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1. Drafting minutes of general meetings and applicable deadline for SA
A. The content of the minutes of the general meeting
1. Mandatory information
The Commercial Code provides for a number of mandatory information to be included in the minutes of the general meeting. It is in fact article L. 225-114 paragraph 2 of the Commercial Code which states that:”The decisions of the Assembly must be recorded by a report whose terms are determined by decree in the Council of State.”. These mentions are specified inArticle R. 225-106 paragraphs 1 and 2:
- the date and location of the meeting;
- the method of convening;
- the agenda;
- the composition of the office;
- the number of shares participating in the vote and the quorum reached;
- documents and reports submitted to the Assembly;
- a summary of the discussions;
- the text of the resolutions put to the vote;
- the results of the votes;
- Where applicable, a statement that the meeting was held by exclusive use of videoconferencing or telecommunications. If a means of telecommunication allowed the meeting to be held, then the minutes of the general meeting must indicate the occurrence of a possible technical incident that may have disturbed it.
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A minutes of a general meeting must be drawn up when the meeting was unable to deliberate due to an unreached quorum (Article R. 225-107 of the Commercial Code). Compliance with such a provision justifies the sending of a second simplified convocation, following an unreached required quorum.
Also, when the persons appointed as tellers refuse this role, it is advisable to mention it in the minutes of the general meeting.
Finally, mention should be made, in the minutes of the general meeting, of the exclusion, for the calculation of the quorum, of shares deprived of voting rights for certain resolutions only (article R. 225-106 of the Commercial Code).
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2. The transcript of debates and votes
The minutes of the general meeting must Transcribe the discussions on the items and resolutions on the agenda.
Shareholders have the opportunity to put forward written questions that are asked at the meeting. When such a question has been answered, it is necessary to transcribe them because they are part of the debate, however, there is no legal provision requiring them.
The minutes of the general meeting are of great importance since they constitute the proof on which the partner or shareholder will rely who wants to establish the absence of an answer to his written question.
In this respect, it may be prudent to identify, in one way or another, in the minutes of the general meeting of a public limited company, each of the questions with the same content and which were answered jointly pursuant toArticle L. 225-108, paragraph 3 of the Commercial Code.
It follows from Article R 225-106, paragraph 1 of the Commercial Code that all resolutions submitted to the vote of the shareholders must be reproduced, regardless of whether they were adopted or rejected.
Indeed, it seems useful to specify the number of votes cast in each resolution : the votes for and against, as well as the number of abstentions, if the resolution was or must be adopted unanimously.
B. Signature and applicable deadline
1. The signing of the minutes of the general meeting
The minutes of the general meetings of shareholders of SA must be signed by members of the Bureau (C. com. art. R 225-106, para. 1), and therefore not only by the presiding officer.
In addition, nothing prohibits having the minutes of the general meeting signed by other persons, such as the directors or members of the supervisory board present at the meeting, or the auditors, in particular when they are appointed.
The minutes of the general meeting can be signed by means of a electronic signature who respects, At the very least, the advanced electronic signature requirements provided for in article 26 of European regulation of 23 July 2014 called eIDAS. To do this, they must be dated electronically using a timestamp offering every guarantee of proof (art. R 225-106, para. 1 and, upon reference, art. R 225-22, para. 3 amended by decree 2019-1118 of 31-10-2019 of the Commercial Code).
The advanced electronic signature within the meaning of the eIDAS regulation must meet the following conditions:
- be unequivocally linked to the signatory;
- allow the signatory to be identified;
- be linked to the data associated with this signature, so that any subsequent modification is detectable;
- be created using signature creation data that the signatory can, with a high level of confidence, use under their exclusive control.
No sanctions is not attached to the lack of signature.
To find out more, check out our summary on the legal regime of electronic signatures.
2. The deadline for drawing up the minutes of the general meeting
No legal or regulatory provision provides for a time limit for drawing up the minutes.
This formality may therefore not take place immediately after the end of the meeting, in particular to allow this writing to be written. However, this period should not be of such length as to prevent the minutes of the general meeting from being signed and entered in the register of meetings, or from complying with the requirements relating to the communication of minutes.
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2. Drafting minutes of general meetings and deadlines for LLCs
A. The content of the minutes of the general meeting
1. Mandatory information
Meetings held by a SARL must be recorded in a minutes in the same way as for SA (article R. 223-24 paragraph 1 of the Commercial Code).
The minutes of the general meeting must include the following information (C. com. art. R 223-24, para. 1):
- the date and location of the meeting;
- the name, first names and position of the president;
- the names and first names of the partners present, deemed to be present or represented, with an indication of the number of shares held by each;
- documents and reports submitted to the Assembly;
- a summary of the discussions;
- the text of the resolutions put to the vote, including those rejected by the partners;
- The result of the votes
- as for SA, it is necessary to record in the minutes any possible incident that occurred during the videoconference.
In addition, when some partners are legal persons, their corporate name must appear in place of the first and last names of the partners. Also, if the number of votes is different from the number of shares, it is appropriate to mention this.
Find our legal summary on how to write the minutes of meetings.
2. The transcript of debates and votes
The transcript of the debates is done in the same way as for SA: it is necessary to mention the decisions taken, without analysing the discussions. However, partners may request that their observations be mentioned in the minutes.
Article R. 223-24, paragraph 1 of the Commercial Code provides that all resolutions submitted to the vote must be transcribed, regardless of whether they were adopted or not.
One Special mention showing the number of votes for, against, including abstentions and resolutions adopted unanimously is recommended. This thus makes it possible to transcribe as best as possible the voting process during the meeting.
B. Signature and applicable deadline
1. The signing of the minutes
The minutes of the shareholders' meetings of SARL must be drawn up and signed by the managers or, where appropriate, by the chairman of the meeting (article R. 223-24 paragraph 3 of the Commercial Code).
Moreover, in LLCs composed of a small number of partners, it is common in practice to have all the partners present at the meeting signed, which makes it possible to avoid any subsequent dispute over the content of the minutes of the general meeting.
As in the case of SA, the minutes of general meetings can be drawn up in electronic form and must then be signed using an electronic signature that meets at least the requirements of advanced electronic signatures.
However, The absence of signature of the minutes of the general meeting is not accompanied by any penalty, this is in fact confirmed by the decision of the Bordeaux Court of Appeal (CA Bordeaux 14-5-2013 no. 11/03856).
2. The deadline for drawing up the minutes of the general meeting
As for SA meetings, there is no deadline for drawing up and signing the minutes of the general meeting, which must therefore take place in a reasonable time. However, it is still common for the minutes to be drawn up at the end of the meeting so that the shareholders present can sign them directly.
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3. The solution proposed by Axiocap in terms of dematerialized general meetings
Axiocap offers you to help you in the archiving of your minutes by generating for your companies time-stamped meeting registers which have, since Decree No. 2019-1118 of October 31, 2019, the same legal value as paper registers.
If you want to know more about dematerialized meeting registers, we tell you everything in our article:”Dematerialized general meeting registers”.
You can also find our legal summary on the register of decisions.
In addition, the digital safe made available by Axiocap allows you to add any legal document (for example a report) and send it for signature. This feature will allow you to have your minutes signed electronically and recorded in the dematerialized meeting register. The electronic signature used by Axiocap is the advanced electronic signature, it thus meets the conditions provided for in article 26 of the eIDAS regulation mentioned above.
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