Facts
This case concerns an appeal by the Swiss National Accident Insurance Fund (CNA), the appellant, against a limited liability company (the Sàrl) and its sole shareholder and managing director, the respondents, who are represented by counsel. The dispute concerns whether the activity performed by the shareholder for the Sàrl from 1 January 2014 should be classified as employment or self-employment, within the framework of compulsory accident insurance (art. 1a AIA).
According to the commercial register, the respondent has operated a sole proprietorship since November 1996, whose purposes are the trade and repair of motorcycles and mopeds. In 2009 he alone founded the Sàrl, of which he is the sole managing partner with individual signing authority, with the purpose of trading, buying, selling, repairing and renting motorcycles, cycles, accessories and parts. From 1 April 2009, the Sàrl took over the sole proprietorship; the Sàrl employed three salaried workers, while the respondent declared that he was not an employee of the Sàrl. The final premium invoices for 2009 to 2013 were issued accordingly.
In July 2014, the CNA held that the respondent did not meet the conditions for self-employment and had to be insured as a partner working in the business. By decision of 23 July 2014, confirmed on objection on 3 December 2014, it found dependent employment from 1 January 2014. This decision was annulled by the Social Insurance Chamber of the Court of Justice of the Canton of Geneva. A new decision of 19 September 2016, confirmed on objection on 28 December 2017, again found dependent employment with the Sàrl from 1 January 2014. Revised premium invoices (2014 and 2015), based on an estimated gross salary of CHF 5,600 per month, were also issued.
By judgment of 13 February 2019 (A/409/2018 ATAS/107/2019), the cantonal court allowed the respondent's appeal and annulled the decision on objection of 28 December 2017. The CNA lodged a public law appeal with the Federal Supreme Court, seeking annulment of the judgment insofar as it recognises the respondent's self-employed status, and confirmation of the decision on objection. The Sàrl requests dismissal of the appeal; the lower authority and the Federal Office of Public Health waived their right to respond.
Considerations
The appeal, directed against a final decision rendered in public law matters by a cantonal authority of last instance, is admissible (arts. 90, 82 ff., 86 para. 1 let. d, 100 and 42 FSCA). As the dispute does not concern the granting or refusal of cash benefits, the exception of art. 105 para. 3 FSCA does not apply; the Federal Supreme Court therefore relies on the facts established by the cantonal court, unless they are manifestly incorrect or a violation of law has occurred (art. 105 paras. 1 and 2 FSCA).
On the merits, the employee within the meaning of art. 1a AIA is the person who carries on a dependent gainful activity within the meaning of the OASIA legislation (art. 1 AIO). The classification depends on the economic circumstances and not on the legal nature of the contractual relationship. A person is an employee if he depends on an employer as regards the organisation of work and from an economic point of view, and does not bear the entrepreneurial risk; where characteristics are mixed, it must be determined which elements predominate. A managing director employed by his company remains formally an employee, even if he holds a sole or majority shareholding, but his decisive influence on company policy must be examined, having regard in particular to the circle of shareholders, the holding of share capital, the composition of the board of directors, the level of activity and the function within the company.
The cantonal court held that the respondent operated a commercial organisation in the economic sense, individually and then through the Sàrl; that he leased premises, had engaged and declared personnel, acted in his own name and for his own account vis-à-vis clients according to the commercial register entry, bore alone the losses and debts of the Sàrl (art. 794 CO), and independently defined the commercial policy. He therefore did not depend on any employer, either economically or in the organisation of his work, and bore the…