The Ordinance of 8 February 2023 on the practice of regulated liberal professions through a company introduces a new legal framework that is simpler, clearer, and more secure for professionals. Valérie Bouchez and Marie Lalanne, partner lawyers at LIBRATO AVOCATS, provide an overview of its key provisions, which are set to come into force on 1 September 2024.
ABefore Ordinance No. 2023-77 of 8 February 2023, the legislation governing liberal professions was complex and fragmented. Earlier legal texts, such as Law No. 66-879 of 29 November 1966 on professional civil companies and Law No. 90-1258 of 31 December 1990 on liberal professional companies, had undergone numerous amendments over the years, gradually making the legal framework more opaque and sometimes ill-suited to the modern realities of liberal professions.
Each law was subject to numerous implementing decrees. While profession-specific decrees had the advantage of clarifying the regulatory framework applicable to a given field, multiple successive decrees could apply to the same profession, making it difficult for professionals to fully grasp the applicable rules.
The Ordinance of 8 February 2023, published in the Official Journal on 9 February 2023, stems from Article 7 of Law No. 2022-172 of 14 February 2022 on independent professional activity. It responds to a growing need for clarification and simplification of the legislative provisions applicable to regulated liberal professions. The text groups the professions into three main categories – healthcare professions, legal and judicial professions, and technical and lifestyle professions – and has the benefit of centralising both common and specific provisions that apply to them.
Partners in general law companies (SARL, SAS, SA or SCA) : the need for harmonised articles of association
The Macron Law of 6 August 2015 allowed notaries, judicial officers, lawyers, court-appointed administrators, and receivers to practise through general law companies such as SARLs, SASs, SAs, or SCAs.
These professionals were no longer required to form liberal professional companies (SELs), with the aim of eliminating unequal treatment between liberal professionals, some of whom were already authorised to operate under general company law.
However, in practice, this model proved inadequate for certain regulated professions.
There was a legal void on several issues—resolved by the courts for SELs—such as the tax and social security status of partners in general law companies.
The ordinance therefore requires these liberal professionals, as of 1 September 2024, to update the articles of association of any company established under general company law (SARL, SAS, SA or SCA) in order to comply with the new legal requirements. In other words, general law companies will give way to SELs.
However, intellectual property attorneys, chartered accountants, and statutory auditors are excluded from this obligation and may continue to practise under general law company structures.
We regret this disparity in treatment among liberal professions.
All existing companies (whether general law or SELs) have until 31 August 2025 to update their articles of association. These must, in particular, reflect the new classification of regulated liberal professions : healthcare professions, legal and judicial professions, and technical and lifestyle professions.
For example, the ordinance ends, for liberal professionals practising a legal or judicial profession, the statutory limit on the amount that may be left in partner current accounts.
Previously, this amount could not exceed three times the partner’s shareholding in the company’s capital.
As of 1 September 2024, legal and judicial professionals will be able to organise the provision of funds to the company as they see fit.
However, this is not the case for professionals practising a medical profession, for whom the ordinance maintains a cap on the funds made available to the company, referring the specific conditions to a decree issued by the Council of State.
The articles of association must include reinforced governance clauses specifying the roles and responsibilities of the directors and partners. Corporate purposes may need to be revised in certain cases to comply with the new regulations.
This could include the addition of new activities or the modification of existing ones to align with the expanded possibilities for investment and interprofessional collaboration.
All internal company documents must also be updated to reflect the new statutory provisions. This includes, in particular, internal regulations and shareholders’ agreements.
One piece of good news: the ordinance of 8 February 2023 does not include a “withdrawal clause” in SELs – a clause that exists in professional civil companies (SCPs), under which a withdrawing partner may require their shares to be bought back by the other partners or by the company within six months of giving notice of withdrawal (or up to ten months at the latest). It should also be noted that the share capital of liberal professional companies may still be held by professionals who do not practise within the company in which they hold shares, thus encouraging cross-ownership and growth.
However, unlike previous legislation, the ordinance now specifies that these provisions “do not apply to persons subject to a prohibition on practising the profession, or any of the professions that constitute the corporate purpose of the company.”
Multi-professional practice companies : welcome to surveyors
Just like the Law of 31 December 1990, the Ordinance of 8 February 2023 allows for the creation of multi-professional practice companies (SPE – sociétés pluri-professionnelles d’exercice).
