Article 1 Specific rules on the posting of drivers
1. This Article establishes specific rules as regards certain aspects of Directive 96/71/EC relating to the posting of drivers in the road transport sector and of Directive 2014/67/EU relating to administrative requirements and control measures for the posting of those drivers. 2. These specific rules apply to drivers employed by undertakings established in a Member State which take the transnational measure referred to in point (a) of Article 1(3) of Directive 96/71/EC. 3. Notwithstanding Article 2(1) of Directive 96/71/EC, a driver shall not be considered to be posted for the purpose of Directive 96/71/EC when performing bilateral transport operations in respect of goods. For the purpose of this Directive, a bilateral transport operation in respect of goods means the movement of goods, based on a transport contract, from the Member State of establishment, as defined in Article 2(8) of Regulation (EC) No 1071/2009, to another Member State or to a third country, or from another Member State or a third country to the Member State of establishment. From 2 February 2022, which is the date from which drivers are required, pursuant to Article 34(7) of Regulation (EU) No 165/2014, to record border crossing data manually, Member States shall apply the exemption for bilateral transport operations in respect of goods set out in the first and second subparagraphs of this paragraph also where, in addition to performing a bilateral transport operation, the driver performs one activity of loading and/or unloading in the Member States or third countries that the driver crosses, provided that the driver does not load goods and unload them in the same Member State. Where a bilateral transport operation starting from the Member State of establishment during which no additional activity was performed is followed by a bilateral transport operation to the Member State of establishment, the exemption for additional activities set out in the third subparagraph shall apply to a maximum of two additional activities of loading and/or unloading, under the conditions set out in the third subparagraph. The exemptions for additional activities set out in the third and fourth subparagraphs of this paragraph shall apply only until the date from which smart tachographs complying with the requirement of recording border crossings and additional activities referred to in the first subparagraph of Article 8(1) of Regulation (EU) No 165/2014 are required to be fitted in the vehicles registered in a Member State for the first time, under the fourth subparagraph of Article 8(1) of that Regulation. From that date the exemptions for additional activities set out in the third and fourth subparagraphs of this paragraph shall apply solely to drivers using vehicles fitted with smart tachographs, as provided for in Articles 8, 9 and 10 of that Regulation. 4. Notwithstanding Article 2(1) of Directive 96/71/EC, a driver shall not be considered to be posted for the purpose of Directive 96/71/EC when performing bilateral transport operations in respect of passengers. For the purpose of this Directive, a bilateral transport operation in international occasional or regular carriage of passengers, within the meaning of Regulation (EC) No 1073/2009, is when a driver performs any of the following operations: (a) picks up passengers in the Member State of establishment and sets them down in another Member State or a third country; (b) picks up passengers in a Member State or a third country and sets them down in the Member State of establishment; or (c) picks up and sets down passengers in the Member State of establishment for the purpose of carrying out local excursions in another Member State or a third country, in accordance with Regulation (EC) No 1073/2009. From 2 February 2022, which is the date from which drivers are required, pursuant to Article 34(7) of Regulation (EU) No 165/2014, to record border crossing data manually, Member States shall apply the exemption for bilateral transport operations in respect of passengers set out in the first and second subparagraphs of this paragraph also where, in addition to performing a bilateral transport operation, the driver picks up passengers once and/or sets down passengers once in Member States or third countries that the driver crosses, provided that the driver does not offer passenger transport services between two locations within the Member State crossed. The same shall apply to the return journey. The exemption for additional activities set out in the third subparagraph of this paragraph shall apply only until the date from which smart tachographs complying with the requirement of recording of border crossings and additional activities referred to in the first subparagraph of Article 8(1) of Regulation (EU) No 165/2014 are required to be fitted in the vehicles registered in a Member State for the first time, under the fourth subparagraph of Article 8(1) of that Regulation. From that date the exemption for additional activities set out in the third subparagraph of this paragraph shall apply solely to drivers using vehicles fitted with smart tachographs, as provided for in Articles 8, 9 and 10 of that Regulation. 5. Notwithstanding Article 2(1) of Directive 96/71/EC, a driver shall not be considered to be posted for the purpose of Directive 96/71/EC when the driver transits through the territory of a Member State without loading or unloading freight and without picking up or setting down passengers. 6. Notwithstanding Article 2(1) of Directive 96/71/EC, a driver shall not be considered to be posted for the purpose of Directive 96/71/EC when performing the initial or final road leg of a combined transport operation as defined in Council Directive 92/106/EEC ( 20 ) , if the road leg on its own consists of bilateral transport operations, as defined in paragraph 3 of this Article. 