A foreign founder does not necessarily have to wait for the French Kbis before signing a first employment contract. The Kbis is the official extract issued by the commercial court registry (the greffe) for a company registered with the Trade and Companies Register, or RCS. It proves registration; it is not, by itself, the document that creates the employment relationship. The real legal questions are different: who signs for the company while it is still being formed, who bears the obligations if registration fails, and whether the employee may actually start work before the pre-employment formalities have been completed.

The safe answer for a foreign founder is therefore conditional. The contract can be signed before the Kbis if it clearly identifies a company “in the course of formation”, records the representative’s authority, and is prepared for a legally valid takeover by the company after registration. The employee must not start work merely because the contract has been signed. A DPAE (déclaration préalable à l’embauche, or prior declaration before hiring) must be sent to the competent URSSAF, the body that collects French social-security contributions, before the actual start of work. If the company has not yet received its Siret number, the URSSAF procedure provides a paper route. This article explains the contract, the founder’s exposure, the first DPAE and the corrective steps if the Kbis is delayed.

Short answer: sign the employment contract as an act for the company in formation, include it in the acts schedule or a sufficiently precise mandate, file the incorporation application with the INPI-operated one-stop shop, and complete the DPAE before the employee’s first working hour. Do not invent a Siret number, backdate a declaration, or treat a pending Kbis as permission to postpone payroll compliance.

I. Can a French company sign its first employment contract before receiving its Kbis?

A. What the company in formation can sign before registration

A French commercial company exists in a transitional period between the founders’ decision to create it and its registration. In French legal language, this is a société en formation. The founders may need to sign a lease, order equipment, open a bank account, appoint advisers or recruit the first employee before the registry has issued a Kbis. The existence of that practical period does not mean that the future company already has full legal personality.

The distinction is central. Article L. 210-6 of the French Commercial Code states that commercial companies acquire legal personality on registration. The provision uses the words « Les sociétés commerciales jouissent de la personnalité morale à dater de leur immatriculation ». Until that event, the company cannot simply be treated as an ordinary registered employer with a Kbis, a Siret and a complete corporate identity. The document issued by the registry later will confirm the legal person that has been registered; it does not erase the need to identify who acted during the formation period.

This does not make a pre-registration employment contract impossible. Article L. 1221-1 of the Labour Code provides that « Le contrat de travail est soumis aux règles du droit commun ». The parties may therefore agree on a job, remuneration, working time and a start date, while the founder signs expressly for the future company. The contract should use a formulation such as: “[Proposed company name], a French [SAS/SASU/SARL] in the course of formation, with its proposed registered office at [address], represented by [full name], acting in the name and on behalf of the company in formation.” The contract should not present an invented registration number or suggest that the Kbis has already been delivered.

The same discipline applies to a foreign founder. A founder who lives in the United Kingdom, the United States, Singapore or another country can sign remotely, subject to authority, identity and signature checks. The fact that the founder is not moving to France is not the issue here. The issue is whether the signatory has authority to take the engagement for the future French employer, and whether the document makes the intended legal mechanism intelligible to the employee, the URSSAF and the registry.

The government’s company-registration guidance expressly recognises that activity may begin before registration, provided documents use the wording “Société en cours de formation” and the founders prepare an annex listing acts completed before the registration request. That guidance is not a substitute for the contract, but it confirms the practical principle: a founder can prepare the business, provided the acts are correctly attributed and the registration file is coherent.

For an employment contract, the wording should cover at least six points:

• the precise proposed company name, legal form and proposed registered office;
• the identity and capacity of the founder or other signatory;
• the words “in the course of formation” or “acting for and on behalf of the company in formation”;
• the employee’s position, duties, remuneration, working place and intended start date;
• the condition that the company will complete registration and take over the engagement, without pretending that registration has already occurred; and
• a schedule or mandate allowing the employment commitment to be identified among the acts to be taken over.

A contract is not the same as a vague recruitment email. In Cour de cassation, Labour Chamber, 19 November 2014, appeal no. 13-19.483, the Court considered that « l’écrit qui précise l’emploi proposé et la date d’entrée en fonction constitue une promesse d’embauche ». The decision concerned a future company that was never constituted. It is a warning for a foreign founder: a detailed written commitment can create obligations even when the project later fails. The document must therefore be drafted as a real employment commitment, not as an informal placeholder.

Finally, distinguish signing from starting. A contract may be executed on Monday for a start date two weeks later, during which the INPI filing, registration and DPAE can be organised. That timing is often the cleanest solution. Signing before the Kbis is a corporate-formation question; allowing work to begin before a DPAE is an employment-compliance question. They cannot be solved by the same sentence in the contract.

