The law of 23 December 2022 (hereinafter referred to as “ the law ”) modifying the Labour Code and transposing directive (EU) 2020/1057 into national law has introduced some new provisions within the context of posting employees, adding some specific new rules for the road transport sector and adapting the general rules for posting workers.
- Specific new rules for the road transport sector
The law specifies that road transport companies referred to in the law, based outside Luxembourg and temporarily posting drivers there (i.e. mobile employees within the meaning of article L. 214-2 of the Labour Code), are subject to the following measures in particular:
- The road transport company must submit a posting declaration via a standard, multilingual form on the public interface connected to the internal market information system, “ IMI , providing the information agreed in the law ( Art. L 145-4 of the Labour Code) ;
- Companies subject to the law must make sure that mobile employees have the following at their disposal, either as a hard copy or electronically: a copy of the posting declaration submitted via IMI, proof of the transport operations taking place in the country, such as an electronic consignment note (e-CMR), and the tachograph records, in particular the country symbols of the Member States in which the mobile employees were present when carrying out international road transport operations or cabotage operations. Mobile employees must keep the abovementioned documents and hand them over if asked to do so during a roadside check ( Art. L.145-5 of the Labour Code).
- If specifically requested by the Inspection du travail et des mines, after the posting period and no later than eight weeks after the request, companies subject to the law must send copies of the following documents via the IMI public interface: a copy of proof of the transport operations having taken place in Luxembourg, the tachograph records, the documents relating to the remuneration of the mobile employee during the posting, the employment contract or any equivalent document within the meaning of article 3 of Directive 91/533/EEC of the Council of 14 October 1991 on the employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship, the time-sheets relating to the mobile employee’s work, and proof of payment for these hours (Art. L.145-6 of the Labour Code).
Article L. 145-2 of the Labour Code also specifies the conditions under which the following situations would not constitute posting: bilateral freight or passenger transport operations, transit operations, additional activities of a bilateral transport operation and combined transport operations, as defined by the law.
The general rules for posting contained in the Labour Code continue to apply, according to the law, for everything that is not covered by the sector-specific provisions introduced in the Labour Code.
- Changes to the general rules
The law also modifies some general provisions of the Labour Code relating to posting workers:
- The law reduces the list of information to submit to the Inspection du travail et des mines no later than when the posting on Luxembourg territory begins, without prejudice to the possibility of a prior declaration as decided by the posting company (Art. L.142-2 of the Labour Code).
- The law also reduces the list of documents required by the Inspection du travail et des mines that can be provided as hard copies or electronically. Companies subject to the law must keep these documents for the duration of the posting at the place of work of the posted employee on Luxembourg soil, or in any location accessible to the point of contact for communication with the Inspection du travail et des mines (Art. L.142-3 of the Labour Code).
- The law limits the joint and several liability provided for in article L. 281-1 of the Labour Code only to chains of subcontractors.
The law was published in the Journal Officiel on 23 December 2022 and came into force on 27 December 2022.
 Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector and amending Directive 2006/22/EC as regards enforcement requirements and Regulation (EU) no. 1024/2012.