Memoire Online - L'aménagement des droits des actionnaires après l'ordonnance du 24 juin 2004

*Adde*	To add
AFEP	French association of the private companies
Al	Subparagraph
MFA	Authority of the financial markets
ANSA	National association of the joint stock companies
Art.	Article
Have plén.	Stop of the plenary assembly of the Supreme court of appeal
BALO	Bulletin of the obligatory legal advertisements
*Bank & Droit*	Review Banks and Right
*BRDA*	Fast bulletin of right of the businesses
*Bull. civ.*	Bulletin of the stops of the civil rooms of the Supreme court of appeal
*Bull. COB*	Bulletin of the Securities and Exchange Commission
*Bull. Jolly*	Monthly bulletin Jolly of information of the companies
C. civ.	Civil code
C. Com.	Commercial law
C. my. end.	Code monetary and financial
C. wk.	Fair labor standards act
CA	Court of Appeal
Case civ.	Stop of a civil room of the Supreme court of appeal
Case. Com. Case. plowshare	Stop of the commercial room of the Supreme court of appeal Stop of the social room of the Supreme court of appeal
EC	Stop of the Council of State
chron.	Chronicle
COB	Securities and Exchange Commission
*Countered*	Contrary solution
D.	Decree
*Dr. companies*	Company law
*Gas. Stake.*	Gazette of the Palate
*will infra*	Below
*JCP E*	periodic Juris-sorter, edition undertaken
*JCP G*	periodic Juris-sorter, general edition
OJ	Official Journal
JOAN Q, OJ Senate Q	Official Journal, edition Parliamentary debates, Questions
MEDEF	Movement of the companies of France
n°	Number
obs.	Observations
p. *Small Posters*	Page Small Posters
préc.	Above mentioned
rep.	Report/ratio
Rappr.	To bring closer
*Banking and financial RD*	Review of banking and financial right
Reference mark. Min. *Reference mark. plowshare*	Ministerial answer Repertory of the Dalloz companies
*Banking rev. Dr.*	Review of banking right and the purse
*Rev. companies*	Review of the companies (Dalloz)
*RJDA*	Review of jurisprudence of right of the businesses
*RTDC*	Quarterly review of commercial law (Sirey)
S.	Following
*supra*	Above
T.	Divide into volumes
T. Com.	Judgment of a commercial court
V.	See, Voir

INTRODUCTION ................................................................................................................................ 8

FIRST PART: A NEW SPACE OF FREEDOM CONTRACTUAL: A PRIMARILY ECONOMIC INSTALLATION A FINALITY 20

SECOND PART: THE PROTECTION OF THE SHAREHOLDERS : NECESSARY COUNTERPART OF FREEDOM OCTROYEE 96

A. The protection of the shareholders at the time of creation and disappearance of actions preferably 96

2. Protective measurements at the time of the disappearance of actions preferably 103

2. Protective measurements of the shareholders relative to the increases in capital 124

INDEX ...................................................................................................................... 139

1. - « Sudden company law under our eyes of the major changes which upset the landscape of the law of 1966 that one believed stable for a long time »^1(*). Since the adoption of the last great company law, July 24, 1966^2(*), the context economic and financial evolved/moved considerably under the influence of the Community legislation, the creation and the development of new financial instruments, of the recognition of the market economy and universalization. The new company law- which is still to build- will announce by confidence restored to associated and the rehabilitation with contractual freedom. It is the era of the deregulation.

2. - The law of July 24, 1966 constitutes the base of the French right of the commercial companies, significantly supplementing the provisions of the common right of the companies contained in the Civil code^3(*) and representing a notable progress as well from the point of view of protection of the thirds as of that of the associates. In accordance with the dominant ideology of the time, it is strongly marked by the interventionism weighing of the State, fruit of a managed economy and a political state intervention, where the interaction between the large companies, the public sector and the State is large. The legislator then locks up the management engineering and of social control in a rigid corset, the company law- it is especially true for the joint stock companies and the limited liability companies- being placed under the seal of a regulation very meddle, together with a multiplicity of civil and penal sanctions which testifies to the preponderance of the institutional character of the company^4(*).

However, the text of 1966 does not have vocation to govern the whole of the company law, being intended to apply only to the commercial companies^5(*) ; the civil companies are thus excluded from the field of application of the law of 1966. Among the first, it is possible to distinguish between those which emit actions- on which will carry the present study- and those which cannot it. The action, category of transferable securities^6(*), constitutes a title of capital of a company, freely negotiable and transmissible by inscription in account or tradition- in opposition to the social share-, and which notes the rights of its holder- the shareholder- in a company enabling him to take part in the assemblies and to see itself allotting a fraction of the benefit and profit of liquidation. Only the limited companies, the limited partnerships with share capitals and the joint stock companies simplified are authorized to emit actions, other than all others^7(*).

3. - The rights of the shareholders- i.e. the stockholders of capital of SA, a SCA or SAS- knew certain installations during thirty-five last years. Naturally, the shareholders profit from the fundamental attributes attached to the quality of associate, as enacted by the Civil code, among which one distinguishes the political rights (or extra-pecuniary) and the financial rights (or pecuniary).

The first proceed of the idea that the associate is citizen of this city which is the company. It results from it, first of all, that this citizenship cannot be withdrawn to him against its liking^8(*), this suffering principle however some exceptions of legal,^9(*) statutory or^10(*) jurisprudential origin^11(*). Then, « any associate has the right to take part in the group decisions »^12(*). This prerogative revêt two forms : the first is the right to information of associated on the accounts and the social policy ; the second is the voting rights which enables him to take part in the strategic decisions and to exert its right of control on the leaders, by revoking them to the need. The right for any associate to take part in the group decisions is of law and order, the statutes consequently not being able to derogate from these provisions ; more precisely, they cannot contain a suppression for some associated with the voting rights in a case not envisaged by the law^13(*).

The seconds result owing to the fact that the company is not a philanthropic institution : the associates enter there to earn money. The emoluments are expressed primarily by the perception of dividends, which correspond to the distribution of the benefit carried out, and by a right to the reserves, which represent the retained earnings. With the winding-up of the company, the profit of liquidation will be divided between the associates.

Lastly, the rights of the shareholders obey the principle of equality, insofar as the rights attached to each action are equal. Nevertheless, this principle does not have the same range as in constitutional law. The voting rights are indeed attached to the actions and, by principle, a shareholder has as many voice as of actions ; from this point of view, the mode is uneven. In addition, the law admits the possibility of creating particular actions^14(*) enjoying certain advantages by reports/ratios with the other actions ; also, in fact, the equality of the shareholders is worth only for the of the same actions category.

4. - In the contractual theory of the company, the shareholder is the owner. He consequently has to be able it revocation of the leaders, whom he can exert in the general assemblies. These last thus have in theory a fundamental role in the exercise of the rights of the shareholders in the company, which must express the unconditional primacy of the shareholding. However, the legislator of 1966 shows himself somewhat being wary with regard to the shareholder, compared to the speculator or the small-time speculator, and tends to grant a certain confidence to the managerial class. Also, the law of July 24, 1966 takes part of this will to ensure a balance between the control of the shareholders and the capacity of the managers- of which objectives and the roles appear divergent, if not sometimes contradictory-, by enacting a regulation meddles as for the control and management engineering of the company^15(*). Of nature interventionist, the law makes social interest the compass of the company ; the leaders have significant capacities^16(*) with the reason which the shareholders would have reflecting the ultimate capacity, which is made effective only by legal^17(*) mechanisms and civil^18(*) sanctions, even of the penal sanctions of the considerations of general interest. The shareholders are supposed to direct or control the company during the meeting of general assemblies whose rules were strictly codified. This design is a transposition of the rules of the political power within the commercial companies : common will of the shareholders expressed in assembly results designation from a board of directors, which itself appoints a president, who follows the policy of the company.

