French bill goes beyond EU's posted workers directive
The French National Assembly has adopted a new bill that goes beyond the scope of a new EU directive on posted workers, Florence Dupont-Fargeaud and Camilla Spira write.
Florence Dupont-Fargeaud and Camilla Spira are lawyers at De Pardieu Brocas Maffei, one of France's leading business law firms.
Faced with social dumping and fraud, France has increased its control over posting companies over the years. France has strengthened its rules relating to prohibited loan of personnel (posting of workers by companies acting as temporary employment agencies, without being declared as such) and clandestine work (without declaring posted workers).
French courts already prepared for a tougher stance on abuses
This bill reflects the will of French politicians, labour administration and law enforcement to stamp out undeclared work and abuses regarding posted workers.
The courts have also cracked down on the use of the posting status. On March 11, 2014, the Cour de Cassation (French Supreme Court) found the airline companies Vueling and Easyjet, guilty of not declaring their employees to the French social protection bodies. The airline companies argued that they did not declare their employees to the French social protection bodies as their employees were posted workers.
In both cases, the Court considered that the companies could not claim for the application of the provisions governing the posting of workers since their activities were entirely oriented towards the national territory, and carried out on a regular, stable and continuous basis or through infrastructures located on the national territory.
Is France going too far?
In this context, the French bill is going beyond the scope of the new directive.
The bill provides for declarative obligations incumbent upon the foreign posting company. Administrative agents in charge of checking the absence of clandestine work are given more powers and can claim documents in the French bill.
In addition, the new provisions include the right for trade union organisations to lodge claims for clandestine work in order to facilitate the fight against this practice.
More importantly, the bill imposes an injunction obligation for the host country company in the event the posting company does not comply with the French mandatory rules.
Moreover, the bill proposes to register any company sentenced to a fine of at least €45,000 for clandestine work on a “black list” published during every year on the internet.
Finally, the French bill extends the joint and several liability to all subcontracting chains to all sectors of activity (except for the agricultural sector, and not limited to construction sector, as is the case in the new directive).
The question remains open, however, as to whether the new Directive and the French bill will help to reduce the abuses in the application of the 1996 Directive, without preventing freedom of activity within the European Union.