PROFESSIONAL RULES PROVIDED FOR BY ARTICLE 54-1-II OF THE DECREE OF 27 DECEMBER 1985 AMENDED
Summary
Preamble.
Title I.. – Definitions.
1. 1. Judicial administrator.
1. 2. Of the mandataire judiciaire à la liquidation des entreprises.
Titre II. – Ethical principles.
2. 1. Fundamental principles.
2. 2. Obligations imposed on professionals by virtue of their public service mission.
2. 2. 1. Incompatibilities.
2. 2. 2. Independence.
2. 3. Relations with third parties.
2. 3. 1. Professional secrecy.
2. 3. 2. The image of the profession.
2. 3. 3. Advertising.
2. 3. 4. Stationery.
2. 3. 5. The professional plaque.
2. 3. 6. Public appearances.
2. 3. 7. Relations with financial institutions.
2. 3. 8. Relations with parties to proceedings.
2. 3. 9. Relations with courts and public authorities.
2. 3. 10. Relations with members of other legal professions.
2. 4. relations with the profession.
2. 4. 1. relations with professionals.
2. 4. 2. collaborators.
2. 4. 3. relations with representative bodies.
Title III. – training and traineeship.
3. 1. access to the training period.
3. 2. the training period charter.
3. 3. initial theoretical training.
3. 4. continuing training.
3. 5. funding of training.
Title IV. – methods of practising the profession.
4. 1. professional domicile.
4. 2. branch offices.
4. 3. professional card.
4. 4. practice as a company.
4. 5. execution of mandates and engagements.
4. 5. 1. delegations of authority.
4. 5. 2. delegations and signature procedures.
4. 5. 3. External parties.
4. 6. Storage of documents and security of files.
4. 7. Provisional administration.
4. 8. Accounting.
4. 8. 1. The register.
4. 8. 2. Accounting obligations.
4. 8. 3. Special accounting.
4. 8. 4. Approval of special accounting software.
Title V. – Supervision of the business.
5. 1. Various aspects of supervision and control.
5. 2. Periodic and occasional controls.
5. 3. Control by the statutory auditor chosen by the professional on the basis of article 58, paragraph 2, of decree no. 85-1389 of 27 December 1985 as amended.
5. 4. Inspection.
Appendix I. – Special accounting rules for court-appointed administrators and company liquidation agents.
I. – Definition of accounting books.
1. 1. The directory of mandates.
1. 2. The journal ledger.
1. 3. Subsidiary journals.
1. 4. The general ledger.
1. 5. Subsidiary ledgers.
1. 6. Periodic statements.
1. 6. 1. Quarterly statements.
1. 6. 2. control statements.
1. 7. receipt books for cash remittances.
II. – Description of the set of entries.
2. 1. characteristics of the entry.
2. 2. Entering entries.
2. 3. Editions.
2. 4. Validity of accounting entries.
III. – Accounting in euros.
3. 1. Reminder of the rules.
3. 2. Handling differences.
3. 3. Conversion of historical data.
Appendix II. – On the approval of software for the automated processing of special accounting.
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PROFESSIONAL RULES PROVIDED FOR BY ARTICLE 54-1-II OF THE DECREE OF 27 DECEMBER 1985 AMENDED
Preamble
Professional rules bring together all the ethical prescriptions which, pursuant to the legal and regulatory provisions in force on the date of their approval by the Minister of Justice, are binding on all judicial administrators and all judicial representatives for the liquidation of companies in the exercise of their activity. They may be amended as these provisions evolve. These rules also apply to professionals removed from the lists and authorised to continue one or more current cases, pursuant to articles 9and 24 de la loi n° 85-99 du 25 janvier 1985 as well as to occasional professionals, except as regards the obligation to contribute to the caisse de garantie des administrateurs judiciaires et des mandataires judiciaires à la liquidation des entreprises and to the Conseil national des administrateurs judiciaires et des mandataires judiciaires à la liquidation des entreprises.
They are brought together in this document.
They have been adopted by the Conseil national des administrateurs judiciaires et des mandataires judiciaires à la liquidation des entreprises (hereinafter referred to as the Conseil national) pursuant to Article 54-1-II of Decree no. 85-1389 of 27 December 1985 amended.
Failure to comply may result in disciplinary proceedings at the sole initiative of the public authority, which alone has disciplinary powers.
TITRE IER: DEFINITIONS
1. 1. Judicial administrators.
Judicial administrators are agents appointed by court order to administer the assets of others or to exercise assistance or supervisory functions in the management of such assets (art. 1er de la loi n° 85-99 du 25 janvier 1985).
Administrators in bankruptcy may also be entrusted with the mandates or missions referred to in Article 11 of Law n°85-99 of 25 January 1985.
Court administrators are entered on a national list divided into regional sections, corresponding to the jurisdiction of each court of appeal, and subdivided into two sub-sections, one for court administrators in commercial matters, the other for court administrators in civil matters.
The courts may, however, exceptionally and by reasoned decision, appoint as judicial administrators persons not registered on this list.
A judicial administrator may be registered on both sub-sections.
Commercial judicial administrators may receive mandates as trustees under Law no. 67-563 of 13 July 1967 on judicial settlement and liquidation of assets.
1. 2. Legal representatives for the liquidation of companies.
Legal representatives for the liquidation of companies are the representatives appointed by court order to represent creditors and, if necessary, to liquidate a company under the conditions defined by law no. 85-98 of 25 January 1985 relating to the judicial recovery and liquidation of companies (art. 19 de la loi n° 85-99 du 25 janvier 1985).
Mandataires judiciaires à la liquidation des entreprises may also be entrusted with the mandates or missions referred to in l’article 27 de la loi n° 85-99 du 25 janvier 1985.
