Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the harmonisation of certain social legislation relating to road transport

(presented by the Commission)

EXPLANATORY MEMORANDUM

A. Introduction

1. This proposal abrogates Regulation (EEC) N° 3820/85 and replaces it with a new Regulation (hereafter referred to as 'the Regulation') primarily in order to provide a clear, coherent text within which the rules currently contained in Regulation (EEC) N° 3820/85 may be clarified, simplified and updated. The Commission has been aware for some considerable time that there have been difficulties in interpreting and applying the provisions within Regulation (EEC) No. 3820/85. In the course of meetings with national experts, correspondence with individuals, road haulage and passenger transport associations and competent authorities over the years since the Regulation's introduction, the clear message has been that a common understanding of its provisions has remained elusive.

2. Regulation (EEC) 3820/85 currently provides a common set of Community rules for maximum daily and fortnightly driving times as well as daily and weekly minimum rest periods for all drivers of road haulage and passenger transport vehicles, subject to specified exceptions and derogations. The scope of operations regulated is tremendously diverse - it includes passenger transport and road haulage operations, both international and national, long distance and short distance, drivers for own account and for hire and reward, employees and self-employed. It seeks to combine a uniformity of basic provisions with a considerable flexibility in possible extensions of maximum driving time and reductions in minimum rest periods under certain predefined conditions.

3. Regulation (EEC) 3820/85 also seeks to lay down the circumstances in which the AETR [1] rules are applied to international road transport operations to and from the Community. The dividing line has proven to be a contentious issue, as this Regulation has not covered all possibilities and even Court judgments [2] have not always clarified the issues sufficiently.

[1] European Agreement concerning the Work of Crews of Vehicles engaged in International Road Transport (AETR) of 1 July 1970.

[2] Case 313/92 Van Swieten BV [1994] ECR I-2177.

4. With the forthcoming introduction of the digital tachograph and the need to provide rules that can be properly checked through this new system and applied uniformly without variations in interpretation throughout the Union, the current arrangement of driving hours and rest periods requires modification. For this reason the Commission is proposing an arrangement that is based on the current system but eliminates elements that made the correct calculation of hours driven, rest periods and breaks a complex and difficult business.

5. The passage of fifteen years since the introduction of the Regulation has seen major changes in the road transport sector: activities formerly undertaken by national or local government services have since been privatised; for certain activities, there is now increased commercial competition and technical improvements to vehicles. Moreover, experience has shown that vehicles exempted because they undertake short distance journeys or which are deemed to operate in a restricted area, such as specialised breakdown vehicles, did not necessarily do so. For that reason the exemptions and national derogations for vehicles have been reduced to a minimum and justified only on account of their light weight or size, short distance travelled, or public interest.

6. Since road transport continues to reinforce its place in the Union as the dominant transport mode, and Community rules provide a common standard in the social field, reinforced by the introduction of a major new checking device, the digital tachograph, it seems wholly appropriate that the Commission be assisted in its oversight in the outworking of these rules by a standing committee of government experts drawn from the Member States. This committee could monitor developments in road transport, advise on possible refinements to the legislation, as well as assist the Commission in drawing up its biennial reports on the implementation of the legislation and in determining the correct and uniform application of the rules. With the pending enlargement of the Union, this committee will become a significant asset in facilitating an overview of developments in the road transport sector.

B. Consultation

7. The effort to gauge the difficulties in implementing Regulation (EEC) 3820/85 has been a constant process of consultation over the years. On 4-5 October 1995, the Commission convened a meeting of national experts to establish common practice and interpretations of the legislation on driving times and rest periods amongst the Member States. This was followed up by a questionnaire to all Member States on some particularly detailed areas. A further questionnaire on the efficient and uniform application of the Regulation's provisions was circulated to the Member States in 1998 and the results where applicable have been included in the current proposal. The Commission has taken account of elements from these enquiries in its current proposal. The need for comprehensible and enforceable legislation has been a constant refrain.

8. The group of enforcement experts that advised the Commission on the digital tachograph has also been tasked to review the current legislation in the light of the current differing interpretations as well as the conclusions from an in-depth Swedish study on the computability of the current rules for the digital tachograph [3]. They have been assisted in their task by an expert in computational and mathematical issues. The Commission proposal draws on their initial findings. Their ongoing discussions will also provide a basis on which the future enforcement legislation for this field can be updated, an issue that the Commission intends to address by means of a further proposal later in 2001.

[3] Serafimovski and Widebaeck On the Interpretation of the Council Regulation (EEC) 3820/85: A Report for the Swedish National Road Administration. Technical report: L4i-99/441.

9. The Commission noted that at the Transport Council meeting on 2 October 2000, in response to a questionnaire from the French Presidency, there was agreement that there be a technical modification of the Regulation. The current proposal provides a fresh, complete legal text for clarity and ease of reference, within which there are technical modifications that also form a firm basis on which the modern technical checking device - the digital tachograph - can be used effectively and uniformly throughout the Union. Peripheral amendments of Regulation (EEC) 3820/85 cannot address the fundamental problem - ensuring effective enforcement.

10. For the road transport industry, effective and uniform enforcement has been a constant concern. It has been voiced at meetings of the social partners at European level over the years. The employers see it as a way of reinforcing a level playing field amongst their number; the unions are adamant that only through effective and uniform enforcement can their rights under the legislation be assured.

11. The European Parliament has taken the opportunity when debating the Commission's biennial report on the application of the current legislation to express its continued concern at the wide diversity in the frequency and effectiveness of enforcement practice throughout the Union. Moreover, the own initiative report by Mr Grosch MEP on transport policy and the harmonisation of social legislation [4] called upon the Commission to ensure that in this field thorough controls are put in place together with effective sanctions and that there should be comprehensive reporting on the application of measures by Member States within a common time limit to allow a full overview of social issues within the road transport sector.

[4] PE 228.428/fin.

12. The Social Partners were consulted on the main changes to the Regulation on 11 December 2000, 16 January 2001 and 5 February 2001. Their views have been noted as have their subsequent written submissions and, where appropriate, have been reflected in the changes proposed.

C. Legal Base

13. The legal base is set out explicitly in Article 71 of the Treaty (co-decision procedure).

D. Objective and scope

14. The proposal aims to clarify and simplify the current legislation making it easier to comprehend and enforce. The scope has been clearly defined, firstly, by setting out more comprehensively when AETR or the Regulation should apply; and secondly, by setting out the category of goods and passenger vehicles affected - goods vehicles over 3.5 tonnes; and passenger vehicles suitable for carrying over 9 persons - based on the two current major exemptions. The proposal also seeks to update the other current exemptions and derogations to reflect changes in the road transport sector and, in so doing, to broaden the scope of application of the Regulation within the road transport sector in the Union.

15. Regulation (EEC) 3820/85 already provides considerable flexibility in driving times, rest periods and breaks. This type of flexibility has nevertheless been at the expense of effective enforcement. The proposal withdraws the current compensation arrangements, which were generally unable to be accurately computed and could easily be ignored. While flexibility is still retained, it is now within more computable, enforceable, understandable and simple boundaries. Increases in the standard daily rest period and a predefined enforceable timeframe for any reduced rest periods are balanced by an allowance of certain reduced daily and weekly rest periods without compensation.

16. The proposal also seeks to clarify in a definitive way all the terms used within the Regulation, so that there is little opportunity for individual interpretations of the norm which have led in the past to a considerable number of cases before the European Court of Justice, as well as variations in the way enforcement is applied to drivers of vehicles travelling throughout the Union, e.g. from Sweden to Portugal.

17. Article 17a of Directive 93/104/EC (the Working Time Directive) [5], as amended by Directive 2000/34/EC [6], sets out minimum requirements with respect to working time for mobile workers (including those in the road transport sector). In particular, Article 17a(2) provides that Member States shall take the necessary measures to ensure that mobile workers are entitled to "adequate rest". This Regulation contains more specific provisions on "adequate rest" for mobile workers in the road transport sector.

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

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

18. In line with the overall aim of better enforcement, the obligations upon employers as well as employees are made more explicit, so that there is a positive incentive for both parties to ensure that their operations are in conformity with the Regulation.

19. A constant difficulty in enforcing a Regulation that covers different jurisdictions within the Union is detection by officers in one Member State of infringements committed in another Member State. The current Regulation leaves it up to Member States to decide if they ignore or penalise such infringements and notify the competent authorities of the Member State in which the offence was committed. This provides a major loophole in enforcement activity. The Commission proposes a positive measure whereby Member States can penalise a driver found to have committed an infringement against the Regulation's provisions in a different Member State on the basis that, on the one hand, a driver who has previously breached the rules may pose a road safety risk in the Member State where he has been apprehended, and on the other hand, that the internal market should also be a single uncompartmentalised area as far as infringements against the common rules are concerned. Such infringements may be civil, administrative, or criminal in nature.

