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Practical information: individual redundancies

If your company is experiencing economic difficulties and you wish to let one of your employees go, we’ll show you how to proceed.

Please note: for a redundancy to be justified, your company will have to justify the economic difficulties listed in the French Labor Code. Not all economic difficulties are grounds for dismissal for economic reasons.

Step1: determining the order of redundancies according to legal or contractual criteria.

Please note: this is a mandatory step. If it is not complied with, you may be fined and ordered to pay damages to the dismissed employee.

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Stage 2: the duty to adapt and reclassify

Prior to any redundancies, the employer must implement all measures to avoid layoffs.

We therefore need to adapt employees to their jobs as much as possible, to enable them to be redeployed to other positions.

Initially, the employee should be offered positions in the same category. If no such position is available, the search should be extended to other jobs, including those that the employee could do after training to adapt to the job. This training must be of short duration.

This obligation applies to all companies, regardless of their size, and to all redundancies, regardless of the number of employees made redundant.

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Step 3: Consultation of the CSE, mandatory only if the dismissal is due to a reorganization of the company or concerns an employee representative.

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Step 4: Invitation to a preliminary interview

The letter convening the employee to a preliminary interview must be sent to the employee by registered letter with acknowledgement of receipt, or by hand-delivered letter with acknowledgement of receipt. It must contain the obligatory information required for this type of letter.

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Step 5: The preliminary interview

The preliminary interview may not take place less than 5 working days after presentation of the letter convening the preliminary interview.

During this interview, the employee should be informed of the reasons for the decision, and given the documents relating to the contrat de sécurisation professionnel. The employee should also be reminded of the possibility of contacting services, in particular the public employment service, which can help him or her make a decision in full knowledge of his or her rights.

Reminder: the employee has 21 calendar days in which to accept or reject the contrat de sécurisation professionnel.

This cooling-off period begins the day after the employer hands over the CSP information document.

This period must be respected in its entirety, even if the employee accepts or refuses the proposal during this period.

The dismissal cannot take effect before the end of this cooling-off period.

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Step 6: Notification of redundancy for economic reasons

The letter of notification of redundancy for economic reasons may be sent to the employee before the end of the cooling-off period.

It should then remind the employee of the date on which the cooling-off period expires, and explain that if he refuses, this letter will serve notice of his dismissal.

Please note: the letter of dismissal can only be sent to the employee after a period of 7 working days for non-managerial staff and 15 working days for managerial staff following the date of the preliminary interview.

This letter must include, among other compulsory details, a statement that the employee has priority of re-employment for a period of one year from the date of termination of the employment contract, and the conditions for implementing this priority.

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Step 7: Notification of dismissal to the authorities

The DREETS must be informed of the redundancy within 8 days of the redundancy letter being sent to the employee. This information must be sent by registered letter with acknowledgement of receipt.

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Step 8: Notice of termination

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The employee may be exempted from the notice period, which may also be waived if he or she has accepted a contrat de sécurisation professionnelle.

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Final stage: termination of the employment contract

The employee receives compensation for the termination of his or her employment contract.

You’ll also need to hand over your end-of-contract documents.

The redundancy procedure is a delicate one to implement, involving a number of important formalities that can call into question the validity of the procedure.

DESRUMAUX AVOCATS is at your disposal to help you set up such a procedure.

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Instructions for employing people with disabilities

As a member of the LES ENTREPRISES S’ENGAGENT community, our firm took part in a morning session on the theme of “LES ENTREPRISES S’ENGAGENT POUR UNE SOCIETE INCLUSIVE ET UN MONDE DURABLE” (COMPANIES COMMITTED TO AN INCLUSIVE SOCIETY AND A SUSTAINABLE WORLD), gaining valuable insights into the hiring process for people with disabilities thanks to our enriching exchanges with the ESAT d’Audenge.

Here’s a concise guide to the subject.

From the MDPH to professional integration :

Each disabled individual is generally registered with the MPDH (Maison départementale des personnes handicapées), which issues them with an RQTH (Reconnaissance de la qualité de Travailleur Handicapé), and the CDAPH (Commission des droits et de l’autonomie des personnes handicapées) then issues them with a notification of ESAT (Etablissement et Service d’Accompagnement par le Travail) orientation.

