The new posting rules of the European Mobility Package have been in effect since February. But there are still many question marks, knows lawyer-partner at Vallenduuk Transport Advocaten Michelle Vrolijk. In this blog, Vrolijk explains where the posting rules come from, which developments have already taken place and for which journeys the new directive affects. She also explains why Dutch transport companies do have to apply the rules now, despite the fact that the rules have not yet been transposed into national legislation.

It has undoubtedly not escaped your notice in recent years: The European Mobility Package, or the European Mobility Package. A package of three European road transport "laws. The main subjects of these laws are posting (minimum wages for drivers), driving and rest periods (including return home driver) and market access/licensing requirements (including return home truck and cabotage).

It took more than three years to agree on the content of these laws at the European level. Some of these laws apply directly to citizens, but some of them still had to be transposed into national law by all member states within two years. The latter is the case with the new posting rules for road transport, and that two-year deadline expired last February. Unfortunately, the rules have not yet been transposed in many countries (including the Netherlands). What exactly are the consequences and what do transport companies now need to consider?

Posting Directive of 1997

In 1997, the so-called Posting of Workers Directive came into being. In short, this directive says that an employee is entitled to a number of working conditions of the country to which he is temporarily posted. Posting then includes 1) pure posting on the basis of a service contract (such as a transport contract), 2) intra-concern posting or 3) temporary employment. Mainly for the part of pure secondment, this directive has been very difficult to apply in the international road transport sector. Several cases were litigated on this issue and each time judges came to different judgments. In 2014, the Enforcement Directive came into being, it called for, among other things, the obligation to report. Then, in 2018, the Posting of Workers Directive was revised, which, among other things, introduced a new wage concept and stipulated that a posting period may not exceed 12 to 18 months at most (after that time, the employee is entitled to more terms and conditions of employment). Because those posting rules were so difficult to apply to the road transport sector, it was then decided that this Revised Posting of Workers Directive would not apply to road transport until there was a Transport Specific Posting of Workers Directive.

Part of Mobility Package

And so the latter is part of the Mobility Package. The latter directive should have been transposed into national legislation by the Dutch government on Feb. 2, 2022, but it has not yet been done. However, that does not mean that the directive does not yet have to be applied at all. Inspection services cannot yet inspect and enforce compliance with the Transport Specific Posting of Workers Directive, but employees (drivers) can already rely directly on the rights arising from this posting of workers directive. Thus, for example, they can claim against their employer a higher minimum wage from another country to which they are posted.

Pure posting

But when is posting as referred to in this new directive? This is only the case when there is pure secondment, or, in other words, when there is a transport contract (the execution of transport order(s)) between two companies. This can therefore be the case when a client has a transport order performed by a carrier, but also when the carrier charters the order out to a sub-carrier. For these (contracting out) companies, they must pay their employees - even now - in accordance with the new rules.

In short, these new rules boil down to the following:

1.       Bilateral transport is not secondment (i.e. the employee does not receive the wages of the countries in which he drives / loads / unloads);

2. transit transport in another member state is not posting (i.e. the employee does not receive the wages of the country through which he drives);

3. a journey that is part of combined transport is not posting, provided the journey itself is bilateral (see under 1);

4. cabotage transport is always posting (the employee receives the wages of the country through which he drives, loads and unloads);

5. non-bilateral international transport (third-country transport) is posting.

Especially this last form of transport as mentioned under 5, is of course very common. Transport company A based in Poland, carries out a transport order for client B, based in the Netherlands for a trip to unloading address C in Germany. Unfortunately, to this day there is still a lot of uncertainty as to exactly what consequences these new rules in this case will have on the wages of the drivers. Do they receive Dutch wages because they unloaded in the Netherlands? And for how long exactly? Only for the stretch in the Netherlands or for the entire trip? Or is it German wages because they unloaded in Germany? I will discuss this in more detail in a follow-up article next month.

Temporary employment

Finally, it is worth noting that temporary employment (i.e., a transport company hiring employees from a foreign temporary employment agency) is not covered by the Transport Specific Posting Directive. This form of posting - including for the road transport sector - has always been covered by the application of the Revised Posting of Workers Directive.  Temporary workers are therefore also directly entitled to Dutch wages when they are posted to a Dutch transport company.

Transportation company, apply rules now.

Despite the fact that the rules on posting have not yet been transposed into national legislation, the conclusion is that transport companies will have to apply these rules anyway. Together with the application of the many other new rules from the Mobility Package, it is therefore advisable for transport companies to take a close look at their current operations in order to identify which work processes need to be adjusted. In doing so, be well informed by specialists, because the consequences of non-compliance can be significant. As far as posting is concerned, although at present employees can only approach their employer, which can probably be solved by mutual agreements, soon - when the laws have been transposed into national legislation - inspectorates will also be able to impose fines during road and company inspections if it is found that these rules are not being complied with.

‍

‍