TRAPPED

The image that comes to mind is that of a wild animal with one paw caught in a strong metal trap. There seems to be no way out, no last minute solution.

Often foreigners feel that they have been intentionally trapped, which I usually qualify as being taken advantage of. I do not dispute that this is too often the case, but it does not occur as frequently as these foreigners think.

Most of the time, if they understand French rules, if they know what is expected of them, and if they correctly discern the intentions of the French, foreigners can more easily differentiate between the difficulties created by crooks who take advantage of foreigners’ weaknesses, and the results of a succession of small errors that create major problems.

THE THREE-YEAR RULE OF LIVING TOGETHER WHEN MARRIED TO A FRENCH NATIONAL TO KEEP THE CARTE DE SEJOUR
Over seven years ago, a new regulation was passed making the legal assumption that if an international marriage (one French and one foreign spouse) did not last for at least three years, it was a fake marriage and the foreign spouse would automatically lose the right to live legally in France, even if he/she was qualified for other status.

As a recent case shows, Americans do not get preferential treatment on all issues. In some cases, like this one, the prefecture applies the law without much leniency. If the foreign spouse had legal residency in France before getting married, he/she can usually ask for a change of status if the marriage appears legitimate. But if the foreigner lacked French residency before the marriage and got his/her situation regularized that way, then the rule tends to be applied quite strictly.

The two essential conditions for regularization are:

1 – Have a legal marriage recorded with the proper French authority (i.e., if the wedding was performed outside of France, it complicates matters considerably); and

2 – Live together as a normal couple. There is plenty of room for interpretation here, but what the prefecture is looking for is a joint income tax declaration, a joint bank account, each person named as a dependant for health coverage, both names on all utility bills, and so on.

In addition, the French spouse must be present to submit the application. As a side issue, in my experience the French spouse often uses this requirement as a bargaining tool in a form of arm-twisting or blackmailing – and, interestingly enough, none of these cases involved fake marriages from what I could see.

It may still be worthwhile to try to persuade the prefecture that your case is different. Just be sure to prepare yourself for a difficult time at the prefecture and put together the best file possible. Also, note that the prefecture does not differentiate among the various scenarios that lead to separation, even when it comes to who left home or who is filing for divorce, and on what grounds. Many foreigners believe, quite wrongly, that if the French spouse runs away, files for divorce or is guilty of some wrongdoing, the provision does not apply to them.

The law only defines one reason for a waiver, and that is if the foreign spouse has left home because of documented physical violence. Still, although I have never had a client ask to benefit from this provision, I am quite sure that the prefecture expects full criminal documentation and not simply a statement from a doctor.

TWO WALK-THROUGHS PROTECT THE TENANT
Advertisement from Century 21 in France:

“REGLE D’OR Nº 8 – l’état des lieux devient plus simple pour tous.”
“Golden rule Nº 8 – The walk-through becomes simple for everybody.”

Century 21 now offers free advice and support to prepare the final walk-through when the tenant is ready to leave the apartment.

The legal nature of the initial walk-through is the same everywhere: it is the way liability is transferred from owner to tenant once the latter is ready to move in. The final walk-through does just the opposite, ending the tenant’s liability and giving the keys back to the landlord.

The main difference in France lies in the condition of the lodgings, combined with the fact that France has no legal concept of normal wear and tear.

Two recent cases reminded me how little foreigners understand the legal nature of both walk-throughs. I always explain that the way the initial walk-through is performed is critical to protecting the tenant’s interests. It describes the condition of the apartment at the time the tenant moves in. All damage of any kind that is visible when you move out, if it was not recorded as being there when you moved in, becomes your responsibility. This includes damage originating upstairs or next door. In France the tenant must hold rental insurance and is solely responsible for dealing with such matters with his/her insurance company. The landlord is has virtually no role at such times.

In most cases where the security deposit is not reimbursed in full, it is withheld legally, and there is no use trying to fight it by describing the initial condition as much worse than documented in the initial walk-through statement.

What very often happens is the new tenant is so excited to have found the “perfect place” that he/she does not pay much attention to small details such as holes, stains and scratches, so the walk-through is done very quickly and everything is described as either new or in perfect condition. Yet doing a walk-through correctly should take one to two hours unless the place is in excellent condition. If the tenant signs the document falsely describing the apartment as being in ideal condition, the signature means he/she agrees with the description. It is virtually impossible to go back later and explain that one signed without knowing what the document said. That is one of the worst arguments to use in a court of law.

Once the ink is dry on this document, called the état des lieux d’entrée, the trap is set and the landlord needs only to wait until the tenant moves out to cash in on the situation. The tenant must either improve the condition of the apartment so that it meets the description in the original document, or the cost of doing so is deducted from the security deposit.

