EN Official Journal of the European Union C 241/65

Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the European Parliament and of the Council on minimum conditions for the implementation of Directive 2002/15/EC and Council Regulations (EEC) Nos 3820/85 and 3821/85 concerning social legislation relating to road transport activities’

(COM(2003) 628 final – 2003/0255 (COD))

(2004/C 241/17)

On 11 December 2003 the Council of the European Union decided to consult the European Economic and Social Committee, under Article 71 of the Treaty establishing the European Community, on the ‘Proposal for a Directive of the European Parliament and of the Council on minimum conditions for the implementation of Directive 2002/15/EC and Council Regulations (EEC) Nos 3820/85 and 3821/85 concerning social legislation relating to road transport activities’.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 10 May 2004. The rapporteur was Mr Simons.

At its 409th plenary session (meeting of 3 June 2004), the European Economic and Social Committee adopted the following opinion by 136 votes to one with five abstentions:

1. The proposal's objectives and content

1.1 The aim of the proposal is to improve the frequency, quality and harmonisation of checks on compliance with social legislation in road transport, thereby promoting compliance. Respect for these rules furthers traffic safety and fair competition in road transport and also benefits the health and safety of drivers.

1.2 The proposal states that the number of checks is to be raised so as to cover at least three percent of the days worked by drivers. It also makes provision for a procedure to increase this minimum percentage still further in the future. At least 30 percent of these checks must be carried out at the roadside and at least 50 percent on company premises.

1.3 The following measures are to enhance the quality of checks and ensure that checks are harmonised: the content of the checks is to be the subject of Community rules; better training is to be provided for the inspecting officers; checks are to be aligned at international level more frequently; the checks are to be coordinated within each Member State; information is to be exchanged between countries; the classification of risks and of the seriousness of offences is to be harmonised; and a committee is to be set up by the Commission to provide for a uniform interpretation of the rules and promote the quality and harmonisation of the checks.

2. General comments

2.1 The Committee regards good checks as a vital link in a chain starting with the adoption of good legislation and ending with effective penalties. Since social legislation in road transport is in a state of turmoil at the moment, with both the rules on driving and rest periods and those on recording equipment (tachograph) being affected, the Committee expressly welcomes the moves to revise the rules applicable to the checks.

2.2 The Committee fully endorses the aims of the Commission's proposal. This applies to both the better enforcement sought and the harmonisation of the rules. The Committee would point out that this harmonisation requires an unambiguous interpretation of the rules and agreements between Member States regarding the seriousness of offences.

2.3 Since the frequency of checks currently varies considerably from one Member State to another, the Committee supports the proposal that at least 3 percent of the days worked by drivers should be checked in every Member State. The Committee is aware that this minimum requirement can place a serious burden on the administrative machinery in a large number of Member States, and especially the new Member States. The Committee would also point out that according to the Commission's biennial reports on the checks and their findings, it took many of the current Member States a long time to respect the current minimum requirements governing checks. It therefore thinks that compliance with the new provision must go hand-in-hand with further demands on the Member States regarding the capabilities of their machinery for carrying out checks, inter alia in order to avert the danger mentioned below in point 2.4. The Committee welcomes in this connection the fitting of digital tachographs, which it thinks will help in no small measure to satisfy the proposed provision. However, since it would seem to be virtually impossible for the equipment to be introduced across-the-board by the 5 August deadline stipulated in the relevant legislation (1) the Committee would urge the European Commission not to delay in proposing clear deferment rules so as to avoid unjust checks and differences of interpretation between countries and so that the industry knows where it stands. There is a letter from Commissioner Loyola de Palacio to the Member States on this matter which is clear in itself but which is inadequate from a legal point of view.

2.4 The Committee agrees with the Commission that there should be more checks on company premises than at roadsides. Checks on company premises can cover more points, and they can provide a picture of the extent to which a company as a whole abides by the rules. On the other hand, the Committee fears that the obligation to check many driver days on company premises will result in inspecting officers preferring to visit large companies, because within a given period they can check more driver days there than in a small or one-man company. This being so, the Committee considers the proposed 50 percent figure to be too high to begin with. Unless Member States approve supplementary provisions regarding their minimum vehicle-checking capabilities, 40 percent would be a more appropriate figure.

2.5 The Committee has serious doubts about the effectiveness of the proposed roadside checks on certain working time provisions. Directive 2002/15/EC allows derogations from the maximum weekly working time, the definition of working time or time on call can vary from country to country, and ‘night-time’ is not the same for everybody everywhere. The Committee therefore recommends that roadside checks on working time not be included in Annex I, Part A. Instead, the European Commission or the committee proposed in Article 13 of the directive can be given the task of carrying out a study on the benefit and feasibility of these checks. The Committee also thinks it would make sense for roadside checks on non-EU drivers at the wheel of EU-registered vehicles to include checking whether they are in possession of the driver attestation required under Regulation 881/92 (amended).

