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

(ii) The protective law and order of the thirds

248. - One finds here provisions of law and order which will tend to ensure the protection of the situation and the prerogatives of the thirds, so that the adjustment of the rights attached to the actions preferably is also limited here.

249. - As we saw, the nonpecuniary rights can give place to various installations^464(*). However, freedom will butt here against a fundamental principle which is that of the autonomy of the bodies of the limited company- principle also applicable to the SCA^465(*).

SA is characterized indeed by the hierarchisation of the bodies and the separation of the capacities : each body is equipped with capacities which are clean for him. It is the solution which the Supreme court of appeal recommended in 1946 in an important Motte stop^466(*) and which received a legislative dedication in 1966.

The consequences of this principle are numerous. It controls in particular the following solutions : incompetence of the assembly to come to a conclusion about a deliberation of the council^467(*), prohibition to create a committee of study equipped with competitor capacities of those of the council^468(*), prohibition to fix the president with the decision-making power of a third, was he the majority shareholder having advanced an important sum at the company^469(*).

If a right of veto or of management is attached to the actions preferably emitted, it will thus be necessary to take care not to go against the principle referred to above.

250. - Moreover, being the actions preferably conferring of the particular rights in a company third, subsidiary or company-mother of the transmitting company, they will be necessary to compose with rules as intangible as autonomy of the legal people or impossibility of conferring voting rights in the general assemblies on non-aligned^470(*).

251. - Lastly, one will note prohibition to transform an action, even preferably, in evidence of indebtedness^471(*), regulates expressed for all the titles of capital.

(iii) The law and order of the company law

252. - The company law contains a certain number of rules which, gathered, constitute an imperative block, i.e. provisions of law and order of which it must be necessarily held account. A certain number of clauses are thus considered not written, even registered in the statutes ; they are regarded as not existing, which explains in particular that the three years regulation aimed to article 1844-14 of the Civil code^472(*) does not play and that, in addition, the sanction does not have to be officialized by a decision of court^473(*).

253. - Side of the financial rights, the actions preferably are subjected to the prohibition of the leonine clauses^474(*), imperative regulation^475(*).

The particular right will not have to thus be such as it succeeds, mechanically and certainly, to deprive the carriers of the other actions of straight to dividend. It will not have to be either such as it preferably exonerates from any contribution to the losses the holder of actions^476(*).

254. - In addition, in all the commercial companies, it is interdict to stipulate a fixed or intercalated interest payable with associated even in the absence of benefit^477(*). It is moreover interdict to pay an installment on dividends, was this as priority dividend, in the absence of distributable benefit^478(*).

255. - Side of the nonpecuniary rights, there also exists of important restrictions. A certain number of clauses are thus considered not written and it will have preferably to be held of it account during the adjustment of the particular rights attached to the actions.

For example famous are not written : clauses restricting the free right of revocation of the social agents^479(*), the clauses expecting that the board of directors deliberates validly with less than half of his members^480(*), the clauses contravening the exclusive competence of the extraordinary general assembly to amend^481(*), etc

256. - Must also be respected the rules related with the proportionality between contribution and voting right when there exists^482(*) and the right for the shareholder to take part in the group decisions^483(*).

257. - In a general way, as an action, the actions preferably obey the general principles of the Commercial law and the Civil code. It will thus be advisable to compose with these various principles and rules during the issue of shares preferably and of installation of the particular rights which are attached there.

Some of these principles are softened when the transmitting company is SAS, for example the principle of autonomy of the bodies of the company. However, SAS is a social structure which, in itself, household already a very great flexibility, for example as regards multiple voting rights or right of intervention in management conferred on a third. The interest of the issue of shares preferably within the framework of SAS can consequently appear limited.

* ⁴⁶⁴ Supra Nos 147, 160, 199, 201.

* ⁴⁶⁵ This principle does not relate to SAS (art L. 227-1, Al 3 C. Com.)

* ⁴⁶⁶ Case. civ., June 4, 1946  : JCP 1947, II, 3518, Bastian NOTE.

* ⁴⁶⁷ Case. Com., May 18, 1982  : Rev. companies 1983, p .71.

* ⁴⁶⁸ CA Aix-en-Provence, September 28, 1982  : Rev. companies 1983, p. 773, note J. MESTRE. - Adde, Mr. COZIAN, A. VIANDIER and F. DEBOISSY, Company law, COp préc., n° 491.

* ⁴⁶⁹ Case. Com., June 11, 1965  : RTDC 1965, p. 861, obs. R. HOUIN.

* ⁴⁷⁰ Supra n° 189 and n° 190.

* ⁴⁷¹ Art L. 228-91 C. Com.

* ⁴⁷² Art 1844-14 C. civ.  : «  The actions for annulment of the company or posterior acts and deliberations to its constitution are prescribed by three years as from the day when nullity is incurred  ».

* ⁴⁷³ Case. 3rd civ., April 26, 1989  : Bull. civ. III, n° 93

* ⁴⁷⁴ Art 1844-1, Al 2 C. civ.  : «  the stipulation allotting to a associate totality profit gotten by the company or exonerating it from the totality of the losses, that excluding a associate completely from the profit or putting at its load totality losses famous are not written  ».

* ⁴⁷⁵ CA Paris, December 5, 1983  : Dalloz 1984, 392, obs. BOUSQUET  : the provisions of article 1844-1 of the Civil code apply as goods to the clauses envisaged in the statutes as with those which are in a posterior act.

* ⁴⁷⁶ V.B. MERCADAL and pH. JANIN, commercial Companies, COp préc., n° 712. Rappr. Th. BONNEAU, «  Of some stipulations affecting the dividend of the sectoral activities  », Banking RD and financier 2000, p. 151.

* ⁴⁷⁷ Art L. 232-15, Al 1st C. Com.

* ⁴⁷⁸ Art L. 232-12 C. Com.

* ⁴⁷⁹ Art L. 225-18, L. 225-47, Al 3 and L. 225-75, Al 2 C. Com.

* ⁴⁸⁰ Art L. 225-37 and L. 225-82, Al 1st C. Com.

* ⁴⁸¹ Art L. 225-96 C. Com.

* ⁴⁸² Supra n° 154.

* ⁴⁸³ Supra n° 3.