EUROPEAN COMMISSION Brussels, 31.5.2017 SWD(2017) 184 final COMMISSION STAFF WORKING DOCUMENT Ex-post evaluation of the social legislation in road transport: Regulation (EC) No 561/2006 on driving times, breaks and rest periods of drivers, Directive 2002/15/EC on the working time of road transport mobile workers and Directive 2006/22/EC on enforcement requirements.



FINAL REPORT Accompanying the document Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) 561/2006 as regards on minimum requirements on maximum daily and weekly driving times, minimum breaks and daily and weekly rest periods and Regulation (EU) 165/2014 as regards positioning by means of tachographs



and



Proposal for a Directive of the European Parliament and of the Council amending Directive 2006/22/EC as regards enforcement requirements and laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector

{COM(2017) 277 final}

{COM(2017) 278 final}

{SWD(2017) 185 final}

{SWD(2017) 186 final}

{SWD(2017) 187 final}



Table of Contents 1 Introduction 1.1 Purpose of the evaluation 1.2 Scope of the evaluation 2 Background to the road transport social legislation 2.1 Description of the initiative and objectives 2.2 Baseline 3 Evaluation questions 4 Methodology 4.1 Quantitative and qualitative data collection 4.2 Data analysis 4.3 Limitations 5 Implementation state of play 5.1 Implementation of the road transport social legislation 5.2 Market context and developments 5.3 Social challenges in the sector 6 Answers to the evaluation questions 6.1 Relevance 6.2 Effectiveness

6.3 Efficiency 6.4 Coherence and coordination 6.5 EU added value 7 Conclusions 8 Annexes 8.1 Annex I - INTERVENTION LOGIC DIAGRAM 8.2 Annex II - Procedural information concerning the process to prepare the evaluation 8.3 Annex III –: Stakeholder consultation – synopsis report 1Introduction The EU social rules in road transport have been in place for quite a long time almost unchanged: the provisions on driving times and rest periods since 1969 and the working time rules since 2002. But the social environment of the road transport sector has changed significantly over last decade. These changes result from the effects of: the EU enlargements in 2004 and 2010, an economic downturn in 2007-2008 and the Eurozone crisis that started in 2009. This has led to increased competition in the sector, making the transport services even more time- and price-sensitive. On the one hand, this is regarded as a positive development as it made the sector more efficient. On the other hand, this may lead to distortions of competition between road transport undertakings at the expense of the employment and working conditions of road transport workers. Fierce competition on the internal market has also given rise to the adoption of unilaterally national measures, which may be justified on the social grounds, but may jeopardize the smooth functioning of the internal market. All these challenges should be addressed firstly by verifying the adequacy of the current EU legislative framework: whether it still meets the needs of the sector and serves its initial objectives of improving working conditions, road safety and ensuring fair competition. 1.1Purpose of the evaluation This ex-post evaluation concerns the EU social legislation in road transport, which consists of three interconnected and complementary legislative acts, which we are also referred to as the Social rules: ·Regulation (EC) No 561/2006 on the harmonisation of certain social legislation relating to road transport, called also Driving Time Regulation; ·Directive 2002/15/EC on the organisation of the working time of persons performing mobile road transport activities, called also the Road Transport Working Time Directive. It therefore takes precedence over the general Working Time Directive ·Directive 2006/22/EC on minimum conditions for the implementation of social legislation relating to road transport activities, called also the Enforcement Directive.

The provisions of these legislative acts apply to road transport operators and to professional drivers (employed and self-employed) engaged in carriage of goods by vehicles above 3.5 tons and those engaged in carriage of passenger by vehicles for more than 9 persons, including a driver. The purpose of this evaluation is to analyse the actual performance of this legislative framework in terms of achieving its key objectives and assessing it by taking account of developments on the market and in the sector as well as relations with the internal market rules in road transport. In particular, this evaluation aims to verify which provisions work well for the sector and which ones do not in terms of their substance and enforceability and why, whether there are any inconsistencies, legal loopholes, red tape or other internal or external factors, which hamper the achievement of the policy objectives. The results of this evaluation should serve as a foundation for considerations on how to improve the current legislative framework and its implementation. They may be used as an input into an impact assessment of possible policy developments. 1.2Scope of the evaluation The evaluation assesses the implementation of the social legislation in the years 2007-2014 and its main effects taking account of the developments in the EU road transport market resulting from various overarching trends, such as the economic crisis, continued enlargement of the EU, internationalisation of transport operations. The period for assessment starts when the actual implementation of the legal provisions of the above mentioned three legislative acts commenced in 2007. It continues through the period marked by the emergence of new business models and employment arrangements, complex and long sub-contracting chains and changes in the working conditions of drivers. It ends with the year 2014 for which the latest national statistics on the implementation of the legislation are available. Specifically, the implementation of the following social rules has been evaluated: Regulation (EC) No 561/2006 - repealed Regulation (EEC) 3820/85 and applied in full since 11 April 2007, with the exception of a limited set of provisions related to tachographs, which entered into force on 1 May 2006. It sets limits on drivers’ permissible daily, weekly and fortnightly driving time, as well as minimum requirements for breaks from driving, and minimum daily and weekly rest periods. Directive 2002/15/EC - supplements the provisions of Regulation (EC) No 561/2006 by setting a limit on mobile workers’ working time, i.e. time spent working whether or not this involves driving. It is a lex specialis to the general working time Directive 2003/88/EC and hence, as stipulated in Article 14 of the latter directive, takes precedence over the general working time Directive for the mobile workers included in its scope . The deadline for transposition of Directive 2002/15/EC was 23 March 2005, but actually only in 2007, following the infringement proceedings; the majority of Member States had their transposition measures in place. As of 23 March 2009 the Directive had become also applicable to self-employed drivers, who until then were temporarily excluded from its scope. Directive 2006/22/EC - repealed Directive 88/599 and specified that the relevant national transposing measures shall be effective as of 1 April 2007. It imposes minimum requirements for Member States to check compliance with the provisions of Regulation (EC) No 561/2006 and Regulation (EU) No 165/2014. The road social legislation works together with tachograph Regulation (EU) No 165/2014, which sets the requirements on the installation and the use of tachographs in road transport. The provisions of Regulation (EU) No 165/2014 (which repealed the Regulation (EEC) 3821/85) are out of scope of this study. However, the tachograph rules are important element in this evaluation as they provide basic tools for monitoring and control of compliance with the provisions of driving time Regulation (EC) No 561/2006. 2Background to the road transport social legislation 2.1Description of the initiative and objectives The three legislative acts constituting the EU social legislation framework in road transport share the same policy objectives: (1) improving working conditions of drivers, (2) enhancing road safety by averting driver's fatigue and (3) ensuring undistorted competition among companies. As a global cross-cutting objective, these legal acts aim to support the completion of common market for road transport services ensuring at the same time the adequate working conditions of drivers. In particular, Directive 2002/15/EC identifies the need to protect workers against adverse effects on their health and safety caused by working excessively long hours, having inadequate rest or disruptive working pattern. As specific objectives, the social legislation aimed at preventing infringements and ensuring that the existing social provisions are interpreted, applied and enforced in a uniform manner in all Member States. In particular, Regulation (EC) No 561/2006 identifies in its recitals that effective and uniform enforcement of the provisions is crucial if the objectives are to be achieved and the application of the rules is not to be brought into disrepute. By setting minimum common standards for checking compliance with the Regulation's provisions (through Directive 2006/22/EC) and introducing co-liability and exteriority of infringements principles it also aimed to create a common enforcement space and promote compliance culture. As operational objectives, the legislative acts aimed at laying down common, simplified, clear and enforceable rules, determining the responsibilities of Member States authorities, transport operators and of drivers with regard to compliance with the provisions and introducing measures to facilitate more effective and uniform checks and sanctions throughout the European Union as well as to promote cooperation between the Member States in this regard. The intervention logic diagram in annex 1 describes the links and causal relationships between the problems and/or needs, broader policy goals, the general, specific and operational objectives that the specific policy measures were designed to address, and the specific actions for addressing those problems and/or needs. In order to achieve these objectives, the following provisions have been introduced to the existing general legislative framework: -an obligation of a transport undertaking to organise the driver's work in such a way that he/she is able to comply with the Regulation's provisions;

