Amended proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL concerning the organisation of working time for mobile workers performing road transport activities and for self-employed drivers

(presented by the Commission pursuant to Article 250(2) of the EC Treaty)

EXPLANATORY MEMORANDUM

A. Principles

1. On 25 November 1998 the Commission presented to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions, a Communication concerning the organisation of working time in the sectors and activities excluded from Directive 93/104/EC of 23 November 1993 (COM(1998) 662 final) [1]. Accompanying the Communication were a number of related proposals, one of which was a proposal for a specific directive for the road transport sector. On 25 March 1999 the Economic and Social Committee delivered a favourable opinion [2].

[1] OJ C 43, 17.2.1999, p.4.

[2] OJ C 138, 18.5.1999, p.33.

On 14 April 1999 the European Parliament delivered its opinion [3] in first reading on the Commission's proposal and confirmed this opinion in its resolution of 6 May 1999, following a change in procedure [4]. The Parliament adopted 21 amendments of which the Commission agreed to accept eight in full and four in part.

[3] OJ C 219, 30.07.1999, p.235.

[4] Doc 7927/99 ADD 1 PE-RE-38

On 21 June 2000 the Commission published a Communication to the European Parliament and the Council entitled Towards a safer and more competitive high quality road transport system in the Community (COM (2000) 364 final). In the Communication, the Commission indicated the state of progress in the Council debate on this issue, noting that there was a block in the Council discussions because of sharp differences on the issue of the inclusion of the self-employed drivers. The Commission indicated that to move the debate forward, it could accept the temporary exclusion of self-employed drivers from the proposed directive. Following discussions at the Council of Transport Ministers on 2 October 2000, it was agreed to explore this option further. The Commission is now amending its proposal to temporarily exclude the self-employed drivers in order to facilitate the adoption of the Directive.

2. The Commission has introduced the following amendments:

- Those amendments put forward by the European Parliament, which the Commission indicated it would accept, namely:- amendments 4-7, 11, 14 and 15 as well as part of amendments 1, 8, 12 and 16. The Commission also agreed to accept the principle contained in amendment 10.

- An amendment to temporarily exclude self-employed drivers from the scope of the proposal.

B Explanation of amendments

1. Two new recitals, Recital 11 and 12, have been added. Recital 11 points out that both employed and self-employed drivers will however continue to be subject to the provisions of Regulation (EEC) 3820/85 of 31 December 1985 concerning driving times and rest periods, which regulate a major element in driver's working time. On the basis of a forthcoming proposal of the Commission, this Regulation will be modified to establish an enhanced enforcement regime. Given this underlying enforcement background, Recital 12 announces the temporary exclusion of the self-employed drivers from the scope of the directive in line with the Commission's communication on this issue.

2. Recital 16 (now recital 18) is amended. The amendment incorporates part of amendment 1 of the European Parliament. It reflects more accurately the relevant reference in Regulation (EEC) 3820/85 of 20 December 1985 [5].

[5] OJ L 370, 31.12.1985, p.1.

3. Article 1(3) excludes self-employed drivers from the provisions of this Directive for a three year period starting from the end date for transposition of the Directive in line with the Commission's communication on this issue.

3. Article 2(a)(iii), (v) and (viii), as well as their counterparts in Article 2(b) have been changed to provide a fuller elaboration of what constitutes working time. The amendments incorporate amendments 4 to 7 of the European Parliament.

4. Article 2(2) is amended to clarify what is meant by advance notification. The amendment incorporates part of amendment 8 of the European Parliament.

5. Article 2(9) is added to specify what is meant by a self-employed driver. The amendment acknowledges the Parliament's request in amendment 10 for a separate definition but adopts the wider definition currently favoured in Council discussions.

6. Article 3(2) is amended to place the onus on employer and employee alike. The amendment incorporates amendment 11 of the European Parliament.

7. Article 7(2) is amended by deleting the provision on shorter hours and correspondingly longer reference periods. The amendment incorporates part of amendment 12 of the European Parliament.

8. Article 8(1)(b) and 8(2) are amended to clarify the system for keeping records. The amendments incorporate amendments 14 and 15 as well as part of amendment 16 of the European Parliament.

1998/0319(COD)

Amended proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL concerning the organisation of working time for mobile workers and self-employed drivers performing road transport activities

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 71 and 137 thereof,

Having regard to the proposal from the Commission, [6]

[6] OJ C 43,17.2.1999, p.4.

Having regard to the opinion of the Economic and Social Committee, [7]

[7] OJ C 219, 30.07.1999, p.231.

