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COMMON POSITION (EC) No 11/2005

adopted by the Council on 9 December 2004

with a view to adopting Directive 2005/.../EC of the European Parliament and of the Council of ... on minimum conditions for the implementation of Council Regulation (EEC) Nos 3820/85 and 3821/85 concerning social legislation relating to road transport activities

(Text with EEA relevance)

(2005/C 63 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 71(1) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee (1),

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),

Whereas:

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject-matter

This Directive lays down minimum conditions for the implementation of Regulations (EEC) Nos 3820/85 and 3821/85.

Article 2

Checking systems

1.   Member States shall organise a system of appropriate and regular checks on correct and consistent implementation, as referred to in Article 1, both at the roadside and at premises of undertakings of all transport categories.

These checks shall cover each year a large and representative cross-section of mobile workers, drivers, undertakings and vehicles of all transport categories falling within the scope of Regulations (EEC) Nos 3820/85 and 3821/85.

Member States shall ensure that a coherent national enforcement strategy is applied on their territory. For this purpose, Member States may designate a body for the coordination of actions taken under Articles 4 and 6, in which case the Commission and the other Member States shall be informed thereof.

2.   Each Member State shall organise checks in such a way that, as from ... (7), 1 % of days worked by drivers of vehicles falling within the scope of Regulations (EEC) Nos 3820/85 and 3821/85 are checked. This percentage will increase to 2 % from 1 January 2009 and to 3 % from 1 January 2011.

From 1 January 2013 this minimum percentage may be increased to 4 % by the Commission, in accordance with the procedure referred to in Article 12(2), provided that the statistics collected pursuant to Article 3 show that, on average, more than 90 % of all vehicles checked are equipped with a digital tachograph. In making its decision, the Commission shall also take into account the effectiveness of existing enforcement measures, in particular the availability of digital tachograph data at the premises of undertakings.

Not less than 15 % of the total number of the working days checked shall be checked at the roadside and not less than 25 % at the premises of undertakings. From 1 January 2008 not less than 30 % of the total number of the working days checked shall be checked at the roadside and not less than 50 % shall be checked at the premises of undertakings.

3.   The information submitted to the Commission in accordance with Article 16(2) of Regulation (EEC) No 3820/85 shall include the number of drivers checked at the roadside, the number of checks at the premises of undertakings, the number of working days checked and the number of infringements reported.

Article 3

Statistics

Member States shall ensure that statistics collected from the checks organised in accordance with Article 2(1) and (2) are broken down into the following categories:

These statistics shall be submitted annually to the Commission.

The appropriate authorities in the Member States shall keep a record of the data collected for the previous year.

Any further clarification required of the definitions of the categories mentioned under (a) and (b) shall be established by the Commission, in accordance with the procedure referred to in Article 12(2).

Article 4

Roadside checks

1.   Roadside checks shall be organised in various places and at any time and shall cover a sufficiently extensive part of the road network to make it difficult to avoid checkpoints.

2.   Member States shall ensure that:

3.   The points to be verified at roadside checks are set out in Part A of Annex I. Checks may focus on a specific point if the situation so requires.

4.   Without prejudice to Article 9(2), roadside checks shall be carried out without discrimination. In particular, enforcement officers shall not discriminate on any of the following grounds:

5.   Enforcement officers shall be provided with:

6.   If, in a Member State, the findings of a roadside check on the driver of a vehicle registered in another Member State afford grounds for believing that infringements have been committed which cannot be detected during the check owing to lack of necessary data, the competent authorities of the Member States concerned shall assist each other in clarifying the situation.

Article 5

Concerted checks

Member States shall, at least six times per year, undertake concerted roadside checks on drivers and vehicles falling within the scope of Regulations (EEC) Nos 3820/85 and 3821/85. Such checks shall be undertaken at the same time by the enforcement authorities of two or more Member States, each operating in its own territory.

Article 6

Checks at the premises of undertakings

1.   Checks at premises shall be planned in the light of past experience in relation to the various categories of transport. They shall also be carried out if serious infringements of Regulation (EEC) No 3820/85 or Regulation (EEC) No 3821/85 have been detected at the roadside.

2.   Checks at premises shall cover the points listed in Part A and Part B of Annex I.

3.   Enforcement officers shall be provided with:

4.   Enforcement officers in a Member State shall, in the course of the check take into account any information provided by the designated coordinating enforcement body of another Member State, as referred to in Article 7(1), concerning the activities of the undertaking in question in that other Member State.

