The French Conseil d’Etat recently ruled on the obligation to declare prior to the posting of workers in France, and more particularly on its temporal application (CE 24 February 2021, req. n° 431090). 

In this case, a Portuguese company asked for the cancellation of the fines inflicted by the Labour Inspection for failure to comply with the obligation to declare prior to the posting specified by the decree of March 30, 2015, which came into force on May 1, 2015. As the posting took place from May 4, 2015, but the service provision contract was concluded before the decree came into force, the company argued that it was compliant with its obligations since the information required by the previous regulation were sent on March 19, 2015, and since the beginning of the posting initially planned was March 23, 2015.

The Conseil d’Etat ruled that the obligation to declare prior to the posting is not attached to the service provision contract but to the posting of employees. Therefore, employers have to comply with this obligation for any effective posting performed from May 1, 2015. Neither the fact that the service contract was concluded before the decree came into force, nor the fact that the posting was initially scheduled before May 1, 2015, nor the fact that a declaration in accordance with the old regulations had been sent, justifies the compliance of the new obligation of prior declaration. This is due to the will to protect employees and to combat fraud.

Following the same reasoning, the Conseil d’Etat specified that the obligation to appoint a representative of the company in France is also applicable to any actual posting carried out as of May 1, 2015. 

It is essential to keep in mind that any failure to comply with these obligations may lead to an administrative sanction in case of control by the Labour Inspection. We draw your attention to the fact that, since the entry into force on July 30, 2020 of the ordonnance No. 2019-116 of February 20, 2019 transposing Directive (EU) 2018/957 of June 28, 2018 into French law (see our Newsletter “The new provisions applicable to the posting of workers in France“), the administration may prohibit an international provision of services when the employer has not paid an administrative fine imposed for failure to comply with an obligation regarding the posting. 

In light of this case law, which seems applicable to ordonnance No. 2019-116, it is crucial to comply with the new obligations arising from this ordonnance for any effective posting carried out as of July 30, 2020.