POSTING OF DRIVERS IN MALTA REGULATIONS

SUBSIDIARY LEGISLATION 499.72

POSTING OF DRIVERS IN MALTA REGULATIONS

25th November, 2022

LEGAL NOTICE 299 of 2022, as amended by Legal Notice 189 and

230 of 2023.

The title of these regulations is the Posting of Drivers in

Malta Regulations.

(1)

The scope of these regulations is to partially

transpose 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, by establishing industry specific rules.

(2)

These regulations shall prevail notwithstanding any other

regulations established under the Posting of Workers in Malta

Regulations.

(3)

These regulations shall apply to drivers employed by

transport operators established in other Member States of the European

Union or third countries which apply the transnational measure

referred to in regulation 3(1)(a) of the Posting of Workers in Malta

Regulations.

In these regulations, unless the context otherwise

requires

"Act" means the Authority for Transport in Malta Act;

"Authority" means the Authority for Transport in Malta

as established by of article 5 of the Act;

"authorised inspecting officer" means a Police officer, a

community officer or an officer of the Authority;

"cabotage operations" means national carriage for hire or

reward carried out on a temporary basis in a host Member State;

"Commission" means the European Commission;

"competent authority in Malta" means the Department

responsible for employment and industrial relations as

established by the Employment and Industrial Relations Act;

"Directive (EU) 2020/1057" means 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

POSTING OF DRIVERS IN MALTA

transport sector and amending Directive 2006/22/EC as regards

enforcement requirements and Regulation (EU) No 1024/2012;

"Internal Market Information System" or "IMI" means

the software application developed by the Commission in

cooperation with the Member States, in order to assist Member

States with the practical implementation of information

exchange requirements laid down in Union acts by providing a

centralised communication mechanism to facilitate cross-

border exchange of information and mutual assistance, as

established in Regulation (EU) 1024/2012;

"Member State" means a Member State of the European

Union or of the European Economic Area and the European

Free Trade Area;

"posted driver" means a driver who, for a limited period,

carries out his work in the territory of a Member State other

than the State in which he normally works and shall include a

driver performing cabotage operations;

"posted worker" shall have the same meaning as that

attributed to it in the Posting of Workers in Malta Regulations;

"Regulation (EC) No 561/2006" means Regulation (EC)

No 561/2006 of the European Parliament and of the Council of

15 March 2006 on the harmonisation of certain social

legislation relating to road transport and amending Council

Regulations (EEC) No 3821/85 and (EC) No 2135/98 and

repealing Council Regulation (EEC) No 3820/85;

"Regulation (EC) No 1072/2009" means Regulation (EC)

No 1072/2009 of the European Parliament and of the Council of

21 October 2009 on common rules for access to the

international road haulage market;

"Regulation (EC) No 1073/2009" means Regulation (EC)

No 1073/2009 of the European Parliament and of the Council of

21 October 2009 on common rules for access to the

international market for coach and bus services, and amending

Regulation (EC) No 561/2006;

"Regulation (EU) No 1024/2012" means Regulation

(EU) No 1024/2012 of the European Parliament and of the

Council of 25 October 2012 on administrative cooperation

through the Internal Market Information System and repealing

Commission Decision 2008/49/EC (the IMI Regulation);

"Regulation (EU) No 165/2014" means Regulation (EU)

No 165/2014 of the European Parliament and of the Council of

4 February 2014 on tachographs in road transport, repealing

Council Regulation (EEC) No 3821/85 on recording equipment

in road transport and amending Regulation (EC) No 561/2006

of the European Parliament and of the Council on the

harmonisation of certain social legislation relating to road

transport;

"remuneration" means all the constituent elements of

remuneration rendered mandatory by the Employment and

Industrial Relations Act, orders or regulations made thereunder;

"sending party" means a transport operator which is

established in a different Member State other than Malta;

"transport operator" means a person, whether natural or

legal, who is authorised by the competent authority in another

Member State to carry out passenger transport services and, or

carriage of goods by road, as the case may be, and shall include

self-employed drivers.

(2)

Subject to the provisions of sub-regulation (1), terms and

expressions used in these regulations shall, unless the context

otherwise requires, have the same meaning assigned to them in the Act

or in the Employment and Industrial Relations Act or any regulations

made thereunder.

