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Located at the heart of current economic and social issues, and propelled to the rank of central discipline of business law by the economic and financial crisis that has shaken the country for more than five years now, the law of companies in difficulty is, almost as much as the legislation governing the labor market and taxation, which is constantly changing .
The introduction of the “Professional Recovery” procedure:-
It is therefore not at all surprising to find, if we adopt a retrospective analysis, that it has been revised on average every five years over the past three decades, and that it has been used by governments which have succeeded over the years as a major instrument of economic policy.
The announcement made a few months ago, by the current political majority, of an umpteenth attempt to simplify and secure business life will therefore naturally give birth to a new reform in this area, aimed in particular, among other objectives, to promote the prevention of difficulties and to simplify existing procedures.
Professional Recovery Eligibility and Prerequisites: –
Not to mention all the changes brought about by such a reform, which has just entered into force, since the implementing decree of Ordinance “n°. Law No. 2014-326 of March 12, 2014 reforming the prevention of business difficulties and collective proceedings “was published in the Official Journal on July 1, it is an innovation which, in our opinion, deserves to be noted .
The legislator has indeed proceeded, on such an occasion, to the creation of a new procedure, which, unlike the others, has nothing to do with a collective procedure, in that it does not aim to organize a global payment creditors according to the financial and patrimonial situation of the entrepreneur in difficulty, but only to obtain a cancellation, when several conditions are met, of the liabilities of the dissatisfied debtor.
Such a system, called “professional recovery”, is obviously inspired by the procedure for personal recovery without judicial liquidation of the law of over-indebtedness of individuals, and, like it, pursues two essential categories of objectives.
The first, first of all, is to allow the individual entrepreneur and in good faith, but whose situation seems hopeless, to bounce back.
The second is therefore to increase the overall efficiency of dealing with business difficulties by applying, where permitted and necessary, a simplified, less costly and faster procedure, since it lasts a maximum of four months.
However, you will have understood it: the right not to pay one’s debts is deserved, and this is more than justified. It follows logically that such a procedure can only concern a minority of companies in difficulty, satisfying a multitude of prerequisites.
In summary, in order to reflect the scope of application outlined by the authors of the reform, professional recovery can only benefit small professionals who are “dissatisfied” and “in great difficulty”.
By such terms, we must more precisely understand a natural person carrying out in his name and for his own account a commercial, artisanal or liberal activity on a (very) small scale, since no employee must have been hired during the last six months and that all of the superior assets must not exceed the threshold of 5,000 euros, but having nevertheless plunged it into an irreparably compromised situation.
There is also another essential parameter for the benefit of such a mechanism: good faith. Used as a means of combating all categories of abuse and misappropriation that the appetite of certain unscrupulous protagonists could provoke, such a requirement justifies the broad powers of investigation conferred on the actors of the procedure, as well as the possibility of switching, at any time , on a judicial liquidation, or even cancel the cancellation of debts after the closing of the procedure.
Professional reinstatement was designed, in short, as a pragmatic alternative to judicial liquidation as regards the handling of files whose impecuniosity is beyond doubt, but is of course not intended to be used as an instrument of management on the basis of questionable morality. ; it being further specified that it may only be pronounced with regard to the same person once every five years.
Also pursuing a goal, little avowed, of disguising statistics for the benefit of the government, which will not fail to underline a reduction in the number of judicial liquidations opened in France, such a device is certainly not revolutionary, in that it does not will not have the effect of putting an end to the difficulties of companies and put an end to the sluggishness of the current economic climate, but seems to constitute a welcome innovation, provided however that the ramparts erected against its diversion produce the expected result .