Having consulted the Committee of the Regions,

Acting in accordance with the procedure laid down in Article 251 of the Treaty [8],

[8] OJ C 219, 30.7.1999, p.235 and OJ C 279, 1.10.1999, p.270

Whereas:

(1) Article 71 of the Treaty provides that the Council shall adopt, amongst other things, common rules applicable to road transport as well as measures designed to improve road safety; whereas this Article provided the proper legal base in particular for the adoption of common rules concerning working time for self-employed drivers in road transport;

(2) Article 137 of the Treaty provides that the Council shall adopt by means of Directives, minimum requirements for encouraging improvements, especially in the working environment, to ensure a better level of protection of the safety and health of workers;

(3) Council Regulation (EEC) No 3820/85 of 20 December 1985 [9] on the harmonisation of certain social legislation relating to road transport has laid down common rules on driving times and rest periods for drivers; whereas this Regulation does not cover other aspects of working time for road transport;

[9] OJ L 370, 31.12.1985, p.1.

(4) Council Directive 93/104/EC of 23 November 1993 [10] concerning aspects of the organisation of working time has laid down minimum safety and health requirements for the organisation of working time applicable to all sectors of activity, both public and private with the exception of air, rail, road, sea, inland waterway and lake transport amongst others;

[10] OJ L 307, 13.12.1993, p.18.

(5) The Council recognised in the preamble to that Directive that it may be necessary to adopt separate measures with regard to the organisation of working time in certain sectors and activities which are excluded from the scope of the Directive;

(6) It is therefore necessary in order to ensure improved road safety, to avoid distortion of competition, and to promote enhanced working conditions for road transport activities, that all mobile workers performing road transport activities and self-employed drivers should operate under a set of minimum standards on working time;

(7) The provisions in this Directive are more specific to road transport than certain provisions in Directive 93/104/EC as amended and hence under Article 14 of the latter Directive these provisions take precedence;

(8) In order to improve road safety, to avoid distortion of competition and to ensure the safety and health of these mobile workers and self-employed drivers, they must be granted minimum daily and weekly periods of rest, and adequate breaks; whereas it is also necessary to place a maximum limit on weekly working hours;

(9) It is necessary to indicate that the provisions relating to rest periods and breaks within Council Regulation (EEC) No 3820/85 on the harmonisation of certain social legislation relating to road transport continue to apply to certain mobile workers and self-employed drivers;

(10) The above Regulation's provisions on driving time are supplemented by the working time provisions of this Directive;

(11) Regulation (EEC) 3820/85 sets maximum driving times and minimum rest periods for all drivers, providing an enforceable check for both employed and self-employed drivers for the major element in their working time;

(12) It is therefore considered expedient to temporarily exclude self-employed drivers from the ambit of the proposal;

(13) In spite of intensive negotiations between the social partners, an agreement on working time has not been possible in respect of mobile workers in road transport, to be put into effect by means of a Council Decision on a proposal from the Commission, in accordance with Article 4(2) of the Agreement on Social Policy;

(14) Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 amending Directive 93/104/EC to cover sectors and activities excluded from that Directive [11] amends Directive 93/104/EC to ensure its application to non-mobile workers in the sectors and activities currently excluded, and to provide basic protection to mobile workers performing road transport activities; whereas this basic protection includes the existing rules an annual leave and certain basic provisions for night workers including health assessment;

[11] OJ L 195, 1.8.2000, p.41.

(15) Research has shown that the human body is more sensitive at night to environmental disturbances and also to certain burdensome forms of organisation and that long periods of night work can be detrimental to the health of workers and can endanger their safety and also road safety in general;

(16) As a consequence there is a need to limit the duration of periods of night work, including overtime, and to ensure records of working time are kept by employers for night workers and for mobile workers exceeding the 48-hour average weekly maximum;

(17) Night workers should receive appropriate compensation for their activity and should not be disadvantaged as regards training and promotion opportunities;

(18) Regulation (EEC) No 3820/85 permits drivers covered by Article 6(1), fourth and fifth subparagraphs, a driving time of up to 65 hours per week; whereas the driver's weekly working time is limited to 60 hours per week according to Article 3 of this Directive; whereas the drivers covered by Article 6(1), fourth and fifth subparagraphs of cited Regulation (EEC) No 3820/85 will have to be able to continue driving up to 65 hours, provided that the average maximum weekly working time of 48 hours over four months is not exceeded;

(19) The Commission should monitor the implementation of this Directive and developments in this fields in the Member States and submit to the Council, the European Parliament and the Economic and Social Committee a report on the application of the rules;

(20) It is necessary to provide that certain provisions may be subject to derogations implemented, according to the case, by the Member States or the two sides of industry; whereas as a general rule, in the event of a derogation, the workers concerned must be given equivalent compensatory rest periods;

(21) In accordance with the principles of subsidiarity and proportionality as set out in Article 3b of the Treaty, the objectives of the proposed action as outlined above cannot be adequately achieved by the Member States, in that the objective is to ensure that all workers in the Community enjoy adequate protection of their health and safety, with regard to working time; whereas, in view of the scale and impact of the proposed action, these objectives can best be achieved at Community level by the introduction of minimum provisions applicable to the entire European Community; whereas the present Directive constitutes no more than the minimum necessary to achieve these objectives,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Purpose and Scope

1. The purpose of this Directive is to establish minimum health and safety standard in relation to the organisation of working time in road transport and to improve road safety.

