Exclusive control, joint control, Study S·EC175 in Joly Dictionary of Companies

“Control, taken in the sense of domination – which will be the subject of our study – invites us to examine the power exercised by a person – whether natural or legal – over the will of the company. The exercise of power offers the controller the possibility of defining the company's strategy in such a way that it corresponds to his own aspirations.”

Equal voting presumes joint control, Joly Society Bulletin

"The case law relating to joint control continues to evolve, enabling the emergence, through decisions, of consistent solutions which concern both the scope of application of this concept and the elements of its legal definition."

The articulation of the fiat contract and the smart contract: a source of insecurity?

The idea of the article was to demonstrate that the creation of a smart contract registering a contractual clause in a blockchain can raise a number of issues regarding the interpretation of the parties' intentions.

The agreement establishing joint control, commentary under CE 6 Dec. 2021, no. 439650, Bull. Joly sociétés 2022, no. BJS200u8, p. 18

“A rewriting of Article L. 233-3, III, is necessary so that the definition of joint control finally corresponds to its essence: it is a power exercised at the level of strategic decisions, regardless of the body that defines them, and not at the level of any decision falling within the competence of the general meeting of the controlled company!”

The limits of a single-headed conception of the group of companies, commentary under CAA Douai, September 10, 2019, no. 19DA01375, Bull. Joly sociétés 2019, no. 120h2, p. 13

“One of the essential objectives assigned to the notion of control is to lift the veil on the more or less complex legal arrangements which sometimes aim to conceal the identity of those holding power within a company or group of companies.”

Joint control and Charasse amendment, comment under CE, March 15, 2019, no. 412155, Bull. Joly sociétés 2019, no. 120a7, p. 39

“Judges find themselves obliged to formally refer to inadequate criteria (concerted action and the actual determination of decisions in a general meeting), while retaining those which could result from a more appropriate definition…”

Blockchain and crossing the shareholding threshold in Blockchains, corporate law and corporate governance (ed. P. Barban and V. Magnier), March 2019

“This question arises more generally from a reflection on the role of blockchain as a “regulatory tool”: thanks to the implementation of a specific IT protocol, we would force de facto And ex ante actors to respect certain obligations”

Social and solidarity economy and agricultural cooperatives in Proceedings of the Current Affairs Conference on Agricultural Cooperatives, October 14, 2016, Revue de droit rural, No. 460, February 2018, file 12.

“But the legislator goes further by freeing itself from the legal form adopted by the company: the law intended to encompass all economic actors in the sector. Thus, any company, including commercial companies, that meets the definition can now be labeled ESS.”

The transition from exclusive control to joint control does not necessarily constitute a concentration operation, commentary under CJEU, 7 Sept. 2017, no. C-248/16, Bull. Joly sociétés, Nov. 2017, § 117a4, p. 674/h3>

“In principle, the appearance of a new economic player on the market constitutes a concentration operation, regardless of the structure adopted by the interested parties. A new entity exists alongside existing ones and therefore disrupts the market configuration; however, when this is the work of pre-existing companies, there is indeed a concentration. However, we must avoid giving in to the temptation of such simplistic reasoning.”

When must a manager be informed of the reasons for his dismissal?, commentary under Cass. com., June 21, 2017, Bull. Joly sociétés 2017, § 116y0, p. 604

“Must a manager whose dismissal is anticipated be notified of the alleged grievances? Such a requirement would provide better protection to the person concerned. Naturally, he or she would have the necessary time to prepare a defense that could influence the decision to dismiss him or her. However, does the requirement for prior information of the manager not stem from the guarantee of the rights of defense?”

In search of the criterion of joint control (regarding a cartel on the cathode ray tube market), commentary under CJEU, 18 Jan. 2017, No. C-623/15, Toshiba Corp, Bull. Joly Sociétés, May 2017, § 116h7, p. 314

“Thus, the supervisory authorities are required to carry out the qualification operation in two stages: first the qualification of joint control, then the qualification of full exercise. Between the two notions, there is not a simple difference of degree; there is a real difference of nature. Joint control is characterized at the level of the strategy adopted by the joint venture as an economic actor on the market.”

Consultation of the works council on strategic orientations: first details eagerly awaited, commentary under CA Lyon, ch. soc. C, 8 Jan. 2016, Bull. Joly sociétés 2016, § 114z8, p. 268

“The strategy of the subsidiary is not only influenced, in its content, by its membership in the group, but is also, as for its adoption, subject to the approval of the company at the head of the group. Indeed, the two essential criteria for the definition of the group are the existence of a link of control and a decision-making unit.”

Prevarications on the definition of joint control, commentary under CSA, 14 Oct. 2015, Bull. Joly sociétés 2016, § 114z6, p. 253

“Case law and decision-making practice seem to be bogged down in imprecise reasoning which, on the one hand, accepts the adoption of a modern definition of joint control and, on the other, insists on linking it to the literal criterion derived from a poorly drafted text. However, is it the role of judges to “break” the text of Article L. 233-3?”

The prohibition on the removal of the partner's voting rights: new episode, commentary under Cass. com., February 10, 2015, Bull. Joly sociétés 2015, § 113r1, p. 297

“In a decision that reiterates a well-established praetorian rule, the Court of Cassation once again affirms the sacred nature of the shareholder’s vote. It refuses to give effect to a statutory exclusion clause that has the effect of removing a shareholder’s right to vote.”

“Emerging” strategic decision-making and the risk of CEO omnipotence, Bull. Joly sociétés 2015, § 112×3, p. 54

“The strategic decisions of the SA are generally adopted within the framework of the annual guidelines decided by the board of directors. However, certain “emerging” strategic decisions cannot be anticipated and are necessarily adopted during the financial year. For these decisions, positive law does not allow for the precise determination of the competent corporate body. There is therefore a real risk of omnipotence on the part of the CEO.”

When the creation of a holding company is sufficient to circumvent the regulations on threshold crossings..., commentary under CA Paris, June 24, 2014, Bull. Joly Bourse 2015, § 112a8, p. 8

“Currently, there remains doubt as to the application of certain texts to the control in its exclusive and joint form, as to the definition of the person of the controller and as to the taking into account of complex chains of control. In principle, the ratio legis of the reference text would make it possible to resolve these problems”

Joint Control. Contribution to the Study of Power in Societies, monographic work, Editions Joly-Lextenso, Collection Pratique des affaires, 2014

“Business law has struggled with defining the concept of control: a person can be dominated by a multitude of means. More specifically, corporate law techniques and the imagination of practitioners make possible a wide variety of control schemes. A company can be dominated when its managers are loyal to the controller, when important decisions can be dictated by the controller, or when its economic viability depends on the controller.”