Introduction:
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 societies, other bodies are called upon to deliberate throughout
social life. Indeed, the members of the board of directors (CA) and the supervisory board (CS) deliberate in meetings, generally convened by their president (or vice-president for the supervisory board).
The convocation is materialized by A letter (paper or electronic) by which the partners, shareholders and other bodies are invited to participate in a general meeting (ordinary, extraordinary, mixed...) or a meeting (of the board of directors, supervisory...). It contains all the information (date, place, agenda...) and documents (management report, draft resolution...) required by law or statutes.
Also, from March 25, 2020 to September 30, 2021 the provisions applicable in this area had been adapted to the Covid-19 pandemic. Thus, ordinance No. 2020-321 of 25 March 2020 allowed all legal persons (commercial companies, civil companies, etc.) to derogate from special company law and to convene their meetings and meetings in a fully dematerialized manner (even in the absence of specific statutory provisions).
Article 13 of Law No. 22-46 of January 22, 2022 provided for the simplification and adaptation of the rules relating to meetings and decision-making by administrative, supervisory and management bodies only. These provisions were applicable until 31 July 2022.
In the absence of an extension of the ordinance of 25 March 2020 and the law of 22 January 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, with limited liability, through simplified and anonymous shares, in terms of convening meetings and meetings.
Focus on electronic registered letters (LRE) and electronic registered mail (ERE)
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 the ERE into French law.
Article R. 53 of the Postal and Electronic Communications Code (CPCE) combines the concepts of LRE and qualified ERE. Indeed, within the meaning of article L. 100 of the said UNere code, which meets the requirements of article 44 of European regulation no.
910/2014 eIDAS acquires the status of 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 in the following way:
- The service provider in charge of the delivery must be responsible for the good identity of the recipient and that of the sender (before the data is provided);
- Sending and receiving must be secured by an advanced electronic signature or an advanced electronic seal;
- Any modification of the data necessary for sending or receiving must be reported to the sender and to the recipient;
- Les shipping and receiving dates Of the letter should be guaranteed and verifiable (thanks to a qualified timestamp);
- If the recipient is not a professional, his prior agreement is required (in case of refusal, the sender must send the registered document in paper format).
If these conditions are met, the READ and The qualified ERE will have the same legal value as a letter sent by registered paper letter (paragraph 1 of article L. 100 above).
Otherwise, the shipment will have the qualification of simple registered electronic mail and thus the same value as a simple paper letter. This form of convocation can be used in companies where statutory freedom is promoted.
1. THE CONVENING OF THE GENERAL ASSEMBLIES OF A CIVIL SOCIETY (SC)
In a civil society, 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 3 July 1978.
MODALITIES:
Article 40 of the above-mentioned decree provides that the sending of convocations must be sent to the
minus 15 days before the shareholders' meeting. It is also specified that the partners are summoned 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 The manager can thus summon the partners either by :
- Registered letter on paper;
- Electronic registered letter or;
- Qualified electronic registered delivery.
SANCTIONS:
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 an imperative 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 imperative nature of the provisions of the Civil Code, the judges intervened in order to interpret this paragraph of the Civil Code.
By decision of 16 December 2005, the Mixed Chamber of the Court of Cassation (judgment No. 04-10.986) was able to rule that pursuant to Article 1844-10 paragraph 3 and Article 40 of Decree No. 78-704, meetings convened irregularly incur
The Nullity if the applicant shows a grievance.
In other words, if one of the resolutions put to the vote during
the meeting (convened irregularly) infringes the interests of a partner, he is entitled to take legal action by arguing that the deliberations are null and void. It will be up to the trial judges to assess the facts in a sovereign manner.
Such an action in nullity is time-barred by 3 years from the day on which the invalidity is incurred (article 1844-14 of the Civil Code).
2. THE CONVENING OF THE GENERAL MEETINGS OF A LIMITED LIABILITY COMPANY (SARL)
MODALITIES:
Article R. 223-20 of the Commercial Code states, in its first paragraph, that the
Invitation must be sent 15 days before the general meeting is held by registered letter.
The deadline is increased to 8 days when the sole manager is not in a position to convene (this is the procedure of article L. 223-27, paragraph 8 of the Commercial Code that applies).
As indicated above, without specifying the nature of the registered letter, it is possible to the author of the summons to proceed by:
- Registered letter on paper;
- Electronic registered letter or;
- Qualified electronic registered delivery.
The second paragraph of the said article provides that in the event of sending convocations electronically, the Consent of the partners must have been collected beforehand. So, without express agreement of each partner, the invitation must necessarily be sent by Postal route.
The partners retain the possibility of returning to a postal shipment (paragraph 3 of the above article) if they have previously consented to an electronic mailing.
