EUROPEAN COMMISSION Brussels, 18.10.2018 COM(2018) 698 final REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation in 2015-2016 of Regulation (EC) No 561/2006 on the harmonisation of certain social legislation relating to road transport and of Directive 2002/15/EC on the organisation of the working time of persons performing mobile road transport activities {SWD(2018) 439 final}



I.Introduction This report gives an overview of the implementation of the EU social rules in road transport in the Member States for the period of 1 January 2015 until 31 December 2016. It also highlights the key challenges in enforcement and application of the relevant legal provisions, which are set out in the following four legislative acts: 1) Regulation (EC) No 561/2006 (also known as the Driving Time Regulation) establishing the minimum requirements on daily and weekly driving times, breaks and daily and weekly rest periods; 2) Directive 2002/15/EC (also known as the Road Transport Working Time Directive) laying down the rules on the organisation of the working time of mobile workers. It establishes the requirements on maximum weekly working times, minimum breaks in work and on nighttime working. It applies to drivers falling within the scope of the Driving Time Regulation; 3) Directive 2006/22/EC (also known as the Enforcement Directive) establishing minimum levels of roadside checks and controls at the premises of transport undertakings to verify compliance with the provisions of the Driving Time Regulation; 4) Regulation (EU) No 165/2014 (also known as the Tachograph Regulation), which sets the requirements on the installation and the use of tachographs in vehicles in scope of the Driving Time Regulation. This report, based on Article 17 of the Driving Time Regulation and on Article 13 of the Road Transport Working Time Directive , comprises quantitative and qualitative data on checks carried out at roadside and at premises of undertakings as well as on offences detected. It also states what use has been made of the exceptions provided for in Article 13 of Regulation (EC) N° 561/2006 . Finally, it contains qualitative information on the implementation of the Road Transport Working Time Directive. A Commission Staff Working document is complementing the Commission report with supplementary information on penalties, cooperation between Member States, comments from enforcement authorities and other more detailed statistics. The report is structured into four sections: Section I summarises the quality and timeliness of national data submissions. Section II provides the analysis of the national data on checks and offences whereas Section III gives a descriptive outline of the implementation by the Member States of Directive 2002/15/EC. Finally, section IV draws the main conclusions of this report. Data submission The national reports on the implementation of the provisions of Directive 2002/15/EC and Regulation (EC) No 561/2006 must be submitted by means of the revised standard reporting form established by the Commission Implementing Decision of 30 March 2017 . All Member States have submitted their national data though many not timely. The quality of data continues to improve as regards Regulation (EC) No 561/2006. Almost all Member States provided the requested breakdown of detailed statistics on controls of compliance carried out at roadside and at premises. However, more improvement can be made as regards information provided on penalties, international cooperation, changes to national laws or conclusions drawn. In addition, Member States informed the Commission of the national exceptions granted from the application of the provisions on driving times, breaks and rest periods in accordance with Article 13 of Regulation (EC) No 561/2006. The updated list of exceptions is included in the accompanying document and available on the Commission's website . As regards the information on the implementation of the Road Transport Working Time Directive, not all Member States have submitted such information and only a few Member States provided statistical data on controls and their outcomes . Many Member States indicated that no changes had occurred during the reporting period regarding their national legislation to explain the lack of information provided. Overall, very little updated quantitative data were provided by Member States, which make an assessment difficult. Therefore, in order for the report to satisfy the requirements set out in Article 17 of the Driving Time Regulation, the Commission insists that more extensive qualitative and quantitative data regarding the implementation of Directive 2002/15/EC and its enforcement should be provided for the next reporting period. II. Implementation of Regulation (EC) No 561/2006 in the EU 1.Checks Article 2 of Directive 2006/22/EC requires Member States to organise a system of appropriate and regular checks at the roadside and at the premises of undertaking of all transport categories. These checks should cover each year a large and representative sample of mobile workers, drivers, transport undertakings and vehicles. The Article also establishes that a minimum number of checks to carry out shall cover at least 3% of days worked by drivers of vehicles falling within the scope of Regulation No (EC) 561/2006. The national data submitted to the Commission shows that a total number of working days checked in the EU dropped by around 12.8%, meaning a decrease