The summary proceedings judge (juge des référés) cannot dismiss the manager (gérant) of a non-trading company (société civile). The third civil chamber holds that court-ordered dismissal for legitimate cause falls within the main proceedings, and therefore within the powers of the lower court judge alone. The summary proceedings judge does, however, retain the power to appoint a provisional administrator (administrateur provisoire), provided that circumstances make the normal functioning of the company impossible and threaten it with imminent peril.
Key points
- Court-ordered dismissal of the manager of a non-trading company for legitimate cause can be obtained only from the lower court judge, and never from the summary proceedings judge.
- The summary proceedings judge may appoint a provisional administrator where two conditions are met: circumstances make the normal functioning of the company impossible, and the company is threatened with imminent peril.
- An application for dismissal brought in summary proceedings comes up against the judge's lack of power: it gives rise to a decision holding that there is no basis for summary proceedings.
- Assessment of imminent peril falls within the unfettered discretion of the lower court judges, who may set aside complaints found to be unproven or insufficient.
- A non-trading company has no standing, according to the court of appeal, to seek the dismissal of its own manager: that action belongs to the shareholders.
What the judges hold on dismissing the manager in summary proceedings
The third civil chamber (Civ. 3e, 7 May 2026, No. 24-12.164) partly quashes the decision under appeal: the summary proceedings judge exceeds their powers when examining the merits of an application for court-ordered dismissal of the manager of a non-trading company.
Two shareholders held equal shares in the capital of a non-trading property company (société civile immobilière) incorporated in 2000, one of the two acting as manager. The non-managing shareholder, complaining of misappropriation and of failure to comply with the rules applicable to non-trading companies, applied to the summary proceedings judge. They sought court-ordered dismissal of the manager, the appointment of a provisional administrator and that of a mandataire ad hoc (agent appointed for a specific purpose). The non-trading company was acting alongside them.
The decision under appeal (CA Aix en Provence, 21 December 2023, No. 23/02344) had dismissed those applications, while holding that dismissal of a company manager is possible in summary proceedings. The Cour de cassation (France's highest civil court) upholds the refusal of the application for a provisional administrator, the court of appeal having held, in the exercise of its unfettered discretion, that the evidence produced did not establish any imminent peril threatening the company's interests. But it raises of its own motion the excess of powers concerning the dismissal (free translation).
It follows from these provisions that court-ordered dismissal for legitimate cause of the manager of a non-trading company, which falls within the main proceedings of which only the lower court judge may take cognisance, does not fall within the powers of the summary proceedings judge, who may, by contrast, where circumstances make the normal functioning of the company impossible and threaten it with imminent peril, appoint a provisional administrator.
The Court rules on the substance without remittal, in the interests of the proper administration of justice, and holds that there is no basis for summary proceedings on the application for dismissal.
Which route to choose to remove the manager of a non-trading company?
A shareholder seeking to have the manager of a non-trading company removed by a court must apply to the lower court judge: summary proceedings do not offer that possibility, however serious the alleged facts.
The distinction turns on the nature of the measure sought. Dismissal definitively brings the corporate office to an end: it determines the substance of the dispute. Summary proceedings, a provisional procedure, cannot order a definitive measure. A shareholder piling up complaints – accounts not approved, general meetings not held, opaque financial flows – will not thereby open the door of summary proceedings to a dismissal.
The summary proceedings judge has another tool: the provisional administrator. That measure allows to suspend the manager's exercise of powers without revoking its office. It requires two cumulative conditions, as the decision states them: circumstances making the normal functioning of the company impossible, and imminent peril threatening it. Long-standing disagreement, even documented, is not enough if the company continues to operate.
The practical scope of this delimitation of the judge's powers
The decision under discussion clarifies the allocation of powers and rejects the reasoning of the court of appeal, which had held that dismissal of a company manager is possible in summary proceedings.
The court of appeal had laid down the opposite principle: dismissal of a manager would be possible in summary proceedings, subject to two cumulative conditions relating to the seriousness of the corporate crisis and to urgency. The Cour de cassation does not discuss those conditions; it rejects the principle itself. The summary proceedings judge has no power to rule on dismissal, irrespective of whether the complaints are serious.
