BSPCE lawyer in Paris: choose and grant BSPCE, BSA or bonus shares.

The starting point is the status of the person, not the company's preference. BSPCE are open only to employees, to directors under the tax regime of employees and to members of the board of directors, the supervisory board or the equivalent body provided for in the articles of an SAS (Article 163 bis G of the French General Tax Code). Being a consultant paid on invoice, an investor or a director not taxed like an employee does not, on its own, give access to BSPCE, unless the person also holds a function covered by the text. For these persons, the company may issue share subscription warrants, which are transferable securities giving access to the share capital within the meaning of Article L. 228-91 of the Commercial Code, at a price that must be justified. Bonus shares, governed by Article L. 225-197-1, benefit employees and certain corporate officers, with a ceiling expressed as a percentage of the share capital and a vesting period of at least one year. The second criterion concerns the company: age, shareholding, tax regime, any listing. The third concerns cost: taxation of the beneficiary, social security charges and the employer contribution. The firm weighs these three criteria for each person before drafting the resolutions.

Law No. 2026-103 of 19 February 2026 amended Article 163 bis G of the General Tax Code. Its new wording has been in force since 21 February 2026 and, according to the application note under the article, applies to warrants granted from 1 January 2026. It relaxes two points. First, the threshold of holding by individuals falls from 25% to 15% of the share capital: this share must belong to them continuously and without an intermediary, unless a company is interposed of which at least three-quarters of the share capital is itself held by individuals. The holdings of certain funds and investment companies remain disregarded for this calculation, provided there is no relationship of dependence. Second, the company may grant warrants to the staff and directors of its sub-subsidiaries, where the product of the shareholding percentages reaches at least 75%, whereas the earlier text stopped at subsidiaries. The text also specifies that the issuing company must hold the subsidiary directly, and that subsidiaries and sub-subsidiaries must meet the other conditions, except the one relating to holding by individuals. The other conditions remain: a joint-stock company subject to corporate income tax, registered for less than fifteen years, with a market capitalisation below €150 million if its securities are listed, and not created through a restructuring outside the exceptions. A company ruled out in 2025 by the 25% threshold can therefore review its situation.

The price at which the beneficiary will subscribe for the shares is set on the day of the grant, by the extraordinary general meeting or, on its delegation, by the management body. Paragraph III of Article 163 bis G of the General Tax Code adds a rule specific to companies that have just raised funds: if a capital increase involving securities with equivalent rights took place in the six months preceding the grant, the price cannot be lower than the issue price then used. Two discounts are allowed. The first reflects the loss of economic value of the security since the issue; the second reflects the difference in rights where investors received preference shares that are more protective than the ordinary shares resulting from the warrants. The text prescribes no form, but a written analysis kept with the minutes makes it possible to justify each of them. Outside those six months, the price rests on a valuation consistent with the company's situation. A price below this floor takes the warrants outside the conditions of paragraph III, on which paragraph I of the same article makes the beneficiary's tax regime depend; a price that is too high removes the point of the plan. The firm compares the proposed price with the latest transactions and with the rights attached to each category of securities.

For shares subscribed on exercise of warrants from 1 January 2025, Article 163 bis G of the General Tax Code distinguishes two gains, according to the application note on the Finance Act for 2025 placed under the article. The first, known as the employment benefit, is the difference between the value of the shares on the day the warrants are exercised and the acquisition price set at the grant. It is subject to income tax at the flat rate of 12.8% provided for in Article 200 A or, by option, under the rules for salaries and wages. This rate rises to 30% where the beneficiary has carried out their activity or office in the company for less than three years at the date of the sale; the text takes into account, depending on the case, periods spent in a subsidiary, a sub-subsidiary or the issuing company. Tax falls due in the year the shares are sold, converted to bearer form, leased or made the subject of an act of disposal, and not in the year of exercise. The second gain, between the sale price and the value of the shares on the day of exercise, falls in principle under the capital gains regime of Article 150-0 A. Where this gain is obtained in return for the person's functions, Article 163 bis H maintains that regime only up to a limit calculated from three times the change in the real value of the company, taxes the portion above it like a salary and requires that the shares have been at risk of loss. Shares subscribed before 2025 fall under the earlier rules. The timing of the beneficiary's departure and that of the sale therefore have a direct effect on the rate. The firm checks that the plan and the registers make it possible to reconstruct these dates.

