New provision of law of sending employees into the France
Various laws (Loi Macron in August 2015 and Loi Travail in August 2016) and their related legal regulations in recent months substantially restricted the regulations in force in the area of sending employees to France. Among other things, they should curb illegal labour and dumping wages.
The term “sending” is however time broad and in principle includes all trips undertaken by an employee of a foreign company upon instructions from their employer. For all these trips regardless of their duration (a few hours or several months) and the position of the employee (unskilled worker or engineer) there exists a notification duty that must be fulfilled before their realisation. But this notification duty does not apply to the employees of foreign companies permanently employed in France who are registered as foreign employers and pay their social insurance dues for their employees in France and operate according to French law.
Special regulations apply to employers in the building construction and transport sectors. But we shall not discuss them here.
Scope of application of French regulations on sending employees
Sending means stay in France for the purpose of providing services, labour mobility within a company’s concern, temporary assignment of employees by an agency as well as performance of the intra-company working tasks (for example, participation in a trade fair, participation in meetings with customers, training). The laws do not state any specific examples, they do not even stipulate any exemptions.
The regulations that govern sending employees only applies to employees who have concluded employment agreements with a foreign company. They thus do not apply to the executives or members of a board of directors.
Obligations of a foreign company
Appointment of a representative in France
It is first necessary to appoint a representative in France. This representative is the contact person for the French authorities (labour inspectorate, police, revenue authority, …). For this person all documents submitted to the authorities must be kept and the representative shall submit them to the competent authority, if necessary. It is unconditionally necessary that the representative speaks French and also has a mailing address and email address in France. His/her name and contact data shall be stated on the notification of sending. The notification cannot be submitted without fulfilling these requirements.
The appointment of the representative must be executed in writing.
Notification duty prior to actual sending
Sending an employee must be notified unconditionally prior to its beginning via the electronic internet portal SIPSI. Notification in paper format on earlier forms or by email are no longer permissible.
It is necessary to report various data relating to the sending company, also the company for which the sent employee shall work and also the employees.
From 1 January 2018 a fee of € 40 shall be paid for each sent employee.
Inspection by the Labour Inspectorate
For the duration of staying abroad, employees shall be subject to various cogent provisions of French labour law (i.e. for example, minimum wage, remuneration for overtime work, regulations on working time and leave, right to strike, equal treatment of women and men, OSH regulations, accommodation conditions), so the competent controlling authorities may request many documents on the basis of which they may verify compliance with these regulations. This includes, for instance, the settlement of wage, document of actual wage payment, employment agreement, time sheet, medical fitness certificate, confirmation of applicable legal regulations on social security in the source country (Form A1). All documents must be submitted in French. It is usually necessary to submit an extract of the company from the commercial register and also data of its overall turnover in the country of origin and share of profits in France.
High fines for non-compliance with regulations for sending
Fines imposed are very high: € 2,000 for each breach, double this amount in the case of repeated breach in the same year, up to a maximum € 500,000. A breach shall be, for example, failure to appoint a representative, sending notification failure or delay, failure to extend the sending notification, failure to submit the required documents. The stated fine for each individual employee.
Beside the fines for non-compliance with formal regulations, it is also possible to impose additional fines if the labour inspectorate ascertains that some of the cogent provisions of French labour law were violated, for example, in connection with minimum wage or working time.
Joint Liability of the Ordering Party in France
The ordering party in France is obligated to verify that the foreign company, which is providing performance for them in France has appointed a representative, fulfilled its notification obligation and is capable of submitting the confirmation of applicable legal regulations on social security in the source country (Form A1) for each employee. Before sending the employee, the ordering party is obliged to demand the submission of the concerned documents. If they are not submitted, notification must alternatively be submitted within 48 hours after sending the employee to the authority (in paper format up to 31 December 2017, via the web portal SIPSI from 1 January 2018). If they fail to do so, the authority may in an extreme case order the interruption of performance for a maximum period of one month. Moreover, the same fines that apply to a foreign company shall also apply here (see above).
A further fine may be imposed on the customer if they are not capable of submitting the confirmation of applicable legal regulations on social security in the source country (Form A1) for the employees sent to them. The fine is € 3,269 (amount for 2017) for each non-documented confirmation. This fine does not apply to companies, which can prove that they have applied for the issue of confirmation and they can additionally submit confirmation within 2 months after inspection.
The customer in France also guarantees the payment of the above-stated fee of € 40 if the expatriating company has not notified the expatriation and has thus not paid this fee.This joint guarantee also applies to subcontractors working for the service provider at the ordering party’s premises.
Stricter rules governing sending of staff can have far-reaching consequences and the experience of recent months shows that the labour inspectorate very strictly checks compliance with these rules. The electronic online notification makes these checks easier and the administrative fee in the amount of € 40 should also be used to fund these checks, so it can be assumed that their number in subsequent months shall be significantly higher. The financial consequences for a foreign company are significant. Moreover, there is a risk of loss of confidence on the part of the French customer who by joint guarantee and because of a breach of legal regulations by their service provider must often pay the fine in the same amount.
Given the topicality and importance of this topic, every foreign company that sends employees to France should consult the issue with a local professional consultant. For several months already, our office is offering a new service package – we can help you prepare the notification about sending an employee, provide you with advice on issues relating to the functions of the representative and we can also help the foreign company in the case of inspection by the labour inspectorate. Our objective is to make sending employees to France far much easier and safely guide you through all its potential bottlenecks.
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