from 151 million to 131.7 million of working days checked. This is a sharper decrease compared to the decrease of 4.8% between the previous reporting periods 2011-2012 and 2013-2014. However, looking at the national figures it seems that this decrease can be mainly explained by a drop of working days checked in three Member States . More details can be found in the accompanying report. As illustrated in Figure 1 below, the overall EU average of working days checked is 6.3% (it was 7% in 2013-2014), which is twice higher than what is required under the Directive. Most of the Member States checked more working days than the minimum required by the Directive. Nevertheless, three Member States have not met the threshold of 3%, namely Greece, the Netherlands and Malta. Whereas Malta and the Netherlands were slightly below the threshold, the number of working days checked reported by Greece is significantly below the threshold and continues to fall compared to previous years. The Commission will continue monitoring the developments in these Member States and, starting from the most severe cases, will take action to assure the correct application of Directive 2006/22/EC. Article 2 of Directive 2006/22/EC sets out the ratio of the working days to be checked at the roadside and at the premises, namely 30% and 50% respectively. It should be emphasised that the calculation of this proportion is based on the number of checks actually performed by enforcement authorities and not on the minimum number of working days to be checked. Looking at the Member States who have met the threshold, only six have the required balanced share between premises and roadside checks. On average, 74% of the working days checked have been done at the roadside whereas 26% were checked through inspections at the premises. This represents a slight increase in the premises checks compared to last year, where it was 23%. As already highlighted in the last report, Ireland was below the roadside threshold of 30% with only 7%. For more details on the national share of roadside and premises checks see Figure 2.

1.1 Roadside checks In total, 8,162,703 vehicles and 5,846,011 drivers were checked on the roadside throughout the EU. The high discrepancy between these two numbers can be explained by incomplete data submitted by Germany and Finland , which comprise only part of the total number of drivers checked on the roadside. Compared to the last report for years 2013-2014 the number of vehicles checked increased by 24%. This is mainly due to a significant increase in vehicles checked reported by Germany and Finland compared to the last reporting period . The number of drivers checked decreased by 22% compared to 2013-2014. However, this can also be mainly explained by the considerable decrease in the number of drivers that was reported by Germany between 2013-2014 and 2015-2016 as well as the cumulative effect of smaller decreases in several other Member States . Based on the country of registration of the vehicle, 63% of the vehicles checked in the EU were national vehicles, 32% were from other EU Member States and 6% were vehicles registered in non-EU countries . Overall, most of the vehicles checked on the road (91% of the total) are carriers of goods whereas only 9% were carrying passengers. More details are available in the accompanying document under Title 422. In 2015-2016, 72% of the vehicles checked at the roadside were equipped with a digital tachograph. Hence, there are no grounds for raising the threshold of checks from 3% to 4%, as this should only be done if 90% of checked vehicles are equipped with digital tachographs . Figure 1: Percentage of working days checked per Member State Figure 2: Share of roadside and premises checks based on working days checked per Member State 1.2 Check at the premises In total, 146,967 transport undertakings were checked over the 2015-2016 period, which is a similar result compared to 2013-2014 . During those controls at premises, around 34.8 million working days were checked which represents a slight increase of 1% compared to the previous report. Overall, Member States checked around 663,000 drivers during 2015-2016, which is 12% fewer drivers checked compared to 2013-2014. 2. Offences Almost all Member States provided data on offences detected, but not all provided details on the types of infringements. The total number of offences reported was around 3.46 million, which constitutes an increase by 6% compared to the last report (3.3 million). The slight increase may be explained by the fact that Latvia has provided for the first time the number of offences , which would almost offset the difference with the last report. Whereas offences detected at the premises rose by 19%, offences detected at the roadside decreased by 3%. The share of roadside offences decreased from 63% to 58% of total offences detected compared to the last report. The share of types of infringements remained similar, with some slight changes. Figure 3 below illustrates the share of infringements detected in 2015-2016 by the type of provision infringed. Compared to the last report, offences regarding breaks and driving time respectively decreased from 23% to 21% and 16% to 13%, whereas offences of the driving time records rose from 17% to 24%. Out of all offences detected throughout the EU at both roadside and premises, offences for rest periods constitute 24% (25% in the last report), recording equipment