Disposal plan and third-party opposition: the door closed to the dispossessed shareholder

By Pierre-Louis Roquet, Attorney at the Lyon Bar | 29 juillet 2026 | Reading time : 9 min
Modern vector illustration: navy blue closed door, courthouse column, and fragmented share certificates

Cass. com., July 1, 2026: A shareholder dispossessed by a disposal plan has no appeal, even by invoking the European Convention on Human Rights.

Analysis of a judgment Cass. com., July 1, 2026, n° 25-13.860, by Pierre-Louis Roquet, a business law attorney focused on business law in Lyon.

A founder had built a meteorological technology start-up. A professional private equity fund had acquired a stake in its capital. The company was placed in compulsory liquidation (liquidation judiciaire), and then the court approved a disposal plan (plan de cession) in favor of an acquirer. The assets were transferred. The founder's shares became worthless. He had not been a party to the judgment that sealed this fate, and so he filed a third-party opposition (tierce opposition). The court dismissed it. The Paris Court of Appeal, on February 11, 2025, confirmed this. The Cour de cassation (French Supreme Court for civil and criminal matters) remained.

It did not hear him. Not because he was wrong, but because the avenue did not exist. On July 1, 2026, the Commercial Chamber declared the appeal inadmissible (irrecevable), in a judgment published in the Bulletin.

The judge who exceeds their authority, not the judge who makes a mistake

The reasoning relies on two texts. Article 592 of the Code of Civil Procedure subjects a judgment rendered on third-party opposition to the same remedies as decisions from the court from which it emanates. Article L. 661-7, paragraph 2, of the Commercial Code reserves the pourvoi en cassation (appeal on points of law) solely to the public prosecutor (ministère public) against judgments ruling on an appeal of a judgment that approves or rejects a disposal plan. The combination is mechanical. The judgment on third-party opposition adopts the restrictive regime of the judgment it challenges. The shareholder therefore has no open appeal. The public prosecutor, however, does.

The law on companies in difficulty is structured in this way. The legislator has multiplied closed remedies, deferred remedies, and remedies reserved for a limited number of specifically enumerated parties. The objective is well-known: saving a company cannot tolerate the procedural uncertainty of several years. A disposal that could be challenged before the Cour de cassation in 2026, when the plan was approved in 2023, would not find any serious acquirer.

However, a safety valve exists. Case law has long held that any rule prohibiting or deferring a remedy can be derogated from in cases of abuse of power (excès de pouvoir). This is the pourvoi-nullité (appeal on points of law for nullification), a judge-made construct that also applies to appel-nullité (appeal for nullification). The judgment of July 1, 2026, expressly reiterates this.

Yet, it is necessary to agree on the terms. Abuse of power, in this context, is not a judge who judges poorly. It is a judge who exceeds their authority (sort de son office). One who rules on what no court can rule on, who rules without having been seized, who refuses to exercise a power that the law requires them to exercise, who disregards the very extent of their jurisdictional competence. The Court distinguishes between the abuse committed by the court that rules and the abuse validated by the appellate court. In both cases, the defect affects the power, not the content of the decision. An error of law, even a gross one, is not an abuse of power. Nor is an inadequate reasoning.

The applicant had invoked four grievances: violation of the adversarial principle (principe de la contradiction), lack of reasoning, insufficient reasoning, and infringement of their rights guaranteed by the European Convention. None of them crossed the threshold.

A fundamental right does not reopen a closed remedy

This is the real contribution of the judgment. The shareholder had invoked Article 1 of Protocol No. 1, which protects the right to property, and Article 6 § 1, which guarantees a fair trial. The argument was natural. A disposal plan empties the participation of its substance. This can be seen as a deprivation of property. It can be argued that closing the appeal deprives the shareholder of effective access to a judge.

The Commercial Chamber responds that these infringements, assuming they are established, do not constitute an abuse of power. The wording deserves careful reading. The Court does not say that the grievance is unfounded. It says that it does not open the door. The classification of abuse of power is indifferent to the gravity of the alleged violation.

The solution is consistent with established jurisprudence. The Commercial Chamber had already ruled, on June 19, 2012, that disregard of Articles 6 § 1 and 13 of the Convention did not constitute an abuse of power, following a judgment of July 12, 2011. The 2026 judgment explicitly extends this exclusion to the conventional right to property. The list of fundamental rights powerless to reopen a closed remedy therefore grows by one notch.

