It is deeply original operations as they take universal transfer of heritage i

The right of pre-emption of the Commons on the transfers of funds of trade, craft funding, and commercial leases and, since the recent law of modernization of the economy, on transfers of land from commercial development projects may prove inbreeding, both are large uncertainties about its scope. Is having previously a "perimeter for the protection of trade and craftsmanship of proximity", Commons can now pre-empt transfers of enterprises or leases, subject to reconvey to the private sector within a maximum period of one year.

But, and this is a major difficulty, raised the mechanism, to what business and to what operations the preemption can be applied For businesses, despite the displayed objectives of preservation of the commerce of proximity, text is potentially any company, whatever its sector of activity or its size. However, it is difficult that international industrial Fund may enter in the field of the perimeter of protection defined by the municipality.

Transfer of funds or leases

Even more difficult is the question of the nature of the specified operations. The legislature has provided that the right of pre-emption apply in the case of "disposals". That decide, then, for the transfer of funds (or leases) without payment of a price Specifically, this concerns (including) inputs in society, but also operations merger, scission or partial transfers of assets subject to the regime of the divisions.

It can be argued with force that the mergers, divisions, partial contributions of assets are not, legally, of the "transfers". It is deeply original operations as they take universal transfer of heritage, i.e. transfer both assets and liabilities. The Court of cassation has had the opportunity to say so on several occasions and, more recently, in a judgment of 12 February 2008 on the terms of approval: a clause only assignments cannot be applied to the transmission of shares by way of a merger of companies, "which the mechanism is different from the assignment. Analysis which takes into consideration the legal nature of the transaction may, in all likelihood, be extended to the mechanism of the preemption; solution even if the enforcement order uses, unfortunately, the term of alienation, potentially broader.

Payment of a fee

Intakes of society is less certain: first, the jurisprudence tends to include in the term "surrender" all types of transfers by particular title, but also sales contribution in society; then in the right of pre-emption classic on building (SPS), the contributions are concerned. But, specifically, the right of first refusal on funds and lease is not a simple decal of the SPS. Thus, the new device does not the possibility of two modalities of intervention of the commune, that alienation is being considered as a sale by mutual agreement are not subject to consideration in kind or that it operates on a different basis. Clearly, the device on funds and leases is built on the assumption that the operation is necessarily the payment of a fee.

Remains an ultimate challenge. The "Declaration of intent to dispose" form, which must be sent to the House of Commons having defined a "perimeter of backup" expressly provides in part "terms of surrender", the hypothesis of the intake of society. It is therefore feared that Commons, based on this established on the basis of a simple order form required the Declaration of company funds or leases inputs, then yet that, legally, such an operation should escape the grip of the preemption.

In short, you can only deplore current legal insecurity born of inadequate coordination in the drafting of the provisions for the application of the device. It is hoped that Commons will use wisely the quite formidable device they have, and that companies which make excluded restructuring of the scope of the mechanism of pre-emption will not routinely suspected of fraud.