10.6092/issn.1561-8048/17630
As the title suggests, the essay proposes a study of the regulation of the posting of workers in the road-transport sector, in the light of the Directive (EU) 2020/1057, focusing on the main aspects of this complex recent regulatory intervention. Taking the cue from a general introduction to transport work, the attention is focused on the 2020 Directive, putting it in relation to two previous ones (Directive 96/71/EC and Directive 2014/67/EU), to then analyze the focal points of the new discipline and then conclude with some critical reflections of a proactive nature, with a view to future interventions in the field.
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Stefano Bini
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Italian Labour Law e-Journal
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The posting of workers in the road-transport sector,  in the light of the Directive (EU) 2020/1057
Text.Serial.Journal
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Miscellaneous
2023-07-20
2023-07-07
2023-07-20
2023-07-20
83-94
ILLeJ
Stefano Bini
2023/07/20
10.6092/issn.1561-8048/17630
83
Las Palmas de Gran Canaria University
1561-8048
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European Union
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94
The posting of workers in the road-transport sector,  in the light of the Directive (EU) 2020/1057
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The posting of workers in the road-transport sector,                                Italian Labour Law e-Journal
in the light of the Directive (EU) 2020/1057                                               Issue 1, Vol. 16 (2023)
Stefano Bini                                                                                     ISSN 1561-8048
stefano.bini@ulpgc.es                                             https://doi.org/10.6092/issn.1561-8048/17630




    The posting of workers in the road-transport sector,
       in the light of the Directive (EU) 2020/1057.
                                                  Stefano Bini*

1. Preliminary remarks. 2. Transport work: European coordinates for a complex concept. 3.
Posting of workers in the framework of a provision of services: the Directive (EU)
2020/1057 of the European Parliament and of the Council, of 15 July 2020, in the prism of
two previous Directives (Directive 96/71/EC and Directive 2014/67/EU). 4. The posting
of drivers in the Directive (EU) 2020/1057: a focus on the main aspects. 5. Final remarks.
Between employment and self-employment: the qualification dilemma of road-transport
work.


                                                       Abstract

    As the title suggests, the essay proposes a study of the regulation of the posting of workers in the
    road-transport sector, in the light of the Directive (EU) 2020/1057, focusing on the main aspects
    of this complex recent regulatory intervention. Taking the cue from a general introduction to
    transport work, the attention is focused on the 2020 Directive, putting it in relation to two
    previous ones (Directive 96/71/EC and Directive 2014/67/EU), to then analyze the focal points
    of the new discipline and then conclude with some critical reflections of a proactive nature, with
    a view to future interventions in the field.

    Keywords: Posting of workers, Road transport, European Union.



1. Preliminary remarks.

   The complexity that characterizes contemporary global societies can identify in the
concept of “connection” one of its most emblematic features.
   In the context of such a general trend, the transport sector -as well as the communications
one- represents a sort of central “hub” of the economic, productive and social model,
experiencing an unprecedented dynamism.
   «Globalization, enhanced international trade liberalization and the prevalence of e-
commerce have, in some cases, led to more efficient freight and passenger movements but,




* Associate Professor of Labour and Social Security Law, Las Palmas de Gran Canaria University – Spain
(stefano.bini@ulpgc.es). This essay has been submitted to a double-blind peer review.
    Stefano Bini                                                                             Italian Labour Law e-Journal
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                                                                                                    Section: Miscellaneous




in other cases, have also led to negative consequences for the conditions of work of many
transport workers».1
   Precisely the dimension of the work in this crucial sector and its regulatory models draws
the thematic perimeter of a general reflection, which is perceived as necessary in the global
and European scenario.
   In such a context, the present contribution intends to shed light on the complex
institution of the posting of workers in the road-transport sector, with specific reference to
new regulatory framework designed by the Directive (EU) 2020/1057. What are the main
innovation profiles of this intervention and how do they interact with the previous Directives
over time approved on the subject?
   Starting from an introductory discourse on the outlines of the concept of transport in
general and road transport in particular, the main aspects of the new regulation will be
analytically considered, reporting criticalities and profiles of intervention with a view to
improving the regulatory framework recently introduced. The methodology used is based on
the interpretation of the legal data.


