Can an interim dividend distribution include retained earnings from previous financial years? In an opinion published in June 2026 (CNCC, EJ 2025-66), the National Association of Statutory Auditors (CNCC) answers in the affirmative. It thus provides important clarification on the amounts that may be included in the calculation of an interim dividend. (see the CNCC’s opinion EJ 2025-66).

This position follows on from a judgement of the Court of Cassation dated 12 February 2025 (No. 23-11.410), which had set out the conditions for the distribution of retained earnings.

1/ A distinction between ordinary dividends and interim dividends

As a reminder, Article L. 232-12 of the Commercial Code distinguishes between two distribution mechanisms.

The first concerns the traditional distribution of dividends. Following the approval of the annual accounts, the general meeting decides on the allocation of profits and the share allocated to shareholders.

The second mechanism allows interim dividends to be paid before the financial statements for the financial year are approved. This distribution requires the preparation of an interim balance sheet certified by an auditor. This balance sheet must show a sufficient profit, calculated in accordance with the conditions laid down by law.

In a judgement of 12 February 2025, the Court of Cassation had clarified the rules applicable to retained earnings. It had ruled that only the general meeting approving the financial statements for the financial year could decide on their distribution. (Cass. com., 12 February 2025, n°23-11.410).

This decision raised questions regarding the possibility of including retained earnings in the calculation of an interim dividend.

2/ The CNCC confirms that retained earnings must be considered

Having been asked to rule on this matter, the CNCC draws a distinction between the two regimes.

In its view, the case law of 12 February 2025 relates solely to ordinary dividend distributions decided based on Article L. 232-12, paragraph 1, of the Commercial Code.

It therefore does not apply to interim dividends, which fall under paragraph 2 of the same article.

However, this provision expressly provides for the inclusion of retained earnings in the determination of the profit allowing for an interim dividend distribution.

The CNCC concludes that retained earnings may be included in the calculation of an interim dividend, subject to compliance with the other legal conditions.

This interpretation is of practical interest to companies wishing to make a distribution prior to the approval of their annual accounts.

The CNCC does, however, impose a key restriction: available reserves cannot be used to fund an interim dividend.

Indeed, unlike retained earnings, these reserves are not included amongst the items that Article L. 232-12, paragraph 2, permits to be taken into account.

3/ A useful clarification for companies

The CNCC’s position removes an uncertainty arising from the case law of February 2025.

It confirms that retained earnings may be included in the calculation of the amount distributable as an interim dividend, without waiting for the financial statements for the current financial year to be approved.

This option remains, however, strictly regulated. Companies must ensure they have an interim balance sheet that is drawn up regularly and certified by an auditor.

They must also distinguish retained earnings from available reserves, the distribution of which is subject to a different regime.

In practice, this clarification offers companies greater flexibility in managing their distributions, whilst emphasizing the importance of complying with legal requirements.

It therefore urges directors and their advisers to pay particular attention to the composition of the sums distributed, to prevent any risk of irregular distribution.

The External Growth/Corporate team is available to answer any questions you may have. Please do not hesitate to contact us.