Out with the old & in with the new

February 2018

First of all, I would like to wish all of you a very happy and prosperous 2018! French custom dictates that New Year’s wishes can be expressed until the end of January, so I have managed it a few hours before the deadline.

I was thinking of using the Beatles’ song “Yesterday” for the title of this month’s issue, but the melancholy lyrics are so much about the past that this song did not capture my message. For the first issue of 2018, this title seems too simplistic. New year’s resolutions are inspired by the feeling that something new and, of course, wonderful will happen during the next twelve months. What if we were to talk about what seems to be a radical change in attitudes towards sexual harassment? Or discuss the new French labor law? Or reflect on some significant changes in French taxation policies? I believe that these topics alone would legitimate my title.

We continue to see such situations evolving in both France and in the USA, and we are incapable of predicting what the next move will be, the next reaction of the populace. This is very unsettling for people who are used to predictable decisions. If there is one thing we have learned in 2017, it is that the “old” is fading fast and 2018 will see a lot of new things emerging, both good and bad. I continue to find it fascinating that the president of France is as unpredictable as his American counterpart, and that only one of them has been considered by some to be capricious. The two presidents resemble each other in their determination to implement their electoral promises now that they are in office. One could object that their promises were not of the same nature and would not have the same consequences, and this is absolutely true, but it is a definitive change to have presidents who are determined to have their pledges turned into legislation. So we are in with the new; this is certain and for many it means riding on a rollercoaster, an activity that very few of us enjoy. As for France, which I know better than the USA, there is an obvious need for a lot of radical changes. I just hope that France as a nation will benefit from the freight train of sweeping change and that not too many people will be led astray while this is happening. The new legislation that brings improvements should benefit everybody.

PROUST’s CONTRE SAINTE-BEUVE IN THE AGE OF HARVEY WEINSTEIN ?
Contre Sainte-Beuve (“Against Sainte Beuve”) is an unfinished collection of essays by Marcel Proust. Written between 1895 and 1900, it was discovered among Proust's papers after his death and published posthumously in 1954. Three of the essays take issue with the body of work of the 19th century French literary critic Charles Augustin Sainte-Beuve.

Proust is by far my favorite author; he stands apart from the rest. He is too often known only as an author whose sentences typically cover several pages of a book. Reducing him to his exceptional grammar skills is comparable to demoting him to the status of a well-trained monkey doing impressive tricks.

After recent events in France and the USA, I thought of the issues involved through the lens of Contre Sainte-Beuve. People unfamiliar with this 19th century debate might be confused by my choice.

Briefly, Sainte-Beuve believed that art, especially literature, was best understood when the reader knew the author’s life and intentions so as to put the work in context. Proust feels that literature, and art in general, is best appreciated on its own and that information related to the author distracts from or distorts the work’s message. While he does not discourage learning about the artist, and admits some benefits of doing so, in his view this makes the reader start becoming a critic, thus changing the focus.

The French poets Arthur Rimbaud and Paul Verlaine have been studied in French secondary schools for decades and are considered the major poets of their generation. Rimbaud (1854-1891) influenced the modernist movement in literature and art, prefiguring surrealism. An excellent student, he started writing very young but left school as a teen and ran away from home. He completed the bulk of his literary output in late adolescence and early adulthood, then stopped writing at age 21. He and Verlaine had a sometime violent love affair, which lasted nearly two years. In later years, Rimbaud traveled as a merchant before dying of cancer at age 37.

Verlaine (1844-1896) was associated with the Decadent movement and is considered one of the greatest exponents of fin de siècle French poetry. After starting a correspondence with Rimbaud, he lost interest in his wife, Mathilde, effectively abandoning her and their son for the younger poet. Their stormy affair culminated in Brussels in July 1873 when, in a drunken rage, Verlaine shot at Rimbaud, wounding him in the left wrist, although not seriously. As a result, Verlaine was imprisoned for two years in Mons, Belgium.

Over a century later I have yet to meet a French school teacher who explains the personal life of these men when their poems are being studied. My question is, can the revered artist and complete scumbag coexist in the same person? Verlaine, for example, is a revered poet who was also a criminal who served two years in a Belgian jail. I believe he illustrates quite well that such coexistence is entirely possible.

So where does this take us regarding the current wave of denouncement of sexual misconduct by men? My initial reaction is to look at the gravity of the misconduct, as criminal law distinguishes between misdemeanors and felonies. Then the criminal justice system should do its work. These men are stepping down or being fired from their jobs because of public pressure, because their positions are incompatible with such misconduct. That is one side of the issue. The public eye and the media should be addressing the issue differently depending on the nature of the alleged misconduct. Some of the accused are facing or will face criminal charges, others not. In France as well as the USA, some had or continue to have prominent careers as artists but could end up spending time in jail.

