French Supreme Court Jurisprudence

Posted on 4th January, 2021

Estimated reading time 4 minutes

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.

For further information or if you have any queries relating to the content of this communication, please contact us.

CELIA Alliance
CELIA Alliance members are identified here. Members of the CELIA Alliance are each independent law firms and do not practice law jointly with any other member of the CELIA Alliance. "CELIA Alliance" and "CELIA" are not trading names. For more information about the CELIA Alliance click here.

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 newsletter. 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 communication (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.

If you would like to copy or otherwise reproduce this article then you may do so provided that: (1) any such copy or reproduction is for your own personal use or if it is made available to any third party it is done so on a free of charge basis; and (2) the article is reproduced in full together with the contact details, disclaimer and any logos as they appear on each article.