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

c) The particular case of the groups of companies

182. - According to the article L. 228-13, subparagraph 1st of the Commercial law : « The particular rights mentioned to the article L. 228-11 can be exerted in the company which has directly or indirectly more half of the capital of transmitting or in the company whose transmitting one has directly or indirectly more half of the capital ».

183. - The article L. 228-13 thus allows, within a group of companies, to preferably dissociate the localization of the issue of the shares of the place of exercise of the particular right attached to these actions.

This text constitutes one of the most important innovations and most original of the ordinance of June 24, 2004. With him, the development of a French right of the companies crosses a new step.

184. - However, reading of the text « plunge the interpreter, even won over to any effort of creation legal or financial, in perplexity, perplexity worsened as well by the dumbness of the above mentioned report/ratio of the MEDEF as of the report/ratio to the President of the Republic, which is limited to state that the particular rights which match the actions preferably can be exerted with the center « of a company of the group », which amounts paraphrasing the article L. 228-13, subparagraph 1st »^361(*).

With the reading of the text, all the particular rights likely to be exerted within the transmitting company itself^362(*) appear likely to be exerted within a company third member of the group. The freedom offered by the article L. 228-13 encounters however certain difficulties resulting from the application of the principles of the company law and more particularly of the general principle according to which the exercise of the political rights and the financial rights is related to the quality of associate^363(*).

185. - It is thus advisable to examine the applicable principles on the matter (I) in order to consider the rights which can be exerted in the third company (II)^364(*).

(i) Principles applicable to the exercise of particular rights in a third company

186. - Initially, it is necessary to insist on the fact that the particular rights attached to the actions preferably emitted within the framework of a group are exerted « in » the third company^365(*). It is there a significant difference with the actions reflection which, they, do not comprise any right with regard to the subsidiary company whose results are used only to calculate the financial income of the actions, the dividend thus calculated due and being perceived to the only level of the transmitting company. It is thus advisable here not to take as a starting point this type of action.

187. - In the second place, contrary fault of precision in the article L. 228-13 of the Commercial law, it is perfectly possible to cumulate the particular rights. One can thus conceive actions preferably which will enjoy at the same time, or alternatively, of rights particular to the level of the transmitting company and the level of the third company.

188. - These made observations, certain obstacles are, seems it, to prevent so that the possibility offered by the article L plays fully. 228-13. These points however give place to very divergent doctrinal interpretations. Also, any legal insecurity will not be isolated as long as the Supreme court of appeal will not have discussed the raised considerations.

189. - First of all, the debates crystallized on the need or not for being associated third company so that the particular rights of a financial or political nature can be exerted there.

The majority of the authors leave the postulate according to which to enjoy the rights of a associate... it is necessary to be associated. Also, on the assumption that the carrier of actions preferably would not be associated a third company but shareholder of the transmitting company, one could not stipulate, for example, the participation with deliberative voice of the carriers of actions preferably in the assemblies of the third company ; one could not more admit that the financial rights recognized to the carriers of the same actions have the legal nature of dividend^366(*).

The legal Committee of the ANSA^367(*) admits that under article L. 225-122 of the Commercial law, to which the article L. 228-11 returns, a share of capital must be necessarily held to be able to express a vote ; that the voting rights remain intrinsic with the quality of shareholder and that only a provision express of the law can authorize its autonomy^368(*). It concludes some then also on the impossibility of offering voting rights in a company belonging to the group of the transmitting company, in which the holder of the actions preferably is not personally shareholder. On the other hand, it estimates that there is less of obstacles to the attribution of emoluments- in particular of the dividends- within this framework.

Certain members of the legal Committee of the ANSA are further considering than the article L. 228-13 of the Commercial law is an undeniable element of a new right of the groups and constitutes an exemption express from the article L. 228-11. For them, the detention of a share of capital which remains essential under the terms of this article can exist only in the transmitting company- for example, the company-mother. Except with saying that the ordinance sets up a legal entity at the level of the group- «  what tolerable would not be operated on the run »^369(*)-, this interpretation appears however not very careful in the current state of the right.

190. - Then, and the authors agree on this point, it agrees to respect, on the one hand, legal autonomy of the third company and, on the other hand, except for SAS^370(*), the autonomy of the social bodies of this third company.

That consequently makes impossible the recognition of a right of management or decision or veto to the profit of the shareholders preferably ; but that does not prohibit to them to authorize a right of opinion to them and to regulate the financial consequences of a social decision made against their opinion. ^371(*)

191. - Lastly, the respect of the social interest of the third company appears imperative. To agree of the rights on a juridically independent company which belongs to the same group, upstream or downstream, that the transmitting company, is a thing ; but still it is necessary that the interests of the third company, and minority, are not sacrificed without counterpart.

