Setting Up a Board for Your French SAS: When Investors Require It

A board in a French SAS: entirely optional, entirely contractual

A French SAS is not required to have a board. The Commercial Code imposes one officer — the president — and leaves every other governance body to the bylaws: a management committee, a supervisory body, specialised committees, or nothing at all. Where the bylaws install a collegial body, its name, composition, powers and decision-making rules are contractual. That freedom is one of the structural advantages of the SAS over the SA, whose board architecture the Code fixes in detail.

This guide covers when investors push for a board in a French SAS, why the body must live in the bylaws rather than the shareholders' agreement, how to structure it (name, size, term, eligibility), the composition categories (founders, investor nominees, independents, observers), the powers a board can hold — reserved matters, vetoes, executive oversight — the meeting mechanics, and the compensation and liability framework for members. For the executive layer the board supervises, see our guides to the president and to the CEO and deputy CEO of a French SAS.

The bylaws-only nature of a board in a French SAS

The SAS regime is permissive on governance bodies: a president is required, everything else is designed. A French SAS can run with no board at all (the standard configuration for single-founder and small-team companies), with a single collegial body inspired by the SA's board, with a two-tier structure separating management from oversight, with specialised committees — or with several bodies in parallel. Each body's name, composition, term, decision rules and powers are what the bylaws say, and nothing else: the SA's statutory board rules are inapplicable to the SAS.

Two structural rules frame the freedom.

The body must be created in the bylaws — not in the pacte. Direction organs and collegial councils exist only where the bylaws install them; a shareholders' agreement cannot create a corporate organ. The point has real consequences: after an SA converted into an SAS whose new bylaws mentioned no board, the former director simply ceased to be one — and a price-adjustment clause tied to his remaining a director could no longer operate (Cass. com. 25 January 2017, n° 14-28792; Cass. com. 20 November 2019, n° 18-17787). Investor boards negotiated in a term sheet must therefore land in the bylaws, with the pacte carrying only the side terms.

The name should not borrow the SA's labels. To avoid confusion with the SA — whose texts on the conseil d'administration, directoire and conseil de surveillance do not apply to the SAS — the prudent drafting practice is to exclude those three terms and use SAS-native names: comité de direction, comité exécutif, conseil de direction, bureau exécutif de contrôle, or in practice comité stratégique. Nothing voids a bylaws clause using the SA labels, but the borrowed name invites arguments that SA rules were intended, and drafting practice firmly recommends against it. In this article « board » refers to whatever collegial body the bylaws create.

The registration test. Members of the collegial body — shareholders or not — must be declared to the trade registry and appear on the Kbis extract, alongside the president, where they hold the power to direct, manage or habitually bind the company (trade-registry doctrine, RCS bull. n° 11). A purely consultative body that advises without binding is not registered. The line between deciding and advising therefore determines both publicity and, as covered below, liability.

Breach of the body's own rules is not automatically nullity. Deliberations of a bylaws-created collegial body can be annulled only for violation of an imperative legal provision — not for breach of a bylaws or internal-regulation rule that the parties were free to design (Cass. com. 18 May 2010, n° 09-14855, board meetings held despite a composition shortfall). Ord. 2025-229 of 12 March 2025 reformed the nullity regime with effect from 1 October 2025. The practical lesson runs the other way: the discipline of a SAS board is enforced through liability, removal and the pacte's remedies, not through nullity.

When investors push for a board in a French SAS

A board is rarely a founder's instinct; it arrives with the cap table. Three patterns drive it.

A priced round with institutional investors. Venture and private-equity funds negotiate a board seat as a term-sheet standard: structural visibility, information rights, and a vote on reserved matters. The bylaws install the body and the nominee mechanics; the pacte reinforces the designation right and adds reporting cadence and removal protections.

A corporate joint venture. Two or more parents structuring a French vehicle put their joint decision-making in a collegial body: X members from parent A, Y from parent B, sometimes independents, with quorum and majority rules per decision category and a deadlock mechanism. The SAS's freedom fits the JV pattern precisely — equal seats, reserved seats proposed by an identified shareholder group, weighted votes, unanimity on fundamentals are all valid bylaws designs.

A family structure. Multi-branch family companies formalise inter-branch governance through a collegial body with branch representatives and, often, an independent chair.

Where none of those drivers exists, the body is usually overhead. A two-shareholder SAS whose shareholders meet weekly gets the same protection from the collective-decisions mechanism; a single-founder SAS needs none of it. The treatise's design warnings are worth taking seriously: keep the body small for flexibility, split the powers cleanly between president and body to avoid overlap, and remember that gaps or contradictions in the contractual set-up cannot be filled by statute — there is no default text, so an interpretive dispute ends in a unanimous shareholders' accord or in court. And however many authorisations the bylaws stack, they always meet one imperative rule: the president's absolute power toward third parties, which is why the president should stay associated with the general direction.