On both sides of the Atlantic, living and dead artists are being described as despicable people – recent cases in the news, for instance, range from Woody Allen to the anti-Semitic 20th century poet Louis-Ferdinand Céline, and several other cases are likely to arise in the weeks and months to come. In many ways, it is an excellent development and people should know of the criminal activities. But I would prefer that the focus stay on the criminal aspect rather than tainting such men’s artistic output.

Hitler had a short-lived career as a painter, but his art is all forgotten. History remembers him as the Nazi leader of Germany in WWII. History is very good at discerning the most important thing to remember about a person.

AARO RECORDED MY 2 HOUR PRESENTATION ON DECEMBER 18

Here is AARO’s introduction to the video:

Coping with French Administration
It is rare that AARO has a presentation about immigration to a country, but since so many AARO members live in France, we made an exception. Jean Taquet and his wife, an American, are AARO members. He studied law in France and then lived in the United States for many years, becoming an associate of the Delaware Bar Association. Upon returning to France, through his contacts at the American Church, he became an expert on immigration to France. He was also a regular contributor to the now defunct Paris Free Voice.

French Logic
Jean started the talk by telling the audience that France is logical. This got a good chuckle, but he continued to explain exactly how that logic works. It starts with the French Revolution and having to deal with the old elite (aristocrats) and establishing a fair system for all to be equal under the law. This was achieved with the Napoleonic Civil Code. The way that France can maintain its republic is by treating all equally and that means through identity, not aristocratic rank. Identity is established by name, date and place of birth, domicile, and profession. Your name, your birth certificate, and proof of where you live and what you do. (Reporter’s note: In France, the extrait d’état civil, which is the birth certificate document, contains more than just your birth information, which is why the administration frequently wants to see a recent one.) That is the logic behind the constant request for documents.

The video is accessible on the AARO website at: https://aaro.org/events/event-reports/641-coping-with-french-administration

I would like to thank AARO for the opportunity; I really enjoy giving this kind of presentation, trying to liven up topics that by definition might seem quite boring.

FRANCE IS CHANGING ITS POSITION ON OVERSTAYING WITHOUT IMMIGRATION STATUS
For the first time, a client was nearly fined for overstaying the visa waiver program after being stopped by French police at the airport. The risk is still quite low; the fact that the person is not American may have made a difference. This is their account of the incident.

“When I left Paris at the immigration at the airport they noticed I entered in September. He was gonna charge me 180 euros but not my son, and then he said, ‘This time is fine, you don’t have to pay, but you can’t enter Europe for 6 months unless you get a visa.’ Then I explained and showed him my appointment at the consulate that I was going to apply for the visa to stay longer in France. He didn’t question the fact that I stayed over 6 months in a year but that I stayed 113 days instead of 90. I said we traveled around Europe during this time.”

This is a warning signal that should be taken very seriously.

THE TAXE D’HABITATION IS FADING OUT QUICKLY FROM JANUARY 2018
Lower-income people are to be exempted from paying the taxe d’habitation under the new French tax law, fulfilling a campaign promise of President Macron. The estimate is that about 80% of households will not pay it by the 2021 fall when it is normally due.

Many question what will replace it, as it is the main local tax that cities and departments count on to balance their budgets.

The tax authorities have set up a simulation page to let people see if they will be affected by this radical change: http://www.impots.gouv.fr/portail

SELF-EMPLOYMENT IN FRANCE AND THE NEW LABOR LAW
The question of labor law in France is currently a very political one. Several French leaders have fought the new legislation because of its decrease in the protection afforded to French workers. Even without taking a political position, it is possible to witness the rapid evolution of the French labor market.

I want to stay away from this debate, as I feel totally incompetent as a grammarian, whether in French or in English. I would just point out that English as it is spoken all over the world stigmatizes gender differences a lot less. And yet Anglophone countries are facing sexual harassment issues as much as France, and many other countries, for that matter.

For about 80 years the trend was always to protect French employees so they were secure in their jobs, with this stability allowing people to make long-term plans. The banking industry adapted to the situation as well, enjoying a financially stable client base. Similarly, landlords were supposed to be reassured by the stability of their renters.

The recent financial crises badly disturbed this picture, and for years now a high rate of unemployment has indicated that not everybody was enjoying the same security. The resulting labor market rigidity led to a significant increase in the volume of temp work, although the French administration and courts could, and often did, rule that several temp contracts that amounted to missions for the same job with the same company was in effect a traditional French labor contract. Moreover, even temp workers are employees, and therefore benefit from generous unemployment payments and cost a lot of money in social charges.

Former President Sarkozy tried to deliver on his main presidential campaign promise, “travailler plus pour gagner plus” (work more to earn more). But he failed to significantly change the legislation limiting the workweek to 35 hours and the overall amount one can work, in one or more jobs, to 48 hours a week.

