The formalities required to second to France an employee working for an EU-based company have now been significantly reduced in order to guarantee the freedom to provide services, a pillar of the Rome Treaty.
The European Court of Justice (“ECJ”) ruled several years ago that requirements to obtain a regular work permit (and to pay related expenses) for non-EU nationals who are established in another country to that where the services are provided, subject to a fine should a company fail to comply, constituted a barrier that was contrary to the freedom to provide services (articles 49 and 50 of the EU Treaty) (9 August 1994, Vander Elst).
By way of example, it is widely known that it would be contrary to EU law for French law to require a Moroccan employee, working in France for a Portuguese-registered company, to have to obtain such a work permit (27 March 1990, Rush Portuguesa).
As a consequence, an employee seconded from a EU-based company to France to provide services will not have to obtain a work permit from the French authorities (DDTEFP) prior to his working period.
The ECJ has stated that it deems equally unacceptable any system of prior authorisation, or any requirement of a minimum length of service by the employee (judgments dated 19 January 2006 and 21 September 2006). These it considers to be disproportionate to the alleged objectives of protecting employees.
However, certain declarations may be made; one such example is the statement of secondment required under article D.341-5-7 of the French Employment Code. Indeed, this provision sets out an obligation on the part of the seconding company to send a number of administrative forms to the Employment Inspector prior to the commencement of the secondment.
On these forms the employer must set out mandatory information such as the place(s) where the secondee will perform the services, his start date, the estimated duration, the nature of the activities carried out and whether they involve the use of dangerous materials or processes.
E 101 Certificate
In order to maintain his current social security position during his working period in France, the secondee must obtain an E 101 Certificate from the relevant authority in his current country of employment.
By way of conclusion, if an EU-based company is contemplating the secondment to France of an employee, it must not forget to follow the relevant procedure, for which guidance is now readily available and which is actually relatively easy to implement.