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

Company Law (en cours)

Participation in collective decisions is an essential prerogative of the associate, enshrined by Article 1844 of the Civil Code, which does not allow any derogation, even statutory, from this right. The statutes determine the body responsible for convening meetings, although in most cases, this prerogative belongs to the manager. Pursuant to Article 40 of Decree No 78-704 of 3 July 1978, associate …

Forms and sanctions

Participation in collective decisions is an essential prerogative of the associate, enshrined by Article 1844 of the Civil Code, which does not allow any derogation, even statutory, from this right. The statutes determine the body responsible for convening meetings, although in most cases, this prerogative belongs to the manager. Pursuant to Article 40 of Decree No 78-704 of 3 July 1978, associates are convened at least fifteen days before the meeting by registered letter . The fifteen-day notice period before the meeting runs from the date of dispatch of the registered letter . The convening of associates at the last known address appearing on the company's Kbis extract is regular, even if they have changed address, if they have not informed the manager . The notice of meeting indicates the agenda so that the content and scope of the questions listed appear clearly, without the need to refer to other documents. From the time of the notice, the text of the proposed resolutions and any documents necessary for the information of the associates are made available at the registered office, where they can be reviewed or copied. Associates may also request that these documents be sent to them either by regular mail or, at their expense, by registered letter .

A non-managing partner may also, at any time, by registered letter, request the manager to call a meeting of the partners on a specific issue . If the manager accedes to the request, he or she shall, in accordance with the articles of association, convene the meeting of the partners or consult them in writing. Unless the issue raised concerns the manager's delay in fulfilling one of his or her obligations, the request is considered satisfied when the manager agrees to include the issue on the agenda of the next meeting or written consultation. If the manager opposes the request or remains silent, the requesting partner may, after a period of one month from the date of the request, petition the president of the Judicial Court, under the expedited procedure on the merits, for the appointment of a representative to call the meeting of the partners. Such a request may only be made by a partner: this is not the case for the usufructuary of shares, especially when he or she does not demonstrate that the request would have a direct impact on his or her right of enjoyment . The partner exercising this option must establish that he or she has previously submitted a request to the manager to convene the meeting . When acting with a view to the possible replacement of the manager, he or she does not have to summon, in addition to the company, the partners . However, the judge hearing such a request must ensure that it is in accordance with the corporate interest .

The failure to convene a partner to the general meeting constitutes a cause for nullity of the deliberations , which can be invoked by another partner, even if they were duly convened . However, the sale authorized by the deliberations in question cannot itself be annulled if the purchaser is in good faith . The nullity of the deliberation is not incurred when the convening is merely irregular . Similarly, a partner in a non-trading private company cannot seek the annulment of general meetings held in their absence due to irregularity of their convening, as long as their decision not to participate in collective decisions did not cause them any grievance . Furthermore, a partner who actually participated in the general meeting cannot rely on their failure to be convened to request the annulment of a deliberation . Finally, a partner who was not convened in accordance with the statutes to the general meeting, but who, the day after it was held, sent an email to the notary confirming, in their capacity as a partner, their agreement to the decision made by the meeting, does not justify a grievance, especially when their shareholding would not have allowed them to oppose the vote of the contentious resolution by the majority partner .

See CA Douai, 24 September 2020, LawLex202300003319JBJ, considering that the articles of association of a civil company may provide for the convening of partners to the general meeting by simple letter, as neither Article 1844 of the Civil Code nor Article 13 of the law of 6 January 1986, relating to companies for the allocation of buildings for shared enjoyment, require that the notices be sent in the form of registered mail.

Cass. mixte, 16 December 2005, LawLex202300003404JBJ.

Cass. 3e civ., 21 October 1998, LawLex202200007896JBJ.

Cass. 3e civ., 21 October 1998, LawLex202300009790JBJ.

Cass. 3e civ., 11 October 2000, LawLex202300009789JBJ; 19 July 2000, LawLex202200005986JBJ.

Cass. com., 21 June 2011, LawLex202300002204JBJ.

Cass. com., 8 February 2005, LawLex202200007897JBJ.

Paris, 14 May 2024, LawLex202400003667JBJ.

Cass. 3e civ., 25 June 2020, LawLex202200007894JBJ.

Decree No 78-704 of 3 July 1978, Art. 40.

Decree No 78-704 of 3 July 1978, Art. 39, para. 1.

Cass. 3e civ., 16 February 2022, LawLex202200006665JBJ, D. 2022, 440, obs. JULLIAN; RJ com. 2022/4, 390, obs. LE GROG; Rev. sociétés 2022, 280, obs. GODON; RTD com. 2022, 320, obs. LECOURT, approving Bordeaux, 11 February 2020, LawLex202200011453JBJ. - See also, a contrario, Cass. com., 1 December 2021, LawLex202200006664JBJ.

CA Bordeaux, 11 February 2020, LawLex202200011453JBJ.

Cass. com., 20 December 2023, LawLex202400000126JBJ.

Aix-en-Provence, 1 February 2024, LawLex202400001728JBJ, considering that a general meeting must be annulled when the minutes of the meeting, to which no attendance sheet is attached, bear only the signature of the manager, which does not allow for establishing that the other partners were present, the only fact capable of covering their absence of notice.

Company Law (en cours)

665. Forms and sanctions

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665. Forms and sanctions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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