Explanatory Memorandum to COM(2020)176 - Temporary measures in view of COVID-19 on the validity of certificates, licences and authorisations and postponing checks and training in areas of transport legislation - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2020)176 - Temporary measures in view of COVID-19 on the validity of certificates, licences and authorisations and postponing checks ... |
|---|---|
| source | COM(2020)176  |
| date | 29-04-2020 |
1. CONTEXTOFTHE PROPOSAL
• Reasons for and objectives of the proposal
The objective of this draft Regulation is to lay down specific and temporary measures applicable to the renewal and extension of the period of validity of certain certificates, licences and authorisations and the postponement of certain periodic checks and training in response to the extraordinary circumstances caused by the COVID-19 outbreak in the area of road, rail and inland waterways transport and maritime security.
The COVID-19 outbreak and the associated public health crisis presents an unprecedented challenge to the Member States and is a high burden for national authorities, EU citizens, and economic operators, including in particular transport sector. The COVID-19 crisis has created extraordinary circumstances that affect the normal activities of the competent authorities in the Member States and the work of transport undertakings as regards the administrative formalities to be carried out in different transport sectors. Those circumstances could not reasonably have been anticipated at the time of adoption of such Union legislation.
Due to public measures that have become necessary in view of the COVID-19 outbreak, the transport operators and other persons concerned are in many cases not able to complete the necessary formalities or procedures to comply with certain provisions of Union law related to the renewal, extension or continued validity of certificates, licences or authorisations. In addition, and for the same reasons, the competent authorities of the Member States may be unable to comply with the obligations established by Union law and to ensure relevant requests introduced by the transport operators are dealt with before the expiry of the applicable deadlines.
This is the case, for instance, with driving licences, roadworthiness tests for motor vehicles and their trailers, Community licences and driver attestations for the provisions of road haulage services, rail single safety certificates or authorisations, boatmasters’ certificates or port security assessments etc. It is most likely that those certificates, licences, authorisations which, in accordance with Union law, would expire between 1 March 2020 and 31 August 2020 could not be renewed in due time.
In order to ensure the smooth functioning of the internal market, a high level of transport safety, to provide legal certainty, and to avoid potential market disruption, it is necessary to adopt temporary provisions extending the validity of those certificates, licences or authorisations that would expire between 1 March 2020 and 31 August 2020 and ensuring that they remain valid during a reasonable period of time during and after the COVID-19 outbreak.
Likewise, time limits for relevant formalities should be extended and the validity of licences, certificates and similar documents should be maintained accordingly. Where relevant, alternative means intended to enable proper controls should be allowed and made mandatory. This is the case for example in the area of tachographs, in case driver cards expire and the issuance of a new card is not feasible.
In addition, it is possible that due to measures taken by the Member State concerned, intended to prevent or contain the spread of COVID-19, the renewal of the certificates, licences or authorisations remains impracticable beyond the timeframe referred to in one or the other relevant provision of in this Regulation. Where, upon a request submitted by the Member State concerned in such case, the Commission finds that the circumstances so warrant the Commission shall authorise the Member State concerned to apply an extension of the relevant
period or periods. Such extension should be limited to the period during which the difficulty to renew the certificates, licences or authorisations is likely to persist in that Member State.
• Consistency with existing policy provisions in the policy area
The legislation concerned by this Regulation does not contain explicit provisions, which would allow extending the validity of certificates, authorisations or licences in situations such as those created by the COVID-19 crisis. It is therefore necessary to adopt relevant provisions in order to take into account the effects of the current crisis and to provide legal certainty to individuals and economic operators, as well as to the Member States’ authorities.
• Consistency with other Union policies
The effective functioning of the internal market in transport and related services depends on the continuous provision of transport services by the operators. The negative consequences of the current crisis could, due to the impossibility for undertakings to fulfil the applicable requirements, compromise the conduct of their activity. It could also result in a shortage of staff available for such activity, for lack of the necessary valid documents allowing them to exercise their profession legally. The provisions of the Regulation proposed herewith address this major concern by ensuring legal certainty and allowing the exercise of the professions in transport.
