Explanatory Memorandum to COM(2001)573 - Harmonisation of certain social legislation relating to road transport - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2001)573 - Harmonisation of certain social legislation relating to road transport. |
|---|---|
| source | COM(2001)573  |
| date | 12-10-2001 |
1. This proposal abrogates Regulation (EEC) N° 3820/85 and replaces it with a new Regulation (hereafter referred to as the Regulation) primarily in order to provide a clear, coherent text within which the rules currently contained in Regulation (EEC) N° 3820/85 may be clarified, simplified and updated. The Commission has been aware for some considerable time that there have been difficulties in interpreting and applying the provisions within Regulation (EEC) No. 3820/85. In the course of meetings with national experts, correspondence with individuals, road haulage and passenger transport associations and competent authorities over the years since the Regulation's introduction, the clear message has been that a common understanding of its provisions has remained elusive.
2. Regulation (EEC) 3820/85 currently provides a common set of Community rules for maximum daily and fortnightly driving times as well as daily and weekly minimum rest periods for all drivers of road haulage and passenger transport vehicles, subject to specified exceptions and derogations. The scope of operations regulated is tremendously diverse - it includes passenger transport and road haulage operations, both international and national, long distance and short distance, drivers for own account and for hire and reward, employees and self-employed. It seeks to combine a uniformity of basic provisions with a considerable flexibility in possible extensions of maximum driving time and reductions in minimum rest periods under certain predefined conditions.
3. Regulation (EEC) 3820/85 also seeks to lay down the circumstances in which the AETR i rules are applied to international road transport operations to and from the Community. The dividing line has proven to be a contentious issue, as this Regulation has not covered all possibilities and even Court judgments i have not always clarified the issues sufficiently.
[1994] ECR I-2177.
4. With the forthcoming introduction of the digital tachograph and the need to provide rules that can be properly checked through this new system and applied uniformly without variations in interpretation throughout the Union, the current arrangement of driving hours and rest periods requires modification. For this reason the Commission is proposing an arrangement that is based on the current system but eliminates elements that made the correct calculation of hours driven, rest periods and breaks a complex and difficult business.
5. The passage of fifteen years since the introduction of the Regulation has seen major changes in the road transport sector: activities formerly undertaken by national or local government services have since been privatised; for certain activities, there is now increased commercial competition and technical improvements to vehicles. Moreover, experience has shown that vehicles exempted because they undertake short distance journeys or which are deemed to operate in a restricted area, such as specialised breakdown vehicles, did not necessarily do so. For that reason the exemptions and national derogations for vehicles have been reduced to a minimum and justified only on account of their light weight or size, short distance travelled, or public interest.
6. Since road transport continues to reinforce its place in the Union as the dominant transport mode, and Community rules provide a common standard in the social field, reinforced by the introduction of a major new checking device, the digital tachograph, it seems wholly appropriate that the Commission be assisted in its oversight in the outworking of these rules by a standing committee of government experts drawn from the Member States. This committee could monitor developments in road transport, advise on possible refinements to the legislation, as well as assist the Commission in drawing up its biennial reports on the implementation of the legislation and in determining the correct and uniform application of the rules. With the pending enlargement of the Union, this committee will become a significant asset in facilitating an overview of developments in the road transport sector.
Contents
- B. Consultation
- C. Legal Base
- D. Objective and scope
- E. Specific Provisions
- Deletions
- Amendments
- F. Justification for Action at Community Level
- Does competence for the planned activity lie solely with the Community or is it shared with the Member States*
- What is the most effective solution taking into account the means available to the Community and those of the Member States*
- What real added value will the activity proposed by the Commission provide and what will be the cost of inaction*
- What forms of action are available to the Community*
7. The effort to gauge the difficulties in implementing Regulation (EEC) 3820/85 has been a constant process of consultation over the years. On 4-5 October 1995, the Commission convened a meeting of national experts to establish common practice and interpretations of the legislation on driving times and rest periods amongst the Member States. This was followed up by a questionnaire to all Member States on some particularly detailed areas. A further questionnaire on the efficient and uniform application of the Regulation's provisions was circulated to the Member States in 1998 and the results where applicable have been included in the current proposal. The Commission has taken account of elements from these enquiries in its current proposal. The need for comprehensible and enforceable legislation has been a constant refrain.
