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

c) The mode of nullities

393. - The grounds for revocation in company law were limited a long time. The law of July 24 1966 had limited them in a Draconian way, with n the other hand penal sanctions. Thus, as regards deliberation amending- what is necessary to a new issue of capital-, nullity could only result « of a provision express of this law or those which govern the nullity of the contracts »^705(*).

394. - Under the impulse of the doctrines and practice, laws NRE and of financial safety started a movement of de-penalization. The law of financial safety in particular repealed penal provisions on infringements specific to certain aspects of the voting rights, that n the other hand of a general nullity of any infringement to the provisions on the voting rights. In addition, any infringement with the provisions relating to the sub-section « Increase in the capital » of the Commercial law is sanctioned of nullity, in the exchange of the de-penalization of certain particular infringements.

The counterpart is thus not proportional : penal sanctions aiming certain particular cases, the legislator passes to a nullity striking a generic unit. The risks which result from this are not negligible. The consequences of these nullities are moreover important : problem of restitution of dividends, difficulty to identify actions having to be cancelled because of their fungibility, risks cancellation of chains (cancellation of a new issue of capital whereas the new shareholders voted in following assemblies), etc

395. - The ordinance of June 24, 2004 caused many hopes. It resolutely marries the consequences of the movement of de-penalization of the company law which had been translated, in particular in the law of financial safety of August 1, 2003, by the significant aggravation of the civil sanctions. But in spite of the protests of the doctrines and the transmitters^706(*) and disproportion between the sanction of nullity compared to failures being able to have minor stakes, the ordinance maintains the course and amodie hardly the article L. 225-149-1 of the Commercial law ; and the declarations alleviating of the Report/ratio to the President of the Republic^707(*) do not soften the rigor of the system of sanction maintained by the ordinance.

396. - The article L. 225-149-1 of the Commercial law, which sanctioned of a full nullity the decisions taken in violation of any of the provisions of the Commercial law applicable to the new issues of capital, is replaced by an article the L. 225-149-3, more detailed, from which the consequences are however hardly distant.

The ordinance indeed preserves the general principle of a full nullity of the decisions taken in violation of the provisions of the sub-section of the Commercial law relating to the new issues of capital, but creates, for some specific decisions, of optional nullities and the exceptions to nullity.

397. - Optional nullity exists only in two cases^708(*).

Can be the subject of a cancellation the decisions taken in violation of the rule of suspension of the delegations of new issue of capital in period of public offer of purchase or exchange^709(*). The cancellation object the violation of the rules of publicity can also be preceding the opening by the period of subscription within the framework of the exercise of the preferential duties of subscription, such as note BALO and period 14 days before the period closure of subscription^710(*).

Nullity naturally supposes a decision of the judge who, to decide, will appreciate in particular the consequences of the violations of the legal provisions.

398. - Then, the ordinance envisages three cases making exception to automatic nullity^711(*).

Initially, it is the case of the violation of the obligation to hold an extraordinary general assembly every three years to come to a conclusion about a draft Resolution tending to carry out a new issue of capital in favor of the employees if the latter hold less than 3% of the capital^712(*). Then, it is about the transgression of the obligations of handing-over of a supplementary report in the event of new issue of capital by the board of directors or the directory on delegation of powers or competence of the general assembly^713(*) or on delegation specific for the new issues of capital to free price within the limit of 10% of the capital per annum^714(*). Lastly, it is about the violation of the obligation of handing-over of a supplementary report of the board of directors or directory when he is made use of one delegation at the time of a suppression of the preferential duty of subscription for the profit of people called or categories of identified people^715(*).

For these exceptions, the ordinance expects that the violations can give place to an injunction to make, which thus comes to replace nullity.

399. - The decisions taken in violation of the provisions relating to the new issues of capital other than those quoted above being able to be the subject of an injunction or an optional nullity are null full^716(*). In the same way, are null full^717(*) the contrary decisions with the principle of the preferential duty of subscription of the shareholders at the time of a movable issue of securities giving access to the capital, as well as the contrary decisions with the provisions applicable to this preferential duty of subscription.

400. - Nevertheless, the action for annulment based on the article L. 225-149-3 of the Commercial law from now on is prescribed by three months as from the date of the general assembly according to the decision of new issue of capital^718(*)- instead of three years before the ordinance-, which is an improvement for the experts, certainly thin however.

When they are new issues of capital decided or carried out by the board of directors or the directory during the year, it is advisable to await the behavior of this new general assembly to start to count the three months deadline. When the decision to increase the capital is made by the general assembly itself, without delegation with the board of directors or the directory for its realization, the text invites to count deadline the three months starting from the general assembly according to that having taken the decision and not as from the general assembly having decided the aforementioned new issue of capital.

Thus, the time will vary from one company to another according to the frequency of behavior of the general assemblies, which is a singular way of considering the regulations^719(*).

401. - The legislator seemed to want to ensure a balance between the safety of the shareholders and the correct operation of the companies. But the provisions relating to nullities, by the blind imposition of the sanction, without bringing additional safety for the shareholders, create an important risk on the safety of the financial transactions^720(*). It should be hoped that the suggestions of MEDEF, the AFEP and the ANSA will be heard during the next modification of the Commercial law or forthcoming law carrying DDOEF.

402. - Other remedies for the nullity of the new issues of capital can however be considered.

Three principal remedies already exist : the possibility of regularization of the defects affecting a new issue of capital, inopposability with the thirds in good faith of nullity of the new issue of capital and short regulation of the deliberations.

