Law No. 2023-1059 of November 20, 2023 established an experiment affecting commercial justice, for a period of 4 years from January 1, 2025, by creating:
- Economic Activity Tribunals (TAE), specialized jurisdictions responsible for handling collective procedures and certain cases related to business difficulties, in addition to disputes already known to commercial courts;
- a financial contribution intended to ensure the financing of this new economic justice,
The practical arrangements for this contribution (amount, payment terms, sanctions) were specified by Decree No. 2024-1225 of December 30, 2024, which came into force on January 1, 2025.
A 19-page circular was issued on February 6, 2025 to explain how it works.
Thus, twelve commercial courts (Marseille, Le Mans, Limoges, Lyon, Nancy, Avignon, Auxerre, Paris, Saint-Brieuc, Le Havre, Nanterre, Versailles) changed their name on January 1, 2025 to each become “Tribunal des Activités Economiques” (“TAE”) as part of this experiment.
The litigant and practitioners will find themselves, once again – after the District Courts and High Courts which have become Judicial Courts – confronted with frontispieces marked with the age-old sign “Tribunal de Commerce” when they are facing an “Tribunal des Activités Economiques”.
This new contribution, which particularly affects debt recovery and commercial disputes, raises many questions in practice.
It introduces an inexplicable disparity in treatment depending on the territory and can be abnormally penalizing for a company which, although subject to it, finds itself in difficulty at the time of the introduction of the proceedings.
The contribution – only before the courts listed above – is payable by the applicant (excluding the prosecutor, state and other communities) and is only due if the total amount of his claims exceeds 50,000 euros (claims relating to irrecoverable costs are not taken into account in calculating this amount) at the time of enrollment, unless he has fewer than 250 employees. In the event of multiple applicants, the value of the claims is assessed separately for each applicant.
This contribution applies both in summary proceedings and on the merits.
That's the principle.
However, the contribution is not payable in the following cases: incidental requests (including additional requests), appeals, requests for modification or approval of amicable agreements, referrals after cassation, requests for collective proceedings or amicable procedure for settling the difficulties of a company or agricultural holding.
This contribution is not a flat rate, that would be too simple:
- For the applicant who is a legal entity, the contribution depends on the turnover and the average annual profit made over the last three years.
If the turnover is less than 50 million euros, no contribution is due.
If the average annual turnover is greater than 50 million euros and less than or equal to 1,500 million euros over the last three years and, if the average annual profit over the last three years is greater than 3 million euros, the amount of the contribution is set at 3% of the value of the claims up to a limit of 50,000 euros.
If the average annual turnover over the last three years is greater than 1,500 million euros, the amount of the contribution is set at 5% of the value of the claims up to a limit of 100,000 euros.
- For the individual applicant, the rate varies between 1% and 3% depending on the reference tax income.
If the reference taxable income is greater than 250,000 euros and less than or equal to 500,000 euros, the amount of the contribution is set at 1% of the value of the claims up to a limit of 17,000 euros.
If the reference taxable income is greater than 500,000 euros and less than or equal to 1 million euros, the amount of the contribution is set at 2% of the value of the claims up to a limit of 33,000 euros.
Finally, if the reference taxable income is greater than 1 million euros, the amount of the contribution is set at 3% of the value of the claims up to a limit of 50,000 euros.
Beyond the difficulties of calculating the liability and contribution of French or foreign claimants, the question is what additional steps must be taken in the event that the dispute exceeds 50,000 euros.
The applicant must indeed – the text tells us – attach to the initiating act the documents justifying his situation.
Does this mean that every applicant must spontaneously provide a copy of the personnel register or a certificate – and in what form – that he employs fewer than 250 employees on the day the matter is brought before the Court?
And if this is not the case, he will have to produce his accounts for the last three years (in practice, we assume the last three financial years).
The circular also specifies that every applicant (including VSEs and SMEs not concerned) must produce the income statements for the last three financial years with tax returns.
It will then be up to the Registrar to determine whether the applicant is subject to the tax and to calculate the contribution which, in the event of non-payment, will result in the inadmissibility of the applications. All this will give rise to a new niche dispute on this contributory issue.
Of course, for the applicant likely to be subject to the tax, many questions may arise such as the division of claims (several summonses for different invoices), the assignment of intra-group receivables before summons, the additional claim after enrollment, the initially undetermined litigation, the clauses attributing jurisdictions to escape the TAE etc. The circular takes the lead on the question of a judgment of incompetence in favor of a TAE, which gives rise to payment of the contribution to the referring court except in exceptional cases such as legitimate suspicion or recusal (on the other hand, there is no reimbursement provided for the contribution if the TAE declares itself incompetent).
This contribution is indeed part of the costs, as the circular reminds us.
Let us wait and see the consequences of these new constraints in practice.
We can still question the interest of this complicated mechanism when any company that initiates litigation with a stake of more than 50,000 euros but that would achieve less than 50 million euros in turnover or that has fewer than 250 employees will not be concerned by the contribution. Similarly, a natural person requesting the procedure with fewer than 250 employees will not be concerned. In other words, the majority of litigation should escape the contribution but not the administrative and procedural complications. At least until the mechanism is generalized and the thresholds lowered.
Pascal GORRIAS
February 10, 2025