Earlier this summer, the Act holding various provisions with respect to the posting of drivers in the road transport sector entered into force. This Act (partly) transposes Directive (EU) no. 2020/1057 laying down specific rules with respect to Directive 96/71/EC (‘the Posted Workers Directive’) and Directive 2014/67/EU (‘the Posted Workers Enforcement Directive’) for posting drivers in the road transport sector into Belgian law.
Posting of drivers – the need for industry-specific rules
When the 1996 Posted Workers Directive was revised in 2018 by Directive (EU) no. 2018/957 – with the aim of adapting the former to new economic and labour market conditions – it was decided that this revision would not apply to the road transport sector until an industry-specific European legislative act on the posting of drivers would have been adopted. Indeed, the inherent properties of that sector – notably the high level of mobility of drivers – called for a set of specific regulations. To this end, Directive (EU) no. 2020/1057 was adopted.
In its plenary session of 16 june 2022, the Belgian Chamber of Representatives adopted the draft law holding various provisions regarding the posting of drivers in the road transport sector, which (partly) transposes Directive (EU) no. 2020/1057 into Belgian law.
It’s important to point out that the specific rules for posting of drivers in the road transport sector – which we’ll explain in more detail below – are limited to i) the determination of which transnational road transport activities classify as a posting of drivers and ii) if so, which limited administrative requirements and control measures can be applied by the host Member State. However, if a situation classifies as a posting of drivers in the road transport industry, all other provisions of the Posted Workers Directive and its Enforcement Directive will be fully applicable, including the former’s general principle that the ‘hard core’ employment conditions of the host Member State (i.a. working time, remuneration, health & safety …) will in principle apply in such a case.
Posting by Belgian employer – information obligations
Employers that have their registered seat in Belgium, fall within the application field of one of the below joint committees and post drivers from Belgium to another EU Member State in the framework of road transport activities on behalf of a third party have to inform their drivers about the website of the host Member State where they can find all information regarding their rights and obligations as posted drivers in said Member State.
More specifically, it concerns the following joint committees:
- joint committee no. 117 for the petroleum industry and -commerce;
- joint committee no. 124 for the construction industry ;
- joint committee no. 127 for the trade in fuels;
- joint committee no. 140 for transport and logistics;
- joint committee no. 317 for the security and/or surveillance services.
Scope of the transposition Act
Due to the inherently mobile nature of transport activities, drivers are not generally posted to another Member State for longer periods of time, contrary to what we sometimes see in other industries. In order for transnational transport activities to classify as posting of drivers, a sufficient connection should therefore exist between the driver and the service provided, and the territory of the host Member State (in casu Belgium).
As such, the Act excludes some road transport activities – in which such sufficient connection is not present – from its scope. More specifically, drivers shall not be considered posted in the following situations of transnational road transport operations:
- the bilateral transportation of goods and passengers (i.e. transport activities starting from the country in which the employer is located to another country or the other way around);
- limited additional loading and unloading activities carried out in transiting countries during a bilateral goods and passenger transport activity;
- when performing the initial or final road leg of a combined transport operation, if the road leg on its own consists of bilateral transport operations;
- when the driver transits through the Belgian territory without loading or unloading freight and without picking up or dropping off passengers.
In case of other transnational transport operations on Belgian territory, notably cabotage operations (the entire transport activity by a foreign employer, both pickup and delivery, takes place in Belgium) or non-bilateral transport operations, a sufficient connection with Belgium will, however, be present and these situations will therefore classify as the posting of drivers.
Limited administrative requirements and control measures
The Act also determines which limited administrative requirements and control measures will be imposed on foreign employers, if a transport operation classifies as a posting of drivers in the road industry on Belgian territory:
- The obligation for the foreign employer posting drivers to Belgium to file a prior posting declaration. Employers located in another EU Member State or the UK have to use the online platform provided by the European Commission (https://www.postingdeclaration.eu). Employers located outside the EU or the UK will have to file the declaration via the website of the Federal Public Service Employment, Labour and Social Dialogue. If such industry-specific posting declaration has to be filed, no additional Limosa-declaration is required;
- A list of documents that a posted driver must be able to present during a roadside check (on paper or digitally): a copy of the posting declaration, evidence that the transport operations taking place in Belgium and tachograph records;
- A list of documents that the employer must continue to be able to present to the Belgian authorities after the end of the posting: a copy of the documents mentioned in the previous bullet point, a copy of the employment contract or equivalent document with information on the posted driver’s employment conditions during the period of posting (start- and end date employment, remuneration of the driver, etc.), detailed overview of the driver’s working hours, documents regarding the driver’s wages (as determined by the legislation of the country of the employer and equivalent to a Belgian payslip) and proof of payment of these wages;
- The obligation for the foreign employer to appoint a transport manager or other contact person in the country in which the employer is located, to liaise with the Belgian competent authorities and to send out and receive documents or notices;
Every other administrative requirement or control measure that would be imposed under Belgian labour law but is not included in the aforementioned list cannot be applied to the posting of drivers in the transport industry to Belgium. In this respect, the transposition Act also explicitly excludes the posting of drivers in the transport industry from a number of Belgian labour law obligations, i.a. the obligation to draft work regulations.
Sanctions
The transposition Act also adjusts the provisions of the Belgian Social Criminal Code, implementing sanctions for non-compliance with the above-mentioned posted driver-specific administrative requirements and control measures. Failure to comply with these obligations will be punishable with a sanction level 4; either imprisonment of 6 months up to 3 years and/or a criminal fine of EUR 600 to EUR 6,000 or an administrative fine of EUR 300 to EUR 3,000, of which the amounts have to be multiplied with a surcharge factor – the ‘opdeciemen’/’décimes additionnels’ – which is currently set at 8.
In addition, the transposition Act introduces a joint liability when executing road transport services. A sanction level 4 will be applicable to the client, transport agent or freight forwarder when, taking into account all relevant circumstances, they knew – or should have known – that the employer from which they ordered road transport services did not comply with the above-mentioned formal requirements that are applicable in Belgium in case of posting of drivers.
Entry into force
The transposition Act was published in the Belgian Official Gazette of 11 July 2022 and entered into force on the same day.
Conclusion
With the entry into force of the Act transposing Directive (EU) no. 2020/1057 into Belgian law, a specific (limited) set of administrative requirements and control measures is now applicable to foreign employers that post drivers in the road transport industry on Belgian territory. If you have any questions on this topic or would like to get more guidance on the different aspects of posting drivers to Belgium, don’t hesitate to contact us: we’d love to hear from you.
Pascale Moreau - Partner, PwC Legal
Olivier Chapelle - Advocaat Vennoot / Avocat Associé, PwC Legal
