Decision-making in a simplified business of actions (SAS)

Verified 13 January 2023 - Directorate for Legal and Administrative Information (Prime Minister)

In a simplified equity business (SAS), decisions are taken collectively. They can be taken in assemblies (AGO: titleContent,AGE: titleContent), by a collective consultation or by an act. In contrast, in a single member simplified share business (SASU), decisions are taken by the single member. We present the rules for these decision-making processes.

LOCK

There are very few statutory rules for collective decisions within a SAS.

It is the partners who decide, during the drawing up of the statutes, the manner in which decisions are taken within the business. : the method of decision (written consultation, assembly, act), majority rules, etc.

Where the law does not impose anything, the statutes may provide that decisions shall be taken by the director. Where the statutes do not provide for anything, the type of decision (whether or not to amend the statutes) determines whether or not the decision should be taken collectively.

The methods of consultation are as follows:

What decisions should be taken at meetings?

The following decisions must be taken collectively by the partners:

  • Increasedepreciation, amortization or capital reduction
  • Merger or split and partial transfers of assets subject to the division regime
  • Appointment of auditors
  • Approval of the annual accounts and earmarking
  • Dissolution
  • Transform into another business
  • Amendment or adoption of a approval clause or exclusion
  • Examination of agreements concluded between the business and one of its directors or certain members
  • Any adoption, amendment or deletion of a statutory clause providing temporarily that shares may not be disposed of
  • Any adoption, amendment or deletion of a statutory clause imposing rules in the event of a change of control of the business

Such decisions may be taken in ordinary meetings or in extraordinary meetings.

The type of meeting depends on the nature of the decision. Once a decision affects the statutes of the business, it is taken at an extraordinary meeting. The other decisions are taken in the ordinary assembly.

Warning  

If the manager does not consult the partners to make one of these decisions, he or she is liable to a fine of €7,500 and to 6 months in prison. The decision may be annulled at the request of any interested person (e.g. a partner).

When the business is backup plan or a judicial redress, it shall convene a general meeting to submit for the approval of the members one of the following amendments:

FYI  

The statutes may provide that such decisions shall be taken remotely by means of a written consultation of the members.

Who can call the meeting?

Meetings shall be convened by the president.

If they do not call the partners, they may be one of the following:

  • External auditor, if there is one
  • Agent of Justice appointed by the partners

Where the business has no President or the President is guardianship. Any partner may convene the meeting to dismiss or appoint the President of the business.

How are the meetings called?

The statutes lay down the time limits and the methods of convening meetings of members. Members may be summoned by post or by electronic means.

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Summons by post

Summonses must be sent by registered letter at least 15 days before the meeting unless the statutes provide for a longer period.

The meeting agenda must be indicated in the notice of meeting.

A number of documents must also be sent to the partners, which may vary depending on the type of meeting called.

Ordinary General Assembly (AGO) or Extraordinary General Assembly (AGE)

Within 15 days before the date of the meeting, the following documents must be sent to the partners:

  • Text of proposed resolutions (decisions to be taken)
  • Chairman's report
  • Where there is one, the auditor's report

FYI  

These documents must also be made available at the seat of the business.

Annual General Meeting (AGOA)

Within 15 days before the date of the meeting, the following documents must be sent to the partners:

  • Text of proposed resolutions (decisions to be taken)
  • Chairman's Management Report
  • Annual accounts
  • When the business belongs to a business group:
    • Consolidated accounts
    • Group Management Report
  • Where there is one, the auditor's report

FYI  

The inventory of the business must be made available to the partners at the business’s headquarters. They cannot make a copy of the document.

Electronic summons

Members can be called to a meeting electronically. They must be asked to do so and they must give their consent agreement for at least 20 days before the date of the meeting fixed.

The agreement of the partners shall apply to all future meetings.

When they have given their consent, the partners are summoned by e-mail to the address they have given.

Summonses must be sent at least 15 days before the meeting unless the statutes provide for a longer period. The agenda of the meeting must be indicated.

