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

Company Law (en cours)

The partners freely exercise their voting rights. They are therefore free to vote or abstain , and are not required to justify the direction of their vote . An essential attribute of the share , the exercise of shareholders' voting rights can be regulated to some extent by the statutes, but cannot be eliminated except in cases specifically provided by law .

The law or statutory provisions may pro …

Freedom to vote or abstain

The partners freely exercise their voting rights. They are therefore free to vote or abstain , and are not required to justify the direction of their vote . An essential attribute of the share , the exercise of shareholders' voting rights can be regulated to some extent by the statutes, but cannot be eliminated except in cases specifically provided by law .

The law or statutory provisions may provide for the possibility of excluding a partner from the company for reasons determined by these texts . When a statutory clause makes exclusion subject to a collective decision of the partners, the partner concerned cannot be deprived of their right to attend the meeting and vote on the proposal . A clause that allows the excluded partner to vote, but under which their vote is not counted in the tally, is deemed unwritten if it effectively deprives them of their voting rights . The judge cannot substitute for the company's bodies and order the modification of such a clause, even if it is contrary to applicable mandatory legal provisions, but must simply declare it unwritten . However, the decision to exclude a partner based on a statutory clause whose defective wording seems to deprive them of their voting rights is not irregular as long as they were summoned and their vote was considered .

Paris, 15 December 1983, LawLex202300002772JBJ, holding that participation in the decisions of a limited liability company does not constitute an obligation for the associate, who therefore does not incur liability due to their absence from general meetings preventing decisions, even important ones, in the absence of proof of intent to harm. - Cf. in the SAS, where contractual freedom is stronger, Cass. com., 14 October 2020, LawLex202300001664JBJ, holding that the exclusion of an associate in accordance with a statutory clause providing for this sanction in case of disinterest in the company is justified when they do not attend five consecutive general meetings without invoking a legitimate reason.

CA Bordeaux, 7 December 1989, LawLex202300002904JBJ, specifying that a minority partner does not have to justify their negative vote, even in the case of abuse of rights, as the burden of proof lies with the alleged victim.

Cass. civ., 7 April 1932, LawLex202200009008JBJ.

Cass. com., 9 February 1999, LawLex202200005109JBJ, considering that the statutes of a partnership limited by shares cannot establish, for certain partners, a removal of voting rights not provided for by law.

Commercial Code, Art. L. 221-16, regarding SNC; Art. L. 231-6, regarding companies with variable capital; Art. L. 227-17, regarding SAS. - See, for an application, Cass. com., 14 October 2020, LawLex202300001664JBJ.

Cass. com., 23 October 2007, LawLex202200009052JBJ, concerning an SAS, JCP E 2007, No 1280, obs. CAUSSAIN, DEBOISSY, WICKER; JCP G 2007, No 10197, obs. BUREAU; RTD com. 2007, 791, obs. LE CANNU and DONDERO; Rev. sociétés 2007, 814, obs. LE CANNU; D. 2008, 47, obs. PACLOT; JCP E 2007, No 2433, obs. VIANDIER; D. 2007, 2726, obs. LIENHARD; RTD com. 2008, 566, obs. CHAMPAUD and DANET; Cass. com., 9 July 2013, LawLex202200010138JBJ, pronouncing the nullity of a resolution adopted on the basis of a statutory clause that authorized the exclusion of a partner in the event of engaging in a competing activity, and from which the latter had been prevented from voting.

Cass. com., 21 April 2022, LawLex202300000126JBJ, RJ com. 2022, 516, obs. DURAND; RLDA 2022, No 7608, obs. TAP.

Cass. com., 9 July 2013, LawLex202200006631JBJ, D. 2013, 1833, obs. LIENHARD; Rev. sociétés 2014, 40, note ANSAULT; RTD civ. 2013, 836, obs. FAGES and BARBIER; JCP E 2013, No 1516, obs. DONDERO; D. 2013, 2627, obs. AIT-AHMED; D. 2013, 2729, obs. HALLOUIN; Gaz. Pal. 15 September 2013, 22, obs. ZATTARA-GROS.

Cass. com., 24 October 2018, LawLex202300001686JBJ.

Company Law (en cours)

174. Freedom to vote or abstain

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174. Freedom to vote or abstain

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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