If you fear that you are not capable of doing a proper état des lieux and the amount of the security deposit is significant, you might be better off asking a huissier – a French bailiff – to do the job. The landlord and tenant split this professional’s fee, and he or she will provide a neutral and complete description. The bailiff’s mission is to be the eyes and ears of the French state. The landlord cannot refuse this procedure or dispute your choice of huissier.

Another advantage of using a huissier is that it puts the landlord-tenant relationship on good footing. This is almost never a wholly amicable and trusting relationship, but at least the chance of the landlord trying to pull something on you is greatly reduced.

Finally, note that the law states that the lodging is assumed to be in perfect condition if no walk-through is done. Therefore, it is essential to have it done to get a copy of the document right away.

MyAmericanMarket.com
Anne-Claire Bocage, founder of MyAmericanMarket.com, an online grocery for hard-to-find American products in France, came to see me about nine months ago to ask if she could publish excerpts from my monthly column in the MyAM newsletter. This publication just keeps getting better and better. The most recent one, Nº 8, March 2010, included my essay on “THE STATUE OF LIBERTY, ELLIS ISLAND AND THE 21st CENTURY IMMIGRANT” and illustrated it in a very pertinent way.

It took me forever to agree to put the column in HTML format and give a title to each issue and section. I am not much into looks and graphic designing; I prefer words and sentences. So I always welcome the help of others. I wish Anne-Claire Bocage every success in her business. www.myamericanmarket.com/newsletter.html

Best regards,

Q & A

ASSOCIATION DE GESTION AGREEE

QUESTION
About 18 months ago I signed on to become a self-employed person in France, and since I was just transferring my business from the USA, I opted directly for the full registration. Everything took way too much time to get settled but now I have all my accounts straightened out and I carry my green Carte Vitale everywhere showing that I have French health coverage. While preparing my first income declaration with the French tax office, my French CPA asked me which association de gestion agréée I had chosen. I had never heard about this. Can you explain, especially regarding what benefit I will get from them since I already pay my CPA to close my books?



ANSWER
Your question addresses an issue that seems to be overlooked by many people and has very serious consequences. The bottom line is that if you are not registered with one of these organizations, you pay 25% more income tax. Some background is needed to understand how we ended up with this situation.

First, I want to reiterate that the French government, and especially the fiscal division, does not trust self-employed people and systematically assumes that they cheat by grossly underestimating their sales and profit. As I put it last month, “ the majority of the French see being self-employed or going into business for oneself as a curse or a last resort, and believe the only people who are really eager to do it are crooks, liars and cheaters.”

Many years ago the government decided to create non-profit organizations to serve as a sort of professional union for self-employed people and help them with the various declarations and payments they must make. The organizations quickly became popular, and entrepreneurs liked the support they provided. The tax office quickly saw the benefit, too, when they realized that declarations done with this kind of help were easier to handle and far more accurate. Without significant accounting expertise, it is hard to cook the books without showing some inconsistency, and even more difficult if there is a track record available going back some years. So the government started rewarding those who used the services of these organizations on their annual income declaration, giving them a 10% discount on the amount of income tax due. Over time, membership in such an organization gradually became mandatory, and what started as a discount for members ended up becoming a penalty for people who did not use their services, now 25%.

The logic behind this is typically French. By contrast, in the USA, people sometimes take the risk of filing their income tax declaration incorrectly, relying on the private sector to provide a solution if needed.

Obviously you should sign up with one of these organizations as quickly as possible, since the deadline for being covered for 2010 income is May 31st, which is coming soon. Once you have signed up, contact your tax inspector and explain your situation. On paper, no one can enroll in this program retroactively, but the inspectors have the power to approve your request, and if the request is properly presented you are running no risk and will not lose anything by asking.

One final comment: since using a CPA does not give you any credit and costs a lot more than annual membership in one of these non-profit organizations, you might want to look into the courses and other forms of help that the organization offers, and get as much training from them as you can. I would think this would be a very good investment of time and money. You might not be able to get rid of the CPA completely, especially if he also prepares the American tax declaration I assume you still need to do as an American citizen. But you will be a lot more autonomous and able to do a lot more by yourself, as long as your French is good enough.

FILING TO BENEFIT FROM THE SICK-LEAVE SUBSIDY

QUESTION
I have been working for my company for several years and I have never had a problem on the job. Now I am faced with a huge disciplinary problem simply because I was on sick leave for several months. I sent all the administrative forms back to my employer in due time, including all the arrêt de travail forms issued by the doctor. The HR department told me that they received everything but the employer refused to pay my salary during this time, arguing that the French government should pay it. I went to the CPAM where I am registered, and was told that they owed me nothing since they were never told I was on sick leave. I have the strong feeling that my employer is two-faced and I am being lied to.

