The French Court of Cassation maintains the strict distinction in URSSAF audits

Published on 27 october 2023


Employment & Labour Law

In a ruling handed down on 28 September 2023 (no. 21-21.633), the Cour de cassation confirmed its strict assessment of the legislation governing inspection operations, drawing a distinction between the right to interview employees of the company being audited and the right of those employees to submit documents.

In the event of an URSSAF inspection, the contributing company is required, in accordance with the provisions of article R.243-59 of the Social Security Code, to make available to the inspecting officers any documents and provide access to any information requested.

  • What documents can the inspectors request?

Apart from pay slips, the Social Security Code does not specify the list of "documents necessary for the performance of the inspection" that inspection officers may request.

The Audited Contributor's Charter provides an indicative list of documents that may be requested:

→ social documents: nominative social declaration, contribution slips, annual adjustment declarations, pay slips, personnel files, employment contracts, etc.

→ accounting documents: balance sheets, accounting ledgers, accounting balances, accounting records, etc.

→ tax documents: tax returns, tax notices, etc.

→ legal documents: company articles of association, settlements, industrial tribunal rulings, etc.

→ invoices from subcontractors and fees, or invoices issued by a self-employed person proving turnover or income, proof of expenses (restaurant bills, vehicle registration certificates, etc.).

In any event, the letter of observations issued at the end of the audit must list the documents consulted during the audit.

  • Who can the inspection officers interview?

→ With regard to the right to be interviewed, Article R.243-59 of the Social Security Code authorises inspection officers to interview persons paid by the employer, regardless of the qualification of the remuneration they receive.

The Court of Cassation has ensured that this text is applied strictly: the right to be interviewed is limited to persons paid directly by the employer, which is not the case for the head of the accounting department of another company in the group, or persons paid by a service provider of the person being audited.

→ With regard to the right of communication, it is exclusively to the employer or its legal representative that the inspection officers must apply to request the documents required for the inspection.

The audit and the related adjustment must be cancelled if the auditors contact the audited company's chartered accountant directly to obtain documents, or the transport authority (to check exemption from the mobility payment), or a company which, although belonging to the same group as the audited company, remains a third party to the audit.

Nor are officers authorised to search for and seize the documents they need themselves.

In its ruling of 28 September 2023, the Court of Cassation confirms the attention it pays to the strict application of the rules governing URSSAF inspections.

  • URSSAF's position invalidated by the Court of Cassation

In this case, URSSAF argued that its agents could ask the employee of the company being audited for the documents needed to carry out the audit, without having to check whether the head of the company had given them a mandate to do so. URSSAF argued that the employee was not a third party in relation to the employer. It also considered that the authorisation given by the employer to its employee to communicate the documents requested by its agents could result from the absence of opposition by the employer to the said communication.

This was wrong.

The Court of Cassation's response is unambiguous: the audit operations are irregular if the recovery inspector asks an employee in the audited company's accounts department to provide him with a table relating to the general reduction in contributions, data on the basis of which the adjustment is made, without it being established by URSSAF that this employee had received authorisation from the employer to respond to this request.

In addition, the Court ruled that this table was not included in the list of documents consulted by the tax inspector mentioned in the letter of observations.

  • Irregularity of audit operations in the event of a document being requested from an employee without the employer's consent

The Court of Cassation had already ruled that an inspection procedure was irregular when URSSAF agents, in the absence of the manager and without his consent, forced one of the company's employees to open a cupboard and the drawers of an office, and to hand over, at their insistence, the schedules contained therein, which they had taken away for examination.

The solution just reached by the Cour de cassation appears to be more general: if the documents used to establish the adjustment were obtained, at the request of URSSAF agents, from an employee of the company being audited and without the employer's consent, the audit operations are irregular. There is no need to prove that the employee was subjected to pressure.

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