The posting of road drivers carrying out road transport contracts constituting international services

Published on Wednesday 20 April 2022

The posting of road drivers carrying out road transport contracts constituting international services

Regulatory developments in Europe and France

Directive (EU) No. 2020/1057 of 15 July 2020 provides for specific arrangements for the application of the posting of road drivers engaged in the international provision of transport services.

It establishes, in particular in its Article 1, specific rules for the posting application for drivers employed by road transport companies.

These rules apply where drivers are performing a contract for the carriage of goods or passengers constituting an international service (within the meaning of Article 1(3)(a) of Directive 96/71/EC).

 
Article 1 of the Directive thus constitutes a "lex specialis" on the posting of road drivers. It has been transposed into national law:

  • by articles at the legislative level (Articles L.1332-1 to L.1332-8 of the French Transport Code), which set out the general framework and principles of the new regulations;

Please note: The provisions of the French Labour Code governing the posting of workers, which are not expressly derogated from by the transposition texts, continue to apply.

The new rules in force

Road transport operations to which the posting rules apply and exempted situations

1 - The rules on posting apply when the driver carries out:

- cabotage operations, as defined in Regulations (EC) No. 1072/2009 and (EC) No. 1073/2009. This is any transport of goods (loading, unloading) between two points on the national territory, carried out by a company established outside the national territory.

- non-bilateral international transport operations, characterised by the fact that the driver carries out an international transport operation outside the Member State of establishment of his company of employment and that this transport operation does not originate or terminate in the State of establishment of his company.

2 - The rules on posting do not apply when the driver carries out:

- so-called "transit" journeys on the national territory without loading or unloading goods or picking up or setting down passengers;

- the initial or final road legs of a combined transport operation, if these road legs, taken individually, constitute bilateral transport operations;

- bilateral transport operations. These operations consist of transporting goods or passengers on the basis of a transport contract:

  • from the Member State of establishment of the company employing the driver, to another Member State or to a third country

or

  • from another Member State or a third country to the Member State of establishment of the company employing the driver.

Note : a bilateral transport operation may include additional activities that are exempt from the posting rules. These are loading and/or unloading operations carried out in the countries crossed during the bilateral transport. The number of such operations is limited: one operation on the outward journey and one on the return journey or two operations on the return journey if none were carried out on the outward journey.

 

The exemptions for additional activities apply until the date from which intelligent tachographs must be installed in vehicles, i.e. 21/8/2023. From this date onwards, exemptions will only apply to drivers using vehicles equipped with V2 intelligent tachographs.

 

This is explained in the European Commission's Q&A document, which should be referred to. It is available at: https://transport.ec.europa.eu/transport-modes/road/mobility-package-i/posting-rules_en

3 - Declarative and administrative formalities  

  • For companies established in the European Union

Companies established in the European Union which second road drivers to French territory to perform a transport contract falling within the scope of Directive 2020/1057/EU:

- must lodge a posting declaration for each driver concerned by means of the Internal Market Information (IMI) system, via a dedicated public portal made available by the European Union services, at the following address: https://www.postingdeclaration.eu/landing

These companies should no longer use the national SIPSI portal provided by the French Ministry of Labour. All certificates filed before 2 February 2022 are no longer valid from that date.

- must provide the host authorities, at their request, with the documents provided for in the Directive for checking compliance with the rules on the posting of drivers by means of IMI (cf. paragraph 4) after the transport service has been carried out which gave rise to the posting of the driver. In return, companies are no longer obliged to appoint a representative on the national territory.

 

  • For companies established outside the European Union

Companies established in third countries cannot at this stage file a posting declaration through the IMI system. The European Commission has provided that they may do so at a later stage.

Consequently, these companies must, as before:

  • submit a posting certificate using the national SIPSI system. This transitional provision is provided for in Article 2 of Decree No. 2022-104 of 1 February 2022. https://www.sipsi.travail.gouv.fr/#/auth/login
  • appoint a representative on French territory responsible for liaising with the officials responsible for inspection, during and up to 18 months after the completion of the transport service giving rise to the posting of the driver.

4 - Documents to be presented during inspections

  • During the performance of the transport service giving rise to the posting application

The transport company must ensure that the driver has the following data or documents onboard the vehicle, in paper or electronic form, for presentation to road transport inspection officers:

  • a copy of the posting declaration filed on IMI;
  • evidence of transport operations carried out on the national territory (electronic consignment notes (e-CMR) or evidence referred to in Article 8(3) of Regulation (EC) No. 1072/2009 of 21 October 2009);
  • tachograph records.

 

  • After the performance of the transport service giving rise to the posting application

Other documents (such as the employment contract or pay slips) may be requested from the company by the authorities of the host State, through IMI, after the transport operations have been completed.

The company must then submit these documents via IMI within eight weeks. Failing this, the national authorities of the State of establishment will contact the company to obtain the documents.                   

 

  • Documents to be presented during inspections for transport operations not giving rise to the posting application

In order to justify that the transport operation is not subject to the posting application, the transport company must ensure that the driver has the following data or documents onboard the vehicle, in paper or electronic format, for presentation to the officials responsible for inspecting road transport:

  • tachograph records.
  • proof of transport operations carried out on the national territory (electronic consignment notes (e-CMR) or proof referred to in Article 8(3) of Regulation (EC) No 1072/2009 of 21 October 2009);
  • Information on the new rules governing the posting of road workers is available on the websites

Information on the new rules governing the posting of road workers is available on the websites

 

The posting of road and sea transport workers not covered by the "lex specialis"

The following workers are not affected by the provisions of the "lex specialis":

  • road drivers seconded by temporary work companies (case provided for in Article L.1262-2 of the French Labour Code) or in the context of being made available to a company in the same group as their employing company (case provided for in 2° of Article L.1262-1 of the French Labour Code)
  • drivers and sailors from other modes of land transport, in particular the river sector, whatever the situation of their posting: provision of a service (case provided for in 1° of Article L. 1262-1 of the French Labour Code), posting by a temporary work company, or in the context of posting to a company in the same group as their employment company.

Their situation continues to be governed by Articles R.1331-1 to R.1331-8 of the French Transport Code which establish specific rules for the application of posting in France in accordance with the law of 6 August 2015 for growth, activity and equal economic opportunities and which remain in force.  

 

Consequently, companies seconding employees in these situations must:

  • submit a certificate of posting using the national SIPSI system to the following address:  https://www.sipsi.travail.gouv.fr/#/auth/login
  • designate a representative on French territory responsible for liaising, during the period of posting and up to 18 months following the completion of the transport service, with the officials responsible for monitoring road transport.

 

Further information is available on the French Ministry of Labour website

                       

The provisions of the Labour Code governing the posting of workers, which are not expressly derogated from, continue to apply.

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