A foreign shareholder can discover a serious corporate problem from a seemingly ordinary set of French minutes: the statutory auditor was appointed by an extraordinary general meeting, a second candidate was added during the meeting, or the shareholders approved accounts without a properly appointed auditor. The immediate question is often phrased simply: can the resolution be cancelled because the wrong shareholders’ meeting voted?
The answer depends on the resolution, the legal form, the wording of the notice, the auditor’s status and the precise statutory basis of the challenge. In France, a statutory auditor is a commissaire aux comptes, commonly abbreviated “CAC”. An ordinary general meeting is an assemblée générale ordinaire (AGO); an extraordinary general meeting is an assemblée générale extraordinaire (AGE). Those labels matter because the current Code de commerce normally assigns the designation to the ordinary meeting, while the statutory nullity rule does not operate in the same way for every corporate decision.
This article focuses on the procedural dispute, not on repeating the general threshold guide. The current 5/10/50 and group rules remain relevant to proving that an appointment was required; they are summarised in our guide to French statutory auditor thresholds for foreign founders. The focus here is what a foreign founder, parent company or minority shareholder should do when the vote, agenda or meeting was wrong, and how the company can regularise the situation without destroying its evidence trail.
I. When is a French statutory auditor vote procedurally defective?
A. Why do the ordinary meeting and the agenda matter for a foreign-owned company?
The starting point is Article L. 821-40 of the Code de commerce. For certification of the accounts, it says that, outside a statutory appointment, the CAC is designated by the ordinary general meeting in a legal person that has such a body, or by the competent equivalent organ in another entity. The provision can be read in its official wording, including the phrase “les commissaires aux comptes sont désignés selon les modalités prévues au présent article”, in the current version of Article L. 821-40.
That rule creates a practical distinction between the corporate body that approves annual accounts and the body that changes the articles or decides an extraordinary transaction. A company’s articles may contain special provisions, and some legal forms have their own decision-making rules. The French company should therefore identify the competent organ from the current Code and its articles, rather than assume that any meeting of shareholders can appoint a CAC. A label such as “shareholders’ meeting” in an English translation is not enough.
For a foreign-owned SAS, the corporate documents often provide considerable flexibility for collective decisions. SAS means société par actions simplifiée, a simplified joint-stock company. That flexibility does not allow the company to disregard a mandatory statutory appointment process. For a SARL, a private limited company, the agenda and notice rules are especially important because an associate may need to prepare a vote, compare candidates and arrange a proxy from abroad. The same is true for an EURL, the one-member form of a SARL, where the sole member’s written decision must still be consistent with the applicable statutory mechanism.
The agenda is not a decorative heading. Article R. 223-20 of the Code de commerce requires the questions on the agenda to be drafted so that their content and scope appear clearly, subject to questions of only minor importance. The official rule also requires the SARL associates to be convened in accordance with the stated notice procedure and can be checked in Article R. 223-20. A notice that says only “various matters” or “appointment of officers” may not fairly warn associates that they will vote on a particular CAC and a particular substitute.
The leading decision on that point is Cass. com., 14 February 2018, no. 15-16.525. The Court of Cassation held that the question of appointing a CAC and a substitute in a SARL “doit être inscrite à l’ordre du jour conformément aux articles L. 223-27 et R. 223-20 du code de commerce”. It further treated a resolution proposing different auditors from those described in the circulated resolution as new and irregular, even though it pursued the same broad objective of appointing an auditor.
That reasoning answers a frequent cross-border scenario. A foreign parent proposes Auditor A in the notice. During the meeting, the parent’s representative rejects Auditor A and asks the meeting to appoint Auditor B, whose acceptance letter was not circulated. The issue is not merely whether the shareholders preferred B. The company must ask whether the B resolution was actually on the agenda, whether the notice gave associates sufficient information, and whether the meeting was entitled to vote on that new proposal. A proxy signed overseas cannot cure a missing agenda item if the underlying decision was not properly presented.
