Cass. com., 7 May 2025, No. 23-20.471

According to the Court of Cassation, a creditor of a company does not have the right to request the appointment of a provisional administrator for that company.

The facts

Two foreign companies, The Family Fellowship LLP and The Family Global Godfathers SPC, claimed to be creditors of the French company Thelema. They alleged that the latter was being used by its director, Mr [U], to conceal fraudulent activities. Citing risks of abnormal operations and misappropriation of assets, they requested the appointment of a provisional administrator.

The proceedings

The Caen Court of Appeal, in a judgment of 29 June 2023, revoked an order appointing a provisional administrator. It found that there was no manifestly unlawful disturbance or imminent damage justifying this measure. The two companies appealed to the Court of Cassation.

The legal issue

Can a creditor of a company request the appointment of a provisional administrator for that company?

The ruling

In its decision of 7 May 2025, the Commercial Chamber of the Court of Cassation answered in the negative.

A creditor of a company does not have standing to request the appointment of a provisional administrator for that company.

Noting that the plaintiffs based their action solely on their status as creditors, the Court declared their claim inadmissible.

In fact, it ruled that:

« A creditor of a company does not have standing to request the appointment of a provisional administrator for that company.

The judgment found that The Family Fellowship and The Family Global Godfathers were relying on their status as creditors of Thelema to support their application for the appointment of a provisional administrator for that company.

It follows that their action is not admissible.« 

This ruling reiterates that the administration of a company is a matter for its own governance, under the control of its shareholders and, in the event of misconduct, the courts to which they have recourse. In the absence of specific legislation, a creditor cannot interfere in the internal management of a company by requesting the appointment of a provisional administrator.

This decision therefore limits the powers of creditors, who must not interfere in the management of the company. Creditors have other means of protecting their interests such as paulian actions, provisional measures to protect certain assets or the personal liability of the manager. However, a creditor cannot have a provisional administrator appointed and mingle with the management of his debtor.

By Olivier Vibert, lawyer at the Paris Bar,

www.kbestan.fr