A veritable sea serpent, the prosecution of concealed work offenses is the subject of significant case law in domestic law. The judgment of May 17, 2022 supplements this case law. In this case, several inspections were carried out during 2016 by the labor inspectorate following a prior declaration of the posting of workers to a company for worksites on which this company intervened as the main contractor.
On the occasion of these checks, a report of offenses was drawn up by the Direccte and the Urssaf, on the basis of which the company and its managing director were cited directly from the heads of concealed work before the criminal court.
More specifically, they were accused of acts of concealed work by concealing salaried jobs and of having evaded declarations to social and fiscal bodies by means of a fraudulent legal arrangement by using Portuguese companies as of subcontractors.
During the hearing, the applicants raised several pleas of nullity. On March 14, 2019, the criminal court rejected these pleas of nullity and declared the defendants guilty of the charges. An appeal was lodged by the interested parties, which confirmed the rejection of the objections of nullity. A power of attorney was then formed by the applicants.
The intervention of the Dirrecte in the criminal trial
The first plea raised by the applicants concerned the intervention in the criminal trial as an intervening party by the representative of the Direccte, who had drawn up a report which served as the basis for the prosecution. However, it was not indicated by the trial judges that the person concerned would have taken the oath of witness before responding to the pleas of nullity raised by the defendants against the minutes. The applicants thus criticized the Court of Appeal for having relied, in order to reject the defenses of nullity of the defendants, on a note drafted by the Direccte in the context of the proceedings before the criminal court. According to them, on the basis of this note, which constitutes a written deposition by a person who could only be heard as a witness, and who was heard neither before the court nor before the court of appeal, the appellate court violated preliminary articles 446 and 452…
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