Explanatory Memorandum to COM(2017)278 - Amendment of Directive 2006/22/EC as regards enforcement requirements and laying down of specific rules with regard to posting drivers in the road transport sector - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2017)278 - Amendment of Directive 2006/22/EC as regards enforcement requirements and laying down of specific rules with regard to ... |
|---|---|
| source | COM(2017)278  |
| date | 31-05-2017 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
In the road transport sector, the Union social rules contribute to achieving the policy objectives of improving drivers' working conditions, ensuring fair competition between road transport companies and enhancing road safety for all road users. Tailoring these rules to the needs of the sector and making them easier to apply and enforce uniformly and efficiently is a key part of the Commission's strategy to further integrate the road transport market in the EU and make the sector fair, efficient and socially accountable, as outlined in the white paper on transport of 28 March 2011 1 .
The key social rules applying to road transport include provisions on the organisation of drivers' working time set out in Directive 2002/15/EC 2 , minimum requirements for enforcement set out in Directive 2006/22/EC, rules on driving times, breaks and rest periods under Regulation (EC) No 561/2006 3 and provisions on posting of workers established in Directive 96/71/EC 4 and the enforcement Directive 2014/67/EU 5 . These legal acts are part of a wider effort to improve the working conditions of drivers, ensure fair competition between operators and improve the safety of European roads, as well as to ensure a balance between the drivers' social protection and operators' freedom to provide cross-border services.
An ex-post evaluation of the social legislation in road transport and its enforcement, carried out in 2015-2017 6 as part of the regulatory fitness programme (REFIT), concluded that the rules in place do not effectively and efficiently address the risks of deterioration in working conditions and distortions of competition. This is due to shortcomings in the legal framework. Certain rules are unclear, unsuitable or difficult to implement or enforce, which results in differences in implementation between Member States of the common rules and creates a risk of fragmentation of the internal market.
The analysis of the problems on the ground show in particular that differences in interpreting and applying of Directives 96/71/EC and 2014/67/EU to the road transport sector need to be addressed as a matter of urgency. The impact assessment supporting this legislative proposal concludes that the posting provisions and administrative requirements do not suit the highly mobile nature of the work of drivers in international road transport. This causes disproportionate regulatory burdens for operators and creates unjustified barriers to provision of cross-border services. The legal and practical difficulties in applying the posting rules to road transport sector was highlighted in recital (10) of the Commission proposal of 8 March 2016 7 for amending Directive 96/71/EC: Because of the highly mobile nature of work in international road transport, the implementation of the posting of workers directive raises particular legal questions and difficulties (especially where the link with the concerned Member State is insufficient). It would be most suited for these challenges to be addressed through sector-specific legislation together with other EU initiatives aimed at improving the functioning of the internal road transport market.
This proposal provides for a holistic approach to addressing the risks of inadequate working conditions for drivers, including terms and conditions of employment, and at the same time mitigating the excessive regulatory burdens on operators and preventing distortions of competition. The overarching goal is to ensure a balance between adequate working conditions for drivers and freedom to provide cross-border services for operators.
• Consistency with existing policy provisions in the policy area
This proposal is a part of a broader ongoing review of the Union road transport legislation. It is closely linked with an initiative to improve the clarity and adequacy of the rules on driving times, breaks and rest periods set out in Regulation (EC) No 561/2006 and those on the use of tachograph set out in Regulation (EU) No 165/2014. It is also related to the ongoing review of the market rules on access to the profession of road transport operator (Regulation (EC) No 1071/2009), access to the international haulage market (Regulations (EC) No 1072/2009) and access to the international passenger market (Regulation (EC) No 1073/2009). The social and market rules form a comprehensive and coherent legal framework, and enforcing them in a consistent and effective way is key to creating a fair, safe, environmentally and socially sustainable road transport sector. None of the initiatives on their own can effectively address the ongoing social and market challenges.
• Consistency with other Union policies
The proposal contributes to two of the priorities of this Commission, notably creating “a deeper and fairer internal market” and boosting 'jobs growth and investment'. It is consistent with actions aiming to combat social unfairness and unfair competition and to create a social framework for new employment opportunities and fair business conditions.
