For several weeks, perhaps the most hot topic in the transport sector is the German Act on the minimum wage and its impact on the functioning of Polish carriers. The issue is so urgent and important, that reached me even request the readers to address this issue on the blog. In response to these requests, in this entry I will present their views on the scope of the Act.
Disclaimer 🙂
At the outset, I would like to clear, that my assessment of the new law is based solely on their analysis of both the Law, as well as other legal acts and available publications. But I have at the moment any information about this, as in practice provisions of the Act are carried out by the German customs authorities, as well as to the practices relate to the German courts. Therefore, you should not uncritically accept my views - they rather lead to a discussion or independent analysis of issues.
Widely reported issue
Although the German law on minimum wage or Law for the regulation of a minimum wage algemeinem (in short Mindestlohngesetz - MiLoG ) was adopted on 11.08.2014 r., for a long time except for a few exceptions it was not subject to specific comments and transport went almost unnoticed. Nervous anticipation began in December of last year, when the carriers start arriving signals, that the German authorities also intend to apply the law to the Polish carriers, who carry out transport of any kind on or through Germany. Initially, publications seemed to dominate the view, Polish entrepreneurs rather that they should not specially care (here or here or here). If you take into account, that part of the opinion was expressed by German lawyers, moreover, such a calming reviews cite a more balanced voices (here i here) a significant proportion of people could be born conviction, that in principle there is nothing to worry about.
A different approach presented Polish embassy in Berlin, on the website there were some reports about the practice of application of the Act by the German authorities and are unlikely to pose a problem, that the law will not intepretowana widely (here i here). Any doubts dispelled press conference spokespersons German ministries involved in the implementation of the Act, where explicitly indicated, that the Act will cover all modes of transport. Polish embassy even prepared statement on the principles of the new rules.
Then changed a bit tone of press - calm replaced outrage, that Germany violate the principle of freedom to provide services within the Single Market, and thus violate the fundamental principles of the European Union (here or here or here or here i here).
But there were also some emotionless showing, German law that simply must be used (here or here).
Unfortunately, a large part of the speech seemed to be more based on the belief authors than on the legal provisions. Moreover, the voices alleging non-compliance with European law did not apply to the basic European legislation, which is to refer the matter to. Honorable exception here was one of the Publication in which reference was made to the existing directives governing the posting of workers, This coming from the previous year, and which went completely unnoticed, although it is an important piece of legislation for the correct interpretation of the current situation.
After this lengthy introduction: and what I think about it?
Cabotage pretty sure
A majority vote of showing, that the new regulation does not apply to the Polish carriers or challenging the German legislation as contrary to European law, makes no special distinction between cabotage and other transport modes. In my view, such a distinction is not necessary. While in relation to international transport to and from Germany, and in particular in relation to the transit, the use of the German Law on the minimum wage may raise doubts, then in my opinion, in the case of cabotage operations is rather a foregone conclusion. The need to use these provisions indicate directly because European law, So it is difficult to accuse the German law in this respect is a contradiction with the Community rules.
The rules for the operation of cabotage are regulated Regulation of the European Parliament and of the Council (WE) no 1072/2009 of 21.10.2009 r. concerning common rules for access to the international road haulage market. What is interesting in the discussion refers to the provisions of this regulation rather as an argument against the application of the Act, raising, that Article. 9 Regulation is only a question of the need to comply with regulations of the country by the carrier, which is performed cabotage, on:
a) rules relating to the contract of carriage;
b) the weight and dimensions of road vehicles;
c) requirements relating to the carriage of certain categories of goods, in particular dangerous goods, perishable foodstuffs and live animals;
d) driving time and rest periods;
and) VAT
So if art. 9 says nothing about the local labor laws, the operator of cabotage does not have to follow them.
