Key Benefits:
President of the Republic,
On the report of the Prime Minister and the Minister for Foreign Affairs,
Considering the Constitution, in particular articles 52 to 55;
Vu la Act No. 2013-582 of 4 July 2013 authorizing the approval of the agreement between the Government of the French Republic, the Swiss Federal Council and the European Organization for Nuclear Research on the law applicable to companies involved in the field of the Organization in order to carry out services of a transnational nature, signed in Geneva on 18 October 2010;
Vu le Decree No. 53-192 of 14 March 1953 amended on the ratification and publication of international commitments undertaken by France;
Vu le Decree No. 69-311 of 2 April 1969 publishing the convention for the establishment of a European Nuclear Research Organization (CERN) and the financial protocol of 1 July 1953;
Vu le Decree No. 69-312 of 2 April 1969 publishing the convention between France and Switzerland on the extension in French territory of the field of the European Organization for Nuclear Research of 13 September 1965;
Vu le Decree No. 69-313 of 2 April 1969 issuing the agreement between France and the European Organization for Nuclear Research (CERN) concerning the legal status of the said Organization in the French territory of 13 September 1965;
Vu le Decree No. 72-729 of 1 August 1972 publishing the amendments of 14 December 1967 to the Convention for the Establishment of a European Organization for Nuclear Research (CERN), signed in Paris on 1 July 1953, and the financial protocol annexed to this Convention;
Vu le Decree No. 73-430 of 26 March 1973 issuing the agreement between the Government of the French Republic and the European Organization for Nuclear Research on the legal status of the said organization in France, signed at Meyrin, Geneva on 16 June 1972;
Vu le Decree No. 2008-1019 of 2 October 2008 publishing the agreement as an exchange of letters between the Government of the French Republic and the European Organization for Nuclear Research on the interpretation and application of the agreement of 16 June 1972 on the legal status of the said organization in France, signed in Geneva on 10 and 25 March 2008,
Decrete:
The agreement between the Government of the French Republic, the Swiss Federal Council and the European Organization for Nuclear Research on the law applicable to companies involved in the field of the Organisation in order to carry out services of a transnational character, signed in Geneva on 18 October 2010, will be published in the Official Journal of the French Republic.
The Prime Minister and the Minister for Foreign Affairs are responsible for the execution of this Order, which will be published in the Official Journal of the French Republic.
A C C O R D
ENTER THE GOVERNMENT OF THE FRENCH REPUBLIC, THE SWITZERLAND COUNCIL AND EUROPEAN ORGANIZATION FOR THE NUCLEAR RESEARCH ON THE RIGHT APPLICABLE TO ENTREPRESENTATIVES ON THE DOMAINE OF THE ENDED ORGANIZATION
The Government of the French Republic (hereinafter "the French Government")
The Swiss Federal Council,
and
The European Nuclear Research Organization (hereinafter "Organization")
the Parties,
Considering the Convention of 1 July 1953 for the establishment of a European Organization for Nuclear Research, as amended on 17 January 1971;
Considering that France and Switzerland are the two host States of the Organization;
Considering the Agreement of 11 June 1955 between the Swiss Federal Council and the Organization to determine the legal status of the Organization in Switzerland (hereinafter "the Headquarters Agreement");
Considering the Agreement of 13 September 1965, revised on 16 June 1972, between the French Government and the Organization relating to the legal status of the Organization in France (hereinafter "the Status Agreement");
Considering the Convention of 13 September 1965 between the French Government and the Swiss Federal Council on the extension in French territory of the field of the Organization (hereinafter "the Franco-Swiss Convention of 1965");
Considering that the principle of territoriality was retained in Article II of the Franco-Swiss Convention of 1965 in respect of applicable law on the field of the Organization;
Considering that the application of this principle to the activities of the companies involved in this field in order to carry out services of a transnational nature would result in the concurrent application of the rights of the two host States for the same contract;
Considering that the Organization has therefore called upon them to define regulations to determine, objectively and operationally, what right should be applicable to such enterprises;
Considering that, in response to the request of the Organization, the two host States decided to amend the Franco-Swiss Convention of 1965 and, for this purpose, adopted the Protocol of 18 October 2010 between the French Government and the Swiss Federal Council (hereinafter "the Franco-Swiss Protocol");
Considering that, following the Franco-Swiss Protocol, the 1965 Franco-Swiss Convention provides, by derogation from the principle of territoriality, that the law applicable to companies involved in the field of the Organization in order to carry out services of a transnational nature is determined first and foremost on the basis of the principle of the foreseeable preponderant share of services to be performed and brought to the knowledge of companies for each contract;
Considering finally that the modalities for the application of this principle should be determined by the Organization;
The following agreed:
Article 1
For the purposes of this Agreement:
(a) by "service benefits", all services, regardless of their duration, which are transnational in nature, i.e. carried out both in the area of the Organization located in French territory and in that located in Swiss territory;
Deliveries of goods that are not related to these benefits are not covered by this Agreement;
(b) by "enterprises", companies, regardless of their nationality, performing the services described in letter (a) within the framework of a contract with the Organization. The term "enterprises" refers to companies with a contract with the Organization and their potential subcontractors;
(c) by "applicable law", the right defined in Article 1 of Annex 2 of the Franco-Swiss Convention of 1965 and resulting, for each contract, from the application of the principle of the foreseeable share according to Article 2 of this Agreement.
Article 2
1. The Organization determines, for each contract, the location, on the French or Swiss part of its domain, on the predictable preponderant share of the services to be performed.
