Common Position (EC) No 20/2001 of 23 March 2001 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council on the organisation of the working time of persons whose occupation is the performance of mobile road-transport activities
Date: 2001-03-23
Institutions: Council of the European Union
Subjects: arrangement of working time, drivers, occupational safety, organisation of work, road transport, working time

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COMMON POSITION (EC) No 20/2001

adopted by the Council on 23 March 2001

with a view to adopting Directive 2001/(cid:133)/EC of the European Parliament and of the Council of
(cid:133) on the organisation of the working time of persons whose occupation is the performance of
mobile road-transport activities

(2001/C 142/04)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

(5)

Having regard to the Treaty establishing the European
Community, and in particular Articles 71 and 137(2) thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of
Committee (2),

the Economic and Social

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article
251 of the Treaty (3),

Whereas:

(1)

(2)

(3)

(4)

Council Regulation (EEC) No 3820/85 of 20 December
1985 on the harmonisation of certain social legislation
relating to road transport (4) laid down common rules
on driving times and rest periods for drivers. That
Regulation does not cover other aspects of working
time for road transport.

Council Directive 93/104/EC of 23 November 1993
concerning certain aspects of
the organisation of
working time (5) makes
it possible to adopt more
specific requirements for the organisation of working
time. Bearing in mind the sectoral nature of
this
Directive, the provisions thereof take precedence over
Directive 93/104/EC by virtue of Article 14 thereof.

social
intensive negotiations between the
Despite
partners, it has not been possible to reach agreement on
the subject of mobile workers in road transport.

It is therefore necessary to lay down a series of more
specific provisions concerning the hours of work in
road transport intended to ensure the safety of transport
and the health and safety of the persons involved.

(1) OJ C 43, 17.2.1999, p. 4.
(2) OJ C 138, 18.5.1999, p. 33.
(3) Opinion of the European Parliament of 14 April 1999 (OJ C 219,
30.7.1999, p. 235), as confirmed on 6 May 1999 (OJ C 279,
1.10.1999, p. 270), Council Common Position of 23 March 2001
and Decision of the European Parliament of (cid:133) (not yet published
in the Official Journal).
(4) OJ L 370, 31.12.1985, p. 1.
(5) OJ L 307, 13.12.1993, p. 18. Directive as amended by Directive
the Council

the European Parliament and of

2000/34/EC of
(OJ L 195, 1.8.2000, p. 41).

the scale and effects of

Since the objectives of the proposed action cannot be
sufficiently achieved by the Member States and can
therefore, by reason of
the
proposed action be better achieved at Community level,
the Community may adopt measures,
in accordance
with the principle of subsidiarity as set out in Article 5
of
In accordance with the principle of
proportionality, as set out in that Article, this Directive
does not go beyond what
is necessary in order to
achieve those objectives.

the Treaty.

The scope of this Directive covers only mobile workers
employed by transport undertakings established in a
Member State participating in mobile road-transport
activities covered by Regulation (EEC) No 3820/85 or,
failing that, by the European agreement concerning the
work of crews of vehicles engaged in international road
transport (AETR).

of

scope

this Directive,

It should be made clear that mobile workers excluded
from the
than
self-employed drivers, benefit from the basic protection
in Directive 93/104/EC. That basic
provided for
protection includes the existing rules on adequate rest,
the maximum average working week, annual leave and
certain basic provisions for night workers including
health assessment.

other

As self-employed drivers are included within the scope
of Regulation (EEC) No 3820/85 but excluded from that
excluded
of Directive 93/104/EC,
this Directive on the
temporarily from the scope of
understanding that
the
consequences of that temporary exclusion.

the Commission will assess

they should be

(6)

(7)

(8)

(9)

The definitions used in this Directive are not
to
constitute a precedent for other Community regulations
on working time.