In my opinion, this argument is not justified, because it ignores one very important detail - the standards of European law result not only of individual articles regulations and directives, but also from the preambles to those acts. Preamble governs the basic assumptions of the legislation, as well as provide an authentic interpretation of its individual provisions. Meanwhile commonly ignored in publications (further to this article) the following text Item 17 the preamble to the Regulation which is, The following:
Carriers engaged in cabotage apply the provisions of Directive 96/71 / EC of the European Parliament and of the Council of 16 December 1996 r. concerning the posting of workers in the framework of the provision of services
What does this statement? Year to, concluded that the European legislator, that each employee is performing cabotage posted worker within the meaning of that directive.
To turn understand, the importance of the fact that the worker's posting, you need to refer to the provisions Directive 96/71 / EC. Art. 3 paragraph. 1 dash drugie (just so determined dash accordance with the principles of legislative technique 😉 ) lit. b is clearly, that Member States shall guarantee workers posted to their territory of employment conditions, including m.in. minimum rates of work.
To sum up, in accordance with Regulation governing cabotage employees implementing such services are posted workers, and such workers must provide minimum rates applicable in the country, in which the cabotage is performed.
In practice, therefore, in my opinion, you can not call into question the use of the German Law on the minimum wage to Polish carriers performing cabotage in Germany.
Like most lawyers love to be right, but this time, I would have really enjoyed, if someone showed me, that is wrong in this regard 😉
International carriage and transit more questionable
Now that we have established, that the employee delegation in Germany have the minimum wage German, you have to answer the question, whether a driver engaged in international transport from Germany or to Germany or transiting through the territory of Germany is posted to work in this country or not. With regard to the lack of transport for such a clear rule as in the case of cabotage operations
The provisions of the Directive 1996 r. here are not especially helpful. Art. 2 paragraph. 1 Although the Directive introduces a legal definition of a posted worker, but it is not very precise. This provision is in fact, that:
"Determination of the posted worker means an employee, for a limited period, carries out his work in the territory of another Member State, than the State in which he normally works ".
In my view, such a definition can be interpreted in different ways. A broad interpretation would imply, that each employee performing duties outside the Polish worker is Polish delegation to another country. Narrow it found, that such delegation would, however, have a more permanent character. At the same time it is difficult to clearly identify, which interpretation is correct.
And with some help here comes a new act - well, unfortunately, the said except omitted in publications - Directive of the European Parliament and Council Directive 2014/67 / EU of 15.05.2014 r. on the enforcement of Directive 96/71 / EC concerning the posting of workers in the framework of the provision of services, amending Regulation (EU) no 1024/2012 on administrative cooperation via the exchange of information on the internal market (IMI Regulation). You can not hide, the European legislator has a talent for concise name acts 😉
As explained in point 7 preamble one of the purposes of the Directive is precisely to improve the implementation and monitoring of the concept of posting and the introduction of a more harmonized at EU level to facilitate a common understanding of the elements.
Is it really the Directive has achieved its goal? You may have doubts.
Art. 4 paragraph. 3 Directive shows, that in order to assess the, if the posted worker performs his work temporarily in another Member State than, in which he normally works, take into account all the factual characterized such work and the situation of the employee, and such elements may include, in particular,:
- fact, that the work is done for a limited period in another Member State,
- date of commencement of the posting;
- fact, that the employee is seconded to another Member State other than the State, in or from which the employee habitually carries out his work in accordance with Regulation (WE) no 593/2008 (Rome I) or the Rome Convention;
- fact, that after the completion of the work or services, for the implementation of which has been delegated, the employee returns to the Member State, from which it was posted, or is in the country to resume work;
- nature of business;
- fact, delegating the employee that the employer provides him with transportation, accommodation or self-catering accommodation or provide reimbursement of related costs, and if so - how it is provided, or what is the method used for the recovery of costs;
Honest, that the above elements in my opinion, is still far from precise. You can, however, get the impression, that the characteristics cited by the European legislator relate rather to a more long-term than staying a few or several hours on foreign territory. Additionally, when the analysis should be carried out in each case taking into account the nature of the posted worker, and transport undoubtedly has its own specifics related to the fact that the constant movement of the employee.