Ultimately, the law of 1966, if it sets certainly up a protective framework of the shareholders and thirds, more tends to devote an imposed model of organization of the company, thus giving a certain institutional character on the latter.

5. - Since then, the context economic and financial evolved/moved considerably. The law was amended with many recoveries in order to take into account these evolutions, but they always were specific modifications or groomings without overall vision. The doctrines and the practice then called some with an in-depth reform of the law of 1966^19(*). Two series of arguments are then advanced in support of this pleading in favor of a recasting of the company law.

On the one hand, the system set up by the law of July 24, 1966 appears unsuited per hour of a standard dominating which rests on the protection of the shareholder- in particular of the minority shareholder- and the valorization of its rights which is essential taking into account the recourse crescents to the markets. In theory, the assembly of the shareholders plays a fundamental part in the exercise of the rights of the shareholders in the company ; actually, taking into account the intermittent character of this body and of the difficulties of implication of the shareholders, but also of the very broad capacities conferred by the law to the social leaders^20(*), the shareholders have little effective possibility to take part in the determination of the policy of the company^21(*). This phenomenon is all the more increased in the companies calling public upon the saving, insofar as the crumbling of the shareholding is more important there than in the companies not - dimensioned. Consequently, rise to power of the firms « managerial » accentuated the conflicts of interests between shareholders and managers and the lack of transparency in social management. It is in this context that burst a certain number of financial scandals^22(*) starting from the end of 1980, of a width such as they destabilized the financial system world and involved a loss of confidence of the small carriers, without counting the impact on thousands of paid and shareholders, as well as diverted billion. These events were accompanied by what one called « the revolt of the shareholders », furious to be misused by the social leaders. It became imperative then to reassure the shareholding and to restore the confidence of this last on the solidity of the companies. The Treadway commission, in 1987 in the United States, and the Cadbury report/ratio, in 1992 in the United Kingdom, started again the reflection on the concept of corporate governance, trend of public opinion appeared in the United States in the years 1970 which posts for objectives to ensure the transparency of financial information and to rebalance the capacities within the companies^23(*). In France, the concept- one speaks about « government of company »- was imported^24(*) following the business of the Crédit Lyonnais and was the subject of many writings^25(*), having had inter alia for effect to carry to its paroxysm the claim of the rights of the small carrier. Indeed, these « new » shareholders intended to require leaders of companies « that they develop the funded capital, assigning to them like objectives the effectiveness of management and the honesty of the division of the benefit »^26(*).

In addition, the law of 1966 does not tally any more with the increasing need of contractualiser the company law and to create a liberal environment. The regulation is judged far too omnipresent, representing a major obstacle in a context of globalisation of the markets and international competition. This does not want to say to give up any concept of social interest, but to recognize that it is necessary a control, and that it is that which invested in the company which is the best controller and whose reasoned and balanced interest is the best benchmark. For this reason, the criminal law should intervene only exceptionally, which implies certainly one « judiciarisation » with American in front of the civil courts, but which seems preferable with the bureaucratization and the penalization^27(*). In addition, a many formal obligations of the law of 1966 became obsolete, heavy and do not correspond any more to economic reality. The users of SA complain about the unflexibility of this social form ; fault of being able to model with their own way the statutes of the company because of bolts instituted by the legislator- for example, as regards majorities-, the parts are condemned to derogate from the statutes which they have written they-even by assistant protocols or pacts whose legal solidity is sometimes dubious^28(*).

To mitigate the rigidity of SA, the legislator in 1994 a new social form instituted : the joint stock company simplified (SAS). The governing idea is to offer to the users a form of organization of the company as close as possible to a company-contract, of which the main part of the rules of operation would proceed of the convention of the parts, the regulation of SA being applicable for the surplus. A law of July 12, 1999 increased the flexibility of this social form by eliminating certain initial constraints and while making it possible to the physical people to be associated of SAS, which was prohibited to them initially^29(*).

Thereafter, the law on the new economic regulations- known as « law NRE » - of May 15, 2001^30(*) introduced considerable provisions directly inspired of the principles of the corporate governance by improving information and the transparency into operation of the limited company and by rebalancing the capacities in its center^31(*). In addition, in response to the crisis of confidence that for a few years the financial markets following the deviances noted in the management of certain companies have known^32(*), the law of financial safety of August 1, 2003 was adopted^33(*) per which the legislator sought to improve control of the accounts and to reinforce the transparency in the operation of the companies^34(*), while dépénalisant certain intrigues. Laws NRE and of financial safety aim to the first chief the companies which call upon the saving publicly. The quotation of the company utilizes moreover, apart from the company law, the stock exchange right, which has vocation to ensure the protection of the investor ; one should not protect only the shareholder, but also that which was it or which could become it, i.e. in a general way the saver^35(*). For as much, the recent reforms do not concern that the companies with dimensions and of many provisions also apply to the companies not - dimensioned, the legislator not having taken true party enters, on the one hand, the adaptation on a case-by-case basis of certain rules for the companies with dimensions and, on the other hand, the creation of distinct modes for the companies with dimensions and the companies not - dimensioned^36(*). The present study will consequently consider the adjustment of the rights of the shareholders as well in the companies with dimensions as not - dimensioned, taking into consideration company law, without operating dichotomy.

The legislator thus carried out a legal refitting of the rights of the shareholders- reinforcement of the rights of intervention and information- and to a relative easing of the rules applying to the in particular- commercial companies-, upsetting somewhat the diagram of social organization fixed by the law of 1966.

7. - There remained however a last source of rigidity relative to the financing of the company. The creation of new richnesses, the investment of the saving in own capital stocks of the companies and the prosperity of those constitute a major stake for the French economy from the point of view of the large European single market and universalization. For this purpose, the contractors need the legal structures best adapted, the company law not having to constitute a barrier to the development of the companies^37(*), in particular in a current context of « law shopping ». This is particularly true being the creation of new instruments or new financial techniques.

The French practice^38(*) denounced the absence, in French substantive law, of legal tools making it possible to answer waitings actors of the capital risks and the capital development, where it is a fact that the American practice was essential. This was all the more prejudicial with the French companies that other substantive laws allow the installation of such a vehicle ; however, the investors go to simplest and choose the investment of which the mechanisms are familiar for them. It thus went from there from the competitiveness of our companies and the attraction of the Place of Paris.

Beyond the sometimes qualified- recent reforms « stacking of texts hold-all »^39(*)-, the need for an adaptation of the texts to the needs for the practice was done increasingly pressing, very continuously to ensure the transparency and safety necessary to the shareholders, the creditors and the employees. For this purpose, it was proposed to continue the reform of the right of the movable being and issues of securities desired by the CNPF in 1993^40(*) and 1994 introducing beyond a new category of titles : actions preferably^41(*). The provisions governing the movable issue of securities by the joint stock companies resulted from a whole of texts worked out by successive layers during fifty last years^42(*) ; also, a recasting having for object the consistency and the modernization of the whole of the texts on the matter was awaited. In the same way, the wish to see completed the reform of the right of the new issues of capital, started by the law of August 8, 1994^43(*), was done insistent ; the introduction of a greater freedom for the transmitters each time that was possible was claimed by the professionals. Reinforcement of the protection and the representation of the holders of titles giving access in the long term to the capital, easing of the emission rate of the obligations... The hopes of the economic actors were numerous.

