Appointment of a mergers auditor
The Procedures guide allows entrepreneurs and decision-makers to have a reliable, precise and up to date overview of legal procedures and measures concerning commercial formalities to be undertaken. It is broken down into 6 sections in which you can find information and documentation required for formalities with Registry Offices at the Commercial Courts.
Appointment of a mergers auditor
Merger transactions can be undertaken between companies of different forms.
To preserve the equality of the present and future partners, as well as to assure the legal security of the transaction, it is subject to assessment by an independent, external expert, the merger auditor.
The role of the merger auditor
This is an accounting professional chosen from among the list of auditors or judicial experts of the court of appeal.
The merger auditor's mission is to assess, under his responsibility, the merger transaction by verifying the evaluation criteria set forth by the companies and therefore if the exchange ratio is fair. The auditor then files an evaluation report on the terms and conditions of the merger which is filed in the Trade and Companies Register.
Texts: Art. L. 236-1, L. 236-10, L. 236-23, L. 227-1, L. 225-224 of the Commercial Code; Article 257, 258 of Decree No. 67-236 of 23 March 1967.
The appointment of a merger auditor by order of the presiding judge of the commercial court is provided for:
- PUBLIC LIMITED COMPANIES (Art. L. 236-10 of the Commercial Code),
- LIMITED LIABILITY COMPANIES (Art. L. 236-23 of the Commercial Code),
- JOINT-STOCK PARTNERSHIPS (Art. L. 226-1 of the Commercial Code),
- SIMPLIFIED JOINT-STOCK COMPANIES (Art. L. 227-1 of the Commercial Code).
How to file an application?
The appointment of the merger auditor is made at the request of each of the companies participating in the transaction or upon joint application of all the companies presented to the presiding judge of the court who rules by order.
He respectively appoints the merger auditors or a single merger auditor.
The fees of the auditor are to be paid by the claimants.
The application must be filed in two original copies dated and signed by the claimants.
Suggestion of the name of an auditor
The claimant suggest to the presiding judge of the commercial court, subject to his assessment, the name of a merger auditor.
In this case, it is mandatory to specify that the auditor whose appointment is suggested is not subject to any incompatibility. The auditors of one of the participating companies in the merger operation cannot be appointed as the merger auditors.
If the suggested auditor has been previously designated for a similar operation in one of the companies of the group, it is necessary to provide a copy of the ordinance.
When the acquiring company holds, since the filing of the merger project at the registry office and until the completion of the merger operation, the entire capital of the companies being acquired, this operation does not result in an increase of capital, the extraordinary general assembly of the acquiring company decides based on the contributions auditor's report.
Legal texts: articles L. 236-11 of the Commercial Code.
To support your application, it is necessary to enclose in support of the application the following information
The rates presented below do not include postage fees; cheques should be made payable to the order of the relevant GREFFE DU TRIBUNAL DE COMMERCE, and enclosed with the application.
Orders on application (other than interim and payment proceedings)
Price, all taxes included
Order on application (with 1 notif. to the complaint)
Notice, communication or additional notification of the order
Ordinance on application with filing in the annex in the Trade and Companies Register (RCS) (without notification)
Filing of additional legal instruments by annex in the Trade and Companies Register (RCS)
Order of the assigned judge - RCS Litigation (notif. (R. 123-140 of the Commercial Code) Registered letter (acknowledgement requested) + simple letter)