The derivative action is not on the plan performance supervisor jurisdiction

24/02/2021

High Court, commercial chamber, November 12, 2020, n°19-11.972, FS-P+B

  • The context

While a company benefits from a safeguarding plan, the shareholders sue the company’s directors for damages suffered by the company for maintaining a loss-making business and for refusing to disclose corporate documents during the performance of their duties.

The Court of Appeal declared the action inadmissible on the grounds that the derivative action, which seeks to engage the liability of the company’s directors by the shareholders, can only be brought in the event of collective proceedings by the plan performance supervisor in his capacity as representative of the collective interest of the creditors.

It also adds that the prejudice of a partner resulting from the mismanagement of the directors is not distinct from that caused to other creditors.

  • The question asked

The High Court had to rule on the following question: does the derivative action participate in the reconstitution of the creditors’ pledge?

In the first case, only the plan performance supervisor was admissible to act.

In the second case, the shareholders were admissible to exercise a derivative action.

  • The answer from the High Court

The High Court answers in its ruling of November 12, 2020 that:

“The derivative action […] which seeks compensation for the damage suffered by the company, escapes the monopoly of the safeguarding plan performance supervisor, who has the power to act […] only in the name and in the collective interest of the creditors, who are satisfied by the adoption of this plan. »

  • Conclusion :

This decision calls for some reservations of detail:

On the one hand, in order to justify its position which results in excluding from the monopoly of representation of creditors entrusted to the plan performance supervisor by article L. 626-25 of the Commercial Code, the derivative action exercised after the adoption of the plan, the High Court affirms that the adoption of the plan satisfies the creditors. However, one could rather try to say that it is the execution of the plan that satisfies the creditors.

On the other hand, one must question the appropriateness of such an initiative of the shareholders when the debtor must continue its activity. It seems delicate to assign the director who is still exercising his or her mission. This is the reason why liability action for the insufficiency of assets is only possible after the judicial liquidation.

By Thierry Montéran and Marine Simonnot.

Source : Légifrance


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