Regulations impose heightened vigilance on contracts relating to the performance of work, the supply of services or the performance of commercial acts. These include production, manufacturing, processing, repair, construction, supply, sales and agricultural work contracts, as well as contracts for the provision of material, intellectual or artistic services, transport, industrial subcontracting or works.
This obligation has been reinforced by the "Macron" law, particularly with regard to the posting of employees (point 7), underlining the importance of compliance with liability and compliance rules.
1. Purpose of the obligation of vigilance
When a company, as principal, enters into a contract worth at least €5,000 (excluding VAT) for the performance of work, the supply of services or the performance of a commercial act, it must ensure that the subcontractor complies with its social obligations by requesting a certificate of vigilance issued by URSSAF or MSA.
When a subcontractor is the subject of an official report for undeclared work, and the principal has failed in its duty of vigilance, the principal may be held jointly and severally liable for payment of sums owed by the subcontractor to the Treasury and social security bodies.
2. Triggering the obligation
The obligation of vigilance must be respected by any company having contracted with an external service provider for an amount of at least €5,000 excluding VAT.
This is a global amount which is assessed in relation to the price actually paid or agreed, even if the transaction has been the subject of several payments or invoices.
3. Contents of the certificate of vigilance
If you meet the above condition, you must ensure that your co-contractor is up to date with its obligations when you sign the contract.
To do this, you need to ask for :
-a document certifying the company's registration (KBIS extract or proof of registration in the trade register);
- a certificate of provision of social security declarations and payment of social security contributions, known as the "attestation de vigilance", dating back less than six months;
- if the co-contractor employs employees, the certificate mentions the company's identification, the number of employees and the total remuneration declared during the last period for which the information was communicated via DSN.
4. Terms of delivery
The certificate of vigilance is issued by the collection agency to which the contractor belongs (URSSAF, RSI, MSA), if the person is up to date with his or her social obligations.
The attestation de vigilance is only available online.
If you are a member of net-entreprises.fr, URSSAF, RSI or MSA online services, you can find it in your secure area. If you are not yet a member of the online services, you must register now at www.net-entreprises.fr to consult your attestations.
5. Customer's obligation
As the client, you are required to:
- obtain a certificate of compliance from your co-contractor, certifying that he or she is up to date with his or her social security obligations as soon as the contract is signed, and every six months thereafter, until the work has been completed;
- check the authenticity of the information given on the certificate.
To this end, a security number has been assigned to the attestation to authenticate and secure the information transmitted.
You must therefore visit the website of the relevant collection agency to verify the authenticity of the document by means of a security code. Certificate verification - Urssaf.fr
6. Penalties for non-compliance
If you fail to carry out these checks and your co-contractor has resorted to concealed work:
- you may be subject to criminal prosecution (for individuals: 3 years' imprisonment and/or a fine of 45,000 euros; for legal entities: a fine of 225,000 euros);
- you will have to pay your subcontractor's social security contributions;
- you will lose the benefit of exemptions and reductions in contributions applicable to your employees for the entire period during which your subcontractor's concealed work offence has been established.
7. MACRON Act: enhanced due diligence obligations regarding the posting of employees
The law for economic growth adopted on August 06, 2015, known as the "Macron Law", aims to step up the fight against secondment fraud by making principals more accountable.
As a reminder, a seconded employee is any employee of an employer duly established and carrying on business outside France who, working habitually on behalf of the latter, carries out work at its request for a limited period on French soil.
Henceforth, the principal will have to assume a new obligation of vigilance by ensuring that his service provider, who posts employees on French territory, has prior to any intervention:
- transmitted the prior declaration of secondment to the labor inspectorate of the place where the service is carried out;
- appointed a representative in France who is responsible for liaising with the labor inspectorate, police and gendarmerie services, taxes and customs.
The principal will also be required to submit a declaration of secondment to the labor inspectorate, if the employer of employees seconded to France fails to comply with this obligation.
Finally, the principal will be required to enjoin the employer of employees seconded to France to comply with the obligation to pay its employees the minimum wage. Failing this, the principal will be obliged to pay the wages due.
The "Macron" law also strengthens penalties for principals who fail to meet their obligation of vigilance.
He will incur an administrative fine of up to €2,000 per seconded employee, with an overall ceiling of €500,000 (compared with €10,000 previously).
As a client, you must therefore ensure that the employer working for you (as a subcontractor, for example) provides its seconded employees with a legal status.