2. Transport work: European coordinates for a complex concept.

   “Transport work”: what is to be understood by this concept?
   Before embarking on a critical study of the normative dimension of the topic above
introduced, we must first explore briefly the conceptual background of the theme, trying to
better understand the definitory dimension in which specific rules on posting of workers are
inserted.
   In fact, the same concept of “transport sector” provides a unifying category, that
embraces a wide and heterogeneous spectrum of expressions, diversified on the basis of
different taxonomic criteria. Thus, the phenomenal picture of a sector that seems to consist
of a set of subsectors emerges clearly: just think, for example, of the classic partition in “water
transport”, “air transport”, “land transport” and, within the latter subsector, in differentiating
between “train transport” and “road transport”.
   This heterogeneity deserves to be carefully kept in mind, to properly explore the research
perspective that focuses on the different forms of work in this “macro-sector”: road
transportation workers, civil aviation staff, railways staff, seafarers and inland waterway staff:
   Already at an initial approximation, it can be said that the same empirical observation of
the macrophenomenon “transport”, suggests considering a heterogeneous set of
subcategories and sectors, which coincide with the methods, the contexts and the means by
which the same transport is expressed and realized.
   Moreover, the complexity inherent in the concept of transport is also confirmed by
regulatory sources: in particular, if we consider the European context, it is worth pointing
out the Treaty on the Functioning of the European Union (TFEU), whose Title VI is


1 ILO, Guidelines on the promotion of decent work and road safety in the transport sector, Geneva, 2020, 7. See L. Battista,
Il lavoro sommerso e il ruolo dell’Autorità Europea del Lavoro, Cacucci, Bari, 2022.

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dedicated to “Transport” and is explicitly applied «to transport by rail, road and inland
waterway».2 It is thus evident that the very application profiles of the Treaty are projected
into a heterogeneous dimension, in order to regulate different fields and areas of a unitary
phenomenon, essential and crucial for the European Union project.
    In fact, as article 90 TFEU makes clear, «The objectives of the Treaties shall, in matters
governed by this Title, be pursued within the framework of a common transport policy», for
whose concrete realization, it is recognized the need to determine -among other things-
«common rules applicable to international transport to or from the territory of a Member
State or passing across the territory of one or more Member States».3
    Indeed, the establishment of a common transport policy in general, based on a common
regulatory framework, is considered essential in order to realize and accomplish the design
of a single market project: delimiting the perimeter of the analysis, more in particular, road-
transport represents an emblematic and strategic sector for the European economy,
functional to the free movement of people and capital.
    In other words, it can be said that both the transport system and its infrastructure
network, together, constitute a pillar of Community integration, which deserves to be
carefully considered, governed and regulated, seeking solutions oriented towards
sustainability (environmental, but also social) and safety.
    As well highlighted in the European Union context, there is a strong need to keep a
constant focus on transport policies that help to develop effective solutions, integrated and
intermodal, to structural problems, such as poor and uneven quality of infrastructure, poor
environmental sustainability of transport, congestion of road and air traffic.4
    Hower, despite this necessity, it should be noted that «la evolución de la política de transportes,
dirigida a la creación de un mercado común, donde se consagrase la libre prestación de los servicios en el marco
de la Unión Europea (en adelante UE) no ha dado lugar a una legislación conjunta adecuada a sus
especialidades, ni tampoco se ha conformado un marco armonizado de normas sociales en dicho ámbito».5
    Actually, on the regulatory side there is a substantial general gap in European legislation
on transport and much remains to be done, even if interesting and encouraging signals in
this sense can be found, starting from the Communication from the Commission to the
European Parliament, the Council, the European Economic and Social Committee and the
Committee of the Regions, on “Sustainable and Smart Mobility Strategy – putting European
transport on track for the future”.6



2 Article 100.1, TFEU.
3 Articles 90 and 91.1, TFEU.
4 European Union, Transport. Safe, sustainable and connected transport, http://xurl.es/inby6 (last visit: 17.05.2023).

See also European Commission, Directorate-General for Mobility and Transport, EU transport in figures –
Statistical pocketbook 2021, Publications Office, 2021, http://xurl.es/z4szg (last visit: 17.05.2023).
5 Ribes Moreno I., Los contratos de trabajo de los trabajadores del transporte desde la perspectiva del derecho social europeo y la

política social europea: aspectos críticos, in Fotinopoulou Basurko O. (Dir.), Los trabajadores del transporte en el Derecho de
la Unión Europea, Aranzadi, Cizur Menor, 2022, 50: «the development of transport policy, aiming at the creation
of a common market, where freedom to provide services is enshrined within the framework of the European
Union (hereinafter EU) has not led to a joint legislation appropriate to their specialities, nor a harmonised
framework of social standards has been established in this area».
6 COM(2020) 789 final, Bruxelles, 9.12.2020.



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   The Communication presents an interesting vision centred on the paradigm of a crucial
transition: the «irreversible shift to zero-emission mobility»,7 whose chances of achievement
pass for a set of flagship initiatives, strongly oriented to ecological, sustainable, smart and
resilient mobility.
   Nevertheless, from a labour point of view, the Communication presents very few
references, merely pointing out that «The sector’s most valuable asset by far is its people and
the sustainable and smart transition will not be possible without the support and buy-in of
transport workers. However, certain parts of the transport sector often suffer from harsh
working conditions. Precarious working conditions, including long working hours, periods
spent away from home and low paid work, are exacerbated by a lack of respect for, and
proper enforcement of, applicable labour standards. Providing higher social standards would
contribute directly to reverse the current general lack of attractiveness of the sector. The
workforce is rapidly ageing and significant shortages of labour force are already very visible
in certain occupations. The issues faced by the transport workers have been exacerbated by
the COVID-19 pandemic. This situation risks deteriorating further if no action is taken».8
   Working conditions, working hours, low wages, labour standards, workforce ageing: these
are the priorities identified in the Communication, which, however, merely mentions a
diagnosis of the phenomenon, identifying some of the main problems affecting work in the
sector, but without going further, proposing lines of action and intervention.9


3. Posting of workers in the framework of a provision of services: the Directive (EU)
2020/1057 of the European Parliament and of the Council, of 15 July 2020, in the prism
of two previous Directives (Directive 96/71/EC and Directive 2014/67/EU).

   Focusing the attention on the road-transport work, it seems interesting to highlight that,
within the heterogeneous profiles that make up the “social issue” of this specific sector, a
peculiar interest is covered by the posting of workers in the framework of a provision of
services.
   As is known, in general terms, the posting of workers in the framework of a transnational
provision of services occurs when, under a commercial agreement between companies
resident in different States of the European Union, a company temporarily posts an
employee abroad, in order to work in a Member State other than the usual one, in which the
employer is established.
   On the point, it is worth starting the reflection from the Directive 96/71/EC of the
European Parliament and of the Council of 16 December 1996, that presents a «“hard core”
of clearly defined protective rules»10 for posted workers: «This Directive shall apply to

7 COM(2020) 789 final, Bruxelles, 9.12.2020, 3.
8 COM(2020) 789 final, Bruxelles, 9.12.2020, § 93.
9
  COM(2020) 789 final, Bruxelles, 9.12.2020, § 94: «This is why the Commission will consider measures across
the different modes of transport to strengthen the legislative framework on conditions for workers, and ensure
the correct implementation and give more clarity on the applicable social rights in line with the various
instruments available to implement the European Pillar of Social Rights».
10 § 14, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996.



