December 2011

REASONABLE EXPECTATIONS

ON CHRISTMAS EVE?

 

 

As children we go to bed on Christmas Eve with wild hopes, and are kept awake for a long time with the expectation of the gifts waiting for us.

In spite of the continuation of bad news regarding foreigners in France,
I will start by wishing all of you


A MERRY CHRISTMAS AND A HAPPY NEW YEAR.


These recent weeks and months have not brought good news to people on either side of the Atlantic Ocean. The crisis cuts across the continent; it seems to play with countries as though they were a deck of cards. At the same time, 2012 is a presidential election year for both countries; it is now impossible to ignore this fact.

 

 

DOES IT TAKE A FRENCH Ph. D. TO BECOME FRENCH?
I have been addressing the question of the issuance of the carte de séjour, which grants the right to a foreigner to stay and often to work in France. My experience is that all current requests are reviewed with more stringent requirements and therefore files submitted must be excellent to have a chance to be accepted without discussions and a second appointment. I do not help many people with requests for French nationality mainly because there are a lot fewer of them. Through the speeches given by President Sarkozy as well as the Minister of the Interior, Mr. Claude Guéant, it is clear the conditions are going to become a lot harsher. He recently stated: "Ceux qui sont autorisés à s'installer durablement dans notre pays, jusqu'à demander la naturalisation doivent viser l'assimilation. Ce mot n'en n'ayons pas peur." I would translate this statement this way:
"Those who are entitled to a permanent stay in our country to the point that they ask to naturalized must aspire to be assimilated. We must not be afraid of this word."

A drastic change in the current law (documented by statutory regulations called "décrets") includes the requirement of a much higher level of French than that required in the past. Applicants now must be as fluent in French as those entering French high school; they must additionally have an equivalent level of knowledge of French history. These last requirements will be implemented in January 2012 and will exist for both procedures, that of naturalization by request and that of naturalization through marriage. Adding this kind of requirement to the latter procedure is very surprising since the underlying philosophy was that the foreign spouse would sooner or later be integrated through the marriage and be exposed to the "real France" through the French spouse. It was assumed that the foreigner would in this way be quickly immersed in the French language as well as the culture. There was no need to verify their degree of integration.

I admit that the title of this section is quite provocative, but the "décret" states that the applicant will ideally be able to present a high school, university, or similar diploma. I admit that a Ph.D. is not required but in reality the vast majority of foreigners who ask for French nationality have not gone to school in France. It is one thing to take courses at the Alliance Française or an equivalent school, but it is another thing to have a diploma that will favorably impress the civil servant and give the foreigner the level needed to answer with assurance the questions about French heritage. Keep in mind that this evaluation of the level of French has existed for a long time. So it is clear that the government wants the requirement to be much higher, otherwise, it would have been easy just to be more demanding with the existing set-up.

The bottom line is that this is going to be a significant hurdle since the government controls both the curriculum and the evaluation; it clearly has a political agenda here.

The official text states: "ces derniers doivent justifier de leur niveau de langue par la production d'un diplôme ou d'une attestation délivrée par un organisme reconnu par l'Etat ou par un prestataire agrée."
I would translate this statement this way:
"The applicants must prove their level in French by showing a diploma issued from the public education system or from an approved private school."

A CFDT union representative working in the Parisian office of the division of naturalization said: "Avant, sur 70 000 demandes, nous en acceptions 70 %. Désormais, nous en rejetons 60 %."
I would translate this statement this way:
"Before, there were 70,000 applications and 70% of them were approved. Now we refuse 60%."

The general message is that applicants must have a perfect record in all aspects of their life. Having been an illegal immigrant in France, even for a little while, would be reason enough for the application to be denied. The same thing could be true for people who have been late paying any kind of taxes or have been ticketed for speeding or parking offenses. Since the French administration is looking for proof of a stable life, changing jobs or moving house too often may also be considered good reasons for denying the request. Furthermore, as there are no written rules on such matters, there is no way to measure how many tickets or job changes are too many. Such decisions will be made case by case, so it will be very hard to develop guidelines.

When I have had clients who want to be naturalized, I have always explained to them that while the USA just asks for a pledge of allegiance, France wants proof of complete allegiance, even though there is nothing to this effect on the list of documents one has to submit. But the new regulations have changed that, and make it very clear: as of January 1st 2012, applicants will have to sign a charter called the Charte des Droits et Devoirs (charter of rights and duties), which says of French citizenship: "c'est une décision qui vous engage et, au-delà de vous, engage vos descendants"
I would translate this statement this way:
("this decision is a commitment by you and, beyond you, your descendants").

