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

Company Law (en cours)

Voting agreements are commitments made between partners, often included in shareholders' agreements . They allow several partners to mutually commit to voting in a specific way . Although no law prohibits them , voting agreements must not be contrary to the company's interests or infringe upon the partner's voting rights, which are fundamental and a mandatory public policy provision . They become  …

Compliance with corporate interest

TUNC, Agreements relating to voting rights, Rev. gén. dr. com. 1942, 967; FREYRIA, Study of case law on agreements infringing voting freedom in companies, RTD com. 1951, 419; PENNEAU, On the irregularity of voting agreements in commercial company law, JCP CI 1975, II, 11776; VIANDIER, Observations on voting agreements, JCP E, 1986, 15405; JEANTIN, Voting agreements, RJ. com. special issue, Nov. 1990, 124; STORCK, Regulation of voting agreements between shareholders, RJ com. 1991, 97; MERCADAL, For the validity of voting agreements between shareholders, RJDA 1992, 727; DIDIER, Voting agreements, in Mélanges J. Foyer, PUF, 1997, 341; VIANDIER, After Mr. Jeantin's article on voting agreements, in Mélanges Jeantin, Dalloz, 1999; CONSTANTIN, Reflections on the validity of voting agreements, in Mélanges Ghestin, LGDJ, 2001, 253; COHEN, Voting agreements, in Mélanges Larroumet, Economica, 2010, 97; LUCAS, Specific performance of voting agreements, BJS 2011, 625.

Voting agreements are commitments made between partners, often included in shareholders' agreements . They allow several partners to mutually commit to voting in a specific way . Although no law prohibits them , voting agreements must not be contrary to the company's interests or infringe upon the partner's voting rights, which are fundamental and a mandatory public policy provision . They become illegitimate if a partner feels compelled to relinquish their voting freedom .

A voting agreement is lawful when it is based on an informed commitment by the signatory shareholders, who are aware of the resolutions submitted to their vote, does not entail the transfer of voting rights or infringe upon the principle of free revocability of corporate officers, and, intended to establish a stable and lasting policy, does not contradict the corporate interest . The same applies to a voting agreement entered into for an indefinite period, as long as it can be unilaterally terminated at any time . A voting commitment made knowingly in a memorandum of understanding is also lawful as long as it does not eliminate the shareholder's voting right but only restricts it for a specific transaction, and is in line with the corporate interest and free from any idea of fraud . Conversely, a voting agreement cannot be considered in line with the corporate interest if the company asks its shareholder to vote against resolutions while it itself votes favorably for two of them , or if one party asks another to vote against the approval of the accounts of a closed fiscal year, when no accounting element justifies such a decision . Finally, a voting agreement does not respect the shareholder's voting right when, due to its very vague and general wording, it deprives them of any freedom of judgment, and de facto, of the decision-making power attached to the holding of their securities, for an indefinite period .

Article L. 242-9, 3° of the Commercial Code punishes with two years' imprisonment and a fine of 9,000 euros the act of obtaining, guaranteeing, or promising advantages to vote in a certain way or not to participate in the vote, as well as the act of granting, guaranteeing, or promising these advantages. A potential consultation by the manager and general partner with other limited partners to encourage them to vote against the resolutions submitted by certain partners and a possible violation of Article L. 242-9, 3° justify the granting of an in futurum expertise measure.

GUYON, Treatise on Contracts. Companies. Statutory Arrangements and Agreements Between Associates, LGDJ, 5th ed., 2002.

CA Lyon, 11 June 2015, LawLex202300002824JBJ.

Paris, 12 February 2021, LawLex202300005160JBJ.

Article 10 of the decree-law of 31 August 1937 declared "null and void in their main and ancillary provisions, clauses intended to or resulting in an infringement of the free exercise of voting rights in general meetings of commercial companies," JO 1 September 1937. This provision was not included in the 1966 law. Today, voting agreements are only mentioned in Art. L. 233-3, I, 2° and Art. L. 233-16, II, 3° of the Commercial Code, relating to the definition of control, and in Art. L. 233-10, on concerted action.

Besançon, 17 February 2010, LawLex202300002825JBJ. - See already, Cass. com., 10 June 1960, LawLex202300003888JBJ.

Paris, 4 December 2012, LawLex202300002805JBJ.

CA Paris, 30 June 1995, LawLex202300002866JBJ.

CA Lyon, 11 June 2015, LawLex202300002824JBJ, previously cited.

Company Law (en cours)

176. Compliance with corporate interest(1)

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176. Compliance with corporate interest(1)

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