In the name of safety on construction sites and the information of workers on the rights applicable to them, some public authorities have tended to insert, in their calls for tenders, clauses aimed at imposing the French language on the various construction sites.
Criticized by some observers who consider that they are a disguised means of encouraging French companies and limiting the use of posted workers, some of these clauses, in their least restrictive form, have nevertheless been subject to conditional validation by the Council of State.
Focus on recent decisions in this area.
1°/ The “Molière” clause deemed illegal by the Administrative Court of LYON
The “Molière” clause is a clause providing forexclusive use of the French language on construction sites and is presented as having as its main objective to ensure the proper understanding of safety rules and applicable legislation by the various stakeholders.
Although the purpose invoked seems entirely justifiable and justified, this clause is very restrictive since it assumes that all workers present on the construction site master the French language. The introduction of such a clause in a call for tenders therefore considerably limits, in practice, the possibilities for posted workers to be employed on these sites, for lack of mastery of the French language.
Seized by the Prefect of the Region of the validity of such a clause, the Administrative Court of Lyon also cancelled, on 13 December 2017, the deliberation of the Auvergne-Rhône-Alpes region providing for the inclusion of this clause in tenders for regional public contracts. The Administrative Court thus considered that, contrary to what was supported by the Region, this clause was not intended to ensure the protection of employees but was intended to favour regional companies to the detriment of posted workers, which constituted a violation of the principles of freedom of access to public procurement and equal treatment of candidates (TA of Lyon of December 13, 2017, No. 1704697).
It is true that in this case, the Tribunal emphasized that the Region had, in an annex to the deliberations, acknowledged that it approved” these measures to “combat” the use of posted work on construction sites in the region” and that the region had shown its will “to have no posted workers on their construction sites ”, which certainly did not help the argument in favor of the validity of the clause thus drafted.
2°/ On the other hand, the Council of State validates the interpretation clause... subject to conditions
Faced with the risks of the illegality of such deliberations, other public authorities have provided for more moderate clauses by requiring not the use of French by each of the various actors but the presence of an interpreter in order to allow foreign workers to be aware of the applicable regulations.
This is the case of the Pays de la Loire region, which had provided, during a call for tenders, that candidate companies should:
- Have recourse to a qualified interpreter at their own expense in order to be able to ensure that the workers present and who did not master the French language were aware of the labor law rules that they could benefit from;
- Provide training to all personnel present on the various risks identified, this training having to be carried out by a qualified interpreter when the personnel concerned did not sufficiently master French.
The exclusive and systematic use of French was therefore not imposed on all employees, which mitigated the impact of restrictions on posted workers.
This has obviously borne fruit since the Council of State, after recalling that such a measure could not” be accepted only on condition that it pursues an objective of general interest, that it is suitable for ensuring the attainment of that objective and that it does not go beyond what is necessary to achieve that objective ”, validate this clause by considering (CE December 4, 2017, no. 413366):
- that this clause presents a sufficient link with the market and that it therefore does not have a discriminatory purpose but that it is on the contrary justified by the obligation of the employer posting employees to apply French labor law to them and to ensure their health and safety ;
- Whatit does not cause excessive costs to the contract holder and that it does not therefore constitute an attack on the principles of freedom of access to public procurement and equal treatment of candidates.
However, the decision of the Council of State has been criticized by some observers who consider that this clause remains disproportionate and that it will not pass the European Court of Justice (CJEU) if the case were brought so far. It is true that the concept of excessive cost is open to discussion and that the debate on interpretation clauses should not be ended by the Council of State ruling.
In fact, it seems that employees can be informed about their rights by means that are less restrictive than by the intervention of a qualified interpreter on the construction site, such as a display in the language of the employees concerned.
Moreover, while guaranteeing the correct understanding of the safety rules in the language of each of the stakeholders seems difficult to conceive, especially in emergency cases, without the presence of a person capable of ensuring the translation of the instructions, the requirement of the presence of a qualified interpreter at the expense of the service provider may seem disproportionate since it does not seem inconceivable that one of the workers, provided that he has a good command of the French language, can fulfill this role..
The debate is therefore not over but, pending a possible decision by the CJEU or the Council of State on otherwise worded interpretation clauses, these clauses should be multiplied in the tenders of the various local authorities which, beyond the legal reasons given, may wish to favour French companies at the expense of posted workers.
Tristan Hubert
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