One aim of the proposal is to ensure decent working conditions and appropriate social protection. It therefore fits with the objectives of the Commission's Social Agenda and with the initiative on the creation of an EU pillar of Social Rights. It is also consistent with the Charter of Fundamental Rights of the European Union, Article 31 of which lays down the right to fair and just working conditions.
The proposal contributes to the REFIT Programme by reducing regulatory burdens, simplifying and adapting certain rules to the specific needs of the sector. It will also make enforcement more efficient by making better use of existing control tools and systems.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
This proposal amends Directive 2006/22/EC and lays down sector-specific rules on the posting of workers in relation to Directives 96/71/EC and 2014/67/EU.
Directive 2006/22/EC is based on what is now Article 91(1) of the Treaty on the Functioning of the EU (TFEU), and this provision should also be relied upon for its amendment.
Directives 96/71/EC and 2014/67/EU are founded on (what is now) Article 53(1) TFEU. However, since the rules proposed here exclusively pertain to situations specific to the provision of transport services, Article 91(1) TFEU should be relied upon.
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• Subsidiarity
Under Article 4(2)(g) TFEU, the EU shares regulatory competence in the field of transport with Member States. However, existing rules can only be amended by the EU legislator.
Shortcomings in the current legislation mean that Member States implement and enforce EU social rules differently, including those on the posting of workers. Guidelines or self-regulation by Member State would not be sufficient to ensure that the social rules in road transport are consistently applied and enforced throughout the EU. And action at EU level is therefore justified.
• Proportionality
The proposal does not go beyond what is necessary to address the identified problems of inadequate working conditions for drivers and distortions of competition between operators.
As stated in Section 7.2 of the impact assessment, the proposal puts forward the policy option considered the most suitable and proportionate, providing a balance between enhancing working conditions for drivers, reducing regulatory burdens for operators and enforcing the rules effectively across borders.
The proposal focuses on simplifying, clarifying and adjusting certain rules to meet the needs of the sector. It avoids any unnecessary administrative burden on operators and aims to ensure that the requirements for administrative cooperation and mutual assistance between Member States are proportionate. The impact assessment concluded that the envisaged policy measures will have no disproportionate impact on SMEs.
• Choice of the instrument
As the proposal makes a limited number of amendments to Directive 2006/22/EC and lays down sector-specific rules on posting of workers in the road transport sector in relation to Directives 96/71/EC and 2014/67/EU, the instrument chosen is also a directive.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
The Enforcement Directive 2006/22/EC, together with the Driving Time Regulation (EC) No 561/2006 and Working Time Directive 2002/15/EC, were subject to a comprehensive ex-post evaluation carried out in 2015-2017 8 . This evaluation was supported by an external study 9 .
The main issues identified were:
- divergent interpretation and enforcement of the provision on recording periods when a driver is away from the vehicle;
- violation of the rules on the working time leading to excessive working hours for drivers and accumulated fatigue with adverse effects on drivers' health and safety and on road safety;
- weak enforcement of the working time provisions and lack of uniform data on monitoring and compliance checks;
- poor administrative cooperation and mutual assistance between the Member States hindering consistnet implementation of EU rules;
- inconsistent national systems assessing the risk ratings of transport undertakings, hindering information exchange and data comparison with a view to effective checks;
- insufficient use of data in risk rating systems hampering effective targeting of controls;
- unaddressed risks of deteriorating working conditions linked with inadequate pay and social protection of drivers working for long periods outside their country of employment.
The provisions on the posting of workers were not an explicit part of this REFIT evaluation. However, difficulties with the application of diverging national measures on the posting of workers in the road transport sector showed that the general rules on posting are not suitable for the highly mobile workforce in road transport and that the administrative requirements are disproportionately burdensome, thereby restricting freedom to provide cross-border services.
• Stakeholder consultations
Extensive stakeholder consultations were held to prepare this proposal, in line with the minimum standards for the consultation of interested parties set out in the Commission Communication of 11 December 2002 (COM(2002) 704 final).
