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

(1) The deprivation and the suspension of the voting rights

149. - Deprivation of the voting rights temporarily. The action preferably can be private voting rights temporarily. In this case, for example, the voting rights can be removed until a date fixed in advance or the possible occurence of a future event.

150. - Deprivation of the voting rights on a purely permanent basis. When the action preferably is private voting rights on a purely permanent basis, the title created is comparable with the certificate of investment envisaged by the old legislation.

151. - Suspension of the voting rights. The voting rights can be suspended, for one given or determinable duration.

Up to now, the law held the suspension of the voting rights like a sanction^297(*). The suspension of the voting rights also makes think of « clause of training course », which prevents the new shareholder from voting during the first years of its entry in the company.

152. - Limits with the deprivation and the suspension of the voting rights. It is limits of legal, jurisprudential and financial origin with freedom to preferably remove or suspend the voting rights attached to the actions.

The limits of legal origin are double. On the one hand, the article L. 228-11, subparagraph 3 of the Commercial law lays out that « the actions preferably without voting rights cannot represent any more half of the authorized capital and, in the companies whose actions are allowed with the negotiations on a regulated market, more of the quarter ». The authors are divided on the range of this measurement ; some estimate that to give full effect to the legal restrictions, it is appropriate to take into account, under the actions preferably without voting rights, obviously those for which the voting rights are completely removed, but also those for which the deprivation of this right is only partial or temporary^298(*) ; others estimate that it is necessary moreover to preferably take into account the actions for which the voting rights are suspended^299(*) ; as for the titles which must be taken into account for the calculation, contrary fault of precision, it acts of the totality of the titles of emitted capital, some they, temporarily, would be deprived of the voting rights, like the car-held actions or the actions exceeding a legal or statutory threshold for the crossing of which the necessary declarations would not have been carried out^300(*). In addition, an author^301(*) wonders about the made reference, with the first subparagraph of the article L. 228-11 of the Commercial law, with the article L. 225-122 of the same Code^302(*), which poses the principle of proportionality between the action and the voting rights^303(*). He writes : « contradiction is thus bright : on the one hand, the ordinance expressly envisages the possibility of removing the voting rights and, on the other hand, it refers to a text imposing the maintenance of at least a voice per action ». If the author thinks nevertheless that the reference to the report transmitted to the President of the Republic^304(*) and the teleological interpretation of the text^305(*) are likely to draw aside concerns as for this obscure point of the text, it underlines rightly that one is unaware of which will be the position of the Supreme court of appeal.

Another limit, finding its source in a recent jurisprudence relating to the voting rights of the usufructuary^306(*), could find to apply, according to certain authors^307(*). The Supreme court of appeal indeed stated which 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, still limiting the room for maneuver of the shareholders as for the distribution of the voting rights between the usufructuary and the bare owner while at the same time the law authorizes the associates expressly to arrange this distribution freely^308(*). Also, these authors stress that this jurisprudence is « likely to attach the creativity of the transmitters »^309(*) relative with the suppression of the voting rights^310(*). However, it will be observed that since the voting rights are removed, the suppression applies to the action preferably, whatever the legal quality of that which exerts the particular rights, that it is usufructuary or bare owner ; consequently, the usufructuary could not have any more rights that the title object of its usufruct does not carry from there, above-mentioned fears then having to be isolated^311(*).

Lastly, one can wonder about the relevance of new logical founded by the ordinance, insofar as a limit, of financial and practical origin, could, according to some^312(*), to come to preferably decrease the interest of the actions without voting rights. Indeed, to deprive the investor of his voting rights amounts requiring of him to invest in the company without however dealing with its management, to even keep silent itself ; however, the voting rights- right of criticism- have a value. If the investors give up it, of the financial advantages will have to be granted to them. One can then expect to see appearing actions preferably resembling curiously actions priority dividend without voting rights. However, it could be noted today that these titles were not hoped success. It should be hoped that the combinative possibilities much larger than preferably offer the actions compared to old actions to priority dividend without voting rights will draw aside these concerns.