It is hard to know if this is a last-minute change in an effort to influence part of the French electorate before the coming election, or a deeper trend that will be supported by whichever party ends up in power. But it has been clear for about a year now that the current president had already started his re-election campaign, even though he denied it every time he was asked the question. It is also pretty clear that using foreigners as a scapegoat works for a significant portion of the population. The most prominent extreme-right candidate in France, Marine LePen, is credited in polls with having the approval of between 17% and 21% of voters, which is significant. Knowing that Mr. Sarkozy only has about a five-point lead, with 24%, and that his current opponent, François Hollande, is polling at more than ten points ahead of him, it is easy to imagine how tempting it must have been to try to swing some of those far right voters to his side.

 

 

FOR ONCE A FRENCH NO ACTUALLY MEANS NO
In the November issue of my column, I titled one section "EMPLOYEE STATUS HAS BECOME NEARLY UNOBTAINABLE" and went on to explain that civil servants in the office of foreign labor, Main d'Oeuvre Etrangère (MOE), part of the Direction Régionale des Entreprises, de la Concurrence, de la Consommation, du Travail et de l'Emploi (DIRECCTE), had been told to veto all requests sent to them.

I noted that even the best graduates of foreign origin were encountering this problem. Now a MOE employee has sent me confirmation that even for these graduates there will be no exceptions, despite outcries by the heads of prestigious universities and schools. I mentioned in November that the interior minister, Mr. Guéant, had agreed to negotiate with the higher education minister, Laurent Wauquiez, to see whether the new rule could be modified for some graduates. The negotiations ended on November 15th, nothing has changed.

The MOE has had the right to say NO for years and has been using it a lot. So the key difference is that earlier there was a fair chance of getting a "yes" when the request complied with some requirements. Some of the most common reasons for waivers:

  • 1 – When the monthly gross salary reached 4,000 euros or more. The logic here was that the French employee who was paid that much could defend him/herself against foreign competition, and that foreigners must have some solid skills to be paid that much and therefore they would be useful to France.
  • 2 – The foreigner owned shares in the corporation where he/she was going to work - in other words, the job did not represent the usual employee relationship.

Outside of these provisions for mainstream employee positions, the assumption was that the request would be vetoed, so the file had to contain documentation proving that the use of the veto based on the unemployment situation was inappropriate in a given case. This kind of file was prepared on a case-by-case basis, with everything being closely related to the position - the skills of the foreigner, the employer's special needs.

Here is an exact quote from the message I received: "La recherche d'emploi reste donc de vigueur ... Il n'y a aucune faveur officielle à ce jour." ("The search related to the position still applies ...Today, there are no official favorable situations.)

The first sentence may sound cryptic until you relate it to the grounds for the veto, which is the rate of unemployment, and then it makes sense: all requests are being viewed in regards to the situation of employment in the relevant field, and since there is unemployment in nearly all fields, the veto is applied across the entire spectrum.

Since I started this column in early 1984, I have always explained that a normal initial answer in France is NO but that it does not really mean "NO," that one should test it and see what lies behind, and find out if there is way to get a "YES". With the préfecture this has always been a dangerous game to play, since you have in effect one chance and therefore no room for testing. In this specific instance, for now, there is no reason to even try hoping for a miracle to happen.

 

 

EXPLAINING FRANCE TO THE FRENCH!
I have always tried, in a consistent and determined way, to explain how "France works" to foreigners, and I feel good when I see that I have succeeded. I received the following message from a Frenchman who moved to the USA many years ago; I would have thought that this is exactly the kind of person who does not need to read my column, that there is nothing for them in there, but this is what he says:

"Bonjour Jean,

I learn more about France from you than all the books on the subject combined.

Thank you for explaining to a Frenchman what it means to be French and all the fine nuances involved. (well the French would call me a francophone even if I was born in Paris of French parents)

Love your newsletters. Keep up the great work.

Merci."

I would never have dared imagine that my column could do this. It feels quite inappropriate, that is for sure.

This statement raises a much bigger and very complex issue: how one should handle moving back to one's "home country" after decades of living abroad. Then, yes, there is a serious need to get to know the home country again. The worst is that, if you were born there, they give you no leniency, no chance to learn by trial and error - after all, you should know the rules of your own country. You do not get the benefits that come with a foreign accent and the foreign clumsiness that so often help to smooth over the consequences of the many faux pas that foreigners make!

Expressing this type of distress has been taboo until recently. Ever since I moved back to France at the end of 1989, I have been seen as an American by the French. I have just gotten used to it.