How to structure a board in the bylaws of a French SAS

The bylaws should fix, at minimum: the number of members or a range; the organ that draws the candidate list or the right of anyone to stand; the designation mode (usually a decision of the shareholders or of a defined group of them); the body's name; the convening periods, with an urgency option; the convening and information modes, or a referral to internal regulations; the body's powers and the split with the president (and CEO); the compensation rules; the term and renewal conditions; the removal rules; and the decision mechanics — quorum, majorities, admitted consultation modes (physical presence, video, written).

Design choices worth deliberate attention:

Role type. Two orientations structure the spectrum: a body that, like an SA board, sets the company's strategic orientations and supervises their implementation — with the president executing day to day — or a body limited to control and prior authorisation of listed decisions. The bylaws can pick either, or select specific missions from the SA toolkit. At the extreme, a president reduced to pure execution of the body's directives remains the one who binds the company externally — and the body directing the company in fact can be treated as a de facto officer, with the liability that carries.

Chair geometry. The SAS president can chair the body — the closest analogue to a PDG structure — or the body can elect its own chair from among its members, leaving the SAS president to the day-to-day role. Where the two are separate, the bylaws must describe the relationship.

Reserved seats and eligibility. Seats can be reserved to candidates proposed by an identified shareholder group (minority protection), a share-ownership condition can be imposed, and eligibility tests — experience, sector expertise, independence — are freely defined. « Independent member » has no statutory definition in the SAS; the bylaws adopt whatever reference the parties choose.

Term. Fixed (two or three years is common), indefinite, or tied to an event — investor seats typically last as long as the investor holds a threshold stake.

Limitation of the president's powers. The bylaws can subject listed sensitive operations to the body's prior authorisation — disposals and contributions of real property or business lines, management leases of the business, security interests and guarantees over company assets, commitments above a per-operation threshold, branch openings, registered-office transfers. The bylaws need not freeze the whole list: it is enough that they provide that the president's powers can be limited and designate the organ and procedure for deciding the limitations.

Do you need a board — and which kind?

Pick your situation and see the structure that usually fits, with the points to settle before drafting.

The composition of a French SAS board: founders, investors, independents, observers

Four member categories structure the negotiated composition.

Founder seats. Named in the bylaws and the pacte; a founder-president can chair the body where the design so provides.

Investor-designated seats. Each seat is typically sustained by an ownership threshold — the designation right lives while the investor holds, say, 5 % — and lapses on dilution or partial exit, with the member resigning or being removed. The bylaws' reserved-seat technique (members chosen among candidates proposed by an identified shareholder group) is the SAS-native way to write it.

Independent seats. Designated by an agreed process, with an independence test the bylaws define — no material relationship with the company or its principal shareholders being the usual formula.

Observer seats (censeurs). An observer attends, receives the members' information, and does not vote. The role gives a smaller investor visibility without member exposure — and, holding no power to direct or bind, an observer is not declared to the registry.

A typical Series A composition: two founder seats, one investor seat, one independent, one observer — with the registered members on the Kbis and the observer off it. Each later round renegotiates the map, by bylaws amendment and pacte update in parallel.

Legal-entity members. A company can sit on the body, acting through its representative — the standard route for funds, which appoint their management company with the deal partner as representative, so that personnel changes stay internal. The liability pass-through logic applicable to corporate officers should be kept in view when the body holds direction powers.

The powers of a French SAS board: reserved matters, oversight, vetoes

The board's principal substantive function in an investor-grade SAS is the approval of reserved matters — decisions the executive cannot take without the body's prior consent. Common categories: material acquisitions and disposals above value thresholds, capital expenditure above thresholds, indebtedness and guarantees, related-party transactions, senior hires, auditor changes, material litigation and settlements, entry into or exit from a business line, distributions, budget amendments, and equity grants. Each matter carries its approval mechanism — simple majority, qualified majority, unanimity, or a named member's veto.

The external limit must be understood at the design stage: the reserved-matters list binds internally only. A president who signs without the required approval breaches the bylaws — grounds for liability and removal — but the act binds the company toward third parties, the president's external power being absolute (C. com. Art. L 227-6). The list is a governance tool, not a shield against counterparties.

Beyond gating decisions, the bylaws can give the body executive-oversight functions: appointing and removing the CEO (and even the president, where the bylaws so allocate), setting executive remuneration — a special committee is sometimes invested with exactly that — approving budgets, reviewing the financial position on a set cadence, and drawing up documents such as the annual accounts or the management report. Allocation matters for liability: where the bylaws entrust the annual report or the accounts to the collegial body rather than the president, it is the body's members who answer for the content.

