French employment law - Senior Executive Status (cadre dirigeant)  - 25 Years of the Legal Definition of Senior Executive in the Labor Code: What's assessment?

The legal definition of senior executive is 25 years old. It was the Aubry II Law No. 2000-37 of January 19, 2000 (Article 11) that incorporated the term senior executive into the Labor Code by incorporating Article L. 212-15-1, which later became Article L. 3111-2. This Aubry II Law of January 19, 2000, established the legal working week at 35 hours.

It also provides for a number of exemptions to the 35-hour week: for executives on fixed-day work, but also for senior executives.

The classification of senior executive allows employees who benefit from it to be exempt from the application of working time regulations. Conversely, if the courts exclude the status of executive officer, the employee will be entitled to claim payment for overtime worked beyond the statutory working hours. The Court of Cassation has clarified the scope of this status, the conditions of which are set out in Article L. 3111-2 of the French Labor Code. The conditions for applying executive officer status are strictly assessed by the Court of Cassation in order to limit abuse.

1) Strict assessment of executive officer status.

In addition to the remuneration criterion, which generally poses little difficulty in assessing, it is imperative to demonstrate that the employee is autonomous in their decision-making and that they participate in the strategic direction of the company.

It is primarily on these criteria that the debates focus.

1.1. No autonomy in decision-making = exclusion from executive officer status.

In its judgment of March 5, 2025 (No. 23-23.340), the Court of Cassation partially overturned the decision rendered by the Versailles Court of Appeal, requiring a proper assessment of each condition set out in Article L. 3111-2 of the French Labor Code, and in particular of the employee's autonomy (see our article "Executive Manager: He Must Have Decision-Making Autonomy" https://www.village-justice.com/articles/cadre-dirigeant-doit-disposer-une-autonomie-decisionnelle,52882.html).

Since the Court of Appeal did not verify whether the executive actually enjoyed this decision-making autonomy, the High Court consequently overturned the decision of the Versailles Court of Appeal. The High Court reaffirms the need to conduct a thorough examination of the facts by assessing the employee's actual duties and responsibilities to determine whether they meet the criteria for executive status.

If the employee does not have true autonomy in the performance of their duties, this status will be excluded.

In a ruling dated December 11, 2024, the Court of Cassation confirmed the reasoning of the Court of Appeal, which "noted that the employee produced documents relating to disciplinary proceedings against the association's employees or amendments to employment contracts, demonstrating that she lacked autonomy in this matter, as decisions were made by the association's president." (Cass. soc., December 11, 2024, no. 23-19.421).

This lack of autonomy in disciplinary matters, notwithstanding his autonomy in other areas and his level of compensation, justified the exclusion of the status of senior manager.

1.2. No participation in the strategic direction of the company = no status as senior manager.

In a ruling dated November 14, 2024 (No. 23-16.188), the Court of Cassation noted that, although enjoying considerable organizational freedom and high compensation, the employee holding the position of Quality Manager was not involved in the strategic direction of the company.

In a ruling handed down the same day concerning a facility manager, the Court of Cassation considered that the director managed his facility autonomously but primarily executed the objectives defined by his superiors, without involvement in the overall strategy (Cass. soc., November 14, 2024, No. 23-20.793).

Concerning a Chief Financial Officer, the Court of Cassation ruled that, although the Chief Financial Officer of a small entity has significant responsibilities and autonomy, he or she does not participate in the strategic management of the company (Cass. soc., 20 Nov. 2024, no. 23-17.881).

More recently, the Court of Cassation overturned appeal decisions that did not sufficiently take into account the criterion of participation in the management of the company, for lack of a legal basis. In a judgment of 26 February 2025 (no. 23-14.946), the Court of Cassation overturned the appeal decision which had dismissed the employee's claim for overtime "by thus deciding, on grounds which were not suitable for establishing that, in the exercise of his duties as head of the establishment, the employee was effectively authorized to make decisions in a largely autonomous manner, leading him to participate in the management of the company, the Court of Appeal deprived its decision of a legal basis". Similarly, in a ruling dated March 19, 2025 (No. 24-10.173), the Court of Cassation overturned the appeal decision on the grounds that "by reaching this decision, based on grounds that are insufficient to demonstrate that the employee, in the performance of her duties, was indeed authorized to make decisions largely autonomously, leading her to participate in the management of the company, nor that she received compensation that placed her at the highest levels of remuneration, the Court of Appeal deprived its decision of a legal basis."

To read the full brief, click on the link below.

https://www.village-justice.com/articles/cadres-dirigeants-ans-definition-legale-cadre-dirigeant-quel-bilan,54132.html

Frédéric CHHUM avocat et ancien membre du conseil de l’ordre des avocats de Paris (mandat 2019-2021)

CHHUM AVOCATS (Paris, Nantes, Lille)

e-mail: chhum@chhum-avocats.com

www.chhum-avocats.fr

https://www.instagram.com/fredericchhum/?hl=fr

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