All the relevant stakeholder groups contributed to the consultation process: national authorities, enforcement bodies, associations representing road transport (freight and passenger) operators, freight forwarders, shippers, SMEs, trade unions, drivers and other road transport workers. In particular, the European Social Partners have been extensively consulted throughout the entire process. A variety of open and targeted consultation methods and tools were used:
- A High Level Conference of 4 June 2015 on a Social Agenda for Transport launched a broad debate on the social aspects in road transport; it brought together some 350 participants: decision makers, experts in transport, social partners;
- Seminars at the end of 2015 which brought together industry stakeholders, representatives of Member States and the social partners at the EU level. The discussions focused on how the social and internal market legislation was working in road transport;
- A Road Transport Conference on 19 April 2016 with a workshop dedicated to internal market and social aspects of road transport. There were some 400 participants, in particular representatives of the Member States, Members of the European Parliament and key stakeholders who discussed the objectives and scope of the planned Road Initiatives;
- Five tailored surveys were launched to obtain the views of the national transport ministries (with a focus on the implementation and interpretation of the rules), enforcement authorities (with a focus on enforcement practices, enforcement costs and benefits), businesses (with a focus was on the impact of legislation on the operators in the market), trade unions (the focus on the impact of the legislation on drivers) and other stakeholders such as industry associations (with a focus on overall views of the effects of the legislation). In total 1441 responses were received (of which 1269 were from road transport firms).
- Interviews with 90 stakeholders (of which 37 were with drivers) were held to gather insights on stakeholders' experiences how enforcement worked and whether it was effective and of challenges with compliance.
- A public consultation 10 between 5 September and 11 December 2016 to define the problem and identify potential solutions. Of the 1378 responses 1209 were from drivers, operators, shippers, forwarders and 169 from national authorities, enforcement bodies, workers' organisations and industry associations;
- A SME panel survey between 4 November 2016 and 4 January 2017. The 109 responses received, provided views on the objectives of the revising the legal framework and potential solutions;
- An on-line survey of drivers (the 345 responses provided views on potential measures, although, of these, 140 replies were from the Netherlands and 127 from the UK); a survey of the national authorities and enforcement bodies (41 responses received from 27 EU Member States plus Norway and Switzerland) and an operators' survey (73 responses, however, again, this was not fully representative as 58 replies were from Hungary);
- Interviews with 7 transport companies, 9 national industry associations, 9 national authorities, 4 national workers' unions and 6 European Social Partners.
The European Social Partners were also regularly informed and consulted in several bilateral meetings with the Commission and at regular meetings of the Sectoral Dialogue Committee on Road Transport and of the Social Partners' Working Group.
The consultation activities confirmed the main problems of: 1) inadequate working conditions for drivers; 2) distortions of competition between transport operators; and 3) regulatory burdens for operators and Member States. The main legal issues identified behind those challenges are: unclear or unsuitable social rules, divergent application of the rules, inconsistent and ineffective enforcement and poor administrative cooperation between the Member States.
As regards the draft policy measures, there was strong support from all stakeholders for strengthening enforcement and cooperation between enforcement bodies, although some national enforcement authorities raised concerns about potential additional enforcement costs. In particular, measures to harmonise national risk rating systems and grant real-time access to the data in risk rating systems were greatly supported by the national authorities and EU level enforcement organisations (with more than 70% support).
The stakeholders were divided in their views on draft measures on posting conditions in road transport, EU-13 Member States and operators supported the measure with reservations (a time threshold should not be too low), whilst trade unions considered the measure detrimental to drivers. EU-15 Member States and operators had mixed views. The measure on reducing administrative burdens when applying the posting rules in road transport was favoured by a majority of all stakeholder groups, except trade unions.
• Collection and use of expertise
External contractors assisted the Commission with a support study for the ex-post evaluation 11 and a separate support study for the impact assessment, which was completed in May 2017.
• Impact assessment
The initiative is supported by an impact assessment, which has received a positive opinion with recommendations from the Regulatory Scrutiny Board. All the Board's main comments were addressed in the revised version of the impact assessment (see Annex 1 for an overview).
