Posting scenarios explained: cross-trade operations

The lex specialis Directive 2020/1057 lays down specific rules on posting in the transport sector. It distinguishes between types of transport operations to which rules on posting should apply and those not covered by posting regime. As explained in the Questions and Answers on posting of drivers under Directive (EU) 2020/1057 in the context of transport of goods, published by the European Commission, the general criterion for such distinction is the degree of connection with the territory of the host Member State. More specifically, it results from the lex specialis directive, that as a general rule drivers are posted when performing cross-trade and cabotage operations.

Cross-trade operations

Cross-trade operations are understood as transport operations carried out between two Member States, or between a Member State and a third country, none of which is the country of establishment of the operator carrying out these operations (example: a company based in Poland carrying transport operation between Germany and France). As a principle these operations fall under the scope of posting regime. However, the lex specialis Directive offers some exemptions from posting rules, up to maximum two cross-trade operations within a bilateral operation:

·         Model 1+1: on the way from the Member State of establishment a driver may perform within a bilateral operation one cross-trade operation, that is exempted from posting rules; the driver may do the same on the way back to the Member State of establishment:

“Member States shall apply the exemption for bilateral transport operations in respect of goods (…) where, in addition to performing a bilateral transport operation, the driver performs one activity of loading and/or unloading in the Member States or third countries that the driver crosses, provided that the driver does not load goods and unload them in the same Member State.”)

·         Model 0+2: in case no cross-trade operation in addition to a bilateral operation has been performed on the way from the Member State of establishment a driver may perform two cross-trade operations exempted from posting on the way back to the Member State of establishment, as part of a bilateral operation:

“Where a bilateral transport operation starting from the Member State of establishment during which no additional activity was performed is followed by a bilateral transport operation to the Member State of establishment, the exemption for additional activities set out in the third subparagraph shall apply to a maximum of two additional activities of loading and/or unloading (…)”.

One cross-trade operation is understood as an activity composed of loading and/or unloading.

Scenarios explained: cross-trade operations

In order to help operators understanding these specific rules, the European Commission, supported by the Expert Group on the posting of drives, has prepared scenarios explaining transport operations as well as identifying situations where posting rules do and do not apply.

Examples of transport operations where posting rules do not apply (these are based on exemptions described above- scenarios 1+1 and 0+2):

·         A driver employed by a company from Lithuania loads half truck of goods in Lithuania to be delivered to Spain (bilateral operation- exempted from posting).  On its way in Germany the driver loads another half of the truck with goods to be unloaded in Belgium (a cross-trade operation between Germany and Belgium carried within a bilateral operation- excluded from posting). The driver then continues to Spain to unload goods loaded in Lithuania (bilateral operation- excluded from posting). On its way back the driver loads full truck with goods in Spain. Half of it shall be delivered back home to Lithuania (bilateral operation- excluded from posting). On its way the driver unloads half of the truck in Belgium (a cross-trade operation between Spain and Belgium carried out as part of the bilateral operation- excluded from posting). This is a classic 1+1 scenario.

 

·         A driver employed by a company established in Lithuania loads truck full of goods to be delivered in Spain (bilateral operation- excluded from posting). On its way the driver does not perform any additional activities of loading and/or unloading. After unloading the goods, the driver loads other goods in Spain to deliver part of them to the Member State of establishment. On its way the driver unloads part of the goods in Belgium and another part of the goods in Germany (two cross-trade operations Spain-Belgium and Spain-Germany on the way back as part of bilateral operation- excluded from posting). The rest of the goods are unloaded in Lithuania (bilateral operation- excluded from posting). This is a classic 0+2 scenario.

 

·         A driver employed by a company established in Lithuania loads truck full of goods and delivers them to Spain (bilateral operation- excluded from posting). After unloading goods in Spain, the driver loads half truck of goods with destination to Lithuania (bilateral operation- exempted from posting). On its way the driver stops in France to load goods to be delivered to Belgium (first cross-trade operation between France and Belgium to be carried as part of bilateral operation- excluded from posting). The driver continues to Germany, where he loads goods to be unloaded in Poland (second cross-trade operation between Germany and Poland carried out as part of bilateral operation, following a bilateral operation between Lithuania and Spain with no additional loading and unloading- exempted from posting). This is another classic example of scenario 0+2.   

