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

Company Law (en cours)

The right of withdrawal characterizes the ability granted to a partner to exit the company in exchange for the reimbursement of their rights. Such an ability arises from the law or the articles of association.
Certain texts expressly provide for a right of withdrawal. Indeed, Article 1869 of the Civil Code allows partners in a civil company to withdraw when the statutes provide for it . Similarly, …

Right recognized for partners

The right of withdrawal characterizes the ability granted to a partner to exit the company in exchange for the reimbursement of their rights. Such an ability arises from the law or the articles of association.

Certain texts expressly provide for a right of withdrawal. Indeed, Article 1869 of the Civil Code allows partners in a civil company to withdraw when the statutes provide for it . Similarly, Article L. 231-6 of the Commercial Code establishes a right of withdrawal for partners in variable capital companies, stating that each partner may withdraw when they deem it appropriate, unless otherwise agreed. Furthermore, Article L. 221-12 of the Commercial Code offers the manager of an SNC who has been dismissed the possibility to withdraw from the company.

Other withdrawal scenarios are more implicit: Article L. 223-14 of the Commercial Code, which notably provides that when, as in the SARL, the transfer of the company's shares to third parties is subject to approval, the refusal of approval requires the partners to buy back the transferor's shares, thereby granting them a de facto right of withdrawal .

Such a faculty cannot be withdrawn from the partners, nor excessively restricted . Indeed, the general meeting decision that subjects the withdrawal of a partner and the reimbursement of their shares to the realization of the company's real estate assets undermines the effectiveness of their right of withdrawal . Similarly irregular and incompatible with respect for individual freedom is the statutory clause of a variable capital company that limits the partner's right of withdrawal by a commitment of ninety-nine years . However, the clause that requires the withdrawing partner to contribute to the fixed costs incurred by an SCP during the year following their departure does not prevent them from exercising their right of withdrawal and is proportionate to the legitimate interests of the company, as long as it is justified by the absence of a non-compete clause and the amount of the contribution to fixed costs, based on the extent of the activity carried out by the withdrawing partner until the day of their departure, does not apply to all of these costs .

In some companies, however, the right of withdrawal is expressly excluded. Thus, in the absence of special legal provisions allowing it, a partner in a SELARL of lawyers cannot unilaterally withdraw from the company, nor obtain a court decision authorizing their withdrawal, even if the statutes allow it .

The exercise of the right of withdrawal must be unequivocal  and carried out in a timely manner: the withdrawal request submitted by a partner of a company in the process of liquidation must be rejected if the resulting operations are unrelated to the needs of the liquidation . Finally, the partner who has announced their withdrawal is free to renounce it as long as they have not found a buyer at the price or under the conditions they desire, without being compelled to withdraw by the other partners .

Cass. com., 4 December 2012, LawLex202300001434JBJ, holding that the right of withdrawal, provided for by the company's statutes as well as by Article 1869 of the Civil Code, is strictly personal and cannot be exercised by the indirect action of the customs administration in place of the partners.

For applications, See Cass. com., 2 July 1996, LawLex202300003823JBJ; 13 March 2024, LawLex202400002240JBJ. - Also see, admitting the buyback clauses of shares following a refusal of approval in SNCs, Aix-en-Provence, 25 May 2007, LawLex202200009469JBJ; CA Caen, 15 October 2015, LawLex202200010183JBJ.

Cass. com., 1 March 2011, LawLex202200004053JBJ, considering that a non-reinstallation clause contained in the internal regulations of a non-trading private company, which imposes significant restrictions on the free exercise of their right of withdrawal by the partners, must be declared incompatible with the company's statutes, when these only aim to facilitate the exercise of each member's activity. - Cf. Cass. com., 14 April 2015, LawLex202300001440JBJ, considering that the decision of the general meeting of a non-trading private company may attach conditions to the authorization of a partner's withdrawal.

Cass. 3e civ., 29 September 2016, LawLex202300001445JBJ.

Cass. com., 3 July 1973, LawLex202300002236JBJ; Cass. 1re civ., 27 April 1978, LawLex202300002237JBJ, for a duration of fifty years. - Cf. Cass. 1re civ., 30 May 1995, LawLex202300001436JBJ, holding that a duration of thirty years, shorter than the average professional life, does not infringe on the respect for individual freedom.

Cass. 1re civ., 8 January 2020, LawLex202300000740JBJ.

Cass. 1re civ., 12 December 2018, LawLex202300001433JBJ.

Cass. 3e civ., 8 July 1998, LawLex202300001437JBJ, considering that the withdrawal of partners from a civil company cannot result solely from the fact that they do not use certain equipment of the real estate residence in question, if it is not accompanied by a transfer of their lot.

Cass. com., 12 February 2013, LawLex202300001439JBJ. - Cf. Cass. 1re civ., 13 December 2005, LawLex202300002057JBJ, considering that a partner may withdraw from a company dissolved by the expiration of its term, under the financial conditions provided by the statutes, as long as these continue to govern the relations between the partners, the company having become de facto due to the continuation of the common activity and the affectio societatis.

CA Versailles, 27 February 2024, LawLex202400002200JBJ.

Company Law (en cours)

306. Right recognized for partners

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

306. Right recognized for partners

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise