que le commissaire aux comptes est en mesure d'apprécier le comportement et l'éthique professionnels du dirigeant, l'implication de ce dernier dans le processus d'autorisation et de contrôle des opérations peut constituer un élément de contrôle interne pertinent pour l'audit que le commissaire aux comptes peut utiliser pour alléger les procédures mises en œuvre à l'issue de l'évaluation des risques.
9. Procédures d'audit mises en œuvre par le commissaire aux comptes à l'issue de son évaluation des risques :
Le commissaire aux comptes peut limiter la nature et l'étendue de ses contrôles de substance, en fonction notamment de l'environnement de contrôle de l'entité, du calendrier de son intervention si
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celui-ci lui permet de constater le dénouement des opérations enregistrées dans les comptes et enfin de la présence éventuelle d'un expert-comptable.
10. Demandes de confirmation des tiers :
Lorsque son intervention a lieu plusieurs semaines après la clôture de l'exercice, le commissaire aux comptes peut estimer pertinent de valider la réalité des créances clients par les encaissements intervenus sur la période subséquente, et de contrôler l'exhaustivité des dettes fournisseurs par rapport aux factures reçues ou aux règlements effectués postérieurement à la clôture.L'utilisation de ces techniques de contrôle permet de limiter le recours à des demandes de confirmation des clients et fournisseurs.
11. Appréciation des estimations comptables :
Le calendrier d'intervention du commissaire aux comptes peut lui permettre de s'appuyer, pour le contrôle de certaines estimations comptables, sur l'examen du dénouement postérieur à la clôture de l'exercice des opérations objets de ces estimations.
12. Evénements postérieurs à la clôture de l'exercice :
Dans un environnement de contrôle caractérisé par une implication opérationnelle du dirigeant, le commissaire aux comptes peut privilégier un entretien avec celui-ci pour identifier les événements postérieurs à la clôture.
13. Déclarations de la direction :
Le commissaire aux comptes adapte au contexte de l'entité contrôlée la formulation des déclarations écrites qu'il demande à la direction, ou bien qu'il adresse au représentant légal de l'entité en lui demandant d'en confirmer les termes.
14. Utilisation des travaux d'un expert-comptable :
Lorsque l'entité a recours aux services d'un expert-comptable, le commissaire aux comptes peut utiliser les travaux réalisés par ce dernier en tant qu'éléments collectés à l'appui de ses conclusions. Dès lors que pour certains comptes il estime que ces travaux sont suffisants et appropriés, il se limite à mettre en œuvre des procédures analytiques lui permettant de comprendre l'évolution des comptes concernés.
15. Justification des appréciations :
Le commissaire aux comptes peut adopter une rédaction succincte pour la justification de ses appréciations au sein de son rapport sur les comptes annuels lorsque les comptes de l'entité contrôlée ne comportent pas d'estimations comptables significatives fondées sur des données subjectives, que la présentation des annexes et des états de synthèse ne présente pas de complexité particulière et que le nombre d'options dans le choix des méthodes comptables ou dans leurs modalités de mise en œuvre est réduit.
16. Documentation des travaux :
Le commissaire aux comptes constitue, dans le respect de l'article R. 823-10 et en prenant en compte les dispositions de la présente norme, un dossier adapté à la taille et aux caractéristiques de l'entité contrôlée et à la complexité de la mission.
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Sous-section 3 : Des autres interventions du commissaire aux comptes prévues par les textes légaux et réglementaires
Article A823-28
La norme d'exercice professionnel relative à l'examen limité de comptes intermédiaires en application de dispositions légales ou réglementaires, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE À L'EXAMEN LIMITÉ DE COMPTES INTERMÉDIAIRES EN APPLICATION DE DISPOSITIONS LÉGALES OU RÉGLEMENTAIRES
Introduction
1. Le commissaire aux comptes d'une entité peut être conduit à mener, en application de dispositions légales ou réglementaires, un examen limité de comptes intermédiaires, qui peuvent être des comptes condensés, présentés, le cas échéant, sous forme consolidée. 2. La présente norme a pour objet de définir les principes que le commissaire aux comptes applique lorsqu'il conduit un examen limité de comptes intermédiaires. 3. Elle définit en outre les principes relatifs à l'établissement du rapport d'examen limité du commissaire aux comptes.
Respect des textes et esprit critique
4. Le commissaire aux comptes réalise l'examen limité des comptes intermédiaires conformément aux textes légaux et réglementaires et à la présente norme d'exercice professionnel. 5. Le commissaire aux comptes respecte les dispositions du code de déontologie de la profession. 6. Tout au long de ses travaux, le commissaire aux comptes : # fait preuve d'esprit critique et tient compte du fait que certaines situations peuvent conduire à des anomalies significatives dans les comptes ; # exerce son jugement professionnel, notamment pour décider de la nature, du calendrier et de l'étendue des procédures d'examen limité à mettre en œuvre, et pour conclure à partir des éléments collectés.
Nature de l'assurance
7. Lorsqu'il conduit un examen limité de comptes intermédiaires, le commissaire aux comptes met en œuvre des procédures moins étendues que celles requises pour un audit des comptes réalisé pour les besoins de la certification. 8. L'examen limité de comptes intermédiaires consiste essentiellement, pour le commissaire aux comptes, à s'entretenir avec la direction et à mettre en œuvre des procédures analytiques. 9. Il obtient l'assurance, moins élevée que celle obtenue dans le cadre d'un audit des comptes réalisé pour les besoins de la certification, que les comptes intermédiaires ne comportent pas d'anomalies significatives. 10. Cette assurance, qualifiée d'assurance modérée, lui permet de formuler une conclusion selon laquelle il n'a pas relevé d'anomalies significatives dans les comptes intermédiaires, pris dans leur ensemble.
Anomalies significatives et seuil de signification
11. Pour déterminer le seuil ou les seuils de signification et évaluer l'incidence des anomalies détectées sur sa conclusion, le commissaire aux comptes applique les principes définis dans la norme d'exercice professionnel relative aux anomalies significatives et au seuil de signification
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applicable à l'audit des comptes réalisé pour les besoins de la certification.
Travaux à mettre en œuvre par le commissaire aux comptesLettre de mission
12. Le commissaire aux comptes définit les termes et conditions de l'examen limité dans la lettre de mission établie conformément aux principes définis dans la norme d'exercice professionnel relative à la lettre de mission du commissaire aux comptes applicable à l'audit des comptes réalisé pour les besoins de la certification ou dans une lettre de mission spécifique établie conformément à ces mêmes principes.Prise de connaissance de l'entité et de son environnement, y compris son contrôle interne, et évaluation du risque d'anomalies significatives dans les comptes 13. Le commissaire aux comptes acquiert une connaissance suffisante de l'entité et de son environnement, notamment de son contrôle interne, afin d'identifier et d'évaluer le risque d'anomalies significatives dans les comptes intermédiaires et afin de concevoir et mettre en œuvre des procédures lui permettant de fonder sa conclusion sur ces comptes. 14. Lorsqu'au cours de l'audit des comptes de l'exercice précédent ou de l'examen limité des comptes intermédiaires précédents, le commissaire aux comptes a collecté des éléments relatifs à la prise de connaissance de l'entité et de son environnement et à l'évaluation du risque d'anomalies significatives dans les comptes, il assure un suivi des facteurs de risque identifiés lors de ces contrôles. 15. Pour ce faire, le commissaire aux comptes : # relève notamment, dans son dossier de l'exercice précédent, les éléments identifiés suivants : # les déficiences majeures dans la conception ou la mise en œuvre du contrôle interne ; # les risques inhérents élevés qui requièrent une démarche particulière ; # les anomalies significatives corrigées ou non ; # s'enquiert auprès de la direction des changements survenus depuis la période précédente susceptibles d'affecter la pertinence des informations recueillies. Il s'agit notamment de changements survenus au titre des éléments du contrôle interne, de la nature des activités de l'entité, du choix des méthodes comptables appliquées ou de tout autre événement qu'elle estime susceptible d'avoir une incidence déterminante sur l'activité de l'entité ou sur la préparation des comptes intermédiaires. 16. Lorsque le commissaire aux comptes intervient au titre de la première année de son mandat et qu'il n'a pas réalisé préalablement d'audit des comptes de l'entité : # il prend connaissance de l'entité et de son environnement à partir de la revue des dossiers de son prédécesseur ou, le cas échéant, du co-commissaire aux comptes. Il s'intéresse particulièrement : # aux facteurs identifiés par le prédécesseur ou, le cas échéant, par le co-commissaire aux comptes comme pouvant engendrer des anomalies significatives dans les comptes ; # à leur évaluation du risque d'anomalies significatives réalisée pour les besoins de ces contrôles ; # il s'enquiert auprès de la direction des changements survenus depuis la période précédente susceptibles d'affecter la pertinence des informations recueillies.
Entretiens avec la direction
17. Le commissaire aux comptes s'entretient, principalement avec les membres de la direction en charge des aspects financiers et comptables, des éléments suivants : # leur appréciation du risque que les comptes comportent des anomalies significatives résultant de fraudes ; # l'évolution des procédures mises en place pour identifier les risques de fraude dans l'entité et pour y répondre ; # leur connaissance éventuelle de fraudes avérées, suspectées ou simplement alléguées concernant l'entité ; # l'évolution des procédures conçues et mises en œuvre dans l'entité visant à assurer le respect des textes légaux et réglementaires ; # les anomalies relevées par le commissaire aux comptes que celui-ci estime significatives et devant à ce titre être corrigées et les anomalies qu'il estime non significatives ; # la survenance, jusqu'à une date aussi rapprochée que possible de la date de signature de son rapport d'examen limité, d'événements postérieurs à la clôture de la période tels que définis dans la norme d'exercice professionnel applicable à l'audit des comptes réalisé pour les besoins de la certification ; # des changements comptables tels que définis dans la norme d'exercice professionnel applicable à l'audit des comptes réalisé pour les besoins de la certification, survenus au cours de la période contrôlée ; # des opérations non courantes, en raison de leur importance ou de leur nature, ou complexes réalisées au cours de la période contrôlée ; # des hypothèses retenues
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pour procéder aux estimations comptables, des intentions de la direction et de la capacité de l'entité à mener à bien les actions envisagées ; # du traitement comptable des opérations avec les parties liées ; # des faits ou événements susceptibles de remettre en cause la continuité d'exploitation de l'entité, et, le cas échéant, des plans d'actions qu'elle a définis pour l'avenir de l'entité ; # de tout autre élément qu'il estime utile pour fonder sa conclusion sur les comptes intermédiaires.
Procédures analytiques
18. Dans le cadre de l'examen limité, le commissaire aux comptes met en œuvre des procédures analytiques en appliquant les principes définis dans la norme d'exercice professionnel relative aux procédures analytiques applicable à l'audit des comptes réalisé pour les besoins de la certification.
Autres procédures d'examen limité
19. Le commissaire aux comptes rapproche les comptes intermédiaires avec les documents comptables dont ils sont issus. 20. Lorsque le commissaire aux comptes identifie des éléments susceptibles de mettre en cause la continuité d'exploitation, il : # prend connaissance, si elle existe, de l'évaluation faite par la direction de la capacité de l'entité à poursuivre son exploitation et en apprécie la pertinence. Si la direction n'a pas formalisé cette évaluation, le commissaire aux comptes s'enquiert auprès d'elle des raisons qui l'ont conduite à établir les comptes dans une perspective de continuité d'exploitation ; et # apprécie, le cas échéant, le caractère approprié des informations données à cet égard dans l'annexe des comptes. 21. Le commissaire aux comptes consulte les procès-verbaux ou les comptes-rendus des réunions tenues par l'organe appelé à statuer sur les comptes, par l'organe d'administration ou de surveillance et par la direction, afin d'identifier les délibérations ou décisions pouvant avoir une incidence sur les comptes. 22. Il peut également estimer utile de mettre en œuvre d'autres procédures telles que des inspections d'enregistrements ou de documents ou des vérifications de calculs.
Déclarations du représentant légal
23. Le commissaire aux comptes applique les principes de la norme d'exercice professionnel relative aux déclarations de la direction applicable à l'audit des comptes réalisé pour les besoins de la certification. 24. Indépendamment d'autres déclarations écrites que le commissaire aux comptes estimerait nécessaires, il demande au représentant légal des déclarations écrites par lesquelles : # il déclare que des contrôles destinés à prévenir et à détecter les erreurs et les fraudes ont été conçus et mis en œuvre dans l'entité ; # il déclare lui avoir signalé toutes les fraudes avérées dont il a eu connaissance ou qu'il a suspectées, dès lors que la fraude est susceptible d'entraîner des anomalies significatives dans les comptes ; # il estime que les anomalies non corrigées relevées par le commissaire aux comptes ne sont pas, seules ou cumulées, significatives au regard des comptes pris dans leur ensemble. Un état de ces anomalies non corrigées est joint à cette déclaration écrite. En outre, lorsque le représentant légal responsable des comptes considère que certains éléments reportés sur cet état ne constituent pas des anomalies, il le mentionne dans sa déclaration ; # il confirme lui avoir communiqué son appréciation sur le risque que les comptes puissent comporter des anomalies significatives résultant de fraudes ; # il déclare avoir, au mieux de sa connaissance, appliqué les textes légaux et réglementaires ; # il déclare qu'à ce jour il n'a connaissance d'aucun événement survenu depuis la date de clôture de la période qui nécessiterait un traitement comptable.
Communication
25. Le commissaire aux comptes communique à la direction, au niveau de responsabilité approprié, et à l'organe d'administration ou de surveillance les éléments prévus dans les normes d'exercice professionnel applicables à l'audit des comptes réalisé pour les besoins de la certification.
Forme du rapport d'examen limité du commissaire aux comptes
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26. Le commissaire aux comptes établit un rapport qui comporte les informations suivantes : a) Un titre qui indique qu'il s'agit d'un rapport de commissaire aux comptes ; b) L'indication de l'organe auquel le rapport est destiné ; c) Une introduction qui précise : # l'origine de sa nomination ; # la nature des comptes intermédiaires, individuels ou consolidés, le cas échéant condensés, qui font l'objet du rapport et sont joints à ce dernier ; # l'entité dont les comptes font l'objet d'un examen limité ; # la période sur laquelle ils portent ; # et les rôles respectifs de l'organe compétent de l'entité pour établir les comptes intermédiaires et du commissaire aux comptes ; d) Un paragraphe décrivant les procédures mises en œuvre par le commissaire aux comptes dans le cadre de son examen limité ; e) La formulation de la conclusion du commissaire aux comptes ; f) La date du rapport ; g) Le cas échéant, la signature sociale de la société de commissaire aux comptes ; h) La signature du commissaire aux comptes exerçant à titre individuel ou, le cas échéant, de celui ou de ceux des commissaires aux comptes associés, actionnaires ou dirigeants de la société de commissaire aux comptes qui ont participé à l'établissement du rapport.
Conclusions formulées par le commissaire aux comptes
27. Lorsque l'examen limité de comptes intermédiaires porte sur des comptes complets, présentés le cas échéant sous une forme consolidée, le commissaire aux comptes se prononce sur la régularité, la sincérité et l'image fidèle des comptes. 28. Lorsque l'examen limité de comptes intermédiaires porte sur des comptes condensés, présentés le cas échéant sous une forme consolidée, le commissaire aux comptes se prononce sur la conformité des comptes avec les principes qui leur sont applicables, définis dans le référentiel comptable. 29. Le commissaire aux comptes formule : # soit une conclusion sans réserve ; # soit une conclusion avec réserve ; # soit une conclusion défavorable ; # soit une impossibilité de conclure.
Conclusion sans réserve
30. Le commissaire aux comptes formule une conclusion sans réserve lorsque l'examen limité des comptes intermédiaires qu'il a mis en œuvre lui a permis d'obtenir l'assurance modérée que les comptes, pris dans leur ensemble, ne comportent pas d'anomalies significatives.
Conclusion avec réserve
31. Le commissaire aux comptes formule une conclusion avec réserve : # lorsqu'il a identifié au cours de l'examen limité des comptes intermédiaires des anomalies significatives et que celles-ci n'ont pas été corrigées ; # ou lorsqu'il n'a pas pu mettre en œuvre toutes les procédures nécessaires pour fonder sa conclusion sur les comptes intermédiaires ;et que : # les incidences sur les comptes intermédiaires des anomalies significatives ou des limitations à ses travaux sont clairement circonscrites ; # la formulation de la réserve est suffisante pour permettre à l'utilisateur des comptes de fonder son jugement en connaissance de cause.
Conclusion défavorable
32. Le commissaire aux comptes formule une conclusion défavorable : # lorsqu'il a détecté au cours de l'examen limité des comptes intermédiaires des anomalies significatives et que celles-ci n'ont pas été corrigées ;et que : # les incidences sur les comptes intermédiaires des anomalies significatives ne peuvent être clairement circonscrites, ou la formulation d'une réserve n'est pas suffisante pour permettre à l'utilisateur des comptes de fonder son jugement en connaissance de cause.
Impossibilité de conclure
33. Le commissaire aux comptes formule une impossibilité de conclure : # lorsqu'il n'a pas pu mettre en œuvre toutes les procédures nécessaires pour fonder sa conclusion sur les comptes ;et que
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: # les incidences sur les comptes intermédiaires des limitations à ses travaux ne peuvent être clairement circonscrites ; # ou la formulation d'une réserve n'est pas suffisante pour permettre à l'utilisateur des comptes intermédiaires de fonder son jugement en connaissance de cause. 34. Le commissaire aux comptes formule également une impossibilité de conclure lorsqu'il existe de multiples incertitudes dont les incidences sur les comptes ne peuvent être clairement circonscrites.
Observations
35. Lorsqu'il émet une conclusion sans réserve ou avec réserve, le commissaire aux comptes formule, s'il y a lieu, toutes observations utiles. 36. En formulant une observation, le commissaire aux comptes attire l'attention du lecteur des comptes intermédiaires sur une information fournie dans l'annexe. Il ne peut pas dispenser d'informations dont la diffusion relève de la responsabilité des dirigeants. 37. Les observations sont formulées dans un paragraphe distinct inséré après la conclusion. 38. Le commissaire aux comptes formule systématiquement une observation sur les informations fournies dans l'annexe : # en cas d'incertitude sur la continuité de l'exploitation ; # en cas de changement de méthodes comptables survenu au cours de la période.
Documentation
39. Le commissaire aux comptes consigne dans son dossier les éléments suffisants et appropriés pour fonder ses conclusions et permettant d'établir que son examen limité a été effectué selon la présente norme.
Article A823-29
La norme d'exercice professionnel relative au rapport du commissaire aux comptes établi en application de l'article L. 225-235 du code de commerce sur le rapport du président, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE AU RAPPORT DU COMMISSAIRE AUX COMPTES ÉTABLI EN APPLICATION DE L'ARTICLE L. 225-235 DU CODE DE COMMERCE SUR LE RAPPORT DU PRÉSIDENT
Introduction
01. En application de l'article L. 225-235 du code de commerce, le commissaire aux comptes :
-présente, dans un rapport joint à son rapport général ou, le cas échéant, à son rapport sur les comptes consolidés ses observations sur le rapport du président visé aux articles L. 225-37 et L. 225-68 du code de commerce, pour celles des procédures de contrôle interne relatives à l'élaboration et au traitement de l'information comptable et financière ;
-atteste l'établissement des autres informations requises aux articles L. 225-37 et L. 225-68 du code de commerce devant figurer dans le rapport du président.
02. Ces dispositions s'appliquent à tout commissaire aux comptes qui exerce sa mission de certification dans une société anonyme ou une société européenne dont les titres financiers sont admis aux négociations sur un marché réglementé.
03. La présente norme a pour objet de définir les principes relatifs à l'établissement par le commissaire aux comptes de son rapport sur le rapport du président.
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Rappel des obligations du président et de la société
04. En application des articles L. 225-37 et L. 225-68 du code de commerce, le président du conseil d'administration ou le président du conseil de surveillance rend compte dans un rapport à l'assemblée générale, joint au rapport du conseil d'administration ou du directoire, des éléments suivants :
-la composition, les conditions de préparation et d'organisation des travaux du conseil d'administration ou du conseil de surveillance, selon le cas, ainsi que les procédures de contrôle interne et de gestion des risques mises en place par la société, en détaillant notamment celles de ces procédures qui sont relatives à l'élaboration et au traitement de l'information comptable et financière pour les comptes sociaux et, le cas échéant, pour les comptes consolidés ;
-les éventuelles limitations que le conseil d'administration apporte aux pouvoirs du directeur général ;
-lorsque la société se réfère volontairement à un code de gouvernement d'entreprise élaboré par les organisations représentatives des entreprises, les dispositions qui ont été écartées et les raisons pour lesquelles elles l'ont été ainsi que le lieu où ce code peut être consulté ;
-si la société ne se réfère pas à un tel code, les règles retenues en complément des exigences requises par la loi et les raisons pour lesquelles la société a décidé de n'appliquer aucune disposition d'un code de gouvernement d'entreprise ;
-les modalités particulières relatives à la participation des actionnaires à l'assemblée générale, le rapport pouvant procéder par renvoi aux dispositions des statuts qui prévoient ces modalités.
Dans les sociétés dont les titres sont admis aux négociations sur un marché réglementé, ce rapport présente en outre les principes et les règles arrêtés par le conseil d'administration ou le conseil de surveillance pour déterminer les rémunérations et avantages de toute nature accordés aux mandataires sociaux et mentionne la publication des informations prévues par l'article L. 225-100-3 du code de commerce relatives aux éléments susceptibles d'avoir une incidence en cas d'offre publique.
05. Ce rapport est approuvé par le conseil d'administration ou le conseil de surveillance et est rendu public.
Diligences relatives aux informations dans le rapport du président sur les procédures de contrôle interne relatives à l'élaboration et au traitement de l'information comptable et financière
06. Les procédures de contrôle interne relatives à l'élaboration et au traitement de l'information comptable et financière s'entendent de celles qui permettent à la société de produire, dans des conditions de nature à pouvoir en garantir la fiabilité, les comptes et les informations sur la situation financière et sur ces comptes. Ces informations sont celles extraites de comptes intermédiaires ou des comptes annuels ou consolidés, ou celles qui peuvent être rapprochées des données ayant servi à l'établissement de ces comptes.
07.L'intervention du commissaire aux comptes ne consiste pas à porter une appréciation sur les procédures de contrôle interne en tant que telles mais à apprécier la sincérité des informations contenues dans le rapport du président sur les procédures de contrôle interne relatives à l'élaboration et au traitement de l'information comptable et financière.
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Pour ce faire, le commissaire aux comptes :
-prend connaissance des procédures de contrôle interne relatives à l'élaboration et au traitement de l'information comptable et financière sous-tendant les informations présentées dans le rapport du président et consulte la documentation existante ;
-prend connaissance des travaux qui ont permis d'élaborer ces informations et consulte la documentation existante ;
-détermine si les déficiences majeures du contrôle interne relatif à l'élaboration et au traitement de l'information comptable et financière qu'il aurait relevées dans le cadre de sa mission font l'objet d'une information appropriée dans le rapport du président.
08. Lorsque, à l'issue de ses travaux, le commissaire aux comptes relève dans le rapport du président des informations sur les procédures de contrôle interne relatives à l'élaboration et au traitement de l'information comptable et financière qui ne correspondent pas à ses propres constatations ou lorsque ces informations ne sont pas sincères ou sont insuffisamment justifiées, il s'entretient avec le président à l'effet d'obtenir les modifications qu'il estime nécessaires.A défaut d'obtenir satisfaction, il formule, dans son rapport, les observations qu'il estime nécessaires.
Ces observations peuvent notamment porter sur :
-la description donnée des procédures de contrôle interne relatives à l'élaboration et au traitement de l'information comptable et financière ;
-l'absence d'éléments disponibles lui permettant d'apprécier certaines informations contenues dans le rapport du président ;
-l'omission de déficiences majeures du contrôle interne relatif à l'élaboration et au traitement de l'information comptable et financière qu'il aurait relevées dans le cadre de sa mission.
09. Lorsque le commissaire aux comptes est conduit à formuler des observations dans son rapport, il les porte à la connaissance de l'organe collégial chargé de l'administration ou de l'organe chargé de la direction et de l'organe de surveillance ainsi que, le cas échéant, du comité spécialisé agissant sous la responsabilité exclusive et collective de ces organes.
Diligences relatives aux autres informations
10. Le commissaire aux comptes vérifie que les informations, autres que celles portant sur les procédures de contrôle interne relatives à l'élaboration et au traitement de l'information comptable et financière, requises aux articles L. 225-37 et L. 225-68 du code de commerce figurent dans le rapport du président. Si tel n'est pas le cas, il s'entretient avec le président à l'effet d'obtenir les compléments qu'il estime nécessaires.A défaut d'obtenir ces compléments, il signale dans son rapport l'irrégularité constituée par l'absence de certaines de ces informations.
11. Le commissaire aux comptes n'a pas à vérifier la sincérité des informations, autres que celles portant sur les procédures de contrôle interne relatives à l'élaboration et au traitement de l'information comptable et financière, contenues dans le rapport du président, que ces informations soient requises par les articles L. 225-37 et L. 225-68 du code de commerce ou non ; notamment, il n'a pas à prendre connaissance des travaux qui ont permis d'élaborer ces autres informations ni de la documentation disponible.
Sa lecture du rapport du président lui permet toutefois de relever, le cas échéant, les informations
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qui lui apparaîtraient manifestement incohérentes. Dans une telle situation, il s'entretient avec le président à l'effet d'obtenir les modifications qu'il estime nécessaires.A défaut d'obtenir satisfaction, le commissaire aux comptes formule une observation dans son rapport sur le caractère manifestement incohérent de ces autres informations.
Rapport du commissaire aux comptes
sur le rapport du président
12. Le rapport du commissaire aux comptes comporte les mentions suivantes :
-un intitulé ;
-le destinataire du rapport ;
-un paragraphe d'introduction comportant le rappel de sa qualité de commissaire aux comptes, les objectifs de son intervention et le texte de loi applicable, l'identification du rapport du président et l'exercice concerné.
Dans une partie relative aux informations concernant les procédures de contrôle interne relatives à l'élaboration et au traitement de l'information comptable et financière :
-un paragraphe comportant une description des diligences qu'il a mises en œuvre conformément aux normes d'exercice professionnel ;
-une conclusion sous la forme d'observations, ou au contraire d'absence d'observations, à exprimer sur les informations contenues dans le rapport du président portant sur les procédures de contrôle interne relatives à l'élaboration et au traitement de l'information comptable et financière.
Dans une partie relative aux autres informations :
-une attestation de l'établissement des autres informations requises aux articles L. 225-37 et L. 225-68 du code de commerce ou, à défaut, le signalement de l'irrégularité constituée par l'absence de certaines de ces informations ;
-le cas échéant, ses observations sur le caractère manifestement incohérent des autres informations ;
-la date du rapport ;
-l'adresse et l'identification du (des) signataire (s) du rapport.
13. Lorsque le président n'établit pas le rapport prévu par les dispositions légales précitées, ou ne rend pas compte dans ce rapport des procédures de contrôle interne relatives à l'élaboration et au traitement de l'information comptable et financière, le commissaire aux comptes formule, dans le rapport prévu à l'article L. 225-235 du code de commerce, une observation traduisant son impossibilité de conclure et mentionne l'irrégularité correspondante ainsi relevée.
Hypothèse d'un rapport du président comportant une évaluation des procédures de contrôle interne relatives à l'élaboration et au traitement de l'information comptable et financière
14. Le commissaire aux comptes met en œuvre, sur les informations portant sur l'évaluation des procédures de contrôle interne relatives à l'élaboration et au traitement de l'information comptable et financière, les diligences prévues dans la présente norme. En outre :
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-il prend connaissance du processus d'évaluation mis en place ainsi que de sa documentation ;
-et apprécie la qualité et le caractère suffisant de la documentation existante.
15. Le cas échéant, le commissaire aux comptes formule dans son rapport, au titre des informations portant sur l'évaluation des procédures de contrôle interne relatives à l'élaboration et au traitement de l'information comptable et financière, les observations prévues dans la présente norme, qui peuvent, en outre, être relatives :
-à l'appréciation portée par le président sur l'adéquation et l'efficacité des procédures de contrôle interne relatives à l'élaboration et au traitement de l'information comptable et financière ;
-aux raisons pour lesquelles les diligences qu'il a mises en œuvre conformément à la présente norme ne lui permettent pas de se prononcer sur ces informations.
Article A823-29-1
La norme d'exercice professionnel relative aux travaux du commissaire aux comptes relatifs au rapport de gestion et aux autres documents adressés aux membres de l'organe appelé à statuer sur les comptes en application de l'article L. 823-10, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
" NORME D'EXERCICE PROFESSIONNEL RELATIVE AUX TRAVAUX DU COMMISSAIRE AUX COMPTES RELATIFS AU RAPPORT DE GESTION ET AUX AUTRES DOCUMENTS ADRESSÉS AUX MEMBRES DE L'ORGANE APPELÉ À STATUER SUR LES COMPTES EN APPLICATION DE L'ARTICLE L. 823-10 DU CODE DE COMMERCE
Introduction
01. En application des articles L. 820-1 et L. 823-10 alinéas 2 et 3 du code de commerce, le commissaire aux comptes vérifie, dans toutes les personnes et entités, la sincérité et la concordance avec les comptes annuels des informations données dans le rapport de gestion du conseil d'administration, du directoire ou de tout organe de direction, et dans les documents adressés aux actionnaires ou associés sur la situation financière et les comptes annuels. Dans les sociétés dont les titres sont admis aux négociations sur un marché réglementé ou qui sont contrôlées au sens de l'article L. 233-16 par une telle société, il atteste spécialement l'exactitude et la sincérité des informations relatives aux rémunérations et aux avantages de toute nature versés à chaque mandataire social.
Il vérifie, le cas échéant, la sincérité et la concordance avec les comptes consolidés des informations données dans le rapport sur la gestion du groupe.
02. En application de l'article R. 823-7 (2° et 3°), dans son rapport à l'assemblée générale ordinaire, le commissaire aux comptes fait état de ses observations sur la sincérité et la concordance avec les comptes des informations données dans le rapport de gestion de l'exercice et dans les documents
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adressés aux actionnaires sur la situation financière de la société et de l'ensemble des entreprises comprises dans la consolidation et atteste spécialement l'exactitude et la sincérité des informations mentionnées aux trois premiers alinéas de l'article L. 225-102-1.
03. La présente norme a pour objet de définir les diligences que le commissaire aux comptes met en œuvre afin de :
# vérifier la sincérité et la concordance avec les comptes annuels des informations données dans le rapport de gestion et dans les autres documents adressés à l'organe appelé à statuer sur les comptes ;
# vérifier, le cas échéant, la sincérité et la concordance avec les comptes consolidés des informations données dans le rapport sur la gestion du groupe ;
# vérifier, le cas échéant, l'exactitude et la sincérité des informations relatives aux rémunérations et aux avantages de toute nature versés à chaque mandataire social.
04. Elle définit également les principes relatifs à la formulation, par le commissaire aux comptes, de ses observations.
05. Les diligences du commissaire aux comptes sur les documents adressés aux membres de l'organe appelé à statuer sur les comptes, ou mis à leur disposition, portent sur les documents relatifs à la situation financière et aux comptes annuels ou consolidés, que ces documents soient :
# prévus par les textes légaux ou réglementaires applicables à l'entité ;
# prévus par les statuts de l'entité ;
# ou établis à l'initiative de l'entité et communiqués au commissaire aux comptes avant la date d'établissement de son rapport.
06. Les informations présentées dans le rapport de gestion et dans les autres documents relatifs à la situation financière et aux comptes annuels ou consolidés adressés à l'organe appelé à statuer sur les comptes sont classées en trois catégories pour les besoins de la norme :
# les informations sur la situation financière et les comptes annuels et, le cas échéant, les comptes consolidés ;
# les informations relatives aux rémunérations et aux avantages de toute nature versés à chaque mandataire social prévues aux trois premiers alinéas de l'article L. 225-102-1 ;
# les autres informations.
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Travaux relatifs aux informations sur la situation financière
et les comptes annuels et, le cas échéant, les comptes consolidés
07. Les informations sur la situation financière et les comptes annuels et, le cas échéant, les comptes consolidés, sont celles extraites des comptes ou celles qui peuvent être rapprochées des données ayant servi à l'établissement de ces comptes. Ces informations peuvent être constituées de données chiffrées ou de commentaires et précisions portant sur ces comptes.
08. Il en est ainsi, à titre d'exemple, des informations suivantes :
# répartition du chiffre d'affaires par produits ;
# détail de l'évolution de certaines charges ;
# ratios d'endettement et autres ratios financiers ;
# résultat opérationnel de chaque unité de production ;
# décomposition par date d'échéance des soldes des dettes à l'égard des fournisseurs, telle que prévue par le code de commerce.
09. Le commissaire aux comptes vérifie que ces informations reflètent la situation de l'entité et l'importance relative des événements enregistrés dans les comptes telles qu'il les connaît à la suite des travaux menés au cours de sa mission.
10. Il vérifie que chaque information significative concorde avec les comptes dont elle est issue ou avec les données ayant servi à l'établissement de ces comptes.
Travaux relatifs aux informations prévues
aux trois premiers alinéas de l'article L. 225-102-1
11. Dans les cas où l'entité fournit les informations relatives aux rémunérations et aux avantages de toute nature versés à chaque mandataire social, ainsi qu'aux engagements consentis en leur faveur, prévues à l'article L. 225-102-1, le commissaire aux comptes en vérifie l'exactitude et la sincérité.
A cet effet, il vérifie que les informations concordent avec les comptes ou avec les données ayant servi à l'établissement de ces comptes.
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12. Lorsque des rémunérations, avantages ou engagements sont versées ou consentis par d'autres entités, il vérifie que les informations fournies dans le rapport de gestion concordent avec les éléments recueillis par l'entité auprès de ces entités.
Travaux relatifs aux autres informations
13. Les autres informations s'entendent de celles :
# qui ne sont pas extraites des comptes annuels et, le cas échéant, des comptes consolidés ou qui ne peuvent pas être rapprochées des données ayant servi à l'établissement de ces comptes ;
# ou qui ne relèvent pas des trois premiers alinéas de l'article L. 225-102-1.
14. Le commissaire aux comptes n'a pas à vérifier les autres informations figurant dans le rapport de gestion et dans les autres documents adressés à l'organe appelé à statuer sur les comptes. Sa lecture de ces autres informations lui permet toutefois de relever, le cas échéant, celles qui lui apparaîtraient manifestement incohérentes.
15. Lorsqu'il procède à cette lecture, le commissaire aux comptes exerce son esprit critique en s'appuyant sur sa connaissance de l'entité, de son environnement et des éléments collectés au cours de l'audit et sur les conclusions auxquelles l'ont conduit les contrôles qu'il a menés.
Autres travaux
16. Le commissaire aux comptes vérifie que le rapport de gestion et les autres documents adressés à l'organe appelé à statuer sur les comptes comprennent toutes les informations requises par les textes légaux et réglementaires et, le cas échéant, par les statuts.
Formulation des conclusions
17. Lorsque, à l'issue de ses travaux, le commissaire aux comptes relève, dans le rapport de gestion ou dans les autres documents adressés à l'organe appelé à statuer sur les comptes :
# des informations sur la situation financière et les comptes annuels et, le cas échéant, les comptes
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consolidés qui ne concordent pas avec les comptes ou qui ne peuvent pas être rapprochées des données ayant servi à l'établissement de ces comptes, ou qui ne sont pas sincères ;
# des informations relatives aux rémunérations et aux avantages de toute nature versés à chaque mandataire social prévues aux trois premiers alinéas de l'article L. 225-102-1 qui ne sont pas exactes ou qui ne sont pas sincères ;
# des incohérences manifestes dans les autres informations ;
# l'omission d'informations prévues par les textes légaux et réglementaires ou par les statuts,
il les porte à la connaissance de l'organe collégial chargé de l'administration ou de l'organe chargé de la direction et de l'organe de surveillance, ainsi que, le cas échéant, du comité spécialisé agissant sous la responsabilité exclusive et collective de ces organes, dans le cadre des obligations prévues par l'article L. 823-16.
18.A défaut de modifications par l'organe compétent, le commissaire aux comptes apprécie si les inexactitudes relevées sont susceptibles d'influencer le jugement des utilisateurs des comptes sur l'entité ou sur son fonctionnement, ou leur prise de décision. Si tel est le cas, il rend compte de ses travaux en appliquant les dispositions des paragraphes 21 et 22 de la norme relative au rapport du commissaire aux comptes sur les comptes annuels et consolidés. Les conclusions sont exprimées dans la troisième partie du rapport, sous forme d'observation ou d'absence d'observation. En outre, dans la troisième partie de son rapport, il atteste spécialement l'exactitude et la sincérité des informations relatives aux rémunérations et aux avantages de toute nature versés à chaque mandataire social, fournies en application des dispositions du code de commerce.
