Massive communication about new posting rules coming from the Directive 2020/1057 caused a consequence that transport companies misunderstood the total frame of all posting rules in Europe and did not pay an attention to still applicable local rules as, for example, the French “Macron Law” which is still applicable even for the bilateral operations if the transport is made with vehicles below 3.5 tons or by temporary work agency drivers.
Don't forget that in France other posting situations NOT falling within the scope of the Directive 2020/1057 are:
- Posting of temporary workers/drivers,
- Intragroup posting,
- Transportation with vans below 3, 5 tons,
- Posting of the undertakings established outside the EU.
For the cases mentioned above, the transport companies posting employees/ their drivers in these situations must:
- submit a posting certificate using the national SIPSI system and keep a copy of this declaration on board the vehicle used to perform the service,
- appoint a representative on French territory responsible for liaising with the officials responsible for road transport control during the posting period and up to 18 months after the completion of the transport service.
As a reminder, the new posting environment described by the Directive 2020/1057.
New rules coming from the Directive 2020/1057 for the posting of drivers in the road transport sector, distinguishes between types of transport operations to which rules on posting should apply and those to which posting rules should not apply.
The rules on posting do not apply when the driver carries out:
- bilateral transport operations involving the carriage of goods or passengers based on a transport contract: from the Member State of establishment of the driver’s employing undertaking, to another Member State or to a third country or from another Member State or a third country to the Member State of establishment of the driver’s employing undertaking.
- the initial or final road sections of combined transport operations, if these road sections, considered separately, constitute bilateral transport operations.
Please note that a bilateral transport operation may include additional activities that are exempt from the rules on posting, namely loading and/or unloading operations carried out in the countries transited during the bilateral transport. The number of such operations is limited: one operation on the journey and one on the return journey, or two operations on the return journey if none was carried out on the first journey.
From 21 August 2023, the exemptions for additional activities shall only apply to drivers using vehicles equipped with V2 smart tachographs.
What are the mandatory documents for a driver to keep in the truck?
The transport company must ensure that the driver has the following data or documents on board the vehicle, in paper or electronic form, to present to the officials responsible for monitoring road transport:
- a copy of the posting declaration submitted via IMI if applicable,
- evidence of transport operations carried out on the national territory (electronic consignment notes (e-CMR) or evidence referred to in Article 8(3) of Regulation (EC) No 1072/2009 of 21 October 2009),
- tachograph records.
Conclusion from my experience: together with documents presented during inspections for transport operations which do not result the immediate application of the posting rules or the immediate exemption from the application of the posting rules; a reliable explanation is also needed to the French authority.
What are the penalties for a failure to comply with obligations related the correct driver’s remuneration?
An employer who does not pay the minimum wage due to the posted worker shall be subject to (primarily) either of the following measures:
- A criminal penalty: in the event of non-payment of the legal minimum wage (SMIC) or the legal minimum monthly remuneration, a fifth class fine (max. EUR 1 500), pursuant to Article R 3233-1 of the Labour Code can be applied. This is a penalty under common law and not specific to the posting.
- An administrative penalty: in the event of non-payment of the legal or conventional minimum wage, an administrative penalty of a maximum amount of EUR 4 000 per employee concerned, pursuant to Article L8115-1 of the Labour Code. In the case of repetition within 1 year, the cap shall be increased by 50%. In the event of repetition within 2 years, it shall be EUR 8 000. This is also a penalty under common law and not specific to the posting.
If you need more explanations or consultation, get a professional advice here.
Is “Macron Law” still applicable in France?