Key Benefits:
The public concerned: employers of the general regime and the agricultural regime.
Subject: procedure for the adjustment of social contributions and contributions in the event of concealed work or lack of compliance following observations in a previous inspection.
Entry into force: the text comes into force on January 1, 2014, except section 2, which comes into force on the day after the publication of the text.
Notice: the Act No. 2012-1404 of 17 December 2012 Social Security Funding for 2013 created a 10 per cent increase in the amount of the recovery of social contributions and contributions assessed as a result of a review when there is a lack of consideration of the reported observations during a previous review and a 25 per cent increase in the amount of the recovery of social contributions and contributions assessed as a result of a control in the event of a concealed work finding. The decree specifies the procedure applicable in particular to ensure compliance with the principle of the conflict (arts. 8 and 11) and provides that the first of the increases is applied if the observations made at the previous inspection were notified less than five years before the date of notification of the new observations recognizing the breach of the same obligations (arts. 4 and 21).
The SSA for 2013 also amended the provisions providing for the cancellation of exemptions and reductions of social contributions and contributions received by an order donor in the event of a concealed work in one of its subcontractors: the concept of complicity with the subcontractor, difficult to establish in practice, was substituted the criterion holding that the policy donor did not conduct the work checks to detect the work done The decree specifies the procedure applicable to the corresponding adjustment (art. 2).
References: the decree is taken for the application of the articles 98 and 101 Act No. 2012-1404 of 17 December 2012 on social security financing for 2013. The Social Security Code and Rural Code and Maritime Fishing Amended by this decree can be consulted, in their writing resulting from this amendment, on the website Légifrance (http://www.legifrance.gouv.fr).
The Prime Minister,
On the report of the Minister of Social Affairs and Health and the Minister of Agriculture, Agri-Food and Forestry,
Vu le Rural Code and Maritime Fishingincluding article L. 725-22-1;
Vu le Social Security Codeincluding articles L. 133-4-5, L. 243-7-6 and L. 243-7;
Vu le Labour code ;
Considering the opinion of the Central Board of Directors of the Agricultural Social Mutuality of 18 July 2013;
Having regard to the advice of the Board of Directors of the Central Agency of Social Security Agencies dated 26 July 2013;
The State Council (Social Section) heard,
Decrete:
In the first paragraph of section R. 133-8 of the Social Security Code, the words: "Recommended letter with a request for a notice of receipt" are replaced by the words: "any means to report the evidence of its date of receipt".
In section 3 of chapter III of Book III of the first part of the same code, an article R. 133-8-1 is reinstated as follows:
"Art. R. 133-8-1.-When it is not a result of a control conducted under section L. 243-7 of this code orArticle L. 724-7 of the Rural and Maritime Fisheries Code, any relief resulting from the implementation of the provisions of section L. 133-4-5 shall be notified to the order donor or contractor by a document signed by the director of the recovery agency, transmitted by any means to report the evidence of the date of receipt.
This document recalls the references to the concealed work report against the contracting party, specifies the breach, the period on which it carries, and the amount of the sanction envisaged.
This document also informs the person in question that it has a 30-day time limit to make representations by any means to report the evidence of their date of receipt and that the person has the right to be assisted by a person or counsel of his or her choice. Upon the expiry of this period and, in the event of observations of the order donor or contractor, after notifying the amount of the penalty, the director of the recovery agency shall collect the sums due under the rules and the guarantees and penalties applicable to the recovery of social security contributions. »
Section R. 243-18 of the same code is amended as follows:
1° In the first and second paragraphs, after the word "assessments", the words "and contributions" are inserted;
2° The third paragraph is deleted;
3° In the fourth, which became third paragraph, before the reference: "R. 243-59", the reference is inserted: "R. 133-8,".
After article R. 243-18 of the same code, an article R. 243-18-1 is inserted as follows:
"Art. R. 243-18-1. - The increase provided for in Article L. 243-7-6 shall be applied if the observations made on the occasion of a previous inspection were notified less than five years before the date of notification of the new observations recognizing the breach of the same obligations.