(10)

In order to improve road safety, prevent the distortion
of competition and guarantee the safety and health of
the mobile workers covered by this Directive, the latter
should know exactly which periods devoted to road
transport activities constitute working time and which
do not and are thus deemed to be break times, rest
times or periods of availability. These workers should be

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granted minimum daily and weekly periods of rest, and
a
adequate breaks.
maximum limit on the number of weekly working
hours.

also necessary to place

is

It

(11)

the human body is more
Research has shown that
sensitive at night
to environmental disturbances and
also to certain burdensome forms of organisation and
that long periods of night work can be detrimental to
the health of workers and can endanger their safety and
also road safety in general.

(12) As a consequence, there is a need to limit the duration
of periods of night work and to provide
that
professional drivers who work at night should receive
appropriate compensation for their activity and should
not be disadvantaged as regards training opportunities.

(13)

(14)

(15)

(16)

Employers should keep records of instances when the
maximum average working week applicable to mobile
workers is exceeded.

The provisions of Regulation (EEC) No 3820/85 on
driving time in international and national passenger
transport, other than regular services, should continue
to apply. The working time of drivers carrying out such
transport may therefore, subject to certain conditions,
exceed the maximum weekly average laid down in this
Directive for goods transport and for regular passenger
transport services.

The Commission should monitor the implementation of
this Directive and developments in this field in the
Member States and submit to the European Parliament,
the Council, the Economic and Social Committee and
the Committee of
report on the
the Regions
application of the rules and the consequences of the
provisions on night work.

a

to derogations

It is necessary to provide that certain provisions may be
subject
according to the
circumstances, by the Member States or the two sides of
industry. As a general rule, in the event of a derogation,
the workers concerned must be given compensatory rest
periods,

adopted,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Purpose

order to improve the health-and-safety protection of persons
whose occupation is the performance of mobile road-transport
activities and to improve road safety and align conditions of
competition.

Article 2

Scope

1.
This Directive shall apply to mobile workers employed
by undertakings established in a Member State, participating in
road-transport activities covered by Regulation (EEC) No
3820/85 or, failing that, by the AETR Agreement.

shall analyse in particular

By (cid:133) (*), the Commission shall submit an assessment of the
consequences of
the temporary exclusion of self-employed
drivers to the European Parliament and to the Council. The
the
assessment
exclusion of
self-employed drivers on road safety, on
conditions of competition, on the structure of the profession
and on social aspects. Depending on the outcome of
that
analysis,
appropriate,
the Commission will propose,
to
under which this Directive will
conditions
self-employed drivers, the definition of which will have to be
made clear, at the latest on (cid:133) (**).

the effects of

apply

if

The provisions of Directive 93/104/EC shall apply to

2.
mobile workers excluded from the scope of this Directive.

In so far as
as

this Directive contains more specific
3.
regards mobile workers performing road
provisions
transport activities it shall, pursuant to Article 14 of Directive
93/104/EC, take precedence over the relevant provisions of
that Directive.

shall

This Directive

the provisions of
4.
Regulation (EEC) No 3820/85 and, where necessary, of the
AETR Agreement, which take precedence over the provisions
of this Directive.

supplement

Article 3

Definitions

For the purposes of this Directive:

(a)

(cid:145)working time(cid:146) shall mean the time from the beginning to
the end of work, during which the mobile worker is at his
workstation, at the disposal of the employer and exercising
his functions or activities, that is to say:

(cid:151) the time devoted to all road transport activities. These
activities are in particular,
the following: driving,
loading and unloading, assisting passengers boarding
and disembarking from the vehicle, cleaning and
technical maintenance as well as all other work
intended to ensure the safety of the vehicle, its cargo
and passengers,

The purpose of this Directive shall be to establish minimum
requirements in relation to the organisation of working time in

(*)
Five years after the entry into force of this Directive.
(**) Six years after the entry into force of this Directive.