-co-liability principle throughout the transport chain for infringements committed against the Regulation; -specific provisions for night work of road transport mobile workers; -requirement on Member States to ensure that mobile workers are informed of the national working time restrictions and that records are kept of working time; -uniform enforcement requirements: •requirement on Member States to establish national risk rating system that can be used to enhance the effectiveness of enforcement by targeting the controls; •requirement to carry out a minimum number of controls at roadside and at the premises of the undertakings in order to verify the driver’s and operator’s compliance with driving times provisions and tachograph rules; •obligation to establish a common range of infringements divided into categories according to their gravity; •obligation to carry out concerted cross-border control activities and joint training programmes for enforcers; -administrative cooperation requirements: •a principle of extraterritoriality of controls and sanctions; •establishment of national bodies for intracommunity liaison to exchange information and data between Member States. 2.2Baseline The Regulation (EC) No 561/2006 repealed a 20-year old legislation (Regulation (EEC) No 3820/85) and was accompanied by the introduction, for the first time, of the EU minimum requirements for enforcement set out in Directive 2006/22/EC. In the same decade the first sector-specific working time Directive 2002/15/EC was adopted. It was based on the Commission's initiative following the failure of the social dialogue launched in the nineties to reach the social partners agreement in this field. The adoption of these EU social rules was neither preceded by a comprehensive ex-post evaluation nor accompanied by a full-fledged impact assessment. Therefore, the quantified information on the baseline situation prior to adoption of the legislation is not available. The need for introduction of new or revised provisions had been emerging on a case-by-case basis in response to complaints, petitions, infringements ascertained, implementation difficulties raised by national authorities or other stakeholder organisations, as well as requests for clarifications by the Commission or interpretations by the European Court of Justice. The European Court of Justice issued 27 rulings concerning the interpretations of the provisions of the previous legal acts, namely: Regulation 543/69 and then Regulation (EEC) 3820/85 as well as a related tachograph Regulation (EEC) No 3821/85. The problems and needs that this legislation was originally intended to address are outlined below: • Unclear or inconsistent provisions on organisation of driving time, rest periods, and other work of drivers. The flexibility allowed by the preceding legislative act had often been at the expense of consistent interpretation and effective enforcement. For instance, the provisions on compensation for reduced daily or weekly rest made the calculation of permissible schedules very complex. The absence of specific definitions had led to individual interpretations, which in turn resulted in variations in enforcement and four cases being referred to the European Court of Justice. For example, there was a lack of clarity as to which activities counted as a period of work, rest, or availability time for mobile workers. The daily and weekly driving times, accumulated and continuous driving periods were not defined in clear terms what each period comprises, which lead to divergent application. Finally, there was a need to update the rules in order to reflect changes that had occurred in the transport sector since the prior legislation was drafted in the 1980s. Since then, certain activities traditionally undertaken by government had been privatised, and therefore the number of activities subject to commercial competition had increased. The fact that the rules did not reflect those 'privatisation' developments lead to increasing number of commercial transport activities being excluded from the driving and resting time rules. In addition, some of the vehicles that had previously been granted exemptions from the rules, because they undertook short distance journeys or operated within a restricted area (such as specialised breakdown vehicles) were actually being used in other ways, and hence there was a need to update the list of exemptions permitted to reflect the market conditions. • Lacking or ineffective and inconsistent enforcement of existing social rules. Compliance with the social rules in road transport was considered to be low, as shown in the biennial implementation reports, mainly due to laxity by national authorities in enforcing the rules. The 2001 Transport White Paper highlighted that controls and penalties needed to be tightened up by making controls and penalties more consistent across Member States, and by also increasing the number of controls. The European Parliament had also often called for better enforcement of the social rules, particularly during debates on the biennial Commission report on the implementation of Regulation (EEC) No 3820/85. Within the road transport sector the social partners had long called for better enforcement of the rules to promote a level playing field within the single market and ensure that the driver’s working conditions provided for in the legislation are respected. There were also problems with enforcement caused by “loopholes” in the rules themselves. One such loophole was the fact that drivers who switched between vehicles that were within and outside the scope of the Regulation were not required to provide records of all of their driving activities. This created a risk that drivers could be driving in-scope vehicles without having taken sufficient rest and not be detected. There was therefore a need to require drivers of in-scope vehicles to provide records of all their driving activities, including the driving of out-of-scope vehicles. A second apparent “loophole” in the rules was that offences detected in one Member State were not being sanctioned simply because they were committed on the territory of another Member State. There was therefore a need for Member States to enable their enforcement authorities to sanction infringements that had been committed on the territory of another Member State and not previously sanctioned.

• Unclear liabilities of drivers, operators, and others in the logistics chain. There was a lack of clarity about the extent to which drivers, operators, and others in the logistics chain could be held liable for infringements of the social rules. For example, Regulation (EEC) No 3820/85 stated that undertakings should organise drivers’ work in such a way that drivers are able to comply with the driving time rules, but it was still unclear about the extent to which undertakings could be held liable for infringements committed by drivers acting contrary to the instructions of the undertaking. The responsibilities of others in the logistics chain, such as consignors, freight forwarders, tour operators, principal contractors, subcontractors and driver employment agencies, whose demands could have also incited driers' non-compliance with the driving and resting time thresholds, were also not specified . Therefore, there was a need for clearer legal provisions on the responsibilities of different parties in the logistics chain and the extent to which these parties could be held liable for infringements. The need to address the issue of liability was also identified as a means to ensure a uniform and effective approach to enforcement. • Poor cooperation between Member States on uniform application of the rules. The 2001 Transport White Paper indicated the need to encourage the systematic exchange of information between Member States, to co-ordinate inspection activities and to promote the training of inspecting officers. A number of various authorities within a Member State were typically responsible for enforcing European road transport social legislation, rather than having a single coordination point. This lead to a lack of coordination of checks within the Member State as well as difficulties for the enforcement authorities of neighbouring Member States to identify correctly the competent authority with which they should cooperate. Another problem with achieving a uniform application of the rules was that Member States had devised their own individual interpretations of the EU provisions and a regular exchange of information and good practices between Member States was not existent which further hampered the consistency and efficacy of enforcement throughout the EU. The identified issues could not be quantified due to non-existence of data or only very limited documentation on state of play and effects of the preceding legislation in terms of working conditions, road safety and level playing field. Information on the previous situation was also sought from stakeholders and literature to inform this study, but results could not be obtained. Hence, only a qualitative description of the baseline is possible. It was expected that the lack of EU action to revise the road social legislation would lead to the following difficulties: (a) enforcement would be less effective due to: ·the continued use of flexibilities (particularly the provisions on compensation for reduced daily or weekly rest), which would have been difficult to compute using digital tachographs; ·continued different interpretations of the provisions, owing to the absence of specific definitions; ·inconsistent controls and penalties; ·poor cooperation between Member States. (b) scope would be inappropriate due to: ·trends toward privatisation of activities in the transport sector; ·changes in the usage patterns of vehicles that have been previously exempted or derogated; ·loopholes in the provisions that would be increasingly exploited. (c) responsibilities would be unclear due to: ·unclear provisions on liability; ·inconsistent enforcement practices concerning liability. Incoherent enforcement systems would have contributed to distortions in the market. As a result, this would create a risk that compliant undertakings would be in a disadvantaged competitive position in comparison with others who would increasingly infringe the rules in order to gain competitive advantage. In addition, the non-compliant operators would exploit the situation in countries with weak enforcement and/or low level of penalties where the infringements are less prone to be detected and/or sanctioned. Eventually, this would lead to increases in working hours and applying disruptive working patterns, have adverse effects on drivers’ working conditions, contribute to their fatigue and consequently impact road safety. The intervention logic in annex 1 describes the links and casual relationships between the problems and/or needs, broader policy goals, the general, specific and operational objectives that the specific policy measures were designed to address as well as the expected outputs and results of the actions undertaken to achieve the objectives.

3Evaluation questions The evaluation addressed five following evaluation criteria: relevance, effectiveness, efficiency, coherence and coordination, EU added value. The 12 main evaluation questions cover all the evaluation criteria as described below. ·Relevance The evaluation looked at whether the current legislative framework remains adequate to address the social, safety and competition issues identified and whether it still responds to the needs of the sector in view of the changes in the road transport market. ·Effectiveness The effectiveness of the social legislation refers to the realisation of the expected effects. The evaluation looked at whether the legislation contributed to more uniform application and enforcement and to better compliance with the rules in force. Under this criterion, the contribution of various inputs to achieving policy objectives of increasing road safety levels, improving working conditions and ensuring level playing field was also carefully assessed. Unintended positive and negative effects were also investigated. ·Efficiency Under the efficiency criterion, the analysis covered the regulatory cost components involved for the different stakeholders (national administrations, transport operators, drivers) to comply with the provisions of the social legislation. This includes compliance costs and administrative burden in relation to enforcement and implementation of the measures. ·Coherence and coordination The evaluation looked at the coherence of the framework of social rules in road transport, both internally (e.g. gaps or overlaps between the relevant legal acts and with other road transport legislation) and externally in terms of coherence with challenges and objectives of EU transport and social policies. ·European Added Value Finally, the analysis of EU added value looked at whether action at the EU level was the most appropriate. 4Methodology As a first step, the Commission made its preliminary assessment on the implementation of the social provisions and the enforcement regime based on information collected over years 2007-2014 from various stakeholders: national administrations, trade unions, road transport associations, enforcement organisations, drivers and citizens. The rules in force have been assessed on case-by-case basis by analysing various petitions, complaints, requests for clarifications, discussions at the Committee on Road Transport as well as interpreting judgements of the Court of Justice , which have had an important impact on the implementation of the relevant social provisions. The implementation reports submitted by Member States regularly every two years also served as a relevant source of quantitative and qualitative data for assessing implementation efforts and challenges and level of compliance with the rules in force. Secondly, to collect hard data and to analyse the effects of the legislation an external consultant was commissioned. The aim of the support study was to provide an independent evidence-based assessment of the implementation of the social legislation in road transport over the period of 2007-2014 as well as of its effects on the road transport market and the needs it aim to satisfy. The support study was executed by the consultant over the period of 12 months and ended with a publication of the final report in June 2016 . 4.1 Quantitative and qualitative data collection The consultant used a wide range of research tools during the study, starting from a desk research, where almost 150 pieces of literature were reviewed, including Commissions implementation reports, and exploratory interviews with 6 organisations at EU and national level. Then tailored surveys were performed addressing 5 different target groups, namely: national transport ministries, enforcement authorities, road transport undertakings, trade unions and industry associations. Each survey was pilot-tested before it was distributed more widely among stakeholders. Then the main interview programme, including follow-up interviews from the survey, was performed to gather further insights into experiences of stakeholders. This related in particular to the functioning and effectiveness of national enforcement and the reasons for trends in infringement rates seen (for ministries and enforcers), and a better understanding of challenges and best practices in compliance (for undertakings and associations). The consultant also carried out 8 study visits, including a participation in roadside controls and check at premises, visit to French and Belgian transport undertakings, drivers' interviews at parking areas in Italy. In addition case study investigations were carried out in 9 Member States: Belgium (7 interviewees), France (6), Germany (5), Italy (12), Sweden (4), Spain (1), Poland (4), Romania (3) and UK (5). The analysis involved a detailed review of national legislation and enforcement practices, a study of issues/problems encountered by each country and a review of national market conditions and a review of additional datasets/reports that were available at the national level.