2. The location of this preponderant share is valued according to the following criteria:
(a) location of work stations;
(b) predictable number and duration of service delivery;
(c) number of facilities or components on which services are to be performed;
(d) number or size of the premises in/out of which services are to be performed;
(e) number of distribution points.
3. The Organization retains, for each contract, the criteria or criteria to be applied based on their relevance to determine the location of that predominant share, based on objective and quantifiable elements.
Article 3
1. The applicable law determined in accordance with this Agreement shall remain unchanged until the end of the contract, including renewals.
2. The Organization shall ensure that the actual location of the preponderant share of the services rendered under a contract is the location of the foreseeable preponderant share of the services to be performed, as determined in accordance with Article 2 of this Agreement.
3. The right applicable to the subcontracting enterprise of a service benefit contract between the Organization and a principal undertaking, in accordance with the above-mentioned rules, is that applicable to the principal undertaking. However, where the subcontractor carries out benefits only on a single part of the Organization's field, located in French or Swiss territory, the provisions of this Agreement shall not apply to it.
Article 4
1. The Organization shall inform the undertakings, at the time of the call for tenders, of the preponderant foreseeable share of the services to be performed and of the applicable law in such a way that they may take this element into account to bid. This information includes a reference to this Agreement and to the Franco-Swis Convention of 1965. It specifies the materials for which this right will apply to employees assigned to this activity in accordance with the provisions of Article 1, paragraph 1, of Annex 2 to the Franco-Swiss Convention of 1965.
2. If a change in the location of the foreseeable preponderant share of the services to be performed comes after the receipt of the offers and prior to the signing of the contract, the Organization makes a new call for tenders to respect the equal treatment between the bidders.
3. The Organization shall include appropriate provisions in contracts with companies requiring the companies to:
(a) notify their employees in writing of the applicable law in accordance with this Agreement and:
- the fact that the law applicable within the meaning of this Agreement is limited to the substances set out in Article 1, paragraph 1, of Annex 2 to the Franco-Swiss Convention of 1965;
∙ the fact that, in accordance with Article 1(3) of the Annex, the other substances remain governed by the principle of territoriality of the right to article II, paragraph 1, of the Franco-Swiss Convention of 1965;
- that the application of these rules does not impede the maintenance of their acquired rights at the time of the conclusion of the contract between the company and the Organization;
- if applicable, any modification of their employment contract that may result from the applicable law;
(b) notify in writing of any subcontractors of the applicable law in accordance with Article 3, paragraph 3, of this Agreement;
(c) provide adequate provisions in contracts with their prospective subcontractors requiring them to notify their employees in writing of the applicable law, under the conditions set out in letter (a) of this paragraph.
Article 5
1. The Organization shall inform the companies that, when the legislation of the host State in the territory of which is the main part of a contract with the Organization requires that foreign workers be granted a work authorization, the application must be made to the competent authorities of that host State.
2. The Organisation informs companies that the questions relating to the stay of employees remain governed by the principle of territoriality of the right to article II, paragraph 1, of the Franco-Swiss Convention of 1965.
Article 6
1. The Organization shall adopt appropriate measures to include in its internal regulations and to implement the principles and obligations set out in this Agreement.
2. The liability of the Organization shall not be invoked by the companies and employees concerned when, duly informed under Articles 4 and 5 of this Agreement, the undertakings would not have complied, both with respect to their employees and their potential subcontractors, with the obligations imposed under this Agreement in respect of applicable law.
Article 7
This Agreement shall apply to contracts for services of a transnational nature entered into by the Organization, whose tender is after the coming into force of the Organization.
Article 8
1. The competent authorities of the two host States shall ensure the effective implementation of this Agreement on the field of the Organization and in particular respect for the law applicable by the enterprises, as well as the possible sanction of any offence that may be found. Reciprocal information is provided between the Organization and the relevant authorities.
2. The Organization works with the two host states to facilitate this control.
3. The Organization works with the two host States to provide adequate information from social partners on the implementation of this Agreement.
Article 9
At the request of one of them, the Parties shall meet to assess the implementation of this Agreement and, if necessary, to resolve any disputes relating to the interpretation or application of this Agreement. Depending on the purpose of the meeting, each Party shall designate one or more person(s) to represent it and communicate its name(s) to the other two Parties.
Article 10
Any dispute concerning the interpretation or application of this Agreement, which could not be resolved in accordance with Article 9 of this Agreement, shall be subject to a sole arbitrator in accordance with the Optional Arbitration Rules of the Permanent Court of Arbitration for International Organizations and States.
Article 11
This Agreement may be amended at the request of one Party. In this event, the Parties agree on the appropriate amendments to this Agreement.
Article 12
This Agreement may be denounced by one of the Parties on a twelve-month notice. The denunciation is without effect on contracts entered into prior to the date on which the denunciation takes effect.
Article 13
Each Party shall notify the other two Parties of the formalities required by its domestic law for the entry into force of this Agreement. The latter shall take effect three months after the date of receipt of the last notification, but not earlier than the date of entry into force of the Franco-Swiss Protocol of 18 October 2010.
Done on 17 February 2014.
François Hollande
By the President of the Republic:
The Prime Minister,
Jean-Marc Ayrault
Minister of Foreign Affairs,
Laurent Fabius
Done in Geneva on 18 October 2010, in three copies, in French.
For the French Government:
Jean-Baptiste Mattei
Ambassador
For the Swiss Federal Council:
Valentin Zellweger
Ambassador
For the Organization:
Rolf-Dieter Heuer
Director-General
