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

B. The protection of the shareholders at the time of certain operations

342. - As of its birth and until its death, natural or not, the life of a company is strewn with various events, the ones of minor importance, the others more significant. The company is connected consequently in a city, in which the citizens- the shareholders- are equipped with certain governmental and financial prerogatives. If the construction of the city constitutes a date outstanding with the eyes of those which built it, of many other episodes will mark its history, the such enlarging of the city with the arrival of new citizens, the departure of some, even the bringing together with another city.

343. - Certain events intervening during the social life will have necessarily consequences on the rights of the citizen-shareholders. Consequences which will not be always positive. Consequently, it is advisable to be concerned with situation of the shareholders and, therefore, protection of their rights.

344. - In addition to they intended to set up certain protective measurements of the shareholders during the creation and of the disappearance of the actions preferably, the writers of the ordinance of June 24 2004 also founded certain protective provisions of the shareholders preferably at the time of certain operations suitable for affect their rights. There one sees still the necessary counterpart there to the freedom granted by the new mode set up.

345. - The second aspect of the reform- the easing of the right of the new issues of capital- carries the same observations. In particular the widening of the delegations to the bodies of direction as regards new issue of capital, if it brings flexibility and reactivity increased to the transmitters, could not have been conceived without a certain protective device of the rights of the shareholders. The abandonment, by the extraordinary general assembly of the shareholders, some of its prerogatives to the profit of the bodies of direction is certainly a voluntary act ; the shareholders organize themselves the adjustment of their rights in the direction of the restriction. But that does not want to say in so far as any preoccupation with a protection is then isolated for the continuation.

346. - Also, the protection of the shareholders at the time of certain operations, in the course of social life, brings to preferably consider the protective device set up with regard to the shareholders (1), like as regards new issues of capital (2).

1. Protective measurements of the carriers of actions preferably

347. - After having emitted actions preferably, the transmitting company supports certain constraints from which the finality is to protect the carriers of the aforesaid actions.

The protection of the shareholders preferably is duplicated in a specific right of information (b) and specific provisions at the time of certain particular operations (A).

a) The protection of the shareholders preferably at the time of specific operations

348. - Within SA and SCA, the carriers of actions preferably profit from the unchanged general rules which govern the special assemblies titular shareholders of titles of capital of a given category^643(*).

349. - This protection, whose object is the maintenance of the particular rights whose actions preferably are matched, is ensured by the article L. 225-99, subparagraph 2 of the Commercial law, under the terms of which « the decision of a general assembly to modify the rights relating to a class of shares is final only after approval by the special assembly of the shareholders of this category ». In other words, the general assembly of the transmitter could not modify the rights relating to a class of shares without the approval of the special assembly of the shareholders of this category.

350. - In practice, this rule invites to be attentive with the consequences of any operation of statutory nature or not which could cause to modify their rights.

However, only the legal modifications call a decision of the special assembly^644(*), the such suppression of one of the particular rights attached to the action preferably. On the other hand, is not subjected to the approval of the special assembly a change of the strategy of the company likely to affect the results. Between those two poles, there is a zone « gray », thus of a decision of management aiming at more not privileging the development of a branch of activity whose results preferably constitute the plate of the financial rights of the shareholders.

It will be thus advisable to specify in the statutes, as clearly as possible, the incidence of the social decisions, if one wants to make the saving in useless baffles.

351. - Within SAS, the situation is less clear. Certain commentators^645(*) estimate that the general rules of the article L. 225-99 of the Commercial law are excluded from the mode of SAS, pursuant to the article L. 227-1 of the same Code. It thus rests with the statutes to establish special assemblies equipped with the same competence as that allotted to the special assemblies of SA and SCA, if the carriers pareillement intend to be protected.

We are not convinced by this approach. At least, we estimate that the creation of a special assembly of the carriers of actions preferably is not a faculty for the company, but an obligation ; this opinion is corroborated besides by the article L. 228-19 of the Commercial law instituting a right of information to the profit of the shareholders preferably, which starts thus : « carriers of actions preferably, made up in special assembly, [...] ». In the spirit of the writers of the ordinance of June 24, 2004, the protection of the holders of actions preferably is a need and it passes inter alia, seems to us it, by the meeting of these carriers within a special assembly whose finality is the defense of their rights. Moreover, the article L. 228-17 of the Commercial law specifies that in the event of fusion or of scission of the transmitter, « in the absence of exchange counters actions conferring of the equivalent particular rights, fusion or the scission is subjected to the approval of the special assembly envisaged with the article L. 225-99 ». This text would be in any assumption applicable to SAS, just like are it, by exception, the texts relating to the voting rights when SAS creates actions preferably^646(*).

Far from repealing the article L. 225-99 of the Commercial law relating to the actions of categories, the ordinance of 24 June 2004 made there, on the contrary, expressly reference. The doctrines^647(*) agree moreover to consider that the action preferably is a class of shares, and that it profits, so of the mode of protection which is attached to him, and this whatever the shape of joint stock company- SA, SCA or SAS- in which it is emitted.

352. - The ordinance also institutes particular rules of protection in the event of damping or modification of the capital of the transmitter (I) and in the event of fusion or scission causing the winding-up of the transmitting company (II).

