Delegation of drivers from third countries – new regulations, questionable enforcement

In August 2023, regulations on the posting of drivers in road transport came into force, aimed at aligning the standards of the Polish transport market with EU conditions through the implementation of the European Parliament and Council Directive (EU) 2020/1057 of 15 July 2020. Although these regulations were intended to strengthen control over carriers from third countries, the reality looks different. Carriers from outside the EU, except Switzerland, are obliged under the introduced regulations to notify the National Labour Inspectorate of the posting of drivers on Polish territory. A year after their introduction, the question remains: do the regulations actually work, or are they merely a façade that changes little?

Notification to the National Labour Inspectorate – a formality or real control?

Road carriers from third countries posting their drivers to Poland must meet a number of requirements to ensure their operations comply with Polish law. The introduced regulations provide, among other things, for the necessity to equip the driver with appropriate documents confirming their posting. Each time before a road transport operation within Polish territory, the carrier must issue a posting confirmation for the driver. This document is prepared on a form specified in the Regulation of the Minister of Infrastructure of 7 August 2023. During transport operations on Polish territory, a driver posted from a third country must have the following in the vehicle:
1. A paper posting confirmation, compliant with the current template.
2. Evidence confirming the performed road transports, such as consignment notes, appropriate international transport permits, or driving forms.
3. Tachograph records compliant with the AETR Agreement (European Agreement concerning the Work of Crews of Vehicles engaged in International Road Transport).
The driver is obliged to present these documents upon request to inspectors of the Road Transport Inspection during roadside checks.

Blind control – lack of key tools

Doubts arise primarily regarding Article 23 of the aforementioned Act, which defines the scope of road control over the posting of drivers from third countries on Polish territory by inspectors of the Road Transport Inspection. In theory, this control covers verification of the data contained in the documents presented by the driver as described above; however, in practice, inspectors can only verify whether the driver possesses all the required documents, not whether they are genuine. It can thus be stated that under current regulations, the control of posted drivers from third countries on Polish territory is incomplete. It would suffice for the legislator to grant inspectors of the Road Transport Inspection access to the information provided to the National Labour Inspectorate, as is the case with member state controls using the Internal Market Information System (IMI) in the “Transport” module – yet this requires a legal amendment.

Necessary legal change

Current regulations require amendment to enable inspectors of the Road Transport Inspection to carry out effective controls. Although the Ministry of Infrastructure is said to be aware of the problem, changes to the regulations will not happen overnight. Implementing a new IT system that would allow effective control involves costs and the need for detailed analysis. And as is well known, when costs and EU regulations are involved, rapid changes cannot be expected.

Summary

The current regulations concerning the posting of drivers contain significant gaps that cast doubt on the effectiveness of controls. The regulations leave much to be desired. Without the possibility for inspectors of the Road Transport Inspection to verify notifications, it is impossible to conduct a reliable control over carriers from third countries. For now, the system requires decisive reforms so that it ceases to be merely a formality and begins to genuinely function in protecting the transport market.