BENIN Law and Practice Contributed by: Nicolin Assogba, D2A SCPA
Other Forms and Companies With State Participation
board. In public enterprises, Law No 2020-20 reserves to the board the adoption of the budget and invest - ment plans, ongoing control of management, and the recruitment and removal of the managing director, whose appointment is nonetheless pronounced in the Council of Ministers. 2.3 Decision-Making Processes The Functioning of the Board The board of directors is convened by its chairperson and validly deliberates only if at least half of its mem- bers are present. Its decisions are taken by a major - ity of the members present or represented, with the chairperson having a casting vote in the event of a tie, unless the articles provide otherwise. Since the reform of the AUSCGIE, the use of videoconferencing has been permitted for most meetings, with the exception of the drawing-up of the accounts. The Conduct of Meetings Meetings are convened within set time limits, togeth - er with an obligation to inform members in advance. Quorum and majority rules differ according to the type of meeting: the ordinary meeting decides by a major - ity of the votes cast, while the extraordinary meeting requires an enhanced two-thirds majority. Members may be represented, and deliberations are recorded in minutes. Day-To-Day Management Executive management exercises its powers individu - ally and on a continuing basis, without deliberative formality, under the control of the board. It remains required to submit to the board, and then to the meet- ing, decisions that exceed its powers or are reserved to them.
The SARL is managed by one or more managers, under the control of the members’ meeting, while the SAS allows broad freedom in its articles, subject to the mandatory appointment of a president. Public enterprises – state-owned companies, whose capi - tal is entirely public, and majority state-participation companies, which are mixed-economy companies – are governed by the AUSCGIE as regards their incor - poration and operation, but their governance is sup - plemented by Law No 2020-20 of 2 September 2020. That special legislation requires, among other things, a smaller board of three to seven members, including a representative of the relevant ministry and a repre - sentative of the ministry responsible for the economy and finance, appointed by decree adopted in the Council of Ministers. 2.2 Types of Decisions Members’ Decisions The allocation of powers follows a clear hierarchy. The extraordinary general meeting alone is competent to amend the articles – increasing or reducing capital, mergers, demergers, transformation, transfer of the registered office or dissolution. The ordinary general meeting approves the annual accounts, decides on the allocation of profit and appoints or removes direc - tors and statutory auditors. Decisions of the Board and Management The board of directors determines the company’s direction, oversees management and draws up the accounts submitted to the meeting. Certain decisions are expressly reserved to it, in particular the authori - sation of agreements between the company and its officers and the authorisation of sureties, guarantees and endorsements given to third parties. Executive management has the broadest powers to act in the company’s name within the corporate purpose and to bind it vis-à-vis third parties. Reserved Decisions This allocation is not indicative: approval of the accounts falls mandatorily to the ordinary meeting, amendment of the articles to the extraordinary meet - ing and the authorisations mentioned above to the
3. Directors and Officers 3.1 Board Structure A One-Tier System
OHADA law adopts a one-tier model of administra - tion: there is no two-tier structure with a manage - ment board and a supervisory board comparable to the German model. The public limited company may be organised under two schemes. Where it has more than three shareholders, it has a board of directors;
31 CHAMBERS.COM
Powered by FlippingBook