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

b) Right of information of the shareholders preferably

365. - Under article L. 228-19 of the Commercial law, « the carriers of actions preferably, made up in special assembly, have faculty to give mission to the one of the auditors of the company of preferably drawing up a special report/ratio on the respect by the company of the particular rights attached to the actions. This report/ratio is distributed with these carriers at the time of a special assembly ».

It is not a question here of a particular right^661(*). This text preferably confers on the carriers actions made up in special assembly a true right of permanent audit of the transmitting company as for the respect by this one of the particular prerogatives attached to the actions preferably.

366. - The special report/ratio of the auditor preferably includes/understands his opinion on the respect by the company of the particular rights attached to the actions and indicates, if necessary, the date from which these rights were ignored^662(*).

Expenses relating to the establishment of the report/ratio its to the load of the company^663(*).

367. - The preoccupation with a protection of the carriers which expresses the article L. 228-19 of the Commercial law is undoubtedly creditable. However, by granting such a prerogative the shareholders preferably, the writers of the ordinance do not have any, seems it, not considered all the consequences. Its implementation is indeed likely to cause the controversy.

First of all, nothing is known as periodicity of this measurement, which can thus authorize the special assembly with periodically launching such a mission of investigation, except for the company calling upon the abuse right, in the line of recent jurisprudence on the written questions of the shareholders^664(*), and to solicit of the judge that it is made defense with the auditor submit with the injunction of the special assembly of the shareholders preferably.

368. - Then, the decision of the special assembly is discrétionnaire ; she does not have to call upon a irregularity or a suspicion of irregularity in the service of the particular rights attached to the actions preferably or an insufficiency in information of the carriers.

This is likely to facilitate possible drifts, particularly when the actions preferably are deprived of voting rights and thus their private carriers of means of expression in assembled general shareholders. Contrary, the auditor, freely selected by the assembly in the event of plurality of police chiefs, does not see himself recognizing any freedom of appreciation and, except engaging his responsibility, under no circumstances would it decline the invitation of the special assembly.

369. - Another possible source of discord is the very broad definition that the article L. 228-19 of the Commercial law gives mission : « to preferably draw up a special report/ratio on the respect by the company of the particular rights attached to the actions ».

However, in the case of complex financial rights, indexed on the result of branches of activity or other financial parameters, that can require thorough investigations being able to extend to the decisions from management having been able to affect this result or these parameters.

370. - Another silence covers the duration of the mission.

The good direction led to spare with the auditor a reasonable time for the execution of the mission, it « reasonable » depend on the nature and the difficulties of the requested investigation.

371. - Lastly, the text takes care not to envisage the possible continuations of the report/ratio, beyond of a diffusion in special assembly, which consequently obliges to join together a new assembly so as to make it possible to the shareholders preferably to discuss the contents of the report/ratio and to stop the initiatives taking. Among these initiatives, one can imagine an action of responsibility against the company, committed not by the special assembly^665(*) but by the shareholders preferably acting individually or while grouping, according to methods' envisaged by article 199 of the decree of March 23, 1967.

372. - The future will say if the measurement envisaged by the article L. 228-19 of the Commercial law does not have more disadvantages than advantages. The preoccupation with a protection of the carriers of actions preferably is, more than one honourable concern, a need. However, it is necessary to take guard with the excess of protection or the badly adapted protection, which is likely to prove, in certain cases, vermin. The same remark is true for the protection of the shareholders relative to the new issues of capital.

* ⁶⁶¹ Supra n° 169.

* ⁶⁶² Art 206-7, Al 1st of the decree of 23 March 1967, introduced by the decree of February 10, 2005.

* ⁶⁶³ Art 206-7, Al 2 of the decree of 23 March 1967, introduced by the decree of February 10, 2005.

* ⁶⁶⁴ T. Com. Paris, May 11, 2004  : JCP E 2004, 1154.

* ⁶⁶⁵ There is not, as for the bond-holders (art L. 228-54 C. Com.), of representative «  mass of the shareholders preferably  » and thus of possibility of action by such a representative in the name of the whole of the carriers of actions preferably.