Opinion of the European Economic and Social Committee on ‘Posting of drivers in the European transport sector: challenges and opportunities’ (exploratory opinion requested by the Belgian Presidency of the Council of the EU)
Date: 2023-12-13
Institutions: European Economic and Social Committee
Subjects: application of EU law, drivers, exchange of information, free movement of workers, international transport, posted worker, road safety, road transport, transport company, working conditions








C_202401569EN.000101.fmx.xml












Official Journal of the European Union


EN
Series C













C/2024/1569


5.3.2024






Opinion of the European Economic and Social Committee on ‘Posting of drivers in the European transport sector: challenges and opportunities’
         
(exploratory opinion requested by the Belgian Presidency of the Council of the EU)
(C/2024/1569)







Rapporteur:



Alena MASTANTUONO





Co-rapporteur:



Mateusz SZYMAŃSKI











Referral


Request by the Belgian Presidency of the Council, 10.7.2023




Legal basis


Article 304 of the Treaty on the Functioning of the European Union




Section responsible


Transport, Energy, Infrastructure and the Information Society




Adopted in section


10.11.2023




Adopted at plenary


13.12.2023




Plenary session No


583




Outcome of vote
(for/against/abstentions)


166/0/5




1.   Conclusions and recommendations









1.1.


The European Economic and Social Committee (EESC) notes that experience of implementing Mobility Package I is relatively limited because it has not long been in force, because of the COVID-19 pandemic and slow transposition. It therefore calls on the Member States to fully implement the provisions of Mobility Package I in order to achieve a well-functioning single market in the transport sector which is socially sustainable with minimum red tape.












1.2.


The EESC underlines the importance of enforcing the new rules and of them being interpreted and applied in a uniform way across the EU. In this regard the EESC also calls on the European Commission and the European Labour Authority (ELA) to assist the Member States and the road transport sector with coordinated interpretation of the Mobility Package and control methodology. It also calls for closer cooperation among Member States and for exchange of data, which is particularly important in fighting the phenomenon of letterbox companies. Moreover, in order to effectively protect the rights of workers in the sector, Regulation (EC) No 593/2008 of the European Parliament and of the Council (1) (Rome I) or the Rome convention should be applied, to ensure that employees should not be deprived of the protection afforded to them.












1.3.


The EESC urges Member States to regularly update national information websites in all EU languages, if possible, in order to inform operators and drivers about the specific provisions applicable at national level, as these are extremely complex.












1.4.


The EESC invites the Member States to increase the capacity of enforcement authorities and, in cooperation with the ELA, to give control officers as much high-quality training as possible and raise awareness of the new rules.












1.5.


The EESC encourages Member States to step up effort towards fully digital paperless enforcement and recommend them to implement the digital international bill of lading (e-CMR). The use of digital tools is paramount in enforcement of the new rules and helps with understanding the movements of operations, and thus the cases of posting. The EESC invites all Member States and relevant authorities to actively use the Internal Market Information system (IMI).












1.6.


The EESC encourages the European Commission and Member States to ensure a smooth transition to smart tachograph 2, version 2, including harmonised transitional exemptions at EU level. Operators should install the device across their fleets as soon as possible. Given the high costs involved, the EESC invites the Member States and the European Commission to consider introducing incentives for the sector.












1.7.


The EESC urges Member States to use data-led controls targeting companies with repeated serious infringements. In this respect, the risk-rating approach and systems should be used as widely as possible.












1.8.


The EESC suggests developing a digital application which would calculate the remuneration of posted drivers in real time. The application would reduce the administrative burden on employers, ensure transparency as regards the cases of posted drivers, provide information on components of their renumeration and make enforcement more effective.












1.9.


The EESC calls for the creation of an expert committee within the remit of the ELA, with the same goals and competences as the previous Committee of Experts on the Posting of Workers, which has been abolished.












1.10.


The EESC also notes the particularly difficult situation of drivers from third countries, who are particularly vulnerable to abuse. All public authorities are urged to act decisively to ensure equal treatment on the EU labour market regardless of country of origin. The EESC recommends that the Commission establishes an anonymous 24-hour hotline operating in all EU languages to help drivers in difficult situations.












