Filing a claim in collective insolvency proceedings: time limits and pitfalls to avoid

The failure of a customer, supplier or business partner puts the creditor up against a deadline it does not control: that of the collective insolvency proceedings (procédure collective) opened by the court. Once the opening judgment has been published, the countdown starts, and a creditor that is slow to file its claim risks seeing it excluded from any distribution. This guide describes, from the creditor's point of view, how to file a claim in safeguard, administration (redressement judiciaire) or compulsory liquidation (liquidation judiciaire) proceedings, how to calculate precisely the time limit for filing a claim in collective insolvency proceedings, and how to react in the event of an oversight by means of relief from the time bar (relevé de forclusion).

Why filing a claim is a precondition of any hope of payment

When a debtor is placed in collective insolvency proceedings, the principle of the stay of individual enforcement actions prevents the creditor from acting alone to recover its claim. The only route left is collective: the creditor must come forward to the creditors' representative (mandataire judiciaire) in order to be entered in the liabilities of the proceedings. This formality is called the filing of the claim (déclaration de créance), governed by Articles L622-24 et seq. of the French Commercial Code. The acts that the creditor remains entitled to carry out once the opening judgment has been made are listed in our article on the stay of individual enforcement actions.

Ordinance No. 2014-326 of 12 March 2014 fundamentally changed the consequences of a failure to file. Before that reform, a claim not filed within the time limits was simply extinguished. Since then, it is no longer extinguished but becomes unenforceable against the proceedings (inopposable): the negligent creditor takes part in neither distributions nor dividends for as long as the proceedings last and, in practice, recovers nothing. The distinction is technical, but the economic consequence remains harsh. A creditor that has not filed finds itself excluded from the safeguard or administration plan and ranks nowhere in distributions in a liquidation.

Take a concrete example. A construction SME has carried out works for a project owner placed in administration. If it does not file its unpaid invoice within the time limit, it will not be paid out of the available assets or included in the plan for settling the liabilities, even though its claim is perfectly certain and due. The quality of the claim is not enough: it is filing in the proper form and within the time limits that opens the right to payment.

Identifying the right time limit for filing a claim

The starting point of the time limit is the most frequent source of error, because it does not always run from the same date depending on the creditor's situation.

The ordinary two-month period

For ordinary creditors, the filing period is two months from publication of the opening judgment in the BODACC (Bulletin officiel des annonces civiles et commerciales, the French official gazette of civil and commercial announcements). It is this publication, and not personal notification or mere knowledge of the proceedings, that starts the period running for the majority of creditors.

In practical terms, a supplier who learns through rumour or the local press that its customer is in administration must not wait for an official letter. It must check the exact date of appearance in the BODACC, which can be consulted free of charge online, and count two calendar months from that date. The period is calculated from date to corresponding date: a publication on 15 March opens a period that expires on 15 May.

The case of creditors warned personally

Certain creditors benefit from particular protection. Under Article L622-24 of the French Commercial Code, creditors holding a registered security (mortgage, registered pledge, registered privilege) or bound to the debtor by a registered contract (registered finance lease, for example) must be warned personally by the creditors' representative that they must file their claim.

For these creditors, the two-month period does not run from publication in the BODACC, but from notification of that personal warning. A bank holding a registered mortgage thus has two months from the day it receives the representative's warning. The practical stakes are twofold: these creditors must not consider themselves out of time because the BODACC publication is old, but nor must they wait passively for a warning that may never arrive if their security has not been correctly identified.

Creditors resident outside mainland France

The French Commercial Code extends the period for creditors who do not reside in mainland France. The period is then four months from publication of the opening judgment. A supplier established in another Member State of the European Union or in an overseas territory therefore has additional time, which takes account of the practical difficulties of information and transmission.

What an admissible claim must contain

Filing within the time limits is not enough: the filing must also be complete. Article L622-25 of the French Commercial Code sets the required content.

The filing must state the amount of the claim due on the day of the opening judgment, indicating the sums falling due and the dates of their maturity. It must specify the nature of any privilege or security attaching to the claim. A claim filed as unsecured (chirographaire) when it benefited from a privilege loses the benefit of that ranking: the creditor will be paid after the privileged creditors, which in practice often amounts to not being paid at all.

The filing must be accompanied by the documents capable of proving the existence and amount of the claim. For a commercial claim, this means attaching the invoices, purchase orders, contracts and account statements. A terse filing, without supporting documents, exposes the creditor to a challenge by the creditors' representative.