2. LEGALBASIS, SUBSIDIARITYAND PROPORTIONALITY
• Legal basis
The proposal is based on Article 91 and Article 100(2) of the Treaty on the Functioning of the European Union.
• Subsidiarity (for non-exclusive competence)
According to the principle of subsidiarity, Union action may only be taken if the envisaged aims cannot be achieved by Member States alone. The issues giving rise to the present proposal are linked to the terms of Union law and can threfore be remedied only through provisions of Union law, i.e. in form of temporary derogations.
• Proportionality
This Union action is necessary to achieve the objective of the proper operation of the mechanisms provided for by the relevant pieces of Union law, taking into account the magnitude and gravity of the current COVID-19 outbreak. The proposed Regulation contains targeted temporary measures, which are strictly linked to the current COVID-19 outbreak and limited to what is necessary to ensure legal certainty, transport safety and the smooth functioning of the internal market.
• Choice of the instrument
This proposal concerns specific provisions that affect the application of several Directives and Regulations. The provisions of the act proposed should apply immediately and be directly applicable in order to guarantee legal certainty without delay, for the transport operators and other persons concerned, as well as the Member States’ authorities. The validity of relevant certificates, authorisations and licences, as well as the obligation to undergo periodic checks, training or examinations should be therefore prolonged ex lege, even where the relevant matters are governed by a Directive. This legislative act should therefore take the form of a Regulation that is directly applicable and does not require transposition into national law.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER
ANDIMPACTASSESSMENTS
Stakeholder
consultations
Given the urgency of the matter, formal stakeholder consultation has not been carried out. However, both Member States authorities and stakeholders have called upon the Commission to adopt a proposal for appropriate measures, and several of them have expressed concerns about the fragmentation that could result without the Union action. In fact, several Member States have already adopted, or announced imminent adoption, of national measures extending the validity of certificates and licences. Transport associations raised concerns about such uncoordinated national initiatives.
Collection
and use of expertise
As
explained, the proper collection of expertise was not possible due to the urgency of the situation.
• Impact assessment
Given the urgency of the situation, no impact assessment has been carried out. This proposal does not alter the principles and mechanisms of the Union legislation concerned and does not impose new obligations on the concerned parties. It primarily aims at providing, for exceptional reasons in the context of the current COVID-19 pandemic, extensions of the validity of certificates, licences or authorisations and of certain time limits, for a short period of time.
• Fundamental rights
4. BUDGETARYIMPLICATIONS
5. OTHERELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The measure does not include any specific monitoring or reporting arrangements. However, given the remaining uncertainty about the further developments regarding COVID-19, and in particular possible occurrence of subsequent waves of infections and the potential reintroduction of lockdowns, as well as the need to take account of situations individual to the different Member States, the Commission should be empowered, following a request submitted by any Member State, to authorise the application of additional time periods. Similarly, to what is provided for in Article 14 of Regulation (EC) No 561/20061, the terms of the procedure are simple and thus allow swift adoption of any necessary decisions.
Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85 (OJ L 102, 11.4.2006, p.
1).
Detailed
explanation of the specific provisions of the proposal
– Directive 2003/59/EC of the European Parliament and of the Council of 15 July
2003 on the initial qualification and periodic training of drivers of certain road vehicles for the carriage of goods or passengers, amending Council Regulation (EEC) No 3820/85 and Council Directive 91/439/EEC and repealing Council Directive 76/914/EEC2.
