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

Company Law (en cours)

The articles of association determine the rules regarding the convening and deliberations of the board of directors . However, case law admits that the rules for convening the board of directors may result from the provisions of its internal regulations .
When it has not met for more than two months, at least one-third of the members of the board of directors may request the chairman to convene it …

Board meetings

The articles of association determine the rules regarding the convening and deliberations of the board of directors . However, case law admits that the rules for convening the board of directors may result from the provisions of its internal regulations .

When it has not met for more than two months, at least one-third of the members of the board of directors may request the chairman to convene it with a specific agenda . The chief executive officer may also request the chairman to convene the board of directors with a specific agenda. Initially, case law considered that the resolution of the board of directors of a joint-stock company concerning a transfer of shares was void when a director had not attended due to being summoned late . It later relaxed its position by holding that a summons forty-eight hours before the meeting, when not contrary to the statutes, did not present a fraudulent character if the critic had been able to attend and was aware of the issues to be discussed . It now considers that the resolutions of a board of directors irregularly convened cannot be annulled, in the absence of a statutory clause providing for such a sanction, as long as such irregularity does not constitute a violation of a mandatory provision of Book II of the Commercial Code .

Article L. 2312-72 of the Labor Code further provides that in joint stock companies, two members of the employee delegation of the Social and Economic Committee, one belonging to the category of technical managers and supervisors, the other to the category of employees and workers, attend all meetings of the board of directors with an advisory vote. They are entitled to the same documents as those sent or given to the members of these bodies during their meetings.

The board of directors can only validly deliberate if at least half of its members are present. Any contrary clause is deemed unwritten. In accordance with Article L. 225-37 of the Commercial Code, as amended by the law of 13 June 2024 , directors who participate in the meeting by means of telecommunication allowing their identification and ensuring their effective participation are considered "present" for the calculation of the quorum and majority. The statutes may limit the nature of decisions that can be made during a meeting held under these conditions and provide a right of opposition for a determined number of directors. To facilitate the dematerialization of decision-making in companies, the 2024 law adds that, subject to providing that any board member can oppose the use of this method, the statutes may also provide that the board of directors' decisions or some of them may be made by written consultation of the directors, including electronically, according to the deadlines and procedures they define . Furthermore, the statutes may now allow voting by correspondence using a form whose content will be set by decree. When meetings are held physically, deliberations adopted by the board of directors after some directors have left the room are null .

Whatever the arrangements, the board of directors must actually meet. A board of directors cannot, under the guise of a management mandate entrusted to a director, divest itself of all its powers in favor of the latter . Unless the statutes provide for a stronger majority, decisions are made by a majority of the members present or represented . Unless otherwise provided by the statutes, the chairman of the meeting has the casting vote in the event of a tie.

Article R. 225-22 provides that the deliberations of the board of directors are recorded in minutes entered in a special register kept at the registered office and initialed either by a judge of the commercial court, a judge of the Judicial Court, the mayor of the municipality of the registered office, or a deputy mayor, in the ordinary form and without charge.

The minutes of the meeting indicate the names of the directors present, deemed present, excused, or absent. They record the presence or absence of persons summoned to the board meeting pursuant to a legal provision and the presence of any other person who attended all or part of the meeting. They also note the occurrence of any technical incident related to a videoconference or telecommunication means when it disrupted the proceedings of the meeting.

The minutes are signed by the chair of the meeting and at least one director. In the event the chair of the meeting is unable to sign, it is signed by at least two directors. When the signature is affixed by the newly elected chair during the meeting, the minutes are not tainted by any irregularity justifying their annulment, even if the meeting began under the chairmanship of the representative not renewed in their functions during the meeting . Furthermore, the failure of the chair of the management and administrative bodies or the chair of the meeting of these bodies to record the deliberations of these bodies in minutes is sanctioned by the nullity of the deliberations of said bodies. The action is open to any director, member of the executive board, or member of the supervisory board.

This action for invalidity may be exercised until the approval of the minutes at the second meeting of the board of directors, the management board, or the supervisory board following the one whose deliberations may be annulled .

Paris, 31 August 2006, LawLex202300007913JBJ.

CA Grenoble, 11 April 2024, LawLex202400003158JBJ.

Cass. com., 17 April 1980, LawLex202200005215JBJ, considering that the prior authorization of the board of directors for agreements entered into between the joint stock company and one of its directors does not apply to a commitment made by the board itself in a decision in which its chairman participated.

Cass. com., 7 May 1973, LawLex202200004790JBJ.

CA Paris, 30 June 2016, LawLex202300007912JBJ.

Paris, 27 June 2024, LawLex202400005014JBJ.

Law No 2024-537 of 13 June 2024 aimed at increasing the financing of undertakings and the attractiveness of France, OJ 14 June 2024.

Cf. the previous version of Article L. 225-37, which only allowed the use of written consultation for “decisions falling within the specific powers of the board of directors provided for in Article L. 225-24, in the last paragraph of Article L. 225-35, in the second paragraph of Article L. 225-36, and in I of Article L. 225-103, as well as decisions to transfer the registered office within the same department.”

Cass. com., 22 December 1969, LawLex202300007976JBJ.

Cass. com., 6 May 1996, LawLex202300007948JBJ.

Company Law (en cours)

503. Board meetings

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503. Board meetings

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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