Annulment of a general meeting decision for irregularity (SAS/SARL)

A minority partner (associé) in a SARL (French limited liability company) receives a letter on a Monday inviting him to a meeting set for the Friday of the same week, when he should have been given fifteen days’ notice. A shareholder in an SAS (French simplified joint-stock company) discovers after the event that a decision to sell assets was voted through without his ever having received a notice of meeting. In both cases, the same question arises: can the resolution be annulled, and if so, within what period must action be taken? This guide sets out the regime of nullity for failure to give notice or late notice, the conditions laid down since the 2023 reform, the time limit for going to court, and the important differences between the SAS and the SARL.

What an irregularity in the notice of meeting covers

The notice of meeting is the instrument by which the partners are informed that a meeting is to be held, its date, its place and its agenda. It guarantees a fundamental right: that of taking part in collective decisions and voting with full knowledge of the facts. An infringement of that right is a formal defect in the general meeting capable of affecting the validity of the resolutions adopted.

Two situations must be distinguished, as they are not equally serious in the eyes of the judge.

Failure to give notice

Failure to give notice concerns the partner who was never summoned. He or she received no letter, no email provided for by the articles of association, no information about the holding of the meeting. This is the most serious irregularity, because it purely and simply deprives the partner of the right to take part. The failure may be total (no partner summoned) or partial (a single partner overlooked).

Late notice

Late notice concerns the partner who was summoned, but too late, that is, in breach of the statutory or contractual time limit. The partner receives the notice, but within too short a period to prepare usefully for the meeting, examine the documents and, where appropriate, arrange representation. Late notice is an irregularity as to timing, distinct from outright failure to give notice.

Alongside these two situations, other formal defects may affect the notice: an incomplete or imprecise agenda, failure to provide the preparatory documents, a notice issued by a person without authority, a method of notice that does not comply with the articles of association. The legal reasoning remains similar, but this article concentrates on failure and lateness, which give rise to most of the litigation.

The rules on notice of meeting in a SARL

The SARL is subject to a precise statutory formality, which makes the irregularity easier to identify. Notice of a general meeting of a SARL is governed by Article L. 223-27 of the French Commercial Code and by Article R. 223-20 of the same Code.

Who gives notice and in what form

The meeting is in principle convened by the manager (gérant). Failing that, it may be convened by the statutory auditor (commissaire aux comptes), if there is one, or by an agent appointed by the court at the request of any partner. One or more partners holding a fraction of the capital may also request that a meeting be held. The full range of the rights of a minority partner in a SARL, including in situations of deadlock and abuse of majority, is set out in our dedicated article.

Article R. 223-20 requires a precise form: partners are summoned by registered letter. The articles of association may provide for notice by electronic means, subject to the prior agreement of the partners concerned. Oral notice, a simple informal message or a notice sent to an out-of-date address does not meet this requirement and amounts to an irregularity.

The notice period for a general meeting of a SARL

This is the point most closely watched in practice. Article R. 223-20 of the French Commercial Code sets a period of at least fifteen days before the meeting. This period runs from the sending of the registered letter, not from its receipt. A notice sent twelve days before the meeting is irregular for lateness, even if the partner received it and was able to attend.

To this period is added a requirement of substance: the notice must state the agenda precisely enough for each partner to gauge the significance of the decisions put to the vote. The documents needed to inform the partners (annual accounts, management report, text of the resolutions) must be provided to them under the conditions laid down by the French Commercial Code and the articles of association.

The protective rule of Article L. 223-27

Article L. 223-27 of the French Commercial Code expressly provides that any irregularly convened meeting may be annulled. It nevertheless sets a decisive limit: an action for nullity is inadmissible where all the partners were present or represented at the meeting.

Any irregularly convened meeting may be annulled. However, an action for nullity is inadmissible where all the partners were present or represented.

The logic is simple: if all the partners are there, the defect in the notice has prejudiced no one. Full attendance cures the irregularity. A partner who was present and voted without reservation as to the conditions of his or her notice will therefore not be able, afterwards, to rely on the defect to obtain annulment.

The rules on notice of meeting in an SAS: freedom of the articles

The SAS rests on a philosophy opposite to that of the SARL. Article L. 227-9 of the French Commercial Code leaves it to the articles of association to determine which decisions must be taken collectively and the forms in which they are adopted. The law imposes no method of notice and no minimum period. The other differences in operation between the two corporate forms are compared in our guide to choosing between an SAS and a SARL.

