Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Seal Guard, Minister of Justice,
Having regard to the Constitution, including article 38;
Having regard to Directive 2012/30/EU of the European Parliament and of the Council of 25 October 2012 to coordinate, in order to make them equivalent, the guarantees that are required in the member states of the societies within the meaning of Article 54, second paragraph, of the Treaty on the Functioning of the European Union, with a view to the protection of the interests of both partners and third parties, with regard to the constitution of the anonymous society and the maintenance and modification of its capital, including Articles 40 and 43 and 43
Vu le Civil codeincluding article 1843-4;
Vu le Trade codeincluding books II and VIII;
Vu le Administrative Justice Codeincluding its article R. 123-20;
Vu la Act No. 2014-1 of 2 January 2014 enabling the Government to simplify and secure the lives of enterprises, including articles 3 and 22;
The Council of State heard;
The Council of Ministers heard,
Order:
Books II and VIII of the Commercial Code are amended in accordance with articles 2 to 36.
In the second paragraph of Article L. 221-14, the words: "commercial in the trade and corporate register" are replaced by the words: "publishing amended statutes in the trade and corporate register; this deposit may be made electronically. »
I. - Section L. 223-5 is repealed.
II. - In Article L. 229-6, the words: "Articles L. 223-5 and" are replaced by the words: "Article".
The first sentence of Article L. 223-26 is supplemented by the words: "subject to an extension of this period by a court order".
Section L. 225-38 is supplemented by the following paragraph:
"The prior authorization of the board of directors is motivated by justifying the interest of the agreement for the corporation, including by specifying the financial conditions attached to it. »
Section L. 225-39 is replaced by the following item:
"Art. L. 225-39.-The provisions of section L. 225-38 shall not apply to conventions relating to common transactions and entered into under normal conditions or to agreements between two companies, one of which holds, directly or indirectly, all the capital of the other, if any deducted from the minimum number of shares required to meet the requirements of the otherArticle 1832 of the Civil Code or Articles L. 225-1 and L. 226-1 of this Code. »
After the article L. 225-40, an article is inserted as follows:
"Art. L. 225-40-1.-The agreements entered into and authorized in previous years that have been continued in the last fiscal year are reviewed annually by the Board of Directors and communicated to the Auditor for the purposes of the preparation of the report under the third paragraph of section L. 225-40. »
Section L. 225-86 is supplemented by the following paragraph:
"The prior authorization of the supervisory board is motivated by justifying the interest of the convention for the company, including by specifying the financial conditions attached to it. »
Section L. 225-87 is replaced by the following item:
"Art. L. 225-87.-The provisions of section L. 225-86 shall not apply to conventions relating to common transactions and entered into under normal conditions or to agreements between two companies, one of which holds, directly or indirectly, all the capital of the other, if any deducted from the minimum number of shares required to meet the requirements of the otherArticle 1832 of the Civil Code or Articles L. 225-1 and L. 226-1 of this Code. »
After the article L. 225-88, an article is inserted as follows:
"Art. L. 225-88-1. - Agreements entered into and authorized in previous years that have been continued in the last fiscal year are reviewed annually by the Supervisory Board and communicated to the Auditor for the purposes of the preparation of the report under the third paragraph of section L. 225-88. »
Section L. 225-102-1 is supplemented by the following paragraph:
"The report under section L. 225-102 refers, except where they are conventions relating to current and normal transactions, the agreements made, directly or by interposed person, between, on the one hand and as the case may be, one of the members of the board or the supervisory board, the director general, one of the principals, one of the directors indirectly, one of the directors or one of the shareholders having »
In the first paragraph of Article L. 225-126, the words: "the third working day before the general assembly at zero o'clock, time of Paris" are replaced by the words: "on the date of registration in account of the shareholders before the general assembly, fixed by decree in the Council of State".