20. The problem of drivers using alternatively vehicles which come under the Regulation and those which do not, hence presenting an incomplete record of their driving times and rest periods, has been addressed. It is intended to remedy this situation by obliging drivers to record all their driving times within a daily driving period, even if for part of that period they drive vehicles outside the scope of the Regulation.

21. The Commission is keen to ensure that a uniform and effective enforcement of the Regulation is facilitated, that developments in this field throughout the Union are adequately monitored and that good practice is encouraged. To that end it advocates a standing Committee through which common views and decisions on the current application of the Regulation can be reached swiftly and decisively.

E. Specific Provisions

22. The provisions of the proposed Regulation are explained in the following paragraphs (a comparative table showing the text of the current Regulation (EEC) N° 3820/85 and the provisions of the proposal is also attached).

23. Article 1 sets out clearly the three aims of the Regulation's provisions, which are taken directly from the first recital of Regulation (EEC) 3820/85, namely harmonisation of conditions of competition as well as improvement of working conditions and road safety.

24. Article 2 rewords the scope as defined in Regulation (EEC) 3820/85 by adding the two main vehicle categories dealing with goods and passenger vehicles currently dealt with in that Regulation's Article 4 (Exclusions). It also states and amplifies the scope of the Regulation and AETR [7] in the light of the ruling of the European Court of Justice [8].

[7] AETR: see footnote 1.

[8] Case 313/92 Van Swieten BV [1994] ECR I-2177.

25. Article 3 presents an updated number of exemptions. The comparative table in the Annex provides a summary of the changes. In outlining below the changes to Article 4 of Regulation (EEC) 3820/85, the current paragraph numbering is used.

26. A number of exemptions in Regulation (EEC) 3820/85 have been deleted, some of which have been relocated elsewhere to provide a more logical home.

- current Article 4(1) and (2) have been incorporated into the proposed Article 2 on scope;

- current Article 4(6) has been reattributed to the proposed Article 13 on national derogations. There has been considerable abuse of Article 4(6), evidenced by the frequency with which the European Court is asked to make a judgement on matters arising from this particular exemption. In many cases, what were nationally owned or funded services in 1985, are now private sector industries. Competition and road safety issues now arise where they did not when Regulation (EEC) 3820/85 was first written. As Article 4(6) is an exemption from the Regulation, Member States are unable to make national provisions to reduce abuses. It has therefore been moved to the proposed Article 13(1)(g), where national derogations are permitted, in order that Member States may place such restrictions as are deemed necessary. In addition those areas where service provision is now firmly within the private sector have been deleted in recognition of the pressures of competition that now prevail, namely in the gas and electricity sectors, telegraph and telephone services, carriage of postal articles, radio and television broadcasting and detection of radio or television transmitters or receivers.

- current Article 4(13) - milk collection vehicles -The advent of refrigerated vehicles and the introduction of commercial competition mean that the justification for a total exemption is no longer tenable. Those services provided locally and therefore with only a minor impact on the market may come within the proposed national derogation in Article 13(b) which now includes vehicles used for farming within a 50 km radius.

27. A number of exemptions contained in Article 4 of Regulation (EEC) 3820/85 have been amended to restrict their ambit to those activities undertaken by specialised vehicles, within a limited distance, and in recognition of the significant trend towards the provision of such services by the private sector.

- current Article 4(5) dealing with civil emergency and military vehicles, is made more precise, to bring operations working on the periphery of such public organisations within the scope of the Regulation. In times of emergency, such transport operations could and would be exempted by virtue of the current Article 4(7) in the short term or by a national relaxation of the rules under the current Article 13(2).

- current Article 4(8) - specialised vehicles for medical purposes - the new text restricts the exemption to state-owned or funded vehicles in recognition of the more competitive environment prevailing in Member States.

- current Article 4(9) - this particular exemption has been claimed by peripheral vehicles associated with circuses or fun-fairs, such as large hamburger vans, and thus it is appropriate for the exemption purely to be restricted only to specialised vehicles transporting circus and fun-fair equipment. As carriage by road by these specialised vehicles is an ancillary activity and must of necessity be slow, they would not be under competitive pressure or pose a road safety risk.

- current Article 4(10) - the exemption for specialised breakdown vehicles in Article 4(10) of Regulation (EEC) 3820/85 is widely abused - commercial breakdown services regularly travel long distances, nationally and internationally, without the road safety requirements this Regulation provides. For this reason a 50 km restriction is placed on the exclusion of their activity from the scope of the Regulation. There is no overriding reason why vehicles operating in a national or international context should not come within the Regulation's provisions.

- current Article 4(12) - non-commercial carriage of goods - the amendment restricts the exemption to the use of smaller vehicles. A vocational licence is required by drivers of larger vehicles, which should comply with the Regulation. The deletion of 'for personal use' reflects the difficulties in interpretation, e.g. where charitable relief aid is concerned.

28. A number of exemptions have been retained in the proposal:

- current Article 4(3) on regular passenger transport under 50 kms has been retained given the short distance travelled, as well as the cost and disruption to services inclusion might occasion. Possible difficulties with mixed scope working highlighted by the enforcement officers' group have been addressed in the proposed Article 6(6).

- current Article 4(4), which is retained given the short distance range of such vehicles.

- current Article 4(7) - vehicles used for emergencies or rescues provide a vital service in a non-competitive environment.

- current Article 4(11) - no recording equipment can normally be installed on vehicles undergoing road-tests.

29. The provisions of the proposed Article 4 take over, and in some cases amplify or add to the definitions contained in Regulation (EEC) N° 3820/85:

- Paragraph 1 redefines 'carriage by road' to bring within the scope driving undertaken both on and off public roads, such as site driving.

- Paragraph 2 amends the current definition of a 'motor vehicle' and 'tractor' to prevent an exemption being claimed by vehicles running partly on rails but mainly on roads.

- Paragraph 3 provides a small but significant change in the definition of a driver. It will mean that drivers carried in a convoy of vehicles but who switch vehicle to commence driving will still be caught by the provisions of this legislation.

- Paragraph 4 sets out the current definition of a break, found in Article 7(4) of Regulation (EEC) 3820/85. The latter half of the current definition is included in a new simple definition of 'other work' found in paragraph 5. A suggested clarification by the enforcement officers group of the term 'break' was not taken up, as consultations with the social partners revealed that neither side considered it a helpful simplification.

- Paragraph 5 provides a simple definition of what constitutes 'other work', suggested by the enforcement officers group and adds the statement currently found in Article 7(4). 'Other work' as a term is also used as a category for the tachograph in Article 15(3)(b) of Council Regulation (EEC) 3821/85.

- Paragraph 6 provides a simpler definition of rest.

- Paragraphs 7 and 8 introduce definitions of daily and weekly rest periods, which were previously in Article 8 of Regulation (EEC) 3820/85. They no longer include compensation arrangements. Enforcement of such arrangements in all their permutations has proven to be fraught with difficulty, if not impossible. As a balance the standard daily rest periods are increased to 12 hours. The reduced daily rest periods are retained for flexibility, as is the 24-hour reduced weekly rest option. However the former option of 36 hour weekly rest, if taken at the place where the driver or vehicle is normally based, has been deleted in recognition that this option has tended to become the norm rather than the regular 45 hour weekly rest. Taken together with other measures within the body of the new proposal these set definitions are designed to provide a balance between flexibility and enforceable rest periods.

- Paragraph 9 provides a simpler definition of the week. The current concepts in Regulation 3820/85 have been found to lead to difficulties in enforcement given, firstly, that the start of a calendar week does not necessarily coincide with the end of a weekly rest period and secondly, that the weekly driving period is computed as the driving period between two weekly rest periods. As a simpler option, the national enforcement officers therefore strongly advocate the return to a flexible week, where only the two weekly rest periods are concerned.

- Paragraphs 10 and 11 define the daily and weekly driving time periods, which mostly mirror those in Regulation 3820/85. Here the definitions highlight and set out in clear terms what each period comprises.

- Paragraph 12 takes over the definition in Regulation (EEC) 3820/85 of 'permissible maximum weight'.

- Paragraph 13 updates the definition of "regular passenger services" in the light of the latest Community legislation.

