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

Company Law (en cours)

The status of members of the SARL grants partners the right to participate in the collective life of the company and, in particular, to attend meetings convened for major corporate decisions. This right has two aspects: the right to be summoned and the right to summon the meeting themselves.
1) Right to be convened
Pursuant to Article L. 223-27, para. 2 of the Commercial Code, the partners are con …

Meeting procedures for assemblies.

The status of members of the SARL grants partners the right to participate in the collective life of the company and, in particular, to attend meetings convened for major corporate decisions. This right has two aspects: the right to be summoned and the right to summon the meeting themselves.

Pursuant to Article L. 223-27, para. 2 of the Commercial Code, the partners are convened to meetings in the forms and timeframes provided for in Articles R. 223-20 et seq. The notice is given by the manager, who is formally responsible for proving the existence and regularity of the notice to a partner for the general meeting . In the absence of a manager, the notice is given by the statutory auditor, if there is one. Case law holds that the absence of notice to a partner for the general meeting of an SARL does not automatically lead to its invalidity, provided that the irregularity did not stem from an intent to harm and that the resolutions were in line with the corporate interest . Furthermore, only the partners are entitled to invoke the violation of the provisions governing their notice to the general meetings of an SARL, as well as to contest the validity of the powers of the person who represented a partner at these meetings .

Article L. 223-27, para. 4, provides that one or more partners holding half of the shares or holding, if they represent at least one-tenth of the partners, one-tenth of the shares, may request the convening of a meeting. This is not exactly a right to convene, as the partners cannot directly convene the meeting , but can only request the manager or, if applicable, the statutory auditor to do so. In case of their failure or refusal, para. 7 indicates that any partner may request the court to appoint a representative responsible for convening the meeting and setting its agenda. The request must be in line with the corporate interest, which can be understood as a legitimate purpose of information and the partner's interest in the company's future . When the formal conditions of the request are met, the judge is obliged to grant the request of the partner of an SARL to appoint a representative responsible for convening the general meeting to appoint a new manager, without being able to assess the appropriateness of such a request . Similarly, the partners of an SARL have the right to take legal action to obtain the appointment of a representative responsible for convening the general meeting called to approve the accounts when it has not been held within six months from the end of the fiscal year, without the need to assess their possible inertia before this request . However, such a request cannot be a pretext to allow the representative to perform a mission as a provisional administrator . Thus, the request of the partner of an SARL aiming for the appointment of an ad hoc representative not to convene a general meeting but to "rule on the accounts and the allocation of results" exceeds the terms of Article L. 223-27 of the Commercial Code . Similarly, the judge handling a request for the appointment of an ad hoc representative to convene the general meeting of an SARL cannot assign this representative a mission to control the company's management and delegate to them the assessment of the appropriateness of proceeding with this convening . Finally, it is incumbent upon the manager of an SARL who challenges the appointment of a representative to convene the general meeting to prove that a meeting has indeed taken place by justifying the convening of the partners by registered letter or the communication of corporate documents .

It is only in the event that the company is without a manager or if the sole manager is placed under guardianship that the partner regains the right to directly convene a meeting. Indeed, para. 8 of Article L. 223-27 provides that in such circumstances, the statutory auditor or any partner convenes the meeting of partners solely for the purpose of proceeding, if necessary, with the dismissal of the sole manager and, in all cases, with the appointment of one or more managers.

The manager who fails to comply with the obligation to convene the partners incurs liability. When the administrative management of meetings is delegated to an accounting firm, it also faces potential contractual liability if it fails in its duty to alert and warn about the non-compliance with legal obligations incumbent upon management regarding the convening of general meetings .

The non-summoned partner may, in principle, request the nullity of the meeting, but Article L. 223-27 of the Commercial Code provides in its last paragraph that annulment is only an option for the judge . Furthermore, the conditions for admitting such a request are assessed very strictly by case law. In fact, the Court of Cassation holds that the mere failure to summon a partner does not constitute an impossibility to act that could delay the starting point of the three-year limitation period for the action for nullity of corporate resolutions . The partner must demonstrate that this irregularity deprived them of their right to participate in the meeting and was likely to influence the outcome of the decision-making process , that it caused them harm, or that it stemmed from an intent to harm them and that the decisions were not in accordance with the corporate interest . Moreover, a resolution of the partners' meeting is not subject to nullity solely because the manager no longer had the authority to summon due to the pronouncement of judicial liquidation, as long as, despite this irregularity, all partners were present . Even in the event of the absence of some partners or representation of some of them, the ratification of a resolution by way of discharge given to the managers can prevent the annulment of the general meeting of an SARL for irregular summons .

Cass. com., 10 February 2021, LawLex202300003986JBJ.

CA Paris, 5 January 2016, LawLex202200009551JBJ.

Cass. com., 11 February 1992, LawLex202300004159JBJ.

Cass. com., 8 March 2016, LawLex202300004153JBJ.

For a reminder of the optional nature of invalidity, 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., 26 September 2018, LawLex202200009475JBJ.

Cass. com., 29 May 2024, LawLex202400003926JBJ, RJDA 2024, No 458.

See a contrario, CA Paris, 5 January 2016, LawLex202200009551JBJ.

Cass. com., 17 July 2001, LawLex202300003046JBJ.

Cass. com., 5 December 2000, LawLex202300003987JBJ.

Cass. com., 17 December 2002, LawLex202200006211JBJ, rejecting the challenges raised by the manager dismissed during a meeting he claimed was irregularly convened.

Cass. com., 4 March 1974, LawLex202300004162JBJ, requiring the partners of an SARL to invite the manager or, failing that, the statutory auditor to convene the general meeting or to request the appointment of a representative by the court for this purpose; Aix-en-Provence, 23 June 2011, LawLex202300011945JBJ, considering that a meeting convened directly by the majority partner to dismiss the manager and replace him is irregular because it disregards the provisions requiring that the convocation be issued by the manager, the statutory auditor, if applicable, or a court-appointed representative.

Cass. com., 19 June 1990, LawLex202200010134JBJ; D. 1992, 179, note BOUSQUET and BUGEJA; Rev. sociétés 1990, 621, note SORTAIS; RTD com. 1991, 58, 70 and 401, note CHAMPAUD.

Cass. com., 6 February 2019, LawLex202200006613JBJ; Rev. sociétés 2019, 457, obs. LECOURT; 15 December 2021, LawLex202200010130JBJ; Rev. sociétés 2022, 159, obs. VIANDIER; Procédures December 2022, chon. 6, No 7, obs. BOILLOT, considering that the judge seized with the request of a majority shareholder of an SARL for the appointment of a representative responsible for convening a general meeting with the agenda of dismissing the manager, must grant it if this request is in line with the corporate interest, without being able to assess the reasons for the dismissal.

Cass. com., 24 October 2018, LawLex202200006538JBJ.

Aix-en-Provence, 25 July 2019, LawLex202300004169JBJ, considering that a member of an SARL cannot, under the guise of a request for the appointment of an ad hoc representative tasked with convening a general meeting, request that they actually perform a mission as a provisional administrator, unless it is demonstrated that the normal functioning of the company is compromised.

CA Toulouse, 15 February 2022, LawLex202300004186JBJ.

Paris, 6 November 2014, LawLex202300004165JBJ.

Company Law (en cours)

443. Meeting procedures for assemblies.

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Les notions juridiques connexes

443. Meeting procedures for assemblies.

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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