Section 2. Posting of drivers
Article 1 – Subject matter
This Section lays down requirements for road haulage operators established in one of the Parties which, in the framework of the transport of goods, post drivers to the territory of the other Party in accordance with Article 3 of this Section.
Nothing in this Section shall prevent a Party from applying measures to regulate the entry of natural persons into, or their temporary stay in, its territory, including measures necessary to protect the integrity of its borders and to ensure the orderly movement of natural persons across them, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to the other Party under the terms of this Section. The sole fact of requiring a visa for natural persons of certain countries and not for those of others shall not be regarded as nullifying or impairing benefits under this Section.
Nothing in this Section shall affect the application on the Union territory of the Union rules on the posting of drivers in road transport to Union road haulage operators.
Article 2 – Definitions
For the purposes of this Section, “posted driver” means a driver who, for a limited period, carries out his or her work in the territory of a Party other than the Party in which the driver normally works.
Article 3 – Principles
1. The provisions of this Section apply to the extent that the road haulage operator posts drivers to the territory of the other Party on its account and under its direction, under a contract concluded between the road haulage operator making the posting and the party for whom the transport services are intended, and those drivers operate in the territory of that Party, provided that there is an employment relationship between the road haulage operator making the posting and the driver during the period of posting.
2. For the purposes of paragraph 1, a posting shall be considered to start when the driver enters the territory of the other Party for the loading and/or unloading of goods and to end when the driver leaves the territory of that Party.
For the purposes of paragraph 1, in the case of posting in the Union, a posting shall, be considered to start when the driver enters the territory of a Member State for the loading and/or unloading of goods in that Member State and to end when the driver leaves the territory of that Member State.
3. Notwithstanding the paragraphs 1 and 2, a driver shall not be considered to be posted when performing transport operations, based on a transport contract, as defined in point (a) of Article ROAD.4(1) [Transport of goods between, through and within the territories of the Parties] of this Agreement.
4. A driver shall not be considered to be posted in the United Kingdom where the driver transits through the territory of the United Kingdom without loading or unloading of goods. For the Union, a driver shall not be considered to be posted in a Member State when the driver transits through the territory of that Member State without loading or unloading of goods.
Article 4 – Terms and conditions of employment
1. Each Party shall ensure, irrespective of which law applies to the employment relationship, that road haulage operators guarantee, on the basis of equality of treatment, to drivers who are posted to their territory the terms and conditions of employment covering the following matters which, in the Party or, in the case of the Union, in the Member State where the work is carried out, are laid down:
— by law, regulation or administrative provision; and/or
— by collective agreements or arbitration awards which have been declared universally applicable or otherwise apply in accordance with paragraph 4:
(a) maximum work periods and minimum rest periods;
(b) minimum paid annual leave;
(c) remuneration, including overtime rates; this point does not apply to supplementary occupational retirement pension schemes;
(d) health, safety and hygiene at work;
(e) protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people; and
(f) equality of treatment between men and women and other provisions on non-discrimination.
2. For the purposes of this Section, the concept of remuneration shall be determined by the national law and/or practice of the Party and, in the case of the Union, by the national law and/or practice of the Member State, to whose territory the driver is posted and means all the constituent elements of remuneration rendered mandatory by national law, regulation or administrative provision, or by collective agreements or arbitration awards which, in that Party or in that Member State, have been declared universally applicable or otherwise apply in accordance with paragraph 4.
3. Allowances specific to the posting shall be considered to be part of remuneration, unless they are paid in reimbursement of expenditure actually incurred on account of the posting, such as expenditure on travel, board and lodging. The road haulage operator shall reimburse the posted driver for such expenditure in accordance with the law and/or practice applicable to the employment relationship.
Where the terms and conditions of employment applicable to the employment relationship do not determine which elements of the allowance specific to the posting are paid in reimbursement of expenditure actually incurred on account of the posting or which are part of remuneration, then the entire allowance shall be considered to be paid in reimbursement of expenditure.
4. For the purpose of this Section, “collective agreements or arbitration awards which have been declared universally applicable” means collective agreements or arbitration awards which must be observed by all undertakings in the geographical area and in the profession or industry concerned.
In the absence of, or in addition to, a system for declaring collective agreements or arbitration awards to be of universal application within the meaning of the first part of this paragraph, each Party, or each Member State in the case of the Union, may, if they so decide, base themselves on:
— collective agreements or arbitration awards which are generally applicable to all similar undertakings in the geographical area and in the profession or industry concerned; and/or
— collective agreements which have been concluded by the most representative employers’ and labour organisations at national level and which are applied throughout national territory.
