On February 2, the new rules introduced by the EU Directive 2020/1057 within the so-called “MOBILITY PACKAGE“. The Directive, although not yet fully effective in Italy, introduces new rules regarding the transnational detachment of drivers in the road transport sector and a whole series of administrative obligations for companies.
It is important to remember that European Directives are one of the legal acts that can be adopted within the European Union, they are addressed to all member states and are binding for them, but in order to be effective within individual countries, they require a process of implementation. Italy has not yet complied with the obligation and therefore the provisions are not yet fully effective within our national territory. While awaiting implementation, it is advisable to analyze the new features introduced.
EU Transnational Detachment
First of all, it is important to clarify the scope in which the Directive intervenes: The transnational detachment is nothing more than a particular type of secondment where the sending and receiving parties are located in different member states. Specifically, it occurs when workers are sent to work under the direction of another employer located in another EU member country. Transnational secondment in the EU also occurs when a staffing agency from one member country sends its employees to a user entity located in another member country.
The Internal Market Information System (IMI)
It is evident that the diversity of language, the reliance on different administrative bodies, and different forms, leads to a series of difficulties, especially in terms of communication and control, and it is precisely these issues that Directive EU 2020/1057 seeks to address. The goal is to prevent fraud in the sector by strengthening controls and cooperation at the European Union level.
Specifically, in order to standardize operational procedures across all EU countries, there is now an obligation for companies to submit a declaration in the case of worker secondment, and in particular, this must occur through the INTERNAL MARKET INFORMATION SYSTEM (IMI). This system, already in existence since 2008, is now identified as a means to facilitate the exchange of information between companies during the secondment process. The IMI will also be the tool through which control bodies can verify and monitor compliance with the administrative obligations briefly explained.
THE OBLIGATIONS: transnational secondment compliance
These are the main obligations provided by the Directive regarding the secondment of drivers:
- Trasmettere una dichiarazione di distacco to the competent national authorities of the Member State in which the driver is posted. This must be done no later than at the beginning of the posting, using a specific multilingual form and transmitted through the IMI.
- Ensure that the driver has available in paper or electronic format a copy of the posting declaration;
- Keep the posting declaration on board the vehicle, the documentation proving the transport operations taking place in the host country and the tachograph records;
- Transmit via the IMI, after the posting period and upon request, all documentation regarding the operation, the documentation regarding the remuneration received by the driver during the posting period, the work time sheets, and proof of payment.
When is one in a condition of transnational posting of workers?
To understand when one is subject to the above obligations, that is, when one is in a condition of transnational posting of workers, it is necessary to understand whether the worker is to be considered posted or not. According to Article 2 paragraph 1 of the Directive 96/71/EC one is a posted worker when, for a limited period, one performs their work in the territory of a Member State other than the one in whose territory they normally work.
When is one NOT a posted worker?
Notwithstanding the definition above, the driver will not be considered posted:
- when carrying out operations of bilateral transport, of goods or with regard to passengers;
- when a bilateral transport activity is carried out and only one loading and/or unloading activity is performed in the member states or third countries that are crossed;
- when a bilateral transport activity is carried out, no additional activities are performed, and a new bilateral transport follows this transport with a maximum of two loading and/or unloading activities of goods in the same state;
- when one transits through the territory of a member state without performing loading/unloading operations of goods or without boarding/alighting passengers;
BILATERAL TRANSPORT OF GOODS refers to the movement of goods based on a transport contract from the member state of establishment to another member state or to a third country or from another member state or a third country to the member state of establishment.
Controls and new procedures
The directive also contains a series of provisions regarding controls. Specifically, in Article 5, it is established that member states shall carry out, at least six times a year, coordinated controls to check drivers and vehicles on the road. Member states must also commit to organizing coordinated controls at the premises of transport companies. Such controls must be carried out simultaneously by the control authorities of multiple member states, each operating in its own territory.
Final Considerations
As it is a European Directive, the provisions need to be implemented by Italy to be fully effective in Italy. Nevertheless, it is recommended that interested companies take action and adapt their operations to the new procedures as soon as possible.