Posting of drivers to UK
Posting of drivers to UK raises still a lot of questions as UK is neither Member of the EU nor an ordinary third country. Its relations with the EU are governed by the EU-UK Trade and Cooperation Agreement (TCA), which to a wide extend regulates road transport between these two parties. This article clarifies, from the perspective of EU operators, what transport operations between EU and UK are classified as posting and when drivers shall be registered in the IMI system.
EU-UK Trade and Cooperation Agreement
As the UK has left the European Union, since 1 January 2021 relations between these two parties are governed by the Trade and Cooperation Agreement. Articles 459-472 of TCA regulate road transport of goods between UK and EU, together with specific provisions in Annex 31. TCA lies down not only general principles but also specific regulations with regards to posting, driving and resting time, access to the market as well as access to the profession.
According to TCA “road haulage operators of the United Kingdom may undertake up to two laden journeys from one Member State to another Member State, without returning to the territory of the United Kingdom, provided that such journeys follow a journey from the territory of the United Kingdom”. In addition, “road haulage operators of the United Kingdom may undertake one laden journey within the territory of a Member State provided that operation: (a) follows a journey from the territory of the United Kingdom (…) and (b) is performed within seven days of the unloading in the territory of that Member State of goods carried on the journey”. In practical terms this means, that operators registered in UK can make two cross-trade operations within the EU as well as one cabotage operation in a Member State.
When it comes to operators registered in the EU, they “may undertake up to two laden journeys within the territory of the United Kingdom provided that such operations: (a) follow a journey from the territory of the Union (…) and (b) are performed within seven days of the unloading in the territory of the United Kingdom of the goods carried on the journey”. This gives EU operators a possibility to carry out two cabotage operations on the territory of the UK.
Posting situations between EU and UK
According to TCA (Annex 31, Section 2, Art. 6) transport operators established in the EU as well as in the UK are obliged to register posted drivers in the IMI system. The agreement also regulates which transport operations qualify as posting.
Scenario 1: Bilateral operations
According to Annex 31, Part A, Section 2, Art. 3, paragraph 3 of TCA, drivers of road haulage operators, established in all EU Member States, performing road transport operations to UK and from UK to all EU Member States, are exempted from posting rules. This means that a driver employed by a Bulgarian transport operator carrying goods from Bulgaria to UK will be exempted from posting rules. Consequently, there is no obligation to register this driver in the IMI system. The same rules would apply in case of carrying goods from UK to Bulgaria.
Scenario 2: Bilateral operation combined with a cross-trade on the EU territory
All transport operations performed by transport companies registered in the EU between the EU territory and UK are treated as bilateral operations. Therefore, as principle they are exempted from posting rules. This means, that a driver employed by a Polish operator, performing a transport operation between Germany and UK will not be posted to UK and therefore there will be no need to register him/her in the IMI system. However, this driver will be posted to Germany, as he/she is loading goods on the territory of a Member State other than the Member State of establishment. This driver will have to be registered in IMI as being posted to Germany. The same rules would apply in case the same driver would deliver goods from UK to Germany.
Scenario 3: Cabotage operations
According to the Trade and Cooperation agreement between the EU and UK, only drivers employed by EU operators, performing cabotage operations in UK are posted according to Art. 463, paragraph 4, with reference to Art. 462, paragraphs 3-7. This means that a driver employed by a transport operator established in France and performing cabotage operations on UK territory (maximum 2 operations according to TCA) will be posted to UK. As a consequence, this driver will have to be registered in the IMI system for the purpose of posting on UK territory.
Scenario 4: Transit
According to TCA (Annex 31, Part A, Section 2, Art. 3, paragraph 4), drivers employed by road haulage operators established in the EU, who transit through the territory of UK without loading or unloading of goods, are exempted from posting rules. In case of transit there is no obligation to register drivers in the IMI system.
Summary
The Trade and Cooperation Agreement concluded between the EU and UK regulates many aspects of the road transport operations performed between the territory of both parties. According to TCA drivers employed by EU transport operators, performing cabotage operations on UK territory, are considered as posted to UK and as a result shall be registered in the IMI system. All transport operations carried out between all EU Member States and the UK are treated as bilateral operations, regardless of the Member State in which the EU transport operator is established. However, a driver will be posted to an EU Member State in case he/she is loading or unloading goods to/from UK in a Member State, other than the country of establishment. EU drivers will not be posted to UK territory when in transit and in case of carrying goods between the UK and a third country.