Authorised receivers in the liquidation of companies may receive trustee mandates as part of the loi n° 67-563 du 13 juillet 1967 sur le règlement judiciaire et la liquidation des biens.
TITRE II: PRINCIPES DEONTOLOGIE
2. 1 Fundamental principles.
Independence, probity, honour, loyalty, dignity, conscience, humanity, disinterestedness, delicacy, moderation, courtesy, confraternity and tact are imperative duties for the judicial administrator and the judicial representative for the liquidation of companies.
Together they constitute the fundamental principles governing the exercise of their activity.
Even outside their professional practice, judicial administrators and judicial representatives for the liquidation of companies must refrain from any infringement of the laws and regulations and from any action contrary to the aforementioned fundamental principles or likely to undermine the dignity of their profession.
All judicial administrators and all judicial representatives for the liquidation of companies must, in accordance with the oath they have taken before the court of appeal, respect the ethics of their profession.
2. 2. Obligations imposed on professionals by virtue of their public service mission.
Administrators judiciaire and mandataires judiciaires à la liquidation des entreprises assume a public service mission in the context of a liberal activity.
The collective guarantee system for the professional liability of administrators judiciaires and mandataires judiciaires à la liquidation des entreprises creates special duties for them in this respect.
2. 2. 1. Incompatibilities.
2. 2. 1. 1. In accordance with the provisions of articles 11 and 29 de la loi n° 85-99 du 25 janvier 1985, l’administrateur judiciaire ou le mandataire judiciaire à la liquidation des entreprises ne peut exercer d’activité de nature à porter atteinte à son indépendance, à sa dignité et, à l’exception de l’enseignement, au caractère libéral de son exercice professionnelle.
2. 2. 1. 2. In order to ensure that their independence is not undermined and to avoid any conflict or community of interest, all judicial administrators and all judicial representatives for the liquidation of companies are asked to refrain from engaging in any commercial activity, directly or through an intermediary, and from holding a corporate office in a company with a commercial purpose, with the exception of a mandate as an amicable liquidator.
2. 2. 1. 3. Any court-appointed administrator or liquidator holding a corporate office in a civil or commercial company must notify the National Council in writing of any event likely to jeopardise the survival of the company and provide full details of the conditions under which he is carrying out his duties. If the National Council considers that these duties have become incompatible with the aforementioned fundamental principles, it will summon the person concerned to receive his explanations and rule on whether he should resign from the said duties. The professional may be assisted by any counsel of his or her choice.
If the National Council considers that there are grounds for resignation and if the interested party does not comply with this injunction within one month of being notified by registered letter with acknowledgement of receipt, the President of the National Council will notify the Government Commissioner to the registration or disciplinary committee that drew up the list on which the judicial administrator or the judicial representative concerned appears and may also inform the presidents of the courts that usually appoint him or her.
2. 2. 1. 4.The judicial administrator or the judicial representative for the liquidation of companies may be president of an association governed by the law of 1st July 1901.
2. 2. 1. 5.The judicial administrator or the mandataire judiciaire à la liquidation des entreprises invested with a public mandate, whether elective or not, must ensure that there is no confusion between the exercise of his profession and the performance of this mandate.
2. 2. 2. Independence.
2. 2. 2. 1.The court-appointed administrator or the judicial representative for the liquidation of companies must not under any circumstances be in a position likely to alter his freedom of assessment, which must remain full and complete, or in a position likely to be perceived as such.
The duties of a court-appointed administrator or the judicial representative for the liquidation of companies are in particular incompatible with any situation placing the person concerned in a state of dependence, of any kind whatsoever, with regard to any company for which a mandate is entrusted to him or her or to any adviser or partner of the said company.
The employees of the judicial administrator or the judicial representative for the liquidation of companies must meet the same conditions of independence.
The judicial administrator or the judicial representative for the liquidation of companies may not use his functions to seek an undue advantage on his own behalf or for the benefit of others, in particular with financial institutions, companies under mandate and more generally any natural or legal person with whom he may have professional contact.
The capacity of judicial administrator or judicial representative for the liquidation of companies is incompatible with the amicable acquisition of assets from a person, natural or legal, subject to collective proceedings.
2. 2. 2. 2. 2. When a court-appointed administrator or a judicial representative for the liquidation of companies receives a mandate from a court, he shall inform the president of the said court and the competent public prosecutor in writing within eight days of his appointment of the economic and financial interests that he holds directly or indirectly in the company concerned or in a competing company, and which may be an obstacle to the granting of this mandate. In the case of an amicable mandate, he shall inform his principal under the same conditions.
2. 2. 2. 3. Whenever a court-appointed administrator or a court-appointed agent for the liquidation of companies becomes aware, during the course of his mandate, of the existence of facts or links likely to undermine his independence or which may be perceived as such, he shall immediately notify the president of the court that appointed him and the competent public prosecutor, or his principal, in the case of an amicable mandate.
2. 2. 2. 4. Subject to the provisions of loi n° 90-1258 du 31 décembre 1990 and decrees n° 93-892 of 6 July 1993 and n° 93-1112 du 20 septembre 1993, any direct or indirect control of the professional practice of the judicial administrator or the judicial representative for the liquidation of companies by natural or legal persons not belonging to their profession is prohibited.
2. 3. Relations with third parties.
2. 3. 1. Professional secrecy.
Within the framework of the missions and mandates entrusted to them, and subject to the legal and regulatory provisions specific to the exercise of their activity, judicial administrators and judicial representatives for the liquidation of companies are bound by professional secrecy under the conditions provided by the articles 226-13 and 226-14 of the Penal Code.
This secrecy covers everything that has come to the knowledge of the judicial administrator or the judicial representative for the liquidation of companies in the exercise of their activity.
