France: Macron law adopted

Law n°2015 990 for growth, activity and equality of economic opportunities, the Macron Law, was finally adopted on 6 August 2015. This law covers a wide range of matters from Sunday working, reform of regulated legal professions to driving licences.

Relaxing of the Regime for Free Shares

• Reduction of the vesting period from 2 years to 1;
• No minimum retention period but the aggregate of the vesting and retention periods cannot be less than 2 years (as opposed to 4 years);
• The provision by which the difference between the number of shares distributed to each employee cannot be higher than a ratio of 1 to 5 only applies to free shares exceeding 10% of the share capital (15% for non-listed small and medium companies);
• The rate of the employer's social security contribution is reduced from 30 to 20% and is due at the date of acquisition rather than the date of attribution;
• The employee's social security contribution of 10% is abolished;
• The acquisition gain for the beneficiary is treated for tax purposes as an "added-value" which can qualify for a tax reduction depending on time of ownership.

This new regime applies to free shares authorised by an extraordinary shareholder general meeting held after the publication of the Macron Law (7 August 2015).

Directors

By way of reminder, when more than 3% of the share capital of a listed company is held by the employees, one or more directors representing the employee shareholders must be appointed. As a result of the Macron Law, free shares held in nominative form directly by the employees are also taken into account for calculating the proportion of the capital held by employees.

In addition to the Macron Law, law n°2015-994 dated 17 August 2015 relating to social dialogue and employment changed the criteria for which directors representing the employees must be appointed in large public companies (whether listed or not):

reduction of the thresholds relating to number of employees (1 000 employees in France instead of 5 000; 5 000 employees worldwide instead of 10 000);
deletion of the condition requiring there to be works council;
introduction of an exception for companies whose principal activity is to acquire and manage subsidiaries and interests, provided that (i) this company has no obligation to have a works council and (ii) at least one of its French subsidiaries is obliged to appoint directors representing the employees.

Number of Directorships

In listed companies with more than 5 000 employees in France or 10 000 worldwide, a managing director or member of the directoirecannot hold more than 3 directorships (instead of 5) but this does not include directorships in companies whose principal activity is to acquire and manage interests in companies which constitute interests (participations).

Supplementary Company Pension Regime (Retraites Chapeaux)

• Supplementary company pension schemes (retraites chapeaux) are now subject to :
  - the control procedure for related party agreements;
  - performance conditions.
• Prohibition on annual increases exceeding 3% of the remuneration serving as base for the calculation of the pension.
• Prohibition on taking into account an officer's length of service from a previous post for the supplementary pension.

This new regime applies to pension commitments taken by a company as from the publication of the Macron Law (7 August 2015) and to those taken in respect of an officer who is nominated or whose mandate is renewed following publication of the law.

Changes to the obligation to inform employees in the event of a sale

By way of reminder, law n°2015-856 dated 31 July 2014 (ESS Law) introduced an obligation to inform employees of certain companies with less than 250 employees prior to a sale of the business or a controlling stake. The aim of this obligation was to inform employees of the sale and of the possibility for them to make an offer for the business or the shares.

This information obligation was highly criticised and has been relaxed by the Macron Law:

• the sanction of nullity of the transfer (already declared unconstitutional by the Conseil Constitutionnel) has been replaced by a fine of 2% of the purchase price;
• applicable only to sales (instead of transfers);
• clarification of the methods of providing the information to the employees;
• not applicable if, in the 12 months prior to the sale, the employees have already been informed as part of the employer's general 3 yearly information obligation.

These changes should come into effect by the end of 2015 following publication of a decree (décret d'application).

Business Sales

The formalities applicable to business sales (cession de fonds de commerce) have been relaxed slightly in that creditors no longer have the right to request an auction of the purchase price. However creditors retain their opposition rights.

Obstructing the proper functioning of the works council (Délit d'entrave)

The offence of obstructing the proper functioning of the works council (délit d'entrave) remains a criminal offence but:

• the prison sentence is abolished for the least serious case, interference with the everyday functioning of the works council;
• the fines are doubled from €3 750 to €7 500 for individuals (€37 500 for legal entities).

A prison sentence of 1 year is still possible for interference with the setting up of the works council and non-respect of the protected status of the employee representatives.

NB: In addition to the potential criminal sanctions, the works council could still seek an injunction (or damages although this is rarer) for failure to respect the works council consultation obligation.

Limits on damages for unlawful dismissal

The provisions in the Macron Law relating to a cap on damages for unlawful dismissal were censured by the Conseil Constitutionnel which considered that the distinction by size of company was contrary to the principle of equality. New proposals from the Government on this subject are expected.

Asset Management and Employee Saving Schemes

Creation of the société de libre partenariat, an investment vehicle which has legal personality, a form of governance similar to an anglo-saxon limited partnership and is flexible as to its functioning and investments.
Employee saving funds (FCPE) can now hold up to 30% of their assets in the form of securities issued by OPCIs.

Companies in difficulty: Forced eviction of shareholders in a company in judicial administration

The Conseil Constitutionnel validated, on the grounds of the right to work, the provisions in the Macron Law allowing for the forced eviction of the shareholders of a company in judicial administration (redressement judiciaire), either through a forced sale or by a dilution of their shareholding.

If the general shareholders' meeting rejects a rehabilitation plan (plan de redressement) which provides for a share capital increase in favour of a third party, the administrator can ask the court to either (i) appoint a nominee (mandataire) who can vote in favour of the plan in the place of the opposing shareholders or (ii) order the forced sale of the shares of the opposing shareholders to the third party who committed to comply with the rehabilitation plan.

Eviction is only possible if the following 4 conditions are satisfied:

• the company has at least 150 employees or is the "dominant" company (as per L.2331-1 of the Code du travail) of a group of companies which have at least 150 employees (the group of companies' committee (comité de groupe) criteria);
• the company is in judicial administration i.e. unable to pay its debts as they fall due, a purely legal notion which only takes into account the immediately available assets of the company and not its ecomonic value;
•  if the company ceased its activity, it would seriously affect the national or regional economy and the labour market area;
• eviction can only be used as a last resort once a partial or total sale of the business has been ruled out.