Doing Business In... 2019 Comparisons

Last Updated July 15, 2019

Law and Practice

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McDermott Will & Emery partners with leaders around the world to fuel missions, knock down barriers and shape markets. With 20-plus locations on three continents, the team works seamlessly across practices, industries and geographies to deliver highly effective – and often unexpected – solutions that propel success. More than 1,100 lawyers strong, the firm brings its personal passion and legal prowess to bear in every matter for its clients and the people they serve. Its expertise extends through antitrust and competition, corporate and transactions, employee benefits, employment, global privacy and cybersecurity, intellectual property, litigation and dispute resolution, private client and wealth management, regulatory, tax and white-collar matters. The firm views transactions not as one-off events but rather as critical steps in a comprehensive, long-term strategy. Its lawyers work to understand clients’ objectives and how they fit into an overall plan, helping them to make effective decisions that bring immediate results and set the stage for future value creation.

France is a civil law jurisdiction where most laws are codified. In the administrative law sphere, case law is paramount as legal precedents are established by judges. In judicial matters, judges also have an important role to play in the sense that they interpret and apply the law – they do not, however, create new laws.

The judiciary, which is independent from the other powers existing in France (ie, executive and legislative powers), comprises two main branches: the judicial branch and the administrative branch. The judicial branch comprises civil and criminal courts, which deal respectively with civil and criminal matters. The administrative branch comprises administrative courts, which deal with administrative/public law disputes. Each of these two branches has several levels of courts, from district courts to courts of appeal, and then to the supreme court. The Cour de Cassation is the supreme court for civil and criminal matters, and the Conseil d’État is the supreme court for administrative/public law matters.

In general, foreign investments in France are unrestricted (Article L. 151-1 of the French Monetary and Financial Code – MFC). However, in order to ensure the protection of French national interests, investments in certain sectors considered as strategic and 'sensitive' require the prior authorisation of the French Minister for the Economy. Pursuant to Article L. 151-3 of the MFC, foreign investments in any sector, that is even occasionally related to the exercise of public authority or pertains to activities likely to jeopardise public policy, public safety or national defence interests and to activities related to research and trade in weapons, munitions and explosives are subject to prior authorisation.

Prior authorisation is required only when the following transactions are contemplated:

  • for any investor (ie, from EU as well as non-EU countries):
    1. the acquisition of a controlling interest (ie, majority of voting rights) in a French company or
    2. the acquisition of all or part of a business line by a foreign investor;
  • for investors from countries outside of the EU: the acquisition of interests exceeding 33.33% of equity or voting rights in a French company.

For EU investors, investments subject to prior authorisation are:

  • activities relating to cryptology equipment and services;
  • activities carried out by companies holding national defence secrets, in particular in respect of classified national defence contracts;
  • activities relating to research, development, trade in weapons, ammunition, powders and explosive substances intended for military purposes;
  • activities carried out by companies having entered into a contract for the study, or supply of equipment to the Ministry of Defence, either directly or by subcontracting, relating to dual-use goods, means of cryptology, activities covered by national defence secrecy and weapons;
  • activities related to the integrity, safety and continuity of supply of water, electricity, gas, hydrocarbons, transport services and telecommunications services, space operations, electronic communications networks, electronic and computer systems used by the national police and activities related to the protection of public health;
  • research and development activities relating to cybersecurity, artificial intelligence, robotics, additive manufacturing and semiconductors;
  • research and development activities relating to dual-use goods; and
  • activities relating to the storage of data whose disclosure is likely to harm strategic interests.

For non-EU investors, investments subject to prior authorisation include the abovementioned activities, together with investments in:

  • gambling (excluding casinos);
  • activities related to private security services;
  • research, development or production activities relating to means of countering the illicit use of pathogenic or toxic agents in the context of terrorist activities;
  • activities relating to equipment to intercept communications;
  • activities relating to the evaluation and certification of systems used in information technology;
  • activities of production of goods in the field of information systems security carried out, including as a subcontractor, for the benefit of an operator operating facilities, the unavailability of which could significantly reduce the nation’s war or economic potential, security or capacity for survival; and
  • activities related to dual-use goods.

In addition, EU investors are also required to seek ministerial authorisation to make investments in the last six sectors listed above, but only when those investments consist of the acquisition of all or part of a business line of a French company.

The request for authorisation must be notified to the Treasury Directorate within the Ministry for the Economy and the authorisation must be obtained prior to the completion of the contemplated transaction.

The authorised investment transaction must also be declared to the Minister for the Economy as soon as it has been completed.

The investor and the target company may file a preliminary request ('rescript') to the Minister for the Economy to obtain confirmation of whether or not the contemplated investment is subject to the requirement for prior authorisation. The Minister must reply within two months of receipt of the request. Unlike the request for authorisation itself, lack of response within this period does not mean that the authorisation is deemed granted.

Prior to the completion of any transaction, the investor has to send a request for authorisation to the Treasury Directorate. This request must outline the proposed transaction and provide basic corporate information about the investor. Upon receipt, the Treasury Directorate will conduct a review of the transaction and will respond within two months, failing which the authorisation is deemed granted.

The Minister is required to refuse to grant the authorisation when he or she believes that:

  • there is a serious presumption that the investor concerned has committed the offences of drug trafficking, abuse of weakness, procuring, money laundering, terrorism, corruption and criminal association; or
  • the conditions attached to the completion of the operation are insufficient to protect French national interests, because:
    1. the sustainability of industrial capacities would not be preserved;
    2. the integrity, safety and continuity of operation of transport and telecommunications networks and the protection of public health would not be guaranteed; or
    3. the contractual obligations of a company holding a public contract relating to public security, national defence and the production of and trade in arms, ammunition and explosives would be compromised.

Non-compliance with foreign investment regulations may lead to exposure to both criminal and administrative sanctions.

Criminal sanctions may be imposed on the investor, including imprisonment for up to five years, seizure of the investment and a fine of up to twice the amount of the investment (multiplied by five if legal entities are held liable). Additional sanctions against legal entities include the shutdown of the establishment for five years or the exclusion from public procurement.

