What constitutes posting?
Dutch legislation on cross-border posting in road transport has been in force since 1 June 2023. This legislation requires transport companies to file notifications of posted drivers in the European Notification Portal and to offer them the core rights they are entitled to.
What constitutes posting under the new mobility package rules?
Posting means that drivers work temporarily in a country other than the one in which their employer is based. This may affect the terms of employment they are entitled to. If they are posted in a country with a higher minimum or collective wage than in the home country, they are entitled to the higher wage. Other terms of employment, such as holiday entitlement, may also be different.
What constitutes posting and where should you report drivers?
Given below is an overview to check whether employees are being posted and if so, in which portal drivers should be reported to.
| Basic service provision: The foreign driver is employed by company based in another EU Member State. | Inter-group placement: A foreign driver employed by an establishment within a group or concern in another EU country is posted to an establishment within the same group in the Netherlands. | Temporary employment: The driver is hired by a transport company based in the Netherlands through an employment agency from another EU country. | |
| Cabotage | The rules of the European Mobility Package apply. The posting must be reported via the European portal (IMI). | This falls under the rules of the WagwEU. The posting must be reported in the Dutch portal. | This falls under the rules of the WagwEU. The posting must be reported in the Dutch portal. |
| Non-bilateral transport (cross-trade) | The rules of the European Mobility Package apply. The posting must be reported via the European portal (IMI). | This falls under the rules of the WagwEU. The posting must be reported in the Dutch portal. | This falls under the rules of the WagwEU. The posting must be reported in the Dutch portal. |
| Bilateral transport | Does not constitute posting. No report required. | Does not constitute posting. No report required. | Does not constitute posting. No report required. |
| Transit transport | Does not constitute posting. No report required. | Does not constitute posting. No report required. | Does not constitute posting. No report required. |
Explanation of different types of transport
The Mobility Directive distinguishes between different types of transport.
What is cabotage?
This is transport movement between two points within the borders of one EU country, carried out by a transport company based in another EU country. Cabotage always involves posting. Cabotage transport is allowed on a limited basis. Cabotage transport in and through countries outside the EU is prohibited.
Example: a driver is employed by a transport company based in Germany. He is loading a consignment of goods in Groningen following an international transport from Germany to the Netherlands. He unloads this consignment in Breda. This trip takes place entirely within the Netherlands.
What is third-country transport or cross-trade?
This is transport between two EU countries, but carried out by a transport company not based in one of the two countries.
Example: A driver employed by a transport company based in the Czech Republic is transporting a load of goods from France to Venlo in the Netherlands. The driver is posted for the part of the trip he drives in the Netherlands. For that part of the trip, he is entitled to certain Dutch terms of employment, such as statutory or collective wage.
What is bilateral transport?
This is transport between the transport company’s country of establishment and another EU country. In this case, the driver loads goods in the country of residence and unloads goods in the country of destination, and vice versa.
Example: A driver employed by a French transport company loads goods in France and unloads them in the Netherlands. Then he loads in the Netherlands and drives back to France, where he unloads the goods.
In bilateral transport, one or more additional loading and unloading operations are allowed during the journey. An exemption means that the operation does not constitute posting and there is no reporting requirement. The two exemption situations are explained below.
Exemptions
Situation 1. A driver performs a bilateral trip from the country of establishment of his transport company to the Netherlands. On the outward journey, he may load and/or unload goods once on his way to the Netherlands in the countries he passes through. This can also be done one more time on the way back. The condition is that loading and unloading is not done in the same country.
Example: A French driver loads in France and unloads in the Netherlands. On the way to the Netherlands, he also picks up a few pallets in Luxembourg and unloads them in Belgium. On the way back from the Netherlands to France, he again picks up pallets in Belgium and unloads them in France.
Situation 2. A driver performs a bilateral trip from the country of establishment of his transport company to the Netherlands. On the outward journey, he does not load and/or unload in the countries he crosses. In that case, on the way back, he can load and/or unload twice in the countries he crosses. The reverse is also possible, loading and/or unloading twice on the way back and not on the way out. The condition is that loading and unloading is not done in the same country.
Example: A French driver loads in France and unloads in the Netherlands. On the way to the Netherlands, he also picks up a pallet in Luxembourg and unloads it in Belgium. In Belgium, he picks up another pallet, which he then unloads in the Netherlands before driving on to his final destination in the Netherlands. On the way back from the Netherlands to France, he is no longer permitted to load and/or unload extra consignments.
What is transit transport?
This involves crossing an EU or third country without the driver loading or unloading there. There is no posting involved in transit.