Several concrete precautions are called for:

• declare the principal amount but also the contractual or statutory interest accrued up to the judgment, as well as interest falling due where the claim arises from a loan with a term of more than one year
• distinguish clearly between sums already due and sums falling due
• specify the ranking claimed and attach proof of the security (copy of the mortgage registration, pledge deed)
• keep proof of dispatch, a registered letter with acknowledgement of receipt remaining the safest practice for dating the filing

Who has the power to file

The filing may be made by the creditor itself, by its lawyer, or by an employee or agent holding the power to file. This point is a source of litigation: the case law requires that the person filing on behalf of a company holds a valid delegation of authority. An employee in the accounts department who files without a valid delegation exposes the filing to inadmissibility.

Prudence dictates, for a business, formalising in advance a written delegation in favour of the person responsible for filing claims, or entrusting the task to a lawyer whose power of representation carries the power to file. This unremarkable formality prevents a perfectly well-founded filing from being rejected for a defect of representation.

Prior claims and subsequent claims: do not mistake the regime

A frequent confusion concerns the distinction between claims arising before and after the opening judgment. Only claims arising before the opening judgment are subject to the obligation to file in the liabilities under the conditions described above.

Claims arising regularly after the opening judgment, for the needs of the conduct of the proceedings or of the observation period (période d'observation), or in consideration for a service provided to the debtor during that period, fall under Article L622-17 of the French Commercial Code. These subsequent claims known as “meritorious” claims benefit from preferential treatment: they must be paid when due and, failing that, are paid by privilege ahead of most prior claims. They do not have to be filed in the liabilities under the procedure for prior claims, but must be brought to the attention of the creditors' representative or the liquidator within a period set by the texts in order to benefit from this privilege.

The illustration is telling: a supplier that delivers goods to the debtor before the opening judgment holds a prior claim to be filed; if it continues to deliver during the observation period, at the request of the administrator and for the needs of continuing the business, the later deliveries fall under a separate and more favourable regime. Mixing up the two regimes leads either to needlessly filing a subsequent claim or, more seriously, to letting the time limit for a prior claim lapse in the mistaken belief that it will be paid automatically.

Relief from the time bar: a second chance with limits

A creditor that has let the time limit pass is not necessarily condemned to lose everything. Article L622-26 of the French Commercial Code opens the route of relief from the time bar, a mechanism allowing the supervisory judge (juge-commissaire) to restore the creditor's right to take part in distributions, subject to strict conditions.

The conditions for relief from the time bar

The time-barred creditor must establish one of the two grounds provided for by the text.

First ground: its default is not attributable to it. The creditor must show that the delay results from a cause external to it, for example late or impossible information about the opening of the proceedings. Mere negligence, oversight or internal disorganisation is not enough. The courts assess this condition strictly: a professional creditor, which has the means to monitor the situation of its debtors, cannot easily plead absence of fault. The tools for that monitoring are presented in our article on the creditor's monitoring of its debtors' financial health.

Second ground: the default is due to an omission by the debtor when drawing up the list of its creditors. The debtor is in fact under an obligation to give the creditors' representative the list of its creditors with the amount of their claims. Where a claim appears on that list, Article L622-24 provides a favourable presumption: the debtor is deemed to have acted on the creditor's behalf for as long as the creditor has not itself filed its claim. Conversely, where the debtor has failed to mention a creditor that it should have listed, that creditor may apply for relief from the time bar on that basis.

This presumption, which stems from the 2014 reform, deserves a warning. The fact that the debtor has brought a claim to the attention of the creditors' representative does not definitively relieve the creditor of the need to file. The presumption applies “for as long as” the creditor has not filed, but a well-advised creditor has every interest in filing itself so as to control the amount, the ranking and the supporting documents, rather than relying on the accuracy of a list drawn up by a defaulting debtor.

The six-month period to act

The action for relief from the time bar is itself subject to a time limit. It must be brought within six months from publication of the opening judgment. This period is extended to one year in certain specific situations, in particular where the creditor could not have known of the obligation to file undertaken by the debtor, or for certain claims revealed late.

The practical message is clear: the time bar is not a door closed for good, but the window for catching up is narrow and closes quickly. A creditor that discovers its oversight must act without delay, because it must both apply to the supervisory judge by reasoned application and file its claim within the period set by the decision granting relief.

Imagine a craftsman who learns, eight months after the opening judgment, that one of its business customers has been placed in compulsory liquidation, having never received any information about the proceedings. The two-month period expired long ago. If it acts quickly and shows that it could know neither of the proceedings nor of the existence of an obligation to file, it may apply for relief from the time bar. But if it lets several more months pass, it loses even that possibility.

After filing: verification of the liabilities and the trap of silence

Filing a claim is not the end of the process. The phase of verification of the liabilities then opens, during which the creditors' representative examines each filing and proposes to the supervisory judge to admit it, reject it or record a dispute.

