The appointment of a statutory auditor, known as a special benefits auditor, is mandatory when a company decides to set up certain operations, although it is not required to appoint a statutory auditor with a permanent assignment within the company. That is the case, for instance, for the distribution of an interim dividend or a capital increase through debt set-off.
In the event of a capital increase through the issue of preference shares, Article L. 228-15 of the French Commercial Code requires the appointment of a special benefits auditor, whose task is to draw up a report describing and assessing these benefits. This report must then be made available to shareholders at the registered office, at least eight days before the date on which they are called upon to decide on the issue of preference shares.
This assignment must be entrusted to an external auditor who has not performed an assignment for the company in the last three years, and who is not currently performing an assignment for the company.
In the case of companies with a single shareholder who is also a director, the usefulness of such a report for informing the shareholder was questioned.
Couldn’t a lighter regime apply to SASU companies, based on a presumption of knowledge of the consequences of the issue for the sole shareholder who took part in negotiating the terms of the issuance?
In its communication no. 23-026 of June 7, 2023, ANSA replied in the negative, pointing out that the law makes no distinction between sole-shareholder and multiple-shareholders companies. The appointment of an ad hoc statutory auditor, and the drafting and filing of an information report, are therefore still required, even if the report is intended for a single shareholder. This is even more necessary when the sole shareholder is not the Chairman of the SASU.
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To secure your operations in compliance with the regulations applicable to statutory auditors, don’t hesitate to contact our corporate team.
Philippe Schmidt
Aude Le Tannou
Sara Buonomo
