New posting rules, established by the lex specialis Directive 2020/1057, lay down specific rules on posting in the transport sector (Unladen journeys). 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. It results from the lex specialis directive, that as a general rule, drivers are posted when performing cross-trade and cabotage operations. And what about situations, when the driver drives “empty”. Do unladen journeys qualify as posting or not? You will find the answer below.
Unladen journeys
It does not read directly from lex specialis Directive how unladen journeys shall be qualified. However, in the Questions and Answers document, the Commission clarifies that:
- first, unladen journeys shall not be treated in the same way as transit;
- second, an “unladen journey is exempt if it is carried out in connection with a bilateral operation and is not exempt when it is carried out in connection with cabotage or non-bilateral international operation falling under posting rules (cross-trade).”
Therefore, in order to classify an unladen journey as a posting or non-posting situation, we need to classify correctly the connected, following journey.
Un unladen journey, that is followed by cabotage or cross-trade operation, will be classified as posting. It is therefore the purpose of the unladen operation that matters (loading goods to be delivered in a Member State other than the Member State of establishment) and not the fact, that there is no load (consequently no CMR).
Empty journeys on the way back to the Member State of establishment are exempted from posting.
Scenarios explained
In order to help operators understanding posting 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. Scenarios from 12 till 15 in the Question and Answers document cover cases with unladen journeys.
Bilateral operation plus unladen journey:
A driver employed by a company established in Lithuania loads a full truck of goods in Vilnius and unloads them in Paris (bilateral operation between Lithuania and France- exempted from posting). On the way back, the driver drives empty from France to Lithuania (empty journey back to the Member State of establishment- exempted from posting).
Two bilateral operations plus unladen journey:
A driver employed by a company established in Lithuania loads goods in Vilnius and unloads them in Paris (bilateral operation between Lithuania and France- exempted from posting). The driver drives with an empty truck from Paris to Antwerp (empty journey between France and Belgium with an aim to load goods to deliver them back to the Member State of establishment- exempted from posting). The driver then loads goods in Antwerp and unloads them in Vilnius (bilateral operation between Belgium and Lithuania- exempted from posting).
As a conclusion the driver was not posted during the whole journey. The empty journey was exempted from posting as it was followed by a bilateral operation.
Unladen journeys plus cross-trade:
A driver whose company is based in Poland carries out an unladen journey from Warsaw to Berlin (unladen journey between Poland and Germany, followed by a cross-trade- covered by posting). In Berlin, the driver loads a full truck of goods and unloads them in Brussels (cross-trade between Germany and Belgium- covered by posting). Then, the driver drives empty from Brussels to Warsaw (empty journey between Belgium and Warsaw on the way back to the Member State- exempted from posting).
As a conclusion the driver was posted to Germany, from the moment he/she crossed the PL-DE border. The aim of the empty journey was to load goods to deliver them to another Member State. The driver was posted in Germany till the moment he/ she left the DE-BE border, as he/she was performing a cross-trade operation. The driver was posted to Belgium from the border crossing till the unloading (cross-trade). The driver was not posted when performing un unladen journey, as he was going back to the Member State of establishment.
Unladen journeys plus cabotage:
A driver employed by a company established in Germany loads a truck full of goods in Berlin, drives to Paris and unloads all the goods (bilateral operation between Germany and France- exempted from posting). The driver then drives empty to Lyon (un unladen journey between Paris and Lyon with the aim to carry out a cabotage operation- posting) to load goods and unloads them in Marseille (cabotage operation between Lyon and Marseille- posting). The driver then drives empty from Marseille to Nantes (un unladen journey between Marseille and Nantes with the aim to load goods and deliver them back to the Member State of establishment- exempt from posting). On the way back to Germany, the driver loads a truck full of goods in Nantes and unloads them in Berlin (bilateral operation between France and Germany- exempted from posting).
As a conclusion the driver was posted during empty journey between Paris and Lyon as he/ she was driving in order to load goods in order to carry out cabotage operation. The driver was posted during cabotage operation between Lyon and Marseille (till unloading).
It is also worth to recall, that according to Mobility Package, while providing cabotage drivers are allowed to make up to three operations following an international carriage within seven days in a Member State. After leaving that Member State no more cabotage operations can be provided by the same vehicle during 4 following days (so called “cooling off period”). More information can be found in the Questions and Answers document on cabotage published by the European Commission.
Conclusions
Un unladen journey, that is followed by cabotage or cross-trade operation, will be classified as posting. It is therefore the purpose of the unladen operation that matters (loading goods to be delivered in a Member State different than the Member State of establishment) and not the fact, that there is no load (consequently no CMR).
Un unladen journey, within a Member State or between Member States other than the Member State of establishment, with an aim to load goods to deliver them back home will be exempted from posting.
Un unladen journey back to the Member State of establishment will not be classified as posting.