The stakeholder engagement activities are summarised in Table 1. The provided numbers do not include the six exploratory and eight pilot testing interviews that were carried out before launching the stakeholder questionnaires. Responses were received from the national ministries of 15 Member States, with eight from the EU-15 and seven from the EU-13. Type of stakeholder Approached Responded % response rate Targeted Surveys National ministries 119 15 13% Enforcement authorities 142 52 37% Undertakings survey (a) 1269 n/a Trade union survey 102 14 (b) 14% High level (general) survey (c) 198 64 32% TOTAL (surveys) 1441 Interviews National ministries 9 7 78% Enforcement authorities 25 8 32% Industry associations 16 12 75% Undertakings 41 14 34% Trade union 10 5 50% Specific sectors 11 5 45% Other 2 1 50% TOTAL (interviews) 114 53 46% Drivers (d) n/a 37 n/a Notes: Stakeholder consultation took place from June 2015 until November 2015. Response rates are approximate, as some organisations forwarded the request to participate to other organisations on the study team’s behalf – consequently it is not known how many organisations were contacted in total. (a) Undertakings surveys were distributed via national associations; hence it is not known how many organisations were contacted in total; (b) A number of coordinated responses were received from trade unions; (c) It was dedicated to identification of high level, cross-cutting views on the relevance, effectiveness, efficiency and added value of the legislation it was answered by associations of transport operators (50), NGOs (4), individual experts (3) and other types of association(7); (d) Driver interviews were carried out during study visits Overall, the stakeholder response rate was good taking into account the length and complexity of the questionnaires, and also considering the highly technical and specific nature of the road social legislation. The response rate for the questionnaire parts on Directive 2002/15/EC was slightly lower than for Regulation (EC) No 561/2006. The quality of the responses was overall good. Questions on quantitative elements remained frequently unanswered reflecting a lack of data availability. In parallel to those consultation activities carried out by the consultant the Commission undertook the actions aimed at initiating a high level structured discussion on the shortcomings of the current road transport social legislation and of its enforcement and encouraging the active participation of the EU and national stakeholders in this process. The following consultation events have been organized and attended by the Commission services throughout the year 2015 and 2016: ·The High Level Conference 4 June 2015 titled 'Social Agenda for Transport', which launched the wide debate on social aspects in transport sector; ·A series of dedicated seminars targeted at EU level stakeholders and concerning the road transport issues, including the one on social rules and enforcement of 23 October 2015, ·the orientation debate on the social aspects in road transport organized by the Transport Council on 10 December 2015, ·the Road Transport Conference on 19 April 2016 with dedicated workshops, including the one on internal market and social aspects of road transport, As the aftermath of those meetings the Commission has received several position papers on the issues raised, from the EU and national stakeholders, including national authorities as well as the business and workers organisations. In September 2016 the Commission launched an open public consultation, which aimed, among others, at validating the problems identified in the earlier consultation activities and identifying other problematic issues that had not been revealed before. The consultation was composed of two types of questionnaires: (a) non-specialised one addressed to individual respondents: drivers, transport operators, shippers, freight forwarders, other actors in the transport operation chain and citizens, and (b) specialised one addressed to institutional respondents: national authorities, enforcement bodies, workers' organisation and industry associations. The consultation ended on 11 December 2016 yielding 1411 responses in total, including 1209 replies to non-specialised questionnaire and 169 replies to specialised questionnaire. The 1209 responses from individual respondents provide a good representation of key stakeholders: drivers/other road transport workers (31%), road hauliers (22%), passenger transport companies (17%). A total of 23 Member States were represented by the respondents. Among 169 responses received from institutional respondents, the majority of them were from industry associations (54%) and workers’ organisations (13%). The remaining stakeholders represented national authorities (national enforcement authorities, regulatory authorities, enforcement authority organisations) and others (academic bodies, EU governmental authorities, intergovernmental organisations). A total of 24 countries were represented by the respondents. The detailed overview of stakeholder groups participating in the open public consultation is presented in annex III together with the results of all consultation activities are discussed further in the report. 4.2Data analysis Based on data collected from various sources through desk and field research the consultant carried out thorough analyses focusing on two key issues: (1) developments and trends as regards compliance levels over the period of 2007-2014 and (2) developments in cost-effectiveness of enforcement. These analyses were carried out taking account of economic and social changes in the road transport market that occurred in this period. In addition, the responses and position papers submitted directly to the Commission in the framework of the described above additional consultation activities carried out by the Commission, have also been taken considered in the process of the data analysis. In particular, the analyses included identification and assessment of main factors (internal and external) affecting positively and/or negatively compliance level. These included: changes in functioning of the transport market, quality (relevance, clarity, consistency) of legal provisions, quality and accessibility of infrastructure, compliance discipline, enforcement regime, dissuasiveness and effectiveness of penalty systems, awareness of transport actors of the correct application of the rules. The analysis of developments and trends in enforcement involved the assessment of the effectiveness and efficiency levels as well as harmonisation of enforcement practices across the EU. The main factors contributing to these developments included a clarity and enforceability of provisions, enforcement capacities of Member States, cooperation and coordination of control activities between Member States.

