This question is asked in the light of certain trends by the competent authorities, which have been noted in this direction during inspections on French territory.
Is the operations base a comprehensive concept which permits the employees of foreign airlines to be attached to France in almost all circumstances?
Whatever is decided the data are as follows:
Article L 1262-3 of the Labor Code (the former article L 342-4 of the said Code) provides:
‘An employer cannot invoke the provisions applicable to the posting of employees, if its business is totally directed towards the national territory or if it is performed in premises or with infrastructures, located on the national territory, from which the business is run in an habitual, stable and continuous way. It cannot invoke these provisions, if its business includes searching and prospecting for customers or recruiting employees on this territory. In these circumstances, the employees are subject to the provisions of the Labor code, governing businesses located on the national territory.’
How does this apply to airline companies in the private jet hire sector, i.e., which, strictly speaking, do not have infrastructures in France or any fixed and scheduled flights throughout the year?
How can these criteria of attachment to the national territory be applied when IT and Internet technologies mean that the structures for taking and organising orders are usually digitized with their permanent location on a given territory often the exception?
The question is even more problematic because article R 330-2-1 of the Civil Aviation Code derived from the decree of November 21, 2006 does not provide much help in solving the problem.
This article provides:
‘Art. R. 330-2-1. – Article L. 342-4 of the Labor code (L 1262-3 today) applies to air lines with their operations bases on French territory.
An operations base is a unit of premises or infrastructures from which a company runs an air transport business in a stable, habitual and continuous way with employees who have the centre of their work there. The centre of an employee’s work within the meaning of the above provisions is a place where the employee usually works, or where he or she begins working from and returns to after completing their mission.’
Now let’s return to the examples of the private jet hire company whose aircraft do not fly habitually over French territory.
This company does not have scheduled flights throughout the year because its activities are by nature, in habitual, as orders are taken and flight bookings are usually made on an occasional basis, through intermediaries working as ‘brokers’ over the Internet.
This volatility has another consequence: these companies naturally do not have structures on the national territory for the simple reason that they are not located there.
Although their aircraft may be parked on French territory fairly regularly, this is not because they are located there in the structural sense of the word, but because the company has received different orders for their services working out of France over a period of time.
Are these criteria, sufficient to consider that foreign employees who work for these companies from France over fairly regular periods of time, should be subject to the provisions of the French Labour code?
It is by no means clear from reading the above statutes.
In the event of a control, what criteria should be checked to establish whether this type of company is subject to the French Labor code or not?
Firstly, it is necessary to check whether the company possesses what the Civil Aviation Code defines as an ‘operations base’ in France.
What criteria should be noted within the meaning of article R 330-2-1 mentioned above ?
1 – ’the existence of premises or infrastructures from which a company runs an air transport business in a stable, habitual and continuous way’.
For instance private jet hire companies operating from another country in the EEC, with no infrastructure do not satisfy these criteria.
It is stressed that at the present time of remote working and the increasingly frequent digitization of structures, this criterion should definitely be reviewed and corrected to adapt to the modern world. A company can run a perfectly bona fide business on the Internet without having to possess any infrastructures in France.
2- ‘with employees who have the centre of their work there. The centre of an employee’s work within the meaning of the above provisions is a place where the employee habitually works, or where he or she begins working from and returns to after completing their mission’
Here again, the criteria is not very suitable to private jet companies whose employees never work habitually on the same site because their flight program is variable. In addition, what does ‘habitually’ mean? Does it mean a period of several months? Is it not a purely subjective criterion, which creates legal insecurity?
Difficulties of interpretation also arise with the notion of starting work and returning after performing one’s mission.
These issues have already been considered by the case law.
Thus, a judgement by the Council of State on July 11, 2007 in reply to applications by easyJet and Ryanair, which employed flight personnel under Irish law on services to and from French airports, held as follows with respect to the decree:
«The terms of Article R330–2– 1 of the Civil Aviation Code are restricted to reiterating that that under article L432-4 of the Labor Code, employees who work habitually in premises or infrastructures which are used by air transport companies to run their business in a stable, habitual and continuous way on French territory are subject to the Labor code. Article R330-2-1 of the Civil Aviation Code therefore explains the range of article L342-4 of the Labor Code in the air transport sector without adding to it. Therefore, the applicant companies have no grounds for arguing that article 1 of the attacked decree allegedly infringes this last article.
Under article 52 and 59 of the Treaty of Rome, which have become articles 43 and 49 of the Treaty Instituting the European Community, and as constantly interpreted by the European Court of Justice, a company in a Member state which maintains a permanent presence on another Member state, including via an ordinary bureau managed by its personnel or an independent person instructed by it to act permanently on its behalf as an agency, is subject to the rules concerning the freedom of establishment; the freedom to provide services guaranteed by the Treaty, does not prevent a Member state taking steps to stop a service provider using this freedom to perform a business activity which is totally directed towards its territory in a manner which avoids the labor regulations which would apply to it if it were established there, as this would be to contrary to the rules on the freedom of establishment. Therefore, by stipulating that the provisions relating to the transnational posting of workers do not apply to companies from another Member state whose activity is entirely directed towards the French territory or is performed in a stable, habitual and continuous way in premises or with infrastructures located on this territory, Article L342-4 of the Labor code has not disregarded articles 43 and 49 of the Treaty Instituting the European Community, nor, as Ryanair argues the Council’s Regulation (EEC) n° 407/92 of July 23, 1992 concerning air carrier licenses and Regulation (EEC) n° 2408/92 of July 23, 1992 concerning access by community air carriers to intracommunity air services.