B. Who is bound if the company is not yet registered?

The principal risk is personal liability. Article 1843 of the Civil Code provides that « Les personnes qui ont agi au nom d’une société en formation » are responsible for obligations arising from the acts carried out, and that « La société régulièrement immatriculée peut reprendre les engagements souscrits ». For a commercial company, the statutory rule includes solidarity between persons who acted for the company, unless the registered company takes over the commitments through the applicable procedure.

Article L. 210-6 adds that persons who acted for a company before it acquired legal personality are jointly and indefinitely responsible unless the company, once properly constituted and registered, takes over the commitments. The statute also states that the commitments are then treated as having been undertaken by the company from the beginning. The result is practical rather than theoretical: if the future company registers and validly takes over the employment engagement, the company becomes the employer for the commitment. If the company never registers, or if the act cannot be linked to the future company, the founder or signatory may remain exposed to the employee’s claims.

There are three common takeover routes. First, an acts schedule can be prepared before the articles of association are signed and annexed to them. The schedule should identify the employee, the type of contract, the proposed start date and the financial commitments. Second, after the articles are signed but before registration, the founders can give a sufficiently precise mandate to a founder or proposed director to sign the employment contract for the company in formation. Third, after registration, the company can approve the act expressly by the competent corporate decision-making process if the first two mechanisms were not used.

Article R. 210-6 of the Commercial Code describes this machinery for companies by stating that « Cet état est annexé aux statuts » and that, where the mandate is determined and its terms specified, registration « emporte reprise de ces engagements ». The words matter. A general email saying “please hire someone when possible” is weaker than a written mandate identifying the role, salary range, start date and authority. A schedule that merely says “employment costs” without identifying the engagement may create avoidable arguments.

The modern case law is less formalistic than an automatic nullity rule, but it is not a licence for careless drafting. In Cour de cassation, Commercial Chamber, 29 November 2023, appeal no. 22-18.295, the Court held that, even where an act does not expressly say that it was signed for the company in formation, the judge may examine all the circumstances to determine the parties’ common intention. The decision states that the judge must assess « l’ensemble des circonstances » to decide whether the act was concluded for the future company. That factual safety net should be treated as litigation risk, not as a drafting technique.

A second useful decision concerns a contract that expressly named a company still being registered. In Cour de cassation, Commercial Chamber, 10 February 2021, appeal no. 19-10.006, the Court accepted that the contract could identify the company as the counterparty while it was in the course of registration, rather than automatically treating the representative as the contracting party. The operational lesson is to make the intended counterparty and the representative’s capacity visible on the face of the contract.

The employment relationship must also be assessed by its facts. In Cour de cassation, Labour Chamber, 13 January 2009, appeal no. 07-40.077, the Court rejected an analysis based only on the date and label of the contract and recalled that « le contrat de travail ne dépend ni de la volonté exprimée par les parties ». It directed the court to examine the actual work, authority, instructions and control. For a foreign founder, that means that a document labelled “consultancy” will not protect the company if the person works as an employee, and a document signed before the Kbis will not become harmless if the employee is placed under direction without the required declarations.

The decision in Cour de cassation, Labour Chamber, 13 March 2013, appeal no. 11-14.751 is equally instructive. The employee claimed that work and preparatory services had begun before the company’s registration. The Court examined evidence such as training, operational steps, payment and medical-visit issues. It did not create an automatic presumption that every act before registration is salaried work, but it shows why the founder must keep a dated record separating genuine preparation, training, recruitment and the effective start of employment.

In short, the founder should assume that the employment commitment exists somewhere in the legal file from the moment it is signed. The Kbis may later transfer the commitment to the registered company, but it is not a retroactive eraser for an incorrectly identified employer, an unauthorised signatory or an undocumented period of work.

II. How should a foreign founder secure the employment contract and first payroll?

A. How to combine the contract, DPAE and URSSAF registration

The first operational rule is simple: the employee may sign before receiving the Kbis, but must not start work before the DPAE has been completed. Article L. 1221-10 of the Labour Code says that « L’embauche d’un salarié ne peut intervenir qu’après déclaration nominative ». The DPAE must reach the competent URSSAF before the employee takes up the position or begins the trial period, and it may be sent at the earliest eight days before the planned start date. This is why a contract signed before registration should use a future start date that leaves enough time to make the declaration.