Directive 2003/59/EC lays down the initial qualification and periodic training requirements for professional drivers of trucks and buses with the objective to ensure safety on European roads. The purpose of the Directive is to set harmonised minimum competence standards throughout the Union. The Directive requires drivers to follow initial training and then periodic training every five years. Due to the current COVID-19 outbreak, the drivers subject to the training obligation may not be able to comply with it or they may not be able to renew the documents that prove the periodic training obligation has been complied with. It is therefore necessary to extend the validity of the certificates of professional competence (CPCs), of the marking of harmonised Union code ‘95’ made either on the driving licence or on the driver qualification card, based on such CPCs or the driver qualification card which, in accordance with these provisions, would expire between 1 March 2020 and 31 August 2020. The validity of these documents should be deemed to be extended for a period of six months and they should remain valid accordingly in order to ensure the continuity of road transport.
– Directive 2006/126/EC of the European Parliament and of the Council of 20
December 2006 on driving licences (Recast)3.
Directive 2006/126/EC provides for the mutual recognition of the driving licences issued by Member States based on a Union model driving licence. It lays down a series of minimum requirements for these driving licences in order to improve road safety, to facilitate the freedom of movement for citizens moving inside the Union and to reduce the possibility of fraud. The Directive has therefore introduced harmonised validity periods for all driving licence categories. Due to the current COVID-19 outbreak, driving licence holders may not be able to renew, or exchange, their driving licence. It is therefore necessary that driving licences which, in accordance with these provisions, would otherwise expire between 1 March 2020 and 31 August 2020 should be deemed to be extended for a period of six months in order to ensure the continuity of mobility by road.
– Regulation (EU) No 165/2014 of the European Parliament and of the Council of
4 February 2014 on tachographs in road transport, repealing Council
Regulation (EEC) No 3821/85 on recording equipment in road transport and
amending Regulation (EC) No 561/2006 of the European Parliament and of the
Council on the harmonisation of certain social legislation relating to road transport4.
Compliance with the rules on driving time, working time and rest periods is essential to preserving the principles of road safety and fair competition in the internal road transport market. Tachographs and driver cards record the information necessary to assess compliance with those rules. According to Article 23 of Regulation (EU) No 165/2014 (“Tachograph Regulation”), tachographs shall be subject to inspection by approved workshops every two years in order to assess the correct functioning, calibration and security features of the device
OJ L 226, 10.9.2003, p. 4. OJ L 403, 30.12.2006, p. 18. OJ L 60, 28.2.2014, p. 1.
2
3
4
installed in the vehicle. Driver cards are personal and are issued by the national authorities for a period of five years. When a driver card expires, it must be renewed with a new card, in compliance with Article 28 of the Tachograph Regulation. According to Article 29 of the Tachograph Regulation if the driver card is damaged, malfunctions or is lost or stolen, the driver shall, within seven calendar days, apply for its replacement to the competent authorities of the Member State of his normal residence. Those authorities shall supply a replacement card within eight working days after their receipt of a detailed request to that effect. Member States have informed the Commission of difficulties in performing the periodical inspections of the tachographs and renewing the driver cards according to the deadlines provided for in the Union legislation. These difficulties are due to the current exceptional circumstances linked to the COVID-19 outbreak. In such circumstances, the Member States should be allowed to authorise, for a limited period of time, the continued circulation of vehicles equipped with tachographs whose inspection has not been carried out when it was due.
Additionally, as regards the expired driver cards, drivers who have requested a new card according to Article 28 of the Tachograph Regulation should be put in a position and obliged to resort to viable alternatives to keep a record of their activity, until the card-issuing authorities have issued a new card for the driver. The procedure foreseen in Article 35(2) of the Tachograph Regulation for damaged, malfunctioning, lost or stolen driver cards, should apply mutatis mutandis to drivers whose card expired. This approach will ensure the appropriate balance between the necessary continuity of transport and the need not to put road safety at risk.
– Directive 2014/45/EU of the European Parliament and of the Council of 3 April
2014 on periodic roadworthiness tests for motor vehicles and their trailers and repealing Directive 2009/40/EC5.