In the opinion of majority of the commentators, it is regrettable that the new issues of capital can be called into question for reasons other than serious. The safety of the creditors who take into account the own capital stocks, of which the capital forms part, imposes that the new issues of capital cannot be cancelled too easily. The shareholders cannot invest either in a company, to immobilize capital, so that, finally, they are found private, later, of their quality of shareholder, following the cancellation of a new issue of capital. The company cannot either undergo the risk of possible nullities in cascade. Nullity is indeed too often regarded as a «evil necessary», according to the expression of authors of civil law, and it should be strictly limited.

Except returning to a sanction by a fine, penal or commercial, of the author of certain violations of provisions, the field of nullities must be reconsidered. No nullity should result from irregularities carrying damage with nobody. The clerical errors purely, like the calculations of voice without incidence on the result, should not be sanctioned of nullity, not even optional. On the other hand, of automatic nullities should be maintained in the event of violation of an essential right of the shareholder, like his not-convocation at an assembly. For the remainder, optional nullity is enough, leaving to the judge the care to control^721(*).

Moreover, the mode of the nullity of the applications for shares, in particular the regulation, should be equivalent to that of the deliberations relating to the new issue of capital. The unification of mode seems to be essential, the acts in question relating to the same object: new issue of capital. It is artificial to distinguish both, since the subscription takes part directly in the new issue of capital.

The range of the inopposability should finally be extended to the shareholders in good faith, the responsibility allowing, as for it, always to sanction the authors of the various failures.

403. - Conclusion. The adjustment of a new space of freedom to the profit of the transmitters was not done without the maintenance, and even the reinforcement, of the protection of the shareholders. This protection is, of not to doubt, quite real and varied, of aucuns will say complete.

If this protection of the shareholders is necessary for the safeguarding of their rights, it is however under the reserve that it does not become a too heavy constraint for the company and its operation. Perhaps however, we could note that to want too much to protect, the writers of the ordinance of June 24, 2004 did not consider all the consequences of protective measurements which they founded. There some see there the reflection of the hesitations of a legislator divided between the concern of maintaining a protection worthy of this name for the shareholders and the will to take into account the constraints of the market which call with more flexible mechanisms.

If we think that it is creditable to reconcile these two requirements, and that one could not be sacrificed to the profit of the other, a solution would be perhaps to seek a safety device of the shareholders more adapted to economic realities and the new constraints. It is indeed not desirable that a simple material error can involve nullity in cascade of the posterior decisions, not more than it is beneficial, neither for the company, nor for the whole of its shareholders, than some of them disturb operation of it by using their prerogatives with excess^722(*).

* ⁷⁰⁵ Art 360, Al 1st L. July 24, 1966.

* ⁷⁰⁶ P. CANNU, «Of the penal sanctions to the civil sanctions» in the company law for 2004, Dalloz 2004, p. 227 and S.; A. Couret, «provisions of financial safety interesting the company law», art préc., p. 1431; Comments of the AFEP, the ANSA and MEDEF on the project of ordinance, p. 16: «It is advisable to replace the imperative nullity envisaged by the article L. 225-149-1 by an optional nullity. This nullity which applies to the violations of the provisions of all the sub-section relating to the new issues of capital is completely unjustified. Imperative nullity is a serious sanction. It applies in an automatic way, without any capacity of appreciation on behalf of the judge, whereas the sanctioned failures are not necessarily serious and can sometimes be simply formal. It seems that the consequences of imperative nullity are not always measured».

* ⁷⁰⁷ According to the report/ratio with the President of the Republic, rep. préc. : «The mode of nullities, resulting from the movement of de-penalization of the company law is arranged and clarified, in order to maintain the safety of the shareholders all while not weakening the operation of the companies».

* ⁷⁰⁸ Art L. 225-149-3, Al 2 C. Com.

* ⁷⁰⁹ Art L. 225-129-3 C. Com.

* ⁷¹⁰ Art L. 225-142 C. Com.

* ⁷¹¹ Art L. 225-149-3, Al 3 C. Com.

* ⁷¹² Art L. 225-129-6, Al 2 C. Com.

* ⁷¹³ Art L. 225-129-5 C. Com.

* ⁷¹⁴ Art L. 225-136, 1°, Al 2 C. Com.

* ⁷¹⁵ Art L. 225-138, I, Al 2 C. Com.

* ⁷¹⁶ Art L. 225-149-3, Al 3 and art L. 228-95 C. Com.

* ⁷¹⁷ Art L. 228-91, Al 2 and 3 C. Com.

* ⁷¹⁸ Art L. 235-9, Al 3 C. Com.

* ⁷¹⁹ P. there. CHABERT, «  The new issues of capital after the ordinance n° 2004-604 of bearing 24 June 2004 reforms transferable securities emitted by the commercial companies  », art préc., n° 85.

* ⁷²⁰ In this direction, F. BARRIER, «  Grounds for revocation of the new issues of capital  », in the new right of the transferable securities after the reform of June 24, 2004, art préc.  ; P. there. CHABERT, «  The new issues of capital after the ordinance n° 2004-604 of bearing 24 June 2004 reforms transferable securities emitted by the commercial companies  », art préc., n° 86.

* ⁷²¹ In this direction, F. BARRIER, «  Grounds for revocation of the new issues of capital  », in the new right of the transferable securities after the reform of June 24, 2004, art préc.

* ⁷²² For example, of the shareholders preferably misusing their right of information within the framework of the article L. 228-19 of the Commercial law. V. supra n° 365 and S.