In a judgment of 1 December 2020, the Court of Justice of the European Union ("CJEU") interpreted 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 (the "Directive"). The Directive guarantees workers posted to the territory of another Member State application of the terms and conditions of employment laid down inter alia by law or collective agreement in that Member State.
The case brought before the CJEU concerned a Dutch transport company that had concluded charter contracts with German and Hungarian sister companies. Under these contracts, German and Hungarian workers are employed as drivers. The charter operations start and end in the Netherlands, but most transport takes place outside the Dutch territory.
The Dutch transport company considered that the German and Hungarian drivers did not fall under the scope of the Directive. Therefore, the company believed that the drivers were not covered by the Dutch collective labour agreement applicable to the goods transport sector. This assumption was challenged in court.
To verify whether the drivers fall within the scope of the Directive, the Court analysed the conditions under which a worker is considered to be posted to the territory of a Member State. In this regard, the performance of the worker should have a sufficient connection with the territory of the Member State to which the worker is posted. The existence of such a connection is determined based on an overall assessment of various factors, including the nature of the activities, the degree of connection between the worker’s activities and the territory of each Member State in which the worker is active, and the proportion of the entire transport service represented by the activities.
Based on this assessment, the Court held that the fact that the German and Hungarian drivers receive instructions from the Dutch company and start and finish their transport operations in the Netherlands is not sufficient to find that they have been posted to the Netherlands.
However, the Court added that a driver in the road transport sector active in cabotage on the territory of a Member State other than the Member State in which (s)he normally works must be regarded as being posted to the territory of the Member State in which the activities are carried out. The duration of the cabotage activities is irrelevant for the purpose of determining whether there has been a posting.
