Which French law structures are affected by the General Data Protection Regulation?

“The data controller is the legal entity (company, municipality, etc.) or natural person who determines the purposes and means of processing, i.e. the objective and the way in which it is carried out” (CNIL)

The GDPR applies to any organization, public or private, that processes personal data on its own behalf or not, therefore:

• • That it is established in the territory of the European Union,

• • Or that its activity directly targets European residents.

In France, there are several types of private, public, and associative legal structures. Here is a non-exhaustive list of the main structures concerned.

PRIVATE LEGAL STRUCTURES

1. Sole proprietorship (EI)

2. Single-member limited liability company (EURL)

3. Limited liability company (SARL)

4. Public limited company (PLC)

5. Single-member simplified joint-stock company (SASU)

6. Simplified joint-stock company (SAS)

7. General partnership (SNC)

8. Limited partnership (SCS)

9. Limited partnership with shares (SCA)

10. Cooperative and participatory society (SCOP)

11. Civil Real Estate Company (SCI)

12. Limited liability professional practice company (SELARL)

PUBLIC LEGAL STRUCTURES

1. Public administrative establishment (EPA)

2. Public establishment of an industrial and commercial nature (EPIC)

3. Mixed economy company (SEM)

4. Local public company (SPL)

5. Municipal public establishment / town hall (EPC)

ASSOCIATIVE LEGAL STRUCTURES

1. Federation

2. Association law 1901

3. Association recognized as being of public utility (ARUP)

4. General Interest Association (AIG)

5. Cultural association

6. Sports association

7. Charity

8. Professional unions

LOCAL AUTHORITIES

Article 72 of the Constitution provides for the existence of different types of local authorities:

1. The municipalities,

2. The departments,

3. The regions,

ECONOMIC INTEREST GROUPS

1. The EIGs.

PRIVATE LEGAL STRUCTURES

Private legal entities are entities created by individuals or legal entities to carry out a commercial, industrial, or craft activity. They may be subject to corporate tax (IS) or income tax (IR). Public legal entities are entities created by the State or local authorities to fulfill missions of general interest. They are subject to specific rules regarding control and financing.

Each of them must comply with the GDPR – General Data Protection Regulation, in particular because they hold all of their employees' data to establish pay slips, and for a large majority of them, depending on their activity and the sensitivity of the data that they are required to process.

PUBLIC LEGAL STRUCTURES

Public legal structures are legal entities created by the State or local authorities to fulfill missions of general interest. They are distinguished from private legal structures by several particularities, including:

• Public purpose: The main mission of public legal structures is to fulfill a mission of general interest, defined by the State or local authorities. They must therefore serve the general interest and not that of an individual or a group of individuals.

• Public control: Public legal structures are subject to public control, exercised by state bodies or local authorities. This control aims to guarantee the proper use of public funds and compliance with the general interest mission.

• Public governance: Public legal structures are governed by individuals appointed by the state or local authorities, not by shareholders or private owners. They are therefore subject to specific governance rules, which aim to ensure transparency and accountability.

• Public funding: Public legal structures are financed largely by public funds, from the State or local authorities. They can also benefit from donations and subsidies, but their main funding remains public.

• Public accountability: Public legal structures are responsible for the proper use of public funds and the fulfillment of their public interest mission. They can be prosecuted for failure to fulfill these obligations.

In summary, public legal structures have as their main mission to fulfill missions of general interest, are subject to public control, are managed by persons appointed by the State or local authorities, are financed largely by public funds and are responsible for the proper use of these funds and the accomplishment of their mission.

ASSOCIATIVE LEGAL STRUCTURES

Each type of association or federation has its own specificities in terms of operating rules, responsibilities, funding, etc., and must be chosen based on the association's objectives. Each of them must comply with the GDPR – General Data Protection Regulation, and this can be critical depending on the sensitivity of the data it is required to process.

