(Cass. Com. Jan. 15, 2013, no. 12-11.666)
A shareholder in a société civile (civil company) had been authorized by a court to withdraw from it. Absent an amicable agreement with the other shareholders concerning the value of his shares, he had had an expert appointed by a court under Article 1843-4 of the Civil Code.
In his report, the expert’s valuation of the shares was made on the date of the court decision having authorized the withdrawal. The withdrawing shareholder had contested the relevance of that choice. The French Supreme Court (Cour de Cassation) upheld the ruling of the Court of Appeal that had considered that the value of the withdrawing shareholder’s shares should be determined as on the date closest to the date of reimbursement of the value of such securities.
While the French Supreme Court regularly reiterates that an expert appointed under Article 1843-4 of the Civil Code “has full latitude to determine the value of the shares based on the criteria he deems relevant” (Cass. Com, May 4, 2010, no. 08-20693), which allows the expert to disregard any provisions of the by-laws in relation thereto (Cass. Com, Feb. 16, 2010, no. 09-11668), it now requires the expert to position himself as close as possible to the date of reimbursement of the value of such securities when carrying out the valuation.
Pursuant to the terms of this decision, the court considered that the expert had committed a “crude mistake” by valuing the shares on the date of the order that authorized the withdrawal. This decision seems perfectly in line with prior case law from the Supreme Court, since status as a partner is not lost by virtue of a court decision, but on the date of reimbursement of the securities (Cass. Com., June 17, 2008, no. 06-15045 and 07-14965).