The third paragraph of section L. 225-132 is replaced by the following paragraph:
"When the preferential right to subscription is not detached from negotiable shares, it is subject to the same conditions as the action itself. Otherwise, this right is negotiable for a period equal to that of the exercise of the right of subscription by shareholders but begins before the opening of the right and ends before its closing. The information of the shareholders on how to exercise and negotiate their preferential right is specified by decree in the Council of State. »
The last sentence of the first paragraph of Article L. 225-130 is replaced by the following two sentences: "The sale of capital securities that could not be attributed individually and corresponding to the broken forming rights as well as the distribution of the sums from that sale to the rights holders intervene within a period fixed by decree in the Council of State. When these capital securities are admitted to the negotiations on a regulated market or to the operations of a central depositary, the sale of these securities corresponding to the broken forming rights is carried out, unless the general assembly decides otherwise, in accordance with the terms fixed by decree in the Council of State. »
Article L. 228-6 is amended as follows:
1° The first paragraph is replaced by the following:
"Despite all statutory provisions to the contrary, companies whose securities are not admitted to negotiations on a regulated market or to the operations of a central depositary and which have carried out transactions that translate either by exchange of securities, or by awarding to shareholders new securities of capital, may sell, on a simple decision of the board of directors, the policy or the manager, and according to the terms fixed by decree individually in the Council of State, » ;
2° In the second paragraph, the words: "old titles or former rights to distributions or assignments are, as appropriate, cancelled and their holders" are replaced by the words: "constrained rights holders" and the words: "unclaimed securities" are replaced by the words: "unallocated capital securities. »
Section L. 228-6-1 is replaced by the following item:
"Art. L. 228-6-1.-In companies whose securities are admitted to negotiations on a regulated market, when the extraordinary general meeting of shareholders authorized an operation that translates either by trading securities or by awarding to shareholders new capital securities, the capital securities that could not be attributed individually and corresponding to broken forming rights are sold. The sale of these capital securities and the distribution of the sums from this sale to the holders of these rights shall take place under the conditions and according to the terms fixed by decree in the Council of State.
"In companies whose shares are admitted to the operations of a central depositary without being listed on a regulated market, the extraordinary general assembly of the shareholders who authorized a transaction that translates either by exchange of securities or by awarding to shareholders new capital securities, may decide the sale of capital securities that could not be attributed individually and corresponding to rights forming broken, in order to the distribution of the funds so collected between »
In the seventh paragraph of Article L. 228-1, after the words "capital securities" are inserted the words "or obligations".
Article L. 228-2 is amended as follows:
1° In the first paragraph, after the word "address", the words are inserted: "post and, if applicable, electronic";
2° In the third paragraph, after the word "accounts" are inserted the words: ", except for the communication of the e-mail address,"
3° It is supplemented by the following paragraph:
"Unless the contrary clause of the issuance contract and notwithstanding the silence of the statutes, any legal person issuing obligations, other than legal persons of public law, has the power to request the identification of holders of such securities under the conditions and in the manner prescribed in the preceding paragraphs. »
In the first paragraph of Article L. 228-3, after the words: "in a nominative form", the words "incorporated by bonds or titles".
Section L. 228-3-2 is amended as follows:
1° In the first paragraph, the words "as defined in the third paragraph of the same article" are replaced by the words "or obligations";
2° In the second paragraph, are inserted after the words: "actions" the words: "or obligations" and after the words: "actions" the words: "or obligations";
3° The article is supplemented by the following words: ", respectively, to shareholder assemblies if it is capital securities or giving access to the capital or general assemblies of bonds if it is obligations".
Section L. 228-3-3 is amended as follows:
1° In the first paragraph, after the word: "actions", the words ", obligations" are inserted and after the word: " shareholders" are inserted the words: " or bondholders";
2° The second paragraph is replaced by the following paragraph:
"In the event that the registered person knowingly ignores the provisions of sections L. 228-1 to L. 228-3-1, the court in which the corporation has its head office may, as the case may be, either of the corporation issuing shares or of one or more of its shareholders holding at least 5% of the capital or of the corporation issuing bonds or of a »
Section L. 228-12 is amended as follows:
1° The first paragraph is preceded by the number: "I";
2° In the first paragraph, the words ", the redemption" are deleted;
3° In the second paragraph, the words "of redemption or" are deleted;
4° It is complemented by seven sub-items:
"II.-Preferential shares may be redeemed under the conditions and in the manner provided for in sections L. 225-204 to L. 225-214.
"III.-Where the statutes that create a class of shares of preference have provided, prior to their subscription, the principle of redemption and have organized the terms and conditions thereof, shall only be satisfied, in addition to the conditions mentioned in Articles L. 225-210 to L. 225-212, the following conditions:
« 1° The acquisition can only be made by means of distribuable sums within the meaning of Article L. 232-11 or the proceeds of a new issue of capital securities made for this redemption;
« 2° The value of the reservation referred to in the third paragraph of Article L. 225-210 is calculated by reference to the nominal value of the only redeemed preference shares. This reserve may not, except in the event of a reduction of the capital subscribed, be distributed to shareholders. It can only be used to increase capital by incorporation of reserves;
« 3° Where the statutes provide for the payment of a shareholder premium as a result of the redemption, the premium may only be deducted from distribuable amounts within the meaning of section L. 232-11 or on a reserve for that purpose other than that provided for in the preceding paragraph. This reserve may not, except in the case of a reduction of the capital subscribed, be distributed to shareholders. It can only be used to increase the capital subscribed by incorporation of reserves, to cover the costs of issuance of shares of preference or to make the payment of a premium in favour of holders of shares of preference redeemable;
« 4° The redemption is on the exclusive initiative of society;
« 5° In no case can these transactions affect the equality of shareholders in the same situation. »
After the article L. 228-12, an article L. 228-12-1 is inserted as follows:
"Art. L. 228-12-1. - I. - Preferably redeemed shares are used for the purposes provided for in articles L. 225-204 to L. 225-214.