153. - Sanction in the event of violation of the legal ceiling. The article L. 228-11, subparagraph 4 of the Commercial law specified the consequences of the transgression of the ceiling fixed at the article L. 228-11, subparagraph 3 : « Any emission resulting in carrying the proportion beyond this limit can be cancelled. »

It is a faculty of cancellation, which implies also a faculty not to cancel. One is then brought to wonder about the real consequences of a going beyond of the ceiling. It is not possible that the judge, substituent with the statutes or the extraordinary general assembly of the shareholders, restores the voting rights. Consequently, one can conclude from it that the actions preferably, validly emitted, will continue to carry the particular rights envisaged during the emission although they represent more half- or quarter, according to case's- of the authorized capital. One can then imagine that the judge will not pronounce cancellation if the overtaking is limited or if the cancellation of the emission is likely to cause an irremediable injury at the company, for example if the actions preferably are the central part of a financial rescue plan of the company^313(*).

* ²⁹⁷ For example, art L. 227-17 C. Com. relating to the exlusion of a associate within SAS, art L. 233-14 C. Com. relating to the obligation of declaration of crossing of threshold.

* ²⁹⁸ A. VIANDIER, «  Actions preferably  », art préc., p. 1531. Countered, Th. MASSART, «  Actions preferably and the question of the voting rights  », in the new right of the transferable securities after the reform of June 24, 2004, art préc., p. 84  : «  The literal reading of the text invites to admit that this new provision relates to only the actions for which the voting rights are completely removed  ». The author thinks that, of the blow, this limit will never be essential in practice because, «  even to the United States or in Great Britain, the actions preferably give voting rights for the resolutions relating to the assignment of the results  »  ; it adds that, in addition, any carrier of an action preferably will have, at all events, necessarily voting rights since the new article L. 228-19 of the Commercial law lays out that «  the carriers of actions preferably, made up in assembly special, have faculty to give mission to the one of the auditors of the company of preferably drawing up a special report/ratio on the respect by the company of the particular rights attached to the actions  ».

* ²⁹⁹ A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1161.

* ³⁰⁰ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1531.

* ³⁰¹ Th. MASSART, «  Actions preferably and the question of the voting rights  », art préc., p. 84.

* ³⁰² Art L. 228-11, Al 1st  C. Com.: «  These rights are defined by the statutes in the respect of the provisions of the articles L. 225-10 and L. 225-122 in L. 225-125  ».

* ³⁰³ Art L. 225-122 C. Com.  : «  each action gives right a voice at least. Any contrary clause famous is not written  ».

* ³⁰⁴ Rep. préc.

* ³⁰⁵ The finality of the text is to create a certain number of titles without voting rights. One thus should not take the text with the letter, under penalty of reducing of entry of play the range of the reform undertaken.

* ³⁰⁶ Case. Com., March 31, 2004  : JCP E 2004, 929, note A. RABREAU  ; Adde, A. VIANDIER, «  Irreducible voting rights of the usufructuary  », RJDA 2004, p. 859.

* ³⁰⁷ A. LIENHARD, «  Presentation of the ordinance reforming the transferable securities  », Dalloz 2004, p. 1959  ; Th. MASSART, «  Actions preferably and the question of the voting rights  », art préc., p. 84.

* ³⁰⁸ Art L. 225-110 C. Com.

* ³⁰⁹ A. LIENHARD, «  Presentation of the ordinance reforming the transferable securities  », art préc., p. 1959.

* ³¹⁰ Th. MASSART, «  Actions preferably and the question of the voting rights  », art préc., p. 84, are further stressing that like the German right, the Supreme court of appeal could eliminate any suppression from the voting rights of the shareholder to the reason that article 544 of the Civil code would be opposed so that the shareholder, whatever his quality, is private of his voting rights

* ³¹¹ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1531.

* ³¹² V. Th. MASSART, «  Actions preferably and the question of the voting rights  », art préc., p. 84.

* ³¹³ V.A. VIANDIER, «  Actions preferably  », art préc., p. 1531.