The dematerialization of legal registers

Decree No. 2019-1118 of October 31, 2019 relating to the dematerialization of registers, minutes and decisions of companies and the accounting records of certain traders allows the keeping of records of Electronic way. This text came into force on November 4, 2019, the day after its publication in the Official Journal of the French Republic (JORF).

In fact, since the entry into force of the decree, it is possible for companies to keep these records electronically and entirely dematerialized:

➟ The register of the deliberations of partners in partnerships, limited partnerships and limited liability companies, including single-member limited liability companies.

➟ The register of the deliberations of the board of directors or the supervisory board in joint stock companies.

➟ The register of attendance at these boards and register of the deliberations of shareholders' meetings in public limited companies.

➟ The register of proceedings of meetings of bondholders and meetings of holders of securities giving access to capital in joint stock companies.

➟ The recipe book and the purchase register of traders under the micro-enterprise tax regime.

These records are not recorded on the Blockchain unlike stock movements, but must still respect certain conditions :

• The register should be dated electronically by means of a timestamp offering all Proof guarantee (Article 11 of the decree and R.227-1-1 of the Commercial Code) and;

• The documents (minutes, decisions of the President, the Board of Directors, etc.) must, at the very least, have been signed through a advanced electronic signature.

If these conditions are met, the registry will have a legal value identical to the old paper register and the company will thus be able to manage it in a electronic and dematerialized.

As for civil companies, they can also keep the register of partners' deliberations in a dematerialized manner. In addition, the minutes of these must be certified by electronic signature (article 45 decree No. 2019-966 of September 18, 2019).

With regard to the electronic signature, it has been recognized by French law since Law No. 2000-230 of 13 March 2000 relating to the law of evidence and information technology. However, companies had to keep some records on paper.

In fact, it is in consideration of Article 26 of Regulation EU No. 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions within the internal market (eIDAS), taken up by article 1367 of the Civil Code, that the decree specifies the necessary signature.

This has made it possible to extend the use of electronic signatures to all forms of companies, until now this only concerned SAS if their articles of association provided for the register in electronic form containing the decisions of the partners or the sole partner.

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Thus, in accordance with article 26 of the eIDAS Regulation No. 910/2014, the advanced electronic signature includes several requirements :

➟ Be linked to the signatory;

➟ Identify the signatory;

➟ Have been created using electronic signature creation data that the signatory can use under his exclusive control;

➟ Linked to the data associated with this signature so that a subsequent change is detectable.

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However, and in accordance with the provisions of article R.227-1-1 of the Commercial Code, this signature level is applicable In addition in SAS when the statutes do not specify the terms and conditions of the latter. SAS may therefore provide for other methods of signing registers in electronic form.