As Member States are still in the process of shaping their enforcement practices of Mobility Package 1, we start gaining some clarity on the treatment of 3rd country operators as well as drivers employed by temporary work agencies. Some national practices have been summarized by the European Labour Authority in its “Report on cooperation obligations and practices in the enforcement of EU rules on International Road Transport in the EU”.
1. Treatment of undertakings established in 3rd countries
The European Labour Authority has asked Members States about their practices to treat operators from third countries, providing transport operations on their territory. Several MSs (BG, DK, HU, LT, RO, SE, SI) did not specify any special measures, however other countries (CZ, ES, FI, FR, IT, IE, SK) indicated possible differences in treatment between undertakings established within the EU and third-country operators.
Article 1(4) of Directive 96/71/EC, and Article 1(10) of Directive (EU) 2020/1057 prohibit Member States from treating undertakings established in a non-member State more favourably than undertakings established in an EU Member State. On this note, there are indeed differences in the paperwork that needs to be completed by transport companies when they post workers to EU countries. Due to the fact, that the IMI system is not open to operators from outside the EU (except the UK), the majority of countries have their national administrative systems in place, ”which require the third-country operators to notify the same (or more detailed) information than applies to EU operators under the new EU provisions”.
Notification obligations
Although it is not possible for third-country operators to notify posting declarations through IMI, Member States may require them to do so through national registers. This is the case of France, where the national SIPSI online system for posting notifications allows the French authorities to collect posting declarations from undertakings established in a third country.
The situation is different for example in Czechia and Slovakia, where third country undertakings are at present not required to notify posted drivers. This is due to the fact, that a national system for notifications for third country operators has not been implemented in these countries. This situation might be similar in other Member States, where no parallel national system has been established.
Other administrative requirements
Member States may also apply different requirements to EU and non-EU operators with regards to the retention of documents or other administrative provisions. In Czechia there is a “general obligation for foreign employers who post their employees to perform work on Czech territory to retain copies of employment contracts, including their translation into Czech (…). A recent amendment to the Act on Road Transport implemented this provision in a way that this obligation applies to road transport operators from third countries (…).”,
In France non-EU transport undertakings need to have a representative in the French territory who can liaise with national control officers.
2. Law applicable law to temporary agency work and intra-group postings
In one of our articles about Posting of drivers via temporary work agencies we have explained general rules, that are applicable in this case. Unfortunately, there is still not enough clarity and national provisions may vary.
Directive (EU) 2020/1057 does not apply to drivers who are employed by a temporary work agency or to intragroup posted drivers. “Under this type of posting, drivers remain under the direct authority of their original employer and provide their services to companies that require to have their goods transported.”
While taking part in the survey run by ELA, a number of countries (BG, IE, LT, LV, RO, SE) did not describe any particular regulatory scheme applicable to drivers who fall outside the scope of the Directive. Other Member States (AT, DE, DK, ES, HU, NL, PL, SK, SI) claimed that they use the general legal system for the posting of workers for these categories of drivers.
Specific administrative requirements
In Denmark transport companies “are not allowed to hire out drivers for the carriage of goods for hire or reward to other transport companies unless the (leasing) company is approved by the Danish Road Traffic Authority.”
In Spain general rules on posting are applied in cases of intra-group or temporary agency posted workers. In situations, where posting exceeds 8 days “temporary employment agencies must report the posting period to the authorities of the place where the centre of the user company is located” and “groups of companies must report the posting period to the authorities of the place where the headquarters of the group company is located”.
In Finland the minimum conditions of employment are applicable to all categories of posted workers. However, the obligation to notify posted workers via IMI as well as “the requirement for the operator to ensure the driver has at his or her disposal certain documentation when requested at the roadside” apply only to subcontracting.
In France, there are special requirements for temporary drivers and intra-group posting. “They must have a certificate provided for in Article L1331-1 (and R1331-1 to 1331-8) of the Transport Code, which replaces the declaration provided for in Art. L1262-2-1 of the Labour Code.“
In Italy there are general rules applicable to transport sector, with a series of specific information obligations for the user company making use of posted temporary agency workers. The user company is obliged to inform the agency about the working and employment conditions that apply to the posted workers. This information has to be translated in Italian and retained for 2 years. The user company has to inform the agency, in case a worker has been posted to another country.
Other Member States (CZ, FR, IT, PT) specified, that they have a specific regime for workers who fall outside the scope of Directive (EU) 2020/1057, but did not provide any details.
Take aways
ELA report confirms, that national practices may vary when it comes to treatment of drivers employed by third country operators and temporary work agencies. The majority of MSs have special provisions foreseen for these situations. It has to be noted, that in general drivers employed by third country operators as well as drivers employed by temporary work agencies may be required to be registered in national systems instead of IMI. Additional administrative requirements, such as possession of an employment contract or obligation to have a representative in the receiving MS, may apply to drivers providing services on behalf of transport companies from outside the EU.
