France Pacte d’Associés vs Statuts: Which to Choose for SAS?

When founders set up an SAS (Société par Actions Simplifiée) in France, they face a recurring drafting question: should I capture the rules of the relationship in the statuts (the company’s articles), or in a separate pacte d’associés (shareholders’ agreement)? The two documents have different legal natures, different audiences, and different consequences. This article walks through the distinction, the trade-offs, and how to decide what belongs in each.

1. The Two Documents — Legal Nature

1.1 Statuts — the constitutional act

Under Code de commerce art. L.227-2, the statuts of an SAS are mandatory and must be in writing. They form the constitutional act of the company. Specifically:

• Filed at the Guichet Unique (formalites.entreprises.gouv.fr) as part of the registration formalities.
• Public — once registered, anyone can obtain a copy from the greffe du tribunal de commerce or via INPI’s RNE register.
• Binding on every shareholder, including future ones who acquire shares after registration (Code de commerce art. L.227-1; principle of opposability erga omnes).
• Amendable by collective decision of associates as defined in the statuts themselves — typically a supermajority (in SAS, the law leaves the threshold to the bylaws under L.227-9).

Source — Code de commerce art. L.227-1: https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000038610412

1.2 Pacte d’associés — the private contract

The pacte d’associés has no statutory definition in the Code de commerce — it is a contract under Code civil art. 1101, governed by the general law of contract (Code civil arts. 1101 to 1231-7). Its features:

• Private — not filed, not on the public register.
• Binds only the parties who sign it. A future shareholder is not bound unless they execute an “acte d’adhésion” or similar.
• Modifiable only with the consent of all parties, unless the pacte itself provides otherwise.
• Wider in scope than the statuts — can include commercial and personal undertakings that have no place in a constitutional act.

2. The Audience Test — Who Is the Document For?

A useful first cut between statuts and pacte is to ask: who needs to know about this rule?

• Rules that bind the company in dealings with third parties (e.g., who has authority to represent the company, what the company’s purpose is) belong in the statuts.
• Rules that govern the relationship between specific shareholders (e.g., a vesting schedule, a non-compete between founders, an exit waterfall) belong in the pacte.

The reasoning: third parties dealing with the company are entitled to rely on what the public register shows. They cannot reasonably be expected to look at private documents. Conversely, private commercial bargains between shareholders are no business of third parties and should not be on the register.

3. What Typically Goes in Statuts (SAS)

Under L.227-9 of the Code de commerce, the statuts must contain:

• Form of the company (SAS).
• Duration (max 99 years — Code de commerce art. L.210-2).
• Corporate purpose (objet social).
• Registered office (siège social).
• Capital amount and shareholding structure.
• Identity of the président (or another organ, e.g., directeur général, conseil d’administration).
• Rules governing the appointment, replacement, and powers of the président.
• Rules governing collective decisions (associates’ decisions).
• Conditions for transfer of shares — including any agrément clause (L.227-14), inaliénabilité clause (L.227-13), or exclusion clause (L.227-16).
• Rules for the dissolution of the company.

Optional but commonly included in statuts:

• Pre-emption rights on share transfers between shareholders.
• Drag-along / tag-along rights with constitutional binding.
• Reserved-matter approvals (e.g., issuance of new shares requires 75% approval).

4. What Typically Goes in the Pacte d’Associés

The pacte covers commercial and personal terms not suited to the public register:

• Founder vesting — leaving founders forfeit unvested shares.
• Good-leaver / bad-leaver definitions and pricing.
• Restrictive covenants — non-compete, non-solicitation, confidentiality.
• Anti-dilution mechanics (full ratchet, weighted average).
• Liquidation preference — though this can also be in the share class definition in statuts.
• Information rights — periodic financial reporting beyond what the law requires.
• Board observer rights for investors.
• Drag-along thresholds and conditions (when more nuanced than is appropriate for statuts).
• Tag-along rights with detailed mechanics.
• Exit strategy — agreed timing, agreed parties to lead a sale, etc.
• Deadlock resolution mechanism between founders.

5. The Key SAS Advantage — Statutory Freedom

The SAS form is unique in French company law because Code de commerce art. L.227-9 leaves almost all internal governance rules to the statuts. Unlike the SARL, where many internal rules are fixed by the Code, the SAS allows founders to construct internal governance largely from scratch.