The logic is understandable. If the invocation of a right guaranteed by the Convention were sufficient to characterize an abuse of power, the exception would swallow the rule. Any litigant dismissed by a collective insolvency procedure text would draft a conventional argument and regain their appeal. The closure intended by the legislator would become a dead letter. It must be added that the Convention guarantees access to a court, not access to a supreme court. States remain free to organize, or even suppress, extraordinary remedies.

Everything is decided before the court of first instance and the court of appeal

The practical consequence is brutal, and it is the only one that matters for a director or shareholder threatened by a disposal plan. There is no safety net. Cassation (annulment by the Supreme Court) does not exist as a third chance.

This dictates a method. The shareholder who fears being dispossessed must make themselves known before the plan is approved, by making themselves heard by the court seized of the procedure, by documenting the value of their participation, by challenging the takeover bid on economic as well as legal grounds. Once the plan is approved, the third-party opposition must be constructed as a complete and definitive trial. All evidence, all arguments, all expertise must be included. The appeal before the court is the last place where the merits will be examined. What has not been said at this stage will never be.

There remains a narrow door. The pourvoi (appeal on points of law) belongs to the public prosecutor (ministère public). Convincing the prosecutor to exercise it requires a distinct approach, well-argued, and addressed in a timely manner. Practitioners in Lyon know this: disposal plans approved by the Lyon Commercial Court are subject to the same regime, and appeals brought before the Lyon Court of Appeal encounter the same closure. Geography changes nothing.

What does the judgment leave open? A lot, in reality. The Court does not rule that a disposal plan can never infringe on property rights. It says nothing about the admissibility of a question prioritaire de constitutionnalité (priority preliminary ruling on constitutionality) directed against Article L. 661-7, nor about the fate of an application before the European Court of Human Rights after exhausting domestic remedies. Nor does it close the possibility of an authentic abuse of power, that of a judge who would rule on a third-party opposition without having the power to do so, or who would order a transfer of shares without legal basis. The boundary remains, but it lies with the judge's power, never with the quality of the judgment.

Frequently Asked Questions

Can I challenge the disposal plan that dispossesses me of my company?

Yes, but within a narrow framework and short deadlines. A shareholder who was not a party to the judgment approving the plan can file a tierce opposition before the court that rendered it. The judgment rendered on this third-party opposition is subject to appeal. However, the Court of Appeal's judgment cannot be appealed on points of law (pourvoi) by the shareholder. Therefore, everything must be played out at the first two levels of jurisdiction.

What exactly is an abuse of power (excès de pouvoir)?

It is the defect of a judge who exceeds their authority (sort de son office). They rule without having been seized, decide what no court can decide, or refuse to exercise a power that the law requires them to. Abuse of power should not be confused with an error of law, even a blatant one. A poorly reasoned, badly argued, or legally incorrect judgment is not, for that reason alone, tainted by abuse of power.

Does the violation of the adversarial principle open the way for an appeal on points of law?

No, according to the judgment of July 1, 2026. A grievance based on disregard of the adversarial principle, like one based on a lack or insufficiency of reasoning, does not constitute an abuse of power. It falls under ordinary cassation (annulment) control, a control precisely closed in this matter. The argument is therefore ineffective in making the pourvoi (appeal on points of law) admissible.

Does invoking the European Convention on Human Rights change anything?

No. The Commercial Chamber rules that the alleged infringement of Article 1 of Protocol No. 1 and Article 6 § 1 does not constitute an abuse of power. This solution extends established case law from 2011 and 2012 on Article 6 § 1. The gravity of the right invoked does not factor into the qualification of abuse of power.

Who can then seize the Cour de cassation?

The public prosecutor (ministère public), and only them. Article L. 661-7, paragraph 2, of the Commercial Code reserves the pourvoi (appeal on points of law) against judgments rendered on appeal of a judgment approving or rejecting a disposal plan to the public prosecutor, and Article 592 of the Code of Civil Procedure extends this regime to judgments ruling on tierce opposition (third-party opposition). A well-argued approach to the public prosecutor therefore remains the only residual avenue.

Do I still have a remedy if the third-party opposition is rejected on appeal?

Under domestic law, no, unless there is a genuine abuse of power. Avenues external to the dispute itself remain: the question prioritaire de constitutionnalité (priority preliminary ruling on constitutionality) raised in a timely manner before the lower courts, and the application before the European Court of Human Rights after exhausting domestic remedies. Neither of these challenges a plan that has already been executed.

What is the practical lesson for a director or shareholder in Lyon?

Anticipate. Seek assistance as soon as the collective insolvency procedure is opened, before takeover bids are examined by the commercial court. Document the value of the participation and the credibility of competing offers. Treat the first instance and the appeal as the one and only trial, because there will be no cassation (Supreme Court) review.

Sources

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