(i) Fate of the actions preferably in the event of damping or modification of the capital

353. - The Commercial law envisages specific provisions in the event of damping or of modification of the capital of the transmitter, i.e. any operation which assigns to the rise or the fall the authorized capital.

It is thus, for example, of the new issues of capital whatever is the cause : cash subscription, in kind or resulting from a fusion, conversion of titles of capital into other titles of capital, emission of option of subscription, attribution of bonus shares to emit, etc ; and of the reductions of capital whatever is the cause : withdrawal of the associates, reduction due to losses, conversion, etc

354. - The article L. 228-16 of the Commercial law lays out whereas, in these cases there, « the extraordinary general assembly preferably determines the incidences of these operations on the rights of the carriers of actions » and specifies that « these incidences can also be noted in the statutes ».

355. - These provisions miss clearness, their formulation being ambiguous. Several questions arise.

Initially, one can wonder why the legislator was not satisfied to make to reference to the general rules applicable to the special assemblies shareholders, i.e. in particular the article L. 225-99 of the Commercial law. Some^648(*) see the permission express given there to stipulate the incidences of the operations aimed in the statutes, which causes in theory to avoid the meeting of a special assembly ; if such is the advantage conceded by the writers of the ordinance, it would have then direction only to affirm that such operation is without impact on the the law of the carriers of actions preferably since, if such is the case, the special assembly is not obligatory in theory^649(*).

Another question emerges then from the start : the formulation of the article L. 228-16 wants it to say that the assembly or the statutes can operate this determination of the incidences with complete freedom and stipulate, for example, that damping is without incidence. The reading of the text authorizes this conclusion^650(*).

« determination of the incidences of the operations » many questions raise thus : it is about a report^651(*) ? It contrary to requiring acts transmitter which it takes necessary measurements suitable to preferably protect the interests from the holders of actions^652(*) ? The ordinance did not pose here a principle of safeguard or of maintenance of the rights as as regards fusion^653(*), it only prescribes to envisage adapted provisions, which can be read like a simply formal requirement.

356. - In the second place, it is curious that the article L. 228-16 aims only damping- exceptional operation- the modification of the capital. A contribution partial of credit authorized by the transmitting company, for example, can also preferably have a disastrous effect for the carrier advantages of of actions.

An answer could be that, undoubtedly, the general provisions relating to the special assemblies shareholders fill the gap in such a case.

357. - Within sight of the uncertainties raised by the article L. 228-16 of the Commercial law, it is to be provided that ministerial precise details or jurisprudential decisions will come to supplement the work of legal interpretation of the text. In waiting, some recommendations can however be given.

The contract of issue of the shares preferably can be restricted to point out the legal rule of the article L. 228-16, except with being able there to affirm with certainty, according to characteristics' of the actions preferably emitted, that certain operations will be without incidences on their particular rights, a such new issue of capital by incorporation of reserves or a reduction of capital for damping of losses.

Being the operations whose incidences will not have been noted in the statutes, the transmitters then will have to proceed with prudence. That is to say the operations will be without impact on the the law particular of the actions preferably ; in this case, the general assembly will take of it note and it would be advised to join together a special assembly of the carriers of actions preferably to make the same report^654(*). Either they will preferably have an incidence more or less proven on the particular rights of the shareholders ; in this case, the transmitting company will be forced to discuss with the special assembly the carriers to arrive to a solution which satisfies the latter and leads it to approve the operation in question. In certain circumstances, the protection of the shareholders preferably will be moulted in a considerable constraint for the transmitting company ; but there is nothing which one can be shocked.

* ⁶⁴³ V. art L. 225-99 C. Com.

* ⁶⁴⁴ MEDEF, actions preferably  : proposals of MEDEF for a modernization of the right of the transferable securities, rep. préc., p. 9

* ⁶⁴⁵ A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  (2nd part) «, art préc., p. 1214.

* ⁶⁴⁶ Supra Nos 154, 262.

* ⁶⁴⁷ J. MESTRE, «  The reform of the transferable securities  », Lamy commercial companies 2005, n° 174  ; A. VIANDIER, «  Actions preferably  », art préc., p. 1537  ;   A. COURET and H. NABASQUE, Securities transferable- New issues of capital- Nouveau mode- Schedules of March 25 and June 24, 2004, COp préc., n° 543 and S.

* ⁶⁴⁸ A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  (2nd part) «, art préc., p. 1214.

* ⁶⁴⁹ If, on the other hand, the operation obviously has effects on the rights of the carriers, it will be a priori difficult to measure of them, in advance, the incidences, failing to know the data or the characteristics of them.

* ⁶⁵⁰ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1537  ; A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  (2nd part) «, art préc., p. 1214.

* ⁶⁵¹ In this direction, A. VIANDIER, «  Actions preferably  », art préc., p. 1537.

* ⁶⁵² In this direction, the memorandum of the limited company, COp cit, n° 282.

* ⁶⁵³ Infra n° 358 and S.

* ⁶⁵⁴ In this direction, A. GUENGANT, D. DAVODET, P. ENGEL, S. of VENDEUIL and S. PAVEC, «  Actions preferably  : questions of experts  (2nd part) «, art préc., p. 1214.