The judicial administrator or the mandataire judiciaire à la liquidation des entreprises must consequently:
– only agree to testify as to what they may know by virtue of the mandates and missions that are or have been entrusted to them in the cases expressly provided for by the law and the regulations as interpreted by case law;
– be assisted during any search of their professional domicile or an ancillary office by the President of the National Council or his representative who, in cooperation with the examining magistrate, ensures that professional secrecy is respected in accordance with the articles 56 and 96 of the code of criminal procedure.
Administrators and mandataires judiciaires à la liquidation des entreprises must ensure that all their collaborators are instructed in the obligation of professional secrecy, which is also theirs, and respect it.
2. 3. 2. On the image of the profession.
Each administrator and mandataire judiciaire à la liquidation des entreprises must, through their behaviour, strive to give the best image of their profession in all circumstances.
In this respect, judicial administrators and mandataires judiciaires à la liquidation des entreprises must be fully aware of the possible consequences of their professional conduct and acts performed in the exercise of their functions.
Any judicial administrator or mandataire judiciaire à la liquidation des entreprises must ensure a quality service.
2. 3. 3. Advertising.
2. 3. 3. 1. All forms of personal advertising, even indirect, are prohibited for the judicial administrator and the judicial representative for the liquidation of companies.
2. 3. 3. 2.The judicial administrator or the judicial representative for the liquidation of companies who is a member or former member of a professional body (National Council, board of directors of the guarantee fund, examination board, councils of professional organisations, etc.), or to whom these bodies have entrusted a function or mission, may not refer, in order to obtain a mandate or in the performance of a mandate, either to this capacity or to these functions or missions.
2. 3. 3. 3. 3. The National Council and, where applicable, the professional organisations may make or authorise any collective publicity that they deem useful.
2. 3. 4. Letterhead.
The letterhead of judicial administrators and judicial representatives for the liquidation of companies, like any document intended for third parties, in particular business cards and greeting cards, must comply with the principle of the prohibition of personal advertising.
It must indicate the surname, first name, title of judicial administrator or judicial representative for the liquidation of companies with the courts of the court of appeal of…, address, telephone and fax numbers and, where applicable, a telematic address.
Judicial administrators must specify the sub-section of the list on which they are registered (that of judicial administrators in civil matters or that of judicial administrators in commercial matters), although judicial administrators registered on both sub-sections may refrain from doing so.
The letterhead may also optionally state academic titles and functions, other regulated professions exercised pursuant to Articles 11 and 27 of Law no. 85-99 of 25 January 1985 or having been exercised, and duly authorised branch offices with their contact details.
In the event of practice within the framework of a legal entity, the letterhead must mention the form of the legal entity and its company name and may mention the surnames and forenames of all the partners, the surname and forename of the person signing the letter must always be indicated.
Any other mention not required by legal or regulatory provisions is prohibited.
2. 3. 5. Of the professional plate.
Administrators and mandataires judiciaires à la liquidation des entreprises may affix, inside the building where they practice, a plaque indicating their surname, first name and capacity as administrator or mandataire judiciaire à la liquidation des entreprises, where applicable that of former syndic administrateur judiciaire or former administrateur et séquestre près le tribunal judiciaire de Paris, as well as the location of their office or ancillary office in the building.
A plaque of sober appearance, limited size and without advertising impact may also be affixed to the outside of the building.
When the profession is practised within the framework of a legal entity, the plaque may include, in addition to the legal form and corporate name of the legal entity, the surnames and forenames of each of the associated professionals.
2. 3. 6. Public speeches.
The court-appointed administrator or mandataire judiciaire à la liquidation des entreprises expresses himself freely in the areas of his choice and using the means he deems appropriate.
He must, in all circumstances, show discretion and reserve, particularly when his status as court-appointed administrator or mandataire judiciaire à la liquidation des entreprises is known, and refrain from seeking publicity.
If the court-appointed administrator or mandataire judiciaire à la liquidation des entreprises makes statements concerning the mandates or missions entrusted to him or her or on general matters relating to his or her professional activity, he or she must do so in compliance with professional secrecy. He must also indicate in what capacity he is speaking and exercise particular vigilance.
2. 3. 7. Relations with financial institutions.
When dealing in a personal capacity with a financial institution with which they have a professional relationship in the context of the mandates entrusted to them, judicial administrators and judicial representatives for the liquidation of companies must:
– ensure that the terms offered are those generally practised by the said institution towards clients of an equivalent financial profile and, consequently, refrain from any individual and personal negotiation with a view to special advantages;
– refuse loans on terms lower than the refinancing rate of the institution concerned;
– exclude any commercial loyalty clause.
2. 3. 8. Relations with the parties to the proceedings.
The judicial administrators and the judicial representatives for the liquidation of companies owe the various parties to the proceedings every consideration as well as their professional conscience, fairness, probity and the fullest possible information.
Whether they are in contact with the debtor, employees, creditors, auditors or service providers external to the proceedings, judicial administrators and judicial representatives for the liquidation of companies shall ensure that their interlocutors are suitably welcomed and received.
Professionals are recommended to provide the debtor, at the latest at their first meeting, with a document enabling the debtor to understand the respective missions of the bodies involved in the proceedings.
Professionals shall observe the availability imposed by the circumstances with regard to the various parties, in particular employees.
They shall make the best use of modern communication techniques and take the human and technical means to respond quickly and in detail to requests for information and more generally to any correspondence addressed to them.
In handling their cases, they shall practice transparency with regard to their various interlocutors subject to the obligations of discretion or professional secrecy.
It is their responsibility to circulate information without delay, this speed of intervention being such as to best ensure the obligations placed upon them and to facilitate the performance of the tasks entrusted to them.
They ensure that the adversarial principle is respected as far as possible and that in any event they carry out their duties with respect for the dignity and rights of each person.