8. The group of enforcement experts that advised the Commission on the digital tachograph has also been tasked to review the current legislation in the light of the current differing interpretations as well as the conclusions from an in-depth Swedish study on the computability of the current rules for the digital tachograph i. They have been assisted in their task by an expert in computational and mathematical issues. The Commission proposal draws on their initial findings. Their ongoing discussions will also provide a basis on which the future enforcement legislation for this field can be updated, an issue that the Commission intends to address by means of a further proposal later in 2001.
9. The Commission noted that at the Transport Council meeting on 2 October 2000, in response to a questionnaire from the French Presidency, there was agreement that there be a technical modification of the Regulation. The current proposal provides a fresh, complete legal text for clarity and ease of reference, within which there are technical modifications that also form a firm basis on which the modern technical checking device - the digital tachograph - can be used effectively and uniformly throughout the Union. Peripheral amendments of Regulation (EEC) 3820/85 cannot address the fundamental problem - ensuring effective enforcement.
10. For the road transport industry, effective and uniform enforcement has been a constant concern. It has been voiced at meetings of the social partners at European level over the years. The employers see it as a way of reinforcing a level playing field amongst their number; the unions are adamant that only through effective and uniform enforcement can their rights under the legislation be assured.
11. The European Parliament has taken the opportunity when debating the Commission's biennial report on the application of the current legislation to express its continued concern at the wide diversity in the frequency and effectiveness of enforcement practice throughout the Union. Moreover, the own initiative report by Mr Grosch MEP on transport policy and the harmonisation of social legislation i called upon the Commission to ensure that in this field thorough controls are put in place together with effective sanctions and that there should be comprehensive reporting on the application of measures by Member States within a common time limit to allow a full overview of social issues within the road transport sector.
12. The Social Partners were consulted on the main changes to the Regulation on 11 December 2000, 16 January 2001 and 5 February 2001. Their views have been noted as have their subsequent written submissions and, where appropriate, have been reflected in the changes proposed.
13. The legal base is set out explicitly in Article 71 of the Treaty (co-decision procedure).
14. The proposal aims to clarify and simplify the current legislation making it easier to comprehend and enforce. The scope has been clearly defined, firstly, by setting out more comprehensively when AETR or the Regulation should apply; and secondly, by setting out the category of goods and passenger vehicles affected - goods vehicles over 3.5 tonnes; and passenger vehicles suitable for carrying over 9 persons - based on the two current major exemptions. The proposal also seeks to update the other current exemptions and derogations to reflect changes in the road transport sector and, in so doing, to broaden the scope of application of the Regulation within the road transport sector in the Union.
15. Regulation (EEC) 3820/85 already provides considerable flexibility in driving times, rest periods and breaks. This type of flexibility has nevertheless been at the expense of effective enforcement. The proposal withdraws the current compensation arrangements, which were generally unable to be accurately computed and could easily be ignored. While flexibility is still retained, it is now within more computable, enforceable, understandable and simple boundaries. Increases in the standard daily rest period and a predefined enforceable timeframe for any reduced rest periods are balanced by an allowance of certain reduced daily and weekly rest periods without compensation.
16. The proposal also seeks to clarify in a definitive way all the terms used within the Regulation, so that there is little opportunity for individual interpretations of the norm which have led in the past to a considerable number of cases before the European Court of Justice, as well as variations in the way enforcement is applied to drivers of vehicles travelling throughout the Union, e.g. from Sweden to Portugal.
17. Article 17a of Directive 93/104/EC (the Working Time Directive) i, as amended by Directive 2000/34/EC i, sets out minimum requirements with respect to working time for mobile workers (including those in the road transport sector). In particular, Article 17a i provides that Member States shall take the necessary measures to ensure that mobile workers are entitled to 'adequate rest'. This Regulation contains more specific provisions on 'adequate rest' for mobile workers in the road transport sector.
18. In line with the overall aim of better enforcement, the obligations upon employers as well as employees are made more explicit, so that there is a positive incentive for both parties to ensure that their operations are in conformity with the Regulation.
19. A constant difficulty in enforcing a Regulation that covers different jurisdictions within the Union is detection by officers in one Member State of infringements committed in another Member State. The current Regulation leaves it up to Member States to decide if they ignore or penalise such infringements and notify the competent authorities of the Member State in which the offence was committed. This provides a major loophole in enforcement activity. The Commission proposes a positive measure whereby Member States can penalise a driver found to have committed an infringement against the Regulation's provisions in a different Member State on the basis that, on the one hand, a driver who has previously breached the rules may pose a road safety risk in the Member State where he has been apprehended, and on the other hand, that the internal market should also be a single uncompartmentalised area as far as infringements against the common rules are concerned. Such infringements may be civil, administrative, or criminal in nature.
