Self-posting is the possibility for a self-employed person belonging to a country of the European Union to perform a service in another Member State, while remaining subject to the social security of his country of origin.
Thus, an Italian or Polish self-employed person will be able to perform a service in France without having to register with the RSI and without having to pay social security contributions in France. He will thus pay his contributions in his country of origin.
Often singled out as a mechanism facilitating social dumping at the expense of local employment, self-secondment follows strict rules that must be respected in order to use foreign self-employed workers safely.
1 — The conditions for self-detachment
a- The conditions related to the activity in the country of origin
The self-employed person must first prove a real and substantial activity in his country of origin. These criteria are assessed on a case-by-case basis and, in order to obtain the A1 form, the worker must in particular prove his registration with the local authorities as a self-employed person, a significant turnover or even the existence of professional premises.
The self-employed worker must also have an activity that has existed for at least two months in his country of origin and maintain his activity for the duration of the posting in France.
Thus, there is no question of ceasing all activity by liquidating his activity or by returning his premises for the duration of the service provided in France since the detached self-employed person must be able to resume his activity in his country of origin at any time.
b- The conditions related to activity in France
For its part, the duration of self-secondment in France must be limited in its scope and duration, without being able to exceed 24 months.
The nature of the activity carried out in France must also be similar to the activity carried out in the country of origin (construction, car...).
2 — The formalities to be completed
For the posting to be valid, it is necessary for the self-employed worker to obtain an A1 form from the authorities of his country of origin, which will carry out an initial check on compliance with the conditions of the posting.
The self-employed worker must then, throughout the service performed in France, be in possession of this form, especially in the event of an inspection.
For his part, the client must ensure that the posted self-employed worker he uses is in possession of this A1 form since 1 April 2017, in the event of an inspection, he incurs a fixed penalty if he does not produce the said document (L. 114-15-1 of the Social Security Code).
The penalty is equal to the monthly social security ceiling per worker concerned and can be doubled in the event of a repeat offense.
For the obligations of the client with regard to posted foreign employees: see hither
3 — The impossibility for the host country to unilaterally suspend the A1 form issued by the country of origin
In a recent judgment, the Court of Justice of the European Union recalled that the country of origin could not validly unilaterally suspend the validity of the A1 form (formerly E 101), even in the event of suspicion of fraud of the posting rules (CJEU, April 27, 2017, C620/15).
In fact, the CJEU states that” The E 101 certificate, in so far as it creates a presumption of the legality of the affiliation of the worker concerned to the social security system of the Member State in which the undertaking employing him is established, is binding on the competent institution of the Member State in which the worker concerned works ”.
Therefore, the host State that considers that the conditions for posting have not been met despite the validation of the A1 form by the authorities of the posted worker's country of origin must, in the absence of agreement with the country of origin, refer the matter to an administrative commission which will rule on the difficulty.
Tristan Hubert
#cotisationssociales #travailleurindépendant #détachement #UnionEuropéenne #formulaireA1 #autodétachement #CJUE