1.11.


The EESC highlights the need to make full use of the Connected Europe Facility funding for safe and secure parking and to address drivers’ mental health challenges.




2.   Background









2.1.


In 2020 a set of legislative rules was published (known as ‘Mobility Package 1’). This package introduced changes to driving and rest time rules (Regulation (EC) No 561/2006) of the European Parliament and of the Council (2)), access to the road transport operator profession (Regulation (EC) No 1071/2009) of the European Parliament and of the Council (3)) and access to the international market for road freight transport (Regulation (EC) No 1072/2009) of the European Parliament and of the Council (4)), as well as new specific rules (Lex specialis) for the posting of drivers (Directive (EU) 2020/1057 of the European Parliament and of the Council (5)). The latter laid down specific rules with respect to Directives 96/71/EC (6) and 2014/67/EU (7) of the European Parliament and of the Council regarding posting of drivers in the road transport sector.












2.2.


The general aim was to create a fair, efficient, safe and socially sustainable road transport sector by laying down social and market rules. Furthermore, a commitment, on the one hand, to deepening the internal market for road transport services and, on the other, to protecting the social rights of workers, has been confirmed on many occasions.












2.3.


The Mobility Package was devised and adopted because of diverging conditions of competition, such as different cost structures in different Member States, including issues relating to minimum wages, conditions relating to the posting of workers and the applicability thereof to mobile labour. These, in conjunction with an unclear regulatory framework, had been distorting competition due to regulations being circumvented, including through atypical employment arrangements and letterbox companies. Different interpretation of the applicable rules across Member States, as well as difficult enforcement due to, amongst other issues, a lack of digitalisation and lack of enforcement staff, were also contributing factors.












2.4.


The Mobility Package has clearly recognised the specific nature of road transport (its highly mobile workforce, transnational nature and the need for flexible planning) by adopting special rules for the application of the Posting of Workers Directive. The Lex specialis confirms the general applicability of the Directive to the road transport sector, while introducing specific conditions and exemptions for a limited number of transport operations.












2.5.


In practice, implementation and enforcement of these rules may create difficulties. To enforce the Lex Specialis, in conjunction with Directive (EU) 2018/957 of the European Parliament and of the Council (8) and Directive 2014/67/EU, due regard should be given to the provisions of Regulation (EC) No 593/2008 (Rome I), or of the Rome Convention, aimed at ensuring that employees should not be deprived of the protection afforded to them by provisions which cannot be derogated from by an agreement or which can only be derogated from to their benefit. The directive goes even further, stating that it is up to Member States to ensure that provisions are in place to adequately protect workers who are not genuinely posted. This may include penalties, which must be effectively applied.












2.6.


In addition, Article 1(4) of Directive (EU) 2018/957 states that if, after an overall assessment made to identify whether a posting is genuine or not, it is established that the undertaking is fraudulently creating a situation whereby the worker falls within the scope of the directive, Member States have to ensure that the worker benefits from the relevant law and practice. Furthermore, Member States have to ensure that this does not lead to the worker concerned being subject to less favourable conditions than those applicable to posted workers. Hence, as Member States need to transpose those provisions into their national legislation, differences in application may exist in the different legal systems.












2.7.


As a consequence, effective application of Rome I, which contains provisions determining which country’s law normally governs an individual employment contract, remains important, in particular in cases where the posting is not genuine as well as to prevent circumvention of the law of the habitual place of work. The Rome 1 Regulation is fully applicable to the road transport sector. The potential non-application of this law to the employment contract when this law should be applied exacerbates the unfair conditions encountered in this sector. In the event of a dispute with respect to the application of Regulation (EC) No 593/2008, the relevant national authorities and/or courts are competent to resolve it in line with Court of Justice of the European Union (CJEU) case-law.












2.8.


