As consequence of a tightening of controls by the French inspection authorities, the fulfillment of all requirements in case of subcontracting is subject to verification.The hereby public service announcement is intended to remind you that, pursuant to Law No. 75-1334 of 31 December and Article L1262-4-1 (Code du Travail), in your capacity as Principal within the framework of the subcontract, you are responsible for ensuring that the subcontractor actually fulfill all the obligations to be met in the event of a service being provided in France, pursuant to Articles L. 1262-1 and L. 1262-2 (Code du Travail).
The case at hand is the one in which an Italian company (A), which provides services in France for a French customer (C) and, in the performance of the intervention, makes use of a third company (B) which provides its services under a subcontract.
In the relationship between A and C, the French company is the “client”, which has the obligation: to supervise A (direct supervision); to require the visioning of the subcontract between A and B (Law No. 75-1334 of 31st December, Code du Travail) and, finally, to supervise B (indirect supervision).
In the relationship between the Italian company (A) and the subcontractor (B), the Italian company, as Principal, has the obligation to supervise B (direct supervision).
In the case of violations committed by A or B, the sanctionable parties will therefore be: the client C, the Italian client A and the subcontractor B.
We remind that the obligations to be respected by the subcontractor are all those provided for by the transposition in France of Directives 96/71 and 2014/67; therefore, they are:
- The transmission of the Declaration of Posting for all employees working at a workplace in France (article R1263-12 of the Code du Travail).
- The appointment of a representative of the company domiciled in France (Article R1263-2-1 of the Code du Travail).
- The alignment with French minimum wage and compliance with working hours and general conditions.
- The storage of all documentation during and after the posting, for a reasonable time, in case of request by the inspection authorities (art. 9, para. 1c Dir. 2014/67/EU).
- The client company A must also keep a copy of the subcontracting agreement in order to make it available to French inspection authorities and send a copy to client C. We remind that the subcontract must comply with Italian law, but also with French law, as it has jurisdiction over the territory, and must be drafted in both languages.
- Fulfillments with regard to Occupational Safety required under French law: Before the beginning of works, the French company (C) is required to draft a safety plan (“Plan de Prévention“), together with any external company involved in the workplace (A and/or B), to identify risks and implement preventive measures. Article 4512-7 of the Code du Travail determines the two cases in which it is necessary to draft such a document. To follow:
- Where the operation to be carried out by external undertakings, including the subcontractors to which they may have recourse, foresees at least 400 hours of work, over a period equal to or less of 12 months, whether the work is continuous or uninterrupted [….];
- Whatever the foreseeable duration of the operation, when the work to be carried out is among the dangerous works included in a list respectively by a decree of the Ministry for Labour and a decree of the Ministry for Agriculture (Arrêté du 19 mars 1993).