ESATs play a key role in helping these people enter the world of work. These structures offer a variety of activities, from landscaping and carpentry to cleaning and many other trades, while enabling the people they help to benefit from support, medico-social and psychological accompaniment and work adjustments.

The skills they acquire enable them to integrate into the mainstream workplace

ESAT Audenge: a concrete example:

The ESAT d’Audenge offers its residents personalized support on social issues and access to healthcare, enabling them to acquire autonomy in their daily lives, particularly in terms of transport, housing, access to rights and citizenship, and adapted sports.

The ESAT d’Audenge, for example, has several areas of activity enabling it to offer disabled people a range of different trades and services to its customers, such as landscaping, laundry, carpentry, cleaning of premises, firewood, industrial subcontracting, support towards and/or within employment…

The Integration Pathway :

  • ESAT workshop :

Once integrated into the ESAT, the person discovers a trade that suits him or her. This can be done either within the ESAT or with an external company.

Support at work enables the person to evolve in a professional environment that meets his or her needs, through adaptations and compensations at the workstation. The skills acquired may be cross-disciplinary, making them transferable to other positions. Individuals can gain access to the ordinary working environment through a variety of mechanisms, such as :

– Outsourced team: a team and a mentor go out to the company to carry out production-related tasks.

– Discovery internship: This internship enables the student to discover a profession or a company over a period of up to 2 months.

  • Availability:

After an internship, the person can be placed with a company. The employee remains on the ESAT’s payroll, and the hours worked are billed back to the company. Invoicing is based on an hourly rate indexed to the current minimum wage. This contractual period, which can last up to 2 years (= renewable once with the authorization of the MDPH), is an opportunity for the person and the company to build a relationship of trust.

  • Integration into the mainstream through a common law contract:

A fixed-term or open-ended contract may follow the period of secondment. It will be accompanied by a support agreement.

Importance of the Support Agreement :

  • It reassures both parties: the employer knows he has the support of the ESAT, and the employee feels supported in his integration process.

This is a standby agreement (= 1 year, renewable 2 times).

  • During this period, the employee can exercise his or her right to return to the ESAT if he or she does not feel ready to continue. Similarly, the company can request a breach of contract.

A legal obligation not to be forgotten :

Let’s not forget: all employers with 20 or more employees are required by law to hire 6% of their total workforce for the disabled. In addition to meeting this obligation, this is a great opportunity to diversify your teams and contribute to a more inclusive society.

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News: New rules for very small businesses’ professional elections

The CERFA model for the procès-verbal de carence has just been modified, and this change will be of great interest to companies with between 11 and 20 employees.

Previous regulations

Until now, in these companies, it was sufficient to inform staff of the organization of professional elections.

If no employee put himself forward as a candidate within 30 days, the VSE could draw up a “procès-verbal de carence” (minutes of default) attesting to the absence of elections.

The CERFA model did indeed include a specific box for companies with fewer than 20 employees, stating that “in accordance with the provisions of article L.2314-5 paragraph 5 of the Labor Code, no election has been organized”.

New regulations

Following a ruling by the French Constitutional Council, the Ministry of Labor has revised its interpretation of the relevant legal provisions.

From now on, very small companies (TPE) are exempted from negotiating the pre-electoral protocol with the trade unions; in other words, they can draw up this agreement internally without going through external negotiations.

However, these companies are still required to organize professional elections.

If, at the end of the two rounds of voting, there is neither an elected representative nor a candidate, the company may draw up a “procès-verbal de carence”.

Please note any employee may stand for re-election within 6 months of the end of the last election. In other words, the PV de carence is only valid for 6 months.

The new regulations seem rather onerous for a company. We’ll be sure to let you know if the situation changes.

Naturally, DESRUMAUX AVOCATS will be happy to help you organize this important event for your company.