An analysis on cost-benefit and cost-effectiveness (see below section 4.3 on limitations) was also carried out in the course of the ex-post evaluation study. This includes the assessment of regulatory costs and benefits for drivers, transport undertakings and national authorities under the legislation and potential costs and savings from modernisation of the current framework. The results of these analyses fed into a comprehensive assessment of changes in road safety levels, quality of working conditions and distortions of competition being a consequence of the combination of the implementation of the social legislation as well as the internal factors (e.g.: quality and clarity of the legal provisions, number and type of checks, penalty systems) and external factors considered (e.g.: drivers’ wages, quality and accessibility of infrastructure, presence of international operators). These analyses assisted in providing full-fledged responses to the evaluation questions. Their results are presented in sections 5 and 6. 4.3Limitations The main limitation in gathering a neutral quantified data was linked to the fact that many types of impacts of the social legislation are of a subjective nature and do not offer unbiased quantifiable baseline indicators (e.g. some aspects of working conditions, fatigue and well-being of drivers). Therefore, based on the information gathered from the literature review, surveys and interviews, quality indexes have been established to better understand the functioning of the social legislation. However, the results need to be interpreted with caution as regards the impacts on achievement of policy objectives. With regard to other indicators that could be measured quantitatively (e.g.: number of controls, infringement rates, number of vehicles fitted with digital tachograps, enforcement capacities etc.), the main limitations were gaps and insufficient detail in the national statistics. Therefore the complete picture could not be established in particular when trying to evaluate a progress over time. In addition information on quantitative indicators not included in the EU and national datasets (e.g.: costs of controlling and reporting, number of prosecutions of co-liable parties, etc.) were extremely sparse in the literature or not known to the stakeholders. In particular, for the Working Time Directive the data was more qualitative and sparser. This is mainly because Member States are not obliged to collect and report quantified data resulting from controlling compliance with the working time provisions. For passenger transport the availability of quantified information and evidence occurred to be poor due to the highly fragmented nature of the industry in terms of authorities involved, types of market operators. Therefore, it was difficult to find alternative sources of information in addition to interviews with passenger transport sector, to carry out triangulation of data. These data availability limitations had to be mitigated by using additional data sources although of more general nature (e.g.: European Working Conditions Survey, CARE database on fatalities) and by making qualitative analyses, including assessment by stakeholders. Moreover, in some instances the absence of data and insufficient quantifiable information resulted in the choice of the cost-effectiveness analysis over the cost-benefit analysis. 5Implementation state of play 5.1Implementation of the road transport social legislation The driving and resting time Regulation (EC) No 561/2006 and both directives - enforcement Directive 2006/22/EC and road transport working time Directive 2002/15/EC - were designed to provide for the legal framework of comprehensive, clear and enforceable rules to drivers, operators and national authorities. Most parts of the Regulation came into force on 11th April 2007. However, certain elements relating to tachographs were applicable as of 1st May 2006. The Road Transport Working Time Directive complements the Regulation (and its predecessor Regulation (EEC) No 3820/85), which does not stipulate maximum hours for activities other than driving, such as loading and unloading and other work in or outside the transport sector, which may have bearing on driver's fatigue. The Directive only applies to activities and drivers falling in the scope of Regulation or the AETR Agreement. Since March 2009, also self-employed drivers are subject to the Directive's provisions. The employed drivers who are excluded from the scope of this specific Road Transport Working Time Directive fall, in principle, under the scope of the horizontal working time Directive 2003/88/EC applicable to all sectors of the economy. The enforcement Directive 2006/22/EC entered into force on 4 April 2006 and was supposed to be transposed by Member States into their national legal system by 1 April 2007. However, by that deadline only 9 Member States notified their correct transposing measures. The timely and correct transposition was of paramount importance for achieving the policy objectives, as the Directive required setting up a system of appropriate and regular checks, both at roadside and on the premises of transport undertakings to control compliance of drivers and of operators with the provisions of the driving time regulation as well as with the provisions on the installation and the use of tachograph, as set out in then applicable Regulation (EEC) 3821/85. Therefore, the Commission launched infringement procedures for non-communication or non-compliance against 18 Member States who failed to fulfil their obligation of transposing and implementing the Directive's provisions. According to the assessment of the implementation by the Member States of the legislation in the period 2007-2014 the social provisions and the enforcement regime harmonised several aspects of the operation of road transport undertakings with regard to work organisation of drivers, uniform rest and working hours of drivers, clarified to certain extent responsibilities of drivers, transport operators and of relevant authorities of Member States. In particular, Directive 2006/22/EC by putting in place harmonised requirements for carrying out controls rendered enforcement activities more effective and uniform, which can be concluded from the findings in the subsequent Commission implementation reports. The regular monitoring of the developments in the implementation by the Member States of the Regulation was made possible thanks to Article 17 of Regulation (EC) No 561/2006 which requires Member States to report every two years to the Commission on the application of the legislation. Also Article 13 of Directive 2002/15/EC provides that Member States should report to the Commission on the implementation of the Directive, indicating the views of the social partners. Based on the analysis of these national submissions the Commission draws up a regular biennial report for the European Parliament and for the Council. Since the entry into force of the legislation in 2007 until the latest available data from controls from 2014 the Commission adopted 4 biennial reports based on national submissions by Member States. They contain both quantitative and qualitative data on checks carried out at roadside and premises, including concerted checks, offences detected and other relevant national initiatives undertaken. The legislation also established the basis for cooperation among Members States and between Member States and the Commission. This includes the network of national bodies for intracommunity liaison to ensure coordination in carrying out concerted checks and establishing joint training programmes on enforcement, to facilitate exchange of data, experience and intelligence on application of the provisions. The Committee on Road Transport was established in line with the Regulation's provisions to serve as a forum for Member States, the Commission and the EU stakeholders to examine the cases of diverging understanding, application and enforcement of the provisions. The main tangible outputs of this cooperation between Member States and facilitated by the Commission were commonly established clarification notes, guidance notes, decisions on recommended approaches and good practices on enforcement, which aimed to provide common understanding of the rules in force. The monitoring of the implementation of the legislation over years 2007-2014 revealed that national authorities and the industry faced significant difficulties with interpreting uniformly, enforcing consistently and complying effectively with the rules in force. Therefore, in order to ensure correct, harmonised application and enforcement of the common EU rules, the Commission, in cooperation with Member States and the EU stakeholders, has undertaken a number of non–legislative initiatives and legislative measures. They include, in particular: seven guidance notes on implementation and enforcement, seven clarification notes, Commission Directive on categorisation of infringements (Directive 2009/5/EC), Commission Recommendation on guidelines for best enforcement practice concerning checks at roadside (2009/60/EC). The Commission has also co-financed the project called TRACE (Transport Regulators Align Control Enforcement), which developed a European harmonized training format for enforcers controlling the respect of the above mentioned rules. It also co-financed a complementary project called CLOSER (Combined Learning Objectives for Safer European Roads) of which the main final output delivered in the beginning of 2016 was a training guide for trainers in the field of road transport legislation and for enforcement bodies. However, despite these efforts and achievements, numerous difficulties and differences in application and enforcement of the provisions in force exist, as well as certain ambiguities or inconsistencies in the current provisions. For instance, the scope of the Regulation is differently understood, as some Member States consider that the Regulation applies only to professional drivers whilst other Member States apply the rules to the vehicle in scope, hence also to persons who drive them only occasionally. The ECJ ruling of Case C-317/12 of October 2013 gives guidance on this issue although it does not entirely solve the uncertainty revolving around the definition of the driver. The ECJ ruled that "the provisions of Regulation (EC) No 561/2006 apply essentially to professional drivers and not to individuals driving for private purposes". However, the interpretation of the ECJ ruling is not supported by all stakeholders. The UK for example, takes the interpretation that the wording of the Regulation is aimed at the type of vehicle being driven, and the type of journey being undertaken, rather than at the status (‘professional’ or ‘non-professional’) of the driver. As such, the scope of the Regulation still differs across Member States depending on their national interpretation – i.e. according to the relevant national authorities consulted for this study, the Regulation applies only to “professional drivers” in Austria and Hungary. Also the provision on the regular weekly rest is applied differently: 8 Member States consider that drivers may choose to spend their regular weekly rest in the vehicle, whereas 16 Member States regard the prohibition of taking the regular weekly rest in the vehicle difficult or impossible to enforce, and 2 Member States apply national measures imposing severe sanctions for spending the regular weekly rest in the vehicle.

