# EUR-Lex - 52013PC0816 - EN

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# 52013PC0816

**COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the Council's position at the first reading with a view to the adoption of a Regulation of the European Parliament and of the Council on tachographs in road transport, repealing Council Regulation (EC) No 3821/85 on recording equipment in road Transport and amending Regulation (EC) No 561/2006 of the European Parliament and the Council on the harmonisation of certain social legislation relating to road transport /* COM/2013/0816 final - 2011/0196 (COD) */**

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2011/0196 (COD)

COMMUNICATION FROM THE COMMISSION
TO THE EUROPEAN PARLIAMENT
pursuant to Article 294(6) of the Treaty on the Functioning of the European
Union
concerning the

Council's position at the first reading
with a view to the adoption of a Regulation of the European Parliament and of
the Council on tachographs in road transport, repealing Council Regulation (EC)
No 3821/85 on recording equipment in road Transport and amending Regulation
(EC) No 561/2006 of the European Parliament and the Council on the
harmonisation of certain social legislation relating to road transport

(Text with EEA relevance)

1.           Background

Date of transmission of the proposal to the European Parliament and to the Council (document COM(2011) 451 final – 2011/0196(COD): || 19/07/2011

Date of the opinion of the European Committee of Regions: || No opinion

Date of the opinion of the European Economic and Social Committee: || 07/12/2011

Date of the position of the European Parliament, first reading: || 03/07/2012

Date of adoption of the Council's political agreement in view of a Council’s position at first reading: || 29/10/2012

Date of adoption of the Council's position at first reading: || 15/11/2013 (?)

2.           Objective of the proposal from the
Commission

The Commission
submitted to the Council and the European Parliament the above-mentioned
proposal on 19 July 2011. The proposal amends Council Regulation 3821/85 of 20
December 1985 on recording equipment in road transport. This proposal also
amends Regulation 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. The Communication from the Commission - "Digital tachograph:
Roadmap for future activities" - accompanies the above-mentioned proposal
and was transmitted in parallel to the European Parliament and to the Council.

The proposal introduces a number of
technological improvements to the digital tachograph such as a satellite
positioning function (GNSS), a remote communication function for enforcement
filtering purposes and an ITS interface to make possible the use of data from
the digital tachograph in on-board computers for other purposes than the
control of driving times. This new generation of tachographs ('smart
tachographs') is foreseen to be introduced in 2018 - 2019.

The revision also improves other aspects
such as laying down new rules to improve the trustworthiness of workshops, to
exchange information between Member States on the cards issued to drivers
(TACHOnet system), to personalise the cards by merging them with the driving
licence, rules on the training of enforcers and on the harmonisation of
sanctions. Finally, it applies the same radius of 100 km for all distance-based
exemptions to the rules on driving times that Member States can introduce (in
Art. 13 of Regulation 561/2006).

The European
Data Protection Supervisor issued an opinion on the Commission's proposal on 5
October 2011. The opinion of the Economic and Social Committee was issued on 7
December 2011 and the Committee of the Regions decided not to draw up an
opinion or report.

The European Parliament's Committee on
Transport and Tourism appointed Ms Silvia-Adriana Ticău (RO, S&D) as
rapporteur. The vote in Plenary took place on 3 July 2012. See SP(2012)
449/2.

The Council reached a political agreement
on this file on 29 October 2012, under Cypriot Presidency.

3.           Comments on the position of the Council

3.1.        General comments on the
position of the Council

In general, the Commission welcomes
positively the position of the Council at first reading, as this position is in
line with the main objectives of the Commission's initial proposal, namely to
increase the security of the tachograph system (reducing fraud and the
manipulation of the tachograph), to reduce administrative costs and to improve
the efficiency of the control of the system. The Council's amendments were
introduced as a result of further analysis on the expected impact of some of
the measures proposed by the Commission, and reflect the importance attached by
Member States to the application of the most cost-efficient measures, to the
need to reinforce the protection of personal data in the Regulation and to the
clarification of the provisions on the technical and functional requirements of
the tachograph. The Council's amendments were discussed at length and were
endorsed by the Commission.

Without opposing the adoption of the final
text resulting from negotiations between the co-legislators, the Commission
will however make statements on three points on which it repeatedly voiced its
disagreement during the negotiations. These statements are attached.

