Failure to give notice of a meeting to a shareholder of an SAS (French simplified joint-stock company) does not automatically render the resulting decisions void. That nullity, provided for by Article L. 227-9, paragraph 4, of the French Commercial Code in the version applicable to the dispute, is absolute. It nevertheless requires that the irregularity was capable of influencing the outcome of the decision-making process. The court verifies this decision by decision.
Disclaimer: This article relates to a decision rendered under the law in effect prior to the entry into force of Order No. 2025-229 of March 12, 2025, reforming the rules on nullity in corporate law.
Key takeaways
- The nullity attached to a failure to give notice to a shareholder of an SAS is an absolute nullity, but annulment is never a foregone conclusion.
- A corporate decision may be annulled only if the failure to give notice was capable of influencing the outcome of the decision-making process.
- That influence is assessed decision by decision: in a company with two shareholders in open conflict, the absence of the minority shareholder may have had no bearing on the outcome of the votes.
- Where the excluded shareholder subsequently voted in the same way as the other shareholder, or asked for a decision to be regularised, any influence is ruled out.
- The disappearance of the cause of nullity extinguishes the action only if it occurs before the court rules on the merits at first instance.
An SAS with two shareholders and ten years of contested decisions
Failure to give notice to a shareholder of an SAS justifies annulling a decision only if the irregularity was capable of influencing the outcome of the vote. The commercial chamber so holds (Com., 11 February 2026, No. 24-18.524). A memorandum of agreement of 2004 organised the entry of a company into the share capital of a société par actions simplifiée, by way of a capital increase followed by a share transfer. A final decision of 2012 annulled the resolutions approving the contribution in kind and held the contribution agreement to have lapsed. The company that had entered the share capital, claiming to have been deprived of its shareholder rights, sought the annulment of all general meetings held since April 2012.
The decision under appeal (CA Angers, 4 June 2024, No. 23/01096), given on remittal after quashing (Com., 15 March 2023, No. 21-18.324), annulled a series of ordinary and extraordinary decisions taken between 2013 and 2021. The Cour de cassation (France's highest civil court) partially quashes that decision: the lower courts could not annul those decisions without examining, decision by decision, whether the absence of the minority shareholder could have changed their outcome. Ruling on the merits without remittal, the Court dismisses all the applications for annulment.
The company first challenged the classification of the nullity, arguing that it was merely relative. The decision rejects that reading: the applicable provision creates an absolute nullity, covering both breaches of the statute and breaches of the articles of association adopted for its application (free translation).
The nullity provided for in Article L. 227-9, paragraph 4, of the French Commercial Code, in the version preceding its repeal by Ordinance No. 2025-229 of 12 March 2025, applicable to the dispute, which covers both breaches of the provisions of paragraph 2 of that article and breaches of the provisions of the articles of association adopted pursuant to paragraph 1, is an absolute nullity.
What must a shareholder who received no notice prove?
The excluded shareholder must establish that their absence was capable of influencing the outcome of the decision-making process. That requirement determines the fate of the application for annulment. It is assessed for each decision adopted, and not globally for the meeting as a whole. The decision states the rule as follows:
It follows from that provision that the nullity it lays down may be ordered only if the irregularity arising from the failure to give notice of the general meeting to a shareholder was capable of influencing the outcome of the decision-making process.
In a company with only two shareholders in open conflict, that influence is far from established. The Court takes into account the context of deep disagreements, which had already brought the parties before several courts, as well as the balance of power between the two shareholders. For the approvals of accounts, the allocations of profit, the related-party agreements, the appointment of statutory auditors and a cash pooling agreement, the absence of the minority shareholder could not have changed the outcome of the votes.
The shareholder's subsequent conduct also counts. At a meeting held in January 2022, the minority shareholder had voted in the same way as the majority shareholder on two capital increases reserved for employees. It had also asked for the decision extending the company's term to be regularised. Its absence from the original meetings therefore could not have influenced the outcome of those decisions.
The regularisation carried out at that 2022 meeting was not, however, enough to defeat the annulment. The provision applicable to the dispute sets a precise point in time for assessing the disappearance of the cause of nullity, and that point had passed.
