Remuneration of the SARL manager : precautions to take

In this period of general assemblies which begins, company managers will be well advised to take some precautions regarding their remuneration. Advice from Julien Gasbaoui, lawyer devoting his activity to criminal business law.

Amount of remuneration, content of the remuneration and power of the majority shareholder : the rules are known, but in practice most often not applied. Or, before a judge, invoking usage is not an argument. Better, to prevent any litigation, respect the rules. First, vote on remuneration upstream and not after the fact. In principle, the remuneration of the SARL manager must be fixed in advance. First solution : this remuneration can be set in the statutes. What is not recommended, because any subsequent development would require a modification of the statutes. Hard to imagine. Second solution : a collective decision decides a fixed and sustainable amount, with possibly a calculation method concerning a variable part. In this case, the remuneration must be paid as long as it is not revoked.
But very often, it is not possible to set the remuneration in advance, this being strongly correlated to the activity of the company. Legal evidence clashes with economic realities… Consequently, the habit is developing of validating remuneration a posteriori, at the general meeting of the following year. Currently, SARLs whose financial year ends on December 31 begin to send notices to ordinary general meetings, during which the managers will validate the withdrawals they made during the previous year.

If the general assembly refuses approval...
We could question, and in the extreme imagine that the levies could incur the qualification of abuse of corporate assets, in the sense that the manager was not authorized, as required by law, to collect funds. Such an interpretation would be exaggerated, because it is the reality of the work that counts. As long as the manager is involved in the interest of the company and his remuneration is not disproportionate to the work provided, there is no need to worry. On the other hand, the problem will arise if the general assembly refuses the approval. The manager could then be forced to repay. In other words, the possible intervention of a general meeting a posteriori exposes the manager to a risk of reimbursement of his remuneration. To avoid this type of inconvenience, managers will be well inspired to offer, during the AGM of year N, a resolution and a vote setting their remuneration for the coming year N+1, why not by allowing yourself a formula like : “remuneration within the limit of…. ».

Include social contributions in remuneration
Majority managers and managers, associated or not, belonging to a majority management college, are obligatory covered by the social security of the self-employed. In principle, contributions are therefore due personally by the manager himself and not by the company. So, the practice, well anchored, wanting social contributions to be paid by the company is in reality abnormal. It is legally possible, but in this case social contributions must be included in the gross remuneration of the manager, Who, SO, mechanically, increase. And this amount must be voted on by the partners..
It is worth emphasizing : it is the associated manager who owes the sums to URSSAF and not the company which is in no way in debt.. The manager's contributions are personal. If the company pays, it will be necessary that the manager's current account (which must therefore be fed, remember that a current account cannot be debit) be debited for the amount of the sums due. These accounting records must be made even if calls for contributions are postponed during this pandemic period.. This accounting entry proving that it is indeed the manager who has paid his social security contributions could prove crucial in the event of litigation. !

The majority manager does pretty much what he wants
The question arises regularly : how can minority shareholders act so that the majority manager does not remunerate himself excessively, thus depriving them of dividends ? First of all, you should know that the determination of the remuneration of the manager of a limited liability company by the meeting of shareholders does not result from an agreement.. Remember that a regulated agreement must be approved by the general meeting of shareholders with the majority expected for ordinary decisions. ; but the partner or manager concerned by the agreement to be approved cannot participate in the vote. The manager's remuneration is not the subject of a regulated agreement, he can therefore take part in the vote concerning his own remuneration.
What can minorities do? ? Certainly, they can sue for abuse of majority. Or, if the notion of abuse of majority exists, it is rarely effective. Indeed, so that an abuse of majority is proven, this supposes the meeting of two cumulative conditions, namely the contrariety to the social interest and the breakdown of equality between the majority and the minority. In this regard, as evidenced by a recent judgment, contrariety to the social interest cannot be sufficient in the absence of a breach of equality*. But the opposite is also true : the breach of equality is insufficient in the absence of conflict with the social interest**. The conditions being, let's remember, cumulative, it will therefore be necessary, to hope to see the action of the minorities succeed, that these demonstrate that the majority receive excessive resources and that this is done not only to the detriment of the structure but also of the minorities.

A minority manager must know what can happen to him
When starting a business, it happens that a partner, who carries the idea, is a minority but is appointed as manager. This minority manager must be aware of the weaknesses of his position and the risks that his project will escape him.. Indeed, It appears from all of the above that a minority associate manager may not only be dismissed, but then find yourself in a situation where the new manager, majority or placed by the majority, will be able to, fact, deprive him of dividends without legal action being able to protect him. The judicial reaction will then not necessarily be favorable to him. He will simultaneously lose his power and his income. To put it in other words and more trivially : a majority partner makes (presque) what he wants !