Firms in difficulty

The bank blocks your company’s accounts or refuses to grant you longer payment deadlines or any other payment facilities, etc.

It is advisable to consult a lawyer in order to set up an amicable or legal procedure adapted to the situation, depending on whether your company is in a situation of default or not.

In this way, the bank’s action towards you can be suspended and you can even negotiate payment terms to spread out your business loans or overdrafts.

In the context of the pandemic, cash shortfall can be resolved with a loan backed by the state. In case of refusal of a loan backed by the state, by requesting ad ‘hoc assistance from the departmental committee on examining problems of business financing (CODEFI).

It is also possible to use confidential measures such as a conciliation or an ad hoc mandate. A conciliator is then in charge of negotiating with your bank contacts and your main creditors.

If the cash flow difficulties have become insurmountable due to a lack of more favorable payment facilities, it is possible to use collective proceedings (safeguard, receivership, or liquidation if necessary).

In any cases, a prior diagnosis is necessary in order to consider the next steps to be taken.

Be careful, this subject is sensitive because when you reach the point where you can no longer pay your employees at the end of the month, few solutions will present themselves.  It will then be necessary to consider judicial recovery or judicial liquidation for urgent payment by the AGS (the Association for the management of the system of guarantee of the claims of the employees).

In order to avoid this, it is possible beforehand to manage the company’s cash flow by, for example, requesting payment deadlines not only from suppliers but also on social and fiscal charges from the CSSF (Commission of Tax Services Directors).

You are facing cash flow problems, or you wish to anticipate difficulties (this is even better). You have several options when it comes to the people you can reach out to.

The DGFIP (Treasury Department of the French state) with the CSSF (Commission of Tax Services Directors) can grant you extended payment deadlines for your social and tax debts.

A lawyer specializing in this area will also be able to advise you with the benefit of an outside perspective on your business and its difficulties. Your lawyer will also be able to quickly implement the necessary steps to recover your debts, which is sometimes the first and sometimes sufficient measure to put in place, and to refer the matter to the competent jurisdiction on a rush basis.

He/she will also assist you, if need be, in preparing and presenting your conciliation file, ad hoc mandate or safeguard mandate, receivership or judicial liquidation.

Swift action is needed.  This is called the “race for the prize.”  Often a company manager tries to hide the situation and put out a fire by paying the most offensive creditors.

A formal notice from your lawyer can be very effective.

There are measures that allow you to seize your debtor’s accounts and obtain a court decision within a few weeks.

If your debtor is placed under safeguard, receivership, or judicial liquidation, it will be necessary to declare your claim to the judicial representative or judicial liquidator.

You should make sure that the goods that remain in your debtor’s possession are claimed on the basis of a retention-of-title clause or in the presence of a deposit.

The PGE, State Guaranteed Loan is a way to circumvent personal guarantees.  A loan backed by the state can be interesting if you are facing economic difficulties, it can give your cash flow a second life.

Be careful, however, to prepare a forecast for the period during which it will have to be repaid.

If your bank refuses to grant your request, you can submit a file to the CODEFI (departmental committee on examining problems of business financing) for ad ‘hoc aid to support weakened companies’ cash flow issues resulting from the Covid pandemic.

On the other hand, if the difficulties you are experiencing are structural, a loan backed by the state will not be sufficient to remedy same.  Additional measures will then need to be taken in order to give a second life to your company, perhaps in the form of a conciliation, ad hoc mandate, safeguard, or legal redress. In short, you might have to consider restructuring your company.

First, we need to find out why. Once the cause has been identified, we need to determine whether the cause is structural or cyclical.

If it is cyclical, the company must seek resources mainly internally. If it is structural the company will have to be restructured (restructuring).

Choices will need to be made on the basis of a diagnosis and an inventory of solutions. Stopping payments, when supervised and advised to do so, will often be necessary as a first step.

This expression is hardly used anymore, it has been replaced by voluntary receivership or liquidation (“dépôt de bilan” in French). In reality, filing for bankruptcy means putting the company into receivership or judicial liquidation.

Receivership can be a solution to save your company if it is not too late and if the causes leading to the difficulties experienced can be corrected.

A professional specializing in this area should be consulted as soon as possible. The number one indicator is the immediate cash flow and the cash flow forecast.

First of all, make a clear and fair diagnosis and not be afraid or ashamed to go and talk to professionals specializing in this area (lawyers for example) who are subject to professional secrecy and trained to deal with such situations.

Then address the difficulties according to whether they are structural or cyclical. The indicator is the existing and foreseeable cash flow.

The key word is how to anticipate a cash shortfall, how to deal with it, where to find resources inside or outside my company.

It could be envisaged to spread out the debts amicably without a third party, or with the help of a third party within the framework of confidential measures such as an ad hoc mandate, conciliation, or finally use the protection of a safeguard procedure or a receivership ordered by a court having jurisdiction over the matter.

The role of a lawyer is complementary to that of an accountant. Your lawyer will focus his/her efforts on the cash flow problems and will be able to accompany and help the Company manager to take the necessary measures, including legal proceedings, which may be necessary.

A lawyer often has a fresh eye on the situation, which makes it easier to assess the situation.

In addition, tensions can grow in your relationship with your accountant when invoices remain overdue.  A lawyer can help restore a smooth relationship by organizing the payment of invoices owed to the accountant, who remains an essential supplier for the company’s turnaround (dashboards to be presented, certified situations, etc.)

It is important to first make a diagnosis of your company’s situation.

Is your company in a situation of default (cessation of payments)?

Once this diagnosis has been made, we help you choose the procedure or strategy to be implemented.

If you are not in a situation of default, we can conduct negotiations with your bank as part of an ad’hoc mandate or as part of a conciliation procedure.

If you are in a situation of default, we will choose together the most suitable procedure for you.

A collective procedure such as a procedure of receivership or a court-ordered liquidation must be urgently considered.

If you are not yet in a situation of default but that you fear to encounter this situation very soon, a receivership procedure can be considered.

Based on our experience, we can accompany you throughout the observation period and help you develop and monitor the implementation of a liability adjustment plan for your business.

At any time, you can contact us to share with us the new challenges you are now facing or, on the contrary, your possibilities of early repayment.

Checking in on a regular basis with your attorney to discuss the health of your business will allow you to be more reactive and adaptable to your company’s situation.