SAS : the deliberations of partners taken in violation […]
Cass, Com, March 15, 2023, n°21-18.324
In its decision of March 15, 2023, the Court of Cassation reversed its jurisprudence, considering that the deliberations of the partners of a SAS taken in violation of the articles of association may be annulled, when this violation is likely to influence the outcome of the decision-making process.
1. The legal framework
Article L235-1 of the Commercial Code provides a framework for the nullity of corporate acts or deliberations, considering that the nullity of an act or deliberation can only result from the violation of a mandatory provision of Book II of the Commercial Code, or of the laws governing contracts (paragraph 2).
In addition, article L227-9 of the Commercial Code provides that the articles of association of an SAS determine the conditions that must be taken collectively by the partners in the forms and conditions that they provide.
Its second paragraph specifies that the powers vested in the general meetings of public limited companies are, under the conditions laid down by the articles of association, exercised collectively by the shareholders.
Finally, the fourth paragraph provides that decisions taken in violation of the provisions of this article may be annulled at the request of any interested party.
2. The facts
In this case, under a memorandum of understanding, SAS Larzul, whose sole shareholder was Vectora, welcomed two new partners: UGMA and its sole shareholder FDG.
Under this protocol, two sets of operations were agreed upon. On the one hand, contributions to Larzul, including a contribution in kind of UGMA’s business assets and a cash contribution from FDG. On the other hand, a transfer by Vectora of part of its shares to FDG.
By deliberations of December 30, 2004, the SAS approves the contribution transaction as well as the subsequent capital increase.
However, an irrevocable decision of January 24, 2012 annulled the deliberations of the sole shareholder of the SAS dated December 30, 2004, and declared the contribution agreement null and void.
Invoking the deprivation of its partnership rights since April 3, 2012, the transferee company sued the SAS for the annulment of all the ordinary and extraordinary general meetings of this company and of all the resulting collective decisions as of this date.
The Court of Appeal declared admissible the transferee’s requests for the annulment of the deliberations of the transferor’s general meetings, subsequent to January 19, 2013, as well as the balance of its requests, on the grounds that the deliberations were taken in disregard of the articles of association.
The transferor appealed to the Court of Cassation on the grounds that the nullity of acts or deliberations taken by the organs of a commercial company can only result from the violation of a mandatory provision of Book II of the Commercial Code or of the laws governing contracts, and that the violation of the articles of association of a SAS is not sanctioned by the nullity of the deliberations.
3. The opinion of the Court of Cassation
The Court of Cassation overturned the appeal decision and held that paragraph 4 of article L227-9 of the Commercial Code should be read as referring to decisions taken in violation of statutory clauses stipulated in application of the first paragraph, allowing any interested party to request the annulment of such decisions when this violation is likely to influence the outcome of the decision-making process.
The Court then reversed its jurisprudence. It was indeed a constant jurisprudence that the nullity of acts or deliberations taken by the bodies of a commercial company can only result from the violation of a mandatory provision of Book II of the Commercial Code or of the laws governing contracts, and that the non-compliance with the articles of association is not sanctioned by the nullity of the deliberation (Com May 18, 2010, n°09-14.855)
However, it considers that the organization and operation of the SAS is essentially a matter of statutory freedom. It follows that compliance with the provisions of the articles of association, which determine the decisions to be taken collectively by the partners, and the conditions under which they must be taken, is essential to the proper functioning of the company and the security of its actions.