 

 

OFFICE CLOSED FOR CHRISTMAS
I will celebrate Christmas in the USA and therefore the office will close on Friday, December 16th, and reopen on Wednesday, January 3rd. As always, I will be reachable by email for emergencies and important matters. The service I offer of receiving mail for clients will continue while the office is closed.

 

Best regards,

 

Jean TaquetJean

 

Q & A

THE NEW PROCEDURE FOR DISMISSAL "RUPTURE CONVENTIONNELLE"

QUESTION
I am American and I have been working for French companies for the last ten years. I want to negotiate a "rupture conventionnelle" dismissal and after that I would like to start my own business. My employer does not see the need to dismiss me and is only willing to accept my resignation. How can I force them to dismiss me?

ANSWER
There seems to be a huge misunderstanding here of what this new procedure is about, and therefore of French labor law. Common sense states that when you do not like your job anymore, you do not "force" your employer to dismiss you, you quit the job.

This is true in France, in the USA and probably all over the world. So, in my view, the question as you wrote it simply makes no sense.

However, there is a need to address what this new procedure is about. The term could be translated as "mutually agreed severance."

Previously, there were only two procedures for dismissing an employee. One required the employee to be guilty of having done something either illegal or against the interests of the employer. The other required a proven economic reason and generally entailed shutting down the operation, downsizing or completely reorganizing.

To understand the main motivation for passing the law creating this new procedure, one needs to know something about French labor law. When you look at those reasons for dismissal in France, it is clear that the most essential element is that the employer absolutely had to prove, in a rock solid way, that there were grounds for dismissal. In the first procedure mentioned above, the employee committed acts that contravened either the regulations of the employer or French law. Such a dismissal is in effect a punishment that has nothing to do with whether the employee had expertise, was competent, produced as expected or otherwise met the requirements of the job. Consequently, there could exist many situations where an employer was not satisfied with an employee's work but had no grounds for dismissal.

Since monitoring of individual performance is now a standard procedure in France, such situations are increasingly common and this evaluation is a novelty in France. Now the employer has the means of documenting employees' performance with the annual review of the past year's performance against the goals established for the year.

Therefore, there was a need to change French law to add something to the existing two procedures. The defining characteristic of the new procedure is that there is no need to prove that either the employee is guilty of something or that that the company must terminate the position because it is restructuring its operations. In other words, the grounds for dismissal are wide open. To make it impossible to abuse this procedure, it includes getting approval from the Direction Départmentale du Travail, de l'Emploi et de la Formation Professionale to ensure that the agreement is fair and in accordance with the rationale for this procedure. The DDTEFP gets a form, filled out by both parties, that gives only a small amount of information about the case so that confidentiality is respected; the control is limited to a couple of reasons. In reality, the amount of severance pay and other compensation gives an indication of who was in a position to twist the other party's arm.

I would like to describe two very different and extreme situations where this procedure would be advisable.

SCENARIO ONE - THE EMPLOYEE IS GROSSLY AT FAULT
The employer has found out that the employee has been stealing large amounts of money from the company and has falsified the accounting documents to hide it. Usually this would be an obvious case of for-fault dismissal, unless the employee could file details of the situation in court or just have the information leak to the general public; if the employer is a bank, stockbroker, C.P.A. or the like, the damage to its reputation would be so enormous that it would mean in effect losing huge amounts of money twice. To seal the deal in such a way that the information never leaks, the employer can offer this new form of dismissal, stating that no criminal charges will be brought and that the employee will receive normal dismissal with normal benefits and severance pay, in exchange for a binding agreement that the incident will stay confidential forever. This way the employer is buying protection for its reputation.

SCENARIO TWO - THE EMPLOYER IS GROSSLY AT FAULT
The employee has found out that the employer has done something completely illegal and can prove it. Ordinarily such information should be reported to the authorities, maybe the police, so they can start an investigation. But doing so would mean in effect losing the job without any extra benefits. With the new procedure, the employee has the possibility of getting a large amount of money. The employee says to the employer, either you dismiss me with some extra compensation and severance pay, or I report you to the authorities. The deal could be sealed in such a way that the information never leaks as long as the employer offers this new form of dismissal. This way, once again, the employer is buying protection for its reputation.


These two scenarios clearly show that there is a need for leverage on the part of one side or the other. What you are missing, in your case, is any kind of leverage against your employer, who has no interest in going through a procedure that costs him money, since he would have to at least provide severance pay.

While the vast majority of cases are never as extreme as the scenarios above, dissatisfaction on the part of the employer could motivate dismissal under the new procedure. So maybe you should become a true nuisance to your employer, so that dismissal might be seen as the lesser of two evils. Always keep in mind that in this case it is not your dissatisfaction that counts, it is your employer's dissatisfaction.