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(cid:151) the times during which the mobile worker is required
to remain at his workstation, ready to take up work,
and cannot, on the instructions of his employer,
dispose freely of his time, in particular during periods
awaiting loading or unloading, where their forseeable
duration is not known in advance, that is to say either
before departure or just before the actual start of the
period in question, or under the general conditions
negotiated between the social partners and/or under
the terms of the legislation of the Member States.

The break times referred to in Article 5, the rest times
referred to in Article 6 and, without prejudice to the
legislation of Member States or agreements between the
social partners providing that such periods should be
compensated or limited, the periods of availability referred
to in (b) of this Article, shall be excluded from working
time;

(e)

(cid:145)self-employed driver(cid:146)
shall mean anyone whose main
occupation is to carry passengers or goods by road at a
customer’s request;

(f)

(cid:145)week(cid:146) shall mean the period between 00.00 on Monday
and 24.00 on Sunday;

(g)

(cid:145)night time(cid:146) shall mean a period of at least four hours, as
defined by national law, between 00.00 and 07.00;

(h)

(cid:145)night work(cid:146) shall mean any work performed during night
time.

Article 4

(b)

(cid:145)periods of availability(cid:146) shall mean:

Maximum weekly working time

(cid:151) periods other than those relating to break times and
rest
times during which the mobile worker is not
required to remain at his workstation, but must be
available to answer any calls to start or resume driving
or to carry out other work. In particular such periods
include periods during which the
of availability shall
mobile worker
is accompanying a vehicle being
transported by ferryboat or by train as well as periods
of waiting at
frontiers and those due to traffic
prohibitions.

These periods and their foreseeable duration shall be
known in advance by the mobile worker, that is to say
either before departure or just before the actual start of
the period in question, or under the general conditions
negotiated between the social partners and/or under
the terms of the legislation of the Member States,

(cid:151) for mobile workers driving in a team, the time spent
sitting next to the driver or on the couchette while the
vehicle is in motion;

(c)

(cid:145)workstation(cid:146) shall mean:

(cid:151) the location of the undertaking for which the mobile

worker carries out duties,

(cid:151) the vehicle which the mobile worker uses when he

carries out duties and

(cid:151) any other place in which activities connected with

transportation are carried out;

(d)

(cid:145)mobile worker(cid:146) shall mean any worker forming part of the
travelling staff, including trainees and apprentices, who is
in the service of an undertaking which operates transport
services for passengers or goods by road for hire or reward
or on its own account;

Member States shall take the measures necessary to ensure
that:

(a)

the average weekly working time may not exceed 48
hours. The maximum weekly working time may be
extended to 60 hours only if, over four months, an
average of 48 hours a week is not exceeded. The fourth
and fifth subparagraphs of Article 6(1) of Regulation (EEC)
No 3820/85 or, where necessary, the fourth subparagraph
of Article 6(1) of
take
precedence over this Directive,
in so far as the drivers
concerned do not exceed an average working time of 48
hours a week over four months;

the AETR Agreement

shall

(b) working time for different employers is the sum of the
working hours. The employer shall ask the mobile worker
concerned in writing for an account of time worked for
another employer. The mobile worker shall provide such
information in writing.

Article 5

Breaks

1. Member States shall
take the measures necessary to
ensure that, without prejudice to the level of protection
provided by Regulation (EEC) No 3820/85 or, failing that, by
the AETR Agreement, mobile workers in no circumstances
work for more than six consecutive hours without a break.
Working time shall be interrupted by a break of at least 30
minutes, if working hours total between six and nine hours,
and of at least 45 minutes, if working hours total more than
nine hours.

Breaks may be subdivided into periods of at least 15

2.
minutes each.

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Article 6

Rest periods

For the purposes of this Directive, apprentices and trainees
shall be covered by the same provisions on rest time as other
mobile workers in pursuance of Regulation (EEC) No 3820/85
or, failing that, of the AETR Agreement.

