Compliance with the minimum wage in the matter of posting – EU jurisprudence

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CJEU, 8 July 2021, aff. C-428/19, Rapidsped :

In a preliminary ruling on July 8, 2021 relating to Hungarian drivers performing their work in France, the European Court of Justice, questioned by a Hungarian administrative and Labour Court, ruled on the topic of compliance with the minimum wage in the matter of posting.

In this case, the posted workers were drivers carrying out their work by travelling to France. Those drivers crossed borders on several occasions.

While drivers were supposed to be paid EUR 10.40 per hour during posting time, (which is above the collective agreement governing the minimum wage applicable in France of EUR 9.76), they actually received only 3.24 euros per hour. The employer claimed that the difference (6.52 euros per hour) was covered by the amount of daily allowances received by the drivers to cover the costs associated with the secondment and by the fuel-saving bonus which was paid to them on a discretionary basis according to the money saved.

The issue at stake before the Court was whether or not the payment of certain allowances to the drivers could be taken into account in the calculation of the minimum wage.

First of all, the Court of Justice recalls that posted workers, regardless of the law applicable to their employment relationship, have the right to invoke the provisions of the host Member State relating to working and employment conditions, in particular, minimum wage rates, before the court of their employer's domicile, or to bring such an action before the competent courts of the Member State to which they are or were posted:

“a breach, by an employer established in one Member State, of another Member State’s provisions concerning minimum wage, may be relied on against that employer by workers posted from the first Member State, before a court of that State, if that court has jurisdiction.”

Concerning the allowance paid to cover the expenses incurred by the drivers, the Court emphasises a distinction that must be made:

• If it turns out that it is a proportional indemnity linked to the duration of the secondment to compensate for the inconveniences of the latter, it could be taken into account, in addition to the salary received, to verify that the French minimum wage is paid.
• If the national court considers that this allowance is paid as a reimbursement of expenditure actually incurred as a result of the secondment, then it will not be taken into account for the calculation of the minimum wage.

The judgment also clarifies the rules on fuel savings bonus applicable to transportation companies. While article 10 of Regulation 561/2006 prohibits transportation companies from paying drivers bonuses linked to the distance travelled and/or the volume of goods transported, which are "likely to compromise road safety and/or encourage infringements of this regulation”, the Court stated that "such a bonus would violate the prohibition established in this provision if, instead of being linked solely to fuel economy, it rewarded such economy according to the distance travelled and/or the volume of goods  to be transported in a way that encourages the driver to behave in such a manner as to  endanger road safety  or to commit infringements of Regulation 561/2006".

Please note that since the 30th of July 2020 the new European Directive 2018/957 modified the minimum wage obligation: posted workers must benefit from a remuneration equal to that of local employees and not only the minimum wages.

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