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

Company Law (en cours)

The shareholders of an SAS, as members of the company, have the right to participate in collective decisions . Since the statutes of an SAS determine the decisions that must be made collectively by the partners in the forms and conditions they provide , they may stipulate that decisions will be made either in a meeting or outside a meeting.

1) General meetings

Contractual freedom holds an import …

Consultation in assembly or outside assembly

The shareholders of an SAS, as members of the company, have the right to participate in collective decisions . Since the statutes of an SAS determine the decisions that must be made collectively by the partners in the forms and conditions they provide , they may stipulate that decisions will be made either in a meeting or outside a meeting.

Contractual freedom holds an important place in the SAS. When the statutes provide for the convening of a meeting, ordinary or extraordinary, for making certain decisions, they freely determine the rules for calling the shareholders, particularly the designation of the person responsible for this task, the form, content, and timing of the notice.

Regarding the author of the notice, the statutes may provide that the president of the SAS alone has the authority to convene a meeting. In this case, if requested by a partner, the president is obliged to convene a general meeting without being able to judge the appropriateness of the meeting , even if it concerns their own dismissal . The convening of a general meeting by partners, when the statutes of the SAS reserve this prerogative to the president, is irregular .

In joint stock companies, Article L. 225-103 of the Commercial Code, in its first paragraph, provides that the meeting may also be convened by the statutory auditors or by a court-appointed representative, at the request of any interested party in case of emergency, or of one or more shareholders holding at least 5% of the share capital , or of a shareholders' association meeting the conditions set out in Article L. 225-120. These provisions are only applicable to the SAS if the statutes expressly provide for them, as the third paragraph of Article L. 227-1 of the Commercial Code makes them inapplicable to these companies. In such a case, the request for the appointment of a judicial representative to convene a general meeting, made by a certain number of SAS shareholders holding 5% of the capital, is admissible, without the exercise of this right being subject to the finding of a deficiency of the president or to a prior formal notice .

For the notice of shareholders' meetings to be valid, it must meet the formal requirements set out in the articles of association. These may stipulate that shareholders will receive their notices by ordinary mail, registered mail with acknowledgment of receipt, by posting, by email, orally, by any written communication method such as fax, or electronically. Notices must be sent to identifiable shareholders at their respective addresses. To this end, transferees of SAS shares cannot demand the convening of a general meeting until they have acquired the status of shareholders by the registration of their shares in the individual account of the buyers or in the company's register of registered shares . The court considers that a person who was not registered in the shareholders' register on the dates when the general meetings were held, to which they were not invited, is not entitled to seek their annulment . Similarly, sending a notice of meeting, within the appropriate timeframe, to only those shareholders whose current address is known is valid, and the company cannot be faulted for not sending a notice to the last known address of those who failed to report their change of address .

The articles of association must also specify the content of the notice of meeting. In practice, this notice indicates the agenda to inform the partners of the issues to be discussed at the meeting, as well as the date and place of the meeting, which does not necessarily have to be the registered office . The notice to shareholders is also accompanied by documents enabling the partners to make informed decisions at the meeting, such as the annual accounts and, where applicable, consolidated accounts for meetings approving the accounts, reports from the chairman, the chief executive officer, the board of directors or the management board, as the case may be, and the statutory auditors, if any, the text and explanatory statement of the proposed resolutions, proxy forms... Failure to comply with the forms of convening the general meeting is characterized when the letter sent to shareholders contains only the agenda and proxy forms, which only allow approval of the resolutions but not their rejection, without including the text of these resolutions or any report or document enabling them to make informed decisions . Similarly, the notice to partners of a general meeting concerning the exclusion of a director and partner is not regular when the documents enabling the partners to make informed decisions have not been sent to them and they have not been informed where they could be consulted . However, the meeting that pronounced the exclusion of a partner on the basis of a grievance (such as collaboration with a competitor) cannot be annulled, as long as the articles of association did not require the notice of meeting to specify the factual elements, such as the identity of the competing company or the nature of the activity carried out . The notice of shareholders' meetings must be given within the time limits set by the articles of association. Even if the articles of association of the SAS provide that a general meeting can be convened within an hour, it is essential to ensure the material possibility for the partners to be present or represented . Furthermore, the request to obtain an extension of the notice period for a general meeting of the SAS must be filed before the expiration of the legal or statutory period set since the close of the financial year .

