EN Official Journal of the European Union C 204/31

Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council on common rules for access to the international road haulage market (recast)

COM(2007) 265 final/3 — 2007/0099 (COD)

(2008/C 204/09)

On 16 July 2007, the Council decided to consult the European Economic and Social Committee, under Article 71 of the Treaty establishing the European Community, on the

Proposal for a Regulation of the European Parliament and of the Council on common rules for access to the international road haulage market (recast)

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 19 February 2008. The rapporteur was Mr Chagas.

At its 443rd plenary session, held on 12 — 13 March 2008 (meeting of 12 March), the European Economic and Social Committee adopted the following opinion by 65 votes to 21 with 6 abstentions.

1. Conclusions and recommendations

1.1 The EESC notes with interest the proposal for a regulation on access to the international road haulage market. The decision taken by the Commission in this proposal to opt for a form of harmonising the regulation's implementation that entails a clear and easily enforceable definition of cabotage and largely improved rules on compliance and enforcement would meet the demands of the majority of stakeholders in the sector.

1.2 The Committee considers, however, that the social aspect of access to the international road haulage market warrants closer attention. Cabotage, like cross-trade (1) (carriage to and from third countries), can entail unfair competition and social dumping in the sector, as a result of the wage gap between drivers from the old and new Member States.

1.3 In the EESC's opinion, requiring cabotage operations to take place within seven days could make it easier to monitor. Such operations can only be allowed where they follow an international journey.

1.4 Monitoring cabotage should form part of a national strategy for monitoring the implementation of road haulage legislation and should be coordinated by the Commission. The Committee would not want to see a plethora of European-level committees and calls for a single committee made up of representatives of the Member States, with the social partners being given observer status.

1.5 For the longer term the Committee would encourage the Commission to undertake further analysis with a view to better achieving the internal market coupled with further harmonisation of quality standards, worker protection and the fiscal and social framework, including the reduction of the pay gap.

2. Introduction

2.1 The proposal for a regulation currently under consideration, on access to the international road haulage market, addresses matters that form part of the pillars of the internal market in road transport.

2.2 More specifically, these pillars consist of a legal framework laying down European rules, known as common applicable rules, which must be complied with in the international carriage of goods and passengers by road within EU territory (in other words the carriage of goods to or from the territory of a Member State or passing across the territory of one or more Member States).

2.3 This framework: — sets minimum quality standards which must be met in order to enter the profession; — liberalises international road haulage and occasional passenger services; and — establishes regulated competition between regular passenger services and for cabotage haulage operations by non-resident hauliers.

2.4 Because the aim of establishing this legal framework was to achieve the smooth operation of the internal transport market, account was not always taken of its social impact, in other words the impact on the employment and working conditions of professional coach or lorry drivers (both male and female). At the time, (the first directive dates back to 1962), the social dimension of the internal road haulage market and sustainable transport were not policy considerations in this sphere.

3. Commission proposal

3.1 The Commission proposal identifies five policy options ranging from a 'no change' option to a 'liberalisation' option that would place virtually no quantitative restrictions on cabotage. The Committee considers that standards vary too greatly within Europe at present for full liberalisation to be possible without eroding standards and quality of service and long-established norms for the protection of health, safety and working conditions in the industry. It is therefore proposing at present a more limited middle option, the 'harmonisation' option, which would include a clear and enforceable definition of the circumstances in which cabotage operations should be permitted, along with improved procedures for securing compliance and enforcement and standardising and simplifying the paperwork involved.

3.2 This proposal forms part of a legislative package that includes three proposals for regulations aimed at updating, simplifying and condensing the rules on access to the international road passenger and goods transport profession and market and also includes a report on the application to self-employed drivers of the directive on working time. It makes sense, therefore, to ensure that the proposal fits neatly into this package.

3.3 With this in mind, the Commission's rationale for this proposal for a regulation is the need to enhance the clarity, readability and enforceability of the current rules. Certain measures forming part of this legislative framework are unequally applied and enforced because of unclear or incomplete legal provisions.

3.4 More specifically, the implementation and/or enforcement of the following aspects are a cause for concern: — the scope of the Regulation on transports by Community hauliers to and from third countries; — the difficulties in implementing the concept of temporary cabotage; despite an interpretative communication published in 2005 on the basis of the Court of Justice definition of ‘temporary’ in connection with the freedom to provide services, difficulties have remained and Member States tend to implement rules which are divergent, difficult to enforce or which impose an additional administrative burden; — the ineffectiveness of the exchange of information between Member States; as a result, undertakings which operate on the territory of a Member State other than their Member State of establishment hardly risk any administrative sanctions, as a result of which the competition might be distorted between these undertakings less inclined to comply with rules and the others; — the heterogeneity of the various documents (Community licence, certified copies and driver attestation), which creates problems during roadside checks and often leads to considerable time losses for operators.

