Opinion of the Advocate General — ECLI:EU:C:2021:371
Date: 2021-05-06
Language of the case: Hungarian
Subject matter: Right of establishment;Freedom to provide services;Social Policy;Transport
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Hungary

summary, by its very logic, Article 3(1) of the Posted Workers Directive comes rather close to a lex specialis concerning applicable law. (27) It is bound to lead to situations in which either elements of the substantive law of the host Member State will be applied in a dispute in the home Member State, or vice versa. Indeed, in the latter scenario, if the employees were to seek the legal protection of their EU law based rights in the Member State of their posting, the courts of that Member State would also likely be called on to apply elements of the substantive law of the home Member State, since that would be the law applicable to the employment contract in general. 46. In conclusion, I propose that the Court reply as follows: Article 3(1) of Directive 96/71 must be interpreted as meaning that an infringement of the host Member State’s national legislation on ‘minimum rates of pay’ can be relied upon in proceedings brought in the home Member State, assuming that the latter courts have jurisdiction to hear the case, for instance by virtue of the employer being domiciled in that State. C. Question 2 47. By its second question, the referring court essentially asks whether per diems intended to cover the costs incurred during the posting of a worker abroad must be regarded as forming part of the worker’s wage. 48. That question arises due to the disagreement, between the parties in the main proceedings, as to whether the per diems form part of the applicants’ ‘minimum pay’, within the meaning of Article 3(1) of the Posted Workers Directive. Pursuant to Article 3(7) of that directive, that can be the case only where an allowance falling thereunder is ‘specific to the posting’. In such circumstances, the Posted Workers Directive requires the allowance at issue to be considered part of the posted worker’s wage. However, that starting assumption is rebutted if the allowance in question is ‘paid in reimbursement of expenditure actually incurred on account of the posting, such as expenditure on travel, board and lodging’. It is the interpretation of those requirements in relation to the per diems at issue in the present case that the referring court seeks guidance on. 49. It should be recalled that Article 3(7) of the Posted Workers Directive contains what the Court has described as the ‘“rule-exception” relationship’ for taking account of allowances and supplements. (28) That relationship consists of two parts. The first part contains the default rule: ‘allowances specific to the posting shall be considered to be part of the minimum wage’. That rule is subject to the second part, which lays down an overriding exception: an allowance forms part of the minimum wage ‘unless [said allowance is] paid in reimbursement of expenditure actually incurred on account of the posting, such as expenditure on travel, board and lodging.’ (29) 50. In other words, whether an allowance is ‘specific to the posting’, within the meaning of the default rule in the first part of the second subparagraph of Article 3(7) of the Posted Workers Directive is not necessarily the decisive element to be established at the outset. That is because that determination will in practical terms only be relevant if the exception in the second part of that subparagraph is not triggered. Indeed, as a result of that construction, it is the exception that decides on whether the allowance at issue falls within the scope of that provision in the first place. 51. On the basis of the limited information in the case file, I agree with the defendant’s position that, in the present case, the per diems do not appear to be ‘paid in reimbursement of expenditure actually incurred on account of the posting’. (30) 52. It appears well established that the per diems, which range from EUR 34 to EUR 44 depending on the period of posting, are paid as lump sums and without the need for proof of expenditure. Apparently, that is because the cost of accommodation and food are considered eligible without proof under Hungarian law. 53. In view of the consequent lack of any hypothecation between the per diems and the costs arising from the posting, I find it difficult to accept the applicants’ argument that the diems are paid for expenditure actually incurred by virtue of the posting. Indeed, while certainly likely, without proof of how the per diems were spent, there is no evidence to suggest that the applicants in fact spent the per diems in the first place, and, even if they did, whether the per diems were spent to cover expenditure arising on account of their posting. 54. The criterion is one of expenditure actually incurred on account of their posting. I emphasise the word ‘actually’ because, to my mind, it is clear that its inclusion in the second subparagraph of Article 3(7) of the Posted Workers Directive implies the need for presentation of some form of proof that links the ‘reimbursement’ at issue with expenditure ‘incurred on account of the posting’. The kind of proof to be presented is of secondary nature. Indeed, the Court has previously held that the method of covering expenditure as a result of the posting has no bearing on the legal classification thereof. (31) 55. Having suggested that the exception to the default rule is unlikely to apply, the question that remains is whether the default rule itself applies, that is to say: whether per diems are in fact ‘allowances specific to the posting’ that shall accordingly be considered part of the minimum wage. 56. While that issue is ultimately for the national court to ascertain, it would appear to me that the answer ought to be in the affirmative for two reasons. First, it has been stated that the employees indeed receive per diems for the duration of their posting because they are actually being posted. Second, since they are in no way invoiced or reimbursed for the costs actually incurred, the lump sum (that are per diems) indeed becomes a part of the wage, to be used by the employee as he sees fit. It is therefore, in practical terms, indistinguishable from his normal salary. 