With regard to administrative sanctions, the PACTE Law No 2019-486 of 22 May 2019 strengthens the powers of the Minister for the Economy to issue injunctions and impose financial penalties in the case of a breach of the foreign investment regulations. The Minister may direct the investor to submit a request for authorisation, modify the investment and have the previous situation restored at its own expense.

If the protection of national interests is compromised, the Minister for the Economy may suspend voting rights attached to the shares themselves, prohibit the distribution of dividends, or suspend the free disposal of all or part of the assets related to activities subject to authorisation.

In addition, if the company does not comply with the obligations attached to the authorisation, the Minister may decide to withdraw the authorisation, direct the company to comply with these obligations or substitute new obligations for the former.

Lastly, the Minister is also given power to impose a financial penalty when an investment is carried out without prior authorisation, in instances when the authorisation has been fraudulently obtained or when the operator fails to comply with the conditions laid down in the authorisation. The maximum penalty will be the greater of the following amounts: twice the amount of the unapproved investment, 10% of the annual turnover excluding tax of the target company, EUR1 million for natural persons and EUR5 million for legal persons.

The authorisation of the Treasury Directorate may be contingent upon specific undertakings by the investor aiming at ensuring that the contemplated investment does not jeopardise French national interests, such as:

  • undertakings to preserve the business operations, the industrial, R&D and related know-how capacities;
  • undertakings to preserve safety of the supply chain;
  • guaranties as to the performance by companies that have their registered office in France under procurement contracts, whether as contractor or subcontractor, or contracts concerning public safety, national defence or research, or the production or trading of weapons, ammunitions or explosives; or
  • should the Strategic Business Sector for which authorisation is required be an ancillary business of the target company, sale of this ancillary business to a company independent from the investor.

In the event the Treasury Directorate refuses to grant the authorisation, an appeal may be filed within two months of the decision to the Administrative Court, which may decide to annul the refusal. The jurisdictional procedure may last a little over a year. 

The appellant needs to demonstrate that the refusal is based on an error of law and manifest misappraisal of the facts, or the Minister has failed to comply with the authorisation procedure.

The most common forms of legal entities in the commercial arena in France are the Société Anonyme (SA), the Société à Responsabilité Limitée (SARL) and the Société par Actions Simplifiée (SAS).

SA

The SA is a limited liability company whose shares can be listed on a stock exchange. The minimum share capital of an SA is EUR37,000. An SA must have a minimum of two shareholders (private SA) or seven shareholders (public SA).

This type of entity is mainly suited to large businesses potentially contemplating a listing on a stock exchange.

Transfers of shares in an SA are unrestricted, unless the articles of association or a shareholders’ agreement provide otherwise, and are carried out by way of execution of a transfer form and registration in the corporate books of the SA. Share transfers are subject to registration tax.

SARL

The SARL is a limited liability company which may be formed with only one shareholder. Unlike in an SA, the minimum share capital is only EUR1.

The SARL form was very commonly used for small businesses before the SAS form was introduced into French law.

Share transfers must be effected in accordance with certain legal obligations and formalities (other than in the case of transfers between existing shareholders) and may also be restricted by the articles of association or a shareholders’ agreement. The transfer of shares to a third party requires the prior approval of a majority of the shareholders representing at least half of the share capital. In the absence of this approval, the non-selling shareholders must acquire or procure the acquisition of the transferring shareholder’s shares, except if the transferring shareholder has in the meantime decided not to pursue the transfer. Share transfers are subject to registration tax.

In SARLs, the articles of association must be updated when shares are transferred, as the articles of association must contain an up-to-date list of shareholders along with details of their shareholdings. The articles of association of SARLs are available to the public.

SAS

The SAS is a limited liability company which may also be formed with a sole shareholder. As in the case of SARLs, the minimum share capital of an SAS is EUR1.

The SAS is commonly used by domestic and foreign investors due to its flexibility. It is notably the preferred vehicle for small businesses, French subsidiaries of international groups and joint ventures.

Although SASs cannot offer securities to the public (as opposed to SAs), they are allowed to raise capital through private placements.

Transfers of shares in an SAS are unrestricted, unless the articles of association or a shareholders’ agreement provide otherwise, and are carried out by way of execution of a transfer form and registration in the corporate books of the SAS. Share transfers are subject to stamp duty.

The main steps of the incorporation process for the corporate vehicles described in 3.1 Most Common Forms of Legal Entities, above (ie, SAs, SARLs and SASs) are the following:

  • preparation and execution of the relevant corporate and contractual documentation (generally the articles of association, a lease or domiciliation agreement for the registered office premises and an auditor’s report, as well as a contribution agreement in the case of contribution in kind);
  • in the case of cash contribution, opening of a bank account and transfer of the amount of the share capital to such bank account;
  • completion of the relevant formalities with the trade and companies registry and the tax authorities; and
  • issuance of the certificate of incorporation (first 'Kbis' extract) by the trade and companies registry, which evidences the fact that the company is legally formed.

The incorporation process is generally quick and straightforward. The company is usually incorporated between three to seven days from the date on which the final set of required documents is filed. The PACTE Law No 2019-486 of 22 May 2019 established a simplified, entirely digitalised process, which should be in place in 2021.

It should be noted that opening a bank account (which is a requirement for setting up a company in the case of a cash contribution) may take some time due to anti-money laundering requirements imposed by banks.

In France, private commercial companies must comply with certain reporting and disclosure obligations, although not as many as public companies.

With respect to the SA, SARL and SAS, legal representatives must prepare an annual management report, which is presented to the shareholder(s) before they make(s) a decision on the approval of the relevant annual accounts, it being noted that such a shareholder decision must be taken within six months of the end of the previous financial year (with possibilities to extend this timeframe).

Once shareholder approval has been obtained, such companies are required to file their annual accounts along with related corporate documentation with the trade and companies registry. This filing must take place within one month of the shareholder decision approving the annual accounts. Subject to specific criteria being satisfied, certain small companies may request that their annual accounts remain confidential.

