To use a subcontractor legally, the client must imperatively ensure compliance with a certain number of formalities by the subcontractors he uses.
However, the extent of the contractor's obligations depends on the nationality of the subcontractor.
I — If the subcontractor is domiciled in France
1) At the conclusion of the contract
When the amount of the service contract exceeds 5,000 euros excluding VAT, the client must ensure that the subcontractor meets its obligations to declare and pay contributions for its employees (L 243-15 Social Security Code).
To this end, the subcontractor should be asked to produce:
- A proof of registration (Kbis extract or trade register card);
- A vigilance certificate, issued by URSSAF, certifying compliance with its obligations by the subcontractor in social matters.
Note: it is also imperative for the contractor to ensure the validity of the certificates provided by the subcontractor by entering the security code appearing on the certificate on the dedicated URSSAF website: https://www.urssaf.fr/portail/home/utile-et-pratique/verification-attestation.html
If the subcontractor refuses to provide these documents or the certificate provided is false, it is better to turn to another service provider for the client or risk being exposed to:
- to the joint payment of contributions, taxes, duties and remuneration that may be due by the subcontractor;
- to the loss of the benefit of the exemptions from social security contributions applicable to its employees;
- to possible criminal proceedings for illegal work.
2) During the execution of the contract
Every 6 months, the contractor must ensure that the subcontractor complies with its obligations in terms of social declarations, so that vigilance certificates should be requested regularly.
In addition, if the contractor notices during the execution of the contract that the subcontractor is not complying with his social obligations, it is highly desirable to send him a registered letter with acknowledgement of receipt urging him to rectify the situation.
In the absence of regularization, a contractor who continues to use a subcontractor who he cannot ignore is not complying with his obligations is liable to a fine as well as to financial solidarity with the subcontractor.
II — If the subcontractor is a foreign company
This refers to cases where a foreign company will post employees to France so that they can carry out a mission for a contractor residing in France.
In this case, the foreign worker remains affiliated to the social security system in his country of origin, so that no contribution will be levied by French social security for this benefit if it lasts less than two years (“Posting” Directive No. 96/71/EC of 16 December 1996).
These cases of secondment are the subject of increased surveillance by control bodies, which have been given the fight against fraud at secondments as a priority objective under the 2016-2018 action plan.
Under these conditions, taking into account the probability of control, it is therefore particularly important to ensure, for the client, that all mandatory formalities are respected in order to prevent any risk of recovery.
The client must therefore request the copies:
- Proof of appointment of a representative of the company of origin in France to the competent Labor Inspectorate;
- The declaration of secondment made before the start of the service to the Labour Inspectorate.
If the declaration of secondment has not been received, it will be appropriate for the client to file this declaration himself with the labour inspectorate within a maximum of 48 hours from the start of the service.
These declarations of secondment must also be attached to the single personnel register, which is available to the labour inspectorate.
Finally, the contractor has an obligation to be vigilant in terms of respecting the dignity of posted workers and French labour law legislation (minimum wage, hours of work, etc.). Thus, if he is informed of breaches on the part of the company posting employees, he must order it to restore the posted employees to their rights and, failing that, terminate the service contract.
In the event of non-compliance with the abovementioned obligations, the ordering company may be jointly and severally liable for the payment of contributions, salaries, taxes and other indemnities that would be due by the foreign company, in addition to a fine of 2,000 euros per posted employee (up to a limit of 500,000 euros, within the limit of 500,000 euros, excluding the case of recidivism) and possible criminal sanctions specific to illegal work.
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