COUNCIL REGULATION (EC) No 2135/98 of 24 September 1998 amending Regulation (EEC) No 3821/85 on recording equipment in road transport and Directive 88/599/EEC concerning the application of Regulations (EEC) No 3820/84 and (EEC) No 3821/85
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 75(1)(c) and (d) thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the Economic and Social Committee (2),
Acting in accordance with the procedure laid down in Article 189c of the Treaty (3),
(1) Whereas Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (4) lays down provisions concerning the construction, installation, use and testing of recording equipment in road transport;
(2) Whereas experience has shown that the economic pressures and competition in road transport have led some drivers employed by road haulage companies to flout certain rules, particularly those concerning the driving and rest times laid down in Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (5);
(3) Whereas blatant infringements and fraud present a road safety hazard and are unacceptable for reasons of competition for the individual driver who does respect the rules;
(4) Whereas road safety would be improved by the automatic recording and regular monitoring, both by the undertaking and by the competent authorities, of details of the driver's performance and behaviour and of the vehicle's journey, such as speed and distance covered;
(5) Whereas Community social regulations contain certain requirements for limits on the daily driving and rest time and also for the total driving and rest time, for up to two weeks; whereas it is difficult to monitor compliance with these requirements given that data are recorded on several daily record sheets, out of which the record sheets for the current week and the last day of the previous week are to be stored in the cab;
(6) Whereas, to put an end to the most common abuses of the present system, it is therefore necessary to introduce new advanced equipment such as recording equipment fitted with an electronic device for storing relevant information and a personal driver card, so ensuring that the data recorded are retrievable, intelligible when printed out, and reliable, and that they provide an indisputable record of the work done by both the driver over the last few days and by the vehicle over a period of several months;
(7) Whereas the total security of the system and its components is essential if recording equipment is to function efficiently;
(8) Whereas provisions need to be established to govern the conditions under which the memory cards provided for in Annex IB may be issued and used;
(9) Whereas the data on drivers' activities must be verifiable by the drivers themselves, by the companies that employ them and by the competent authorities of the Member States; whereas, however, only data relevant to their respective activities should be accessible to a driver and his company;
(10) Whereas the recording equipment provided for in this Regulation must be installed on vehicles put into service for the first time after publication in the Official Journal of the European Communities of the technical specifications some of which are defined by the Commission in accordance with the committee procedure referred to in Article 18 of Regulation (EEC) No 3821/85; whereas a transitional period is needed to allow new recording equipment to be manufactured in accordance with those technical specifications and granted EC component type-approval;
(11) Whereas it is desirable that recording equipment complying with Annex IB should also offer the possibility of low-cost expansion of its functions for fleet management;
(12) Whereas, in accordance with the principle of subsidiarity, Community action is necessary to amend Regulation (EEC) No 3821/85 in order to ensure that recording equipment complying with Annex IB is compatible with driver cards and that the data produced by recording equipment complying with Annexes I and IB are consistent;
(13) Whereas technical progress necessitates the prompt adoption of the technical requirements laid down in the Annexes to this Regulation; whereas, in order to facilitate the implementation of the measures needed for this purpose, provision should be made for technical adaptations of those Annexes to be approved by the Commission, acting in accordance with the committee procedure as set out in Council Decision 87/373/EEC of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission (6);
(14) Whereas the introduction of new recording equipment means that certain provisions of Directive 88/599/EEC (7) concerning the application of Regulations (EEC) No 3820/85 and (EEC) No 3821/85 need to be amended,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 3821/85 is hereby amended as follows:
1. in Article 1 the words 'and of Annexes I and II thereto` shall be replaced by 'and of Annexes I or IB and II thereto`;
2. Articles 4, 5, 6, 7, 8 and 11 shall be amended by adding the words 'or memory card` where reference is made to 'record sheet` or 'record sheets`;
3. in Article 4 the following subparagraph shall be inserted before the first subparagraph:
'For the purposes of this Chapter, the words "recording equipment" shall mean "recording equipment or its components".`;
4. in Article 5, the first subparagraph shall be replaced by the following:
'A Member State shall grant EC component type-approval to any type of recording equipment, to any model record sheet or memory card which conforms to the requirements laid down in Annex I or IB to this Regulation, provided the Member State is in a position to check that production models conform to the approved type.