Where the representative intends to dispute all or part of a claim, it sends the creditor a letter informing it of the nature and the ground of the dispute. Article L622-27 of the French Commercial Code then gives the creditor a response period of thirty days. This period contains a formidable trap: failure to respond within thirty days bars the creditor from later disputing the representative's proposal. Silence amounts to acceptance of the representative's position, even where it is a total rejection.

An example illustrates the danger. A service provider has filed a claim for several unpaid instalments. The representative, lacking sufficient supporting documents for one of the services, proposes a partial rejection and writes to the creditor. If the creditor files the letter away without replying within thirty days, it loses the ability to contest the rejection before the supervisory judge, even though it held the supporting documents. Vigilance over the representative's letter is therefore as decisive as the initial filing.

The supervisory judge then rules by order, under Article L624-2 of the French Commercial Code, admitting the claim, rejecting it or declaring that it lacks jurisdiction where the dispute does not fall within its jurisdictional power. The order of admission fixes the amount and ranking of the claim, which determine the creditor's place in distributions. On verification of the statement of claims lodged with the court registry (greffe) and the means of challenging an admission, see our analysis of lodging the statement of claims.

Conclusion

Filing a claim is not one administrative formality among others: it is the act that decides whether a creditor will be paid or not. Since the 2014 reform, failure to file no longer extinguishes the claim but makes it unenforceable against the proceedings, which, economically, comes to the same result as the former extinction. The well-advised creditor does not bank on the presumption arising from the debtor's list or on a hypothetical relief from the time bar: it files itself, within the time limit, with an exact amount, a correctly claimed ranking and complete supporting documents.

The position is plain: a prudent and documented filing as soon as the BODACC publication appears is better than a later battle to obtain relief from a time bar whose conditions are strictly assessed by the judges. Relief from the time bar exists, but it is a lifebuoy, not a management method.

Above all, as soon as a debtor shows signs of default, put in place regular monitoring of BODACC publications for your main customers, formalise a written delegation in favour of the person responsible for your filings, and have a lawyer check the amount, ranking and supporting documents of any significant claim before it is sent. Checking in advance costs infinitely less than a claim lost for failure to respect a two-month period.

Frequently asked questions

What is the time limit for filing a claim in collective insolvency proceedings? The ordinary period is two months from publication of the opening judgment in the BODACC, under Article L622-24 of the French Commercial Code. It is extended to four months for creditors who do not reside in mainland France. For creditors holding a registered security or a registered contract, who must be warned personally, the period runs from notification of that warning.

What happens if I do not file my claim within the time limits? Since Ordinance No. 2014-326 of 12 March 2014, a claim that has not been filed is no longer extinguished but becomes unenforceable against the proceedings. In concrete terms, the creditor is excluded from distributions and dividends, and so cannot be paid out of the assets of the proceedings or included in the plan. The claim continues to exist in law, but its effective recovery becomes almost impossible while the proceedings last.

How do I apply for relief from the time bar? The time-barred creditor applies to the supervisory judge by application, under Article L622-26 of the French Commercial Code. It must establish either that its default is not attributable to it, or that it results from an omission by the debtor when drawing up the list of its creditors. The action must be brought within six months from publication of the opening judgment, a period extended to one year in certain particular situations.

Can the debtor file my claim in my place? The debtor must give the creditors' representative the list of its creditors. Where a claim appears on it, Article L622-24 provides a presumption that the debtor is deemed to have acted on the creditor's behalf for as long as the creditor has not filed itself. This presumption does not remove the need for vigilance: it remains preferable to file oneself, so as to control the amount, the ranking and the supporting documents, rather than depend on the accuracy of the debtor's list.

Must claims arising after the opening judgment be filed? No, they fall under a separate regime. Claims arising regularly after the opening judgment for the needs of the proceedings or in consideration for a service provided during the observation period benefit from Article L622-17 of the French Commercial Code and from a payment privilege. They must be brought to the attention of the creditors' representative or the liquidator within the periods provided, but do not follow the procedure for filing prior claims.

What should I do if the representative disputes my claim? The representative sends the creditor a letter stating the ground of the dispute. Under Article L622-27 of the French Commercial Code, the creditor has thirty days to respond. Failing a response within that period, it can no longer later contest the representative's proposal before the supervisory judge, even where it is a total rejection. Responding within thirty days, with supporting documents, is therefore imperative.

Is there any point in filing an unsecured claim? Yes. Even without security, an unsecured creditor must file in order to appear in the liabilities and hope for a distribution, even a partial one, or for inclusion in the settlement plan. Not filing on the ground that the chances of payment look slim amounts to renouncing in advance any payment and any inclusion in the plan, whereas the outcome of the proceedings remains uncertain at the time of filing.