8. - The ordinance of June 24, 2004^44(*) was thus awaited. Neither its width, nor its content could astonish. The provisions which it contains have inspired indeed by various projects known for several years, in particular the proposals put forth by the CNPF in 1993^45(*) or, more recently, the common report/ratio of the French Association of the private companies (AFEP), of the national Association of the joint stock companies (ANSA) and of the Movement of the companies of France (MEDEF), « For a modern right of the companies », diffused in October 2003^46(*).

In what it operates of the profound changes in the French right of the companies, this text is founder. It comprises a certain number of innovations having milked at the joint stock companies particularly- with regard to the right of the transferable securities-, the posted objectives^47(*) of the ordinance being the simplification of the movable issues of securities, the unification of the applicable procedures and the attractivity of the French place for the investors^48(*) . Also, in addition to a series of disparate measurements, the reform is ordered primarily around two axes : new issue of capital and transferable securities emitted by the joint stock companies.

In this respect, the ordinance prolongs a preceding ordinance n° 2004-274 of 25 March 2004, bearing simplification of the right and formalities for the companies^49(*). This last text modifies the company law on two points, on the one hand, by arranging the mode of the limited liability companies^50(*) and, on the other hand, while proceeding to a de-penalization partial of the company law. An overall movement thus exists and consists in allowing the joint stock companies, to be not only financed more easily, but also to facilitate the reports/ratios which can exist between capital and to be able.

9. - The development of the ordinance of June 24, 2004- like that of the ordinance of March 25, 2004- did not follow the process normally reserved to a supposed text to provide the foundations of the right of the investments deprived in the commercial companies^51(*). It is indeed advisable to recall that it is the product of a criticized legislative method^52(*), or all at least suspect^53(*), which consists, for the legislative power, to delegate to the executive power whole sides of its competence in order to « to simplify the right » or to carry out codings or transpositions of Community directives. With the particular case, it is true that the need for an adaptation of the texts to the needs for the practice was done increasingly pressing. Also, the law of July 2, 2003^54(*) had authorized the Government to be adopted by ordinance of measurements raising normally of the legislative power in various fields of the economic right. Pursuant to articles 26, 4° and 35, 2° of this law of enabling, the Government was to take, by ordinance, before July 3, 2004, « all measurements in order to simplify and to unify the mode applicable to the transferable securities of the commercial companies ». One year and half later, the law of December 9 2004 of simplification of the right^55(*) was promulgated, ratifying inter alia the ordinance of June 24, 2004^56(*).

The decree of application was to be published on February 10, 2005^57(*), that is to say nearly eight month after the ordinance, which was the subject here also of criticisms^58(*). Waiting was indeed felt as a kind of paralysis by the companies for which the issue of titles constitutes an act running, all the more makes an attempt distressing that it was not only about one simple not differed from entry into force, but one period of great uncertainty as for the applicable mode. The doubt real, was inflated by the exceptionally significant number of references to a decree in Council of State, maintained in addition by divergent interpretations the situation on certain neuralgic points^59(*).

As from February 13, 2005, the shortly after its publication in the Official Journal, the text of the decree came into effect^60(*), and leaving that the ordinance of June 24, 2004, with each time the application of this one was differed.

10. - In addition to measurements relating to the liberalization of the duty applicable to the transferable securities and the easing of the right of the new issues of capital^61(*), the ordinance contains a certain number of scattered general provisions affecting the company law^62(*).

On a purely preliminary basis, the ordinance carries out a certain conceptual organization by introducing a new terminology for the types of transferable securities emitted by the joint stock companies; it distinguishes from now on, on the one hand, them « titles of capital »^63(*) and them « transferable securities giving access to the capital »^64(*) - which covers the whole of the securities transferable suitable for affect the capital- and, in addition, them « evidences of indebtedness »^65(*) and them « transferable securities giving right to attribution of evidences of indebtedness »^66(*). In addition, always in a preoccupation with a simplification, the legislative definition of the transferable securities is carried today by the article L. 211-2 of the monetary and financial Code, to which returns from now on the article L. 228-1 of the Commercial law^67(*) ; this alignment of the Commercial law, as « code following » on the monetary and financial Code, « code pilot », can only contribute to the coherence of the company law and of the financial right^68(*). In addition, the ordinance legalizes faculty, with the profit of the dimensioned same companies, to impose, by the way of statutory stipulations, the personal form for whole or part of the capital^69(*) ; in parallel, companies not - dimensioned from now on are authorized to emit titles of capital or credit to the carrier^70(*), the field of the obligation of information relating to crossings of threshold being adapted^71(*). Lastly, that the titles are with dimensions or not, the transfer of property in the event of transfer of transferable securities is carried out at the date of inscription in account of the purchaser^72(*).

The ordinance also makes creative work in three connections. First of all, in the dimensioned companies, the sale of the actions corresponding to the rights forming broken at the time of a fusion or of a scission from now on is authorized^73(*). Then, being the exercise of the rights nonpecuniary attaches to the transferable securities registered out of account-joint, it is the convention of opening of account which must determine one or the other of the Co-holders^74(*). Lastly, question of titles in déshérence, which obstructs the companies extremely wishing to carry out operations on the capital when the address of certain very minority shareholders appears obsolete, is solved^75(*) by the installation of a specific procedure consisting of the sale of the titles whose holders cannot be joined^76(*).

The recourse to the clauses of approval moreover is facilitated. The principle of the validity of the clauses of approval, in the companies not - dimensioned, is reaffirmed but from now on at the head article L. 228-23 of the Commercial law^77(*). More substantially, the clause of approval can concern, either only the transfers of shares, but also of titles of capital or transferable securities ; in addition, the text does not limit any more the clauses of approval to the transfers with a third, thus opening the door with approvals between shareholders. An important practical precision is also inserted into the article L. 228-24 of the Commercial law : yielding sees itself offering, constantly, a faculty of repentance^78(*), including subsequently to the fixing of the price of the titles by an expert in the absence of agreement between the parts^79(*).

Lastly, the mode of the regrouping of the actions of companies not - dimensioned undergoes some tiny modifications^80(*), while the practice consisting in negotiating not yet emitted actions is legalized by the ordinance^81(*).

11. - Notwithstanding the above mentioned provisions, the ordinance of June 24, 2004 comprises three principal innovations, having milked with the new issue of capital, the creation of the actions preferably and the édiction of a unified mode of the made up transferable securities. The two first will hold our attention in what they affect the rights of the shareholders. Indeed, the question of the mode of the transferable securities giving access in the long term to the capital and of the protection of their holders does not concern the subject of this study insofar as the latter do not constitute shareholders of the company^82(*) in which they hold titles^83(*).

The actions preferably, indisputable innovation of the ordinance, replace old disparate titles- the preferred stocks, the actions with priority dividend without voting rights, the certificates of investment and the certificates of voting rights-, whose law regulated in detail the mode^84(*). The new device grants a great freedom to the companies to emit titles whose characteristics result from the statutes, which allows the leaders and the shareholders of origin to be able to answer with flexibility waitings of the investors and is also appropriate for certain assemblies of groups.

The reform of the right of the new issues of capital continued by the text takes part of this same will to attract new investors by facilitating the techniques of financing of the companies. The easing and the simplification of many measurements on the matter, in particular by a recasting of the mode of the financial authorizations, adapt the right to the practices and needs for the financial markets.