Ordinary General Assembly (AGO) or Extraordinary General Assembly (AGE)

Within 15 days before the date of the meeting, the following documents must be sent to the partners:

  • Text of proposed resolutions (decisions to be taken)
  • Chairman's report
  • Where there is one, the auditor's report

These documents shall also be made available at the seat of the business.

Annual General Meeting (AGOA)

Within 15 days before the date of the meeting, the following documents must be sent to the partners:

  • Text of proposed resolutions (subjects on which decisions are to be taken)
  • Chairman's Management Report
  • Annual accounts
  • When the business belongs to a business group:
    • Consolidated accounts
    • Group Management Report
  • Where there is one, the auditor's report

The inventory of the business must be made available to the partners at the business’s headquarters. They cannot make a copy of the document

What are the majority rules for adopting decisions?

The statutes lay down the procedures for taking decisions:

  • Quorum
  • Majority
  • Representation of partners (example: cases in which a partner can be represented by another partner)

Warning  

The statutes of an SAS are very important because they define the rules of operation of the business.

Some decisions are to be madeAlways taken to theunanimity :

  • Amendment or adoption of a approval clause or exclusion
  • Examination of agreements concluded between the business and one of its directors or certain members
  • Any adoption, amendment or deletion of a statutory clause providing temporarily that shares may not be disposed of
  • Any adoption, amendment or deletion of a statutory clause imposing rules in the event of a change of control of the business

In the event of silence of the statutes, the following decisions must also be taken unanimously:

Should minutes be drawn up after each meeting?

After each of the associates' meetings, a report containing a certain amount of information must be drawn up in order to establish a record of the decisions taken.

In particular, it must contain the following information:

  • Date and place of meeting
  • Name, first name and role of the President
  • Names and forenames of members present or represented, indicating the number of shares held by each
  • Documents and reports submitted to the Assembly
  • Summary of the discussions
  • Texts of resolutions put to the vote (subjects on which decisions are to be taken)
  • Result of votes

These decisions should be listed in the register of minutes of the business.

FYI  

The minutes may also be kept and signed in electronic form if the statutes so permit.

The members may decide in the articles of association to take collective decisions (all or part) by means of a written consultation.

What are the steps prior to the decision of the partners?

Before a decision by written consultation is taken, a number of documents must be sent to each of the partners.

These documents (management report, texts of draft decisions, etc.) must be sent by registered letter.

The members must give their vote in writing within a period laid down in the articles of association. He usually runs from the receipt of documents. The statutes also provide for a period after which, in the absence of a reply, votes are no longer received and considered as abstentions.

How are decisions taken in a written consultation?

A decision shall be adopted if the members who took part in the vote account for more than half of the shares.

Example :

A business has 20 shares divided between 5 partners. In order for a decision to be adopted, the members who took part in the vote must represent 10 shares of the business.

Do we need to draw up a report?

One report must be established after a written consultation.

It contains the next items :

  • Date of decisions
  • Names and forenames of the members whose replies were received within the time limit and the number of votes held by each
  • Documents and reports submitted to partners
  • Date on which the documents were sent and the deadline for reply
  • Texts of resolutions to be adopted
  • Result of written consultation for each proposed resolution (each reply must be annexed to the minutes)

The minutes must be signed by the officer(s).

Each report must then be added to the CW register business.

The members may provide in the articles of association that certain decisions shall be taken in a unanimous act signed by all the members. This practice is generally used in cases where there are a small number of partners.

Such decision-making is rapid and does not require a meeting to be convened (as is the case for a meeting) or a response period (as for a written consultation).

SASU

It's the single partner who takes all decisions for which a meeting is mandatory in SAS (e.g. increase in share capital). It may not delegate the making of such decisions to a third party.

When the member takes a decision which modifies the statutes or the composition of the social bodies of his business, he must give his public decision. Indeed, it must be published on a legal listing support and the significant change must be entered in the Commercial and business Register and the National company Register.

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Each year, it must also draw up an inventory of annual accounts and where required a management report. The single partner must then approve the accounts.

Decisions should be listed in the register of decisions of the single partner.

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