Mobility Package – important changes for carriers

In February 2022, new amendments to the Act on road transport and drivers’ working time came into force. They implement the EU Mobility Package into Polish law. The carriers providing international transport have faced the necessity to adapt to numerous regulations transforming the freight services market.

Mobility Package – a revolution in the transport industry

The Mobility Package should be understood as a set of European legal acts regulating international road transport. In particular, it refers to legal acts introduced within the European Union, such as:

• Regulation (EU) 2020/1055 of the European Parliament and of the Council of 15 July 2020 amending Regulations (EC) No 1071/2009, (EC) No 1072/2009 and (EU) No 1024/2012 to adapt them to changes in road transport,
• Regulation (EU) 2020/1054 of the European Parliament and of the Council of 15 July 2020 amending Regulation (EC) No 561/2006 regarding minimum requirements for maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods and amending Regulation (EU) No 165/2014 regarding the location determination with tachographs,
• Directive of the European Parliament and of the Council (EU) of 31 May 2017 amending Directive 2006/22/EC with regard to enforcement requirements and laying down detailed rules in respect of Directive 96/71/EC and Directive 2014/67/EU concerning the posting of drivers in the sector of road transport.

The above-mentioned legal acts providing for changes in the rules of conducting business activity in the transportation sector are gradually being introduced into the legal systems of the European Union Member States. In Poland, the Mobility Package is implemented into national legislation primarily via amendments to the Act of 6 September 2001 on road transport and the Act of 16 April 2004 on drivers’ working time.

The Mobility Package has raised many objections and concerns since its adoption. Member States such as Poland, Lithuania and Romania, leaders in the TSL industry, questioned in particular the requirement to pay drivers the minimum pay set in the countries in which the transport operations are carried out. Here, you will find a brief summary of the most important changes.

Changes effective as from 20 August 2020 – drivers’ working time

The provisions of the Mobility Package regarding drivers’ rest and working time came into force on 20 August 2020. The changes introduced cover:

• the obligation to provide drivers with the opportunity to return to their place of residence or company base for at least 45 hours once every four weeks (with reduced weekly rests such a return must take place once every three weeks),
• the obligation to take regular weekly rest periods away from the cab of a vehicle,
• the option of extending the driving time to a maximum of 2 hours when returning to base (provided that this exception is documented and the reason given).

Changes effective as from 2 February 2022 – revisions to driver remuneration rules

On 2 February 2022, a number of crucial changes for Polish carriers came into force. These changes affect the way in which drivers carrying out international transport are remunerated.

According to these changes, Polish transport companies providing international transport services will be obliged to pay drivers the minimum pay that is set in the country in which the drivers will perform their work.

The requirement to pay drivers a minimum amount of pay according to the rates in force in the country in which the work is performed does not apply to all international transport operations, but only to the specific types of transport:

• cross – trade (transports, for which the transport company providing the transport service has neither its registered office in the country of the sender of goods nor in the country of the recipient of the goods. For example, cross – trade transport will take place when a transport company with its registered office in Poland will provide a transport service of goods produced in Denmark and delivered to France),
• cabotage transport operations (operations carried out within a given country by a transport company with a registered office in another country. For example, if goods are transported from Munich to Berlin by a transport company based in Poland).

As a result of the Mobility Package’s requirement to pay the minimum salary set in the countries in which the drivers perform their work, the Polish legislator for a long time considered various options of adjusting Polish law to this.

The final solution adopted consisted in repealing the provisions which treated drivers’ abroad trips as business trips. As a result, starting from 2 February 2022, drivers performing international transport will no longer be on business trips, they will also not be entitled to business travel allowances in the form of tax-free and not subject to contributions (not subject to ZUS) per diems and lump sums for overnight stays.

The necessity to tax and make contributions to the social security system in respect of that part of remuneration which has so far been paid to drivers in the form of daily allowances and lump-sums for overnights will result in a significant increase in costs for transport companies, since in the overwhelming majority of Polish transport companies, daily allowances and lump-sums (paid as remuneration “in hand”) constituted more than half of the remuneration paid to drivers (sometimes as much as 75% of the remuneration).

The decision of the Polish legislator to impose taxes and contributions on the part of remuneration paid as allowances and lump-sums resulted primarily from the fact that according to the legislation of many European countries these untaxed and not subject to contributions allowances for business trips are not included in the minimum remuneration. Therefore, without changes adapting the Polish law to the requirements of the Mobility Package, there could come to a situation in which drivers would be entitled to high allowances and lump-sums for business trips, and at the same time Polish transport companies would have to raise their basic salaries to a level guaranteeing the achievement of the minimum salary ceiling in particular European Union countries. Such a solution would generate much higher costs for employers than the one eventually introduced into the Polish legal system. 

