Explanatory Memorandum to COM(2017)277 - Amendment of Regulations 561/2006 and 165/2014 as regards maximum daily and weekly driving times, minimum breaks, daily and weekly rest periods and positioning by tachograph - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2017)277 - Amendment of Regulations 561/2006 and 165/2014 as regards maximum daily and weekly driving times, minimum breaks, daily and ... |
|---|---|
| source | COM(2017)277  |
| date | 31-05-2017 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
The driving and resting times of drivers have been regulated under EU law since 1969. Today, Regulation (EC) No 561/2006 1 (the Driving Time Regulation) establishes minimum requirements on maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods. It also requires use of a tachograph as the main tool for checking compliance with those requirements. Successive regulations have been adopted to adapt tachographs to technological developments, the latest being Regulation (EU) 165/2014 on tachographs in road transport (the Tachograph Regulation). This introduced the smart tachograph connected to a positioning service based on a satellite navigation system.
Both the Driving Time and the Tachograph Regulations are part of a wider effort to improve the working conditions of drivers, ensure fair competition between operators and improve the road safety of European roads. Tighter requirements for tachograph use have gradually contributed to more efficient and consistent enforcement throughout the EU.
An ex-post evaluation of the social legislation in road transport and its enforcement, which was carried out in 2015-2017 2 as part of the Regulatory Fitness Programme (REFIT), concluded that the Driving Time Regulation has been only partly effective in improving drivers' working conditions and ensuring fair competition between operators. Road safety had improved over that period, but of course these improvements cannot be assigned solely to that Regulation.
The main difficulties encountered are linked to the shortcomings of the rules themselves, but also insufficient enforcement and their inability to address the emerging social and market challenges faced by the sector. The objective of this proposal, which is a REFIT initiative 3 , is to rectify the identified shortcomings and to help improve the working and business conditions in the sector. This will be achieved by clarifying and updating certain provisions and by further upgrading the use of current and future tachographs to ensure more cost-effective enforcement.
• Consistency with other envisaged initiatives in the road transport sector
This proposal is part of a broader ongoing review of the Union road transport legislation. It is closely linked with the initiative to improve the enforcement of the driving and resting time rules and to establish sector-specific criteria for posting of workers in road transport. It is also closely linked 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 (Regulation (EC) No 1072/2009) and access to the international passenger market (Regulation (EC) No 1073/2009).
Social and market rules constitute 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 those 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 on 'jobs, growth and investment'. It is consistent with actions aimed at combatting social unfairness and unfair competition and at creating a social framework for new employment opportunities and fair business conditions.
It fits with the objectives of the Social Agenda of the Commission as one of its aims is to ensure decent working conditions and appropriate social protection, 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 provides in particular for a right to daily and weekly rest periods. The provisions contained in the present proposal concerning weekly rest are meant to enhance flexibility for operators while allowing workers to retain adequate rest periods and favouring the possibility to have this rest at home or in an adequate accommodation.
The proposal contributes to the REFIT Programme by clarifying and adapting certain social provisions and making enforcement of them more cost-effective.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
Contents
- This proposal amends Regulations (EC) No 561/2006 and (EU) 165/2014 and is therefore based on the same legal basis, namely Article 91(1) of the Treaty on the Functioning of the EU (TFEU)
- 1) inadequate working conditions for drivers
- 2) distortions of competition between transport operators; and
- Regulation (EC) No 561/2006
- Article 4
- Article 6
- Article 7
- Article 8
- Article 9
- Article 12
- Article 14
- Article 15
- Article 19
- Article 22
- Article 25
- Regulation (EU) 165/2014
- Article 34
This proposal amends Regulations (EC) No 561/2006 and (EU) 165/2014 and is therefore based on the same legal basis, namely Article 91(1) of the Treaty on the Functioning of the EU (TFEU)
• Subsidiarity
Under Article 4(2)(g) TFEU, the Union shares competence with Member States to regulate in the field of transport. However, existing rules can only be amended by the Union legislator.
Shortcomings in the current legislation mean that Member States implement and enforce the EU social rules differently. Commission guidelines or self-regulation by Member States would not be adequate to ensure that the social rules in road transport are consistently applied and enforced throughout the Union. An action at the Union level is therefore justified.
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 Commission 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 complements provisions of Regulation (EC) No 561/2006.
• 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 indicated in Section 7.2 of the impact assessment, the proposal implements the policy option considered the most suitable and proportionate solution. This solution provides a balance between improving working and resting conditions for drivers while enabling the operators to organise transport operations as efficiently as possible, and enforcing the existing rules effectively and consistently across borders.
