BSA, BSPCE, AGA in France 2026: Legal and Tax Guide to Equity Compensation

BSA, BSPCE, AGA in France 2026: Complete Legal and Tax Guide to Equity Compensation

Granting instruments giving access to capital has become a central lever for talent retention in French startups and a structuring tool of LBO management packages. Three instruments dominate: BSPCE (founder warrants), BSA (warrants) and AGA (free shares). Each follows a specific legal and tax regime.

1. BSPCE: legal and tax regime in 2026

1.1. Legal framework

Article 163 bis G of the French General Tax Code. Purpose: allow young high-potential companies to retain employees and executives by offering them shares at a strike price set at issuance.

1.2. Issuing company eligibility

• Form: SA, SAS, SCA, French or EU/EEA registered.
• Age: less than 15 years.
• Listing: unlisted or market cap < €150M.
• Ownership: at least 25% held by individuals.
• Subject to French corporate income tax.

1.3. Eligible beneficiaries

Since PACTE Law (2019) and Finance Law 2025: employees, corporate officers, board members, supervisory board members, consultants of subsidiaries (under conditions).

1.4. Tax regime in 2026

Beneficiary's situation	Capital gain taxation
Presence ≥ 3 years	PFU 12.8% + 17.2% = 30%
Presence < 3 years	30% IT + 17.2% social contributions

No employer social charges.

2. BSA: legal and tax regime

2.1. Legal framework

Articles L. 228-91 et seq. of the Commercial Code. Unlike BSPCE, can be issued by any joint-stock company without age conditions, granted to any beneficiary.

2.2. Use cases

• BSA Air: seed instrument convertible at next round.
• BSA Ratchet: investor anti-dilution protection.
• Management BSA: equity incentive outside BSPCE scope.
• Investor BSA: sweetener attached to debt.

2.3. Tax regime

• Acquisition price must reflect fair market value, otherwise risk of requalification as salary.
• Capital gain on sale: PFU 30%.

2.4. Black-Scholes valuation

Fair value assessed by Black-Scholes method (strike, volatility, duration, risk-free rate, dividends). Independent expert valuation strongly recommended.

3. AGA: free share allocation

3.1. Legal framework

Articles L. 225-197-1 to L. 225-197-6 of the Commercial Code. Limit: 10% of share capital (15% for EU SMEs).

3.2. Periods

• Acquisition: minimum 1 year.
• Holding: optional since Macron Law (2015).
• Total minimum: 2 years between allocation and disposal.

3.3. Tax regime in 2026

Component	Taxation
Acquisition gain	Salaries, 50% abatement up to €300K then progressive scale + SC
Capital gain on sale	PFU 30%
Employer contribution	20% (0% SME under conditions)

4. Synthetic comparative table

Criterion	BSPCE	BSA	AGA
Issuing company	Young (<15 years)	Any SA/SAS	Any SA/SAS
Beneficiaries	Employees/officers	Anyone	Employees/officers
Cost for beneficiary	Strike price	Subscription price	Free
Gain taxation	PFU 30% (>3 years)	PFU 30%	Salaries + PFU 30%
Employer contribution	0%	0%	20% (0% SME)
Standard vesting	4 years, 1-year cliff	Free	1 year minimum

5. Structuring and documentation

• Plan rules approved by EGM (cliff, vesting, leaver).
• Individual grant letters.
• Shareholders' agreement amendments (drag along, ROFR on exercised shares).
• Reporting compliance: DSN, individual tax declarations, RCS register.

6. Recent case law and doctrine

• Cass. soc., 12 June 2024: loss of unvested BSPCE on dismissal for gross misconduct is not a prohibited pecuniary sanction.
• Conseil d'État, 13 July 2021, no. 437498 (Wendel): possible requalification of equity instrument gains as salaries if granted by reason of functions exercised without real risk — central case law for LBO management packages.
• BOI-RSA-ES-20-30 (updated 2024): tax doctrine specifying BSA fair value conditions.

7. Combination strategy

Optimal approach: BSPCE for early employees (max tax advantage, no employer cost), BSA for advisors and external consultants (flexibility, outside BSPCE scope), AGA for top management at advanced stage (strong signal, no strike price).

8. Internal linking and expertise

Deepen: startup fundraising, VC shareholders' agreement, LBO management package, business valuation. Expertise: BSA/BSPCE/AGA lawyer, fundraising lawyer, LBO management package lawyer.

Conclusion

The choice between BSA, BSPCE and AGA depends on company stage, beneficiary profile and tax optimisation objectives. A poorly calibrated structure exposes to tax requalification risk (Wendel), social litigation (leaver clauses) or exit blockage. Specialist counsel is essential to durably secure the scheme.