- Paragraph 14 defines the term 'multi-manning' to avoid ambiguity and to cover instances where more than two drivers would be present in the vehicle.

- Paragraph 15 defines 'transport undertaking' to clarify the ambit of new provisions in Articles 10 and 19. The definition is largely based on that set out in Article 1(2), third indent of Council Directive 96/26/EC.

30. The provisions on minimum ages for drivers within Article 5 of Regulation (EEC) 3820/85 are deleted. These provisions have been an anomaly within the Regulation and are addressed in the current proposal for a Directive on the training of drivers [9]. The provisions relating to drivers' mates and conductors have been retained and set out more clearly in the proposed Article 5.

[9] COM(2001) 56 final.

31. Article 6 sets out in revised and defined terms the same basic driving hour provisions as are in Regulation (EEC) 3820/85.

- Article 6(1) - the maximum daily driving time remains 9 hours with an allowance up to 10 hours twice a week.

- Article 6(2) - the week in this instance is flexible and not fixed, being the period between one weekly rest period and another; in length it may extend to a maximum of 144 hours or the equivalent of 6 days within which daily driving periods may take place. This 144 hours puts in plain terms what is currently set out in a longer, less transparent paragraph, namely the current Article 6(1) third paragraph of Regulation (EEC) 3820/85

- Article 6(3) states for clarity's sake the maximum weekly driving time which the current Regulation leaves unsaid, namely 56 hours. For the sake of coherence, this is a maximum of 56 hours within one week.

- Article 6(4) restates the maximum accumulated driving time available in two consecutive flexible weeks, namely 90 hours.

- Article 6(5) clarifies that driving time may not be regarded as starting whenever a driver crosses an internal or external frontier of the European Union. It is also inserted to facilitate the introduction of new provisions on liability in Article 10.

- Article 6(6) addresses the difficulty of drivers working both within and outside the scope of the Regulation, for example, drivers of urban passenger transport vehicles used for regular journeys (currently excluded under Article 4(3)) who might also drive longer distance journeys in the course of their work. Regulation (EEC) 3820/85 does not oblige such drivers to record their out of scope work. Any record of their driving time under the current Regulation might therefore not take account of this additional driving and hence in practice the driving limits could be exceeded.

- While initially the Commission considered that the problem of such 'mixed scope driving' could be resolved through bringing those currently excluded from the scope of the Regulation within its ambit, such as vehicles used for passenger transport under 50 kms, as strongly recommended by the enforcement officers group, nevertheless the industry demonstrated in subsequent discussions that the cost and disruption to current practices would be disproportionate to the benefit obtained. A further option of forbidding mixed scope driving in the course of a day also did not deem practicable for the industry. For road safety reasons and to promote safe working practices in the industry, this provision therefore seeks to ensure that any person who operates outside of the Regulation and thereafter continues to work on a regulated journey during the same day must record all his driving time. This solution is in line with the recent Court of Justice ruling in this area. [10]

[10] Case 297/99 Skills Motor Coaches Ltd , 18.1.2001.

32. The proposal does not include the current special derogation for occasional international passenger transport services, set out in the current Article 6(1) paragraphs 4 & 5, under which the driver's weekly rest may be postponed until 13 days after his previous weekly rest. Such an arrangement neither lends itself to adequate enforcement arrangements nor promotes good road safety nor adequate working conditions. In addition, the possible extension of the derogation to national passenger transport introduces a further complicating factor in any calculation. However, the revised rules on weekly rest do provide for a reduced weekly rest period of 24 hours with a normal weekly rest period of 45 hours after 13 days. The deletion of this special clause may be considered a positive step in road safety terms, particularly in the light of recent tragic bus fatalities and complaints of abuse of the current arrangements. Moreover, in order to introduce a system of rules that can be efficiently and uniformly enforced throughout the Union, rules which will enable the digital tachograph to be used to its full potential, it is vital for them to be simple, with clearly defined elements of flexibility, easily understood both by industry and the enforcement agencies in the Member States.

33. Article 7 deals with breaks. It seeks to address the anomaly in the current text, whereby a driver may legally drive for a possible nine hours whilst only having had a break of fifteen minutes. Under the current proposal the new Article 7 means that a driver can drive for a maximum of seven and a half hours interrupted by a break of at least 30 minutes. The decision to establish 30 minutes as a minimum driving break is based on a road safety as well as a practical perspective, since 15 minutes are insufficient to permit basic relief and refreshment for the driver. This scenario is more acceptable in social and road safety terms and yet retains flexibility to the advantage of drivers and employers alike. It also retains the key element of the current Regulation, namely after four and a half hours driving a break of 45 minutes is required. The clarity of the proposal will aid compliance and enable uniform enforcement of the rules.

34. Article 8 simplifies the provisions on rest periods while reflecting some of the basic parameters found in Regulation (EEC) 3820/85 in a more precise way by using defined terms.

- Article 8(2) and (3) clarifies that the revised basic daily rest period of 12 hours must be completed not later than 24 hours following the previous daily rest period or weekly rest period. The reduced rest period remains at 9 hours, applicable three times a week. The trade-off between compensation for reduced daily rest periods and a higher minimum daily rest requirement has been discussed in the definitions section (point 29, concerning paragraphs 7 & 8).

- Article 8(4) seeks to put in more precise terms the determination of 'multi-manning' hours, taking account of the new minimum rest period, while leaving the basic concept of Regulation(EEC) 3820/85 intact.

- Article 8(5) ensures that reduced weekly rest periods cannot in practice be taken ad infinitem. It imposes a restriction that is enforceable and yet allows flexibility. It provides better social conditions for drivers and by abolishing the necessity to compensate for a reduced weekly rest period it also ultimately benefits employers.

- Article 8(6) slightly rewords the current text so that drivers can use other sleeping facilities in addition to a bunk, provided they are suitable for the purpose. It recognises the progress in vehicle construction and provision over the last fifteen years.

35. Article 9 seeks to standardise a rule on ferryboat and train usage, which has been applied differently in Member States. Where a driver accompanies a vehicle on a ferry or train, should he take a daily rest period, he is often required to move the vehicle on or off the train/ferry during this rest period. In considering both practicality and road safety, there would be no detrimental effect on a driver who, during a full 12 hour daily rest period, was allowed to interrupt his rest period, provided that the interruptions did not exceed one hour.

36. Article 10 retains and clarifies the current Article in Regulation (EEC) 3820/85, which prohibits certain types of payment, but adds certain other provisions. The Article was designed to make the undertaking liable for infringements that were a direct consequence of pressure, rules and incentives to encourage a driver to work and drive long hours. However it has generally been found to be unenforceable, mainly because it is impossible to prove to the satisfaction of a criminal court whether or not road safety is likely to be endangered. Thus a company might avoid prosecution for infringements committed by the driver despite the fact that the undertaking was the prime mover in the infringement. The original Article has been retained in Article 10(1) however to underline commitment to this perspective.

37. To introduce a more practicable, uniform and effective enforcement solution, several new paragraphs have been added.

- Article 10(2) places a direct onus on the employer to ensure compliance with this Regulation. It incorporates the current Article 15, while clarifying the transport undertakings duties and specifying regular rather than periodic checks for conformity with the Regulation and Regulation (EEC) 3821/85. Where undertakings are responsible for scheduling a driver's work, they should be made responsible where that schedule is inadequate and/or does not allow the driver sufficient scope for delays. Drivers should also be free from fear of reprisal if they need to stop driving once they have reached the legal maximum.

- Article 10(3) ensures that each Member State makes it an infringement for a driver to breach the provisions of the Regulation where this is committed in whole or in part on its territory. Moreover it is also required that it should be an infringement where a driver is found to be driving on the territory of a Member State having breached the rules in the Regulation at any time since the last weekly rest period. The act of driving is on the territory of that Member State, even though the rules may have been breached outside its territory during the preceding week. The weekly rest period has been chosen since it seems reasonable to assume that driving for long periods without adequate rest will be a risk to road safety in the Member State where a road-side inspection takes place. Here jurisdiction is being claimed on the basis of an act committed in the Member State, i.e. driving without due rest. The general introduction of this provision amongst Member States can prove a more effective means of enforcement. Current practices, which involve a Member State in which territory the infringement is detected informing the Member State of establishment, are too unwieldy and too unevenly applied by Member States' competent authorities. Moreover, they allow operators or drivers the opportunity to destroy or alter evidence to conceal infringements.