12. - On this last question, the new right appears to propose relatively clear provisions, even if the legal work of interpretation is necessary. On the other hand, the topic of the actions preferably touches with the last great principles of the company law : equality of the shareholders and the respect of the voting rights of the shareholders ; it is the same, although to a lesser extent, being the reinforcement of the delegations of powers in the operations of new issue of capital. Moreover, within sight of certain vacuums left by the text, it is allowed to wonder about their practical consequences, « since the company law, touched in its heart, wavers, its balance loses and does not find its base in the only lines of the new text. »^85(*)

If it is not yet possible to evaluate the way in which the practice will implement this reform, a first response to these concerns can however be brought. The granting of a greater freedom in favor of the transmitters could not indeed have been done without continuing to ensure the protection of the shareholders and the transparency of the operation of the companies. Also, as regards new issue of capital, being the delegations to the body of direction of the company- on the capacity to decide on an increase for example-, their mode it is strictly framed by the law. In the same way, concerning actions preferably, if it is possible to vary largely the rights which are attached there, it is nevertheless certain rules of general law and order and law and order of the company law which must be respected. The information of the shareholders was in addition reinforced, in order to protect as well the ordinary shareholders as the holders from actions preferably. Various protective measurements of the shareholder-savers thus accompany the liberalization operated by the ordinance by June 24, 2004, while waiting for the inevitable contribution of jurisprudence on the dispute to come.

13. - Thus, the ordinance of June 24, 2004 opens the voice of a greater flexibility by arranging a space of freedom to the profit of the transmitters of the company law (I), answering the concern and waitings of the economic agents, while accompanying this liberalization by a series of measurements necessary to the maintenance of the protection of the shareholders (II).

I. A NEW SPACE OF FREEDOM CONTRACTUAL: A PRIMARILY ECONOMIC INSTALLATION A FINALITY

14. - Since the years 1970, the increase in the needs for financing for the companies, the economic or financial crises successive returning the financing by more difficult loan, the internationalization of the capital markets, the competition of the foreign companies laid the stress on the importance of the access to the resources capital and conduit to a progressive easing of the rules relating to the new issues of capital and the transferable securities in a general way^86(*).

15. - The ordinance of June 24, 2004, answering at the requests of the place synthesized in various reports/ratios of the professional organizations^87(*), marks an additional stage in the recasting of the company law by creating a new category of titles, the actions preferably (B), and while bringing certain easings intended to facilitate the realization of the new issues of capital (A). In fact thus at the same time the emitted titles and the techniques of emission are affected by the ordinance.

A. The simplification of the mode of the new issues of capital

16. - The last significant reform of the provisions of the Commercial law relating to the new issues of capital went back to a little more than ten years. In response to the requests of the professionals who had presented complete, detailed and innovative proposals^88(*), the Government had endeavoured to implement a certain number of measurements of simplification and flexibility.

This work led to the law of August 8, 1994 carrying various provisions of a nature economic and financial^89(*). In particular, this text introduced the faculty of total delegation granted to the board of directors, by the means of a single resolution giving to the board of directors the capacity to proceed, within 26 month, with issues of all titles giving access immediately or in the long term to the capital ; it authorized the subdelegation with the chairman of the board for purposes to adopt the final conditions of the operations considered ; it reduced the period of exercise of the preferential duty of twenty days subscription calendar for ten market-days ; finally, it specified that in the event of suppression of the preferential duty of subscription without indication of the name of the payees, the price of subscription must be at least equal to the average of the courses noted during ten market-days consecutive chosen among the twenty last (rule known as of « ten among the twenties »).

17. - These measurements, if they constitute easings intended to facilitate the realization of the new issues of capital, immediate or in the long term, were not enough to put an end to criticisms. It was reproached to the legislator for not having followed until the end the logic suggested by MEDEF in his report/ratio^90(*) and to have thus broken the coherence of the suggestions which had been made to him.

The result of this half-measure and the sedimentation of former legislative work was a regulation complex and scattered, variable according to the emitted products and leaving perdurer constraints not very compatible with the requirements of the capital markets^91(*).

18. - One of the axes of the ordinance of June 24, 2004 is thus the continuation of the easing of the mode applicable to the new issues of capital^92(*).

Several provisions of the ordinance return to modifications which were to be made to the decree of March 23, 1967. It is thing made since February 13, 2005, date of entry into force of the decree of application of the ordinance.

19. - On a purely preliminary basis, the ordinance clarifies the mode of the new issue of capital by extending the range of the provisions of the Commercial law which govern it with the whole of the new issues of capital which can result from the emission of the various types of transferable securities.

The article L. 225-127 of the Commercial law specifies as well as the authorized capital of SA- and by reference that of the SCA^93(*) or SAS^94(*) - can be increased either by the issue of shares (ordinary) or actions preferably, or by the increase of the par value of the existing titles of capital, or by the exercise of rights attached to transferable securities giving access to the capital.

Moreover, the procedure of issue of titles of capital and that relating to the movable issue of securities giving access to the capital or giving right to attribution of evidences of indebtedness^95(*) obey a unified mode from now on resulting from the articles L. 225-129 with L. 225-129-6 of the Commercial law, which replaces the various modes previously applicable to the emission of these transferable securities.

20. - These made observations, the improvement of the right of the new issues of capital, such as it results from the ordinance of June 24, 2004, results at the same time in a lightening of the procedures of emission, made effective by a widening of the delegations on the matter (1), and by various measurements of simplification of the mode of the new issues of capital (2).

1. The widening of the delegations

21. - The liberalization of the emission of the transferable securities passes by the improvement of the devices making it possible to the leaders to carry out issues of titles without having to proceed to the convocation of a general assembly, which comprises constraints and uncertainties. The new device makes it possible moreover to improve the reactivity of the companies

The ordinance deeply amends the modes of decision of the new issues of capital and the technical articulation of the delegations. The old article L. 225-129 of the Commercial law is thus substantially rewritten^96(*).

22. - While calling into question the principle of the exclusive competence of the extraordinary general assembly of the shareholders to decide the principle of a new issue of capital (A), the ordinance touches with a fundamental aspect of the balance of power within the joint stock companies. The practical methods of operation of the new system of delegation set up by the ordinance (b) call consequently with a thorough analysis.

a) End of the exclusive competence of the extraordinary general assembly

23. - To the ordinance of June 24, 2004, the extraordinary general assembly of the shareholders was exclusively qualified to decide on a new issue of capital ; the reform of 1994 had not called into question this principle. It was considered whereas was by no means to be called into question « the principle of sovereignty of the general assembly of the shareholders for all the acts which engage the existence, the image or the development of the company, among which figure obviously the decision to emit transferable securities giving access to the capital »^97(*).

In support of this design, it was advanced, on the one hand, that the new issue of capital supposes a modification of the statutes and, on the other hand, that the authorized capital is, not only one essential element of the distribution of the capacities between the shareholders, but still constitutes the pledge of the creditors^98(*).

24. - However, the legislator of 1994 seemed ambivalent on the real range of this principle. On a side, came under the responsibility of the extraordinary general assembly formally : the decision to increase the authorized capital, the fixing of the amount of this increase and the determination on behalf of this increase being able to be realized without preferential duty of subscription^99(*). On another side nevertheless, certain provisions let show through the fact that the concept of authorized capital was already in germ in the reform of 1994^100(*).

25. - If the extraordinary general assembly were formally qualified to only decide principle of a new issue of capital, the article L. 225-129 of the Commercial law, under the empire of the legislation former to the ordinance, however authorized the assembly, after having voted the operation of increase in the capital, to delegate to the board of directors or the directory^101(*) the care to carry out this operation. ; a delegation of the capacities of realization of the new issue of capital was thus possible.

Contrary to the restrictive distribution of the capacities evoked in parliamentary work^102(*), the text of the old article L. 225-129 of the Commercial law adopted a rather flexible approach of the delegation of the capacities of realization of a new issue of capital^103(*). In fact, the generally recognized practice was that the extraordinary general assembly delegated to the board of directors or the directory the right to carry out issues of titles giving access to the capital or not to use this delegation, envisaged a maximum amount of emission and not the amount of the emission or emissions which it would have decided, and indicated the maximum amount of capital which can be emitted without preferential duty of subscription.