2. 3. 9. Relations with the courts and public authorities.
In his relations with the mandating courts, the professional shall endeavour to be personally present at hearings that are decisive for the fulfilment of his mandate.
He shall perform his duties with loyalty and transparency towards the mandating court.
More generally, the court-appointed administrator or the judicial representative for the liquidation of companies shall endeavour to show, in the performance of his duties, loyalty and courtesy towards the public authorities with which he is in contact.
2. 3. 10. Relations with members of other judicial professions.
Any judicial or extra-judicial act or letter in lieu thereof, drawn up by a judicial administrator or a judicial representative for the liquidation of companies or on his instructions and directed, in a personal capacity, against a judicial administrator, a judicial representative for the liquidation of companies as well as against any member of the judicial professions (lawyer, officier ministériel, auxiliaire de justice, expert judiciaire), or implicating them, and this regardless of the legal form under which the latter carry on their activity, must first be submitted for approval by the President of the National Council to enable him, where appropriate, to invite the parties to conciliation or to advise moderation of expression.
The endorsement of the President of the National Council and his possible invitation to conciliation constitute neither an authorisation, nor a decision, nor an approval, but a recommendation that the judicial administrator or the judicial representative for the liquidation of companies is entitled not to follow, subject to answering for any breach of the aforementioned fundamental principles.
2. 4. Relations with the profession.
2. 4. 1. Relations with professionals.
2. 4. 1. 1. Good relations between colleagues.
Judicial administrators and judicial representatives for the liquidation of companies must maintain relations of courtesy and confraternity. They owe each other mutual advice and moral assistance.
Administrateurs judiciaires and mandataires judiciaires à la liquidation des entreprises must refrain from any acts or words likely to harm the situation or good name of a fellow member.
If they are aware of an error or fault committed by a fellow member in the exercise of his profession, they must refrain from making their criticisms public and immediately refer the matter to their fellow member.
When several judicial administrators or judicial representatives for the liquidation of companies have been jointly appointed, they must ensure that they define a general work programme between themselves and coordinate their respective tasks. They shall keep each other informed of their respective diligence.
The judicial administrators and the judicial representatives for the liquidation of companies are bound by an obligation of moral solidarity in favour of any colleague who is incapacitated or disabled or the heirs of any colleague who dies while still exercising mandates or missions.
The judicial administrator(s) or judicial representative(s) for the liquidation of companies who succeed him in his assignments or mandates must:
– inform the President of the National Council without delay;
– take all necessary steps to obtain, for the benefit of the incapacitated or disabled member or the heirs of the deceased member, payment of any fees that may still be due.
2. 4. 1. 2. Disputes between colleagues.
Any judicial administrator or mandataire judiciaire à la liquidation des entreprises who has a dispute relating to the practice of the profession with another judicial administrator or mandataire judiciaire à la liquidation des entreprises must first try to find an amicable solution with him. If this fails, he must submit the dispute for conciliation to the President of the National Council.
Similarly, in the event of a dispute relating to the practice of the profession within a legal entity, any difficulty that cannot be resolved amicably must be submitted for conciliation to the President of the National Council by the most diligent partner concerned.
The conciliation procedure before the President of the National Council or his delegate is a compulsory prerequisite to any legal proceedings: it is conducted in accordance with the adversarial principle and may not, unless the parties agree, last for more than two months.
2. 4. 1. 3. Competition.
Administrators and mandataires judiciaires responsible for the liquidation of companies must allow free choice of courts and of any person who may use their services. They must refrain from any act tending to influence this choice as well as from taking advantage of external manoeuvres having the result of influencing this choice.
Free, healthy and fair competition, based on the quality of the service, is the guarantee of an efficient choice and a factor of emulation and progress.
Such competition excludes any form of canvassing.
It prohibits any search for mandates or assignments, in particular:
– by offering or granting, otherwise prohibited, discounts on fees, commission or other benefits;
– by referring to a political or associative mandate, an administrative assignment or a professional responsibility.
The professional cannot claim to have a client base. He may therefore not enter into any fee retrocession agreement that would have any purpose other than remuneration for a right of presentation.
2. 4. 2. Employees.
Administrateurs judiciaires and mandataires judiciaires à la liquidation des entreprises must ensure that their employees have morally and materially satisfactory working conditions in compliance with employment law.
They have a duty to encourage and supervise the further training of their employees.
They must also take great care in the choice of their employees and surround themselves only with personnel who give every guarantee from the point of view of morality, discretion and competence.
2. 4. 3. Relations with representative bodies.
2. 4. 3. 1. Protection of the title.
Any judicial administrator or judicial representative for the liquidation of companies who becomes aware of a case of illegal practice of the activity of judicial administrator or judicial representative for the liquidation of companies or a case of misuse of the title of judicial administrator or judicial representative for the liquidation of companies shall inform the President of the National Council.
The President of the National Council shall notify the public prosecutor(s) at the courts concerned and the magistrate coordinating inspections to enable them to take any useful measures.
2. 4. 3. 2. Contributions to the National Council and the guarantee fund.
The judicial administrators and the judicial representatives for the liquidation of companies are obliged to pay their contributions to the National Council and the guarantee fund without delay.
If the contribution is not paid within one month following formal notice by registered letter with acknowledgement of receipt, interest shall automatically accrue at the increased legal rate.
If the interested party has still not complied within one month following a reminder by registered letter with acknowledgement of receipt, the president of the National Council or of the guarantee fund, as the case may be, shall notify the Government commissioner to the registration and disciplinary commission that drew up the list on which the judicial administrator or the judicial representative for the liquidation of companies concerned appears and may also inform the presidents of the courts usually appointing them.
2. 4. 3. 3. Obligations of members elected to representative bodies.
