France – Posting of workers – Is long-term posting only a moratorium on the establishment?

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Some notes in the margin of the article ” New EU rules on posted work enter into force», Published by Le Monde on July 30.First, the article contains a “nuance” error: “A worker posted by a foreign company will now receive the same remuneration as an employee employed by a locally established company performing the same tasks».

A worker has posted will not receive the same remuneration as an employee employed by a locally established company “performing the same tasks”. The principle of “equal pay for equal work” must do not be interpreted as implying identical pay for equal work.

The remuneration must be determined according to the host Member State ‘national law, regulation or administrative provision, or by collective agreements or arbitral awards which, in that Member State, have been declared universally applicable. “ (or apply excessively, in the absence or in addition to a system of declaration of universal application of collective agreements or arbitral awards).

However, it is laboriously read on a simple calculation taking into account both the remuneration of the country of origin and the legislation of the host country and the relevant collective agreement.

It does not make sense to determine the remuneration to be paid to a posted worker, on the basis of the amount paid to an employee hired by the host company or by any other locally established company.

On another note, the Minister of Lobour, Elisabeth Borne, is quoted as having declared that the government wants to go further because ” over the last ten years, the use of posted workers in France has more than doubled“. The Minister stressed that “the derogatory and temporary nature of this measure”(Ie the posting of workers), were not taken into account.

The directive is a given, its transposition, a step towards going further. The concept of “long-term posting” provides only a partial solution to “temporary character“Problem.

The temporary presence (or simply operation) of the sending company on French territory is discussed, and not the presence of an individual posted worker.

The question is when the activity being carried out will no longer fall within the scope of the provisions of the Treaty dealing with services and, consequently, will fail within the scope of the provisions relating to the right of establishment (see context C-55/94 Gebhard, November 30, 1995, ECLI: EU: C: 1995: 411).

The European Court of Justice has provided guidance on the “borderline” between the freedom to provide services and establishment (however, the issue is complex).

Article L1262-3 of the Labor Code introduces the notion of “activity carried out on the national territory, on a regular, stable and continuous basis“. In such situations, the employer is subject to the provisions of the labor code applicable to companies established in the national territory.

In application of article L8221-1 read in conjunction with article L8221-3, regular, stable and continuous activity triggers the termination of employment concealed by concealment of activity.

Under article L8224-1, such a violation can lead to three years’ imprisonment and a fine of 45,000 euros.

The ECJ ruled that: “Nothing in the Treaty makes it possible to determine, in the abstract, the duration or the frequency beyond which the provision of a service or of a certain type of service in another Member State can no longer be considered as a service. of services in the meaning of the treaty”(C-215/01, Schnitzer, December 11, 2003, ECLI: EU: C: 2003: 662).

As far as France is concerned, it follows from current case law that the means of determining the border between the freedom to provide services and establishment could outweigh expectations.

It is difficult to determine ex ante the criteria relating to when a company will be deemed to exercise a regular, stable and continuous activity in France. A case-by-case assessment is required. However, it is easier to prevent, rather than overturn such a presumption.

With simple words, it is better to seek advice before posting workers, rather than after receiving a letter from the French Ministry of Labor.

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