Dear Mr. President of the European Parliament,
On behalf of the National Union of Road Hauliers from Romania (UNTRR), employers and professional organization that promotes and protects the interests of national and international Romanian road transport operators freight and persons, we want to inform you on the abusevly provisions of the new law to regulate the minimum wage the economy in Germany (MiLoG), as it is imposed also to carriers from other Member States for any activity by their drivers in Germany.
By this regulation, Germany joins the Western countries that adopt measures against freedom of services in the EU. The German Law MiLoG took effect from 1st of January 2015, introducing a statutory minimum wage in gross value of 8.50 Euro per hour, which also applies to foreign professional drivers carrying out international transport of goods and persons to / from in transit (temporarily suspended application) or cabotage regime in Germany.
The main issues related to the application of German law MiLoG to the Romanian carriers:
– For each hour worked by a Romanian driver in Germany, the minimum wage in Germany is applied – and not the one in Romania. Penalty for failure to the minimum wage in Germany can be up to 500,000 euros!
- The aApplication of the MiLoG provisions to the Romanian drivers lead to non-compliance with Romanian law, because in Romania there is a minimum monthly salary established during a calendar month and not one hourly, as provided by the German laws. As the worked hours can vary from month to month, it is almost impossible for a Romanian carrier to calculate monthly fees to be paid to the Romanian state
- On the other hand, although the law is in force since the beginning of this year, the German Government has not so far provided clear information on the factors considered in calculating the minimum wage according to MiLoG, such as consideration of the paid per diem for Romanian professional drivers for international transport operations in Germany as part of the minimum wage as MiLoG.
- A recent judgment of the European Court of Justice (ECJ) dated 12.02.2015 regarding the settlement of a labor dispute at European level shows that the daily allowance designed to ensure social protection of detached workers from a A Member State, offsetting disadvantages caused by detachment, consisting in removing interested people from their familiar surroundings – is part of the minimum wage in Member State B which held the detachment.
- We believe that the same principle should be applied in calculating the daily allowance granted to the Romanian drivers as part of their minimum wage for international shipments made in Germany, given that in accordance with the applicable Romanian legislation, the daily allowance is an allowance nature delegation is granted according to Art. 44 par. 2 of the Labour Code in Romania, in addition to the amounts of travel and accommodation expenses and compensate for the increased cost of living outside the place of residence.
For each procedure operated by a Romanian driver in Germany, the Romanian carrier to which he is employed, shall notify in advance by a written report in German the customs authorities in Germany, otherwise fine is 30,000 euros!
- Notification must be sent only by fax to the German authorities, without any acknowledgment from them and without the possibility of using modern technologies of our century electronic communication – email and Internet. These measures increase the administrative costs, and also to restriction of Romanian transport companies’ activity in Germany.
- The long-term cooperation relationship with German partners is also affected, it increases costs particularly between Germany and Eastern Europe, new undue administrative burdens are imposed to the Romanian road transport operators, namely the obligation to keep track of registrations of a Romanian companies in a foreign language (German) and the Romanian company is required to be subject to review by the authorities of a foreign state (German Customs) – at its headquarters in Romania.
By imposing this unfair minimum wage law in Germany to the foreign hauliers, Germany sets a dangerous precedent for the European Union – imposing its national rules to the other 27 EU Member States, without the European Commission or the European Parliament!
Considering art. 90 of the Treaty on European Union as of March 25th 1957, the European transport market is regulated by European regulations. In this context the national law of Germany – MiLoG limits the provisions of the European regulations on market access and occupation of road transport, namely: Regulation (EC) no. 1071/2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator; Regulation (EC) no. 1072/2009 on the common rules for access to the international road haulage market goods; Regulation (EC). 1073/2009 on common rules for access to the international market for transport services by coach and bus
Law MiLoG infringes seriously the following European regulations:
- Article 56 of the Treaty on European Union on March 25th 1957, according to which the restrictions on freedom to provide services within the Union in respect of nationals of Member States who are established in a Member State other than that of a recipient of services are forbidden. Protectionist measures taken by Germany starting this year (MiLoG) seriously affects the freedom of services in the European market – a fundamental principle underpinning the European Union.
- Article 8 of Regulation (EC) no. 593/2008 on the law applicable to contractual obligations (Rome I), which states that the law applicable to the individual employment contract is the law of the country where the employee habitually carries out his work in performance of the contract – namely the Romanian legislation and not the German law (MiLoG) for Romanian drivers
- Article 9 of Regulation No. 1072/2009 of October 21st, 2009 on common rules for access to the international road haulage market commodity – that the rules applicable to cabotage operations do not include national law enforcement of the minimum wage in the host Member State road haulage operators resident who carries out host cabotage in the State;
- Article 1 of Directive 96/71 / EC on the detached workers – namely the drivers of buses and coaches can not be employed within the scope of this Directive because they can not be considered as detached workers, given both the temporary nature of transport operations international incur in Germany and that drivers remain employees of transport in Romania.
- Charter of Fundamental Rights of the European Union (2010 / C 83/02).
In light of the above, we request the European Parliament to urgently undertake all necessary legal and institutional dialog steps to avoid penalizing abusively the Romanian road transport operators by the German authorities for not applying the minimum wage law in Germany, taking into consideration that:
– as employees of transport companies in Romania, Romanian drivers are paid according to the contract of employment and Romanian legislation applicable
– until now the German authorities have not provided clear and comprehensive information on the enforcement of the minimum wage foreign carriers, although entered into force since the beginning of this year;
– for transit operations there is no competition with the resident carriers – either the carriage of goods or for the transport of persons
– The fact that transport operations whose destination / origin Germany – this constitutes a barrier and an obstruction of the free movement of services in the EU
– The fact that including cabotage operations are regulated by European rules and national law is not entitled to bring limitations common European provisions.
We request to the European Parliament to stop MiLoG!
If the EU rules are established by the European Parliament and the European Commission and not the German Bundestag, then MiLoG to be suspended pending clarification of this issue at EU level.
We ask the European Parliament to repeal the application of MiLoG for road transport companies from countries other than Germany!