Amendments to the articles of association, changes of legal representatives, increase or decrease of the share capital, etc, require the filing of the relevant corporate documentation with the trade and companies registry.

An ultimate beneficial owner form must be filed with the trade and companies registry within 15 days of incorporation. This form must also be filed when the ultimate beneficial owner of the company subsequently changes. The ultimate beneficial owner(s) of a company is/are the individual(s) who own(s) at least 25% of the share capital or voting rights of a company, or otherwise control(s) its management or shareholders’ meeting, directly or indirectly.

SA

Two types of management structures exist for SAs: 

  • One-tier structure: a board of directors (Conseil d’administration) determines the business strategy of the SA and oversees the actions of the managing director (and his or her deputies, if applicable) who is in charge of the day-to-day management of the SA. The managing director can be the chairman of the board of directors. The managing director and his or her deputies must be individuals.
  • Two-tier structure: an executive board (Directoire), composed of individuals only, manages the SA while a supervisory board (Conseil de surveillance) oversees the actions of the executive board and determines the business strategy of the SA.

In large SAs, board committees are usually put in place (eg, strategic committee, audit committee, compensation committee, etc).

The directors and officers have broad powers to act on behalf of the company, subject to powers granted by law to the shareholders. Certain decisions are reserved to the shareholders, such as decisions relating to the amendment of the articles of association, share capital increases and changes to the corporate purpose of the SA.

SARL

The management structure of an SARL consists of one or more managers, who may be shareholders but must be individuals.

The managers have broad powers to act on behalf of the company, subject to powers granted by law to the shareholders.

SAS

There is only one legal requirement in terms of the governance in an SAS: the existence of a president as legal representative of the company.

The president – who need not be an individual (ie, who may be a legal entity) – has broad powers to act on behalf of the SAS.

Apart from the legal requirement to appoint a president, the shareholder(s) can freely provide for a tailored governance structure in the articles of association and/or in a shareholders’ agreement. For example, it is possible to have one or several deputy managers with powers that can be equivalent to those of the president and/or a board of directors, a supervisory board or an executive committee to approve certain strategic management decisions.

Directors and Officers

A derivative civil action against one or more directors and/or officers of a company may be initiated by the legal representative of the company or by a shareholder/shareholders (at their own cost) acting on behalf of the company against the relevant director(s)/officer(s). Such an action would seek indemnification for the company (not the claiming shareholder(s), if applicable) in the event the latter has suffered a loss. Shareholders can also initiate an action to seek indemnification for a damage suffered by them directly as a result of a fault on the part of the relevant director(s)/officer(s). The term 'fault' includes breaches of laws and regulations applicable to the relevant company, breach of the company’s articles of association and mismanagement (ie, acting in a way that is obviously contrary to the corporate interest of the company).

Directors and officers are rarely held liable towards third parties due to the existence of the separate legal personality of the company. However, third parties may in limited circumstances bring legal actions if the director(s)/officer(s) concerned has/have acted outside the course of their functions.

Directors and officers may also be held criminally liable for their actions, but only in limited circumstances (eg, misuse of corporate assets).

D&O liability insurance and indemnification

D&O liability insurance is available in France, it being noted that criminal fines, as well as civil fines, cannot be insured. Intentional faults on the part of directors and officers cannot be insured either. In practice, large companies, and in particular listed companies, subscribe to such policies for their directors and officers and usually pay for the related premiums.

In practice, in the French market, no indemnification is provided by the company to its directors and officers if their personal liability is claimed, contrary to what can be seen in certain other jurisdictions.

Shareholders

The principle is that the liability of shareholders in SAs, SARLs and SASs is limited to their share capital contributions. There are, however, exceptions to this principle.

A third party may initiate legal action against one or more shareholders if the relevant shareholder(s) has/have committed actions, outside the course of their usual shareholder prerogatives, which are intentional and amount to gross misconduct. In practice, such legal actions are usually only brought in the context of insolvency proceedings.

In addition, if a shareholder were to be involved in the day-to-day management of the company, the shareholder may be deemed to be a de facto manager of the company. Such qualification will depend on the facts. Should a shareholder be considered to be a de facto manager, the sanctions applicable to statutory managers will apply to him/her/it.

French employment law is based on several legal sources, listed below in order of priority:

  • European regulations and other international treaties;
  • French Constitutional law;
  • the French Labour Code;
  • collective bargaining agreements (CBAs) entered into between employee unions and employer professional organisations:
    1. national and multi-industry-wide CBAs;
    2. national and individual-industry-wide CBAs;
    3. regional and industry-wide CBAs; and
    4. company CBAs;
  • companies’ common practices and unilateral decisions (usages and décisions unilatérales); and
  • individual employment contracts.

In principle, a legal source can only provide for a more favourable standard than the legal source immediately above in the hierarchy.

A major exception to this principle results from a legal reform dated 22 September 2017, which now allows a simple company CBA to provide for a less favourable standard than the higher CBAs’ standard in many areas, such as compensation, working time and geographical mobility.

An employment contract exists whenever one party undertakes, in consideration for a salary, to make her/his services available to the other party and places herself/himself under the legal, operational and disciplinary supervision of this other party (subordination).

The two most common types of employment contracts are indefinite-term and fixed-term contracts. Both can be entered into either on a full- or a part-time basis.

Fixed-term contracts cannot be used to fill permanent positions. They are only allowed to fill temporary needs under specific circumstances: temporary increase of activity; replacement of absent employees; seasonal work; and temporary assignments for highly skilled employees/engineers.

An employment contract usually sets out, inter alia, the employee’s job title, duties, remuneration, working time, notice period for resignation and trial period (during which the employer is free to terminate the employment relationship at will if it is not satisfied with the employee’s performance), mobility provision and restrictive covenants (non-compete and non-solicitation provisions).

The employer cannot unilaterally amend the material terms of the employment contract. On the contrary, minor changes can be made without the employee’s prior consent. The employee’s refusal to comply with minor changes can constitute misconduct justifying a dismissal. The distinction between 'material' and 'minor' changes is assessed on a case-by-case basis: changes in the nature of the duties or level of compensation would be deemed material, while the mere change of the place of work within a certain scope would simply be considered as a minor change.

