The CJEU has ruled that the Directive on the posting of workers in the framework of the provision of services is applicable to the transnational provision of services in the road transport sector (verdict of 01.12.2020 – C815/18).
The question of whether Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 (Posting of Workers Directive) concerning the posting of workers in the framework of the provision of services is to be interpreted as also applying to drivers in the international carriage of goods was examined. In general, it is debated in which constellation the Posting of Workers Directive applies to drivers travelling on the territory of another state. This legal question is of fundamental importance.
The legal question is based on the following posting constellation: A Dutch transport company is bound by a collective agreement which provides that the collective working conditions apply equally to its own company and to subcontractors in subcontracts. The Dutch trade union FNV requires compliance with the applicable collective agreement for active workers, as the drivers usually perform their work in the Netherlands. A collective agreement ultimately defeats the purpose of ensuring that an employer does not undermine its application by outsourcing the work.
If the criterion of “sufficient connection” to the national territory could be derived, then this should also apply to journeys by lorry through another member state. A sufficient link is determined on the basis of an overall assessment of the following factors: the nature of the work carried out by the worker concerned in that territory, the closeness of the link between the activities of that worker and the territory of each Member State, and the proportion of the total transport service provided there accounted for by those activities.
With the addition of Directive 96/71/EC, the application of the collective agreement and the aspect that provides for the application of universally applicable collective agreements of the country of assignment for posted workers may be considered. In the case of a posting of workers under the above-mentioned Directive, it must be ensured that the companies concerned guarantee the workers posted to their territory a set of terms and conditions of employment, which are, inter alia, set out in the collective agreements that have been declared universally applicable.
NZA 19/2020 pp.1295-1296
NZA 23/2020 pp. VI-VII