Opinion of the Commission pursuant to Article 251 (2) (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a directive of the European Parliament and of the Council concerning the organisation of working time for mobile workers performing road transport activities amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty

1. BACKGROUND

(1) On 25 November 1998 the Commission presented to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions a communication concerning the organisation of working time in the sectors and activities excluded from Directive 93/104/EC of 23 November 1993 [1], (COM(1998)662 final - 1998/0319 (COD)) [2]. The communication was accompanied by a number of related proposals, one of which concerned a specific directive for the road transport sector.

[1] Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ L 307, 13.12.1993, p. 18). Last amended by Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000 amending Directive 93/104/EC to cover sectors and activities excluded from that Directive (OJ L 195, 1.8.2000, p. 41).

[2] OJ C 43, 17.2.1999, p. 4.

(2) On 14 April 1999 Parliament delivered its opinion at first reading [3] on the Commission's proposal and confirmed this opinion in its resolution of 6 May 1999 following a change in procedure [4] .

[3] OJ C 219, 30.7.1999, p. 235.

[4] Doc. 7927/99 ADD 1 PE-RE-38.

(3) On 21 June 2000 the Commission published a communication to the European Parliament and the Council entitled Towards a safer and more competitive high-quality road transport system in the Community (COM(2000)364 final). In it the Commission indicated the state of progress in the Council debate on this issue, noting that the Council discussions were deadlocked because of sharp differences between Member States on the issue of the inclusion of self-employed drivers in the scope of the directive. The Commission indicated that, to move the debate forward, it could accept the temporary exclusion of self-employed drivers from the proposed directive.

(4) On 27 November 2000 the Commission presented an amended proposal for a directive [5] which temporarily excludes self-employed drivers.

[5] Amended proposal for a Directive of the European Parliament and of the Council concerning the organisation of working time for mobile workers performing road transport activities and for self-employed drivers COM(2000)754 final.

(5) On 21 December 2000 the Council agreed the principle of a draft common position, by qualified majority, in conformity with Article 251 of the Treaty.

(6) On 14 June 2001, the European Parliament adopted, in second reading, twenty amendments to the common position of the Council.

(7) In this opinion, the Commission sets out its view of the amendments adopted by the European Parliament, in accordance with the third indent of Article 251(2) c) of the EC Treaty.

2. PURPOSE OF COMMISSION PROPOSAL

The purpose of the Commission proposal is to improve road safety and establish common regulations on working time for mobile workers performing road transport activities.

The proposal is intended, moreover, to prevent distortion of competition and to safeguard the health and safety of mobile workers and self-employed drivers by instituting minimum daily and weekly rest periods and also appropriate breaks.

3. THE COMMISSION'S OPINION ON THE AMENDMENTS OF THE EUROPEAN PARLIAMENT

Of the 20 amendments adopted by the European Parliament in second reading [6] the Commission can approve amendments 9, 16, 18 et 21 and can agree in principle to amendments 10, 20 and 22.

[6] Amendments 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22.

However, having endorsed the Council's common position, the Commission feels it would be inconsistent to accept either amendments 1, 2, 4 and 13, which alter the common position significantly by proposing that the scope of the directive be extended automatically to self-employed drivers, contrary to the common position, or amendments 6, 11, 12 and 14, dealing with concepts of working time and night work which are not compatible with the common position of the Council.

The Commission cannot accept amendment 15 on the ground that the measure cannot be applied because not all Member States have collective agreements.

The Commission cannot accept amendment 17 advocating that Member States should carry out controls on working and driving times equivalent to at least 2% of all the working days in this sector since this would contravene Directive 88/559/EEC.

The Commission can only therefore accept amendments 9, 16, 18 and 21, and agree in principle to amendments 10, 20 and 22.

3.1 Amendment 9

The Commission considers that Amendment 9 is a useful if not strictly necessary clarification. It amends the definition of the location of the undertaking (Article 3(c)) to include not only the head office but also branch departments or offices of the undertaking located elsewhere.

3.2 Amendment 10

Amendment 10 further clarifies the definition of 'self-employed driver', adding the requirement of having commercial relations with several customers in order to avoid a category of 'pseudo self-employed'. The Commission believes that any clarification of this definition is useful and therefore approves the aim of the amendment but considers that the wording of the proposed clarification should be amended to prevent problems in applying it. One possible formulation could be the following: "Self-employed driver" shall mean anyone whose main occupation is to carry passengers or goods by road, is owner of a community professional certificate and, among others, has the freedom to choose which freight he will carry and has the freedom to negotiate and fix with its customers the price and the conditions of this services.

The second paragraph of this amendment remain unchanged.

3.3 Amendment 16

The purpose of this amendment is to extend the time for the preservation of records of the working time of mobile workers to two years after the end of the period covered. The Commission, which had already proposed this period in the amended proposal for a directive, feels that extending this period should make it easier to monitor and hence ensure the proper implementation of the directive's provisions.

3.4 Amendments 18 and 21

In the opinion of the Commission, amendments 18 and 21 increase the social protection of mobile workers: amendment 18 introduces a non-regression clause and amendment 21 deletes the ambiguous text of the common position which was open to misinterpretation.

3.5 Amendment 20

Amendment 20 proposes that the transposition period for this directive should be two years. The Commission notes that the amendment reintroduces the time limit proposed in the amended proposal for a directive, a shorter period which does not substantially affect the common position.

3.6 Amendment 22

Amendment 22 seeks to put in place all possible mechanisms and instruments in contractual relations of the transport chain to ensure the adequate implementation of the directive. The Commission feels it can agree to this in principle, but considers that the wording needs to be amended. A new formulation could be: "Member States shall take the necessary measures to ensure that the provisions of this directive are mandatory imposed to the parties of the contract which should regulate the relationships between shippers, freight forwarders, prime contractors and sub-contractors".

4. CONCLUSION

Therefore, pursuant to Article 250(2) of the Treaty, the Commission amends its proposal accordingly.