3.5 The proposal aims at revising and consolidating Regulations (EEC) No 881/92, (EEC) No 3118/93 and Directive 2006/94/EC. This is not merely a recast, however, because the proposal contains new aspects, for example, on cabotage. It is based on Article 71 of the Treaty, which refers to common rules applicable to international transport and to the conditions for allowing non-resident hauliers access to national transport in a Member State (2).

3.6 The Commission considers that its proposal reflects the need to ensure the smooth operation of the internal market, helps to attain the objectives of the Lisbon strategy by improving road safety, contributes to the process of ‘better lawmaking’ and improves compliance with rules on social protection.

3.7 The proposed act concerns an EEA (European Economic Area) matter and should therefore extend to the EEA.

4. General comments

4.1 The EESC is interested to note the proposal for a regulation on access to the international road haulage market. In principle the EESC believes that the long-term goal should be to move towards a more liberalised market for road haulage operations within the EU coupled with proper enforcement of Europe-wide standards for health, safety and worker protection and further harmonisation in the fiscal and social fields, including the reduction of the pay gap, i.e. the direction of movement should be towards the Commission's Option 5. This option is in line with the existing Regulation nr 3118/93 and the internal market policy. This might make the industry more competitive with benefits to all of European business as users of haulage services, and might have environmental advantages in reducing the number of empty or part-empty journeys undertaken because of the present restrictions on cabotage.

4.2 The Committee agrees however with the Commission that full liberalisation of the haulage market throughout Europe would be too disruptive at the present time and would carry a grave risk of eroding social and quality standards and reducing compliance with them. It believes that the Commission should be encouraged to undertake the deeper analysis which they have suggested would need to be involved in moving towards further liberalisation in the future. But it agrees with the Commission that the 'harmonisation' option is the best way forward in the immediate future

4.3 In particular, the EESC considers that: — the new definition of cabotage, regulating the conditions under which non-resident hauliers may operate national road haulage services within a Member State; — the requirement for a simplified and standardised format for the Community licence, certified copies and the driver attestation; — enhancing the current legal provisions by obliging a Member State to act, when requested to do so by another Member State, when a haulier to whom it delivered a Community licence commits an infringement in the Member State of establishment or in another Member State; all help to improve the clarity and enforceability of the current rules.

4.4 The Committee wishes to point out that the results of the consultation carried out by the Commission prior to the legislative package and to this proposal in particular suggest that most stakeholders consider that what is needed are rules that are clear, straightforward, applicable, identical in all Member States and easily monitored. The decision taken by the Commission in this proposal to opt for a form of harmonisation entailing a clear and easily enforceable definition of cabotage and largely improved rules on compliance and enforcement would meet the demands of these stakeholders.

4.5 Indeed, although the preamble to Regulation 881/92 refers to eliminating ‘… all restrictions imposed on the provider of services because of his nationality or the fact that he is established in a Member State other than that in which the service is to be provided’, maintaining the derogation, even on a temporary basis, in line with Article 71(2) of the Treaty, would be entirely justified: total liberalisation of the market ‘would be liable to have a serious effect on the standard of living and on employment in certain areas and on the operation of transport facilities …’.

4.6 The EESC considers, however, that the social dimension of access to the international road haulage market warrants closer attention. A number of recitals, recital 13 in particular, do, of course, refer to the Directive concerning the posting of workers (Directive 96/71) in the framework of the provision of services, which should apply in cases where, for the provision of cabotage operations, hauliers post workers who have an employment relationship with those hauliers, from the Member State where they ordinarily work. This recital does not, however, appear in either the articles or the explanatory memorandum.

4.7 This aspect assumes even greater importance since Community legal provisions for the road transport industry, and in particular those concerning the social chapter, are not being properly implemented in all Member States.

5. Specific comments

5.1 Scope (Article 1)

5.1.1 The EESC regrets the fact that the regulation does not apply to international transports of less than 3,5 tonnes. Given the growth of the express and home delivery sector, in border regions too, it would have made sense for this regulation to include the vehicles of less than 3,5 tonnes commonly used in this sector, in order to prevent situations of unfair competition.

5.1.2 The EESC wishes to express its fears concerning the fact that the regulation does not apply to international carriage between a Member State and a third country as long as no agreement between the EU and the third country in question has been concluded. The EESC thus calls on the Commission to make every effort to conclude these agreements, in particular with those States sharing a border with the European Union.

5.2 Definitions (Article 2)

5.2.1 The EESC welcomes the fact that new, clearer definitions of the ‘host Member State’, ‘non-resident haulier’ and ‘cabotage operations’ are provided.

5.3 The operational definition of cabotage (Articles 2 and 8)

5.3.1 The Commission proposal states that hauliers are permitted to carry out up to three cabotage operations consecutive to an international carriage once the goods carried in the course of the incoming international carriage have been delivered. The last cabotage operations must take place within seven days.