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SYNTEC Agreement: On the terms and conditions of working time arrangements under the SYNTEC Agreement

The Syntec collective bargaining agreement provides for a number of working time arrangements, including JRTTs, to meet the needs of the various activities it covers.

It is appropriate to present all the terms and conditions envisaged by this agreement, before analyzing the additional options that may be available to the companies concerned.

What is RTT?

  • RTT = reduced working hours
  • To qualify, they must be provided for in a collective agreement.
  • They are used to compensate for the fact that collective working hours are exceeded, in the form of rest days.
  • In this way, RTTs are granted to employees whose employment contract provides for hours in excess of 35 hours.

The scheme, introduced in the early 2000s, was subsequently abolished by the law of August 20, 2008. RTTs survive in two ways:

  • Through collective agreements signed before 2008.
  • In compensation schemes for exceeding collective working hours introduced after 2008 and still referred to as “RTT” or “JRTT” in the SYNTEC agreement.

What are the terms of the SYNTEC agreement?

The SYNTEC agreement envisages three ways of organizing working hours.

  • The standard Syntec agreement

This arrangement applies to ETAM employees and certain managerial staff. It corresponds to a standard 35-hour working week.

Under this arrangement, it is possible to replace all or part of the overtime payment by an equivalent rest period. To do this, a company-wide agreement must be adopted, or, in the absence of trade unions, after consultation of the CSE and agreement of the employees concerned.

This method does not therefore offer any considerable leeway for the companies concerned.

In other words, either they can negotiate a company agreement to replace the payment of all or part of overtime, or they can’t, and the only option open to these companies will therefore be to place their employees on the 35-hour working week and pay all the overtime worked, which unfortunately doesn’t correspond to the economic reality of many small companies subject to the Syntec agreement.

  • The “carrying out assignments” modality

Option no. 2 in the Syntec collective bargaining agreement corresponds to a fixed number of hours per week, with an annual ceiling in days.

The employees concerned may only be engineers and managers whose annual remuneration is at least equal to the annual Social Security ceiling, which in 2023 corresponds to the sum of €43,992.

These employees are less autonomous than executives eligible for a fixed-day agreement, but they do have special assignments that prevent them from following a strictly defined timetable.

Under this arrangement, employees can work up to 38.30 hours a week, with a maximum of 219 working days a year.

The 3.5 hours of overtime are intended to be compensated by half-days of under-activity (recovery of these days in the form of compensatory rest, etc.).

Please note: in order to apply this system, the remuneration of employees concerned by this system must include variations in working hours up to a limit of 10%, but must not be less than 115% of the agreed minimum annual salary.

In other words, employees working under this arrangement must receive an annual remuneration corresponding to 115% of the agreed minimum wage, or an annual remuneration at least equal to the annual Social Security ceiling.

Here again, such arrangements are in no way suited to SMEs and VSEs subject to the Syntec Agreement.

Such companies can’t afford to meet the financial conditions imposed by the industry-wide agreement to set up this system.

Nor do these companies necessarily have the option of derogating from this arrangement by adopting a more suitable working time arrangement through a company agreement(see below).

Clearly, these companies are condemned to either work 35 hours and pay overtime, or not work overtime and reduce their productivity.

  • Daily rate

The Syntec Agreement offers companies the option of a fixed-days contract (modalité n°3).

The employees concerned may only work a maximum of 218 days per year per calendar year, including the solidarity day, for an employee who is present for a full year and has acquired all his or her paid leave entitlements, not taking into account conventional seniority leave (and any other leave provided for by company agreement or usage) and exceptional leave for family events provided for in the Syntec agreement.

Please note: within the Syntec agreement, only employees classified as 3.1 cannot be placed on a fixed-day contract.

A rider to the Agreement has slightly relaxed this condition and will soon enable engineers and managers classified in position 2.3 to be placed on a fixed-day contract.

However, if you want to place an employee on a fixed day rate, you will need to pay them 120% of the agreed minimum wage for employees in position 3.1, and 122% of the agreed minimum wage for employees in position 2.3.

This represents a gross monthly salary of €3,905.22 for an employee in position 2.3 and €4,292.40 for employees in position 3.1.