It is also worth mentioning that the first amendment adjusting Polish legislation to the requirements of the Mobility Package in terms of ensuring a minimum salary for drivers posted to work abroad (adopted by the Sejm on 14 October 2021) met with much criticism from the transport industry representatives. This is because the amendment assumed that the entire remuneration of drivers posted to work abroad in international transport was to be taxed and subject to contributions. The Polish legislator, taking into account the critique to the original amendment on 26 January 2022, decided to adopt further modifications in this respect by adopting an amendment to the Act on road transport, drivers’ working time and certain other acts (the amendment adopted by the Sejm on 26 January 2022 was signed by the President on 27 January 2022 and published the following day in the Journal of Laws).

The above-mentioned amendment introduced the option to benefit from reliefs when calculating the tax and contribution bases for drivers’ remuneration similar to those used when calculating the remuneration of posted workers.

In particular, as a result of the amendment passed by the Sejm on 26 January 2022, with effect as from 2 February 2022, the Article 21b was introduced into the Act of 16 April 2004 on drivers’ working time, under which:

1. A driver fulfilling business tasks in international road transport is not on a business trip within the meaning of Article 775 § 1 of the Act of 26 June 1974 – Labour Code;
2. For the driver, under paragraph 1, for the purpose of determining the basis for calculations, the following shall apply:

• for personal income tax – provisions concerning persons employed in Poland and temporarily staying abroad, referred to in art. 21 section 1 item 20 of the Act of 26 July 1991 on Personal Income Tax (Journal of Laws of 2021, item 1128, as amended);
• for pension and disability insurance contributions – regulations issued under Article 21 of the Act of 13 October 1998 on the social insurance system (Journal of Laws of 2021, item 423, as amended) concerning employees who work abroad but employed by Polish employers.

In the justification for introducing the Act of 26 January 2022 amending the Act on road transport, the Act on drivers’ working time and certain other acts, it was indicated that “the proposal contained in Article 21b(2) equalizes the situation of international transport drivers with other Polish employees performing their work abroad who today can, completely legally and properly, benefit from limitations on the amount of social security contributions.[…] Without the amendment in question, the drivers and their employers would de facto be in a worse situation than other Polish employees and entrepreneurs providing services abroad to whom the provisions of § 2(1)(16) of the Regulation of the Minister for Labour and Social Policy on the detailed rules for determining the basis for calculating the amount of contributions for pension and disability insurance apply.”

There are other important changes effective as from 2 February 2022. Worth mentioning is the necessity to make notifications regarding the posting of drivers to work abroad through the IMI system or the necessity to keep detailed records of working time (in accordance with the amended Article 25 of the Act on drivers’ working time).

Changes effective as from 21 February 2022 – obligation to return to base

On 21 February 2022, the following was introduced:

• obligation for vehicles making international deliveries to return to base in the country in which the carrier is based once every eight weeks,
• obligation to ensure that at least 1/3 of the car fleet has parking spaces at bases,
• ban on carrying out more than three cabotage operations within seven days and, at the same time, an obligation to take a break of four days after completion of the previous cabotage operation.

One of the changes described above is particularly controversial. It is the requirement for vehicles to return to bases once every eight weeks. In practice, if the carriers will not be able to obtain relevant orders for transport of goods to the place of pick-up located in the vicinity of the carrier’s base, the vehicles will return empty only to comply with the new legal obligations. This is both economically unjustified and environmentally harmful as it may result in an unnecessary increase in CO2 emissions into the atmosphere. Taking into account the abovementioned concerns, the requirement to return to the bases has been the subject of complaints made by Member States to the European Court of Justice. Unfortunately, there has still been no ruling in this regard, and not even a date for considering the complaints has been specified.

Changes over the coming years – what can companies expect?

It is important to note that the key recent changes described in this publication regarding the implementation of the Mobility Package are not the only ones. Further changes will be introduced between 2022 and 2026 (for example, over the next few months the Mobility Package will cover vehicles from 2.5 tonnes upwards).

Author:

Michał Frąckowiak
Lawyer
TGC Corporate Lawyers

How can we help?

As a member of the Advartis Group we offer comprehensive advisory services to our clients from the transport industry aimed at helping them implement the changes introduced to the Polish legal system under the Mobility Package. Our Group’ s distinguishing feature is the capacity to provide under one advisory firm services for companies from the transport industry including legal, HR, payroll and tax advisory. We do this as we employ over 500 specialists with expertise in various areas crucial to businesses in Poland. Since we are a member of the international Crowe network, we are also able to support Polish companies with operations in other EU countries through affiliates or branches. 

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