Should be taken into account when interpreting the provisions of this obligation in the spirit of the European treaties stipulate, m.in. freedom to provide services. In the case of the two possible interpretations should therefore give priority to the, which more closely corresponds to the acts of a higher order.
Therefore, can be given an interpretation of the provisions of the Directive, in the case of a short-term stay for the driver on the territory of one country do not have to deal with his delegation to the country, especially since international transport driver in one trip staying in several different countries.
The case law of the Court of Justice of the EU for many years assumed in turn, that the provisions of national law as far as possible be interpreted, in accordance with Community law. Therefore, if we assume, that the Posting of Workers Directive is not treated as a short-term worker's posting of his stay in the territory of another Member State for the provision of transport services, the provisions of the German Law on the basic salary should be interpreted in a way that excludes its application to such transport.
To sum up, in my opinion, more of it is in the, that, with regard to international transport to and from Germany, in particular, to transit through Germany new German rules should not apply. It is also reasonable to claim my opinion, MiLoG that the same provisions are incompatible with European law, but rather simply to interpret them with the spirit of Community law, because the same provisions do not refer directly MiLoG, for which types of transport is used.
While hardly can count on, that to the same conclusions would be the German customs authorities, since you clearly announced what else, so much has a lot of confidence for the German decks judiciary. German courts for years courageous stand in the forefront of the application of Community law and are common questions of law to the Court of Justice of the EU, so you can have hope, that this time will be able to stand up to the aspirations of the executive and conduct yourself interpretation of the provisions of the Act in accordance with European law and also in the interests of Polish carriers.
What to do?
So how do we keep the current? There is no easy answer.
It can be considered as binding provisions of the Act also apply to international transport and transit - this is certainly the safest option, but at the same time binding is with considerable costs.
You can also questioned this interpretation MiLoG - then you should be consistent and not to report employees to transport other than cabotage. Otherwise, you can meet with the alleged inconsistency of actions - if we, we do not need to apply the provisions of the Act, we should not implement parts of the duties, and ignore the rest. In the event of a dispute with the authority you have to question the appointment of a penalty imposed on the Community rules. Guarantee of success, however, there is no.
For these, But who will decide on the first option, and for carrying out cabotage carriers in the next post I will discuss in more detail the provisions of the Act.
Quite tricky affair, after this analysis, it can be concluded, that as long as there is no complete escape, However, all the most wonder how to avoid and what to do in order not to pay penalties.
In my environment issue was raised by small carriers with a small number of sets and by busowców and smaller freighters. It seems to me, that knowledge on the subject is chaotic, some claim, that does not apply to them because they usually pay for the driver's job and not godzinówkę, others are afraid to, that every employee will have to open their own DG and thus avoid rules. Sobriety will come as a punishment, on the other hand will be a time of harvest for lawyers transport.
@ Viekar
With the opening of its own DG I thought – about, whether someone is an employee will be determined because the German legislation, and these can determine the, that the self-employed worker is, however,.
Mr. patrons,
I thank you for entry 🙂
You are here confirms my intuitive understanding of these new provisions.
actually mainly in terms of defining whether the driver is posted to work, or not.
I've heard nightmare scenario talking about this, that soon will follow the example of Germany, the Benelux countries, France, etc., and then ride on the route EN-ES or PT, for example,, administrative nightmare would cost, if any, would be enforceable in accordance with the German interpretation of such legislation.
but it may not happen.
I think, however,, that will have you had with this theme a lot of work 🙂 as soon as they start the real checks Polish carriers, and thus probably also have penalties, and the forks themselves Germans lined szeeeerokie …
question on the sidelines, how do you consider, whether the audit implement provisions of the Act (confirmation of payment to the driver at the rate 8,5eur / h) German customs office has the power to control the documentation of Polish companies?
I greet
steve or
@ SteveVai
The practical aspects of the application of the Act will be in the next post, so please wait a moment 🙂 And as for work, Rather, it will be the work of German firms specializing in serving Polish carriers. Here we can spot different considerations lead, but few Polish lawyers are well versed with the German procedure, which is very important in the presence before the German authorities and courts.