However, there was never a limit to the number of hours a self-employed person could work. Hence, Sarkozy created a simple fiscal status that would allow people to work legally on the side instead of taking a second job, as is common in the USA. The loi de modernisation de l’économie, passed in August 2008 and in effect as of January 1, 2009, created the auto-entrepreneur status. It was intended for side jobs, but very quickly many unemployed people signed up for it as a way to get some work and be active again. As recently as 30 years ago, working as an independent and running your own business was frowned on. People who made this choice were seen as either too incompetent to get a normal job or crooks using the status to steal money from clients and cheat on taxes.

One very visible evolution in the labor market is that this stigma is almost completely gone. Today in many parts of the country, there is excitement about creating your own business, and some French people now admire those who do so. A significant portion of the French population now has this status. In 2016, 331,500 people signed on to be auto-entrepreneurs, an increase of 3.3% from 2015. That same year, 261,000 signed off, for a net total of 70,500 auto-entrepreneurs in 2016.

So many people holding this status has shifted the way employers view the situation. They no longer need to hire, and can have a labor force with no strings attached. Many employers dismissed their salaried employees so they could get auto-entrepreneurs to do their jobs. The English teaching industry in France is now dominated by this status. Even nannies and cleaning ladies increasingly have it.

The latest labor laws, passed on September 23, 2017, can only be understood with this background. The idea is that if French workers are less protected, employers will choose an in-house labor force over subcontracting. Among the many areas the new law covers are that dismissal is less difficult and severance pay less onerous, there is more freedom to reach agreement within the company, and working remotely is better defined. Clearly, for the first time in about 80 years (aside from WWII), a law has been passed that deregulates French worker protection. A few years ago, it would have led to a general strike, France would have shut down for days and the government would then probably have resigned. This is one way to see the sweeping effect of the auto-entrepreneur status. Of course, it is not the only reason; most people credit President Macron with being an excellent politician, able to pass laws the French would ordinarily have a great deal of trouble accepting.

For more info (in French), see http://www.lemonde.fr/idees/article/2017/12/21/bienvenue-dans-la-societe-free-lance_5232996_3232.html

Best regards,

WHAT RIGHT TO WORK DO FOREIGN STUDENTS HAVE IN FRANCE?

QUESTION

I am an American on a student visa, and will be teaching English on the side. My student visa states “authorized to work limited to 60% durée légale”. I have been offered a teaching gig one day a week for three hours. My visa is to be renewed in a couple of months. My employer has strongly recommended that I then change my status to auto-entrepreneur so I may bill her with an invoice as all her other staff do. I would also be able to take on more teaching work. Everything I have read suggests that I should stick with the student visa, that auto-entrepreneur should be the last resort. What are your thoughts or recommendations?

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ANSWER

You are absolutely right. I would like to add that two things are critical here:

1. Teaching in front of a classroom is by legal definition an employee position. Regardless of the arrangement between the parties, should the French administration conduct an audit, it would automatically define the relationship as employer-employee.

2. The student titre de séjour that authorizes work limited to 60% of the legal duration is strictly for an employee position.

I can only assume that you continue to be a full-time student and therefore want to renew the student titre de séjour.

In the situation your employer proposes, both you and she would be acting illegally. If the school were caught, it would cost them a huge amount in back taxes, penalties and interest. If you were invoicing them, you would have to pay your own social charges, unlike with the employee position. Unless your billing vastly exceeded your employee salary, you would be earning less and your employer would get more money from your work. Obtaining a carte de séjour with the legal status of profession libérale and the fiscal status ofauto-entrepreneur is very difficult. Should you eventually wish to make a career as an independent teacher, you would be much, MUCH better off choosing profession libérale with the classic micro BNC fiscal status: the carte de séjour is much easier to get and the chance of being audited during the first years by the administration close to zero.

With her proposal, in other words, all the benefits are for her and none are for you. Worst of all, if there were an audit and you were declared an employee, you would not be able to get an employee carte de séjour because there are way too many English teachers in France (many of them British people who, for now, need no immigration status).

Although the legal background is complex, keep this basic rule in mind: If you have just one “client” you are not self-employed; you are in effect an employee. To be truly self-employed as a teacher, you would go to students’ home for private lessons and/or to people’s workplace for personal or group lessons, for example, and you would have different curricula and prices depending on the situation. With that profile, you would have nothing to fear.

If short, between the two types of immigration status you mention, the student status is absolutely the better choice.

Here is the big picture concerning the range of choices you may have:

1. YOU WISH TO REMAIN A STUDENT BECAUSE THAT IS WHY YOU CAME HERE AND YOU HAVE NOT FINISHED YOUR STUDIES
If you wish to work, you must do so as a salaried employee. You can find teaching positions as an employee or do private tutoring that is paid with the Chèque Emploi Service, which gives you employee status. You can even get consulting jobs using portage salarial, which also makes you an employee. Thus, for all likely scenarios, there is a solution that would let you remain an employee.