5.   For the purposes of paragraphs 1 to 4, checks carried out at the premises of the competent authorities, on the basis of relevant documents or data handed over by undertakings at the request of the said authorities, shall have the same status as checks carried out at the premises of undertakings.

Article 7

Intracommunity liaison

1.   Member States shall designate a body which shall have the following tasks:

The body shall be represented on the Committee referred to in Article 12(1).

2.   Member States shall notify the Commission of the designation of this body and the Commission shall advise the other Member States accordingly.

3.   The exchange of data, of experience and of intelligence between Member States shall be actively promoted, primarily but not exclusively through the Committee referred to in Article 12(1) and any such body as the Commission may designate in accordance with the procedure referred to in Article 12(2).

Article 8

Exchange of information

1.   Information made available bilaterally under Article 17(3) of Regulation (EEC) No 3820/85 or Article 19(3) of Regulation (EEC) No 3821/85 shall be exchanged between the designated bodies notified to the Commission in accordance with Article 7(2):

2.   Member States shall seek to establish systems for the electronic exchange of information. In accordance with the procedure referred to in Article 12(2), the Commission shall define a common methodology for effective information exchange.

Article 9

Risk rating system

1.   Member States shall introduce a risk rating system for undertakings based on the relative number and severity of any infringements of Regulations (EEC) No 3820/85 or No 3821/85 that an individual undertaking has committed.

2.   Undertakings with a high-risk rating shall be checked more closely and more often. The criteria and detailed rules for implementing such a system shall be discussed in the Committee referred to in Article 12, with a view to establishing a system for the exchange of information on best practices.

Article 10

Report

By... (8) the Commission shall submit to the European Parliament and to the Council a report analysing the penalties for serious infringements provided for in the legislation of the Member States.

Article 11

Best practice

1.   In accordance with the procedure referred to in Article 12(2), the Commission shall establish guidelines on best enforcement practice.

Those guidelines shall be included in the biennial report referred to in Article 16(2) of Regulation (EEC) No 3820/85.

2.   Member States shall establish joint training programmes on best practice to be held at least once per year and shall facilitate exchanges, at least once per year, of staff of their respective bodies for intracommunity liaison with their counterparts in other Member States.

3.   An electronic and printable form shall be drawn up by the Commission in accordance with the procedure referred to in Article 12(2), to be used when a driver has been on sick leave or on annual leave, or when the driver has driven another vehicle exempted from the scope of Regulation (EEC) No 3820/85, during the period mentioned in the first indent of the first subparagraph of Article 15(7) of Regulation (EEC) No 3821/85.

4.   Member States shall ensure that enforcement officers are well trained for the execution of their tasks.

Article 12

Committee procedure

1.   The Commission shall be assisted by the Committee established by Article 18(1) of Regulation (EEC) No 3821/85.

2.   Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

3.   The Committee shall adopt its Rules of Procedure.

Article 13

Implementing measures

At the request of a Member State or on its own initiative the Commission shall, in accordance with the procedure referred to in Article 12(2), adopt implementing measures in particular with one of the following aims:

Article 14

Negotiations with third countries

Once this Directive has entered into force, the Community shall begin negotiations with the relevant third countries with a view to the application of rules equivalent to those laid down in this Directive.

Article 15

Updating of the Annexes

Amendments to the Annexes which are necessary to adapt them to developments in best practice shall be adopted in accordance with the procedure referred to in Article 12(2).

Article 16

Transposition

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 January 2006. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.

When Member States adopt these measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field governed by this Directive.

Article 17

Repeal

1.   Directive 88/599/EEC is hereby repealed with effect from ... (9).

2.   References made to the repealed Directive shall be construed as being made to this Directive.

Article 18

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 19

Addressees

This Directive is addressed to the Member States.

Done at Brussels, ...

For the European Parliament

The President

For the Council

The President

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(1)OJ C 241, 28.9.2004, p. 65.

(2)  Opinion of the European Parliament of 20 April 2004 (OJ C 104 E, 30.4.2004), Council Common Position of 9 December 2004 and Position of the European Parliament of ... (not yet published in the Official Journal).

(3)OJ L 370, 31.12.1985, p. 1. Regulation as amended by Directive 2003/59/EC of the European Parliament and of the Council (OJ L 226, 10.9.2003, p. 4).

(4)OJ L 370, 31.12.1985, p. 8. Regulation as last amended by Commission Regulation (EC) No 432/2004 (OJ L 71, 10.3.2004, p. 3).

(5)OJ L 184, 17.7.1999, p. 23.

