In principle, the president of an association can sign a dismissal letter without having to seek the prior authorisation of the board of directors, unless provided otherwise in the articles of association (Cass. Social Chamber, 23 March 2022, n° 20-16.781).
What happens when the articles of association are silent on the question of dismissal (as well as the question of recruitment)? Should it be considered that this authority falls as a matter of principle to the president in his capacity as the head of the company?
With just a few exceptions, articles of association generally state that “the association is administered by the board of directors, which is fully empowered to act in the name of the association” and that “the president is responsible for implementing the board of directors’ decisions and ensuring the smooth operation of the association that he represents before the courts and in all civil matters.”
Does this wording, which says nothing about the power to dismiss or recruit, authorise the president to make decisions on dismissal alone?
The answer is yes, in theory. However, beware! The judges’ findings will be totally different if the articles of association diverge even slightly from this wording.
Recently, Versailles Court of Appeal considered that in light of the articles of association providing that “the board of directors is fully empowered (…), that he represents before the courts and in all civil matters” and that the president “is responsible for implementing the board of directors’ decisions”, this sufficed to strip the president of his power to dismiss (Versailles Court of Appeal, 24 June 2020, n° 16/03872). He must first be delegated authority by the board of administration, failing which the dismissal is devoid of any real and serious cause.
This ruling must prompt us to be cautious, especially since the courts are fond of procedural errors that can prevent a long, drawn-out examination of the merits of the case. When the situation is ambiguous, we recommend either clarifying the wording of the articles of association, or scheduling prior deliberation by the board of directors authorising the dismissal procedure and fully empowering the president to implement their decision.