TITLE II TRANSITION BETWEEN EMPLOYEE STATUS AND LAW ENTREPRENEURIAL STATUS
LexInter | August 8, 2018 | 0 Comments

TITLE II TRANSITION BETWEEN EMPLOYEE STATUS AND LAW ENTREPRENEURIAL STATUS

TITLE II

TRANSITION BETWEEN EMPLOYEE STATUS

AND ENTREPRENEURIAL STATUS 

The exclusivity clause cannot be enforced against the employee who creates or takes over a business

Article 15

After article L. 121-8 of the labor code, an article L. 121-9 is inserted as follows:

” Art. L. 121-9. – Notwithstanding any contractual or contractual stipulation to the contrary, no exclusivity clause, with the exception of that provided for in Article L. 751-3, may be opposed by his employer to the employee who creates or takes over a business, for a period of duration of one year from either its registration in the trade and companies register or the trades directory, or from its declaration of the start of agricultural or self-employed professional activity.

“When a leave for the creation or takeover of a business is extended under the conditions provided for in Article L. 122-32-14, the provisions of the first paragraph are presumed to apply until at the end of the extension.

“The employee remains subject to the obligation of loyalty towards his employer. “

 

Exemption from social contributions for the benefit of business creators or buyers

Article 16

I. – Sub-section 1 of section 1 of chapter I of title VI of book I of the social security code is supplemented by an article L. 161-1-2 as follows:

“Art. L. 161-1-2. – Notwithstanding the provisions in force, the creation or takeover of a company, within the meaning of Article L. 351-24 of the Labor Code, gives rise to rights for creators or buyers, for the first twelve months of exercise of this activity and within the limit of an income or remuneration ceiling, with the exemption of contributions due to the health, maternity, widowhood, old age, invalidity and death insurance schemes and family allowances to which they are affiliated due to the exercise of this activity and to the services provided by these plans when they simultaneously exercise one or more salaried activities subject to the obligation provided for by Article L. 351-4 of the Labor Code and which began before this creation or this recovery.

“1 ° On the contributions payable by the employer and the employee and relating to the fraction of the remuneration paid during the exemption period, if the interested parties are covered by an employee scheme;

“2 ° On the contributions due in respect of the activity carried out during the exemption period, if the interested parties are covered by a self-employed scheme. In this case, the exemption also relates to contributions for accidents at work.

“The exemption must be requested by the employer in the case mentioned in l ° and by the self-employed person in the case mentioned in 2 °.

“A decree determines the modalities of application of this article. In particular, it provides for the income ceiling and the minimum number of hours of salaried activity or their equivalent or assimilated duration which, on the one hand, must have been carried out prior to the creation or takeover of the company, on the other hand , will have to be during the following twelve months.

“This exemption cannot be obtained for a new creation or takeover of a business occurring less than three years after the previous one. ”

II. – Sub-section 1 of section 1 of chapter I of title VI of book I of the same code is supplemented by an article L. 161-1-3 as follows:

“Art. L. 161-1-3. – When the creator or buyer of a business receives parental education allowance under the conditions provided for in Article L. 532-4-1, he / she benefits from the exemption from contributions provided for in Article L. 161-1-2. ”

III. – The provisions of this article are applicable to the creation or takeover of companies mentioned in article L. 161-1-2 of the social security code occurring from January 1, 2004.

 

 

Right to part-time transition for business creators or buyers

Article 17

I. – The title of section 5-2 of chapter II of title II of book I of the labor code reads as follows: “Leave and part-time work period for the creation or takeover of a business and sabbatical leave “, That of sub-section 1 of this same section reads as follows:” Provisions relating to leave and part-time work for the creation or takeover of a business “and Articles L. 122-32- 12 to L. 122-32-15 of the same code read as follows:

“Art. L. 122-32-12. – The employee who creates or takes over a company is entitled, under the conditions set out in this section, either to a leave during which the employment contract is suspended, or to a period of part-time work within the meaning of Article L . 212-4-2.

“The maximum duration of this leave or this period of part-time work is one year. It can be extended for up to one year.

“Art. L. 122-32-13. – The right to leave or to a period of part-time work for the creation or takeover of a business is open to the employee who, on the effective date of this right, has seniority in the business of at least twenty-four months, consecutive or not.

“This right cannot be exercised for a new creation or takeover of a business occurring less than three years after the previous one.

“Art. L. 122-32-14. – The employee informs his employer, by registered letter with acknowledgment of receipt, at least two months in advance, of the date on which he wishes to go on leave, or of the start date and the extent of the desired reduction in his working time, as well as the envisaged duration of this leave, or this reduction.

“In the same letter, he specifies the activity of the company that he plans to create or take over.

