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This note gives an outline of the differences/advantages/disadvantages of the SAS and SARL private limited companies. It is not intended to be used as legal advice, which should be taken specifically for each new project, with full up to date information.

Typically, French subsidiaries of many foreign corporations and groups will be SAS or SARL companies. Today the SAS form of company is popular with foreign shareholders.

The French Société Anonyme company (‘SA’) is not covered in this note. It is used for larger concerns and is the required form if the company wishes to be publicly quoted. The SA also requires higher initial capitalisation, a minimum of 7 shareholders and an external auditor.

Executive Summary

The SAS form of company is more flexible in terms of drafting of the articles/bye laws, with more freedom for the shareholders to organise management, transfers of shares, and meetings.

The SAS is frequently used as corporate vehicle for subsidiaries of foreign groups.

The SARL is more suited to individual single shareholders and small businesses. There is much less flexibility in terms of drafting the articles. The shareholders of the SARL company can opt for ‘see through’ tax treatment for the profits of the company. Typically, this is done for family companies, or for sole shareholders, subject to specific conditions in each case.

Incorporation formalities for both types of companies are very similar.

SAS companies always pay French corporation tax on worldwide profits subject to any tax treaty rules. An SARL company will pay corporation tax, unless it is a sole individual shareholder or family company which has opted for income tax. VAT rules are the same for both types of company.

Dividend and capital gains taxation are subject to specific rules. Foreign tax residence of shareholders will involve a review of any relevant double tax treaty.

A/ Corporate objects

French companies have to define a corporate object set out in the articles. The corporate object will be declared to the authorities on incorporation and will determine which collective bargaining agreement will apply to the employees and compulsory insurance rate for accidents at work.

The company cannot act outside its objects. Shareholders have to approve a change in the objects. Management may conduct business outside the objects but will be personally liable, although the company will be liable to third parties in the absence of fraud.

B/ Shareholders and share capital

General overview

Shareholders, capitalisation and types of shares

Both companies may be formed:

– with a single shareholder

-with a low minimum paid up capital (eg 1 Euro).

At least 50% of the initial capital stated in the articles has to be paid up on incorporation. The balance has to be paid up within five years.

Neither the SAS nor the SARL can issue their shares to the public.

Capitalisation

A low minimum capital has two disadvantages :

-may affect business credibility

-if the amount of initial capital does not take account of likely first financial year results, this will involve the company in notifying the loss of more than half the share capital to the companies Registry (public information), and engaging a recapitalisation process within two years.

Types of shares

In SA and SAS companies shares are issued without their names being stated in the bye laws. (the shares are called « actions »). Their names are kept in the company’s share register which is not a public document.

In SARL shareholders names are stated in the bye-laws which can be consulted at the Companies Registry. The bye-laws have to be updated each time there is a change of shareholders. (The shares are called « parts sociales »).

Liability of shareholders and risks on insolvency

In principle, liability of shareholders is limited to the unpaid amount of their shares. The capital invested will be lost in the event of an insolvent liquidation.

However, on an insolvency of the company, shareholders and management can be held liable for the debts in the case of mis-management; and/or failure to file for insolvency as soon as the company was unable to satisfy debts out of immediately available funds.

Specifics of the two types of company

1/ Share transfers

-SAS

The articles can provide for restrictions on the transfer of shares (e.g. shareholder approval or rights of pre-emption); otherwise transfers are unrestricted.

The articles can also forbid transfers for a defined period of up to 10 years.

-SARL

Prior shareholder approval by the majority of the shareholders for share transfers is compulsory.

The articles can provide for a qualified majority for share transfers (e.g. 75%).

2/ Shareholder rights, meetings and majorities

General

SAS and SARL companies only have to hold one meeting in the presence of the shareholders each year to approve the accounts.

Other shareholder decisions can be taken by written consultation.

Failure to comply with rules on notice to shareholders in both types of company will invalidate decisions taken at a general meeting.

SAS

The company’s articles (bye-laws) can be drafted with more flexibility than in the SARL, notably for voting majorities.

In the SAS general meetings can be called on shorter notice than in the SARL; and procedure for giving notice of meetings is more flexible in the SAS.

SARL

Bye-laws have to comply with rules on shareholder rights and majorities as set out in company legislation. There are more limited derogations allowed than for the SAS.

General meetings have to be convened on at least two weeks’ notice.

Rules on procedure for giving notice have changed recently to allow notice by e-mail. However, many SARL companies articles provide for giving notice by registered letter, which means that the articles need to be changed to allow for e-mail notices.

B/  Management

In general, shareholders have greater freedom in the SAS to organise the management structure. For example, in the SAS the President can be a corporate entity, whereas in the SARL the directors must be individuals.

SAS

The shareholders have considerable freedom to organise the management organs of the company in the by-laws. The management powers and duration of appointment are also set out in the by-laws.

The SAS company must have a President (Chair) which can be an individual or a company (French or foreign) with full management powers, represented by an individual.

To facilitate management at a local level, the company can decide to provide for a managing director (‘CEO’), and deputy managing director. It is also possible to create a board (supervisory and/or managing) and executive committees.

SARL

The SARL company can have a single or co-managing director(s) (‘Gérant’ or ‘Co-gérants’) who must be an individual

It is unusual for there to be a board of directors, although it is possible.

C/ Tax & social security contributions

Stamp duty

Share transactions in SAS and SARL companies are subject to stamp duty at different rates.

(rate is higher for transfers of shares in SARL companies).

Dividends

Taxation of dividends will depend on whether the company is subject to corporation tax or not.

In the case of SARL where the shareholders have opted for see through taxation to income tax, all the profits will be subject to income tax in the hands of the shareholders, not corporation tax.

Capital Gains tax (‘CGT’)

Capital gains will be paid by the selling shareholder either at corporation tax rate or income tax rate, depending on which tax rate the company has chosen. There is ‘tapering’ relief, the amount of which depends on the length of holding.

D/ Agreements outside the ordinary course of business

Agreements between an SAS or SARL company and its shareholders which involve terms outside the ordinary course of business, have to be ratified by shareholders at the AGM.

E/ Audit requirements

French SAS companies with a foreign parent company must have an external auditor.

All companies exceeding certain thresholds are required to have an external auditor.

The thresholds are different for SAS and SARL and are linked to turnover, number of employees and balance sheet.

Further enquiries:

For further information please contact Lexcase corporate partners :

Christophe Blum cblum@lexcase.com

Guillaume Pierson gpierson@lexcase.com