57. In the light of the foregoing, the logic of the default rule of Article 3(7) of the Posted Workers Directive appears applicable here: any payment received because of the posting, but which cannot be singled out as a reimbursement of specific costs, is simply part of the (minimum) wage. 58. The information brochure that both the referring court and the applicants refer to, which allegedly expressly explains that the purpose of the per diems is to cover ‘expenditure incurred abroad’, does not affect that conclusion. Leaving aside for now the questionable evidentiary value of a document external to the applicants’ employment contracts for the purposes of interpreting the nature and purpose of the per diems, the mere designation of an expense for a certain purpose does not change the lack of any hypothecation of the per diems to actual expenditure. If anything, the information brochure clearly indicates that the nature of the lump sum of the per diems is specifically designed to cover a broad array of expenses while abroad, most of which are likely indeed to arise due to the posting, but some of which may not. 59. That being said, even if one were to take into account the information brochure, there would still be no evidence of any link between possible costs incurred and the payment of the per diems. Therefore, the mere fact that the applicants’ employment contract may or may not attach a certain purpose to the per diems has limited bearing on the classification of those allowances in reimbursement of costs ‘actually incurred on account of the posting’, within the meaning of Article 3(7) of the Posted Workers Directive. 60. In conclusion, I propose that the Court answer Question 2 as follows: Per diems that are paid without proof of expenditure, and which remains for the national court to verify, are not paid in reimbursement of expenditure actually incurred on account of the posting, within the meaning of Article 3(7) of Directive 96/71/EC. Provided that the per diems at issue in the present proceedings are also paid as an allowance specific to the posting, they shall be considered to be part of the minimum wage. D. Question 3 61. By its third question, the referring court seeks guidance on the compatibility of the fuel economy allowance with Article 10 of Regulation No 561/2006. That provision prohibits any payment which encourages dangerous driving. 62. The applicants maintain that the fuel economy allowance is in breach of Article 10 of Regulation No 561/2006. They explain that that allowance consists of a formula which rewards the drivers of transport vehicles for a lower fuel consumption per distance travelled than that which is considered ‘standard’ for that distance. Accordingly, in order to achieve the fuel savings required to obtain the allowance, drivers are encouraged to adopt a driving behaviour which represents a risk for road safety. 63. In line with the majority of views submitted to the Court, on the basis of the information provided in the present proceedings, I do not share that conclusion. 64. At the outset, it should be recalled that Regulation No 561/2006 pursues two objectives. That is to say, the improvement of working conditions and general road safety. (32) Furthermore, Article 1 of that regulation explains that it also aims at promoting improved working practices in the road transport industry. As such, to the extent that the fuel economy allowance contained in the applicants’ employment contracts has the potential to undermine general road safety, it is necessary to assess whether that allowance is precluded by Article 10 of Regulation No 561/2006. 65. Article 10(1) of Regulation No 561/2006 prohibits transport undertakings from giving drivers any payment, even in the form of a bonus or wage supplement, that (i) is related to distances travelled and/or the amount of goods carried, and (ii) if that payment is of such a kind as to endanger road safety and/or encourages infringement of that regulation. 66. First, there is no sufficient evidence in the case file to establish that the fuel economy allowance clearly ‘relates’ to distance travelled and/or the amount of goods carried. Naturally, an indirect link exists between distance/weight carried and fuel consumption. That cannot be denied. One need not be a physicist to understand that mass and energy relate, and that a certain amount of energy is necessary to move mass over a certain distance. 67. However, there is more to the consumption of fuel than mere distance travelled and weight carried. Indeed, as the French Government explains, fuel consumption is multifactorial. For instance, ambient and environmental conditions, tyre pressure, driving style, and even aspects such as the use of air conditioning devices may all have an impact on the fuel consumption of drivers. (33) None of those aspects are discussed by the referring court. In fact, that court is completely silent on why it considers the fuel economy allowance to ‘relate to’ distance travelled and/or the amount of goods carried. In the absence of such an explanation, I am not convinced that the fuel economy allowance, in the abstract, even falls within the scope of Article 10(1) of Regulation No 561/2006 in the first place. 