LexInter | October 25, 2005 | 0 Comments

COLLABORATING SPOUSE AND NEW FORMS OF ACTIVITY

TITLE III
THE COLLABORATING SPOUSE
AND NEW FORMS OF ACTIVITY 

Article 12

I. – The title of section 2 of chapter I of title II of book I of the commercial code reads as follows: “The spouse of the business owner working in the family business”.

II. – Article L. 121-4 of the same code reads as follows:

“Art. L. 121-4. – I. – The spouse of the head of a craft, commercial or liberal enterprise who regularly exercises a professional activity there chooses one of the following statuses:
“1 ° Collaborating spouse;
“2 ° Employee spouse;
“3 ° Associate spouse.
“II. – With regard to companies, the status of collaborating spouse is only authorized to the spouse of the sole managing partner or of the majority managing partner of a limited liability company or of a private limited liability company responding under threshold conditions set by decree of the Council of State.

“The choice made by the spouse of the majority managing partner to benefit from the status of collaborating spouse is brought to the attention of the partners during the first general meeting following the mention of this status with the organizations mentioned in IV.

“III. – The professional and social rights and obligations of the spouse result from the status for which he has opted.

“IV. – The business manager mentions the status chosen by the spouse with the bodies authorized to register the business registration.

“V. – The definition of the collaborating spouse, the modalities according to which the choice of his status is mentioned to the organizations referred to in IV and the other conditions of application of this article are fixed by decree of the Council of State. ”

III. – Section I of article 46 of law n ° 2002-73 of 17 January 2002 on social modernization is repealed from the publication of the decree in the Council of State provided for in V of article L. 121-4 of trade code.

Article 13


After article 1387 of the civil code, an article 1387-1 is inserted as follows:

“Art. 1387-1. – When the divorce is pronounced, if debts or sureties have been granted by the spouses, jointly or severally, in the context of the management of a business, the tribunal de grande instance may decide to have them bear the exclusive burden of the spouse who keeps the professional heritage or, failing that, the professional qualification that served as the basis of the business. ”

Article 14


Section 2 of Chapter I of Title II of Book I of the Commercial Code is supplemented by an Article L. 121-7 worded as follows:

“Art. L. 121-7. – In relations with third parties, the acts of management and administration carried out for the needs of the company by the collaborating spouse are deemed to be on behalf of the company manager and do not entail the responsibility of the spouse employee no personal obligation. ”

Article 15


I. – Article L. 622-8 of the social security code reads as follows:

“Art. L. 622-8. – Subject to the application of the provisions of articles L. 311-2 and L. 311-6 of this code, the collaborating spouse and the associated spouse mentioned in article L. 121-4 of the commercial code are personally affiliated to the independent old-age insurance organization mentioned in 1 °, 2 ° or 3 ° of Article L. 621-3 of this code to which the company manager is affiliated. ”

II. – 1. The first paragraph of Article L. 644-1 of the same code is supplemented by a sentence worded as follows:

“The associated spouse or collaborating spouse, mentioned in Article L. 121-4 of the Commercial Code, of the insured belonging to this group or exercising this activity is compulsorily affiliated to this plan. ”

2. Article L. 644-2 of the same code is supplemented by a sentence worded as follows:

” The partner spouse or collaborating spouse, mentioned in Article L. 121-4 of the Commercial Code, of the insured belonging to this group or exercising this activity is a compulsory member of this scheme. ”

III. – Article L. 633-10 of the same code is supplemented by five paragraphs as follows:

“The contributions of the collaborating spouse mentioned in article L. 121-4 of the Commercial Code are calculated, at his request:

“1 ° Either on a flat-rate income or on a percentage of the professional income of the entrepreneur;

“2 ° Or, with the agreement of the head of the company, on a fraction of the professional income of the latter which is deducted, by derogation from the provisions of article L. 131-6, from the professional income of the head of the company taken into account to determine the basis of his retirement insurance contribution.

“The provisions of article L. 131-6-1 are applicable to the contributions due by the collaborating spouse, at his request or that of the head of the company. They are not applicable to the member spouse, on the date of entry into force of article 15 of law n ° 2005-882 of August 2, 2005 in favor of small and medium-sized enterprises, to voluntary old-age insurance for workers. non-agricultural workers, in application of the provisions of article L. 742-6.