The proposal focuses on simplifying and clarifying existing rules and adjusting certain rules to the needs of the sector. This will make the rules easier to comply with and to enforce in a coherent manner throughout the Union. The proposal will reduce administrative burden for operators and ensure that the requirements for administrative cooperation and mutual assistance between Member States are proportionate to the problems identified. The impact assessment concluded that the envisaged policy measures will have no disproportionate impact on SMEs.
• Choice of the instrument
As the proposal introduces a limited number of modifications to two interrelated regulations, the instrument chosen is also a regulation. Given the limited number of changes proposed, it does not appear necessary to recast the two regulations.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
The Driving Time Regulation was subject to a comprehensive ex-post REFIT evaluation in 2015-2017 4 covering also Directive 2002/15/EC on the organisation of the working time and Directive 2006/22/EC on enforcement of social legislation. It was supported by an external support study.
The main issues, pertaining specifically to the Driving Time Regulation, were:
- divergent interpretations and enforcement of the provisions on the regular weekly rest, leading to uncoordinated national measures and unequal treatment of drivers and operators;
- persisting abuses of the rules on driving times, breaks and rest periods due to a lack of flexibility in their application, in particular in unforeseen circumstances;
- lack of clarity of the notion of non-commercial carriage and operations for private purposes, leading to divergent interpretations and unequal treatment of drivers and operators;
- provision on breaks not suitable for multimanning (driving in a team), leading to divergent enforcement practices;
- poor administrative cooperation and mutual assistance between the Member States, hindering efficient and consistent cross-border enforcement.
These issues have adverse effects on working and competition conditions and indirectly hamper further improvements in road safety.
The Tachograph Regulation was not part of this REFIT ex-post evaluation. However, the evaluation revealed that one shortcoming of the enforcement system is in the uneven and inefficient use of control tools and data exchange systems, including tachographs. The functionalities of the current tachograph system could be better used until smart tachographs are installed and used more widely.
• Stakeholder consultations
Extensive stakeholder consultations were performed 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).
The consultation process involved gathering opinions and collecting data. All the relevant stakeholder groups were asked to contribute to the consultation process: national transport ministries, national enforcement authorities, associations representing road transport freight and passenger transport 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 was attended by some 350 participants, mainly: decision makers, experts in transport and social partners.;
- Dedicated seminars at the end of 2015 which gathered industry stakeholders, representatives of Member States and the the European Social Partners. The discussions focused on the functioning of the social and internal market legislation in road transport ;
- A Road Transport Conference on 19 April 2016. One of the workshops was dedicated to the internal market and the social aspects of road transport. It involved around 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 gather the views of the national transport ministries (the focus was on the implementation and interpretation of the rules), enforcement authorities (the focus was on enforcement practices, enforcement costs and benefits), undertakings (the focus was on the impact of the legislation on the operators in the market), trade unions (the focus was on the impact of the legislation on drivers) and other stakeholders such as industry associations (the focus was on cross-cutting views on the effects of the legislation). In total 1 441 responses were received (of which 1 269 were from road transport undertakings).
- Interviews with 90 stakeholders (of which 37 were with drivers) to gather insights on their experiences of how national bodies enforce EU road transport legislation, how effective this enforcemet is, and on any challenges with compliance.
- A public consultation 5 between 5 September and 11 December 2016, aimed at confirming the problems identified in the ex-post evaluation and identifying potential solutions to them. Of the 1 378 responses received 1 209 were from drivers, operators, shippers, forwarders and citizens and 169 from national authorities, enforcement bodies, workers' organisations and industry associations;
- A SME panel survey between 4 November 2016 and 4 January 2017. 109 respondents provided their views on the objectives of the revision of the legal framework and on potential solutions;
- An on-line survey of drivers (345 responses were received, providing views on potential measures. However, these views were not fully representative, as 140 replies were from the Netherlands and 127 from the UK).
- The Commission also launched a survey of the national authorities and national enforcement bodies (41 responses received from 27 EU Member States plus Norway and Switzerland), and operators' survey (73 responses, however again not fully representative as 58 replies were from Hungary); and
- 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 in the road transport sector were also regularly informed and consulted during several bilateral meetings with the Commission and at regular meetings of the Sectoral Social Dialogue Committee on Road Transport and of the Social Partners' working group.
The consultation activities confirmed that main problems are:
3) regulatory burdens for operators and Member States.
They also identified the main legal issues behind those challenges, i.e. unclear or unsuitable social rules, differing interpretations of the rules, inconsistent and ineffective enforcement and poor administrative cooperation between the Member States.