20. The problem of drivers using alternatively vehicles which come under the Regulation and those which do not, hence presenting an incomplete record of their driving times and rest periods, has been addressed. It is intended to remedy this situation by obliging drivers to record all their driving times within a daily driving period, even if for part of that period they drive vehicles outside the scope of the Regulation.
21. The Commission is keen to ensure that a uniform and effective enforcement of the Regulation is facilitated, that developments in this field throughout the Union are adequately monitored and that good practice is encouraged. To that end it advocates a standing Committee through which common views and decisions on the current application of the Regulation can be reached swiftly and decisively.
22. The provisions of the proposed Regulation are explained in the following paragraphs (a comparative table showing the text of the current Regulation (EEC) N° 3820/85 and the provisions of the proposal is also attached).
23. Article 1 sets out clearly the three aims of the Regulation's provisions, which are taken directly from the first recital of Regulation (EEC) 3820/85, namely harmonisation of conditions of competition as well as improvement of working conditions and road safety.
24. Article 2 rewords the scope as defined in Regulation (EEC) 3820/85 by adding the two main vehicle categories dealing with goods and passenger vehicles currently dealt with in that Regulation's Article 4 (Exclusions). It also states and amplifies the scope of the Regulation and AETR i in the light of the ruling of the European Court of Justice i.
[1994] ECR I-2177.
25. Article 3 presents an updated number of exemptions. The comparative table in the Annex provides a summary of the changes. In outlining below the changes to Article 4 of Regulation (EEC) 3820/85, the current paragraph numbering is used.
26. A number of exemptions in Regulation (EEC) 3820/85 have been deleted, some of which have been relocated elsewhere to provide a more logical home.
- current Article 4 i and i have been incorporated into the proposed Article 2 on scope;
- current Article 4 i has been reattributed to the proposed Article 13 on national derogations. There has been considerable abuse of Article 4 i, evidenced by the frequency with which the European Court is asked to make a judgement on matters arising from this particular exemption. In many cases, what were nationally owned or funded services in 1985, are now private sector industries. Competition and road safety issues now arise where they did not when Regulation (EEC) 3820/85 was first written. As Article 4 i is an exemption from the Regulation, Member States are unable to make national provisions to reduce abuses. It has therefore been moved to the proposed Article 13(1)(g), where national derogations are permitted, in order that Member States may place such restrictions as are deemed necessary. In addition those areas where service provision is now firmly within the private sector have been deleted in recognition of the pressures of competition that now prevail, namely in the gas and electricity sectors, telegraph and telephone services, carriage of postal articles, radio and television broadcasting and detection of radio or television transmitters or receivers.
- current Article 4 i - milk collection vehicles -The advent of refrigerated vehicles and the introduction of commercial competition mean that the justification for a total exemption is no longer tenable. Those services provided locally and therefore with only a minor impact on the market may come within the proposed national derogation in Article 13(b) which now includes vehicles used for farming within a 50 km radius.
27. A number of exemptions contained in Article 4 of Regulation (EEC) 3820/85 have been amended to restrict their ambit to those activities undertaken by specialised vehicles, within a limited distance, and in recognition of the significant trend towards the provision of such services by the private sector.
- current Article 4 i dealing with civil emergency and military vehicles, is made more precise, to bring operations working on the periphery of such public organisations within the scope of the Regulation. In times of emergency, such transport operations could and would be exempted by virtue of the current Article 4 i in the short term or by a national relaxation of the rules under the current Article 13 i.
- current Article 4 i - specialised vehicles for medical purposes - the new text restricts the exemption to state-owned or funded vehicles in recognition of the more competitive environment prevailing in Member States.
- current Article 4 i - this particular exemption has been claimed by peripheral vehicles associated with circuses or fun-fairs, such as large hamburger vans, and thus it is appropriate for the exemption purely to be restricted only to specialised vehicles transporting circus and fun-fair equipment. As carriage by road by these specialised vehicles is an ancillary activity and must of necessity be slow, they would not be under competitive pressure or pose a road safety risk.
- current Article 4 i - the exemption for specialised breakdown vehicles in Article 4 i of Regulation (EEC) 3820/85 is widely abused - commercial breakdown services regularly travel long distances, nationally and internationally, without the road safety requirements this Regulation provides. For this reason a 50 km restriction is placed on the exclusion of their activity from the scope of the Regulation. There is no overriding reason why vehicles operating in a national or international context should not come within the Regulation's provisions.
