Employers posting staff to France on a temporary basis from another EU country should take note of the Posted Workers Enforcement Directive (the “Enforcement Directive”) which creates particularly onerous new obligations for employers. This is an EU-wide measure, but implementation varies across the EU; please see our Feature on Cross-border postings and the Posted Workers Enforcement Directive for a pan-EU perspective on the Enforcement Directive.
In France, new rules under the Enforcement Directive create numerous new documentation requirements on both the home employer posting into France (the “Home Employer”) and the user employer in France (“Host Employer”). To make matters harder, most of the documents required must be translated into French. The new rules could prove not only an administrative headache, but also costly, with fines and even criminal sanctions if the employer gets them wrong.
Here’s a summary of five things to know when posting workers into France:
1. For the Home Employer: new reporting obligations under the Enforcement Directive
Any foreign employer posting an employee to France has to file a declaration of posting with the French labour authorities before the employee starts working in France. The declaration of posting must be filed online and should be accompanied by various supporting documents.
2. Home Employer: obligation to appoint legal representative under the Enforcement Directive
The Home Employer must appoint a representative in France, responsible for liaising with control officers in charge of illegal work matters (labour inspectors, police officers, customs and tax authorities).
3. Home Employer: record keeping obligations under the Enforcement Directive
The Home Employer must keep specific documents in France and provide these documents upon request of the French labour inspector. The documents must generally be kept in the employee’s workplace and are subject to various formal requirements, for example financial details must be converted into Euro equivalents if stated in other currencies. Postings of longer than a month require more detailed records to be kept.
For breach of any of 1-3 above, fines for non-compliance start at €2000 per posted employee and are capped at €500,000. The Home Employer can also face restrictions being placed on their ability to operate in France if they breach the record-keeping obligations.
4. Home Employer: restrictions on lending staff – and criminal sanctions
Postings into France can easily breach the French rules on lending of employees – with potentially serious consequences. When an employee is posted to work in France for another company of the group (the “Host Employer”) while remaining employed by the Home Employer, this is only permitted provided it is a not-for-profit transaction (meaning that the cost of the employee has to be recharged to the user company, but without any margin) for both the Home and Host Employers, and this must be appropriately documented.
Breach of these provisions is subject to criminal penalties of up to a € 30,000 fine and/or a two-year imprisonment sanction for the legal representative of both the home employer and the host company and a €150,000 fine for the legal entity.
5. For the Host Employer: new reporting obligations under the Enforcement Directive
The Host Employer is also potentially in trouble if it fails to comply with its own obligations. If it does not receive a copy of the posting declaration within 48 hours from the date the employee starts work in France, it must inform the French Labour Authority, providing specified information.
It must also comply with various record-keeping obligations, such as keeping a copy of the posting declaration (and any relevant work permit) appended to its staff register. Any breach of these obligations triggers a € 3,750 penalty.
What does this mean for employers?
Even short term cross-border postings into France can trigger some or all of these obligations. It is therefore essential that international employers track international assignments or postings into France, as an inadvertent breach of the rules could carry significant sanctions for both Home and Host Employers.
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