CIVIL PROCEDURE
Unfair Evidence in Civil Proceedings: Confirmation of the Proportionality Test
Cour de cassation – First Civil Chamber, 4 March 2026, No. 25-17.582, published in the Bulletin
A child was born in Belgium on 18 July 2023. On 23 March 2024, the mother left Belgium with the child for France and refused to return. The father considered both the removal and the failure to return to be wrongful within the meaning of the Hague Convention of 25 October 1980.
On 1 August 2024, the Public Prosecutor attached to the Strasbourg Judicial Court referred the matter to the Family Court seeking the child’s immediate return to Belgium. In the course of the proceedings, the father produced a covert video recording intended (i) to rebut the mother’s allegations of sequestration and (ii) to establish her intention to relocate to Cameroon with the child. The mother sought to have this evidence excluded on the ground that it had been obtained unfairly.
By a judgment dated 1 April 2025, the Colmar Court of Appeal granted the request and excluded the recording, holding that it was partial and unusable.
The father lodged an appeal before the Cour de cassation, arguing that the lower courts had failed to carry out the proportionality review now required in civil matters.
The issue before the Supreme Court was therefore whether a civil court may exclude unfairly obtained evidence without conducting a proportionality assessment where such evidence is, in any event, unusable.
In a decision dated 4 March 2026, the First Civil Chamber dismissed the appeal, relying in particular on Article 6 §1 of the European Convention on Human Rights and Article 9 of the French Code of Civil Procedure. The Court reiterated that unfairness in the obtaining of evidence does not automatically lead to its exclusion. The judge must balance the right to evidence against the competing rights at stake. The admission of unfairly obtained evidence is subject to a twofold requirement: it must be indispensable to the exercise of the right to evidence and the infringement must be strictly proportionate to the aim pursued. Since the recording was partial and unusable, it could not be regarded as indispensable, and the Court of Appeal was therefore correct in excluding it.
Key takeaways
This decision forms part of the line of case law initiated by the Plenary Assembly ruling of 22 December 2023 (No. 20-20.648), which abandoned the principle of the automatic exclusion of unfair evidence in civil proceedings in favour of an in concreto assessment.
The ruling of 4 March 2026 provides a useful clarification: where unfairly obtained evidence is unusable, its lack of indispensability necessarily follows.
Trial courts retain sovereign discretion, subject to the dual requirement of indispensability and strict proportionality laid down by the Supreme Court.
In practice, any party seeking to rely on a covert recording must ensure that it is complete and usable, and must demonstrate that it is indispensable to the defence of its rights. Failing this, the evidence may be excluded without the judge being required to engage in a full proportionality analysis.
BUSINESS LAW
Requirement for Prior Authorisation of an SARL Manager’s Remuneration
Cour de cassation – Commercial Chamber, 11 March 2026, No. 24-15.111, published in the Bulletin
On 6 August 2019, an SARL was incorporated by two shareholders, each holding 50% of the share capital. One of them, appointed as manager, awarded himself substantial remuneration without any prior authorisation, such remuneration having been neither provided for in the articles of association nor approved by a shareholders’ resolution.
On 30 September 2022, the non-managing shareholder brought summary proceedings against the manager, acting on behalf of the company, seeking repayment of the sums received and an injunction preventing further unauthorised payments. The summary judge granted the application. The manager appealed to the Colmar Court of Appeal, which overturned the order on the ground that there was a serious dispute as to the existence of harm. In its view, the manager’s remuneration, having contributed to the company’s development, did not necessarily cause it prejudice. The non-managing shareholder appealed to the Cour de cassation.
The issue before the Court was whether a manager’s remuneration may be determined otherwise than by the articles of association or a shareholders’ decision, thereby precluding any action by the company to recover its loss.
The Cour de cassation answered in the negative and quashed the appeal judgment, relying on Articles L.223-18 and L.223-22 of the French Commercial Code and Article 873 of the Code of Civil Procedure. It held that a manager’s remuneration must be determined either by the articles of association or by a decision of the shareholders’ meeting. Any payment made outside this framework constitutes mismanagement, whether resulting from a unilateral decision by the manager, a tacit agreement or a mere practice. The Court further confirmed that a shareholder may bring a derivative action to seek full compensation for the damage suffered by the company. Finally, it reiterated that a summary judge may order measures to bring an obviously unlawful disturbance to an end or to prevent imminent damage, the existence of a serious dispute on the merits being insufficient to justify refusing such measures.
How can the remuneration of an SARL manager be secured and related disputes avoided?
This decision reaffirms that an SARL manager’s remuneration must be set either by the articles of association or by a formal shareholders’ decision, and cannot be based on internal practice or management tolerance alone. Failing this, the manager’s liability may be incurred, and swift relief in summary proceedings may be granted, as the obligation to repair the company’s loss cannot be regarded as seriously disputable.
In practice, it is essential either to include a clause in the articles of association governing the manager’s remuneration at the time of incorporation, or to have it formally approved by a shareholders’ resolution. Any subsequent change must follow the same procedure, failing which the manager may be exposed to liability claims and urgent interim measures.
COMPANY LAW
Duration of Shareholders’ Agreements in the Absence of an Express Term: Alignment with the Life of the Company
Cour de cassation – Commercial Chamber, 11 March 2026, No. 24-21.896, published in the Bulletin
In 1997, a shareholders’ agreement was entered into within a family group, providing that it would remain in force for as long as the family of the majority shareholder retained control, without stipulating any specific term. Following the death of that shareholder, his heirs succeeded to his rights. In 2017, the minority shareholder was absorbed by Tikehau Capital. The following year, the heirs notified a unilateral termination of the agreement, which Tikehau challenged in court.
The Reims Court of Appeal overturned the first-instance judgment, characterised the agreement as a contract of indefinite duration and upheld its termination. Tikehau appealed to the Cour de cassation, arguing that the agreement, as a complement to the company’s constitutional documents, should be deemed to have been concluded for the duration of the company, thereby excluding any unilateral termination. The heirs relied on the autonomy of the agreement and the absence of a fixed term to support its indefinite nature.
The question before the Cour de cassation was whether a shareholders’ agreement lacking an express term may be unilaterally terminated, or whether its duration must, by default, be aligned with that of the company.
Relying on former Article 1134 and Articles 1835, 1838 and 1844-6 of the French Civil Code, the Cour de cassation quashed the appeal judgment. It established a rebuttable presumption: in the absence of an express term, a shareholders’ agreement is deemed to have been concluded for the remaining duration of the company in which the parties are shareholders. This presumption excludes any unilateral termination and any recourse to an interpretation of the parties’ intention, and may only be overturned by contrary elements, whether intrinsic or extrinsic to the agreement.
What duration should be attributed to a shareholders’ agreement in the absence of an express term?
By aligning the duration of the agreement with that of the company, the Cour de cassation recognises the structural function of shareholders’ agreements in the organisation of corporate groups, viewing them as instruments complementary to the articles of association, which cannot be called into question by the unilateral will of one party merely because the agreement is silent as to its duration.
For practitioners, the implications are significant. Any imprecise or conditional duration clause, such as a reference to the maintenance of family control, will no longer allow for early withdrawal from the agreement. Only an express, clear and unambiguous stipulation will suffice to derogate from the presumption thus established. Failing this, the signatories remain bound for the entire statutory life of the company, regardless of changes in their relationship or in the shareholding structure.