19. Les motifs conduisant à la formulation de réserves dans la première partie du rapport sur les comptes, ou à un refus de certification desdits comptes, ont dans la plupart des cas une incidence sur la sincérité des informations sur la situation financière et les comptes. Le cas échéant, le commissaire aux comptes en fait mention dans la troisième partie de son rapport sur les comptes annuels ou de son rapport sur les comptes consolidés, sous forme d'observation.
20. Lorsque des informations prévues par les textes légaux et réglementaires ou par les statuts sont omises, le commissaire aux comptes signale cette irrégularité dans la troisième partie de son rapport sur les comptes. Il en est de même en l'absence de rapport de gestion ou d'autres documents adressés à l'organe appelé à statuer sur les comptes prévus par les textes légaux ou réglementaires ou par les statuts. ”
Sous-section 4 : Des diligences directement liées à la mission de commissaire aux comptes
Article A823-30
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La norme d'exercice professionnel relative aux attestations entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE AUX ATTESTATIONS ENTRANT DANS LE CADRE DE DILIGENCES DIRECTEMENT LIÉES À LA MISSION DE COMMISSAIRE AUX COMPTES
Introduction
1. Hors les cas prévus expressément par les textes légaux et réglementaires, une entité peut demander au commissaire aux comptes qu'elle a désigné une attestation portant sur des informations particulières. 2. Le commissaire aux comptes peut délivrer cette attestation si, conformément aux dispositions du II de l'article L. 822-11, la prestation effectuée entre dans les diligences directement liées à sa mission telles que définies par les normes d'exercice professionnel et si, en outre, les dispositions du code de déontologie sont respectées. 3. La présente norme a pour objet de définir les conditions dans lesquelles le commissaire aux comptes peut délivrer l'attestation demandée et les travaux qu'il met en œuvre pour ce faire.
Conditions requises
4. Les attestations que le commissaire aux comptes est autorisé à délivrer ne peuvent porter que sur des informations établies par la direction et ayant un lien avec la comptabilité ou avec des données sous-tendant la comptabilité. Ces informations peuvent être chiffrées ou qualitatives ou porter sur des procédures de contrôle interne de l'entité. 5. Lorsque les informations établies par la direction comprennent des prévisions, le commissaire aux comptes ne peut pas se prononcer sur la possibilité de leur réalisation. 6. Le commissaire aux comptes ne peut établir son attestation que si l'entité a élaboré un document qui comporte au moins : # les informations objet de l'attestation ; # le nom et la signature du dirigeant produisant l'information contenue dans le document ; # la date d'établissement du document. 7. Le commissaire aux comptes s'assure : # que la demande d'attestation respecte les conditions requises par la présente norme ; # et que les conditions de son intervention sont compatibles avec les dispositions du code de déontologie de la profession qui interdisent notamment la représentation de l'entité et de ses dirigeants devant toute juridiction ou toute mission d'expertise dans un contentieux dans lequel l'entité ou ses dirigeants seraient impliqués. Pour cela, il se fait préciser, en tant que de besoin, le contexte de la demande. 8. Le commissaire aux comptes s'assure que les conditions de son intervention, notamment les délais pour mettre en œuvre les travaux qu'il estime nécessaires, sont compatibles avec les ressources dont il dispose. 9. Dans tous les cas, le commissaire aux comptes peut refuser l'intervention.
Travaux du commissaire aux comptes
10. Le commissaire aux comptes applique les dispositions de la norme d'exercice professionnel relative à la lettre de mission. Si nécessaire, il établit une nouvelle lettre ou une lettre complémentaire, conformément aux principes de la norme susmentionnée. 11. Le commissaire aux comptes détermine si les travaux réalisés pour les besoins de la certification des comptes lui permettent d'obtenir le niveau d'assurance requis, ce dernier variant selon la nature des informations et l'objet de l'attestation demandée. 12. Si ce n'est pas le cas, il met en œuvre des travaux complémentaires qu'il conçoit en fonction de l'objet de l'attestation. 13. Les travaux complémentaires peuvent consister à : # vérifier la concordance ou la cohérence des informations objet de l'attestation avec la comptabilité, ou des données sous-tendant la comptabilité, ou des données internes à l'entité en lien avec la comptabilité telles que, notamment, la comptabilité analytique ou des états de gestion ; # vérifier la conformité de ces informations, avec notamment : # les dispositions de textes légaux ou réglementaires ; # les dispositions des statuts ; # les stipulations d'un contrat ; # les procédures de contrôle interne de l'entité ; # les décisions de l'organe chargé de
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la direction ; # les principes figurant dans un référentiel ; # apprécier si ces informations sont présentées de manière sincère. 14. Pour réaliser ces travaux, le commissaire aux comptes utilise tout ou partie des techniques de contrôle décrites dans la norme d'exercice professionnel relative au caractère probant des éléments collectés. Il peut notamment estimer nécessaire d'obtenir des déclarations écrites de la direction. 15. Il s'assure qu'il a collecté les éléments suffisants et appropriés, au regard du niveau d'assurance requis, pour étayer la conclusion formulée dans son attestation.
Forme de l'attestation délivrée
16.L'attestation délivrée prend la forme d'un document daté et signé par le commissaire aux comptes, auquel est joint le document établi par la direction de l'entité qui comprend les informations objet de l'attestation. 17.L'attestation comporte : # un titre ; # l'identité du destinataire de l'attestation au sein de l'entité ; # le rappel de la qualité de commissaire aux comptes de l'entité ; # l'identification de l'entité ; # la nature et l'étendue des travaux mis en œuvre ; # toutes remarques utiles permettant au destinataire final de mesurer la portée et les limites de l'attestation délivrée ; # une conclusion adaptée aux travaux effectués et au niveau d'assurance obtenu ; # la date ; # l'identification et la signature du commissaire aux comptes. 18. Afin de respecter les règles de secret professionnel, le commissaire aux comptes adresse son attestation à la seule direction de l'entité.
Documentation
19. Le commissaire aux comptes fait figurer dans son dossier les documents qui permettent d'étayer sa conclusion et d'établir que son intervention a été réalisée dans le respect des normes d'exercice professionnel. Pour cela, il applique les principes décrits dans la norme d'exercice professionnel relative à la documentation de l'audit des comptes.
Co-commissariat aux comptes
20. Lorsque l'entité a désigné plusieurs commissaires aux comptes, l'attestation est signée par chaque commissaire aux comptes dès lors qu'elle porte sur des informations financières de l'entité établies conformément aux référentiels comptables appliqués pour répondre à ses obligations légales ou réglementaires françaises d'établissement des comptes, et que ces informations : # ont été arrêtées par l'organe compétent ; # ou sont destinées à être communiquées au public. Dans les autres cas, l'attestation peut être signée par l'un des commissaires aux comptes. 21. Il appartient au commissaire aux comptes qui établit l'attestation : # d'informer préalablement les autres commissaires aux comptes de la nature et de l'objet de l'attestation ; # de leur communiquer une copie de son attestation.
Article A823-31
La norme d'exercice professionnel relative à l'audit entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE À L'AUDIT ENTRANT DANS LE CADRE DE DILIGENCES DIRECTEMENT LIÉES À LA MISSION DE COMMISSAIRE AUX COMPTES
Introduction
1. Le commissaire aux comptes d'une entité peut être amené à réaliser, à la demande de cette dernière, des travaux en vue de délivrer des rapports pour répondre à des besoins spécifiques. 2. Le
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commissaire aux comptes peut effectuer les travaux si, conformément aux dispositions du II de l'article L. 822-11, la prestation effectuée entre dans les diligences directement liées à sa mission telles que définies par les normes d'exercice professionnel, et si, en outre, les dispositions du code de déontologie sont respectées. 3.L'entité, en dehors de ses obligations légales, peut avoir besoin de produire des informations financières ayant fait l'objet d'un contrôle externe, afin de renforcer la sécurité financière pour l'utilisateur et la crédibilité de ces dernières. Elle demande un rapport d'audit lorsqu'elle a besoin d'un rapport dans lequel l'auditeur formule une opinion à l'issue de diligences lui ayant permis d'obtenir l'assurance élevée, mais non absolue du fait des limites inhérentes à l'audit, qualifiée par convention d'assurance raisonnable, que les informations financières ne comportent pas d'anomalies significatives. 4. La présente norme a pour objet de définir : # les conditions sous lesquelles le commissaire aux comptes est autorisé à réaliser l'audit demandé ; # les travaux qu'il met en œuvre pour ce faire ; # et la forme du rapport délivré à l'issue de cet audit.
Conditions requises
5. Le rapport d'audit que le commissaire aux comptes est autorisé à délivrer ne peut porter que sur des informations financières établies par la direction de l'entité concernée et, si elles sont destinées à être adressées à l'organe délibérant de cette entité, arrêtées par l'organe compétent.
Informations financières sur lesquelles peut porter un rapport d'audit
6. Les informations financières sur lesquelles le commissaire aux comptes est autorisé à émettre un rapport d'audit sont relatives : # à l'entité ; # ou à une entité contrôlée par celle-ci ou à une entité qui la contrôle, au sens des I et II de l'article L. 233-3. 7. Ces informations financières sont des comptes, des états comptables ou des éléments des comptes, tels que définis dans les paragraphes qui suivent. 8. Les comptes, qui comprennent un bilan, un compte de résultat, une annexe et éventuellement un tableau des flux de trésorerie, sont : # des comptes d'une seule entité ; # ou des comptes consolidés ou combinés ; # ou des comptes établis selon un périmètre d'activité défini pour des besoins spécifiques. 9. Ils concernent : # un exercice complet ; # ou une autre période définie. 10. Ils sont établis : # selon le référentiel comptable appliqué pour les comptes annuels de l'entité ou pour les comptes consolidés du groupe ; # ou selon un référentiel comptable reconnu autre que celui appliqué pour les comptes annuels de l'entité ou pour les comptes consolidés du groupe ; # ou selon des critères convenus et décrits dans des notes explicatives annexées. 11. Les états comptables sont établis à partir des informations provenant de la comptabilité ou des comptes de l'entité mais ne constituent pas des comptes. Ils comprennent dans tous les cas des notes explicatives décrivant notamment les principes d'élaboration retenus. Ainsi, par exemple, un bilan, un compte de résultat, une liasse fiscale, une liasse de consolidation ou un tableau des flux de trésorerie, accompagnés de notes explicatives, peuvent constituer des états comptables. Ils peuvent être établis selon les périmètres, les périodes et les référentiels définis ci-dessus. 12. Les éléments de comptes sont constitués par des soldes de comptes, des catégories d'opérations, ou un détail de ces derniers, ou des informations fournies dans l'annexe des comptes, accompagnés de notes explicatives décrivant notamment les principes d'élaboration retenus. Ainsi, par exemple, une balance auxiliaire, une balance âgée ou un état des stocks accompagnés de notes explicatives peuvent constituer des éléments des comptes. Ils peuvent être établis selon les périmètres, les périodes et les référentiels définis ci-dessus. 13. Lorsque l'audit demandé porte sur des éléments des comptes, le commissaire aux comptes ne peut le réaliser que si les comptes auxquels ils se rapportent ont fait l'objet d'un audit.
Contexte de la demande
14. Le commissaire aux comptes se fait préciser le contexte de la demande pour s'assurer : # que l'audit demandé respecte les conditions requises par la présente norme ; # et que les conditions de son intervention et l'utilisation prévue du rapport d'audit sont compatibles avec les dispositions du
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
code de déontologie de la profession. 15. Le commissaire aux comptes s'assure que les conditions de son intervention, notamment les délais pour mettre en œuvre les travaux d'audit, sont compatibles avec les ressources dont il dispose. 16. Dans tous les cas, le commissaire aux comptes peut refuser l'intervention.
Travaux du commissaire aux comptes
17. Le commissaire aux comptes applique les dispositions de la norme d'exercice professionnel relative à la lettre de mission pour définir les termes et conditions de cette intervention. Si nécessaire, il établit une nouvelle lettre ou une lettre complémentaire, conformément aux principes de la norme susmentionnée. 18. Le commissaire aux comptes réalise les travaux d'audit en respectant toutes les normes d'exercice professionnel relatives à l'audit des comptes réalisé pour les besoins de la certification des comptes, à l'exception des normes relatives aux rapports sur les comptes annuels et consolidés et à la justification des appréciations. 19. Lorsque l'audit demandé porte sur des états comptables ou des éléments de comptes, le commissaire aux comptes applique ces normes au contenu des états ou éléments concernés. Ainsi, par exemple, pour évaluer le risque d'anomalies significatives, déterminer les travaux d'audit à mettre en œuvre et évaluer l'incidence sur son opinion des anomalies détectées et non corrigées, il détermine un seuil de signification, non pas au niveau des comptes pris dans leur ensemble, mais en fonction du montant au-delà duquel le jugement de l'utilisateur des informations financières sur lesquelles porte l'audit est susceptible d'être influencé. 20. Le commissaire aux comptes utilise sa connaissance de l'entité concernée et de son environnement et les travaux qu'il a déjà réalisés pour les besoins de la certification des comptes, et met en œuvre les travaux complémentaires qu'il estime nécessaires pour obtenir l'assurance raisonnable que les informations financières, prises dans leur ensemble, ne comportent pas d'anomalies significatives. 21. Lorsque l'entité demande au commissaire aux comptes un rapport d'audit sur des éléments des comptes qui sont établis à une date postérieure aux derniers comptes ayant fait l'objet d'un audit, le commissaire aux comptes met en œuvre des travaux sur ces éléments et les autres éléments des comptes en relation avec ceux-ci pour la période non couverte par les derniers comptes ayant fait l'objet d'un audit. 22. Le commissaire aux comptes s'assure que les informations fournies dans l'annexe des comptes ou dans les notes explicatives des états comptables ou des éléments de comptes permettent aux utilisateurs d'en comprendre la portée et d'éviter toute confusion avec les comptes annuels ou consolidés de l'entité faisant l'objet de la certification du commissaire aux comptes en application de l'article L. 823-9 du code de commerce.
Formulation de l'opinion
23. A l'issue de son audit, le commissaire aux comptes formule son opinion selon le référentiel comptable ou les critères convenus au regard desquels les informations financières ont été établies. 24. Lorsque l'audit porte sur des comptes établis selon un référentiel conçu pour donner une image fidèle telle que les référentiels comptables applicables en France, le commissaire aux comptes déclare qu'à son avis ces comptes présentent, ou non, sincèrement, dans tous leurs aspects significatifs, le patrimoine, la situation financière, le résultat des opérations de l'entité ou du groupe ou du périmètre défini, au regard du référentiel indiqué. 25. Dans les autres cas, et notamment lorsque l'audit porte sur des états comptables ou des éléments de comptes, il déclare qu'à son avis les informations financières ont été établies, ou non, dans tous leurs aspects significatifs, conformément au référentiel indiqué ou aux critères définis. 26. Dans tous les cas, le commissaire aux comptes formule : # une opinion favorable sans réserve ; # ou une opinion favorable avec réserve ; # ou une opinion défavorable ; # ou une impossibilité de formuler une opinion.
Opinion favorable sans réserve
27. Le commissaire aux comptes formule une opinion favorable sans réserve lorsque l'audit des informations financières qu'il a mis en œuvre lui a permis d'obtenir l'assurance raisonnable que celles-ci, prises dans leur ensemble, ne comportent pas d'anomalies significatives.
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Opinion favorable avec réserve
28. Le commissaire aux comptes formule une opinion favorable avec réserve pour désaccord : # lorsqu'il a identifié au cours de son audit des anomalies significatives et que celles-ci n'ont pas été corrigées ; # que les incidences sur les informations financières des anomalies significatives sont clairement circonscrites ; # et que la formulation de la réserve est suffisante pour permettre à l'utilisateur des informations financières de fonder son jugement en connaissance de cause. Le commissaire aux comptes précise dans ce cas les motifs de la réserve pour désaccord. Il quantifie au mieux les incidences des anomalies significatives identifiées et non corrigées ou indique les raisons pour lesquelles il ne peut les quantifier. 29. Le commissaire aux comptes formule une opinion favorable avec réserve pour limitation : # lorsqu'il n'a pas pu mettre en œuvre toutes les procédures d'audit nécessaires pour fonder son opinion ; # que les incidences sur les informations financières des limitations à ses travaux sont clairement circonscrites ; # et que la formulation de la réserve est suffisante pour permettre à l'utilisateur des informations financières de fonder son jugement en connaissance de cause.
Opinion défavorable
30. Le commissaire aux comptes formule une opinion défavorable : # lorsqu'il a détecté au cours de son audit des anomalies significatives et que celles-ci n'ont pas été corrigées, et que : # soit les incidences sur les informations financières des anomalies significatives ne peuvent pas être clairement circonscrites ; # soit la formulation d'une réserve n'est pas suffisante pour permettre à l'utilisateur des informations financières de fonder son jugement en connaissance de cause. 31. Le commissaire aux comptes précise les motifs de l'opinion défavorable. Il quantifie, lorsque cela est possible, les incidences sur les informations financières des anomalies significatives identifiées et non corrigées.
Impossibilité de formuler une opinion
32. Le commissaire aux comptes exprime son impossibilité de formuler une opinion : # lorsqu'il n'a pas pu mettre en œuvre toutes les procédures d'audit nécessaires pour fonder son opinion, et que : # soit les incidences sur les informations financières des limitations à ses travaux ne peuvent être clairement circonscrites ; # soit la formulation d'une réserve n'est pas suffisante pour permettre à l'utilisateur des informations financières de fonder son jugement en connaissance de cause. 33. Le commissaire aux comptes exprime également une impossibilité de formuler une opinion lorsqu'il existe de multiples incertitudes dont les incidences sur les informations financières ne peuvent être clairement circonscrites.
Observations
34. Lorsqu'il émet une opinion favorable sans réserve ou avec réserve, le commissaire aux comptes formule, s'il y a lieu, toutes observations utiles. 35. En formulant une observation, le commissaire aux comptes attire l'attention sur une information fournie dans l'annexe ou dans les notes explicatives. Il ne peut pas dispenser d'informations dont la diffusion relève de la responsabilité des dirigeants. 36. Les observations sont formulées dans un paragraphe distinct, inséré après l'opinion. 37. Le commissaire aux comptes formule systématiquement une observation en cas d'incertitude sur la continuité de l'exploitation.
Forme du rapport délivré
38. Le commissaire aux comptes établit un rapport qui comporte les informations suivantes : # un titre qui indique qu'il s'agit d'un rapport d'audit ; # l'identité du destinataire du rapport au sein de l'entité ou l'indication de l'organe auquel le rapport est destiné ; # le rappel de la qualité de
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
commissaire aux comptes ; # l'identification de l'entité concernée ; # la nature des informations financières qui font l'objet du rapport et sont jointes à ce dernier ; # la période concernée ; # les rôles respectifs de la direction ou de l'organe compétent de l'entité concernée pour établir les informations financières et du commissaire aux comptes pour formuler une opinion sur celles-ci ; # lorsque les informations financières ne sont pas établies selon un référentiel comptable reconnu, toutes remarques utiles permettant au destinataire final de mesurer la portée et les limites du rapport ; # la nature et l'étendue des travaux mis en œuvre dans le cadre de l'audit ; # l'opinion du commissaire aux comptes ; # le cas échéant, ses observations ; # la date du rapport ; # l'identification et la signature du commissaire aux comptes.
Co-commissariat aux comptes
39. Lorsque l'entité a désigné plusieurs commissaires aux comptes, le rapport d'audit est signé par chaque commissaire aux comptes dès lors qu'il porte sur des informations financières de l'entité établies conformément aux référentiels comptables appliqués pour répondre à ses obligations légales ou réglementaires françaises d'établissement des comptes, et que ces informations : # ont été arrêtées par l'organe compétent ; # ou sont destinées à être communiquées au public. Dans les autres cas, le rapport d'audit peut être signé par l'un des commissaires aux comptes. 40. Il appartient au commissaire aux comptes qui établit seul le rapport : # d'informer préalablement les autres commissaires aux comptes de l'objet du rapport d'audit ; # de leur en communiquer une copie.
Article A823-32
La norme d'exercice professionnel relative à l'examen limité entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE À L'EXAMEN LIMITÉ ENTRANT DANS LE CADRE DE DILIGENCES DIRECTEMENT LIÉES À LA MISSION DE COMMISSAIRE AUX COMPTES
Introduction
1. Le commissaire aux comptes d'une entité peut être amené à réaliser, à la demande de cette dernière, des travaux en vue de réaliser des rapports pour répondre à des besoins spécifiques. 2. Le commissaire aux comptes peut effectuer les travaux si, conformément aux dispositions du II de l'article L. 822-11, la prestation effectuée entre dans les diligences directement liées à sa mission telles que définies par les normes d'exercice professionnel, et si, en outre, les dispositions du code de déontologie sont respectées. 3.L'entité, en dehors de ses obligations légales, peut avoir besoin de produire des informations financières ayant fait l'objet d'un contrôle externe, afin de renforcer la sécurité financière pour l'utilisateur et la crédibilité de ces dernières. Elle demande un rapport d'examen limité lorsqu'elle a besoin d'un rapport dans lequel l'auditeur formule une conclusion à l'issue de diligences lui ayant permis d'obtenir une « assurance modérée », c'est-à-dire une assurance moins élevée que celle obtenue dans le cadre d'un audit des comptes, que les informations financières ne comportent pas d'anomalies significatives. 4. La présente norme a pour objet de définir : # les conditions sous lesquelles le commissaire aux comptes est autorisé à réaliser l'examen limité demandé ; # les travaux qu'il met en œuvre pour ce faire ; # et la forme du rapport délivré à l'issue de cet examen limité.
Conditions requises
5. Le rapport d'examen limité que le commissaire aux comptes est autorisé à délivrer ne peut porter
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que sur des informations financières établies par la direction de l'entité concernée et, si elles sont destinées à être adressées à l'organe délibérant de cette entité, arrêtées par l'organe compétent.
Informations financières sur lesquelles peut porter un rapport d'examen limité
6. Les informations financières sur lesquelles le commissaire aux comptes est autorisé à émettre un rapport d'examen limité sont relatives : # à l'entité ; # ou à une entité contrôlée par celle-ci ou à une entité qui la contrôle, au sens des I et II de l'article L. 233-3. 7. Ces informations financières sont des comptes, des états comptables ou des éléments des comptes, tels que définis dans les paragraphes qui suivent. 8. Les comptes, qui comprennent un bilan, un compte de résultat, une annexe et éventuellement un tableau des flux de trésorerie, sont : # des comptes d'une seule entité ; # ou des comptes consolidés ou combinés ; # ou des comptes établis pour un périmètre d'activité défini pour des besoins spécifiques. 9. Ils concernent : # un exercice complet ; # ou une autre période définie. 10. Ils sont établis : # selon le référentiel comptable appliqué pour les comptes annuels de l'entité ou pour les comptes consolidés du groupe ; # ou selon un référentiel comptable reconnu autre que celui appliqué pour les comptes annuels de l'entité ou pour les comptes consolidés du groupe ; # ou selon des critères convenus et décrits dans des notes explicatives annexées. 11. Les états comptables sont établis à partir des informations provenant de la comptabilité ou des comptes de l'entité, mais ne constituent pas des comptes. Ils comprennent dans tous les cas des notes explicatives décrivant notamment les principes d'élaboration retenus. Ainsi, par exemple, un bilan, un compte de résultat, une liasse fiscale, une liasse de consolidation ou un tableau des flux de trésorerie, accompagnés de notes explicatives, peuvent constituer des états comptables. Ils peuvent être établis selon les périmètres, les périodes et les référentiels définis ci-dessus. 12. Les éléments de comptes sont constitués par des soldes de comptes, des catégories d'opérations, ou un détail de ces derniers, ou des informations fournies dans l'annexe des comptes, accompagnés de notes explicatives décrivant notamment les principes d'élaboration retenus. Ainsi, par exemple, une balance auxiliaire, une balance âgée ou un état des stocks accompagnés de notes explicatives peuvent constituer des éléments de comptes. Ils peuvent être établis selon les périmètres, les périodes et les référentiels définis ci-dessus. 13. Lorsque l'examen limité demandé porte sur des éléments des comptes, le commissaire aux comptes ne peut le réaliser que si les comptes auxquels ils se rapportent ont fait l'objet d'un audit ou d'un examen limité.
Contexte de la demande
14. Le commissaire aux comptes se fait préciser le contexte de la demande pour s'assurer : # que l'examen limité demandé respecte les conditions requises par la présente norme ; # et que les conditions de son intervention et l'utilisation prévue du rapport d'examen limité sont compatibles avec les dispositions du code de déontologie de la profession. 15. Le commissaire aux comptes s'assure que les conditions de son intervention, notamment les délais pour mettre en œuvre les travaux d'examen limité, sont compatibles avec les ressources dont il dispose. 16. Dans tous les cas, le commissaire aux comptes peut refuser l'intervention.
Travaux du commissaire aux comptes
17. Le commissaire aux comptes applique les dispositions de la norme d'exercice professionnel relative à la lettre de mission pour définir les termes et conditions de cette intervention. Si nécessaire, il établit une nouvelle lettre ou une lettre complémentaire, conformément aux principes de la norme susmentionnée. 18. Le commissaire aux comptes réalise les travaux d'examen limité en respectant les dispositions de la norme d'exercice professionnel relative à l'examen limité de comptes intermédiaires en application de dispositions légales ou réglementaires, à l'exception des dispositions relatives à la forme du rapport et aux conclusions formulées par le commissaire aux comptes. 19. Lorsque l'examen limité demandé porte sur des états comptables ou des éléments de comptes, le commissaire aux comptes applique cette norme au contenu des états ou éléments concernés. Ainsi, par exemple, pour évaluer le risque d'anomalies significatives, déterminer les
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
travaux d'examen limité à mettre en œuvre et évaluer l'incidence sur sa conclusion des anomalies détectées et non corrigées, il détermine un seuil de signification, non pas au niveau des comptes pris dans leur ensemble, mais en fonction du montant au-delà duquel le jugement de l'utilisateur des informations financières sur lesquelles porte l'examen limité est susceptible d'être influencé. 20. Le commissaire aux comptes utilise sa connaissance de l'entité concernée et de son environnement et les travaux qu'il a déjà réalisés pour les besoins de la certification des comptes, et met en œuvre les travaux complémentaires qu'il estime nécessaires pour obtenir l'assurance modérée que les informations financières, prises dans leur ensemble, ne comportent pas d'anomalies significatives. 21. Lorsque l'entité demande au commissaire aux comptes un rapport d'examen limité sur des éléments des comptes qui sont établis à une date postérieure aux derniers comptes ayant fait l'objet d'un audit ou d'un examen limité, le commissaire aux comptes met en œuvre des travaux sur ces éléments et les autres éléments des comptes en relation avec ceux-ci pour la période non couverte par les derniers comptes ayant fait l'objet d'un audit ou d'un examen limité. 22. Le commissaire aux comptes s'assure que les informations fournies dans l'annexe des comptes ou dans les notes explicatives des états comptables ou des éléments de comptes permettent aux utilisateurs d'en comprendre la portée et d'éviter toute confusion avec : # les comptes annuels ou consolidés de l'entité faisant l'objet de la certification du commissaire aux comptes en application de l'article L. 823-9 ; # les comptes intermédiaires dont l'examen limité par le commissaire aux comptes est réalisé en application de dispositions légales ou réglementaires.
Formulation de la conclusion
23.A l'issue de son examen limité, le commissaire aux comptes formule sa conclusion selon le référentiel comptable ou les critères convenus au regard desquels les informations financières ont été établies. 24. Lorsque l'examen limité porte sur des comptes établis selon un référentiel conçu pour donner une image fidèle tel que les référentiels comptables applicables en France, le commissaire aux comptes déclare qu'à l'issue de son examen limité, il n'a pas relevé d'anomalies significatives de nature à remettre en cause le fait que les comptes présentent sincèrement le patrimoine, la situation financière ou le résultat des opérations, de l'entité, du groupe ou du périmètre défini, au regard du référentiel indiqué. 25. Dans les autres cas, il déclare qu'à l'issue de son examen limité, il n'a pas relevé d'anomalies significatives de nature à remettre en cause la conformité des informations financières au référentiel indiqué ou aux critères définis. 26. Dans tous les cas, le commissaire aux comptes formule : # une conclusion sans réserve ; # ou une conclusion avec réserve ; # ou une conclusion défavorable ; # ou une impossibilité de conclure.
Conclusion sans réserve
27. Le commissaire aux comptes formule une conclusion sans réserve lorsque l'examen limité des informations financières qu'il a mis en œuvre lui a permis d'obtenir l'assurance modérée que celles-ci, prises dans leur ensemble, ne comportent pas d'anomalies significatives.
Conclusion avec réserve
28. Le commissaire aux comptes formule une conclusion avec réserve : # lorsqu'il a identifié au cours de l'examen limité des anomalies significatives et que celles-ci n'ont pas été corrigées ; # ou lorsqu'il n'a pas pu mettre en œuvre toutes les procédures nécessaires pour fonder sa conclusion ; et que : # les incidences sur les informations financières des anomalies significatives ou des limitations à ses travaux sont clairement circonscrites ; # la formulation de la réserve est suffisante pour permettre à l'utilisateur des informations financières de fonder son jugement en connaissance de cause.
Conclusion défavorable
29. Le commissaire aux comptes formule une conclusion défavorable : # lorsqu'il a détecté au cours
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
de l'examen limité des anomalies significatives et que celles-ci n'ont pas été corrigées ; et que : # les incidences sur les informations financières des anomalies significatives ne peuvent être clairement circonscrites, ou la formulation d'une réserve n'est pas suffisante pour permettre à l'utilisateur des informations financières de fonder son jugement en connaissance de cause.
Impossibilité de conclure
30. Le commissaire aux comptes formule une impossibilité de conclure : # lorsqu'il n'a pas pu mettre en œuvre toutes les procédures nécessaires pour fonder sa conclusion ; et que : # les incidences sur les informations financières des limitations à ses travaux ne peuvent être clairement circonscrites ; # ou la formulation d'une réserve n'est pas suffisante pour permettre à l'utilisateur des informations financières de fonder son jugement en connaissance de cause. 31. Le commissaire aux comptes formule également une impossibilité de conclure lorsqu'il existe de multiples incertitudes dont les incidences sur les informations financières ne peuvent être clairement circonscrites.
Observations
32. Lorsqu'il émet une conclusion sans réserve ou avec réserve, le commissaire aux comptes formule, s'il y a lieu, toutes observations utiles. 33. En formulant une observation, le commissaire aux comptes attire l'attention sur une information fournie dans l'annexe ou les notes explicatives. Il ne peut pas dispenser d'informations dont la diffusion relève de la responsabilité des dirigeants. 34. Les observations sont formulées dans un paragraphe distinct inséré après la conclusion. 35. Le commissaire aux comptes formule systématiquement une observation en cas d'incertitude sur la continuité de l'exploitation.
Forme du rapport délivré
36. Le commissaire aux comptes établit un rapport qui comporte les informations suivantes : # un titre qui indique qu'il s'agit d'un rapport d'examen limité ; # l'identité du destinataire du rapport au sein de l'entité ou l'indication de l'organe auquel le rapport est destiné ; # le rappel de la qualité de commissaire aux comptes ; # l'identification de l'entité concernée ; # la nature des informations financières qui font l'objet du rapport et sont jointes à ce dernier ; # la période concernée ; # les rôles respectifs de la direction ou de l'organe compétent de l'entité concernée pour établir les informations financières et du commissaire aux comptes pour formuler une conclusion sur celles-ci ; # lorsque les informations financières ne sont pas établies selon un référentiel comptable reconnu, toutes remarques utiles permettant au destinataire final de mesurer la portée et les limites du rapport ; # la nature et l'étendue des travaux mis en œuvre dans le cadre de l'examen limité ; # la conclusion du commissaire aux comptes ; # le cas échéant, ses observations ; # la date du rapport ; # l'identification et la signature du commissaire aux comptes.
Co-commissariat aux comptes
37. Lorsque l'entité a désigné plusieurs commissaires aux comptes, le rapport d'examen limité est signé par chaque commissaire aux comptes dès lors qu'il porte sur des informations financières de l'entité établies conformément aux référentiels comptables appliqués pour répondre à ses obligations légales ou réglementaires françaises d'établissement des comptes, et que ces informations : # ont été arrêtées par l'organe compétent ; # ou sont destinées à être communiquées au public. Dans les autres cas, le rapport d'examen limité peut être signé par l'un des commissaires aux comptes. 38. Il appartient au commissaire aux comptes qui établit seul le rapport : # d'informer préalablement les autres commissaires aux comptes de l'objet du rapport d'examen limité ; # de leur en communiquer une copie.
Article A823-33
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
La norme d'exercice professionnel relative aux consultations entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE AUX CONSULTATIONS ENTRANT DANS LE CADRE DE DILIGENCES DIRECTEMENT LIÉES À LA MISSION DE COMMISSAIRE AUX COMPTES
Introduction
1. Avant l'arrêté des comptes, le commissaire aux comptes d'une entité peut être amené à délivrer, à la demande de cette dernière, des consultations sur des sujets en lien avec les comptes. 2. Le commissaire aux comptes peut délivrer des consultations si, conformément aux dispositions de l'article L. 822-11-II du code de commerce, la prestation entre dans les diligences directement liées à sa mission telles que définies par la présente norme d'exercice professionnel et si, en outre, les dispositions du code de déontologie sont respectées, notamment celles visées à l'article 10 dudit code qui interdisent au commissaire aux comptes : # de se mettre dans la position d'avoir à se prononcer, dans sa mission de certification, sur des documents, des évaluations ou des prises de position qu'il aurait contribué à élaborer ; # et de prendre en charge, même partiellement, une prestation d'externalisation. 3. La consultation permet de donner un avis ou de fournir des éléments d'information. Elle nécessite la mise en œuvre de travaux non requis pour la mission de certification. Les avis peuvent être assortis de recommandations qui contribuent à l'amélioration des traitements comptables et de l'information financière. 4. La présente norme a pour objet de définir les conditions dans lesquelles le commissaire aux comptes peut réaliser la consultation demandée, les travaux qu'il met en œuvre pour ce faire et la forme sous laquelle celle-ci sera communiquée à l'entité.
Conditions requises
5. Le commissaire aux comptes intervient à la demande de l'entité, à partir des éléments d'information que celle-ci lui communique et dans le contexte particulier qui lui est présenté. 6. La consultation porte sur les comptes ou l'information financière. Elle a pour objet : # de donner un avis sur un projet de traduction comptable proposé par l'entité, au regard d'un référentiel comptable donné, pour une opération réalisée ou envisagée ; # ou de donner un avis sur les conséquences d'une opération en matière d'informations financières ou comptable en fonction des différentes modalités de réalisation envisagées et décrites par l'entité au regard de textes, projets de texte ou pratiques ; # ou de donner un avis quant à la conformité aux textes comptables applicables d'un manuel de principes ou de procédures comptables, d'un plan de comptes ou d'un format de liasse de consolidation, établis par l'entité, y compris à l'état de projet ; # ou de donner un avis sur la démarche définie par l'entité pour mettre en œuvre un référentiel comptable ou pour procéder à l'identification des divergences entre les normes appliquées par l'entité ou le groupe et de nouvelles normes applicables. Cette intervention ne peut consister à participer à la rédaction de procédures ou à l'établissement de données ou de documents, ou à leur mise en place ; # ou de fournir des éléments d'information concernant des textes, des projets de texte, des pratiques ou des interprétations, applicables à une situation ou un contexte particulier, contribuant à la bonne compréhension par l'entité des règles, méthodes et principes ou de ses obligations ; # ou d'informer les responsables concernés au sein de l'entité, notamment les responsables comptables et financiers, sur les conséquences générales ou les difficultés d'application d'un référentiel, d'un texte, d'un projet de texte ou de pratiques. 7. La consultation peut concerner l'entité elle-même, une entité qui la contrôle ou une entité qui est contrôlée par elle au sens des I et II de l'article L. 233-3 du code de commerce. 8. Le commissaire aux comptes s'assure que l'entité a réalisé une analyse préalable de l'opération dans son contexte. 9. La consultation ne comporte pas d'appréciation sur l'opportunité de
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
l'opération objet de la consultation ou sur son montage juridique, fiscal et financier. 10. Le commissaire aux comptes se fait préciser le contexte de la demande pour s'assurer : # que le sujet de la consultation respecte les conditions requises par la présente norme ; # et que les conditions de son intervention et l'utilisation prévue de sa consultation sont compatibles avec les dispositions du code de déontologie de la profession. 11. Le commissaire aux comptes s'assure que les conditions de son intervention, notamment les délais pour mettre en œuvre les travaux qu'il estime nécessaires, sont compatibles avec les ressources dont il dispose. 12. Dans tous les cas, le commissaire aux comptes peut refuser l'intervention.
