- Current issues in the SAS
- Is it mandatory to convene the general meeting for the approval of the accounts and the allocation of the result for the closed financial year?
- If the holding of a general meeting (in the sense of "meeting") is mandatory, is it possible to use a videoconference system or other means of remote communication to comply with the rules of confinement?
- If the holding of a general meeting (in the sense of “meeting”) is mandatory, within what period of time must the president or the competent collegial body of the SAS convene the AGOA?
- Emergency measures to help companies
Current issues in the SAS
Is it mandatory to convene the general meeting for the approval of the accounts and the allocation of the result for the closed financial year?
The legal obligation
The decision to approve the annual accounts and to allocate profits must be taken collectively by the partners under the conditions provided for in the articles of association (C. com. art. L 227-9, al. 2).
Depending on the drafting of the statutes, two options are possible:
1. It is possible to have recourse to the signing of a private deed containing all the decisions taken unanimously by the community of shareholders. The period of confinement should therefore not pose any difficulty.
2. The organization of a real meeting, physical or virtual, during which all the partners can present their point of view and vote on the resolutions put to the vote. The confinement period can make it complicated, if not impossible, to hold AGOA (especially if the amendment also requires the holding of a meeting).
If the holding of a general meeting (in the sense of "meeting") is mandatory, is it possible to use a videoconference system or other means of remote communication to comply with the rules of confinement?
The legal obligation
Respect the procedures for holding the AGOA stipulated in the statutes (C. com. art. L 227-9, al.2.).
If the use of videoconferencing or other means of communication (telephone, etc.) is possible: the holding of the AGOA can take place during the confinement period, under the double condition of:
- be able to convene it according to the procedures provided for in the articles of association and;
- to be able to respect the statutory forms, while ensuring the legal certainty of AGOA (which requires the possibility of verifying the identity of the member participating and voting in AGOA).
If the statutes do not provide for these means of communication, the holding of the AGOA will have to wait until the end of the confinement, except to modify the statutes (which also imposes the respect of a certain formalism.
Only the SAS in which the modification of the articles of association by a private deed with the unanimous agreement of the partners is possible, will be able to circumvent the obstacle of confinement.
If the holding of a general meeting (in the sense of “meeting”) is mandatory, within what period of time must the president or the competent collegial body of the SAS convene the AGOA?
The legal obligation
In single-person SAS: the classic deadline of 6 months from the end of the financial year must be respected (C. com. art. L 227-9, al.3.).
In multi-personal SAS: No deadline is provided for the presentation of the accounts and the allocation of the result.
The articles of association may provide for compliance with a deadline, such as the classic deadline of 6 months from the end of the financial year.
Limit in practice
The payment of dividends whose distribution is decided in AGOA must take place within 9 months of the end of the financial year.
No. If the 6-month period appears in the articles of association, it is always possible to gain flexibility to decide, by a private deed containing the unanimous agreement of the partners, to modify the articles of association (provided that such a procedure is provided in the said statutes).
Emergency measures to help companies
The emergency law to deal with the Covid-19 epidemic of March 22, 2020 has provided for dedicated measures to respond to the difficulties linked to the holding of general meetings and meetings of deliberative bodies, as well as the rules for the approval and publication of the annual accounts, during this period of crisis and confinement (Article 7 of the law).
“(…), the Government is authorized to take by ordinances, within three months from the publication of this law, any measure , which may come into force, if necessary, from March 12, 2020:
f) Simplifying and adapting the conditions under which meetings and collegial governing bodies of private law legal persons and other entities meet and deliberate , as well as the rules relating to general meetings;
g) Simplifying, specifying and adapting the rules relating to the establishment, closing, auditing, review, approval and publication of the accounts and other documents that legal persons governed by private law and other entities are required to to file or publish, in particular those relating to deadlines, as well as to adapt the rules relating to the allocation of profits and the payment of dividends ; »
Objective #1
Adapt the applicable rules for holding general meetings to take into account the measures restricting travel and gatherings preventing these meetings and bodies from being held.
The explanatory memorandum suggests that the adaptations will relate to the rules "relating to the convening, information, deliberation and holding of these meetings and bodies as well as the information, participation and by vote of their members.
Objective 2
Dealing with the impact of restrictive travel and gathering measures on the activity of accountants and auditors, in particular on:
i) the processes for entering, reporting and consolidating company accounting data and;
ii) the conduct of their statutory audit assignments
In particular, to prevent delays in deadlines and difficulties in the procedures for closing and approving accounts from being likely to affect decisions on the allocation of profits and the payment of dividends in the event of postponement. meetings of the corporate bodies called upon to rule on these decisions
Only ordinances can provide us with details on the adaptations put in place.
