No Statutory Amendment Rule: The Starting Point
In a SARL, extraordinary decisions require a two-thirds majority. In a SA, article amendments require an extraordinary general meeting with a two-thirds majority of votes cast. These statutory thresholds give certainty regardless of what the articles say. In a SAS, there is no equivalent statutory default. The articles specify the decision-making rules, and those rules cover article amendments just as they cover all other decisions. If the articles require three-quarters for amendments, three-quarters is what is required. If they are silent on the amendment procedure, there is no statutory rule to fill the gap — and any amendment purportedly made below unanimous level is of uncertain validity.
This makes the article amendment procedure clause one of the most consequential provisions in any set of SAS articles, and one of the most frequently underdrafted. Founders who want flexibility without repeatedly needing unanimity must explicitly provide for lower majority thresholds. Founders who want to protect the original governance bargain against majority dilution must explicitly require unanimity. Neither position is the default.
The amendment procedure clause is the meta-clause that governs all other clauses. A SAS whose articles allow a simple majority to amend the articles can have any governance protection overridden by a determined majority. A SAS that requires unanimity for all amendments is structurally protected against majority dilution — but also structurally resistant to necessary evolution. The founders need to decide in advance which failure mode they find less acceptable.
Where Unanimity Is Always Required by Law
Even where the articles provide for majority-based amendments, two categories always require unanimous consent as mandatory law overriding any contrary provision.
Transformation Into a SAS (Art. L 227-3)
Converting any company — SARL, SA, SNC, or any other form — into a SAS requires the unanimous agreement of all existing shareholders. "Unanimously" means every single shareholder, not just those present or represented at a meeting. A shareholder who does not attend, does not vote, or abstains has not consented — their absence cannot be treated as approval. The unanimity requirement applies equally when the transformation occurs through a merger where a SAS absorbs another company: the shareholders of the absorbed company must also unanimously agree.
Increasing a Shareholder's Financial Obligations (Art. 1836 al. 2 C. civ.)
No amendment can increase the financial obligations of any shareholder without that shareholder's individual consent. An amendment requiring additional capital contributions, imposing personal liability that did not previously exist, or extending the scope of mandatory contributions cannot be adopted by majority vote against a dissenting shareholder. A mandatory call-up of already-subscribed but unpaid capital does not increase obligations — it enforces existing ones. An amendment adding a new category of contribution does increase them. In borderline cases, seek unanimous consent rather than rely on a majority and risk challenge.
Mandatory Shareholder Rights That Cannot Be Removed by Majority
Certain shareholder rights are mandatory under French law and cannot be removed by any majority vote, however large. The right to participate in collective decisions is one such absolute right (Art. 1844 C. civ.) — no amendment can deprive a shareholder of the right to participate in decisions the articles designate as requiring collective shareholder action. The prohibition on clauses léonines is equally mandatory (Art. 1844-1 C. civ.): no amendment can exempt any shareholder entirely from losses, or grant one shareholder all profits to the total exclusion of others. Such provisions are void regardless of the majority that adopted them.
What the Articles Can Freely Define
Subject to the mandatory limits above, the amendment procedure is entirely within the founders' contractual domain. They can provide for simple majority amendments across the board, differentiated majorities for different types of clause, supermajority requirements for governance-sensitive provisions, or unanimity for all. Common combinations: three-quarters majority for capital and governance provisions; simple majority for administrative provisions such as registered office. The articles can also delegate certain amendment powers to a governance organ — for example, authorising the president to amend the registered office or corporate name without a shareholder decision, which is common in large group structures.
The Practical Amendment Procedure
When an article amendment is validly decided, it must be formalised and registered. Since January 2023, article amendments must be filed electronically via the Guichet unique — paper filing at the commercial court registry is no longer accepted. The amendment takes effect against third parties only from the date of registration. Until then, the old articles remain in force as against third parties. Certified copies of the amended articles must be distributed to all shareholders — there is no permanent statutory right to demand updated articles, so the copy provided at the time of each amendment may be the shareholder's only guaranteed access to the updated document.
Protecting Minority Shareholders Against Majority Amendments
A minority shareholder in a SAS whose articles allow majority-based amendments faces a specific governance risk: a pre-emption right, approval clause, veto right, or enhanced information right negotiated at the outset can be amended away by a determined majority — provided the articles permit it. The tools available are contractual: require a supermajority or unanimity in the articles for provisions that protect minorities; use a shareholders' agreement to condition certain changes on the minority's consent; entrench specific provisions as individual rights rather than collective provisions. Where majority amendments cause actual harm, abus de majorité doctrine allows challenge — but litigation, proof of intent, and judicial assessment make it a costly and uncertain remedy. Prevention through good drafting is invariably preferable.
| Type of amendment | Unanimity required? | Governing rule |
|---|---|---|
| Transformation of any company into a SAS | Always — mandatory | C. com. Art. L 227-3 — no exception; all shareholders including absent and abstaining |
| Increase in any shareholder's financial obligations | Always — mandatory | C. civ. Art. 1836 al. 2 — general mandatory principle; individual consent required |
| Amendment of existing SAS articles generally | Defined by the articles | No statutory default — whatever majority the articles specify governs. Silence = legal void |
| Adopting or modifying approval (agrément) clauses | Defined by the articles | C. com. Art. L 227-14 (as amended by loi 2019-747) — articles freely determine the majority |
| Adopting or modifying exclusion clauses | Defined by the articles | C. com. Art. L 227-16 — same regime as agrément clauses since 2019 |
| Removing a shareholder's right to participate in collective decisions | Cannot be done — mandatory right | C. civ. Art. 1844; C. com. Art. L 227-1 — no majority can extinguish this right |
| Introducing a clause léonine (full exemption from losses or monopoly of profits) | Void regardless of majority | C. civ. Art. 1844-1 — such clauses are null as a matter of law whatever the vote |
- Step 1 — Financial obligations check: does this amendment increase any shareholder's financial obligations? If yes, obtain that shareholder's individual written consent before proceeding — no majority can override this (Art. 1836 al. 2 C. civ.).
- Step 2 — Mandatory rights check: does the change affect the right to participate in collective decisions (Art. 1844 C. civ.)? Does it introduce a clause léonine (Art. 1844-1 C. civ.)? If so, it cannot be made regardless of majority. Is it a transformation into SAS form (Art. L 227-3)? Unanimous consent required.
- Step 3 — Articles procedure check: what does the amendment procedure clause in the existing articles require for this type of change? Is the required majority available? If the articles are silent, take professional advice before proceeding — do not assume any particular majority applies.
- Registration and distribution: once validly decided, file via the Guichet unique (mandatory since January 2023 — paper filing no longer accepted). The amendment does not bind third parties until registered. Distribute certified copies of the amended articles to all shareholders immediately — there is no statutory right to demand updated articles at a later stage.
- Shareholders' agreement consistency: where a shareholders' agreement exists, verify that the article amendment does not conflict with the agreement. Contradictions between the two documents create governance uncertainty that typically requires a further amendment to resolve.
Article amendments that bypass required majorities or violate mandatory rules can be challenged and annulled — with serious governance and commercial consequences. We advise on SAS article amendments, shareholder decision procedures, and the drafting of amendment-proof minority protections.
Get Legal AdviceThis article is for general information only. It does not constitute legal advice. Article amendment procedures are highly specific to the content of each company's articles. Always seek qualified legal advice before initiating any amendment process.
