Statutory Merger & Contribution Audits

The four statutory missions at a glance

These are statutory missions, not advisory engagements. The expert reports to the shareholders’ meeting and the report is filed with the Greffe du Tribunal de Commerce in the merger or transformation file. The reports are public.

Who appoints the auditor and when the appointment can be skipped

For an ordinary domestic merger of two French companies, the commissaire à la fusion is designated by court order at the request of the company directors (Article L. 236-10), unless the shareholders of every participating entity unanimously decide otherwise. In practice, unanimity is the norm in foreign-owned subsidiaries: the parent group votes a single resolution and the auditor is named directly.

Two well-known exemptions narrow the scope of mandatory appointment:

• Parent-subsidiary merger (Article L. 236-11 Code de commerce): when the absorbing company holds at least 90% of the absorbed company throughout the operation, the merger audit report on the exchange ratio is not required. A simplified merger procedure applies.
• Sister-company merger: similar relief is available where both companies are wholly owned by the same parent and no new shares are issued.

For cross-border mergers within the EU, the Ordonnance n° 2023-393 du 24 mai 2023 — transposing Directive (EU) 2019/2121 — sets a harmonised regime. A French merger auditor is required and additional duties apply, including a creditor-protection report and review of employee information rights.

How the merger audit is conducted in France

The methodology follows NEP 7020 (Norme d’Exercice Professionnel) issued by the CNCC for commissariat à la fusion, and NEP 7010 for commissariat aux apports. Both norms are public and enforceable; the H3F can sanction non-compliance.

A typical French merger audit covers six steps:

1. Engagement acceptance — independence checks against the parties, scope letter, fee proposal (the report is filed publicly; deviations from independence are disqualifying).
2. Review of the draft merger treaty (traité de fusion) and supporting financials, including the latest certified accounts and an updated interim balance sheet where the closing date is more than six months old.
3. Valuation testing — the auditor reviews the methods used to set the exchange ratio (intrinsic value, market multiples, DCF), tests their consistency and triangulates the result. Multiple methods are expected; reliance on a single method is a documented weakness.
4. Verification of the consideration — for contributions-in-kind, the auditor verifies that the value of the contributed asset is not overstated relative to the shares issued in return.
5. Two separate reports issued under the commissaire à la fusion assignment: one on the value of the contributions, one on the fairness of the exchange ratio. They are made available to shareholders at least one month before the merger general meeting.
6. Filing with the Greffe du Tribunal de Commerce and registration in the merger file. The reports become public documents.

In France vs. internationally

The French model is distinctive in that the merger expert is a statutory commissaire aux comptes, not an investment-bank fairness opinion provider. Comparison with peer jurisdictions clarifies what foreign acquirers should expect:

Two practical differences matter for an international group: the French report becomes a public filing with the Greffe, whereas a US fairness opinion is generally private; the French commissaire à la fusion must be independent of all parties to the merger and of the statutory auditors of either entity — a constraint US fairness opinion providers do not face.

Cross-border mergers and the 2023 EU framework

For an EU cross-border merger involving a French entity, the regime set by Ordonnance n° 2023-393 applies. The French merger auditor reviews the draft common terms of merger, the exchange ratio across borders, and the protection extended to creditors, minority shareholders and employees. A certificat préalable à la fusion is issued by the Greffe before the operation can complete in the absorbing-company jurisdiction. The transposition deadline of Directive (EU) 2019/2121 was 31 January 2023; France acted within three months of that date.

Conversions (transformations transfrontalières) and demergers (scissions transfrontalières) follow analogous procedures under the same ordonnance.

Interexco’s practice in French statutory merger and contribution audits

Interexco’s experts-comptables are inscribed on the list of commissaires aux comptes maintained by the CNCC and the firm routinely accepts statutory appointments as:

• Commissaire à la fusion for domestic mergers between French SAs, SAS and SARLs, and for EU cross-border mergers involving a French acquiring or absorbed entity
• Commissaire aux apports for contributions-in-kind to French entities — asset contributions, branch-of-activity contributions (apports partiels d’actif) and share contributions creating French holding structures
• Commissaire à la transformation for SARL-to-SA, SAS-to-SA and SA-to-SAS conversions, and for any conversion of an entity that does not yet have a commissaire aux comptes in office
• Commissaire à la scission for spin-offs of French entities, including PE-driven carve-outs

A typical engagement combines the partner-in-charge in Paris, an audit manager and a valuation reviewer. Reports are issued within statutory deadlines; the engagement letter is documented in accordance with the CNCC’s code of ethics. As an independence safeguard, Interexco does not accept a merger audit mission on a target where the firm is also acting as statutory auditor or as transaction-services adviser — independence is non-negotiable under the H3F framework.

The firm’s track record includes mergers between French operating companies, post-acquisition reorganisations of PE-backed groups, and contribution-in-kind transactions for international groups building a French holding structure. International clients value the firm’s bilingual delivery and ability to coordinate with parent-company auditors in English-speaking jurisdictions, Italy, Spain and Russia.

