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Company Law (en cours)

The appointment of members of the supervisory board is subject to conditions regarding the age and qualifications of the candidates and follows a specific procedure.

1) Age

Pursuant to Article L. 226-5 of the Commercial Code, the statutes of the SCA must provide for an age limit for serving as a member of the supervisory board, which applies either to all members of the supervisory board or to a …

Conditions

The appointment of members of the supervisory board is subject to conditions regarding the age and qualifications of the candidates and follows a specific procedure.

Pursuant to Article L. 226-5 of the Commercial Code, the statutes of the SCA must provide for an age limit for serving as a member of the supervisory board, which applies either to all members of the supervisory board or to a determined percentage of them. In the absence of an express provision in the statutes, the number of supervisory board members who reach the age of seventy cannot exceed one-third of the current supervisory board members. Any appointment made in violation of these provisions is void. Finally, in the absence of an express provision in the statutes providing for another procedure, when the statutory or legal age limit set for supervisory board members is exceeded, the oldest member of the supervisory board is deemed to have resigned automatically.

Only limited partners, shareholders of the SCA, can be members of the supervisory board . General partners cannot be appointed to these positions, under penalty of nullity of their appointment . Even when they are shareholders, general partners cannot participate in the designation of the board members . This incompatibility is related to the very mission of the supervisory board, which is to assume the permanent control of the company's management . Indeed, since the management of the SCA can only be carried out by one or more general partners, or a third party to the company, the appointment of a general partner as a member of the supervisory board would lead to a conflict of interest, as the latter would ultimately assume the permanent control of their own management.

The initial members of the supervisory board are appointed in the statutes . During the company's existence, it is the responsibility of the ordinary general meeting of partners to appoint, under the conditions set by the statutes, the new members . A request for the appointment of new members cannot aim to unnecessarily destabilize the company a few weeks before its annual meeting , nor pursue personal interests unrelated to ensuring better functioning of the supervisory board or greater impartiality of the latter towards management . Since shareholders who are general partners cannot participate in the appointment of the members of this board , any suspicion regarding the involvement of one of these partners in the nomination of board members may constitute a legitimate reason to order an expertise in futurum .

For an application, See CA Paris, 13 January 2006, LawLex202300005232JBJ.

Commercial Code, Art. L. 225-16, as referred by L. 226-1, para. 2.

Commercial Code, Art. L. 226-4, para. 1. - Similarly, Paris, 17 December 2020, LawLex202200007065JBJ, emphasizing that any change in the capital of an SCA, even significant, is not intended to be an occasion for the systematic and immediate questioning of the composition of the supervisory board.

Paris, 17 December 2020, LawLex202200007065JBJ.

T. com. Paris, 14 October 2020, LawLex202200007072JBJ.

See for an illustration, Paris, 12 February 2021, LawLex202300005160JBJ, holding that an expertise in futurum is based on a legitimate reason when a limited partner shareholder changes the direction of their vote regarding an appointment to the supervisory board of the SCA after being approached by a general partner, while the latter cannot legally participate in the appointment of board members.

Company Law (en cours)

553. Conditions

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553. Conditions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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