Associated files

Obligation to file annual accounts

Filing annual accounts and their associated documents with the registry office of the Commercial court is compulsory for several categories of companies.

Read more

Last published

The minutes of general meetings for approval of the annual accounts of commercial companies

Once a year, the annual accounts for the last financial year, i.e., the balance sheet, the profit and loss statement and the notes, must be approved of the Annual General Meeting. More specifically, in most commercial companies (SA, SAS, SNC, SCS, SA, SARL etc. ), the members of the executive bodies are liable to heavy criminal and civil sanctions for management error, if they breach the obligation to submit annual accounts for approval by the partners or shareholders. For this reason, the members of these executive bodies must demonstrate that they have indeed submitted the company's annual accounts for the preceding financial year for approval by the partners or shareholders, who generally meet in Annual General Meeting, by drawing up minutes of the general meeting. The approval of the annual accounts is therefore strictly regulated. By approving these annual accounts, these partners or shareholders implicitly demonstrate that the documents concerned contain data that has been prepared on a true and sincere basis. They also presume that, as of the closing date of each financial year, these annual accounts reflect a faithful picture of the assets, the financial position and the book profit (or loss) for the companies' business. More generally, the approval of the annual accounts represent the indispensable tool to provide a minimum of information on the main accounting parameters, financial management and operations of commercial companies. They are therefore an essential decision making tool aiding the diverse interests of any interested person (directors; shareholders; investors; government authorities; creditors, such as bankers, suppliers; customers; competitors; commercial courts and potentially other judicial authorities, responsible for preventing and dealing with companies in difficulty) near or far, through access to the company's business data as well as by their financial, accounting and management position. For all these reasons, it is vital that the annual accounts must be approved in strict compliance with the statutory requirements.

Read more

File : Drawing up minutes for a General Meeting

Part 1

Why should you draw up a minutes of general meeting?

Drawing up minutes

The general meeting is the only context in which the partners or shareholders may exercise their full powers of control over the executive body's management of the business and on the functioning of the company. Recording the decisions of the general meeting is therefore crucial.

Overview

Any decision taken by the General Meeting of a company, or a deliberation of the General Meeting, must be recorded in the minutes. This document therefore corresponds to the specific method of expression for the decisions of the partners or shareholders and provides proof.

- Indeed, the general meeting is the only method for consulting partners or shareholders that is truly common to almost all the different types of companies. In addition, the scope of responsibilities of the general meeting is more extensive than that of other decision-making procedures of partners or shareholders. The minutes of general meeting, seen from a material and technical point of view, i.e., in a hard copy, remains the only solution legally acceptable to document the decisions taken in the General Meeting. It is therefore very useful, or even essential, to know how to prepare these minutes.

- The minutes of the general meeting are designed to document as faithfully as possible the resolutions adopted by the general meeting. The probative value of the minutes of general meetings is legally secured by official procedures that, while contrasted, are sufficiently comprehensive, structured and rigorous. Some rules are common to the various legal forms of companies, others are specific to some of them; in all cases they govern the minutes in detail, including their legal form, their content, the persons authorised to draw them up, their signatories, procedures for corrections, archiving and communication and sanctions for breaching these rules.

 

The minutes of general meetings, the sole method for expressing the decisions of partners or shareholders

Regardless of whether it is an ordinary or extraordinary General Meeting, the minutes are the method to give feedback on the decisions of those who own capital (partners or shareholders) in companies. In fact:

- On the one hand, the General Meeting represents the classic way of consulting partners or shareholders for most of the companies, regardless of the legal form:capitalised companies or joint stock companies (mainly formed by capital contributions or when the capital is divided into shares), such as, e,g, the SA (for which, in any event, the General Meeting is mandatory); partnerships (mainly formed by partners), such as, for example, the SNC; the companies that have a mixed character (formed by considering both capital contributions and the legal personality of the partners), such as, for example, the SARL.