“II. - Preferential shares purchased in accordance with the provisions of Article L. 228-12 III may be retained in accordance with the terms and conditions set out in Articles L. 225-210 to L. 225-214.
"They may be transferred or transferred by any means.
"If the regulations and the issuing contract provide, they may also be cancelled as part of a capital reduction. In this case, the provisions of Article L. 225-205, unless the reservation referred to in 2° of Article L. 228-12 is assigned to the refund of the creditors, the balance that may then be distributed to the shareholders. »
In the first and second paragraphs of Article L. 225-211, the references: "L. 225-209-2, L. 225-208 and L. 225-209" are replaced by the references: "L. 225-208, L. 225-209, L. 225-209-2, L. 228-12 and L. 228-12-1".
Section 4 of Chapter VIII of Title II of Book II of the Commercial Code is amended to read:
1° The title of section 4 is replaced by the following title: "Representative securities of a receivable right";
2° It is inserted at the top of section 4 an article L. 228-36-A as follows:
"Art. L. 228-36-A.-A corporation may issue any securities representative of a right of receivable under the terms of this book, as well as any other securities representative of a right of receivable under the conditions prescribed by the statutes or, where applicable, by the issuing contract. » ;
3° Former section 4 becomes subsection 1, entitled "Subsection 1: Participatory titles", new section 4 (the rest without change);
4° Section 5 becomes sub-section 2, entitled "Subsection 2: Obligations", new section 4 (the rest without change).
Section 6 of chapter VIII, title II, of Book II, becomes section 5 of chapter VIII, title II, of Book II, entitled “Section 5: Securities giving access to capital or giving right to the award of debt securities".
Section L. 228-91 is amended as follows:
1° The second and third paragraphs are repealed;
2° In the fifth paragraph, which became third, the words "claims" are replaced by the words "a right of receivable".
Section L. 228-92 is replaced by the following provisions:
"Art. L. 228-92.-Emissions of securities governed by section L. 228-91, which are capital securities giving access to other capital securities or giving entitlement to the attribution of debt securities and securities that give access to capital securities to be issued, are authorized by the extraordinary general meeting of shareholders in accordance with sections L. 225-129 to L. 225-129-6. The Board shall decide on the report of the Board of Directors or the Director and the special report of the External Auditor.
"In this case, shareholders have, proportionally to the amount of their shares, a right preferably to the subscription of these securities. This right is governed by the provisions applicable to the right of preference to the subscription to capital securities in accordance with articles L. 225-132 to L. 225-141.
"Emissions of securities governed by Article L. 228-91, which are debt securities that are entitled to the award of other debt securities or that give access to existing capital securities, are permitted under the conditions provided for in Article L. 228-40 if it is to issue obligations or participatory securities, or in any other case, under the conditions determined by the issuing company to the provisions of Article 228-40 »
Article L. 228-93 is amended as follows:
1° In the first paragraph, the words: "to capital of" are replaced by the words: "to capital securities to be issued by"; the words: "of the society of which it owns" are replaced by the words: "by the society of which it owns";
2° In the second paragraph, the words "by Article L. 228-92" are replaced by the words "in the first paragraph of Article L. 228-92";
3° It is complemented by four sub-items:
"Emissions of securities that are capital securities that give access to other existing capital securities or give entitlement to the award of receivables are authorized by the extraordinary general meeting of shareholders in accordance with sections L. 225-129 to L. 225-129-6.
"The shareholders of the corporation to issue the capital securities referred to in the first paragraph shall, proportionally to the amount of their shares, have a right preferably to the subscription of those securities. This right is governed by the provisions applicable to the right of preference to the subscription to capital securities in accordance with Articles L. 225-132 to L. 225-141.
"In cases where the application of the fourth paragraph of this section confers a preferential right of concurrent subscription to shareholders of several companies, meetings that authorize such emissions shall, unless the issuance decision is null and void, authorize the deletion of the preferential right of shareholder subscription in one or more of these companies.