However, while the previous law authorised 9 professions to form a single joint practice structure – namely, lawyers, lawyers at the Conseil d’État and Cour de cassation, judicial officers, notaries, court-appointed administrators, judicial representatives, industrial property attorneys, statutory auditors, and chartered accountants — the ordinance adds one more profession to this list: licensed surveyors.
The formation of an SPE will remain subject to strict conditions, including obtaining approval from the relevant authority or professional body for each profession involved, and complying with the specific rules applicable to each.
SPEs will be able to share material and real estate resources, which simplifies management and reduces operating costs for liberal professionals.
Financial holding companies for liberal professions : interesting legal developments, but current tax rules hinder any real opportunity
SPFPLs are holding companies that can be set up by liberal professionals. They are not practice structures themselves.
Previously limited to holding shares in liberal professional companies (SELs), their scope of investment is now broadened. While the Law of 31 December 1990 expressly provided that SPFPLs could “carry out any other activity, provided it is exclusively intended for the companies or groups in which they hold interests,” this wording was widely interpreted in practice as allowing investments in companies whose corporate purpose was real estate. The ordinance now clarifies that SPFPLs may “own, manage, and administer any real estate assets and rights, and provide services, provided that such activities are exclusively intended for the operation of the companies or groups in which they hold interests. Subject to this condition, they may in particular hold shares or interests in any company, whether civil or commercial in form, solely for the purpose of acquiring and managing real estate.”
The ordinance thus confirms a real need expressed by liberal professionals in the context of building their professional assets: they may now hold shares, through a holding company, in a SCI (civil real estate company) that owns property used for their professional activity, or invest directly through the holding company in real estate allocated to the practice of their profession.
Beyond the benefit of avoiding personal financing for the acquisition of business premises – particularly to allow interest deductibility – the creation of an SPFPL also has the advantage of limiting liability to the partner’s share in the company’s debts.
SPFPLs may also hold shares in commercial companies, provided that the corporate purpose of such companies relates to activities that the liberal professionals owning the SPFPL are authorised to carry out under the rules applicable to their respective professions. As such, they may provide management, administration, and coordination services to their subsidiaries and holdings, allowing them to play a more active role in managing the companies they control. However, this possibility of acquiring interests in commercial companies is only open to legal and judicial professionals.
Two further limitations should be noted :
- SPFPLs cannot hold shares in professional civil companies (SCPs), which may still only be formed between natural persons.
- The French Court of Cassation, in its ruling No. 21-20.366 of 19 October 2023, significantly reduced the appeal of SPFPLs by holding that dividends paid by the professional company to the SPFPL are subject to professional social security contributions. This ruling has been widely criticised by liberal professionals, who consider it to contradict Article L131-6 of the French Social Security Code.
The French Senate was questioned on this decision on 15 February 2024, and a response is still pending.
Strengthening of safeguards
In response to the increasing financialisation of certain liberal professions (such as biologists, veterinarians, etc.), the ordinance aims to guarantee the independence of liberal professionals in the exercise of their activity, free from external influence that could compromise the quality and integrity of their services.
This is particularly crucial in professions where ethics and responsibility toward clients or patients are essential. As such, enhanced oversight is entrusted to professional bodies, which will now request not only internal regulations but also shareholders’ agreements.
Shareholders’ agreements – typically confidential documents – often govern key matters such as governance, voting rights, profit distribution, and conditions for partners joining or leaving the company. By reviewing these documents, professional bodies will ensure that internal practices comply with legal and ethical requirements (e.g. the professional’s freedom to practise their profession independently).
Both SELs and SPFPLs will also be required to submit annually to the relevant professional bodies the shareholding structure, the allocation of voting rights, and the updated articles of association.
We are still awaiting implementing decrees to determine the possible sanctions in the event of failure to provide this information.
On the published decrees
To date, only Decree No. 2023-1165 of 9 November 2023 has been published. It concerns the list of professions falling under the category of legal and judicial professions, which includes :
- Court-appointed administrators and judicial representatives ;
- Lawyers ;
- Lawyers at the Conseil d’État and the Cour de cassation ;
- Judicial officers ;
- Clerks of commercial courts ;
- Notaries.
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