A written promise may bind the company, depending on its terms and the undertaking actually given, even if the grant then depends on a decision of another body. The Social Chamber upheld a court of appeal that had held liable a company which had undertaken, in a letter of a contractual nature signed with an executive-level employee, to let him take part in the group's employee share incentive plan, and had acted as a guarantor (porte-fort) that its directors would honour that undertaking. The Court recalls that "the guarantor, who owes an autonomous obligation to achieve a result, is liable to the beneficiary of the promise for the consequences of the non-performance of the promised undertaking" (Cass. soc., 7 October 2026, No. 24-17.294) (our translation). The judgment nevertheless set aside the award of €7,000,000 in damages, the court of appeal having assumed that the employee would have sold all the shares; the Court holds that "the court of appeal, which compensated a hypothetical loss, infringed the aforementioned provisions" (Cass. soc., 7 October 2026, No. 24-17.294) (our translation). For the company, the lesson is twofold: check eligibility and decision-making capacity before writing, then word the promise with its conditions and gauge the scope of any guarantee of this kind. For the beneficiary, the letter and the exchanges that precede it form the proof of the undertaking, and the loss must be quantified in proportion to the chance actually lost.

If the plan makes final vesting conditional on the employee's continued presence, leaving before the end of the period in principle deprives the employee of the shares. Where the dismissal is held to be without genuine and serious cause, the Social Chamber nonetheless does not award the shares. It set aside a judgment that had recognised an employee as a shareholder, holding that the employee "cannot claim the allocation of the shares and recognition of shareholder status, but only compensation for the loss resulting from the lost chance of definitively acquiring the bonus shares" (Cass. soc., 26 February 2025, No. 23-15.072) (our translation). The employee can therefore obtain a sum of money compensating the lost chance, and not the shares themselves. Conversely, where the dismissal rests on a genuine and serious cause, no compensation is due for options the employee could not exercise: the Court ruled on the merits, noting that "the employee's dismissal had occurred for genuine and serious cause, so that he could not claim any compensation" (Cass. soc., 4 June 2025, No. 23-17.691) (our translation). This second decision, unfavourable to the employee, concerns stock options, but its reasoning on the cause of the departure is a warning for any plan containing a presence condition.

Not necessarily. The Social Chamber has excluded them where the shares were not consideration for work. In a case where the collective agreement based dismissal compensation on the elements of pay subject to contributions, the Court upheld the court of appeal, which had excluded bonus shares acquired by the employee three years after they were granted and valued only at their stock market price: it notes that "the valuation of the bonus shares granted to the employee, which were not of the nature of a salary, could not be taken into account in setting the compensation in dispute" (Cass. soc., 22 May 2024, No. 22-18.182) (our translation). The outcome is unfavourable to the employee who had hoped to see their compensation increased. It does not, on its own, settle every situation: the wording of the applicable collective agreement, the nature of the conditions set by the plan and the way the benefit was valued remain to be examined. For the company, it confirms the value of plan rules that describe the grant as a scheme for sharing in the capital, distinct from the agreed remuneration. For the employee, the stakes shift to the lost chance where the departure deprived them of the shares.

Where the dispute arises from the employment relationship, the employment tribunal (conseil de prud'hommes) has jurisdiction. The Social Chamber upheld a court of appeal that had accepted that jurisdiction for BSPCE granted to an employee in connection with the employment relationship, that court having recalled that "the grant by the employer of an option entitling the holder to subscribe for shares or other incentive items is an accessory to the employment contract" (Cass. soc., 8 January 2025, No. 23-15.044) (our translation). More recently, a former employee had applied to the commercial court for the issue of shares corresponding to warrants already exercised, arguing that only the other tranches fell within the employment tribunal's remit. The Paris Court of Appeal found that his employment tribunal claim also covered those warrants, held the distinction artificial and upheld the order ruling out the commercial court, noting that "it follows that there is a direct link between the BSPCE, whichever they are, and the examination of the dismissal" (CA Paris, pôle 1 ch. 2, 15 October 2026, No. 26/05198) (our translation). It adds that the person concerned had not yet acquired shareholder status. This decision is unfavourable to a strategy of splitting claims between two courts. Before acting, the firm therefore checks whether the dispute really concerns company law, for example the validity of an issue, or the consequences of the termination of the contract.

They may be. The Second Civil Chamber holds that share subscription warrants offered in connection with work and acquired on preferential terms generate a benefit that falls within the base for contributions. It specifies that "the preferential nature of the terms on which the share subscription warrants are granted results both from the status of the beneficiaries as employees or corporate officers and their limited number, and from the terms of issue and transferability of the warrants" (Cass. 2e civ., 28 September 2023, No. 21-20.685) (our translation), the price paid being only an indication. A subscription price calculated by a valuer is therefore not enough to rule out the risk if the warrants are reserved for a few directors and are non-transferable. The same decision fixes the point at which the calculation is made: abandoning its earlier case law, the Court now holds that "the event giving rise to the social security contributions relating to this benefit is understood as the date of sale or realisation of the share subscription warrants" (Cass. 2e civ., 28 September 2023, No. 21-20.685) (our translation). The benefit is then measured on the gain obtained or the saving made. This outcome, unfavourable to the company in that case, means the social security treatment of BSA must be examined from their issue, and not at the time of an inspection.

