As recently reported on the news , the issue of posted drivers within the EU continues to provoke heated controversy and to give rise to the concerns and protests of those operators who are exposed to the consequences of the violation and the elusive application of the rules governing this institution.
Given the undeniable importance of this issue, especially after the movement of the EU borders towards the East, it is necessary to avoid journalistic simplifications (though understandable and partly inevitable), to try to understand under which conditions using the services of posted drivers can be considered legitimate.
According to Directive n. 96/71 / EC, in Italy it is possible to resort to posting for the purposes of performing road haulage services mainly in the following cases:
- posting by an undertaking established in another Member State to an undertaking belonging to the same group and operating in Italy;
- posting by a temporary employment undertaking (so-called “agency”) established in another Member State to a user undertaking operating in Italy (in these cases, we speak of “posting – hire out”).
Among the posting legitimacy requirements, there are:
- temporariness, since the posted worker has to work habitually in the Member State of origin and since the posting is legitimate only for a limited period of time; and
- the existence of an actual contract of employment between the posted worker and the undertaking making the posting.
The partial indeterminacy of the requirements of Directive 96/71 / EC, which came into force when the EU Member States were 15 instead of the current 28, has had a part in facilitating the dissemination of practices through which posting has been improperly used as an instrument of social dumping, for the sole purpose of being able to benefit from the lower cost of the Eastern European drivers’ work, especially with regard to social security.
The adoption of Directive 2014/67 / EU aims at curbing the spread of such violations and circumventions of the posting rules. The Directive identifies an articulate set of criteria which the competent authorities of the Member States should consider in order to verify whether the postings are legitimate, possibly applying the sanctions provided for the cases of violation of the relevant rules.
Directive 2014/67 / EU has also introduced a number of provisions aimed at preventing the abuse of the rules on posting, since it also provides that Member States should adopt the regulatory measures needed to comply with the contents of the Directive within 18 June 2016.
Therefore, it will be necessary to wait for the implementation of the measures outlined in the Directive, in order to verify if it will actually lead to create the conditions for the reduction of cases of infringement and circumvention of the rules on posting.
(Bologna Office – Alessandro Vacca – 0039(0)512750020).
