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Starting up or running a business in the marine fishing sector involves much more than simply mastering navigation and catching techniques. Choosing the right legal structure, understanding your social obligations and knowing the exact status of your business are fundamental steps in ensuring the long-term future and security of your project. The implications can be numerous, affecting both taxation and the social protection of the fisherman and his family. Our firm has observed that many people have questions about these essential aspects.
This article aims to clarify the main points concerning the legal and social framework for professional maritime fishing companies in France. We'll be looking at the legal nature of the business, the different forms it can take, the important role of the spouse and the specific rules governing working relationships on board.
The legal nature of professional fishing activities
First and foremost, it is important to define what is meant by sea fishing. According to an old but still fundamental definition resulting from the decree-law of 9 January 1852, it involves "catching animals and harvesting marine plants, at sea and in those parts of rivers, ponds and canals where the water is salty".. This activity can be carried out from a ship, but also from the shore, such as fishing on foot or harvesting seaweed.
The question of whether this activity is of a civil (agricultural) or commercial nature has long been the subject of debate. The Framework Law on Maritime Fishing and Marine Cultures of 18 November 1997 provided a long-awaited clarification. Article 14 states that "any maritime fishing activity carried out on a professional basis on board a vessel with a view to marketing the products is deemed to be commercial".. This classification has direct consequences for the fishermen concerned, particularly in terms of administrative and tax obligations and compliance with the rules for accessing and preserving the resource.
This makes registration in the Trade and Companies Register (RCS) compulsory. This registration also gives rise to rights, such as the right to vote and stand for election in commercial courts or chambers of commerce and industry (CCI). From a tax point of view, if a company sells its only vessel, it can be presumed to be continuing in business, subject to certain conditions, so that capital gains are not taxed immediately. It should be noted, however, that despite this commercial status, small-scale fishermen are still exempt from business tax (since replaced by the Contribution Économique Territoriale - CET) and are not subject to the additional tax for CCI costs.
However, commercial classification is not always automatic and depends on the actual conditions under which the business is carried on. A notice issued by the RCS Coordination Committee in 2018 points out that a distinction must be made between two situations. If the activity relies mainly on the personal technical skills of the fishing master, his presence on board as captain (often involving a single vessel or a very limited number) and his direct and dominant involvement in fishing, the activity may retain a non-commercial character. On the other hand, if the entrepreneur operates vessels whose command is delegated to agents, concentrating on the organisation of human and material resources with a view to speculation, the activity is clearly commercial. The analysis is therefore made on a case-by-case basis.
What about professional shore fishing? The law is different here. Article 54 of the same 1997 law specifies that professional foot fishermen are affiliated to the Mutualité sociale agricole (MSA). Their activity therefore retains an agricultural nature, and is not commercialised or registered with the RCS.
Choosing the legal form for your fishing business
The choice of legal structure is an important decision for any entrepreneur, including those in the fishing industry. Several options exist, ranging from the simplest form to more structured companies.
The sole proprietorship is still a common form of business, particularly in small-scale fishing. The simplicity of setting it up and managing it can be attractive. However, it has one major disadvantage: the confusion between the entrepreneur's personal assets and his business assets. If the business runs into financial difficulties, the fisherman's personal assets (house, car, etc.) can be seized to pay off business debts. Past economic crises in the sector have shown the dangers of this situation.
To offset this risk, the 1997 policy law encouraged the development of the small-scale fishing company. Article 21 defines it as a company subject to the partnership tax regime (such as a EURL or SNC) or a limited liability company (SARL), where 100% of the shares and voting rights are held by one or more fishermen who effectively manage the company. Additional condition: these associated fishermen must be on board the vessel or vessels owned by the company (or of which it is the majority co-owner).
This form of company has a number of significant advantages. It allows a clear separation between the assets of the company and those of the partners, thereby protecting the latter's personal assets. What's more, small-scale fishing companies benefit from the same exemptions as sole traders: exemption from CET and employers' contributions to the Établissement National des Invalides de la Marine (ENIM). The legislator wanted to ensure that the move to a company would not disadvantage small-scale fishermen and their families compared with a sole proprietorship.
The law also provides for mechanisms to facilitate investment and transfers within these companies. For example, the majority shareholding requirement for on-board fishermen can be relaxed if a cooperative shipowner is also a shareholder. There are also fishing vessel financing companies (SOFIPECHE) whose shares can be held by third parties benefiting from tax breaks, thus helping to finance vessels operated by small-scale companies. These measures demonstrate a clear desire to modernise the legal structures of small-scale fishing.