- current Article 4 i - non-commercial carriage of goods - the amendment restricts the exemption to the use of smaller vehicles. A vocational licence is required by drivers of larger vehicles, which should comply with the Regulation. The deletion of for personal use reflects the difficulties in interpretation, e.g. where charitable relief aid is concerned.
28. A number of exemptions have been retained in the proposal:
- current Article 4 i on regular passenger transport under 50 kms has been retained given the short distance travelled, as well as the cost and disruption to services inclusion might occasion. Possible difficulties with mixed scope working highlighted by the enforcement officers' group have been addressed in the proposed Article 6 i.
- current Article 4 i, which is retained given the short distance range of such vehicles.
- current Article 4 i - vehicles used for emergencies or rescues provide a vital service in a non-competitive environment.
- current Article 4 i - no recording equipment can normally be installed on vehicles undergoing road-tests.
29. The provisions of the proposed Article 4 take over, and in some cases amplify or add to the definitions contained in Regulation (EEC) N° 3820/85:
- Paragraph 1 redefines carriage by road to bring within the scope driving undertaken both on and off public roads, such as site driving.
- Paragraph 2 amends the current definition of a motor vehicle and tractor to prevent an exemption being claimed by vehicles running partly on rails but mainly on roads.
- Paragraph 3 provides a small but significant change in the definition of a driver. It will mean that drivers carried in a convoy of vehicles but who switch vehicle to commence driving will still be caught by the provisions of this legislation.
- Paragraph 4 sets out the current definition of a break, found in Article 7 i of Regulation (EEC) 3820/85. The latter half of the current definition is included in a new simple definition of other work found in paragraph 5. A suggested clarification by the enforcement officers group of the term break was not taken up, as consultations with the social partners revealed that neither side considered it a helpful simplification.
- Paragraph 5 provides a simple definition of what constitutes other work, suggested by the enforcement officers group and adds the statement currently found in Article 7 i. Other work as a term is also used as a category for the tachograph in Article 15(3)(b) of Council Regulation (EEC) 3821/85.
- Paragraph 6 provides a simpler definition of rest.
- Paragraphs 7 and 8 introduce definitions of daily and weekly rest periods, which were previously in Article 8 of Regulation (EEC) 3820/85. They no longer include compensation arrangements. Enforcement of such arrangements in all their permutations has proven to be fraught with difficulty, if not impossible. As a balance the standard daily rest periods are increased to 12 hours. The reduced daily rest periods are retained for flexibility, as is the 24-hour reduced weekly rest option. However the former option of 36 hour weekly rest, if taken at the place where the driver or vehicle is normally based, has been deleted in recognition that this option has tended to become the norm rather than the regular 45 hour weekly rest. Taken together with other measures within the body of the new proposal these set definitions are designed to provide a balance between flexibility and enforceable rest periods.
- Paragraph 9 provides a simpler definition of the week. The current concepts in Regulation 3820/85 have been found to lead to difficulties in enforcement given, firstly, that the start of a calendar week does not necessarily coincide with the end of a weekly rest period and secondly, that the weekly driving period is computed as the driving period between two weekly rest periods. As a simpler option, the national enforcement officers therefore strongly advocate the return to a flexible week, where only the two weekly rest periods are concerned.
- Paragraphs 10 and 11 define the daily and weekly driving time periods, which mostly mirror those in Regulation 3820/85. Here the definitions highlight and set out in clear terms what each period comprises.
- Paragraph 12 takes over the definition in Regulation (EEC) 3820/85 of permissible maximum weight.
- Paragraph 13 updates the definition of 'regular passenger services' in the light of the latest Community legislation.
- Paragraph 14 defines the term multi-manning to avoid ambiguity and to cover instances where more than two drivers would be present in the vehicle.
- Paragraph 15 defines transport undertaking to clarify the ambit of new provisions in Articles 10 and 19. The definition is largely based on that set out in Article 1 i, third indent of Council Directive 96/26/EC.
30. The provisions on minimum ages for drivers within Article 5 of Regulation (EEC) 3820/85 are deleted. These provisions have been an anomaly within the Regulation and are addressed in the current proposal for a Directive on the training of drivers i. The provisions relating to drivers' mates and conductors have been retained and set out more clearly in the proposed Article 5.
31. Article 6 sets out in revised and defined terms the same basic driving hour provisions as are in Regulation (EEC) 3820/85.
- Article 6 i - the maximum daily driving time remains 9 hours with an allowance up to 10 hours twice a week.
