Cabotage and posted drivers: two rule books on one journey

A Lithuanian tractor that unloads in Antwerp and then takes a load from Ghent to Liège is doing two regulated things at once, under two instruments. Regulation (EC) No 1072/2009 governs how much domestic work the vehicle may take; Directive (EU) 2020/1057 decides whether the driver counts as posted while it takes it, which brings in the host state’s terms of employment under Directive 96/71/EC. A journey can be lawful cabotage and an undeclared posting at once.

What makes a domestic load lawful cabotage

Article 2(6) of Regulation (EC) No 1072/2009 defines a cabotage operation as national carriage for hire or reward carried out on a temporary basis in a host Member State, which Article 2(3) defines as a state in which the haulier operates other than its own Member State of establishment. The driver’s nationality enters neither definition; the reference point is where the undertaking is established.

Article 8(1) sets one entry ticket — a Community licence, plus a driver attestation where the driver is a third-country national. It is not the only one. Article 8(5) permits any haulier entitled at home to the carriage listed in points (a) to (ca) of Article 1(5), among the kinds of carriage that need no Community licence, to carry out, “under the conditions set out in this Chapter”, cabotage of the same kind or with vehicles in the same category. That licence-free band moved on a date of its own: point (c), as replaced by Regulation (EU) 2020/1055, exempted carriage of goods in vehicles of not more than 3,5 tonnes permissible laden mass until 20 May 2022, and the inserted point (ca) has exempted not more than 2,5 tonnes from 21 May 2022. On our reading, a van of 3,2 tonnes permissible laden mass has needed a Community licence for cabotage since that day and needed none before it; a 2-tonne van still needs none, and Article 8(5) is its route in, within the same Chapter III limits, quota and cooling-off included. Article 8(6) lifts those limits for two other licence-free kinds of carriage: permission to carry out cabotage within own-account carriage and emergency medical relief carriage (Article 1(5)(d) and (e)) “shall be unrestricted”.

Article 8(2) sets the quota. Once the goods carried in the course of an incoming international carriage have been delivered, the haulier may carry out up to three cabotage operations with the same vehicle, or with the motor vehicle of a coupled combination; and the last unloading before leaving the host state must take place within 7 days from the last unloading of the incoming international carriage.

Three details carry weight. The incoming carriage must be fully delivered first: the Commission’s cabotage Q&A states that where it consists of several consignments, cabotage can only start once all of them have been delivered, and that it may start immediately after the last unloading, including on that day. The quota attaches to the vehicle, or in a coupled combination to its motor vehicle, and the same Q&A confirms the operations may be performed with another trailer. And the seven days run from that last unloading, not from the border crossing.

What the three are counted in, however, is not settled at European level. The same Q&A answers that a cabotage operation can in principle involve several loading points, several delivery points or even both, and that it can include one or more consignment notes — but that Member States can limit the number of loading and/or unloading points “by excluding operations with both multiple loading points and multiple unloading points”, within the proportionality bounds it draws from the judgment of 12 April 2018 in Case C-541/16 Commission v Denmark. On both points it says the measures of Member States “can vary” and that the precise national rules should be checked. The quota of three is European law; how many loading points, delivery points and consignment notes one operation may hold is answered in the host state.

Cabotage in more than one Member State

Article 8(2) has a second subparagraph. Within the seven-day limit, hauliers may carry out some or all of the permitted operations in any Member State, on condition that they are limited to one cabotage operation per Member State within 3 days of the unladen entry into the territory of that Member State.

It is not new. The consolidated text prints both subparagraphs of Article 8(2) under the base-text marker: this is original Regulation (EC) No 1072/2009 wording, and Article 19 applied Articles 8 and 9 from 14 May 2010, ahead of the rest of the Regulation on 4 December 2011. What Regulation (EU) 2020/1055 did to Article 8, applicable from 21 February 2022, was to insert paragraphs 2a and 4a, replace the first subparagraph of paragraph 3 and amend paragraph 5. Paragraph 2 it left alone.

The three operations therefore need not all take place in the country of delivery. They can be spread across Member States, at the price of two constraints. The Commission reads the subparagraph as allowing no more than one cabotage operation in a Member State other than the one of the incoming international transport, and each of those must be carried out within three days of the unladen entry into that state. Its worked example is a haulier that delivers into France, performs one cabotage operation there, moves to Germany for a second and to Belgium for a third, with the seven-day clock running throughout.

The four-day cooling-off period

Article 8(2a), also inserted by Regulation (EU) 2020/1055, provides that hauliers are not allowed to carry out cabotage operations, with the same vehicle, or, in the case of a coupled combination, the motor vehicle of that same vehicle, in the same Member State within four days following the end of its cabotage operation in that state. The Commission’s Q&A gives its purpose as avoiding that consecutive international carriages allow hauliers to carry out cabotage “in a way that creates a permanent or continuous activity”.

