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

Company Law (en cours)

Shareholders of the SA have a voting right, which constitutes one of the manifestations of their participation in the political life of the company. The fact that a shareholder is placed under guardianship does not prevent them from exercising their voting right, in the absence of a provision in the judgment establishing the scope of protection limiting their legal capacity on this attribute . Sim …

Right to participate in collective decisions.

VIANDIER, Observations on voting agreements, JCP E 1986, 15405; MERCADAL, In favor of the validity of voting agreements between shareholders, RJDA 1992, 727; DAIGRE, Is the right to vote still an essential attribute of the associate?, JCP G 1996, Act. 26.

Shareholders of the SA have a voting right, which constitutes one of the manifestations of their participation in the political life of the company. The fact that a shareholder is placed under guardianship does not prevent them from exercising their voting right, in the absence of a provision in the judgment establishing the scope of protection limiting their legal capacity on this attribute . Similarly, one whose share transfer has subsequently been resolved becomes a shareholder again and regains their right to participate in general meetings . The associate must exercise their voting right freely, in the interest of the company, without abusing it .

In accordance with Article L. 225-122 of the Commercial Code, the voting right attached to capital or enjoyment shares is proportional to the portion they represent. Each share entitles the holder to at least one vote. Any contrary clause is deemed unwritten. However, Article L. 225-125 provides a qualification to this principle, allowing the statutes to limit the number of votes each shareholder has in meetings, provided that this limitation is imposed on all shares, without distinction of category other than non-voting preferred dividend shares. The voting right may also be subject to division or dismemberment, which typically occurs between a usufructuary and a bare owner.

On the other hand, the right to vote cannot be removed under any circumstances. Indeed, jurisprudence has long considered that the right to vote is intrinsically linked to the status of shareholder, so that statutes cannot provide for its reduction or removal . Only the legislator has the power to remove the right to vote. French law has indeed provided for a number of scenarios in which the right to vote may be removed or suspended as a sanction. Thus, Article L. 228-29 of the Commercial Code provides that after a certain period, a shareholder who has not made the required payments related to the holding of their shares may be deprived of the right to vote. Article L. 233-30 also deprives of the right to vote a shareholder who does not comply with the legislation on reciprocal shareholdings. The same fate is reserved for a shareholder who fails to declare a crossing of a threshold in a listed company, in accordance with the provisions of Article L. 233-14 .

Finally, Article L. 235-2-1 of the Commercial Code provides that resolutions adopted in violation of the provisions governing the voting rights attached to shares may be annulled.

Paris, 2 July 2002, LawLex202300013802JBJ.

Paris, 5 December 2023, LawLex202300014624JBJ.

Cass. com., 17 March 2009, LawLex202200004742JBJ, holding that the conditions of majority abuse are not established solely by the fact that the compensation granted to the chairman and CEO of a SA exceeds the amount of profits if it is not proven that they are contrary to the company's interests and have the sole purpose of favoring the majority members to the detriment of the minority.

Cass., 7 April 1932, LawLex202200009008JBJ.

Cass. com., 27 June 2018, LawLex202300003614JBJ; CA Paris, 10 June 2009, LawLex202300009160JBJ; Cass. com., 10 May 2006, LawLex202300003780JBJ, BJS 2006, 1142, obs. DAIGRE; RTD com. 2006, 623, obs. STORCK. - Cf. Cass. com., 15 May 2012, LawLex202300003777JBJ. - See also, confirming the constitutionality of Article L. 233-14, Cons. const., 28 February 2014, LawLex202300009161JBJ.

Company Law (en cours)

466. Right to participate in collective decisions.(1)

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Les notions juridiques connexes

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