3.2.        Detailed Commission
comments

3.2.1.     Nature of the legal act
(delegated acts/implementing acts)

In order to adopt the technical
specifications of the future smart tachograph, the Commission proposed that the
power to adopt acts in accordance with Article 290 of
the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of the
adaptation of Annexes I, IB and II to technical progress and the supplementing
of Annex IB with the technical specifications necessary for the automatic
recording of the location data, for enabling remote communication and for
ensuring an interface with Intelligent Transport Systems (Articles 4, 5, 6 and
38 of the Commission proposal).

As a result of negotiations with the
Parliament, the co-legislators decided to include the main technical
requirements from the above Annexes in the text of the Regulation, on the basis
of which the Commission should establish relevant detailed provisions through
implementing acts at a later stage to ensure uniform application throughout the
EU Member States. Provisions on definitions, on technical requirements and data
to be recorded, on the functions of the digital tachograph and on display and
warning signals, were therefore added to the text of the Regulation, with which
the Commission agrees. Throughout the negotiations, the Commission maintained
the necessity of use of delegated acts.

The Commission will not
oppose the adoption of the text as agreed by the co-legislators. Nevertheless,
the Commission will recall in a statement (attached) that the question of
delimitation between Articles 290 and 291 TFEU is currently under examination
by the Court of justice in the "biocides" case."

3.2.2.     Technical amendments

The Commission accepts
the amendments agreed between the Council and Parliament on the following
technical issues :

(a)
Recording of location data (Article 8)

The Commission welcomes the recording of
location points every three hours of accumulated driving time in order to
improve compliance by professional road transport drivers with the legislation
in force.

(b)
Equipment of control officers with the remote
early detection technology (Article 9)

After 15 years following the introduction of
the smart tachograph, Member States will have to equip their control
authorities to an appropriate extent with remote equipment, also taking into
account the national enforcement strategies of Member States. Until that date,
it will be optional to equip the control authorities with the remote access
technology.

(c)
Interface with Intelligent Transport Systems
(Article 10)

The Council considered it crucial to keep a
sufficient degree of flexibility so that transport undertakings remain able to
choose whether or not to connect the tachograph to external devices. Therefore,
the Council provided that tachographs may be equipped with standardised
interfaces allowing the data recorded or produced by tachograph to be used by
an external device, subject to certain conditions. In addition, the Council's
text clarifies that the access to personal data by an external device connected
to the interface can only be given after the explicit consent of the driver to
which the data relates.

The Commission accepted the above amendments as
a step in the right direction but warned the co-legislators that rendering the
ITS interface optional was significantly reducing the intention of the initial
proposal.

(d)
Inclusion of weight sensors in the smart
tachograph (Recital 6)

Like the Council, the Commission did not share
the Parliament's assessment that there is a direct link between the inclusion
of weight sensors in the smart tachographs and an improved control of driving
and resting times. Therefore, the Commission is satisfied with the insertion in
the text of a recital only, referring in general terms to a future assessment
to be made by the Commission concerning the potential for weight sensors
to contribute to an improved compliance of road transport legislation.

(e)
Tachograph driver cards for non-resident drivers
(Article 26 paragraph 4)

The Commission agrees with the new provision
which allows Member States to issue, under restrective conditions, temporary
and non renewable driver cards for a maximum period of 185 days. This new
provision offers a practical solution to an operationalproblem as it covers the
situation of those drivers from non-EU and non- ERTA (European Agreement
concerning the Work of Crews of Vehicles engaged in International Road
Transport) countries performing occasional transport operations in the EU, or of
those drivers holding EU citizenship, but who lost their residence status in
the EU and consequently face difficulties in obtaining a regular driver card.

(f)
Retrofitting of vehicles with digital
tachographs (Article 3 paragraph 4)

The Commission did not include any provisions
on the retrofitting of vehicles with the smart tachographs in its original
proposal, but can accept the principle of retrofitting as agreed to in this
position given the practical implications should be manageable .

3.2.3.     Non-technical amendments
related to the functioning of the tachograph system

(a)
Elimination of the requirement for drivers to
present forms attesting to their activities while being away from the vehicle
(Article 34 paragraph 3 in fine).

