Extract
[...] Why is a derogation necessary? It is a matter of avoiding the non-bank counterparty, the administrator or the liquidator in the context of a collective procedure, from questioning the conservation by the PSI of these cash remittances. There are frequently adjustment clauses, known as "adjustment clauses, These clauses allow for the modification of the level of collateral in accordance with the evolution of the financial instrument, whether favorable or unfavorable to the client. When predictions indicate that the client is likely to suffer losses at the conclusion of the instrument, he is required to adjust his collateral accordingly, by remitting cash at regular intervals to secure his position. [...]
[...] 211-36-1 of the Monetary and Financial Code. Professor Torck is the origin of this derogation. This provision is typically a precautionary measure. In fact, in financial instrument operations, a derogatory regime to collective procedures is provided for eligible operations, which are defined at article L.211-36 of the Monetary and Financial Code. These operations include, in particular, transactions on derivative products. In general, when a procedure is opened against a debtor, we observe a halt in individual lawsuits and a ban on paying off previous debts. [...]
[...] There is no notion of dominant influence; it is a majority capitalist control, de facto or directorial. It is therefore appropriate to verify that it is indeed a group. Once this verification is done, it seems logical that a group controlled by a parent company can perform actions such as cash flow by establishing a cash-pooling or a treasury centralization agreement, allowing thus the transfer of excess financial flows to sister companies. There are two aspects: a banking aspect, involving the circulation of flows, and a corporate aspect, linked to social interest. [...]
[...] Exceptions of Article L 511-7 of the Monetary and Financial Code Certain exceptions appear insignificant, so we will not deal with them. Others deserve to be mentioned. I. Payment Delays and Advances Article L511-7, 1° of the Monetary and Financial Code : « I. - The prohibitions defined atarticle L. 511-5does not prevent an enterprise, whatever its nature, from being able to : 1. In the exercise of his professional activity consent to its contractors delays or advances in payment. » On this point, jurisprudence has undergone an evolution. [...]
[...] This could raise social interest questions. A a simpler alternative to treasury centralization with a ad hoc company would be to create within the group a credit institution, allowing for a group bank. Many large groups, such as Carrefour, Peugeot, Total, Vivendi and Veolia, have their own bank. It is not a matter of conducting banking operations outside the group, but of obtaining a approval to carry out banking operations. This approval is granted after presenting a limited activity program, which makes things easier, as the group bank can open accounts for the various group companies. [...]
