According to European Union law (Case A-Rosa Flussschiff GmbH, C-620/15, April 27 2017) the regular issuance of an A1 certificate is protection against the criminal offense of undeclared work.
The issuing of a regular A1 certificate is a presumption that the worker concerned is legally affiliated to the social security system of the Member State whose institution issued the certificate concerned.
By rulings of January and March 2021 (Cass. crim., Jan. 12 2021, n° 18-86757, n°18-86709, Cass. crim. and n° 17-82.553, Cass. crim., March 2 2021, n° 19-80991) the French Supreme Court confirmed that a duly issued A1 certificate can protect the employer against the criminal offense of undeclared work due to any breach in the declarations and payments of social security contributions.
There is thus a presumption of compliance with the declaratory rules which can only be lifted after having asked the authority issuing the certificate about its validity.
But in this jurisprudence, the Supreme Court considers that the issuance of the A1 certificate cannot protect the company against other risks of criminal offense also considered in France as undeclared work. In those cases, even in the presence of an A1 certificate that was not challenged, it was, for example, about:
- Failure to comply with the mandatory pre-hiring declaration;
- Failure to issue the employee’s pay slip;
- Failure to register a company when such registration is mandatory.
Providing an A1 certificate is required but does not fully protect the company against any risk of undeclared work, even if the company has made regular payments of social security contributions in the country of origin. Failure to comply with rules other than the payment of social contributions can lead to a conviction for undeclared work.
A conviction for undeclared work is punishable by a maximum of 3 years imprisonment and a fine of €45 000.
For a Company (legal entity), the maximum fine is raised to €225 000.
If undeclared work concerns illegal workers or vulnerable workers, the sanctions are raised.
In addition to these main penalties, additional penalties can be ruled such as:
- Display and publication of the conviction,
- Exclusion from public contracts for a period of up to 5 years.
- Temporary or permanent closure of the company or establishment
This article was produced by CELIA member firm Fidere Avocats.
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