- Article 6 i - the week in this instance is flexible and not fixed, being the period between one weekly rest period and another; in length it may extend to a maximum of 144 hours or the equivalent of 6 days within which daily driving periods may take place. This 144 hours puts in plain terms what is currently set out in a longer, less transparent paragraph, namely the current Article 6 i third paragraph of Regulation (EEC) 3820/85
- Article 6 i states for clarity's sake the maximum weekly driving time which the current Regulation leaves unsaid, namely 56 hours. For the sake of coherence, this is a maximum of 56 hours within one week.
- Article 6 i restates the maximum accumulated driving time available in two consecutive flexible weeks, namely 90 hours.
- Article 6 i clarifies that driving time may not be regarded as starting whenever a driver crosses an internal or external frontier of the European Union. It is also inserted to facilitate the introduction of new provisions on liability in Article 10.
- Article 6 i addresses the difficulty of drivers working both within and outside the scope of the Regulation, for example, drivers of urban passenger transport vehicles used for regular journeys (currently excluded under Article 4(3)) who might also drive longer distance journeys in the course of their work. Regulation (EEC) 3820/85 does not oblige such drivers to record their out of scope work. Any record of their driving time under the current Regulation might therefore not take account of this additional driving and hence in practice the driving limits could be exceeded.
- While initially the Commission considered that the problem of such mixed scope driving could be resolved through bringing those currently excluded from the scope of the Regulation within its ambit, such as vehicles used for passenger transport under 50 kms, as strongly recommended by the enforcement officers group, nevertheless the industry demonstrated in subsequent discussions that the cost and disruption to current practices would be disproportionate to the benefit obtained. A further option of forbidding mixed scope driving in the course of a day also did not deem practicable for the industry. For road safety reasons and to promote safe working practices in the industry, this provision therefore seeks to ensure that any person who operates outside of the Regulation and thereafter continues to work on a regulated journey during the same day must record all his driving time. This solution is in line with the recent Court of Justice ruling in this area. i
32. The proposal does not include the current special derogation for occasional international passenger transport services, set out in the current Article 6 i paragraphs 4 & 5, under which the driver's weekly rest may be postponed until 13 days after his previous weekly rest. Such an arrangement neither lends itself to adequate enforcement arrangements nor promotes good road safety nor adequate working conditions. In addition, the possible extension of the derogation to national passenger transport introduces a further complicating factor in any calculation. However, the revised rules on weekly rest do provide for a reduced weekly rest period of 24 hours with a normal weekly rest period of 45 hours after 13 days. The deletion of this special clause may be considered a positive step in road safety terms, particularly in the light of recent tragic bus fatalities and complaints of abuse of the current arrangements. Moreover, in order to introduce a system of rules that can be efficiently and uniformly enforced throughout the Union, rules which will enable the digital tachograph to be used to its full potential, it is vital for them to be simple, with clearly defined elements of flexibility, easily understood both by industry and the enforcement agencies in the Member States.
33. Article 7 deals with breaks. It seeks to address the anomaly in the current text, whereby a driver may legally drive for a possible nine hours whilst only having had a break of fifteen minutes. Under the current proposal the new Article 7 means that a driver can drive for a maximum of seven and a half hours interrupted by a break of at least 30 minutes. The decision to establish 30 minutes as a minimum driving break is based on a road safety as well as a practical perspective, since 15 minutes are insufficient to permit basic relief and refreshment for the driver. This scenario is more acceptable in social and road safety terms and yet retains flexibility to the advantage of drivers and employers alike. It also retains the key element of the current Regulation, namely after four and a half hours driving a break of 45 minutes is required. The clarity of the proposal will aid compliance and enable uniform enforcement of the rules.
34. Article 8 simplifies the provisions on rest periods while reflecting some of the basic parameters found in Regulation (EEC) 3820/85 in a more precise way by using defined terms.
- Article 8 i and i clarifies that the revised basic daily rest period of 12 hours must be completed not later than 24 hours following the previous daily rest period or weekly rest period. The reduced rest period remains at 9 hours, applicable three times a week. The trade-off between compensation for reduced daily rest periods and a higher minimum daily rest requirement has been discussed in the definitions section (point 29, concerning paragraphs 7 & 8).
- Article 8 i seeks to put in more precise terms the determination of multi-manning hours, taking account of the new minimum rest period, while leaving the basic concept of Regulation(EEC) 3820/85 intact.