68. Second, and purely for the sake of argument, even if the fuel economy allowance fell within the scope of Article 10 of Regulation No 561/2006, no evidence has been presented by the applicants that that allowance as such actually incentivises dangerous driving. Intuitively, one would instead assume that such an allowance might in fact have the opposite result; dangerous driving is more often the result of driving fast, accelerating too much or in the wrong places, with such activities demanding more, rather than less, fuel. 69. The referring court provides the example of a driver freewheeling down a hill for as long as possible to save fuel. It is indeed possible to imagine that, in some scenarios, a truck freewheeling on a motorway, be it in the right-hand lane, but at a very low speed, or even in the left-hand lane, overtaking another truck for several kilometres, precisely because it is trying to save fuel, is indeed perhaps not indicative of overall road safety. (34) However, without any further details or explanation, there is simply no automatic causality between such behaviour and a fuel economy allowance. 70. This is not to say that there may not be contributing factors which, in practice, could have the effect of turning an otherwise innocent financial encouragement into an incentive to drive dangerously. As the European Commission correctly observes, if the remuneration encouraging fuel saving were based on a standard defined in such a way as to make the grant of a flat-rate premium not conditional on greater fuel economy in relative terms (for example, when the total annual consumption is below the ‘standard’ level by at least 5%), but on absolute consumption over a certain distance (such as by paying a premium of EUR 50 per 100 litres of fuel saved), then there may be instances where a driver feels encouraged to drive less safely. Similarly, if the reimbursement requirement for ‘additional costs’ arising from fuel consumption above the ‘standard’ level calculated is wholly unreasonable, a driver would have a certain indirect incentive to save as much fuel as possible, irrespective of the road, environmental or geographical conditions in which he is being asked to operate. (35) 71. What is clear is that neither the referring court, nor the interested parties, have identified or submitted anything which may substantiate those considerations. Therefore, I find it impossible to conclude that, in the abstract, a fuel economy allowance would be per se precluded by Article 10 of Regulation No 561/2006. 72. In conclusion, I propose that the Court answer Question 3 as follows: Article 10 of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 must be interpreted as not precluding, in itself, a fuel economy allowance that may be paid to a posted worker by his or her employer when a standard rate of fuel consumption is not exceeded. Whether, in the particular circumstances of a case, the fuel economy allowance nonetheless must be understood as related to distances travelled and/or the amount of goods carried and is of such a kind as to endanger road safety and/or encourages infringement of Regulation No 561/2006 falls to the national court to determine. E. Question 5 73. By its fifth question, the referring court asks whether a directive that has not been transposed into national law can create obligations incumbent on an individual and, therefore, constitute, in and of itself, the basis for an action against an individual in a dispute brought before a national court. 74. By that question, the referring court wishes to know, in essence, whether directives can have horizontal direct effect. That being said, the referring court provides no explanation as to why that question is asked and how it is at all relevant in the main proceedings. Although one does not need to stretch their imagination too far to deduce that the referring court probably means the Posted Workers Directive, there is nevertheless no basis for the Court to determine which provision the referring court seeks guidance on, and, most importantly, why the resolution of that question is necessary for the underlying proceedings. 75. In this regard, it must be recalled that Article 94 of the Rules of Procedure of the Court of Justice, which determines the content of requests for a preliminary ruling, states in point (c) that the latter must, inter alia, contain ‘a statement of the reasons which prompted the referring court or tribunal to inquire about the interpretation or validity of certain provisions of European Union law, and the relationship between those provisions and the national legislation applicable to the main proceedings’. 