Equality of treatment, within the meaning of paragraph 1, shall be deemed to exist where national undertakings in a similar position:
(i) are subject, in the place in question or in the sector concerned, to the same obligations as posting undertakings as regards the matters listed in the first subparagraph of paragraph 1; and
(ii) are required to fulfil such obligations with the same effects.
Article 5 – Improved access to information
1. Each Party or, in the case of the Union, each Member State shall publish the information on the terms and conditions of employment, in accordance with national law and/or practice, without undue delay and in a transparent manner, on a single official national website, including the constituent elements of remuneration as referred to in Article 4(2) and all the terms and conditions of employment in accordance with Article 4(1).
Each Party or, in the case of the Union, each Member State shall ensure that the information provided on the single official national website is accurate and up to date.
2. Each Party or, in the case of the Union, each Member State shall take the appropriate measures to ensure that the information mentioned in paragraph 1 is made generally available free of charge in a clear, transparent, comprehensive and easily accessible way at a distance and by electronic means, in formats and in accordance with web accessibility standards that ensure access to persons with disabilities and to ensure that competent national bodies are in a position to carry out their tasks effectively.
3. Where, in accordance with national law, traditions and practice, including respect for the autonomy of social partners, the terms and conditions of employment referred to in Article 4 are laid down in collective agreements in accordance with Article 4(1), each Party or, in the case of the Union, each Member State shall ensure that those terms and conditions are made available in an accessible and transparent way to service providers from the other Party and to posted drivers, and shall seek the involvement of the social partners in that respect. The relevant information should, in particular, cover the different minimum rates of pay and their constituent elements, the method used to calculate the remuneration due and, where relevant, the qualifying criteria for classification in the different wage categories.
4. Where, contrary to paragraph 1, the information on the single official national website does not indicate which terms and conditions of employment are to be applied, that circumstance shall be taken into account in accordance with national law and/or practice in determining penalties in the event of infringements to this Section, to the extent necessary to ensure the proportionality of those penalties.
5. Each Party or, in the case of the Union, each Member State shall indicate the bodies and authorities to which drivers and road haulage operators can turn for general information on national law and practice applicable to them concerning their rights and obligations within their territory.
Article 6 – Administrative requirements, control and enforcement
1. Each Party or, in the case of the Union, each Member State may only impose the following administrative requirements and control measures with respect to the posting of drivers:
(a) an obligation for the operator established in the other Party to submit a posting declaration to the national competent authorities of the Party or, in the case of the Union, of the Member State to which the driver is posted at the latest at the commencement of the posting, using from 2 February 2022 a multilingual standard form of the public interface connected to the EU Internal Market Information System136 for administrative cooperation (IMI); that posting declaration shall consist of the following information:
(i) the identity of the operator, at least in the form of the number of the valid licence where this number is available;
(ii) the contact details of a transport manager or other contact person in the Party of establishment or, in the case of the Union, in the Member State of establishment to liaise with the competent authorities of the host Party or in, the case of the Union, of the Member State in which the services are provided and to send out and receive documents or notices;
(iii) the identity, the address of the residence and the number of the driving licence of the driver;
(iv) the start date of the driver’s contract of employment, and the law applicable to it;
(v) the envisaged start and end date of the posting; and
(vi) the number plates of the motor vehicles;
(b) an obligation for the operator to ensure that the driver has at his or her disposal in paper or electronic form and an obligation for the driver to keep and make available when requested at the roadside:
(i) a copy of the posting declaration submitted, via the IMI system from 2 February 2022;
(ii) evidence of the transport operations taking place in the host Party, such as an electronic consignment note (e-CMR); and
(iii) the tachograph records and in particular the country symbols of the Party or, in the case of the Union, of the Member State in which the driver was present when carrying out transport operations, in accordance with registration and record- keeping requirements under Section 2 of Part B and Section 4 of Part B;
(c) an obligation for the operator to send, from 2 February 2022 via the public interface connected to the IMI system, after the period of posting, at the direct request of the competent authorities of the other Party or, in the case of the Union, of a Member State where the posting took place, copies of documents referred to in point (b) (ii) and (iii) of this
136 Established by Regulation (EU) 1024/2012.
paragraph as well as documentation relating to the remuneration of the driver in respect of the period of posting, the employment contract or an equivalent document, time-sheets relating to the driver’s work, and proof of payments.
The operator shall send the documentation, from 2 February 2022 via the public interface connected to the IMI system, no later than eight weeks from the date of the request. If the operator fails to submit the requested documentation within that time period, the competent authorities of the Party or, in the case of the Union, the Member State where the posting took place may request, from 2 February 2022 via the IMI system, the assistance of the competent authorities of the Party of establishment or, in the case of the Union, the Member State of establishment. When such a request for mutual assistance is made, the competent authorities of the Party of establishment or, in the case of the Union, the Member State of establishment of the operator shall have access to the posting declaration and other relevant information submitted by the operator, from 2 February 2022 via the public interface connected to the IMI system.
