European artists and paid leave
Wednesday, 25 April 2007
Court of cassation, Social division, 20 December 2006, appeal no. 04-16550
2007-04-25With regard to paid leave contributions for artists who are European nationals, one should first check whether or not they are registered as service providers in their member state of origin.The Caisse des Congés Spectacles (paid leave for entertainment workers fund) had served a writ on the Société des amis de la musique association to pay paid leave contributions for employing French and foreign artists intermittently from 1982 to 1994.
The association advanced two arguments to contest payment of the paid leave contribution:
On the grounds of the presumption stated by article L762-1 of the labour code, the court of appeal took this to be a mere allegation.
Consequently, in the eyes of the court, since the association could not produce any evidence to refute the presumed salaried status, the paid leave contribution was due.
On this point, the court of cassation quashed the court of appeal: since this concerned artists who were nationals of a European community member state, the court of appeal could not content itself with demanding that the association produce evidence to refute the presumption of salaried status.
On the contrary, it considered that it was the duty of the court of appeal to check whether or not the writ served to recover the disputed contributions concerned artists registered as service providers in their member state of origin, where they ordinarily provided similar services.
The Court of Cassation thus drew conclusions from the European Court of Justice ruling (ECJ) dated 15 June 2006.
The said ruling of the ECJ states that the presumption of salaried status constitutes an obstacle to the free provision of services when applied to artists recognized as service providers in their member state.
The Court of Cassation thus confirms that the burden of proof is alleged for artists who are European nationals.
In the past, in order to refute the presumption of salaried status, case law required the French promoter to prove not only that the artist was duly registered as a service provider in his country of origin, but also that he had a stake in both the risk and profits of the production.
Henceforth, the paid leave contribution cannot be demanded if the company can prove that:
Last Updated ( Tuesday, 10 February 2009 )
The association advanced two arguments to contest payment of the paid leave contribution:
- it was not an entertainment company in the sense of article D.762-1 of the labour code, which defines exactly which types of employer are required to pay the paid leave contribution;
- the presumption of salaried status as set out in article L.762-1 of the labour code was incompatible with the provisions of article 59 of the Treaty of Rome (49 EC).
On the grounds of the presumption stated by article L762-1 of the labour code, the court of appeal took this to be a mere allegation.
Consequently, in the eyes of the court, since the association could not produce any evidence to refute the presumed salaried status, the paid leave contribution was due.
On this point, the court of cassation quashed the court of appeal: since this concerned artists who were nationals of a European community member state, the court of appeal could not content itself with demanding that the association produce evidence to refute the presumption of salaried status.
On the contrary, it considered that it was the duty of the court of appeal to check whether or not the writ served to recover the disputed contributions concerned artists registered as service providers in their member state of origin, where they ordinarily provided similar services.
The Court of Cassation thus drew conclusions from the European Court of Justice ruling (ECJ) dated 15 June 2006.
The said ruling of the ECJ states that the presumption of salaried status constitutes an obstacle to the free provision of services when applied to artists recognized as service providers in their member state.
The Court of Cassation thus confirms that the burden of proof is alleged for artists who are European nationals.
In the past, in order to refute the presumption of salaried status, case law required the French promoter to prove not only that the artist was duly registered as a service provider in his country of origin, but also that he had a stake in both the risk and profits of the production.
Henceforth, the paid leave contribution cannot be demanded if the company can prove that:
- the artists are recognized as service providers in their member state (evidence of registration in a register of trades, if this is mandatory in the country he is based in);
- they regularly provide similar services;
- the conditions for working on French territory do not infer that the artist is hierarchically subordinated to the person for whom the service is being performed in France