Travaux du commissaire aux comptes
13. Le commissaire aux comptes applique les dispositions de la norme d'exercice professionnel relative à la lettre de mission. Si nécessaire, il établit une nouvelle lettre ou une lettre complémentaire, conformément aux principes de la norme susmentionnée. 14. Le commissaire aux comptes examine les éléments d'information communiqués par l'entité au regard du contexte particulier qui lui est présenté. Il réalise ses travaux à partir de ces éléments, des textes légaux et réglementaires, des positions de doctrine et des pratiques dont il a connaissance. 15. Le commissaire aux comptes demande à l'entité de lui communiquer les consultations éventuellement établies sur le sujet par d'autres intervenants.
Forme de la consultation
16. La consultation du commissaire aux comptes est formalisée dans un document daté et signé. 17. Le commissaire aux comptes établit un document qui comporte : # un titre précisant qu'il s'agit d'une consultation ; # l'identité du destinataire de la consultation au sein de l'entité ; # le rappel de sa qualité de commissaire aux comptes ; # l'identification de l'entité concernée ; # l'exposé du contexte (question posée, éléments d'information communiqués et limitation du domaine couvert) ; # un rappel des rôles respectifs de l'entité et du commissaire aux comptes, précisant notamment qu'il n'appartient pas au commissaire aux comptes de participer à la décision de procéder ou non à l'opération envisagée ou de choisir le traitement comptable, qui relève de l'entité ; # le corps de la consultation incluant, selon le cas : # son analyse de la situation et des faits, avec, le cas échéant, les références aux textes légaux et réglementaires ou à la doctrine, ainsi qu'une synthèse, son avis ou ses recommandations éventuelles ; # les éléments d'information sur les textes qui font l'objet de la demande de l'entité ; # toutes remarques utiles permettant au destinataire de mesurer la portée et les limites de la consultation, précisant notamment que celle-ci vise seulement le cas d'espèce et le contexte décrits et qu'elle a été établie sur la base des textes, projets de texte ou pratiques existant à la date de son établissement ; # la date du document ; # l'identification et la signature du commissaire aux comptes.
Documentation
18. Le commissaire aux comptes fait figurer dans son dossier la consultation, les documents obtenus de l'entité et les autres éléments sur lesquels il a fondé sa consultation.
Co-commissariat aux comptes
19. Lorsque l'entité a désigné plusieurs commissaires aux comptes, l'intervention peut être demandée à un seul commissaire aux comptes. 20. Il appartient alors au commissaire aux comptes qui réalise l'intervention : # d'informer préalablement les autres commissaires aux comptes de la nature et de l'objet de l'intervention ; # de leur communiquer une copie de la consultation.
Article A823-34
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
La norme d'exercice professionnel relative aux constats à l'issue de procédures convenues avec l'entité entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
NORME D'EXERCICE PROFESSIONNEL RELATIVE AUX CONSTATS À L'ISSUE DE PROCÉDURES CONVENUES AVEC L'ENTITÉ ENTRANT DANS LE CADRE DE DILIGENCES DIRECTEMENT LIÉES À LA MISSION DE COMMISSAIRE AUX COMPTES
Introduction
1.L'entité, en dehors de toute obligation légale, peut avoir besoin de constats résultant de procédures de contrôle spécifiques mises en œuvre sur des sujets déterminés en lien avec les comptes. Elle peut demander à son commissaire aux comptes de mettre en œuvre ces procédures de contrôle. Ces procédures, définies en accord entre l'entité et le commissaire aux comptes, sont dénommées procédures convenues et donnent lieu à l'établissement d'un rapport. 2.L'entité demande la réalisation de procédures convenues lorsqu'elle-même, ou un tiers identifié par elle, souhaite tirer ses propres conclusions à partir des constats qui lui sont rapportés. Les procédures convenues ne conduisent pas à une opinion d'audit, à une conclusion d'examen limité ou à une attestation du commissaire aux comptes. Le rapport présentant les constats qui résultent de la mise en œuvre des procédures convenues n'est pas destiné à être rendu public par l'entité. 3. Le commissaire aux comptes peut mettre en œuvre des procédures convenues si, conformément aux dispositions de l'article L. 822-11-II du code de commerce, la prestation effectuée entre dans les diligences directement liées à sa mission telles que définies par la présente norme d'exercice professionnel et si, en outre, les dispositions du code de déontologie, notamment celles rappelées au paragraphe 09 ci-après, sont respectées. 4. La présente norme a pour objet de définir les conditions dans lesquelles le commissaire aux comptes peut mettre en œuvre des procédures convenues, les travaux qu'il réalise et la formulation des constats qui en découlent.
Conditions requises
5. Les constats sont réalisés à la demande de l'entité. 6. Les procédures convenues sont mises en œuvre en utilisant tout ou partie des techniques de contrôle décrites dans la norme d'exercice professionnel relative au caractère probant des éléments collectés. 7. Les procédures convenues ne peuvent porter que sur : # des comptes, des états comptables ou des éléments des comptes de l'entité, selon les définitions qu'en donne la norme d'exercice professionnel relative à l'audit entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes ; # des informations, des données ou des documents de l'entité ayant un lien avec la comptabilité ou avec les données sous-tendant la comptabilité ; # des éléments du contrôle interne de l'entité relatifs à l'élaboration et au traitement de l'information comptable et financière. 8. Le commissaire aux comptes peut réaliser des constats résultant de procédures convenues relatifs à l'entité elle-même, à une entité qui la contrôle ou à une entité qui est contrôlée par elle au sens des I et II de l'article L. 233-3 du code de commerce. 9. Le commissaire aux comptes se fait préciser le contexte de la demande pour s'assurer : # que l'intervention demandée respecte les conditions requises par la présente norme ; # et que les conditions de son intervention et l'utilisation prévue de son rapport sont compatibles avec les dispositions du code de déontologie de la profession qui interdisent, notamment, la représentation de l'entité et de ses dirigeants devant toute juridiction, la mise en œuvre de toute mission d'expertise dans un contentieux dans lequel l'entité ou ses dirigeants seraient impliqués et la prise en charge même partielle d'une prestation d'externalisation. 10. Le commissaire aux comptes s'assure que les conditions de son intervention, notamment les délais pour mettre en œuvre les procédures, sont compatibles avec les ressources dont il dispose. 11. Dans tous les cas, le commissaire aux comptes peut refuser l'intervention.
Travaux du commissaire aux comptes
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
12. Le commissaire aux comptes convient avec l'entité : # des informations, données, documents ou éléments du contrôle interne sur lesquels portent les procédures à mettre en œuvre ; # de la nature, de l'étendue et du calendrier des procédures à mettre en œuvre ; # des modalités de restitution des travaux et des constats qui en résultent ; # des conditions restrictives de diffusion du rapport. Il peut conditionner son intervention à l'obtention de déclarations écrites de la direction. 13. Le commissaire aux comptes applique les dispositions de la norme d'exercice professionnel relative à la lettre de mission. Si nécessaire, il établit une nouvelle lettre ou une lettre complémentaire, conformément aux principes de la norme susmentionnée, qui comporte les éléments décrits au paragraphe 12 de la présente norme. 14. Le commissaire aux comptes met en œuvre les procédures convenues avec l'entité et relate les constats qui en résultent dans un rapport.
Forme du rapport
15. Le commissaire aux comptes, qui n'a pas défini lui-même les procédures à mettre en œuvre et ne peut pas connaître les conclusions qui pourraient être tirées de ses constats, précise clairement dans son rapport la portée et les limites de son intervention afin que les constats relatés dans son rapport ne puissent pas donner lieu à une interprétation inappropriée. 16. Le rapport comporte : # un titre précisant qu'il s'agit d'un rapport de constats résultant de procédures convenues ; # l'identité du destinataire du rapport au sein de l'entité ou l'indication de l'organe auquel le rapport est destiné ; # le rappel de la qualité de commissaire aux comptes ; # l'identification de l'entité concernée ; # un exposé sommaire du contexte de l'intervention ; # l'identification des informations, données, documents ou éléments du contrôle interne de l'entité sur lesquels portent les procédures convenues ; # la description des procédures mises en œuvre et la mention que celles-ci correspondent aux procédures convenues avec l'entité et ne constituent ni un audit ni un examen limité ; # la formulation des résultats sous forme de constats ; # toutes remarques utiles permettant au destinataire final de mesurer la portée et les limites du rapport émis ; # la date du rapport ; # l'identification et la signature du commissaire aux comptes.
Documentation
17. Le commissaire aux comptes fait figurer dans son dossier les éléments qui : # permettent d'établir que l'intervention a été réalisée dans le respect de la présente norme d'exercice professionnel ; # permettent, conformément aux principes de la norme d'exercice professionnel relative à la documentation de l'audit des comptes, à toute personne ayant une expérience de la pratique de l'audit et n'ayant pas participé à l'intervention d'être en mesure de comprendre la nature et l'étendue des procédures mises en œuvre ainsi que les constats qui en résultent. 18. Le commissaire aux comptes applique les dispositions des paragraphes 6 à 8 de la norme d'exercice professionnel relative à la documentation de l'audit des comptes.
Co-commissariat aux comptes
19. Lorsque l'entité a désigné plusieurs commissaires aux comptes, l'intervention peut être demandée à un seul commissaire aux comptes. 20. Il appartient alors au commissaire aux comptes qui réalise l'intervention : # d'informer préalablement les autres commissaires aux comptes de la nature et de l'objet de l'intervention ; # de leur communiquer une copie du rapport.
Article A823-35
La norme d'exercice professionnel relative aux prestations entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes rendues lors de l'acquisition d'entités, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous :
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
NORME D'EXERCICE PROFESSIONNEL RELATIVE AUX PRESTATIONS ENTRANT DANS LE CADRE DE DILIGENCES DIRECTEMENT LIÉES À LA MISSION DE COMMISSAIRE AUX COMPTES RENDUES LORS DE L'ACQUISITION D'ENTITÉS
Introduction
1. Une entité, lorsqu'elle a engagé un processus d'acquisition d'une autre entité, peut avoir besoin de travaux spécifiques portant sur des informations fournies par cette dernière. Elle peut demander à son commissaire aux comptes de réaliser ces travaux, qualifiés de diligences d'acquisition. 2. Pour les besoins de la présente norme, l'entité dont l'acquisition est envisagée est dénommée cible. La cible peut désigner une ou plusieurs entreprises, ou une ou plusieurs branches d'entreprises.L'acquisition peut porter sur tout ou partie des titres de la cible. Elle peut correspondre à une prise de participation complémentaire. 3. Le commissaire aux comptes peut effectuer les travaux demandés si, conformément aux dispositions de l'article L. 822-11-II du code de commerce, la prestation effectuée entre dans les diligences directement liées à sa mission telles que définies par la présente norme d'exercice professionnel et si, en outre, les dispositions du code de déontologie sont respectées. 4. La présente norme a pour objet de définir les conditions dans lesquelles le commissaire aux comptes est autorisé à intervenir dans une cible, les travaux qu'il met en œuvre et la forme des rapports qu'il délivre.
Conditions requises
5. Sous réserve de l'accord de la cible, le commissaire aux comptes est autorisé à réaliser à la demande de l'entité, sur les comptes et l'information financière de la cible ou sur les données qui les sous-tendent : # des constats à l'issue de procédures convenues ; # des consultations ; # un audit au sens de la norme relative à l'audit entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes ou un examen limité au sens de la norme relative à l'examen limité entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes. 6. Les travaux du commissaire aux comptes sont effectués en mettant en œuvre tout ou partie des techniques de contrôle décrites dans la norme d'exercice professionnel relative au caractère probant des éléments collectés. 7. Les constats à l'issue de procédures convenues qui peuvent être réalisés dans un contexte d'acquisition portent : # sur des comptes, états comptables ou éléments des comptes de la cible, selon les définitions qu'en donne la norme d'exercice professionnel relative à l'audit entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes ; # sur des informations, données ou documents fournis par la cible ayant un lien avec la comptabilité, ou les données sous-tendant celle-ci ; # sur des éléments du contrôle interne relatifs à l'élaboration et au traitement de l'information comptable et financière de la cible. 8. Les consultations qui peuvent être réalisées dans un contexte d'acquisition ont pour objet : # de donner des avis sur la traduction comptable de situations dans lesquelles se trouve la cible ou d'opérations réalisées par celle-ci ; les avis peuvent notamment porter sur les risques susceptibles de conduire à des anomalies significatives dans les comptes de la cible ou d'avoir une incidence sur son fonctionnement futur, voire sur la continuité de son exploitation et sur la traduction comptable de ces risques ; # ou de donner un avis quant à la conformité aux textes comptables applicables ou aux règles appliquées par l'entité des règles appliquées par la cible, éventuellement décrites dans un manuel de principes ou de procédures comptables ou dans un plan de comptes établi par la cible ; # ou de donner un avis sur les conséquences de l'acquisition envisagée en matière comptable ou d'information financière ; # ou de fournir des éléments d'information concernant des textes, projets de texte, des pratiques ou des interprétations applicables au contexte particulier de l'acquisition, qui portent sur les comptes ou l'information financière. Ces avis peuvent être assortis de recommandations contribuant à l'amélioration des traitements comptables et de l'information financière. 9. Le commissaire aux comptes est autorisé à réaliser un audit ou un examen limité sur les comptes, états comptables ou éléments des comptes de la cible dans les conditions requises aux paragraphes 07 à 13 des normes relatives à l'audit et à l'examen limité entrant dans le cadre de
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
diligences directement liées à la mission de commissaire aux comptes. 10. Le commissaire aux comptes d'une entité peut intervenir si l'acquisition est envisagée par l'entité dont il est commissaire aux comptes, par une entité contrôlée par celle-ci ou par une entité qui la contrôle, au sens des I et II de l'article L. 233-3 du code de commerce. 11. Les travaux du commissaire aux comptes ne peuvent pas inclure la participation : # à la recherche d'entités à acquérir ; # au tri des cibles potentielles ; # à la préparation de comptes pro forma ou prévisionnels ; # à la représentation de l'acquéreur dans la négociation du contrat d'acquisition ; # à la gestion administrative de la transaction ; # à la valorisation de la cible ou à la détermination du prix de la transaction ; # à l'élaboration de montages juridiques, fiscaux ou financiers liés au schéma de reprise ; # à l'émission d'une appréciation sur l'opportunité de l'opération. 12. Le commissaire aux comptes se fait préciser le contexte de la demande pour s'assurer : # que l'intervention qui lui est demandée respecte les conditions requises par la présente norme ; # et que les conditions de son intervention et l'utilisation prévue de son rapport sont compatibles avec les dispositions du code de déontologie de la profession. 13. Le commissaire aux comptes s'assure que les conditions de son intervention, notamment les délais pour mettre en œuvre les travaux qu'il estime nécessaires, sont compatibles avec les ressources dont il dispose. 14. Dans tous les cas, le commissaire aux comptes peut refuser l'intervention.
Travaux du commissaire aux comptes
15. Le commissaire aux comptes applique les dispositions de la norme d'exercice professionnel relative à la lettre de mission. Si nécessaire, il établit une nouvelle lettre ou une lettre complémentaire, conformément aux principes de la norme susmentionnée. 16. Lorsque l'entité demande des constats, le commissaire aux comptes réalise ses travaux conformément aux dispositions de la norme relative aux constats à l'issue de procédures convenues entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes. 17. Lorsque l'entité demande une consultation, le commissaire aux comptes réalise ses travaux conformément aux dispositions de la norme relative aux consultations entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes. 18. Lorsque l'entité demande un audit concernant des informations de la cible, le commissaire aux comptes réalise ses travaux conformément aux dispositions de la norme relative à l'audit entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes. 19. Lorsque l'entité demande un examen limité, le commissaire aux comptes réalise ses travaux conformément aux dispositions de la norme relative à l'examen limité entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes. 20. Dans tous les cas, le commissaire aux comptes peut estimer nécessaire d'obtenir des déclarations écrites de la direction de l'entité ou de la cible.
Rapports
21. Le commissaire aux comptes émet un rapport qui relate les résultats des travaux qu'il a réalisés. 22. Le rapport comporte un rappel de l'opération envisagée. Le titre du rapport précise que celui-ci a été établi dans le cadre de diligences d'acquisition. 23. Le rapport comporte par ailleurs, en fonction des travaux réalisés, les éléments prévus dans les normes : # constats à l'issue de procédures convenues entrant dans le cadre de diligences directement liées à la mission du commissaire aux comptes ; # consultations entrant dans le cadre de diligences directement liées à la mission du commissaire aux comptes ; # audit entrant dans le cadre de diligences directement liées à la mission du commissaire aux comptes ; # examen limité entrant dans le cadre de diligences directement liées à la mission du commissaire aux comptes.
Documentation
24. Le commissaire aux comptes fait figurer dans son dossier les éléments qui : # permettent d'établir que l'intervention a été réalisée dans le respect de la présente norme d'exercice professionnel ; # permettent, conformément aux principes de la norme d'exercice professionnel
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
relative à la documentation de l'audit des comptes, à toute personne ayant une expérience de la pratique de l'audit et n'ayant pas participé à l'intervention d'être en mesure de comprendre la nature et l'étendue des procédures mises en œuvre ainsi que les résultats qui en découlent. 25. Le commissaire aux comptes applique les dispositions des paragraphes 6 à 8 de la norme d'exercice professionnel relative à la documentation de l'audit des comptes.
Co-commissariat aux comptes
26. Lorsque l'entité a désigné plusieurs commissaires aux comptes, l'intervention peut être demandée à un seul commissaire aux comptes. 27. Il appartient alors au commissaire aux comptes qui réalise l'intervention : # d'informer préalablement les autres commissaires aux comptes de la nature et de l'objet de l'intervention ; # de leur communiquer une copie de son rapport.
Article A823-36
La norme d'exercice professionnel relative aux prestations entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes rendues lors de la cession d'entreprises, homologuée par le garde des sceaux, ministre de la justice, figure ci-dessous : NORME D'EXERCICE PROFESSIONNEL RELATIVE AUX PRESTATIONS ENTRANT DANS LE CADRE DE DILIGENCES DIRECTEMENT LIÉES À LA MISSION DE COMMISSAIRE AUX COMPTES RENDUES LORS DE LA CESSION D'ENTREPRISES
Introduction
1. Une entité peut avoir besoin, lorsqu'elle envisage de céder une entreprise, de travaux spécifiques portant sur les informations de cette entreprise. Elle peut demander à son commissaire aux comptes de réaliser ces travaux, qualifiés de diligences de cession. 2. Au sein de la présente norme, le terme entreprise désigne soit une ou plusieurs branches d'activité, soit une ou plusieurs entités dont la cession est envisagée. 3. Le commissaire aux comptes peut effectuer les travaux demandés si, conformément aux dispositions de l'article L. 822-11-II du code de commerce, la prestation effectuée entre dans les diligences directement liées à sa mission telles que définies par la présente norme d'exercice professionnel et si, en outre, les dispositions du code de déontologie sont respectées. 4. La présente norme a pour objet de définir les conditions dans lesquelles le commissaire aux comptes est autorisé à réaliser l'intervention demandée, les travaux qu'il met en œuvre et la forme des rapports qu'il délivre.
Conditions requises
5. Le commissaire aux comptes est autorisé à réaliser à la demande de l'entité, sur les comptes et l'information financière de l'entreprise ou sur les données qui les sous-tendent : # des constats à l'issue de procédures convenues ; # des consultations ; # des attestations ; # un audit au sens de la norme relative à l'audit entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes ou un examen limité au sens de la norme relative à l'examen limité entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes. 6. Les travaux du commissaire aux comptes sont effectués en mettant en œuvre tout ou partie des techniques de contrôle décrites dans la norme d'exercice professionnel relative au caractère probant des éléments collectés. 7. Les constats à l'issue de procédures convenues qui peuvent être réalisés dans un contexte de cession portent : # sur des comptes, états comptables ou éléments des comptes de l'entreprise, selon la définition qu'en donne la norme d'exercice professionnel relative à l'audit entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes ; # sur des informations, données ou documents de l'entreprise ayant un lien avec la comptabilité ou les
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données sous-tendant celle-ci ; # sur des éléments du contrôle interne relatifs à l'élaboration et au traitement de l'information comptable et financière de l'entreprise. 8. Les consultations qui peuvent être réalisées dans un contexte de cession ont pour objet : # de donner des avis sur la traduction comptable de situations dans lesquelles se trouve l'entreprise, ou d'opérations réalisées par celle-ci ; les avis peuvent notamment porter sur les risques susceptibles de conduire à des anomalies significatives dans les comptes de l'entreprise ou d'avoir une incidence sur son fonctionnement futur, voire sur la continuité de son exploitation et sur la traduction comptable de ces risques ; # ou de donner un avis sur les conséquences de la cession envisagée en matière comptable ou d'information financière ; # ou de fournir des éléments d'information concernant des textes, projets de textes, des pratiques ou des interprétations applicables au contexte particulier de la cession qui portent sur les comptes ou l'information financière. Ces avis peuvent être assortis de recommandations contribuant à l'amélioration des traitements comptables et de l'information financière. 9. Le commissaire aux comptes est autorisé à établir des attestations sur des informations établies par l'entité ou l'entreprise et ayant un lien avec la comptabilité ou avec des données sous-tendant la comptabilité de l'entreprise. Ces informations peuvent être chiffrées ou qualitatives ou porter sur des procédures de contrôle interne de l'entreprise. 10. Le commissaire aux comptes est autorisé à réaliser un audit ou un examen limité sur les comptes, états comptables ou éléments de comptes de l'entreprise dans les conditions définies aux paragraphes 07 à 13 des normes relatives à l'audit et à l'examen limité entrant dans le cadre de diligences directement liées à la mission du commissaire aux comptes. 11. Le commissaire aux comptes d'une entité peut intervenir si la cession est envisagée par l'entité dont il est commissaire aux comptes, par une entité contrôlée par celle-ci ou par une entité qui la contrôle, au sens des I et II de l'article L. 233-3 du code de commerce. 12. Les travaux du commissaire aux comptes ne peuvent pas inclure la participation : # à l'établissement du mémorandum de présentation de l'entreprise à l'acquéreur ; # à la recherche d'éventuels acquéreurs ; # à la préparation de comptes pro forma ou prévisionnels de l'entreprise, à l'élaboration des hypothèses de marché ou des évaluations correspondantes ; # à la rédaction du contrat de cession, à la représentation de l'entité cédante dans la négociation du contrat de cession ou dans le cadre de litiges éventuels nés de la cession ; # à la gestion administrative de l'opération de cession, en particulier à l'organisation et à la gestion de la data-room ; # à des travaux de valorisation de l'entreprise ou de détermination du prix de la transaction ; # à l'élaboration de montages juridiques, fiscaux ou financiers liés au schéma de cession ; # à l'émission d'une appréciation sur l'opportunité de l'opération. 13. Le commissaire aux comptes se fait préciser le contexte de la demande pour s'assurer : # que l'intervention qui lui est demandée respecte les conditions requises par la présente norme ; # et que les conditions de son intervention et l'utilisation prévue de son rapport sont compatibles avec les dispositions du code de déontologie de la profession. 14. Le commissaire aux comptes s'assure que les conditions de son intervention, notamment les délais pour mettre en œuvre les travaux qu'il estime nécessaires, sont compatibles avec les ressources dont il dispose. 15. Dans tous les cas, le commissaire aux comptes peut refuser l'intervention.
Travaux du commissaire aux comptes
16. Le commissaire aux comptes applique les dispositions de la norme d'exercice professionnel relative à la lettre de mission. Si nécessaire, il établit une nouvelle lettre ou une lettre complémentaire, conformément aux principes de la norme susmentionnée. 17. Lorsque l'entité demande des constats, le commissaire aux comptes réalise ses travaux conformément aux dispositions de la norme relative aux constats à l'issue de procédures convenues entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes. 18. Lorsque l'entité demande une consultation, le commissaire aux comptes réalise ses travaux conformément aux dispositions de la norme relative aux consultations entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes. 19. Lorsque l'entité demande une attestation, le commissaire aux comptes réalise ses travaux conformément aux dispositions de la norme relative aux attestations entrant dans le cadre de diligences directement liées à la mission de commissaire
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aux comptes. 20. Lorsque l'entité demande un audit concernant des informations de l'entreprise, le commissaire aux comptes réalise ses travaux conformément aux dispositions de la norme relative à l'audit entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes. 21. Lorsque l'entité demande un examen limité, le commissaire aux comptes réalise ses travaux conformément aux dispositions de la norme relative à l'examen limité entrant dans le cadre de diligences directement liées à la mission de commissaire aux comptes. 22. Dans tous les cas, le commissaire aux comptes peut estimer nécessaire d'obtenir des déclarations écrites de la direction de l'entité ou de l'entreprise.
Rapports
23. Le commissaire aux comptes émet un rapport qui relate les résultats des travaux qu'il a réalisés. 24. Le rapport comporte un rappel de l'opération envisagée. Le titre du rapport précise que celui-ci a été établi dans le cadre de diligences de cession. 25. Le rapport comporte par ailleurs, en fonction des travaux réalisés, les éléments prévus dans les normes : # constats à l'issue de procédures convenues entrant dans le cadre de diligences directement liées à la mission du commissaire aux comptes ; # consultations entrant dans le cadre de diligences directement liées à la mission du commissaire aux comptes ; # attestations entrant dans le cadre de diligences directement liées à la mission du commissaire aux comptes ; # audit entrant dans le cadre de diligences directement liées à la mission du commissaire aux comptes ; # examen limité entrant dans le cadre de diligences directement liées à la mission du commissaire aux comptes.
Documentation
26. Le commissaire aux comptes fait figurer dans son dossier les éléments qui : # permettent d'établir que l'intervention a été réalisée dans le respect de la présente norme d'exercice professionnel ; # permettent, conformément aux principes de la norme d'exercice professionnel relative à la documentation de l'audit des comptes, à toute personne ayant une expérience de la pratique de l'audit et n'ayant pas participé à l'intervention d'être en mesure de comprendre la nature et l'étendue des procédures mises en œuvre ainsi que les résultats qui en découlent. 27. Le commissaire aux comptes applique les dispositions des paragraphes 6 à 8 de la norme d'exercice professionnel relative à la documentation de l'audit des comptes.
Co-commissariat aux comptes
28. Lorsque l'entité a désigné plusieurs commissaires aux comptes, la prestation peut être demandée à un seul commissaire aux comptes. 29. Il appartient alors au commissaire aux comptes qui réalise l'intervention : # d'informer préalablement les autres commissaires aux comptes de la nature et de l'objet de l'intervention ; # de leur communiquer une copie de son rapport.
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Partie Arrêtés
LIVRE VIII : De quelques professions réglementées
Annexes partie A Livre VIII
ANNEXE 8-1 (ANNEXE À L'ARTICLE A. 811-1)
Article Annexe 8-1
RÈGLEMENT FIXANT LES MODALITÉS APPLICABLES AUX ÉLECTIONS DES ADMINISTRATEURS JUDICIAIRES À LA COMMISSION NATIONALE D'INSCRIPTION ET DE DISCIPLINE DES ADMINISTRATEURS JUDICIAIRES ET DES MANDATAIRES JUDICIAIRES À LA COMMISSION NATIONALE D'INSCRIPTION ET DE DISCIPLINE DES MANDATAIRES JUDICIAIRES
L'organisation des élections est confiée au Conseil national des administrateurs judiciaires et des mandataires judiciaires par les articles R. 811-3 et R. 812-3 du code de commerce. La date du scrutin est fixée par le Conseil national des administrateurs judiciaires et des mandataires judiciaires. La liste des électeurs, arrêtée deux mois avant la date du scrutin, est établie, selon le corps électoral concerné, par la Commission nationale d'inscription et de discipline des administrateurs judiciaires ou par la Commission nationale d'inscription et de discipline des mandataires judiciaires. Elle est transmise au Conseil national par le ministère de la justice. Au moins six semaines avant la date du scrutin, le Conseil National avise les membres du corps électoral concerné de la date des élections et invite les candidats à se faire connaître. Les candidatures sont individuelles. Les candidats sont tenus de faire une déclaration revêtue de leur signature, énonçant leur nom, prénoms, date de naissance et la date de leur inscription sur la liste professionnelle. Cette déclaration doit également indiquer les nom, prénoms, date de naissance et date d'inscription sur la liste professionnelle de la personne appelée à remplacer le candidat élu en cas d'empêchement. Elle doit être accompagnée de l'acceptation écrite du remplaçant.A défaut, la candidature est nulle. Les déclarations de candidature sont remises contre récépissé ou adressées par lettre recommandée avec demande d'avis de réception au plus tard trois semaines avant la date du scrutin au Conseil national des administrateurs judiciaires et des mandataires judiciaires. Au plus tard quinze jours avant la date du scrutin, le Conseil national avise les électeurs des modalités des opérations électorales ainsi que de la date et du lieu des opérations de dépouillement. Il adresse, selon le corps électoral concerné, à chaque administrateur judiciaire ou à chaque mandataire judiciaire figurant sur la liste des électeurs un exemplaire valant bulletin de vote, de la liste des candidats. Les bulletins de vote doivent comporter la liste des candidats et, sous le nom de chaque candidat, la mention suppléant suivie du nom de la personne appelée à remplacer le candidat élu en cas d'empêchement, ainsi que, en face du nom de chaque candidat, une case permettant d'exprimer un ordre de préférence. L'électeur raye sur le bulletin qui lui a été adressé, le nom des candidats titulaires qu'il ne retient pas et exprime un ordre de préférence pour ceux qu'il retient. Tout bulletin sans ordre de préférence et comportant plus de trois noms de candidats titulaires non rayés est nul,
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de même que tout bulletin surchargé. Le vote a lieu par correspondance à compter de la réception des bulletins envoyés par le Conseil national. Les bulletins doivent être parvenus au Conseil national au plus tard le jour du scrutin. Les votes reçus postérieurement à cette date sont nuls. Chaque bulletin est envoyé sous double enveloppe ; l'enveloppe intérieure, qui contient le bulletin de vote, doit être fermée et ne porter aucune marque distinctive ; l'enveloppe extérieure, comportant la mention élections porte le nom de l'électeur et contient l'enveloppe intérieure. Les bulletins contenus dans des enveloppes irrégulières sont nuls. Après la clôture du scrutin, le bureau du Conseil national procède aux opérations de dépouillement en présence, selon le corps électoral concerné, de tout administrateur judiciaire ou de tout mandataire judiciaire intéressé. Les enveloppes extérieures sont ouvertes, le nom de l'électeur est pointé sur la liste des électeurs et l'enveloppe intérieure introduite dans une urne. Les bulletins sont ensuite dépouillés et décomptés. Les résultats sont aussitôt proclamés et un procès-verbal de ces opérations est établi par le bureau du Conseil national.
ANNEXE 8-2 (ANNEXE À L'ARTICLE A. 814-1)
Article Annexe 8-2
RÈGLES PROFESSIONNELLES PRÉVUES PAR L'ARTICLE 54-1-II DU DÉCRET DU 27 DÉCEMBRE 1985 MODIFIÉE
Sommaire
Préambule. Titre Ier. # Définitions. 1. 1. De l'administrateur judiciaire. 1. 2. Du mandataire judiciaire à la liquidation des entreprises. Titre II. # Principes de déontologie. 2. 1. Des principes fondamentaux. 2. 2. Des obligations s'imposant aux professionnels à raison de leur mission de service public. 2. 2. 1. Des incompatibilités. 2. 2. 2. De l'indépendance. 2. 3. Des relations avec les tiers. 2. 3. 1. Du secret professionnel. 2. 3. 2. De l'image de la profession. 2. 3. 3. De la publicité. 2. 3. 4. Du papier à lettres. 2. 3. 5. De la plaque professionnelle. 2. 3. 6. Des interventions publiques. 2. 3. 7. Des relations avec les établissements financiers. 2. 3. 8. Des relations avec les parties à la procédure. 2. 3. 9. Des relations avec les juridictions et les autorités publiques. 2. 3. 10. Des relations avec les membres des autres professions judiciaires. 2. 4. Des relations avec la profession. 2. 4. 1. Des relations avec les professionnels. 2. 4. 2. Des collaborateurs. 2. 4. 3. Des relations avec les instances représentatives. Titre III. # De la formation et du stage. 3. 1. De l'accès au stage. 3. 2. De la charte du stage. 3. 3. De la formation théorique initiale. 3. 4. De la formation permanente. 3. 5. Du financement de la formation. Titre IV. # Des modalités d'exercice de la profession. 4. 1. Du domicile professionnel. 4. 2. Des bureaux annexes. 4. 3. De la carte professionnelle. 4. 4. De l'exercice sous forme de société. 4. 5. De l'exécution des mandats et missions. 4. 5. 1. Des délégations de pouvoir. 4. 5. 2. Des délégations et modalités de signature. 4. 5. 3. Des intervenants extérieurs. 4. 6. De la conservation des pièces et de la sécurité des dossiers. 4. 7. De l'administration provisoire. 4. 8. De la comptabilité. 4. 8. 1. Du répertoire. 4. 8. 2. Des obligations comptables. 4. 8. 3. De la comptabilité spéciale. 4. 8. 4. De l'agrément des logiciels de comptabilité spéciale. Titre V. # De la surveillance de l'activité. 5. 1. Des divers aspects de la surveillance et du contrôle. 5. 2. Des contrôles périodiques et occasionnels. 5. 3. Du contrôle du commissaire aux comptes choisi par le professionnel sur le fondement de l'article 58, alinéa 2, du décret n° 85-1389 du 27 décembre 1985 modifié. 5. 4. De l'inspection. Annexe I. # Des règles de la comptabilité spéciale des administrateurs judiciaires et des mandataires judiciaires à la liquidation des entreprises. I. # Définition des livres comptables. 1. 1. Le répertoire des mandats. 1. 2. Le livre-journal. 1. 3. Les journaux auxiliaires. 1.
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4. Le grand livre. 1. 5. Les grands livres auxiliaires. 1. 6. Les états périodiques. 1. 6. 1. Les états trimestriels. 1. 6. 2. Les états de contrôle. 1. 7. Les carnets de reçus pour les remises d'espèces. II. # Description du jeu des écritures. 2. 1. Les caractéristiques de l'écriture. 2. 2. La saisie des écritures. 2. 3. Les éditions. 2. 4. La validité des écritures comptables. III. # Comptabilité en euros. 3. 1. Rappel des règles. 3. 2. Traitement des écarts. 3. 3. Conversion des historiques. Annexe II. # De l'agrément des logiciels de traitement automatisé de la comptabilité spéciale.
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RÈGLES PROFESSIONNELLES PRÉVUES PAR L'ARTICLE 54-1-II DU DÉCRET DU 27 DÉCEMBRE 1985 MODIFIÉ
Préambule
Les règles professionnelles réunissent l'ensemble des prescriptions d'ordre déontologique qui, en application des dispositions légales et réglementaires en vigueur à la date de leur approbation par le garde des sceaux, s'imposent à tous les administrateurs judiciaires et à tous les mandataires judiciaires à la liquidation des entreprises pour l'exercice de leur activité. Elles sont susceptibles d'être modifiées en fonction de l'évolution de ces dispositions. Ces règles s'appliquent également aux professionnels retirés des listes et autorisés à poursuivre un ou plusieurs dossiers en cours, en vertu des articles 9 et 24 de la loi n° 85-99 du 25 janvier 1985 ainsi qu'aux professionnels occasionnels, sauf pour ce qui concerne l'obligation de cotiser à la caisse de garantie des administrateurs judiciaires et des mandataires judiciaires à la liquidation des entreprises et au Conseil national des administrateurs judiciaires et des mandataires judiciaires à la liquidation des entreprises. Elles sont rassemblées dans le présent document. Elles ont été arrêtées par le Conseil national des administrateurs judiciaires et des mandataires judiciaires à la liquidation des entreprises (ci-après dénommé le Conseil national) en application de l'article 54-1-II du décret n° 85-1389 du 27 décembre 1985 modifié. Leur non-respect peut entraîner des poursuites disciplinaires à l'initiative exclusive de l'autorité publique qui dispose, seule, du pouvoir disciplinaire.