These regulations shall apply to the extent that the

sending parties referred to in the preceding regulation send posted

drivers in Malta on their account and under their direction, under a

contract concluded between the sending party and the party for whom

the services are intended, provided that there is an employment

relationship between the sending party and the driver during the period

of posting

Provided that such a posting shall be considered to be

ending when the driver leaves Malta in the performance of the

international carriage of goods or passengers. The period of posting

shall not be cumulated with previous periods of posting in the context

of such international operations performed by the same driver or by

another replacing driver.

(1)

A driver shall not be considered to be a posted

worker for the purpose of these regulations and for the purpose of the

Posting of Workers in Malta Regulations when performing bilateral

transport operations in respect of goods

Provided that for the purpose of these regulations, a

bilateral transport operation in respect of goods means the movement

of goods, based on a transport contract, from the Member State of

establishment, to another Member State or to a third country, or from

another Member State or a third country to the Member State of

establishment.

(2)

Drivers performing bilateral transport operations in

respect of goods shall be further exempted where the driver performs

one activity of loading and, or unloading in the Member States or third

countries that the driver crosses, provided that the driver does not load

goods and unload them in the same Member State.

(3)

Where a bilateral transport operation starting from the

Member State of establishment during which no additional activity

was performed is followed by a bilateral transport operation to the

Member State of establishment, the exemption for additional activities

set out in the preceding sub-regulation shall apply to a maximum of

two additional activities of loading and, or unloading, under the same

conditions set out in the preceding sub-regulation.

(4)

The exemptions set out in the sub-regulations (2) and (3)

shall apply only until the 19th of August 2024. After the 19th of

August 2024, the exemptions for additional activities set out in the

sub-regulations (2) and (3), shall apply solely to drivers using vehicles

fitted with smart tachographs, as stipulated in the Motor Vehicles

(Weights, Dimensions and Equipment) Regulations.

(1)

A driver shall not be considered to be a posted

worker for the purpose of these regulations and of the Posting of

Workers in Malta Regulations, when performing bilateral transport

operations in respect of passengers

Provided that for the purpose of these regulations, a

bilateral transport operation in international occasional or regular

carriage of passengers means when a driver performs any of the

following operations

(a)

picks up passengers in the Member State of

establishment and sets them down in another Member State or a

third country;

(b)

picks up passengers in a Member State or a third

country and sets them down in the Member State of

establishment; or

(c)

picks up and sets down passengers in the Member

State of establishment for the purpose of carrying out local

excursions in another Member State or a third country, in

accordance with Regulation (EC) No 1073/2009.

(2)

Bilateral transport operations in respect of passengers

shall be further exempted where in addition to performing a bilateral

transport operation, the driver picks up passengers once and, or sets

down passengers once in Member States or third countries that the

driver crosses, provided that the driver does not offer passenger

transport services between two locations within the Member State

crossed. The same shall apply to the return journey.

(3)

The exemption in the preceding sub-regulation shall

apply only until the 19th of August 2024. After the 19th of August

2024, the exemption shall apply solely to drivers using vehicles fitted

with smart tachographs, as stipulated in the Motor Vehicles (Weights,

Dimensions and Equipment) Regulations.

A driver shall further not be considered to be a posted

worker for the purpose of these regulations and the Posting of Workers

in Malta Regulations when

(a)

the driver transits through the territory of Malta

without loading or unloading freight and without picking up or

setting down passengers;

(b)

performing the initial or final road leg of a

combined transport operation, if the road leg on its own consists

of a bilateral transport operation.

(1)

Notwithstanding any additional administrative

requirements and control measures stipulated under the Posting of

Workers in Malta Regulations it shall be the duty of the transport

operator posting the driver to Malta to notify the competent authority

in Malta of the intention to post a driver to Malta prior to the date of

posting of the driver, at the latest at the commencement of the posting,

using a multilingual standard form of the public interface connected to

the Internal Market Information System (IMI), which notification shall

contain the relevant information necessary in order to allow factual

controls at the workplace and be saved in the IMI repository for a

period of twenty four (24) months. This notification shall include

(a)

the identity of the transport operator, at least in the

form of the number of the Community licence

where this number is available;

(b)

the contact details of a transport manager or other

contact person in the Member State of

establishment to liaise with the competent authority

in Malta and to send out and receive documents or

notices;

(c)

the identity, the address of the residence and the

number of the driving licence of the driver;

(d)

the start date of the driver’s contract

of

employment, and the law applicable to it;

(e)

the envisaged start and end date of the posting;

(f)

the number plates of the motor vehicles;

(g)

whether the transport services performed are

carriage of goods, carriage of passengers,

international carriage or cabotage operations.

