Posted workers into France: new provisions, however insufficient! (Decree and Circular of 4th June 2019)

The decree and the order published on 5^th June 2019 (further to the “Avenir Professionnel” act) in relation to posted workers has modified some formalities and stat. the activities that are exempted from prior declaration of posting. These provisions are applicable since 5^th June 2019 except for some provisions that will be applicable from 1^st July 2019 onwards.

The following profiles are exempted from prior declaration of posting:

1. Cinema, music and TV professionals for period or periods of a total of 90 days maximum over twelve consecutive months
2. Sport professionals for period or periods of a total of 90 days maximum over twelve consecutive months
3. Apprentices within the frame of their specific training within a maximum period of 12 consecutive months
4. Workers coming to France to participate in seminars, conferences, scientific events, teaching activities within a maximum period of 12 consecutive months

The most significant provision introduced by the decree concerns the representative of the foreign employer company in France. Until now this representative had to be designated through a letter which is a separate formality from the prior declaration of posting process. Starting from 1^st July 2019, the representative’s appointment will be included in the regular online filing process and it will be valid for the duration of his/her assignment in France.

Besides, an additional change is provided for by the decree, as of 1^st July 2019 the gross hourly wage applicable during the secondment must be mentioned in the online filing instead of the amount of gross monthly wage.

In our opinion:

1. Employees posted to France to host or attend fairs, trade shows, conferences and seminars are exempted from prior declaration of posting process
2. However, employees posted to France as part of services provided by their foreign employer, as well as employees posted to France in a company which is a part of the Group employing him/her, remain subject to the prior declaration of posting, including for short assignment periods

Business travels being frequent for the economic activity of international groups, it is unfortunate that these two provisions exclude the employees assigned to France to attend professional meetings, either internal to their Group or with clients or potential clients, especially without considering the duration of their mission in France.

However, in our opinion, they may benefit from the exemption foreseen in the frame of secondment for the own account of the employer (no provision of service agreement with a client in France, no company transfer within a branch or a subsidiary of the foreign company), provided that there is no service agreement or that the secondment cost remains borne by the home employer wherein such cases we believe that the prior declaration of posting is not required.

As a conclusion, the basis of framework and conditions under which the employee is seconded on assignment to France, are crucial for assessing whether the process of prior declaration of posting is required or not.