represent 11% (10% in the last report) and the lack/availability of records for other work constitute 7% (8% in the last report). When looking at the developments since 2007, which are presented in Figure 4, it appears that infringements found on breaks and driving times have gradually decreased. Instead, there has been a continuous increase in offences detected as regards driving time records, which rose from 14% to 24%, whereas infringements on rest remained high over the years. The average offence rate, which is calculated on the basis of 100 working days checked at premises and roadside checks, has increased from 2.17 in 2013-2014 to 2.6. The detection rate at premises remains twice as high as the detection rate at the roadside, which illustrates that checks at the premises are much more efficient than ad hoc roadside controls. Figure 3: Categories of infringements at roadside and premises 2015-2016

Figure 4: Categories of infringements at roadside and premises over the last 10 years. 2.1 Offences detected at roadside In 2015-2016, around 2 million of offences were detected at the roadside, which represents a decrease of around 3% compared to the last reporting period. The EU average of offences detected at the roadside is 2.17 per 100 working days checked, which has slightly increased compared to 1.77 in the last report. On average, 58% of offences were found to be committed by domestic drivers. 2.2 Offences detected at the premises Offences detected at the premises were around 1.48 million, which represents an increase of 21% compared to the last report. The average offence rate per 100 working days checked is 4.19 which increased by 18% compared to last average of 3.54 in 2013-2014. The rise could be partly explained by the high offence rate communicated for the first time by Latvia . In the past, offence rates have shown a trend to decrease from 8.65 in 2009-2010 and 5.29 in 2011-2012. The average offence rate detected at premises per undertaking has almost tripled from 12.77 to 36.57. This can mainly be explained by the fact that this is the first reporting period for which the Commission received this information from all Member States . 2.3. Number of enforcement officers and equipment to analyse tachographs Over the period 2015-2016, 61,503 control officers were involved in checks throughout the EU. This number remained stable compared to 2013-2014. In the EU, during the reporting period 2015-2016, 23,725 control officers were trained to analyse the digital tachograph. This number decreased by 5.7% when compared to 2013-2014. There is also a decreasing trend regarding the units of equipment provided to control officers to analyse the tachograph as it decreased by 5.5% compared to the last report and given that the decrease between 2013-204 and 2011-2012 was of 8%. 4. Cooperation between Member States According to Article 5 of Directive 2006/22/EC, Member States are obliged to undertake not less than six concerted roadside checks per year with at least one other Member State. Four Member States did not provide information on the number of concerted checks. Out of the Member States that did provide information, 15 Member States met the required number of concerted checks per year. The reported figures on joint enforcement activities are very similar to those from the 2013-2014 report. Cooperation between Member States concerns mostly neighbouring Member States. Also, as for the last reporting period, just under half of the Member States indicated that the concertation takes place within the framework of Euro Contrôle Route (ECR). Several Member States indicated that ECR had proven to be useful in exchanging information regarding best enforcement practices, new technologies and data exchange. Some Member States also mentioned their active participation in hosting sessions to share experiences such as workshops, master classes and bilateral roadside checks. The cooperation between Member States based on concerted checks, joint training initiatives or exchanges of experience and information, plays a crucial role in achieving the objectives of the social legislation in the road transport sector i.e. improved level playing field, road safety and harmonisation of working conditions. Therefore, the European Commission has tabled a legislative proposal as part of the first Mobility Package adopted in May 2017 to promote and reinforce the cooperation and mutual assistance between Member States and ensure more effective and consistent enforcement of the rules in force . In addition, in 2018 the Commission adopted a proposal to create a European Labour Authority (ELA), whose overarching objective is to ensure fair labour mobility in the Internal Market . One of the main tasks of ELA would consist in supporting cooperation between Member States in the cross-border enforcement and facilitating joint inspections including in the area of EU social rules in the road transport sector. In practice, this authority would provide national authorities with operational and technical support to exchange information, develop day-to-day cooperation procedures and facilitate Member States in carrying out joint inspections. III. Data analysis on the implementation of the Road Transport Working Time Directive (Directive 2002/15/EC) 1.Introduction This chapter deals with the implementation by Member States in 2015-2016 of Directive 2002/15/EC, also referred to as the “Road Transport Working Time Directive”.