7. A driver performing cabotage operations as defined in Regulations (EC) No 1072/2009 and (EC) No 1073/2009 shall be considered to be posted under Directive 96/71/EC. 8. A posting shall, for the purpose of Article 3(1a) of Directive 96/71/EC, be considered to be ending when the driver leaves the host Member State in the performance of the international carriage of goods or passengers. That period of posting shall not be cumulated with previous periods of posting in the context of such international operations performed by the same driver or by another driver whom he or she replaces. 9. Member States shall ensure that, in accordance with Directive 2014/67/EU, terms and conditions of employment referred to in Article 3 of Directive 96/71/EC, which are laid down by national law, regulation or administrative provision, or by collective agreements or arbitration awards which, in their territories, have been declared universally applicable or otherwise apply in accordance with Article 3(1) and (8) of Directive 96/71/EC, are made available in an accessible and transparent way to transport undertakings from other Member States and to posted drivers. The relevant information shall, in particular, cover the constituent elements of remuneration rendered mandatory by such instruments, including, where relevant, by collective agreements that are generally applicable to all similar undertakings in the geographical area concerned. 10. Transport undertakings established in a non-Member State shall not be given more favourable treatment than undertakings established in a Member State, including when performing transport operations under bilateral or multilateral agreements granting access to the Union market or parts thereof. 11. By way of derogation from Article 9(1) and (2) of Directive 2014/67/EU, Member States 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 another Member State to submit a posting declaration to the national competent authorities of a Member State to which the driver is posted at the latest at the commencement of the posting, using a multilingual standard form of the public interface connected to the Internal Market Information System (‘IMI’), established by Regulation (EU) No 1024/2012; 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 Community licence where this number is available; (ii) the contact details of a transport manager or other contact person in the Member State of establishment to liaise with the competent authorities of the host 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; (vi) the number plates of the motor vehicles; (vii) whether the transport services performed are carriage of goods, carriage of passengers, international carriage or cabotage operations; (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 IMI; (ii) evidence of the transport operations taking place in the host Member State, such as an electronic consignment note (e-CMR) or evidence referred to in Article 8(3) of Regulation (EC) No 1072/2009; (iii) the tachograph records and in particular the country symbols of the Member States in which the driver was present when carrying out international road transport operations or cabotage operations, in accordance with registration and record-keeping requirements under Regulations (EC) No 561/2006 and (EU) No 165/2014; (c) an obligation for the operator to send via the public interface connected to IMI, after the period of posting, at the direct request of the competent authorities of the Member States where the posting took place, copies of documents referred to in point (b) (ii) and (iii) of this 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 within the meaning of Article 3 of Council Directive 91/533/EEC ( 21 ) , time-sheets relating to the driver’s work, and proof of payments. The operator shall send the documentation via the public interface connected to IMI 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 Member State where the posting took place may request, via IMI, the assistance of the competent authorities of the Member State of establishment, in accordance with Articles 6 and 7 of Directive 2014/67/EU. When such a request for mutual assistance is made, the competent authorities of the Member State of establishment of the operator shall have access to the posting declaration and other relevant information submitted by the operator via the public interface connected to IMI. The competent authorities of the Member State of establishment shall ensure that they provide the requested documentation to the competent authorities of the Member State where the posting took place via IMI within 25 working days from the day of the request for mutual assistance. For the purpose of ascertaining whether a driver is not to be considered to be posted pursuant to paragraphs 3 and 4 of this Article, Member States 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 international carriages, such as an electronic consignment note (e-CMR) or evidence referred to in Article 8(3) of Regulation (EC) No 1072/2009, and tachograph records, as referred to in point (b)(iii) of this paragraph. 12. For the purposes of control, the operator shall keep the posting declarations referred to in point (a) of paragraph 11 up to date in the public interface connected to IMI. 13. The information from the posting declarations shall be saved in the IMI repository for the purpose of checks for a period of 24 months. A Member State may allow the competent authority to provide national social partners by other means than IMI with relevant information available in IMI 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 Member State concerned; (b) the information is used exclusively for the purpose of enforcing the posting rules; and (c) any data processing is carried out in accordance with Regulation (EU) 2016/679. 14. By 2 February 2021, the Commission shall specify, by way of an implementing act, the functionalities of the public interface connected to IMI. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 4(2). 15. Member States shall avoid unnecessary delays in the implementation of the control measures that might affect the duration and dates of the posting. 16. The competent authorities in the Member States shall cooperate closely and shall provide each other with mutual assistance and all relevant information, subject to the conditions laid down in Directive 2014/67/EU and in Regulation (EC) No 1071/2009.