These associative legal structures are legal entities created by individuals or legal entities, whose aim is to pursue non-profit objectives and to implement projects or activities in various fields such as culture, sport, solidarity, the environment, etc. They are distinguished from public and private legal structures by several particularities, including:

• Freedom of association: Legal associative structures are created on the basis of the free membership of their members, without them needing to obtain prior authorization from the State or any other public authority. This freedom is enshrined in international and national texts relating to human rights and fundamental freedoms.

• Non-profit: The legal structures of associations aim to pursue disinterested goals, without seeking to make profits for their members or their managers. Any profits generated by their activities must be reinvested in the achievement of their objectives.

• Autonomy: The associative legal structures are managed by their members, who have a great deal of autonomy in the organization of their activities, the management of their resources and the definition of their strategy.

• Transparency: Legal associative structures are subject to transparency rules, which aim to guarantee the proper management of their resources and the legitimacy of their decisions. In particular, they must keep regular accounts, publish their annual accounts and report on their activities to their members.

• Responsibility: Legal associative structures are responsible for their actions and decisions to their members, but also to third parties with whom they may work. They can be prosecuted in the event of fault or failure to meet their obligations.

In summary, associative legal structures aim to pursue non-profit objectives, are created on the basis of the free membership of their members, have a great deal of autonomy in their management, are subject to transparency rules and are responsible for their actions and decisions.

LOCAL AUTHORITIES

In France, a territorial authority is a legal entity governed by public law which exercises certain powers within its territory which are devolved to it by the State.

Article 72 of the Constitution provides for the existence of local authorities; they take "decisions for all the powers which can best be implemented at their level".

This same article provides that these communities are to administer themselves freely through elected councils. They thus have legal and financial autonomy but only have administrative powers assigned by law.

Local authorities are distinguished from other public legal structures by several particularities, notably:

• Proximity: Local authorities are local structures that are as close as possible to the needs of citizens. They are responsible for providing local public services such as regional planning, education, culture, sport, health, transport, etc.

• Autonomy: Local authorities have a certain autonomy in their management and organization, even if it is limited by law. They can thus define their local policy and adopt rules adapted to their territory.

• The elective nature: Local authorities are run by local elected officials, who are elected by citizens during local elections. These elected officials are responsible for making important decisions for the management of the local authority.

• Financing: Local authorities have their own budget, which is largely made up of local taxes (property tax, housing tax, etc.) and state grants. They can also collect their own revenue depending on the public services they provide.

• Cooperation: Local authorities can cooperate with each other to carry out joint actions, share equipment or services, or pool their resources. This cooperation can take place at the inter-municipal, departmental, regional or international level.

In summary, local authorities have the mission of providing local public services, have a certain autonomy in their management and organization, are led by local elected officials, have their own budget and can cooperate with each other.

ECONOMIC INTEREST GROUPS and the GDPR

An economic interest group (GIE) is a group with legal personality that allows its members (of which there must be at least two) to pool some of their activities in order to develop, improve or increase the results of these activities while maintaining their individuality. The group may have a civil or commercial purpose. This intermediate structure between a company and an association, whose purpose can only be to extend the activity of its members, was established by the ordinance of September 23, 19672, now incorporated into the Commercial Code in Articles L251-1 [archive] et seq.

The EIG is recorded in a written document which contains a certain amount of information and it must be registered in the trade and companies register (RCS).

The members of the EIG are jointly and severally liable for the debts, which removes part of its interest and makes its use difficult.

However, the EIG has the advantage of being subject to very flexible legal rules, particularly with regard to its share capital (possibility of incorporation without capital), its purpose (which can be civil or commercial) or its organizational methods. Great importance must be given to the drafting of the purpose of the EIG because the group is committed to third parties by any act of the directors which falls within this corporate purpose.

The choice of the EIG in the context of a project must be made with caution, it limits the possibilities of subsequent diversification if necessary, and in addition, the costs of a possible transformation of the company name will generally be prohibitive from a tax point of view.

A GIE is made up of several companies. A person recruited by this group will work part-time for these companies.