SAS, extrastatutory acts, statutory provisions, managing director revocation, Commercial Code, L 227-1, L 227-5, company law, French law
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Abstract
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Abstract
Court ruling on whether extrastatutory acts can derogate from SAS statutes regarding managing director revocation.
Extract
[...] Extrastatutory acts can complement the statutes : 2. Extrastatutory acts cannot derogate from the statutes : - Derogation implies a a manifest contradiction between the statutory norm and that of an extrastatutory act. ? Highlight the importance of a precise drafting of the statutes + reaffirm the primacy of the statutes. Course Notes Contribution: in SAS, revocation can be free or regulated (the principle of ab nutum is not of public order), but the statutes are king. In the SA: President ab nutum, and president just cause We must still respect the principle of contradiction. [...]
[...] If extrastatutory acts can complement the statutes, they cannot derogate from them. In this case, the appeals court correctly concluded that the letter-agreement of 13 May 2011, providing for a compensation in case of revocation without just cause, could not derogate from the provisions of the statutes of the SAS, which stipulated that the managing director could be revoked without compensation. The appeal was therefore rejected. Meaning / Value / Scope (doctrine of Arnaud Reygrobellet) : ? Manner in which the statutes and extrastatutory acts can interact. 1. [...]
[...] Means : The Managing Director" takes issue with the judgment dismissing his claim, arguing that, even if the articles of association of a SAS provide that the managing director may be dismissed ad nutum by the sole shareholder, the latter may derogate from this rule by an extrastatutory decision, in this case, a letter specifying that in the event of dismissal without just cause, the managing director will be entitled to compensation. The appellate court would therefore have disregarded the extrastatutory commitment made by the sole shareholder, which constitutes a violation of the articles L. 227-1 and L. 227-5 of the Commercial Code, as well as from article 1134 of the Civil Code (formerly article 1103). Question of law : The extrastatutory acts of a simplified joint-stock company can they derogate from the statutory provisions ( [...]
