All of French Company Law: ordinary law of companies and specific regime for different types of companies

Company Law (en cours)

If the classic transfer of shares is by nature a civil matter, this is not the case for the transfer of control, which, according to consistent case law, is of a commercial nature . It follows that any dispute relating to the transfer falls under the jurisdiction of the Commercial Court and not the Judicial Court, especially when the transferors also engage professionally and habitually in commerc …

Characteristics.

If the classic transfer of shares is by nature a civil matter, this is not the case for the transfer of control, which, according to consistent case law, is of a commercial nature . It follows that any dispute relating to the transfer falls under the jurisdiction of the Commercial Court and not the Judicial Court, especially when the transferors also engage professionally and habitually in commercial activities . Case law emphasizes that the transfer in question must have the purpose and effect of ensuring that the acquirers gain control of the company whose shares are transferred, and not merely a certain influence over it . Such a transfer of control can be established by the transfer of shares that aims and results in the change of majority and manager of the company in favor of the transferee .

As a result of the commercial nature of the operation, any related dispute falls not only under the jurisdiction of the state commercial judge but may also be resolved through arbitration , and the joint liability commitment undertaken by the transferors is subject to a simple presumption of solidarity .

Cass. com., 28 November 1978, LawLex202300000877JBJ; 3 January 1985, LawLex202300000880JBJ; 5 March 1991, LawLex202300000885JBJ; 28 November 2006, LawLex202300000503JBJ. - See also Cass. com., 26 March 1996, LawLex202300000922JBJ, specifying that the rule also applies to agreements aimed at ensuring the holder retains control despite the entry of new partners into the capital.

Cass. com., 6 December 2016, LawLex202300000924JBJ.

Cass. com., 24 November 1992, LawLex202200008373JBJ; 11 July 1988, LawLex202300000921JBJ considering that the dispute related to the regularity of a transfer of shares, which neither aims nor results in a change of control of the company in favor of the transferees, since the transferors retain more than half, falls under the jurisdiction of the Judicial Court and not the Commercial Court.

Cass. com., 28 April 1987, LawLex202300000881JBJ.

Cass. 1re civ., 22 October 2014, LawLex202300000653JBJ, D. 2014, 2541, obs. CLAY; D. 2015, 56, obs. DONDERO; JCP G 2014, No 1138, obs. B. LE BARS; BJS 2014, 685, obs. BARBIERI: JCP E 2015, 1214, obs. CAFFIN-MOI; Cass. com., 2 July 2002, LawLex202300000917JBJ, considering that the act which involves the transfer of the entire share capital of companies whose control it transfers, has a commercial nature, and may be subject to arbitration; Cass. 2e civ., 30 March 2000, LawLex202200011240JBJ, considering that since the transfer of 80% of a company's shares and the purchase promise concerning the remaining shares are an integral part of an overall operation aimed at transferring full control of the company, they constitute commercial acts, which allow the application of the arbitration clause agreed by the parties, including for the remaining 20% to be settled.

Cass. com., 28 April 1987, LawLex202300000881JBJ; 11 March 2003, LawLex202300000884JBJ, specifying that a transfer of shares becomes a commercial act, for which the joint liability of debtors is presumed, if it results in conferring control of a company to the transferees; 30 August 2023, LawLex202300010763JBJ, JCP G 2023, No 1130, obs. FAVARIO; RJDA 2023, No 585; JCP E 2023, No 1299, obs. RAFFRAY; JCP E 2023, No 1263, obs. DONDERO, considering that agreements involving the transfer of control of a commercial company have a commercial nature, even if they are not concluded between merchants, so that the obligations contracted by the sellers, including the obligation of restitution resulting from the price clause in the transfer deed, are executed jointly, in the absence of an express exclusion of joint liability.

Company Law (en cours)

303. Characteristics.

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

303. Characteristics.

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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