The extent of this delegation was thus connected more with one authorization of emission that to a delegation of realization of an emission of capital decided by the general assembly extraordinary and become obligatory

26. - If the ordinance of June 24, 2004 opens a formal breach in the exclusive competence of the extraordinary general assembly to decide the new issues of capital, it comes in makes confirm former interpretations and the practice.

The article L. 225-129, subparagraph 1st of the Commercial law, modified by the ordinance, explicitly devotes the concept of authorized capital. From now on, the board of directors or the directory can be seen delegating by the extraordinary general assembly the power to decide on an immediate new issue of capital or in the long term.

One will however note the concern of the writers of the ordinance of not separating great principles too easily. The first sentence of the article L. 225-129 recalls indeed that « the extraordinary general assembly is only qualified to decide an immediate new issue of capital or in the long term » ; but it can be deprived some with the profit of the board of directors or the directory. One thus needs a decision of the extraordinary general assembly of the shareholders to give to the board of directors or the directory, according to case's, a capacity to decide itself a new issue of capital. This decision can be renewed regularly, but a statutory provision would not make it possible to delegate in a permanent way to the bodies of direction the power to increase the capital.

The adjustment of the rights of the shareholders, if it is real, will consequently be made effective only by their will. By giving a delegation to the directory or board of directors, the shareholders give certainly up part of their prerogatives, but this in a voluntary way.

The approach thus adopted by the ordinance is in conformity with the possibilities offered by the second European directive of December 13, 1976^104(*).

It can decide new issue of capital itself by fixing the whole of its methods, pursuant to the article L. 225-129, subparagraph 1st of the Commercial law^105(*).

It can decide new issue of capital and delegate to the board of directors or the directory, pursuant to the article L. 225-129-1 of the Commercial law, the capacity to lay down the methods of them ; this delegation is framed by the obligation to carry out the new issue of capital within the five years deadline of as from the decision or the delegation^106(*).

She can finally delegate to the board of directors or the directory, pursuant to the article L. 225-129-2 of the Commercial law, her competence of decision within the limits determined by the general assembly ; this delegation is framed by the obligation for the general assembly to fix of it the duration, which cannot exceed twenty-six month, and to determine the total ceiling of it.

* ¹ Mr. GERMAIN, « The ordinance of June 24, 2004 : reform or revolution ? », Dr. companies 2004, p. 3, reference mark 8.

* ² Law n° 66-537 of July 24, 1966, of which the provisions are integrated in the legislative part of the Commercial law since ordinance 2000-912 of September 18, 2000, like in the legislative part of the monetary Code and financier since the ordinance 2000-1223 of December 14, 2000.

* ⁴ A traditional debate ignited the doctrines as for the nature of the company : is a contract, subjected consequently to goodwill associates ? Is not it rather an institution, withdrawn essentially from the will of its members ? On this question, the v. in particular synthesis of J. CL. MAY, « The company : contract or institution ? » in the work coordinated by B. BASDEVANT-GAUDEMET, Contract or institution : a stake of company, LGDJ, 2004, p. 122.

* ⁵ The companies can indeed be civil or commercial, the criterion of distinction resting on the activity or the legal shape of the company. Whatever the nature of its activity, is considered commercial any company which adopts one of the forms controls by the law of July 24, 1966, namely: limited company (SA), limited liability company (limited liability company), limited liability partnership (SCS) or action (SCA), partnership (SNC). Are added to it the unipersonal company to limited responsibility (EURL), the shape of limited liability company having only one single associate (introduced by the law n° 85-697 of July 11, 1985), and the simplified joint stock company (SAS or SASU), form of SA of which the working procedure raises, to a large extent, only will of its members and which can comprise only one single associate (SASU) (introduced by the law n° 94-1 of January 3, 1994 and modified by law 99-587 of July 12, 1999).

* ⁷ This results from the combination of article 1841 C. civ., of the articles L. 225-1, L. 226-1, L.227-1 and L. 228-1 C. Com., and of the article L. 211-3 C. my. end. (introduced by the ordinance of June 24, 2004).

* ⁸ In the silence of the law, the principle of the prohibition of the exclusion of a associate was affirmed by the Supreme court of appeal in 1996 : Case. Com., March 12, 1996 : Rev. companies 1996, p. 554. V. too : CA Toulouse, June 10, 1999 : JCP E 2000, II, 10372, note J. - J. DAIGRE.

* ⁹ The law envisages cases of exclusion : in the companies with variable capital (art L. 231-1 C. Com.), when the incapacity or the vice one of the assent of a associate is likely to involve the cancellation of the company (art 1844-12 C. civ.), against the leaders in the event of rectification or to bankruptcy of the company (art L. 621-59 C. Com.) or, in the dimensioned companies, against the minority ones which do not have more than 5% of the capital or the voting rights (art 237-1 of the general Payment of the MFA).

* ¹⁰ Case. Com., December 13, 1994 : JCP E 1995, II, 705, note Y. PACLOT : nothing prohibits to insert in the statutes a clause authorizing the exclusion of a associate so certain events definitely specified in advance has been suddenly carried out. Besides the law envisages expressly this possibility in SALT (art 21 of the law of December 31, 1990) and in SAS (art L. 227-16 C. Com.).

* ¹¹ Certain operations relating to the capital, in particular it « blow of accordion », indirectly lead to exclude some associated. The legitimacy of the reduction of the capital by « blow of accordion » and of exclusions of shareholders who result from this was validated by jurisprudence : Case. Com., May 17, 1994, Usinor : Rev. companies 1994, p. 485, note S. DANA-DÉMARET ; Case. Com., June 18, 2002, Association Adam C/Amy SA : JCP E 2002, 1556, note A. VIANDIER.

* ¹³ Case. Com., February 9, 1999 : Rev. companies 1999, p.80, note P. CANNU. - On the voting rights of the usufructuary, while at the same time the question of knowing if this last could be seen allotting the quality of associated was not settled yet by the Supreme court of appeal, it was judged that was null the statutory clause depriving the usufructuary of very voting rights, which did not enable him to vote the decisions relating to the benefit : Case. Com., March 31, 2004 : JCP E 2004, 929, note A. RABREAU.

* ¹⁴ Actions with priority dividend without voting rights, actions with voting rights double, actions preferably, etc

* ¹⁵ The conditions of majority and quorum, as well as the distribution of the capacities between the assembly, the bodies of direction and the shareholders cannot be modified. For example, the assembly could not decide to create a Management committee, which could be only one body carrying on its activity under the authority of the council and which thus belongs to the exclusive will of this last. In this direction : CA Aix-en-Provence, September 28, 1982 : Rev. companies 1983, p. 773, note J. MESTRE. This condemns the legal effectiveness of the committees normally created in the joint ventures.

* ¹⁶ Art 98 of the law of July 24, 1966 : « the board of directors is invested the widest capacities to act as any circumstance in the name of the company » within the limits of the social object ; it is the same for the president.

* ¹⁷ Rights of information and communication : right of communication preliminary (art L. 225-108 C. Com.), permanent right of communication (art L. 225-117), right to put written questions (art L. 225-108, Al 3 and L. 225-232) ; right to present resolutions (art L. 225-105) ; right to ask for the designation of an expert of management (art L. 225-231) ; right to ask the challenge (art L. 225-230) or the revocation (art L. 225-233) of the auditor ; right to ask for the designation of an agent charged to convene the assembly (art L. 225-103).

