Pursuant to article L. 1262-1 of the French Labour Law Code, an employer established outside France may temporarily post workers on the French territory, provided that there is an employment contract between said employer and the employees, and provided further that the employment relationship between the employer and the employees continues during the period of the posting.
The employees who are posted to France by a foreign company are entitled to the same minimum rights as if they were employees of a company established in France, specifically as regards minimum compensation, professional equality, work time and work conditions.
French law provisions applicable to posting of employees to France have been completed by law n°2015-990 of 6 August 2015 in favor of growth, activity and equal opportunity and by Decree n°2015-364 of 30 March 2015 on fight against fraud in the posting of employees and illegal work. The latter strengthen the obligations of foreign employers who post workers to France and provide for criminal sanctions (fine up to €500 000) for non-compliance with their obligations regarding the posting of workers in France.
1. Right, for foreign employers, to post workers to France
Pursuant to article L. 1262-1, 2° of the French Labour Law Code, a foreign employer may post workers to France:
1° in the framework of the provision of services or subcontracting based on a contract between the foreign employer and the recipient of such services who is established in France
2 ° between companies within the same group of companies (intra-group posting of workers)
3 ° for the employer itself
Article L. 1262-2 of the French Labour Law Code provides that a temping company established outside France may also temporarily post employees to a company established in France.
According to article L. 1262-3 French Labour Law Code, a foreign employer may not rely on French law provisions applicable on posting of workers to France if its activities, in the State in which it is established, consist only of internal or administrative management, or when such employer carries in France an activity in a usual, stable and continuous way. Furthermore, an employer may not rely on the provisions applicable on posting of workers in France if its activity involves research and prospecting of customers or hiring of employees on the French territory.
2. Obligations of employers established outside France who post employees in France
Pursuant to French law, employers established outside France who intend to post employees in France must file a prior declaration with the competent labour law administration (“DIRECCTE”), and appoint a representative of the employer on the French territory for the period of the posting.
2.1 Obligation to designate a representative of the employer on the French territory
Pursuant to article L. 1262-2-1 II) of the French Labour Law Code, employers established outside France who post personnel to France must appoint a representative of the employer on the French territory, who will be responsible for ensuring the liaison between the employer and the agents of the labour law inspection administration and other competent authorities (including police and customs) for the period of the posting.
The decision of the employer appointing the representative must be made in writing. Such decision must indicate:
- The name, surname, date and place of birth of the representative
- His/her email and postal address in France
- His/her telephone number
- The acceptance of the representative to serve as such for the period during which the posting will take place
- The place where the documents which must be presented in the event of control of the labour law administration will be kept.
The decision must be translated in French. The decision must also be attached to the Unique Registry of Personnel (“Registre Unique du Personnel”).
2.2 Obligation to file a preliminary declaration of posting of employees with the labour law authorities
Pursuant to article L. 1262-2-1 of the French Labour Law Code, employers who post personnel to France must, prior to such posting, file a declaration with the labour law inspection administration (“DIRECCTE”) which has jurisdiction over the place where the services will be carried out by the posted personnel.
The declaration of posting of personnel must contain, inter alia, the following information:
- Regarding the employer:
– corporate name, postal address, email, telephone number, indication of the employer’s legal corporate form and registration number (or other equivalent information as per the law in the country where the employer is established)
– a description of the main activity of the employer
– the name, surname, place and date of birth of the employer’s corporate directors
– a description of the relationship between the employer and the company in France to which the employees will be posted
– an indication of the authorities who receive the payment of the employer’s social security contributions
– the address of the place where the services will be provided by the posted employees
– the name, surname, place and date of birth of the representative of the employer on the French territory, including his/her email and postal address in France;
- The date on which the provision of the services will begin and the contemplated date on which such provision would end
- The nature of the services which will be carried out during the posting of the employees, as well as the nature of any hazardous materials or working processes
- The SIRET number of the French company to which the employees will be posted
- Regarding each of the seconded employees:
– name, surname, date and place of birth, address of the employee’s habitual place of residence, nationality of the employee
– date of signature of the employment contract with the employee
– the professional qualifications of the employee
– the employment position which will be assumed by the employee during his/her posting to France
– the amount of the employee’s gross monthly remuneration
– the date of beginning and end of the posting of the employee
- The hours of beginning and end of work, as well as the duration of work time and the duration of the time allowed for work breaks of the seconded employees, in compliance with the provisions of French labour law and the applicable collective bargaining agreement
- The address of accommodation of the employees
- The modalities pursuant to which the employer takes in charge travel, meal and accommodation costs.
