Do provisions on long-term posting of drivers apply to the transport sector and do periods of posting of drivers registered in IMI system cumulate?
Move Expert is receiving a large number of enquiries, especially from Romanian carriers, concerning the period of posting of drivers to be registered within the IMI system. Some operators fear, that while registering drivers for 6-month periods, this will result in an obligation to pay higher remuneration and social security abroad.
In this short analysis we would like to clarify, that in the transport sector posting of drivers periods are not cumulative and registering a posted driver for 6-month consecutive periods in the IMI system will not result in the obligation to apply provisions on long-term posting of drivers or to pay social contributions in the receiving Member State. However, a factual, habitual and continuous presence and activity on the territory of a given MS, may result in some registration and tax obligations towards transport operators and drivers.
What is long-term posting of drivers?
In 2018 EU institutions adopted Directive 2018/957 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services.1 This revised Directive has introduced a new concept of long-term posting of drivers: situation, where the effective duration of posting of drivers exceeds 12 months (with a possibility to extend this period to 18 months). In this case employers are obliged to guarantee posted workers not only minimum but all terms and conditions of employments laid down in the Member State where the work is carried out. This provision was originally aimed at sectors such as construction, where contracts can be of long duration and posted workers tend to create closer links with the labour law of the receiving Member State.
Application of long-term posting of drivers provisions in transport sector
However, in case of transport sector posting of drivers periods tend to be of short nature. As a consequence drivers, who come back to their place of residence or to the employers’ operational centre, are not covered by the rules on long-term posting as their work has been completed. This is confirmed by Directive 2020/1057 laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector. Recital 8 of that Directive clearly stipulates that “Given the highly mobile nature of the transport sector, drivers are not generally posted to another Member State under service contracts for long periods of time (…)”. In addition Article 1.8 of the Directive states, that “a posting shall (…) be considered to be ending when the driver leaves the host Member State in the performance of the international carriage of goods or passengers. That period of posting shall not be cumulated with previous periods of posting in the context of such international operations performed by the same driver or by another driver whom he or she replaces.
And what about social security contributions?
For the purpose of coordination of social security systems in the majority of cases drivers are sent to another Member State in line with provisions of Article 13 of Regulation 883/2004 on the coordination of social security systems. Unlike in Article 12, where social security contributions have to be paid in the receiving country after time limit of 24 months, in case of persons carrying out work in two or more Member States (Article 13) there is no time limit on posting and therefore the posting of drivers periods do not cumulate. As a consequence, registering a posted driver for 6-month consecutive periods in the IMI system shall not result in the obligation of paying social security contributions in the receiving Member State.
Conclusion
The lex specialis Directive clearly confirms that in case of the transport sector the periods of posting of drivers are not cumulated and therefore do not lead to application of long-term posting provisions. There is also no time limit with regards to coordination of social security systems in case of highly mobile workers such as drivers. In this context registering drivers in the IMI system for periods of 6 months will neither trigger a long-term posting of drivers situation nor shall it change place where social security contribution are paid.