“The terms of application of 1 ° and 2 ° are fixed by decree. ”

IV. – Article L. 633-11 of the same code is thus reinstated:

“Art. L. 633-11. – The collaborating spouse mentioned in Article L. 633-10 may request that the autonomous old-age insurance organization mentioned in 1 ° or 2 ° of Article L. 621-3 be taken into account of periods activity, subject to justifying by all means having participated directly and effectively in the activity of the company and paying contributions under conditions guaranteeing actuarial neutrality. The periods that may be redeemed are limited to six years. The repurchase is authorized until December 31, 2020.

“A decree in Council of State determines the conditions of application of this article, in particular:

“ – the conditions under which the requests must be presented;

“- the method of calculating contributions and the revaluation coefficients applicable to them;

“- the procedures for settling applicants’ retirement insurance rights. ”

V. – Article L. 634-2 of the same code is supplemented by a paragraph worded as follows:

” When the provisions of 2 ° of Article L. 633-10 are applied, the provisions of Article L. 351-10 apply to the total rights acquired by both spouses. ”

VI. – After article L. 642-2 of the same code, an article L. 642-2-1 is inserted as follows:

“Art. L. 642-2-1. – The retirement insurance contributions of the collaborating spouse mentioned in Article L. 121-4 of the Commercial Code are calculated, at his request:

“1 ° Either on a flat-rate income or on a percentage of the professional income of the liberal professional;

“2 ° Or, with the agreement of the liberal professional, on a fraction of the professional income of the latter which is deducted, by derogation from the provisions of article L. 131-6 of this code, from the income of the liberal professional taken into account. account to determine the basis of its contribution, this fraction being applied to each of the two installments provided for in article L. 642-1.

“The provisions of the fifth, sixth and seventh paragraphs of article L. 642-2 are applicable to the contributions due by the collaborating spouse, at his request or that of the liberal professional. However, they are not applicable to the collaborating spouse who is a member, on the date of entry into force of article 15 of law n ° 2005-882 of 2 August 2005 in favor of small and medium-sized enterprises, to voluntary old-age insurance. non-salaried non-agricultural workers, in application of the provisions of article L. 742-6.

“The terms of application of this article are fixed by decree. ”

VII. – After article L. 642-2 of the same code, an article L. 642-2-2 is inserted as follows:

“Art. L. 642-2-2. – The collaborating spouse mentioned in article L. 642-2-1 may request that the independent old-age insurance organization mentioned in 3 ° of article L. 621-3 take into account periods of activity, subject to proving by all means having participated directly and effectively in the activity of the company and paying contributions under conditions guaranteeing actuarial neutrality. The periods that may be redeemed are limited to six years. The repurchase is authorized until December 31, 2020.

“A decree in Council of State determines the conditions of application of this article, in particular:

“ – the conditions under which the requests must be presented;

“- the method of calculating contributions and the revaluation coefficients applicable to them;

“- the procedures for settling applicants’ retirement insurance rights. ”

VIII. – After the first paragraph of article L. 723-1 of the same code, a paragraph is inserted as follows:

“The associated spouse and the collaborating spouse mentioned in article L. 121-4 of the code of trade. ”

IX. – Article L. 723-5 of the same code is supplemented by six paragraphs worded as follows:

“The basic old-age insurance contributions of the collaborating spouse of the self-employed lawyer include a part fixed at a fraction of the contribution referred to in the first paragraph and a part calculated on a fraction equivalent to the previous one of the income referred to in the second paragraph.

“The collaborating spouse mentioned in Article L. 121-4 of the Commercial Code may request that the autonomous old-age insurance organization mentioned in Article L. 723-1 of this Code be taken into account of periods activity subject to justifying by all means having participated directly and effectively in the activity of the company and paying contributions under conditions guaranteeing actuarial neutrality. The periods that may be redeemed are limited to six years. The repurchase is authorized until December 31, 2020.

