On Friday, October 14, 2022, the Supreme Court of theNetherlands ruled in the case between Van den Bosch (and affiliated companies) against FNV Bondgenoten. Amoung other things, the case concerns the question of whether the Posting of Workers Directive applies to international transport operations, and if so, when, in light of this directive posting does or does not occur. This is not an easy question toanswer, not for lawyers, but certainly not for transport companies and employees. It is therefore no coincidence that this case between Van den Bosch and FNV has been litigated for nine years, all the way to the Supreme Court and the European Court of Justice.

In November 2013, FNV initiated proceedings against the Hungarian, German, and Dutch companies of Van den Bosch Transporten. In those proceedings, FNV took the position that Van den Bosch was not properly complying with the charter provision of the Dutch collective labour agreement. This charter provision stipulates that a Dutch transport company with foreign charters (subcontractors) must agree that theiremployees will be paid a number of basic employment conditions from the Dutch collective labor agreenment “in so far as this follows from the Posting of Workers Direcctive”. In accordance with this collective labour agreement article, it must first be determined whether the Posting of Workers Directive applies to the employee(s) in question who are being posted. If this is thecase, the Dutch transport company has a contracting and information obligation towards the charter and its employees.

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“On the territory”

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The Posting of Workers Directive determines that if an employee from one Member State is posted “on the territory” of another Member State, that employee isentitled to a number of basic employment conditions of that country. The central question in these proceedings is therefore what is meant by the term “onthe territory” of a Member State. After all, in the international transportsector, work is not carried out on the territory of a single Member State, buton the territory of (many) different Member States.

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First ruling Van den Bosch vs. FNV in 2015

In January 2015, the first ruling in this case was between Van den Bosch and FNV was handed down by the subdistrict court in Den Bosch was handed down by the subdistrict court in Den Bosch. Van den Bosch argued that the Posting of Workers Directive would only apply if a foreign driver performed a specific assignment “exclusively or primarily on the territoryof the Netherlands”. Not an unreasonable argument. FNV, on the other hand, argued that the question of “where” thedrivers performed their work should not be taken so literally, but rather “fromwhere” they did so. In other words: where was the headquarters located from which those drivers performed their work during the posting period. The subdistrict court agreed with the FNV and ruled that the Posting of Workers Directive also applies when the (transport) work is performed “from” a memberstate, even if the transport itself takes place only to a limited extent on Dutch territory.

Van den Bosch argued that the Posting of Workers Directive would only apply if a foreign driver performed a specific assignment “exclusively or mainly on the territory of the Netherlands.” Not an unreasonable argument. FNV, on the otherhand, argued that the question of “where” the drivers performed their work should not be taken so literally, but rather “from where” they did so. In other words: where was the headquarters from which those drivers performed their work during the period of secondment? The subdistrict court agreed with the FNV and ruled that the Posting of Workers Directive also applies when the (transport)work is performed “from” a member state, even if only a small part of the transport itself takes place on Dutch territory.

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Appeal

Van den Bosch appealed against this ruling. Almost two and a half years later, in May 2017, the second ruling in this case followed. This time from the Court of Appeal in Den Bosch. Here, too, the same question arose as to whether – as argued by Van den Bosch – the literal text should be used to interpret the concept of posting “on the territory of a Member State” or whether this should be read as posting “on or from the territory of a Member State”, as FNV contented. The Court of Appeal took a different view from the subdistrict court andruled, in short, that the Posting of Workers Directive in this case does not concern international transport services of goods, but only national transport. According to the Court of Appeal, posting “on the territory of a Member State” must therefore be interpreted as literally on the territory of one Member State, or at least predominantly on the territory of that Member State. Van den Bosch was therefore proved right on appeal: the Posting of Workers Directivedid not apply to their working method, and based on the charter provision inthe collective labour agreement there was no contractual- informationobligation towords foreign workers.

