This article (following the one published yesterday) reviews the presence of foreign professionals in the Alpes Maritimes and the legal issues they face. We thank the author for clarifying many preconceived notions.
The international worker, a diverse category
The worker is necessarily attached to a social security system. Frequent travels with regular returns to their usual workplace do not make an employee a social stateless person. In the Ryanair case, the airline registered in Ireland was convicted in the first instance in 2013 for undeclared work and was ordered to settle unpaid contributions to URSSAF and pension funds (the appeal court will rule in October 2014). The court ruled that the existence of a base in Marseille required the payment of contributions in France. Even if the staff physically commuted daily, their family and professional interests were in Provence.
The attachment is clearer in the case of expatriates. In terms of Social Security, an expatriate employee is no longer attached to the social protection system of their country of employment. They then join the local system, with the risk that the level of benefits (care, allowances) may be lower. That is why companies can contribute additionally for their employees, for example to the Caisse des français de l’étranger. Self-employed workers follow the same logic.
The principle of applying the rules of the workplace seems obvious but complicates the departure of employees for short-term assignments. For this purpose, the detachment regime continues to connect the employee (or self-employed worker) to the social security of their country of employment (or registration) for a certain period, instead of switching them to the local system. It’s all a matter of duration: States, through bilateral international agreements, define varied durations, under which workers are not considered expatriates. The European Union allows for a maximum of two years on its side.
Facilitating exchanges and protecting consumers, a precarious balance
At the European level, and even more so globally, there are very few uniform rules in social matters. By social, we mean working conditions (working hours, minimum wage, etc.) and social protection (health insurance, unemployment, retirement).
Community regulations exist for working hours for aircrew, truck drivers, international train drivers, and sailors. By the directive 96/71/EC of 1996, posted workers must apply the host country’s regulations on minimum wage, maximum working time, safety, holidays, and union representation.
Few rules, therefore, but one that created controversy in 2006. We remember the Services directive, or “Bolkenstein directive,” named after the European Commissioner for the Internal Market. It intended, broadly speaking, to apply a reasoning similar to that for goods to workers. The idea is simple: the free movement of goods involves eradicating customs duties and other taxes that hinder trade between member states, but also dealing with manufacturing standards.
Indeed, while the objective of consumer protection is commendable, it logically reduces trade. To maintain a level of protection throughout Europe, standards (automobiles, elevators… under the CE standard) are harmonized. Or, national standards remain, and products are allowed entry. The same goes for workers.
From then on, a misreading of the text, a legitimate desire to improve social standards, or blatant bad faith, depending on the perspective, generated such a violent debate that even Brussels decided to modify the project… The directive adopted on December 12, 2006, therefore excludes many fields from the free provision of services (banks, transport, telecommunications, mail, etc.) and does not affect diploma requirements in health (harmonized rules).
Unforeseen issues, abuses, and points to clarify
In practice, the implementation of the free provision of services and detachment has posed certain problems, delighting jurists. Firstly, “off-shore” expatriation, which involves attaching an employee to a socially advantageous location for the company despite the reality of their work, exists but is now better identified by administrations.
Next, the case of the private Fernando Pessoa University. In Portugal, it is authorized to issue medical degrees, and the holders can establish themselves in another member state, under the European recognition of these diplomas. Nothing new here. However, the entity’s leaders decided to create a specialty in dentistry at the CLESI campus in Toulon, among others. The Order protested, and the ministry filed a complaint. The battle moved to the courts: the first decision favored CLESI in February 2014. The opinion of higher jurisdictions is eagerly awaited, as such a precedent hasn’t emerged for a long time…
Lastly, abuses related to detachment. Detaching an employee to send them on a mission to a group subsidiary or with a client poses no problem. Starting a temporary employment agency to detach temporary workers to take advantage of a social contribution differential raises questions. Indeed, note that the detached employee remains linked to the social system of their country of employment.
Temporary workers are employees of the temporary employment agency and are made available to user companies. In the summer of 2014, the European Parliament and governments obtained a revision of the 1996 directive to ensure the application of local rules and make the user company jointly liable in the event of condemnation of temp agencies.
Thus, it is evident that the application of rules, precise as they may be, brings surprises. Much remains to be done to create a European labor market that fairly protects all workers. Provided there are enough labor inspectors, of course…
Pierre-Marie Vague, European Movement Alpes Maritimes
