France's 1 October 2025 Nullity Reform: What Changes for SAS Decisions and Bylaws

The 2025 nullity reform: security first, sanction second

Ordonnance 2025-229 of 12 March 2025 rebuilt the French law of corporate-decision nullities, with effect from 1 October 2025. The declared objective is legal security: fewer decisions exposed to annulment, clearer causes, and a judge who filters before striking. The general rules now sit in the Civil Code (Arts. 1844-10 to 1844-17), the causes of nullity have been redrawn, a judicial triple test — grievance, influence on the decision, proportionality — screens most annulments, and anti-cascade mechanisms protect companies from chain reactions. For the SAS specifically, the reform adds the provision practitioners had asked for: Art. L 227-20-1 of the Commercial Code, letting the bylaws themselves attach nullity to violations of the rules they establish.

This guide covers the regime that governed until 30 September 2025, the new causes of nullity and the notion of « décision sociale », the judge's new filter and its exceptions, the bylaws-nullity faculty of L 227-20-1 and how to draft for it, the prescription changes — two years as the new general rule, with the three-month capital-increase window recast — and the practical consequences for capital operations, shareholder decisions and the SAS's transfer-restriction clauses. For the operations most affected, see our guides to the cash capital raise procedure and to the employee share-offer resolution.

Until 30 September 2025: the closed catalogue and its gap

Under the outgoing regime, a shareholders' deliberation could be annulled in a closed set of cases (C. com. Art. L 235-1, in force until 30 September 2025): violation of an imperative rule of Book II of the Commercial Code governing commercial companies — the rule imposing a collective decision for the matters of Art. L 227-9, al. 2 being the SAS classic — violation of the imperative rules of the company-contract provisions of the Civil Code (Arts. 1832 to 1844-17, excepting the duty of Art. 1833, al. 2 to manage in the company's interest with regard to social and environmental stakes), and the general causes of contract nullity (C. civ. Arts. 1128 to 1171).

The notorious gap: violating the bylaws was, in principle, not a cause of nullity. The Cour de cassation had opened one narrow door — a violation of a statutory rule imposing a collective decision (including its forms and conditions) could ground annulment where the violation was of a nature to influence the outcome of the decision process (Cass. com. 15 March 2023, n° 21-18324) — but a decision taken in breach of any other bylaws rule stood, leaving damages as the only remedy. The same logic held for the pacte d'associés: decisions taken in breach of a shareholders' agreement stand (Cass. com. 18 September 2024, n° 22-23075). For capital increases, a separate text distributed the sanctions between imperative and facultative nullities according to the rule breached (C. com. Art. L 225-149-3, until 30 September 2025), and the general prescription was three years from the deliberation (L 235-9, al. 1) — three months, for capital-increase nullities, from the collective decision following the increase (L 235-9, al. 3).

From 1 October 2025: the new causes and the « décision sociale »

For decisions taken from 1 October 2025, the causes of nullity are restated in the Civil Code (Art. 1844-10, al. 3): violation of an imperative provision of company law — a perimeter that keeps the Civil Code's company-contract rules and deliberately reaches beyond the legislative rules of Book II of the Commercial Code, still excluding the Art. 1833, al. 2 management duty — and the general causes of contract nullity (Arts. 1128 to 1171). What counts as « imperative » remains for the judge to say; the treatise's SAS examples include the collective decisions imposed by Art. L 227-9, al. 2, the unanimity required to adopt or modify inalienability and change-of-control clauses (Art. L 227-19, al. 1), and the rules defining distributable profit and the organ competent to declare dividends (Cass. com. 12 February 2025, n° 23-11410).

The reform also consecrates the notion of « décision sociale »: from 1 October 2025 the regime covers the decisions taken collectively by the shareholders and the whole range of internal decisional acts within the company — including decisions of the governance organs. Expressly outside the notion: contracts concluded between the company and third parties (report to the President on Ord. 2025-229). That boundary matters for the SAS's transfer machinery, as the last section shows — a share cession is not a décision sociale, and its own nullity regime under Art. L 227-15 runs on its own track.

A dedicated regime now covers contributions: from 1 October 2025 the nullity of an apport — cash, in kind or in industry, at incorporation or mid-life — can result only from the violation of an imperative company-law provision (the Art. 1833, al. 2 duty excepted) or a general contract-nullity cause; an annulled contribution entails cancellation of the shares issued against it and restitution of what the contributor performed, and if every contribution falls, the company dissolves (Art. 1844-10, al. 2).

Where does your situation land under the new regime?

Pick the situation closest to yours and see how the reform treats it.