The remuneration based on performance is allowed by the legislation provided that it does not create incentives to breach the provisions of the Regulation and does not put at risk road safety or health and safety of drivers. This type of pay exists particularly among drivers from the EU-13 Member States (e.g. Lithuania, Poland, Slovakia or Slovenia) where the variable proportion of the driver amounts to 57% on average compared to 21% in EU-15. According to 36% of drivers (13 drivers out of 36) interviewed in the framework of this evaluation, such payment scheme contributes to stress and sometimes also to non-compliance with the social rules. The assessment of whether or not such performance-based remuneration can be regarded as endangering road safety or encouraging infringements is based on national criteria. Nevertheless, 65% of enforcers (34 out of 52) who replied to the surveys during this evaluation, reported difficulties with enforcement of these payment provisions. The national risk rating systems were established in Member States in order to enhance effectiveness of their enforcement activities by targeting controls at the companies at a high risk level (non-compliant companies). However, this tool has not been used effectively and uniformly. 17 out of the 25 Member States (including Norway and Switzerland) which responded to the consultation, use a risk rating system, while 3 of the remaining 8 Member States admitted that they do not have an operational risk rating system. In addition, the exchange of information between Member States about the risk level of non-compliant operators was difficult, since different formulas were used by Member States to calculate the risk rating. The support study confirms a lack of harmonisation in terms of the implementation of the risk rating system and its penetration across all relevant enforcement authorities and the calculation methods used in the system itself. The mentioned guidance notes drafted by the Committee on Road Transport have not achieved to provide for full clarity and harmonisation of enforcement across the EU. Since they are not legally binding, their application in daily enforcement is not assured. The same applies to the common training curriculum for enforcers, developed under the mentioned TRACE project, which has been taken up and/or followed entirely or partially by 16 Member States , including Norway out of 25 countries (including Switzerland and Norway) who responded whilst others either did not follow it or were not aware of it. The social legislation has also been subject to some ruling of the Court of Justice, which had an important impact on the implementation of the relevant social provisions. The Court ruled on the following provisions: daily rest periods, temporary drivers, transport of animal carcasses or waste, specialised vehicles and door-to-door selling, special breakdown vehicles, penalties for infringements, obligations of employers, driving periods and breaks, period of work and end of working day, period of 24 hours and day, weekly rest, exception for carrying materials and equipment, definition of operating centre. Regardless of the efforts made to enhance consistency and effectiveness of enforcement of the common EU provisions and a slight improvement in compliance level observed, the number of infringements by drivers and road transport operators against the social provisions remain high: 3.3 million offences were detected in the reporting period 2013-2014. Almost half of them concerned breaches of the rules on breaks (23%) and rest periods (25%). These were followed by infringements against the driving time requirements (16%), incorrect driving time records (17%), the misuse of recording equipment (10%) and the lack of records for other work (8%). Whereas 3.3 million detected infringements were reported by Member States in the first two years of the implementation of the Regulation in 2007-2008 and enforcement Directive, 4.5 million infringements were reported to the Commission in 2009-2010 . This rise can be explained in the increase of checks required by the Directive as well as the introduction of the digital tachograph, which allowed for faster and more accurate and reliable data. The downwards trend in detected infringements levels can indeed be noticed since 2009, from 4.5 million in 2009-2010, 3.8 million in 2011-2012, to 3.3 million infringements detected in 2013-2014. However, no straightforward and definite conclusions can be drawn from these developments. On the one hand, the diminishing levels of detected infringements can indicate a better compliance with the rules in force thanks to well-established enforcement practices and greater awareness of social rules among drivers. On the other hand, these lower levels of infringements can also be the result of diminished infringement detection rates, superior manipulation techniques and decreasing enforcement capacities in Member States in terms of human and financial resources. This can be seen in the total average number of controls carried out in 2013-2014 in the EU, which decreased by 4.8% compared to 2011-2012 (drop from 158.6 to 151 million working days checked). Also the average rate of offences detected has declined throughout subsequent reporting periods: from 3.9 detected offences per working days checked in 2007-2008, 3.1 in 2009-2010, then 2.4 in 2011-2012 and 2.17 offences detected per 100 working days checked in the last reporting period of 2013-2014. There are vast disparities in offence detection rates at premises between Member States ranging from 0.02 to 14 offences detected per 100 working days checked. These discrepancies in detection rates confirm that the European Union is far from establishing a harmonised enforcement area because of diverging enforcement practices and resources for controlling compliance with road transport legislation. More details and statistics regarding the implementation of the social legislation in the years 2007-2014 can be found in the subsequent biennial implementation reports as well as the final report for the study on ex-post evaluation of social legislation in road transport, in particular in Annex C on "Analysis of trends in compliance" and Annex D on "Cost-effectiveness of social rules enforcement". 5.2Market context and developments The implementation of the social legislation and its effects cannot be assessed without taking into account the developments that occurred in the road transport sector and on the market in general over the years 2007-2014. The overarching economic and political trends brought about new challenges that this time- and price sensitive sector had to face. In particular cost pressures in the transport sector have led to an increased use of complex employment arrangements, including multiplication of operational basis, long sub-contracting chains extending across the borders or temporary contracts. These pressures also incite (false) self-employment in order to cut labour costs and non-complaint behaviour in the Member States with lower effectivity and severity of national enforcement and penalty systems. While in such new complex contractual settings the argument concerning the positive impact of the rules on health, safety and working conditions of drivers remains relevant, the enforcement of the rules becomes increasingly challenging. In addition, the study on ex-post evaluation of the road haulage legislation revealed that emerging illicit or dubious business practices that allow operators to gain unfairly competitive advantage often deprive drivers from their fundamental rights of social protection and adequate working conditions, including minimum rates of pay. These unfair business practices, which take the form of 'letterbox' companies and/or illicit cabotage operations, are based on circumventing the law and/or profiting from the deficiencies and ambiguities in the legal framework as well as an ineffectiveness of enforcement. In response to these developments some Member States (Germany, France, Austria, Italy) introduced in 2015, 2016 and 2017, in the context of implementation of the Posted Workers Directive(PWD), the national measures on the application of the national minimum wages to all foreign operators and drivers carrying out transport activities on their territories. The numerous and severe national administrative and control requirements imposed on foreign operators with relation to the application of their national minimum pay rates leading to great regulatory burdens for industry created heated discussions within industry and between Member States as regards the applicability and enforceability of PWD to international road transport. This lead to infringement procedures launched by the Commission against France and Germany for alleged disproportionate restriction of the freedom of providing cross-border road transport services and incited deeper reflections on the sector-specific criteria for application PWD to road transport sector. In the recognition of the legal uncertainties and practical difficulties of applying the current horizontal provisions on posting to road transport the Commission stipulated in its proposal of 8 March 2016 for targeted revision of PWD that: "Because of the highly mobile nature of work in international road transport, the implementation of the posting of workers directive raises particular legal questions and difficulties (especially where the link with the concerned Member State is insufficient). It would be most suited for these challenges to be addressed through sector-specific legislation together with other EU initiatives aimed at improving the functioning of the internal road transport market." Market size Freight transport sector The total volume of road freight transport in the EU-28 was around 1,725 billion t-km in 2014, some 10% less than during its peak in 2007, but showing a small increase compared to 2009 (1,700 billion t-km) (Eurostat, 2016b). This development has been shaped by the global financial and economic crisis, which has had severe impacts on the EU. In 2014, total road freight transport accounted for around 49% of freight moved in the EU-28 (Eurostat, 2016b) (77% excluding intra-EU sea and air transportation), a share which has remained largely unchanged over the past decade (Eurostat, 2016b). Around two thirds (64%) of road freight movements are within Member States and one third (36%) is between Member States (Eurostat, 2016b). Passenger transport There are considerable difficulties in obtaining statistics for the passenger transport sector because data are not harmonised across Member States and are therefore not comparable. Eurostat reports that bus and coach travel combined accounted for 549 billion passenger kilometres in 2007, falling to 526 billion in 2014. In 2014 it accounted for around 8.0 % of all passenger transport (and 9% of all land passenger transport), down from 8.5% in 2007 (Eurostat, 2016). The international market for coach and bus services is small compared to national markets. The data available does not allow an accurate estimate of the overall market size, the 2016 fact-finding study estimated that international coach passenger numbers grew by 40-60% and international coach passenger-kilometres grew by 0-40% between 2009 and 2014, which can be seen as the response of operators to opportunities provided by international liberalisation. At the end of 2014 there were a total of 35,659 carriers in the EU-28 possessing Community license, which allows an access for international market for coach and busses in the EU. This shows the increase by 3% compared with 34,582 licences in 2010 (data for EU-27). Market structure Freight transport sector The road freight market is broadly divided into two main segments. The first are small firms that account for the vast majority of the total number of hauliers - 90% of enterprises in the sector have fewer than 10 employees and account for close to 30% of turnover (including self-employed) (Eurostat, 2016b). These firms tend to compete mainly on price, with labour costs being a key determinant of competitiveness. At the time the legislation was adopted, 95% of road transport firms had fewer than 10 employees, reflecting a slight trend toward consolidation in recent years.

The second segment is made up of a limited number of large firms that provide complex logistics services. Firms in this segment compete on price, range and quality of the services offered (WTO, 2010). Since economies of scale are more important, there is also a higher degree of market concentration; around 1% of enterprises are enterprises with over 50 persons employed, these account for around 40% of sector turnover. Subcontracting plays a major role in road haulage. Even in 2007, it was recognised that a proportion of small companies tend to be economically dependent on larger operators who prefer to subcontract through exclusive or preferential contracts rather than to invest in additional vehicles. There has been a strong increase in subcontracting within the EU road haulage market compared to a decade ago. Overall, the European road haulage market can be characterised by a chain of hire and reward companies with large pan-European logistics companies at the top controlling the largest contracts but subcontracting much of that down the chain. Small enterprises and owner drivers either form small consortiums to obtain work, rely on subcontracting from larger firms or move loads identified through freight exchanges. Rapid expansion of larger operators offering integrated logistics services was identified at the period 2007-2014, along with intense corporate restructuring. Large multimodal third party logistics providers help to meet the demand for high quality, reliable and predictable door-to-door truck services. Cost pressures for logistics providers mean that many heavily rely on subcontracting less profitable operations to smaller enterprises and owner-operators, driving the number of links in the logistics chain upward. Passenger transport The enlargement of the EU increased the importance of scheduled coach travel, due to its advantages in terms of safety, flexibility and ability to respond to changing demand. Although there are a number of very large coach operators in the EU, the average size of companies are small, with an estimated average of 16 vehicles per company. The sector is highly fragmented in terms of the size and type of market operators and the range of transport operations. Services include scheduled long distance services, to school transport services, and shuttle services operated for tourists between airports and hotels. The importance of these different types of services also varies significantly between Member States. Many coach brands are a marketing alliance or partnership, managed by one operator and operated by several companies or by subcontractors. Many coach companies are domestic subsidiaries of foreign owning groups, and the ultimate ownership of individual coach operators may depend on mergers and acquisitions activity among a more limited number of parent companies. Cost structure Freight and passenger road transport sector Cost differentials between Member States are significant; in road haulage these costs can be almost double from one Member State to another. During the economic downturn, profit margins have contracted within the logistics sector as well as in the road haulage sector. As a result a price competition within road transport increased substantially. On the trunk lines of European corridors, reported freight rates have fallen even below pre-boom prices in the years up to 2006 to as low as €0.7 per vehicle-km or less. This corresponds to a reduction of some 30% compared to previous market prices of about €0.9 to €1.0 per vehicle-km, which barely covers the variable costs of haulage, let alone the full cost of vehicle utilisation. Cost levels are one of the key factors determining competitiveness in the road haulage sector. As shown in Figure 1, the most important cost components are the driver’s wages and fuel, followed by vehicle purchase costs. While in absolute terms, labour costs in the Member States that joined in 2004 and 2007 remain lower than in the EU-15, the gap is steadily narrowing. Notes: Driver costs indicate wages; maintenance includes general vehicle maintenance and tyre replacement Source: (Bayliss, 2012) Although there are some signs of labour cost convergence across Europe, there are still considerable differences between Member States. For example, the cost of a French driver is 2.4 times higher than a Polish driver spending two to three weeks per month outside their respective domestic markets. Even taking into account possible differences in terms of skills and productivity, the pay gaps are sufficiently high to conclude that there are still substantial differences in the labour costs. Also differences in social insurance contributions can be quite substantial. As an example, the estimated amount of the employers’ mandatory (net) social security contributions for a driver operating is €736 per month in France; €446-630 in Germany, €481-584 in Spain, as compared to €316 in Slovakia and €111 in Poland. The high competition in the industry means that transport undertakings are often price takers rather than price makers, which yields low profit margins. For this reason, hauliers are always looking at ways to improve margins by reducing operational cost. Efforts to improve productivity and competitiveness have been made in areas such as reducing empty running, outsourcing unprofitable work and sourcing cheaper fuel. Employment Freight transport sector In total, in 2013 there were 563,598 registered road freight transport enterprises in Europe, employing around 2.9 million people (Eurostat, 2016b).