As regards the draft policy measures, all stakeholders strongly supported strengthening enforcement and cooperation between enforcement bodies, although some national enforcement authorities raised concerns about potential additional enforcement costs.
The issue of adequate rest facilities when taking a regular weekly rest was highlighted by the trade unions, national authorities, drivers, operators and associations representing operators.
There were mixed reactions regarding the draft measures on the calculation of the average weekly rest and on allowing further flexibility when applying the driving and rest time rules to allow the drivers to reach home to take their regular weekly rest. Operators and drivers were in favour of these measures, while the trade unions were not supportive and enforcers raised concerns about effectively monitoring compliance.
• Collection and use of expertise
External contractors assisted the Commission by producing a support study for the ex-post evaluation in June 2016 6 , and a separate support study for the impact assessment, which was completed in May 2017.
• Impact assessment
This proposal 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 to the impact assessment report).
The impact assessment considered four policy options. The first three are cumulative in terms of increasing the level of regulatory intervention and expected impacts, while option four was horizontal and its measures could be combined with any of the three first options.
The first policy option focused on clarifying the legal framework and improving cooperation between enforcement authorities. The second focused on strengthening enforcement. The third policy package proposed substantive changes in the rules, in particular on performance-based pay and derogations for domestic and international passenger transport by coach. The fourth policy option established sector-specific criteria for posting workers in road transport and provides for specific enforcement measures. It included three variants based on time thresholds.
Policy option 1 appeared to be the least effective in addressing the legal uncertainty and inequality between drivers and operators. This was mainly because the measures would be voluntary and Member States could choose whether or not to introduce them. This voluntary approach would add to the concern of proliferation of national measures with which drivers and operators would have to cope.
Policy option 3 may have some negative side-effects in terms of the working conditions of drivers in passenger transport. This is because the measure on delayed weekly rest could increase the fatigue index by 20- 33 % and increase risks to road safety by 4 -5 %. These increased fatigue and risk indexes would go together with a 3-5% reduction in compliance costs for operators.
The preferred option is a combination of policy option 2 and policy option 4. The impacts of policy option 4 strengthen the expected effects of policy option 2 by improving the working and resting conditions of drivers (decrease in fatigue index by 28% and in periods away from home by 43% for EU-13 drivers and by 16% for EU-15 drivers). Combining policy options 2 and 4 will also lead to synergy gains from more efficient monitoring of the rules on posting, thereby saving costs for operators.
Combining policy options 2 and 4 is, overall, the most effective way to address the problems identified in the impact assessment. It is estimated that policy option 4 will bring savings for operators that provide cross-border road transport services, of around EUR 785 million per year as regards administrative costs. The savings from the measures in option 2 could not be quantified. However, it is expected that they will reduce infringements and hence decrease significant non-compliance costs. In addition, policy option 2 will allow more efficient transport operations and will provide an incentive for more frequent returns to home of the driver. Both policy options will, however, trigger slightly increased enforcement costs for national authorities (between 1,3% and 8%) in the transitional period when introducing the revised rules. Both will also increase slightly compliance costs for certain operators, because they will require them to pay accommodation for the regular weekly rest to be taken outside the vehicle (approximately EUR 50-160 per trip).
The proposal is in line with the preferred option in the impact assessment.
• Regulatory fitness and simplification
The proposal pursues the REFIT objective of increasing effectiveness of legislation and reducing regulatory burdens for businesses. It does so mainly by simplifying and adaptating the rules to the needs of the sector and by enhancing the use of digital recording equipment (tachographs) to make checks more efficient. While enforcement costs for national authorities are expected to increase slightly, this increase is justified by the improved working conditions of drivers and business conditions for operators. This will create savings in non-compliance costs. The proposal will also make enforcement more efficient, for example by improving the features of the future smart tachograph. The proposal does not exempt micro-enterprises as it 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
Developments in the number, types and frequency of infringements against social rules will be monitored through a combination of national implementation reports and analysing data from the EU enforcement organisations. The implementation and enforcement issues will be regularly monitored and assessed by the Committee on Road Transport.
Other market developments and their potential impacts on working and competition conditions will be assessed based on relevant data collected for other initiatives, in particular the revision of the Regulation on access to international haulage market (Regulation (EC) No 1072/2009) and the Regulation on access to the occupation of road haulier (Regulation (EC) No 1071/2009).
• Detailed explanation of the specific provisions of the proposal
The main elements of the proposal are:
Article 3
Article 3(h) is amended to clarify, in line with the Court of Justice ruling in case C-317/12 Lundberg, that private individuals using vehicles which would fall within the scope of Regulation (EC) No 561/2006, to carry private belongings for their own purposes, are not obliged to record their driving times and rest periods and are therefore not obliged to have or use a tachograph or a driver's card.
