Appeals against Expert Appointments in Insolvency Proceedings: the Monopoly of the Public Prosecutor Confirmed

Imagine: you are the owner of commercial premises in Billère, and your tenant, a company renting out equipment, is placed into judicial liquidation. The juge-commissaire appoints an expert to assess the condition of the premises. You believe this expert is biased. You want to appeal against the order. Good luck? Not really. The French Supreme Court has just reiterated in a decision of 3 July 2024: only the public prosecutor (procureur) can challenge this type of decision. A rule that may seem unfair, but has its logic.

Why such a restriction? Because, in insolvency proceedings (sauvegarde, redressement, judicial liquidation), the aim is to move quickly to preserve the company or distribute assets. Allowing each party to appeal against the appointment of an expert would slow everything down. But then, what to do if the expert is incompetent or biased? The Supreme Court's decision answers by specifying that the term "expert" includes any technician appointed by the juge-commissaire, whether a surveyor, accountant or architect. A useful clarification to avoid detours.

This decision directly concerns owners of premises in Lourdes, creditors of a company in Pau, or co-owners of a building whose managing agent is in administration. Because, in these situations, the juge-commissaire may order an investigative measure (e.g., an accounting or technical expert's report) and you will not be able to challenge it immediately. But be careful: this does not deprive you of all remedies. You will be able to challenge the expert's report later, or apply to the trial judge. The key is to understand the procedure.

The facts: a story like many others

The case begins with the company Location de matériel plus, based in Billère, specialising in hiring out construction equipment. Beset by financial difficulties, it is placed into judicial liquidation. The liquidator, appointed by the Commercial Court of Pau, must sell the assets, notably the business and equipment. But soon, a problem arises: several other companies (TGL management, TBI constructions, Charbonnel Interiors, Eclat bâtiment, Artefact, etc.) claim ownership of certain items. To sort out the truth, the juge-commissaire appoints a technical expert tasked with identifying the items and their owner.

Problem: company TGL management challenges this appointment. It considers that the expert is not competent, or that his brief is too broad. So it appeals against the order of the juge-commissaire. But the Court of Appeal of Pau dismisses its appeal, on the ground that, under Article L. 661-6 of the Commercial Code, decisions appointing an expert in insolvency proceedings are subject to appeal only by the public prosecutor. TGL management appeals to the Supreme Court, arguing that the term "expert" refers only to court-appointed experts on an official list, not to a mere technician.

The Supreme Court, in its decision of 3 July 2024, dismisses the appeal. It confirms that the word "expert" must be understood in a broad sense: it includes any person appointed by the juge-commissaire for an investigative measure, whether an accountant, architect, surveyor or technician. Consequently, the right of appeal is reserved to the public prosecutor. The decision is clear and final.

The reasoning of the court — detailed

To understand the decision, one must look at Article L. 661-6, I, of the Commercial Code. This provision states that judgments or orders relating to the appointment of an expert or his replacement are subject only to an appeal by the public prosecutor. In other words, if the juge-commissaire appoints an expert, neither the debtor (the company in liquidation), nor the creditors, nor third parties (such as TGL management) can appeal against this decision. Only the public prosecutor can.

But what is the basis for this rule? The aim is to avoid delaying tactics that would slow down the insolvency proceedings. Imagine: every time an expert is appointed, each dissatisfied party could appeal, suspending the proceedings for months. This would be contrary to the speed needed to save the company or distribute funds to creditors. That is why the legislature has limited the right of appeal to the public prosecutor, as guardian of the general interest.

In this case, company TGL management argued that the appointed expert was not a genuine "expert" within the meaning of Article L. 661-6, but a mere technician. It hoped to escape the restriction. But the Supreme Court swept aside this argument: the term "expert" has a generic meaning and refers to all investigative measures entrusted to third parties appointed because of their technical skills. It does not matter whether they are on an official list or not. What matters is their mission: to provide technical insight to the court.

Thus, the decision confirms a consistent line of authority. It is neither an evolution nor a reversal, but a welcome clarification. The lower courts (court of appeal) and the Supreme Court are aligned: no appeal is possible for private parties against the appointment of an expert in insolvency proceedings, whatever the type of expert's report. A certainty that avoids many debates.

