Opinion of the Economic and Social Committee on the "Proposal for a Regulation of the European Parliament and the Council amending Council Regulation (EEC) No 881/92 on access to the market in the carriage of goods by road within the Community to and from the territory of a Member State or passing across the territory of one or more Member States as regards a uniform Driver Attestation"

(2001/C 193/06)

On 7 March 2001, the Council decided to consult the Economic and Social Committee, under Article 71 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 2 April 2001. The rapporteur was Mr Kielman.

At its 381st plenary session (meeting of 25 April 2001), the Economic and Social Committee adopted the following opinion with 60 votes in favour and two abstentions.

1. Introduction

1.1. The purpose of this proposal for amending Regulation (EEC) No 881/92 is to introduce a uniform document attesting that the driver of a vehicle engaged in the international carriage of goods by road is entitled to drive that vehicle on behalf of the haulier. The absence of such a document has led to serious enforcement problems, given that widespread irregular use is made of drivers, often from outside the Community.

1.2. This was shown to be so in a survey which the Commission conducted in the Member States in August 1999 and whose results were discussed in meetings with experts from the Member States and the social partners in the road transport sector. Drivers from outside the Community often take over the wheel at the frontier of a Member State, i.e. the regular national driver is replaced by an irregular driver, who then continues to drive the vehicle throughout the Community. These drivers receive low black-market wages and their working conditions are outside the Member States' control. Competition is distorted as a result.

1.3. Such practices are possible at the moment because effective control of the regularity of the driver's employment status is only feasible in the Member State where the haulier is established. Ignorance of the relevant laws and provisions of other Member States in that area and the sheer diversity of documents and languages they are drawn up in makes effective supervision impossible.

1.4. Member States have indicated that they would welcome the power to check whether the Member State where a haulier is established has authorised a driver to drive a vehicle on the haulier's behalf.

1.5. In addition, the social partners think that enforcement should be made more effective because the present situation leads to a distortion of competition between hauliers who use irregular drivers and those who do not or are not in a position to do so. More often than not it is large companies which are regularly engaged in international transport operations that can profit, while small companies or companies which only operate nationally do not have this possibility to the same extent.

1.6. The Commission survey also showed that the conditions of employment for irregularly employed drivers tend to be poor. This gives cause for concern about road safety in the eyes of the Commission.

1.7. It seems that most Member States and the social partners are in favour of a Community-wide solution in the form of a simple but conclusive "enforcement action" involving relatively little paperwork, such as a uniform driver attestation.

2. General comments

2.1. The aim of the proposal is to create a situation in the Community where the driver of a Community vehicle engaged in the international carriage of goods by road using a Community authorisation can be checked properly by the relevant Member State authorities as a result of the introduction of a uniform document, the driver attestation, at Community level.

2.2. These checks are all the more necessary now that the drivers of Community vehicles are being found time and again to come from countries outside the European Union. The authorities carrying out the checks are unable to determine whether these drivers are employed legally, as determined by the terms of employment applicable in the Member State where the haulier is established. The purpose of a uniform driver attestation is therefore to prevent unfair competition with regard to wages and terms of employment.

2.3. Since a Community authorisation is already required, within the framework of market access, by hauliers operating for hire or reward in the Community, it is an obvious move to seek to link the driver attestation to the Community authorisation. The proposed amendment requires that the driver of a vehicle engaged in international carriage must be in possession of both a Community authorisation and a driver attestation. The Council of Ministers decided at its meeting on 20-21 December 2000 that such an attestation is to be required only in the case of drivers who are nationals of non-EU countries. This decision was taken in order to keep the administrative burden to a minimum, especially with regard to the practicability of the checks, and to allow businesses as much flexibility as possible. The Committee endorses this link between the attestation and the Community authorisation and the Council of Ministers' decision to restrict the attestation to drivers of EU-registered vehicles who are nationals of non-EU countries.

2.4. The Commission does not think that a driver attestation has to be carried on board a vehicle in all instances. For example, if the names of the driver and the holder of the Community authorisation are identical (as in the case of the vast majority of so-called "owner drivers"), a Community authorisation suffices. In all other cases a driver attestation will be required on top of the Community authorisation if the driver is the national of a non-EU country. The Committee approves this solution since it will reduce the administrative burden.

