The supervision of collaborative platforms, between new economy and “privatization” by social protection insurers
By Alexandra ZWANG SIARNOWSKI, Expert Bordeaux My Business Legal Information
With the rise of collaboration, models like Uber, Airbnb seem, at first glance, to make headlines and rewrite the French rules of labor law, tax law… A liberalisation of the economy for the benefit of individuals, who could finally emancipate themselves from anti-deceitless protectionist rules…
In reality, the rise of collaborative platforms, far from creating a “utopian lawless zone” driven by the love of one’s neighbour, not only do not change the current regulations, but have since this year been subject to strengthened obligations, especially in terms of information for their users.
The utopia of the law-free zone and the freedom of entrepreneurship “to the individual”
The utopia of the collaborative economy is to value sharing, exchange, social and solidarity economy for the benefit of all, without state constraint, in view of the supposed triviality of the activities concerned: DIY, baby sitting, gardening… but also training services (computer science…). The benefit is subject to remuneration, or to the “volunteer” exchange, outside the protective framework of associative life…
A turnover that would already represent 3.5 billion euros in France…
This is a significant windfall for the State, which intends to promote adequate integration into the current tax system. According to PWC, more than three hundred platforms in France are dedicated to the collaborative economy. A market that is expected to reach 83 billion euros in 2025…
Tax and social obligations
No revolution in social obligations
On the social level, despite the enthusiasm we know, the rules do not change. In the event of an individual’s recourse to a jobber for any mission, or the jobber in question acts in a professional capacity, with the status of self-employed, self-employed, micro-entrepreneur, entrepreneur… or, in the context of the collaborative economy, he can only assume the status of employee. The individual who uses him becomes an individual employer, as well as for the use of a maternal assistant for example (with obligations relating to Pajemploi).
In this case, it is bound by related declaratory obligations to the USSRAF.
He has two options: either, the benefit itself is eligible for the CESU – this is the case for so-called human services activities. with a simplified return and a 50% tax cut; or it is not, and therefore the obligations relating to the individual employer, detailed on the site, must be fulfilled. Net Individual.
In both cases, the employee, even a casual, enjoys complete social protection. Apart from this alternative, the individual employer incurs the offence of concealed labour.
Slight tax adjustments
With the exception of cost-sharing services, without remuneration, such as carpooling, the provision of services, even if carried out by a collaborative economy platform, is necessarily professional in nature. In this sense, either the service provider assumes the status of employee, or he must choose a professional plan, which differs according to the amount of annual income.
Below 33,200 euros for services, it is possible to opt for the micro-entrepreneur scheme (with affiliation and declaration on the website lautoentrepreneur.fr), or for the social system of the self-employed (with annual declaration on the website guichet-entreprise.fr). Beyond this threshold, affiliation with the social system of the self-employed is mandatory, and each year, profits must be reported on the net-entreprises.fr website.
It should be noted that from 1 January 2019, collaborative economy platforms will be obliged to report their users’ income.
Strengthening the information obligations of the collaborative platform
In a growing context of the development of collaborative economy platforms, such as a new “fashion”, Bordeaux is at the top of the list, among the top thirty cities in France. In this sense, many dedicated start-ups, such as the first platform dedicated to collaborative delivery, PostTrip, or Help and Home, a platform dedicated to private concierge services between individuals.
While their positioning as “neutral” intermediaries is of course sought by these platforms, they have been forced, since the beginning of 2017, to impose new obligations of information of their users. The decree No. 2017-126 of February 2, 2017, requiring them to remind their users, with each transaction, of the social and tax obligations they have. This obligation can be met, in particular, by the integration of referrals to the relevant sites of the tax administration and the social security agencies concerned (CGI, s. 242 bis and Appendix II, s. 171 AX, II).
Each year, in addition to the transmission to the tax authorities, the platforms will be required to provide each of their users with a summary of gross revenues, as well as the number of transactions made. Finally, each year, they will also have to have an independent third party certify their implementation of all the necessary provisions to meet all the obligations mentioned. This certificate will then have to be forwarded to the tax departments on which they depend.
It should be noted that the absence of production of the certificate will be punishable by a fine of 10,000 euros
The myth of “all-terrain” civil liability
What protection and responsibilities on both sides during these services? What risks are covered, and by whom… First of all, it should be remembered that, under no circumstances, the basic “privacy” civil liability is intended to cover the work carried out for remuneration, unless express and special clause in the contract – some insurances may include it, to be checked carefully.
Indeed, the principle of remuneration excludes the voluntary assistance agreement (Article 1135 and 1147 of the Civil Code). More often than not, in the event that this activity does not exceed the thresholds to receive the qualification of “professional”: in which case, a specific professional insurance will be required, de facto.
And for good reason, the most predictable social system in the collaborative economy is that of an employee… So Especially the damages suffered or borne by the “jobber” would be covered by the employer’s civil liability, again, to be checked on a case-by-case basis for the “individual employer” whether its RC private life insurance covers those contracts, for example related to the CESU.
The challenge for the platforms themselves will therefore be to find the additional insurer that will cover the risk, except that this coverage will not be able to free users from their respective obligations.
The challenge therefore lies in the ability to translate into an ultra simplified customer journey the tax and social obligations that it must fulfill in order to comply with the regulations in force by giving it the impression of this freeing of the rules….
In the end, who will decide the viability of the platform? Insurers, who guarantee or not the business model… somewhat substitute for legally expected social coverage, in form, if not in fact.
There is no doubt that the insurer in question will subordinate its coverage to the underwriting of the respective insurances on both sides, the payment by the parties in the presence of their tax and social obligations and, Especially, the acquittal by the collaborative platform in question of all its obligations, including information to its users.
This potentially restricts the scope of its coverage,and see the result of a liability of those platforms when any incident occurs…
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