Abuse of majority, company law, unanimity, extra-statutory acts, SAS, simplified joint-stock company, revocation of general manager, Court of Cassation, commercial law
Reader
Abstract
Extract
of 3
Abstract
Court of Cassation ruling on abuse of majority and unanimity in company decision-making, highlighting the limits of extra-statutory acts.
Extract
[...] Abuse of majority Harm to the minority + Contrary to the social interest Scope : Recall of the criteria for abuse of majority Unanimity that excludes the abuse of the majority Clarification once and for all of the links between abuse of majority and unanimity. Maintaining decisions taken unanimously: a priority of cassation/a logical response Abuse of majority: fundamentally conceived for minorities excluding the actions of third parties - Incompatibility between unanimous decision of associates and abuse of majority - Incompatibility of principle between the consent of all associates to a collective decision and the existence of an abuse of majority Decisions contrary to statutory provisions nullity (Article L Com) To characterize abuse of majority/minority - criteria : - Decision goes against the company - Favors the interest of the majority at the expense of the minority The contested decision must be contrary to the social interest and taken solely with the intention of favoring the members of the majority at the expense of the other associates, Abuse of law therefore damages and interest The parties have agreed on the premiums the decision has taken force of law ? [...]
[...] This latter revoked him from his functions by a decision of 17 December 2014. Procedure : Considering that his revocation had occurred without just cause, the general manager brought the sole shareholder to court for payment of a compensation, pursuant to the partnership agreement. Problem of law : Can an extrastatutory act, providing for the revocation of a general manager of a SAS, derogate from the statutes of the company, which notably set out the modalities for the revocation of its general manager? [...]
[...] Between the signature of the promise and the realization of the transfer of social rights, two general meetings took place. During the first dated October the general meeting of the company decided to grant the director and majority partner a bonus of 83,000 euros, then on November another bonus for a salary recall. These two bonuses were brought to the attention of the assignee by private deed of December However, the latter, having become director of the company, opposed this payment. [...]
[...] An extra-statutory act complements the statutes but cannot derogate from them otherwise not applicable The cassation compares the pact and the statutes, the pact derogates from the statutes of the SAS so it is not valid. An extra-statutory act, in practice a pact, can be concluded after the creation of the company, as it is complicated to modify the statutes + it is confidential in contrast to the statutes which must be published. [...]
[...] 227-1 and L. 227-5 of the Commercial Code that the statutes of the simplified joint-stock company set out the conditions under which the company is managed, in particular the modalities for the revocation of its general manager. While extra-statutory acts may supplement these statutes, they cannot derogate from them." Scope : Revocation of the Managing Director of a SAS: Extra-statutory acts can only complement the statutes without being able to derogate from them. The statutes of the simplified joint-stock company set out the conditions under which the company is managed, in particular the modalities for the revocation of its general manager. [...]
