Draft law No. 7901, which was submitted to the Luxembourg Parliament (Chambre des Députés) on 18 October 2021, was intended, on the one hand, to transpose Directive (EU) 2020/1057, which lays down specific rules on the posting of drivers in the road transport sector and, on the other hand, to adapt certain general provisions of the Labour Code relating to posting.
Following its exemption from the second constitutional vote, the law of 23 December 2022 (the “Law”) was adopted and entered into force on 27 December 2022.
New specific provisions in the road transport sector
The Law provides that the road transport company referred to in the Law, established outside Luxembourg and temporarily posting drivers, are among others, subject to the following obligations:
- At the latest, as soon as the posting on Luxembourg territory begins, the road transport company must submit a posting declaration via a standard multilingual form of the public interface, connected to the internal market information system "IMI" by filling in the information agreed in the Law.
- The company must ensure that the mobile employee has at his disposal, on paper or in electronic form, a copy of the posting declaration submitted via IMI, proof of transport operations taking place on national territory, such as an electronic consignment note (“eCMR”) and tachograph records, and in particular the country symbols of the Member States where the mobile employee has been present when carrying out international road transport operations or cabotage transport. The mobile employee is obliged to keep these documents and to transmit them on request, in the event of a roadside check.
- In case of an express request from the Labour and Mines Inspectorate (“ITM”), the company must send, after the period of posting and at the latest eight weeks after the request, via the "IMI" interface, a copy of the proof of the transport operations taking place in Luxembourg, the tachograph records, the documents relating to the remuneration of the mobile employee for the period of posting, the employment contract or any equivalent document within the meaning of Article 3 of Directive 91/533/EEC of 14 October 1991 on the obligation of employers to inform workers of the conditions applicable to the contract or employment relationship, the time sheets relating to the work of the mobile employee and proof of payment of these hours.
As an important and timely clarification, Article L.145-2 of the Labour Code further specifies that bilateral transport operations of goods or passengers, transit operations, additional activities of a bilateral transport operation and combined transport operations would not qualify as posting.
Amendment of certain general rules on posting
As far as the general rules are concerned, the Law simplifies the posting formalities by providing for inter alia:
- a reduction in the list of information to be sent to the ITM, at the latest, as soon as the work begins on Luxembourg territory, without prejudice to the possibility of an earlier declaration decided by the posting company (Article L.142-2 of the Labour Code) (e.g., the "identification data" information is deleted and replaced by the sole information of the identity, address, as well as electronic and telephone contact details of the posting employer, of the legal or natural person, freely and clearly determined by the posting company, and of the direct subcontracting company. The address on Luxembourg territory where the documents are kept must now also be communicated to the ITM).
- a reduction in the list of documents requested by the ITM. The concerned company must keep these documents for the duration of the posting, at the workplace of the posted employee on Luxembourg territory or in any place accessible to the reference person for communication with the ITM (Article L.142-3 of the Labour Code).
- the joint and several liability (provided for in Article L.281-1 of the Labour Code) which applied in the context of a company or subcontracting contract is now limited to the situation of subcontracting chains.
Finally, certain provisions have also been modified concerning the accommodation conditions of posted employees and new sanctions have been added to reinforce the protection of the latter. In particular, it is provided that failure to comply with health, hygiene, safety and habitability criteria for accommodation is now punishable by a criminal fine of between EUR 251 and EUR 125.000 and imprisonment for between eight days and five years, or one of these penalties only.
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