TITRE IER : DEFINITIONS 1. 1. De l'administrateur judiciaire. Les administrateurs judiciaires sont les mandataires chargés par décision de justice d'administrer les biens d'autrui ou d'exercer des fonctions d'assistance ou de surveillance dans la gestion de ces biens (art. 1er de la loi n° 85-99 du 25 janvier 1985). Les administrateurs judiciaires peuvent également se voir confier les mandats ou missions visés à l'article 11 de la loi n° 85-99 du 25 janvier 1985. Les administrateurs judiciaires sont inscrits sur une liste nationale divisée en sections régionales, correspondant au ressort de chaque cour d'appel, et subdivisée en deux sous-sections, l'une pour les administrateurs judiciaires en matière commerciale, l'autre pour les administrateurs judiciaires en matière civile. Les tribunaux peuvent cependant à titre exceptionnel et par décision motivée désigner en qualité d'administrateur judiciaire des personnes non inscrites sur cette liste. Un administrateur judiciaire peut être inscrit sur les deux sous-sections. Les administrateurs judiciaires en matière commerciale peuvent recevoir des mandats de syndic dans le cadre de la loi n° 67-563 du 13 juillet 1967 sur le règlement judiciaire et la liquidation des biens. 1. 2. Du mandataire judiciaire à la liquidation des entreprises. Les mandataires judiciaires à la liquidation des entreprises sont les mandataires chargés par décision de justice de représenter les créanciers et de procéder éventuellement à la liquidation d'une entreprise dans les conditions définies par la loi n° 85-98 du 25 janvier 1985 relative au redressement et à la liquidation judiciaires des entreprises (art. 19 de la loi n° 85-99 du 25 janvier 1985). Les mandataires judiciaires à la liquidation des entreprises peuvent également se voir confier les mandats ou missions visés à l'article 27 de la loi n° 85-99 du 25 janvier 1985. Les mandataires judiciaires à la liquidation des entreprises peuvent recevoir des mandats de syndic dans le cadre de la loi n° 67-563 du 13 juillet 1967 sur le règlement judiciaire et la liquidation des biens. TITRE II :
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PRINCIPES DE DEONTOLOGIE 2. 1. Des principes fondamentaux. L'indépendance, la probité, l'honneur, la loyauté, la dignité, la conscience, l'humanité, le désintéressement, la délicatesse, la modération, la courtoisie, la confraternité et le tact sont d'impérieux devoirs pour l'administrateur judiciaire et le mandataire judiciaire à la liquidation des entreprises. Ils constituent ensemble les principes fondamentaux qui régissent l'exercice de leur activité. Même en dehors de leur exercice professionnel, les administrateurs judiciaires et les mandataires judiciaires à la liquidation des entreprises doivent s'abstenir de toute infraction aux lois et règlements et de tout agissement contraire aux principes fondamentaux précités ou susceptibles de porter atteinte à la dignité de leur profession. Tout administrateur judiciaire et tout mandataire judiciaire à la liquidation des entreprises doit, conformément au serment qu'il a prêté devant la cour d'appel, respecter la déontologie de sa profession. 2. 2. Des obligations s'imposant aux professionnels à raison de leur mission de service public. Les administrateurs judiciaires et les mandataires judiciaires à la liquidation des entreprises assument une mission de service public dans le cadre d'une activité libérale. Le système de garantie collective de la responsabilité professionnelle des administrateurs judiciaires et des mandataires judiciaires à la liquidation des entreprises leur crée à cet égard des devoirs particuliers. 2. 2. 1. Des incompatibilités. 2. 2. 1. 1. Conformément aux dispositions des articles 11 et 29 de la loi n° 85-99 du 25 janvier 1985, l'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises ne peut exercer d'activité de nature à porter atteinte à son indépendance, à sa dignité et, à l'exception de l'enseignement, au caractère libéral de son exercice professionnel. 2. 2. 1. 2. Afin qu'il ne soit pas porté atteinte à son indépendance et afin d'éviter tout conflit et toute communauté d'intérêts, il est demandé à tout administrateur judiciaire et tout mandataire judiciaire à la liquidation des entreprises de s'abstenir d'exercer toute activité commerciale, directement ou par personne interposée, et de détenir un mandat social dans une société à objet commercial, à l'exception d'un mandat de liquidateur amiable. 2. 2. 1. 3. Tout administrateur judiciaire ou mandataire judiciaire à la liquidation des entreprises titulaire d'un mandat social dans une société à objet civil ou commercial doit avertir par écrit le Conseil national de tout événement de nature à compromettre la survie de la société en fournissant toutes explications sur les conditions dans lesquelles il exerce ses fonctions. Si le Conseil national estime que ces fonctions deviennent incompatibles avec les principes fondamentaux précités, il convoque l'intéressé pour recevoir ses explications et statuer sur l'opportunité d'une démission desdites fonctions. Le professionnel a la possibilité de se faire assister par tout conseil de son choix. Si le Conseil national estime qu'il y a lieu à démission et si l'intéressé ne se plie pas à cette injonction dans le mois suivant sa notification par lettre recommandée avec accusé de réception, le président du Conseil national avise le commissaire du Gouvernement auprès de la commission d'inscription ou de discipline ayant établi la liste sur laquelle figure l'administrateur judiciaire ou le mandataire judiciaire concerné et peut également informer les présidents des juridictions le désignant habituellement. 2. 2. 1. 4.L'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises peut être président d'une association régie par la loi du 1er juillet 1901. 2. 2. 1. 5.L'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises investi d'un mandat public, électif ou non, doit veiller à ce qu'aucune confusion ne puisse s'établir entre l'exercice de sa profession et l'accomplissement de ce mandat. 2. 2. 2. De l'indépendance. 2. 2. 2. 1.L'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises ne doit en aucun cas se trouver dans une position susceptible d'altérer sa liberté d'appréciation, qui doit rester pleine et entière, ou dans une position susceptible d'être perçue comme telle. Les fonctions d'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises sont notamment incompatibles avec toute situation plaçant l'intéressé dans un état de dépendance, de quelque nature qu'elle soit, à l'égard de toute entreprise pour laquelle un mandat lui est confié ou de tout conseil ou partenaire de ladite entreprise. Les collaborateurs de l'administrateur judiciaire ou du mandataire judiciaire à la liquidation des entreprises doivent remplir les mêmes conditions d'indépendance. L'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises ne peut user de ses fonctions pour rechercher un avantage indû pour son compte ou au bénéfice d'autrui, notamment auprès des établissements financiers, des entreprises sous mandat et
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plus généralement de toute personne physique ou morale avec laquelle il peut avoir un contact professionnel. La qualité d'administrateur judiciaire ou de mandataire judiciaire à la liquidation des entreprises est incompatible avec l'acquisition amiable d'actifs d'une personne, physique ou morale, soumise à une procédure collective. 2. 2. 2. 2. Lorsqu'un administrateur judiciaire ou un mandataire judiciaire à la liquidation des entreprises reçoit un mandat d'une juridiction, il informe par écrit dans les huit jours de sa désignation le président de ladite juridiction et le procureur de la République compétent des intérêts économiques et financiers qu'il détient directement ou indirectement dans l'entreprise concernée ou dans une entreprise concurrente, et qui peuvent faire obstacle à l'attribution de ce mandat. Dans le cas d'un mandat amiable, il informe dans les mêmes conditions son mandant. 2. 2. 2. 3. Dès lors qu'un administrateur judiciaire ou un mandataire judiciaire à la liquidation des entreprises constate en cours de mandat l'existence de faits ou de liens de nature à porter atteinte à son indépendance ou pouvant être perçus comme tels, il en avise sans délai le président de la juridiction qui l'a désigné et le procureur de la République compétent, ou son mandant, en cas de mandat amiable. 2. 2. 2. 4. Sous réserve de dispositions de la loi n° 90-1258 du 31 décembre 1990 et des décrets n° 93-892 du 6 juillet 1993 et n° 93-1112 du 20 septembre 1993, tout contrôle direct ou indirect de l'exercice professionnel de l'administrateur judiciaire ou du mandataire judiciaire à la liquidation des entreprises par des personnes physiques ou morales n'appartenant pas à leur profession est prohibé. 2. 3. Des relations avec les tiers. 2. 3. 1. Du secret professionnel. Dans le cadre des missions et mandats qui leur sont confiés, et sous réserve des dispositions légales et réglementaires propres à l'exercice de leur activité, les administrateurs judiciaires et les mandataires judiciaires à la liquidation des entreprises sont tenus au secret professionnel dans les conditions prévues par les articles 226-13 et 226-14 du code pénal. Ce secret couvre tout ce qui est venu à la connaissance de l'administrateur judiciaire ou du mandataire judiciaire à la liquidation des entreprises dans l'exercice de son activité. L'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises doit en conséquence : # n'accepter de témoigner de ce qu'il peut savoir au titre des mandats et missions qui lui sont ou lui ont été confiés que dans les cas expressément prévus par la loi et le règlement tels qu'ils sont interprétés par la jurisprudence ; # se faire assister lors de toute perquisition à son domicile professionnel ou dans un bureau annexe par le président du Conseil national ou son représentant qui assure, de concours avec le juge d'instruction, le respect du secret professionnel conformément aux articles 56 et 96 du code de procédure pénale. Les administrateurs judiciaires et les mandataires judiciaires à la liquidation des entreprises doivent veiller à ce que tous leurs collaborateurs soient instruits de l'obligation au secret professionnel, qui est aussi la leur, et la respectent. 2. 3. 2. De l'image de la profession. Chaque administrateur judiciaire, chaque mandataire judiciaire à la liquidation des entreprises doit, par son comportement, s'attacher à donner, en toutes circonstances, la meilleure image de sa profession. A cet égard, les administrateurs judiciaires et les mandataires judiciaires à la liquidation des entreprises doivent avoir une pleine conscience des conséquences possibles de leur comportement professionnel et des actes accomplis dans l'exercice de leurs fonctions. Tout administrateur judiciaire ou mandataire judiciaire à la liquidation des entreprises doit assurer une prestation de qualité. 2. 3. 3. De la publicité. 2. 3. 3. 1. Toute forme de publicité personnelle, même indirecte, est interdite à l'administrateur judiciaire et au mandataire judiciaire à la liquidation des entreprises. 2. 3. 3. 2.L'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises membre ou ancien membre d'une instance professionnelle (Conseil national, conseil d'administration de la caisse de garantie, jury d'examen, conseils des organisations professionnelles, etc.), ou à qui ces instances ont confié une fonction ou une mission, ne peut faire état, pour obtenir un mandat ou à l'occasion de l'accomplissement d'un mandat, ni de cette qualité ni de ces fonctions ou missions. 2. 3. 3. 3. Le Conseil national et, le cas échéant, les organisations professionnelles peuvent faire ou autoriser toute publicité collective qu'ils jugent utile. 2. 3. 4. Du papier à lettres. Le papier à lettres des administrateurs judiciaires et des mandataires judiciaires à la liquidation des entreprises, comme tout document destiné à des tiers, notamment les cartes de visite et les cartes de voeux, doit respecter le principe de l'interdiction de la publicité personnelle. Il doit indiquer les nom, prénom, titre d'administrateur judiciaire ou de mandataire judiciaire à la liquidation des
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entreprises auprès des tribunaux de la cour d'appel de..., adresse, numéros de téléphone, de télécopie et, éventuellement, adresse télématique. Les administrateurs judiciaires doivent préciser la sous-section de la liste sur laquelle ils sont inscrits (celle des administrateurs judiciaires en matière civile ou celle des administrateurs judiciaires en matière commerciale), les administrateurs judiciaires inscrits sur les deux soussections pouvant toutefois s'en abstenir. Le papier à lettres peut également faire éventuellement état des titres et fonctions universitaires, des autres professions réglementées exercées en vertu des articles 11 et 27 de la loi n° 85-99 du 25 janvier 1985 ou ayant été exercées, et des bureaux annexes dûment autorisés avec leurs coordonnées. En cas d'exercice dans le cadre d'une personne morale, le papier à lettres doit mentionner la forme de la personne morale et sa dénomination sociale et peut mentionner les noms et prénoms de l'ensemble des associés, les nom et prénom du signataire de la lettre devant toujours être indiqués. Toute autre mention que n'imposeraient pas des dispositions légales ou réglementaires est interdite. 2. 3. 5. De la plaque professionnelle. Les administrateurs judiciaires et les mandataires judiciaires à la liquidation des entreprises peuvent apposer, à l'intérieur de l'immeuble où ils exercent, une plaque indiquant leur nom, prénom et qualité d'administrateur judiciaire ou de mandataire judiciaire à la liquidation des entreprises, le cas échéant celle d'ancien syndic administrateur judiciaire ou d'ancien administrateur et séquestre près le tribunal de grande instance de Paris, ainsi que la situation de leur étude ou bureau annexe dans l'immeuble. Une plaque d'aspect sobre, de dimensions limitées et sans portée publicitaire peut également être apposée à l'extérieur de l'immeuble. Lorsque la profession est exercée dans le cadre d'une personne morale, la plaque peut comporter, outre la forme juridique et la dénomination sociale de la personne morale, les noms et prénoms de chacun des professionnels associés. 2. 3. 6. Des interventions publiques. L'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises s'exprime librement dans les domaines de son choix et suivant les moyens qu'il estime appropriés. Il doit, en toutes circonstances, faire preuve de discrétion et de réserve, particulièrement lorsque sa qualité d'administrateur judiciaire ou de mandataire judiciaire à la liquidation des entreprises est connue, et s'interdire toute recherche de publicité. Si l'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises fait des déclarations concernant les mandats ou missions qui lui sont confiés ou sur des questions générales en rapport avec son activité professionnelle, il doit le faire dans le respect du secret professionnel. Il doit en outre indiquer à quel titre il s'exprime et faire preuve d'une vigilance particulière. 2. 3. 7. Des relations avec les établissements financiers. Lorsqu'ils traitent à titre personnel avec un établissement financier avec lequel ils entretiennent une relation professionnelle dans le cadre des mandats qui leur sont confiés, les administrateurs judiciaires et les mandataires judiciaires à la liquidation des entreprises doivent : # s'assurer que les conditions proposées sont celles généralement pratiquées par ledit établissement envers les clients d'un profil financier équivalent et, en conséquence, s'abstenir de toute négociation individuelle et personnelle en vue d'avantages particuliers ; # refuser des concours à des conditions inférieures au taux de refinancement de l'établissement concerné ; # exclure toute clause de fidélité commerciale. 2. 3. 8. Des relations avec les parties à la procédure. Les administrateurs judiciaires et les mandataires judiciaires à la liquidation des entreprises doivent aux diverses parties à la procédure tous leurs égards ainsi que leur conscience professionnelle, l'équité, la probité et l'information la plus complète possible. Qu'ils soient en relation avec le débiteur, les salariés, les créanciers, les contrôleurs ou des prestataires de services externes à la procédure, les administrateurs judiciaires et mandataires judiciaires à la liquidation des entreprises veillent à assurer à leurs interlocuteurs des conditions d'accueil et de réception convenables. Il est recommandé aux professionnels de remettre au débiteur au plus tard dès leur première entrevue un document permettant à ce dernier de comprendre la mission respective des organes de la procédure. Les professionnels observent vis-à-vis des diverses parties, notamment des salariés, la disponibilité imposée par les circonstances. Ils utilisent au mieux les techniques de communication modernes et prennent les moyens humains et techniques permettant de répondre rapidement et de manière circonstanciée aux demandes d'informations et plus généralement à tout courrier qui leur est adressé. Dans le traitement de leurs dossiers, ils pratiquent la transparence vis-à-vis de leurs divers interlocuteurs sous réserve des obligations de discrétion ou
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de secret professionnel. Il leur appartient de faire circuler l'information sans délai, cette célérité d'intervention étant de nature à assurer au mieux les obligations mises à leur charge et à leur faciliter l'exécution des tâches qui leur sont confiées. Ils veillent au respect du principe du contradictoire dans la mesure du possible et à exercer en tout état de cause leurs fonctions dans le respect de la dignité et des droits de chacun. 2. 3. 9. Des relations avec les juridictions et les autorités publiques. Dans ses relations avec les juridictions mandantes, le professionnel s'efforce d'être personnellement présent aux audiences déterminantes pour l'accomplissement de son mandat. Il exerce ses fonctions avec loyauté et transparence à l'égard de la juridiction mandante. Plus généralement, l'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises s'efforce de faire montre, dans l'exercice de ses fonctions, de loyauté et de courtoisie à l'égard des autorités publiques avec lesquelles il est en contact. 2. 3. 10. Des relations avec les membres des autres professions judiciaires. Tout acte judiciaire, extra-judiciaire ou lettre en tenant lieu, établi par un administrateur judiciaire ou un mandataire judiciaire à la liquidation des entreprises ou sur ses instructions et dirigé, à titre personnel, contre un administrateur judiciaire, un mandataire judiciaire à la liquidation des entreprises ainsi que contre tout membre des professions judiciaires (avocat, officier ministériel, auxiliaire de justice, expert judiciaire), ou les mettant en cause, et ce quelle que soit la forme juridique sous laquelle ces derniers exercent leur activité, doit être préalablement soumis au visa du président du Conseil national pour lui permettre, le cas échéant, d'inviter les parties à la conciliation ou de conseiller une modération de l'expression. Le visa du président du Conseil national et son éventuelle invitation à la conciliation ne constituent ni une autorisation, ni une décision, ni une approbation, mais une recommandation que l'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises est en droit de ne pas suivre, sauf à répondre de tout manquement aux principes fondamentaux précités. 2. 4. Des relations avec la profession. 2. 4. 1. Des relations avec les professionnels. 2. 4. 1. 1. Des bonnes relations entre confrères. Les administrateurs judiciaires et les mandataires judiciaires à la liquidation des entreprises doivent entretenir des rapports de courtoisie et de confraternité. Ils se doivent mutuellement conseil et assistance morale. Administrateurs judiciaires et mandataires judiciaires à la liquidation des entreprises doivent se garder de tous actes ou paroles susceptibles de nuire à la situation ou à l'honorabilité d'un confrère. S'ils ont connaissance d'une erreur ou d'une faute commise par un confrère dans l'exercice de sa profession, ils doivent s'abstenir de rendre publique leurs critiques et en référer immédiatement à leur confrère. Lorsque plusieurs administrateurs judiciaires ou mandataires judiciaires à la liquidation des entreprises ont été conjointement désignés, ils veillent à définir entre eux un programme général de travail et à coordonner leurs tâches respectives. Ils se tiennent mutuellement informés de leurs diligences respectives. Les administrateurs judiciaires et les mandataires judiciaires à la liquidation des entreprises sont tenus à une obligation de solidarité morale en faveur de tout confrère frappé d'invalidité ou d'incapacité ou des ayants droit de tout confrère décédé alors qu'il exerçait toujours des mandats ou des missions. Le ou les administrateurs judiciaires ou mandataires judiciaires à la liquidation des entreprises qui lui succèdent dans ses missions ou mandats doivent : # en informer sans délai le président du Conseil national ; # faire diligence pour obtenir, au profit du confrère frappé d'invalidité ou d'incapacité ou des ayants droit du confrère décédé, le paiement de tous honoraires restant éventuellement dus. 2. 4. 1. 2. Des differends entre confrères. Tout administrateur judiciaire ou mandataire judiciaire à la liquidation des entreprises qui a un différend lié à l'exercice de la profession avec un autre administrateur judiciaire ou mandataire judiciaire à la liquidation des entreprises doit d'abord tenter de trouver avec lui une solution amiable. En cas d'échec, il doit soumettre le différend pour conciliation au président du Conseil national. De même, en cas de différend lié à l'exercice de la profession au sein d'une personne morale, toute difficulté qui ne peut être résolue amiablement doit être soumise pour conciliation au président du Conseil national par l'associé concerné le plus diligent. La procédure de conciliation devant le président du Conseil national ou son délégué est un préalable obligatoire à toute procédure judiciaire : elle est conduite dans le respect du principe du contradictoire et ne peut, sauf accord des parties, durer plus de deux mois. 2. 4. 1. 3. De la concurrence. Les administrateurs judiciaires et les mandataires judiciaires à la liquidation des entreprises doivent laisser s'exercer le
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libre choix des juridictions comme de toute personne pouvant avoir recours à leurs services. Ils doivent s'abstenir de tout acte tendant à influencer ce choix comme de tirer profit de manoeuvres extérieures ayant eu pour résultat d'influencer ce choix. Une libre, saine et loyale concurrence, reposant sur la qualité du service, est la garantie d'un choix efficient et un facteur d'émulation et de progrès. Une telle concurrence exclut toute forme de démarchage. Elle interdit toute recherche de mandats ou de missions, notamment : # par l'offre ou l'octroi, par ailleurs prohibé, de remise sur honoraires, commission ou autres avantages ; # en faisant état d'un mandat politique ou associatif, d'une mission administrative ou d'une responsabilité professionnelle. Le professionnel ne peut prétendre disposer d'une clientèle. Il ne peut donc passer de convention de rétrocession d'honoraires qui n'aurait d'autre finalité que la rémunération d'un droit de présentation. 2. 4. 2. Des collaborateurs. Administrateurs judiciaires et mandataires judiciaires à la liquidation des entreprises doivent assurer à leurs collaborateurs des conditions de travail moralement et matériellement satisfaisantes dans le respect du droit du travail. Ils ont le devoir d'encourager et de surveiller le perfectionnement de leurs collaborateurs. Ils doivent en outre veiller soigneusement au choix de leurs collaborateurs et ne s'entourer que d'un personnel donnant toutes garanties au point de vue de la moralité, de la discrétion et de la compétence. 2. 4. 3. Des relations avec les instances représentatives. 2. 4. 3. 1. De la protection du titre. Tout administrateur judiciaire ou mandataire judiciaire à la liquidation des entreprises ayant connaissance d'un cas d'exercice illégal de l'activité d'administrateur judiciaire ou de mandataire judiciaire à la liquidation des entreprises ou d'un cas d'usage abusif du titre d'administrateur judiciaire ou de mandataire judiciaire à liquidation des entreprises informe le président du Conseil national. Le président du Conseil national en avise le ou les procureurs de la République près les juridictions concernées et le magistrat coordonnateur des inspections pour leur permettre de prendre toutes mesures utiles. 2. 4. 3. 2. Des cotisations au Conseil national et à la caisse de garantie. Les administrateurs judiciaires et les mandataires judiciaires à la liquidation des entreprises ont l'obligation de régler sans délai leurs cotisations au Conseil national et à la caisse de garantie. Si la cotisation n'est pas réglée dans le mois suivant mise en demeure par lettre recommandée avec accusé de réception, un intérêt court de plein droit au taux légal majoré. Si l'intéressé ne s'est toujours pas exécuté dans le mois suivant rappel par lettre recommandée avec accusé de réception, le président du Conseil national ou de la caisse de garantie, selon le cas, avise le commissaire du Gouvernement près la commission d'inscription et de discipline ayant établi la liste sur laquelle figure l'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises concerné et peut également informer les présidents des juridictions le désignant habituellement. 2. 4. 3. 3. Des obligations des membres élus aux instances représentatives. Elu ou désigné au sein d'instances professionnelles pour assumer une fonction ou pour accomplir une mission, tout administrateur judiciaire ou mandataire judiciaire à la liquidation des entreprises doit consacrer à ces fonction et mission le temps nécessaire, au bénéfice de la profession. 2. 4. 3. 4. Des obligations diverses vis-à-vis du Conseil national et de la caisse de garantie. Si une procédure judiciaire à laquelle un administrateur judiciaire ou un mandataire judiciaire à la liquidation des entreprises est partie est, par ses incidences possibles, de nature à intéresser tout ou partie de ses confrères dans les conditions de leur exercice professionnel, il doit en informer sans délai le président du Conseil national. Tout administrateur judiciaire ou tout mandataire judiciaire à la liquidation des entreprises dont la responsabilité professionnelle est judiciairement mise en cause doit en aviser immédiatement la caisse de garantie et répondre sans délai à toute demande d'information de sa part. Tout administrateur judiciaire ou tout mandataire judiciaire à la liquidation des entreprises poursuivi disciplinairement, cité devant un tribunal correctionnel ou mis en examen, sur quelque fondement que ce soit, est tenu d'en faire part sans délai au président du Conseil national en lui apportant toutes précisions utiles. TITRE III : DE LA FORMATION ET DU STAGE 3. 1. De l'accès au stage. La formation régulière de stagiaires par les administrateurs judiciaires et les mandataires judiciaires à la liquidation des entreprises conditionne la pérennité de l'accomplissement de leur mission légale au service de l'économie et des justiciables. Elle est un impérieux devoir pour la profession toute entière. Pour faciliter la mise en relation des candidats au stage et des maîtres de stage, la commission de formation professionnelle du Conseil
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national tient à jour et met à la disposition des intéressés : # un document où figurent tous renseignements utiles sur les candidats au stage s'étant manifestés auprès d'elle ; # une liste des maîtres de stage qui se sont manifestés pour prendre en charge la formation d'un stagiaire. Un lien de confiance étant nécessaire entre maître de stage et stagiaire, chaque candidat au stage choisit librement son maître de stage et chaque maître de stage choisit librement son stagiaire. 3. 2. De la charte du stage. Le stage consiste dans l'exécution de travaux professionnels complétés par des actions de formation organisées notamment par le Conseil national. Ces actions comportent des enseignements théoriques et pratiques assurés par des personnes qualifiées. Le maître de stage est obligatoirement une personne physique exerçant à titre individuel ou dans le cadre d'une personne morale. Tout maître de stage doit : # mettre le stagiaire en mesure d'acquérir une pratique réelle dans tous les domaines de l'activité professionnelle (incluant la participation aux audiences) ; # assurer au stagiaire une formation pédagogique, notamment en matière de gestion de l'étude et de déontologie professionnelle ; # permettre au stagiaire de participer aux sessions de formation organisées à son intention par le Conseil national, cette participation étant prise en compte dans son temps de travail ; # inscrire le stagiaire sur le registre du personnel et lui allouer une rémunération en qualité de salarié dans le respect des dispositions du droit du travail ; # ne pas assurer simultanément la formation de plus de deux stagiaires (sauf dérogation accordée par la commission de formation professionnelle) ; # informer sans délai la commission de formation professionnelle de toute modification intervenant dans la situation juridique du stagiaire, notamment de toute interruption du stage et lui adresser copie de l'attestation de fin de stage. Tout stagiaire doit : # participer effectivement à l'activité professionnelle du maître de stage ; # assister aux sessions de formation organisées pour les stagiaires par le Conseil national ; # s'efforcer de participer aux colloques et séminaires organisés par le Conseil national et les organisations professionnelles et syndicales avec l'agrément de la commission de formation professionnelle ; # préparer l'examen professionnel ; # respecter le secret professionnel et observer un devoir de réserve pendant son stage et à l'issue de celui-ci. Au terme de chaque année civile (et au terme du stage s'il ne correspond pas avec la fin d'une année civile), tout stagiaire établit, avec la participation de son maître de stage, un rapport décrivant et illustrant la formation pratique et théorique reçue au cours de l'année écoulée. Ce rapport, signé par le stagiaire et visé par le maître de stage, est adressé à la commission de formation professionnelle du Conseil national au plus tard le 31 mars de l'année suivante (ou dans les trois mois suivant la fin du stage). Les règles ci-dessus sont reprises dans une charte de suivi de stage signée par le maître de stage et le stagiaire. Elles s'appliquent même pour la partie du stage qui ne serait pas accomplie chez un administrateur judiciaire ou un mandataire judiciaire à la liquidation des entreprises. Leur respect conditionne notamment l'accès aux sessions de formation organisées par le Conseil national à l'intention des stagiaires. La charte de suivi de stage ainsi que la convention de stage sont adressées par le maître de stage à la commission de formation professionnelle préalablement au commencement du stage (et, en cours de stage, avant tout changement de maître de stage). La convention de stage ne peut comprendre de clauses limitant les possibilités ultérieures d'installation du stagiaire. 3. 3. De la formation théorique initiale. Conformément à la mission qui lui a été assignée, le Conseil national organise la formation théorique des stagiaires. Il leur propose gracieusement un cycle de cours leur permettant d'acquérir les connaissances nécessaires pour compléter leur formation pratique et leur permettre de présenter utilement l'examen professionnel. 3. 4. De la formation permanente. Chaque administrateur judiciaire, chaque mandataire judiciaire à la liquidation des entreprises doit, en permanence, faire les efforts de recherche nécessaires pour améliorer la qualité de ses services et maintenir le haut degré de compétence professionnelle qu'exigent les mandats et missions qui lui sont confiés. Il a le devoir d'entretenir et de renouveler ses connaissances et de se tenir informé de l'évolution du droit, de l'économie et de la société. Il consacre annuellement un certain temps à sa formation permanente et veille également à celle de ses collaborateurs. Le Conseil national organise chaque année des séminaires ou sessions de formation sur des thèmes et selon des formes qui lui sont proposés par sa commission de formation professionnelle. Les administrateurs judiciaires et les mandataires judiciaires à la liquidation des entreprises établissent librement leur programme de formation qui
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doit obligatoirement comprendre un ou plusieurs séminaires ou sessions de formation organisés par le Conseil national ou validés par lui après avis de sa commission de formation professionnelle. 3. 5. Du financement de la formation. Les actions de formation sont arrêtées par le Conseil national après avis de la commission de formation professionnelle. Sur avis de la commission de formation professionnelle, le Conseil national met à la charge des participants tout ou partie du coût des séminaires et sessions de formation qu'il organise, la formation proprement dite des stagiaires étant gratuite. TITRE IV : DES MODALITES D'EXERCICE DE LA PROFESSION 4. 1. Du domicile professionnel. L'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises doit disposer d'une étude adaptée à la bonne exécution des mandats qui lui sont confiés. L'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises ne peut, dans l'exercice de son mandat, sauf cas exceptionnel, recevoir ou s'entretenir avec ses interlocuteurs que dans un lieu garantissant la dignité et l'indépendance de ses fonctions. 4. 2. Des bureaux annexes. L'ouverture d'un bureau annexe par un administrateur judiciaire ou un mandataire judiciaire à la liquidation des entreprises est soumise à l'autorisation du commissaire du Gouvernement près la commission d'inscription et de discipline ayant procédé à son inscription. Toute création d'un bureau annexe nécessite : # la réunion sur place de moyens matériels et humains permettant la gestion quotidienne des mandats et missions reçus, ce qui suppose notamment la présence permanente sur place d'un collaborateur disposant d'une expérience et d'une compétence suffisantes ; # une présence effective suffisante du professionnel, pour accomplir personnellement les actes essentiels à la bonne exécution de ses mandats et assurer le contrôle du fonctionnement du bureau annexe ; # des moyens informatiques qui doivent permettre une centralisation au domicile professionnel des éléments relatifs aux mandats et aux opérations comptables correspondantes. 4. 3. De la carte professionnelle. Le président du Conseil national établit une carte professionnelle pour les administrateurs judiciaires et les mandataires judiciaires à la liquidation des entreprises inscrits sur les listes qui lui en font la demande. Cette carte reprend les mentions suivantes : nom, prénom, date et lieu de naissance, adresse professionnelle, adresse des bureaux annexes, date d'inscription sur les listes. Elle est complétée par une photo d'identité. La carte doit être restituée au commissaire du Gouvernement par l'intéressé radié ou retiré de la liste. 4. 4. De l'exercice sous forme de société. Lorsqu'un professionnel crée une société pour l'exercice de ses fonctions, quelle qu'en soit la forme, il doit cesser son activité individuelle et solliciter le transfert de ses mandats à la société. 4. 5. De l'exécution des mandats et missions. 1.L'administrateur ou le mandataire judiciaire à la liquidation des entreprises ne doit pas accepter un nombre de mandats ou de missions incompatible avec les moyens et l'organisation de son étude. 2. Le mandataire de justice doit mettre en place des méthodes de gestion rationnelles et efficaces afin de permettre un travail de qualité sur les mandats confiés. 3.L'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises doit veiller dans le cadre des mandats et missions qui lui sont confiés à effectuer ses diligences dans un délai raisonnable. Il doit se fixer pour règle de requérir le plus rapidement possible la clôture des procédures. 4. Le professionnel doit, dès qu'il en a la possibilité et à tout moment de la procédure, procéder à des répartitions de fonds au moins partielles, notamment au profit des créanciers. 5. Le professionnel doit veiller à toute étape de la procédure à informer les autorités de contrôle du déroulement des opérations au travers de comptes rendus cohérents et circonstanciés. Il veille en toutes circonstances à ce que l'exécution des décisions de justice soit assurée. 4. 5. 1. Des délégations de pouvoir. Le professionnel conserve personnellement l'entière responsabilité dans l'exécution des mandats et missions qui lui sont confiés. Il peut toutefois déléguer certaines des tâches qui lui incombent à des collaborateurs. Dans ce cas, le professionnel conserve la maîtrise de son dossier. La délégation qu'il accorde ne pourra être que partielle et sera constatée dans un écrit conservé à l'étude et annexé au document permanent de contrôle. 4. 5. 2. Des délégations et modalités de signature. 4. 5. 2. 1. Un administrateur judiciaire ou un mandataire judiciaire à la liquidation des entreprises ne peut déléguer sa signature qu'à un confrère ou à un collaborateur salarié. 4. 5. 2. 2. Toute délégation de signature à un confrère peut être donnée sans restriction. 4. 5. 2. 3. La délégation de signature à un collaborateur salarié intervient selon les modalités précisées ci-après : Le collaborateur doit être le salarié exclusif de l'administrateur judiciaire ou du
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mandataire judiciaire à la liquidation des entreprises ou celui de la personne morale dans le cadre de laquelle le professionnel exerce son activité. Le collaborateur doit exercer son activité sous l'autorité directe de l'administrateur judiciaire ou du mandataire judiciaire à la liquidation des entreprises et disposer d'une expérience et d'une compétence suffisantes. 4. 5. 2. 4. En matière bancaire, la délégation de signature obéit aux règles ci-après. Pour les opérations bancaires de crédit, la signature peut être déléguée à tout collaborateur répondant aux conditions ci-dessus. Pour les opérations bancaires de débit, le bénéficiaire de la délégation de signature ne doit pas être, sauf situation particulière, celui qui établit l'ordre de paiement. Une distinction doit par ailleurs être faite selon les comptes et les types de mission : 1. Comptes ouverts au nom d'un tiers : a) Mission de remplacement, interdiction bancaire du débiteur, poursuite d'activité en liquidation judiciaire : Le collaborateur salarié bénéficiaire d'une délégation de signature doit être associé au suivi de l'activité de l'entreprise. Par ailleurs, il est recommandé que la signature du professionnel ou de son délégataire, seule obligatoire, soit précédée du visa du chef d'entreprise ou, à défaut, d'un membre de la direction de l'entreprise. b) Mission d'assistance : Dans le cadre d'une mission d'assistance, tout moyen de paiement doit, sauf cas d'interdiction bancaire, faire l'objet de la double signature du chef d'entreprise ou de son délégataire et de l'administrateur judiciaire ou de son délégataire. La signature du chef d'entreprise ou de son délégataire doit normalement précéder celle de l'administrateur judiciaire ou de son délégataire. c) Mission de surveillance : L'administrateur judiciaire n'intervient pas dans le fonctionnement des comptes bancaires, sauf cas d'interdiction bancaire. 2. Comptes ouverts au nom du professionnel : a) Compte dit AGS ouvert à la Caisse des dépôts et consignations : Ce compte reçoit exclusivement les fonds de l'AGS et permet d'effectuer le règlement des créances salariales. Le collaborateur salarié à qui le mandataire judiciaire à la liquidation des entreprises délègue sa signature doit disposer d'une expérience spécifique en matière de règlement des créances salariales. b) Comptes dits général et de répartition ouverts à la Caisse des dépôts et consignations : Le compte général reçoit toutes les opérations d'encaissement ou de paiement dans la limite d'un encours maximum de 100 000 francs par affaire en fin de mois. Au-delà de ce montant, les fonds doivent être placés en compte à terme ou déposés sur le compte répartition. Le compte répartition reçoit toutes les opérations d'encaissement ou de paiement sans plafond de dépôt, compte tenu de la rémunération versée. Il offre une alternative au placement en compte à terme pour les fonds importants dont la durée de détention ne peut être estimée. Aucune délégation de signature n'est possible, sauf situation particulière, la délégation ne pouvant être alors donnée qu'à un collaborateur particulièrement expérimenté de l'administrateur judiciaire ou du mandataire judiciaire à la liquidation des entreprises. c) Comptes à terme ouverts à la Caisse des dépôts et consignations : Les comptes à terme, adossés au compte général ou au compte de répartition, permettent de rémunérer les fonds pour des durées supérieures à un mois. Les comptes à terme ouverts à la Caisse des dépôts et consignations ne pouvant être mouvementés qu'à partir et au bénéfice des comptes dits général ou de répartition, la signature peut être déléguée à tout collaborateur répondant aux prescriptions précisées sous b. d) Comptes ouverts dans d'autres établissements financiers : Un administrateur judiciaire ou un mandataire judiciaire à la liquidation des entreprises ne peut, à titre professionnel, ouvrir des comptes à son nom dans un autre établissement financier que la Caisse des dépôts et consignations que lorsqu'il est désigné dans le cadre d'un mandat amiable et, dans le seul cas où il a obtenu l'accord de son mandant, ceci conformément aux dispositions de l'article 68 du décret n° 85-1389 du 27 décembre 1985 Aucune délégation de signature ne peut intervenir sur ces comptes sauf nécessité impérieuse dûment établie. 4. 5. 3. Des intervenants extérieurs. Les administrateurs judiciaires, mandataires judiciaires à la liquidation des entreprises peuvent recourir à des intervenants extérieurs pour accomplir au profit de l'entreprise des tâches techniques non comprises dans les missions qui leur sont confiées en cas de nécessité dûment appréciée par l'autorité judiciaire compétente. Pour ce faire, ils doivent : # solliciter l'autorisation de l'autorité judiciaire compétente (sauf le cas où le recours à un tiers est expressément prévu par la loi ou du règlement) en présentant une requête motivée avec, dans la mesure du possible, un devis estimatif du coût de l'intervention sollicitée ; # veiller à ce que l'intervenant n'ait aucun lien de parenté ou de dépendance, directe ou indirecte, avec eux, ni avec les