- Article 10(4) ensures that a transport undertaking can be held liable if infringements are detected which have been committed by drivers for its benefit. Jurisdiction is claimed on the basis of the fact that the undertaking is established on the territory of the Member State, even though records may indicate that the driver failed to take an adequate rest period on the territory of another Member State. Experience amongst enforcement authorities has indicated that a considerable proportion of infringements, and fraud, are directly attributable to undue pressure placed upon drivers by undertakings. Undertakings may often evade any penalty whilst the drivers do not. Drivers may even be asked by the undertaking to falsify records to prevent detection. Such a situation will not further respect for the rules in force.

- Article 10(5) provides for two defences: the first refers to the obvious case where the driver acts outside his employer's instructions; the second defence concerns driving periods undertaken by the driver without the transport undertakings' knowledge.

- Article 10(6) places a duty on the driver to provide sufficient information to enable his employer to comply with the rules in Chapter II of the Regulation. There have been substantial enforcement difficulties where drivers work for more than one transport undertaking. Particularly where this concerns agencies involved in the placement of drivers, it also seems reasonable under such circumstances to ensure that each undertaking is in possession of sufficient information to allow it to ensure compliance with the provisions of the Regulation.

38. Articles 11 and 12 retain the provisions in Regulation (EEC) 3820/85 but seek to clarify and simplify the text.

39. Article 13 sets out the national derogations. Paragraph 1 is taken from Article 13(2) of Regulation (EEC) 3820/85. It is inserted to ensure the objectives of the Regulation remain pre-eminent and that it applies to all potential derogations rather than to one explicit case.

40. A number of the current derogations have been deleted (current Article 13(1)(a), (d), (e), (f), and (k)). Others have been amended (current Article 13(1)(b), (c), (g), (i) and (j)) or retained (current Article13(1)(h) - island exemption), while one has been added. The position of the national derogations is set out below, using the Article numbering of Regulation (EEC) 3820/85.

Deletions

- current Article 13(1)(a) - in the interests of road safety and the welfare of those who are carried on such minibuses, and in the light of the unanimous decision of the enforcement officers group in favour of deletion and in particular the experience of representatives from those Member States where the derogation is currently exercised, this exemption has been deleted.

- current Article 13(1)(d) - as such services appear to be mostly on a private basis, such an exclusion can no longer be justified.

- current Article 13(1)(e) - this derogation is covered by the new provision (proposed Article 13(1)(b)). Where the market is outside a 50km radius, the normal transport rules should apply.

- current Article 13(1)(f) - the incidence of this type of vehicle is now rare and could be covered by many of the proposed changes. Many of the undertakings currently claiming this derogation are travelling long distances with large vehicles and should come under the ambit of the Regulation. Those that operate in a short radius of their base could take advantage of the proposed Article 13(1)(c). In both instances driving may not constitute the driver's main activity and the load may not be carried for commercial and competitive purposes.

- current Article 13(1)(k) - now encompassed by the provisions of the proposed Article 13 (1)(b).

Amendments

- current Article 13(1)(b) - Clarified and restricted to a vehicle either owned or being hired in without a driver in order to prevent abuse by sub-contractors as well as by persons or businesses held to be in competition with others (Anders Sjöberg - ECJ [11]).

[11] Case 387/96 Anders Sjöberg [1998] ECR I-1225.

- current Article 13(1)(c) - Enforcement authorities had some serious concerns that those engaged in horticulture or agriculture were abusing the exemption that they currently enjoy. This reworded derogation is designed to allow sufficient freedom for those who work on the land whilst restricting the scope for transport operations using agricultural vehicles.

- current Article 13(1)(g) - The derogation has been restricted to vehicles of 7500kg or less, in line with a general approach to exceptions where a weight threshold is appropriate. Otherwise it remains unchanged. The last sentence of the existing Regulation has been removed as it appears no Member State has ever used this provision.

- current Article13(1)(i) - This provision was modified to encourage the use of environmentally friendly modes of transport in local operations. It is now restricted by weight and distance for road safety reasons, to ensure that such vehicles do not cover long distances without some control and yet encouraging the use of such vehicles, for example, in city centres.

- current Article 13(1)(j) - An additional qualifying provision is added to ensure the exemption is not abused for commercial profit

Addition

- The former exemption under Article 4(6) - state utilities - has been made a national derogation. It was moved from Article 4 where it was a blanket and unequivocal exemption. Many of these utilities are now no longer state controlled and there are commercial interests that could jeopardise road safety considerations. The derogation remains here to allow Member States the freedom to relax the rules on their own territories as and where applicable, provided that the provisions of the proposed Article 1 are not jeopardised. In addition those utilities which are now in the private sector have been removed.

41. A new Article 14 is used to underline the distinction between those derogations which Member States may simply introduce on their territory (the current Article 13(1)) and those situations where consultation or prior authorisation of the Commission is required (the current Article 13(2)). While retaining the current provisions generally, the new Article deletes the word 'seriously' as its use in context appears redundant.

42. The largest group of vehicles totally excluded from the Regulation comprises the urban bus sector or those regular passenger services whose route does not exceed 50 km. While the Commission is aware that this sector is primarily of a local nature and hence the prinicple of subsidiarity should apply, nevertheless in several Member States this sector has been deregulated and hence there is the risk that road safety concerns and working conditions may be compromised for profit. For this reason, the new Article 15 imposes a general obligation on the Member States to provide adequate rules on driving times, breaks and rest periods for this sector.

43. Article 16 which allowed an alternative timetable and roster regime for regular national and border international passenger services instead of using a tachograph to record driving time and rest periods was unanimously considered by the Member States enforcement officers to be outdated. Most if not all vehicles used in this type of work were considered to be already fitted with tachographs and hence because of the current Article 14(7) were automatically barred from this alternative. Given the distances covered by such services, the provisions of the current Regulation were also difficult to enforce accurately using this alternative regime, leaving the system open to abuse. It is therefore proposed to phase out the alternative regime by 31 December 2006.

44. The short transitional period of three years for those services formerly covered by the alternative regime allows those transport undertakings still relying on the duty roster and timetable to make provision for the installation of tachograph equipment in their fleet. In the interim, the required period to be covered by the duty roster is raised to the previous 28 days in the proposed Article 16(3)(a) to reflect the information to be available on the digital tachograph.

45. Article 17 introduces a new element to the current requirement for a biennial report to be drawn up by the Commission, namely, inclusion of details on the implementation of Regulation (EEC) No 3821/85. Given the forthcoming transition to digital tachographs, a comprehensive overview including the impact of the introduction of digital tachographs within the road transport sector is a logical and necessary addition.

46. The proposed Article 18 updates and simplifies the current Article 17(1).

47. Article 19 deals with penalties. It introduces the now standard phrase as regards their necessary impact. It also introduces a provision to ensure that within the range of sanctions that are applied by Member States, a certain consistency is achieved, namely, that detection of serious infringements can result in a serious and immediate penalty.

48. Article 20 amplifies the current Article 17(2). The addition is intended to improve the exchange of information between Member States and to avoid problems with the principle of non bis in idem. This article provides for the exchange of information rather than mutual legal assistance.

49. The current Article 17(3), first indent, is retained to facilitate and encourage the regular exchange of intelligence between Member States' enforcement authorities, e.g., that infringements have been and are likely to be committed by a particular transport undertaking.

50. Article 21 takes over the provision in Article 3 of Regulation (EEC) 3820/85 that allows the Community to negotiate with third countries as regards the implementation of the Regulation. This will be necessary, particularly in the context of the AETR, once the revision of Council Regulation (EEC) 3820/85 has been adopted.

51. Articles 22 and 23 establish a standing advisory Committee to assist the Commission in overseeing the implementation of this Regulation. It is envisaged that this group would comprise government experts drawn from the Member States, who can monitor developments, contribute to a common understanding of the application of the legislation, as well as assist the Commission in drawing up its biennial reports on the implementation of the legislation, a process which up until now has not seen a wholehearted commitment from all Member States. Moreover given the priority of ensuring a uniform understanding and application of the Regulation, it is thought more efficient to decide on enforcement queries through such a Committee structure. The Commission envisages this Committee having a clear link with the Social Partners meeting at European level.

52. Articles 24 and 25 provide respectively for the repeal of Regulation (EEC) 3820/85 and lay down the implementation date for the changes.

F. Justification for Action at Community Level

What are the objectives of the proposed action in relation to the Community's obligations*

53. The Commission's proposal seeks to enhance and harmonise interpretation, application and enforcement of existing EU law by clarifying, simplifying and updating the common rules as well as introducing measures to facilitate more effective and uniform checks and sanctions throughout the Community.

