Important changes to the Road Transport of Goods Act as of 1 January 2024
Important changes to the Road Transport of Goods Act as of 1 January 2024, further tightening chain liability in the Transport Sector
As of 1 January 2024, significant amendments to the Road Transport of Goods Act (Wetwegvervoer goederen, Wwg) have come into force, further reinforcing chain liability within the transport sector. The new rules extend liability beyond transport companies to include principals such as shippers and freight forwarders. This shift, which is fundamentally aimed at promoting fair and safe practices within the transport sector, is a direct consequence of EU Regulation 1072/2009 and the broader EU Mobility Package.
Consequently, the responsibility of the shipper, freight forwarder and main carrier is broadened even further. After all, chain liability already exists for the Foreign Nationals Employment Act (Wet Arbeid Vreemdelingen), the Minimum Wage Act (Wet Minimumloon), and for the payment of correct wages under the Act to Combat Bogus Employment Constructions (Wet Aanpak Schijnconstructies, WAS). There is also a tax liability risk when personnel are hired in (for example, through temporary employment agencies or intra-group lending of staff).
In this first part on chain liability, I will primarily address the legal framework and the practical impact arising from the Wwg. In the second part, I will discuss chain liability related to payment of the correct wages.
What does chain liability under the Wwg entail?
The primary purpose of the new regulations is that liability now attaches to all parties in the transport chain who knew or should have known that the contracted carrier was engaging in illegal practices. Chain liability applies to all economic offences defined in Article 2.14 Wwg. Specifically, these economic offences include:
- Illegal cabotage: the domestic road transport of goods within an EU Member State by a carrier established in another Member State.
- Carrying out professional transport without a licence.
- Carrying out professional transport without a certified copy of the licence on board the truck.
- Carrying out professional transport without a driver attestation when one is required.
If the Human Environment and Transport Inspection (Inspectie Leefomgeving en Transport, ILT) establishes that there has been a breach of the chain liability rules, it must take enforcement action. This may involve imposing an order subject to a penalty for non-compliance (last onder dwangsom) or criminal measures. An order subject to a penalty is imposed for repeated violations of the Wwg. In the event of criminal prosecution, the ILT may draw up an official report, which is then submitted to the Public Prosecution Service (Openbaar Ministerie, OM). The OM subsequently decides whether to issue a criminal penalty order or to proceed with prosecution. We are increasingly seeing that enforcement is handled by the OM. More broadly, there is a noticeable shift from administrative enforcement towards criminal enforcement. In cases of criminal prosecution within the chain, the OM must prove that a freight forwarder or a shipper knew or should have known that the transport of goods was carried out in violation of the above-mentioned statutory provisions. This,first of all, raises the question of what should be understood by the term “shipper,” given that Regulation 1072/2009 (on which Article 2.14 Wwg is based) refers to “senders,” “contractors,” and “subcontractors.” In other words, it is a broader term than the Dutch legal definition of “shipper.” Moreover, it is particularly relevant to establish when the requisite level of knowledge (“knew or should have known”) regarding the carrier’s unlawful actions is met. How will enforcement operate in practice?
Deviations in the Dutch implementation
European Regulation 1072/2009 offers the possibility of imposing sanctions on senders, contractors and subcontractors, whereas the Dutch legislation uses the term “shipper.” Instead of adopting the broader terms “contractors and subcontractors,” the Dutch legislator has opted to align with the definition of“shipper” as it appears in Dutch law. Pursuant to Book 8 of the Dutch Civil Code, a shipper is the contractual counterparty of a carrier in a contract of carriage. According to the ILT, using the term “shipper” (afzender in Dutch) in the Wwg instead of “sender,” “contractor” and “subcontractor” (as used in the Regulation) may lead to ambiguity in enforcement. After all, the scope of the Regulation goes beyond the mere contractual counterparty of the carrier. In the Explanatory Memorandum, it is therefore clarified that the Netherlands interprets the terms “sender,” “contractor,” and “subcontractor” in such a way that they correspond to the term “shipper,” which is already well established in Dutch law [1].
As a result, the broad concept of “shippers” and “freight forwarders” can now come under the scrutiny and enforcement of the ILT and the OM, including parties at the top of the transport chain. For liability to arise, the shipper or forwarder does not need to have instigated, instructed or facilitated thecarrier’s actual infringement. The mere fact that they “ought to have knownfrom the circumstances” that a violation was taking place may be sufficient forliability to be established. However, the law does not specify which “circumstances” could be relevant here.
Practical application of enforcement
Upon introducing Article 2.14 Wwg, the House of Representatives (Tweede Kamer),as well as the labour unions FNV and CNV and the sector organisation TLN,requested clarification on the practical application of chain liability. Specifically, they questioned how far the reach of chain liability extends,what penalties could be imposed and exactly which parties would be affected. In short, clear policy guidelines are needed to ensure consistent application of chain liability in practice [2].
