CHARACTERISTICS OF THE SUBORDINATION LINK JURISPRUDENTIAL

Whereas, following an inspection, URSSAF reintegrated into the base of the contributions due by the Société Générale for the years 1984 and 1985, on the one hand, the sums paid to the staff as a “hold-up bonus “and as a supplementary pension, on the other hand, those paid as fees to lecturers outside the company;

On the second plea:

Whereas Société Générale complains that the judgment under appeal, ruling on referral, has maintained the adjustment made under the “hold-up bonus”, so, according to the plea, that the note of January 1987 concerning this bonus specifies that it is an “individual reward” to “the agent who was directly assaulted, which excludes the colleagues who witnessed the hold-up” and that “the benefit of this reward is acquired when the agent has suffered physical violence or has had a specific attitude to protect the values ​​for which he is responsible “; that the primary meaning of the word reward is “gift, favor which rewards a loss, a damage”; that he

But given that having noted that the disputed gratuities were granted on the occasion of their work to employees who, to protect the values ​​for which they were responsible, had suffered physical violence or had “a specific attitude”, the court of Appel deduced from this exactly that they constituted additional remuneration entering into the base of social contributions; that the means is unfounded;

On the third plea, taken in its four branches:

Whereas Société Générale still complains against the judgment of having maintained the adjustment for supplementary pensions, then, according to the plea, on the one hand, that the Court of Appeal found that it had “committed to paying some of its senior executives a supplementary pension” beyond the pension paid to them by the bank’s pension fund; that if, for budgetary forecasting reasons, in order to ensure this specific obligation, Société Générale allocated each year to a particular account in its internal cost accounting an amount of 20% of the part of the remuneration paid to senior executives in activity exceeding the limit of the pension fund of the bank, the court of appeal further found that the disputed pension supplement was in all cases directly paid by the bank to the interested parties; that it follows that Article L. 242-1 of the Social Security Code violates the contested judgment which applies to these pension supplements the scheme of the employers’ contribution intended for “financing of additional pension benefits” covered by this text and operated by the payment by the employer of contributions to a third party; then, on the other hand, that the disputed pension supplements having been paid to retirees, that is to say to people who were no longer required by a contested judgment which applies to these supplementary pensions the scheme of employers’ contribution intended for “financing of supplementary retirement benefits” referred to by this text and operated by the payment by the employer of contributions to a third party; then, on the other hand, that the disputed pension supplements having been paid to retirees, that is to say to people who were no longer required by a contested judgment which applies to these supplementary pensions the scheme of employers’ contribution intended for “financing of supplementary retirement benefits” referred to by this text and operated by the payment by the employer of contributions to a third party; then, on the other hand, that the disputed pension supplements having been paid to retirees, that is to say to people who were no longer required by a relationship of subordination and came under the provisions of Articles L. 241-2 and D. 242-8, paragraph 2, of the Social Security Code and not those of Article L. 242-1 of the same Code, violates these texts the judgment which maintains the contested adjustment on the grounds that the collection of the supplementary pension constitutes, for the one who benefits from it, a financial advantage linked to the employment contract which united him to the Société Générale; then, moreover, that the court of appeal found that the account into which the percentage of 20% was paid was a simple “promissory account”, namely an account at the free disposal of the Société Générale without obligation of of any kind and in particular without being required to allocate its content to the payment of the disputed retirement benefits; that article L. 242-1 of the Code of social security only covering “the sums paid to workers”, does not legally justify its decision with regard to this text the judgment which bases its solution on the existence of said order account; then, finally, that, assuming that the sums paid by Société Générale, as supplement to retirement, passed through a special account, it was undisputed that these sums had not been made available to retirees, before their payment by the bank as a retirement supplement, so that articles L. 242-1, L. 242-2 and D. 242-8 of the Social Security Code are violated by the judgment which submits these payments to the first of these texts and not to the last two which specifically govern the subject, on the grounds that the Société Générale had made use of a “

