In order to promote the use of telework, Article L.1222-9 of the French Labour Law from the “Ordonnance Macron” n°2017-1387 dated September 22, 2017 and modified by the Bill of ratification on March 29, 2018 simplifies the means for implementing telework.
From now on, an employment contract no longer needs to be modified to allow an employee to “telework” (work remotely).
A telework situation can be implemented on the basis of one of the following 3 means:
– a charter drawn up by the employer,
– a collective labour agreement,
– a simple agreement with the employee (verbal, postal or email agreement, etc.).
Article L.1222-9 of the French Labour Law does indeed foresee that, in the absence of a charter or collective labour agreement implementing the telework situation, the employee and employer may officialise their agreement to use this type of work arrangement by any means whatsoever.
The third means of implementation, previously only possible in the event of “temporary” use of telework provided for in the initial Law, has been extended by the Bill of ratification to all types of use of telework, whether temporary or permanent.
Although a verbal agreement may suffice, a detailed, written one is nevertheless preferable, in particular for the sake of proof in case of a dispute.
Moreover, and when telework is organised on the basis of the collective agreement or charter, the Law requires that the conditions for switching to telework be specified, in particular in the event of an air pollution episode.
That specification made in the Bill of ratification actually echoes the Bill, proposed by the senators in January 2018, aimed at promoting telework in the event of an air pollution episode.
Lastly, whatever the means for implementing telework, the Law specifies that the rights of teleworkers remain identical to those of employees performing their work on the company premises.
In the terms of article 219, I-a quinquies of the French Tax Code (CGI), the quasi-exemption regime for long-term capital gains is applicable to shares held for at least two years, which:
– Have, in accounting terms, the nature of equity securities, whether they are entitled, or not, to the parent companies’ tax regime; and
– Are entitled to the regime of the parent companies and subsidiaries (CGI, article 145) without having, on the accounting level, the nature of equity securities subject to the shares being recorded in a special subdivision of a balance sheet and subject to representing at least 5% of the distributing company’s capital.
In accounting terms, equity securities are those whose lasting ownership is considered useful to the activities of the company, notably because they enable the company to exercise control or influence over the company issuing the shares.
In principle, the usefulness of lasting ownership of transferred shares can be characterized by the existence of a shareholders’ agreement.
In the case judged by the Council of State, it was considered, quite to the contrary, that such was plainly not the case as the agreement established that the shareholders were solely pursuing the objective of financial returns. In this instance, neither the intent to exercise influence over the issuing company nor the intent to ensure its control was therefore characterized by this agreement.
Moreover, regarding the condition of holding at least 5%, the Council of State specified that the percentage had to be assessed based on the date of the event having generated the tax, i.e. regarding capital gain on transfer, on the date of that transfer, and not in a continuous manner over a 2-year period.