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

Company Law (en cours)

Pursuant to Article L. 226-2, para. 3, of the Commercial Code, the manager of an SCA, whether or not a partner, must be removed under the conditions provided by the statutes. To prevent the manager from being made irremovable by stipulations requiring a unanimous decision of the general partners, the text does not exclude the possibility of removal by the Commercial Court for "legitimate cause," a …

Dismissal pronounced by the company or by the court

Pursuant to Article L. 226-2, para. 3, of the Commercial Code, the manager of an SCA, whether or not a partner, must be removed under the conditions provided by the statutes. To prevent the manager from being made irremovable by stipulations requiring a unanimous decision of the general partners, the text does not exclude the possibility of removal by the Commercial Court for "legitimate cause," at the request of any partner or the company. Any contrary clause is even deemed unlawful.

The statutory freedom granted to the partners of the SCA can lead to a true lock-in of the SCA's management. Indeed, the decision to dismiss can be subject to the approval of the general partners, who often hold this position along with that of managers . When the statutes do not require the decision to be justified, the manager must be considered as dismissible ad nutum . However, the measure must be implemented in compliance with the principle of adversarial proceedings and the duty of loyalty, without abruptness. The dismissal of an SCA manager should be considered abusive when the manager was not previously informed of the dismissal plan concerning him and was not able to present his observations . The fact that he was not informed of the reasons for the decision prior to the meeting does not make the termination abusive when the statutes provide for dismissal without reasons and he was able to present his observations before the competent body to terminate his duties, three weeks after his summons . The dismissal of an SCA manager should also not be accompanied by vexatious circumstances. This is the case when he had to abandon all instruments related to his duties and leave the premises immediately after being informed of his dismissal, under the guidance, if not the supervision, of another member of the management board, in the presence of the employees .

The manager of an SCA can also be dismissed by the commercial court for just cause, at the request of any partner or the company. A just cause justifying the judicial dismissal of an SCA manager is understood as a seriously wrongful behavior harmful to the company's interests, or that paralyzes the corporate life, and not merely a simple difference of opinion, particularly regarding the recovery strategy to be implemented . However, a just cause is constituted if the managing partner has made a decision alone that is contrary to the corporate purpose and clearly exceeds their powers . The admissibility of the action, however, requires that on the day the judge rules, the company is still represented by the manager .

See, for a counterexample, Paris, 14 September 2017, LawLex202300004970JBJ, considering that the removal of a manager of an SCA must be deemed in accordance with the statutes which provide that it can only occur by unanimous decision of all general partners, as long as it has been notified to him by the sole general partner.

Paris, 20 February 2007, LawLex202300004973JBJ; 14 September 2017, LawLex202300004970JBJ.

Paris, 20 February 2007, LawLex202300004973JBJ.

Cass. com., 23 October 2019, LawLex202200006209JBJ, and, on remand, CA Paris, 13 April 2021, LawLex202300004968JBJ.

Paris, 20 February 2007, LawLex202300004973JBJ. - See a contrario, Paris, 14 September 2017, LawLex202300004970JBJ, previously cited, holding that the dismissal does not have a sudden or vexatious nature due to the almost immediate deprivation of his telephone line, access to his professional email, and premises, as he had misappropriated documents belonging to the company upon notification of the decision.

CA Grenoble, 6 January 2011, LawLex202200006984JBJ.

CA Douai, 18 November 2008, LawLex202300004876JBJ.

CA Douai, 6 December 2018, LawLex202300004530JBJ, for a company undergoing liquidation.

Company Law (en cours)

547. Dismissal pronounced by the company or by the court

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547. Dismissal pronounced by the company or by the court

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise