Posting of Drivers in Europe For Transport Companies

Description

The recent special rules on the posting of drivers (Lex specialis) aim to regulate the posting conditions and salaries of employees who provide services in a Member State of the European Union other than that in which the employing company is based. The Lex specialis provisions recognise that the nature of the road transport sector calls for special rules designed for the posting of drivers.

Several EU member states have already implemented measures in this area, but this has resulted in a patchwork of non-uniform and uncoordinated national legislation across the EU.

According to the new EU rules on posting drivers, from 2 February 2022: Lex specialis is the only legal framework applicable to the posting of drivers employed by EU road transport companies; IMI’s Posting Declarations portal is the only one to be used by EU operators to submit posting declarations for their drivers. Requiring operators to submit declarations for their drivers via Member States’ national websites is at odds with EU legislation. Maintaining and applying national requirements to EU companies and their drivers, even in the absence of national transposition measures, is at odds with EU legislation.

As far as the EEA/EFTA countries are concerned, Directive 96/71/EC is applicable in the EFTA/EEA countries as it has been incorporated into the EEA Agreement, while the incorporation of Directive (EU) 2020/1057 is still pending.
As for Switzerland, Directive 96/71/EC is applicable under the Agreement between the Union and Switzerland on the free movement of persons. However, Directive (EU) 2020/1057 is not part of this agreement.
As for the UK, Directive (EU) 2020/1057 is not directly applicable to EU drivers posted to the UK or UK drivers posted to the EU. The Trade and Co-operation Agreement (TCA) between the UK and the EU lays down specific rules on the posting of drivers. Drivers carrying out cabotage in the UK should be considered posted in accordance with Article 463 of the TCA. 463(4), with reference to Article. 462, paragraphs 3-7 (for EU operators, paragraph 7) of the TCA.

Basics on the posting of goods transport drivers

Directive (EU) 2020/1057, hereinafter referred to as the “directive”, lays down specific provisions in relation to Directive 96/71/EC and Directive 2014/67/EU, both legislative documents relating to the posting of workers in the context of the provision of services. It differentiates between the types of transport activities that are subject to posting rules and those that are not. The general criterion for this distinction is the level of connection with the territory of the host Member State.

According to Directive (EU) 2020/1057, it is established that drivers who carry out transport activities in Member States other than the one in which the driver’s employer is established are posted when they carry out the following operations:

• Cross-traffic operations – understood as transport activities carried out between two Member States, or between a Member State and a third country, neither of which is the country of establishment of the operator carrying out such operations;
• Cabotage operations – understood as national transport activities carried out temporarily on the territory of a Member State by an operator established in another Member State.
• The driver is not considered posted in the following situations:
• International bilateral transport operations – understood as transport operations based on a transport contract from the Member State where the operator is registered (Member State of registration) to another Member State or to a third country, or from another Member State or from a third country to the Member State of registration;
• Limited additional loading and/or unloading activities (i.e. cross-border commercial operations as described above) carried out in the context of bilateral operations in the Member States or third countries crossed by the driver;
• Transit through the territory of a Member State without carrying out any loading or unloading activity;
• The initial or final leg of a combined transport operation, as defined in Council Directive 92/106/EEC, in the event that the road leg itself consists of an international bilateral transport operation.

The operator’s administrative obligations before, during and after posting

Directive (EU) 2020/1057, in its Article 1, paragraphs 11 and 12, details the administrative requirements that operators must fulfil in order to prove compliance with the rules on the posting of drivers. Before the posting begins, the operator must:

• Submit a posting declaration to the authorities of a Member State to which the driver will be posted;
• This must be done by the start of the posting period;
• Use the multilingual public interface connected to the Internal Market Information System (IMI). The content of the posting declaration must include:
• The identification of the operator, at least in the form of the Community licence number, where available;
• The contact details of a transport manager or other person designated in the Member State of establishment to interact with the competent authorities of the Member State of destination where the services are provided and to send and receive documents or notifications;
• The driver’s identity, home address and driving licence number;
• The start date of the driver’s employment contract and the legislation applicable to it;
• The planned start and end dates of the posting;
• The registration plates of the motor vehicles;
• The transport services provided (such as freight transport, passenger transport, international transport or cabotage operations).

During the operation, the operator must ensure that the drivers have the following documents at their disposal:

• The posting declaration in paper or electronic format;
• Evidence of transport operations carried out in the host Member State, such as an electronic consignment note (e-CMR) and tachograph records (especially indicating the symbols of the countries of the Member States where the driver carried out transport operations).

After posting, the operator must, no later than eight weeks after receiving the request from the host Member State, send the requested documents via the public interface connected to IMI. These documents may include:

• Tachograph records;
• Dispatch notes;
• Documentation relating to the driver’s remuneration during the period of posting;
• The employment contract;
• Time sheets reflecting the driver’s work;
• Proof of payment of the driver’s remuneration.

Member State authorities may not impose on operators additional administrative requirements beyond those specified in the directive in order to verify compliance with its provisions.