The complexity of the rules should be somewhat reduced by the set of Questions and Answers (9) that has been published by the European Commission. They help with correct and harmonised application of the rules and clarify when posting starts and when it ends in various transport operation scenarios. However, they are just for guidance and the EESC recommends to building broad consensus on them. Only the CJEU is competent to authoritatively interpret European Union law. Enforcement practices are to be harmonised by the TRACE 2 manual that is being finalised by the European Commission in cooperation with road transport stakeholders.












2.9.


Given the difficulties with enforcement and with the previously uncoordinated introduction of national rules in this area, the Mobility Package introduced a number of harmonising enforcement provisions and a framework for increased cooperation among the Member States, including an elaborate digital exchange of information mechanism. On 9 December 2021, the Commission adopted Implementing Regulation (EU) 2021/2179 (10) on the functionalities of the public interface connected to the IMI System for posting drivers in the road transport sector. Besides the IMI, digital tachographs should play crucial role in the implementation and control of the rules on posting.












2.10.


The Lex specialis adopted as part of the Mobility Package was to have been transposed into national legislation by 2 February 2022, as of which date national measures were to apply. In mid-July 2023, Denmark and France received a letter of formal notice from the European Commission for not having ensured full transposition of the Directive, and eight Member States (Belgium, Bulgaria, Italy, Hungary, Malta, Poland, Slovenia and Finland) received a(n) (additional) reasoned opinion for not having indicated all the national measures which they considered to correspond to the various obligations imposed by the Directive.












2.11.


Publication of the European Commission’s official evaluation report on implementation of posting rules in the transport sector is due by 31 December 2025.




3.   General comments









3.1.


The EESC recognises the leading role of road transport in the transport economy and the EU economy as a whole, both in terms of GDP creation and the number of people employed (11). In 2021, road transport accounted for one quarter (24,6 %) of freight transport in the EU. Almost two thirds of road freight is national, and one quarter international, while cross-trade and cabotage transport represent 13,3 % of the EU total (12).












3.2.


The rules on the posting of workers are extremely complex, which is a challenge for a sector predominantly composed of small and medium-sized enterprises (SMEs) (often family owned and managed); 90 % of freight transport companies have fewer than 10 employees and account for around 30 % of the sector’s turnover. With this in mind, the EESC would point out the general importance of balanced, clear and enforceable legislation that (i) does not interfere with the smooth operation of the internal market or with improvements to social standards in the sector and (ii) brings added value to workers, companies and consumers, without putting an unnecessary additional strain on them.












3.3.


The EESC highlights the fact that the measures imposed by some Member States during the COVID-19 pandemic constrained the free movement of workers and goods in the single market and somewhat limited the first months of implementation of the posting rules, as well as the sector’s experience with the Mobility Package.












3.4.


The EESC welcomes the increased cooperation amongst Member States’ authorities as regards enforcement of the posting rules and the introduction of digital enforcement tools such as the IMI module for posting. The IMI seems to be functioning well and is widely used and accepted by transport companies; however, to date, only 14 Member States are actively using it. The EESC recommends that all the Member States and all responsible authorities actively use, monitor and exchange the existing data to plan the inspections.












3.5.


In this regard, the EESC suggests developing a digital application which would calculate the remuneration of posted drivers in real time; it urges the Commission to take the lead here. In this regard, there is also a need to provide transparent data on drivers’ salaries and the components thereof, along with social contributions and information on how they have been calculated, especially which national rules have applied. The application would reduce the administrative burden on employers, make it easier to control the required working conditions for the drivers and ensure transparency as regards the cases of posted drivers and make enforcement more effective. Overall, it must be clear in which cases the various rules of remuneration under posting apply. Where rules are unclear there is a risk of abuse and unfair competition.












3.6.


The EESC encourages Member States to further step up cooperation on the enforcement of posting rules and supports steps towards fully digital paperless enforcement. The EESC recommends that Member States implement the digital international bill of lading (e-CMR). In this way the burden on companies — mainly SMEs — and workers is minimised, as is the margin of human error. The use of digital tools is paramount in enforcement of the new rules and helps with understanding the movements of operations, and thus the cases of posting. The EESC welcomes the European Parliament’s pilot project on smart enforcement to map the existing electronic tools.












