It is a subject particularly difficult to treat hotfix

Limit the number of bankruptcies in the coming months and thereby preserve employment, even act against creditors... The Government, the temptation was to amend the law to limit the social impact of the current economic crisis. This is not a chance if the keeper of the seals just reform the bankruptcy law, three years after the entry into force of the final legislation. It is a subject particularly difficult to treat "hotfix." And the new reform may pose more problems than it solves.

Ideally, the right of failures must save businesses that deserve to be, but also of those whose activity is no longer viable. In this regard, the title given to the Act, referred to as "the backup companies", was particularly misleading. The economic fabric must be able to renew itself, leaving death replaced old firms by new, more effective. It has been shown, both in the United States in France that technical progress is widely worn by the latter. Prevent economic destruction-creation process thus cause deleterious effects.

The bankruptcy law also has a decisive influence on risk taking and therefore on business creation, investment and innovation. Insufficient protection of bankers may deter them from projects, a priori profitable but risky. Should not discourage entrepreneurs. The previous law was attacked in these issues, better governing certain actions that can be conducted from the first (liability for wrongful support) and mates (actions in closing a liability).

But it was stopped on the way. By leaving the control of the company to its leader during the backup procedure and considering the bankers who supported project as non-priority creditors initially, French law still appears as one of the most unfavourable towards them. German and British rights focus instead on the repayment of creditors, emphasizing procedures where the company is under the control of a judicial administrator and leaving a margin of relatively low appreciation to judge.

Indeed, at the end of a judicial procedure, three-quarters of the Bank debts are recovered in the United Kingdom, almost two thirds in Germany; only slightly more than half in France. A difference that changes everything. A recent study shows that an increase of only 3 of the rate of recovery of claims in France would encourage banks to lend more, leading to an increase of 3.5 of the innovative activity!

The ideal would be to transfer more control of the company in bankruptcy to the principal creditor, a solution often inapplicable by reason of the multiplicity of the creditors and probably too far from the French habits where the leader, or even a benevolent administrator mandated by the public authorities, will be always preferred creditors.

A track detailed in a recent report of the Board of economic analysis (1) would be to strengthen the creditors with guarantees on the assets of the company (funds business, inventory, buildings, etc.). They now are indeed after many others: credits-donors, creditors who have made money in times of difficulty, the Urssaf and especially the tax authorities and the AGS, the management body to ensure the guarantee of wages.

The challenge is considerable as such a measure would allow companies to use their stocks, approximately EUR 300 billion today largely untapped, to ensure that financing operations. Should of course do not drop as employees, by compensating the losses of the AGS by an increase in employer contributions and/or support of the State.

The reform recently implementation takes exactly the opposite of all these recommendations. The Decree of February 12, for the most part, reinforces the prerogatives of the head of enterprise, while the balance already lean too far in his favour and the detriment of the creditors.

Unfortunately, it is not in a recession caused by a financial crisis that we will stop in France to demonise our bankers...