In Bouygues and Others (C-17/19), the French Cour de Cassation seeks to know whether a Portable Document A1 binds the courts of the host Member State, not only as regards the social security subjection, but also as regards labour law.
The ECJ hearing upheld the complex interoperability between the social security coordination regulations and the Directive 96/71/EC transposed into national legislations, when such an interoperability is used as a mean to an end.
The appellants share practically the same position. Quoting Bouygues, making a (clear) distinction between social security coordination and labour law, is merely inoperant. A Portable Document A1 should bind national courts as regards labour law, at least as regards rights indissociably related to social security (compromise with the more flexible Welbound’ position). under the coverage of a PDA1 issued
Responding the questions addressed by the ECJ, the appellants have clarified that under the coverage of A1 certificates, they are not defending immunity to the application of Article 3.1 Directive 96/71/EC, but merely the status of “posted worker”. With simple words, a worker lawfully posted under the social security coordination regulations (holding a PDA1), cannot be at a time unlawfully posted, pursuant to the French labour law.
Elco Construct qualifies the question addressed to the ECJ as merely a “provocation”. In the capacity of the most affected appellant, Elco opened the genuine debate, by upholding two important points:
- the question referred by the French Cour de Cassation to the ECJ, can be rephrased as follows : “whether matters related to social security, can be addressed under labour law” (our note : assessing the Court of Appeal ruling, the remark is of high relevance)
- before the hearing, the ECJ had addressed France, in view of clarifying the concept of “habitually working for their employer”, in the sense of Article L 1261-3 French Labour Code
Elco concludes that the genuine French concern is not the protection of workers, but the subjection to the French social security system (by any means).
The French position has the merit to clarify a declared intention, beyond a confusing national legislation and practice:
- France is not challenging the probatory value of a PDA1, obviously considering the ECJ ruling in Altun and Others (C-359/19), and as well the AG Opinion in Vueling (joined cases C-370/17 and C-37/18)
- a lawful posting (under the French labour law), must be notified by means of a declaration of posting, in the sense of Article 9.1 (a) Directive 2014/67/EU; failure to send such a notification, results in administrative fines
- however, provided that the French authority will find out that the posting is unlawful (under the French labour law),a declaration of employment will be retroactively due; with simple words, the breach of concealed employment will be established retroactively; such a breach results in criminal sanctions
- situations of concealed employment shall give rise (first) to “discussions” (negotiation) with the employer, in view of regularisation (our note: for further details please address employers that have faced such negotiations)
- no automatic subjection to the French social security system, eventually only a presumption that the principle of lex loci laboris might be of relevance
Situations of lawful posting under the social security coordination regulations, and unlawful posting under the French labour law, are foreseeable. The intention is only to apply the French labour law (in its entirety), and not to challenge the social security subjection.
The declaration of employment must be considered as related to labour law (and not to social security).The fact that it must be lodged with a “social security body” is irrelevant, the latter acts as unique body. Lastly, merely registration with the social security authority, does not result in a subjection to the French social security system.
The EU Commission shares the same position, however, uphold that national labour laws, should not contain provisions that add supplementary conditions to the application of social security coordination rules.
In our view, as regards the distinction between the social security coordination and labour law, it is hard to challenge such a position.
However, the problem is not the principle, but its application as the case at issue, and in general, under the French national law and practice:
- as the case at issue, the arguments brought by the French Court of Appeal, in view of determining whether the postings are lawful under the French labour law, are (most) from the social security coordination regulations
- in general, the definition of “posted worker” under the French labour law, is in breach of the EU law (see inter alia the demand for clarification addressed by the ECJ)
In the same context, the (recent) French position in AFMB (C-610/18) must be recalled: the French government pleads for a convergence of the concepts of employer under labour law and social security coordination, while maintaining a clear distinction between these legal instruments.