* ¹⁸ Right to exert the social action collectively of civil liability counters the leaders (art 200 of the decree of March 23, 1967) ; right to exert the social action individually of civil liability counters the leaders (art L. 225-252 C. Com.) ; responsibility in the event of rectification or for bankruptcy.

* ¹⁹ G. BERLIOZ, « Corporate Governance, the essential reform of the company law », Banks Strategy 1995, n° 120, p. 8 ; J. PAILLUSSEAU, « The modernization of the company law commercial », Dalloz 1996, n° 34 and 35 ; PH. MARINI, the modernization of the company law, Report/ratio to the Prime Minister, French Documentation, 1996 ; J. - J. DAIGRE, the modernization of the company law - First reflections on the Marini Report/ratio, Acts of the conference organized by the Federation national for the right of the company, November 13, 1996, Jolly Editions, Practical of the businesses, under dir it. J. - J. DAIGRE ; CNPF, For an in-depth reform of the company law, 1996.

* ²⁰ This brings to note that the institutional character of the company, in the absence of possibility of conventional restriction of the rights of the leaders and the capacity of direction, corresponds more to the assertion of a theoretical sovereignty of the shareholding than to an effective ultimate capacity.

* ²¹ On the question of the vote of the shareholders in general assembly, the article of A.-L. JULIEN, « The MFA wants to encourage the shareholders to vote », The Barber, February 3, 2005, indicates that today, in France, less than half of the shareholders vote in general assembly, whereas it is the only way for them of being expressed on the strategy and the results of the company of which they are owners. In this context, which perdure in spite of the recent reforms, the Authority of the financial markets (MFA) created a working group chaired by Yves Mansion who has the role of leaning on the technical and economic obstacles with the effective exercise of the voting rights of the shareholders. On this topic, v. also J. SPINOSI, « General assemblies shareholders in the limited companies, reality or fiction ? », Rodière Studies, 1982, p. 125.

* ²² The businesses BCCI, Maxwell or Poly Peck in the United Kingdom, Enron, WorldCom or Tyco in the United States, Vivendi Universal or Crédit Lyonnais in France, Parmalat in Italy, HIH, Berliner Bank or Holtzman in Germany, Ansett Airlines or One Such in Australia, Swissair in Switzerland for example defrayed the chronicle.

* ²³ For A.F. DAMN FOOL, Corporations in Prospect, Michigan, 1976, the corporate governance consists to define or redefine the role and the place of the bodies of administration of the company, aiming at reaching a balance between the three essential components of this capacity : management, the Board of directors and the General meeting. The corporate governance is thus a mode of active accompaniment good ranging between shareholders and managers.

* ²⁴ The debate crystallized in 1994 on the idea of a dissociation between property of the capital and exercise of the capacity, implying a reflection on the role and the responsibilities for the administrators. The CNPF and the AFEP then charged a committee with continuing the reflections engaged on the other side of the channel, which led to the Report/ratio Viénot I published in 1995 and brought up to date in 1999 (Report/ratio Viénot II). This was supplemented by a series of reports/ratios proposing to reform the company law so that into account the requirements of the government of company are taken better : report/ratio Button (Sept. 2002), report/ratio of the Institute Montaigne (March 2003), report/ratio cosigné by the AFEP, the ANSA and MEDEF (Oct. 2003), legal Commission Report of the CCIP (Oct. 2003).

* ²⁵ It is not possible to on the matter provide an exhaustive list of all the writings. One can inter alia quoting : PH. BISSARA, « True stakes of the debate on the «government of the company « », Rev. companies 1998, p. 5 and S. ; A. COURET, « The government of company, Dalloz 1995, chron. p. 163 ; P. CANNU, « Legitimacy of the capacity and effectiveness of control in the joint stock companies » : Bull. Jolly 1995, p.637 ; R. BERTRAND, « Report/ratio Viénot II : government of company and interests of the shareholders », Books of the Audit, June 2000, n° 9, pp. 45-47 ; R. TRUCK DRIVER, « New tracks for the governorship : Bull. Jolly 2003, p. 611 ; « Government of company, recent evolutions in France and abroad », Bull. COB, November 1995.

* ²⁶ C. NEUVILLE, « The government of company : for what to make ? », Small Posters, March 7, 1997, n° 5 : according to Colette NEUVILLE, these objectives coincide with the fundamental principles of the company law Anglo-Saxon founded on the fiduciary duties of diligence and honesty of the leaders with regard to the shareholders.

* ²⁷ According to C. NEUVILLE, « The government of company : for what to make ? », art préc. : the shareholders do not feel not protected by the penal continuations, and the system décrédibilise French employers.

* ²⁸ V. pH. BISSARA, « The maladjustment of the French right of the companies to the needs for the companies and risks of the solutions », Rev. companies 1990, p. 553.

* ²⁹ This easing accelerated the development of SAS, adopted by 63 624 companies at January 1, 2004, i.e. 2,61% of the total of the companies. On this question, v. Mr. GERMAIN, « Released SAS », JCP E 1999, p. 1505 ; J. PAILLUSSEAU, « The new joint stock company simplified. The Big-bang of the company law », Dalloz 1999, p. 333.

* ³¹ A. VIANDIER and A. CHARVERIAT, Companies and law NRE, Editions Francis Lefebvre, 2nd ED., 2002 ; J. - J. DAIGRE, « Law of May 15, 2001 relating to the new economic regulations- Aspects of financial right and company law », JCP E 2001, n° 25, act. p. 1013.

* ³² V. note n° 22. - As well as declared the Minister for the Economy Francis Mer at the time of the presentation of the bill at the Council of Ministers on February 5, 2003, «the bill of financial safety is an at the same time political and technical response to the crisis of confidence in the mechanisms of the market and to the insufficiencies of regulation whose world economic and financial has become aware for two years».

* ³⁴ A. COURET, « Provisions of the law financial safety interesting the company law », JCP E 2003, 1290.

* ³⁵ For the protection of the shareholder-saver by the stock exchange right, it is returned to the provisions of the monetary and financial Code and the general Payment of the MFA of 2004.

* ³⁶ On these questions, v. S. OF VENDEUIL, « New economic regulations and improvement of the rights of the shareholders in the joint stock companies not - dimensioned », JCP NR 2002, n° 1029 ; H. BOISSEL-DOMBREVAL, « Right of information of the shareholders of the companies not - dimensioned after the recent reforms », Gas. Stake. 2004, n° 148, p. 34.

* ³⁷ ANSA, AFEP and MEDEF, For a modern right of the companies, common report/ratio, October 2003 (available on http://www.medef.fr).

* ³⁸ V. in particular ANSA, AFEP and MEDEF, For a modern right of the companies, rep. préc. ; PH. BISSARA and J. - P. BOUÈRE, « Proposals of the CNPF of modernization of the mode of the issues of titles of capital », Bull. Jolly 1994, p. 9 ; MEDEF, actions preferably : proposals of MEDEF for a modernization of the right of the transferable securities, report/ratio, June 2001.

* ³⁹ Mr. COZIAN, A. VIANDIER and F. DEBOISSY, Company law, Litec, 2004, p. 2.

* ⁴⁰ PH. BISSARA, the modernization of the mode of the issues of titles of capital, report/ratio of the CNPF, April 1993.

* ⁴¹ It was a question of taking as a starting point the the Anglo-Saxon preferred shares, actions comprising, in addition to the traditional rights attached to the actions, certain political and financial rights. In practice Anglo-Saxon, the political rights guarantee to the investors privileged information and the participation in the management or the control of the company. The financial rights, on the one hand, arrange a preferential distribution of the price in the event of transfer as well as fusion or profit in the event of liquidation of the company, on the other hand, protects the investors against the consequences from the realization of one or more later round tables on the basis of valorization of the company lower than that accepted by them, thanks to a mechanism of adjustment of the number of the actions which they hold (ratchet).