76. Since the referring court has failed to fulfil this obligation, I propose that the Court consider Question 5 to be inadmissible. V. Conclusion 77. I propose that the Court answer the questions referred for a preliminary ruling by the Gyulai Törvényszék (Gyula High Court, Hungary) as follows: Question 4 Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services must be interpreted as applying to the transnational provision of services in the road transport sector. Question 1 Article 3(1) of Directive 96/71 must be interpreted as meaning that an infringement of the host Member State’s national legislation on ‘minimum rates of pay’ can be relied upon in proceedings brought in the home Member State, assuming that the latter courts have jurisdiction to hear the case, for instance by virtue of the employer being domiciled in that State. Question 2 Per diems that are paid without proof of expenditure, and which remains for the national court to verify, are not paid in reimbursement of expenditure actually incurred on account of the posting, within the meaning of Article 3(7) of Directive 96/71. Provided that the per diems at issue in the present proceedings are also paid as an allowance specific to the posting, they shall be considered to be part of the minimum wage. Question 3 Article 10 of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 must be interpreted as not precluding, in itself, a fuel economy allowance that may be paid to a posted worker by his or her employer when a standard rate of fuel consumption is not exceeded. Whether, in the particular circumstances of a case, the fuel economy allowance nonetheless must be understood as related to distances travelled and/or the amount of goods carried and is of such a kind as to endanger road safety and/or encourages infringement of Regulation No 561/2006 falls to the national court to determine. Question 5 is inadmissible. 1 Original language: English. 2 Directive of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1). 3 Regulation of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (OJ 2006 L 102, p. 1). 4 Judgment of 1 December 2020, Federatie Nederlandse Vakbeweging (C‑815/18, EU:C:2020:976). 5 Ibid., paragraph 41. 6 Ibid., paragraphs 31 to 33. 7 Under Article 58 TFEU, the freedom to provide services, in relation to transport, is governed by the provisions of the title of the FEU Treaty devoted to transport, namely Articles 90 to 100 TFEU. 8 Judgment of 1 December 2020, Federatie Nederlandse Vakbeweging (C‑815/18, EU:C:2020:976, paragraph 37). See also my Opinion in Federatie Nederlandse Vakbeweging (C‑815/18, EU:C:2020:319, point 52) and, to that effect, judgments of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraphs 159 and 160), and of 8 December 2020, Poland v Parliament and Council (C‑626/18, EU:C:2020:1000, paragraphs 144 and 145). 9 See my Opinion in Federatie Nederlandse Vakbeweging (C‑815/18, EU:C:2020:319, point 51). 10 Judgment of 1 December 2020, Federatie Nederlandse Vakbeweging (C‑815/18, EU:C:2020:976, paragraph 40). 11 Directive of the European Parliament and of the Council of 15 July 2020 laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector and amending Directive 2006/22/EC as regards enforcement requirements and Regulation (EU) No 1024/2012 (OJ 2020 L 249, p. 49). 12 To that effect, judgment of 1 December 2020, Federatie Nederlandse Vakbeweging (C‑815/18, EU:C:2020:976, paragraph 39). 13 Ibid., paragraph 45 and the case-law cited. 14 Ibid., paragraphs 47 and 48. See also my Opinion in Federatie Nederlandse Vakbeweging (C‑815/18, EU:C:2020:319, points 97 and 102 to 104 and the case-law cited). 15 Judgment of 19 December 2019, Dobersberger (C‑16/18, EU:C:2019:1110). 16 Ibid., paragraphs 9 and 10. 17 Ibid., paragraph 31. 18 See recitals 5, 6, 13 and 14 of the Posted Workers Directive. To that effect, see also judgment of 18 December 2007, Laval un Partneri (C‑341/05, EU:C:2007:809, paragraphs 77). 19 Term aptly employed by Advocate General Szpunar in rebutting similar argument made by the Hungarian Government in his Opinion in Dobersberger (C‑16/18, EU:C:2019:638, point 60). 20 Recital 13 of the Posted Workers Directive. See also judgment of 18 December 2007, Laval un Partneri (C‑341/05, EU:C:2007:809, paragraph 81). 21 Regulation of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1). 22 Which does not appear to be the case because both the employer, as well as the employee, appear to be domiciled in Hungary. 23 To that effect, judgment of 12 October 2004, Wolff & Müller (C‑60/03, EU:C:2004:610, paragraphs 28 and 29). 24 To that effect, judgment of 18 December 2007, Laval un Partneri (C‑341/05, EU:C:2007:809, paragraph 75). See also judgments of 8 December 2020, Hungary v Parliament and Council (C‑620/18, EU:C:2020:1001, paragraph 60), and of 8 December 2020, Poland v Parliament and Council (C‑626/18, EU:C:2020:1000, paragraph 65). 25 See point (c) of the first subparagraph of Article 3(1) of the Posted Workers Directive. 26 See the second subparagraph of Article 3(1) of the Posted Workers Directive. 27 Thus naturally leading in fact to parallels and potential tensions with other instruments governing the choice of law – see further my Opinion in Federatie Nederlandse Vakbeweging (C‑815/18, EU:C:2020:319, points 90 to 96). 28 Judgment of 14 April 2005, Commission v Germany (C‑341/02, EU:C:2005:220, paragraph 30). My emphasis. 29 My emphasis. 30 My emphasis. 31 Judgment of 12 February 2015, Sähköalojen ammattiliitto (C‑396/13, EU:C:2015:86, paragraph 59). 32 See, to that effect, judgments of 2 June 1994, Van Swieten (C‑313/92, EU:C:1994:219, paragraph 22), and of 9 June 2016, Eurospeed (C‑287/14, EU:C:2016:420, paragraph 39). 33 For illustration, see, for example, the Joint Research Centre (of the European Commission) Science for Policy Report, Zacharof, N. G. et al., ‘Review of in use factors affecting the fuel consumption and CO2 emissions of passenger cars’, 2016, p. 7. 34 Or if not outright detrimental to the road safety, then certainly not beneficial to the mental well-being of drivers effectively queuing at low speed in the left-hand lane as a consequence. 35 Indeed, it would certainly not improve general road safety if an unreasonably low ‘standard’ consumption limit were calculated, for example, for a 20-tonne truck to climb and descend the Stelvio Pass in Italy.