All of French Company Law: ordinary law of companies and specific regime for different types of companies

Company Law (en cours)

The same person can simultaneously be a corporate officer of a parent company and an employee of the subsidiary. This situation raises many questions, particularly regarding the independence of the officer in exercising the corporate mandate within the subsidiary vis-à-vis the parent company . The jurisprudence has ruled in favor of the independence of the two contracts, affirming that an employment contract and a corporate mandate constitute distinct contracts if the directives given by the governing body within the framework of the subordination relationship do not overlap with the directives that the corporate officer may receive from the partners or shareholders and the board of directors or supervisory board of the company . The independence of the contracts also implies that the dismissal of the concession director of a parent company does not affect their management mandates exercised within the subsidiaries . Conversely, actions reproached to a general manager during the exercise of a corporate mandate within a subsidiary of the employer during the suspension of their employment contract cannot justify a disciplinary dismissal . Similarly, the refusal of a director, dismissed from their duties, to provide their employer with explanations after their reinstatement about actions committed while they were seconded as a corporate officer to another company, which led to their dismissal, does not constitute a fault in the execution of their employment contract justifying their dismissal . Wrongfully dismissed, the person concerned may file an action for abusive dismissal .

Cf. Cass. soc., 4 March 1997, LawLex202200004745JBJ, specifying that in the absence of cumulation between the corporate office held by a director for the subsidiary and the salaried activity he performs for the parent company, there is no need to verify if these two activities are distinct.

CA Paris, 24 October 2013, LawLex202200007910JBJ.

Paris, 24 October 2013, LawLex202200007910JBJ; Versailles, 25 January 2007, LawLex202200007900JBJ. - Cf. Cass. com., 12 June 2007, LawLex202200007185JBJ, holding that conflicting relations between a parent company and its employee, appointed as a corporate officer of one of its subsidiaries, are, due to the interdependence between the two functions exercised, incompatible with the trust required for the fulfillment of the mandate and justify its revocation by the subsidiary, explaining that the interdependence of the employment contract exercised by an employee in a parent company and the corporate mandate held in the subsidiary is justified by the fact that no remuneration is provided for the exercise of the mandate, which is in fact in the same management logic as the employment contract.

Cass. soc., 28 June 2000, LawLex202200007140JBJ.

Cass. soc., 9 December 1997, LawLex202200007139JBJ.

Cass. com., 3 March 2015, LawLex202200007211JBJ.

276. Legal autonomy and simultaneous functions