The judge's new filter — and the cases that bypass it

The reform's centrepiece is a screening test the judge must run before annulling a décision sociale (C. civ. Art. 1844-12-1, from 1 October 2025). The claimant must establish, cumulatively:

• A grievance — the claimant justifies a grief resulting from the irregularity invoked; an abstract breach with no injury to the claimant does not carry an annulment;
• Influence on the decision — the irregularity had an influence on the direction of the decision; a defect that changed nothing in the outcome fails the test;
• Proportionality — the judge balances the consequences of the irregularity against the consequences of annulment, in light of the company's interest; a technical defect does not justify unwinding an implemented operation.

The filter has express exceptions, where the legislator judged the breach structurally unacceptable and the nullity remains de plein droit: the treatise's examples are the omission to allocate 5 % of the year's profit to the legal reserve (C. com. Art. L 232-10, as in force from 1 October 2025) and the participation of holders of ordinary shares slated for conversion in the vote creating a preference-share category (Art. L 228-15, al. 2). Outside those islands, the discretionary review governs.

Around the filter, the ordinance builds three shock absorbers. No cascade from organ composition: as a general principle, the irregular composition of a corporate organ is not, by itself, a cause of nullity of its decisions, save express legal exception (Art. 1844-15-1). Deferred effects: where the retroactivity of an annulment would produce manifestly excessive effects for the company's interest, the judge can defer the nullity's effects (Art. 1844-15-2). Regularisation: the court can, even of its own motion, set a deadline to regularise the situation — typically to consult the shareholders properly, with the convening notices, draft resolutions and information documents the first attempt lacked (Art. 1844-13) — and, in any event, the nullity action is extinguished where the cause of nullity has ceased to exist by the day the court rules on the merits at first instance (Art. 1844-11). The strategic consequence runs in the company's favour: a curable defect, cured promptly, ends the litigation.

Art. L 227-20-1: the bylaws can now install their own nullities

The principal change for the SAS, requested by practitioners and delivered by the ordinance: from 1 October 2025, the bylaws of an SAS can provide that décisions sociales taken in violation of the rules the bylaws establish are null (C. com. Art. L 227-20-1). The provision closes the historic enforcement gap — under the old regime a bylaws breach yielded damages while the decision stood; under the new one, the bylaws can make the decision itself fall. And the faculty reaches rules that are not imperative: the SAS's contractual architecture — its convening procedures, its information protocols, its reserved-matter lists, its conflict exclusions — can now carry a structural sanction the law never gave it.

The treatise pairs the opportunity with an explicit warning: the faculty can become a source of extension of nullity causes if the bylaws stipulate, without distinction, that violation of all their rules entails nullity. A blanket clause converts every drafting ambiguity and every procedural slip anywhere in the bylaws into annulment exposure — precisely the insecurity the reform set out to reduce. Great prudence is required of drafters, even though the judge's screening has been reinforced: the grievance-influence-proportionality filter of Art. 1844-12-1 still stands between a stipulated nullity and an actual annulment, but no company should plan on the filter saving it from its own drafting.

The working method for new bylaws (and for amendments to existing ones) is selection. Identify the rules whose violation should kill the decision — typically the convening and information machinery that protects minority participation, the exclusion of conflicted votes, the reserved matters that protect an investor's bargain, the procedures attached to the transfer-restriction clauses — and attach the nullity stipulation to those rules by name. Leave operational and housekeeping provisions outside the stipulation. And coordinate with the pacte: decisions in breach of a shareholders' agreement still stand (Cass. com. 18 September 2024, n° 22-23075), so a protection that must bind the decision itself now has a proper home in the bylaws under L 227-20-1 — one more argument, after the sanctions gap, for moving structural protections out of the pacte; our guide to the pacte-versus-bylaws split maps that allocation.

How long can this decision still be attacked?

Pick the decision type and its date — the planner maps the challenge window under the reformed rules.

Prescription: two years as the rule, three months for capital increases

The general prescription for nullity actions drops from three years to two years (C. civ. Art. 1844-14, from 1 October 2025). The transition is precise: the two-year period applies to actions born from 1 October 2025; for actions born before that date, the prescription time already elapsed is counted, and the total duration cannot exceed three years (C. civ. Art. 2222, al. 2). Companies carrying pre-reform defects therefore see their residual exposure tick down on the old arithmetic, never extended by the reform.

The abridged windows survive — recalibrated. For capital increases, the action prescribed, until 30 September 2025, in three months from the collective decision following the increase (L 235-9, al. 3); from 1 October 2025 the window stays at three months but starts at the contested decision itself — or, where the operation ran on a delegation of powers or competence, at the collective decision in which the report on the operation's definitive conditions is brought to the shareholders' knowledge (C. com. Art. L 225-149-4). Two companion rules complete the capital-increase regime: the nullity of a capital-increase decision is opposable to all subscribers (Art. L 225-149-5, from 1 October 2025), and the voting and dividend rights of shares issued in violation of the capital-increase rules are suspended until regularisation, any vote cast or dividend paid in the meantime being null (Art. L 225-150). Merger and demerger decisions likewise keep an abridged prescription (L 235-9, al. 2 until 30 September 2025; L 236-2-1 from 1 October 2025).

