Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Minister of Agriculture and Fisheries,
Having regard to the Constitution, including article 38;
Considering Directive 2006/43/EC of the European Parliament and the Council of 17 May 2006 on the legal controls of the annual and consolidated accounts;
Seen the civil code;
Considering the trade code;
Considering the environmental code;
Considering the rural code, including title II of Book V;
Considering Act No. 2006-11 of 5 January 2006 on agricultural orientation, including Article 59;
The Council of State heard;
The Council of Ministers heard,
Order:
Chapter IV of title II of Book V of the Rural Code is amended to read:
I. - After Article L. 524-4, an article L. 524-4-1 is inserted as follows:
"Art. L. 524-4-1. - Any partner of an agricultural cooperative or a union of agricultural cooperatives has the right to obtain, at any time, the status and rules of procedure and the following documents concerning the last three fiscal years:
" - the annual accounts, if any, consolidated or combined accounts, the list of directors or members of the board and supervisory board;
" - the reports to the associates of the board of directors or the board of directors and the supervisory board, as the case may be, and the reports of the auditors who were submitted to the assembly;
" - the minutes of ordinary and extraordinary general assemblies.
"The statutes can provide, for the benefit of the associates, the right to obtain communication of other documents allowing them to be informed about the management and walking of the society.
"A decree determines the conditions for sending or making these documents available. »
II. - Section L. 524-6 is replaced by the following provisions:
"Art. L. 524-6. - Annual accounts include the balance sheet, the result account and the schedule, which form an inseparable whole. They are established in accordance with Articles L. 123-12 to L. 123-22 of the Commercial Code.
"Art. L. 524-6-1. - Farm cooperatives and their unions that control in an exclusive or joint manner one or more legal persons or exercise a significant influence on them under the conditions set out in Article L. 233-16 of the Commercial Code establish and publish annually under the conditions set out in Articles L. 233-18 to L. 233-27 of the Code, at the diligence of the board of directors or the executive, consolidated accounts and a report on the management of the group.
"The 2nd of Article L. 233-17 of the Commercial Code is applicable to agricultural cooperatives and their unions, with the exception of those that make public use of savings.
"Art. L. 524-6-2. - When the conditions of consolidation are not met, agricultural cooperatives and their unions forming a community of economic interests establish and publish combined accounts.
"An agricultural cooperative or a union of agricultural cooperatives is considered to be a community of economic interests with another agricultural cooperative, a union of agricultural cooperatives or another entity, where there is a bond of cohesion and unity that can result from an agreement, a common management or a sharing of services of a social, commercial, technical or financial nature. A community of economic interests is also deemed to exist when an agricultural cooperative or a union of agricultural cooperatives earns more than 50% of its turnover with another agricultural cooperative or union of agricultural cooperatives.
"When cooperatives and unions, members of a union of agricultural cooperatives, publish combined accounts, they are not required to integrate within the scope of the consolidation to which they must, if any, proceed what falls under their membership in this union.
"A report on group management is published together with the combined accounts.
"Art. L. 524-6-3. - Consolidated or combined accounts are certified by at least two auditors. When the agricultural cooperative or the union of agricultural cooperatives makes public use of savings, at least one of the two persons responsible for the legal control of accounts shall not be employed by a registered federation for the revision referred to in Article L. 527-1 of this Code.
"Art. L. 524-6-4. - A decree in the Council of State sets out the special conditions applicable to the consolidation and combination of the accounts of agricultural cooperatives and their unions. »
Section L. 523-5 of the Rural Code is replaced by the following provisions:
"Art. L. 523-5. - The direct or indirect participation of cooperative agricultural societies and their unions in one or more legal persons shall be reported to the High Council for Agricultural Cooperation. »
Chapter IV of title II of Book V of the Rural Code is amended to read:
I. - After the article L. 524-1 are inserted the following articles:
"Art. L. 524-1-1. - The statutes may foresee, for the calculation of the quorum and majority, that the partners participating in the assembly are deemed present by videoconference or by means of telecommunications allowing their identification and guaranteeing their effective participation.
"Art. L. 524-1-2. - Unless otherwise provided in the statutes, the rules of procedure of the co-operative or union may provide that, for the purposes of calculating the quorum and majority, directors, members of the supervisory board or members of the board who participate in the meeting by means of videoconference or telecommunications, allowing their identification and guaranteeing their effective participation.