At present,the enforcement agencies— such as the police and the ILT— are working together with the Public Prosecution Service to establish an enforcement framework. This framework will outline the kinds of evidence required to show that senders, freight forwarders and (sub)contractors knew or should have known that the transport services they commissioned were in breach of Regulation (EC) 1072/2009 and thus of Article 2.14 Wwg. This will clarify for all parties involved what chain liability entails and how they may be implicated. To the best of my knowledge, the OM has not yet enforced chain liability under this provision, nor is there any case law available on it. For the time being parties in the chain have the opportunity to adjust their operations with this chain liability in mind. What practical considerations should one focuson?
Responsibility of the principal
The tightened legislation undoubtedly places an additional responsibility on the shipper, freight forwarder or principal higher up the chain. These parties must now actively verify whether the carrier they (intend to) work with meets alllegal requirements. This includes checking, for instance, whether the carrier holds the correct licences and ensuring there are no infringements such asillegal cabotage or driving without a valid licence. In principle, the NIWO (Netherlands National and International Road Transport Organisation) website makes it possible to check immediately whether a carrier holds a valid transport licence, but this applies only to Dutch carriers. For foreign carriers, their licence must always be requested— something that is often already done in practice. It may be asking too much, however, to expect each licence tobe verified with the issuing authority in every individual Member State. Additionally, a (regular) principal can of course influence the scheduling of cabotage operations with a particular carrier, especially where there is an intensive commercial relationship between a shipper and a dedicated carrier. Further, within the same corporate group, it is common for a freight forwarder (the“expediteur b.v.”) to accept orders from clients and then subcontract these to a carrier [3].
In this scenario, liability for illegal cabotage is more likelyt o arise than when subcontracting a one-off order. The in-house forwarder within the same group who outsources orders to its own carrier within that same group will find it difficult to claim ignorance of any illegal cabotage. In summary, businesses will need to intensify their due diligence. It is no longer enough to trust that a carrier has its affairs in order; an active investigation is required, and these checks should be documented.
Amending contractual arrangements?
In light of the new legislation, it is also advisable for businesses to revise their framework agreements and other contracts. These documents should contain clauses (such as indemnification provisions) that safeguard them against liability for a carrier’s violations. This is particularly pertinent for shippers making use of freight exchanges, where the risk of fraud tends to be higher. Failure to comply properly with the rules when subcontracting transport assignments— or indeed when hiring workers—can result in substantial (financial) risks, such as fines, wage claims, and the aforementioned criminal prosecution. To minimise these risks, it is crucial to include contractual provisions with carriers andtheir subcontracted hauliers. This goes beyond a general indemnification clause; specific conditions should be drafted to ensure the carrier’s compliance with licensing requirements, cabotage rules, and driving and restperiods. It isequally critical that these clauses be supported by additional measures, such as supervision and clear protocols on how to handle any misconduct. Only through careful and meticulous drafting can companies ensure that, should infringements occur, any resulting fines or claims can be effectively challenged. Naturally, a principal may agree with a carrier to be indemnified for any fines under Article 2.14 Wwg. However, such an indemnity would only apply between the parties who sign the framework agreement and not vis-à-vis government authorities. In principle, it offers no defence against criminal prosecution. This means that while the principal cannot escape the fine itself, it can attempt to recover the amount from its carrier. Regularly check whether your contracts and conditions are up to date. Chain liability can arise even in short-term or one-off collaborations.
Footnotes
[1] Explanatory Memorandum (Memorie van Toelichting), House of Representatives (Tweede Kamer), Parliamentary Session 2021–2022, 36 155,No. 3.
[2] Note in response to the report 36 155, Amendment of the Road Transport of Goods Act, the Passenger Transport Act 2000 and the Economic Offences Act for the implementation of Regulation (EU) 2020/1055 of the European Parliament and of the Council of 15 July 2020 amending Regulations (EC) Nos 1071/2009,1072/2009 and (EU) 1024/2012 to adapt them to developments in the road transport sector (OJ EU 2020, L 249).
[3] This does not involve own-account transport. Within many transportcompanies, there is a Dutch forwarding entity that takes on orders and then distributes these to domestic and foreign transport companies within the group. For example, Group X operates Forwarding Company X, and then Transport Company NL, Poland or Romania, each under the X name. However, to distribute liabilit yeffectively, different legal entities are used. My point is that, in the event of a Wwg inspection, the forwarding entity is at greater risk. That is different from a situation in which Forwarding Company Y (a completely separate business) directly assigns a job to Carrier X. If Forwarding Company Y only occasionally works with Carrier X, in my view it is difficult to hold Y liable for illegal cabotage.
This article previously appeared in Weg & Wagen, 20 november 2024, https://www.sva.nl/blog/weg-wagen-6/aanscherpingen-ketenaansprakelijkheid-wegvervoer-per-2024-468.