As a reminder, the changeover to a fixed-term working week also requires compliance with a number of legal and contractual conditions in order to be valid and avoid the risk of the fixed-term agreement becoming null and void.

Once again, this system is not adapted to the reality of many companies covered by the Syntec agreement.

How can I opt out of the Syntec agreement?

In reality, it appears that these procedures are not suited to most small and medium-sized companies covered by the SYNTEC agreement.

In fact, it presupposes overly drastic conditions that do not correspond to the economic reality of these companies.

Clearly, these companies can’t afford to comply with the terms and conditions proposed by the Syntec Agreement, because they can’t afford to pay their fixed-hour employees a minimum of €43,992 a year, or to apply the various supplements provided for by the branch agreement in these different terms and conditions.

For these companies, it is therefore necessary to derogate from the branch agreement.

This derogation can be achieved through the adoption of various company agreements:

Adopting a company agreement on the organization of working hours

The organization of working hours within companies can be achieved by means of agreements aimed at setting up an organization of working hours over a period longer than a week and at most equal to a year (or even three years, if authorized by a branch agreement or collective bargaining agreement).

This type of agreement makes it possible to adapt employees’ work patterns throughout the year, depending on the company’s activity, and thus avoid overtime during peak periods.

Clearly, a reference period is set, with a limit, above which overtime will be paid to employees.

For example, the limit for one year is set at 1607 hours: if at the end of the year one or more employees have exceeded this limit, they will have to be compensated for the overtime hours worked during the year.

It is also possible to set a weekly limit, e.g. 39 hours, beyond which hours worked during the same week are in any case considered as overtime, and paid with the salary for the month in question.

This arrangement can be put in place through a company agreement, or through a unilateral commitment by the employer.

In companies without employee representatives, adoption of the company-wide agreement will require a company-wide referendum and approval of the project by a 2/3 majority of the workforce.

Please note: if you decide to implement this type of agreement through a unilateral commitment, it can only be organized in work periods, equal to 9 weeks in companies with fewer than 50 employees, and four weeks for companies with 50 or more employees.

A company-wide agreement on the organization of working hours can therefore be an appropriate solution for small and medium-sized businesses wishing to derogate from the provisions of the Syntec Agreement and organize their own working hours.

However, the adoption of such an agreement presupposes either negotiation with employee representatives, or the introduction of a company-wide referendum in companies without such representatives. In the latter case, it will be necessary to obtain the approval of 2/3 of employees.

The introduction of such an arrangement by means of a unilateral commitment is less attractive because of the short period during which the agreement can be put in place.

Setting up an agreement overriding collective bargaining provisions relating to fixed-rate working days

Syntec lays down very strict conditions for setting up a fixed-rate working day agreement with a company’s employees.

Once again, these conditions may prevent smaller companies from implementing this type of agreement, even though they are sometimes more favorable to employees and better suited to the company.

Since September 2017, company agreements have enjoyed real primacy over branch agreements in this area.

It is therefore perfectly possible for your company to conclude an agreement extending the scope of fixed-price agreements.

This agreement may enable you to open up access to fixed-price agreements to employees who are not in position 3.1 or 2.3.

On the other hand, it will not be possible to extend this possibility to employees who are not managers or engineers, as the latter do not have sufficient autonomy to access this type of agreement. This would run the risk of rendering null and void any lump-sum agreements concluded on the basis of such an agreement.

It is also possible to provide for lower remuneration than that stipulated in the Syntec Agreement.

In fact, the only imperative that cannot be derogated from, even by company agreement, are the collective bargaining minimums defined by regularly revised scales.

On the other hand, the arrangements implemented within Syntec, under which an employee in position 3.1 can only be placed under a fixed-term workweek agreement if he or she receives 120% of the agreed minimum, do not constitute an imperative arrangement.

It is perfectly possible to derogate from this rule by means of a company agreement, and to provide for a lesser or different form of compensation.

Once again, this will require the adoption of a company-wide agreement, in line with the above-mentioned conditions.

Why derogate from the Syntec Agreement’s provisions on the organization of working hours?