“A decree in Council of State determines the conditions of application of this article, in particular:

“ – the conditions under which the requests must be presented;

“- the method of calculating contributions and the revaluation coefficients applicable to them;

“- the procedures for settling applicants’ retirement insurance rights. ”

X. – After the first paragraph of article L. 723-14 of the same code, a paragraph is inserted as follows:

” The collaborating spouses referred to in the second paragraph of article L. 723-1 are also subject to compulsory supplementary old age and survivors’ insurance scheme. ”

XI. – After the first paragraph of Article L. 723-15 of the same code, a paragraph worded as follows is inserted:

“The supplementary old-age insurance contributions of the collaborating spouse of the self-employed lawyer are based, on request, on a percentage of the professional income defined in the first paragraph. With the agreement of the lawyer, this base may be deducted from the income defined in the first paragraph before calculating the lawyer’s contribution to the supplementary scheme. ”

XII. – 1. In Article L. 643-5 of the same code, after the words: “is no longer able to practice”, the words are inserted: “or to participate as a collaborating spouse in”.

2. Article L. 723-10-2 of the same code is supplemented by a paragraph worded as follows:

“The provisions of this article are applicable to the collaborating spouse of the self-employed lawyer mentioned in article L. 723-1. ”

3. Article L. 723-10-4 of the same code is supplemented by a paragraph worded as follows:

“The provisions of this article are applicable to the collaborating spouse of the self-employed lawyer mentioned in article L. 723-1 and assessed with regard to the inability to participate as a collaborating spouse in the lawyer’s activity. ”

XIII. – The 5 ° and 6 ° of article L. 742-6 and articles L. 742-9 and L. 742-11 of the same code are repealed from the date of publication of the decree in the Council of State provided in V of Article L. 121-4 of the Commercial Code.

XIV. – The provisions of this article are applicable:

1 ° From the date of publication of the decree in the Council of State provided for in V of Article L. 121-4 of the Commercial Code, to spouses subscribing, on that date, to voluntary old-age insurance for workers not employees in application of the provisions of 5 ° and 6 ° of Article L. 742-6 of the Social Security Code;

2 ° From the first day of the fourth calendar quarter following the date of publication of the decree in the Council of State provided for in V of Article L. 121-4 of the Commercial Code, to the collaborating spouses mentioned in Article L. 622-8 of the social security code other than those mentioned in 1 ° of this XIV.

Article 16


I. – In the first paragraph of Article L. 322-9 of the Labor Code, after the words: “or more employees”, are inserted the words: “and of the collaborating spouse or of the associated spouse mentioned in Article L 121-4 of the Commercial Code ”.

II. – In the third paragraph of Article L. 443-1 of the same code, after the words: “or, in the case of legal entities, their chairmen, general managers, managers or members of the management board”, are inserted words: “as well as the spouse of the head of the company if he has the status of collaborating spouse or associate spouse mentioned in Article L. 121-4 of the Commercial Code”.

III. – In the first paragraph of Article L. 953-1 of the same code, the words: “As of January 1, 1992,” are deleted, and after the words: “including those not employing any employee,”, are insert the words: “as well as their collaborating spouse or their associated spouse mentioned in Article L. 121-4 of the Commercial Code,”.

IV. – The first sentence of the second paragraph of the same article is supplemented by the words: “or at 0.24% of the same amount when the self-employed person or the member of the liberal professions and the self-employed professions benefits from the assistance of his collaborating spouse or of his partner spouse under the conditions provided for in the first paragraph of I of Article L. 121-4 of the Commercial Code ”.

V. – In I of article 14 of law n ° 89-1008 of December 31, 1989 relating to the development of commercial and craft enterprises and the improvement of their economic, legal and social environment, the words: “artisanal or commercial ”are replaced by the words:“ artisanal, commercial or liberal ”.

Article 17


II of article 16 of law n ° 96-603 of 5 July 1996 relating to the development and promotion of trade and craftsmanship is supplemented by a paragraph worded as follows:

“When the conditions for exercising the activity determined in I are met only by the business manager and the latter ceases to operate the business, the provisions relating to the professional qualification required for the activities provided for in I are not applicable, for a period of three years from the cessation of operation, to the activities carried out by the spouse of this business manager called upon to ensure the continuity of operations, provided that he falls within the scope of ” one of the articles of association mentioned in Article L. 121-4 of the Commercial Code for at least three years and that he undertakes a process of validation of the acquired experience in accordance with I of Article L. 335 -5 of the education code. ”

 

Article 18


I. – Members of the liberal professions subject to legislative or regulatory status or whose title is protected, with the exception of the professions of public or ministerial officers, auditors and judicial administrators and judicial representatives for recovery and liquidation of companies, can exercise their activity as a liberal collaborator.