Four policy options were considered. The first three are cumulative in terms of increasing the level of regulatory intervention and expected impacts, whilst the fourth was horizontal and its measures could be combined with any of the first three options.
The first policy option focused on clarifying the legal framework and increasing cooperation between enforcement authorities. The second focused on strengthening enforcement and improving working patterns for workers. The third proposed substantive changes in the rules, in particular banning performance based pay. The fourth comprised sector specific criteria and specific enforcement measures for the posting of workers in the road transport sector. It included variants based on time thresholds: variant (a) - 3 days, (b) - 5 days, (c) - 7 days and (d) – 9 days as a total per calendar month spent in the territory of a host Member State, beyond which the host Member State's rules on minimum pay rates and annual paid holiday apply to a foreign operator.
Policy option 1 appeared to be the least effective in addressing the issue of legal uncertainty and inequality between drivers and operators, mainly due to the voluntary nature of the measures. This would add to concern about the number of national measures that drivers and operators have to cope with.
Policy option 3 appears to have some negative side-effects in terms of working conditions for drivers in passenger transport, because the measure on delayed weekly rest would lead to an increase of 20-33 % in the fatigue index and increase risks to road safety by 4 -5 %. This increased fatigue and risk would go together with a 3-5% reduction in compliance costs for operators.
Policy option 2 provides the most positive impacts in terms of improved working conditions for drivers (reducing the fatigue index by 28% and periods away from home by 43% for EU-13 drivers and by 16% for EU-15 drivers). In the same time it helps to reduce distortions of competition and improve road safety thanks to the measures making enforcement consistent and more efficient, while reducing somewhat administrative burdens for national authorities and transport undertakings.
As regards the horizontal option (PP4) on posting of workers, the compliance costs for operators are the lowest in the case of a higher threshold, due to a reduced number of trips within the scope of the minimum wage rules. On the other hand a lower time threshold would cover a broader group of drivers involved in cross-border provision of road transport services, leading to higher overall positive effects in terms of improving social and working conditions of drivers and increasing job attractiveness.
The estimated significant savings to operators result mainly from the option 4, and in particular the measures on administrative and control requirements. These savings are in the range of €785 million per year in administrative costs. Savings from the option 2 measures could not be quantified. However, they are expected to reduce infringements and hence non-compliance costs. In addition, they enable transport operations to be more efficient and provide an incentive for more frequent returns to drivers' home. They will, however, trigger slightly higher enforcement costs for national authorities (of between 1,3% and 8%), in particular as regards checks on compliance with the working time rules.
• Regulatory fitness and simplification
The proposal pursues the REFIT objective of increasing the effectiveness of legislation and reducing regulatory burdens for businesses. It does so mainly by simplifying and adaptating the rules to the specific needs of the sector and making more effective use of more uniform enforcement tools and databases. While enforcement costs for national authorities are expected to increase slightly, the increase is justified by the improvement in the working conditions of drivers and business conditions for operators, allowing savings in non-compliance costs. The proposal will also make enforcement more efficient, for example by increasing the use of risk rating systems to target controls at non–compliant operators. The proposal does not exempt micro-enterprises, because that would lead to a risk of unequal competitive conditions and unequal working conditions.
Fundamental rights
The proposal contributes to the objectives of the Charter of Fundamental Rights and in particular Article 31, which provides for the right to fair and just working conditions.
4. BUDGETARY IMPLICATIONS
The proposal will have no implications for the Union budget.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The monitoring of developments, in particular the number, types and frequency of occurrence of infringements against social rules will be done through a combination of national implementation reports and analysis of data from the EU enforcement organisations. Implementation and enforcement issues will be regularly monitored and assessed by the the Committee on Road Transport. The information on posting will be collected from the national databases, based on the A1 form – a declaration that a posted worker remains covered by the social security system of the home country.
Other developments in the market and their potential impacts on working conditions and conditions of competition will be assessed using relevant data collected as part of other initiatives, in particular the revision of the Regulation on access to the international haulage market.