2. This Directive applies to all mobile workers performing road transport activities employed by undertakings established in a Member State and to self-employed drivers.

3. The provisions of this Directive shall apply to self-employed drivers three years after the end date for transposition of the Directive by Member States fixed by Article 11.

4. This Directive contains more specific Community provisions pursuant to Article 14 of Council Directive 93/104/EC as regards mobile workers of undertakings engaged in road transport activities and therefore the latter's provisions take precedence over the relevant provisions of Council Directive 93/104/EC as amended by Council Directive 2000/34/EC.

5. This Directive applies without prejudice to the provisions of Regulation (EEC) 3820/85.

Article 2 Definitions

1. For the purposes of this Directive, 'working time' means:

(a) in the case of self-employed drivers, the time during which the following activities are carried out:

(i) driving;

(ii) loading and unloading;

(iii) checking or supervising passengers getting in/out of the bus/coach;

(iv) cleaning of the vehicle;

(v) inspection of the vehicle and monitoring of loading and unloading;

(vi) other work to ensure the safety of the vehicle, the load or the passengers;

(vii) technical maintenance of the vehicle;

(viii) administrative formalities with police, customs, immigration officers, etc.

(b) in the case of mobile workers, the time from the beginning to the end of work, that is all activities or standby duty, excluding breaks.

Activities include, in particular:

(i) driving;

(ii) loading and unloading;

(iii) checking or supervising passengers getting in/out of the bus/coach;

(iv) cleaning of the vehicle;

(v) inspection of the vehicle and monitoring of loading and unloading;

(vi) other work to ensure the safety of the vehicle, the load or the passengers;

(vii) technical maintenance of the vehicle;

(viii) administrative formalities with police, customs, immigration officers, etc.

(ix) administrative work.

2. "Standby duty" means the time during which the mobile worker is at his place of work, ready to take up full working duties, where appropriate on his own initiative, and generally with certain tasks associated with being on duty.

"Standby period" means the time during which the mobile worker has no duties, while available for taking up work. Stand-by periods must be known at least one day in advance by the mobile worker and prior to the completion of the previous shift in accordance with the conditions agreed between social partners at the level and under the terms provided in the legislation of the Member States.

Without prejudice to the legislation of the Member States or agreements between social partners requiring such periods to be compensated or limited, stand-by periods shall not be considered as working time in the meaning of Articles 3 and 6 of this Directive.

3. "Mobile workers" are all those workers, including trainees and apprentices, who are employed by an undertaking engaged in road transport and form part of the travelling personnel.

4. "Rest period" means any uninterrupted period of at least one hour during which the mobile worker or self-employed driver may freely dispose of his time.

5. "Week" means the period between 00.00 hours on Monday and 24.00 hours on Sunday.

6. "Night time" means a period of at least seven hours, as defined by national law, and in any case encompassing the period between midnight and 5 a.m.

7. "Night work" means work during a working period which includes more than two hours of night time.

8. "Night workers" means mobile workers or self-employed drivers who:

(i) usually perform night work, or:

(ii) perform a certain proportion of their annual working time during night time. This proportion shall be defined by the legislation of the Member States in consultation with the social partners.

9. "self-employed driver" means anyone whose main occupation is to carry passengers or goods by road at a customers request.

Article 3 Maximum weekly working time

Member States shall take the measures necessary to ensure that:

1. the average weekly working time may not exceed 48 hours. The maximum weekly working time can be extended to 60 hours only if within four months an average of 48 hours per week is not exceeded. This is without prejudice to Article 6(1), paragraphs 4 & 5 of Regulation (EEC) 3820/85, provided that the self-employed drivers and mobile workers concerned do not exceed the average maximum weekly working time of 48 hours over 4 months.

2. for mobile workers, working time for different employers is the sum of the working hours. The employer shall ask the mobile workers in writing for an account of the time worked for another employer. The mobile worker shall supply this information in writing.

