New Directive including new posting requirements adopted as part of the Mobility Pact, came into force on February 2 and 21. Posting rules for drivers under the new Directive (EU) 2020/1057 in the road transport sector are complex.
The European Commission has published a very important guidance document to present 15 illustrations of posting / non posting situations (bilateral, cabotage, cross-trade, transit, laden).
A must to read to understand subtilities, complexity such as for example, a driver can be considered, in the same country, the same day in his journey as a posting AND non posting situation…
In the form of 15 illustrations of posting situations, document provides details under which conditions a driver can be considered to be a posted worker and consequently should be paid according to the national law where he is posted. In fact, a driver can be considered “posted” or not during a single transport journey, which raises more questions than it answers and has a very complicated effect for transport companies.
Exemple from this guidance :
Cross-trade between two bilateral operations A driver employed by a company established in Portugal (PT) carries a full truck of goods from Lisbon (PT) to Marseille (FR). The driver unloads the goods in Marseille. In Marseille (FR), the driver then loads a full truck of goods and unloads them in Berlin (DE). In Berlin, the driver loads a full truck of goods and unloads them in Porto (PT).
The driver performed two distinct bilateral operations and one cross-trade operation. The first bilateral operation started in PT (Member State of establishment) with loading goods and ended in FR with unloading those goods. The second bilateral operation was performed from loading the goods in DE to unloading them in PT (Member State of establishment). During the two bilateral operations, the driver was not subject to posting rules. The operation of loading goods in FR and unloading them in DE was a cross-trade operation not connected to any of the two bilateral operations. Therefore, the driver starts to be posted to FR after the end of bilateral operation when he/she starts driving to the loading point to load the goods to be carried in the context of cross-trade operation. The posting to FR ends when the driver leaves the French territory. Then the driver is considered posted to DE, from the entry into DE territory until unloading goods in that Member State.
You can find all the scenarios descriptions HERE :
How to identify the correct situation? How to minimize the infringement risks? how to answer authorities’ requirements?
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