The question is dangerous, the simplified company by far being the number one company, form some of them with a social and economic weight considerable. A law of 3 January 1994 had entrusted the exclusivity of the monopoly of representation of the SAS to its President. The difficulties raised by the practice have, in 2003, led the legislature to authorize, subject to the plan in the articles, sharing these duties with a Director General, or even a Director General delegate, subject to mention in the trade and companies register.
This relaxation but not closed debate. Were the delegations of authority of the legal representatives for executives of the company possible Should they be published Associate General Manager, power of representation, delegation of authority... the ambiguity of the situations and concepts has created a thorny dispute, leading appellate courts - Versailles and Paris - to recognize the invalidity of the redundancies by someone without delegated authority and in the absence of publication on the extract K Bis. The Court of cassation has wanted to put an end to this spiral.
Likelihood of confusion
On the economic front, the solution was not viable: beyond the dismissal was the risk of condemning the legal representatives to assume all of the current acts of the company. Clearly, was definitively gripper gears for some 140,000 SAS French, both popular for their handling
November 19, 2009 the economic world echoes between 9 relief 2009 worldwide has les décisions de la chambre mixte the decisions of the joint House Such delegation does obey no particular formalism and may result from the same duties of an employee, or even be ratified a posteriori. So that the Court of cassation has a pendulum marked, restricted to the minimum effect the conditions of validity of a delegation of powers, to the articles of the civil Code relating to the mandate.
Is everything handled so far This is not certain. First of all, if the mandate is akin, in his mind, the functional delegation, the recognition of this lineage will be to encourage new litigation, to begin on the nature of the dismissal: provision or administrative act In our view, regardless of its consequences, unquestionably serious human, the dismissal is similar to an act of administration. It is more the use of ex post facto ratification who puzzled in that it will allow the catch-up of possible slippages in dismissal procedures. Worse, the rapprochement between delegation of authority and mandate is a new risk of confusion, through the prism of the criminal law, due to the transfer of criminal responsibility on the delegate, that does not operate the mandate!
Yet, were it not an opportunity to clarify the articulation of the concepts of mandate, functional delegation or delegation of authority in the criminal meaning of the term
Finally, because the delegation may result from the function, the Court repositions the debate in the field of the employment contract. Except to become a real time bomb, the description of the functions of each employee will have to therefore be updated permanently, as the chain of delegation.
The controversy, which could expect the end bounces with a judgment of November 30, 2010, under the terms of which the Court of appeal of Versailles camped more firmly than ever on its position. Latest Jolt or Frank resistance
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