The clause Molière, considered “illegal” by the government

An interministerial instruction dated 27 April called the prefects to judge the “illegal” clause Molière. It aims in particular to combat the work seconded by forcing the employees to speak French on the public sites.
Any use of the clause Molière must be treated as “illegal”, because it would oppose the eu directive on the posting of workers. This is the verdict posed by an interministerial instruction dated April 27, addressed to the prefects. It was signed by four ministers : Myriam El Khomri (Work), Michel Sapin (Economics), Mathias Fekl (Inside) and Jean-Michel Baylet (planning and Development). The realization of this circular had been announced last march.


This text precise and to the prefects of the legal framework to oppose to the territorial authorities whose actions “would tend to restrict, or even prohibit, the use of posted workers”.


As a reminder, the clause Molière in public procurement aims to make the French mandatory on construction sites, or to have recourse to an interpreter. As we know, the defenders of the clause Molière argue that it serves primarily to ensure the security of sites, greatly dependent on the fact that the companions understand each other by the use of a common language. Arguments to be scanned by the public authorities.


“Discrimination against workers from other member States”


In fact, according to the interministerial instruction, the clause Molière, “cannot claim validly of the will to protect workers in the light of the guarantees that are provided by the european law and national”. If measures to protect workers may be legitimate, they must not create discrimination directly or indirectly against economic operators and workers from other member States”. In addition, the national law already holds that “the fight against illegal work” and “the illegal employment of posted workers”. Indeed, the labour Code imposes on the employer the secondment of employees in France bonds, including the application of a “hard core of rights” in terms of hours of work, minimum wage, health and safety.


Finally, the text also recalls that owners must display on the work place the regulations in force, “translated in one of the official languages spoken in each of the States membership of posted workers”. Thus, to impose the mastery of the French language is “discriminatory” and “infringe the principle of equal access to public”.


“It was necessary to see if the device was legal or not”


A source close to the dossier, the ministry of Economy and Finance has provided, for Batiactu, several insights regarding the implementation of this statement. “It is the ministry of Labour which has driven the writing of this text”, we can explain. “He had been taking care of these decisions related to the clause Molière who fell within certain regions.” Asked about the timing of the release of this statement, which is a lot of talk during the presidential campaign, a source in the ministry replied that “an election or not, it was particularly important to see if the device was legal or not. This is why the four departments have taken the time to check if it could be put in place. The government must be the bulwark against practices that are contrary to the law.”


For its part, Parick Liébus, president of Capeb, is pleased to Batiactu of the application of this statement. “I’ve always said that this clause was not regulatory. We hope that this ministerial direction will be followed by the new government.”


Contacted by Batiactu, the French building Federation (FFB), which has ruled several times in favour of the clause Molière, has not wished to react.

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