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

(ii) Requirements of form and basic attached to the actions preferably

129. - There is initially a principle of form : the characteristics of the actions preferably must be mentioned in the statutes, as the article L. 228-11 has about it the Commercial law according to which « these rights [particular] are defined by the statutes ».

The direction of the rule is double. On the one hand, the thirds will be able to know the existence and the nature of the actions preferably, even still the identity of their recipients^266(*) by requiring of the clerk's office of the commercial court a specimen of the statutes of the company. In addition, the rights of the carriers are reinforced ; indeed, unlike the prerogatives only stipulated in a pact of shareholders, the particular rights of the actions preferably are opposable at the company and cannot be faded without a statutory modification and a decision of special assembly ; to some extent, they are institutionalized.

However, it should not be excluded that, in certain cases, publicity will be considered to be harmful with the interests of the shareholders and the company. The attraction of the pacts of shareholders undoubtedly does not stop with the institution of the actions preferably.

130. - There is, then, a basic principle, whose range is delicate to appreciate.

For the writers of the ordinance, « the major axis of the reform is a liberalization of the emission of the transferable securities »^267(*). Besides the article L. 228-11 of the Commercial law lets show through this will, since it evokes « particular rights of any nature » and that it enumerates certain restrictions relating to the voting rights- which we will further examine^268(*)-, which could mean that beyond those all is allowed.

Actually, it of it is nothing, because it must be held public suspense account of the company law^269(*). For example, being the financial rights, the action preferably is naturally subjected to regulations such as the prohibition of the leonine clauses or the prohibition of the clauses of fixed interest. In the same way, on the side of the nonpecuniary rights, it will be necessary to reconcile with principles as fundamental as that of the autonomy of the bodies of the limited company.

These illustrations show well that the article L. 228-11 of the Commercial law does not express a license to derogate from all the rules of the company law. The action preferably is an action emitted by a joint stock company, which imposes- except exemption authorized by the legislator, as it is the case for the voting rights- to comply with the imperative rules or principles controlling the companies and the actions. It will have thus preferably to be taken account of this constraint during the development of the particular rights attached to the actions.

* ²⁶⁶ Art 55, 5° of the decree of March 23, 1967  : the statutes of the company must contain the identity of the recipients of particular advantages and the nature of those, according to general rules' applicable to the granting of such advantages. However, the creation of the actions preferably gives place to the application of the procedure of the particular advantages when the actions are emitted with the profit of one or more shareholders designated by name, which will be often the case.

* ²⁶⁷ Rep. with the President of the Republic préc.

* ²⁶⁸ Infra Nos 152, 154.

* ²⁶⁹ Infra n° 243 and S. for a more detailed study.