This article previously appeared on Nieuwsblad Transport.nl: Flag day at Van den Bosch?
Last week there was again much to do about the two bickering parties that have been litigating for almost 10 years about the applicability of the Posting of Workers Directive. I am talking about the proceedings instituted in 2013 by trade union FNV against Van den Bosch Transporten from Erp. A procedure that has already been through five courts.
The latest in that list was the Supreme Court, which on Oct. 14 gave an answer to the question of when we can speak of secondment in international transport. In 2017, the Den Bosch Court of Appeal ruled that there is secondment in the territory of a member state only if the work is performed at least "predominantly" in the territory of that member state.
The Supreme Court saw this differently and ruled that it must be determined on the basis of (all) relevant factors whether there is a 'sufficiently close connection' with a certain Member State to be able to speak of posting. In doing so, the Supreme Court gave a different judgment than the Court of Appeal and the FNV flags went up because they had rightly appealed in cassation against the judgment of the Court of Appeal. The case now goes back to the Arnhem-Leeuwarden Court of Appeal, where the Court of Appeal may test the situation at Van den Bosch against this new standard and must ask itself the question: "Do the facts and circumstances at Van den Bosch point to such a satisfactory link with the Netherlands that there is secondment? If so, the flag can be waved at Van den Bosch.
Indeed, the European Court and the Supreme Court have held, that it is not decisive that the drivers receive instructions from Van den Bosch in the Netherlands. Nor is it sufficient that the drivers regularly start and end their trips in Erp. On the other hand, what is relevant is where loading and unloading takes place, and that was undoubtedly by no means always in the Netherlands. So it remains to be seen whether, based on these criteria and a new weighing of the facts, the Arnhem-Leeuwarden Court of Appeal will rule that there was secondment in the Netherlands. In any case, I consider it not unlikely that the flags will be flying in Erp in two years' time.
Meanwhile, they have not been idle in Brussels. There, too, they saw that the current posting rules were difficult to apply in road transport. That is why the infamous and dreaded Mobility Package for Transport includes specific rules for posting. This specific directive states that only a contract of carriage between two companies can be considered posting. It then explains in great detail that in the case of cabotage and non-bilateral international transport there can be a "sufficiently close link" and therefore the basic working conditions of that specific member state apply.
Sounds clear. Unfortunately, practice turns out to be more recalcitrant. There are no implementation and/or enforcement rules for these new posting rules yet. In fact, many EU countries have not even implemented the new rules in their national legislation yet. As a result, we have ended up in a situation where everyone is looking at each other and wondering, "Where do we go from here? Whether our ruffians are making any headway with the new posting rules? I don't think so. Besides the enormous uncertainty about implementation and enforcement, the Supreme Court ruling will soon play a huge role. Especially in the case of non-bilateral international transport, the 'sufficiently close link' is not that easy to establish, not even with the new rules.
