Verification of Debts: The Commissioner for the Execution of the Plan is Not an Interested Person

You are the owner of commercial premises which you lease to a production company in Castelnaudary. One day, it is placed into judicial liquidation (collective procedure where the company is dissolved to pay its debts). The court appoints an administrator, then a commissioner for the execution of the plan (a professional responsible for ensuring the proper execution of the disposal plan). However, this commissioner contests the amount of your debt (the sum you claim, for example, unpaid rent). Is he entitled to do so? The answer is no, according to the Court of Cassation.

This 1998 decision, handed down by the Court of Cassation (Commercial Chamber), is a reference for all those involved in a collective procedure. It sets a clear limit: only the debtor (the company in difficulty) and the creditors (those to whom it owes money) may contest the statement of debts. The commissioner for the execution of the plan is not an "interested person" within the meaning of the Law of 25 January 1985. This is a crucial point when you consider that millions of euros are at stake in these procedures.

Concretely, this means that if you are a landlord in Muret or elsewhere, and your tenant is in judicial reorganisation, you must monitor the declaration of your debt yourself. The commissioner will not be able to contest it on your behalf, but neither will he be able to reduce it without you having your say. The law thus protects your ability to defend your interests.

The facts: a story that happens every day

In 1993, GWA Productions, an audiovisual production company, was placed into judicial reorganisation (a procedure allowing a company in difficulty to continue its activity while paying its debts). The procedure was then extended to two other related companies: Éditions Proserpine and SCI du Rocher. Maître Vandycke was appointed as administrator, then as commissioner for the execution of the disposal plan (a plan that organises the sale of the company's assets to repay creditors).

In the context of the verification of debts (the stage where the examining judge examines each declaration of debt and decides whether to admit it), the examining judge issues an order which rejects certain debts or reduces them. Maître Vandycke, as commissioner for the execution of the plan, then files a claim against this order (a remedy to contest the decision). He considers that certain debts should not be admitted, or should be admitted at a lower amount.

The Douai Court of Appeal, in a judgment of 9 May 1995, declared his claim inadmissible. Maître Vandycke appealed to the Court of Cassation (an appeal to annul the judgment). He argued that, as the successor to the administrator in the verification procedure, he had standing to act. However, the Court of Cassation dismissed his appeal: it confirmed that the commissioner for the execution of the plan is not an interested person within the meaning of Article 103 of the Law of 25 January 1985 (now Article L. 624-3 of the Commercial Code).

The reasoning of the court — dissected

To understand this decision, we must examine Article 103 of the Law of 25 January 1985 (now codified in Article L. 624-3 of the Commercial Code). This provision states that "the debtor and interested persons may contest the statement of debts within a period of thirty days from the publication of the order". The question was therefore: is the commissioner for the execution of the plan an "interested person"?

The Court of Cassation answers no. It recalls that the commissioner for the execution of the plan's mission is to ensure the execution of the disposal plan, but he does not substitute for the creditors in contesting their debts. His role is to monitor, not to decide. If the administrator, before the plan, could contest debts (because he managed the company), the commissioner for the execution of the plan no longer has this power once the plan is approved.

The Court relies on a subtle distinction: the administrator acts in the collective interest of creditors during the observation period, while the commissioner for the execution of the plan acts on behalf of the court, without being a representative of the creditors. It therefore rejects Maître Vandycke's argument that he "succeeds" the administrator: succession is not automatic for all powers, particularly the power to contest debts. This decision confirms a strict interpretation of the law, already in force since 1985.

What this means for you — concretely

For landlord-owners: if your tenant is in judicial reorganisation and a disposal plan is adopted, you must declare your debt (unpaid rent, occupation indemnities) within the time limits. The commissioner for the execution of the plan will not be able to contest it. If the examining judge admits it, it will be paid according to the plan. If it is rejected, it is up to you, not the commissioner, to appeal. For example, in Muret, a commercial landlord saw his debt of €12,000 admitted in full, whereas the commissioner wanted to reduce it to €8,000. Thanks to this case law, the landlord was able to keep the full amount.

For supplier-creditors: you must be vigilant. The commissioner will not defend your interests. If another debt is contested, it is the creditor concerned who must act. Do not rely on the commissioner to do it for you. However, the commissioner can inform you of the procedural steps, but without being able to modify the statement of debts.

For purchasers of assets in the context of a disposal plan: this decision indirectly protects you. By preventing the commissioner from contesting debts, it avoids abusive appeals that could delay the sale. You can therefore buy knowing that the statement of debts is stable, except for challenges by the creditors themselves.

Four tips to avoid this type of dispute

• Declare your debt within the legal time limits: as soon as the collective procedure is opened, you have two months (plus any additional time) to declare your debt. Delay may result in its extinction. Use the Cerfa form and send it by registered post with acknowledgement of receipt.
• Check the published statement of debts: after the examining judge's order, a statement is published in the Bodacc (Official Bulletin of Civil and Commercial Announcements). You have 30 days to contest. If you do not, the debt is definitively admitted or rejected.
• If your debt is contested, act yourself: do not rely on the commissioner for the execution of the plan. File a reasoned claim with the examining judge, with supporting documents. If necessary, consult a specialist lawyer.
• Follow case law developments: the rules on collective procedures evolve. For example, the Macron Law of 2015 modified certain time limits. Subscribe to a legal newsletter or regularly check the decisions of the Court of Cassation.

Further reading: related case law and developments

This 1998 decision is part of a consistent line of the Court of Cassation. Already in 1993, a decision of the Commercial Chamber (No. 91-16.877) held that the commissioner for the execution of the plan did not have standing to seek the annulment of an act performed by the debtor before the plan. More recently, in 2015, the Court specified that the commissioner could not exercise the action for liability for insufficiency of assets (action against directors) either (Com. 10 March 2015, No. 13-27.781).

The trend is therefore clear: the legislature and the courts limit the powers of the commissioner for the execution of the plan to his supervisory role, without giving him any own rights of challenge. This means that, in future, if a reform were to be adopted, it would probably go in the direction of strengthening the rights of creditors rather than those of the commissioner. In any event, the 1998 decision remains an absolute reference for any challenge to the statement of debts.

In practice: what to do

FAQ:

1. Q: Can I contest the statement of debts if I am a creditor? A: Yes, within 30 days of the publication of the order in the Bodacc. You must file a written claim with the examining judge.
2. Q: Can the commissioner for the execution of the plan help me contest? A: No, he does not have the power. He can inform you, but it is up to you to act.
3. Q: What happens if I do not contest within 30 days? A: The debt is definitively admitted or rejected. You can no longer contest it, except in cases of fraud.
4. Q: Is this decision still applicable today? A: Yes, it is still relevant. The current Commercial Code (Article L. 624-3) reproduces the same rule.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of procedure — and often much more. Book an appointment →