Morocco is among the countries that have chosen to guarantee freedoms related to commercial activities in the constitution. Indeed, Article 35 of the highest text in the national legal order states in its first paragraph: “The State guarantees freedom of enterprise and free competition.”
Thus, since the initial attempts to codify commercial activities, it has been commonly accepted that entrepreneurial practices give rise to various and diverse institutions, and subsequently, the law intervenes to structure and organize their functioning and interaction. Nevertheless, certain ambiguities may persist in this well-established process. Such is the case for the status of the independent manager (gérant libre), which can sometimes be confused with that of a company manager or an employee. For this reason, consulting the law is essential as a preliminary step.
In this regard, Article 152 of the Commercial Code specifies the following: “Any contract by which the owner or operator of a commercial fund leases it totally or partially to a manager who exploits it at their own risk and peril is governed by the following provisions.” On the other hand, Article 153 of the same law provides: “The independent manager has the status of a merchant and is subject to all obligations arising therefrom.”
This overview of the Commercial Code establishes two basic principles: firstly, the necessity to draft a formal contract between the owner of the fund and its manager, namely the independent management contract; secondly, that said contract grants the manager merchant status, along with the benefits and obligations arising from it.
Indeed, this is highlighted in judgment No.323/2022 dated 06/04/2022 in file No.2540/5/2/2019, wherein the Court of Cassation specified the following: “The independent management contract, as provided for in Articles 152 to 158 of the Commercial Code, is any contract by which the owner or operator of a commercial fund agrees to lease all or part of it to an independent manager who exploits it under their own responsibility.”
Similarly, judgment No.188/2023 dated 15/03/2023 in file No.926/3/2/2020, wherein the Court of Cassation specified: “The Court properly justified its decision when it refused to take into consideration the oral contract, the existence of which could have been supported by testimony, based on the legal provisions requiring a written contract in matters of independent management.”
It is clear that although there might be similarities between the status of an independent manager and that of a company manager, it goes without saying that these are fundamentally distinct entities, both conceptually and practically in commercial activities. After distinguishing it from the company manager, the question arises regarding the status of an employee.
This question has been addressed by the Court of Cassation on several occasions. For instance, judgment No.48/2022 dated 18/01/2022 in file No.831/1/5/2021 stated the following: “When the court considered that the independent management contract, whose effective execution had begun, constituted a new contract that terminated the employment relationship, both in terms of its nature and duration, since the elements constituting the employment relationship, such as subordination, control, direction, and salary payment, no longer existed in independent management, it rendered its judgment on a legally sound, correctly founded, and sufficiently motivated basis.”
Similarly, judgment No.37/2023 dated 18/01/2022 in file No.302/5/1/2021 specified: “The criteria distinguishing an independent management contract from an employment contract are the elements of subordination and control. In addition to the fact that the plaintiff did not provide proof of a written independent management contract between himself and the defendant in accordance with the requirements of Articles 152 and subsequent of the Commercial Code governing independent management contracts, the two plaintiff witnesses heard at first instance confirmed the existence of an employment relationship within the legal meaning of subordination, control, and salary payment, thus rendering the employer’s argument that there was no employment relationship and that he was bound only by an independent management contract unfounded.”
These two judgments, part of a long series rendered on this subject by the Court of Cassation, clearly show that the independent manager cannot be confused or equated with an employee, for two fundamental reasons.
Firstly, the status of independent manager is subject to imperative and unavoidable legal formalism, which is entirely opposed to an employment relationship that can be proven by all means of evidence, in accordance with the provisions of Article 18 of the Labor Code.
Secondly, what characterizes an employee is subordination to the employer, who directs and remunerates them, which is entirely contradictory to the very nature of commercial activity, insofar as the independent manager is neither subordinate to, directed by, nor remunerated by the owner of the fund. In light of the above, it is important to underline that independent management is a commercial activity in its own right, with its own legal regime, distinct from similar concepts.