The DPAE is not a single-purpose notification. Article R. 1221-2 of the Labour Code explains that it carries several declarations and requests, including the employer’s registration with the general social-security scheme, the employee’s affiliation with the health-insurance body, unemployment-insurance affiliation, membership of an occupational-health service and the request for the employee’s information and prevention visit. In other words, the first DPAE is the gateway to the first employer file. The foreign founder should not wait for the Kbis if the employee’s start date is approaching; the founder should ask the URSSAF how to file correctly while the company registration is pending.

The URSSAF’s current DPAE guidance is particularly useful for a new company. It states that the declaration is made before the start of work and, where the creation of the establishment is still being validated through the one-stop shop, the employer should complete the Cerfa DPAE form for each employee and send it to the geographically competent URSSAF by post before the start. The founder should retain proof of sending. Once the Siret number is allocated, the declarations should be recorded online. This paper route is important for foreign founders because the absence of a Siret at the moment of signing does not justify an unregistered first day of work.

The application should be addressed to the URSSAF connected with the place where the employee works. A French company with a French establishment should normally work through the employer account for that establishment. A foreign company with no establishment in France has a different route. The URSSAF’s TFE service (the service for foreign firms) is designed for an employer established abroad that wishes to employ someone in France. It can simplify the DPAE, employment contract and social-contribution process. It is not a way to avoid French employment law; it is an administrative route for applying it.

Article R. 243-8-1 of the Social Security Code also recognises the situation in which the employer’s business has no establishment in France. The provision refers to a designated collection body where « l’entreprise de l’employeur ne comporte pas d’établissement en France ». A foreign parent should therefore decide early whether the employee will be employed by a new French subsidiary, a French branch, or the foreign company through the TFE route. Choosing the wrong employer in the contract and then trying to repair the file with a French Kbis can create two incompatible payroll histories.

The first-employer file should contain:

• the signed employment contract and any offer or promise that preceded it;
• the draft articles of association and the acts schedule or specific mandate;
• the INPI filing receipt and the name of the competent commercial registry;
• the DPAE, its transmission receipt and any correspondence about the missing Siret;
• the employee’s identity, social-security information and, where relevant, evidence of the right to work in France;
• the payroll instructions, bank details and applicable collective-bargaining agreement; and
• the occupational-health request, personnel register entry and first payroll records.

Once employment starts, the administrative calendar continues. Article L. 1221-13 requires a unique personnel register in every establishment employing staff, with employees entered in hiring order and at the time of hiring. Article L. 4624-1 provides that the employee’s individual health monitoring includes an information and prevention visit after hiring. Article R. 4624-10 generally places that visit within three months of the effective start of the job, subject to the applicable exceptions. A foreign founder should appoint a French payroll provider or employment adviser before the start date, not after the first payslip has become overdue.

The monthly DSN (déclaration sociale nominative, or monthly social data return) is also part of the first payroll cycle. The DPAE is not the DSN, and a DPAE receipt does not replace wage payment, payslips, social contributions or the personnel register. A reliable calendar should show the signature date, the DPAE date, the actual start date, the first payroll cut-off, the first DSN deadline and the expected date of the Kbis or RNE attestation.

There is a serious reason for this sequencing. Article L. 8221-5 of the Labour Code describes concealed employment by stating that it is « réputé travail dissimulé par dissimulation d’emploi salarié » when an employer intentionally avoids the DPAE formality. Article L. 1221-11 separately provides that failure to respect the prior-declaration obligation can trigger a penalty equal to 300 times the hourly minimum-guarantee rate. Article L. 8224-1 provides that violating the prohibitions in the concealed-work provisions is punishable by three years’ imprisonment and a €45,000 fine. The criminal provision is tied to the statutory conditions, including intention; a late administrative mistake is not automatically the same as a deliberate concealed-employment offence. That qualification is not a reason to delay correction. It is a reason to document the facts and obtain advice quickly.

B. What to do if the Kbis or Siret is delayed or the filing is rejected

A delayed Kbis is not one legal situation. The founder should identify whether the company is awaiting registry review, awaiting a missing document, awaiting a Siret allocation, or has received a refusal. The INPI-operated one-stop shop centralises the filing, but the Kbis is issued by the competent registry after validation. The INPI explanation of company documents distinguishes the RNE registration certificate from the Kbis: the RNE certificate confirms information in the National Business Register, while the Kbis is the commercial registry extract issued by the greffe. A founder should use the document actually available and not describe a receipt as a Kbis.