“Any request for an extension of a leave or a period of part-time work previously granted is the subject of information to the employer under the same conditions, two months before its end.

“In the absence of a response from the employer within thirty days of the presentation of the letter referred to above, his agreement is deemed to be granted.

“Art. L. 122-32-15. – The employer has the option, under the conditions mentioned in article L. 122-32-24, to postpone the departure on leave or the start of the part-time work period within the limit of the six months running from from the presentation of the registered letter mentioned in the first and third paragraphs of article L. 122-32-14. ”

II. – After article L. 122-32-16 of the same code, three articles L. 122-32-16-1 to L. 122-32-16-3 are inserted as follows:

“Art. L. 122-32-16-1. – When a part-time work period is envisaged, it gives rise to an amendment to the employment contract setting the duration of said period and in accordance with the provisions of Article L. 212-4-3.

“Any extension of the part-time work period at the employee’s request gives rise to the signing of a new rider under the same conditions.

“Art. L. 122-32-16-2. – In companies with less than two hundred employees, when the employer considers, after consulting the works council, or, if none exists, the staff representatives, that the transformation of an employment contract full-time under a part-time employment contract will have prejudicial consequences for the production and the running of the company, he may refuse to enter into the amendment (s) mentioned in Article L. 122-32-16-1, under the conditions mentioned in Articles L. 122-32-23 and L. 122-32-24.

“In companies with two hundred employees or more, the employer may, under the conditions mentioned in Article L. 122-32-24, defer signing the same rider (s) if the percentage of the company’s employees benefiting from simultaneously with a transformation of their full-time employment contract into a part-time employment contract under Article L. 122-32-12 exceeds 2% of the company’s workforce, until the date at which this rate condition is met.

“Art. L. 122-32-16-3. – An employee for whom an amendment to his employment contract provides for the transition from full-time to part-time work cannot invoke any right to be re-employed full-time before the expiry date set by this amendment.

“At the end of the agreed part-time work period, the employee concerned returns to full-time activity with remuneration at least equivalent to that which was previously paid to him. ”

III. – Article L. 122-32-26 of the same code is thus amended:

1 ° After the reference: “L. 122-32-16”, the reference is inserted: “, L. 122-32-16- 3 ”;

2 ° It is completed by the words: “when this is due”.

IV. – In article L. 122-32-27 of the same code, after the words: “leave requests”, the words: “or part-time work period” are inserted.

V. – The third sentence of the ninth paragraph of article L. 227-1 of the same code is worded as follows:

“The time-savings account is also used to compensate all or part of the hours not worked when the employee chooses to go part-time under the conditions defined in articles L. 122-28-1, L. 122-28-9, L 122-32-12 and L. 212-4-9. ”

Article 18

The labor code is thus amended:
1 ° In 1 ° of article L. 122-1-1, after the words: “in the event of absence,”, are inserted the words: “of temporary passage in time partial, concluded by amendment to his employment contract or by written exchange between this employee and his employer, ”;
2 ° In point 1 of Article L. 124-2-1, after the words: “in the event of absence,” are inserted the words: “from provisional to part-time, concluded by amendment to his contract of work or by written exchange between the employee and his employer, ”.

 

Article 19

The labor code is amended as follows:

1 ° Article L. 221-5-1 is supplemented by a paragraph worded as follows:

“The provisions of this article apply to the departments of Bas-Rhin, Haut-Rhin and Moselle, by way of derogation from article 105 (a) and the first paragraph of article 105 (b) of the local professional code. “;

2 ° The fourth paragraph of Article L. 221-10 is supplemented by a sentence worded as follows:

“The provisions of this paragraph apply to the departments of Bas-Rhin, Haut-Rhin and Moselle, by way of derogation from article 105 (a) and the first paragraph of article 105 (b) of the local professional code. ”

Support contract for the creation or resumption of an economic activity

Article 20

Title II of Book I of the Commercial Code is supplemented by Chapter VII entitled “From the contract to support the business project for the creation or resumption of an economic activity” and comprising Articles L. 127-1 to L. 127-7 worded as follows:

“Art. L. 127-1. – Support for the business plan for the creation or resumption of an economic activity is defined by a contract by which a legal person undertakes to provide, by the means at its disposal, special and continuous assistance to a natural person, full-time self-employed person, who undertakes to follow a preparation program for the creation or takeover and management of an economic activity. This contract can also be concluded between a legal person and the sole associate manager of a legal person.

“Art. L. 127-2. – The business project support contract is concluded for a period which may not exceed twelve months, renewable twice. The terms of the support and preparation program and the respective commitment of the contracting parties are specified in the contract. The conditions under which the beneficiary can make commitments with regard to third parties in relation to the planned economic activity are thus determined.

