Application of new posting rules to LCVs- situation in France
As a general rule, since 2 February 2022 transport operators are subject to new legislative measures on posting, including administrative requirements in case of control and the obligation to register posted drivers in the IMI system. The lex specialis Directive 2020/1057 does not differentiate directly between transport operations carried out by heavy or light commercial vehicles (below 3,5t). It was therefore a common understanding that application of lex specialis rules does not depend on the type of vehicle used during transport operation, until France has transposed the lex specialis Directive with a separate regime for LCVs.
Transposition of lex specialis in France
While transposing lex specialis Directive France has concluded, that drivers, who provide transport services while using light commercial vehicles shall continue to be registered in the national registration system SIPSI instead of the IMI system. Art. L1331-1 of the transport code, modified on 8 October 2021 by legislative act n. 2021-1308, states that transport operators shall continue to register posted drivers in SIPSI except operators, who provide transport operations while using heavy duty vehicles equipped with a tachograph and being subject to Regulation 561/2006.
What is more, following this reasoning France has concluded, that operations carried out by LCVs are entirely excluded from lex specialis rules, which means direct application of the mother directive on the posting of workers. As a result, in terms of administrative requirements and documents to be kept in the cabin for the purpose of control, in case of LCVs France continues to enforce provisions of the Enforcement Directive 2014/67/EU instead of lex specialis rules.
Is this interpretation in line with EU law?
The lex specialis Directive does not directly differentiate between operations carried out by heavy duty vehicles or light commercial vehicles. However, in its Question and Answers document (question number 9) the European Commission underlined, that “Directive (EU) 2020/1057 makes multiple references to the information recorded on tachographs, which under Article 3(1) of Regulation (EU) No 165/2014 are compulsory only on vehicles to which Regulation (EC) No 561/2006 applies (i.e. vehicles used to carry goods where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 3,5 tonnes – or as from 1 July 2026, 2,5 tonnes (…)”. This explanation gives indeed room for interpretation, which has been used by France. The European Commission has confirmed, that French rules are in line with EU legislation.
LCVs: what are the administrative obligations when posting drivers in France?
As a result, till 1 July 2026, France may continue exempting transport operations carried out by LVCs from lex specialis rules, since these vehicles are not equipped with a tachograph. This means, that in case of transport operations carried out by LCVs operators need to register drivers in SIPSI and appoint a representative in France. These obligations are regulated by Art. L. 1331-1 and L. 1332-1 of the Transport Code.
According to French provisions of Art. L. 3313-4 and R. 1331-7 of the Transport Code and L. 114-15-1 of the Social Security Code, while providing transport services by LCVs drivers must keep on board of their vehicles, for the purpose of posting, the following documents, translated into French:
What is more, following this reasoning France has concluded, that operations carried out by LCVs are entirely excluded from lex specialis rules, which means direct application of the mother directive on the posting of workers. As a result, in terms of administrative requirements and documents to be kept in the cabin for the purpose of control, in case of LCVs France continues to enforce provisions of the Enforcement Directive 2014/67/EU instead of lex specialis rules.
- valid posting certificate filed in the SIPSI system;
- copy of employment contract;
- time-sheets indicating the beginning, end and duration of the daily working time (“Livret individuel de contrôle”, LIC), which is used to record the working time of drivers of light commercial vehicles below 3.5 tons;
- the A1 certificate issued by the social security authority of the country of establishment.
According to French Decree no.2016-418 dated 7 April 2016, the representative is obliged to keep the following documents, translated into French, for the consecutive period of 18 months after the termination of the contract between the transport operator and the representative:
- payslips;
- proof of payments of wages or copies of equivalent document.
It should be also noticed, that in case of international transport operations carried out by LCVs in France, all transport operations other than transit are considered as posting situation.
To our knowledge for the time being only France has decided not to cover operations carried out by LCVs by new posting rules according to Mobility Package I.
