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

(iii) Formalities of publicity

67. - The second component of the reform of the preferential duty of subscription is in article 156 of the decree of 23 March 1967, modified by the decree of February 10, 2005.

68. - Article 156 of the decree of March 23, 1967 laid out that the shareholders are informed of the issue of new shares and its methods by an opinion which, in the case of companies calling upon the saving publicly, « is inserted in a note published into the Bulletin of the obligatory legal advertisements (BALO), at least six days before the date of opening of the subscription » ; in the case of companies not calling publicly upon the saving, the opinion was to be made available of the shareholders by letter registered with request for notice of receipt within the same time.

In a practical way, this six days deadline before the date of opening of the subscription delayed the launching of the subscription and was thus strongly criticized. The note with the BALO presented moreover the disadvantage for the transmitters of making lose between three and five days before its effective diffusion^175(*) ; if one adds the six calendar days which were envisaged by article 156 of the decree, nine to eleven days were already used by the formalities of publicity.

This six days deadline could find a justification in 1953^176(*), at one time when the information was not diffused also quickly and uniformly only today and where a certain time could be necessary to take note of information appearing in the BALO. Today, this requirement raises more constraints than it does not protect the interests from the shareholders.

69. - Also, the ordinance of June 24, 2004 removed the six days deadline before the opening of the subscription and set up of new formalities.

If the company calls public upon the saving, the publication of an opinion with the BALO is obligatory, the time being at least fourteen days before the date envisaged of the subscription closure. This measurement constitutes a sensitive improvement compared to the former mode. The ANSA and MEDEF had required a particular flexibility for the publication of the price, which was obtained : the publication of the only price can be delayed compared to that of the opinion published in the BALO and to appear in a simple official statement diffused, according to methods' provided for by the general Regulation of the MFA, at the latest the opening day before of the subscription.

If the company does not make public call to the saving, same at least the fourteen days deadline before the date envisaged of the subscription closure is applicable ; the information of the shareholders must be made by letter registered with acknowledgment of delivery^177(*).

70. - In the companies not - dimensioned, it frequently happens that a financing in own capital stocks, on the methods of which the qualified majority of the shareholders expressly decided and which a certain number of subscribers accepted, must quickly be implemented after the decision of the general assembly^178(*). A process consists in carrying out the new issue of capital during the assembly. One can wonder whether this process is licit taking into consideration text new.

After the vote of the assembly on the decision to increase the capital, it would be proposed to the shareholders to give up, by one second resolution, with the fourteen days deadline because of circumstances which are indicated and which make urgent the operation. This mechanism would be obviously used in practice when the board of directors is certain unanimous approval of the shareholders. The assembly would be then suspended in order to be able to carry out and note the new issue of capital^179(*).

71. - In conclusion, if these modifications are in conformity with the second European directive of 1976^180(*), the completion date of a new issue of capital with preferential duty of subscription will be for as much reduced only of approximately four days and will remain always higher than fifteen days. It is a question there of a quite insufficient effort to seriously reduce the risk of market and the rebate which results from this^181(*).

One cannot that to reiterate the proposals already made^182(*) consistent, on the one hand, ensure the publicity of the new issue of capital per way of press release, and, on the other hand, to reduce the total period between the date of publicity referred to above and the closing date of the period of subscription for one period much more short, on line with the international practices of market- what will undoubtedly suppose a de-dusting of the second Council Directive of 1976.

* ¹⁷⁵ Because of the times of preparation and second reading of the tests and dates of publication of the BALO (Monday, Wednesday and Friday).

* ¹⁷⁶ During its introduction by the law of February 25, 1953.

* ¹⁷⁷ On the contents of this information, v. will infra n° 391.

* ¹⁷⁸ It had been proposed by the representatives of the companies not - dimensioned to add at the end of the last subparagraph of article 156 of the decree of March 23, 1967 a provision providing in substance that the fourteen days deadline would not have been applicable when the indications necessary were joined to the convocation of the general assembly having to come to a conclusion about the emission, under the condition which the assembly adopts the methods suggested by a vote in conformity. This proposal was disallowed by the authorities.

* ¹⁷⁹ ANSA, legal Committee, opinion of March 9, 2005  : this empirical solution would be licit if it exceptional and is justified by a top priority, for the principal reason that the shareholders can always, unanimously, to give up a right of pure individual protection, provided that their information is complete and that the social interest is not blamed by this renunciation.

* ¹⁸⁰ Directive the EEC n° 77/91 of December 13, 1976, art 29 § 3  : «  The offer of subscription on a purely preferential basis as well as the time in which this right must be exerted are the subject of a publication in the national Bulletin indicated in accordance with directive 68/151/the EEC [...]. The preferential duty must be exerted within a time which cannot be lower than fourteen days as from the publication of the offer or the sending of the letters to the shareholders  ».

* ¹⁸¹ In this direction, J. - P. VALUET, «  Transferable securities  : comment of the decree of February 10, 2005  », Dalloz 2005, p. 1362.

* ¹⁸² V.P. there. CHABERT, «  The excessive framing of the operations of new issue of capital  », in Which future for the authorized capital  ?, Acts of the conference organized by the Research center in financial right of the University Paris I, Dalloz, 2004, under dir it. of A. COURET and H. NABASQUE, p. 80 and S.