For a number of years, the industry has been concerned about skill shortages and tight labour supply. A shortage of 74,500 professional drivers in Europe was estimated in 2008, which at the time was mitigated by the economic downturn. In 2013-2014, around 30% transport operators in Germany and the UK and 36% of transport operators in Belgium have difficulty in hiring drivers. The support study on the ex-post evaluation reveals that countries are still experiencing problems with driver shortages – including eastern European Member States - although precise quantification was rare. In 2015, the vast majority of heavy truck drivers are still employees (on average, 92%), with the remainder being self-employed (Broughton et al, 2015). While it is difficult to determine the current true extent of bogus self-employment, evidence from the literature indicates that it is particularly common in countries with strong neoliberal trends and weak trade unions, as well as becoming increasingly common in Eastern European countries (REMESO, 2013). Conversely, in France there is little self-employment. The strong domestic orientation and culture of working with employees rather than self-employed workers is thought to protect the sector from a strong growth of false self-employment. Nevertheless, incentives to use self-employment to cut labour costs have increased following the financial crisis, particularly due to the relatively higher wages of French drivers – leading to subcontracting of foreign firms with third country drivers or self-employed drivers. According to one French study “subcontracting to dependent [false] self-employed implies a level of compensation that cannot cover costs if the worker follows all road and labour regulations, thereby implicitly forcing the subcontractor to break the law“. Passenger transport Figures from Eurostat describing employment in road passenger transport also include all urban and suburban land transport modes (motor bus, tramway, streetcar, trolley bus, underground and elevated railways). The level of employment was almost 2.0 million in 2013 – a reduction from 2.1 million in 2007 (Eurostat, 2016b). According to the fact-finding study it has been estimated that employment in the domestic and international coach industry is slowly declining and by 2014 was around 0.55 million, with a margin of error of ±10%. This decline may conceal a mixture of growing volumes and increasing productivity. It suggests that the sector remained relatively stable in the face of recession. In a number of Member States, local bus/coach operators have taken advantage of the free movement of workers to employ drivers from other Member States. For example, it has been reported that UK bus operators have recruited drivers in Poland. This has led to a shortage of drivers in Poland, which has in turn prompted Polish operators to recruit drivers from Ukraine. The extent of such recruitment policies could not be identified. The same report informs that between 2004 and 2009, 7,010 heavy goods vehicle drivers from the 8 Member States registered in the UK, hereby exacerbating problems of driver shortages in their own countries. Outlook As in the EU economy as a whole, employment in the transport sector is facing challenges arising from demographic changes – in particular, the challenge of a growing shortage of skilled workers in an increasingly competitive global environment. Labour shortages are expected to become an increasing problem in the next 10 to 15 years as the economy and the transport sector return to growth and the number of people retiring from the sector increases. Projections of the demand for labour in the land transport sector also predict that the shortage will worsen in 2020 (due to a predicted additional demand of 200,000 to 500,000 jobs) compared to an approximate equilibrium in 2015. 5.3Social and market challenges in the sector A direct correlation between the market changes described above and the level of compliance with the social legislation as well as the cost-effectiveness of enforcement is difficult to establish. However, it was generally recognized during the open public consultation (details in Annex III) that the increasing fierce cost-based competition incited the emergence of business practices and sometimes very complex working arrangements that affected the proper application of the EU social legislation and rendered the cross-border enforcement more challenging. Fierce competition and cost pressures on operators had knock-on effects on the working conditions of drivers. New risk factors have emerged, such as: irregular work patterns including long periods away from home/base, time pressure, stress linked to the performance-based payment, inadequate resting facilities, persisting differentials in labour costs and social protection standards between the Member States inciting illicit business models and dubious employment schemes. Dubious employment practices concern mainly applying the terms and conditions of employment of the Members States with lower labour and social protection standards to drivers working habitually in/from the higher cost countries. The ex-post evaluation support study found that letterbox companies and illicit cabotage operations are the emerging business practices that are directly linked with illicit employment schemes used to reduce and avoid certain costs, such as labour costs, social contributions and taxes. Illicit employment practices in the sector pose a serious market challenge as confirmed in the open public consultation (details in Annex III). They are resulting not only from the shortcomings of the internal market rules as regards the access to the market and occupation but from difficulties of application of the horizontal Posting of Workers Directive 96/71/EC (PWD) to the road transport sector. Persisting uncertainties regarding applicable terms and conditions of employment to international road transport contracts, difficulties with establishing habitual place of work of international driver to determine genuine posting situation and inherent difficulties with controlling complex employment arrangements are the challenges faced by the industry and by Member States' enforcement authorities. Whilst the first group of shortcomings will be considered in the framework of the planned targeted revision of the relevant internal market road transport regulations, the issue of applicability of posting provisions entails the revision of the conditions under which the Posting of Workers Directive applies in the road transport sector and the efficacy of the related enforcement mechanisms. The unilateral national measures undertaken by some Member States (as mentioned in the previous section on market context and developments) on the application of their minimum wage laws to road transport do not ensure a balance between the freedom to provide cross border services and the social protection rights of workers and create a global risk of fragmentation of the EU internal road transport market. The issue of working patterns, including duration of periods away from the home-base or from the operational centre, is not regulated by the current legislation. However, it is linked with the provisions on the organisation of driving and working times. The study shows that long periods away from home have increased over the last decade due to the liberalisation and internationalisation of the transport market and contribute to driver's stress and fatigue. For instance, the Lithuanian trade union estimated that these periods have increased from around 5-10 days to 5-60 days in freight transport and to 5-90 days in passenger transport over the past ten years. This development combined with insufficient and/or inadequate rest and sanitary facilities contributes to the deterioration of working conditions of drivers and decreases the attractiveness of the profession. In addition, increased market competition in the road transport sector has led to downward pressure on profits and wages and aggravated the risk of non-compliance of the social rules by undertakings and drivers who are under higher pressure to remain competitive and to deliver goods on time. This further exacerbates the risks of an unlevelled playing field as well as the risks to road safety. For drivers of vehicles, delivering goods, there is pressure as they- may have to compensate the client for possible delays incurred. This encourages drivers to flout the rules in relation to rest times so that they can deliver on time and remain competitive. In the passenger transport sector, fatigue is considered a problem both for coach drivers (due to long driving distances on motorways) and bus drivers (given the amount of distractions and high level of concentration needed). Pressure often comes from the passengers who may not understand why their driver needs to take scheduled breaks and may require compensation. 6Answers to the evaluation questions 6.1Relevance Question 1: To what extent the main risks of the sector (freight and passenger) identified at the time of the adoption (i.e. a) unlevelled playing field for drivers and transport operators; b) deterioration in the driver's working conditions; c) deterioration in road safety) are still persisting? Do the key objectives of the legal framework adequately target them? The three main risks identified at the time of adoption of the legislation arise primarily from uneven precarious behaviours of operators and drivers and from ineffective enforcement, and hence they can only be addressed by uniform rules transcending national boundaries. Drivers have been increasingly subject to greater work demands, along with a loss of autonomy, which poses the risk of unhealthy stress levels and potentially a range of stress-related illnesses. The risk of deteriorating working conditions also negatively affects the image and attractiveness of the driving profession, leading to driver shortages and a risk of higher pressure on the drivers that remain. The results of the European Working Conditions survey (EWCS) (Eurofound, 2015) show that in 2010 37% of the professional road transport drivers consulted, stated that they typically work more than 48 hours per week. These findings are supported by the outcome of the national study for Germany (HS Furtwangen, 2012), which found that 56% (out of 1000 drivers) of the consulted drivers in 2011 reported weekly working times of more than 59 hours. These findings were validated by another German study (ZF Friedrichshafen, 2014) for which 2,196 professional German drivers were consulted in 2014. The results show that only drivers operating in the local transport segment (<50km) report weekly work hours below 48h. Drivers engaged in all other transport segments report average working times above 48h (90% of drivers consulted) ranging from 49 hours to 59 hours per week. The continued trends of above-average levels of long period away from home/base, atypical and irregular working hours, time pressure, stress related to performance-based pay reported by professional drivers in the course of the evaluation demonstrate that high levels of protection are needed to prevent further deterioration of their working conditions. All of this has clear implications for road safety – both of the drivers themselves and other road users (due to the higher mass of HGVs and buses/coaches, accidents tend to be more serious and most of those killed are other road users).