The standard weekly working time is 35 hours. This does not mean that work cannot be performed beyond 35 hours. First, some employees are hired on the basis of extended weekly working time. Secondly, employees hired under the 35-hour standard can work more than 35 hours provided they are paid overtime (25% more for the first eight hours and 50% more beyond, unless provided otherwise by a CBA) or offered equivalent time off.

Employees who benefit from autonomy in the performance of their duties and from a high level of responsibility and compensation often work under special working time arrangements, which exclude overtime payment.

First, top executives (cadres dirigeants) are legally excluded from the scope of the standard 35 hours' working time, and even from most of the working time regulations.

Second, autonomous white collar workers (cadres autonomes) can agree to work 218 days a year in consideration for a lump-sum salary (forfait jours). This working time arrangement requires the employer to monitor the employees’ workload and to document it. Moreover, since 8 August 2016, employers must make sure that employees comply with their 'right to disconnect' from their professional devices, in order to ensure a good balance between their professional and personal lives. This is a challenge given that these employees are supposed to be 'autonomous' in the management of their own working time.

Employment contracts can be terminated in different ways: by the employer (dismissal); by the employee (resignation); by both parties (amicable termination agreement); by the judge (judicial termination); due to the age of the employee (retirement); by virtue of the expiration of the contractual term (fixed-term contracts); by virtue of a force majeure situation; or by virtue of the disappearance of one or both parties.

Employers can only terminate an employment contract on the basis of personal grounds (poor performance, gross negligence or wilful misconduct) or economic grounds (financial difficulties, technological changes or the necessity to safeguard the competitiveness of the company). Economic grounds must be assessed globally at the level of the company’s operations in France and in the sector of activity to which it belongs.

A standard disciplinary dismissal process would require the employer to:

  • invite the employee to a meeting (on five business days' notice);
  • explain the reasons for the contemplated dismissal during the meeting and listen to the employee’s comments; and
  • send a written dismissal letter (no earlier than two business days following the meeting).

The steps for an individual economic dismissal process would be similar to the process described above with additional motivation and redeployment obligations.

A collective dismissal impacting fewer than ten employees requires the employer to:

  • inform and consult its works council (now called the CSE – see 4.5 Employee Representations, below);
  • invite each impacted employee to a formal meeting; and
  • inform the French labour administration of the mass dismissal.

A collective dismissal impacting ten or more employees is longer and more complex. The employer must comply with the following obligations:

  • the economic rationale needs to be detailed in a memorandum communicated to the works council;
  • the employer must inform and consult the works council (it also has to inform different stakeholders, such as the French Labour Authorities);
  • the employer must make its best efforts to identify available positions matching the impacted employees' professional qualifications – practically, the employer needs to prepare a memorandum setting forth redeployment solutions (also called social plan);
  • the social plan can be negotiated with union representatives or alternatively determined unilaterally by the employer. In any case, it needs to be 'discussed' with the works council; and
  • in order to ensure that no discrimination affects the collective dismissal, the employer has to proceed as follows:
    1. establish the list of eliminated jobs;
    2. establish the impacted professional pools (ie, the groups of employees performing similar duties, with comparable professional training/academic backgrounds, and whose roles are interchangeable);
    3. establish a list of dismissal selection criteria, including the number of dependent relatives, the length of service, any situation which would make finding new employment particularly difficult (disabled or senior employees), the employee’s skills assessed in light of his/her pool, etc; and
    4. once the social plan is approved by the labour authorities, apply the selection criteria within the professional pools to move from a list of jobs to a list of names.

French law gives employers and unions the possibility to enter into a collective amicable termination agreement. This agreement determines the number of redundant employees, the financial terms and conditions of the dismissal, and the available redeployment measures. The works council must be consulted on this agreement and the French labour administration’s approval is requested.

Damages for abusive termination granted by a court to a dismissed employee vary depending on the length of service of the employee. However, they are capped depending on the seniority of the employee, which offers a greater foreseeability and certainty in the risk assessments and the litigation management, although several labour courts have recently ruled that they were not bound by the legal cap. We expect the Supreme Court and/or the legislator to clarify this situation soon.

Until recently, a company could have up to three different elected employee representative bodies: staff delegates (11 or more employees), works council and health and safety committee (50 or more employees).

These three bodies have been replaced by one single new works council called the 'Social and Economic Committee' (CSE). By 1 January 2020, all companies employing 11 or more employees over 12 consecutive months must have put a CSE in place.

In companies with more than 50 employees, the CSE must be consulted on the strategic orientation, financial and economic situation, and any contemplated reorganisation which could affect the size or structure of the workforce (eg, economic dismissals).

The union representatives and the employer can agree to transform the CSE into a 'Company Counsel' (Conseil d’Entreprise) which would have, in addition to the role of the CSE, an exclusive negotiation power to enter into CBAs with the employer.

French personal income tax on employment income is withheld by the employer from the employee’s paycheck, at progressive rates up to 45%.

The same applies for French social security contributions, which are assessed at progressive rates up to approximatively 40% for the employer share and up to approximatively 20% for the employee share.

French Corporate Income Tax (CIT)

French CIT is levied on a territorial basis: companies are subject to CIT mainly on net income and gains derived from business operated in France and from real estate assets located in France.

The top CIT rate for 2019 is 31%, increased to approximately 32% (taking into account a 3.3% social surtax assessed on the CIT liability if the CIT amount exceeds EUR763,000).

The most notable tax exemptions include the following participation-exemption rules:

  • Dividends derived by a French company from subsidiaries in which the French company has owned at least 5% of the share capital for at least two years, which are 95% exempt.
  • Capital gains on the disposal by a French company of shares in subsidiaries in which the French company has owned at least 5% of the share capital and voting rights for at least two years, which are 88% exempt.

A special 10% rate applies to income and gains derived from certain intellectual property rights (such as patents). Reduced rates also apply to income and gains derived from investments in private equity entities and capital gains on the disposal of shares in listed real estate companies. 