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undertakings established in a Member State which, in the framework of the transnational
provision of services, post workers (…), to the territory of a Member State».11 It is, as is
evident from just these few words, a Directive which is not expressly designed exclusively
for the transport sector, but which is at the same certainly applicable, with exclusion of
«merchant navy undertakings as regards seagoing personnel».12
    As clearly highlighted in doctrine, the Directive 96/71/EC represents a significant
intervention of the European legislator, in order to identify «in via generale e preventiva il punto
di equilibrio fra la libertà fondamentale dell’impresa di esercitare la propria attività “a tutto campo” sul
territorio dell’Unione e le esigenze imperative di tutela dei lavoratori sul territorio dello Stato membro nel
quale l’attività economica dell’impresa era temporaneamente esercitata».13
    Precisely these imperative protection requirements arise from the risk of fraud and abuse
in the application of labour and social security legislation in this field and, without going
unnecessarily into the details of the Directive 96/71/EC, it is sufficient to highlight that in
order to ensure a more effective implementation of the Directive 96/71/EC, the Directive
2014/67/EU of the European Parliament and of the Council of 15 May 2014, “on the
enforcement of Directive 96/71/EC concerning the posting of workers in the framework
of the provision of services and amending Regulation (EU) No 1024/2012 on administrative
cooperation through the Internal Market Information System (‘the IMI Regulation’)” has
been adopted.
    The Directive 2014/67/EU emphasizes that an «adequate and effective implementation
and enforcement are elements in protecting the rights of posted workers and in ensuring a
level-playing field for the service providers, whereas poor enforcement undermines the
effectiveness of the Union rules applicable in this area. Close cooperation between the
Commission and the Member States, and where relevant, regional and local authorities, is
therefore essential, without neglecting the important role of labour inspectorates and the
social partners in this respect. Mutual trust, a spirit of cooperation, continuous dialogue and
mutual understanding are essential in this respect».14
    Within this trajectory of these regulatory interventions, the Directive (EU) 2020/1057 is
situated and deserves to be interpreted as the «adaptación de la Directiva 96/71 al transporte,
establece el marco legal por el que determinadas operaciones de transporte por carretera deben considerarse
desplazamiento de trabajadores».15
    It is precisely the idea of adapting the regulatory framework of the Directives 96/71/CE
and 2014/67/EU to the specific road-transport sector that inspires the Directive (EU)
2020/1057, also in the light of events that occurred in the years preceding its approval, in


11 Art. 1.1, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996.
12 Art. 1.1, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996. Cf. ECJ
1 December 2020, case C-815/18 (Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV and
Others).
13 Traversa E., Il distacco dei lavoratori, in Carinci F., Pizzoferrato A. (Eds.), Diritto del lavoro dell’Unione Europea,

Giappichelli, Turin, 2015, 154-155. See also Hennion S., Le Barbier-Le Bris M., Del Sol M., Droit social européen
et international, PUF, Paris, 2013, 233-308.
14 § 16, Directive 2014/67/EU of the European Parliament and of the Council of 16 December 1996.
15 Parra Gutiérrez J.P., La directiva 2020/1057 sobre desplazamiento de trabajadores en el sector de transporte por carretera.

Primeros pasos de una regulación esperada y necesaria, in Labos, 2023, 1, 96.

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the national regulatory landscape, which had highlighted the real risk of the adoption by each
individual Member State of a heterogeneous spectrum of fragmented and inconsistent
measures, hampering the smooth and correct functioning of the road-transport dynamics16.
    In any case, it would not be correct to say that the perimeter of the Directive 2020/1057
is limited only to the issue of posting workers in the road-transport sector: in fact, it also
intervenes -especially on the conditions for carrying out checks on compliance with the limits
in driving times and rest periods- on the ground of Directive 2006/22/EC, of the European
Parliament and of the Council of 15 March 2006, “on minimum conditions for the
implementation of Council Regulations (EEC) No 3820/85 and (EEC) No 3821/85
concerning social legislation relating to road transport activities and repealing Council
Directive 88/599/EEC”.17