The system's security must comply with the technical requirements laid down in Annex IB. The Commission, acting in accordance with the procedure laid down in Article 18, shall ensure that the said Annex stipulates that recording equipment may not be granted EC component type-approval until the whole system (the recording equipment itself, driver card and electrical gearbox connections) has demonstrated its capacity to resist attempts to tamper with or alter the data on driving times. The tests necessary to establish this shall be carried out by experts familiar with up to date tampering techniques.`;
5. in Article 12:
(a) the following shall be added to paragraph 1:
'The period of administrative validity of approved workshop and fitter cards shall not exceed one year.
If a card issued to an approved workshop or fitter is to be extended, is damaged, malfunctions, is lost or is stolen, the authority shall supply a replacement card within five working days of receiving a detailed request to that effect.
Where a new card is issued to replace an old one, the new card shall bear the same "workshop" information number, but the index shall be increased by one. The authority issuing the card shall maintain a register of lost, stolen or defective cards.
Member States shall take any measure necessary to prevent the cards distributed to approved fitters and workshops from being falsified.`;
(b) paragraph 2 shall be replaced by the following:
'2. the approved fitter or workshop shall place a special mark on the seals which it affixes and, in addition, shall enter for recording equipment in conformity with Annex IB, the electronic security data for carrying out, in particular, the authentication checks. The competent authorities of each Member State shall maintain a register of the marks and electronic security data used and of approved workshop and fitter cards issued.`;
(c) paragraph 3 shall be replaced by the following:
'3. The competent authorities of the Member States shall forward to the Commission the lists of approved fitters and workshops and the cards issued to them and shall forward to it copies of the marks and of the necessary information relating to the electronic security data used.`;
(d) in paragraph 4 the reference to 'Annex I` shall be replaced by a reference to 'Annexes I and IB`;
(e) in paragraph 5 the words 'or in Annex IB section VI(c)` shall be in inserted after the words 'paragraph 4`;
6. Article 13 shall be replaced by the following:
'Article 13
The employer and drivers shall ensure the correct functioning and proper use of, on the one hand, the recording equipment and, on the other, the driver card where a driver is required to drive a vehicle fitted with recording equipment in conformity with Annex IB.`;
7. in Article 14:
(a) paragraph 1 shall be replaced by the following:
'1. The employer shall issue a sufficient number of record sheets to drivers of vehicles fitted with recording equipment in conformity with Annex I, bearing in mind the fact that these sheets are personal in character, the length of the period of service and the possible obligation to replace sheets which are damaged, or have been taken by an authorised inspecting officer. The employer shall issue to drivers only sheets of an approved model suitable for use in the equipment installed in the vehicle.
Where the vehicle is fitted with recording equipment in conformity with Annex IB, the employer and the driver shall ensure that, taking into account the length of the period of service, the printing on request referred to in Annex IB can be carried out correctly in the event of an inspection.`;
(b) the following paragraphs shall be added:
'3. The driver card as defined in Annex IB shall be issued, at the request of the driver, by the competent authority of the Member State where the driver has his normal residence.
A Member State may require any driver subject to the provisions of Regulation (EEC) No 3820/85 and normally resident on its territory to hold a driver card.
(a) For the purposes of this Regulation "normal residence" means the place where a person usually lives, that is for at least 185 days in each calendar year, because of personal and occupational ties, or, in the case of a person with no occupational ties, because of personal ties which show close links between that person and the place where he is living.
However, the normal residence of a person whose occupational ties are in a different place from his personal ties and who consequently lives in turn in different places situated in two or more Member States shall be regarded as being the place of his personal ties, provided that such person returns there regularly. This last condition need not be met where the person is living in a Member State in order to carry out a fixed-term assignment.
(b) Drivers shall give proof of their place of normal residence by any appropriate means, such as their identity card or any other valid document.
(c) Where the competent authorities of the Member State issuing the driver card have doubts as to the validity of a statement as to normal residence made in accordance with point (b), or for the purpose of ceratin specific controls, they may request any additional information or evidence.
(d) The competent authorities of the issuing Member State shall, as far as this can be done, ensure that the applicant does not already hold a valid driver card.
4. (a) The competent authority of the Member State shall personalise the driver card in accordance with the provisions of Annex IB.