Does competence for the planned activity lie solely with the Community or is it shared with the Member States*

54. The action falls under the exclusive competence of the Community (Article 71 of the Treaty).

What is the Community dimension of the problem (for example how many Member States are involved and what solution has been used up to now*)

55. The subject affects all Member States and road transport operators as well as drivers in all Member States. It has been found that differences in the interpretation and implementation of Regulation (EEC) 3820/85 between Member States can lead on the one hand to uncertainty as to the differing national interpretations of the rules applicable in international road transport operations and on the other hand to difficulties for Member States' enforcement agencies to enforce the EU provisions uniformly and effectively. Enforcement officer representatives from all Member States have noted similar problems in defining the scope of exemptions and national derogation provisions. Moreover developments since 1985 have seen a continuing trend throughout the Community towards the provision of public services by private operators introducing a competitive element and hence a pressure on road safety and working conditions - therefore exemptions and derogations would need to be reviewed.

What is the most effective solution taking into account the means available to the Community and those of the Member States*

56. Only joint action at Community level can further strengthen, improve and harmonise the application of the Community provisions.

What real added value will the activity proposed by the Commission provide and what will be the cost of inaction*

57. The proposal will facilitate a uniform comprehension, application and enforcement of the common EU rules. It will update and clarify exemptions and derogations and introduce provisions to enable more effective checks to take place within the single market. It will provide enforcers and the industry alike with a clearer view of the Regulation's provisions and enable these provisions to be computable for the new digital tachograph.

Inaction would leave an unsatisfactory, uneven and uncertain application of the rules and would not recognise the changes in the market or the recent requirements such as the introduction of the digital tachograph.

What forms of action are available to the Community*

58. The proposal seeks to clarify and update the text of Regulation (EEC) 3820/85, which has not been amended significantly for over 15 years. No other action would be appropriate to achieve this goal

2001/0241 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the harmonisation of certain social legislation relating to road transport

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission [12],

[12] OJ C ..., ..., p. ...

Having regard to the opinion of the Economic and Social Committee [13],

[13] OJ C ..., ..., p. ...

Having regard to the opinion of the Committee of the Regions [14],

[14] OJ C ..., ..., p. ...

Acting in accordance with the procedure laid down in Article 251 of the Treaty [15],

[15] OJ C ..., ..., p. ...

Whereas:

(1) In the field of road transport, Regulation (EEC) No 3820/85 on the harmonisation of certain social legislation relating to road transport [16] sought to harmonize the conditions of competition between methods of inland transport, especially with regard to the road sector and the improvement of working conditions and road safety. Progress in these areas must be safeguarded and extended.

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

(2) Article 17a(2) of Directive 93/104/EC [17] concerning certain aspects of the organisation of working time, as amended by Directive 2000/34/EC of the European Parliament and of the Council [18], requires Member States to adopt measures to ensure that mobile workers are entitled to "adequate rest".

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

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

(3) Difficulties have been experienced in interpreting, applying and enforcing certain provisions of Regulation (EEC) No. 3820/85 [19] on driving time, break and rest period rules for drivers engaged in national and international road transport within the Community in a uniform manner in all Member States, because of the broad terms in which they are drafted.

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

(4) Effective and uniform enforcement of those provisions is desirable so as to achieve their objectives and not to bring the application of the rules into disrepute. Therefore a clearer and simpler set of rules is needed, which will be more easily understood, interpreted and applied by the road transport industry and the enforcement agencies.

(5) Measures provided for in this Regulation regarding working conditions cannot be allowed to prejudice the right of the two sides of industry to lay down, by collective bargaining or otherwise, provisions more favourable to workers.

(6) It is desirable to define clearly the precise scope of this Regulation by specifying the main categories of vehicle included.

(7) Full definitions of all key terms should be given in order to render the interpretation easier and ensure that the Regulation is applied in a uniform manner.

(8) The provisions of the European Agreement concerning the Work of Crews of Vehicles engaged in International Road Transport of 1 July 1970 (AETR), as amended, should continue to apply to the carriage by road of goods and passengers by vehicles registered in any Member State or any country which is a contracting party to the AETR, for the whole of the journey where that journey is between the Community and a country which is a contracting party or through such a country;

(9) In the case of vehicles registered in a state which is not a contracting party to AETR, those provisions will only apply to that part of the journey effected within the Community.

(10) Since the subject matter of the AETR Agreement falls within the scope of this Regulation, the power to negotiate and conclude the Agreement lies with the Community.

(11) If an amendment to the internal Community rules in the field in question necessitates a corresponding amendment to the AETR, Member States will act together to bring about such an amendment to the AETR in accordance with the procedure laid down therein.

(12) The list of exemptions should be updated to reflect developments in the road transport sector over the past fifteen years.

(13) The basic rules on driving time need to be clarified and simplified to allow effective and uniform enforcement by means of the digital tachograph as set out in Regulation (EEC) 3821/85 on recording equipment in road transport [20] as amended by Regulation (EEC) 2135/98 [21].

[20] OJ L 370, 31.12.1985, p. 8.

[21] OJ L 274, 9.10.1998, p. 1.

(14) It has proved possible under existing rules to schedule daily driving periods and breaks to enable a driver to drive for too long without a full break, leading to reduced road safety and a deterioration in driver's working conditions. It is therefore appropriate to introduce a longer minimum break which must be taken within a shorter time period.

(15) Current compensation periods for reduced rest periods, both daily and weekly, have been found to be so flexible and varied as to be practically unenforceable. In order to simplify the scheme, a new balance should be found which retains flexibility but provides a better standard for the driver and is computable. Standard daily rest periods should be increased and split periods of rest should not be permitted. Reduced rest periods should be left without compensation and weekly reduced rest periods permitted only once between two full weekly rest periods.

(16) Many road transport operations within the Community involve transport by ferry or by rail for part of the journey. Clear, appropriate provisions regarding daily rest periods and breaks should therefore be laid down for such operations.

(17) In view of the increase in cross-border carriage of goods and passengers, it is desirable in the interests of road safety and enhanced enforcement for roadside checks to cover driving times and rest periods undertaken within other Member States or third countries.

(18) Liability of transport undertakings should apply at least to transport undertakings which are legal or natural persons, and should not exclude proceedings against natural persons who are perpetrators, instigators or accessories to infringements of this Regulation

(19) It is necessary for drivers working for several transport undertakings to supply each one with adequate information to enable it to fulfil its responsibilities under this Regulation.

(20) In order to promote social progress and improve road safety, each Member State must retain the right to adopt certain appropriate measures.

(21) National derogations should reflect changes in the road transport sector and be restricted to those elements not now subject to competitive pressures.

(22) The Member States should lay down rules for vehicles used for the carriage of passengers on regular services where the route covered does not exceed 50km. Those rules should provide adequate protection in terms of driving times allowed and breaks and rest periods imposed.

(23) It is desirable in the interests of effective enforcement that all regular national and international passenger transport services should be checked using the standard recording device.

(24) The Member States should lay down rules on penalties applicable to infringements of the provisions of this Regulation and ensure that they are implemented. Those penalties must be effective, proportionate and dissuasive. The possibility of impounding the vehicle where serious infringements are detected should be included within the common range of penalties open to Member States.

(25) It is desirable in the interests of clear and effective enforcement to ensure uniform provisions on the liability of transport undertakings and drivers for breaches of the measures provided for in this Regulation. This liability may result in penal, civil or administrative sanctions as may be the case in the Member States.

(26) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty, the objective of laying down clear common rules on driving times and rest periods for drivers in road transport cannot be sufficiently achieved by the Member States and can therefore, by reason of the need for co-ordinated transnational action, be better achieved by the Community. This Regulation confines itself to the minimum required in order to achieve those objectives and does not go beyond what is necessary for that purpose.

(27) In accordance with Article 2 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission [22], measures for the implementation of this Regulation should be adopted by use of the advisory procedure provided for in Article 3 of that Decision.

[22] OJ L 184, 17.7.1999, p. 23.

(28) For reasons of clarity and rationalisation, Regulation (EEC) No 3820/1985 should be repealed and replaced by this Regulation.

HAVE ADOPTED THIS REGULATION:

CHAPTER I

Introductory provisions

Article 1

This Regulation lays down rules on driving time, breaks and rest periods for drivers engaged in the carriage of goods and passengers by road in order to harmonise the conditions of competition between methods of inland transport, especially with regard to the road sector and to improve working conditions and road safety.

Article 2

1. This Regulation shall apply to carriage by road:

(a) of goods where the permissible maximum weight of the vehicles, including any trailer, or semi-trailer, exceeds 3.5 tonnes, or

(b) of passengers by vehicles which are constructed or permanently adapted for carrying more than nine persons including the driver, and are intended for that purpose.