This freedom is a double-edged sword:

• Advantage: founders can put far more in the statuts than is possible for a SARL or SA.
• Risk: founders can put commercial deal terms in the statuts, exposing them on the public register.

Best practice for SAS: keep the statuts clean and constitutional; use the pacte for commercial deal terms.

6. Where the Two Documents Conflict

If statuts and pacte conflict, French case law (Cass. com. 7 January 2004, n° 00-11.692) takes the position that the statuts prevail as against the company; but the pacte still binds the signing shareholders inter se as a contractual matter.

Practical effect: the company will follow the statuts. A shareholder in breach of the pacte may be liable to the other signatories in damages, but the company is not bound to set aside an act simply because it conflicted with the pacte.

7. Specific SAS Clauses — Which Document?

8. Statutory Restrictions — What Can’t Be Done

Some specific clauses must be in the statuts to be effective at all:

• Inaliénabilité (lock-up) — Code de commerce art. L.227-13 expressly requires the clause to be in the statuts. A lock-up in a pacte alone is not effective against third parties.
• Agrément (transfer approval) — L.227-14 requires the clause to be in the statuts.
• Exclusion (forced exit) — L.227-16 requires the clause to be in the statuts.

For these three clauses, founders must use the statuts. Even if the pacte adds detail, the statutory backbone must be in the constitutional act.

9. Term of the Pacte

A pacte d’associés is a contract and as such is subject to general contract law. It can be:

• Indefinite — but then either party can terminate it by reasonable notice (Code civil art. 1212);
• For a fixed term — typically 5, 7, or 10 years.

A 10-year pacte aligned with the typical fund life of investors is common practice. Founders should review the pacte every refinancing and update terms to reflect new economics.

10. Common Mistakes — Gyoseishoshi View

• Putting deal terms in the statuts. Liquidation preference, vesting, and anti-dilution can all be drafted into the statuts of an SAS — but doing so puts deal economics on the public register, which most founders prefer to avoid.
• Putting agrément in pacte only. As above, L.227-14 requires the statuts. A pacte-only agrément will fail in any actual transfer dispute.
• No acte d’adhésion mechanism. When new investors come in, the pacte does not automatically extend to them. A clause requiring new shareholders to sign an adhesion act is essential.
• No update mechanism. A pacte drafted at seed stage with founders’ vesting and a simple exit waterfall is rarely fit for purpose at Series A. Build in a review obligation.
• Confusing French and Anglo-American terms. A “shareholders’ agreement” in US/UK practice combines features that French practice splits between statuts (constitutional) and pacte (contractual). Direct translations often misallocate provisions.
• Forgetting Décret 2021-300 e-filing requirements. Statuts must be filed at the Guichet Unique on creation; any amendment must also be filed. The pacte is never filed.

11. The MmowW Scrib🐮 Workflow

Cell #6 (FR Company) walks the user through both documents. The system:

• Generates the statuts in the form prescribed by the Guichet Unique technical guidelines, with mandatory clauses and optional bespoke clauses (agrément, inaliénabilité, exclusion).
• Generates the pacte d’associés as a separate document, with founder vesting, restrictive covenants, and exit clauses templated to the user’s chosen profile.
• Flags any clause the user has placed in the wrong document and offers an automatic move.
• Generates an acte d’adhésion template for use when new shareholders join.

12. The Decision in Two Sentences

If the rule needs to bind the company against third parties, or affects the rights of any future shareholder, it goes in the statuts. If the rule is a private commercial bargain between specific shareholders, it goes in the pacte d’associés.

That binary choice, applied consistently, produces a clean and defensible governance pack.

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Disclaimer

This article provides legal information, not legal advice. MmowW Scrib🐮 is a document preparation service operated by a licensed Gyoseishoshi (行政書士) office in Japan. We are not avocats, notaires, or experts-comptables.

Sources

• Code de commerce art. L.227-1: https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000038610412
• Code de commerce art. L.227-9: https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000005634983
• Code de commerce art. L.227-13 (inaliénabilité): https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000005634987
• Code de commerce art. L.227-14 (agrément): https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000005634988
• Service-public.fr — créer une SAS: https://entreprendre.service-public.fr/vosdroits/F32919