For administrative purposes, the driver card may not be valid for more than five years.
The driver may hold one valid driver card only. The driver is authorised to use only his own personalised driver card. The driver shall not use a driver card which is defective or which has expired.
When a new driver card is issued replacing the old, the new card shall bear the same driver card issue number but the index shall be increased by one. The issuing authority shall keep records of issued, stolen, lost or defective driver cards for a period at least equivalent to their period of administrative validity.
If the driver card is damaged, malfunctions or is lost or stolen, the authority shall supply a replacement card within five working days of receiving a detailed request to that effect.
In the event of a request for the renewal of a card whose expiry date is approaching, the authority shall supply a new card before the expiry date provided that the request was sent to it within the time limits laid down in the second subparagraph of Article 15(1).
(b) Driver cards shall be issued only to applicants who are subject to the provisions of Regulation (EEC) No 3820/85.
(c) The driver card shall be personal. It may not, during its official period of validity, be withdrawn or suspended for whatever reason unless the competent authority of a Member State finds that the card has been falsified, or the driver is using a card of which he is not the holder, or that the card held has been obtained on the basis of false declarations and/or forged documents. If such suspension or withdrawal measures are taken by a Member State other than the Member State of issue, the former shall return the card to the authorities of the Member State which issued it and shall indicate the reasons for returning it.
(d) Driver cards issued by Member States shall be mutually recognised.
Where the holder of a valid driver card issued by a Member State has established his normal place of residence in another Member State, he may ask for his card to be exchanged for an equivalent driver card; it shall be the responsibility of the Member State which carries out the exchange to verify if necessary whether the card produced is actually still valid.
Member States carrying out an exchange shall return the old card to the authorities of the Member State of issue and indicate the reasons for so doing.
(e) Where a Member State replaces or exchanges a driver card, the replacement or exchange, and any subsequent replacement or renewal, shall be registered in that Member State.
(f) Member States shall take all the necessary measures to prevent any possibility of driver cards being falsified.
5. Member States shall ensure that data needed to monitor compliance with Regulation (EEC) No 3820/85 and Council Directive 92/6/EEC of 10 February 1992 on the installation and use of speed limitation devices for certain categories of motor vehicles in the Community(*) which are recorded and stored by recording equipment in conformity with Annex IB to this Regulation can be made available for at least 365 days after the date of their recording and that they can be made available under conditions that guarantee the security and accuracy of the data.
Member States shall take any measures necessary to ensure that the resale or decommissioning of recording equipment cannot detract, in particular, from the satisfactory application of this paragraph.
(*) OJ L 57, 2.3.1992, p.27.`;
8. in Article 15:
(a) paragraph 1 and paragraph 2, first subparagraph, shall be amended by adding the words 'or driver card` where reference is made to 'record sheet` or 'record sheets`;
(b) in paragraph 1:
- the following subparagraph shall be inserted after the first subparagraph:
'Where a driver wishes to renew his driver card, he shall apply to the competent authorities of the Member State in which he has his normal residence not later than 15 working days before the expiry date of the card.`;
- the following fourth subparagraph shall be added:
'If the driver card is damaged, malfunctions or is lost or stolen, the driver shall apply within seven calendar days for its replacement to the competent authorities of the Member State in which he has his normal residence.`;
(c) after Article 5 the following paragraph shall be inserted:
'5a. The driver shall enter in the recording equipment in conformity with Annex IB the symbols of the countries in which he begins and ends his daily work period. However, a Member State may require drivers of vehicles engaged in transport operations inside its territory to add more detailed geographic specifications to the country symbol provided that the Member State has notified them to the Commission before 1 April 1998 and that they do not number more than 20.
The above data entries shall be activated by the driver, and may be entirely manual or automatic if the recording equipment is linked to a satellite tracking system.`;
(d) at the beginning of the first subparagraph of paragraph 6 the word 'equipment` shall be replaced by 'recording equipment defined in Annex I`;
(e) paragraph 7 shall be replaced by the following:
'7. Where the driver drives a vehicle fitted with recording equipment in conformity with Annex I, he must be able to produce, whenever an inspecting officer so requests:
- the record sheets for the current week and, in any event, the sheet for the last day on which he drove during the previous week,
- the driver card if he holds one, and
- print-outs from the recording equipment defined in Annex IB relating to the periods of time indicated in paragraph 3, second indent, (a), (b), (c) and (d) if he drove a vehicle fitted with such recording equipment during the period referred to in the first indent of this paragraph.