It shall apply to vehicles registered in the Community where the carriage by road is undertaken:

(a) entirely within the Community; or

(b) between the Community and a third country which is not a contracting party to the European Agreement concerning the Work of Crews of Vehicles engaged in International Road Transport (AETR) or passes through such a country.

2. The AETR shall apply where carriage by road is undertaken:

(a) by vehicles registered in any Member State or any country which is a contracting party to the AETR, for the whole of the journey where that journey is between the Community and a country which is a contracting party, or through such a country; or

(b) by vehicles registered in a third country which is not a contracting party to the AETR, for the whole of the journey made within the Community.

Article 3

Without prejudice to Article 6(6), this Regulation shall not apply to carriage by:

1. vehicles used for the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 kilometres;

2. vehicles with a maximum authorised speed not exceeding 30 kilometres per hour;

3. vehicles owned or hired in without a driver by the armed services, civil defence, fire services, and forces responsible for maintaining public order;

4. vehicles used in emergencies or rescue operations;

5. specialised vehicles which are owned or hired in without a driver by the State and used for medical purposes;

6. specialised vehicles transporting circus and fun-fair equipment;

7. specialised breakdown vehicles operating within a 50 km radius of their base;

8. vehicles undergoing road tests for technical development, repair or maintenance purposes, and new or rebuilt vehicles which have not yet been put into service;

9. vehicles with a maximum permissible weight not exceeding 7 500 kg used for non-commercial carriage of goods.

Article 4

For the purposes of this Regulation the following definitions will apply:

1. "carriage by road" means any journey made on roads by a vehicle, whether laden or not, used for the carriage of passengers or goods;

2. "vehicle" means a motor vehicle, tractor, trailer or semi-trailer, defined as follows:

- "motor vehicle": any mechanically self-propelled vehicle circulating on the road, other than a vehicle permanently running on rails, and normally used for carrying passengers or goods;

- "tractor": any mechanically self-propelled vehicle circulating on the road, other than a vehicle permanently running on rails, and specially designed to pull, push or move trailers, semi-trailers, implements or machines;

- "trailer": any vehicle designed to be coupled to a motor vehicle or tractor;

- "semi-trailer": a trailer without a front axle coupled in such a way that a substantial part of its weight and of the weight of its load is borne by the tractor or motor vehicle;

3. "driver" means any person who drives the vehicle even for a short period, or who is carried in a vehicle in order to be available for driving if necessary;

4. "break" means any period during which a driver may not carry out any other work.

5. "other work" means any activity which is not rest, a break or driving. Waiting time and time not devoted to driving spent in a vehicle in motion, a ferry, or a train shall also not be regarded as 'other work'.

6. "rest" means any uninterrupted period during which the driver may freely dispose of his time.

7. "daily rest period" means the daily period during which the driver may freely dispose of his time and covers a "regular daily rest period" or a "reduced daily rest period".

- "regular daily rest period" means any uninterrupted period of rest of at least 12 hours.

- "reduced daily rest period" means any uninterrupted period of rest of at least 9 hours but less than 12 hours.

8. "weekly rest period" means the weekly period during which the driver may freely dispose of his time and covers a "regular weekly rest period" or a "reduced weekly rest period".

- "regular weekly rest period" means any uninterrupted period of rest of at least 45 hours.

- "reduced weekly rest period" means any uninterrupted period of rest of at least 24 hours but less then 45 hours, which is taken other than at the place where the vehicle is normally based or where the driver is based.

9. A "flexible week" means the period of time between the end of one weekly rest period and the beginning of the next weekly rest period.

10. "daily driving time" means the total accumulated driving time between any two consecutive daily rest periods or between a daily rest period and a weekly rest period.

11. "weekly driving time" means the total accumulated driving time during a week.

12. "permissible maximum weight" means the maximum authorised operating weight of the vehicle fully laden;

13. "regular passenger services" means national and international services as defined in Article 2 of Council Regulation (EC) n° 684/92 [23]".

[23] OJ L 74, 20.3.1992, p. 1, as amended by Council Regulation (EC) No. 11/98, OJ L 4, 8.1.1998, p. 1.

14. "multi-manning" - a driver is engaged in multi-manning a vehicle if there is, during all periods of driving between any two consecutive daily rest periods, or between a daily rest period and a weekly rest period, at least one other driver on the vehicle.

15. "transport undertaking" means any natural person, any legal person, any association or group of persons without legal personality, whether profit-making or not, or any official body, whether having its own legal personality or being dependent upon an authority having such a personality which engages in carriage by road.

CHAPTER II

Crew, driving times, breaks and rest periods

Article 5

1. The minimum age for conductors shall be 18 years.

2. The minimum age for driver's mates shall be 18 years. However, Member States may reduce the minimum age for drivers' mates to 16 years provided that

(a) the carriage by road is carried out within one Member State within a 50 kilometre radius of the place where the vehicle is based, including local administrative areas the centres of which are situated within that radius,

(b) the reduction is for the purposes of vocational training, and

(c) there is compliance with the limits imposed by the Member State's national law on employment matters.

Article 6

1. The daily driving time shall not exceed nine hours.

However, the daily driving time may be extended to at most 10 hours not more than twice during the flexible week.

2. The flexible week shall not exceed 144 hours.

3. The weekly driving time shall not exceed 56 hours.

4. The total accumulated driving time during any two consecutive flexible weeks shall not exceed 90 hours.

5. Daily and weekly driving times shall include all driving time on the territory of the Community or of a third country.

6. A driver of a vehicle within the scope of this Regulation who also drives between two daily rest periods or between a daily and weekly rest period a vehicle coming within the exemptions set out in Article 3 or derogations provided for in Articles 13 and 14 shall record the total daily driving time.

Article 7

1. After at most three hours of driving a driver shall observe a break of at least 30 minutes unless he begins a rest.

2. However, this break may be observed after at most four-and-a-half hours of driving if the break is prolonged to at least 45 minutes unless the driver begins a rest.

Article 8

1. A driver shall take daily and weekly rest periods.

2. A driver shall complete a new daily rest period not later than 24 hours after the end of the previous daily rest period or weekly rest period.

If the portion of the daily rest period which is contained in the 24 hour period is at least 9 hours but less than 12 hours, then the daily rest period in question shall be regarded as a reduced daily rest period.

3. A driver may have at most three reduced daily rest periods during a flexible week.

4. By way of derogation from paragraph 2, within 30 hours after the end of a daily rest period, a driver engaged in multi-manning shall complete a new daily rest period.

5. A driver shall commence a new regular weekly rest period not later than 13 consecutive periods of 24 hours after the end of the previous regular weekly rest period.

6. Daily and weekly rest periods may be taken in a vehicle, as long as it has suitable sleeping facilities for each driver and the vehicle is stationary.

Article 9

1. By way of derogation from Article 8, where a driver accompanies a vehicle which is transported by ferry or train, and takes a regular daily rest period, that period may be interrupted not more than once by other activities not exceeding one hour in total.

2. During the regular daily rest period mentioned in paragraph 1 the driver shall be able to have access to a bunk or couchette.

CHAPTER III

Liability of the undertaking

Article 10

1. A transport undertaking shall not give drivers employed or put at its disposal any payment, even in the form of a bonus or wage supplement, related to distances travelled and/or the amount of goods carried if that payment is of such a kind as to endanger road safety.

2. A transport undertaking shall organise the work of drivers referred to in paragraph 1 in such a way that the drivers are able to comply with Chapter II of this Regulation and Council Regulation (EEC) No. 3821/85. The transport undertaking shall properly instruct the driver and shall therefore make regular checks to ensure that Chapter II of this Regulation and of Regulation (EEC) n° 3821/85 are complied with.

3. It shall be an infringement for a driver to breach the rules set out in Chapter II in whole or in part on the territory of a Member State. It shall be an infringement to drive on the territory of a Member State having breached those rules at any time since the driver's most recent weekly rest period, even if the driver was not present on that Member State's territory at the time of that breach of the rules.

4. Transport undertakings established in a Member State shall be liable for infringements referred to paragraph 3 committed by drivers for the benefit of those undertakings even if the driver was not present on its territory at the time of the infringement.

5. A transport undertaking shall not be liable under paragraph 4 if it proves that -

(a) the infringement was due to the fact that the driver had failed to comply with the instructions given to him by that transport undertaking; or

(b) it was not aware and could not reasonably become aware that the driver had been employed or was at the disposal of several employers and was thereby subject to several sets of instructions which would cause him to breach the rules set out in Chapter II.