It would appear that the Syntec collective bargaining agreement’s provisions on the organization of working hours are not adapted to the economic reality of small and medium-sized companies subject to this agreement.

It is therefore necessary for these companies to use company-level negotiations to derogate from branch provisions, within the limits set by law.

These derogations will enable these companies to adapt their working hours to their real needs, and thus support their growth and productivity.

Please note: there is no question of allowing companies to derogate from the branch in their sole interest, without taking into account the interests of employees.

The aim is to enable these companies to adapt working hours to their needs, while taking into account employees’ working conditions and envisaging compensation packages for employees that are simply better adapted to the economic reality of these companies.

Negotiations at company level would thus enable small and medium-sized businesses to set up working time arrangements that are fully adapted to their needs, with compensation packages for their employees that are also adapted to their economic health.

In fact, it seems important for the SYNTEC Convention to reform in this area.

Firstly, because the temptation to derogate from the rules it has implemented in this area is great for these companies, which find these provisions totally unsuitable and out of touch with their reality.

As a result, the effectiveness of the agreement is less important, which is a real problem since the original aim of such an agreement is to federate as many companies as possible within the same branch and with the same working conditions, thus providing unrivalled legal certainty for employees.

Secondly, because most small and medium-sized companies wishing to derogate from these provisions, which hinder their economic development, cannot in practice negotiate within their companies.

In the absence of employee representatives, it is difficult to set up a company referendum and negotiate directly with employees.

Not only is such an arrangement particularly time-consuming in these companies, where management is generally multi-tasking, but it is also particularly tricky, in practice, to explain to employees the reasons for these negotiations, to make them understand the benefits for the company and the quid pro quos that each party must agree to negotiate in order to conclude this agreement.

In the final analysis, it is difficult to negotiate with employees who are not accustomed to this exercise, which requires real experience, which employee representatives generally have. This is because it is necessary to be able to take into account the needs of the agreement for the company, and not just the modification of their own working conditions, which can be tricky for employees who would refuse any major modification to their working conditions, even if this were absolutely necessary to enable the company to evolve, and even if the proposals made to these employees appeared, objectively, to be perfectly acceptable.

We therefore feel that Syntec needs to carry out a major overhaul of this part of the agreement, in order to make it better adapted to the reality of all companies, and ultimately to reinforce the effectiveness of this agreement at national level, which would have the advantage of enabling all companies to benefit from the same base in this area, also ensuring that employees enjoy uniform working conditions throughout the industry.

In the absence of any reform, it seems clear that many of the companies that have not yet done so will derogate from these drastic conditions through company negotiation.

Naturally, DESRUMAUX AVOCATS will be happy to provide you with information on any changes to the Syntec regulations in this area, or to help you negotiate and adopt a company-wide agreement.

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Contractual length of trial period: the French Labor Code sets the upper limit

As a reminder, the French Labor Code sets the length of the trial period for employees on open-ended employment contracts according to their qualifications:

Employee qualification Length of trial period Maximum duration including renewal
Workers and employees 2 months 4 months
Supervisors and technicians 3 months 6 months
Managers 4 months 8 months

Please note: renewal of the trial period is not automatic, and cannot be provided for from the outset of the contractual relationship.

Your employee will need to sign an amendment to renew the trial period.

Some collective bargaining agreements provided for longer trial periods, while others were shorter. For example, the Syntec agreement, before it was amended, used to provide for shorter trial periods than those stipulated by law.

Some agreements provided for longer periods than those stipulated by law, and these provisions were maintained until then.

The transposition of a European directive puts an end to this possibility.

As a result, from September 9, 2023, no longer than the legal maximum duration will apply.

The French Labor Code therefore sets the maximum length of the trial period.

All your employees will therefore have to comply with the legal requirements set out above, and their probationary period may not last any longer.

On the other hand, collective agreements providing for shorter working hours remain in force, provided they were signed after June 26, 2008, the date on which the relevant legal provisions came into force.

Agreements with shorter terms concluded before this date are no longer in effect.