This increase is applied to the portion of the recovery resulting from the recurring breach of the obligations in question. »
In the first sentence of article R. 243-19 of the same code, after the reference: "L. 243-7-2", the references are inserted: "L. 243-7-6, L. 243-7-7,".
Article R. 243-19-1 of the same code is amended as follows:
1° In the first paragraph, the words "in the first two paragraphs of the article" are deleted;
2° The last three preambular paragraphs are replaced by a subparagraph:
"However, the automatic remission does not apply where the increases and penalties relate to the assessed contributions and contributions made on the basis of a control conducted under section L. 243-7 or as a result of the implementation of the provisions of section L. 243-7-5. »
Article R. 243-20 of the same code is amended as follows:
1° The fourth paragraph of I is replaced by the following:
"The decisions of both the director and the friendly appeal board are motivated. » ;
2° II is replaced by the following:
“II. ― By derogation from the provisions of I, no surrender of increases and penalties may be granted:
1° Under the amount of contributions and contributions relating to remuneration, paid or due to employees, reinstated in the assessment base as a result of the controls referred to in sections R. 243-59 and R. 243-59-3, where the employer's absence of good faith was found under the conditions set out in R. 243-59;
2° In respect of the amount of contributions and contributions relating to remuneration reinstated as a result of the finding of the concealed work offence set out in the sections L. 8221-3 and L. 8221-5 the Labour Code;
3° If the employer has not properly proved its good faith. »
Section R. 243-59 of the same code is amended as follows:
1° In the first paragraph:
(a) In the first sentence, the words: "recommended letter with acknowledgement of receipt" are replaced by the words: "any means to report the proof of the date of receipt" and the words: "at L. 324-9" are replaced by the words: "at L. 8221-1";
(b) In the second sentence, the words: "refer to a document" are replaced by the words: "reports of the existence of a document entitled "Charter of the controlled contributor" and the words: "It will be returned from the beginning of the control and specifies the e-mail address where this document is accessible" are deleted;
(c) The third sentence is replaced by the following:
"He specifies the e-mail address where this document, the model of which is set by order of the Minister for Social Security, is available and indicates that it is sent to the contributor on his request. » ;
2° In the fifth paragraph:
(a) In the second sentence, after the word "adjustments", the words are inserted: "and any increases and penalties defined in sections L. 243-7-2, L. 243-7-6 and L. 243-7-7";
(b) After the second sentence, a sentence as follows:
"In the event of a reiteration of a practice that has already been the subject of an observation or recovery during a previous inspection, it specifies the elements characterizing the finding of non-compliance defined in section L. 243-7-6. » ;
(c) The fourth sentence, which became fifth, was replaced by the following provisions:
"The finding of non-compliance and the finding of lack of good faith are countersigned by the director of the recovery agency. » ;
3° In the eighth preambular paragraph, the words "of that of the recovery inspector" are replaced by the words "of his own letter in response."
Aunt first paragraph of Article R. 723-130 of the Rural and Maritime Fisheries Code, the reference to section D. 724-7 is replaced by the reference to section R. 724-7.
Article D. 724-7 of the same code becomes Article R. 724-7 and is amended as follows:
1° The reference to Article L. 324-9 is replaced by the reference to Article L. 8221-1;
2° The words: "recommended letter with notice of receipt" are replaced by the words: ", by any means to report proof of receipt."
Article D. 724-9 of the same code becomes Article R. 724-9 and is amended as follows:
1° The first paragraph is replaced by the following:
"At the end of the inspection, the farm social mutuality fund shall address to the controlled persons, by any means to report the evidence of its receipt, a document recalling the subject matter of the inspection and mentioning the documents consulted, the period verified and the date of the termination of the control and, where applicable, the observations made during the inspection, including the indication of the nature and the method of calculating the possible reliefs of the examination, L. 243-7-6 and L. 243-7 the social security code, or the amount of benefits to be paid, as known at that date. » ;
2° After the first preambular paragraph, a sub-item reads as follows:
"In the event of a reiteration of a practice that has already been the subject of an observation or recovery during a previous inspection, this document specifies the elements characterizing the finding of non-compliance defined in theArticle L. 243-7-6 of the Social Security Code.