Article 4(r) is added to define the notion of non-commercial carriage, which is commonly used in this Regulation, because not having a uniform definition creates uncertainties and disparities in interpretation.
Article 6(5) is amended to clarify the obligation and to harmonise the practice of recording a driver’s other work than driving and periods of availability. Full records of all driver's activities, and not only driving, which is automatically recorderd by a tachograph, is important to effectively monitor a driver's working patterns, which may lead to fatigue and create risks to road safety.
A third paragraph is added to Article 7 to clarify that drivers driving in a team may take their obligatory break in a vehicle which is driven by another driver. This is already a current practice following non-binding guidance from the Commission.
Article 8 is amended to clarify and adapt the weekly rest requirements to the needs of the sector and to actual practice in arranging transport schedules, in particular as regards long distance transport operations. It aims to improve drivers' resting conditions and to facilitate enforcement, in particular checking the compensation owed to the driver for reduced weekly rest.
Article 8(6) is amended to clarify that drivers may arrange for their weekly rest periods in a more flexible manner over a period of four consecutive weeks, while ensuring that compensation for a reduced weekly rest is taken together with a regular weekly rest within three weeks. This amendment does not change current requirements on the maximum daily and weekly driving times.
Article 8(7) is amended to specify that any compensation for a reduced weekly rest must be attached to a regular weekly rest of at least 45 hours. This will make it easier to check rest taken in compensation and will allow drivers to benefit from an accumulated weekly rest.
Article 8(8)a is added to clarify that a driver is not allowed to take a weekly rest of 45 hours or more in a vehicle, and that the employer is obliged to provide a driver with adequate accommodation with appropriate sleeping and hygiene facilities if drivers are not able to take a weekly rest at a private place of their choice.
Article 8(8)b is added to further specify the obligation on transport undertakings to organise the drivers' work in such a way that they are able to return to their home for a weekly rest at least once within three consecutive weeks.
Article 9 is amended to adapt to the current practice of taking rest periods on ferry or on train. The current rules do not allow to record rest periods of 24 hours and longer taken partly on ferry or on train as reduced weekly rest. This creates unnecessary burdens for drivers and operators. The amendment, therefore, specifies that a driver accompanying a vehicle which is transported by ferry or train is also allowed to take also a reduced weekly rest on a ferry or train.
Article 12(2) is added to help a driver cope with unforeseen circumstances which delay transport operation or prevent the driver from reaching his or her home to take a weekly rest. It specifies that drivers may postpone the start of their weekly rest to reach their home provided that they comply with the daily and weekly driving time limits and with the required minimum duration of a weekly rest period.
Article 14 is amended to specify that temporary exceptions from the general rules granted by Member States in urgent cases must be appropriately justified by the exceptional circumstances and the urgency involved in addressing them.
Article 15 adds an obligation on Member States to inform the Commission about their national rules on driving times, breaks and rest periods applicable to the bus drivers exempted from the Regulation.
Article 19 is amended to specify that national penalties imposed for infringing the Regulation should be proportionate to the seriousness of the infringement, as classified in relevant Union legislation. It also adds that any changes to the national penalty system should be notified to the Commission.
Article 22 is amended to further deepen the administrative cooperation and exchange of data and information between Member States. The objective is to make the implementation of the provisions of this Regulation and cross-border enforcement more consistent and effective.
Article 22(1) is amended to specify that mutual assistance between Member States must be provided promptly, within clearly specified deadlines under Directive 2006/22/EC.
Article 22(2)(c) is added to clarify that the exchange of information also covers data on the risk rating of undertakings and other information necessary to ensure effective and efficient enforcement.
Article 22(3)a specifies that assigned bodies for intracommunity liaison must be responsible for organising the smooth exchange of information.
Article 22(3)b is added to clarify that mutual assistance should be free of charge.
Article 25(2) is amended to specify that in cases where it is necessary the Commission will adopt implementing acts to clarify any of the provisions of this Regulation. These acts should ensure uniform application and enforcement of the Regulation.
Article 8
Article 8 is amended to further improve features of smart tachographs to make it possible to more precisely position vehicles used for cross-border transport operations. This make it easier to enforce the social rules.
Article 34 adds an obligation on drivers to record in a tachograph the position of their vehicle after having crossed a border, at the earliest suitable stopping place. Doing so will make it easier to monitor compliance with the social rules. This obligation does not apply to drivers using smart tachographs which automatically record border crossings.