No statutory notice period for a general meeting of an SAS

This is a frequent source of confusion. There is no statutory notice period for a general meeting of an SAS. The fifteen-day period of the SARL does not apply as of right to the SAS. It is the articles of association that set the period, the form (registered letter, email, hand delivery against receipt, publication on a dedicated platform) and the person giving notice.

This freedom has a major consequence: in the case of an SAS, an irregularity in the notice is measured not against the law, but against the articles of association and, where applicable, the internal rules or the shareholders’ agreement (pacte d’associés) that organises the methods of notice. The lawyer must therefore begin by reading carefully the clause of the articles relating to collective decisions.

What gives rise to an irregularity in the notice of a general meeting of an SAS

An irregularity in the notice of a general meeting of an SAS arises from breach of the rule the partners gave themselves. If the articles provide for notice by registered letter eight days before the meeting, a notice sent five days before is irregular for lateness, even though the SARL period would not have been exceeded. If the articles require notice by the president (président) and a managing director (directeur général) gives notice in his or her place without authority, the notice comes from a body without competence.

The corollary is protective for the company: articles that are silent or not very demanding reduce the scope for irregularities. This is why the drafting of the notice clause, often neglected on incorporation, deserves particular attention. Articles that refer to certain rules of the public limited company (société anonyme) (for example the mechanism of representation by proxy under Article R. 225-79 of the French Commercial Code, where the proxy is given for a single meeting) create obligations whose breach becomes sanctionable.

Failure or defect in notice: which nullities since the 2023 reform

Annulment of a resolution is never automatic. The regime of nullities in company law was thoroughly revised by Ordinance No. 2023-393 of 24 May 2023 reforming the regime of nullities in company law, which came into force on 1 October 2023. This reform tightened the conditions in which a formal defect can lead to a decision being set aside.

The principle: nullity that is discretionary and circumscribed

Nullity of resolutions of a meeting is governed by Article L. 235-1 of the French Commercial Code. A collective decision may be annulled only on the basis of breach of a mandatory provision of the law or of the texts governing contracts, or for breach of the articles of association in the conditions now specified by the reform.

The judge has a power of assessment. Nullity for a formal defect is discretionary: the court is never obliged to order it. It assesses the seriousness of the irregularity, its consequences and the conduct of the parties.

The test of influence and prejudice

The central contribution of the 2023 ordinance is the introduction of a review designed to avoid disproportionate nullities. For irregularities affecting a corporate decision, the judge checks that the irregularity was capable of influencing the outcome of the decision and that it causes prejudice to the person relying on it. In other words, the partner seeking nullity must show that the defect had a concrete effect, and not merely a theoretical significance.

This requirement changes the practical analysis. A total failure to summon a partner whose vote could have changed the outcome remains a serious irregularity, readily capable of justifying annulment. By contrast, a delay of a few days in summoning a partner who was able to attend the meeting, vote, and whose presence would not have changed the outcome, will be less readily sanctioned by nullity. The reasoning comes close to that of the SARL, where the presence of all the partners cures the defect.

In concrete terms, the partner contemplating an action must build a twofold demonstration: the irregularity itself (the formal defect in the general meeting), and then its influence on the decision and the resulting prejudice to him or her.

The time limit for bringing an action for nullity

A challenge to a resolution is not open indefinitely. The time limit is often the first obstacle, and it is frequently underestimated.

The three-year limitation period

Article L. 235-9 of the French Commercial Code sets the principle: actions for nullity of the company or of acts and resolutions subsequent to its incorporation are time-barred after three years. This three-year period runs from the day on which nullity is incurred, that is, for a resolution adopted at an irregularly convened meeting, from the date of the disputed meeting.

Three years may seem comfortable, but prolonged inaction weakens the claimant’s position. A partner who knew of the resolution and lets several financial years pass before acting risks having the claim perceived as opportunistic, all the more so as the decision may have produced effects on third parties and on the life of the company.

Cure of nullity

An action for nullity may also lapse before the expiry of the period. Where nullity rests on a defect that can be remedied, the disappearance of the cause of nullity on the day the judge rules prevents annulment from being ordered. A meeting may thus confirm or reiterate, in regular conditions this time, a decision previously tainted by a defect. This possibility of regularisation encourages managers to correct a defective notice quickly rather than wait for litigation.

SAS and SARL: the differences to bear in mind

The two corporate forms protect the partners’ right to take part, but by opposite routes. The distinction can be summarised in a few key points.