The provisions of the Syntec agreement were rejected by the Cour de cassation in 2016, before being amended to include the same duration as the law.

You should now refer to the legal provisions to find out the maximum duration authorized for the trial period of your employees, depending on their qualifications.

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Breaking a contract before its term: resolutory clause vs. unilateral rescission

Business contracts are often lengthy, and it is not uncommon for one party to wish to terminate the contract early.

In such a case, the party wishing to break the contract usually refers to the clauses provided for.

In most cases, the contract provides for :

  • a duration clause, which stipulates that the contract is for a fixed term and is tacitly renewable, unless terminated before the end of the term;
  • a so-called “resolutory” clause, which lists a series of situations in which a party may terminate the contract before its term.

The resolutory clause, which lists an exhaustive number of situations in which it can be invoked, seems to be the only solution for breaking the contract.

In this situation, the party experiencing a situation not covered by the resolutory clause may feel that he has no solution at his disposal. But this is not the case.

Article 1224 of the French Civil Code provides that a contract may be unilaterally terminated by any party who has suffered a “sufficiently serious breach”.

The order of the termination options set out in this article left some doubt as to whether a contract could be unilaterally terminated when a resolutory clause existed.

New legal twist: The French Supreme Court (Cour de cassation) ruled on June 8, 2023 that the existence of a clause in the contract does not prevent the parties from having recourse to the mechanism of unilateral rescission.

Please note: unilateral termination is subject to certain conditions, as non-performance must be sufficiently serious.

It may therefore be necessary to send a formal notice to your co-contractor in advance, to demand that he or she respect his or her commitments.

DESRUMAUX AVOCATS can help you negotiate a contract or break one.

Staying well-informed and well advised are essential if you are to evolve serenely in the complex world of business contracts.

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Syntec Agreement: managing employee sick leave

The Syntec Agreement contains special provisions for employees absent due to illness or accident.

In particular, these provisions stipulate the compensation to be paid to the employee during this stoppage, as well as its duration.

In this article, we take a look at the key points to be aware of when one of your employees is absent due to illness or accident.

What are the effects of sick leave on the employment contract?

All absent employees must justify their absence.

Thus, if the absence is the result of a work-related accident or illness, whether work-related or not, the absence must be confirmed by a medical certificate, which must be sent to you as soon as possible by the employee, and within a maximum of 48 hours.

Once this absence is justified, it suspends the employment contract, not terminates it.

Please note: employees on sick leave benefit from special protection against dismissal.

We recommend that you include a clause in your employees’ employment contracts specifying the deadline by which they must inform you of the reason for their absence.

This clarification can also be included in the company’s internal regulations.

How are employees compensated?

There are two distinct situations:

Incapacity following an accident at work or occupational disease

The right to payment of the allowance is acquired from the first day of presence in the company, with no seniority conditions.

Incapacity following a non-occupational accident or illness

Entitlement to the allowance is acquired after one year’s service, in accordance with legal provisions.

Important : There is no waiting period under the Syntec Agreement. This means that an absent employee who meets the conditions for entitlement to the relevant allowance will receive it from the first day of absence, duly certified by a medical certificate.

Under the SYNTEC agreement, sick pay paid by the employer to supplement Social Security benefits is guaranteed for all absences due to illness or accident, whether work-related or not, for a maximum of 90 consecutive or non-consecutive days over a period of 12 consecutive months.

Beyond this 90-day period, the employer’s health insurance scheme will continue to provide cover.

Secondly, the method for calculating the amount of sick pay will vary according to the employee’s classification and length of service:

Employee classification Seniority Salary retention
ETAM From 1 to 5 years 1 month at 100% + 2 months at 80% salary
5 years or more 2 months at 100% + 1 month at 80% discount
Engineers and managers 1 year or more 3 months at 100%

⚠ Warning: If the employee reaches the seniority referred to above during his illness, he receives, from the moment this seniority is reached, the allowance or fraction of allowance fixed according to this seniority for the remaining days of illness.

Important: The Syntec Agreement stipulates that periods of absence due to illness or accident are included in the calculation of paid leave when the employer maintains the employee’s salary.

