Companies in Distress Facing Environmental Preservation Challenges[Les entreprises en difficulté face aux enjeux de la sauvegarde de l'environnement « Vers la recherche d'un juste équilibre entre deux législations antagonistes »]

Companies in financial distress are sometimes considered the linchpin of a multifaceted confrontation with other branches of law, each endeavoring to uphold the public policy interests it represents. This age-old confrontation within insolvency law is, indeed, not new; however, it has increasingly come to be viewed as an archaic issue. Today, this tension primarily centers on the reconciliation of two opposing legal frameworks: environmental law and insolvency law. Specifically, this reconciliation aims to integrate environmental preservation considerations, as Book V of the Commercial Code — currently reformed under Law No. 73-17 of April 19, 2018 — only sparsely addresses the environmental obligations imposed on a company undergoing preventive, safeguard, reorganization, or liquidation proceedings. There appears, once more, a significant need to realign economic and social imperatives with sustainable development objectives to enhance the attractiveness of the business environment, both nationally and internationally. This recalibration's core objective is to reinforce the Kingdom of Morocco's commitment to sustainable development concerns, which have attained a legislative affirmation as a global priority. This is particularly reflected in the universal principle that everyone has the right to a clean, healthy, and sustainable environment, as enshrined in the resolution adopted by the United Nations General Assembly on July 28, 2022. Any legislative decision at this level should, first, revolve around the integration of environmental issues that could jeopardize the company's going concern, requiring appointed bodies to adhere to environmental obligations during the initiation of insolvency proceedings. Second, it may be timely to recognize the trustee's authority to prepare not only an economic and social assessment but also an environmental assessment. This new mandate would enable the trustee to factor in the findings of the environmental assessment when developing a safeguard or reorganization plan. Nevertheless, such measures could remain mere formalities if the legislator does not take further steps to formalize environmental claims within Book V of the Commercial Code. This legislative shift toward recognizing environmental preservation within Book V of the Commercial Code reflects a broader commitment to realizing sustainable development goals both nationally and internationally.