The employer of an international lorry driver, within the meaning of European Union law, is the undertaking which has effective authority over that driver, bears the corresponding wage burden and has effective power to dismiss him, the European Court of Justice ruled in a judgment delivered on Thursday 16 July (Case C-610/18).
The Cyprus-based company AFMB has concluded agreements with Dutch transport companies and employment contracts with international lorry drivers residing in the Netherlands. It makes drivers available to Dutch companies, pays their wages and pays social security contributions to the Cypriot authority. The case concerns the identification of the employer of the drivers, i.e. the Cypriot company or the Dutch transport companies, and ultimately the applicable social security legislation.
Taking up the reasoning of the Advocate General (see EUROPE 12377/19), the Court considers that the Netherlands legislation applies by virtue of the regulations (1408/71) on social security cover for workers moving within the EU and (883/2004) on the coordination of social security systems.
The Court notes first of all that the relationship between an “employer” and its “staff” implies the existence of a subordinate relationship between them. In its view, the conclusion of a contract of employment may be an indicator of the existence of a relationship of subordination, but that circumstance alone does not make it possible to conclude that such a relationship exists. The entity exercising effective authority over the worker, on which the corresponding wage burden falls and which has effective power to dismiss the worker shall be identified.
According to the Court, these were the Dutch companies. Prior to the conclusion of the employment contracts with AFMB, the drivers had been chosen by these companies and, after the conclusion of the contracts, they carried out their activity on behalf of and at the risk of these companies. In addition, the actual burden of their salaries was borne, through the commission paid to the Cypriot company, by the transport companies. Finally, the transport undertakings appeared to have effective power to dismiss and some of the drivers were, prior to the conclusion of the employment contracts with AFMB, already employees of those undertakings.
Finally, according to the Court, an interpretation based solely on formal considerations, such as the conclusion of a contract of employment, would, in the Court's view, run the risk of undermining the aims of the two regulations by facilitating the use of artificial arrangements for the sole purpose of taking advantage of the differences between the national systems.
See the judgment: https://bit.ly/3jaJyea (Original version in French by Mathieu Bion)