EU: CJEU emphasises “sufficient connection to the territory of host Member State” as criterion to qualify as posted worker in international transport services
On 1 December 2020, the Grand Chamber of the Court of Justice of the European Union has ruled in Case C-815/18 Federatie Nederlandse Vakbeweging (FNV) v Van den Bosch Transporten BV and Others. The Court affirms that a worker who provides very limited services in the territory of the Member State, to which that worker is sent, cannot be regarded as ‘posted’ because there is no sufficient connection to this Member State.
The case concerns German and Hungarian lorry drivers who were working under charter contracts between the Dutch transport company Van den Bosch Transporten and its German and Hungarian sister companies. German drivers were employed by the German company and the Hungarian drivers by the Hungarian company. Together these companies form a concern (a group). The Dutch Trade Union FNV complained that the provisions regarding the basic employment conditions laid down in a Dutch sectorial collective bargaining agreement (CBA) on “Goods Transport” were not applied to the German and Hungarian lorry drivers. This CBA was not declared universally applicable, but a second CBA, which was declared universally applicable, contained similar provisions. Additionally, transport companies can only escape the application of this second CBA if they comply with the Goods Transport CBA. The CJEU had to decide whether the lorry drivers could be seen as workers who are posted to The Netherlands in line with the Posted Workers Directive (Directive 96/71/EC) and if the provisions of the Goods Transport CBA can be imposed on them. The difficulty in this specific case, is that the charter transports would usually start and end in The Netherlands, but most of the transport activities are carried out in the territories of other Member States.
The CJEU first stated that the Posted Workers Directive is applicable to the transnational provision of services in the road transport sector. However, in order to apply the rules of this Directive, the lorry drives need to under its scope and be qualified as ‘posted workers’ (posted to The Netherlands). In order to receive this status, the Court recalled that their activities must have a sufficient connection with that territory. The existence of such a connection is determined in the context of an overall assessment of factors such as:
- the nature of the activities carried out by the worker concerned in that territory;
- the degree of connection between the worker’s activities and the territory of each Member State in which the worker operates;
- the proportion represented by those activities in the entire transport service.
The fact that the German and Hungarian workers received their instructions from the Dutch company and would start or finish their tasks at the Dutch company is not enough, in itself, to conclude that they are posted, except if there would are other indicators to demonstrate that the activities have a sufficient connection to the territory of The Netherlands. Further, the fact that the different companies form a concern is not relevant for the qualification as posted workers. It is up to the national court to determine, case-by-case, if there is a sufficient connection to the territory of the hosting Member State.
According to the CJEU, this seems to be the case as to what concerns the cabotage transport activities. “Cabotage” is the transport of goods (or passengers) between two locations in the same Member State, by a company from another Member State. The cabotage transports in the case at hand were completely carried out in The Netherlands (by mostly Hungarian drivers), which creates a sufficient connection to the host Member State. In contrast, this is not the case for a driver who merely transits through the territory of a Member State or for a driver who only carries out cross-border transport operations from the Member State, where the transport undertaking is established to the territory of another Member State or vice versa. Therefore, simple bilateral or cross-border transports do not create a sufficient connection to the territory of a Member state.
When the drives can be seen as posted workers, the Court states that the provisions of the Transport Goods CBA will be applicable, because the compliance is made mandatory by another CBA, which is generally a CBA which has not been declared universally applicable, but compliance with which is declared universally applicable.
This judgment refers to a situation before the entry into force of the Revision of the Posted Workers Directive by Directive (EU) 2018/957 (which made the condition of universal applicability for CBA’s less strict).
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