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

GENERAL CONCLUSION

404. - The question of knowing if the ordinance of bearing 24 June 2004 reforms mode of the transferable securities emitted by the commercial companies and extension to overseas of provisions having modified the commercial legislation answers the preoccupation with a simplification of the right to which it owes its existence remains posed.

405. - Undoubtedly, this reform, awaited long date by the experts, marks a return towards contractual and statutory freedom within the company law. The era is with the deregulation, and this last does not escape from it. The legislator separates more and more social model organized by the law of July 24, 1966 and gradually withdraws the lead cover which weighed on the commercial companies, movement already started by preceding reforms in 1985, 1994 and 1999 in particular.

This mobility, whose reform of the financing of the joint stock companies constitutes an angular stone, will make it possible the French companies to improve, on the one hand, their financial competitiveness and their capacity of financing by attracting new investors while being able to answer their waitings, on the other hand, their reactivity while adapting more easily to the surrounding constraints. At the hour of the large European market and universalization, the new financial instrument that are the actions preferably, as well as the easing of the mode of the new issues of capital, take part of the will posted of the ordinance to restore the image of the French money market.

406. - These positive aspects, if they are undeniable, should not however make forget that a certain number of points of the ordinance are obscure and do not have to date, in the absence of jurisprudence, not found yet an answer. There is no doubt that the resolution of the dispute to come will bring some welcome clarifications to the questions about which the commentators do not manage to agree. The advisability will then be given of seeing in which direction the courts will lean, if they will fall under the liberal spirit of the ordinance or if they restrict the room for maneuver offered to the transmitters.

If the commercial Room of the Supreme court of appeal softened some of these positions during these last years^723(*), it is necessary to take care not to forget that it can also show a particular rigor, going sometimes further that the spirit even from the law^724(*). The judges are attached to the protection of the rights of the shareholders, which the ordinance does not neglect ; remain to know which limits will fix.

407. - Other points, seemingly secondary, call some remarks. It is in particular the case of the tax system of the actions preferably. The stakes are effect considerable^725(*) and the answers do not go from oneself, in particular in comparison with the tax of solidarity on fortune^726(*). The legislator and the administrative doctrines will be brought to specify the tax treatment which will be reserved for the financial rights attached to the actions preferably- in particular being dividends and other distributed financial products- and, more generally, to integrate in the tax legislation the existence of this new financial instrument.

408. - Beyond these reflections, it especially remains to be known how the experts will harness themselves with this new building site, because such is well the stake of the reform of June 24, 2004, whose projections can be threatened by the combined pusillanimity of the councils, the transmitters, the doctrines and more still of the authority of markets. We lived a long time in the traditional belief that as regards transferable securities, which was license was strictly confined so that the law and envisaged expressly so that tolerated the administrative authority.

The handing-over at the place of the reasoning and the return to the principle of contractual freedom will require, at least initially, a serious effort of rehabilitation, and one can wonder whether the creativity will prevail on the frilosity. At the hour when some already start to consider next the large building site of the company law- the distinction between a mode of the dimensioned companies, whose social form headlight would be SA, and a mode of the companies not - dimensioned, whose social form headlight would be SAS-, the question remains whole.

* ⁷²³ V. for example recent jurisprudence relating to the undertakings to purchase of actions  : Case. Com., February 22, 2005  : Dalloz 2005, p. 973.

* ⁷²⁴ V. for example recent jurisprudence relating to the rights of the usufructuary  : Case. Com., March 31, 2004  : JCP E 2004, 929, note A. RABREAU.

* ⁷²⁵ V. note under the memorandum of the limited company, the fiduciary review, RF 937, 2005, n° 277  ; O. PAULHAN, «  Actions preferably or the financial innovation with the service of the innovating companies  », The Newspaper of the Net, on http://www.journaldunet.com/juridique/juridique050315.shtml; A. PIELHARD, «  Green light for the issue of the shares preferably  », Agefi Credits 2005.

* ⁷²⁶ V. the opinion of the legal Committee of the ANSA, on http://www.ansa.asso.fr/site/actions_preference_regime_fiscal.asp.