To conclude:
- In principle, invitations to associates are sent by registered letter (paper, electronic or qualified ERE);
- If the sending is electronic, each associate must have previously consented to such a process and provided an email address. They still have the option of returning to mailing at any time.
SANCTIONS:
Article L. 223-27 paragraph 7 of the Commercial Code provides that:”Any meeting that is convened irregularly may be cancelled. However, an action for annulment is not admissible when all the partners were present or represented.”
The judges keep a sovereign power in this matter because only their assessment of the facts can lead to the nullity of the deliberations (Court of Cassation, Commercial Chamber, judgment of 5 December 2000, no. 98-13.904:”judges hearing an application for the cancellation of an irregularly convened meeting are not bound by the finding of the existence of such an irregularity”).
3. THE CONVENING OF THE GENERAL MEETINGS OF A SIMPLIFIED JOINT STOCK COMPANY (SAS)
MODALITIES:
Article L. 227-9 of the Commercial Code gives full power to the statutes in terms of convocation. Indeed, he foresees that it is they who”determine the decisions that must be taken collectively by the partners in the forms and conditions that they provide”.
In short, the authors of the articles of association are free to provide that the convening of general meetings of shareholders will be carried out by:
- Simple shipping (paper or electronic);
- Registered letter (paper or electronic).
SANCTIONS:
As provided in the above article, the modalities and sanctions
relating to the convening of meetings are determined by statutory provisions.
In conclusion, SAS are mainly governed by their articles of association, so it is essential to take care of their drafting and to always refer to them in order to obtain information relating to the convening of shareholders.
4. THE CONVENING OF MEETINGS AND MEETINGS OF A PUBLIC LIMITED COMPANY (SA)
4.1 THE CONVENING OF SHAREHOLDERS' MEETINGS
MODALITIES:
Articles L. 225-104 paragraph 1 and R. 225-62 of the Commercial Code provide for the conditions under which invitations to shareholders' meetings are held. In fact, it is expected that:”Subject to the provisions of articles R.225-66 to R. 225-70, the statutes Of the company set the rules for convening shareholders' meetings”. The articles R. 225-66 to R. 225-70 mentioned above contain the formalities of summons (publication, content, deadline, etc.) provided for by law.
Therefore, the authors of the articles of association are free to provide that the shareholders will be convened either by:
- Simple shipping (paper or electronic);
- Registered letter (paper or electronic);
The Recourse to electronic telecommunications to convene shareholders supposes that the company has previously submitted to them a proposal to this effect, by post or electronic means, and Gathered their agreement also by post or electronic means (art. R. 225-63, paragraph 1 of the Commercial Code).
In the absence of agreement from the shareholder (s) concerned, no later than 35 days before the date of the general meeting, the company must use postal mail (paragraph 2 of the said article).
Shareholders who have already accepted the use of electronic communication have the option of requesting a return by post at least 35 days before the date of the notice calling for the meeting, either by post or by
electronic (paragraph 3 of the above article).
SANCTIONS:
Article L. 225-104 paragraph 2 of the Commercial Code provides that:”Any meeting that is convened irregularly may be cancelled. However, an action for annulment is not admissible when all the shareholders were present or represented.”
As in the matter of the nullity of deliberations in the rules applicable to the limited liability company, it falls to justices seized of such a request fordetermine whether or not the annulment of the meeting should be declared null and void.
4.2 THE CONVENING OF MEETINGS OF THE BOARD OF DIRECTORS:
MODALITIES:
Article L. 225-36-1 of the Commercial Code mentioned above provides that these are the statutes which determine the procedures for convening directors to meetings of the board of directors.
Thus, it is possible to provide that the members of the board of directors will be convened either by:
- Simple shipping (paper or electronic);
- Registered letter (paper or electronic);
SANCTIONS:
The law does not provide for any specific sanctions in terms of convening meetings
of the board of directors. It will return to statutes of a public limited company and/or internal rules of the board of directors to provide for it.
4.3 THE CONVENING OF SUPERVISORY BOARD MEETINGS:
MODALITIES:
Article R. 225-45 paragraph 1 of the Commercial Code provides for statutory freedom concerning the rules relating to the convening of meetings of members of the supervisory board.
Thus, the statutes may provide that the members of the supervisory board will be convened either by:
- Simple shipping (paper or electronic);
- Registered letter (paper or electronic);
SANCTIONS:
The law does not provide for any specific sanctions in terms of convening supervisory board meetings. He will come back the statutes of the public limited company and/or the rules of procedure of the supervisory board to provide for it.
Respect the obligations inherent in drafting your invitation, thanks to our template for convening general meetings downloadable free of charge.
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