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

(2) The exercise and adjustments of the voting rights

154. - Imperative legal provisions. The law is also interested in the actions preferably profiting from the voting rights and precise that the imperative legal provisions which control the voting rights them are applicable^314(*).

They are there the general rules applicable to all the titles of capital : the voting rights attached to the pleasure or senior shares are proportional to the share of capital which they represent and each action gives right a voice at least^315(*) ; voting rights double can nevertheless be instituted by the statutes under the conditions fixed by the law^316(*) ; the statutes can, contrary, to limit the number of voices whose each shareholder has without distinction category^317(*).

The article L. 228-11 of the Commercial law returns thus to the provisions classically applicable to SA and the SCA. The fact that these companies, when they emit actions preferably, must continue to comply with these regulations thus does not lend matter to debates. On the other hand, the application of these texts is in theory isolated when the transmitting company is SAS^318(*) ; certain authors conclude from it that the restrictive provisions referred to above would consequently not apply, by exception, when actions preferably would be emitted by SAS^319(*). This alternative interpretation seems hazardous ; it is correlated by no argument of text^320(*). As, it should be considered as the imperative legal provisions of the articles L. 225-122 with L. 225-125 of the Commercial law are applicable, in addition to with SA and the SCA, also at SAS when those emit actions preferably^321(*).

Thus, within the joint stock companies, null action preferably cannot be created with the benefit of rights which would derogate from these rules, hardly of nullity^322(*).

155. - Possibilities of reinforcing the voting rights. The actions preferably can profit from voting rights double, under the conditions envisaged with the articles L. 225-123 and L. 225-124 of the Commercial law. That does not raise any discussion.

On the other hand, the attribution of multiple voting rights raises questions. The very large majority of the authors consider that it would be illicit to preferably create actions with voting rights plural^323(*), this constituting a violation of the legal provisions referred to above. An author^324(*) wonders however about this possibility ; he writes : « the article L. 225-122 specifies that each action at least gives right voting rights. It is thus possible, to read these texts, to envisage multiple voting rights. In the event of double vote, it would be enough to respect the provisions of the article L. 225-123, but in the event of higher vote, no rule would be imposed ! ». This interpretation, although deserving reflection, appears to us nevertheless hazardous.

156. - Possibilities of putting a ceiling to the voting rights. The statutes can contain a clause limiting the number of voices of which each shareholder lays out in the assemblies. The doctrines appear divided on the faculty offered by the actions preferably to stipulate a levelling off of the voting rights.

Professor Viandier estimates that, since the article L. 228-11 of the Commercial law authorizes the absence of voting rights, it necessarily makes it possible to practice a levelling off which would apply only to the actions preferably, since that amounts removing the voting rights for the actions exceeding the ceiling^325(*).

On the other hand, other authors take the party reverses and conclude so that any levelling off from the voting rights not carrying that on actions preferably is excluded^326(*). They doubt indeed this possibility because of the terms of the article L. 225-125 of the Commercial law^327(*), of which it should be deduced from it that the actions preferably constitute a class of shares well and that it thus does not seem reasonable to consider this levelling off, insofar as it should then apply to all the actions whatever their category.

157. - Possibilities of only limiting the voting rights to certain resolutions. The voting rights attached to the actions preferably can be exerted only at the time of certain decisions, for example in the ordinary general assemblies but not in the extraordinary general assemblies, or conversely.

One can also hold the voting rights to certain precisely definite decisions the such assignment of the result, the distribution of reserves, the appointment of the members of the body of administration or monitoring, the transformation of the company. The actions preferably with American and English are consequently conceivable, i.e. actions for which always remains voting rights, at least for the assignment of the results and the attribution of dividends.

On the other hand, in the special assemblies joining together each class of shares preferably, the voting rights remain, by principle, full and entirety for each shareholder.