4. The posting of drivers in the Directive (EU) 2020/1057: a focus on the main
aspects.

   Focusing on the posting of workers profile, it can be said that the Directive (EU)
2020/1057 is conceived as lex specialis of the Directive 96/71, with regard to the road-
transport sector, as clearly specified in the article 1.1, that refers to «specific rules as regards
certain aspects of Directive 96/71/EC relating to the posting of drivers in the road transport
sector and of Directive 2014/67/EU relating to administrative requirements and control
measures for the posting of those drivers».18

16 Reference is made here to a specific profile of significant interest: the measures adopted in the Austrian,
German and French legal systems, emblematically represented, in the latter, by the so-called Loi Macron (Décret
n° 2016-418 du 7 avril 2016, adaptant le titre VI du livre II de la première partie du code du travail aux entreprises de transport
détachant des salariés roulants ou navigants sur le territoire national et modifiant le code des transports; on the point, see -ex
multiis- Cascales M., Fernando J., Medidas nacionales unilaterales versus quiebra del mercado interior. La “Ley Macron”, in
Tráfico y Seguridad Vial, 2016, 209). In a nutshell, the 2016 Loy Macron “emphasizes” the scope of Article 9.1,
letter b) of the Directive 2014/67, about “Administrative requirements and control measures”, providing for
particularly stringent checks on drivers passing through French territory: «La actitud de estos países pone de manifiesto
que existía un riesgo evidente de que cada Estado adoptara sus propias medidas de control, que convertirían al transporte
internacional en Europa en una inadmisible gymkana» (Parra Gutiérrez J.P., ibidem, 97). So, in such a critical scenario,
between 2015 and 2017, a plurality of infringement procedures was promoted against the aforementioned
Member States, until reaching, in 2017, a proposal for a Directive on the workers in road transport, presented
by the European Commission.
17 With reference to the Italian legal system, see the “Legge delega” 4 August 2022, No. 127 and the related

Legislative Decree 23 February 2023, No. 27 – Implementation of the Directive (EU) 2020/1057; regarding
the Spanish legal system, see the “Real Decreto-ley” 1 March 2022, No. 3, “de medidas para la mejora de la sostenibilidad
del transporte de mercancías por carretera y del funcionamiento de la cadena logística, y por el que se transpone la Directiva (UE)
2020/1057, de 15 de julio de 2020, por la que se fijan normas específicas con respecto a la Directiva 96/71/CE y la Directiva
2014/67/UE para el desplazamiento de los conductores en el sector del transporte por carretera, y de medidas excepcionales en
materia de revisión de precios en los contratos públicos de obras”.
18 Article 1.1, Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020. Cf.

Parra Gutiérrez J. P., nt. (15) 98; Velázquez Fernández M., La transposición al ordenamiento español del artículo 1 de
la Directiva 2020/1057 (lex specialis) sobre desplazamientos en el sector del transporte internacional por carretera, in Laborum.
Revista de Derecho de la Seguridad Social, 2022, 31, 243-263; Ojeda Avilés A., Trabajadores transfronterizos y migrantes:
los círculos aplicativos en los desplazamientos transnacionales, en Revista de Derecho Social, 2022, 99, 17-38; Contreras
Hernández O., Desplazamiento de trabajadores y la revisión del marco legal europeo: ¿el principio del fin del dumping social y
la competencia desleal?, en Revista de Derecho Comunitario Europeo, 2021, 69, 601-650.

