The "Molière clause" imposing the use of French in public contracts is illegal
Many public purchasers impose in their public markets a clause called "Molière", requiring that the personnel assigned to the execution of a public contract speak French. This practice is presented as a way to combat "social dumping" by preventing companies from using posted workers. Criticized, it has just been condemned by an interministerial instruction intended for the prefects within the framework of the exercise of their control of legality of the deliberations and acts of the territorial collectivities.
Rule No. 1: Prohibition of the use of posted workers is illegal
The interministerial instruction clearly states that a clause prohibiting the use of posted workers in a public contract is contrary to Directive 96/71 of 16 December 1996 and to the principle of freedom to provide services provided by the Treaty on the Functioning of the European Union.
Consequently, the instruction indicates to the prefects that " Any measure constituting indirect discrimination shall be prohibited as an apparently neutral measure which may be of particular disadvantage to foreign undertakings even though it is not justified by a legitimate aim and does not consist of appropriate and necessary means to achieve this objective ".
Rule 2: National regulations on combating illegal work are sufficient
It is also recalled that French law includes measures to combat illegal work, particularly that of posted workers. Thus, not only do firms have particular obligations when employing posted workers, but also the owners have control obligations.
The contracting authority must ensure that its contracting party complies with its obligation to declare the detachment in advance and to appoint a representative in France. He must also make the declaration of the accident at work of which an employee seconded by a direct contractor of the contracting party is victim. It must promptly enjoin its direct contractual partner or its subcontractor to rectify the deficiencies related to the non-payment of the remuneration of employees seconded by them, of which he has been informed by a control agent.
The investigation considers that this system renders the use of specific clauses in public contracts unnecessary in order to control the use of posted work.
Rule n ° 3: The buyer can not request a declaration on the honor of not resorting to detached work
The instruction also reminds that the list of documents that can be requested at the application stage is limited by the decree of 25 March 2016. However, a declaration on the honor of non-use of detached work does not appear.
As a result, candidates for a public contract can not be required to submit such a declaration. Moreover, the investigation considers that such a statement does not appear legally useful since this does not in any way exempt the buyer from his responsibility for vigilance against fraud at work ".
Rule n ° 4: The obligation to speak French is contrary to the principle of equal access to the public order
As regards the obligation to use French-speaking workers for the performance of a public contract or a concession, the instruction clearly states that this is unjustified discrimination and an infringement of principle of equal access to public order.
Such an obligation could otherwise constitute a misuse of power if its purpose is in fact to give priority to local firms or to exclude foreign workers and not the proper performance of the contract. However, the instruction opens an exception: that or the obligation to speak French is related to the object of the contract and is necessary for the execution of the contract.