Directive 2014/45/EU defines the harmonised minimum requirements for periodic roadworthiness testing. These include notably the frequency of testing and as a consequence the validity of the roadworthiness certificates. Due to the current exceptional circumstances linked to the COVID-19 outbreak, these activities may be rendered impracticable. It is therefore necessary that roadworthiness tests due to be carried out between 1 March 2020 and 31 August 2020 could be carried out at a later date, but not later than six months after the original time limit and that the certificates concerned should remain valid accordingly.
– Regulation (EC) No 1071/2009 of the European Parliament and of the Council
of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC6.
Regulation (EC) No 1071/2009 lays down common rules concerning the conditions to be complied with to pursue the occupation of road transport operator. Under the current circumstances, more transport undertakings are likely to be at risk of not fulfilling the financial standing criterion, given the reduced level of activity and, consequently of turnover, which can lead to a reduction in their level of own resources. As a result, operators which are otherwise structurally viable could risk losing their operating licence, implying the end of their transport activity. In accordance with Article 13(1)(c) Regulation (EC) No 1071/2009, when transport undertakings no longer meet the requirement of financial standing, the competent authorities may set a time limit not exceeding six months in order to demonstrate that that requirement will again be satisfied on a permanent basis. However, given the current
5 OJ L 127, 29.4.2014, p. 51.
6 OJ L 300, 14.11.2009, p. 51.
lack of activity and revenues, this maximum period appears too short, and should thus be extended to twelve months, for assessments made and decisions taken from 1 March 2020 until 31 December 2020.
– Regulation (EC) No 1072/2009 of the European Parliament and of the Council
of 21 October 2009 on common rules for access to the international road haulage market7.
– Regulation (EC) No 1073/2009 of the European Parliament and of the Council
of 21 October 2009 on common rules for access to the international market for coach and bus services, and amending Regulation (EC) No 561/20068.
The international carriage of goods by road and international carriage of passengers by coach and bus are subject to the possession of a Community licence by the professional carriers providing those services, under the conditions provided for in Article 6 of Regulation (EC) No 1072/2009 for the carriage of goods and Article 4 of Regulation No 1073/2009 for carriage of passengers.
The Community licence attests that the transport operators are established in the Union and comply with the necessary requirements to provide international transport services. Additionally, in the case of international carriage of goods, when the driver is a national of a third country, this driver should be in possession of a driver attestation in accordance with the provisions laid down in Chapter II of Regulation No 1072/2009. It allows Member States to check effectively whether drivers from third countries are lawfully employed or at the disposal of the professional carrier responsible for a given transport operation.
The provision of regular services by bus and coach is subject to authorisation in accordance with the provisions laid down in Chapter III of Regulation No 1073/2009. The procedure for their renewal is also subject to the same procedure, mutatis mutandis. The authorisation is subject to a number of conditions to ensure the suitability of a particular carrier to provide a specific regular service. Community licence and authorisation for regular services are interdependent in the sense that, to issue the latter, it is necessary to be in possession of a Community licence. Community licences, driver attestations and authorisations for regular services by bus and coach are issued by the competent authorities of the Member States at the request of the carriers for periods of up to ten years (Community licence) and five years (driver attestation and authorisation) that can be renewed. Their renewal is subject to the verification that the conditions under which they were issued are still satisfied. Member States have informed the Commission about difficulties to renew these licences, attestations and authorisations within the time limits provided for in the Union legislation or to carry out the necessary verifications before renewing them. This is due to the current exceptional circumstances linked to the COVID-19 outbreak. On the other hand, it is essential to ensure continuity of transport services. It is therefore necessary to extend the validity of the above Community licences, attestations and authorisations for a limited period of time.
– Directive (EU) 2016/798 of the European Parliament and of the Council of 11
May 2016 on railway safety9.
– Directive 2004/49/EC of the European Parliament and of the Council of 29 April
2004 on safety on the Community's railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on
OJ L 300, 14.11.2009, p. 72. OJ L 300, 14.11.2009, p. 88. OJ L 138, 26.5.2016, p. 102.