The sanction is not a dismissal on the merits but a lack of power: the Court holds that there is no basis for summary proceedings. A claimant whose application is dismissed in summary proceedings for want of imminent peril therefore retains intact their claim for dismissal on the substance. The Court rules neither on the existence of legitimate cause nor on the reality of the alleged misappropriation.
A second point deserves attention, decided by the court of appeal and not challenged: the non-trading company itself was declared inadmissible in its action. According to the court of appeal, the scope of the derivative action (action ut singuli) is limited to civil liability; dismissal of the manager is an action belonging to the shareholders themselves.
How to structure a claim against the manager of a deadlocked non-trading company
A conflict between shareholders of a non-trading company requires the procedural route to be chosen according to the measure actually sought, failing which time and costs are lost.
The application for dismissal must be brought before the lower court judge. The application for a provisional administrator may be brought in summary proceedings, but it calls for a demanding demonstration: the impossibility of the normal functioning of the company and imminent peril, cumulatively. The judge assesses these factors with unfettered discretion, as the decision under discussion recalls.
Evidence is the weak point in files of this kind. General ledgers recording movements normally, the absence of any criminal complaint, invoices not produced: all of these led the lower court judges here to set aside imminent peril. An allegation of misappropriation unsupported by verifiable documents rebounds on the party making it.
Standing (qualité pour agir) must be checked before the writ of summons (assignation). The shareholder acts in their own name to seek the dismissal of the manager. Having the company act, represented by a shareholder under the derivative action, exposes the claim to inadmissibility.
The checks to carry out before suing the manager of a non-trading company
- Identify the measure sought: a definitive dismissal falls to the lower court judge, whereas a provisional administration measure may fall within summary proceedings.
- Check who is acting: dismissal of the manager is an action of the shareholders, not of the company.
- Gather the documents establishing that the normal functioning of the company is impossible, and not merely impaired.
- Document the imminent peril as at the date on which the judge will rule: past facts with no present consequence are not enough.
- Consult the articles of association, which may provide for dismissal by unanimous decision of the other shareholders, a route sometimes quicker than litigation.
Frequently Asked Questions
Can the manager of a non-trading company be dismissed urgently in summary proceedings?
No. In its decision of 7 May 2026, the third civil chamber holds that court-ordered dismissal of the manager of a non-trading company for legitimate cause falls within the main proceedings, of which only the lower court judge may take cognisance. A summary proceedings judge ruling on such an application exceeds their powers. The application brought in summary proceedings leads to a decision holding that there is no basis for summary proceedings, without any examination of the complaints raised against the manager.
What conditions must be met to obtain a provisional administrator in summary proceedings?
Two conditions must be met cumulatively, according to the decision under discussion: circumstances making the normal functioning of the company impossible, and imminent peril threatening the company. The lower court judges assess these factors with unfettered discretion. In the case decided, general meetings that had not been held and accounts that had not been approved were not enough, since the accounting records registered rent receipts and cash movements normally.
Can a non-trading company itself seek the dismissal of its manager?
No, according to the court of appeal whose decision was partly quashed. The scope of the derivative action brought by a shareholder in the company's name is limited to civil liability. The company has no standing to seek the dismissal of its manager, that action belonging to the shareholders themselves. In the case decided, the action brought by the non-trading company, represented by one of its shareholders, was declared inadmissible, and that inadmissibility was not challenged.
What can be done when two 50/50 shareholders deadlock a company?
Court appointment of a provisional administrator is the classic tool, but it remains an exceptional measure: the deadlock must prevent the normal functioning of the company and expose it to an imminent risk. Mere disagreement, even long-standing and documented by several sets of proceedings, is in principle not enough. The articles of association deserve to be read first: they sometimes provide exit or casting-vote mechanisms preferable to litigation.
Does a refusal of urgent relief prevent a later claim on the substance?
No, in principle. A decision given in summary proceedings is provisional in nature: it does not determine the substance of the dispute and does not prevent a later application to the court with power to rule on the main claim. Likewise, where the summary proceedings judge finds that they have no power to rule on an application, they do not decide its merits. The claimant then retains the option of bringing the application before the lower court judge.