Most business leaders know that they have a duty of loyalty both towards their society with their associates. But more often, they would be in sentence to define clearly the content. And for good reason: no text provides that duty, resulting to a jurisprudential construction, whose edges are still unclear and appear to widen over the decisions of the Court of cassation. In a recent judgment, the Court of cassation (1) thus increased significantly this duty to the partners, at risk to come into conflict with some texts in force.
The duty of loyalty to the partners appeared when some partners gave their securities directly or the leader, the latter indirectly selling shortly after with a comfortable value. In the first cases before the Court of cassation, that he bought or was purchase securities, the leader knew that negotiations were taking place in parallel for resale. However, the shareholder transferor did not know the existence of these other discussions and had therefore not way of knowing that its securities would very probably reassigned to a much higher price. The authorities considered that the silence of the leader on this essential information constituted a fault, given the duty of loyalty owed. Over its decisions, the Court of cassation took care to clarify that the duty of loyalty is only to leaders and as a single shareholder, he, has no obligation to reveal the existence of discussions on the titles it would purchase.
The final decision of the Court of cassation goes much further. If it is well a case where the leader purchased indirectly securities of one of its partners, on the other hand, no resale of these titles was scheduled and no concealment to was in question. According to the Court of cassation, the leader may have breached his duty of loyalty in having not attracted the attention of the vendors on the existence of distributable profits in an amount greater than the sale price.
Large and spontaneous obligation
But this information is really information that emerges from the reading of the social accounts, according to the case had been made available partners. In other words, it is criticized leaders do not communicate information associates with a minimum of care they could obtain. Therefore, it slipped of the duty to disclose information to which the partners did not access the duty to disclose information yet available.
It may also wonder about the consistency of this decision with the texts governing the right to information of the partners. While in previous decisions, the information (the existence of parallel negotiations) was external to the company, in the new decision is an internal information (the amount of distributable profits). The Act provides the various means available to the partners to information internal to the company, such as application of certain documents or the right to ask written questions in LLCS (form of the company subject to the decision). Seems to provide the Court of cassation goes beyond, for two reasons. On the one hand, in her view, it would be the leader to take the initiative to communicate information in the absence of any request for partner, despite the legislation in force. On the other hand, information that should have provided the leader is information that is not covered by the texts. The obligation to inform is spontaneous and wider.
Finally, the reading of the recitals of the decision led to wonder if the duty of loyalty is eventually not go beyond a simple duty of information into duty of Council. Could indeed understand that here the fault of the leader is not a lack of communication since the documents were but a lack of analysis of their content. If this case does not result from particular circumstances and he had to be confirmed later, it cannot fail to contribute to further disrupt relations between those who accept to expose assuming a function and remaining passive, thus rendering no service. Probably, it is regrettable that the first track responsibilities continues to increase while the second being, he still more déresponsabilisé.
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