COMMISSION OPINION of 5 May 1976 addressed to the Italian Government on the implementing measures for Council Regulation (EEC) No 543/69 on the harmonization of certain social legislation relating to road transport (76/470/EEC)

1. Under cover of its letter of 12 September 1975 the Italian Government forwarded to the Commission pursuant to Article 14a of Council Regulation (EEC) No 543/69 of 25 March 1969 (1) the model form of declaration (Dichiarazione sostitutiva del libretto individuale di controllo) provided for by Law 62 of 14 February 1974 and the associated draft interministerial regulation (Decreto interministeriale del ministro per i trasporti e del ministro del lavoro e della previdenza sociale).

The particulars contained in the form of declaration are intended to replace the individual logbook prescribed by Regulation (EEC) No 543/69 in the case of internal goods transport operations (within a radius of 50 kilometres from the place where the vehicle is based) under Article 14a (2) thereof. The draft interministerial regulation contains provisions relating to the admissibility, scope and procedures of the new method of control.

Under the proposed control system the responsible employer or his legal representative will make a formal declaration to the competent authorities on a declaration or control form provided for this purpose instead of in the individual logbook. This declaration will contain not only details relating to the undertaking and the vehicle but also a statement that transport operations will only be carried out within a maximum radius of 50 kilometres from the vehicle's base, and particulars of the time at which the vehicle leaves its base, the total number and length of breaks permitted and the time at which the vehicle finally returns to its base at the end of a working shift ; from these data the length of the driving period can be calculated. It is to be inferred from the draft model that the departure times, breaks and return times are standard times. It is clearly stated on the said form that the driving periods must always be kept within the limits laid down in Articles 7 and 11 of Regulation (EEC) No 543/69. The total time taken to carry out the particular operations in question must also be given.

The information in the declaration form will be stamped by the competent authority in formal acceptance of the declaration and as a provisional exemption by ministerial authorization from the duty to keep the individual logbook in the particular case. The duly completed form will also be recognized by the control bodies as proof of exemption from the duty to keep the individual logbook and must therefore be kept in the vehicle concerned.

2. The Commission considers that the proposed system satisfies the conditions of Regulation (EEC) No 543/69. The second subparagraph of Article 14a (b) empowers Member States, after consulting the Commission, to grant certain exemptions in relief of the duty to keep an individual logbook in the case of internal goods transport operations until the compulsory introduction of the recording equipment within the meaning of Regulation (EEC) No 1463/70 (3), provided that they take appropriate measures "to keep an effective check on compliance with the provisions applicable to such transport operations such as will ensure that standards of employee protection and road safety are not impaired".

It is considered that the exemptions provided for in Article 14a (b) may also include the complete replacement of the individual logbook by another simplified method of control adapted to the special conditions of local goods transport as provided for in the Italian proposal.

The proposed control system also ensures that an effective check is kept as required by the Regulation. It permits an adequate watch to be kept on the general activities of the driver in essential matters and also involves the necessary degree of participation in the control measures of those responsible, i.e. the driver and the employer, for complying with the provisions relating to working hours, particularly enabling them to carry out adequate checks themselves.

In particular it should be noted that the particulars of the form of declaration clearly show that the control system described will apply only to undertakings which use their vehicles for regular short-distance transport operations.

Although the control system only involves a declaration by the responsible employer or his legal representative, as opposed to information entered by the driver himself, it may be considered that the driver is involved in proving the number of hours he has (1) OJ No L 77, 29.3.1969, p. 49. (2) Article 14a was introduced by Council Regulation (EEC) No 515/72 of 28.2.1972 (OJ No L 67, 20.3.1972, p.11). (3) OJ No L 164, 27.7.1970, p. 1. worked, in that he has to keep the completed form with him in his vehicle and be responsible therefor and because in principle he must be instructed by the employer as to the provisions with which he must comply.

It is considered that there is sufficient continuity and closeness of checking by the employer and a sufficient possibility of effective supervision by the authorities, although the employer or his legal representative when making the entries only has to make a single declaration, which in principle is repeated only when there is any change in the information given. The fact that the employer has wide opportunities to influence the way that his driver carries out his work can be regarded as an advantage.

It is to be borne in mind that both the departure and return times of the vehicle to be set out on the declaration form and also the breaks are fixed times, or to be more precise standard times. If these standard times are adhered to, the actual time required for the transport operation will be limited, thereby severely reducing the chance to abuse the driving and working hours within this period and enabling substantially effective checks to be carried out.

The fact that the standard times may be exceeded in individual cases does not detract from this view. A particular excess must be punished as an offence if necessary, i.e. if this results in hours being worked in breach of those prescribed, unless the driver can produce convincing proof that the excess did not result in a violation of the prescribed driving periods and breaks. A note to this effect for the parties concerned should certainly be included in a circular or better still on the form itself. In addition details of the total time required to carry out the operations and of the weekly rest periods laid down should also be requested and the form of declaration should be amended accordingly.

Since it is also important for the efficient working of the proposed control system that the employer should inform the driver of his duties and encourage him to carry them out it is desirable that a passage be included in the form of declaration to the effect that the driver has been fully informed of the times to be observed.

Finally, it is important for a positive assessment of the effectiveness of the system that the exemption from the duty to keep an individual logbook is only to be granted temporarily and that in the case of a breach of the prescribed times, penalties are to be imposed, in particular the withdrawal of the exemption.

It should also be borne in mind when assessing the proposed system of supervision that Article 14a is intended to apply comparatively easy rules, so as to ease the situation in respect of short-distance transport operations while at the same time containing the chances of abuse from the outset. Furthermore this is only a transitional measure until the general introduction of recording equipment (1 January 1978) which will provide a totally satisfactory means of control even for this type of transport operation.

It should be noted that the proposed control system naturally cannot be applied to vehicles which, pursuant to the Annexes to Regulation (EEC) No 1463/70, are obliged to use a tachygraph, because there is no duty to keep an individual logbook in the case of these vehicles ; from 1 January 1980 at the latest this will be compulsory for all vehicles.

3. For the above reasons and subject to the reservations stated the Commission gives a favourable opinion to the Italian draft derogations relating to the exemption from the duty to keep an individual logbook for certain types of local transport operation.

Done at Brussels, 5 May 1976.

For the Commission

Carlo SCARASCIA MUGNOZZA

Vice-President