3° In the second paragraph, which became third, the words "in the preceding paragraph" are replaced by the words "in the two preceding paragraphs";
4° In the last paragraph, the words: "delay" are deleted.
In the seventh paragraph of section R. 725-27 of the same code, the reference to section D. 724-7 is replaced by the reference to section R. 724-7.
At a of section R. 725-28 of the same code, the reference to section D. 724-9 is replaced by the reference to section R. 724-9.
Article R. 731-68 of the same code is amended as follows:
1° In the first paragraph, the words: "A contribution or fraction of a contribution that is not paid" are replaced by the words: "A contribution or contribution, or any portion of a contribution or contribution that is not paid" and the words: "is increased by 5%" are replaced by the words: "are increased by 5%. » ;
2° The last paragraph is deleted.
Article R. 731-69 of the same code is amended as follows:
1° The first paragraph is preceded by a "I" and the words "in article L. 731-22, in the first and second paragraphs of article R. 731-68 and articles D. 731-21 and D. 731-41" are replaced by the words "in articles L. 731-22, R. 731-68, D. 731-21 and D. 731-41";
2° After the 3°, it is added a II as follows:
“II. ― The automatic remission does not apply where the increases and penalties relate to the assessed contributions and contributions made after a control conducted under section L. 724-7 or as a result of the implementation of provisions of Article L. 243-7-5 of the Social Security Code. »
Article R. 741-23 of the same code is amended as follows:
1° In the first and second paragraphs, after the words "assessments", the words "or contributions" are inserted;
2° The third paragraph is deleted.
In the first paragraph of section R. 741-24 of the same code, the words "delay" are deleted and the words "in sections R. 741-22 and R. 741-23" are replaced by the words "in sections L. 725-25, R. 741-22 and R. 741-23 of this code and in sections L. 725-25, R. 741-22 and R. 741-23 of this code L. 243-7-6 and L. 243-7 the Social Security Code."
Part II of section R. 741-25 of the same code is replaced by the following:
“II. ― The provisions of the I shall not apply where the increases and penalties relate to the assessment and assessment made on the basis of a control carried out under section L. 724-7 or as a result of the implementation of provisions of Article L. 243-7-5 of the Social Security Code. »
Article R. 741-26 of the same code is amended as follows:
1° In I, the words: "in case of good faith duly proved" are deleted;
2° II is replaced by the following:
“II. ― By derogation, it may not be granted a remission of increases and penalties in the following cases:
1° In respect of contributions or contributions relating to remuneration, paid or due to employees, reinstated in the assessment base as a result of the controls referred to in sections L. 724-7 and L. 724-11 where the employer's lack of good faith was found after the procedure provided for in section R. 724-9 was implemented;
2° In respect of contributions or contributions relating to reintegrated remuneration following the finding of the concealed work offence defined in theArticle L. 8221-5 of the Labour Code ;
3° If the employer has not properly proved its good faith. »
In the first paragraph of section R. 741-27 of the same code, the words "related delay increases" are replaced by the words "related increases and penalties".
After article R. 741-28 of the same code, an article R. 741-28-1 is inserted as follows:
"Art. R. 741-28-1. - The majoration planned for theArticle L. 243-7-6 of the Social Security Code is applied if the observations made on the occasion of a previous check have been notified less than five years before the date of notification of the new observations recognizing the breach of the same obligations.
This increase is applied to the portion of the recovery resulting from the recurring breach of the obligations in question. »
With the exception of Article 2, this Order comes into force on January 1, 2014.
The Minister of Economy and Finance, the Minister of Social Affairs and Health, the Minister of Agriculture, Agri-Food and Forestry, and the Minister Delegate to the Minister of Economy and Finance, in charge of the budget, are responsible, each with regard to the execution of this Order, to be published in the Official Journal of the French Republic.
Done on 3 December 2013.
Jean-Marc Ayrault
By the Prime Minister:
Minister of Social Affairs
and Health,
Marisol Touraine
Minister of Economy and Finance,
Pierre Moscovici
Minister of Agriculture,
agri-food and forest,
Stéphane Le Foll
Minister Delegate
to the Minister of Economy and Finance,
Budget Officer
Bernard Cazeneuve
