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

Company Law (en cours)

The partner exercising their right of withdrawal must obtain reimbursement from the company or the partners  for the entirety of their rights , notwithstanding any failure on their part to fully pay up capital . The value of the shares is determined by the parties or, failing agreement, by an expert they have appointed  or, in case of disagreement on this appointment, by an expert appointed by the …

Financial rights

The partner exercising their right of withdrawal must obtain reimbursement from the company or the partners  for the entirety of their rights , notwithstanding any failure on their part to fully pay up capital . The value of the shares is determined by the parties or, failing agreement, by an expert they have appointed  or, in case of disagreement on this appointment, by an expert appointed by the court . The value of the withdrawing partner's shares must be determined as close as possible to the date of their reimbursement and not at the date of the expert report  or the decision authorizing the withdrawal . In the context of professional companies, the buyback value of the shares of a withdrawing partner must include their right to present clientele , whether the shares are bought back by a third party or by the company or some of its partners .

As long as the withdrawing partner has not been fully reimbursed for their shares, they retain the status of associate with all the rights attached thereto, including when their departure is already effective , particularly the right to receive dividends , which they cannot be ordered to repay , or the right to contest the allocation of profits to reserves . Similarly, a withdrawing associate remains entitled to bring an action for the nullity of general meetings as the owner of canceled shares, as a creditor of the company, and for the protection of retained proprietary rights . Furthermore, the withdrawing partner may reestablish themselves before the reimbursement of their social rights when the company has accepted the principle of their withdrawal and the time allotted to the company to proceed with the sale or repurchase of their shares has expired, in the absence of a serious proposal . However, the transfer by the associate of an SCI of their shares to a third party, in disregard of the withdrawal procedure with repurchase of those shares, which is ongoing and has been accepted by the company, must be annulled .

Rather than the reimbursement of their shares, the withdrawing partner may request the return of the assets contributed at the company's formation. Jurisprudence indeed considers that the reimbursement of the withdrawing partner's shares in a civil company cannot be imposed if they choose the preferential allocation of the assets they contributed, when these are still present in kind in the company's assets, even in the absence of the company's dissolution . In fact, a partner in a forestry group exercising their right of withdrawal may obtain the return of the land contributed when these are still present in kind in the company's assets . Even when this is possible, particular attention must be paid to such an operation, as jurisprudence considers that a withdrawing partner who receives real estate in exchange for the value of the canceled shares, when they were not the contributor, may see the operation annulled on the grounds that it is a distribution operation and not a share buyback . Furthermore, a partner can only claim the full return of their contribution if, at the time of their exit, the company's assets remain at least equal to the share capital .

Cass. 1re civ., 22 October 2009, LawLex202300001653JBJ, holding that the transfer of all the shares of the withdrawing partner to their co-partner is valid, in the absence of a response from the other common partner within the time limit provided by the statutes.

Paris, 11 September 2014, LawLex202300002235JBJ, however, considering that when a cooperative incurs a significant deficit, the claim for contribution to losses that exists at the time of the member's withdrawal is deducted from the reimbursement of their shares.

Cass. 1re civ., 16 September 2010, LawLex202300002225JBJ; 1 July 2010, LawLex202300002224JBJ.

Cass. com., 27 April 2011, LawLex202300001553JBJ; Cass. 1re civ., 10 September 2014, LawLex202300002227JBJ.

Cass. com., 17 June 2008, LawLex202200006085JBJ.- Cf. Cass. 1re civ., 8 January 2020, LawLex202300000740JBJ, emphasizing that the withdrawing associate cannot request the payment of their share in the distributable profits if a clause in the statutes provides that the distribution is based on contributions in the form of services and not on capital contributions.

Cass. com., 7 July 2021, LawLex202300001609JBJ, adding that as long as he has not obtained full reimbursement of the value of his shares, the withdrawing associate retains an interest in initiating legal action to annul general meetings that do not take his proprietary rights into account.

Cass. 1re civ., 12 June 2012, LawLex202300001438JBJ.

Cass. 3e civ., 25 May 2023, LawLex202300007303JBJ.

Cass. 3e civ., 12 May 2010, LawLex202300001456JBJ.

Cass. com., 22 March 2005, LawLex202300001554JBJ.

Cass. com., 2 February 2010, LawLex202300001447JBJ.

CA Paris, 11 September 2014, LawLex202300002235JBJ.

Cass. com., 10 February 2015, LawLex202200003086JBJ, considering that the partner who withdraws due to disagreement with the co-partner is entitled to the reimbursement of the value of their shares notwithstanding the failure to release their share of capital.

Cass. 1re civ., 25 November 2003, LawLex202300000389JBJ.

Cass. 1re civ., 25 November 2015, LawLex202300001648JBJ.

Cass. com., 9 November 2022, LawLex202200010034JBJ, JCP E 2022, No 1404, obs. DONDERO; Gaz. Pal. 14 March 2023, 66, obs. MEZACHE.

Cass. com., 15 January 2013, LawLex202300000393JBJ; 4 May 2010, LawLex202300001449JBJ. - Cf., for notaries, Cass. 1re civ., 28 June 2007, LawLex202300001655JBJ, holding that the valuation of the shares of the withdrawing partner must occur on the date of publication of the ministerial order authorizing the withdrawal.

Cass. 1re civ., 18 June 1996, LawLex202300001451JBJ, considering that the withdrawing notary partner is entitled to the value of their shares and may claim all the proprietary rights they hold in the company on the day of their withdrawal, including their share of the value of the right to present clients.

Cass. 1re civ., 3 March 1993, LawLex202300001636JBJ.

Cass. 1re civ., 16 April 2015, LawLex202300001450JBJ; 12 May 2016, LawLex202300002228JBJ, Rev. sociétés 2016, 676, obs. SAINTOURENS. - Cf. CA Paris, 17 June 2008, LawLex202200011451JBJ, holding that the associate contributing services in a professional civil partnership of lawyers who exercises their right of withdrawal cannot claim the allocation of profits for the fiscal year closed after their departure.

Company Law (en cours)

308. Financial rights

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308. Financial rights

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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