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diverses parties à la procédure, et s'efforcer de procéder à une mise en concurrence préalable ; # soumettre préalablement à tout engagement financier, dans la mesure du possible, à l'autorité judiciaire la rémunération de l'intervenant (sauf le cas des professions réglementées pour lesquelles il existe un tarif). Le recours à un avocat n'est pas soumis à autorisation judiciaire préalable, sauf dans le cas où cette intervention comprend un honoraire de résultat ; l'autorisation judiciaire préalable est alors impérative ; # veiller, sous l'autorité du juge-commissaire, à ce que la rémunération versée corresponde effectivement à la prestation effectuée. Il est rappelé que les sommes versées par les professionnels aux officiers publics et ministériels, aux experts ou aux avocats ne leur seront remboursées que lorsque leur concours aura été reconnu nécessaire (art. 20 du décret n° 85-1390 du 27 décembre 1985). Enfin, lorsque les administrateurs judiciaires et mandataires judiciaires font appel à des personnes extérieures pour exécuter des tâches qui relèvent de la mission que leur a confiée le tribunal, ils ne doivent pas faire supporter la rémunération de ces intervenants par les procédures mais les rétribuer sur leurs propres émoluments qu'ils perçoivent en application du décret tarifaire du 27 décembre 1985 (art. 32 du décret n° 85-1390 du 27 décembre 1985). 4. 6. De la conservation des pièces et de la sécurité des dossiers. 4. 6. 1. Quel que soit le contexte souvent délicat dans lequel il accomplit ses mandats et missions, tout administrateur judiciaire ou mandataire judiciaire à la liquidation des entreprises doit veiller à ce qu'ils se déroulent dans les meilleures conditions de sécurité. Lorsqu'un administrateur judiciaire ou un mandataire judiciaire à la liquidation des entreprises est informé d'un risque d'atteinte aux personnes ou aux biens dans le cadre d'un mandat ou d'une mission qui lui est confié, il en informe le procureur de la République pour lui permettre de prendre toutes mesures utiles. 4. 6. 2. Les carnets de chèques, les lettres-chèques et tous autres moyens de paiement doivent être conservés dans un local non ouvert au public ou dans un coffre-fort. 4. 6. 3. Lorsque la comptabilité d'un administrateur judiciaire ou d'un mandataire judiciaire à la liquidation des entreprises est tenue par un moyen informatique, elle fait l'objet d'une sauvegarde au minimum hebdomadaire, qui devra être quotidienne dans le délai d'un an à compter de la notification des présentes règles. Elle doit être conservée dans un coffre-fort ignifugé ou à l'extérieur de l'étude de l'administrateur judiciaire ou du mandataire judiciaire à la liquidation des entreprises. Si, par exception, la comptabilité est tenue manuellement, les registres comptables doivent également être conservés dans un coffre-fort ignifugé. 4. 6. 4. Pour chaque mandat ou mission, les administrateurs judiciaires et les mandataires judiciaires à la liquidation des entreprises doivent assurer la conservation des pièces qu'il sont amenés à détenir et couvrir le cas échéant ce risque par la mise en place d'une police d'assurance. Pour les pièces essentielles du dossier (pièces de procédure, justificatifs des mouvements financiers sur les comptes ouverts au nom du professionnel), la durée est de dix ans à compter de la date de la reddition des comptes. Les archives doivent être conservées dans des conditions de sécurité satisfaisantes.S'il est fait appel à une société d'archivage, le coût de cette prestation sera supporté par le professionnel. Les pièces moins essentielles du dossier seront conservées dans les mêmes conditions durant les cinq ans qui suivent la date de reddition des comptes. Le coût éventuel d'archivage devra là encore être supporté par le professionnel. Les archives confiées au professionnel par l'entreprise sous mandat doivent être conservées dans les conditions de durée prévues par les lois et les règlements. Si l'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises a recours à une société d'archivage, cette prestation doit donner lieu à autorisation judiciaire qui sera sollicitée sur la base d'un devis préalable. Le coût correspondant peut alors être pris en charge par la procédure. Dans le cas où le professionnel assure lui-même l'archivage, il veillera à ce qu'il soit effectué dans des conditions de sécurité satisfaisantes. 4. 7. De l'administration provisoire. 4. 7. 1. Lorsqu'un administrateur judiciaire ou un mandataire judiciaire à la liquidation des entreprises est durablement dans l'impossibilité d'exercer ses fonctions, il en informe, ou en fait informer, sans délai le président du Conseil national. 4. 7. 2. Dès qu'il a connaissance que, pour quelque cause que ce soit, un administrateur judiciaire ou un mandataire judiciaire à la liquidation des entreprises est durablement dans l'impossibilité d'exercer ses fonctions, le président du Conseil national en avise le président du tribunal de grande instance dans le ressort duquel l'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises a son domicile professionnel et le procureur de la
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République près ce tribunal en vue de la désignation d'un administrateur provisoire. Il leur communique les noms de plusieurs professionnels susceptibles d'assurer cette mission. La mission de l'administrateur provisoire ainsi que sa durée sont définies par la décision de justice qui procède à sa désignation. 4. 7. 3. Le professionnel désigné comme administrateur provisoire ne peut en aucun cas, au terme de sa mission, poursuivre des mandats ou missions pour lesquels l'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises empêché avait été initialement désigné. Cette interdiction est néanmoins levée dès l'instant où l'empêchement ayant justifié la désignation de l'administrateur provisoire devient définitif. 4. 8. De la comptabilité. 4. 8. 1. Du répertoire. Le répertoire général centralisateur des mandats et missions prévu à l'article 59 du décret n° 85-1389 du 27 décembre 1985 est tenu manuellement ou par informatique. Ces modalités de tenue doivent : # garantir le respect des obligations de chronologie et de mise à jour de l'information devant y figurer ; # apporter les sécurités nécessaires au regard de la fiabilité de ce répertoire. Les modalités pratiques de tenue du répertoire sont exposées en annexe I. 4. 8. 2. Des obligations comptables. Tout administrateur judiciaire ou mandataire judiciaire à la liquidation des entreprises doit tenir de façon obligatoirement séparée : # une comptabilité générale relative au fonctionnement de son étude ; # une comptabilité dite spéciale, plus précisément définie ci-après propre aux mandats ou missions qui lui sont confiés et relatives aux opérations affectant les comptes de trésorerie ouverts à son nom, au titre desdits mandats ou missions. La comptabilité spéciale des administrateurs judiciaires et des mandataires judiciaires à la liquidation des entreprises est entièrement distincte de la comptabilité des personnes physiques ou morales pour lesquelles des mandats ou des missions leur sont confiés. Les règles de tenue de cette dernière comptabilité sont fonction du statut de la personne physique ou morale concernée ; en cette matière, les obligations de l'administrateur judiciaire ou du mandataire judiciaire à la liquidation des entreprises dépendent de la nature et de l'étendue de son mandat ou de sa mission. 4. 8. 3. De la comptabilité spéciale. La comptabilité spéciale des administrateurs judiciaires et des mandataires judiciaires à la liquidation des entreprises enregistre, pour chaque mandat ou mission reçue, l'ensemble des mouvements qui affectent les comptes ouverts au nom du professionnel à la Caisse des dépôts et consignations et, le cas échéant, par dérogation pour les mandats amiables, dans d'autres établissements financiers, ainsi que les opérations liées à ces mouvements. Elle enregistre également les fonds, effets, titres et autres valeurs appartenant à autrui et détenus par le professionnel et non encore comptabilisés sur les journaux de trésorerie. La comptabilité spéciale des administrateurs judiciaires et des mandataires judiciaires à la liquidation des entreprises doit être tenue par informatique, avec un logiciel de traitement dûment agréé, dans le délai d'un an à compter de la notification des présentes règles. Les règles régissant la comptabilité spéciale des administrateurs judiciaires et des mandataires judiciaires à la liquidation des entreprises sont précisées en annexe I. 4. 8. 4. De l'agrément des logiciels de comptabilité spéciale. La comptabilité peut être tenue par tout procédé technique approprié à condition que le procédé et les méthodes utilisés confèrent par eux-mêmes un caractère d'authenticité aux écritures comptables et permettent tous les rapprochements utiles et nécessaires à un contrôle. Le logiciel comptable utilisé doit permettre de générer à tout moment une balance de contrôles assurant l'égalité des totaux des mouvements des comptes individuels des mandats avec les totaux des journaux auxiliaires. Le logiciel de traitement automatisé de tenue de la comptabilité spéciale doit être agréé selon les règles fixées en annexe II. TITRE V : DE LA SURVEILLANCE DE L'ACTIVITE 5. 1. Des divers aspects de la surveillance et du contrôle. A travers leurs mandats et missions, les administrateurs judiciaires et les mandataires judiciaires à la liquidation des entreprises se voient confier la gestion de biens de tiers. Il s'agit là d'une responsabilité particulière qui justifie une surveillance spécifique de leur activité. Aussi, les administrateurs judiciaires et les mandataires judiciaires à la liquidation des entreprises sont-ils placés sous la surveillance des juridictions qui les désignent, plus spécialement du juge commissaire pour chacun de leurs mandats relatifs à une procédure collective, et sous celle du ministère public, pour l'exercice de l'ensemble de leur activité professionnelle. Ils sont également soumis à des inspections confiées à l'autorité publique, au contrôle du Conseil national et à celui d'un commissaire aux comptes. L'existence de ces mesures de surveillance, d'inspection et de contrôle ne
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doit jamais conduire l'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises à oublier qu'il doit, avant tout, dans le respect des dispositions légales et réglementaires et des règles professionnelles, exécuter les mandats et les missions qui lui sont confiés avec une efficacité maximale au service des intérêts dont il a la charge. Au cas, nécessairement exceptionnel mais possible, où les modalités d'accomplissement d'une mesure de contrôle lui apparaîtraient de nature à entraver gravement l'exécution des mandats ou des missions qui lui sont confiés ou à porter atteinte à son indépendance, l'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises concerné a le devoir d'en informer immédiatement le président du Conseil national. 5. 2. Des contrôles périodiques et occasionnels. 5. 2. 1. Les contrôles dont la charge est légalement confiée au Conseil national visent à s'assurer de la régularité des prestations fournies par le professionnel au regard des dispositions légales et réglementaires. Ils ont par ailleurs pour objet de veiller à la qualité du service rendu et de permettre l'amélioration des pratiques professionnelles. 5. 2. 2.L'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises désigné en qualité de contrôleur ne peut s'abstenir. De la même manière, le professionnel contrôlé ne peut récuser l'un ou l'autre de ses contrôleurs. Il peut être dérogé à ce principe en cas d'incompatibilité manifeste, à la requête motivée de l'une ou l'autre des parties, cette demande étant soumise à l'autorité qui a requis le contrôle. 5. 2. 3. Sauf le cas des contrôles occasionnels effectués de manière inopinée, la date du contrôle est fixée d'un commun accord entre contrôleurs et contrôlé ou, à défaut, par le président du Conseil national. 5. 2. 4.L'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises contrôleur doit apporter à sa mission le soin et la fermeté nécessaires à son efficacité sans se départir de la courtoisie due à un confrère. Il doit user de toute la discrétion compatible avec l'accomplissement de sa mission et veiller que les opérations de contrôle ne perturbent pas l'exécution des mandats et missions du professionnel contrôlé. Il est tenu au secret professionnel. L'administrateur judiciaire et le mandataire judiciaire à la liquidation des entreprises contrôlé doit recevoir les contrôleurs avec la même courtoisie et tout faire pour faciliter leur tâche. Pour l'accomplissement de leur mission, les contrôleurs ont accès à toutes informations qui leur sont nécessaires. Le professionnel contrôlé doit à cet égard respecter un parfait devoir de transparence. Le professionnel contrôlé doit notamment mettre à disposition des contrôleurs le dossier permanent concernant l'organisation et la gestion de son étude et se soumettre aux investigations menées par les contrôleurs dans le cadre des dispositions légales et réglementaires et de l'arrêté du 16 août 1999 régissant ces contrôles. 5. 2. 5. Les contrôleurs doivent donner connaissance à l'administrateur judiciaire ou au mandataire judiciaire à la liquidation des entreprises contrôlé des éventuelles anomalies relevées et lui faire toutes les recommandations leur apparaissant utiles. 5. 2. 6. Dans les trois mois qui suivent les opérations de contrôle, les contrôleurs adressent au professionnel contrôlé un projet de rapport pour permettre au contrôlé de formuler ses observations. Le rapport définitif, accompagné des observations éventuelles du professionnel contrôlé, est ensuite signé par les trois contrôleurs, dans le respect des dispositions réglementaires. Les contrôleurs avisent immédiatement les autorités mandantes, le président du Conseil national ainsi que le procureur de la République compétent de toute infraction constatée à l'encontre du professionnel contrôlé au regard de l'obligation de représentation des fonds. 5. 3. Du contrôle du commissaire aux comptes choisi par le professionnel sur le fondement de l'article 58, alinéa 2, du décret n° 85-1389 du 27 décembre 1985 modifié. 5. 3. 1. Il appartient à chaque professionnel de veiller à désigner dans les conditions prévues par l'article 58, alinéa 2, du décret n° 85-1389 du 27 décembre un commissaire aux comptes titulaire et un commissaire aux comptes suppléant. 5. 3. 2.L'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises : # tient l'ensemble des documents et pièces justificatives constituant sa comptabilité spéciale à la disposition du commissaire aux comptes afin que celui-ci soit en mesure de vérifier la conformité de ladite comptabilité spéciale aux règles en vigueur et de s'assurer de la représentation des fonds ; # facilite l'accès du commissaire aux comptes aux comptes ouverts au nom de tiers et à la comptabilité générale de l'étude. 5. 3. 3. En cas de différend entre le professionnel et son commissaire aux comptes, notamment sur le coût de son intervention, le professionnel en réfère au président du Conseil national. 5. 3. 4. Le professionnel doit aviser de toute décision de retrait de la liste son commissaire aux comptes en vue de
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l'établissement de l'attestation de vérification de comptabilité dans les conditions prévues par l'article 58-2 du décret n° 85-1389 du 27 décembre 1985 modifié. 5. 4. De l'inspection. Tout professionnel sollicité par un magistrat inspecteur régional ou par le magistrat coordonnateur des inspections pour l'assister dans le cadre de l'inspection d'un confrère ne peut s'abstenir. En cas d'incompatibilité manifeste, il doit adresser une demande motivée à l'autorité requérante qui sera amenée à trancher.
Article Annexe I
DES RÈGLES DE LA COMPTABILITÉ SPÉCIALE DES ADMINISTRATEURS JUDICIAIRES ET DES MANDATAIRES JUDICIAIRES À LA LIQUIDATION DES ENTREPRISES
I. # Définition des livres comptables
Aux termes des articles 59 et 60 du décret n° 85-1389 du 27 décembre 1985, la comptabilité spéciale des administrateurs judiciaires et des mandataires judiciaires à la liquidation des entreprises comprend les éléments suivants :
# un répertoire centralisateur des mandats reçus ;
# un livre-journal ;
# des journaux auxiliaires ;
# un grand livre ;
# des grands livres auxiliaires des comptes individuels ouverts pour chaque mandat ;
# un recueil des états périodiques ;
# des reçus pour les versements d'espèces.
La comptabilité spéciale doit permettre l'établissement des états trimestriels visés à l'article 63 du décret.
Une période comptable correspond à un trimestre civil.
1. 1. Le répertoire des mandats.
Le répertoire général enregistre et centralise tous les mandats et missions reçus, amiables ou judiciaires.
Les mandats et missions reçus doivent être inscrits par ordre chronologique de nomination.
A partir du répertoire général, des sous-répertoires par type de mandat ou par juridiction peuvent être établis.
Les mandats ou missions reçus avant l'entrée en vigueur du décret n° 98-1232 du 29 décembre 1998 peuvent également faire l'objet d'un ou plusieurs sous-répertoires spécifiques.
Il doit y avoir continuité dans la numérotation du répertoire général, quels que soient le mandat ou la mission reçus.
Le répertoire enregistre sous un numéro distinct chaque nouveau mandat ou mission, même si la
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même personne ou le même patrimoine faisaient l'objet d'un autre mandat ou mission précédemment mentionné.
Afférentes à un même dossier, deux missions, successives ou concomitantes, sont considérées comme distinctes, chacune devant recevoir un numéro d'ordre propre au répertoire général, dès lors qu'elles doivent faire l'objet de redditions de comptes séparées.
Toute reddition définitive de comptes au titre d'un mandat ou d'une mission donné entraîne l'obligation de mentionner la fin du mandat ou de la mission sur le répertoire.
1. 2. Le livre-journal.
Un journal est un état où figurent toutes les opérations comptables dans un ordre chronologique.
Le livre-journal retranscrit ou centralise les écritures des journaux auxiliaires. La récapitulation au livre-journal comprend les masses et non les soldes. La centralisation ne peut être effectuée qu'à la condition de conserver tous documents permettant de vérifier ces opérations jour par jour.
Les opérations des journaux auxiliaires sont retranscrites ou centralisées au moins une fois par mois sur le livre-journal.
Les écritures de centralisation doivent mentionner :
# la période mensuelle concernée ;
# la référence des journaux d'origine ;
# les totaux de la période, en débit, crédit et solde.
1. 3. Les journaux auxiliaires.
Les journaux auxiliaires mentionnent l'ensemble des opérations comptables des mandats ou missions, opération par opération, et par ordre chronologique.
Un journal auxiliaire est ouvert par compte de banque utilisé.
Un journal auxiliaire d'opérations diverses peut être ouvert pour les virements de compte à compte ou les opérations de régularisation.
Un état des effets, titres et valeurs doit être tenu.
Un journal de caisse est ouvert pour toutes les opérations en espèces.
Les journaux auxiliaires doivent être édités régulièrement, et au moins une fois par mois.
Les totaux des journaux auxiliaires doivent être reportés sur le livre-journal au moins une fois par mois.
1. 4. Le grand livre.
Le grand livre est utilisé pour le suivi des comptes de chaque mandat ou mission et retrace les mouvements des comptes individuels.
Le professionnel ouvre un compte individuel pour chaque mandat ou mission donnant lieu à mouvement de fonds.
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Le grand livre comprend l'ensemble des comptes individuels.
Il sert de base à l'établissement des états trimestriels.
Le grand livre peut être divisé en plusieurs grands livres auxiliaires, en regard de la tenue des sous-répertoires.
Le livre-journal et le grand livre classent un même ensemble d'écritures dans un ordre propre à chacun d'eux.
Chaque écriture portée au livre-journal ou dans les journaux auxiliaires figure également dans les comptes individuels.
Il y a égalité entre les totaux en mouvement et en solde du livre-journal et les totaux du grand livre.
1. 5. Les grands livres auxiliaires.
Ils sont constitués par les comptes individuels ouverts pour chaque mandat ou mission.
A chaque sous-répertoire est associé un grand livre auxiliaire.
L'ensemble des grands livres auxiliaires constitue le grand livre.
Chaque mois les opérations des grands livres auxiliaires sont centralisées sur le grand livre.
Les dispositions concernant les écritures portées sur les grands livres auxiliaires sont les mêmes que celles applicables pour le livre-journal ou les journaux auxiliaires.
Un compte individuel ne peut être retiré du grand livre que si son solde est nul et si la reddition des comptes a été déposée au cours du trimestre précédent.
Ce retrait ne peut se faire sans une édition préalable de toutes lesécritures portées sur ce compte.
Tout compte individuel, même archivé, doit pouvoir faire l'objet d'une présentation sur support papier dans les délais de prescription légaux.
Au terme de chaque trimestre, les grands livres auxiliaires doivent être édités avec une totalisation des opérations du trimestre de tous les comptes, en débit et en crédit, tant en cumuls qu'en soldes.
1. 6. Les états périodiques.
1. 6. 1. Les états trimestriels.
Les états trimestriels doivent mentionner, conformément à l'article 63 du décret n° 85-1389 du 27 décembre 1985, pour tous les mandats ou missions n'ayant pas fait l'objet d'une reddition des comptes avant la fin du trimestre précédent :
# le numéro de l'affaire au répertoire ;
# le nom de l'affaire ;
# le nom de la juridiction mandante ou la qualité du mandant ;
# la date de la décision de désignation ;
# la nature du mandat ou de la mission ;
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# les mouvements comptables enregistrés pour l'affaire depuis l'origine ;
# les mouvements et le solde par compte ouvert à la Caisse des dépôts et consignations et dans d'autres établissements financiers ;
# l'ensemble des fonds, effets, titres ou valeurs appartenant à autrui ;
# les espèces disponibles aux mains du professionnel ;
# les intérêts produits par un compte global rémunéré au profit de chaque entreprise (art. 68-1 du décret n° 98-1232 du 29 décembre 1998).
Les états trimestriels doivent être conservés pendant dix ans.
Si l'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises tient plusieurs sous-répertoires, il doit fournir un état trimestriel par sous-répertoire, avec un état centralisateur des journaux auxiliaires (Grand Livre arrêté au trimestre).
Le numéro de l'affaire au répertoire devant figurer sur ces états trimestriels correspond au numéro d'ordre du répertoire général.
L'ensemble des états établis au titre de chaque trimestre est constitué par l'ensemble des comptes individuels de tous les mandats en cours et n'ayant pas fait l'objet d'une reddition des comptes avant la fin du trimestre précédent.
Les mouvements comptables enregistrés pour l'affaire depuis l'origine correspondent au cumul de tous les mouvements depuis l'ouverture du dossier. En cas de changement de logiciel, le nouveau programme doit être à même de reprendre au minimum les cumuls, mandat par mandat, et non les soldes, des opérations enregistrées avant le transfert, si ce n'est l'intégralité desdites opérations.
L'ensemble des fonds, effets, titres ou valeurs appartenant à autrui sont les fonds, effets, titres ou valeurs mobilières détenus par le professionnel et non encore comptabilisés sur les journaux de trésorerie.
Les effets, titres ou valeurs sont normalement évalués sur la base de leur valeur d'acquisition. Leur montant par mandat ou mission apparaît sur une ligne spéciale des états trimestriels.
Lorsqu'un administrateur judiciaire ou un mandataire judiciaire à la liquidation des entreprises dépose des fonds à la Caisse des dépôts et consignations sur un compte global rémunéré, il fait apparaître une fois par trimestre et à la fin de sa mission, en comptabilité spéciale et sur les états trimestriels, sous une ligne séparée, et au titre de chaque mandat ou mission, les cumuls des intérêts produits et comptabilisés.
Les intérêts sont affectés à chaque mandat ou mission au prorata des soldes moyens tels qu'ils apparaissent sur la comptabilité spéciale.
Les mouvements comptables d'opérations intervenues postérieurement à une fin de mission sont enregistrés dans un compte spécial de liaison.
Un dossier compte de liaison regroupant les écritures relatives à ces opérations est ouvert à cet effet et figure à l'état trimestriel selon la même disposition que tout autre mandat.
Les émoluments perçus après l'achèvement d'un mandat qui n'est plus mentionné à l'état trimestriel doivent transiter en écritures par le dossier compte de liaison.
1. 6. 2. Les états de contrôle.
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Le total des sommes figurant sur les différents états trimestriels établis à une même date doit être récapitulé sur un état de synthèse qui doit faire apparaître le solde global de l'ensemble des mandats en cours.
Ce solde doit correspondre au total des soldes des comptes de trésorerie après rapprochement.
1. 7. Les carnets de reçus pour les remises d'espèces.
Ces reçus doivent être numérotés et datés. Ils doivent comporter les dispositions prévues à l'article 65 du décret n° 85-1389 du 27 décembre 1985.
Les fonds reçus en espèces sont déposés immédiatement en banque.A défaut, un journal de caisse doit être ouvert et tenu au jour le jour. Aucun règlement en espèces ne doit intervenir sans transiter par un organisme financier.
Les écritures retraçant ces opérations mentionnent le numéro des reçus. II. # Description du jeu des écritures
2. 1. Les caractéristiques de l'écriture.
Chaque écriture comporte :
# le nom de l'affaire ;
# la date de l'opération ;
# le numéro de l'écriture (reporté sur la pièce justificative) ;
# le libellé de l'opération avec le nom de l'émetteur de la recette ou du bénéficiaire du paiement ;
# le montant de l'opération ;
# l'indication du journal concerné.
2. 2. La saisie des écritures.
Chaque écriture comptable doit être enregistrée simultanément au compte individuel du mandat et dans un journal auxiliaire.
Chaque écriture comptable doit s'appuyer sur une pièce justificative constituée par un document écrit qui doit être dûment référencé.
Chaque écriture comptable comporte le numéro du compte individuel mouvementé, en correspondance avec le numéro de répertoire.
Le libellé de l'écriture doit permettre d'identifier clairement l'opération.
L'organisation comptable et informatique de l'étude doit permettre, à partir des indications des journaux auxiliaires ou des comptes individuels, de retrouver rapidement les pièces justificatives correspondantes.
La comptabilité est tenue au jour le jour.
Les mouvements comptables sont enregistrés chronologiquement.
Les opérations de trésorerie sont en principe comptabilisées à l'émission du paiement ou au dépôt en
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banque du titre de paiement et il est édité régulièrement, à tout le moins une fois par mois, des états de rapprochement par comparaison avec les soldes bancaires.
Le pointage des bordereaux de banques doit être exécuté quotidiennement ou à chaque relevé, sauf à pouvoir justifier de l'impossibilité d'y satisfaire.
La comptabilité et le logiciel utilisés doivent être à même de permettre d'établir ces états de rapprochement à tout moment.
2. 3. Les éditions.
Les états comptables centralisateurs doivent être édités régulièrement et au minimum une fois par période comptable.
Les comptes individuels de chaque mandat doivent pouvoir, à tout instant, être consultés sur papier ou sur écran.
Les documents édités doivent comporter, pour chaque écriture, les mentions visées au 2. 1.
L'édition d'un compte doit toujours pouvoir être faite à la demande.
2. 4. La validité des écritures comptables.
La tenue des documents comptables ne doit faire apparaître ni blanc ni altération d'aucune sorte.
Les écritures saisies en informatique ne font partie du système comptable qu'après validation.
Ainsi, toute séquence de saisie doit être en principe éditée sous forme de brouillard de saisie, qui constitue un état de contrôle.
La validation des écritures saisies consiste à figer les différents éléments de l'écriture visés au 2. 1 de façon telle que toute modification ultérieure de l'un de ses éléments soit impossible.
Aucun effacement d'écriture n'est autorisé. Une annulation ne peut intervenir après validation que par contre-passation d'une écriture rectificative.
La validation doit intervenir avant la clôture de chaque période comptable. III. # Comptabilité en euros
La comptabilité doit être tenue en langue française.
A partir du 1er janvier 1999, les documents comptables peuvent être établis en euros. Ce choix est irrévocable. Les règles de conversion et d'arrondis doivent être respectées.
3. 1. Rappel des règles.
On ne peut convertir directement deux monnaies nationales participant à l'euro entre elles.
Exemple : la conversion francs-florins doit s'établir d'abord de francs en euros, puis d'euros en florins.
On ne peut convertir une monnaie nationale participant à l'euro directement en monnaie externe à la zone euro.
Exemple : la conversion francs-dollars doit s'établir d'abord de francs en euros, puis d'euros en dollars.
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Le taux de conversion de l'euro en ex monnaie nationale doit comporter six chiffres significatifs, soit cinq chiffres après la virgule pour le franc français (en ce qui concerne la livre irlandaise, il faut tenir compte de six chiffres après la virgule, puisque cette monnaie a une valeur unitaire supérieure à l'euro).
Il est obligatoire d'utiliser trois chiffres après la virgule et d'arrondir au cent supérieur lorsque la troisième décimale est supérieure ou égale à 5, au cent inférieur si la troisième décimale est inférieure à 5.
Le règlement communautaire interdit l'usage du taux inverse, ce qui oblige à effectuer une division au lieu d'une multiplication.
3. 2. Traitement des écarts.
Des écarts peuvent apparaître entre la somme initiale et la somme reconvertie en francs dans une opération francs-euros-francs. Ils ne peuvent excéder 3 centimes.C'est à l'établissement financier de traiter ce problème.
Des écarts peuvent apparaître entre une addition de valeurs converties individuellement en euros et le total converti en euros (c'est l'exemple de la remise de plusieurs chèques émis en euros et convertis dans la comptabilité en francs, la banque portant le total de la remise au compte).
Il est nécessaire de comptabiliser cet écart et de l'intégrer dans l'ajustement des comptes à l'intérieur de la comptabilité spéciale de l'étude. Cet écart devra être affecté à l'un des comptes individuels mouvementés.
3. 3. Conversion des historiques.
Lors du passage de la comptabilité en euros, au plus tard le 1er janvier 2002, les historiques devront être convertis en euros, en respectant les règles d'arrondis pour chaque opération concernée.
L'arrondi global résultant de ces conversions doit être individualisé dans un compte spécifique.
Article Annexe II
DE L'AGRÉMENT DU CONSEIL NATIONAL
1. Sont agréés, pour la tenue de la comptabilité spéciale des administrateurs judiciaires et des mandataires judiciaires à la liquidation des entreprises, les logiciels de traitement automatisés permettant aux professionnels utilisateurs de respecter l'ensemble des obligations légales auxquelles ils sont soumis en matière de comptabilité spéciale et conformes aux dispositions de la loi n° 78-17 du 6 janvier 1978, relative à l'informatique, aux fichiers et aux libertés.
Ces logiciels doivent répondre aux prescriptions arrêtées par le Conseil national.
Pour l'élaboration de celles-ci, le Conseil national désigne une commission comprenant :
# les membres de la commission informatique du Conseil national ;
# un expert en informatique choisi sur la liste des experts près la Cour de cassation, avec un suppléant ;
# un commissaire aux comptes choisi sur la liste établie en application du deuxième alinéa de
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l'article 58 du décret n° 85-1389 du 27 décembre 1985, avec un suppléant, après avis de la Compagnie nationale des commissaires aux comptes.
Cette commission rédige un cahier des charges soumis à l'approbation du ministre de la justice et arrêté par le Conseil national.
2. La conformité des logiciels de traitement automatisé de la comptabilité spéciale des administrateurs judiciaires et des mandataires judiciaires à la liquidation des entreprises aux dispositions de la loi n° 78-17 du 6 janvier 1978, relative à l'informatique, aux fichiers et aux libertés, et au cahier des charges arrêté par le Conseil national est constatée par une attestation délivrée par un collège de deux experts composé :
# d'un expert en informatique ;
# d'un commissaire aux comptes.
Les listes des experts en informatique et des commissaires aux comptes habilités à cet effet sont arrêtées par le Conseil national après, s'agissant des commissaires aux comptes, avis de la Compagnie nationale des commissaires aux comptes.
Pour être habilité :
# un expert en informatique doit figurer à ce titre sur une liste établie par la Cour de cassation ;
# un commissaire aux comptes doit être inscrit sur la liste prévue à l'article 219 de la loi n° 66-537 du 24 juillet 1966 et figurer sur la liste établie en application du deuxième alinéa de l'article 58 du décret n° 85-1389 du 27 décembre 1985.
Tout commissaire aux comptes ou expert en informatique inscrit sur les listes mentionnées ci-dessus doit être dépourvu de tout lien, de quelque nature que ce soit, avec un concepteur développeur d'un logiciel de traitement automatisé de la comptabilité spéciale des administrateurs judiciaires et mandataires judiciaires à la liquidation des entreprises. Il souscrit à cet effet un engagement sur l'honneur préalablement à son inscription.
3.L'attestation de conformité est délivrée par le collège des deux experts. Elle doit identifier avec précision les références du logiciel, notamment son nom et le numéro de sa version. Lorsque le logiciel comprend des applications extérieures à la tenue de la comptabilité spéciale, l'attestation ne porte que sur le module de traitement automatisé de la comptabilité spéciale.
Une attestation nouvelle est nécessaire préalablement à la mise en service d'une nouvelle version du logiciel ou, si le logiciel comprend des applications extérieures à la tenue de la comptabilité spéciale, d'une nouvelle version du logiciel affectant le module de traitement automatisé de la comptabilité spéciale.
4. Le concepteur développeur d'un logiciel de traitement automatisé de la comptabilité spéciale choisit sur les listes établies en application du paragraphe 2 ci-dessus, un expert en informatique et un commissaire aux comptes qu'il charge de procéder, à ses frais, à l'examen de conformité.
5. Pour l'examen de conformité, les experts disposent d'un droit d'accès, en présence du concepteur développeur sauf dispense expresse de celui-ci, à la documentation relative aux analyses, à la programmation et à l'exécution des traitements en vue de procéder aux tests qui leur sembleront nécessaires.
6. Le collège d'experts établit un rapport relatant ses diligences et comportant, le cas échéant, une attestation de conformité. Il en adresse un exemplaire au Conseil national.
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Le Conseil national s'assure, au vu de ce rapport, du respect des règles de désignation du collège d'experts et de la présence d'une attestation de conformité exempte de réserve et permettant d'identifier avec précision le logiciel concerné.
Le Conseil national délivre alors un récépissé de dépôt de l'attestation de conformité et le transfert au concepteur développeur.
Lors de chaque installation du système de traitement automatisé de tenue de la comptabilité spéciale, le concepteur développeur délivre une copie du récépissé de dépôt de l'attestation de conformité à l'administrateur judiciaire ou au mandataire judiciaire à la liquidation des entreprises concerné qui doit la conserver pour la présenter, le cas échéant, à son commissaire aux comptes ou aux contrôleurs si ceux-ci lui en font la demande.
Toute nouvelle version du logiciel (affectant, si celui-ci comprend plusieurs applications, le module de traitement automatisé de la comptabilité spéciale) qui ne fait pas l'objet une nouvelle attestation de conformité d'un collège d'experts entraîne la caducité du récépissé délivré par le Conseil national.
7. Sous réserve des dispositions transitoires prévues au paragraphe 9 ci-après, l'administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises concerné informe par lettre recommandée avec accusé réception le Conseil national dès la mise en service à son étude (ou dans un bureau annexe) d'un logiciel de traitement automatisé de tenue de comptabilité spéciale en indiquant ses références précises ainsi que celles du récépissé de dépôt de l'attestation de conformité.
8. Les présentes dispositions s'appliquent même lorsque la comptabilité spéciale est tenue en tout ou partie par un centre de traitement extérieur à l'étude de l'administrateur judiciaire ou du mandataire judiciaire à la liquidation des entreprises.
9. Les logiciels de traitement automatisé de tenue de comptabilité spéciale en fonctionnement à la date d'entrée en vigueur des présentes dispositions devront être soumis à la procédure prévue ci-dessus et recevoir leur attestation de conformité au plus tard dans un délai de dix-huit mois après l'arrêté de ces règles.
ANNEXE 8-3 (ANNEXE À L'ARTICLE A. 814-2)
Article Annexe 8-3
RÈGLEMENT FIXANT LES MODALITÉS APPLICABLES AUX ÉLECTIONS DES ADMINISTRATEURS JUDICIAIRES ET MANDATAIRES JUDICIAIRES AU CONSEIL NATIONAL PRÉVU À L'ARTICLE L. 814-2 DU CODE DE COMMERCE
Rappel des textes applicables Article R. 814-5 du code de commerce
Le Conseil national des administrateurs judiciaires et des mandataires judiciaires est composé de seize membres, huit membres représentant les administrateurs judiciaires et huit membres représentant les mandataires judiciaires. Les membres sont élus au scrutin de liste à la représentation proportionnelle par deux collèges, l'un composé des personnes physiques inscrites
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sur la liste nationale des administrateurs judiciaires, l'autre composé des personnes physiques inscrites sur la liste nationale des mandataires judiciaires. Chaque collège élit huit membres. Le vote a lieu sans panachage ni vote préférentiel. Les membres du Conseil national sont élus pour une période de quatre ans, renouvelable une fois. Ils ne sont rééligibles pour un mandat supplémentaire qu'après un intervalle de quatre ans, après l'expiration, le cas échéant, de leur second mandat.
Article R. 814-6 du code de commerce
Le bureau du Conseil national organise l'élection. Il détermine les modalités applicables, notamment celles du vote par correspondance, autres que celles prévues par le présent titre, selon des règles soumises à l'approbation du garde des sceaux, ministre de la justice. Chaque déclaration de candidature indique le titre de la liste présentée. Elle comporte les nom et prénoms du candidat, son domicile professionnel, sa signature, la date à laquelle il a été inscrit sur la liste nationale, ou, lorsqu'il s'agit d'un mandataire judiciaire, la liste régionale si son inscription sur celle-ci est antérieure à l'établissement de la liste nationale. Chaque liste comprend au moins quatre candidats. Nul ne peut être candidat sur plus d'une liste.
