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

(3) The subdelegation with the social leaders

50. - The article L. 225-129-4 of the Commercial law shows the possibility for the board of directors or the directory of limited companies whose titles are allowed with the negotiations on a market regulated under-to delegate its capacities^154(*), the delegate being then held to account for the use of these capacities^155(*).

The ordinance extends the number of under-délégataires potentials^156(*). Thus, the board of directors can under-delegate to the general manager, even, in agreement with this last, with (X) directing (S) general (with) deputy (S) and the directory under-to delegate to his president, even, in agreement with this last, with the one of his members, the capacities to decide the realization of the emission like postponing it, and either only the capacity to carry out the new issue of capital.

51. - The text envisages limits specific to this authorization of emission being able to be given to the leaders, neither in terms of ceiling- that fixed by the extraordinary general assembly imposing itself-, neither in terms of times, nor as for the conditions of the emission.

It rests to the board of directors to impose such limits, the delegation having to be « within the limits which it will have fixed beforehand »^157(*).

52. - The faculty of subdelegation being intended to allow the leaders, in economic situations marked by the volatility and the instability of the financial markets, to adapt the methods of an emission given to the conditions of markets existing most recent and foreseeable, it would be unusual to proceed to a subdelegation with the leaders of the whole of the powers delegated to the board of directors or to the directory by the extraordinary general assembly.

53. - Without revolutionizing the principle of the delegations, the modifications made by the ordinance of June 24 2004 carry out a suitable update of the texts all while bringing convenient changes there. The reorganization of the provisions allows a clearer reading and a more obvious visibility of the mode of the delegations. The introduction of a new distinction enters of « delegations of powers » and of « delegations of power », as well as the simplification of their mode, allow a better adaptation of the mechanism of the delegation to the requirements of a market which requires an optimal reactivity. The reform thus sought to introduce a greater flexibility into the decision-making processes, under the control of the shareholders.

54. - The ordinance supplements the reorganization of competences and the system of delegation by specific modifications of many rules applicable to the various types of new issues of capital.

* ¹⁵⁴ Art L. 225-129-4 C. Com.  : «  In the limited companies whose titles are allowed with the negotiations on a regulated market: has) The board of directors can, within the limits which it will have fixed beforehand, to delegate to the general manager or, in agreement with this last, to one or more deputy general managers capacity to decide the realization of the emission, like that to postpone it; b) The directory can delegate to its president or, in agreement with this one, to the one of its members the capacity to decide the realization of the emission, like that to postpone it. The designated people return account to the board of directors or to the directory of the made use of this capacity under the conditions envisaged by the latter  ».

* ¹⁵⁵ The will of the ordinance to increase the capacity of the leaders in the limited companies whose titles are allowed with the negotiations on a regulated market is also visible as regards repurchase of actions. The article L. 225-209, in order to make more flexible the implementation of the programs of repurchase, allows the board of directors or the directory under-to delegate to its capacities with-same leaders on the matter that those aimed to the article L. 225-129-4 of the Commercial law.

* ¹⁵⁶ P. ENGEL and P. OF HOIR, «  New issues of capital, repurchases of actions  : operations facilitated with the reform  », Option Finances 2004, n° 799, p. 27. - The Commercial law held until now the subdelegation as regards new issue of capital in the companies dimensioned with only the directory and chairman of the board. In addition to the restrictive character of such a subdelegation, the legislator had omitted to put in harmony the texts with law NRE. The general manager not-president of the board of directors could not thus profit from this subdelegation.

* ¹⁵⁷ This same text was curiously not taken again for the subdelegation granted by the directory.