• The source of the rule: in a SARL, notice is governed by statute and regulation (Articles L. 223-27 and R. 223-20 of the French Commercial Code); in an SAS, it is governed by the articles of association (Article L. 227-9 of the French Commercial Code).
• The period: the SARL imposes a statutory period of at least fifteen days before the meeting, calculated from the sending of the registered letter; the SAS has no statutory period, only the period in the articles applies.
• The form: the SARL requires a registered letter, unless electronic notice has been agreed; the SAS follows the form chosen by the articles.
• Identifying the irregularity: in a SARL, it is enough to compare the notice with the law; in an SAS, the clause of the articles must first be read to determine the rule breached.

The regime of nullity and limitation, however, is common. In both cases, annulment requires passing the test of influence and prejudice resulting from the 2023 reform, and the action is time-barred after three years under Article L. 235-9 of the French Commercial Code. In both cases too, the presence or representation of all the partners neutralises the defect in the notice, expressly in a SARL under Article L. 223-27, and by the same logic in an SAS.

One point of vigilance deserves mention for the SAS: the more demanding the articles, the greater the risk of irregularity. A clause that multiplies notice formalities creates as many opportunities for litigation. Conversely, articles that are simple and clear limit the company’s exposure, without depriving the partners of their right to be informed.

Reacting to an irregular notice: what to do

For the partner who considers that he or she has been wronged, the first reaction should not be to attend the meeting without reservation, because taking part without protest may amount to a waiver of the right to challenge. If he or she chooses to take part, it is in his or her interest to have express reservations about the conditions of the notice recorded in the minutes (procès-verbal). If he or she was not summoned at all, the evidence of the failure must be gathered quickly: absence of a registered letter, an agenda never received, a dispatch date that was too late.

For the company and its managers, the best defence remains prevention. Checking the period before each dispatch, keeping proof of dispatch, verifying the authority of the person giving notice and, in an SAS, re-reading the clause of the articles before each sensitive meeting avoids most of the litigation. Where a defect is detected after the event, regularisation by a new, properly convened meeting is often preferable to waiting for the trial.

The guiding line is clear. Annulment of a resolution for irregularity in the notice is no longer automatic since the reform of 24 May 2023: it requires a real defect, an influence on the decision and a demonstrated prejudice, all within the three-year period of Article L. 235-9 of the French Commercial Code. Before bringing or defending an action, have the nature of the defect (failure or mere lateness), its source (the law for the SARL, the articles for the SAS) and its real effect on the vote analysed precisely. This characterisation, carried out at the outset, in itself determines the chances of success.

Frequently asked questions

What is the notice period for a general meeting of a SARL? Article R. 223-20 of the French Commercial Code requires a period of at least fifteen days before the meeting. This period runs from the sending of the registered letter giving notice, not from its receipt by the partner. A notice sent less than fifteen days before the meeting amounts to late notice capable of leading to nullity, unless all the partners were present or represented.

Is there a statutory notice period for a general meeting of an SAS? No. The law sets no notice period for a general meeting of an SAS. Article L. 227-9 of the French Commercial Code refers to the articles of association, which freely determine the period, the form and the person giving notice. The irregularity is then assessed against the clause of the articles, and not against the fifteen-day period specific to the SARL.

Does an irregularity in the notice automatically lead to nullity of the meeting? No. Nullity for a formal defect is discretionary and circumscribed. Since Ordinance No. 2023-393 of 24 May 2023, which came into force on 1 October 2023, the judge checks that the irregularity was capable of influencing the outcome of the decision and that it causes prejudice to the claimant. Mere lateness with no effect on the vote will be less readily sanctioned than a total failure to give notice.

Within what period must action be taken to annul an irregular resolution? An action for nullity is time-barred after three years under Article L. 235-9 of the French Commercial Code. The period runs from the day on which nullity is incurred, that is, in principle, the date of the disputed meeting. After that period, the claim is inadmissible.

Can a meeting still be challenged if one was present? The scope is narrow. In a SARL, Article L. 223-27 of the French Commercial Code makes an action for nullity inadmissible where all the partners were present or represented. A partner who was present and voted without reservation as to the conditions of his or her notice will therefore, in principle, no longer be able to rely on the defect. It is prudent to have reservations recorded in the minutes before any vote.

Is notice by email valid in a SARL? It is valid only if the articles of association provide for this method of notice and if the partner concerned has given prior agreement, in accordance with the texts governing notice in SARLs. Failing that, the registered letter remains the standard form. A notice by simple email not provided for by the articles amounts to a formal irregularity.

How can a defective notice be regularised to avoid annulment? A defect in notice can often be cured before the judge rules. The company may hold a new meeting, properly convened this time, to confirm or reiterate the disputed decision. Where the cause of nullity has disappeared on the day the court rules, annulment can no longer be ordered. Acting quickly remains preferable to waiting for litigation.