Obligation of vigilance of the contracting party using a transport undertaking not established in France for a service with loading or unloading location in France.
How is the requirement for A1 certificates defined by European legislation?
As explained in the Regulations No 883/2004 and 987/2009 on the coordination of the social security systems. Regulation No 987/2009 lays down an obligation for the employer / the self-employed person concerned to notify the competent Member State of an activity that is pursued in another Member State (Article 15.1) and Regulation 883/2004 (Article 13.1 b and 13.2 b).
In case an activity is normally pursued in two or more Member States (like in the case of road transport), the person (driver) concerned is required to inform the relevant institution in the Member State of its residence (Article 16.1). In both cases, a certificate A1 is subsequently issued by the competent Member State. Its purpose is to evidence that its holder is affiliated to the social security scheme of that State and has no obligations to pay social security contributions in another Member State.
What about the French rule – an obligation to keep the A1 certificate inside the vehicle?
As laid down in the French rules, according to article L. 114-15-1 of the French social security code presentation of this document during roadside check is required. A failure to present A1 form during the time of control by the driver, road transport operator, its representative and/or counterparty in the meaning of article L. 8222-1 and L.8222-2 of the French labour code, was penalized in 2022 at the level 3 428, 00 Euro.
What about the French rules – an obligation to verify the social situation of his foreign contractor?
Under the French rules, according to Article D. 8222-7 of the Labor Code, the legal person who contracts with a contracting party, established or domiciled abroad, in another Member State, is considered as responsible to verify the social situation of this contracting party, upon conclusion of the contract and every six months until the end of its performance, with regard to Regulation (EC) No. 883/2004 of 29 April 2004 or an international social security agreement.
Otherwise, a declaration of compliance regarding payment of social security contributions, as provided for in Article L. 243-15 of the Social Security Code. In this case, the legal person must ensure the validity of this certificate A1 with the organization/organism responsible for collecting social security contributions and fees.
The latest decision of the French Court of Cassation
The French Court of Cassation stated in 2015 that only A1 certificate can attest to the regularity of the social situation of the contracting party established or domiciled in another Member State (Cass. Soc., Assemblée Plenary, November 6, 2015, n°14-10182 and 14-10193).
The contracting company is obliged to comply with the verification of the social situation and may be sanctioned in case of failure to provide an A1 certificate.
In this context, so mentioned above failure to verify constitutes the material element of the following offence: USE, BY LEGAL PERSON, OF THE SERVICES BY A PERSON PERFORMING UNDECLARED WORK defined by Articles L.8224-5, L.8224-1, L.8221-1, L.8221-3, L.8221-4 and L.8221-5 of the French Labor Code and ART.121-2 of the french Penal Code.
This position was recently confirmed by Court of Cassation, Criminal Chamber, by drawing the legal consequences of this failure to verify offence of consciously using a person performing the undeclared/ illegal work (Cass. Crim, February 21, 2023, n° 22- 81.903): “ Indeed, anyone who does not verify the regularity of the social situation of the contracting company is established in another Member State of the European Union, whose use their services, that it is in a position to provide the said A1 certificates for all the posted workers (including drivers also) it provides, consciously commits the offence of use of the services by a person performing undeclared work.”
The A1 certificate is mandatory for all posted workers, including drivers, and failure to provide it can result in fines for the employer. Employers should obtain the A1 certificate before posting their drivers to another EU country, and the certificate should be always carried by the driver during their posting period. Employers should apply for the certificate in advance of the posting, and the certificate is usually valid for up to 24 months.
In the context of posting drivers, the A1 certificate demonstrates that the posted driver remains covered by the social security system of their home Member State, and therefore is not required to pay social security contributions in the country where they are temporarily posted.
It is therefore important for all transport operators to carefully check that the contractor provides a valid certificate A1 to comply with French rules.
Failure to verify the contracting party to provide it, automatically prejudice the commission of the offence described above.
What is certificate A1, we have already discussed in Margareta Przybyla’s published article on the obligation to keep it inside the vehicle: Obligation To Keep A1 Form In The Vehicle – Truck Mobility Info – 2023 (truckmobility-info.com).