All legal entities are required to convene meetings at least once a year for the partners or shareholders to deliberate on the approval of the accounts.
In some companies, other bodies are called upon to deliberate throughout the life of the company
. Indeed, the members of the board of directors (CA) and the supervisory board (CS) deliberate in meetings, generally convened by their chairman (or vice-chairman for the supervisory board).
The convocation is materialized by a letter (paper or electronic) by which the associates, shareholders and other bodies are invited to participate in a general assembly (ordinary, extraordinary, mixed...) or a meeting (of the board of directors, supervisory board...). It contains all the information (date, place, agenda...) and documents (management report, draft resolution...) required by law or the articles of association.
Also, from March 25, 2020 to September 30, 2021 , the provisions applicable in this area were adapted to the Covid-19 pandemic. Thus, the order n° 2020-321 of March 25, 2020 allowed all legal entities (commercial companies, civil companies...) to derogate from the special law of companies and to convene their assemblies and meetings in a completely dematerialized way (even in the absence of specific statutory provisions).
Article 13 of Law no. 2022-46 of January 22, 2022 provided for the simplification and adaptation of the rules relating to meetings and decision-making of administrative, supervisory and management bodies only. These provisions were applicable until July 31, 2022.
In the absence of an extension of the Ordinance of March 25, 2020 and the Law of January 22, 2022, it is appropriate to refer to the special rules of each corporate form and to draw up a detailed picture of the obligations applicable to civil companies, limited liability companies, simplified joint stock companies and public limited companies, with regard to the convening of meetings.
Law No. 2016-1321 of October 7, 2016 (art. 93) and its implementing decree No. 2018-347 of May 9, 2018 introduced the LRE and ERE into French law.
Article R. 53 of the French Post and Electronic Communications Code (CPCE) combines the concepts of LRE and qualified ERE. Indeed, within the meaning of Article L. 100 of the said code an ERE that meets the requirements of Article 44 of European Regulation No.
910/2014 eIDAS acquires the status of a qualified ERE and thus, the same value as an LRE.
Article L. 100 of the CPCE and Article 44 of the eIDAS Regulation provide for and condition their application as follows:
If these conditions are met, the LRE and the qualified ERE will have the same legal value as a mailing by registered paper letter (paragraph 1 of article L. 100precised).
Otherwise, the sending will have the qualification of simple electronic registered letter and thus the same value as the simple paper letter. This form of convocation can be used in companies where the statutory freedom is advocated.
In a civil company, the rules applicable to the convening of general meetings are found both in the Civil Code and in the provisions of Decree no. 78-704 of July 3, 1978.
TERMS AND CONDITIONS:
Article 40 of the above-mentioned decree stipulates that notices of meeting must be sent to
at least 15 days before the meeting of the associates. It is also specified that the associates are convened by "registered letter".
In conclusion, without specifying the nature of the registered letter, and by virtue of the assimilation in French and European law of the electronic registered letter to the paper registered letter, the manager can thus convene the partners either by :
PENALTIES:
Article 1844-10 paragraph 3 of the Civil Code provides that: "The nullity of the acts or deliberations of the organs of the company can only result from the violation of a mandatory provision of this title, with the exception of the last paragraph of article 1833, or from one of the causes of nullity of contracts in general".
Without specifying the mandatory nature of the provisions of the Civil Code, the judges intervened to interpret this paragraph of the Civil Code.
By decision of December 16, 2005, the mixed chamber of the Court of Cassation (decision n°04-10.986) was able to judge that in application of article 1844-10 paragraph 3 and article 40 of the decree n° 78-704, the assemblies irregularly convened incur
the nullity if the applicant demonstrates a grievance.
In other words, if one of the resolutions put to the vote during
the assembly (irregularly convened) is detrimental to the interests of a partner, he is entitled to take legal action by arguing the nullity of the deliberation. It will be up to the judges of the court of first instance to assess the facts.
Such an action in nullity is prescribed by 3 years as from the day when the nullity is incurred (article 1844-14 of the Civil Code).
TERMS AND CONDITIONS:
The first paragraph of Article R. 223-20 of the French Commercial Code states that the
The invitation must be sent 15 days before the general meeting by registered mail.