"This provision is not applicable to the adoption of decisions relating to the establishment of annual accounts, an inventory, the report to the associates provided for in section L. 524-2-1, and the transactions provided for in sections L. 524-6-1, L. 524-6-2 and L. 524-6-3, as well as any other decisions provided by the statutes.
"The statutes may provide for a right of opposition to a specified number of members of the legislative proceeding. »
II. - After the article L. 524-2-1 are inserted the articles L. 524-2-2 and L. 524-2-3 as follows:
"Art. L. 524-2-2. - For agricultural cooperatives and unions operating at least one facility on the list set out in the IV of section L. 515-8 of the Environmental Code, the annual report of the Board of Directors or the Director to the Annual General Meeting of the Agricultural Cooperative or the Union:
" - exposes the policy of prevention of the risk of technological accidents conducted by the agricultural cooperative or the union;
" - reports on the company's ability to cover its civil liability due to the operation of such facilities;
" - specifies the means provided by the company to ensure the management of the compensation of victims in the event of a technological accident involving its responsibility.
"Art. L. 524-2-3. - The annual report of the board of directors or the directorate to the annual general assembly of the agricultural cooperative or union indicates the proportion of social shares held by its employees, its affiliates and those of the cooperative agricultural organizations to which it adheres pursuant to the 9th of Article L. 522-3.
"When these shares represent more than 3% of social capital, interest or participation agreements define the terms and conditions for the admission of at least one of the employees to non-cooperators partners in the board of directors or supervisory board.
"The statutes may provide that, where the agricultural cooperative corporation or union includes non-cooperative partners employed by itself, its subsidiaries or cooperative agricultural organizations to which it adheres, the board of directors or the supervisory board shall include members elected by the employees of the cooperative or union, its subsidiaries or co-operating organizations to which it adheres.
"When the number of directors or members of the supervisory board elected by the employees is equal to or greater than two, the engineers, managers and assimilates have at least one seat. »
III. - The second paragraph of Article L. 524-4 is supplemented by the following provisions:
"In unions with two co-operating partners, none of the two partners can have more than three-fifths of the votes. »
Section L. 526-2 is amended to read:
1° In a, the words: "with the consent of the administrative authority or with that of public authorities or donor institutions when this fraction has resulted from their liberalities" are deleted;
2° In b, the words: "with the consent of the administrative authority" are deleted;
3° It is added a paragraph to read:
"These operations are reported to the High Council for Agricultural Cooperation. »
Chapter IX of title II of Book V of the Rural Code is amended to read:
1° 2° of Article L. 529-2 is replaced by the following provisions:
« 2° Who participates directly or indirectly, in an ordinary or occasional manner, in a competing activity of the corporation that it administers, when the said activity is carried out by a company that is not controlled within the meaning of the provisions of section L. 233-3 of the Commercial Code, by the agricultural cooperative or the union that it administers; »
2° 1° of Article L. 529-3 is replaced by the following provisions:
« 1° Who participates directly or indirectly, in an ordinary or occasional manner, in a competing activity of that of the corporation that it directs or unions to which it is adherent, when the said activity is carried out by a company that is not controlled within the meaning of the provisions of Article L. 233-3 of the Commercial Code, by the agricultural cooperative or the union that it directs; "
Chapter VII of Book V, title II of the Rural Code is amended to read:
I. - Section L. 527-1 is amended to read:
1° The first paragraph is replaced by the following:
"Agricultural cooperatives and their unions are required to join a federation of cooperatives, approved by the administrative authority, with the aim of carrying out, under the name of revision, controls on the conformity of their situation and their operation to the principles and rules of cooperation. »
2° It is added a paragraph to read:
"The federations are headed by a directorate, who is acting under the control of a supervisory board under the conditions set out in sections L. 225-57 to L. 225-95-1 of the trade code. Only members may be members of the board of registered revisors of the federation. They are designated by the Supervisory Board after agreement of the National Review Association referred to above. The representatives of agricultural cooperatives and unions whose accounts are controlled by the federation may not sit on the supervisory board. »
II. - It is created an article L. 527-1-1 as follows:
"Art. L. 527-1-1. - Within and on behalf of the registered federations for the revision referred to in Article L. 527-1, the legal control missions of the accounts shall be carried out by the physical persons on the list provided for in Article L. 822-1 of the Commercial Code. By derogation from the provisions of 2° of Article L. 822-10 of the same code, these persons may be employed by the federation but may not then exercise other legal control of the accounts. They may, on the other hand, be empowered, as an authorized reviewer, to carry out the compliance monitoring missions provided for in Article L. 527-1. »
III. - The third paragraph of Article L. 612-1 of the Commercial Code is replaced by the following provisions:
"For agricultural cooperatives and agricultural collective interest companies that do not have the commercial form and do not make public use of savings, this obligation may be satisfied, under the conditions set out in Article L. 527-1-1 of the rural code, by the use of the service of a registered federation for the revision referred to in Article L. 527-1 of the same code. »
I. - The title of chapter VI of title II of Book V of the Rural Code is replaced by the following title: "Dissolution - Liquidation - Fusion - Scission - Partial Intake of Assets".
