The members of a SAS voted to exclude one of the members without the latter being able to take part in the vote. The latter therefore seeks the annulment in court of that decision on grounds of irregularity.

The Court of Appeal dismisses the applicant’s application for annulment. It considers that the inclusion in the statutes of an SAS of the possibility of excluding a member without the latter being able to vote does not make that exclusion irregular. It is based on Article L.227-9 of the Commercial Code, according to which ‘the statutes shall determine the decisions to be taken collectively by the members in the forms and conditions which they lay down’. The partner is appealing to the Court of Cassation.

The Court of Cassation quashes and quashes the appeal decision. In its view, the clause prohibiting the partner who is subject to an exclusion from participating in the vote is irregular (‘deemed not to have been written’). Article 1844 of the Civil Code states that ‘every partner has the right to participate in collective decisions’.

Thus, it is not possible to state in the statutes of an SAS that a member may be excluded without taking part in the vote on his exclusion.