The above posting declaration must be filed with the competent labour inspection authorities before the beginning of the provision of the services.
To this effect, one of the following three forms (as applicable) must be completed and attached to a dossier, which must be filed with the competent labour law inspection administration:
- Cerfa form n°13816*02 (model 1) for posting of employees in the framework of a contract for the provision of services to a third party established in France, or for the account of the employer itself
- Cerfa form n°13816*02 (model 2) for intra-group posting of workers
- Cerfa form n°13816*02 (model 3) for posting of workers by temping agencies
The declaration must be translated in French. The declaration must also be attached to the Unique Registry of Personnel (“Registre Unique du Personnel”).
3. Obligation to provide certain documents and information in the event of control by the competent inspection authorities
Pursuant to article L. 1263-7 of the French Labour Law Code, foreign employers who temporarily post personnel on the French territory, or the representative that they are obliged to appoint, must present to the labour law inspection agents, on the place where the services are provided, documents translated in French and enabling the labour law inspectors to verify that such employers have complied with their obligations regarding posting of workers.
Pursuant to article R. 1263-1 of the French Labour Law Code, such documents include:
- work permits enabling the employees who are not EU nationals to work in France
- documents ascertaining that the employees have undergone a medical exam as required by French labour law. Pursuant to article R. 1262-13 of the French Labour Law Code, are considered as equivalent to such medical exam medical exams which have taken place in a EU member country, Switzerland or a country member of the European Economic Area
- any document which ascertains that the employer complies with the applicable minimum remuneration as set forth by French law
- any document which ascertains that the salary of the employees is effectively paid
- a transcript of the hours indicating the beginning, the end and the duration of the daily working time of each employee
- a copy of the decision of the employer appointing the representative of the employer on the French territory
- a document ascertaining that the employer has complied with its social security contribution obligations
- a copy of the employment contract or any equivalent document ascertaining namely that the employee was hired
- any document ascertaining the law which applies to the relationship between the employer and its cocontractor
- any document which ascertains the number of contracts performed and the amount of turnover made by the employer in its own country and in France.
The above-mentioned documents must be translated in French, it being specified that all amounts which are in foreign currency must be converted in euro.
Certain information, enabling the labour law inspectors to verify that the foreign employer has a real and substantial activity in the country in which it is established (including amount of turnover made in such country), may also be required.
4. Obligation to comply with the provisions of French employment law
Pursuant to article L. 1262-4 of the French Labour Law Code, employers who temporarily post employees to France must comply with the legal and collective bargaining provisions applicable to personnel employed by companies established in France and who carry business in the same branch of activity as the foreign employer, namely as regards personal and collective rights of the employees in the framework of their employment relationship, discrimination and gender equality, maternity and parental rights, strike rights, duration of work and work breaks, minimum wage, including wage surplus for extra hours, safety and security, etc.
5. Sanctions incurred for non-compliance with the obligations applicable to posting of workers in France
Pursuant to article L. 1264-3 of the French Labour Law Code, in the event that an employer who posts personnel to France does not comply with its obligations relating to posting of workers, a fine may be imposed by the competent authorities in an amount of €2 000 per posted employee, the total amount of such fine being capped at €500 000.