II. - In this chapter, articles L. 526-1 and L. 526-2 constitute a section 1 entitled "Dissolution - Liquidation".
III. - It is created a section 2 as follows:
“Section 2
« Fusion - Scission - Partial Intake of Assets
"Art. L. 526-3. - One or more agricultural cooperatives or unions of agricultural cooperatives may, by means of a merger, transmit to an agricultural cooperative corporation or to a union of existing agricultural cooperatives or to a new cooperative or union of cooperatives all their active and passive heritage.
"An agricultural cooperative or a union of agricultural cooperatives can also, through splitting, transmit its active and passive heritage to several cooperative companies or unions of existing or new cooperatives.
"Melting or splitting leads to the dissolution without liquidation of the cooperative or union which disappears and the universal transmission of its heritage to the cooperatives or beneficial unions, in the state where it is at the date of the final realization of the operation.
"These possibilities are open to any agricultural cooperative or union of agricultural cooperatives in liquidation provided that the distribution of its assets has not been the subject of a start of execution.
"Inputs resulting from merger or split operations between agricultural cooperative companies or cooperative unions are recorded in the accounts of the agricultural cooperative or the union of beneficiary agricultural cooperatives for the values contained in the contribution treaty.
"The associates of agricultural cooperatives or unions of agricultural cooperatives who transmit their heritage through fusion or splitting become partners of agricultural cooperative societies or beneficiary unions under the conditions set out in Article L. 526-5.
"In exchange for the merger or split operation the partners receive a whole number of social shares of the agricultural cooperative corporation or the beneficial union under the conditions provided by the contract for an amount equal to the nominal value of the social shares they held in the society that transmits its heritage. Notwithstanding this provision, each partner receives at least one social share of the beneficiary corporation or union.
"Art. L. 526-4. - Any agricultural cooperative or union of agricultural cooperatives that participates in any of the transactions referred to in Article L. 526-3 establishes a merger or splitting project.
"A decree in the Council of State sets out the terms of advertising and information of the partners whose project must be the subject.
"The merger or split project is submitted to the extraordinary general assembly of the associates of each agricultural cooperative or union of agricultural cooperatives who participate in the operation. The Extraordinary General Assembly shall be convened under the conditions of summons and quorum applicable to extraordinary general assemblies which decide the amendments of statutes other than those provided for in Article L. 523-2. It adopts the draft submitted to it by a two-thirds majority of the members present or represented.
"A special report on the proposed operation is prepared under conditions established by decree in the Council of State; This report includes the effects of the operation on the statutory commitments of all or part of the partners or members, whether or not co-operators, the cooperative corporation or the union of agricultural cooperatives.
"Art. L. 526-5. - On the effective date of the merger or split, the statutes of the receiving companies of the contributions are opposable to the co-operators and non-co-operators of the cooperative or union that disappears.
"However, if the merger or split operation has the effect of increasing the statutory commitments made by co-operators or non-co-operators partners of the cooperative or union that disappears, each of them must give its agreement.
"In the absence of an agreement, on the expiration date of its activity or the duration of its participation, if the partner, co-operator or non-operator, has not exercised its right of withdrawal, the commitments provided for in the status of the company beneficiary of the contribution are enforceable from the date of the renewal of its activity undertaking or the renewal of its participation.
"Art. L. 526-6. - The effective date of the merger or split shall be determined in accordance with the provisions of Article L. 236-4 of the Commercial Code. However, the potential retroactive nature of the transaction is without effect on the commitments of the partners or members.
"Art. L. 526-7. - Non-bond creditors and creditors who are not associated with agricultural cooperatives or unions participating in the merger or scission operation and whose receivable is prior to the advertisement given to the merger or scission project may file opposition to the merger or scission in conditions fixed by a decree in the Council of State that determines the competent court to receive the opposition.