Where the driver drives a vehicle fitted with recording equipment in conformity with Annex IB, he must be able to produce, whenever an inspecting officer so requests:
- the driver card of which he is the holder,
- the record sheets corresponding to the same period as the one referred to in the first indent of the previous subparagraph during which he drove a vehicle fitted with recording equipment in conformity with Annex I.
An authorised inspecting officer may check compliance with Regulation (EEC) No 3820/85 by analysis of the record sheets, of the displayed or printed data which have been recorded by the recording equipment or by the driver card or, failing this, by analysis of any other supporting document that justifies non-compliance with a provision, such as those laid down in Article 16(2) and (3).`;
(f) the following paragraph shall be added:
'8. It shall be forbidden to falsify, suppress or destroy data recorded on the record sheet, stored in the recording equipment or on the driver card, or print-outs from the recording equipment as defined in Annex IB. The same applies to any manipulation of the recording equipment, record sheet or driver card which may result in data and/or printed information being falsified, suppressed or destroyed. No device which could be used to this effect shall be present on the vehicle.`;
9. in Article 16:
(a) paragraph 2 shall be replaced by the following:
'2. While the recording equipment is unserviceable or malfunctioning, drivers shall mark on the record sheet or sheets, or on a temporary sheet to be attached to the record sheet or to the driver card, on which he shall enter data enabling him to be identified (driver's card number and/or name and/or driving licence number), including his signature, all information for the various periods of time which are no longer recorded or printed out correctly by the recording equipment.
If a driver card is damaged, malfunctions or is lost or stolen, the driver shall, at the end of his journey, print out the information relating to the periods of time recorded by the recording equipment and mark on that document the details that enable him to be identified (the driver card number and/or name and/or driving licence number), including his signature.`;
(b) the following paragraph shall be added:
'3. If a driver card is damaged or if it malfunctions, the driver shall return it to the competent authority of the Member State in which he has his normal residence. Theft of the driver card shall be the subject of a formal declaration to the competent authorities of the State where the theft occurred.
Loss of the driver card must be reported in a formal declaration to the competent authorities of the State that issued it and to the competent authorities of the Member State of normal residence where they are different.
The diver may continue to drive without a driver card for a maximum period of 15 calendar days or for a longer period if this is necessary for the vehicle to return to its premises, provided he can prove the impossibility of producing or using the card during this period.
Where the authorities of the Member State in which the driver has his normal residence are different from those which issued his card and where the latter are requested to renew, replace or exchange the driver card, they shall inform the authorities which issued the old card of the precise reasons for its renewal, replacement or exchange.`;
10. Article 17 shall be replaced by the following:
'Article 17
1. The amendments necessary to adapt the Annexes to technical progress shall be adopted in accordance with the procedure laid down in Article 18.
2. The technical specifications relating to the following sections of Annex IB shall be adopted as soon as possible and if possible before 1 July 1998 by the same procedure:
(a) Chapter II
- (d) 17:
displaying and printing of faults in the recording equipment,
- (d) 18:
displaying and printing of faults in the driver card,
- (d) 21:
displaying and printing of summary reports;
(b) Chapter III
- (a) 6.3:
standards for the protection of vehicle electronics against electrical interference and magnetic fields,
- (a) 6.5:
protection (security) of the total system,
- (c) 1:
warning signals indicating the internal malfunctioning of the recording equipment,
- (c) 5:
format of the warnings,
- (f):
maximum tolerances;
(c) Chapter IV, A:
- 4:
standards,
- 5:
security, including data protection,
- 6:
temperature range,
- 8:
electrical characteristics,
- 9:
logical structure of the driver card,
- 10:
functions and commands,
- 11:
elementary files;
and Chapter IV, B;
(d) Chapter V:
printer and standard print-outs.`;
11. Article 18 shall be replaced by the following:
'Article 18
1. Where reference is made to the procedure laid down in this Article, the Commission shall be assisted by a committee composed of the representatives of the Member States and chaired by the representative of the Commission.
2. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 148(2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote.
3. (a) The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the committee.
(b) If the measures envisaged are not in accordance with the opinion of the committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken. The Council shall act by a qualified majority.
If, on the expiry of a period of three months from the date of referral to the Council, the Council has not acted, the proposed measures shall be adopted by the Commission.`;
12. Annex IB, as contained in the Annex to the present Regulation, is hereby added.
Article 2
1. (a) 24 months from the date of publication in the Official Journal of the European Communities of the act to be adopted pursuant to Article 17(2) of Regulation (EEC) No 3821/85, as amended by this Regulation, vehicles put into service for the first time must be fitted with recording equipment in accordance with the requirements of Annex IB to Regulation (EEC) No 3821/85.
(b) As from the date of entry into force of the provisions of subparagraph (a), vehicles used for the carriage of persons containing more than eight seats apart from the driver's seat and having a maximum weight exceeding 10 tonnes, and also vehicles used for the carriage of goods having a maximum weight exceeding 12 tonnes, registered for the first time as from 1 January 1996, shall in so far as the transmission of signals to the recording equipment with which they are fitted is exclusively electrical, satisfy the requirements of Annex IB to Regulation (EEC) No 3821/85 when the equipment in question is replaced.
2. Member States shall take the necessary measures to ensure that they are able to issue driver cards no later than 21 months following the date of publication of the act referred to in paragraph 1(a).
3. In the event that 12 months after the date of publication of the act referred to in paragraph 1, EC type-approval has not been granted to any item of recording equipment which conforms to the requirements of Annex IB to Regulation (EEC) No 3821/85, the Commission shall submit a proposal to the Council for an extension of the deadline laid down in paragraphs 1 and 2.
4. Drivers who, before the date laid down in paragraph 2, drive vehicles fitted with recording equipment conforming to the requirements of Annex IB to Regulation (EEC) No 3821/85 for which the competent authorities have not yet been able to issue a driver card shall at the end of their daily work period print out the information concerning the various periods of time recorded by the recording equipment and shall indicate their identification details on the print-out (name and driving licence number), and sign it.
Article 3
Directive 88/599/EEC is hereby amended as follows:
1. Article 3(2) shall be replaced by the following:
'2. The elements of roadside checks are:
- daily driving periods, breaks and daily rest periods; in the case of clear indications of irregularities, also the preceding days' record sheets which have to be carried on board the vehicle in accordance with Article 15(7) of Regulation (EEC) No 3821/85 as amended by Regulation (EC) No 2135/98(*) and/or the data stored for the same period on the driver card and/or in the memory of the recording equipment in conformity with Annex IB,
- for the period referred to in Article 15(7) of Regulation (EEC) No 3821/85, any cases where the vehicle's authorised speed is exceeded, to be defined as being any periods of more than 1 minute during which the vehicle's speed exceeds 90 km/h for category N3 vehicles or 105 km/h for category M3 vehicles (categories N3 and M3 being as defined in Annex I to Directive 70/156/EEC)(**),
- where appropriate, momentary speeds attained by the vehicle as recorded by the recording equipment in no more than the previous 24 hours' use of the vehicle,
- last weekly rest period, where appropriate,
- correct functioning of the recording equipment (determination of possible misuse of the equipment and/or the driver card and/or record sheets) or, where appropriate, presence of the documents referred to in Article 14(5) of Regulation (EEC) No 3820/85.
(*) Council Regulation (EC) No 2135/98 of 24 September 1998 amending Regulation (EEC) No 3821/85 on recording equipment in road transport and Directive 88/599/EEC concerning the procedures for applying Regulations (EEC) No 3820/85 and (EEC) No 3821/85 (OJ L 274, 9.10.1998, p. 1).
(**) Council Directive 70/156/EEC of 6 February 1970 on the approximation of the laws of the Member States relating to the type-approval of motor vehicles and their trailers (OJ L 42, 23.2.1970, p. 1). Directive as last amended by Directive 97/27/EC (OJ L 233, 25.8.1997, p. 1).`;
2. Article 4(3) shall be replaced by the following:
'3. For the purposes of this Article, checks carried out at the premises of the competent authorities, on the basis of relevant documents and/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 4
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 September 1998.