8
9
the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification (Railway Safety
Directive)10.
Directive 2004/49/EC and Directive (EU) 2016/798 regulate safety certification and authorisation in the Union. Directive 2004/49/EC is repealed by Directive (EU) 2016/798 with effect from 16 June 2020. Until this date, it still applies to those Member States that have extended the transposition period of Directive (EU) 2016/798 until the same date, in accordance with Article 33 (2) of the latter Directive.
In accordance with Article 10(13) of Directive (EU) 2016/798, a railway undertaking has to possess a single safety certificate issued either by the European Union Agency for Railways or by a national safety authority, to be renewed upon application at intervals not exceeding five years. In accordance with Article 12(2) of Directive (EU) 2016/798, the safety authorisation of infrastructure managers is valid for five years.
In accordance with Article 10(5) of Directive 2004/49/EC, a safety certificate is to be renewed upon application by the railway undertaking at intervals not exceeding five years. In accordance with Article 11(2) of Directive 2004/49/EC, the safety authorisation is to be renewed upon application of infrastructure manager at intervals not exceeding five years.
Due to the extraordinary situation caused by the COVID-19 outbreak national authorities, railway undertakings and infrastructure managers face difficulties when it comes to the renewal of (single) safety certificates and of safety authorisations or, in view of a forthcoming expiry of existing safety authorisations, the issuance of such authorisations for a subsequent period. It is therefore necessary to extend the time limit of renewal and validity of these documents to ensure that the operation of the railway undertakings and the infrastructure managers is not undermined. An extension of six months should address the difficulties for national safety authorities to conduct on-site inspections and complete other administrative work required.
– Directive 2007/59/EC of the European Parliament and of the Council of
23 October 2007 on the certification of train drivers operating locomotives and trains on the railway system in the Community11.
In accordance with Article 14(5) of Directive 2007/59/EC, a licence shall be valid for ten years, subject to Article 16(1). Due to the extraordinary situation caused by the COVID-19 outbreak, the competent authorities face difficulties with renewing licences within the prescribed conditions. Licences due to be renewed within the period during which such renewal is impracticable should remain valid for an additional six months’ period. Similarly, train drivers should be granted an additional six months to complete periodic checks.
– Directive 2012/34/EU of the European Parliament and of the Council of
21 November 2012 establishing a single European railway area12.
Article 24(3) of Directive 2012/34/EU specifies that in case where a licence is suspended or revoked on grounds of non-compliance with the requirement for financial fitness, the licensing authority may grant a temporary licence pending the reorganisation of the railway
10 OJ L 164, 30.4.2004, p. 44.
11 OJ L 315, 3.12.2007, p. 51.
12 OJ L 343, 14.12.2012, p. 32.
undertaking, provided that safety is not jeopardised. However, the maximum period of validity of a temporary licence is six months. Due to the extraordinary circumstances caused by the COVID-19 outbreak, authorities have serious difficulties in taking the relevant decisions, namely on the issuance of new licences for the period after the expiry of a temporary licence. Therefore, the validity of the temporary licences concerned, issued or expiring from 1 March 2020 until 30 August 2020, should be prolonged by six months.
Article 25(2) of Directive 2012/34/EU requires the licensing authority to decide on the application for the issuance of a licence within three months. However, for the reasons already mentioned, the licensing authorities are not in a position to act timely. It is thus proposed to grant those authorities an extension of six months in this respect, for applications submitted between 12 January 2020 and 31 August 2020.
