Employment law

Which law applies to locally engaged staff at an embassy in France?

· 5 min · Jeanne Paul

An embassy in Paris hires an administrative assistant, an accountant, a driver. The contract may be drafted at headquarters, in the language of headquarters, following the practice of headquarters. Yet for most of the employment relationship, French law governs. This still surprises many diplomatic missions, although international texts and French courts settled the question long ago.

Local staff are employees, not diplomats

Staff hired locally hold no diplomatic status. French official practice expressly distinguishes these recrutés locaux from personnel covered by the Vienna Conventions, as a parliamentary question devoted to their situation records. The vocabulary varies from one country to another: the US State Department speaks of locally employed staff, Australia's protocol guidelines of locally engaged staff. The legal consequence in France does not vary with the label.

For these employees, the European conflict-of-laws rule is clear. Under article 8 of the Rome I Regulation, an employment contract is governed, absent a choice, by the law of the country where the employee habitually works, and choosing another law cannot deprive the employee of the protection of that law's mandatory provisions. A contract governed by the sending state's law therefore does not switch off the mandatory protections of French employment law for a position performed in France.

Social security: the Vienna Convention binds the employer

The Vienna Convention on Diplomatic Relations of 1961 is often cited as a shield. On this point, article 33 says the opposite: where a member of the mission employs persons who are not covered by the social security exemption, the employer must observe the obligations that the host state's social security provisions impose on employers. The exemption in article 33(2) is narrow. It covers only private servants who are neither French nationals nor permanent residents of France, and who remain covered by the social security scheme of the sending state or a third state. Everyone else falls under the French obligations.

Unemployment insurance followed the same logic. Since 1 April 2020, employees of embassies, consulates and permanent delegations located in France who are covered by French social security are compulsorily affiliated to the general unemployment insurance scheme, with the contribution owed by the employer to the competent Urssaf office.

What French courts have already decided

State immunity has not disappeared, but the Cour de cassation, France's highest civil court, has drawn its limits in a consistent line of cases.

A foreign state enjoys immunity from jurisdiction only where the act in question relates, by its nature or its purpose, to the exercise of that state's sovereignty. Failing to register an employee with French social protection is an act of management, which French courts may hear.

That principle comes from a chambre mixte decision of 20 June 2003, brought by a teacher at the Saudi School of Paris who had not been affiliated to French social security. In 2008, in a case involving the Kuwaiti embassy in Paris, the Court held that dismissing an employee whose actual duties were administrative, secretarial work and diary management, was an act of management: the immunity plea failed because her duties gave her no particular responsibility in the exercise of the diplomatic public service. In 2009, concerning the closure of the United States consulate general in Martinique, the Court accepted that a state may invoke immunity as to the motives for closing a post, while holding that the French judge retains the power to verify that the claimed closure was real and to rule on the consequences of the local employee's dismissal.

The overall picture is consistent. French courts can and do hear employment disputes brought by local staff. Immunity remains available where the employee exercised particular responsibilities in the diplomatic public service, and that assessment is made function by function, based on the duties actually performed.

What a mission should do in practice

A few disciplined habits reduce a mission's exposure considerably:

  • map the duties each locally engaged employee actually performs, since immunity turns on the nature of those duties;
  • align local contracts with the mandatory protections of French employment law, whatever governing law the contract names;
  • comply with French employer social security obligations, as article 33 of the Vienna Convention requires;
  • check unemployment insurance affiliation and the corresponding contributions to Urssaf, mandatory since 1 April 2020;
  • keep documentation at every step, from the employment contract to the payslips.

These questions are far easier to settle in advance than in litigation. OMAC Consulting supports embassies and international organisations with HR and payroll compliance for their locally engaged staff, working in English as naturally as in French.

This is general information, not legal advice.