  • Indeed, the general meeting is the only method for consulting partners or shareholders that is truly common to almost all the different types of companies. Conversely, some procedures for consulting shareholders are restricted to certain legal forms. Therefore notably: with the SNC and the SARL, it is possible to consult partners in writing without convening a general meeting, whereas this is not possible for the SA ; in the SARL, decisions taken by the partners may very well not only as a result in an authentic instrument (acts drawn up by a state official, such as a notary public) or private instrument (instrument drawn up by the parties themselves, therefore without calling on the services of a state official, such as a notary public), mainly, whenever, their unanimous agreement (i.e., the agreement of all the partners) is verified by an instrument signed by each of them.
  • The general meeting of any type of company generally has greater powers than other decision-making procedures. In the context of a general meeting, the partners or shareholders may be consulted and take decisions on almost any issues mainly affecting the life of companies and the rights and obligations of their members, for example: appointing managers of an SARL, appointing auditors, members of the board of directors or supervisory board of an SA; authorising managers, particularly of the SARL, to enter into certain transactions contingent on the prior approval of the partners by their articles of association; approving the annual accounts for the preceding financial year; modifying the articles of association following decisions of the general meeting aimed the changing the name, business purpose, registered office or the share capital (by an increase or a reduction); transforming the legal form of the company ; the merger or demerger of the company; a partial asset contribution; the opportunity to wind up the company due to a shortfall in equity; the early dissolution and liquidation of the company; the approval of new partners, especially for a SARL.


- Furthermore, the minutes of general meeting, as understood from a material and technical point of view, i.e., in a hard copy, remains the only solution legally acceptable to document the decisions taken by the General Meeting. To-date, the law does not allow any other material way of recording the deliberations of the partners or shareholders, including, for example, audio and/or video recording of the debates and resolutions in the general meeting, or the scanning the minutes, by adding the secure electronic signatures of persons normally empowered to sign the hard copies of the minutes.

Good to know: in the single person companies, i.e. containing only one partner (for example, the EURL) or one shareholder (for example, the SASU), no general meeting may be held, since, by definition, the general meeting requires several partners or shareholders to meet together. Therefore, the sole partner or the sole shareholder takes his or her own decisions. It is nevertheless still mandatory to record the decisions of the sole partner or sole shareholder in minutes. The rules for preparing these minutes, while certainly similar to those for preparing the minutes of general meetings, are more flexible.

 

The minutes of the general meeting, standard instrument of proof

The minutes are supposed to provide documentary proof, in a sincere and therefore faithful and objective manner, of the facts, events, situations and decisions of partners or shareholders, contained within. They are legally binding and therefore affect the management of companies and the rights and obligations of its members.

In principle, irrespective of the legal form of the companies, the minutes of meetings, are authentic until contrary evidence is provided of the content of the deliberations and decisions taken, in this way, by the partners or shareholders.

It is therefore easy to understand the role played by minutes in providing documentary proof, especially for the general meeting, through the two following examples:

- Authorisation to transfer business assets: the non-partner manager of an SARL, whose powers are limited by the provisions contained in the company's articles of association, is deprived of evidence proving his entitlement to sell business assets of the company which he manages, as soon as he fails to draw up the minutes of the general meeting that specifically authorised him to sell them, or when this document has been prepared, it has not been done in proper and due form, for example for failing to mention the partner's present and those who were simply represented by a proxy;

- Appointment of an auditor: in a SA, a new auditor, appointed to replace the previous incumbent is deprived of the evidence of this appointment as long as the minutes of the ordinary general meeting that appointed it have not been prepared or, if they have been, the minutes have not been drawn up in proper and due form, for example due to the absence of signatures and initials of the legally empowered signatories.

Nevertheless the probative value of the minutes is all relative, since they are only authentic with respect to their signatories. With respect to other persons, partners or third parties, they only form a simple presumption of the veracity of the information (facts, events, words, situations, decisions carrying legal force) that the signatories have provided, i.e., until evidence to the contrary is provided. Any interested party may therefore bring this presumed reality into question, by providing any form of proof.

Carry out your formalities on-line