II. – The non-salaried member of a profession mentioned in I who, within the framework of a liberal collaboration contract, exercises with another professional, natural person or legal person, the same profession as a liberal collaborator.

The liberal employee exercises his professional activity in complete independence, without any link of subordination. He can complete his training and can build up a personal clientele.

III. – The liberal collaboration contract must be concluded in compliance with the rules governing the profession.

This contract must, on pain of nullity, be drawn up in writing and specify:

1 ° Its duration, indefinite or fixed, mentioning in this case its term and, where applicable, the conditions for its renewal;

2 ° The terms of remuneration;

3 ° The conditions for carrying out the activity, and in particular the conditions under which the liberal employee can meet the needs of his personal customers;

4 ° The conditions and modalities of its termination, including a notice period.

IV. – The liberal collaborator is responsible for his professional acts under the conditions provided for by the texts governing each of the professions mentioned in I.

V. – The liberal collaborator comes under the social and fiscal status of the liberal professional who practices as an independent professional.

VI. – Article 7 of Law No. 71-1130 of December 31, 1971 reforming certain judicial and legal professions is thus amended:

1 ° In the first paragraph, the words: “non-salaried employee” are replaced by the words: ” liberal collaborator ”;

2 ° After the first paragraph, a paragraph worded as follows is inserted:

“Without prejudice to the provisions of this article, the lawyer may exercise his profession as a liberal collaborator of a lawyer in accordance with the terms provided for in article 18 of law n ° 2005-882 of August 2, 2005 in favor of small and medium-sized enterprises. “;

3 ° In the second paragraph, the words: “The collaboration contract or” are deleted;

4 ° The third paragraph is deleted.

Article 19


Title IV of Book I of the Commercial Code is supplemented by Chapter VI as follows:


” Chapter VI


“Managers-agents


“Art. L. 146-1. – The natural or legal persons who manage a business or an artisanal fund, subject to the payment of a commission proportional to the turnover, are qualified as “agent-managers when the contract concluded with the principal, on whose behalf , where applicable within the framework of a network, they manage this fund, which remains the owner and bears the risks associated with its operation, sets them a mission, leaving them full latitude, within the framework thus drawn up, to determine their working conditions, hiring staff and replacing replacements in their activity at their own expense and under their sole responsibility.

“The agent-manager is registered in the trade and companies register and, where applicable, in the trades directory. The contract is mentioned in this register or in this directory and is published in a newspaper authorized to receive legal notices.

“The provisions of this chapter are not applicable to professions governed by Chapter II of Title VIII of Book VII of the Labor Code.

“Art. L. 146-2. – The principal provides the agent-manager, before signing the contract, with all the information necessary for his mission, as defined by decree, in order to enable him to make an informed commitment.

“Art. L. 146-3. – A framework agreement concluded between the principal and the agent-managers to whom he is bound by a contract, or their representatives, fixes in particular the amount of the minimum guaranteed commission in all the management-mandate contracts concluded by the said principal. This minimum commission takes into account the size of the establishment and the methods of its operation.

“In the absence of agreement, the minister responsible for small and medium-sized enterprises sets this minimum commission.

“Art. L. 146-4. – The contract between the principal and the agent-manager may end at any time under the conditions set by the parties. However, in the event of termination of the contract by the principal, except for serious misconduct on the part of the agent-manager, the principal pays him an equal indemnity, unless more favorable conditions set by the parties, in the amount of the commissions acquired, or at the commission. minimum guarantee mentioned in article L. 146-3, during the six months preceding the termination of the contract, or during the execution of the contract if this was less than six months. ”

Article 20


I. – The first paragraph of Article L. 127-1 of the Labor Code is thus amended:

1 ° The word: “exclusive” is deleted;

2 ° A sentence worded as follows is added:

“They can also provide their members with help or advice in matters of employment or human resources management. ”

II. – The second paragraph of the same article is replaced by two paragraphs thus worded:

“These groups can only engage in non-profit operations. They are constituted in the form of associations declared under the law of July 1, 1901 relating to the association contract or in the form of cooperative societies within the meaning of law n ° 47-1775 of September 10, 1947 on the statute of cooperation and Law n ° 83-657 of July 20, 1983 relating to the development of certain social economy activities; in the departments of Moselle, Bas-Rhin and Haut-Rhin, they are formed in the form of associations governed by the local civil code or craft cooperatives.

