La société d’avocats Damy
La Société d'avocats Damy à Nice assure une prestation de haut niveau, de la consultation d’un avocat à la représentation en justice. Les avocats du cabinet sont compétents en droit des affaires, des sociétés, droit immobilier, droit bancaire, droit social, droit des victimes et cas de dommages corporels. Membre de l’Association des avocats praticiens en droit social, Maître Grégory Damy dispose de certificats de spécialisation.
The requalification of the auto-entrepreneur status as an employment contract once again reaffirmed
In a much-publicised ruling, the Commercial Chamber of the Court of Cassation had on 28 November 2018 reclassified the status linking a courier delivering meals on wheels with a digital platform into an employment contract.
In an explicit recital, the Court of Cassation held that "the existence of an employment relationship depends neither on the will expressed by the parties nor on the name they have given to their agreement, but on the de facto conditions under which the activity of the workers is carried out. In this way, the subordination link is characterized by the execution of work under the authority of an employer having the power to give orders and directives, to control their execution and, in fine, to sanction the failings of his subordinate".
Faced with the rise in power of these new generation digital services and the growing phenomenon of the uberisation of society, one question remains unanswered: what should be the legal qualification of this employment relationship?
This is the question that the French courts are increasingly facing and which the Court of Cassation is trying to answer. In fact, the use of self-employed contractors has been increasing for years, the use of this technique by clients in conditions of salaried employment is growing and this instrumentalisation seems to be on the rise...
It is in this environment that, one year after the now famous Take Eat Easy ruling, senior judges have once again come to rule on the relationship between a lorry driver, operating under the status of auto-entrepreneur, and the company employing him.
In order to re-qualify the disputed relationship, the magistrates developed a multi-stage reasoning and compared different sets of evidence to reach their conclusions.
To this end, the Court of Cassation relied on Article L-8221-6-1 of the Labour Code and thus conducted a contrario reasoning. Indeed, the aforementioned article states that "a self-employed person is presumed to be one whose working conditions are defined exclusively by himself or by the contract defining them with his principal".
In the context of the relationship between the company and the driver, it has been pointed out in particular that :
- A vehicle was placed at the disposal of the person concerned by the company (petrol and maintenance paid for by the company). - The driver had to make various deliveries to places defined beforehand by and on behalf of the company. - The person concerned had to report to the company by handing over records of his activity.
From these bundles of evidence, the Court of Cassation quickly noted a power of subordination of the company over the interested party, with means placed at its disposal accompanied by a total lack of independence in the organization and execution of its work. In this way, a contract of employment between the company and the person concerned can only be characterized as a contract of employment between the company and the person concerned, thus rendering the status of self-employed person incompatible with the situation of the case in point, who is in reality no other than an employee of the company.
This judgment is once again in line with the first Take Eat Easy judgment and confirms a current trend which is tending to take hold in the legal landscape of French labour law. The mindset of senior magistrates seems to be moving in a direction that tends not to make these new professions more precarious and undoubtedly to put the legal framework defined by the Labour Code back at the centre of these relations.