Article 7

Night work

1. Member States shall
ensure that:

take the measures necessary to

(cid:151) if night work is performed, the daily working time does

not exceed 10 hours in each 24-hour period,

(cid:151) compensation for night work is given in accordance with
national
legislative measures,
agreements,
industry and/or
agreements between the two sides of
national practice, on condition that such compensation is
not liable to endanger road safety.

collective

By (cid:133) (*), the Commission shall, within the framework of
2.
the report which it draws up in accordance with Article 13(2),
assess
laid down in
paragraph 1 above. The Commission shall, if necessary, submit
appropriate proposals along with that report.

the consequences of

the provisions

Article 9

Information and records

Member States shall ensure that:

agreements

(a) mobile workers are informed of
the internal rules of

the relevant national
requirements,
the undertaking and
agreements between the two sides of industry, in particular
collective
and any company agreements,
reached on the basis of this Directive, without prejudice to
Council Directive 91/533/EEC of 14 October 1991 on an
employer’s obligation to inform employees of
the
conditions applicable to the contract or employment
relationship (1);

(b) the working time of mobile workers is recorded. Records
shall be preserved for at least one year after the end of the
period covered. Employers
for
recording the working time of mobile workers. Employers
shall upon request provide mobile workers with copies of
the records of hours worked.

responsible

shall be

Article 10

More favourable provisions

This Directive shall not affect Member States’ right to apply or
introduce laws, regulations or administrative provisions more
favourable to the protection of the health and safety of mobile
workers or their right to facilitate or permit the application of
collective agreements or other agreements concluded between
the two sides of industry which are more favourable to the
protection of the health and safety of mobile workers.

3.
The Commission shall present a proposal for a Directive
containing provisions relating to the training of professional
drivers, including those who perform night work, and laying
down the general principles of such training.

Article 11

Penalties

Article 8

Derogations

lay down a system of penalties for
Member States shall
breaches of the national provisions adopted pursuant to this
Directive and shall take all the measures necessary to ensure
that these penalties are applied. The penalties thus provided for
shall be effective, proportional and dissuasive.

Derogations from Articles 4 and 7 may be adopted by
1.
means of laws, regulations or administrative provisions or by
means of collective agreements or agreements between the two
sides of
the persons concerned are
afforded equivalent periods of compensatory rest.

industry, provided that

2.
The option to derogate from Article 4 may not result in
the establishment of a reference period exceeding six months,
for calculation of the average maximum weekly working time
of 48 hours.

Article 12

Negotiations with third countries

Once this Directive has entered into force, the Community
shall begin negotiations with the relevant third countries with
a view to the application of rules equivalent to those laid
down in this Directive to mobile workers employed by
undertakings established in a third country.

(*)

Five years after the entry into force of this Directive.

(1) OJ L 288, 18.10.1991, p. 32.

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Article 13

Reports

1. Member States shall report to the Commission every two
years on the implementation of this Directive, indicating the
views of the two sides of industry. The report must reach the
Commission no later than 30 September following the date on
which the two-year period covered by the report expires. The
two-year period shall be the same as that referred to in Article
16(2) of Regulation (EEC) No 3820/85.

2.
The Commission shall produce a report every two years
on the implementation of this Directive by Member States and
developments in the field in question. The Commission shall
forward this report to the European Parliament, the Council,
the Economic and Social Committee and the Committee of the
Regions.

Article 14

Final provisions

the laws, regulations and
1. Member States shall adopt
administrative provisions necessary to comply with this
Directive by (cid:133) (*) or shall ensure by that date that the two
sides of industry have established the necessary measures by
agreement, the Member States being obliged to take any steps
to allow them to be able at any time to guarantee the results
required by this Directive.

When Member States adopt the measures referred to in the
first subparagraph,
they shall contain a reference to this
Directive or shall be accompanied by such reference on the
occasion of their official publication. The methods of making
such reference shall be laid down by Member States.

2. Without prejudice to the right of Member States to
in the light of changing circumstances, different
develop,
legislative, regulatory or contractual provisions in the field of
working time, as long as the minimum requirements provided
for in this Directive are complied with, implementation of this
Directive shall not constitute valid grounds for reducing the
general level of protection afforded to the persons referred to
in Article 2(1).

