Everything you need to know about appointing a statutory auditor

Introduction

The statutory auditor (commissaire aux comptes, or CAC) is an external legal auditor of the company, responsible for guaranteeing the reliability and accuracy of financial information. Their appointment may be mandatory or optional, but the appointment procedure remains identical in both cases.

When must a CAC be appointed? How is the appointment carried out? What exactly are their duties? How can they be removed? And what role do they play in modern operations such as the issuance of tokenized securities on blockchain? Equisafe answers all of these questions in this complete guide.

Let us note from the outset: the role of the CAC remains entirely relevant in an increasingly digitalized environment. Whether your securities are recorded in a traditional paper register or tokenized on an EVM blockchain, the statutory audit obligations apply in the same way. Tokenization changes the medium of the security, not the accounting and regulatory framework surrounding it.

Thresholds for mandatory appointment

For public limited companies (sociétés anonymes, SA), the appointment of a statutory auditor is no longer systematically required by law. As with a limited liability company (SARL) or a simplified joint-stock company (SAS), a CAC must be appointed when the company crosses certain thresholds. These thresholds were harmonized across the various corporate forms by the PACTE law of 22 May 2019.

A SAS that exceeds two of the three following thresholds is required to appoint a statutory auditor:

• a total balance sheet above 4 million euros
• pre-tax turnover above 8 million euros
• a headcount of more than 50 employees

The notion of a group of companies must also be kept in mind: a company that controls other entities (a parent company) may be required to appoint a CAC as soon as the consolidated whole exceeds the thresholds, even if the company considered in isolation does not reach them. This is a subtlety frequently overlooked by the directors of holding companies and investment structures.

Warning: a director who fails in their obligation to appoint a statutory auditor faces a fine of up to 30,000 euros and up to 2 years of imprisonment. Compliance with this obligation is therefore not a mere administrative formality, but a full compliance requirement in its own right.

Mandatory ad hoc intervention

The PACTE law also makes the intervention of a statutory auditor mandatory, where applicable an ad hoc statutory auditor (commissaire aux comptes ad hoc), including for companies that are not required to appoint one on a permanent basis. This ad hoc intervention is required in particular in the following cases:

• capital increases with the cancellation of the preferential subscription right in favor of named persons or categories of persons
• the paying-up of capital increases by offsetting of a debt claim
• the setting of the price of stock options by the management bodies
• the free allotment of shares
• the company's repurchase of its own shares for certain purposes provided for by law

The intervention of a CAC is thus mandatory during an issuance of BSA (share subscription warrants) or BSPCE (founders' share warrants) for joint-stock companies (notably SAS), even if they do not cross the general thresholds.

This point is essential for startups and SMEs structuring their capital. At Equisafe, we frequently support warrant and incentive-instrument issuance operations directly on the platform: the security is issued and recorded in a tokenized register on an EVM chain, while scrupulously respecting the requirement for CAC intervention where it applies. Tokenization provides native traceability and time-stamping that precisely facilitate the auditor's verification work.

Optional appointment

When the thresholds are not met and the contemplated operation does not require the ad hoc appointment of a CAC, it remains possible to proceed with a voluntary appointment.

The partners of a SAS, SA and SCA may decide to voluntarily appoint a statutory auditor at an ordinary general meeting. In addition:

• partners representing at least one third of the capital may request the appointment of a CAC
• minority shareholders representing at least 10% of the share capital may request the appointment of a CAC by court decision

The voluntary use of a CAC is not insignificant from a strategic standpoint. For a company that is raising funds, preparing an external growth operation, or wishing to reassure institutional investors, the presence of a legal auditor constitutes a guarantee of transparency and credibility. This logic of trust echoes the philosophy of Equisafe: combining the rigor of traditional compliance with the transparency offered by blockchain.

How to appoint the CAC?

The appointment of the CAC (and, where applicable, of a deputy) may take place as early as the incorporation of the company: they are then appointed directly in the articles of association. It is the partners who choose the CAC from among the professionals registered on the list available at the registry of the commercial court (greffe du tribunal de commerce). The CAC must then formally accept their mandate via a letter of acceptance.

