On 16 June 2016, the European Commission decided to take legal actions against France and Germany, on the grounds that their respective minimum wage legislations, applicable to the road transport sector, are likely to breach EU law.

In 2015, France adopted a law on the application of the French minimum wage to the transport sector, according to which the minimum wage applies to cabotage and all international transport operations (excluding transit). The implementing act (décret), adopted on 7 April 2016, laid down strict administrative and enforcement requirements, including the obligation to establish a representative in France, responsible for keeping the working records and pay-slips of the posted worker for the purpose of controls, for a period of 18 months after the last posting situation. Following an exchange of information with the French authorities and a thorough legal analysis of the French legislation, the Commission sent a letter of formal notice to France, which constitutes the first step of the infringement procedure.

In Germany, the Minimum Wage Act, which came into force on 1 January 2015, also applies to undertakings established outside the country providing services in Germany. Pursuant to such Act, companies outside Germany in certain sectors, including transport, are obliged to inform the German customs authorities via specific forms. Any violation of these notification requirements is punishable by a fine of up to € 30,000. The Commission has therefore sent a supplementary letter of formal notice to the German authorities. This decision follows the launch of an infringement procedure in May 2015, and the subsequent extensive talks with the German authorities in order to reach an amicable solution. However, neither the response of the German authorities to the letter of formal notice, nor the subsequent discussions have dispelled the Commission’s main concerns.

In both cases, the Commission considers that the application of the minimum wage to certain international transport operations, having only a marginal connection with the territory of the host Member State, cannot be justified, as it creates disproportionate administrative obstacles to the proper functioning of the internal market. The Commission also believes that more proportionate measures need to be taken in order to ensure the social protection of workers, and to avoid distortions of competition, without affecting the free movement of goods and services.