Posting of workers to France : a simplification of formalities and a reinforcement of sanctions

10/09/18

Social eAlert

In brief

The “Career Development” Bill, published in the Official Journal on September 6, 2018, provides for the simplification of rules relating to the posting of workers to France under certain circumstances and their reinforcement in others. We summarise below the measures that have been adopted.

Elimination of formalities for workers assigned for commercial prospecting and short-term secondments

Foreign employers are exempt from filing a posting declaration and from designating a representative in France :

  • If they post employees for the purpose of prospecting i.e. the workers will not be assigned to a host entity with which the employer entity has already concluded a commercial agreement or;
  • If they post employees for a short period and for certain specific activities, in the context of intra-group mobility or where there has been an agreement concluded with a host entity in France. The conditions of this exemption remain to be defined by ministerial order. 

Regarding the obligation to present documents in French in case of inspection, employers posting employees for a short period may benefit from arrangements. These arrangements, presumably aimed at simplifying compliance, shall be determined by a decree of the Conseil d’Etat. 

Adaptations regarding frequent assignments 

Employers posting employees to France on a regular basis may request from the competent administrative authority adaptations of the otherwise strict requirements regarding the posting declaration, the designation of a representative and the translation of documents into French. To this end, employers shall have to certify their compliance with imperative labour provisions (“core rules”: minimum salary, working time, etc.). The nature of the adaptations that will be permitted remains to be determined by a decree of the Conseil d’Etat. These adaptations shall be granted for a duration of one year, renewable once.

Reinforcement of sanctions and the powers of the labour inspector

The maximum administrative fines incurred in case of failure to comply with the required formalities or the regulations applicable to posted workers are now 4000 euros (instead of 2000 euros) per posted worker and per violation, or 8000 euros (instead of 4000 euros) in case of repeated offense within two years (instead of one year). In addition, appeals against these fines no longer suspend recovery of the fines. 

Principals registered in France and contracting with a service provider that posts employees to France shall now have to verify, at the time of the conclusion of the service agreement, whether the service provider has paid all administrative fines for which it may be liable. The modalities of this verification have not yet been determined.

In case of non-payment of these fines, French authorities may henceforth order the suspension of the posting.

A new criminal category of « illegal work » has been created that targets foreign companies that posts workers to France but that have solely internal management or administrative activities in the country where they are registered, or that carry out an activity in France that is habitual, stable and continuous. 

The sanction of “discontinuing the activity” of French companies on whose premises such infractions were committed was previously limited to only the construction sector; the law now permits this sanction in all sectors of activity. 

Investigative powers of the labour inspector have been reinforced and the publication of violators has been expanded (“name and shame”).

Transposition of the Directive (EU) 2018/957 of June 28, 2018 concerning the posting of workers 

The French government has announced its plan to transpose this  directive by June 2019 at the latest.

We recommend proceeding with a diagnostic so as to determine to what extent your company or group may benefit from the new arrangements.  We will be issuing an alert once the implementing rules have been issued.   

 

Contacts

William Phillips

Avocat, Associé , Paris / Neuilly-sur-Seine, PwC Société d'Avocats

+33 1 56 57 42 75

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