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    Highlighted the essential relationship between the Directive 96/71 and the Directive
2020/1057, it is important to delimit the field of application of the latter, well determined by
its article 1.2: «These specific rules apply to drivers employed by undertakings established in
a Member State which take the transnational measure referred to in point (a) of Article 1(3)
of Directive 96/71/EC»,19 which refers to «post workers to the territory of a Member State
on their account and under their direction, under a contract concluded between the
undertaking making the posting and the party for whom the services are intended, operating
in that Member State, provided there is an employment relationship between the undertaking
making the posting and the worker during the period of posting».20
    In these words, we can find, therefore, the typical situation of posting of workers, in the
context of a transnational provision of services. But how can we identify the situations that
do not fall within the scope of the Directive 2020/1057? The heterogeneity of scenarios and
cases determines the complexity of the differentiation operation in question.
    However, the Directive itself defines the basic criterion to be taken as a reference, which
is that of the so called “sufficient link”, presented in the following terms: «Balanced sector
specific rules on posting should be based on the existence of a sufficient link between the
driver and the service provided, and the territory of a host Member State. To facilitate
enforcement of those rules a distinction should be made between different types of transport
operations depending on the degree of connection with the territory of the host Member
State».21
    Driver-service provided-territory of a host Member State: this is the fundamental
trinomial; the key concept is represented by the existence of a “sufficient link” between the
driver, the service provided and the territory of a host Member State. And, precisely by
applying the fundamental criterion in question, the Directive proceeds to differentiate some
types of transport, clarifying which cases remain outside the scope of the posting of drivers
Directive.
    So, «a driver shall not be considered to be posted for the purpose of Directive 96/71/EC
when performing bilateral transport operations in respect of goods. For the purpose of this
Directive, a bilateral transport operation in respect of goods means the movement of goods,
based on a transport contract, from the Member State of establishment, as defined in Article
2(8) of Regulation (EC) No 1071/2009, to another Member State or to a third country, or
from another Member State or a third country to the Member State of establishment».22
    Certain operations of an “additional” nature compared to bilateral international transport
are also excluded from the scope of the legislation on posting of drivers provided for in this
Directive, as well as the mere international transport in transit through the territory of a
Member State, that is, «without loading or unloading freight and without picking up or setting

19 Article 1.2, Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020.
20 Article 1.3.a, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996.
21 § 9, Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020.
22 Article 1.3, Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020. See

also § 10, Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020: «It would
be a disproportionate restriction to the freedom to provide cross-border road transport services if the posting
rules, and therefore the terms and conditions of employment guaranteed in the host Member State, would apply
to such bilateral operations».

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down passengers and there is therefore no significant link between the driver’s activities and
the Member State transited».23
   Not even the initial and final phases of a combined transport complement a case of
international posting of drivers, «if the road leg on its own consists of bilateral transport
operations, as defined in paragraph 3 of this Article»:24
   Instead, «Where a driver performs other types of operations, notably cabotage operations
or non-bilateral international transport operations, there is a sufficient link to the territory of
the host Member State. The link exists in case of cabotage operations as defined by
Regulations (EC) No 1072/2009 (6) and (EC) No 1073/2009 (7) of the European Parliament
and of the Council since the entire transport operation takes place in a host Member State
and the service is thus closely linked to the territory of the host Member State. A non-bilateral
international transport operation is characterized by the fact that the driver is engaged in
international carriage outside of the Member State of establishment of the undertaking
making the posting. The services performed are therefore linked with the host Member States
concerned rather than with the Member State of establishment. In those cases, sector-specific
rules are only required with regard to the administrative requirements and control
measures».25
   Article 1.9 of the Directive clearly highlight that «Member States shall ensure that, in
accordance with Directive 2014/67/EU, terms and conditions of employment referred to in
Article 3 of Directive 96/71/EC, which are laid down by national law, regulation or
administrative provision, or by collective agreements or arbitration awards which, in their
territories, have been declared universally applicable or otherwise apply in accordance with
Article 3(1) and (8) of Directive 96/71/EC, are made available in an accessible and
transparent way to transport undertakings from other Member States and to posted drivers.
The relevant information shall, in particular, cover the constituent elements of remuneration
rendered mandatory by such instruments, including, where relevant, by collective agreements
that are generally applicable to all similar undertakings in the geographical area concerned».26
   With regard to the administrative requirements and controls measures which the Member
States may impose in case of posting of drivers, article 1.11 significantly limits the perimeter
of the bureaucratic obligations that can be introduced, providing for a numerus clausus,27 thus

