Yes.
The performance by the same person of the duties of a corporate officer and those of an employee in the same company is possible (combination of offices).
Nota Bene
It should however be noted that there is only a genuine combination of offices if the employment contract is a real and serious agreement which reflects a function genuinely carried out and which is characterised by a subordinate relationship between the employee and the employer.
In fact, according to consistent case law, the subordinate relationship, an essential criterion for an employment contract, which enables it to be distinguished from other contracts, is characterised by the execution of a contract under the authority of an employer who has the power to give orders and instructions, to monitor the execution thereof and to penalise failings on the part of a subordinate. It is not however required that the employer should exercise close and permanent supervision of the employee: it is sufficient for the employer to be entitled to give the employee instructions for the organisation and execution of his work.
Thus, the case law accepts in general that the managing director responsible for the day-to-day management of a company may be regarded as engaged on a subordinate basis, if he carries out a technical function (for example, General Manager) distinct from his corporate office, under the supervision and authority of the board of directors which exists independently and is in a position to exercise over the employee, also a member of the board of directors, the powers which characterise a relationship of subordination.
On the other hand, the Court of Appeal has held in a judgment that a managing director of a public limited company who acts for and in the name of the company, who represents it and who, in the performance of his duties, is vested with wide powers and is constrained only to comply with the decisions of the board of directors of which he forms part and of the general meeting, is not a private employee, but a corporate officer, particularly if he is at the same time a member and founder of the company, participating in profits and losses, liable for corporate liabilities and entitled to vote, supervise and oversee in the same way as the other members, provided that the subordinate relationship does not exist for a managing-director-member, the members or the directors of a company not being subordinate to each other.
In view of the fact that the situation of a corporate officer is, in particular at corporate level, very different from that of an employee, the former being removable from his office without reasons being given and without compensation, whereas the second benefits from the protective provisions of the Labour Code, the exact classification of the relationship binding a person to the company is of the greatest importance.
As regards the manager of a private limited company, determination of the existence of a subordinate relationship between the manager and the company also depends on a number of criteria and it is appropriate to take account of a large number of indices.
According to the case law, the combination by the same person of the offices of a manager and of an employee is possible, provided that the employment contract is a genuine and serious agreement which reflects a function genuinely carried out and which is characterised by a subordinate relationship between the employee and the employer. In other words, a technical function distinct from that of a corporate officer must exist.
It is clear from the case law that certain situations are incompatible with a subordinate relationship between a manager and the company. Thus, the manager may not be bound to the company by an employment contract in particular if:
- he is the sole manager of the company;
- his powers are unlimited (that is to say, he is entitled to commit the company in all circumstances by his sole and unaccompanied signature);
- the business permit is issued in the name of the manager;
- he has a majority holding in the company.