Article R. 814-7 du code de commerce
Il est attribué à chaque liste autant d'élus que le nombre de suffrages lui revenant contient de fois le quotient électoral. Le quotient électoral est égal au nombre total des suffrages obtenus par les différentes listes divisé par le nombre de délégués à élire. Au cas où aucun siège ne peut être pourvu ou s'il reste des sièges à pourvoir, les sièges restants sont attribués sur la base de la plus forte moyenne.A cet effet, le nombre de voix obtenues par chaque liste est divisé par le nombre, augmenté d'une unité, des sièges attribués à la liste. Les différentes listes sont placées dans l'ordre décroissant des moyennes ainsi obtenues. Le premier siège non pourvu est attribué à la liste ayant la plus forte moyenne. Il est procédé successivement à la même opération pour chacun des sièges non pourvus, jusqu'au dernier. Dans le cas où deux listes ont la même moyenne et où il ne reste qu'un siège à pourvoir, il est attribué à la liste qui a obtenu le plus grand nombre de voix. Si deux listes ont obtenu le même nombre de voix, le candidat le plus âgé est proclamé élu.
Processus électoral
La date du scrutin et son heure de clôture sont fixés par le bureau du Conseil national. Six semaines avant la date du scrutin, le secrétaire de la commission nationale d'inscription et de discipline des administrateurs judiciaires et de la commission nationale d'inscription et de discipline des mandataires judiciaires transmet au président du Conseil national la liste de chacun des deux collèges du corps électoral. Après transmission de ces listes et au moins cinq semaines avant la date du scrutin, le président du Conseil national avise les membres du corps électoral de la date des élections et invite les candidats à se faire connaître. Les déclarations de candidature sont remises au Conseil national contre récépissé ou adressées par lettre recommandée avec demande d'avis de réception au plus tard trois semaines avant la date du scrutin. Au plus tard quinze jours avant la date du scrutin, le président du Conseil national avise les électeurs des modalités des opérations électorales, de l'heure de clôture du scrutin ainsi que de la date et du lieu des opérations de dépouillement. Il adresse à chaque administrateur judiciaire et mandataire judiciaire figurant sur la liste des électeurs, les bulletins de vote le concernant. Pour chaque collège, il est établi un bulletin de vote par liste soumise au suffrage. Le vote a lieu par correspondance à compter de la réception des bulletins envoyés par le président du Conseil national. Les bulletins doivent être parvenus au Conseil national au plus tard le jour du scrutin, et avant l'heure de clôture. Les votes reçus postérieurement sont nuls. Chaque bulletin est remis au Conseil national contre récépissé ou envoyé par la voie postale sous double enveloppe.L'enveloppe intérieure, qui contient le bulletin de vote, doit être fermée et ne porter aucune marque distinctive.L'enveloppe extérieure, également fermée, contient l'enveloppe intérieure et comporte les mentions élections et, selon le collège électoral concerné, administrateur judiciaire ou mandataire judiciaire. Elle doit porter, en outre, la signature
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de l'électeur avec l'indication de ses nom et prénom. Les bulletins contenus dans des enveloppes irrégulières sont nuls et toute enveloppe intérieure contenant plus d'un bulletin, ou un bulletin raturé, modifié ou surchargé, correspond à un vote nul. Au fur et à mesure de leur arrivée, les enveloppes extérieures sont placées dans une urne. Immédiatement après la clôture du scrutin, les membres du bureau du Conseil national procèdent aux opérations de dépouillement, en présence de tout administrateur judiciaire ou mandataire judiciaire intéressé. Après leur retrait de l'urne, les enveloppes extérieures sont ouvertes, le nom de l'électeur est pointé sur la liste des électeurs et l'enveloppe intérieure réintroduite dans une urne pour les administrateurs judiciaires et dans une autre pour les mandataires judiciaires. Lorsque toutes les enveloppes intérieures ont été replacées, les bulletins sont alors dépouillés et les votes décomptés conformément aux dispositions de l'article R. 814-7 du code de commerce.L'attribution d'élus pour chaque liste est effectuée dans l'ordre de la liste. Les résultats sont aussitôt proclamés et un procès-verbal de ces opérations est établi par le bureau du Conseil national.
ANNEXE 8-4 (ANNEXE À L'ARTICLE A. 814-3)
Article Annexe 8-4
RÈGLEMENT FIXANT LES MODALITÉS APPLICABLES AUX ÉLECTIONS DES ADMINISTRATEURS JUDICIAIRES ET DES MANDATAIRES JUDICIAIRES AU CONSEIL D'ADMINISTRATION DE LA CAISSE DE GARANTIE INSTITUÉE À L'ARTICLE L. 814-3
ÉLECTIONS DES MEMBRES DU CONSEIL D'ADMINISTRATION DE LA CAISSE DE GARANTIE Rappel des textes
Article 72 du décret n° 85-1389 du 27 décembre 1985 (modifié par décret n° 2004-518 du 10 juin 2004) : La caisse de garantie est gérée par un conseil d'administration composé de douze membres, dont six administrateurs judiciaires et six mandataires judiciaires, inscrits sur les listes nationales. Ces membres sont élus pour cinq ans. Les six administrateurs judiciaires sont élus par les personnes physiques inscrites sur la liste nationale des administrateurs judiciaires et les six mandataires judiciaires par celles inscrites sur la liste nationale des mandataires judiciaires. En cas de vacance d'un siège pour quelque cause que ce soit, et notamment lorsque le professionnel concerné a obtenu son transfert d'inscription de la liste nationale des administrateurs judiciaires sur la liste nationale des mandataires judiciaires ou réciproquement, le siège est pourvu par le premier candidat non élu dans la catégorie professionnelle concernée.S'il n'y a plus de candidat non élu, il est procédé à une élection au scrutin uninominal majoritaire à un tour. Dans tous les cas, les fonctions des nouveaux membres expirent à la date à laquelle auraient cessé celles des membres qu'ils remplacent. Les élections sont organisées par le conseil d'administration de la caisse de garantie qui détermine les modalités qui leur sont applicables selon des règles soumises à l'approbation du ministre de la justice. Le bureau chargé du dépouillement des votes comprend le président, le vice-président, le secrétaire et le trésorier du conseil d'administration de la caisse. Les candidats qui, dans chaque collège, ont obtenu le plus grand nombre de voix sont élus. Les réclamations sont portées devant la cour d'appel de Paris. Les membres de la caisse ne sont rééligibles qu'une fois. Sous réserve des dispositions du présent article, les règles de l'article 3 sont applicables à l'élection des membres du conseil d'administration.
Article 3 du décret n° 85-1389 du 27 décembre 1985 (modifié par le décret n° 2004-518 du 10 juin 2004) : L'élection des administrateurs judiciaires et de leurs suppléants, membres de la commission
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nationale, est organisée par le Conseil national des administrateurs judiciaires et des mandataires judiciaires. Elle a lieu au scrutin majoritaire plurinominal à un tour. Ne peuvent prendre part aux opérations électorales les administrateurs judiciaires qui, depuis la date à laquelle a été arrêtée la liste, ont fait l'objet d'une suspension provisoire, d'une interdiction temporaire, d'une radiation ou d'un retrait de la liste.L'électeur vote pour trois candidats titulaires et leurs suppléants. Il barre sur le bulletin qui lui a été adressé le nom de ceux qu'il ne retient pas. Les bulletins sont valables même s'ils portent moins de noms qu'il y a de membres à élire, seuls sont comptés les trois premiers noms inscrits, dans l'ordre de préférence indiqué par l'électeur. Tout bulletin surchargé est nul.
Sont élus les trois candidats titulaires et leurs suppléants qui ont obtenu le plus grand nombre de voix. En cas d'égalité des voix, le plus âgé des candidats titulaires l'emporte.
Processus électoral
Les élections ont lieu au cours du quatrième trimestre de l'année à l'issue de laquelle expirent les mandats en cours. En vue de la mise en œuvre des élections des membres de son conseil d'administration, la caisse de garantie avise les professionnels des élections à intervenir et sollicite les candidatures par courrier adressé à tous les administrateurs judiciaires et les mandataires judiciaires au plus tard le 1er octobre. La date du scrutin et son heure de clôture sont fixés par le bureau du Conseil national. En même temps, elle demande aux commissions nationales communication de la liste des administrateurs judiciaires et des mandataires judiciaires inscrits et des professionnels ne pouvant prendre part aux opérations électorales en application de l'alinéa 2 de l'article 3 du décret n° 85-1389 du 27 décembre 1985. Les candidatures sont formulées par lettre recommandée avec avis de réception et doivent être parvenues à la caisse de garantie au plus tard le 20 octobre. Les candidatures sont individuelles. Au plus tôt le 5 novembre et au plus tard le 15 novembre, la caisse de garantie avise par courrier simple chaque administrateur judiciaire et chaque mandataire judiciaire figurant sur la liste des électeurs des modalités des opérations électorales ainsi que de la date et du lieu des opérations de dépouillement.A ce courrier sont joints un exemplaire de la liste des candidats, établie par ordre alphabétique et un bulletin de vote vierge portant les numéros 1 à 6, valant ordre de préférence ainsi que les enveloppes préétablies nécessaires à l'expression du vote. Cet envoi ouvre le scrutin. Chaque électeur inscrit les candidats qu'il choisit, dans l'ordre de préférence indiqué par le bulletin de vote. Le vote a lieu par correspondance. Les bulletins doivent être parvenus à la caisse de garantie au plus tard le 30 novembre, date de clôture du scrutin. Les votes reçus par la caisse de garantie sont, à réception, placés dans une urne verrouillée et conservés ainsi jusqu'au dépouillement. Chaque bulletin est envoyé sous double enveloppe : l'enveloppe intérieure, qui contient le bulletin de vote, doit être fermée et ne porter aucune marque distincte ; l'enveloppe extérieure comportant la mention élections porte le nom de l'électeur et contient l'enveloppe intérieure. Les bulletins contenus dans des enveloppes irrégulières sont nuls. En application de l'article 3 du décret n° 85-1389 du 27 décembre 1985, les bulletins sont valables s'ils portent plus ou moins de noms qu'il y a de membres à élire. Pour le cas où un bulletin porterait plus de six noms, seuls sont pris en compte les six premiers noms inscrits. Dans les quinze jours de la clôture du scrutin, le bureau de la caisse de garantie procède aux opérations de dépouillement en présence de tout administrateur judiciaire ou mandataire judiciaire intéressé.L'urne contenant les enveloppes de vote est ouverte, puis les enveloppes extérieures sont ouvertes, le nom de l'électeur est pointé sur la liste des électeurs et l'enveloppe intérieure introduite dans une urne. Les bulletins sont ensuite dépouillés et décomptés. Les résultats sont aussitôt proclamés et un procès-verbal de ces opérations est établi par le secrétaire de la caisse de garantie.
ANNEXE 8-5 (ANNEXE À L'ARTICLE A. 814-4)
Article Annexe 8-5
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Observations préliminaires
Le rapport commun qui sera rédigé à l'issue des opérations de contrôle comportera les renseignements suivants : 1. Le contrôle de Me, administrateur judiciaire ou mandataire au redressement et à la liquidation des entreprises à, a été réalisé par : Me, administrateur judiciaire ou mandataire judiciaire à, Me, administrateur judiciaire ou mandataire judiciaire à, M, commissaire aux comptes inscrit près la cour d'appel de 2. Les opérations de contrôle ont commencé le et se sont achevées le 3. Les autorités et les personnes suivantes ont-elles été amenées à formuler des observations : Les présidents des juridictions du premier ressort ? oui non Le procureur général ? oui non Le commissaire aux comptes du professionnel ? oui non Le trésorier-payeur général ? oui non L'AGS ? oui non 4. Le ou les procureur (s) de la République près le tribunal de grande instance dans le ressort duquel le professionnel a son domicile professionnel et, le cas échéant, son ou ses bureaux annexes a-t-il (ont-ils) été avisé (s) de la réalisation du contrôle ? oui non
PREMIÈRE PARTIE
Contrôle de l'étude
1. 1. Etat descriptif de l'organisation et de la gestion de l'étude
1. 1. 1. Document permanent. Le contrôle de l'organisation générale et de la gestion de l'étude se fait à partir des documents et des informations communiqués par le professionnel contrôlé, consignées dans un document permanent tenu par lui, qui est présenté lors des contrôles successifs pour être vérifié. Préalablement à chaque contrôle, le professionnel contrôlé établit une fiche d'actualisation qui reste annexée au document permanent. Si les modifications apportées à l'organisation de l'étude le justifient et au moins tous les six ans un nouveau document permanent se substitue au précédent et aux fiches d'actualisation qui le complètent. Le document permanent et les fiches d'actualisation sont signés et datés par le professionnel. Ce document ou ces fiches sont remis aux contrôleurs qui les transmettent avec le rapport de contrôle aux autorités mentionnées au premier alinéa de l'article 54-22 du décret n° 85-1389 du 27 décembre 1985 relatif aux administrateurs judiciaires, mandataires judiciaires au redressement et à la liquidation des entreprises et experts en diagnostic d'entreprise. Un exemplaire de ces documents est conservé par le Conseil national et le ministère de la justice. 1. 1. 1. 1. Structure d'exercice et moyens humains. 1. 1. 1. 1. 1. Le (s) professionnel (s). 1. 1. 1. 1. 1. 1. Date et lieu de naissance. 1. 1. 1. 1. 1. 2. Date d'inscription sur la liste : # nationale des administrateurs judiciaires : # au titre de l'option civile ; # au titre de l'option commerciale ; # régionale des mandataires judiciaires à la liquidation des entreprises ; # nationale des mandataires judiciaires au redressement et à la liquidation des entreprises. Date de retrait de la liste. 1. 1. 1. 1. 2. Structure juridique de l'étude. 1. 1. 1. 1. 2. 1. Mode d'exercice de l'activité. Individuel : # date d'installation ; # création ou reprise d'une étude déjà existante ; # nom du prédécesseur. Société civile professionnelle : # date de constitution ; # répartition du capital. Société d'exercice libéral : # date de constitution ; # répartition du capital. 1. 1. 1. 1. 2. 2. Recours à une société civile de moyens. Date de constitution. Mode de fonctionnement (mise à disposition de locaux, de matériel, de personnel, de prestations de services, etc.). 1. 1. 1. 1. 2. 3. Activité. Exercée à titre exclusif : oui non Si non, liste des activités annexes (art.L. 811-10, L. 812-8 du code de commerce et 38 de la loi n° 85-99 du 25 janvier 1985). 1. 1. 1. 1. 2. 4. Domicile professionnel. Adresse. Adresse électronique. Téléphone. Fax. 1. 1. 1. 1. 2. 5. Bureaux annexes. Nombre. Adresse (s). Date d'ouverture. Nom et qualité des personnes qui assurent la représentation du professionnel devant les juridictions : N.N. 1. 1. 1. 1. 3. Personnel de l'étude. Effectif total. Titulaires de l'attestation de fin de stage : # nombre ; # noms et date de l'attestation. Stagiaires : # nombre des stagiaires ; # noms : # date d'inscription sur le registre de stage ; # date (s) de présentation à l'examen. Collaborateurs : mentionner avec le nom le (s) diplôme (s) et l'ancienneté : # nombre de collaborateurs ; # noms ; # diplômes ; # ancienneté. Autres personnels salariés : #
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nombre ; # formation ; # nature du contrat (CDI, intérimaire, CDD...). 1. 1. 1. 1. 4. Collaborateurs extérieurs. Autres intervenants habituels, non liés au professionnel par un contrat de travail et dont le coût est supporté par lui, pour l'exécution des tâches entrant dans sa mission (cf. art.L. 811-1 et L. 812-1 C. com.). Nature et motif de ces interventions. 1. 1. 1. 1. 5. Organigramme fonctionnel de l'étude et des bureaux annexes. Description de l'organigramme avec pour chaque poste : # nature et description des fonctions exercées ; # formation ; # ancienneté ; # délégations de pouvoir ; # délégations de signature. 1. 1. 1. 2. Moyens matériels. 1. 1. 1. 2. 1. Locaux. Identité du bailleur si le professionnel n'est pas propriétaire de ses locaux. Dans le cas où le professionnel partage ses locaux avec des tiers, identité et profession de ces derniers. Surfaces en mètres carrés : # du bureau principal ; # du ou des bureau (x) annexe (s). 1. 1. 1. 2. 2. Documentation. Nature de la documentation existante et modalités d'accès pour le personnel de l'étude. Périodicité de mise à jour. 1. 1. 1. 2. 3. Archives. 1. 1. 1. 2. 3. 1. Dossiers de l'étude. Lieu et modalité de gestion de l'archivage. 1. 1. 1. 2. 3. 2. Archives des entreprises lorsqu'elles sont transmises au professionnel. Lieu et modalité de gestion de l'archivage. 1. 1. 1. 2. 3. 3. Recours à des entreprises d'archivage. Nom et adresse de ces entreprises. Tarif pratiqué tant en ce qui concerne les archives de l'étude que les archives des procédures (joindre le contrat en annexe au document permanent). Pratique habituelle du professionnel quant à la prise en charge du coût de l'archivage. Le cas échéant, coût d'archivage supporté par l'étude. 1. 1. 1. 2. 4. Outil informatique. Description du parc informatique de l'étude : # degré d'informatisation des tâches de l'étude ; # archives ; # gestion informatisée des dossiers ; # liaison ETEBAC ou CDC net ; # autres applications informatiques (préciser, le cas échéant, leur utilisation). Description des procédures de sauvegarde : # périodicité des sauvegardes réalisées ; # lieu de conservation des supports de sauvegarde ; # identification de la personne responsable des sauvegardes. Mention de l'existence d'un logiciel anti-virus : # nom de la société ou de la personne assurant la maintenance ; # modalités de suivi des incidents informatiques ; # formation spécifique suivie par les personnels de l'étude pour réagir aux incidents informatiques. Bureaux annexes : # moyens permettant d'assurer la liaison entre le (s) bureau (x) annexe (s) et le domicile professionnel ; # sous-répertoires dans le ou les bureaux annexes ; # centralisation simultanée sur le répertoire unique du domicile professionnel. 1. 1. 1. 2. 5. Comptabilité de l'étude. Logiciel utilisé. En cas de recours à un expert-comptable : nom de l'expert-comptable. Le cas échéant, nom du commissaire aux comptes. 1. 1. 1. 2. 6. Comptabilité spéciale. Nom du commissaire aux comptes et date de sa nomination : Nom du logiciel pour la tenue de la comptabilité spéciale de l'étude : # numéro de l'agrément ; # numéro de la version utilisée ; # numéro de l'agrément des mises à jour. Justificatifs à joindre en annexe au document permanent. 1. 1. 1. 2. 7. Accessibilité de l'étude au public. Heures d'ouverture au public. Plages horaires de la permanence téléphonique ouverte au public. Autres moyens d'accès du public à l'étude (lignes directes, télécopie, portable, internet...). 1. 1. 1. 3. Gestion par l'étude de dossiers provenant d'autres professionnels. Descriptif (1) de l'importance dans l'activité de l'étude du transfert des mandats d'autres professionnels. Reprise de l'étude d'un professionnel retiré : # nombre des dossiers repris. Reprise de tout ou partie des dossiers d'un professionnel ayant cessé d'exercer : # nombre des dossiers repris. Mention du cas particulier des études créées ex nihilo sans transfert de dossiers.
Date et signature
(1) Un tableau spécifique sera renseigné dans ce cas lors de l'établissement de la fiche périodique d'actualisation.
1. 1. 2. Fiche d'actualisation annexée au document permanent. 1. 1. 2. 1. Modifications apportées depuis le dernier contrôle aux informations contenues dans le document permanent. 1. 1. 2. 1. 1. Moyens humains. 1. 1. 2. 1. 2. Moyens matériels.
1. 1. 2. 2. Fiche d'information. 1. 1. 2. 2. 1. Suivi de la formation continue depuis la précédente actualisation. Le professionnel
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Les stagiaires
Les collaborateurs
Les autres salariés
1. 1. 2. 2. 2. Analyse du nombre et de la nature des mandats confiés aux professionnels. Nombre total d'affaires figurant au dernier état trimestriel (cf. tableaux I et I bis). Evolution des fonds détenus (cf. tableau II).
TABLEAU I (COMMERCIALISTES)
Nombre total d'affaires figurant au dernier état trimestriel 1985 et antérieures à 1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
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2002
2003
2004
2005
2006
Totaux
(2) Voir détail de ces rubriques sur le tableau II.
TABLEAU I BIS
(COMMERCIALISTES)
RELATIF AUX SEULS DOSSIERS TRANSFÉRÉS AU PROFESSIONNEL
Nombre des affaires selon la date d'ouverture de la procédure 1985 et antérieures à 1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
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1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
Totaux
(4) Voir détail de ces rubriques sur le tableau II.
TABLEAU II
(COMMERCIALISTES) I. # Mandats judiciaires
Loi de 1967
Syndic
Commissaire à l'exécution du concordat
Loi de 1985
Administrateur judiciaire
Représentants des créanciers
Liquidateur
Commissaire à l'exécution du plan de continuation
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Commissaire à l'exécution du plan de cession
Autres mandats judiciaires
Mandataire ad hoc et conciliateur
Administrateur provisoire et liquidateur amiable en matière commerciale
Administrateur provisoire et liquidateur en matière civile
Autres mandats judiciaires (séquestres, expertises...)
II. # Mandats amiables
Liquidateur amiable
Séquestre
Conseil, expertise amiable
Total
TABLEAU I
(CIVILISTES)
Nombre total d'affaires figurant au dernier état trimestriel 1985 et antérieures à 1985
1986
1987
1988
1989
1990
1991
1992
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1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
Total
(6) Voir détail de ces rubriques sur le tableau II.
TABLEAU I BIS
(CIVILISTES)
RELATIF AUX SEULS DOSSIERS TRANSFÉRÉS AU PROFESSIONNEL
Nombre des affaires selon la date d'ouverture de la procédure 1985 et antérieures à 1985
1986
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1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
Total
(8) Voir détail de ces rubriques sur le tableau II.
TABLEAU II
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(CIVILISTES) I. # Mandats judiciaires
Copropriétés
Sociétés civiles immobilières
Successions
Indivisions
Associations
Loi de 1985
Administrateur judiciaire
Commissaire à l'exécution du Plan
Autres mandats judiciaires
Mandataire ad hoc et conciliateur
Administrateur provisoire et liquidateur en matière civile
Autres mandats judiciaires (séquestres, expertises,...)
II. # Mandats amiables
Liquidateur amiable
Séquestre
Total
Nombre de mandats reçus
Nombre de mandats clôturés (reddition des comptes produite)
Taux de rotation (nombre de mandats clôturés / nombre de mandats reçus)
1. 1. 2. 2. 4. Examen de la sinistralité professionnelle.
Actions en responsabilité civile engagées à l'encontre du professionnel : procédures en cours et décisions définitives intervenues depuis moins de cinq ans :
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Nombre.
Fondement.
Nature de la décision.
1. 1. 2. 2. 5. Analyse financière de l'étude.
Fiche d'actualisation disjointe du rapport des contrôleurs et adressée au Conseil national et à la chancellerie.
1. 1. 2. 2. 5. 1. Eléments financiers. Chiffre d'affaires avant rétrocessions
Salaires et charges
Honoraires versés et rétrocédés
Dotations aux amortissements
Redevances de crédit-bail
Locations mobilières
Locations immobilières
Résultat net réalisé (avant impôt)
Montant des investissements réalisés
Montant des emprunts restant dus
1. 1. 2. 2. 5. 2. Evolution des ratios significatifs. Coefficient d'emploi (salaires + charges / chiffre d'affaires)
Rentabilité de l'étude (résultat / chiffre d'affaires)
Effort d'investissement (dotation aux amortissements + redevances de crédit-bail + locations mobilières / chiffre d'affaires)
Honoraires versés et rétrocédés / chiffre d'affaires
1. 1. 2. 2. 5. 3. Répartition des résultats entre les associés.
Joindre les PV des deux dernières assemblées.
Date et signature
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
1. 2. Vérifications minimales effectuées par les contrôleurs sur l'organisation et la gestion de l'étude. 1. 2. 1. Vérification générale des informations contenues dans le document permanent. Le compte rendu des vérifications fait l'objet d'une rubrique dans la conclusion du rapport de contrôle (voir 3. 1. 1). 1. 2. 2. Vérifications particulières relatives à l'organisation et à la gestion de l'étude. En cas de réponses appelant des observations, celles-ci sont portées dans la conclusion du rapport de contrôle avec mention de la référence du paragraphe concerné (voir 3. 1. 2). Le cas échéant, l'ensemble des mandats détenus à titre individuel sont-ils transférés à la personne morale (attestation sur l'honneur du professionnel) ? oui non sans objet La convention de stage passée entre le stagiaire et le maître de stage est-elle conforme à la convention type établie par le Conseil national des administrateurs judiciaires et des mandataires judiciaires au redressement et à la liquidation des entreprises ? oui non sans objet La conformité aux règles professionnelles des procédures qui suivent est-elle vérifiée ? # délégations de pouvoir et des modalités de signature, notamment de moyens de paiement : oui non sans objet # organisation de l'archivage : oui non # procédures de sauvegarde informatique : oui non L'indépendance du professionnel à l'égard des tiers avec lesquels il partage ses locaux professionnels est-elle vérifiée ? oui non sans objet La facilité d'accès à la documentation pour le personnel de l'étude est-elle vérifiée ? oui non sans objet Existe-t-il une ordonnance du juge-commissaire autorisant le recours à des sociétés d'archivage et fixant leur rémunération ? oui non sans objet Existe-t-il une déclaration préalable des bureaux annexes au commissaire du Gouvernement près la commission d'inscription (art. 82-1 et 82-2 du décret du 27 décembre 1985 modifié) ? oui non sans objet En cas de pluralité de bureaux, les moyens informatiques permettent-ils une centralisation des éléments relatifs aux mandats et aux opérations comptables correspondantes ? oui non sans objet Existe-t-il une autorisation judiciaire lors du recours à des tiers pour l'exécution de tâches incombant personnellement au professionnel ? oui non sans objet Ces tiers sont-ils rémunérés par le professionnel à titre personnel ? oui non sans objet Existe-t-il une autorisation, donnée au professionnel retiré, dossier par dossier, de continuer l'exercice de son mandat ? oui non sans objet La structure de l'étude et ses moyens sont-ils en adéquation avec le nombre de dossiers et la nature des missions qui sont confiées au professionnel ? oui non Le rapprochement des informations de la fiche d'actualisation avec les documents présentés dont elles sont issues appelle-t-il des observations ? oui non Des risques particuliers liés à la situation financière de l'étude ont-ils été identifiés ? oui non La confidentialité des entretiens avec les débiteurs ou avec les tiers au sein de l'étude est-elle assurée ? oui non 1. 2. 3. Examen de la comptabilité spéciale et de son environnement. En cas de réponse appelant des observations, celles-ci sont portées dans la conclusion du rapport de contrôle avec mention de la référence du paragraphe concerné (voir 3. 2. 1). 1. 2. 3. 1. Analyse de l'organisation comptable de l'étude. 1. 2. 3. 1. 1. Prise de connaissance des documents décrivant les procédures et l'organisation comptable. Intitulé des documents examinés (en porter la mention) : Les documents font-ils partie d'un système normalisé ? oui non En l'absence de formalisation des procédures et de l'organisation comptable, les procédures comptables de l'étude vous paraissent-elles pertinentes ? oui non 1. 2. 3. 1. 2. Vérification de la conformité des pratiques au jour du contrôle avec les procédures formalisées ou non. Les procédures formalisées ou non sont-elles connues et appliquées par les collaborateurs ? oui non 1. 2. 3. 1. 3. Vérification de la conformité des informations figurant dans le document permanent et dans la fiche d'actualisation. Identification du numéro d'agrément du logiciel figurant sur les états contrôlés (le mentionner) : Le rapprochement des informations figurant sur les tableaux I et II de la fiche d'actualisation avec les états trimestriels concernés appelle-t-il des observations ? oui non 1. 2. 3. 1. 4. Vérification des délégations et modalités de signature. Les délégations et les modalités de signature sont-elles conformes aux règles professionnelles ? oui non 1. 2. 3. 1. 5. Vérification des procédures d'encaissement. Les fonds reçus en espèces et les chèques sont-ils versés immédiatement à la CDC ? oui non Des comptes financiers spécifiques autres que le compte général, le compte de répartition, les comptes à terme ou le compte AGS sont-ils utilisés ? oui non Pour les mandats amiables existe-t-il des comptes dans d'autres établissements financiers que la Caisse des dépôts et consignations ? oui non Si oui, existe-t-il un mandat express en ce sens ? oui non 1. 2. 3. 2. Contrôles comptables d'ensemble portant sur la dernière période comptable clôturée
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
(état trimestriel au...) 1. 2. 3. 2. 1. Contrôle du répertoire. Le répertoire est-il conforme aux dispositions de l'article 59 du décret du 27 décembre 1985 modifié et du cahier des charges ? oui non Le répertoire enregistre-t-il les mandats tant amiables que judiciaires par ordre chronologique de connaissance par l'étude ? oui non 1. 2. 3. 2. 2. Etats comptables. Existe-t-il des journaux auxiliaires ? oui non L'équilibre mouvements débits = mouvements crédits sur les journaux auxiliaires est-il respecté ? oui non Existe-t-il un livre journal ? oui non Y a-t-il égalité sur le livre journal des mouvements débits et des mouvements crédits ? oui non Y a-t-il égalité des mouvements du livre journal avec les mouvements de la balance ? oui non Y a-t-il égalité du solde du livre journal avec le solde de la balance ? oui non 1. 2. 3. 2. 3. Tenue et contrôle des états trimestriels. Le contenu des états trimestriels est-il conforme aux dispositions de l'article 63 du décret n° 85-1389 du 27 décembre 1985 modifié ? oui non Le dépôt des états trimestriels est-il conforme aux dispositions de l'article 64 du décret susvisé ? oui non Les états trimestriels relatifs aux périodes antérieures sont-ils conservés et accessibles aux contrôleurs ? oui non Le contrôle exhaustif du dernier état trimestriel fait-il apparaître des avances pour un ou plusieurs mandats réalisées par prélèvement sur les autres mandats ? oui non Les effets titres et valeurs détenus par l'étude sont-ils enregistrés et portés sur l'état trimestriel ? oui non 1. 2. 3. 2. 4. Répartition des intérêts produits par un (ou des) compte (s) global (aux) rémunéré (s) (compte répartition). Le professionnel utilise-t-il le compte de répartition ? oui non Si oui : # le mode de répartition est-il équitable ? oui non # subsiste-t-il des intérêts non répartis ? oui non Les états trimestriels font-ils apparaître les intérêts produits pour chaque mandat ? oui non 1. 2. 3. 2. 5. Ouverture de compte à terme. Le professionnel utilise-t-il des comptes à terme ? oui non Si oui, le plafond par mandat géré sur le compte général est-il respecté ? oui non 1. 2. 3. 3. Contrôle de la représentation des fonds. 1. 2. 3. 3. 1. Contrôle des comptes financiers. 1. 2. 3. 3. 1. 1. Contrôle de l'exhaustivité. La liste des comptes compris dans le périmètre de la comptabilité spéciale est-elle conforme aux informations communiquées par les établissements financiers ? oui non 1. 2. 3. 3. 1. 2. Analyse des états de rapprochement à la date du dernier état trimestriel (comptes à vue et comptes à terme). Les états de rapprochement sont-ils visés par le professionnel ? oui non Les états de rapprochement sont-ils exacts ? oui non Les états de rapprochement font-ils apparaître des chèques prescrits ? oui non 1. 2. 3. 3. 2. Analyse des mouvements en espèces. Les opérations en espèces sont-elles comptabilisées sur un journal auxiliaire de caisse ? oui non Les sommes portées sur le carnet de reçus correspondent-elles à celles portées en comptabilité ? oui non Les reçus constituent-ils une série de numéros ininterrompue utilisés dans l'ordre numérique ? oui non Le numéro de reçu est-il mentionné dans l'écriture comptable ? oui non 1. 2. 3. 3. 3. Analyse du compte de liaison. Le compte de liaison figure-t-il sur les états trimestriels ? oui non A-t-il été procédé à l'analyse du solde du compte de liaison à la date du dernier état trimestriel ? oui non 1. 2. 3. 3. 4. Analyse des modalités de consignation des chèques prescrits ou revenus n'habite pas à l'adresse indiquée (NPAI). Les fonds restitués à l'AGS font-ils l'objet d'un suivi ? oui non Les chèques consignés auprès de la CDC sont-ils répertoriés ? oui non 1. 2. 3. 3. 5. Effets, titres et valeurs. Les effets, titres et valeurs figurent-ils sur le dernier état trimestriel ? oui non 1. 2. 3. 4. Vérification des comptes bancaires autres que CDC fonctionnant sous la seule signature du professionnel. Des comptes bancaires autres que CDC fonctionnant sous la seule signature du professionnel existent-ils à la date du dernier état trimestriel ? oui non Les opérations sur ces comptes sont-elles suivies par l'étude ? oui non La procédure de suivi de ces comptes vous paraît-elle fiable ? oui non Les sommes disponibles déposées sur les comptes bancaires ouverts au nom du débiteur ayant fait l'objet d'un jugement arrêtant un plan de cession sont-elles déposées à la CDC dans les 15 jours du prononcé de ce jugement (art. 68 du décret n° 85-1389 du 27 décembre 1985) ? oui non La demande de clôture des comptes a-t-elle été effectuée dans un délai maximum de 90 jours ? oui non Le suivi des opérations entre la date du jugement de liquidation et la date d'encaissement du solde de l'ensemble des comptes bancaires poursuite d'activité appelle-t-il des observations ? oui non 1. 2. 3. 5. Vérification des opérations comptables. 1. 2. 3. 5. 1. Vérification par sondages de l'existence d'une pièce justificative, sans appréciation ou contrôle du bien-fondé de l'opération, à l'appui des écritures comptables : Les vérifications opérées appellent-elles des observations ? oui non 1. 2. 3. 5. 2.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Rapprochement des informations figurant sur l'état trimestriel et sur le compte individuel du mandat. Les rapprochements opérés appellent-ils des observations ? oui non
DEUXIÈME PARTIE
Vérifications relatives à l'exercice de sa mission par le professionnel
Ces vérifications portant sur le mode d'exercice habituel du professionnel seront opérées à partir d'un choix de dossiers significatifs, effectué par les contrôleurs, permettant de répondre à chacune des questions posées (en aucun cas les dossiers ne doivent être choisis par le contrôlé). En cas de réponse appelant des observations, celles-ci sont portées dans la conclusion du rapport de contrôle avec mention de la référence du paragraphe concerné. 2. 1. Vérifications communes à l'ensemble des missions exercées. La structure d'exercice professionnel est-elle certifiée selon la ou les normes de système relative (s) aux exigences pour le management de la qualité de l'ISO (Organisation internationale de normalisation) ? oui non En cas de réponse positive une copie du certificat est jointe en annexe. 2. 1. 1. Analyse de la structure des dossiers examinés. Le plan de classement des pièces est-il efficient ? oui non Une procédure permettant l'accès immédiat aux données essentielles du dossier est-elle mise en place ? oui non Existe-t-il une procédure permettant de respecter les échéances importantes de la procédure ? oui non 2. 1. 2. Mode de traitement du courrier. Les entrées du courrier font-elles l'objet d'un enregistrement ? oui non Les courriers émis font-ils l'objet d'un enregistrement ? oui non Les délais de réponse aux courriers sont-ils raisonnables ? oui non 2. 1. 3. Recours aux intervenants extérieurs. 2. 1. 3. 1. Vérification du respect des dispositions de l'article 31 du décret n° 85-1390 du 27 décembre 1985. Le recours à des intervenants extérieurs pour des tâches n'entrant pas dans la compétence habituelle des administrateurs judiciaires et des mandataires judiciaires au redressement et à la liquidation des entreprises est-il : # habituel ? oui non # occasionnel ? oui non Nature des tâches confiées à ces intervenants extérieurs, modalités d'intervention et de rémunération : Nature des tâches confiées et qualité de l'intervenant (les contrôleurs mentionneront ci-après ces éléments d'information) : # # Le montant de la rémunération sollicitée par l'intervenant apparaît-il en adéquation avec la tâche qui lui est confiée ? oui non Existe-t-il une ordonnance du juge autorisant cette intervention ? oui non Existe-t-il une ordonnance autorisant la rémunération ? oui non 2. 1. 3. 2. Vérification du respect des prescriptions de l'article 20 du décret n° 85-1390 du 27 décembre 1985 au vu des règles professionnelles : Le recours aux officiers publics et ministériels et aux experts a-t-il été reconnu nécessaire et a-t-il été autorisé ? oui non Dans le cas particulier où l'intervention d'un avocat comprend un honoraire complémentaire en fonction du résultat obtenu ou du service rendu, une autorisation judiciaire préalable a-t-elle été obtenue ? oui non 2. 2. Vérifications spécifiques aux différentes missions. 2. 2. 1. Mandat d'administrateur judiciaire dans les procédures de redressement judiciaire. 2. 2. 1. 1. Situation de l'entreprise à l'ouverture de la procédure. 2. 2. 1. 1. 1. Analyse de la structure juridique, comptable et financière de l'entreprise. La procédure de collecte des informations aux fins de procéder à cette analyse à l'ouverture de la procédure apparaît-elle satisfaisante ? oui non La procédure d'établissement et d'analyse de la situation comptable au jour du jugement d'ouverture paraît-elle pertinente ? oui non 2. 2. 1. 1. 2. Détermination de la situation patrimoniale de l'entreprise. 2. 2. 1. 1. 2. 1. Inventaire.L'inventaire est-il réalisé dès l'ouverture de la procédure ? oui non Le débiteur est-il invité à participer à l'établissement de l'inventaire ? oui non Le professionnel a-t-il recours à des experts pour dresser l'inventaire ? oui non L'inventaire porte-t-il sur l'ensemble des biens détenus par le débiteur ? oui non L'inventaire est-il déposé au greffe du tribunal ayant ouvert la procédure ? oui non 2. 2. 1. 1. 2. 2. Assurances. Les modalités de vérification des conditions d'assurances apparaissent-elles satisfaisantes ? oui non Les dispositions prises en cas d'absence ou de résiliation des assurances sont-elles adaptées ? oui non 2. 2. 1. 1. 2. 3. Traitement des clauses de réserves de propriété et autres revendications. Les modalités de traitement des clauses de réserve de propriété et des autres revendications (droits de rétention, gages sur marchandises...) apparaissent-elles satisfaisantes ? oui non Les dispositions prises pour garantir les droits des