5.3.2 The advantage of this operational definition is that it clearly prohibits non-resident hauliers from entering a Member State with an unladen vehicle. Cabotage is only authorised where it precedes or follows a laden international journey.

5.3.3 The drawback lies in the fact that, in theory, the haulier can repeat the operation following the 7-day limit, with the same company, the same type of goods and the same journey. How, in such cases, can the temporary nature of cabotage transport be guaranteed?

5.3.4 The EESC thus calls for the new text to stipulate and emphasise that the ‘temporary nature’ of cabotage is one of its defining features (3).

5.3.5 Although cabotage accounts for only 3 % of international freight transport (4), it is nonetheless of importance to the smaller Member States, where the limited national road haulage markets encourage hauliers to seek out freight opportunities abroad. The statistics might not be 100 % reliable — cabotage is reported by the country in which a haulier is registered — but they do show that this phenomenon is growing (5).

5.3.6 Although the statistics might be open to discussion they show that cabotage accounts for a substantial part of international haulage, especially in the smaller of the older Member States. Dutch hauliers are the most active caboteurs, followed by Germany and Luxembourg. These three countries accounted for half of all cabotage performed by EU-25 hauliers in 2005. Although, conversely, the penetration rate by country (this rate is the percentage of cabotage within a country's domestic market, i.e. national transport plus cabotage) has experienced slow but steady growth, it remains within negligible limits. Since 1999, Belgium, Luxembourg and France have been the most heavily penetrated countries: Belgium 2,87 %, France 2,.50 % and Luxembourg 1,99 % (6). Cabotage penetration in the new Member States is generally below 0,3 %, apart from Latvia at 0,8 %.

5.3.7 The Committee is concerned, however, at the detrimental effects of cabotage — which will be considerable — on small and medium-sized enterprises in the sector, when cabotage is carried out in the old Member States by operators from the new Member States, which will send drivers to carry out cabotage on wages considerably lower than those paid in the host State (7).

5.3.8 The EESC is, of course, not against operators from the new Member States entering the market, but wishes to raise the issue of limiting and monitoring cabotage in order to prevent unfair competition and social dumping. The Committee, therefore, supports the Commission's choice, which is to establish a legal framework that encourages regulated competition and not the complete liberalisation of cabotage.

5.3.9 The assessment of the impact of the measures proposed by the Commission also highlights the increase in cross-trade (some people use the term ‘home trade’) (8). Furthermore, a growing number of freight and logistics companies are establishing offices in the new Member States and are sending drivers from these countries to carry out international transport between old Member States. The pricing of this transport excludes all competition because it is based on the wage gap between drivers from the old and new Member States. The proposal for a regulation makes no reference to this other aspect of unfair competition and social dumping.

5.3.10 This is also why the EESC regrets the absence of the social aspect from the legislative package and from this proposal in particular. No account is taken of the considerable wage gap that exists between the new and old Member States in the sector, or of the detrimental effect on small and medium-sized enterprises, employment and drivers' wages.

5.3.11 Turning to the issue of monitoring cabotage (Article 8), according to the Commission, enforcement bodies will be able to check more easily whether a cabotage is lawful by looking at the CMR consignment letters which indicate the dates of loading and unloading of an international carriage. Furthermore, for each cabotage operation, the following details must be provided: the sender, the haulier and the consignee, the place and the date of taking over of the goods and the place designated for delivery, the description in common use of the nature of the goods and the method of packing and, in the case of dangerous goods, their generally recognised description as well as the number of packages and their special marks and numbers, the gross weight of the goods or their quantity otherwise expressed and the number plates of the motor vehicle and trailer. Such data will certainly help to improve monitoring of the cabotage operation, which should take place within seven days. The EESC considers, however, that requiring a cabotage operation to take place within seven days could make it easier to monitor.

6. What is the relevance of the directive concerning the posting of workers?

6.1 The Directive concerning the posting of workers (Directive 96/71) in the framework of the provision of services, should apply in cases where, for the provision of cabotage operations, hauliers post workers, who have an employment relationship with those hauliers, from the Member State where they ordinarily work.

6.2 The problem lies in the manner in which this directive has been transposed into national legislation ... which, in this specific case has resulted in its implementation differing in terms of the sectors covered and the duration of service provision. Consequently, some countries apply the directive only to the construction sector, whilst others make application of the directive mandatory from the first day on which service is provided (9). Furthermore, the Directive enables Member States to exempt the sector from the regulation, by means of collective agreements, where the length of the posting does not exceed one month (10).

6.3 Where cabotage is concerned, given that the directive's implementation today varies from one State to another, even if properly implemented, it will not solve the problems of unfair competition and social dumping.