On this point, while reasoning as regards joint stock companies, one could find elements of inspiration of with dimensions of the interest of group, as appreciated by jurisprudence on the abuse goods or capacities^372(*), or on the side of the analysis of the services intra-group^373(*) or the side of the tax concept of abnormal act of management^374(*).

192. - It must in addition be specified that the exercise of the rights within the third company is conditioned with the existence of the majority bond in capital imposed by the article L. 228-13 of the Commercial law.

In other words, the majority bond between the transmitting company and the company in which the particular rights are exerted preferably owe perdurer during all the lifespan of the actions since it constitutes a condition of the issue of such shares^375(*).

The law is however dumb on the consequences of the possible disappearance of this bond. Certain authors think that, in this case, it should then be considered that the actions preferably emitted become null and void. It will be thus necessary, in the contract of emission, to carefully stop the consequences of such an established fact, for example by envisaging the conversion or the automatic repurchase of the actions preferably considered, according to prefixed financial methods'. In the absence of stipulations of this nature, it appears in any event not easily conceivable that in practice, a change of control of the third company can be carried out without being regulated the fate of the particular rights which are exerted there, attached to transferable securities emitted by another company.

193. - The article L. 228-13 of the Commercial law thus invites to traverse a labyrinth, and a particular prudence must govern the adjustment of the particular rights.

* ³⁶¹ A. VIANDIER, «  Actions preferably  », art préc., p. 1532.

* ³⁶² Supra n° 131 and S.

* ³⁶³ On the whole of this question, v. A. COURET and H. NABASQUE, transferable Securities- New issues of capital- Nouveau mode- Schedule of March 25 and June 24, 2004, COp préc.  ; A. VIANDIER, «  Actions preferably  », art préc.  ; ANSA, legal Committee, opinion n° 04-080 of December 1, 2004  ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts (2nd part)  », JCP E 2005, 1086  ; 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. 

* ³⁶⁴ On the conditions of issue of the shares preferably within a group of companies, v. will infra n° 138 and S.

* ³⁶⁵ The initial text of the ordinance of June 24, 2004, by an inadvertency of the legislator, had «the company» and not «in the company»; this material error was corrected by the law n° 2004-1343 of December 9 2004 of simplification of the right, whose article 78-XXVII ratifies the ordinance.

* ³⁶⁶ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1533  ; A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 530-2  ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts (2nd part)  », art préc., p. 1215  ; 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. 14  ; P.D' HOIR, the reform of the transferable securities & new issues of capital, COp préc.

* ³⁶⁷ ANSA, legal Committee, opinion n° 04-080 of December 1, 2004. 

* ³⁶⁸ For example, art L. 225-110 C. Com. for the usufructuary.

* ³⁶⁹ G. BARANGER, «  The beautiful simplification of the right  », art préc., p. 161.

* ³⁷⁰ The article L. 227-9, subparagraph 1st of the Commercial law lays out indeed that «  the statutes determine the decisions which must be made collectively by the associates under the forms and conditions that they provide  », subject to some exceptions enumerated with subparagraph 2 of the article.

* ³⁷¹ A. VIANDIER, «  Actions preferably  », art préc., p. 1533. 

* ³⁷² On this jurisprudence, v. Mr. COZIAN, A. VIANDIER and F. DEBOISSY, Company law, COp préc., n° 1338 and S.- That will result in checking the existence of an economic interest or financier between the transmitting company and the company third, exceeding the only bond in capital, and founded on a policy worked out by the whole of the group, to still seek if the third company which supports the particular rights, enjoys or will enjoy balanced counterparts, and to make sure finally that the continuity of exploitation of the debtor company of the particular rights is not threatened.

* ³⁷³ CA Paris, January 25, 2002  : JCP E 2002, 851, n° 7, obs. A. VIANDIER and J. - J. CAUSSAIN  : there should not be disproportion between the provided services and the royalties paid n the other hand.

* ³⁷⁴ V. in particular EC, 9th and 10th pennies. Joined together, November 23, 2001  : Bull. Jolly 2002, p. 362, in connection with the distribution of the losses between a subsidiary company and his/her mother  ; Adde Mr. COZIAN, great principles of the taxation of the companies, Litec, 1999, 4th ED., p. 91 and S.

* ³⁷⁵ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1533  ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts (2nd part)  », art préc., p. 1217.