“Unless they come under Title II of Book V of the Rural Code, existing cooperative societies also have the right to develop, for the exclusive benefit of their members, the activities mentioned above. In this case, the provisions of this chapter are applicable to them, under conditions fixed by decree of the Council of State. ”

III. – Article L. 127-8 of the same code is thus reinstated:

“Art. L. 127-8. – Without prejudice to branch agreements or professional agreements applicable to employers ‘groups, professional organizations representing the employers’ groups referred to in Article L. 127-7 and representative employee unions may conclude collective agreements of work on the versatility, mobility and part-time work of the employees of the said groups. ”

IV. – In VII of article 27 of law n ° 2000-37 of January 19, 2000 relating to the negotiated reduction of working time, the words: “fifth and sixth” are replaced by the words: “sixth and seventh” .

Article 21


Section I of Article L. 310-2 of the Commercial Code is supplemented by a paragraph worded as follows:

“Individuals not registered in the Trade and Companies Register are authorized to participate in unpacking sales with a view to selling only objects personal and used twice a year at most, provided that they have their domicile or secondary residence in the municipality, intermunicipal or departmental district or, for the cities of Lyon, Marseille and Paris, in the district municipal seat of the event. The terms of application of this paragraph are set by decree of the Council of State. ”

 

Article 22


After Chapter IV of Title II of Book I of the Labor Code, a Chapter IV bis is inserted as follows:


” Chapter IV bis

“Time-share work
“Art. L. 124-24. – For the purposes of this chapter, a timeshare work company is any natural or legal person whose exclusive activity consists, notwithstanding the provisions of Article L. 125-3, in making available to client companies of the qualified personnel that they cannot recruit themselves because of their size or their means.

“The employees made available are made available for assignments which may be full-time or part-time.

“Art. L. 124-25. – Without calling into question the principle of exclusivity affirmed by article L. 124-24, the time-sharing company can only provide its client companies with advice on skills management and training.

“Art. L. 124-26. – A contract is signed, for each individual secondment of an employee, between the time-sharing company and the client company. This contract specifies the content and estimated duration of the assignment, the professional qualification, the specific characteristics of the job or the functions held, the amount of remuneration and its various components.

“Any clause tending to prohibit hiring by the client company at the end of the mission is deemed prohibited.

“Art. L. 124-27. – An employment contract is signed between the seconded employee and the time-sharing company. This employment contract is deemed to be of indefinite duration.

“Its termination is effected in accordance with the provisions of section 2 of chapter II of title II of book II of this code.

“It also includes a clause for the repatriation of the employee at the expense of the timeshare company in the event that the provision is made outside the metropolitan territory. This clause becomes null and void in the event of termination of the contract at the initiative of the employee.

“Art. L. 124-28. – The remuneration paid to the seconded employee may not be lower than that of an employee with the same or equivalent level of qualification occupying the same position or the same functions in the client company.

“Art. L. 124-29. – Employees bound by the contract mentioned in Article L. 124-26 have access, in the client company, under the same conditions as the employees of this company, to public transport means and collective facilities, in particular catering , from which these employees can benefit; when, as a result, additional expenses are incumbent on the works council, these must be reimbursed according to the terms defined in the contract mentioned in article L. 124-26.

“Art. L. 124-30. – Throughout the duration of the provision, the user company is responsible for the conditions of execution of the employment contract as determined by those of the legislative measures,

“Art. L. 124-31. – Without prejudice to the concept of exclusivity affirmed by Articles L. 124-1 and L. 124-24, temporary employment companies may exercise the activity defined by this chapter.

“Art. L. 124-32. – Any time-sharing company is required, at all times, to provide proof of a financial guarantee ensuring, in the event of default on its part, the payment of:

“- wages and accessories;

“- compulsory contributions due to social security bodies and social institutions. ”

Article 23


A “Living Heritage Company” label has been created which can be awarded to any company which owns an economic heritage, composed in particular of rare, renowned or ancestral know-how, based on the mastery of traditional or high-tech techniques and circumscribed to a territory.

The “Living Heritage Company” label is awarded according to criteria and procedures defined by decree of the Council of State.

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