Elected or appointed to professional bodies to assume a function or to carry out a mission, any judicial administrator or judicial representative for the liquidation of companies must devote the necessary time to these functions and missions, for the benefit of the profession.
2. 4. 3. 4. Various obligations towards the National Council and the guarantee fund.
If legal proceedings to which a court-appointed administrator or a court-appointed agent for the liquidation of companies is a party are, by their possible implications, of such a nature as to affect all or some of his fellow members in the conditions of their professional practice, he must inform the President of the National Council without delay.
Any court-appointed administrator or any court-appointed agent for the liquidation of companies whose professional liability is judicially called into question must immediately notify the guarantee fund and respond without delay to any request for information from it.
Any judicial administrator or any judicial representative for the liquidation of companies who is disciplinarily prosecuted, summoned before a criminal court or indicted, on any grounds whatsoever, is required to inform the President of the National Council without delay, providing all useful details.
TITRE III: TRAINING AND INTERNSHIPS
3. 1. Access to internships.
The regular training of interns by judicial administrators and judicial representatives for the liquidation of companies is a prerequisite for the continued fulfilment of their legal mission in the service of the economy and litigants. It is an imperative duty for the profession as a whole.
To facilitate the matching of trainee candidates with training supervisors, the National Council’s professional training commission keeps up to date and makes available to interested parties:
– a document containing all useful information on trainee candidates who have come forward to it;
– a list of training supervisors who have come forward to take charge of a trainee’s training.
As a bond of trust is necessary between the training supervisor and the trainee, each trainee candidate is free to choose his or her training supervisor and each training supervisor is free to choose his or her trainee.
3. 2. The training charter.
The training period consists of the performance of professional work supplemented by training activities organised in particular by the Conseil national. These actions include theoretical and practical teaching provided by qualified persons.
The training supervisor must be a natural person practising on an individual basis or within the framework of a legal entity.
Any training supervisor must:
– put the trainee in a position to acquire real practice in all areas of professional activity (including participation in hearings);
– provide the trainee with pedagogical training, particularly in study management and professional ethics;
– allow the trainee to participate in training sessions organised for him or her by the National Council, such participation being taken into account as part of his or her working time ;
– enter the trainee on the staff register and allocate remuneration to the trainee as an employee in compliance with the provisions of employment law;
– not simultaneously provide training for more than two trainees (unless an exemption is granted by the vocational training committee);
– inform the vocational training committee without delay of any change occurring in the trainee’s legal situation, in particular any interruption of the course and send it a copy of the end-of-course certificate.
Any trainee must:
– effectively participate in the professional activity of the training supervisor;
– attend the training sessions organised for trainees by the National Council;
– endeavour to participate in the colloquia and seminars organised by the National Council and the professional and trade union organisations with the approval of the Professional Training Commission;
– prepare for the professional examination;
– respect professional secrecy and observe a duty of reserve during and at the end of their traineeship.
At the end of each calendar year (and at the end of the traineeship if it does not coincide with the end of a calendar year), all trainees draw up, with the participation of their training supervisor, a report describing and illustrating the practical and theoretical training received during the past year. This report, signed by the trainee and stamped by the training supervisor, is sent to the National Council’s professional training committee by 31 March of the following year at the latest (or within three months of the end of the training period).
The above rules are set out in a training monitoring charter signed by the training supervisor and the trainee.
They apply even to the part of the traineeship that is not completed with a court-appointed administrator or a judicial representative for the liquidation of companies.
Compliance with them is a condition of access to the training sessions organised by the Conseil national for trainees.
The training supervision charter and the training agreement are sent by the training supervisor to the professional training commission prior to the commencement of the training period (and, during the training period, before any change of training supervisor).
The training agreement may not include clauses limiting the trainee’s subsequent opportunities to set up in business.
3. 3. Initial theoretical training.
In accordance with the mission assigned to it, the Conseil national organises the theoretical training of trainees.
It offers them, free of charge, a cycle of courses enabling them to acquire the knowledge they need to complete their practical training and enable them to sit the professional examination usefully.
3. 4. Ongoing training.
Each judicial administrator, each judicial representative for the liquidation of companies must, at all times, make the necessary research efforts to improve the quality of their services and maintain the high degree of professional competence required by the mandates and missions entrusted to them.
They have a duty to maintain and renew their knowledge and to keep abreast of developments in the law, the economy and society.
He devotes a certain amount of time each year to his ongoing training and also sees to that of his collaborators.
The National Council organises seminars or training sessions each year on themes and in forms proposed to it by its professional training commission.
Court-appointed administrators and court-appointed agents for the liquidation of companies freely establish their training programme, which must obligatorily include one or more seminars or training sessions organised by the National Council or validated by it after receiving the opinion of its professional training commission.
3. 5 Financing of training.
Training initiatives are decided by the National Council after receiving the opinion of the Professional Training Commission.
After receiving the opinion of the Professional Training Commission, the National Council will charge participants for all or part of the cost of the seminars and training sessions it organises, with the actual training of trainees being free of charge.
TITRE IV: TERMS OF PRACTICE OF THE PROFESSION
4. 1. Professional domicile.
The judicial administrator or the judicial representative for the liquidation of companies must have a study suitable for the proper execution of the mandates entrusted to him.
The judicial administrator or the mandataire judiciaire à la liquidation des entreprises may, in the exercise of his mandate, save in exceptional cases, only receive or speak with his interlocutors in a place that guarantees the dignity and independence of his functions.
4. 2. Ancillary offices.
The opening of an ancillary office by a judicial administrator or a mandataire judiciaire à la liquidation des entreprises is subject to the authorisation of the commissaire du Gouvernement près la commission d’inscription et de discipline having carried out his registration.