These developments demonstrate the persistence and developments of the risks identified at the adoption time. Hence, the main objectives of the legal framework are still fully relevant to directly addressing risk factors of unlevelled playing field, inadequate working conditions of drivers and suboptimal road safety for all road users. However, as working conditions are influenced also by other factors (mentioned above) going beyond the current EU rules in force, the legislation, though relevant, is not sufficient in addressing all relevant risk factors. Question 2: Is the current scope of application of the legislative framework still relevant in the context of the recent road transport market developments, including modern complex employment arrangements? If not, why? It is concluded that the scope of the legislation is still relevant today. This applies to the scope in terms of the type of vehicles covered, the types of drivers covered, and considering the system of derogations and exemptions. Including self-employed drivers into the scope of the social legislation appears to be still relevant today as the needs of such drivers, in terms of health, safety and working conditions are the same as for employed drivers. However, cost pressures combined with the low probability of detecting non-compliance puts them at a higher risk of infringing the rules. The fact that self-employed drivers are covered by the driving, working time and resting time rules reduces the risk of false' self-employment practices which aim to gain unfair competitive advantage over compliant undertakings. The same argument applies to drivers subject to complex employment arrangements (such as temporary contracts and/or (cross-border) subcontracting chains), whose activities however are difficult to retrace for enforcement authorities. Also here, the risk of infringing the rules is comparatively higher with adverse effects on their health, safety and working conditions. As this type of employment arrangements has intensified compared to when the rules were adopted, there is even a greater need today to cover the concerned drivers by the social legislation. Concerning the needs of the sector, the analysis shows that these have not substantially changed; however the underlying issues that make compliance with prescriptive driving and working time rules more difficult have become more pervasive. This particularly concerns the external factors going beyond the current rules such as congestion and accessibility to resting facilities, as well as growing pressure from clients. The mechanisms built into the rules that aimed to alleviate these issues (respectively flexibilities and co-liability) are not sufficient to address all the circumstances and in addition they are not uniformly enforced. Therefore, the industry representatives have argued that, whilst the rules are still relevant, certain flexibility in their application should be provided in order to address the specific needs or circumstances of individual transport operations. Around 70% of the freight transport operators considered that a lack of flexibility in the rules is a major cause of difficulties in compliance with Regulation (EC) No 561/2006, and 55% regard the lack of flexibility as main cause for non-compliance with Directive 2002/15. This view seems to be supported by the drivers interviewed: out of the 22 responding drivers engaged in the freight transport sector, 15 (or almost 70%) stated that inflexibility in the rules (e.g. to account for specific traffic conditions) was a cause of non-compliance. For instance, international drivers engaged in long international transport journeys, due to unforeseen waiting time or traffic obstacles, cannot reach their destination or home/base for the weekly rest. Even if they do not reach their daily driving time limit they must stop in order to start the weekly rest period and spend it sometimes not far away from their final destination or home. The flexibility in deciding when to start the weekly rest while preserving the daily driving time limits would help to address this obstacle which incites the non-compliant behaviour. For drivers engaged in short-distance local deliveries where driving periods are frequently interrupted by short breaks it is difficult to comply with 45 minute break and in the same time fulfil the daily delivery multi-stop schedule. For the passenger transport sector specifically, there are distinct service needs related to the demands of passengers, their personal needs during the journey, their visit plan, that are not seen in freight transport. For drivers engaged in the international carriage of passengers the lacking flexibility brings about additional stress related to discontent of passengers when they cannot reach their destination and have to stay at the roadside to let a driver comply with the driving and resting rules. Industry representatives consulted during the ex-post evaluation study argue that the lack of flexibility in the current road social legislation makes it more difficult to comply and have advocated for a more specific consideration of the passenger transport sector. The majority of respondents to the stakeholders' consultation carried out within the study regard that rules do not fit the specificities of passenger transport services, which contributes to non-compliance. Namely: 75% (out of 294 respondents) for Regulation (EC) No 561/2006 and 65% (out of 199) for Directive 2002/15/EC). This issue is therefore ranked at a similar level of importance to the lack of flexibility, and again the issues are again ranked more severely for the Regulation as compared to the Directive. With regards to freight transport vehicles, extending the social legislation to cover vans (below 3,5 tons) would not address the most important safety risks pertinent to these vehicle types. Considering that Member States have implemented their own national drivers’ hours restrictions for LGVs (Light Goods Vehicles), which are typically based on the limits established in the road social legislation, the relevance of explicitly extending the rules to vans as a means to reduce fatigue seems limited. The anecdotal evidence shows that the main root cause of the fatigue of van drivers seems more clearly linked with the demands of the job such as the pressures of keeping to schedules, increasing traffic, and a higher proportion of drivers’ working time taken up by non-driving activities. 6.2Effectiveness Question 3: To what extent has the clarification of the provisions on driving times, rest periods and organisation of working time of drivers helped to improve the legal certainty of the rules and their uniform application? Has the compliance increased as a result of these clarifications? The clarity of provisions, being a subjective concept, is assessed based on the following indirect indicators that, if they exist for a certain provision, suggest a lack of certainty: a)efforts to clarify the same or newly introduced provisions; b)number and content of petitions, court cases or complaints due to unclear provisions; c)remaining uncertainties indicated by stakeholders during consultation activities. Regulation (EC) No 561/2006 introduced a total of 23 amendments or additions to the legal definitions compared to Regulation (EEC) No 3820/85. These changes aimed to clarify the scope of the legislation regarding the types of vehicles and operations covered, and to more precisely define the terms used in relation to rest periods, breaks and driving times. The 17 of the total 23 (74%) amendments/additions to the legal definitions are regarded successful in bringing more clarity to the rules, as no relevant uncertainties were identified according to the indicators described above. The 6 remaining definitions that turned out to be unclear and resulted in non-uniform application concern: 'carriage by road', 'break', 'driver', 'daily driving time' and the interaction between the definition of 'other work' provided in Regulation (EC) No 561/2006 and the definition of 'periods of availability' provided in Directive 2002/15/EC. Table 3 – Summary of legal definitions and other provisions that caused uncertainties and lead to non-uniform application Legal definition Identified uncertainties following adoption of Reg (EC) No 561/2006 Further clarification efforts undertaken Outcomes of further efforts / current status regarding uncertainties ‘Break’ in the context of ‘Multi-manning’ Uncertainty whether the second driver may take a ‘break’ in the moving vehicle Guidance Note 2 Lack of uniform application remains ‘Driver’ Uncertainty as to whether only professional drivers are within the scope of the Regulation ECJ ruling (Case C-317/12); Clarification Note 2 Lack of uniform application remains ‘Daily driving time’ Uncertainty regarding when a new daily driving period commences after a non-compliant rest Commission Decision C(2011) 3759; Guidance Note 7 (of 6/2015) No success - Decision did not resolve issue; Impact of Guidance Note 7 on clarifying the issue has not yet been assessed ‘Carriage by road’ Uncertainty whether definition should be linked to ‘vehicles’ or ‘drivers’ in case of mixed activities No specific clarification efforts undertaken Uncertainty remains Place of regular weekly rest Uncertainty as to whether regular weekly rest is permitted in the vehicle Response to parliamentary questions; EU-Pilots (3 pre-infringement cases) in response to complaints Pertaining differing interpretations, lack of uniform application Suitable stopping place Unclear conditions under which deviation to the rules is acceptable and what constitutes a suitable stopping place Guidance Note 1 Uncertainty remains, lack of uniform application Records for other work and availability Further uncertainty on the means and the time period for which the records on other work, availability and rest times must be made when a driver was away from the vehicle or was engaged in mixed: in-scope and out-of-scope activities Clarification notes: 5 and 7 Lack of uniform application Payment regimes Uncertainty as to what is, and how to prove, an unacceptable payment based on performance No specific clarification efforts undertaken Non-uniform application