- Article 8 i ensures that reduced weekly rest periods cannot in practice be taken ad infinitem. It imposes a restriction that is enforceable and yet allows flexibility. It provides better social conditions for drivers and by abolishing the necessity to compensate for a reduced weekly rest period it also ultimately benefits employers.
- Article 8 i slightly rewords the current text so that drivers can use other sleeping facilities in addition to a bunk, provided they are suitable for the purpose. It recognises the progress in vehicle construction and provision over the last fifteen years.
35. Article 9 seeks to standardise a rule on ferryboat and train usage, which has been applied differently in Member States. Where a driver accompanies a vehicle on a ferry or train, should he take a daily rest period, he is often required to move the vehicle on or off the train/ferry during this rest period. In considering both practicality and road safety, there would be no detrimental effect on a driver who, during a full 12 hour daily rest period, was allowed to interrupt his rest period, provided that the interruptions did not exceed one hour.
36. Article 10 retains and clarifies the current Article in Regulation (EEC) 3820/85, which prohibits certain types of payment, but adds certain other provisions. The Article was designed to make the undertaking liable for infringements that were a direct consequence of pressure, rules and incentives to encourage a driver to work and drive long hours. However it has generally been found to be unenforceable, mainly because it is impossible to prove to the satisfaction of a criminal court whether or not road safety is likely to be endangered. Thus a company might avoid prosecution for infringements committed by the driver despite the fact that the undertaking was the prime mover in the infringement. The original Article has been retained in Article 10 i however to underline commitment to this perspective.
37. To introduce a more practicable, uniform and effective enforcement solution, several new paragraphs have been added.
- Article 10 i places a direct onus on the employer to ensure compliance with this Regulation. It incorporates the current Article 15, while clarifying the transport undertakings duties and specifying regular rather than periodic checks for conformity with the Regulation and Regulation (EEC) 3821/85. Where undertakings are responsible for scheduling a driver's work, they should be made responsible where that schedule is inadequate and/or does not allow the driver sufficient scope for delays. Drivers should also be free from fear of reprisal if they need to stop driving once they have reached the legal maximum.
- Article 10 i ensures that each Member State makes it an infringement for a driver to breach the provisions of the Regulation where this is committed in whole or in part on its territory. Moreover it is also required that it should be an infringement where a driver is found to be driving on the territory of a Member State having breached the rules in the Regulation at any time since the last weekly rest period. The act of driving is on the territory of that Member State, even though the rules may have been breached outside its territory during the preceding week. The weekly rest period has been chosen since it seems reasonable to assume that driving for long periods without adequate rest will be a risk to road safety in the Member State where a road-side inspection takes place. Here jurisdiction is being claimed on the basis of an act committed in the Member State, i.e. driving without due rest. The general introduction of this provision amongst Member States can prove a more effective means of enforcement. Current practices, which involve a Member State in which territory the infringement is detected informing the Member State of establishment, are too unwieldy and too unevenly applied by Member States' competent authorities. Moreover, they allow operators or drivers the opportunity to destroy or alter evidence to conceal infringements.
- Article 10 i ensures that a transport undertaking can be held liable if infringements are detected which have been committed by drivers for its benefit. Jurisdiction is claimed on the basis of the fact that the undertaking is established on the territory of the Member State, even though records may indicate that the driver failed to take an adequate rest period on the territory of another Member State. Experience amongst enforcement authorities has indicated that a considerable proportion of infringements, and fraud, are directly attributable to undue pressure placed upon drivers by undertakings. Undertakings may often evade any penalty whilst the drivers do not. Drivers may even be asked by the undertaking to falsify records to prevent detection. Such a situation will not further respect for the rules in force.
- Article 10 i provides for two defences: the first refers to the obvious case where the driver acts outside his employer's instructions; the second defence concerns driving periods undertaken by the driver without the transport undertakings' knowledge.
- Article 10 i places a duty on the driver to provide sufficient information to enable his employer to comply with the rules in Chapter II of the Regulation. There have been substantial enforcement difficulties where drivers work for more than one transport undertaking. Particularly where this concerns agencies involved in the placement of drivers, it also seems reasonable under such circumstances to ensure that each undertaking is in possession of sufficient information to allow it to ensure compliance with the provisions of the Regulation.
38. Articles 11 and 12 retain the provisions in Regulation (EEC) 3820/85 but seek to clarify and simplify the text.
39. Article 13 sets out the national derogations. Paragraph 1 is taken from Article 13 i of Regulation (EEC) 3820/85. It is inserted to ensure the objectives of the Regulation remain pre-eminent and that it applies to all potential derogations rather than to one explicit case.
