Reform of SELs and SPFPLs: towards the establishment of a right of withdrawal in SELs?

Context

A reform of the liberal professions in general and of the SEL and SPFPL in particular is announced: 

• the law in favor of independent professional activity (Law n°2022-172 of February 14, 2022, art. 7) empowered the Government to clarify by ordinance the system of regulated liberal professions to which the health professions belong;
• a draft ordinance "relating to the exercise of regulated liberal professions in a company" was communicated to the professions in March 2022; its publication would be imminent.

This reform, which we are calling for ¹, is welcome. The law of December 31, 1990 ², through the creation of private practice companies (SEL) then financial participation companies for the liberal professions (SPFPL), founded the reorganization of private practice, mainly through concentration. Thirty years of application, interpretations, amendments and rewritings coupled with thirty years of evolution of the liberal professions sector have made this founding text, already complex, almost unintelligible and unsuitable on a certain number of items.

The expected order intends to clarify and modernize. With regard to the project circularized by the government, with regard to the SEL/SPFPL, the result has been partially achieved: if the text improves the current situation on various subjects of unequal importance, it also disappoints on others, returning to liberalism having guided the latest reforms ³.

The treatment of the right of withdrawal, however, falls under the first hypothesis.

Today: no right of withdrawal in SEL

The withdrawal clause is the one that grants the right to a partner, on his sole decision, at any time or according to certain circumstances (deadlines, events, etc.), to withdraw from the capital of the company and thus obtain the reimbursement of its contribution or its equivalent. 

In the state of the law, if this clause is of law in the SCP ⁴, it is excluded in the SELs as judged by the Court of Cassation in a noteworthy judgment, concerning a SELARL of lawyers (the solution being transposable to the SELs of other professions, in particular to the health SELs): “ in the absence of special provisions of the law authorizing it, a partner of a private practice partnership with limited liability of lawyers cannot unilaterally withdraw from the partnership, nor obtain that a court decision authorizes his withdrawal, regardless important content of statutes ». ⁵

The scope of this prohibition is very broad: the absence of the right, statutory or judicial, to withdraw concerns all commercial companies (SAS included) and, consequently, all SELs (and SPFPL). 

In effect :

• despite having a civil purpose, SELs are commercial companies and are governed by the rules governing the latter, subject to the exceptions provided for by law intended to guarantee the preservation of the independence of practicing professional partners;
• the law of December 31, 1990 and, with regard to the SEL of doctors, article R. 4113-19 of the Public Health Code envisage the "cessation of professional activity" within the SEL without linking it to or mention the capital holding of the partner concerned in the SEL. 

Thus, today, the only solution to align cessation of professional activity and exit from the capital of SEL is: 

• either to adopt the variability of the capital (open to SELARL, SELCA and SELAS), the right of withdrawal being mandatory in companies with variable capital; 
• or to resort to alternative mechanisms, legal (redeemable preference shares) or contractual (promise to purchase). 

Tomorrow: the introduction of a right of withdrawal in the SEL/SPFPL?

Article 55 of the draft ordinance provides that " a partner can withdraw from the company, either that he sells his shares, or that the company reimburses him the value of his shares ». 

This text thus intends, by way of derogation from the legal provisions applicable to commercial companies, to introduce a legal basis for the right of withdrawal. This initiative is obviously to be welcomed; it will facilitate the exit from the capital of a professional partner who ceases his activity within the SEL by offering him an exit right, specifically when the articles of association of the SEL (variable capital, redeemable shares) or a shareholders' agreement (promise of purchase) will not have framed the methods of exit of the capital.

However, this provision calls for a triple reservation: 

• The text only targets the "shares" of the partner, suggesting that the right of withdrawal would be limited to SELARLs; the reservation of the right of withdrawal to the SELARL not being based on any justification, it is probably a question of an editorial clumsiness which we must hope will be corrected in the final text of the ordinance. 
• The text makes the right of withdrawal mandatory as in the case of companies with variable capital, without therefore leaving the option to the articles of association to opt or not for the introduction of a right of withdrawal; however, in certain situations, given the consequences attached to the exercise of such a right in SELs that have not opted for depatrimonalisation, an optional right of withdrawal seems more relevant. 
• The text does not specify whether statutory conditions may attach to the exercise of this right of withdrawal (deadline, annual volume, etc.); it is reasonable to think, by analogy with the case law on companies with variable capital, that this will be the case provided that these conditions do not abnormally hinder the effectiveness of the right of withdrawal as it is conceived in an SEL . It should be noted, with regard to companies already incorporated, that the introduction of such conditions in the articles of association should require the unanimity of the partners. 

This analysis will be confirmed on the basis of the final text of the ordinance, the publication of which is expected in the coming weeks.