The scope of the lex specialis Directive covers drivers that are posted on the territory of EU Member States directly via transport operators that provide transport services to another independent party. As a result, intragroup posting as well as posting of drivers via temporary work agencies are excluded from lex specialis and governed by the Posting of Workers Directive. However, questions still arise where to register drivers posted via temporary employment agencies. This is especially complicated in case of cascade posting, when drivers employed by a temporary work agency are posted to a user undertaking from another EU country and then sent further to provide international transport operations in other Member States.
Scope of the lex specialis Directive
Lex specialis rules apply only to drivers, that are posted by EU undertakings “to the territory of a Member State on their account and under their direction, under a contract concluded between the undertaking making the posting and the party for whom the services are intended, operating in that Member State, provided there is an employment relationship between the undertaking making the posting” (Article 1.3.a of the Directive 96/71/EC).
However, drivers posted by “a temporary employment undertaking or placement agency, (who) hire out a worker to a user undertaking established or operating in the territory of a Member State, provided there is an employment relationship between the temporary employment undertaking or placement agency and the worker during the period of posting” (Article 1.3.c of the Directive 96/71/EC), are excluded from lex specialis rules and are covered by Directives on posting of workers 96/71/EC and 2018/957. This also means that these drivers should be registered in national registration systems for posting, rather than in the IMI system.
National registration systems or IMI?
It follows directly from lex specialis rules that drivers posted abroad by a temporary work agency from country A to country B shall be registered in national registration systems and not in IMI. However, a question arises what happens in situations where a driver posted to a transport undertaking in country B is further posted by a transport operator to country C to carry out international transport operations? Informal discussions with the European Commission lead to a conclusion that such drivers should be also registered in the national registration systems instead of IMI. The main argument is that a temporary work agency continues to be the principal employer of the posted drivers even if they have been hired out to another entity.
In this context, pursuant to Article 3.1(b) of the Directive 2008/104/EC, “temporary work agency means any natural or legal person who, in compliance with national law, concludes contracts of employment or employment relationships with temporary agency workers in order to assign them to user undertakings to work there temporarily under their supervision and direction.”
For the time being we do not have knowledge whether national interpretations in Member States are in line with the European Commission interpretation. A problem may arise in cases where there is no national registration system for drivers in a given Member State. We are also aware of a case in Denmark, where during road check inspectors were requesting from a driver posted by a temporary work agency an IMI declaration instead of registration to the national system. Similar cases have been also registered in Italy.
As a temporary work agency remains the principal employer of drivers posted by transport undertakings to other Members States, it seems that these drivers should be always registered in national registration systems for posting instead of the IMI system.
Unfortunately, as long as there is no official interpretation from the European Commission, Member States may apply different rules. It is therefore advised to be extremally vigilant, check national rules in place and in case of control and lack of the IMI declaration use the abovementioned arguments.