French Withholding Taxes (WHT)

Outbound dividends are subject to WHT assessed at the rate of 12.8% for individuals and 30% for companies unless the shareholder can rely on the provisions of the EU Parent-Subsidiary Directive or the relevant double tax treaty.

Outbound royalties as well as income derived as a consideration for services rendered or used in France are subject to WHT at the rate of 33.33% unless the recipient can rely on the provisions of the relevant double tax treaty or, for royalties, the EU Interest and Royalties Directive.

Outbound interest payments are generally exempt from any WHT.

French Value-added Tax (VAT)

French VAT is levied on any supply of goods or services realised for a valuable consideration by any person carrying out an economic activity in France, pursuant to VAT territoriality rules.

There are four different VAT rates applicable in France: a standard VAT rate of 20%, an intermediate rate of 10%, and two reduced rates of 5.5% and 2.1%, which apply to supplies of certain goods and services.

Several VAT exemptions apply to exports and EU supplies of goods and services, and to most financial services.

VAT incurred by a taxpayer on the acquisition of goods or services (input VAT) is deductible from the VAT invoiced by the taxpayer in the course of its business (output VAT), to the extent that the acquired goods or services are used to carry out an activity subject to VAT without benefiting from an exemption. Any excess input VAT is reimbursed.

French Business Tax

Companies operating a business in France are generally liable for the French business tax, which includes two different taxes: the CFE and the CVAE.

The CFE is assessed on the gross cadastral rental value of real estate assets available to the relevant companies, and used in the course of their business. The CFE rates are determined by local authorities, and may therefore vary significantly from one location to the other.

The CVAE is due by companies whose annual turnover exceeds EUR500,000. It is assessed on the added value generated by the companies, capped at 80% or 85% of their annual turnover (depending on whether the turnover exceeds EUR7.6 million or not). The CVAE standard rate is 1.5%. Companies whose turnover does not exceed EUR50 million benefit from progressive CVAE reliefs, resulting in a lower effective CVAE rate.

The sum of the CFE and the CVAE due by a company must not, however, exceed 3% of the company’s added value.

Companies subject to French CIT may benefit from various credits.

The most notable one is the R&D tax credit, equal to 30% of eligible R&D expenses (mainly including compensation paid to employees who perform R&D activities) below EUR100 million, and 5% above EUR100 million. Small and medium-sized enterprises are eligible for an additional innovation tax credit equal to 20% of eligible innovation expenses, which are capped at EUR400,000 per year.

Companies subject to French CIT are entitled to form a tax-consolidated group for CIT purposes provided that:

  • the parent company of the group is subject to CIT in France and 95% or more of its share capital is not owned by another company subject to CIT in France;
  • the subsidiaries are subject to CIT in France and at least 95% of their share capital is owned, directly or indirectly, by the parent company of the group;
  • the parent company of the group and its subsidiaries have, in principle, the same fiscal years, the duration of which does not exceed 12 months; and
  • both the parent company of the group and its subsidiaries file an election to be part of the same group.

Sister companies subject to French CIT whose direct or indirect parent company is established in an EU member state or an EEA state are also entitled to form a horizontal tax-consolidated group including their French subsidiaries.

Companies subject to French CIT may face the following limitation rules:

  • Interest incurred on loans granted by direct shareholders and controlling entities is deductible within the limit of a maximum interest rate published by the French tax authorities or, in regard to loans granted by controlling entities, the market rate, where the borrower can evidence that the market rate in this specific case would be higher.
  • Interest incurred on loans granted by controlling entities is only deductible if the borrower can evidence that the recipient is subject to a minimum income tax rate equal to 25% of the French standard CIT rate.
  • Net financial expenses (ie, the positive difference between financial expenses and financial income) are deductible up to the greater of 30% of the restated EBITDA or EUR3 million, unless the borrower is thinly capitalised (ie, the amount of its debt towards controlling entities, on a stand-alone or on a tax-consolidated group basis, exceeds 1.5 times the amount of its (or the group’s) net equity, in which case lower thresholds apply).
  • Interest incurred in connection with the purchase of shares in a company that joins the tax-consolidated group of the acquiring company is limited where the shares are acquired from a controlling person.

French transfer pricing rules generally follow the OECD guidelines and principles. Multinational companies with French operations must consequently ensure that the pricing of intercompany transactions meets the arm's length standard.

French companies whose annual turnover or gross asset value exceeds EUR400 million or are controlled by a French or foreign entity exceeding one of these thresholds, or are part of a tax-consolidated group including a company exceeding one of these thresholds, are required to prepare a full transfer pricing documentation package to be made available to the French tax authorities in the course of a tax audit.

French companies which meet an equivalent threshold of EUR50 million are also required to file a simplified transfer pricing declaration annually, within the six-month period following the deadline for filing CIT returns.

Special rules aim at including net income generated by a controlled foreign corporation (CFC) in the French parent company’s tax base where:

  • the French parent company holds, directly or indirectly, more than 50% of the CFC’s share capital, voting rights or financial interests (or more than 5% if more than 50% of the CFC is owned by companies that are established in France or control/are controlled by companies established in France); and
  • the CFC is liable to an amount of taxes in its jurisdiction that is less than 50% of the amount of taxes that it would have been liable to had it been established in France.

The above rules do not apply if the owning of shares in the CFC or the activities performed by the CFC do not constitute an artificial arrangement to avoid or reduce French taxes (if the CFC is located within the EU), or the business of the CFC is effectively carried out in its jurisdiction (if the CFC is located outside the EU).

Special rules aim at discouraging French companies from doing transactions with non-co-operative states and territories (NCSTs) (currently including Botswana, Brunei, Guatemala, the Marshall Islands, Nauru, Niue, and Panama), subject to the following safe-harbour rules:

  • WHT rates applicable to outbound income paid to these jurisdictions are increased to 75%.
  • Interest payments and service fees paid to these jurisdictions are not deductible for French tax purposes.
  • The participation-exemption rules do not apply to dividends and capital gains derived from these jurisdictions.

France has a long-standing tradition of being open to the conduct of business, while consumer protection is also integral to France’s economic policy.

