In order to take account of the specific features inherent in posting for road transport services, specific rules have been put in place since the transposition into French law of the European directive[1] of 15 July 2020, known as the lex specialis, which came into force on 2 February 2022. As of this date, new rules have been introduced, in particular by adapting pre-existing rules to the road transport sector, which also entails new reporting procedures.
What does this European framework mean in practice?
The lex specialis imposes new reporting and administrative formalities on companies established within the European Union in connection with the posting of lorry drivers. From now on, the following will be identified:
Companies falling within the scope of the lex specialis and posting lorry drivers to French territory to carry out a transport contract
These companies are now subject to the following formalities: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, at their request, with the documents required under the Directive, via “IMI”, as part of checks on compliance with the rules on the posting of drivers;
- No obligation to appoint a representative on national territory.
Companies posting drivers on 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 file a secondment certificate using the French SIPSI[3] teleservice and to appoint a representative on French territory.
However, the introduction of this European framework, which is specific to lorry drivers seconded in the context of an international provision of services, has forced the French government to review the role of the secondment certificate.
Focus on the formalities applicable from 1 January 2023
Since 1 January 2023, in application of the Order of 5 October 2022[4], supplemented by the Decree of 21 October 2022[5], the few companies still subject to the French national system of secondment certificates have been governed by the ordinary law rules set out in the Labour Code. A distinction is now made between :
- The prior declaration of secondment, provided for in the Labour Code and carried out using the SIPSI teleservice, must be made by transport companies seconding their drivers or seagoing personnel in the following situations and for each transport operation:
- Posting between establishments of the same undertaking, or between undertakings in the same group: Drivers of heavy goods vehicles or light vehicles posted in the context of the provision of staff between undertakings in the same group (Article 1(3)(b) of Directive 96/71/EC);
- Secondment via a temporary employment undertaking: Driver of heavy goods vehicles or light vehicles seconded by a temporary employment undertaking established abroad to a user undertaking established in France (Article 1(3)(c) of Directive 96/71/EC).
- By way of exception, the secondment certificate provided for in the Transport Code, which may cover several secondment operations, remains in force in the event of the secondment of a driver as part of an international provision of services using a light vehicle:
- For goods transport: less than 3.5 tons;
- For passenger transport: no more than 9 people;
This will continue until 1 July 2026, the date on which companies subject to the posting certificate will fall within the scope of the lex specialis and therefore within the “IMI” declaration system[6].
These companies, whether they are subject to the secondment certificate or the prior secondment declaration, must necessarily appoint a representative on French territory responsible for liaising with road transport inspection officers during the secondment period and for up to 18 months (12 months + 6 months in the event of a justified extension) following completion of the transport service.
What about companies based outside the European Union?
Road haulage companies established outside the European Union but which post drivers to carry out goods or passenger transport operations using heavy goods vehicles as part of an international service do not currently have access to the IMI system.
These companies must also:
- File a prior posting declaration using the SIPSI teleservice[7]. By way of exception, companies established in the United Kingdom file their posting declarations using the European IMI system (this possibility has been opened up under the Brexit agreement);
- Appoint a representative on French territory responsible for liaising with enforcement officers, during and for 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 driver’s posting;
And that’s until they are finally granted access to the IMI system.
Good to know:
The penalties for incomplete, erroneous, illegible or erasable information, or for non-compliance, are set out in Article R. 1333-2 of the French Transport Code, and apply to both the certificate and the copy of the posting declaration.
For more information, contact our experts!
Sources:
- Order no. 2022-1293 of 5 October 2022 relating to the posting of road and sea workers in the transport sector
- Minutes of the Council of Ministers meeting of 05 October 2022
- Decree no. 2022-1346 of 21 October 2022 on the posting of road-workers and seagoing personnel in the field of transport
- Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 laying down specific rules as regards 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
