- Preferential subscription rights (PSR, droit préférentiel de souscription or DPS) give each shareholder priority to subscribe for new shares. Only the general meeting can waive them (Art. L.225-135 French Commercial Code).
- If the increase is reserved to named persons or to categories of persons, a statutory auditor must issue a special report, even in an SAS that has none (Art. L.225-138, II).
- Typical cases: entry of an investor, BSPCE, BSA, preference shares, a capital increase reserved to employees.
- Named beneficiaries do not vote, and the issue must be completed within 18 months.
- Report signed within 48 hours of receiving the complete file; fees from €380 excl. VAT.
A funding round is signed subject to conditions, the investor is waiting for closing, the lawyer has drafted the resolutions: what is often missing is the statutory auditor's report on the waiver of preferential subscription rights. The report is short, but it is required and the validity of the decision depends on it. Here is how to obtain it on time.
When is this report mandatory?
The principle: a report by the statutory auditor, if there is one
Article L.225-135 of the French Commercial Code allows the general meeting deciding a share capital increase to waive preferential subscription rights for all or part of the issue. It decides on the basis of the report of the board of directors or the president and that of the statutory auditor (commissaire aux comptes), if there is one. These rules apply to the SAS (simplified joint-stock company) by cross-reference in Article L.227-1.
The reserved increase: a statutory auditor is always required
In SAS practice, the waiver almost always benefits specific persons. Article L.225-138 governs this case:
- the increase may be reserved to one or more named persons or to categories of persons meeting specified criteria;
- the issue price, or the method for setting it, is determined by the general meeting on the basis of the statutory auditor's special report (Art. L.225-138, II);
- where the company has no statutory auditor, it appoints one for this purpose to issue this report;
- named persons do not take part in the vote; the quorum and majority are calculated without their shares (Art. L.225-138, I);
- the issue must be completed within eighteen months (Art. L.225-138, III).
The situations concerned are common: entry of an investor, issue of BSPCE (French founders' warrants) or BSA (share subscription warrants) to employees, managers or advisers (Art. L.228-91 et seq.; Art. 163 bis G of the French General Tax Code (CGI) for BSPCE), issue of preference shares to named beneficiaries (see our guide on the special benefits auditor), and capital increases reserved to employees.
Delegation to the board or the president
The general meeting may also delegate its authority. Where the waiver targets a category of persons, it may entrust the board of directors, or the body designated by the SAS articles of association, with choosing the beneficiaries within that category and the number of securities granted to each. Management then prepares, for the next ordinary general meeting, a supplementary report describing the final terms of the transaction, which the statutory auditor certifies (Art. L.225-138, I). This technique suits BSPCE plans spread over time: it avoids convening the general meeting for each grant, but it extends the auditor's engagement until the delegation is used.
When the report is not required
- The increase is open to all shareholders, with preferential subscription rights maintained.
- Shareholders individually waive their rights (Art. L.225-132): the general meeting then does not vote a disapplication. This route is ill-suited to companies with many shareholders, and its implementation should be confirmed by your lawyer.
- The company already has a statutory auditor: that auditor issues the report, not an outside auditor.
What the statutory auditor checks
The statutory auditor carries out its work under the professional standards of the CNCC (French national institute of statutory auditors). Its report covers in particular:
- the reasons for the proposed waiver set out in the report of the board or the president;
- the choice of the components used to calculate the issue price and its amount;
- the fair presentation of the financial information taken from the accounts and included in management's report;
- the effect of the issue on the position of security holders, assessed in particular with reference to equity.
If management's report omits required information, the auditor says so and may be unable to give an opinion on the waiver. The content of the reports is set out in Articles R.225-113 et seq. of the French Commercial Code: a complete management report noticeably speeds up the engagement. Where subscriptions are paid up by set-off against debts, a separate certificate is also needed.
The engagement, step by step
- Quote: written reply within 24 working hours.