But whereas the judgment notes that the Société Générale was committed to provide some of its senior executives, and therefore to a specific category of employees, a supplementary pension; that he adds that, only ensuring the financing of this scheme, the employer paid the interested parties individually from a special internal account into which he paid each year a contribution equal to 20% of the part of the remuneration of senior executives in activity , supplemented by a balancing subsidy; that the Court of Appeal deduced from this exactly that this contribution, intended for the financing of supplementary retirement and provident benefits, constituted for each employee an advantage linked to his employment contract and that

From which it follows that the means is not founded in any of its branches;

But on the means raised automatically after the parties have been invited to present their observations;

Having regard to article L. 242-1 of the Social Security Code, together articles L. 121-1 of the Labor Code and 620, paragraph 2, of the new Code of Civil Procedure;

Whereas, according to the first of these texts, for the calculation of social insurance contributions, work accidents and family allowances, all sums paid to workers in return for or on the occasion of a job are considered as remuneration. accomplished in a relationship of subordination ; that the relationship of subordination is characterized by the performance of work under the authority of an employer who has the power to give orders and directives, to control their execution and to sanction the breaches of his subordinate ; that work in an organized service can be an indication of the relationship of subordination when the employer unilaterally determines the conditions of performance of the work;

Whereas, to decide that the fees paid to the speakers and external speakers were subjected to the contributions of the general system of social security, the judgment retains that their services were carried out within the framework of an organized service;

That by so ruling, while it had noted that the theme of the speakers’ intervention and their remuneration were not unilaterally determined by the General Society, but agreed with the interested parties, and that they were not submitted in addition to no order, no directive, no control in the execution of their service, which resulted in the speakers and speakers not being placed in a relationship of subordination with regard to Société Générale, the court of appeal, which did not draw legal consequences from its own findings, violated the aforementioned texts;

And having regard to article 627 of the new Code of Civil Procedure;

FOR THESE REASONS, without there being any need to rule on the first plea:

BREAK AND CANCELED, but only in that it decided that the fees of lecturers and external speakers should be reintegrated into the base of social contributions, the judgment delivered on February 1, 1994, between the parties, by the court of call from Bordeaux;

DIT there be no referral;

DIT there should be no adjustment for the remuneration of speakers and external speakers.

Publication: Bulletin 1996 VN ° 386 p. 275 Contested
decision: Bordeaux Court of Appeal, February 1, 1994

Titles and summaries:

1 ° SOCIAL SECURITY – Contributions – Base – Gratifications – “Hold up” gratuity .

1 ° The “hold up” bonuses which have been granted during their work to employees who, in order to protect the values ​​for which they were responsible, had suffered, constitute additional remuneration entering into the basis of social security contributions. physical violence or had a specific attitude.

2 ° SOCIAL SECURITY – Contributions – Base – Contribution to the financing of supplementary retirement and provident benefits – Advantage linked to the employment contract – Scope.

2 ° Having noted that an employer had undertaken to provide some of its senior executives with a supplementary pension and paid the interested parties individually from a special internal account to which it paid each year a contribution equal to 20% of the part of the remuneration of these senior executives in activity, supplemented by a balancing subsidy, a court of appeal decides exactly that this contribution, intended for the financing of supplementary retirement and provident benefits, constitutes for each employee a benefit linked to his employment contract, and must be subject to contributions in the portion exceeding the limits provided for in Article D. 242-1 of the Social Security Code.

3 ° SOCIAL SECURITY – Subjugation – General – Conditions – Bond of subordination – Definition.

3 ° According to Article L. 242-1 of the Social Security Code, for the calculation of social insurance contributions, work accidents and family allowances, all sums paid to workers in return for or to family allowances are considered as remuneration. the opportunity for work accomplished in a relationship of subordination . The bond of subordinationis characterized by the performance of work under the authority of an employer who has the power to give orders and directives, to control their execution and to sanction the breaches of the subordinate. Work in an organized service can be an indication of the relationship of subordinationwhen the employer unilaterally determines the conditions of performance of the work. Consequently, the Court of Appeal which decides that fees paid by a company to lecturers or external speakers must be submitted violates articles L. 242-1 of the Social Security Code and L. 121-1 of the Labor Code. contributions while it noted that the theme of the speakers’ intervention and their remuneration were not unilaterally determined by the company but agreed with the interested parties and that they were not subject to any order, to any directive, nor any control in the performance of their service, so that they were not placed in a relationship of subordination to the