The Commission’s Q&A sets out how it bites. The ban applies to the motor vehicle that carried out the cabotage, and the Q&A allows the operations themselves to be performed with another trailer. The four days apply each time a cabotage operation is completed and the vehicle leaves the host state, counted from the end of the operation preceding the exit, and the provision is “without prejudice to the right to carry out three consecutive cabotage operations” in the seven days after an incoming international carriage. They apply per Member State, and run even where only one operation was performed there before the vehicle left. During them the vehicle may transit that state, stay in it, or run international carriage to and from it; what it may not do is another domestic load there. Days are calendar days, so a last operation on a Monday ends the cooling-off period at 23:59 on the Friday, and cabotage there resumes from 00:00 on Saturday.

The same logic governs the seven-day window: it starts at 00:00 on the day after the incoming carriage and ends at 23:59 on the seventh day, so a Monday delivery must have its cabotage finished by the end of the following Monday. Regulation (EEC, Euratom) No 1182/71 then adds two rules, not one, and the Commission applies them to the seven-day, three-day and four-day periods alike. Under Article 3(4) a period ending on a Saturday, Sunday or public holiday runs on to the last hour of the following working day; under Article 3(5) any period of two days or more includes at least two working days, and the Q&A does not count public holidays, Saturdays or Sundays as working days. They apply together, which is how the Commission’s worked case reaches its answer: a haulier entering another Member State on a Thursday has a three-day period that would close on the Sunday, is carried to the Monday by the first rule, and runs to Tuesday midnight by the second where the Friday is a public holiday there. The first rule does not reach the four days preceding an international carriage under Article 8(3): Article 3(4) of Regulation 1182/71 excludes periods “calculated retroactively from a given date or event”.

Combined transport has a rule of its own. Under Article 10(7), a Member State may, where necessary to avoid misuse of Article 4 of Directive 92/106/EEC, provide that Article 8 applies to hauliers carrying out the initial or final road legs, within that state, of combined transport operations between Member States; it must notify the Commission before applying such measures, and for those legs it “may provide for a longer period than the seven-day period” and “for a shorter period than the four-day period”. The Commission’s Q&A (question 17) confines this to road legs that do not cross a border.

The evidence, and the four days before you arrived

Article 8(3) is where cabotage becomes a documentation problem. National haulage by a non-resident haulier is only deemed to comply if the haulier can produce clear evidence of the preceding international carriage and of each consecutive cabotage operation carried out. Seven details are listed for each: sender, haulier and consignee identities with signatures and the delivery date; the place and date of taking over the goods and the place designated for delivery; the goods and the packing; the gross mass or quantity; and the number plates of the motor vehicle and trailer.

The sting is in the rest of Article 8(3). Where the vehicle has been in the host Member State within the four days preceding the international carriage, the haulier must also produce clear evidence of all operations carried out during that period — a retrospective demand about journeys finished before the current job began.

Article 8(4) says no additional document is required, and the Commission’s Q&A notes that those details are contained in the consignment note, normally in the CMR format. But the Commission is explicit that this does not stop control authorities using other evidence such as tachograph data, and that the registration of border crossings by the smart tachograph version 2 can be used to determine the presence of the truck in a given Member State. What the tachograph generation means for a used truck is set out in buying a used truck for cross-border work. Article 8(4a) requires the evidence to be presented or transmitted to the inspecting officer on request and within the duration of the roadside check, provides that it “may be presented or transmitted electronically, using a revisable structured format which can be used directly for storage and processing by computers, such as” an e-CMR, and lets the driver contact the head office, the transport manager or any other person or entity to provide it before the check ends.

The host state’s rules come with the load

Article 9(1) attaches the host state’s law to the operation, save as otherwise provided in Community legislation: the conditions governing the transport contract, the weights and dimensions of road vehicles, the requirements for particular categories of goods such as dangerous goods, perishable foodstuffs and live animals, driving time and rest periods, and VAT. The weights and dimensions “may, where appropriate,” exceed those of the state of establishment, but “may under no circumstances exceed” the limits the host state sets for national traffic or the technical characteristics in the vehicle’s proofs under Article 6(1) of Directive 96/53/EC — so a truck allowed a higher national combination weight at home does not carry that allowance into a host state with a lower national limit.

The second rule book: when the driver becomes posted

Article 9 of Directive (EU) 2020/1057 required Member States to adopt the transposing measures by 2 February 2022 and to apply them from that date. The Directive works by exception. Article 1(3) says a driver is not considered posted when performing bilateral transport operations in respect of goods — movement, under a transport contract, from the state of establishment to another state or third country, or back again. Article 1(4) does the same for bilateral passenger work, Article 1(5) for transit without loading, unloading, picking up or setting down, and Article 1(6) for a combined transport road leg that is itself bilateral.