“The contract is, under penalty of nullity, concluded in writing.

“Art. L. 127-3. – The fact that the legal person responsible for the support provides the beneficiary with the means necessary for his preparation for the creation or the takeover and for the management of the planned economic activity does not, by itself, entail

“The provision of these resources and the possible compensation for the costs incurred by the legal person responsible for supporting the execution of the contract appear in its balance sheet.

“Art. L. 127-4. – When an economic activity begins during the course of the contract, the beneficiary must register the company, if this registration is required by the nature of this activity.

“Before any registration, the commitments made by the beneficiary towards third parties during the support and preparation program are, with regard to these third parties, assumed by the guide. The legal person responsible for the support and the beneficiary are, after registration, jointly and severally liable for the commitments made by the latter in accordance with the provisions of the support contract, until the end of the latter.

“Art. L. 127-5. – The business project support contract for the creation or resumption of an economic activity may not have the object or effect of violating the provisions of Articles L. 125-1, L. 125-3, L. 324-9 or L. 324-10 of the Labor Code.

“The act of creating or taking over

“Art. L. 127-6. – The professional and social situation of the beneficiary of the business project support contract is determined by Articles L. 783-1 and L. 783-2 of the Labor Code.

“The legal person responsible for the support is responsible to third parties for damage caused by the beneficiary during the support and preparation program mentioned in Articles L. 127-1 and L. 127-2 before the registration referred to in Article L. 127-4. After registration, the legal person responsible for the support guarantees liability during the support contract, if the beneficiary has respected the clauses of the contract until the end of the latter.

“Art. L. 127-7. – The terms of publication of support contracts for the business project for the creation or resumption of an economic activity and the other measures of application of this chapter are fixed by decree of the Council of State. ”

Article 21

I. – It is inserted in chapter II of title II of book III of the labor code, a section 2 bis entitled “Support for the creation or resumption, by support contract, of an economic activity” and including an article L. 322-8 thus re-established:

“Art. L. 322-8. – State and public authority aid can be mobilized for the benefit of support and preparation for the creation or resumption of an economic activity defined in Article L. 127-1 of the Commercial Code.

“The conditions of application of this article are determined by decree of the Council of State. ”

II. – Chapter III of Title VIII of Book VII of the same code reads as follows:

“Chapter III

“Situation of the beneficiaries of the business project support contract for the creation or resumption of an economic activity
” Art. L. 783-1. – The natural person referred to in Article L. 127-1 of the Commercial Code benefits from the provisions of Titles III and IV of Book II and of Title V of Book III of this Code relating to workers deprived of employment, as well as provisions of the Social Security Code provided for in Articles L. 311-3 and L. 412-8.
“The obligations imposed by the provisions mentioned in the first paragraph on the employer’s responsibility are incumbent on the legal person responsible for the support which has concluded the contract provided for in Articles L. 127-1 to L. 127-7 of the Code of trade.
“Art. L. 783-2. – A decree in the Council of State specifies, as necessary, the methods of application of this chapter. ”
III. – Article L. 311-3 of the social security code is supplemented by a 25 ° as follows:
“25 ° People receiving support for the creation or resumption of an economic activity under the defined conditions by Article L. 127-1 of the Commercial Code. ”
IV. – After the eighteenth paragraph (13 °) of article L. 412-8 of the same code, a 14 ° is inserted as follows:
“14 ° Under conditions fixed by decree, the persons benefiting from support the creation or resumption of an economic activity under Article L. 127-1 of the Commercial Code. “

 

Occasional activities and social security contributions

Article 22

After the fifth paragraph of Article L. 612-4 of the Social Security Code, a paragraph worded as follows is inserted:
“This prorating is also applicable to persons carrying out a non-agricultural self-employed activity for a number of days per year. civil law not exceeding a threshold fixed by decree. The annual contribution thus determined may not be less than an amount fixed by decree. “

 

Presumption of non-employment with the client

Article 23

Article L. 120-3 of the labor code reads as follows:
“Art. L. 120-3. – Individuals registered in the trade and company register, in the trade register, in the register of commercial agents or with the unions for the collection of social security contributions and family allowances for the recovery of family allowance contributions, as well as that the managers of legal persons registered in the trade and companies register and their employees are presumed not to be linked with the client by an employment contract in the performance of the activity giving rise to this registration.
“However, the existence of an employment contract can be established when the persons mentioned in the first paragraph provide services directly or through an intermediary to a client under conditions which place them in a permanent legal relationship of subordination. with respect to it. In such a case, there is no concealment of salaried employment unless it is established that the client has intentionally evaded the completion of one of the formalities provided for in Articles L. 143-3. and L. 320. “

 

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