If the employment contract has been signed but the employee has not started, the cleanest response is to keep the start date conditional on completion of the DPAE and the employer-registration route. The parties can preserve the contract and move the start date by a written amendment if the filing delay makes compliance impossible. The amendment should state the new date and preserve the original recruitment history; it should not backdate the DPAE or create a false period of employment.

If the employee has already started, the founder should not attempt a cosmetic correction. The company should make the DPAE immediately through the appropriate route, preserve the transmission evidence, identify the true first working date, calculate all salary and contribution consequences, and inform the payroll adviser. A later DPAE does not make the original start-date problem disappear. It can, however, demonstrate a prompt effort to regularise the file and prevent the error from continuing. The company should review whether any work was performed before the intended date, whether the employee received instructions, and whether a work-authorisation issue is present.

If the INPI or registry requests a correction, prepare one indexed response rather than uploading disconnected documents. The response should match the company name, proposed registered office, legal form, signatory, beneficial-owner information and foreign-founder documents across the articles, mandate, employment contract and filing. A translation or apostille issue in the founder’s corporate documents can delay registration, but it does not alter the obligation to deal with an employee who is already working or about to start.

If the filing is refused, the founder has to decide whether to correct and resubmit, challenge the refusal, or abandon the planned company and select a different employer structure. The employment contract should not be left floating. If the company will be registered after correction, update the acts schedule and prepare the corporate decision that will take over the contract. If it will not be registered, the signatory may remain personally responsible, and a new contract with the actual employer may be required. The employee’s accrued rights, salary and notice obligations cannot be removed by deleting a draft company name.

Use the following decision table as a first response:

Situation	Can the contract be signed?	Can work start?	Immediate action
Articles and incorporation file prepared, Kbis pending	Yes, for the company in formation, with an acts schedule or precise mandate	Yes only after the DPAE and other first-employer steps	File the DPAE through the paper route if no Siret is available and keep proof
Foreign company has no French establishment	Yes, if the foreign company is correctly identified as employer and the French route is selected	Yes only after the TFE or applicable URSSAF process is completed	Confirm the employer identity and use the foreign-firm service where appropriate
Registration request is incomplete but the employee has not started	Prefer a future start date and preserve the recruitment agreement	Not until the DPAE can be evidenced	Correct the INPI file, obtain the missing Siret information and send the declaration
Employee has already worked without a DPAE	The signature date does not cure the compliance issue	Do not allow further work without immediate advice and correction	File promptly, preserve the timeline, calculate payroll and assess the risk of concealed employment
Company will not be registered	The signatory’s personal exposure must be assessed	The planned company cannot continue as an employer	Stop the project, communicate with the employee and document any replacement employer

Keep the incorporation documents and employment file together after registration. The company should confirm its Siret, Kbis or RNE certificate, URSSAF employer account, occupational-health membership, personnel-register entry, first payslip and first DSN. It should also formally record the takeover of the pre-registration employment commitment. A later audit should be able to reconstruct one uninterrupted chain: authority to sign, contract, acts schedule or mandate, incorporation filing, DPAE, actual start, payroll and corporate takeover.

Tax and corporate records should follow the same logic. The tax administration’s guidance on registering company articles confirms that ordinary articles documenting the formation of a company are often not subject to registration, while particular deeds or clauses can trigger a registration requirement. That is separate from the employment start date, but it illustrates why a founder should classify each document instead of assuming that one filing, one Kbis or one receipt satisfies every French administration.

The broad company-formation hub on French company formation and corporate formalities can be used for the overall sequence. A foreign founder should also cross-reference the existing guide on setting up a business in France, but this narrower question requires its own employee-start timetable. The missing operational link in many formation files is not the choice between an SAS and a SARL; it is the interval between signing the contract, sending the DPAE and receiving the Kbis.

Conclusion

A French company may sign its first employment contract before receiving its Kbis, but the contract must be signed as an act for a company in formation and the takeover mechanism must be prepared from the outset. The future company acquires legal personality only upon registration; before then, the founders or other persons who acted for it can remain personally liable. The acts schedule, precise mandate or later corporate decision is therefore not paperwork to be added after a dispute. It is part of the contract’s risk control.

The employee’s start date is a separate and stricter deadline. The DPAE must precede the actual work, and the absence of a Siret can be handled through the URSSAF paper process rather than by allowing an undeclared first day. Foreign companies without a French establishment should confirm whether the TFE route applies. If registration is delayed or refused, preserve the timeline, correct the filing, regularise payroll and decide who the real employer is. A Kbis pending notice is not a substitute for a DPAE, a payslip, a personnel register or an occupational-health process.

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