What this means for you — practically

If you are the owner of premises let to a company placed into judicial liquidation, as in Billère, this decision concerns you. Let's imagine: the juge-commissaire appoints an expert to assess the condition of the premises and quantify the damage. You believe the expert is biased (for example, he has already worked for the liquidator). You want to appeal against his appointment. Well, you cannot. Only the public prosecutor can. But in practice, the prosecutor will only intervene if the expert's report is manifestly irregular or contrary to public policy.

If you are a creditor, for example a supplier of equipment in Lourdes, and the juge-commissaire appoints an expert to verify the validity of your claims, you cannot challenge this appointment. However, you will be able to challenge the expert's report itself later, during the procedure for verifying claims. But be careful: challenging a report is more difficult and more costly than challenging the appointment. It is therefore better to be vigilant from the outset.

If you are a co-owner of a building whose managing agent is in administration, and the juge-commissaire appoints an expert to assess urgent works, you cannot appeal. But you can ask the juge-commissaire to recuse the expert for a serious reason (bias, incompetence). This request must be made quickly, within days of the appointment. undefined, I have seen cases where parties have succeeded in having an expert replaced by demonstrating a conflict of interest, but this is rare.

In summary, this decision deprives you of an immediate remedy, but does not deprive you of all remedies. You must act upstream, by checking the expert's qualifications, or downstream, by challenging the report. And above all, do not delay: the time limits in insolvency proceedings are very short (often 10 days to act).

Four tips to avoid this type of dispute

• Check the expert's independence before his appointment: As soon as you become aware of the proposed appointment, find out about the expert. Has he already worked for the liquidator or for an opposing party? If so, ask the juge-commissaire to recuse him before he accepts the assignment. A simple reasoned letter may suffice.
• Actively participate in the expert's operations: Even if you cannot challenge the appointment, you can be present during the operations, ask questions, provide documents. This allows you to influence the report and detect any errors. Do not remain passive.
• Keep all supporting documents carefully: Contracts, invoices, photos, emails... everything that proves your right or your claim. In the event of a subsequent challenge to the report, these elements will be essential. Also consider having the condition of the premises recorded by a bailiff before the expert's report.
• Consult a lawyer lawyer at the first signs of difficulty: If your tenant is in insolvency proceedings, or if you are a creditor, do not wait for the appointment of an expert. A lawyer can advise you on the steps to take to protect your interests, including requesting protective measures. The cost of a consultation (€45 with Maître Zakine) is negligible compared to the stakes.

Further reading: related case law and developments

This decision is part of a consistent line of authority. Already, in a decision of 15 January 2020 (no. 18-25.417), the Supreme Court had held that an appeal against an order appointing an expert in judicial liquidation was open only to the public prosecutor. The novelty here is the clarification on the concept of "expert": it includes any technician, even if not on an official list. This rules out attempts by parties to circumvent the rule by arguing that the technician was not a "real" expert.

Some lower courts (such as the Court of Appeal of Versailles) had sometimes allowed an appeal by parties when the expert was not on the list, but the Supreme Court has put an end to this divergence. The rule is now uniform throughout the country.

For the future, this solution reinforces the speed of insolvency proceedings. But it may be criticised by advocates of creditors' rights, who see it as an excessive limitation on their access to the court. Perhaps the legislature will one day amend the law to allow a limited appeal, for example in case of nullity of the appointment. In the meantime, parties must be extra vigilant at the stage of the expert's report itself.

Key points to remember

FAQ:

Can I appeal against the appointment of an expert in insolvency proceedings? No, only the public prosecutor can. But you can ask for his recusal from the juge-commissaire or challenge his report later.

What if the expert is biased? Gather evidence of bias (links to a party, statements) and apply to the juge-commissaire in writing. If he refuses, you can challenge the expert's report before the court.

What are the time limits for acting? Very short: generally 10 days from the order to request recusal. Then, to challenge the report, you have until the close of the procedure for verifying claims.

Is a technician not on an expert list covered? Yes, the decision specifies that the term "expert" includes any technician appointed by the juge-commissaire.

Can I obtain damages if the expert commits a fault? Yes, if you prove a fault (e.g., gross error, bias) and loss. You will then have to sue the expert in tort (Article 1240 of the Civil Code).