Any creation of an ancillary office requires:
– the assembly on site of material and human resources enabling the day-to-day management of the mandates and assignments received, which presupposes in particular the permanent presence on site of an associate with sufficient experience and competence;
– sufficient actual presence of the professional, to personally perform the acts essential to the proper execution of his mandates and ensure the control of the operation of the branch office;
– computer resources which must enable the centralisation at the professional domicile of the elements relating to the mandates and the corresponding accounting operations.
4. 3. the professional card.
The President of the National Council draws up a professional card for the judicial administrators and the judicial representatives for the liquidation of companies registered on the lists who request it.
This card includes the following information: surname, first name, date and place of birth, professional address, address of the branch offices, date of registration on the lists. It is completed by an identity photograph.
The card must be returned to the Government commissioner by the interested party who has been struck off or withdrawn from the list.
4. 4. Practice in the form of a company.
When a professional creates a company to exercise his functions, whatever the form, he must cease his individual activity and request the transfer of his mandates to the company.
4. 5. execution of mandates and assignments.
1. The administrator or the judicial representative for the liquidation of companies must not accept a number of mandates or assignments that is incompatible with the resources and organisation of his firm.
2. The judicial representative must implement rational and efficient management methods in order to allow quality work on the mandates entrusted to him.
3. The judicial administrator or the judicial representative for the liquidation of companies must ensure, within the framework of the mandates and assignments entrusted to him, that he carries out his duties within a reasonable period of time. They must make it a rule to request the closure of proceedings as quickly as possible.
4. The professional must, as soon as he is able and at any time during the proceedings, make at least partial distributions of funds, in particular to the benefit of creditors.
5. At all stages of the procedure, the professional must ensure that the supervisory authorities are kept informed of the progress of operations through consistent and detailed reports. He shall at all times ensure that court decisions are enforced.
4. 5. 1. Delegations of authority.
The professional shall personally retain full responsibility in the execution of the mandates and assignments entrusted to him.
He may, however, delegate some of the tasks incumbent upon him to collaborators. In this case, the professional retains control of his file. The delegation that he grants may only be partial and will be recorded in a written document kept at the firm and appended to the permanent control document.
4. 5. 2. Delegations and terms of signature.
4. 5. 2. 1. A judicial administrator or a judicial representative for the liquidation of companies may only delegate his signature to a colleague or an employee.
4. 5. 2. 2. Any delegation of signature to a colleague may be given without restriction.
4. 5. 2. 3. The delegation of signature to an employed collaborator takes place in accordance with the terms specified below:
The collaborator must be the exclusive employee of the judicial administrator or the judicial representative for the liquidation of companies or that of the legal entity within the framework of which the professional carries out his activity.
The collaborator must carry out his activity under the direct authority of the court-appointed administrator or the mandataire judiciaire à la liquidation des entreprises and have sufficient experience and competence.
4. 5. 2. 4. In banking matters, the delegation of signature is governed by the following rules.
For credit banking transactions, the signature may be delegated to any member of staff meeting the above conditions.
For debit banking transactions, the beneficiary of the delegation of signature must not, except in special situations, be the person who issues the payment order.
A distinction must also be made according to the accounts and types of assignment:
1. Accounts opened in the name of a third party:
a) Replacement assignment, debtor’s banking ban, continuation of business in compulsory liquidation:
The salaried employee who is the beneficiary of a delegation of signature must be involved in monitoring the business’s activity.
In addition, it is recommended that the signature of the professional or his delegate, which is the only mandatory one, be preceded by the visa of the head of the business or, failing that, a member of the business’s management.
b) Assistance assignment:
In the context of an assistance assignment, any means of payment must, except in the event of a banking ban, be subject to the double signature of the head of the business or his delegate and the judicial administrator or his delegate.
The signature of the head of the business or his delegate must normally precede that of the court-appointed administrator or his delegate.
c) Supervisory role:
The court-appointed administrator does not intervene in the operation of bank accounts, except in the event of a banking ban.
2. Accounts opened in the name of the professional:
a) Account known as the AGS account opened at the Caisse des dépôts et consignations:
This account exclusively receives funds from the AGS and is used to settle wage claims.
The salaried employee to whom the mandataire judiciaire à la liquidation des entreprises delegates his signature must have specific experience in settling wage claims.
b) General and distribution accounts opened at the Caisse des dépôts et consignations:
The general account receives all collection or payment transactions up to a maximum outstanding amount of 100,000 francs per case at the end of the month. Above this amount, the funds must be placed in a term account or deposited in the apportionment account.
The apportionment account receives all collection or payment transactions with no deposit limit, taking into account the remuneration paid. It offers an alternative to term account investment for large funds whose holding period cannot be estimated.
No delegation of signature is possible, except in special situations, in which case the delegation can only be given to a particularly experienced member of staff of the judicial administrator or the judicial representative for the liquidation of companies.
c) Term accounts opened at the Caisse des dépôts et consignations:
Term accounts, backed by the general account or the distribution account, allow funds to be remunerated for periods of more than one month.
As time accounts opened at Caisse des dépôts et consignations can only be moved from and to the benefit of so-called general or apportionment accounts, the signature may be delegated to any employee meeting the requirements specified under b.
d) Accounts opened in other financial institutions:
A court-appointed administrator or a judicial representative for the liquidation of companies may not, on a professional basis, open accounts in his or her name in a financial institution other than the Caisse des dépôts et consignations unless he or she is appointed under an amicable mandate and, solely in the case where he or she has obtained the agreement of his or her principal, this in accordance with the provisions of article 68 of decree no. 85-1389 of 27 December 1985 No delegation of signature may take place on these accounts unless there is a duly established compelling need.
4. 5. 3. External parties.