23 § 11, Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020: «The
qualification of the driver’s presence in a Member State as transit is, therefore, not affected by stops, for
example, for hygiene reasons».
24 Article 1.6, Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020. See

also § 12, Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020: «When a
driver is engaged in a combined transport operation, the nature of the service provided during the initial or
final road leg is closely linked with the Member State of establishment if the road leg on its own is a bilateral
transport operation. By contrast, when the transport operation during the road leg is carried out within the host
Member State or as a non-bilateral international transport operation, there is a sufficient link with the territory
of a host Member State and therefore the posting rules should apply».
25 § 13, Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020.
26 Article 1.9, Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020.
27 Article 1.11, Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020: «a)

an obligation for the operator established in another Member State to submit a posting declaration to the
national competent authorities of a Member State to which the driver is posted at the latest at the
commencement of the posting, using a multilingual standard form of the public interface connected to the

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overcoming the criticalities emerged in the previous regulatory scenario,28 and enhancing the
potential of a fundamental tool: the so called “Internal Market Information System” (‘IMI’).
    The latter -established by Regulation (EU) No 1024/2012 of the European Parliament
and of the Council of 25 October 2012, on administrative cooperation through the Internal
Market Information System and repealing Commission Decision 2008/49/EC (‘the IMI
Regulation’)- has been defined as a «“red social” para autoridades de los Estados de la Uniàon
Europea, a través de la que intercambian información sobre cuestiones tan variadas como restitución de bienes
culturales, cualificaciones profesionales o control de armas de fuego» and «una de las secciones de IMI se
dedica a la cooperación administrativa para el control de desplazamiento de los trabajadores en el marco de
una prestación transnacional de servicios».29
    It is a fundamental instrument -both in general and in particular, with regard to the
complex road-transport sector- to facilitate communications (especially between the
European authorities) and administrative cooperation.
    With specific reference to the relationship between transport companies and IMI, it
should be noted that, as of 2 February 2022, the European Commission has made operational
a dedicated public interface system, connected to the Internal Market Information System,
on which the declaration of posting of drivers by road-transport operators may be
transmitted to the competent authorities of a Member State, pursuant to article 1 of the
Directive 2020/1057.30




Internal Market Information System (‘IMI’), established by Regulation (EU) No 1024/2012 (…); b) an
obligation for the operator to ensure that the driver has at his or her disposal in paper or electronic form and
an obligation for the driver to keep and make available when requested at the roadside: (i) a copy of the posting
declaration submitted via IMI; (ii) evidence of the transport operations taking place in the host Member State,
such as an electronic consignment note (e-CMR) or evidence referred to in Article 8(3) of Regulation (EC) No
1072/2009; (iii) the tachograph records and in particular the country symbols of the Member States in which
the driver was present when carrying out international road transport operations or cabotage operations, in
accordance with registration and record-keeping requirements under Regulations (EC) No 561/2006 and (EU)
No 165/2014; (c) an obligation for the operator to send via the public interface connected to IMI, after the
period of posting, at the direct request of the competent authorities of the Member States where the posting
took place, copies of documents referred to in point (b) (ii) and (iii) of this paragraph as well as documentation
relating to the remuneration of the driver in respect of the period of posting, the employment contract or an
equivalent document within the meaning of Article 3 of Council Directive 91/533/EEC (21), time-sheets
relating to the driver’s work, and proof of payments».
28 § 18, Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020: «Difficulties

have also been experienced in applying the rules on the posting of workers specified in Directive 96/71/EC
and the rules on the administrative requirements laid down in Directive 2014/67/EU to the highly mobile road
transport sector. Uncoordinated national measures on the application and enforcement of the provisions on
the posting of workers in the road transport sector have generated legal uncertainty and a heavy administrative
burden on non-resident Union operators. This has created undue restrictions to the freedom to provide cross-
border road transport services, with negative side-effects for jobs and the competitiveness of operators.
Therefore, administrative requirements and control measures need to be harmonised. This would also prevent
operators from suffering unnecessary delays».
29 Parra Gutiérrez J.P., nt. (15),101.
30 See Commission Implementing Regulation (EU) 2021/2179 of 9 December 2021, on the functionalities of

the public interface connected to the Internal Market Information System for posting drivers in the road
transport sector, that «specifies the functionalities of the public interface connected to the Internal Market
Information System (‘IMI’) for the purposes of Article 1(11) of Directive (EU) 2020/1057» (article 1).

