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Company Law (en cours)

Except in the event of death, the exit of a member from the Economic Interest Grouping (GIE) may result either from voluntary withdrawal or exclusion. Only the first case is expressly addressed by the texts.

1) Withdrawal

Pursuant to Article L. 251-9, para. 2, of the Commercial Code, any member of the grouping may withdraw under the conditions provided by the constitutive contract, provided that …

Exit from the Economic Interest Grouping

AZARIAN, Right of withdrawal of members of an Economic Interest Grouping, French Company Law 2016, form 11.

Except in the event of death, the exit of a member from the Economic Interest Grouping (GIE) may result either from voluntary withdrawal or exclusion. Only the first case is expressly addressed by the texts.

Pursuant to Article L. 251-9, para. 2, of the Commercial Code, any member of the grouping may withdraw under the conditions provided by the constitutive contract, provided that they have fulfilled their obligations. The withdrawal requires a clear and unequivocal expression of the member's intention to leave the EIG: the mere transfer of their business assets to the second co-ownership of the shopping center managed by the EIG does not constitute a withdrawal from it .

The conditions stipulated by the contract must not be excessively dissuasive. This is particularly the case when the financial conditions imposed on withdrawing members are such that they make it impossible to terminate memberships , even if the control of the proportionality of the withdrawal terms for a member of an Economic Interest Grouping (GIE), as provided by the constitutive contract or a clause of the internal regulations of this group, does not fall, by virtue of the adage specialia generalibus derogant, within the scope of Article L. 442-1, I, 2° of the Commercial Code, relating to significant imbalance in relations between professionals . The withdrawal must also not trigger retaliatory measures against the withdrawing member. The judge thus ensures that the withdrawal of a member from a GIE comprising all the merchants of a shopping center is not contingent upon their departure from the leased premises, when the GIE is not a party to the lease contract that reserves to the landlord alone the right to terminate it if an operator ceases to be a member of the GIE .

When the statutes of the Economic Interest Grouping (GIE) do not contain any provisions regulating the conditions for the withdrawal of its members, the latter may withdraw without delay, provided they have fulfilled their obligations . The GIE cannot use the non-payment of a very small amount of contributions as a pretext to indefinitely delay the effects of the withdrawal, thereby forcing the member to pay an increasingly higher amount . Conversely, it has been ruled that in the absence of any stipulation in the statutes or internal regulations providing for a possible notice period in the event of exercising the right of withdrawal , the grouping was justified in considering that the withdrawal was effective immediately, even if the withdrawing member had specified a desire to defer the effects of their decision .

Finally, even if carried out in accordance with the statutes, the withdrawal of a member from an Economic Interest Grouping (GIE) is not enforceable against third parties until it has been published . Therefore, the publication of the withdrawal of a member from a GIE after the date of cessation of payments does not allow the member to oppose the subsequent extension of the judicial liquidation procedure by the court .

Although no text in the chapter dedicated to the Economic Interest Grouping expressly provides for the possibility of excluding a member from the group, the significant contractual freedom granted to this structure allows the parties to address cases of exit, subject to compliance with certain guarantees.

Thus, when the information procedure provided by the internal regulations of the Economic Interest Grouping in the event of a change of control of one of the members has been respected, the resolution pronouncing the exclusion of that member does not correspond to a faithful execution of the parties' agreement and constitutes a manifestly unlawful disturbance that the summary judge must cease by ordering the suspension of its effects . Similarly, when the statutes provide that the exclusion must be voted on a proposal made to the general assembly by the advisory committee, a simple favorable opinion from the latter is not sufficient .

In the absence of contractual provisions, the cause for exclusion must present a sufficient degree of seriousness. This is the case when the takeover of a member by a competitor of the franchisor results in a risk of termination of the franchise agreement concluded by the Economic Interest Grouping (GIE), and consequently, the loss of the benefit of the renowned brand under which the group's products were marketed . Conversely, exclusion does not appear justified when the measure sanctions a member who has merely contested the regularity of the resolution on the allocation of charges set by the general assembly and requested the revision of the statutes and the appointment of a conciliator, as these actions do not indicate an absolute and definitive refusal to fulfill their obligations .

Furthermore, the exclusion of a member from the group must not infringe upon their freedom to practice their profession. This is not the case for exclusion pronounced following the withdrawal of a member from a professional union to which membership has been made mandatory by the group, when they can appeal to other organizations providing similar services .

Finally, the resolution that pronounces the exclusion of a member of the Economic Interest Grouping, taken without the vote being preceded by a debate on the facts attributed to them, is considered abusive .

CA Rouen, 24 June 2010, LawLex202300010276JBJ.

Cass. com., 24 September 2003, LawLex202300010269JBJ.

Cass. com., 29 January 2008, LawLex202300010118JBJ.

Cass. com., 21 November 1989, LawLex202300010117JBJ.

Cass. com., 10 May 1994, LawLex202300009866JBJ.

Cass. 1re civ., 23 March 1994, LawLex202300009865JBJ.

Cass. com., 7 July 1992, LawLex202300009867JBJ.

Cass. com., 11 May 2017, LawLex201700000866JBJ, JCP E, 2017, No 1304, obs. DISSAUX; Contrats Conc. Consom. 2017, No 147, obs. MATHEY; LD June 2017, 1, obs. ERESEO; JCP G, 2017, No 763, obs. BEHAR-TOUCHAIS; AJ Contrat, 2017, 337, obs. BUY and RODA; D. 2017, 1583, obs. DESHAYES and TADROS; LEDICO, September 2017, 1, obs. GRIMALDI; RDC 2018, 67, obs. BÉHAR-TOUCHAIS; JCP E 2018, No 1131, obs. MAINGUY; RJDA 2017, No 505.

Cass. com., 20 March 2012, LawLex202300010029JBJ.

Versailles, 3 July 2018, LawLex202300010084JBJ. - Cf. also Cass. com., 24 September 2003, LawLex202300010269JBJ, emphasizing that the balance of contributions to which a withdrawing member of an Economic Interest Grouping (GIE) may be held liable must be limited to the amounts absorbed by the annual expenses of the grouping.

Cf. in the event of a notice period stipulation, Cass. com., 24 September 2003, LawLex202300010269JBJ.

Cass. com., 3 April 2007, LawLex202300009847JBJ.

Cass. com., 3 July 1990, LawLex202300009863JBJ.

Cass. com., 6 March 1990, LawLex202300009864JBJ. - See also, conversely, Cass. com., 30 May 1985, LawLex202400000231JBJ.

Company Law (en cours)

645. Exit from the Economic Interest Grouping(1)

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

645. Exit from the Economic Interest Grouping(1)

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