According to Article 13 of this Directive, Member States are obliged to submit a report on its implementation to the Commission every two years, indicating the views of employees and employers at national level. 2.The scope of Directive 2002/15/EC The Directive establishes rules governing, inter alia, adequate breaks during the working period, the maximum weekly working time and night work. Its provisions supplement the rules on driving times, breaks and rest periods established by Regulation (EC) No 561/2006. As this Directive lays down certain provisions concerning hours of work that are specific to the road transport sector, it is regarded as a lex specialis to the general Directive 2003/88/EC on working time, which establishes basic requirements for the organisation of the working time of workers in all sectors. Furthermore, the Charter of Fundamental Rights of the European Union contains provisions concerning working time and working conditions under its Article 31, which have to be respected when implementing EU law. A number of basic protection provisions of the general Working Time Directive, including rules on annual leave and free health assessment for night workers, are also applicable to mobile workers in road transport. 3.Submission and quality of national reports

As for the previous reporting period, a common reporting format prepared by the Commission was sent to Member States in order to facilitate the reporting exercise and reduce administrative burden. Five Member States did not submit any information regarding the implementation of Directive 2002/15/EC. The quality of the information submitted by other Member States varies significantly, and, many Member States provided scarce and incomplete information . Some Member States explained that no changes had happened between the two reporting periods. Nonetheless, up-to-date statistical data on controls and infringements are missing in the reports submitted by a considerable number of Member States. The most complete reports generally tend to include information on institutional organisation, implementation challenges and some quantitative data. However, due to the significant number of incomplete submissions, the results of this analysis cannot be considered as representative for the whole European Union. Additional efforts are expected from the Member States for the next reporting period regarding information on the implementation of Directive 2002/15/EC, which should allow for a more comprehensive assessment. The Commission may decide to take legal actions against Member States for failure to comply by Member States with the requirement to submit the information specified in the Commission Decision establishing a reporting format . 4.Implementation aspects in Member States None of the Member States having submitted a report indicated any change in the legislation implementing Directive 2002/15/EC during the years 2015-2016. Overall, in most Member States, the last amendments of the national legislation were related to the inclusion of self-employed drivers within the scope of their national law on working time in the road transport sector and were already reported in the 2013-2014 report. No trend could be identified regarding implementation issues related to Directive 2002/15/EC. These rather relate to the national contexts and specific issues arising in some Member States. For instance, in its report, Italy mentions issues regarding the need for clarification of some definitions laid down in the Directive. This relates to the “time devoted to all road transport activities” and “periods of time during which the mobile worker cannot dispose freely of his time”. In the Czech Republic, a new work pattern by which one employee (driver) works for two employers (transport undertakings) gave rise to difficulties in implementing the Directive. Indeed, such practices were reported as being difficult to prove as only a transport undertaking subject to Regulation (EC) No 561/2006 is required to request a copy of a working-time record from another employer. As regards the monitoring of implementation of the Directive, several Member States emphasised the importance of providing advice and guidance to the sector on how to comply with the complexity of the social rules in road transport. For instance, Lithuania indicated that guidance on requirements and instructions is issued to employers. Similarly, Irish authorities use a stepped approach involving a combination of advice and guidance and the use of formal directions prior to taking the prosecution route. In Sweden, during inspections, authorities try to establish a dialogue with the employer or self-employed driver to ensure that they understand the rules and take the necessary measures to follow them. This approach was considered valuable by Slovakia that reported that the situation with respect to training and knowledge of the law among drivers and employers had improved compared with previous years. Finally, as regards judicial interpretation by national courts, none of the Member States reported any significant national court decisions interpreting Directive 2002/15/EC during 2015-2016. 5.Offences against working time rules Some Member States informed about the possibility in the first instance, when the infringement is detected, to order its rectification within a defined period. In cases were the deficiency fails to be addressed, the enforcement authorities will proceed with their respective sanctions. This consists in initiating administrative proceedings in Austria and Slovakia and/or issuing a fine in Estonia and Finland. Only eight Member States provided quantitative data on offenses detected which is even less than for the last reporting period where ten Member States had provided this information. The insufficient number of contributions does not allow for any relevant EU-wide conclusions to be drawn. All Member States are therefore invited to include this data in the next reports. 