3. Member States shall communicate to the Commission the
provisions of national law which they have already adopted or
which they adopt in the field covered by this Directive.

Article 15

Entry into force

This Directive shall enter
publication in the Official Journal of the European Communities.

into force on the day of

its

Article 16

Addressees

This Directive is addressed to the Member States.

Done at (cid:133)

For the European Parliament

The President

For the Council

The President

(*)

Three years after the entry into force of this Directive.

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STATEMENT OF THE COUNCIL’S REASONS

I.

INTRODUCTION

On 25 November 1998, the Commission submitted in the context of its communication (1) on the
organisation of working time in the sectors and activities excluded from Directive 93/104/EC (2), a
proposal for a specific directive for the road transport sector, namely a proposal for a Council
directive concerning the organisation of working time for mobile workers performing road transport
activities and for self-employed drivers (3). The proposal was based on Articles 71 and 137(2) of the
EC Treaty.

The European Parliament delivered its opinion on the Commission proposal on 14 April 1999 (4)
and, in its resolution of 6 May 1999 (5), confirmed its vote on the proposal for which the procedure
had been changed (from cooperation to codecision) following the entry into force of the Treaty of
Amsterdam.

The Economic and Social Committee delivered its opinion on 25 March 1999 (6).

The Committee of the Regions decided not to deliver an opinion (7).

On 27 November 2000, the Commission submitted an amended proposal and, at the Council meeting
on 20 and 21 December 2000, further amended its proposal in accordance with the draft Common
Position of the Council.

The Council adopted its Common Position in accordance with Article 251 of the EC Treaty on
23 March 2001.

II. PURPOSE

Within the framework of the general Directive 93/104/EC, the Commission has proposed a specific
Directive on working time for
the particular
characteristics of activities in this sector.

to take account of

the road transport

sector

Community social
two
regulations and one directive, namely Regulation (EEC) No 3820/85 (8), Regulation (EEC) No
3821/85 (9) and Directive 88/599/EEC (10).

legislation applicable to the road transport sector currently consists of

1. Regulation (EEC) No 3820/85 includes, inter alia provisions applicable to employed drivers and
self-employed workers engaged in passenger
road haulage within the
Community. The provisions of the European agreement concerning the work of crews of vehicles
transport
engaged in international road transport
operations covered by the Regulation.

(AETR) (11) apply to certain international

road transport or

(1) OJ C 43, 17.2.1999, p. 1.
(2) Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time
(ABl. OJ L 307, 13.12.1993, p. 18). Directive 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).

(3) OJ C 43, 17.2.1999, p. 4.
(4) OJ C 219, 30.7.1999, p. 231.
(5) OJ C 279, 1.10.1999, p. 270.
(6) OJ C 138, 18.5.1999, p. 33.
(7) Letter of 25 June 1999.
(8) Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation

relating to road transport (OJ L 370, 31.12.1985, p. 1).

(9) Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (OJ L 370,
31.12.1985, p. 8). Regulation last amended by Regulation (EC) No 2135/98 also amending Directive 88/599/EEC
(OJ L 274, 9.10.1998, p. 1).

(10) Council Directive 88/599/EEC of 23 November 1988 on standard checking procedures for the implementation of
Regulations (EEC) No 3820/85 and (EEC) No 3821/85 (OJ L 325, 29.11.1988, p. 55). Directive last amended by
Regulation (EC) No 2135/98.

(11) Agreement of 1 July 1970, opened for signing in Geneva until 31 March 1971.

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The Regulation includes provisions on the requirements to be met by crews (e.g. age, vocational
training), driving periods, breaks and rest periods for drivers, prohibition of certain types of
payment, possibility of exceptions, control procedures and penalties.

The Regulation provides solely for driving periods and includes no rules to cover the other periods
which mobile workers and self-employed drivers spend working. The provisions on working time
vary from one Member State to another both in form and in detail.

