Mergers and restructurings

Merger auditor in France: role, appointment and waiver

Before a merger between joint-stock companies (sociétés par actions) or private limited companies (SARL) is put to a shareholder vote, a merger auditor (commissaire à la fusion) checks that the terms of the share exchange between the companies are fair to all shareholders.

The role of the merger auditor

The merger auditor checks that the relative values attributed to the shares or membership interests of the companies involved in the transaction are relevant and that the proposed exchange ratio is fair. Under article L.236-10 of the French Commercial Code (Code de commerce), the auditor draws up a written report stating the valuation methods used by the companies, their relevance, the values each method produces, the relative weight given to each one, and any particular valuation difficulties encountered.

Court appointment, unless unanimously waived

• The merger auditor or auditors are appointed by court decision, on the joint application of the companies involved in the transaction, and are subject, with regard to each of them, to the incompatibility rules in article L.821-31.
• The shareholders of all the companies involved in the merger may decide unanimously to dispense with a merger auditor and the corresponding report. This decision must be taken before the period allowed for delivering the report begins to run.

The merger auditor's report: content and deadline

The written report required by article L.236-10 states the method or methods followed to determine the proposed exchange ratio, gives a view on whether they are appropriate in the case at hand, mentions the values each method produces, gives an opinion on the relative weight given to them, and describes any particular valuation difficulties. It concludes with an opinion on the relevance of the relative values adopted and on the fairness of the exchange ratio.

As for timing, the report is made available to shareholders at the registered office at least thirty days before the date on which the general meeting is called to vote on the transaction (article R.236-4, as worded by decree no. 2023-430 of 2 June 2023, which applies to transactions whose draft terms have been filed with the commercial court registry (greffe) since 1 July 2023). The auditor must therefore be appointed early enough: depending on how complex the valuations are, the work takes from a few weeks for a simple exchange ratio to several months for a group transaction.

Simplified mergers: waiver at 100% or 90% ownership

• Where the absorbing company continuously holds all the shares representing the capital of the absorbed company from the filing of the draft merger terms until completion of the transaction, neither approval of the merger by the extraordinary general meeting nor the merger auditor's reports are required (article L.236-11). Shareholders of the absorbing company holding at least 5% of the capital may nevertheless ask the court to appoint an agent to call a meeting.
• Where the absorbing company holds at least 90%, but not all, of the capital of the absorbed company, the reports are likewise not required, provided that the minority shareholders of the absorbed company have been offered the buy-out of their shares at a price set under article 1843-4 of the Civil Code, or through a public offer if the shares are listed (article L.236-12).

A practical example: absorbing a 60%-owned subsidiary

A holding company structured as an SAS (simplified joint-stock company) owns 60% of an operating company that it wishes to absorb. Neither the full-ownership waiver (article L.236-11) nor the 90% waiver (article L.236-12) applies: unless the shareholders of both companies unanimously waive it, a merger auditor must be appointed, on the joint application of the two companies. The auditor reviews the valuation methods used by the parties (earnings multiples, revalued net assets, discounted cash flows), checks that they are consistent with the proposed exchange ratio (for example three shares in the absorbing company for two shares in the absorbed company), reports any difficulties encountered (unrecognised intangibles, pending litigation, off-balance-sheet commitments) and delivers the report in time for it to be made available thirty days before each general meeting. Since the transaction includes contributions in kind, the same professional also prepares the report on the value of the contributions required by article L.225-147.

Contributions in kind: how this fits with the contribution auditor

Where the merger includes contributions in kind or special benefits (avantages particuliers), it is the merger auditor (or, if none has been appointed, a contribution auditor (commissaire aux apports) appointed under the conditions of article L.225-8) who prepares the report required by article L.225-147 on those contributions and benefits. One professional can therefore cover the whole transaction.

Strictly controlled independence

In a judgment of 28 May 2026 (no. 25-13.211), the commercial chamber of the Cour de cassation, France's highest court in civil and commercial matters, reiterated how strict the incompatibility rules for these engagements are: a contribution auditor who had previously carried out an accounting engagement (expertise comptable) for the company whose shares were contributed breached the duty of independence, and the resulting nullity extends to the engagement letter itself. This independence requirement, common to merger auditors and contribution auditors, is central to how audit france organises each of its engagements.

Frequently asked questions

Who appoints and pays the merger auditor?

The auditor is appointed by court decision, on the joint application of the companies involved in the transaction. The fees are borne by those companies, which are free to decide how to share the cost between them.

Does waiving the merger auditor also remove the report on contributions?

No. The shareholders' unanimous waiver covers the report on the terms of the merger. Where the transaction includes contributions in kind, the report on their value required by article L.225-147 is still needed: it is then prepared by a contribution auditor appointed for that purpose.

Merger auditor and contribution auditor: are two professionals needed?

Not necessarily: the merger auditor appointed for the transaction also prepares the report on the value of the contributions. One professional then covers everything, which simplifies the timetable and avoids duplicated work.

Our approach at audit france

audit france works on mergers with a report timed to fit the timetable of the draft merger terms and the extraordinary general meeting, in complete independence from the companies party to the transaction. The signing partner remains the single point of contact throughout the engagement.

Why choose audit france

A 100% digital firm dedicated solely to statutory audit, registered with the Haute Autorité de l'Audit (H2A) and a member of the Compagnie Nationale des Commissaires aux Comptes (CNCC) and working across mainland France and the French overseas territories.

This page is a practical guide in English, for information only. It is not legal advice, and only the French texts have legal force. Check the version in force for your own situation.