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

Company Law (en cours)

Article 1844, para. 1, of the Civil Code establishes the fundamental principle that every partner has the right to participate in collective decisions. Each partner must indeed be able to express their opinion on the various resolutions submitted for the approval of the company's members, regardless of the mode of consultation: general meeting, written consultation, unanimous decisions. This irred …

Distinction with the right to participate in collective decisions

COURET, The destinies of voting rights in the 2019 reforms of French Company Law, JCP E 2019, 1501; ROUSSILLE, The voting right of the associate, fundamental right?, Dr. sociétés, 2014, No 15, 9; KADDOUCH, The irreducible voting right of the associate, JCP E 2008, 1549; DOM, The existence of the voting right of the associate, fundamental principle of French Company Law, RJDA 2008, 3.

Article 1844, para. 1, of the Civil Code establishes the fundamental principle that every partner has the right to participate in collective decisions. Each partner must indeed be able to express their opinion on the various resolutions submitted for the approval of the company's members, regardless of the mode of consultation: general meeting, written consultation, unanimous decisions. This irreducible right of the partner, which allows no exception , is distinct from the right to vote, which consists of the ability to take a position at the time of adopting collective decisions.

If, in principle, the two rights coincide, they can be dissociated in certain hypotheses. After initially solemnly stating that as an essential attribute of the share, the voting right could be regulated to a certain extent by the statutes but could not be removed in any case , the Court of Cassation now admits that the statutes may derogate from this right in cases strictly provided by law. Article 1844 itself provides for two cases of dissociation. Paragraph 2 considers the hypothesis of co-ownership of an indivisible share: co-owners may be present at general meetings , but are represented by a single proxy, who exercises the voting right on their behalf . Then, in accordance with paragraph 3, if a share is burdened with a usufruct, the bare owner and the usufructuary have the right to participate in collective decisions, but the voting right belongs to the bare owner, except for decisions concerning the allocation of profits, in which case it is reserved for the usufructuary. For other decisions, the bare owner and the usufructuary may agree that the voting right will be exercised by the usufructuary, without derogating from the bare owner's right to participate in collective decisions . Other special provisions exclude the voting right of a partner, particularly in cases of conflict of interest, such as Article L. 223-19, paragraph 1, of the Commercial Code, which provides that during the vote concerning a regulated agreement, the manager or interested partner cannot participate in the vote and their shares are not counted for the calculation of the quorum and majority.

Cass. com., 4 January 1994, LawLex202200011309JBJ; 22 February 2005, LawLex202200009365JBJ; Cass. 2e civ., 13 July 2005, LawLex202200009809JBJ.

Cass. civ., 7 April 1932, LawLex202200009008JBJ.

Cass. com., 21 January 2014, LawLex202200009191JBJ.

CA Versailles, 31 March 2022, LawLex202200011202JBJ.

Cass. com., 4 January 1994, LawLex202200011309JBJ, affirming that while the statutes of a company may provide for a derogation from voting rights to the detriment of the bare owner, the same does not apply to the right to participate in collective decisions, which does not allow for any derogation; 22 February 2005, LawLex202200009365JBJ; Cass. 2e civ., 13 July 2005, LawLex202200009809JBJ, considering that if a statutory clause, according to which the usufructuary validly represents the bare owner for all corporate decisions regardless of their subject, allows the usufructuary to exercise the voting right alone, it cannot have the effect of depriving the bare owner of the right to participate in collective decisions.

Company Law (en cours)

171. Distinction with the right to participate in collective decisions(1)

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Les notions juridiques connexes

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