I CORPORATE LAW I Analysis of Ordinance No. 2025-229 of March 12, 2025, reforming the rules governing nullity in company law.

Introduction

Ordinance No. 2025-229 of March 12, 2025, which came into force on October 1, 2025, has significantly reformed the regime governing nullities in company law by clarifying the grounds for nullity and harmonizing the general and special legal frameworks.

In particular, it has put an end to the coexistence of general company law provisions under the Civil Code and those applicable to commercial companies under the Commercial Code. The rules governing nullity are now unified under Articles 1844-10 et seq. of the Civil Code.

Nullity of Corporate Decisions: Scope

The ordinance replaces the notion of “acts or deliberations of the company” with the concept of a “corporate decision”.

This narrower concept excludes:

• Contracts entered into with third parties;
• Opinions or statements issued by non-decision-making collective bodies.

The notion of a “corporate decision” is therefore limited to internal decision-making acts carried out by company officers and to shareholders’ resolutions.

Nullity of Corporate Decisions: Accepted Grounds

Following the reform, the nullity of corporate decisions may only arise from:

• A breach of a mandatory provision of company law, with the exception of the last paragraph of Article 1833 of the Civil Code; or
• One of the general grounds for nullity applicable to contracts (lack of consent, incapacity, unlawful purpose, etc.).

Prior to the reform, resolutions could only be declared void in the event of a breach of certain specifically listed legal provisions. The concept of a “mandatory provision of company law” is now broader.

Such mandatory provisions may derive from specific bodies of law not necessarily codified in the Civil Code or the Commercial Code, provided that they lay down rules applicable to companies.

Nullity of Corporate Decisions: Excluded Grounds

The reform excludes the following grounds for nullity from the general regime:

• Breach of the company’s corporate interest (as provided in the last paragraph of Article 1833 of the Civil Code);
• Breach of the articles of association, unless otherwise provided by law.

Decisions Adopted by an Irregularly Appointed Body

When a decision is declared void, a key risk lies in the potential cascading effect on subsequent decisions adopted on the basis of the initial invalid decision.

However, the reform has limited such risks in cases where a decision is adopted by an irregularly appointed corporate body.

Under new Article 1844-15-1, the nullity of the appointment or the irregular continuation in office of a corporate body (or one of its members) no longer entails the nullity of the decisions adopted by that body.

A distinction must therefore be made between the initial act of appointment (which may be annulled) and the decisions adopted by the relevant body, thereby enhancing legal certainty for corporate decisions.

Specific Case of SAS: Statutory Nullity Clauses

The principle introduced by the reform is straightforward: a breach of the articles of association does not, in itself, constitute a ground for nullity of corporate decisions, unless otherwise provided by law.

This is precisely the case under new Article L227-20-1 of the Commercial Code, which allows the articles of association of a simplified joint-stock company (SAS) to provide for the nullity of decisions adopted in breach of their provisions.

In the absence of an express nullity clause, a breach of the rules governing the adoption of corporate decisions does not constitute a ground for nullity (except where general contract law grounds apply).

Specific Case of SAS: Implications for Shareholders and Directors

The SAS is characterized by a high degree of contractual freedom. The articles of association determine in particular:

• The decisions to be taken collectively by the shareholders;
• The composition and powers of the governing bodies;
• The procedures for adopting decisions (consultation methods, majority rules, quorum, notice requirements, etc.).

Going forward, shareholders and directors will need to clearly identify and formalize the decision-making rules whose breach may be sanctioned by nullity.

Corporate Decisions Affected by a Ground for Nullity: A Non-Automatic Sanction

The ordinance does not merely define the grounds for nullity; it also aims to limit its application.

Nullity is no longer conceived as an automatic sanction, but rather as an exceptional and proportionate remedy.

Judges now play a central role, having broad discretion both in deciding whether to declare a decision void and in determining the consequences of such nullity.