The Mobility Package was adopted by the European Parliament on 8 July 2020. This Mobility Package consists of two Regulations and one Directive, which impose new rules on access to the profession and to the market, driving and rest periods and tachographs, respectively, and enforcement and posting of drivers in the road transport sector. This contribution will consider the new rules on the posting of drivers and their enforcement.
Entry into force
Important to know: this part of the Mobility Package will only enter into force on 2 February 2022, unlike the Regulation on driving times and rest periods, which already entered into force on 20 August 2020.
Posting of workers
The new Directive[1] complements directive 96/71/EC on the posting of workers in the framework of the provision of services (hereafter: ‘Posting of Workers Directive’) and provides for specific rules for certain road transport activities, as road hauliers are currently excluded from the applicability of the new posting of workers directive 2018/957/EC, which amends directive 96/71/EC. For these hauliers, in addition to the applicability of the Posting of Workers Directive as amended by Directive 2018/957/EC, the following specific rules will apply from 2 February 2022.
Scope of application
The rules on the posting of workers shall not apply to drivers engaged in bilateral transport operations in the carriage of goods. This means that a transnational carriage of goods between the Member State of establishment and another Member State is not subject to these rules. The Directive also does not apply to drivers engaged in bilateral passenger transport operations. In other words, it must always be national transport operations carried out by an employee of an undertaking established in a Member State other than that in which the transport is carried out or international transport operations between Member States to which the Member State of establishment does not belong. It is important to know that a driver carrying out cabotage is deemed to have been posted.
Terms and conditions of employment
Member States must ensure that all terms and conditions of employment in force in their territory, including the collective agreements declared generally applicable, are made available to transport undertakings in an accessible and transparent manner. Furthermore, transport undertakings established in a third country (i.e. a country which is not a Member State of the European Union) may under no circumstances receive more favourable treatment than undertakings established in a Member State.
Enforcement
By way of derogation from Directive 2014/67/EU, which laid down the enforcement measures implementing Directive 96/71/EC, Member States may only impose the following administrative rules and control measures in respect of the posting of drivers:
- A declaration of posting, to be submitted, at the latest at the beginning of the secondment, to the competent authorities of the Member State to which the posting is to take place, which shall be drawn up in accordance with a standard multilingual form and which shall contain the following information:
- The identity of the economic operator and at least the number of the Community transport authorisation;
- The contact details of the contact person in the Member State of establishment, who may, where appropriate, be a transport manager, who will act as an intermediary with the authorities of the Member State to which he is posted;
- The identity, address of the place of residence and driving licence number of the driver;
- The commencement date of the driver’s employment contract and the law applicable to it;
- The planned start and end dates of secondment;
- The registration plates of motor vehicles;
- Whether the transport services provided are goods transport, passenger transport or international transport, or cabotage.
- The obligation for the entrepreneur to ensure that the driver has at his disposal, on paper or in electronic form, the following, as well as the obligation for the driver to keep and make available when requested to do so during a roadside check:
- A copy of the declaration of posting;
- Proof that the transport operation takes place in the host Member State, such as an electronic waybill (e-CMR) or the clear proof required by law with all the mandatory particulars in the case of cabotage;
- The tachograph data, and in particular the national symbols of the Member States where the driver was engaged in international road transport or in cabotage.
- The obligation for the road haulier, after the period of posting, to be able to produce certain documents at the request of the competent authorities of the host Member State. These documents are copies of proof that the transport operation takes place in the host Member State and of the tachograph data, as well as documentation relating to the driver’s remuneration in relation to the period of posting and the employment contract or an equivalent document.
In order to ensure that a driver is not to be regarded as seconded as a result of the aforementioned bilateral transport operations between the Member State of establishment and another Member State, Member States may only impose, as a control measure, an obligation for the driver to carry a paper or electronic version of the proof of the international carriage in question, such as an electronic waybill (e-CMR) or the clear proof required by law containing all the mandatory particulars in the case of cabotage, as well as tachograph data.
Sanctions
It is up to the Member States themselves to lay down the penalties for infringement of all these specific rules. However, these penalties should apply to consignors and freight forwarders as well as to contractors and subcontractors and this when they knew or should have known, taking into account all relevant circumstances, that the transport services they commissioned were in breach of national rules adopted pursuant to the transposition of the Directive.
[1] Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 laying down specific rules in respect of Directive 96/71/EC and Directive 2014/67/EU as regards the posting of drivers in the road transport sector and amending Directive 2006/22/EC as regards the rules on enforcement and Regulation (EU) No 1024/2012.