Merger commissioner: role, missions and fees in 2026

Updated April 2026 - The merger commissioner is an independent third party, appointed by the president of the commercial court or designated by mutual agreement, whose mission is to verify that the exchange ratio retained in a merger is equitable for shareholders of the participating companies. The role is governed by articles L236-10 et seq. of the French Commercial Code. In 2026, the rules have been refined by the transposition of the European directive on cross-border mergers and by recent commercial court case law.

Also see Transformation Commissioner, TUP: Universal Transmission of Assets and Business transfer.

Article L236-10 of the French Commercial Code states that "one or more merger commissioners, appointed by court decision, shall prepare a written report on their own responsibility on the terms of the merger." This report must in particular indicate:

• ▸the valuation methods used to determine the exchange ratio and why they were deemed appropriate to the situation of the companies concerned;
• ▸the values to which each method leads, with the respective weight attributed to each;
• ▸any particular difficulties of valuation encountered, where applicable.

Article L236-22 extends these rules to simplified mergers between parent companies and 100%-owned subsidiaries. Article R236-1 specifies the conditions for judicial appointment of the commissioner.

These two roles are frequently confused, even by practitioners. The distinction is fundamental.

The contribution auditor (commissaire aux apports) intervenes when a company is created or when a capital increase is made through contributions in kind. They verify the value of contributed assets (real estate, business goodwill, equity interests). This role is governed by articles L225-8 and L225-14 for SAs, L223-9 for SARLs. Their conclusion determines whether assets can be recorded as capital.

The merger commissioner, on the other hand, does not verify the absolute value of assets but the consistency of the exchange ratio between the two merging companies. They ensure that shareholders of the absorbed company will receive a number of shares in the absorbing company proportional to the relative value of their rights. The question is one of fairness, not of absolute value.

In some mixed mergers (absorption with capital increase partially remunerated through contributions in kind), both roles may coexist and be performed by two separate professionals or, under certain conditions, by the same commissioner.

Appointment of a merger commissioner is mandatory in the following cases:

• ▸Merger by absorption involving companies whose shares are not all held by the absorbing company (presence of minority shareholders)
• ▸Merger by creation of a new company between two or more independent companies
• ▸Cross-border merger subject to Directive 2017/1132 as amended by Directive 2019/2121

Appointment is optional or waived in the following cases:

• ▸Simplified 100% merger: where the absorbing company holds the entire capital of the absorbed company, no merger commissioner is required (art. L236-11 French Commercial Code)
• ▸Unanimous shareholder waiver: since the PACTE Act of 2019, shareholders of the participating companies may unanimously waive the appointment of a merger commissioner. This waiver must be express, unanimous and documented in the meeting minutes approving the merger project.

Hayot Expertise Advice: unanimous waiver of the merger commissioner is legally valid but carries practical risks. Without an independent report, minority shareholders — present or future (investors, lenders) — may challenge the exchange ratio used. For any transaction involving third-party financiers, the merger commissioner's report remains a credibility document.

The appointment and intervention procedure follows a precise timetable.

Step 1 — Filing the merger plan: the participating companies file the merger plan with the commercial court registry at least 30 days before the date of the approval general meetings (art. L236-6 French Commercial Code). This deadline is reduced to 15 days when all companies are SASs.

Step 2 — Appointment of the commissioner: appointment is made either by court order (joint petition to the president of the commercial court) or by mutual agreement between the participating companies where the law permits. The appointed commissioner must be registered on the statutory auditor list maintained by the H2A.

Step 3 — Access to documents and fieldwork: the commissioner has unlimited access to all information and documents relating to the participating companies. They may be assisted by an independent valuation expert if the nature of the assets (real estate, patents, business goodwill) warrants it.

Step 4 — Drafting and filing the report: the report must be made available to shareholders at least 8 days before the approval general meeting. It is also filed with the commercial court registry.

Step 5 — Approval general meeting: shareholders vote on the merger plan in light of the commissioner's report. The report does not bind shareholders but forms the basis of their informed decision.

To assess the exchange ratio, the merger commissioner analyses the valuation methods used by the companies and their financial advisors. The most commonly used methods in 2026 are:

• ▸Discounted Cash Flow (DCF): the reference method for high-growth companies, particularly relevant for technology SMEs
• ▸Comparable transaction multiples: applicable when recent transactions in the same sector are available (EBITDA multiples, revenue multiples)
• ▸Revalued net asset value (NAV): relevant for holding companies and asset-heavy businesses (real estate, equity investments)
• ▸Yield value: used in mature sectors with stable revenue streams

The merger commissioner does not validate one method over another but ensures that all retained methods form a coherent body of evidence and that the proposed ratio falls within the reasonable range derived from this evidence.

Fees vary according to the complexity of the transaction, the size of the companies and the duration of the work.

For a mid-sized SME (revenue between EUR 5M and EUR 30M, simple balance sheet):

• ▸Simple merger (one absorbing company, one absorbed company, few asset valuation issues): EUR 3,000 to EUR 8,000 excl. VAT
• ▸Moderately complex merger (multi-criteria valuation, significant intangible assets): EUR 8,000 to EUR 20,000 excl. VAT

For a mid-market company (revenue above EUR 50M, multi-entity group):

• ▸The range can reach EUR 30,000 to EUR 80,000 excl. VAT depending on complexity, particularly if specialist sector expertise is required.

These fees should be weighed against the legal and tax risks of the transaction: a poorly established exchange ratio can lead to minority shareholder litigation, tax adjustments, or the loss of the merger's favourable tax treatment.

Beyond the statutory obligation, the merger commissioner's report plays several practical roles in SME merger transactions.

Protection of minority shareholders: in the presence of minority shareholders — family members, financial investors or employee shareholders — the independent report documents that the exchange ratio was established rigorously and without preference.

Credibility with lenders: banks and investment funds involved in financing the transaction (LBO, OBO) treat the merger commissioner's report as a due diligence element. Its absence may generate additional questions or lengthen the financing process.

Anticipation of tax risks: a merger with a contestable exchange ratio may lose the benefit of the preferential tax regime under articles 210 A and 210 B of the French General Tax Code (CGI) — which provides for deferral of capital gains and exemption from contribution duties. The commissioner's report constitutes evidence that the transaction is based on coherent values.

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(Official sources: French Commercial Code articles L236-10, L236-11, L236-22, R236-1; French General Tax Code articles 210 A and 210 B; Entreprendre.Service-Public.fr on mergers and demergers)

When is a merger commissioner mandatory?

A merger commissioner is mandatory for any merger by absorption or creation involving minority shareholders. The requirement can be waived by unanimous shareholder agreement (PACTE Act 2019) or when the absorbing company holds 100% of the absorbed company's capital (art. L236-11 French Commercial Code).

What is the difference between a merger commissioner and a contribution auditor?

A contribution auditor verifies the absolute value of assets contributed in kind during a company creation or capital increase. A merger commissioner verifies the consistency of the exchange ratio between two merging companies — that is, the relative fairness of the transaction for the shareholders of both companies.

How much does a merger commissioner cost for an SME?

Fees range from EUR 3,000 to EUR 20,000 excl. VAT for an SME depending on complexity (number of entities, asset types, valuation methods). This cost should be weighed against the legal and tax risks of a contestable exchange ratio.

Can the merger commissioner be the company's existing statutory auditor?

No. The merger commissioner must be independent of the participating companies. A statutory auditor already acting for one of the companies is in principle excluded. Appointment must be made by court order or by mutual agreement with a professional having no connection with the parties.