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Reforming the nullity regime in business law: what to know

Publié le 21 mars 2025 - Directorate for Legal and Administrative Information (Prime Minister)

In order to increase legal certainty, the nullity regime in business law has been reformed by an ordinance which will enter into force on 1er October 2025. Analysis.

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Image 1Crédits: Gorodenkoff - stock.adobe.com

Following consultations with professionals, practitioners and company representatives, the Ordinance of 12 March 2025 amends the nullity regime in business law and brings together the provisions relating to this regime in the Civil Code in order to provide greater clarity.

The aim of this reform is to address the uncertainties and risks inherent in this regime.

It therefore brings a number of new features.

Introduction of the triple test for the pronunciation of a nullity

At present, the invalidity of social decisions is pronounced automatically.

The order amends that and introduces a “triple test”. Thus, in order for the decisions of the company to be declared invalid, 3 conditions must be met :

  1. the applicant must demonstrate that the irregularity is detrimental to his interests;
  2. the irregularity must have influenced the content of the social decision;
  3. the consequences of the nullity must not be excessive (on the day of its pronunciation).

Modification of the effects of invalidity

In order to preserve the situation of the businesses concerned, the effects of the invalidity are amended by the Ordinance of 12 March 2025.

So, from the 1er october 2025, nullity of the appointment or improper retention of a body or member of a body of the business will no longer drive the nullity of the decisions taken by that court.

It is added that the effects of the nullity may be deferred if the retroactivity of the nullity of a social decision produces ‘manifestly excessive’ effects for the social interest.

Previously set at 3 years, the order is reduced to 2 years the length of the limitation period in respect of actions for a declaration of invalidity of the business, of social decisions adopted after its formation or of contributions.

Invalidity for breach of the articles of association: important developments

An important change will apply from the entry into force of the ordinance since, unless otherwise provided by law, a breach of the articles of association shall not constitute grounds for invalidity.

In addition, the order creates the possibility for LOCK: titleContent to provide in their statutes for the nullity of decisions of companies taken in breach of the rules which they have laid down. No invalidity proceedings are therefore possible outside these provisions.