Last but not least of the elements against you is the fact that, if you tell your employer you need to be dismissed so you can go into business for yourself, chances are you will be seen as competition and, in any case, as someone who is not passionate about their job. There is no legal issue here except for non-competition clauses, but this is an extra reason for your employer not to give you what you are asking for.


The new procedure can be described as follows.
The employer and employee reach agreement on all the financial information needed to fill out the form, and they sign a private agreement between them. They also sign the official form and send it to the DDTEFP, which evaluates the fairness and legality of the agreement (without being able to go very deep, since it is mainly the financial side that is analyzed). Once the deal is approved, the form is stamped and sent back to the parties. Then the official dismissal documents can be issued: the attestation ASSEDIC, attestation de travail and solde de tout compte. The first is for the unemployment agency, which calculates the amount and duration of unemployment benefits. The second is a statement that one was employed. The last is a receipt for the money paid to the employee, with the detail of the amounts and what they correspond to.

 

 

 

THE TAXE D'HABITATION QUESTIONNAIRE

QUESTION
I have been living in France for many years, staying single most of the time and always having my own place. So I have been paying the taxe d'habitation pretty much since I moved to France. I have been self-employed for a couple of years or so, and a few months ago I gave birth to a little boy.

The issue is that my partner is also a foreigner, who has lived in France for about as long as I have but has never been in the French system; he does not even have a carte de séjour. So now that I have moved to his place and he owns the apartment through an American corporation that does not even bear his name, the tax office is asking me where I live, with whom and so on.

Everybody here tells me to state that I am a single mom and never mention my partner's existence, while my American friends talk about perjury, lying to the tax office, all these awful things.

Should I answer this form? And what should I say?

ANSWER
Your question raises so many issues that I cannot address most of them. As I have stated elsewhere, you MUST ALWAYS fill out any form from the French tax office. Furthermore, keep in mind that in France the taxe d'habitation is closely connected to the income tax, which means all the information gathered will be added to the existing database fed by your years of declaring your income in France. So to me it is clear that you cannot lie on this form, since it is almost certain that the tax office will find out in no time. But there is a huge difference between outright lying and keeping back all the information you can, releasing just what has been asked.

In your situation, the form is pretty harmless except for a couple of questions that must be weighed with the utmost precaution. The first concerns the legal grounds for you to be in the apartment where you now live. The answer, in truth, is that you have no legal grounds: you have no lease and you are not the owner - you are the owner's guest. One solution would be to create a lease, with you paying a nominal rent. This is not a good solution, however. I cannot detail all the reasons but it would create many more problems than it solves. For one thing, your partner's corporation would have to declare the rental income to the French authorities. This is not exactly the best way to stay under the radar.

Now, if you state that you are a guest, the normal thing is to expect a special relationship that would explain such generosity. Unfortunately, if you supply the information that you live with this man and he is your child's father, the French fiscal authorities will realize that this is a family unit of three people and your partner will find himself caught, and will also have to declare his worldwide income to the French authorities.

Let's look at the situation from his angle. For decades the corporation has declared this apartment as a secondary residence, so people are supposed to be there for a short time, perhaps a few weeks at a time, totaling fewer than 183 days per calendar year for non-residents. In any case, his fiscal and primary residence is not in France.

If you go along with this statement, it means you have your primary residence in an apartment that some people use for short stays. There is a potential major problem, which is that in France a gift between people who are not related by blood or by romantic ties is taxed up to 60% from the first euro. But in this case, this is an American "gift" given by an American corporation that the French authorities have no jurisdiction over.

As you can see, if you walk a very very fine line, you can stay on the French side of the fence without dragging your partner in. So you could declare that you are a guest for the first question, and give the name of the corporation as the owner and user of the apartment for the second question, and see what happens.

Having momentarily settled that matter, you should maybe think about how the child support should be handled. In this case, it would be wise for your partner not to wire money to your French bank account. I would be interested in seeing how the request for your son's American passport will be handled, but maybe your partner's lack of French residency would not be a problem. Later on, your child should get the special minor French immigration documentation, which also requires the signature of both parents and disclosing their full identity to the French administration.

You have several sensitive issues to handle, so before you are faced with them, maybe you should prepare appropriate responses.




DISCLAIMER
Please forward this message to all those who would be interested in its contents. The information contained in this newsletter is intended only as general information. I strongly urge readers to seek professional guidance concerning the legal and tax matters mentioned. This newsletter is intended as a general guide and is not to be taken as professional advice.