The fight against fraudulent posting of workers has become a major challenge within the European Union (EU) with the publication of the Directive 2014/67 EU on 15 May 2015.

Background

The 1996 Posted Workers Directive (96/71/EC) entitles posted workers to statutory employment rights in the country they are sent to.  Posted workers are individuals who are employed in one EU Member State but sent by their employer to work temporarily in another Member State before returning home.

The 2014 Enforcement Directive (2014/67/EU) builds on the information exchange requirements in the 1996 Framework Directive to support cross-border enforcement between Member States and also covers monitoring and compliance.

The Posting of Workers Directive applies in three situations as set out in Article 1 (3) of the Framework Directive. In summary:

• When an employer posts a worker to another Member State (on his own account and under his direction) under a contract which the employer has concluded with the host company in the State for whom the services are intended;
• When an employer posts a worker to an establishment owned by the group in the territory of a Member State; and
• When the employer, being a temporary employment or placement agency, hires out a worker to a host company established or operating in another Member State.

Obligations for posting workers in France

This directive was transposed in France in July 2014 with follow up regulations in April 2015.  The Macron Act (enacted in August 2015) increased the obligations applicable to companies posting employees or using employees in France, as well as the level of sanctions in case of breach of these obligations. The French Senate estimated the number of illegally posted workers in France alone at up to 300 000, in a 2013 report.

Foreign companies posting employees in France are subject to various obligations, including:

• The filing of a declaration with the French labour inspection prior to the posting which must be:
• Drafted in French,
• Filed before the employee arrives in France,
• Provide detailed information with respect to the employees, their job duties, salary and working hours, the conditions in which the employer pays for travel and housing expenses and the link between the employer and the host company.
• Submitted electronically, in a format to be determined in an upcoming decree.

In addition, employers should note that:

• A representative for the foreign company based in France should be an appointed, who will be liable for all relations with the French authorities.
• The host company is also liable for ensuring that the foreign employer of posted workers comply with these obligations.

Finally, one has to remember that any company entering into a service agreement for an amount higher than EUR 5 000 must ensure that its sub-contractor complies with the rules against undisclosed work, including with respect to social security coverage.

Increase of maximum applicable fines

In the case of breach of such obligations by the employer or the host company, administrative fines of EUR 2 000 per employee (EUR 4 000 in case of recurrence within one year) would apply, with a cap originally set at EUR 10 000. The Macron Act has increased this cap dramatically to EUR 500 000 – empowering the French authorities with highly valuable means of action.

Further Information

For further information or to discuss any of the issues raised, please contact Stéphanie Le Men-Tenailleau on +33 1 58 22 16 86.

Disclaimer

Content is for general information purposes only. The information provided is not intended to be comprehensive and it does not constitute or contain legal or other advice. If you require assistance in relation to any issue please seek specific advice relevant to your particular circumstances. In particular, no responsibility shall be accepted by the authors or by Abbiss Cadres LLP for any losses occasioned by reliance on any content appearing on or accessible from this article. For further legal information click here.

Circular 230 disclosure

To ensure compliance with requirements imposed by the IRS and other taxing authorities, we inform you that any tax advice contained in this article (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties that may be imposed on any taxpayer or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.