Combining an employment contract and a social mandate in France: a complete guide by a lawyer
Understand the combination of the employment contract and the social mandate: conditions, models, risks and case law. Complete, expert and educational article for SME managers.
Introduction
The combination of an employment contract and a social mandate is a central problem for managers of SMEs, whether SARL or SAS. This subject, marked by abundant case law and practical specificities, raises numerous questions: what are the conditions for accumulating? What are the risks? What clauses should be inserted? What ceilings should be respected? This guide, written by an experienced lawyer, aims to enlighten you on all facets of the subject by integrating concrete examples, practical boxes and FAQ, in order to calmly anticipate your decisions.
What is the combination of an employment contract and a social mandate?
Definition of cumulation
Combining an employment contract with a corporate mandate consists, for a manager, in combining two statuses within the company: that of employee, subject to a relationship of subordination, and that of corporate officer, legal representative of the company. This situation frequently concerns SARL managers or SAS presidents.
Educational framework
The employment contract presupposes:
- A relationship of subordination
- An effective post that is separate from the functions of the mandate
- A specific remuneration for paid employment
The social mandate involves:
- A mission of management and representation
- Absence of a relationship of subordination
Distinction between employment contract and social mandate
It is essential to distinguish between the two statuses: an employee is subject to the authority of the employer, while a corporate officer acts on behalf of and in the interests of the company. This difference is at the heart of case law.
Cumulation conditions: the rule, exceptions, practical examples
Conditions established by case law
The combination of the employment contract and the social mandate is not automatic. Jurisprudence requires compliance with three major conditions:
1. The exercise of functions distinct from the social mandate
Example: A sales manager can combine the mandate of manager if he maintains commercial tasks separate from his management missions.
2. The existence of an effective relationship of subordination with respect to society
There must be a line manager (for example, the board of directors, the general meeting or a majority partner).
3. Remuneration for paid duties separate from that of mandatary
The absence of confusion between the two statutes makes it possible to avoid requalification by judges.
Concrete example
In a SARL, a manager can also act as an employee provided he is a minority or egalitarian. In principle, a majority manager will not be able to combine the two statuses.
Cumulation of employment contract and social mandate in SARL: specificities
Status of the minority, egalitarian and majority manager
Minoritary/egalitarian manager:
- Possibility of combining with an employment contract (if separate tasks and existence of a relationship of subordination)
- Examples: administrative director, logistics manager
Majority manager:
- Impossibility of accumulation according to the Court of Cassation due to the absence of a relationship of subordination
Concrete applications
In a SARL, the minority manager who owns 40% of the shares and who reports directly to the board of directors, in principle, meets the conditions for accumulation.
Cumulation of employment contract and social mandate in SAS: applicable rules
Status of the president and determination of the relationship of subordination
The president of an SAS can in principle combine the two statutes, provided that he exercises employee functions separate from his representation and management missions. The existence of a relationship of subordination, often materialized by a supervisory board or a majority partner, is necessary.
Model employment contract clause for corporate officers (example)
Case law on the combination of employment contracts and social mandates
Jurisprudential examples
A president of SAS with a job description, objectives and monthly reports to the supervisory board was able to benefit from a separate employment contract.
On the other hand, a sole manager and majority partner of SARL was rejected on the grounds of lack of subordination.
Cumulation risks and limits: suspension, ceiling, requalification
Suspension of the employment contract and social mandate
The employment contract can be suspended in several situations:
- Availability
- Transition to an exclusive social mandate (with resumption of the employment contract possible at the end of the mandate)
Practical example:
A manager who has served as President of SAS may suspend his Commercial Director contract during his presidential term, before resuming at the end of this term.
Cumulation ceilings: taxation and social security
Cumulative remuneration must respect certain social ceilings:
- Separate business expenses
- Social contribution base dissociated between employee and mandate
- Attention URSSAF: excessive remuneration can be a problem
FAQ: combining employment contract and social mandate
1. Can an employment contract and a social mandate be combined in an SARL?
- Yes, only for minority or egalitarian managers, and provided they meet the criteria of distinct tasks and subordination.
2. What are the conditions for combining in a SAS?
- There is a need for effective paid positions, separate remuneration and supervision by a board responsible for control.
3. What model clause for a corporate officer employment contract?
- Insert a clause specifying the purpose, the relationship of subordination and the differentiated remuneration (see table above).
4. What are the major case law decisions?
- Jurisprudence requires the reality of the relationship of subordination and the distinction of tasks, while refusing the accumulation of the majority manager of SARL.
5. Can the employment contract be suspended?
- Yes, in the case of an exclusive mandate, the contract is not broken but suspended, with possible resumption.
6. Is there a ceiling for the accumulation of earnings?
- Social and fiscal ceilings apply: do not confuse the bases for calculating social security contributions for each status.
Points of vigilance and practical framework
Attention to requalification!
The judge may requalify the situation in the absence of separate tasks or subordination. The use of a lawyer is therefore highly recommended to anticipate all URSSAF checks, legal compliance and contractual clarity.
Educational framework
- Check the drafting of the contract: clearly distinguish between salary missions and mandate missions
- Prepare the evidence: job descriptions, organization charts, reports
Regulatory reform and changes
The latest reforms have strengthened control over cumulation to combat social abuse. The legislator states that only compliance with the triple condition allows dual social protection. The doctrine calls for maximum contractual transparency.
To go further: the social mandate contract
Do you want to know more about the mandate contract?
Find our article which gives a general presentation of the mandate contract:
Conclusion
The combination of an employment contract and a social mandate offers interesting prospects for SME managers, provided they are rigorously supervised. Relying on case law, precise drafting and professional support is essential to secure the situation in the face of social and fiscal control.
Article written by Guillaume Leclerc, lawyer in commercial contracts and commercial litigation in Paris.