2. YOU ARE CONSIDERING CHANGING YOUR IMMIGRATION STATUS SOONER RATHER THAN LATER BUT NOT IMMEDIATELY
Here you have a very broad choice. There are six mentions (categories) of carte de séjour – i.e. six types of immigration status:

  • Visiteur
  • Salari
  • Étudiant
  • Vie privée et familiale
  • Commerçant et artisan 
  • Passeport talent

Each has several sub-categories. For example, there are 10 types of passeport talent, while vie privée has more than 20, visiteur includes self-employed consultants, and so on.I add this because you need the right to work in France immediately as i) a salaried employee, ii) a self-employed profession libérale, artisan or retailer; or iii) as the head of your own incorporated business. You would have about a year to act, so you are better off first defining your project, with possibly a Plan A and then Plan B if needed. Only then would you look at which carte de séjour and which sub-category best fit your plans.

3. YOU NEED TO CHANGE YOUR STATUS NOW
In this case, the most efficient option, assuming you need to teach English to make a living, would be to ask for profession libérale with the classic micro BNC fiscal status.

WHEN THE LANDLORD GIVES NOTICE FOR THE WRONG REASON
QUESTION

I have rented an apartment for 25 years, and today I received a letter from the owner telling me I need to move out. The owner states that she intends to lodge her granddaughter and her partner in this apartment. I am 75, retired and live on a small, fixed pension that is too low to be taxable.

All this has come about because I asked the owner not to increase the rent over last year’s since I was already paying 50% of my income in rent, charges and apartment tax. Taking more money from those of modest means so that those who are doing well can do better doesn't seem fair or logical.

  • 1) Which family members does the law allow owners to replace tenants with?
  • 2) What is the maximum allowable annual rent increase? My apartment owner says it is 2%.
  • 3) Is the maximum increase retroactive and cumulative? i.e. if there was no rent increase last year, can the owner charge a 4% increase this year?
  • 4) Is non-payment of a rent increase grounds for eviction?
  • 5) Do retired seniors have any special rights to stay in their rental apartments? (Or which administration branch should I contact for this information?)
  • 6) Can the notice be given by email?
  • 7) Can she propose a smaller apartment in the same building?

Do I have any recourse in this matter?

UP

ANSWER

My immediate reaction is to think she is adding the rent issue in there to make you feel thankful towards her and therefore accede to her request to move out. Nevertheless, French law is very clear that a tenant can only be asked to leave if the apartment is to be inhabited by:.

  • the owner
  • the owner’s spouse or partner in a PACS
  • someone the owner has lived together for more than a year as a romantic partner
  • the owner’s parents
  • the owner’s children
  • the parents or children of the owner’s spouse, PACS partner or life partner as defined above.

Grandchild is not on the list, so the owner’s request is not legal.

The official procedure for giving notice to a tenant is simple.
1. The owner sends the tenant a registered letter or a bailiff’s letter giving the date by, which the premises must be vacated.

2. The date to vacate is at least six months prior to the anniversary date of the lease.

As you have only received an email, you have not yet been properly notified. So for now you do nothing. When you get proper notification, send her a registered letter stating that her request is illegal and you refuse to comply. As long as you are in residence, she cannot simply go in and take over the place. She could go to court to request an eviction notice that can be enforced by the police. But a court would rule that her action is illegal. Finally, if she served you notice less than six months before the anniversary date of the lease, she would have to wait three years before any further attempt, assuming she is a private landlady and not a professional. This is a technical reason to declare the notice null and void, but it works.

The fact that she is offering you another apartment – smaller and therefore, presumably, cheaper – is an interesting twist. In court, the owner’s side could argue that it is in your best interest to move, and the judge might be incline to agree. But you can argue that you would incur damage by moving (even if the moving costs would not be significant), that you need your current amount of space and a smaller apartment is not suitable. Once you explain this clearly, it is unlikely that her offer will be endorsed by the court.

If you do not want to move, you need to fully accept that all provisions of the lease can be implemented, including a rent increase. Rent increases are strictly regulated. The allowable rent increase ratio, issued by INSEE, is the indice de reference des loyers. The owner cannot exceed this rate. The rent can only be increased on the lease anniversary date. If she does not do it one year, she cannot make up for it the following year: when the new ratio is published, it is the maximum rate of increase for that year. It may be 2%, or it may be more, or less; the owner does not decide.

There is indeed special protection for retired people. The ALUR law of March 24, 2014, states a tenant who is older than 65 (formerly 70) must be offered another apartment for the notice to be valid. This is why she should offer you another apartment ideally in the same building.

My advice is to stand firm on your legal rights. You may feel she was nice to you last year and agreed not to increase the rent, but that does not justify her forcing you out of your apartment illegally.

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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.
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