The competent authorities of the Party of establishment or, in the case of the Union, of the Member State of establishment shall ensure that they provide the requested documentation to the competent authorities of the Party or, in the case of the Union, to the competent authorities of the Member State where the posting took place, from 2 February 2022 via the IMI system, within 25 working days from the day of the request for mutual assistance.
Each Party shall ensure that the information exchanged by the competent national authorities or transmitted to them shall be used only in respect of the matter or matters for which it was requested.
Mutual administrative cooperation and assistance shall be provided free of charge.
A request for information shall not preclude the competent authorities from taking measures to investigate and prevent alleged breaches of this Section.
3. For the purpose of ascertaining whether a driver is not to be considered to be posted pursuant to Article 1, each Party may only impose as a control measure an obligation for the driver to keep and make available, where requested at the roadside check, in paper or electronic form, the evidence of the relevant transport operations, such as an electronic consignment note (e-CMR), and tachograph records, as referred to in point (b)(iii) of paragraph 2 of this Article.
4. For the purposes of control, the operator shall keep the posting declarations referred to in point (a) of paragraph 2 up to date, from 2 February 2022 in the public interface connected to IMI.
5. The information from the posting declarations shall be saved, from 2 February 2022, in the IMI repository for the purpose of checks for a period of 24 months.
6. The Party or, in the case of the Union, the Member State to whose territory the driver is posted and the Party or, in the case of the Union, the Member State from which the driver is posted shall be responsible for the monitoring, control and enforcement of the obligations laid down in this Section and shall take appropriate measures in the event of failure to comply with this Section.
7. Each Party or, in the case of the Union, the Member States shall ensure that inspections and controls of compliance under this Article are not discriminatory and/or disproportionate, whilst taking into account the relevant provisions of this Section.
8. For the enforcement of the obligations under this Section, each Party or, in the case of the Union, the Member States shall ensure that there are effective mechanisms for posted drivers to lodge complaints against their employers directly, as well as the right to institute judicial or administrative proceedings, also in the Party in whose territory the drivers are or were posted, where such drivers consider they have sustained loss or damage as a result of a failure to apply the applicable rules, even after the relationship in which the failure is alleged to have occurred has ended.
9. Paragraph 8 shall apply without prejudice to the jurisdiction of the courts of each Party or, in case of the Union, the Member States as laid down, in particular, in the relevant instruments of Union law and/or international conventions.
10. Each Party or, in the case of the Union, the Member States shall lay down the rules on penalties applicable to infringements of national provisions adopted pursuant to this Section and shall take all measures necessary to ensure that they are implemented and complied with. The penalties provided for shall be effective, proportionate and dissuasive.
Each Party shall notify those provisions to the other Party by 30 June 2021. They shall notify without delay any subsequent amendments to them.
Article 7 – Use of the IMI system
1. As from 2 February 2022, information, including personal data, referred to in Article 6 shall be exchanged and processed in the IMI system, provided that the following conditions are fulfilled:
(a) the Parties provide safeguards that data processed in the IMI system are only used for the purpose for which they were initially exchanged;
(b) any transfer of personal data to the United Kingdom under this Article may only take place in accordance with point (c) of Article 23(1) of Regulation (EU) 1024/2012137; and
(c) any transfer of personal data to the Union under this Article may only take place in accordance with the data protection rules on international transfers of the United Kingdom.
2. The competent authorities in each Party shall grant and revoke appropriate access rights to IMI users.
3. IMI users are allowed to access personal data processed in the IMI system only on a need-to- know basis and exclusively for the purpose of implementation and enforcement of this Section.
4. Each Party or, in the case of the Union, each Member State, may allow the competent authority to provide national social partners by other means than the IMI system with relevant information available in the IMI system to the extent necessary for the purpose of checking compliance with posting rules and in accordance with national law and practices, provided that:
(a) the information relates to a posting to the territory of the Party or, in the case of the Union, of the Member State, concerned; and
(b) the information is used exclusively for the purpose of enforcing the posting rules.
137 Regulation (EU) No 1024/2012 of the European Parliament and of the Council of 25 October 2012 on administrative cooperation through the Internal Market Information System and repealing Commission Decision 2008/49/EC (‘the IMI Regulation’ ) OJ L 316, 14.11.2012, p. 1
5. The Specialised Committee on Road Transport shall set the technical and procedural specifications of the use of the IMI system by the United Kingdom.
6. Each Party shall participate in the operating costs of the IMI system. The Specialised Committee on Road Transport shall determine the costs to be borne by each Party.