3.7.


Cooperation and exchange of information amongst authorities is particularly important in fighting the phenomenon of letterbox companies. The EESC recognises the challenge of identifying abuse in the complex structures of mother companies with subsidiaries, where cross-border cooperation between enforcement authorities is essential.












3.8.


To increase the effectiveness of the control bodies and complement their work, the EESC urges the Member States to increase the capacity for the authorities responsible for checking vehicles and the legal and social situation of drivers. In some countries, these public bodies have very limited capacity for carrying out numerous broad and effective inspections despite a high ratio of detected irregularities. Checks require time and tools as well as extensive educational campaigns. Up-to-date training needs to be provided for all the authorities responsible at every level. The EESC urges the Member States to use intelligence-led and data-led controls targeting companies with repeated serious infringements. In this respect, the risk-rating approach must be used as widely as possible as per Commission Implementing Regulations (EU) 2022/695 (13) and (EU) 2022/694 (14).












3.9.


The EESC regrets that information on the applicable national posting rules still remains largely unavailable to companies that are subject to possible penalties in the event of infringements. The EESC therefore urges Member States to provide relevant standardised, easily understood information on national posting rules in the EU languages and to regularly update them. In this context, we recommend that awareness-raising measures are further developed for all market players and continue to be funded. In this connection, the EESC calls on the ELA to take the lead here and create an EU-wide single window access point for national information on the transposition of rules on the posting of drivers in order to help the sector — largely composed of SMEs — to correctly apply the patchwork of rules.












3.10.


The EESC regrets that the Committee of Experts on the Posting of Workers, set up by Commission Decision 2009/17/EC (15) of 19 December 2008, has been abolished. The Committee had broad powers and an extensive remit. It was promised that these would be moved to the ELA but this has not happened to date. In this regard, the EESC calls for the creation of an expert committee within the remit of ELA with the same goals and competences as the committee previously established by the Commission, and stresses the importance of cooperation with the social partners. It also recommends that an effective complaint mechanism be put in place.












3.11.


Since the enforcement of the posting of workers rules in international transport is a complex administrative challenge, a previous EESC opinion (16) highlighted the need for clarification and efficient enforcement of the rules. In this regard, the EESC welcomes joint efforts by the European Commission, road transport social partners, the enforcement community and other stakeholders to harmonise interpretation of the Mobility Package via the published Questions and Answers, in particular the TRACE 2 project on the harmonisation of controls. The EESC would also like to draw attention to the fact that a number of concerns have been raised regarding these Questions and Answers, as well as regarding the guidance published on the Commission’s website on the rules for posting drivers in transport. It encourages the Commission and the Member States to actively involve the social partners and other stakeholders in working together on these matters so that they are as precise as possible, as well as transparent and understandable.












3.12.


The EESC urges the Commission and the ELA to continue to actively assist Member States and the sector with the interpretation of the Mobility Package 1 rules and the methodology of controls, including joint inspections, whilst at the same time sharing lessons learned from joint inspections with the social partners, so that these lessons can be incorporated into drivers’ and managers’ training. The EESC also calls on Member States to use the outcome of the above-mentioned projects extensively in their enforcement practices.












3.13.


The digital tachograph is the centrepiece of effective controls in road transport. The EESC therefore welcomes the recent entry into force of Generation 2, version 2, of Smart Tachograph and is of the opinion that the tachograph with a real-time positioning system will be the final piece of the puzzle in preventing distortions of competition. The EESC urges the European Commission and Member States to consider incentives and special training for the sector in order to speed up the deployment of the second generation smart tachograph.












3.14.


The EESC regrets that the concept of joint liability and related culture of compliance in the transport sector remain largely theoretical and its enforcement seems to be non-existent. The transport sector of today uses complex subcontracting structures where online transport market platforms feature strongly. The EESC therefore emphasises that in the event of an infringement there is a need to analyse the whole transport chain and assess, for example, the liability of shippers, freight forwarders and contractors.




4.   Specific comments









4.1.