"The court may reject the opposition or order either the reimbursement of claims, or the establishment of guarantees if the absorbent company or the companies that benefit from the split offer it and these guarantees are deemed sufficient by the court.
"In the event of a split, beneficiary companies may state that they will only be held from the portion of the liabilities of the split society to their respective responsibility and without solidarity between them. In this case, bond creditors may file opposition under the conditions set out below in this article.
"In the absence of a refund of claims or the establishment of orderly guarantees, the split is unopposable to that creditor.
"The opposition formed by a creditor does not prohibit the continuation of merger or split operations.
"The provisions of Articles L. 236-7, L. 236-13, L. 236-15, L. 236-18, L. 236-19 and L. 236-20 of the Commercial Code apply respectively to the holders of participatory securities and to the obligatory creditors referred to in Article L. 523-11 of this Code.
"Art. L. 526-8. - I. - An agricultural cooperative or a union of agricultural cooperatives can bring some of its assets to another agricultural cooperative or union of agricultural cooperatives. They may agree to submit the transaction to the provisions applicable to the scissions. In the latter case, the provisions of articles L. 526-3, L. 526-4, L. 526-6 and L. 526-7 shall apply.
“II. - When the contribution operation concerns a branch of activity or a particular production within a branch of activity, the co-operators partners of the agricultural cooperative members of the branch of activity or contributing to the transmitted production may become co-operators of the cooperative corporation or the union of agricultural cooperatives beneficiaries of the heritage under the conditions identical to those provided for the merger operations and in the particular terms set out in this section.
"A decree in the Council of State sets out the conditions under which co-operators associates who have signed an activity commitment in the industry or for a given production are consulted on the operation.
"The assets and liabilities of any particular industry or production within a transferred industry include all or part of the reserves made from or due to the particular activity or production.
“The provisions of articles L. 526-3 to L. 526-7 shall apply to this operation.
"Art. L. 526-9. - The provisions of Article 1844-5 of the Civil Code apply to any agricultural cooperative or union of agricultural cooperatives that holds all the social shares of a union of agricultural cooperatives to which it adheres.
"In the event of dissolution, the union leads to the universal transmission of the union's heritage to the agricultural cooperative that has remained uniquely associated with the union under the conditions and in the terms and conditions laid down in Article 1844-5 of the Civil Code.
"Art. L. 526-10. - When, as from the publicity formalities provided in the second paragraph of Article L. 526-4, and until the completion of the operation, the agricultural cooperative or the union of absorbing agricultural cooperatives has not ceased to hold all the shares or shares of the social that represent the entire capital of the absorbed society, it is not necessary to approve the merger by the extraordinary general assembly of the society referred to in paragraph 4
"These provisions may be implemented provided that the company absorbed is a limited liability corporation, an anonymous corporation or a simplified share corporation.
"The extraordinary general assembly of the agricultural cooperative or the union of agricultural cooperatives absorbing statue in the light of the special report on the proposed operation under Article L. 526-4. »
I. - Persons who have the status of a registered reviewer on the date of publication of this order may be registered on the list provided for in article L. 822-1 of the same code, under conditions established by decree in the Council of State, which may derogate from the 5th and 6th of L. 822-1-1 of the Commercial Code.
Until registration on this list, and no later than 29 June 2008, persons who have the status of a registered reviewer may exercise the legal control of the accounts of cooperatives and unions on behalf of and on behalf of the registered federations for the revision having designated them for that purpose on the date of publication of this order.
II. - The provisions of sections L. 526-3 to L. 526-10 apply to transactions undertaken more than one year after the issuance of this order. Cooperatives or unions that are parties to the transaction may, however, decide that these provisions apply prior to this deadline.
III. - The unions referred to in the second paragraph of Article L. 524-4 of the Rural Code shall have a period of one year from the date of the publication of this Order to comply with the provisions of this Article, in their drafting by this Order.
The Prime Minister, the Seal Guard, Minister of Justice, and the Minister of Agriculture and Fisheries are responsible, each with respect to the application of this Order, which will be published in the Official Journal of the French Republic.
Done in Paris, October 5, 2006.
Jacques Chirac
By the President of the Republic:
The Prime Minister,
Dominique de Villepin
Minister of Agriculture and Fisheries,
Dominic Bussereau
The Seal Guard, Minister of Justice,
Pascal Clément