Moreover, certain particular assumptions suitable for the right of the goods or the contract law must be reserved, like in particular the dismemberment of property of the actions preferably^328(*) or the setting in trust of these actions.

158. - Impossibility of preferably creating actions to which the voting rights would be only allotted. The authors agree to think that it is not possible to preferably create actions with only governmental prerogatives for, to some extent, of imitating the certificates of voting rights^329(*).

This position is justified by the fact that the actions preferably are by nature of the titles of capital ; they thus remunerate a contribution which could not be private of any remuneration, whatever is the form. Failing this, the conditions would be met to make applicable the prohibition of the pacts leonine. Moreover, in the absence of text, and as it seems difficult to insert the certificates of voting rights in the definition of the transferable securities since they do not give any right of access to the capital or on the inheritance of the company, it seems that in the current state of the right their creation is held for illicit.

However, financial engineering, to arrive at the same result, will certainly be tempted to create actions with nominal very weak, conferring the same voting rights as the ordinary actions^330(*).

159. - The suppression, the suspension and the adjustment of the voting rights, for a given or determinable time, made possible or liberalized by the ordinance of June 24 2004 offer great possibilities thus. From now on, without taking the complicated way of the actions from priority dividend or the certificates of investment, one can emit titles of capital not-voters.

Generally, one can expect that the voting rights are cut on the owner of the financial particular rights, the safeguard of these advantages justifying that voting rights are or not recognized, even temporarily. The same observation can be made for the rights of a political nature others as the voting rights.

(iii) Particular rights of a political nature

160. - The at the very least general formula of the article L. 228-11 of the Commercial law- the granting of « particular rights of any nature » - the way with the possible adjustment of very many rights opens^331(*), of which some, without seeking exhaustiveness, come easily to mind (2). The significant question of the right of veto however raised many debates (1).

* ³¹⁴ 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  ».

* ³¹⁵ Art L. 225-122 C. Com.

* ³¹⁶ Art L. 225-123 and L. 225-124 C. Com.

* ³¹⁷ Art L. 225-125 C. Com.

* ³¹⁸ Art L. 227-1 C. Com.

* ³¹⁹ In this direction, A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1162  ; 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., p. 12.

* ³²⁰ V.G. OF TERNAY, «  SAS and actions preferably  : modus operandi  », JCP E 2005, 568.

* ³²¹ On the interest of the issue of shares preferably by SAS, v. will infra n° 260 and S.

* ³²² Art L. 235-2-1 C. Com.

* ³²³ A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1162  ; 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., p. 12  ; A. VIANDIER, «  Actions preferably  », art préc., p. 1531  ; Mr. COZIAN, A. VIANDIER and F. DEBOISSY, COp cit. n° 521 and n° 533  ; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 505  ; B. MERCADAL and pH. JANIN, commercial Companies, COp préc.  ; G. OF TERNAY, «  SAS and actions preferably  : modus operandi  », art préc., n° 8.

* ³²⁴ Th. MASSART, «  Actions preferably and the question of the voting rights  », art préc., p. 84.

* ³²⁵ A. VIANDIER, «  Actions preferably  », art préc., p. 1531.

* ³²⁶ 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., p. 13  ; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 504-2.

* ³²⁷ Art L. 225-125 C. Com.  : «  The statutes can limit the number of voices of which each shareholder lays out in the assemblies, under the condition that this limitation is imposed on all the actions without reference to category, others that actions with priority dividend without voting rights  ».

* ³²⁸ Supra n° 152.

* ³²⁹ V. Th. MASSART, «  Actions preferably and the question of the voting rights  », art préc., p. 84  ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1162.

* ³³⁰ The risk of a sanction to the title of the prohibition of the leonine pacts is not isolated for as much.

* ³³¹ V. MEDEF, actions preferably  : proposals of MEDEF for a modernization of the right of the transferable securities, rep. préc.  ; ANSA, AFEP and MEDEF, For a modern right of the companies, rep. préc.