Restructuring & insolvency lawyer — Road freight transport sector

Sector scope

Road hauliers, parcel and express operators, refrigerated and tanker transport, dangerous goods carriers, hire of industrial vehicles with driver, freight forwarders and charterers.

Sector context

Road freight is marked by thin margins, direct exposure to diesel prices, a fleet financed by leasing or long-term hire, and frequent dependence on a handful of customers. Market access requires registration in the transport operators register and continuous compliance with good repute, professional competence and financial standing conditions supervised by the regional authority, adding a regulatory constraint: losing the Community licence stops operations regardless of any insolvency procedure.

Key legal issues

• Access to and retention of the licence: entry in the national electronic register of transport undertakings, Community licence, and the good repute, professional competence and financial standing conditions (Regulation (EC) No 1071/2009), compliance with which conditions continued trading.
• Fleet and financing: leasing, long-term hire and pledges over vehicles; the return of unpaid vehicles directly reduces operating capacity and the value of any sale plan.
• Fuel clause and price revision: mandatory pass-through of diesel price variations into the transport price (Art. L. 3222-1 Transport Code) — a lever in renegotiations with customers.
• Carrier's direct action: the carrier has a direct claim for payment against the consignor and consignee, who guarantee payment of the price (Art. L. 132-8 Commercial Code), including where the forwarder defaults.
• Subcontracting and economic dependence: framework agreements, standard contracts applying by default, and liability for abrupt termination of established commercial relations (Art. L. 442-1, II Commercial Code).
• Drivers: road transport collective bargaining agreement, driving and rest times, equivalence hours, employee claims and the AGS wage guarantee.
• Public debt and tolls: social contributions, VAT, vehicle taxes, toll charges and Treasury liens; public debt may be referred to the CCSF for an instalment plan.

How a matter is handled

1. Diagnosis: review of available cash, due and payable liabilities, tax and social security instalments and existing security, in order to establish whether cessation of payments is characterised (Art. L. 631-1 Commercial Code).
2. Choice of procedure: arbitration between confidential out-of-court tools (ad hoc mandate, conciliation) and formal proceedings, in light of the sector's own timetable.
3. Negotiation: discussions with banks, strategic suppliers, the AGS wage guarantee scheme, the tax authorities and URSSAF, and where relevant before the CCSF.
4. Implementation: preparation of the filing, representation before the commercial courts, monitoring of the observation period, and preparation of the plan or of the sale.

French procedures at a glance

A declaration of cessation of payments must be filed within 45 days of that state arising, unless a conciliation request is filed within the same period (Art. L. 631-4 of the French Commercial Code).

Frequently asked questions

Does opening insolvency proceedings cause loss of the transport licence?

Not in itself. The undertaking must nevertheless continue to meet the conditions of access to the profession, in particular financial standing, which the competent authority assesses in light of the company's situation; the procedure must therefore be monitored with the administration.

Can an unpaid carrier claim against the consignee?

Yes. Consignor and consignee guarantee payment of the carriage price owed to the carrier, who has a direct action to that effect (Art. L. 132-8 Commercial Code). That action retains its value where the intermediary customer is itself insolvent.

Can leased vehicles be kept during the observation period?

A lease may continue if rentals falling due after the opening judgment are paid on time (Art. L. 622-13 Commercial Code). Failing that, the contract may be terminated and the vehicles returned, reducing operating capacity.

Can diesel increases be passed on to customers?

The transport price is revised as of right to reflect the variation in fuel costs between the contract date and the date of the operation, based on published indices (Art. L. 3222-1 Transport Code). That revision is a structuring point of discussion with customers.

What happens to a framework agreement in proceedings?

It is an ongoing contract: termination cannot be based on the opening of proceedings alone and the administrator may require performance (Art. L. 622-13 Commercial Code). Termination outside that framework may also amount to abrupt termination of established commercial relations.

Can fleet debt be restructured confidentially?

Yes, through an ad hoc mandate or conciliation — confidential procedures allowing negotiations with lessors, banks and public creditors before cessation of payments or within 45 days of it arising (Arts. L. 611-3, L. 611-4 and L. 631-4 Commercial Code).

Contact

Phone: +33 1 45 03 20 20
Email: accueil@macmahon-avocats.fr
Address: 33 avenue Mac-Mahon, 75017 Paris, France

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