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

(1) Right of veto

161. - The question which installation is to know if the actions preferably can profit from a right of veto authorizing their holders alone to be opposed to certain decisions, even adopted by the general assembly of the shareholders in the majority necessary or the monitoring or board of directors.

162. - The developments will infra n° 163 and following only SA and the SCA concern. These rules of operation are indeed inapplicable at SAS, as the article L. 227-1 has which it, subparagraph 3 of the Commercial law. Also, it is possible to envisage, in this shape of company, a right of veto as well for the decisions of the bodies of management as for the group decisions of the associates^332(*).

163. - It is initially advisable to consider a right of veto to the general assemblies.

The utility of a right of veto for the holder of the action preferably can be conceived on several assumptions. For example, to avoid incurring the responsibilities for an administrator, the holder of the actions preferably- by assumption an investor in capital investment- could exclusively choose a right of veto applying in general assembly ; or, the minority holders of actions- preferably by assumption- could prevent the adoption of a resolution removing the preferential duty of subscription.

164. - The rules of quorum and majority according to whom the assemblies deliberate on shareholders^333(*) constitute provisions of law and order^334(*) whose non-observance is remainder sanctioned by the nullity of the deliberations taken^335(*). However, to preferably allot to the titular shareholder of an action the right to be opposed to such decision of the general assembly, it is enfreindre the above mentioned legal provisions and to attack the voting rights of the other shareholders.

The law attempts to preferably limit the rights likely to be allotted to the actions as regards vote^336(*). It results from it that, if there exists and when it is exerted, the voting rights attached to the actions preferably must comply with the rules which govern the voting rights from which all other actions profit.

Consequently, it would be illicit to preferably institute with the profit of the actions a right of veto to the assemblies general, even limited to certain operations and temporary^337(*).

165. - One can then think that the alternative would be to apply the right of veto to resolutions of the Board of Directors or of monitoring.

The report/ratio of the MEDEF of May 2001 on the actions preferably^338(*) mentions the possibility of granting such a right when the holders of these actions are associated the decision-making power by the attribution of a certain number of seats within the council. This thus supposes naturally as a preliminary that is organized the representation necessary of the carriers of actions preferably in the collegial body concerned^339(*).

166. - The texts applicable to SA offer more flexibility to arrange the rules of vote to the monitoring or board of directors that at the general assembly. Indeed, if the rules of quorum for the board meetings^340(*) or of monitoring^341(*) are imperative, the statutes can on the other hand arrange the rules of majority by envisaging a majority stronger than those of the members present or represented^342(*).

167. - The authors are unanimous on impossibility, for the particular right conferred by an action preferably, to consist of a general and final right to be opposed to resolutions of the Board of Directors or of monitoring. Indeed, the expression of the vote to the council concerns the law and order and it seems imperative that each administrator has a voice^343(*) ; to grant a right of veto final and general would amount calling into question this principle of individual and levelling vote.

168. - On the other hand, the authors are very divided on admissibility of a right of veto confined to certain precisely definite Council Decisions.

The ANSA and MEDEF consider that such a right is licit^344(*), and could in particular take one of the following forms : reinforced majority or unanimity with the monitoring or board of directors for the decisions concerned^345(*) ; right to obtain a new deliberation, this one having to intervene within a reasonable time (for example, within the limit of the current year)^346(*) ; prior agreement of the special assembly of the carriers of actions preferably for the decisions carrying reached to their interests^347(*). The ANSA specifies that these solutions must nevertheless observe certain conditions : the right of veto granted should not be against the social interest and it must be confined with certain precisely definite decisions. Certain authors also conceive this possibility, although issuing reserves^348(*)

Part of the doctrines expresses doubts on the possibility of a right of veto within the board of directors because of the collegial character of this body, because, on this assumption, the will of only one administrator would be enough to paralyze the operation of the council^349(*) .

More moderated, an author admits the attribution of a right of veto, but only on the questions concerned with the protection of the particular rights attached to the actions preferably^350(*).

On their side, certain authors explain that, since the law authorizes the statutes to require the unanimity for the decision-making of the monitoring or board of directors, one can be tempted to think that it is easy to institute a right of veto by this skew ; but they specify that the effectiveness of measurement would suppose to envisage the unanimity of the members in function and not of the members present or represented. However, such a stipulation famous would be not written since it would cause of enfreindre the imperative provisions which fix the quorum^351(*). Moreover, the stipulation of a reinforced majority necessarily including the vote of such administrator representing the holders of actions preferably appears very contestable because indirectly it amounts modifying the rule of the quorum. It will be thus necessary to take supplementary measures and in particular rules of strict convocations ; but one touches already with the other political rights.

* ³³² V.B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 1832.

* ³³³ Art L. 225-96 and L. 225-98 C. Com.

* ³³⁴ In this direction, for example, Lamy commercial companies 2005, n° 3704 and 3734  ; B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 11089.

* ³³⁵ Art L. 225-121, Al 1st C. Com.

* ³³⁶ Supra n° 154 and S.

* ³³⁷ ANSA, legal Committee, opinion n° 05-002 of January 5, 2005  ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1162. 

* ³³⁸ Rep. préc., p. 7.

* ³³⁹ Infra n° 76.

* ³⁴⁰ Art L. 225-37, Al 1st C. Com.

* ³⁴¹ Art L. 225-82, Al 1st C. Com.

* ³⁴² Art L. 225-37, Al 2 and L. 225-82, Al 2 C. Com.

* ³⁴³ ANSA, legal Committee, opinion n° 05-002 préc. ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1162; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 516. 

* ³⁴⁴ ANSA, legal Committee, opinion n° 05-002 of January 5, 2005.

* ³⁴⁵ In this way, the holder of the actions preferably cannot see himself imposing a decision against his liking.

* ³⁴⁶ In other words, this right of veto actually makes it possible only to suspend a Council Decision and to subject it to a new deliberation, which should intervene within a reasonable time, e.g. within the limit of the current year.

* ³⁴⁷ For example, the decision to yield the branch of industry on which the rights of the carriers are exerted.

* ³⁴⁸ 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  : «  are posed, like before at the time of the stipulation of such rights in the extra-statutory acts, the questions relating to the interference of the recipients in the management of the company (leader in fact) and to the respect by the latter of the social interest of the company  ».

* ³⁴⁹ B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 18184  ; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 516  : «  the formula appears problematic to us because it leads to confer on a member of the council a contrary capacity to the law. It is difficult to admit that the operation of a collegial body is paralyzed by only one will  ».

* ³⁵⁰ A. VIANDIER, «  Actions preferably  », art préc., p. 1532, which admits a right of veto on the acts concerning the credits of which the financial rights of the actions depend preferably.

* ³⁵¹ A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  », art préc., p. 1162.