40. A number of the current derogations have been deleted (current Article 13(1)(a), (d), (e), (f), and (k)). Others have been amended (current Article 13(1)(b), (c), (g), (i) and (j)) or retained (current Article13(1)(h) - island exemption), while one has been added. The position of the national derogations is set out below, using the Article numbering of Regulation (EEC) 3820/85.
- current Article 13(1)(a) - in the interests of road safety and the welfare of those who are carried on such minibuses, and in the light of the unanimous decision of the enforcement officers group in favour of deletion and in particular the experience of representatives from those Member States where the derogation is currently exercised, this exemption has been deleted.
- current Article 13(1)(d) - as such services appear to be mostly on a private basis, such an exclusion can no longer be justified.
- current Article 13(1)(e) - this derogation is covered by the new provision (proposed Article 13(1)(b)). Where the market is outside a 50km radius, the normal transport rules should apply.
- current Article 13(1)(f) - the incidence of this type of vehicle is now rare and could be covered by many of the proposed changes. Many of the undertakings currently claiming this derogation are travelling long distances with large vehicles and should come under the ambit of the Regulation. Those that operate in a short radius of their base could take advantage of the proposed Article 13(1)(c). In both instances driving may not constitute the driver's main activity and the load may not be carried for commercial and competitive purposes.
- current Article 13(1)(k) - now encompassed by the provisions of the proposed Article 13 (1)(b).
- current Article 13(1)(b) - Clarified and restricted to a vehicle either owned or being hired in without a driver in order to prevent abuse by sub-contractors as well as by persons or businesses held to be in competition with others (Anders Sjöberg - ECJ i).
[1998] ECR I-1225.
- current Article 13(1)(c) - Enforcement authorities had some serious concerns that those engaged in horticulture or agriculture were abusing the exemption that they currently enjoy. This reworded derogation is designed to allow sufficient freedom for those who work on the land whilst restricting the scope for transport operations using agricultural vehicles.
- current Article 13(1)(g) - The derogation has been restricted to vehicles of 7500kg or less, in line with a general approach to exceptions where a weight threshold is appropriate. Otherwise it remains unchanged. The last sentence of the existing Regulation has been removed as it appears no Member State has ever used this provision.
- current Article13(1)(i) - This provision was modified to encourage the use of environmentally friendly modes of transport in local operations. It is now restricted by weight and distance for road safety reasons, to ensure that such vehicles do not cover long distances without some control and yet encouraging the use of such vehicles, for example, in city centres.
- current Article 13(1)(j) - An additional qualifying provision is added to ensure the exemption is not abused for commercial profit
Addition
- The former exemption under Article 4 i - state utilities - has been made a national derogation. It was moved from Article 4 where it was a blanket and unequivocal exemption. Many of these utilities are now no longer state controlled and there are commercial interests that could jeopardise road safety considerations. The derogation remains here to allow Member States the freedom to relax the rules on their own territories as and where applicable, provided that the provisions of the proposed Article 1 are not jeopardised. In addition those utilities which are now in the private sector have been removed.
41. A new Article 14 is used to underline the distinction between those derogations which Member States may simply introduce on their territory (the current Article 13(1)) and those situations where consultation or prior authorisation of the Commission is required (the current Article 13(2)). While retaining the current provisions generally, the new Article deletes the word seriously as its use in context appears redundant.
42. The largest group of vehicles totally excluded from the Regulation comprises the urban bus sector or those regular passenger services whose route does not exceed 50 km. While the Commission is aware that this sector is primarily of a local nature and hence the prinicple of subsidiarity should apply, nevertheless in several Member States this sector has been deregulated and hence there is the risk that road safety concerns and working conditions may be compromised for profit. For this reason, the new Article 15 imposes a general obligation on the Member States to provide adequate rules on driving times, breaks and rest periods for this sector.
43. Article 16 which allowed an alternative timetable and roster regime for regular national and border international passenger services instead of using a tachograph to record driving time and rest periods was unanimously considered by the Member States enforcement officers to be outdated. Most if not all vehicles used in this type of work were considered to be already fitted with tachographs and hence because of the current Article 14 i were automatically barred from this alternative. Given the distances covered by such services, the provisions of the current Regulation were also difficult to enforce accurately using this alternative regime, leaving the system open to abuse. It is therefore proposed to phase out the alternative regime by 31 December 2006.
