Concealed work, ascertaining the legality of a promoter’s social and tax position
Tuesday, 17 August 2004
Court of cassation, Criminal Division, 4 November 1997 - Court of appeal of Aix en Provence, Criminal Division, 17 September 1996
In this affair, the organizer of a fair was found guilty of clandestine work for having used the services of an entertainment promoter without ascertaining that the latter’s social and tax position was in order.
Although this decision of the court of cassation provides no new elements regarding the legal rules, it stands as an example of a conviction for clandestine work in the field of live entertainment.
Following an inspection of the Mexican pavilion at the fair, during which Direccte officials noted the presence of 7 Mexican musicians and dancers not authorized to have salaried employment in France, the fair manager was prosecuted among other things for having knowingly used the services of clandestine workers.
The fair manager had engaged a firm to refit and decorate the buildings and a restaurant and supply a group of dancers. He had signed a contract under which the firm undertook to hire a group of dancers for 12 performances on his behalf for a total of 62,400 francs, their accommodation and welfare contribution costs being borne by him; a contract was signed by the firm’s manager and a person referred to as "troupe agent" for a total of 62,400 francs. The said contract for the hiring of the troupe failed to specify the number, identity or fee of the artists in question.
In the opinion of the court of appeal, and on the basis of these particulars and the pre-trial examination, the person the contract referred to as “troupe agent” has in fact acted as an entertainment promoter and employer of the dancers and musicians; it was therefore up to him to require his registration and file the declarations required by the social welfare organizations and the tax authority. The court therefore found him guilty of clandestine work.
The court of appeal also found the fair manager guilty of the offence of using the services of clandestine workers, because it was up to him to ascertain that the entertainment promoter he had used and who had been engaged by the firm had duly completed the filing and registration formalities incumbent upon him.
The fair manager contested this sentence before the court of cassation on the grounds that there was nothing to prove that he knew that the said formalities and filing obligations had not been fulfilled.
But the court of cassation dismissed this claim and confirmed its 3-year suspended prison sentence and a 100,000-franc fine.
Indeed, article L. 324-9 of the labour code bans the use, knowingly or though an intermediary, of services of a person working in clandestine conditions. Moreover, article L. 324-14 obliges anyone signing a contract in excess of 20,000 francs1 for performing work, providing a service or making a commercial transaction, to ascertain that :
1 This obligation concerns contracts in excess of €3,000.
Following an inspection of the Mexican pavilion at the fair, during which Direccte officials noted the presence of 7 Mexican musicians and dancers not authorized to have salaried employment in France, the fair manager was prosecuted among other things for having knowingly used the services of clandestine workers.
The fair manager had engaged a firm to refit and decorate the buildings and a restaurant and supply a group of dancers. He had signed a contract under which the firm undertook to hire a group of dancers for 12 performances on his behalf for a total of 62,400 francs, their accommodation and welfare contribution costs being borne by him; a contract was signed by the firm’s manager and a person referred to as "troupe agent" for a total of 62,400 francs. The said contract for the hiring of the troupe failed to specify the number, identity or fee of the artists in question.
In the opinion of the court of appeal, and on the basis of these particulars and the pre-trial examination, the person the contract referred to as “troupe agent” has in fact acted as an entertainment promoter and employer of the dancers and musicians; it was therefore up to him to require his registration and file the declarations required by the social welfare organizations and the tax authority. The court therefore found him guilty of clandestine work.
The court of appeal also found the fair manager guilty of the offence of using the services of clandestine workers, because it was up to him to ascertain that the entertainment promoter he had used and who had been engaged by the firm had duly completed the filing and registration formalities incumbent upon him.
The fair manager contested this sentence before the court of cassation on the grounds that there was nothing to prove that he knew that the said formalities and filing obligations had not been fulfilled.
But the court of cassation dismissed this claim and confirmed its 3-year suspended prison sentence and a 100,000-franc fine.
Indeed, article L. 324-9 of the labour code bans the use, knowingly or though an intermediary, of services of a person working in clandestine conditions. Moreover, article L. 324-14 obliges anyone signing a contract in excess of 20,000 francs1 for performing work, providing a service or making a commercial transaction, to ascertain that :
- the other contracting party is duly registered when this is mandatory;
- it has duly completed all the filing requirements imposed by the social welfare and tax authorities;
- and that, if he uses salaried workers, he meets his obligations, in particular with regard to pay slips and the single register of personnel.
1 This obligation concerns contracts in excess of €3,000.
