As a sick micro-entrepreneur, you have every right to subcontract part of your work if you are unable to carry it out for medical reasons. However, you must ensure that you comply with the conditions governing subcontracting.
What are the differences between a subcontract and a service contract?
A contract for the provision of services meets the need to make up for skills lacking within the client's company. The destination of the work performed is internal.
The aim of a subcontracting contract is to have another company carry out work that it should itself be carrying out for its customer. The recipient of the work is then external.
Subcontracting conditions
Subcontracting is a contract between two companies: the first is a prime contractor, entrusting part of its activity to the second, which becomes its subcontractor.
The subcontractor is then regarded as your partner for a one-off task. The subcontractor is not an employee, as there must be no relationship of subordination between you and the subcontractor. You must not interfere in the way they carry out the task you delegate to them.
How do I sign a subcontract?
Before you consider signing a contract with a subcontractor, we strongly advise you to check that you are not the subcontractor's only customer. This will avoid the risk of having the subcontract requalified as an employment contract.
You must also ask the subcontractor you have chosen to provide you with a certificate of compliance. This document provides you with proof that the subcontractor has paid all social security contributions in full. This certificate is compulsory for all subcontracting contracts involving services worth a total of €5,000 excluding VAT. You must request it as soon as the contract is signed. It must be renewed every 6 months until the service has been fully performed.
This document identifies the subcontracting company and, if it employs staff, the number of employees and the total amount of remuneration declared on the latest summary of Urssaf contributions.
A security number on the certificate of vigilance enables the client to check its authenticity. Simply enter this number on the home page of the Urssaf website.
What information must be included in the contract?
It is not compulsory to draw up a subcontracting agreement. However, it is always preferable to put the following points in writing to avoid any subsequent disputes:
- detailed mission statement
- its duration
- the mission schedule
- the amount agreed for the service and the terms of payment
- contract termination options
- any obligations of means or results
- the responsibilities of both parties, the applicable law and the competent legal authority in the event of a dispute
- any financial penalties for late completion of the assignment
Non-competition clause
It is quite possible to include a non-competition clause in this type of contract. This will prevent your subcontractor from being tempted to deal directly with your customer in the future. However, be sure to identify the services affected by the non-competition clause, and possibly the territory concerned. This clause must be limited in time. Finally, it is advisable to include a penalty mechanism if the subcontractor breaches the clause.
The risks of requalifying a subcontract as an employment contract
A self-employed worker with micro-entrepreneur status can request that his or her services be reclassified as an employment contract, provided that he or she can prove a subordinate relationship with the customer. This request may also be made by the Urssaf, following an inspection.
This possible reclassification has consequences:
- In civil terms, the principal may be ordered to pay the subcontractor back wages, bonuses, compensation in lieu of notice, etc.
- In criminal terms: he is liable to the penalties laid down in the French Labor Code for undeclared work.
In addition, Urssaf is entitled to apply contribution adjustments for the entire duration of the employment relationship, as well as late payment surcharges.
The disadvantages of subcontracting for a micro-entrepreneur
You will have to charge a retrocession fee, as your micro-business will invoice the customer. However, your tax system does not allow you to deduct your actual expenses. As a result, you will be required to pay full social security contributions on these amounts. Long-term subcontracting can therefore represent a heavy burden and unbalance your cash flow.