The EESC emphasises the paramount importance of road safety. The Committee highlights that safety considerations, including the prevention of accidents and the protection of drivers and other road users, should be at the forefront of any regulatory and operational decisions.












4.2.


Moreover, the EESC stresses the significance of addressing mental health challenges faced by drivers and calls for strategies and support systems that promote and safeguard drivers’ mental well-being, including recognising stress, anxiety, depression and burnout as legitimate concerns in the industry. It calls for training programs to be developed that focus on health and safety aspects.












4.3.


The EESC stresses the importance of a safe parking infrastructure with available accommodation for proper rest. The number of such places throughout Europe is very low, despite the fact that the need for greater availability has been expressed for many years. The EESC therefore urges the Member States to make full use of the Connected Europe Facility funding to provide safe and secure parking.












4.4.


There is a very noticeable shortage of personnel, which undermines the potential for economic growth, not only in transportation but also in the EU economy as a whole. This point goes beyond the scope of this analysis, but it is an important one for the future of the sector.












4.5.


The EESC wishes to note the special situation of workers from third countries. It stresses the extreme importance of preventing any discrimination based on the origin of individual drivers (e.g. language barriers, more temporary working conditions) and of ensuring that all workers in the sector have appropriate healthcare and are treated equally.






Brussels, 13 December 2023.


The President of the European Economic and Social Committee

Oliver RÖPKE
            





(1)  Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6).

(2)  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 (OJ L 102, 11.4.2006, p. 1).

(3)  Regulation (EC) No 1071/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC (OJ L 300, 14.11.2009, p. 51).

(4)  Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market (OJ L 300, 14.11.2009, p. 72).

(5)  Directive (EU) 2020/1057 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 L 249, 31.7.2020, p. 49).

(6)  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 (OJ L 18, 21.1.1997, p. 1).

(7)  Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’) (OJ L 159, 28.5.2014, p. 11).

(8)  Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (OJ L 173, 9.7.2018, p. 16).

(9)  Mobility Package I (https://transport.ec.europa.eu/transport-modes/road/mobility-package-i_en).

(10)  Commission Implementing Regulation (EU) 2021/2179 of 9 December 2021 on the functionalities of the public interface connected to the Internal Market Information System for posting drivers in the road transport sector (OJ L 443, 10.12.2021, p. 68).

(11)  The road transport sector directly employs 6 million people in the EU (Eurostat, 7 February 2023, https://ec.europa.eu/eurostat/web/products-eurostat-news/w/ddn-20230207-1)..

(12)  According to Eurostat data from July 2023, international transport represented one quarter (25,4 %) of total road freight transport in the EU in 2022 and national transport represented almost two thirds (61,3 %) of the total (https://ec.europa.eu/ eurostat/statistics-explained/index.php?title=Road_freight_transport_statistics).

(13)  Commission Implementing Regulation (EU) 2022/695 of 2 May 2022 laying down rules for the application of Directive 2006/22/EC of the European Parliament and of the Council as regards the common formula for calculating the risk rating of transport undertakings (OJ L 129, 3.5.2022, p. 33).

(14)  Commission Implementing Regulation (EU) 2022/694 of 2 May 2022 amending Regulation (EU) 2016/403 as regards new serious infringements of the Union rules which may lead to the loss of good repute by the road transport operator (OJ L 129, 3.5.2022, p. 22).

(15)  Commission Decision 2009/17/EC of 19 December 2008 setting up the Committee of Experts on Posting of Workers (OJ L 8, 13.1.2009, p. 26).

(16)  Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the European Parliament and of the Council amending Directive 2006/22/EC as regards enforcement requirements and laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector’
            (COM(2017) 278 final — 2017/0121 (COD)) and on the ‘Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 561/2006 as regards on minimum requirements on maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods and Regulation (EU) No 165/2014 as regards positioning by means of tachographs’
            (COM(2017) 277 final — 2017/0122 (COD)) (OJ C 197, 8.6.2018, p. 45).


ELI: http://data.europa.eu/eli/C/2024/1569/oj
ISSN 1977-091X (electronic edition)