44. The short transitional period of three years for those services formerly covered by the alternative regime allows those transport undertakings still relying on the duty roster and timetable to make provision for the installation of tachograph equipment in their fleet. In the interim, the required period to be covered by the duty roster is raised to the previous 28 days in the proposed Article 16(3)(a) to reflect the information to be available on the digital tachograph.
45. Article 17 introduces a new element to the current requirement for a biennial report to be drawn up by the Commission, namely, inclusion of details on the implementation of Regulation (EEC) No 3821/85. Given the forthcoming transition to digital tachographs, a comprehensive overview including the impact of the introduction of digital tachographs within the road transport sector is a logical and necessary addition.
46. The proposed Article 18 updates and simplifies the current Article 17 i.
47. Article 19 deals with penalties. It introduces the now standard phrase as regards their necessary impact. It also introduces a provision to ensure that within the range of sanctions that are applied by Member States, a certain consistency is achieved, namely, that detection of serious infringements can result in a serious and immediate penalty.
48. Article 20 amplifies the current Article 17 i. The addition is intended to improve the exchange of information between Member States and to avoid problems with the principle of non bis in idem. This article provides for the exchange of information rather than mutual legal assistance.
49. The current Article 17 i, first indent, is retained to facilitate and encourage the regular exchange of intelligence between Member States' enforcement authorities, e.g., that infringements have been and are likely to be committed by a particular transport undertaking.
50. Article 21 takes over the provision in Article 3 of Regulation (EEC) 3820/85 that allows the Community to negotiate with third countries as regards the implementation of the Regulation. This will be necessary, particularly in the context of the AETR, once the revision of Council Regulation (EEC) 3820/85 has been adopted.
51. Articles 22 and 23 establish a standing advisory Committee to assist the Commission in overseeing the implementation of this Regulation. It is envisaged that this group would comprise government experts drawn from the Member States, who can monitor developments, contribute to a common understanding of the application of the legislation, as well as assist the Commission in drawing up its biennial reports on the implementation of the legislation, a process which up until now has not seen a wholehearted commitment from all Member States. Moreover given the priority of ensuring a uniform understanding and application of the Regulation, it is thought more efficient to decide on enforcement queries through such a Committee structure. The Commission envisages this Committee having a clear link with the Social Partners meeting at European level.
52. Articles 24 and 25 provide respectively for the repeal of Regulation (EEC) 3820/85 and lay down the implementation date for the changes.
What are the objectives of the proposed action in relation to the Community's obligations*
53. The Commission's proposal seeks to enhance and harmonise interpretation, application and enforcement of existing EU law by clarifying, simplifying and updating the common rules as well as introducing measures to facilitate more effective and uniform checks and sanctions throughout the Community.
Does competence for the planned activity lie solely with the Community or is it shared with the Member States*
54. The action falls under the exclusive competence of the Community (Article 71 of the Treaty).
What is the Community dimension of the problem (for example how many Member States are involved and what solution has been used up to now*)
55. The subject affects all Member States and road transport operators as well as drivers in all Member States. It has been found that differences in the interpretation and implementation of Regulation (EEC) 3820/85 between Member States can lead on the one hand to uncertainty as to the differing national interpretations of the rules applicable in international road transport operations and on the other hand to difficulties for Member States' enforcement agencies to enforce the EU provisions uniformly and effectively. Enforcement officer representatives from all Member States have noted similar problems in defining the scope of exemptions and national derogation provisions. Moreover developments since 1985 have seen a continuing trend throughout the Community towards the provision of public services by private operators introducing a competitive element and hence a pressure on road safety and working conditions - therefore exemptions and derogations would need to be reviewed.
What is the most effective solution taking into account the means available to the Community and those of the Member States*
56. Only joint action at Community level can further strengthen, improve and harmonise the application of the Community provisions.
What real added value will the activity proposed by the Commission provide and what will be the cost of inaction*
57. The proposal will facilitate a uniform comprehension, application and enforcement of the common EU rules. It will update and clarify exemptions and derogations and introduce provisions to enable more effective checks to take place within the single market. It will provide enforcers and the industry alike with a clearer view of the Regulation's provisions and enable these provisions to be computable for the new digital tachograph.
Inaction would leave an unsatisfactory, uneven and uncertain application of the rules and would not recognise the changes in the market or the recent requirements such as the introduction of the digital tachograph.
58. The proposal seeks to clarify and update the text of Regulation (EEC) 3820/85, which has not been amended significantly for over 15 years. No other action would be appropriate to achieve this goal