2. The Commission sees no justification in the context of the internal market for maintaining
differences in working time as this places the undertakings concerned in a situation of unfair
competition. The Commission contends therefore that common rules on working hours are
essential. From the point of view of the liberalisation and development of road transport and
increased trade with third countries, in its view these rules are also needed to prevent deteriorating
working conditions for drivers and to avoid jeopardising safety.

The Commission also emphasises that all drivers, both employed and self-employed, should be
placed on an equal footing, which entails bringing within the scope of the regulations on working
hours those forms of subcontracting currently not covered by it.

3.

It is for these reasons that the proposal for a sectoral directive provides for the fixing of common
rules for the working hours of mobile workers and self-employed drivers. The Commission’s initial
1998 proposal did not provide for the temporary exclusion of self-employed drivers from the
scope of the Directive. According to the amended proposal of November 2000, however, the
the deadline for
Directive will be applicable to self-employed drivers
the European
transposition. The Commission amended its proposal on this point, not at
Parliament’s request, but to take account of the deadlock within the Council due to the differences
between delegations on whether or not the Directive should cover self-employed drivers. As
indicated in part I above, the Commission once again amended its proposal in December 2000, in
accordance with the Council’s Common Position.

three years after

III. ANALYSIS OF THE COMMON POSITION

1. Scope of the Directive (Article 2 in particular)

According to the Common Position, the Directive is applicable solely to mobile workers employed
by transport undertakings established in a Member State participating in mobile road-transport
activities covered by Regulation (EEC) No 3820/85 or, failing that, by the AETR Agreement. It
also stipulates that the basic protection provided for by general Directive 93/104/EEC extends to
the other mobile workers excluded from its scope.

Depending on the outcome of the results of an assessment it should submit no later than five
years after the Directive’s entry into force, the Commission will propose, if appropriate, conditions
under which self-employed drivers will be subject to the provisions of the Directive no later than
six years after the date of its entry into force.

2. Definitions of (cid:145)working time(cid:146) and (cid:145)periods of availability(cid:146) (Article 3(a) and (b))

The Common Position includes in the definition of (cid:145)working time(cid:146), the times during which the
mobile worker is required to remain at his place of work, and cannot, on the instructions of his
employer, dispose freely of his time. It adds by way of example, that periods spent awaiting
loading or unloading are to be regarded as working time where their duration is not known in
advance, and clarifies this criterion.

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The Common Position defines as (cid:145)periods of availability(cid:146), in accordance with Regulation (EEC) No
3821/85, the periods other than those relating to break times and rest times during which the
mobile worker is not required to remain at his place of work, but must be available to answer any
calls to start or resume driving or to carry out other work. These periods and their foreseeable
duration shall be known in advance by the mobile worker, that is to say either before departure or
just before the effective start of the period in question, or under the general conditions negotiated
between the social partners and/or under the terms of the legislation of the Member States.

These periods are not regarded as working time.

3. Night work (Article 3(g) and (h) (cid:151) definitions (cid:151) and Article 7 (cid:151) rules)

The Common Position considers (cid:145)night work(cid:146) to be any work performed during the night time,
namely between 00.00 and 07.00 and stipulates that the daily working time of night workers in
each 24-hour period must not exceed 10 hours. It also provides for the possibility of derogations.

IV. EUROPEAN PARLIAMENT AMENDMENTS

1. European Parliament amendments adopted by the Council and by the Commission

The Council accepted as they stood, in part or in spirit, 8 of the 16 amendments submitted by the
European Parliament:

(cid:151) in recital 14 of the Common Position relating to Article 4(a), amendment 1,

(cid:151) in Article 2(1), amendments 2 and 25. Exclusion from the scope of the Directive of mobile
workers participating in road-transport activities not covered by Regulation (EEC) No 3820/85
entails the exclusion from the Directive’s application of the cases covered by these two
amendments,