• Explanatory documents
This proposal modifies two existing directives to a limited extent and lays down specific rules in relation to two other existing directives. No specific explanatory documents on the transposition deems necessary.
• Possible amendment to Directive 2002/15/EC
In line with Article 154 TFEU, which embodies the social partner organisations at European level to be consulted on issues concerning employment and social affairs set out in Article 153 of the Treaty, the Commision will launch a consultation process to seek the views of the social partners on the possible direction of Union action regarding Directive 2002/15/EC, which is part of the legal framework of social rules in road transport.
• Detailed explanation of the specific provisions of the proposal
The main elements of the proposal are:
Contents
Article 1 is amending is amending Directive 2006/22/EC as follows :
Article 1 – Subject matter
Article 1 is amended to clarify that enforcement requirements set out in this Directive apply also to controlling compliance with Directive 2002/15/EC.
Article 2 – Checking systems
Article 2(1) second paragraph is amended to require that checks carried out by Member States include checking compliance with the working time provisions set out in Directive 2002/15/EC.
Article 2(3) specifies that the minimum number of checks on compliance with the provisions of Regulation (EC) No 561/2006 includes checks on compliance with Directive 2002/15/EC.
Article 2 i requires the information submitted by the Member States to the Commission on the results of checks at the roadside and at premises to include checks on compliance with Directive 2002/15/EC.
Article 6 – Checks at the premises of undertakings
Article 6(1) specifies that serious infringements giving rise to checks at premises of road transport undertakings shall also include infringements of Directive 2002/15/EC.
Article 7 – Intracommunity liaison
Article 7(1)(d) is inserted to require designated national authorities to exchange information on the implementation of this Directive and of Directive 2002/15/EC.
Article 8 – Exchange of information
Article 8 is amended in order to expand administrative cooperation and mutual assistance between Member States. Article 8(1) is amended to specify that exchange of information between the designated national authorities also covers the implementation of Directive 2002/15/EC and Regulation (EC) No 561/2006. Article 8(1)a is inserted to set fixed deadlines within which a Member State authority must respond to requests for information from other Member States.
Article 9 – Risk rating system
Article 9 is amended to improve the consistency and effectiveness of national risk rating systems. In Article 9(1), a second paragraph is added, requiring the Commission to establish a uniform formula for calculating the risk rating of transport undertakings; it also specifies the criteria to be taken into account when establishing such a formula, including the use of the smart tachograph. Article 9(2) is amended to encourage Member States to discuss rules for carrying out additional checks at the premises of road transport undertakings with a high risk rating. Article 9 i is added to specify that data in the risk rating system must be made available to control authorities. Article 9(5) is added to require Member States to make the information in the national risk rating system available to other Member States on request.
Article 11(3) is added to require the Commission to establish a common approach to recording and controlling periods of other work than driving when a driver is away from a vehicle and hence could not make the necessary records in the tachograph.
Part A point (6) is added to extend the scope of roadside checks to cover checks on compliance with the weekly working time limits. Part B point i is added to extend the scope of checks at premises by including checks on weekly working time, breaks and night work provisions set out in Directive 2002/15/EC.
Specific rules on posting in the road transport sector prevailing over certain provisions of Directive 96/71/EC and Directive 2014/67/EU
Article 2, Paragraph 1
Article 2, paragraph 1 explains the objectives of the rules laying down specific rule son posting in the road transport sector prevailing over relevant provisions in Directives 96/71/EC and Directive 2014/67/EU.
Article 2, paragraph 2 specifies the minimum period of posting below which the host Member States' rules on minimum rates of pay and on paid annual leave do not apply to international road transport operations. This time threshold does not apply to cabotage since the entire transport operation is taking place in a host Member State. As a consequence the minimum rate of pay and the minimum annual paid holidays of the host Member State should apply to cabotage irrespective of the frequency and duration of the operations carried out by a driver. Paragraph 3 further explains the method of calculation of such periods of posting.
Article 3, paragraph 4 and 5 lays down the specific administrative requirements and control measures for checking compliance with the provisions on posting of workers in road transport.