Finally, other forms of commercial company (SAS, SA, etc.) are of course possible, particularly for larger vessels or structures with diversified activities, but they do not benefit from the specific advantages of the small-scale fishing company. The choice will depend on the size of the company, its development plans and its willingness to join forces.
The role of the spouse in the fishing business
The role of spouses, very often women, in the success of fishing businesses has long been underestimated or insufficiently recognised in law. The 1997 policy law marked a significant step forward in this area.
Article 16 of this law recognises the right to a pension for the spouse of a shipowner who actively participates in the running of the business. Subject to meeting certain conditions, notably age (55) and permanent cessation of activity in the company, this spouse can claim a pension from the seafarers' pension fund (ENIM). This is an important recognition of the often invisible work carried out ashore (administrative management, sales, logistics, etc.).
In addition, the law provides protection in the event of maternity or adoption for the spouse of a fisherman affiliated to the ENIM. Article 17 provides for partial cover of the costs incurred in replacing her in her duties within the company during her absence.
Lastly, if the spouse of a maritime business owner chooses to register as an associate in the Trade and Companies Register, he or she acquires rights of active participation in business life. Article 18 specifies that either spouse may then take part in the general meetings of the companies concerned. professional bodies (cooperatives, mutual societies, maritime credit) and be eligible for election to their management bodies. This provision strengthens recognition of the spouse as a genuine partner in the company.
Labour relations on board: a specific framework
Working at sea, and particularly in the fishing industry, has its own specific characteristics, which justify a special framework for social relations between the shipowner and the sailors on board. While the Transport Code (which has integrated and replaced the former Maritime Labour Code) and the Labour Code provide the general framework, there are some adaptations.
The maritime employment contract formalises the employment relationship. It may be for a fixed term (CDD) or for an indefinite period (CDI). The abusive practice of stringing together a series of very short fixed-term contracts (sometimes lasting just one week), justified by the share-based remuneration system, has been curbed. The 1997 Framework Act (article 46) put an end to this derogation specific to the fishing industry, making contracts subject to the conditions of ordinary law under the Maritime Labour Code (now the Transport Code). Similarly, the procedure for dismissing a seafarer must now comply with the general rules set out in the Labour Code, offering greater guarantees for the employee. The law also abolished certain old provisions that were unfavourable to seafarers, such as automatic termination of the contract in the event of injury or illness.
The remuneration of fishermen is another special feature. The traditional system is that of remuneration "by share". Article 46-III of the 1997 law defines it as consisting of "in whole or in part as a share of the proceeds of sales or of other specified components of sales".. This system links the seaman's remuneration directly to the success of the fishing campaign. To guarantee transparency, the shipowner must inform the sailors at least every six months of the accounting information used to calculate their share.
Although the SMIC (Salaire Minimum Interprofessionnel de Croissance) has been applicable to the fishing industry since 1950, its practical application can be complex due to variations in actual working hours at sea. To make things easier, the law provides that national professional agreements or branch agreements may set a fixed weekly reference period for calculating the minimum wage, irrespective of the hours actually worked.
With regard to working hours and rest periods, fishing companies are subject to the provisions of the Transport Code concerning weekly rest periods and those of the Labour Code concerning the organisation of working hours. Apprenticeships for young people on board are also governed by the Labour Code. Safety on board and the protection of seafarers' health are constant concerns, governed by extensive regulations.
Optimising the legal and corporate structure of your fishing business is essential to securing your activity and your investments. The choices you make at start-up or during the life of your business can have lasting consequences. For a advice tailored to your specific situation as a shipowner or owner-fishermanIf you have any questions, please do not hesitate to contact us to discuss your options.
Sources
- Commercial Code (registration, commercial companies)
- Code rural et de la pêche maritime (professional organisation, agricultural activities, certain codified provisions)
- Transport Code (Legislative Part V: Seafarers; Regulatory Part: in particular Book V on maritime labour, replacing the former Maritime Labour Code)
- Labour Code (redundancy, working hours, apprenticeships)
- Decree-law of 9 January 1852 on maritime fishing (founding principles, definition of fishing)
- Law no. 97-1051 of 18 November 1997 on the orientation of maritime fishing and marine cultures (commerciality, artisanal companies, spouses, social relations)
- General Tax Code (tax aspects, CET)
- Opinion of the Comité de Coordination du Registre du Commerce et des Sociétés (CCRCS) no. 2018-17 (clarification on commerciality)
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