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
revendiquants pendant la phase d'analyse et de détermination de leurs droits sont-elles adaptées ? oui non 2. 2. 1. 1. 2. 4. Vérification de la situation de l'entreprise au regard de la législation sur l'environnement. Les modalités de vérification de la situation de l'entreprise au regard de la législation sur l'environnement sont-elles satisfaisantes ? oui non Les dispositions prises par l'administrateur en cas de situation irrégulière sont-elles adaptées ? oui non 2. 2. 1. 1. 2. 5. Vérification de la situation de l'entreprise au regard des règles sur l'hygiène et la sécurité du travail. Les dispositions prises par l'administrateur sont-elles adaptées ? oui non 2. 2. 1. 1. 3. Aspects sociaux.L'administrateur vérifie-t-il la conformité de la représentation du personnel avec la taille de l'entreprise ? oui non En cas de situation irrégulière, les mesures prises par le professionnel sont-elles adaptées ? oui non 2. 2. 1. 1. 4. Bilan économique et social. Les rapports prévus aux articles 29 (procédure générale) et 113 (procédure simplifiée) du décret du 27 décembre 1985 sont-ils déposés dans les délais ? oui non Sont-ils transmis : # au juge-commissaire : oui non # au procureur de la République : oui non # au représentant des créanciers : oui non Le contenu du bilan économique et social est-il satisfaisant ? oui non Le BES est-il transmis : # au juge-commissaire : oui non # au procureur de la République : oui non # au représentant des créanciers : oui non # au représentant des salariés : oui non # aux contrôleurs : oui non # au chef d'entreprise : oui non Le comité d'entreprise ou les délégués du personnel sont-ils consultés sur le BES ? oui non 2. 2. 1. 2. Poursuite de l'activité. 2. 2. 1. 2. 1. Suivi de la trésorerie et de l'exploitation en période d'observation. 2. 2. 1. 2. 1. 1. Prévisions d'exploitation et de trésorerie. Des prévisions d'exploitation et de trésorerie sont-elles établies ? oui non Ces prévisions sont-elles renouvelées au cours de la période d'observation et révisées en fonction des flux réels ? oui non 2. 2. 1. 2. 1. 2. Modalités de suivi des flux de trésorerie. Les moyens de paiement sont-ils tous signés (mission de représentation) ou contresignés (mission d'assistance) par le professionnel ou un salarié de l'étude ? oui non Les procédures internes de suivi de la trésorerie sont-elles adaptées ? oui non 2. 2. 1. 2. 1. 3. Modalités de rémunération des dirigeants au cours de la période d'observation. La rémunération est-elle fixée par ordonnance du juge-commissaire ? oui non 2. 2. 1. 2. 2. Information.L'administrateur informe-t-il les personnes désignées à l'article 57 du décret du 27 décembre 1985 des résultats de l'exploitation, de la situation de trésorerie et de la capacité prévisible du débiteur à faire face aux dettes nées après le jugement d'ouverture ? oui non L'information fournie est-elle satisfaisante ? oui non 2. 2. 1. 2. 3. Poursuite des contrats. Une liste des contrats relevant de l'article L. 621-28 du code de commerce est-elle remise à l'administrateur ? oui non Les réponses aux cocontractants sont-elles pertinentes au regard des prévisions de trésorerie et d'exploitation ? oui non 2. 2. 1. 2. 4. Procédures de licenciement en période d'observation. Une note sur la situation économique et financière de l'entreprise justifiant les licenciements économiques est-elle rédigée (en présence d'un comité d'entreprise + livre IV du code du travail) ? oui non Un projet de plan social est-il élaboré (en présence d'un comité d'entreprise + livre III du code du travail) ? oui non Les mesures de reclassement proposées sont-elles en cohérence avec la taille de l'entreprise et ses capacités financières ? oui non L'avis du comité d'entreprise, des délégués du personnel et / ou du représentant des salariés est-il recueilli ? oui non L'autorité administrative est-elle informée ? oui non L'autorisation du juge-commissaire est-elle sollicitée dans le respect des dispositions des articles L. 321-8 et L. 321-9 du code du travail ? oui non 2. 2. 1. 2. 5. Créances visées à l'article L. 621-32 du code de commerce. Les procédures mises en place pour détecter la création de dettes visées à l'article L. 621-32 du code de commerce, assurer leur suivi et leur règlement sont elles adaptées ? oui non La liste des créances nées après le jugement d'ouverture et non payées à leur échéance est-elle déposée au greffe ? oui non 2. 2. 1. 3. Plan de redressement. 2. 2. 1. 3. 1. Plan de continuation.L'administrateur s'assure-t-il que le plan de redressement par voie de continuation proposé précise : # les possibilités et modalités d'activité ? oui non # les moyens de financement ? oui non # le niveau et les perspective d'emploi ? oui non # les modalités de règlement du passif ? oui non # les garanties extrinsèques et intrinsèques souscrites pour assurer l'exécution du plan ? oui non Les propositions de règlement du passif sont-elles transmises au représentant des créanciers ? oui non Le comité d'entreprise ou les délégués du personnel sont-ils consultés sur le projet de plan de redressement ? oui non Le rapport contenant le projet de plan de redressement est-il
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
régulièrement communiqué aux organes de la procédure (juge-commissaire, procureur de la République, représentant des créanciers, représentant des salariés, représentant du personnel, contrôleurs...) ? oui non Le contenu du rapport analysant le plan de redressement par voie de continuation est-il satisfaisant ? oui non 2. 2. 1. 3. 2. Plan de cession. 2. 2. 1. 3. 2. 1. Recherche de cessionnaires. La publicité prévue à l'article 32 du décret du 27 décembre 1985 est-elle effectuée ? oui non Les actions engagées par l'administrateur pour susciter des offres de reprise sont-elles adaptées à la taille et au secteur d'activité de l'entreprise ? oui non L'administrateur fixe-t-il une date limite de dépôt des offres ? oui non Des démarches sont-elles engagées par l'administrateur pour obtenir une amélioration des offres déposées ? oui non 2. 2. 1. 3. 2. 2. Analyse des offres.L'administrateur s'assure-t-il que les offres de cession comportent : # la description de la stratégie industrielle, commerciale, financière, sociale qu'entend mettre en œuvre le cessionnaire ? oui non # les plans prévisionnels d'exploitation et de trésorerie ? oui non # un plan de financement ? oui non # les garanties extrinsèques et intrinsèques souscrites pour assurer l'exécution du plan ? oui non # le niveau et les perspectives d'emploi ? oui non L'administrateur s'assure-t-il que le candidat à la cession : # justifie économiquement son plan social ? oui non # motive le choix des postes de travail maintenus ? oui non # formule des propositions en matière de reclassement du personnel licencié ? oui non Les dispositions de l'article L. 621-88 sont-elles respectées ? oui non Les dispositions de l'article L. 621-96 sont-elles respectées ? oui non Le comité d'entreprise, les délégués du personnel ou le représentant des salariés sont-ils consultés sur les offres de reprise ? oui non Le comité d'entreprise est-il consulté sur le plan social et les mesures de reclassement et d'accompagnement ? oui non Le rapport contenant le projet de plan de redressement est-il régulièrement communiqué aux organes de la procédure (juge-commissaire, procureur de la République, représentant des créanciers, représentant des salariés, représentant du personnel, contrôleurs...) ? oui non Le contenu du rapport analysant les offres de cession est-il satisfaisant ? oui non 2. 2. 1. 3. 2. 3. Liquidation judiciaire. La proposition de l'administrateur d'une conversion en liquidation judiciaire est-elle cohérente avec les conclusions du bilan économique et social et l'analyse de la situation financière de l'entreprise à l'issue de la période d'observation ? oui non Une analyse sur une éventuelle poursuite de l'activité dans le cadre de la liquidation judiciaire est-elle jointe à la proposition de conversion en liquidation judiciaire ? oui non 2. 2. 1. 4. Mise en œuvre du plan. 2. 2. 1. 4. 1. Licenciements en cas de plan de cession. Un projet de plan social est-il élaboré (en présence d'un comité d'entreprise, livre III du code du travail) ? oui non Les mesures de reclassement proposées sont-elles adaptées à la taille de l'entreprise et à ses capacités financières ? oui non Le cessionnaire est-il sollicité pour le reclassement du personnel licencié ? oui non L'avis du comité d'entreprise, des délégués du personnel et / ou du représentant des salariés est-il recueilli ? oui non L'autorité administrative est-elle informée ? oui non L'autorisation de licenciement du personnel protégé est-elle sollicitée ? oui non 2. 2. 1. 4. 2. Garanties. En cas de plan de cession : les garanties prévues par le plan sont-elles mises en place avant l'entrée en jouissance ? oui non 2. 2. 1. 4. 3. Passation des actes. Les actes de transfert de propriété sont-ils passés dans un délai satisfaisant ? oui non 2. 2. 1. 5. Calcul des émoluments. En cas d'anomalie, la référence précise du dossier concerné doit être mentionnée parmi les observations qui lui sont relatives. 2. 2. 1. 5. 1. Droit fixe. Les dispositions de l'article 2 du décret n° 85-1390 du 27 décembre 1985 (droit fixe perçu par l'administrateur judiciaire modulé selon le régime procédure normale ou simplifiée) sont-elles respectées ? oui non En cas d'extension de procédure (avec procédure unique), un seul droit fixe est-il perçu ? oui non 2. 2. 1. 5. 2. Droits gradués ou proportionnels. Les dispositions réglementaires relatives aux droits gradués ou proportionnels sont-elles respectées ? oui non Dans le cas d'application de dérogations au barème existant, ont-elles été autorisées par le président du tribunal compétent ? oui non 2. 2. 1. 5. 3. Modalités de prélèvement. Les prélèvements d'honoraires sont-ils précédés : # d'un arrêté de frais et émoluments signé par le juge-commissaire ou le président du tribunal ? oui non # d'une ordonnance de taxe ? oui non Le montant prélevé correspond-il au montant autorisé ? oui non Existe-t-il des différés dans la perception des honoraires ? oui non Si oui, motifs à expliquer dans la conclusion du rapport de contrôle. 2. 2. 1. 5. 4. Remboursement des frais. Le remboursement des frais et débours est-il autorisé par ordonnance ? oui non 2. 2. 1. 5. 5.
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
Acomptes ou provisions. Des acomptes sont-ils perçus par le professionnel ? oui non Si oui : # correspondent-ils à un travail réellement effectué ? oui non # sont-ils autorisés par le président du tribunal ? oui non # sont-ils prélevés après autorisation ? oui non # le montant prélevé correspond-il au montant autorisé ? oui non 2. 2. 1. 6. Modalités de clôture et de reddition des comptes. 2. 2. 1. 6. 1. Procédures suivies pour clôturer les dossiers. Le professionnel produit-il un compte rendu de sa mission au juge-commissaire ou au président du tribunal ? oui non Les délais pour la production des redditions de comptes au greffe du tribunal sont-ils respectés ? oui non La notification des comptes au débiteur est-elle effectuée par le professionnel, par lettre recommandée ? oui non La notification précise-t-elle les voies de recours ? oui non La reddition des comptes donne-t-elle une image fidèle des opérations effectuées ? oui non Présente-t-elle un solde nul ? oui non 2. 2. 1. 6. 2. Etat d'avancement des dossiers d'administration judiciaire les plus anciens non clôturés. Existe-t-il des dossiers d'administration judiciaire non clôturés dans un délai raisonnable, malgré l'arrêté d'un plan, le prononcé d'une liquidation judiciaire, ou l'expiration de la période d'observation ? oui non Si oui, si les motifs pour lesquels la clôture n'est pas intervenue dans un délai raisonnable n'apparaissent pas pertinents, une observation à leur sujet est portée à la conclusion du rapport de contrôle, les références des dossiers en cause étant précisées. 2. 2. 2. Mandat de représentant des créanciers. 2. 2. 2. 1. Information des créanciers. Le représentant des créanciers respecte-t-il les obligations d'information des créanciers connus (envoi dans un délai de quinze jours à compter du jugement d'ouverture de l'avis de déclaration de créance reprenant toutes les dispositions légales et réglementaires visées à l'article D. 66) ? oui non 2. 2. 2. 2. Vérification des créances salariales (art.L. 621-125 et suivants du code de commerce). La vérification est-elle effectuée par le professionnel ? oui non Si non, nom du délégué ou de l'intervenant extérieur : renseignement à mentionner dans la conclusion du rapport de contrôle. Le professionnel rémunère-t-il cet intervenant sur ses propres émoluments ? oui non Le relevé de créances salariales est-il établi conformément aux dispositions de l'article L. 621-125 (audition du débiteur, soumission au représentant des salariés et recueil du visa du juge-commissaire) ? oui non Le relevé est-il déposé au greffe du tribunal de commerce pour publication ? oui non Le relevé est-il communiqué dans les délais réglementaires aux institutions mentionnées à l'article L. 143-11-4 du code du travail (association pour la gestion du régime d'assurance des créances des salariés [AGS]) afin de procéder aux avances salariales en cas de fonds indisponibles dans la procédure ? oui non Le paiement des créances salariales est-il effectué dès réception des fonds reçus de l'AGS ? oui non Le professionnel suit-il les instances en cours devant la juridiction prud'homale (art.L. 621-126) ? oui non 2. 2. 2. 3. Vérification des autres créances. Le principe du contradictoire, en particulier en cas de contestation de créances, est-il respecté ? oui non Existe-t-il un rapport du représentant des créanciers, relatif au recueil des explications du créancier, préalable à l'ordonnance du juge-commissaire ? oui non 2. 2. 2. 4. Etablissement de la liste des créances (art.L. 621-103 du code de commerce et 3 de la loi du 25 janvier 1985) (cf. note 1). Le représentant des créanciers recueille-t-il l'accord ou l'avis du débiteur sur la liste des créanciers avec ses propositions d'admission ou de rejet ? oui non Le délai fixé par le tribunal pour établir la liste des créances est-il respecté ? oui non 2. 2. 2. 5. Plan de continuation. Le représentant des créanciers a-t-il circularisé les propositions du plan du débiteur avec son avis ? oui non A-t-il effectué un compte rendu des réponses : # au débiteur ? oui non # à l'administrateur ? oui non Ont-elles été annexées au projet de plan ? oui non 2. 2. 2. 6. Sanctions. Le professionnel établit-il des rapports ou assignations destinés à mettre en œuvre des sanctions à l'encontre du dirigeant de l'entreprise ? oui non # en vue de sanctions patrimoniales ? oui non # en vue de sanctions personnelles ? oui non La qualité et le contenu des rapports ou assignations sont-ils satisfaisants ? oui non 2. 2. 2. 7. Calcul des émoluments. En cas d'anomalie, la référence précise du dossier concerné doit être mentionnée parmi les observations qui lui sont relatives. 2. 2. 2. 7. 1. Droit fixe. En cas d'extension de procédure (avec procédure unique), un seul droit fixe est-il perçu ? oui non 2. 2. 2. 7. 2. Droits gradués ou proportionnels. Les dispositions réglementaires relatives aux droits gradués ou proportionnels sont-elles respectées ? oui non Dans le cas d'application de dérogations au barème existant, ont-elles été autorisées par le président du tribunal compétent ? oui non Le professionnel limite-t-il ses
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
demandes au titre de l'article 15 du 3° décret du 27 décembre 1985 aux contestations de créances effectuées en application du troisième alinéa de l'article 72 du 1er décret du 27 décembre 1985 ? oui non Le professionnel limite-t-il ses demandes, au titre des recouvrements et des réalisations d'actifs, aux cas où ces actifs ont été recouvrés ou réalisés à la suite d'une démarche amiable ou judiciaire ? oui non 2. 2. 2. 7. 3. Modalités de prélèvement. Les prélèvements d'honoraires sont-ils précédés : # d'un arrêté de frais et émoluments signé par le juge-commissaire ou le président du tribunal ? oui non # d'une ordonnance de taxe ? oui non Le montant prélevé correspond-il au montant autorisé ? oui non Existe-t-il des différés dans la perception des honoraires ? oui non Si oui, motifs à expliquer dans la conclusion du rapport de contrôle. 2. 2. 2. 7. 4. Remboursement des frais. Le remboursement des frais et débours est-il autorisé par ordonnance ? oui non 2. 2. 2. 7. 5. Acomptes ou provisions. Des acomptes sont-ils perçus par le professionnel ? oui non Si oui : # correspondent-ils à un travail réellement effectué ? oui non # sont-ils autorisés par le président du tribunal ? oui non # sont-ils prélevés après autorisation ? oui non # le montant prélevé correspond-il au montant autorisé ? oui non 2. 2. 2. 8. Modalités de clôture et de reddition des comptes. 2. 2. 2. 8. 1. Procédures suivies pour clôturer les dossiers. Le professionnel produit-il un compte rendu de sa mission au juge-commissaire ou au président du tribunal ? oui non Les délais pour la production des redditions de comptes au greffe du tribunal sont-ils respectés ? oui non La notification des comptes au débiteur est-elle effectuée par le professionnel par lettre recommandée ? oui non # la notification précise-t-elle les voies de recours ? oui non # la reddition des comptes donne-t-elle une image fidèle des opérations effectuées ? oui non # présente-t-elle un solde nul ? oui non 2. 2. 2. 8. 2. Etat d'avancement des dossiers les plus anciens non clôturés. Pour les dossiers les plus anciens détenus par le professionnel au jour du contrôle : Les motifs d'absence de clôture sont-ils pertinents ? oui non Si les motifs pour lesquels la clôture n'est pas intervenue dans un délai raisonnable n'apparaissent pas pertinents, une observation à leur sujet est portée à la conclusion du rapport de contrôle, les références des dossiers en cause étant précisées. 2. 2. 3. Mandat de commissaire à l'exécution du plan. Le commissaire à l'exécution du plan est désigné par les initiales CEP. 2. 2. 3. 1. Commissariat au plan de continuation. Le CEP procède-t-il à l'inscription de l'inaliénabilité ? oui non Les moyens mis en œuvre pour vérifier le respect des engagements souscrits, notamment le règlements des dividendes arrêtés dans le plan, sont-ils satisfaisants ? oui non Le règlement des dividendes est-il assuré : # par le débiteur ? oui non # par le CEP ? oui non En cas de règlement par le débiteur, le CEP en contrôle-t-il la régularité ? oui non Le rapport annuel prévu à l'article 103 du décret du 27 décembre 1985 est-il déposé au greffe ? oui non Le signalement au tribunal de l'inexécution du plan est-il effectué dans un délai raisonnable ? oui non En cas d'inexécution, le CEP : # dépose-t-il un rapport ? oui non # assigne-t-il en résolution de plan ? oui non En cas de demande de modification du plan par le chef d'entreprise, le contenu du rapport du CEP est-il pertinent ? oui non 2. 2. 3. 2. Commissariat au plan de cession. 2. 2. 3. 2. 1. Inaliénabilité. Le CEP procède-t-il à l'inscription de l'inaliénabilité ? oui non 2. 2. 3. 2. 2. Informations. Une liste des dettes L. 621-32 est-elle établie et remise au CEP ? oui non 2. 2. 3. 2. 3. Suivi des contentieux et actions en recouvrement. Le CEP assure-t-il de façon satisfaisante le suivi des contentieux et les actions de recouvrements engagées ? oui non 2. 2. 3. 2. 4. Répartition du prix de cession et des actifs réalisés. La répartition du prix de cession et des actifs réalisés ou recouvrés hors plan est-elle conforme aux règles d'ordre des privilèges ? oui non 2. 2. 3. 2. 5. Réalisation des actifs non compris dans le plan de cession. Le débiteur est-il dûment entendu ou convoqué aux fins de donner son avis préalablement à l'ordonnance du juge-commissaire autorisant la vente des actifs ? oui non Les règles posées aux articles L. 622-16, L. 622-17 et L. 622-18 du code de commerce, pour réaliser les biens non compris dans le plan de cession, sont-elles respectées (cf. procédures de réalisation des actifs par le liquidateur) ? oui non 2. 2. 3. 2. 6. Répartitions. Le CEP procède-t-il à des répartitions dès qu'il en a la possibilité ? oui non L'ordre du remboursement du super privilège et l'application de l'ordre des privilèges est-il respecté ? oui non 2. 2. 3. 2. 7. Diligences en cas d'inexécution du plan. En cas d'inexécution du plan, le CEP : # dépose-t-il un rapport ? oui non # assigne-t-il en résolution du plan ? oui non 2. 2. 3. 3. Sanctions. Le CEP établit-il des rapports ou assignations destinés à mettre en œuvre des sanctions à l'encontre du dirigeant de l'entreprise ? oui non En vue
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
de sanctions patrimoniales ? oui non En vue de sanctions personnelles ? oui non La qualité et le contenu des rapports ou assignations sont-ils satisfaisants ? oui non 2. 2. 3. 4. Calcul des émoluments. En cas d'anomalie, la référence précise du dossier concerné doit être mentionnée parmi les observations qui lui sont relatives. 2. 2. 3. 4. 1. Droit gradué. Les dispositions de l'article 8 du décret n° 85-1390 du 27 décembre 1985 sont-elles respectées ? oui non Dans le cas d'application de dérogations au barème existant, ont-elles été autorisées par le président du tribunal compétent ? oui non 2. 2. 3. 4. 2. Répartition du prix. Les émoluments sont-ils calculés selon un barème propre à la juridiction ? oui non Les émoluments sont-ils calculés selon un état des diligences du CEP ? oui non 2. 2. 3. 4. 3. Réalisation des biens non compris dans le plan de cession. Les émoluments sont-ils calculés conformément aux dispositions de l'article 18 du décret ? oui non 2. 2. 3. 4. 4. Modalités de prélèvement. Les prélèvements d'honoraires sont-ils précédés : # d'un arrêté de frais et émoluments signé par le juge-commissaire ou par le président du tribunal ? oui non # d'une ordonnance de taxe ? oui non Le montant prélevé correspond-il au montant autorisé ? oui non Existe-t-il des différés dans la perception des honoraires ? oui non Si oui, motifs à expliquer dans la conclusion du rapport de contrôle. 2. 2. 3. 4. 5. Remboursement des frais. Le remboursement des frais et débours est-il autorisé par ordonnance ? oui non 2. 2. 3. 4. 6. Acomptes ou provisions. Des acomptes sont-ils perçus par le professionnel ? oui non Si oui : # correspondent-ils à un travail réellement effectué ? oui non # sont-ils autorisés par le président du tribunal ? oui non # sont-ils prélevés après autorisation ? oui non # le montant prélevé correspond-il au montant autorisé ? oui non 2. 2. 3. 5. Modalités de clôture et de reddition des comptes. 2. 2. 3. 5. 1. Procédures suivies pour clôturer les dossiers. Le professionnel produit-il un compte rendu de sa mission au juge-commissaire ou au président du tribunal ? oui non Les délais pour la production des redditions de comptes au greffe du tribunal sont-ils respectés ? oui non La notification des comptes au débiteur est-elle effectuée par le professionnel par lettre recommandée ? oui non La notification précise-t-elle les voies de recours ? oui non La reddition des comptes donne-t-elle une image fidèle des opérations effectuées ? oui non Présente-t-elle un solde nul ? oui non 2. 2. 3. 5. 2. Etat d'avancement des dossiers les plus anciens non clôturés. Pour les dossiers les plus anciens détenus par le professionnel au jour du contrôle : # les motifs d'absence de clôture sont-ils pertinents ? oui non # des répartitions partielles de fonds ont-elles été réalisées (en particulier paiement de créances bénéficiant du superprivilège ou de privilèges) ? oui non Si les motifs pour lesquels la clôture n'est pas intervenue dans un délai raisonnable n'apparaissent pas pertinents, une observation à leur sujet est portée à la conclusion du rapport de contrôle, les références des dossiers en cause étant précisées. 2. 2. 4. Mandat de liquidateur. 2. 2. 4. 1. Relations humaines. 2. 2. 4. 1. 1. Avec le débiteur. Le débiteur est-il convoqué au début de la procédure ? oui non Le débiteur est-il informé des stades de la procédure ? oui non Des subsides lui sont-ils accordés ? oui non Les règles de l'article 14 de la loi n° 91-650 du 9 juillet 1991 relatives à l'insaisissabilité de certains biens sont-elles respectées ? oui non 2. 2. 4. 1. 2. Avec les salariés et les créanciers. Les créanciers sont-ils informés des stades de la procédure ? oui non 2. 2. 4. 1. 3. Diligences à accomplir en cas de liquidation judiciaire prononcée en cours ou à l'issue de la période d'observation. La poursuite d'activité est-elle autorisée par jugement ? oui non Un récolement ou l'achèvement de l'inventaire est-il réalisé ? oui non Le débiteur est-il invité à participer à l'établissement de l'inventaire ? oui non Le professionnel a-t-il recours à des experts pour dresser l'inventaire ? oui non L'inventaire porte-t-il sur l'ensemble des biens détenus par le débiteur ? oui non L'inventaire est-il déposé au greffe du tribunal ayant ouvert la procédure ? oui non La restitution des locaux intervient-elle dans un délai raisonnable ? oui non La vérification des créances est-elle effectuée ? oui non 2. 2. 4. 2. Modalités de mise en œuvre des procédures de réalisation des actifs de la liquidation. Le débiteur est-il dûment entendu ou convoqué aux fins de donner son avis préalablement à l'ordonnance du juge-commissaire autorisant la vente des actifs ? oui non 2. 2. 4. 2. 1. Vente des immeubles. La requête aux fins de vente adressée au juge-commissaire expose-t-elle les avantages et inconvénients des différentes solutions autorisées par l'article L. 622-16 (adjudication judiciaire, amiable ou vente de gré a gré) ? oui non L'état de collocation est-il réalisé à partir de l'état hypothécaire, des créances admises et des créances article L. 621-32 ? oui non 2. 2. 4. 2. 1. 1. Ventes d'immeubles par voie de saisie immobilière ou
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
adjudication judiciaire. Existe-t-il une ordonnance du juge-commissaire autorisant cette vente et fixant la mise à prix et les modalités de publicité ? oui non 2. 2. 4. 2. 1. 2. Ventes d'immeubles par voie d'adjudication amiable. Existe-t-il une ordonnance du juge-commissaire autorisant cette vente et fixant la mise à prix et les modalités de publicité ? oui non 2. 2. 4. 2. 1. 3. Ventes d'immeubles de gré à gré. Existe-t-il une ordonnance du juge-commissaire autorisant la vente de gré à gré ? oui non Les conditions de vente déterminées par le juge-commissaire sont-elles respectées ? oui non La qualité du dossier constitué par le liquidateur pour la vente de l'immeuble est-elle satisfaisante ? oui non Le liquidateur engage-t-il des actions pour susciter des offres d'acquisition ? oui non Les offres recueillies sont-elles rappelées dans la requête au juge-commissaire ? oui non 2. 2. 4. 2. 2. Vente des unités de production.L'obligation de publicité légale de la mise en vente au greffe du tribunal est-elle respectée ? oui non Le liquidateur utilise-t-il d'autres supports de publicité pour susciter des offres d'acquisition ? oui non Dans l'affirmative, ces supports seront mentionnés dans la conclusion du rapport de contrôle. Les offres reçues sont-elles déposées au greffe du tribunal ? oui non 2. 2. 4. 2. 3. Vente des autres biens de l'entreprise (biens meubles, bail, fonds de commerce...). Existe-t-il une ordonnance du juge-commissaire autorisant la vente et en fixant les modalités ? oui non 2. 2. 4. 2. 3. 1. Vente de gré à gré. Le liquidateur respecte-t-il les conditions de vente déterminées par ordonnance du juge-commissaire ? oui non Le liquidateur engage-t-il des actions pour susciter des offres d'acquisition ? oui non La qualité du dossier constitué par le liquidateur pour procéder à la vente des biens est-elle adaptée ? oui non En cas de pluralité de propositions, sont-elles rappelées dans la requête ? oui non Les moyens utilisés pour déterminer la valeur des biens sont-ils adaptés ? oui non 2. 2. 4. 2. 3. 2. Vente aux enchères publiques. Le liquidateur respecte-t-il les conditions de vente déterminées par ordonnance du juge-commissaire ? oui non La qualité du dossier constitué par le liquidateur pour procéder à la vente des biens est-elle adaptée ? oui non 2. 2. 4. 2. 4. Gestion des contentieux. Les contentieux utiles aux procédures sont-ils engagés ? oui non Le suivi des contentieux est-il satisfaisant ? oui non 2. 2. 4. 2. 5. Actions en recouvrement. Les actions en recouvrement sont-elles engagées ? oui non Les recouvrements sont-ils satisfaisants ? oui non Les recouvrements sont-ils effectués par le professionnel ? oui non Dans la négative, une mention en donnant les raisons sera portée dans la conclusion du rapport de contrôle. 2. 2. 4. 3. Traitement social en matière de liquidation. La vérification des créances salariales est présumée avoir été contrôlée lors de l'examen du mandat de représentant des créanciers. Le liquidateur demande-t-il au débiteur la liste des salariés avec les renseignements les concernant ? oui non Le liquidateur demande-t-il la liste des salariés protégés ? oui non La procédure de licenciement est-elle respectée ? oui non L'entretien préalable est-il effectué ? oui non La réunion des délégués du personnel ou du comité d'entreprise est-elle effectuée en conformité avec les règles légales ? oui non Les mesures de reclassement sont-elles adaptées ? oui non Le plan social mis en œuvre est-il adapté ? oui non Les autorités (direction du travail et inspection du travail) sont-elles régulièrement informées ? oui non Les lettres de licenciement et leurs motivations sont-elles régulières ? oui non Le professionnel suit-il les instances en cours devant la juridiction prud'homale ? oui non 2. 2. 4. 4. Traitement des clauses de réserve de propriété et autres revendications. Les modalités de traitement des clauses de réserve de propriété et des autres revendications (droits de rétention, gages sur marchandises...) apparaissent-elles satisfaisantes ? oui non Les dispositions prises pour garantir les droits des revendiquants pendant la phase d'analyse et de détermination de leurs droits sont-elles adaptées ? oui non 2. 2. 4. 5. Respect des obligations d'information des autorités de contrôle : respect des procédures d'information à l'égard des tiers. Le rapport trimestriel (art.L. 622. 7 du code de commerce) est-il établi ? oui non Le rapport annuel de liquidation prévu à l'article 123 du décret du 27 décembre 1985 modifié est-il établi ? oui non Les perspectives d'évolution et de clôture de la procédure y figurent-elles lisiblement ? oui non 2. 2. 4. 6. Sanctions. Le professionnel établit-il des rapports ou assignations destinés à mettre en œuvre des sanctions à l'encontre du dirigeant de l'entreprise ? oui non # en vue de sanctions patrimoniales ? oui non # en vue de sanctions personnelles ? oui non La qualité et le contenu des rapports ou assignations sont-ils satisfaisants ? oui non 2. 2. 4. 7. Répartitions. Le professionnel procède-t-il à des répartitions dès qu'il en a la possibilité ? oui non L'ordre du remboursement du superprivilège et l'application de l'ordre des
Dernière modification du texte le 15 avril 2010 - Document généré le 22 avril 2010 - Copyright (C) 2007-2008 Legifrance
privilèges est-il respecté ? oui non 2. 2. 4. 8. Calcul des émoluments. En cas d'anomalie, la référence précise du dossier concerné doit être mentionnée parmi les observations qui lui sont relatives. 2. 2. 4. 8. 1. Droit fixe. En cas d'extension de procédure (avec procédure unique), un seul droit fixe est-il perçu ? oui non 2. 2. 4. 8. 2. Droits gradués ou proportionnels. Les dispositions réglementaires relatives aux droits gradués ou proportionnels sont-elles respectées ? oui non Dans le cas d'application de dérogations au barème existant, ont-elles été autorisées par le président du tribunal compétent ? oui non Le professionnel limite-t-il ses demandes au titre de l'article 15 du troisième décret du 27 décembre 1985 aux contestations de créances effectuées en application du troisième alinéa de l'article 72 du premier décret du 27 décembre 1985 ? oui non Le professionnel limite-t-il ses demandes, au titre des recouvrements et des réalisations d'actifs, aux cas où ces actifs ont été recouvrés ou réalisés à la suite d'une démarche amiable ou judiciaire ? oui non 2. 2. 4. 8. 3. Modalités de prélèvement. Les prélèvements d'honoraires sont-ils précédés : # d'un arrêté de frais et émoluments signé par le juge-commissaire ou le président du tribunal ? oui non # d'une ordonnance de taxe ? oui non Le montant prélevé correspond-il au montant autorisé ? oui non Existe-t-il des différés dans la perception des honoraires ? oui non Si oui, motifs à expliquer dans la conclusion du rapport de contrôle. 2. 2. 4. 8. 4. Remboursement des frais. Le remboursement des frais et débours est-il autorisé par ordonnance ? oui non 2. 2. 4. 8. 5. Acomptes ou provisions. Des acomptes sont-ils perçus par le professionnel ? oui non Si oui : # correspondent-ils à un travail réellement effectué ? oui non # sont-ils autorisés par le président du tribunal ? oui non # sont-ils prélevés après autorisation ? oui non # le montant prélevé correspond-il au montant autorisé ? oui non 2. 2. 4. 9. Modalités de clôture et de reddition des comptes. 2. 2. 4. 9. 1. Procédures suivies pour clôturer les dossiers. Le professionnel produit-il un compte rendu de sa mission au juge-commissaire ou au président du tribunal ? oui non Les délais pour la production des redditions de comptes au greffe du tribunal sont-ils respectés ? oui non La notification des comptes au débiteur est-elle effectuée par le professionnel par lettre recommandée ? oui non La notification précise-t-elle les voies de recours ? oui non La reddition des comptes donne-t-elle une image fidèle des opérations effectuées ? oui non Présente-t-elle un solde nul ? oui non 2. 2. 4. 9. 2. Traitement des dossiers ayant donné lieu à un complément de rémunération au professionnel au titre de l'article L. 814-7 (cf. note 2). Les dossiers ayant donné lieu à un complément de rémunération versé au titre de l'article L. 814-7 ont-ils été traités de façon satisfaisante ? oui non Leur clôture est-elle intervenue alors que l'ensemble des diligences auxquelles ils devaient donner lieu ont été effectivement réalisées ? oui non 2. 2. 4. 9. 3. Etat d'avancement des dossiers les plus anciens non clôturés. Pour les dossiers les plus anciens détenus par le professionnel au jour du contrôle : Les motifs d'absence de clôture sont-ils pertinents ? oui non Des répartitions partielles de fonds ont-elles été réalisées (en particulier, paiement de créances bénéficiant du superprivilège ou de privilèges) ? oui non Si les motifs pour lesquels la clôture n'est pas intervenue dans un délai raisonnable n'apparaissent pas pertinents, une observation à leur sujet est portée à la conclusion du rapport de contrôle, les références des dossiers en cause étant précisées. 2. 2. 5. Mandats d'administrateur judiciaire en matière civile. Les administrateurs judiciaires qui reçoivent des mandats tant en matière civile qu'en matière commerciale sont contrôlés sur les deux missions. 2. 2. 5. 1. Vérifications communes à toutes les missions d'administration judiciaire civile. 2. 2. 5. 1. 1. Entrée en fonction.L'administrateur vérifie-t-il le caractère exécutoire de sa désignation et de l'éventuelle extension de sa mission ? oui non Si la mission est à durée déterminée, son éventuel renouvellement intervient-il dans les délais ? oui non Le professionnel procède-t-il à la publicité légale de sa mission ou de sa prorogation lorsque celle-ci est prévue par les textes ? oui non Cette publicité est-elle effectuée dans un délai raisonnable ? oui non Les modalités de détermination de la situation du dossier lors de l'entrée en fonction par l'administrateur judiciaire sont-elles adaptées à la nature du mandat confié ? oui non Les modalités de vérification des conditions d'assurances apparaissent-elles satisfaisantes ? oui non Les dispositions prises en cas d'absence ou de résiliation des assurances sont-elles adaptées ? oui non 2. 2. 5. 1. 2. Modalités d'information du tribunal. Des rapports de synthèse sont-ils adressés à la juridiction en cours de mandat ? oui non En cas de prorogation de mission à la demande de l'administrateur, la requête est-elle motivée ? oui non En cas de prorogation sur demande des