The minutes should therefore identify the meeting as ordinary or extraordinary, reproduce the relevant agenda item, identify the CAC and any substitute, record the votes and attach the acceptance documents. A resolution that says “appoint a statutory auditor” without naming the candidate may be inadequate where the identity is contested. If the meeting is asked to choose between several candidates, the notice should make that choice intelligible and should make the candidates’ information available in time.
The same discipline applies when the meeting is held remotely or when the foreign shareholder signs through a power of attorney. The file should show the date on which the notice was sent, the address used, the authority of the signatory, the version of the articles supplied to the shareholder and the documents made available before the vote. If the shareholder is an overseas company, the company should preserve evidence of the signatory’s authority and use a translation, legalisation or apostille where the filing authority or the specific document requires it. A later disagreement about the vote often turns on the documentary sequence, not on recollections of a video call.
A wrong meeting and a wrong candidate are related but different defects. If an AGE votes on a resolution that should have been decided by an AGO, the company must analyse the statutory nullity provision and the nature of the resolution. If an AGO votes on an unannounced replacement candidate, the problem is primarily the agenda and information supplied to the associates. If the auditor accepted the mandate but was not eligible or independent, the remedy may concern the auditor’s appointment or removal rather than the competence of the meeting. Those questions should not be collapsed into a single statement that “the CAC appointment is void”.
B. Does a missing or irregular auditor make every resolution void?
Article L. 821-5 of the Code de commerce is the central current nullity provision. It states that deliberations of the organ referred to in the second paragraph of Article L. 821-40 are null when taken without a regular designation of CACs or on the report of CACs appointed or retained contrary to the relevant rules. The exact opening is “Sont nulles les délibérations de l’organe mentionné au deuxième alinéa du I de l’article L. 821-40”. The article also states that the nullity action ends if the deliberations are expressly confirmed by the competent organ on the report of regularly appointed auditors. The complete current text is available in Article L. 821-5.
Three limits follow from that wording. First, the company must identify the organ covered by the cross-reference; the provision is not written as a general nullity rule for every act signed by a company. Second, the defect must concern the regular designation or the auditor’s report in the statutory setting described by the Code. Third, express confirmation can affect the action, but confirmation must be made by the competent organ and on the report of a regularly appointed auditor. An informal ratification in an email from the foreign parent is not the same thing.
The decisive recent authority is Cass. com., 11 March 2026, no. 24-16.260, published in the Bulletin. The Court held, in exact terms, that “une délibération d’assemblée générale extraordinaire ne peut être annulée sur le fondement du premier de ces textes en raison de l’absence de désignation ou de la désignation irrégulière d’un commissaire aux comptes titulaire”. It combined Articles L. 821-5 and L. 821-40 and explained that the statutory nullity concerned the relevant ordinary deliberations, not the extraordinary resolution at issue in that case.
The practical consequence is not that an AGE may always appoint a CAC or that a company may ignore a missing auditor. It is that the claimant must connect the defect to the resolution and the statutory provision that actually governs it. An AGE approving a transfer of shares, an AGE approving a change to the articles and an AGO approving annual accounts do not automatically receive the same treatment. The 2026 decision prevents an overbroad nullity claim based only on the fact that the company lacked a CAC when an extraordinary resolution was adopted. Other defects, other statutory provisions or contractual consequences may remain available.
The Court of Cassation’s earlier decision in Cass. crim., 29 November 2016, no. 15-84.635 illustrates the separate duty to cause an appointment. In the text quoted by the Court, the designation “doit intervenir au cours de l’assemblée générale ordinaire, appelée à statuer sur les comptes de l’exercice écoulé”. That case discussed historical threshold figures and an earlier statutory framework; those figures should not be reused for a 2026 calculation. Its continuing procedural lesson is that a company required to appoint cannot postpone the designation simply because a later year falls below the applicable criteria.
