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L'autonomisation de la SAS : Réflexion sur la fonction du modèle en droit des sociétés

Abstract : The concept of “model” has never been defined in French company law. The legislator does not use this notion. Neither does the jurisprudence. Nevertheless, according to academic studies, the word “model” implies two cumulative criteria: the existence of a reference and the imitation of this reference. From this point of view, the idea of “model” does exist in company law, especially when it comes to the connection that can be established between two types of companies. This study aims at applying the concept of “model” to the French Société par action simplifiée (SAS). At first sight, the legal regime of the SAS led to doubt. Indeed, while building the SAS legal regime, the legislator used the method of “legislation by reference”. This means that the SAS legal regime explicitly refers to the SA legal regime. Hence, the latter has expressly served as a model for the SAS. The link between those two legal regimes currently raises several issues for the SAS since the latter was originally conceived as a specific company, separate from the other types of companies and characterized by a unique degree of flexibility. In other words, whereas the SAS has indisputable assets that lie within its flexibility and could, therefore, be a reference for other types of companies, the connection between the SA and the SAS legal regimes prevents, for now, the latter from asserting itself as a model. There is a solution to this problem: legally disconnecting the SA and SAS regimes. The autonomy of the SAS legal regime is, according to us, the core condition that will allow the SAS to assert itself as a model, within the French legal system as well as beyond national borders.
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Houda Alhoussari. L'autonomisation de la SAS : Réflexion sur la fonction du modèle en droit des sociétés. Droit. Université de Rennes I, 2019. Français. ⟨tel-02865441⟩

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