The favourable social security treatment assumes that the grant follows Articles L. 225-197-1 et seq. of the Commercial Code. Failing that, URSSAF may add the benefit back into the contribution base. The Second Civil Chamber ruled, in a dispute where zero-price call options had been analysed as bonus shares, that "the event giving rise to the social security contributions relating to the benefit resulting from allocations of shares without consideration is understood as the final allocation of those shares to their beneficiaries at the end of the vesting period" (Cass. 2e civ., 5 September 2024, No. 22-18.293) (our translation). The benefit is therefore measured on the value of the shares at that date, and not on their resale; for lack of probative evidence of that value, the company could not challenge the inspector's valuation. Delivered on shares acquired in 2012, under an earlier wording of Article L. 242-1 of the Social Security Code, this decision is unfavourable to the contributing company on this point, the partial set-aside concerning another head of the claim. In another case, by contrast, the Court set aside a judgment that had upheld an assessment for the employer contribution under Article L. 137-13 of the Social Security Code for shares that had not been granted under the conditions of the Commercial Code (Cass. 2e civ., 25 November 2021, No. 20-16.997). The inspection therefore looks first at the validity of the plan, which determines the applicable regime.

In an SAS, the decisions that the law entrusts to the extraordinary general meeting of a public limited company (société anonyme) on capital increases are taken collectively by the shareholders, in the forms provided for in the articles of association (Article L. 227-9 of the Commercial Code). The issue of transferable securities giving access to the share capital, such as BSA, is authorised under the rules of Articles L. 225-129 to L. 225-129-6, on a report of the management body and a special report of the statutory auditor (Article L. 228-92). The powers that these texts entrust to the board of directors are exercised by the chairman of the SAS or by the directors designated in the articles (Article L. 227-1). On a decision to increase the capital in cash, or on a delegation of authority to do so, a company with employees must also put to the vote a resolution for an increase reserved for employees who are members of a savings plan, unless the increase results from transferable securities giving access to the capital that have already been issued and save for an exception specific to certain controlled companies (Article L. 225-129-6). The Commercial Chamber accepted that a later vote on that resolution alone "was sufficient to regularise that capital increase" (Cass. com., 28 November 2018, No. 16-28.358) (our translation). It is better to avoid this: the firm prepares all the resolutions for a single meeting.

Article L. 225-197-1 of the Commercial Code sets several ceilings. The total number of shares granted without consideration may not exceed 15% of the share capital at the date of the grant decision, not counting shares not definitively granted at the end of the vesting period or those released from the holding obligation. In a company that does not exceed the European thresholds for small and medium-sized enterprises, the articles may raise this ceiling to 20% for grants reserved for certain categories of employees. The percentages rise to 30% where the grant benefits employees representing at least a quarter of the payroll and half of the headcount, and to 40% where it benefits all employees; above 15% or 20%, the difference between individual allocations may not exceed a ratio of one to five. No share may be granted to an employee or officer who already holds more than 10% of the share capital, nor one that would take them past that threshold; only securities held directly for less than seven years count for this calculation. As to cost, the 30% employer contribution of Article L. 137-13 of the Social Security Code does not apply, up to a certain limit per employee, to grants by SMEs and mid-sized companies that have never paid dividends, subject to the European de minimis aid rules.

Stock options are subscription options granted by the management body, on authorisation of the extraordinary general meeting given for thirty-eight months at most (Article L. 225-177 of the Commercial Code). In an unlisted company, the price must result from objective valuation methods taking into account net assets, profitability and prospects, failing which revalued net assets, and options on those securities are reserved for the employees of the company or of certain related companies, and for the executive officers referred to in Article L. 225-185 of the Commercial Code, which sets the conditions. The benefit derived from the exercise is taxed as salaries and wages (Article 80 bis of the General Tax Code), and the employer owes a 30% contribution, payable the month following the grant decision (Article L. 137-13 of the Social Security Code). BSPCE, for their part, cover a wider population, including members of collegiate bodies, and their exercise gain benefits from the flat rate where the beneficiary has at least three years of activity in the company at the date of the sale. On the other hand, they are reserved for companies that meet the conditions of Article 163 bis G. For an eligible young company, BSPCE are often better suited; beyond that, the comparison is made on the overall cost of the plan.