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

(2) Rights of a political nature

201. - Right of veto or of decision. By application of the principle of the hierarchy of the bodies, such a right seems excluded^387(*), except if the third company is SAS^388(*).

202. - Right of control. It is possible to preferably envisage the consultation of the shareholders for certain social decisions of the third company, as from the moment when the opinion of the aforesaid shareholders does not bind the latter but can start financial consequences if it is not followed for example^389(*).

203. - Right of information or communication. The rights of information present less difficulties, provided however respect of certain principles- respect of the social interest, professional secrecy, information limited to what is necessary to the protection of the carriers of actions preferably.

Consequently, one can consider a right recognized to the special assembly of diligenter one to that, or an expertise on a particular operation. One can also think of a right of consultation or communication of the social documents, to a right of questioning, etc

204. - The introduction of the actions preferably in France touches the company law in its heart ; not only this new financial instrument offers it possibilities which could not be implemented until there, but still shakes it the great principles of the French right of the companies.

The commentators- doctrines and experts- provided a work of legal interpretation thorough to preferably clarify the provisions relating to the contents of the actions ; but force is to note that it will be necessary to await the standpoint of the courts on a number of obscure points raised by the new texts. They are the same being oneself the provisions relating to creation of the actions preferably.

* ³⁸⁷ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1534  ; 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. 

* ³⁸⁸ Supra n° 200.

* ³⁸⁹ Naturally, these consequences should not be disproportionate and thus dissuasive.