(cid:151) in Article 3(a), first indent ((cid:145)time spent on all other work intended to ensure the safety of the

vehicle, its cargo and passengers shall be regarded as working time(cid:146)), amendment 7,

(cid:151) in Article 8, amendment 12, parts 2 and 3, and amendment 13,

(cid:151) in Article 9(b), amendment 14, (records, however, being kept for one year as opposed to the

two years provided for in the amendment) and amendment 15,

(cid:151) in Article 14(2), amendment 17 concerning the addition of the non-regression clause. The
Council considered it preferable to include this clause in the Article on final provisions rather
than in Article 10 (Article 9 of the amended proposal), on more favourable provisions.

The Commission amended its proposal in accordance with the Council Common Position.

2. European Parliament amendments not adopted by the Council and the Commission

The Council did not adopt the following amendments.

The Commission amended its proposal in accordance with the Council Common Position.

2.1. Self-employed drivers

In view of the temporary exclusion of self-employed drivers from the scope of the Directive,
the Council rejected the amendments that specifically concerned these drivers, namely

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amendments 3, 4, 5, 6, 8, first part, and 16. In accordance with the European Parliament’s
request, reflected in amendment 10, the Common Position (Article 3(e)) has incorporated in
the Directive a definition of (cid:145)self-employed drivers(cid:146). This definition differs from that proposed
by the European Parliament, but it is not definitive, in the light of the second subparagraph
of Article 2(1) of the Common Position.

2.2. Night work (Article 3(g) and (h) and Article 7)

The Council rejected amendments 9, 30 and 12, first part (removal of the possibility of
derogating from Article 7) aimed at offering the persons concerned the necessary protection
as regards health and safety. The Council felt that there should be some flexibility in the
regulation of the night work of mobile workers engaged in road transport activities given the
nature of the activity involved. Moreover, Article 17a of Directive 93/104/EC stipulates that
Article 8 on the duration of periods of night work is not applicable to mobile workers:
common rules on the subject are therefore covered by sectoral directives which adapt them
on the basis of specific requirements.

2.3. Knowing in advance when (cid:145)periods of availability(cid:146) start (Article 3(b))

that

to the effect

The Council rejected amendment 8, second part,
(cid:145)standby periods(cid:146)
corresponding to (cid:145)periods of availability(cid:146) provided for in Article 3(b) of the Common Position
must be known (cid:145)at least one day in advance and prior to the completion of the previous
shift in accordance with the conditions negotiated between the social partners and under the
terms provided for in the legislation of the Member States(cid:146).
In order to guarantee the
flexibility necessary for the performance of road transport activities, the Common Position
stipulates that mobile workers must be told to remain available (cid:145)either before departure or
just before the effective start of the period in question, or under the general conditions
negotiated between the social partners and/or under the terms of the legislation of the
Member States(cid:146).

2.4. Derogations in respect of rest periods (Article 8)

The European Parliament proposes in the first part of amendment 12 to provide for
derogations from the provision on rest periods (Article 6 of the Common Position). Article 8
of the Common Position does not, however, grant this option as Article 6 on rest periods
differs from the initial Commission proposal and no longer provides for additional clauses
concerning rest periods for mobile workers not subject to Regulation (EEC) No 3820/85 or,
alternatively, to the AETR Agreement. Article 2(2) of the common position stipulates that
the provisions of general Directive 93/104/EC are applicable to these mobile workers.

2.5. Penalties (Article 11)

The Council rejected amendment 18 to the effect that Member States shall determine a
common range of penalties. The Council found it unacceptable that Member States should
be obliged to harmonise their penalty arrangements. In accordance with the subsidiarity
principle, Member States are free to make their own arrangements in this area.

2.6. Regulation of subcontracting

The Council rejected amendment 19 inserting in the Article on the final provisions (Article
14 of the Common Position) a new paragraph concerning,
inter alia, the regulation of
subcontracting. The Council felt that this was a matter for the Member States.