Typical timeline

For a domestic merger of moderate complexity (two French SAS, no exotic asset class), the merger-audit timetable runs in parallel with the legal documentation:

• Week 1 — engagement letter, independence checks, intake of draft merger treaty and supporting accounts.
• Weeks 2–3 — valuation review, exchange-ratio testing, working papers.
• Week 4 — draft reports circulated to the parties for factual review.
• Weeks 5–6 — final reports issued and filed at the Greffe. Reports must be available to shareholders at least one month before the merger general meeting (Article L. 236-9).

For cross-border mergers, an additional two to four weeks typically accommodate the certificat préalable and creditor-protection notice periods. Complex carve-outs and IP-heavy contributions can extend the schedule further.

Industries served

The firm regularly accepts merger and contribution audit mandates from:

• International groups restructuring their French operating subsidiaries
• Private equity sponsors completing add-on acquisitions and post-deal reorganisations
• Family-owned French SMEs entering succession or holding-company structuring
• Foreign holding companies contributing French assets to a newly-formed société de holding
• Real estate vehicles where a property portfolio is contributed in kind to an SCI or SAS

We work for buy-side and sell-side counsel, in-house legal teams and PE legal counsel.

When you need a French merger auditor and how to choose one

Three practical tests determine whether a commissaire à la fusion (or one of the related statutory experts) is required for your transaction:

1. Form of the transaction — a true merger (fusion) by absorption or by creation of a new company falls under L. 236-10. A share purchase does not. A contribution-in-kind falls under L. 225-8 or L. 223-9.
2. Shareholding structure — if the absorbing entity holds 90% or more of the absorbed entity for the entire duration of the operation, the exchange-ratio report can be waived under L. 236-11.
3. Cross-border element — if any party is established outside France within the EU/EEA, the Ordonnance n° 2023-393 regime applies and additional duties are triggered.

When you choose a merger auditor, three criteria matter: independence — the firm must not be the statutory auditor or the M&A adviser of any party; valuation competence — confirm prior mandates on comparable industries and structures; filing track record — reports must be released within statutory deadlines and survive a Greffe compliance review.

Frequently asked questions

Do I need a commissaire à la fusion for a merger of two French companies? In most cases yes, under Article L. 236-10 of the Code de commerce. The appointment can be waived only if every shareholder of every participating company votes unanimously to that effect, or where the absorbing company has held at least 90% of the absorbed company throughout the operation (Article L. 236-11).

Can the company’s statutory auditor also act as merger auditor? No. The commissaire à la fusion must be independent of all parties to the merger and cannot have any current or recent statutory audit relationship with the absorbing or absorbed companies. The CNCC code of ethics and the H3F independence framework both confirm this rule.

What is the difference between a commissaire aux apports and a commissaire à la fusion? The commissaire aux apports values a contribution-in-kind made to a company (an asset, a branch of activity, shares). The commissaire à la fusion reviews the entire merger — the values transferred and the fairness of the exchange ratio. NEP 7010 governs the first mission, NEP 7020 governs the second.

How is the exchange ratio reviewed? The auditor verifies that the methods used by the parties to set the ratio are appropriate, applied consistently, and that the resulting ratio does not disadvantage one shareholder group relative to another. Multiple valuation methods are expected — intrinsic, market multiples and DCF in particular — and the auditor triangulates the results.

Is a French merger auditor required for an EU cross-border merger? Yes. The Ordonnance n° 2023-393 du 24 mai 2023, transposing Directive (EU) 2019/2121, sets a harmonised regime that requires a French merger auditor for any cross-border merger involving a French entity. Additional reports address creditor protection and employee information rights.

How long does a French merger audit take? Four to six weeks for a straightforward domestic merger between French operating companies. Cross-border mergers add two to four weeks for certificat préalable and creditor-protection notice periods. Complex carve-outs and IP-heavy contributions can extend the schedule further.

Are the merger auditor’s reports public? Yes. The reports are made available to shareholders at least one month before the merger general meeting (Article L. 236-9) and are filed with the Greffe du Tribunal de Commerce in the merger file. They become public documents.

What does a commissaire à la transformation certify? For conversions where the target form requires a higher level of shareholder protection (typically SARL-to-SA or any conversion of an entity that previously had no commissaire aux comptes), the commissaire à la transformation certifies that the net assets are at least equal to the share capital under Article L. 225-244 Code de commerce.

Is Interexco available to act as a French statutory merger auditor? Yes. Interexco’s experts-comptables are inscribed on the list of commissaires aux comptes maintained by the CNCC. The firm accepts appointments as commissaire à la fusion, commissaire aux apports, commissaire à la transformation and commissaire à la scission for domestic and EU cross-border transactions. Independence rules are observed: the firm does not accept a merger audit mandate on a target where it is the statutory auditor or the transaction-services adviser. Engagements are scoped per mandate following an initial conflict and independence check.