Following a new ruling by the French Supreme Court (Cour de Cassation), any absence of an employee on sick leave will have to be taken into account in its entirety for the calculation of the paid leave from which the absent employee may benefit, including, for Syntec companies, for periods of illness which would not give rise to continued payment of salary.

DESRUMAUX AVOCATS is naturally at your disposal to discuss the terms and conditions of the Syntec agreement on sick leave, and more generally all the provisions of this agreement.

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HOW TO CONCLUDE A CONTRACT FOR A COMPANY IN FORMATION

You’re a new entrepreneur, you’ve started or are about to start the formalities for setting up your company, and don’t intend to wait for your KBIS to be issued before starting your business. Your first acts will often be to sign a commercial lease, transfer a business or create a website. How do you sign a contract for a company that doesn’t yet exist?

1. Legal personality, a prerequisite for signing contracts

In order to conclude an act, it is mandatory to have the “capacity” to conclude an act. This capacity derives, among other things, from the fact of having legal personality. Two types of persons have legal personality: natural persons and legal entities.

The French Commercial Code contains an article which states that “commercial companies have legal personality from the date of their registration in the Trade and Companies Register”.

This means that your new company will only be able to enter into contracts once it has been registered with the RCS.

So how do you go about concluding deeds for your professional activity while you’re waiting for your company to be registered with the RCS?

2. The mechanism for taking over deeds concluded on behalf of a company in formation

If you want to sign a deed for your professional activity before your company is registered, you must sign in your own name and add the words “in the name and on behalf of the company”.

The more precise, the better. If you already know them, you can indicate the registered office, the amount of capital, etc.

Secondly, Article 1843 of the French Civil Code provides that “a company duly registered may take over the commitments entered into, which are then deemed to have been entered into by the company from the outset”.

These deeds will therefore be appended to the Articles of Association, and the signing of these by the partners will entail the assumption of these commitments by the company once it has been registered.

However, Article 1843 also stipulates that “persons who have acted on behalf of a company in formation before registration are liable for the obligations arising from the acts thus performed, with joint and several liability if the company is a commercial one, without joint and several liability in other cases”. If, for example, the commercial company fails to pay its rent under the commercial lease, the person who signed the deed may be liable.

3. Poorly drafted contracts: beware of penalties

What are the consequences of not complying with this precise formalism?

Without such formalities, the deed will be deemed to have been concluded by the company itself, even though it does not yet have the legal personality to enter into contracts.

The deed will therefore be absolutely null and void, with two consequences:

  • This nullity may be invoked by any interested party, in particular by a co-contractor wishing to withdraw abruptly.
  • The deed will not be subject to confirmation or ratification, and regular execution of the deed will not prevent this.

Many companies in the process of forming do without legal advice, or have their deeds drawn up by their real estate agent or chartered accountant. Legal errors in deeds are often revealed months or years later, and can become a real legal problem (cancellation of the lease, personal liability of the signatory, etc.). We strongly advise you to seek the assistance of a legal professional.

Please do not hesitate to contact our law firm DESRUMAUX AVOCATS so that we can help you in your efforts.

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SYNTEC employment contracts: all you need to know about the intellectual property clause

Navigating the complexities of intellectual property

Navigating the complexities of intellectual property is essential for any company. The Syntec Convention offers specific insights in this area.

Intellectual property provisions

The Syntec agreement includes specific provisions on intellectual property, which you should be aware of to find out what rights your employees have with regard to inventions.

While, in accordance with the provisions of the French Intellectual Property Code, inventions made by employees during the performance of their employment contract belong to the employer, contractual provisions determine the additional remuneration that may or must be paid to the employees concerned.

Impact on employee rights

Wondering how it affects your employees’ rights to their inventions? Let’s decipher the highlights of this agreement together.

Patentable inventions: Employee rights and remuneration

If your employee makes a patentable invention during the performance of his or her employment contract, this invention belongs to your company.

The employee may receive a lump-sum bonus.

Furthermore, if the invention leads to commercial exploitation within five years of the patent or utility certificate being granted, the employee will receive additional remuneration.