- Rule: the action for nullity is extinguished where the cause of nullity has ceased to exist on the day the court rules on the merits at first instance.
- Consequence: a regularisation carried out only on appeal does not prevent nullity from being ordered.
Absolute nullity and conditional annulment: what changes
The nullity remains absolute, but annulment is never automatic. The classification of the nullity and the review of its influence on the vote are two separate questions. The decision confirms the first and tightens the second: the court cannot simply note that no exchange of views took place between the shareholders. It must examine specifically, for each decision, the possible effect of the absence of the shareholder who was not given notice.
The ruling was given on the basis of Article L. 227-9, paragraph 4, of the French Commercial Code, in the version preceding its repeal by Ordinance No. 2025-229 of 12 March 2025. The same applies to Article L. 235-3 of the same code, concerning the extinction of the action for nullity. The decision says nothing about the state of the legislation after that repeal.
The quashing is partial and without remittal. Considering that the proper administration of justice so required, the Cour de cassation ruled on the merits and dismissed all the applications for annulment. Litigation concerning general meetings held between 2013 and 2021 thus comes to an end without any fresh examination by a court of appeal.
What to do when a shareholder has not been given notice?
An omitted notice of meeting is dealt with more effectively before the first-instance judgment than after it. On the company's side, the first precaution remains literal compliance with the procedures for giving notice set out in the articles of association, together with the retention of proof of dispatch. Where an omission is discovered, regularisation retains its value: it may extinguish the action if it occurs before the court rules on the merits at first instance, and it then sheds light on the absence of any influence of the irregularity.
On the side of the excluded shareholder, a global argument is no longer enough. Each decision must be discussed on its own terms: its subject matter, what is at stake, the majority required, and the outcome the vote might have taken had the absent shareholder been present. A later vote consistent with that of the other shareholder, or a request for regularisation, substantially weakens the application for annulment concerning the same decision.
Checks to carry out before seeking annulment
Go back over the list of contested decisions and sort them by subject matter: day-to-day management, accounts, capital transactions, the company's term. For each of them, identify what the presence of the shareholder who was not given notice could have changed, having regard to the distribution of the share capital and the applicable majorities. Check whether a regularisation has already taken place, and on what date compared with the first-instance judgment. Finally, examine the votes cast since then: a converging vote or a request for regularisation neutralises the argument based on the failure to give notice.
Frequently Asked Questions
Can a minority shareholder have the approval of the accounts annulled if no notice of the meeting was given?
Annulment is not automatic. Pursuant to the decision of 11 February 2026, the court must check, for each decision, whether the failure to give notice could have influenced the outcome of the vote. In an SAS with two shareholders in open conflict, the Cour de cassation refused to annul approvals of accounts, allocations of profit and related-party agreements, since the minority shareholder's absence could not have changed the outcome.
Does regularising a meeting during the appeal prevent annulment?
No, under the provisions applied in the case decided on 11 February 2026. The action for nullity is extinguished where the cause of nullity has ceased to exist on the day the court rules on the merits at first instance. A regularisation carried out only before the court of appeal comes too late to block annulment. It still has value: the regularising vote may show that the irregularity had no influence on the decision.
Does absolute nullity mean that the decision is annulled automatically?
No. Classifying the nullity as absolute concerns the regime of the nullity, not whether it operates automatically. In the decision of 11 February 2026, the commercial chamber confirms the absolute character of the nullity attached to a failure to give notice in an SAS, on the basis of the provision applicable to the dispute. It nevertheless requires that the irregularity was capable of influencing the outcome of the decision-making process.
How can a shareholder prove that no notice of the meeting was given?
Proof is built from the company's records: notices of meeting, acknowledgements of receipt, emails, attendance sheets and minutes. The company usually holds these traces, since it organises the sending of notices. A shareholder disputing that notice was given should seek disclosure of those documents, keep their own written complaints and examine what the minutes say about the composition of the meeting.
What precautions apply when convening the shareholders of an SAS?
Comply with the form and time limits set by the articles of association. Keeping proof of dispatch for each shareholder, maintaining up-to-date addresses and carefully drawing up the attendance sheet limit later challenges. Where shareholders are in conflict, this formal rigour becomes strategic: one omission may undermine decisions taken several years earlier.