Companies and, in certain instances, individuals, infringing competition law may face sanctions. The French Competition Authority (FCA) enforces relevant rules, although in limited cases enforcement is by French commercial courts, with appeal possible to French judicial courts.

Mergers may be subject to either EU or French merger control rules. If the applicable EU notification turnover thresholds are met, then companies have the 'one-stop-shop' benefit of notifying only the European Commission. If the applicable French notification turnover thresholds are met, then companies must comply with French notification requirements.

Under French and EU merger control rules notification is mandatory, and must be completed before the closing of the transaction and implementation of any reportable 'concentration'. Transactions that must be reported to the FCA or the Commission are those:

  • considered to be a 'concentration' within the meaning of competition law, ie, a transaction involving a change in the nature of the control of the target company; and
  • meeting the relevant EU or French turnover thresholds.

A 'concentration' is a broad concept defined under EU and French law. Apart from 'standard' mergers and joint ventures, the acquisition of direct or indirect control over a company is also considered to be a 'concentration'. Control is defined as the possibility of exercising decisive influence over a company, considering both legal (including shares and voting rights) and factual elements.

Significant sanctions may be imposed for implementing a reportable concentration without prior notification or before receiving clearance (up to 5% of the French pre-tax turnover at the French level and up to 10% of the worldwide pre-tax turnover at the EU level).

In the absence of an extension (eg, to negotiate commitments or to 'stop the clock'), the FCA or the Commission must issue a decision within 25 business days of receipt of a completed notification either to:

  • authorise the concentration, with or without commitments (Phase I); or
  • open an in-depth investigation (Phase II).

From the opening of Phase II, in the absence of an extension, a decision must be issued by the FCA within 65 business days for France or by the Commission within 90 business days for the EU.

In France, the Minister for the Economy and Finance may review the FCA’s decision and determine for reasons of general interest to override it.

Transactions not raising any competition concerns, including those involving investment funds, are generally cleared before the end of the 25-business day deadline. Furthermore, both the FCA and the Commission generally favour the granting of conditional authorisations at the end of Phase I rather than pursuing in-depth investigations (Phase II).

While carrying out an in-depth investigation, the FCA and the Commission apply a test to assess the effects of the concentration on competition. This test aims at determining whether such concentration may significantly impede competition, in particular through the creation or strengthening of a dominant position.

The analysis carried out by the FCA and the Commission of the effects of a transaction takes into account several factors that may offset the anti-competitive effects which have been identified, such as any substantiated efficiency gains brought about by the concentration.

If serious anti-competitive effects are identified which cannot be sufficiently mitigated by any positive effects, the contemplated concentration will either be prohibited or authorised subject to commitments to restore competition.

Both French and EU law prohibit cartels and other anti-competitive agreements/concerted practices.

Companies infringing the relevant competition rules are subject to fines of up to 10% of aggregate worldwide pre-tax turnover. Moreover, under French law, in limited circumstances, individuals may also be criminally prosecuted (although this has never been applied in practice).

Both French and EU law prohibit abuses of a dominant position. French law also specifically prohibits abuses of a state of economic dependency and certain other types of unilateral restrictive practices, even if implemented by a company that is not in a dominant position (ie, does not have a significant market position).

When a company has participated in an anti-competitive practice (cartel, abuse of a dominant position, abuse of a state of economic dependency), it may apply for leniency by reporting the infringement to the FCA or to the Commission in order to obtain full or partial immunity from fines. Among other conditions, leniency requires that the company put an immediate end to its involvement in the anti-competitive practice(s) concerned, and that it genuinely and fully co-operates with the FCA or the Commission. Full immunity for a violation can only be obtained by the first company applying for leniency. If the company is not the first to apply for leniency, whether or not it can obtain a reduction in the fine will primarily depend on its place in the queue of companies applying for leniency and the added value of the information provided by the applicant. A reduction may be up to 50% of the fine that would otherwise have been imposed.

Where an investigation of a company has already been initiated by the FCA or the Commission, leniency may still be possible. Several other options are available according to which such a company may:

  • defend itself in challenging the objections raised by the FCA or the Commission;
  • enter into a settlement procedure and waive the right to challenge the notified objections (in this case the General Rapporteur of the FCA communicates to the company a settlement proposal setting the minimum and maximum amounts of the fine); or
  • propose commitments to the FCA or the Commission to put an end to the anti-competitive practice(s) concerned. In practice, this is only possible for unilateral or vertical practices. This solution has the advantage of accelerating the resolution of cases in which the average timeframe for a final decision may range from three to six years.

A patent is an industrial property title relating to a technical invention, which can be either a process or a product, and grants its owner an exclusive right of use.

Under French law, in order to be patented, an invention must be:

  • new, ie, novel in relation to the prior art;
  • inventive, ie, not obvious to a person skilled in the art;
  • patentable, ie, it cannot constitute a discovery, a scientific theory, a mathematical method, an aesthetic creation, etc;
  • capable of industrial application; and
  • clear, ie, sufficiently comprehensive for the invention to be reproduced by a person with an average knowledge and ability in the relevant technical field.

Patents are registered with the French Industrial Property Office (Institut National de la Propriété Industrielle) (INPI). The INPI may refuse to grant a patent on substantial grounds (eg, the subject matter being excluded from patent protection) or formal grounds (eg, the name of the inventor being missing). The PACTE Law No 2019-486 of 22 May 2019 recently broadened the grounds for refusing to grant a patent and created opposition proceedings before the INPI.

The INPI will publish the patent application 18 months following its filing date or priority date.

The term of a French patent is 20 years from the filing date of the application. 

A patent infringement action can be brought by the patent holder. An exclusive licensee can also directly initiate a patent infringement action if certain requirements are met, or join the action brought by the patent holder. A non-exclusive licensee(s) may only join the procedure initiated by the patent holder to recover damages for its own loss.

Patent holders may seek remedy in the civil courts, mainly in the form of an injunction or damages. Civil remedies may also include, inter alia, the recall, confiscation, or destruction of the infringing products and the publication of the judgment.