 

Examples of scenarios including posting of drivers:

·         A driver employed by a company established in Portugal loads a truck full of good in Portugal and unloads them in France (bilateral operation- excluded from posting). Then he/she loads a truck full of goods in France and delivers them to Germany. This is a classic cross-trade with no link to the Member State of establishment. The cross-trade operation between France and Germany follows the previous bilateral operation and is not part of it. Therefore, cross-trade operation between France and Germany will be covered by posting rules. The driver will be therefore posted to France and to Germany. The driver then loads goods in Germany and unloads them in Portugal (bilateral operation- excluded from posting).

 

·         A driver employed by a company established in Portugal loads a truck full of goods in Portugal and brings them to Germany (bilateral operation- exempted from posting). After unloading the goods in Germany, the driver makes another loading and brings the goods to Spain, where he unloads them. This is again a classic cross-trade with no link to the Member State of establishment. The cross-trade operation between Germany and Spain follows the previous bilateral operation and is not part of it. Therefore, cross-trade operation between Germany and Spain will be covered by posting rules. The driver will be therefore posted to Germany and to Spain but not to France, as he/she is only transiting its territory. Then the driver returns back home empty (excluded from posting).

It may also happen, that a driver, as part of bilateral operation, may perform more cross-trade operations than just one in scenario 1+1 or two in scenario 0+2. In those situations, in scenario 1+1 always the first cross-trade operation will be excluded from posting and the following will be covered by posting. On a similar basis in scenario 0+2 the two first operations will be exempted from posting and the rest will fall under posting rules. It is important to remember, that the operator may not freely choose which operation will be exempted from posting.  Example:

·         A driver employed by a company established in Lithuania loads half truck of goods in Lithuania to be delivered to Spain. On its way the driver stops in Poland to load goods to deliver them to Germany (first cross-trade operation between Poland and Germany- excluded from posting). The driver then loads other goods in Germany to be delivered to Belgium (second cross trade operation between Germany and Belgium- covered by posting).

 

It is crucial also to understand exactly when posting starts and when it finishes. In case of cross-trade operations covered by posting, posting rules should start applying after the end of preceding bilateral operation, from the moment the driver starts driving to the loading point to load goods to be carried in the context of cross-trade operation to another Member State. The driver is posted till the moment he/she leaves the country of loading. The driver will be posted to a Member State of unloading from the moment the driver enters that Member State to the moment of unloading.

It is important to remember, that the driver is not posted to countries, that he/she is transiting with an aim to unload goods in other MS as part of cross trade operation (example: a driver performing cross trade between Spain and Germany will be posted in Spain and Germany and not in France, that is a transit country).

It is also important to keep in mind specific rules applicable to cross-trade operations following empty trips:

·         A driver employed by a company established in Poland leaves Poland empty to Germany. The driver loads goods in Germany and unloads them in Belgium. Then the driver loads goods in Belgium and brings them to Poland. In this case the driver will be posted to Germany and Belgium as the cross-trade operation between Germany and Belgium is not part of a bilateral operation. The driver will be posted from the moment he/she enters the German territory as he/she is driving empty, with an intention to carry out a cross-trade operation between Germany and Belgium. He/she will be posted in Germany till he/she leaves its territory and then he/she will be posted to Belgium from the moment he/she crossed the border till unloading.  

 

Conclusion

It results from the lex specialis directive, that as a general rule drivers are posted when performing cross-trade and cabotage operations. In case of cross-trade the lex specialis Directive offers some exemptions from posting rules, up to maximum two cross-trade operations within a bilateral operation (scenarios 1+1 and 0+2).

Keep in mind that:

·         the operator may not freely choose which operation will be exempted from posting- in scenario 1+1 it is always the first cross-trade operation that is exempted; in scenario 0+2 the two first operations are exempted;

·         it is important to understand when posting starts and when posting finishes as this will influence the level of remuneration,

·         be careful when you perform a cross-trade operation after an empty trip,

·         while carrying out cross-trade operations drivers are not posted to transit countries.

 

 

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