Pursuant to Directive 2012/34/EU, licensing authorities may suspend or revoke the licence of any railway undertaking, which may not be able to fulfil the requirements of financial fitness. If that is the case, the authorities may grant a temporary licence to such railway undertakings following the licence revocation or the suspension. A temporary licence is intended to allow the railway undertaking to restructure and pursue its activity, provided safety is not compromised. However, experience has shown that it also sends a very negative signal to the market about the ability of a railway undertaking to survive, which in turn aggravates its financial problems, in particular in terms of cash flow. It is likely that many railway undertakings, which were financially stable before the crisis, will end up in a situation in which their licence would need to be suspended or revoked, given their financial situation. In the context of the current crisis, this may be unwarranted, in particular in economic and safety terms. Moreover, railway undertakings might need more time to financially stabilise in the period following the containment of COVID-19 outbreak.
It is therefore proposed to temporarily permit Member States to maintain an existing licence unaltered, i.e. abstain from revoking or suspending it and from issuing a temporary licence, provided that safety is not at risk. Member States would remain able to monitor the financial fitness of the railway undertakings in question, notably in order to protect passengers from undue safety risks. As a result, railway undertakings would not be subject to undue constraints and would find better conditions to financially recover.
– Council Directive 96/50/EC of 23 July 1996 on the harmonization of the
conditions for obtaining national boatmasters' certificates for the carriage of goods and passengers by inland waterway in the Community13.
Article 6(2) of Directive 96/50/EC requires the holders of the certificate of a boatmaster to undergo a medical examination after reaching 65 years in the following three months and subsequently every year. However, as the access to the medical service is limited for non-emergency examinations, due to the measures taken in relation to the COVID-19 outbreak, holders of boatmasters’ certificates may not be able to undergo the medical examinations due within period concerned by those measures. Therefore, for cases in which the time limit for undergoing medical examinations would expire between 1 March 2020 and 31 August 2020, that time limit should be extended by six months in each of the cases concerned.
OJ L 235, 17.9.1996, p. 31.
3
– Directive (EU) 2016/1629 of the European Parliament and of the Council of 14
September 2016 laying down technical requirements for inland waterway vessels, amending Directive 2009/100/EC and repealing Directive 2006/87/EC14.
The period of validity of Union inland navigation certificates is limited in accordance with Article 10 of Directive (EU) 2016/1629. Moreover, Article 28 of Directive (EU) 2016/1629 provides for the continued validity of documents falling within the scope of that Directive and issued by the competent authorities of the Member States under the previously applicable Directive 2006/87/EC of the European Parliament and of the Council of 12 December 2006 laying down technical requirements for inland waterway vessels and repealing Council Directive 82/714/EEC15.
The measures taken in view of the COVID-19 outbreak may make it impractical and sometimes impossible for the competent authorities to carry out the technical inspection in order to extend the validity of relevant certificates or, in case of documents referred to in Article 28 of Directive (EU) 2016/1629, to replace them.
Therefore, in the interests of legal certainty and in order to allow the continued operation of relevant inland waterways vessels, it is appropriate to extend by a period of six months the validity of Union inland navigation certificates as well as documents falling within the scope of Article 28 of Directive (EU) 2016/1629, which would otherwise expire between 1 March 2020 and 31 August 2020.
– Regulation (EC) No 725/2004 of the European Parliament and of the Council of
31 March 2004 on enhancing ship and port facility security16.
– Directive 2005/65/EC of the European Parliament and of the Council of 26
October 2005 on enhancing port security17.
The COVID-19 outbreak has made the conduct of maritime security inspections and surveys difficult in this period, as they require the physical presence of inspectors in port, port facilities and ships. This often means that it is impracticable to renew the certificates, assessments and plans required by Union maritime security legislation, under the set deadlines. Therefore, it is necessary to provide flexible and pragmatic solutions while not compromising security, by extending the validity of these documents by a reasonable amount of time, as necessary. This also applies to the periodicity of maritime security drills and exercises, which may also be difficult to carry out during respective national lockdowns.
OJ L 252, 16.9.2016, p.118.
OJ L 389, 30.12.2006, p. 1.
OJ L 129, 29.4.2004, p. 6.
OJ L 310, 25.11.2005, p. 28.