2.5. The Commission proposal amending Regulation (EEC) No 881/92 relates only to the carriage of goods by hauliers operating for hire or reward, since a Community authorisation is only required for this type of transport. Own-account transport is therefore excluded, since this is not subject in the EU to the rules governing access to the profession of transport operator. However, own-account operators are also engaged in international transport even though their share of the market may be small. The Committee thinks that if a driver attestation is to be introduced for the driver of a Community vehicle used for the carriage of goods by a haulier operating for hire or reward, it should be made clear how problems could arise for the drivers of vehicles engaged in own-account international haulage. The Commission proposal contains nothing to this effect.

2.6. The Commission thinks that implementation can be left to a very large extent to the Member States because the driver attestation will simply certify that the relevant national legislation and provisions governing the employment of drivers have been respected. Each Member State can therefore choose the method of implementation that involves the least paperwork. The Committee considers this to be a practicable and pragmatic approach.

2.7. Although, generally speaking, drivers from non-EU countries are highly trained, there is concern in practice about the health hazards faced by them as a result of their long working hours and the long periods they spend in the cabins of their vehicles (they almost invariably rest and sleep in their cabins, too). The Committee would urge that special attention be paid to the possible consequences this may have for traffic safety.

3. Specific comments

3.1. The driver attestation is to be issued by a Member State, at the request of a haulage company established on its territory, for each person lawfully employed or put at the disposal of the haulage company to drive vehicles engaged in international road haulage. Thus, Member States may not issue driver attestations for drivers who are only employed abroad. The Committee thinks this should be so. The Committee would also emphasise that the Member States must be sufficiently mindful of the need for a fair and uniform interpretation of what is meant by a business's place of establishment. It is necessary to avoid a situation where in one Member State this is taken to mean the base from which a business is run permanently in practice, whereas in another Member State it could simply be a PO box address or branch where non-EU drivers are employed.

3.2. The layout of the driver attestation closely follows that of the Community authorisation. This serves to underline the close link between the two. The attestation, just like the Community authorisation, will take the form of a paper document and will not, for example, be a plastic card. This will save time and meet the need for flexibility called for by businesses. The Committee agrees with this.

3.3. The Member State issuing the driver attestation may determine the period of validity in order to allow for flexible implementation (e.g. so that the attestation's validity coincides with the duration of a contract of employment). The maximum period of validity is to be five years. The attestation is renewable, but only if the conditions under which it was issued have not changed. If this is not the case, the haulage company must return the attestation immediately to the issuing authority. Since the practice adopted towards the Community authorisation has been followed in fixing the maximum period of validity, the Committee gives its approval.

3.4. Member States are to be obliged to check regularly whether the conditions under which an attestation was issued have not changed. Despite the fact that implementation is entirely a matter for the Member States, the Committee thinks that, by analogy with the arrangements under Regulation (EEC) No 3821/85 for checking driving and rest periods, agreement should be reached at Community level on a minimum number or percentage of checks to be carried out.

3.5. The Commission draws a parallel, as regards the punishing of infringements, with the measures applicable to the Community authorisation. The Committee thinks that this is the right approach.

4. Summary and conclusions

4.1. The Committee agrees in general with the Commission proposal for introducing a driver attestation for the international carriage of goods by road, for this is a relatively simple way of way of countering unfair wage competition with the aid of a Community-wide instrument. It also agrees with the Council of Ministers' decision to require the attestation only for non-EU drivers.

4.2. The Committee would like the Member States to adopt a more uniform approach in their interpretations of the term "establishment", in response to the question of whether driver attestations may only be issued in the Member States where companies are physically established, or whether they can also be issued where a company has a branch or even a PO box address from where haulage operations are not permanently conducted.

4.3. The Committee points out that the Commission wishes to keep the paperwork associated with the introduction of the driver attestation to a minimum, and therefore agrees with the Commission's plan to link the attestation to the Community authorisation.

4.4. In cases where the name on the Community authorisation is that of the driver (as in the case of the vast majority of so-called "owner drivers"), the Commission proposes that no driver attestation be required and that a Community authorisation by itself be sufficient. The Committee endorses this, since it will reduce the administrative burden.

4.5. Since own-account transport is exempt from a Community authorisation, no driver attestation is to be required for the driver of a vehicle engaged in international own-account haulage. There is nothing to this effect in the Commission proposal. The Committee thinks that this category of drivers should be advised on how to act if checked in another Member State.

4.6. With regard to the checks to be carried out by Member States on driver attestations that have been issued, the Committee thinks that the Commission should indicate the minimum number/percentage that should be checked. This will help to ensure that the checks are representative and effective and that the administrative burden is not too high.

Brussels, 25 April 2001.

The President

of the Economic and Social Committee

Göke Frerichs