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Company Law (en cours)

The transformation of a company often involves a statutory auditor or, failing that, a transformation auditor, responsible for preparing a report on the basis of which the decision to transform is made. The auditor may incur liability in the performance of their duties when they commit errors likely to harm the company. This is the case when the transformation auditor of an SARL into an SA certifi …

Liability in the preparation of the report.

The transformation of a company often involves a statutory auditor or, failing that, a transformation auditor, responsible for preparing a report on the basis of which the decision to transform is made. The auditor may incur liability in the performance of their duties when they commit errors likely to harm the company. This is the case when the transformation auditor of an SARL into an SA certifies in their report that the amount of shareholders' equity is at least equal to the amount of the share capital, without taking into account provisions for charges in determining the financial result of the fiscal year, and in particular the provision for collection costs, which would have allowed them to establish, without having to conduct an in-depth analysis of the company's operations, the loss-making nature of the activity .

In reality, case law rarely holds the transformation auditor liable, as it considers that the auditor is not tasked with certifying or verifying the regularity of the accounts on which they rely  and that it is the responsibility of the purchaser of shares in the company undergoing transformation to conduct the necessary studies to ensure the financial health of the target . A fortiori, the transformation auditor's report does not engage their liability when they have not merely endorsed the presentation made by the manager but have made corrections to the figures produced internally, and the error regarding the amount of shareholders' equity reduces rather than increases the gap between it and the corporate capital . Similarly, the fault of the transformation auditor, who is only bound by a best-efforts obligation, cannot result solely from the finding of a level of shareholders' equity lower than the corporate capital, revealed after the establishment of their report .

Metz, 19 September 2013, LawLex202300002267JBJ, holding that in accordance with Articles L. 822-18 and L. 225-254 of the Commercial Code, liability actions against the statutory auditor are subject to a three-year limitation period from the filing of the transformation report. - Cf. Amiens, 26 November 2019, LawLex202300002247JBJ, considering that the limitation period for action against the transformation auditor, when not sought in their capacity as statutory auditor, is not three years but five years; Cass. com., 4 November 2021, LawLex202200009454JBJ, considering that the civil liability action brought against a transformation auditor in the conversion of an SARL into an SAS without a statutory auditor does not fall under the three-year limitation period.

Cass. com., 10 December 2013, LawLex202100002954JBJ.

Amiens, 26 November 2019, LawLex202300002247JBJ; Paris, 27 November 2014, LawLex202300002246JBJ, holding that the transformation auditor, who neither conducts an audit nor certifies the regularity of the accounts on which he relies and which he is not tasked with verifying, cannot be held liable for changes in estimates that fall under the management authority of the new company leadership.

CA Metz, 19 September 2013, LawLex202300002267JBJ.

Company Law (en cours)

215. Liability in the preparation of the report.

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215. Liability in the preparation of the report.

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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