"Emissions of securities that are debt securities that give access to existing capital securities or give entitlement to other debt securities are permitted under the conditions set out in Article L. 228-40 if it is to issue bonds or participatory securities, or in any other case, under the conditions determined by the issuing company in accordance with the provisions of Article L. 228-36-A. »
It is re-established an article L. 228-94and read:
"Art. L. 228-94.-A equity corporation may issue securities giving access to existing capital securities or giving entitlement to the allocation of debt securities of another corporation of which it does not directly or indirectly own more than half of the capital or of which more than half of the capital is not directly or indirectly owned by that other corporation. The terms and conditions for access or attribution of these securities are defined by the issuance contract.
"The emissions of securities referred to in the preceding paragraph, which are capital securities giving access to other existing capital securities or giving entitlement to the award of receivables, are authorized by the extraordinary general assembly of shareholders in accordance with sections L. 225-129 to L. 225-129-6.
"The emissions of securities referred to in the first paragraph, which are debt securities giving access to existing capital securities or giving entitlement to the allocation of other receivables, are permitted under the conditions provided for in Article L. 228-40 if it is to issue bonds or participatory securities, or in other cases, under the conditions determined by the issuing company in accordance with the provisions of Article L. »
In Article L. 228-95, the words: "and the third paragraph of Article L. 228-91" are replaced by the words: "paragraph of Article L. 228-92 and the third and fourth paragraphs of Article L. 228-93".
In Article L. 228-97, the words "debtedness" are replaced by the words "of a right of receivable".
In the second paragraph of Article L. 228-98:
1° The words: "or by the emission contract" are deleted;
2° After the word: "authorized" are inserted the words: "by the emission contract or".
After the sixth paragraph of Article L. 228-99, two sub-items are inserted:
"The issuing contract may provide for additional protection measures for all holders of securities giving access to capital securities.
"When there are securities that give access to capital, the corporation to issue these capital securities must, when it acquires its own shares under the conditions set out in sections L. 225-207, L. 225-208 or L. 225-209, and if the acquisition price is higher in the stock exchange, to an adjustment of the terms of subscription, the basis of conversion, the terms and conditions of exchange or attribution initially provided, »
In the third paragraph of Article L. 228-101, the reference: "L. 228-91" is replaced by the reference: "L. 228-92";
Section L. 821-5-2 is amended as follows:
1° In the first paragraph, the words "of the European Community" are replaced by the words "of the European Union";
2° After the second preambular paragraph, a sub-item reads as follows:
"The High Council of the Office of the Auditors may, on an exceptional basis, authorize the officials of the authorities of the non-member States of the European Union to attend the periodic inspections referred to in article L. 821-7. During these controls, conducted under the supervision of the High Council, officials of these authorities cannot directly request the External Auditor to communicate information or documents. »
Article 1843-4 of the Civil Code is amended as follows:
1° In the first paragraph, the words: "In all cases where the assignment is planned" are replaced by the words: "I.-In cases where the law refers to this section to set the terms and conditions for the price of an assignment";
2° After the first paragraph, three subparagraphs are added:
"The designated expert is required to apply, where they exist, the rules and procedures for determining the value set out in the corporation's statutes or by any agreement binding the parties.
"II.-In cases where the Articles of Association provide for the transfer of the social rights of a partner or the redemption of such rights by the company without their value being determined or determinable, the latter shall be determined, in case of dispute, by an expert designated under the conditions of the first paragraph.
"The designated expert is required to apply, where they exist, the rules and procedures for determining the value of any agreement binding the parties. »
I. - The board of directors or, as the case may be, the supervisory board of an anonymous corporation may decide not to apply sections L. 225-40-1 and L. 225-88-1 of the Commercial Code to the conventions authorized prior to the date of publication of this Order and which fall within the scope of sections L. 225-39 and L. 225-87 of the same Code in their drafting from the order.
II. - The provisions of Article 12 come into force on 6 October 2014.
III. - The provisions of Article 13 come into force on a date fixed by decree in the Council of State and no later than 1 October 2016.
IV. - The provisions of articles 14, 15 and 16 come into force on April 1, 2015.
V. - The provisions of Chapter V shall apply to obligations issued from the date of entry into force of the latter.
This Order, with the exception of Part 3 II, is applicable in the Wallis and Futuna Islands.
The Prime Minister, the Minister of Justice, the Minister of Economy, Production Recovery and Digital Affairs and the Minister of Overseas are responsible for the application of this Order, which will be published in the Official Journal of the French Republic.
Done on 31 July 2014.
François Hollande
By the President of the Republic:
The Prime Minister,
Manuel Valls
The Seal Guard, Minister of Justice,
Christiane Taubira
Minister of Economy, Production Recovery and Digital,
Arnaud Montebourg
Minister of Overseas,
George Pau-Langevin
