The new posting directive transposed to Germany

The Draft Act on the Regulation of the Posting of Drivers in the Road Transport Sector and on the Cross-Border Enforcement of the Posting of Workers Act has been adopted in Germany on 1st of March 2023.  The draft act transposes EU law requirements in the area of posting law into national law. However, it has not yet been entered into force. 

The aim of the Road Transport Directive is to eliminate discrepancies between the interpretation, application, and enforcement of the rules on the posting of workers in the road transport sector by the Member States of the European Union. It aims to make the road transport sector fair, efficient and socially accountable, while providing greater legal certainty, reducing the administrative burden on transport operators, and preventing distortions of competition.

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POSTING DECLARATION AND INFORMATION

The government draft law contains in particular the following measures:

One of the most important changes concerns the posting declaration. Under the new MP rules, the carrier which is established in the European Union (EU) must send the posting declaration via the Internal Market Information system (IMI) at the latest at the beginning of the posting. This rule will be transmitted to the German legislation as well. The carrier must provide a list of necessary information when submitting the declaration, which must also be updated within five days from the date of change.

A multilingual public interface to the Internal Market Information System (‘IMI’) will be introduced in Germany, which will allow road transport companies to access and update posting information and, if necessary, to transmit other relevant documents to IMI.

ADMINISTRATIVE OBLIGATIONS OF CARRIERS AND DRIVERS

The administrative provisions for the control and enforcement of the posting rules will be concretized for the posting of workers in the road transport sector.

The new regulations impose obligations on both the carrier and the driver. The carrier must ensure that the driver has the necessary documents and complies with the posting declaration requirements. The driver and carrier must ensure that the driver has a copy of the IMI declaration, CMR papers, and tachograph data on paper or electronically inside the cabin.

The driver shall carry the documents made available and present them to the authorities of the customs administration on request in written or electronic format.

EXCEPTIONS

The main application of the right of posting in the road transport sector has been clarified. In particular, workers carrying out cabotage or non-bilateral international transport operations have sufficient links with the territory of the host Member State.

In principle, the new posting rules do not apply to workers who carry out transit or bilateral transport operations in both freight and passenger transport for companies established in an EU Member State.

A driver is not considered posted when performing transit or bilateral operations, even when part of a combined transport or additional operations to bilateral transport as described in the Mobility Package directive.

Drivers posted by Temporary Work Agencies (TWA) are not covered by the Mobility Package posting rules, so suppliers should submit the declaration through the national system as before.

FINES

The new regulations also come up with fines up to 500.000 euro for non-compliance.

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