The Commission supports this provision as it
further reduces administrative burden.

(b)
Proper equipment and training of control
officers (Articles 38 and 39)

The Commission accepts the outcome of
negotiations between co-legislators on this point.

The Commission agreed to this position and
following the adoption of the Regulation will adopt measures, specifying the
content of the initial and continuing training of control officers. This
content shall be included in the training delivered to control officers in the
Member States.

(c)
Reinforcing the trustworthiness of workshops
(Article 24)

The Commission agrees to the reduction in the
frequency of the regular audits of the procedures applied by the workshops when
handling the tachograph from one to two years, as the Commission's initial
proposal of 10% for the unannouced technical audits of workshops and one year
period of validity of the workshop card was maintained.

3.2.4.     Non-technical amendments
related to data protection provisions, infringements and date of entry into
force

(a)
Reinforcement of data protection (Article 7)

The Commission agrees with the new provisions
on protection of personal data..

(b)
Harmonisation of infringements and penalties
(Article 41)

The Commission accepts the outcome of
negotiations between co-legislators on this point.

(c)
Responsibility of transport undertakings
(Article 33)

The Commission accepts the outcome of
negotiations between co-legislators on this point.

(d)
Entry into force (Article 48)

The Commission accepts the outcome of
negotiations between co-legislators on this point. The smart tachograph would
be required - for vehicles registered for the first time - 40 months after the
entry into force of the technical specifications for smart tachographs. The Commission
intends to establish those specification at the latest within two years after
the publication of the new Regulation.

3.2.5.     Amendments to Regulation
561/2006 on the harmonisation of certain social legislation relating to road
transport

The Commission welcomes the fact that its
proposed amendments to Article 13(1) of Regulation 561/2006, which allows
Member States to grant exemptions from the provisions of the Regulation within
a radius of 100 km radius from the base of the undertaking, subject to certain
conditions, were kept and agrees with the introduction of the so-called
"craftsmen exemption" in Article 3 of Regulation 561/2006, which
defines the scope of that Regulation.

4.           The Commission's conclusion

The present proposal is particularly important
to reach the objectives set out in its communication "Roadmap to a Single
European Transport Area – Towards a competitive and resource efficient
transport system" adopted on 28 March 2011.

Despite the weakening
of several provisions, the Commission considers that the Council’s position still reflects the main
objectives of its proposal and therefore believes that the legislative process
should be concluded with the vote by the European Parliament of its early
second reading position, which following the results of the informal trilogue
of 14 May 2013, should coincide with the Council position.

COMMISSION STATEMENTS

1) Commission statement concerning
Regulation (EC) 561/2006

In order to ensure an effective and uniform
implementation of the legislation on driving times and rest periods, the
Commission will continue to monitor closely the implementation of that
legislation and, where necessary, take the appropriate initiatives.

2) Commission statement concerning
implementing acts

The Commission considers that the future
acts, which the Commission has been given the power to adopt by the legislative
act in order to set out the detailed provisions and specifications for the
tachograph, tachograph cards and record sheets, as well as the type approval
requirements, aim at supplementing the technical specifications set out in the
basic act and should therefore be delegated acts to be adopted on the basis of
article 290 TFEU. The Commission will not stand against the adoption of the
text as agreed by the co-legislators. Nevertheless, the Commission recalls that
the question of delimitation between Articles 290 and 291 TFEU is currently
under examination by the Court of justice in the "biocides"
case."

3) Commission statement concerning the
use of Article 5 (4) subparagraph 2 letter b) of Regulation 182/2011

The Commission underlines that it is
contrary to the letter and to the spirit of Regulation 182/2011 (OJ L 55 of
28.2.2011, p. 13) to invoke Article 5 § 4, subparagraph 2, point b) in a
systematic manner. Recourse to this provision must respond to a specific need
to depart from the rule of principle which is that the Commission may adopt a
draft implementing act when no opinion is delivered. Given that it is an
exception to the general rule established by Article 5 § 4 recourse to
subparagraph 2, point b), cannot be simply seen as a "discretionary
power" of the legislator, but must be interpreted in a restrictive manner
and thus must be justified.

While the Commission notes the agreement
reached by the European Parliament and the Council on the recourse to this
provision it regrets that such justification is not reflected in a recital.