IMI vs national registration system

IMI registration or national registration systems - what prevails in countries, who have not transposed yet the lex specialis Directive?

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Despite the fact, that Member States were obliged to transpose the lex specialis Directive 2020/10571 by 2 February 2022, only few of them have done so. To our knowledge so far only France, Denmark, Spain, Finland, Romania, Hungary, Greece and Slovakia have reported to the European Commission a full transposition of lex specialis rules. This situation still creates huge legal uncertainty for transport companies as to which rules apply and leads to unjustified fines. 

Move Expert has been informed by its clients that in some Member States control authorities still do not respect IMI posting declarations and request instead possession of declarations made via national registration systems. In some other cases transport operators have been asked to provide translation of documents kept in the cabin, which is no longer obligatory according to lex specialis rules. 

Which system should apply in all MSs

In order to make sure that all Member States, apply lex specialis rules, even those who have not transposed the Directive 2020/1057, the European Commission has issued a letter to all EU Member States reminding them about this obligation. In its letter the Commission clearly states, that in the absence of transposition measures, imposing on foreign operators national administrative requirements and control measures with respect to the posting of drivers is not in line with the EU rules, and in particular imposing the use of national systems to submit posting declarations, is in violation of EU law. The European Commission also underlines, that “as of 2 February 2022, under Directive (EU) 2020/1057, the EU Portal for posting declarations must be the only obligatory system that road transport operators may be required to use to send declarations when posting their drivers to other Member States”. (letter is available here)

Obligations of transport operators according to lex specialis resulting from the Mobility Package

The European Commission has clearly stated, that also those countries, who have not transposed yet the lex specialis Directive, should apply lex specialis rules from 2 February 2022 instead of national rules, that have been applicable before that date.

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So what are the only obligations of the transport operators in case of new posting rules according to lex specialis Directive?

This is clearly indicated in the Question and Answers on posting of drivers 2020/1057- scenarios in the context of transport of goods by road.

Prior to the posting the operator shall submit a posting declaration to the authorities of a Member State to which the driver is posted, at the latest at the commencement of the posting and using the multilingual public interface connected to the Internal Market Information (IMI) system.

During the posting the operator shall ensure that the drivers have at their disposal the following documents (no translation of these documents is required):

  • the IMI posting declaration in paper or electronic form;
  • evidence of the transport operations taking place in the host Member State, in paper or electronic form such as an electronic consignment note (e-CMR);
  • the tachograph records (in particular country symbols of the Member States in which the driver carried out transport operations).

After the posting the operator shall, no later than eight weeks from receiving the request of the host Member State via the IMI portal, send via IMI documents, such as:

  • tachographs records;
  • consignment notes;
  • documentation relating to the remuneration of the driver in respect of the period of posting;
  • the employment contract;
  • time-sheets relating to the driver’s work;
  • proof of payments of driver’s remuneration.

This is an exhaustive list of documents, that can be requested by national control authorities via IMI in order to control posting. No translation of these documents is obligatory. The requested documents can refer only to postings that took place no later than 12 months before the date of the request.

Member States’ authorities cannot impose any additional administrative requirements on the operators than those specified in the Directive, in order to check compliance with posting rules. They cannot require possession of posting certificates for the periods before 2 February 2022.

Conclusion

As of 2 February 2022 all EU Member States, even those who have not transposed Directive 2020/1057, shall apply lex specialis rules. They can enforce only these administrative obligations, that have been put on operators by lex specialis Directive. Enforcing national rules applicable before 2 February 2022 such as obligation to register in national system or possession of translated documents, are against current EU rules. This has been confirmed in a letter sent by the European Commission to all MSs in the beginning of February 2022.

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