This additional remuneration can take several forms:

  • A lump-sum payment made in one or more instalments;
  • A percentage of salary ;
  • A share in the proceeds from the sale of patents or operating licenses.

Please note: The Syntec Convention stipulates that this additional remuneration must be paid to the employee inventor even if he or she has left the company or retired.

The size of this additional remuneration will have to take into account a number of factors:

Subjective elements related to the employee in the context of this invention :
  • Taking into account the tasks and studies carried out by the employee to arrive at this invention;
  • Consideration of the employee’s actual duties and remuneration at the time of the invention ;
  • Circumstances surrounding the invention, difficulties in putting it into practice ;
  • Employee’s personal contribution to the invention.

Objective factors related to the company’s use of the invention:
  • Possible transfer of licenses to third parties ;
  • Potential commercial benefit of the invention.

Important: The employee must be informed in writing of the elements taken into account to determine this additional remuneration. The method of calculation and payment of the remuneration, as well as the start and end of the payment period, must be agreed in writing, except in the case of a lump-sum payment made in a single instalment.

Unpatentable inventions: rewarding innovation

Not all inventions are patentable. However, the Syntec Convention recognizes that such innovations also deserve a bonus. The choice of remuneration remains at the discretion of the company.

Software creation at Syntec companies: clear rules

Digital and IT companies come under the Syntec Convention. This agreement is clear: any software developed by an employee for his or her company belongs to the company, which holds all copyright.

🔑 Practical advice:

We recommend including specific clauses in the contracts of employees with creative functions:

  • Intellectual property clause: clearly define the terms of remuneration.
  • Confidentiality clause: protect your company’s secrets.
  • Non-competition clause: make sure talent doesn’t become a threat.

Need a customized contract? Cabinet DESRUMAUX AVOCATS is there to guide you and propose models adapted to your needs.

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The French Supreme Court reforms the right to paid leave during sick leave

Harmonization of vacation pay legislation

In two rulings dated September 13, 2023, the French Supreme Court (Cour de cassation) brought French vacation pay law into line with European law.

Previously, under the French Labor Code, periods of absence due to illness, whether work-related or not, were not fully taken into account when calculating paid leave. This practice was contrary to European Union law.

Court of Cassation decisions

The Cour de cassation has issued the following two decisions:

Acquiring paid leave during non-work-related sick leave

The French Supreme Court has ruled that the provisions of French law do not comply with European Union law.

In other words, employees suffering from an illness or accident of any kind, whether occupational or non-occupational, will continue to acquire paid leave entitlements for the duration of their absence from work.

(Cass.soc. September 13, 2023, no. 22-17.340)

Acquiring paid leave after a workplace accident

Contrary to previous French law, the French Supreme Court has ruled that in the event of an accident at work or occupational disease, vacation pay cannot be limited to one year.

From now on, paid leave will be earned for the entire duration of the work stoppage, and will no longer be limited to a single year.

(Cass. Soc. September 13, 2023, no. 22-17.638)

Things to remember :

  • Paid leave must now be calculated taking sick leave into account.
  • This decision applies to the 5 statutory weeks of paid leave, as well as to conventional vacations.
  • For earlier periods, companies are advised to check whether adjustments are necessary for the last three years, as vacation pay is in the nature of wages and is subject to a three-year statute of limitations. In this case, you’ll need to set aside a provision if necessary.

Worth knowing:

These rulings also raise an important question concerning the limit on paid vacation entitlement for employees on sick leave.

If the employee is off work for several years, will he or she continue to earn paid vacation that can then be carried forward?

For the time being, the answer is yes, unless your company’s collective bargaining agreement sets a time limit on the deferral of paid vacations.

For example, European case law has accepted a 15-month carry-over period for annual leave entitlement, but considered a 9-month period to be too short.

This deferral right must therefore be limited to at least 12 months.

In anticipation of the expected and necessary legal changes to frame this new case law, DESRUMAUX AVOCATS is at your disposal to answer any questions you may have concerning the management of paid leave for your employees on sick leave.