NEWS

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04-10-2018

 

Bill Pacte : presentation of some measures concerning business law

 

The Pacte bill (action plan for the growth and transformation of companies) aims to allow French companies "to innovate, transform, grow and create jobs".

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Presented to the Council of Ministers on June 18, this bill includes 73 articles relating to business law.

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This article presents some of the key measures of this bill, in their initial version and pending the modifications which will, if necessary, be adopted by parliamentarians.

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(I) Clarifications to the notion of company (Art. 61) : 

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The bill provides for supplementing article 1833 of the civil code (according to which "Any company must have a lawful corporate purpose and be constituted in the common interest of the partners") by the following paragraph_cc781905-5cde-3194-bb3b- 136bad5cf58d_: "The company is managed in its social interest, by considering the social and environmental stakes of its activity".

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This new paragraph would confirm in the Civil Code the jurisprudential notion of social interest. The draft law does not provide a definition of this concept, which is assessed in particular according to the activity and the environment specific to each company. The introduction of social and environmental issues aims to further encourage managers to take these issues into account in their management decisions.

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If the objective of the legislator is understandable, the concept is likely to make it more difficult to assess the powers of managers.

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It also modifies article 1835 of the civil code by instituting for a company the faculty of registering a "raison d'être" in its statutes.

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The notion of raison d'être would also be introduced into the Civil Code without being defined there and would be intended to be clarified in the articles of association according to the activity of the company. It would be the expression of what is "indispensable to fulfill the corporate purpose". The mention of this raison d'être which the company intends to adopt in carrying out its activity would however remain a simple option for the partners.

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(II)Increase and harmonization of legal certification thresholds for annual accounts (Art. 9) :

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The draft law plans to raise the thresholds for legal certification of accounts beyond which commercial companies (other than SAs and SCAs) are required to appoint a Statutory Auditor by raising them to €4,000,000 with regard to the balance sheet total (compared to €1,550,000 currently), €8,000,000 for turnover excluding tax (compared to €3,100,000 currently) and 50 employees (constant threshold).

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These thresholds would also apply to SAs and SCAs for which the appointment of a Statutory Auditor is currently mandatory, regardless of the amount of their turnover, their balance sheet total and the number of employees.

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Thus, all commercial companies would be subject to identical obligations in terms of certification of accounts.

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Finally, to prevent groups of companies from escaping the obligation to appoint a Statutory Auditor by setting up several small entities, companies that control other companies would be required to appoint a Statutory Auditor when the parent companies and subsidiaries together exceed the aforementioned designation thresholds, independently of the obligation to prepare consolidated financial statements.

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Provision would also be made to abolish the obligation incumbent on SAS to appoint an auditor when they control or are controlled by one or more companies.

The bill specifies that current terms of office would not be affected by the entry into force of these provisions and would continue until their expiry.

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(III) Development of the issue of preferred shares (Art. 28): 

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The bill would authorize (as is the case today for SAS), SAs and SCAs to issue preferred shares with multiple voting rights and would make the creation of preferred shares with double voting rights more flexible. by abolishing the obligation for them to be fully paid up and to justify registration by name for at least 2 years.

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(IV) Fixing the remuneration of the business manager in the event of receivership (Art. 14) :

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Today, the Commercial Code provides that, within the framework of a receivership procedure, it is up to the judge-commissioner to fix the remuneration of the directors of the legal person.

The bill would make it possible to maintain the remuneration of the business manager as it exists on the day of the opening of the receivership proceedings, unless otherwise decided by the judge-commissioner seized at the request of the judicial administrator or the ministry. audience.

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(V) Neutralization of all reverse solidarity clauses in lease contracts (Art. 19) :

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Commercial leases traditionally include solidarity clauses which, in the event of assignment of the lease, leave the assignor jointly and severally liable to the lessor for the payment of the rents due by the purchaser of the lease.

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Some lease contracts include so-called reverse solidarity clauses under which the purchaser of the lease is jointly and severally liable, for the benefit of the lessor, with the assignor for the rents owed by the latter.

In the event of assignment of the lease within the framework of a receivership procedure, these reverse solidarity clauses led the buyer to have to pay the lessor rents which had not been paid by the assignor._cc781905-5cde-3194-bb3b -136bad5cf58d_

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This was likely to deter some buyers from making a takeover offer.

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The bill would correct this point by providing that in the event of the transfer of a lease occurring within the framework of a plan for the transfer of a company in collective proceedings, the reverse solidarity clauses making the transferee of a lease guarantor , with the assignor, rents due on the date of the assignment would be deemed unwritten.

 

The bill includes many other measures aimed in particular at facilitating the creation, transmission, growth of businesses and the rebound of entrepreneurs. These measures will be the subject of a future article.

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The bill being currently under discussion before the National Assembly, it will be necessary to be patient before knowing which ones will be definitively adopted by my legislator.

 

Fabrice Segurel, lawyer, Cabinet ARTLEX, Nantes
Marine Baron, lawyer, Cabinet ARTLEX, Nantes