A supervisory-only configuration separates oversight from management: the body monitors, reviews and reports to the shareholders, while the president (with or without a CEO) manages. The design is used by larger companies and JVs — with a warning from the case law: members of a « supervisory » committee whose role extended to authorising operations and commitments above €15,000 were held to be officers of the company, with officer liability (CA Paris, 23 February 2016, n° 14/24308). The label does not control; the powers do.

Specialised committees — audit, remuneration, investment — can assist the president or the main body, prepare decisions, or hold real decision power (naming directors, fixing executive pay). In groups, transversal committees deciding for several subsidiaries should measure the de facto officer exposure that comes with deciding in fact.

Precision is the drafting virtue: value thresholds, named categories, clear approval mechanics. A vague list invites the executive to navigate around it — and leaves the dispute to a regime with no statutory safety net.

Board meetings and decision-making in a French SAS

The mechanics are what the bylaws (or the internal regulations they authorise) provide.

Convening. Who convenes (the chair, the president, any member, or members above a threshold), with what notice — and an urgency route with no notice period, which drafting practice recommends including.

Form. Physical presence, video, other telecommunication, written consultation — the bylaws choose the admitted modes and can delegate the details to internal regulations. Most investor-grade companies admit all forms.

Quorum and majorities. Freely set — a majority of members, two-thirds, or a composition test (at least one founder member and one investor member present). Majorities can differ per decision category, and a named member's affirmative vote can be required on listed matters (the veto technique). A chair's casting vote is a valid tie-breaker; two-partner JVs choose between it, unanimity, and an escalation mechanism.

Minutes. For evidence, a secretarial follow-up is necessary: minutes or reports, signed by the persons the bylaws designate, archived per the bylaws or annex documents. The minutes are what supports the executive's signature on a reserved-matter act.

Absent members and conflicts. The bylaws can admit written votes on agenda items from members unable to attend, and should say how a conflicted member is treated — excluded from discussion and vote, the conflict minuted. Remember the nullity ceiling: breach of these designed rules exposes to liability and removal, but a deliberation is annulled only for violation of an imperative legal provision (Cass. com. 18 May 2010, n° 09-14855; regime reformed by Ord. 2025-229 from 1 October 2025).

Board members' compensation in a French SAS

The bylaws fix the compensation rules — the deciding organ, the mode (fixed annual amount, per-meeting fees, indemnities, or nothing). The patterns are stable: founder-members who are also executives are paid through the executive role, with no separate member fee at the early stage; investor-designated members typically waive fees, the fund being remunerated elsewhere; independents receive a fixed annual amount calibrated to stage and time commitment.

On tax, attendance-style remuneration of the former jetons de présence type — where the bylaws provide for it — is, on the prevailing analysis, taxed in the recipient's hands as investment income rather than salary — without the 40 % dividend allowance where the progressive scale is elected; and a member who is not also an executive officer does not take the assimilé salarié regime through the seat. Fees paid for occasional non-salaried work are taxed as non-commercial profits. Cross-border members add a treaty layer — worth running before the appointment closes, with the company's accountants on the company-side treatment.

Board members' liability in a French SAS

Liability follows powers — the treatise's phrase is that a transfer of power carries a transfer of responsibility. Four planes:

Toward the company. Members answer for legal violations, bylaws violations and management fault within their allocated missions. Where the bylaws entrust the body with the accounts or the annual report, its members carry the exposure for them — and management fault can be found even without any intent to harm.

Toward third parties. Personal liability requires a fault separable from the functions — intentional and of particular gravity — a threshold that applies to supervisory-body members as it does to executives (Cass. com. 4 November 2014, n° 13-20158). What de facto direction changes is the exposure to the company-side and insolvency-side actions, not the separable-fault screen.

In insolvency. Where judicial liquidation reveals an asset shortfall, de jure and de facto officers alike can be ordered to bear it in case of contributory management fault (C. com. Art. L 651-2) — and members of a « supervisory » committee that authorised operations and commitments above €15,000 have been held to be officers of the company (CA Paris, 23 February 2016, n° 14/24308), bringing them within officer-grade exposure. Simple negligence is excluded.

Criminal. Members who knowingly participate in misuse of corporate assets, untrue accounts or comparable offences answer on complicity or perpetration principles, like executives.

Insurance and structuring. Investor-grade companies carry D&O insurance paid by the company; intentional fault stays uninsurable — a director's bad-faith conduct is incompatible with the insurable hazard (Cass. 2e civ. 14 June 2012, n° 11-17367). Funds' preference for a legal-entity seat adds a corporate layer between the individual and the exposure — a real but not absolute protection, since conduct-based grounds can reach the individuals behind the entity.

Advisory, deciding or supervising — what does your body's design imply?

Pick the role your collegial body actually plays and see the registration, liability and drafting consequences.

Frequently asked questions about boards in a French SAS

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 right governance structure for a French SAS depends on the company's activity, the investor profile, and the shareholders' specific situation. Always seek qualified legal advice before installing or amending a board structure in a French company.