I. LEGAL FRAMEWORK GOVERNING TRANSNATIONAL POSTING OF EMPLOYEES IN FRANCE
1. Posting of employees falls within the scope of the provisions of article L. 1262-1, 1° of the French labor Code which authorizes the provision of transnational services:
“An employer established outside France is entitled to temporarily post employees on the national territory provided that there is an employment contract between that employer and the employee concerned and that their employment relationship is maintained during the posting period.
Posting is carried out:
1° Either on behalf of the employer and under its direction, pursuant to an employment contract entered into between the latter and the person to whom the services are provided established or operating in France;
2° Or between establishments of a same company or between companies of a same group;
3° Or on behalf of the employer without any contract between the latter and a recipient.”
2. Pursuant to article L. 1262-3 of the French labor Code in its drafting resulting from the law entitled “loi Macron” dated August 6, 2015 (art. 280):
“An employer cannot rely on the provisions applicable to the posting of employees when it carries out, in the State in which it is established, activities only concerning internal or administrative management or when its activity is carried out on the national territory on a regular, stable and continuous basis. It is, inter alia, not entitled to rely on these provisions when its activity includes customers’ research and prospection or the recruitment of employees on that territory”.
In other words, in order for a foreign company to be entitled to validly post its employees in France, it must be in a position to prove the regular, stable and continuous nature of its operational activity in its home country.
3. Thus, is prohibited the artificial creation of an establishment in a foreign country purely in order to post employees in France.
4. It should be noted that the rules governing the transnational posting of employees apply regardless of the duration of posting.
5. However, should a foreign company finally develop a regular and stable activity in France, it could not consequently rely any longer on the specific provisions applicable to posting and should declare its employees and pay its social security contributions in France. It would further be bound to comply with French labor law like any other company established in France.
6. Since the posting is a preliminary step to an establishment in France and shall not exceed two years within the European Union, that company shall comply with these regulation in a short or medium term.
II. FORMALITIES PRIOR TO POSTING
7. Pursuant to the law of July 10, 2014, foreign companies must carry formalities prior to the posting of employees on the French territory (art. L. 1262-2-1 labor Code):
- Obligation to send to the Labor Inspectorate a prior declaration to posting (déclaration préalable de détachement) which must mention1:
- the name or corporate name as well as the postal and electronic addresses, the phone numbers of the company or the establishment which generally employs the employees, the legal form of the company, the references of its registration with a professional register or any other equivalent references, the main activity of the company, the name and forenames, date and place of birth of the manager or managers, the links of the employer with the host company or establishment of the employee or employees, the name of the bodies to which the employer pays the social security contributions;
the address of the successive place or places where the provision of services must be carried out, the name, forenames, date and place of birth, the electronic and postal address in France, the phone numbers of the representative of the company in France for the duration of the provision of services, the starting date of the provision of services and its expected end date, the nature of the services provided during the posting and, if applicable, the nature of the equipment or dangerous work processes used;
- the name, forename, date and place of birth, address of habitual residence and nationality of the posted employees, the signature date of his/her employment contracts, his/her professional qualification, the position occupied during posting as well as the amount of the related gross monthly remuneration, the starting date of posting and its expected end date;
- the times at which work starts and finishes and the duration of rest periods of the posted employees;
- as the case may be, the address of the successive collective accommodation place or places of the employees;
- the conditions for the assumption by the employer of the travelling, food and, as the case may be, accommodation costs.
This declaration has to be sent to the Labor Inspection (Unité Territoriale de l’Inspection du travail) depending on the area of jurisdiction of the first place where the provision of services must be carried out2:
(i) by registered mail: a legal form has been made available by the French Labour Authorities. Please find this form, available on https://www.service-public.fr/professionnels-entreprises/vosdroits/F32160;
(ii) or by electronic transmission via the following link: https://mdel.mon.service-public.fr/pro_mademarchev5/sfjsp?interviewID=SIPSI
Please note that the provisions resulting from the law of August 8, 2016 (Loi Travail) reinforce the sanctions in case of non-compliance to the above obligation, allowing the Labor Inspectorate to suspend the performance of the provision of services.
- Obligation to appoint a representative of the company on the national territory responsible for liaising with the control officers (agents de contrôle) (Labor Inspectorate, police, URSSAF…) for the duration of the provision of services.
The appointment of that representative, to be carried out in writing by the employer and translated into French, must3:
- include the name, forenames, date and place of birth, electronic and postal address in France, and as the case may be, the corporate name as well as the phone number of the representative;
- state the acceptance by the person concerned of his/her appointment and the effective date and duration of the appointment which cannot exceed the posting period.
8. Beyond these prior formalities, any foreign employee posted on the French territory under the conditions set forth in aforementioned article L. 1262-1 must benefit from a certain number of French labor law rules relating to the protection of workers and the fight against unfair social competition (social dumping) .