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parties, l'administrateur rédige-t-il un rapport ? oui non Le contenu des rapports est-il satisfaisant ? oui non 2. 2. 5. 1. 3. Modalités d'information des parties.L'administrateur informe-t-il régulièrement les parties de ses diligences et de l'évolution du dossier au cours du mandat ? oui non Les dispositions prises par le professionnel pour assurer le respect du contradictoire sont-elles satisfaisantes ? oui non Les projets de décisions importantes sont-ils soumis aux parties pour accord ? oui non L'administrateur se fait-il autoriser par la juridiction qui l'a désigné pour les décisions importantes ? oui non 2. 2. 5. 1. 4. Gestion des dossiers. Les diligences du professionnel sont-elles adaptées à la nature et à l'étendue du mandat qui lui a été confié ? oui non En cas d'administration provisoire de personnes morales de droit privé non commerçantes, les obligations légales d'approbation et de dépôt des comptes sont-elles respectées ? oui non En cas de cession d'actifs immobiliers, la procédure suivie est-elle satisfaisante ? oui non Le cas échéant, les diligences effectuées pour déterminer et régler le passif sont-elles adaptées ? oui non En cas de situation d'insuffisance de trésorerie de la structure administrée, les dispositions prises par le professionnel sont-elles adaptées ? oui non En cas de situation d'insolvabilité de la structure administrée, les dispositions prises par le professionnel sont-elles adaptées ? oui non 2. 2. 5. 1. 5. Fin de la mission. Le professionnel rédige-t-il un rapport de fin de mandat ? oui non Dans l'affirmative, ce rapport reprend-il l'ensemble des diligences effectuées pendant le déroulement de la mission ? oui non Ce rapport est-il communiqué : # à la juridiction qui a désigné le professionnel ? oui non # aux parties ? oui non Le professionnel se fait-il donner acte de la fin de son mandat par une décision judiciaire ou par une assemblée générale ? oui non Le professionnel procède-t-il à la reddition de ses comptes au greffe du tribunal ? oui non Le professionnel notifie-t-il sa reddition de comptes aux parties concernées par lettre recommandée ? oui non La notification précise-t-elle les voies de recours ? oui non La reddition des comptes donne-t-elle une image fidèle des opérations effectuées ? oui non Présente-t-elle un solde nul ? oui non 2. 2. 5. 1. 6. Etat d'avancement des dossiers les plus anciens non clôturés. Pour les dossiers les plus anciens détenus par le professionnel au jour du contrôle : # les motifs d'absence de clôture sont-ils pertinents ? oui non Si les motifs pour lesquels la clôture n'est pas intervenue dans un délai raisonnable n'apparaissent pas pertinents, une observation à leur sujet est portée à la conclusion du rapport de contrôle, les références des dossiers en cause étant précisées. 2. 2. 5. 2. Vérifications spécifiques à certaines missions. 2. 2. 5. 2. 1. Mandats d'administration provisoire de copropriété (art. 29-1 et suivants de la loi du 10 juillet 1965 et art. 62-1 du décret du 17 mars 1967). 2. 2. 5. 2. 1. 1. Mesures conservatoires. La décision est-elle notifiée aux copropriétaires ? oui non Les documents nécessaires à l'accomplissement du mandat sont-ils réclamés à l'ancien syndic (archives, comptes...) ? oui non Dans l'affirmative, les diligences accomplies sont-elles satisfaisantes ? oui non Les mesures conservatoires sont-elles adaptées ? oui non Des mesures spécifiques sont-elles prises en cas de copropriétés en difficulté ? oui non Dans ce cas, les copropriétaires sont-ils consultés ? oui non 2. 2. 5. 2. 1. 2. Gestion de la copropriété. En cas de désordres dans l'immeuble, l'administrateur missionne-t-il une entreprise spécialisée ? oui non Les délais d'envoi des ordres de service sont-ils raisonnables ? oui non Les délais d'exécution des travaux sont-ils raisonnables ? oui non La gestion du personnel est-elle assurée par l'administrateur ? oui non Les déclarations sociales sont-elles effectuées ? oui non Les délais sont-ils respectés ? oui non En cas de vente d'un lot par un copropriétaire, l'administrateur remplit-il un questionnaire notarié ? oui non Cette diligence est-elle accomplie dans un délai raisonnable ? oui non Lors de la notification par un notaire d'une vente, l'administrateur effectue-t-il une opposition sur le prix en garantie du paiement des charges ? oui non En cas de travaux, l'administrateur : # est-il autorisé par l'assemblée générale ? oui non # a-t-il recours à un architecte ? oui non Une assurance dommages-ouvrage est-elle souscrite ? oui non L'administrateur adosse-t-il, à la commande des travaux, une caution, conformément au troisième alinéa de l'article 1779 du code civil ? oui non Des actions sont-elles engagées pour recueillir des candidatures de syndic ? oui non Tous les projets de candidature sont-ils adressés aux copropriétaires ? oui non Dans la négative, les critères de sélection retenus par l'administrateur judiciaire sont-ils satisfaisants ? oui non L'ordre du jour de l'assemblée générale est-il joint à la lettre de convocation adressée aux copropriétaires ? oui non L'assemblée générale est-elle tenue par le professionnel ou un salarié de l'étude ? oui non Le procès-verbal de
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l'assemblée générale est-il adressé à l'ensemble des copropriétaires sous forme de lettre recommandée avec accusé de réception pour les absents ou les opposants ? oui non Les voies et délais de recours sont-ils indiqués ? oui non 2. 2. 5. 2. 1. 3. Achèvement du mandat.L'administrateur judiciaire demande-t-il quitus de sa gestion aux copropriétaires ? oui non L'administrateur procède-t-il à une transmission rapide du dossier au syndic désigné ? oui non 2. 2. 5. 2. 2. Mandats d'administration provisoire d'une société civile immobilière. 2. 2. 5. 2. 2. 1. Mesures conservatoires. La décision est-elle notifiée aux associés ? oui non Les documents nécessaires à l'accomplissement du mandat sont-ils réclamés à l'ancien gérant (archives, comptes, documents administratifs et juridiques...) ? oui non Dans l'affirmative, les diligences accomplies sont-elles satisfaisantes ? oui non Les mesures conservatoires sont-elles adaptées ? oui non 2. 2. 5. 2. 2. 2. Gestion de la SCI. Les parties sont-elles convoquées ? oui non Les comptes sont-ils vérifiés ? oui non Le concours d'un expert-comptable est-il demandé ? oui non La gestion locative est-elle assurée par le professionnel ? oui non La gestion locative est-elle confiée à un agent immobilier ? oui non Un budget prévisionnel est-il établi ? oui non Des assemblées générales sont-elles convoquées ? oui non En cas de vente des biens immobiliers, la procédure suivie pour les réaliser est-elle satisfaisante ? oui non Une expertise des biens est-elle requise lorsque la vente est envisagée ? oui non L'accord des associés est-il recueilli ? oui non L'autorisation préalable du tribunal est-elle sollicitée ? oui non 2. 2. 5. 2. 2. 3. Achèvement du mandat. La fin de la mission du professionnel est-elle constatée par une assemblée générale ? oui non 2. 2. 5. 2. 3. Mandats d'administration provisoire d'une succession ou d'une indivision. 2. 2. 5. 2. 3. 1. Mesures conservatoires. Existe-t-il un inventaire, un récolement d'inventaire, un état descriptif ou estimatif de la succession ou de l'indivision ? oui non Dans l'affirmative : # les parties sont-elles convoquées à cette fin ? oui non # le concours d'un expert est-il demandé ? oui non # les polices d'assurance garantissant les biens sont-elles vérifiées ou régularisées ? oui non 2. 2. 5. 2. 3. 2. Gestion de la succession ou de l'indivision. Des actions en conservation ou en reconstitution des biens de la succession sont-elles effectuées ? oui non Dans l'affirmative, ces actions sont-elles adaptées ? oui non En cas de vente des biens mobiliers ou immobiliers, la procédure suivie pour la réaliser est-elle satisfaisante ? oui non Des diligences sont-elles accomplies pour déterminer et régler le passif de succession ou de l'indivision ? oui non Dans l'affirmative, ces diligences sont-elles adaptées ? oui non Les héritiers, co-indivisaires ou autres parties intéressées sont-ils informés ? oui non En cas de vente d'un bien de la succession ou de l'indivision, leur accord est-il recueilli ? oui non 2. 2. 5. 2. 3. 3. Achèvement du mandat. En cas de liquidation de la succession ou de partage de l'indivision effectuée par l'administrateur judiciaire, celle-ci : # est-elle autorisée sur accord amiable des héritiers ? oui non # résulte-t-elle d'une décision de justice ? oui non 2. 2. 5. 2. 4. Frais et émoluments. En cas d'anomalie, la référence précise du dossier concerné doit être mentionnée parmi les observations qui lui sont relatives. 2. 2. 5. 2. 4. 1. Provisions et frais pour le fonctionnement des dossiers. Les provisions pour le fonctionnement des dossiers, perçues par l'administrateur à l'ouverture du dossier ou au cours de la mission, sont-elles versées à la Caisse des dépôts et consignations ? oui non 2. 2. 5. 2. 4. 2. Emoluments. 2. 2. 5. 2. 4. 2. 1. Calcul et taxation des émoluments. Les émoluments sont-ils calculés selon un barème propre à la juridiction ? oui non Sont-ils calculés selon un tarif horaire autorisé par le tribunal ? oui non Sont-ils calculés selon un état de frais ? oui non La taxe est-elle arrêtée par le président du tribunal ? oui non 2. 2. 5. 2. 4. 2. 2. Modalités de prélèvement. Les prélèvements d'honoraires sont-ils précédés : # d'un arrêté de frais et émoluments signé par le juge-commissaire ou le président du tribunal ? oui non # d'une ordonnance de taxe ? oui non Le montant prélevé correspond-il au montant autorisé ? oui non Existe-t-il des différés dans la perception des honoraires ? oui non Si oui, motifs à expliquer dans la conclusion du rapport de contrôle. 2. 2. 5. 2. 4. 2. 3. Remboursement des frais. Le remboursement des frais et débours est-il autorisé par ordonnance ? oui non 2. 2. 5. 2. 4. 2. 4. Acomptes ou provisions. Des acomptes sont-ils perçus par le professionnel ? oui non Si oui : # correspondent-ils à un travail réellement effectué ? oui non # sont-ils autorisés par le président du tribunal ? oui non # sont-ils prélevés après autorisation ? oui non # le montant prélevé correspond-il au montant autorisé ? oui non 2. 2. 6. Autres mandats. 2. 2. 6. 1. Mandats de syndic. Les dossiers détenus par les professionnels au titre de la loi du 13 juillet 1967 font-ils l'objet de toutes les
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diligences utiles à permettre leur clôture ? oui non Les administrateurs judiciaires qui détiennent des mandats de syndic ont-ils, à leur étude, le personnel qualifié pour les suivre ? oui non 2. 2. 6. 2. Autres mandats. Le professionnel justifie-t-il d'un mandat amiable (lettre de mission, procès-verbal d'assemblée générale...) ou judiciaire ? oui non Le cas échéant, l'existence d'un mandat autre que ceux prévus au livre VI du code de commerce, dans une affaire où le professionnel intervient ou est intervenu sur le fondement des dispositions de ce livre, est-elle justifiée (cette question vise notamment les mandats de séquestre) ? oui non Lors de la perception des honoraires, le professionnel justifie-t-il d'un accord préalable exprès du mandant ou d'une décision judiciaire arrêtant sa rémunération ? oui non Lorsque le professionnel est appelé à administrer l'entreprise et / ou à faire fonctionner sous sa signature les comptes bancaires de l'entreprise pour laquelle il est mandaté : # les procédures de suivi de l'exploitation sont-elles adaptées ? oui non # les moyens de paiement sont-ils signés ou contresignés par le professionnel ou un salarié de l'étude ? oui non # les procédures de suivi de la trésorerie sont-elles adaptées ? oui non
TROISIÈME PARTIE
Observations et conclusions des contrôleurs (1)
3. 1. Conclusions sur l'organisation et la gestion de l'étude. 3. 1. 1. Compte rendu des vérifications portant sur les informations contenues dans le document permanent. 3. 1. 2. Réponses aux questions posées appelant des observations. 3. 1. 3. Observations des contrôleurs sur l'organisation et la gestion de l'étude au vu, notamment, de la fiche d'actualisation la plus récente jointe au document permanent. 3. 1. 4. Conclusion. 3. 2. Conclusions sur la comptabilité spéciale et son environnement. 3. 2. 1. Réponses aux questions posées appelant des observations. 3. 2. 2. Observations des contrôleurs sur la comptabilité spéciale et son environnement. 3. 2. 3. Conclusion. 3. 3. Conclusions sur l'exercice de sa mission par le professionnel. 3. 3. 1. Réponses aux questions posées appelant des observations. 3. 3. 2. Observations des contrôleurs sur l'exercice de sa mission par le professionnel. 3. 3. 3. Conclusion. 3. 4. Remarques du professionnel sur son contrôle et les conditions de son activité. Si le professionnel souhaite, au cours du contrôle, faire mentionner certaines observations, elles sont consignées dans cette rubrique. 3. 5. Conclusion générale du rapport de contrôle.
(1) Les observations issues des réponses aux questions posées mentionnent la référence du paragraphe concerné ; en cas d'anomalies, la référence précise du dossier ou des dossiers concernés est mentionnée (nom et numéro du répertoire).
ANNEXE 8-6 (ANNEXE À L'ARTICLE A. 821-1)
Article Annexe 8-6
HAUT CONSEIL DU COMMISSARIAT AUX COMPTES Règlement intérieur
Vu les articles L. 821-1 à L. 822-16 du code de commerce ;
Vu le décret n° 69-810 du 12 août 1969 modifié relatif à l'organisation de la profession et au statut professionnel des commissaires aux comptes ;
Le Haut Conseil du commissariat aux comptes a adopté le règlement intérieur suivant : CHAPITRE IER : DES INCOMPATIBILITES ET DES CONFLITS D'INTERETS Article 1er Dans le délai d'un mois à compter de sa nomination, chaque membre du haut conseil adresse au président la liste des fonctions et des mandats exercés selon l'article R. 821-4. Il l'informe également en cours de
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mandat de toute modification affectant cette liste. Ce délai court à compter de la publication du règlement intérieur au Journal officiel de la République française. Les informations reçues ou déclarées par le président sont conservées dans un dossier ouvert au nom de chaque membre et tenu par le secrétariat général. Article 2 Aucun membre ne peut délibérer sur une affaire individuelle en lien avec les fonctions et les mandats mentionnés ci-dessus ou qui le place en situation de conflit d'intérêts. Article 3 Chaque membre avise le président de tous éléments incompatibles avec une participation à une délibération du conseil. Le président informe par écrit l'intéressé qu'il prend acte de cette incompatibilité ou que les éléments fournis ne constituent pas un empêchement rendant impossible sa participation à la délibération. Article 4 Le président peut d'office aviser par écrit un membre du haut conseil qu'il ne peut délibérer sur une affaire en raison de la nature des fonctions et mandats exercés ou détenus par lui ou qu'il s'apprête à détenir. Il recueille les observations de l'intéressé qui peut solliciter dans les huit jours qui suivent la saisine du haut conseil. Ce dernier statue en début de séance à main levée ou par bulletin secret, selon les conditions de majorité et de quorum prévues aux articles L. 821-3 et R. 821-9. Article 5 Lorsque le président constate l'incompatibilité mentionnée à l'article 3, il en informe à l'ouverture de la séance les membres du haut conseil et mention en est portée sur le procès-verbal de la séance. Article 6 Lorsque le haut conseil statue sur une incompatibilité, la décision signée par le président est annexée au procès-verbal de la séance. Article 7 Lorsqu'un membre du haut conseil commet des manquements graves au sens de l'article R. 821-4, le président notifie, par lettre recommandée avec demande d'avis de réception à l'intéressé, les manquements constatés en vue d'y mettre fin et recueille ses observations.S'il n'est pas mis fin à ces manquements, le président avise l'intéressé que sa démission d'office sera inscrite à l'ordre du jour de la prochaine séance du haut conseil. Article 8 La démission d'office est prononcée par décision du haut conseil statuant dans les conditions prévues à l'article R. 821-4. Article 9 Les décisions rendues en application de l'article 8 sont signées par le président et versées dans un registre créé à cet effet. Copies de ces décisions sont notifiées à l'intéressé et transmises sans délai au garde des sceaux et au commissaire du Gouvernement. CHAPITRE II : DES COMMISSIONS SPECIALISEES Article 10 Le haut conseil constitue les deux commissions relatives à l'appel public à l'épargne et aux associations. Article 11 Le haut conseil peut constituer d'autres commissions dont il fixe les missions et, le cas échéant, la durée. Article 12 Les commissions sont présidées par un membre du haut conseil. Elles sont en outre composées de deux membres au moins du haut conseil. Les présidents et les membres des commissions mentionnées à l'article 10 sont désignés pour une durée de trois ans renouvelable par le haut conseil. Le président et les membres des commissions mentionnées à l'article 11 sont désignés par le haut conseil qui fixe la durée de leurs mandats sans que celle-ci ne puisse excéder trois ans. Les commissions peuvent s'adjoindre la participation d'experts avec voix consultative. Lorsque ces derniers concourent à la mission de la commission, ils sont désignés par le président du haut conseil pour une durée fixée par lui sur proposition de la commission. Lorsqu'ils sont sollicités à titre occasionnel ou ponctuel, ils sont désignés par le président de la commission après avis conforme du président du haut conseil. Article 13 En cas d'empêchement temporaire ou définitif d'un membre constaté par le haut conseil ou en cas d'incompatibilités constatées dans les conditions du chapitre Ier rendant impossible le bon fonctionnement de la commission, il est procédé au remplacement de ce membre par le haut conseil. Le nouveau membre est désigné soit pour la durée de l'empêchement temporaire ou de l'incompatibilité, soit jusqu'à l'expiration de la mission du membre empêché lorsque l'empêchement ou l'incompatibilité sont définitifs. Article 14 Les commissions soumettent au haut conseil des projets d'avis ou des propositions de décisions. Elles peuvent aussi être consultées pour donner un avis technique. Article 15 Les commissions sont saisies par le président du haut conseil. Il peut en saisir une ou plusieurs, séparément ou conjointement. Les débats au sein des commissions sont confidentiels. Article 16 Les commissions tiennent des séances dont elles fixent librement l'organisation. Elles transmettent les conclusions de leurs travaux au président du haut conseil qui inscrit l'examen de leurs projets, avis ou propositions à l'ordre du jour du haut conseil, au plus tard dans le délai de deux mois à compter de leur transmission. Le président de la commission rapporte les projets, propositions ou avis. Article 17 Le commissaire du Gouvernement participe aux travaux
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des commissions. Article 18 Les délibérations et décisions relatives à la constitution et au fonctionnement des commissions sont prises selon les conditions de majorité et de quorum prévues aux articles L. 821-3 et R. 821-9. Elles sont signées par le président du haut conseil et le secrétaire général. CHAPITRE III : DU CONCOURS DE LA COMPAGNIE NATIONALE DES COMMISSAIRES AUX COMPTES Article 19 Au titre du concours mentionné à l'article L. 821-1, le haut conseil entretient des relations régulières avec la Compagnie nationale des commissaires aux comptes. Article 20 Le haut conseil arrête les modalités des contrôles périodiques mentionnés au b de l'article L. 821-7. Il recueille les observations de la compagnie nationale sur les conditions de leur mise en œuvre. Article 21 Pour toute autre question, la compagnie nationale peut être sollicitée par le président du haut conseil, sur délibération de ce dernier, ou d'office entre deux séances du haut conseil, en cas d'urgence. Article 22 Le concours ainsi sollicité peut se présenter sous forme de contributions de la compagnie nationale aux travaux du haut conseil et, notamment sous forme d'avis. Article 23 Lorsque le haut conseil est saisi, hors les cas relatifs à l'inscription et à la discipline, par le président de la Compagnie nationale des commissaires aux comptes conformément à l'article R. 821-6, le président du haut conseil inscrit cette demande à l'ordre du jour de la prochaine séance. Il peut aussi convoquer le haut conseil selon la procédure d'urgence. Article 24 Les avis rendus par la Compagnie nationale des commissaires aux comptes, sur saisine du haut conseil, peuvent être joints aux décisions, délibérations et avis rendus par le haut conseil. CHAPITRE IV : DU SECRETARIAT GENERAL (ART.R. 821 1) Article 25 Le secrétaire général dirige, sous l'autorité du président, l'ensemble des personnels et des services du haut conseil. Article 26 Il rend compte de la gestion administrative du haut conseil au président et l'informe des orientations de gestion retenues pour l'année à venir. Il informe périodiquement les membres du haut conseil des évolutions concernant la gestion du haut conseil. Il prépare le rapport annuel. Article 27 Il suit les travaux des commissions spécialisées. Article 28 Le secrétaire général participe, dans le cadre de ses attributions, assisté en tant que de besoin par ses collaborateurs, aux séances du haut conseil, sauf lorsque ce dernier statue comme instance de recours contre les décisions rendues par les commissions régionales d'inscription mentionnées à l'article L. 822-2 ou par les chambres régionales de discipline mentionnées à l'article L. 822-6. Article 29 Le secrétaire général veille au bon fonctionnement du secrétariat du haut conseil lorsque ce dernier statue comme instance de recours contre les décisions rendues par les commissions régionales mentionnées à l'article L. 822-2 ou par les chambres régionales mentionnées à l'article L. 822-6. CHAPITRE V : DE LA TENUE DES SEANCES DU HAUT CONSEIL STATUANT EN APPLICATION DES ARTICLES L. 821-1 A L. 821-4 ET L. 822-16 ET DES ARTICLES R. 821-6 A R. 821-11 Article 30 Au début de chaque trimestre de l'année civile, le président fixe un calendrier prévisionnel des séances à venir. Article 31 Les convocations, l'ordre du jour et les documents de travail sont adressés soit par la voie postale, soit par la voie électronique. En cas d'urgence, conformément aux dispositions de l'article R. 821-7, les membres du haut conseil peuvent être convoqués par tous moyens. Article 32 L'ordre du jour fixé par le président est adressé aux membres et au commissaire du Gouvernement au plus tard trois jours avant la séance. En cas d'urgence, il peut inscrire, sans délai, une question à l'ordre du jour. Lorsque des points n'ont pu être examinés lors de la séance à laquelle ils ont été appelés, ils sont inscrits en priorité à l'ordre du jour suivant. Article 33 Lorsque le haut conseil est saisi d'une question en application du premier alinéa de l'article R. 821-6, cette question est inscrite au prochain ordre du jour. En cas d'urgence, elle peut être inscrite le jour même de la séance. Article 34 Toute demande d'inscription à l'ordre du jour présentée par trois membres du haut conseil ou par le commissaire du Gouvernement est adressée cinq jours au moins avant la séance soit par lettre recommandée au président, soit par voie électronique à l'adresse du haut conseil. Cette question est inscrite à l'ordre du jour de la prochaine séance. En cas d'urgence ou de demande de deuxième délibération, le commissaire du Gouvernement peut faire inscrire, sans délai, une question à l'ordre du jour. Article 35 Les fonctions de secrétaire de séance sont tenues par l'un des agents du secrétariat général. Article 36 En début de séance et pour chaque délibération, le président vérifie que le quorum est atteint et il en est fait mention au procès-verbal de séance pour chaque point inscrit à l'ordre du jour de la séance. Article 37 Le haut conseil peut entendre toute
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personne susceptible de l'éclairer sur toute question inscrite à l'ordre du jour. Article 38 Les séances du haut conseil donnent lieu à l'établissement d'un procès-verbal signé par le président et le secrétaire de séance. Il contient un exposé synthétique des débats de la séance et mentionne les délibérations, décisions et les avis adoptés par le haut conseil. Peuvent, le cas échéant, y être annexées les observations du commissaire du Gouvernement. Le procès-verbal est approuvé par le haut conseil au plus tard lors de la deuxième séance qui suit. Les procès-verbaux des séances sont conservés par ordre chronologique dans un registre créé à cet effet. Chaque procès-verbal approuvé par le haut conseil donne lieu à l'établissement d'une copie transmise au commissaire du Gouvernement. Article 39 Les membres du haut conseil, le secrétaire général ou ses collaborateurs et le secrétaire de séance sont astreints au secret des délibérations. CHAPITRE VI : DES AVIS, DELIBERATIONS ET DECISIONS RENDUS PAR LE HAUT CONSEIL Article 40 Lorsqu'il statue en application du premier alinéa de l'article R. 821-6, le haut conseil est saisi par écrit. Les saisines sont enregistrées par ordre d'arrivée sur un registre d'ordre. Article 41 Lorsqu'il statue en application du deuxième alinéa de l'article R. 821-6, le haut conseil est saisi, à peine d'irrecevabilité, par lettre recommandée avec demande d'avis de réception. Les demandes sont enregistrées par ordre d'arrivée sur un registre d'ordre autre que le registre mentionné à l'article 40, après application de l'article 44. Article 42 Lorsque le commissaire du Gouvernement sollicite une seconde délibération en application de l'article R. 821-10, il peut valablement saisir le haut conseil par simple lettre ou par écrit électronique. Article 43 Les saisines mentionnées à l'article 41 doivent comporter la qualité du requérant, l'objet de la saisine et son fondement juridique. Article 44 Le secrétaire général a qualité pour apprécier la régularité de la saisine et peut solliciter du demandeur de la rendre conforme. Il adresse, concomitamment à son enregistrement, une copie de la saisine, le cas échéant régularisée, au commissaire du Gouvernement. Article 45 Les demandes mentionnées à l'article 41 sont examinées selon une priorité fixée par le président du haut conseil compte tenu toutefois des délais et des urgences prévus par les dispositions des articles R. 821-6 à R. 821-14 et du présent règlement. Article 46 Outre les avis mentionnés aux articles L. 821-1, L. 822-11 et L. 822-16, le haut conseil, après délibération, émet des avis sur toutes les questions dont il peut être saisi conformément aux articles L. 821-1 et R. 821-6 et rend des décisions concernant l'application du dernier alinéa de l'article L. 822-11. Ces avis ou décisions ont une portée générale. Article 47 Le haut conseil rend aussi, selon les conditions de majorité et de quorum mentionnées aux articles L. 821-3 et R. 821-9, des délibérations concernant son fonctionnement interne et l'établissement ou le suivi de ses relations avec les autorités, la Compagnie nationale des commissaires aux comptes ou les autres régulateurs nationaux ou internationaux. Article 48 Les avis et les décisions rendus en application des articles L. 821-1, L. 822-11 et L. 822-16 et de l'article 46 du présent règlement sont signés par le président. Ils sont enregistrés chronologiquement et versés dans un registre créé à cet effet. Sont joints à ces avis ceux rendus par les organismes mentionnés à l'article L. 821-2. Peuvent être aussi joints les avis rendus par la Compagnie nationale des commissaires aux comptes et les commissions spécialisées. Article 49 Les délibérations mentionnées aux articles 46 et 47 sont signées par le président et le secrétaire général. Elles sont versées par ordre chronologique dans un registre prévu à cet effet. Chaque délibération donne lieu à l'établissement d'une copie transmise au commissaire du Gouvernement. Article 50 Les décisions prises sur le fondement des articles L. 821-1 et L. 821-7 dans les conditions prévues aux articles L. 821-3 et R. 821-9 sont signées par le président et versées dans un registre créé à cet effet. Article 51 Les règles relatives aux décisions rendues par le haut conseil statuant comme instance d'appel des décisions rendues par les commissions régionales d'inscription et les chambres régionales statuant en matière disciplinaire sont fixées par la section 1 du chapitre II du titre II du présent livre. Article 52 Lorsqu'il statue dans ces matières, le haut conseil se réunit spécialement à cet effet et se constitue en formation de recours. Il siège avec le secrétaire et le rapporteur nommés dans les conditions prévues à l'article R. 821-2, hors la présence du secrétaire général.
ANNEXE 8-7 (ANNEXE À L'ARTICLE A. 822-6)
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Article Annexe 8-7
Le programme est le suivant :
Présentation générale des missions du commissaire aux compte s
Caractéristiques générales des missions. Audit comptable et financier : Définition et objectifs ; Principes et normes comptables, sources et organismes émetteurs ; Normes d'exercice professionnel et normes internationales d'audit, organismes émetteurs (nationaux et internationaux). Nature et conditions d'exercice des missions du commissaire aux comptes : Missions du commissaire aux comptes (mission générale, missions connexes, missions particulières) ; Conditions d'exercice des missions.
Méthodologie et techniques d'audit
Démarche générale d'audit : Objectifs de la certification ; Notions de risques et d'importance relative ; Sondages en audit ; Etapes de la démarche générale. Organisation de la mission : Documentation, délégation et supervision des travaux ; Utilisation des travaux effectués par d'autres personnes, relations avec les confrères. Appréciation du contrôle interne : Compréhension et description des systèmes significatifs ; Vérification du fonctionnement ; Evaluation finale et incidence sur la mission ; Rapport sur le contrôle interne. Analyse préliminaire des opérations ponctuelles ou exceptionnelles. Obtention d'éléments probants et techniques d'audit : Examen analytique ; Observation physique ; Confirmation directe ; Lettre d'affirmation. Prise en compte d'un milieu informatisé : Le traitement informatisé de l'information ; Risques informatiques, prise en compte des systèmes d'information dans la démarche ; Contrôle assisté par ordinateur. Travaux de fin de mission : Examen des comptes annuels ; Evénements postérieurs ; Rapports et formulation de l'opinion. Organisation de la mission : Documentation, délégation et supervision des travaux ; Utilisation des travaux effectués par d'autres personnes, relations avec les confrères.
Vérification et informations spécifiques
Domaine des vérifications spécifiques : Délimitation par la loi et nature des vérifications et informations. Examen limite : Définition et objectifs ; Méthodologie et techniques. Communication des constatations faites lors des vérifications spécifiques : Au conseil d'administration et à l'assemblée générale.
Missions connexes
Interventions consécutives à des opérations particulières décidées par la société : Opérations concernant le capital social ; Opérations concernant les dividendes ; Opérations de transformation ; Autres opérations. Interventions consécutives à des événements survenant dans la société : Révélation des faits délictueux ; Procédure d'alerte ; Autres événements.
Missions particulières
Commissariat aux apports. Commissariat à la fusion.
Organisation professionnelle du commissariat aux comptes et déontologie
Organisation de la profession et statut professionnel des commissaires aux comptes. Déontologie et indépendance.
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Organisation judiciaire
Juridictions civiles, pénales et administratives. Juridictions commerciales et prud'homales. Arbitrage. Expertise judiciaire.
Droit commercial général
Actes de commerce et commerçants ; fonds de commerce. Contrats commerciaux. Droit national des entreprises en difficulté. Valeurs mobilières et marchés financiers.L'Autorité des marchés financiers (organisation, rôle et pouvoirs).
Droit des groupements
Sociétés civiles et commerciales. Sociétés soumises à un régime particulier (sociétés à capital variable, sociétés coopératives, sociétés du secteur public, sociétés d'économie mixte, sociétés mutuelles ou à forme mutuelle). Groupements d'intérêt économique. Associations. Notions fondamentales de droit européen.
Droit civil
Normes juridiques françaises et communautaires. Classification des droits. Sûretés : notions générales. Obligations : formation et effets du contrat. # Principes généraux de la responsabilité délictuelle. Contrats spéciaux (vente, louage de chose, mandat, prêt, dépôt).
Droit du travail et sécurité sociale
Réglementation du travail. Relations individuelles et collectives du travail. Rémunération du travail. Sécurité sociale et régimes de prévoyance. Participation des salariés aux fruits de l'expansion de l'entreprise.
Droit pénal
Classification des infractions. Eléments constitutifs des infractions. Peines applicables aux personnes physiques et aux personnes morales. Droit pénal des affaires (délits spécifiques à chaque type de groupement, vol, escroquerie, abus de confiance, banqueroute).
Droit fiscal
Notions générales de finances publiques. Principes fondamentaux de la fiscalité. Territorialité de l'impôt. Impôts directs. Droits d'enregistrement et timbre. Taxes sur le chiffre d'affaires. Impôts locaux. Contentieux de l'impôt.
Comptabilités
Comptabilité générale : Articles L. 123-12 à L. 123-28 et R. 123-172 à R. 123-208 du code de commerce ; Plan comptable général ; Normes comptables internationales ; Les comptes consolidés ; L'évaluation des entreprises ; Les fusions ; La publicité des comptes annuels.
Comptabilité analytique et contrôle de gestion
Analyse des coûts et politiques des prix : Les coûts complets et les coûts partiels. Analyse des coûts et gestion des écarts : Imputation rationnelle des charges fixes et coûts préétablis, différentes analyses d'écarts. Analyse des coûts et mesure des performances : Prix de cession internes, comptes de surplus, tableaux de bord, etc. Analyse des coûts et contrôle interne. La démarche budgétaire et les comptes prévisionnels, simulations et point mort.L'articulation budget et stratégie.
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Economie et gestion des entreprises
Les fonctions de l'entreprise : Commerciale ; Production ; Recherche et développement ; Approvisionnements ; Personnel ; Les fonctions administratives, comptables et financières ; Contrôle de gestion. Analyse financière et finance d'entreprise : Analyse de la situation financière (résultat, structure, risques financiers) ; La gestion financière à court terme (budgets de trésorerie, comptes prévisionnels, modes de financement des besoins à court terme et de trésorerie) ; La gestion financière à moyen et long terme (stratégie financière, principaux modes de financement, plan d'investissement et de financement).L'informatique : Connaissance générale de la fonction informatique ; Connaissance de base des systèmes d'information, et notamment des systèmes d'exploitation et des progiciels de gestion.
Méthodes quantitatives et mathématiques appliquées
Statistique descriptive (séries statistiques à une et à deux variables, indices). Probabilités, sondages et échantillonnages. Mathématiques appliquées à la gestion : mathématiques financières.
ANNEXE 8-8 (ANNEXE À L'ARTICLE A. 822-29)
Article Annexe 8-8
CONDITIONS MINIMALES D'ASSURANCE CIVILE
PROFESSIONNELLE DES COMMISSAIRES AUX COMPTES Article 1er
Le présent contrat a pour objet de garantir l'assuré, sous réserve des limites et exclusions prévues aux articles 2 et 3, contre les conséquences pécuniaires de la responsabilité civile définie à l'article L. 822-17 et au deuxième alinéa de l'article L. 823-13 qu'il peut encourir.
Article 2
Sont exclus de la garantie prévue à l'article 1er : 1° Les dommages causés : a) Aux conjoints, ascendants et descendants de l'assuré ; b) A ses associés dans une activité professionnelle commune ; c) A ses collaborateurs et préposés dans l'exercice de ses fonctions ; d) Lorsque l'assuré est une personne morale, ses présidents, directeurs généraux et gérants ainsi que leurs conjoints, descendants et ascendants. 2° Les dommages provenant d'une faute intentionnelle et dolosive de l'assuré. 3° Les dommages résultant d'une activité étrangère à la profession de commissaire aux comptes ou qui lui est interdite. 4° Les conséquences d'engagement particulier dans la mesure où elles excèdent celles auxquelles l'assuré est tenu en vertu des textes légaux sur la responsabilité. 5° Les amendes fiscales et autres pénalités infligées à titre personnel à l'assuré. 6° Les dommages mentionnés à l'article L. 121-8 du code des assurances. 7° Les dommages résultant d'un accident, c'est-à-dire de tout événement imprévu et extérieur à la victime et à la chose endommagée, constituant la cause d'une atteinte corporelle à un être vivant ou une détérioration, destruction ou perte d'une chose ou substance.
Article 3
La garantie du présent contrat s'applique à concurrence de la limite par année par sinistre et par assuré fixées aux conditions particulières. Les frais de procès, quittances et autres frais de règlement ne viennent pas en déduction du montant de la garantie. Toutefois, en cas de condamnation supérieure à ce montant, ils sont supportés par l'assureur et l'assuré dans la proportion de leur part
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respective dans la condamnation.
Article 4
L'assuré est obligé de donner son avis à l'assureur de toute réclamation susceptible de constituer un sinistre dans le délai d'un mois à partir de la date où il en a eu connaissance.
Article 5
Les déchéances motivées par un manquement de l'assuré commis postérieurement au sinistre ne sont pas opposables aux victimes ou à leurs ayants droit.
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