Les administrateurs judiciaires, mandataires judiciaires à la liquidation des entreprises peuvent recourir à des intervenants extérieurs pour accomplir au profit de l’entreprise des tâches techniques non compris dans les missions qui leur sont confiées en cas de nécessité dûment appréciée par l’autorité judiciaire compétente.
To do so, they must:
– seek the authorisation of the competent judicial authority (except where recourse to a third party is expressly provided for by law or regulation) by submitting a reasoned request with, as far as possible, an estimate of the cost of the intervention requested ;
– ensure that the intervening party has no direct or indirect family ties or dependencies with them, or with the various parties to the proceedings, and endeavour to carry out a prior competitive tender;
– submit the intervening party’s remuneration to the judicial authority prior to any financial commitment, as far as possible (except in the case of regulated professions for which there is a tariff). The use of a lawyer is not subject to prior judicial authorisation, except in the case where this intervention includes a fee for results; prior judicial authorisation is then imperative;
– ensure, under the authority of the official receiver, that the remuneration paid actually corresponds to the service provided.
It is recalled that sums paid by professionals to public and ministerial officers, experts or lawyers will only be reimbursed to them when their assistance has been recognised as necessary (art. 20 of Decree no. 85-1390 of 27 December 1985).
Finally, when court-appointed administrators and mandataires judiciaires call upon outside persons to perform tasks that fall within the scope of the mission entrusted to them by the court, they must not have the remuneration of these participants borne by the proceedings but pay them out of their own emoluments that they receive pursuant to the tariff decree of 27 December 1985 (art. 32 of Decree no. 85-1390 of 27 December 1985).
4. 6. Storage of documents and security of files.
4. 6. 1. Regardless of the often delicate context in which they carry out their mandates and missions, all judicial administrators or mandates for the liquidation of companies must ensure that they are carried out in the safest possible conditions.
When a court-appointed administrator or a judicial representative for the liquidation of companies is informed of a risk of harm to persons or property in the context of a mandate or assignment entrusted to him, he shall inform the public prosecutor so that he can take all appropriate measures.
4. 6. 2. Cheque books, cheque letters and any other means of payment must be kept in a room not open to the public or in a safe.
4. 6. 3. Where the accounts of an administrator or a judicial representative for the liquidation of companies are kept by computer, they must be backed up at least once a week, which must be done on a daily basis within one year of notification of these rules. It must be kept in a fireproof safe or outside the office of the judicial administrator or the judicial representative for the liquidation of companies.
If, by exception, the accounts are kept manually, the accounting records must also be kept in a fireproof safe.
4. 6. 4. For each mandate or assignment, court-appointed administrators and court-appointed agents for the liquidation of companies must ensure the preservation of the documents they are required to hold and cover this risk, where applicable, by setting up an insurance policy.
For the essential documents in the file (procedural documents, supporting documents for financial movements on the accounts opened in the professional’s name), the period is ten years from the date of the rendering of accounts. If an archiving company is used, the cost of this service will be borne by the professional.
The less essential documents in the file will be kept under the same conditions for five years following the date of presentation of the accounts. Any archiving costs must again be borne by the professional.
Archives entrusted to the professional by the company under mandate must be kept under the conditions of duration provided for by the laws and regulations. If the court-appointed administrator or the judicial representative for the liquidation of companies uses an archiving company, this service must give rise to judicial authorisation, which will be sought on the basis of a prior estimate. The corresponding cost may then be covered by the proceedings. If the professional carries out the archiving himself, he will ensure that it is carried out under satisfactory security conditions.
4. 7. Provisional administration.
4. 7. 1. When a judicial administrator or a judicial representative for the liquidation of companies is permanently unable to carry out his duties, he will inform the President of the Conseil national, or have him informed, without delay.
4. 7. 2. As soon as he is aware that, for whatever reason, a court-appointed administrator or a court-appointed agent for the liquidation of companies is permanently unable to carry out his duties, the President of the Conseil national shall notify the President of the judicial court within whose jurisdiction the court-appointed administrator or the court-appointed agent for the liquidation of companies has his professional domicile and the public prosecutor at this court with a view to appointing a provisional administrator. He shall provide them with the names of several professionals likely to carry out this task. The mission of the provisional administrator and its duration are defined by the court decision appointing it.
4. 7. 3. The professional appointed as provisional administrator may not, under any circumstances, at the end of his mission, continue with mandates or missions for which the judicial administrator or the judicial representative for the liquidation of companies who is unable to act was initially appointed. However, this prohibition is lifted as soon as the impediment that justified the appointment of the provisional administrator becomes definitive.
4. 8. Accounting.
4. 8. 1. Directory.
The general centralising directory of mandates and assignments provided for in Article 59 of Decree no. 85-1389 of 27 December 1985 is maintained manually or by computer.
These maintenance methods must:
– guarantee compliance with the obligations regarding the chronology and updating of the information that must appear in it;
– provide the necessary security with regard to the reliability of this directory.
Practical procedures for keeping the register are set out in Appendix I.
4. 8. 2. Accounting obligations.
Any judicial administrator or judicial representative for the liquidation of companies must keep the following separate accounts:
– general accounts relating to the operation of his office;
– so-called special accounts, more precisely defined below, specific to the mandates or assignments entrusted to him and relating to transactions affecting the cash accounts opened in his name, under the said mandates or assignments.
The special accounts of court-appointed administrators and court-appointed agents for the liquidation of companies are entirely separate from the accounts of the natural or legal persons for whom they are entrusted with mandates or missions. The rules for keeping the latter accounts depend on the status of the natural or legal person concerned; in this respect, the obligations of the judicial administrator or the judicial representative for the liquidation of companies depend on the nature and scope of his mandate or assignment.
4. 8. 3. Special accounts.
