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

Company Law (en cours)

The right to vote is a prerogative attached to the status of an associate. This fundamental right, a mandatory public policy provision, is an essential attribute of the associate, who must have the ability to vote or not, without a voting agreement depriving them of the decision-making power that results from their possession of shares . However, their freedom to vote is not without limits: they m …

Right reserved to partners

BAJ, The transferability of voting rights, Cah. dr. entr. 1996/4, 16; DAIGRE, Is the right to vote still an essential attribute of the associate?, JCP E 1996, I, 575; HOVASSE, Halt to the "desacralization" of voting rights?, Dr. sociétés May 1999, 3; CASTAGNE, "Vote" in favor of voting rights, Dr. sociétés Oct. 2000, 6; LEDOUX, Shareholders' voting rights, LGDJ, 2002; LE FUR, "Reconciling the irreconcilable": reflection on the shareholder's voting rights, D. 2008, 2015; COUPET, The allocation of voting rights in companies, LGDJ 2015.

The right to vote is a prerogative attached to the status of an associate. This fundamental right, a mandatory public policy provision, is an essential attribute of the associate, who must have the ability to vote or not, without a voting agreement depriving them of the decision-making power that results from their possession of shares . However, their freedom to vote is not without limits: they may indeed incur liability if they exercise this prerogative with the intent to harm, particularly when voting on the dismissal of a manager .

Since only the partners have the right to participate in the company's collective decisions , the heirs of a deceased partner who have not received the approval of the other partners under the conditions specified by the articles of association cannot participate in a vote . When they hold the status of partner, in accordance with the articles of association, these heirs cannot freely exercise the rights attached to this status as long as the joint ownership lasts, since their rights are limited by rules specific to the regime of joint ownership . However, the articles of association of a partnership limited by shares cannot provide that a descendant of a general partner of the company and manager cannot vote, as they must be considered a partner of the company and such a removal of voting rights is not authorized by law .

Although it is in principle reserved for shareholders, the voting right attached to a share can be temporarily transferred. Currently, the texts recognizing the temporary transfer of voting rights concern only shares admitted to trading on a regulated market or a multilateral trading system, and focus solely on the declarations of threshold crossings that result from it . They merely transpose the provisions of the Directive of 22 October 2013 on the harmonization of transparency obligations concerning information on issuers whose securities are admitted to trading on a regulated market . This issue is the subject of intense doctrinal debates , particularly regarding the possibility of separating the voting right from the share. It has not yet been truly settled by case law .

CA Lyon, 11 June 2015, LawLex202300002824JBJ.

CA Douai, 10 October 2019, LawLex201900001208JBJ.

Cass. 1re civ., 24 April 2024, LawLex202400003315JBJ, holding that the convening of a general meeting, involving a person who no longer has the status of a partner in a professional liability law firm, constitutes grounds for its nullity; Cass. 3e civ., 8 July 2015, LawLex202200005110JBJ, annulling a general meeting during which persons who were not partners participated in the vote; Paris, 25 October 2002, LawLex200300001174JBJ, considering that a third party who is not a partner in an SNC, even if granted powers by partners, may be denied access to the company's general meeting.

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

Cass. 1re civ., 6 February 1980, LawLex202300002870JBJ.

Cass. com., 9 February 1999, LawLex202200005109JBJ, JCP G 1999, No 10168, note BLANC.

Dir. No 2013/50 of 22 October 2013 amending Directive No 2004/109/EC of the European Parliament and of the Council on the harmonization of transparency requirements concerning information about issuers whose securities are admitted to trading on a regulated market, transposed by Ord. No 2015-1576 of 3 December 2015, Art. 4, OJ of 4 December 2015.

COURET, The temporary transfer of voting rights: revisiting a taboo question, BJS 2015, 153; DAIGRE, Is the right to vote still an essential attribute of the associate?, JCP E 1996, 575; COUPET, The allocation of voting rights in companies, Thesis Paris II, 2012, 42.

See, for an aborted attempt to apply the mechanism, T. com. Paris, 19 June 2015, LawLex202300002837JBJ, considering that the securities lending clause, contained in a memorandum of understanding, under which the beneficiary of the loan can exercise the lender's voting rights at the general meeting even if he is not a shareholder, cannot be contested by a minority shareholder when the memorandum of understanding in question has not been executed in any way.

Company Law (en cours)

172. Right reserved to partners(1)

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

172. Right reserved to partners(1)

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