The French Supreme Court has recently laid down the principle (Cass. Com., 18 February 2014, no. 12-29.752 (no. 197 FS-PB), Sté Macris v. Sté ITM alimentaire international) that theexercise by a shareholder of his voting right does not mean that his liability can be triggered by third parties, unless it can be proven that he “committed a particularly serious intentional fault that is incompatible with the normal exercise of the prerogatives attached to being a shareholder”. This is the first time the Supreme Court has been explicit in its reasoning on this point, having previously only referred to related notions, such as the “intent to harm” (cf. Cass. com., 13 March 2001; Cass. com., 12 March 2013).
This ruling transposes to shareholders the solution already applied to directors (Cass. Com., 20 May 2003), requiring the existence of a fault separable from that person’s functions in order for third parties to be able to assert a director’s tort liability. Like directors, shareholders are shielded by the corporate veil of the company. This being the case, the shareholder’s liability is not incurred when making a decision at a shareholders’ meeting, unless the fault is incompatible with the “prerogatives attached to being a shareholder”.