Court of Justice clarifies that Posted Workers Directive applies (and how) to drivers in international road transport of goods
Today, the Grand Chamber of the Court of Justice handed down its judgment in Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV and Others (C-815/18), a preliminary ruling requested by the Supreme Court of the Netherlands (Hoge Raad der Nederlanden) on whether and how the Posted Workers Directive 96/71 applies to drivers in international road transport.
The request was made in a case concerning three different transport companies which have the same shareholder, namely Van den Bosch Transporten BV (registered in the Netherlands), Van den Bosch GmbH (Germany), and Silo-Tank Kft (Hungary).
The Dutch company concluded a number of charter contracts with both the German and Hungarian companies for international road transport of goods. The German and Hungarian companies employed drivers to carry out those contracts. Most of the shift of the drivers started and ended in Erp (the Netherlands), the seat of the Dutch company, but most of those transport operations also took place outside the territory of the Netherlands. The Netherlands Federation of Trade Unions brought an action against all three companies, claiming that they had acted contrary to Directive 96/71 because their drivers were posted workers to whom the basic conditions of employment under the Dutch ‘Goods Transport’ collective labour agreement should have been applied.
In its judgment today, the Court of Justice has made clear, firstly, that Directive 96/71 is applicable to the transnational provision of services in the road transport sector. According to the Court of Justice, the fact that the legal basis of that Directive does not include provisions relating to transport cannot therefore exclude from its scope the transnational provision of services in the sector of road transport activities, in particular goods transport.
Moreover, the Court of Justice has ruled that, when applied to these kind of services, the Directive must be interpreted as follows:
- Under Article 1(1) and (3), and Article 2(1) of the Directive, drivers in the international road transport sector working under a charter agreement between his employer in one Member State and undertaking in another Member State (where he or she does not habitually work), is a posted worker. The performance of the work must however have a ‘sufficient connection’ with that territory, and that is determined by carrying out an overall assessment of: the degree of intensity of the link between the worker’s activities and territory of the Member State in which he is working; the nature of the worker’s activities there; and what proportion of his or her activities makes up the transport service as a whole in that territory.
- The fact that an international lorry driver, who has been placed by an undertaking established in one Member State at the disposal of an undertaking established in another Member State, receives the instructions inherent in his duties, or that it begins or ends those duties at the head office of that second undertaking, shall not in itself be sufficient to consider that that driver has been posted to the territory of that other Member State within the meaning of Directive 96/71, where the performance of that driver’s work does not, on the basis of other factors, present a sufficient link with that territory.
- Under Article 1(1) and (3) and Article 2(1) of the Directive, the existence of a ‘group link between the undertakings which are parties to the contract for the posting of workers’ is not, as such, relevant for the purposes of assessing the existence of a posting of workers.
- Under Article 1(1) and (3) and Article 2(1) of the Directive, a worker who is employed as a driver in the road transport sector and who, in the context of a contract of employment between the undertaking employing him, is established in a Member State, and an undertaking situated in another Member State, carries out cabotage operations in the territory of a Member State other than the Member State in whose territory he habitually works must, in principle, be regarded as posted in the territory of the Member State in which such operations are carried out. The duration of the cabotage transport operation is a factor of no relevance in assessing the existence of such a posting, without prejudice to the possible application of Article 3(3) of this Directive.
- Under Article 3(1) and (8) of the Directive, the question whether a collective agreement has been declared generally applicable must be assessed by reference to the applicable national law. These provisions concern collective labour agreements which have not been declared generally applicable, but compliance with which is a precondition for the undertakings covered by them to be exempted from the application of another collective labour agreement which has been declared generally applicable and the provisions of which are substantially identical to those of that other collective labour agreement.
The judgment is available here.