COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a European Parliament and Council Regulation amending Council Regulations (EEC) No 881/92 and (EEC) No 3118/93 for the purposes of establishing a driver attestation

1. Background

(1) On 23 November 2000, the Commission submitted to the Council a proposal for a European Parliament and Council Regulation amending Council Regulation (EEC) No 881/92 [1] on access to the market in the carriage of goods by road within the Community to and from the territories of the Member State or passing across the territory of one or more Member States as regards a uniform driver attestation (COM(2000) 751 final) [2].

[1] OJ L 95, 09.04.1992, p. 1.

[2] OJ C 96 E, 27.03.2001, p. 207.

(2) On 25 April 2001, the Economic and Social Committee delivered a favourable opinion [3].

[3] OJ C 193, 10.07.2001, p. 28.

(3) On 16 May 2001 the European Parliament delivered its opinion [4] on the Commission's proposal and adopted seven amendments. The Commission decided to accept one of them in full (amendment 7 making the identification of the driver more accurate) and one in part (amendment 6 which limits the scope of the Regulation to nationals of third countries for the first two years of its application, and subsequently extends it to all drivers carrying out intra-Community road transport).

[4] OJ C ...

(4) On 5 July 2001 the Commission sent to Council and Parliament an amended proposal for a Regulation (COM (2001) 373 final) [5].

[5] OJ C 270 E, 25.09.2001, p. 231.

(5) On 23 October 2001 the Council formally adopted the common position which is the subject of this communication.

2. Purpose of the Commission's proposal

The proposal amends Regulation (EEC) No 881/92 in order to introduce a uniform document attesting that the driver of a vehicle engaged in the international carriage of goods is entitled to drive that vehicle on behalf of the haulier. This uniform document, namely the driver attestation, is intended to enable inspecting officers in all Member States to check effectively the employment status of drivers of Community-based vehicles carrying out international transport operations under a Community licence. The driver attestation will be issued only to drivers who are lawfully employed or lawfully placed at the disposal of a Community haulier. Consequently, this attestation will make it possible to effectively combat the unlawful employment of drivers.

3. Comments on the common position

3.1. Main point

The only significant difference of opinion between the institutions concerns the scope of the Regulation. To reduce the administrative burden involved in introducing the attestation, the Council wishes to limit it to drivers who are nationals of third countries, while the European Parliament considers that the Regulation should apply to third-country drivers immediately after it enters into force and that it should apply to EU drivers two years later. The Commission followed the European Parliament on this point except for the implementation date for the Regulation. The Commission considered that the Regulation should become applicable for third-country drivers six months after it comes into force, and for all drivers no matter what their nationality thirty months after its entry into force. The Council finally advocated one year after the date of entry into force of the Regulation and solely for third-country drivers.

The Council has adopted a common position by unanimity, whereby it will be decided later whether or not to extend the scope of the Regulation (to all drivers) on the basis of a Commission assessment. However, given that including all drivers within the scope of the Regulation is merely a possibility and not a certainty, at this stage in the procedure the Commission's position in its amended proposal and Parliament's position as expressed on first reading should be confirmed and therefore the point concerning the scope of application within the common position rejected.

3.2. Amendments adopted by Parliament on first reading

Of the seven amendments proposed by Parliament, the Commission accepted two, one of which in its entirety, namely amendment 7 which adds the driving licence and social security numbers to the personal information relating to the driver. The amendment was also accepted by the Council. Amendment 6, which limits the scope of the Regulation to nationals of third countries initially and extends it to all drivers after two years, was only accepted by the Commission in its amended proposal.

3.3. Other points to be taken into consideration

(1) According to the common position, it will be necessary not only to amend Regulation (EEC) No 881/92 but also Regulation (EEC) No 3118/93 [6] laying down the conditions under which non-resident carriers may operate national road haulage services within a Member State. The purpose of this addition is to specify, beyond dispute, that third-country drivers must also hold a driver attestation in order to carry out cabotage operations. This seems useful in order to avoid any confusion.

[6] OJ L 279, 12.11.1993, p. 1.

(2) Some technical modifications have been made in the text of the common position compared with the text of the Commission's proposal and Parliament's opinion. They relate to references to collective agreements, rules concerning the vocational training of drivers and the number and regularity of inspections to be carried out by the Member States. These technical modifications do not call for any comments.

(3) The question of the violation of the principle of equality of treatment in working conditions provided for in Community law and in agreements concluded with third-countries has been raised in connection with limiting the scope of the Regulation to third-country nationals. The Commission considers that the obligation to carry a document (work permit, employment contract) does not fall within the definition of working conditions but aims to prove whether the individual has been legally employed, in terms of the relevant laws, and under the agreements with third countries, it is working, remuneration and dismissal conditions which must not be the subject of any discrimination based on nationality.

4. Conclusion

The text of the Council's common position seems to be balanced except as regards the following points:

* Community drivers should ultimately be included within the scope of the Regulation;

* The Regulation should be applicable six months (and not twelve months) after its entry into force for third-country drivers and thirty months after its entry into force for all drivers, whatever their nationality.