Among all the above described legal uncertainties resulting from the lacking clarity of the provisions and their diverging interpretations and enforcement, the provision on the place of taking regular weekly rest merits in-depth explanations, because the lacking clarity has led to adopting national specific measures in France and in Belgium. These measures, based on national interpretations of the current EU (unclear) provision, envisage imposing severe sanctions for taking regular weekly rest in the vehicle, which cannot be entirely warranted by the current EU provision in force. Article 8 provides the provisions on rest periods. A recurring point of contention regards Article 8 (8) which states that daily rest and reduced weekly rest may be taken in a vehicle “as long as it has suitable sleeping facilities for each driver and the vehicle is stationary”. While the revised provision makes clear that daily and reduced weekly rest periods can be taken in the vehicle under specific circumstances, the location of where regular weekly rest can be taken is not further defined. The national authorities thoroughly discussed this issue at the meetings of the Committee on Road Transport and the CORTE enforcement meeting held in March 2015 revealing two main positions: 1)Regular weekly rests should not be allowed in the vehicles, considering that “rest” is defined as a period during which the driver may “freely dispose of his time”. Given that many drivers are frequently asked to secure their vehicles and cargo during the rest periods that they spend in their vehicles, drivers hence cannot freely dispose of their time and such periods should not count as rest. 2)Regular weekly rests may be allowed in the vehicle (should the driver choose so), considering that prohibiting this on the grounds that the driver cannot freely dispose of his time would also imply that he could not spend daily and reduced weekly rests in the vehicle either (which would contravene the requirements of the Regulation). Some Member States (Belgium, France and Netherlands) more specifically interpret the relevant provision as having the aim to improve the working conditions of drivers by suggesting that regular weekly rest should be taken at home, although this is not explicitly stated in the Regulation. Other Member States and enforcement organisations emphasised that there are uncertain consequences of not permitting the driver to stay in the vehicle, given that alternative accommodation is either not available or of insufficient quality. This is indeed a concern, although the availability of parking and service areas that enables drivers to comply with their obligations under the EU legislation is the responsibility of the competent authorities in each Member State. In the course of the consultation activities, trade unions supported fully the first position described above. The lack of uniform application persists, with France and Belgium prohibiting drivers from spending regular weekly rest in vehicles and sanctioning severely for doing so, and with other Member States, such as Bulgaria, Lithuania and Luxembourg, who do not regard spending a regular weekly rest in the vehicle as prohibited. As regards the working time provisions set out in Directive 2002/15/EC, for 8 of the total 9 legal definitions, no relevant uncertainties were raised. Therefore it can be concluded that these definitions achieved their aim of providing clear rules specifically for the transport sector. For example, the definitions of ‘other work’ and ‘periods of availability’ are considered clear by, respectively, 9 and 10 respondents out of 13 ministries. The only uncovered uncertainty concerns the 'periods of availability'. Enforcers from the Netherlands and Ireland, however, highlighted the difficulty of proving and verifying whether 'period of availability' have been known in advance. As a result, these representatives claimed that the provision is unenforceable, which is a different issue. In case of the provisions of enforcement Directive 2006/22/EC only the issue of using an attestation form to certify for driver's activity and inactivity periods when away from the vehicle was a subject to diverging implementation practices. Despite the Guidance Note 5 clarifying the use of the attestation form the differences in enforcement across the Member States persisted. The lack of uniform application stems from the fact that the use of the attestation form is not mandatory. This lack of harmonisation has been further compounded by Article 34 of Regulation (EC) No 165/2014, which states that “Member States shall not impose on drivers a requirement to present forms attesting to their activities while away from the vehicle.” This caused further uncertainties on how to record and control activities of a driver when a driver was away from a vehicle. In Austria the form was still required if retrospective entries for such activities on the tachograph were not possible. In other Member States, such as Finland and Latvia, the use of the form is allowed (but also other proof can be provided), while still other Member States, such as France and Greece disregard such forms (and other proof for such activities is required). Hence, the attempts made to harmonise the use of the attestation forms across the Union have been unsuccessful. Prevailing different approaches to the use of these forms cause uncertainties among drivers and undertakings, especially when engaged in international transport operations. Given the lack of disaggregate data on the detected infringements (i.e. there is no information on whether specific infringements were due to uncertainty or a lack of harmonisation) it is difficult to assess the impact of clarification on compliance levels. Qualitatively, answers from the stakeholder questionnaires show different views: while enforcers and trade unions do not consider a lack of clarity to be a big factor contributing to non-compliance, drivers and undertakings regard it more relevant for a capability to comply. The Figure 2 shows that enforcers and trade unions do not regard the clarity of the rules as a potential cause of non-compliance. The responses from undertakings were more mixed, with slightly more rating a lack of clarity as a (major or minor) cause of non-compliance versus those who rated it as not a cause. Source: Interviews with drivers conducted in course of the evaluation support study The above Figure 3 shows that drivers and undertakings, consider a lack of clarity in the rules as a more important contributing factor to non-compliance than other stakeholders. This might reflect that they are more aware of (and affected by) the practical difficulties of correctly interpreting and applying the rules. Question 4: To what extent has the package of enforcement measures (including provisions on cooperation) contributed to improving the application of the social rules in road transport in a uniform manner throughout the EU and to increasing compliance with these rules? How do results compare for provisions under Driving Time Regulation and Road Transport Working Time Directive? A range of enforcement measures were introduced to ensure harmonised application, more effective enforcement and subsequently better compliance with the driving time rules across Member States. These included: minimum thresholds for the number and distribution of checks; common classification of the infringements; risk rating systems; co-liability for infringements; body for intercommunity liaison, obligation to exchange data and experience between Member States, requirement to carry out concerted checks and joint training programmes for enforcers.

The enforcement Directive 2006/22/EC has had positive impacts in terms of reaching thresholds for number of controls and moving toward more checks at the premises, which contributes to a more uniform application of the rules across the EU. In 17 Member States the percentage of working days checked showed an increase between 2005-2006 (before the Directive was adopted) and 2007-2008. By 2011-2012, the percentage of working days checked had increased in all but one Member State (Poland). The actual number of checks still varies substantially (with some Member States reporting shares that are 3 to 5 times higher than the minimum requirements); however, the purpose of the Directive is to harmonise the minimum standards rather than prescribing a precise number. In this sense, the Directive can be considered to have been largely successful in ensuring common minimum standards: in 2011-2012, all Member States except Denmark, Greece, Italy, Latvia and the Netherland reached the minimum target of 3% and in 2013-2014 the list of countries that have not reached the 3% threshold diminished to four Member States, namely: Greece, Netherlands, Croatia and Lithuania. Concerning the risk rating systems and penalty systems, there is considerable divergence in the application of the rules (due to the flexibility allowed to Member States in defining national provisions). Only 8 Member States use the formula for calculation of risk rating of the transport undertaking based on or similar to the Commission recommended formula established in 2007. All others established own methods to calculate risk rating. As a result the same type and number of infringements may lead an undertaking to be classified in one Member States as a high risk company which leads to more frequent checks, while the undertaking can be regarded as low risk in another Member State. Hence, undertakings established in a Member States with more stringent rules are disadvantaged to those who are established in a Member States with a more relaxed calculation method. The same applies for the definition of the level of fines and the type of sanctions, which vary significantly across Europe. As a result the same infringement is fined differently in different Member States, with variations from 60 Euro fine to 5000 Euro or even immobilisation of the vehicle. One of the steps taken to (indirectly) improve the harmonisation of sanctions was the adoption of the Commission Directive 2009/5/EC on the common classification of the level of seriousness of infringements. The Directive classifies infringements against the provisions of the Driving Time Regulation into three categories according to their degree of seriousness and specifies reference thresholds for infringements relating to quantitative variables. However, since the level of sanctions is a competence of Member States, no indicative value in terms of sanctions to be imposed has been assigned to each of these categories. Furthermore, out of the 21 Member States that reported on their penalties systems, only the Netherlands and Romania notified that they aligned their categories of penalties with the above-mentioned categorisation of infringements. These examples show that developments in infringement rates can be influenced by a variety of factors, and it is not possible to develop general conclusions for the EU. Overall, the developments toward a best practice in enforcement can result in either improvement in compliance and/or higher detection rates. Examples of what “best practice” specifically means include: higher quality training of enforcers and better risk-targeting. The principle of co-liability has not contributed to the specific objective of uniform enforcement due to the variation in implementation by Member States (allowed by the legislation) leads to situations where the same facts could make different parties being held liable depending on the Member State. Difficulties in enforcement are typically due to the challenges of identifying who is really responsible for any infringements detected, especially in cases of extensive subcontracting chains. In effect, it is typically a driver who is penalised. Therefore, the direct impact of the principle of co-liability on improving compliance is minimal as there is not a real risk to the third parties of actually being held liable in practice. Hence the situation in this regard has not improved compared to the time before the application of the rule. The Enforcement Directive increased the requirements for concerted checks as from 2007 to six per year, compared to two checks per year under the previous rule. Comments received via the survey and interviews indicated that concerted checks contribute to improving enforcement capacity (in terms of knowledge and best practices) and consistency of enforcement practices over a longer period of time through the exchange of experience between enforcement officers and establishing common approach to enforcement. The administrative cooperative measures have not, however, been sufficient to overcome the diversity of national applications. This is largely due to the non-binding nature of the instruments, where alignment, through information and best practice exchange and/or common training is encouraged but not required The analysis shows that enforcement measures are only partially effective in addressing the risk of non-compliance. While the enforcement measures mitigate the risk of non-compliance, the risks of being detected and its consequences do not outweigh the potential advantages (in terms of carrying out more transport services due to longer driving and working hours, shorter rest periods) of infringing the rules for all undertakings and/or drivers. The extent to which this applies varies across Member States and depends on their specific enforcement systems in place, as well as the type of transport operation being carried out and therefore cannot be realistically quantified. In contrast to the Driving Time Regulation, there is no explicit legal requirement for Member States to carry out regular controls on compliance with the working time provisions and subsequently to collect and submit quantitative information on the enforcement. Therefore, no quantitative data is available to assess the harmonisation of its application across the EU or the effects on compliance/ levels. A qualitative assessment suggests that the enforcement practices for the Working Time Directive vary significantly across Member States and that the level of compliance is rather low. This further implies that enforcement in general is not effective, which in turn is due to the low priority given to enforcement of the Directive. Question 5: Do the monitoring and reporting arrangements in place allow for adequate checking and follow-up of the legislation? The legislation requires Member States to submit biennial report