6. A driver who is employed or at the disposal of more than one transport undertaking shall provide sufficient information to each undertaking to enable them to comply with Chapter II.

CHAPTER IV

Exceptions

Article 11

A Member State may apply higher minimum breaks and rest periods or lower maximum driving times than those laid down in Articles 6 to 9 inclusive to carriage by road undertaken wholly within its territory by vehicles registered in that Member State.

Article 12

Provided that road safety is not thereby jeopardised and to enable the vehicle to reach a suitable stopping place, the driver may depart from the provisions of Articles 6 - 9 to the extent necessary to ensure the safety of persons, of the vehicle or its load. The driver shall indicate the nature of the reason for such departure from the provisions on the record sheet of the recording equipment or in the duty roster.

Article 13

1. Provided the objectives set out in Article 1 are not prejudiced, each Member State may grant exceptions on its own territories or, with the agreement of the States concerned, on the territory of another Member State from Articles 5 - 9 applicable to carriage by the following:

(a) vehicles owned or hired without a driver by public authorities to undertake carriage by road which do not compete with private transport undertakings;

(b) vehicles used by agriculture, horticulture, forestry, farming or fishery undertakings for carrying goods within a 50 kilometre radius of the base of the undertaking;

(c) vehicles with a maximum permissible weight not exceeding 7500 kg carrying material or equipment for the driver's use in the course of his work within a 50 kilometre radius of the base of the undertaking, provided that driving the vehicles does not constitute the driver's main activity;

(d) vehicles operating exclusively on islands not exceeding 2300 square kilometres in area which are not linked to the rest of the national territory by a bridge, ford or tunnel open for use by motor vehicles;

(e) vehicles used for the carriage of goods within a 50 km radius of the base of the undertaking and propelled by means of natural or liquefied gas or electricity, the maximum permissible weight of which, including the weight of trailers or semi-trailers, does not exceed 7500 kg;

(f) vehicles used for driving instruction with a view to obtaining a driving licence, provided that they are not being used for the commercial carriage of goods or passengers;

(g) vehicles used in connection with sewerage, flood protection, or water services, highway maintenance and control, or refuse collection or disposal services;

2. Member States shall inform the Commission of the exceptions granted under paragraph 1 and the Commission shall inform other Member States thereof.

Article 14

Provided that the objectives set out in Article 1 are not prejudiced, Member States may, after authorisation by the Commission, grant exceptions from the application of Articles 6 - 9 of this Regulation to transport operations carried out in exceptional circumstances.

In urgent cases they may grant a temporary exception for a period not exceeding 30 days, which shall be notified immediately to the Commission.

The Commission shall inform the other Member States of any exception granted pursuant to this Article.

Article 15

Member States shall ensure that drivers of vehicles stipulated in Article 3(1) shall be covered by national rules which provide adequate protection in terms of driving times allowed and breaks and rest periods imposed.

CHAPTER V

Control procedures and penalties

Article 16

1. Where no recording equipment has been fitted to the vehicle in accordance with Regulation (EEC) 3821/85, the provisions set out in paragraphs 2 and 3 of this Article shall apply until 31 December 2006 to:

(a) regular national passenger services, and

(b) regular international passenger services whose route terminals are located within a distance of 50 km as the crow flies from a frontier between two Member States and whose route length does not exceed 100 km.

2. A service timetable and a duty roster shall be drawn up by the transport undertaking and shall show, in respect of each driver, the name, place where he is based and the schedule laid down in advance for various periods of driving, other work, breaks and availability.

Each driver assigned to a service referred to in paragraph 1 shall carry an extract from the duty roster and a copy of the service timetable.

3. The duty roster shall

(a) include all the particulars specified in paragraph 2 for a minimum period covering the previous 28 days,

(b) be signed by the head of the transport undertaking or by a person authorised to represent him, and

(c) be kept by the transport undertaking for one year after expiry of the period covered by it. The transport undertaking shall give an extract from the roster to the drivers concerned upon request. The duty roster shall, at the request of an authorised inspecting officer, be produced and handed over.

Article 17

Member States, using the standard form set out in Commission Decision 93/173/EEC [24], shall communicate the necessary information to the Commission to enable it to draw up every two years a report on the application of this Regulation and Regulation (EEC) 3821/85 and developments in the fields in question.

[24] OJ L 72, 25.3.1993, p. 33.

This information must reach the Commission not later than 30 September of the year following the end of the two year period concerned.

The Commission shall forward the report to the European Parliament and to the Council within 13 months of the end of the two-year period concerned.

Article 18

Member States shall adopt such measures as may be necessary for the implementation of this Regulation.

Article 19

Member States shall lay down rules on penalties applicable to infringements of the provisions of this Regulation and ensure that they are implemented. Those penalties must be effective, proportionate and dissuasive. These penalties may be civil, administrative or criminal in nature.

The penalties shall include the possibility of impoundment of the vehicle for serious infringements.

Article 20

1. Member States shall assist each other in applying this Regulation and in checking compliance therewith.

They shall inform the Member State in which the transport undertaking concerned is established of any breach of the rules set out in Chapter II committed on or outside their territory, including any breach which occurred prior to the most recent weekly rest period.

Such information shall be provided within a reasonable time period and shall include information about any penalties imposed.

2. The competent authorities of the Member States shall regularly send one another all available information concerning:

(a) breaches of the rules set out in Chapter II committed by non-residents and any penalties imposed for such breaches ;

(b) penalties imposed by a Member State on its residents for such breaches committed in other Member States.

Article 21

The Community shall enter into any negotiations with third countries, which may prove necessary for the purpose of implementing this Regulation.

Article 22

Committee procedures

1. The Commission shall be assisted by the committee referred to in Article 18(1) of Regulation 3821/85; it shall be composed of representatives of the Member States and chaired by a representative of the Commission.

2. Where reference is made to this paragraph, the advisory procedure laid down in Article 3 of Decision 1999/468/EC shall apply, in compliance with Article 7 and Article 8 thereof.

Article 23

Implementing measures

1. Member States may bring any question concerning the implementation of this Regulation to the attention of the Commission. Appropriate decisions shall be adopted in accordance with the advisory procedure referred to in Article 22(2).

2. At the request of a Member State or on its own initiative the Commission shall:

(a) examine cases where differences in the application and enforcement of any of the provisions of the Regulation arise;

(b) clarify the provisions of the Regulation and ensure a common approach;

(c) in a specific case concerning driving times, breaks and rest periods take a decision in accordance with the advisory procedure referred to in Article 22(2). The Commission shall communicate its decision to the European Parliament, the Council and to the Member States.

3. Without prejudice to Article 226 of the Treaty, any Member State may refer the Commission's decision to the Council within a time limit of one month. The Council, acting by a qualified majority, may in exceptional circumstances take a different decision within a period of two months.

CHAPTER VI

Final provisions

Article 24

Regulation (EEC) 3820/85 is repealed.

Article 25

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities.

It shall apply from January 2004.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

For the European Parliament For the Council

The President The President

ANNEX

Comparative Table

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the harmonisation of certain social legislation relating to road transport

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LEGISLATIVE FINANCIAL STATEMENT

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1. BUDGET LINE(S) + HEADING(S)

B2-704A

2. OVERALL FIGURES

2.1. Total allocation for action (Part B): EUR 40,000

2.2. Period of application: indefinite - annual expenditure

2.3. Overall multiannual estimate on expenditure:

a) Schedule of commitment appropriations/payment appropriations (financial intervention) (see point 6.1.1)

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b) Technical and administrative assistance and support expenditure(see point 6.1.2)

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c) Overall financial impact of human resources and other administrative expenditure (see points 7.2 and 7.3)

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2.4 Compatibility with the financial programming and the financial perspective

|X| Proposal compatible with the existing financial programming

| | This proposal will entail reprogramming of the relevant heading in the financial perspective

| | This may entail application of the provisions of the Inter-institutional Agreement.

2.5 Financial impact on revenue [25]

[25] For further information see a separate guidance paper.

|X| No financial implications (involves technical aspects regarding implementation of a measure)

OR

| | Financial impact - the effect on revenue is as follows:

Note: All details and observations pertaining to the method of calculating the effect on revenue should be included in a separate annex

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(Please state each budget line involved, adding the appropriate number of rows to the table if there is an effect on more than one budget line)

3. BUDGET CHARACTERISTICS

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4. LEGAL BASIS

Article 71 of the Treaty

5. DESCRIPTION AND GROUNDS

5.1 Need for Community intervention [26]

[26] For further information see a separate guidance paper.

