Posting of workers: European Court of Justice brings clarity

On 1 December 2020, the European Court of Justice issued an important ruling in the Federation of the Dutch Trade Union Movement case (Federatie Nederlandse Vakbeweging) (C-815/18) concerning the key question: when is there a posting on the territory of another Member State?

International transport

In the context of various international transport agreements, a German and Hungarian transport company provided its services to a Dutch transport company. Both the companies involved belonged to the same group. The transport carried out by the German and Hungarian transport company in the context of this service mainly took place outside the Netherlands. However, the journey of the drivers usually started and ended in the Netherlands.

In the present case, the working conditions contained in the Dutch sectoral collective labour agreement “freight transport” were not applied to the drivers. The non-compliance with this collective labour agreement was denounced by the Federation of the Dutch Trade Union Movement.

The Supreme Court

After the Dutch legal proceedings had been completed, the Supreme Court of the Netherlands (Hoge Raad der Nederlanden) referred a number of preliminary questions to the Court, including:

• Does the Posting of Workers Directive apply to an employee who works as a driver in international transport and therefore performs his work in more than one Member State?
• Which criteria must be used to determine whether an employee working as a driver in international transport is posted to the territory of a Member State?

First, the Court ruled that the Posting of Workers Directive also applies to employees who work as drivers in international transport.

Second, the Court recalled that, in light of the wording and the underlying idea of the Posting of Workers Directive, an employee can be regarded as posted to the territory of a Member State only if the work he carries out there has a sufficiently close link with that territory.

According to the Court, in the assessment of a ‘sufficiently close link’, account must be taken of (i) the nature of the activities carried out by the employee concerned in that territory, (ii) the extent to which the activities of that employee relate to the territory of each Member State and (iii) the proportion of those activities on the territory of each Member State in the transport service as a whole.

The fact that the employees receive their instructions from a company established in another Member State and start and end their daily work in that Member State without any additional factors is not in itself sufficient for the Court to decide on a close link. However, according to the Court, the carrying out of cabotage activities on the territory of a Member State – irrespective of the duration of these activities – automatically indicates the existence of a sufficiently close link.

The Posting of Workers Directive in principle also applies to highly mobile employees such as drivers employed in international road transport. On the basis of European case law, it can be argued however that a (highly mobile) employee is not posted there for lack of a ‘sufficiently close link’ with the territory of the Member States concerned. We advise you to verify the situation of your employees in the light of this ruling.

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