2.6 The Committee endorses the importance, from the competition point of view, of neutral checks and supports the provisions in the Commission proposal which seeks to secure this neutrality.

2.7 The Committee thinks that the 3 percent figure for checks can provide a good picture of the extent to which transport companies generally keep to the rules, thereby allowing the black sheep to be targeted for tracking down and prosecution.

2.8 The Committee welcomes the provisions in the Commission proposal which address matters of great importance for international drivers and international road transport companies, i.e. well-trained inspectors, uniform interpretation of the rules, harmonised classification of infringements according to their severity, and the possibility in every country of having a body to turn to in the event of problems.

3. Specific comments

3.1 Article 2(1)

Further to the general comment about roadside checks on working time provisions, the Committee notes that the times worked by mobile workers who are not drivers are frequently not recorded on a tachograph and that they do not necessarily tally with the times worked by drivers.

3.2 Article 9(3)

The Committee supports the basic idea that a system of suitable fines — which it assumes will be EU-wide — takes away the advantage enjoyed by a link in the transport chain as a result of an infringement. In view of the complications of such a system, especially in international transport, the Committee nevertheless thinks that it is often the driver or haulier who must pay the fine even when the advantage has been enjoyed by another party. Considerable legal problems are also raised in the Committee's view: by exceeding the driving time a driver may be able to reach home instead of taking a daily rest period en route close to home or may be able to take a ferry instead of having to wait hours for the next one. In the former case the only one to profit is the driver, but in the latter all links in the transport chain profit. The legal basis for penalising the shipper in the latter case is, however, extremely narrow in the Committee's view. The Committee foresees major objections and the possible distortion of competition if Member States are able to apply this basic idea as they see fit. It therefore recommends that agreement be reached on more detailed Community rules stipulating the situations in which penalties can be imposed on third parties, harmonising these penalties and standardising the proof required for the imposition of such penalties.

3.3 Article 9(4)

The Committee has three objections here:

— The daily driving time can easily be exceeded by more than 20 % because of circumstances beyond one's control such as queues, road works, accidents, etc. The 20 % margin must apply in cases where the limit is ‘repeatedly’ exceeded.

— Daily and weekly rest periods are defined in the Commission proposal as being of a certain minimum duration. Since these are definitions, a margin is not possible. The Commission is not consistent on this matter and should specify the minimum duration of a rest period in a separate article, as in the current Regulation 3820/85.

— Article 12 of Regulation 3820/85 permits the rules to be bent in special circumstances. Regulation 2135/98 (digital tachograph) offers limited possibilities for recording such cases. The proposed directive must, in the Committee's view, take explicit account of this.

3.4 Article 16

Further to the general comment regarding inadequate vehicle-checking capabilities and many Member States' dependence on the fitting of digital tachographs in most vehicles in order to ensure that the new minimum number of checks are carried out, and given the many uncertainties still surrounding the date of the digital tachograph's introduction, the Committee proposes that the 3 percent minimum percentage listed in the proposal should not come into force until two years after the introduction of the digital tachograph. For the rest, the Committee endorses the proposed date (1 January 2006) so that the Member States can prepare for harmonisation and cooperation.

3.5 The Committee calls on the Commission to involve the social partners at European level in the work of the Committee which it proposes setting up.

4. Summary and conclusions

4.1 The Committee fully endorses the aims of the Commission proposal. It regards good checks as a vital link in the chain starting with the adoption of good legislation and ending with effective penalties. The Committee thinks that the proposal is acceptable for the most part.

4.2 However, the Committee considers that better account must be taken of the current capacity of Member States' machinery for carrying out checks and of the limits imposed thereon. Therefore it recommends that the minimum percentage of working days checked on company premises be set at 40 percent for a transitional period.

4.3 The Committee welcomes the Commission's proposal that checks be carried out on 3 percent of the days worked. This can provide a good picture of the extent to which transport companies generally keep to the rules, thereby allowing the black sheep to be targeted for tracking down and prosecution. A further increase in the percentage of days checked will then no longer be necessary.

4.4 The Committee supports the basic idea of a system of suitable fines which takes away the advantage enjoyed by a link in the transport chain as a result of an infringement. These fines — laid down EU-wide — should provide an adequate legal basis for punishing others apart from the driver and/or haulier.

4.5 Given the many national and international derogations from the working time provisions, the Committee recommends that roadside checks on working time not be included in Annex 1, Part A. The Committee thinks that it makes sense for roadside checks to include a check on whether non-EU drivers at the wheel of EU-registered vehicles are in possession of the requisite driver attestation.

Brussels, 3 June 2004. The President of the European Economic and Social Committee Roger BRIESCH

(1) Regulation 2135/98.