Before alleging that the appointment was required, a foreign parent should establish the trigger. Article D. 221-5 now states the ordinary figures at €5 million of balance-sheet total, €10 million of turnover excluding VAT and 50 average employees, with a two-out-of-three test. The current text is available at Article D. 221-5. The figures are only a starting point for a group. Article L. 821-43 applies to controlling persons or entities and controlled companies; it refers to cumulative balance sheet, turnover and employee criteria in the group analysis. Its rule can be read at Article L. 821-43.
The implementing Article D. 821-171 says that the head-of-group thresholds are those of Article D. 221-5 and that cumulative figures are determined by adding the relevant measures for the entities in the statutory group. It also addresses when the group is no longer required to appoint before the end of the mandate; the official text is at Article D. 821-171. For a controlled company, Article D. 821-172 sets the lower figures at €2.5 million of balance sheet, €5 million of turnover excluding VAT and 25 average employees, subject to the statutory conditions. Its current wording is available at Article D. 821-172.
This threshold analysis does not decide the remedy by itself. It establishes why the company should have had a CAC and why a director may have failed to perform a statutory duty. The foreign founder should prepare a stand-alone calculation, a control chart, the group calculation and the version of the accounts used for the vote. The calculation may also show that the auditor was appointed voluntarily, or under a three-year regime, rather than because the mandatory threshold was exceeded. That distinction affects the mandate and the regularisation strategy.
There is also a difference between an irregular designation and a challenge to the person of the CAC. A shareholder or associate representing at least 5% of the capital may, in the statutory conditions, request judicial recusal for a proper reason under Article L. 821-49 of the Code de commerce. A mere disagreement about an accounting treatment or audit procedure is not enough under that provision. Where there is fault or impediment, early removal is a separate judicial route under Article L. 821-50. A foreign investor should select the remedy that corresponds to the actual complaint: wrong organ, defective agenda, lack of appointment, conflict of interest or professional fault.
II. What remedy should a foreign shareholder or company use after the vote?
A. Can the resolution be challenged, confirmed or replaced?
The first task is to preserve and classify the evidence. The company or shareholder should collect the notice and proof of dispatch, agenda, articles in force on the meeting date, attendance sheet, proxies, voting results, minutes, candidate profiles, acceptance letters, auditor registration information, annual accounts, group chart and registry filings. It should save the original documents before anyone edits the minutes or uploads a replacement version to the French one-stop shop. A foreign parent should ask for the French-language version used by the company, not rely only on an English translation prepared after the dispute.
The legal question should then be separated into four possible situations. The first is an omitted appointment. The second is a vote by the wrong organ or a resolution not properly placed on the agenda. The third is a defective or ineligible auditor. The fourth is a disagreement about the auditor’s work that does not challenge the appointment at all. Each situation calls for a different procedural response and may affect a different set of corporate resolutions.
When the competent meeting simply failed to appoint a CAC, Article L. 821-47 provides a direct judicial mechanism. It says: “tout membre de l’assemblée ou de l’organe compétent peut demander en justice la désignation d’un commissaire aux comptes”, with the legal representative duly called. The court-appointed mandate ends once the shareholders or competent organ make the appointment. The full text can be checked at Article L. 821-47. This is not the same as asking a court to cancel an AGE resolution; it is a route to put the required audit function in place when the meeting has omitted it.
When an AGO adopted a covered deliberation without a regular CAC or relied on an improperly appointed auditor’s report, Article L. 821-5 may support a nullity action, subject to the facts and the applicable procedural rules. The claimant should identify each resolution affected and explain why that resolution falls within the statutory organ covered by Article L. 821-40. It is not enough to attach a Kbis showing that the auditor’s name was absent. The claim should connect the absence or irregularity to the report, the meeting’s competence and the statutory duty at the relevant date.
