Introduction

Scope of application

Compliance program

Protection of whistleblowers

Audit and sanctions

Rules arising from the Sapin II Law

EU law

French law

Rules derived from competition law

Sapin II Law/Competition

Scope ratione personae

Scope ratione materiae

Scope

Development of plan

Measures included in plan

Inclusion in management report

Vigilance plan

Injunctions

Civil liability

Sanctions

Duty of vigilance (devoir de vigilance)

CSR programs

Reporting

Communication

Reporting and communication

Judicial sanctions

Risk to reputation, strategy and stability

Corporate Social Responsability (CSR)

Middlenext Code

IFA Corpus

AFEP - MEDEF Code

Types

Principles of governance

Principles incorporating CSR values

Principles

Comply or explain

Binding force

Private codes of conduct

Compliance

In accordance with Article L. 233-16, II of the Commercial Code, controlled undertakings subject to the duty of vigilance are those whose control results from three separate factors.
The first is direct or indirect ownership of the majority of voting rights in another company. The existence of control within the meaning of this article may be inferred from the systematic convergence of the votes o …

Responsibility of parent company for acts of subsidiaries

In accordance with Article L. 233-16, II of the Commercial Code, controlled undertakings subject to the duty of vigilance are those whose control results from three separate factors.

The first is direct or indirect ownership of the majority of voting rights in another company. The existence of control within the meaning of this article may be inferred from the systematic convergence of the votes of the directors of a company which holds more than 95% of the capital of the majority shareholder of the company in question, and from the use of the equity method of affiliation . On the other hand, this is not the case where one company holds less than 50% of the capital and 39% of the voting rights of another, even if they are run by the same managers , nor where there are no capital links between the allegedly dominant company and the allegedly dominated company , or where the former holds voting rights and has judgment over the latter, even if there is a relationship of economic dependence between them .

The second results from the appointment, for two successive financial years, of a majority of the members of the administrative, management or supervisory bodies of another company . The consolidating company is presumed to have made this appointment when, during this period, it directly or indirectly held more than 40% of the voting rights, and no other partner or shareholder directly or indirectly held more than its own. According to case law, a transfer of shares limited to 49% of the capital of the transferee company may conceal a change of control, as long as it is immediately contradicted by the granting to the transferee of exorbitant prerogatives, characteristic of those of a majority shareholder, such as the power to dismiss the chairman of the company at its sole discretion, the power to oppose any decision taken by this body by its absence at general meetings, and a right of veto over all major management judgments .

Lastly, control may derive from the right to exercise a dominant influence over an company by virtue of a contract or statutory clauses, where permitted by the applicable law.

Persons intending to base a future action on Article L. 225-104-2 of the Commercial Code must demonstrate the existence of indications making it likely that the company concerned by their request for investigative measures has control over the company responsible for the alleged infringements, within the meaning of Article L. 233-16, II .

The law presumes that the parent company, by exercising control over the subsidiary, is in a position to influence the areas covered by the duty of vigilance. It is therefore the parent company's duty to ensure that subsidiaries actually implement concrete measures of due diligence (vigilance).

CA Versailles, 1 December 2022, LawLex202300011618JBJ.

CA Douai, 10 September 2019, LawLex202200007885JBJ.

CA Besançon, 27 March 2018, LawLex202200009751JBJ.

Cass. com. 26 February 2013, LawLex201300000265JBJ.

Compliance

108. Responsibility of parent company for acts of subsidiaries

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

108. Responsibility of parent company for acts of subsidiaries

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise