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

Company Law (en cours)

Article L. 223-28 of the Commercial Code provides that each partner has the right to participate in decisions and has a number of votes equal to the number of shares they hold. This principle reflects the egalitarian nature of voting rights in an SARL, which can only be restricted or removed by the legislator. This is the case, notably, with Article L. 223-19, which prohibits a partner interested  …

Content of the partner's voting rights.

Article L. 223-28 of the Commercial Code provides that each partner has the right to participate in decisions and has a number of votes equal to the number of shares they hold. This principle reflects the egalitarian nature of voting rights in an SARL, which can only be restricted or removed by the legislator. This is the case, notably, with Article L. 223-19, which prohibits a partner interested in a regulated agreement from participating in the vote, or Article L. 653-9, para. 1, which deprives managers/partners subject to personal bankruptcy or management prohibition of voting rights.

Personal right, the right to vote is also non-transferable. The personal nature of the right to vote does not exclude it from being exercised by a representative. In fact, an incapacitated associate, just like a corporate associate, is represented by their legal representatives. Furthermore, Article L. 223-28 provides that an associate may be represented by their spouse unless the company consists only of the two spouses. Unless there are only two associates, an associate may also be represented by another associate. However, they can only be represented by another person if the statutes allow it. Similarly, case law holds that it follows from the combination of Articles 1844, para. 1, and 1844-10, para. 3, of the Civil Code that the participation of a person who does not have the status of associate in the collective decisions of a limited liability company constitutes grounds for the nullity of the general meetings during which these decisions were made, as long as the irregularity is likely to affect the outcome of the decision-making process .

Finally, the voting right is indivisible. Indeed, as an ancillary to the ownership interest, which is itself indivisible, the voting right cannot be split among several co-holders. Even in the case of joint ownership, the status of associate is recognized for each co-owner, and Article 1844 of the Civil Code provides, in this scenario, a methodology for participation in collective decisions. Similarly, this text allows for a contractual distribution of the voting right between the usufructuary and the bare owner, depending on the type of resolution.

Voting rights are generally exercised at general meetings. Case law considers that, in the absence of provisions in the statutes, the location of the general meetings of a limited liability company may be set, unless there is an abuse of rights by the person convening the meeting, at a place other than the registered office .

Cass. com., 11 October 2023, LawLex202300012324JBJ, D. 2023, 2024, note DONDERO; JCP E 2024, No 1021, note VICENTE; Gaz. Pal. 5 December 2023, 22, note BOERIO; LPA February 2024, 53, note FARGES; JCP E 2024, No 1100, note VALIERGUE; JCP E 2024, No 1143, note BUCHBERGER.

Cass. com., 31 March 2021, LawLex202200006138JBJ.

Company Law (en cours)

438. Content of the partner's voting rights.

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438. Content of the partner's voting rights.

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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