(2) It shall be the duty of the transport operator to keep the

posting declarations referred to in the preceding sub-regulation up to

date in the public interface connected to IMI.

(3) It shall be the duty of the transport operator posting the

driver to Malta to ensure that the driver has at his disposal in paper or

electronic form and it shall be the duty of the driver to keep and make

available when so requested at the roadside or quayside

(a)

a copy of the posting declaration submitted by

means of IMI;

(b)

evidence of the transport operations taking place

in Malta, such as an electronic consignment note (e-CMR) or

evidence referred to in Article 8(3) of Regulation (EC) No

1072/2009;

(c)

the tachograph records and in particular the

country symbols of the Member State in which the driver was

present when carrying out international road transport

operations or cabotage operations, in accordance with

registration and record-keeping requirements under Regulations

(EC) No 561/2006 and (EU) No 165/2014.

(4)

The competent authority in Malta, the Authority and, or

any authorised inspecting officer, may request for a posted driver to

make available, during a roadside or quayside check, in paper or

electronic form, the evidence of the relevant international carriages,

such as an electronic consignment note (e-CMR) or evidence referred

to in Article 8(3) of Regulation (EC) No 1072/2009, and tachograph

records, for the purpose of ascertaining if the driver is a posted driver

under these regulations

Provided that it shall be the responsibility of the

competent authority in Malta, assisted by the Authority and any

authorised inspecting officer, to determine if the driver is a driver

under these regulations

Provided further that the competent authority in Malta

and any authorised inspecting officer shall avoid undue delay in the

implementation of control measures which may affect the duration and

dates of posting, and shall do so through compliance with the Standard

Operation Procedure for Road-Side Enforcement of Transport

Operations Involving Cross-Border Operations published by the

Authority from time to time.

(5)

It shall be the duty of the transport operator posting the

driver to Malta to send, by means of the public interface connected to

the Internal Market Information System (IMI), after the period of

posting, at the direct request of the competent authority in Malta,

copies of documents referred to in paragraphs (b) and (c) of sub-

regulation (3), and documentation relating to the remuneration of the

driver in respect of the period of posting, the employment contract or

an equivalent document, time-sheets relating to the driver’s work, and

proof of payments

Provided that the transport operator shall send the

documentation by means of the public interface connected to IMI no

later than eight (8) weeks from the date of the request. If the transport

operator fails to submit the requested documentation within that time

period, the competent authority in Malta may request, by means of

IMI, the assistance of the competent authorities of the Member State of

establishment, in accordance with regulation 7 of the Posting of

Workers in Malta Regulations. When such a request for mutual

assistance is made, the competent authorities of the Member State of

establishment of the transport operator shall have access to the posting

declaration and other relevant information submitted by the transport

operator by means of the public interface connected to IMI

Provided further that the competent authorities of the

Member State of establishment shall ensure that they provide the

requested documentation to the competent authority in Malta by means

of IMI within twenty-five (25) working days from the day of the

request for mutual assistance.

(1)

The competent authority in Malta shall cooperate

with the Authority in providing education and training to any

authorised inspecting officer, by building on existing enforcement

schemes.

(2)

The sending party shall be responsible for ensuring that

his drivers acquire knowledge of their rights and obligations in

accordance with these regulations.

The competent authority in Malta shall ensure that terms

and conditions of employment applicable to the posting of drivers are

made available in an accessible and transparent way to transport

operators from other Member States and to posted drivers in Malta.

(1)

The competent authority in Malta shall be

responsible for the enforcement of these regulations and shall be

assisted by the Authority and any authorised inspecting officer.

(2)

Any person or transport operator who fails to comply

with or contravenes any of the provisions contained in these

regulations, shall be guilty of an offence under these regulations and

shall be liable to the enforcement procedures and penalties laid down

in the Posting of Workers in Malta Regulations.

(3)

Any consignor, freight forwarder or passenger transport

operator, contractor or sub-contractor who knew, or who ought to have

known, that the transport services commissioned by such consignor,

freight forwarder, passenger transport operator, contractor or sub-

contractor involved infringements of one of the provisions contained in

these regulations, or who fails to comply with any of the provisions

contained in these regulations, shall be guilty of an offence under these

regulations and shall be liable to the enforcement procedures and

penalties laid down in the Posting of Workers in Malta Regulations.