Delegating third-country nationals (non-EU) to work in the EU

Legal basis: Delegating workers within the framework of service provision in the European Union is defined in the Directive 96/71 EC of the European Parliament and the Council of 16th December 1996 with the subsequent Directive 2014/67/EU of the European Parliament and the Council of 15th May 2014 on the enforcement of the Directive 96/71/EC and the Directive 2018/957 of 28th June 2018 amending the Directive 96/71 EC.

Continue reading Delegating third-country nationals (non-EU) to work in the EU

Delegation of foreigners to France

Delegation of foreigners to France. The French government is trying to introduce more stringent regulation for employers delegating employees. In addition to the mandatory minimum wage, which is strictly controlled. There are additional manifestations of increased administrative and fiscal responsibilities in enterprises delegating employees.

 

Delegation of foreigners to France is not an easy puzzle.

According to the French Labor Code (art. L.1261-1 do L.1263-2 i R.1261-1 do R. 1264-3), the delegation of employees to France is a complex situation. An employer with headquarters in Poland instructs his employees certain tasks what will be performed in France. And only after finishing of their task employees will return to their company and country.

International business trips for employees are:

  • Activities with a commercial, handicraft, industrial or agricultural nature are carried out on the basis of a contract between the enterprise that provides services and is the recipient of the services for an agreed price between them. Like subcontracting, which is also a service, it is often phenomenon in the construction sector.
  •  Activities within the group of enterprises. This means the delegation of employees to France among companies that belong to the same group of enterprises. Also, in case of several enterprises in the same company. The purpose of such action is to perform certain work or, for example, training.
  •  The enterprise, which operates as a “recruitment agency of temporary staff” in Poland. It delegates employees to work in an enterprise that hires them to do work in France.
  • Work at own expense. For example, company is located outside France, owns real estate or forest in France. And company wants that some work must be performed on its property territory.

 

When you are going to delegation employees to France from what should you start?

What goes first before starting work in France with our employee, a citizen of a country outside the European Union? The first step is to ensure that this employee has a valid travel document (visa or passport). The second one is that he has been legally hired in Poland. Further action does not make sense without this. In addition, there is an obligation to notify the labor inspectorate in France because of where the service should be provided. This tax was introduced since the entry into force of Decree 2016-1044 of July 29, 2016. It determines the conditions for the submission of these declarations.

 

Delegation of foreigners to France. For how long can we delegate employees? What qualifications should they have?

The duration of the business trip may vary depending on the specific task and last from one day to several months. However, delegation should always be temporary, not permanent.

Required qualifications relate to professions, for example: doctors, taxi drivers, architects, accountants, insurance companies. In the case of these types of employees, you should be aware of specific legal settlements and related documents. So, that’s how employees can perform these professions in France. Keep in mind that the delegation of foreigners to work in France must meet the formal requirements for these professions.

 

French labor inspectorate willingly controls Polish enterprises

Delegation employees to France. What documents may require the French Labor Inspection from the employer?

Supervisors are authorized to require from the employer the documents to be drawn up in French and put the amount in euros (read Art. R. 1263-1 of the Labor Code):

  • work permit for citizens of non-EU countries;
  • from employers with headquarters in the EU, the EEE in Switzerland – a document confirming that the staff has medical research that is used in France. It can be done in the employer’s country of origin;
  • salary newsletters for each delegated employee or an equivalent document (if the delegation is longer or equal to one month). It can also be any other document confirming the payment of at least the minimum wage in France.

 

Overall, delegating companies are required to submit two groups of documents:

  • The first group is consisting of documents that represent the situation of the delegated employees (documents, contracts for work, salaries – individual, proof of payment of wages, A1 forms, regulations, inspection, accounting of working time).
  • The employer must submit documents confirming the fact that he is conducting actual and suppressive activities in Poland.
  • A document confirming the appointment of a company representative in France.
  • Trade agreement with a French counterparty.
  • A document confirming the number of completed contracts. As well as the amount of turnover received by the employer in the territory of the state of his registration and in France.

Keep in mind that all documents mentioned above must you provide to the inspector without undue delay, already translated into French.

You cannot rely on personal data protection arguments such as protection of personal data, commercial secrets. They are ineffective in period of checking by the Labor Inspection. The refusal to submit the necessary documents, in extreme cases, can be interpreted as a criminal offense aimed to make difficult of carrying out the supervisor’s tasks of Labor Inspector. Such actions may be punished with a year of imprisonment and a fine of €37,500 (art. L. 8114-1 of the French Labor Code).

 

Delegation of foreigners to France

Delegation of foreigners to France. What is the purpose of the control of the French labor inspectors?

Above all, the purpose of the control by the French labor inspectors is:

  • Search for companies that do not comply with the mandatory notification of delegation;
  • Non-compliance with French labor legislation in the area of working time,
  • Failure to comply with the minimum wage requirement in accordance with French labor law,
  • Monitoring overtime payroll compliance.
  • Demonstration of whether a particular entrepreneur does not conduct a predominant. And convergent activity in the territory of France with export activities. Keep in mind that the French administration does not use a hard percentage turnover threshold in the territory of the host country. The French inspectors are based their opinions on their own indicators. There were cases when the labor inspector called for a “excessive number” of the delegative declarations.
  • The French Labor Inspectorate may also initiate cross-checks with the Polish State Labor Inspectorate at the headquarters of the delegating company in Poland.

Recently, the French Labor Inspectorate regularly expands the problem of control in compliance with the conditions of employment on the implementation of the dominant economic activities in the host country territory.

The goal is to eliminate unfair competition and the use of delegation instead of employment in France. The local courts decisions go in contrary to the rules of jurisprudence of the Court of Justice of the European Union. They have a negative attitude towards enterprises delegating employees. Very often judgments about abuses in delegation are issued. In cases of serious violations of the law on this issue, the inspector sends the inspection reports to the French Prosecutor’s Office. It may initiate a criminal case against such entrepreneur.

 

Delegation of foreigners to France. What are the most common results of inspections conducted by the French Labor Inspectorate?

What if the Labor Inspectorate finds serious violations committed by a Polish employer delegating foreigners to work in France? he considers that the submitted documents contain false information. Or he considers the violation by the employer or his representative of the obligations for filing documents of employees.

You should pay your attention on this information:

  •  daily and weekly rest;
  • maximum daily work time;
  • total or partial lack of payment of the minimum statutory wage or as a result of a collective agreement.

In such cases, the inspector sends an appeal to the employer, with which he calls him to restore the legal status immediately, within a certain period of time. ( art. L. 1263-3 of the French Labor Code).

If the employer within the prescribed period hasn’t paid off debts, the prefect of the region may suspend the execution of the Polish employer of cross-border cooperation of services for some period. But this suspension mustn’t be longer than one month. The decision will be withdrawn at the time of restoration of status in accordance with the law (Art. L1263-4 of the French Labor Code).

 

The French Labor Inspectorate has no obligation to draw up a report of the inspection.

As mentioned earlier, the French labor inspector doesn’t have the obligation to draw up a report of the completed inspection. Therefore, it is possible that after inspection the employer will not receive any decision from the Labor Inspectorate. This, however, may be a good information indicating that you have not found any deficiencies in the cross-border provision of services.

In the event of a violation, the inspector will most likely direct his attention and may send a fine. To determine the amount of the fine, the Labor Inspectorate considers the circumstances. And the scale of the violation of the law. And the behavior of the offender and the scale of his economic activities.

Fines for the most common violations:

  •  failure to provide a mandatory declaration on the delegation foreigners to France, as well as the declaration of an incomplete declaration;
  • the absence of an employer-appointed representative of an employer in France.

These violations are punishable by a fine of €2,000 from each seconded worker.

Sometimes the amount rises to €4,000 from each employee in the event of the recurrence of the same violation within one year from the date of the first fine. The maximum total amount of the fine cannot exceed €500,000.

 

Delegation of foreigners to France. Amendment of the French Labor Code called EL KHOMRI

In August 8, 2016 appeared a new and the most recent amendment to the provisions of the French labor code called EL KHOMRI. It imposes new sanctions on employers for improper delegation of employees. The same sanction suspends the work of the relevant service for a period not exceeding 1 month. This threatens if the Labor Inspectorate fails to receive a delegation declaration within forty-eight hours from the moment the employee is delegated. (Art. L1263-4-1 of the French Labor Code).

If the employer, despite the decision to suspend the possibility of cross-border delegation of employees, will continue to delegate employees? He shall be punished with a fine. The prefect of the region creates a punishment based on a labor inspection report. The fine may be based on a sum of 10,000 euros for one delegated employee (Art. L1263-6 of the French Labor Code).

In case of an accident at work, in a situation where:

  •  the transferred worker got in an accident in France;
  •  he is not subject to the French social security system.

Then the enterprise to which the employee or the employer is assigned is obliged to notify the inspector about the work of the place where the accident had occurred. And the filing of the “accident declaration“.

 

Health care during delegation foreigners to France

A Polish employer is obliged to insure employees delegated from Poland to the Polish Social Security Institution (ZUS). Before delegation, the Polish employer is obliged to submit applications for issuing Form A1 to ZUS. This document confirms that the subordination to the Polish social insurance system ensures the receipt of the European Health Insurance Card. Medical services are reimbursed through the Polish National Health Foundation (NFZ).

 

Remuneration of a seconded employee to France

The main tariffs, that are in force at the time of the delegation, shall be established in accordance with the remuneration rules. This provision is stipulated by French law. Employers that are doing delegation foreigners to work in France must to remunerate each seconded employee by the French rates. It means that:

  • basic salary cannot be lower than SMIC,
  • overtime should be paid, according to the tariffs – by 25% more in the first 8 hours of work. And 50% more in next hours.

 

Employees should receive next things for a placement period (for more than 1 month) in France:

  • monthly salary;
  • salary episode or other equivalent document translated into French and containing the following data:
  1. Gross and net salary in euros,
  2. the number of working hours (statutory and overtime)
  3. in nature,
  4. bonuses
  5. employees receive vacation pay (paid weekends), for idle time at work, caused by weather conditions.

 

What expenses are associated with a staff delegation?

The employer must return to the employee additional expenses incurred in connection with the delegation (travel expenses, accommodation, etc.). For delegated employees are not applied the provisions of French labor legislation concerning the conclusion and termination of employment. This also applies to the presentation of personnel, training and social security. In these matters Polish law are applied.

 

Delegation of foreigners to France. What to do in case of stay of delegated employees for more than 90 days?

In the case when the term of work involving delegated persons for a period longer than three months (90 days), the employee is obliged upon arrival in France to apply to the relevant prefecture with an application for a residence permit (CE – salarie prestataire de service communautaire ). Thus, he applies for employment in France, in accordance with the current legislation on the work of foreigners. It is important in this case, when rules are arising from the employee’s business trip expire.

I can say with complete confidence that the delegation of employees to France is possible and beneficial for Polish enterprises. If employers do all by the law, both Polish and French, they should not be afraid of legal sanctions. Polish entrepreneurs can make full use of their staff in carrying out orders that are useful to them in France.

 

Do you need help?


Recruitment agency WORKSOL is recruiting, legalizing of stay, employment and delegation of third-country nationals to EU member states for years! We make every effort to follow the dynamically progressing changes arising from international directives. We always are glad to help, if you want to make sure that you have knowledge of the current legal status, get information about it.

Ladies and gentlemen, you have read an article that was written by a Polish employer. This article about issues concerning delegation employees to France. In particular, Ukrainians and other foreigners to work in France. Do you want to entrust the design of all the formalities of a professional company engaged in legalizing the stay and work of foreigners? Contact us! We do everything as soon as possible and at an attractive price.

 

Authors of the article “Delegation of foreigners to France”:

Natalia Poprawa – npoprawa@worksol.pl

Michał Solecki – msolecki@worksol.pl

 

Translator of the article “Delegation of foreigners to France”::

Vladimir Slipets

 

Other interesting topics:

Recruitment of labour force from the East for the purposes of IT industry

 

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