5.1.1 Objectives pursued

The purpose of the advisory committee is

* to ensure a common application and enforcement of the Regulation by the competent authorities of Member States;

* to promote an exchange of views on developments in this field of the road transport sector; and

* to raise issues relating to the Regulation that can be addressed in a more thorough and decisive way within the committee.

The desired outcome is a more effective and uniform application of the rules throughout the Union and a proactive approach to developments arising in the sector

5.1.2 Measures taken in connection with ex ante evaluation

Internal consideration of appropriate issues to be addressed by the group

5.1.3 Measures taken following ex post evaluation

Internal assessment of group feedback on the impact of any points agreed

5.2 Actions envisaged and arrangements for budget intervention

- the target population(s) (specify number of beneficiaries if possible);

the European Union road transport industry in general and the drivers of goods and passenger transport by road in particular.

- the specific objectives set for the programming period (in measurable terms);

The advisory committee will assist in:

* drawing up the biennial reports which the Commission must produce under Article 16(2) of the Regulation - up until now input from Member States to such reports has been patchy and late thus reducing the impact and value of the reports;

* clarifying a common view on the implementation and enforcement of the rules throughout Member States;

* advising on refinements to the Community legislation in the light of current operations; and

* highlighting developments in the sector that have a bearing on the implementation of the Regulation and associated legislation.

The resources to service this committee in terms of secretariat and meeting arrangements are set out in Points 6 and 7 below. The costs will be met out of the current budget lines.

5.3 Methods of implementation

Advisory Committee as set out in Commission Decision 1999/468/EC.

6. FINANCIAL IMPACT

6.1 Total financial impact on Part B - (over the entire programming period

(The method of calculating the total amounts set out in the table below must be explained by the breakdown in Table 6.2. )

6.1.1 Financial intervention

Commitments in EUR million (to the 3rd decimal place)

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6.2 Calculation of costs by measure envisaged in Part B (over the entire programming period) [27]

[27] For further information see a separate guidance paper.

(Where there is more than one action, give sufficient detail of the specific measures to be taken for each one to allow the volume and costs of the outputs to be estimated. ).

Commitments in EUR

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If necessary explain the method of calculation

7. IMPACT ON STAFF AND ADMINISTRATIVE EXPENDITURE

7.1 Impact on human resources

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7.2 Overall financial impact of human resources

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The amounts reflect the total cost of the posts for 12 months as the operation is of unspecified duration

7.3 Other administrative expenditure deriving from the action

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The amounts are total expenditure for twelve months.

(1) Specify the type of committee and the group to which it belongs.

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(In the estimate of human and administrative resources required for the action, DGs/Services must take into account the decisions taken by the Commission in its orientation debate and when adopting the preliminary draft budget (PDB). This means that DGs must show that human resources can be covered by the indicative pre-allocation made when the PDB was adopted.

Exceptional cases, where the action concerned could not be foreseen when the PDB was being prepared, will have to be referred to the Commission for a decision on whether and how (by means of an amendment of the indicative pre-allocation, an ad hoc redeployment exercise, a supplementary/amending budget or a letter of amendment to the draft budget) implementation of the proposed action can be accepted.)

8. FOLLOW-UP AND EVALUATION

8.1 Follow-up arrangements

Ongoing

8.2 Arrangements and schedule for the planned evaluation

Following quarterly meetings

9. ANTI-FRAUD MEASURES

Cost statements of experts checked for conformity following the Commission rules

IMPACT ASSESSMENT FORM THE IMPACT OF THE PROPOSAL ON BUSINESS WITH SPECIAL REFERENCE TO SMALL AND MEDIUM-SIZED ENTERPRISES( SMEs)

Title of proposal

Regulation of the European Parliament and of the Council on the harmonisation of certain social legislation relating to road transport.

Document reference number

The proposal

1. Taking account of the principle of subsidiarity, why is Community legislation necessary in this area and what are its main aims*

The Community legislation is based on Article 71 of the Treaty. The organisation of the road transport sector is one of the essential factors in the implementation of the common transport policy. The provision of uniform, commonly understood standards in road transport has become increasingly important given the predominance of this mode of transport within the Community, the liberalisation of market access and the need to ensure there is no distortion of competition between operators. This is especially so given the pending adhesion of countries from Central and Eastern Europe. Clarifying and simplifying the rules which currently govern driving times and rest periods within the Union both for the industry and for the enforcement authorities will improve road safety and safeguard working conditions for those covered by the legislation.

The legislation also reflects the need to render the current rules computable for the new enforcement mechanism - the digital tachograph. This will promote a better respect for the rules in force.

The proposal builds on feedback from the industry, individuals, associations and government experts over the years which have all indicated the need for a better enforcement regime and draws on the conclusions of a current group of national experts who are reviewing the legislation in the light of its enforcement through the digital tachograph.

The impact on business

2. Who will be affected by the proposal*

- which sectors of business*

The proposal will affect all drivers of vehicles falling within the scope of the Regulation, namely

(a) vehicles whose permissible maximum weight exceeds 3.5 tonnes; and

(b) vehicles used for the carriage of more than 9 passengers including the driver.

Hence most road haulage and passenger transport businesses are affected.

- which sizes of business (what is the concentration of small and medium-sized firms)*

According to a 1995 report prepared by the social partners at European level, there are about 1.2 million jobs in passenger transport and some 2.1 million jobs in road haulage for hire or reward with 3-3.5 million in own account transport. According to a recent Eurostat report - 4/2000, within the Union an average of 3.3 persons are employed in a road transport company. The concentration of SMEs in the road transport sector is very high.

- are there particular geographical areas of the Community where these businesses are found*

In terms of employees, half the Member States have companies employing on average between 1 and 5 persons. These Member States tend to be on the periphery of the Union, e.g. Sweden, Finland, Ireland, or are Mediterranean countries, e.g. Spain, Italy, Greece. The highest average number of employees is found in BENELUX, France, Germany and the UK.

3. What will business have to do to comply with the proposal*

The transport operator will have to organise his business in such a way that the rules on maximum driving times, breaks and minimum rest periods are respected. For those who have already been doing so there should be no significant change as the basic rules on daily driving times remain unchanged. However there are changes in the rules in terms of rest periods and breaks where a balance has been struck between the need for flexibility and the protection of basic working conditions for the driver. There is also a statutory requirement upon the employer to ensure positively that his undertaking complies with the Regulation and making him liable with the driver for infringements.

4. What economic effects is the proposal likely to have*

- on employment

The new rules are designed to be more easily understood and enforced. Therefore enterprises will be able to comply more comprehensively with the legislation and employment conditions will be improved. The position of law-abiding operators will be strengthened, and they may well see their market share grow. From a road safety point of view, encouraging adherence to the rules should also ensure excessive fatigue does not impair a driver's performance and may therefore enhance the quality of service delivered.

- on investment and the creation of new businesses

The realisation that the current rules, simplified, will be capable of being more easily enforced will make transport operators and drivers more wary of breaking the rules and may encourage investment of time and money in the logistics end of their enterprise.

- on the competitiveness of businesses

The aim of the Regulation is to provide a common set of rules interpreted in a uniform way throughout the Union. This will facilitate a level playing field, reducing uncertainty in how the rules are enforced during international journeys across the Union. It will ensure that those firms which go beyond the law and thereby undercut their competitors will no longer consider it safe to do so.

5. Does the proposal contain measures to take account of the specific situation of small and medium-sized firms (reduced or different requirements etc)*

The proposal does not contain specific measures to this effect as the majority of undertakings are already within this category and are aware of the current rules.

Consultation

6. List the organisations which have been consulted about the proposal and outline their main views.

The current proposal draws on the conclusions of discussions held by representatives from the Member States comprising enforcement officers and policy officials who have been tasked by the Commission to review the driving time and rest period legislation. The measures are designed to render the current rules more comprehensible to the industry and enforcement authorities, as well as to facilitate the use of the new digital tachograph, which will shortly become obligatory for new vehicles.

The proposal takes on board criticisms that have been made of the current Regulation by the industry, associations, individuals, as well as government and legal experts. It seeks to address the general consensus of the need for better enforcement of the rules by rendering the rules as accessible and clear as possible.

The social partners were also consulted on 11 December 2000, 16 January 2001 and 5 February 2001. Their observations on the proposed provisions were noted and the proposal refined. Subsequent representations by different interest groups such as AUTF, UITP, IRU and EFT have also been taken into account.