6.4 Furthermore, checks on the implementation of the directive on posting are non-existent (11). This is a remarkable omission, given that each Member State is obliged to make provision for cooperation between the public authorities which, in accordance with social security legislation, are responsible, as set out in the directive referred to above (12).

6.5 The EESC will, therefore, take note of the results of the European social dialogue in the road haulage sector on this subject.

7. Driver attestation (Article 5)

7.1 The EESC calls for the attestation of drivers who are third-country nationals also to state that they are registered with the social security system.

8. Enforcement (Articles 10 to 15)

8.1 The proposal for a regulation requires Member States to exchange information using the contact points established pursuant to the new regulation on the admission to the occupation of road transport operator. These are designated administrative bodies or authorities in charge of carrying out the information exchange with their counterparts in the other Member States.

8.2 It is also stipulated that Member States enter in their national register of road transport undertakings all serious infringements and repeated minor infringements committed by their own haulier and which have led to the imposition of a sanction.

8.3 The proposal for a regulation introduces a new procedure to be followed by a Member State detecting an infringement committed by a non-resident haulier. This Member State has one month to communicate the information according to a minimum standard format. It may ask the Member State of establishment to impose administrative sanctions. The Member State of establishment of the haulier concerned has three months to inform the other Member State of the follow-up.

8.4 The EESC considers these new provisions to represent progress. The Committee regrets, however, the fragmentation and diversity of principles and procedures in the enforcement and implementation of European road haulage legislation. The EESC considers that the principle of extraterritoriality, which applies to legislation on driving time and rest periods (Regulation 561/2006), should also be enforced in the event of infringements of legislation on cabotage. This would provide a greater incentive to comply with legislation.

8.5 Directive 2006/22 stipulates a coherent national enforcement strategy and requires Member States to appoint a body to coordinate enforcement of legislation on driving time and rest periods. The EESC considers that enforcement with regard to cabotage should form part of this strategy.

8.6 The same applies to the committee established to assist the Commission. The EESC is against this proliferation of committees and calls for a single committee, made up of members representing the Member States and the social partners as observers, entrusted with the task of assisting the Commission in enforcing and implementing European road haulage legislation.

Brussels, 12 March 2008. The President of the European Economic and Social Committee Dimitris DIMITRIADIS

(1) Cross-trade is deemed to be carriage between country A and country B undertaken by a haulier established in country C.

(2) Article 71, OJ C 325, 24.12.2002, p. 61, states that:

‘1. For the purpose of implementing Article 70, and taking into account the distinctive features of transport, the Council shall, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions, lay down: a) ommon rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States; b) the conditions under which non-resident hauliers may operate transport services within a Member State; c) measures to improve transport safety; d) any other appropriate provisions. 2. By way of derogation from the procedure provided for in paragraph 1, where the application of provisions concerning the principles of the regulatory system for transport would be liable to have a serious effect on the standard of living and on employment in certain areas and on the operation of transport facilities, they shall be laid down by the Council acting unanimously on a proposal from the Commission, after consulting the European Parliament and the Economic and Social Committee. In so doing, the Council shall take into account the need for adaptation to the economic development which will result from establishing the common market’.

(3) Based on Council Regulation (EEC) No 3118/93 of 25 October 1993 laying down the conditions under which non-resident hauliers may operate national road haulage services within a Member State (OJ L 279, 12.11.93, p. 1) and the Commission interpretative communication on the temporary nature of road cabotage in the movement of freight, of December 2004.

(4) Statistics in focus, Yves Mathieu, 77/2007, ‘Trends in road freight transport’ 1999-2005, page 4.

(5) Statistics in focus, Simo Pasi, 27/2007, trends in road freight transport 1999-2005, page 6; in 2005, there was an increase of 2 % compared to 2004.

(6) Statistics in focus, Simo Pasi, 27/2007, trends in road freight transport 1999-2005, page 6; in 2005, there was an increase of 2 % compared to 2004.

(7) Commission staff working paper, impact assessment SEC(2007)635/2 explains that labour costs (drivers) in particular can vary from 1 to 3 and even in some cases from 1 to 6 (page 6).

(8) Commission staff working paper, Impact assessment, SEC(2007) 635/2, page 6 stipulates: ‘cross-trade grew steadily at an annual average rate of 4,4 % between 1999 and 2003.This rate increased to over 20 % for 2004 and 2005’.

(9) Jan Cremers, Peter Donders, Editors, ‘The free movement of workers in the European Union’, European Institute for Construction Labour Research, CLR studies 4, 2004. This holds true of the Netherlands in particular, which applies the directive to the Construction sector and excludes all others, whilst Belgium applies the postings directive from the first day on which service is provided.

(10) Article 3(4) of Directive 96/71/EC.

(11) Ecorys, ‘study on road cabotage in the freight transport market’, report for DG TREN, page 8.

(12) Directive 96/71/EC, Article 3.