- Engagement letter and confirmation of our independence.
- Appointment of the auditor by the shareholders, in an SAS that has none.
- Documents: president's report, draft resolutions, financial statements, price calculation.
- Procedures: issue price, financial information, effect on equity.
- Signed report within 48 hours of receiving the complete file.
- Made available to shareholders before the general meeting.
- General meeting, subscription and payment, then formalities through the INPI one-stop formalities portal.
Timeline and legal deadlines
| Step | Deadline | Legal basis |
|---|---|---|
| Auditor's report (complete file) | 48 hours | Firm's commitment |
| Reports made available to SA shareholders | Within the 15 days before the general meeting | Art. R.225-89 French Commercial Code |
| Reports made available to SAS shareholders | As set by the articles of association | Art. L.227-9 French Commercial Code |
| Completion of the reserved increase | No later than 18 months after the general meeting or the delegation | Art. L.225-138, III French Commercial Code |
| Delegation for a category: certified supplementary report | Next ordinary general meeting | Art. L.225-138, I French Commercial Code |
Does your closing have a date? The timeline tool works back through each step from the general meeting.
Documents to provide
- Report of the board or the president setting out the reasons for the waiver and the justification of the price.
- Draft resolutions referring to the waiver of preferential subscription rights and naming the beneficiaries.
- Latest annual financial statements and, where relevant, interim accounts.
- Valuation method used: last funding round, term sheet, valuation report.
- Capitalisation table before and after the transaction, on a fully diluted basis.
- Articles of association, shareholders' agreement and BSPCE or BSA plan rules where relevant.
How much does a report on the waiver of preferential subscription rights cost?
Our fees start at €380 excl. VAT. They vary with the type of securities issued (ordinary shares, preference shares, BSPCE, BSA), the number of resolutions and beneficiaries, the complexity of the valuation and the time available. A single general meeting often calls for several reports: we handle them together. Use the pricing simulator or request a quote.
Frequently asked questions
Must an SAS with no statutory auditor appoint one for a capital increase reserved to an investor?
Yes. Where the increase is reserved to named persons or to categories of persons, the issue price is set on the basis of a special report by a statutory auditor (Art. L.225-138, II French Commercial Code, applied to SAS companies by Art. L.227-1). If no statutory auditor is in office, one is appointed for this purpose.
Can the beneficiary of the reserved increase vote on the waiver of preferential subscription rights?
No. The named persons do not take part in the vote, and the quorum and majority are calculated after deducting their shares (Art. L.225-138, I).
Must the waiver of preferential subscription rights appear on the meeting agenda?
Yes. The Cour de cassation annulled reserved capital increase resolutions where the agenda did not mention the waiver of preferential subscription rights (Cass. com., 25 September 2012, no. 11-17.256).
Within what period must the reserved increase be completed?
The issue must be completed within eighteen months of the general meeting that decided it or that granted the delegation (Art. L.225-138, III).
Does an issue of BSPCE or BSA require a statutory auditor's report?
As a rule, yes. These warrants are securities giving access to share capital (Art. L.228-91 et seq.) and are usually granted to named beneficiaries, with preferential subscription rights waived. A statutory auditor's report is then required (Art. L.228-92 and L.225-138).
Registered statutory auditor (CRCC Paris), qualified French chartered accountant. He personally signs the firm's reports.
Sources and legal texts
- Article L.225-138 of the French Commercial Code, reproduced text (Baumann Avocats)
- CMS Francis Lefebvre: Cass. com., 25 September 2012, no. 11-17.256, waiver of PSR and meeting agenda
- Lextenso, Actes et clauses sociétés: appointment of an ad hoc statutory auditor in an SAS (Art. L.225-138, II)
- CNCC: information note NI V, volume 6, issues of securities (May 2025)
Article up to date as at 8 October 2026, for general information only. It does not replace the review of your file by your lawyer or by the firm. Sources are in French.