Article 1(7) is the one that matters here: a driver performing cabotage operations as defined in Regulations (EC) No 1072/2009 and (EC) No 1073/2009 shall be considered to be posted under Directive 96/71/EC. Article 1(7) sets no threshold and no minimum duration of its own.

Recital 13 explains the third row: where a driver performs other types of operations, notably cabotage or non-bilateral international transport operations, the Directive treats the link with the host state as sufficient. Article 1(3) does allow a narrow tolerance during a bilateral run — one activity of loading and/or unloading in the Member States or third countries the driver crosses, provided the driver does not load goods and unload them in the same Member State, and a maximum of two where a bilateral operation from the state of establishment with no additional activity is followed by one back to it. Member States apply that tolerance from 2 February 2022, the date from which drivers must record border-crossing data manually under Article 34(7) of Regulation (EU) No 165/2014, and its fifth subparagraph then ties it to equipment. That condition has already fallen due. The fifth subparagraph keeps the tolerance open to all only until smart tachographs recording border crossings must be fitted to vehicles registered for the first time under the fourth subparagraph of Article 8(1) of Regulation (EU) No 165/2014 — more than two years after the entry into force of the detailed provisions adopted under the second paragraph of Article 11. The Commission’s tachograph Q&A puts that date at 21 August 2023: all vehicles registered for the first time from then must carry the new version of the smart tachograph, defined by Commission Implementing Regulation (EU) 2021/1228, which by its own Article 2 applies from the same day. Since that date the tolerance has applied solely to drivers using vehicles fitted with smart tachographs as provided for in Articles 8, 9 and 10 of that Regulation. A driver whose vehicle is not so fitted no longer has it, and the additional loading or unloading falls outside the exemption.

What posting brings is set by Article 3(1) of Directive 96/71/EC: maximum work periods and minimum rest periods, minimum paid annual leave, remuneration including overtime rates, and the other listed matters, on the basis of equality of treatment. The concept of remuneration is determined by the national law and/or practice of the host state, and covers all the constituent elements rendered mandatory there by law, regulation or administrative provision, or by collective agreements or arbitration awards declared universally applicable or otherwise applying under Article 3(8). The same Article leaves Member States options: under Article 3(3) they “may”, after consulting employers and labour, decide not to apply the remuneration point where the posting “does not exceed one month”, and under Article 3(5) they “may provide for exemptions” from the leave and remuneration points where “the amount of work to be done is not significant”. Article 1(8) of Directive (EU) 2020/1057 deals with the long-term threshold: for the purpose of Article 3(1a) of Directive 96/71/EC, a posting ends when the driver leaves the host state in the performance of international carriage, and is not cumulated with previous periods of posting in such operations by the same driver or by a driver he or she replaces — so successive trips do not add up to the 12 months after which Article 3(1a) applies further terms, a period a motivated notification extends to 18 months.

The declaration, and who else gets fined

Article 1(11) lists the only administrative requirements and control measures a Member State may impose. A posting declaration goes to the host state through the public interface connected to the Internal Market Information System, at the latest at the commencement of the posting, carrying seven items — among them the driver’s identity, address and licence number, the start date and applicable law of the employment contract, and whether the work is goods or passengers, international carriage or cabotage. The driver keeps a copy of it, evidence of the operations in the host state, and the tachograph records with country symbols. After the posting, and only at the direct request of the authorities of the Member State where it took place, the operator sends copies of the evidence and tachograph records, with documentation on the driver’s remuneration, the employment contract, time-sheets and proof of payments, through the same interface — no later than eight weeks from the date of that request, not from the end of the posting. If the operator fails to submit them within that time, the host state may request the assistance of the state of establishment, whose authorities must provide the documentation within 25 working days from the day of the request.

Neither instrument stops at the haulier. Article 14a of Regulation (EC) No 1072/2009 and Article 5(1) of Directive (EU) 2020/1057 both require Member States to lay down sanctions against consignors, freight forwarders, contractors and sub-contractors where they knew, or, in the light of all relevant circumstances, ought to have known, that the transport services they commissioned involved infringements — of the Regulation in the one case, of the national provisions adopted under Article 1 of the Directive in the other. Under Article 13(2) of the Regulation the host state’s penalties “may, inter alia,” consist of a temporary ban on cabotage in its territory for a serious infringement, and Article 10a(3) requires Member States to undertake concerted roadside checks on cabotage at least twice per year, carried out at the same time by the authorities of two or more Member States, each in its own territory.

One provision no longer applies. The requirement that vehicles used in international carriage return to an operational centre in the state of establishment within eight weeks, inserted into Article 5(1)(b) of Regulation (EC) No 1071/2009 by Regulation (EU) 2020/1055, was annulled by the Court of Justice on 4 October 2024; the Commission states it is void and not applicable within the EU since the act was adopted on 15 July 2020. The Court’s press release records that the same judgment dismissed the actions directed against the four-day cabotage waiting period and against treating drivers on cabotage as posted.