On February 8 and 9, 2017, the Conseil d’Etat (the French Council of State) and the Cour de cassation (the French supreme court of appeal) have referred to the Conseil constitutionnel (the French Constitutional Council) a question prioritaire de constitutionnalité (QPC – priority question of constitutionality) in order to confirm the constitutionality of the employer’s contribution on qualifying free share award regime granted before the Macron law (i.e. before August 8, 2015) due the month after the decision of the board approving the free share award plan even if shares are not acquired by employees.
In 2008, the French Social security financing act introduced an employer contribution on qualified free share awards paid a month after the decision of the board approving the free share award plan.
However, this contribution was definitively due at grant date even if these shares were not acquired by employees at vesting date.
The transmission of a QPC by the two french supreme courts
The question referred to the Constitutional council is based on one argument: how terms and provisions regarding the contribution payment date could be compatible with the constitutional principle of equality before the law and with respect to fair taxation since related income may remain virtual income?
A decision is expected in the next three months. The Constitutional council can modulate its decision and limit its application.
While waiting for a final decision, our team remains at your disposal to analyse your situation, so that necessary steps can be implemented in the meantime.