* ⁴² The law of February 25, 1953 organized the mode of the convertible bonds (OCA) ; the law of June 26, 1957 designed the oil certificates ; the law of July 24, 1966 devoted the practice of the emission of convertible bonds against actions (OAS) (L. art 200), certificates of investment (L. art 283-1 and S.), obligations with goods of application for shares (OBSA) (L. art 194-1 and S.), participative titles (L. art 283-6 and S.) ; the laws of September 10, 1947 and June 17 1987 organized the mode of the co-operative certificates of investments ; the laws of September 10, 1947 and July 13 1992 arranged the co-operative certificates of associates ; modifications intervened in 1969, 1973 and 1983 ; then the law of December 14, 1985 instituted an apparently general mode applicable to the transferable securities « complexes » by allowing the creation of unnamed transferable securities, but did not modify the former texts...

* ⁴³ Law n° 94-679 of August 8, 1994 : « Procedure of the new issues of capital after law DDOEF of August 8, 1994 », Bull. ANSA 1994, n° 2729 ; B. VATIER and D. BOULLET, « Innovations of the law of August 8, 1994 in the company law », Gas. Stake. October 1995, p. 535.

* ⁴⁵ PH. BISSARA, the modernization of the mode of the issues of titles of capital, rep. préc.

* ⁴⁷ According to Mr. BANDRAC, P. BIROTHEAU, C. DEBIN, J. - P. DOM, S. GAILLET, F. ROQUAIS and Mr. SUPIOT, « The mode and the emission of the transferable securities after the ordinances of 2004 », Practical Acts and engineering member, September-October 2004, n° 77, p. 7, under dir it. J. - J. DAIGRE, the ordinance is also justified, on the one hand, by a will of competitiveness of the French right at the time of the practical advent of the societas europae (SE) and, on the other hand, by a form of return of beam favorable to the freedom of the transmitters, after a series of constraining reforms, in particular for SA.

* ⁴⁸ Report/ratio with President de République « relating to the ordinance n° 2004-604 of the 24 June 2004 bearing reform mode of the transferable securities emitted by the commercial companies and extension to overseas of provisions having modified the commercial legislation », OJ of the 30 July 2004, p. 13577 ; v. Bull. Special Jolly 2004, n° 7 (a), p. 3 and 15. V. also the article of the adviser of the Minister for Justice, J. THE POPE, « The philosophy of the reform », in the new right of the transferable securities after the reform of June 24, 2004, Droit & Patrimoine 2004, n° 130, pp. 80-101.

* ⁴⁹ Schedule n° 2004-274 of March 25, 2004, OJ n° 74 of March 27, 2004. - Th. MASSART, « Aspects members of the ordinance n° 2004-274 of bearing 25 March 2004 simplification of the right and the formalities for the companies », Bull. Jolly 2004, p. 743 ; B. THOMAS and P. EMERIAU, « The ordinances of March 25 2004 simplify the administration of the companies », Option Finances 2004, n° 780, p. 31.

* ⁵⁰ In particular, the limited liability companies have from now on the possibility of emitting obligations.

* ⁵¹ On this question, v. A. COURET and H. NABASQUE, transferable Securities- New issues of capital- Nouveau mode- Schedule of March 25 and June 24, 2004, Editions Francis Lefebvre, 2004, spéc. p. 7 and S.

* ⁵² The company of Proxinvest COUNCIL virulemment criticizes the modification of the law by way of ordinance : « the government reduces the rights of the shareholders by ordinances of kindness » (article published on http://www.proxinvest.com).

* ⁵³ V. Mr. GERMAIN, « The ordinance of June 24, 2004 : reform or revolution ? », art préc.

* ⁵⁵ Law n° 2004-1343 of December 9, 2004, OJ n° 287 of December 10, 2004.

* ⁵⁶ The ordinance of June 24, 2004, like that of March 25, 2004, were ratified with some corrections. V.G. BARANGER, « The beautiful simplification of the right », Bull. Jolly 2005, p. 159.

* ⁵⁷ Decree n° 2005-112 of 10 February 2005 modifying the decree n° 67-236 of March 23, 1967, OJ n° 37 of February 12, 2005.

* ⁵⁸ A. Lienhard, « Reform transferable securities: presentation of the decree of application of February 10, 2005 », Dalloz 2005, p. 4.

* ⁵⁹ On these questions, v. P. CANNU, « Some problems of transitory right posed by the ordinance n° 2004-604 of June 24, 2004 », RTDC 2004, p. 537 ; ANSA, Note of the legal committee on the decree of February 10, 2005, September 8, 2004, n° 04-062.

* ⁶⁰ In accordance with the article 1st of the Civil code in its drafting resulting from the ordinance of February 20, 2004.

* ⁶² For an exhaustive talk of the provisions of the ordinance of June 24, 2004, v. P.D' HOIR, the reform of the transferable securities & new issues of capital, Option Finance 2005, out of the ordinary n° 5.

* ⁶³ Ordinary actions and actions preferably, which immediately give access to the capital of a company

* ⁶⁴ Convertible, refundable or exchangeable obligations in actions, goods of application for shares and all transferable securities made up giving access in the long term to the capital of a company.

* ⁶⁷ Initially, the definition of the transferable securities had been reserved by the legislator with the only field of the law of December 23, 1988 relating to undertakings for collective investment of transferable securities ; then, during coding to constant right of this text by the ordinance of December 14, 2000, it had been promoted with the row of general standard, with the article L. 211-2 C. my. end., but in the financial sphere only, the article L. 228-1 C. there not returning Com. Since the ordinance of June 24, 2004, a step moreover is crossed with this reference express to the article L. 211-2 C. my. end. carried out with subparagraph 2 of the article L. 228-1 C. Com. It results from it that the transferable securities emitted by the joint stock companies get along « titles emitted by them, transmissible by inscription in account or tradition, which confer identical rights by category and give access, directly or indirectly, with a share of the capital of the transmitting company or with a general right of credit on its inheritance. »

* ⁶⁸ V. however remarks raised by Mr. BANDRAC, P. BIROTHEAU, C. DEBIN, J. - P. DOM, S. GAILLET, F. ROQUAIS and Mr. SUPIOT, « The mode and the emission of the transferable securities after the ordinances of 2004 », art préc., spéc. p. 9. For Mr. FAVERO, « For an ambitious reform of the financial instruments », Practical Acts and engineering member, January-February 2004, p. 4, for which it would be appropriate to remove purely and simply the concept of transferable securities to the profit of the only concept of financial instrument, which would be divided into two categories : financial titles and financial contracts.

* ⁷² Art L. 228-1, Al 9 C. Com. - Until now, the transfer of property of nonallowed titles to the negotiations on a regulated market resulted from the only agreement on the thing and the price.

* ⁷⁵ Until now, no adequate procedure was offered to them in this case. The mode of sale of office, resulting from the decree of May 21, 1992, aims indeed only the specific assumption of the titles of personal form whose holders could not have been joined by the transmitting companies at the time of the dematerialization of 1984, and had not appeared since.

* ⁷⁷ The cases where it cannot be stipulated of approval (succession, liquidation of the marriage settlement, transfer either with a spouse, or with ascending or descendant) are more logically taken again after this principle.

* ⁷⁸ Art L. 228-24, Al 2 C. Com. : « yielding can constantly give up the transfer of its titles of capital or transferable securities giving access to the capital », which means that the repentance could be exerted not only after the notification of the refusal of approval, but also after the result of the expertise ; the shareholder who saw himself refusing approval could thus give up the transfer if the price fixed by the expert for the repurchase of the titles seems to him insufficient.

