Code de Commerce
by Gebhard Rehm
1. History and significance
The French Code de commerce, first passed in 1807, was intended to supplement the provisions of the Code civil as regards issues of commercial law. Many saw its particular significance in the fact that it granted (or rather presupposed) freedom of trade and commerce, one of the main achievements of the French Revolution beside the freedom of contract and the protection of ownership (property rights, protection of). In substance, however, the Code de commerce stands in the tradition of the Ordonnance du Commerce (the so-called Code Marchand or Code Savary) (Ordonnances) of 1673. In this Ordonnance, on the initiative of Jean-Baptiste Colbert, French commercial law had been codified for the first time in accordance with the prevailing mercantile principles. The original version of the Code de commerce of 5 September 1807, which came into force on 1 January 1808, is one of the so-called Napoleonic Grands Codes alongside, inter alia, the Code civil.
Despite its formal alignment with the recently enacted Code civil, the Code de commerce was still heavily influenced by the Ordonnance. For this reason, it was received with much less enthusiasm than the Code civil. A particular focus of criticism was its tendency to control tradesmen instead of protecting and expanding their commercial freedom, a feature derived from the Code Marchand. For many decades, the legislative quality of the Code de commerce was regarded as mediocre at best. Its subject matter could, of course, not assert the same claim to revolutionary changes as the Code civil, France’s ‘civil constitution’. The Code de commerce was confined to providing solutions for a series of individual problems. It did not constitute a comprehensive codification. Mercantile sales, for example, were governed by a single provision.
One of the most important innovative aspects of the Code de commerce was that it contained the first (albeit sparse) codification of stock corporation law and the law relating to commercial partnerships limited by shares, both of which were already recognized by 18th-century practice. Unlike the German Allgemeines Deutsches Handelsgesetzbuch (ADHGB) (General German Commercial Code), the French Code de commerce adhered to an objective rather than a subjective system: the applicability of its provisions was determined by the existence of a commercial transaction (acte de commerce) rather than by the involvement of a merchant (commerçant). Behind this stood the desire to avoid the impression that special courts were being created by setting up a jurisdiction applicable exclusively to merchants. Special courts had only just been abolished in the course of the Revolution.
2. Trends of legal development
Much of the original subject-matter of the Code de commerce was superseded and devalued by developments in various areas of the law and by the enactment of numerous statutes operating beside the code (the so-called décodification). This contrasts with the Code civil and the other Napoleonic Codes. The original provisions of the Code de commerce concerning commercial courts, for example, were moved to the Code of Civil Procedure (Code de procédure civile) or the Judicature Act. Company and insolvency law were similarly taken out of the code. The commercial code, which had initially consisted of 648 articles spread over four Books (general commercial law compiling a series of eclectic provisions about merchants, companies, commercial books and bills of exchange, etc; merchant shipping law; corporate insolvency law and commercial jurisdiction), in the end encompassed only about 150 provisions. No more than a small part of this by-and-large incoherent mass was actually contained in the original version of the Code de commerce. The confusing co-existence of norms of different (legal) quality—a problem of French law as a whole—led to considerable uncertainty, especially in company and insolvency law.
As early as 1947 the legislator had appointed a reform commission which was to re-integrate all special commercial statutes into the Code de commerce. But the commission itself was not convinced that a self-contained commercial code was really worthwhile or that all the problems arising could be resolved by way of codification. The actual process of re-codification began in 1993. By a decree of 18 September 2000, commercial law was brought back under the umbrella of the Code de commerce; still, however, the process was not completed until 2007.
Unfortunately, the recent re-codification is regarded by many as (once again) defective in terms of method, language and structure. It was effected as a codification à droit constant (codification under the auspices of legal continuity: the wording of a statute is changed and old statutes are repealed, but the content of the law remains the same except for provisions which have been impliedly repealed or which are unconstitutional; the relevant law thereby becomes more easily accessible and comprehensible and can be harmonized by the editors where appropriate–the process there being roughly equivalent to the US restatement technique). Since the reform, areas such as competition law, insolvency law and the procedural aspects of commercial law have once again found their place in the Code de commerce. This is one reason why many modern authors regard the term ‘commercial law’ (droit commercial) as being too narrow. They propose that the area be re-named ‘business law’ (droit des affaires) to reflect the fact that it encompasses all economic activities. This modern term, however, has not yet established itself in statutory language. It is also widely thought to be unfortunate that the competence for business law is split up between different government departments (notable examples being the Ministry of Finance, the Ministry of Justice, the Ministry of Industry, the Consumer Protection Ministry, etc) without any clear legislative plan. In particular, the Ministry of Justice is responsible for the Code de commerce while the Ministry of Finance is in charge of the Code monétaire et financier. Lastly, it must be observed that the editorial process by which the provisions were re-organized ended up far from simply giving new formulations to the existing substance of the law. Linguistic mistakes occurred en masse, and many of them still have not been completely eradicated.
As with the German commercial code (Handelsgesetzbuch), the Code de commerce now no longer follows a purely objective system (under which its applicability is determined by the nature of certain legal transactions). Nor, however, did it go over to wholly subjective criteria (by looking at the protagonists’ status as ‘merchants’). Instead, it has chosen a mixture of parameters. First, the Code de commerce is applicable to certain commercial transactions (actes de commerce) entered into by a merchant (commerçant). Besides this, there are, secondly, transactions which are always regarded as commercial by virtue of their form, even if no merchant is involved (eg transactions concerning bills of exchange). Corporate insolvency law, too, does not presuppose that anyone qualifies as a ‘merchant’, and the same is true of the provisions contained in Book Eight concerning certain professions. Thirdly, the Code de commerce contains rules governing various issues which cannot be regarded as specifically ‘commercial’ (in the sense of relating to a business or its turnover). The vagueness of the resulting system has also given rise to severe criticism.