Whereas the applicant companies are also ill founded, for the same reasons as above, to argue that article L342-4 of the Labor Code allegedly disregards the provisions of article 10 of
the Treaty Instituting the European Community concerning Member states and the Community’s institutions co-operating fairly and article 12 of the same Treaty on the principal of non-discrimination based on nationality. The sole fact that the coming into force of article L342-4 changes the applicant companies’ position does not mean that this article should be considered to be contrary to the principle of legal security or legitimate expectation.
The sole purpose of article L342-4 of the Labor Code is to reiterate that apart from the cases stipulated in articles L342-1 to L342-3 of the same code, transposing directive n° 96/71/EC of the European Parliament and the Council of December 16 1996, concerning the posting of workers when performing a service, the labor Code applies to companies established in France. Consequently, the applicant companies cannot rely on the provisions of the directive against them, which do not transpose them.
Article 342-4 of the Labor Code also does not lay down rules for the conflict of laws. Consequently, the applicant countries cannot invoke the provisions of the Rome Convention on the law applicable to contractual obligations of June 19 1980, which only applies to situations of conflict of laws under paragraph 1 of its article 1.
Whereas article L342-4 of the Labor code relating to the Labor law rules applying to employees on posting does not come within the scope of Council’s Regulation (EEC) n° 1408/71 of June 14 1971, concerning the application of social security schemes to employed or self-employed workers, and their family members who are move around inside the community. EasyJet therefore cannot rely on this ;»
It follows from this judgement that :
- The question whether French labour law should apply to dealings between an employee and a foreign company is not dependent on the rules of the conflict of the rules applicable to contractual obligations established by community law.
- In order to decide whether an air line whose activities are by nature, mobile, is established in France, one should ask whether the company possesses an establishment within the meaning of French law and whether this question should be governed with reference to the provisions of article R330-2-1 of the Civil Aviation Code.
- The Community rules on the posting of employees in Member states of the European Union do not prevent French law applying to the businesses mentioned in articles R330-2-1 of the Civil Aviation Code and L1262-3 of the Labour code, whose ‘business is totally directed towards the national territory or which is performed in a stable, habitual and continuous way in premises or with infrastructures, located on the national territory, from which the business is run in a habitual, stable and continuous way.
However, in our opinion the case law does not apply to companies with an occasional business activity on French territory performed from another Member state, without any infrastructures on French soil.
The position is complicated because flight personnel receive their orders from their country of origin and not France and begin their work in France after the company has transported them to their workplace. The company also takes responsibility for the flight personnel’s trip from the arrival destinations to their residence once their missions are completed.
The answer is perhaps to be found in European law.
A European MP recently asked the Commission to clarify the issue of the application of French law.
The MP requested the Commission’s observations on the following question:
“The Irish airline company Ryanair stated its intention to leave Marseille airport in order to position its aeroplanes in another European country. These are reprisals for the legal proceedings against it in France for illicit working (120 employees based in Marseille have Irish contracts as do all the Company’s other employees).
As transport services are excluded from the scope of the ‘Services’ directive, the airline companies continue to be governed by their national law and by the directive 96/71/EEC on the posting of workers, under which the principle of the rules of the country of origin apply.
The airline sector is nevertheless a very specific one : if flight personnel are by definition, mobile because their place of work is the international air space, they, at the same time, can be permanently established in a Member state of the Union, which is not necessarily the same one in which their company has its registered office. Can one therefore continue to talk about the posting of workers because of this specificity of flight personnel who work in the air?
As the flight sector and the low-cost sector in particular are rapidly expanding inside the European Union, it is essential that European legislation remains abreast of these changes.
Does the posting of workers directive still apply to flight personnel who work in the air but permanently reside in a Member state?
In the negative, if there is a legal vacuum for these specific cases, are the Member states still free to legislate?
What does the Commission intend to do to eliminate the grey areas which remain in European legislation on this point?”*
The reply on the Commission’s behalf on November 15, 2010 was as follows:
‘The directive 96/71/CE(1) concerning the posting of workers applies to employees who are temporarily posted to a Member state other than the one in which they habitually work.
In this case, it appears that Ryanair’s employees to whom the honourable MP refers are based in Marseille and (habitually) work from this city. Therefore they cannot be considered to be workers who are posted from Ireland to France and the directive 96/71/EC does not apply to their circumstances. This does not change the fact that the directive could apply to their activities if they were posted to another Member state from France.