Viekar: avoid penalties is very easy - just pay the minimum wage German Heart 8,50 € gross per hour and 🙂 so seriously, paradoxically penalty may be a way to avoid it - because in this way a trader will open a lawsuit to challenge the provisions of the Act MiLoG before a German court - so much, that going to such a solution must have the nature of poker 🙂
Gewerbe warn before installing the drivers - because it usually raises more problems than good, and at the same time a lot of responsibilities.
Anyway, this structure is common in Germany at the construction works, where probably every "worker" has its own DG - assume it because they get so. offer he can not refuse (or Gewerbe or strands of work) and everything is usually OK to the first inspection, the Finanzamt - then generally open their eyes 🙂
SteveVai: to this nightmare is the cost of administrative and may soon join the paid German motorway 🙂
@ Paul Judek: full agreement on cabotage - use MiLoG here is so obvious and logical, I really do not know how they can appear different opinions on this topic ...
The rest of my views on the present MiLoG on your blog 🙂
SteveVai, @ Paul Judek: Germany is coercion attorney even at the lowest level, So only German lawyers (Lawyer), Polish or lawyers / legal advisers registered in the DE on the list of foreign lawyers (but not at every level) will actually be able to conduct the case before a German court…
Regards, A.K.
Sir Paul, as always a very interesting article.
Apart from the same issue of the minimum wage fear, that is just the beginning of the German market closing service of the poorest countries in the EU. Remains the only hope, Now our politicians that the requirement to bring German companies operating in the Republic of Poland paid to local workers rate the same as in Germany…
Of course, Mr Paul, I meant rather to draw attention to how it reacts small business and what is the understanding of this issue. Known, Firms that have already large developed strategy, because they have access to all the staffs and latest information. Unfortunately, the problem touches “little ones” who wake up with his hand in the potty, as well as those who are oldest not easily move in the thicket of news media. Although Germany and so behave fairly quiet compared to last Norwegians who probably want to deprive at all other entry.
@ Viekar
Unfortunately, in the small carriers that actually hit most, first because they do not have proper negotiating position with drivers, and secondly, do not always have the knowledge and tools, to use it.
Sir Paul – very interesting analysis of the problem.
The only thing that is certain is that, that the victim of weapons and our diplomacy nothing. Unfortunately, the same is true of the other States of the region. Commonly known in the art of diplomacy retaliatory moves should be developed and implemented quickly. Of course, in accordance with European law with the countries of the said region as soon as possible to introduce legislation to protect our market such as. trade or intensify checks or enter the model Austria administrative requirements in relation to foreign carriers and in particular the German, who knows, that they do not already have the newest fleet. The split in the EU acts on more and more planes, and it leads only in the direction of the slow marginalization of its importance, as a consequence of disintegration.
T-Mobile my ears verbal construction: “State of the Iberian peninsula join the protest” . For many of these countries there is no 😉 so confident about Portugal because it comes in Gibraltar would not bouncing Germany.
Knowing the Germans that the protests were factored in, and they know how much MiLog States competes labor costs and how much quality. It comes, that countries in a similar situation to the Polish EU is not much…
So far Germany forgive 🙂
http://www.polskieradio.pl/42/273/Artykul/1365609,Niemcy-zawieszaja-przepisy-ws-placy-minimalnej-dla-przewoznikow-tranzytowych-Problemy-jednak-pozostaja
thanks for posting, I'm waiting for another of the detailed provisions of the Act 😉
My buddy is employed in Poland on the Polish conditions, but mainly performs cabotage transport after Germany and international. Can the cabotage will be punished ?
@ Sides
For now, assume, that such cabotage operations are subject to MiLoG, but we'll see, what she says European Commission – for the time being extended by 40 days term, in which the Germans have a comment about the charges brought against them.
Nasty business, that once again looking for a way to plucked enterprising people.. Jak nie to, it will invent something else, and so on..