The time limit is extended to 8 days when the sole manager is unable to convene the meeting (the procedure of article L. 223-27, paragraph 8 of the Commercial Code applies).
As mentioned above, without specifying the nature of the registered letter, it is possible for the author of the summons to proceed by :
The second paragraph of the said article provides that in case of sending the convocations by electronic means, the consent of the associates must have been obtained beforehand. Thus, without the express agreement of each partner, the convocation must necessarily be sent by post.
The associates keep the possibility to return to a postal mailing (paragraph 3 of the above mentioned article) if they have previously consented to an electronic mailing.
To conclude:
PENALTIES:
Article L. 223-27 paragraph 7 of the Commercial Code provides that: "Any meeting irregularly convened may be cancelled. However, the action for nullity is not admissible when all the associates were present or represented".
The judges retain sovereign power in this matter because only their appreciation of the facts can lead to the nullity of the deliberations (Court of Cassation, Commercial Chamber, decision of December 5, 2000, n° 98-13.904: "the judges seized of a request for the annulment of a meeting irregularly convened are not bound by the finding of the existence of such an irregularity").
TERMS AND CONDITIONS:
Article L. 227-9 of the Commercial Code gives full power to the articles of association as regards convening meetings. Indeed, it provides that they "determine the decisions which must be taken collectively by the associates in the forms and conditions which they provide".
Ultimately, the drafters of the articles of association are free to provide that notices of general meetings of shareholders shall be given by :
PENALTIES.
As provided for in the aforementioned article, the procedures and sanctions
relating to the convening of meetings are determined by statutory provisions.
In conclusion, SAS are mainly governed by their articles of association, it is therefore essential to take care of their drafting and to always refer to them in order to obtain the information related to the convocation of the shareholders.
MODALITIES:
Articles L. 225-104 paragraph 1 and R. 225-62 of the French Commercial Code set out the conditions under which shareholders' meetings are convened. Indeed, it is provided that: "Subject to the provisions of articles R. 225-66 to R. 225-70, the articles of association of the company set the rules for convening shareholders' meetings". The aforementioned articles R. 225-66 to R. 225-70 set out the formalities for convening meetings (publication, content, deadline, etc.) as provided by law.
Therefore, the drafters of the articles of association are free to provide that the shareholders will be convened either by :
The use of electronic telecommunication to convene the shareholders assumes that the company has first submitted a proposal to the shareholders, either by post or electronically, and has obtained their agreement , also by post or electronically (Article R. 225-63, paragraph 1 of the Commercial Code).
In the absence of the agreement of the shareholder(s) concerned, at the latest 35 days before the date of the general meeting, the company must resort to a mailing (paragraph 2 of the said article).
Shareholders who have already accepted the use of electronic communication have the option of requesting that the notice of meeting be sent by post at least 35 days before the date of the meeting, either by post or by electronic means (paragraph 3 of the above-mentioned article).
PENALTIES:
Article L. 225-104 paragraph 2 of the French Commercial Code provides that: "Any meeting that is improperly convened may be cancelled. However, the action for nullity is not admissible when all the shareholders were present or represented".
As in the case of the nullity of deliberations under the rules applicable to limited liability companies, it is up to the judges seized of such an application toassess in a sovereign manner whether the nullity of the meeting should be pronounced or not.
MODALITIES:
Article L. 225-36-1 of the French Commercial Code, referred to above, provides that the bylaws determine the terms and conditions for convening meetings of the Board of Directors.
Thus, it is possible to provide that the convocation of the members of the board of directors will be done either by :
PENALTIES:
The law does not provide for any specific penalties for calling meetings
of the board of directors. It will be up to the articles of association of the limited liability company and/or the internal rules of the board of directors to provide for this.
MODALITIES:
Article R. 225-45 paragraph 1 of the French Commercial Code provides for statutory freedom concerning the rules for convening meetings of the members of the supervisory board.
Thus, the articles of association may provide that the members of the supervisory board shall be convened either by :
SANCTIONS:
The law does not provide for any specific sanctions concerning the convening of Supervisory Board meetings. It will be up to the company's bylaws and/or the Supervisory Board's internal rules to provide for them.
Respect the obligations inherent in the drafting of your notice of meeting, thanks to our free downloadable model notice of meeting.
