Coronavirus – Impact on legal filings and board meetings – France

• France

• Coronavirus - Country overview
• Coronavirus - Tax issues

02-04-2020

Due to the COVID-19 outbreak in France, everyone has been requested to work from home and accordingly, the whole team is currently working remotely. Public administrations as well as our legal service providers normally in charge of the legal filings are currently closed but are still working and processing files. However, due to this situation, we anticipate that certain legal formalities (in particular those requiring tax registrations) will be delayed.

Impact of coronavirus on tax authorities for tax registration

All tax registration offices are closed to the public since 16 March 2020. Documents to be registered may be sent to competent tax offices by mail/courier, they are still processing files (in chronological order except for urgent matters).

→ if you anticipate any legal formalities, please contact us as soon as possible in order for us to guide you (where you are in a position to collect and send original documents by courier/mail). In particular, we need guidance on the address of the competent tax office to which originals shall be sent, the amount of registration duties to be paid and the bank account details of the tax office for the purpose of paying such registration duties

Impact of coronavirus on companies registries

All companies’ registries are also closed. However, since the beginning of the year, all of them (except certain overseas ones) accept e-filings and are processing files received by electronic means or courier in a chronological order as well (with a priority for urgent matters). Accordingly please note that legal filings are being significantly delayed (especially for the legal formalities requiring a prior tax registration as only original documents are accepted and files must now be exclusively sent to them by courier/mail).

A new e-filing platform has been put in place which allows for e-filing, in particular for requests for extension of the annual accounts approval deadline (only originals were previously accepted by French commercial courts).

New legislation

The parliament has adopted on 22 March 2020 a draft bill (draft bill n°376 to face the COVID-19 pandemic) which has been enacted on 23 March 2020 [1] and which authorises the government to take legal measures by way of Governmental orders (Ordonnances) in order to, take the following decisions aimed at minimising the financial consequences of the pandemic (Article 7) on companies:

• simplify and adapt the conditions in which shareholders’ meetings and management bodies are allowed to pass resolutions and meet - as well as more generally, amending corporate laws relating to how shareholders’ meetings are held
• extend legal time period for certain acts and formalities
• simplify and adapt the legal framework regarding the preparation, audit, approval and publication of the annual accounts and any other documentation companies are legally bound to file or publish.

The French Government has enacted on 25 March 2020, 26 Ordinances in total, two of which mainly impact COSEC matters (the “Ordinances”):

• Ordinance n° 2020-318 dated 25 March 2020 adapting rules applicable to the establishment, drawing up, audit, review, approval and publication of annual accounts in the COVID-19 context,
• Ordinance n° 2020-321 dated 25 March 2020 adapting rules applicable to the holding of shareholders’ and board meetings and the related decision-making processes in the COVID-19 context
• Ordinance n°2020-306 dated 25 March 2020 relating to the extension of legal time periods ending during the COVID-19 emergency state time period and adaptation of procedures during the same time period.

Main temporary legal measures enacted by the ordinances

Approval of annual accounts

• Extension by 3 months of the legal deadline for approval of annuals accounts (until 30 September 2020 for companies having ended their financial year as at 31 December 2019) [2]
• Extension by 3 months of the legal deadline for the Management Board (Directoire) to present to the Supervisory Board (Conseil de Surveillance) the documentation provided by Article L.225-68 of the French Commercial Code [3]
• Extension by 2 months of the legal deadline applicable to Boards of Directors, Management Boards (Directoire) and Managers to prepare the documentation relating to forecast management (gestion prévisionnelle) [4]

• Extension by 2 months of the legal deadline applicable to liquidators to prepare the annual accounts and their related report [5]

Holding of shareholders' and board meetings

• listed companies: no nullity for failure to convene members by mail in cases resulting from circumstances falling outside the scope of the company (confinement measures being eligible)
• requests for information/documentation received from members prior to meetings can be made/satisfied by emails provided that the said members specify in their requests their email addresses

Where meetings are to be held in places subject to Covid-19 related confinement measures:

• Shareholders’ and Board meetings may be convened by any means (including for instance by regular mail or emails) enabling effective notification of its recipients (even if this is not provided by the Articles of Association of the company)
• Shareholders’ and Board meetings can be held by telephone or video-conference (even if the Articles of Association of the company do not provide for it)
• Shareholders’ and Board consultation can be made via written consultation (even if the Articles of Association of the company do not provide for such consultation method – save for circumstances where French law does not allow it)
• Shareholders’ meetings convened prior to the Ordinances may nonetheless be held by telephone or video-conference or written consultation, if at least 3 days prior to the meeting, members and other persons entitled to attend the meeting (e.g. auditors or representatives of the Works Council) were informed (by any means) of these new modalities

→ The above temporary legal provisions are applicable with a retroactive effect, i.e. for meetings held as from 12 March 2020 and until 31 July 2020 (or until at the latest 30 November 2020 if provided later on by Decree) and will be specified/completed by Decree.

Extension of legal time periods: impact on the timing of current and upcoming reorganisation

The below measures are applicable to legal time periods expiring between 12 March and the expiration of the period of 1 month from the date of the end of the state of health emergency. Accordingly, for the time being, all time periods expiring between 12 March and 24 June 2020 [6] (included) are included.

Any act, recourse, formality, registration, declaration, notification or publication, which would have needed to be completed during this period “will be considered to having been made at the time that it was effected in a period which does not exceed, from the end of this period, the legal period given to act, within the limit of 2 month”.

Therefore, the Ordinance allows for any act or formality the term of which has lapsed during the abovementioned period, to be considered as not late (on the condition nonetheless that it is completed within the provided additional time period).

The scope of the Ordinance is rather unclear, should it mean that: (i) that all time periods expiring during the aforementioned time, are pushed back in their entirety, to take effect from the end of this period and within the limit of 2 months?, or (ii) that these periods are simply suspended only for the time that is left, and will resume from the end of this period and within the limit of 2 months?

Most legal commentators agree with the first option (see (i) above) and consider, in addition, that even if “opposition periods” (délais d’opposition) are not expressly referred to by the Ordinance, these measures are applicable to such opposition periods. Accordingly (this is also the interpretation made by most of the French Companies Registry), the time periods for creditors to oppose certain transactions, such as dissolution without liquidation (TUP - Transmission Universelle de Patrimoine), mergers, partial contribution of assets and liabilities (apports partiels d’actifs), share capital decrease (made for reasons other than existing losses), which should, in principle, expire in March or April are stopped. They will start running again from the beginning (either for their initial duration of 30 or 20 days), as from 24 June 2020.

The above measures will have a significant impact on the timing of current reorganisations and those expected to take place in the first half of 2020.

Distributions of dividends

The French Minister of Economy has made an announcement on 27 March 2020 regarding distribution of dividends, indicating that companies proceeding to dividend distributions should not be entitled to receive any of the governmental aid recently enacted in relation to the COVID-19 state of emergency (to minimise the financial consequences of the pandemic), as such distributions would prove that they have sufficient financial means to face the COVID-19 crisis.

According to the Minister of Economy, where companies have already received such aid (at the time of deciding of the distribution of dividends ), they should be liable to reimburse the value of the aid received in full, in addition to penalties.

So far, no specific legal measures in this respect have been enacted and we have consequently no additional information on the exact nature of the governmental aid concerned (if any).

[1]          COVID-19 Emergency Law n°2020-290 dated 23 March 2020

[2]          Applicable solely (i) to companies having ended their last financial year as from 30 September 2019 (ii) provided that the statutory auditor did not issue its report before 12 March 2020

[3]         Applicable solely (i) to companies having ended their last financial year as from 30 December 2019 (ii) provided that the statutory auditor did not issue its report before 12 March 2020

[4]          Applicable solely to companies having ended their last financial year as from 30 November 2019

[5]          Applicable solely to companies having ended their last financial year as from 30 December 2019

[6]          If the state of emergency is not further extended

[7]          applicable solely to companies having ended their last financial year as from 30 December 2019