The sanction for non-compliance with the rules regarding the convening of SAS meetings must be provided for in the company's statutes. In the absence of specifics, the sanction cannot be the invalidity of the deliberations . Indeed, in French Company Law, the legislator favors regularization over invalidity, even providing in Articles L. 235-4 and following of the Commercial Code several modes of regularization, including after the introduction of an action for invalidity, as well as in Articles 1844-12 and following of the Civil Code. Consequently, the invalidity of a general meeting held despite a decision to adjourn, without notice or agenda, can be regularized by a subsequent meeting . However, when the sanction of invalidity is expressly stipulated, the convening of a general meeting by a shareholder of the SAS, while the president is still in office, results in the invalidity of the meeting . The same applies to the irregular convening of a general meeting by the statutory auditor  and to the holding of a general meeting of SAS in violation of an order that had adjourned it pending the resolution of a dispute with a shareholder . Moreover, unlike the rules applicable to limited liability companies and joint-stock companies , an action for invalidity of a general meeting of SAS irregularly convened is admissible even if all the partners were present or represented . Furthermore, an action for invalidity of an ordinary general meeting of SAS, brought by a partner for violation of statutory provisions relating to the formal conditions and methods of convening meetings, is not conditioned on a negative vote by the partner against the contested deliberations, nor by a request for the appointment of a provisional administrator . However, the absence of convening the heirs of a deceased partner does not invalidate a general meeting as long as, having not requested their approval under the conditions provided in the statutes, they have not acquired the status of partners .

The statutes of an SAS may provide for decision-making through written consultation, the modalities of which, including the form and response time of the shareholders, must be specified. Regarding a collective decision, every shareholder has the right to participate in the written consultations .

As in SARLs  and civil companies , the statutes of an SAS may stipulate that the decisions of the partners can result from the consent of all partners expressed in a private agreement.

When a SAS has only one shareholder, that shareholder exercises the powers granted to the partners regarding collective decision-making. Thus, in such a scenario, the responsibilities of ordinary and extraordinary general meetings concerning capital increase, amortization, or reduction, merger, spin-off, dissolution, transformation into a company of another form, appointment of statutory auditors, annual accounts, and profits are, under the conditions provided by the statutes, exercised by the sole shareholder . Similarly, in accordance with the third paragraph of Article L. 227-9, regarding the approval of accounts, the management report, annual accounts, and, if applicable, consolidated accounts are finalized by the president. The sole shareholder approves the accounts, after the report of the statutory auditor if there is one, within six months from the end of the fiscal year, without being able to delegate their powers. Their decisions are recorded in a register. When the sole shareholder, a natural person, personally assumes the presidency of the company, the filing, within the same period, at the commercial and companies register of the inventory and duly signed annual accounts constitutes approval of the accounts without the need to enter in the register the receipt issued by the clerk of the commercial court.

Saint-Denis de la Réunion, 13 October 2015, LawLex202300010128JBJ, emphasizing that in SAS, to which the provisions of Article L. 225-103, para. V, of the Commercial Code do not apply, the general meeting may be held in a place other than the registered office.

CA Aix-en-Provence, 5 November 2020, LawLex202300008345JBJ.

CA Douai, 6 June 2008, LawLex202300009032JBJ.

Cass. com., 12 February 2025, LawLex202500001268JBJ, JCP E 2025, No 1164.

Paris, 26 May 2016, LawLex202300007843JBJ.

CA Versailles, 23 November 2017, LawLex202300008351JBJ.

CA Aix-en-Provence, 17 December 2020, LawLex202300007809JBJ.

CA Montpellier, 14 March 2017, LawLex202300008291JBJ.

CA Montpellier, 23 November 2021, LawLex202300007838JBJ.

CA Aix-en-Provence, 23 September 2021, LawLex202300007254JBJ, previously cited.

CA Poitiers, 20 October 2020, LawLex202300007369JBJ.

CA Bordeaux, 10 January 2023, LawLex202300009695JBJ.

Commercial Code, Art. L. 223-27, concerning SARLs and L. 225-104, concerning SAs.

CA Aix-en-Provence, 17 December 2020, LawLex202300007809JBJ, previously cited.

Saint-Denis de la Réunion, 13 October 2015, LawLex202300010128JBJ.

Commercial Code, Art. L. 223-27, para. 1.

CA Caen, 29 September 2016, LawLex202300007304JBJ.

See, for an illustration, CA Aix-en-Provence, 29 March 2018, LawLex202300007290JBJ.

CA Aix-en-Provence, 2nd ch., 24 November 2016, LawLex202300008794JBJ; contra, CA Aix-en-Provence, 23 September 2021, LawLex202300007254JBJ, holding that notwithstanding the request of a majority shareholder of an SAS, the statutory auditor cannot convene a general meeting of shareholders until after the president has refused to comply.

Cass. com., 18 September 2024, LawLex202400006513JBJ.

CA Paris, 10 November 2015, LawLex202300010312JBJ.

See by analogy, Cass. com., 13 January 1998, LawLex202200005863JBJ, concerning a SA.

Company Law (en cours)

587. Consultation in assembly or outside assembly

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

587. Consultation in assembly or outside assembly

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise