Pursuant to Article L 1261-3 French Labour Code, as amended by the Law 2018-771 of 5 September 2018, a posted worker:
- Is employed by an employer lawfully established and carries out activities outside of the French territory
- Habitually carries out activities, on behalf of that employer, outside of the French territory
- On behalf of that employer, carries out for a limited period, work in the territory of France
The amendment highlighted, brought by the Professional Future Act, is interpreted by different authors, as meant to exclude from the scope of the definition, employees who in fact already carry out their habitual activity in the French territory, or even as an amendment that has no legal value.
To assess the reach of that amendment, the interpretation always given by the French labour authority(the DIRECCTE) to the concept of posting, must be highlighted : employees posted, must have been employed ( habitually working for) the undertaking making the posting, in the home country, before the initiation of the posting, and/or will be employed (habitually working for) the undertaking making the posting, in the home country, upon completion of the posting period.
The amendment is meant to enforce the legal arsenal in view of clearly excluding from the scope of the definition, employees which are hired in view of being posted, unless they will resume working for the same employer , in the home country, upon completion of the posting period. A bunch of seasonal work situations are excluded from the scope of the definition (such as but not limited to ski and mountain bike instructors).
Without getting into a controversy as to whether about combating social dumping, or about protectionism, the following points of law must be underlined:
1 Pursuant to Article 2 Directive 96/71/EC, only the definition of worker “is that which applies in the law of the Member State to whose territory the worker is posted”. The definition of posted worker, is laid down by the same article: “a worker who, for a limited period, carries out his work in the territory of a Member State other than the State in which he normally works”, and was interpreted by the ECJ case law. The definition does not contain any reference to the law of the host Member State.
2 Pursuant to Article 4.3 ( c) and (d) Directive 2014/67/EU, in order to assess whether a posted workers temporarily carries out his or her activity in the host Member State, the questions are whether “the posting takes place to a Member State other than the one in or from which the posted worker habitually carries out his or her work according to Regulation (EC) No 593/2008 (Rome I) and/or the Rome Convention” and whether “the posted worker returns to or is expected to resume working in the Member State from which he or she is posted after completion of the work or the provision of services for which he or she was posted”.
In regard to the application of Regulation 593/2008, provided that the law applicable to the individual employment contract has not been chosen by the parties, undoubtedly, such a contract will be governed by the French law (country from which the employee habitually carries out his work in performance of the contract). However , provided that the parties have chosen the law of the home Member State, it cannot be alleged that such a choice will have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement, under the French law (Article 3.1 Directive 96/71/EC produces its effect).
In regard to the second criterion, the question is whether the posted worker is expected to resume working in the Member State from which he or she is posted, and not necessary resume working in performance of the same employment contract.
More ever, pursuant to Article 4.3 (e) Directive 2014/67/EU, the nature of activity must be as well considered.
Lastly, pursuant to Article 4.4 the said directive, the failure to satisfy one or more of the criteria laid down by Article 4, shall not automatically preclude a situation from being characterised as one of posting.
3 The definition laid down by Article 1261-3 French Labour Code, gives rise to ambiguous situations in what concerns the interoperability between the social security coordination regulations, and the labour law. Where on the one hand, such situations fail under the scope of Article 12 Regulation 883/2004 (or in certain cases Article 13 the said regulation), on the other hand, concealed employment under the French labour law is established (see to that extent the request for a preliminary ruling from the French Cour de Cassation, in Bouygues travaux publics C-17/19).
Despite the national labour law, French authorities and courts, cannot disregard the EU law.
Where such posting situations occur, it is important : a) to submit the employment contract to the home country’s law b) to have issued the portable document A1, before the commencement of the posting period (in France , the portable document A1, represents the only material evidence of a posting, at least from a social security point of view).