Article 4 Breaks

Member States shall take the measures necessary to ensure that, without prejudice to the level of protection provided by Council Regulation (EEC) No. 3820/85 on the harmonization of certain social legislation relating to road transport, mobile workers shall in no circumstances be employed and self-employed drivers shall in no circumstances carry out the activities referred to in Article 2(1) for more than six consecutive hours without a break. Working time shall be interrupted by breaks of at least 30 minutes, if working hours total between six and nine hours, and of at least 45 minutes, if working hours total more than nine hours. The breaks referred to in the first sentence may be divided up into periods of at least 15 minutes.

Article 5 Rest periods

1. Those self-employed drivers and mobile workers subject to Council Regulation (EEC) No. 3820/85 shall have the rest periods provided therein.

2. Member States shall take the measures necessary to ensure that self-employed drivers and mobile workers other than those referred to in paragraph 1 have an uninterrupted period of rest at the end of their daily work of at least 11 hours.

3. The duration of the period of rest referred to in paragraph (2) may be reduced by up to one hour, if each such reduction is compensated either within the following calendar month or within four weeks by the extension of another rest period to at least 12 hours.

4. Member States shall take the measures necessary to ensure that for self-employed drivers and mobile workers other than those referred to in paragraph 1, after no more than 6 consecutive daily working periods, the period of rest in paragraph (2) shall be extended by 24 consecutive hours to form a period of weekly rest.

Article 6 Night workers

Member States shall take the measures necessary to ensure that:

1. the daily working time of a night worker may not exceed eight hours. It may be extended to ten hours only if an average of eight hours a day is not exceeded within two months; for periods in which night workers are not requested to perform night work, Article 3 shall apply;

2. compensation for night work shall be given in accordance with the national legislative measures, collective agreements and/or national practice, but such compensation is permitted only on condition that it is of such a kind as not to endanger road safety; and

3. those mobile workers who are night workers shall have the same access to further training and opportunities for promotion as other workers.

Article 7

Derogations

1. Derogations from Articles 3, 5 and 6 may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agreements between the two sides of industry, provided that the workers concerned are afforded equivalent periods of compensatory rest.

2. The option to derogate from Article 3 may not result in the establishment of a reference period exceeding six months, for the average maximum weekly working time of 48 hours.

3. For regular passenger transport services over distances of less than 50 kilometres, breaks may be split into periods of less than 15 minutes duration.

Article 8 Information and records1. Member States shall take the measures necessary to ensure that the employer of mobile workers takes the following action:

a. the employer shall post or display in an appropriate place in the undertaking's premises, a copy of this Directive, of the relevant national rules and statutory orders and of the collective agreements and company agreements, if applicable, made on the basis of this Directive; and

b. the employer shall record the working time of mobile workers . These records shall be kept for at least two years. If so requested, the employer shall provide workers with a copy of the record of hours worked.

2. Member States shall take measures necessary to ensure that the self-employed driver shall maintain a record of his working time when he does more than 48 hours of work per week or, if he is a night worker, more than 8 hours work per day. These records shall be kept for at least two years.

Article 9 More favourable provisions

This Directive shall not affect Member States' right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the health and safety of mobile workers, or self-employed drivers, or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the health and safety of mobile workers.

Article 10

Penalties

Member States shall determine the range of penalties applicable for infringements of national provisions made in implementation of this Directive and shall take all necessary steps to ensure that they are enforced. The penalties must be effective, commensurate with the infringement, and must constitute a sufficient deterrent. Member States shall notify these provisions to the Commission by the date mentioned in Article 12(1) at the latest, and any subsequent amendment thereto in good time.

Article 11 Final Provisions

1. Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive by [2 years after entry into force] or shall ensure by that date that the two sides of industry establish the necessary measures by agreement, with Member States being obliged to take any necessary steps to enable them to guarantee at all times that the provisions laid down by this Directive are fulfilled.

2. When Member States adopt the measures referred to in paragraph 1, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.

3. Without prejudice to the right of Member States to develop, in the light of changing circumstances, different legislative, regulatory or contractual provisions in the field of working time, as long as the minimum requirements provided for in this Directive are complied with, implementation of this Directive shall not constitute valid grounds for reducing the general level of protection afforded to mobile workers and self-employed drivers.

4. Member States shall report to the Commission every two years on the implementation of this Directive indicating the viewpoints of the two sides of industry. The information must reach the Commission not later than 30 September following the date on which the two-year period covered by the report expires. The two-year period shall be the same as that referred to in Article 16.2 of Council Regulation (EEC) No. 3820/85.

5. The Commission shall produce a report every two years on the implementation of this Directive by Member States and developments in the field in question. The Commission shall forward this report to the Council, the European Parliament and the Economic and Social Committee.

6. Member States shall communicate to the Commission the texts of the provisions of national law already adopted or being adopted in the field governed by this Directive.

Article 12

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament For the Council

The President The President