According to Art L 110-1 (formerly Art 632) of the Code de commerce, commercial transactions fall into three categories (though there are gaps—contracts of carriage, for example, receive no mention). Beside transactions which are ‘commercial’ by virtue of their form, such as those concerning bills of exchange or commercial partnerships, the Code de commerce deals with individual commercial transactions, such as sales with a view to resale, and also with so-called ‘entrepreneurial transactions’, ie transactions repeatedly entered into under a particular organizational framework. All contracts for the supply of goods or services as well as those pertaining to the industrial production of goods are caught by commercial law. Transactions are thus commercial if they are brokered by a factor or if they relate to banking, to stock trading or to insurance contracts. Artisan small trade activities, by way of contrast, are governed by ordinary private law because they lack the necessary element of spéculation. It should be noted, however, that transactions will not only be classified as commercial if they themselves display the relevant characteristics, but also if they are entered into by a merchant for the purposes of his business. Similarly, a transaction counts as commercial if it is closely connected with a commercial transaction, such as is the case with a personal guarantee securing a commercial debt.
In Art L 121-1 (formerly Art 1) of the Code de commerce, a merchant is defined as any natural or legal person who enters into commercial transactions in his own name and for his own account as part of his ordinary profession. Natural persons have to be of full age and capacity and may not be under guardianship.
The modern Code de commerce is divided into nine Books:
(i) First Book: general commercial law (trade; definition of ‘merchant’; individual merchants such as commission merchants/factors, carriers, commercial agents; fonds de commerce, ie an economic fund set aside for business purposes);
(ii) Second Book: commercial partnerships and economic interest groupings (ordinary partnerships, limited partnerships, limited liability companies, stock corporations including the law relating to mergers and change of form, commercial partnerships limited by shares, societas europaea, French economic interest groupings, European economic interest groupings);
(iii) Third Book: special types of sale (liquidation, clearance and closing down sales, factory outlet sales, public auctions) and exclusivity clauses;
(iv) Fourth Book: freedom of fixing the price and competition law;
(v) Fifth Book: bills of exchange and guarantees;
(vi) Sixth Book: businesses in financial difficulties (including re-capitalization measures and insolvency law);
(vii) Seventh Book: commercial jurisdiction and organization of commerce;
(viii) Eighth Book: professions regulated separately (inter alia, company liquidators and auditors);
(ix) Ninth Book: applicability of the Code de commerce to French overseas territories.
The freedom of trade and commerce is enshrined in the French constitution, though it is no longer featured in the Code de commerce (ie on the level of ordinary statutory law). It may be restricted by or on the basis of an Act of Parliament, eg by the imposition of a licensing requirement for safety reasons. Foreigners are also subject to certain restrictions (EU citizens only in very exceptional cases) as are persons whose profession is incompatible with being a merchant (civil servants, Members of Parliament and those whose profession counts as ‘liberal’). Restrictions further apply to individuals who are barred from carrying on trade activities for lack of trustworthiness, eg because they have previously been convicted of property offences.
Merchants are obliged to register in the trade and companies’ register. For natural persons, registration results in the presumption that they qualify as merchants. For legal persons (including, under French law, commercial partnerships), it confers corporate status without at the same time raising any presumption. Ordinary partnerships between private individuals thus have to be registered; they do not thereby attain merchant status. Merchants are under a duty to keep accounts and regularly to produce balance sheets. They are further obliged to set up a bank account and to issue an invoice for every transaction.
Apart from this, it is hard to identify any coherent legislative policy in the light of the above-mentioned editorial, structural and linguistic defects besetting the code.
Bruno Oppetit, ‘La décodification du droit commercial français’ in Études offertes à René Rodières (1981) 197; Carola Arrighi de Casanova and Oliver Douvreleur, ‘La codification par ordonnances—À propos du Code de commerce’  JCP—La Semaine Juridique, Édition Générale 61; Dominique Bureau and Nicolas Molfessis, Le nouveau code de commerce? Une mystification (2001) 361 ff; Hervé Moysan, ‘La codification à droit constant ne résiste pas à l’épreuve de la consolidation’  JCP—La Semaine Juridique, Édition Générale 1231; François Licari and Jochen Bauerreis, ‘Das neue französische Handelsgesetzbuch—ein kritischer Beitrag zur Methode der codification à droit constant’ (2004) 12 ZEuP 132; Université Panthéon-Assas (ed), Le Code de commerce 1807–2007, Livre du Bicentenaire (2007); Pascale Bloch and Sophie Schiller (eds), Quel Code de commerce pour demain? (2007); Hans-Jürgen Sonnenberger and Reinhard Dammann, Französisches Handels- und Wirtschaftsrecht (3rd edn, 2008).
The current version of the Code de commerce may be found in Nicolas Rontchewsky, Eric Chevrier, Pascal Pisoni (eds), Code de commerce (106th edn, 2011) <www.legifrance.gouv.fr>. English translation: <http://184.108.40.206/code/liste.phtml?lang=uk&c=32>. Spanish translation: <http://220.127.116.11/code/liste.phtml?lang=esp&c=57>. Original version of 1807: <www.bicentenaireducodedecommerce.org>. Records of the legislative process may be found in Projet de Code de commerce présenté par la commission nommée par le gouvernement le 13 germinal an IX Paris, De l`Imprimerie de la République (Paris 1801–1802); Observations des tribunaux de cassation et d’appel, des tribunaux et conseils de commerce, & c: sur le projet de Code du Commerce, De l’Imprimerie de la République (1802–1803).