(6)OJ L 325, 29.11.1988, p. 55. Directive as amended by Regulation (EC) No 2135/98 (OJ L 274, 9.10.1998, p. 1).

(7)  Date of entry into force of this Directive.

(8)  Three years of the entry into force of this Directive.

(9)  Date of entry into force of this Directive.

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ANNEX I

PART A

Roadside checks

The following points shall, in general, be covered by roadside checks:

PART B

Checks at the premises of undertakings

The following points shall be checked at the premises of undertakings, in addition to those checked at the roadside:

Member States may, if appropriate, check on the joint liability of other instigators or accessories in the transport chain, such as shippers, freight forwarders or contractors, if an infringement is detected, including verification that contracts for the provision of transport permit compliance with Regulations (EEC) Nos 3820/85 and 3821/85.

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(1)OJ L 42, 23.2.1970, p. 1. Directive as last amended by Commission Directive 2004/78/EC (OJ L 153, 30.4.2004, p. 103).

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ANNEX II

STANDARD EQUIPMENT TO BE AVAILABLE TO ENFORCEMENT UNITS

Member States shall ensure that the following standard equipment is available to enforcement units carrying out the duties set out in Annex I:

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STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

Main aims of the draft Directive

The draft Directive aims

The current legislation prescribes that a minimum overall percentage of 1 % of working days should be checked (3); the Commission now proposes to raise the standard to one that is both challenging and achievable, and will greatly improve road safety.

With the introduction of the digital tachograph data will be more easily accessible and more precise; this will enable the Member States to increase the number and effectiveness of checks both at the roadside and at premises of undertakings of all transport categories. Furthermore the draft Directive obliges the Member States to collect statistics on these checks and to submit them to the Commission annually.

Other new provisions contained the draft Directive are

The draft Directive also provides for the establishment of guidelines on best practices, joint training activities and the exchange of intelligence and experience.

II.   ANALYSIS OF THE COMMON POSITION

1.   General

Council holds the view that its common position provides considerable added value in comparison to the legislation which is currently in force.

Taking into account the gradual renewal of the fleet of transport undertakings - and thus the gradual increase of the number of vehicles equipped with the digital tachograph - Member States will introduce a system of checks which ensures that by 2011 at least 3 % of days worked by drivers of vehicles, which fall under the scope of this draft Directive, are checked. Whereas the Commission foresaw an immediate increase in checks to 3 % of days worked as from the entry into force of the new Directive, Council decided to achieve this goal by gradually raising the number of checks from 1 % to 2 % as of 1 January 2009. Additionally, a provision was introduced to allow the increase of the minimum percentage to 4 % as of 1 January 2013, provided that statistics prove that more than 90 % of all vehicles checked are equipped with a digital tachograph.

In order to secure a good balance of checks at roadside and at premises of undertakings the common position contains a provision fixing the total number of working days checked at the roadside at 30 % (minimum) and the total number of working days checked at premises at 50 % (minimum) as of 1 January 2008.

Council rejected the inclusion of Directive 2002/15/EC, the ‘Working Time Directive’ into the scope of this draft Directive, as it wanted to focus on the enforcement of actual driving and resting times. Moreover, ‘working time’ can not be checked with any degree of certainty through the use of the digital tachograph and would therefore render roadside checks rather difficult.

2.   Amendments of Parliament

III.   CONCLUSION

The Council considers that, in the context of the most important ‘core provisions’ of the draft Directive - pertaining to the increase of the number of checks performed from 1 % to 3 % over the next 6 years and the fixation of minimum percentages of the total numbers of working days checked at roadside and at premises of undertakings - it appears that there is not a wide divergence of opinion between the European Parliament and Council. Most of the amendments which the Council rejected either are now covered in the draft Social Harmonisation Regulation or would have entailed a major extension of the scope of the draft Directive. Against this background, Council looks forward to reaching an agreement with Parliament on this draft Directive in the near future.

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(1)  Document 8510/04 CODEC 567 TRANS 160 SOC 184.

(2)OJ C 241 28.9. 2004, p. 65.

(3)  cf. Article 2.2 of Council Directive 88/599/EEC of 23 November 1988 on standard checking procedures for the implementation of Regulation (EEC) No 3820/85 on the harmonisation of certain social legislation relating to road transport and Regulation (EEC) No 3821/85 on recording equipment in road transport (OJ L 325, 29/11/1988, p. 55).

(4)cf. Common position adopted by the Council with a view to the adoption of Regulation of the European Parliament and of the Council on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) Nos 3821/85 and 2135/98.

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