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     Stefano Bini                                                                              Italian Labour Law e-Journal
                                                                                                      Issue 1, Vol. 16 (2023)
                                                                                                      Section: Miscellaneous




5. Final remarks. Between employment and self-employment: the qualification
dilemma of road-transport work


    The critical consideration of the most peculiar aspects characterizing the Directive (EU)
2020/1057 allows to develop some short observations -here presented as final remarks and
conceived as possible basis for future reflections, in a de jure condendo perspective- around a
key aspect of the theme.
    In general terms, with specific reference to the road-transport sector, the recent
intervention in posting of workers in the framework of a provision of services field, can be
considered as necessary and appropriate, in the light of the critical evidences previously
emerged.
    In particular, especially positive is the critical consideration of two pillars of the Directive
(EU) 2020/1057: on one hand, the taxonomical contribution developed regarding the
different categories of transport -as above highlighted, based on the “sufficient link”
criterion, functional to make clear about the scope of application of the discipline on posting
of workers- and, on the other hand, the simplifying effort realized on the administrative
requirements and control measures ground.
    But, if we examine the topic in a broader perspective, it seems essential to point out a
question that seems to be crucial, in order to evaluate the real and effective impact the
Directive (EU) 2020/1057 can concretely produce, represented by the qualification dilemma
of road-transport work, as a sector situated just in the middle of a decisive tension between
employment and self-employment.
    Actually, the qualification -precisely in terms of self-employment or employment- of the
road-transport work relationship is undoubtedly one of the major open questions that
characterize the subject under study. As is known, in fact, the relevance of the theme derives,
in general terms, from a specific profile: «fraudulent contracting of work in the grey area
between genuine forms of employment and self-employment is a source of low-wage
competition and social dumping».31
    As pointed out, «Regarded in the wider social context, the use of false self-employed
drivers can be related to the free movement of labor and services and the possibility exploit
the economic and social cleft between East and West in the EU. The deregulation and
liberalization of the road haulage market and the lack of social harmonization within the EU
help to explain the complex background to the problem as well».32
    So, matching the topic object of the present study, with the basic essence of the
qualification’s question here briefly introduced, it emerges clearly the relevance of the
problem, being the perimeter of the Directive (EU) 2020/1057 evidently limited to the only
employment relationship area.


31 Thörnquist A., Truck Drivers in the Grey Area between Employment and Self-employment: Swedish Experiences, in Nordic
Journal of Working Life Studies, 2019, 9, 33. In general terms, see also García Murcia J. (Ed.), El concepto de trabajador
asalariado: notas legales, indicios y otros indicadores de origen jurisprudencial, Tecnos, Madrid, 2023.
32 Thörnquist A., ibid, 45. See also Luján Alcaraz J., Los transportistas en las fronteras del contrato de trabajo calificación

jurídico-laboral de la actividad de transporte, en Revista del Ministerio de Trabajo e Inmigración, 2009, 83, 101-123.

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 Stefano Bini                                                                     Italian Labour Law e-Journal
                                                                                         Issue 1, Vol. 16 (2023)
                                                                                         Section: Miscellaneous




   With reference to self-employment in the road-transport sector, in order to avoid a
possible elusive effect of the positive impact Directive (EU) 2020/1057 can produce, it seems
mature the time for a debate on a possible regulation, expressively dedicated to autonomous
drivers, so as to the social-dumping practices, focused to strengthen the regulation of the
“social issue” characterizing the phenomenon.




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 Stefano Bini                                                                   Italian Labour Law e-Journal
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Copyright © 2023 Bini Stefano. This article is released under a Creative Commons
Attribution 4.0 International License




https://doi.org/10.6092/issn.1561-8048/17630                                                                94