An infringer may also face criminal liability in the form of a fine of up to EUR300,000 (or EUR750,000 in certain circumstances), and/or imprisonment for up to three years (or seven years in certain circumstances).

European patents may be granted by the European Patent Office through a single-grant procedure, as national patents, in the contracting countries to the European Patent Convention as designated in the application (38 countries in total).

A Unitary Patent system is also in an advanced stage of adoption. This is expected to offer a unitary protection in up to 26 EU member states (all 28 EU member states except Croatia and Spain and possibly the UK in case of Brexit).

A trade mark is a protected sign that distinguishes a company's products or services from those of other companies.

Signs (eg, words, numbers, graphic images, colours, holograms, shapes, slogans and/or sounds) that can be represented in an appropriate form using generally available technology may be registered as trade marks as long as the representation is clear, precise, self-contained, easily accessible, intelligible, durable and objective.

Trade marks are registered with the INPI. The application process includes a formal examination and a substantial examination, but does not include a search of prior rights. The publication of a trade mark application opens a two-month opposition period.

A trade mark is protected for ten years from its filing date and may be renewed indefinitely for subsequent periods of ten years.

A trade mark is said to be infringed when a sign which is identical or similar to such trade mark is used in relation to the same or similar goods and services and, in the case of similarity, is likely to cause confusion on the part of the public. The legislation provides for a specific protection for reputed and well-known trade marks. If another sign reproduces or imitates a reputed or well-known trade mark, and is likely to damage or unduly exploit the trade mark, then an infringement action can be initiated even if the signs relate to products or services that are not similar.

As for patents, a trade mark infringement action can be brought directly by the trade mark holder or by the exclusive licensee. Non-exclusive licensees may only join the procedure initiated by the trade mark holder to recover damages for their own loss.

In terms of remedies, the rules applicable to patents also apply for trade marks.

Trade marks can also be protected by European Union trade marks registered with the European Union Intellectual Property Office (EUIPO), which are valid throughout the 28 EU member states.

An industrial design protects the aesthetic or ornamental aspect of all or part of an object. A design may either be three-dimensional, based on the shape or surface of the object, or two-dimensional, based on the object’s patterns, lines or colours.

To be registered, an industrial design must:

  • be new, ie, no identical or almost identical design may have been made available to the public prior to the filing date;
  • be non-functional, ie, not consist of features solely determined by the object’s technical function; and
  • have an individual character, ie, produce the overall impression that it differs from any design disclosed to the public before the filing date.

Industrial designs are registered with the INPI. The INPI will review the application but will not conduct a search of prior rights or published art to ensure the design is new and has an individual character.

Unlike trade marks, designs cannot be challenged before registration. There is no opposition proceeding.

The publication of an industrial design can be postponed by a maximum of three years from the filing date.

A registered industrial design is protected for an initial term of five years, which can be extended in five-year increments up to a maximum of 25 years.

As for patents and trade marks, an industrial design infringement action can be brought by the design holder or by the exclusive licensee of the industrial design, if certain requirements are met. Non-exclusive licensees may only join the procedure initiated by the design holder to recover damages for their own loss.

The unauthorised use of a registered or unregistered design constitutes infringement. In terms of remedies, the rules applicable to patents also apply for industrial designs.

Designs can also be protected by:

  • registered Community designs;
  • unregistered Community designs which benefit from a shorter (three-year) and narrower protection; and/or
  • copyright law if the holder can prove that the design is 'original'.

Copyright law protects literary works, musical, graphic and plastic creations, as well as software, applied art creations, fashion creations, etc.

Performers, producers of videograms and phonograms and audiovisual communication companies also have rights related to copyright.

A work can be protected by copyright law when it is fixed in a material form and original (endowed with the personality of its author). Copyright does not protect ideas or concepts.

A creation is protected without formalities from the day it is created, whatever its form (written/verbal), its genre (painting/novel/photography), its merits (author’s talent) or its destination (purely artistic work/applied creation).

Copyright gives the author two types of rights:

  • Moral rights that protect the author from disclosure of his/her work without his/her consent, allow the author to use his/her name on the work or to remain anonymous, protect the integrity of the work (eg, protect the work from being modified), allow the author to decide to make changes (right of repentance) or to stop its distribution (right of withdrawal).
  • Economic rights that allow the author to prohibit or authorise the use of his/her work for free or in return for remuneration.

Moral rights are perpetual, inalienable and not subject to statutes of limitation, whereas economic rights last 70 years after the author’s death or after disclosure of the work when it belongs to a legal person.

In terms of remedies, the rules applicable to patents also apply for copyright.

Databases

Databases can be protected by both copyright law and a sui generis right when the database producer can demonstrate a substantial investment.

Geographical Indications

A specific protection is granted when a sign is used on products that have a specific geographical origin and qualities, notoriety or characteristics related to that place of origin.

Semi-conductor Topographies

Final or intermediary topographies of semi-conductor products (electronic circuits incorporated into chips) are protectable by an industrial property right, which grants to its holder an exclusive right of exploitation and reproduction for ten years from its filing date or from its first exploitation.

Software

Software programs can be protected:

  • by copyright law; and
  • by patent law if certain requirements are met (this is limited in practice since only protected technical innovations implemented through the program may be protected, ie, coding is not protectable).

Trade Secrets

Trade secrets are protectable without any procedural formalities and for an unlimited period. The information must:

  • be secret (not generally known or readily accessible among people who usually deal with this kind of information);
  • have commercial value because it is a secret; and
  • have been subject to reasonable steps to maintain its secrecy.

A recent law (No 2018/670, transposing Directive (EU) No 2016/943 of 30 July 2018) strengthened the regime for the protection of know-how by, in particular, providing for the possibility of obtaining measures, provisional or otherwise, to prohibit, destroy or recall products resulting from an infringement of a trade secret.

The main regulations applicable to personal data protection (hereinafter referred to collectively as the 'Data Protection Regulation') are:

  • Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR); 
  • Act No 78-17 of 6 January 1978 on information technology, files and freedoms and its application texts (the 'French Data Protection Act') as amended by Act No 2018-493 dated 20 June 2018 and Ordonnance No 2018-1125 dated 12 December 2018; and
  • Decree No 2019-536 dated 29 May 2019. 