And across all windows, the standing kill-switch: the nullity action is extinguished where the cause of nullity has ceased to exist by the day the tribunal rules on the merits at first instance (L 235-3 old; C. civ. Art. 1844-11 new). A fresh, properly convened collective decision curing the defect ends the action — which is why the first response to a threatened nullity claim is usually a regularisation calendar, not a defence brief.

What it changes in practice: capital operations and shareholder decisions

Capital operations. Until 30 September 2025, a decision violating the capital-increase rules incurred, depending on the rule breached, an imperative or a facultative nullity (L 225-149-3). From 1 October 2025 the nullity incurred is facultative in every case and concerns only imperative provisions — with the judge's deeper review before pronouncing it. The textbook illustration is the employee share-offer resolution of Art. L 225-129-6: its omission at a cash raise exposed the raise to automatic nullity under the old regime; under the new one the challenge passes through the filter — the claimant's grievance, the omission's influence, the proportionality of unwinding a funded round. The substantive obligations themselves do not move: the fully-paid-capital rule, the commissaire-aux-apports machinery, the creditors' opposition windows and the equality of shareholders all remain, and an abusive capital increase — one framed so minority shareholders cannot subscribe — remains annullable on abuse-of-majority grounds (Cass. com. 16 April 2013, n° 09-10583).

Shareholder decisions generally. The imperative anchors keep their force: a matter of Art. L 227-9, al. 2 decided by an organ instead of the shareholders, or an inalienability or change-of-control clause adopted without unanimity (Art. L 227-19, al. 1), violates an imperative company-law rule and grounds a nullity action — screened, like everything else, through Art. 1844-12-1. Bylaws-procedure violations follow the temporal split described above: for decisions up to 30 September 2025, the Cass. com. 15 March 2023 door for statutory collective-decision rules whose breach could influence the outcome; for decisions from 1 October 2025, whatever the bylaws themselves have sanctioned under L 227-20-1. The proof discipline this implies is the real operational change: convening notices, information packages, vote records and minutes are now litigated through the lens of grievance and influence — a company that documents its decisions cleanly walks into the filter with the better file.

The transfer-restriction clauses. The SAS's cession machinery sits largely outside the reform's perimeter, because a share transfer is a contract, not a décision sociale — the new notion expressly excludes conventions between the company and third parties, and cessions between parties follow the same logic. A cession made in violation of the bylaws' clauses remains null under Art. L 227-15, on its own track. What the reform does touch is the decisions surrounding the clauses: an agrément decision, an exclusion vote or a suspension decision taken in violation of imperative rules or of bylaws rules sanctioned under L 227-20-1 is exposed within the general framework — and the defence-rights case law built around exclusion procedures keeps its bite through the filter, a stripped vote or a skipped hearing being exactly the kind of irregularity that both creates a grievance and influences the outcome. Our guides to approval clauses, founder lock-ups and excluding a shareholder cover those procedures in detail.

The post-reform playbook for founders, investors and counsel

At incorporation. Treat L 227-20-1 as a design decision of the same rank as the transfer clauses: choose the rules that carry nullity, name them, and resist the blanket. Align the decision machinery — convening, information, vote recording — with the documentation standard the filter now rewards.

At rounds. Investors negotiating French SAS rounds since 1 October 2025 increasingly ask for stipulated nullity on the protections they care about: information rights before substantive votes, conflict exclusions, reserved matters. The negotiation belongs in the restated bylaws at closing — where the whole table signs — and the stipulations should be coordinated with the pacte so each protection sits in the layer whose sanction fits it.

For existing companies. Two reviews are worth running. A bylaws review: whether the existing protections deserve an L 227-20-1 stipulation, added by amendment at the bylaws' majority (unanimity only where the amendment touches the L 227-19, al. 1 clauses). And a defects review: historical decisions with known irregularities, mapped against the transitional prescription — time already run counts, the total capped at three years — with proactive regularisation as the preferred exit, since a cured cause extinguishes any action before judgment (Art. 1844-11). The short capital-increase window cuts both ways: it protects closed rounds quickly, and it means a shareholder who wants to challenge one has three months to move, not years.

Frequently asked questions about the 1 October 2025 nullity reform

This article is for general information only and states French law as published in the sources available at the date shown above. It does not constitute legal advice. The application of the 1 October 2025 reform to a specific company depends on its bylaws, the decisions in question and the timing of any action. Always seek qualified legal advice before drafting nullity stipulations, regularising decisions, or bringing or defending a nullity action in a French company.