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Company Law (en cours)

The statutory auditor is a key body in the company's control. Its status, identical regardless of the company concerned, is set out in Articles L. 821-1 et seq. of the Commercial Code. In accordance with Article L. 821-41 of the Commercial Code, companies required to publish consolidated accounts must appoint at least two statutory auditors to carry out the task of certifying the accounts, and tho …

Crossing of thresholds

The statutory auditor is a key body in the company's control. Its status, identical regardless of the company concerned, is set out in Articles L. 821-1 et seq. of the Commercial Code. In accordance with Article L. 821-41 of the Commercial Code, companies required to publish consolidated accounts must appoint at least two statutory auditors to carry out the task of certifying the accounts, and those required to publish consolidated sustainability information may appoint several statutory auditors or a statutory auditor and an independent third-party body to carry out the task of certifying this information. Specifically regarding simplified joint-stock companies, the conditions for its appointment are set out in Article L. 227-9-1 of the Commercial Code, which provides that SAS exceeding, at the close of the fiscal year , two of the following criteria, must appoint at least one statutory auditor: a total balance sheet of 5 million euros, a net turnover of 10 million euros, and an average number of 50 employees .

The term of office for the statutory auditor for the performance of account certification and sustainability information missions must extend over six fiscal years, and their duties expire after the deliberation of the general meeting or the competent body that rules on the accounts of the sixth fiscal year . The fact that an SAS has reached the legal thresholds for appointing a statutory auditor during a fiscal year and then falls below them in the following year does not exempt it from making this appointment for a six-year term . However, the obligation to appoint ceases as soon as the company does not exceed the figures set for two of these three criteria during the two fiscal years preceding the expiration of the statutory auditor's term . Furthermore, based on the fifth paragraph of Article L. 227-9-1 of the Commercial Code, SASs are required to appoint a statutory auditor for a three-year term if one or more partners representing at least one-third of the capital make a motivated request to the company. Even without reaching the thresholds set by the legislator, the appointment of a statutory auditor can be requested in court by one or more partners representing at least one-tenth of the capital . In this case, the appointment is made by a judgment of the president of the commercial court ruling according to the expedited procedure on the merits . Similarly, a statutory auditor may be appointed on an ad hoc basis, pursuant to the second paragraph of Article L. 225-146 of the Commercial Code , in the event of a capital increase. Finally, when a statutory auditor is appointed by an SAS purely voluntarily, the company may decide to limit the term of office to three fiscal years .

Whether it is mandatory or optional, the appointment of the statutory auditor takes place under the conditions provided by the articles of association and must be carried out collectively by the partners . In accordance with these, the appointment of the statutory auditor may be classified as an ordinary decision, which can be made by a simple majority of the partners present or represented, within the framework of a written consultation .

The absence of appointment of a statutory auditor when the SAS meets the conditions of Article L. 227-9-1 results in the nullity of meetings held without their presence . Furthermore, the manager who does not initiate the appointment of the statutory auditor when the company exceeds two of the criteria set by the legislator is subject to a penalty of two years' imprisonment and a fine of 30,000 euros . The same applies to the manager required to have their sustainability information certified who does not initiate the appointment of a statutory auditor or who does not invite the statutory auditor to any general meeting .

Bordeaux, 15 March 2021, LawLex202300011389JBJ, specifying that a SAS is required to appoint a statutory auditor from the fiscal year following the one during which the thresholds of Article D. 227-1 of the Commercial Code are reached.

Commercial Code, Art. L. 227-9-1, para. 2, D. 227-1, para. 1 and D. 221-5, para. 1, as amended by Decree No 2024-152 of 28 February 2024 concerning the adjustment of size criteria for companies and groups of companies.

T. com. Paris, 24 May 2019, LawLex202300011420JBJ.

Commercial Code, Art. L. 821-44, para. 1.

CA Bordeaux, 15 March 2021, LawLex202300011389JBJ.

Commercial Code, Art. L. 227-9-1, para. 3; L. 821-47; - See for an illustration, CA Bordeaux, 15 March 2021, LawLex202300011389JBJ, aforementioned.

Under which "The subscriptions and payments are recorded by a certificate from the depositary issued at the time of the deposit of funds, upon presentation of the subscription forms. The release of shares by offsetting liquid and payable claims against the company is recorded by a certificate from the notary or the statutory auditor of the company, or, if none has been appointed, by a statutory auditor appointed for this purpose according to the procedures provided for in Articles L. 225-228 and L. 22-10-66. This certificate serves as the depositary's certificate."

Commercial Code, Art. L. 227-9, para. 2, by reference to L. 227-9-1, para. 1.

Company Law (en cours)

600. Crossing of thresholds

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600. Crossing of thresholds

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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