I remember in high school came one Lord and ecstatic as we were told in the Union will be great, as cows will produce more milk, carry the same whopping chicken eggs, etc.…. ADVERTISING leveraged trade… Today the Lord would ask this simple question “Who pays for the Lord's appearance?” – However, this old story and our entry into the Union no longer go back…
But is that the EU is so bad? Each of us must make himself personally own “balance sheet” our membership… How much of the milch cow of the Union “but” tj. draws, and how much it “puts”, that is, whether it is on the upside or on the downside… In my opinion, a Polish state, from time to time should be made “balance sheet” our membership of the EU… - Brits will not sting, and every now and then scare, that the sign off of the institution
In retrospect, was to be expected from the Germans such strokes… enlargement and such. entry into our market without restriction was for them as much as possible on the plus, download weight "cheap roboli" too, but to compete in the long run with Polish companies probably NOT ...
So do it, what they should do to protect their companies ... and as someone thought, that we will defend it probably is a lunatic ... Our business is to defend the Polish Government, but ...... "Horse (government) How is everyone sees "... so I do not count too much on our pets with Rural ...
Interesujaca analysis. Maybe I should expand on the issue of mandatory application of the standards applied in accordance with Article 9. rozoprzadzenia Rome I, because in these standards, and not on the posting of workers directive is based interpretation, in accordance with whom the workers performing international and transit trips in Germany in May prawio to the German minimum wage
@ Melesza
The analysis is based on the provisions of the Posting, because in my opinion there is no basis whatsoever for assigning those standards mandatory nature of the rules applicable.
Anyway, it seems to me that the Germans do not forgive ,and I heard that France also thought about what similar. The most interesting is that the Polish government in this direction do not do. By this fall, after a lot of companies and mass unemployment will be on the dole , but we are a rich country.
Please advice in this case is: Podstawił auto carrier for shipment in accordance with the order. Goods have to be ready and carrier such information received, However, it turned out, and that it is not ready the next day. in terms of the order that we have entered ” In the case of the forward substitution vehicle loading or unloading the Contractor must obtain written permission from the Principal to leave the place of loading or unloading. Is obliged to wait for the loading or unloading of the right to pay for parking under the conditions described in this section.” The carrier could not wait for the goods with due to other binding deadlines for freight and drove off. The next day he took a different carrier. I wanted to pay you for your car driveway 100 euro, However, he sent an invoice for 400 euro, or the amount of freight. No arguments and explanations do not result in. How to resolve the matter? Does the carrier have the right to request 400 euro, nevertheless, he should expect to charge under the terms of the order.
@ Sides
Just as to, now that the government does not do anything, I can not agree. Yes – woke up too late, but are now trying to counter new rules. The final vote, and so probably will be for the Court of Justice of the EU.
@ Benny
This article devoted MiLoG. Please question the matching article.
Maybe they do but not visible , and it's too late to wake up that this is probably the Polish standard. Anyway if the Union is put off otherwise snared Polish companies. After all, we are one of the strongest countries , which organize transport in Western Europe.
@ Sides
Probably the matter will have to be dealt with at the European level. Moreover, assuming, that take into account diet and a lump sum, most carriers already meets the requirements MiLoG.
So most of the carriers , that already have an established reputation and a large fleet of , I stand on it. But I think it is not in the hundreds of companies , who have several cars and do not give yourself the council.
My father was kidnapped by the Third Reich worked as a farmhand for 4 years 11 months for the buck. I understand ,now that Germany will not have anything against it ,that do not step out of the compensation payment which had finished but his father was too old to fight for it so you do not get anything, but step out of alignment to the wage that the German workers were getting on the same positions. From what I know father said ,that the German “colleague” earned 16 times more from him and even his father took from what I got 15% as a tax and not a German . Co Pan na to ?. I note ,writes that seriously .
I jak to wygląda w praktyce? Dyrektywy dyrektywami a ustawy ustawami.
@ erian
Żaden organ ani sąd jeszcze się w tej kwestii nie wypowiadał, a dyrektywy mają pierwszeństwo nad ustawami.