Référé-provision and reorganisation: the interim payment is lost

The opening of judicial reorganisation (redressement judiciaire) proceedings deprives the creditor of the interim payment it had obtained in summary proceedings (référé). The commercial chamber holds that a référé-provision (summary proceedings for an interim payment) is not a pending action interrupted by the insolvency proceedings: the court of appeal hearing the debtor's appeal must overturn the order and hold that there is no ground for summary relief, the claim for payment having become inadmissible under the prohibition on proceedings (interdiction des poursuites) in Article L. 622-21 of the French Commercial Code (Com., 17 December 2025, No. 23-16.430).

Key points

• The opening of judicial reorganisation proceedings renders the claim for an interim payment against the debtor company inadmissible, under the prohibition on proceedings laid down by Article L. 622-21 of the French Commercial Code.
• Where the debtor is placed in insolvency proceedings while the action is pending, the court of appeal hearing its appeal against the summary référé-provision order must overturn that order and hold that there is no ground for summary relief.
• Summary proceedings seeking an order that the debtor pay an interim payment are not pending proceedings interrupted by the insolvency proceedings within the meaning of Article L. 622-22 of the French Commercial Code.
• The official receiver (mandataire judiciaire) and the court-appointed administrator (administrateur judiciaire) therefore need not intervene in such summary proceedings.
• The ruling does not say that the claim is unfounded: it closes off the référé-provision route against a company subject to insolvency proceedings.

From the shareholder current account to judicial reorganisation

The commercial chamber quashes without remittal the decision which had upheld an order to make an interim payment, even though the debtor company had been placed in judicial reorganisation while the appeal was pending. A shareholder in a société d'exercice libéral par actions simplifiée (simplified joint-stock professional practice company) died on 26 November 2013, leaving a will appointing their spouse as universal legatee. The estate included the shares they held in that company. A summary order of 22 February 2021 ordered the company to pay the universal legatee an interim payment on account of the credit balance of the deceased's shareholder current account.

The company lodged an appeal on 13 July 2022. A judgment of 27 December 2022 then placed it in judicial reorganisation and appointed a court-appointed administrator and an official receiver. The court of appeal (CA Paris, 24 March 2023, No. 22/12403) nevertheless upheld the order in all its provisions. Before the Cour de cassation (France's highest civil court), the creditor first argued that the mémoire ampliatif (brief setting out the grounds of appeal), filed on behalf of the company alone, caused the appeal to lapse as against all parties.

The commercial chamber rejects that lapse: summary proceedings seeking payment of an interim payment are not pending proceedings within the meaning of Article L. 622-22 of the French Commercial Code, so that the administrator and the official receiver did not have to intervene in them. On the merits, the Court quashes the court of appeal's decision, citing Article L. 622-21 of the French Commercial Code, in the following terms (free translation).

It follows from that provision that summary proceedings seeking an order that the debtor pay an interim payment are not pending proceedings interrupted by the opening of the debtor company's insolvency proceedings, so that the court of appeal, ruling on the appeal brought by the latter against the order requiring it to make an interim payment, must overturn that order and hold that there is no ground for summary relief, the claim for payment having become inadmissible under the rule prohibiting proceedings laid down by the aforementioned provision.

The commercial chamber itself draws the consequences of its decision. It overturns the summary order of 22 February 2021, holds that there is no ground for summary relief and does not remit the case, since the quashing does not require the merits to be decided again.

Référé-provision and judicial reorganisation: what effects?

A creditor which has obtained an interim payment in summary proceedings loses the benefit of that order when the debtor is placed in judicial reorganisation while the appeal is pending. The référé-provision pursues a single objective: obtaining immediate payment. The prohibition on proceedings laid down by Article L. 622-21 of the French Commercial Code runs directly counter to that objective. The court of appeal can therefore neither uphold the order nor rule on the amount of the interim payment: it overturns the order and finds that there is no longer any ground for summary relief.

The claim itself is not held to be non-existent. The commercial chamber does not rule on its merits: it finds that the route of immediate payment is closed by the opening of the insolvency proceedings. The debate on the existence and amount of the debt now falls within the collective treatment of liabilities. In the case decided, the creditor bears the court costs, including those incurred before the court of appeal, and the applications based on Article 700 of the French Code of Civil Procedure are dismissed.

The fate of an appeal lodged before the proceedings were opened

The decision combines two provisions: référé-provision proceedings escape the interruption under Article L. 622-22 of the French Commercial Code, but they lose all purpose through the effect of Article L. 622-21. The distinction has immediate practical consequences. Absent any interruption, the action continues without the officers of the insolvency proceedings having to be joined. The debtor may therefore see the appeal through alone and obtain the overturning of the interim payment order.

The court of appeal had taken the opposite path: it had allowed the administrator and the official receiver to intervene voluntarily, then upheld the order in all its provisions. The commercial chamber rules without remittal, applying Article L. 411-3, paragraph 1, of the French Code of Judicial Organisation and Article 627 of the French Code of Civil Procedure, a solution suggested by the company in its mémoire ampliatif and by the advocate general in the opinion. The fate of the current account claim remains open, as the decision does not decide it.

What a creditor should check before starting summary proceedings

A creditor pursuing a weakened company must factor in the risk that insolvency proceedings will destroy, while the action is pending, the benefit of an interim payment already obtained. A summary interim payment order under appeal is not a definitive gain. As long as the appeal has not been decided, the opening of judicial reorganisation is enough to render the claim inadmissible. The time between the order and the appeal decision then becomes a risk factor in its own right.

• The creditor monitors the debtor's situation throughout the proceedings, including on appeal.
• A debtor placed in insolvency proceedings may rely on the prohibition on proceedings before the court of appeal to obtain the overturning of the interim payment order.
• For pending proceedings within the meaning of Article L. 622-22 of the French Commercial Code, that provision provides for interruption until the pursuing creditor files its claim, then automatic resumption, with the official receiver and, where applicable, the administrator or the commissaire à l'exécution du plan (officer supervising performance of the plan) duly summoned.

Checks before pursuing a référé-provision

Before maintaining a claim for an interim payment against a company in difficulty, three points deserve prior examination, in the light of the solution adopted on 17 December 2025.

• Check whether an opening judgment (jugement d'ouverture) has been handed down since the summary order: the prohibition on proceedings in Article L. 622-21 of the French Commercial Code then renders the claim for payment inadmissible.
• Distinguish référé-provision proceedings, which are not interrupted, from the pending proceedings covered by Article L. 622-22 of the French Commercial Code, whose resumption presupposes that the claim has been filed.
• Anticipate the cost of the appeal: a creditor whose claim becomes inadmissible may bear the court costs of both first instance and appeal.