The bill No. 8007 (the "Bill") aims to modify the amended law of 10 August 1915 on commercial companies (the "1915 Law") as well as the amended law of 19 December 2002 on the register of commerce and companies and the accounting and annual accounts of undertakings (the "RCS Law") in order to repair certain material errors or omissions made at the time of the recasting of the 1915 Law in 2016 with the law of 10 August 2016 modernizing the 1915 Law and the RCS Law (the "2016 Reform") and in particular certain changes not reflected in the RCS Law. It will also allow to remove certain inconsistencies or uncertainties discovered when implementing the 1915 Law.
The main changes to the 1915 Law envisaged by the Bill are :
A general definition of member State
In order to introduce more coherence throughout the 1915 Law, a general definition of member State to be applied to all transpositions of directives of relevance to the European Economic Area ("EEA") is introduced in article 100-2 as follows : "For the purposes of this law, and unless otherwise provided, any reference to a "member State" includes the member States of the European Union and the States party to the Agreement on the European Economic Area other than the member States of the European Union, within the limits defined by that agreement and the acts relating thereto”.
The regime of nullity of unlawful clauses in the context of a special limited partnership
As for limited liability companies, civil companies, unlimited companies (sociétés en nom collectif) and common limited partnerships (sociétés en commandite simple), the Bill introduces a provision specifying that unlawful clauses in the articles of incorporation of special limited partnerships are simply deemed unwritten and do not entail the nullity of the entire articles of incorporation.
Clarification of quorum and majority rules
-> The public limited liability companies (“SA”)
It is proposed to explicitly state in article 450-1 (9), that voting rights that have been suspended and voting rights whose renunciation has been notified to the company, are not taken into account for the determination of the quorum and majorities in general meetings.
-> The private limited liability companies (“SARL”)
The equivalent of article 450-1 (9), as above mentioned is added for the SARL in article 710-19, specifying that voting rights that have been suspended and voting rights whose renunciation has been notified to the company, are not taken into account for the determination of the quorum and majorities in general meetings or for determining whether written resolutions have been validly adopted.
As for the SA, it is proposed to specify in article 710-5 (6) that redeemed shares of an SARL are not taken into account for the determination of the quorums and majorities in general meetings or written consultations.
The Bill will remove the double majority requirement for determining the method of liquidation and appointment of the liquidator in article 1100-2 as already removed by the 2016 Reform for the amendment of articles of association of the SARL in article 710-26.
The procedure for the transfer of shares in article 710-12 (1) of the 1915 Law
The Bill intends to amend article 710-12 (1) paragraph 3 to clarify that the consent or refusal of a transfer of shares is decided by the shareholders and not by the company itself.
The Bill deletes the words "with the consent of the transferring shareholder" in article 710-12(1) paragraph 4 and replaces them with “unless the transferor renounces to the transfer of his shares” and paragraph 4 is corrected in order to clarify that the redemption of shares may be made with or without a reduction of capital.
Finally, article 710-28 of the 1915 Law will be amended to provide that where a SARL has a sole shareholder, the latter will be exempted from complying with the provisions of article 710-12 to approve the transfer of shares to a third party.
A simplified procedure for transferring the registered office of a single member limited liability company (the "SARL-U") and the possibility of having an authorized capital
The Bill now provides that, similarly to a SARL, the articles of association may provide that the managers of a SARL-U may, by simple decision, transfer the registered office of the company from one municipality to another or within the same municipality and amend the articles of association accordingly. The articles of association of a SARL-U can also provide for an authorized capital.
As the Bill is currently in committee, following its review by the Conseil d’Etat, the Chambre des métiers and the Chamber of Commerce in 2022, it should be presented and discussed soon in public session.
Our team specialised is available in case you need advice and/or assistance.