Other leaders may be removed for just cause

The economic news in recent months delivered us a few examples of leaders thanked their shareholders or the Board of Directors, sometimes with violence.

Certain social agents are revocable ad nutum", i.e."on a simple sign of head ". No ground is necessary for their removal, which can intervene at any time. This is the case of Directors and the President of the Council of public limited companies Board of Directors and the President of the Executive Board and the members of the Supervisory Board in those with these bodies.

Other leaders may be removed for "just cause". It Director-General (unless he is also Chairman of the Board of Directors) and the Director-General delegate of the anonymous companies (SA) Board of Directors, members of the Executive Board or the single Director-General of the SA, Executive Board and Council of the Manager of the limited liability companies.

In certain forms of companies, the conditions for revocation of the leaders are freely set by the Statute. This is the case of the President of the société par actions.

Make submissions

But whatever the company, the revocation should not intervene in bearing circumstances damage to reputation or honour of revoked agent and must respect the principle of contradiction: that the revocation is contemplated must have been in a position to submit its observations prior to the decision to. Otherwise, its removal would be unreasonable and could give rise to damages.

Many decisions have shaped the contours of this principle of contradiction. The Court of cassation control the assessment of the abusive nature of a revocation by the judges of the merits and does not hesitate to censor decisions which it considers insufficient motivation (1).

This principle of contradiction must be respected even if gross negligence is alleged against the leader (2). Regardless of that the representative concerned whether or not partner or shareholder of the company or member of the social body empowered to revoke. The agent must be informed of the removal project to to allow him to present his defence (3). The information can be explicit, but it can also result from the mere convening of the agent at a meeting of the Board of Directors which he is a member. The information may still be more implied: it will do so when the agenda of the Board of Directors said the appointment of a new President who has indicated in advance that it does not wish to be assisted by a Director General (4).

A breach was opened by the Court of appeal of Versailles: respect for the principle of contradiction is would be not required in societies by simplified shares as social agent has virtually no "the possibility by his observations of potential interfere" (5).

Principle of contradiction

Two recent cases came to define the contours of the principle of contradiction. The Court of appeal of Paris (6) made an interesting case for two reasons. First, it fills the gap opened by the Court of Versailles by reaffirming the principle of contradiction applies even in a SAS whose statutes stipulate that the President is revocable ad nutum. " Then, he said that, whatever the competent authority to revoke a proxy, it is the company which is legally responsible for this decision and the social body in question. In this case, the Court of Paris dismissed the claim for damages against the unique partner of the SAS who had taken the decision to revoke the President of the society, in accordance with the powers were conferred by the statutes.

For its part, the Cour de cassation (7) brought original precision in the removal of the Manager of a company exercise liberal limited liability and its exclusion as an associate: If the principle of contradiction must be respected, it does not allow the social agent threatened revocation to assist counsel in the meeting of the social body called to decide.

Respect for the principle of the adversarial is imperative for revocation of a social agent, whatever it may be and whatever the form of the company. But we must recognize that it is a condition of pure form whose respect rarely allow the agent to reverse the situation.