The Data Protection Regulation applies to personal data processing which falls within the scope of this regulation and which is implemented by any establishment that is:

  • located in France ('establishment clause');
  • if not located in France, which targets French residents ('targeted business clause'); or
  • located in a place where French law applies by virtue of public international law.

The establishment clause has a very broad scope of application. It first applies where the establishment exercises any real and effective activity, even a minimal amount, through stable arrangements in France. For example, any French-based sales offices which promote or sell advertising or marketing, in particular, to French or EU residents, fall within the scope of the establishment clause. The Data Protection Regulation also applies where such establishment processes personal data of non-EU residents, “regardless of whether the processing takes place in the European Union or not” but provided the establishment remains the data controller.

In the case of a conflict between French law and the Data Protection legislation of other EU member states, the Data Protection Regulation provides that French law applies where data subjects are French residents. Such an exemption applies only if the data controller is not established in France, unless the processing is implemented for purposes of journalistic, academic, artistic or literary expression.

Under the targeted business clause, the Data Protection Regulation can apply where the processing activities are related to:

  • either the offering of goods or services (for free or against payment) to any data subject in France; or
  • the monitoring of their behaviour.

For offerings of goods and services (but not monitoring), mere accessibility of a site from France is insufficient. It must be clear that the legal entity intends to direct its activities to French data subjects. The use of the French language/currency, the ability to place orders in French and references to French users or customers will be relevant.

Alternatively, 'monitoring' specifically refers to any online tracking of individuals which aims at creating profiles, including where decisions rely on such profiling to analyse/predict personal preferences, behaviours and attitudes.

In practice, any legal entities meeting the targeted business clause must appoint a French-based representative.

Finally, the Data Protection Regulation also applies to the processing of personal data by a controller not established in the European Union, but in a place where French law applies by virtue of public international law. For example, any processing of personal data implemented by a French consulate in a third country, where member-state law applies by virtue of public international law, is subject to the Data Protection Regulation.

Assuming that the intended processing of personal data falls within the geographical scope mentioned above, it may not be subject to the Data Protection Regulation. French law excludes from it any temporary copies made in the context of technical operations of transmission and access provision to a digital network for the purpose of automatic, intermediate and transitory storage of data and with the sole aim of allowing other recipients of the service to benefit from the best access possible to the transmitted information. This exemption is intended, in particular, for internet service providers which store temporarily some data (eg, IP addresses and addresses of websites consulted), in order to more quickly serve future requests for that data (also called 'cache functionality'). 

The French data protection authority is called the Commission nationale de l’informatique et des libertés (CNIL)  and is vested with the following six main functions.

  • Informing and educating – informing individuals of the rights granted to them by the Data Protection Regulation.
  • Regulating and advising: establishing and implementing soft law standards intended to support companies in their efforts to comply with the Data Protection Regulation.
  • Assistance in compliance: certifying persons, products, data systems or procedures which comply with the Data Protection Regulation.
  • Protecting the rights of individuals: receiving data subjects’ complaints through a dedicated online service.
  • Inspecting: checking whether the operational conditions under which companies implement their processing activities of personal data comply with the Data Protection Regulation.
  • Enforcement: having the prerogative for wide-ranging sanctions.

CNIL agents can access any corporate premises and request all documents and any useful information or proof that are necessary. In the case of investigation, secrecy can only be asserted under very limited circumstances (such as information covered by attorney-client privilege). In addition, CNIL agents are now entitled to use fake identities, subject to certain conditions, for the purposes of conducting online inspections.

The Chairperson of the CNIL is vested with limited enforcement powers, allowing them to:

  • inform data controllers or data processors that their processing of personal data breaches the Data Protection Regulation;
  • notify data controllers or data processors that they must comply before a given deadline (usually three months, potentially renewed for the same period); and
  • refer the case to the enforcement committee of the CNIL.

The enforcement committee of the CNIL is vested with greater powers. Following a procedure at which the entity against which enforcement is sought has the right to be heard, it is entitled to take decisions/measures including:

  • a warning;
  • an injunction to ensure compliance their processing of personal data, if necessary under penalty;
  • a cease-and-desist injunction with respect to the data processing;
  • suspension of cross-border data flows;
  • a withdrawal of the certification given by the CNIL;
  • an order to satisfy the requests from data subjects, if necessary under penalty;
  • a fine up of up to EUR20 million or 4% of total worldwide annual turnover (such a fine can be published in the press at the cost of the breaching entity).

The risk of exposure to substantial financial penalties remains moderate (it would require successive complaints to the CNIL from data subjects over a short period of time).

Any sanction can be appealed to the French Supreme Administrative Court within two months of the notification or the publication of the CNIL’s decision.

In cases of immediate and serious violations of fundamental rights and freedoms, the CNIL chairperson shall refer a request to the competent jurisdiction to order any necessary measure for the security of data. It is also entitled to report any violations of the French Data Protection Act to the French prosecutor.

McDermott Will & Emery

23 rue de l’Université
75007 Paris
France

+33 1 81 69 15 00

+33 1 81 69 15 15

nlafont@mwe.com www.mwe.com
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McDermott Will & Emery partners with leaders around the world to fuel missions, knock down barriers and shape markets. With 20-plus locations on three continents, the team works seamlessly across practices, industries and geographies to deliver highly effective – and often unexpected – solutions that propel success. More than 1,100 lawyers strong, the firm brings its personal passion and legal prowess to bear in every matter for its clients and the people they serve. Its expertise extends through antitrust and competition, corporate and transactions, employee benefits, employment, global privacy and cybersecurity, intellectual property, litigation and dispute resolution, private client and wealth management, regulatory, tax and white-collar matters. The firm views transactions not as one-off events but rather as critical steps in a comprehensive, long-term strategy. Its lawyers work to understand clients’ objectives and how they fit into an overall plan, helping them to make effective decisions that bring immediate results and set the stage for future value creation.

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