The special accounts of judicial administrators and judicial representatives for the liquidation of companies record, for each mandate or assignment received, all movements affecting the accounts opened in the name of the professional at the Caisse des dépôts et consignations and, where applicable, by derogation for amicable mandates, in other financial institutions, as well as the transactions related to these movements.
It also records funds, bills, securities and other securities belonging to third parties and held by the professional and not yet recorded in the cash journals.
The special accounts of judicial administrators and judicial representatives for the liquidation of companies must be kept by computer, using duly approved processing software, within one year of notification of these rules.
The rules governing the special accounts of judicial administrators and judicial representatives for the liquidation of companies are specified in Annex I.
4. 8. 4. Of the approval of special accounting software.
Accounting may be kept by any appropriate technical process provided that the process and methods used confer by themselves a character of authenticity on the accounting entries and allow all useful reconciliations necessary for an audit.
The accounting software used must make it possible to generate at any time a trial balance ensuring the equality of the totals of the movements of the individual accounts of the mandates with the totals of the auxiliary journals.
The automated processing software for keeping the special accounts must be approved in accordance with the rules set out in Annex II.
TITRE V: OVERSIGHT OF ACTIVITY
5. 1. Various aspects of supervision and control.
Through their mandates and missions, judicial administrators and judicial mandates for the liquidation of companies are entrusted with the management of third-party assets.
This is a particular responsibility that justifies specific oversight of their activity.
Also, judicial administrators and judicial agents for the liquidation of companies are placed under the supervision of the courts that appoint them, more specifically the juge commissaire for each of their mandates relating to collective proceedings, and under that of the public prosecutor, for the exercise of all their professional activity.
They are also subject to inspections entrusted to the public authority, to the control of the National Council and to that of an auditor.
The existence of these supervisory, inspection and control measures must never lead the judicial administrator or the judicial representative for the liquidation of companies to forget that they must, above all, in compliance with legal and regulatory provisions and professional rules, carry out the mandates and missions entrusted to them with maximum efficiency in the service of the interests for which they are responsible.
In the event, necessarily exceptional but possible, that the manner in which a supervisory measure is carried out appears to him to be of such a nature as to seriously hinder the performance of the mandates or missions entrusted to him or to undermine his independence, the judicial administrator or the judicial representative for the liquidation of companies concerned has a duty to immediately inform the President of the National Council.
5.2 Periodic and occasional inspections.
5.2.1 The inspections legally entrusted to the Conseil national are intended to ensure that the services provided by the professional comply with legal and regulatory provisions. They are also intended to ensure the quality of the service provided and to enable the improvement of professional practices.
5. 2. 2 The court-appointed administrator or the judicial representative for the liquidation of companies appointed as controller may not abstain. In the same way, the audited professional may not challenge any of his auditors. This principle may be waived in the event of an obvious incompatibility, at the reasoned request of one or other of the parties, this request being submitted to the authority that requested the inspection.
5. 2. 3. Except in the case of occasional inspections carried out unannounced, the date of the inspection is set by mutual agreement between the inspectors and the inspected professional or, failing this, by the Chairman of the Conseil national.
5. 2. 4.the court-appointed administrator or the judicial representative for the liquidation of companies must exercise the care and firmness necessary for his mission to be effective without losing the courtesy due to a colleague. They must exercise all discretion compatible with the performance of their duties and ensure that the audit operations do not interfere with the performance of the audited professional’s mandates and missions. He is bound by professional secrecy.
The judicial administrator and the judicial representative for the liquidation of companies being audited must receive the auditors with the same courtesy and do everything possible to facilitate their task.
To carry out their mission, the auditors have access to all the information they require. In this respect, the audited professional must respect a complete duty of transparency.
The audited professional must in particular make available to the auditors the permanent file concerning the organisation and management of his firm and submit to the investigations carried out by the auditors within the framework of the legal and regulatory provisions and l’arrêté du 16 août 1999 régissant ces contrôles.
5. 2. 5. The auditors must inform the judicial administrator or the judicial representative for the liquidation of the audited companies of any anomalies found and make any recommendations they consider useful.
5. 2. 6. Within three months of the audit operations, the auditors shall send the audited professional a draft report to enable the audited professional to make any observations.
The final report, together with any observations made by the audited professional, shall then be signed by the three auditors, in compliance with the regulatory provisions.
The auditors shall immediately notify the mandating authorities, the Chairman of the Conseil national and the competent public prosecutor of any infringement of the obligation to represent funds found against the audited professional.
5. 3. Control of the statutory auditor chosen by the professional on the basis of article 58, paragraph 2, of decree no. 85-1389 of 27 December 1985 as amended.
5. (3) (1) It is the responsibility of each professional to ensure that they appoint, in accordance with the conditions set out in Article 58, paragraph 2, of Decree no. 85-1389 of 27 December a statutory auditor and an alternate auditor.
5. 3.2 The judicial administrator or the judicial representative for the liquidation of companies shall:
– keep all the documents and vouchers making up its special accounts available to the statutory auditor so that the latter is in a position to check that the said special accounts comply with the rules in force and to ensure that the funds are represented;
– facilitate the statutory auditor’s access to the accounts opened in the name of third parties and to the general accounts of the firm.
5. 3.3 In the event of a dispute between the professional and his statutory auditor, in particular regarding the cost of his services, the professional shall refer the matter to the Chairman of the National Council.
5. 3. 4. The professional must notify his statutory auditor of any decision to withdraw his name from the list for the purpose of drawing up the account verification certificate under the conditions provided for by Article 58-2 of Decree no. 85-1389 of 27 December 1985 as amended.
5. 4. Inspection.
Any professional asked by a regional inspecting magistrate or by the coordinating magistrate for inspections to assist in the inspection of a colleague may not abstain. In the event of a clear incompatibility, they must submit a reasoned request to the requesting authority, which will be asked to make a decision.