When the problem is an unannounced candidate, the 2018 decision supplies a precise warning. The Court did not say that associates lose their freedom to choose a CAC. It held that the proposed appointment of different auditors is a new resolution when the candidate details in the circulated resolution are changed, and that the issue must be properly placed on the agenda. The safe remedy is generally to convene the competent meeting again with a clear agenda and the documents for each proposed auditor, rather than force an unexpected vote into the minutes of the old meeting.
When the vote took place at an AGE, the 2026 decision requires restraint. An extraordinary resolution is not automatically cancellable under Article L. 821-5 simply because a CAC was absent or irregularly designated. The claimant must examine the subject of the AGE, the articles, the statutory organ referred to by the nullity rule and any independent defect in the notice, quorum, voting rights or transaction. A request that ignores the 2026 ruling may fail even if the company should have appointed an auditor for another purpose.
Confirmation is another possible route, but it must be engineered carefully. Article L. 821-5 expressly refers to confirmation by the competent organ on a report prepared by regularly designated CACs. The company should first appoint a valid CAC through the correct procedure, define the financial years and resolutions to be reviewed, give the auditor the necessary books and records, and then place the confirmation question before the competent organ. The minutes should identify the prior defect, the auditor’s report, the resolution being confirmed and the votes. A vague declaration that “all prior acts are ratified” may not achieve the statutory result and may create a new challenge.
If the challenge concerns the auditor’s independence or a proper reason for recusal, the relevant shareholder threshold and time limits must be checked before proceedings are issued. Article L. 821-49 creates a judicial recusal mechanism and allows a new CAC to be designated if the request succeeds. If the issue is misconduct or an impediment, Article L. 821-50 can support a request to end the mission before its normal expiry. Neither route should be used as a substitute for a complaint about an AGE’s competence or an agenda defect.
The foreign location of a shareholder does not remove the need to act through the correct French corporate and judicial documents. The parent should nominate a representative with authority to instruct counsel, produce a current corporate extract and power of attorney, and preserve the original foreign documents. If the company has shareholders in several jurisdictions, it should create one evidence index that states the document date, language, signatory, translation status and relation to the challenged resolution. This reduces the risk that a procedural objection is lost in a cross-border document dispute.
B. How should the company regularise the mandate and filing trail?
Regularisation should be a controlled sequence, not a second informal vote. The company’s legal representative should first freeze the disputed minutes and notify the accountant, parent company and prospective CAC that the appointment is being reviewed. It should then prepare a short legal and accounting memorandum answering: which entity had the appointment obligation, for which financial years, under which threshold or voluntary route, which organ was competent, and what exact defect affected the earlier vote.
The second step is to map the group. Article L. 821-43 requires attention to control and, in the relevant cases, the entities controlled by the head of group. The foreign parent should provide its ownership chart, voting rights, shareholder agreements, consolidated or combined figures, related-party control documents and any existing group audit appointment. The French subsidiary should not treat the absence of a French Kbis for the parent as proof that the parent is outside the group. The statutory question is control, not the nationality of the shareholder.
The third step is to recalculate the figures for each affected year. Use the current 5/10/50 criteria for the ordinary calculation, the cumulative group figures where Article L. 821-43 and D. 821-171 apply, and the 2.5/5/25 figures for a qualifying controlled company under Article D. 821-172. Keep the underlying annual accounts, VAT-exclusive turnover calculation and average employee calculation. If a prior year was assessed under a different version of the Code, record the version and the opening date of the financial year; do not silently replace historical figures with today’s thresholds.
The fourth step is to select a CAC who can accept the mandate and perform the work. The company should request written acceptance, registration details and any declaration required for independence. If the proposed auditor has recently handled a merger, contribution or other operation for the company, the resolution should address the information required by Article L. 821-40. A foreign group auditor may coordinate the work, but coordination does not replace the French statutory designation.
The fifth step is to convene the right organ with a usable agenda. The notice should state the proposed appointment or replacement, identify the CAC and any substitute, indicate the mandate length, attach or make available the required information and explain any confirmation or regularisation resolution. It should not bury the appointment in “miscellaneous matters”. If the company is a SARL, the notice and agenda must be checked against the specific SARL rules and the articles. If it is an SAS, the articles and the statutory default must be read together.