When the appointment occurs during the company's existence, an appointment file must be assembled, comprising:

• the minutes of the general meeting carrying out the appointment
• the duly completed M3 form
• the publication of a notice of amendment in a legal announcements journal (journal d'annonces légales, JAL)

The file is submitted to the single window for business formalities (guichet unique des formalités des entreprises), which forwards it to the registry of the commercial court. The cost of the formality is around 190 euros. The company's Kbis extract is then updated to mention the appointment of the CAC, making this information enforceable against third parties.

Good to know: the duration, the coordination of meetings and the updating of the capital are often the most time-consuming aspects of an operation. Equisafe digitalizes these steps by automating the convening, the holding of meetings and the management of the share transfer register, which considerably reduces the administrative friction surrounding the company's corporate life.

What is the function of a CAC?

The CAC is an external party to the company, appointed in principle for six financial years. They may then be reappointed or replaced. Their general mission consists of verifying the accuracy and conformity of the company's financial data with regard to the accounting standards in force.

Their duties, defined by the engagement letter, notably include:

• Certification of the annual accounts (balance sheet, income statement and notes): they issue an opinion on the regularity and accuracy of the accounts. The CAC may certify without reservation, certify with reservations, or refuse to certify.
• A duty to inform: they communicate the results of their checks to the directors and partners through annual reports. They must alert the Public Prosecutor (Procureur de la République) in the event of fraud or an offense observed in the course of their mission.
• A duty to warn in the event of company difficulties: they inform management and may trigger the warning procedure with the commercial court.
• Intervention during capital operations: capital increase, contribution in kind (in the capacity of contribution auditor, commissaire aux apports), transformation of the company, or the payment of dividends in shares, for which they draft a report concerning notably the equality between partners.
• The attestation of interim accounts before a loan application, or the carrying out of an acquisition audit prior to a transaction.

Warning: the CAC must never interfere in the management and decisions of the company. Their role is to control, not to direct.

The statutory auditor is moreover bound by professional secrecy and observes a strict code of ethics as well as strict professional standards. CACs are subject to a best-efforts obligation. They nevertheless incur civil liability (covered by professional insurance) for faults and negligence committed in the exercise of their mission. Finally, they benefit from protection when they report criminal acts, but incur criminal liability if they fail to report such acts.

CAC and tokenized securities: a natural complementarity

The arrival of tokenization does not call into question the role of the CAC, quite the contrary. When financial securities are recorded on an EVM blockchain via an infrastructure such as Equisafe's, each movement of a security is time-stamped, immutable and auditable in real time. The tokenized register becomes a single, tamper-proof source of truth, which simplifies the CAC's reconciliation and verification work. Compliance with the requirements of the AMF (the French financial markets authority) and with the European MiCA framework is integrated at the heart of the platform, offering the auditor a control environment of an institutional level.

The removal of the statutory auditor

It is possible to remove a CAC before the end of their mandate, but under strictly framed conditions. Partners representing at least 5% of the share capital may bring a legal action to request this removal.

The grounds for removal remain restrictive and rare in practice: examples include intent to harm or fraudulent maneuvers. The CAC may also resign, but only in particular situations such as retirement, the definitive cessation of activity, or illness. Resignation cannot serve to escape a mission that has become uncomfortable, on pain of engaging the professional's liability.

In the event of departure, the deputy statutory auditor takes over. If this replacement cannot occur, a new CAC must be appointed following the same procedure as the initial appointment.

Closing note

Equisafe collaborates with a statutory auditor whenever their intervention is necessary for the completion of an operation: capital increase, issuance of BSA or BSPCE, or any other operation subject to statutory audit.

By combining the tokenization of securities on an EVM blockchain, native compliance with the requirements of the AMF and the MiCA regulation, and institutional-grade security, Equisafe offers issuers a framework where the rigor of statutory audit and technological innovation reinforce one another. Our objective: to enable you to structure and manage your capital with complete peace of mind, in strict compliance with the regulatory framework.