Posting of employees in the context of road transport in France: what are the formalities prior to posting?

In order to take account of the specific features inherent in the posting of road transport services, specific rules have been put in place since the transposition into French law of the European Directive[1]  of July 15th, 2020, known as the lex specialis, which came into force on February 2nd, 2022. As of this date, new rules have been created, in particular by adapting pre-existing rules to the road transport sector, which also entails new declarative procedures.

What does this European framework mean in practice?

The lex specialis imposes new declarative and administrative formalities on companies established within the European Union in the context of the posting of lorry drivers. From now on, we identify:

1. Companies falling within the scope of the lex specialis and posting lorry drivers to French territory to carry out a transport agreement:

These companies are now subject to the following formalities:

• Submit a pre-posting declaration via a public portal connected to the Internal Market Information System, known as "IMI", managed by the European Commission[2];
• Provide the host authorities, upon request, with the documents required under the Directive, by means of "IMI", as part of the checks on compliance with the rules on the posting of drivers;
• No obligation to appoint a representative in the national territory.

2. Companies posting lorry drivers to French territory but not falling within the scope of these European provisions:

Following the entry into force of the lex specialis, the situation of these companies continued to be governed by the French Transport Code and they were therefore required to submit a certificate of posting using the French teleservice SIPSI[3] and appoint a representative on French territory. 

However, the introduction of this European framework, specific to lorry drivers posted as part of an international provision of services, has forced the French government to review the place of the posting certificate.

Focus on the formalities applicable since January 1st, 2023

Since January 1st, 2023, in application of the Order of October 5th, 2022[4], supplemented by the Decree of October 21st, 2022[5], the few companies still subject to the French national system of posting certificates are now attached to the common law rules provided for by the Labor Code. A distinction is now made between:

• The prior declaration of posting, provided for by the Labour Code and made using the SIPSI teleservice, must be made by transport companies posting their drivers or seagoing personnel in the following situations and for each transport operation:
• Posting between establishments of the same company, or between companies of the same group: Drivers of heavy goods vehicles or light vehicles posted in the context of the secondment of personnel between undertakings of the same group (Article 1(3)(b) of Directive 96/71/EC)
• Posting via a temporary employment agency: Driver of heavy goods vehicles or light vehicles made available by a temporary employment agency established abroad to a user company established in France (Article 1(3)(c) of Directive 96/71/EC)
• By way of exception, the posting certificate, provided for by the Transport Code and which may cover several posting operations, remains in force in the event of the posting of a driver in the context of an international service provision operation carried out using a light vehicle:
  • For the carriage of goods, less than 3.5 tonnes
  • For the carriage of passengers, not more than 9 persons

This will continue until July 1st, 2026, when companies subject to the posting certificate will fall within the scope of the lex specialis and therefore the "IMI" declaration system[6].

These companies, whether they are subject to the posting certificate or the prior declaration of posting, must necessarily appoint a representative on French territory responsible for liaising with the agents responsible for the control of road transport, during the posting period and up to 18 months (12 months + 6 months in the event of a justified extension) following the performance of the transport service.

What about companies established outside the European Union? 

Road transport companies established outside the European Union, but which post drivers to carry out freight or passenger transport tasks using heavy vehicles constituting an international service do not, for the time being, have access to the "IMI" system. 

These companies must also:

• Submit a prior declaration of posting using the SIPSI online service[7]. By way of exception, companies established in the United Kingdom file their posting declarations on the European IMI system (this possibility is open as part of the Brexit agreement)
• Appoint a representative on French territory to liaise with the agents in charge of the control, during and up to 18 months (12 months + 6 months in the event of a justified extension) after the performance of the transport service giving rise to the secondment of the driver.

That is, until they are finally granted access to the "IMI" system.

Good to know:

The penalties in the event of incomplete, erroneous, illegible, or erasable information or non-compliance are contained in Article R. 1333-2 of the Transport Code and apply to both the certificate and the copy of the declaration of posting.

For more information, contact our experts!

Sources:

• Ordinance No. 2022-1293 of 5 October 2022 on the posting of employees on wheels or flight attendants in the transport sector
• Minutes of the Council of Ministers of 05 October 2022
• Decree No. 2022-1346 of 21 October 2022 on the posting of employees on wheels or seafaring in the transport sector
• Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 laying down specific rules with regard to Directive 96/71/EC and Directive 2014/67/EU for the posting of drivers in the road transport sector and amending Directive 2006/22/EC as regards control requirements and Regulation (EU) No 1024/2012
• https://transport.ec.europa.eu/transport-modes/road/mobility-package-i/posting-rules_en
   

[1]Directive No. 2020/1057/EU of 15 July 2020

[2]https://www.postingdeclaration.eu/landing

[3]https://www.sipsi.travail.gouv.fr/#/auth/login

[4]Ordinance No. 2022-1293 of 5 October 2022 on the posting of employees on wheels or flight attendants in the field of transport

[5] Decree No. 2022-1346 of 21 October 2022 on the posting of employees on wheels or seafaring in the transport sector

[6] Council of Ministers of 22 December 2022. Secondment of employees on wheels and seafaring workers in the field of transport.

[7] Article 2 of Decree No. 2022-104 of February 1, 2022