The sixth step is to state the mandate accurately. Under Article L. 821-44, the CAC is ordinarily “nommé pour un mandat de six exercices”, and the functions expire after the deliberation on the accounts of the sixth financial year. A replacement normally serves only the balance of the predecessor’s mandate. Where the company is making a voluntary appointment or falls within the relevant paragraphs of Article L. 821-43, Article L. 821-46 allows the company to limit the mandate to three financial years; the exact text is available at Article L. 821-46. The resolution should say which option is being used.
The seventh step is to adopt and sign consistent minutes. The notice, attendance record, proxy, resolution and minutes should all identify the same entity, auditor, substitute, mandate and financial years. The foreign parent’s representative should sign within the authority granted by the parent’s board or shareholders, as applicable. If a previous resolution is being replaced, the new minutes should state whether the old resolution is withdrawn, confirmed, superseded or left for judicial determination. The company should not rewrite a historic meeting as if the later meeting had occurred on the earlier date.
The eighth step is to complete the French formalities. The greffe is the court registry, and the Kbis is the official extract showing key registration information for a French company. The INPI one-stop shop handles business formalities through the Guichet unique and National Register of Enterprises. The company should submit the required documents through the applicable route, retain the receipt and check the resulting public information. A foreign parent should keep the filed French version and the document package supplied to the registry, not just a screenshot of an online submission.
The ninth step is to address the affected accounts and transactions. The CAC and accountant should identify which accounts required a report, which resolutions relied on the report, whether a confirmation procedure is available and whether a lender, purchaser, investor or foreign parent received information that described the company as audited. If an AGE resolution is outside the statutory nullity rule identified by the 2026 decision, that does not automatically answer contractual, disclosure or director-liability questions. Each consequence must be tied to its own legal and factual basis.
The tenth step is to build a recurring control. Before the annual meeting, the company should refresh the threshold and group calculations, check the mandate expiry, confirm the auditor’s continuing appointment and add the appointment or renewal to the correct agenda. It should also keep the auditor’s requests, audit timetable, report and approval minutes together. A foreign founder who manages the company from another country should nominate a French contact for the registry and auditor, while retaining the parent-level approvals and control documents abroad.
A director should not ignore the criminal risk while deciding whether a prior resolution can be cancelled. Article L. 821-6 provides that failure by the director of an entity required to have a CAC to cause the designation is punishable by “deux ans d’emprisonnement et d’une amende de 30 000 euros”. The current provision is available at Article L. 821-6. It also addresses failure to convene the CAC and obstruction of checks. The fact that the director is resident in the United States, the United Kingdom, Singapore or another country does not by itself remove the French company’s duty.
The company should therefore avoid two opposite mistakes. It should not claim that every AGE decision is void because the auditor was missing, especially after the 2026 decision. It should not claim that a defective AGE vote cures the failure to appoint a CAC for the AGO that approves accounts. The right response is a documented review of the organ, agenda, resolution, accounts, group perimeter, auditor status and available regularisation route.
Conclusion
A French statutory auditor appointment can be challenged when the wrong corporate organ voted, when the appointment was not properly placed on the agenda, when the resolution relied on an irregular auditor or when the company omitted a legally required appointment. But the legal result is not automatic cancellation of every resolution adopted while a CAC was absent. Article L. 821-5 has a defined scope, and the Court of Cassation’s 11 March 2026 decision, no. 24-16.260, confirms that an extraordinary resolution cannot be annulled on that specific ground alone.
For a foreign founder, the safest route is to preserve the original file, calculate the appointment obligation and group perimeter, identify the competent organ, select the remedy that matches the defect, and convene a properly documented regularisation meeting. A clear agenda, a valid acceptance, an express mandate, accurate minutes and a complete INPI and registry trail will usually be more valuable than a rushed attempt to repair the record after a dispute.
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