Moreover, the question of the application of the directive on the posting of workers must be differentiated from another question concerning which legislation governs the Employment contract in these circumstances. The Regulation (EC) n° 593/2008 on the law, which applies to contractual obligations (2) stipulates that an employee cannot be deprived of the benefit of the contractual provisions granted to him/her by the Member state in which, or from which he/she habitually performs his/her work (article 8)
In the specific case of flight personnel, these provisions provide additional guarantees for employees, especially in the aviation sector independently of the legislation of the country where they were recruited. However, it may be difficult to precisely determine the place where the flight personnel work. This question must be considered on a case-by-case basis in accordance with all the specific elements for each situation. It must also be remembered that regulation (CE) n° 1899/2006 (3), which provides that each air carrier must designate a home base (4) for each crew member, may help in deciding the place where or from which the employee habitually works
(1) Directive 96/71/EC of the European Parliament and the Council of December 16, 1996 concerning the posting of workers for the supply of services, JO L 18 of the 1.1.1997.(2) Regulation (CE) n° 593/2008 of the European Parliament and the Council of June 17 2008 on the law which applies to contractual obligations (Rome I), JO L 117 of 4.7.2008, which came into force on December 17 2009 and applies to all employment contracts after this date.(3) Regulation (EC) n° 1899/2006 of the European Parliament and the Council of December 12 2006 modifying the Council regulation (CEE) n° 3922/91 on the harmonisa
tion of technical rules and administrative procedures in the civil aviation field JO L 377 of 27.12.2006.(4) home base means, ‘the place designated by the operator for the crew member where the crew member normally starts and finishes a duty period or series of duty periods and where, in normal circumstances, the operator is not obliged to accommodate this crew member’.
It follows from these observations by the Commission that many factors be taken into account to decide whether an employee habitually works in a given country of the Union and relating to flight personnel, ‘the place corresponding to the flight personnel’s home base should be taken into account to decide this point’.
Regulation number 1899/2006, which was mentioned in the Commission’s response defines the home base as follows: ‘the place designated by the operator for the crew member where the crew member normally starts and finishes a duty period or a series of duty periods and where in normal circumstances, the operator is not obliged to provide accommodation for this crew member.’
In the majority of cases, the home base is the company’s base in its country of origin, irrespective of the services which are subsequently occasionally performed in France.
However, this home base aspect is only rarely taken into account.
In a recent judgement by the ECJ (Koelzsch v/Grand Duchy of Luxembourg, March 15 2011), the Court held regarding an employee who worked on road haulage assignments on behalf of his Luxembourg-based employer, who was trying to invoke the application of German law, the place where the assignments were performed :
i[‘…. in so far as the objective of Article 6 of the Rome Convention is to guarantee adequate protection for the employee, that provision must be understood as guaranteeing the applicability of the law of the State in which he carries out his working activities rather than that of the State in which the employer is established. It is in the former State that the employee performs his economic and social duties and, as was noted by the Advocate General in point 50 of her Opinion, it is there that the business and political environment affects employment activities. Therefore, compliance with the employment protection rules provided for by the law of that country must, so far as is possible, be guaranteed.
Consequently, in the light of the objective of Article 6 of the Rome Convention, it must be held that the criterion of the country in which the employee ‘habitually carries out his work’, set out in Article 6(2)(a) thereof, must be given a broad interpretation, while the criterion of ‘the place of business through which [the employee] was engaged’, set out in Article 6(2)(b) thereof, ought to apply in cases where the court dealing with the case is not in a position to determine the country in which the work is habitually carried out.
It follows from the foregoing that the criterion in Article 6(2)(a) of the Rome Convention can apply also in a situation, such as that at issue in the main proceedings, where the employee carries out his activities in more than one Contracting State, if it is possible, for the court seised, to determine the State with which the work has a significant connection.]i
According to the Court’s case-law, cited in paragraph 39 of the present judgment, which remains relevant to the analysis of Article 6(2) of the Rome Convention, where work is carried out in more than one Member State, the criterion of the country in which the work is habitually carried out must be given a broad interpretation and be understood as referring to the place in which or from which the employee actually carries out his working activities and, in the absence of a centre of activities, to the place where he carries out the majority of his activities.
It follows from the foregoing that the referring court must give a broad interpretation to the connecting criterion laid down in Article 6(2)(a) of the Rome Convention in order to establish whether the appellant in the main proceedings habitually carried out his work in one of the Contracting States and, if so, to determine which one.
Accordingly, in the light of the nature of work in the international transport sector, such as that at issue in the main proceedings, the referring court must, as proposed by the Advocate General in points 93 to 96 of her Opinion, take account of all the factors which characterise the activity of the employee.
It must, in particular, determine in which State is situated the place from which the employee carries out his transport tasks, receives instructions concerning his tasks and organises his work, and the place where his work tools are situated. It must also determine the places where the transport is principally carried out, where the goods are unloaded and the place to which the employee returns after completion of his tasks.
In those circumstances, the answer to the question referred is that Article 6(2)(a) of the Rome Convention must be interpreted as meaning that, in a situation in which an employee carries out his activities in more than one Contracting State, the country in which the employee habitually carries out his work in performance of the contract, within the meaning of that provision, is that in which or from which, in the light of all the factors which characterise that activity, the employee performs the greater part of his obligations towards his employer.