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

Company Law (en cours)

The invalidity of resolutions is based both in ordinary law and in the special law of companies. In the ordinary law of companies, Article 1844-10 of the Civil Code specifies that the invalidity of acts or resolutions of the company's bodies can only result from the violation of a mandatory provision of Title IX, relating to the company (Articles 1832 to 1873), except for the last paragraph of Art …

Violation of mandatory rules

The invalidity of resolutions is based both in ordinary law and in the special law of companies. In the ordinary law of companies, Article 1844-10 of the Civil Code specifies that the invalidity of acts or resolutions of the company's bodies can only result from the violation of a mandatory provision of Title IX, relating to the company (Articles 1832 to 1873), except for the last paragraph of Article 1833 , or from one of the causes of invalidity of contracts in general. In particular, a general meeting must be annulled when persons who do not have the status of partners have participated in the vote, in violation of the mandatory provisions of Article 1844 of the Civil Code .

In special company law, Article L. 235-1 of the Commercial Code  distinguishes the invalidity of acts that amend the articles of association from the invalidity of other acts or resolutions. The former can only result from an express provision of Book II of the Commercial Code relating to commercial companies and economic interest groupings or the laws governing the invalidity of contracts. The latter can only result from the violation of a mandatory provision of Book II of the same code, except for the first sentence of the first paragraph of Article L. 225-35 and the third sentence of the first paragraph of Article L. 225-64, or the laws governing contracts, except for the last paragraph of Article 1833 of the Civil Code . In fact, the violation of a provision of a shareholders' agreement, assuming it is characterized, is not likely to result in the invalidity of resolutions adopted at a general meeting, which can only proceed from an express provision of the Commercial Code or the laws governing contracts . As long as the invalidity of resolutions adopted in violation of a mandatory or contractual provision has not been declared pursuant to the combination of Articles 1103 of the Civil Code and L. 235-1 of the Commercial Code, they are binding on the partners .

On the other hand, the use of capital reduction/increase operations, when carried out to defraud the rights of the minority and aimed at ousting them, must be sanctioned by the invalidity of the resolutions relating to these operations .

Moreover, the resolutions of an ordinary and extraordinary general meeting of an SAS cannot be annulled, even if they were made without each shareholder having the right to participate in the decisions and having a number of votes equal to the shares they hold, as long as the mandatory public policy provisions of Articles L. 223-28 and L. 233-29 of the Commercial Code, which establish these rights, do not apply to SAS . Furthermore, by way of derogation from the general principle set out in Article L. 235-1, the Court of Cassation recently made a significant reversal of case law to decide that for these companies, in which the organization and social functioning are essentially governed by statutory freedom, the violation of a statutory provision can, just like the violation of a mandatory provision of company law, lead to the nullity of a resolution .

Pursuant to which “[t]he company is managed in its corporate interest, taking into consideration the social and environmental issues of its activity.”

Cass. 3e civ., 8 July 2015, LawLex202200005110JBJ.

"The invalidity of a company or an act amending the articles of association can only result from an express provision of this book or the laws governing the invalidity of contracts. Regarding limited liability companies and joint stock companies, the invalidity of the company cannot result from a defect in consent or incapacity, unless it affects all the founding partners. The invalidity of the company also cannot result from clauses prohibited by Article 1844-1 of the Civil Code."

The invalidity of acts or resolutions other than those provided for in the preceding paragraph can only result from the violation of a mandatory provision of this book, except for the first sentence of the first paragraph of Article L. 225-35 and the third sentence of the first paragraph of Article L. 225-64, or the laws governing contracts, except for the last paragraph of Article 1833 of the Civil Code.

For applications, See Cass. com., 13 January 2021, LawLex202200006428JBJ, considering that a resolution of the general meeting of a company's associates granting exceptional remuneration to its manager can only be annulled in the event of a violation of mandatory provisions applicable to commercial companies or of laws governing contracts, and not solely on the grounds of its contradiction to the corporate interest, except in cases of fraud or abuse of rights committed by one or more associates to favor their interests to the detriment of one or more other associates; 14 June 2005, LawLex202300003622JBJ, specifying that the nullity of acts or resolutions of an economic interest grouping can only result from the violation of mandatory provisions of the texts governing this type of grouping or from one of the causes of nullity of contracts in general, and not from those of the statutes. - See similarly, a contrario, Cass. 3e civ., 19 July 2000, LawLex202200005986JBJ, holding that non-compliance with the provisions of the statutes or the decree requiring the signing of the minutes of the meeting during which a manager is revoked, which does not constitute a mandatory provision, is not likely to lead to the annulment of the resolutions in question; Douai, 24 September 2020, LawLex202300003319JBJ, affirming that Article 15 of the law of 6 January 1986 relating to the voting rules of resolutions affecting the charges owed by associates in time-share property allocation companies does not constitute a mandatory public policy provision whose violation is likely to lead to the annulment of the resolution.

Paris, 13 February 2024, LawLex202400002204JBJ.

Cass. com., 12 February 2025, LawLex202500000997JBJ, Gaz. Pal. 17 June 2025, No 20, pp. 35-38.

Cass. com., 15 March 2023, LawLex202300004241JBJ, JCP E 2023, No 1093, obs. DONDERO; RJDA 2023, No 263.

Company Law (en cours)

200. Violation of mandatory rules

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200. Violation of mandatory rules

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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