5. Stakeholders' views on implementation of Directive 2002/15/EC Only ten Member States clearly indicated that stakeholders were consulted in the framework of this reporting exercise . This number is stable compared to the last report but still low compared to previous years . In all Member States, this consultation consisted in getting the views of representatives of employers and trade unions. In six out of ten Member States, social partners were consulted but their views did not give rise to a specifically dedicated section of the report . They were rather incorporated throughout the document or, in a few cases, the report only mentioned that social partners did not have any comments. This makes it impossible to further analyse opinions from social partners as as their replies do not constitute a representative sample . The Commission would like to remind Member States that Article 13(1) of Directive 2002/15/EC requires them to include the views of both sides of industry as part of this reporting exercise. IV. Conclusions Over the 2015-2016 period, all but three Member States , have met the minimum threshold of working days to be checked. The largest share of working days checked is still performed during roadside checks and even though the share at premises is growing, only six out of 28 Member States have reached the required distribution of at least 50% of checks at premises and at least 30% at the roadside. Data submitted by Member States for this reporting period, confirm the trend of a continuous decrease of the number of working days checked. For 2015-2016, this can be mainly explained by a significant decrease of working days checked in France, Germany and Romania. This also led to a slight decrease in the average of working days checked at EU level. Even though the number of working days checked has sharply decreased, the number of offences detected has increased slightly. The increase is to a great extend due to a larger number of offences detected in one Member State but could also mean that checks became more effective in general. In contrast to the roadside checks, detection rate at the premises has increased and is twice as high as on the roadside. The detection rate per transport undertaking checked has tripled. This may be a combined effect of more effective enforcement and more offences committed. Detection rate is varying significantly throughout the EU and only a small group of Member States have reported over two thirds of offences detected in the EU. It is worth emphasising that some Member States, which have very low offence rates, are among the top seven Member States with the highest percentage of working days checked. The shares of the different types of infringements remain similar compared to the last reporting period. There are, however, two developments to be noted: the number offences detected on manipulation of the tachograph has risen compared to the other types of offences detected at the roadside, and checks at premises show that there is a significant increase in offences related to driving time records, which are either incomplete or incorrect. This may indicate that undertakings and/or drivers experience difficulties with storing the relevant data appropriately. Enforcers also reported that significantly lower fines for missing time records compared to the fines for excessive driving times or insufficient rest periods could encourage drivers and operators to hide the records which could reveal infringements leading to higher penalties. The entry into force of Commission Regulation (EU) 2016/403 on 1 January 2017 with regard to the classification of serious infringements of the Union rules may deter developments as missing driving time records are classified as a very serious infringement and thus should lead to fines that are proportionate to the level of seriousness. The increase in offences detected on misuse and manipulation of the tachograph also shows that there is a need to deploy, as soon as possible, a more tamper proof version of the recording equipment, namely the smart tachograph, which will be mandatory in new vehicles from 15 June 2019 onwards. The smart tachograph will have a new set of communication capabilities that are more advanced than the current digital tachograph, such as satellite geo-localisation or short-range communication for the transmission of information to enforcement authorities. On concerted checks, 15 Member States fulfilled the requirement of six concerted joint checks per year, which is similar to the findings of the last report. Overall, Member States stressed that concerted checks were a valuable way to share, maintain and improve expertise and knowledge. The Commission is therefore encouraging Member States to further strengthen their efforts in improving international cooperation. The Commission proposal tabled as part of Mobility Package I envisages boosting administrative cooperation between Member States, which should also lead to a better exchange of best practices and expertise in the field of enforcement. This includes a proposal for more structured and regular exchange of data and information between national enforcement authorities concerning enforcement practices and verifying compliance of operators active in cross-border operations. Cooperation between enforcers and joint inspections are also among the tasks of the newly proposed European Labour Authority that should help coordinating Member States’ efforts in the field.