In the event of a transformation of a company of any form into a joint-stock company, a transformation auditor must assess, under his responsibility, the value of the assets comprising the company’s assets and any special benefits. The auditor’s mission is to ensure that the assets are not overvalued.
The transformation, constituting a change in the articles of association, requires a collective decision by the partners. This decision can have multiple causes: seeking a new type of organization and distribution of powers, adapting to the development of the activity or the economic and financial context, taking fiscal considerations into account, etc.
The mission of the transformation auditor is governed by standards that define the nature of the due diligence to be carried out, the form of the report to be issued, and the deadlines to be met.
It should be noted that the mission of the transformation auditor does not involve any incompatibility with the role of statutory auditor. We can be appointed as the transformation auditor of a company for which we are also the statutory auditor.
Companies subject to the appointment of a transformation commissioner
The principle is that the intervention of a transformation commissioner is required by the Commercial Code when a company transforms into a joint-stock company. The new form of the company can be a simplified joint-stock company (SAS or SASU), a public limited company (SA), or a partnership limited by shares (SCA).
Below is a recap chart of situations requiring the intervention of a Transformation Auditor :
| Former Form | New Form | Transformation Auditor ? |
|---|---|---|
| SARL, EURL | SAS, SASU, SA, SCA | Mandatory |
| SARL | SNS, SCS | Not Mandatory |
| SAS, SASU | SARL, EURL, SNS, SCS | Not Mandatory |
| SAS | SA, SCA | Mandatory |
| SA | SAS, SARL, SCS, SNC | Not Mandatory |
The mission of the transformation commissioner
The objectives of the transformation commissioner’s mission are defined, on the one hand, in Article L. 224-3 of the Commercial Code and, on the other hand, in Article R. 224-3 of the same code.
The transformation auditor is primarily responsible for assessing, under his responsibility, the value of the assets composing the social assets.
Furthermore, he must similarly assess any special benefits if they exist.
Finally, the transformation auditor certifies in his report that the amount of equity is at least equal to the share capital.
The assurance obtained by the transformation commissioner is expressed as:
- in a negative form concerning the assessment of the value of the assets composing the social assets;
- in a positive form concerning the amount of equity in relation to the amount of share capital.
The mission of the transformation auditor is governed by standards that define both the nature of the procedures to be implemented, the format of the report to be issued, and the deadlines to be met.
Appointment of the transformation commissioner
Article L.224-3 of the Commercial Code provides that “When a company of any form that does not have a statutory auditor transforms into a joint-stock company, one or more transformation auditors, responsible for assessing under their responsibility the value of the assets composing the social assets and the special benefits, are appointed, unless there is a unanimous agreement of the partners by court decision at the request of the company officers or one of them.”
When the company has a statutory auditor, the appointment of a transformation commissioner is not mandatory. Indeed, the company’s statutory auditor can undertake the procedures and prepare the report as the transformation auditor.
If the company does not have a statutory auditor, it must appoint one. The company’s shareholders can unanimously appoint the transformation auditeur. In the absence of a unanimous agreement, the company’s managing director submits a request to the president of the commercial court for the appointment of a transformation auditeur.
When the company is a sole shareholder (SASU, EURL), he makes the appointment decision.
Ethical Framework for the transformation commissioner
Article L. 224-3 of the Commercial Code provides that transformation commissioners “are subject to the incompatibilities provided for in Article L. 822-11-3.”
Article L. 822-11-3 of the Commercial Code, originating from Ordinance No. 2016-315, provides that: “The statutory auditor may not take, receive, or hold, directly or indirectly, an interest with the person or entity whose accounts they are responsible for certifying, or with a person who controls or is controlled by it, as defined in I and II of Article L. 233-3.”
The transformation auditor is subject to the same incompatibilities as the statutory auditor. A statutory auditor may act as the transformation auditor for a company they audit.
The expertise of Houdart A&C to act as the transformation commissioners
Houdart Audit & Conseil is the statutory auditor for numerous entities, including some significant groups. Our clients appreciate the agility, responsiveness, and technical expertise demonstrated by our teams and partners.
Have you decided to transform your company into a joint-stock company, and it does not have a statutory auditor? Houdart A&C has the organization and technical expertise to intervene very quickly in this type of mission and can be appointed upon the unanimous request of the shareholders or at the request of the court for your transformation operations.
We commit to doing everything possible to complete our mission within the given deadlines, maintaining a constructive relationship with your advisor who prepared the legal documents, to enable you to quickly complete the formalities for transforming your company.