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“The Supreme Court found merit in both positions”

The FNV then appealed this ruling tothe Supreme Court. About a year and a half later,in November 2018, the third ruling in thecase between Van den Bosch and the FNV followed. The Supreme Court found that both positions had merit. On theone hand, it was conceivable that not only the literal text of posting “on theterritory” of a Member State should be considered, but that this could also beinterpreted more broadly as posting “from or out of the territory” of a MemberState. On the other hand, the Supreme Court also considered it possible that acertain “sufficiently close connection” must exist between the employee’s workand the Member State to which the employee is posted, or that certainconditions should be met, such as a minimum number of consecutive days of workin that territory.

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Explanation needed from European Court

The Supreme Court therefore decided to ask the European Court of Justice for clarification before issuing its own ruling. How exactly should the Posting of Workers Directive be applied in the case of international transport services? This led to the fourth ruling twoyears later, in December 2020. The European Court answered the Supreme Court'squestion as follows: under the Posting of Workers Directive, an employee can only be considered posted to the territory of a Member State if the work performed by that employee has a “sufficiently close connection” with that Member State.

The extent to which those activities are related to the territory and the share this has in the international transport service as a whole are importantfactors in this regard. Relevant activities include, for example, loading,unloading, and cleaning the trucks, but only if these activities are actually carried out (in that Member State) by the employee themselves, and not by third parties. According to the European Court, the fact that the drivers received (part of) their instructions at/via the head office in the Netherlands while carrying out the transport assignments and also started and ended their journeys there is not sufficient to establish a “sufficiently closeconnection,” especially if there are other factors that point in a different direction. I wrote an article aboutthis ruling in 2020.

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“The Supreme Court only assesseswhether the Court of Appeal has correctly applied the rules of law.”

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After answering this question, the European Court referred the case back to theSupreme Court so that the Supreme Court—now almost two years later—could use this information to assess whether FNV was right to appeal against the Court ofAppeal's ruling. It is important to note that the Supreme Court does not reviewthe facts of the case, but only assesses whether the Court of Appeal has correctly applied the rules of law.

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Fifth ruling in nine years

This brings us to the Supreme Court's ruling of last Friday, October 14, 2022. Thisis the fifth ruling between Van den Bosch and FNV in this case, almost nine years after the start of the proceedings. What exactly did the ruling say? To answer that, let's look backat what the Court of Appeal in Den Bosch said in May 2017:

postingon the territory of a Member State only occurs if the work is carried out“predominantly” on the territory of that Member State. However, based on theinformation received by the Supreme Court from the European Court of Justice,this is not the correct criterion for determining whether or not there isposting “on the territory of a Member State.” It is not necessary to determinewhether the work is carried out “predominantly” in that Member State, butrather to determine, on the basis of relevant factors, whether there is a“sufficiently close link” with that Member State.

Court of Appeal must redo its homework

Does this mean that after all these years, the FNV has won and Van den Bosch has lost? No, that is not the case. Yes, the FNV wasright to apeal tot he Supreme Court because the Court of Appeal did not apply the correct standard, but for now that means that the Court of Appeal must redo its homework. The Supreme Court has therefore referred the case back tot theCourt of Appeal in Arnhem-Leeuwarden, so that all relevant facts and circumstances can be weighed up again in order to ultimately determine whether or not there is a “sufficiently close link” with the Netherlands. And as the European Court and the Supreme Court have ruled, it is not sufficient for thispurpose that the drivers receive instructions from Van den Bosch in the Netherlands. Nor is it sufficient that the drivers regularly start and endtheir journeys in Erp. On the other hand, where loading and unloading takeplace is relevant, and in that aspect I can well imagine that this will notalways be or has not always been in the Netherlands, but rather in many different European countries.

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“Legitimate chance that theCourt of Appeal will come to the same final conclusion”

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It therefore remains to be seen whether the Arnhem-Leeuwarden Court of Appeal will actually reach a different conclusion than the Den Bosch Court of Appeal on the basis of these criteria and a newassessment of the facts. There is a legitimate chance that this Court of Appeal– after assessing the grounds and facts – will still come to the same final conclusion, namely that in the case of Van den Bosch and the charters, there is no posting “on the territory” of theNetherlands. We will know in a year or two.

NB: There are even more interesting legal questions at stake in all these rulingsbetween Van den Bosch and FNV, but for this article I have limited myself tothe legal question of whether the Posting of Workers Directive applies tointernational transport.

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