The Directive was required to be implemented by all EU countries by February 2022. The Italian piece of implementing legislation is now in force.
The aim of the EU Directive and regulations is to ensure a balance between i) the freedom of employers to provide cross-border services, ii) the free movement of goods, and iii) appropriate working conditions and social protection for drivers. Given the high degree of labour mobility in the road transport sector, drivers are generally not posted to another Member State for long periods, as is the case in other industries. Uncertainty has therefore arisen in determining in which circumstances the rules on posting laid down in the 1996 EU Posted Workers Directive apply to drivers.
The mobility Directive distinguishes between types of transport operations to determine which of these types falls within the posting rules in the Posted Workers Directive. The key factor is the degree of connection with the territory of the host Member State.
More specifically, it follows from the mobility Directive that drivers carrying out transport operations in Member States other than the Member State of establishment are posted only when they carry out cross-trade operations and ‘cabotage’ transport operations. Road cabotage (as governed by Reg. 1072 and 1073/2009) consists in the provision of transport services carried out within a Member State (i.e. with loading and unloading carried out in the same State) by an undertaking not established in that Member State. In the case of cabotage, the link with the territory of the host Member State is sufficient to consider the driver as posted.
In contrast, a driver is not considered posted when carrying out:
The recent mobility Directive provides some additional obligations on the employer and the driver in each stage of the posting (over and above the requirements of the Posted Workers Directive), starting from the requirement to transmit the declaration of posting to the competent national authorities at the start of the posting. The posting declaration for companies located in the EU and in the UK needs to be done though an EU platform. During the course of the posting, the employer must also ensure that the driver has certain mandatory documents such as the declaration of posting, proof of transport operations in the host Member State, and tachograph records (in particular the symbols of the Member States in which the driver carried out transport or cabotage operations). Finally, at the end of the posting period, the employer must forward, upon request of the competent authorities of the Member States in which the posting took place, the documentation related to the posting. The Directive also regulates the employer’s internal controls. The good news is that Member State authorities may not impose additional administrative requirements on operators beyond those specified in the Directive.
Although the EU deadline to implement the 2020 mobility Directive expired in February 2022, the Italian government has only now passed the implementing legislation. In particular, Legislative Decree n. 27 of 2023 amends the previous Italian rules on posting of workers, introducing the new obligations and definitions enshrined in the Directive. This new domestic legislation imposes some additional administrative requirements for transport employers compared to the past. It also clears from any doubt the applicability of the Posted Workers Directive in cases of cabotage.
In practice, in addition to the rules implementing the Posted Workers Directive and the above mentioned obligations, employers are now required to transmit the declaration of posting to the competent national authorities before the beginning of the posting. The declaration of posting must include:
The Legislative Decree also introduces administrative sanctions to enforce the mobility pack obligations, including fines up to EUR 10,000. Drivers also may be subject to administrative sanctions if they do not share with police officers the relevant documentation when requested; a fine up to EUR 600 is provided in such cases.
The mobility pack is now fully operative in Italy and in many other Member States. Employers should ensure compliance with these new obligations to avoid sanctions.