The treatment of credit institutions in difficulty in the CEMAC zone.

Summary Since 2014, the CEMAC legislator has instituted a specific law on bank failures. One year later, the OHADA legislator, by reforming the common law of collective procedures, recognized the specific treatment of banking difficulties. The problem of the relevance of this specific regime has led us to demonstrate that the notion of difficulty is the main criterion of its specificity. Indeed, the common law has a patrimonial conception of difficulties. They are essentially economic or financial. The cessation of payments is the essential concept. Unavoidable in common law, it is a variable geometry notion in specific law. It is no longer the state in which the credit institution finds itself unable to meet its current liabilities with its available assets, but rather when it can no longer ensure its payments immediately or within thirty days. In addition to this adaptation of the definition of cessation of payments, the CEMAC legislator considers, in an unprecedented manner, that the withdrawal of approval constitutes cessation of payments. However, there are two procedures for withdrawal of approval, namely disciplinary and prudential withdrawal of approval. Thus, the cessation of payments may be disciplinary or prudential depending on the procedure for withdrawal of approval. From a procedural point of view, cessation of payments is not a condition for the opening of collective proceedings under CEMAC law. In terms of receivership, the procedure will be triggered by the assent of COBAC. As far as the liquidation of assets is concerned, the withdrawal of approval automatically opens the procedure. Today, one is entitled to ask the question of what remains of the cessation of payments. In truth, nothing remains of the cessation of payments since even in defining a credit institution in difficulty, the CEMAC legislator does not refer to it. It considers that a credit institution is in difficulty when COBAC notes major dysfunctions of any kind having an immediate or foreseeable impact on its management and/or financial structure. As a result, the concept of difficulties in CEMAC law is more extensive than in common law. This is why we propose a reform of common law to provide a more objective assessment of the notion of difficulty, in particular by rating or by the classification of claims inspired by banking regulations, and an extension to extra-economic or financial difficulties such as the withdrawal of approval or the cessation of activities. The problem of the relevance of the specific regime also leads to the question of the conditions of its cohabitation with ordinary law. The general result is that COBAC controls the opening of the ordinary law procedure, either by prior authorization, or by assent, or by the appointment of a bank liquidator, a sort of "two-sided janus", or finally by splitting the assets of the credit institution into banking and non-banking segments. Better still, the COBAC has a right of veto. No collective proceedings may be opened against a credit institution under provisional administration or restructuring. COBAC's right of control is justified by the fact that it has the powers and the most effective measures, notably the Guarantee Fund, to avoid systemic risk.