Furthermore, my French colleagues have been stabbing me in the back since I returned to work, since they think I used the sick leave to keep my job through the last round of downsizing; they think I was faking the illness. As an American I have a strong work ethic and will drag myself out of bed to go to work if I can. This is turning into a horrendous nightmare. Can you explain to me what is going here?



ANSWER
To sum up your situation, I would use a quote from folksinger Greg Brown: “One wrong turn is all it takes and there ain’t many signs.”

To understand the situation in which you find yourself, you must understand both the analysis made by HR and the viewpoint of your colleagues. I need to explain them one at a time. There has been some serious cultural misunderstanding involved.

First, you sent the arrêt maladie to the wrong place. This is probably your only real mistake. The key authority in this matter is the French administration, not the employer. The original document goes to your Caisse Primaire d'Assurance Maladie (CPAM), which manages your health and disability coverage. After three days of sick leave, it is the CPAM, not your employer, that pays your salary. You send your employer the first copy of the form, but purely for information so that your absence is documented as being for a valid reason as defined by a trusted authority – a medical doctor. The last copy is for you, so that you have a record in case something goes wrong. But your CPAM never received the document, since you never sent it to them.

While your company could have forwarded the documents to your CPAM rather than just sitting on them, it is under no obligation to do so. Indeed, culturally speaking, it would be seen as odd for someone in HR to think of doing such a “nice thing.” There is probably not an ounce of meanness in this choice. The legal definition of “employee” in France is “subordinate.” The use of such a strong word says it all. The French employee does not take much initiative. In compensation for this aspect of French labor law, the law grants the employee strong job protection. An American employee working in HR would have put the form in the mail and contacted the sick employee to explain the mistake and warn about the consequences, but a French employee would not have this reflex.

In short, CPAM never received the documents because of your mistake. Now your problem is that you are not on good terms with your employer and therefore with HR, and they have all three copies. How can you ease the situation enough to get all the originals and send them to CPAM?

I cannot think of any easy way of doing so. Going through the legal channels would mean sending an official letter asking for the forms, with a copy of the same letter being sent by registered mail to the employer if the first letter gets no results. After that, assuming the registered letter has also failed to work, you would have to retain a lawyer and take the employer to court. In other words, this not the path to take if you want to keep your job.

Another solution would be to ask the doctor to give you a second original document. But I should think that a form dated several months after the illness would look very suspicious. While the doctor could back-date the document, he or she would probably risking losing his/her license if caught.

The other main aspect of the situation is where cultural misunderstanding comes most into play. Sick leave is often used in France as a weapon in a labor struggle with the employer. Taking a few days of arrêt maladie is a way to challenge the obligation to obey the employer and can help in getting the company to acknowledge a severe work issue, as it acts as a warning signal. Explaining it this way makes the doctor sound like an accomplice writing a fake sick leave, but the reality is more likely to be that something in the job is truly dysfunctional. If it goes on for weeks, months or even years, it can lead to a multitude of stress-related medical symptoms, which gives the doctor excellent reasons to issue a sick leave.

This is a loaded topic in France, and many foreigners have a hard time understanding why work-related stress is handled this way here. In the USA, the employee would probably either quit the job or threaten to quit in order to start some kind of arm wrestling match. The subordinate position of the French employee is linked with the way people are hired and dismissed, and with the way unemployment benefits are received and viewed. The upshot is that threatening to quit in France is an oddity and very rare. It can take months or even years, even in a good economic cycle, to find a job in France, and most people cannot survive three to six months without a secure income.

Another thing you need to realize is that a sick employee is harder to dismiss than a healthy one, even as part of a downsizing effort, so the conclusion that your colleagues drew about you is easy to understand. This aspect of your situation is so complex that it alone could be a topic for a long Q/A. To keep it short and simple, though, I will just say that there are several reasons why an employer would not dismiss an employee on sick leave as part of a licenciement économique. This, combined with the fact that sick leave is sometimes used by French employees as a kind of arm-twisting strategy, could give the impression that you planned your sick leave to avoid being dismissed. Normally nobody would think such a thing, but in your case it may have become common knowledge that CPAM has not paid your sick leave subsidy (les indemnities journalières) and that there are issues with your sick leave. That would open the door to all sorts of interpretations.

This is the explanation of your problem, but by no means the solution. To reiterate my analysis, I do not see any answer other than getting the original arrêts maladie to CPAM and having your situation regularized by the French administration.