Question 13708 — local authorities

Summary

Ms. Christine Pires Beaune draws the attention of the Minister of Territorial Cohesion and Relations with Local Authorities to a particular point concerning the legal regime applicable to local mixed economy companies and local public companies. Under article L. 1522-1 of the general code of local authorities relating to local mixed economy companies, the company takes the form of a limited company governed by Book II of the Commercial Code, subject to the application of the provisions of Title II relating to local mixed economy companies. The same provision applies to local public companies, which must take the form of a limited company governed by the same book of the commercial code. Article L. 1531-1 adds that, subject to the provisions of the latter, they are subject to Title II of this book of the general code local authorities, namely the provisions concerning local mixed economy companies. This overlapping of the different regimes must therefore be understood as subjecting local mixed economy companies and local public companies to a regime derogating from common company law for only the express provisions falling under the special regime arising from the laws applicable to local mixed economy companies and to local public companies. In other words, when said laws say nothing, common corporate law must apply. On this point, and despite this public law regime applying to these companies, case law considers that they remain subject to a private law regime, including for local public companies whose shareholding is 100% public. Ordinance No. 2014-948 relating to governance and operations on the capital of companies with public participation only applying to commercial companies in which the State or its public establishments hold a capital participation, the question arises, in local mixed economy companies and local public companies, of the presence of employees within the board of directors or the supervisory board. The commercial code provides for two regimes in this regard, one obligatory, the other optional. The first falls under article L. 2323-62 of the labor code. In this scenario, these delegates sit on the board of directors, but without having the status of administrators. The second, which falls under Article L. 225-27 1° of the Commercial Code, is of general scope and involves a modification of the company's statutes decided by the extraordinary general meeting. These provisions are applicable regardless of regardless of the form of the company, monist or dualist (L. 225-79 and L. 225-80 of the commercial code). She would therefore like to know what is opposed to the application of this social progress regime falling under Article L. 225-27 paragraph 1 of the Commercial Code. Certainly, these are structures imbued with a specific regime resulting from the presence of local authorities but for which the legislator refers to common company law for anything that is not expressly provided for in the aforementioned articles of the general code of local authorities concerning mixed economy companies and local public companies.

Machine translation from French. The official text remains authoritative.

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