* ⁷⁹ The law seems in this case to reconsider the jurisprudence according to which the decision of the expert binds the parts definitively. - Case. Com., October 15, 1992 : JCP E 1993, I, 218, n° 13 and Case. Com., July 2, 1996 : Rev. plowshare 1997, 345, in connection with a limited liability company but transposable with SA (even business for the two stops). Mr. COZIAN, A. VIANDIER and F. DEBOISSY, Company law, COp préc., n° 698, wonder whether it is reasonable to create a right of repentance without matching it of a time.

* ⁸⁰ On this question, v. S. Sylvestre, « The regrouping of actions after the ordinance of June 24, 2004 : a missed occasion ? », Bull. Jolly 2005, p. 7

* ⁸² In any event, they are not current shareholders. For A. PIETRANCOSTA, « The protection of the holders of transferable securities giving access to the capital after the ordinance of June 24, 2004 », Dr. companies 2005, p. 7, they are not either shareholders by anticipation or comparable.

* ⁸³ On these questions, v. A. PIETRANCOSTA, « The protection of the holders of transferable securities giving access to the capital after the ordinance of June 24, 2004 », art préc. ; V. ALLEGAERT, « Property of the transferable securities », Bull. Jolly 2005, p. 340 ; P. GROSJEAN, « The reform of the mode of the transferable securities not - dimensioned : easing of the criterion of obligation of nominativity and unification of the rules of transfer of property », Small Posters 2005, n° 33, p. 7 ; A. GUENGANT, D. DAVODET, P. ENGEL and S. OF VENDEUIL, « Transferable securities giving access to the capital after the ordinance of June 24, 2004 », JCP E 2005, 1129.

* ⁸⁵ Mr. GERMAIN, « The ordinance of June 24, 2004 : reform or revolution ? », art préc.

* ⁸⁶ The law n° 69-12 of January 6, 1969 softens the mode applicable to the convertible obligations and the convertible bonds in actions. - The law n° 73-1196 of 27 December 1973 introduced the possibility for the companies whose titles are registered at the side official to carry out new issues of capital reserved for employees. - The law n° 81-1162 of December 30 1981 of French harmonization of laws of the joint stock companies with the second European directive allowed the board of directors or the directory to reduce the amount initially planned for the new issue of capital to the actually subscribed amount, under certain conditions. - The law n° 83-1 of January 3, 1983 on the development of the investments and the protection of the saver (I) introduced the presumption of realization of any new issue of capital since its good end is guaranteed in an irrevocable way by one or more credit institutions, (II) allowed the shareholders to give up on a purely individual basis their preferential duty of subscription, (III) allowed the general assembly, in the event of public call to the saving, to remove the preferential duty of subscription without indication of the name of the payee, (iv) removed the preferential duty of subscription on a purely reducible basis, without damage of the possibility for the general assembly of restoring it by a decision express, (v) created the new shapes of titles (certificates of investment, obligations with goods of application for shares, easing of the mode of the actions with priority dividend without voting rights) and (VI) reduced certain formal obligations related to the new issues of capital. - The law n° 85-1321 of 14 December 1985 modifying various provisions of the right of the transferable securities, of the negotiable evidences of indebtedness, the companies and the stock exchange transactions (I) introduced the whole of the articles L. 228-91 with L. 228-97 C. Com. widening the possible field of the hybrid transferable securities giving access to the capital, (II) harmonized the applicable rules in the event of insufficient subscription, (III) confirmed the possibility of removing the preferential duty of subscription without indication of the name of the payees in softener its conditions and (iv) the period of exercise of the preferential duties reduced of subscription.

* ⁸⁷ For the reflections carried out within the ANSA, and of MEDEF, v. http://www.ansa.asso.fr and http://www.medef.fr. V. also pH. BISSARA, the modernization of the mode of the issues of titles of capital, rep. préc. ; J. - P. MATTOUT, For a reform of the legal status of the obligations, report/ratio of the CNPF, October 1993 ; CNPF, For an in-depth reform of the company law, rep. préc. ; MEDEF, actions preferably : proposals of MEDEF for a modernization of the right of the transferable securities, rep. préc.

* ⁸⁸ V. pH. BISSARA, the modernization of the mode of the issues of titles of capital, rep. préc.

* ⁹⁰ PH. BISSARA, the modernization of the mode of the issues of titles of capital, rep. préc.

* ⁹¹ V. Bull. COB 2002, n° 371, p. 101, on the limits of the applicable mode before the ordinance of June 24, 2004.

* ⁹² According to the report/ratio with the President of the Republic, « the new provisions relating to the new issues of capital redefine the mode of the increases decided by the transmitters, while conferring a general range to him. They soften the methods of these new issues of capital by reducing the constraints which weighed on the delegations and the preferential duty of subscription, and envisage adaptations integrating the unification of the mode of the transferable securities giving access to the capital and of the creation of the category of the actions preferably. »

* ⁹⁶ According to the report/ratio with the President of the Republic, « this article is rewritten to widen the object and the range of the delegations authorized by the general assembly to the bodies of direction. The latter will be able, not only to define the methods of emission and to carry out the new issues of capital decided by the assembly, but still to decide themselves of increases, within the limit of a ceiling fixed by the assembly. This rule, which appreciably reinforces the role of the bodies of direction in the decision-making process of the new issues of capital, tends to introduce a greater flexibility in this field, by not imposing more the systematic meeting of the shareholders for each decision of increase. »

* ⁹⁷ G. TRÉMÈGE, Commission Report of Finances to the French National Assembly, n° 1349, p. 149, in connection with the reform of the mode of the new issues of capital by the law of August 8, 1994.

* ⁹⁸ Even if these ideas seem called into question today : Which future for the authorized capital ?, Acts of the conference organized by the Research center in financial right of the University Paris I, Dalloz, 2004, under dir it. of A. COURET and H. NABASQUE.

* ¹⁰⁰ The old article L. 225-129, V, of the Commercial law obliged the board of directors or the directory to account for the made uses by him of « authorizations » voted by the general assembly ; the provisions relating to the subdelegation with the president made it possible this last to postpone the new issue of capital ; and the article L. 225-135 of the Commercial law explicitly referred to the possibility for the general assembly « to authorize » a new issue of capital.

* ¹⁰¹ The body of direction to which the extraordinary general assembly can authorize a delegation is : the board of directors or the directory, according to the case, in SA, management in a SCA, the competent authority in accordance with the statutory provisions in SAS. In the following developments, it will be refers to « board of directors or directory » because of the terms of the articles L. 225-129 and following of the Commercial law ; but, by reference, these rules are also applicable to the SCA and SAS, with regard to their competent authorities.

* ¹⁰² Trémège REPORT/RATIO, rep. préc. : « Can on the other hand be delegated to the board of directors or to the directory, the capacities necessary to the material manufacture of the issue of titles : settlement of the date of opening and subscription closure, person nomination entitled to receive funds coming from the subscriptions, achievement of the formalities prescribed by the texts, possibilities of carrying out the emission in one or more time, observation of the realization of the increase and correlative modification of the statutes of the company ».

* ¹⁰³ Old art L. 225-129, III, Al 3 C. Com.: « [the extraordinary general assembly] can also delegate to the board of directors or the directory according to the case, capacities' necessary to the effect to carry out, in one or more time, the emission of a category of transferable securities, to fix the amounts, of to note the realization and to carry out the correlative modification of the statutes of them ».

* ¹⁰⁵ The ordinance removed the first subparagraph of paragraph III of the old article L. 225-129 according to which « the general assembly can fix itself the methods of each emission ». This precision was indeed useless, the first subparagraph of the same article giving him competence first to decide the new issues of capital.